IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151110

Docket: M126657

Registry:
Vancouver

Between:

Tanja Hinder

Plaintiff

And

Yellow Cab Company
Ltd. and
Sukhdev Singh Pannu

Defendants

Before:
The Honourable Madam Justice E.A. Arnold-Bailey

Reasons for Judgment

Introduction

[1]           
Tanja Hinder (“the Plaintiff”) is suing the Yellow Cab Company Ltd.
(“the Defendant Company”) and Sukhdev Singh Pannu (“the Defendant Driver”) for
damages in relation to injuries she sustained in a motor vehicle accident (“the
accident”) that occurred on December 16, 2010 in Vancouver, BC.

[2]           
The accident occurred in morning rush hour as the Plaintiff was
travelling in her vehicle in the southbound curb lane on Granville Street and
the Defendant Driver was attempting a left turn across the three southbound
lanes of traffic onto a side street, Laurier Avenue, when he drove into her
lane of travel and their vehicles collided. The Defendant Driver was driving a
taxi cab belonging to the Defendant Company.

[3]           
The Plaintiff is a talented interior designer, who was 29 years old at
the time of the accident and 33 years old at the time of trial. She was an avid
amateur mountain-biker before the accident, so skilled that she likely could
have become a professional. After the accident the Plaintiff experienced
headaches, stiffness in her neck that extended into her shoulder and pain in
her upper and lower back. She also had pain in the side of her right leg and
her right knee was bruised. The Plaintiff’s soft tissue injuries resolved after
several months, except for the pain and discomfort in her neck and frequent
debilitating headaches that she claims are due to the accident and continue to
the present day.

[4]           
Since the accident the Plaintiff has resumed mountain-biking at a very
challenging level, although she testified that it is less intense than prior to
the accident, that she does much less of it during a typical day and goes out
much less often. She has diversified her sports interests to include other,
lower impact activities.

[5]           
In this case both liability for the accident and quantum of damages are
at issue as the Defendants submit that the Plaintiff is liable for the accident
or at least contributorily negligent, insofar as she overtook other vehicles on
the right when it was unsafe to do so. The Defendants also dispute the extent
of her injuries and the quantum of damages to be attributed to them.

The Issues

[6]           
Regarding the issue of liability, the Plaintiff submits that the
Defendant Driver is solely liable for the accident as he was making a left turn
across three lanes of traffic and failed to check the third or curb lane
adequately, or at all, before entering it when the Plaintiff’s vehicle
constituted an immediate hazard pursuant to s. 174 of the Motor Vehicle
Act, R.S.B.C. 1996, c. 318 [MVA]. On the other hand, the
Defendants submit that the Defendant Driver fulfilled his obligation to make
his left turn safely or, alternatively, if the Defendant Driver failed to yield
the right of way to the Plaintiff, she was contributorily negligent by failing
to brake or slow when passing stopped vehicles on their right, contrary to the
obligation imposed by s. 158 of the MVA.

[7]           
The Plaintiff seeks damage awards for: non-pecuniary damages for pain
and suffering and loss of enjoyment of life, an amount for past loss of capacity,
an amount for future loss of capacity, special damages, an amount for cost of
future care, and interest and costs. The issue is what quantum ought to be
awarded under each head of damages.

[8]           
With regard to damages, the Defendants’ position is that, with the
exception of an agreed amount of $1,000 for special damages, the claims made by
the Plaintiff are not supported by the evidence and/or the law.

[9]           
The Court will first set out the evidence, the law and its findings in
relation to the issue of liability, and then address the issue of quantum of
damages, as appropriate, based on the evidence relating to the Plaintiff’s
injuries, their treatment, their effect on her life and the prognosis going
forward.

The Trial

[10]       
The trial took place over four days. The Plaintiff testified and called
the following witnesses: Chris Breadner, her common-law partner; Carrie
McCarthy, her partner in the interior design firm where she works; Cameron
Calder, a friend, fellow downhill mountain-biker and contractor with whom she
has worked on design projects; Dr. Heather Finlayson, a physiatrist who
examined her and prepared a report as to the nature of her injuries and ongoing
pain; and two witnesses to the accident who were in separate vehicles, Wing
Fung Bobby Wong and John Ming Cheng.

[11]       
Counsel for the Defendants cross-examined the Plaintiff and the
witnesses called on her behalf and called one witness, the Defendant Driver of
the taxi.

The Accident

[12]       
The accident occurred between 8:00 a.m. and 8:30 a.m. on December 16,
2010 at the intersection of Laurier Avenue and Granville Street in Vancouver,
BC. It was morning rush hour and traffic was heavy in both directions, although
it was heavier proceeding northbound towards downtown.

[13]       
The intersection of Laurier and Granville is without traffic lights and is
located one block north of the main intersection of Granville and King Edward
Avenue, which has traffic lights. Laurier is a side street that runs east/west and
entry onto Granville is controlled by stop signs. Granville is a six lane,
north/south thoroughfare, with three lanes travelling in each direction at peak
traffic times.

[14]       
The Plaintiff was proceeding southbound on Granville in the curb lane.
The Defendant Driver had been travelling northbound on Granville and was in the
process of turning left across the three southbound lanes from the northbound
lane closest to the center line, planning to travel west on Laurier. Their
vehicles collided during the course of his left turn when the taxi cab entered
the southbound curb lane and came into contact with the Plaintiff’s VW Golf.
The impact was considerable. Although neither driver was taken to the hospital,
Emergency Health Service personnel, firefighters and the police attended. The
Plaintiff was checked at the scene and was advised to go to a hospital
emergency department for further checks, which she did. The Defendant Driver
indicated that although shaken, he was not injured.

[15]       
Mr. Cheng, a general contractor in the construction business, had a
job site on Laurier. He testified that he was driving southbound on Granville
one or two vehicle lengths behind the Plaintiff as they approached the
intersection of Granville and Laurier. He said his speed was 50 km/h and that
the Plaintiff’s vehicle was travelling at the same speed. He had followed her
vehicle since she had turned right onto Granville from West 16^th
Avenue. He recalled that there were lots of cars around as it was a typical
rush hour, and that there was a car to his left, although he did not recall if
the cars to his left had stopped or were moving.

[16]       
Mr. Cheng saw the yellow car that came to be involved in the
collision approach from his left, proceeding west. He said that it “broadsided”
the Plaintiff’s vehicle that was one or two car lengths in front of him. Prior
to the impact Mr. Cheng said that he did not see the yellow car at all. He
had no sense of its speed or if it had inched out. He said that the Plaintiff’s
vehicle had no time to brake or swerve to avoid the accident and both the
Plaintiff’s vehicle and the yellow car ended up on Laurier. He said he was
shocked and shaken by what he saw as it easily could have been him who was
struck. He observed that the Plaintiff looked stunned, upset and shocked.

[17]       
Mr. Wong, an insurance broker, was on his way to work going
southbound on Granville. He recalled that he was stopped in the middle lane
behind three or four cars also stopped north of the intersection of Granville and
Laurier. The traffic was stopped because of an accumulation of traffic caused
by a red light at the intersection of Granville and King Edward. He saw a
yellow cab going north on Granville in the lane closest to the center line
start to make a left turn onto Laurier through a gap in the traffic. The next
thing he recalled was hearing a “big bang” as the cab collided with a car going
south in the curb lane of Granville. Having seen it as it started its left
turn, Mr. Wong did not recall seeing the cab again just prior to the
collision, although he had a sense when the Plaintiff’s vehicle passed him in
the curb lane that there was going to be a collision. Mr. Wong said that
there was no time for the Plaintiff to have stopped her vehicle to avoid the
collision. When asked if the cab stopped at all, Mr. Wong said that it drove
right through while making its left turn.

[18]       
In cross-examination Mr. Wong indicated that he could not remember
how long he had been stopped before the car in the curb lane passed him and was
subsequently struck, his best estimate ranging from 15-20 seconds up to half a
minute. He indicated that there was traffic stopped in the southbound lane to
his left, including on the north side of the intersection of Granville and
Laurier. He saw the cab because it turned, and then the next moment he saw the
Plaintiff’s car pass him on the right and it kept going until the impact,
without slowing down at the intersection of Granville at Laurier. He agreed
that at certain times his view of the cab was blocked by the car in front of
him.

[19]       
The only witness called on behalf of the Defendants was Mr. Pannu,
the Defendant Driver. As of the date of trial he had been driving a taxi cab
for seven years, which means that as of the date of the accident, he had been
driving a taxi for about two years. He recalled that when the accident occurred
he was driving a yellow Prius taxi cab owned by the Defendant Company. He was
returning from the airport and had been travelling northbound on Granville when
he decided to turn left to travel west on Laurier. The weather was clear. He
indicated that he did not have a passenger at the time. He described stopping
in the center northbound lane on Granville with his left turn signal light on,
in order to turn left across the three southbound lanes onto Laurier. He said
the traffic was backed up towards the intersection at King Edward. He described
making eye contact with the driver of the car in the first southbound lane such
that he considered it safe to turn into the gap in the traffic in that lane. He
said he did the same thing with regard to pulling across the next lane, which
was the middle one.

[20]       
With regard to pulling into the third lane, which was the curb lane, Mr. Pannu
said that when he was to enter that lane he was “keeping all safe things in
mind” and that his signal was “ok.” He checked and no one was coming in the
lane where the collision occurred. He also said that he went into the curb lane
to check to see if he could make a safe left turn. He understood that there
could have been traffic in the curb lane and that “it was my duty to check”;
and he definitely felt he had done that as it was his “normal habit to check
and go for safety.” As he had been given the nod to enter the two prior lanes, Mr. Pannu
said that he slowly went into the space in the third (curb) lane to check. As
he was approaching it he said there was nothing there, and then after he
started to make a turn a car was there and it collided with him. He indicated that
the car hit the passenger side of the cab, which ended up on the southwest
corner of Laurier and Granville. He said he was pushed with great force because
his turban fell off, making him very uncomfortable. He said he was wearing a
seat belt and was not injured. He recalled talking to the woman who hit him but
he could not recall any details. He confirmed that the police gave him a ticket
for making an unsafe left turn, which he did not dispute. He said to dispute it
would have cost him time from work and each day in his business “is crucial in
order to pay the lease and take something home.”

[21]       
On cross-examination, Mr. Pannu stressed that he stopped before
turning left and that he only made the left turn after checking to make sure it
was safe. When Mr. Pannu’s answers to questions on examination for
discovery (in which he said that he did not recall for sure if he stopped (E
for D, p. 11 Q and A 65)) were put to him, he indicated they were true;
and as to whether he recalled stopping, as opposed to recounting his normal
practice, he said that his habits had not changed, and if he does it today then
that was his normal practice from before. He agreed that no matter what he did
it was safe, and his answer for everything was that it was “always safe.” He stressed
that when he has to enter the third lane he has to be safe and go slowly and
take all precautions. He confirmed that he went a bit into the curb lane to
check if it was safe and there was no problem, so he “decided to make a safe
left turn.”

[22]       
Mr. Pannu further recalled that the Plaintiff must have come to
talk to him as he recalled talking to her. However, he could not remember the
conversation. He denied texting someone after the accident.

[23]       
The Plaintiff’s account of the accident is as follows: On December 16,
2010, a Thursday, at about 8:15 a.m. she was going south along Granville to
Richmond to a design job in her red 1995 VW Golf car. She was travelling in the
curb lane at about 45 km/h as she approached the intersection at Laurier, one
block before the intersection at King Edward. She was just starting to slow for
the red light at King Edward and recalled that while the traffic in the two
lanes next to her was just stopping, her lane was open and a cab came from the
left and hit her car. The Plaintiff said that she saw the cab just a “split
second” before it hit her car. She was surprised and remembered thinking to
herself that “this was not going to work out.” She said that the force of the
impact pushed her car into Laurier facing to the left, while the cab was pushed
into the sidewalk on the southwest corner of the intersection.

[24]       
The Plaintiff said she was hit on the left and her head swung and hit
the driver’s side window to her left and her right knee hit the console. She
was wearing her seatbelt. Immediately after the collision, once she realized
what had happened (she was not sure if she had been briefly unconscious), the
Plaintiff said she got out of her car and went to check on the driver of the
cab. She said that she approached from the passenger side and asked him if he
was alright. He yelled at her that she had “screwed up.” She then called the
police and they attended, in addition to an ambulance and firefighters. She
recalled that the police gave the cab driver a ticket for failing to yield. Her
boyfriend came to pick her up and, after she changed, she went to Vancouver General
Hospital to get checked out by doctors at the emergency department.

[25]       
On cross-examination, the Plaintiff indicated that the vehicles to her
left on the north side of the intersection of Granville and Laurier were
slowing, if not fully stopped. When her prior answers from the Examination for
Discovery were put to her – to the effect that the traffic in the centre-most
lane and the middle lane were stopped “about there”, referring to an area north
of the intersection – the Plaintiff agreed. She also agreed on Examination for
Discovery that as she approached the intersection she saw that there were cars
backed up on the north side of the intersection (on Granville Street). At trial
when asked if she passed fully stopped vehicles as she approached the
intersection at Laurier, the Plaintiff said that in her memory the traffic came
to a halt “right there.” There was a break where the cab driver came through.
She also said that her view was blocked by the two lanes of vehicles to her
left, admitting that she knew that vehicles did turn there and agreeing that
there was a break in the centre line to permit that. Therefore, she admitted at
that (uncontrolled) intersection there could have been a vehicle turning left
across the southbound lanes of travel, and as such it was a potential hazard.
She further testified that she was travelling about 45 km/h in the curb lane
and had not applied her brakes. She said she had just taken her foot off the
gas in anticipation of stopping (at the intersection of Granville and King
Edward).

[26]       
The Plaintiff said that she did not see the cab driven by the Defendant
Driver until a “split second” before the collision and that the left front of
her vehicle hit the passenger side of the cab, more on the front than on the
left side.

[27]       
Photographs and estimates of the damage to the vehicles are contained in
Exhibit 3. Damage to the Plaintiff’s 1995 VW Golf CL was estimated at $3,284.39
and it was written off. Photographs show considerable damage to its front with denting
and compression on its left side ahead of the left front wheel at the initial
point of impact, and an obvious dent and buckling of the front hood in line
with its right front wheel from a subsequent impact. Damage to the Defendant Company’s
yellow Prius cab #156 is primarily on its right front passenger side in the
area of the front hood, fender and wheel. The total damage to it was estimated
at $9,627.61 and there is no indication that it was written off.

Findings Of Fact In Relation To The Accident

[28]       
The Court must carefully assess the credibility and reliability of the
evidence pertaining to the accident in order to find the facts. This involves a
careful consideration of the trustworthiness of the witnesses’ testimony, based
on the veracity and sincerity of the witnesses and the accuracy of the evidence
they provide: Bradshaw v. Stenner, 2010 BCSC 1398 [Bradshaw],
aff’d 2012 BCCA 296.

[29]       
An excellent distillation of the relevant considerations is to be found
in the comments of Madam Justice Dillon in Bradshaw, who stated the
following:

186.     Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont.H.C.); Farnya [sic]v. Chorny, [1952] 2 D.L.R. 152
(B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at
para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether
the evidence is consistent with the probabilities affecting the case as a whole
and shown to be in existence at the time (Farnya at para. 356).

[30]       
The oft-quoted decision of the BC Court of Appeal in Faryna v. Chorny,
[1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna] was recently referred to by
Madam Justice Adair in Gichuru v. Smith, 2013 BCSC 895, aff’d 2014 BCCA
414, who made reference to Bradshaw and then stated the following:

[130]    Moreover,
the assessment of a witness’s credibility must reasonably subject the witness’s
story to an examination of its consistency with the probabilities of the
surrounding conditions or circumstances. The real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those circumstances. See Faryna v. Chorny,
[1952] 2 D.L.R. 354 (B.C.C.A.), at pp. 356-357.

[31]       
Applying these principles to the present case, I find the Plaintiff, Mr. Cheng
and Mr. Wong to be credible and reliable witnesses and I accept their
evidence.

[32]       
In particular, the Plaintiff impressed the Court as being careful and
candid in giving her evidence. She had a good recall of the events related to
the accident. She did not attempt to slant the facts in her favour by
minimizing her speed or saying that she had applied her brakes in anticipation
of slowing or stopping for the red light one block ahead at the intersection of
King Edward and Granville. Rather, she testified that she was “probably” going
about 45 km/h at the time and was “just getting off the gas.” Nor did she deny
that there was a break in the traffic through which a vehicle might have been
coming, acknowledging the potential for hazards, both vehicular and pedestrian,
although it is not clear to what extent and for how long the southbound traffic
on Granville in the center and middle lanes had been stopped. Generally, I
accept the Plaintiff’s evidence and in particular, I find that she did not see
the Defendant Driver in the cab until a “split second” before the collision as
the left front of her vehicle hit the front passenger side of the cab when it
pulled out directly in front of her.

[33]       
I find that the locations of damage on both vehicles from the collision
support the Plaintiff’s evidence, as the point of impact was on the front left
or driver’s side of her small VW Golf ahead of the left front wheel, and the
point of impact on the Defendant’s cab was the right front side in the area of
the right front wheel. This supports a finding that only the very front of the
cab was protruding out into the curb lane when it was immediately struck by the
Plaintiff’s vehicle.

[34]       
The sudden appearance of the Defendant Driver’s cab entering the curb
lane through a gap in slowed or stopped traffic is also borne out by the
evidence of Mr. Wong and Mr. Cheng, who were both independent
witnesses to the accident. They offered evidence from different vantage points,
with Mr. Wong being in the middle southbound lane on Granville behind
three or four cars stopped north of the intersection at Laurier, and Mr. Cheng
following several vehicle lengths behind the Plaintiff, southbound in the curb
lane. I found both these independent witnesses to be credible and reliable. In
particular, I accept the evidence of Mr. Wong that the Defendant Driver,
finding a gap across the uncontrolled intersection, proceeded across the first
two southbound lanes congested with traffic and continued into the third (curb)
lane without stopping to check if the third lane was clear. Thus, where the testimony
of the Defendant Driver contradicts the evidence of the Plaintiff, Mr. Wong
and Mr. Cheng, I accept their evidence and reject his.

[35]       
With regard to the evidence of Mr. Pannu, the Defendant Driver, the
Court found him to be a most unreliable witness regarding the circumstances of
the accident. His own evidence was contradictory as to whether he actually did stop
to check if the way was clear before continuing his left turn across the curb
lane. His normal practice, which he maintained is “always to be safe”, did not assist
him on this occasion. Mr. Pannu was also evasive in his evidence, choosing
to talk only about his normal “safe” practices, as opposed to what he
specifically recalled occurring at the time of the accident. His testimony was
vague, internally and externally inconsistent, and steeped in the self-serving
platitude that whatever he did was and is always safe.

[36]       
I also find, given the nature of Mr. Pannu’s left turn that was
essentially perpendicular to the southbound traffic on Granville, that it is very
likely that Mr. Pannu’s view of the southbound curb lane on Granville was obstructed
at the point he proceeded into it.  His view was likely obstructed because of the
traffic in the middle lane, which was noted by Mr. Wong to have been
stopped. This finding is supported by the points of impact on the vehicles
already noted and the evidence of Mr. Cheng, who was driving close behind
the Plaintiff. Therefore, I do not accept Mr. Pannu’s evidence that he
could see whether the curb lane was clear when he pulled into it.

[37]       
I also find that the Plaintiff was not speeding and that the traffic was
heavy. The evidence of Mr. Cheng and Mr. Wong supports a further finding
that the Defendant Driver, having utilized a gap in the first two southbound
lanes to commence his left turn, simply took a risk that there would be no
traffic coming in the third lane and pulled into that lane. Therefore, the
collision was completely unavoidable for the Plaintiff, even if she had been
going somewhat slower. Based on these findings I also find that the Plaintiff
was the dominant driver as she entered the uncontrolled intersection at
Granville and Laurier, and the Defendant Driver was the servient driver, as
those terms are used in the case law.

The Plaintiff’s position on liability

[38]       
Counsel for the Plaintiff relies upon the following authorities:

–Pacheco
(Guardian ad litem of) v. Robinson (1993), 1993 CarswellBC 12, 75 B.C.L.R.
(2d) 273 (C.A.) [Pacheco];

–Walker v.
Leung, 2014 BCSC 1623 [Walker]; and

–Hodgson v.
Saeed, 2015 BCSC 147 [Hodgson].

[39]       
It is the Plaintiff’s position based on s. 174 of the MVA and
the decision of Pacheco and the cases that follow it, that the driver
making the left turn at an intersection has the onus to prove that the dominant
driver is blameworthy. The driver making the left hand turn has a duty to yield
the right of way to the oncoming traffic. The oncoming vehicle is entitled to
proceed on the assumption that other vehicles will observe the traffic rules.
Furthermore, when the vision of the driver is obstructed by other vehicles, the
dominant driver, in this case the Plaintiff, is entitled to proceed through and
the left-turning vehicle must yield.

[40]       
Thus, the Plaintiff submits that the jurisprudence places a heavy onus
on the left-turning driver to establish blameworthy conduct on the part of the
dominant driver. Counsel submits that the Defendants have not, on the evidence,
established (a) that the Plaintiff should have realized that the Defendant Driver
was about to disregard his legal obligations and foolishly move his vehicle
into her lane and (b) that the Plaintiff, in the circumstances, had time to
slam on the brakes or take some other evasive action to avoid the collision.

The Defendants’ position on liability

[41]       
It is the Defendants’ position that the Court ought to accept the
evidence of the Defendant Driver or, failing that, if the Court finds that the
Defendant Driver failed to yield the right of way to the Plaintiff, then the
Court must consider the Plaintiff’s own negligence in relation to the
collision. In that regard, the Court is obliged to consider s. 158 of the MVA,
which imposes an obligation upon motorists passing other motorists on the
right.

[42]       
Counsel for the Defendants relies upon the following authorities:

–Guenther
v. Fillion, [1987] B.C.J. No. 1993 (S.C.);

–Middleton
v. Vanpelt et al., [1987] B.C.J. No. 854 (S.C.);

–Berar
v. Manhas, [1988] B.C.J. No. 677 (S.C.);

–McGiveron
v. Lee, [1991] B.C.J. No. 459 (S.C.) [McGiveron]; and

–Clark
v. Stricker, 2001 BCSC 657 [Clark].

[43]       
In support of his submission that the Plaintiff was negligent in the
circumstances of the accident as she entered the unmarked intersection of
Granville and Laurier, counsel for the Defendants points to the Plaintiff’s
speed (between 45-50 km/h in a 50 km/h zone) as she passed stopped vehicles to
her left, and the fact that she did not brake as she approached the
intersection of Granville and Laurier, but merely took her foot off the gas in
anticipation of stopping at the next main intersection at Granville and King
Edward. In particular, the Defendants rely upon the cases of McGiveron
and Clark, in which plaintiffs were found to be 25 percent liable for
collisions with left-turning vehicles.

The Relevant Law, Analysis And Findings Regarding Liability

[44]       
It is useful to start with the relevant sections of the MVA.

[45]       
Section 174 of the MVA sets out the obligations upon motorists
when a motorist is making a left turn, stating the following:

When a vehicle is in an intersection and its driver
intends to turn left, the driver must yield the right of way to traffic
approaching from the opposite direction that is in the intersection or so close
as to constitute an immediate hazard, but having yielded and given a signal
as required by sections 171 and 172, the driver may turn the vehicle to the
left, and traffic approaching the intersection from the opposite direction must
yield the right of way to the vehicle making the left turn.

[Emphasis added.]

[46]       
Section 158 of the MVA, to which counsel for the Defendants refers,
places obligations on motorists passing other vehicles on the right and states:

(1) The driver of a vehicle must not cause or permit the
vehicle to overtake and pass on the right of another vehicle, except

(a) when the vehicle overtaken is making a left turn or its
driver has signalled his or her intention to make a left turn,

(b) when on a laned roadway there is one or more than one
unobstructed lane on the side of the roadway on which the driver is permitted
to drive, or

(c) on a one way street or a highway on which traffic is
restricted to one direction of movement, where the roadway is free from
obstructions and is of sufficient width for 2 or more lanes of moving vehicles.

(2) Despite subsection (1), a driver of a vehicle must not
cause the vehicle to overtake and pass another vehicle on the right

(a) when the movement cannot be made safely, or

(b) by driving the vehicle off the roadway.

[Emphasis added.]

[47]       
Considering the cases to which I have been referred in light of the
facts of the present case, I find the facts in Walker to be very
similar.

[48]       
In Walker, the plaintiff was in the curb lane approaching an
intersection controlled by traffic lights when she struck a left-turning
vehicle that crossed into her path. Travelling eastbound on West 41^st
Avenue in Vancouver, approaching the intersection at Oak St., the plaintiff saw
that the two eastbound lanes for travel were occupied by vehicles stopped for a
red light, whereas the curb lane was open. As the green light for eastbound
traffic came on, two further westbound vehicles turned left across the
intersection to go south on Oak Street which, according to the plaintiff, appeared
to have “pushed the light”, referring to the end of an advanced left turn light
for eastbound traffic on West 41^st Ave. As the plaintiff passed
through the intersection at approximately 30 km/h the defendant’s vehicle
entered the intersection directly into the path of the plaintiff, who applied
her brakes to reduce her speed to approximately 10 km/h before colliding with
the defendant’s vehicle.

[49]       
Chief Justice Hinkson found the left-turning defendant to be completely
at fault for the accident, stating the following:

[45]      Support for the
plaintiff’s position can be found in the decision of our Court of Appeal in Pacheco
(Guardian ad litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273, 22
B.C.A.C. 185.  In that case, at paras. 15 and 18, Mr. Justice
Legg, writing for the Court, held:

[15]      In my opinion, a driver
who wishes to make a left hand turn at an intersection has an obligation not to
proceed unless it can be done safely.  Where each party’s vision of the
other is blocked by traffic, the dominant driver who is proceeding through the
intersection is generally entitled to continue and the servient left-turning
driver must yield the right of way.  The existence of a left-turning
vehicle does not raise a presumption that something unexpected might happen and
cast a duty on the dominant driver to take extra care.  Where the
defendant, as here, has totally failed to determine whether a turn can be made
safely, the defendant should be held 100 percent at fault for a collision which
occurs.

…

[18]      In my opinion, when a
driver in a servient position disregards his statutory duty to yield the right
of way and a collision results, then to fix any blame on the dominant driver,
the servient driver must establish that after the dominant driver became aware,
or by the exercise of reasonable care should have become aware, of the servient
driver’s own disregard of the law, the dominant driver had a sufficient
opportunity to avoid the accident of which a reasonably careful and skilful
driver would have availed himself.  In such circumstance any doubt
should be resolved in favour of the dominant driver.  As stated by
Cartwright J. in Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.),
at 461:

While the decision of every motor vehicle collision case
must depend on its particular facts, I am of opinion that when A, the
driver in the servient position, proceeds through an intersection in complete
disregard of his statutory duty to yield the right-of-way and a collision
results, if he seeks to cast any portion of the blame upon B, the driver having
the right-of-way, A must establish that after B became aware, or by the
exercise of reasonable care should have become aware, of A’s disregard of the
law B had in fact a sufficient opportunity to avoid the accident of which a
reasonably careful and skilful driver would have availed himself; and I do
not think that in such circumstances any doubts should be resolved in favour of
A, whose unlawful conduct was fons et origo mali.

[Emphasis added.]

[50]       
Hodgson is another case relied upon by the Plaintiff. In Hodgson
the plaintiff was driving southbound on a street with two southbound lanes. He
was in the lane closest to the center of the road, travelling 60 km/h in a 50
km/h zone. The defendant suddenly came onto the roadway from a side road with a
stop sign. The plaintiff could not stop and “inevitably and immediately” collided
with the front part of the defendant’s vehicle with such force that the airbags
in the plaintiff’s vehicle deployed and the whole front of the defendant’s car
hood was caved in.

[51]       
The plaintiff’s position was that he had the right-of-way and the
defendant turned into his lane instead of waiting for another vehicle that
obstructed the defendant’s view of the roadway to pass. The plaintiff was right
behind this other vehicle. Alternatively, the plaintiff argued that the
defendant ought to have proceeded slowly into the intersection until he had an
unobstructed view of the roadway before making his turn. Had the defendant
taken either of those precautions, the collision would have been avoided. The
defendant’s position was that the plaintiff should have exercised caution going
past intersections and access roads where there were stop signs.

[52]       
While Hodgson deals with drivers who pull out onto main
thoroughfares from stop signs at intersecting streets (as opposed to
left-turning drivers at intersections where there is oncoming traffic), Madam
Justice Maisonville reviewed the law in relation to what may constitute “an
immediate hazard.” Maisonville J. made reference to Kerr v. Hall, 2013
BCSC 2347 [Kerr], a decision of Mr. Justice Melnick, in which he
adopted the “immediate hazard” definition articulated by Mr. Justice Davey
in Keen v. Stene (1964), 44 D.L.R.(2d) 350 (B.C.C.A.):

an approaching car is an
immediate hazard if the circumstances are such as to require the driver of that
car to take some sudden or violent action to avoid a threat of a collision if
the servient driver fails to yield the right-of-way.

[53]       
In Hodgson (at para. 62) Maisonville J. further quoted
Melnick J. in Kerr as follows:

[20]      …In Currie v. Taylor,
2012 BCSC 1553, Mr. Justice Armstrong, in a case involving an accident in
an intersection where s. 175 of the MVA was engaged, helpfully
summarized the law as follows at paras. 65 to 68:

[65] The leading authorities that inform the Court on
liability assessment in these kinds of collisions are: Keen v. Stene
(1964), 44 D.L.R. (2d) 350 (B.C.C.A.); Raie v. Thorpe (1963), 43 W.W.R.
405 (B.C.C.A.); and, Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450
(S.C.C.). The principles include the following:

a) a vehicle is an immediate hazard in circumstances where
the oncoming driver is required to take a sudden or violent action to avoid
threat of the collision if the servient driver fails to yield the right-of-way:
Raie at 406.

b) it is the movement of the servient vehicle into the
through street in the absence of an immediate hazard that gives it the
right-of-way, rather than its mere presence at the stop sign; Keen at
360.

c) consideration is given to the interval of time elapsing
to allow a careful oncoming driver to realize that the servient driver is
making an entry resulting in the danger of collision; Keen at 360.

d) the hazard is immediate if a reasonable danger of such
future collision may be apprehended at the time of the proposed entry by the
servient driver; Keen at 364 and Raie at 405.

e) if the dominant driver has become aware, or should become
aware that the servient driver has entered the intersection in disregard of the
law, then a duty arises to take sufficient steps to avoid the accident was; Keen
at 367.

[66] In Keen, Mr. Justice Davey adopted the
following definition of “immediate hazard” at 359:

[A]n approaching car is an immediate hazard if the
circumstances are such as to require the driver of that car to take some sudden
or violent action to avoid threat of a collision if the servient driver fails
to yield the right-of-way. …

[67] Mr. Justice Harris (as he then was ) in Knight
v. Li, 2011 BCSC 184 said:

[12] Note that it is the action required of the servient
driver to avoid the threat of collision – and not to avoid the collision itself
– which is relevant to assessing whether the dominant driver constituted an
immediate hazard.

[68] The observations of Davey J.A. at 359 are pertinent to
the facts of this claim:

…"Speed and distance generally determine what
constitutes an immediate hazard", or as it was put by Cannon J., in Swartz
Bros. Ltd. v. Wills, [1935] 3 D.L.R. 277 at 279, [1935] S.C.R. 628 at
p. 632: "…distances must be translated into time in order to
determine what are the rights of the parties."

But having said that, I must add that in most automobile
collision cases estimates of time, speed and distance do not lend themselves to
exact mathematical analysis, because the estimates are by their very nature
uncertain[…]

In my opinion s. 165 [now s. 175], dealing with
rights-of-way of drivers proceeding along through streets, and stopped at stop
signs on intersecting streets, is to be applied broadly from the point of view
of the motorist sitting in the driver’s seat, and not meticulously by a Judge
with the benefit of afterthought. The situation confronting a motorist, even one
waiting at a stop sign, is not a static, but a fluid one, calling for quick
appreciation and judgment. A driver waiting at a stop sign ought not to enter a
through street unless it is clear that oncoming traffic does not constitute an
immediate hazard. Excessive refinement of what traffic is an immediate hazard
will defeat the purpose of the right-of-way regulations contained in s. 165
[now s. 175], and make them an inadequate and confusing method of
regulating traffic at intersections on through streets.

[54]       
In the present case the Defendants’ position is that the Plaintiff
should have exercised more care as she travelled past the line of stopped
vehicles (on their right)  and proceeded southbound in the curb lane, by virtue
of the obligation imposed upon her by s. 158(2) of the MVA. Therefore,
she bears at least some responsibility for the accident.

[55]       
In my view it is not clear what exactly the Plaintiff could or should
have done to avoid the accident. She was not speeding. There was traffic
backing up from the red light at Granville and King Edward in adjacent lanes. She
had taken her foot off the gas to slow or stop for the red light ahead. There
was traffic travelling approximately the same speed as she was several car
lengths behind her, specifically Mr. Cheng, and she had a “split second”
to react as the front of the Defendant’s cab appeared in her path. To my mind
it is an overly simplistic, unrealistic and impractical response to say that
vehicles in the Plaintiff’s position ought to significantly slow so as to be
able to stop at every unmarked intersection between a main thoroughfare and a
side street in anticipation of a servient vehicle entering the intersection.

[56]       
I agree with the comments of Maisonville J. when she considered the
implications of such a finding in Hodgson, stating:

[65]      The defendant’s position in this case is that the
plaintiff should have exercised caution going past intersections and access
roads where there were stop signs.  I do not agree.  The
dominant vehicle is entitled to assume that the servient vehicle will not
create a hazard.  Were vehicles to have to slow at every intersection
to check to see if the servient vehicle was to drive out, this would create a
hazard in and of itself.

[Emphasis added.]

[57]       
With regard to the authorities relied upon by the Defendant, I note that
all but Clark are decisions prior to 1993 when Pacheco was
decided by the BC Court of Appeal.

[58]       
In Clark, decided in 2001, Mr. Justice Melvin found the
plaintiff to be 25 percent liable for a collision that occurred in
circumstances somewhat similar to those in the present case, insofar as the
plaintiff was proceeding westbound towards and into an intersection where
traffic in the two adjacent westbound lanes was stopped and a left-turning
vehicle came into her lane of travel, which she did not see prior to impact.
However, there is a significant difference  between that case and the case at
bar because in Clark the plaintiff’s view to her left was
obscured or blocked by the presence of a cube van stopped so as to block the
view of the intersection.

[59]       
In the passage of Clark relied upon and quoted by counsel for the
Defendants in the present case, Melvin J. at para. 10 refers to the
following passage contained in Pacheco as support for his finding that
the plaintiff in Clark was partially liable for the accident:

[23]      Counsel for the
respondent relied upon the decision of the Ontario Court of Appeal in Nash
v. Sullivan (1973), 1 O.R. (2d) 133, 39 D.L.R. (3d) 501, and on a passage
in that judgment on p. 502 [D.L.R.] in which the court held that a
plaintiff who was proceeding along a through street along a curb lane on a
motorcycle past a line of vehicles to his left which were stopped and which
obscured his view of the defendant was not entitled to an absolute
right-of-way. The court held that he was contributorily negligent when he
collided with the defendant who was turning left across his path. The court
held that the plaintiff had a duty to exercise care in the circumstances and
was negligent in failing to slow his motorcycle and in failing to keep a proper
look out when he saw, or should have seen, that the cars in the line of traffic
to his left had stopped to allow the defendant to make a left hand turn. In my
opinion, that case is distinguishable on its facts from the case under appeal. There
was no indication here that the traffic on the left hand side of the plaintiff
had stopped so that the plaintiff should have been alerted to a situation of
potential danger.

[60]       
Comparing both the plaintiff in Clark and the plaintiff in Nash
v. Sullivan, referred to above, with the Plaintiff in the present
case, I note that here, as in Pacheco, there was nothing to alert her to
a situation of potential danger.

[61]       
In considering the evidence and in particular, the exact state of
southbound traffic on Granville at Laurier, it is not clear if the traffic in
the first southbound lane next to the center line was slowed or stopped. The
Defendant Driver testified he made eye contact with an oncoming driver and
moved his cab into a gap, apparently doing the same thing in relation to the
centre southbound lane, where, according to the testimony of Mr. Wong, traffic
had been stopped for approximately15 to 30 seconds. To the extent traffic in
the two lanes adjacent to the Plaintiff’s lane of travel was stopped, it was
due to a buildup of traffic at the red light one block further south at the
controlled intersection of Granville and King Edward. The traffic was not
backed up due to any impediment to travel at Granville and Laurier, nor was
there any indication of any potential danger at that intersection. Absent the
Plaintiff catching sight of the Defendant Driver in the cab prior to proceeding
through the intersection, there was nothing to alert the Plaintiff to the
possibility of a left-turning driver at that location. The evidence is clear
that the Defendant’s cab became visible to the Plaintiff only a “split second”
before the collision, with the result that the Plaintiff had no opportunity to
brake or slow down or swerve to avoid the accident.

[62]       
Accordingly, I find that, to the Defendant Driver turning left, the
Plaintiff was so close to the intersection as to constitute an immediate
hazard. As such, the Defendant Driver as the servient driver was required to
yield the right of way to the Plaintiff as the dominant driver. Had the
Defendant Driver taken the time and care to look for southbound traffic in the
curb lane before pulling into it, he would have seen the Plaintiff as the
immediate hazard she was and waited for her to pass. As the Plaintiff’s counsel
pointed out: “She was there to be seen.”

[63]       
I also agree with the comments of Maisonville J. in Hodgson (in
the context of a speeding plaintiff) that even if the Plaintiff in the present
case, who was not speeding, had been moving considerably slower, the accident
most likely still would have occurred. As Maisonville J. aptly noted:

[69]        … I find that
there was no evidence to suggest that it would have made a significant
difference if he had been going 50 km/hour and stopped this accident from
happening. I am mindful of the case law notably Justice Davey’s comments above
that speed and distance are to be taken into account in deciding an immediate
hazard, however that in these cases time and distance are more often than not
estimates and cannot translate into mathematical certainty such that it is a
certainty the speed cause the accident. Here I am also mindful of the
evidence that there was no time for the plaintiff to stop and that had more
time elapsed it is possible that the impact would have been to the cab of the
defendant vehicle severely injuring him rather than destroying the front end of
his vehicle. In all of the circumstances, I find that the defendant is
100% liable for the damages to the plaintiff.

[Emphasis added.]

[64]       
Furthermore, I note that the effect of s. 174 of the MVA is
to cast the burden on the left-turning driver to prove the absence of an
immediate hazard at the moment the left turn begins. Thus, if a left-turning
driver asserts that he or she started to turn when it was safe to do so, then
the burden of proving that fact rests with him or her: Nerval v. Khehra,
2012 BCCA 436 [Nerval] at paras. 33-35.

[65]       
Also in Nerval (at paras. 36-37) Mr. Justice Harris
outlined the two-part burden placed upon a left-turning driver under s. 174:
(1) to demonstrate that when the left-turning driver commenced his or her turn,
there was no immediate hazard; and (2) if the through driver is found to
be the dominant driver, to show that the through driver nonetheless was
negligent and at fault for contributing to the accident.

[66]       
Madam Justice Devlin recently expounded on the first part of the burden
facing the left turning driver in Pirie v. Skantz, 2015 BCSC 368 at paras. 37
and 39, as follows:

[37]        An
"immediate hazard" has been defined in these terms: if an approaching
vehicle is so close to the intersection when a driver attempts to make a left
turn that a collision threatens unless there is some violent or sudden avoiding
action on the part of the driver of the approaching vehicle (the through
driver), then the approaching vehicle is an immediate hazard. The point in time
to assess whether the through driver is an "immediate hazard" is the
moment before the driver who proposes to turn left actually starts to make the
turn: Raie v. Thorpe (1963), 43 W.W.R. 405 (B.C.C.A.) at p. 410; Vukelich
v. Vliegenthart, 2013 BCSC 879 [Vukelich] at para. 36.

[39]     If
the court determines that the through driver was an immediate hazard when the
left turning driver commenced his or her turn, the left turning driver is
considered the servient driver and the oncoming driver is considered the
dominant driver. Any doubt is resolved in favour of the dominant driver. The
relevant authorities for this proposition are: O’Ruairc et al v. Pelletier
et al, 2002 BCSC 601 at para. 28; Walker v. Brownlee and
Harmon, [1952] 2 D.L.R. 450 (S.C.C.); Pacheco; and McCowan v.
Arjune et al, 2002 BCCA 267 at para. 20.

[67]       
In my view the Defendant Driver turning left has failed to prove the
absence of an immediate hazard at the moment he began his left turn. I also find
that the Plaintiff, driving in the manner that she was in the curb lane on
Granville immediately approaching the uncontrolled intersection at Laurier, was
clearly the dominant driver and posed an immediate hazard. The Defendant Driver
was the servient driver. Given the evidence in this case it is not possible for
the Defendant Driver to prove that it was safe for him to proceed when he
started to pull into the curb lane and collided with the Plaintiff’s vehicle.
For these reasons I find the Defendant Driver and vicariously, the Defendant
Company, 100 percent liable for the accident.

Contributory Negligence

[68]       
The Defendants, in seeking that the Plaintiff be found partially liable
for the accident, are asking the Court to find that the Plaintiff contributed
negligently to her own injury. Section 1 of the Negligence Act, R.S.B.C.
1996, c. 333, provides:

1  (1) If by the fault of 2 or more persons damage or
loss is caused to one or more of them, the liability to make good the damage or
loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.

(3) Nothing in this section
operates to make a person liable for damage or loss to which the person’s fault
has not contributed.

[69]       
The Court must consider whether the Plaintiff failed to take reasonable
care for her own safety and whether that failure is one of the causes of the
accident: Bradley v. Bath, 2010 BCCA 10 at para. 27 [Bradley].
The Court is also obliged to consider the respective blameworthiness of each
party, which requires an evaluation of the party’s conduct and the extent to
which it departed from the standard of reasonable care: Alberta Wheat Pool
v. Northwest Pile Driving Ltd., 2000 BCCA 505 at paras. 45-46.

[70]       
As set out above, I find the Defendant Driver to be 100 per cent at
fault for the accident, there being no evidence that the Plaintiff was negligent.

Causation

[71]       
The Plaintiff bears the onus to establish on the balance of
probabilities that “but for” the negligent act or omission of the Defendants,
her injuries would not have occurred. The Defendant Driver’s tortious activity
or omission need not be the sole cause of the Plaintiff’s injuries, but must be
a contributory factor beyond the range of de minimis. The “but for”
test is explained by Mr. Justice Major in Athey v. Leonati, [1996]
3 S.C.R. 458 at paras. 13‑17 and elaborated upon in Resurfice
Corp. v. Hanke, 2007 SCC 7; [2007] 1 S.C.R. 333 at paras. 21-23.

[72]       
Causation must be established on a balance of probabilities before
damages are assessed:  Blackwater v. Plint, 2005 SCC 58; [2005] 3
S.C.R. 3 at para. 78, McLachlin C.J.C. The purpose of damages is to put
the Plaintiff into the position that she would have been in but for the
Defendants’ negligence.

[73]       
In the present case, the Plaintiff must establish that but for the
Defendant Driver’s negligence in driving the cab into her lane of travel as he
did, she would not have sustained her injuries.

[74]       
Given the Court’s prior findings with regard to the circumstances of the
accident, that the Defendant Driver is 100 per cent liable for the accident and
that indisputably the injuries for which the Plaintiff now claims were
sustained during the accident, the Plaintiff has established causation in
relation to those injuries.

Evidence With Regard To The Plaintiff’s Injuries And Their Impact

Evidence of the Plaintiff

[75]       
The Plaintiff, 33 years old at the time of the trial and 29 years old at
the time of the accident, was born and raised in Switzerland. She holds a
bachelor’s degree and had worked for a Swiss bank and in event management
before coming to Vancouver. She grew up in a very sports-minded family. Her
father was an avid cyclist and she grew up hiking, camping and skiing in the
Alps. She said she transitioned at the age of 16 from cross-country biking to
downhill mountain-biking. She went on big biking trips in the Alps and at the
age of 19 or 20 she did a nine day, trans-Alp bike trip. She described the
different types of mountain-biking – the very technical, very advanced “rocky,
rooty and slower, like double black diamond (in downhill skiing)”, and the
other trails that are just “fun flowy blues and greens” (referring to the
easier designations for ski runs).

[76]       
The first time the Plaintiff came to Vancouver was in 2001. She was told
to come to Vancouver as it was the best place for mountain-biking. She met her
former partner, Michael Host, when she was here and then they had a long
distance relationship for several years before she moved to Vancouver in 2005.
She became involved in the interior design business at Riesco & Lapres as a
project manager. She then enrolled at BCIT in the interior design program and
received a certificate of interior design in 2009 after three years of
part-time study while she worked. She became skilled in computer-aided design
(“CAD”) with an architectural focus on interiors, to which she referred as
“auto-CAD”. With Mr. Host the Plaintiff also became involved in a
successful wood furniture business, MTH Woodworks, that made furniture and
functional art pieces from salvaged trees. In 2010, however, she did not claim
an income from that business, whereas Mr. Host did.

[77]       
When the accident occurred on December 16, 2010, the Plaintiff was on
her way to a design job at a hair salon in Richmond. In 2010 she was doing
contract work with Riesco & Lapres, which she said accounted for 90 to 95
per cent of her income for the year.

[78]       
The Plaintiff recalled that the accident happened on a Thursday
(December 16) and after that, she did not work. She had planned a trip to
Switzerland for the holiday season with a flight leaving on December 21^st.
She took the flight to see her family, which she described as a very painful,
awful flight. She said that she had a very stiff neck and back, pain between
her shoulder blades and in her upper and lower back, and pain in a nerve that
shot down her right leg. She stood up a lot during the flight and walked around
as much as she could. The holiday with her family was to be a ski holiday.
However, she could not ski and “hung around.”

[79]       
The Plaintiff’s mother is a nurse and therapist who has become a
naturopath doctor. She currently treats athletes in her practice. While the
Plaintiff was in Switzerland she said her mother treated her neck, back and her
whole body. The Plaintiff flew back to Vancouver to spend New Year’s with Mr. Host.

[80]       
Upon her return to Vancouver the Plaintiff saw her family doctor in
January 2011 about the injuries she suffered in the accident. She said she kept
having headaches and her back was very stiff. The nerve in her leg still hurt.
Her knee was bruised, but that problem resolved. Her injuries were mainly to
her back and neck. The doctor recommended physiotherapy and the Plaintiff said
she would go to massage therapy as well, which she did in the first half of
2011. She liked the exercises prescribed by the physiotherapist and she did
them daily. She also did yoga, which helped with the stiffness. She went back
to work with Riesco & Lapres but she had to cut down on her days and she
could not do the auto-CAD work as she could not sit for prolonged periods. She
transitioned into other work for that firm, trying to mix up her days in terms
of sitting and then moving about. She then left Riesco & Lapres in October
2011, having worked there ten months in 2011, to start her own design firm with
another designer, Carrie McCarthy. In November 2011 they started McCarthy
Hinder Interior Design.

[81]       
In 2011 the Plaintiff said she went frequently for massage. It helped
but did not solve the pain. She went when her pain was severe and when she was
available. She continued to do the physiotherapy exercises, and did yoga three
to four times a week as she found it to be the most helpful. She went to the
gym to do light stretching to try to mobilize her neck and also did light
running.

[82]       
Also during 2011 the Plaintiff said that she scaled down her work with Mr. Host
and MTH Woodworks. She still worked around the shop, but she cut down on the
heavy lifting and tried to avoid doing a lot of sanding as the position
bothered her. Later in 2011 she suffered from a second hernia while lifting a
stump and subsequently required surgery.

[83]       
The Plaintiff said that by the time she started the design business with
Ms. McCarthy in November 2011 her lower back was fine and the nerve
problem in her right leg was gone. The remaining problems were in relation to her
neck and upper back, and her frequent headaches. Their frequency was four to
six times a month depending on how much she worked. She said that by 2013 the
headaches were less frequent at two to three times per month, but lately they
have become worse again. She said that she never had headaches prior to the
accident like the ones she has experienced since, many of which she
characterizes as migraines. She described the headaches in the following way:
“like it comes over your head, a weight on your eyes, pounding and very
sensitive to light.” She said that she has to lie down, pull the blinds and
take medications early so they do not come on as severely.

[84]       
With regard to her neck, the Plaintiff says that it is very rare that
she does not feel any pain. She feels a nerve under her skull at the back
right-hand side, which when it becomes painful, triggers a migraine. She feels
very stiff and has pain in her upper body. She has also noticed that certain
foods, including white and red wine, seem to trigger migraines, whereas
sometimes a bit of caffeine helps.

[85]       
The Plaintiff said she changed her family doctor from Dr. Aghanajafi
to Dr. Vanderfluit and saw two physiatrists who had differing views as to
how best to treat her. Her name is on a wait list for the spine clinic and
injections. She also saw Dr. Teal, a neurologist, who recommended Botox
injections. The Plaintiff said that she is not a big fan of “covering up the
problem” and that she will try acupuncture, and then Gunn IMS treatment with
needles inserted deeper into the muscle, before she has injections. She
continues to do the physiotherapy stretches every day, attend the gym once a
week and go to yoga two to three times per week.

[86]       
The Plaintiff and Mr. Host ended their relationship in October 2013
and since that time her only source of income is from her design business. For
about six months prior to their separation she received a ten per cent
commission from jobs at MTH Woodworks.

[87]       
In terms of her level of physical activity, both pre- and post-accident,
there is no question that the Plaintiff remains very active and fit, but she
testified about the negative impact the neck pain and headaches have had on the
level and kind of physical activities and sports she enjoys.

[88]       
She testified that for the year or two prior to the accident she did
downhill mountain-biking three to four times a week, and snowboarded and skied
in the winter. She also liked to surf in Tofino and to go kayaking twice a
year, and also to paddle board every two weeks in the summer.

[89]       
Since the accident the Plaintiff said that she does more low impact
activities like paddle boarding. She has skied and snow boarded very little,
due in part to poor snow conditions. She went surfing once in the summer of
2014, but she found it hard to hold her head up lying on the board and felt it
the next day. For a time after the accident she did go downhill mountain-biking
about three times a month, but in the last six months she has only been twice.
This is because the next morning after mountain-biking, she usually finds that
she experiences quite severe pain and headaches. Whereas prior to the accident
she used to ride many hard, technical, steep trails, she has now down-graded to
the “green or blue” (using the downhill skiing categories), “more flowy, low
impact” trails. The Plaintiff acknowledges this significant downgrade in the
level of difficulty, but she says, “I still like to go out.” However, she says
that she now goes out for a shorter time and does many fewer runs on her bike.
While she still does some of the things she used to, she said that she has to
cut back on both the amount and the intensity.

[90]       
In direct examination, the Plaintiff showed two videos (both contained
in Exhibit 4). The first is a video of her mountain-biking – preceding her
former partner, Mr. Host – down a trail at Whistler called the “A Line.”
He is wearing a “GoPro” camera. It depicts the Plaintiff riding very fast down
what appears to be a steep and very demanding trail and taking some jumps with
an amazing degree of balance, coordination and skill. She was not sure when
this video was made, but thought it was likely after the accident. Mr. Host
uploaded it to YouTube. She described this trail as “more of a highway, a flowy
trail more about momentum and speed”, as opposed to a “technical, harder trail
on the North Shore.” At the end of the first video Mr. Host was
encouraging her to take a very large jump that he then took and she avoided.
The Plaintiff said that prior to the accident they would do heavy rides like
this 13 to 15 times a day and now she only does it once, once in a while, when
her addiction to downhill mountain-biking comes back. Otherwise she stays on
the less demanding trails, although she said that she did the A Line trail
shown in the first video once in 2013 to show her new partner, Mr. Breadner.

[91]       
The second video is a lifestyle promotional video of the Plaintiff and Mr. Host
that includes aspects of the MTH Woodworks business. She said it reflected what
“we did in the last six years or so” and is a mix of activities before and
after the accident. It includes some of the shots of the Plaintiff
mountain-biking that were taken from the first video, and also shows the
Plaintiff water skiing and engaging in stump removal and other activities
related to turning the salvaged wood into custom wooden furniture. There is no
question that pre- and post-accident the Plaintiff is a very strong and
athletic woman and is inclined to engage in what many would consider “extreme”
mountain-biking.

[92]       
The Plaintiff testified that she considered that she lost about 35 per
cent of her income in 2011due to the accident. She missed two days of work in
late December 2010, after the accident and before travelling to be with her
family, and then worked fewer hours at Riesco & Lapres doing auto-CAD and
other work upon her return.

[93]       
The Court accepts the evidence regarding the Plaintiff’s income from
2009 to 2013 inclusive as it relates to her claim for past loss of capacity. It
is set out in the section of these reasons that deals with the same. .

[94]       
Once the Plaintiff and Ms. McCarthy set up their new design firm,
the Plaintiff’s ability to do auto-CAD work was lessened due to her neck pain
and headaches, but she could not provide a clear indication of her total losses
in this regard because if their firm was busy, they would have contracted out
this work in any event. She did, however, include two invoices (Ex 2, Tabs 7
and 8) from the first half of 2013 that total $6,266.01, for auto-CAD work that
she said she otherwise would have done herself.

[95]       
The Plaintiff indicated that the design business she shares with Ms. McCarthy
is successful and their company is very young. At work if she gets headaches
she lies on the floor or goes for a walk and she schedules her day so that she
intermittently sits and walks. She does very little auto-CAD work, but there is
other work to be done at the computer and if she sits for a long time then she
suffers. Prior to the accident, when she was working for Riesco & Lapres,
she said she could work 10 to 16 hours a day when a project got started and
there was a lot of drawing to be done and a deadline to be met. Now,
post-accident, she typically works six to eight hours a day, perhaps more if
she has meetings. Prior to the accident the Plaintiff says that she had never
injured her neck or back and did not suffer from migraines, but she had broken
her arm twice downhill mountain-biking.

[96]       
The Plaintiff also said that post-accident she chooses lower adrenaline,
low impact sports like paddle boarding, running and stretch yoga as she appreciates
that she has to be careful about how, and how much, she exercises. However, she
admitted that she was addicted to downhill mountain-biking as it is her
passion, her escape, her way of rejuvenating and being in the woods. Without it
she said she gets “grumpy” and while she tries to exercise outside, she misses
the adrenaline rush.

[97]       
Turning to housekeeping, the Plaintiff said that prior to moving in with
her partner, Mr. Breadner, post-accident she lived in a one bedroom place
that she found manageable. Since moving in together, they share a three bedroom
townhouse and sometimes his son is with them. She said she is the main cook and
they share cleaning duties. She likes big, fresh meals and finds leaning over
the counter difficult. She experiences pain and headaches. She still cooks but
then lies on the floor afterwards with muscle spasms and takes medication. She
said she likes things very clean and is a bit “OCD” in that department. The
cleaning that hurts her the most is vacuuming and cleaning the bathtub. When
she vacuums she experiences stiffness and neck pain, but she just “sucks it up”
and does it. At present, she is exploring getting a suitable housekeeper.

[98]       
Currently with regard to the headaches she suffers from, the Plaintiff
said that they are “always there a little bit”; they can be milder, but they
can also get very severe if she does not catch them in time. She rates a mild
headache as a “five” on a scale of one to 10 in terms of levels of severity,
which would typically start during the day and continue until she goes to bed,
whereas a very severe headache is an “eight” or a “nine” and can last from one
or two days up to seven days. When she has headaches, she cancels or postpones
work meetings or manages her week differently. About once a month she has to
reschedule things as a result.

[99]       
In terms of neck pain, she said that the nerve pain is always present
and is typically a “two” on the severity scale. With a muscle spasm the pain
level rises to a “nine”, but can be reduced with medications to the level of a
“four” or “five”.

[100]     A
medication she often takes is Ponstan, a Swedish anti-inflammatory that she
gets from her mother. She takes it six to eight times a month. She said it is
quite a strong medication and it is good for headaches. She also sometimes
takes Advil or over-the-counter muscle relaxants for back pain. In terms of
next steps to address her pain and headaches, the Plaintiff said that she will
try acupuncture and treatment at trigger points. She is on a wait list for the
spinal clinic and injections may be best, given that there is a nerve issue,
but she wants to explore other options first.

[101]     In
cross-examination counsel for the Defendants reviewed the Plaintiff’s treatment
history, including the fact that the Plaintiff waited two weeks to go and see
her doctor, Dr. Aghanajafi, after returning from Switzerland, went to a
total of four massage therapy sessions in January and February 2011, and to her
first physiotherapy appointment on August 24, 2011. When asked why she did not mention
headaches to her doctor on the visits of January 10 and 25, March 28 and August
17, 2011, the Plaintiff said she had headaches but guessed that she was more
focused on back and neck pain. She agreed that she filled two prescriptions for
injuries sustained in the accident, one for Naproxen and one for Flexeril on
January 25, 2011. She also provided details about a pain in her groin that she
was concerned was a hernia, as she had hernia repairs at the age of seven and
did subsequently require surgery in 2012 to repair a hernia. When she went to
the doctor in August 2011, the Plaintiff said she was concerned about this pain
in her groin from lifting a stump in the woodworking business. The Plaintiff
also agreed that between September 2011 and November 2012 she did not see her
doctor for neck pain or headaches, but did see her for the hernia and a
complete physical.

[102]     Cross-examined
about the various physical activities she has engaged in since the accident,
the Plaintiff was forthcoming about the very physical nature of her work with
MTH Woodworks and the fact that she exercises a lot, which includes biking,
paddle boarding, surfing and going to the gym. She indicated that the YouTube
video of her mountain-biking down the A Line trail at Whistler was posted on
September 23, 2012 and that she rode up there every year since 2005. She said
it looked to her that the video was made after the accident, but she was not
“guaranteeing it.” The trail is set up for the big mountain-biking Crankworx
festival, held annually.

[103]     Counsel
for the Defendants then showed the Plaintiff some photographs of the end of the
course, including the hut with a ramp on top, which showed the ramp had not
been there in 2011, but was there in 2012. This places the video in 2012.

[104]     When the
Plaintiff was asked about her downhill mountain-biking, as depicted in the
video, she said that since the accident, once in a while she will still go and
ride the trail and that she does it in almost the same way, except that prior
to the accident she would do a last big jump at the end (not to be confused
with the ramp on top of the hut). When it was put to her that the video showed
her doing about 40 jumps (more accurately being airborne on her way down the
mountain about 40 times) she said that was typically how she did it both before
and after the accident.

[105]     The
Plaintiff also agreed that she did not fill the prescriptions given to her by Dr. Teal
but said that she did try the samples, and found the side effects made them
less attractive than Ponstan. She agreed that she had not kept a migraine
diary. She said she switched doctors in February 2014 to Dr. Vanderfluit
because she was able to take on new patients. The Plaintiff agreed that she had
not filled the prescriptions from Dr. Vanderfluit.

[106]     When the
Plaintiff’s answers from an examination for discovery from November 2013 were
put to her (to the effect that her migraines had lessened in 2012, she was
trying to avoid things to make it worse, and that she probably had migraines
then about twice a month, depending on what work and exercise she did) she
agreed that those responses were true. But she did say that in 2013 her neck
pain was still coming on at the end of a work day once or twice a week on
average, some months more and some months less.

[107]     Finally,
when it was put to her that she had a stressful year with ending her
relationship with Mr. Host and commencing a new one, living with Mr. Breadner
and with his two year old son half the time, the Plaintiff admitted these were
new developments for her, and life was different. She was asked various
questions about her new design business and how successful it was. She agreed
that the two invoices from people hired to do auto-CAD work were from 2013 when
they were involved in a big project on Pender Island, as opposed to 2012.

[108]     Having
carefully considered the evidence of the Plaintiff, I find that generally I
accept it. She impressed the Court as an honest and careful witness. She also
is stoic, not a complainer and not one to rush to seek medical or therapeutic
assistance. Her manner is understated and she is physically very tough.

[109]     I find
that the Plaintiff was candid about the injuries arising from the accident (to
her lower back, right knee and the nerve pain in her right leg) from which she
had recovered by the time she and Ms. McCarthy started their new design
business in 2011. Someone prone to exaggerate or malinger would not have
indicated that to be the case. She was also very clear about the ongoing pain
in her neck and the headaches she regularly experiences that flare up into full
blown migraine-type headaches. Her evidence is that she suffers pain in her
neck and a lower grade pain in her head almost all the time. To her credit she
has done her best to maintain her very active lifestyle since the accident with
the modifications she testified to. There is no evidence that her occasional
downhill mountain-biking runs have aggravated or perpetuated the pain in her
neck and the severe headaches that she regularly experiences. It must be
remembered that she is highly skilled and very experienced at downhill mountain-biking.
A careful viewing of the A Line video reveals a highly skilled, graceful and
exquisitely coordinated individual having fun doing what she loves. A fall
could be catastrophic, but there is no evidence that her much more limited
downhill mountain-biking has aggravated the conditions that she testified only
arose after the accident.

[110]     I am also
of the view that the Plaintiff is not a person who attends medical or
therapeutic appointments to “build a file” and she is skeptical about the
long-term efficacy of some of the treatments suggested to her. She may pursue
some of the more aggressive interventions to alleviate her pain and reduce the
frequency and intensity of the headaches in the future. There is no evidence or
submissions before the Court that she has failed to mitigate her condition by
failing to engage in the suggested treatments. She is a highly motivated
interior design professional who works and plays hard, although not as hard as
she used to prior to the accident and not without neck pain and the headaches
as described. She copes with pain primarily by taking over-the-counter
medications or the medication Ponstan provided by her mother. It must be
remembered that these injuries and the accident that caused them were not in
any sense of her making, and absent this unfortunate event and its consequences
she would have continued to aggressively pursue her very physically-demanding
recreational and work-related endeavours.

Evidence of Chris Breadner, the Plaintiff’s common law partner

[111]     Mr. Breadner,
age 39, is the Plaintiff’s common law partner. He has known her for 13 years,
having met her through a mutual friend. They started living together in
December 2014. He has a two-and-a-half-year-old son from a prior relationship
who lives with them about half the time. Mr. Breadner also does downhill
mountain-biking, and he has been involved in this activity for about the past
20 years. He did stunt mountain-biking at a very high level when he was
younger. He has gone mountain-biking hundreds of times on the North Shore
trails. He recalled that he did go mountain-biking with the Plaintiff in about
2006 when he used to bike with a group. Mr. Breadner said that his
impression of the Plaintiff’s level of mountain-biking skill was that it was
“very high” and “outside of a professional rider [she was] the best [woman] he
has ever seen.”

[112]     Since Mr. Breadner
and the Plaintiff commenced their relationship about a year ago at the time of
trial he said they have gone mountain-biking approximately 12 times – about ten
times in the summer of 2014 and about twice since then.  They went to the North
Shore and up to Whistler. He said that they do easier runs, the blue runs as
opposed to double black runs (to again use the ski run terminology), which
require much less skill. Where in the past they would do 15 runs in a day, now
the most they do is four or five. Mr. Breadner added that he had a
herniated disc in his back last year and although his back still bothers him,
he goes mountain-biking anyway because it is his passion, but he does it at
lower level of difficulty.

[113]     In terms
of activities he and the Plaintiff share, Mr. Breadner said that they
exercise together by going to the gym, where he works out and the Plaintiff
does stretches and runs. They did a couple of runs snowboarding one evening at
Cypress. In terms of being at home with the Plaintiff, he said it is usually
cooking while standing over the counter and cleaning that bother her. He said
he can tell when she is experiencing discomfort, although it is her personality
to tend to downplay her symptoms. She lies on the floor and he rubs her back.
The lights tend to bother her a lot when she has headaches. Although it tends
to vary, she has headaches “a couple to a few times a week.” Mr. Breadner
indicated that he has also noticed that the Plaintiff’s outlook is not as
positive as it used to be, and that she is not as happy or outgoing as she was
before. He considered this to be due to the pain she experiences and the fact
that she can no longer do what she loved to the same level that she once did
it.

[114]     In
cross-examination Mr. Breadner indicated that he and the Plaintiff
commenced their relationship in the spring of 2014 and prior to that he saw her
only occasionally. He also agreed that as his child is with them half-time,
this is a new development for the Plaintiff, who is busy with work and
sometimes puts in long days.

[115]     While Mr. Breadner’s
evidence mainly focused on his observations of the Plaintiff since they
commenced their relationship in the spring of 2014, I find he gave honest and
reliable evidence that corroborates that of the Plaintiff with regard to her
continuing problem with pain and headaches. I accept his evidence.

Evidence of Carrie McCarthy, the Plaintiff’s design partner

[116]     Ms. McCarthy,
age 56, is an experienced interior designer. She met the Plaintiff through a
friend who was the president of Riesco & Lapres, the design firm for which
the Plaintiff used to do contract work. Ms. McCarthy hired her to do
auto-CAD work for a project in 2011. Ms. McCarthy said the Plaintiff did a
good job and became the project manager of the job. The Plaintiff and Ms. McCarthy
subsequently decided to go into business together and started their own design
firm in the fall of 2011.

[117]     Their
firm, called McCarthy Hinder Interior Design, had a 200 sq. ft. office with one
desk where the two of them worked side by side. Ms. McCarthy said she was
aware that the Plaintiff had been in a motor vehicle accident. She observed
that initially the Plaintiff rubbed her neck a lot and, depending on how she
slept, could not move her neck to turn her head to say “hello”. The two of them
would divide up the work and if there was auto-CAD work to be done by the
Plaintiff she would have to get up and walk and stretch, obviously becoming
very uncomfortable. Ms. McCarthy was not trained to do the auto-CAD work
so it fell to the Plaintiff. Later on they would outsource the auto-CAD work
when they got busier, although when the Plaintiff could do it she would. If the
auto-CAD work became too much for the Plaintiff, Ms. McCarthy recalled
that she would have to leave early or take something to relieve the pain.

[118]     Ms. McCarthy
said that the Plaintiff continues to have headaches, and she can tell when
these occur because the Plaintiff becomes very pale. She said that the
Plaintiff gets a headache maybe once a week or every two weeks but that she is
very stoic and not one to complain about them. With regard to the Plaintiff’s
neck being stiff, Ms. McCarthy said that she would notice that issue about
once a week. Ms. McCarthy said she could tell if things had gotten worse
if, when the Plaintiff walked in, she needed to turn her upper body and not
just her head to look at Ms. McCarthy. Ms. McCarthy said that the
Plaintiff’s problems with headaches continue and that she has a serious
headache or migraine once a month. The Plaintiff tries to come into work but
may have to leave early.

[119]     In
cross-examination, Ms. McCarthy agreed that when they started their own
firm in the fall of 2011 the Plaintiff was doing all their auto-CAD work. She
said that she decided to go into business with the Plaintiff based on the
project they did together in August 2011 and the Plaintiff was highly
recommended by Riesco & Lapres where she had worked for seven to 10 years. Ms. McCarthy
also knew what a hard worker the Plaintiff was. She said they had incorporated
their business in 2013 and the Plaintiff is a good business partner. She is
optimistic about how the business is going.

[120]     The Court
accepts Ms. McCarthy’s evidence as reliable and credible and corroborative
of the Plaintiff’s evidence regarding her neck pain and debilitating headaches
and their impact on the Plaintiff’s ability to work on occasion.

Evidence of Cameron Calder, a friend and work associate of the Plaintiff’s

[121]     Mr. Calder
is a friend of the Plaintiff’s. He testified in direct examination and was not
asked any questions on cross-examination. Mr. Calder has known the
Plaintiff for seven or eight years. He met her as a member of the local
mountain-biking community, in which he has also been very active. In addition
to knowing the Plaintiff through the mountain-biking community and socially, Mr. Calder,
a contractor, has worked with the Plaintiff on five or six projects where she
has done interior design work. He described the Plaintiff at work as “very
professional, always dressed nice, big smile and [she] displays a lot of
confidence.” He recalled that while working there have been instances when the
Plaintiff has had to cut a meeting short or leave, indicating that she had a really
bad headache and was not feeling well. He recalled this happening at least a
couple of times.

[122]     In terms
of their shared interest in mountain-biking, Mr. Calder described the
thrill he gets from mountain-biking. He goes out two to three times a week and says
it provides him with a lot of exercise and is a very good stress reliever. He
described the various aspects of mountain-biking, including the fun of
“lofting” long flat jumps, where you repeat the same trick over and over, and
if you are skilled and confident enough to do the first jump, you can keep your
speed and do all the jumps; he says the air time is a thrill. While they ride
in the same circles and Mr. Calder has sometimes seen the Plaintiff in the
parking lot or pedalling her bike up Cypress Mountain for additional exercise
(as opposed to taking it up in a vehicle), he said that he has not actually
been downhill mountain-biking with her. He knew that she had been in a motor
vehicle accident in 2010.

[123]     The
evidence of Mr. Calder, which the Court accepts, speaks to the Plaintiff’s
success at work, as well as the draw and thrill of mountain-biking if “you are
skilled and confident” at it, which the Plaintiff is.

Medical evidence of Dr. Finlayson – a physiatrist

[124]     The
Plaintiff called Dr. Heather Finlayson, a physician with a specialty in
Physical Medicine and Rehabilitation (referred to as physiatry), to testify. Dr. Finlayson
was found to be an expert in physiatry, and her stated expertise is in the
diagnosis, medical management and rehabilitation of persons with spinal cord
injuries, acquired brain injuries, general medical disorders, neurologic
disorders such as strokes, amputation, arthritis and soft tissue injuries and
musculoskeletal pain syndromes.

[125]     Dr. Finlayson
examined the Plaintiff on May 1, 2014, and provided a report (Exhibit 7). I
will now set out the relevant portions of her report, except for her 
recommendations regarding further investigative and diagnostic measures and
possible treatments, which I will refer to later in these reasons when
addressing the cost of future care.

[126]    
Dr. Finlayson’s report (at pp. 3-5) contains the following
opinion in relation to the Plaintiff’s neck pain and cervicogenic headaches:

OPINION

Based on my assessment of Ms. Hinder and the specific
facts listed, it is my opinion she probably suffered the following injuries in
the motor vehicle accident of December 16, 2010:

1. Neck pain: Ms. Hinder has
persistent pain at the right upper back of her neck. Her symptoms and physical
examination findings are consistent with diagnoses of: 1) cervical facet
arthropathy and 2) myofascial pain.

Cervical facet arthropathy refers to pain originating in the
facet joints of the cervical spine (neck). These are the joints at the back of
the spine that connect the vertebrae (neck bones) together. The cervical facet
joints are common sources of pain following whiplash-type injuries.
High-velocity movements of the head and neck transmit forces through the joints
as they are compressed (pushed together) and distracted (pulled apart) when the
head and neck are thrust suddenly side to side and/or forwards and backwards.

Ms. Hinder’s symptom of pain in a focused area in the
right upper back of her neck correlates with the specific area of the upper
cervical facet joints. Her history of pain that increases with prolonged static
postures and with turning and bending her head towards the right side are
typical of pain from cervical facet arthropathy. Turning and bending her
head towards the right compresses the cervical facet joints, thereby leading to
increased pain.

Her physical examination findings also support the
diagnosis of cervical facet arthropathy. She is tender with palpation directly
over the right C1-2 and C2-3 facet joints, which are the upper joints of the
cervical spine (close to the base of the skull). Pressure over this area also
leads to pain at the back and top of her head.

The mechanism of injury, in which Ms. Hinder’s body
was thrust side to side, can reasonably be expected to have caused injury to
the right upper cervical facet joints. The force sustained was great enough
that she hit her head on her window. This movement is typical of a whiplash-type
injury.

Myofascial pain refers to pain that originates in muscles,
tendons, ligaments and other soft tissue structures. This is also a common
result of whiplash-type injuries, as the sudden high-velocity movements of the
head and neck put rapid stretch on muscles and their attachments around the
neck and shoulders. Myofascial pain also commonly occurs as a result of
underlying cervical facet arthropathy, as the pain coming from the joints
causes “spasm” of the overlying muscles.

Ms. Hinder’s history of a tight and stiff feeling in
the right side of her neck that extends to muscles at the upper shoulder and
shoulder blade area is typical of myofascial pain. Her history of pain that
increases with lifting is also typical of this condition, as heavy activities
that require use of the tight and sore muscles is expected to aggravate the
pain. The improvement in her pain with heat is also supportive of the diagnosis
of myofascial pain, as heat increases the elasticity of muscles, which can
decrease the feeling of pain and stiffness.

Her physical examination findings also support this
diagnosis. There are taut bands in muscles around the right side of the neck
and shoulder, including the splenius capitis (a muscle lying along the side of
the cervical spine), the upper fibers of trapezius (a muscle extending across
the top of the shoulder from the side of the neck to the upper back) and the
levator scapulae (a muscle extending from the upper inner shoulder blade to the
side of the neck). With pressure applied to the taut bands felt within these
muscles, Ms. Hinder reported pain that was in her typically sore areas.
These physical examination findings are consistent with “trigger points”, which
are found in myofascial pain.

The mechanism of the MVA in which Ms. Hinder sustained a
whiplash-type injury, as described above, as well as the presence of a
coexisting cervical facet arthropathy, supports the diagnosis of myofascial
pain.

Ms. Hinder did not have a history of significant pain
in her right neck and/or right shoulder prior to the MVA on December 16, 2010.
She does not describe a history of pain in this area, and there is no
documentation in the clinical records provided to suggest that she ever had a
similar problem in the past. The mechanism of injury in the MVA can reasonably
be expected to have caused right upper cervical facet arthropathy and
myofascial pain leading to her persistent neck pain. Therefore, it is my
opinion that Ms. Hinder’s right neck and right shoulder pain is a direct
result of the MVA on December 16, 2010.

2.         Cervicogenic headaches: Ms. Hinder has
headaches that are consistent with a diagnosis of cervicogenic headaches. This
term refers to headaches that are caused by a problem originating in the
cervical spine (neck).

Cervicogenic headaches commonly occur as a result of injury
to the upper cervical facet joints. This is consistent with Ms. Hinder’s
history, as described above. The upper cervical facet joints, particularly
C2-3, form the area where a nerve called the occipital nerve originates. This
nerve, as well as another portion of the occipital nerve that lies at the base
of the skull, provides sensation to the back of the head. Irritation of this
nerve as a result of cervical facet joint injury and/or direct trauma or
traction on the nerve from a whiplash-type injury, is a common cause of
cervicogenic headaches.

Ms. Hinder’s history of headaches that begin in the
right upper neck area and spread to the back and top of her head and then to
her forehead, is typical of cervicogenic headaches. Her history of headaches
that increase in association with neck pain also supports this diagnosis. This
diagnosis is further supported by the physical examination finding of an
increase in her head pain with pressure over the upper cervical facet joints and
base of the skull.

Ms. Hinder did not have a history of significant
and/or persistent headaches that affected her function in any way prior to the
MVA on December 16, 2010. She describes a prior history of mild occasional
headaches that occurred every few months, which is common in the general
population. She never required specific treatment for these headaches and they
did not affect her function. The headaches that she developed after the MVA
on December 16, 2010, were more frequent, severe, and long-lasting than her
prior headaches The headaches that began after the MVA have all of the features
that are typical of cervicogenic headaches resulting from a whiplash type injury.
Therefore, it is my opinion that her headaches that now occur approximately
every two weeks are a direct result of the MVA on December 16, 2010.

[Bold in original omitted and
emphasis added.]

[127]    
Dr. Finlayson’s report (at pp. 5-6) sets out her opinion regarding
the impact of the neck pain and headaches on the Plaintiff’s ability to
function and her prognosis for the Plaintiff as follows:

IMPACT ON FUNCTION

Initially after the MVA, Ms. Hinder reports that she was
unable to complete some aspects of her work, so she reduced her hours and lost
income. After she started her own business, she initially contracted someone
to help with tasks that increased her pain, such as doing drawings. She now
occasionally cancels meetings when she has more severe headaches. These changes
in her work function are typical of people with cervical facet arthropathy,
myofascial pain, and cervicogenic headaches. Otherwise, there is no significant
ongoing interference with her ability to work at her job as an interior
designer.

Her neck pain and headaches interfere with her
recreational pursuit of mountain biking. She has increased pain when she has
attempted mountain biking, so she now does this less frequently for shorter
periods and with less intensity. These changes in mountain biking frequency and
intensity are expected in the setting of cervical facet arthropathy, myofascial
pain and cervicogenic headaches, as the body position required for mountain
biking and the impacts sustained would be highly likely to increase pain.

PROGNOSIS

The prognosis for improvement in Ms. Hinder’s pain is
good with the interventions listed above. However, it is unlikely that she will
have permanent and complete elimination of her pain. Even if she goes on to
have a radiofrequency neurotomy of her cervical facet joints, there is commonly
recurrence of pain after 9 to 12 months following this procedure. I anticipate
that she will at least have intermittent flares of her pain into the foreseeable
future.

I expect that Ms. Hinder will remain able to work as an
interior designer. She will likely require occasional days off of work or
cancelled meetings due to her neck pain and/or headaches. She will likely
require assistance with work that requires sustained static postures such as
drawing.

It is my opinion that she is unlikely to require surgery as a
result of injuries sustained in the MVA.

[Bold in original omitted and
emphasis added.]

[128]     In direct
examination at trial Dr. Finlayson reviewed aspects of her opinion as
contained in her report. She provided evidence as to costs associated with an
MRI ($1,000), the anaesthetic injections, and possibly radiofrequency neurotomy
(costing “several thousands more”). Dr. Finlayson pointed out that even
with the latter procedure the Plaintiff is likely to have flare-ups in pain
indefinitely.

[129]     On
cross-examination Dr. Finlayson agreed that she saw the Plaintiff once on
May 1, 2014 and has not seen her since. She became aware only at the time she
testified that the Plaintiff had seen another physiatrist. She agreed that she
was aware that the Plaintiff suffered occasional headaches prior to the
accident that would occur every few months. Counsel for the Defendants took Dr. Finlayson
through various medical records of the Plaintiff, including notes from the
Plaintiff’s doctor, Dr. Aghanajafi, on selected dates when the Plaintiff
attended post-accident for other matters or did not refer to pain and/or
headaches attributed to the accident.   On one such occasion she attended for a
complete physical examination in relation to which there was no apparent
reference to neck pain and headaches.

[130]     Counsel
for the Defendants reviewed portions of the notes of the physiotherapist with Dr. Finlayson.
Sarah Kennedy, the physiotherapist, noted that she saw the Plaintiff on three
occasions in August and September 2011 regarding her December 2010 “mva”
injuries, reporting daily neck pain and headaches. After providing treatment
the physiotherapist noted that on September 14, 2011, the Plaintiff had “full
Cx ROM”, which Dr. Finlayson confirmed meant full range of motion in her
cervical spine. When shown the notes of the massage therapist, Dianna Weaver,
who the Plaintiff saw four times in January and February, 2011, Dr. Finlayson
pointed out several references to neck pain and headaches in the sub-occipital
area.

[131]     With
regards to the medication Ponstan being provided to the Plaintiff by her
mother, Dr. Finlayson said that she was not familiar with that medication.
Dr. Finlayson confirmed that her impression of the Plaintiff’s mountain-biking
was that her style of riding had changed such that she was not going off
cliffs. Dr. Finlayson said that she knew the Plaintiff had an MRI
performed and she was not aware if the Plaintiff had any injections
administered to her. She also recalled she had seen a report by Dr. Teal,
a neurologist, and while the Plaintiff had tried samples of the medications
recommended by him, she did not consider them to be any better than what she
was taking and to have more side effects.

[132]     Generally
speaking, the Court was impressed with the substance of Dr. Finlayson’s
report and her evidence in court. She was careful and clear in giving her
testimony and her overall findings were not shaken on cross-examination. Although
she did not examine the Plaintiff until three-and-a-half years after the
accident – assuming that the symptoms regarding pain and headaches were
accurately reported to her by the Plaintiff and are correctly attributed to the
accident, as opposed to a subsequent injury or trauma – I find that there is no
reason to doubt Dr. Finlayson’s opinion and findings and I accept them.

Findings In Relation To The Plaintiff’s Injuries And Their Impact

[133]     The
evidence and the conclusions set out above support the following key findings
in relation to the Plaintiff’s injuries as sustained in the accident on
December 16, 2010 and their impact of her life subsequently:

·      
The Plaintiff suffered soft tissue injuries to her neck, upper
and lower back and right leg.

·      
By November 2011 all but her neck pain and her relatively
frequent and severe headaches had resolved.

·      
The Plaintiff did not have prior history of significant and/or
persistent headaches.

·      
The Plaintiff continues to report low grade neck pain and
frequent headaches since the accident that periodically develop into severe
neck pain and serious headaches, several times per month.

·      
The findings of Dr. Finlayson are accepted – that the
Plaintiff continues to suffer from cervical facet arthropathy and myofascial
pain in relation to the neck pain, and cervicogenic headaches caused by a
problem originating in the cervical spine (neck).

·      
The Plaintiff often takes the medication Ponstan, a Swedish
anti-inflammatory, and sometimes takes Advil or over-the-counter muscle
relaxants, in order to try to alleviate her pain.

·      
Various spinal interventions may assist the Plaintiff in the
future but, according to Dr. Finlayson, even a more-long lasting treatment
(radiofrequency neurotomy) that can result in pain reduction for six to 18
months may need to be repeated if the pain returns.

·      
While the progress for improvement in the Plaintiff’s pain is
good with the interventions referred to by Dr. Finlayson, it is unlikely
that she will have permanent and complete elimination of her pain.

·      
The Plaintiff is not anxious to pursue some of the more invasive
interventions that, according to Dr. Finlayson, are unlikely to provide a
permanent and complete elimination of her pain, but she may attempt them in the
future.

·      
The Plaintiff will not require surgery as a result of the
injuries from the accident and will be able to continue her work as an interior
designer, requiring the occasional days off work or the need to cancel meetings
due to her neck pain and/or headaches.

·      
The Plaintiff’s ability to do auto-CAD work and other work at a
computer that requires prolonged periods of sitting has been negatively
affected.

·      
The Plaintiff’s ability to engage in the intensely physical
sports that she enjoyed previously has been compromised by her injuries; in
particular she can no longer engage in the sport of downhill mountain-biking,
which is her passion, with the same intensity or frequency as she did prior to
the accident, although she can still do it periodically. Certain other sports
she enjoyed previously have also been negatively affected.

[134]     The
Plaintiff finds that certain activities related to meal preparation and house
cleaning exacerbate her pain.

Damages

A. Non-pecuniary damages

[135]     The
Plaintiff seeks an award of non-pecuniary damages in the range of $55,000 to
$65,000, whereas the Defendants submit that an award of non-pecuniary damages
in the range of $25,000 to $35,000 is appropriate.

[136]     The
Plaintiff relies on the following authorities:

• Embleton v. Innes, 2013
  BCSC 851 [Embleton]
• Mezo v. Malcolm, 2013
  BCSC 1793
• Fell v. Morton, 2012
  BCSC 428 [Fell]
• Rutledge v. Jimmie,
  2014 BCSC 41
• Rayner v. David, 2012
  BCSC 2048 [Rayner]

[137]     The
Defendants rely on the following authorities:

• Robinson v. Anderson,
  2009 BCSC 1450 [Robinson]
• Loik v. Hannah, 2009
  BCSC 1196 [Loik]
• Christoffersen v. Howarth,
  2013 BCSC 144 [Christoffersen]
• Tweddle v. Losch, 2014
  BCSC 1377 [Tweddle]

[138]    
The decision of Stapley v. Hejslet, 2006 BCCA 34 [Stapley],
reviews the factors that inform an award of non-pecuniary damages:

46     The inexhaustive list of
common factors cited in Boyd that influence an award of
non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[139]     I will
briefly address the Stapley factors set out above in the context of the
present case.

[140]     The Plaintiff
is a young woman, age 29 at the time of the accident. While her soft tissue
injuries did not appear to be severe and some resolved, she has been left with
neck pain and headaches that regularly progress to become very painful and
disabling, forcing her to stop whatever she is doing. The medical evidence is
that even with significant medical intervention, the neck pain and cervicogenic
headaches are likely to continue into the foreseeable future. Debilitating
headaches occur about every two weeks. The Plaintiff is not a complainer. She
is stoic, a hard worker and she carries on despite the pain. Her home life and
recreational activities have been impaired to a significantly lesser degree
than likely would have been the case for a less strong and stalwart person.
That does not mean, however, that she does not suffer while incapacitated by
the neck pain and headaches; and she clearly misses pursuing her sports
activities, particularly downhill mountain-biking, with her pre-accident
intensity. She has maintained her family and social relationships because of
her positive attitude and how well she generally manages her chores and
commitments at home and at work in the face of her neck pain and headaches.

[141]     Considering the authorities and legal principles to which I have
been referred, I find the cases relied upon by the Defendants are
distinguishable on their facts.

[142]     For example in Robinson, where the award was $25,000, the
court noted that with increased physical activity the medical evidence
indicated that the plaintiff would likely recover from the soft tissue injuries
to her neck, back, left shoulder and right knee that she sustained in a motor
vehicle accident four years earlier. That is not the prognosis for the
Plaintiff, even though she is still very physically active.

[143]     Similarly in Loik, where the $25,000 award was reduced by 25
percent for failure to mitigate, the plaintiff continued to suffer neck and
back pain from two accidents approximately three years prior to trial. Although
she was found to be a credible witness, based on the limited medical evidence
the court was unable to determine if the injuries were permanent.

[144]     In Christoffersen, the plaintiff was a 22 year old
receptionist and sports enthusiast who sustained back and neck injuries from a
rear-end collision nearly three years prior to trial. The award was $35,000 in
circumstances where the plaintiff reported headaches three to five times a day
that lasted between 10 and 20 minutes, and the court found the plaintiff and
her family doctor to be credible, honest and forthright regarding the
plaintiff’s injuries. The judge noted (at para. 64) that, according to the
plaintiff’s family doctor, she had an “excellent prognosis for a full recovery
due to her commitment to physical activity.” The same may not be said in the
present case.

[145]     Finally in Tweddle, the judge found an award of
$12,000 for non-pecuniary damages to be appropriate for a female mining
engineer who was a passenger in a vehicle that was rear-ended. The plaintiff
had a headache immediately after the accident and developed a stiff neck. She
found wearing a hard hat at work caused headaches and she still had stiffness
in her neck. Three months post-accident the plaintiff had travelled to South
America to attend the World Cup in soccer and shortly thereafter had gone on an
extended motorcycle trip for 194 days from Saltspring Island to Southern
Argentina. The trip covered 39,000 km. and involved travelling over rocky
terrain. The evidence of an orthopaedic surgeon who conducted an independent medical
examination of the plaintiff included that a person with a significant spinal
problem in the neck would likely feel exacerbations of that problem when riding
motorcycles. In the present case it would be highly speculative and without an
evidentiary foundation to draw a similar conclusion in relation to the
Plaintiff’s infrequent downhill mountain-biking runs, which I accept are of
considerably lesser intensity than prior to the accident.

[146]     Turning to the authorities provided by the Plaintiff, I find the
decisions of Embleton and Rayner to be generally similar and of
the most assistance in fixing the quantum of non-pecuniary damages in this
case.

[147]     In Embleton, a female plaintiff received an award of $60,000
in relation to a motor vehicle accident for injuries to her neck, upper back
and shoulder. She developed headaches associated with the neck pain. She had
been very physically active prior to the accident and a year post-accident she
had returned to her sporting activities, but with less tolerance for extreme
exertion. She experienced symptomatic flare-ups of her injuries approximately
once every two weeks. The judge (at para. 64) noted that the weight of
medical opinion “[lay] on the side of eventual recovery and return to Ms. Embleton’s
pre-accident health…”

[148]     In Rayner, the young male plaintiff was very involved in
outdoor activities. After the accident he suffered from neck pain, shoulder
pain and headaches. He only visited his doctor a few times, especially as time
passed, and he only missed three days of work due to his injuries, but upon his
return avoided heavy tasks. He suffered headaches once to twice a month with
persistent neck pain. While he was able to maintain his leisure activities, he
had to limit the extreme nature of them to avoid pain. He was awarded $65,000
in non-pecuniary damages.

[149]     For these reasons, I find that an award of $60,000 in non-pecuniary
damages is appropriate in the present case.

B. Past income loss/past loss of capacity

[150]     The
Plaintiff advances a claim for past income loss in the range of $12,979 to
$18,000 arising from the first ten months of 2011; whereas the Defendants
argued that the Plaintiff’s income in 2011 was actually higher than her income
in 2010, and therefore she did not suffer such a loss.

[151]     The
Plaintiff’s submissions at trial and the further written submissions provided
by way of reply show that the Plaintiff earned about $1,200 less per month in
2011 than she did in 2010 (prior to the accident).

[152]     I accept
the income figures below based on the Plaintiff’s income tax statements, which
are in evidence. They provide the gross and net figures, in particular, for the
years of 2010 and 2011:

[153]    
In his closing submissions counsel for the Plaintiff noted that her 2010
net income of $50,648 amounted to a monthly net income of approximately $4,220.
The Plaintiff also submitted that in the first ten months of 2011 her net
income was approximately $3,000 per month. Her 2011 net income amounts to
$2,722 per month for the full 12 months. However, in the last two months of
2011 the Plaintiff was starting a new business, which likely caused her income
to drop somewhat.

[154]     Plaintiff’s
counsel explained the income calculations for 2011 as follows. The 2011 figures
relied upon by the Plaintiff were based on the tax return records that
indicated the Plaintiff’s 2011 income from the new McCarthy Hinder Interior
Design business for the last two months of 2011 was $5,687.38 in gross sales.
The Plaintiff’s gross income with the design firm of Riesco & Lapres, where
she was employed as an independent contractor from January to October 2011, was
about $68,203 ($73,890 minus $5,687 equals $68,203). In 2011 the Plaintiff’s
net earnings were 44 per cent of her gross income, and 44 per cent of $68,203
equals $30,009, which when divided by ten months, amounts to a net income of
approximately $3,000 per month. Plaintiff’s counsel has approached it this way
in order to factor out the last two months of 2011 where the Plaintiff’s gross
income from the new design business was inordinately low by virtue of starting
a new business.

[155]     Therefore,
the Plaintiff submitted that in 2011 she earned about $1,220 per month less
than she earned in 2010. This resulted in a loss of $12,200 for the first ten
months of 2011, and a loss of approximately $18,000 for the whole of 2011. The
Plaintiff suggested a figure of $14,640 as a compromise since she had started a
new business at the end of 2011, so a more accurate comparison between the two
years could not be made.

[156]     The
Defendants initially submitted that the Plaintiff’s income had actually
increased post-accident in 2011 as compared to 2010, submitting that her gross
income for the first ten months of 2011 was $76,389 (which is not accurate, as
the Plaintiff’s actual total gross income for all of 2011 was only $73,890),
not $68,203. Had the Defendants’ analysis been correct that the Plaintiff’s
actual gross income for the first ten months of 2011 was $76,389, then she
would have been on track to earn a gross income of approximately $91,000 for
2011, which would have been higher than her 2010 gross income of $84,326.

[157]     However,
the Plaintiff points out that the Defendants failed to appreciate the change in
Canada Revenue Agency (“CRA”) forms regarding GST/HST between 2010 and 2011,
resulting in the erroneous inclusion of GST/HST in 2011. After those taxes are
deducted the gross income is $68,203, the figure used by the Plaintiff. GST/HST
amounts collected by the Plaintiff and noted on her 2011 return were not income
to her, but were remitted to the CRA, whereas in 2010 the CRA form did not
require a notation of the GST/HST collected. It was the fact that the
Defendants erroneously added the amount of GST/HST into their calculations of
the Plaintiff’s gross income in 2011, while it was not included in the 2010
gross income amount, which created the false impression that her income in 2011
was about the same or higher than it was in 2010.

[158]     Counsel
for the Defendants also submitted that the Plaintiff’s expenses for 2011 were
higher than 2010 because they included almost $5,000 spent on client gifts.

[159]     Counsel
for the Plaintiff submits that even if the $5,000 for client gifts was added
back into the Plaintiff’s net income for 2011, which would raise it to $37,669,
her loss for the year 2011 is approximately $13,000. Hence the Plaintiff’s
claim for income loss for 2011 is in the range of $12,979 to $18,000.

[160]     Counsel
for the Defendants did not file any further written submissions disputing these
calculations on behalf of the Plaintiff.

[161]    
In assessing the Plaintiff’s claim for past income loss/past loss of
capacity, Plaintiff’s counsel referred the Court to the following summary of
the law by Madam Justice Warren in Sirak v. Noonward, 2015 BCSC 274 [Sirak],
regarding past and future income loss:

[168]     Past income loss and future
income loss are both properly considered as components of lost or impaired
income earning capacity: Ibbitson v. Cooper, 2012 BCCA 249 at para. 13;
and Falati v. Smith, 2010 BCSC 465 at para. 39, aff’d 2011 BCCA 45.

[169]     The principles governing the
assessment of loss of income earning capacity claims have been articulated most
clearly in judgments dealing with future losses: for example, Schenker v.
Scott, 2014 BCCA 203; Meghji v. British Columbia (Ministry of
Transportation and Highways), 2014 BCCA 105; Morgan v. Galbraith,
2013 BCCA 305; Jurczak v. Mauro, 2013 BCCA 507; and Perren v. Lalari,
2010 BCCA 140. However, the same principles apply to both the past and the
future. They include the following:

(a)     
Assessing damages for loss of income earning capacity typically involves the
consideration of what actually happened in the past, what would have happened
in the past had the impairment not occurred, what would have happened in the
future had the impairment not occurred, and what will happen in the future
given that the impairment has occurred. Again, the standard of proof relating
to actual past events is a balance of probabilities, but simple probability is
the standard applicable to hypothetical events which will be considered as long
as there was or is a real and substantial possibility they would have or will
occur: Athey, para. 27; and Smith v. Knudsen, 2004 BCCA 613
at para. 29.

(b)     
The plaintiff must first establish an impairment to his or her earning capacity
and a real and substantial possibility that the impairment has and/or will
result in a pecuniary loss: Perren, para. 32.

(c)     
Having done so, the plaintiff is entitled to compensation for the loss or
impairment of his or her earning capacity as a capital asset: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 8.

(d)     
The process of valuing the loss or impairment is an assessment and not a
mathematical calculation; however, mathematical, statistical and/or economic
evidence may assist in the analysis and, if that is the case, the court should
start by considering such evidence: Schenker, para. 53; and Jurczak,
paras. 35-37.

(e)      Having done so, the
overall fairness and reasonableness of the award must be considered, taking
into account all “possibilities and probabilities, chances, opportunities and
risks”: Rosvold, paras. 8-11.

[162]    
Specifically, with regard to a claim of past loss of income capacity Warren J.
in Sirak stated the following:

[179]     A
claim for past loss of income earning capacity is based on the value of the
work that the injured plaintiff would have performed, but was unable to
perform, because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA
141 at para. 30. One method of assessing this value is to project the net
income the plaintiff would have earned in the time period between the accident
and the trial, had the accident not occurred, taking into account all realistic
contingencies, and to award the difference between that projected net income
and the actual net income earned by the plaintiff during that time period. I
will refer to this as the projected earnings approach. Another method, which is
sometimes used to assess past loss of income earning capacity, has been
referred to as the cost of labour approach. Under this approach, the value of
the impairment is assessed by calculating the cost of funding an employee who
could undertake the tasks the plaintiff is no longer able to do, again taking
into account all realistic contingencies: Ostrikoff v. Oliveria, 2014
BCSC 531 at paras. 191 and 205.

[163]     In the
present case, it is the first of the two approaches discussed above, the
projected earnings approach, that the Plaintiff has employed. The Plaintiff has
established that she suffered impairment to her ability to work as an interior
designer after the accident, in terms of reduced hours because of pain and
headaches and the reduction in her ability to do auto-CAD work because of the
long hours at the computer required for such work. Given the difficulty in
providing an accurate measurement of her loss due to this impairment in terms
of actual hours, the evidence as to her decreased income is the most reasonable
and fair way to quantify this past loss.

[164]     Therefore,
I accept the submissions by counsel for the Plaintiff based on evidence filed
regarding the Plaintiff’s income in recent years, in particular that the years
of 2010 and 2011 provide a fair and reasonable basis upon which to assess past
loss of capacity. I fix the amount of the Plaintiff’s past loss of capacity at
$15,000.

[165]     I do not,
however, find the evidence regarding the amounts paid to two persons to do
auto-CAD work in 2013 totalling $6,266.01 to be sufficiently detailed and clear
with regard to whether this was additional work that McCarthy Hinder Interior
Design had to contract out because of the Plaintiff’s inability to do the work
arising from the accident, or whether they were so busy that it represents work
they would have contracted out in any event. Therefore I decline to take this
amount into account.

C. Future income loss/future loss of capacity

[166]     The
quotation from Sirak, at para. 161 above, summarizes the
principles and the correct approach to be taken with regard to future loss of
capacity.

[167]     The Court
must take into consideration what would have happened in the future had the
impairment not occurred, and what will happen in the future given that the
impairment has occurred. The standard of proof applicable to future events,
which are of course hypothetical, is simple probability as long as there was or
is a real and substantial possibility they would have or will occur.

[168]     The
Defendants, relying on Steward v. Berezan, 2007 BCCA 150 at para. 17,
submit that the Plaintiff bears the onus at trial to prove a substantial
possibility of a future event leading to an income loss, and based on Parypa
v. Wickware, 1999 BCCA 88, the court must then award compensation on an
estimation of the chance that the event will occur.

[169]     In the
present case, counsel for the Defendants submits that there is no real and
substantial possibility of any actual future loss for reasons associated with
the accident based on the following evidence: the Plaintiff’s income from
Riesco & Lapres billings increased in the year following the accident; she
spent almost two years post-accident working with her former partner in MTH
Woodworks until that relationship ended; she started the new business, McCarthy
Hinder Interior Design, with an experienced designer, Ms. McCarthy, who
continues to be impressed with the Plaintiff’s contributions to their
successful business; based on what the Plaintiff reported to Dr. Finlayson,
other than occasionally cancelling meetings due to headaches, “there is no
significant ongoing interference with her ability to work at her job as an
interior designer” (Exhibit 7, p. 5); and according to the Plaintiff’s
friend, Mr. Calder, the Plaintiff is very professional and an excellent
salesperson when she is working and has a big smile and lots of confidence.

[170]     The
position of the Plaintiff is that she is entitled to an award for her future
loss of earning capacity in the range of $75,000 to $85,000 as she is still
quite young and has a significant working life ahead of her. Her counsel
submits that her capacity to earn an income has been diminished by the injuries
she sustained in the accident and her ongoing neck pain and headaches. Because
the Plaintiff switched from working as a contract employee with Riesco &
Lapres to being an owner of her own business with Ms. McCarthy, he submits
that she did not have a consistent earnings history pre- and post-accident.
However, the evidence indicates that approximately once a month she has to
cancel a business meeting due to the headaches she suffers from. Because she is
an owner of the business she is able to work around her pain and headaches in
terms of re-scheduling appointments when required. But in the event that she
was again to become an employee, she submits that there is a substantial
possibility that this could affect her earnings. Also, and more importantly,
she has a clear limitation with regard to prolonged auto-CAD computer work.

[171]     I accept
the Plaintiff’s submissions that there is a substantial possibility that her
future earnings could be diminished, particularly if she was required to take a
more junior position in the interior design field due to a down turn in her
business or in the industry overall.

[172]    
In Sirak the capital asset approach is succinctly summarized as
follows:

[202]     The
capital asset approach, which is typically used in cases in which the plaintiff
has no clear earnings history, involves consideration of a number of factors
such as whether the plaintiff has been rendered less capable overall of earning
income from all types of employment, is less marketable or attractive as a
potential employee, has lost the ability to take advantage of all job
opportunities that might otherwise have been open, and is less valuable to
herself as a person capable of earning income in a competitive labour market: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8; Gilbert,
para. 233; and Morgan, paras. 53 and 56.

[173]     In my view
this is a case where the correct approach to assess this loss is the capital
asset approach. Although the Plaintiff has a history of earning, it does not
provide an accurate comparison pre- and post-accident (contract employee v.
business owner and proprietor).  In addition, the success of her present
business clearly depends, to a significant degree, on the personal assets she
brings to it, of which her ability to sit down at a computer and use auto-CAD
to draw up the plans for proposed interior designs is one. This limitation
renders the Plaintiff less capable of earning income from her present type of
employment and potentially from many others that depend on prolonged hours at a
computer to generate work product. It also makes her less marketable as a
potential employee and I find there is a substantial possibility that she has
lost the ability to take advantage of other job opportunities in the future.

[174]     I have
considered the decisions of Rayner and Fell to which I have been referred
by the Plaintiff.

[175]    
In Rayner, the male plaintiff had ongoing injuries similar to
those of the Plaintiff that negatively impacted his lifestyle in terms of
recreational activities and his ability to do the heavier work of a journeyman
carpenter. Mr. Justice Kelleher awarded the plaintiff $85,000 for loss of
future capacity. Kelleher J., at para. 47, quoted the apt comments of Mr. Justice
McEwan in Brechin v. Pickering, 2012 BCSC 1300 where he stated:

[99]        
The possibility of a future event is not specifically that Mr. Brechin
will be laid off because of his condition, which is relatively unlikely, given
that the medical evidence suggests that his condition is not disabling, but the
more general vagaries of business that have made employment “for life”, once a
common expectation, highly uncertain. Should Mr. Brechin lose his position
for such a reason he would be put back into a competitive environment where a
fraction of the heaviest work would be lost to him.

[176]     In Fell,
Madam Justice Fenlon (as she then was) awarded $50,000 for future loss of
capacity to the female plaintiff using the capital asset approach. The
plaintiff suffered from soft tissue injuries and headaches arising from a motor
vehicle collision. She was self-employed and had previously worked in the film
industry for ten years where she made a good income working long hours
as a first aid/craft services provider. As a result of the continuing effects
of her injuries she was unable to continue in that line of work and was going
to retrain to become a lab technician. Fenlon J. made the above award,
commenting at para. 67 that, “Assessing the future loss of earning
capacity in this case does not lend itself to a precise mathematical
calculation of lost earnings.”

[177]     In
assessing whether the evidence establishes a real and substantial possibility
that the Plaintiff will earn less in the future because of the neck pain and
headaches she continues to suffer from as a result of the soft tissue injuries
she received in the accident, I take the following factors into account:

1.    Dr. Finlayson’s
evidence is that the Plaintiff’s prognosis for improvement is good with the
interventions listed, but that she is unlikely to have permanent and complete
elimination of her pain and “will have at least intermittent flares of her pain
into the foreseeable future” requiring occasional days off or cancelled
meetings, as well as “assistance with work that requires sustained static
postures”.

2.    The Plaintiff
continues to work as an interior designer and the firm she started with Ms. McCarthy
after the accident is doing well.

3.    She continues to
be a hard-working, respected interior designer.

4.    The Plaintiff’s
pain and headaches, which are sometimes very severe and debilitating, make it
difficult for her on occasion to attend meetings or appointments and she has to
cancel and reschedule them.

5.    Similarly, the
Plaintiff’s continuing neck pain and headaches have limited the time she can
spend at a computer, in particular the long hours required for auto-CAD design
drafting.

6.    In the event of
a downturn in the fortunes of McCarthy Hinder Interior Design and/or the
interior design market generally, the Plaintiff’s pain and headaches would
limit her ability to do the auto-CAD work generally required of employees in
the industry.

[178]     Taking
these factors into account I assess the Plaintiff’s future loss of capacity at
$45,000.

D. Loss of housekeeping capacity

[179]     To the
extent that the Plaintiff is advancing a claim for an award for loss of
housekeeping capacity, counsel for the Defendants reminds the Court that a loss
of capacity award is intended to compensate the Plaintiff for the loss of a
capital asset – the personal capacity to perform work that would have had value
for the Plaintiff or others. The Defendants submit that the evidence does not
establish that the Plaintiff has any significant limitations in relation to
house work, particularly given the effort she expends on her work and
recreational activities.

[180]     I accept
this submission. I do not find a sufficient basis in the evidence to award the
Plaintiff an amount to represent a loss to her housekeeping capacity related to
the injuries she sustained in the accident. The Plaintiff’s evidence was that
prior to moving in with Mr. Breadner late in 2014, she managed to take
care of a one-bedroom place, and she did not refer to any difficulties in doing
so. Since the Plaintiff has moved into a three bedroom town house with Mr. Breadner
(and his young son, part-time), meal preparation and household chores have
increased and appear to be shared.

[181]     The
Plaintiff testified that she experienced pain while doing certain cooking and
cleaning tasks, and Mr. Breadner testified that the Plaintiff experiences
pain and headaches at the end of the day and may have to lie down on the floor
after preparing dinner. It is impossible to assess what loss of housekeeping
capacity the Plaintiff has suffered, if any, given the time and energy she
devotes to her work and other activities. To some extent, given that both
parties work outside the home, these tasks are likely to be shared in any event
or may be performed by outside help in the future. I do note that the Plaintiff
did not have to hire housekeeping help in the years immediately after the
accident prior to her relatively new living arrangement with Mr. Breadner
that involves a larger home, more meal preparation and part-time care of a
two-year-old child.

[182]     Therefore,
I find that the Plaintiff has not met the onus upon her to show that she has
lost the personal capacity to perform housekeeping tasks of value to her or
others.

E. Special damages

[183]     The
Plaintiff’s schedule of special damages (Exhibit 3, Tab 5) totals $997.63 plus
mileage. On behalf of the Defendants it is accepted that she incurred these
expenses arising from the accident, with the exception of the Enterprise car
rental expense incurred by her former partner. While the Defendants dispute
that the recent physiotherapy visit and some of the Plaintiff’s visits to her
family doctor were for matters related to the accident, nevertheless the
Defendants agree that the amount of $1,000 is an appropriate award for special
damages in this case.

[184]     The Court
awards the Plaintiff an amount of $1,000 for special damages.

F. Future care and treatment costs

[185]     Dr. Finlayson
recommended in her report that the Plaintiff pursue a number of further
diagnostic measures, certain treatments options and types of care. In
particular, Dr. Finlayson recommended that the Plaintiff have an MRI of
her cervical spine to rule out other conditions that may be contributing to her
neck pain and to facilitate further interventional procedures such as
injections to her spine, should they be necessary. As the wait list is long for
an MRI in the public system, Dr. Finlayson recommended that one be
obtained privately on an expedited basis.

[186]     Dr. Finlayson
also indicated that the Plaintiff is a candidate for interventional diagnostic
and therapeutic procedures of the spine that may include anaesthetic injections
of the cervical facet joints to determine if there is a specific level that is
the primary contributor to her pain; and if one or more specific joints are
identified, then the Plaintiff may be a candidate for a longer-lasting
procedure called a radiofrequency neurotomy, which can reduce pain for six to
18 months, and may be repeated. Similar to obtaining an MRI, this type of treatment
is best accessed through the private health system, as the wait list through
the public system is extremely lengthy and may take one to two years or more. Dr. Finlayson
recommended that the Plaintiff be assessed and potentially treated in a private
facility, such as False Creek Surgical Centre.

[187]     As it
appears that the Plaintiff benefited from the exercises prescribed by a
physiotherapist to address her injuries and pain after the accident, Dr. Finlayson
was of the view that the Plaintiff should be reassessed by a physiotherapist
for approximately five sessions to ensure that she continues to progress and
performs the prescribed exercises correctly. In addition, Dr. Finlayson
was of the view that the Plaintiff may also require intermittent treatment of
five to six sessions a year from a physiotherapist to help with pain management
if her pain flares up and does not respond to medications, stretches and her
current exercise program.

[188]     Finally, Dr. Finlayson
recommended that the Plaintiff be assessed by a physiatrist for consideration
of trigger-point injections and/or other treatments for her neck pain and
headaches, which would require a referral from her family physician.

[189]    
The principles to be applied to an assessment of the cost of future care
are summarized by Madam Justice Fitzpatrick in Langille v. Nguyen, 2013
BCSC 1460, as follows:

[231]     The plaintiff is entitled to
compensation for the cost of future care based on what is reasonably necessary
to restore her to her pre-accident condition, insofar as that is possible. When
full restoration cannot be achieved, the court must strive to assure full
compensation through the provision of adequate future care. The award is to be
based on what is reasonably necessary on the medical evidence to preserve and
promote the plaintiff’s mental and physical health: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar
et al. v. Beazley et al., 2002 BCSC 1104.

[232]     The test for determining the
appropriate award under the heading of cost of future care is an objective one
based on medical evidence. For an award of future care: (1)
there must be a medical justification for claims for cost of future care; and
(2) the claims must be reasonable: Milina v. Bartsch at 84.

[233]    
Future care costs must be justified both because they are medically necessary
and are likely to be incurred by the plaintiff. The award of damages is thus a
matter of prediction as to what will happen in future. If a plaintiff has not
used a particular item or service in the past, it may be inappropriate to
include its cost in a future care award: Izony v. Weidlich, 2006 BCSC
1315 at para. 74.

[190]     Counsel
for the Plaintiff submits that a reasonable estimate of the Plaintiff’s future
care needs would be approximately $5,000. This figure includes the cost of an
initial spinal assessment at a private clinic and the treatments that Dr. Finlayson
indicated would cost “thousands” of dollars after that. In addition, counsel
submits that the Plaintiff may have to start buying her own anti-inflammatory
medication instead of receiving Ponstan from her mother. Based on her single
expenditure of $14.09 for cyclobenzaprine, counsel projects an amount of
$169.08 per year; over 40 years, this would result in an amount of over $6,700
(which would then have to be discounted to present value). An amount of $5,000
would reasonably reflect the Plaintiff’s future care needs identified by Dr. Finlayson,
including the cost of future medication, user fees for any future acupuncture,
physiotherapy and any treatment or therapy following a spinal assessment at a
private clinic.

[191]     Counsel
for the Defendants reminded the Court that there must be a medical
justification for claims for cost of future care and that the claims must be
reasonable. Counsel pointed out that the only medical-legal report before the
Court by Dr. Finlayson, written on May 1, 2014, was approaching a year old
as of the date of trial. In her report, Dr. Finlayson indicated that the
Plaintiff would be a candidate for a number of treatment options, including an
MRI and an assessment by a different specialist in Physical Medicine and
Rehabilitation. Although an MRI has been obtained, Dr. Finlayson has not
provided a further opinion regarding the Plaintiff’s future treatment needs.
Additionally, while the Plaintiff has seen Dr. Wee, a specialist in
Physical Medicine and Rehabilitation, the Plaintiff indicated on
cross-examination that Dr. Wee only advised her to do some stretching and
self-massage. The position taken on behalf of the Defendants is, given the lack
of treatment the Plaintiff has pursued in the recent past, it is difficult to
accept that these claims related to cost of future care are reasonable and
causally linked to the accident.

[192]     Based on
the report and evidence of Dr. Finlayson I find that the amount of $5,000
accurately reflects a reasonable assessment of the Plaintiff’s future care
needs. It is clear based on the findings of Dr. Finlayson that the
Plaintiff will continue to require at least over-the-counter pain medication to
assist her with ameliorating the effects of her neck pain and headaches. It is
not reasonable to assume that the Plaintiff will continue to receive a supply
of Ponstan from her mother in Switzerland indefinitely. It is also likely that
the Plaintiff may pursue some of the treatments discussed by Dr. Finlayson
to assist her to reduce or better manage her neck pain and headaches going
forward. Given Dr. Finlayson’s comments with regards to the length of wait
lists for some of these treatments and the existence of a private option, the
Plaintiff may reasonably choose to go to a private clinic. Finally, the
Plaintiff having done the physiotherapy exercises recommended to her by a
physiotherapist in the year after the accident, it is both reasonable and
medically recommended that she be assessed by a physiotherapist.

[193]     In
conclusion, I regard the amount of $5,000 for future care costs to be
reasonable, supported by the medical evidence and likely a conservative figure.

G. Interest and Costs

[194]     Unless the
parties wish to make submissions as to costs, the Plaintiff is entitled to
recover her costs and disbursements from this action at Scale B.

[195]     The
Plaintiff is also entitled to pre-judgment interest at the prevailing rate on
the awards for past loss of capacity and special damages in accordance with the
Court Order Interest Act, R.S.B.C. 1996, c. 79.

Conclusion

[196]      For these reasons I find that the Defendant Driver
and vicariously, the Defendant Company, 100 percent liable for the accident and
that the Plaintiff is entitled to the following relief:

1.    $60,000
for non-pecuniary loss;

2.    $15,000
for past loss of capacity;

3.    $45,000
for future loss of capacity;

4.    $1,000
for special damages;

5.    $5,000
for costs of future care;

6.    Pre-judgment
interest at the prevailing rate; and,

7.    Costs
at Scale B unless further submissions are made.

“The Honourable Madam Justice E.A. Arnold-Bailey”