IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141222

Docket: 10-4907

Registry:
Victoria

Between:

Julie Dhaliwal

Plaintiff

And

Gerhard John
Meerdink and

Bandstra
Transporation Systems Ltd.

Defendants

Before:
The Honourable Madam Justice Duncan

Reasons for Judgment

Table of Contents

Overview.. 3

Pre-accident Education and Work
Experience. 4

Pre-accident Leisure Activities. 6

Pre-accident Health Issues. 7

Boxing Day 2008. 7

Physical Injuries. 8

Psychological Effects. 9

Return to Work. 9

Post-accident Activity Level and
Family Life. 10

Medical Interventions. 12

The Plaintiff’s Career Post-accident. 14

The Plaintiff’s Plans for Further
Education. 17

Expert Opinions. 18

Physiatrist – Dr. James Filbey. 18

Pain Specialist – Dr. John-Paul
Etheridge. 19

Credibility and Reliability. 20

Causation. 20

Non-pecuniary Damages. 20

Loss of Homemaking Capacity. 24

Past Wage Loss. 26

Loss of Future Earning Capacity. 27

Cost of Future Care. 31

Special Damages. 32

Summary. 33

Overview

[1]            
On December 26, 2008 the plaintiff, Julie Dhaliwal, was injured in a
motor vehicle accident. She was the front seat passenger in a van driven by her
husband David. The couple’s three boys, ranging in age from 9 to 13, were
seated in the back of the van. The family was en route from 100 Mile House to
their home in Prince George. As they headed north out of Williams Lake the
weather became progressively worse as snowy conditions developed. Mr. Dhaliwal
was concerned about the road conditions and decided to turn off the highway to
wait out the snow storm. He found a side road and signalled his intention to
turn left. Before Mr. Dhaliwal could complete the turn a semi-trailer
driven by the defendant passed them on the left. The semi-trailer ran the
Dhaliwal family van off the road. Liability for the accident has been admitted.

[2]            
The plaintiff developed pain on the right side of her neck and in her
left piriformis/hip area after the accident. In the first few years after the
accident she experienced extreme anxiety about driving in winter conditions.
Despite extensive therapy and treatment the plaintiff maintains the pain continues
to impair her physical activities and prevents her from fulfilling her goal of
attaining a Master of Health Studies degree (“MHS”). While the plaintiff has
enjoyed career success since the accident, she believes that without obtaining her
MHS she has little chance of successfully advancing her career in health
management. She seeks compensation for loss of sick bank entitlement, loss of
capacity to perform household and home maintenance activities, loss of future
income earning capacity, cost of future care, non-pecuniary damages and special
damages.

[3]            
The defendant does not dispute that the plaintiff suffered soft tissue
injuries to her right neck/shoulder and left hip/piriformis muscle as well as
psychological symptoms in the form of winter driving anxiety. The defendant’s
position is the plaintiff’s future income earning capacity has not been
impaired and while she experiences ongoing effects from the accident they are
neither severe nor debilitating. The defendant acknowledges a modest award for
non-pecuniary damages and the cost of future care is merited, but disputes the
plaintiff’s entitlement to a claim for housekeeping or for full repayment of
her sick bank entitlement.

Pre-accident Education and Work Experience

[4]            
The plaintiff was 38 years of age at the time of the accident and 43
years of age at the time of trial. She was born in Vancouver and grew up in 100
Mile House. In 1991, after two years of post-secondary education and missionary
work in the Philippines, she relocated to Abbotsford to take an early childhood
education program. She met David Dhaliwal that year and married him in 1992.

[5]            
The plaintiff attained a certificate in Early Childhood Education in
1994. While studying for it she worked at a daycare and her husband attended
BCIT to qualify as an electrician. The plaintiff went on to pursue a diploma in
Special Needs, completing it in 1997. During her studies she also worked as a
residential support worker at a group home for adults with mental and physical
disabilities.

[6]            
While the plaintiff was both working and upgrading her education she
gave birth to her first son, Dorian, in August 1995. Two years later Riley was
born, six weeks early and partway through the plaintiff’s final semester of
studies for the Early Childhood Education diploma.

[7]            
Shortly after Riley was born, in 1997, the Dhaliwal family relocated to
Prince George when David secured a job there as a fireman with the Prince
George Fire Department. The family grew again in 1999 when Brock was born. Mr. Dhaliwal
continued to work with the Prince George Fire Department and has advanced to
the rank of acting captain.

[8]            
The plaintiff started work on her Bachelor of Arts degree in Child and
Youth Care via distance online education in the winter of 2000. Despite having
three young children and working outside the home when her husband’s shift work
permitted, the plaintiff did course work for one to three hours a day once the
children were in bed. She had no difficulty meeting deadlines and received her
degree from the University of Victoria in 2004. The plaintiff said balancing
her family, job and education took diligent planning but she was able to do it.

[9]            
Mr. Dhaliwal said his wife began her school work at about 8:30 p.m.
and studied for two to three hours. He felt she coped very well with the
demands of a career, university study and family. Mr. Dhaliwal said his
wife has always been a focussed and driven individual.

[10]        
Once the plaintiff finished her B.A. she started thinking about pursuing
a Master’s degree; however, she wanted a break from school to focus on work and
raising her children. She did not realistically anticipate starting a further
degree program until they were in high school. Mr. Dhaliwal confirmed his
wife has always been intent on furthering her education, including attaining a
Master’s degree.

[11]        
The plaintiff was required to complete two practicums while studying for
her B.A. She successfully challenged one based on past work experience. She
completed the second one in 2004 at the adolescent psychiatric ward at the
University Hospital of Northern British Columbia (UHNBC). Sherri Hevenor was
the director and manager of mental health and addictions programs for Northern
Health and supervised the plaintiff during her practicum. Ms. Hevenor
became the plaintiff’s career mentor.

[12]        
Ms. Hevenor suggested that the plaintiff apply for a job at the
adolescent psychiatric unit. She did so, and was the successful candidate. The
plaintiff worked initially as a team member but was promoted to team leader in
May 2007. This was the plaintiff’s first time in a leadership role with people
reporting to her. She began to learn about the application of various
collective agreements. The plaintiff found she was hiring people with advanced
degrees and she could see how important a Master’s degree was to career
advancement. The plaintiff looked into two Master’s programs and decided
Athabasca University’s online distance education Master’s program suited her
better than a program requiring classroom attendance.

[13]        
The plaintiff’s career has always been very important to her. She
started work in her field later than her husband, who is four years her senior.
Their plan has always been for him to retire, perhaps as young as 56, while she
continues to work full time. They would consider relocating to the Fraser
Valley where they both have family. The plaintiff plans to continue to work in
health care if they relocate, either for another health authority or through
contract work. Mr. Dhaliwal confirmed that a firm retirement date and a
move from Prince George are dependent upon the plaintiff’s career.

[14]        
As will become apparent later in these reasons, the plaintiff continues
to enjoy career success with Northern Health. In 2009, she advanced from her
role as team leader to manager. The next step for her career advancement would
be to pursue a director position.

Pre-accident Leisure Activities

[15]        
Before the accident the plaintiff was a fit, active and highly energetic
woman. Mr. Dhaliwal described her as an outgoing, approachable, bubbly
person who everyone wanted to be around. She was an energetic “go getter”.

[16]        
The plaintiff has always enjoyed exercise, either at a gym or at home. Her
husband is a certified personal trainer and set up a home gym. The plaintiff
typically ran approximately five kilometres several times a week, even in the
winter, with her friend, Melanie Dyck. The two were thinking about training for
a triathlon. The plaintiff ran, hiked or worked out with her husband so they
could have time together as a couple. The plaintiff also played soccer in a
recreational league in the spring and summer. She said the only time she was
“just Julie” and not someone’s mom or co-worker was on the soccer field.

[17]        
In terms of family activities, the Dhaliwals liked to hike and camp. They
had kayaks and bikes. They had ski passes to Hart ski hill and often went
skiing in the evening. They had an outdoor skating rink in their back yard
during the winter. Mr. Dhaliwal said his wife was very energetic and had
no pain or discomfort from physical activities. The plaintiff enjoyed her
active lifestyle and felt it was good for her health and for stress management.

[18]        
Mr. Dhaliwal said the plaintiff slept very well before the accident.
She was energetic and cheerful when she woke up. She made breakfast and lunches
for everyone before going to work.

[19]        
The Dhaliwals live in a 3,600 square foot home in the Beaverley area, about
ten kilometres outside of Prince George. The plaintiff did essentially all of
the housework prior to the accident by choice, although Mr. Dhaliwal and
the boys would help with doing the dishes. Mr. Dhaliwal took care of the
exterior maintenance, with help from the boys as they got older. The plaintiff
would shovel snow to make a path from the house to the ice rink in the back
yard. She did this mostly for exercise. She also tended to raised flowers beds
in the yard and, on occasion, mowed the lawn.

Pre-accident Health Issues

[20]        
The plaintiff suffered from headaches after the birth of her youngest
child. At that time she always had a child on one hip and felt she was out of
alignment. The plaintiff saw a chiropractor for the headaches and they did not
cause her any difficulty in her day-to-day life.

[21]        
The plaintiff had one previous car accident in 2006. Her car fishtailed
on black ice and spun around. She had a stiff neck that evening and some
tenderness and tightness in the right side of her neck. The plaintiff went to
her chiropractor and took Advil. She felt a little overwhelmed and fatigued at
first but that passed. She recovered completely from that accident well before
the accident on Boxing Day 2008, which is the subject of this action.

Boxing Day 2008

[22]        
On December 26, 2008, at around lunchtime, the plaintiff and her family
left her parents’ home in 100 Mile House. It was a sunny day but as they left
Williams Lake the sky got darker and it began snowing. The visibility became
progressively worse to the point the plaintiff had to roll her window down to
see how far they were from the ditch. Oncoming vehicles had their hazard lights
on but they were not visible until the last minute.

[23]        
The plaintiff noticed a semi-trailer truck behind them. She felt it was
tailgating them and was worried it would pass them and wipe out their already
poor visibility.

[24]        
Given the “white out” conditions, Mr. Dhaliwal began looking for a
road to the right where he could safely turn off and wait out the storm but
there was nowhere to go. At one point there was a slight break in the snowfall
and he saw a road and a farm on the left. He slowed down and put on his turn
signal. He began to turn and the semi-trailer crashed into the Dhaliwal family’s
van on the left, behind the driver’s side door. The impact propelled the van into
the ditch.

[25]        
The plaintiff described the collision as shocking. She thought they were
going to flip over. Her children were yelling. When the van came to a rest she immediately
took off her seatbelt, climbed over the dog kennel to the back seat and checked
on the children. Police attended, as did a Good Samaritan who took the
plaintiff and the boys to a nearby house. An ambulance came to the house and
emergency health personnel checked the family’s condition.

Physical Injuries

[26]        
Almost immediately after the accident the plaintiff felt stiff, tender
and sore down the right side of her neck, her upper trapezius area and her left
hip. It felt like her muscle had been pulled and her hip bone was bruised. She
had a headache along her hairline and down the right side of her neck and a cut
on her knee from climbing to the back of the van.

[27]        
Over the next few weeks the plaintiff felt like she had been hit by a
truck. Everything hurt; she was jumpy and emotional and she found it difficult
to sleep. She would wake up with pain on the right side of her neck but when
she turned over to her left side her hip would hurt.

[28]        
The plaintiff continues to experience pain in her neck and hip. The pain
in her hip area throbs and aches down the left side of her hip and in her left
buttock. If she sits for a long time she experiences a shooting pain down her
leg to her calf. The plaintiff exhibited difficulty sitting while giving her
evidence, often subtly shifting her weight over to her right hip or standing
from time to time.

Psychological Effects

[29]        
The plaintiff suffered nightmares for the first six months after the
accident. These generally involved her family members dying in the accident. She
also began to experience nightmares about the accident occurring again. These
were triggered by weather forecasts for snow. In the year before trial she
noticed a significant decrease in the frequency of nightmares.

[30]        
After the accident the plaintiff experienced anxiety while driving in
the snow or riding as a passenger in a vehicle during snowy weather. From time
to time she had to work from home when the weather was bad and the anxiety flared
up.

[31]        
The year before trial was the plaintiff’s best year in terms of weather-related
anxiety. Mr. Dhaliwal drove her to work once, mainly because the snow was
too deep for her car. The plaintiff stated she no longer lets the forecast or
her worries about it impact her life. She pays attention to the weather but is
not paranoid about it.

[32]        
Mr. Dhaliwal confirmed his wife was “an emotional mess” about
winter driving after the accident, but things on that front have improved.

Return to Work

[33]        
The plaintiff was off work after the accident until late February 2009.
She returned to full time hours on a graduated return to work. She works an
eight-hour day and missed a total of 242 hours. Those hours were deducted from
the plaintiff’s bank of sick days which she carries forward from year to year.

[34]        
The plaintiff felt comfortable and confident once she returned to work
but found sitting for prolonged periods difficult. To this day she can sit for up
to a half hour but proceeding past that point causes pain. Her supervisors are
aware of her condition so she can stand up when she needs to in meetings. Ms. Hevenor
supported the plaintiff by encouraging her to have an office day on Fridays and
allowing her to work from home if she needed to. Ms. Hevenor observed the
plaintiff to be energetic at the beginning of the week but by the end of week
she appeared to be fatigued.

Post-accident Activity Level and Family Life

[35]        
The plaintiff has been unable to return to her pre-accident activity
level. She tried to play soccer but encountered pain in her left buttock which
radiated through her hip area. She does not ski as frequently or for as long as
she did prior to the accident because the pain increases in her hip, neck and right
side of her shoulder. The family does not hike as much because she cannot
tolerate the pain that goes with hiking steep grades for long periods of time. If
they go for walks, they are for shorter distances than before the accident.

[36]        
The plaintiff has tried running periodically since the accident but the
pain increases to a point where she cannot tolerate it. After some injections
at a pain clinic this past May, she ran a few days in a row but the pain
increased and she gave up running. The pain shoots down the back of her leg.

[37]        
Mr. Dhaliwal said his wife does not participate in activities with
their boys like she used to before the accident. She does not plant raised
flower beds in the yard any more. He and the boys help out in the house more
than they used to. The plaintiff does not vacuum as it makes her really sore
but she does everything else. If she has to bend or lift things, he or the boys
will step in and do it. They have all taken on extra tasks inside the house. Mr. Dhaliwal
tries to do laundry during the week so it does not pile up on weekends. He also
does some dusting. The boys help their mother get groceries out of the car so
she can avoid heavy lifting.

[38]        
The plaintiff says her self-esteem has been adversely affected by the
accident. She feels differently about herself as a result of her reduced
activity level. She feels less capable. She is frustrated and tries to do
things while hoping for a different outcome. It has been difficult for her to
accept things were not getting better. The plaintiff has gained ten pounds
since the accident, which has caused her distress. She blames the weight gain on
reduced activity. She broke down in tears while giving evidence about her
frustrations and the changes in her life since the accident.

[39]        
Notwithstanding the plaintiff’s physical discomfort the Dhaliwal family
has travelled together since the accident. They went to India in January 2010
and have gone on cross-Canada motorhome trips, ski vacations, trips to Mexico
and camping trips to the Okanagan. The plaintiff says her vacation time now
involves resting and reading rather than participating in activities, such as
kayaking, as she did before the accident.

[40]        
The plaintiff and Mr. Dhaliwal share the feeling that the impact of
the accident on the plaintiff has affected their relationship. They are not as
physically active as they once were and aspects of their intimate relationship
have changed, both emotionally and physically. The plaintiff feels the accident
has affected her relationship with her children. She used to be active and
engaged with them, not on the sidelines as she feels she is now. She
acknowledges she is not as patient with them as before.

[41]        
Mr. Dhaliwal echoed this observation, stating that the plaintiff is
not as patient as she used to be. Mr. Dhaliwal observed that at the end of
a work day his wife will say she is sore, which she did not do before the
accident. She does not use the home gym after work much. She no longer plays
soccer. She is generally more emotional and irritable since the accident. While
she has energy she is unable to do things she used to do and this makes her
more irritable.

Medical Interventions

[42]        
The plaintiff followed all the treatment recommendations from her family
doctor and those from the various specialists to whom she was referred. She has
undergone numerous x-ray and MRI examinations. She received massage therapy. She
attended physiotherapy and learned exercises to help alleviate the tightness in
her neck and hip muscles and to strengthen them. She still does those exercises
but no longer attends physiotherapy.

[43]        
The plaintiff saw a chiropractor, Dr. Terrance Warawa, every month or
two before the accident and on a more frequent basis after the accident. In the
initial period of treatment after the accident she felt her neck was hard to
adjust and she would leave the sessions feeling worse than when she arrived;
however, now she feels the adjustments are beneficial to her. She has been
attending chiropractic therapy every two weeks since July 2014 and intends to
continue.

[44]        
The plaintiff’s doctor has prescribed medication to assist her with pain
and sleep. She takes Nortriptyline at night as a sleep aid. It takes the edge
off the pain and allows her to be more comfortable. She takes Flexoril to stay
asleep but generally takes it only on a Friday night as it can cause
“fogginess” the next day. She takes Advil and Tylenol a few times per week to
manage her headaches. She has tried other drugs such as Arthrotec and Lyrica
but found the side effects far outweighed any benefits she gained from their
use.

[45]        
The plaintiff has undergone several courses of injections aimed at
reducing pain in her hip and neck. She first saw Dr. Ames for trigger
point injections but found the treatment was aggressive, painful and ineffectual.
She had a CT guided injection in her hip in 2011 performed by Dr. Greek in
Victoria. It was very painful and she had temporary foot drop after the
injection which worried her; however, she gained some relief from the pain for
about three months. She tried to run and go to exercise class but the increased
activity brought on the pain again.

[46]        
The plaintiff received a second CT guided injection in June 2012 from Dr. Chui
in Prince George. Dr. Chui injected directly into her piriformis muscle
rather than around it. This treatment was very painful but it helped her more
than the first injection from Dr. Greek. However, when she increased her
activity level she would again experience breakthrough pain. The benefits
lasted four months. She also experienced foot drop again which persisted for
three to four hours, as it did in 2011.

[47]        
The plaintiff received another injection in 2013 from Dr. Chui. She
waited a year between treatments because the process is painful and any error
could lead to permanent damage. The benefit of this injection was that she only
felt the pain if she increased her activity level.

[48]        
In January 2014, the plaintiff saw Dr. Cleveland at the Okanagan
Interventional Pain Clinic. Dr. Cleveland performed a right cervical C3-C6
medial branch block in her neck. The plaintiff felt good for about three months
with less pain in general and no headache upon waking in the morning. Her headaches
were brought on by vacuuming, pushing a grocery cart, loading or unloading
groceries or other activities involving her upper body. She reports neck
aggravation resulting from remaining seated and typing for long periods of time.

[49]        
In May 2014, the plaintiff saw Dr. Etheridge at the Okanagan
Interventional Pain Clinic for an injection into her left facet joint at L4,
her neck, left buttock and hip. These injections decreased her nagging daily
pain but the pain returned if she increased her activity level. She had a
similar series of injections in July 2014 at the clinic but Dr. Cleveland used
a trigger point technique which she found very painful. The plaintiff gained
some relief from the pain for nearly three months after the July treatment.

[50]        
The plaintiff attended counselling in 2010 and 2011 to address the
emotional effects of the accident. She did not start counselling right away
because she was overwhelmed with appointments and caring for her boys. She went
for further treatment in 2012 and 2013 involving EMDR (eye movement
desensitization reprocessing) which was of great benefit to her. As noted
earlier in these reasons, the plaintiff’s winter driving anxiety has improved significantly
in the years since the accident, especially over the last year.

[51]        
The defence filed a report from Dr. Semrau dated May 31, 2013. He
is a psychiatrist who carried out an assessment of the plaintiff on May 28,
2013. Dr. Semrau opined that the plaintiff’s delay in addressing her
emotional issues arising from the accident hindered her recovery; however, the
defence did not maintain this position given the plaintiff’s advances in
recovery since she saw Dr. Semrau.

The Plaintiff’s Career Post-accident

[52]        
In the spring of 2009, the plaintiff’s employer, Northern Health,
underwent a structural reorganization. Ms. Hevenor, the plaintiff’s
manager, transitioned into a director’s role and encouraged the plaintiff to
apply for a manager position. The plaintiff was subsequently hired as manager
of Youth Regional Programs at UHNBC. In May 2012, issues arose with the manager
of adult programs and the plaintiff was asked to assist in that department. The
manager of adult programs ultimately left Northern Health and the plaintiff was
successful in the competition to fill the vacancy. Since September 2013, the
plaintiff has held the position of Patient Care Manager of Medical Services at
the UHNBC.

[53]        
Ms. Hevenor testified the plaintiff has always received exceptional
job reviews and performed at a high level; however, Ms. Hevenor was
concerned about the cost to the plaintiff of her exceptional job performance in
terms of the fatigue it caused her by overextending herself.

[54]        
The plaintiff’s new job as a manager came with a bigger budget, a higher
workload and a significant increase in the number of people reporting directly
to her. The plaintiff’s responsibilities include ensuring staff are properly
trained and understand the processes and policies of Northern Health. She has
to respond to complaints and work with the media department. She is on call
after hours for emergencies from time to time. She must file timely incident
reports. The frequency of these reports has also increased because the staff in
medical services are more “hands on” and, as a result, there are more workplace
injuries than in other departments. There are more patients than rooms and many
families in distress.

[55]        
The plaintiff spends half her work week writing reports and preparing other
documentation. She tries to break up the time she spends writing reports but if
she has a deadline she has to work consistently and as a result experiences
increased pain. This causes problems with concentration and her mood fluctuates
with the pain.

[56]        
The plaintiff has worked directly and indirectly with Aaron Bond since
2006. He is a manager at UHNBC. Mr. Bond described the plaintiff before
the accident as an energetic, enthusiastic, driven individual who was always
positive and focussed. After the accident Mr. Bond has observed the
plaintiff to be in pain at times and not as emotionally even. He described her
as energetic at the beginning of the week but noted her energy level tails off
towards the end of the week.

[57]        
The plaintiff spends her weekends resting for the week ahead because as
the work week progresses her pain increases. Prior to the accident her weekends
were busy, filled with spontaneous activities. Now she has to rest and pace
herself which she never did before.

[58]        
In 2013, the plaintiff earned $103,000 as a manager. The next career
step within Northern Health is for the plaintiff to pursue a director’s position.
She believes having an MHS is a critical step in allowing her to move up in the
organization. This is consistent with the evidence of Ms. Hevenor and Anne
Chisholm, the Health Services Administrator for UHNBC.

[59]        
Ms. Hevenor testified that for people of Ms. Dhaliwal’s age there
is an expectation that they will obtain a Master’s degree. She observed a shift
in the hiring preferences of health authorities in approximately the last three
or four years away from practical experience and in favour of business or
academic training. Ms. Hevenor had a background in nursing and was
pressured to pursue a Master’s degree but resisted.

[60]        
Ms. Hevenor described the role of a director as one involving more
responsibility and report writing than a manager position. Directors are
required to spend a lot of time in meetings and working in front of a computer.
The responsibilities involve more strategic planning and high level thinking
and there is nearly no front line exposure. The pace of work is more intense
than at lower levels of management. The budgets are much higher and
responsibilities cover a large part of the overall operation of the hospital,
not just one unit.

[61]        
Anne Chisholm, in her role as Health Services Administrator, hires and
oversees directors at UHNBC. She knows of the plaintiff’s reputation as a good
performer with a high potential for advancing to the director level. Ms. Chisholm
prefers her directors to have seven to ten years of relevant manager level
experience. She stated that applicants without a completed Master’s degree
would be expected to complete one in a maximum of three to four years. She
explained that a qualified candidate with a health or business related Master’s
degree would be hired before an equally qualified candidate from within the
health authority who did not have a comparable degree.

[62]        
Ms. Chisholm said a Master’s degree is important for moving from
one health authority to another. It is also useful in obtaining contract work.

[63]        
In Ms. Chisholm’s view if the plaintiff wants to advance to a
director’s position she should start working on her Master’s degree immediately.
She noted that many current directors are in their fifties and there may be
retirements in the next five years. Ms. Chisholm said a director with Ms. Dhaliwal’s
level of experience as a manager would start at $116,000/year. There is
currently a wage freeze in effect.

[64]        
Directors are subject to stringent performance requirements. If they are
unable to meet those expectations they are encouraged to move on or they are terminated.
Ms. Hevenor testified she had a glowing review as director and was let go
two weeks later without cause. She viewed the step from working within the union
to pure management as one involving some vulnerability.

[65]        
The plaintiff did not apply for Ms. Hevenor’s director position
when it came up, nor did she apply for other vacant director positions. While
she feels she has the drive and intelligence, she does not have the capacity to
take the next step in responsibility. It takes all of her focussed energy to
manage her pain and function as a manager. As a director, the plaintiff would
lose her ability to break up her day because all day meetings are not optional,
nor is sustained time in front of a computer. She stated she is not capable of
working like that.

The Plaintiff’s Plans for Further Education

[66]        
The plaintiff listed her intent to work on a Master’s degree on her
resume when she applied for the job she now holds. In early 2013, she began
working on the application process for Athabasca University’s program but did
not have the materials ready for submission in time to start by September 2013.
The plaintiff knew she would have to complete her degree within three to four
years of starting it. She did not get her application in for a September 2014
start.

[67]        
The plaintiff testified that after much soul searching she has decided
she cannot pursue a Master’s degree. The program would require at least 12 to
15 hours per week of committed study time and for the plaintiff that might realistically
be 15 to 20 due to interruptions from pain and how exhausted she feels at night.
She does not know if she can come home fatigued from work and coping with pain and
focus on academic pursuits at 9:00 p.m.

[68]        
The plaintiff has taken two online courses since the accident, one
boating course and a management course. She stated both took her much longer
than expected. She found it difficult to concentrate later in the evening when
she was in pain. She had to get an extension to complete the management course.

[69]        
Mr. Dhaliwal was surprised how long it took his wife to complete
the boating course and he watched her squirm in discomfort as she worked at the
computer.

[70]        
The academic intensity of a Master’s degree is more demanding than the
pace of a B.A. If the plaintiff had not been injured she feels she would have
been able to do the degree.

[71]        
Aaron Bond completed his Master’s degree in 2011 while working full time.
It took him four years. He confirmed the intensity of the degree program and
the expectations of students. He studied after work or attended classes from
4:30 or so until 10:00 p.m., sometimes later. He spent a lot of time working on
the computer.

[72]        
The plaintiff did not discuss her decision against proceeding with her
Master’s degree with her husband. He was in a car accident in September 2013
with two of the boys and he sustained a severe concussion. The family was
devastated. The accident did not affect the plaintiff’s decision not to proceed
with her degree but it prevented her from discussing her decision with her
husband. She was focussed on her family’s health and did not want to add any
complications to their life at that point by raising the subject.

[73]        
The plaintiff summed up her decision not to pursue a Master’s degree by
saying she has always been a person who decided to do things and then followed
through. However, it is no longer about how hard she tries any more or how much
effort she applies. The pain impacts her sleep and concentration and those are
the things she needs to have in reserve to do more than what she is currently
doing.

Expert Opinions

Physiatrist – Dr. James Filbey

[74]        
The plaintiff tendered the report of Dr. James Filbey, a physiatrist,
dated April 19, 2011. The plaintiff reported to him that she had daily
headaches, cervicoscapular pain all the time and left hip pain all the time.
The left hip pain worsened with sitting more than 20 to 30 minutes and caused
referral of pain down the leg to the ankle. He noted the symptoms are
continuous and vary depending on the plaintiff’s activity level. The plaintiff
told Dr. Filbey she has minimized and altered her daily activities but
felt her symptoms had not improved at all.

[75]        
Dr. Filbey diagnosed the plaintiff with myofascial pain in her
right cervicoscapular muscles:  trapezius, levator scapulae, splenius capitus
and paravertebral muscles. He also diagnosed piriformis syndrome of the left
leg. Dr. Filbey found the injuries and condition were caused by the accident.
He opined that the plaintiff had essentially reached the point of maximum
medical improvement. However, he recommended a diagnostic piriformis injection
and a Botox injection, given the localized nature of her complaints. He
suggested she continue with Nortriptyline and NSAIDS or analgesics as required.
He further suggested up to 12 sessions of a therapy of her choice per year for
acute or chronic change. Dr. Filbey did not note any specific
contraindications for activities but recommended the plaintiff avoid those
activities which she had found aggravated her symptoms. He recommended the
plaintiff have assistance for heavier seasonal yard and housework.

Pain Specialist – Dr. John-Paul Etheridge

[76]        
Dr. Etheridge’s practice at the Okanagan Interventional Pain Clinic
is focussed on pain management. He prepared two reports, the first dated May
15, 2014 and the second July 4, 2014. Dr. Etheridge also gave evidence at
trial. He diagnosed the plaintiff with the following:

1.       chronic
whiplash neck pain, grade 2;

2.       right
C3-C6 facet joint generated pain;

3.       right-sided
cervicogenic headaches/daily occipital headaches;

4.       myofascial
pain of the right cervicoscapular muscles;

5.       central
sensitization changes in the neck, worse on the right;

6.       left
L4-S1 facet joint generated lower back pain; and

7.       myofascial
pain in the left hip muscles including the left glueteus maximum, medius and piriformis
muscles.

[77]        
Dr. Etheridge shared Dr. Filbey’s opinion that the accident
was responsible for the plaintiff’s injuries and condition. He also agreed with
Dr. Filbey that the plaintiff has reached maximal medical improvement. Dr. Etheridge
viewed treatment as providing the plaintiff with short term relief but she will
have fluctuating chronic pain in the future.

[78]        
Dr. Etheridge found weakness in the plaintiff’s left gluteus
muscles and felt she would benefit from hip abductor strengthening.
Strengthening the area to allow it to move well can serve to decrease pain and
increase power. He also detected a lower back problem the plaintiff probably
was not aware she had. He recommended a structured rehabilitation program to
address those weaknesses.

[79]        
Dr. Etheridge did not find any sciatic nerve irritation during
testing although he was aware Dr. Filbey found the plaintiff had referred
pain down to the ankle. He said this type of pain fluctuates.

[80]        
Dr. Etheridge suggests the plaintiff might benefit from a
rhizotomy, which is a procedure where a nerve is frozen and the tissue burned
at the point where it causes pain. It can provide relief for six to twelve
months.

Credibility and Reliability

[81]        
Overall there were few factual disagreements between the parties that
hinged on findings of credibility. The case turned more on to what extent the
plaintiff’s pain has affected her life and career path. The defendant suggests
the impact is of a lesser degree than the plaintiff maintains.

[82]        
I found the plaintiff and her husband to be credible and reliable in all
aspects of their evidence. Specifically, I accept the plaintiff’s evidence
about the impact of pain from the accident on her life and on her employment
and educational aspirations. The other witnesses for the plaintiff were equally
credible and reliable and I accept their evidence in its entirety.

Causation

[83]        
The defendant does not dispute that the accident on December 26, 2008 is
the cause of the plaintiff’s injuries.

Non-pecuniary Damages

[84]        
The purpose of non-pecuniary damages is to compensate a plaintiff for
pain, suffering, loss of enjoyment of life and loss of amenities. The award
should be fair and reasonable to both parties. The considerations which apply
in assessing an award for non-pecuniary damages are well known and were
summarized in Stapley v. Hejslet, 2006 BCCA 34 at para. 46 as
follows:

(a)      age of
the plaintiff;

(b)      nature
of the injury;

(c)      severity
and duration of pain;

(d)      disability;

(e)      emotional
suffering;

(f)       loss
or impairment of life;

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

(h)      impairment
of physical and mental abilities;

(i)       loss
of lifestyle; and

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

[85]        
The plaintiff seeks an award of $100,000 for non-pecuniary damages based
on the following authorities:

·      
Shapiro v. Dailey, 2010 BCSC 770; 2012 BCCA 128: the 23
year old plaintiff suffered soft tissue injuries to her cervical, lumbar and
sacral spine. She experienced disabling headaches, chronic pain, depressive
symptoms, post-traumatic stress disorder, anxiety and mild difficulties in
concentration and memory. The injuries affected her interpersonal relationships
and her ability to work, play, exercise and sleep. The trial judge awarded
$110,000 in non-pecuniary damages. The award was not an issue on appeal.

·      
McCarthy v. Davies, 2014 BCSC 1498: the plaintiff, 47
years of age when the accident occurred, sustained soft tissue injuries to her
neck, shoulder, upper and lower back and hip causing chronic pain and
depression. The trial judge awarded $100,000 in non-pecuniary damages.

·      
Fox v. Danis, 2005 BCSC 102; 2006 BCCA 324: the plaintiff,
28 years of age when the accident occurred, suffered moderately severe soft
tissue injuries to her cervical and lumbar spine, a prolapsed disc and nerve
compression. She had permanent and periodic pain in her neck and shoulder and
chronic pain in her lumbar spine, buttock and leg as well as headaches and
interrupted sleep. The plaintiff had previously been a very active person. The
trial judge awarded $100,000 in non-pecuniary damages and the Court of Appeal
dismissed the appeal.

[86]        
The defendant does not disagree that the accident was a frightening one and
a traumatic experience but suggests that in light of the plaintiff’s ability to
do some of the things she used to enjoy, a non-pecuniary award in the range of
$50,000 to $70,000 is fair and reasonable in this case. He cites the following
authorities:

·      
Bissonnette v. Horn, 2012 BCSC 518: the plaintiff was 37
when she was injured in a car accident. Four and a half years later at trial
she complained of ongoing neck, back, left hip and leg pain. The plaintiff also
suffered from disturbed sleep patterns and anxiety. The trial judge awarded her
$50,000 in non-pecuniary damages.

·      
Ladret v. Stephens, 2013 BCSC 1999: the 27 year old
plaintiff suffered a soft tissue injury that resulted in chronic back pain
which affected her quality of life and her enjoyment of her children. She also
had pain in her shoulders and neck. She received $60,000 in non-pecuniary
damages.

·      
Rogalsky v. Harrett, 2014 BCSC 1255: the plaintiff, who
was 53 when the accident occurred, sustained injuries that caused chronic neck,
upper back, right shoulder and other injuries. The trial judge awarded $35,000
in non-pecuniary damages.

·      
Miller v. Lawlor, 2012 BCSC 387:  the plaintiff, who was 21
years of age when the accident occurred, sustained soft tissue injuries to his
neck, back and right shoulder. His injuries impaired his ability to do heavier
tasks, and diminished his capacity to partake in certain sports and hobbies he
had previous enjoyed. He received $65,000 in non-pecuniary damages.

[87]        
In addition to the authorities provided by the parties, I note Hawkins
v. Espiloy, 2014 BCSC 1804, decided after I heard final submissions in this
case. The plaintiff was a young woman with extraordinary energy, drive and
enthusiasm. She was injured in a motor vehicle accident and experienced pain in
her right buttock consistent with sciatica, bilateral foot numbness, urinary
incontinence and other symptoms. She had difficulty driving as she could not
keep her foot consistently on the accelerator pedal. Her recreational activities
were greatly diminished by the symptoms. Although the plaintiff had enjoyed
career success, Fenlon J. concluded this was a result of sheer grit and
determination. She went on to note that the plaintiff’s stoicism ought not to
be penalized in the assessment of damages. The plaintiff was awarded $90,000 in
non-pecuniary damages.

[88]        
Prior to the accident Ms. Dhaliwal lived her life in high gear. She
was a devoted wife and mother, a highly valued employee and an active and
athletic woman. If she turned her mind to something, she applied herself and
achieved it. Her list of academic achievements is impressive. It is even more
impressive that she accomplished nearly all of them, as well as her B.A., while
raising three boys. In light of that, her accomplishments are even more
impressive. While she is still able to live a life many would regard as active,
she can no longer do what she formerly did without incurring substantial pain.
She no longer enjoys a highly active lifestyle. As a result, her quality of
life is diminished and she feels she is not as capable as she once was. The
plaintiff gets through the work week with determination but this saps her
energy levels, depriving her of the ability to do other things. She broke down
and cried when explaining how her limitations have affected her. The
plaintiff’s efforts to move past the accident are admirable. The stoicism and
determination she has displayed ought not to be a basis for reducing the award
for non-pecuniary damages.

[89]        
While no two cases are alike, I find this case closely analogous to the
plaintiff’s situation in Hawkins. I find an appropriate award for
non-pecuniary damages for this plaintiff to be $90,000.

Loss of Homemaking Capacity

[90]        
The plaintiff has always been the Dhaliwal family’s primary homemaker by
her own choice. She cooks and bakes and keeps the house clean in addition to
working full time. The family has never employed a cleaning service. Since the
accident the plaintiff has had difficulty with heavier homemaking duties such
as vacuuming, laundry and tasks requiring pushing and lifting. Her husband and
sons have stepped in to assist her with various chores and responsibilities
around the home. The plaintiff submits the evidence demonstrates Mr. Dhaliwal
and the boys have taken on an additional two to three hours per week over and
above what they did prior to the accident.

[91]        
Tawney Deschamps is the owner of Pristine Maid Service, a Prince
George-based housekeeping company. She testified her company provides
housekeeping services at the rate of $25 per hour. An additional $25 charge per
visit would apply for the time and cost to travel to Beaverly, the area outside
Prince George where the Dhaliwal family home is located.

[92]        
The plaintiff seeks an award of $10,000 for past loss of capacity based
on the fact she was trying to do too much of the housework herself and $75,000
for future loss of capacity. The plaintiff relies on Dr. Filbey’s report
that while she can complete her housekeeping if she paces herself, assistance
for heavier seasonal yard and housework would be useful in order to reduce her
pain burden.

[93]        
The defendant submits the plaintiff’s loss in this area is not
significant. In his submission, the evidence about what the plaintiff’s husband
and sons presently do to assist her is vague. Further, he submits the claim of
two to three hours per week of extra tasks for them is simply a blanket
assertion, unsupported by the evidence. The evidence from the doctors is that the
plaintiff is able to complete housekeeping tasks if she paces herself and does
not need ongoing daily or weekly assistance. The defence submits there is a
difference between a plaintiff who does not do housework because she cannot and
one who can, but with aggravation.

[94]        
In support of her argument for compensation, the plaintiff relies on McTavish
v. MacGillivray, 2000 BCCA 164 at para. 75 and O’Connell
(Lit.Guardian of) v. Yung, 2012 BCCA 57 at paras 65-66. In McTavish,
the trial judge found that the plaintiff was no longer able to perform
household services, and required the assistance of her husband and son to
complete tasks she had previously done alone. He assessed the value of the loss
by reference to the replacement cost of services. However, such an assessment
does not require that the plaintiff would hire someone to perform those duties.
The Court of Appeal concluded the trial judge had not erred in his conclusions
under this head of damages, and noted that compensation of this sort can
properly be done either via pecuniary or non-pecuniary damages, as the facts
demand.

[95]        
The case of Ladret v. Stephens, 2013 BCSC 1999 provides a helpful
overview of this area of damages. In particular, Sigurdson J. noted that the
court must carefully scrutinize the work done by family members, and that small
adjustments of responsibility do not justify a discrete assessment of damages: Ladret,
at para. 107, citing Midgley v. Nguyen, 2013 BCSC 693.

[96]        
 I find the evidence in support of the plaintiff’s claim for loss of
housekeeping capacity is limited and somewhat speculative. There are numerous
future events which impact on the nature of the loss. The plaintiff’s teenaged
sons are capable of assisting their mother with housework, as they assist their
father with yard work. There is evidence to suggest the Dhaliwals may move in
the future and they may well downsize once their sons are independent. The
difficulty in predicting future contingencies contributes to the difficulty in
quantifying this loss in pecuniary terms.

[97]        
Nonetheless, the plaintiff’s capacity to care for her home and manage
household responsibilities has been diminished, and the effect of that
diminishment has negatively impacted her life. This is a loss which ought to be
compensated but I consider it proper to account for it in respect of the
quantum of non-pecuniary damages, and I have done so.

Past Wage Loss

[98]        
As a result of the accident, the plaintiff missed work. Throughout the
period of December 29, 2008 to February 20, 2009 the plaintiff took 242 hours of
paid sick leave. She received full pay during this time from the hours she had
accumulated in her sick leave bank. Her hourly pay was $35.30 and she received
$8,542.60.

[99]        
The plaintiff’s sick bank hours can be carried forward year to year to a
maximum of 1,170. The hours cannot be cashed out. As of August 2, 2014, the
plaintiff’s banked hours totalled 658.012. The plaintiff is entitled to pay
money back into the sick bank to have the 242 hours reinstated but she is not
required to reinstate the hours.

[100]     The
defendant does not oppose an award to reinstate some of the plaintiff’s sick
bank hours. However, the defendant does not agree the plaintiff is entitled to
reimbursement for all of the sick leave hours she used. The defendant suggests
a number of negative contingencies be taken into account related to, among
other things, the possibility she will move away when her husband retires and, accordingly,
will not need access to the sick bank until retirement age.

[101]     The jurisprudence
has long recognized the depletion of sick bank credits as a compensable loss: Ratych
v. Bloomer, [1990] 1 S.C.R. 940; Cooper v. Miller, [1994] 1 S.C.R.
359. There is, however, no consistent approach to the quantification of the
loss. In Collins v. Ma, 1990 CanLII 1634 (B.C.S.C.) the trial judge
applied a negative contingency to take into account the likelihood of the
plaintiff drawing on the lost banked sick days in the future. More recently, in
Choromanski v. Malaspina University College, 2002 BCSC 771, the trial
judge rejected a defence argument that the award compensating for the loss
should be discounted to account for future contingencies based on the
plaintiff’s work history and his rate of use of sick benefits.

[102]    
In Bjarnason v. Parks, 2009 BCSC 48, Ballance J. reviewed the law
surrounding compensation for loss of sick bank credits and said:

[61] In my view, whether it is
appropriate to make deductions for contingencies in quantifying the loss will
depend upon the presence or absence of certain factors. Those would include,
for example, whether there is a maximum limit of accumulated sick leave,
whether the plaintiff is able to cash out accumulated sick leave days on
termination or retirement, whether the plaintiff has several years of
employment remaining in which to potentially use the sick leave or has only a
few months of employment left until retirement with a significant sick leave
remaining, or whether the plaintiff has left the employment in which he earned
the sick day credits altogether. It cannot be predicted with any degree of
certainty whether a person who is healthy today will be so tomorrow. Illness or
injury can afflict any one of us at any time. Placing much if any reliance on
the plaintiff’s past use of sick benefits strikes me as an unsound and
potentially unfair approach because it fails to adequately protect a plaintiff
against an unexpected serious or catastrophic illness in the future which could
occur in any otherwise healthy plaintiff, or against a future injury, which, by
its nature, is unpredictable. In neither case would those future events
necessarily be related to the plaintiff’s past use of sick benefits.

[103]     In this
case, the plaintiff’s maximum accumulated number of banked sick leave hours
stands at 1,170. She cannot cash out those hours if she leaves her employment
with Northern Health. I am satisfied the plaintiff will likely remain employed
by Northern Health for at least another nine years, at which point her husband
will be eligible to retire from the Prince George Fire Department and the
couple may relocate to the Fraser Valley.

[104]     The
plaintiff does not appear to have been a “heavy user” of sick leave hours in
the past but that does not necessarily mean this pattern will continue. She
should not face economic deprivation in the future if she becomes ill because
her sick bank hours were depleted as a result of this accident. The plaintiff’s
sick bank is an insurance policy, not a windfall to be paid out to her upon
termination. Balancing all the factors, I conclude the plaintiff is entitled to
reimbursement for all the sick bank hours she used as a result of the accident.
Accordingly, I award $8,542.60.

Loss of Future Earning Capacity

[105]     The
plaintiff earned a promotion from team leader to manager after the accident and
continues to work full time. However, she is fatigued and her pain level
increases as the week progresses. She has decided she is unable to commit to
enrolling in a Master’s program because she cannot sit for prolonged periods of
time at a computer and her pain and reduced sleep impair her concentration and
ability to focus. The plaintiff submits the evidence is clear that in order to
advance beyond her current position she must obtain a Master’s degree and must
complete the program within a maximum of four years of starting it. The
plaintiff also suggests she is at risk in the future of being unable to meet
the demands of a job which requires her to sit through long meetings and
consistently function at a high cognitive level.

[106]     The
plaintiff’s current salary is $103,000. The top range of income for a director
is currently $133,000. This amounts to a difference of approximately $30,000
per year. Assuming a retirement age of 65, the difference between those two
salaries is approximately $536,000. The plaintiff acknowledges a variety of
contingencies must be applied to that amount. This includes positive
contingencies that she would have, but for the accident, earned income higher
than $133,000.

[107]     The
plaintiff seeks an award of $400,000 to account for the fact that the accident
leaves her at a competitive disadvantage. She will not be able to compete for a
position above her present level without a Master’s degree. Without that degree
she will not be able to transfer to or work in another health authority even at
her current level. The effects of chronic pain leave her fatigued and unable to
sit for long periods of time, creating a real risk she could be terminated for diminished
performance over the long term.

[108]     The
defendant says the plaintiff has been promoted since the accident and expects
to remain with the same employer for the indefinite future. She does not have a
medical disability. She continues to work full time. There is no report from an
occupational or vocational therapist to support her claim that her capacity is
impaired. While the defendant concedes a Master’s degree is probably necessary
to be hired as a director, he points out that there will not be any vacancies
for directors for a number of years. Further, the defendant says the plaintiff would
not have enough experience in her present position to fulfill Ms. Chisholm’s
expectation of seven years or so at the management level. The defendant also
notes that the plaintiff would have to compete for the position against other candidates.
The defendant argues that even if the plaintiff obtained a Master’s degree there
is no reasonable certainty or significant chance the plaintiff would be hired
as a director. The defendant also points to Mr. Dhaliwal’s potential retirement
date in eight years or so and notes that the plaintiff may end up moving to
another health district.

[109]     The
defendant emphasizes that the plaintiff did not consult with anyone when she
decided against pursuing her Master’s degree and the reasons why she changed
her mind are unclear or unknown. The defendant argues that it is still open to
the plaintiff to apply should she wish to do so. That potential, along with the
various obstacles to becoming a director in the first place, does not prove a
reasonable possibility of loss of future income. Given these possible negative
contingencies, if an award is to be made the defendant suggests a minimal
amount in the range of $25,000 to $50,000.

[110]     The
plaintiff says that but for the accident, she would have enrolled in a Master’s
program and that enrolment would have already occurred by the time of trial. I
accept that. The plaintiff has a demonstrated history of academic success,
achieving numerous certificates, diplomas, and her B.A., all while caring for
her children and working outside the home. I also accept that the plaintiff
would have finished her Master’s program within the maximum four year period,
as outlined by Ms. Chisholm. I find that by 2017 it is likely she would
have attained enough experience in her management role to successfully compete
for a director’s position, either with a completed Master’s degree or with one
near completion. This time frame is consistent with the evidence regarding the
anticipated future retirements, upon which directorship opportunities would
open up.

[111]     I find
that Mr. Dhaliwal will likely retire at age 56, in 2023. The Dhaliwals
indicated their interest in returning to the Lower Mainland after Mr. Dhaliwal
retires. I find that if the plaintiff had by then become a director, it is more
likely than not the family would stay in Prince George for a few extra years to
allow her sufficient time to enhance her earnings to qualify for a higher
pension. Ms. Hevenor testified that pensions in the provincial civil
service are based on the five best years of earnings.

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

1.       Has
the plaintiff’s earning capacity been impaired by his or her injuries; and, if
so

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

[113]     The
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18. The appropriate means of assessment
will vary from case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.); Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.); Pett v. Pett, 2009 BCCA 232.

[114]     Insofar as
possible, the plaintiff should be put in the position he or she would have been
if not for the injuries caused by the defendant’s negligence: Lines v. W
& D Logging Co. Ltd., 2009 BCCA 106 at para. 185. The case law
recognizes two approaches to the assessment of loss of future earning capacity:
the “earnings approach” from Pallos and the “capital asset approach” in Brown.
Both approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measurable way: Perren
v. Lalari, 2010 BCCA 140.

[115]     The
capital asset approach involves considering factors such as

1) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment;

2) whether the
plaintiff is less marketable or attractive as a potential employee;

3) whether the
plaintiff has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and

4) whether the
plaintiff 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.); Gilbert v. Bottle, 2011 BCSC 1389 at para. 233; Morgan v.
Galbraith, 2013 BCCA 305 at paras. 53 & 56.

[116]     I find the
capital asset approach is best suited to the circumstances of this case. The
plaintiff, as a result of the accident, is unable to attain her previously
realistic goal of completing a Master’s degree which would in turn make her a
very attractive candidate for a director position in Northern Health or any
other health authority in the province. While the plaintiff is able to continue
earning a living, she has lost the ability to take advantage of realistic job
opportunities which might have been open to her as a result of the accident. I
find it likely she would have succeeded in a competition for a director
position in 2017 and would have worked in that capacity for 10 years before
relocating in accordance with the plan she had with her husband. I assess her
loss of earning capacity at $200,000 net of taxes. This assessment is based
generally on the amounts discussed in paras. 106 and 107 above. I have
applied further reductions to the plaintiff’s submission that $400,000 is
merited in this case to take into account other contingencies such as a shorter
career as a director in favour of contract work at less than full time hours if
the family moves from Prince George as well as the effect of future wage freeze
policies on directors’ salaries.

Cost of Future Care

[117]     An award
for the cost of future care must be medically justifiable and reasonable. The
award should be based on what is established as reasonably necessary to
preserve and promote the plaintiff’s mental and physical health: Milina v.
Bartsch, 49 B.C.L.R. (2d) 33 at paras. 211-212. This analysis should
be conducted bearing in mind that happiness and health are closely related.

[118]     Dr. Filbey
and Dr. Etheridge recommend Nortriptyline, Cymbalta and Vimovo. The
current cost of those drugs used at a consistent rate to age 80 is $56,738
using the 2% discount rate. The plaintiff acknowledges she may not use all the
medications and seeks an award of $28,000 for future cost of medication.

[119]     The
defendant does not dispute the plaintiff’s need for prescription medication but
suggests she may have some coverage through work. On balance, I find that
$28,000 is a fair and reasonable amount for future medication needs.

[120]     The
plaintiff has travelled to the Okanagan Interventional Pain Clinic several
times for treatment and plans to continue to do so in the future. She estimates
the cost to continue quarterly trips to Kelowna for treatment up to age 65 at
$21,640. The defendant does not dispute an award for travel is merited but
suggests $10,000 is more appropriate, given the possibility she may move closer
to that clinic or another one offering similar services. I find a fair and
reasonable amount to cover the cost of travel to be $15,000. This takes into
account the possibility the plaintiff will move from Prince George before she
reaches the age of 65 and will not require as much to travel to an appropriate
clinic.

[121]     Finally,
the plaintiff relies on Dr. Filbey’s recommendation that she have the
treatment of her choice up to 12 times per year to deal with acute or chronic
changes to her condition. The current cost of chiropractic treatment or other
therapy factoring 12 treatments per year, at a cost of $35 per session, up to
age 65 is $7,000. The defendant does not necessarily dispute an award for the
therapy recommended by Dr. Filbey but points out that the plaintiff’s use
of chiropractic services predates the accident and cannot be necessarily regarded
as a result of the accident. Although this may be accurate, this does not
account for the fact that the plaintiff may benefit from other therapies to
address her chronic condition. On balance, I find the plaintiff is nonetheless
entitled to an amount for treatments as recommended by Dr. Filbey and I
fix that amount at $7,000.

[122]     The
cumulative award for cost of future care is $50,000.

Special Damages

[123]     The
plaintiff has incurred the following amounts and claims them as special
damages:

[124]     The line
item for travel is, as I understand it, no longer in issue as the plaintiff has
already been reimbursed for that sum. The amount described as miscellaneous relates
to the cost of plaintiff’s clothing and sunglasses which were damaged in the
accident.

[125]     The
defendant does not take issue with any of the items claimed with the exception
of chiropractic therapy costs. On much the same rationale as addressed above in
relation to future cost of care, the defendant argues that some of the
chiropractic care was unrelated to the accident. Having regard to the
plaintiff’s pattern of visits prior to the accident, I award the plaintiff
$1,481.01 for chiropractic services.

[126]     The total
amount awarded for special damages is $3,261.27.

Summary

[127]     In
summary, I award the plaintiff the following:

[128]    
The amounts awarded for loss of future earning capacity are not net of
taxes. The plaintiff is entitled to her costs at Scale B unless there are
relevant matters of which I am unaware. If the parties cannot agree on taxation
amounts, they may contact Trial Scheduling within 30 days of the date of this
judgment to arrange a teleconference before me to address the form and timing
of submissions on taxation or costs.

“Duncan J.”

_________________________________

The
Honourable Madam Justice Duncan