IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140331

Docket: M7687

Registry:
Campbell River

Between:

Erika Anne Watkins

Plaintiff

And

David Anton
Dormuth
and
Minister of Public Safety and Solicitor General for the Province of
British Columbia on behalf of her Majesty the Queen in Right of the
Province of British Columbia
and
The Attorney General of Canada

Defendants

Before:
The Honourable Mr. Justice Blok

Reasons for Judgment

I.                
Introduction

[1]            
“Bait car activation — let’s go!”  Those words, spoken by the Campbell
River RCMP watch commander, resulted in the immediate deployment of four police
officers, each in separate cars, all proceeding in urgent or emergency fashion
to the bait car location.  At an intersection just 158 metres from the detachment
driveway, one of the police cars “T-boned” a car driven by Erika Watkins, who
was turning left when the police car attempted to pass her on the left.  The
collision caused injuries to Ms. Watkins that changed her life and which
may be permanent.

[2]            
Both liability and damages are in issue in this case.  The liability
issue centres on the defendants’ assertion that the police officer, Cst. David
Dormuth, was entitled to do what he did, Ms. Watkins ought to have seen
his emergency lights and heard his siren so as to get out of his way, and that
he had no opportunity to avoid the collision once he decided to pass and Ms. Watkins
decided to turn.  Ms. Watkins argues that the police officer was not
entitled to make the risky manoeuvre he did and that his negligence is the sole
cause of the accident.

[3]            
On damages, the principal issue is whether Ms. Watkins continues to
suffer the effects of a mild traumatic brain injury.

II.              
Liability

A.             
The Accident Scene

[4]            
The accident occurred at the intersection of Dogwood Street and
Pinecrest Road in Campbell River.  Dogwood Street is a main arterial street,
oriented in a nominally north-south direction, and is the principal inland
route for travel to and from the north and south areas of the community.  It
has two lanes in each direction that are divided by a solid yellow line, and no
on-street parking is permitted.  The speed limit is 50 km/h.

[5]            
The area is a mix of residential and commercial or institutional uses.  If
proceeding north on Dogwood Street towards the accident location, one passes (on
the east side) the city operations facility, the RCMP detachment and then a
large recreation complex called Strathcona Gardens.  At about the south
boundary of the Strathcona Gardens property, Dogwood Street begins a
significant downhill grade towards the north.

[6]            
At the intersection of Pinecrest Road there is a pedestrian-controlled
crosswalk with two short concrete islands or medians dividing the north and
southbound travel lanes, located on either side of the crosswalk itself.  Vertical
object markers, which might informally be described as hazard signs, are on
each concrete median.

B.             
The Accident

(a)      Ms. Watkins

[7]            
On the morning of March 4, 2007 Ms. Watkins was on her way to work
at the Elk Falls pulp and paper mill.  Her shift started at 6:30 a.m.  She took
her usual route from the southern neighbourhood of Willow Point towards the
mill, which is located at Duncan Bay, north of town.  It was dark out and the
street lights were on.  The road was wet but it was not raining.  Ms. Watkins
was driving a grey or silver 2003 Mazda Protégé in the right-hand lane of the
two available lanes as she proceeded north on Dogwood, approaching the RCMP
detachment.  Her speed was 50 km/h.  As she approached, a police car pulled out
of the detachment driveway ahead of her, going northbound.  Ms. Watkins
changed lanes to the left-hand northbound lane, anticipating an upcoming left
hand turn, which was part of her usual route to work.  As she passed the police
station, another police car exited and passed her in the right lane.  Both of
the police cars had their emergency lights on, but no sirens.

[8]            
Ms. Watkins decided to turn left at Pinecrest Road, two or three blocks
earlier than her usual left turn at Evergreen Road, to avoid whatever was
apparently going on ahead that had prompted the police activity.  As she
approached Pinecrest she was focusing her attention on the police cars ahead as
well as any oncoming traffic, because she was about to turn left.  She slowed
down, geared down, put her signal on, and that is all that she remembers.  Her
next memory is at the hospital.

[9]            
Ms. Watkins said she did not see any police cars other than the two
that were ahead of her (one of which had passed her), and she did not hear any
sirens.

(b)      Christopher Pallan

[10]        
Christopher Pallan was one of the officers working at the detachment
that morning.  Although he has now retired from the force I will refer to him
as Cst. Pallan.

[11]        
Cst. Pallan said that each police car is fitted with a laptop computer
that, among other things, serves as a mode of communication between members. 
It also provides information on calls to which officers are responding.  He
would log on at the beginning of his shift and would stay logged on even though
he was not in his car.  He would only log off just before he left for home.

[12]        
In the time immediately before the accident, all members of the watch
were at the detachment.  Cst. Pallan was finishing his shift, doing
paperwork at a desk.

[13]        
At one point there was a commotion and Cst. Pallan noted people
running towards the back door.  No one said anything to him, and he had not
heard anything on the radio.  He stood up to see what was going on.  He thought
the other officers had disappeared and he was the only one left.  At that point
Cst. Dormuth appeared and Cst. Pallan asked him what was going on. 
Cst. Dormuth told him that there was a bait car activation at a particular
location.  Cst. Pallan was given no details of the activation other than
the street location.  At that time, bait cars were fairly new to Campbell
River.  Cst. Pallan said he would follow Cst. Dormuth as Cst. Pallan
was not sure of the location.  Both officers exited the detachment and headed
to their vehicles.  Cst. Pallan saw other police cars heading out with
their lights on.  Cst. Dormuth got in his vehicle and left ahead of Cst. Pallan. 
As Cst. Pallan approached the end of the driveway at Dogwood Street, he
noticed a smaller car going north on Dogwood.  He saw Cst. Dormuth’s
vehicle turn right to go north on Dogwood after the smaller vehicle passed the
detachment driveway.

[14]        
When Cst. Pallan arrived at Dogwood Street from the RCMP driveway he
could see Cst. Dormuth accelerating in the fast or left lane, coming up on
the Watkins vehicle.  Cst. Dormuth came right up to it.  He saw the
Dormuth vehicle brake slightly as it approached Pinecrest.  He then saw the Dormuth
vehicle turning into the oncoming lane of traffic and accelerating.  The
Watkins vehicle then turned left in front of the Dormuth vehicle.  The Dormuth
vehicle went as far to the left as it could but it collided with the Watkins at
the driver’s door.

[15]        
When Cst. Pallan arrived on scene the police car’s hood was up and
flames were coming out.  His first reaction was to put the fire out.  He went
on the radio to get an ambulance and the fire department, and to notify other
members of the accident.  He then retrieved his vehicle’s fire extinguisher and
used it to extinguish the flames coming from the front of the police car.

[16]        
Cst. Dormuth had exited his car and was limping a bit.  Cst. Dormuth
went to check on the other driver.  Cst. Pallan also went over to the
other driver and asked her if she was all right but she did not respond right
away.  After a couple of seconds he noticed she had got up and looked at him
and, to Cst. Pallan, she seemed okay but he had no conversation
with her.

[17]        
When Cst. Pallan was asked if he would have attempted to pass the Watkins
vehicle in this manner, he said he probably would not have given available information. 
All he knew was that there was a bait car activation.  On that information, he
said he probably would not have made that move.  He said it was “a bit
aggressive”.  While Cst. Dormuth apparently felt he needed to make that
aggressive move, Cst. Pallan did not know what information Cst. Dormuth
had that made him feel the situation was so urgent.  Cst. Pallan acknowledged
that he had been in a similar collision previously and that this would have
been in his mind in pondering whether to do such a manoeuvre again.

[18]        
Cst. Pallan added that when Cst. Dormuth’s car was directly behind the Watkins
vehicle he could not see the latter’s tail lights because Cst. Dormuth’s car
blocked his view of the Watkins vehicle.  He said he did not see a turn signal
on the Watkins vehicle, although it is possible that there was one.  Asked if
Cst. Dormuth swerved to avoid the Watkins vehicle, Cst. Pallan said
that it appeared to him that Cst. Dormuth attempted to go left, as far
left as he could in the oncoming lanes, but there was a point where a collision
could not be avoided.  He said that Cst. Dormuth got most of his vehicle
into the oncoming curb lane, with his vehicle perhaps two feet inside that
lane.  He estimated Cst. Dormuth’s speed at 70 km/h.  He could not say how
fast the Watkins vehicle was going but said “I know it was going slow”.

[19]        
Cst. Pallan said the Dormuth vehicle had its dome lights on but he could
not say if the siren was on.  When an earlier statement was put to him, a
statement where he had said that the siren was on when he came on to the scene,
he acknowledged that if he wrote it in his statement then the siren would have
been on.

[20]        
As to his own vehicle’s emergency equipment, Cst. Pallan said he had his
dome lights on, but the most he could say about his siren was that it was on after
the accident because the accident location was below the crest of a hill, it
was dark out and he was concerned about other vehicles coming over the hill and
onto the scene.

(c)      Cst. David Dormuth

[21]        
Cst. David Dormuth has been an RCMP constable for 9 ½ years, all of
which have been spent in Campbell River.  For 28 years prior to that he was an
ambulance paramedic and so he had a lot of experience operating an emergency
vehicle.  As a paramedic he took training in emergency vehicle operation and was
been re-certified every five years at a training facility.

[22]        
Cst. Dormuth was working in the detachment’s traffic section.  The traffic
section has two cars with enhanced equipment.  These vehicles have a light bar
on top, lights on their side mirrors, two external sirens mounted in the push
bar, two sideways-facing lights on the push bar, as well as “wig-wags”, which
are alternating headlights.  The dome lights are bigger and brighter than those
on the normal vehicles, and they have two 100-watt sirens instead of the one
siren normal police vehicles have.  The sirens are enhanced because this is
necessary for highway use.

[23]        
 On the night in question Cst. Dormuth started his shift at 6:00 p.m. and
ended his shift at 4:00 a.m.  He had finished his shift and signed off on his work
station/computer, which is the device the police use for their communications. 
He went inside the detachment to catch up on paperwork and was still in the
detachment as 6:00 a.m. approached.  At that point, the watch commander, Cpl. Herman,
came out of his office and said, “bait car activation – let’s go!”

[24]        
Cst. Dormuth took bait car training in 2005.  That training was evidenced
by a PowerPoint presentation that was marked as an exhibit at trial.  Officers
were told that if there is a bait car activation then they will be notified via
a special code telling them to check their mobile computer stations so that
they would avoid what was then still a problem with people using police
scanners to monitor police activities.

[25]        
As noted earlier, however, Cst. Dormuth did not have his work station
activated because he signed off at the end of his shift, and he was therefore
unable to receive any details of the dispatch.  All Cst. Dormuth had in
the way of dispatch information were the words of the watch commander, that is,
“bait car activation”.

[26]        
Cst. Dormuth had turned off his mobile work station/computer and did not
turn it back on because it takes five minutes to boot up and then the user has to
log in.  Instead, he simply radioed the dispatcher that he was responding.

[27]        
A bait car activation can occur by the mere opening of a car door or
trunk.  The PowerPoint training session told them that if there is an
activation by the opening of a door of a bait car, or the bait car is in
motion, officers are to proceed “Code 2”.  Code 2 means respond immediately but
without using emergency equipment.  However, officers are to go “Code 3”,
responding immediately with the use of emergency equipment, if there is a car trunk
activation because that is where all the electronics are and more urgency is
required because they do not want these to be damaged or removed.

[28]        
Cst. Dormuth found out later that the training he received was incorrect
in that officers are to proceed on a Code 2 basis for all bait car
responses, never Code 3.

[29]        
I return to Cst. Dormuth’s description of the incident.  After hearing
Cpl. Herman, Cst. Dormuth and the other officers proceeded to their
vehicles.  Cpl. Herman and Cst. Munroe were already in their vehicles
and on their way out of the RCMP compound as Cst. Dormuth went to his
vehicle.  Both of those vehicles had their lights activated, and Cst. Dormuth
concluded from this that the situation must be important.  He started to run
towards his vehicle.  He saw that the other officers were going Code 3 meaning,
to him, a trunk activation.

[30]        
Cst. Dormuth proceeded down the driveway past the detachment building.  He
saw the lights on the Munroe police car as it proceeded north on Dogwood but he
did not see Cpl. Herman’s vehicle.  He made his turn onto Dogwood and then
saw the Watkins vehicle.  The Munroe police car was in the curb lane and the
Watkins vehicle was in the inside lane.  The Munroe vehicle was pulling away
from the Watkins vehicle.

[31]        
Cst. Dormuth said he had his lights and siren on and he proceeded to
catch up to the Watkins vehicle.  As he approached the Watkins vehicle, at a
point when he was two or three car lengths behind, it started to go into the
curb or right lane and then went back into the centre or left lane.  The car
travelled perhaps halfway into the curb lane before returning to the centre
lane.

[32]        
They were approaching Pinecrest, a cross-street, so he sat up in his
seat to see if there was any traffic approaching him on Dogwood.  He could not
see any headlights.  He then checked Pinecrest on both sides to see if there
were any headlights.  Pinecrest has stop signs for traffic entering Dogwood.  The
intersection also has pedestrian crosswalk lights and Cst. Dormuth also
checked to ensure these were not activated.  Having confirmed that everything
was clear he then crossed the solid yellow line and went into the southbound
lane.  In other words, he was going against the usual direction of travel by
travelling north in the southbound lane.

[33]        
He said he would never have gone into the northbound curb lane to
pass the Watkins vehicle because they are taught not to.  Since the natural
reaction of drivers is to pull over when they see lights or hear sirens, he has
been trained not to pass on the right and for that reason he never passes on
the right.

[34]        
When he was asked about the Watkins vehicle’s partial change in the curb
lane, he said it went half the width of the vehicle and he did not see a signal,
but he saw a brake light.  He also did not see any signal light on the Watkins
vehicle when he went into the southbound lane to go around it.  He could not
see how fast the Watkins vehicle was going.  He said that he got his car, at
most, to 80 km/h.  He was halfway between the Strathcona Gardens driveway and
Pinecrest Road, perhaps five car lengths away from the Pinecrest intersection,
when he went into the southbound lane.

[35]        
When asked what factors he considered in making his decision to go into
the opposing traffic lane, he said he saw no southbound traffic and no vehicles
on Pinecrest, the pedestrian lights were not on and he had a clear view down
Dogwood.

[36]        
After going into the southbound lane he caught a glimpse of grey and
then there was a bang.  The next thing he knew he was waking up and the inside
of his car was foggy from powder released by the air bag.  He did not remember
applying the brakes and he could not say whether he swerved.  It all happened
very fast.

[37]        
He saw the Watkins vehicle and went to see if the driver was okay.  His
door was pinned shut so he kicked open his passenger side door.  He saw Ms. Watkins
on her side.  She then sat up but seemed dazed and disoriented.  He had to tell
her to turn her stereo down and she did.  He told her to stay still.  He keyed
the microphone on his uniform to get the ambulance and fire department to come.

[38]        
In cross-examination, he agreed that all he knew was that there had been
a bait car activation.  He had no communication with his team because the rules
were that they were to not communicate by radio.  He agreed that he was a
considerable distance behind Cpl. Herman and Cst. Munroe and that no
matter how fast he went he would not be the first one on scene.  He said he
would not have tried to be first; rather, he was just trying to respond.

[39]        
Code 3 means using lights and siren.  Cst. Dormuth did not know if Cpl. Herman
or Cst. Munroe went Code 3 as he did not know if they had their sirens
on.  He only knew they had their lights on.

[40]        
Cst. Dormuth agreed that drivers do not always respond right away to an
approaching police vehicle.  He also agreed that the sirens are
omni-directional in that one cannot tell what direction they are coming from.

[41]        
He also agreed that despite the PowerPoint training materials, the applicable
bait car procedures are set out in an August 15, 2005 document signed by the
officer in charge of the Campbell River detachment (Ex. 7, tab 2).  This
document confirms that the normal response level for bait car dispatches is
Code 2, and not Code 3.

[42]        
Cst. Dormuth said that his training told him that where he encountered
hazards he was to turn away and not necessarily to brake.  Braking can actually
interfere with an evasive manoeuvre.  He would not confirm that Cst. Munroe
passed the Watkins vehicle on the right.  While he agreed that he saw Cst. Munroe
in the curb lane he said he never saw him pass.

[43]        
Cst. Dormuth said that after exiting the detachment driveway he went
into the inside lane, as he always does.  He initially slowed as he approached
the Watkins vehicle, which then did the half lane change and then returned.  He
then checked for oncoming traffic.  He surmised that the driver was not aware
of his presence.  When it was put to him that he had several options, including
slow down and wait, he agreed that slowing down was one of the options.

[44]        
He also agreed that Cpl. Herman and Cst. Munroe were going to be there
first whether he got by the Watkins vehicle or not.  He did not agree that
passing on the right was an option.  He also disagreed that passing on the
right eliminated the hazard he would face by going in the oncoming traffic lane
because, he said, he eliminated that hazard by checking to see if there was any
oncoming traffic.

[45]        
Cst. Dormuth agreed that while he was behind the Watkins vehicle he was
looking ahead for southbound traffic, looking for traffic coming westbound or
eastbound on Pinecrest and making sure that the pedestrian lights were not
activated.  He also agreed that as you approach Pinecrest there is a large concrete
retaining wall on an east-side parking lot that obscures the vision of drivers
on Pinecrest to northbound Dogwood traffic.

[46]        
He agreed that he must have lost consciousness because he does not
remember events for a period of time.  He has no recollection of applying the
brakes or swerving.

C.             
Accident Reconstruction Evidence

[47]        
Both the plaintiff and the defendants presented expert evidence from
experienced accident reconstruction engineers.

[48]        
The plaintiff’s expert, Tim Leggett, had these opinions:

(a)      Cst.
Dormuth’s vehicle was travelling at approximately 69 km/h at the time of
impact;

(b)      Ms. Watkins’
vehicle was travelling at approximately 12 km/h at the time of impact;

(c)      because
Dogwood Street has a substantial downhill grade between the RCMP detachment and
Pinecrest Road, as Cst. Dormuth travelled northbound in the southbound lane his
view of oncoming traffic would have been obstructed until the last second prior
to the impact.

[49]        
Mr. Leggett noted that the police vehicle was fitted with a Power
Control Module (PCM), a device which records certain data and which, in this
case, would have provided speed and accelerator position for the 20 seconds
prior to the accident.  Unfortunately, it appears this data may not have been
retrieved from the vehicle’s PCM, despite the fact that the RCMP apparently
investigated this accident using their own collision analysts.  Exactly what
happened to the PCM or its data is unknown; all Mr. Leggett could say is that
the PCM data was not provided to him or to the defence expert, Mr. Cliff.

[50]        
There was no explanation offered by the defendants for the absence of
this potentially helpful data.

[51]        
The defence expert, William Cliff, had the following opinions:

(a)      at the
moment of impact the likely speed of the RCMP vehicle was 70 to 75 km/h;

(b)      at the
moment of impact the Watkins vehicle was travelling at a speed between 14 to 18
km/h;

(c)      there
is a calculable range for the avoidance time that would have been available to
Cst. Dormuth.  At the upper end of the available avoidance time there
should have been some time for the driver of the RCMP vehicle to brake or
swerve before impact, but at the lower end there would have been very little
time to avoid the accident;

(d)      it is
possible the RCMP vehicle swerved before impact;

(e)      even
though oncoming vehicles would be momentarily hidden to
Cst. Dormuth by the hill on Dogwood, once those vehicles became visible
there would have been enough time for Cst. Dormuth to have re-entered the proper
northbound lane.

[52]        
The experts were largely in agreement on the location of the vehicles on
impact.  The Watkins vehicle was well into the curb lane of the two southbound lanes
(the far lane in terms of turning) and the RCMP vehicle was fully in that lane,
as shown in the diagram attached as Schedule A to these reasons.

[53]        
The points of disagreement between the experts centred on the angle of
collision, the speed of the Watkins vehicle and the opportunity available to Cst. Dormuth
to avoid the collision.  Essentially, Mr. Leggett concluded that the angle
of collision was 86 degrees
(that is, nearly perpendicular), whereas Mr. Cliff felt the angle was 70
degrees.  These differing opinions have a consequential effect on the amount of
time the experts calculate would have been available to Cst. Dormuth to detect
a hazard and take evasive action.

D.             
Submissions on Liability

[54]        
The plaintiff submits that Cst. Dormuth was entirely responsible for the
accident.  He should not have been driving Code 3 because neither law nor RCMP
policy called for it.  In any event, as Cst. Dormuth’s car was the third
of four police vehicles responding to the bait car call there was no need for
urgency.  Cst. Dormuth had safer alternatives available to him (waiting for
Ms. Watkins to detect him, or passing in the right-hand lane as Cst. Munroe
did), yet he took the most hazardous option available to him.  He was negligent
by speeding, by passing in an oncoming lane in a dense municipal area, by
passing at an intersection, by passing at an intersection with a dividing
median, by passing on a blind hill and by passing when he knew Ms. Watkins
was unaware of his presence.

[55]        
The defendants submit that Ms. Watkins was negligent in failing to
yield to an emergency vehicle that was using its emergency lights and siren and
that she was negligent in turning left without signalling her turn.  Her
manoeuvre left Cst. Dormuth with no opportunity to avoid the collision.

[56]        
The defendants submit further that the Emergency Vehicle Driving
Regulation, B.C. Reg. 133/98, entitled Cst. Dormuth to exercise the
privileges granted by s. 122 of the Motor Vehicle Act, R.S.B.C,
1996, c. 318, which allow police officers to depart from or disobey the
ordinary rules of the road.

E.             
Discussion of Liability

[57]        
Certain facts are uncontroversial.  Around 6 a.m. on March 4, 2007 Ms. Watkins
was driving to work, proceeding north on Dogwood Street at 50 km/h.  As she
approached the RCMP detachment, a police car with its lights on exited the
driveway and proceeded north.  She changed lanes from the right-hand lane to
the left-hand lane, anticipating her usual left turn that was coming up.  A
second police car, also with its lights on, then passed her on the right.  Neither
of the first two police cars had sirens on.

[58]        
Because there was obviously some sort of incident up ahead Ms. Watkins
decided to turn left onto Pinecrest Road instead of turning left at Evergreen
Road, about two blocks further on, which was her usual route.  Whether she
signalled her turn is a matter of dispute and so I will discuss this later.  At
this point her attention was on the police cars ahead of her and on checking
for oncoming traffic in anticipation of her left turn.  She also had her radio
or car stereo on.

[59]        
Cst. Dormuth pulled out of the RCMP driveway with his lights and siren
on.  Ahead, he saw the Watkins vehicle in the left lane and the Munroe police
car in the right lane, pulling away from her.  We do not know Cst. Dormuth’s
speed with certainty, but he said it was, at most, 80 km/h.  Given the fairly
short distance between the RCMP driveway and the point by which he closed in on
the Watkins vehicle, I conclude that Cst. Dormuth accelerated quickly
after he exited the driveway.

[60]        
I also conclude that after catching up to the Watkins vehicle Cst. Dormuth
was behind it for only a brief moment.  I base this conclusion on (1) Cst. Pallan’s
account, which I find to be accurate and reliable.  He said Cst. Dormuth
came up to the Watkins vehicle, braked slightly, then went into the southbound
lane; and (2) the evidence of the speed of the Cst. Dormuth’s police car
(estimated by Cst. Dormuth to be 80 km/h at maximum) combined with the
short distance it travelled from the detachment driveway to the point it went
into the oncoming lane.  To expand on the latter point, the distance from the
driveway to the Pinecrest intersection is 158 metres, but Cst. Dormuth
said he moved into the oncoming lane about halfway between the Strathcona
Gardens driveway and the intersection.  The scene diagram (Ex. 10) suggests that
this would be a distance of about 40 to 45 metres from the intersection. 
Cst. Dormuth would therefore have travelled a distance of about 113 to 118
metres on Dogwood Street before he moved into the oncoming lane.  Given his
speed he could only have been behind the Watkins vehicle a minimal amount of
time.

[61]        
The plaintiff urged the Court to find that Cst. Dormuth’s speed was 90
to 95 km/h based on Mr. Cliff’s calculated impact speed between 70 and 75
km/h (down from 80 km/h, which the plaintiff suggests shows the officer must
have braked at some point).  Mr. Cliff agreed that the speed could have
been 90 to 95 km/h assuming there was braking for 1.3 seconds prior to
impact.  The plaintiff submits that such a speed would explain why Cst. Dormuth
failed to see both the turn signal and the brake lights on the Watkins vehicle (braking
being necessary for Ms. Watkins to have carried out her left turn) and
would explain why he was unable to take measures to avoid the collision.

[62]        
I am unable to draw that conclusion.  First of all, there is no
testimony that Cst. Dormuth braked immediately before impact.  The
evidence shows Cst. Dormuth accelerated once he was on Dogwood Street,
slowed as he approached the Watkins vehicle and then accelerated to pass.  If he
braked immediately before impact this would have to be inferred from other
evidence.  I conclude that the evidence is simply not precise enough to warrant
drawing that inference, and there are too many variables.  Although the
plaintiff says a change of speed from 80 km/h to the impact speed of either 69
km/h (per Mr. Leggett) or between 70 and 75 km/h (per Mr. Cliff)
means Cst. Dormuth must have braked, it is not clear, for example, exactly
where in his short journey that Cst. Dormuth was travelling at 80 km/h.

[63]        
 I return to the sequence of events.  Ms. Watkins turned left.  As
the diagram shows (a diagram both experts agreed accurately depicts the
location where the impact occurred), Ms. Watkins had completed a
substantial portion of her turn before her car was struck by the RCMP cruiser.

[64]        
Cst. Dormuth did not know whether he braked or swerved.  Based on the impact
location, I conclude that Cst. Pallan’s observation is accurate insofar as
he said Cst. Dormuth attempted to go as far left as he could but there
came a point when the collision could not be avoided.

[65]        
I now turn to some of the more controversial issues.

(a)      The Turn Signal

[66]        
Ms. Watkins said she activated her turn signal.  Cst. Dormuth
said he saw no signal.  Cst. Pallan, travelling behind Cst. Dormuth,
was unable to help on this point because Cst. Dormuth’s vehicle obstructed
his view of the tail and brake lights of the Watkins vehicle.

[67]        
I conclude that it is more probable than not that Ms. Watkins
activated her turn signal because: (1) in her direct examination she said she
did (though in cross-examination she conceded she did not have a “100%
recollection” of it).  I found Ms. Watkins to be a truthful and credible
witness; and (2) Cst. Dormuth was scanning a lot of different places in an
extremely short period of time as he approached the Pinecrest intersection.  In
preparing to pass the Watkins vehicle on the left, he said he scanned the road
ahead for any approaching cars, he checked Pinecrest on both sides for any
headlights, and he checked the pedestrian crosswalk light, all while coming up
on the plaintiff’s vehicle.  Certainly his primary attention was not on the
Watkins vehicle at that point.

[68]        
The plaintiff submitted that since Ms. Watkins must have braked to
slow her vehicle in preparation for her left turn, Cst. Dormuth’s failure
to see brake lights on the Watkins vehicle shows he was paying no attention to
any rear lights, including her turn signal.  However, I am not satisfied that Ms. Watkins
must have braked.  In her testimony she said only that she slowed down
and geared down.  No mention was made of braking.  Slowing down and changing
into a lower gear may have provided the necessary deceleration to carry out the
turn without braking.

[69]        
I note, in any event, that because the allegation of failing to signal a
turn is an allegation that Ms. Watkins was contributorily negligent, the
burden of proving that lies with the defendants.  I find that they failed to
discharge that burden.

(b)      The Partial Lane Change

[70]        
Cst. Dormuth testified that as he approached the Watkins vehicle it
moved halfway into the curb lane then returned to the left lane.  It is
difficult to know what to make of this evidence.  It does not appear to have
been put to Ms. Watkins in cross-examination.  She had no reason to change
lanes (other than, perhaps, generally poor driving, which the defendants did
not allege) since she was unaware of Cst. Dormuth’s police car behind her;
moreover, she needed to be in the left lane to make her intended left turn.

[71]        
Cst. Pallan did not mention any manoeuvre of that sort despite his
relatively thorough description of the movements of both vehicles that were
ahead of him.

[72]        
I note that, if anything, movements of the type described should have
put Cst. Dormuth on heightened alert to be wary of the Watkins vehicle. 
As it stands, however, I am unable to accept Cst. Dormuth’s evidence that
the Watkins vehicle carried out a partial lane change before it turned left.

(c)      Opportunity to Avoid the
Collision

[73]        
This subject occupied a great deal of the engineers’ time, both in their
reports and at trial.  As impressive as their respective expert analyses were,
I find that it is not possible to determine with a sufficient degree of
confidence whether Cst. Dormuth had the opportunity to take braking or evasive
action and prevent the collision once he had committed to passing the Watkins
vehicle on the left.  Crucial facts are unknown (most importantly, the
pre-impact speed of the police car) and this makes the variables too great.  I
appreciate that Mr. Leggett, in particular, relied on the maximum speed of
80 km/h stated by Cst. Dormuth, and from this assertion as well as other
facts and assumptions he concluded that Cst. Dormuth should have had time
to stop or avoid the collision.  However, I simply do not accept that
Cst. Dormuth’s estimate of his maximum speed, a speed that was not linked
to any particular stage of his short journey, is a sufficiently accurate figure
on which to base the various calculations that flowed from it.

[74]        
As a result, I find that the plaintiff has not shown Cst. Dormuth
could have avoided the collision by braking or evasive action once he had
committed to passing the Watkins vehicle.

(d)      The Emergency Vehicle
Issue

[75]        
Several statutory provisions relate to this issue.  In summary, s. 122
of the Motor Vehicle Act grants certain privileges to drivers of
emergency vehicles, provided they are exercised:

a)    with due regard
for safety [s. 122(4)]; and

b)    in accordance
with the Emergency Vehicle Driving Regulation, B.C. Reg. 133/98 [s.
122(2)].

[76]        
The full version of s. 122 of the Motor Vehicle Act reads as
follows:

122  (1) Despite anything in this Part, but subject to
subsections (2) and (4), a driver of an emergency vehicle may do the following:

(a) exceed the speed limit;

(b) proceed past a red traffic
control signal or stop sign without stopping;

(c) disregard rules and traffic
control devices governing direction of movement or turning in specified
directions;

(d) stop or stand.

(2) The driver of an emergency vehicle must not exercise the
privileges granted by subsection (1) except in accordance with the regulations.

(3) [Repealed 1997-30-2.]

(4) The driver of an emergency vehicle exercising a privilege
granted by subsection (1) must drive with due regard for safety, having regard
to all the circumstances of the case, including the following:

(a) the nature, condition and use
of the highway;

(b) the amount of traffic that is
on, or might reasonably be expected to be on, the highway;

(c) the nature of the use being
made of the emergency vehicle at the time.

[77]        
The following are the applicable provisions of the Emergency Vehicle
Driving Regulation:

4 (1)  A peace officer operating an emergency vehicle for
purposes other than pursuit may exercise the privileges granted by section 122
(1) of the Motor Vehicle Act if

(a) the peace officer has
reasonable grounds to believe that the risk of harm to members of the public
from the exercise of those privileges is less than the risk of harm to members
of the public should those privileges not be exercised, and

(b) the peace officer operates the
following emergency equipment, as applicable:

(i)  in the exercise of privileges
described in section 122 (1) (a) to (c) of the Motor Vehicle Act, an
emergency light and siren;

(ii)  in the exercise of privileges
described in section 122 (1) (d) of the Motor Vehicle Act, an emergency
light or an emergency light and siren.

(2)  Having determined that there are reasonable grounds
referred to in subsection (1) (a), the peace officer referred to in subsection
(1) may, in the following circumstances, exercise any of the privileges granted
by section 122 (1) of the Motor Vehicle Act without operating an
emergency light and siren or by operating an emergency light alone:

(a) the peace officer is responding
to an incident and has reasonable grounds to believe that an offence has been,
is being or is about to be committed and that the risk of harm to members of
the public entailed in operating an emergency siren or an emergency light and
siren, as the case may be, outweighs the risk of harm to members of the public
entailed in not operating them;

(b) the peace officer is engaged in
the lawful execution of his or her duty other than as described in paragraph
(a) or section 3 and has reasonable grounds to believe that it is safe to
operate the emergency vehicle without operating an emergency siren or an
emergency light and siren, as the case may be.

(3)  In considering whether there are reasonable grounds
under subsection (1), (2) or (5) a peace officer must

(a) consider the factors described
in section 3 (2), and

(b) weigh the degree of risk of
harm to members of the public against the seriousness of the nature and
circumstances of the suspected offence or incident.

(4)  Subsection (2) does not apply if the peace officer must
disregard a stop sign or approach or pass signs described in section 147 of the
Motor Vehicle Act relating to schools and playgrounds.

(5)  A peace officer operating an emergency vehicle in the
circumstances set out in subsection (2) must stop at a red light and may then
disregard the red light and proceed through the intersection if the peace
officer has reasonable grounds to believe it is safe to do so without operating
relevant emergency equipment.

(6)  Factors which will increase the risk of harm to members
of the public for purposes of subsections (1), (2) and (5) include

(a) attempting to close the
distance between a peace officer’s vehicle and another vehicle,

(b) if there is poor visibility,

(c) if there is pedestrian or other
vehicular traffic on the highway, and

(d) if the peace officer must
disregard a yield sign or pass through a crosswalk or uncontrolled
intersection.

(7)  For the purposes of subsection (2), the greater the
distance, speed or length of time required or likely to be required in
exercising the privileges granted by section 122 (1) of the Motor Vehicle
Act, the greater the risk to the safety of members of the public.

(8)  For the purposes of
subsection (2), the risk of harm to members of the public must be considered to
be substantially increased when a peace officer is attempting to close the
distance if the other vehicle is not in the sight of the peace officer.

[78]        
The provisions show there are certain prerequisites that must be met
before a police officer may exercise the privileges set out in s. 122 of
the Motor Vehicle Act.  In particular, the police officer must have reasonable
grounds to believe that the risk of harm to members of the public from the
exercise of those privileges is less than the risk of harm to the public should
those privileges not be exercised.  Even where the prerequisites are met, the
driving privileges afforded by the Motor Vehicle Act must be exercised
with due regard for safety, having regard to certain factors.

[79]        
I conclude that Cst. Dormuth did not have reasonable grounds to believe
that the risk of harm to the public from exercising emergency vehicle
privileges was less than the risk to the public should he not exercise those
privileges.  All he knew was that there had been a bait car activation.  An
activation did not mean that there was a risk of harm to the public because an
activation signal could be caused by the mere opening of the bait car door or
trunk.  It did not necessarily mean the car was being driven, let alone driven
in a manner dangerous to the public.

[80]        
This conclusion is consistent with the detachment’s bait car policy,
which provides that the normal response level to a bait car activation is Code
2, that is, by proceeding immediately but without using lights or siren.  In
other words, the detachment’s own policy recognizes that a bait car activation
is a non-emergency event.

[81]        
The defendants assert that Cst. Dormuth was not negligent in
responding at a Code 3 level because that is how he had been trained, erroneous
as it was.  However, I do not see that this absolves the defendants of
liability since it is plain that the training given to Cst. Dormuth was
faulty.

(e)      The Obligation to Yield
to an Emergency Vehicle

[82]        
Section 177 of the Motor Vehicle Act requires drivers to yield to
an emergency vehicle that is operating both emergency lights and a siren.  It
reads as follows:

177  On the immediate approach of
an emergency vehicle giving an audible signal by a bell, siren or exhaust
whistle, and showing a visible flashing red light, except when otherwise
directed by a peace officer, a driver must yield the right of way, and
immediately drive to a position parallel to and as close as possible to the
nearest edge or curb of the roadway, clear of an intersection, and stop and
remain in that position until the emergency vehicle has passed.

[83]        
The defendants submit that Ms. Watkins breached s. 177 because
she failed to pull over despite the operating lights and siren of Cst. Dormuth’s
police car.  They rely in particular on two cases: Gropp v. R., 1997
CanLII 2881 (B.C.S.C.) [Gropp] and Frers v. De Moulin, 2002 BCSC
408 [Frers].

[84]        
 In Gropp a left-turning driver was found 100% responsible where
an ambulance passing on the left collided with his vehicle.  The ambulance was
attempting to pass by proceeding in the lane for opposing traffic.  In Frers
liability was divided 60-40 between the plaintiff, a motorcycle police officer,
who was making his way through a busy urban intersection with lights and siren
operating, and the defendant driver of a van who was approaching from the right
with a green light in his direction.

[85]        
These cases turn on their facts.  In Gropp the left-turning
driver was approaching an intersection where an accident had occurred.  Up
ahead, he could see police, ambulance and fire emergency vehicles at the
accident site and so he turned left in an effort to avoid the traffic jam.  The
evidence referred to in the reasons for judgment suggests that the left turn
was made abruptly.  There was conflicting evidence whether the plaintiff
activated his left-turn signal, and the trial judge made no finding on that
point.  Other vehicles had pulled over for the defendant’s ambulance, thus
evidencing that they heard the siren or saw the emergency lights, or both, but
the plaintiff neither heard the siren nor saw the emergency lights.  The
principal issue discussed in the reasons was the speed of the ambulance, and
the trial judge determined that the ambulance driver was not proceeding at an excessive
speed.  He concluded that the sole cause of the accident was the plaintiff’s
failure to see and hear the ambulance.

[86]        
In Frers the motorcycle police officer proceeded across a busy
intersection against a red light, with his lights and siren activated.  He
proceeded slowly, at times at a walking pace, with the trial judge (L. Smith
J.) determining that he was in the intersection with siren and lights activated
for at least 12 seconds.  Smith J. found that the motorcycle’s siren was
“capable of a high volume of sound and that it was heard by many of the drivers
on the road” (para. 90), though there were some who did not hear it or see
the motorcycle’s emergency lights.  She also found that two lines of traffic
coming from the officer’s right had stopped for at least five seconds as the
defendant continued to drive in his lane (the two stopped lanes of traffic were
to the defendant’s left).  Smith J. concluded that the defendant ought to have
been alerted to the hazard by the stopped traffic to his left.  She found the
plaintiff contributorily negligent because, although he had the right of way by
reason of s. 177 of the Motor Vehicle Act, he nonetheless failed to
consider that not all drivers will hear the siren or see the emergency lights
and that even those that do may take time to react.

[87]        
Smith J. said:

[118]  … Although I have found
that the siren signal was audible for the purpose of determining whether the
plaintiff fell under s. 177 of the Motor Vehicle Act, it does not follow
that all drivers, at any distance, or under any conditions, should be assumed
to have heard that siren. The plaintiff was aware or should have been aware, as
a trained and experienced police officer, that: (a) it takes time for drivers
to react to sirens and to identify accurately the direction from which they are
coming; (b) heavy traffic may create a sound barrier; (c) lights, particularly
the blue lights on the right side of the vehicle, are not particularly
conspicuous in daylight; and (d) drivers may be employing air conditioning and
have their radios on. While having the right of way, the plaintiff still had to
exercise due care.

[88]        
Although both Gropp and Frers are similar in a broad sense
because both arose from collisions involving emergency vehicles, the case at
bar has important distinguishing features.  Cst. Dormuth’s police car was close
to the Watkins vehicle only very briefly, and not for a time that is comparable
to the 12 seconds the police officer in Frers was in the intersection
with his siren sounding and emergency lights flashing.  Perhaps more
importantly, not only was Cst. Dormuth aware that drivers might not
respond right away to an approaching emergency vehicle, he actually formed the conclusion
that Ms. Watkins had not detected his presence.  This, too, distinguishes
this case from both Gropp and Frers.  As a final distinguishing
feature, in both Gropp and Frers other vehicles had pulled over
in response to the approaching emergency vehicle, a circumstance that should
have alerted the civilian driver to its presence.  That element is absent from
the present case.

[89]        
The duty imposed by s. 177 of the Motor Vehicle Act to yield
to an emergency vehicle is not absolute.  A driver must have time to perceive
and react.  Here, Ms. Watkins did not perceive the police car behind her
and so she did not react.  The defendants say she ought to have perceived it. 
I am not convinced of this because Cst. Dormuth’s police car was behind
her for only a short period of time.  The defendants have not shown that this
time was long enough that a reasonably alert driver would have perceived the
lights and sirens of the Dormuth police car and pulled over, particularly given
the following circumstances:

(a)      the Munroe police car had
only just passed her, with its emergency lights (but not siren) on.  This may
have delayed Ms. Watkins’ ability to perceive another set of emergency
lights behind her; and

(b)      Ms. Watkins had her
car radio or stereo on.  This may have delayed her ability to hear the siren
but I am unable to conclude that having the car stereo on was negligent in the
circumstances.  I am also not satisfied that it was playing at an unusually
loud volume, which the defendants alleged (or at least suggested) but which I
find to be unproven.

[90]        
As for Cst. Dormuth:

(a)      the
only information he had about the dispatch was that it was a bait car
activation.  He had no information on which he could conclude there was a risk
of harm to the public;

(b)      having
logged off from his laptop or work station he was not in a position to obtain
further information about the dispatch, and he knew information would not be
conveyed by radio;

(c)      he
conceded he did not know whether Cpl. Herman and Cst. Munroe were responding on
a Code 3 basis because he did not know whether they had their sirens on;

(d)      he
accelerated from the detachment driveway and came up quickly on the Watkins
vehicle;

(e)      by his
own admission his speed was as much as 80 km/h in a 50 km/h zone;

(f)       he
surmised or concluded that Ms. Watkins had not detected his presence;

(g)      he
moved into the lane of oncoming traffic after only a minimal amount of time
spent immediately behind the Watkins vehicle; and

(h)      he did
not see her left-turn signal.

[91]        
Despite his conclusion that Ms. Watkins had not detected his
presence, Cst. Dormuth chose the option that created the very risk that
materialized: a high-speed collision as he attempted to pass the Watkins vehicle
by going in the oncoming lane of traffic.

[92]        
Cst. Dormuth had the much safer option of staying behind the Watkins
vehicle for a longer time so as to allow Ms. Watkins to perceive him and
pull over.  In any event, even if Ms. Watkins ought to have detected the
lights and sirens of the police car this does not mean that Cst. Dormuth
was forced to take the risky action he did.

[93]        
I agree with the observation of Cst. Pallan that Cst. Dormuth’s move was
aggressive.  I also find it to be unnecessarily aggressive given the nature of
the dispatch (not involving harm to the public, so far as was known), Cst. Dormuth
being unaware whether the first two police cars were proceeding Code 3, and the
fact that two police cars were already ahead of him.  He simply had no need to
pass the Watkins vehicle as he did.

[94]        
The plaintiff referred to Cst. Dormuth passing the Watkins vehicle on a
blind hill and at an intersection with a partial divider.  She submits that
these showed negligence on his part.  As these matters played no part in
causing the accident I consider them largely irrelevant except to illustrate
the aggressiveness of Cst. Dormuth’s attempt to pass.

[95]        
Emergency vehicles do not have free rein in exercising the driving
privileges accorded by s. 122 of the Motor Vehicle Act.  They may
only do so within the limits set by the Emergency Driving Regulation and
they are constrained by the duty to drive with due regard for safety: Frers,
at para. 89.  I conclude that Cst. Dormuth had no basis to exercise
any emergency vehicle driving privileges, and I conclude that in exercising
those privileges he did not drive with due regard for safety in the circumstances
of this case.

[96]        
For these reasons I conclude that the responsibility for this accident
rests entirely with the defendants.

III.            
Damages

A.             
Witnesses

(a)      Erika Watkins

[97]        
Ms. Watkins was 27 years old at the time of the accident and 32 at
the time of trial.  She married David Vey in June 2008, 15 months after the
subject car accident.  Mr. Vey was 46 years old at trial.  He has two
children from a previous relationship, aged 18 and 16.  Prior to the accident Ms. Watkins
did not plan to have children.

[98]        
At the time of the accident Ms. Watkins was working full-time at
the Elk Falls mill as an operator on newsprint machines.  She was also working
to complete a bachelor of science degree on a part-time basis.  Her employer
was paying for her continuing education, and there was the potential for her to
move into a staff position at the mill.  She obtained an Associate of Science
degree from North Island College and required two more years to obtain a
bachelor’s degree.

[99]        
Ms. Watkins was fit and healthy prior to the accident.  In high
school she played soccer, volleyball and basketball, and after high school
played hockey and soccer.  She skied regularly at Mount Washington, having an annual
ski pass, and enjoyed fishing.  The hockey was recreational league level, but
soccer was at a competitive level, her teams competing at the Provincial level
both in high school and in her women’s league.  She considered herself to be
mid-level in terms of ability on her team.

[100]     Ms. Watkins
was an avid skier, going at least 20 times each season for the five years prior
to the accident.  She considered herself an advanced, indeed an aggressive,
skier, well able to ski black diamond and double black diamond runs.

[101]     Ms. Watkins
also enjoyed salmon fishing, which she did both in the Campbell River and Gold
River areas.  She had her own boat.  Sometimes she went with Mr. Vey and
sometimes she went with co-workers.

[102]     Ms. Watkins
described the work and working environment on the newsprint machines.  She
described it as a high hazard mill environment.  She said there were 19 people
in a line of progression on each of the three newsprint machines starting with
6th hand and progressing to 5th hand, 4th hand, winderman, back tender and
machine tender.  At the time of the accident she was just starting a position
as 4th hand on one of the machines.

[103]     Ms. Watkins
also described her other employment.  During high school she worked at a tree
nursery, at a saw mill (full-time in summers) and for contractor, Gregson &
Sons, and another contractor, Magnum Restorations.  At Gregson & Sons her
supervisor was Randy Jenkins, who later formed a project management company,
Magnum Restorations.

[104]     At Gregson
& Sons she did various tasks, including first aid relief, surveying and
grading, running a weigh scale for trucks and operating a Bowmag roller.  At
Magnum Restorations she “did a little bit of everything”:  she was a site
safety coordinator, did accounts receivable and accounts payable, answered the
phones and assisted with grading and asphalt laying.  She also did some
flagging, used a spreadsheet program to keep track of loads and sub-contractors
time sheets and other tasks.  She left that position because the contract in
question came to an end.

[105]     Ms. Watkins
had no recollection of events after commencing her left turn on Dogwood
Street.  Her next memory was in hospital.  After her stay in hospital she
stayed with her mother for perhaps a couple of days, and thereafter went to
live with Mr. Vey.  They had not been living together prior to the
accident.

[106]     Her
initial complaints were sore neck, back, left arm and head.  A wound to her
head required stitches and glass was removed.  Ms. Watkins said that there
is still a scar there, but it does not cause her concern.  Her biggest problem
was that “the world didn’t make a lot of sense”; she felt confused, like she
was impaired.  Her mother was instructed to follow a head injury protocol and not
to allow Ms. Watkins to sleep.

[107]     Ms. Watkins
said that her low back bothered her considerably, and it caused sciatica in her
left foot such that she lost feeling in it.  Her neck pain was “terrible”,
running down both sides of the neck down to her shoulders.

[108]     A year
after the accident she was still having pain in her neck and shoulders and
still undergoing physiotherapy.  She took anti-inflammatory medication to ease
the symptoms.  Her lower back and sciatica still bothered her.

[109]     At the
date of trial, five years after the accident, she has ongoing problems with her
neck and shoulders.  She said that it is “tight” and can be painful.  She does
not have her former range of motion and cannot do all of the range of motion
exercises.  Pain in her neck and shoulders can be brought on by sporting
activities, vacuuming, yard work or working on the computer.  She either cannot
do these activities or has to modify the way she carries them out.

[110]     When asked
about her back pain and sciatica, Ms. Watkins said she now only notices it
when she tries to sleep on one side.  She described it as more of a nuisance. 
It has been more than a year since she has had a problem with pain down to her
knee.

[111]     The most
significant problems for Ms. Watkins relate to her head injury and the
continuing symptoms she has because of it.  She said it impacts everything she
does in her daily life.  If there is a noise it interrupts the flow of what she
is doing by distracting her.  Distractibility is a big issue.  If it happens in
a class, she finds such minor things as clicking pens and sneezing distracting
to the point that she finds it difficult to focus on the instructor.  The
university has accommodated her by allowing her to take tests in a private room
and obtaining notes in advance.  She also gets extra time for class work
assignments and tests, approximately 50% more than usual.

[112]     The
problems with distractibility also arise in her activities of daily living. 
She is reliant on Mr. Vey for meal preparation.  She gave the example of
making a sandwich.  If the phone rings she will then see that her nails need
cutting, she’ll go to her bedroom, clean up the room, go downstairs and the
sandwich that she began to make will go unmade.  She has found no change in
this condition for the last two years, although there was improvement from the
time of the accident up to perhaps early 2011.  This coincided with the
completion of a neurological outpatient program at Victoria General Hospital at
the end of 2010.

[113]     When asked
if her distractibility would allow her to work at the mill, she said “no”.

[114]     Ms. Watkins
said that she attempted a return to playing soccer after the accident.  In fall
2007 she played goal for her team but because her team was very good she did
not see much action.  She quit for a time because she did not want to play in
goal, but she went back after taking some time away.  She then had only limited
playing time and gave the game up entirely effective March 2011.

[115]     Soccer
typically involved a social aspect with her team, as they typically socialized
at a pub after games and practices.  After the accident she found this very
difficult because she could not keep up with multiple people talking. 
Post-accident, she would go to the pub and have a quick visit after perhaps an
hour.  Formerly she was much more social and stayed for the duration.

[116]     Ms. Watkins
has taken up hockey again, but she said that she did not feel the same as she
did before.  She also noted that the level of play was fairly non-competitive,
being at a house team or intramural level.

[117]     Her
fishing activities have been curtailed considerably.  She no longer fishes on
the west coast, where there are ocean swells, and she does not want to tow a
boat over logging roads or sleep in a tent, as she did before.  She has been
fishing locally when it is sunny and calm.

[118]     She has
been skiing a couple of times after the accident but does not ski at the level
she used to.  The runs she skis are safer, and she goes slowly and takes
frequent breaks.

[119]     Ms. Watkins
talked about golf.  Formerly she used to play a lot and would even travel to do
so.  Now she is happy if she is able to play nine holes.  If she had to play 18
holes she would rent a cart.  She finds that her friends do not want to play 18
holes with her because she just falls apart.

[120]     Ms. Watkins
described other effects of the accident on her activities of daily living. 
Prior to the accident she had her own three bedroom duplex, and she did all her
own cooking and cleaning and outside yard work.  She now lives with Mr. Vey
in a two storey house and is only able to “just contribute”.  Now she doesn’t
cook, although she acknowledges that Mr. Vey is a better cook.  She finds
that post-accident the timing is very difficult for her and she is unable to
time things while cooking: “I can’t get everything cooking at once”.  She does
some cleaning, but Mr. Vey does most of it.  She can do the laundry, but she
might forget to put the clothes in the dryer.  She does not vacuum the stairs
because there is too much lifting involved.  As for yard work, she can do the
front and backyard but has to do them on separate days.

[121]     Ms. Watkins
testified that she avoids entertaining at her house because she is the first
person to get tired.  She prefers to go to other’s houses to visit.  They have
held parties on occasion, but she finds herself worrying about what people are
doing and if they are making a mess.  Her concern about this has the appearance
of being obsessive.

[122]     Ms. Watkins
also discussed her relationship with Mr. Vey’s children, her
step-children.  She said that they had a relationship prior to the accident but
now they do not.  Prior to the accident the children came to the house for
overnight access visits, which tended to be on Mr. Vey’s four days off. 
After the accident Ms. Watkins found the children’s bickering or wanting
to phone their mother too much to handle, so the children’s overnight visits
ceased.  Mr. Vey then exercised his access to the children outside their
home.

[123]     Ms. Watkins
also testified that the accident affected her approach to driving and being in
the car as a passenger.  After the accident and after her vehicle was replaced,
she only drove locally, preferring daylight conditions and not if there were
any adverse conditions.  Now she is able to travel to Victoria to attend
classes.  She continues to avoid being a passenger in the car if at all
possible.

[124]     As for
educational goals, Ms. Watkins said that her current goal is to obtain her
BSc, but she has no goal beyond that.  As for current work goals, she said that
she did not have any because none of the consultants indicated what she should
do for work.  Prior to the accident, she noted that she was employed at the
pulp mill, her employer paid for her post-secondary studies, which offered the
possibility of the move to a staff position, but she had no employment goals
beyond that.

[125]     The Elk
Falls mill shut down in early 2009.  But for the injuries she suffered in the
car accident, Ms. Watkins said she would either have gone to work in
northern Alberta, as many of her colleagues did, or she would have contacted
former employees like Mr. Jenkins.  More than 20 of her colleagues found
employment in northern Alberta, and these colleagues all had similar
qualifications and worked in the same area.

[126]     Ms. Watkins
undertook post-secondary studies prior to the accident.  She took courses at
North Island College from 2000 to 2004.  She studied full-time at North Island
College in 2002.  She continued studies at North Island College on a somewhat
less intensive basis in 2003 and 2004.  She then started employment at the Elk
Falls mill, and thereafter worked at the mill on weekends and on graveyard
shifts while going to school.

[127]     In 2005
she took courses at Camosun College in Victoria while holding down full-time
employment at the Elk Falls mill.  She passed four courses and failed three. 
She resumed studies on a limited basis in 2007, and in 2009 she enrolled at the
University of Victoria, taking a variety of chemistry courses.  Her progress
has been slow: by the time of trial, three years after commencing studies at
the University of Victoria, she had not yet completed two years’ worth of
course work.  She said that she had completed less than 50% of her courses.

[128]     Originally
her intention was to get into a nursing program but she never pursued this as
she decided that she enjoyed chemistry.  She said that her attempt to take
university courses full-time and to also work full-time did not work out very
well for her.

[129]     In
cross-examination, Ms. Watkins acknowledged that some of her pre-accident
marks were poor.  She also acknowledged being under the care of a psychologist
in late 2004 to January 2005, due to a relationship break-up and difficulties
associated with living in Victoria and maintaining full-time work in Campbell
River.  Although she did not recall the particulars, she also recalled that
there was a conflict situation at work.  Her psychologist recommended she be
put on medical leave and she took two weeks off work.  Ms. Watkins also
acknowledged that in March 2005 she consulted her doctor about her moods, and
she was put on a trial of antidepressants for two weeks.

[130]     Ms. Watkins
acknowledged that there were two mill layoffs, the first being the kraft mill
in November 2008.  The workers from the kraft mill bumped other workers
according to seniority.  She acknowledged that it was possible that she would
have been bumped by a more senior worker had she still been working at the
mill.  The mill closed entirely in February 2009.

[131]     Ms. Watkins
acknowledged that Mr. Vey was away for two months in summer 2008 and
during that time she looked after herself.  She said however that she had
gardening help.

(b)      David Vey

[132]     Mr. Vey
also worked at the pulp mill.  He started at the mill in February 1993 by working
on the “spare board”, a system for casual employees.  He was on the spare board
for a couple of years.  He then went into the paper machine pool and started
with the paper machine line of progression, commencing or around 1997. 
Laterally, he worked as 4th hand on paper machine no. 2, which was the largest
of the three machines.  He also has industrial first aid, Hazmat and
firefighting qualifications.

[133]     When asked
about the working environment at the mill, Mr. Vey said that the paper
machines are loud and complex.  There is a constant roar of machinery, sirens
going off and flashing lights.  The paper machines themselves are enormous,
being 100 metres long and 40 feet high.

[134]     Mr. Vey
met Ms. Watkins in 2005 when she started on the paper machines.  As with
most employees, she started on the spare board.  He said that Ms. Watkins
was a good worker.  She was smart and she tried very hard to work as any man,
and did.

[135]     They began
a relationship a little over two months prior to the accident.  They had formed
no plans to live together by that point.  Ms. Watkins had a rented house
of her own and he owned his own home.

[136]     Mr. Vey
saw his children on his days off and Ms. Watkins joined them.  She
interacted well with them and the children seemed to respect and like her.

[137]     Mr. Vey
confirmed Ms. Watkins’ pre-accident sporting activities, those being
soccer, hockey, golf, skiing and fishing.  Mr. Vey described himself as an
expert skier and said that while Ms. Watkins was not as good a skier as he
was, she was still an aggressive advanced or intermediate skier.

[138]     In the
months leading up to the accident there were occasions when Mr. Vey
attended some post-game pub events with Ms. Watkins’ sports teams.  He
confirmed that Ms. Watkins was an active participant in the conversations.

[139]     Mr. Vey
was notified of the accident while he was at work.  He attended at the hospital
and saw Ms. Watkins in the emergency department.  She was confused and
distraught.  She suffered a laceration on her head and had to have stitches.  Ms. Watkins
was also nauseated and she vomited a couple of times.  Ms. Watkins was at
the hospital for only a matter of hours and was discharged in the care of her
mother.

[140]     Mr. Vey
visited Ms. Watkins while she was at her mother’s place.  Ms. Watkins
was very confused and continued to be nauseated.  She was angry because she did
not want to be there.  She stayed for perhaps one night and came to stay with Mr. Vey
at his house.

[141]     Mr. Vey
said that prior to the accident Ms. Watkins was fiercely independent and
highly motivated.  She had the superb ability to organize tasks, which he
observed, in particular at work, where she had to think several steps ahead,
which grades or diameter changes, which paper reels to be fed to the winder,
and so on.  In his observation Ms. Watkins seemed to accomplish these
steps very easily.

[142]     After the
accident Ms. Watkins had a bump on her head where the stitches were put
in.  She complained of a sore neck and shoulders, a sore hip and sciatica,
causing numbness and tingling in her toes.  He said that Ms. Watkins
“hobbled around”.  He had to help her as she could not get her head wet and
could not shower.

[143]     The bump
on her head healed in a normal fashion, although the wound ejected some foreign
material at one point.  She had pain and soreness in her neck and shoulder,
with significant problems with range of motion with her neck.  She had
difficulty twisting and tilting.  This lasted “quite some time” and Ms. Watkins
underwent a fair amount of physiotherapy treatment.  Mr. Vey said that
there was no major trauma to her shoulder but there was lingering pain and her
shoulder bothers her if she sleeps on that side.

[144]     Ms. Watkins
continues to complain of problems with her neck.  When she plays hockey she
says that her neck is sore because of the weight of the helmet.  She makes the
same complaint with skiing.  She also complains about her neck when doing
school work on the computer and on her drives to Victoria.  On the drive she
also complains of hip soreness.

[145]     Mr. Vey
said that her hip and sciatica problems continue to be an issue.  Sitting for
long periods of time bothers her.  He said that she is “lazy” in her left foot so
she trips and stumbles a fair bit with that foot.  This lazy foot problem has
only happened since the accident.

[146]     Mr. Vey
discussed Ms. Watkins’ sports activities, as follows:

Skiing:  Ms. Watkins is
now much more tentative and is not as good a skier.  She is no longer
aggressive.  She is “definitely not as good” and is less likely to ski
challenging terrain.  Also, the number of runs she completes has changed a lot
as she wants a break after a couple of runs.

Soccer:  Mr. Vey said
that he has watched her fairly regularly.  Her participation level has
decreased.  Her team was dominant.  She played in goal but also played as a
defender.  He said that she is more of a peripheral, perimeter player, playing
outside of areas where there will be contact.  She also does not head the
ball.  She used to play the full 90 minutes but now plays less than half,
perhaps 15 minutes a half.

Hockey:  Mr. Vey noted
that the level of hockey was not high.  He said the Ms. Watkins is average
in ability.

Fishing:  Fishing is now
confined to waters near Campbell River.  They went to fish on the west coast as
they have done before, but Ms. Watkins found the drive very stressful, the
tent not comfortable, and Ms. Watkins was very uncomfortable going
offshore.  Formerly she used to be actively involved, driving the boat and
operating the downrigger, but now he does it all and Ms. Watkins does not
even want to steer the boat.  He said that Ms. Watkins finds his running
back and forth (as one has to do to both drive and set up the lines) very
stressful.

Golf:  Mr. Vey said
that Ms. Watkins golfed with her friends more than she does with him, but he
said that she plays three or four good holes but then gets tired and falls
apart.  She is usually “done” after nine holes.

[147]     Mr. Vey
said that the biggest changes in Ms. Watkins are her distractibility/lack
of focus and her shorter temper and irritability.  As for irritability, Mr. Vey
said that she would be irritated even if he shuffled paper or turned the pages
of a book.  Sharp words were the result.  As for distractibility, he gave the
example of starting to make a sandwich, being interrupted by a ringing phone,
doing other things for two hours, then coming back and wondering why the food
has been left out.  She starts a task, gets distracted and does not resume it. 
Mr. Vey said that Ms. Watkins has trouble in groups, for example a
group at a pub event.  He said that one conversation is really all she can
handle, and she cannot follow that one conversation if other conversations are
going on.

[148]     Mr. Vey
said that Ms. Watkins is entirely reliant on a day planner and everything
is written down, particularly anything outside her regular routine.  This
includes hockey, soccer and appointments.  She also uses the daily planner and
post-it notes for such tasks as feeding the cats and remembering to put the
cats inside.  She cannot go shopping without a shopping list.

[149]     Mr. Vey
said that Ms. Watkins fatigues easily and sleeps more than anyone he
knows.  She sleeps 10 hours a day and more if she is stressed.  He says that
she fatigues easily.

[150]     When asked
how long she could stay at a task, Mr. Vey said that Ms. Watkins can
be at her laptop for hours, but she is not productive for more than two hours. 
Although she is very determined, she takes a while to get her train of thought
going, and nothing much is produced after an hour or so.  She will work and
work at a task unproductively when it would be better to go away and come back
to it.

[151]     When asked
about her cooking, Mr. Vey said that her cooking is now rudimentary and
she makes mistakes.  One time she poured cold pasta sauce on cooked pasta.  He
said that she will cook a meat dish but only cook the meat.  This results in a
meal where the meat course is ready but no vegetables or salad has been
prepared.

[152]     As for
household chores, Mr. Vey tends to do the labour intensive chores, such as
vacuuming, yard work and cooking.  Ms. Watkins does do some dishwashing
but Mr. Vey still ends up doing the dishes most of the time.  Ms. Watkins
does the laundry, but she may forget to put the clothes in the dryer.

[153]     Mr. Vey
said that their social activities are now focused on a core group of friends
and smaller groups.

[154]     When asked
about plans for children, Mr. Vey said that he has had a vasectomy and Ms. Watkins
has no interest in having kids of her own.

[155]     Mr. Vey
said that the accident injuries have affected his relationship with Ms. Watkins. 
Intimacy has decreased due to her fatigue and irritability.  He finds that Ms. Watkins
does not communicate well and does not focus if he needs to talk about
something.  He feels he does not have someone he can share with.  Prior to the
accident she was very open with sharing.  That’s how their relationship formed.

[156]     Mr. Vey’s
last shift at the Elk Falls mill was on February 20, 2009.  He had no idea that
he would lose his job.  He “ramped up” a small business that he had as a hunting
guide, and he worked in the Yukon for a couple of summers, 75 days each time. 
He also worked as a research assistant for a professor in summer 2010, a
position he was able to secure because he had gone back to finish his
university degree.  He obtained a bachelor of science degree in biology in, it
would appear, 2010 or 2011.

[157]     But for
the accident he would have been one of the first to go to Fort McMurray.  He
did not do so because he felt he had to stay in Campbell River to look after Ms. Watkins. 
15 or 20 people have gone to work in the oil sands, all of whom were paper
machine workers at the Elk Falls mill.  He would have done it due to his
financial obligations imposed on him by his mortgage and for child support.  He
would not have moved from Campbell River, and would have commuted as others
do.  The typical shift is week on, week off.  This schedule would have enabled
him to see his children on his days off.  He also noted that his parents reside
in Campbell River.

[158]     Mr. Vey
said that with Ms. Watkins’ distractibility and irritability issues make
it impossible for her to have his children around their house.  He said that
the children were additional people imposing on her “inner sanctum” and Ms. Watkins
cannot handle the “chaos” of teenagers.  They tried it for a while but the
children now do not come over and instead he sees his children outside the
home.

(c)      Other Lay Witnesses

[159]     Several
witnesses testified about observations of Ms. Watkins before and after the
accident and about employment or employment prospects.

Randy
Jenkins

[160]     Randy
Jenkins is a former employer of Ms. Watkins.  He is a project manager and
general contractor.  Ms. Watkins worked on several of his projects,
including two dry-land log sorting yards, a road bridge and a marine terminal. 
Ms. Watkins did various duties including office work, surveying
assistance, first aid, flagging, monitoring truck loads and other miscellaneous
jobs.  Mr. Jenkins said that Ms. Watkins was a hard worker, got along
with everyone, and performed very well in male-dominated environments,
including being authoritative with other workers when the situation demanded
it.

[161]     Mr. Jenkins
said that Ms. Watkins was a willing and capable employee, a multi-tasking
person who you could put anywhere that might need a good office and first aid
employee.

[162]     Mr. Jenkins
said he had several projects from 2008 to 2011 for which Ms. Watkins would
have been well suited.  He would have hired her if she had been available.  The
rate of pay would have been from $20.00 to $22.00 an hour.

Tammy
Dodge

[163]     Ms. Dodge
knows Ms. Watkins through hockey, golf and mutual friends who play
soccer.  She played on the same hockey team for two of four seasons.

[164]     Ms. Dodge
described Ms. Watkins as a “wonderful young lady” who deals well with her
challenges.  She said that Ms. Watkins is the most capable golfer she has
seen through the first three holes, but then her game falls apart.  She is not
capable of golfing 18 holes.  Ms. Dodge noted that games cannot be
arranged spontaneously with Ms. Watkins as she needs several days’ notice
and the event has to be “planned to a T”.   After hockey games Ms. Watkins
does not stay as long as other teammates.  Ms. Watkins does not go to
hockey tournaments because the making of the necessary arrangements is too
stressful for her.

[165]     As for social
events, Ms. Dodge has not been to Ms. Watkins’ house very often, but
when she has been there she noted that the event seemed to be very challenging
for Ms. Watkins, and Ms. Dodge noted that the refrigerator was
covered with reminder notes.  Ms. Watkins has been to Ms. Dodge’s
house for social gatherings, often involving cooking or baking, and Ms. Watkins
has had difficulty even helping others.  Once, Ms. Watkins could not
handle the noise and just said “stop” to everyone.  Ms. Dodge had to help
her with the baking task by breaking the task down for her.  Another time Ms. Watkins
phoned her for help to bake a cake for Mr. Vey.  Ms. Watkins could
not handle recipe shortcuts, and making icing without a recipe was very hard
for her to comprehend.

[166]     In larger
social groups (eight to ten people) Ms. Dodge has noted Ms. Watkins
sits in the same place and has an “exit plan” if the event becomes too much for
her.  She often asks other people for context help during conversations. 
Typically, she leaves events early and is gone by 10 p.m.    Where an event
involves multiple conversations Ms. Watkins “totally zones out” and is
“physically anxious”.  Ms. Watkins can handle only one conversation at a
time.  While playing cards in a group for small stakes (25 cents a chip) Ms. Watkins
was distressed when she lost money and she did not seem to enjoy playing.

[167]     Ms. Dodge
said that Ms. Watkins fatigues easily and needs lots of sleep.

[168]     Ms. Dodge
has been on two hockey team trips with Ms. Watkins, one to Las Vegas and the
other to Nanaimo.  Both trips were very difficult to arrange with Ms. Watkins. 
Ms. Watkins could not imagine sharing a room and was very anxious.  In Las
Vegas Ms. Watkins found it very difficult to deal with the different wishes
of the other players as to the free-time activities.  Ms. Watkins had a
list of things she wanted to do and simply wanted to do her whole list.  For
the Nanaimo trip Ms. Watkins was very anxious and worried about how she
would get home or what would happen if she got tired.  After that trip Ms. Watkins
said she would not go to any more tournaments.

Melinda
Martin

[169]     Ms. Martin
has known Ms. Watkins for about 15 years and has played soccer with her
both before and after the accident.  Prior to the accident Ms. Watkins
usually played defence, and while she was average in terms of skill level, she
was a “go getter”.  Ms. Watkins had a laid back, easygoing personality and
socialized well in large groups.

[170]     Ms. Martin
learned of Ms. Watkins’ accident shortly after it happened.  Ms. Watkins
complained of headaches, shoulder pain and a sciatic nerve problem in her leg. 
Ms. Martin noted that Ms. Watkins’ thoughts were slower and it took
her longer to answer questions.

[171]     Ms. Watkins
played in goal after the accident because she could not head the ball.  She
either stood on the sidelines or played in goal, but because the team was
dominant, her involvement was that of a “pylon”.  Her post-game socializing was
different; she was anxious about attending, she would write things down to keep
track of the conversation and she would not stay as long as the others.

[172]     Ms. Martin
reiterated the evidence of earlier witnesses concerning Ms. Watkins’ golf
game.  Her game falls apart at around the fourth hole, she rarely plays more
than nine holes and playing 18 holes is usually “a disaster”, even with the use
of a golf cart, as golf balls are sprayed “all over the place”.  Any
arrangements for golf have to be done in advance as Ms. Watkins will not
do anything on the spur of the moment.  She was not like that before the
accident.

[173]     Ms. Martin
said that, cognitively, Ms. Watkins is snow “definitely slower”.  While
she is bright enough, it takes her longer to process things.  She has a lot of
anxiety, is obsessive-compulsive and is worried about things all of the time. 
Because of her problems in larger groups, they tend not to go to her home and
instead she is more comfortable going to homes of others.  Ms. Watkins
hosted a recent summer barbecue and spent the time fetching just one thing at a
time.  She would not sit down and she was worried about people making a mess. 
At a recent visit to Ms. Watkins’ home Ms. Martin noted lots of
post-it notes with reminders on them; Ms. Martin never saw this sort of
thing before the accident, and she was at her place frequently.

Greg
Derouin

[174]     Mr. Derouin
is a former mill co-worker.  He worked at the Elk Falls mill from January 1993
to January 2008.  His normal position on the paper machines was fifth hand,
though he was trained up to winderman.  His skills and seniority were similar
to those of Mr. Vey.

[175]     Mr. Derouin
left the mill to work as an bitumen production operator in Fort McMurray. He
said that the skills required in this work are similar to those he used in the
paper mill.  He bought a house in Fort McMurray, but he maintained his
residence in Campbell River, where he lives with his wife and two children.  He
subsequently sold the Fort McMurray house and now lives in camp when working
there, a camp that he described as being hotel quality with good amenities.  His
shifts are seven days on and seven days off.  His employer pays for flights
from Fort McMurray to either Calgary or Edmonton, with the employee being
responsible for any further travel required.  He chooses to fly to Calgary
because there is a direct flight from Calgary to Comox.

[176]     Ms. Derouin’s
starting base salary was $98,900, but additions to that for various things
brought his effective salary to $140,000.  He worked as an operator for just
eight months before moving up to lead hand, which is a senior operator position. 
Eighteen months later he was promoted again, to shift team lead, where 20
operators report to him.  His base salary is now $149,000 and his overall
income is now about $238,000.

[177]     Mr. Derouin
said that there are women who work for the company and there are separate
facilities for women in the camp.  His employer encourages women and
aboriginals to apply.  There is still a brisk demand for employees and poaching
of one company’s employees by other companies is not uncommon.

[178]     The company
is receptive to new-hire recommendations from existing employees; in his
present senior position he is able to ask that a specific applicant be
interviewed.  Mr. Derouin said that Ms. Watkins’ connection with him
would have helped her.  He said that Ms. Watkins had the type of skill set
the company was looking for and there are few women with processing
experience.  He said that Ms. Watkins was a very good, hard worker at the Elk
Falls mill.  He expected that, if hired, Ms. Watkins would have “easily”
been placed at level 4 or 5 on the 8-level operator pay scale, which would
translate to approximately $42 per hour or an annual income between $143,000
and $145,000.

Kelly
Kersteiner

[179]     Mr. Kersteiner
is another former Elk Falls millworker.  He started at the mill in May 1988 and
left in November 2008.  He worked his way up through the paper machine
positions, right up to winderman and relief backtender.

[180]     Mr. Kersteiner
worked on the same crew and same shift as Mr. Vey and came to be friends
with him.  He also came to know Ms. Watkins at work.  He said Ms. Watkins
was a very good worker, got the paper to him on time (which was important in
his job as winderman) and was able to multi-task.  He said her job could be
physically demanding at times, for example, when a shift was experiencing
multiple paper breaks.

[181]     Mr. Kersteiner
now works in Fort McMurray with Canadian Natural Resources Limited.  He started
as a field operator, doing equipment checks as well as “isolations” and
“de-isolations” of piping, a process needed to carry out maintenance.  Similar
processes are used in pulp mills.  Currently he is a control room operator, a
very senior position.  His earnings are around $210,000 per year.  As with Mr. Derouin,
Mr. Kersteiner maintains his home in Campbell River, stays in camp, and flies
out through Calgary and Comox.

[182]     Mr. Kersteiner
said that Ms. Watkins’ skill set was transferable to oil sands work.  He
said that a lot of pulp and paper workers found employment in Fort McMurray.

[183]     Mr. Kersteiner
socialized with Ms. Watkins prior to her accident through work crew social
events.  He continues to be friends with Mr. Vey and Ms. Watkins. 
Prior to the accident Ms. Watkins was well-rounded, very knowledgeable and
well-read, could multi-task, and could converse in a group.  She was a very positive,
bubbly person.  Since the accident Ms. Kersteiner finds that Ms. Watkins
has to really concentrate on a conversation so that she can participate.  She
is now reserved, and struggles to keep up.

Colin
Somers

[184]     Mr. Somers
is another former Elk Falls millworker and friend of both Ms. Watkins and Mr. Vey. 
His position at the mill was fourth hand on machine No. 1, but he usually
worked as winderman.  He started at the mill in September 1988 and left when
the mill shut down.  For the last three years he has worked as a crew
supervisor and forest technician, a position he secured through a displaced
worker program.  In his current job he is laid off during winter months.  He
earns about $38,000 per year.  He said he chose not to seek employment in Fort
McMurray, as other millworkers did, due to a lifestyle choice.

[185]     Mr. Somers
has known Ms. Watkins for 10 years.  He first met her when she was a
student starting out on the paper machines.  He has also skied with Mr. Vey
and Ms. Watkins.

[186]     Mr. Somers
said that Ms. Watkins’ skiing is now more tentative than it was
pre-accident.  Formerly she used to adopt the skiing advice he gave her; now,
she does not respond to the tips he gives her.  He has noticed that in
conversations Ms. Watkins occasionally goes off on inappropriate tangents,
something she did not do prior to the accident.

B.             
Expert Witnesses

(a)      Dr. Dean Johnston,
neurologist

[187]     Dr. Johnston
saw Ms. Watkins in June 2009 at the request of the ICBC rehabilitation
department.  The defendants did not challenge Dr. Johnston’s report and he
was not required to attend for cross-examination.

[188]     Dr. Johnston
concluded that Ms. Watkins suffered a traumatic brain injury as a result
of the accident.  He noted that one of the most important predictors of
traumatic brain injury outcome is the degree of amnesia surrounding the event,
and amnesia was significant in Ms. Watkins’ case.  He noted as well that Ms. Watkins
reported a number of symptoms consistent with post-concussion syndrome,
including mood changes, irritability, poor balance, headaches, poor sleep,
intolerance of exercise, and fatigue.  Associated with her traumatic brain
injury are symptoms of headaches, mood and personality changes, poor
concentration, and distractibility with difficulty focussing on tasks.

[189]     Dr. Johnston
concluded that Ms. Watkins suffered a low back, probably
musculoligamentous, injury at the time of the accident.

[190]     Dr. Johnston
concluded that Ms. Watkins was rendered totally disabled by the traumatic
brain injury as a result of the accident.  He also opined that the injury
precluded her from engaging from her previous employment, at least as at the
date of his examination, primarily because of problems with distractibility and
poor attention.  He said, however, that this finding did not mean that she will
ultimately not be able to perform that sort of work in the future, but it was
difficult to predict.  It also did not mean that she was excluded from all
forms of employment.

[191]     Dr. Johnston
said that the duration of the total disability was difficult to predict as Ms. Watkins
continued to suffer significant symptoms more than two years after the
accident.  He said that this was a poor prognostic sign for a full and complete
recovery, but it was “certainly possible”.  He concluded that Ms. Watkins
will likely suffer a degree of permanent disability related to her brain
function, but the extent and severity of the disability and whether it would
affect her employability and future earnings, were impossible for him to
determine at that time.

(b)      Dr. Lynne MacKean,
physiatrist

[192]     Dr. MacKean,
a specialist in physical medicine and rehabilitation, examined Ms. Watkins
in November 2010.  The defendants did not challenge her report and she was not
required to attend for the purpose of cross-examination.

[193]     Dr. MacKean’s
examination disclosed complaints of increased pain in Ms. Watkins’
lumbosacral region on particular movements, and pain in the right sacroiliac
region on palpation.  There was full range of motion.  On examination of the
cervical spine Ms. Watkins demonstrated decreased range of motion and she
complained of increased pain in the lower neck and upper thoracic spine region
on certain movements.  She also described pain on palpation of the lower
cervical spine and upper thoracic spine, with muscular discomfort into both
scapular regions and up both sides of the neck.

[194]     Dr. MacKean
diagnosed a Grade 2 whiplash associated disorder relating to Ms. Watkins’
cervical spine and upper thoracic spine.  She also diagnosed lumbosacral spine
musculoligamentous injuries.

[195]     Dr. MacKean
recommended continuing physiotherapy and that she continue with an exercise
rehabilitation program.  She was encouraged to continue with her sports
activities up to her level of ability.  Dr. MacKean concluded that Ms. Watkins
would have difficulty returning to work at the paper mill as she would have
difficulty doing the heavier physical aspects of the job.  She also opined that
Ms. Watkins had most likely reached the point of maximal medical
improvement and she did not think that Ms. Watkins would see significant
improvement to her neck and back beyond that point in time.

(c)      Dr. Deborah Allison,
neuropsychologist

[196]     Dr. Allison
performed neuropsychological assessments of Ms. Watkins in 2007, 2008 and
2011.

[197]     Dr. Allison’s
first report is dated August 2, 2007.  For this report she assessed Ms. Watkins
on July 5, 2007, four months after the accident.  Dr. Allison administered
a number of tests and from all the information gathered, she concluded that Ms. Watkins
had good general intelligence, good attention in various forms, intact
executive functions (such as problem solving, fluency of words) and high
average to superior learning and memory for both visual and auditory
information.  Dr. Allison found, however, that Ms. Watkins had
decreased processing speed for complex tasks, weak flexibility of attention and
signs of ongoing emotional distress, particularly anxiety associated with
driving.  At that point Dr. Allison was of the view that Ms. Watkins’
current difficulties were due to a combination of both a mild traumatic brain
injury and emotional distress, both arising from the car accident.  Among other
things, Dr. Allison recommended that Ms. Watkins undergo
psychotherapy to help her address her emotional difficulties.

[198]     Dr. Allison’s
second report is dated October 4, 2008 and reflects an assessment of Ms. Watkins
that was conducted on September 15 and 16, 2008.  At that time Ms. Watkins
reported complaints of headaches, decreased attention and distractibility, and
emotional changes associated with, among other things, driving and loud noises.

[199]     On this
assessment Dr. Allison noted essentially normal executive functions but
evidence of weakness and flexibility of attention, and slowing on more complex
tasks.  She had a very low score on selective attention to auditory stimuli, a
result that was significantly lower than the result in 2007.  Dr. Allison
said that she would not have expected a decline in this score but noted that Ms. Watkins’
anxiety was much worse on this occasion.

[200]     Dr. Allison
noted that the expected pattern of recovery had not occurred in Ms. Watkins’
case and this lack of recovery “is almost certainly due to the development of
emotional difficulties subsequent to this accident, particularly anxiety”.  It
was Dr. Allison’s opinion that Ms. Watkins’ current difficulties were
due to a combination of both a mild traumatic brain injury and emotional
distress, both due to the car accident.

[201]     Dr. Allison
said that “given the fact that both mild traumatic brain injuries and high
levels of anxiety lead to difficulties with attention and with distractibility,
it is not possible to determine precisely how much of her cognitive difficulty
is due to the injury and how much is due to her anxiety”.  Dr. Allison
strongly recommended that Ms. Watkins continue with and indeed increase
the frequency of psychotherapeutic sessions.

[202]     Dr. Allison’s
third report is dated March 22, 2011 and reflects an assessment of Ms. Watkins
that took place earlier that same month.

[203]     Dr. Allison
noted that Ms. Watkins implemented the recommendation for further
psychotherapeutic treatment and was seeing Dr. Waterman on a regular
basis.  Dr. Allison noted as well that Ms. Watkins was seen by physiatrist
Dr. F. Killian in Victoria, who diagnosed traumatic brain injury plus
cervical and lumbar strain.  Dr. Killian referred Ms. Watkins to an
outpatient neurorehabilitation program, where she was first seen on January 29,
2010.  Ms. Watkins attended the outpatient treatment program from
September 2010 to December 2010.  At the time of the 2011 assessment, Ms. Watkins
reported the following continuing difficulties:  physical issues (neck pain and
sciatic pain), headaches, decreased balance, decreased attention, emotional
changes (anxiety with driving and being easily startled by loud noises), decreased
energy, and excessive sleep associated with decreased energy.

[204]     Testing
revealed a continuing difficulty with flexibility of attention, consistent with
her previous assessment.  Testing of anxiety levels placed Ms. Watkins in
the mild range of anxiety symptoms, an improvement from 2008.  Depression was
shown as mild but also somewhat improved from 2008.

[205]    
Dr. Allison concluded:

The improvement seen in this
assessment as compared to the previous assessment almost certainly reflect the
improvement in her emotional distress (particularly her anxiety).  The
continuing weaknesses in high level attention, in my opinion, represent the
residual effects of the mild traumatic brain injury which she suffered in the
motor vehicle accident of March 4, 2007 (diagnosed by several physicians,
including a neurologist) with little or no contribution from emotional issues. 
These weaknesses were consistent with her report of having difficulty focusing
if there is any noise in her environment and were also consistent with my
observations of her in the testing situation.

[206]    
Dr. Allison concluded that any added stress, in the form of
increased anxiety or uncertainty, will impact her ability to focus and to
function optimally.  She concluded that, given that four years have now lapsed
from the date of the injury, the prognosis for Ms. Watkins is that no
further functional change or improvement could be expected in the future.  Dr. Allison
said:

Given this ongoing difficulty, Ms. Watkins
will be challenged to find employment which she would be able to sustain. 
Although she is clearly bright and competent in many respects, in order to
function at her high level she needs a quiet and predictable environment
without distractions (totally unlike her previous employment situation).

[207]     In
testimony, Dr. Allison noted that she does her own psychometric testing,
and she does not leave this task to be done by an assistant, because it affords
her the opportunity to observe the patient.  In observing Ms. Watkins
during testing Dr. Allison said that Ms. Watkins exhibited no signs
indicative of pain.  It is also Dr. Allison’s practice to ask about pain
throughout the assessment, and Ms. Watkins responded each time that she
was fine.  At the 2011 assessment Ms. Watkins reported to Dr. Allison
that she still experienced pain in her neck, headaches and sciatica, but these symptoms
had reduced significantly from before.  As for anxiety, Dr. Allison said
that she observed anxiety in Ms. Watkins in the first and second
assessments, but not in the 2011 assessment.  Research shows that unless
anxiety is found to be at a diagnostic level it should not affect cognition. 
Accordingly, Dr. Allison concluded that anxiety was not a factor in the low
results in the attention tests.

[208]     In
cross-examination Dr. Allison disagreed that there was a prospect for
further improvement but because it was over four years post-accident she
considered it unlikely.  Although there would be no real functional change,
psychotherapy might assist Ms. Watkins in better managing her
difficulties.

[209]     Dr. Allison
also said that if a patient were in pain during testing this would affect the
results in all tests, not just some of them.

(d)      Dr. Rosemary Vernon
Wilkinson, neuropsychologist

[210]     Dr. Wilkinson
prepared a report dated July 9, 2011 at the request of defence counsel.  She
assessed Ms. Watkins the previous month.

[211]     Dr. Wilkinson
concluded that Ms. Watkins did suffer a mild traumatic brain injury because
of the accident, but she had recovered from it soon afterward.  She attributed
the ongoing symptoms of Ms. Watkins to her continuing physical discomfort
and her “raised anxiety, hypervigilance about her physical condition and
possible audio-vestibular problems resulting in noise intolerance”.   While these
symptoms had improved, they were still a problem.  She said that Ms. Watkins
“still has marked anxiety and low mood”, which Dr. Wilkinson attributed to
the accident.  She recommended continued psychotherapy, but with a rehabilitative
focus and not a focus on an acceptance of brain injury.  The focus of this
psychotherapy would be to manage and overcome her symptoms.  Dr. Wilkinson
recommended an assessment by an ENT specialist to determine why Ms. Watkins
is so extremely noise sensitive.

[212]     Dr. Wilkinson
expected that that Ms. Watkins would do well academically and vocationally
in future, but she did not expect Ms. Watkins to be able to return to work
in a paper mill because of her noise sensitivity.

(e)      Rebuttal Reports of Dr. Allison
and Dr. Wilkinson

[213]     Both
neuropsychologists prepared reports to respond to points made by the opposing
expert.  Dr. Allison prepared a report dated August 31, 2011, commenting
on Dr. Wilkinson’s report of July 9, 2011.  Dr. Wilkinson prepared a
report dated September 19, 2011 commenting on the points by Dr. Allison in
her report of August 31, 2011.  I will set out the views of each expert one
after the other, as follows:

(a) Dr. Allison:
Dr. Wilkinson’s assessment and testing was conducted less than three
months after Dr. Allison’s assessment.  This offended the standard of a
minimum eight months, and preferably 12 months, between reassessments to reduce
the “practice effect” on test scores.

Dr. Wilkinson: The
tests administered three months after were different tests or were tests where
test details cannot be memorized.  The attention test that was re-administered
showed no inflated scores.

(b) Dr. Allison:
Dr. Wilkinson’s attribution of symptoms to ongoing physical discomfort did
not accord with Ms. Watkins reporting that physical discomfort, though an
occasional issue, was not a significant factor in her daily life.

Dr. Wilkinson: Ms. Watkins
reported to her that she is always in a degree of physical discomfort, a 2/10
on a pain scale, with 7 to 8/10 at maximum.  Sciatica bothers her while
sitting.

(c) Dr. Allison:
Dr. Wilkinson’s conclusion that Ms. Watkins’ ongoing attention
problems were attributable to her significant anxiety was inconsistent with Dr. Allison’s
recent assessment of her anxiety as being in the mild range and it was
inconsistent with the improvement in emotional status that Dr. Allison
noted in her most recent assessment.  Dr. Allison said that Dr. Wilkinson’s
own test results did not warrant a conclusion that Ms. Watkins’ anxiety
was “significant”.

Dr. Wilkinson: The
conclusion of anxiety was not just based on testing but also on multiple
evaluation methods.  Ms. Watkins’ self-reports established various indicia
of anxiety.

(d) Dr. Allison:
If Ms. Watkins’ difficulty with hypersensitivity to noise was related
exclusively to either anxiety or physical discomfort then this problem should
have improved with the lessening of anxiety and physical discomfort.  This reduction
has not occurred.  Hypersensitivity to noise is entirely consistent with mild
traumatic brain injury.

Dr. Wilkinson:
Hypersensitivity to noise can result from a variety of physical and
psychological conditions.  It cannot be used to diagnose continued brain damage
without expert ENT assessment.

(e) Dr. Allison:
Ms. Watkins’ complaints of fatigue, despite sleeping 9 or 10 hours each
night, are also consistent with mild traumatic brain injury.

Dr. Wilkinson: There
are many causes of fatigue, brain damage being only one.  Anxiety can itself
cause fatigue.

(f)       Dr. Larry
Waterman, psychologist

[214]     Dr. Waterman
is the treating psychologist for Ms. Watkins.  Ms. Watkins saw a local
psychologist in 2007 but ultimately chose Dr. Waterman to provide
psychotherapy.  Dr. Waterman practices in Nanaimo.

[215]     Ms. Watkins
attended psychotherapy sessions with Dr. Waterman commencing in 2007.  Dr. Waterman
had some familiarity with Ms. Watkins from pre-accident dealings, once
when she was a child (where there was a custody dispute between her parents)
and again in 2005 where she was having some personal difficulties associated
with dealings with her parents.

[216]    
In a report dated October 26, 2010 Dr. Waterman said Ms. Watkins
continued to experience periodic symptoms of adjustment disorder with mixed
anxiety and depressed mood.  He said:

These symptoms are to a large
extent situational in nature.  Whenever Erika experiences an unexpected event
or a situation for which she is not prepared, she becomes very anxious and has
difficulty coping with the situation.  If it is a prolonged situation, she also
experiences symptoms of clinical depression including sleep difficulties, mood
swings, isolation, anger outbursts and a heightened level of agitation.  These
symptoms typically persist until such time as the situation has been resolved
or Erika has been able to implement various coping strategies which help her
deal with the situation more effectively.

[217]     Dr. Waterman
added she continued to have other problems.  At times Ms. Watkins finds it
difficult to focus, to concentrate and remember information that she is
studying, and she has problems with headaches and balance problems.  Dr. Waterman
said that while he continued to see Ms. Watkins making progress in her
psychotherapy, it was his opinion that she would never fully recover from the
effects of the mild traumatic brain injury suffered in the car accident.

[218]    
In a report dated February 14, 2011 Dr. Waterman said that her mild
traumatic brain injury or post-concussional disorder resulted in a number of
limitations, as follows:

For example, it has impacted on a number of aspects of her
executive functioning including memory difficulties; planning and follow
through; focus and concentration; a high degree of distractibility; mood
fluctuations including becoming easily irritated and angry; frustration at not
being able to perform at the high standard that she was able to achieve prior
to the MVA; a lowered frustration tolerance which is demonstrated in a variety
of ways; becoming more easily fatigued by activities that she could easily
perform without difficulty such as driving for long periods of time; and
limitations in terms of her sports activities which have always been a big part
of her life.

Not surprisingly the limitations
outlined above have impacted on a number of areas of Erika’s life including her
relationship with her husband Dave who she knows is very supportive of her but
it is still difficult at times; trying to complete her degree at UVIC and not
being able to proceed at a pace that she expects herself to be able to achieve;
modifying her athletic abilities to fit her current limitations; learning to
incorporate and use a variety of compensatory techniques to help her cope with
her executive functioning limitations; and learning how to deal with a lower
tolerance for frustration which is easily triggered by a variety of situations.

[219]     Dr. Waterman
said his treatment was primarily focused on cognitive behavioural techniques
and methods to help Ms. Watkins achieve the goals desired, including
helping her learn to incorporate successful coping strategies and avoid the
frustration that is so easily triggered.  He noted that Ms. Watkins seemed
to do best when she has psychotherapy sessions approximately once every two
weeks and recommended that this continue.

[220]     In
evidence given by deposition, Dr. Waterman said:

(a)      Ms. Watkins
presented with an adjustment disorder, with depressed mood;

(b)      he felt
that Ms. Watkins would return to work, not at her former type of
employment but at a job where she could work at her own pace, in a quiet
setting and free from distractions; and

(c)      he did
not see Ms. Watkins as having generalized anxiety.

(g)      Derek Nordin, vocational
consultant

[221]     Mr. Nordin
prepared a report dated July 28, 2011.  He administered to Ms. Watkins a
number of vocational tests, including a test of vocational interests and the
General Aptitude Test Battery (GATB).  One of the GATB tests, General Learning
Ability, had a score that was lower than that suggested in IQ testing
administered by Dr. Allison, but Mr. Nordin noted that Ms. Watkins
failed to answer a significant number of questions in the time allotted.  He
concluded that this failure to complete questions could reflect an inability to
work at a rapid pace.

[222]     Testing of
vocational interests showed high interest in vocations with investigative elements;
in particular, protective service, scientific research and development
(including computer science, engineering, chemistry and biology) and medical
science.

[223]     Mr. Nordin
said that despite some mixed academic results, Ms. Watkins would be able
to complete her degree in the future.  However, Ms. Watkins’ employability
potential will continue to be significantly impaired.  Because of her ongoing
issues, particularly her noise intolerance, Mr. Nordin felt it difficult
to identify any realistic employment setting where Ms. Watkins could work,
except perhaps work that was done out of her home.  He ruled out any physical
work, work in an office setting, work that involved interacting with the public
to a significant degree, restaurant work, equipment operating work or work in a
warehouse.  Although Mr. Nordin said it would be ideal if Ms. Watkins
could secure a work trial with a sympathetic employer, he concluded that it was
likely that Ms. Watkins would not be able to manage to work in a
competitive setting.

(h)      Samantha Gallagher,
vocational consultant

[224]     Ms. Gallagher
is the defendants’ vocational consultant.  She prepared a report dated November
2, 2011 in which she commented on Mr. Nordin’s report.  She neither
interviewed Ms. Watkins nor administered any tests to her.

[225]     Ms. Gallagher
said the following:

(a)      although
Mr. Nordin commented that Ms. Watkins’ post-accident academic work
had mixed results, Ms. Gallagher noted that her post-accident marks were
similar to her pre-accident marks;

(b)      Ms. Watkins
seemed to perform well on Mr. Nordin’s tests despite having complained of
keyboarding noises coming from a different room.  Similarly, she achieved
decent marks in university courses where noises would have been prevalent;

(c)      in
concluding that Ms. Watkins is competitively unemployable, Mr. Nordin
did not seem to have explored potential occupations that have quieter
environments. Though he mentioned working in a home environment, Mr. Nordin
did not explore types of work that could be done at home;

(d)      Mr. Nordin
did not discuss the possibility of potential job site accommodations (e.g.,
using ear plugs or working in an area separate from other employees) that could
be implemented to minimize noise and distraction;

(e)      Some
types of quiet environment employment that might be contemplated include
bookkeeping, insurance agent, inventory clerk or filing clerk;

(f)       Mr. Nordin
did not mention any form of vocational rehabilitation assistance for Ms. Watkins. 
Ms. Gallagher felt Ms. Watkins would benefit from this type of
assistance.  In response to a question from the Court, Ms. Gallagher said
that $2,000 would be a typical cost for this kind of vocational assistance.

[226]     In
addition to the experts listed above, the parties each filed reports from economists:
for the plaintiff, Robert Carson, setting out income loss multipliers; and for
the defendants, Douglas Hildebrand, also setting out income loss multipliers
but also including incomes for certain types of employment.

C.             
Positions of the Parties

[227]     The plaintiff
submits that she suffered injuries to her neck and back that have rendered her
unsuitable for physical work.  More seriously, she also suffered a mild
traumatic brain injury (which I will at times refer to as MTBI).  The defence
neuropsychologist, Dr. Wilkinson, was the only expert who felt Ms. Watkins
was not suffering from MTBI and so her opinion should be rejected in favour of
the opinion of Dr. Allison.

[228]     The
plaintiff submits that, but for the accident, she would have gone to work in
the oil sands industry in Alberta, as many of the millworkers did.  She submits
that not only did she lose readily-calculable income from the mill, she also lost
the opportunity to earn the significant income available in the “oil patch”, a
sum the plaintiff claims at $400,000.  Future income loss is also premised on
this scenario, and is claimed in the range of $1.8 million to $2.3 million.  In
addition, the plaintiff says there should be awards for cost of future care and
special damages.

[229]     The
defendants submit that the Court should favour the opinion of Dr. Wilkinson
over the opinion of Dr. Allison.  Although Ms. Watkins suffered a
mild traumatic brain injury as a result of the accident, Ms. Watkins
recovered from the effects of that injury within several months.  The ongoing
cognitive impairments experienced by Ms. Watkins are attributable to
ongoing pain from her physical injuries, her generalized anxiety and her
intolerance of noise, all of which are treatable.

[230]     The
defendants submit that Ms. Watkins is employable and she should get
vocational coaching or other assistance to help identify suitable employment
and assist in her transition back to the workforce.

[231]     For past
loss of income the defendants accept that Ms. Watkins has lost income from
her mill employment from the date of the accident until the time of the mill
closure in February 2009.  They dispute that she would have sought employment
in the Alberta oil patch after that; instead she would have stayed on the
Island to finish her degree.  For future loss of earnings the defendants submit
that, but for the accident, Ms. Watkins would have obtained work in a
science-related field after acquiring her university degree.  They also submit
that she is currently capable of doing that sort of work.  They concede that
she would have some impairment to her residual earning capacity.

D.             
Discussion

(a)      Physical Injuries

[232]     Ms. Watkins’
physical injuries are not in dispute.  I pause to observe that while a brain
injury is, of course, a physical injury, the parties adopted the words
“physical injuries” to distinguish Ms. Watkins’ neck, back and other
injuries from her brain injury.

[233]     To briefly
summarize those physical injuries, Ms. Watkins suffered whiplash-type
injuries to her mid-back and upper back, and she also suffered injuries to her
lower back, described by Dr. MacKean, a physiatrist, as “lumbosacral spine
musculoligamentous injuries”.  She had considerable pain in all those areas.  She
also suffered from headaches.  Her low back problems included sciatica, which
caused numbness in her left foot.  She described her neck pain as “terrible”. 
A year after the accident she was still having significant neck and back pain
and was having continuing problems with sciatica.  She was undergoing
physiotherapy and took anti-inflammatory medication.  Five years after the
accident she continued to have problems in her neck and shoulders, having
limited range of motion, tightness and periods of pain.  Her lower back pain
had improved to the point of being a mere nuisance at times.  Because of the
ongoing problems with her neck and shoulder, Ms. Watkins modifies or
avoids such activities as vacuuming or computer work to prevent a flare-up of
her symptoms.

[234]     Dr. MacKean,
who saw Ms. Watkins in late 2010, noted her ongoing problems and concluded
that Ms. Watkins had likely reached maximal medical improvement, though Dr. MacKean
recommended continuing physiotherapy and an active exercise rehabilitation
program.  However, Dr. MacKean did not expect Ms. Watkins to see any
further improvement to her neck and back problems.  Dr. MacKean expected
that Ms. Watkins would have difficulty with the physical aspects of her
mill job and concluded it would be difficult for her to resume that sort of
work.

(b)      Mild Traumatic Brain
Injury

[235]     The main
dispute between the parties is whether Ms. Watkins continues to suffer the
effects of mild traumatic brain injury.  I conclude that the weight of the
medical and psychological evidence shows that Ms. Watkins’ ongoing
cognitive difficulties are likely attributable to MTBI.

[236]     On one
level, at least, it does not matter what is causing Ms. Watkins’ ongoing
cognitive problems because it is not disputed that the accident caused these
problems.  The difference lies in potential treatability.  Even here, however,
despite what Dr. Wilkinson described as Dr. Waterman’s “excellent
psychotherapy”, Dr. Wilkinson acknowledged that while Ms. Watkins’
symptoms have improved, they are “still a problem”.  She recommended that Ms. Watkins’
psychotherapy be refocused from one of acceptance of her condition to a
“rehabilitation model”.  She did not, however, provide much in the way of a
prognosis for the success of this therapy other than to conclude that that she
expected Ms. Watkins to do well academically and vocationally in the
future.

[237]     Returning
to the issue whether Ms. Watkins continues to suffer the effects of MTBI,
an important point to remember is that there is general agreement by all
professionals, Dr. Wilkinson included, that Ms. Watkins suffered a mild
traumatic brain injury as a result of the accident.  Where Dr. Wilkinson
differs from the other professionals is in her opinion that Ms. Watkins
recovered from that injury some months post-accident and that her current problems
are attributable to psychological, not organic, factors.

[238]     Both of
the neuropsychologists were thorough and both were steadfast in their opinions. 
Dr. Allison concluded that Ms. Watkins’ ongoing cognitive and related
difficulties were the residual effects of a mild traumatic brain injury.  Dr. Wilkinson
felt that Ms. Watkins’ current cognitive difficulties were attributable to
excessive anxiety, hypervigilence about her physical condition and possible
audio-vestibular problems resulting in noise intolerance.

[239]     I found Dr. Wilkinson’s
attribution of noise intolerance to ear or inner ear problems to be very
speculative.  I found it odd that no physician has apparently recommended an ENT
investigation despite the many physicians (including head injury specialists)
who dealt with Ms. Watkins’ case.  Noise intolerance, Dr. Allison
said, is consistent with a traumatic brain injury.  While Dr. Wilkinson
said that noise intolerance can also result from other physical and
psychological conditions, no other causative conditions were demonstrated in
the evidence at trial.

[240]     Dr. Wilkinson
also rested her diagnosis on what she described as Ms. Watkins’ “marked
anxiety”.  I found it significant that Dr. Waterman and Dr. Allison,
the two psychologists who have had ongoing contact with Ms. Watkins (and
in Dr. Waterman’s case, very regular contact) did not regard anxiety as a current
material problem.  Dr. Waterman said he did not see Ms. Watkins as
having generalized anxiety, and Dr. Allison said that while she observed
anxiety in Ms. Watkins in her 2007 and 2008 assessments, she did not see
it in her 2011 assessment.

[241]     Dr. Wilkinson
also said that Ms. Watkins’ ongoing pain and discomfort would account for “cognitive
inefficiency in everyday life”.  I conclude, however, that the seriousness of
this pain and discomfort Dr. Wilkinson described or relied upon was
materially greater than that described by Ms. Watkins herself.  Dr. Wilkinson’s
own psychometrist (the person who administered tests to Ms. Watkins)
reported that Ms. Watkins appeared comfortable during testing that lasted
all day (9:00 a.m. to 4:30 p.m., with two one-hour breaks).

[242]     For those
reasons I conclude that Dr. Allison’s views are to be preferred over those
of Dr. Wilkinson.

[243]    
Finally, there is the opinion of Dr. Johnston, the neurologist.  He
concluded that Ms. Watkins suffered a mild traumatic brain injury in the
accident and that it continued to be a disabling condition when he saw her in
2009, more than two years after the accident.  He added:

…One of the most important predictors of traumatic brain
injury outcome is the degree of amnesia surrounding the event.  This is
significant in Ms. Watkins‘ case.

I am of the opinion that Ms. Watkins
will likely suffer a degree of permanent disability related to her brain
function.

[244]     As noted
earlier, Dr. Johnston’s opinion was not challenged at trial and he was not
required for cross-examination.

[245]     For all of
those reasons I conclude that the weight of the medical evidence establishes
that Ms. Watkins suffered a mild traumatic brain injury as a result of the
accident and that her ongoing cognitive and related difficulties are due to
that injury.

(c)      Consequences of Injuries

[246]     It is
clear that Ms. Watkins has had, and continues to have, many problems
associated with her head injury, including headaches, mood changes, anxiety,
fears associated with driving, difficulty with memory, poor concentration,
distractibility, fatigue, problems with balance, irritability and noise
intolerance.  Perhaps understandably, she has also had problems with low mood.

[247]     These
problems have affected her life greatly.  Her distractibility makes it
difficult for her to stay on task.  She relies on a day planner and post-it
notes to remind her of things that she would have had no difficulty remembering
prior to the accident.  She is unable to be spontaneous with activities.  She
now has obsessive-compulsive traits.  She is irritable and has a short temper,
and this has had a negative effect on her relationship with her husband.  She
cannot follow conversations in groups.  Her ability to socialize is impaired.  She
fatigues easily and sleeps a lot.  Her ability to engage in recreational activities
(soccer, hockey, fishing, skiing and golf) is curtailed, and her ability to
enjoy those activities is much less than it was before.  I accept all of these
things as proven.

[248]     In
addition to these cognitive-type difficulties, as described earlier Ms. Watkins
also suffered painful and lingering physical injuries to her neck, back and
shoulders, and she also suffered from sciatica.  She is now incapable of
heavier physical work.  Even such minor activities as vacuuming, yard work and
computer work have to be avoided or done either in moderation or in a limited
way.

[249]     In short, Ms. Watkins’
life is profoundly different than it was before the accident.

[250]     The
prognosis for Ms. Watkins’ physical injuries is that there will be no
further improvement.  As for her head injury prognosis, I accept Dr. Allison
opinion that it is unlikely there will be any real functional change, although psychotherapy
might help her in better managing her difficulties.

(d)      Non-Pecuniary Damages

[251]    
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal
reiterated the underlying purpose of non-pecuniary damages by quoting the
following passage from Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637:

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.).

[252]    
The Court went on to list factors commonly considered in making an award
of non-pecuniary damages:

(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; and

(i)         loss of lifestyle.

[253]     I will not
address each of these factors but I have considered them all.  I will also not
reiterate my earlier conclusions concerning the plaintiff’s physical injuries
and her head injury.  Suffice it to say that Ms. Watkins, who had just
turned 27 at the time of the accident, suffered physical injuries that caused
her a great deal of pain and discomfort over a number of years and which are
expected to have permanent lingering effects.  The effects of her head injury,
described in full earlier, will likely be with her for the rest of her life.

[254]     The
plaintiff submits that the award for non-pecuniary damages should be between $175,000
and $190,000, citing Hodgins v. Street, 2009 BCSC 673, Rintoul v.
Gabriele, 2011 BCSC 858 and Towson v. Bergman, 2009 BCSC 143.

[255]     The
defendants submit that non-pecuniary damages should be around $125,000.  They
cited Holmes v. Hanna, 2001 BCSC 759, Zhang v. Law, 2009 BCSC
991, Bonham v. Smith, [1998] 9 W.W.R. 673 (B.C.S.C.), Slocombe v.
Wowchuk, 2009 BCSC 967 and Traynor v. DeGroot, 2003 BCCA 483.

[256]     The cases
cited by the plaintiff were closer to the mark.  I assess non-pecuniary damages
at $175,000.

(e)      Past Loss of Income

[257]     There were
two items of disagreement on Ms. Watkins’ loss of paper mill income: (1)
the amount of earnings on which to base the calculation; and (2) the date her
employment would have ceased.

[258]     The
plaintiff based her calculation on year-to-date earnings in 2007 (up to the
date of the accident, $20,549), that she said translated to $80,000 on an
annual basis (in fact, it is around $82,000).  The defendants based their
calculation on 2006 earnings ($68,959), rounded up to $70,000, but they said
that there should be a deduction of 5% for health contingencies as
Ms. Watkins had some health-related absences in 2005, 2006 and 2007.

[259]     The
parties made few submissions on this point.  The reasons why Ms. Watkins’
2007 earnings appear to be more robust than those in 2006 were not addressed in
submissions, but a close re-examination of her testimony reveals that she said
her 2007 regular mill income was $16,000 and the balance may have been a
payout of “accrued time off”, which I took to mean vacation pay.

[260]     I resolve
the issue by calculating her average monthly earnings in the 14 months
pre-accident ($68,959 + $16,000, divided by 14 months), which yields a figure
of $6,000, rounded (rounded down because the accident occurred a few days over
the 14 months).

[261]     As to the
end date, the defendants’ submissions were premised on an end date of February
22, 2009, the last day of operation for the mill, but there was some mention
during the trial of earlier layoffs in the kraft mill in November 2008 that
gave kraft mill employees the right to bump into the paper machines. 
Mr. Vey said, however, that no junior paper machine workers were in fact
bumped.  Oddly, the plaintiff herself submitted that the end date should be
September 2008, a date for which there appears to be no foundation.

[262]     I
therefore conclude that this aspect of past income loss should be calculated to
February 22, 2009.

[263]     The loss
period is 23.75 months, which when multiplied by the average earnings of $6,000
per month results in a total loss of mill income of $142,500.

[264]     I see no
reason to apply a negative contingency to this figure, as submitted by the
defendants, because the earnings figures I have used already reflect any
reduced income for health reasons that occurred in 2006 and 2007.

[265]    
A more difficult question arises when considering what Ms. Watkins
would have done for employment, but for the accident, after the Elk Falls mill
shut down.  Although this is a past loss, because of the uncertain nature of
the loss it is to be assessed in the same way as a loss of future earning
capacity: Falati v. Smith, 2010 BCSC 465.

[266]    
In Falati, Saunders J. said:

[38]      The plaintiff is entitled to be restored to the
position he or she would have been in but for the defendant’s negligence, so
far as that can be done with a monetary award. This may involve “a comparison
of the likely future of the plaintiff if the accident had not happened with the
plaintiff’s likely future after the accident has happened” – Rosvold v.
Dunlop, 2001 BCCA 1 at para. 8.

[39]      Though pre-trial losses are often spoken of as if
they are a separate head of damages, e.g. “past loss of income” or “past wage
loss”, it is clear that both pre-trial and future losses are properly
characterized as a component of loss of earning capacity – Rowe v. Bobell
Express Ltd., 2005 BCCA 141. The principles governing the evaluation of
capacity claims have been articulated most clearly in judgments dealing with
future losses, that is to say, loss of future earning capacity:  for example,
the recent decision of the Court of Appeal in Perren v. Lalari, 2010
BCCA 140, in which the alternative “real possibility” and “capital asset”
approaches to assessment are reviewed and discussed.

[40]      The full assessment of damages for such losses may
involve, at least to some extent, consideration of hypothetical situations and
contingencies – what might have happened, or what might yet happen, had the
accident not occurred, as distinct from what actually has happened. However,
particularly where the claimed losses are derived from something other than a
measurable, conventional income stream, the determination of a plaintiff’s
prospective post-accident, pre-trial losses can involve considering many of the
same contingencies as govern the assessment of a loss of future earning
capacity: “The only difference is that knowledge of events occurring before
trial takes the place of prediction” – Prof. Waddams, The Law of Damages,
Looseleaf Ed. (2008) para. 3.360. When considering hypotheticals and
contingencies in the context of a pre-trial loss, the same general principles
which govern the assessment of lost future earning capacity may be equally
applicable – Waddams, ibid. As stated by Rowles J.A. in Smith v. Knudsen,
2004 BCCA 613, at para. 29,

“What would have happened in the
past but for the injury is no more ‘knowable’ than what will happen in the
future and therefore it is appropriate to assess the likelihood of hypothetical
and future events rather than applying the balance of probabilities test that
is applied with respect to past actual events.”

[41]      Those general principles involved in the process of
assessment include the following:

·          
The task of a court is to assess damages, rather than to
calculate them mathematically – Mulholland (Guardian ad litem of) v Riley
Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43;

·          
The standard of proof is not the balance of probabilities; the
plaintiff need only establish a real and substantial possibility of loss, one
which is not mere speculation, and hypothetical events are to be weighed
according to their relative likelihood – Athey v Leonati, [1996] 3
S.C.R. 458, 140 D.L.R. (4th) 235, at para. 27;

·          
Allowances must be made for the contingencies that the
assumptions upon which an award is based may prove to be wrong – Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R.
(2d) 99 (C.A.);

·          
Any assessment is to be evaluated in view of its overall fairness
and reasonableness – Rosvold, at para. 11.

[Emphasis added.]

[267]     Ms. Watkins
testified that, but for the accident, after the closure of the Elk Falls mill
she would either have gone to Alberta as many fellow millworkers did, or she would
have contacted former employers like Randy Jenkins to look for work.

[268]     I thought
that Ms. Watkins was very fair in her testimony on this point.  She was
not sure what she would have done, but said she had those two options.  I
accept that both were viable options for her.  Just how likely each option was
is another matter.

[269]     The
plaintiff submitted that she would have worked for Mr. Jenkins for perhaps
two months and then joined the company Mr. Derouin worked for.  The
defendants submitted that Ms. Watkins would have returned to university,
just as Mr. Vey did, since Mr. Vey did not seek work in the oil patch
when the mill closed.  Ms. Watkins would then have either gone on to
complete a Master’s degree, pursued science-related work, or worked in an
applied field such as radiology technician.

[270]      I do not
find either scenario at all likely.  The plaintiff’s scenario does not take
into account Ms. Watkins’ general pre-accident goal of obtaining a
bachelor’s degree and moving into a staff or management position.  I conclude
from this that she did not see herself as a “lifer” in front-line industrial
processing work, although she might have pursued that sort of work on a short
or medium-term basis.  The defendants’ scenario ignores the fact that, but for
the accident, Ms. Watkins and Mr. Vey would have struggled
financially to attend university at the same time.  The accident gave
Ms. Watkins an income in the form of long-term disability benefits, income
that would not have been available in a “no accident” situation.

[271]      I
consider it most likely that, but for the accident, after the mill closure
Ms. Watkins would have finished her degree in between stints of work for
Mr. Jenkins or equivalent work, done sometime over the pre-trial period. 
I accept as well, however, that there was a real possibility that she would
have gone to work in the Alberta oil sands industry for a time.

[272]     Given
these conclusions, I turn to an assessment of the loss, noting that the
relevant time is from the end of February 2009 (when the mill closed) to the
first day of trial, a period of 36.5 months.

[273]     Taking the
midpoint of the hourly wage range referred to by Mr. Jenkins ($20.00 to
$22.00 per hour), full-time work (40 hours per week, 52 weeks per year) would
generate annual income of approximately $44,000.  To finish her degree
Ms. Watkins needed two more academic years of study, which is four terms
or 16 months, assuming full-time studies.  She therefore would have been
available for work for 20.5 of the 36.5 months.  If she worked for
Mr. Jenkins (or did equivalent work) for all of those 20.5 months her
earnings would have been about $75,000.

[274]     I
consider, however, that there are some negative contingencies that must be
taken into account.  It seems unlikely, for example, that Ms. Watkins
would have been immediately employed by Mr. Jenkins following the closure
of the mill.  I conclude that it would be reasonable to assume a period of
unemployment to allow for job search or for a position to open up.  I also note
that Mr. Jenkins’ work was project-based and so there would likely be some
periods of time where no work was available until the next project started up,
though Ms. Watkins might have been able to find short-term work
elsewhere.  This contingency is ameliorated somewhat in light of
Mr. Jenkins’ evidence that on some projects the required hours might be
nine hours a day, six days a week, which is more than the 40 hours per week on
which the annual income of $44,000 is premised.  Doing the best I can on the
basis of the available evidence I hazard the view that these periods of job
search or lack of any employment, not otherwise made up by projects requiring
long hours, might total four months during the overall period in question. 
This reduces the earnings months to 16.5.  At an annual income of $44,000 the
resulting loss is about $60,000.

[275]     I
emphasize that I am not attempting a calculation of actual loss but instead I
am assessing damages for past loss of earning capacity using as a general guide
the evidence about hourly wage rate, available work and Ms. Watkins’
stated goal of finishing her bachelor’s degree.

[276]     As noted
earlier, although I consider it more likely that Ms. Watkins would have
stayed on the Island, completed her degree and also worked for
Mr. Jenkins, there is nonetheless a real possibility that Ms. Watkins
would have gone to work in northern Alberta for a time.  Because the accident
foreclosed this possibility this is an additional loss to Ms. Watkins that
requires an assessment of damages.

[277]     Again, I
assess this loss on the basis of 20.5 available working months, which I reduce
to 18 months to allow for time to secure work.  On this point the defendants
argued that the 2008 economic downturn caused a considerable slowing of
activity in the oil extraction industry, relying in this regard on the evidence
of Mr. Derouin, but I note that all Mr. Derouin said was that
activity “flattened a bit”, and that this did not happen right away following
the November 2008 market crash.  I conclude that Ms. Watkins would probably
have obtained work in the oil sands had she sought it.  The evidence shows that
as a woman with experience in industrial processing work, who would have had
very strong work references, Ms. Watkins would have been seen as an
attractive candidate.

[278]     In
submissions the plaintiff assumed a likely oil sands income of $120,000, noting
that this would not reflect bonuses, overtime and the like, but also not taking
into account the cost of air travel between Comox and Calgary (the employer
paying for the flight from Fort McMurray to Calgary), which Mr. Derouin
said amounts to about $10,000 per year.  I note that this would be an after-tax
expense.  Mr. Derouin said he expected Ms. Watkins would have secured
a job paying (in 2012) around $143,000 to $145,000 annually, excluding
overtime, which was readily available.

[279]     I accept
that $120,000 is a reasonable figure given the factors outlined above.

[280]     What
Ms. Watkins has lost, then, is the opportunity to earn $180,000 ($120,000
annually, for 18 months) instead of $60,000, a difference of $120,000.  I
assess the prospects that she would have pursued employment in the Alberta oil
sands industry at 30%.  When applied to the differential in total earnings the
resulting figure is $36,000.  I assess damages for this lost opportunity in that
amount.

[281]     The total
of the amounts for past losses is $238,500 ($142,500 + $60,000 + $36,000).

(f)       Loss of Future Earning
Capacity

[282]     In
submissions the plaintiff presented her claim on the basis of annual income of
$145,000 from oil sands work for a period of 10 years, with income of $50,000
thereafter, to age 60.  The plaintiff’s submission does not make any allowance
for any residual earning capacity.

[283]     The
defendants reject the suggestion that Ms. Watkins might have gone to work
in the northern Alberta oil patch.  They rely on full-time earnings of persons
with bachelor’s degrees in chemistry and submit that, “provided the plaintiff
can achieve full-time full-year employment, using a degree in chemistry, she
would perhaps suffer no specific loss of future earnings but would, however, be
left with some impairment to her residual earning capacity.”  The defendants
also note the age difference between Ms. Watkins and Mr. Vey (he is
14 years her senior) and submit that Ms. Watkins would likely retire in
her 50s so that she could spend her retirement years with her already-retired
husband.

[284]     I find
that both submissions miss the mark, given the evidence.  As noted earlier,
Ms. Watkins’ pre-accident goal of getting a bachelor’s degree and moving
into a staff or management position causes me to conclude that she would not
have worked in the oil patch on a long-term basis.  For that reason I do not
accept the plaintiff’s submission.  I do not accept the defendants’ submission
because I conclude from the evidence that she is unlikely to be capable of
full-time employment of a type that would garner her the income she was capable
of earning but for the accident.

[285]     The
assessment of loss of earning capacity requires that I consider the income that
Ms. Watkins would have earned had the accident not happened.  So far as
length of career is concerned, I agree with the submission of the defendants
that it is likely that, but for the accident, Ms. Watkins would have retired
from the work force while in her 50s.  I consider 55 to be the appropriate age
for assessment purposes.

[286]     Mr.
Hildebrandt’s report shows earnings for several classes of workers, including
persons with chemistry degrees.  He calculates cumulative earnings for   these
persons, from the trial date to age 55, at $827,790, a figure that takes into
account labour market contingencies and survival rates.  While I conclude that
this is a reasonable figure on which to base the likely career earnings of Ms.
Watkins, from the various positive descriptions of Ms. Watkins as a worker I
expect that she would have probably earned more than the average.  As a guide,
I note that the comparable figure for cumulative earnings of persons with
general bachelor’s degrees is $889,469.  I consider this to be the more
appropriate figure to use in this case.

[287]     Ms. Watkins’
residual earning capacity is a more difficult issue.  I accept
Dr. Allison’s opinion that given Ms. Watkins’ ongoing difficulties
“she will be challenged to find employment which she would be able to sustain”
and “although she is clearly bright and competent in many respects, in order to
function at her high level she needs a quiet and predictable environment
without distractions”.  Mr. Nordin was of a similar opinion.  He found it
difficult to identify any realistic employment setting where Ms. Watkins
could work, except perhaps work that was done out of her home.

[288]     Ms. Gallagher,
the defendants’ vocational consultant, was not as pessimistic, but neither was
she very concrete in what she felt Ms. Watkins could now do. 
Ms. Gallagher’s general theme was that Mr. Nordin had failed to
consider specific home-based employment, job site accommodations, or quieter
types of employment such as bookkeeping, filing clerk or insurance agent.  The
latter suggestion contradicted the opinion of Mr. Nordin that
Ms. Watkins was not suited for any work that involved dealing with the
public to any substantial degree.  On this point I agree with Mr. Nordin.

[289]     Doing the
best I can on the basis of the available evidence, I conclude that
Ms. Watkins has some residual earning capacity for home-based work,
possibly bookkeeping.  That is essentially the only possible or viable
employment that was identified in the evidence.  That sort of work would allow
Ms. Watkins to work at her own pace in an environment that she is able to
control.

[290]     Mr. Hildebrand
indicated in his report that bookkeepers have average full-time, full-year
earnings of $41,495.  I conclude that Ms. Watkins would not achieve that
average because (1) due to her physical limitations it is unlikely that she
would be capable of working eight hours a day, five days a week at a type of
work that would involve a lot of time on a computer; (2) the evidence shows
that she is easily fatigued; and (3) her distractibility will interfere with
her productivity.

[291]     Doing the
best I can on the evidence, I conclude that Ms. Watkins’ residual earning
capacity is $20,000 per year.  Applying that figure to Mr. Hildebrand’s tables
reveals cumulative earnings to age 55 of $347,680.  The difference between this
figure and the earlier no-accident cumulative earnings figure ($889,469) is
$541,789.

[292]     I turn
next to any contingencies that might be applied.  I conclude that there ought
to be no negative contingency applied for the possibility of children given
that both Ms. Watkins and Mr. Vey indicated they had no desire (or in Mr. Vey’s
situation, any present ability) to have children.  I consider it appropriate to
take into account the possibility (which I earlier assessed at 30%) that Ms.
Watkins might have gone to work in the oil patch in the pre-trial period, which
would have delayed her resumption of post-secondary studies to what is now the
post-trial or future period.  This would have meant reduced earnings for Ms.
Watkins during the expected two-year period required to complete her degree.

[293]     No other
contingencies were identified by the parties in their submissions.  I note that
labour market contingencies and survival rates were already taken into account
in Mr. Hildebrand’s figures.

[294]     I again
emphasise that loss of future earning capacity involves an assessment, not a
calculation.  I assess this loss at $525,000.

(g)      Cost of Future Care

[295]     Dr. Waterman
recommended further psychotherapy, 10 sessions per year for five years.  At
$175 per hour the cost would be $8,750.  I am satisfied that the need for this
therapy was made out on the evidence.

[296]     The
plaintiff claims the cost of travel to see Dr. Waterman in Nanaimo.  The
defendants submit that Ms. Watkins should get psychotherapy locally. 
Ms. Watkins said she preferred Dr. Waterman but I am not satisfied
that the cost of that preference ought to be visited on the defendants.  I
allow this claim at $8,750.

[297]     I am also
satisfied that the plaintiff has shown a need for vocational assistance.  I
allow this at $2,000, the amount estimated by Ms. Gallagher.

(h)      Special Damages

[298]     The
plaintiff claims special damages totalling $21,078.62, the largest item of
which is the value of Ms. Watkins’ totalled vehicle ($13,098.40).

[299]     Only two
items were disputed by the defendants.  One of those was the cost of a new bed
($2,883.70).  The plaintiff said she had to replace her former bed because its
soft top aggravated her symptoms.  The defendants submit that there was no
medical evidence to support the need for a new bed, and they noted the
plaintiff replaced a queen-size bed with a king-size bed, with an attendant
cost for new linen.

[300]     The
plaintiff established that her old bed aggravated her symptoms and it was
recommended she get a firmer bed.  I do not have a note of who made that
recommendation but, in any event, I consider the evidence of symptom
aggravation to be sufficient proof of need.  I agree there is an element of
betterment, so I assess this claim at $1,800.00.

[301]     The other
disputed item of special damages was a claim by the Ministry of Health Services
for recovery of health care costs of $3,417.82 pursuant to the Health Care
Costs Recovery Act, SBC 2008, c. 27.  I agree with the submission of
the defendants that the obligations imposed by the Act do not apply here
because this lawsuit was commenced before it came into force: s. 24(2) of
the Act.

[302]     Special
damages are therefore allowed at $16,577.10.

IV.           
Summary

[303]     In
summary, I award the plaintiff damages as follows:

[304]     The
parties have leave to address any further matters that arise as a consequence
of this judgment.

[305]    
The plaintiff will have her costs unless there are matters the parties
wish to bring to my attention.

“Blok
J.”

Schedule
“A”