IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20131021

Docket: 91190

Registry:
Kelowna

Between:

Destiny Tarasevich

Plaintiff

And

Jessica Samsam

Defendant

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
The plaintiff’s hips and sacrum were seriously injured in a motor
vehicle accident. She has sued to recover damages for those injuries. The
contest between the parties centers on the degree to which her injuries will
limit her ability to work and to perform household tasks in the future.

The Facts

[2]            
On July 11, 2010, the plaintiff was a restrained left-rear seat
passenger in the defendant’s compact two door coupe. The defendant negligently
turned left across the path of an oncoming vehicle. The oncoming car struck the
defendant’s vehicle just behind its driver’s door. The impact was directly
adjacent to the plaintiff’s position.

[3]            
The defendant’s car was badly damaged. Firefighters had to use the “jaws
of life” to extract the plaintiff from the wreck. Although she was reportedly
conscious at the scene, the plaintiff has no present memory of the collision or
of its immediate aftermath.

[4]            
The plaintiff was transported to the Kelowna General Hospital.
Approximately a week later, she underwent surgical reduction of fractures to
her right hip. Plates and screws were installed to hold her pelvis together.
The plaintiff was held in hospital for about two weeks. She was released into
her mother’s care. She was readmitted to hospital for a week in August for
treatment of complications stemming from her injuries.

[5]            
The plaintiff was largely confined to her bed for approximately two
months after her injury. She used a wheelchair for mobility until October or
November 2010. The plaintiff gradually became weight bearing on her injured
hips.

[6]            
The plaintiff’s family physician accurately tabulated the plaintiff’s
injuries thus:

·                
Acetabular fracture of the right hip requiring surgical reduction
and stabilization;

·                
Acetabular fracture of the left hip;

·                
Left sacral fracture;

·                
Pelvic fracture;

·                
Low back injury including the sacroiliac joint;

·                
Shoulder girdle and neck strain with associated headaches;

·                
Laceration above the left eye;

·                
Pain and numbness of the surgical scar on her right hip.

[7]            
The plaintiff was 21 years old when she was injured. She had finished
Grade 12, but unbeknownst to her, she had not actually accumulated enough
credits to actually graduate. Her ambition was to take college courses to
become an overseas teacher of English as a second language or to become an
office administrator. In the three years between finishing Grade 12 and the
accident, the plaintiff did not actually enroll in any classes to achieve those
goals. The plaintiff’s family is of modest means – it would have been for the
plaintiff alone to have earned enough money for her tuition and books.

[8]            
The plaintiff was not, however, idle. She began her working life as a
Walmart cashier at age 15. She then took a job selling clothes at a Guess Inc.
store. The plaintiff moved from that position to a sales job at another
clothing store called Below the Belt. The plaintiff worked full-time at Guess
and Below the Belt. In the latter job she was promoted to “keyholder”, which
meant that she was responsible to open and close the store. As “keyholder”, the
plaintiff was junior only to the store manager and his assistant. The plaintiff
earned $12 per hour in that position and she worked 40 hours per week. Her
annual income was on the order of $24,960.

[9]            
The plaintiff was in good health before the accident. She was socially
and recreationally active. The plaintiff was vivacious and outgoing. She had
many friends. She enjoyed going to nightclubs and other venues where she would
dance and have a good time. The plaintiff enjoyed outdoor activities such as hiking,
camping, jogging, and snowboarding. She worked as a chaperone for an after‑school
snowboarding program hosted by a ski hill near Kelowna. As a chaperone, she
cared for the children en route to and from the ski hill and joined them on the
slopes.

[10]        
The plaintiff recuperated at home for several months after the accident.
The plaintiff began to mobilize independently in October and November 2010. Her
progress was hindered by persistent pain in both hips, her low back –
particularly in the area of her sacrum – and neck pain and shoulder pain
associated with soft tissue injuries. Nevertheless the plaintiff maintained a
generally optimistic outlook for eventual recovery. In January 2011, she
returned to her chaperone work for the school children, but when she did, she
did not go out on the hill with the children as she had done in the past.

[11]        
In the fall of 2011, the plaintiff’s wage replacement benefits ceased.
She began to feel considerable financial pressure. She was not, however, fit to
work in her regular occupation.

[12]        
In April 2012, the plaintiff accepted an offer of work as a housecleaner
for a business operated by a family friend. She worked more than part-time but
less than full-time hours as a housecleaner from then until the early fall of
2012. The plaintiff was restricted to doing light cleaning tasks such as
dusting, wiping counters, and tidying clutter. She also did office work for her
employer. Her employer was sympathetic to the plaintiff’s situation and
accommodated the plaintiff as best as she could. She encouraged the plaintiff
to take breaks whenever she needed, to lie down to rest when necessary, and to
light work that the employer would otherwise have performed. Despite these
accommodations, the plaintiff nevertheless missed numerous shifts of work owing
to pain and fatigue caused by her injuries. The plaintiff was eventually let go
from that job.

[13]        
Out of financial necessity, in October 2012, the plaintiff started
working as a retail sales clerk at a clothing store in Kelowna. She began in a
part-time position but her hours were increased to full-time work. She accepted
a promotion to “keyholder” position at the outlet store. The plaintiff was a
good worker but she was hampered in her duties by her injuries. She had to take
frequent breaks from the sales floor and sometimes her pain and frustration
negatively affected her performance.

[14]        
As a keyholder, the plaintiff was required to work a certain number of
shifts every week. It was her duty to open and close the store and to do
managerial tasks when her supervisors were not on site. The plaintiff was not
able to fulfil those duties owing to her pain and fatigue. In the late summer
of 2013, the store manager took the plaintiff aside to remind her of her
responsibilities and to emphasize the necessity of the plaintiff being
available to work the days and hours required of her. The evidence at trial
demonstrated that the plaintiff’s position was in jeopardy due to her
injury-imposed limitations.

[15]        
The plaintiff resigned from her job in late September 2013. This was
approximately a week ahead of the trial of her suit against the defendant.

[16]        
The plaintiff is not as socially active as she was before the accident.
Her pain prevents her from dancing at nightclubs, and her tolerance for outdoor
activities is limited. The plaintiff has developed a romantic relationship with
a young man but there are problems. He is very outdoor-oriented, but she cannot
join him as he rides his quad bike along country trails or his snowmobile in
the mountains. He likes to camp and go fishing; she cannot sleep on a camp bed
nor can she sit for hours in a fishing boat. I have no difficulty accepting the
plaintiff’s evidence that sexual intercourse is painful for her.

[17]        
The plaintiff’s hips and sacrum have caused her pain and have limited
her function since the accident. The medical evidence at trial established that
the plaintiff suffers from chronic pain owing to those injuries. Her chronic
pain may be ameliorated somewhat by conservative treatment like exercise or by
more invasive treatment like injections into her hip joints of synovial fluid
or cortisone. These treatments will not, however, cure her of the joint
dysfunction that she has now and will in the future experience consequent to
her injuries.

[18]        
In the past year, the plaintiff’s hip and low back pain have increased.
Her physicians do not view this as a surprise – her injuries do put her at
increased risk of post traumatic osteoarthritis.

[19]        
The plaintiff will almost certainly require hip replacement surgery on
her right hip by the time she reaches her mid-40s. She will most likely require
replacement of her left hip at a somewhat later date. The plaintiff will most
likely require at least one additional bilateral hip replacement, and possibly
a third one as well. With each surgery, the prognosis lessens for full recovery
and return to full function.

[20]        
The plaintiff’s sacrum injury will continue to plague her with pain and
discomfort. As with the plaintiff’s hips, cortisone and synovial fluid
replacement injections may mitigate her low back symptoms, but they will never
be cured.

[21]        
Presently, the plaintiff’s injuries, particular her hip and sacrum
injuries, interfere with her ability to be on her feet for an extended period
of time. She cannot work a full eight-hour shift on the sales floor of a
clothing shop. The plaintiff has greater tolerance for sitting but, again,
owing to pain in her hips and lower back, she must frequently shift about in
her seat and stand up to stretch. Her tolerance for uninterrupted sitting is
one to two hours.

[22]        
The plaintiff has become depressed since the accident. Her depression
stems from a combination of her constant pain; worry about what the future
holds for her in terms of career, marriage, and child rearing; and the
financial stress from being out of the work force. The plaintiff is also an
anxious driver and passenger in a vehicle. She is hyper vigilant and worries
about being in another collision. She can, however, drive her car within the
city. Long car trips are beyond her capacity as a driver. To travel from
Kelowna to Vancouver, for example, she relies on another person to do driving.

[23]        
Beginning in late 2010 and on a reasonably continuous basis since then,
the plaintiff’s family doctor, her rehabilitation worker, and the experts to
whom she has been referred to prepare her case for trial have recommended that
she undertake psychological counseling. In 2010, the plaintiff’s rehabilitation
worker actually arranged two appointments for the plaintiff to see a psychologist
for therapy, but the plaintiff did not attend those sessions. At trial, the
plaintiff testified that she is a private person and that until recently, she
has preferred to rely on her mother for counselling and support. The
plaintiff’s mother confirmed that this was so. The neuropsychologist and the
psychologist who examined the plaintiff for trial both testified that
counseling would be beneficial for the plaintiff, but that sessions would not
be valuable to the plaintiff until she herself felt ready to accept help. At
trial, the plaintiff testified that she now understands that she does need to
see a therapist to help her deal with her emotional upset.

[24]        
The plaintiff does not have a traumatic brain injury. Her cognition is
nonetheless somewhat impaired. The neuropsychologist who assessed the plaintiff
concluded that her cognitive efficiency has been depressed by a combination of
her pain and emotional upset.

[25]        
The plaintiff’s functional capacity was formally assessed in the summer
of 2013. The occupational therapist who performed that testing observed that
the plaintiff’s complaints of pain were somewhat inconsistent with observed
indicia of pain. She did, however, exert an appropriate level of effort during
the testing procedures, indicating that she had not tried to skew the test
results in her favour. The occupational therapist opined that the plaintiff’s
injuries render her unsuitable for an occupation requiring her to be on her
feet for prolonged periods. She is suitable for sedentary work, but she
requires frequent breaks to get up and move around. The vocational consultant
felt that she will do best in a supportive environment that can be adapted to
her needs.

[26]        
The plaintiff has advised others that she would like to become a youth
or addictions counselor. That would require some years of study at a college or
university. The plaintiff’s vocational consultant opined that she has the
intellectual capacity to complete college courses leading to a diploma but that
it would, for reasons unrelated to the accident, be difficult for her to
complete a university degree. In order to enroll in college, the plaintiff
would need to complete her Grade 12 education by either taking courses at a
community college or by completing the Dogwood Diploma program. The vocational
consultant recommended against her trying to work at the same time as attending
courses.

[27]        
The plaintiff’s economist testified that if the plaintiff’s injuries
reduce her ability to fully participate in the labour force then, in addition
to simply earning less money because she works less, she is unlikely to receive
pay rises on the same schedule and to the same degree as other more fully
engaged workers. That is because pay rises tend to reward experience – the more
experience the higher the pay. The economist testified that if the plaintiff is
not able to work full-time and she has to take time off work to recover from
surgeries, then her opportunity to reap the rewards of work experience will be
lessened.

[28]        
Based upon her current level of symptoms, the plaintiff testified that
working three to four hours per day, four to five days per week would leave her
with some energy to enjoy her life outside of work. She testified that working full-time
as she did at the clothing store sapped her energy to such a degree that she is
unable to participate in recreation or social activities.

The Parties’ Positions

Agreed Damages

[29]        
The parties have agreed that the plaintiff’s past loss of opportunity to
earn income should be valued at $32,000; her claim for special damages at
$2,367 and an in-trust claim for her mother’s care be set at $16,500.

The Plaintiff

[30]        
In addition to the agreed damages, the plaintiff asserts that she should
receive an award for non-pecuniary damages of $150,000. She says that in the
future, her injuries will limit her to part-time sedentary work and that she
should receive damages for reduction of earning capacity of $300,000. She also
seeks an award for cost of future care of $185,000 and, finally, a management
fee of $25,000.

The Defendant

[31]        
The defendant maintains that the plaintiff has over-stated the level of
her pain and the severity of her disability. The defendant says that the
plaintiff’s complaints are exaggerated, that they do not represent her actual
level of activity and ability, and that there is therefore reason to doubt her
credibility. The defendant points out that the plaintiff’s headaches, neck and
shoulder pains, and the pains she has in her knees and ankles are all expected
to resolve over time. The defendant goes on to say that hip replacement, when
it occurs, will markedly reduce the plaintiff’s symptoms.

[32]        
Further, the defendant maintains that the plaintiff has failed to take
two steps to mitigate her loss. The first step is to undertake psychological
counseling as recommended by her rehabilitation worker, by her family doctor,
by her physiatrist, and by the psychologist and neuropsychologist who examined
her. The second step is by failing to take injection therapy, which her
physiatrist says will temporarily reduce the discomfort she feels in her hips
and sacrum. The defendant argues that the plaintiff’s claim for non-pecuniary
loss should be reduced by 30 percent to account for her failure to mitigate her
loss.

[33]        
Turning to the plaintiff’s claim for reduction of earning capacity, the
defendant says that accident or no, the plaintiff was bound to become a
sedentary office worker in any event and that because her physiatrist has said
that despite her injuries she can engage in a full-time sedentary occupation,
she will therefore not suffer a significant loss of future income. That said,
the defendant acknowledges that the plaintiff is at risk for hip replacement
surgeries in the future and is prepared to pay two times the annual salary of a
medical office worker – $66,000 – as compensation for work interruptions due to
those surgeries.

[34]        
The defendant rejects the concept that the plaintiff needs or will use
the various treatment modalities recommended for her by her physiatrist, by the
two psychologists, and by the vocational therapist. The defendant says that an
award of $13,300 would fully compensate the plaintiff for the cost of seasonal
cleaning, post‑surgical care, medications, and gym and pool access.

The Law

[35]        
Non-pecuniary damages are not to be assessed on the “shopping list”
model. The tariff approach to assessing general damages was rejected by the
Supreme Court of Canada in Lindal v. Lindal, [1981] 2 S.C.R. 629. There,
the court said:

Thus the amount
of an award for non-pecuniary damage 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 therefore will not
follow that in considering what part of the maximum should be awarded the
gravity of the injury alone will be determinative. An appreciation of the
individual’s loss is the key and the "need for solace will not necessarily
correlate with the seriousness of the injury" (Cooper-Stephenson and
Saunders, Personal Injury Damages in Canada (1981), at p. 373). In dealing
with an award of this nature it will be impossible to develop a
"tariff". An award will vary in each case "to meet the specific
circumstances of the individual case" (Thornton at p. 284 of S.C.R.).

[36]        
In Stapley v. Hejslet, 2006 BCCA 34, Kirkpatrick J.A. cited a
non-exhaustive list of the factors that commonly influence an award of
non-pecuniary damages. That list is:

(a)        age of
the plaintiff;

(b)        nature
of the injury;

(c)        severity
and duration of pain;

(d)        disability;

(e)        emotional
suffering; and

(f)         loss
or impairment of life;

(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

[37]        
A plaintiff has a duty to act reasonably in mitigating her loss. It is,
however, for the defendant to demonstrate on the balance of probability that
the plaintiff has failed in that duty. When the failure to mitigate is alleged
to have been borne of not having followed a given course of treatment, the
defendant must show that the treatment was medically directed and that, had it
been followed, the plaintiff would have recovered further or faster: Janiak
v. Ippolito, [1985] 1 S.C.R. 146 at 163-66.

[38]        
The principles that guide the court on an award for reduction of earning
capacity have their genesis in Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.). Those principles have been applied in these courts for many years.
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.

[39]        
A caveat has been added to those general principles and it is this: it
is not every foreclosed endeavor that merits an award. The plaintiff must show
that her injuries have diminished her ability to participate in a realistic
alternative occupation: Perren v. Lalari, 2010 BCCA 140. So, for
example, a slightly built 60-year-old female could not found a claim for
reduction of earning capacity on the proposition that her injury will bar her
from a career as a defensive lineman in the Canadian Football League.

[40]        
The court has discretion in the approach it takes when it quantifies a
claim for reduction of earning capacity. In some cases, it may be appropriate
to simply compare pre- and post-injury income streams. That has come to be
known as the calculation method. In other cases where, for example, the pre-injury
income stream cannot be taken to be the best evidence of the claimant’s future
earning potential, it may be appropriate for the court to make an assessment of
the loss. Both approaches are equally valid; whether the court employs one or
the other will depend upon the circumstances of the claim: Pallos v. Insurance
Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.).

[41]        
A claim for future cost of care must be based upon evidence that the
care items are medically justified: Aberdeen v. Zanatta, 2008 BCCA 420.

Discussion

Non-pecuniary Loss

[42]        
Prior to the accident, the plaintiff was a happy, outgoing, ambitious
young woman. She had, and still has, a strong work ethic. She started full-time
employment shortly after leaving high school. She was able to engage in the
recreational activities she enjoyed without restriction. Those activities
included snowboarding, hiking, and running.

[43]        
The plaintiff was hospitalized for two weeks after the accident. While
there, she underwent surgery to repair her broken right hip. She was released
into her mother’s care. She was readmitted to the hospital a couple of weeks
later and kept there for another week. The plaintiff was bed and wheelchair ridden
for three to four months.

[44]        
The plaintiff’s recovery has been slow and is not complete. She was
initially optimistic for a full recovery, but as the years have passed and her
symptoms have stabilized, she has come to realize that she will not ever get
completely better. This in itself has caused the plaintiff to suffer from depression.
Adding to the effect of her gloomy prognosis are her legitimate and reasonable
worries concerning her ability to support herself financially, to have and keep
a romantic relationship with any partner who enjoys physical and outdoor
activities and with whom sexual intercourse is painful, and, not least, worry
over her ability to carry, bear, and raise children.

[45]        
The plaintiff’s headaches, neck and shoulder pain, and the pain in her
lower legs will likely eventually resolve. Her right and left hip injuries and
her fractured sacrum will not ever be symptom free. She will always have pain
in these areas. The plaintiff will certainly have multiple right hip
replacement surgeries and will, more likely than not, have to have multiple
left hip replacements as well. These surgeries will likely be done one at a
time. The plaintiff’s future will, therefore, involve four to six major
operations spread over a number of years.

[46]        
The plaintiff cannot now enjoy outdoor and physical activities as she
once did. Her stamina is much reduced and her tolerance for walking, running,
and sitting is limited. The symptoms in her hips will worsen with time.

[47]        
I accept the defence’s submission that the plaintiff tends to overstate
her symptoms. She, for example, rates her pain after being on her feet for a
shift of work as an “8 or 9”. Conventional wisdom suggests that pain at that
end of the scale would have the plaintiff weeping and curled up in a ball in a
dark room. That is plainly not the case for her. Her pain is not that severe.
It is, however, the worst pain that she has ever experienced and it has lasted
longer than she ever imagined that it would. In my view, the plaintiff’s rating
of her pain simply reflects her perception of how her pain affects her life. It
is understandable that, not having anything to compare it with, she rates her
pain higher than another person might. In the result, I find that the
plaintiff’s self-report of her symptoms is somewhat exaggerated but that her
pain is nevertheless both real and significant. I also find that her injuries
limit her function in the way and to the degree she described at trial.

[48]        
Given the plaintiff’s youth, the impact that these injuries have had on
her quality of life, and the fact that she will go on to require multiple major
operations in the future, I am persuaded that the proper award for
non-pecuniary damages in her case is $150,000.

Mitigation

[49]        
The defendant argues that the plaintiff would be better off now had she
undertaken psychological counseling ahead of the trial. The difficulty with
that proposition is the fact that psychological therapy is unlikely to help
unless the patient is willing to accept that help. The plaintiff has a private
personality, and until matters became intolerable for her, she preferred to
rely on her family for emotional support. It was not until mid-2013 when she
found that she simply could not carry on working in clothing sales that she
realized that she must turn to outside help for her emotional difficulties. I
find that had the plaintiff actually attended a counselor in 2011 as the
defendant urges, she would not have been ready to accept help and the effort
would not have benefited her.

[50]        
The defendant also argues that the plaintiff has failed to mitigate her
loss by failing to undertake the injection therapies that her physiatrist says
would temporarily reduce the symptoms in her hips and sacrum. There is a fatal
flaw in this argument as well, and it is this: the physiatrist did not
recommend that the plaintiff actually undertake those therapies ahead of the
trial. The most that can be said about the physiatrist’s view of the matter is
that should the plaintiff’s symptoms increase to such a point that medical
intervention is necessary, then the available treatment modalities include
injection therapy. There was no evidence that the plaintiff received medical
advice that she ought to have submitted to injection therapy before the trial.
In the absence of such advice, the defendant’s position cannot prevail.

[51]        
For these reasons, I find that I cannot accede to the defendant’s submissions
on mitigation.

Reduction of Earning Capacity

[52]        
To repeat: the defence’s approach to this head of damages is to assert
that the plaintiff was going to be a sedentary office worker in any event and
that because the evidence shows that she is likely to now follow that career
path, she cannot be said to have suffered a loss. The defence asserts this
proposition notwithstanding the uncontroverted evidence that the plaintiff’s
hip and lower back injuries markedly limit her ability to do the kind of work
that she actually did, and did well, before her injury.

[53]        
It is disappointing that in this day and age, nearly 30 years after Brown
v. Golaiy, a defendant would cleave to such a wrong-headed approach to a
claim for reduction of earning capacity. In so saying, I do not levy criticism
at defence counsel Mr. Poon. He, in my view, presented his client’s
position as best as any good counsel could.

[54]        
The facts of this case are that the plaintiff’s injuries have rendered
her unsuitable for work that requires her to be on her feet for a substantial
portion of the day. She cannot do a job that requires her to ascend and descend
stairs or climb ladders. Before the accident, the plaintiff was very successful
in her employment as a clothing sales clerk. She worked full-time in that
occupation and earned promotions from part-time to full-time, to full-time
junior manager. At best, she is now limited doing that kind of work on a
part-time basis and, critically, only with the support of a sympathetic
employer.

[55]        
Further, if she does eventually work in an office, she will be less
competitive there than would otherwise have been the case. That is because she
will still be plagued by pain in her hips and lower back. She will require
special accommodation and more frequent breaks to shift, stand, and stretch.
Her attendance record will likely be punctuated by absences due to pain and
fatigue.

[56]        
The plaintiff was a young person when she was injured. It is possible
that she would have enjoyed sufficient success in retail sales and management
that she would not have gone on to work in an office environment. It is equally
possible that she would have taken office administration courses while still
working full or part‑time and would have gone on to find employment in an
office. The plaintiff’s history in the labour force was too brief to support a
confident prediction of the direction her future would take. One cannot,
therefore, say that the plaintiff’s loss may be calculated by measuring the
delta between pre- and post-injury income streams. For that reason, I find that
assessment is the appropriate methodology for this case.

[57]        
The plaintiff has made a genuine effort to engage in work. She has tried
and failed to work as housecleaner. She has tried and failed to work full-time
in the same type of sales job she did before the accident. If the plaintiff
does not pursue sedentary work but continues to work in sales or some other
occupation that requires her to be on her feet for the majority of the day, I
find that her stated preference for part-time work is reasonable given her
symptoms and limitations. If she works part-time in a sales position, she will
likely have more energy to look after her household and to participate in
social activities and such recreational pursuits as she can still do. Working part-time
will allow her to achieve some reasonable degree of balance between earning a
living and having a life to live.

[58]        
On the other hand, I find that as a result of her injuries the
plaintiff’s best course of action will be to earn a Grade 12 diploma or its
equivalent and then to enroll in a course of post-secondary that will qualify
her for employment in an office environment. Even in an office environment, the
plaintiff will be a generally less desirable employee than her able-bodied
colleagues. In order to work full-time, the plaintiff will need a sympathetic
employer who is willing to accommodate her limitations.

[59]        
In either case, the plaintiff’s participation in the labour force will
be interrupted by serial hip replacement surgeries.

[60]        
For these reasons, I have concluded that the proper award for reduction
of the plaintiff’s earning capacity is $250,000.

Cost of Future Care

[61]        
My findings concerning future care are all predicated upon my assumption
that the plaintiff will attend psychological counseling in the very near future,
and that the counseling will ameliorate her depression and anxiety, and that
she will learn and employ skills to better manage per response to pain. I also
assume that the counseling will not eliminate her emotional upset nor will it
make her pain go away.

[62]        
My findings on future care are also based on the assumption that the
plaintiff will, for the most part, be employed in a relatively sedentary
occupation. She will therefore be less taxed by work than was the case between
the accident and trial. In the result, she will have more resources to look
after her own needs than she did during the several years leading up to the
trial. Put simply: I will assume that post‑trial the plaintiff’s capacity
for self-care will be greater because she will be working in a less physically
demanding environment, and that she will be better equipped psychologically to
deal with life than has been the case between the accident and the trial.

[63]        
The plaintiff seeks an award for the following care items and services.

Rehabilitation Services

[64]        
In this category, the plaintiff seeks awards for the cost of: 12 massage
or physiotherapy treatments per year for her lifetime, an exercise therapist,
psychological counseling, occupational therapy, vocational rehabilitation, and
sexual health therapy.

[65]        
The plaintiff testified that in the past, she has attended two
physiotherapy sessions but found that they did her no good. She said that she
had had some massage treatments and that they gave her some temporary relief.
She would like to have more massage sessions but that she cannot afford their
cost. The plaintiff’s physiatrist recommended that the plaintiff have the
benefit of physical therapy of her choice. Clearly, she prefers massage. I
would award an amount sufficient to fund a year of monthly massage treatments
followed by three to four sessions annually to the plaintiff’s age 60. I have
selected age 60 as the cut-off point because, by then, the plaintiff will have
undergone probably two and as many as four hip replacement surgeries, and she
will have probably adopted a relatively undemanding lifestyle. I predict
that her need for massage therapy will likely decrease to nil by sometime in
her mid-50s to mid-60s.

[66]        
At $65 per session, the first year of 12 massage treatments would cost
$780. The annual cost of four treatments going forward would be $260. The
economist’s tables show that the cumulative present value for an annual cost of
$1,000 to the plaintiff’s age 60 is $20,693. Using those data, I find that the
present value of the cost of future massage therapy is $20,693 * ($260/$1,000)
= $5,380.

[67]        
The occupational therapist recommended that the plaintiff take 10 hours
of exercise instruction immediately and that she have 20 follow-up sessions to
be delivered at various times throughout the balance of her life. The follow up
sessions would monitor her progress and modify her exercise regime to address
changes in her symptoms. The sessions are predicted to cost $125 per hour.
Given the physiatrist’s prediction that the plaintiff’s hip and low back
symptoms will inevitably worsen over time and given the medical opinion that
targeted exercise would likely ameliorate the plaintiff’s degeneration to some
degree, it is reasonable that the plaintiff should have access to professional
advice and direction. That advice would likely maximize the benefits of
exercise. I would allow $1,250 for immediate need and a further $1,500 for
future need up to the plaintiff’s age 60.

[68]        
The medical and psychological evidence at trial unanimously recommended
that the plaintiff undergo psychological counseling. Psychological counseling
is not covered by the Province’s medical services plan. I find that the
plaintiff’s personality is such that she will attend psychological therapy only
when driven to it by dire hardship. The plaintiff is in such a state now. I
predict that when she has sedentary work, her need for and willingness to
participate in psychological counseling will wane. For that reason, I would
award the full cost of an initial series of 10 therapy sessions at $125 per
hour, but none for ongoing treatment.

[69]        
The plaintiff’s occupational therapist recommended 16 hours of
occupational therapy at $90 per hour to address workplace and ergonomic
assessment, to instruct her with respect to joint protection, to provide work
simplification strategies, and to recommend home equipment needs. The
plaintiff’s need for this advice is, in my view, highly speculative. In any
event, if we assume that she will be working in a sedentary position, the
plaintiff’s need for this kind of intersession may be low to nil. Against the
possibility that the plaintiff finds herself in a more demanding that expected
work place, I would make a modest award under this head of $500.

[70]        
The plaintiff’s occupational therapist also recommended that the
plaintiff have the benefit of the services of vocational rehabilitation. She
recommended 30 hours at $100 per hour. These services would assist the
plaintiff in selecting and finding employment in a suitable career. The
difficulty with that recommendation is that it would largely replicate the work
that the plaintiff’s vocational rehabilitation expert has done in preparation
for this trial. That work focused on the kinds of employment that suit the
plaintiff’s aptitudes and physical capacities. Further, the plaintiff has
demonstrated that she is quite capable of successfully applying for employment.
She appears to need no help in that regard. I would make no award for this item
of care.

[71]        
The plaintiff should have the benefit of sexual health rehabilitation
services. Those services are provided under the Medical Services Plan to
citizens on medical referral. No award need be made for this item of care.

Medications and Medical Equipment

[72]        
The plaintiff testified that she prefers to use natural remedies to
address her pain. She does not use prescription or over-the-counter medications
except when absolutely necessary. When she does take medication she minimizes
her use. The plaintiff is currently taking an anti-depressant medication. For
reasons that the occupational therapist did not give, she built the cost of
anti-depressant medication into the plaintiff‘s life-time need. This is odd
because the occupational therapist also recommended psychological counseling
which would, presumably, be aimed at reducing or eliminating the plaintiff’s
depression.

[73]        
Under this head of the claim, I would allow an annual cost of
medications of $200 going forward to the plaintiff’s age 60. Employing the same
formula as for massage therapy, I find that the present value of the
plaintiff’s need for medications to be $20,693 * ($200/$1,000) = $4,138.

Home Support

[74]        
The plaintiff’s occupational therapist recommended that the plaintiff
receive four hours of home cleaning per month for so long as she lives in the
basement suite that she currently occupies. The therapist recommended that
those services increase to two to four hours per week should the plaintiff move
into a larger condominium, townhome, or single family dwelling. In addition,
the therapist recommended an additional eight hours of service for seasonal
cleaning. Finally, should the plaintiff move into a place with a yard, the
therapist recommended that the plaintiff also have 16 hours of yard and lawn
maintenance service per year. All of these services would be at $25 per hour.

[75]        
The plaintiff testified that she is able to do almost all of her
housework albeit with pain and that she has to pace herself. The tasks she
cannot do are tub and toilet cleaning. I find that when the plaintiff has
settled into a sedentary occupation, she will have more energy and stamina to
do her regular housekeeping chores. Tasks that require kneeling, squatting, and
climbing ladders will, however, always present a significant difficulty for
her.

[76]        
Whether the plaintiff will ever move into accommodation with a yard is,
of course, highly speculative.

[77]        
Under this head of claim, I would allow four hours of housekeeping and
yard maintenance per month throughout the plaintiff’s life to her age 70. The
economist’s future loss table shows that the present value of an annual cost of
$480 to the plaintiff’s age 70 is ($480/$1,000) * $22,852 = $10,968.

Adaptive Equipment

[78]        
The plaintiff says that she should have an award to cover the cost of
access to a gym and a pool and an ergonomic seat.

[79]        
Given the modest price of gym and pool access ($391 and $294 annually
respectively), given the fact that the plaintiff has not availed herself of
either of those facilities, and given that the plaintiff gave no evidence that
she would likely use those facilities in the future, I am not inclined to find
that the plaintiff would actually go to a gym or a pool on a regular basis. The
exercises that her trainer will likely give her may be done at her home as well
as at a gym. For those reasons, I would make no award under this head of claim.

[80]        
The plaintiff has not shown that an ergonomically designed chair would
actually address her specific needs. Absent that evidence, it would be unsafe to
make an award for that item.

Post-surgery Support

[81]        
The plaintiff will likely have between four and six hip replacement
surgeries throughout her life. She will require physiotherapy, home support,
adaptive equipment including but not limited to a wheelchair and a walker, and
she may not be able to drive for some period of time after her surgery, thus requiring
transportation assistance. Using the figures supplied by the occupational
therapist for these items of future care, I would assess the total care costs
for the plaintiff after each surgery at $3,500. The timing of those surgeries
is uncertain. According to the physiatrist, the first hip replacement operation
is likely to involve her right hip and is likely to be needed by the
plaintiff’s mid-40s. The surgeries will be staggered right and then left as the
replacements become necessary. I would award a present value lump sum of $7,500
under this head of claim.

Cost of Care Sub-Total

Conclusion

[82]        
The plaintiff shall have judgment as follows:

Costs

[83]        
At any time within 30 days after these reasons are released the parties
may make an application concerning costs. Absent such an application, the
plaintiff shall have her costs on Scale B.

“P.J.
Rogers, J.”

The
Honourable Mr. Justice Rogers