IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140808

Docket: M08280

Registry:
Courtenay

Between:

Shirley McCarthy

Plaintiff

And

Kenneth Davies

Defendant

Before:
The Honourable Madam Justice Gerow

Reasons for Judgment

Introduction

[1]            
Shirley McCarthy was involved in a motor vehicle accident on March 7,
2010. She seeks damages for the injuries she alleges she suffered as a result.

[2]            
The defendant admits liability for the accident, and that Ms. McCarthy
sustained soft tissue injuries to her neck and back. However, the defendant disagrees
about the extent, seriousness and duration of her injuries.

[3]            
The defendant says Ms. McCarthy has not proven her ongoing
complaints were caused by the accident. The defendant asserts Ms. McCarthy’s
ongoing complaints are likely the result of her degenerative spine condition and
pre-existing depression, and would have existed despite the accident.

Issues

[4]            
The issues are:

1)    What are the
nature, extent and duration of the injuries Ms. McCarthy suffered in the
accident?

2)    What is the
appropriate award of general damages for pain and suffering?

3)    What amount should
be awarded for the past and future loss of earnings or income earning capacity?

4)    What amount, if
any, should be awarded for cost of future care?

5)    What amount
should be awarded for special damages?

Background

[5]            
The motor vehicle accident occurred on March 7, 2010, when Ms. McCarthy’s
vehicle was rear-ended by a vehicle driven by the defendant, Mr. Davies. Ms. McCarthy
was driving a 2005 Chrysler Sebring four-door sedan and the defendant was
driving a 1989 GMC two-door pickup truck. When the accident occurred, Ms. McCarthy
was pulling off the road to pick up her youngest son. Her vehicle was equipped
with a seat belt which she was wearing.

[6]            
The impact of the collision caused Ms. McCarthy’s vehicle to be
pushed forward approximately 20 feet, and suffer significant damage. The
rear view mirror was found in the back seat after the accident. Ms. McCarthy
did not have any warning before the impact.

[7]            
Ms. McCarthy testified she remembered “seeing white” at the moment
of the impact. She was totally shaken by the accident. She got out of her
vehicle and exchanged information with the defendant. Immediately afterwards, she
felt confused and scared. She phoned her husband, and then drove the vehicle
home. No emergency vehicles attended the scene of the accident.

[8]            
As she was driving home, Ms. McCarthy started to feel a burning
sensation in the right side of her neck. The pain continued to worsen, and she
went to a walk-in clinic as it was Sunday and her doctor’s office was not open.
At the walk in clinic she was told to ice the area and take some Ibuprofen. She
went home and followed the advice and went to bed. On Monday the pain was worse.
Ms. McCarthy went to ICBC and got a rental car. After that she went home,
iced her neck and shoulder, took an anti-inflammatory and went to bed.

[9]            
The pictures of Ms. McCarthy’s vehicle show significant damage to
the rear end. The vehicle was subsequently written off.

[10]        
Ms. McCarthy is married with three children. At the time of the
accident, she was 47 years old. Ms. McCarthy had completed a nursing
certificate while her children were still living at home, between 2001 and 2004.

[11]        
Following graduation Ms. McCarthy obtained a number of casual and
part-time positions. In March 2010, she was working as a registered nurse for
three different employers. She was a casual employee at St. Joseph’s Hospital
in Comox, and Glacier View Lodge in Courtenay, both of which are extended care facilities.
As well, she had a part-time job at Communitas Supportive Care Society in
Campbell River. All of her work was in the area of gerontology. Her combined
income from the three nursing jobs amounted to approximately 50-60% of a
full-time registered nurse’s salary.

[12]        
After the accident, Ms. McCarthy completed her regularly scheduled
shifts at Communitas on Tuesday and Wednesday but noticed increased pain. She
went to see Dr. Bowler, her family doctor, on Wednesday and was advised to
take time off work.

[13]        
Since the accident, Ms. McCarthy has been unable to return to work
as a registered nurse. Her evidence is that her plan prior to the accident was
to return to work full-time as a nurse when her youngest child had left home to
attend university in August 2012, and work for as long as she could. Ms. McCarthy
testified that she has been unable to return to work as a nurse because of the
ongoing symptoms she continues to suffer from the injuries she sustained in the
accident.

[14]        
Ms. McCarthy attempted two graduated return to work programs. One
in August 2010, at her job in Campbell River, and one between August 2011 and
November 2011at St. Joseph’s Hospital. Ms. McCarthy stopped both programs
because she was experiencing too much pain in her neck, shoulders, back and
hips.

[15]        
Following the failure of the return to work programs, Ms. McCarthy
attempted to retrain so that she could work as a nurse in the insurance field. Unfortunately,
the employment was not financially feasible, and she suffered from increased
pain due to the travel required and performing the duties of the position. Eventually
she lost her designation as a registered nurse because she had not worked
sufficient hours.

[16]        
Ms. McCarthy gave evidence regarding a number of places she applied
to for work, including retail and restaurant jobs. She eventually found
employment at Tim Hortons restaurant. She completed three five-hour shifts and one
eight-hour shift. Tim Hortons could not accommodate Ms. McCarthy. Since
she was unable to work eight-hour shifts she could not continue in the job.

[17]        
At the same time she was looking for employment, Ms. McCarthy
pursued peer counselling for seniors as a volunteer. This has now evolved into
a part-time employment position. Currently she is working nine hours per week,
earning $13 per hour. Ms. McCarthy’s evidence is that she hopes to
increase her hours in this position in the future.

What are the nature, extent and duration of the injuries Ms. McCarthy
suffered in the accident?

Plaintiff’s Position

[18]        
Ms. McCarthy’s position is that she is suffering from ongoing neck,
shoulder, back, and hip pain as a result of the injuries she sustained in the
motor vehicle accident. Her evidence is that her neck, shoulder and back are
the areas that impact her ability to participate in her pre-accident activities.
Ms. McCarthy says that to the extent her ongoing symptoms were caused by her
pre-existing degenerative spine condition, an age related event, it was
asymptomatic, and was triggered by the trauma of the accident into becoming
symptomatic. Ms. McCarthy asserts that absent the accident it is more
likely than not that she would not have chronic pain in her neck, shoulder and
back.

[19]        
Ms. McCarthy asserts that as a result of the chronic pain she is
in, she has become withdrawn and depressed. She concedes she was taking anti-depressant
medication before the accident, but says it was controlling her moods, and she
was completely functional.

Defendant’s Position

[20]        
The defendant takes the position that Ms. McCarthy suffered a
moderate whiplash injury as a result of the accident. He says any ongoing neck,
shoulder, back and hip pain is not caused by the accident, but is caused by the
ongoing degeneration of her spine.

[21]        
The defendant points to the fact that all of the medical experts are of
the opinion that Ms. McCarthy’s condition would likely improve if she
increased her level of activity. As well, the defendant points to the fact that
Ms. McCarthy’s alcohol consumption may be adversely affecting her
recovery.

[22]        
The defendant says the injuries Ms. McCarthy sustained in the
accident were properly diagnosed as soft tissue injuries to her neck area. He
takes the position that Ms. McCarthy’s low back pain is not related to the
accident, but rather is related to activity, postural change or deconditioning.
The defendant says that if Ms. McCarthy received appropriate treatment for
both her physical and psychological problems her symptoms would improve and she
would be able to return to her pre-accident activities and employment. The
defendant asserts Ms. McCarthy has not proven on a balance of
probabilities that her ongoing symptoms are caused by the accident.

[23]        
As stated earlier, the defendant does not dispute that Ms. McCarthy
sustained soft tissue injuries to her neck and upper body in the accident. However,
the defendant says she should have been able to return to her job as a
registered nurse within four to six months after the accident. Any ongoing
problems are due to her pre-existing spinal degeneration and her failure to
follow the recommended course of treatment, including exercise and decreasing
her alcohol consumption.

[24]        
As far as the psychological problems Ms. McCarthy is experiencing,
the defendant says the evidence is that she was suffering from depression and
had been on anti-depressant medication for a long period of time prior to the
accident. The evidence is that her dosage increased for a period of time, but
has since returned to the pre-accident levels.

[25]        
The defendant takes the position that Ms. McCarthy’s ongoing
depression and anxiety were not caused by the accident, but pre-existed the
accident. The defendant concedes Ms. McCarthy’s symptoms worsened for a period
of time post-accident, but says those symptoms have now returned to the same or
close to the same level they were at pre-accident. The defendant asserts her
psychiatric diagnosis is essentially the same pre and post-accident. Any award
for psychiatric or psychological problems should be limited to the times her
symptoms were exacerbated.

Relevant Law

[26]        
In order to establish causation Ms. McCarthy must prove on a
balance of probabilities that but for the accident she would not have suffered
the injury she complains of.

[27]        
The Supreme Court of Canada recently considered causation in Clements
v. Clements, 2012 SCC 32. The Court confirmed that the basic test for
determining causation remains the “but for” test articulated in Snell v.
Farrell, [1990] 2 S.C.R. 311, and Athey v. Leonati, [1996] 3 S.C.R.
458. The plaintiff bears the burden of proving that but for the negligent act
or omission of the defendant the injury would not have occurred.

[28]        
The plaintiff is not required to establish that the defendant’s
negligence was the sole cause of his or her injuries. The tortfeasor must take
his or her victim as the tortfeasor finds them, and is liable even if there are
other causal factors, for which the defendant is not responsible, that result
in the victim’s losses being more severe than they would be for the average
person. At the same time, the tortfeasor need not put the victim in a better
position than they would have been in, and need not compensate the victim for
the effects of a pre-existing condition that the victim would have experienced
in any event: Snell and Athey.

[29]        
In Athey at 473, the Court sets out the
way in which a pre-existing condition may be relevant to the assessment of
damages:

[34] … The "crumbling skull"
doctrine is an awkward label for a fairly simple idea. It is named after the
well-known "thin skull" rule, which makes the tortfeasor liable for
the plaintiff’s injuries even if the injuries are unexpectedly severe owing to
a pre-existing condition. The tortfeasor must take his or her victim as the
tortfeasor finds the victim, and is therefore liable even though the
plaintiff’s losses are more dramatic than they would be for the average person.

[35] The
so-called "crumbling skull" rule simply recognizes that the
pre-existing condition was inherent in the plaintiff’s "original
position". The defendant need not put the plaintiff in a position better
than his or her original position. The defendant is liable for the injuries
caused, even if they are extreme, but need not compensate the plaintiff for any
debilitating effects of the pre-existing condition which the plaintiff would
have experienced anyway. The defendant is liable for the additional damage but
not the pre-existing damage: … Likewise, if there is a measurable risk that
the pre-existing condition would have detrimentally affected the plaintiff in
the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award: … This is consistent with the
general rule that the plaintiff must be returned to the position he would have
been in, with all of its attendant risks and shortcomings, and not a better
position.

Application of the Law to the Facts

[30]        
All of the doctors who examined Ms. McCarthy agree she was injured
in the neck, shoulder and upper back in the accident. The evidence is Ms. McCarthy
has sought ongoing treatment for pain and symptoms in her neck, shoulder and
upper back since the accident. As well, all the doctors agree she had
significant degeneration in her cervical spine prior to the accident.

[31]        
Approximately five months after the accident, Ms. McCarthy began to
complain of symptoms in her low back and hip area. At issue are the duration of
the injuries to her neck, shoulder and upper back, and whether the low back and
hip complaints result from the injuries sustained in the accident.

[32]        
Dr. Dommisse, an orthopaedic surgeon who examined Ms. McCarthy
at the request of an ICBC adjuster in March 2011, noted x-rays showed
significant degeneration in her cervical spine. He also noted that she had
suffered a Grade II (moderate) strain of her cervical spine as a result of
the accident. Dr. Dommisse’s opinion was that she should have been able to
return to work within four to six months of the accident.

[33]        
However, at the time Dr. Dommisse examined Ms. McCarthy, one
year after the accident, she still had limited range of motion in her cervical
and thoracolumbar spine. As well, she had tenderness in the midline of her
cervical spine and over the right trapezius muscle. Dr. Dommisse also
reported that Ms. McCarthy had tenderness over the sacroiliac joints and
in her hip areas. Straight leg raises were limited, and raising the right leg
produced right neck and head pain. Dr. Dommisse noted that Ms. McCarthy
was unable to complete her return to work program as she hurt herself at work
reaching for items on a shelf and assisting a patient. He also noted that driving
to Campbell River to work aggravated Ms. McCarthy’s hip pain.

[34]        
Ms. McCarthy was also examined by Dr. Werry, another
orthopaedic surgeon, on October 24, 2013, at the request of the defendant.
Dr. Werry’s opinion was that Ms. McCarthy’s neck pain was probably
due to soft tissue injury in the form of strains to muscles and ligaments. Dr. Werry
was also of the opinion that the accident may have activated symptoms of an underlying
pre-existing degenerative disease in her cervical spine, which was asymptomatic
at the time of the accident. Dr. Werry states that some of Ms. McCarthy’s
ongoing neck pain may be due to the degenerative changes in her cervical spine.
Dr. Werry noted in his report that degenerative cervical spine disease is,
by nature, slowly progressive. While it is his opinion that Ms. McCarthy’s
cervical spine may undergo further degenerative changes in the future it is not
possible to predict what symptoms, if any, may arise as a result of the
progression of such changes.

[35]        
Dr. Werry was of the opinion that Ms. McCarthy’s lower back
pain is not directly related to the accident, because it did not present
immediately following the accident. He stated that the onset of back pain some
months after the accident may have been related to activity and postural
changes, or deconditioning.

[36]        
Dr. Werry opined that, given the ongoing nature of Ms. McCarthy’s
pain, she would benefit from a multi-disciplinary pain treatment program,
including psychological counselling. He stated in his report:

Acknowledging the complex nature
of persistent pain, psychological techniques are often assistive and necessary
to allow successful completion of a physical rehabilitation program which is
central in the management of persistent musculoskeletal pain.

[37]        
In Dr. Werry’s opinion, Ms. McCarthy will likely remain
disabled for general duty nursing work on inpatient wards or long term care
homes of the sort she was working in before the motor vehicle accident.
However, Ms. McCarthy would have the physical capability, following
treatment at a multidisciplinary pain program, to work as a nurse in an
outpatient clinic that did not require the heavy lifting or the reaching
required in an inpatient setting.

[38]        
Dr. Werry’s opinion that the accident caused Ms. McCarthy’s
degenerative neck disease to become symptomatic is consistent with the reports
of Ms. McCarthy’s family doctor, Dr. Bowler. Dr. Bowler noted
that prior to the motor vehicle accident, Ms. McCarthy did not experience any
neck pain or arm paresthesia, i.e. the degenerative process was not symptomatic
at all.

[39]        
Dr. Bowler stated in her report of November 25, 2011, that Ms. McCarthy’s
symptoms worsened after a trial of return shifts at St. Joseph’s Hospital
between August and November 2011. Dr. Bowler was of the opinion it was
unlikely Ms. McCarthy would be able to work full nursing shifts in the
foreseeable future.

[40]        
In an updated report of February 26, 2014, Dr. Bowler stated
that Ms. McCarthy has experienced neck pain, upper back pain, headaches
and right arm pain and numbness immediately after the accident, and later
developed low back and hip pain. She was found to have C5/6 degenerative disc
changes, osteophytes, and central and neuroforaminal stenosis as well as pseudarthrosis
of C1/2. Dr. Bowler stated that Ms. McCarthy did not have any of these
pains prior to the motor vehicle accident.

[41]        
Dr. Bowler summarized the physical modalities attempted, the
investigations undertaken, the referrals made, the medications prescribed and
the clinical course since the accident. As of February 2014, Dr. Bowler
found that Ms. McCarthy is suffering from protracted, persistent, chronic
neck and arm pain, along with upper and lower back pain and hip pain. The pain
fluctuates in intensity but Ms. McCarthy suffers from daily pain which is
worsened by certain activities. She cannot run or do repetitive activities of
most kinds without pain. On physical examination she has restricted range of
motion in her neck and shoulder. She suffers from depression and irritability
secondary to her pain, and relies on a variety of medication to attempt to get
relief.

[42]        
Dr. Bowler noted that Ms. McCarthy is not currently exercising
much but does some biking, treadmill, walking and stretches. Ms. McCarthy
has showed a willingness to go through Rehab in Motion programs and has tried
hard to return to work, although never getting beyond four to five hours due to
pain.

[43]        
Dr. Leete, an orthopaedic surgeon who saw Ms. McCarthy at the
request of her counsel on October 13, 2011, also prepared a report and
testified at trial. At the time Dr. Leete examined Ms. McCarthy, she
was working five hours per day and two days per week and even this caused her
some discomfort. She was undergoing aquatic therapy once a week, taking various
medications, and was having trigger point injections by her family doctor.

[44]        
Dr. Leete also noted the degeneration of Ms. McCarthy’s cervical
spine. Dr. Leete agreed with both Dr. Werry and Dr. Bowler that
the whiplash injuries caused the degenerative changes to become symptomatic.

[45]        
However, Dr. Leete disagreed with Dr. Dommisse’s opinion that Ms. McCarthy
would have been anticipated to recover within three to four months. The reason
for this disagreement is that people with pre-existing degenerative changes,
such as in Ms. McCarthy’s case, will frequently experience a more
protracted period of recovery and more protracted symptoms than otherwise
expected. Degeneration of cervical spine is a normal aging process. Patients
with degenerative changes can be asymptomatic. The presence of degenerative
changes cannot be used as a prognostic indicator of potential pain. However, if
a patient has degeneration and spinal insult he or she is more likely to have
protracted problems with recovery following a trauma to the spine.

[46]        
Dr. Leete noted that some patients never fully recover, and
approximately 10% of patients experience long term intrusive injury for 10 to
15 years after an accident.

[47]        
Dr. Leete’s opinion in his October 17, 2011 report was that Ms. McCarthy
will experience a slow resolution to her symptoms but may not completely
recover. The level of discomfort she suffered at the time interfered with her
ability to work and perform her day-to-day household activities.

[48]        
Dr. Leete provided an updated report on March 16, 2014, and
indicated that due to the persistence of her symptoms over four years, it was
unlikely that Ms. McCarthy would be able to return to her pre-accident
employment as a registered nurse. However, he was of the view that she may be
able to perform sedentary jobs on a full-time basis in the future. Dr. Leete
stated that the duration of Ms. McCarthy’s pain makes it more likely than
not it will persist for the foreseeable future.

[49]        
Dr. MacKean, an expert in physical medicine and rehabilitation, saw
Ms. McCarthy at the request of her counsel on October 27, 2011. Dr. MacKean’s
diagnosis is that Ms. McCarthy suffered:

·                
a grade two whiplash associated disorder in the area of the
cervical spine with persistent nerve irritation involving the right side of her
neck and head;

·                
intermittent numbness in the right upper extremity due to
myofascial tightness on the right side of the neck, in the right upper back
region and possibly some nerve root irritation at the C5-6 level; and

·                
myofascial pain involving the right greater than the left
thoracolumbar spine and hip region.

[50]        
Dr. MacKean opined the ongoing problems Ms. McCarthy described,
with the persistent neck pain and headaches, are related to injuries sustained
in the motor vehicle accident.

[51]        
Even though the lower back and hip pain did not come on until about five
months following the accident, Dr. MacKean was of the view the pain was myofascial
in nature and related to tightness in the neck and upper back, with the spread
of the myofascial pain pattern over time. Dr. MacKean was also of the view
that it was unlikely Ms. McCarthy would be able to increase her work hours
significantly or increase her workload to be able to return to her pre-accident
employment. Dr. MacKean expected that Ms. McCarthy would continue to
improve over time, but was of the opinion it was likely she would be left with
ongoing pain symptoms involving her neck and upper back region in particular,
with pain going into the right side of the head.

[52]        
Two psychiatrists provided expert reports, Dr. O’Breasail who saw Ms. McCarthy
at the request of her counsel, and Dr. Miller on behalf of the defendant.

[53]        
Dr. O’Breasail was of the opinion that Ms. McCarthy
experienced emotional symptoms as a result of the accident, including symptoms
of depression and anxiety, decreased self-esteem and feelings of guilt. She
also experienced changes in her sleep pattern. Ms. McCarthy has increased
weight, decreased energy, feelings of fatigue, and a lowered frustration level,
tolerance, and more irritability. In Dr. O’Breasail’s opinion, Ms. McCarthy
developed Adjustment Disorder with mixed emotional features. There is evidence Ms. McCarthy
had Adjustment Disorder secondary to stresses in her life when she was younger,
and mood variations in and around her period. However, those responded very
well to a relatively low dose of antidepressant medication. Prior to the
accident she was not experiencing any emotional distress. Dr. O’Breasail
recommended Ms. McCarthy attend counselling or psychotherapy, including
cognitive/behavioural techniques to address how she feels about her chronic
pain. He suggested a residential pain treatment program.

[54]        
Dr. O’Breasail’s opinion was that Ms. McCarthy has developed
chronic symptoms of pain, depression and anxiety, and it is unlikely regardless
of what intervention she receives there will be a complete resolution of these
symptoms. On a positive note, Ms. McCarthy is highly motivated to return
to work. Dr. O’Breasail was of the view she would not be able to work for
more than four hours per day, or in physically demanding jobs.

[55]        
Dr. O’Breasail also noted Ms. McCarthy had reported her
ability to pursue recreational activities has been markedly limited since the
accident. Her relationships have been impacted because of her chronic pain and
associated low frustration tolerance, and irritability. He was of the opinion
that it was unlikely Ms. McCarthy would be able to return to her
pre-accident extracurricular activities.

[56]        
Dr. Miller agreed with Dr. O’Breasail’s opinion that Ms. McCarthy
is suffering from chronic pain secondary to the motor vehicle accident and has
developed symptoms of depression and anxiety as a result. Dr. Miller also
agreed with Dr. O’Breasail that Ms. McCarthy should see a counsellor
or psychologist and that cognitive/behavioural techniques be used to
specifically address how she deals with her chronic pain and associated
emotional symptoms. As well, Dr. Miller agreed that a residential pain
treatment would be beneficial. He also agreed that Ms. McCarthy required
antidepressant medication and will require it in the long term.

[57]        
Having reviewed all the medical evidence, I find that Ms. McCarthy suffered
soft tissue injuries to her neck, shoulder, upper back and lower back in the
accident.

[58]        
The defendant asserts that Ms. McCarthy’s low back pain is not a
result of the accident. While Dr. Werry stated in his report that it is
not directly related to the accident because of the time lapse before her
reporting of the pain, he goes on to opine that it is likely related to activity
and postural changes, or deconditioning.

[59]        
That is consistent with the opinion of Dr. MacKean, that the lower
back and hip pain is myofascial in nature and related to tightness in the neck
and upper back, and the spread of the myofascial pain pattern over time. The expert
evidence supports the finding that, even though the low back and hip pain came
on some time after the accident, it was caused by the changes in posture and
injuries resulting from the accident.

[60]        
As stated earlier, all the experts agreed that at the time of the
accident, Ms. McCarthy had significant degeneration in her spine. However,
the evidence from both Dr. Bowler and Ms. McCarthy was that she did
not have any significant neck or back pain prior to the accident. There is no
evidence that Ms. McCarthy’s symptoms in her neck and back would have
arisen spontaneously. None of the experts provided an opinion that, absent the
accident, the degenerative condition in her low back or neck would have become
symptomatic, and if they did, to what degree. In fact, Dr. Werry’s opinion
was that no specific pain generator had been identified and it was very
unlikely that the degenerative disc at C5/6 is a significant pain generator. The
evidence from the experts was that degenerative disease is common in
individuals as they age, and is most often asymptomatic without trauma.

[61]        
The defendant’s expert, Dr. Werry, acknowledges that some of Ms. McCarthy’s
ongoing neck complaints may be due to the degenerative changes in her cervical
spine, although no specific pain generator, such as a degenerative facet joint
has been identified. Dr. Werry concedes that the accident may have
activated symptoms of the underlying pre-existing cervical spine degeneration
disease which was asymptomatic prior to the accident.

[62]        
As well, it is clear from the medical evidence, that Ms. McCarthy
developed increased depression and anxiety after the motor vehicle accident. The
issue is whether she has returned to her pre-accident psychological or mental
state, or whether she continues suffer from increased depression and anxiety.

[63]        
As stated earlier, Ms. McCarthy has not been able to return to her
pre-accident job or activities. None of the experts suggested she is going to
return to her pre-accident condition. Rather, the experts agree that she should
attend a residential pain clinic to learn how to better cope both physically and
mentally with the chronic pain she suffers as a result of the accident.

[64]        
The preponderance of the evidence establishes a temporal connection
between the accident and Ms. McCarthy’s ongoing symptoms of neck pain and
back pain, together with her increased depression and anxiety. The evidence
supports a finding that the whiplash injuries Ms. McCarthy suffered in the
accident caused or contributed to her degenerative disc disease becoming
symptomatic which has resulted in the chronic pain she now suffers.

[65]        
In my view, the evidence establishes the probable cause of Ms. McCarthy’s
ongoing neck, upper back and lower back pain is that the injuries she sustained
in the accident exacerbated her pre-existing asymptomatic degenerative disc
disease. While there was a risk that the degenerative disc disease in her neck and
back would become symptomatic at some point in the future, the evidence is that
she did not have neck or back pain prior to the accident. As stated by Dr. Leete,
there are approximately 10 to 15% of patients who suffer from long term
intrusive symptoms as a result of the trauma to their spines from a motor
vehicle accident.

[66]        
Having reviewed the evidence I have concluded this is one of those
cases, and the defendant is liable for Ms. McCarthy’s ongoing symptoms even
though they may be more severe than expected due to her pre-existing condition.
As stated by the experts, many individuals have degeneration in their spines
without any symptoms. Accordingly I conclude Ms. McCarthy’s ongoing
symptoms fall within the thin skull rule enunciated in Athey.

[67]        
I find that but for the accident Ms. McCarthy would not be
suffering from the chronic pain in her neck, shoulder and back with the
associated mental distress.

Mitigation

[68]        
As stated earlier, the defendant takes the position any awards should be
reduced because Ms. McCarthy has failed to mitigate her damages by
exercising more.

[69]        
There is no question that every plaintiff has an obligation to take
reasonable steps to reduce the damages flowing from a tort. In order to be
successful in discharging the burden of proving that Ms. McCarthy has
failed to mitigate, the defendants must establish that she failed to undertake
a recommended treatment, that by following the recommended treatment Ms. McCarthy
would have overcome the problem, and that the refusal to take the treatment was
unreasonable: Janiak v. Ippolito, [1985] 1 S.C.R. 146 at 162-163; Maslen
v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 at paras. 10-11 (C.A.).

[70]        
The defendant argues that Ms. McCarthy may have recovered more
quickly if she had exercised more and not consumed as much alcohol. However,
there is insufficient evidence to establish that Ms. McCarthy would have
recovered more quickly or more completely if she had exercised more, or reduced
her dependence on medication and alcohol to deal with her pain.

[71]        
The evidence is that Ms. McCarthy has followed recommendations made
to her for active physiotherapy and has continued to exercise despite increased
pain. The evidence is that she has participated in many different therapies,
including fitness classes, pool exercises, and exercise therapy. She continues
to exercise on a regular basis.

[72]        
I note that none of the experts suggest there would be a complete
resolution of Ms. McCarthy’s symptoms regardless of the treatments she
receives, or steps she takes. Rather, the most optimistic view is that Ms. McCarthy
will have some ongoing improvement of her symptoms over time. The defence
experts, with the exception of Dr. Dommisse who saw her fairly soon after
the accident, agree that Ms. McCarthy would likely benefit from attending
a residential pain clinic and specific cognitive and behavioural therapy to
assist her in adjusting to her chronic pain.

[73]        
As well, Ms. McCarthy’s explanation as to why she does not exercise
more is reasonable. Her evidence is that if she exercises too much or does
certain exercise it causes more exacerbation of her symptoms. In the
circumstances, I find the defendant has not established on the balance of
probabilities that Ms. McCarthy has failed to mitigate her damages.

What is the appropriate award of general damages for pain and suffering?

Applicable Law

[74]        
A plaintiff is entitled to reasonable damages for her pain and
suffering. The plaintiff should be placed in the same position she would have
been if the accident had not occurred, but not in a better position: Parypa
v. Wickware, 1999 BCCA 88 at para. 29.

[75]        
In Stapley v. Hejslet, 2006 BCCA 34 at paras. 46, the
court noted that a non-pecuniary award will vary from case to case to meet the
specific circumstances of each case, and set out the factors to be considered
in making such an award as follows:

The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[76]        
Ms. McCarthy relies on Stapley; Wallman v. John Doe,
2014 BCSC 79; Delli Santi v. Pacific National Exhibition, 2000 BCSC 716;
Foran v. Nguyen, 2006 BCSC 605; Schellak v. Barr, 2001 BCSC 1323;
Morlan v. Barrett, 2010 BCSC 1767, aff’d 2012 BCCA 66; and Shapiro v.
Dailey, 2010 BCSC 770, to support the argument that the appropriate range
for general damages is $125,000 to $150,000.

[77]        
The defendants rely on Mayenburg v. Lu, 2009 BCSC 1308; Lopez
v. VW Credit Union, 2008 BCSC 320; and Perren v. Lalari, 2008 BCSC
1117, to support the argument that the appropriate award for general damages is
$50,000 to $70,000, taking into account Ms. McCarthy’s pre-existing
depression and degenerative disease.

Application of the Law to the Facts

[78]        
The defendant’s submissions, and supporting cases, are predicated on the
argument that the injuries caused by the accident are largely resolved except
for occasional flare-ups, and that the accidents did not cause the ongoing lower
back pain. As well, the range suggested by the defendant is predicated on the
argument that Ms. McCarthy had returned to her pre-accident mental state,
and that her ongoing depression and anxiety is similar to what she was
experiencing before the accident. In my view, the facts do not support the
defendant’s submissions.

[79]        
As stated above, Ms. McCarthy suffers from ongoing chronic pain in
her neck and back. Ms. McCarthy and the various lay witnesses testified
regarding the impact the accident had on her.

[80]        
Ms. McCarthy testified that since the accident she has suffered
from ongoing pain, particularly in the right side of her neck, shoulder and
upper back area. She has occasional flare-ups in her lower back and hips
following prolonged sitting or other activity. She has pursued all of the
treatments that have been recommended since the accident, including injections
into her spine.

[81]        
Ms. McCarthy’s evidence is that despite the treatments she has not
recovered. She testified that she pays for any activity she undertakes with
increased pain in her neck and back afterwards. Ms. McCarthy found that
her job duties as a nurse caused her increased pain and discomfort. Ms. McCarthy
testified she has not been able to work for more than four hours at a time,
even in a more sedentary position. As of March 2014 she has lost her status as
a registered nurse because she was not able to work sufficient hours.

[82]        
Further, Ms. McCarthy testified she has not been able to sleep well
since the accident. She wakes up with pain during the night and cannot get
comfortable. Ms. McCarthy testified that her alcohol consumption has
increased because it gives her some relief from the pain. She is unhappy with
the amount of medication she is taking, but when she reduces it her symptoms
increase.

[83]        
Ms. McCarthy testified that she is no longer able to do house or
garden work in the manner she did before. Ms. McCarthy is also unable to
take part in all of her pre-accident extracurricular activities. Prior to the
accident, she was a very active mother of three children. She was extremely
involved in her children’s school and sports activities, and performed
volunteer work in the community. She loved kayaking and swimming, and enjoyed
walking, hiking and camping.

[84]        
Although she has returned to some of her pre-accident activities, Ms. McCarthy
has been unable to camp or kayak since the accident. She has, however, been
able to do other activities, such as swimming and walking, but not in the same
manner she did them in prior to the accident. For example, before the accident Ms. McCarthy
used to swim 50 lengths in the pool, and is now only able to do four. She
has to alternate her strokes as a result of the discomfort she now feels when
trying to swim using her arms. Ms. McCarthy testified she cannot walk as
far or fast as she could before the accident.

[85]        
Finally, Ms. McCarthy’s evidence was that her relationships with
her family and friends have suffered because she has become socially withdrawn.
She does not want to talk about what she is going through. Ms. McCarthy’s
relationship with her husband has suffered. They no longer share a bedroom
because of her inability to sleep through the night. She is drinking more
alcohol because of the pain. Ms. McCarthy’s evidence is that she has
become more depressed and anxious since the accident.

[86]        
Ms. McCarthy has started a new job at the Comox Valley Senior Peer
Counselling program working nine hours a week, and has worked two three-hour
shifts. She stated she experienced some increased pain after her first shift. Ms. McCarthy’s
evidence is that she currently devotes six hours a day to things she has to do
because of the accident, including fitness, aqua fitness, appointments, icing
and heating the areas of injury, taking medications, putting on topical creams
and resting. Currently she is pursuing active physiotherapy. She testified she
has gained 30 pounds since the accident.

[87]        
A number of her family and friends testified about Ms. McCarthy’s
abilities and attitude both pre and post-accident. They all described her as a
happy and energetic person prior to the accident. They all testified that since
the accident there have been dramatic changes. Ms. McCarthy has become
depressed and is physically restricted in what she can do.

[88]        
Barbara Zineon, a registered nurse, met Ms. McCarthy in 1997. Ms. Zineon’s
evidence is that prior to the accident Ms. McCarthy was cheerful and
physically active. They would walk together with their dogs. Ms. McCarthy
had a big dog that she could handle. After the accident, she was shocked to see
the changes in Ms. McCarthy. Ms. Zineon testified that Ms. McCarthy
was very guarded in the way she moved, and was extremely careful even when they
hugged. She testified that Ms. McCarthy’s mood has changed and she is just
not the person she was before the accident.

[89]        
Heather Holm met Ms. McCarthy when she was training as a nurse. Ms. Holm
described Ms. McCarthy as keen to learn, energetic and having no
difficulty in performing her duties as a registered nurse. Prior to the
accident Ms. McCarthy was uplifting, cheerful and a pleasure to be around.
Ms. Holm described Ms. McCarthy as blunted or muted after the
accident. It was obvious from Ms. McCarthy’s movements that she was in a
lot of pain. Ms. Holm described geriatric nursing as physically demanding.

[90]        
Elaine Lockhart has known Ms. McCarthy for 20 years. She
described Ms. McCarthy as energetic, extremely optimistic and a joy to be
involved with. Ms. Lockhart has visited with Ms. McCarthy on a number
of occasions since the accident. She describes Ms. McCarthy as depressed,
unenergetic and not as socially engaged after the accident.

[91]        
Julia Steele, another registered nurse, who knew Ms. McCarthy both
before and after the accident testified. She worked with Ms. McCarthy for
about six years on the geriatric ward at St. Joseph’s Hospital. She
described Ms. McCarthy as bubbly and vivacious before the accident. Ms. McCarthy
had no restrictions on her physical abilities. After the accident she noticed a
vast change in Ms. McCarthy. She appears stiff and uncomfortable. Her mood
is fragile, and she is quick to tire.

[92]        
Ms. McCarthy’s family also testified. Her children all testified
regarding the changes they had seen in their mother.

[93]        
Steven’s evidence was that his mother had put on weight and is less
active since the accident. Since the accident his mother has been depressed,
and she is drinking more than she did beforehand. She goes into her bedroom and
withdraws from them which she did not do before the accident.

[94]        
Ms. McCarthy’s daughter Caitlin testified that her mother has
become more withdrawn since the accident. Ms. McCarthy is not as active as
she was before the accident. She no longer kayaks or goes to the beach. She
appears depressed and is drinking more than she did prior to the accident. Caitlin
commented that her mother cannot do much. For example, if she goes grocery
shopping she comes home and lies down with ice packs.

[95]        
Ms. McCarthy’s son Basil was waiting for his mother and saw the accident
occur as she was pulling over to pick him up. He described the accident as a vicious
collision. After the accident, Basil ran over to his mother to check on her. He
described her as disoriented, startled and scrambled. Basil testified that
since the accident his mother has changed. She is not as happy and becomes
tearful easily. Prior to the accident she was very happy and energetic. Ms. McCarthy
did a lot of volunteer work at the high school and would drive the teams
anywhere. According to Basil his mother loved taking on challenges.

[96]        
Ms. McCarthy’s husband also testified regarding the changes in his
wife. His evidence is that prior to the accident, she was happy and up for
anything. Since the accident, she has changed dramatically. She is depressed,
and has trouble sleeping. He described how depressed she became when she could
not return to work as a registered nurse and lost her registered nurse status.

[97]        
In my view, both the medical evidence and the lay witnesses support Ms. McCarthy’s
evidence that the accident has had a profound effect on her life. The defendant
argues that Ms. McCarthy is back to her pre-accident mental state because
her dosage of antidepressants has returned to the same level it was prior to
the accident based on the MSP printouts.

[98]        
The evidence does not support the defendant’s argument that Ms. McCarthy
has returned to her pre-accident mental functioning. It is clear from the
evidence that the medication alleviated Ms. McCarthy’s mood swings and
depressions prior to the accident but has not since the accident. Ms. McCarthy,
her family and the other lay witnesses testified regarding her changes in mood
and energy level since the accident. It is apparent from the evidence of the
lay witnesses, including those who worked with her, that prior to the accident Ms. McCarthy
was an outgoing, happy and energetic person. It is clear from the evidence of
the lay witnesses that she has not returned to her pre-accident mental state.
Rather, she has changed dramatically, and has become withdrawn, depressed and
anxious.

[99]        
As set out earlier, the defendant’s expert psychiatrist, Dr. Miller,
agreed that Ms. McCarthy is suffering chronic pain secondary to the
injuries she sustained in the accident, and has developed symptoms of
depression and anxiety secondary to the accident. Dr. Miller also agreed
that she needs psychological assistance to address how to cope with her chronic
pain and the associated medical symptoms.

[100]     As well,
as set out earlier, the evidence establishes that the probable cause of the chronic
pain in her neck and back are the injuries Ms. McCarthy sustained in the
accidents which rendered her previously asymptomatic degenerative spine
condition symptomatic.

[101]     I have
reviewed the various cases provided by counsel regarding the appropriate range
for general damages. As stated earlier, the defendant’s cases are based on the
arguments that Ms. McCarthy’s low back and hip problems were not caused by
the accident, and that she has recovered psychologically. However, as stated
above, the evidence does not support those arguments.

[102]     In my
opinion, the cases of Schellak and Foran deal with injuries that are
more similar to the injuries suffered by Ms. McCarthy, than the cases
relied upon by the defendant. The general damage awards in both cases would
have a value in today’s dollars of $100,000.

[103]     Having
considered the extent of the injuries, the fact that the symptoms have been
ongoing four years with little improvement, the guarded prognosis for full
recovery, as well as the authorities, I am of the view that the appropriate
award for non-pecuniary damages is $100,000.

What amount, if any, should be awarded for the loss of past and future earnings
or income earning capacity?

Past Loss of Income and Income Earning Capacity

[104]     Ms. McCarthy
advances a claim for past loss of income and income earning capacity in the
range of $144,000 to $200,000. Ms. McCarthy says her plan at the time of
the accident was to continuing to work part time as a registered nurse until
her youngest child left the home, and after that she was going to work full time
as a nurse. Ms. McCarthy says based on the evidence she would have been
employed full time as a nurse after September 2012.

[105]     The
defendant takes the position that the evidence does not establish Ms. McCarthy
would have started working full time when her youngest child left home. The
defendant says that past behaviour is the best predictor of the future, and
that any award for past loss of income or income earning capacity should be
based on Ms. McCarthy continuing to work part-time. As well, the defendant
submits that any income Ms. McCarthy earned during the period from the
date of the trial should be deducted. Ms. McCarthy earned approximately
$4,500, resulting in a past income loss of approximately $137,376.

[106]     In Smith
v. Knudsen, 2004 BCCA 613, the court confirmed the approach to be taken to
hypothetical events such as loss of opportunity for past and future earnings. A
plaintiff must prove that an injury had an effect on her ability to earn income
on a balance of probabilities, but once that has been established, hypothetical
events need not be proved on a balance of probabilities. Rather, they are to be
given weight based on their likelihood.

[107]     In my
view, the evidence supports the defendant’s position that it is unlikely Ms. McCarthy
would have commenced full time employment as soon as her youngest child left
the family home.

[108]     Ms. McCarthy’s
earnings as reflected on her income tax returns between the time she obtained
her nursing certificate up to 2010 were as follows:

[109]     Ms. McCarthy’s
evidence is that the reason for the reduction in earnings in 2008 and 2009 was
the illness and death of her aunt and father. Ms. McCarthy’s evidence that
she would reduce her shifts at work for family reasons is consistent with the
evidence of her work pattern throughout her adult life. The evidence is that Ms. McCarthy
worked full time briefly prior to having her first child. Afterwards, she
worked part time from time to time at a variety of positions.

[110]     Ms. McCarthy’s
evidence is that following the receipt of her nursing certificate she never
applied for any full time nursing positions, and would turn down shifts at her
two casual jobs if she had prior family commitments.

[111]     I agree
with the defendant that it is unlikely Ms. McCarthy would have suddenly been
both willing and able to transition into full time nursing when her youngest
child left home. Since 1990 she has never worked full time, although she did
attend her nursing course full time. There was no indication that Ms. McCarthy
was working increased hours prior to the accident. Rather, the hours she was
working had decreased consistently since 2006. The fact she did not increase
her hours or work full time at any point after completing the full time nursing
course is indicative that for various reasons Ms. McCarthy neither
motivated nor prepared to work full time. In my view, the evidence supports the
defendant’s position that it is unlikely Ms. McCarthy would have returned
to full time work as soon as her youngest child left home.

[112]     Having
considered all of the evidence, I conclude the appropriate award for past loss
of income is $137,376.

Future Loss of Income or Income Earning Capacity

[113]     I turn
next to the issue of future loss of earning capacity. Ms. McCarthy
advances a claim for $954,751 under this head of damages on the basis she would
have worked full time as a registered nurse until age 65. She is now limited in
her ability to earn income. Ms. McCarthy takes the position her residual
ability to earn income is 20 hours per week at approximately $15 per hour,
which is more optimistic than her current employment status.

[114]     The
defendant takes the position that the evidence supports a finding that Ms. McCarthy
will be able to work full time in the future at a more sedentary job. The
defendant submits Ms. McCarthy could potentially work in less physically
demanding nursing jobs, in bookkeeping, in business receptionist’s jobs or
sales. The defendant says Ms. McCarthy has a clear residual income earning
capacity and with appropriate retraining could earn very significant income.
The defendant submits an appropriate award for Ms. McCarthy’s reduction in
future earning capacity is in the range of $75,000 to $125,000.

[115]    
In Perren v. Lalari, 2010 BCCA 140, the court noted that the
first inquiry in dealing with a claim of this nature is whether there is a
substantial possibility of future income loss. The court stated at para. 32:

A plaintiff must
always prove, as was noted by Donald J.A. in Steward, by Bauman
J. in Chang, and by Tysoe J.A. in Romanchych, that there
is a real and substantial possibility of a future event leading to an income
loss. If the plaintiff discharges that burden of proof, then depending upon the
facts of the case, the plaintiff may prove the quantification of that loss of
earning capacity, either on an earnings approach, as in Steenblok, or a
capital asset approach, as in Brown. The former approach will be more
useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment. That was the
case in both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[116]    
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144, the court discussed the assessment of an award for a loss of future
income as follows:

[32] In my view comparator cases are of limited utility in
the assessment of awards for future losses, generally. It is well settled that
an individual’s earning capacity is a capital asset: Parypa v. Wickware,
1999 BCCA 88 at para. 63. An award for future loss of earning capacity thus
represents compensation for a pecuniary loss. It is true that the award is an
assessment, not a mathematical calculation. Nevertheless, the award involves a
comparison between the likely future of the plaintiff if the accident had not
happened and the plaintiff’s likely future after the accident has happened: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995]
B.C.J. No. 644 (C.A.) at para. 8. The degree of impairment to the plaintiff’s
earning capacity depends upon the type and severity of the plaintiff’s injuries
and the nature of the anticipated employment at issue.

[33] In valuing the award, the judge must consider the likely
duration of the plaintiff’s prospective working life and must account for
negative and positive contingencies which are unique to each case. The final
award must be fair and reasonable in all the circumstances. This assessment
requires a very fact-intensive, case-specific inquiry. I am persuaded by what
Macfarlane J.A. said in Lawin v. Jones, 98 B.C.L.R. (2d) 126, [1994]
B.C.J. No. 2107 at para. 35, about the lack of utility in comparisons to other
cases:

[G]iven the fact that we cannot foresee the future, it is
impossible in a case like this to find any comfort in resort to other cases
where the future may be more predictable. Judges will differ, perhaps widely,
in making assessments in cases which have been said to depend on what may be
seen in a crystal ball. What is certain is that a trial judge who hears and
observes the witnesses is in a much better position than an appellate judge to
come to a conclusion as to what is fair and reasonable in the circumstances.
…

[117]     Ms. McCarthy
asserts that she has demonstrated there is a real and substantial possibility
of a future event leading to an income loss. She says based on the expert
evidence, it is apparent she has functional impairments which will likely continue
to impact her ability to perform any physical jobs, and in particular the
physical aspects of any nursing position. She points to the fact Fiona Fleming,
a functional capacity evaluator, concluded that as a result of her neck, back
and shoulder problems, she has diminished capacities.

[118]     Ms.
Fleming opined that the most significant limiting factors are that her pre-accident
positions required Ms. McCarthy to be on her feet for the duration the day
with frequent reaching and stooping demands. Ms. McCarthy demonstrated
marked reduced tolerance for these positions. The disparity between the
postural tolerances of the job and Ms. McCarthy’s demonstrated performance
indicated that she is not fit to work as a registered nurse, either part time
or full time.

[119]     However, Ms.
Fleming was of the opinion Ms. McCarthy could return to work in a more
sedentary position that could accommodate her need to take breaks and to
stretch. At the time Ms. Fleming assessed Ms. McCarthy in January 2013,
she was of the opinion that Ms. McCarthy is likely not a candidate for
full time work, rather part time work may be more functionally realistic for
her, i.e. four hour shifts three times per week, as long as the days were not
consecutive.

[120]     Ms.
Fleming’s opinion differs from the opinions of Drs. Werry and Dommisse, both of
whom were of the opinion that Ms. McCarthy could potentially return to a
nursing position. However, Ms. McCarthy has lost her status as a
registered nurse because she has been unable to work sufficient hours to
maintain her registration. The evidence is that Ms. McCarthy would have to
retrain and meet the physical requirements necessary for a registered nurse
prior to becoming reinstated.

[121]     Neither Dr. Werry
nor Ms. McCarthy’s experts were of the view that Ms. McCarthy can return
to a physically demanding position. Given the physical requirements for a
registered nurse described by Ms. McCarthy and the lay witnesses who were
registered nurses, as well the job requirements outlined in Ms. Fleming’s
report, I am of the view it is unlikely that Ms. McCarthy will be able to become
reinstated as a registered nurse.

[122]     Based on
the expert evidence that Ms. McCarthy’s back and neck problems are chronic
and the guarded prognosis, I find she has established there is a real and
substantial possibility that she will be unable to return to a nursing position,
which would lead to an income loss.

[123]     Turning
next to the assessment of her loss, the expert evidence is that Ms. McCarthy
will be able to work part time in the future, and is currently working part time.
As stated earlier, I am of the view that it is unlikely that Ms. McCarthy
would have commenced nursing full time after her youngest child left home.

[124]    
It is my view that since Ms. McCarthy has lost her ability to work
as a registered nurse, but has a residual capacity to work, that her loss is
not easily measurable. Accordingly, the earnings approach is not appropriate,
and the capital asset approach should be used to assess her future loss.

[125]    
In Perren at para. 11, the court confirmed that the approach
to be taken for a future loss of earning capacity in situations where the loss,
though proven, is not measurable in a pecuniary way is the one set out in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at p. 4:

The means by which the value of the lost, or
impaired, asset is to be assessed varies of course from case to case. Some of
the considerations to take into account in making that assessment include
whether:

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

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

3. The plaintiff
has lost the ability to take advantage of all job opportunities which might
otherwise have been open to him, had he not been injured; and

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

[126]     In
conducting the analysis under this head the court then has to consider the
contingences, both positive and negative which are applicable in arriving at a
final sum.

[127]     In my
view, Ms. McCarthy has established that it is unlikely she will be able to
return to work as a registered nurse. As well, she has established that she has
been rendered less capable overall from earning income from all types of
employment, she is less marketable and attractive as an employee, and she may
not be able to take advantage of all job opportunities. It was evident from her
testimony and that of her husband that Ms. McCarthy is less valuable to herself
as a person as a result of her diminished capacity, and in particular her loss
of her registered nurse status.

[128]    
The defendant has provided an expert report calculating that if Ms. McCarthy
had carried on working 60% of a full time nursing job, the net present value of
her earnings to age 65 would be approximately $674,519.

[129]    
While the defendant argues that Ms. McCarthy has a residual capacity
to work as a registered nurse in a different position, as set out earlier, the
evidence does not support that conclusion. However, she does have a residual
capacity to work at a more sedentary job. Although the defendant asserts that Ms. McCarthy
could earn more than $20 per hour, that argument is based on her returning
to work as a registered nurse. Currently she is earning $15 per hour. In
my view, the evidence supports a finding that Ms. McCarthy has a residual
ability to earn between $15-$20 per hour, which is approximately 40-50% of what
she would earn if she was able to continue to work as a registered nurse.

[130]     Having considered
all of the evidence, including the evidence that Ms. McCarthy will be able
to work part time in the future, it is my view that the appropriate award for
future loss of earning capacity is $350,000.

Cost of Future Care

[131]     Ms. McCarthy
is advancing a cost of future care in the amount of $331,488, based on a report
prepared by Mair Edwards, an expert in the area of occupational therapy.

[132]     The
defendant submits that many of the items contained in Ms. Edwards’ reports
are neither medically justified nor reasonable. The defendant takes the
position that the appropriate award for cost of future care is $39,175.

[133]     Cost of
future care is established if there is a medical justification for the claim,
and the claim is reasonable: Aberdeen v. Zanatta, 2008 BCCA 420 at para. 42.

[134]     Measures
that provide some solace but are not likely to result in medical improvement
ought to be compensated for under the head of general damages rather than an
expense that is compensable as a cost of future care: Harrington v. Sangha,
2011 BCSC 1035 at para. 153. As well, services that a plaintiff has not
used and not sought out in the past should not be awarded as the plaintiff will
be unlikely to avail herself of them in the future: Izony v. Weidlich,
2006 BCSC 1315 at paras. 73-74.

[135]    
In Penner v. Insurance Corporation of British Columbia, 2001 BCCA
135 at para. 13, the court noted that common sense should inform awards of
costs of future care:

Ms. Katalinic drew our attention to the Court’s comments in Travis
v. Kwon, 2009 BCSC 63, where Johnston J. said this about claims for damages
for future care costs:

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

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

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

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

[136]     The cost
of future care being claimed by the plaintiff, the defendant’s position
regarding each item and who recommended or commented on the item, are set out
in the following chart:

[137]     The
defendant submits that wherever Ms. Edwards’ recommendations differ from
services or aids for future care recommended by medical doctors, the
recommendations of the medical doctors, particularly specialist doctors should
be preferred.

[138]     I agree
that the recommendations of the doctors should be preferred when it is contrary
to Ms. Edwards’ recommendations, particularly in regards to physiotherapy
and medications.

[139]     Ms.
Edwards recommends rehabilitation programs, including physiotherapy, pool
program, gym pass, Pilates, yoga, and acupuncture. The doctors have recommended
increased exercise and active physiotherapy. Some award for future active
physiotherapy is appropriate, but none of the medical doctors recommend ongoing
passive physiotherapy for 15 years. Ms. McCarthy’s evidence is that
she is pursuing active rehabilitation.

[140]     Ms. McCarthy’s
evidence was that she tried acupuncture and did not find it helpful. She has not
sought out either yoga or Pilates, nor has any doctor suggested those forms of
exercise specifically. The defendant agrees with a gym pass, as all of the
doctors have recommended that Ms. McCarthy exercise regularly. In my view,
the appropriate award for the future costs of exercise and active physiotherapy
is $15,000. That amount includes the various exercise programs that have been
recommended, including exercise, swimming and active physiotherapy.

[141]     In my
view, it is also appropriate to make some allowance for future yard work and
house work. The evidence is that Ms. McCarthy can no longer do many of the
heavy tasks she used to do in the yard. Although her husband now assists, there
has been a general decline in the overall house and yard maintenance. While there
is insufficient evidence to justify a yard and home maintenance award in the
amount claimed, it is my view some award should be made to assist Ms. McCarthy
in the heavier chores. Under this head of damage I am of the view that an award
of $20,000 is appropriate.

[142]     None of
the doctors have recommended any of the assistive devices outlined by Ms. Edwards.
There is, in my view, no medical justification for the items under this
heading.

[143]     As well,
in my view, there is no justification for vocational counselling and return to
school. Ms. McCarthy has just started a job she enjoys and is qualified
for. She did not provide any evidence that she was contemplating a change in
career. As well, there is evidence that she has done bookkeeping in the past,
which is another potential sedentary job.

[144]     Ms. McCarthy
is seeking an annualized amount for medication. The amount in Ms. Edwards’
report does not coincide with the current medications Ms. McCarthy is
taking. The evidence is that Ms. McCarthy was taking some of the
medications, namely, the anti-depressants prior to the accident, and would have
continued to take anti-depressants whether the accident had occurred or not.
Another factor to be considered in determining the appropriate amount for future
medication expenses is the evidence that Ms. McCarthy should reduce her
use of medications. Both Dr. Bowler and Dr. Werry have recommended
she should reduce her intake of medication. Part of the reason for the
recommendation for the residential treatment program is to reduce the amount of
medication she is taking and provide her with other skills to cope with the
chronic pain. Having considered all of the evidence it is my view that an
appropriate award for the future cost of medication is $45,000.

[145]     The
defendant has agreed the following items are appropriate cost of future care
items:

·      
Pain clinic – $15,125;

·      
Psychological counselling – $4,050.

[146]     Having
considered all of the evidence, I have concluded the appropriate award for
future care for both one time and annualized expenses is the amount of $99,175.

Special Damages

[147]     Special
damages have been agreed upon in the amount of $11,000.

Conclusion

[148]     In summary,
I have awarded the following amounts:

[149]     I will
leave it to the parties to deal with any tax implications. If they cannot agree,
they are liberty to make submissions. Ms. McCarthy is entitled to
pre-judgment interest on the awards for the past loss of income and the special
damages. As well, Ms. McCarthy is entitled to her costs at Scale B,
subject to submissions.

“Gerow
J.”