IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140319

Docket: M10479

Registry:
Campbell River

Between:

Shalaine Lawson

Plaintiff

And:

Edele Samantha
Kirk

Defendant

Before:
The Honourable Mr. Justice Johnston

Reasons for Judgment

[1]            
This is a claim for damages arising out of a motor vehicle accident that
occurred July 26, 2010. The defendant has admitted liability for the accident
and -quite refreshingly – has admitted the plaintiff was injured in the
accident.

[2]            
The parties have agreed that the plaintiff lost income prior to trial in
a net amount of $2,425.50, and the defendant is ordered to pay that amount to
the plaintiff.

[3]            
The parties have agreed that the plaintiff has incurred special damages,
mostly for physiotherapy user fees and mileage to medical appointments in the
amount of $456.76, and the defendant is ordered to pay that amount.

[4]            
The parties have further agreed that the plaintiff will require $1,000
for future care, mostly for non-prescription anti-inflammatories or pain
medication, as well as some aquasize sessions, and the defendant is ordered to
pay that amount.

[5]            
At issue are the quantum of non-pecuniary damages that should be awarded
to the plaintiff, and whether the plaintiff should be awarded damages for loss
of future earning capacity and loss of housekeeping capacity.

[6]            
Ms. Lawson is now 24 years old. She was 20 at the time of the accident
giving rise to this action. She grew up in Campbell River where she graduated from
high school in 2007 with marks she described as “not very good.” Her best
subject was physical education and her particular interest was soccer, which
she has played since she was four or five years old. Before the accident, she
played on rep teams and her high school team and was captain of both. She has
continued to play soccer in a local women’s league since graduating from high
school.

[7]            
Ms. Lawson has been in a relationship with Mr. Furnseth since 2009.
Mr. Furnseth is a driller/blaster whose work pattern is 10 days at work,
followed by four days off. Presently he works close enough to Campbell River
that he can come home at night, but he has worked in remote locations which
required him to live in camp for the 10 work days, and he could only come home
on his four days off.

[8]            
Since 2011, Ms. Lawson and Mr. Furnseth have lived in a five bedroom,
three bathroom split level home with Ms. Lawson’s four dogs.

[9]            
Ms. Lawson had a previous accident in April 2007, about two months before
her high school graduation. In that accident, Ms. Lawson suffered
primarily soft tissue injuries to her neck and back. She missed some soccer as
a result of those injuries but graduated from high school on schedule. When she
returned to playing soccer, she says that at first she was not the same player
she was before that accident because she was more hesitant. Ms. Lawson
testified that as time passed, she returned to normal as far as her soccer
playing was concerned.

[10]        
At the time of the first accident, Ms. Lawson worked at a local
McDonald’s restaurant, and after being off work for a month or two, was able to
return to her regular duties.

[11]        
Ms. Lawson’s employment history before the 2010 accident mostly involved
service jobs at or near minimum wage. She has worked in a local bakery,
starting at minimum wage and eventually rising to $11.25 per hour. She has also
worked at fitness clubs, briefly for a pizza parlour and briefly at a wine and
beer store.

[12]        
Some of these jobs involved janitorial work, most of them required some
bending and stooping, and all involved some level of retail customer service.

[13]        
In December 2009 Ms. Lawson and Mr. Furnseth moved to Fort St. John for
reasons connected to Mr. Furnseth’s employment. Ms. Lawson worked briefly in
Fort St. John at a chain restaurant, but most of the five months the two
were in Fort St. John, she stayed at home keeping the house and
cooking the meals for the two of them.

[14]        
In the five months Ms. Lawson and Mr. Furnseth were in Fort St. John,
Ms. Lawson drove back and forth to Campbell River two or three times, she
says with no difficulty.

[15]        
Ms. Lawson and Mr. Furnseth moved back to Campbell River toward the end
of May 2010 and Ms. Lawson went back to work at the bakery. In June 2010 she
started a second job at a fitness centre where she did light janitorial work,
including a lot of vacuuming, sold products to customers, and put away weights
left lying around by customers.

[16]        
At the time of the accident, Ms. Lawson was driving her 4Runner motor
vehicle along Pine Crest Road in Campbell River. The defendant backed out of a
driveway into Ms. Lawson’s path, when Ms. Lawson was so close she could not
avoid a collision. Although Ms. Lawson’s vehicle was drivable after the
accident, it was subsequently written off.

[17]        
At the scene of the accident, Ms. Lawson noticed that her back “was a
little bit sore” when she bent over to pick up some plastic off the roadway.
After first going home to shower, she went to hospital where she was examined
and discharged. She says her back was hurting at the hospital.

[18]        
She then went to her family physician, Dr. Meckin, complaining of both a
sore back and knee. She could not recall if she was complaining of a sore neck
and a sore thigh on her first visit with Dr. Meckin. She testified that her
back was quite sore and she felt very stiff in the mid-back and mid-lower-back
areas.

[19]        
When Ms. Lawson was asked to quantify her pain, she was invited to use a
reference, a subsequent hand injury she suffered while working on her father’s
fish boat. In that accident, the plaintiff broke one finger and crushed another
and was asked to consider the pain from that injury as a 10 and to rank her
neck and back pain arising out of the motor vehicle accident against it.

[20]        
With that reference, Ms. Lawson says that in early August 2010, the
motor vehicle accident injuries were probably at a seven level, and while the
pain was not constant, it occurred quite often. It is less frequent now. She
testified that in the last several months prior to trial, her pain has ranged
between one and six or seven, that mostly she has mild discomfort, but
sometimes — she says not all that often — she has bad spasms.

[21]        
Ms. Lawson saw Dr. Meckin four times for injuries suffered in the motor
vehicle accident, and a walk-in clinic physician five other times. She was
asked why she had not been to the doctor more often and she said that she does
not like to sit in doctors’ offices, she knows she has soft tissue injuries and
that there is little doctors can do for those, and she just wants to get on
with her life. Ms. Lawson has had a few physiotherapy sessions, two in the fall
of 2010, two more in the first half of 2011. That treatment involved
application of heat, some light treadmill exercises and stretching and she
agrees she received some benefit. She says that she has heat pads at home,
knows how to do the exercises herself, and that she has maintained her own
routine of walking or jogging every day, exercising at home four or five times
a week, and occasionally going to the gym. I consider Ms. Lawson’s approach to
medical treatment to be quite pragmatic, given the nature of her soft tissue
injuries and her previous experience with similar injuries.

[22]        
Ms. Lawson says that her acute pain was daily in the first few months
after the accident, although it would not last all day. She did return to work
at the bakery immediately after the accident but only long enough for her
employer to find someone to replace her, because she found it very
uncomfortable to do the bending that was a large part of the job. She remained
at the fitness centre but on light duties, with no vacuuming. She mostly sold
gym passes and answered the telephone.

[23]        
At the time of the accident, Ms. Lawson and Mr. Furnseth were living in
a one-level rental home. Ms. Lawson testified the home got quite dirty after
the accident. I infer that Mr. Furnseth was working out of Campbell River at
the time and was only home every 10 days. Since moving to their current home,
Ms. Lawson has had to deal with stairs because the laundry is at the bottom
level and the living area is at the top. She says vacuuming and carrying the
laundry up and down the stairs are difficult, although she does both four or
five times a week. Ms. Lawson says that vacuuming particularly makes her back
very sore and that the pain from such activities will last all day and into the
next. She has little time to recover from the discomfort because the house work
needs to be done.

[24]        
When Mr. Furnseth was at home from camp for four days, she tried to do
as little house work as possible, which has meant that Mr. Furnseth did most of
it.

[25]        
Mr. Furnseth has been working near Campbell River, and therefore not
required to live in camp, since mid-2013. Since then, he has done most of the
house work. Both he and Ms. Lawson agreed that when Mr. Furnseth comes home at
about 6:00 p.m., at some point between then and when they go to bed, he will
spend 40 minutes or so on household chores that Ms. Lawson would ordinarily do.
Those chores include doing the laundry, although Ms. Lawson folds the laundry after
Mr. Furnseth has brought the clean clothes up the stairs. Mr. Furnseth
does most of the vacuuming, Ms. Lawson does it perhaps once a week.

[26]        
Before the accident, Ms. Lawson was exploring the possibility of further
education or training in order to improve her job prospects beyond the minimum
wage type of jobs she had been able to find since leaving high school. She had
gone to a local community college to inquire about a dental assistant program,
which would last about 10 months. Ms. Lawson had filled out some paperwork to
enrol in that program but was waiting for a funding decision from her Indian
band when the accident occurred. Very quickly after the accident Ms. Lawson
realized that a career that involved prolonged stooping was perhaps not an
ideal choice, given the injuries she had suffered to her back. She testified
that the similar injuries she suffered in the first accident had nothing to do
with her decision not to pursue the dental assistant program.

[27]        
As far as overall career goals are concerned, Ms. Lawson was fairly
candid in conceding that she really did not know what she wanted to do
career-wise but she did know that she did not want to sit in school for years,
while at the same time being tired of minimum wage jobs.

[28]        
When Ms. Lawson returned to work at the bakery after the accident, her
job duties were modified so that she was able to delegate tasks that she was
unable to do without significant discomfort and she was permitted to sit down
when she needed to do so.

[29]        
In December 2011 Ms. Lawson went to work as a cook on her father’s fish
boat. Her job description on the boat was cook/deckhand, and the expectation of
someone in that job is that when needed on deck, the cook/deckhand will
participate in heavier work such as chopping ice, drying nets, sorting fish,
hosing down the decks and handling mooring lines. While Ms. Lawson could do the
cooking with some discomfort, she was unable to fully participate in the
deckhand portions of her duties. She said she had daily discomfort while
fishing but the crew made allowances for her. That the crew made allowances for
her can be explained by the fact that the skipper was her father and the rest
of the crew were her brothers. While her brothers did not testify, her father
did and it is clear that he feels protective toward the plaintiff and, as he
put it, will support her until he gets old and she can support him.

[30]        
Both Ms. Lawson and her father testified that Ms. Lawson is not
competitively employable as a cook/deckhand because of residual back problems,
and that she works as a cook/deckhand only because her father and brothers
accommodate her.

[31]        
Ms. Lawson does get a full crew share without deduction for her less
than full participation.

[32]        
So far, Ms. Lawson has fished the herring fishery and summer salmon
fishery. She has not fished the roe kelp fishery which her father, Mr.
 Lawson, describes as more strenuous and requires more capacity than he believes
Ms. Lawson has. The roe on kelp fishery usually produces $25,000 as a crew
share for a fishery, whereas herring produces roughly half that amount.

[33]        
I should not leave the fishing income question without noting a
contradiction between the evidence of Ms. Lawson and her father. Mr. Lawson
believes that Ms. Lawson was working for him as a cook/deckhand before the
July 2010 accident, and without difficulty. Ms. Lawson was firm that she did
not start to fish with her father until the summer of 2011, after the accident.
Mr. Lawson’s recollection was not phrased as definitely as his daughter’s. I
accept Ms. Lawson’s evidence over her father’s, with the discrepancy explained
by Mr. Lawson’s evidence that Ms. Lawson has been on or about the boat
since she was very small, that she has always indicated an interest in working
on the boat, and Ms. Lawson has been involved for many years in pre-trip
preparation and stocking the boat as part of the family effort. I conclude from
that that Mr. Lawson was simply confusing Ms. Lawson’s presence on the boat
prior to the accident with paid employment on the boat, which did not come
until after the 2010 accident.

[34]        
Ms. Lawson has continued to play soccer since the accident. When she got
back from Fort St. John about two months before the accident, she resumed her
soccer and played in a full tournament on the Canada Day weekend, she says
without difficulty. After the accident, she was unable to play soccer through
the fall of 2010 and into the spring of 2011, at which time she resumed by
playing a couple of half games. Ms. Lawson went back to league play in
September 2013 and has participated fully in soccer since then, although she
says she sometimes gets sore. She is reluctant to head the ball because it
causes her discomfort in her mid-back and she has stopped playing the center
back position. She still does not fully engage in soccer practices with her
team because the field is mostly gravel and when it is cold or frozen the
additional stress from practices cause her to experience too much discomfort.

[35]        
When asked about her current condition, Ms. Lawson says that she will
wake up without pain perhaps three times a week, and sometimes pain will
develop later in the day, sometimes not. Other days she wakes up feeling sore
and her back will feel fatigued and sore as the day wears on, with the
discomfort rising to a level four or five. She uses Advil four or five times a
week and particularly uses Advil before and after soccer games or, if she does
go to soccer practice, before and after practice. When her neck gets sore, she
may develop a headache, for which she again takes Advil.

[36]        
Ms. Lawson has enrolled in a business administration program at North
Island College. The courses are conducted at the Campbell River and Courtenay
Campuses of the college, so she has had to drive 50 kilometers or so to
Courtenay to take some of her classes. She has found that drive uncomfortable,
particularly in her neck, between her shoulder blades and in her back. Ms.
Lawson’s progress in the business administration program was at a standstill at
the time of trial, largely because she has taken all the courses she can take
that do not require a mathematics prerequisite. She is currently trying to
bring up her mathematics skills through home study. She testified that if she
is unable to conquer the mathematics requirements for the business
administration course, her alternative is working as a cook/deckhand on her
father’s fish boat.

[37]        
Ms. Lawson has testified that she had considered as possible careers outdoor
work such as for the Department of Fisheries and Oceans or as a conservation
officer, but she has not pursued either because her injuries made her think she
could not perform the job comfortably. There is no real basis upon which to
evaluate whether either such career was realistically attainable if there had
been no accident, given Ms. Lawson’s description of her lacklustre high
school academic performance and her current difficulties with the mathematics
prerequisite in the business administration course.

[38]        
The hand injury in the summer of 2012 interrupted her fishing and
resulted in a payout from WorkSafeBC of some $14,000 to reflect their
assessment of a relatively small permanent disability in Ms. Lawson’s dominant
right hand. Her hand has recovered to the point where her grip strength is
pretty good, she says, but she has cold sensitivity, her right hand will get
stiff if the weather is cold or foggy and there are some small mobility
problems remaining. These problems will not affect her ability to fish with her
father.

[39]        
Recreationally, Ms. Lawson used to hike and says she does not do the
more challenging trails anymore because of discomfort. She acknowledged having
said, on discovery, that no regular recreational activity, hobbies or holiday
plans had been affected by the accident and that was true when she said it.
This inconsistency is troubling, although Mr. Furnseth has confirmed that he
and Ms. Lawson used to take a particular hike called the Ripple Rock trail
together before the accident and they have not done so since. Ms. Lawson
continues to walk quite a bit and, as previously indicated, walks or jogs daily
for exercise, although now her walking is mostly in the woods where trail
surfaces are softer.

[40]        
Ms. Lawson had two dogs at the time of the accident. She now has four
and they are reasonably sizeable apparently. As an example, Ms. Lawson was
examined by Dr. Leete, an orthopedic surgeon, in November 2013. Dr. Leete had
seen her before. On this last occasion, Dr. Leete commented that Ms. Lawson had
told him that the day before his examination, one of her dogs had cut its paw
in the woods and she had carried the dog – which weighs 65 pounds – some 300
meters, causing back discomfort. Dr. Leete did note on that examination that
the plaintiff had palpable spasm in her back.

[41]        
When asked about any emotional consequences of her injuries, the
plaintiff was quite phlegmatic: she said she has had a hard time coping with it
on some days but she had not gone to the doctor to complain of depression, she
said she had been emotional in her doctor’s office sometimes but never suicidal
about it.

[42]        
Ms. Lawson agreed that in November 2009, some eight months before this
accident, she told Dr. Leete that she had severe mid- to low-back pain, that
she was reluctant to head the ball playing soccer and that she had changed
positions on her soccer team from center back to wing. She also agreed that she
told Dr. Leete that she had pain between two and six to seven on a scale to ten.

[43]        
She agreed that she told Dr. Loomer, another physician, in November 2009
that she had intermittent pain in her neck, mid-back and low-back, that
prolonged standing in one position caused a problem but she was able to carry
on work, and that she also told Dr. Loomer that she did not head the ball when
playing soccer.

[44]        
Mr. Furnseth testified that one of the activities he and Ms. Lawson used
to pursue before her accident was riding off-road vehicles (“quadding”) and
that they no longer do that because the jarring is too uncomfortable on Ms.
Lawson’s back.

Non-pecuniary Damages

[45]        
Ms. Lawson has agreed that the injuries she suffered in her 2007
accident were very similar to those suffered in this accident, and that her complaints
in late 2009, arising out of the 2007 motor vehicle accident, were very similar
to complaints she had in 2012 and 2013, following this accident. That raises
the question of divisible or indivisible injuries.

[46]        
I conclude that, for the purposes of causation, the injuries from the
two accidents are divisible. Although Ms. Lawson had very similar complaints of
discomfort arising from the same areas of the neck and back, I accept her
evidence that her symptoms from the first accident had resolved by the time of
the second accident. From the point of view of damage assessment, I find there
was no measurable risk that the injuries caused in the first accident which would
have resulted in ongoing losses in any event, so that pre-existing risk need
not be taken into account in assessing the damages flowing from this
defendant’s negligence. See Moore v. Kyba, 2012 BCCA 361 at para. 43.

[47]        
I say that for these reasons:

·      
Ms. Lawson was able to do all of the housework while she and
Mr. Furnseth lived in Fort St. John from December 2009 to May 2010;

·      
In that same period, Ms. Lawson drove the considerable distance
between Fort St. John and Campbell River and back again two or three times with
no difficulty;

·      
When she returned to Campbell River in late May 2010, Ms. Lawson
resumed her duties at the bakery, with no difficulty;

·      
Ms. Lawson took up the second job at a fitness center in June
2010, again without difficulty;

·      
Ms. Lawson participated in a soccer tournament on the Canada Day
weekend in 2010 without difficulty.

[48]        
I have accepted Ms. Lawson’s evidence that she was able to do the above
activities without difficulty. I have discounted Mr. Furnseth’s evidence that,
while the two were in Fort St. John, he and Ms. Lawson engaged in activities
such as riding off-road vehicles because Ms. Lawson did not testify to those
activities.

[49]        
The view of the evidence most favourable to the defendant would be that
Ms. Lawson’s injuries arising out of this accident acted upon a plaintiff who
was perhaps more susceptible to injury as a result of the earlier accident,
that is to say, in which Ms. Lawson’s damages should be assessed on the basis
that the “thin skull” reasoning as opposed to a “crumbling skull” reasoning.

[50]        
The plaintiff has cited authorities in support of a claimed range for
non-pecuniary damages of $40,000 to $65,000. The plaintiff’s authorities are as
follows:

 1. Prince
v. Quinn, 2013 BCSC 716;

 2. Hatch
v. Kumar, 2013 BCSC 2049; and

 3. Austin
v. Reardon, 2014 BCSC 37.

Prince and Hatch more closely approximate Ms.
Lawson’s injury situation. Prince, I find, involved somewhat less severe
injuries and I note that the trial judge there was somewhat troubled by
inconsistencies in the plaintiff’s evidence, which are not a major feature with
Ms. Lawson. Of the two, Hatch is most analogous in my view, allowing for
the fact that the plaintiff in Hatch was 49 years old compared to
Ms. Lawson’s 24 years old.

[51]        
The cases cited by the defendant are as follows:

  1. Lumley
v. Balilo, 2013 BCSC 1052;

 2. Nair
(Litigation guardian of) v. Cindric, 2013 BCSC 2128;

 3. Christoffersen
v. Howarth, 2013 BCSC 144; and

 4. Carter v.
Zhan, 2012 BCSC 595.

Christoffersen is perhaps the closest to Ms. Lawson’s
circumstances. The plaintiff in Lumley was found to have been
exaggerating. The plaintiff in Nair was younger than Ms. Lawson and able
to engage in quite active dance routines, albeit with some aggravation of
discomfort. The plaintiff in Carter was found to be passively accepting
of injuries, focussed on her pain, not a stoic, and with some credibility
problems.

[52]        
Recognizing that authorities are at best rough guides to an appropriate
damage range, I assess Ms. Lawson’s damages for non-pecuniary losses at
$45,000.

Loss of Earning Capacity

[53]        
Ms. Lawson appears to have been more suited to occupations involving a
physical component rather than those requiring higher education or a strong
academic background. The evidentiary record with respect to Ms. Lawson’s
aptitudes is relatively sparse. She appears to have been an indifferent student
in high school, and is struggling with some reasonably basic mathematics
requirements in her current business administration endeavours.

[54]        
The evidence does not permit a measured conclusion as to the occupations
for which ongoing intermittent back problems might cause difficulty.

[55]        
That Ms. Lawson presented to Dr. Leete with palpable spasms the day
after carrying her 65 pound dog would indicate that heavier occupations might
be inadvisable.

[56]        
That her father is reluctant, to say the least, to take Ms. Lawson on
the roe on spring or kelp fishery is a good indicator that her earning capacity
has been impaired by her injuries.

[57]        
This is not the sort of case, nor is the evidence sufficiently clear, to
permit quantification of this loss by the earnings approach. Instead, damages
are better assessed as an impairment of Ms. Lawson’s human capital.

[58]        
I am satisfied that the injuries have made Ms. Lawson less capable
overall of earning an income; she is less marketable as a potential employee.
This has been demonstrated through her father’s evidence. I am satisfied that
if she had not been injured in this accident, Mr. Lawson would have taken on
Ms. Lawson as a cook/deckhand for the roe on kelp fishery, and that lost opportunity
can be roughly measured at $25,000 per year.

[59]        
As a future loss, this head of damage should be approached as a balance
between the likelihood that there will be a loss, which I think is reasonably
high, and the quantum of the loss, which is somewhat difficult to ascertain.

[60]        
I assess the loss of earning capacity, by reference to one year’s lost
earnings in the roe on kelp fishery, as $25,000.

Loss of Housekeeping Capacity

[61]        
I am satisfied that Ms. Lawson would have continued to be responsible
for housework, in part because she did that as her contribution to reflect Mr. Furnseth’s
much higher earning capacity. Ms. Lawson did not profess to be completely
enamoured of housework but she did do it and she did it frequently before the
2010 accident; she is now unable to do it as frequently or without discomfort.
That this is a compensable loss is established by McTavish v. MacGillivray,
2000 BCCA 164.

[62]        
The plaintiff has attempted to quantify the loss by testifying that she
looked on Facebook and determined that there were people offering housekeeping
or homemaking services at $20 per hour. This is an inadequate basis upon which
to arrive at an arithmetic calculation of a loss. Instead, reflecting that
housework was in my view more of a chore than a source of enjoyment to
Ms. Lawson and that she continues to be able to do some of it, albeit with
some difficulty, I assess her damages under this head at $5,000.

[63]        
The parties may speak to costs if necessary.

                “R.T.C.
Johnston, J.”           

The
Honourable Mr. Justice Johnston