IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150529

Docket: M131774

Registry:
New Westminster

Between:

Jaime Leanne
Wagner

Plaintiff

And

Jerry Newbery,
Shelley Sue Maloney and

Michael Lawrence
Maloney

Defendants

Before:
The Honourable Mr. Justice Blok

Reasons for Judgment

I.              
Introduction

[1]           
Jaime Wagner was injured in two car accidents, the first occurring on
December 17, 2008 and the second on April 28, 2009.

[2]           
Liability is admitted.  The primary dispute between the parties is
whether the plaintiff suffers from (1) post-traumatic stress disorder (“PTSD”),
(2) an anxiety disorder, or (3) major depression, or all three, and if so, the
extent to which the two car accidents caused or contributed to these
conditions.  These issues required a close examination of the plaintiff’s life
before and after the car accidents as well as an examination of her accident-related
complaints.

II.            
Evidence

A.           
Jaime Wagner

[3]           
At the time of trial Ms. Wagner was 25 years old.  She lives with her
boyfriend Kyle Dembowski and her five year old son, Daxtyn, who was born in May
2009.

[4]           
Ms. Wagner graduated from high school in Maple Ridge in 2006.  At
the time of graduation she received two awards and two bursaries.  She had a
mix of A and B grades and she made the honour roll.  Ms. Wagner said that
her general health was good and that she had headaches only “on occasion”.  She
said she was social, popular and had lots of friends.  She was a member of a competitive
cheerleading group, which required a high level of physical fitness.

[5]           
When asked about her pre-accident family life, she said her parents
divorced when she was four.  She said that she was “emotional” as a result of
the resulting conflict between her parents over parenting time.  She has no
current relationship with her father as he has drug problems.

[6]           
There was an incident of inappropriate touching that occurred with her
when she was 14 or 15 years old.  As a result of this incident Ms. Wagner
went to live with her sister in Edmonton for a month and this incident “caused
a bit of tension between me and my mom”.  Ms. Wagner said that she took no
formal counselling but saw the counsellor at the high school and that
counsellor helped her deal with the incident.

[7]           
After high school, Ms. Wagner enrolled in a dental receptionist
course at a local private college.  Her mother had encouraged her to seek
employment in a health-related field.  Ms. Wagner said that she preferred to
be a social worker or counsellor.  She attended the college from September 2006
to June 2007 and achieved grades in the 80% range.

[8]           
She secured work at a dental office, where she worked from March 2007 to
January 2008.  She came into conflict with the office manager, and was off work
one week due to that conflict.  She quit that job.  Ms. Wagner then went
to work for a plumbing supply company as a receptionist. Although Ms. Wagner
said she worked there “under a year”, other evidence suggests it must have been
less than six months.  She left that employment because she was sick one day
and asked to go home, and when she went home she was fired for being absent.

[9]           
Ms. Wagner then went back to work at a restaurant that had employed
her when she was in high school.  This job appears to have started in the fall
of 2008.  She made $8.50 an hour and $20 to $25 in tips during the lunchtime
shifts.  During the same time she was babysitting her niece for her sister. 
She variously described this as being “a few hours each week”, “three to four
hours, a couple of times each week”, and “$25 to $30 each time”.

[10]       
Ms. Wagner said that during the period 2006 to 2008 her general
health was good and her emotional health was good as well.

[11]       
On October 8, 2008 Ms. Wagner learned she was pregnant.  She was
“super excited” about it.  However, she broke up with the baby’s father in
early November 2008 because “he cheated on me”.  At that point she was “scared
about being pregnant and alone” but had the support of family and friends.  She
then got a new boyfriend, Tyler, who was excited to be part of things.

[12]       
Ms. Wagner said that her pregnancy put her career plans on hold.  Her
plan was to work and go back to school to become a social worker, perhaps doing
both at the same time as her sister had done successfully in her training as a
legal assistant.

[13]       
Ms. Wagner was in the care of a maternity doctor as of November 4,
2008.

[14]       
The first car accident occurred on December 17, 2008.  Ms. Wagner
was with her friend Jessica, driving south on 216th Street in Maple Ridge.  Ms. Wagner
stopped at a traffic light at Lougheed Highway.  When the light turned green
she proceeded forward but a vehicle coming to the left did not stop, possibly
because of the snowy conditions.  The other vehicle clipped the front of Ms. Wagner’s
Mazda Precidia and spun her car so that it ended up facing west on Lougheed Highway.

[15]       
Ms. Wagner said that the force of the accident “swayed my body to
the right and then back to the left”.  She said her Mazda was totalled in the
accident.

[16]       
Both drivers proceeded to a nearby gas station.  Ms. Wagner exited her
car and looked at the damage.  She told the other driver that she had to call
her father.  She went back to her car and called her father, who arrived
sometime after.

[17]       
Ms. Wagner said that she was “in shock.  I was really concerned
about my baby”.  She wanted to go to the hospital, so she took her friend home
and proceeded to the hospital.  Ms. Wagner said “I was terrified that my
baby didn’t make it”.  At the hospital she waited three hours and, in her
words, “I panicked while I waited”.  When a doctor examined her she insisted
that an ultrasound be done.  At first they couldn’t find a heartbeat and she
thought “that was it”.  Eventually they found a heartbeat.  After she returned
home she could not sleep because she “was super afraid the baby wouldn’t make
it”.

[18]       
The next morning Ms. Wagner was sore in her neck, in her back (top
to bottom) and her left hip was aching.

[19]       
She saw her family doctor on December 19, 2008.  She said she was “sore
and scared”.  She said that her doctor did not examine her but instead
recommended massage therapy and that she take time off work.  Ms. Wagner
was not satisfied about the safety of her unborn baby so her doctor suggested
that she have an ultrasound.  She saw her doctor again on December 30, 2008. 
On that day her lower back was sore, particularly in her tailbone area, her
neck was very stiff and her left hip was aching.  Again, Ms. Wagner said,
the doctor did not examine her.

[20]       
Ms. Wagner did have an ultrasound procedure and it confirmed that
the baby had a good heartbeat and was okay.

[21]       
When she saw her doctor on January 8, 2009 her neck and back were still
sore, but she was not sure if her hip was still bothering her as she was
“walking okay”.

[22]       
Ms. Wagner saw her maternity doctor on March 3, March 30 and April
28, 2009.  Everything was fine with her pregnancy.  On the last visit the
doctor said he would see her on her due date, June 12, 2009.

[23]       
As for post-accident treatment, she underwent ten massage therapy
treatments, mostly for her neck and back.  Ms. Wagner said that she was
still “pretty scared and nervous” about her pregnancy.  She did not sleep well
for at least a month as she was worried and uncomfortable.  The massage therapy
treatments provided temporary relief only.

[24]       
Ms. Wagner missed about one month of work at the restaurant.  She
returned to work at the end of January 2009.  On her return to work her boss
changed her duties to light duties so that there was no cleaning or stocking
work.  Ms. Wagner said that she felt ashamed that she was unable to keep
up with all of her duties.

[25]       
Ms. Wagner moved into her own residence, a basement suite, in
February 2009.  She did not have a vehicle of her own at that point but
occasionally took her mother’s car.  She was nervous both as a passenger and a
driver, saying that it took her a while to get back “into the routine”.

[26]       
The second car accident occurred on April 28, 2009.  By that point she
was seven months pregnant.  She was proceeding westbound on Dewdney Trunk Road
when she stopped at a crosswalk for a pedestrian.  She had her right foot on
the brake and her left foot on a foot pad.  Her vehicle was then hit from
behind.  Her stomach hit the steering wheel and her left foot got jammed
backwards.  She said it was a “really hard impact”.

[27]       
Her boyfriend Tyler exited from the passenger side, yelling.  The
pedestrian got in the passenger seat and told her that an ambulance was on the
way.  She started getting stomach pains and felt the need to get out of the
car, so she exited the car, walked to the side of the roadway and sat on the
gravel.  There, she felt strange, sharp pains.  She thought she was in labour.

[28]       
Ms. Wagner was taken by ambulance to Ridge Meadows Hospital (“RMH”),
where she was admitted to a maternity ward and seen by a maternity doctor.  After
the doctor examined her he told her she was three centimetres dilated and going
into labour.  She felt she was having contractions.  The doctor said that she
was too early and so she would be transferred to Royal Columbian Hospital (“RCH”). 
Ms. Wagner said she felt “terrified” and “really alone”.  At RCH she was put
on a monitor and on an intravenous line with medication designed to delay
labour.  She was concerned that her baby was not going to make it.  She was in
RCH for three or four days.

[29]       
Although Ms. Wagner said her focus was on her “stomach”, at RCH she
was really stiff in her neck and lower back.  She was put on bed rest and not
allowed up.

[30]       
Ms. Wagner said that she had an “emotional breakdown” the next
morning over the matter of having a shower.  She was allowed to have a shower
so long as her mother was there to watch out for her.  Ms. Wagner said
that she found walking sore due to pain in her back and in the front of her
left hip.

[31]       
Ms. Wagner was discharged from RCH back to RMH.  She said her
contractions settled down and became farther apart.  She stayed at RMH for an
additional night or two on bed rest.

[32]       
Ms. Wagner’s son was born about two weeks after the accident.  In
the time between the second accident and delivery Ms. Wagner stayed at her
mother’s and was on bed rest, on doctor’s orders.  She was very stiff and sore,
mostly in her back and neck.  She then moved back to her basement suite, but
did not do any chores as these were all done by her mother, grandmother and
boyfriend.

[33]       
Ms. Wagner went into labour the evening before the delivery day.  She
went to RMH and was sent home initially, but returned to RMH after her water
broke.

[34]       
At the birth her baby was taken into another room, evidently because of
concerns on the part of medical staff.  In the words of Ms. Wagner, “I
didn’t know he was in the next room fighting for his life”.  A nurse came into
her room and told her to come to say goodbye to her baby as it did not look
very good for him.  When she saw him, “he was really blue, transparent, ugly,
not looking normal, wires everywhere, and they didn’t tell me anything”.  A
nurse then told her that she was to pack up as an air ambulance was on the way
to take the two of them to Spokane, Washington.  Later a nurse came in and said
that Lions Gate Hospital (“LGH”) had a bed available, so she and her baby
(subsequently named Daxtyn) were transported by ambulance to LGH.

[35]       
Daxtyn was in LGH for five days.  Ms. Wagner was never formally
admitted as a patient, although they let her stay in one of the rooms.  At one
point she was told that Daxtyn had been resuscitated.  Later they said that he
had “a hole in his lung” and that he was “quite jaundiced”.

[36]       
Daxtyn was discharged from LGH and transferred back to RMH.  He was by
that point gaining a bit of weight and eating through a feeding tube.  She was
told that the hole in his lung was closing.  He was in RMH for two days.

[37]       
Over the next several weeks her mother and grandmother stayed with her,
helping with feeding, diaper changing and laundry.  Ms. Wagner tried her
best to breastfeed but it was difficult for her to sit in a position long
enough to carry out a feeding because it hurt her neck to look down.  Instead
she used a breast pump and her mother would feed the baby.

[38]       
Ms. Wagner’s mother and grandmother moved out after about a month
although they still came by to help.

[39]       
At a doctor’s visit on June 22, 2009 she told her physician she was
experiencing a “cracking” in her left hip when extending her left leg.  She had
difficulty walking after it cracked and she started to favour her left side by
putting more weight on her right.  She also reported difficulties breastfeeding
as well as pain in her low back and neck.

[40]       
She broke up with her boyfriend Tyler in June 2009.  She said that she
“started pushing him away, lashing out because of my pain and frustration, and
being overwhelmed as a new mother”.

[41]       
By July 9, 2009 she told her doctor that she had given up
breastfeeding.  She had the same pains as before but now with headaches, which Ms. Wagner
described as “migraines”.  He recommended physiotherapy and massage, but she
did not undertake these therapies because she had no money.

[42]       
By August 5, 2009 she had the same issues but her emotional state was,
in her words, “going on a downward spiral”.  She felt she was not being a good
mother to her baby.  From May to December 2009 she was trying to be more active
but walks made her hip sore.

[43]       
In early 2010 she was still feeling “pretty low” emotionally and
continued to feel she was not doing a good job as a mother.  She felt
overwhelmed.  She said “my whole life felt like it was out of my control,
nothing I did made it better, I wanted to be a good mom, a happy mom, but I
wasn’t”.

[44]       
Around April 2010 she was given a referral to a kinesiologist, who put Ms. Wagner
through “rigorous workouts”, including speed walking, sit-ups and stretches. 
She went for a few weeks, but found that it hurt a lot and she could not keep
up.  She found her level of performance “embarrassing”.  She stopped going
because the kinesiologist told her that it was all in her head and that she
just had to push through it.  She took that to mean that he was telling her
that she was crazy, so she cancelled future appointments.

[45]       
She wanted to start physiotherapy or chiropractic treatments, but she
did not have the money.

[46]       
Ms. Wagner’s maternity leave ended in May or June 2010, and she
then sought and obtained employment.  She secured work as a receptionist with a
tattoo and piercing shop.  She said she knew she was not capable of managing
the tasks of a restaurant server.  The tattoo shop had hours of 9:00 to 5:00 p.m.
and, as she recalled, she merely worked part-time hours.  She only worked there
one month because she could not sit as long as was required and she was unable
to do any sweeping due to pain in her lower back and tailbone area.

[47]       
Ms. Wagner saw another general practitioner to report her
depression.  He prescribed anti-depressants, which she took for “at least a
month”, but she stopped because of side effects.

[48]       
Later in 2010 Ms. Wagner felt she was not achieving anything and she
was feeling lost and miserable, so she decided to pursue further education. 
She took a basic counselling course from Vancouver Community College, which ran
from September to December 2010.  The classes took place once a week.  Her
former boyfriend’s mother, with whom she had become close, paid her tuition.

[49]       
She found attending the class “uncomfortable” as it involved a long
drive to Vancouver and back, and the class was two hours long.

[50]       
Ms. Wagner followed up the basic counselling course with a further
program involving training as an addictions and community support worker.  She
took this course from a private college in Coquitlam.  The program ran from
January to November 2011.  She managed it financially by getting a student
loan.  The classes were Monday to Friday, 1:00 to 5:00 p.m., with an additional
optional lab hour from 5:00 to 6:00 p.m.  Ms. Wagner found, however, that
she was sore by the end of the day so she did not attend the lab hour, which
was really just a study hour.  Through a further grant she purchased a laptop
and printer and did her studying at home.

[51]       
Ms. Wagner said she missed some instruction days due to emotional
difficulties or physically not being able to drive to work.  On other days she
left early for the same reasons.

[52]       
During the time she studied at the Coquitlam college she suffered from
insomnia.  She experienced visions of things that would or could happen to
Daxtyn, or to her own life, and she woke up with nightmares.  Ms. Wagner
said that the same problem persists; she cannot turn her mind off due to the constant
overthinking of situations, and worrying about things that might happen to
Daxtyn at daycare, or while playing, or in a car accident or by Daxtyn being
abducted.

[53]       
By the fall of 2010 she was in a relationship with another boyfriend,
J., but they broke up around Christmas.  Ms. Wagner said the he was
verbally abusive and it was not a healthy relationship.  The break-up was
emotionally difficult.  She said she took a while to overcome this “but I did
successfully”.

[54]       
In February 2011 she applied for subsidized housing.  In her application
she indicated that she was “fleeing domestic violence or abuse”.  Ms. Wagner
said that this was because J. continued to contact her and show up at her
residence unexpectedly.  She also said that her basement suite was in a very
old house, and it had rats and mould in it.

[55]       
Ms. Wagner said she commuted to her classes at the Coquitlam college,
at first by having her mother drive her, and later she rode with a friend and
classmate.

[56]       
When asked about any difficulties being in a car, Ms. Wagner said
that after the first accident she was nervous but took it in steps, and after
the second accident it was worse.  She said that now “I get bad anxiety as a
passenger” because she is not in control.  She said it really scares her.  She said
her heart races, her hands get sweaty and her breathing gets fast.  It takes a
lot for her to calm down.

[57]       
As part of the Coquitlam college program Ms. Wagner was required to
do a practicum.  She did a two-month practicum at the Salvation Army Caring Place
in Maple Ridge, where she shadowed front-line workers from 10:00 a.m. to 4:00
p.m.  This was more physical work, and required her to be on her feet.  Later
in the practicum she shadowed an advocate, whose role is to help residents with
various applications and life plans.  The work of an advocate involves more
sitting.

[58]       
On the home front, she was not keeping up very well.  She tried not to
make a mess in her residence in the first place so she would not have to clean
up.  She was unable to sleep as much as she wanted.  Her family and friends
helped out around the house.  She was not always able to keep up with Daxtyn,
who was a very busy toddler.

[59]       
Daycare for Daxtyn started in November 2011.  He has been in full-time
daycare from that time forward.

[60]       
As a result of completing the college program she received a diploma as
an addictions and community support worker.  Her grades were good as she
achieved an A- average.  She obtained employment offers from both the Salvation
Army and the Katzie First Nation, but she chose the latter because the hours
were more regular and manageable.

[61]       
She started with the Katzie First Nation in December 2011 as a child and
youth care worker.  The hours were Thursdays and Fridays 6:00 p.m.to 10:00
p.m.  Her role was to work with youth by connecting with them through games and
activities.  The youth workers also put on workshops on alcoholism and drug
abuse.  Some of the activities were rigorous (for example, soccer) but she did
not participate in those and left them to her work partner.

[62]       
When asked if she had any physical problems at this employment, she said
she could not recall anything specific.  If her back was sore she had the
opportunity to sit down.  The hours of work were short.  She said she did miss
some days due to physical pain or emotional issues.

[63]       
Ms. Wagner’s contract with Katzie First Nation ended in June 2012.

[64]       
During the time she worked with the Katzie First Nation she was involved
in a further car accident.  She was in an SUV being driven by her work partner,
taking four youths to a youth centre.  The driver started to change lanes and
the vehicle beside them “got spooked” and side-swiped their vehicle.  Both
vehicles were driveable afterwards and everyone was okay.  Ms. Wagner said
that she was “spooked” by the accident but that it was not at all comparable to
the earlier accidents.  She said she did experience some aggravated symptoms in
her neck and back, and it took her approximately one month to get to her former
level.  She made a WorkSafeBC claim and was paid around $600 in benefits.  The
only treatment she obtained was from a chiropractor, where she attended 8 to 10
times, but there was no overall benefit from that treatment and she merely
returned to her baseline.

[65]       
Her current employment is with the Salvation Army as a casual, on-call,
front-line worker.  She was hired in June 2012.  Her pay is $15 per hour, with
no benefits.  There are three shifts each day at the Salvation Army facility
and there are differing duties on each shift.

[66]       
In 2012, Ms. Wagner worked approximately 3 days per week, with some
additional shifts when called in.  The way the scheduling works is that if a
worker declines shifts they will be put in a lower priority position.  At month
end the supervisor makes a list of the number of shifts taken by each casual
worker and the person who has taken the least gets the fewest calls for the
next month.  Ms. Wagner said that she is very low on this list.

[67]       
By September 2012 she was continuing to feel overwhelmed and was
“feeling darker”.  Physically she was also feeling worse, which made her
emotional problems worse.  She went to her family doctor and he recommended
anti-depressants, which she tried for a few months.

[68]       
In the fall of 2012 she injured herself at work when she lifted a chair.
She aggravated something in her back and could not come into work the next
day.  She made a WorkSafeBC claim but it was rejected.  She said she missed a
couple of shifts as a result of this incident.

[69]       
Ms. Wagner said that in January 2013 she took a “really bad turn”
and was on a downward spiral both emotionally and physically.  The
anti-depressants had given her no benefit and had side effects, and these side
effects made Ms. Wagner quit the anti-depressants.

[70]       
Ms. Wagner said that her mood descended to such an extent that she
considered giving Daxtyn up to the natural father, who had come back into her
son’s life, because she thought that her son deserved more than she could give
him.

[71]       
By the end of January 2013 her doctor recommended that she take time off
work, so she went off work from January 2013 to June 2013.  In or around May
2013 her family doctor recommended that she see a psychiatrist.  He also
referred her for an MRI to investigate her continuing low back and left hip
problems.  There was also a later MRI of her head.  These MRIs were performed
and she is now on a waiting list to have an arthrogram on her left hip.

[72]       
Ms. Wagner first attended upon a psychiatrist, Dr. Dmitrieva,
in July 2013.  Dr. Dmitrieva told her that she had PTSD, major depression
and generalized anxiety disorder.  She put her on medications, but they caused
sleep difficulties and other side effects.  Several medications were tried as
alternatives.  She last saw Dr. Dmitrieva in the fall of 2013.  She stopped
because she felt that the psychiatrist was simply pushing medications onto her
and these were “screwing up my insides”.

[73]       
When she returned to work in June 2013 her family doctor gave her a note
that recommended restrictions on lifting.

[74]       
A job opening for a full-time advocate came up at the Salvation Army and
Ms. Wagner applied for it.  The work schedule for this position is Tuesdays
to Saturdays, 10:00 a.m. to 6:00 p.m.  It involved a little more pay but also had
employment benefits.  She was interviewed but did not get the job.

[75]       
Since June 2013 she has worked at the Salvation Army Caring Centre two
or three days a week, usually the 4:00 p.m. to midnight shift.  She finds her
shifts more difficult when they are scheduled in a block of time rather than
spread out, as the latter pattern gives her time to recover in between shifts.

[76]       
Another job came up for a permanent front line worker position, which
was a 24 hour a week position with set hours.  When she expressed interest, the
director brought up her likely absence due to the upcoming trial, together with
shifts she has missed in the past.  As a result of this she withdrew her
application.

[77]       
Ms. Wagner said that her present physical symptoms are:

a)    pain in her
neck;

b)    “issues” with
her lower back, mostly in her tailbone area but also all around her lower back;

c)    constant pain in
the front of her left hip, made worse with activity including stairs and longer
walks;

d)    shooting pains
down the back of her left leg, and that leg gets very achy; and

e)    occasional
migraine headaches.

[78]       
Ms. Wagner said her emotional problems are:

a)    uncomfortable
visions about things she cannot control, such as fears for her son; these make
her sweaty and worked up;

b)    nightmares;

c)    when she drives
by the scene of the second accident, which is close to her home, sometimes it
gets her really worked up;

d)    trying to be a
happy mother and to interact fully with her son but “it kills me inside that
what I give isn’t what he deserves”;

e)    the sense that
there is “an ugly cloud over me” that she is unable to push away as well as
thoughts that things are never going to get better, both of which make her feel
bad about herself;

f)      lashing
out inappropriately at her supportive boyfriend;

g)    feeling ashamed
that she “puts on this show” when she does not feel good inside; and

h)    thinking that
she is supposed to be normal but she does not feel normal.

[79]       
As for future plans, Ms. Wagner said that she would like to go back
to school and get a degree in social work, although to do so only to secure
part-time work might not be worth it.

[80]       
Ms. Wagner said she would not apply for any full-time jobs or jobs
with lengthy shifts because she is not capable of doing those.  It is
overwhelming even to think of it and she could not balance work and “emotions
at home”.  She also cannot drive far.

[81]       
Ms. Wagner has wanted to pursue other treatments, like counselling,
therapeutic yoga and naturopathic treatments, but she had no funding to do so. 
She is currently getting counselling and now attends once a week.  She received
an advance in 2013 for get treatment, and she had acupuncture, spinal
decompression and a couple of massages.  She also purchased a gym pass as well
as time with a personal trainer, and she still goes to the gym.  However, there
has not been any improvement to her physical symptoms.

[82]       
Ms. Wagner has an aversion to medications and the only medications
she will take, and these only rarely, are Naproxyn and a muscle relaxant.

[83]       
Starting in the fall of 2012 Ms. Wagner began to have symptoms of
“higher-up back pain”, eventually traced to a genetic disease involving the
kidneys called C3 glomerular nephritis.  Anemia is another symptom associated
with this disease.  Ms. Wagner was treated by a specialist, who
recommended limiting pain medications and prescribed a medication to regulate
protein, which Ms. Wagner did not take.  Ms. Wagner also received B12
injections for her anemia.  The specialist now says the disease is dormant so
there is no ongoing need for kidney medications.

[84]       
Ms. Wagner shares household chores with Mr. Dembowski, though
she only does dishes sometimes and does laundry “in spurts”.  Mr. Dembowski
does the heavier tasks.

[85]       
A pediatrician diagnosed Daxtyn with oppositional defiant disorder,
obsessive-compulsive disorder and attention deficit hyperactivity disorder, but
later the same pediatrician queried whether Daxtyn merely had behavioural
issues.  The pediatrician has maintained the diagnoses for the meantime.

[86]       
In cross-examination Ms. Wagner said:

a)    in April 2010
she was referred for treatment with a kinesiologist at no cost to her.  The
program was to last from three to 12 weeks but she attended just eight times
over 18 days, and quit because she “felt like an idiot” because she could not
do all the kinesiologist wanted her to do;

b)    she had
frustration and stress dealing with her car accident claim on top of caring for
her son;

c)    she left the
appointment with Dr. Levin, the defence psychiatrist, at the two-hour
mark, despite being asked to stay, because she had been told it would only last
two hours and she had to get home to her son;

d)    her parents broke
up when she was four years old; her father has addiction issues and she broke
off contact with him in 2013, which was a difficult decision and painful event;

e)    she was aware
that there was a Ministry of Children and Families (“MCF”) file about her
during her childhood; she recalled wanting to live with her father and that
there were safety concerns about that;

f)      the
sexual touching incident (which, for clarity, did not involve her father),
which took place in late 2003, made her stressed; she agreed she felt angry and
abandoned by her mother, and depressed and sad; she agreed that MCF was involved
and she agreed with the MCF comments that her mother was “not able to help her
and provide a safe environment” and that she (Ms. Wagner) was “struggling
due to the ongoing stress in her life”;

g)    she and her
mother had to find housing before the end of January 2004, so this was an
additional problem.  Ms. Wagner took a bus to Edmonton to live with her
sister in March 2004, and by that time her mother was living with her
grandmother; there was no financial support paid to her sister for Ms. Wagner’s
support; and Ms. Wagner’s conflict with her mother dragged on for several
months;

h)    she had a close
relationship with her sister around that time, and up to the time of the first
car accident in late 2008 she was babysitting her sister’s child, but they had
a falling out in April 2009 and it was upsetting to lose contact with her
sister, who had been supportive of her;

i)      after
Daxtyn’s birth she began an on-off relationship with J., which lasted from August
2009 to May 2011; he was abusive and manipulative, and it was an unhealthy
relationship;

j)      in
February 2011, during the time she was in that relationship, she filled out an
application for subsidized housing where she asserted she was “fleeing domestic
violence or abuse” and “has a serious health condition and/or disability that
is affected by our current housing”;

k)    the “serious
health condition” was mould and rats in their house, and she was concerned her
son could be affected by these; nonetheless she lived there for two years and
this caused some stress; they obtained subsidized housing in October 2011;

l)      she
agreed she saw her family doctor in August 2007 (at age 18), due to stress
arising out of a workplace issue; she was tearful, stressed, unable to sleep
and had migraines for a couple of days;

m)  she attended the career
college from January to November 2011, which required her to travel from Maple
Ridge to Coquitlam and back, using busy streets; her mother and her classmate Brea
Moir drove at first, and later Ms. Wagner drove;

n)    she had
migraines prior to the first accident and saw a specialist for migraines at one
point;

o)    in the year
prior to the May 2009 birth of her son she was on EI benefits and welfare, and had
to get by with help from the Food Bank; Daxtyn’s father did not contribute at
all financially during that time; she was unable to make payments on loan
relating to her car and the bank “shut down” her loan;

p)    she acknowledged
having emotional issues after Daxtyn’s birth and spoke to a physician about it;
she did not want anyone to touch Daxtyn and she was very anxious about his
development and not knowing whether there was something wrong with him; at this
time she also came to resent her boyfriend Tyler Klassen and broke off their
relationship;

q)    Daxtyn was
difficult to manage due to aggressive behaviour, which prompted complaints from
the daycare; Ms. Wagner had concerns that something was going on with him,
and the complaints increased her anxiety and worry;

r)     she acknowledged
that there is no medical evidence that the car accidents affected Daxtyn’s
birth or contributed to any developmental delays, but she believes that but for
the accidents she would have had a normal birth;

s)    if she were to
work full-time her housing subsidy would be reduced, but this is not a reason
why she would not work full-time;

t)      once
Mr. Dembowski moved in with her things became more financially stable;

u)    she applied for
a 30-hour per week advocate position with Salvation Army but was not sure she
was capable of those hours and was afraid she would fail;

v)    her studies at
the Coquitlam college were from Mondays to Fridays and involved more than four
hours of study, plus 30 to 45 minutes of driving each way, on each day; she
achieved an A minus grade average; she found the studies to be a positive
experience, she expanded her social network, and it lessened her depression;

w)   her job at the Katzie
First Nation was less onerous than her college program or her two-month
practicum;

x)    her physicians
have recommended that she engage in physical activity; she did not follow Dr. Koo’s
recommendation to engage in a home-based exercise program because she did not
have the money (and, through counsel, she requested funding for Dr. Koo’s
various recommendations in June 2013), though she acknowledged she did not need
money to do stretching exercises or walking;

y)    she does not do
therapeutic yoga because she does not know how to do it (and, through counsel, she
requested funding for yoga in January 2013); she went to yoga once but quit
because she was self-conscious;

z)    she received an
advance of $20,000 for treatments and started physiotherapy in December 2013,
but felt “overwhelmed” to find times to carry on with it;

aa) in 2012 she told Dr. Grypma (the
defence orthopedic surgeon) that she was not doing any physical activity; she
was aware that Dr. Grypma said in his report that “her prognosis is
related to future exercise efforts”;

bb) at her 2011 examination for
discovery she said that her hip pain developed after the second accident, but
this answer was not true because she reported hip pain in December 2008; the
pain subsided after that but then became more of a problem after the second
accident;

cc) her current job can be stressful,
involving rude and angry clients, defusing conflict and sometimes having to
call the police; the workload in winter is extreme and the pressure is almost
double compared to other seasons; and she felt under terrible pressure every
day to deliver her work, constantly thinking it was too much to handle;

dd) she lost time from work in 2013
because she was “feeling overwhelmed” and the stress of work was part of that;

ee)  while off work she felt fatigued
and had low energy; she was later diagnosed with anemia, which has these same symptoms,
and she received regular B12 injections as a result;

ff)    the car accident
of May 2012, which occurred while working at the Katzie First Nation,
aggravated her neck and back and caused her to miss two weeks of work; it took
one or two months to return to her pre-accident level;

gg) she did not recall telling either of
the psychiatrists Dr. Ganesan or Dr. Levin about the May 2012 car
accident;

hh) her physical symptoms make her
emotional symptoms worse; her emotional symptoms were worse by September 2012,
a few months after the third car accident;

ii)     her kidney
issues started around October 2012 and gave her a new uncomfortable pain in her
back, as well as constipation, discoloured urine and poor sleep; she was
referred to two kidney specialists; these investigations continued into 2013
but she said this was only a “small source of stress”; and

jj)     she agreed
she has had a lot of stressors in her life but said she is able to separate
them; despite the fact that she is now in a long-term relationship and concerns
about her son should be allayed, she still worries about her son’s health and
“my emotions are not any different inside”.

B.           
Kyle Dembowski

[87]       
Mr. Dembowski is Ms. Wagner’s boyfriend.  He knew her before
the accidents but they were not in a relationship until afterward.  They began
cohabiting in June 2013.

[88]       
Mr. Dembowski described Ms. Wagner both before and after the
accidents.  Before the accidents she was very outspoken, happy, loud, fun, and she
had a good sense of humour.  Now, after the accidents, Ms. Wagner is a lot
quieter, she is depressed quite a bit, she is over-emotional, gets stressed
out, and has a lot of “bad days”.  She is an insomniac and only gets a few
hours of sleep.

[89]       
Mr. Dembowski considers that Ms. Wagner is a “phenomenal mum”. 
The things they do together include movies, drives and walks.  If they take
Daxtyn to the park he is the one who plays with the child while Ms. Wagner
watches, due to her back and hip pain.

[90]       
Mr. Dembowski described Ms. Wagner as a terrible passenger.  Ms. Wagner
does not like his driving or, for that matter, anyone’s driving as she does not
like being in a car.

[91]       
Ms. Wagner overreacted one time when he was driving and the car
slid a minor amount.  Recently there was a minor motorcycle accident near their
home where Ms. Wagner came on the scene later and helped the motorcyclist,
who had only a few cuts and scrapes.  That evening Ms. Wagner cancelled
plans they had made, seemingly affected by the motorcycle accident to such an
extent that “she went into her little bubble” and just wanted to stay home.

[92]       
Mr. Dembowski said that he does 90% of the household chores.  Ms. Wagner
does what she can “but pays for it”.  She buys the groceries but he carries
them into the house.  After work she is very tired; usually she goes straight
to the couch because her back is sore.

[93]       
Ms. Wagner took a leave from work in spring 2013.  She was very
stressed out.  He could not pinpoint the cause, but said she seemed to be
taking on a lot and it was too much to handle, so she needed a break from work.

[94]       
In cross-examination Mr. Dembowski said:

a)    after the third accident
he did not notice any more injuries to Ms. Wagner than before but said she
was “a little bit sore”;

b)    one of the
activities they like to do together is driving;

c)    Ms. Wagner is
primarily responsible for looking after Daxtyn;

d)    Ms. Wagner’s
job is stressful, but she likes the work.

C.           
Brea Moir

[95]       
Ms. White was a classmate of Ms. Wagner’s at the career
college and is a former cheerleading coach of Ms. Wagner’s.  Ms. Moir
works at the Salvation Army, doing the same sort of work as Ms. Wagner
does, although Ms. Moir only works part-time due to a variety of difficult
medical conditions.  She is currently on maternity leave.

[96]       
Ms. Moir described Ms. Wagner’s pre-accident cheerleading as
being very high-level competitive cheerleading.  This type of cheerleading was
very difficult and intense, and participants had to be very strong and fit. 
The team entered 10 to 15 competitions each year and it did very well.  Ms. Wagner’s
capabilities were at the very top.

[97]       
Ms. Wagner was in high school while she was on the cheerleading
team.  Ms. Moir found Ms. Wagner to be very outgoing, “bubbly”,
easygoing and a “go-getter”.  She did not see that Ms. Wagner had any
emotional difficulties or anxieties, nor did she see any physical problems with
her.

[98]       
Ms. Moir did not see Ms. Wagner for a considerable time but
reconnected at the career college.  Ms. Wagner did not attend every day
because she was too sick or sore, or she would leave early.  She did not stay
for lab time, although Ms. Moir said later that she (Ms. Moir) did
not stay for lab time either.  Ms. Moir observed that Ms. Wagner was
in pain, in her back and hip areas.  At the end of the day Ms. Wagner
seemed drained.

[99]       
Ms. Moir also observed Ms. Wagner’s emotional problems.  Ms. Wagner
was very depressed and she was upset that she could not do mother-son
activities with her little boy.  She felt inadequate, could not do the things
she loved and could not return to competitive cheerleading.  Ms. Moir
drove to school with Ms. Wagner and noted that Ms. Wagner was “really
tense”, holding on to the door handle, and Ms. Moir would have to drive
slowly.  When Ms. Wagner drove she did so very slowly and she seemed very
scared.

[100]     Ms. Moir
worked the same shifts as Ms. Wagner for about four months.  Setting up
tables and chairs was too hard for Ms. Wagner, so she would get the easier
jobs.  Ms. Moir noted Ms. Wagner’s physical problems, including
limping and back pain from stair climbing or sitting and standing. 
Emotionally, Ms. Wagner appeared drained, overworked, stressed,
anti-social and overwhelmed.

[101]     Occasionally
Ms. Moir visited Ms. Wagner at home.  There, she saw Ms. Wagner
in pyjamas at all hours and looking unkempt.  Emotionally, Ms. Wagner was
withdrawn and quiet, sad and depressed.  She was completely different than she
was during her high school cheerleading days.

[102]     In
cross-examination Ms. Moir said:

a)    Ms. Wagner
did very well at the college, and she socialized and made friends in class;

b)    Ms. Wagner’s
son had some issues with allergies, and he is on medication for ADD or ADHD,
which is a source of concern and anxiety for Ms. Wagner;

c)    Ms. Wagner
is a good mother;

d)    Ms. Wagner
had a difficult relationship with her former boyfriend, J., who was not a nice
person, with anger and attitude problems, and who would yell at Ms. Wagner
and “freak out”.  She agreed that Ms. Wagner was a single mother in a
relationship with an abusive boyfriend.  However, once Ms. Wagner broke up
with him she was fine;

e)    Ms. Wagner
broke off communication with her father, and this was “somewhat stressful” for
her;

f)      Ms. Moir
was aware that Ms. Wagner has other physical problems, including kidney
problems and chronic anemia; and

g)    Ms. Wagner
revealed to Ms. Moir the sexual assault incident.  Ms. Wagner was mad
and hurt at the time it happened but did not harbour emotions about it now.

[103]     In
re-examination Ms. Moir said that when discussing the birth of her son Ms. Wagner
was crying and very upset, and when discussing the car accidents she re-lives
them and gets anxious.

D.           
Tyler Klassen

[104]     Mr. Klassen
is the former boyfriend of Ms. Wagner.  They were in a relationship in
2008 and 2009.  Mr. Klassen met Ms. Wagner when she was pregnant, not
long after she had broken up with Daxtyn’s father.  Mr. Klassen found her
to be a lively, happy person.  They did activities together, such as movies,
walks, shopping and “couple stuff”.  He observed no physical difficulties with Ms. Wagner
and did not see her having any depressed moods, anxiety or issues with driving.

[105]     Mr. Klassen
saw Ms. Wagner at RCH, after the December 2008 car accident.  In the days
after the accident he noted she was having back and neck pain and was limping.

[106]     At some
point Ms. Wagner moved to a basement suite.  Mr. Klassen helped Ms. Wagner
move, doing “basically everything”.  He prepared and painted the baby’s room
and baby-proofed the suite.

[107]     Mr. Klassen
was with Ms. Wagner at the time of the second car accident.  Ms. Wagner
was driving and they were travelling west on Dewdney Trunk Road.  Ms. Wagner
stopped for a pedestrian at a crosswalk and they were then struck from behind. 
Ms. Wagner was “frightened, crying, freaking out, holding her stomach,
worried about the baby” and complaining of pain in her stomach, neck and back. 
He helped her out of the car and sat her on the sidewalk.  A lot of concerned
people arrived and the scene became a bit chaotic.  Ms. Wagner was “in her
own world”, “crying and in a panic”.  The ambulance came and she was taken to
RMH at first, then later to RCH.

[108]     Mr. Klassen
saw Ms. Wagner every day while she was at RCH.  He noted she had trouble
walking, was limping, and was holding her back quite a bit.  He did not observe
any emotional issues with her; she was just sad about what happened.

[109]     After
Daxtyn was born she continued to have back and neck pain, and was limping.  He
noted that Ms. Wagner found it too hard to hold the baby for breastfeeding
because of her sore neck and back.  When asked if he observed any mood issues, Mr. Klassen
said, “Sort of, she was up and down with her emotions”.  Mr. Klassen
continued to visit as much as Ms. Wagner wanted, but she wanted to do it
alone.  About a month after the baby was born Ms. Wagner broke up with
him.

[110]     Ms. Wagner
became friends with Mr. Klassen’s mother, a friendship that continues. 
His mother helped Ms. Wagner pay for her career training.

[111]     In
cross-examination Mr. Klassen said:

a)    he did not
observe any issues with Ms. Wagner caring for Daxtyn; and

b)    he spent a lot
of time fixing up the place he described as the “log house”; he said Ms. Wagner
might have expressed health concerns about the place, mentioning the smell of
mould, but Mr. Klassen was not sure if there was actual mould or if it was
just “old house smell”.  He did not recall that there were ever any rats in the
house.

E.            
Jesse Fast

[112]     Ms. Fast
is Ms. Wagner’s mother.  She described her daughter’s pre-accident
personality as happy; she was very social and was very popular.  She did well
in high school and had no problems balancing school, cheerleading and part-time
work.  She had no pre-accident problems with her neck, back or hips and was
never diagnosed with any psychological disorder.  Her general emotional health
was good.

[113]     Ms. Fast
acknowledged a sexual touching incident that occurred when Ms. Wagner was
in grade 10.  When Ms. Fast heard about it she took Ms. Wagner over
to Ms. Wagner’s sister’s house.  Later, Ms. Wagner moved with that
sister to Edmonton, staying a couple of months.  The incident was hard on Ms. Wagner
and she received counselling for this through the school.

[114]     Ms. Wagner
called Ms. Fast after the December 2008 car accident.  She was at the
hospital.  Ms. Wagner was worried about the baby and complained that the
staff were not telling her anything.  When Ms. Fast saw her a couple of
days later she noted that Ms. Wagner was having problems with her neck and
shoulders and could not stand for very long.  Ms. Wagner seemed upset,
saying “no one cares about the baby”.

[115]     Over the
next few months Ms. Wagner continued to have physical problems and
continued to be worried that something would be wrong with the baby.  She also
became a nervous car passenger.

[116]     Ms. Fast
learned of the second accident of April 2009 when she was telephoned by a
bystander.  Ms. Fast went to the scene and saw her daughter sitting on the
sidewalk, screaming and crying.  She was holding her stomach and staying
“something’s wrong”.  At RMH she continued screaming and crying and expressing
worry about the baby.  Her daughter repeated these concerns after she was
transferred to RCH.

[117]     Ms. Fast
and her own mother moved in with Ms. Wagner in order to look after her and
to ensure Ms. Wagner did not do anything that might provoke labour. 
During this time Ms. Wagner was always crying and she was always talking
about her concern for the baby.  She was difficult to live with and Ms. Fast
felt they were always walking on eggshells with her, afraid to upset her.

[118]     When Ms. Wagner’s
water broke she was in a panic and was “screaming and freaking out”.  After the
birth Ms. Wagner told her mother that they had to transfer to a hospital
in Washington state or the baby was going to die.  Ms. Wagner was in a
panic.  A spot at LGH opened up and they were transferred there instead.

[119]     Ms. Fast
visited her daughter at LGH.  Ms. Wagner was very angry and upset that
someone had hit her and that nothing would happen to that person yet her baby
was fighting for his life.  She thought the baby was going to die.

[120]     After
Daxtyn was discharged from hospital Ms. Fast continued to live with Ms. Wagner
for a further two or three months, doing all the housework because Ms. Wagner
could not do anything.  Ms. Wagner had difficulty breastfeeding because it
was hard on her shoulders, neck and back, and she could not cradle him.  This
was very upsetting for Ms. Wagner.

[121]     After
Daxtyn’s birth Ms. Wagner was always worried that there was something
wrong with him.  It became too much for Ms. Fast and she found she could
not handle this constant worry.

[122]     Ms. Fast
drove Ms. Wagner to college for a time, but after a while Ms. Wagner
travelled with Ms. Moir, and still later Mr. Wagner drove herself.

[123]     At present
Ms. Fast does not see her daughter as much as she would like.  Ms. Wagner
has “pulled away from me” and is not the same person.  She is no longer the
bubbly, happy person she was and now does not want to do anything and she
dreads going to work.  She has a lot of mood swings and is often depressed.  At
one point Ms. Wagner told her mother that she was considering giving the
baby up to the natural father because she felt she could not look after him
properly.

[124]     In
cross-examination Ms. Fast said:

a)    she did not know
much of Ms. Wagner’s relationship with the baby’s father, although her
daughter was upset when it came to an end, saying “now Daxtyn won’t have a
dad”;

b)    Ms. Wagner
has been able to manage stress and get on with things, including school;

c)    she had no
health concerns about the basement suite Mr. Klassen fixed up, and in the
months she stayed there she saw no mould, although she heard rats in the roof;

d)    Ms. Wagner
is still able to maintain a clean house;

e)    Daxtyn’s birth
was premature and his medical issue at birth was a hole in his lung; although
one doctor mentioned he might have ADHD, Ms. Fast felt he was normal and that
he was just like Ms. Wagner was at that age;

f)      Daxtyn
has no other medical issues; and

g)    Ms. Wagner
went to college after Daxtyn was born; she loved it although it was hard on
her.  She pushed herself to get through.

F.            
Michael Maloney

[125]     Plaintiff’s
counsel read in answers from the examination for discovery of the defendant
Michael Maloney, who was the driver of the vehicle that struck Ms. Wagner’s
car in the April 2009 accident.

[126]     Mr. Maloney
was driving a Ford Explorer.  He acknowledged that his vehicle rear-ended Ms. Wagner’s
car.  He gave a rough estimate of his speed at 40 km/h when he hit the car. 
The air bags in the Ford Explorer deployed and there was about $10,000 in
damage to his vehicle.

[127]     The other
driver was pregnant.  She was in labour afterward, and was visibly upset and
crying.  It was a “nightmare scene”.

III.          
Expert Evidence

A.           
Dr. Soma Ganesan – Psychiatrist

[128]     Dr. Ganesan
is a psychiatrist who authored two medical-legal reports and an addendum
report, at the request of plaintiff’s counsel.

Report
of December 7, 2012

[129]     In his
first report Dr. Ganesan concluded that Ms. Wagner suffers from PTSD,
generalized anxiety disorder and major depression.

[130]     Dr. Ganesan
learned that Ms. Wagner’s family doctor had started her on Cymbalta, a
medication often used for anxiety disorder and depression.  In his report he
said he explained to Ms. Wagner that Cymbalta is a good medication and
that she should remain on it for 12 to 18 months.  He also endorsed the
recommendations of Dr. David Koo, a physiatrist, about pain-reducing
therapies, and also discussed with her learning yoga or meditation to help in
reducing her feelings of panic.  Finally, he suggested counseling by a
qualified professional to address her concerns about her son’s development.

[131]     In an
addendum report of January 7, 2013 Dr. Ganesan reiterated his
recommendation that Ms. Wagner take an appropriate antidepressant for at
least 12 to 18 months, but he noted that even with successful treatment subsequent
long-term relapse is about 50% depending on psychosocial stressors.  He added
that psychological counselling and cognitive-behavioural therapy should also be
available after any full recovery to prevent full relapse.

Report
of June 21, 2013

[132]     Dr. Ganesan
noted that after his report of December 7, 2012 Ms. Wagner was referred to
a psychiatrist, Dr. Dmitrieva, who switched medications from Cymbalta to
another medication.  Dr. Ganesan also noted that she had been referred to
a program for cognitive-behavioural therapy.

[133]     Dr. Ganesan
concluded that Ms. Wagner continued to suffer from a combination of
post-traumatic stress, anxiety and depressive symptoms.  He considered it
fortunate that Ms. Wagner was being seen by a treating psychiatrist who
recognized that Ms. Wagner needs a combination of appropriate medication
and psychological intervention.

[134]     Dr. Ganesan
also commented on the October 5, 2012 report of the defence psychiatrist, Dr. Alexander
Levin.  Dr. Ganesan said:

a)    he did not
consider that Ms. Wagner’s behaviour at the scene of the second accident
was inconsistent with PTSD, as Dr. Levin did;

b)    he did not
consider that the absence any reference to emotional distress in the RCH
clinical notes meant that she was not in distress; Dr. Ganesan said that emotional
issues are not the typical focus of emergency room personnel when faced with
urgent physical issues; and

c)    he rejected the
approach of Dr. Levin insofar as Dr. Levin looked for “perfect
textbook symptoms”.

Testimony
at Trial

[135]     In
cross-examination Dr. Ganesan said:

a)    Ms. Wagner
did not tell him she was receiving treatment for chronic anemia; the most
common B12 symptom is pain, and whether that pain is chronic depends on the
treatment; fatigue is also common;

b)    he did not raise
the possibility of post-partum depression, though he acknowledged that Ms. Wagner’s
symptoms arose after her son’s birth; he did not consider that her symptoms
were likely linked to post-partum depression as there are “a lot of causal
factors”;

c)    post-partum
depression symptoms include anxiety about caring for the child as well as a
feeling of being overwhelmed; here, Ms. Wagner felt overwhelmed prior to
delivery and the symptoms carried on, so he felt it was not post-partum
depression;

d)    following her
son’s birth and her discharge home she encountered distress after returning
home in that she ended her relationship with the person he (erroneously)
believed was the child’s father; Ms. Wagner did not tell him that her
relationship with her boyfriend J. was abusive, instead the impression he had
was that it was “not rewarding”; the fact that she said her other boyfriend had
cheated on her would be a negative experience;

e)    her sense of “not
having anyone to turn to” was also a stressor;

f)      he
was not aware of Ms. Wagner’s housing problems, nor of her problems with
asthma and bronchitis, but these would also be stressors in her life;

g)    her father’s
drug addiction would contribute to her psychosocial symptoms and depression,
although breaking off a negative relationship could be a positive
development;

h)    Ms. Wagner’s
concerns about her son’s health and development are a considerable source of
anxiety for her; in his December 7, 2012 report he noted that her fears were
now less about her son’s physical health and now focused on his mental health
and her fear that he was “retarded”;

i)      her
son’s medical issues are an obvious contributing factor to her mood disorder;

j)      being
told of her son’s health issues after birth was a cause of significant
emotional turmoil, although this was ongoing from before his birth and it is
not easy to isolate one incident;

k)    looking at just
her son’s health issues on their own, there would have been, at the very least,
adjustment difficulties and there could be the potential to develop PTSD as a
result, though whether it would be likely is difficult to say;

l)      Ms. Wagner
told him that she did not do well at her post-accident college studies; if that
history were to be incorrect that would affect the validity of his opinion;

m)  Ms. Wagner did not tell
him about her 2012 car accident, though he would have asked her about anything
significant that happened to her either physically or emotionally;

n)    Ms. Wagner’s
problems are multi-factorial, which include a traumatic birth, poor housing,
worrying about her child, an abusive relationship, and potentially other
factors; and

o)    he would not say
that Ms. Wagner would likely have had the same problems but for the car
accidents and all her issues have to be looked at as a global formulation; he
cannot say if the traumatic birth of her child would have caused her these
problems in the absence of the accident.

B.           
Dr. David Koo – Physiatrist

[136]     Dr. Koo
is a specialist in physical medicine and rehabilitation.  He wrote two reports
as well as an addendum report.

Report
of November 21, 2011

[137]     In his
first report Dr. Koo said that the two accidents “likely resulted in, or
significantly contributed to, the development of the following accident-related
conditions”:

a)    acute soft
tissue injuries to the neck, upper back, wrists, lower back and left hip;

b)    chronic
myofascial pain in muscle groups in the neck and shoulder areas;

c)    chronic
mechanical low back pain arising from lumbar paraspinal myofascial pain and a
painful limp;

d)    bilateral
sacroiliac joint strain, worse on the right;

e)    myofascial pain
of the pelvic girdle muscles with “snapping hip”;

f)      major
depression (moderately severe); and

g)    post-traumatic
stress disorder.

[138]     Dr. Koo
said that Ms. Wagner had secondary complications from her injuries,
including chronic disordered sleep, loss of flexibility and range of motion in
her neck, back and hips, muscular deconditioning and reduced activity tolerance
and chronic intermittent headaches.

[139]    
Dr. Koo felt that injuries from the first accident increased her
susceptibility to injury from the second accident.  In addition:

[The bedrest ordered because of
her pregnancy] likely compounded the effects of her musculoskeletal injuries
from the second accident, through additional stiffness and deconditioning, in
addition to escalating the psychological trauma of worry for the unborn child’s
health.

[140]     Dr. Koo
said that the persistence of the myofascial pain “is suggestive that some
degree of chronicity is probable” and spontaneous cure or resolution was unlikely. 
He went on to make recommendations for treatment, noting that Ms. Wagner
would likely continue to remain at elevated risk for re-injury and symptom aggravation,
and emphasising that treatment might ameliorate the condition but would not cure
it.

[141]     Dr. Koo
said that, in addition, Ms. Wagner had “clearly sustained a psychological
injury”, having symptoms consistent with PTSD and severe major depression.  He
noted other possible psychosocial stressors and said he would defer to
colleagues in psychiatry for a more qualified analysis of the relative
contributors to her current depressive symptoms and a discussion of treatment
options.

[142]     Dr. Koo
said that Ms. Wagner would be best served by treatment given through a
multimodal chronic pain program.

Report
of April 24, 2012

[143]     This was a
rebuttal report that was written to address the report of the defence
orthopedic surgeon, Dr. Martin Grypma.

[144]     Some of Dr. Koo’s
comments were directed to very specific aspects of Dr. Grypma’s report. 
More generally, Dr. Koo disagreed that there was delay in the onset of low
back pain following the second car accident, and he appeared to disagree with Dr. Grypma’s
assertion that lower back injuries are very unlikely in rear-end accidents.  He
also disagreed with Dr. Grypma’s opinion that Ms. Wagner’s enduring
neck pain was due to inactivity and deconditioning.

[145]     Dr. Koo
took issue with Dr. Grypma’s statement that he would have expected
recovery two to three months after the car accidents.  Dr. Koo said that a
significant minority of patients develop chronic symptoms.  Finally, Dr. Koo
disagreed with Dr. Grypma’s opinion about the duration of Ms. Wagner’s
disability.

Report
of October 16, 2013

[146]     This
supplementary report addressed recent MRIs of Ms. Wagner’s head and hip. 
The June 2013 hip revealed a cystic lesion suggestive of a labral tear.  Dr. Koo
said that it was now possible to conclude that some of her hip pain was likely
related to second car accident, particularly as it related to mechanical
clunking during certain left hip manoeuvres.

Report
of March 21, 2014

[147]     The
purpose of this report was to provide an updated opinion.  In general, Ms. Wagner
reported to Dr. Koo that her various symptoms (neck, back and left hip)
persisted, though her wrist pain had largely resolved.  She had ongoing
depressive symptoms, PTSD symptoms and sleep disruption.

[148]     Dr. Koo
reiterated the various diagnoses outlined in his first report.  He felt that
the May 2012 car accident likely resulted in further re-injury and temporary
aggravation of her neck and back complaints, but that these had settled back to
the baseline present before that accident.  He said that the 2012 accident did
not appear to have affected her “overall trajectory of recovery”.

[149]     Dr. Koo
concluded that (1) his opinion remained unchanged; (2) Ms. Wagner’s
prognosis was poor; and (3) the chronicity of her symptoms was probable. 
Although he again deferred psychiatric diagnoses to a mental health specialist,
he nonetheless opined that the persistence of her symptoms despite medication
trials and her “inability to follow through with counselling” suggest a poor
prognosis.  He recommended ongoing psychological counselling, psychiatric
review and psychotherapy sessions.

Testimony
at Trial

[150]     Dr. Koo
said that physiatrists deal with psychiatric issues because some patients have
psychiatric problems as a result of their physical issues and the psychiatric
issues will interfere with patient outcomes.  Psychiatric issues form an
important part of the practice of physical medicine and rehabilitation.  The
diagnosis and treatment of anxiety is a regular occurrence for him; PTSD
patients form a subset of patients with depression and anxiety and typically
PTSD patients are referred to a psychiatrist for treatment.

[151]     In cross-examination
Dr. Koo said:

a)    although he
noted that one of Ms. Wagner’s secondary complications was “chronic
disordered sleep”, he agreed he did not mention that Ms. Wagner was a new
mother, and new mothers commonly have disordered sleep;

b)    he acknowledged
that shift work can also disrupt sleep patterns, and Ms. Wagner had been
working afternoon shifts for the last two years; a new mother working 4 p.m. to
midnight shifts might well have disordered sleep, particularly in the first
year;

c)    he conceded that
going into the first car accident Ms. Wagner might have had some mild
psychological vulnerability as a result of the sexual assault incident;

d)    he could not
rule out post-partum depression as a contributing factor after the second car
accident; although Ms. Wagner did not have some of the characteristics of
post-partum depression (for example, a failure to bond with the infant) there
is some symptom overlap with the other psychological conditions;

e)    many new mothers
feel overwhelmed and this could explain Ms. Wagner’s symptoms in this
respect;

f)      Ms. Wagner
said she felt her pre-birth living conditions (being confined to a dark bedroom
for two weeks) aggravated her depression, something he did not mention in his
report;

g)    he said he
should have followed up with Ms. Wagner about her housing application (contained
in the records of the family doctor) indicating she was “fleeing domestic
violence or abuse” and had a “serious health condition”; he assumed that
psycho-socially she was okay now that she had moved and was in a stable
relationship;

h)    Ms. Wagner
made no mention to him of those issues and that history might have been
relevant to determine what factors were causing or contributing to her mood
disorder;

i)      he
did not ask Ms. Wagner about her estranged relationships with her sister
and father;

j)      Ms. Wagner’s
problems are multi-factorial;

k)    in the “bigger
picture” he felt the car accidents were enough to cause Ms. Wagner’s
depression, but other factors could contribute to it and possibly cause it;

l)      in
2011 he recommended physiotherapy, stretching and low-impact exercise as
appropriate; had Ms. Wagner started these earlier therapies then things
would have improved, although he was not able to say for how long;

m)  for the 2012 accident Ms. Wagner
told him she had neck pain that resolved after one to two months; although her
family doctor noted “back pain” and “new lower back pain” he was not sure if he
had these records and he said it would have been beneficial if he had been able
to ask her about these complaints;

n)    a 2013 MRI
showed degenerative changes in her lumbar spine, which would have predated the
car accidents, known as facet joint arthropathy; these occur about 20% of the
time in people in their twenties, they can turn into bone spurs, can irritate
the spinal canal and can cause numbness or sciatica; Ms. Wagner’s
complaints of “pins and needles” and numbness are consistent with both
myofascial pain and sciatica;

o)    he said he took
these other issues into account but he had a different theory (myofascial pain)
to explain the symptoms;

p)    in his 2014
report he said that the 2008 car accident “likely contributed to her hip
injury” but he acknowledged he could not say the accident caused the labral
tear because a tear is a process, a weakening of an area, and it can be a
gradual onset;

q)    he did not
mention left hip causation in his 2011 report because Ms. Wagner said she
had no left hip pain; she said did not complain of left hip pain until after
the birth of her son;

r)     although
hip pain is mentioned after the first car accident in the records of the family
doctor, he agreed that it is impossible to diagnose a hip tear based on those
records;

s)    he could not
rule out childbirth as a cause of the hip pain, although that would be rare;

t)      if she
had unresolved PTSD at the time of the 2012 accident it is possible this
further accident would contribute to it; certainly there would be an increased
vulnerability and would not make her prognosis any better; and

u)    her current
state of functioning likely combines all three car accidents.

C.           
Janet Hunt – Occupational Therapist

[152]     Ms. Hunt
is an occupational therapist who prepared a functional/work capacity evaluation
of Ms. Wagner in February 2012.  Ms. Hunt’s report is dated February
29, 2012.

[153]     Ms. Hunt
noted that Ms. Wagner participated in the work capacity testing with
variable effort, limiting her lift testing performance due to reported neck and
back pain and expressing concerns about post-test symptoms and the consequences
for her later on.  Ms. Hunt said “there appear to be behavioural and
emotional difficulties contributing to her current level of disability”. 
Nonetheless, Ms. Hunt concluded that Ms. Wagner’s overall effort was
sufficient to provide a reasonable representation of her current physical
capacity.  Ms. Hunt also noted occasional mild discrepancy between
reported abilities and demonstrated function and for that reason concluded that
Ms. Wagner’s own reports of function should be viewed with some degree of
caution.

[154]    
Ms. Hunt found limitations in certain activities, such as sustained
periods of looking down, moderate to extreme stooping and right-side
crouching.  Ms. Wagner demonstrated reasonable continuous sitting
tolerance, and her standing and walking tolerance showed her to be capable of
work with occasional standing and walking demands.  Ms. Hunt concluded:

Based on the functional test findings it is my opinion Ms. Wagner
is physically capable of part time work meeting the limitations outlined in
this report (approximately 20 to 25 hours per week) in addition to her current
child care and homemaking responsibilities.  It is possible she could improve
her functional tolerances to allow her to physically work up to full time hours
on an ongoing durable basis, with implementation of the rehabilitation interventions
below and once her young son is more independent, with a reduction in the
lifting in the lifting, carrying and bending demands associated with early
child care.  However, in this case identified behavioural/emotional
difficulties may be a barrier to full time employment.

In summary, based on the
functional test finding and the reported range of physical demands associated
with this work [with the Katzie First Nation], Ms. Wagner currently
demonstrates the physical ability to work on a part time basis in at least some
jobs that fall within the NOC category for Community and Social Service
Worker.  It appears her physical limitations will preclude her from the full
range of jobs she would likely have been able to perform if not for the two
accidents in question.  For example, she would not be able to perform jobs
requiring her to be on her feet for extended periods of times, sit for long
periods of time without breaks and/or engage in physically strenuous activities
that require a good level of physical fitness.  In some instances she may be
able to perform jobs with reasonable accommodation.

[155]    
Ms. Hunt addressed Ms. Wagner’s capacity for work in her
desired field of child and youth counsellor or social worker.  Ms. Hunt
said:

Based on the functional findings,
Ms. Wagner will likely experience increased symptoms related to additional
education and/or studies if she is attending school on a full time basis, due
to reduced tolerance for sustained sitting and work intensive sitting
postures.  With respect to Social Worker jobs, based on the physical demands
identified by the NOC she would currently be physically able to tolerate this
work on a part time basis.  She may be physically better suited to some jobs
than others depending on specific job duties.

[156]     Ms. Hunt’s
rehabilitation recommendations included psychological counselling, an occupational
therapy consultation, physiotherapy treatment and active rehabilitation, home
exercise equipment and gym passes, homemaking support to facilitate program
participation, and ergonomic equipment.

Testimony
at Trial

[157]     In
cross-examination Ms. Hunt said that the assessment of Ms. Wagner
took just over seven hours, with a 35-minute lunch, the premise being that it
replicates a work day.  Ms. Wagner stood for a total of 3.5 hours and was
sitting for a total of three hours, 20 minutes.

[158]     In
addition, Ms. Hunt was told that it took Ms. Wagner two hours to get
to the assessment location and that Ms. Wagner had not slept because her
son was ill.

[159]     At the
time of testing Ms. Wagner was not participating in any formalized
rehabilitation program or exercise, and it had been two years since her attempt
to have physiotherapy treatment.  Ms. Hunt felt that Ms. Wagner had
not participated in rehabilitation to a sufficient level to optimize her
functioning.

[160]     Ms. Hunt
said that Ms. Wagner might be capable of full-time work, when her son is
more independent, if she participated in a rehabilitation program.

D.           
Dr. Martin Grypma – Orthopedic Surgeon

[161]     Dr. Grypma
is an orthopedic surgeon who examined Ms. Wagner at the request of the
defendants.  His report is dated February 15, 2012.

[162]     From his
records review Dr. Grypma concluded that as a result of the 2008 car
accident Ms. Wagner suffered a soft-tissue injury to her neck.  If she
suffered any lower back injury in that accident it likely resolved soon after
since the family doctor noted (in a report of February 27, 2009) no tenderness,
pain or limitations in that area.  The 2009 accident exacerbated her neck pain.

[163]     Based on Ms. Wagner’s
statement that the majority of her lower back pain started after her son was
born (which was more than two weeks after the second car accident), it is
unlikely that she sustained a lower back injury in that accident.

[164]     Although Ms. Wagner
described enduring neck and back symptoms, Dr. Grypma could not find any
evidence of disc herniation, nerve damage or structural injury.  His physical
examination of her neck was normal.  He said that Ms. Wagner’s subjective
complaints about her neck were not supported by objective findings.  He also
found nothing abnormal in his examination of Ms. Wagner’s left hip.

[165]     Dr. Grypma
concluded that it was more likely Ms. Wagner’s symptoms were due to
inactivity and deconditioning (Ms. Wagner told him she was “not doing
anything”), poor posture and weight gain.

[166]     Dr. Grypma
said the “natural history” of soft-tissue injuries is to heal in about two to
three months, and he would have expected Ms. Wagner to recover after both
accidents.  He expressed concern that Ms. Wagner had not had any active
rehabilitation after the two accidents, and recommended that she receive active
rehabilitation for six weeks, followed up with a three-month gym pass and home
exercise.  He concluded that Ms. Wagner likely had total disability for
one month after the 2008 accident, with partial disability for another two to
four weeks, and after the 2009 accident she was likely totally disabled for
four to six weeks, with partial disability for another two to four weeks.

E.            
Dr. Alexander Levin – Psychiatrist

[167]     Dr. Levin
is a psychiatrist who saw Ms. Wagner at the request of the defendants. 
His report is dated October 5, 2012.

[168]    
Dr. Levin noted that Ms. Wagner had some difficulty recalling
what she was thinking at the time of the 2008 accident.  He said:

There is no doubt that the motor vehicle
accident in question caused Ms. Wagner significant emotional distress and
anxiety.  However, from a clinical perspective Ms. Wagner’s emotional
response to the collision, and her behaviours following the accident, would not
suggest the presence of any acute post-traumatic stress disorder
symptomatology.

[169]     Dr. Levin
came to a similar conclusion about the 2009 accident.

[170]     Dr. Levin
noted that, despite his inquiries, Ms. Wagner did not report recurrent,
intrusive or distressing recollections of either of her car accidents, instead
describing a number of situational stressors rather than any specific
accident-related anxiety.

[171]     Dr. Levin
referred to a diagnostic manual definition indicating that the stressor for the
diagnosis of PTSD must meet two criteria: (1) it must be life-threatening or
associated with serious injury or threat to physical integrity; and (2) if must
evoke intense fear, helplessness or horror in the victim.

[172]     Dr. Levin
noted Ms. Wagner had a pre-accident history of depressive/anxiety
symptomatology that was treated through counselling.  After the birth of her
son Ms. Wagner reported emotional distress and experienced worsening of
her depressive/anxiety symptomatology, but given the complications of birth and
her son’s physical problems he considered that her “transient emotional
disturbances seem to be appropriate and did not exceed a normative
psychological reaction”.  Dr. Levin considered that Ms. Wagner’s
post-accident ability to complete her studies, obtain gainful employment and
maintain a romantic relationship did not support the presence of anhedonia
(inability to experience pleasure) or clinically significant depression.

[173]     Dr. Levin
said that Ms. Wagner has not developed any major mental illness which
would make her psychologically vulnerable in future, and her
subjectively-reported post-accident psychological/emotional disturbances did
not reach the threshold of clinical significance or psychiatric disability to
require any time off school or work.

Testimony
at Trial

[174]     Dr. Levin
said that Ms. Wagner did not mention to him the 2012 car accident or the
sexual assault incident when she was 15 years old.

[175]     Ms. Wagner
terminated the interview at the two-hour mark.  He asked her to stay longer but
she refused.  He described her as being only “superficially cooperative”
initially.

[176]     Dr. Levin
felt that Ms. Wagner did not meet one of the PTSD criteria for the second
car accident because she did not see it.  She has to have seen the actual
event, such that it causes intense horror and fear.  He felt that flashbacks of
premature labour together with thoughts of losing her child were not events
comparable to the horror of war or rape, for example.  The extent of driving
that Ms. Wagner engaged in post-accident would also mean she did not meet
the PTSD criteria.

[177]     Dr. Levin
said, however, that another criterion would be fulfilled if Ms. Wagner had
been in hospital for nine days and expressing fears for her child.

[178]     Dr. Levin
said that if the Court accepts the symptoms as described by Dr. Koo then Ms. Wagner
would meet the PTSD criteria set out in the DSM-IV, although not the PTSD criteria
in the more recent standard, the DSM-V.

IV.          
Positions of the Parties

A.           
Plaintiff

[179]     The
plaintiff submits that it is clear that the two car accidents caused significant
physical injuries, including an injury to her hip.  While the psychological
injuries present a more difficult issue, the plaintiff says the evidence
demonstrates that the fear and emotional distress she experienced in the
accidents developed into major depression, an anxiety disorder and PTSD.

[180]     The
plaintiff submits that her damages should be assessed as follows:

B.           
Defendants

[181]     The
defendants acknowledge that Ms. Wagner sustained soft tissue injuries in
the two car accidents.  They also acknowledge they are liable for the
unexpectedly severe consequences of those accidents because Ms. Wagner was
pregnant at the time of both accidents.  They say, however, that Ms. Wagner’s
assertions about the severity and breadth of her ongoing physical and emotional
symptoms ought to be considered with caution because she is not a reliable or
forthright witness.  Also, they submit that Ms. Wagner failed to take
reasonable steps to obtain treatment and engage in exercise, which allowed her
losses to accumulate.

[182]     The
defendants submit that Ms. Wagner’s ongoing physical and emotional
symptoms are attributable to other, unrelated events, including the premature
birth of her son, his serious health problems at birth, her May 2012 car
accident, the emotional impact of her son’s developmental problems, her
reactions to work-related stress and her problems with a kidney ailment and
anemia.

[183]    
The defendants submit that damages should be assessed as follows:

[184]     In
submissions, defence counsel modified his submission on non-pecuniary damages,
arguing that an award in the range of $90,000 would be appropriate.

[185]     The
defendants submit that damages ought to be reduced by 20 to 30 percent to
reflect Ms. Wagner’s failure to mitigate.

V.            
Discussion

A.           
Physical Injuries

[186]     It is
clear that Ms. Wagner suffered physical injuries in the two car accidents
that have affected her significantly.  From the first accident it is apparent
that she suffered neck and back injuries that left her sore and uncomfortable
for some time.  She lost one month of work, and on return to work she was given
lighter duties.

[187]     The second
car accident was clearly the more serious of the two.  Ms. Wagner’s car
was struck from behind at considerable speed by a large vehicle.  Although her
post-accident focus was on the health of her unborn baby she was stiff and sore
in her neck and back.  After the birth of her son Ms. Wagner found
breastfeeding difficult because she could not maintain a proper position
without pain and discomfort.

[188]     Measuring Ms. Wagner’s
degree of disability by reference to time off work is difficult here because she
was on maternity leave until May or June 2010.  She pursued further employment
training starting in September 2010 and found sitting in class uncomfortable. 
She took training as an addictions and community support worker from January to
November 2011, but found she was sore by the end of the day.  In the jobs Ms. Wagner
did after that she limited her physical activities as much as she could.

[189]     At
present, she says she has pain in her neck, lower back, left hip, left leg and
occasional migraine headaches.

[190]     Dr. Koo,
the physiatrist, concluded that the two car accidents likely resulted in, or
significantly contributed to, the following physical conditions:

a)     acute soft
tissue injuries to the neck, upper back, wrists, lower back and left hip;

b)    chronic
myofascial pain in muscle groups in the neck and shoulder areas;

c)    chronic
mechanical low back pain arising from lumbar paraspinal myofascial pain and a
painful limp;

d)    bilateral
sacroiliac joint strain, worse on the right; and

e)    myofascial pain
of the pelvic girdle muscles with “snapping hip”.

[191]     Dr. Grypma
could not find anything structurally wrong with Ms. Wagner or identify any
other objective findings supporting her subjective complaints.  He said the
“natural history” of soft-tissue injuries is that they heal in about two to
three months.  He also noted there were no hospital notes of low back
complaints and questioned whether Ms. Wagner would have suffered an injury
to her lower back in a rear-end accident.  He felt that Ms. Wagner’s
complaints were due to weight gain, poor posture and deconditioning.

[192]     I was left
with the impression that Dr. Grypma’s approach was unduly narrow. Dr. Grypma
himself noted that that paramedics who attended at the second car accident
noted low back pain, so it is not clear why he discounted that.  As to the
absence of hospital records evidencing complaints of low back pain, I am
satisfied that this issue would have been very much in the background given that
the focus of Ms. Wagner’s hospital admission was on the health, indeed the
life, of her baby.  In addition, Ms. Wagner was on mandatory bed rest, so she
would not have been moving her back very much.

[193]     In
addition, while it may be that many accident victims see their soft-tissue symptoms
abate in a few months, the courts are filled with plaintiffs whose (legitimate)
soft-tissue complaints carry on long after that.  I felt that Dr. Grypma
did not adequately account for that well-known phenomenon in considering Ms. Wagner’s
case.

[194]     By
contrast, Dr. Koo was very thorough.  I conclude that there is merit to
his interdisciplinary approach, at least to a point.  From this I conclude that
his opinions on the plaintiff’s physical injuries carry more weight.

[195]     In the
result, I am satisfied that the plaintiff has proven that the car accidents
caused a lower back injury in addition to her other injuries.

[196]     There is
an issue with the cause of Ms. Wagner’s left hip complaints, now thought
(by Dr. Koo, at least) to be a labral tear.  Ms. Wagner testified
that she had left hip pain after both accidents.  It seems to have settled down
at some point, since Ms. Wagner did not mention hip pain when she first
saw Dr. Koo in late 2011.

[197]     An MRI
done in 2013 showed a cystic lesion in the area, which was suggestive of a
labral tear.  As noted earlier, Dr. Koo said it was now possible to
conclude that some of her hip pain is likely related to the second car
accident, particularly as it related to mechanical clunking during certain left
hip manoeuvres.  However, he acknowledged in cross-examination that he could
not say the accident caused the labral tear because a tear is a process,
a weakening of an area, and it can have a gradual onset.

[198]     Although Dr. Koo
said the history he obtained was that Ms. Wagner did not complain of hip
pain until after childbirth, he also said that it would be rare that childbirth
would be the cause.

[199]     Dr. Grypma
found nothing abnormal in Ms. Wagner’s left hip when he examined her in
2012.  He doubted that a rear-end collision would cause a hip injury, saying it
was “highly unlikely”.  At trial, however, Ms. Wagner testified that she
had her left foot on the footpad on the driver’s side and that her left foot
“jammed backwards” as a result of the impact.  In his reports Dr. Grypma
did not address this as a possible mechanism of injury, and neither was it put
to him in cross-examination.  Dr. Koo did not mention it either, for that
matter.

[200]     I found Dr. Grypma
too quick to dismiss Ms. Wagner’s hip injury.  An MRI provided objective
proof of changes, perhaps damage, in the area.  Dr. Grypma said there was
nothing wrong, yet there was.  He said he doubted that the rear-end car
accident would cause a low back injury, yet I have found that it did.  He found
no objective findings supporting Ms. Wagner’s subjective complaints, yet
Janet Hunt (the occupational therapist who performed a functional capacity evaluation)
found objective evidence of diminished capacity.  These matters cause me to
question Dr. Grypma’s assertion that a rear-end accident would be highly
unlikely to cause a hip injury.  I conclude he did not adequately consider or explore
other ways by which such an injury might have occurred.

[201]     Based on a
consideration of all of the evidence on this point, I conclude that Dr. Koo’s
hip injury opinion ought to be accepted.  Accordingly, I conclude that some of Ms. Wagner’s
hip pain, particularly the “clunking” problem, was likely caused by the second
accident.

[202]     Before
leaving the subject of physical injuries it is appropriate to refer to the
evidence and findings of Ms. Hunt, who found some discrepancy, which she
described as mild, between Ms. Wagner’s reported abilities and her demonstrated
function.  For that reason Ms. Hunt concluded that Ms. Wagner’s own
reports of functional capacity should be viewed with some degree of caution.  I
would add that I was impressed with the level of professionalism and
objectivity that Ms. Hunt displayed in her evaluations and testimony in
this case.

[203]     I found
that there were similar discrepancies between Ms. Wagner’s testimony about
her physical difficulties and her actual level of functioning.  An example was
her attendance at full-time studies from January to November 2011, involving a
moderately-long commute by car, where she achieved high marks and had positive
social interactions.  This level of functioning was somewhat at odds with the
picture she painted of her various difficulties.

[204]     For these
reasons I agree with Ms. Hunt that because of those types of discrepancies
Ms. Wagner’s self-reports of functional capacity should be viewed with
caution.

[205]     There are
some other credibility issues with Ms. Wagner.  I agree with defence
counsel that Ms. Wagner in several instances demonstrated a tendency to
manage or restrict the information given to the medical experts.  I noted the
following: (1) she did not mention the third motor vehicle accident to either Dr. Ganesan
or Dr. Levin, and she understated the effects of that accident to Dr. Koo;
(2) she left the appointment with Dr. Levin before it was completed,
citing excuses that I conclude were not genuine; (3) despite her assertion that
she is now highly anxious in cars, to the point of getting a racing heart and
sweaty hands, she said she was merely “spooked” by the third accident, a
reaction that seems disproportionately mild given her claims arising from the
subject accidents and the fact that she lost two weeks of work (covered by
WorkSafe BC) as a result of the third accident; and (4) her evidence about
anxiety while driving is also contradicted by the actual amount of driving she
does, and by her boyfriend’s evidence that one of the things they like to do
together is go for drives.

[206]     I agree as
well with the defence submission that Ms. Wagner’s credibility did not
fare well on the matter of her application for subsidized housing.  She claimed
she needed subsidized housing because her basement suite was infested with rats
and mould, but neither her former boyfriend nor her mother testified about
having health concerns about the suite (although her mother mentioned hearing
rats in the roof).

B.           
Psychological Injuries

[207]     This is
the more difficult issue.  Ms. Wagner’s psychological situation is very
complicated and she has had many difficult life events and stressors in her
life.  These include:

a)    Ms. Wagner’s
very difficult relationships with her mother, her father and her sister.  She
has cut off all contact with both her father (in 2013) and her sister (in
2009), the former due to his drug problems and the latter due to other conflict;

b)    the incident of
inappropriate sexual touching that occurred five years prior to the first
accident, which made her feel angry at and abandoned by her mother, caused her
to be assisted by a counsellor and prompted her to leave her mother’s home for
a time and live with her sister;

c)    she broke up
with Daxtyn’s father because he was unfaithful, and this left her upset at the
prospect of Daxtyn not having a father;

d)    in January 2008
she quit her job as a dental receptionist, her first career-type job, due to
conflict with the office manager (and she was told she could not work through
her notice period because they did not trust her to deal with money or insurers);
this was in addition to an earlier (August 2007) conflict at that same
workplace that affected her so much that she sought medical help due to
distress, migraines and inability to sleep, and she was off work for a week;

e)    she was fired
from her next receptionist’s job; unfairly, she says, but still she was fired;
and

f)      she
then reverted to working as a server in a restaurant, a job she had done in her
teens.  She then collected EI and went on social assistance; she was in such difficult
financial circumstances leading up to the birth of her son that she needed
support from the Food Bank to get by.

[208]     Of the
events listed above, only her estrangements from her father and sister occurred
after both accidents, though it is clear that her father’s drug issues had been
a problem for a considerable time prior to the ultimate severing of all
contact.  Her falling-out with her sister took place in the same month as the
second car accident.

[209]     Then the
two car accidents occurred.  I am satisfied that both accidents caused Ms. Wagner
to have fears for the health of her unborn baby.  The first caused some
distress, but the second was a great deal more traumatic for Ms. Wagner. 
Still, the trauma she described for the second car accident was much less
serious than the trauma she described surrounding the birth of her son and its
aftermath.  In saying this I do not mean to say that in the immediate aftermath
of the second car accident Ms. Wagner did not suffer great distress and
fears for the safety of her unborn baby, because clearly she did, but it was also
clear from her testimony that the post-childbirth crisis was by far the most
traumatic of these three events.  I am also satisfied that the post-childbirth
crisis was made more traumatic for Ms. Wagner by the prior car accidents
because of the fears and anxiety those accidents had created.

[210]     It is
important to note there is no medical evidence showing that Daxtyn’s serious
health issues at birth or those arising later, or any of his developmental or
other difficulties, are in any way related to either of the two accidents. 
Plaintiff’s counsel urged this court to find that Daxtyn’s premature birth was
caused by the second accident, submitting that this is the only inference that
can reasonably be drawn, but I decline to do so.  This is a matter that
requires expert evidence.

[211]     Ms. Wagner’s
life difficulties and stressors continued after the two accidents.  They
included:

a)    being a single
mother with a newborn, then infant, then a toddler;

b)    having “emotional
issues” about her son after he was born, including not wanting anyone to touch
him;

c)    constantly
worrying that there was something wrong with her son; fearing that he was
developmentally delayed, even “retarded”; later, his misbehaviour at daycare
prompted complaints about him that increased her anxiety and worry;

d)    worrying obsessively
over Daxtyn’s safety and of things that might happen to him; even now, with a
more stable life and a long-term relationship, she worries about her son’s
health;

e)    feeling frustration
and stress dealing with her accident claims on top of caring for her son;

f)      being
in an on-off relationship for several years with a boyfriend she described as
“abusive and manipulative”; this was the basis for asserting in her application
for subsidized housing that she was “fleeing domestic violence or abuse”;

g)    living for two
years in a basement suite she portrayed as rat-infested and mouldy;

h)    ending all contact
with her father and sister;

i)      being
in a further car accident in May 2012 while working for the Katzie First
Nation, which she said set her back one or two months;

j)      having
stresses associated with her current employment, as her job may involve rude
and angry clients, conflict, and a heavy workload; she felt under “terrible
pressure” every day to deliver her work and was constantly thinking it was too
much to handle;

k)    having problems
with her kidneys arising in October 2012, which caused her back pain, loss of
sleep and other symptoms, and subsequent medical investigations into those
problems continuing into 2013;

l)      taking
time off work in 2013, on recommendation of her family doctor, due to feeling
overwhelmed, of which work stress was a part; during that time she felt
fatigued and had low energy; and

m)  being diagnosed in 2013 with
chronic anemia.

[212]     I turn to the
expert evidence concerning Ms. Wagner’s psychological issues.  In his
reports Dr. Koo emphasized that he deferred to his colleagues in
psychiatry for “a more qualified analysis” of the relative contributors to Ms. Wagner’s
depressive symptoms and discussion of treatment options.  In his testimony Dr. Koo
was less deferential and was instead relatively assertive about his expertise
to opine on psychological matters.  I agree with the defence contention that Dr. Koo’s
exploration of Ms. Wagner’s social and psychological background left some
significant gaps or issues that were inadequately canvassed.  For example, he
seemed to discount symptoms commonly associated with new motherhood (disordered
sleep, feeling overwhelmed), instead using these as a basis for his
psychological conclusions, and he did not ask about Ms. Wagner’s
estrangement from her immediate family members or explore Ms. Wagner’s
claim to have been “fleeing domestic violence or abuse” or living for years in
housing that she felt was hazardous to the health of her son and herself. 
These matters cause me to conclude that Dr. Koo is correct that the
analysis of causal factors in this case is better left to psychiatric
specialists.  Accordingly, I give much less weight to Dr. Koo’s opinions
on Ms. Wagner’s psychological issues than I do to the opinions of the
psychiatrists.

[213]     Leaving
aside for the moment those matters just discussed, Dr. Koo’s opinion was
essentially that: (1) Ms. Wagner’s psychological problems are
“multi-factorial”, which I took to mean the result of many different factors;
(2) while he felt the car accidents were enough to cause Ms. Wagner’s
depression, other factors could contribute to it and possibly cause it; and (3)
her current state of functioning likely combines all three car accidents.

[214]     Dr. Levin
felt that Ms. Wagner had not developed any major mental illness (such as
major depressive disorder or PTSD) because after the car accidents she was able
to embark on and complete a program of studies, maintain relationships and
obtain employment.  He acknowledged that Ms. Wagner had significant emotional
stress and anxiety as a result of her car accidents but said these did not
exceed a normative reaction to these distressing events.  He also rejected a
diagnosis of PTSD because she did not have recurring, intrusive thoughts about
either car accident.  The distressing recollections she described to him were
of the events after the second accident, not of the accident itself.

[215]      My
impression is that Dr. Levin took an unduly narrow view of PTSD and its
causes, in a general sense.  For example, he rejected the suggestion that PTSD
could occur in a person who did not witness the actual collision, which was the
case here since Ms. Wagner’s vehicle was rear-ended without warning.  Dr. Ganesan
thought otherwise; he said a pregnant woman could well develop PTSD as a result
of traumatic anxiety over the safety of her baby.  I felt that Dr. Ganesan’s
view was the more compelling one.  I also felt that Dr. Levin overstated Ms. Wagner’s
post-accident functioning.  He emphasized that she was able to complete a
course of studies (which is true), maintain one relationship (but she severed
other ones) and to secure gainful employment (but only part-time), but he did
not seem to adequately take into account that she has struggled a great deal while
doing these things.

[216]     I thought
as well that Dr. Levin overstated Ms. Wagner’s problems during her
teenage years, describing these as a “prolonged period of depressive/anxiety
symptomatology … lasting most of her teenage life”.  Although she had two
periods of intense crisis, the evidence at trial did not support Dr. Levin’s
description of psychological problems lasting most of her teenage life.

[217]     In his
reports Dr. Ganesan concluded that Ms. Wagner suffers from PTSD,
generalized anxiety and major depression.  He made no attempt to attribute a
cause or causes for these disorders between the many stressors and difficult
events in Ms. Wagner’s life.  He, too, was not informed of some important
stressors or other factors in Ms. Wagner’s life, such as her diagnosis of
chronic anemia, her relationship with an abusive and manipulative boyfriend or Ms. Wagner’s
claim of living for two years in a home amidst rats and mould.  He acknowledged
that Ms. Wagner’s concerns about her son’s health and development are a
considerable source of anxiety for her and that these are an obvious
contributing factor to her mood disorder.  As a parenthetic comment I note that
in Dr. Ganesan’s December 2012 report he said Ms. Wagner’s concerns
were now less about her son’s physical health and were now focused on her fear
that her son was, in her words, “retarded”.  Importantly, Dr. Ganesan said
Ms. Wagner’s concerns for her son’s health and development, on their own,
had the potential to develop into PTSD, although “whether it would be likely
would be difficult to say”.

[218]     In
summary, Dr. Ganesan said Ms. Wagner’s problems are multi-factorial
in origin.  These factors include a traumatic birth, poor housing, worrying
about her child, an abusive relationship, and other factors.  From the context
of his testimony on that point (and evident from his report of December 7,
2012), it is clear that one of the most significant “other factors” is the
second car accident.  He could not say that Ms. Wagner would likely have
had the same problems but for the car accidents because all her issues have to
be looked at as a global formulation.  Similarly, he could not say if the
traumatic birth of her child would have caused her these problems in the
absence of the car accidents.

[219]     Because of
my conclusions, expressed earlier, on the validity and weight of Dr. Levin’s
opinions, I prefer the opinions of Dr. Ganesan.  Accordingly, I am
satisfied that Ms. Wagner suffers from a generalized anxiety disorder,
PTSD and major depression.

[220]     Having
considered all of the evidence on Ms. Wagner’s psychological issues, I
conclude, as did Dr. Ganesan, supported by Dr. Koo’s less-qualified
opinion, that Ms. Wagner’s current psychological difficulties are
multi-factorial in origin; that is, they are the result of a number of
unfortunate events and stressors in Ms. Wagner’s life, including the two
car accidents in question.  I do not see the non-accident events as independent
intervening events, as urged by the defendants.  Her psychological injuries therefore
are not divisible between these events.

[221]     Put
another way, there are a number of unfortunate life events and stressors that
have caused Ms. Wagner’s psychological problems.  I am satisfied that the
two car accidents comprise two of the (perhaps) many causes of her present
psychological condition.  This is sufficient to impose liability on the
defendants for the whole of the loss: Athey v. Leonati, [1996] 3 S.C.R.
458.

[222]     There is
an additional basis for my conclusion that the injuries are not divisible
between the various events in this case.  Although the plaintiff did not
establish a causal connection between the car accidents, on the one hand, and
the subsequent premature birth and serious health issues of the baby, on the
other, the car accidents injured Ms. Wagner while she was pregnant and,
particularly with the second accident, caused her to have heightened concerns
and fears for the health of her baby.  The three events (the two car accidents
and the baby’s birth) are connected insofar as the post-birth events were all
the more traumatic because of Ms. Wagner’s pre-birth fears for the health
of her baby, which fears were caused by the two car accidents.

[223]     My
conclusion on indivisibility of injuries does not end the analysis.  Where there
is a measurable risk that the other events would have caused the loss anyway,
then that pre-existing risk of loss is to be taken into account in the
assessment of damages: Moore v. Kyba, 2012 BCCA 361, at para. 43. 
This is very difficult to analyse and assess in the present case because the
medical experts did not approach the issue in a manner that was readily
translatable to this sort of legal analysis.  Dr. Levin said that Ms. Wagner
did not develop any major psychological condition and so he did not discuss
causation or measurable risk.  Dr. Koo deferred to psychiatric specialists
on the matter of causation of major psychological conditions, but in
cross-examination he said that the life and stress factors other than the car
accidents could contribute to Ms. Wagner’s depression and possibly cause
it.  Dr. Ganesan did not address causation in his reports, but in
cross-examination he said that looking at just Ms. Wagner’s concerns for
her son’s health on their own there would have been, at the very least,
adjustment difficulties for Ms. Wagner and these had the potential to
develop into PTSD as a result, though whether it would be likely was difficult
to say.

[224]     Ms. Wagner
has had many difficult events and stressors in her life aside from the two car
accidents in question, including the extreme trauma surrounding her son’s
birth, all of which I described earlier.  Ms. Wagner did not reveal all of
these events and stressors to the medical experts.  Based on the opinions of Dr. Koo
and Dr. Ganesan and on the evidence generally I conclude that there is a
measurable risk that Ms. Wagner would have developed her psychological
conditions in the absence of the two car accidents.  I assess this risk at 25%.

C.           
Non-Pecuniary Damages

Summary
of Injuries

[225]     Ms. Wagner
was 20 years old at the time of both car accidents.  She suffered injuries to
her lower back, neck and left hip.  These have become chronic.  Her injuries,
in combination with the distress and trauma of the car accidents and other
events in her life have led to persistent symptoms of anxiety disorder,
depression and PTSD.  Dr. Koo, whose opinion on this point I accept, said
that the persistence of myofascial pain means that some degree of chronicity is
probable and spontaneous cure or resolution is unlikely.  He said that treatment
might ameliorate the condition but would not cure it, and that Ms. Wagner
would likely continue to remain at elevated risk for re-injury and symptom
aggravation.

[226]     I repeat
my earlier conclusion that, to at least some extent, Ms. Wagner’s reports
of her physical difficulties are at odds with her actual level of functioning. 
I do not suspect she is being untruthful, but instead I conclude that she sees
herself as somewhat more disabled than she actually is.

[227]     The
outlook for her psychological problems is harder to discern.  Dr. Ganesan
recommended a combination of approaches, including medication, behavioural
therapy and counselling, and he seemed to suggest at least some prospect for
recovery.  Although less qualified to address these issues, Dr. Koo opined
that the persistence of her symptoms despite medication trials and her
“inability to follow through with counselling” suggest a poor prognosis.  He
recommended ongoing psychological counselling, psychiatric review and
psychotherapy sessions.

Failure
to Mitigate

[228]     It is convenient
at this point to address the defendants’ argument that the plaintiff has failed
to mitigate her damages.  At various times Ms. Wagner has been encouraged
to exercise or been referred for therapy but she has failed to follow these
recommendations.  She quit visiting a kinesiologist because she “felt like an
idiot”; she quit yoga because she was self-conscious; she received funding for
physiotherapy but felt “overwhelmed” to find times to attend physiotherapy
despite the fact that her son was in daycare; she quit psychoactive medications
because she felt they were “screwing up my insides”; and she has failed to do
other exercise and activities because of symptom aggravation.  As to the last
matter the defendants point out that Ms. Hunt, the occupational therapist,
observed that Ms. Wagner has a poor understanding of hurt versus harm.

[229]    
On the mitigation issue the defendants referred to the opinions of three
of the experts.  For the reasons expressed earlier I am unable to put much
stock in the opinion of Dr. Grypma, who found nothing structurally wrong
with Ms. Wagner and put her symptoms down to weight gain and
deconditioning.  Since I have not accepted his premise I do not accept his somewhat
simplistic opinion that Ms. Wagner will do well if she exercises,
stretches and loses weight.  Dr. Koo felt that it is possible that
these rehabilitative activities might have made her better.  As for Dr. Ganesan,
he said the following in his report of December 7, 2012:

I also discussed with her weight
gain secondary to medication as a potential side effect.  She needs to observe
this, and if necessary she could benefit from a dietary consultation and a
personal trainer to help her in reducing weight and increase her activities,
which would contribute to building her own strength, improve her self-esteem,
and make her more active, which would have a positive impact on her emotional
well-being.

[230]     In reply,
counsel for the plaintiffs noted that the test is whether the recommended
treatment would have ameliorated the symptoms: Gregory v. ICBC,
2011 BCCA 144, at para. 56.

[231]     I agree that
Ms. Wagner has not been diligent in following treatment recommendations. 
I find that Dr. Koo’s opinion does not meet the test set out in Gregory
v. ICBC as he spoke only of the possibility of symptom improvement.  Dr. Ganesan’s
opinion, quoted above, does meet the test, although I note that his opinion was
limited to Ms. Wagner’s emotional well-being.

[232]     There is,
however, another problem with the defendants’ mitigation argument because the circumstances
suggest Ms. Wagner’s lack of diligence may well be part of her depressive
symptoms.  Certainly, the defendants have not shown that it is not a
consequence of depression, and they have the burden of proof on this issue.  A
plaintiff cannot be found to have failed to mitigate damages where that failure
stems from a condition that the defendants themselves have caused, at least in
part.

[233]     Accordingly,
I conclude the defendants have failed to meet their burden of proof on this
issue.

Assessment
of Non-Pecuniary Damages

[234]     In arguing
for an assessment of non-pecuniary damages in the range of $125,000 to $135,000,
the plaintiff cited the following cases: Unger v. Singh, 2000 BCCA 94; Charlebois
v. Vandas, 2004 BCCA 356; Morena v. Dhillon, 2014 BCSC 141; Dunne
v. Sharma, 2014 BCSC 1106; Slocombe v. Wowchuk, 2009 BCSC 967; Zysltra
v. Hughes, 2001 BCCA 326; Marois v. Pelech, 2007 BCSC 1969, affirmed
2009 BCCA 286; Eccleston v. Dresen, 2009 BCSC 332, Olson v. Ironside,
2012 BCSC 546; Murphy v. Jagerhofer, 2009 BCSC 335; and Shapiro v.
Dailey, 2012 BCCA 128.

[235]     In arguing
for an assessment of non-pecuniary damages in the range of $90,000 the
defendants cited White v. Gehricke, 2013 BCSC 377; Moritz v. Schmitz,
2013 BCSC 668; Rezaei v. Piedade, 2012 BCSC 1782; and Werner v.
Ondrus, 2013 BCSC 100.

[236]     Some of
the cases cited by the plaintiff involved appeals of jury awards or were appeals
where the awards of non-pecuniary damages were not challenged.  I found these
cases to be of limited utility.  Of the cases cited by the plaintiff, the most
helpful were Dunne v. Sharma, Marois v. Pelech, Eccleston v.
Dresen, Olson v. Ironside, Murphy v. Jagerhofer and Shapiro
v. Dailey.

[237]     As for the
cases cited by the defendants, in general they involved injuries or effects
that were less serious than I have found in this case.  Defence counsel
conceded as much when he said that non-pecuniary damages in this case ought to
be assessed in the range of $90,000.  Another case, Moritz v. Schmitz, I
found unhelpful as a comparator because the plaintiff in that case had
substantial psychiatric difficulties prior to the accident.

[238]     In
assessing the appropriate award for non-pecuniary damages I have considered the
various factors set out in Stapley v. Hejslet, 2006 BCCA 34.

[239]     I assess non-pecuniary
damages in the amount of $110,000.

D.           
Past Loss of Income

[240]     The
plaintiff submits that in the pre-trial period she lost both income and the
capacity to earn income.  Based on her 2008 income of about $20,000 the
plaintiff submits that, except for her school year (2011) and the time she was
on maternity leave, she ought to be awarded an amount that reflects that
income-earning capacity for all years up to trial.  Her actual earnings for
each year were less than that average.  The total claim is $25,000.

[241]     The
defendant notes that: (1) the babysitting income the plaintiff received from
her sister would have ceased after their falling-out in April 2009; (2) the
plaintiff does not have a compensable loss during the time of her maternity
leave; (3) the plaintiff would not have worked during both periods of her
studies (September 2010 to November 2011) given her child care responsibilities;
(4) lost income attributable to the 2012 accident is not compensable in this
action; and (5) lost income in 2013 due to Ms. Wagner’s six-month leave of
absence is not compensable because it was due to her kidney problems and
anemia.  For the acknowledged periods of loss the defendants calculate a total
income loss of $6,700.

[242]     I find the
plaintiff’s approach neglects some of the factors legitimately raised by the
defendants, though on my analysis the figure urged by the plaintiff seems to
still be on the low side.  I find that the income attributed to the plaintiff
by the defendants understates Ms. Wagner’s income; for example, her probable
income from restaurant tips.  I also do not accept the defendants’ contention
that the six-month leave of absence was due to kidney and anemia problems.  Ms. Wagner’s
evidence on this point was that she took this leave of absence on the advice of
her doctor because in January 2013 she “took a really bad turn”, both
emotionally and physically, and she was referred to a treating psychiatrist
during that time.  While her kidney problems were being investigated at this this
time, and anemia was diagnosed later, I conclude that her psychological
problems and her other physical problems were the predominant reasons why she
took time off work.

[243]     I
therefore conclude that the periods of income loss are these: (1) one month
after the first accident; (2) a reduced capacity for work from mid-January 2009
to the beginning of her maternity leave in April 2009; (3) June and July 2010,
after Ms. Wagner left the tattoo parlour; (4) six months in 2013, when Ms. Wagner
took leave from her employment; and (5) June 2012 to present, where Ms. Wagner
has declined work shifts due to accident-related causes.

[244]     The
quantification of this loss does not admit of arithmetic calculation, though
some very general arithmetic assists somewhat in the assessment.  From this
approach I have concluded that an appropriate assessment of the plaintiff’s
past loss to the date of trial is $28,000.  From this must be deducted the 25
percent risk that Ms. Wagner would have developed her psychological
problems in any event as a result of various other events, the most serious of
which was the trauma of her son’s birth and its aftermath.  This reduction results
in a net assessment of $21,000 under this heading of damages.

[245]     As this
figure is not net of income taxes, I leave it to the parties to work out the
appropriate net figure, with leave to address this matter further if need be.

E.            
Loss of Future Earning Capacity

[246]     In Perren
v. Lalari, 2010 BCCA 140, the court reviewed various authorities dealing
with loss of future earning capacity and concluded as follows:

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

[Emphasis in original.]

[247]     The
plaintiff submits that there is a real and substantial possibility that she
will suffer a loss of earnings in future.  She says the evidence shows she is
only capable of part-time work, and she has been passed over for a better job
because of her absentee record and her employer’s perception of her physical
and emotional well-being.

[248]     The
plaintiff quantifies her claim for loss of future earning capacity on an
earnings basis rather than on the basis of a lost capital asset.  She maintains
that she had the capacity to become a social worker, with associated lifetime
earnings of $1,605,000; instead she will remain a part-time social services
worker (i.e., not a degreed social worker), with a reduction of 40% in amount
of work hours versus full-time, plus a further reduction of $4 per hour to
reflect, it appears, less opportunity for advancement.  The earnings associated
with the latter scenario total $508,000, resulting in a lifetime income
differential of $1,097,000.  To that latter figure must be added 10% for
non-wage benefits for a total lifetime income differential of $1,207,000.  Counsel
presented an alternative scenario based on the differential between lifetime
incomes of full-time social services workers ($1,053,000) and half-time social
services workers together a reduction in earnings of $4 per hour ($423,000),
which results in a differential of $630,000.

[249]     Based on
these scenarios the plaintiff submits that an award in the range of $500,000 to
$600,000 would be appropriate.

[250]     The
defendants have a variety of criticisms of this approach.  They reject the
submission that the plaintiff had a strong attachment to the paid labour force
such that this loss ought to be based on full-time, full year earnings.  They
submit that the evidence does not show that the plaintiff would have obtained a
university degree in social work had the accidents not occurred.  Most
importantly, the defendants submit that the plaintiff is capable of full-time
employment but has elected to work just two to three days each week.  They say
her present employment is consistent with her pre-accident functioning as well
as her new responsibilities as a mother.

[251]     With those
considerations in mind the defendants submit that damages for future loss of
income-earning capacity ought to be assessed in the range of $25,000 to
$75,000.

[252]     I accept
that the plaintiff has shown a real and substantial possibility that she will
suffer a loss of earnings in future.  At the present time she is not capable of
full-time work, and this is likely to continue for some time, perhaps even a
long time.  The evidence also indicates that she is at elevated risk for
re-injury and symptom aggravation, either of which might result in time lost
from work.

[253]     I conclude
that the earnings approach is not appropriate in this case.  The plaintiff’s
employment path was not sufficiently clear, and the contingencies are too
numerous, for the earnings approach to be adopted.

[254]      If the
future loss cannot be measured in a pecuniary way, as in the present case, the
proper approach is to assess the loss as a form of capital asset by considering
the factors set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.), endorsed by the Court of Appeal in Kwei v. Boisclair (1991), 60
B.C.L.R. (2d) 393.  In Brown v. Golaiy the court said the proper inquiry
is whether:

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

b)    the plaintiff is
less marketable or attractive as an employee to potential employers;

c)    the plaintiff
has lost the ability to take advantage of all job opportunities which might
otherwise have been open to her, had she not been injured; and

d)    the plaintiff is
less valuable to herself as a person capable of earning income in a competitive
labour market.

[255]     From the
evidence I am satisfied that Ms. Wagner meets all of these requirements. 
The real issue is the extent of the loss.

[256]     I make
several conclusions and observations relevant to the quantification of this
loss.  First, I conclude that it is unlikely that, had the accidents not
occurred, Ms. Wagner would have embarked on and completed a four-year
degree program in social work.  To begin with, she did not have the
prerequisites for university admission.  Her life circumstances changed
considerably with the birth of her son.  Although she spoke of following the
example of her sister, who completed a legal assistant program while working at
the same time, a degree program (plus the additional time needed to complete
the prerequisite courses) is a substantially more daunting endeavour.

[257]     I am also
not persuaded that the plaintiff’s work history demonstrated a particularly
strong attachment to the labour force.  Instead, it appeared to be typical for
a person of her age, leaving aside the two significant employment setbacks in
that history.  Accordingly, I am not persuaded that she would have worked
full-time every year until retirement, and I conclude that ordinary labour
market contingencies would apply (according to the economist, Mr. Carson,
this reduces the present value of future earnings by 20%).  I conclude that it
is more likely that, but for the accidents, she would have worked less than
full-time for at least some periods in her working life.

[258]     Finally, I
do not accept that the plaintiff’s capacity for work is or will be limited to
just 40% – 50% of full-time work until age 65.  In 2011 she managed full-time
studies which involved a moderately long commute.  In 2012 she was working an
average of three days a week, with occasional shifts in addition to those.  She
applied for a 30-hour a week position, which caused her some concern that she
was not up to it, but nonetheless she thought enough of her work capacity that
she applied for the position.  Since a full-time position at her place of
employment is 37.5 hours per week, 30 hours per week is just 20% less than
full-time, considerably under the 40% – 50% reduction on which her submissions
were based.

[259]     I accept
that there is the prospect that Ms. Wagner will indeed complete a degreed
social worker program, a chance that, but for the accidents, she would have
worked work full-time without abatement until she retired, and that her physical
and psychological difficulties will restrict her to just 40% – 50% of full-time
work for the entirety of her working life, or even some portions of it. 
However, these are the very sorts of uncertainties that make an earnings
approach unsuitable in this case.  Instead, I will include these as factors
(and factors that will tend to increase the award) in my assessment of the
quantification of the capital asset she has lost.

[260]     Using Mr. Carson’s
figures as a very general guide and applying the various factors discussed, I
assess damages for lost future earning capacity at $180,000.  This must be
reduced by the 25% chance that Ms. Wagner would have developed her long-term
problems in any event, resulting in a net assessment of $135,000.

F.            
Cost of Future Care

[261]     The
plaintiff claims $20,000 for the cost of future care, based primarily on the
recommendations of Ms. Hunt as set out in her 2012 report.  Under this
same general heading the plaintiff also claims $45,000 for loss of homemaking
capacity.  The future care costs referred to by Ms. Hunt include costs for
psychological counselling, occupational therapy consultations, physiotherapy or
an active rehabilitation program, home exercise equipment, a gym membership,
symptom management treatments (e.g., massage therapy), housecleaning, child
care support to enable the plaintiff to attend exercise or other programs,
adaptive aids and ergonomic equipment and medication.  I will address the
housecleaning claim later in this section when I discuss the claim for loss of
homemaking capacity.

[262]     The
defendants say that the cost of future care award should be minimal at best (no
more than $2,000) because Ms. Hunt’s report is somewhat dated and has been
overtaken in some respects by subsequent events.  The plaintiff has now undergone
counselling, she has joined a gym, a workplace assessment is not necessary, and
rehabilitative treatments would be unreasonable given that it is five years or
more after the second car accident.

[263]     The dated
aspect of Ms. Hunt’s report does indeed make the assessment of this aspect
of the claim more difficult.  To refer to just one example, I do not have an
accurate idea of the current medications Ms. Wagner is taking.  In his
2014 report Dr. Koo said that given her kidney issues, medication should
be “de-emphasized” and pain management approaches like massage therapy
“re-emphasized”.  He saw an ongoing need for the latter.  He also recommended
psychotherapy sessions “until maximal psychological improvement is felt to have
occurred”, with a contingency for further sessions in the event of
psychological relapse.  Dr. Ganesan also recommended psychotherapy.  The
amount of psychotherapy recommended by Dr. Koo (“ongoing”) and Dr. Ganesan
(12 to 18 months) seems to be much more than the 10 to 20 sessions Ms. Hunt
proposed.

[264]     Based on
the evidence as a whole, I am satisfied that the plaintiff has shown a future
need for (1) psychotherapy; (2) passive treatments for occasional symptom
relief; (3) some medication; (4) an occupational therapy consultation for the
reasons and purposes described by Ms. Hunt; and (5) some ergonomic
equipment.  I note that the counselling Ms. Wagner has taken to date is
not psychotherapy, so this recommendation of both Dr. Koo and Dr. Ganesan
has not yet been met.  The personal training revealed in her special damages
claim seems to largely meet Ms. Hunt’s recommendation for an active
exercise program, so this is not a future need.  The same applies to Ms. Hunt’s
recommendation for a one-year gym membership, as this too is already reflected
in the claim for special damages.

[265]     Adopting
the same general or robust approach used by the parties, I assess future care
costs at $10,000, of which the largest component is the cost of psychotherapy,
which I assess at $5,000 based on 30 sessions.

[266]     The other
item claimed under this heading is loss of homemaking capacity.  The plaintiff
says her homemaking capacity has been severely diminished.  The defendant says
this has not been proven and the plaintiff and her partner (Mr. Dembowski)
have simply divided household duties to suit their interests and capabilities.

[267]     Ms. Wagner
testified that she cooks dinner some nights (other nights Mr. Dembowski
does it, or they order food), she does the dishes sometimes, she does the
laundry “in spurts”, and she cleans the bathroom and furniture.  Mr. Dembowski
does the heavier work, such as cleaning the bathtub, vacuuming, washing the
floor and changing the beds.  She said she could not manage the chores if Mr. Dembowski
was not there to help.  Mr. Dembowski said that Ms. Wagner is
primarily responsible for looking after Daxtyn, which seems to lend some support
for the defendants’ contention that the couple has merely divided household
duties in a particular way.

[268]     I am
satisfied that Ms. Wagner has shown she has suffered a loss of homemaking
capacity.  Put at its simplest, Ms. Wagner is now less able to carry out
ordinary housekeeping tasks.  While it is true that the couple has divided the
household duties to some extent, it is also the case that Ms. Wagner
cannot do heavier household tasks without assistance or without resulting pain
and discomfort.  Her capacity in this regard is not as diminished as she says,
however, and does not approach the 10 hours per month at $20 per hour for the
next 20 years on which her $45,000 claim is based.  I conclude that half those
hours over 10 years is much closer to the mark.

[269]     I assess
loss of homemaking capacity at $10,000.

[270]     The total
of the two amounts under this heading is $20,000.  To this I apply the 25%
reduction to reflect the risk that Ms. Wagner would have developed her
long-term symptoms in any event, which results in a net award of $15,000.

G.           
In Trust Claim

[271]     The
plaintiff seeks an in trust award for the assistance provided by her mother and
grandmother in the post-accident period.  The amount claimed is $10,000, based
on an hourly rate of $20 per hour, 6 hours a day for 90 days.  The defendants
acknowledge the assistance provided by these relatives but say that the award
should be in the range of $3,000 to $5,000.

[272]     I agree
that an in trust award is appropriate, but I conclude that assistance after
Daxtyn’s birth would likely have been required, or provided in any event, even
if the accidents had not occurred.  I accept that more assistance was required
than would otherwise have been the case, and I also note the mother and
grandmother provided assistance when bed rest was ordered after the second
accident and before Daxtyn’s birth, so this is purely accident-related.  For those
reasons I consider the sum of $4,000 to be the appropriate amount for this head
of damages.

H.           
Special Damages

[273]     The
plaintiff seeks recovery of amounts totalling $8,336.50 that were paid for
physiotherapy and other treatments, medication, counselling, mileage, and so
on.  The largest amounts are for MRIs of Ms. Wagner’s hip ($3,600.00),
counselling ($945.00), physiotherapy and massage therapy ($1,051.00) and a
fitness membership ($1,147.25).

[274]     Very
little time was spent by either party on special damages.  I note the defendants’
position was that special damages ought to be allowed in the range of $7,000 to
$8,336.50; in other words, they agreed that all or most of the expenses ought
to be allowed.  I note as well that the summary of special damages (Ex. 2, Tab
40) ends with the following statement: “ICBC may have reimburse[d] some
invoices referenced”.  That statement leaves the Court in the unsatisfactory
position of not knowing what amounts might already have been reimbursed.  For
this reason I conclude that I must leave it to the parties to work out the
precise amount, with leave to speak to the issue if need be.

[275]     To assist
the parties in their discussions I make the general comment that the expenses
appear reasonable in general, with one minor exception: the claim for gas
(three amounts totalling about $65.00), which does not seem to be justified,
particularly given that the plaintiff also claims amounts for mileage.

VI.          
Summary and Conclusion

[276]     I award the
following damages to the plaintiff:

[277]     In
addition to those amounts, there will be an award for special damages in an
amount to be determined, with leave to the parties to address this matter in
the event of disagreement on the issue.  As noted earlier, the difficulty in
fixing a specific amount for special damages is that the evidence indicates some
of the claimed amounts may already have been paid.

[278]    
The plaintiff will have her costs unless there are matters the parties
wish to bring to my attention.

“Blok
J.”