IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141118

Docket: M114203

Registry:
Vancouver

Between:

Bernadette Kondor

Plaintiff

And

Dylan Shea
Lori Shea

Defendants

Before:
The Honourable Mr. Justice Butler

Reasons for Judgment

Introduction

[1]            
The plaintiff, Bernadette Kondor, seeks damages for injuries arising
from a motor vehicle accident at the intersection of St. Johns Street and Grant
in Port Moody, B.C. The accident occurred on September 4, 2009 when the vehicle
driven by the defendant, Dylan Shea attempted to execute a left turn onto St.
Johns Street. Mr. Shea did not see Ms. Kondor’s vehicle, which he struck on the
front passenger side with considerable force (the “Accident”). The defendants
have admitted liability for the Accident. Ms. Kondor’s head struck her
windshield and her body hit the steering wheel and dashboard. Ms. Kondor was
transported to Royal Columbian Hospital by ambulance for treatment. She
suffered bruises and abrasions to her face and body. She also suffered soft
tissue injuries to her cervical spine and low back. Prior to the Accident, Ms.
Kondor had a history of depression, anxiety, and Obsessive Compulsive Disorder
(“OCD”). The Accident caused an increase in her anxiety and OCD symptoms.

[2]            
At the time of the Accident, Ms. Kondor held the position of Coordinator
of Parenteral Services in the Pharmacy Department at Children’s Hospital
(“Children’s”). She reported directly to the Director of Pharmacy, and was a valued
employee. She graduated with her BSc in pharmacy from the University of British
Columbia in 1991 at the top of her class. Following her graduation, she
completed a one-year residency program which enabled her to work in a hospital
pharmacy. Thereafter, in 1992, she started working at Children’s and has worked
there ever since.

[3]            
Ms. Kondor was on vacation when the Accident occurred. She returned to
work on September 15, 2009, only a few days after her scheduled return.
However, at that time she could only work part time. She gradually increased
the length of her workday until she was able to work five and a half hours a
day. She has continued to work at that reduced level since late 2009. Ms.
Kondor says she is unable to work full days because she suffers from pain which
is now chronic.

[4]            
These circumstances and the parties’ positions require a close
examination of Ms. Kondor’s injuries, the ongoing symptoms, and her prognosis.
The parties have widely differing views regarding the extent to which her
symptoms were caused by injuries suffered in the Accident, and whether the
symptoms were caused or contributed to by her pre-existing condition and non-Accident
stresses. The main areas of contention between the parties are the amounts to
be awarded for non-pecuniary damages, and loss of future earning capacity.

The Parties’ Positions

The Plaintiff’s Position

[5]            
Ms. Kondor was in good physical health prior to the Accident and had no
difficulty performing her work duties. She was an avid gardener, knitter, and
enjoyed playing with her nieces and nephew. While she had difficulties with OCD
prior to the Accident, she was able to deal with the symptoms which did not
interfere with her ability to work. Ms. Kondor says this is a classic “thin
skull” case: her pre-existing condition made her susceptible to the injuries
and symptoms she suffered as a result of the Accident. She argues that
causation is easily established by the medical evidence. She functioned well
before the Accident but now, five years later, she has developed chronic pain
and is unable to return to full-time work. She says that as a result of the
Accident, her career advancement has been stymied. She is unable to take part
in gardening or knitting, two extra-curricular activities she enjoyed. She is
no longer able to maintain the postures required for prolonged engagement in
these activities, as they exacerbate her symptoms. She says it is unlikely her
condition will improve. In view of chronic pain and the exacerbation of
psychological symptoms, Ms. Kondor submits that an award of $125,000 for
non-pecuniary damages is appropriate.

[6]            
Ms. Kondor argues the reduction in her ability to work a full day is
entirely attributable to injuries suffered in the Accident. She maintains that
without the Accident she would have continued to work full time until age 70.
She testified that she loved her job and never intended to retire early to
pursue other interests. In essence, she says she would have worked as long as
possible. She also submits that without the injuries suffered in the Accident,
she would have been appointed to a more senior position. She says she would
likely have been promoted to the position of Distribution Coordinator by approximately
2018.

[7]            
Ms. Kondor submits her net past income loss is $96,509, with $1,849 in
pre-judgment interest. This amount is premised on the assumption she would have
continued to work full time at the salary level she was earning at the time of
the Accident. Based on the assumptions outlined above, she says she should be awarded
approximately $1.45 million for loss of future earning capacity. Ms. Kondor
also seeks an award for cost of future care, in the amount of $36,363, to pay
for future OCD therapy, attendance at a pain clinic, and an award for
interference with homemaking capacity. The parties are agreed as to the amount
of special damages, at $15,000.

The Defendants’ Position

[8]            
The defendants acknowledge that Ms. Kondor suffered physical and
psychological injuries in the Accident, but say she overstates the severity of the
symptoms. The defendants also argue that her pre-existing OCD, anxiety, and
depression have significantly impacted her ongoing physical and psychological well-being.
They say many of her symptoms were caused by her pre-existing psychological
condition or would have occurred in any event. They point to a number of the
plaintiff’s pre-existing avoidance behaviours which caused significant
impairment in her daily life. The defendants also say there have been
significant stressors in Ms. Kondor’s life which would have affected her
ability to function even without the Accident. These include the death of her
father and the re-organization of the Children’s Pharmacy Department,
commencing in 2010. In addition, the defendants say there is a reasonable
prospect for a significant improvement in her psychological condition and, if
that occurs, a reduction to her level of chronic pain. This may enable her
return to full-time work.

[9]            
The defendants submit that Ms. Kondor’s non-pecuniary damages should be
assessed at $75,000 based on Ms. Kondor’s ongoing complaints and modest
aggravation of her OCD. However, the defendants say this figure should be
discounted by 40% to take into account the extent to which her difficulties are
caused by the pre-existing psychological conditions. Thus, the defendants
submit that an award of $45,000 is appropriate.

[10]        
The defendants do not dispute the amount of time Ms. Kondor missed at
work. However, they dispute the calculation of the past wage loss, and say she
has suffered a loss of only $81,860.34. The rationale for the difference is that
Ms. Kondor voluntarily decided to take a job at a lower hourly rate. The
defendants argue she should not receive compensation for the reduction in
earnings because the change of position was not caused by the injuries suffered
in the Accident.

[11]        
The defendants say the future income loss should not be calculated on an
earnings approach but rather on the basis of a loss of capacity. They submit
that an appropriate award which takes all factors into account is $150,000.
Alternatively, the defendants say that if an earnings approach is used, the
court should conclude that Ms. Kondor would have retired at age 61, the average
retirement age for employees in her category. They also argue that Ms. Kondor
would never have obtained a more senior position given her anxiety and OCD. Applying
those factors to the computation, the defendants submit the future loss would
be valued at approximately $420,000.

[12]        
The defendants acknowledge the plaintiff requires continued therapy for
her OCD. However, they take the position that this need for future therapy is
unrelated to the Accident. In the alternative, should the court determine that
the Accident caused or contributed to the need for continued therapy, the
defendants submit that loss of future care should be assessed at $18,220. This
amount is comprised of OCD therapy and $15,000 for attendance at a pain clinic.
In their submission, no amount should be awarded for loss of homemaking
capacity.

Relevant History

[13]        
Ms. Kondor and her physicians described in detail her condition before
the Accident, as well as the physical and psychological symptoms she has
experienced since September 2009. I will set out her personal and medical
history by reviewing that evidence.

Pre-Accident

[14]        
Ms. Kondor is now 46 years old. She is the middle of three children, and
was raised in a family which valued education and academic achievement. Her
older brother is a lawyer and her sister is a doctor. She was a high achiever
in everything she did, including education and extra-curricular activities, and
developed perfectionist tendencies at an early age.

[15]        
When Ms. Kondor was 27 years old and experiencing stress from a broken
relationship, she recognized that obsessive behaviours were beginning to have a
significant impact on her everyday life. In 1997, she was referred by her
family doctor, Dr. Keith Hatlelid, to a psychiatrist, Dr. Froese, because she
was exhibiting moderate symptoms of depression and anxiety. Dr. Froese
prescribed medication to treat those conditions. He recognized there was an OCD
component to her presentation and the medication was also intended to assist
with those symptoms. She continued to take medication to treat her depression
and anxiety up to the time of the Accident.

[16]        
In December 1999, Dr. Froese referred Ms. Kondor to Dr. Maureen Whittal,
the director of the UBC Anxiety Disorders Clinic (the “AD Clinic”). Dr. Whittal
is a psychologist specializing in anxiety disorders. Dr. Whittal treated Ms.
Kondor’s OCD until 2001. In February 2013, Ms. Kondor was again referred to Dr.
Whittal. Dr. Whittal provided a report and gave evidence at trial detailing her
assessment and treatment of Ms. Kondor during the two time periods.

[17]        
In her initial intake assessment in 1999 (the “Initial Assessment”), Ms.
Kondor reported to Dr. Whittal a lifelong history of a need for symmetry and
exactness. This did not impact her daily functioning until Ms. Kondor was in
her mid-20s. A number of personal stresses caused an increase in obsessive
thoughts and prompted the onset of OCD symptoms. Doctor Whittal explained that
obsessions are intrusive thoughts which appear against an individual’s will,
which may be followed by compulsions. Compulsions are behaviours or acts to
which an individual is driven because of the intrusive thoughts. Compulsive
behaviours are directly related to obsessions and are an attempt to reduce
anxiety. OCD is an anxiety disorder and it can be one of the most disabling of
illnesses. OCD symptoms can wax and wane depending on other stressors in an
individual’s life.

[18]        
Ms. Kondor’s primary obsessive thought was the fear of becoming
contaminated by bodily fluids. She was concerned she might contract an
infectious disease and could spread the illness to others. This manifested in
an obsessive need to wash her hands or other objects around her. She had other
obsessional themes which focused on responsibility for the safety of others. This
concern manifested in a tendency to remove potentially dangerous items from her
environment, for example removing glass from the street. Similarly, she was
concerned about exposing others to peanuts, which might result in serious
allergic reactions. She was also concerned about the potentially toxic effect
of chemicals used in chemotherapy or household cleaners. When driving, she had
intrusive thoughts which caused her to believe she may have struck a pedestrian
or cyclist. This caused her to check her mirrors repetitively and frequently
circle around the block to look for a possible accident victim.

[19]        
At the Initial Assessment in 1999, Ms. Kondor reported near constant
obsessions. She said she spent six to seven hours a day dealing with her
compulsions. Ms. Kondor washed her hands as often as 60 times a day and
obsessively cleaned inanimate objects. She developed avoidance behaviours,
which included staying away from objects or places which she believed to be
contaminated. She restricted people from entering her home to avoid further
contamination. For example, at the time of the Initial Assessment, Ms. Kondor’s
fridge had been broken for more than a month and had not been fixed because she
was unable to allow a repairman into her home. Dr. Whittal concluded that Ms.
Kondor had a severe level of OCD and made a secondary diagnosis of major
depressive disorder.

[20]        
After the Initial Assessment, Ms. Kondor underwent two treatment
programs. She first tried cognitive behavioural therapy which did little to
reduce her symptoms. She then underwent a series of exposure plus response
prevention (“ERP”) treatments. At the conclusion of those treatments, Ms.
Kondor reported an approximately 45% decrease in symptoms. At that level, Dr.
Whittal would have described Ms. Kondor’s OCD symptoms as within the mild range.
However, in early 2001 during her final attendance at the clinic, an unfortunate
incident caused Ms. Kondor to develop a negative view of both the AD Clinic and
Dr. Whittal. She believed the AD Clinic was contaminated and attending the
premises became a trigger for her. Dr. Whittal tried to get her to return to
the AD Clinic but Ms. Kondor stopped all treatment at the time.

[21]        
Ms. Kondor said her OCD symptoms were generally under control after
leaving Dr. Whittal and the AD Clinic. She still had issues with bodily fluids
but was able to keep obsessions about peanuts and chemotherapy chemicals under
control. She was also able to manage her obsessive thoughts about driving
accidents. Dr. Hatlelid’s evidence provides support for her assertion that her
OCD symptoms were under control. He has been Ms. Kondor’s family physician
since 1997. He prepared two medical legal reports and gave viva voce
evidence at trial. He described Ms. Kondor’s long history of OCD. He was of the
view that Ms. Kondor was able to keep her psychological issues under
“reasonable control” through the use of medication.

[22]        
The other pharmacists from Children’s who testified were not aware of
the nature or extent of Ms. Kondor’s struggle with OCD. Kathleen Collin, a good
friend who had worked at Children’s throughout Ms. Kondor’s tenure, described
Ms. Kondor as a vibrant and energetic pharmacist and person before the Accident.
She did not observe any disability and said Ms. Kondor “seemed to be normal”.
She described Ms. Kondor as a good supervisor who listened to employees and was
an exemplary role model.

[23]        
Ms. Kondor worked as a Clinical Pharmacist from 1992 until December
2007. During this time period she did not have a managerial or supervisory
role. In 2007, John Hope became the Director of Pharmacy at Children’s and
stayed in that position until 2010. At that time the pharmacy was organized as
a single facility which included Women’s Hospital. In December 2007, he
promoted Ms. Kondor to the position of Coordinator of Parenteral Services. He
thought she was the strongest candidate for the management position. Mr. Hope had
five coordinators who reported to him. He was a strong advocate for and
supporter of Ms. Kondor. He believes she had the ability to progress higher in
the hospital administration based on her performance under his management.

[24]        
Mr. Hope was able to observe Ms. Kondor as his office was next to hers.
As a Coordinator she was required to take on more responsibility than she did
as a clinical pharmacist. She supervised three or four pharmacists and
technicians on a daily basis and was responsible for hiring those employees.
She sat on numerous committees and worked on special projects for her
department. Mr. Hope was of the view she could manage her increased
responsibilities and said she made a positive contribution right away. She was
able to deal well with the kind of change which is a regular feature in
hospital pharmacies.

[25]        
Before the Accident, Mr. Hope regarded her as an excellent employee. He
did a performance appraisal of Ms. Kondor in September 2010, about a year after
the Accident. He concluded she was an excellent employee in all respects. From
his perspective, she performed at a very high level both before and after the Accident.
He described his observations of Ms. Kondor after the Accident, and noted that
although he could see she struggled with the physical demands of the job, she
remained an excellent employee.

[26]        
The primary focus of Ms. Kondor’s life before the Accident was her work.
She formed the goal of becoming a hospital pharmacist early in her adult life
and as her career moved forward this remained the central focus of her life.
She has not had a romantic relationship since 1999. That relationship ended poorly
and was a significant stressor in her life. Her main outside interest is
gardening. With that in mind she purchased a home in East Vancouver in 2003
(the “House”). She lived there for a while but the House became seriously run
down and is now uninhabitable. She moved out of the House in December 2011. The
House needed repairs that were simply too expensive. She says that when she
purchased the House it was only marginally inhabitable so she expected it to deteriorate.
She also says she was unable to look after the home as a result of her
injuries. While there is some truth to these assertions, they do not provide a
complete explanation for what happened to her House.

[27]        
Ms. Kondor purchased the property to have a garden. She used the garden
for some time and was able to do so because gardening did not give her contamination
concerns. However, she was unable to maintain the House in part because of her
OCD contamination concerns. She would not have people into the House to provide
the assistance she needed. She was content to focus on her work and her aging
parents. As a result, she simply did not have the time or ability to maintain
the House and it fell into disrepair. Unfortunately, a home can be a source of
serious contamination issues for someone with her form of OCD. As the House aged
and required maintenance, she was in no position to either do the work or allow
someone inside to assist. Accordingly, she eventually moved into her parents’
home and rented an apartment.

[28]        
A dramatic example of the problems that can arise for someone suffering
from OCD is Ms. Kondor’s failure to file tax returns. At some point she became
concerned about a Revenue Canada letter she received in the mail which she
believed was contaminated with dog feces. She placed the letter in a cabinet in
her home where her tax information was kept. That cabinet became associated
with contamination such that she could no longer deal with its contents and
therefore her tax issues. As a result, Ms. Kondor did not file a tax return
from 1998 until sometime shortly before trial. While the failure to file tax
returns is not a home maintenance issue, it demonstrates the debilitating
impact that obsessive thoughts can have on Ms. Kondor’s ability to function.
Ms. Kondor previously had difficulty getting her fridge, furnace, and roof
fixed because of a reluctance or inability to let a stranger into her home. It
is not surprising the home became uninhabitable when she had no ability to deal
with ongoing maintenance.

[29]        
While Ms. Kondor maintained her OCD was under control in the years
before the Accident, she received about $3,500 to $4,000 in sick pay on an
annual basis. I infer that more of her sick time was related to psychological
rather than physical issues. In February 2009, she reported to Dr. Hatlelid’s partner
Dr. Dodeck that her OCD was still prevalent and that it contributed to thoughts
of depression. Dr. Dodeck considered a possible re-referral to the AD Clinic,
but he did not do so, nor did Dr. Hatlelid.

[30]        
Prior to the Accident, Ms. Kondor’s physical health was very good. She
had no physical complaints and had never experienced neck or back pain. She did
not participate in sports but walked daily for approximately 30 to 40 minutes.

[31]        
The other important part of Ms. Kondor’s life before the Accident was
her family. She was very close to her aging parents. She was the sibling who
assumed the primary responsibility for assisting her parents. Her siblings were
both married and had young families. Her sister could not assist their parents
as she lived in Ontario. When her father was diagnosed with Alzheimer’s in 2008
and her mother had a recurrence of breast cancer, Ms. Kondor was called upon to
spend a lot of time with her parents. Her parents’ health issues were
significant stressors for Ms. Kondor.

[32]        
Ms. Kondor has a good relationship with her brother, who lives in Vancouver,
and has two young children. Ms. Kondor saw her brother’s family once every few
weeks. Ms. Kondor enjoyed visiting and playing with her niece and nephew. Her
brother knew of her fear of germs which developed as a child, but stated he did
not think it was serious. Ms. Kondor managed to keep her OCD diagnosis from
him. Indeed, her brother was surprised to learn of it in the witness stand.

[33]        
Ms. Kondor also has a good relationship with her sister and her two
young daughters. Her sister testified that Ms. Kondor was active and in good
health when she visited Ontario shortly before the Accident. She was able to
actively play with her nieces. The Accident occurred very shortly after Ms.
Kondor returned to Vancouver. Her sister was aware of the OCD diagnosis but did
not have any knowledge as to how serious the symptoms were. She noticed that
Ms. Kondor was more vigilant about cleanliness than others, but described her
manifest OCD behaviours as “not very evident on a continuous basis”.

[34]        
It is evident from the testimony of her siblings and co-workers that Ms.
Kondor was successful in hiding her OCD symptoms from her family and from
fellow employees at Children’s.

Post-Accident

[35]        
The Accident occurred when Ms. Kondor was driving home from her parents’
home. Ms. Kondor was immediately stunned and felt quite dazed. She was taken to
Royal Columbian Hospital following the Accident but did not stay for long as
she was concerned about contamination. She took a taxi home at the earliest
opportunity. In the first few days after the Accident, Ms. Kondor experienced
pain and stiffness in her neck, right shoulder, upper back, and chest. She was
badly bruised over her arms and legs and suffered bruises and abrasions to her
head and face. She started to experience headaches which became frequent and
painful. She immediately experienced heightened anxiety when driving. There is
no doubt she was fully disabled in the period immediately following September
4, 2009.

[36]        
In spite of the injuries, Ms. Kondor attempted to return to work 11 days
after the Accident. She participated in a very informal graduated return to
work program. As a result of the support she received from Mr. Hope, she was
able to set her own working hours. Ms. Kondor found it difficult to work in the
early morning and so she came in later in the day and worked through as much of
the afternoon as she could. By the end of October 2009, she was working about
50% of her regular hours. This fluctuated somewhat, but by the end of 2009 she
was working 5.5 hours per day. She was not able to work longer because of the
level of pain she experienced. As a full-time employee, she was required to
work 7.5 hours per day. In the years before the Accident, she often worked more
than the required time without claiming overtime. She was no longer able to put
in those hours.

[37]        
Dr. Hatlelid’s first report, dated October 2, 2011, sets out his initial
diagnosis and documents the progression of Ms. Kondor’s symptoms for the first
two years after the Accident. He concluded that, as a result of the Accident,
Ms. Kondor sustained the following injuries:

·      
a grade II musculoligamentous injury to her cervical spine;

·      
a grade I musculoligamentous injury to her low back;

·      
multiple bruises and lacerations to face, arms, and legs;

·      
muscle contraction headaches;

·      
muscular injury to the chest wall;

·      
strained ankles;

·      
mild concussion; and

·      
anxiety secondary to trauma.

[38]        
Dr. Hatlelid’s report of October 2011 notes that the bruising, facial
lacerations, muscular injury to the chest wall, and strained ankles had all
resolved.

[39]        
Dr. Hatlelid was of the view that Ms. Kondor experienced some degree of
post-traumatic stress, and that the Accident resulted in a significant increase
in her anxiety and depression levels. Shortly after the Accident, he increased
her anti-depressant medication to provide relief for those symptoms.

[40]        
Dr. Hatlelid prescribed massage therapy and physiotherapy. Ms. Kondor
tried massage therapy but did not go to many sessions as her concerns about
hygiene made the experience uncomfortable. She began physiotherapy about a
month after the Accident and has continued with it ever since. Ms. Kondor has
tried every type of therapy offered including laser, ultrasound, manual
therapy, manipulation, deep tendon friction, acupuncture, exercise, IMS, and
taping.

[41]        
Ms. Kondor attended at Dr. Hatlelid’s office eight times during the
course of the first year after the Accident. He noted improvement in her range
of motion. By February 2010, she reported feeling very upset with the
persistence of the pain. By March 2010, she found that her level of pain
increased with activities including long drives, sitting at a computer,
household chores, and playing with her nieces. On subsequent visits she
reported little improvement in her pain levels.

[42]        
Dr. Hatlelid encouraged Ms. Kondor to get more exercise and discussed
the possibility of a progressive exercise program. While she did not pursue a
formal exercise program, she did some exercises at home. She continued with
physiotherapy as it provided some assistance with pain management, but it did
not assist in reducing her overall pain symptoms or improve her ability to
function. The only other treatment prescribed for Ms. Kondor was the
anti-depressant medication and Naprosyn, an anti-inflammatory. She was also
advised to use Ibuprofen and has continued to do so.

[43]        
In his report of October 2, 2011, Dr. Hatlelid concluded that Ms.
Kondor’s neck and back pain was having a significant impact on her
occupational, recreational, and social activities. He found that her anxiety
and depression had not returned to pre-Accident levels. He concluded with the
following comments on prognosis and future treatment:

It has been over two years since Ms. Kondor’s accident and
she continues to have significant symptoms of pain which are causing
limitations in all aspects of her life… Despite this, I believe that there is
still a fairly good prognosis for continued improvement in her condition and
perhaps, at some point in the future, for complete resolution of her symptoms.
However, given the length of time which has [elapsed] since the accident, and
the slow improvement, any further improvement is likely to be very slow and [may]
take 6 months to a year or longer. There is also a slight chance that her
symptoms will be even more long-term or perhaps even permanent.

If her symptoms are not
improving, she might benefit from a referral to a Rehabilitation Specialist (a
Physiatrist) to see if any further investigations such as MRI etc., would be
warranted or if other modalities (special exercise program, muscle injections
etc.) would be useful. This referral would need to come through her lawyer’s
office.

[44]        
Dr. Hatlelid also suggested she might benefit from psychological
counselling or a referral to a chronic pain clinic. He suggested a referral to
a psychiatrist to optimize her medication regime. Finally, he suggested a
referral to a kinesiologist, or personal trainer, and that an ergonomic
assessment of her workplace might be useful.

[45]        
One unusual feature of this case is that after this report was sent, Dr.
Hatlelid never actually referred Ms. Kondor to a physiatrist, a chronic pain
clinic, a kinesiologist, or a personal trainer. His report of October 2, 2011 was
provided to Ms. Kondor’s lawyer and the suggested referrals were not pursued.
Dr. Hatlelid did not directly recommend such referrals to Ms. Kondor. She has
had an ergonomic assessment of her workplace and has continued to see a
psychiatrist on occasion.

[46]        
Ms. Kondor experienced some important changes in her personal and work
life in the period after the Accident. Mr. Hope left his position in 2010 and
the pharmacy administration underwent a significant re-organization. The pharmacy
had operated as a single unit with Women’s Hospital under the direction of the Provincial
Health authority. Under Mr. Hope, the Children’s pharmacy had an assistant
director and five coordinators. After the re-organization, the pharmacy became
part of the Fraser Health Unit. A Director of Lower Mainland Pharmacy Services,
Ms. Linda Morris, was appointed to have regional responsibility for four
hospital units which included Children’s. Beneath the director were two
coordinators with regional responsibilities; one for dispensary services, and
one for clinical services. In other words, the management positions in the four
hospital units were consolidated so the number of positions was reduced and the
directors’ responsibilities were increased.

[47]        
Under the re-organization, Ms. Kondor was given the position of
Supervisor of Dispensary/ Parenteral services, and in that role she reported to
the Coordinator of Dispensary Services. The effect of the re-organization was
that Ms. Kondor’s job duties increased somewhat and she did not have the
flexibility she used to have. She found it somewhat difficult to be responsible
for the increased scope of work and larger portfolio. Her former position
involved a lot of project work which she was permitted to do on her own
schedule. She also lost the benefit of Mr. Hope’s support and his close
presence.

[48]        
Her new position was at a lower pay grade, however she was “red
circled”; in essence she was grandfathered at her former level of pay. She
remained at that pay level until she decided to change positions in September
2012. She felt that she could not adequately perform the work required of her
as Supervisor of Dispensary/ Parenteral services while she was working reduced
hours. In September 2012, she changed roles and worked as a Clinical
Pharmacist, Drug Information at Children’s. After leaving her supervisory role,
she was no longer “red circled”, and accordingly she dropped three pay grades
which meant a reduction in her wage of approximately $10 an hour. Shortly
thereafter, in January 2013, she was seconded into the position of Coordinator
of Information Services and Technology which is considered a clinical position
but involves maintaining the systems and planning projects with other
stakeholders.

[49]        
These changes at work occurred in the period after Ms. Kondor moved out
of the House. The move was motivated both by the upkeep issues with the House,
outlined above, and by her desire to be closer to her parents. She initially
lived with her parents, but in July 2012 she rented an apartment close to her
parents’ home in Port Moody. Her new residence significantly extended her drive
to and from work.

[50]        
Ms. Kondor’s father had been diagnosed with prostate cancer years
earlier but in early 2012 the cancer metastasized. He slowly declined and
passed away in early November. This was a very stressful time for Ms. Kondor.
She took stretches of time off work to care for her father and give her mother
some respite. To that end, in September 2012, she took a compassionate care
leave for six weeks. Her father passed in November, 2012.

[51]        
With the stress at home and work and the persistent neck and back pain,
Ms. Kondor’s OCD symptoms became worse in 2012. In February, she reported to
Dr. Hatlelid that her OCD symptoms were out of control. In October, she made a
similar report and was also showing symptoms of depression. Ms. Kondor also
reported poor sleep and ongoing neck, arm, and upper and lower back pain. She
was referred to a new psychiatrist, Dr. Moniwa, who confirmed her level of OCD
symptomology by way of letter to Dr. Hatlelid in November 2012. Shortly
thereafter, she was again referred to Dr. Whittal for additional treatment.

[52]        
In 2012, the Fraser Health administration realized that Ms. Kondor was
working reduced hours without having gone through any formal process. She was
required to seek accommodation for reduced hours. Dr. Hatlelid provided a
supportive medical opinion and in May 2013, Ms. Kondor received formal approval
to work 5.5 hours per day (the “Accommodation Agreement”). The Accommodation
Agreement also placed limits on sustained neck flexion, sitting, or standing.
However, aside from the need for a reduction of hours, she was able to do all
of the activities required in her role. The only accommodation truly required
for her condition was the reduced hours. A limitation was placed on how much
intravenous equipment she could lift, however that was not part of her everyday
routine. An ergonomic assessment of her workspace was undertaken and some
changes were made to facilitate her work.

[53]        
Ms. Kondor saw Dr. Whittal on February 18, 2013 and reported that her
OCD symptoms increased significantly after the Accident. Dr. Whittal treated
Ms. Kondor 17 times between April 2013 and January 2014 using the ERP protocol.
She believes Ms. Kondor is responding positively to the treatment, although her
response is slower than it was in the 1990s and early 2000s. She believes this
is “perhaps due to a more complex presentation with the addition of driving
fears, frequency of appointments and the presence of chronic pain.” Dr. Whittal
concluded her report with the following comments:

It does appear as if the motor vehicle accident likely
increased her anxiety and OCD, although it is not possible to definitively
state this, as I had no contact with her between 2000 and February 18, 2013.
Overall Ms. Kondor has worked hard in treatment and her prognosis for continued
improvement is optimistic.

Ms. Kondor will likely require
maintenance treatment, even if infrequently, for the next 1 – 2 years. I
anticipate that the contamination concerns will continue to decrease with ERP
but the scrupulosity concerns, which are reflected in her beliefs that she is a
bad person, will take longer to resolve. With sustained treatment, I do believe
that it will be possible, from an OCD perspective only, to return Ms. Kondor to
a level of functioning she enjoyed prior to the motor vehicle accident.

[54]        
Ms. Kondor has continued to receive excellent performance reviews from
her employer. Since 2013, she has continued in the position of Coordinator of
Pharmacy Information Systems. This is only one pay grade below her former
position. She continues to work reduced hours. She continues to be the primary
support for her mother who has rheumatoid arthritis but remains mostly
independent.

[55]        
At the present time, Ms. Kondor experiences pain in her neck, upper back,
and arms every day. The pain continues to impact her activities and work. She
does little or no gardening in her own home but does some limited gardening for
her mother. Prior to the Accident she did a lot of knitting but has had to give
up that activity. As reported to Dr. Hatlelid, she is able to do all of her
housework including cooking and cleaning but must pace herself to get it
accomplished. She continues to have symptoms of OCD, anxiety, and depression.

[56]        
In his second report dated January 25, 2014, Dr. Hatlelid notes that Ms.
Kondor continues to have daily symptoms more than four years post-Accident.
While there has been some very slight improvement, he opines that there is
unlikely to be significant change in the future. He believes that with the
Accommodation Agreement in place “she can continue to work at her present level
and, if she keeps a regular exercise program, it is unlikely that her condition
will deteriorate or that she will need to restrict her job further in the
future.” He is also of the opinion that Ms. Kondor’s “pre-existing anxiety
problems have played a role in maintaining the muscle pain and tightness, and
in turn the pain and resulting limitations have increased her anxiety.” He
recommends ongoing counselling with Dr. Whittal but anticipates that the OCD
will be a chronic condition which Ms. Kondor can attempt to manage with
medication and therapy. Finally, he recommends a referral to a physiatrist and
that she work on flexibility and muscle strength with a kinesiologist or
personal trainer.

Causation

[57]        
The parties have no issue between them regarding the law of causation.
The difficulty is how to apply the law to the unusual circumstances in this
case. In Raikou v. Spencer, 2014 BCSC 1, Skolrood J. recently summarized
the current status of the law. I can do no better than adopt that summary:

[58]      It is well established that the plaintiff must
prove on a balance of probabilities that the defendant’s negligence caused or
materially contributed to an injury. The defendant’s negligence need not be the
sole cause of the injury so long as it is part of the cause beyond the range of
de minimus. Causation need not be determined by scientific precision:
see Athey v. Leonati, [1996] 3 S.C.R. 458, at paras. 13-17 [Athey].

[59]      The primary test for causation asks: but-for the
defendant’s negligence, would the plaintiff have suffered the injury? The
“but-for” test recognizes that compensation for negligent conduct should only
be made where a substantial connection between the injury and the defendant’s
conduct is present: see Resurfice Corp. v. Hanke, 2007 SCC 7, at paras.
21-23; Clements v. Clements, 2012 SCC 32 at para 8 [Clements].

[60]      Causation must be established on a balance of
probabilities before damages are assessed. As McLachlin, C.J.C. stated in Blackwater
v. Plint, 2005 SCC 58 at para. 78:

Even though there may be several tortious and non-tortious
causes of injury, so long as the defendant’s act is a cause of the plaintiff’s
damage, the defendant is fully liable for that damage. The rules of damages
then consider what the original position of the plaintiff would have been. The
governing principle is that the defendant need not put the plaintiff in a
better position than his original position and should not compensate the
plaintiff for any damages he would have suffered anyway: Athey.

[58]        
In the present case, it is clear there is a tortious cause for Ms.
Kondor’s continuing symptoms. However, there is also a non-tortious cause,
being Ms. Kondor’s pre-existing psychological condition. In Raikou, Skolrood
J. explained the proper approach to assessing the contribution of pre-existing
conditions at para. 62:

[62]      Where, as here, a
plaintiff has pre-existing conditions, the court must consider the relationship
of those conditions to the current complaints. A defendant tortfeasor is liable
for all injuries caused by the tort even if those injuries are more severe than
might otherwise be the case due to the pre-existing condition (the “thin skull
rule”). However, the defendant is liable only for the injuries actually caused
by the accident and not for any effects of the pre-existing condition that the
plaintiff would have experienced in any event (the “crumbling skull rule”). Put
another way, the defendant is liable for the additional damage but not the
pre-existing damage (Athey, at paras. 34-35).

[59]        
In Zacharias v. Leys, 2005 BCCA 560, Esson J.A. commented on the
difficulty in applying the crumbling skull rule where there is a chance the
plaintiff would have suffered the resulting harm in any event, at para. 16:

[16]      The crumbling skull
rule is difficult to apply when there is a chance, but not a certainty, that
the plaintiff would have suffered the harm but for the defendants’ conduct.
Major J. addressed this issue in Athey when he wrote, at paragraph 35, that
damages should be adjusted only when there is a "measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence." Such a risk of harm
need not be proved on a balance of probabilities, which is the appropriate
standard for determining past events but not future ones. Future
or hypothetical events should simply be given weight according to the
probability of their occurrence. At paragraph 27, Major J. wrote that "if
there is a 30 percent chance that the plaintiff’s injuries will worsen, then
the damage award may be increased by 30 percent of the anticipated extra
damages to reflect that risk." In the same paragraph, he went on to say
that a future event should be taken into account as long as it is a "real
and substantial possibility and not mere speculation."

[60]        
Justice Esson went on to explain that it is appropriate even in a “thin
skull” case to reduce the plaintiff’s damages where there is a proven
measurable risk that he or she would have relapsed in any event. However, it is
not necessary to establish that a pre-existing condition is already manifest and
disabling before it can be taken into account: Zacharias, at para. 18.

Conclusions on Causation

[61]        
The critical issue in this case is the relationship between Ms. Kondor’s
pre-existing OCD and her ongoing pain and the resulting disability. There is
both a prospective and retrospective aspect to the analysis. The extent to
which Ms. Kondor’s pre-existing condition is the cause of the pain and
disability she has experienced to date must be assessed. This is so, because
she should not be compensated for pain and disability she would have suffered
without the Accident. In addition, I must consider whether the defendants have
established a measurable risk that she will likely suffer future symptoms and
disability in any event of the Accident.

[62]        
I found the reports of Dr. Hatlelid very useful for providing an
accurate history of the progression of Ms. Kondor’s OCD, depression, and pain
symptoms. However, the opinions of Dr. Whittal and Dr. Koch were critical to
properly understand the relationship between the pre-existing OCD and Ms. Kondor’s
ongoing pain symptoms. I found their explanation of the relationship between
the pre-existing condition and the Accident symptoms instructive. I accept
their opinions regarding the nature of Ms. Kondor’s OCD and depression symptoms,
and their opinions regarding the past and future impact of her pre-existing
condition on her physical injuries caused by the Accident.

[63]        
Dr. Whittal noted in cross-examination that Ms. Kondor’s work in a
hospital pharmacy can increase her OCD symptoms in two ways. First, the nature
of the work provides opportunities for her to perceive contamination. Second,
Ms. Kondor’s concern about the health of her patients produces additional
stress. Indeed, the intrusive thoughts which lead to her compulsions are all
related to concern over the health or well-being of others. Dr. Whittal
described Ms. Kondor as someone who has an excessively high level of
responsibility and concern for others. She is concerned about being
contaminated herself, but is much more concerned about passing it on to others.
Dr. Whittal also agreed that OCD would impact on Ms. Kondor’s perception of
pain. In other words, the greater the level of her OCD symptoms, the more
likely it is her perception of pain would be increased. Ms. Kondor’s depression
is also related to the OCD. If her OCD is under control, then the reduction in
the OCD symptoms will reduce the level of her symptoms of depression.

[64]        
Dr. Koch, a registered psychologist and clinical adjunct professor with
the Department of Psychiatry at UBC, saw Ms. Kondor for a psychological
assessment. Dr. Koch prepared a medical legal report dated January 6, 2014, for
the defendants and opined that the Accident:

…has more likely than not
resulted in (a) modest exacerbation of Ms. Kondor’s Obsessive Compulsive
Disorder, (b) a Specific Phobia of motor vehicle travel (although part of her
driving anxiety and avoidance can be explained by her OCD[)], and (c) a second
episode of Major Depression, the latter now partially remitted. Her depression
was very likely exacerbated by her father’s last death and illness. It is probable
that Ms. Kondor would have suffered a clinically significant depression
associated with her father’s death even in the absence of the subject MVA.

[65]        
Dr. Koch provided the following opinion regarding the relationship
between Ms. Kondor’s OCD and the injuries suffered in the Accident:

Regrettably, Ms. Kondor entered the subject MVA with a
clinically significant OCD with a previous history of driving anxiety as part
of her OCD. She also had at least one episode of Major Depression. In my
opinion, these pre-existing conditions more likely than not contributed
to her current difficulties in the following ways.

1.     Her pre-MVA OCD status made
it more likely that any psychosocial stressor would lead to worse OCD symptoms.

2.     Her previous OCD concerns
about harming others (i.e., hitting a pedestrian when driving) and associated
excessive feelings of responsibility for others’ safety made her more likely to
develop driving anxiety and phobic avoidance of driving.

3.     Her pre-MVA OCD status made
her more likely to doubt her cognitive functioning and thus contribute to
self-perceived problems in concentration and work efficiency.

4.     Her previous episode of
Major Depression increased her probability of developing a subsequent episode
of Major Depression independent of specific psychosocial stressors from an
approximate base rate of 15% (estimated lifetime prevalence of MDD in women) to
at least 50%.

5.     Her high level of pre-MVA anxiety, including her OCD,
made her more attentive to pain sensation and likely contributes at least
partially to pain-related disability.

[66]        
Dr. R. Douglas Hamm, a specialist in occupational medicine, provided an
independent medical opinion on Ms. Kondor’s functional ability and fitness to
work, which was based in part on a Functional Capacity Evaluation (“FCE”)
performed by Louise Craig, a physiotherapist. I found Dr. Hamm’s report of
limited assistance for two reasons. First, for his assessment of functional
ability he relied on Ms. Craig’s FCE. I conclude that her FCE was flawed in
ways outlined in the rebuttal report of Gary Worthington-White, an Occupational
Therapist.

[67]        
With regard to Ms. Craig’s FCE, I accept the following criticisms
outlined by Mr. Worthington-White:

i.        Ms.
Kondor did not provide consistent full effort during testing and, as a result,
the test and evaluation is likely not a full and accurate representation of her
physical abilities and work tolerances.

ii.        Ms.
Kondor’s reports of pain during the evaluation did not correspond with her actual
demonstrated ability outlined in the functional pain scale utilized. In other words,
she overrated the actual impact of her pain on her abilities.

iii.       Ms.
Kondor’s work is primarily administrative and, contrary to Ms. Craig’s
conclusion, she has the demonstrated ability to perform the basic job demands.

[68]        
Mr. Worthington-White does accept Ms. Craig’s opinion that Ms. Kondor
presents as deconditioned. He notes that if she could improve her general
physical conditioning, she would likely improve her functional and activity
tolerances. I agree with that assessment.

[69]        
Dr. Hamm did not have access to Dr. Whittal’s reports in the preparation
of his report. This fact grounds my second criticism of his report, insofar as
it does not fully consider the impact Ms. Kondor’s OCD symptoms have on her
physical symptoms and ability to function at work. In that sense, Dr. Hamm’s report
is one dimensional; it examines Ms. Kondor’s reported physical limitations
without adequately considering the relationship between the physical symptoms
and her pre-existing psychological condition.

[70]        
Prior to setting out my conclusions on the crucial causation issues, I
must comment on the way in which Ms. Kondor’s post-Accident medical care was
managed. I have already noted that Dr. Hatlelid made a number of
recommendations to counsel regarding possible referrals to deal with chronic
pain. However, up to the date of trial, Dr. Hatlelid had not made any of those
recommendations to Ms. Kondor. She was not referred to a physiatrist, a chronic
pain clinic, a kinesiologist, or a personal trainer. She was, however, referred
to two psychiatrists and Dr. Whittal. It is evident that Dr. Hatlelid perceived
that the best approach to treating Ms. Kondor’s symptoms was through
professionals dealing with the OCD and depression issues, rather than the
professionals to whom individuals with chronic pain issues are usually
referred.

[71]        
I should note the defendants do not argue that the failure to seek such
resources amounts to a failure to mitigate, and I make no such finding. However
the treatment plan implemented is, at the very least, suggestive that Ms.
Kondor’s ongoing symptoms are closely tied to her pre-existing condition.

[72]        
Having set out the background circumstances in some detail and my view
of the various expert reports, I arrive at the following conclusions with
regard to causation:

·      
Ms. Kondor suffered the physical injuries noted in Dr. Hatlelid’s
reports which I have summarized at paragraph 37. In addition, the Accident
caused an increase in her anxiety and OCD symptoms.

·      
Ms. Kondor’s OCD symptoms were, at the time of the Accident,
increasing as a result of the family stress impacting her life. She was also
finding the challenges presented by the Coordinator position she had taken on
two years earlier somewhat stressful. The combination of these factors elevated
the OCD symptoms which were, in any event, chronic.

·      
The overlay of the physical symptoms from the Accident on Ms.
Kondor’s pre-existing psychological condition has been problematic for her.
Many accident victims would recover from such physical injuries within 6 to 18
months. However, the interplay between Ms. Kondor’s OCD and her neck and back
strain has led to a level of chronic pain. In other words, this is a classic
“thin skull” situation.

·      
At the same time, some of her present difficulties were not
caused by the Accident. A simple example of this is her perception that she is
not performing well at work. This appears to be a persistent view held by Ms.
Kondor. She believes that her work performance is below the standard expected
of her and fears that children in the hospital will be harmed as a result of
her substandard work. In fact, she performs her work at an extremely high
level. She has never had a poor performance review, either before or after the Accident.
All of her supervisors are effusive in describing her work ethic and product.
Her decision to take a lower paying job in September 2012 was not necessitated
by an inability to do work as a result of Accident injuries; she chose to
change jobs because of her persistent obsessive concerns.

·      
The failure of her care team to refer her to a physiatrist or a
chronic pain clinic is unfortunate. I would expect that a multi-disciplinary
approach to her chronic pain condition could have provided some earlier symptom
relief. However, I accept the opinions of Drs. Hatlelid and Hamm that it is
unlikely her pain symptoms will completely resolve in the future.

·      
Even if the Accident had not occurred, Ms. Kondor would have had
an episode of severe depression and an increase in her OCD symptoms in 2012.
The death of her father was very difficult for her. It occurred at a time when
there was a great deal of stress at work. She would have taken the compassionate
leave from work in any event.

·      
While Ms. Kondor’s pain symptoms will likely never fully resolve,
I conclude there is a good possibility that the increase in OCD symptoms and
depression caused by the Accident will resolve through counselling and
treatment with Dr. Whittal. As noted by both Dr. Koch and Dr. Whittal, any
decrease in the OCD symptoms will result in a corresponding improvement to her
pain symptoms.

[73]        
I also arrive at the following conclusions with regard to Ms. Kondor’s
future:

·      
In light of Ms. Kondor’s struggles with OCD, I conclude there was
little or no possibility she would have been promoted to a more senior position
in Children’s even if the Accident had never occurred. While this may initially
appear inconsistent with the glowing reviews she received from supervisors, I
arrive at the conclusion because of her profound and ongoing struggle with OCD.
As she acknowledged, dealing with the symptoms was and is exhausting. Ms.
Kondor has done an admirable job of hiding the extent to which she experiences
intrusive thoughts and engages in compulsive behaviour from family and work
colleagues. However, the impact of that struggle is evident from her home life.
She was not able to manage and keep up the House. Even without the Accident,
she would never be free from the ongoing struggle. As Dr. Whittal noted, unfortunately
the pharmacy work environment provides fertile ground for Ms. Kondor’s
intrusive thoughts.

·      
The same reasoning which leads me to conclude that Ms. Kondor
would not have been promoted leads me to conclude that it is very unlikely she
would have worked past age 65, let alone to age 70 in the absence of the Accident.
Ms. Kondor’s ongoing struggle with OCD symptoms would have prevented her from
continuing past the age where she will be entitled to maximum pension benefits.
In my view it is very likely she would have retired between the age of 61 and
65 in any event of the Accident. Ms. Kondor’s emphasis on career development,
and her continued efforts in her present employment, lead me to conclude that
even with her current injuries, she is likely to work into her 60s. However,
given her injuries, it is unlikely she will be able to work as long as she
might otherwise have been able. Further, she is restricted to working on a
part-time basis.

·      
I conclude there is some possibility that Ms. Kondor will be able
to work more than 5.5 hours per week in the future. I would place that
possibility in the range of 25%. I arrive at this conclusion in part because of
the benefit she will receive through the continued counselling with Dr.
Whittal. Although Dr. Hatlelid made a number of recommendations for future
care, these were never passed on to Ms. Kondor, namely, attending a
physiatrist, and working on flexibility and muscle strength with a
kinesiologist or personal trainer. If she follows these recommendations, there
is some chance she will increase her stamina and ability to work. However, it
is more likely than not that she will be unable to return to full-time work for
a sustained period. Of course, my conclusions about the possibility of her
being promoted and the likelihood she would work past the age of 65 have been
rendered virtual certainties with Ms. Kondor’s chronic pain.

·      
If the Accident had not happened, I conclude she would have
attempted to work full time until retirement. There would have been periods
when she would have gone on leave as she did when her father passed away. There
is also some chance she would have had to reduce her work hours to accommodate
her ongoing struggles. This is a material risk because of her OCD symptoms and
her ongoing, but unreasonable, concern about the quality of her work. Quite
simply, there was a material risk she would have had a similar kind of
reduction in her work hours because of the effect of life stressors on her
chronic anxiety and OCD. I assess that risk at about 25%.

Damages

[74]        
Having arrived at these conclusions on the nature and extent of Ms.
Kondor’s injuries and the relationship between her pre-existing condition and
the symptoms caused by the Accident, I must consider the following damage questions:

1)       How
much should Ms. Kondor be awarded for non-pecuniary damages?

2)       How
much should she be awarded for past income loss?

3)       How
much should she be awarded for loss of future income or earning capacity?

4)       How
much should she be awarded for cost of future care?

5)       Should
any amount be awarded for loss of housekeeping capacity?

1)       Non-Pecuniary Damages

[75]        
The factors to consider when assessing the amount to award for
non-pecuniary damages are set out in Stapley v. Hejslet, 2006 BCCA 34. In
the circumstances here, the most important factors include the severity and
duration of the injuries and the impact of those injuries on Ms. Kondor’s
lifestyle, and most significantly on her ability to work. She is suffering from
chronic pain and is only 46 years old. The ongoing symptoms from the Accident
will affect her enjoyment of life for many years. Of particular significance is
that her ability to work has been impaired. Her chosen career as a hospital
pharmacist was at the core of her identity. The limitation on her ability to
work is a significant loss to Ms. Kondor. It is, however, tempered by the fact
that she has continued to work and will likely be able to do so into her 60s.

[76]        
Ms. Kondor’s activities outside of work were somewhat limited prior to
the Accident. She is still able to spend time with her mother, other family
members, and friends. However, the quality of that time, especially the time
she spends with her nephews and nieces has been negatively impacted. In
addition, her two main recreational pastimes, knitting and gardening, have been
restricted because of her pain. I have concluded it is unlikely she will ever
be able to perform such activities in a manner equivalent to her pre-Accident
level. These losses will have a measurable impact on her quality of life.

[77]        
Ms. Kondor submits that the appropriate award of non-pecuniary damages
in these circumstances is $125,000. In support of this submission, she relies
on the following cases:

·      
Eccleston v. Dresen, 2009 BCSC 332;

·      
Zhang v. Law, 2009 BCSC 991;

·      
Shapiro v. Dailey, 2010 BCSC 770 (cost of future care
award varied on appeal, 2012 BCCA 128, non-pecuniary damages were not a ground
of appeal); and

·      
Tsalamandris v. MacDonald, 2011 BCSC 1138 (cost of future
care award varied on appeal, but non-pecuniary damages were not at issue and
therefore were undisturbed: 2012 BCCA 239).

All of these cases involve plaintiffs who developed
chronic pain with some symptoms of depression.

[78]        
The defendants submit that the appropriate range of damages is $75,000
to $80,000. In support of this, they rely on the following cases:

·      
Beaudry v. Kishigweb, 2010 BCSC 915;

·      
Sendher v. Wong, 2014 BCSC 140; and

·      
Raikou.

[79]        
They also say that in order to put Ms. Kondor in the position she would
have been if the Accident had never taken place, a reduction of 40% should be
applied to account for her pre-existing conditions.

[80]        
In Eccelston, the 49-year-old plaintiff was awarded $120,000 for
non-pecuniary damages six years after suffering soft tissue injuries in a motor
vehicle accident. She went on to develop chronic pain and depression as a
result of the injuries suffered in the MVA. At the time of the trial the
injuries were almost completely debilitating. She was unable to return to the
workforce. In Zhang, the plaintiff was awarded $125,000 eight years
after an accident for injuries which included soft tissue injuries, chronic
pain, depression, and a mild traumatic brain injury. She was unable to pursue
any of the many recreational activities she took part in before the accident
and had a limited capacity to work.

[81]        
In Shapiro, the 29-year-old plaintiff was left with a
constellation of chronic pain and mood disorder symptoms that meant she would
face “a lifetime of struggling with pain and fatigue in everything she does”.
The decision with the most similarity to the present case is Tsalamandris.
The plaintiff was a 47-year-old overachiever who suffered from debilitating
chronic pain and depressive disorder as a result of injuries sustained in two
motor vehicle accidents. She was awarded $110,000 for non-pecuniary damages.

[82]        
The cases cited by the defendants are of less assistance. The
circumstances of the plaintiff in Raikou are not similar to those of Ms.
Kondor. The decision in Beaudry provides fewer details of the
plaintiff’s circumstances. It is evident the plaintiff in that case suffered
injuries with some similarity to those of Ms. Kondor, but it appears the
consequences to her work life were not as dramatic as those suffered here.
Further, the long-term consequences were uncertain. The decision in Sendher is
of little assistance, simply because of the complicated circumstances of that
plaintiff, a 35-year-old female. The assessment of damages involved injuries
sustained in four motor vehicle accidents and the court found the plaintiff exaggerated
her symptoms. Further, the analysis was complicated by a finding that the
plaintiff failed to mitigate. The court also had great difficulty in assessing the
plaintiff’s prognosis. The award of $75,000 for non-pecuniary damages, reduced
by 20%, provides little guidance for the present circumstances.

[83]        
Awards in other cases involving similar injuries to plaintiffs in
similar circumstances provide a useful guide to the court. However, I must make
an award that is tailored to the specific circumstances of Ms. Kondor. Of
course, the amount awarded must be fair to both parties: Miller v. Lawlor,
2012 BCSC 387 at para. 109, citing Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229. In these circumstances I conclude that a fair
amount to award for non-pecuniary damages, taking into account Ms. Kondor’s
particular circumstances and having regard to similar cases, is $110,000.

[84]        
However, I am also of the view this award must be reduced to take into
account my conclusions on the relationship between Ms. Kondor’s pre-existing
condition and the injuries suffered in the Accident. As I have noted, she would
have suffered depression and anxiety as a result of her father’s death in any
event of the Accident. Similarly, independently of the Accident, she would have
had an increase in anxiety and OCD symptoms as a result of the difficulties at
work arising from her increased responsibilities and the changes in structure in
her workplace. These circumstances created a material risk that Ms. Kondor
would have difficulty at work and trouble with her daily and recreational
activities even if the Accident had not occurred. In other words, her loss of
enjoyment of life has been caused, to some extent, by her pre-existing
psychological condition. I find that in order to place her in the position she
would have been but for the Accident, I must reduce the award by 15%.
Accordingly, the amount awarded for non-pecuniary damages is $93,500.

2)       Past Income Loss

[85]        
The parties are not far apart on their positions on the amount of Ms.
Kondor’s past income loss. The sole issue is whether her reduction in hourly
wage in September 2012 when she accepted a lower paying position was caused by
the injuries she suffered in the Accident. I have concluded the decision was
not caused by the Accident. It was caused by Ms. Kondor’s perception she was
not working at a level sufficient to fulfill her duties. She was of the view
she could not fulfill her duties because of the Accident symptoms she was
experiencing. However, there is no support for this position. Ms. Kondor was
performing her supervisory position fully to the satisfaction of her employer.
She continued to be regarded as an exemplary employee and received excellent
reviews. Her decision to take the lower paying position was motivated by her
anxiety and her skewed perception of her own performance. Her perception that
she could not do the work was incorrect and unreasonable. It was driven by what
Dr. Whittal described as Ms. Kondor’s excessively high level of responsibility
and concern for others. This perception was not caused by any injury suffered
in the Accident.

[86]        
Having concluded that Ms. Kondor is not entitled to recover the wage
difference arising because of her change to the lower paid position in 2012
means that Ms. Kondor is entitled to damages of $80,321.47 for past wage loss
to the trial date, plus $1,538.87 for prejudgment interest. This amounts to
$81,860.34. I have accepted the defendants’ calculations of those amounts.

3)       Loss of Future Earning Capacity

[87]        
A loss of future earning capacity may be awarded where the plaintiff has
established a “real and substantial possibility of a future event leading to an
income loss”: Perren v. Lalari, 2010 BCCA 140 at para. 32. The loss
is to be assessed based on the probability of the occurrence of future events.

[88]        
A claim for loss of future earning capacity engages two key questions:

a)       has
the plaintiff’s earning capacity been impaired by his or her injuries; and, if
so

b)       what
compensation should be awarded for the resulting financial harm that will
accrue over time?

[89]        
The assessment will necessarily involve a comparison between what the
plaintiff would probably have earned if the Accident had never occurred and
what she probably will earn having suffered the injuries in the Accident.
However, the overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11. In essence,
the court must endeavour, insofar as possible, to put the plaintiff in the
position she would have been in, if not for the injuries caused by the
defendants’ negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA
106 at para. 185.

[90]        
It is possible to assess the future loss of income using either an
earnings approach or a capital asset approach. The appropriate approach will
depend on the circumstances of the case. Whichever approach is used, it is
important to calculate the loss taking into account all negative and possible
contingencies. Of course, the assessment is not a mathematical calculation; it
is an exercise in judgment based on all relevant evidence: Rosvold at
para. 18.

[91]        
The use of a multiplier of annual income is one possible method of
assessing the future loss. An economist’s projections based on multipliers can
be of assistance to the court. It may be useful in appropriate circumstances to
start the analysis of future loss with reference to projections based on
multipliers: Jurczak v. Mauro, 2013 BCCA 507 at para. 37.

[92]        
There is no doubt the evidence has established a real and substantial
possibility that Ms. Kondor will suffer a future loss of income as a result of
the injuries suffered in the Accident. Given the circumstances of this case,
the loss must be assessed by comparing what Ms. Kondor would probably have
earned without the Accident with what she will probably earn in the future. This
requires the court to consider two hypothetical futures, those being the future
she might reasonably have expected to live in the absence of the Accident, and
that which she will live now, having sustained her injuries. I have set out my
conclusions on how Ms. Kondor’s work future would probably have unfolded if she
had not been injured in the Accident at para. 73 of these reasons. I have
also set out my conclusions on how her future will probably unfold given her
constellation of symptoms and ongoing psychological challenges. My conclusions
that she will likely continue to work into her 60s and that she likely would have
been able to do so full time without the Accident, make this an ideal case to
start the assessment by using the earnings approach. However, a pure loss of
earnings approach is not possible in these circumstances, given the number of contingencies
that could affect either hypothetical future scenario. In these circumstances I
will start the analysis by utilizing the future income multipliers provided by
Mr. Kevin Turnbull, the chartered accountant and economist who provided opinion
evidence for the plaintiff.

[93]        
In order to use the multipliers, I must first arrive at the probable
figure for Ms. Kondor’s annual loss of income. I accept the approach to the
calculation of this figure put forward by the defendants. That is to say, it is
to be based on the assumption Ms. Kondor will continue to work 5.5 hours per
day or 27.5 hours per week. I note that Mr. Turnbull’s calculations utilized a
much shorter work week of 19.5 hours based on the assumption that Ms. Kondor’s
future work hours would be similar to those she worked during a short period of
time in late 2013. That assumption is clearly inconsistent with Ms. Kondor’s
actual work history since the Accident. I also accept the defendants’
submission that the appropriate wage figure to use post-Accident is $58.67 per
hour. This figure is the wage rate she received in her position as Supervisor
of Dispensary/ Parenteral services, and not the lower wage rate Ms. Kondor was
earning at the trial date. Using these assumptions, Ms. Kondor’s annual loss of
income is $30,473.

[94]        
Using the multipliers provided by Mr. Turnbull for each $1,000 of lost
income based on the new discount rate of 1.5% and the annual income loss of
$30,473, produces the following income loss amounts for retirement ages of
61-64:

[95]        
This is a helpful starting point to guide the assessment of the future
loss. However, the numerous contingencies, both positive and negative, in both
future scenarios mean that I must take a global view of the evidence to assess
the fairness of the future award. Upon doing so, I conclude there is a much
better chance that Ms. Kondor would have worked longer before retiring without
the Accident than she will now, suffering with her current chronic pain
symptoms. That probability means that the use of the multiplier applied to an
annual earnings loss, while helpful, likely understates her total income loss. It
is simply a matter of fairness that the loss of capacity should include an
amount for those additional years of earning capacity of which she has likely been
deprived. Accordingly, I find that a fair assessment of her loss of future
earning capacity is $550,000.

4)       Cost of Future Care

[96]        
Ms. Kondor will continue to require treatment from Dr. Whittal. Ms.
Kondor asks for an award of approximately $4,100, based on Dr. Whittal’s recommendation
as to the number of future treatments. The defendants dispute that the need for
future therapy is related to the Accident. In the alternative, they say that Ms.
Kondor would have required some of that counselling in any event and suggest
the figure of $2,500 would be appropriate. I accept Ms. Kondor would have
required further treatment from Dr. Whittal at some future point in time;
however, the timing of her current need was to a large extent caused by the Accident.
I award $3,500 for that counselling.

[97]        
The defendants agree that an award of $15,000 for attendance at a pain
clinic is appropriate. Accordingly, I award $15,000 for that attendance.

[98]        
Ms. Kondor seeks an award for the cost of 12 physiotherapy treatments a
year for 25 years. Ms. Kondor says the physiotherapy provides her with limited
pain relief and improvement in range of motion. However, it has not improved
the plaintiff’s conditioning. Thus the defendants, by contrast, suggest this
treatment has provided her only with temporary relief of symptoms. Accordingly,
the defendants say she should not receive an award for a treatment which is
largely ineffective. I agree that the limited benefit of the physiotherapy is
such that Ms. Kondor has not satisfied the burden of proving it is a required
future care expense. However, she will be attending a pain clinic and, it is very
likely she will see a physiatrist based on the evidence presented at trial. On
that basis, I can fairly conclude that she will continue with some form of personal
training or physiotherapy for some time in the future. The defendants suggest
the amount of $720, which represents the cost for one year of treatment, is a
fair amount for such an award. In my view that is inadequate. I award the sum
of $3,500 for future physiotherapy or similar physical therapy.

[99]        
The total award for cost of future care is $22,000.

5)       Loss of Housekeeping Capacity

[100]     The
plaintiff seeks an award of $20,000 under this head of damages. I decline to
award any amount for loss of housekeeping capacity. As Dr. Hatlelid noted in
his second report, Ms. Kondor is able to do all of her housework, cooking, and
cleaning. In addition, she provides assistance to her mother with these tasks. However,
Dr. Hatlelid did note that Ms. Kondor must pace herself to perform these
chores. While she can no longer do all of the gardening she did before the Accident,
it is unlikely she will need gardening assistance in the future because of the
change in her living circumstances. She is able to do some gardening to assist
her mother and it is likely that her mother’s house will be sold in the near
future. She is no longer living in the House which will also have to be sold.
In these circumstances, the appropriate way to approach her loss of ability to
garden is to take that into account when arriving at a fair award for
non-pecuniary damages. I have done so.

Summary

[101]     In
summary, I award Ms. Kondor the following amounts:

[102]     Ms. Kondor
is also entitled to costs at Scale B. If any offers made by either party are
relevant to the costs award and the parties are unable to agree on costs, they
may arrange through trial scheduling to make written submissions on that issue.

“Butler J.”