IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20141008

Docket: M114476

Registry:
Vancouver

Between:

Zdenka Cumpf

Plaintiff

And

Adrianna Barbuta
and BMW Canada Inc.

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]         
The plaintiff claims damages arising from a motor vehicle accident of
November 28, 2009 (the “Accident”).

[2]         
The defendants admit liability and, accordingly, the issues to be
determined are non-pecuniary damages, loss of earnings to the date of trial,
loss of future earning capacity, cost of future care and special damages.

[3]         
A significant issue between the parties is the extent to which the
plaintiff, Zdenka Cumpf, was suffering, and likely would continue to suffer,
from injuries sustained in an earlier motor vehicle accident in February 2007 (the
“Previous Accident”).

[4]         
Ms. Cumpf’s son, daughter and husband testified. I will refer to them by
their first names, Zarko, Matea and Vladimir, not intending any disrespect but
for the purpose of clarity.

The Accident

[5]         
The Accident occurred on November 28, 2009 as the plaintiff was driving
a 2007 Toyota Sienna northbound on Arbutus Street in Vancouver when it was in a
collision with a BMW vehicle leased from the defendant BMW Inc. and driven by
the defendant Adriana Barbuta.

[6]         
The plaintiff’s vehicle was stopped in the northbound lane waiting for a
traffic light to turn green on West Broadway which would allow her to proceed
straight through the intersection of Arbutus and West Broadway. The defendant Ms.
Barbuta’s vehicle was also northbound on Arbutus and stopped at the light but
was in a traffic lane designated for vehicles turning left.

[7]         
When the light turned green, Ms. Barbuta’s vehicle moved abruptly to the
right and struck the plaintiff’s vehicle on the driver’s side with such force that
it moved the plaintiff’s vehicle sideways to the right onto the adjacent
sidewalk, causing it to almost turn onto its side. The top of the plaintiff’s vehicle
hit a telephone pole situate adjacent to the sidewalk.

[8]         
The plaintiff’s young daughter, Matea, (then about nine years old) was
in the front seat and her son, Zarko, (then about 22 years old) was in the
backseat.

[9]         
Zarko testified that he sustained a tear to his rotator cuff and his
sister sustained a soft tissue injury. He testified that immediately after the
accident his mother was “frozen” to the wheel and would not get out of the car.
Ultimately she did and a friend who lived nearby drove them to their home in
Kitsilano.

The Previous Motor Vehicle Accident (the “Previous Accident”)

[10]     
The Previous Accident occurred in February 2007 when Ms. Cumpf’s vehicle
was rear ended while stopped at an intersection for a red light. She was seen
by her family physician for complaints of pain in the area of her left
trapezius muscle radiating down into her left arm, pain and reduced range of
motion in her neck, headaches, pain in her shoulder, vertigo and tinnitus in
her left ear. X-rays of her cervical spine showed “subtle” degenerative disc
disease at C4-5, a “slight straightening of the cervical lordosis” and a
slightly narrowed C4-5 disc space.

[11]     
Ms. Cumpf attended physiotherapy between March and July 2007 for
symptoms in her neck and shoulders. She also attended monthly chiropractic
treatments between March and July 2008 as a result of symptoms which fluctuated
between complaints of left-sided neck pain, trapezius shoulder symptoms and
weakness, paresthesia in her left hand and headaches.

[12]     
She had an MRI of her cervical and lumbar spine done in June 2008 which
found:

… disc protrusions at the C5/6 and C6/7 levels without
significant narrowing of the spinal canal or neural foramina.

In the lumbar spine, there is
a right foraminal and right far lateral disc protrusion that exerts some mass
effect on the exited right L4 nerve root. It is noted that this finding is on
the opposite side to the patient’s symptoms.

[13]     
The physician who attended Ms. Cumpf at the medical clinic, Dr. Bowlsby,
noted on a CL 19 dated May 20, 2008 and sent to the Insurance Corporation of
British Columbia (ICBC) on May 23, 2008, that when seeing her that day, Ms.
Cumpf was still complaining of headaches, left neck and shoulder pain and
weakness and tingling in her left hand. Dr. Bowlsby noted that there was tenderness
over her cervical and thoracic spine, she was attending a chiropractor and
massage therapist, she was receiving acupuncture treatments and her capacity
for work was “light”. Dr. Bowlsby wrote on the CL 19: “She had to quit her job
as a landscaper after the MVA. She now has management duties”. The physician also
noted: “Ms. Cumpf is receiving primary care from her chiropractor, not from our
clinic”. I will return to discussion about the CL 19 later in these reasons.

[14]     
Ms. Cumpf was assessed by a neurosurgeon, Dr. Brian Thiessen, on October
30, 2008. He was of the opinion that she had not sustained any neurological
injury and that her symptoms were related to soft tissue injuries of her neck
and shoulder.

[15]     
Neither Dr. Bowlsby nor Dr. Thiessen was called to give evidence at the
trial. As stated, one of the main issues in this case is the extent to which Ms.
Cumpf had recovered from injuries sustained in the Previous Accident and the
extent to which, if any, those injuries were aggravated by the Accident.

The Plaintiff Prior to the Accident

[16]     
The plaintiff was born in Bosnia in the former Yugoslavia on July 17,
1965. She moved to Canada in 2001 with her husband and two children, Zarko (now
aged 25) and Matea (now aged 17).

[17]     
After a brief period living at a “Welcome House”, Ms. Cumpf and her
family lived in New Westminster in an apartment with a number of other families
who had emigrated from Bosnia. The family later moved to the Kitsilano area of
Vancouver where she was working and where her children attended school.

[18]     
Ms. Cumpf maintained close contact with a number of friends who had also
emigrated from Bosnia. She often entertained groups of friends and their
families in her home on Serbian and religious holidays and when there were fireworks
displays in English Bay. She enjoyed cooking, preparing national dishes and
entertaining her friends and their families at her home. She also enjoyed
dancing on these occasions, often being the first one up to dance and encouraging
others to follow her.

[19]     
Ms. Cumpf testified about the injuries she had sustained in the Previous
Accident and the treatment she had received. She testified that she had
recovered from those injuries by the time of the Accident. She did injure her
lower back at work lifting a toilet in March 2008, aggravating the injuries, and
sought treatment from her chiropractor. In September 2009, she fell off a stool
while working, injuring her ankle, and again sought further treatment.

[20]     
In cross-examination, Ms. Cumpf agreed that she testified at her
examination for discovery held on April 25, 2012 that she had recovered from
her “whiplash” sustained in the Previous Accident after “a few months”.

The Plaintiff following the Accident

[21]     
Ms. Cumpf testified that following the Accident she felt pain in her
neck, a burning pain in both shoulders which radiated into her arm and back
pain which radiated into her right leg. She testified that for the first time
she experienced pain in her hips which would wake her up at night.

[22]     
She attended physiotherapy and massage therapy which she said helped
relieve the pain but only temporarily. At the time of trial she had ceased
attending physiotherapy which she felt was no longer needed and only
occasionally went to massage therapy. She testified that she would go to
massage therapy more often if it were not for the expense of the treatments. She
attended a chiropractor from time to time which she said she found helpful. She
has also gone to a naturopathic clinic for injections which she said helped
with her headaches, neck and hip pain. She has had three different injections
to assist in relieving her pain. She was referred to a pain management clinic
but did not go because of the cost of treatment and the necessity for a
referral from ICBC. She still complains of pain in the same areas which
troubled her immediately following the Accident.

[23]     
Ms. Cumpf has been prescribed a number of prescription medications to
try to assist her in dealing with her pain, headaches, mood and difficulty
sleeping including Tylenol 3, Naproxen, Elavil, Gabapentin, Nortiptyline,
Lyrica and Cymbalta.

[24]     
Ms. Cumpf testified that she attends the gym and swims on a regular
basis. She swims for 20 to 30 minutes and exercises on a stationary bike. She
said that if she did not do the exercises she would not be able to carry on
with the work she is presently doing.

[25]     
Ms. Cumpf said that her neck, arm, shoulder and back still hurt. She testified
that she is unable to do most housekeeping; her daughter and son do most of the
housekeeping in their home. Her daughter does the vacuuming, dusting and
cleaning. They help her with shopping because she cannot carry groceries. She
still does some cooking, but her husband and daughter do most of the cooking.

[26]     
Ms. Cumpf testified that initially after the Accident she did not want
to see any of her friends and that she basically stopped socializing. She
testified that “after a while “she realized she needed to socialize to get
better and started seeing some of her friends and going out more often, but her
social circle of friends was smaller. She testified that she did not entertain
as she had before.

[27]     
She testified that she felt that the biggest effect of the Accident was
the impact it had on her relationship with her family. She said she felt she had
let her family down, particularly her daughter. She testified that she felt she
was no longer there for her daughter and was concerned that her daughter would
change her plans to attend University in order to stay home and take care of
her.

[28]     
She testified that her relationship with Mr. Cumpf had changed, that
their intimate life as husband and wife had been significantly altered.

[29]     
Ms. Cumpf testified that she felt she has had to give up her plans “to
be somebody and to do something more”. She said that she has “become everything
I have disliked before when I am not working: I feel I am lazy, yet I cannot
work”. She testified that it is hard for her to accept that she cannot work as
she had prior to the Accident.

The Plaintiff’s Work History

[30]     
When she settled in New Westminster, the plaintiff initially found work
cleaning houses and took several ESL courses to improve her English language
skills. She then took a course in residential building management and obtained
her certificate in 2003.

[31]     
She obtained her first job as a Property Manager in 2003 in the
Kitsilano area of Vancouver with Duncan Group of Properties (“Duncan”), an
owner of various apartment buildings. She initially managed two buildings and a
third was added in 2007. She was responsible for taking rental applications
from new tenants, showing units to tenants, collecting rents, cleaning,
maintenance, gardening and landscaping including grass cutting and weeding. She
also did project work, such as redecorating suites and major gardening, which
she invoiced separately as extra work under her agreement with Duncan. In
addition, she was responsible for the landscaping at four other apartment
sites.

[32]     
Much of the project work involved the renovation of suites after tenants
vacated and before the suites were re-rented. She testified about the painting
and restoration work she did, assisted by her husband when he was home on
weekends. She took some pride in testifying about the nature of the work she
did.

[33]     
Ms. Cumpf‘s contract as a Property Manager with Duncan was cancelled effective
October 31, 2008, about one year prior to the Accident.

[34]     
Mr. David Everett, a principle of Duncan, testified that Ms. Cumpf’s
contract was terminated because the landscaping was not being done properly and
because she was not taking direction from her superior (her cousin), so he
decided to make a change.

[35]     
Ms. Cumpf testified that she was terminated within one month of a
discussion with her cousin in which he had requested that she clean a number of
his buildings for a fee, a proposition Ms. Cumpf was not prepared to agree to because
she did not think it was fair. Ms. Cumpf testified that she thought she was
terminated because she “did not want to play the way they tell me”.

[36]     
It is not necessary for me to resolve why Ms. Cumpf’s contract was
terminated – whether because of the disagreement with her cousin or because of Mr.
Everett’s dissatisfaction with her work. Mr. Everett did allude to the fact
that Ms. Cumpf’s inability to take direction from the cousin was apparent during
Monday morning management meetings and that he would follow the cousin’s
recommendations regarding the continuation of Ms. Cumpf’s employment. It is
also clear from the evidence that the injuries sustained by Ms. Cumpf in the
Previous Accident and an aggravation of those injuries which occurred when she
attempted to lift a toilet in the Spring of 2008 were still bothering her at least
in the Spring of 2008 and may have affected her performance.

[37]     
Following her termination from Duncan, Ms. Cumpf found employment
cleaning apartments in New Westminster and East Vancouver. She quit one job at
which she was working as a contractor.

[38]     
Ms. Cumpf testified that, in addition to working for Duncan, she also
earned $700 to $800 per month in cash cleaning apartments in the downtown area
of Vancouver. She said she did not declare such income on her income tax return
as she was paid in cash. She said she sent a minimum of approximately $10,000
annually home to her parents and her husband’s family in Bosnia to assist them
financially.

[39]     
Ms. Cumpf’s evidence is that she wanted to become a Property Manager
where she could take on the management of several properties. In September 2009,
she took an ESL course with a view to improving her English and she intended to
complete her grade 12 education and then take a course in Property Management. She
testified that the Accident prevented her from having an opportunity to pursue
this option. She registered in ESL again in January 2010; she completed the
course and achieved a “satisfactory” grade. She said that she did not do well
as a result of her injuries.

[40]     
In January 2010, a former tenant with whom she had become familiar
recommended her to the owner of an adjacent apartment building who was looking for
a manager for his building. Ms. Cumpf took the position and has remained in it
to the date of trial.

[41]     
Ms. Cumpf testified that she thought she would be able to tolerate the
pain and discomfort she had and that it would eventually pass as it had in the Previous
Accident. She testified that this has not occurred. She said that after an
initial deep cleaning of the apartment (with the assistance of her children),
she was sick in bed for two days with leg, back and knee pain.

[42]     
She testified that she earns $730 per month in her current position and can
earn more for extra work when she is asked to take it on. She testified that her
children assist her in performing gardening, cleaning and other work in the
apartment; she pays them for their work.

[43]     
The plaintiff’s gross and net business income and her line 150 income since
2005 have been:

[44]     
The reason for the difference between the plaintiff’s gross and net
business incomes and her line 150 income was not explored either in direct or
cross-examination. I presume, therefore, that the plaintiff’s line 150 income accurately
reflects her actual net income.

Lay Witnesses

[45]     
The plaintiff was described by her family and a number of witnesses who
were long-time friends. Each gave evidence about the plaintiff prior to the
Accident and how the injuries sustained in the Accident affected her.

A.    Family
Members

1.  
Zarko Cumpf

[46]     
Zarko described how the accident occurred, as expressed above. Zarko
came to Canada with his parents from Bosnia in 2001. He attended elementary
school and high school in New Westminster.

[47]     
Following graduation from high school, Zarko obtained a diploma in
commerce and then a Bachelor of Commerce degree in Business Management. He
presently works as a sales executive.

[48]     
Zarko testified that he started working with his mother at an early age,
assisting her in mowing lawns, painting, raking leaves, landscaping, cleaning
and assisting in renovations at the various buildings she managed.

[49]     
He testified that his mother managed three buildings at the time.

[50]     
Zarko described his mother’s personality before the Accident as being
joyful, energetic and social. She was a person who was “there for everybody”. He
said she was the “rock” of the family.

[51]     
Zarko testified that before the Accident the family socialized regularly
with Croatian and Serbian friends on holidays and religious days. They had
friends over to their apartment for other social events, such as the fireworks
in English Bay. He testified that his mother loved to cook elaborate
traditional meals for family and friends on these occasions, making her own
pita and cabbage rolls, both of which took many hours of preparation. He
testified that his mother had loved to dance at these gatherings.

[52]     
He testified that after the Accident his mother was “completely
different”: she appeared to tire easily and she did not like to socialize or
have people over to the house. He said that she had asked him not to bring his
friends over because the noise was too loud. He testified that she no longer
cooked the way she used to and that when she tried to cook she would be
exhausted for days after, frequently laying on the couch.

[53]     
Zarko testified that his mother now manages only one building and that
she does not have the tolerance to look after the gardens or clean as she did
prior to the Accident. He said that she gets exhausted quickly when trying to
do so and often complains of pain.

[54]     
He testified that before the Accident his mother used to walk frequently
but did not do so as much after the Accident, walking about 1/5 of the distance
before she becomes tired.

[55]     
In cross-examination he agreed that his mother was not working at the
time of the Accident. He said she had been offered a position, but could not do
the work because of her injuries.

[56]     
He agreed that it was at that time that she had wanted to improve her
English and become a Property Manager.

2.  
Matea Cumpf

[57]     
Matea, the plaintiff’s 17 year old daughter, testified about family life
before and after the Accident and how her role in the household has changed.

[58]     
 She described that before the Accident her mother was energetic, full
of life, hard-working and enjoyed having her friends from the former Yugoslavia
to her house to socialize, particularly on various cultural and religious
occasions.

[59]     
Matea described her mother’s cooking abilities as “amazing” and said
cooking is an important part of Serbian culture.

[60]     
Matea testified that, after the Accident, her mother, although she tried
to keep up her prior activities, was not able to. She said her mother couldn’t
do the elaborate type of labour intensive cooking (preparation of pita and
cabbage rolls and other cultural specialties) she had done before and that the
family did not socialize as before. She testified that her mother was unable to
vacuum, garden or clean as before. She testified that her mother is stubborn
and attempts to do these chores, but when she tries she will spend a number of
days thereafter at home lying on the coach in pain.

[61]     
Matea testified that she now does most of the gardening, cooking,
cleaning and laundry that her mother did before the Accident. She spends two to
three hours a week doing the laundry, an hour each day cooking and an hour
cleaning.

[62]     
Matea is 17 years old and in grade 12 at high school. She testified that
she believes her plans for her future have changed as a result of the Accident
as she will probably stay at home to assist her mother in performing household
chores rather than immediately pursuing her own career after graduation.

[63]     
In cross examination Matea agreed that she had traveled to Serbia and
Greece with her mother during the summers of 2009, 2011 and 2013 and that
during that time they had taken bus trips which lasted up to 10 hours with
other family members. She also agreed that her mother had a Facebook page which
displayed travel pictures showing “lots of smiles” and that they had enjoyed
their trips.

[64]     
In cross-examination Matea disagreed with the suggestion that her mother
had any physical problems before the Accident.

3.  
Vladimir Cumpf

[65]     
Vladimir Cumpf is the plaintiff’s husband. He testified that when he and
his wife immigrated to Canada in 2001 he found work as a marine carpenter.

[66]     
When his employer went into bankruptcy, he became a long distance truck
driver. He now owns his own truck and, because he drives for 24 hour periods,
pays a helper to share the driving.

[67]     
He testified that he pays the helper between $65,000 and $75,000 per
year and that it had been his plan with Ms. Cumpf that, once their daughter
Matea graduated from high school, Ms. Cumpf would share the driving with him
instead of employing a helper.

[68]     
Mr. Cumpf testified that the plaintiff had complained “a little bit”
about neck pain following the Previous Accident in 2007 but that her injuries
had cleared up. He said that she continued working following that accident.

[69]     
He testified that although he was away from home much of the time
driving, when he was home he assisted Ms. Cumpf with landscaping, renovations
and painting in the buildings she managed.

[70]     
He testified that prior to the Accident she was a very good homemaker
and that they did a lot of entertaining with regular big gatherings of Serbian
friends at their home. He testified that since the Accident they no longer do
the entertaining they did; the plaintiff tries to do what she did before the
Accident, but she then suffers for her efforts over the following days and
becomes withdrawn and sad that she cannot do what she used to do. She will
often just go to bed.

[71]     
Mr. Cumpf testified that his son and daughter now do much of the
household work. He testified their intimate relations as husband and wife had
been affected because of her injuries.

B.    Friends
and Acquaintances

1.  
Tanja Cetkovic

[72]     
Ms. Cetkovic testified that she is a good friend of the plaintiff. She
is formerly from Bosnia and came to Canada as a refugee in 1997.

[73]     
Ms. Cektovic testified that she saw Ms. Cumpf two to three times a month
socially and spoke with her by telephone, Skype or on the Internet almost daily.

[74]     
Ms. Cetkovic described her impressions of Ms. Cumpf before and after the
Accident. She said that before the Accident Ms. Cumpf was happy, energetic and
liked to entertain her friends. She testified that after the Accident Ms. Cumpf
complained of pain all over, her mood changed, she worried about her health, she
did not socialize as before and she “liked to be by herself”. She testified that
the plaintiff was “really different now”.

[75]     
In cross examination Ms. Cetkovic was asked about the last time the
plaintiff had hosted a party. She responded “probably a number of years ago”. When
counsel suggested it could have been in 2007, she responded “maybe 2005”.

2.  
Mr. Solar Nebojsa

[76]     
Mr. Nebojsa has known the plaintiff since 2001. His family lived in the
same building in New Westminster as did the Cumpf family. He said there were
about 10 families from the former Yugoslavia who lived in the apartment
building at the time. His wife and the plaintiff socialized often as their
children grew up together. He testified that he and his wife visited the Cumpfs
at their home in Kitsilano both before and after the Accident, although not as frequently
since the Accident.

[77]     
He testified that before the Accident Ms. Cumpf was full of energy,
active, held several jobs and “nothing was hard for her”. He said he noticed a
“big change” in her after the Accident; she was not as energetic and didn’t
smile as much. He described her as being the first one to dance at Serbian get-togethers
before the Accident, but that since the Accident he had not seen her dance.

[78]     
In cross-examination he testified that the plaintiff and her family had
attended a religious party at his house in January 2014 and that he and his
wife had attended a party at the plaintiff’s house in May 2013, at which there
were about 20 others present.

3.  
Ms. Mila Josipovic

[79]     
Ms. Josipovic described herself as a good friend of Ms. Cumpf. She was
born in Bosnia-Herzegovina and had come to know Ms. Cumpf over the last 12 to
13 years. She saw the plaintiff much more frequently before the Accident but,
because of her husband’s illness, she does not see Ms. Cumpf as often, although
the two talk regularly on the telephone.

[80]     
Ms. Josipovic testified that since the Accident Ms. Cumpf’s behavior has
changed; she is not the happy person she was before and she is in pain.

[81]     
Ms. Josipovic worked as a Residential Building Manager managing three
apartment properties. She testified that her income from employment over 2010,
2011 and 2012 was respectively $82,683, $69,810 and $70,671. She testified that
she earned less in 2011 and 2012 because a building was sold and replaced with an
apartment which had fewer suites.

[82]     
In cross-examination Ms. Josipovic testified she is aware of the work that
Ms. Cumpf is doing in the apartment she presently manages and that she is doing
“very light duty” work and is assisted by her son. She testified that she had
seen Ms. Cumpf several times in 2014, twice when they had gone to a concert
together and several times when Ms. Cumpf had visited her.

4.  
Ms. Tatjana Gunderlj

[83]     
Ms. Gunderlj has known Ms. Cumpf since 2001 when the two met at the
airport in Belgrade on their way to Canada. They have remained close friends
since that time, seeing one another virtually every week.

[84]     
Ms. Gunderlj testified about her observations of the plaintiff prior and
subsequent to the Accident. She described the plaintiff as being ”full of
life”, “very vivacious” and social, hosting parties and having lots of friends
over to her house. She testified that Ms. Cumpf liked to dance, entertain and
spend long hours preparing special homemade meals.

[85]     
Ms. Gunderlj testified that after the Accident she noticed a “big
change” in the plaintiff’s behavior; she didn’t visit much, she didn’t have the
same energy and when they went walking Ms. Cumpf would have to stop and rest. She
testified that the plaintiff had told her that she was in a lot of pain, had
trouble sitting in the car without being in pain, was depressed and didn’t want
visitors at her house. She said that when she and her husband now visit the
Cumpfs they go out for dinner, whereas prior to the Accident Ms. Cumpf prided
herself on doing the cooking. She testified that Ms. Cumpf appeared to tire
easily, would need to stop and rest when they shopped together and had to lie
down when they returned from shopping.

[86]     
In cross-examination Ms. Gunderlj agreed that she and Ms. Cumpf and their
husbands had been to a number of concerts together, the last one being two to
three months prior to trial. She agreed that she and Ms. Cumpf went for short
walks on Kitsilano Beach. She testified that she planned to attend a religious
party on May 2014 at the plaintiff’s house and said this was considered “an
obligation”; each family was obligated to entertain at their house and each
family who came contributed food and desserts.

5.  
Mr. Victor Kern

[87]     
Mr. Kern testified that he had resided in an apartment unit managed by
Ms. Cumpf at 2275 York Street in Vancouver commencing in 2005.

[88]     
He testified that, before moving in, Ms. Cumpf renovated the unit; she
“rebuilt’ the entire apartment and Mr. Cumpf helped her do the carpentry work. He
testified that she was a very friendly and outgoing person. He thought she was
very efficient in the work she did: gardening, painting, snow removal, raking
leaves, vacuuming and cleaning the apartment. He testified that she got along well
with the other tenants.

[89]     
At one point she advised him that she had been laid off, he recommended
her as manager of an apartment across the street and she took the position.

[90]     
Mr. Kern testified that following the Accident Ms. Cumpf no longer
smiled as much and that her personality seemed to have changed. He could no
longer give her a hug when they met, because she complained of a sore back. He
said that he no longer saw her working around the apartment and that the lawn
and hedge cutting were now done by her daughter and husband.

[91]     
Mr. Kern said “OK” when it was suggested to him that it was in early
2010 that he saw the plaintiff moving rocks, raking, gardening and cutting the
grass and hedges and that the first time he heard she was in the Accident was
“after” these activities.

[92]     
As the defendants suggest, Ms. Cumpf’s evidence about what work she could
and could not do was inconsistent with Mr. Kern’s observations. I will deal
with this submission now.

[93]     
Ms. Cumpf’s evidence was that she thought she could perform the work and
it was only after the initial “deep clean” that she discovered she was unable
to do so fully. It is likely that the work Mr. Kern observed the plaintiff
performing was that initial deep clean. He testified that he made his
observations regarding the work of the plaintiff in “early 2010” which would be
at the time the plaintiff started the position and performed the initial deep
clean. I find there is no inconsistency between the evidence of Mr. Kern and
the plaintiff.

Medical evidence

1.  
Ms. Szetlana Rados

[94]     
Ms. Rados is a clinical counselor and was qualified to give opinion
evidence in the diagnosis and clinical treatment of the psychological
consequences of trauma. Ms. Rados has a degree in clinical psychology and a
Master’s degree in integrative psychotherapy. She has practiced as a clinical
counselor providing psychotherapy to patients for the past 29 years. She
testified that a significant portion of the clients she treats have suffered
psychological trauma arising from motor vehicle accidents.

[95]     
Ms. Rados saw the plaintiff for assessments and treatment on a number of
occasions between January 15, 2013 and November 20, 2013. At the request of Ms.
Cumpf’s counsel, she prepared a medical-legal report dated January 4, 2014. Ms.
Rados was cross-examined on her report at trial.

[96]     
In her report Ms. Rados wrote:

…She was (and still is) highly invested in perceiving herself
as a strong, down to earth, honest and hardworking person, as well as a nearly
perfect homemaker, wife and mother – the values installed into her by her
parents. Due to the extreme post-MVA physical pains and consequent limitations;
Mrs. Cumpf has been unable to engage in most of her regular daily duties, both
at home and at work. Furthermore, for those tasks that she is capable of
performing with less intense pain; she has no motivation any longer.

As everything feels like a great deal of struggle; Zdenka has
lost her internal drive. Frustrated with constant and severe pain and
consequent limitations, Zdenka has become depressed. Her husband and her
children have been forced by her lack of engagement to take over with household
activities, while at work, she pays someone to perform the tasks that require
more physical effort. She feels guilty and deeply ashamed of this, being the
kind of person that she is. “I have become the kind of a person that I have
always despised -lazy, not doing anything, not caring if the house was clean or
dirty and if there was food on the table for the family”.

…Zdenka reports that, thanks to her medication, her sleeping
has drastically improved; however, it is far from what it used to be. She used to
be a sound sleeper, who woke up in the morning full of energy and drive. Now
she wakes up in the morning feeling tired, often even exhausted and has no
motivation to do anything or go anywhere. And, indeed, she hardly does. If it
wasn’t for her medical appointments, Zdenka would not leave (corrected during
her testimony to “rarely leave”) the house.

It is my opinion that Mrs. Cumpf fully meets the criteria for
Adjustment disorder, with depressive mood, according to DSM IV-TR.
Please see the appendix I, with the DSM IV-TR criteria for adjustment disorder.
As you can see, an adjustment disorder occurs when an individual is unable to
adjust to or cope with a particular stressor. Since people with this disorder
normally have symptoms that depressed people do, such as general loss of
interest, feelings of hopelessness and crying, this disorder is sometimes known
as situational depression. Unlike major depression the disorder is caused by an
outside stressor and generally resolves once the individual is able to adapt to
the situation, or the external stressor is removed.

It is my opinion that the both physical pain and the
limitations caused by it, constitute two major, ongoing stressors for Mrs.
Cumpf, resulting in the following symptoms of adjustment disorder:

*      
Markedly lower mood than usual

*      
Markedly diminished motivation and interest in the usual
activities

*      
Frequent crying

*      
Vocational difficulties

*      
Social isolation

*      
Frequent negative and catastrophic thoughts

*      
Lack of energy and fatigue (this might also be caused by
fibromyalgia)

*      
Irritability, impatience and lower tolerance threshold

*      
Cognitive impairment, such as concentration and memory
difficulties

*      
Lack of interest in sex

*      
Overwhelming feelings of guilt and shame

*      
Hopelessness

*      
Suicidal ideation

As a result of her treatment, she has become reportedly more
balanced, lighter in her mood, more motivated, feeling more in control, calmer,
more stable in general, having more cognitive clarity, feeling and being more
social and generally more hopeful. Her energy level also somewhat increased, so
she decided to go back to school and pursue her property management training.
She went back to complete her prerequisite course in English. Zdenka is happy
with the progress she had made; however, she is far from being fully
psychologically recovered. She is finding her academic work almost too
overwhelming, while prior to the MVA, she did not have problems with it.

It is therefore my opinion that the psychological
difficulties described in this report are most likely caused by the accident.

As indicated in my report; it is further my opinion that, due
to the MVA injury, Mrs. Cumpf has been significantly incapacitated in
functioning in all major areas of existence – family, work/career and social.
It is my opinion that those impairments will most likely continue until she has
reached a full physical recovery to a pre-MVA state.

[Emphasis added.]

[97]     
In cross-examination Ms. Rados testified that she was aware that the
plaintiff had been in the Previous Accident and that she had suffered an injury
to her back but said that Ms. Cumpf had told her that she had recovered from
that injury.

[98]     
Ms. Rados agreed that before the plaintiff could become a Property Manager
of multiple buildings she would need to complete her high school education,
upgrade her English and take a course at BCIT.

[99]     
She said that, at the time she saw the plaintiff, the plaintiff told her
that she was only doing light duties as a building manager, that she was not
able to do vacuuming, laundry or heavy lifting and that her children were helping
her with the heavier duties.

[100]  
Ms. Rados agreed in cross-examination that if the facts established that
the plaintiff did other activities both in and outside her home, such
information would have affected her opinion. She also agreed that the litigation
process can be a stressor on an individual. She said that during the course of
her treatment of the plaintiff there had been a “significant improvement” in
the plaintiff’s mental framework and that the plaintiff had “plateaued”. She
said she did not think there was any further psychological treatment she could
provide that would assist Ms. Cumpf.

2.  
Dr. Daniel Gouws

[101]  
Dr. Gouws’ area of expertise is in the medical assessment,
rehabilitation and diagnostic clarification of individuals in terms of their
fitness for work. He also has a special interest in mood disorders and chronic
pain.

[102]  
Dr. Gouws conducted a medical assessment including functional capacity
testing of Ms. Cumpf at the request of her counsel on November 18, 2013,
prepared a medical legal report dated January 15, 2014 and was cross-examined
on his opinion at trial.

[103]  
At the time she saw Dr. Gouws, Ms. Cumpf was complaining of “non-stop”
headaches, pain in her lower back and hips radiating into her leg, particularly
on heavy lifting and an aching burning pain in her neck.

[104]  
On his functional physical examination, Dr. Gouws found that Ms. Cumpf had
tenderness on palpation of her left occiput, left nuchal strap into her left
trapezius muscle, pain in her lower back on flexion and tenderness on palpation
of the spine in the lower lumbar vertebrae and over the right sacroiliac joint
area.

[105]  
Dr. Gouws opined that the cause of Ms. Cumpf’s symptoms and limitations was
the Accident. He stated:

…It is my opinion that her
previous injuries and pain symptoms (prior to the motor vehicle accident of
November 28, 2009) placed her at increased risk for reinjury, but it is unlikely
that she would have developed ongoing chronic pain absent the accident of
November 28, 2009.

[106]  
In reaching this opinion he noted that the plaintiff did have pre-existing
neck and lower back pain, headaches and left upper limb symptoms including
weakness and paresthesia and transient tinnitus before the Accident.

[107]  
In the “Opinion on Impairment and Competitive Employment” portion of his
report, Dr. Gouws opined that Ms. Cumpf suffered from chronic pain with ongoing:

§ 
Widespread myofascial neck, upper back and upper shoulder pain;

§ 
Cervicogenic headaches. The headaches Ms. Cumpf described after
the motor vehicle accident are most likely directly related to the soft tissue
injuries around the neck area and are consistent with cervicogenic (muscle
tension type) headaches.

§ 
Multilevel back pain, most likely mechanical and discogenic;

§ 
Ongoing hip symptoms, most likely secondary to back pain and
dysfunctional body mechanics;

§ 
Reduced physical capacity at the light level with reduced
tolerance for sustained body positioning, lifting, carrying, stooping and
crouching;

§  Emotional
comorbidities secondary to her chronic pain, including ongoing depressive
symptoms and cognitive distortions.

[108]  
Dr. Gouws was of the opinion that the plaintiff’s “chronic pain,
functional limitations and emotional comorbidities continue to impact her
ability to work in a sustained and productive manner”. He was of the view that she
was not capable of performing work requiring more than light physical demand
and that, in addition, given her age, low level of English proficiency and lack
of post-secondary education she was, in any event, at a significant
disadvantage in seeking other than entry–level, low skilled types of work.

[109]  
Dr. Gouws noted that Ms. Cumpf had scored in the high range in all categories
of the Pain Disability Index and the Pain Catastrophization Scale, both of which
are indications of her inability to return to her previous level of physical
activity.

[110]  
Dr. Gouws was of the opinion that “doing part time work will allow her
the best chance of succeeding in increasing her current work load and of
staying job attached”.

[111]  
Dr. Gouws was of the view that, rather than a time-limited intensive
program of continued physiotherapy or massage therapy, the plaintiff would instead
benefit from “an ongoing active exercise program under the supervision of a
kinesiologist/personal trainer who is well versed in working with individuals
with chronic pain”, while at the same time continuing with her swimming and
yoga. In Dr. Gouws’ opinion, Ms. Cumpf would “most likely further regress in
the absence of ongoing participation in regular physical fitness and postural
work”.

[112]  
In cross-examination, Dr. Gouws testified that he was aware at the time that
he examined Ms. Cumpf that she had been involved in the Previous Accident and
that she had attended chiropractic treatments for problems arising from that
accident in May 2008.

[113]  
Dr. Gouws did not recall seeing the CL 19 report discussed earlier which
noted that Ms. Cumpf was performing “light” duties at the time as a result of
her injuries from the Previous Accident and which recorded that she had “quit”
landscaping.

[114]  
Dr. Gouws agreed that had he read the CL 19 he may have made further
inquiries into the nature of the plaintiff’s work and abilities immediately
prior to the Accident.

3.  
Dr. Edward Lyle Gross

[115]  
Dr. Gross is a specialist in physical medicine and rehabilitation. He
saw the plaintiff for an assessment on November 12, 2013 at the request of her
counsel and prepared a medical legal opinion dated January 21, 2014. Dr. Gross
was qualified as a medical expert in complex medical issues and the diagnosis
of chronic pain.

[116]  
At the time Ms. Cumpf saw him, she was complaining of ongoing headaches
and bilateral pain in both legs.

[117]  
Dr. Gross diagnosed Ms. Cumpf with:

1.     Posttraumatic
cervical myalgia with associated muscle-contraction headaches.

2.     Posttraumatic
biomechanical lumbar pain of degenerative facet origin vs. possible L5 root impingement.

3.    
Chronic Pain Syndrome.

[118]  
Dr. Gross attributed Ms. Cumpf’s physical symptoms to the Accident. In
doing so he relied on the plaintiff’s statement to him that “she felt that she
completely recovered from the injuries sustained in the 2007 accident”. He
noted that there “is no record of a need for ongoing clinical intervention
following the 2007 accident”. In his report he opined:

The November 28, 2009 accident
resulted in a need for clinical treatment intervention; including two epidural
injections. This is an invasive technique, and there was no indication that she
was going to require an invasive treatment such as this prior to the November
2009 accident. As a result, it would be reasonable to conclude that following
the November 2009 accident; she had symptoms that necessitated an invasive
procedure resulting in today’s presentation.

[119]  
Dr. Gross’ recommendations for treatment were that Ms. Cumpf would
benefit from a chronic pain program which was interdisciplinary in nature,
involving a physiotherapist, occupational therapist, social worker and
chiropractor. He recommended that the program simulate the work she was
required to do during a workday and that it be for a duration of eight weeks.

[120]  
Dr. Gross opined that, without such treatment, Ms. Cumpf risked
decreased ability to work due to debilitating pain.

[121]  
In cross-examination, Dr. Gross agreed that he did not refer to the CL
19 pertaining to injuries sustained by the plaintiff in the Previous Accident
in his report. He said that he “likely would have read it” but found
inconsistencies in this hand-written report, including deviation from the human
anatomy. Dr. Gross denied intentionally leaving reference to the CL 19 out of
his report.

Position of the Defendants

[122]  
The defendants challenge the plaintiff’s credibility in a number of
areas, arguing that her evidence was inconsistent, incomplete and unreliable.

[123]  
In particular, the defendants say that the plaintiff had not recovered
from the injuries she sustained in the Previous Accident at the time the Accident
occurred; that she had not advised Drs. Rados, Gross or Gouws of her ongoing
issues arising from the Previous Accident; that she failed to advise her
physicians of an incident in the spring of 2008 when she aggravated her lower
back lifting a toilet while working; and that she minimized what physical
activities she could do.

[124]  
The defendants further argue that the injuries sustained in the Previous
Accident as well as in the toilet lifting incident and a pre-existing
degenerative back condition all resulted in a reduction in duties at work. This
ultimately led to termination from employment because the plaintiff was unable
to perform to the expectations of her employer, Duncan, and because she became
dissatisfied with her position as a residential property manager.

[125]  
 In regards to this argument, the defendants rely on:

a)    the CL 19
prepared by Dr. Bowlsby (referred to earlier) in which she told the doctor she
had to “quit” her landscaping duties and at the time was working “light” duties;

b)    the plaintiff’s
testimony on her examination for discovery that her back was “superb” one year
after the Previous Accident (which was similar to the evidence she gave at
trial);

c)     the
records of the chiropractor she attended on a number of occasions during the
spring of 2008; and

d)    various medical
records in March, June and July of 2008 indicating that the plaintiff was still
having neck, left arm and low back pain.

[126]  
The defendants also refer to the plaintiff’s evidence in direct
examination denying that she had attended Dr. Bowlsby’s office for an
examination when the CL 19 was prepared or that she had given the doctor the
information related on the form. Further, they refer to her evidence in cross
examination during which she acknowledged that she may have given the
information to the doctor.

Findings on the Plaintiff’s Credibility

[127]  
While I agree that some of the evidence given by the plaintiff is confusing,
and in some instances contradictory, based on my review of the whole of the
evidence at trial, I accept that Ms. Cumpf did suffer significant injuries as a
result of the Accident. I also accept that her injuries were likely made worse
by the fact that she had sustained similar injuries in the Previous Accident
and had underlying pre-existing problems with her cervical and lumbar spine as
demonstrated by the 2008 MRI and CT scan.

[128]  
I am also satisfied that, although Ms. Cumpf suffered from the effects
of the Previous Accident for longer than she testified to, the pain and
suffering she sustained in that accident had cleared up by the time of the Accident.

[129]  
There is a marked interval between Ms. Cumpf’s treatment arising from
the Previous Accident and the Accident. The records before the court establish
she was no longer complaining of injuries from the Previous Accident for a more
than a year prior to the Accident. Ms. Cumpf ceased physiotherapy in September
2007. The treatment she received in the spring of 2008 related to the
aggravation of the injuries sustained in the Previous Accident and, on the
medical records, those aggravating injuries were resolved by the time of the
Accident. She stopped attending Khatsahlano Medical Clinic and her chiropractor,
from whom she was receiving her primary treatment for complaints arising from
the Previous Accident, in July 2008. While she did attend a neurologist in the fall
of 2008, Dr. Thiessen was not called to give evidence at trial. There was no
other relevant medical treatment or intervention until immediately following
the Accident, an interval of some 16 months.

[130]  
Ms. Cumpf was prescribed limited medication following the 2007 accident,
namely an anti-inflammatory on the day of the accident and an anti-anxiety drug
in June 2008. Accordingly, the last medication she took attributable to the
Previous Accident was some 17 months prior to the Accident.

[131]  
Following the Accident, Ms. Cumpf’s prescription drug usage dramatically
increased; her Pharmacare records show some 25 prescriptions for medication
related to injuries sustained in the Accident between December 4, 2009 and
December 5, 2012 and a number since then.

[132]  
She attended Khatsahlano Medical clinic on 29 occasions between the date
of the Accident and June 6, 2012. She had 96 physiotherapy and kinesiology
treatments after the Accident up to March 2011, after which time she continued
doing exercises on her own. She had 33 chiropractic treatments between March 9,
2012 and March 27, 2014 which she said brought her some relief. In addition,
she has attended 11 sessions of counselling with Ms. Rados and has taken a number
of acupuncture treatments.

[133]  
In my view, it stretches one’s common sense and logic to accept that Ms.
Cumpf would have undergone the significant number of treatments she did and
sought relief by taking the medications she did had she not genuinely had the
pain and suffering of which she complains.

[134]  
Ms. Cumpf’s pain and suffering and her limitations, both physical and
mental, are set forth in the reports of Drs. Rados and Gouws. There is simply
no medical evidence proffered by the defendants to challenge that evidence.

[135]  
Further, and importantly, the debilitating effect of the injuries
sustained by Ms. Cumpf as a result of the Accident were attested to in some
detail by numerous friends and family as set out above in these reasons. Each
of the witnesses described Ms. Cumpf’s nature and personality before and after
the Accident and how she had changed both emotionally and physically.

[136]  
I agree with the defendants that there are some troubling and
inconsistent aspects to Ms. Cumpf’s testimony and the statements recorded in
the clinical records. One such example is her testimony regarding the CL19 form
completed by Dr. Bowlsby in May 2008. There are clinical notes by Dr. Bowlsby
dated May 19, 2008 which support that she did an office examination of Ms. Cumpf
on that date and that Ms. Cumpf told her the facts stated in the CL 19. In her
direct examination, when shown the CL 19, Ms. Cumpf denied that she had
attended the doctor’s office that day or that she had told Dr. Bowlsby the
information noted on the CL 19. In cross-examination she resiled from her
direct examination evidence and agreed that she may have attended and told the
physician the information written on the form.

[137]  
Several things are clear regarding the CL 19 report. Ms. Cumpf had not
quit her position with Duncan at the time; she was still managing buildings for
Duncan. It is quite possible that Dr. Bowlsby, who was not the plaintiff’s regular
physician but one of a number of physicians at the clinic who attended the
plaintiff on her various visits, misinterpreted what she was told by the plaintiff.
Dr. Bowlsby had only seen Ms. Cumpf twice before (of some ten prior attendances
with various physicians at the clinic). Accordingly, it may be that Dr. Bowlsby
was not familiar with Ms. Cumpf’s work situation and may have misunderstood her.
I note that while Ms. Cumpf is able to express herself in English, she is not
fluent; she gave her evidence at trial with the assistance of an interpreter.

[138]  
The inconsistencies in Ms. Cumpf’s evidence can be explained by the fact
that she was testifying some seven years after the Previous Accident and some four
years after the Accident. Given the number of physicians she has seen and
treatments she has attended, some allowance must be given to her for her
imprecision in the times and dates of the state of her recovery.

[139]  
Based on the evidence as a whole, I conclude that Ms. Cumpf had
recovered fully from the injuries she sustained in the Previous Accident by the
time the Accident occurred.

[140]  
I turn now to the assessment of damages under each of the heads of
damage claimed by the plaintiff.

Non-Pecuniary Damages

[141]  
The principles upon which non-pecuniary damages are awarded are stated
in Stapley v. Hejslet, 2006 BCCA 34, leave to appeal ref’d [2006]
S.C.C.A. No. 100. At para. 46 the Court of Appeal includes consideration of
such factors as the age of the plaintiff, the nature of the injury, the
severity and duration of pain, the degree of disability, the emotional
suffering, the loss or impairment of life, the impairment of family, marital
and social relationships, the impairment of physical and mental abilities, the
loss of lifestyle, and the plaintiff’s stoicism.

[142]  
The onus the plaintiff bears is to establish that “but for” the Accident
she would not have sustained her injuries, that is, that the conduct of
the defendants caused or contributed to her ongoing injuries: Clements v.
Clements, 2012 SCC 32.

[143]  
I must also determine the extent to which the Previous Accident affected
those injuries. The onus on the plaintiff to establish her claim requires proof,
on the balance of probabilities, that it is more likely than not that her injuries
were caused or contributed to by the Accident. Causation need not be proved
with scientific precision and may, in certain circumstances, be inferred from
the evidence using ordinary common sense: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 16 – 17 (S.C.C.).

[144]  
The plaintiff’s counsel argues that the plaintiff suffers from a
widespread chronic pain condition with psychological and cognitive
comorbidities which significantly disables her in many aspects of her life and
which has a fundamental impact on the view she has of herself that she is
disabled from all but the lightest of tasks. Her counsel says these conditions
are the direct result of the Accident.

[145]  
The plaintiff argues that non- pecuniary damages should be assessed between
$150,000 and $175,000 relying on Cantin v. Petersen, 2012 BCSC 549; Smusz
v. Wolfe Chevrolet Ltd., 2010 BCSC 82 [Smusz]; Eccleston v.
Dresen, 2009 BCSC 332 [Eccleston]; Felix v. Hearne, 2011 BCSC
1236; Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203; Zawadzki v.
Calimoso, 2011 BCSC 45; and MacKenzie v. Rogalasky, 2011 BCSC 54.

[146]  
The defendants argue that the injuries sustained by the plaintiff did
not impact her life to the extent she has claimed and say that this case is
analogous to the facts set out in Lees v. Compton, 2013 BCSC 1015 (see
particularly paras. 68 – 76, 83). The defendants say that the plaintiff has
given inconsistent and unreliable information to the physicians who saw her and
to the court in her evidence concerning her medical treatments, her symptoms,
her work capacity and the activities she does. Further, the defendants say that
the plaintiff has downplayed the effect of the Previous Accident. The defendants
argue that Ms. Cumpf had not recovered from the injuries sustained in the
Previous Accident at the time the Accident occurred. For the reasons expressed
above, I do not accept the defendants’ submissions.

[147]  
Counsel for the defendants argues that the amount of non-pecuniary
damages should be assessed between $75,000 and $100,000. For comparison
purposes, the defendants rely on Smusz and Eccleston (in which,
the defendants submit, more serious injuries were found and $100,000 and
$120,000 respectively was awarded), Sedor v. Snider, [1999] B.C.J. No.
2853 (S.C.); Chaban v. Chaban, 2009 BCSC 87.

Discussion of Non-Pecuniary Damages

[148]  
I am satisfied that the plaintiff continues to suffer from a chronic
pain condition which significantly affects her in her day to day activities;
that she remains disabled from performing many of the activities, other than
light activities, which she performed at work and around the home. Based on the
evidence, I find that her medical condition significantly affects her emotionally
and affects her family, marital and social relationships. At the time of trial,
it was four and one-half years post-accident. While Ms. Cumpf had improved, she
had plateaued and will not likely improve further without significant further treatment.
Based on the cases referred to by counsel and Ms. Cumpf’s circumstances, I
award her $150,000 in non-pecuniary damages.

Claims for Income Loss

[149]  
The plaintiff claims for both loss of income from the date of the
Accident to the date of trial and for loss of future earning capacity. I turn
now to consider each of these claims.

Loss of Earning Capacity to Date of Trial

[150]  
Ms. Cumpf is entitled to compensation for any loss of earnings from the
date of the Accident to the date of trial which have been caused or contributed
to by the defendants.

[151]  
Ms. Cumpf testified that prior to the Accident when she was terminated
by Duncan she planned to complete her ESL training and her grade 12 education
and then to take courses to obtain a certificate in Residential Property
Management. She claims 4.5 years of income at $40,000 or $180.000. Ms. Cumpf
relies on the evidence of Ms. Josipovic who testified that she earned between $70,000
and $80,000 as a residential building manager while managing three apartment
buildings in New Westminster. The plaintiff says that by the time of trial she
could have been in a similar position.

[152]  
The defendants say that Ms. Cumpf has not established that she has lost
any income as a result of the Accident.

[153]  
As discussed the plaintiff’s earnings prior to the accident were as
follows:

[154]  
She was terminated by Duncan effective October 31, 2008 and between then
and November 28, 2009, the date of the Accident, she held two short term jobs
as a building manager in New Westminster and in East Vancouver. She left both
positions after a short period of employment, one because she found the work
too heavy and the pay too low and the other because of poor pay and lack of
benefits.

[155]  
At the date of the Accident the plaintiff was unemployed.

[156]  
It was her plan to improve her English and take an apartment management
course.

[157]  
Ms. Cumpf registered for and began an ESL course in September 2009 and
another in January 2010. In September 2009 she took a 65 hour Upper
Intermediate course which she completed satisfactorily. The plaintiff testified
that although she took the course in January 2010, she was only able to finish
with difficulty as a result of her inability to concentrate due to her injuries.
In January 2010 and thereafter, she was suffering discomfort from the effects
of her injuries which Dr. Rados found demotivated her from pursuing her studies.

[158]  
Plaintiff’s counsel argued and I accept that throughout her life Ms.
Cumpf has been a hard-working, determined and industrious person.

[159]  
While it is possible that Ms. Cumpf may have achieved the qualifications
necessary for her to become a residential property manager prior to the date of
trial, I do not believe that to be likely. I note that from the time of her
termination by Duncan to the date of the Accident she had done little to
advance her education or demonstrate she was serious about achieving the
objective of becoming a full time residential property manager.

[160]  
On the other hand, I accept it is probable that had Ms. Cumpf not
sustained the injuries she did in the Accident she would have added at least
one or two more buildings to her building management portfolio by the time of
the trial in addition to the building she commenced managing in January 2010.

[161]  
Ms. Cumpf’s average annual net earnings based on line 150 of her income
tax returns for the years 2010 through 2013 (using the same 2012 income for
2013 since her 2013 income tax form was not provided in the Joint Documents Brief)
were $6,813. Based on the assumption that she would have added one and one half
more apartment buildings of roughly the same size as her current one to her
building management portfolio had she not been injured in the Accident, I award
her $41,000 (4 years x 1.5 (apartment buildings) x $6,813) for income lost as a
result of injuries suffered in the Accident up to the date of trial. Although the
trial concluded in May 2014 I have chosen 4 years for calculation purposes as
it would likely have taken her some time to accrete these additional
responsibilities.

[162]  
Ms. Cumpf also claims for lost income from house cleaning which she says
she earned, did not declare as income to Revenue Canada and then sent to
relatives in Bosnia to assist in meeting their needs. She produced no
documentary evidence such as invoices, deposit slips or bank records to support
the receipt of such income.

[163]  
The onus is on the plaintiff to establish she has incurred an income
loss and the amount of the loss if she expects to recover such loss from the
defendants. The defendants are entitled to know the particulars of the loss the
plaintiff seeks to recover against them. Without such particulars the
defendants are significantly prejudiced as they are not in any position to
investigate and challenge the merits of the plaintiff’s claims. In view of the
plaintiff’s inability to substantiate that she has, in fact, received income
from housekeeping and lack of production of any documentation to support her claim,
I must conclude she has not established such loss.

Loss of Future Earning Capacity

[164]  
The plaintiff says that she has been rendered a less valuable and
marketable employee due to her injuries; she asserts that it is unlikely that she
will be able to act in the capacity of a residential building manager or do
more physical jobs including her current position because her son and daughter
will not be available to assist her in the future. Further, the plaintiff says that
she will not be able to pursue her longer term plan of assisting her husband as
a co-driver in his long haul truck driving business.

[165]  
The general principles which apply to the recovery of damages for loss
of future earning capacity are set out in Reilly v. Lynn, 2003 BCCA 49,
leave to appeal ref’d [2003] S.C.C.A. No. 221. At paras. 100-101 the court
states:

[100] An award for loss of earning capacity
presents particular difficulties. As Dickson J. (as he then was) said, in Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251:

We must now gaze more deeply into the crystal ball. What sort
of a career would the accident victim have had? What were his prospects and
potential prior to the accident? It is not loss of earnings but, rather, loss
of earning capacity for which compensation must be made: The Queen v.
Jennings, supra. A capital asset has been lost: what was its
value?

[101] The relevant principles may be briefly
summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical
events are to be given weight according to their relative likelihood: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled
to compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v.
Leonati, supra, at para. 27, Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss of
earning capacity may involve a comparison of what the plaintiff would probably
have earned but for the accident with what he will probably earn in his injured
condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93
(S.C.). However, that is not the end of the inquiry; the overall fairness and
reasonableness of the award must be considered: Rosvold v. Dunlop
(2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette,
[1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to
assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Finally, since the course of future events is unknown, allowance must
be made for the contingency that the assumptions upon which the award is based
may prove to be wrong: Milina v. Bartsch, supra, at 79. In
adjusting for contingencies, the remarks of Dickson J. in Andrews v.
Grand & Toy Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff’s occupation,
but generally it will be small …

[Emphasis added.]

See also: Perren v. Lalari,
2010 BCCA 140 at paras. 30 – 32:

[30] Having reviewed all of these cases, I
conclude that none of them are inconsistent with the basic principles
articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. These principles are:

1. A future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation [Athey at para. 27], and

2. It is not loss of earnings but, rather, loss of earning
capacity for which compensation must be made [Andrews at 251].

[31] Furthermore, I conclude that there is
no conflict between Steward and the earlier judgment in Pallos.
As mentioned earlier, Pallos is not authority for the proposition that
mere speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

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

[166]  
The plaintiff proposes that the income approach be used to calculate her
loss of future earning capacity. The plaintiff says that the measure against
which loss of future earnings should be determined is the evidence of either
what the plaintiff could have earned in the future as a Property Manager or as
a co-driver with her husband in his long haul transport business.

[167]  
In my view neither of these measures to determine loss of future income
capacity is appropriate as neither measure represents a probable or realistic
alternative, that is, neither option represents real and substantial
possibilities. I have already discussed my views of the plaintiff becoming a
Property Manager. I am also of the view that, given the plaintiff’s underlying
conditions as disclosed on her x-rays and MRI, it is unlikely that she would
have been able to tolerate (at least for very long) being a long haul truck
driver. Further, the evidence establishes that she and her husband had simply
discussed the idea that it might occur in the future. There were no concrete
plans put in place. I must conclude that the plan for her to share long-haul
driving with her husband was speculative at best.

[168]  
In my view the appropriate manner of determining Ms. Cumpf’s loss of
earning capacity is not on the income approach but rather on the capital asset
approach.

[169]  
In Rosvold v. Dunlop, 2001 BCCA I at paras. 8-9, Huddart J.A.
states:

[8] … An award for loss of earning capacity is based on the
recognition that a plaintiff’s capacity to earn income is an asset which has
been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.).
Where a plaintiff’s permanent injury limits him in his capacity to perform
certain activities and consequently impairs his income earning capacity, he is
entitled to compensation. What is being compensated is not lost projected
future earnings but the loss or impairment of earning capacity as a capital
asset. In some cases, projections from past earnings may be a useful factor to
consider in valuing the loss but past earnings are not the only factor to
consider.

[9] Because damage awards are
made as lump sums, an award for loss of future earning capacity must deal to
some extent with the unknowable

[170]  
The evidence of both Dr. Rados and Dr. Gouws clearly supports that Ms.
Cumpf will not be able to work in the same capacity she did prior to the
Accident. Her work functions as a building manager involved a broad spectrum of
activities from cleaning to renovation work. The functional capacity assessment
of Dr. Gouws demonstrates that she now has a limited physical capacity to perform
anything more that light duties and that this limitation is likely to continue
to impact on her ability to work in the future.

[171]  
The fact that she is performing some work now is a testament to her
stoicism and her drive to want to feel useful. Although she is performing some
work, she is in constant pain in doing so. Her children will not always be
available to her to assist in fulfilling her functions of gardening and
cleaning in the one apartment she now manages. She may be able to continue in
her position for several years, but ultimately she will be unable to perform
the job when her children are no longer able to assist her.

[172]  
 I find that Ms. Cumpf has been rendered less capable overall from
earning income from all types of employment; that she is less marketable or
attractive to potential employers as a result of her injuries; that, for the
same reason, she has lost the ability to take advantage of all job
opportunities which might otherwise have been open to her had she not been
injured; and that she is less valuable to herself 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.).

[173]  
Under the previous head of damage, I found that Ms. Cumpf could have earned
$10,250 more than her actual four year average income of $6,813 for an annual
net income of $17,063.

[174]  
Ms. Cumpf is 48 years of age and likely would have worked for at least
another 17 years (to age 65) as a building manager of 2.5 buildings instead of
only 1 building.

[175]  
However, in assessing this head of damage, I must adjust for both positive
and negative contingencies. The plaintiff may have worked as a building manager
well beyond the age of 65, however, Ms. Cumpf’s pre-existing conditions and
injuries sustained in the Previous Accident as shown in her x-rays and MRI may
have been aggravated (such as occurred when she lifted a toilet) or may have
adversely impacted her health and ability to work and earn income. I find that
it is reasonable to reduce the award by 10% (approximately four years of
income) in order to account for these realistic contingencies.

[176]  
After applying the present value calculations supplied by Mr. Peever,
the plaintiff’s economist, I award Ms. Cumpf $121,000 for damages for lost
earning capacity.

Cost of Future Care

[177]  
As discussed in Prempeh v. Boisvert, 2012 BCSC 304 at para. 107 [Prempeh],
an award for cost of future case must be based on medical evidence as to what
is reasonably necessary to preserve and promote the plaintiff’s mental and
physical health. In assessing cost of future care, the court should consider
whether the plaintiff would likely use the items or services in the future.

[178]  
In Prempeh, Madam Justice Dardi observed that this
assessment is not a precise exercise:

[108] The assessment of damages for
cost of future care necessarily entails the prediction of future events: Courdin
v. Meyers, 2005 BCCA 91 at para. 34; Krangle (Guardian ad litem of) v.
Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205 at para. 21. The courts have long
recognized that such an assessment is not a precise accounting exercise and
that adjustments may be made for “the contingency that the future may differ
from what the evidence at trial indicates”: Krangle at para. 21; X.
v. Y. at para 267. The extent, if any, to which a future care costs award
should be adjusted for contingencies depends on the consideration of the
specific care needs of the plaintiff and the expenditures that reasonably may
be expected to be required – taking into account the prospect of any
improvement in the plaintiff’s condition or conversely the prospect that
additional care will be required: O’Connell v. Young, 2012 BCCA 57 at
paras. 67-68; Gilbert v. Bottle, 2011 BCSC 1389 at para. 253.

[179]  
Dr. Gouws recommended that Ms. Cumpf would benefit from “an ongoing
active exercise program” under the supervision of a kinesiologist/personal
trainer who is versed in working with individuals with chronic pain and that
she would likely regress if she did not continue with swimming and yoga. Dr. Gross
recommended that she continue her exercise program and that she undertake a
chronic pain program to assist her in managing her pain and improving her
endurance.

[180]  
I conclude that the following cost of future care items are reasonable
and supported by the evidence:

1.     Supervised
exercise program with a one-time cost of $1,080;

2.     Annual gym
membership of $350 per year;

3.     Annual
pool pass of $360 per year; and

4.     Chronic pain
management program (Orion Health Services) with a one-time cost of $14,560.

[181]  
Plaintiff’s counsel submits that the cost of future care should continue
over Ms. Cumpf’s lifetime and applied a present value multiplier ($20,263/$1000)
to the ongoing annual  cost of future care ($1,070) provided by Mr. Peever for
an amount of $21,681, which taken with the one-time cost for the chronic pain
program and supervised gym program equates to $37,321. I do not accept that Ms.
Cumpf will need kinesiology sessions as part of a supervised exercise program
for life. In fact the evidence suggests that her condition of chronic pain and
depression may improve with a continued and active exercise program. Applying
the present value multiplier to a lifetime gym membership and pool pass and
adding the one-time cost of $15,640, I award damages in the amount of $30,000 for
cost of future care.

Loss of Housekeeping Capacity – Past

[182]  
It is well recognized that damages for loss of housekeeping capacity pre-trial
and post-trial may be awarded even if the plaintiff has not incurred any actual
expenses for hired services or if such services were gratuitously replaced by a
family member: McTavish v. MacGillivray et al., 2000 BCCA 164 at para 8
[McTavish]; Dykeman v. Porohowski, 2010 BCCA 36 at para. 28; Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652 at para. 9 (B.C.C.A.), leave to
appeal ref’d [1995] S.C.C.A. No. 263; Easton v. Chrunka et al., 2006
BCSC 1396 at para. 45; and Rogers v. Rekow, [1997] B.C.J. No. 914
at para. 37 (S.C.).

[183]  
The preferred approach for assessing such a loss is to estimate the cost
of replacement services: McTavish at para. 48-49.

[184]  
At para. 63 the court states:

As we have seen, it is now well
established that a plaintiff whose ability to perform housekeeping services is
diminished in part or in whole ought to be compensated for that loss. It is
equally well established that the loss of housekeeping capacity is the
plaintiff’s and not that of her family. When family members have gratuitously
done the work the plaintiff can no longer do and the tasks they perform have a
market value, that value provides a tangible indication of the loss the
plaintiff has suffered and enables the court to assign a specific economic
value in monetary terms to the loss. This does not mean the loss is that of the
family members or that they are to be compensated. Their provision of services
evidences the plaintiff’s loss of capacity and provides a basis for valuing
that loss. The loss remains the plaintiff’s loss of economic capacity.

[185]  
Based on the evidence of her husband, son and daughter, each of them,
but more particularly her daughter, has done most of the household tasks
including vacuuming, doing dishes, mopping, cleaning, laundry and cooking.

[186]  
The plaintiff seeks $113,500 as an in trust claim (based approximately on
$25 per hour x 22 hours per week x 52 x 4 years) to compensate family members
for their contribution to housekeeping work as a result of her incapacity.

[187]  
The defendant says the plaintiff is able to perform the household chores
and what work has been performed by Ms. Cumpf and the children are “a natural
development in the majority of households”.

[188]  
I do not accept the defendant’s submission. The medical evidence and
that of her family clearly establishes that Ms. Cumpf is limited in what she
can do physically, not only at work but also around the home.

[189]  
Following his assessment of November 18, 2013, Dr. Gouws concluded that she
had a “reduced tolerance for sustained body positioning, lifting, carrying,
stooping and crouching” and was suffering from chronic pain. The family has stepped
in to fill the large gap created by Ms. Cumpf’s inability to perform her usual
household chores. As noted, her daughter in particular has given up time with
her friends and comes home after school to assist in the household chores.

[190]  
In my view an award compensating the plaintiff’s loss of housekeeping
capacity in the amount of $37,500 is reasonable. This amount would compensate
the plaintiff for approximately 8 hours per week at the rate of $20.00 per hour
for four and one-half years of pre-trial housekeeping work performed by family
members over and above what I think they would ordinarily have done had the
accident not occurred.

Loss of Housekeeping Capacity – Future

[191]  
The plaintiff submits that a damages award of $150,000 for loss of
housekeeping capacity into the future is reasonable. The plaintiff notes that,
based on a cost of $20,000 per annum and applying a future cost multiplier to
age 70, the amount would be $320,000.

[192]  
As plaintiff’s counsel notes, one of Ms. Cumpf’s children has already
left home and at the date of trial her daughter intended to attend university. Neither
will remain available to assist with housekeeping. Given Mr. Cumpf’s occupation
as a long haul truck driver, she will need to hire housekeeping assistance.

[193]  
I am of the view that Ms. Cumpf will need housekeeping assistance in the
future. I am also of the view, however, that, with her children absent from the
home and Mr. Cumpf away a great deal, the requirement for housekeeping work
will be significantly less than it has been prior to trial. I also must make
allowance for the likelihood that Ms. Cumpf will progress in her treatment to
the extent that she will ultimately be able to perform many of the household
tasks. She will require assistance shopping and carrying groceries, but this is
a service many companies supply. I allow $75,000 as a reasonable award based on
the cost of a housekeeper twice a month for five years and ongoing housekeeping
services on a more limited basis for her lifetime.

Special Damages

[194]  
The plaintiff claims $12,022.44 in special damages for expenses that she
says she incurred as a consequence of the treatment of her injuries. She has
included receipts supporting her claim. The expenses are for prescription drugs,
physiotherapy, massage therapy, gym passes, herbal medicines, acupuncture treatments,
chiropractic treatments, naturopathic treatments, health center passes and counselling
with Dr. Rados.

[195]  
The defendant says that “the preponderance of medical evidence indicates
that as far back as 2012 the Plaintiff and many medical practitioners found the
treatments (for chiropractor, massage therapy, naturopathy and acupuncture)
were not helpful”.

[196]  
The medical evidence establishes that Ms. Cumpf suffered pain from
injuries sustained in the Accident, a chronic pain condition arising from those
injuries as well as depression. She took all the steps she could to try to
alleviate that pain. Presumably her attending physician knew of and approved
the various sources of treatment through which she sought relief. There is no
evidence that her attending physician dissuaded her from seeking out the
treatment she did. I have noted that the plaintiff’s attending physician was
not called to give evidence or to be cross-examined at the trial. In my view
not every treatment a plaintiff undertakes to try to seek relief from pain must
be found to be successful or ultimately of medical value. The question is
whether, at the time and in the circumstances, the expense incurred was
reasonable. I find in this case that the expenses incurred by Ms. Cumpf to try
to obtain relief from her ongoing pain were reasonable. Accordingly, I award
her $12,022 for special damages. If there is any issue whether the
prescriptions or other expense have been paid by a third party, counsel may
arrange to speak to this issue if they are not able to resolve the matter.

Summary

[197]  
In summary, I award Ms. Cumpf the following:

“Greyell J.”