IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140812

Docket: 11-3331

Registry:
Victoria

Between:

Judith Katherine
Hill

Plaintiff

And:

Gerald Murray and
Hilltop Greenhouses Ltd.

Defendants

Before:
The Honourable Mr. Justice Macaulay

Reasons for Judgment

[1]            
The plaintiff, Judith Katherine Hill, was in a very
bad car accident on October 26, 2009. At trial, the defendants, Gerald
Murray and Hilltop Greenhouses Ltd., disputed liability; challenged the
underpinnings for some of the most significant medical diagnoses and prognoses
that Ms. Hill received; disputed causation; and finally, quantified her losses
much lower than she did. Within those broad issues are many discrete issues
which I will identify as I address them in my reasons.

Liability

[2]            
On the whole of the evidence, I am satisfied
that the defendant driver, Mr. Murray, was entirely at fault for the
collision. At the material time, Ms. Hill, the lone occupant of her vehicle, a
Toyota Land Cruiser, was driving on Helmcken Road (“Helmcken”) on her way home
from work. She stopped behind a few cars for a red light at the intersection of
Helmcken and Burnside Road West (“Burnside”). Her direction of travel was
roughly southwest.

[3]            
After the light turned green in Ms. Hill’s
favour, she followed the other cars into the intersection. The collision with
the defendant’s vehicle occurred partway through the intersection.

[4]            
Mr. Murray approached the intersection driving
roughly north along Burnside. The approach was downhill and Mr. Murray had a
good view of the intersection. There was a line of vehicles ahead of Mr. Murray
proceeding in the same direction. The traffic was heavy and the drivers,
including Mr. Murray, were moving ahead short distances, stopping to maintain
their positions and then moving ahead again with the line.

[5]            
On one occasion, as Mr. Murray sought to slow or
stop his vehicle in the line, his right foot stuck between the accelerator and
the brake pedal. He panicked and inadvertently accelerated his vehicle. At the
time, Mr. Murray was close to the rear of the vehicle in front of him so he
pulled out into the oncoming lane of travel, which was traffic free at that
point.

[6]            
Mr. Murray continued towards the intersection in
the wrong lane of travel and against a red light. He was unsuccessful in
extricating his foot and, instead, continued to accelerate the vehicle. At his
examination for discovery, Mr. Murray estimated that his speed was 30 miles per
hour (or 50 kilometers per hour) as he entered the intersection against the
light.

[7]            
After entering the intersection, Mr. Murray first
collided with the front of a northeast-bound vehicle operated by Ms. Cormier.
The Cormier vehicle was a write-off. The Murray vehicle then collided with the
Hill vehicle, following which the two vehicles spun off the northwest side of
the intersection, broke through a railing, plunged over an embankment, and
finally, fell onto a grassy area that was several feet below the road surface.

[8]            
Mr. Murray did not testify at trial. In
examination for discovery, he admitted that he was wearing steel-toed boots at
the time of the accident and that it was not unusual for him to wear them when
driving the vehicle. He further admitted that, on at least one past occasion,
he had caught his foot under the brake pedal in the same manner, yet had
continued to wear the same boots when driving the vehicle.

[9]            
Mr. Murray also admitted that when he first
caught his foot and before changing into the oncoming lane, he had an
opportunity to pull safely off the roadway to his right. Finally, Mr. Murray
admitted that he did not attempt to use the vehicle’s emergency brake.

[10]        
Mr. Murray did not deny to the police, who
attended the accident scene, that he was at fault. Sometime later, Mr. Murray
received, and did not dispute, a violation ticket for driving without
reasonable consideration for other persons using the highway, contrary to s.
144(1)(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

[11]        
Ms. Hill has limited and intermittent memories
of the accident and its aftermath. In chief, she testified that she recalls
being stopped at the red light with a few cars in front of her, then starting
to proceed through the intersection after the light turned green. She remembers
having her hands on the wheel but her next memory is a sensation of falling.
She has no recollection of hitting the ground but recalls getting the sunroof
open and climbing out of the vehicle. She recalls a hissing sound and voices
and noises in the background. Someone told her to sit down and she recalls
hearing a man describing the accident. After a time, someone checked her over.
She required assistance to walk to a stretcher and the ambulance. Viewing
photographs of the accident scene does not refresh her memory.

[12]        
In cross-examination, Ms. Hill did not recall
telling the police of a flash from her left side before the collision. She
agreed that she must have undone her seatbelt before getting out of the
vehicle.

[13]        
None of Ms. Hill’s limited memories are
inconsistent with the other evidence respecting the accident. The photographs
show that the Hill vehicle ended up lying on the left side with the sunroof
open. The vehicle lies parallel to the embankment wall but facing away from its
original direction of travel. After the vehicle was moved to an upright
position, photos demonstrate damage to the left rear side of the vehicle that
could represent the point of collision consistent with the direction of travel.
There is no forensic accident reconstruction evidence but the forces required
to move the Hill vehicle from the roadway to its final resting place must have
been very significant and included some degree of bodily rotation for Ms. Hill
on at least two axes.

[14]        
Apart from correctly asserting that the
plaintiff bears the burden of proof, the defendants made no submissions on the
liability issue. I am satisfied that Mr. Murray knew, or ought to have known,
that the particular boot he was wearing was at risk of sticking under the brake
pedal in his vehicle, yet he continued to drive in that fashion. I am also
satisfied that he missed or failed to attempt any of the much less risky
options that were available to a prudent driver in the same circumstances.

[15]        
In the result, Mr. Murray drove without due care
and attention; moved to the wrong side of the road; failed to obey the traffic
signal; and finally, failed to yield the right-of-way to Ms. Hill who was
proceeding lawfully through the intersection. I find that the Murray vehicle, a
full-sized van, T-boned the Hill vehicle on the rear driver’s side, forced it
off the road and over the embankment where it came to a rest after turning
around and flipping on its side as shown in the photographs. Based on the
photographs, the vertical drop off the embankment appears to be several feet.

[16]        
The defendants are entirely responsible for the
accident. Ms. Hill is entitled to damages for her injuries and losses
attributable to the collision.

Pre-accident Health

[17]        
At the time of the accident, Ms. Hill lived at
Shawnigan Lake with her husband and their three sons, born in 1998, 2002 and
2005 respectively. In September 2009, shortly before the accident, the youngest
child started full-day playschool and in September 2010 entered kindergarten.
The older two were already full-time students at the time of the accident.

[18]        
Before the accident, Ms. Hill was healthy,
strong and athletic. She denied any chronic health issues, although she had
received ongoing treatment for pre-menstrual migraines that she considered
stable. As a child, Ms. Hill was once treated for a concussion. 

[19]        
Ms. Hill worked at Butchart Gardens, the popular
floral display garden attraction in Central Saanich, B.C., before and after the
accident. Before the accident, as part of her work duties, she performed heavy
labour, including carting loads of soil or plants in wheelbarrows and mixing
cement. Her supervisor, Ross McKay, an apparently fit and strong looking man,
described her as almost as strong as him, able to lift heavy trees and shrubs.

[20]        
Ms. Hill was also a runner. She successfully
completed a half marathon in 2008 and again in 2009, shortly before the
accident. She also participated in 10 kilometer races.

[21]        
In the summer of 2009, Ms. Hill went on an
extended holiday to Italy with her best friend, Andrea Davidson. Ms. Davidson
testified that she had never seen Ms. Hill stronger or happier. They
walked everywhere in Rome and hiked in the area of the Amalfi Coast and also in
Cinque Terre.

[22]        
At the same time, an important aspect of Ms.
Hill’s personal life was changing. Her marriage was dissolving. Both she and
her husband worked full-time. He got the children ready for and to school in
the mornings. She picked up or met the children after school, monitored their
activities through the remainder of the day and prepared the evening meal. Ms.
Hill testified that she still had lots of energy as well as some help with the
children from her mother who lived nearby.

[23]        
In cross-examination, Ms. Hill said she and her
husband were already growing apart before the accident, and agreed that he was
sometimes angry and lashed out at her. In late 2008 and early 2009, Ms. Hill
attended three counseling sessions with a psychologist to discuss the stressors
associated with her marriage and help with her decision to fully separate from
her husband. For the better part of the year before the accident, she and her
husband lived apart in the family home. They fully separated shortly after the
accident.

[24]        
Ms. Hill then moved with the children to a
rental house very close to the former home. She acknowledged that the
separation was not easy, but described it as a welcome change.

Injuries

[25]        
After the accident, Ms. Hill went to the nearby
hospital by ambulance. She was assessed by nursing staff and later by a
physician in the emergency department, sent for X-rays of the cervical spine,
chest and left shoulder, all of which were normal, received pain medication and
was eventually discharged to her husband’s care the same day. For the sake of
the chronology, I will set out some evidence from other witnesses who were
present at the scene of the accident, and then return to Ms. Hill’s account of
events.

[26]        
The paramedic who attended Ms. Hill at the scene
testified. He made his chart notes on a patient care report. The elapsed time
between dispatch and his arrival at the scene was five minutes. According to
the paramedic, he assessed Ms. Hill within a few minutes of arriving. He
described her mental status as normal, with a Glasgow Coma Scale of 15 and no
loss of consciousness. The paramedic also noted that Ms. Hill complained of
left side neck pain and being lightheaded. Ms. Hill appeared able to
process information.

[27]        
At the scene, Ms. Hill spoke to Constable Teed.
He recorded that she told him that she was driving southbound on Helmcken,
travelling through the intersection on a green light, when she was struck in
“what felt like the rear driver’s side, and pushed into the ditch.” While in
hospital, Ms. Hill spoke to Constable Gibson, another police officer who
attended the scene. The officer testified, relying entirely on his record of
the conversation. I will paraphrase part of what he recorded. According to the
officer, Ms. Hill told him that she saw a flash from the side and that another
vehicle hit the side of her vehicle without warning before she went over the
wall. The police felt that she was able to communicate.

[28]        
One of the nurses who assessed Ms. Hill at the
hospital also testified. She described Ms. Hill as alert and cooperative,
stable, and moving her limbs well. It is apparent from the testimony of the
emergency room physician who examined Ms. Hill in the hospital that the
primary focus was on gross trauma, that is, whether there were any immediate
threats to life or obvious physical injuries. He also assessed neurologic
functioning and whether Ms. Hill’s mental state was such that she could
converse with him. The doctor prescribed Tylenol, Ibuprofen and Oxycodone, a
narcotic analgesic.

[29]        
I will discuss later in my reasons the
significance of the evidence respecting what Ms. Hill was able to tell others
about the accident as well as her apparent level of consciousness and ability
to communicate.

[30]        
Returning to Ms. Hill’s evidence, according to
her, she had to stop and sit down several times as she left the hospital due to
dizziness. 

[31]        
In the days following the accident, Ms. Hill
felt severe pain, particularly in the mid-back, left shoulder blade area and
neck and she had stiffness and numbness in the neck running down through the
left shoulder and arm to the elbow. Her elbow was sometimes limp and also
twitched uncontrollably. Generally, she was stiff all over, bruised and unable
to move or sit without discomfort. She continued to take pain medication.

[32]        
Ms. Hill also testified that she continued to
feel lightheaded. Her depth perception felt off when she tried to walk and the
ground seemed very distorted. She described feeling “foggy”, not understanding
everything that people said to her and often repeating herself. After a few
days, Ms. Hill tried to play solitaire on the computer but the screen kept
blurring out. She had some double vision and felt nauseous when in a moving
car.

[33]        
In the first few days after the accident, Ms.
Hill suffered flashbacks to vivid images of the accident scene accompanied by a
sense of feeling cold wet grass on her left hand. She also had nightmares.

[34]        
Within about a month, after moving to the new,
quieter home, Ms. Hill became aware of ringing, or tinnitus, in her ears. She
also had bouts of spinning that she now understands to be vertigo. She says these
first commenced soon after the accident.

[35]        
Over time, as the pain lessened, the need for
medication decreased and, acting on the recommendations of her doctors at the
time, having undertaken various therapies, Ms. Hill gradually improved.

[36]        
According to Ms. Hill, she first attended
physiotherapy shortly after the accident and continued until early 2013. The
physiotherapy addressed the muscles of the shoulders, upper back, neck and jaw,
including increasing the range of motion in the left shoulder. The
physiotherapist also administered acupuncture to the neck and jaw muscles.

[37]        
The course of physiotherapy evolved over time
and included the use of a transcutaneous electrical nerve stimulation (“TENS”)
machine at home and during physiotherapy visits for the neck and shoulder.
After Ms. Hill plateaued, physiotherapy was limited to maintaining her
progress.

[38]        
On the recommendation of an eye, ear and nose
specialist she saw several months after the accident, Ms. Hill started
vestibular therapy aimed at assisting her with vertigo, balance and
disequilibrium. Typically, according to Ms. Hill, the therapist assessed her
balance on each occasion, and then directed various exercises, some of which
are done at home. Some of the exercises are intended to mimic movements
associated with Ms. Hill’s work. Ms. Hill stopped going to the vestibular therapist
about six months before trial, but continues to do the self-directed exercises
at home.

[39]        
About two months after the accident, Ms. Hill
was also referred for massage therapy. Initially, most of the massage therapy
was focused on stretching exercises for the neck and upper pectoral areas as
well as for relief of tension and pain. Some of the massage therapy focused on
the jaw as well as on leg muscles that had apparently tightened and stiffened
as a result of the disequilibrium.

[40]        
She attends massage therapy less now than at the
beginning, but continues with massage therapy sessions about twice a month. According
to Ms. Hill, she continues to need the benefits of massage therapy at least
every three weeks. By the end of the gap between treatments, her neck seizes up
and makes it too uncomfortable for her to sleep.

[41]        
Massage therapy has also been helpful for the
headaches that Ms. Hill associates with her neck injury. According to her,
those headaches differ from the migraines that she suffered before the
accident. Ms. Hill described the migraines as being stable before the accident
and associated with her menstrual cycle, but debilitating because they resulted
in an inability to function, feeling nauseous, vomiting and incontinence.
Absent control through medication, the migraines lasted a day and Ms. Hill then
needed several days to recover. Ms. Hill described the migraines as changed
since the accident. They are now more erratic and she can no longer identify
the premenstrual precursor as before the accident. Instead, the migraines now
come on without any warning.

[42]        
At the time of the accident, Ms. Hill took a
prescription drug, Maxalt, for the migraines. By the time of the trial, Ms.
Hill was taking another prescription drug, Zoloft, and found that it decreased
the frequency of her migraines.

[43]        
According to Ms. Hill, the headaches associated
with her neck injury are manageable but occur much more frequently than the
migraines. A number of circumstances appear to trigger the headaches. These
include working all day, being in a busy environment, and being over stimulated
or overloaded. Ms. Hill generally treats these headaches with non-prescription
Advil or Motrin, using a heat bag to release the neck muscles and moving to a
quiet environment.

[44]        
Since the accident, Ms. Hill has participated in
a ten-month program for trauma and brain injured patients that focused on
strategies for managing fatigue and cognitive issues. She was discharged at the
end of that program in January 2013.

[45]        
In addition, Ms. Hill received private
psychological treatment about once per month, including pain management and
distraction techniques, cognitive behavioural therapy, reframing negative
beliefs and emotions and affirming intact abilities. These sessions continued
at approximately three week intervals by the time of trial.

[46]        
In about January 2013, Ms. Hill’s family doctor
prescribed Ativan, an anti-anxiety medication. She never used the entire
prescription but was then placed on Zoloft. According to Ms. Hill, these were prescribed,
in part, to help her anxiety associated with her recent examination for
discovery and its focus on the accident. She was also dealing with the effect
of her boyfriend taking a new job out of town. Ms. Hill did not tolerate the
medications well and, by the early fall 2013, she and her doctor decided to
wean her off the Zoloft. It was during that process that Ms. Hill discovered
that Zoloft in a low dosage assisted with migraine control and, as a result,
she has continued on the reduced dosage since.

[47]        
Ms. Hill denies any ongoing daily anxiety
problems except in relation to driving. Otherwise, she manages daily stressors
by employing the tools acquired during her psychological treatment. She further
denies any difficulty coping with daily life before the accident.

[48]        
Ms. Hill has obtained a number of assistive
devices during the course of her treatment and recovery. These include grab
bars in the shower, because she is unsteady when she closes her eyes and leans
back to wash her hair; handrails in the home for balance; walking poles for
walking on uneven terrain, or at night; a molded pillow for neck support; ear
attenuators for noisy environments; a mouth guard to relieve jaw clenching; and
various memory aids such as a white board for notes, a daily calendar and a medication
organizer. She has also acquired various pieces of equipment for her home-based
exercises.

[49]        
Ms. Hill continues to drive but finds it
difficult. After the accident, Ms. Hill had problems with her depth perception
but this has apparently improved or resolved. Sometimes Ms. Hill feels
overwhelmed and confused when driving. This has caused her to stop and walk on
at least one occasion. She now avoids driving in poor weather conditions,
although that was not a problem before the accident. She also startles more
easily.

[50]        
Although Ms. Hill used to enjoy driving, she now
finds the one hour commute over the Malahat to get to and from work fatiguing
and aggravating to her neck. She now needs to take breaks if she is required to
drive longer distances. To avoid driving the long route over the Malahat, Ms.
Hill now takes the Mill Bay ferry. This reduces her actual driving time one-way
to about 15 minutes and assists her in completing her work day.

[51]        
Ms. Hill describes her present activity level as
limited. She expends her energy on therapies and exercising. She has tried
running a few times but cannot maintain her balance. She tried riding a bike
but fell over at low speed. If she plays with the children at the community pool,
the waves make her nauseous. Hiking is a struggle but she can walk with the
children on uneven terrain if she uses her walking poles. In general, Ms. Hill
says that she has not been able to return to activities that she used to enjoy.

[52]        
Disequilibrium and balance continue as daily problems.
She must be careful on steps, particularly if she is carrying something like
the laundry basket. At work, repetitive twisting and bending aggravate the
disequilibrium. She is unstable in the dark and avoids going out at night for
that reason. When she does go out, she takes a walking pole.

[53]        
Ms. Hill describes her symptoms of
disequilibrium, or instability, in an unusual way. According to her, it occurs
daily. She experiences it walking in low light or at night; in busy
environments, for example, at the local museum, where the black and white tiled
floor “popped out” at her so she had to leave; other places where there are
high contrast colours or busy designs; and finally, on boardwalks.

[54]        
Ms. Hill has fallen several times since the
accident. Most have not been serious, although she sprained her ankle in 2011
and, on another occasion, broke a toe. If she is in a squatted position, the
touch of a child is sufficient to knock her over. Ms. Hill has fallen in the
kitchen at home and a couple of times at work. She finds, when she falls, that
she does not break her fall with her hands. She has rarely sought medical
attention for the falls.

[55]        
At home, Ms. Hill’s boyfriend and her eldest son
help out with household tasks and yard maintenance. Ms. Hill usually cooks the
evening meal but focuses on easier, often less nutritious, production on the
days that she is working. She does not carry the laundry basket. A housekeeper
now comes every two weeks and helps by cleaning floors, mopping and vacuuming;
cleaning in the bathroom; and changing duvet covers on the beds. Before the accident,
Ms. Hill handled these matters on her own.

[56]        
Ms. Hill describes herself as very inactive at
home; she wants to nap but cannot always do so. She rarely helps the children
with their homework.

[57]        
Ms. Hill describes the ongoing fatigue as
overwhelming. She does not awake refreshed after sleep, even if she sleeps
well. Rather than invigorating her, as it did before, exercise also fatigues
her.

[58]        
Reading a book is difficult because the text may
be out of focus. She does not retain the information and often has to re-read
the page several times before she grasps it. Reading on the computer screen is
similar, but there is an added problem with scrolling which leads to her
feeling nauseous.

[59]        
There was no successful challenge during
cross-examination to Ms. Hill’s evidence respecting the timing or nature of her
complaints. Ms. Hill maintained that her migraines were more intense after the
accident than before and that they occur without warning, rather than
pre-menstrual. She denied continuing to have pre-menstrual migraines. Ms. Hill
was unable to recall whether she complained to her family doctor about her
memory or dizziness problems at any time before they are referenced in the
doctor’s chart notes. Ms. Hill did not resile, however, from her evidence
respecting the time at which she first noticed the problems. She did not agree
that her balance issues worsened over time.

[60]        
I turn next to Ms. Hill’s evidence about her
work history and future employment plans, both before and after the accident as
well as other evidence respecting her employment. Ms. Hill commenced part-time
employment at Butchart Gardens in 1991 after completing a year of university.
All positions at Butchart Gardens are non-unionized. By 1993, Ms. Hill had a
full-time seasonal position and since 1995, has had a full-time position as a
gardener. She became an assistant supervisor in the greenhouse section in 1999
and has held that position ever since.

[61]        
Following the birth of each of her three
children, Ms. Hill took maternity leave, during which time she received Employment
Insurance benefits, rather than salary. The maternity leave following the birth
of the youngest child extended a year from August 2005 to August 2006, after
which Ms. Hill returned to work three days per week. The partial hours resulted
in an adjusted monthly salary of $2,548.13 (60% x $4,246.88) or
$30,577 annually.

[62]        
According to Ms. Hill, her plan throughout the
infancy of the youngest child was to continue working 60 percent of full-time
for three years, and then increase to four days per week (80 percent) in
September 2009 before finally returning to full-time work in September 2010
when the child turned five and started kindergarten. Ms. Hill also testified
that she had made arrangements with her husband and her parents to assist, as
necessary, with childcare responsibilities so that she could carry through with
this plan. She also testified that she had made the necessary arrangements at
work before the accident. Nonetheless, the plan did not work out as expected.

[63]        
Ms. Hill delayed the September 2009 transition
to working four days per week as her son was having difficulties with his own
transition into play school. In the result, Ms. Hill, with the agreement of
Butchart Gardens, rescheduled her return to 80 percent from September to
November 2009. The return to four days per week did not happen at that time
because the accident intervened.

[64]        
Before the accident, Ms. Hill planned to
continue working at Butchart Gardens for the foreseeable future and felt that
at some point she had a good chance of being promoted to supervisor. Although
the number of positions potentially available for promotion is small, she hoped
that her supervisor, Mr. McKay, would apply for the manager’s position when the
incumbent retired and that she could then apply for his position. Although Ms.
Hill had expected the manager to retire within a year or two of 2009, that has
not yet happened.

[65]        
The manager continues to work and has apparently
delayed her own retirement plans. Accordingly, the necessary sequence of events
has not happened and there is no evidence that it will in the near future.

[66]        
I turn next to Ms. Hill’s work history since the
accident. Over a period of time, commencing about one month after the accident,
Ms. Hill undertook a gradual return to work three days per week. Since October
2013, she has worked four days but only for six hours a shift. This has allowed
her to maintain a 60 percent work week throughout. At no time since the
accident has she increased her work week beyond 60 percent of full-time.

[67]        
In Ms. Hill’s view, the current schedule works
well. Before the change, she was often unable to complete a full eight-hour
shift. Now, she is less fatigued by the end of the day.

[68]        
As time passed following her return to work and
Ms. Hill’s recovery progressed, she was able to identify her continuing
difficulties. These included lifting and other heavy physical tasks such as
using the wheelbarrow. Now, Ms. Hill can only do heavy physical work for a
limited period of time without aggravating her shoulder and neck areas.

[69]        
Even somewhat lighter duties in the greenhouse
generate problems. The repetitive bending and twisting associated with moving
crops, often by the truckload, aggravate her balance problems, fatigue level
and nauseousness.

[70]        
Ms. Hill can do computer work but finds that it
takes her longer. Sitting in a chair is uncomfortable. Scrolling text is
challenging.

[71]        
The greenhouse workers at Butchart Gardens use
three fifty-foot-long side-by-side rolling benches for picking out and
transplanting seedlings. Ms. Hill struggles to stand in one spot and finds that
the movement of the benches makes her “wooshy” and nauseous, almost to the
point of vomiting.

[72]        
Ms. Hill now generally works alone. She also
breaks up her work tasks and does not spend a complete shift on a single task
as other employees do. She no longer does any cement work; does not assist with
winter snow removal; and, because she is unsteady in the dark and needs a
walking stick, her employer has excused her from night shifts. While Ms. Hill
is still a highly valued employee, she is also fortunate that her employer is
very accommodating.

[73]        
The evidence of family members, friends and
associates who Ms. Hill relies on to demonstrate the effects of the accident on
her physical well-being, cognition and emotional state is impressive and
helpful. Ms. Hill’s contention that she suffered a concussion or mild traumatic
brain injury (“MTBI”) as a result of the accident relies heavily on her
reporting to various doctors and therapists largely invisible symptoms such as
pain, partial amnesia, forgetfulness, dizziness, balance issues and
fatigability. Leaving aside questions of causation, the evidence discussed
below satisfies me that others noticed Ms. Hill having problems of the type
that she described after the accident and continuing to the time of trial.

[74]        
It is also apparent from this evidence that Ms.
Hill did not have any of these problems before the accident. To the contrary, friends
and associates consistently described Ms. Hill before the accident as a well-balanced,
vibrant, strong, energetic and highly competent individual. Now, as Hayley
Clarke, a work associate and friend, says, Ms. Hill’s “glow is gone” and she
“may as well have a different name.”

[75]        
In addition to Ms. Clarke, the other Butchart
Gardens work associates who testified were Richard Los, the Director of
Horticulture; Ross McKay, Ms. Hill’s Supervisor; and Sue Campbell, a greenhouse
technician like Ms. Clarke. The family members who testified were Joyce Hill
and Alyssa Doran, respectively the plaintiff’s mother and one of her sisters.
The final witness in this category is Andrea Davidson, the plaintiff’s
long-term, very close friend, who testified that the vibrant person she has
known since age 14 is now “missing.”

[76]        
None of this evidence was successfully
challenged on cross-examination. I will set it out briefly for each witness.

[77]        
The plaintiff’s mother, Joyce Hill, is 75. She
and her husband had seven children, including the plaintiff. They host the
extended family for weekly Sunday brunches. Joyce Hill describes the plaintiff
as an active person before the accident with amazing energy and enthusiasm.
Since the accident, her daughter avoids the apparent overstimulation associated
with the large family gatherings. The plaintiff struggles when she tries to
make sense of conversation and forgets some things. At family gatherings, Ms.
Hill now goes outside on her own to escape the crowd and, when she returns,
appears unable to recall the discussion. Her mother has observed the plaintiff
lose her balance in the kitchen and described her as a “wall-walker” now.

[78]        
Joyce Hill corroborated the plaintiff’s evidence
about the family childcare arrangements that were arranged before the accident
for the plaintiff’s youngest child.

[79]        
Alyssa Doran shares the plaintiff’s interest in
gardening and used to rely on her for information and advice. Now, when Ms.
Doran asks about plants, Ms. Hill appears to have difficulty remembering
information of a type that was readily accessible to her before the accident.

[80]        
Ms. Doran confirmed that, since the accident,
the plaintiff now uncharacteristically absents herself from family gatherings.
Generally, the plaintiff does not contribute the way that she used to,
including in physical activities and trips involving the children. Ms. Doran
has observed Ms. Hill having to put a hand out to steady herself before a
simple act like drinking coffee.

[81]        
Ms. Doran testified that the plaintiff is no
longer vibrant and energetic. She has become a completely different person and,
as a result, the connection between the two sisters is lessening.

[82]        
Ms. Doran has also observed Ms. Hill’s apparent
memory problems. When they talk, the plaintiff is seemingly unaware that the
conversation is very repetitive.

[83]        
Andrea Davidson has been a close friend of Ms.
Hill since their teens. They lived near one another, attended the same school
for a time and raced road bikes together. Their close relationship has
continued to the present even though Ms. Davidson now lives on the Lower
Mainland. The two women typically visit several times a year and went on the
trip to Italy in the summer of 2009. I accept Ms. Davidson’s evidence
respecting Ms. Hill’s physical and emotional health: in short, that Ms. Hill
was strong and happy in the period leading up to the accident in spite of the
fact that she had decided to separate from her husband.

[84]        
Ms. Davidson’s observations of Ms. Hill since
the accident mirror those of the family members. She has observed fatigability,
memory struggles and lack of participation in social gatherings. Ms. Davidson
feels like she has lost her best friend; they cannot communicate on a deep
level anymore; the spark is no longer present. As a result, part of the
relationship is now missing and Ms. Davidson has to initiate continuing
contact.

[85]        
Hayley Clarke is a greenhouse technician at
Butchart Gardens. She has worked with Ms. Hill for about ten years. Before the
accident, they shared a social relationship as well, including running
together. Ms. Clarke described Ms. Hill as a “bubbly, happy, outgoing” person
before the accident who was a very knowledgeable plant information source at
work. The person who returned to work after the accident was different. Ms.
Hill no longer joins staff for lunch. She is withdrawn and appears overwhelmed
when there are too many people around her.

[86]        
About three times, Ms. Clarke has observed Ms.
Hill grab benches to steady herself as she walks around the gardens. Ms. Hill
can no longer pick up large pots by herself as she could before the accident.
She works alone, apart from her co-workers. She needs help with wheelbarrows or
picking up things and moving them.

[87]        
Ms. Clarke described Ms. Hill as a
non-complainer but she can tell by her appearance when she is having a bad day.
According to Ms. Clarke, the plaintiff has lost her glow. She is no longer the
easy-going, active person that the witness would have hung out with. 

[88]        
Sue Campbell is also a greenhouse technician at
Butchart Gardens. She has known Ms. Hill since 1996. They also had a social relationship
outside of work before the accident based on their shared interests in botany,
marine biology, camping and kayaking. She also used to rely on the plaintiff as
a plant information source. 

[89]        
Since the accident, Ms. Hill largely works
alone; she is much more quiet and no longer energetic, vivacious and fun. It
now takes Ms. Hill longer to answer questions; her memory appears worse; and
she sometimes struggles to understand straightforward instructions. Ms.
Campbell was obviously distraught during her evidence as she described the
changes in her good friend and work associate.

[90]        
Ross McKay is Ms. Hill’s immediate supervisor at
work. He described her, before the accident, as very energetic, knowledgeable
and enthusiastic. She was strong, both physically and mentally, almost as
strong as him, capable of lifting heavy trees and shrubs. Ms. Hill was fun to
work with.

[91]        
Although Ms. Hill continues to be a valuable
member of the team, she is not as reliable, cannot work with Mr. McKay and
cannot do manual labour. Sometimes, Ms. Hill appears worn out when she starts
work. Like others, he described her as having lost her spark. Although Ms. Hill
does some jobs on her own, he cannot rely on her the way that he used to.

[92]        
Mr. McKay has completed or provided information
for Ms. Hill’s performance reviews in 2011 to 2013. For the most part, the
reviews rate Ms. Hill as exceeding requirements (very good), although the
categories, for example, performance, punctuality, appearance, attention to
detail and service, all appear somewhat generic. In my view, the performance
reviews do not provide a helpful analysis of Ms. Hill’s specific strengths and
weaknesses.

[93]        
In cross-examination, Mr. McKay, who is
currently 53, stated that he has not decided whether he would apply for the manager’s
position if it becomes available. He also stated that there is another
assistant supervisor in addition to Ms. Hill. If Mr. McKay’s own position
becomes available, both assistant supervisors would be eligible to apply for
the promotion.

[94]        
Richard Los is the Director of Horticulture at
Butchart Gardens. He is justifiably proud of the 100-year history of the
gardens as well as the manner in which the company treats its employees. Of the
50 year-round staff, many have worked there more than 25 years. Employees often
work past age 65. At present, there are six, with the eldest now turning 78.

[95]        
It is apparent that Mr. Los holds Ms. Hill’s
creative artistic talents in high regard. The company has relied heavily on her
for off-site garden shows. Although Ms. Hill, as an assistant supervisor, is
expected to work a 40-hour week, the employer is flexible and has accommodated
her needs. Essentially, Ms. Hill is permitted to do what she can when she can.
In the result, Ms. Hill does not perform supervisory duties as would otherwise
be the case and is not as productive as would otherwise be expected.

[96]        
Before the accident, Mr. Los expected Ms. Hill
to return to four days per week at the end of her maternity leave and had
budgeted for that return. He also expected that, at some later point, she would
return to full-time work.

[97]        
Mr. Los agreed, in cross-examination, that Ms.
Hill had returned to only three days per week after each of her three maternity
leaves and that establishing child care arrangements was a necessary prerequisite
to increasing her hours to four or five days per week. He also agreed that he
met with Ms. Hill once, in early 2005, to review concerns that her sick leave
exceeded company policy over the previous year. It appears from Mr. Los’s file
note that he was satisfied with the explanation. There is no evidence of
unusual sick leave use thereafter. Indeed, Mr. Los testified that, assuming Ms.
Hill recovers and is capable of working full-time, she is eligible for
promotion in the organization. In the meantime, the plaintiff is left alone to
work and only monitored loosely. Nonetheless, Ms. Hill continues to produce
quality work and it is evident to Mr. Los that she is well organized.

[98]        
Ms. Hill’s family doctor at the time of the
accident was Dr. Woudstra. The doctor managed Ms. Hill’s care and treatment
during the period following the accident until sometime in 2011.

[99]        
Later, when I discuss the divergence in medical
diagnoses that are at the heart of the dispute between the parties, I will address
the significance of Dr. Woudstra’s evidence and her chart entries, or lack
thereof. For the moment, I propose to set out the more important aspects
of her evidence and actual chart entries.

[100]     In a narrative-style expert report dated February 7, 2011, Dr.
Woudstra recounted meeting with and assessing Ms. Hill with respect to her
apparent accident‑related injuries on several occasions commencing
October 27, 2009, the day after the accident. Further assessments occurred on
November 3, 13, and 17, 2009; December 31, 2009; February 5, 19 (by a
colleague), and 23, 2010; March 1 and 26, 2010; April 27, 2010; July
27, 2010; October 8, 2010 and November 19, 2010.

[101]     The doctor first noted a complaint of dizziness on November 26,
2009. At that time, according to the note, Ms. Hill told the doctor that she
still having some blurring of her vision. The doctor noted that Ms. Hill
reported that she was still having some dizziness associated with objects
moving in her peripheral vision and did not recall having that before the
accident. Similarly, on February 5, 2010, the doctor noted that Ms. Hill
reported neck tightness with dizziness on a daily basis. On February 23, 2010,
Ms. Hill reported, and the doctor recorded, that she was having ongoing
dizziness and vertigo, her depth perception was off and she became motion sick
very easily. On March 1, 2010, the doctor recorded that Ms. Hill reported
ongoing difficulty with dizziness and memory loss dating back to the accident.
The March 1, 2010, entry is the first reference in the doctor’s chart to memory
problems.

[102]     Dr. Woudstra typically made her chart notes after Ms. Hill’s visits.
She testified that her notes were not intended as a transcript; instead, they
were a list of key points relating to the particular visit. 

[103]     Dr. Woudstra impressed me. She appeared careful and suitably
cautious. Although Dr. Woudstra is not a specialist with respect to brain
injuries, she has practical clinical experience with young athletes and
concussions. By March 1, 2010, Dr. Woudstra concluded that Ms. Hill might have
experienced an MTBI or post‑concussion syndrome.

[104]    
In her report summary, Dr. Woudstra addressed
Ms. Hill’s ongoing problems, as follows:

The two specific
areas that I am concerned about is some ongoing musculoskeletal complaints that
will possibly haunt her for years to come in her left shoulder and her left
neck. These may have long lasting effects on her employment, leaving her unable
to perform heavy tasks that are required in her occupation. The second issue is
her memory, mood and vertigo. I suspect these will have only modest improvement
from this stage and will be a mild but persistent disability.

I will discuss the evidence of the various
specialists retained to conduct forensic assessments and provide opinions later
in my reasons. I observe that none of them had the advantage that I have had of
hearing the evidence of persons closely connected to Ms. Hill, both before and
after the accident.

[105]     There were also two medical referrals of potential significance.
After the assessment by one of Dr. Woudstra’s colleagues on February 19, 2010,
the colleague referred Ms. Hill to Dr. Noel, an ear, nose and throat
specialist, respecting her complaints of vertigo. Dr. Noel referred Ms. Hill on
for vestibular therapy. There is no expert report from Dr. Noel in evidence and
he did not testify. I will discuss below the content and evidentiary value of
Dr. Noel’s inter-consultation report.

[106]     After concluding that Ms. Hill may have suffered an MTBI, Dr.
Woudstra referred her to Dr. Shtybel, a neurologist. There is also no expert
report from Dr. Shtybel in evidence and he did not testify. I will also
discuss the content and evidentiary value of his inter-consultation below. Both
these reports were filed as exhibits.

[107]     One other referral is also potentially significant. Before the
accident, in early May 2009, Dr. Woudstra referred Ms. Hill to Dr. Clarke, an
optometrist, to review Ms. Hill’s complaints about optical migraines. Dr.
Clarke apparently diagnosed ophthalmic migraines causing a visual disturbance.

[108]     Dr. Clarke testified, on behalf of the defendants. According to Dr.
Clarke, on reassessment after the accident in mid-November 2009, Ms. Hill
reported visual migraines in a few areas, occurring about once every six weeks
with no known triggers. The migraines lasted about 20 minutes and were not
followed by headaches. The results of an eye examination were normal.

[109]     Dr. Noel wrote a consultation report dated April 20, 2010 stating,
in part, that it was his impression that Ms. Hill suffered from “post MVA disequilibrium”
that “probably reflects myofascial issues involving the head and neck.” He also
stated, “One wonders about the probability of a central (post-concussive)
component.” Finally, he stated that he was “not comfortable attributing her
disequilibrium to an end organ (i.e. labyrinthine) site.”

[110]    
Dr. Shtybel wrote a consultation report dated
April 27, 2010, in which he described the symptoms as Ms. Hill had reported to
him, and much as she described in her trial evidence. Under the heading
“Impression”, he stated:

I believe she
has suffered a soft tissue injury of the cervical spine in the left shoulder
and a concussion. She now presents with a constellation of symptoms consistent
with post-concussion syndrome. I have explained to her that the natural history
is that the majority of patients with this will resolve over 3–12 months.

Both these reports were entered into
evidence subject to a proviso by counsel that they were admitted for the fact
that they were generated, but not for their content.

[111]     I understood the proviso to mean that the reports were not
admissible as expert evidence. That is consistent with the law relating to
medical records. As pointed out in Edmondson v. Payer, 2011 BCSC 118, at
para. 39, the court cannot use clinical records to determine a medical
diagnosis in the absence of expert opinion.

[112]     In the result, the inter-consultation reports provide the fact of
the doctors’ statements respecting their diagnoses, provisional or otherwise,
and nothing more. More particularly, the reports are not evidence from which I
may infer that any particular diagnosis set out was correct.

[113]     Two of Ms. Hill’s treating therapists testified: Lorelei Lew, a
vestibular therapist, and Briggitte Bauer, a physiotherapist. Ms. Lew treated
Ms. Hill in relation to her balance and dizziness about twenty times between
May 2010 and November 2011. Ms. Hill’s recovery had not plateaued when Ms. Lew
stopped treating her and another therapist took over. Ms. Lew estimated that
ongoing treatment of twice per year would benefit Ms. Hill, coupled with Ms.
Hill continuing a home exercise regime.

[114]     Ms. Bauer treated Ms. Hill from November 2009 to January 2013. On
Ms. Hill’s final visit in January 2013, Ms. Bauer observed increased tone
in the bilateral sub-occipital muscles and both jaw muscles as well as limited
flexion in the upper cervical spine and the cervical thoracic junction. Ms.
Bauer reported that the plaintiff’s complaints followed a pattern: increased
activity led to more pain, treatment provided relief, but the pain never
completely disappeared.

[115]     Several medical specialists and a neuropsychologist assessed Ms.
Hill during the course of the litigation. Each reviewed her medical history and
wrote one or more expert reports that were accepted in evidence. Each was vigorously
cross-examined at trial.

[116]     The plaintiff’s experts in this regard are Dr. O’Breasail, a
psychiatrist; Dr. Cameron, a neurologist; Dr. Filbey, a physiatrist; Dr.
Longridge, an otolaryngologist; and finally, Dr. Corney, a neuropsychologist.
The defendants’ experts are Dr. Janke, a psychiatrist; Dr. Prout, a
neurologist; and finally, Dr. Bell, an otologist.

[117]     For the most part, the divergences in medical diagnoses that emerge
from their evidence reflect their respective willingness or unwillingness to
rely on Ms. Hill’s subjective complaints about the onset of certain symptoms.
The experts whose evidence primarily relates to whether or not Ms. Hill suffers
from an MTBI or post-concussion syndrome arising out of the accident are Drs.
O’Breasail, Cameron, Filbey, Corney, Janke and Prout. The evidence of Drs. Longridge
and Bell primarily relates to Ms. Hill’s complaints relating to balance,
dizziness and nauseousness. I will discuss this evidence in accord with the
above groupings, although I appreciate that there is some degree of overlap,
for example, balance issues in a particular case may be attributable to disease
or trauma to the inner ear organs or to an MTBI.

[118]     Dr. O’Breasail wrote two reports: December 21, 2011 and November 15,
2013. He first assessed Ms. Hill on August 31, 2011, and again on October 8,
2013.

[119]     The doctor described Ms. Hill as mildly anxious but apparently not
depressed on the first occasion. With reference to Ms. Hill’s persisting pain,
particularly in the left shoulder and neck, with some symptoms travelling down
the left arm to the hand, he opined, “she has chronic intermittent pain in
affected areas with associated limitations in functioning.”

[120]    
On the question of brain injury, he stated:

In the accident,
she likely suffered a concussion or mild traumatic brain injury. She has a
reasonably good memory right up until the impact and has a relatively brief
posttraumatic amnesia. That is the time from the accident until the ongoing
laying down of new memories. The concussion was likely in the mild end of the
spectrum. She has, however, gone on to develop many symptoms of post concussion
syndrome, including cognitive difficulties with impairment in concentration and
memory. She is also distractible. She has experienced physical symptoms,
including headaches, although she has a prior history of migraine. Her
migraines now are more frequent than they were prior to the motor vehicle
accident. She has experienced dizziness and vertigo, which have been severe and
have persisted since the accident. They have interfered with her ability to
function. She is not capable of pursuing many recreational activities largely
as a result of the dizziness and vertigo. She experienced emotional
difficulties following the accident, including initially posttraumatic stress
symptoms with nightmares, recurrent intrusive thoughts and images of the
accident, anxiety, and depressive symptoms. She also has had low frustration
tolerance, or irritability.

The doctor went
on to opine:

In my opinion, she likely went on to suffer from
an Adjustment Disorder with mixed emotional features following the accident,
which is now largely in remission. As noted earlier, she suffered from some
symptoms of posttraumatic stress, as well as depression, tearful episodes,
anxiety, increased social withdrawal and isolation, decreased energy, and
feelings of fatigue. There were also changes in her sleep and appetite. There
has been a definite improvement in her psychological symptoms over time and
with treatment. She is no longer suffering from depression. She does experience
some mild anxiety and certainly is stressed at times, but, overall, she has
been emotionally stable now for some time. In my opinion, her Adjustment
Disorder she suffered following the motor vehicle accident is largely in remission.

She continues,
however, to suffer symptoms of post concussion syndrome with vertigo and
dizziness being prominent. She also experiences cognitive difficulties. The
cognitive difficulties are likely secondary to not only the effects of the
concussion, but also ongoing pain and I have no doubt anxiety or stress plays a
role here, as well.

I observe that the doctor went on to
specifically state that Ms. Hill had a stable personality before the accident,
even though he was aware that she saw the psychologist about ten months earlier
to deal with issues attributable to her disintegrating marriage and her
decision to end the relationship. 

[121]    
As to the future, the doctor’s prognosis was:

Given that it is
nearly two years since the motor vehicle accident occurred, it is likely that
many of the symptoms she currently has will persist into the future. It is
beyond my expertise to provide a prognosis regarding her vertigo or dizziness.
However, given that it has been present this length of time, it is likely that
it will persist into the future and it does not seem that there have been any
major changes in the recent past. It would appear that these symptoms have
plateaued.

At the time of his first report, the doctor
suggested continuing psychological treatment on a bi-weekly basis over the next
year. He stated that he did not believe that Ms. Hill required any psychotropic
medication.

[122]    
The doctor also addressed Ms. Hill’s ability to
return to full-time employment, stating:

In my opinion,
this woman has a partial vocational disability or limitation in functioning
directly as a result of the injuries she suffered in the motor vehicle accident
of 26 October 2009. She has been able to continue to work three days a week,
which she was doing prior to the accident, but has not been able to work
full-time, which she had planned to do, and I believe this will likely not
occur. 

In his second report, Dr. O’Breasail
largely confirmed the opinions set out above.

[123]     In his second report, Dr. O’Breasail reported the extensive history
that he received from Ms. Hill during which she reported on the current status
of most of the symptoms discussed in his first report. The doctor stated in his
second report that Ms. Hill did not appear significantly anxious or depressed.
There were, in his view, no positive psychotic features present. The doctor
reaffirmed his earlier opinion respecting chronic pain secondary to the
accident-related injuries and that the adjustment disorder was largely in
remission, although she had some residual symptoms. As to the continuation of
some post-traumatic symptoms in the form of nightmares, flashbacks, and anxiety
in a vehicle, the doctor concluded that Ms. Hill did not meet the full criteria
for the disorder at that time.

[124]    
Again, on the issue of whether the plaintiff
suffers from an MTBI or post‑concussive syndrome, Dr. O’Breasail largely
repeated his earlier diagnosis, stating:

In the accident she experienced a concussion
or mild traumatic brain injury. The period of posttraumatic amnesia is
relatively brief. In my opinion, the likelihood is that this was a mild
concussion. However, she has continued to experience post concussive symptoms,
including cognitive difficulties with impairment in concentration and memory,
as well as increased distractibility, and physical symptoms of headaches with
the increased frequency of migraines, tinnitus, dizziness, and vertigo, as well
as fatigue. There has been an improvement in the vertigo and dizziness since
the time of the accident.

Post concussive
symptoms persist in the long-term in only a relatively small minority of
individuals who suffer concussions. The cause of the persistence of such
symptoms is unknown, although it is thought that psychological factors play a
role. I believe that is likely the case here. Although there has been a
definite improvement objectively and subjectively in her psychological
symptoms, such as depression and anxiety, she continues to have some low grade
psychological symptoms on an ongoing basis.

[125]     Dr. O’Breasail recommended that Ms. Hill remain on antidepressant
medication as the presence of chronic pain, post-concussion symptoms, depression
and anxiety place her “at greater risk of developing a Major Depressive
Disorder in the future.” He recommended that psychological counseling continue
about once per month over the ensuing two years, although he did not suggest
that counseling would resolve the underlying symptoms.

[126]    
In that regard, the doctor stated that, in light
of the chronic pain as the primary cause of disability, coupled with the psychological
factors that are contributing, he did not expect any major change in the future
regardless of treatment modalities. As to Ms. Hill’s ability to work, he
concluded:

It is likely
that she will be capable of working four days a week at reduced hours, as she
is now with the special supports in place, in that her colleagues at work have
been very supportive of her.

Much of the above was attacked in
cross-examination.

[127]     I need not repeat all of the cross-examination. Much involved
putting assumptions to the doctor that are not borne out by the evidence. The
doctor was a good witness and fairly conceded a number of points based on the
assumptions, although he made it clear that he also did not believe they were
supportable.

[128]     For example, the doctor conceded that memory fades naturally over
time, that memory may be impacted by pain, sleep disturbance, fatigue, or
emotional upset, but reiterated that the key aspect of memory loss here is
whether it is continuous. In his view, there was an interruption in the
formation of continuous memory around the time of the collision, even if only
for a few seconds. According to the doctor, most people retain continuous,
rather than interrupted, recall of trauma.

[129]     Although the doctor agreed that neurological symptoms consistent
with an MTBI do not worsen over time, he also pointed out that a patient may not
necessarily report them to treating personnel during the period immediately
following injury.

[130]     Dr. Cameron’s report is dated December 3, 2013. Like the other
specialists, he took a detailed history from Ms. Hill, but did not interview
any collateral sources; reviewed medical, clinical, and other records relating
to her injuries, cognitive status, complaints and treatments; examined Ms.
Hill; and reported on all of the above, as well as expressing his opinion.

[131]    
Some of Dr. Cameron’s more significant opinions
are as follows:

Following my neurological assessment of Ms.
Hill and following my review of the medical records and clinical documents, it
is my opinion that Ms. Hill did suffer an altered state of consciousness or
loss of consciousness at the time of the motor vehicle accident of October 26,
2009. Ms. Hill has no recall of the actual impact. She awoke in the vehicle
after the impact at the scene of the accident. She reports that she was
confused and disoriented at the scene of the accident.

The ambulance crew did assess her at the
scene of the accident, and they documented her Glasgow Coma Scale to be 15 out
of a possible normal 15. The emergency records documented Ms. Hill to be
possibly confused, and questioned her level of alertness in the emergency
department on the date of the accident.

The Glasgow Coma Scale is of assistance to
physicians evaluating patients following any type of brain injury. A Glasgow
Coma Scale of 13 to 15 is diagnostic of a patient suffering a mild traumatic
brain injury. A Glasgow Coma Scale of 9 to 12 is diagnostic of a patient
suffering a moderate traumatic brain injury. A Glasgow Coma Scale of 3 to 8 is
diagnostic of a patient suffering a severe traumatic brain injury.

Based on the clinical condition of Ms.
[Judith] Hill immediately following this accident and the Glasgow Coma Scale
data, it is my opinion that Ms. Hill suffered a mild traumatic brain injury or
concussion at the time of the motor vehicle accident of October 26, 2009.

Based on my
review of these records and based on the history that Ms. Hill has provided to
me, I agree that Ms. Hill has developed a post traumatic brain injury syndrome
following the mild traumatic brain injury that she sustained at the time of
this accident. Ms. Hill has reported improvement in symptoms but she has not
reported resolution of these symptoms following this accident, still present as
of the date of my neurological assessment of Ms. Hill in September of 2013,
four years following the date of the motor vehicle accident.

In his report, Dr. Cameron also identifies
the soft tissue and musculoskeletal injuries sustained in the accident, as well
as the post-traumatic headaches that he links to the “residual effects of the
mild traumatic brain injury or concussion and also secondary to the pain and
discomfort as a result of soft tissue and musculoskeletal injuries.”

[132]    
In Dr. Cameron’s view, Ms. Hill “remains
significantly partially disabled and unable to initiate her planned increase in
her work week,” which he attributes to the “combined adverse effects of chronic
pain and cognitive problems present as a result [of her accident injuries].” He
stated that he did not anticipate that Ms. Hill would improve any further with
respect to her disability. As part of his conclusions, Dr. Cameron stated:

It is also
probable, in my opinion, that the residual cognitive problems present as a
result of the mild traumatic brain injury that she sustained at the time of the
accident are contributing to her inability to return to work on a full-time
basis. Therefore, even if Ms. Hill finds work at a less physically demanding
job, she probably [would] not [have] been able to return to work in a
competitive fashion full time at an alternate job description because of the
ongoing symptoms of post traumatic brain injury syndrome.

In cross-examination, Dr. Cameron
emphasized the importance of relying on all sources: the records, the patient
history, and the assessment.

[133]     According to Dr. Cameron, the vast majority of patients with an MTBI
fall within normal on the Glasgow Coma Scale and also have normal neurological
signs. As to the subjective history, he also emphasized Ms. Hill’s lack of
recall of the impact itself. Upon counsel putting the content of the police
report to him, namely that Ms. Hill told the police that she saw a flash
to her left, the impact felt like it was to the rear driver’s side, followed by
spinning, onto the wall and a sensation of falling, the doctor declined to
change his view because the assumptions do not demonstrate that Ms. Hill has a
continuous memory of the whole sequence of events. Like Dr. O’Breasail, he
testified that people involved in trauma are usually in a heightened state of
awareness and, if conscious, remember every little detail of the whole event.

[134]     Although there are obvious dangers with analogies, Dr. Cameron also
pointed out that professional athletes who suffer concussions may appear to
perform normally after the fact. In some cases, an athlete may play the rest of
the game but later only recall snapshots. Accordingly, the doctor did not
consider it significant that Ms. Hill appeared to be interacting normally after
the accident and at the hospital. Instead, in his view, it is the disruption in
her actual recall that is significant in determining the diagnosis of MTBI or
concussion.

[135]     It was clear during cross-examination that Dr. Cameron was prepared
to accept Ms. Hill’s history as to when she first noticed symptoms consistent
with a brain injury, even though Dr. Woudstra did not make any clinical note of
memory complaints until March 2010.

[136]     Also like Dr. O’Breasail, Dr. Cameron considered Ms. Hill at increased
risk of developing further psychological problems in the future and recommended
future therapy as necessary.

[137]     It is fair to describe Dr. Cameron as a very firm witness, perhaps
unnecessarily aggressively so at times, during cross-examination. For example,
he misinterpreted one of the hospital nurse’s records that was not particularly
legible, yet resisted accepting an assumption that was later borne out by the
nurse’s own evidence. Nonetheless, the cross-examination did not weaken his
core opinions; if anything, once challenged, the doctor stated his views more
forcefully than in his report. I also keep in mind that Dr. Cameron is highly
qualified and very experienced in his specialty.

[138]     Dr. Filbey is a physiatrist. He specializes in physical medicine and
rehabilitation. He has clinical experience with brain-injured patients.

[139]    
Dr. Filbey’s first report is dated November 28,
2011. He proffered three diagnoses for conditions attributable to the accident,
as follows:

1.         Concussion
with persistent post-concussion syndrome and ongoing neurocognitive complaints
and post-concussive disorder;

2.         Left
AC [acromioclavicular] joint grade I strain;

3.         Cervical and
cervicoscapluar pain.

He also opined that “the ongoing persistent
post-concussive symptoms are likely to remain permanent with little change over
time.”

[140]     Dr. Filbey also opined that the AC joint was likely to remain
symptomatic at the same level so long as Ms. Hill did not aggravate it.
Aggravating the injury would result in increased pain and symptoms. Overall,
Dr. Filbey considered that Ms. Hill had “likely reached a point of maximal
medical improvement” and that her then current level of part-time work was
“appropriate.”

[141]     I summarize Dr. Filbey’s recommendations for ongoing medically
necessary and reasonable treatment below:

 1.       Self-directed
vestibular therapy;

 2.       Continue
therapy for symptomatic relief, tapering to once monthly with a single modality
over the long term;

 3.       Ongoing
hydrotherapy and exercise;

 4.       Ongoing
medications as prescribed; and

 5.       Supervised
gym program for six months.

Dr. Filbey also recommended inside and
outside household assistance to deal with heavier matters.

[142]     Dr. Filbey provided a second report dated December 6, 2013, in which
he also recommended, as medically necessary and reasonable, the following
expenses:

 1.       Memory
aids;

 2.       Exercise
equipment;

 3.       Bathroom
safety aids;

 4.       Pain
management aids, excluding the “shaped grain bag”;

 5.       Mobility
aids; and

 6.       Medical/professional
services [apparently as set out in first report].

Dr. Filbey was not successfully challenged
on cross-examination.

[143]     In cross-examination, similar to the plaintiff’s other specialists,
Dr. Filbey opined that the gaps in Ms. Hill’s recall of the accident placed her
injury, considered in the overall context, as a concussion rather than an acute
anxiety reaction. Further, in his view, Ms. Hill did not, at the time of his
assessment, present with overt signs of post-traumatic stress disorder or major
depressive disorder.

[144]     In reaching his conclusions, the doctor was aware that, before the
accident, Ms. Hill was dealing with marital issues and underwent counselling,
but did not find any evidence that these issues had any impact on daily
functioning, unlike the accident, which resulted immediately in such impact.

[145]     Dr. Filbey stressed the importance of taking the totality of
symptoms into account and considering their gradual evolution as the plaintiff
moved through the recovery process, rather than parsing individual symptoms. In
his view, the totality in this case is more consistent with an MTBI or
concussion rather than depression or anxiety.

[146]     According to Dr. Filbey, characterizing a traumatic brain injury as
mild is not an indicator of duration or the nature of the symptoms. Some
patients recover within days of the event but about 15 percent go on to a
post-concussive disorder. A previous traumatic brain injury places a patient at
greater risk for a second.

[147]     Dr. Filbey’s evidence respecting Ms. Hill’s memory gaps surrounding
the accident was congruent with that of Dr. O’Breasail and Dr. Cameron. It was
also consistent with the plaintiff’s reports to others and her evidence at
trial.

[148]     Although Dr. Filbey clearly did not accept the defence characterization
of Ms. Hill’s injuries, he appeared to follow questions carefully and
responded directly. He appeared to be a well-informed witness.

[149]     Dr. Corney was the only neuropsychologist to provide evidence. As a
psychologist, he cannot medically diagnose a traumatic brain injury, although
he may diagnose psychological disorders. His principal responsibility in the
case at bar was to select psychometric testing, to be administered by a
technician and later interpreted by Dr. Corney to determine whether the results
were consistent or inconsistent with brain injury.

[150]     Although there were weaknesses in Dr. Corney’s evidence, including
his overly and unnecessarily academically detailed and frequently repetitive
report, I do not consider them fatal. His results are consistent with the
medical diagnosis of an MTBI and are entitled to some weight in the absence of
any other neuropsychological evidence.

[151]     Dr. Corney’s report is dated July 27, 2011. In addition to
interviewing the plaintiff, he also interviewed her mother, Joyce Hill, about
the plaintiff’s day-to-day level of cognitive and physical functioning. The
information obtained from Joyce Hill is consistent with her evidence at trial.

[152]    
Dr. Corney stated his final opinion, as follows:

Based on the
findings of this assessment, it is my opinion that Ms. Hill is experiencing
symptoms that are consistent with her having suffered a mild traumatic brain
injury in the motor vehicle accident of October 26, 2009. Based on the
identified deficits in attention, as well associated cognitive, physical and
emotional symptoms, Ms. Hill meets DSM-IV-TR Research Criteria for
postconcussional disorder, and a diagnosis of Cognitive Disorder Not Otherwise
Specified is therefore appropriate.

Dr. Corney also set out his further opinion
that the test results were valid in that Ms. Hill performed well on effort
and symptom validity testing. She also appeared motivated. Of significance, if
anxiety and depression impact on test scores, they tend to lower overall
performance. According to Dr. Corney, that did not happen as Ms. Hill
performed well in a number of areas. Further, Ms. Hill reported that she was
pain and headache free during testing, and had not taken medication beforehand.

[153]     Dr. Corney recommended cognitive rehabilitation focused on
developing compensatory strategies. He also recommended continuing psychological
counselling to address her probable permanent disabilities.

[154]     Cross-examination focused on a number of areas. These included the
inclusion of boilerplate information, the need to conduct an objective
assessment, the manner in which the doctor chose the test battery, alternate
explanations for some test results, and the use of percentile scoring.
Boilerplate is an adequate descriptor for the unnecessary academic detail found
in the report. Otherwise, the cross-examination described above did not
successfully undermine the opinion.

[155]     Much of the rest of the cross-examination was an attempt to obtain a
concession that a finding of MTBI is inconsistent with the events as described
or reported by emergency and medical responders, as well as by Dr. Woudstra,
after the accident. Counsel also cross-examined about the course of Ms. Hill’s
pre-accident psychological counselling respecting the circumstances of her marriage.
Dr. Corney did not resile in cross-examination from the opinions set out
in his report.

[156]     I turn next to the evidence of Dr. Janke and Dr. Prout, two of the
defendants’ experts.

[157]    
Dr. Janke wrote two reports: one, after
assessing Ms. Hill, dated December 5, 2013, and the second, in rebuttal to the
plaintiff’s expert reports, dated January 19, 2014. In the first report, Dr.
Janke sets out the information that he obtained respecting the immediate effect
of the accident. According to the report:

Ms. Hill has loss of awareness for some
aspects of the actual accident itself. She has described being aware of her
vehicle spinning and she is immediately aware once her vehicle has come to
rest.

Ms. Hill has
detailed recall of events immediately following the motor vehicle accident. She
then describes intermittent energy for events over the rest of the day.

Immediately after those passages, the
doctor embarked on a detailed and comprehensive review of the content of the
ambulance, emergency room, family physician and therapeutic records relating to
Ms. Hill. I am unable to discern from the report whether Dr. Janke asked Ms.
Hill when she first encountered cognitive problems such as memory. I am left
with the impression that Dr. Janke was only prepared to consider symptomology
that was actually documented, a conclusion I will return to later.

[158]    
As a result of his review of the records of the
psychologist who counselled Ms. Hill respecting her marriage, Dr. Janke made
the following statements:

Ms. Hill’s relationship with her ex-husband
is described in the assessment as being relatively good. The clinical records
of her psychologist, Dr. Bruce, would suggest that in fact there have been
periods of considerable conflict and this was a significant contributor to Ms.
Hill’s decreased mood.

Ms. Hill had a
pre-existing highly dysfunctional marital relationship that was in the process
of dissolving at the time of the motor vehicle accident.

I pause to observe that the records of the
counsellor were not put in evidence for any purpose and Dr. Bruce did not
testify. In any event, the available evidence at trial does not support the
conclusion that Ms. Hill and her ex-husband had a “highly dysfunctional marital
relationship.”

[159]     Dr. Janke does not state in his report that Ms. Hill was clinically
depressed before the accident as a result of the dysfunctional relationship,
but it is potentially significant given his conclusion, derived from his review
of Dr. Woudstra’s records, that Ms. Hill developed a “significant Mood Disorder
following the motor vehicle accident with marked symptoms of depression.” He
later referred to Ms. Hill’s continued symptoms of mild to moderate depression
that he considered to be in partial remission at the time of his assessment.

[160]     Dr. Janke also referred to Ms. Hill’s symptoms of post-traumatic
stress disorder and her functional recovery in that regard apart from
“persisting anxiety and to a certain degree some persistence of mild intrusive
memories and nightmares.”

[161]    
Dr. Janke’s firm departure from the opinions of
the plaintiff’s experts is as follows:

Ms. Hill has reported significant
difficulties with cognitive functioning. This was not apparent in the context
of the clinical interview and the review of clinical records indicates that
although there may have been brief loss of awareness in the motor vehicle
accident Ms. Hill did not manifest any signs or symptoms of Post-Concussion
Syndrome in the period immediately following the motor vehicle accident.

It is my opinion that in the motor vehicle
accident Ms. Hill may have suffered a very mild traumatic brain injury or
concussion. This is based on her self-report of a brief loss of awareness and
some interrupted memory following the motor vehicle accident.

Ms. Hill’s course in the weeks and months up
to March of 2010 is not consistent with her having suffered a significant
concussion and there is no indication that she developed Post-Concussion
Syndrome.

The late onset of complaints of cognitive
dysfunction in my opinion is attributable to the significant emotional distress
reported by Ms. Hill including the development of a Major Depression and
significant signs and symptoms of Post-Traumatic Stress Disorder.

Ms. Hill’s
symptoms have been misattributed to a Post-Concussion Syndrome by a number of
assessing and treating therapists and as a result Ms. Hill when seen by myself
had the firmly held belief that she had suffered a traumatic brain injury and
that was the partial explanation for her ongoing difficulties.

Dr. Janke went on to state Ms. Hill’s
reported impairment in cognitive functioning is “more adequately explained by
her pain and associated Mood Disorder.”

[162]     Curiously, Dr. Janke appeared to overlook that Dr. Shtybel, a
neurologist, in April 2010, reported that Ms. Hill presented “with a
constellation of symptoms consistent with post concussion syndrome.”

[163]     Dr. Janke recommended “more aggressive” treatment for the mood
disorder that he diagnosed and predicted substantial improvement in perceived
cognitive functioning and day-to-day functioning. Dr. Janke emphasized the
importance of not reinforcing a faulty belief that Ms. Hill had suffered from a
traumatic brain injury in the treatment process.

[164]     In Dr. Janke’s view, six to eight months of therapy would return Ms.
Hill to her pre-accident state. He went on, however, to specify treatment over
a period of 18 to 24 months.

[165]     In his rebuttal report, Dr. Janke voiced numerous criticisms of the
plaintiff’s experts. I summarize some of the more significant ones as follows:

 1.       Dr. Cameron appeared to accept Ms. Hill’s
description of developing symptoms consistent with post-concussion syndrome
after the accident but “careful review of clinical records indicates that Ms.
Hill did not have initial complaints of cognitive dysfunction” and they only
arose “following the development of quite significant psychological
symptomatology.”

 2.       Dr. Cameron misinterpreted the clinical records
and is basing his opinion on the assumption that Ms. Hill had symptoms
consistent with concussion and then developed post-concussion syndrome.

 3.       Dr. Filbey made similar mistakes as Ms. Hill was
not manifesting signs or symptoms of cognitive dysfunction in the period
immediately following the accident.

 4.       Dr. O’Breasail also misinterpreted Ms. Hill’s
history and although Dr. Janke agreed that there might have been an MTBI,
he did not agree that Ms. Hill developed post-concussion syndrome.

 5.       Dr. Corney’s approach to interpreting data is based
on a faulty understanding of the “appropriate use of neuropsychological
testing.”

 6.       A registered psychologist with the appropriate
expertise should review Dr. Corney’s report and raw test data.

At the end of his rebuttal report, Dr.
Janke clarified his opinion respecting the length of ongoing psychological
treatment for Ms. Hill and stated that effective treatment should not take more
than twelve months.

[166]     I am satisfied, from the whole of Dr. Janke’s evidence, that he
viewed the lack of references in the medical and clinical records immediately
following the accident to complaints relating to cognitive dysfunction as
factually determinative. In other words, he concluded that the lack of record
was proof that the complaints did not exist. Regardless of whether or not that
is legitimate from a medical perspective, it is, as I will later address, not
legitimate for legal purposes.

[167]     Dr. Prout’s reports are dated June 13, 2013 and January 8, 2014. His
second report is also a rebuttal report. Like Dr. Janke, Dr. Prout appeared to rely
heavily on post-accident records in producing his opinion.

[168]    
Dr. Prout attributed Ms. Hill’s constellation of
symptoms, including pain, headaches, dizziness, balance, tinnitus, and blurry
vision to “whiplash associated disorder” primarily resulting from her neck
injury. He addressed the symptoms of brain injury and post-concussion syndrome
in his first report, as follows:

Ms. Hill describes a brief period of loss of
recollection for the immediate post-accident period of time. Although there has
not been evidence that Ms. Hill had any external sign of having hit her head
this brief period of loss of recollection for the post-accident period of time
would be consistent with her having suffered a mild concussion (mild traumatic
brain injury). There is no suggestion that Ms. Hill was witnessed to be
unconscious and she was not witnessed to have any abnormal mental functioning
immediately post-accident. There did not appear to be concerns raised in the
clinical records relating to the diagnosis of a post-concussion syndrome for
months post-accident. It is my opinion that Ms. Hill, although she may have
suffered a mild concussion in the subject accident, did not develop typical
symptoms of a post-concussion syndrome post-accident and as discussed above the
dysequilibrium-type symptoms, visual symptoms and dizziness can be adequately
explained on the basis of the whiplash associated disorder.

Ms. Hill does
still complain of some minor complaints of dizziness or dysequilibrium in my
opinion best explained on the basis of her soft tissue neck injury. 

Dr. Prout goes on to refer to Ms. Hill
developing, in a delayed fashion after the accident, “emotional” and
“psychological” difficulties that “resulted in increased complaints of a
cognitive nature due to the distracting effects of such psychological
difficulties occurring in conjunction with problems with sleep and recurring
pain.” He similarly attributes Ms. Hill’s memory difficulties and mental
fatigue. 

[169]    
Dr. Prout recommended ongoing active physical
rehabilitation, rather than passive therapy such as massage and acupuncture,
along with psychological counselling as necessary. He did not consider Ms. Hill
limited in her ability to perform any household tasks and did not anticipate
any lasting disability respecting her neck and shoulder injuries. As to work,
he stated:

Ms. Hill
appeared to return to work fairly early post-accident and has been limited in
her work only by a relative intolerance to more physical activities and by
complaints that are somewhat nonspecific such as mental and physical fatigue.

In his second report, Dr. Prout reviewed
the reports of Dr. Filbey, Dr. O’Breasail and Dr. Corney. I found little of
assistance in the report except I note Dr. Prout’s opinion that the majority of
the cognitive testing under Dr. Corney’s direction is within the normal range.

[170]     Only one significant point emerged from the cross-examination of Dr.
Prout. He agreed that he did not ask Ms. Hill about any restrictions on her
ability to do housework. Instead, he based his opinion that she does not need
assistance on his examination of the plaintiff and balance tests coupled with
an assumption that, if she were able to do gardening, she would be able to do
housework. Ms. Hill’s history, supported by the evidence of her work
associates, does not, in my view, support the doctor’s starting point.

[171]     The final grouping of medical expert evidence is that of Dr.
Longridge and Dr. Bell. Dr. Longridge wrote reports dated November 22,
2011 and November 19, 2013, and, as well, two reply reports each dated February
25, 2014. Dr. Longridge assessed Ms. Hill twice, on August 16, 2011 and
September 18, 2013. I propose to discuss Dr. Longridge’s first two reports,
then Dr. Bell’s report, before discussing their further reports. Finally, I
will discuss their respective cross-examinations.

[172]    
Dr. Longridge specializes in otology – the
branch of medicine devoted to the study of the ear – and, in particular, the
evaluation of tinnitus, hearing loss and dizziness. As a result of Ms. Hill’s
reported history and testing, he stated the following opinions:

Shortly after a significant motor vehicle
accident in which the patient has impaired memory of parts of the event, she
had dizziness, lightheaded and vertiginous episodes, something which she did
not have pre accident.

Onset of
dizziness, lightheaded and vertiginous episodes shortly after the accident and
absence prior to the accident in the absence of any other satisfactory
explanation, in my opinion, means the accident is the probable cause.

The doctor went
on to discuss specific symptoms that strike me as unique. He reported:

If she is in
active places with a lot of movement, such as shopping malls and supermarkets,
the sound and motion is overwhelming so she tries to avoid these places if she
conveniently can. She prefers to use the stairs now rather than elevators
because the elevator movement disturbs her. This is new again since the
accident. Busy carpets such as the one located in my office cause dizziness.
Watching her children play active TV video games is bothersome and she can no
longer do this.

According to the doctor, these complaints
indicate visual vestibular mismatch (visually induced dizziness), a sensation
that the doctor described in lay terms as a misinterpretation of visual
information resulting in a feeling of movement. This physiological response is
abnormal or pathological if it occurs in circumstances where normal people do
not get symptoms. A lot of movement around such individuals causes confusion,
distress and dizziness.

[173]    
The dizziness is the result of the lack of
synchronization of the information from the balance system of the ear, as the
patient moves, with that received through vision. The doctor listed the
following circumstances as typically inducing visual vestibular mismatch:

Particular
situations where this occurs are ones with a lot of movement.
Characteristically rippling water and also the standard situation of a lot of
movement in a supermarket or shopping mall produces awareness of dizziness. Complaints
of dizziness caused by checkered floors, busy carpets or patterned tiles is
seen. Dislike of elevators and escalators, which caused dizziness is common.
Busy television programs, such as car chases and hockey games cause dizziness.
Scrolling a computer causes dizziness. The bright light in these circumstances
is frequently complained of. People around the patient are moving relatively
indiscriminately and this results in a dizzy sensation.

As a matter of logic, absent visually-induced
dizziness before the accident and no other satisfactory explanation, Dr.
Longridge opined that the accident is the probable cause of these symptoms. He
also observed, noting the need for caution, that subjective testing at the time
of the initial assessment suggested an abnormality of the graviceptor organ in
the macula of the utricle of the inner ear.

[174]     Dr. Longridge further opined that Ms. Hill’s disturbance of her
balance system is likely to cause greater problems with balance and
unsteadiness as she ages than would be the case for someone without the
disturbance. This, in his view, places her at a greater risk for falls.

[175]     Dr. Longridge also addressed Ms. Hill’s tinnitus. Although it is
constantly present, it is a background sound and should be regarded as mild
because it does not intrude in her daytime activities.

[176]     In his second report, Dr. Longridge reported that Ms. Hill continued
to have dizziness problems associated with visual vestibular mismatch and
provided a number of examples. He also referred to other dizzy spells that
occurred occasionally, sometimes with vertigo. In his view at the time, the
visual vestibular mismatch “persists unchanged,” although Ms. Hill was
mitigating the effect by using sunglasses to reduce the visual stimulus. The
other dizziness was only occurring sporadically by that point. He also reported
that Ms. Hill’s tinnitus was largely unchanged and, in his opinion, was
unlikely to worsen in future. 

[177]    
A further aspect of the report has led to a
significant issue between Dr. Longridge and Dr. Bell. Dr. Longridge
reported a “measured abnormality” on a new test referred to as the OVEMP
(Ocular Vestibular Evoked Myogenic Potentials) that was not yet available at
the time of the initial assessment. He described the test as follows: 

This test measures
the macula of the utricle, one of the gravity-detecting organs of the inner
ear. It is abnormal on both sides. As the test is abnormal on both sides, the
prognosis has to be guarded as bilateral malfunction of the balance organs
means that there is not a normal side against which the patient is able to
compensate satisfactorily so caution as to likelihood of recovery has to be
exercised. In the absence of any other explanation it is probable that the
accident is the cause of this measured objective abnormality.

I interject here that Dr. Bell, during his
evidence at trial, gave a useful description of the OVEMP. It is an objective
reflex test for the utricle. A low frequency sound is introduced to stimulate
the organ. If the utricle is functioning, it sends a nerve impulse across the
brain stem and, in turn, stimulates the muscles around the eye. This results in
observable and measurable movement relative to the introduced sound. In Dr. Longridge’s
opinion, the results of the OVEMP supported the subjective test results that he
identified in his first report.

[178]     Dr. Longridge recommended vestibular therapy for the plaintiff to
see if it would assist with the dizzy symptoms but observed that therapy was
unlikely to help over the long term. As a result, he recommended an eventual
transition to a home-based program with occasional supervision by the therapist
to hone the program.

[179]    
Dr. Bell’s first report is dated September 29,
2013. He assessed Ms. Hill on September 25, 2013. Under “History”, he recorded,
in part:

She feels dizzy
with a poor sense of depth perception particularly in poor light. Patterned
carpets and black and white floor tiles give her a “3D effect” and a dizzy
sensation sometimes with nausea.

Based on his
review of post-accident medical records, the doctor commented:

It was noted
that in all the medical reports from the time of the accident through until the
26th November 2009 (one month) there was no record of issues with balance,
vertigo, dizziness, motion-induced nausea, noise intolerance or tinnitus.

The doctor concluded:

There is little
evidence to suggest a traumatic injury to the vestibular or otologic system. A
vestibular injury should typically produce an immediate onset of symptoms. If
she had sustained a traumatic injury at the time of the accident she would have
had significant symptoms and clinical findings such as nystagmus [form of eye
movement present in both eyes] at the scene of the accident, the emergency
department or certainly within a few days. The first recorded complaint of
imbalance is approximately one month after the motor vehicle accident and this,
in my opinion, is too long for trauma to have been the causative agent. The
closer to the time of the trauma the more likely it is that the cause may have
[been] trauma. The one exception to this is possible late onset of Benign
Positional Vertigo which Ms. Hill does not have.

Two observations are appropriate here.
First, Dr. Bell’s report predates the OVEMP that Dr. Longridge discusses in his
November 19, 2013, report. Second, like the defendants’ other doctors discussed
above, Dr. Bell also appears to rely on an absence of reported symptoms in
the medical records to demonstrate an absence of symptoms.

[180]     I also observe that Dr. Bell goes on to state, in part, that Ms. Hill’s
stated history does not fit with vestibular trauma, although he does not
directly address her complaints respecting patterned carpets or black and white
floor tiles. Dr. Bell also stated that the lack of any overlap between
subjective and objective testing suggested “that there is no organic damage to
the vestibular system and that a somatoform disorder is more likely.”

[181]    
Dr. Bell concluded that Ms. Hill has a
somatoform disorder because her test results were normal and failed to provide
an explanation for her symptoms. He stated that the condition is not a result
of conscious malingering, nor is it a fictitious disorder. He described the
disorder in the following terms:

In my opinion it
is likely that Ms. Hill has developed an entity known as chronic subjective
dizziness (CSD). This condition tends to occur in patients with pre-existing
anxiety disorders (suggested in her pre-accident records) or an anxiety
diathesis [predisposition]. The fact that her symptoms came on one month after
the accident and that these symptoms included sensations of non-vertiginous
dizziness, light-headedness, subjective imbalance on most days as well as
chronic hypersensitivity to her own movement (or movement of objects in the
environment) is suggestive of this diagnosis. Additional suggestions are the
fact that her symptoms are exacerbated in settings with complex visual stimuli,
e.g. grocery stores, that they do not respond to the usual therapy and that
symptoms have increased with the passage of time.

In Dr. Bell’s view, the condition also
explains tension-type headaches which may sometimes be triggered by a health
care professional informing the patient that they have a brain injury,
vestibular injury or visual vestibular mismatch.

[182]    
Of potential significance, Dr. Bell also stated:

As mentioned,
individuals at risk tend to be chronic worriers who experience intermittent
periods of dysphoria. Ms. Hill’s emotional reaction described by her doctor the
day after the accident as well as the unusually excessive anxiety associated
with viewing the photographs of the accident, shown to her at the ICBC
discovery meeting, would suggest an anxious personality. 

I observe that Dr. Woudstra testified that
Ms. Hill appeared shaken and was crying during her first visit after the
accident but there is no other evidence as to Ms. Hill’s presentation on that
occasion. Nor is there any direct evidence as to Ms. Hill’s reactions during
the course of the examination for discovery.

[183]     By report dated December 26, 2013, Dr. Bell responded to Dr.
Longridge’s two reports discussed above. With respect to the first, Dr. Bell
maintained his view that chronic subjective disorder was the correct diagnosis,
rather than visual vestibular mismatch, although he stated that the two have a
“closely similar presentation.” 

[184]    
As to the OVEMP discussed in the second
Longridge report, Dr. Bell referred to Dr. Longridge’s reliance on “a delayed
N1 and P1 latency on the left and an early N1 latency on the right” in the test
results, and then stated:

I disagree with
Dr. Longridge’s interpretation of this test particularly as she has normal
amplitudes and normal interaural amplitude ratios. The only abnormality
recorded is that of slightly delayed latencies on three of the measurements and
this, in my opinion (as well as that of Dr. Hain – reference included) is of
little clinical significance. As recently as October 4, 2013 Dr. Hain
states, in regards to VEMP testing: “At the present writing however, the clinical
value of measuring latency (other than being sure you have a VEMP) remains
somewhat elusive. Amplitudes are much more reliable”. Dr. Hain was a
recent invited speaker at the BC Otolaryngological Society Annual Clinic Day to
talk about the subject of VEMPS and other dizziness-related issues.

I observe here that there is no report from
Dr. Hain in evidence.

[185]    
Similarly, Dr. Bell later stated in his report:

As previously
mentioned the only abnormality on this test is a slight delay in three of the
four latencies measured and this, in my opinion, is of little clinical
importance. The important part of this test, namely the amplitudes and
interamplitude ratios, are normal.

After the ball bounced back to Dr.
Longridge, he replied in his two reports dated February 25, 2014.

[186]    
In a reply to Dr. Bell’s first report, Dr.
Longridge disagreed with the suggestion that a vestibular injury typically
produces an immediate onset of symptoms. In that regard, he stated:

[I]t goes
without saying that if symptoms are present immediately or within a day or two
then there is no arguing that the accident is the almost certain cause of such
symptoms. When dizziness occurs at a later date than immediately there are some
specific explanations. Firstly, patients often are so incapacitated from their
insult that they lie around and do not move and it is only as they mobilize
that they would realize that they are symptomatic. Other people assume that the
dizziness they have in the first few days is secondary to the medication which
they receive for pain killing and muscle relaxation. Thirdly, as patients
return to work and are required to [undertake] their normal activities they
realize that this is limited by the dizzy symptoms which prior to this had not
been induced as they had not had the physical challenge of full activity.

Further, in
response to the description of Ms. Hill’s stated history:

[D]iagnosis of
dizzy difficulties are almost always based on the patient’s history. During
discussion with this patient Dr. Bell noted that she had a poor sense of depth
perception, patterned carpets and black and white tiles were giving her a “3-D
effect” and a dizzy sensation sometimes with nausea. These are characteristic
complaints seen in patients who have a disturbance of their balance system.

Dr. Longridge’s final report responds to
Dr. Bell’s second report that focused, in part, on the OVEMP.

[187]    
First, Dr. Longridge pointed out that the
presence of a disorder of the balance system is an alternate explanation for
the complaints rather than a somatoform disorder. Next, in response to the
passage respecting the OVEMP testing, he stated:

[O]n reviewing
the OVEMP results you will see that the right N1 latency is well outside the
accepted limit for early response. This is not a slight abnormality because it
is so far from the normal range. The same goes for both the N1 and P1 latencies
on the left, which are delayed well outside the accepted limit for normal. A
result just outside the accepted limit could conceivably be due to the fact
that this test measures two standard deviations 95% levels and it is possible
that you can be just outside this range and be one of the 5% of people who have
normal results. The results on this test are so far outside the norm that they
cannot possibly fall into a normal range and are therefore pathological.

Dr. Longridge also responded to the
statements of Dr. Hain’s apparent opinions but I am satisfied that those
opinions are not properly in evidence before me and give them no weight. While
I accept that it is information that Dr. Bell relied on, there is no available
means in this proceeding to test its reliability.

[188]    
On the question of subjective and objective testing,
Dr. Longridge stated:

[A] battery of
tests is done in order to maximally evaluate as far as is possible the various
complex parts of the inner ear. Objectively measured abnormalities on any test
are highly significant and in most people results on tests are normal. The
diagnosis in most patients is made on history. An abnormal finding is highly
significant and normal results in dizziness are usually what is found. The
OVEMP is abnormal.

As to the OVEMP
results, and Dr. Bell’s interpretation that they are of little clinical
importance, Dr. Longridge stated:

[R]ather than
delayed latencies on the right there was an early N1, well outside the accepted
range for normal. Latencies are delayed on the left. This test has only been
available for approximately a year. It is being done intentionally and the syndromes
associated with the measured abnormalities are as yet unclear, but to assume
that specific syndromes have not been recognized associated with abnormalities
on this test means that the test is unimportant is very questionable. Normal
people would not test in this range and clearly a measured abnormality
indicates there is dysfunction of the balance system and difficult to verbalize
complaints such as this patient has could well arise from the abnormalities
causing this measured objective finding.

Finally, on the question of a somatoform
disorder, the doctor suggested that it is inappropriate to ignore objective
measured abnormalities when diagnosing such a disorder.

[189]     Dr. Longridge did not resile during cross-examination. He agreed
that the amplitude scores on the OVEMP were normal and that amplitudes are an
important score. However, he maintained that any abnormalities, in this case
latency scores, are significant absent some other acceptable explanation. He
pointed out that people with abnormal test results, whether suffering from
trauma or non-traumatic inner ear disease, have similar complaints about
carpets, shopping malls, escalators and checkered floors. There is no evidence
of inner ear disease in the present case.

[190]     Dr. Bell also did not resile during cross-examination. He
acknowledged, however, that he relied heavily on Dr. Hain’s views respecting
the OVEMP. According to the doctor, even if Ms. Hill felt dizzy immediately
following the accident, he would expect the ambulance crew or someone else to
create a record pointing to a vestibular injury.

[191]     Dr. Bell testified in cross-examination that the reference in his
first report to chronic subjective dizziness tending to occur in patients with
pre-existing anxiety disorders was not intended to suggest that Ms. Hill had
been diagnosed with the disorder. Instead, he was relying on the fact that she
attended four counselling sessions while deciding to leave her husband and what
he considered to be an overreaction to seeing photos of the accident at her examination
for discovery. He also agreed that nystagmus is not a necessary precondition to
diagnosing a vestibular disorder but stated that it is very useful.

[192]     I am left with the impression from the whole of Dr. Bell’s reports
and oral evidence that he simply did not accept Ms. Hill’s accounts of her
symptoms. Instead, he constructed a theory based on a mistaken assumption that
Ms. Hill was prone to anxiety before the accident. The evidence at trial does
not establish that Ms. Hill suffered unusually from anxiety or that she
required treatment in that regard before the accident.

[193]     Before setting out my conclusions respecting Ms. Hill’s injuries, I
want to address the legal significance of the clinical records in respect of
which the defendants’ doctors relied on the absence of reported symptoms. The
defendants say, accurately, that clinical notes can be powerful evidence of a
plaintiff’s symptoms following an accident, with the weight given to the notes
to be considered in light of all the evidence. The defendants rely on Gonzales
v. Voskakis, 2013 BCSC 215 at paras. 233-236, in support of their argument
but Fitzpatrick J. specifically observed in that case that “the absence of
reported symptoms is not necessarily evidence that no symptoms existed.”

[194]    
A very helpful summary of the law respecting the
evidentiary value of clinical records and symptom reporting is found in Edmondson
where the defendant relied on the plaintiff’s clinical records to argue that
they were inconsistent with her alleged injuries. Justice N. Smith rejected
this argument, noting that “the time [in court] spent parsing a single note
made by a doctor often far exceeds the length of the medical appointment that
the note records” (para. 23). He went on to make the following comments as to
the use of clinical records:

[32]      … [Clinical records] are usually
not, and are not intended to be, a verbatim record of everything that was said.
They are usually a brief summary or paraphrase, reflecting the information that
the doctor considered most pertinent to the medical advice or treatment being
sought on that day. There is no record of the questions that elicited the
recorded statements.

[34]      The difficulty with statements in
clinical records is that, because they are only a brief summary or paraphrase,
there is no record of anything else that may have been said and which might in
some way explain, expand upon or qualify a particular doctor’s note. The
plaintiff will usually have no specific recollection of what was said and, when
shown the record on cross-examination, can rarely do more than agree that he or
she must have said what the doctor wrote.

[35]      Further difficulties arise when a
number of clinical records made over a lengthy period are being considered.
Inconsistencies are almost inevitable because few people, when asked to
describe their condition on numerous occasions, will use exactly the same words
or emphasis each time.

[36]      While
the content of a clinical record may be evidence for some purposes, the absence
of a record is not, in itself, evidence of anything. For example, the absence
of reference to a symptom in a doctor’s notes of a particular visit cannot be
the sole basis for any inference about the existence or non-existence of that
symptom. At most, it indicates only that it was not the focus of discussion on
that occasion.

Those comments are apposite. In the present
case, much of Ms. Hill’s evidence respecting the onset and nature of her
specific complaints is supported by the evidence of family members, co-workers
and friends.

[195]     Particularly, in the hours, days, weeks and months immediately
following the accident, I do not fault Ms. Hill for failing to give a complete
rendition of all aspects of her injuries to her family doctor. I accept that
the recovery process evolves and that what, to the patient, appears important,
unimportant, or possibly is even mischaracterized due to the effects of
medications, differs from time to time.

[196]     On balance, I prefer the evidence of the plaintiff’s doctors where
it conflicts materially with that of the defendants’ doctors. I find that Ms. Hill
received the following injuries as a result of the accident:

 1.       Soft
tissue injuries to the left neck and shoulder, including AC joint, with
cervicogenic headaches and some numbness and tingling down her left arm, now plateaued
but not symptom free, particularly if she attempts to do too much;

 2.       Chronic
intermittent pain;

 3.       Migraines
(aural), under control;

 4.       Migraines
unresolved and triggered differently than pre-accident migraines associated
with pre-menstrual period;

 5.       PTSD (resolved
by the time of trial);

 6.       Nightmares,
transitory and resolved;

 7.       MTBI
or post-concussion syndrome resulting in ongoing fatigue, memory,
concentration, and balance problems;

 8.       Possible
overlap of vestibular injury (trauma to utricle) causing or contributing to
balance issues; and

 9.       Adjustment disorder, largely in remission.

I do not accept the sufficiency of the
evidence respecting temporo-mandibular joint dysfunction.

[197]     It is now more than four years post-accident. Ms. Hill is unlikely
to see further improvement. Instead, ongoing therapies will aim at pain management,
assisting with balance issues and any further adaptions required respecting the
effects of the MTBI or post-concussion syndrome. As she ages, the balance
issues will likely elevate her risk of falling.

[198]     Ms. Hill’s injuries have significantly impacted her life and will
continue to do so. She has lost the ability to participate in many of the sport
and recreational activities that she enjoyed before the accident. Her physical
interactions with the children are more limited than before. In social
interactions, Ms. Hill is now easily overwhelmed or cannot recall the
conversation thread. Her personality now appears different and less attractive to
her family, friends and associates.

[199]     While Ms. Hill has been able to return to work at Butchart Gardens,
she no longer takes the same degree of pleasure in her work and requires employer
accommodations in order to do her job. It is unlikely that she will be able to
fulfill the specific career aspirations that she had in mind before the
accident and accordingly, she must adjust to that loss as well.

DAMAGES

Non-Pecuniary
Damages

[200]     Non-pecuniary
damages are awarded to compensate a plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. In Stapley v. Hejslet, 2006
BCCA 34 at para. 46, the British Columbia Court of Appeal set out an
inexhaustive list of factors for a judge to consider when assessing
non-pecuniary damages. I repeat those factors here:

(a)           
age of the plaintiff;

(b)           
nature of the injury;

(c)           
severity and duration of pain;

(d)           
disability;

(e)           
emotional suffering;

(f)             
loss or impairment of life;

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

(h)           
impairment of physical and mental abilities;

(i)             
loss of lifestyle; and

(j)             
the plaintiff’s stoicism (as a factor that should not penalize the
plaintiff).

[201]     Although there was no direct evidence on the point, on the whole of
the evidence, I estimate Ms. Hill’s age at the time of the accident to have
been in the mid-late 30s. I note that the plaintiff’s economist reported her
birthdate as October 29, 1972.

[202]     No two
cases are alike when it comes to assessing non-pecuniary damages, as each depends
on its own unique facts. However, the awards made in similar cases can provide
helpful guidance when assessing a non-pecuniary award.

[203]     Counsel
for the plaintiff contended that a reasonable assessment of the plaintiff’s
non-pecuniary loss is in the range of $125,000 to $200,000, likely at the high
end of that range. In support, counsel referred to the following: Cikojevic
v. Timm, 2010 BCSC 800; Prasad v. Sedivy, 2008 BCSC 443; Reilly
v. Lynn, 2000 BCSC 360; Rintoul v. Gabriele, 2011 BCSC 858; Sirna
v. Smolinski, 2007 BCSC 967; and Williamson v. Suna, 2009 BCSC 576.

[204]     The
defendants did not concede liability or causation, but if those positions were
to be rejected, counsel contended that an award in the range of $75,000 to
$90,000 would be appropriate in the circumstances. The defendants relied on the
following authorities: Drodge v. Kozak, 2011 BCSC 1316; Fillmore v.
McKay, 2010 BCSC 1401; Mayervich v. Sadeghipour, 2012 BCSC 1624; Moukhine
v. Collins, 2012 BCSC 118; and Scott v. Erickson, 2009 BCSC 1298.

[205]     For the
most part, the plaintiff’s cases at the higher end of the range ($150,000 and
up) involve claimants with more serious injuries than Ms. Hill. In particular,
the cases involve plaintiffs who were rendered competitively unemployable or,
at least, barred from pursuing their chosen career, as a result of an MTBI and
resulting cognitive deficits. As Ms. Hill has been able to continue working at
Butchart Gardens (albeit with accommodations and diminished pleasure in her
work), the impact of her injuries is correspondingly less significant. A number
of the cases with higher awards also involved plaintiffs who were injured when
quite young (that is, in their late teens or early twenties).

[206]     Of the
plaintiff’s cases, Williamson, awarding $115,000, is the closest match to
the present. In that case, the 38 year old plaintiff had experienced persistent
neck and shoulder pain over the five years since the accident, with
difficulties in range of motion and cervicogenic headaches resulting from the
neck pain. Working at a computer, as required for his job, could increase the
pain. He also suffered from cognitive deficits, particularly difficulties with
concentration and memory, which affected his ability to deal with the
activities of his daily and working life. His personality shifted, making him
more irritable, and impacting his family life. He was less able to participate
in his child’s life and had a reduced social schedule. He no longer went
skydiving or scuba diving, and had diminished pleasure or ability to participate
in competitive target shooting and photography.

[207]     Since the
accident, Mr. Williamson had continued at his job in the Canadian Armed Forces,
where he was a Warrant Officer with the National Investigative Service of the
Department of National Defence. He had initially been able to manage or cover
up his cognitive deficits at work but around the time of trial his supervisors
had begun to notice diminished performance and question his ability to
competently perform his duties. The plaintiff indicated that the possibility of
a negative impact on his military career caused him “considerable anguish.” The
court awarded $115,000 in non-pecuniary damages, emphasizing that Mr.
Williamson had suffered an MTBI which had “dramatically affected his life,”
without much hope for future improvement. Taking inflation into account, the
Williamson award would likely be somewhat higher today.

[208]     Of the
defendants’ cases, Fillmore ($75,000), Mayervich ($85,000), and Scott
($85,000) are all distinguishable as the court found in each that the
plaintiff’s cognitive difficulties were not the result of an organic brain
injury, but rather resulted from a psychological problem or a physical injury.
On that basis, the court found that the cognitive difficulties were not
permanent and could “be expected to improve with time and proper treatment” (Scott,
para. 76). Further, In Scott, the plaintiff’s physical injuries had
resolved within a year of the accident.

[209]     The 61 year
old plaintiff in Drodge ($85,000) suffered from permanent cognitive
issues (albeit the court found that they were not caused by an MTBI) and
chronic, severe headaches (five to six times a week), along with social issues,
a change in personality, and a restriction on his recreational and family
activities. However, the court found that the plaintiff’s most significant
physical injury, to his low back, was a “crumbling skull” situation, such that
he would have experienced some portion of the resulting pain in any case. The
judge only awarded non-pecuniary damages for the exacerbation of the back
injury, not for the effects he would have experienced in any case. As the back
injury was the reason he was not able to pursue his career as a driving
instructor, and the main cause of his difficulties with his recreational activities,
the award was correspondingly lower than it would have been, absent that
factor. The decision is of limited value here.

[210]     The
closest analogue in the defendants’ cases is Moukhine ($90,000). There,
the motor vehicle accident caused a permanent vestibular injury that affected
the 53 year old plaintiff’s balance, resulting in nausea, balance problems and
dizziness, particularly when he worked on a computer (a real difficulty as he
was employed as a computer programmer). His concentration and thinking processes
were adversely affected by these symptoms and he was forced to leave his job
and work part-time at home. His personality changed as he became quiet and had low
energy; his friends described him as previously “full of life” but now as a
“wilted flower.” He also suffered soft tissue injuries and headaches following
the accident but both were resolved as of trial. His balance difficulties
limited his recreational and home activities.

[211]     In my
view, Ms. Hill is entitled to a significantly higher award than Mr. Moukhine.
He was older, did not suffer an MTBI, and his physical injuries were less
significant and had resolved by trial.

[212]     I reiterate that no two cases are truly alike when assessing
non-pecuniary damages. I assess non-pecuniary damages at $120,000.

Special Damages

[213]     The plaintiff is entitled to recover reasonable out-of-pocket
expenses she incurred as a result of the accident: Harris v. Zabaras,
2010 BCSC 97 at para. 110.

[214]     The plaintiff claims a total of $41,795.91 in special damages. This
amount includes a variety of therapeutic modalities, such as massage,
acupuncture, personal training, and vestibular therapy, as well as housekeeping
costs, and prescription medications. She also claims for a number of assistive
and safety aids installed in her home, including grab bars and handrails, as
well as other assistive devices such as walking poles.

[215]     While the defendants accept that many of these costs were necessary
and reasonable, they challenge the plaintiff’s use of a case management
service, the frequency of massage therapy in 2012 and 2013, and the plaintiff’s
claim for mileage expenses associated with travel for treatment purposes. They
say that an appropriate award for special damages in the circumstances would be
$35,000.

[216]     The plaintiff claims $5,460 for case management, a service provided
by Barbara Phillips. In her testimony the plaintiff said she acquired Ms.
Phillips’ services because she was having difficulties at home and at work and
had concerns about her safety in both locations. She described Ms. Phillips as
a “really great resource” and said she helped the plaintiff to organize both
her home and work life, assessed her environments for safety concerns, and
recommended and implemented some safety equipment, such as the grab bars
installed in the plaintiff’s bathroom.

[217]     The defendants say that much of the case management was unnecessary,
given that the plaintiff was already attending physiotherapy, massage therapy,
vestibular therapy, and counselling, and was able to do so independently, and
that Dr. Woudstra, her general practitioner, was making referrals and
monitoring her symptoms. They acknowledge that some case management was
reasonable but suggest that an award of $2,000 under that head would be more
reasonable in the circumstances.

[218]     I am satisfied that the management services were necessary and an
award of $5,460 is reasonable in this regard.

[219]     The defendants also say that the plaintiff’s mileage (approximately
16,000 kms) should not be calculated at $0.50/km. They say that the
analogous amount allowed under the B.C. Supreme Court Civil Rules when
taxing a bill of costs is $0.30/km. They acknowledge that there may have been
an increase in the cost of operating a motor vehicle since that rate was set
and so say that a mileage rate of $0.35/km would be appropriate. This would
reduce special damages by approximately $2,400.

[220]     The plaintiff relies on Lubick v. Mei, 2008 BCSC 555 at
paras. 25-26, where the defence argued that the $0.30/km rate used in taxing a
bill of costs should be applied, rather than a $0.40/km rate. The court
rejected this argument, relying on Kahl v. Jakobsson, 2006 BCSC 1163 at
paras. 133-135, and awarded mileage at the $0.40/km rate. In Kahl, Loo
J. indicated that, because “the plaintiff will have difficulty answering
questions such as the miles or kilometers per gallon he or she gets from a
vehicle, the cost of fuel on any particular day, and the amount of wear and
tear,” mileage should be treated “in the way of an allowance” rather than a
detailed rendering of accounts. She also noted that the rate for taxation of
accounts had not changed since 1991 and as a result likely did not reflect a
plaintiff’s out-of-pocket expenses for travel. The plaintiff also cites Coutakis
v. Lean, 2012 BCSC 970 at para. 61, where Saunders J. allowed mileage at a
rate of $0.50/km. This was a reduction from the rate claimed by the plaintiff
($0.75/km).

[221]     A rate of $0.50/km is reasonably consistent with other recent
decisions not referred to by counsel: see Johnson v. Keats, 2012 BCSC
751 at para. 46 ($0.40/km); Harris v. Xu, 2013 BCSC 1257 at paras.
149-154 ($0.49.5/km); Devilliers v. McMurchy, 2013 BCSC 730 at para. 72
($0.50/km); Bae v. Vasquez, 2013 BCSC 542 at paras. 50-51 ($0.50/km);
and Redl v. Sellin, 2013 BCSC 581 at para. 60 ($0.43/km). The rate
proposed by the defendants is entirely inconsistent.

[222]     I conclude that a mileage allowance of $0.50/km is reasonable and
accordingly, award the full amount claimed.

[223]     Finally, the defendants say that many of the massage therapy
appointments the plaintiff attended in 2012 and 2013 were medically
unnecessary. They point out that in November 2011, Dr. Filbey recommended that
the plaintiff taper to monthly therapy for symptom relief with a single
modality, but that the plaintiff continued to attend acupuncture,
physiotherapy, massage and vestibular physiotherapy. She had 23 massage therapy
appointments in 2012 and 21 in 2013, almost twice what Dr. Filbey
recommended. The plaintiff says that all of these treatments were necessary for
pain management.

[224]     Taking into account Dr. Filbey’s recommendation for tapering, I
accept $2,000 of the claim for massage therapy. This has the effect of reducing
the total claim for special damages of $41,795.91 by $1,262 to about $40,533. I
award $40,533 for special damages.

Past Loss of Income

[225]     The
plaintiff says that the accident led to a net loss of income of $77,676 in the
period prior to trial. As noted above, she lost approximately a month of work
following the accident. Since her return, she has gradually increased her
workload to 60 percent of full-time but has not been able to increase past that
point. She says that, but for the accident, she would have returned to a
four-day week on November 1, 2009, and resumed full-time work as an
assistant supervisor in September 2010.

[226]     The
plaintiff’s claim under this head of damages includes $7,328 in conditional
sick pay benefits that she received from her employer during that period, as
Butchart Gardens is entitled, under their illness and injury policy, to make a
subrogated claim for those benefits.

[227]     A
plaintiff is entitled to compensation for past loss of income based on what the
plaintiff would have earned, but for the injury: Rowe v. Bobell Express Ltd.,
2005 BCCA 141. However, the plaintiff is only entitled to recover damages for
past net income loss: Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, s.
98; Coutakis.

[228]     Damages
for past loss of income are assessed in the same manner as future loss of
earning capacity: Falati v. Smith, 2010 BCSC 465 at para. 39, aff’d 2011
BCCA 45. While the burden of proof for actual past events is a balance of
probabilities, a different standard applies where the plaintiff’s claim for past
loss of earning capacity depends on proof of past hypothetical events. Past
hypothetical events that were a real and substantial possibility must be
considered and given weight according to the relative likelihood that they
would have occurred: Gilbert v. Bottle, 2011 BCSC 1389 at para. 224.

[229]     As noted
in Kuskis v. Tin, 2008 BCSC 862 at paras. 153-155, negative and positive
contingencies weighing on that hypothetical event must be considered in
assessing the loss.

[230]     The
defendants admit that the plaintiff has sustained a past loss of income as a
result of her injuries. However, they say that, absent the accident, personal
circumstances and negative contingencies would have delayed Ms. Hill’s return
to full-time work. They say she would not have returned to a four-day work week
until January 2011 and would not have resumed full-time work until January
2014, when her youngest child was 8 years old. Based on those figures, they
calculate a gross loss of $55,172 or approximately $40,000 net of income tax.
They accept the $7,328 subrogated claim by Butchart Gardens under the
plaintiff’s injury and illness policy.

[231]     The defendants
say that the plaintiff would have delayed in her return to 80 percent and
full-time work due to her family circumstances in the autumn of 2009. The
plaintiff gave evidence that she was initially intending to return to a
four-day work week as of September 1, 2009, but delayed for two months in order
to aid her youngest child through a difficult transition to a new school. The
defendants say that this issue would have continued to delay her return. Further,
the defendants also say that the plaintiff’s separation from her husband would
have been disruptive to the family and affected her ability to return to work
as planned.

[232]     Additionally,
although acknowledging that Ms. Hill is a valued employee at Butchart Gardens,
they point to a history of “excessive” employment absences between 2002-2005
and say that these should be taken into account as a negative contingency when
assessing past income loss. A 2005 memorandum from Ms. Hill’s supervisor, Mr.
Los, was put into evidence indicating that during that three year period she
was “significantly over” the three percent sick time limit at the Gardens.

[233]     Having considered the whole of the evidence, including that of Ms.
Hill’s supervisor, Mr. McKay, and director, Mr. Los, I accept that, before the
accident, Ms. Hill intended to return to four days per week as at November
1, 2009, and to resume full-time work, as required by her position as an
assistant supervisor, in September 2010. I further accept that she was a
creative, highly skilled and personable employee who was passionate about her
work. Because of Ms. Hill’s attachment to her work, and her responsibilities as
an assistant supervisor, in the ordinary course, she likely would have returned
to full-time work at the first opportunity consistent with her family
responsibilities. Doing so would have been necessary to maximize her
opportunity for further advancement. An eventual return to full-time work is
also consistent with the pattern that Ms. Hill followed after the birth of the
two older children.

[234]     As to the issues raised by the defence, the plaintiff testified that
her son’s difficulties in adjusting to his new school were resolved by the end
of October 2009, so that there would have been no further impact on her
scheduled return. She said she had a care plan in place for the children that
was unaffected by the separation and indicated that the 2002-2005 absences were
caused by one-time health problems (pregnancy complications, pneumonia, and a
kidney stone). The plaintiff says that they are not indicative of a chronic
problem that would have affected her ability to return to work at a full-time
level. 

[235]     I accept the plaintiff’s evidence on these points and decline to
apply a specific contingency to the past loss of income on any of the bases
identified by the defendants.

[236]     In 2009, the monthly salary for a full-time assistant supervisor was
$4,489.77. That amount increased incrementally to $4,811.83 at the time of
trial. Based on the employer’s payroll records and Ms. Hill’s tax returns in
evidence, Ms. Hill’s actual pre-tax employment earnings at Butchart Gardens
from November 1, 2009, to February 2014 total about $138,363, as follows:

[237]     If the accident had not happened and, rather than working 60 per
cent of full-time, Ms. Hill had worked 80 percent from November 2009 until
August 2010 and thereafter full-time commencing September 2010, she would have
earned about $232,642 over the same period, as follows:

[238]     Based on that approach, Ms. Hill’s past wage loss attributable
to the accident is about $94,279. I note that in the period from 2009 to trial,
no supervisor or manager positions became available so Ms. Hill did not
experience a loss related to any possible promotion.

[239]     There will be no deduction from the award for a failure to mitigate.
The plaintiff is currently working 60 percent. She has tried several other
arrangements, but found them unsuitable. I accept that the 60 percent schedule
is the only arrangement that is currently manageable with her injuries.

[240]     The award for past loss must be net of income tax. The parties are
in agreement that 29.7 percent is the correct figure to use in calculating the
income tax burden on the plaintiff’s absent-accident earnings. That results in
a net loss of $66,279.

[241]     Counsel
never addressed whether the court should deduct income tax from the subrogated
claim of $7,328. In final submissions, however, the plaintiff sought the full
amount and the defendants applied the tax rate, reducing the amount claimed to
$5,152.05. Although there is some authority in this court for the defendants’
approach (see Redl, for example), the bulk of authority supports
the plaintiff’s position. See Ho v. Dosanjh, 2010 BCSC 845 and Gormick
v. Amenta, 2013 BCSC 1998. Accordingly, I find that Ms. Hill is entitled to
recover the full amount of the subrogated claim.

[242]     The total
past income loss and subrogated claim is therefore $73,607 and I award that
amount to the plaintiff.

[243]     The plaintiff also claims for the loss of employment benefits, as
Butchart Gardens subsidizes those benefits at a lower rate for part-time
employees than for full-time employees. The parties agree on the amount of
those benefits and the loss that accrues, depending on whether the plaintiff
works three, four or five days a week.

[244]     The plaintiff says that she has lost $4,517.20 in subsidized
benefits, whereas the defendants say that she has only lost $2,371.71 in
benefits. The latter is based on the assumption that the plaintiff would not
have returned to full-time work until later than she had planned. As set out above,
I have accepted that the plaintiff would have returned to 80 percent and then
to full-time work on the schedule she had set prior to the accident. As such, I
accept the plaintiff’s calculation of the loss of employment benefits at $4,517. 

Future
Loss of Earning Capacity

[245]     There are
two questions that the court must answer in addressing a claim for loss of
earning capacity: (1) has the plaintiff’s earning capacity been impaired by his
injuries, leading to a real possibility of pecuniary loss? and if so, (2) what
compensation should be awarded for that loss? The court’s task is to assess the
plaintiff’s damages, not calculate them with mathematical precision. The
assessment requires a comparison between the plaintiff’s likely future working
life if the accident had not occurred and his or her likely working life after
the accident, “taking into account the positive and negative vagaries of life”:
Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at
para. 57; Gregory v. Insurance Corp. of British Columbia, 2011 BCCA
144 at para. 32.

[246]     There are
two possible methods for quantifying loss of earning capacity: the earnings
approach and the capital asset approach: Perren v. Lalari, 2010 BCCA 140
at para. 32. Where the loss can be simply measured or quantified, the
earnings approach is more suitable; where the loss is difficult to measure in a
pecuniary way, the capital asset approach is more appropriate.

[247]     The
capital asset approach asks whether the plaintiff’s earning capacity, as a
capital asset, has been diminished because: a) the plaintiff has been rendered
less capable overall of earning income from all types of employment; b) has been
rendered less marketable or attractive as an employee to future employers; c)
has lost the ability to take advantage of job opportunities which might
otherwise have been open to him; or d) is less valuable to himself as a person
capable of earning income in a competitive labour market: Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.) at para. 8.

[248]    
In assessing future and hypothetical events, the standard of proof is
simple probability, not the balance of probabilities: Athey v. Leonati,
[1996] 3 S.C.R. 458. As stated in Rosvold v. Dunlop, 2001 BCCA 1 at
para. 9, in making the assessment:

[p]ossibilities and
probabilities, chances, opportunities, and risks must all be considered, so
long as they are a real and substantial possibility and not mere speculation.
These possibilities are to be given weight according to the percentage chance
they would have happened or will happen.

[249]     Once
again, in making the assessment, all relevant negative and positive
contingencies must be considered.

[250]     At the conclusion of trial, the plaintiff contended that her loss
under this head of damages is approximately $700,000. She says she would have
worked full-time from 2010 onwards if not injured, and that she was a strong
candidate for a promotion, first to supervisor and then to manager, although
she admits that there is no fixed date for these promotions because they depend
on positions opening up. However, the plaintiff suggests that she would have
received her first promotion in about 2017, at the age of 45, and attained the
management level in another seven years. She says a management position will
become available when Maria Pancel, the manager, retires. She also says she
would have worked into her 70s, as the job is her passion, and would have the
court calculate damages on this basis.

[251]     Richard Los, the plaintiff’s supervisor, testified as to her
potential for advancement. He indicated that, absent the injury, he would have
given her “serious consideration” for a promotion when and if something opened
up.

[252]     The defendants say that a reasonable global assessment of the
plaintiff’s future loss would be $175,000. They submit that the plaintiff has
not established a permanent disability that will continue to diminish her
earning capacity over her remaining working life. They say that the evidence
does not support the contention that she has lost a promotion, indicating that
while there is some evidence of the potential for a supervisor position to
become available, there is no support for the existence of a managerial
position.

[253]     The defendants suggest that I draw an adverse inference from the
plaintiff’s failure to call Ms. Pancel to testify as to her planned retirement
date; the plaintiff says that there should be no adverse inference as others
(Mr. Los and Mr. McKay, in particular) testified that they know that Ms. Pancel
intends to retire at some point in the near future and that it will lead to a
management position opening up.

[254]     The defendants also say that the plaintiff is not permanently
disabled from future employment. They point to some improvement in her
psychological symptoms and migraines as evidence that she has not reached
maximal medical recovery, such that in the future she may be able to return to
full-time work or even pursue available promotions.

[255]     In addition, the defendants challenge the application of labour
market contingencies in the calculations of the plaintiff’s economist, Mr.
Wickson. They say that labour market contingencies for choice are higher for
women, especially those with three children, but that Mr. Wickson’s
multipliers do not account for this factor. In the defendants’ view, the
elimination of this “choice” component is especially questionable because of
the plaintiff’s status as a single mother. I agree that this negative
contingency should be taken into account.

[256]     However, I reject much of the defence submission. I accept that the
plaintiff will not work more than 60 percent going forward. She has
experimented with her schedule since the accident and I accept that the
schedule she currently follows, four days a week at six hours per day, is the
one best suited to managing her injuries while allowing her to continue to
work. Her future losses will be assessed in comparison to that schedule going
forward.

[257]     I also find that, upon returning to full-time work, given Ms. Hill’s
relative youth and her previous promotion to assistant supervisor, along with
her work performance, there is a substantial possibility that, upon a vacancy opening,
Ms. Hill would eventually have been promoted to supervisor.

[258]     I am persuaded that there was a substantial or real possibility that
the plaintiff would have reached the supervisor level within the next five
years or so, but for the accident. She will no longer obtain that advancement
now as she is unable to work full-time. It was clear from Mr. Los’s testimony
that opportunities for promotion are dependent on the ability to work
full-time; he said that Ms. Hill would be eligible for promotion now only if
she “gets better.”

[259]     However, I am not persuaded that there is a real possibility that
she would have been promoted to the manager position in the future. Given the
internal competition for such a position and the gap in the evidence as to the timing
of an available opening, an award on this basis would be too speculative.

[260]     I
also disagree with the plaintiff’s submission respecting her retirement age.
Ms. Hill says that, absent the accident, she would have continued to work past
age 65. She points out that the job was her passion; that the job would have
been available; and that many workers at Butchart Gardens work into their 70s.
As a single mother of three children, she says that she would not have been
financially able to retire early. Indeed, despite her injuries, she suggests
that she is still willing to work past 65, if possible.

[261]     The
defendants say that there is no basis to conclude that Ms. Hill would have
worked past the standard retirement age. Again, they point to
statistics that show that women, particularly those with children, tend to
retire earlier. 

[262]     I am not persuaded that it is appropriate to use a retirement date
of more than 65 for the plaintiff’s absent-accident employment, given the
physical nature of the work and the statistical evidence referred to
immediately above. However, I am convinced that she is now at risk of earlier
retirement than would have been the case, but for the accident.

[263]     On April 29, 2014, after the conclusion of trial and while this
judgment was under reserve, the Chief Justice ordered amendments to s. 1 of the
Law and Equity Regulation, B.C. Reg. 352/81, changing the statutory
discount rates used in future loss calculations. As a result, the applicable
rates are now 1.5%, rather than 2.5%, for loss of future earnings or earning
capacity and 2%, rather than 3.5%, for all other future damages. These changes
impact on the calculations that the plaintiff relied on at trial. By the terms
of a consent order on July 21, 2014, the parties agreed to re-open the trial so
that the plaintiff could file revised reports from Mr. Wickson, with new future
loss calculations reflecting the reduced discount rates.

[264]     In general terms, the revised discount rates have the effect of
increasing the various present value calculations that the expert previously
provided. For example, applying the different discount rates to the present
value of a future income stream of $1,000, under the same assumptions
identified in the before and after reports, results in an increase from $18,500
to $20,800. This effect must also be kept in mind when considering the trial
submissions respecting the amount of the future loss awards as the calculations
relied on at the conclusion of the trial in March are necessarily conservative.

[265]     On July 23, 2014, the trial reconvened and the plaintiff entered the
revised reports into evidence. For ease of reference, I only refer below to Mr.
Wickson’s revised calculations.

[266]     Mr. Wickson provided future loss calculations respecting earnings
and pension based on a number of assumptions, absent the accident, including the
following, which the plaintiff submits I should accept:

·      
Full-time annual earnings of an assistant
supervisor of $57,742 based on 176 hours per month at $27.34 per hour;

·      
Promotion to full-time supervisor with annual
earnings of $68,302 at age 45 (October 29, 2017);

·      
Promotion to full-time manager with annual
earnings of $78,862 at age 52 (October 29, 2024); and

·      
Work full-time to age 67.

[267]     Mr. Wickson calculated the present value of the resulting total
income stream at $1,328,500.

[268]     Mr. Wickson also calculated future annual earnings of $28,645
through to age 67, with a present value of about $530,600. Mr. Wickson
assumed that Ms. Hill will continue to work only 105.6 hours per month (60
percent) at an hourly wage of $27.34 but also subtracted an additional $6,000
per year to reflect additional periodic absences from work. Deducting $530,600
from $1,328,500 results in a future earning loss of $797,900.

[269]     However, at 60 percent of an assistant supervisor’s salary, Ms. Hill
is currently earning $34,645 per year and there is no specific evidentiary
support for Mr. Wickson’s assumption that she will lose an additional
$6,000 per year for other absences. Further, Mr. Wickson’s calculation does not
contain any specific reduction for non-labour force participation for women
over the age of 60. On the other hand, nor does it take into account other wage
growth, apart from inflation, over the career path.

[270]     The Wickson calculation of $797,900 also assumes retirement at age
67. However, as Mr. Wickson pointed out in his report, if there is, as I
accept, a reasonable possibility that Ms. Hill will now retire earlier than she
would have absent the accident, some allowance should be made for the
associated additional losses. I accept that, as Ms. Hill ages, the
physical nature of her work will become increasingly harder for her to handle,
not just due to the natural ageing process but also because of her
accident-related injuries and ongoing difficulties.

[271]     Although the Wickson earnings approach provides a starting point for
assessing Ms. Hill’s loss of earning capacity, it must be modified. In
addition to the above, there are other negative and positive contingencies to
consider. Even without the accident, Ms. Hill might never have received any
further promotion, although her chances were reasonably good in terms of a
supervisor’s position at some point. Even if continuing employment was
available, as a single mother, I consider it less likely that she would stay in
the work force past normal retirement age of 65. The physical nature of the
work also takes a toll and, in my view, increases the likelihood of early
retirement for most people.

[272]     On the other hand, as a result of Ms. Hill’s injuries, there is now
a risk that she will retire earlier than otherwise would have been the case and
that, while she works, she may have to take unpaid leave from time to time due
to her injuries. Her continuing employment is also subject to Butchart Gardens
continuing to accommodate her individual needs as they have been doing for a
long time now.

[273]     If Ms. Hill were to be promoted from assistant supervisor to
supervisor at the end of October 2014 and then work full-time to age 65, at
about $68,300 per year, the present value of those earnings, using Mr.
Wickson’s tables, approximates $1,187,350. Using Mr. Wickson’s Table 2, which
provides a method for calculating the present value at a $1,000 annual loss,
the present value of Ms. Hill earning $34,645 annually through to age 65 is
about $606,000. Subtracting that figure from the former figure results in an
arithmetic loss of about $580,000.

[274]     Taking all of the foregoing contingencies into account, I assess the
plaintiff’s loss of future earning capacity at $600,000.

[275]     The plaintiff also claims for future loss of employment benefits. As
noted above, the parties agree as to the subsidy rate for the benefits, but
differ in their overall calculation of the future loss because they differ in
their underlying assumptions. The defendants say that the loss of benefit claim
should be capped at 2017 (three years of loss at $1,335 per year), for a total
of $4,065, an amount that the defendants have included in the $175,000 global
assessment figure discussed above. The plaintiff says that the present value of
her future loss on the 60 percent schedule versus full-time continued through
to her retirement approximates $23,500. Based on my findings, and using age 65
as the retirement date, but acknowledging the various contingencies already set
out, I award $23,000 for future loss of employment benefits.

[276]     The plaintiff says that, in addition to the amounts claimed above,
she will also lose $86,500 in future pension benefits (Mr. Wickson’s revised
calculation with the amended discount rates is now $139,400). As the pension
package at Butchart Gardens is calculated based on a percentage of the employee’s
average earnings over their highest five years of consecutive earnings, the
plaintiff says that her pension will be correspondingly diminished by her 60
percent schedule and her failure to acquire a promotion. Once again, Mr.
Wickson’s calculations assume an absent-accident retirement at age 67, a
promotion to supervisor by October 29, 2017, and a further promotion to manager
by October 29, 2024.

[277]     The defendants say that $15,000 is a reasonable amount for loss of
future pension benefits. They indicate that Mr. Wickson on cross-examination
admitted that the pension calculations were “inherently uncertain” as they rely
on a number of assumptions that may not be borne out in the future, as well as
other future contingencies unrelated to the plaintiff. They say that the
valuation should be based on the plaintiff working 60 percent until 2017, with
no pension loss assessed beyond that period. As I have already concluded that
the plaintiff’s losses will continue into the future, I necessarily reject this
submission.

[278]     According to Mr. Wickson’s revised calculations, based on the same
assumptions that he applied to his loss of earning capacity calculations, the
present value of the pension entitlement “except for the accident” is $258,600
and the “with accident” value is $119,200, resulting in a loss of $139,400.

[279]     In considering Mr. Wickson’s opinions in this regard, I not only
take into account the differences between his assumptions and my findings but
also agree with the defendants that Mr. Wickson clearly conceded, in his report
and evidence, that “any estimate of future pension amounts is inherently
uncertain.”

[280]     Taking into account all the factors that I have identified, I
conclude that $110,000 is a fair assessment of Ms. Hill’s loss in this regard.

Cost of Future Care

[281]     The plaintiff is entitled to compensation for the cost of future
care based upon what is reasonably necessary to restore her to her pre-accident
condition, insofar as that is possible. There must be medical justification for
each claimed item of future care and the claims must be reasonable: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Gignac v. Insurance
Corporation of British Columbia, 2012 BCCA 351.

[282]     The quantification of damages for the cost of future care is an
assessment, not a precise accounting exercise. Adjustments must be made for
contingencies, such as the possibility of improvement in the plaintiff’s
condition or the prospect that some additional care may be required beyond that
predicted as of the date of trial: see Smith v. Moshrefzadeh, 2012 BCSC
1458 at para. 123.

[283]     At the conclusion of the trial in March, the plaintiff claimed a
total of $182,698 for the cost of future care. This includes a number of home
assistive devices (both memory aids and exercise equipment), medical equipment
(safety aids and mattress upgrades, medications, and mobility aids), medical
and professional services (vestibular therapy, massage therapy, and
psychological counselling), housekeeping and maintenance costs, and
transportation costs related to her commute to work.

[284]     The details of these claims were set out in a report by Barbara
Phillips. Dr. Filbey endorsed many of the listed items in his second
report. He testified that the goal of future care for Ms. Hill will be symptom
management, not full resolution. He stated that with chronic pain he recommends
therapies continue while they are contributing to some progressive benefits,
followed by periodic therapy thereafter during periods of symptomatic
worsening. He leaves the choice of therapy up to the patient. In his view,
twelve visits a year for some type of passive modality (massage therapy,
physiotherapy, acupuncture, or the like) is a reasonable expectation for a chronic
pain patient.

[285]     Dr. Filbey did not support Ms. Phillips’ recommendation for
positional aids or pain management aids (he notes that a hot water bottle is a
standard item in most homes). He refrained from comment on the claimed adaptive
aids (hearing attenuators and a temporo-mandibular joint guard) and
transportation costs on the basis that they do not fall into his area of
expertise.

[286]     Dr. O’Breasail commented on the counselling, indicating that it
would be reasonable for the plaintiff to attend psychological counselling
monthly for two years. Finally, Lorelei Lew discussed the need for ongoing
vestibular therapy. She indicated that while the plaintiff is equipped with
home-based exercises to manage her vestibular symptoms, most patients require
some short-term therapy support to continue seeing progress. She testified that
she would prefer to see a patient at least twice per year, probably for no
longer than five years. 

[287]     The defendants accept that the plaintiff requires non-steroidal
anti- inflammatory drugs for symptom management, short-term psychological
therapy, some short-term use of antidepressants, and some passive therapy.
However, they say that the medical evidence is insufficient to support the need
for many of the other claims for future care, including the claims for medical
equipment. As to the passive therapies, the defendants point out that Dr. Prout
was in favour of active therapies instead, while Dr. Filbey only supported the
monthly use of one modality in the long-term. They submitted that a fair and
reasonable award under this head would be $20,000, broken down as approximately
$8,000 for housekeeping, $5,000 for counselling, $5,000 for antidepressants and
$2,000 for anti-inflammatories.

[288]     While there must be a medical basis for the recommended items, there
is no need to have a physician specifically endorse each item or treatment. In Gregory
at para. 39, the Court of Appeal stated that it is not necessary “that a
physician testify to the medical necessity of each and every item of care that
is claimed,” but only that “there must be some evidentiary link drawn between
the physician’s assessment of pain, disability, and recommended treatment and
the care recommended by a qualified health care professional.”

[289]     In Gregory, the trial judge had rejected claims for the cost
of housekeeping assistance and yard maintenance because none of the medical
practitioners had recommended these items. The Court of Appeal substituted an
award of damages under that head, saying that there was an evidentiary basis
for the claimed costs as the physicians who testified all indicated that the
plaintiff had difficulty with prolonged heavy or repetitive motions above
shoulder level, therefore providing a basis for recommendations for assistance
with heavy housework and yard maintenance.

[290]     I also keep in mind that I must analyze the evidentiary link with
respect to each item sought by the plaintiff: Gignac, at para. 32.

Transportation
costs

[291]     The plaintiff claims the cost of commuting to her employment at
Butchart Gardens via a daily trip on the Brentwood Bay ferry. She says that she
is incapable of making the long drive around on the Malahat twice daily, taking
the ferry instead lessens her symptom burden.

[292]     While I accept that this is so, I also accept the defence submission
that the plaintiff has not proven that her decision to take the ferry will
cause any future loss. As they point out, taking the ferry cuts the plaintiff’s
mileage each day in half, with a corresponding reduction in fuel costs and wear
and tear on her vehicle; therefore, the savings offset the ferry cost. The
plaintiff did not lead any evidence as to the comparative cost associated with
each mode of transportation and as a result has failed to prove a loss. I
decline to make an award for this item of future care.

Housekeeping

[293]     The plaintiff claims approximately $60,000 for the future cost of
assistance with housekeeping and yard maintenance. She says that bi-weekly and
seasonal assistance are both medically necessary as she is not physically
capable of handling the tasks required around the home. Dr. Filbey endorsed
these costs in his second report. In his report, however, Dr. Prout gave the
opinion that Ms. Hill “does not appear to be limited with respect to basic
physical activities such as housecleaning or housekeeping” and that, as a
result, assistance with these activities was unnecessary.

[294]     The plaintiff says that I should put no weight on Dr. Prout’s
conclusion as he did not have a factual basis for his conclusion. Instead, the
plaintiff says he was speculating as to Ms. Hill’s housekeeping capacity based
on her employment as a gardener.

[295]     On cross-examination Dr. Prout was asked about his conclusion on
this point. He agreed that he did not ask any questions about housekeeping
abilities during his examination of the plaintiff. His conclusion was not based
on the history he took from her, but instead on the normal neurological
examination and balance testing performed by the examining neurologists. Dr.
Prout also reviewed his notes and indicated that he had rejected the need for
housekeeping in part on the basis that Ms. Hill was working as a gardener. He
testified that “somebody who’s able to do gardening work, even not very
physical gardening work, I would assume is able to do housecleaning.” He agreed
that this was the extent of his analysis on this point.

[296]     I agree with the plaintiff that I should give little weight to Dr.
Prout’s opinion on Ms. Hill’s residual capacity to undertake housekeeping or
yard maintenance tasks. His opinion was not based on fulsome information and,
in particular, disregarded Ms. Hill’s own experience with these
activities.

[297]     Taking into account that the extent of the plaintiff’s needs for
housekeeping and yard work will also partially depend on where she lives from
time to time, I consider an award of $2,000 per year to age 75 reasonable.

[298]     I am satisfied that Ms. Hill has demonstrated the reasonable
necessity of the following, as set out in Ms. Phillips’ report, including
frequency and present costs:

·      
Memory aids: whiteboard and markers – $47 every
three years; daytimer ‑ $15.70 annually;

·      
Exercise equipment: $1,200 every 15 years;

·      
Bathroom safety aids: $108 every three years;

·      
Pain management aids: TENS machine – $145 every
five years; and supplies – $67 annually; medications – $420 annually;

·      
Mobility aids: walking poles – $100 every five
years;

·      
Medical, professional and support services: passive
therapies – $750 annually to age 75; vestibular physiotherapy – $310 annually
for five years; psychological counselling – $1,980 annually for two years;

·      
Housekeeping and yard work assistance: $2,000
annually to age 75.

[299]     The balance of the plaintiff’s claims under this head of damages are
dismissed.

[300]     Using Mr. Wickson’s revised tables to incorporate the change to the
discount rate, the present value of the ongoing costs identified above are as
follows:

·      
Memory aids and daytimer – $926;

·      
Exercise equipment – $2,068;

·      
Bathroom safety aids – $1,090;

·      
TENS machine and supplies – $2,820;

·      
Medications – $11,978;

·      
Walking poles – $626;

·      
Passive therapies – $17,648;

·      
Vestibular therapy – $1,472;

·      
Counselling – $3,879; and

·      
Housekeeping and yard work – $47,060.

[301]     I award $89,567 for cost of future care. The positive and negative
contingencies under this head of damages are, I find, offsetting and require no
further adjustment to that figure.

[302]    
For convenience, I summarize the various heads
of damage and awards below:

[303]     Counsel may speak to any matters arising from the future loss
awards.

[304]    
The plaintiff is also entitled to Court Order Interest
on past pecuniary losses in accord with the Registrar’s rates from time to
time. Finally, absent any Offers to Settle, Ms. Hill is entitled to the costs
of the proceeding on Scale B. Counsel may make submissions in the event of a
dispute arising out of any Offer to Settle or, by consent, submit a different
costs order.

                “M.D.
Macaulay, J.”              

The
Honourable Mr. Justice Macaulay