IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150129

Docket: M123044

Registry: Vancouver

Between:

Christina Camilleri

Plaintiff

And

Yung S. Oh and Julia M. Bergen

Defendants

Before: The Honourable Madam Justice Loo

Reasons for Judgment

Table of Contents

INTRODUCTION

BACKGROUND

BEFORE THE ACCIDENT

Work History

Recreational and Athletic Pursuits

[redacted]

THE ACCIDENT

AFTER THE ACCIDENT

Work

Housework, Yard Work, and Recreation

THE MEDICAL EVIDENCE

Dr. Tara Sebulsky

Hillary Drummond

Dana Hornibrook

Lydia Phillips

Dr. Ryan Janicki

Roy Gillespie

Dr. Rehan Dost

Other Treatment Providers

DAMAGES

Position of the Plaintiff

Position of the Defendant

Non-Pecuniary Damages

Income Loss Generally

Past Wage Loss

Loss of Future Earning Capacity

Loss of Housekeeping Capacity

Special Damages

Future Care Costs

CONCLUSION

INTRODUCTION

[1]            The plaintiff was injured in a motor vehicle collision on July 24, 2011. Liability is admitted. The action has been discontinued against the first named defendant, Yung Oh. The remaining defendant, Julia Bergen, argues that there are no significant factual disputes in the evidence and there is largely consensus among the medical experts that the plaintiff suffers from chronic myofascial pain as a result of the collision. However, the parties are far apart on damages. The plaintiff seeks damages totalling over $865,000, with loss of future earning capacity at over $618,000 being the largest head of damages. The defendant argues that a total award in the range of $51,000 to $89,000 is reasonable.

BACKGROUND

[2]            Ms. Camilleri is 51 years old. She was raised in Toronto, Ontario and graduated from the University of Guelph with a Bachelor of applied science degree in applied human nutrition in 1982, with honours. From 1987 to 1988, she completed a clinical dietetic internship at Victoria Hospital in London, Ontario. In the industry, this internship is recognized as being equivalent to a Master’s degree thesis. She then worked as a clinical dietician from 1988 to 1990 at Parkwood Hospital and, while there, participated in interdisciplinary team rounds. In May 1988, she began her own part-time private practice as a nutrition consultant and consulted with eating disordered clients.

[3]            Ms. Camilleri and her husband, [redacted], met in Ontario. He testified that he was attracted to Ms. Camilleri because she was very outgoing, very positive, and a very high-energy person who was always engaged in a number of different activities. [redacted] was originally from British Columbia and, in December 1990, the couple moved from Ontario to the Okanagan because [redacted] wanted to return to British Columbia and they both wanted a lifestyle change.

[4]            Ms. Camilleri and [redacted] in the redacted]. They married in 1991. They have two daughters. [redacted]. Ms. Camilleri and her husband spent a lot of time supporting their daughters’ athletic goals. When they were training at the elite level, Ms. Camilleri took time away from work to support and volunteer at various events, including at least two summer training camps, fall camps, and travel to different mountains for competitions. Unfortunately, both [redacted] were forced to give up competitive skiing because of serious injuries around the time of Ms. Camilleri’s motor vehicle accident. [redacted]. As a result, Ms. Camilleri is the sole income earner of the family. She continues to work in the narrow and specialized field of counselling eating disordered patients. As a result of the motor vehicle accident, she suffers from persistent headaches, neck and upper back pain, left arm pain and numbness extending into her left hand, and is unable to work in the same manner as she did before the accident.

BEFORE THE ACCIDENT

Work History

[5]            Ms. Camilleri successfully applied for work in Kelowna before they moved to the Okanagan in December 1990.  From then until December 1991, she worked for Bioscan Wellness Corporation and initiated wellness programs for corporate clients and individuals. She then became a “contract employee” for the Canadian Mental Health Association (“CMHA”) and remained a contract employee for nearly 22 years until October 2013. During that time, CMHA held the contract for the eating disorder program clinic in the Okanagan and operated the clinic with funding from the Ministry of Children and Family Development (“MCFD”) and the Ministry of Health.

[6]            When Ms. Camilleri first began working for CMHA, she worked two days a week as the coordinator of the North Okanagan eating disorder program in Vernon and worked the remaining three days a week as the coordinator of the South Okanagan eating disorder program in Kelowna. In January 1992, Ms. Camilleri began working only two days a week as the coordinator of the CMHA North Okanagan eating disorder program and, the remaining three days a week, she worked at her private practice in her home office.

[7]            The majority of Ms. Camilleri’s private practice clients are referred to her from doctors, psychiatrists, psychologists, and other health professionals. Only a small percentage of her clients are what Ms. Camilleri describes as self-referrals. The majority of Ms. Camilleri’s clients are adult professionals.

[8]            Ms. Camilleri’s daughters were born about two years apart from each other, in or around 1993 and 1995, but she took no extended maternal leave from CMHA. Instead, she brought each of her daughters to work with her until they were three months old and, after that, [redacted] cared for the children at home. Ms. Camilleri also had the flexibility of her home office which allowed her to spend time with her daughters as infants and, when they were older, allowed her to spend time supporting them in their competitive skiing careers.

[9]            Ms. Camilleri’s resume is impressive in terms of the number of workshops and training programs she has attended in order to keep current in the field of eating disorders.

[10]        Dr. David Smith has been a psychiatrist for 15 years. He met Ms. Camilleri around the end of 2003 when she and her program director asked him to become involved with the eating disorder program. The program offers a multi-disciplinary and collaborative approach for eating disordered patients in a community clinic setting. The various disciplines include paediatrics, family medicine, dietetics, and psychiatry.

[11]        Dr. Smith testified that eating disorders affecting teenagers and young adults are the most serious and can be, at times, fatal. They are extremely challenging cases because patients with eating disorders frequently suffer from other problems such as low self-esteem, self-condemnation, and anxiety. Recovery is not measured in terms of weeks or months but rather years. Eating disorders are recognized to be a form of mental illness.

[12]        Dr. Smith was extremely complimentary of Ms. Camilleri’s work ethic and dedication to her work with CMHA. He said that Ms. Camilleri fulfilled a second, “uncompensated” role by managing and administering the eating disorder clinic. This involved a lot of additional work, as the clinic was chronically underfunded, but Ms. Camilleri was “incredibly committed” to the patients, the health system, and the community. She was “the heart of the clinic”:  a team player who brought people together, organized steering and team meetings, and kept everyone on the team committed and engaged, despite the lack of funds. She was very professional in her conduct toward patients, peers, and colleagues, and always very current with the literature and latest practices regarding the treatment of eating disorders. She often conducted outreach education for nurses, family doctors, and others, in order to educate them in their role in treating and caring for patients with eating disorders.

[13]        Ms. Camilleri was paid for eight hours a day as a “self-employed contracted employee”, although once a month she worked twelve hours a day because of a parents’ group that met in the evening each month and she occasionally worked nine hours if there were meetings scheduled at the end of the day.

[14]        Dr. Smith testified that, before the motor vehicle accident, Ms. Camilleri was a very positive and high energy person. Even after the motor vehicle accident, he was often “amazed” at how little time she took off and the capacity and fortitude she had to continue moving forward to help those who needed help, despite her own challenges.

[15]        There are few resources for people with eating disorders to draw upon in the Okanagan. There are other counsellors who describe their practice to include treating eating disorders, but Ms. Camilleri is the only counsellor or clinician that Dr. Smith knows of that has made eating disorders her sole practice area. From time to time he refers patients to Ms. Camilleri and, at times, his patients have had to wait longer to see her but he will have his patients wait because he trusts her “outcomes”. He considers her very effective and says she has an excellent ability to establish a rapport and relationship with patients as well as the skill set to help them understand and cope with their condition. She is “an outstanding clinician” who is very highly regarded.

[16]        Dr. Smith testified that, before the accident, he had a number of conversations with Ms. Camilleri about how she could earn more money in private practice rather than working for CMHA. But he said that she had a strong commitment to the public and public practice, knowing that there were many with eating disorders who cannot afford access to private practice and many with severe eating disorders who needed the multi-disciplinary approach of public practice or the community clinic.

[17]        Before the motor vehicle accident, in her three day a week private practice, Ms. Camilleri generally saw 6-7 clients a day, or 12-16 clients a week, depending, to a large extent, on her daughters’ skiing schedules because she generally took them to wherever they needed to be.

Recreational and Athletic Pursuits

[18]        Except for a gastro-intestinal issue that was under control at the time of the accident, Ms. Camilleri was healthy and physically active. She enjoyed running, cycling, camping, skiing, and water sports, including water skiing. Before the accident, in July 2011, she ran two half marathons and completed a triathlon. Ms. Camilleri and her husband have had a gym in the basement of their home for at least 20 years. They use their home gym regularly.

[19]        During the ski season, the family had ski passes to Big White and Ms. Camilleri regularly skied with her daughters and husband and was a member of a group called the Big White Racers. In the ski season before the accident, Ms. Camilleri skied 40 times.

[20]        If Ms. Camilleri spent any time away from work on vacation or holidays, the time related to her daughters’ athletic goals of being world-class athletes. In the five years before the accident, Ms. Camilleri and her husband were totally dedicated to supporting their daughters’ athletic goals.[redacted]. When their daughters were training, Ms. Camilleri and her husband skied with friends. They were both intermediate to expert skiers although, before his shoulder surgeries, [redacted] was an elite skier.

[21]        In addition to her athletic pursuits, Ms. Camilleri was passionate about gardening. It allowed her to be creative. Her house is on one-third of an acre and it has a front yard as well as a very large backyard. Historically, Ms. Camilleri planted a variety of perennials and moved, added, and subtracted plants and flowers throughout the large yard to create swathes or patterns of blooms and colours throughout the seasons.

[redacted]

[22]      [redacted] is 59 years old. He worked for most of his life [redacted] business in both Ontario and the Okanagan. He was diagnosed with systemic arthritis when he was 43 years old. His condition  deteriorated until, in 2006, he was no longer capable of working. His only source of income currently is a fairly small Canada Pension Plan disability benefit payment. Between 2006 and September 2011, he had a total of [redacted]:  a [redacted], a [redacted],[redacted]. The recovery time from the each operation is almost a year and is difficult. Following the operations, he was immobile, unable to lift his arms, and had to be dressed and fed until he had sufficiently recovered. After his last operation, Ms. Camilleri had her own physical limitations, due to the motor vehicle accident, and their daughters took care of him. The operations were successful in relieving nerve pain, but he remains limited in his range of motion, mobility, and lifting capabilities. He also has some arthritis in his knees and hips but, despite that, being the athletic and active person he is, with the support of his physiotherapist, he returned to cycling and skiing with Ms. Camilleri.

[23]        Before the July 2011 accident, [redacted] did some or much of the cooking, washed the dishes, and drove their teenaged daughters to wherever they needed to be. He mows the lawn, but otherwise, is physically unable to work in the garden, clean the bathrooms or floors, or do housework. It was all largely left to Ms. Camilleri.

THE ACCIDENT

[24]        On July 24, 2011, Ms. Camilleri and [redacted] dropped their daughters off at the Vancouver international airport because they were flying to Germany to train for three weeks with the German national ski team. On their drive back to Lake Country, they planned to have dinner with [redacted] brother in Chilliwack and then spend the night with a friend in Sardis. They were on Cultus Lake Road and [redacted] was stopped, waiting to make a right hand turn, when suddenly and without warning their vehicle was struck from the rear, as Ms. Camilleri said, “by two vehicles”. According to the notice of civil claim and response to civil claim, a 1992 Honda Accord operated by the defendant, Julia Bergen, rear-ended a 2008 Toyota Camry operated by the defendant, Yung Oh, which in turn rear-ended the 2004 Honda Pilot owned and driven by [redacted].

[25]        At the time of impact, Ms. Camilleri was seated slightly sideways in the front passenger seat with her head turned toward her husband. She says she felt her head move to the right and then to the left. She “felt strange and unusual”, upset, and then felt “nauseated”. She paused before she slowly got out of the vehicle and slowly walked to the rear of the vehicle. As she did so, she had to brace herself against the vehicle because she was so dizzy and nauseous.

[26]        By the time they arrived in Chilliwack, she was sore and fatigued. They arrived at their friend’s place in Sardis around 9:00 p.m. and Ms. Camilleri went straight to bed. The next morning, she had a very bad headache and her head, neck, and left shoulder were sore.

[27]        The couple drove home the next morning, which was Monday, July 25, and Ms. Camilleri had three or four clients to see later that afternoon. She saw them, but says that she did not feel very well. Her memory was affected, she was experiencing very bad headaches, nausea, and her neck was stiff and sore.

AFTER THE ACCIDENT

[28]        Over the next few days, Ms. Camilleri realized that the severity of her headaches and the pain in her neck and shoulders was not improving, and she “couldn’t shake it off”. On Friday, July 29, she saw her family physician, Dr. Tara Sebulsky, who recommended physiotherapy, a chiropractor, and massage therapy.

[29]        Dr. Sebulsky prescribed a nortriptyline as an anti-inflammatory but the medication contains wheat and resulted in Ms. Camilleri experiencing severe gastro-intestinal pain. Dr. Sebulsky referred Ms. Camilleri to Dr. Jamie Yu, a physiatrist, who she first saw in January 2012. Dr. Yu recommended that she try Lyrica but that also caused her gastro-intestinal pain. Ms. Camilleri learned from discussions with a pharmacist that most anti-inflammatory medication contains wheat. It was not until April 2012, when Ms. Camilleri began taking Wobenzym, a natural anti-inflammatory, that she had relief from migraine headaches. She also continues to take over-the-counter Advil for some relief for her headaches.

Work

[30]        Between July 25 and July 29, 2011, Ms. Camilleri continued to see her private practice clients. She said that she could not cancel appointments her clients made because “there’s such a need for their treatment” but she was in a lot of pain while working.

[31]        From the time of the accident on July 24, 2011 until the end of the year, Ms. Camilleri was “in incredibly bad shape”. She could not function normally: she had migraine headaches, numbness in her left shoulder, arm, and hand, she was unable to open her left hand, had no left arm strength, and her left shoulder pain radiated into her right shoulder and into her left clavicle or the front of her left shoulder. She missed time from work at CMHA and, in November 2011, she reduced her hours of work to five hours a day, although she continued to be paid for eight. She also reduced her private practice hours because of her debilitating physical symptoms.

[32]        For the first six months of 2012, Ms. Camilleri says she found work “incredibly difficult”, especially being in a seated position. This made driving the half hour from her home in Lake Country to the CMHA North Okanagan office in Vernon difficult. She also drove to the hospital where she saw patients, and to the South Okanagan CMHA office in Kelowna. She lay down whenever she could. Much of the time when she was not working for CMHA or in her private practice she spent lying down. But, in Ms. Camilleri’s words, “I didn’t have an option”. She had to drive to work and she had to work. However, by the time she arrived at work, her pain was already elevated and being at work caused her even more strain, fatigue, and pain. She reduced her hours of work “as much as possible”, limited any new patients in her private practice, modified her desk work as much as possible, and limited the amount of notes she made.

[33]        In May 2012, following Dr. Yu’s recommendation, Ms. Camilleri took one month off work because her level of pain and her injuries were not improving. It was an opportunity to see if her pain symptoms would improve and allow her more time to be treated by her physiotherapist and chiropractor. Her pain symptoms resolved somewhat during the month she was off work but, as soon as she returned to work, her level of pain increased to what it was before she took the time off. She continued to work at a reduced five hours per day two days a week at CMHA until April 1, 2013. During that time, Ms. Camilleri felt no better. She continued to experience dizziness, headaches, left arm pain that extended from her shoulder into her hand, brachial plexus pain, and nausea. Her symptoms continued to affect her work at CMHA and in her private practice.

[34]        Dr. Smith says he saw a shift in Ms. Camilleri after her accident. He said that she was clearly in discomfort, no longer had the same stamina, and no longer had the ability to work at full capacity. However, he continued to be impressed by her commitment to the program despite her physical challenges.

[35]        In April 2013, those working at the CMHA eating disorder clinic learned that, after 22 years, CMHA was no longer going to “carry the contracted government program” for eating disorder treatment and that the program was transitioning to the Interior Health Authority and the Ministry of Children and Family Development with the details to be determined. Due to the change, the CMHA could no longer pay Ms. Camilleri her full-time hours for part-time work. If she did not work her contracted eight hours a day, the government would withdraw the money from the program. Ms. Camilleri wanted to ensure that, after working with the program for 22 years, the money remained in the North Okanagan and was not absorbed into other programs. She was committed to the legacy of an eating disorder program in Vernon and committed to seeing that the program remained in some form in Vernon. As a result, from April 1, 2013 until the CMHA program ended in October 2013, she worked eight hours a day. Initially, she was asked to work the full-time hours only until June but, the program transition had not yet occurred by June and her contract was extended to the end of August, and then until the end of October 2013. Unfortunately, working the increased hours exacerbated Ms. Camilleri’s symptoms and her pain.

[36]        It was obvious to me during the trial, when Ms. Camilleri was testifying, that sitting in the witness box was causing her much pain and discomfort.

[37]        Dr. Smith explained that, after a number of years with the eating disorder program, the CMHA was concerned about risk or high-risk individuals and it was decided that the program would be brought in-house to the mental health clinic in Vernon where it became a joint venture between MCFD and the Ministry of Health.

[38]        Dr. Smith encouraged Ms. Camilleri to apply for the proposed but unclarified or not yet posted position in what was to be a new organization; so did others who were instrumental in the development of the new program. The position that was ultimately posted was an entry level clinician position that would have required Ms. Camilleri to work a full two days a week, with no flexibility, and without the four to six weeks annual vacation she had taken in the past. She chose not to apply for the position because she was physically not well enough to work without the flexibility she needed to continue with her rehabilitation program and she was physically unable to work an eight hour day. The other reason Ms. Camilleri chose not to apply for the position was just as important. For many years she had worked as the administrator of a multi-disciplinary team of medical professionals as well as being a clinician. All of that would change or disappear with the new program and position. Despite being told that she would be the number one candidate, she chose to work on rehabilitating herself and her private practice.

[39]        Ms. Camilleri presently works on average three days a week in her private practice and sees, on average, between 10-15 clients or patients each week. Generally, she spends the other two days a week working on her rehabilitation which includes seeing a chiropractor, attending massage therapy, and exercising.  She has generally kept her range of clients the same as she had before the accident but has added approximately three more clients to her practice, since she stopped working for CMHA. She testified that, if she were able to work a full five-day work week in private practice, she would have a minimum of one extra client and see an average of 25-30 patients a week.

Housework, Yard Work, and Recreation

[40]        Ms. Camilleri currently has housekeeping services for a total of three hours a week, to assist her with all of the major cleaning in her three level home, such as vacuuming, bathrooms, floors, and kitchen cupboards. I understand from her evidence that she is paying for the housekeeping services from her own pocket.

[41]        Ms. Camilleri testified that, following a discussion with the first Insurance Company of British Columbia (“ICBC”) adjuster, she hired Ken’s Horticultural Services to do a lot of the necessary yard work. There is a lot of spring and fall clean-up that needs to be done (the yard has pine trees) and there is required yard maintenance throughout the summer. Sierra Landscaping Ltd. also helped her with yard work and it seems that part of their bill was paid and part of their bill remains outstanding. However, Ms. Camilleri currently hires help for her yard and pays the cost herself. Before the accident, she did all of the yard work, although sometimes her daughter would help, and her husband mowed the lawn. However, with his arthritis, there may come a time when he will be unable to mow the lawn.

[42]        Since the accident, Ms. Camilleri has tried to ski just one run. She has not purchased a season’s ski pass because she can no longer ski.

THE MEDICAL EVIDENCE

[43]        As I stated at the outset, the defendant concedes that there is largely a degree of consensus in the medical evidence regarding Ms. Camilleri’s injuries as a result of the accident. The conclusion is that she now suffers from myofascial pain syndrome.

Dr. Tara Sebulsky

[44]        Dr. Tara Sebulsky is Ms. Camilleri’s family physician. She wrote a medical report dated November 21, 2013. At the time of the report, she had been Ms. Camilleri’s family physician for eight years, and she had several years’ worth of records of Ms. Camilleri’s previous family physician. Dr. Sebulsky was asked specific questions by Ms. Camilleri’s counsel. Her answers and opinion are as follows:

1. …

Ms. Camilleri was in good health and active prior to the motor vehicle accident. She was on a gluten-free diet although not biopsy proven for Celiac disease, a factor in later medication choices.

2. …

I believe the MVA [motor vehicle accident] on July 24, 2011 is the cause of Ms. Camilleri’s musculoskeletal complaints and inability to maintain her previous work schedule.

3. …

I believe that Ms. Camilleri is genuinely motivated to recover from her injuries.

In terms of therapies offered, Ms. Camilleri did decline a suggestion by a pain specialist Dr. Etheridge, to perform injections into her neck. In addition, she declined an offer from a plastic surgeon to perform an ulnar nerve surgery.

Ms. Camilleri experienced undesirable side-effects with trials of prescription medication, and thus she discontinued them.

Physiatrist Dr. McCann has offered to perform Botox injections but I have not yet heard Ms. Camilleri’s decision on this matter.

I have found her symptoms to be consistent with physical examination findings although I have not performed physical examinations at every visit. I have found no reason to doubt Ms. Camilleri’s complaints or motivation.

4. …

It has been more than two years since the MVA. Ms. Camilleri has attended many rehabilitation visits with physiotherapists, chiropractors and massage therapists. She has seen numerous specialist physicians and she has tried a number ofprescription medications.

I believe that she has a permanent partial disability as a result of her MVA.

5. …

I believe that Ms. Camilleri is likely to require ongoing help with yard work and housekeeping for a significant period of time. In addition, she may continue seeing rehabilitation therapists if this helps her symptoms.

…

7. …

Ms. Camilleri has made great effort at active rehabilitation, evidenced by her participation in physiotherapy and efforts at home based fitness plans. In 2012, she also struggled with anxiety and depression for which we considered psychological therapy. On a number of occasions, Ms. Camilleri commented to me on the financial stress of her reduced work capacity.

…

8. …

I believe that Ms. Camilleri will be unable to increase her caseload in the foreseeable future. My recommendation is to continue with activity as tolerated, knowing that Ms. Camilleri cares greatly about her clientele and will increase her works hours as she is able.

Hillary Drummond

[45]        Hillary Drummond has been an occupational therapist since 1977. Her firm is Creative Therapy Consultants. Ms. Drummond was asked by ICBC to assess Ms. Camilleri’s functional ability. She first assessed Ms. Camilleri at her home on August 31, 2012. Ms. Drummond testified that Ms. Camilleri’s home has a large back yard and a front yard that was not as large as the backyard. When she visited the home in August 2012, she noted that the area gardens had not been planted and things that you would have expected to be done in the garden had not been done. For example, several large flowers pots, which normally would have flowers planted in them, had no flowers.

[46]        In her first report to ICBC dated September 10, 2012, she concluded that Ms. Camilleri had limitations in her ability to sit that impacted her ability to work. She also had limitations in her range of motion and strength and her ability to perform repetitive or sustained tasks with her arms. She was unable to perform the activities required to maintain the household and she required housekeeping assistance. Although her husband mowed the lawn, Ms. Camilleri usually did the rest of the yard work and she was unable to do so because of her injuries.

[47]        Ms. Drummond recommended that Ms. Camilleri have paid help to assist her with her yard tasks. She also recommended an appropriate office chair for her home work station and occupational therapy intervention for an estimated two hours a month to help her as she underwent rehabilitation. The role of the therapist would be to monitor the home support, assist Ms. Camilleri with the demands of her rehabilitations, and other related issues.

[48]        Ms. Drummond assessed Ms. Camilleri at her home a second time on October 13, 2012. In her report to ICBC dated October 19, 2012, Ms. Drummond recommended that the housekeeping services and yard services continue to be provided. Ms. Drummond also commented on Ms. Camilleri’s stress level as a result of her finances due to her inability to work the number of hours she used to work. Ms. Drummond recommended that ICBC provide an advance payment to Ms. Camilleri so that she could manage her finances without the additional stress. She believed that decreasing Ms. Camilleri’s overall stress level would help facilitate her recovery. Ms. Drummond also noted that Ms. Camilleri was exercising in her home gym, walking, and following the program set up by her physiotherapist, Roy Gillespie. However, she observed that using the treadmill exacerbated Ms. Camilleri’s symptoms and she was considering an elliptical machine. Ms. Drummond thought that if an elliptical machine was appropriate, it might “possibly be funded” by ICBC.

[49]        Ms. Drummond assessed Ms. Camilleri again on December 29, 2012, in June 2013, and in March 2014. Ms. Camilleri had increased her work hours from April 1, 2013 until the end of October 2013. She told Ms. Drummond that she felt she had little choice. If she did not work the increased hours, the contract hours for her clients would be lost. However, working the increased hours resulted in Ms. Camilleri having more pain and she was struggling as her physical and emotional condition deteriorated. Ms. Drummond reported that Ms. Camilleri was focused on her rehabilitation and only working three to four days a week in her private practice and pacing her work as required. She was seeing her physiotherapist twice a month, doing an exercise program designed by the physiotherapist twice a week at the physiotherapy clinic and once a week in her home gym, she was attending massage therapy once a week, seeing a kinesiologist twice a week, had started seeing a chiropractor, and was hoping to see him once a week.

[50]        Despite Ms. Camilleri’s focused rehabilitation efforts, Ms. Drummond in her March 31, 2014 report to ICBC stated:

She continues to have pain and limitations on the left side of her neck into her shoulder, down her shoulder blade and down her left arm. She continues to have issues with the brachial plexus nerve injury that she has been diagnosed with. She cannot do any long term sitting and has to change her position often. She reports continuing to have difficulties with sleeping as she wakes when she turns over. She takes longer with dressing her upper extremities and has to be careful what she wears. She has to think about how she moves and has difficulty getting into vehicle[s] with lower seats. She cannot travel far and has been unable to go and see her children who live in Alberta. She also reports that her vision in her left eye has been impacted and she is not able to use trifocals due to the position that she has to hold her head in while wearing them. She is going to be referred to an ophthalmologist for this problem

Her situation is basically the same as it has been prior to her reduced working hours. She continues to be limited in what she can do and when she does more then she has more problems with fatigue and pain.

…

Creative Therapy Consultants has developed an assessment that allows a calculation of the percentages of the activities that an individual is able to perform. These activities are graded into light, medium and heavy activities. Ms. Camilleri reported her abilities in the following areas:

Light activities include tasks such as:

• folding and putting clothing away
• drying dishes
• cutting and chopping food
• dusting and sweeping the floors

Ms. Camilleri reported that she is able to perform 14.28% of light household activities.

Medium activities include tasks such as:

• using a washing machine and dryer
• washing dishes
• reaching into higher and lower cupboards
• cleaning toilets, sinks, baseboards
• washing windows
• washing floors
• making and stripping beds

Ms. Camilleri reported that she is able to perform 8.33% of medium activities.

Heavy activities include tasks such as:

• cleaning the refrigerator
• grocery shopping
• taking out garbage
• vacuuming
• cleaning the bathtub
• washing walls

Ms. Camilleri reported that she is able to perform 0% of heavy activities.

When all activities are marked on a graded scale Ms. Camilleri is able to successfully complete 5.16% of her housework. She reports that if she does any of the activities that involve repetitions, reaching with her arms or doing any physical activity daily then she has increased pain and is not able to do the work that she is trying to do. Ms. Camilleri reports that her husband and daughter do many of the activities around the house now as she is unable to manage them. She counts on the [hired] home maker to do the bulk of the heavy cleaning.

She has done no yard work and last fall hired teenagers to complete the work that needed to be done in her yard.

[51]        Ms. Drummond recommended that housekeeping services for Ms. Camilleri remain in place for a further six months and that yard work services also remain in place. She testified that her recommendations were only interim recommendations.

Dana Hornibrook

[52]        Ms. Hornibrook has been an occupational therapist for 28 years. She works with Spectrum Rehabilitation Services Inc. and was requested by Ms. Camilleri’s counsel to prepare a functional capacity evaluation. Ms. Camilleri attended the offices of Spectrum Rehabilitation Services Inc. on June 11 and 12, 2014 for a total of 8.5 hours. Test findings, along with clinical observation, indicated that Ms. Camilleri gave high effort and her reports of pain and disability were consistent.

[53]        The results of the testing included in Ms. Hornibrook’s report dated June 25, 2014 indicated the following:

[54]        With respect to sitting and standing tolerances, Ms. Hornibrook found:

Christina demonstrated the ability to sit for 120 minutes with many signs of physical discomfort and with the left arm support (at times using a pillow). Her tolerance for sitting reduced consistently after the initial period. She was able toremain on her feet for up to 80 minutes. It was during sustained standing that she reported increased lower back pain. Some breaks were taken in laying, after seated tasks (typing) and standing (tasks in spinal stooping).

[55]        She concluded her report by commenting on Ms. Camilleri’s job specific abilities and limitations:

The results of the assessment indicated that Christina is able to perform all component parts of her job, which is in the sedentary (Dietician – Dictionary of Occupational Titles code-077.117-010) and light strength categories (Dietician Consultant – Dictionary of Occupational Titles code-077.127-018). However, the testing results indicated that her tolerance for sustained activity and pain are the main limiting factors. She has had ergonomic modifications to her workstation, which has helped, especially regarding her chair comfort. She was able to sit for up to 120 minutes initially, but her tolerance reduced thereafter. She required rests in laying on several occasions during the assessment which is indicative of reduced activity tolerance and would make it difficult to sustain work if in the employ of a company, program or at an institution, but as she is currently working from a home office, she is able to take reclining rests after each private client. She is able to continue with her work as a private consultant as she is able to schedule her clients such that she can take a break in lying between clients. Her levels of pain and reduced activity and postural tolerances have made it difficult for Christina to sustain full-time work. Regardless of being able to maintain a part-time client load, she reports a significant reduction in her quality of life, including not being able to engage in active physical activity (i.e. skiing and triathlon training), being able to travel with her daughters as they compete in high level skiing events, gardening, cleaning her home, and helping her husband to cook and entertain.

[56]        On cross-examination, Ms. Hornibrook reiterated that Ms. Camilleri can perform the component functions of her job – sitting and taking and making notes – with pain and tolerance limitations. She is required to take breaks between clients, needs to lie down during the breaks, and therefore does not see as many clients as she would like to see.

Lydia Phillips

[57]        The defendant relies on the August 8, 2014 report of Lydia Phillips, an occupational therapist with Meridian Rehabilitation Consulting Inc. Ms. Phillips never saw or assessed Ms. Camilleri and stated that her report was not meant to provide an opinion about Ms. Camilleri’s residual functional capacity. Rather, as instructed by counsel for the defendant, her report was a critique of the methodology used and the conclusions reached by Ms. Hornibrook. Ms. Phillips concluded that Ms. Camilleri’s pain reporting may have been unreliable and that the functional capacity evaluation did not replicate Ms. Camilleri’s work.

[58]        Ms. Phillips’ report did not cause Ms. Hornibrook to change anything she stated in her report or at trial. This report has not convinced me that Ms. Camilleri can work anymore than she is currently working in her private practice.

Dr. Ryan Janicki

[59]        Ryan Janicki is a neurosurgeon who was asked by Ms. Camilleri’s counsel to provide a medical legal report. Dr. Janicki assessed Ms. Camilleri on May 21, 2014. In his report dated May 21, 2014, he commented on her physical examination:

Ms. Camilleri is very pleasant and co-operative throughout the examination today. She stands 5’6” and weighs 66.5-kg. She sits with good posture with her neck in neutral position throughout the history and physical examination. She does not tend to rotate her neck. She was tearful during the examination due to aggravation of her symptoms. She was hesitant transitioning between positions, tending to keep her left arm and neck still.

[60]        Dr. Janicki found that Ms. Camilleri’s range of motion in her neck was limited. Extension was limited by neck and left shoulder pain. Rotation would prove left arm symptoms and side flexion was quite limited by symptoms into her left arm, including pain and paresthesias. He stated:

She was exquisitely tender to palpation. Starting in the neck, she had obvious trigger points in the areas of the trapezius, levator scapula, and her rhomboid muscles on the left-hand side. This would cause intense pain at that location as well as symptoms down her left arm. Gentle palpation of the left anterior triangle and scalene muscles caused severe pain as well as symptoms down her left arm. She was tender within the left deltopectoral groove, as well as the medial aspect of the arm. Palpation of the left ulnar nerve in the cubital tunnel was hypersensitive and caused symptoms both up and down the arm.

[61]        At trial, Dr. Janicki elaborated on Ms. Camilleri’s complaints of pain on palpation. He testified that he only needed to touch her very lightly on her arm to produce pain symptoms and bring her to tears. He noted that the results of similar tests by other medical experts had also brought Ms. Camilleri to tears. Dr. Janicki diagnosed Ms. Camilleri as suffering from cervicogenic headaches or headaches caused by something in the neck, neck and upper back soft tissue injuries, and “[l]ikely left brachial plexus traction injury” that were all caused by the “motor vehicle accident acceleration/deceleration”. She has no prior history of neck or arm symptoms but, since the accident, has experienced persistent headaches, neck and upper thoracic pain, as well as left arm pain and paresthesia, or numbness. She has shown no improvement and her symptoms are chronic and disabling. She needs to take frequent rest breaks to manage her symptoms and avoid aggravating activities.

Roy Gillespie

[62]        Mr. Gillespie has been a physiotherapist in Kelowna for 20 years. He has a Master’s degree in biomechanics from Indiana State University, a doctorate of science degree in physiotherapy from Andrews University, Michigan, and he is presently working toward a PhD in physiotherapy from Notre Dame University. He works at Pinnacle Physiotherapy Clinic which also has a registered massage therapist and a kinesiologist. Before he met Ms. Camilleri, Mr. Gillespie had treated [redacted].

[63]        Mr. Gillespie’s objective findings on examination as to the causes for Ms. Camilleri’s pain symptoms were consistent with the findings of the other medical experts. Her left arm pain is reproduced with certain neck movements. She complains about a burning or electrical like feeling that extends down her arm.

[64]        Mr. Gillespie’s evidence is important because Ms. Camilleri has carried out all of his recommendations regarding exercise. He attended at her home gym and helped her set up an exercise program which she continues to follow. She has had massage therapy treatments, she has tried taping, acupuncture, and different exercises. All of the various treatments and exercise have provided only short-term relief, and her symptoms have remained consistent or, in some ways, have worsened. As a result of the main symptoms of pain in her neck and mid thoracic or upper back, she has compensated and developed tightness in the lower parts of her body, such as tightness with thoracic and hip rotation.

[65]        A treatment that has not been explored is a new pain clinic in Kelowna that has a wait list of a couple of months. There is also what Mr. Gillespie referred to as “our old pain clinic” which has only one person working part-time and a wait list of three years.

[66]        As Mr. Gillespie succinctly put it when commenting on Ms. Camilleri’s overall treatment regime:  there is a distinction between healing and providing comfort and, in her case, treatment has provided more comfort than healing.

Dr. Rehan Dost

[67]        Dr. Dost is a neurologist who examined Ms. Camilleri, at the request of counsel for the defendant, on April 22, 2014 and prepared a report the same date. He noted:

Ongoing complaints of diffuse cervical, left shoulder, arm pain with sensory symptoms, thoracolumbar pain, headache, sleep disruption, psychological issues, cognitive difficulty, blurred vision, alteration of pre-existing tinnitus and hearing loss with lightheadedness.

[68]        While Dr. Dost disagrees that Ms. Camilleri has a brachial plexus injury, he agrees that she suffers from chronic myofascial pain syndrome as a result of the accident.

[69]        Dr. Dost explained that acute myofascial pain is a collection of symptoms and signs that usually arise when there is an insult or sudden loading of the muscles and tendons. The hallmarks of the symptoms are taut bands of muscles within the musculoskeletal system. When you press on them, it causes symptoms away from the site of the injury. This is a myofascial trigger point. Along with musculoskeletal symptoms, there are also neurological symptoms. These include complaints of numbness, tingling, sharp shooting-type pain, or electric or burning pain. There are also autonomic systems. For example, a hand may be colder or there may be swelling or colour change. These symptoms are all descriptive of myofascial pain. The majority of patients who have acute myofascial pain recover. However, there are some 10-15 percent of patients who do not recover. Their symptoms persist and become chronic. There are several factors for why or how it can become chronic, including the fact that the muscles do not heal, the way in which pain is perceived within the spinal cord changes, and/or the impact of psychological issues.

[70]        Dr. Dost has no doubt that Ms. Camilleri’s myofascial pain was caused by the motor vehicle accident. He also has no doubt that she now suffers from chronic myofascial pain syndrome and it is highly unlikely that she will recover spontaneously. Rather, the longer she suffers from pain, the longer it will take to treat. However, he does not suggest that the chronic pain will somehow resolve or go away at any point, but only that the symptoms can be “mitigated” in two main ways:  firstly, by referring Ms. Camilleri to Dr. Yu, the physiatrist, to deal with her physical musculoskeletal complaints; and secondly, by referring her to a psychiatrist to deal with the underlying psychological component of her pain. He noted Ms. Camilleri’s mood has changed – as it naturally would for anyone who constantly deals with debilitating pain. The psychological consequences resulting from chronic pain should be addressed.

Other Treatment Providers

[71]        In 2012, Ms. Camilleri saw Dr. Paul Etheridge, who practices in the field of chronic pain. He offered cervical medial branch blocks which are cortisone injections into the facet joint at the base of her neck. She told him she wanted to consider other options before making a decision. She also tried exercises that Dr. Etheridge recommended but found they aggravated her symptoms and, after the exercises were reviewed by her physiotherapist, Mr. Gillespie, she discontinued those exercises.

[72]        Ms. Camilleri also saw Dr. Shawn McCann who offered Botox injections into the brachial plexus, or what Dr. Janicki described in his report as “myogenic thoracic outlet”. The injections would cost $300 to $400 and be needed every three months for the rest of her life. She was also offered a left submuscular ulnar nerve transposition by Dr. David Williamson.

[73]        She discussed all of these various treatment options with Dr. Janicki and with Dr. Sebulsky and it was decided that none of these options would deal with all of her pain complaints, none were permanent long-term solutions, and there was a risk that the injections or surgeries would make her worse.

DAMAGES

[74]        As discussed above, Ms. Camilleri now suffers from chronic myofascial pain as a result of the accident. She is unlikely to recover and, at best, she may mitigate some of her symptoms. I can do no better than to summarize her symptoms as set out in Dr. Dost’s report. She complains of:

1. Constant cervical or neck pain that radiates to the interscapular region, left shoulder and diffusely down her arm to her third and fifth fingers;
2. Constant thoracolumbar or back pain, without radicular symptoms, but with numbness and tingling;
3. Headaches almost daily. About four days a week she has a dull headache, occipital pressure, and some nausea. Three days a week her headaches are quite severe and radiate to her left eye with pressure, pounding, nausea, and light and noise sensitivity;
4. Sleep disruption secondary to pain;
5. Altered mood;
6. Light-headedness (a faint-like sensation that occurs early in the morning);
7. Increased tinnitus;
8. Increased blurred vision requiring stronger prescription glasses; and
9. Difficulties with memory, processing speed, multitasking, attention and recall.

[75]        Her symptoms are not likely to improve. The evidence suggests that she can only learn to cope with her symptoms with psychiatric or psychological counselling, a physiatrist to deal with the physical complaints, and possibly a pain clinic to help her deal with her pain.

[76]        Ms. Camilleri’s life has been affected dramatically and profoundly by the accident. Her symptoms have been a tremendous challenge for her both emotionally and physically. She was a very high energy person who was fully committed to her family and to her work. She was a leader in her field. I could not help but have the impression that Ms. Camilleri was so committed to her work and patients at the eating disorder clinic that she was more concerned about helping the patients and the community rather than making money. She could easily have made more money in private practice but she was committed to helping those who could not afford private care. She was so committed to her work that she increased her hours of work after the accident so that her patients would continue to have treatment despite the toll it has taken on her physical and emotional health.

[77]        Ms. Camilleri said that it has been emotionally challenging for her to be forced to step back into what she considers a lesser role in the treatment of the eating disordered. She enjoyed her volunteer positions, she enjoyed teaching, she enjoyed the continuing education opportunities with other health professionals, and she enjoyed research. Those are things she can no longer enjoy.

[78]        She was also a physically active person who enjoying skiing with her family, running, cycling, water-skiing, gardening, and she enjoyed sharing many of those activities with her husband and daughters. Those are things she can no longer enjoy. She no longer even travels.

[79]        I have no reason to doubt Ms. Camilleri’s evidence. There is no suggestion that she is anything other than a credible, straightforward witness who keeps doing her best in situations where others likely would have given up. But she has been forced to give up many of the things in life that she enjoyed.

Position of the Plaintiff

[80]        Ms. Camilleri seeks the following damages:

[81]        Ms. Camilleri provided only two authorities to the court: Stone v. Ellerman, 2007 BCSC 969, rev’d 2009 BCCA 294 and Kwong v. Leonard, 2012 BCSC 1818. She argues that Kwong has similar facts and that Stone contains an analysis of the applicable law relating to future loss.

Position of the Defendant

[82]        The defendant contends that the measure of damages should be as follows:

Non-Pecuniary Damages

[83]        The defendant succinctly set out the law relating to the assessment of non-pecuniary damages from Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46 and I repeat her written submission in this regard:

An award of damages for non-pecuniary loss is meant to provide solace to a plaintiff and to ameliorate his or her condition or situation. The award is to compensate the plaintiff for, among other things, pain, suffering, disability, inconvenience, and loss of enjoyment of life. Under the well-established “functional approach” to this head of damage, the focus is not on the injury alone but must also include the following non-exhaustive (and potentially overlapping) factors:

1. age of the plaintiff;
2. nature of the injury;
3. severity and duration of pain;
4. disability;
5. emotional suffering;
6. loss or impairment of life;
7. impairment of family, marital, and social relationships;
8. impairment of physical or mental abilities; and
9. loss of lifestyle.

[84]        In Stone, the plaintiff was 19 years old on the date of the motor vehicle accident. She was in excellent physical condition and enjoyed strenuous physical activity. As a result of the accident, she suffered headaches, pain in her neck and upper body between her shoulder blades, and pain in her lower body from soft tissue injuries relating to her right sacroiliac joint and pelvic malalignment. She suffered chronic pain with little or no signs of the pain improving. Despite being in pain, through “inherent resources or will-power”, the plaintiff increased her hours of work and, at times, worked two jobs. The time away from work she spent primarily “simply getting ready to go back to work”. Because of her pain, she was unable to tolerate some jobs, including hairdressing for which she trained. Because of the accident, she could no longer participate in strenuous physical activity and was reduced to selective walking and exercising, and other low impact activities. She needed assistance for heavier household chores. At paragraph 29, the court found that she was:

[C]onsigned to a routine that involve[d] working in spite of pain, suffering reduced energy, putting up with severely interrupted sleep and accepting her inability to participate in any rigorous activities. None of these things is less than significant. And having the joy of honest work reduced or destroyed by chronic pain is an enormous loss. The plaintiff was awarded $100,000 in non-pecuniary damages.

[85]        In Kwong, the plaintiff was 34 years old at the time of the motor vehicle accident. More than four and a half years following the accident, she continued to suffer from myofascial pain syndrome, cervicogenic headaches, pain in her neck, right shoulder and upper back, numbness and tingling in her right arm, wrist, hand, and two fingers, poor sleep, and fatigue. Her condition had plateaued and her symptoms waxed and waned. She lost enjoyment from working as a pharmacist. She was no longer able to perform certain household chores or participate in many physical activities she enjoyed before the accident. Treatment included numerous physiotherapy and personal training sessions, and five invasive lidocaine injections for neck and upper back that provided only temporary relief. The plaintiff was awarded $75,000 for non-pecuniary damages.

[86]        The defendant relies on Harris v. Zabaras, 2010 BCSC 97 where the plaintiff was awarded $50,000 in non-pecuniary damages. She also relies on ten cases summarized by Mr. Justice Schultes at para. 76 of the decision – five cases for the plaintiff and five cases for the defendant – showing a range of non-pecuniary damages from $15,000 to $90,000. One of those decisions that the defendant contends is highly relevant is Hanna v. M.D. Realty Canada Inc. (1996), 24 B.C.L.R. (3d) 185 (S.C.) where the plaintiff was awarded $40,000 for non-pecuniary damages (prior to a deduction for failure to mitigate). The defendant also relies on Smith v. Pang (1993), 83 B.C.L.R. (2d) 298 (S.C.), where the non-pecuniary damage award was $50,000, and Pisani v. Pearce, 2012 BCSC 1118 for a non-pecuniary award in similar circumstances at $80,000 (which the defendant contends is a reference point at the high end of the spectrum).

[87]        In my view, the impact of the motor vehicle accident on Ms. Camilleri and her life is much more serious than the plaintiffs in Harris and Pisani. In Stone, the plaintiff was awarded $100,000 for non-pecuniary damages.

[88]        I conclude that an appropriate award in this case for non-pecuniary damages is $90,000.

Income Loss Generally

[89]        There is little doubt that, prior to the collision of July 24, 2011, Ms. Camilleri had the opportunity, inclination, and incentive to work. She had no shortage of work, she had worked almost continuously in the same field for the last 30 years since graduating from university, she took very little time off work after giving birth to each of her two children because she was and remains devoted to her work, and she was her family’s only income-earner due to her husband’s permanent partial disability. However, Ms. Camilleri has now joined her husband as a person with a permanent partial disability. Her chronic myofascial pain syndrome is likely not amenable to recovery and that has impacted her ability to earn income since the accident and will continue into the future.

Past Wage Loss

[90]        Ms. Camilleri missed the month of May from CMHA in 2012 and was not paid during this absence. Based on the average of what she was paid the month before and after the accident, she claims a loss of not less than $2,266.44.

[91]        The defendant, on the other hand, contends that Ms. Camilleri’s average gross income from CMHA during all other months in 2012 was $2,830.70. Taking into a tax rate of 15 or 22 percent, she has suffered a past income loss of either $2,207.96 or $2,406.12. The average of these two figures is $2,307. I accept an average of the defendant’s submissions on past income loss from CMHA.

[92]        One of the largest areas of disagreement is Ms. Camilleri’s claim for income loss from her private practice.

[93]        After October 31, 2013, Ms. Camilleri no longer had a job two days a week at CMHA. She argues that, but for her injuries, she could have worked two additional days at her private practice. Because of her injuries, she says that she saw only 10-15 clients each week, when otherwise, she could have seen 20-25 clients each week. She claims that for the ten months from November 1, 2013 to September 1, 2014, her gross past income loss should be calculated at $60,000 (10 months x 40 clients x $150/client), subject to income tax deductions. She also contends that her office expense structure as set out in her income tax returns is largely fixed, so that any additional patients would not increase her overhead expenses. Accordingly, her total claim for past income loss is a sum of $62,266.44.

[94]        Ms. Camilleri has reduced her number of private practice hours because of headaches, migraine headaches, nausea, pain in her neck, left shoulder, arm, and hand. She has also reduced her hours of work in order to deal with her rehabilitation, including chiropractic and physiotherapy treatments, and, unlike before the accident, she no longer takes time away from work for her daughters’ various skiing events or for vacation.

[95]        Ms. Camilleri provided details of the number of “private practice” hours she worked each month from January 2008 through to June 2014. Before the accident and since the accident, she charged some student clients $75/hour, but the number of those clients were few. In the six months before the accident, she charged the majority of her clients $90 or $100/hour, although in June 2011 she charged two of her clients $150/hour. By the end of 2013, there were some months when she charged as many as 14 out of 46 clients $150/hour, although the majority were charged only $100/hour. That may be explained in part by the length of the clients’ treatment. Many clients are committed to seeing Ms. Camilleri for anywhere from one to three years so the number of new clients that she takes on is only one to two a month, if any. She presently carries a caseload of 45 “active files” or clients.

[96]        The defendant’s argument is that, apart from her lost wages from CMHA, Ms. Camilleri suffered no past income loss from her private practice, but rather has earned more income in that practice since the accident.

[97]        However, the fact that she has more income since the accident is due, in part, to the fact that she has increased her private practice billing rate to $150/ hour for new clients, she is no longer earning the $32/hour she earned at CMHA, and she has taken no vacations since the accident but instead works as much as she can in her private practice.

[98]        I accept that Ms. Camilleri, but for the accident, could have seen 20-25 patients each week. The defendant points out that she charged most of her clients $100/hour; not $150/hour. I think the appropriate figure to use is $109/hour which was her average billing rate for the first six months in 2014. Her private practice wage loss is then $43,600. Added to that sum is $2,307 for her lost wages from CMHA for a total past wage loss of $45,907.

Loss of Future Earning Capacity

[99]        Ms. Camilleri advanced a claim for lost future income stream totalling $618,552. She argues that there is a substantial possibility that she will lose income in the future as a result of the negligence of the defendant. The evidence includes the following:

1. She has an exemplary work history;
2. She has a permanent partial disability;
3. She testified that she cannot work more than the three days a week that she now works in her private practice and that, but for her disability, she would see an additional ten patients a week;
4. Dr. Smith testified that her services are in demand and his patients would be on a wait list to be able to see her as a clinician;
5. Dr. Sebulsky stated that she believes Ms. Camilleri will not be able to increase her caseload in the foreseeable future; and
6. Ms. Hornibrook testified that Ms. Camilleri can perform the individual components of activities of sedentary employment but that she is limited by her tolerance to static postures. It is very difficult for her to sustain her current employment on a full-time basis because she requires repeated breaks and rests lying down in between clients. She therefore does not see as many clients as she otherwise would. She would wear out if she did not take these breaks.

[100]     Ms. Camilleri bases her claim for future loss of earnings as (lost 40 clients/month x 12 months) x $150 = $72,000 per year. Applying the actuarial multiplier provided by the defendant’s economist, Douglas Hildebrand, the present value, to age 70, of her lost future income stream is ($1,000/year x 72) x ($8,591) per $1,000 = $618,552.

[101]     The defendant argues that Ms. Camilleri continues to be able to perform all the requisite functions of her job, her claim for loss of income earning capacity is not supported by the evidence, she merely speculates there is a market for her services, and that she could access that market in greater depth than she has in the last 22 years. Ms. Camilleri’s income has also been increasing, despite the accident. Her gross income for 2010 was $64,172, the year of the accident, in 2011, it was $71,340, and in 2012 and 2013 following the accident, her gross income has been $75,867, and $81,260, respectively.

[102]     In my view, Dr. Smith provided the evidence the defendant says is lacking, as did Ms. Camilleri. Dr. Smith testified that Ms. Camilleri is an outstanding clinician (she is not simply a dietician) and, at times, he and his patients have waited longer for treatment in order to see her. He also testified that there is a considerable demand in the Okanagan for the services that Ms. Camilleri provides in her private practice. She is the only clinician that has made eating disorders her sole focus and, by conservative estimates, at least two to five percent of young women struggle with eating disorders. He said that the growing Okanagan population is anywhere between a quarter to a half million people and Ms. Camilleri can draw from eating disordered patients across the entire Okanagan.

[103]     Ms. Camilleri testified that the greatest sources of her referrals are from doctors and that there is a wait list for referrals by doctors for private services. For youth, the wait list is between three to six months and, for adults, the wait list is between six months to a year. In cross-examination, Ms. Camilleri testified that, at various times before the accident, she had considered leaving CMHA where she was paid $32/hour in order to pursue her private practice.

[104]      Before the accident, she had planned to develop a website for clients so that she would not have to repeat the same information for each client. She has recently completed the website and plans to release her website to her network of health professionals. She also plans to expand her eating disorder practice by hiring and training others, including a team of medical professionals, so that what she could earn would be based not only solely on her own hourly counselling fees.

[105]     I am satisfied from all of the evidence that Ms. Camilleri has proven a real and substantial possibility that her earning capacity has been impaired. She is no longer able to see all of the clients she would like to see in her private practice because of her pain symptoms and the need to lay down between seeing clients:  see Perren v. Lalari, 2010 BCCA 140 at para. 32.

[106]     I find, however, that Ms. Camilleri will likely always have a lower billing rate for clients such as students who cannot afford her current $150/hour billing rate. I also believe that like most people, as Ms. Camilleri gets older, she will reduce the number of hours she works. I also believe that Ms. Camilleri like most people will not work 12 months of the year. Like most people, she will take reasonable time off work for statutory holidays and vacation.

[107]     It is not loss of earnings, but loss of earning capacity for which Ms. Camilleri must be compensated. In this case, an earnings approach is appropriate for quantifying that loss. I conclude that an award of $475,000 for future loss of earning capacity is appropriate.

Loss of Housekeeping Capacity

[108]     Ms. Camilleri seeks an award of $50,000 for loss of housekeeping capacity, but provided no case authority or indication of how the figure of $50,000 was arrived at. Ms. Camilleri also seeks an award for cost of future care for yard work, but did not suggest what that award should be. The defendant argues that she has failed to establish a medical justification for any future care costs.

[109]     The law relating to loss of housekeeping and yard work capacity is summarized by Madam Justice Gray in Gallina v. Honda Canada Finance Inc., 2014 BCSC 974 at paras. 135-138. As explained in O’Connell (Litigation guardian of) v. Yung, 2012 BCCA 57 and recently affirmed in Westbroek v. Brizuela, 2014 BCCA 48 at para. 74:

In O’Connell v. Yung, 2012 BCCA 57 at paras. 59-68, this Court clarified that homemaking costs, properly considered, are awarded for loss of capacity and are distinct from possible future cost of care claims. An award ordered for homemaking is for the value of the work that would have been done by the plaintiff but which he or she is incapable of performing because of the injuries at issue.  The plaintiff has lost an asset: his or her ability to perform household tasks that would have been of value to him or herself as well as others in the family unit but for the accident. This is different from future care costs where what is being compensated is the value of services that are reasonably expected to be rendered to the plaintiff rather than by the plaintiff.

[Emphasis in the original].

[110]     Ms. Camilleri is unable to do any gardening or heavy housework or activities. The heavy household activities include vacuuming, cleaning the bathtub, the floors, walls, cupboards, refrigerator, taking out the garbage, and grocery shopping. It is unlikely she will be able to attend to those matters in the future. She and her husband live in a three level, 4,300 square foot home on a third of an acre with flower beds, grassed areas, trees, and shrubs.

[111]     The defendant argues that [redacted]. However, the evidence is that he suffers from a degenerative disease, which means that he may not always be able to mow the lawn, and mowing the lawn is but one small part of the gardening work required for the yard. The fact that housework or home maintenance may be done by another family member does not disentitle an award under this head of damages.

[112]     In Ms. Drummond’s report of March 31, 2014 to ICBC, she noted that, when all of the household activities are marked on a graded scale, Ms. Camilleri is able to complete only 5.6 percent of her housework and she has done no yard work (because she is unable to do yard work). Ms. Camilleri engages landscaping or horticultural services to perform her yard work. Ms. Drummond noted that yard work would cost an average of $442.12, plus H.S.T. a month, excluding mowing the lawn, over the course of a year; or approximately $5,305 a year, excluding taxes.

[113]     Ms. Camilleri presently has two man-hours or person-hours of housework each week, but is charged for three hours each week, including 30 minutes of travel time one way, or one hour one way from Kelowna to Lake Country, because there are no housekeeping or gardening services in or near Lake Country. Based on $25/hour for housekeeping services of three hours a week, including travel time, this cost amounts to $3,900 a year, for a total of approximately $9,205 a year for housework and yard work.

[114]     While the defendant argues that there is no evidence about what current housekeeping is required by Ms. Camilleri, the evidence of Ms. Drummond and Ms. Hornibrook remains pertinent because Ms. Camilleri’s condition has not improved since their reports.

[115]     I prefer to award the loss of homemaking capacity and yard work capacity under the same head of damages. There may come a time when Ms. Camilleri and her husband may move from their large home and yard, but Ms. Camilleri will continue to suffer from loss of homemaking capacity. I find an award for loss of homemaking and yard capacity at $45,000 to be appropriate.

Special Damages

[116]     Special damages are agreed at $9,000.

Future Care Costs

[117]     In closing argument, Ms. Camilleri failed to advance a claim for future care costs, even though the evidence is that, at present and in the future, she will continue with her rehabilitation, including massage therapy, seeing her chiropractor weekly, and physiotherapy as needed.

[118]     While that may have been an oversight, there was no evidence given specifically relating to the quantity or cost of those treatments. The agreed special damages amount was not itemized and is of little assistance to this assessment. Ms. Camilleri’s 2012 tax return includes a claim for a YMCA swim pass of $49.50 and an amount for massage of $152.40.

[119]     There is little doubt that Ms. Camilleri will continue to pursue the rehabilitation treatments that are prescribed for her. However, what those treatments are and what they will cost have been left to my estimation. For cost of future care, I award Ms. Camilleri $5,000.

CONCLUSION

[120]     In summary, Ms. Camilleri is awarded the following damages:

[121]     Ms. Camilleri is also entitled to her taxable costs and disbursements.

“Loo J.”

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The Honourable Madam Justice Loo