IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131231

Docket: M121653

Registry:
Vancouver

Between:

Lisa Johal

Plaintiff

And

Constance Meyede
and John Meyede

Defendants

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff, Lisa Johal, is a thirty-year-old woman who appears to be
ideally suited to the hospitality industry.  She has a warm and engaging
personality together with a drive to succeed in her chosen career.

[2]            
On December 6, 2010, the plaintiff’s car was rear-ended by a car
driven by the defendant, John Meyede, and owned by the defendant, Constance
Meyede.  The defendants have admitted liability.  This incident is hereinafter
referred to as the “accident”.

[3]            
As a result of the accident, the plaintiff suffered soft tissue injuries
mainly to her neck, right shoulder and right arm, resulting in significant pain
and headaches.  For the most part the injuries and their sequelae have
not resolved and it is highly probable that the plaintiff will suffer pain and
headaches for the rest of her life.

[4]            
At trial, the parties asked to speak to the “gross-up” for taxes after
the Court has determined the future pecuniary heads of damages.  The parties
are at liberty to apply.

[5]            
For the reasons that follow, subject to argument on “gross-up”, the
Court will award the plaintiff the following damages:

(a)      past wage loss (net)                                                  $1,300

(b)      non-pecuniary                                                         $85,000

(c)      loss of future income
capacity                                $611,000

(d)      cost of future care                                                   $90,000

(e)      special damages     $8,270

Total: $795,570

[6]            
Unless there are matters of which the Court is not aware, the plaintiff
will be entitled to her costs and disbursements in accordance with
Appendix B, Scale B of the Supreme Court Civil Rules, B.C.
Reg. 168/2009.

II.              
Plaintiff’s background

[7]            
The plaintiff was born and raised in Delta, B.C.  In 2001, she graduated
from high school.  After high school, she worked at an upscale restaurant chain. 
She received quick promotions.  In 2002, while working approximately
30 hours per week, she attended a hotel and restaurant management course
at Douglas College and in 2004, she received her diploma.

[8]            
In 2007, the plaintiff became an employee of her current employer,
working at a hotel in Vancouver.  It is apparent that her employer recognized
the plaintiff’s attributes and she again received a series of quick promotions
to become an assistant front office manager at the Vancouver hotel.

[9]            
In 2011, in order to further her career, the plaintiff sought a lateral transfer
to one of her employer’s hotels in Ottawa.  The Ottawa hotel was new to her
employer’s hotel chain and provided more opportunity for career advancement.  She
started as an assistant front office manager and is currently the front office
manager.

[10]        
Prior to the accident, the plaintiff aspired to become the general
manager of one of her employer’s hotels.  She still aspires to do so, but
undoubtedly, as described below, the path is now more difficult and less
certain.

[11]        
The plaintiff wishes to have children as well as a successful professional
life.  In this she has an example in the general manager at her current hotel
who has been able to raise her children while satisfying the demands of her
career.

[12]        
The plaintiff’s employer has a team culture where employees “pitch in”
to ensure guest satisfaction.  Even the general manager will carry luggage or
strip and make a bed when the need arises.  The employer’s culture is that its
leaders lead by example.

[13]        
In order to progress further to operations manager, and eventually
general manager, the plaintiff will likely need to serve as the director of
housekeeping.  This role is more demanding physically than the front office
manager position.  For example, when the hotel is busy and a quick turnover is
required, it is likely that the director of housekeeping will be stripping and
making beds just like the others on his or her team.  As noted, this is the
employer’s culture.

[14]        
At the time of the accident, the plaintiff was earning approximately
$46,000 per annum.  She now earns $58,000 per annum and will soon earn $62,000
per annum.

[15]        
A general manager earns approximately $120,000 to $140,000 per annum
depending on the city and the size of the hotel.

[16]        
Prior to the accident, the plaintiff participated in many sports,
including baseball, volleyball, basketball and snowboarding, and she had a
regular and active fitness training regimen.

[17]        
When the plaintiff was 11 or 12 years old, she suffered an injury to her
right rotator cuff which she believes has fully resolved.  (Other than a
passing reference, the defendants’ medical experts did not address this old
injury.)

[18]        
In 2005, the plaintiff was involved in a minor motor vehicle accident
and suffered soft tissue injuries to her neck, back and right shoulder.  With
physiotherapy and rehabilitation, the plaintiff was fully recovered within a year.

[19]        
In the year before the accident, the plaintiff had some intermittent and
minor pain in her neck and right shoulder, and from time to time experienced a “pins
and needles” sensation in her right arm and hand.  She had two physiotherapy
sessions for this, the first a week previous to and the second the morning of
the accident.  The pre-existing condition did not affect her enjoyment of
sports or work, or otherwise affect her day-to-day activities in any significant
manner.

III.            
plaintiff’s Injuries

[20]        
The plaintiff testified as to her current symptoms which, in legal
argument, her counsel summarized:

(a)     Chronic
pain which is soft tissue in nature to the neck, upper back, and shoulder (all
right side);

(b)     Aggravation
of pre-existing right-sided neck, shoulder, and arm symptoms;

(c)     Right
thoracic outlet syndrome, or at least symptoms consistent with such a clinical
diagnosis including pain down the arm with numbness and tingling, hot and cold
sensations, and a feeling of heaviness in the arm;

(d)     Cervicogenic
headaches;

(e)     Impaired
sleep; and

(f)      Reactive mood disturbance with
some features of driving anxiety, irritability, anger, and frustration.

IV.           
Defendants’ Pleadings

[21]        
The defendants pleaded that the accident did not cause the plaintiff’s
injuries and that the plaintiff did not take any steps to mitigate any damage
or loss.  In this regard, the defendants’ response reads:

4.      Any
alleged injury, loss, damage or expense was not caused by the collision but is
attributable to previous and/or subsequent accidents, injuries or conditions
involving or affecting the Plaintiff or is attributable to congenital defects
and/or pre-existing injuries or conditions and, further, the alleged collision
did not aggravate any pre-existing injury or condition.

5.      The
Plaintiff has failed or refused to take any or any reasonable steps to mitigate
any damage or loss, including but not limited to, the following particulars:

(a)     failing
to follow the advice of medical advisors;

(b)     failing
to take proper steps to find any or any alternative employment; and

(c)     failing to assist in
rehabilitation.

V.             
plaintiff’s Burden

[22]        
The plaintiff’s burden is to prove her injuries on a balance of
probabilities: F.H. v. McDougall, 2008 SCC 53.

[23]        
Where the alleged injuries are continuing soft tissue injuries, the
Court must be particularly careful in making its findings.  In this regard, Chief
Justice McEachern (as he then was) in Butler v. Blaylock Estate, [1981]
B.C.J. No. 31 (S.C.) stated:

[18]      I am not stating any
new principle when I say that the court should be exceedingly careful when
there is little or no objective evidence of continuing injury and these
complaints of pain persist for long periods extending beyond the normal or
usual recovery.

[19]      An injured person is
entitled to be fully and properly compensated for any injury or disability
caused by a wrongdoer.  But no one can expect his fellow citizen or citizens to
compensate him in the absence of convincing evidence –which could be just his
own evidence if the surrounding circumstances are consistent – that his
complaints of pain are true reflections of a continuing injury.

[24]        
A plaintiff does not need to show objective evidence of continuing
injury in order to recover damages: Butler v. Blaylock Estate, [1983]
B.C.J. No. 1490 (C.A.), at paras. 12-13.

[25]        
In the case at bar, the crux of the case is the credibility of the
plaintiff’s testimony as subjected to and tested by the defendants’
cross-examination.  As observed over a century ago by Professor J.H. Wigmore in
A Treatise on the System of Evidence in Trials at Common Law, Canadian
ed. (Toronto: Canada Law Book, 1905) vol. 2 at 1697, cross-examination is
a unique tool for the discovery of truth and is a key attribute of our envied common
law system.

For two centuries past, the policy of the Anglo-American
system of evidence has been to regard the necessity of testing by
cross-examination as a vital feature of the law.  The belief that no safeguard
for testing the value of human statements is comparable to that furnished by
cross-examination, and the conviction that no statement (unless by special
exception) should be used as testimony until it has been probed and sublimated
by that test, has found increasing strength in lengthening experience.

Not even the abuses, the
mishandlings, and the puerilities which are so often found associated with
cross-examination have availed to nullify its value.  It may be that in more
than one sense it takes the place in our system which torture occupied in the
mediaeval system of the civilians.  Nevertheless, it is beyond any doubt the
greatest legal engine ever invented for the discovery of truth.  However
difficult it may be for the layman, the scientist, or the foreign jurist to
appreciate this its wonderful power, there has probably never been a moment’s
doubt upon this point in the mind of a lawyer of experience. “You can do
anything,” said Wendell Phillips, “with a bayonet – except sit upon it”.  A
lawyer can do anything with a cross-examination – if he is skillful enough not
to impale his own cause upon it.  He may, it is true, do more than he ought to
do; he may “make the worse appear the better reason, to perplex and dash
maturest counsels” – may make the truth appear like falsehood.  But this abuse
of its power is able to be remedied by proper control.  The fact of this unique
and irresistible power remains, and is the reason for our faith in its merits.  If
we omit political considerations of broader range, then cross-examination, not
trial by jury, is the great and permanent contribution of the Anglo-American
system of law to improved methods of trial procedure.

[26]        
On behalf of the defendants, Mr. Spiro undertook a probing and wide-ranging
professional cross-examination of the plaintiff, including reviewing various
statements, sometimes optimistic, which the plaintiff made to one or more
health professionals.  To the extent the cross-examination served to discredit
the plaintiff’s testimony, Mr. Elliott’s re-examination rehabilitated her
testimony by placing the plaintiff’s sometimes hopeful statements in context.

[27]        
I have no hesitation in accepting the plaintiff’s description of her
injuries.  She testified in an understated and forthright manner.  During her
testimony, I could also observe her repositioning herself without theatre
or thought.  It is apparent that prolonged sitting is uncomfortable for her and
that she will subconsciously adjust herself to address this discomfort.

[28]        
The plaintiff’s pre-accident symptoms were a bother but did not affect
her work, day to day activities, or sports.  As she told Dr. R. McGraw, an
orthopaedic surgeon called by the defence, there was “big-time aggravation” of
her pre-accident symptoms.

[29]        
The plaintiff’s description of her pre- and post-accident symptoms was
corroborated by a variety of witnesses, including various co-workers, her
mother and an ex-boyfriend with whom the plaintiff had lived for two years, ending
in the October before the accident.

[30]        
The plaintiff’s chronic pain has resulted in her reconfiguring her work
space so that she can operate her computer using her mouse left handed, despite
the fact she is right hand dominant.

[31]        
The medical evidence also provides some objective evidence of the
plaintiff’s injuries, including a decreased pulse on certain arm-torso
maneuvers which reflect impingement, and spasmodic muscle trigger points that could
be felt.

[32]        
As is often the case, different medical experts from different fields of
expertise have different and further recommendations as to what may be done to
diagnose precisely the cause of the symptoms and different approaches to
address the symptoms.  Continuing soft tissue injuries can be frustrating for
all involved.  That said, there is a degree of commonality as to prognosis and
possible approaches to manage the plaintiff’s symptoms.

[33]        
The plaintiff has followed various recommendations to attempt to address
her condition and symptoms.  My impression is that at the outset the plaintiff
expected her symptoms would disappear over time.  She is an optimistic person who
enjoys and is accustomed to achieving her goals.  While still positive, she is
frustrated as she now realizes her symptoms are for the most part chronic.

VI.           
Functional Capacity

[34]        
Ms. L. Craig was qualified, without objection, as a physiotherapist
with a specialty in functional capacity evaluation.  In her report, Ms. Craig’s
key observations and conclusions were:

1.      In
summary, during this Functional Capacity Evaluation Ms. Johal did not meet
the full physical demands of her job as a Front Office Manager (National
Occupational Classification Number 0632).  Completion of tasks essential to her
job results in significantly increased pain over the course of the assessment. 
Ms. Johal is observed to employ breaking and micro-breaking during tasks
such as writing and computer work, completed in a work intensive sitting
posture.  She demonstrates reduced tolerance for lifting, carrying and
pushing/pulling.  With these strength tasks the dysfunctional movement patterns
and muscular weakness of the upper back/shoulder and scapular area becomes
quite visible.  Ms. Johal continues to work at her job but in a modified
capacity.  Unfortunately, her workload, job demands and lack of ability to
consistently pace herself result in increased symptoms over the course of the
day.  She currently tries to employ many modifications such as pacing and break
(although this is not always possible with guest check in volume or staffing
shortages preventing her from doing so as needed), using the mouse with her
left hand rather than her right and avoiding lifting, carrying or pulling
luggage when she can (again only possible if co-workers are able to assist
her).  She reports to having made some ergonomic changes of her own accord such
as operating the mouse with her left and acquiring an adjustable chair.  Even
so, she reports symptom increase during the day and by the end of the work
day.  Based on the findings of this assessment, Ms. Johal’s competitive
employability is reduced.  If she attempts to work at a competitive pace, her
symptoms are increased.  If she employs pacing and breaking, she would not
likely be able to complete all of her tasks as required of her employer.  She
states that she has in the past used holiday time and breaking up her weekends
to allow her to cope at work.  As such, in her attempts to work in her regular
capacity she reports to symptom aggravation which could lead to work absences
at times.

2.      Ms. Johal’s limitations/abilities
are as follows:  Ms. Johal is limited to light with some capacity for
medium strength demand tasks (lifting, carrying, pushing, pulling).  Ms. Johal
is limited for repetitive right upper extremity use at all levels, more
significantly at upper levels.  She shows reduced tolerance to work intensive
sitting, an essential job demand.  She is limited for reaching in stooped
posture and in low level work postures.  She does not tolerate weight bearing
on the right upper extremity in a crawl position.

[35]        
In her testimony, Ms. Craig said the plaintiff would have
difficulty carrying a young child on her right side, lifting a baby from a
crib, picking up a child, and generally reaching in connection with placing or
removing a young child from a car seat.

VII.          
Medical Evidence

[36]        
Dr. Namazi, who was the plaintiff’s family physician before the
plaintiff moved to Ottawa, was qualified without objection to provide expert
evidence on family medicine.  She testified as to the plaintiff’s condition
pre-accident and for the approximately eight months post-accident (prior to the
plaintiff’s move to Ottawa).  Of signal importance, Dr. Namazi’s testimony
corroborated the plaintiff’s description of her pre-accident condition and
symptoms.

[37]        
On October 28, 2010, the plaintiff saw Dr. Namazi as part of a
routine physical examination.  Dr. Namazi described the plaintiff pre-accident
as “better than average, healthy”.  During the visit, she performed several
range of motion tests (manoeuvres) all of which were negative.  Dr. Namazi
formed a “diagnostic impression” or “working theory” of thoracic outlet
syndrome and recommended neck and chest x‑rays, and physiotherapy.

[38]        
Dr. L. Caillier, a physiatrist, saw the plaintiff after the
accident for a medical legal assessment on May 1, 2012 and June 17,
2013.  Dr. Caillier was qualified, without objection, as an expert in
physiatry.  From her July 12, 2013 report, Dr. Caillier’s prognosis
is:

Chronic Pain:

Prognosis: it is my opinion that, given the chronicity of her
neck, upper back and shoulder pain, the likelihood of her becoming pain-free is
poor.

She is likely to have ongoing pain now and beyond the next 12
months.

It is my opinion that she is at risk of worsening of her
symptoms if she were to be involved in a subsequent motor vehicle accident or
sustain further trauma to her neck, shoulder, and upper back region.  Therefore,
she is susceptible and vulnerable to further injury involving these areas.

The goal at this time is improved
management of her symptoms with a lessening of symptomatic provocation with
activities.

Numbness, tingling,
fatigue

Prognosis:  Given the chronicity of these symptoms, the
likelihood of Ms. Johal becoming pain-free as well as sensory symptom-free
is poor.

She is likely to have ongoing symptoms now and beyond the
next 12 months: however, it is my opinion that she has not yet achieved maximal
medical management as of yet, and there is still time for improved management
but, even with benefits from recommendations made, it is my opinion that she
will likely not experience full resolution of her symptoms.

She is also likely more
vulnerable to further injury and aggravation of her right thoracic outlet syndrome,
which may precipitate the need for surgery, and I will defer to my
colleagues in Vascular Surgery to comment on this further.

Headaches

Given the chronicity of her headaches coupled with the
chronicity of her neck pain, the likelihood of her becoming pain-free is poor.

She is likely to have ongoing
headaches now and beyond the next 12 months.

[39]        
During her testimony in examination in chief, Dr. Caillier
confirmed that her graceful phrase “beyond the next 12 months” means “into
the future”.  In cross-examination Dr. Caillier described the plaintiff’s
symptoms (even with the goal of improved management) as “lifelong”.

[40]        
The plaintiff also called Dr. A. Travlos to provide expert medical
testimony.  Without objection, Dr. Travlos was qualified to give expert
testimony with respect to physical medicine and rehabilitation.

[41]        
In his June 18, 2013 report, Dr. Travlos described the cause
of the plaintiff’s symptoms:

It is my opinion that Ms. Johal has the following list
of cause for her symptoms:

1.      Myofascial
pain syndrome of the right side of the neck and shoulder girdle.

2.      Right
shoulder impingement.

3.      Subtle findings of thoracic
outlet impingement.

[42]        
As he also describes in his report, when the plaintiff saw him, he gave
her an injection of Botox:

Ms. Johal has had multiple treatments done without
substantial benefit to her symptoms.  As such, it would be reasonable to
consider at least a trial of botulinum injection to the thoracic outlet to see
if this can improve on her problems.

With her consent and after
explanation of the risks, I went ahead and injected her under
electrophysiologic guidance into the right-sided scalene muscles and pec minor
muscles of the chest.  She tolerated the procedure well.  A total of 100 units
of botulinum toxin was injected on a 1:1 ratio.

[43]        
At best, Botox injections may serve to reduce pain for several months. 
The injections are expensive.  A reasonable estimate of the injection fee and
the Botox is $800 per session.  The plaintiff said her Botox injection provided
some relief for approximately a month and a half.

[44]        
The defendants called Dr. R. McGraw as an expert witness.  Dr. McGraw
was qualified, without objection, to give an expert opinion with respect to
orthopaedic medicine.

[45]        
In his March 14, 2013 report, Dr. McGraw’s diagnoses are:

As a result of the road
traffic accident of December 13, 2010, Ms. Johal sustained the
following injuries:

1.      Cervical
spine – musculoligamentous soft tissue injury not associated with neurological
impairment or fracture.

2.      Right
shoulder:

a)      contusion.

b)      aggravation
of previous possible rotator cuff tendinitis.

c)      unlikely thoracic outlet
syndrome.

[46]        
Like Dr. Caillier and Dr. Travlos, Dr. McGraw recommended
an injection of local anaesthetic into the right shoulder for pain management. 
As Dr. Caillier explained in cross-examination, such an injection may “better
manage what is going on so far as the chronic soft tissue pain”.  As Dr. Caillier
also testified, such injections are painful and are not without some danger. 
(Dr. McGraw believes the risk of infection is negligible with appropriate
sterilization precautions, but the risk is something “we tell the patient”.)

[47]        
The defendants also called Dr. F. Kemble as an expert witness.  He
had been retained to provide a responding medical-legal report.  He was
qualified, without objection, to provide expert evidence with respect to
neurology.  Dr. Kemble concluded his October 22, 2013 report saying:

I do not feel that there is any
indication for any thoracic outlet surgery.  Ultimately, the probability is
that she will be able to work full time although she will probably have minor
difficulty in terms of using her arm and moving her neck.  I am
optimistic, that with the measures outlined by Dr. Travlos and Dr. Caillier,
that the pain will significantly reduce.

[48]        
For two reasons, I have given less weight to Dr. Kemble’s
report and testimony than the other medical experts.  First, he did not meet or
examine the plaintiff.  Second, in cross-examination, Dr. Kemble conceded
that the basis for his report could be incorrect to the extent it was based on
the assumption that the plaintiff’s symptoms would become intermittent.

[49]        
Dr. Caillier’s initial view was that the symptoms might become
intermittent but changed her view after she saw the plaintiff on June 17,
2013, more than a year after her first examination.  In testimony, Dr. Caillier
confirmed her opinion that the plaintiff’s pain would not be intermittent.  Dr. Travlos’s
report does not contemplate intermittent symptoms.

[50]        
In sum, even with further Botox injections and local anaesthetic
injections, the medical evidence as a whole leads me to find that while such
measures may help the plaintiff’s pain (and there are ancillary risks), they
will not solve her condition nor allow the plaintiff to continue on her career
path or to be a mother without impairment.

VIII.        
Indivisible and Divisible Injuries

[51]        
In written submissions, plaintiff’s counsel categorized the plaintiffs
indivisible and divisible injuries:

33.    The
Plaintiff experienced a permanent and severe aggravation of the previously
minor symptoms in her neck, right shoulder, right arm, and right hand.  Ms. Johal’s
current ongoing symptoms in these areas are indivisible.

34.    The Plaintiff also suffered
injury to her back, pain and numbness in her face and eye, headaches,
difficulty sleeping, and mood disturbance.  She has also suffered from
myofascial soft tissue injury which has been superimposed over her pre-existing
symptoms at her neck, right shoulder, right arm, and right hand.  These
symptoms are divisible.

[52]        
Counsel agreed our jurisprudence is settled that if there is an indivisible
injury and the plaintiff had a pre-existing condition, the pre-existing
condition must be taken into account if there is a “measurable risk” that it would
have resulted in a loss in any event: Moore v. Kyba, 2012 BCCA 361.

[53]        
Counsel also agreed that a pre-existing vulnerability (“thin skull rule”)
should not take away from the quantum of an award: Athey v. Leonati, [1996]
3 S.C.R. 458.

[54]        
In considering whether there was a measurable risk that a pre-existing
condition would have resulted in a loss in any event, I first paid
particular attention to the testimony of the lay witnesses, specifically
co-workers, her ex-boyfriend and her mother.  Dramatic changes from the
plaintiff’s pre-accident condition to her post-accident condition, both
physically and in terms of her mental disposition (post-accident she was moody and
irritable) were observed.  Only the plaintiff’s mother knew about the plaintiff’s
pre-accident condition (numbness and tingling in right arm, stiffness and
soreness in neck and right shoulder after a long day’s work).  As noted, Dr. Namazi
generally described the plaintiff pre-accident as “better than average, healthy”.

[55]        
Defendants’ counsel argued that the plaintiff’s pre-existing condition
was more severe than observed by others because she put on a “brave face”. 
Based on the evidence, I reject this argument.  While one may put on a
brave face for a short while, this cannot be done over a long period of time
with long-term co-workers or close friends and family.  Even the plaintiff’s
ex-boyfriend was not aware of the plaintiff’s pre-accident condition.  He
described the plaintiff pre-accident as being “very up”, even after work.  He
observed that she had no physical issues.  In cross-examination, his
observations were not challenged.

[56]        
In short, the plaintiff’s pre-existing condition would only affect her
income-earning capacity if there was degeneration (“crumbling skull”).

[57]        
The medical evidence does not support an assertion that the plaintiff’s
pre-accident condition would degenerate.  In particular, Dr. McGraw’s
reports do not address the possibility of the plaintiff’s pre-accident
condition degenerating.  In his reports, he makes passing reference to the
plaintiff’s “self-report of a ‘rotator cuff injury’ at age 11 or 12”, but
does not pursue matters further nor does he change his orthopaedic diagnoses
set forth above, which is prefaced with the phrase, “As a result of the road
traffic accident of December 13, 2010.”

IX.           
Mitigation

[58]        
As noted, the defendants pleaded that the plaintiff failed to mitigate
her damages.  The defendants have the onus of proving that the plaintiff failed
to mitigate.  In order to do so, the defendants must show that the plaintiff
failed to undertake recommended treatment, that the treatment would have
worked, and that any refusal was unreasonable: Chiu v. Chiu, 2002 BCCA
618.

[59]        
The plaintiff is a career-oriented individual who has tried not to let
her injuries get the better of her.  That said, the plaintiff has found the
medical treatments available to be challenging.

[60]        
She found Botox treatment to be “scary; it was needles going into my
neck”.  Understandably, although she plans to have further injections, she is apprehensive
and cautious because of the stated risks, the number of needles involved and the
location of their insertion.  She testified that the treatment with Dr. Travlos
cost approximately $400 without reimbursement.  (Dr. Travlos did not
charge for his services related to the injection.)

[61]        
She discontinued prescription drugs at her father’s urging.  She was
also concerned that prescription drugs made her “spacey” and that Dr. Namazi
had at the outset warned her of the potentially addictive nature of some
prescription drugs.

[62]        
Defence counsel argued that the plaintiff has not sought as many treatments
with a kinesiologist as recommended.  However, the plaintiff has continued to
do rehabilitative exercises to strengthen her shoulder, back and core strength
(as opposed to the general workout she did prior to the accident).  Overall,
I am satisfied that the plaintiff has acted reasonably and has tried hard
to get better.

X.             
Damages

(a)           
Past wage loss

[63]        
The parties have agreed to a net past wage loss of $1,300.

(b)           
Non-pecuniary

[64]        
In Stapley v. Hejslet, 2006 BCCA 34, our Court of Appeal sets
forth some of the factors which may be considered in determining an award of
non-pecuniary damages:

[46]      The inexhaustive list of common factors cited in [Boyd
v. Harris (2004), 237 D.L.R. (4th) 193] 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
or 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, 2005 BCCA 54).

[65]        
Counsel agreed that the jurisprudence with respect to awards of
non-pecuniary damages is particularly fact-specific.  Plaintiff’s counsel
referred me to the following cases for guidance: Cimino v. Kwit, [2009]
B.C.J. No. 1348, Rollheiser v. Rollheiser, [2012] B.C.J. No. 2118,
and Bergman v. Standen, [2010] B.C.J. No. 2395.  Plaintiff’s
counsel states that an appropriate award would be $85,000.

[66]        
Defendants’ counsel suggests an award in the range of $30,000 to $50,000
based on the following cases: Guzman Gonzales v. Dueck, 2012 BCSC 792; Tsang
v. Ter Borg, 2012 BCSC 1249; St. Germain v. Jemmott, 2012
BCSC 1041; Fuchser v. Wilson, 2012 BCSC 176; Harris v. Zabaras,
2010 BCSC 97; Singh v. Borejszo, 2013 BCSC 1584, and Westfield v. Lindstrom,
2013 BCSC 360.

[67]        
I will award the plaintiff $85,000 for non-pecuniary damages.  In
considering the various factors, I have noted in particular the plaintiff’s
age, her loss of lifestyle with respect to athletics, and her determination to
make the best of her life despite chronic pain.  (I hesitate to use the word
stoic, because of the plaintiff’s engaging and outgoing personality.)

[68]        
I have also considered that the plaintiff wishes to be a mother.  As
noted, her injuries will give rise to practical, albeit surmountable,
difficulties in carrying or lifting a child or placing a child in a car seat.  With
respect to life’s memorably happy moments, she will not be able to experience
without apprehension the joy of playing ups-a-daisy with her child or gently
placing her sleeping baby in its crib.

(c)           
Loss of future income capacity

[69]        
In Perren v. Lalari, 2010 BCCA 140, our Court of Appeal sets
forth, at para. 32, the rule that there must be a “real and substantial
possibility of a future event leading to an income loss” before assessing the loss. 
The loss may be quantified using the earnings approach or the capital asset
approach.

[70]        
In Rosvold v. Dunlop, [2001] B.C.J. No. 4, our Court of
Appeal stated:

[9]        Because damage awards
are made as lump sums, an award for loss of future earning capacity must deal
to some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability, not
the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.  Possibilities
and probabilities, chances, opportunities, and risks must all be considered, so
long as they are a real and substantial possibility and not mere speculation.  These
possibilities are to be given weight according to the percentage chance they
would have happened or will happen.

[71]        
As noted above, I have found that the plaintiff’s career path has
been impaired.  As described by Dr. Caillier, the plaintiff has chronic
neck, upper back and shoulder pain, coupled with headaches.  Also, as described
above by Ms. Craig, the plaintiff’s limitations/abilities are:

Ms. Johal is limited to
light with some capacity for medium strength demand tasks (lifting, carrying,
pushing, pulling).  Ms. Johal is limited for repetitive right upper
extremity use at all levels, more significantly at upper levels.  She shows
reduced tolerance to work intensive sitting, an essential job demand.  She is
limited for reaching in stooped posture and in low level work postures.  She
does not tolerate weight bearing on the right upper extremity in a crawl
position.

[72]        
On the evidence, in order to become an operations manager and then a
general manager of a hotel, the plaintiff would probably have had to serve as
director of housekeeping, which is a more physically demanding job than her
current position.

[73]        
With her limitations, in my view, the plaintiff would have a
significantly reduced chance of being hired by a competitor.  If hired, she
would still be burdened by her limitations.

[74]        
The plaintiff called Mr. D. Benning, an economist who was
qualified, without objection, to provide future and cost of care income
calculations, and multipliers.

[75]        
Using the economic multiplier provided by Mr. Benning and basing his
findings on actuarial and economic contingencies associated with a woman of the
plaintiff’s age, living in British Columbia, plaintiff’s counsel first
calculated the present value of the lifetime earnings of a front office manager
of the plaintiff’s age working until age 65 to be $1,023,062.

[76]        
In his written argument, plaintiff’s counsel then stated:

If it were assumed that Ms. Johal
would have worked as an Operations Manager for 10 years (earning $85,000),
then have been promoted to General Manager (earning $140,000 per year), the
lump sum present value of her lifetime earnings in this scenario is
approximately $1,939,495.  The [difference] between this scenario and her
lifetime earnings as a Front Office Manager is $916,433.

[77]        
In his oral argument, plaintiff’s counsel suggested that the $916,433
figure be reduced by 20% to take into account the fact that he had used the
upper range of a hotel manager’s salary, and the plaintiff would, among other
contingencies, likely need to spend approximately two years as director of
housekeeping.  The resulting figure is $733,164 ($916,433 x 80%).

[78]        
Using Mr. Benning’s economic multipliers and assuming the plaintiff
worked for two years as a housekeeping director (at $62,000 per annum) and then
ten years as operations manager (at $85,000 per annum) and then continued to
work as a general manager until age 65 (at $130,000), the difference is $733,375,
which is very close to plaintiff’s counsel’s figure of $733,164.

[79]        
I am also mindful of plaintiff’s counsel’s concern that the plaintiff is
“currently working beyond her capacity and at an unsustainable pace”.  The
testimony of Mr. B. Wong, an assistant front office manager who works
closely with the plaintiff in Ottawa, supported plaintiff’s counsel’s concern.

[80]        
With modification, I will adopt plaintiff’s counsel’s approach.  I will
assign a larger percentage to other contingencies than he has done.  For
example, it is possible that, even if healthy, the plaintiff would not achieve
her career goal of becoming a general manager.  Similarly, there is some
chance, and I am not optimistic, that the plaintiff, despite her health,
will achieve her career goal.  I will use a one-third discount. 
Accordingly, the award is $611,000 ($916,433 x 0.6667 = $610,985.88 rounded).

[81]        
In looking at the capital asset approach, I note that the four key
factors listed by Justice Finch (as he then was) in Brown v. Golaiy,
[1985] B.C.J. No. 31, and cited with approval in Perren, are all
readily met and would also be generally consistent with the award.  The four
factors are:

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

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

3.      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.      The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

(d)           
Cost of Future Care

[82]        
Plaintiff’s counsel has itemized the cost of future care:

The Plaintiff is advancing one-time care costs as
follows:

The Plaintiff is advancing yearly
costs for in the following amounts:

[83]        
Several notes are in order.  First, the Botox injections and the
seasonal cleaning and gardening are projected for ten years.  The Botox is
limited because it is not necessarily effective over a long period of time. 
The seasonal cleaning and gardening is limited because the plaintiff does not
have a house at this time.  The calculation is a rough calculation of that
which may be required in the future (possibly for more than ten years).  The
plaintiff has paid friends to help her with heavier chores at her Ottawa
apartment.  Second, the other yearly items are projected until the plaintiff
reaches age 65.

[84]        
Using an economic multiplier from Mr. Benning’s report (8.439 for
10 years), for the Botox injections and cleaning and gardening assistance, and
an actuarial multiplier (23.036) for the other yearly expenses, plaintiff’s
counsel advances a total claim of $128,403.

[85]        
In my view, there is some overlap of items.  For example, to the extent
chiropractic treatments relieve pain, fewer massage or physiotherapy sessions
may be needed.  Also, as noted above, the plaintiff is a determined individual
who undertakes a regular course of rehabilitative exercises.

[86]        
With respect to a gym pass, with her background as an athlete with a
pre-accident regimen of regular exercise, it is very likely such an expense she
would have incurred in any event.

[87]        
In sum, considering the variables, I will award the plaintiff
$90,000 as the cost of future care.

(e)           
Special damages

[88]        
The plaintiff’s claim for special damages is $10,000.48.  I will reduce
the claim by the amount claimed for a gym membership in Ottawa (September 2011
to September 2013) of $1,730.60.  I will award special damages of
$8,270 ($10,000 – $1,730.

XI.           
Conclusion

[89]        
If either party wishes to speak to “tax gross-up” aspects, I ask that
a time in the near future be arranged through Trial Scheduling.

____________
“Funt J.”_____________
Funt J.