IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160113

Docket: 49928

Registry:
Vernon

Between:

Wednesday Birkich,
an Infant by her Litigation Guardian Dodi Sutton

Plaintiff

And

Ralph Cantafio

Defendant

Before:
The Honourable Mr. Justice Betton

Reasons for Judgment

Introduction

[1]            
The plaintiff seeks damages for injuries she received as a pedestrian
when she was struck in a crosswalk by a pickup truck driven by the defendant.
The defendant admits liability for the incident.

[2]            
The principal injuries claimed are a mild traumatic brain injury
(“MTBI”) or concussion and psychological injury and/or conditions. There is no
dispute that the plaintiff received a concussion.

[3]            
The plaintiff was 17 years old at the time of the incident. She had a
difficult childhood and left home at age 13. After the incident, and unrelated
to it, she encountered several significant personal challenges and psychosocial
stressors.

[4]            
The pre and post-incident events, together with the incident itself,
have combined to create a difficult situation for the plaintiff. So too they
give rise to challenges in understanding and identifying the compensable
results of the motor vehicle incident.

Background

[5]            
The incident occurred on August 29, 2011, at approximately 2:00 p.m., as
the plaintiff was walking to her work at Starbucks in Vernon, British Columbia.
She was proceeding across a marked crosswalk on 27th Street when she was struck
by a full-sized, Dodge pickup truck operated by the defendant.

[6]            
Based on photographic evidence, the plaintiff was thrown some distance from
the crosswalk. Those photos show first responders and/or emergency health
services at the scene attending to the plaintiff approximately 15-20 feet from
the crosswalk. She was transported to Vernon Jubilee Hospital and released
later that evening.

[7]            
Observable injuries included abrasions to her left knee, right shoulder
and a contusion to her right forehead. Her Glasgow Coma Scale score was 14 and
there was no witnessed loss of consciousness. She was noted to be amnestic to
the event. A CT scan of her head was negative. At discharge, the diagnosis was
concussion and multiple contusions/abrasions.

[8]            
The plaintiff did not have a family physician at the time of the incident
and initial treatment after her discharge from hospital was through walk-in
clinics. She first saw Dr. Poulin when he took her as a patient in his
family practice on November 25, 2011. He has remained her family physician since.

[9]            
In addition to being followed by Dr. Poulin, the plaintiff has been
assessed by numerous medical experts since the incident. Almost all of them
have been retained as experts by either the plaintiff or the defendant in these
proceedings. Those include Dr. Apel and Dr. Travlos, physiatrists; Dr. Rasmusen,
psychiatrist; Dr. Kaushansky, neuropsychologist; Dr. Wallace, a
rehabilitation psychologist in vocational rehabilitation; and Lydia Phillips
and Mary-jo Mulgrew, occupational therapists. The plaintiff also received
treatment from a psychologist, Dr. Patricia Neilson, and a kinesiologist,
Tim Cooper, but no reports from them were entered into evidence.

[10]        
Generally, the plaintiff recovered uneventfully from the abrasions and
contusions.

[11]        
She complains of some ongoing left knee symptoms and soft tissue
complaints.

[12]        
The principal lasting complaints are of headaches and dizziness,
together with cognitive deficits, anxiety and depression.

[13]        
The plaintiff was born on February 17, 1994. Her childhood was marked by
significant psychosocial events and stressors. Her parents separated when she
was four years old and her father was not a part of her life thereafter. Her
mother was not involved in positive and supportive relationships. Perhaps most
dramatically, for two to three years between the ages of 11 and 13, the
plaintiff was a victim of sexual abuse by her mother’s former boyfriend. When
the plaintiff disclosed the sexual abuse to her mother, her mother did not end
the relationship with that boyfriend, prompting the plaintiff to leave her mother’s
home at the age of 13.

[14]        
From that point to the date of the motor vehicle incident, the plaintiff
had found refuse periodically in the home of a friend, Tamara Jensen. Tamara’s
mother, Jeannette Jensen, was a foster parent. The plaintiff did not, however,
live consistently in the Jensen household. She left at points in time to live
with other friends. At other points in time, she left to reside with her
mother, but was always able to return to the Jensen home for some stability for
varying lengths of time.

[15]        
The plaintiff made an effort to connect with her father in December
2009, but that too was a negative experience.

[16]        
The plaintiff obtained Grade 8 education. While in school, issues of
truancy arose. In addition, the plaintiff associated with some peers who were
not positive influences. The extent to which the plaintiff consumed marihuana
or other drugs or alcohol was the subject of some dispute. I will address the
extent and relevance of this later in these reasons.

[17]        
At times prior to the motor vehicle incident, the plaintiff’s struggle
with her personal situation was more apparent than at others. She engaged in
some self-harm which she referred to as “cutting”. That led to an attendance at
hospital on one occasion on August 24, 2009, apparently at the instigation of Ms. Jensen.
The records indicate the presenting complaint was “suicidal thoughts”. No clear
evidence of any subsequent treatment or assessment is in evidence. The
plaintiff thought that she attended some counselling but there are no records
in evidence.

[18]        
The plaintiff was injured in a school skiing incident in 2006, where she
suffered a concussion and a left knee injury. That included a fracture of the
growth plate in her left knee, leaving her with some ongoing symptoms. The
extent and severity of those symptoms was again the subject of some dispute,
which I will also address later in these reasons.

[19]        
In or about the fall of 2009, the plaintiff stayed for a period of time
in Vernon, B.C. During that time, she lived with an aunt and then in a
residence of her father’s. Her efforts to reconnect with her father failed
after it became apparent to her that he was a drug dealer living a very
unhealthy lifestyle and unwilling or unable to provide a suitable home for the
plaintiff.

[20]        
The precise timing of her moves, the specific events that precipitated
her moves and the sequence of those events is somewhat difficult to discern
from the evidence. It is apparent, however, that the plaintiff spent time in
100 Mile House, where the Jensens lived, in Vernon, where her father lived, in Clinton,
where her mother stayed for at least some time, and in Red Deer and Brooks,
Alberta, with friends.

[21]        
The plaintiff did have employment prior to the motor vehicle incident.
That included A&W, Tim Horton’s, Subway, Bargain Shop and Starbucks. All
except Starbucks were very short in duration. Her employment at Starbucks was
the employment she held at the time of the motor vehicle incident. She began
there as a barista in Red Deer, Alberta, in the fall of 2010. She transferred
to the Vernon Starbucks in the spring of 2011. She continued that employment to
the time of the incident and was walking to work at the time that she was
struck.

[22]        
The plaintiff formed a relationship with Tyrell Lariviere after she
moved to Vernon, but before the motor vehicle incident. They started dating in
July 2011. At that time, he was not employed and had a son who was not living
with him. The relationship with Mr. Lariviere was not a positive one,
although that was not a well-established fact in the plaintiff’s mind prior to
the motor vehicle incident.

[23]        
Following her release from hospital after the incident, the plaintiff
struggled to deal with her situation. She had limited finances, limited
supports and the symptoms of headaches, dizziness and impaired cognition
created challenges. As will be discussed in some detail below, these issues
together with subsequent events led to psychological conditions including
serious depression.

[24]        
She made an effort to return to work at Starbucks. That was over a
period of approximately two months in October and November 2011. The plaintiff
terminated that effort as she found herself unable to cope with the demands of
the job. She has not returned to work since.

[25]        
In addition to the injuries, symptoms and issues attributed to the motor
vehicle incident, the plaintiff has also experienced a number of psychosocial
stressors since the motor vehicle incident. In or about December 2011, she
learned that she was pregnant by Mr. Lariviere. Her son, Ty, was born on
August 10, 2012.

[26]        
The plaintiff and Mr. Lariviere made a decision that they would
also assume a parenting role for Mr. Lariviere’s two-year old son, Kayden.
Kayden began residing with them about 3 weeks after Ty was born. Kayden was a
very challenging child to deal with, exhibiting a number of behavioural issues.
The cause of those issues is not material, but to provide perspective, it is
theorized that Kayden’s mother may have been a methamphetamine user during
pregnancy.

[27]        
In addition, the plaintiff’s relationship with Mr. Lariviere
deteriorated as it became apparent that Mr. Lariviere was not a supportive
father. In fact, he was verbally abusive toward the plaintiff, provided little
or no financial or parenting assistance and was not emotionally supportive.

[28]        
The plaintiff terminated her relationship with Mr. Lariviere in
July 2014. Kayden remained in her care until April 2015. Initially the
plaintiff moved into a transition house before finding a more permanent
residence.

[29]        
The dates of the assessments by the various experts are as follows:

·       Dr. Maryana
Apel, Medical Legal Report dated February 12, 2013

·       Ms. Lydia
Phillips, Functional Capacity Evaluation and Cost of Future Care Report dated
May 14, 2014

·       Dr. Lee
Rasmusen, Medical Legal Report dated May 20, 2014

·       Dr. Andrew
Travlos, Medical Legal Report dated May 23, 2014 and Addendum dated May 28,
2014

·       Dr. Mel
Kaushansky, Medical Legal Report dated March 31, 2015

·       Dr. Gordon
Wallace, Vocational Assessment dated June 24, 2015

·       Dr. Brett
Poulin, Medical Legal Report dated July 29, 2015

·       Ms. Mary
Jo Mulgrew, Cost of Future Care Rebuttal Report dated August 6, 2015

·      
Mr. Curtis Peever, Associated Economic Consulting, Future
Loss of Earnings and Non-Wage Benefits Report dated September 15, 2015

Issues and Positions of the Parties

Contributory negligence

[30]        
As noted in the introduction, the defendant admits liability for the
motor vehicle incident. He does, however, argue that the plaintiff is
contributorily negligent on the basis that she did not fulfill her duty to act
with due care for her own safety.

[31]        
To support this argument the defence relies entirely upon a diagram of
the accident scene drawn by the plaintiff in April 2012. The defendant says
that that diagram suggests that the plaintiff was aware of the defendant’s
approaching vehicle when she entered the crosswalk and thereby failed to take
reasonable care for her own safety and should be held to be between 10 and 20
percent responsible for her own injuries.

[32]        
The plaintiff argues that the diagram was drawn only on the strength of
information from others and does not represent her own recollection of the
incident. She says that she has no recollection of the incident or the events
leading up to it and, as a result, there is no evidence to support the
assertion that she was in fact aware of the defendant’s approach to the
intersection when she entered into the crosswalk.

Damages

Causation

[33]        
The plaintiff says she received a MTBI. In addition, the plaintiff says
that she has suffered a psychological/psychiatric injury which, in concert with
her MTBI, has led to significant and ongoing headaches and dizziness, cognitive
dysfunction and debilitating depression and anxiety. There are additional
injuries claimed including chronic pain, myofascial pain syndrome and
fibromyalgia, although the plaintiff did not vigorously pursue the existence or
effect of these in argument.

[34]        
The plaintiff says that applying the causation analysis established by
the Supreme Court of Canada must result in a conclusion that the defendant is
liable for all of the physical and emotional problems that the plaintiff has
faced since the incident and will face into the future. Accordingly, she
advances claims for non-pecuniary damages, loss of earnings capacity and cost
of future care.

[35]        
She says that she is and will remain competitively unemployable.

[36]        
She is not advancing any claim for past loss of income.

[37]        
The parties have settled the claim for special damages.

[38]        
The defendant agrees that causation must be determined by applying the
“but for” test, as articulated by the Supreme Court of Canada, but says that
the plaintiff has not proved that the defendant caused the depression, anxiety
or cognitive dysfunction. The defendant argues that those issues are a product
of her pre and post-incident psychosocial stressors.

[39]        
The question raised by the parties is, in essence, whether:

·      
the plaintiff was a resilient young women who, despite the
challenges she faced, had managed to persevere and establish a productive and
healthy trajectory that was derailed by the motor vehicle incident; or

·      
she was struggling before the incident and had been unable to establish
any stability and was destined to marginal success or even crumble under the weight
of her life’s circumstances even without the motor vehicle incident.

[40]        
In relation to the alleged conditions of fibromyalgia and myofascial
pain syndrome, the defence says the plaintiff simply has not proved that she
suffers from those conditions. Further or alternatively, the defendant says to
the extent these conditions exist and were caused by the defendant’s
negligence, they have resolved.

Non-pecuniary damages

[41]        
The plaintiff says that she has been left with serious and debilitating
symptoms that have seriously affected her life and are permanent. She says that
she has become socially isolated with no real desire or ability to engage in
meaningful relationships, including with her own son. She says that she cannot
be a fully engaged parent or set the example for her son that she wishes to.
She is unable to pursue employment or recreation in any meaningful way. She
argues that, in those circumstances, non-pecuniary damages should be assessed
in the range of $175,000 to $200,000.

[42]        
The defendant says that the plaintiff has recovered from the injuries
that were caused by the motor vehicle incident, including her concussion and
post-concussion syndrome, headaches associated with her injuries from the
incident and the exacerbation of her pre-existing, left knee injury and any
soft tissue injuries. He argues that a non-pecuniary damage award in the range
of $85,000 to $95,000 is appropriate.

Loss of future earning capacity

[43]        
The plaintiff says that the combined effect of her symptoms has been and
continues to be to render her incapable of competitive employment. Based on her
pre-incident employment and specifically and particularly with Starbucks, and
her personality, she says she would have had a productive work life to age 70. She
says she would have returned to the workforce when her son entered school.
Relying on present value calculators as a frame of reference, the plaintiff
says that an appropriate award for loss of earning capacity is $700,000.

[44]        
The defendant says that the plaintiff is physically capable of working. He
also argues that the plaintiff’s instability prior to the incident, her psychosocial
situation and the developments after the incident that are not related to the
incident indicate the plaintiff would not have been successful in pursuing
employment, even if the incident had not occurred. He says the plaintiff’s
earnings capacity independent of the collision was modest.

[45]        
The defendant submits that the result is that if there is any established
loss of earnings capacity, it is in the range of $50,000 to $75,000.

Cost of future care

[46]        
The plaintiff relies on the opinions of the occupational therapist,
Lydia Phillips, and the comments on her recommendations by Dr. Travlos. Dr. Travlos
generally supported those recommendations but felt the level of assistance from
a mother’s helper in the long term was excessive. The plaintiff’s actuarial
report provides various calculations of present value based on the costs ranges
provided by Ms. Phillips. The range of values depending on the scenarios
provided by Ms. Phillips is from $28,596 to $199,236. All of these reports
were completed prior to the plaintiff’s separation from Mr. Lariviere and
his son.

[47]        
The plaintiff acknowledges that some adjustments to Ms. Phillips’
recommendations are appropriate since she now has only her son in her care. The
net present value of the costs claimed is $125,601.

[48]        
The defendant says that Ms. Phillips’ opinions were formulated at
the time when the plaintiff was still caring for Kayden and when her
psychiatric and psychological condition was at its worst. Based on the
defendant’s position regarding causation, together with the evidence that
suggests improvement in the plaintiff’s psychosocial situation and supported by
the opinions of Ms. Mulgrew, the defendant says that the future care plan
is excessive. In addition, the defence argues that the plaintiff has clearly
expressed a lack of interest in pursuing a number of the recommendations made
by Ms. Phillips and, accordingly, a much more modest award is appropriate.
The defendant says an appropriate award is $6,836.

[49]        
The defendant also argues that there should be a reduction in the
plaintiff’s award of 10 to 20 percent on the basis that she has failed to
mitigate her losses by failing to follow the recommendations of her family
physician and the experts retained on her behalf. This was acknowledged to be a
difficult position to support on the evidence.

Analysis

Contributory negligence

[50]        
Section 179 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,
reads as follows:

179      (1)        Subject to section 180, the driver of a
vehicle must yield the right of way to a pedestrian where traffic control
signals are not in place or not in operation when the pedestrian is crossing
the highway in a crosswalk and the pedestrian is on the half of the highway on
which the vehicle is travelling, or is approaching so closely from the other
half of the highway that he or she is in danger.

 (2)        A pedestrian must not leave a curb or
other place of safety and walk or run into the path of a vehicle that is so
close it is impracticable for the driver to yield the right of way.

 (3)        If a
vehicle is slowing down or stopped at a crosswalk or at an intersection to
permit a pedestrian to cross the highway, the driver of a vehicle approaching
from the rear must not overtake and pass the vehicle that is slowing down or
stopped.

[51]        
A pedestrian who proceeds into a crosswalk must exercise due care.
Section 179 places obligations on both the driver and the pedestrian to make
assessments of their particular circumstances in deciding whether to proceed or
yield.

[52]        
Through excerpts of the defendant’s examination for discovery which were
read into evidence, the defendant confirmed that he did not apply his brakes
until the impact with the plaintiff. He could not say whether the vehicle next
to him proceeding in the same direction on the four-lane road was stopped or
not. The plaintiff was wearing bright clothing, the visibility was good and she
was in the crosswalk.

[53]        
The defendant acknowledges that the only evidence upon which a finding
of contributory negligence could be based is the diagram drawn by the
plaintiff. The plaintiff was clear in her testimony that she could not say that
the diagram represented the actual circumstances, as she does not remember what
happened. It is my conclusion that it was a reconstruction based on the
understanding of the incident that she formulated after the fact. The most
compelling evidence of the plaintiff’s amnesia is the hospital record on her
admission. She has generally been consistent thereafter in reporting no memory
of the actual incident but there are exceptions that she explains on the same
basis as the diagram.

[54]        
In addition, the diagram suggests that there was a vehicle stopped in
the curb lane with the defendant’s vehicle approaching in the center lane
creating an obligation on the defendant to yield.

[55]        
Further, and even if I were to conclude the plaintiff did have a
recollection of the incident, there is no basis to conclude that the
defendant’s vehicle was so close that it was impractical for the defendant to
yield the right of way or, more generally, that the plaintiff proceeded
incautiously.

[56]        
The onus is upon the defendant to prove contributory negligence. The
evidence in support of the argument is simply not sufficient to discharge that
burden.

Damages

[57]        
In Athey v. Leonati [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, the
Supreme Court of Canada confirmed that the objective of a damage award in
negligence is to return the plaintiff to the position that she would have been
in, absent the defendant’s negligence. That is to say, to return her to her
original position (at para. 32).

Causation

[58]        
In this portion of the decision I will set out my conclusions as to
which of the claimed injuries or conditions have been proved to exist and of
those which have been caused by the defendant’s negligence.

[59]        
The most recent significant comment from the Supreme Court of Canada on causation
is found in Clements v. Clements, 2012 SCC 32:

[8]        The test for showing causation is the “but for”
test. The plaintiff must show on a balance of probabilities that “but for” the
defendant’s negligent act, the injury would not have occurred. Inherent in the
phrase “but for” is the requirement that the defendant’s negligence was necessary
to bring about the injury — in other words that the injury would not have
occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff
does not establish this on a balance of probabilities, having regard to all the
evidence, her action against the defendant fails.

[9]        The “but for”
causation test must be applied in a robust common sense fashion. There is no
need for scientific evidence of the precise contribution the defendant’s
negligence made to the inquiry. See Wilsher v. Essex Area Health Authority,
[1988] A.C. 1074 (H.L.), at p. 1090, per Lord Bridge; Snell v.
Farrell, [1990] 2 S.C.R. 311.

[60]        
Applying this test to specific circumstances can be challenging. This
case requires the analysis of the effect of events subsequent to the negligent
act that have aggravated or contributed to the injuries.

[61]        
An injury is said to be indivisible if it cannot be divided into
distinct parts. Where there are multiple tortfeasors causing or contributing to
a single indivisible injury, they are jointly liable to the plaintiff (Bradley
v. Groves, 2010 BCCA 361 at paras. 34, 37, leave to appeal ref’d
[2010] SCCA No. 337).

[62]        
This case involves the interaction of the injuries caused by the
defendant and non-tortious events. A case which bears some similarity on its
facts and addresses the causation analysis in such a context is Zhang v. Law,
2009 BCSC 991. There, the plaintiff suffered a MTBI in a motor vehicle
collision and after that experienced some significant psychosocial stressors.
The court noted as follows:

[67]      In the period between March 4, 2001 and December
2002, Ms. Zhang had been injured in the motor vehicle accident which
caused her virtually constant pain and which she believed caused her cognitive
difficulties, had learned that her husband had a life threatening heart
condition, had lost a child after being pregnant for 8 months, and had
terminated a subsequent pregnancy for medical reasons. In my view the
depression which either developed or became acute in late 2002 was caused by a
combination of the above factors. All of the doctors who testified agreed that
chronic pain and MTBI are significant risk factors for depression. I conclude
that the depression was an indivisible injury and that the injuries suffered in
the motor vehicle accident were a necessary contributing cause of the
depression.

[73]      Before turning to a
discussion of damages I will briefly address the legal arguments made before
me. Mr. Murray’s primary submission was that the depression suffered by Ms. Zhang
was not caused by the negligence of the defendants. In my view this case is
governed by the principles enunciated in the Supreme Court of Canada in Athey
v. Leonati [1996] 3 SCR 458. On the issue of causation I have already found
that the injuries suffered in the motor vehicle accident were a necessary cause
of the depression. To paraphrase paragraph 41 of Athey, I have found
that it was necessary to have both the injuries from the accident and the
non-tortious causes for the depression to occur. As in Athey, I have
concluded that it was the combination of the accident, the effect of Mr. Chen’s
illness, the loss of the foetus and the termination of the second pregnancy
which caused the major and continuing depression. The depression and continuing
depressive symptoms are, in my opinion, an indivisible injury. The other
sources of Ms. Zhang’s difficulties, soft tissue injury and MTBI, are of
course entirely attributable to the accident.

[63]        
Another case that shares similar issues but led to a very different
result is Thiessen v. Kover, 2008 BCSC 1445 (Thiessen). It provides
a useful summary of law:

[136]    As I have already stated at the beginning of these
reasons, the basic test for determining causation remains the "but
for" test. This applies to multi-cause injuries (Athey v. Leonati, [1996] 3 S.C.R. 458
at paras. 13-14). Throughout, the plaintiff bears the burden of showing
that "but for" the negligent act or omission of a defendant, the
injury would not have occurred.

[137]    In the recent decision of Hanke v. Resurfice
Corp., 2007 SCC 7, at para. 23, the Supreme Court of Canada
commented, with respect to this rule, as follows:

The "but for" test
recognizes that compensation for negligent conduct should only be made
"where a substantial connection between the injury and the defendant’s
conduct" is present. It ensures that a defendant will not be held liable
for the plaintiff’s injuries where they "may very well be due to factors
unconnected to the defendant and not the fault of anyone": Snell v.
Farrell, at p. 327, per Sopinka J.

[138]    In Blackwater v. Plint, [2005] 3
S.C.R. 3, the Supreme Court of Canada also dealt with the issue of legal
causation and was commented on extensively. In that decision the Court
confirmed that prior causes and subsequent causes of damages must be taken into
account by the trial judge even though it may be difficult to do so where there
are multiple causes. In this regard, Chief Justice McLachlin stated at para. 74:

…Untangling the different sources
of damage and loss may be nigh impossible. Yet the law requires that it be
done, since at law a plaintiff is entitled only to be compensated for loss
caused by the actionable wrong. It is the "essential purpose and most
basic principle of tort law" that the plaintiff be placed in the position
he or she would have been in had the tort not been committed: Athey v.
Leonati, [1996] 3 S.C.R. 458 (SCC), para. 32.

[139]    Further, commencing at para. 78 to 81, Madam
Justice McLachlin, in her reasons, stated as follows:

78        It is important to
distinguish between causation as the source of the loss and the rules of damage
assessment in tort. The rules of causation consider generally whether "but
for" the defendant’s acts, the plaintiff’s damages would have been
incurred on a balance of probabilities. Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway: Athey.
Mr. Barney’s submissions that injury from traumas other than the sexual
assault should not be excluded amount to the contention that once a tortious
act has been found to be a material cause of injury, the defendant becomes
liable for all damages complained of after, whether or not the defendant was
responsible for those damages.

79        At the same time, the
defendant takes his victim as he finds him ‑ the thin skull rule. Here
the victim suffered trauma before coming to AIRS. The question then becomes:
what was the effect of the sexual assault on him, in his already damaged
condition? The damages are damages caused by the sexual assaults, not the prior
condition. However, it is necessary to consider the prior condition to
determine what loss was caused by the assaults. Therefore, to the extent that
the evidence shows that the effect of the sexual assaults would have been
greater because of his pre-existing injury, that pre-existing condition can be
taken into account in assessing damages.

80        Where a second wrongful
act or contributory negligence of the plaintiff occurs after or along with the
first wrongful act, yet another scenario, sometimes called the "crumbling
skull" scenario, may arise. Each tortfeasor is entitled to have the
consequences of the acts of the other tortfeasor taken into account. The
defendant must compensate for the damages it actually caused but need not
compensate for the debilitating effects of the other wrongful act that would
have occurred anyway. This means that the damages of the tortfeasor may be
reduced by reason of other contributing causes: Athey, at paras. 32-36.

81        All these scenarios flow
from the basic principle that damages must seek to put the plaintiff in the
position he or she would have been in but for the tort for which the defendant
is liable.

[140]    In addition to these comments by Chief Justice
McLachlin it is also important to again consider the statements of Lambert J.A.
in Yoshikawa v. Yu set out in these reasons at para. 11.

[141]    Thus, if there is some realistic chance that the
plaintiff’s condition would have occurred at some point in the future without
the accident, including consideration of intervening events unrelated to the
motor vehicle accident, this will affect the quantum of damages. Thus the real
legal issue with respect to the psychiatric issues is whether or not the
evidence supports the proposition that the plaintiff would likely have suffered
from the psychiatric illness or conditions she now has if the accident had
never occurred, and if so, then to what degree.

[142]    Looking at the totality of the evidence regarding
the ongoing psychological conditions of Ms. Thiessen, I repeat again that
the burden or onus of proof is on the plaintiff to show that but for the
negligence of the defendant Kover the psychiatric or psychological conditions
now experienced by the plaintiff would not have occurred.

[143]    For the reasons set out,
I have concluded that Ms. Thiessen has not met this onus. Given her
history of pre-existing psychiatric illnesses and the numerous stressors of the
plaintiff that have been experienced by her prior to the accident and
subsequent to the accident, I have concluded the burden has not been met by the
plaintiff. I accept the evidence of Dr. Zoffman that it is, in all
probability, that her psychiatric or psychological conditions would have
evolved from the other stressors in her life other than stress related to the
motor vehicle accident.

[64]        
I will deal first with the constellation of complaints that include ongoing
headaches and dizziness, cognitive dysfunction and debilitating depression and
anxiety. Other descriptors have been used by the plaintiff for features of her
experience such as feeling overwhelmed, overheated, anxious, feeling like a
“zombie”, and not being able to multi-task. At points, medical experts, counsel
and the plaintiff have all described and/or referenced these symptoms in their
own way, sometimes creating a challenge to assimilate all of the evidence and
submissions. At times it is difficult to distinguish between what is an actual
injury, what is a discrete sequela resulting from an injury, and what is a
feeling or sensation that is a descriptor of either. In this part of my decision,
I refer to all of these collectively as the constellation of cognitive and
psychological complaints and distinguish them from the specific physical
injuries and the fibromyalgia and myofascial pain syndrome.

[65]        
Several of the plaintiff’s experts opine that the plaintiff suffered a MTBI
in the motor vehicle incident. This is based on the presence of physical injury
to her head, her reduced Glasgow Coma Scale score at the scene, her amnesia of
the event and some period of time following the event and the constellation of
symptoms of which she complained thereafter. The defence does not challenge this
conclusion.

[66]        
Dr. Travlos said in his May 23, 2014, report “[t]here is no
question that Ms. Birkich sustained a mild traumatic brain injury at the
time of this accident”. Dr. Kaushansky said, “[g]iven the indices around
the time of the accident which included a period of post-traumatic amnesia and
an altered Glasgow Coma Scale score, it is more likely that Ms. Birkich
sustained a concussion or what would be termed a ‘mild traumatic brain injury’”.
Dr. Kaushansky described the plaintiff as experiencing “typical
post-concussive symptoms which affected her cognition (primarily diminished
attention and memory as well as difficulties multi-tasking), her physical status
(photo/phono sensitivity, headaches, dizziness), and her mood (depression and
anxiety)”.

[67]        
Each of Drs. Travlos, Kaushansky and Rasmusen go on to comment on the
challenges in associating the ongoing complaints to that brain injury.

[68]        
Dr. Travlos opines that “[i]t is clear that the headaches arose
following the accident and likely the early headaches were part of a post-concussive
complaint” but that the “current headaches more likely reflect a combination of
chronic pain disorder, post-traumatic headaches and substantial psychosocial
stressors”. He described the dizziness as “hard to pin down” and that he does
“not really have a good explanation for her dizziness”. He goes on to say that
the plaintiff “has so much in the way of mental health issues that it is
impossible to tease out the underlying presence of any residual brain injury
problems. From my perspective, until these other mental health issues are
substantially settled the effects of any residual brain injury cannot be
assessed”.

[69]        
Dr. Kaushansky notes that most individuals recover from a MTBI such
as that suffered by the plaintiff but not all do. He says the test results revealed
that “there was no pattern of scores to suggest the sequelae of a traumatic
brain injury or the effects of physical pain or mood”:

The results of measures of mood and personality functioning
over both evaluations indicated a “severe” degree of depression as well as
ongoing features of anxiety. It is likely that such problems have their origins
in Ms. Birkich’s ongoing pain and significant financial and psychosocial
stressors in her life.

Thus “real world” data is lacking
which would allow a clearer delineation of the etiology of Ms. Birkich’s
community-based cognitive efficiencies [sic]. I would add that given the mild
nature of this injury Ms. Birkich is not at an increased risk for an early
onset neuro-degenerative disease.

[70]        
Dr. Rasmusen notes that there is significant overlap between the
symptoms associated with a MTBI and those associated with depression and
anxiety disorder.

[71]        
It is these noted difficulties in separating out the consequences of
brain injury from those associated with psychological conditions, including
depression and anxiety, which found, in part, the defence argument regarding
causation. Essentially, the defence assertion is that the plaintiff would
ultimately have suffered from the problems even if the motor vehicle incident
had not occurred; that the post-incident events heaped on the pre-incident status
would have led to the same end result. The critical flaw in this argument is
that the incident was in fact a significant traumatic event that did result in
a MTBI. There is no way to extract that from the circumstances or to say it
plays no role in her current situation. Not surprisingly, no expert opinion
supports the defence proposition, indeed they are to the contrary. In Thiessen,
there was specific medical opinion accepted by the trial judge that the
psychological conditions would have developed without the occurrence of the
motor vehicle collision. There is no such evidence here.

[72]        
It is my conclusion that the constellation of psychological and
cognitive injuries and sequelae are indivisible and that the injuries suffered
in the motor vehicle incident were a necessary contributing cause for their
development. Each of Drs. Travlos, Kaushansky and Rasmusen say that this is so.
On the evidence before me, the plaintiff was functioning reasonably well in the
weeks and months preceding the motor vehicle incident. Her history included
many stressors with some emotional and behavioural consequences. In the period
leading up to the motor vehicle incident, however, there is minimal evidence
that she was suffering from any specific conditions. She was apparently happily
engaged in her work and doing well at it. She was in her relationship with Mr. Lariviere
and generally happy in it.

[73]        
It took the motor vehicle incident to initiate the constellation of
symptoms that have plagued the plaintiff since. Certainly, her vulnerability
pre-incident influenced the severity of the consequences and the subsequent
events in the plaintiff’s life have had a negative impact on her symptoms and her
function but, as noted by Chief Justice McLachlin in the quote in para. 63
above, “It is important to distinguish between causation as the source of the
loss and the rules of damage assessment in tort.” That being so, the result in
this legal context is clear.

[74]        
To the extent that the defence challenges the continued existence of
some of the symptoms within this constellation or, alternatively, the severity
of them, I will deal with that in the damages portion of my analysis.

[75]        
I turn next to the plaintiff’s assertion that she suffers from
fibromyalgia and myofascial pain syndrome. The plaintiff’s claim is founded on
the opinion of Dr. Apel in her report of February 12, 2013. In her
testimony, Dr. Apel indicated that both fibromyalgia and myofascial pain
syndrome arise from changes in the brain’s perception of pain.

[76]        
She indicated that there are three criteria or markers that must be
satisfied in order to support a diagnosis of fibromyalgia. They include
widespread pain; symptoms present at a similar level for at least three months;
and that the patient does not have a disorder that would otherwise explain the
pain. Similarly, there are established criteria for the diagnosis of myofascial
pain syndrome.

[77]        
It is apparent on review of the cross-examination of Dr. Apel that
she did not find specific evidence to support the existence of the criteria
necessary to support the diagnoses. Rather, she engaged in a process of
extrapolation or assumption from the information that she did have in a way
that is simply not supportable in the evidence.

[78]        
An expert’s opinion must have the factual and evidentiary foundation to
support it and that is simply not the case in respect of these diagnoses.

[79]        
In addition, I note that Dr. Travlos, also a physiatrist, assessed
the plaintiff approximately 15 months later in May 2014. His report makes no
reference to fibromyalgia or myofascial pain syndrome. In his testimony,
however, he confirmed that in his assessment he found no basis to make those
diagnoses. Dr. Apel testified that the conditions, once established, could
be expected to be life-long in duration. Accordingly, the absence of any such
findings by Dr. Travlos supports my conclusion that the plaintiff has not
proved the existence of those conditions and the rejection of Dr. Apel’s
opinions in that regard.

[80]        
I do accept, however, that the plaintiff aggravated her pre-existing left
knee injury. On the whole of the evidence, I conclude that prior to the motor
vehicle incident it was not the source of significant restriction but that was,
in part, because she did not engage in activities that stressed it. After the acute
pain following the motor vehicle incident, the knee pain is again not a
prominent feature for her. I accept the characterization of Dr. Travlos as
follows:

It is probable that her current
symptoms are slightly worse than they would have been in the absence of this
accident, but one has to of course understand that she now has two young
children and is doing a lot more squatting and kneeling than she ever would
have done before. Previously, she avoided symptoms by avoiding kneeling or
running activities, but now she has to both keep up with the children and play
with them to some extent on the ground, increasing her loading on the knee and
hence the pains. Ms. Birkich needs to continue with an exercise program
for the knee and for strengthening of the entire leg.

[81]        
I also accept that the plaintiff received soft tissue injuries to her
upper back and neck. Initially these were quite bothersome but by the time of
his assessment in May 2014, Dr. Travlos noted only minor objective
indicators. In functional testing, limitations resulting from neck and shoulder
complaints appeared to also be minor. The plaintiff did not portray these as
significant issues in her evidence.

Non-pecuniary damages

[82]        
Perhaps the most often quoted decision setting out the general
principles associated with non-pecuniary damages is Stapley v. Hejslet,
2006 BCCA 34. That decision set out the following:

[45]      Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, supra, at 637 is a helpful
reminder:

 Thus the amount of an award for non-pecuniary
damage should not depend alone upon the seriousness of the injury but upon its
ability to ameliorate the condition of the victim considering his or her
particular situation. It therefore will not follow that in considering what
part of the maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury
Damages in Canada (1981), at p. 373). In dealing with an award of this
nature it will be impossible to develop a "tariff". An award will
vary in each case "to meet the specific circumstances of the individual
case" (Thornton at p. 284 of S.C.R.).

[Emphasis added in Stapley.]

[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 (QL), 2005 BCCA
54).

[83]        
All of this requires that findings of fact be made regarding the
plaintiff’s health prior to the incident, that is, her original position. There
must, of course, be findings made of her progress since the incident to the trial
and her long-term prognosis.

[84]        
There is considerable disagreement between the parties as to the
plaintiff’s original position. The plaintiff acknowledges her challenges prior
to the motor vehicle incident but indicates that she had found stability with
her work at Starbucks and was doing well both physically and emotionally. While
there is some substance to that position, it would be naïve to conclude that
such a young adult was unaffected by her past. She was a vulnerable individual
with a limited capacity to cope with further adversity. Dr. Travlos put it
in these terms:

Ms. Birkich’s pre-accident
history and records confirm a young girl with little in the way of support
systems, living on her own mostly, although getting some assistance to do so.
She was an individual at substantial risk of decompensation and was struggling
with mental health issues. She had had at least one nonspecific fainting
episode warranting admission to the emergency room, and was having intermittent
problems with her left knee.

[85]        
It is my conclusion that she did suffer a MTBI with a constellation of
symptoms thereafter consistent with that injury, including headaches, nausea
and dizziness. In addition, the typical behavioural or emotional symptoms of a MTBI
have been visited upon the plaintiff, including depression, anxiety and
cognitive deficiencies. Her recovery has been complicated by the psychosocial
stressors that have arisen since the motor vehicle incident. That list of
events is significant, including her young pregnancy, her problematic
relationship with Mr. Lariviere and the introduction into the family unit
of Mr. Lariviere’s challenging son. All of that, as noted by Dr. Travlos,
has made it impossible to tease out the underlying presence of any residual
brain injury problems.

[86]        
As noted by the defence, the timing of the assessments by the
plaintiff’s experts must be taken into consideration. All of their reports were
the product of assessments during or, at best, immediately after the period of
the cumulative effect of her pre-motor vehicle incident vulnerability, the
motor vehicle incident injury and the post-motor vehicle incident psychosocial
stressors. None were in a position to comment on her function after the removal
of some of the most significant post-incident stressors, most specifically, the
responsibility of caring for Mr. Lariviere’s son and extricating herself
from the relationship with Mr. Lariviere. They did, however, point out
that removal of psychosocial stressors would likely have a positive effect, the
magnitude of which could only be assessed after the fact. It would also be
influenced by the plaintiff’s access to and use of resources and services.

[87]        
In addition, the plaintiff’s frequent moves and living situation prior
to the motor vehicle incident resulted in her not having a regular family
physician and there being little continuity in records, generally, prior to the
motor vehicle incident.

[88]        
As a result, the plaintiff’s testimony and that of the lay witnesses and
their reliability takes on an added importance in assessing the plaintiff’s
original position. The credibility of the plaintiff in respect of her
description of her symptoms is particularly important. I will address that
here.

[89]        
Whatever the cause, the plaintiff’s recall of events prior to the motor
vehicle incident lacked reliability. She had real difficulty remembering
details and the sequence of events.

[90]        
In addition, having considered the whole of her evidence, I was left
with the impression that the plaintiff generally minimized or downplayed the
significance and effect of the problems she faced or decisions she made prior
to and after the incident. In my observation, she sought to portray herself in
a very favorable light, in very general terms and, when confronted with
specific evidence that contradicted that general description, would seek to
deflect responsibility to others and/or minimize and rationalize the event. Generally,
she resisted any suggestion that events or circumstances other than the motor
vehicle incident were significant contributors to her difficulties.

[91]        
While perhaps understandable, I would describe this as a biased recall.
I do not specifically conclude that the bias should be equated with a specific
intention to deceive but rather to be, at least in part, a product of her
condition and circumstances. While there is always context that can be provided
to events and circumstances, I am unable to accept that it is only the motor
vehicle incident that has contributed to her challenges.

[92]        
Some specific examples related to her use of marihuana, selection of
friends/associates and truancy at school. When asked about records of school
suspensions she was vague and would shift blame to others. The plaintiff
clearly had made some poor choices in these areas and yet the plaintiff was
unwilling to concede that to be so. Perhaps most significantly, in the context
of the issues in this case, the plaintiff minimized/was unwilling to
acknowledge the impact her psychosocial stressors had on her emotional health.
She had resorted to cutting herself in 2009. Although hospital records
referenced a history of attempted suicide, she steadfastly maintained that she
had never had any intention to actually take her life and tried to minimize the
significance of the cutting behaviour. She tried to portray it as insignificant
and that in fact she was coping well.

[93]        
The same applies to post-incident events, including the impact of her
failed effort to reconnect with her father, the failed relationship with Mr. Lariviere
and the stress of caring for his son. She was very resistant to acknowledge any
real impact from these events. I have no doubt that she strives to minimize the
impact of those events and circumstances but it is difficult to reconcile her
claimed resilience in those areas with a lack of that quality in respect of the
motor vehicle incident. Certainly, the plaintiff’s experts confirm the impact
of the other events and the overall cumulative effect.

[94]        
The combination of both a limited and biased recall results in my
conclusion that I must be cautious in accepting her evidence at face value.
Instead, I must view it through a lens shaped by an appreciation of those
frailties.

[95]        
Similar concerns relate to the evidence of Tamara Jensen. In her direct
evidence, she had nothing but praise for the plaintiff and her personality. In
cross-examination, however, it became apparent that Ms. Jensen in fact believed
that the plaintiff was making decisions to associate more with a negative peer
group, wasn’t attending school on a regular basis and was generally struggling
to establish herself in a positive and stable environment. Although they
obviously remained close, their paths were diverging.

[96]        
The same cannot be said of Lynn Sterling, the plaintiff’s former
supervisor at Starbucks. As noted below, she described the plaintiff’s work and
personality in very positive terms. Her knowledge of the plaintiff is purely
from her work affiliation.

[97]        
With those observations regarding the plaintiff and the lay witnesses in
mind, I also observe that the plaintiff has shown herself to be able to manage surprisingly
well in the face of a difficult youth with many major challenges. Despite those
things, she had shown a desire to work. I am inclined to agree with the
plaintiff’s experts who characterize her as being resilient. It is a quality
that should serve her well in recovery when aided with appropriate future care.

[98]        
She had periods of employment. Most were very short and could support
the defendant’s assertion that the plaintiff really was struggling to cope. One
must however keep in mind her age and circumstances and even getting multiple
jobs could be seen as an accomplishment. It supports an inference that she was
determined despite her challenges. Most significantly, she found the employment
with Starbucks and, in her particular circumstances, the maintenance of that
employment, albeit with a transfer part way through, for a period of several
months is a positive indicator that she was motivated and able to work steadily.
Ms. Sterling described the plaintiff’s work ethic, habits and motivation
in glowing terms. Despite any reservations I have regarding the plaintiff’s
reliability, I was impressed and do accept that she enjoyed that work, found
purpose in it and it gave her a haven from the negative aspects of her personal
situation.

[99]        
As noted, there are real gaps in any independent information aside from
her employment to assess the plaintiff’s position immediately before the
incident.

[100]     Another
important variable that affects all of the categories of damages is the
prognosis for recovery. Dr. Poulin was not able to offer much assistance
with respect to the prognosis. Dr. Apel found that the fibromyalgia and
myofascial pain syndrome would be chronic or long-term and possibly even
lifelong; however, given my earlier comments regarding Dr. Apel and the
absence of any findings of those conditions by Dr. Travlos, I give little
weight to that opinion.

[101]    
Dr. Travlos addressed the prognosis for each major symptom cluster
separately. In respect to headaches, he observed that there had been
improvement with medication and that they may yet improve “significantly with
treatment for her mental health”. In addition he said:

The final and clear intervention
that would definitely benefit her but that is not likely to be available is
that of reducing her psycho-social stressors. A significant reduction in her psycho-social
stressors, a reduction in the care needs of her adopted son, and an improvement
in the relationship with her partner would probably go a long way to helping reduce
some of her headache pains.

[102]     In fact,
those two key stressors have been removed in large part. The plaintiff is still
engaged in family law proceedings in Provincial Court. Consistent with what I
noted above, she indicates these provide little stress to her.

[103]     In
relation to dizziness, Dr. Travlos candidly acknowledged that he did not have
a good explanation for it. Again, he notes that additional stresses are likely
contributory and, by inference, if those are reduced so might the significance
of the symptoms.

[104]     Similarly,
with respect to the cognitive/psychosocial symptoms, Dr. Travlos observes
that, “[i]t is difficult to say if indeed there are any residual brain injury
symptoms until the mental health issues are substantially settled, the effects
of any residual brain injury cannot be assessed…”.

[105]     Dr. Travlos
concludes by noting:

Prognosis

Ms. Birkich’s prognosis
depends materially upon her mental health and the amount of psychosocial
support that she can acquire to assist her to move forward. If all else stays
the same, her situation will remain much as is indefinitely. If adequate supports
can be put in place and she can be assisted in managing all of these other
psychosocial issues, her prognosis, in fact, should improve. It needs to be
understood that she was a fairly fragile young girl who was derailed by the
effects of this accident and that her lack of significant parenting and lack of
modeling of parenting abilities and coping with stresses has left her
vulnerable to a difficult recovery. If she is able to get back on the rails,
she may in fact do as well as she was doing previously, but this remains to be
seen and is simply and “if” and not a probability. Realistically, Ms. Birkich
will likely remain with the significant ongoing issues indefinitely.

[106]     He
subsequently concurs with the observations of Ms. Phillips that, “Ms. Birkich
is likely capable of improving her functional levels significantly. …”.

[107]     Dr. Rasmusen
says this:

81.       … However, her ongoing pain and dizziness are
contributing to her emotional state and therefore until these are improved
further, it is less likely that she will have a full resolution of her
emotional symptoms.

82.       Also of note is that her ability to tolerate the
significant stressors at home is also impaired and this is a vicious cycle
where the stressors contribute to her ongoing psychological symptoms.

83.       In order to improve it
would require an improvement in her sleep, her stress level at home,
improvement in her dizziness and headaches to significantly improve her
emotional state. I think it is more likely than not that she will always have
some impairment from these cluster of symptoms, unfortunately. As a result,
this will impair her ability to not only function while at home, but possibly
will affect her employability.

[108]     The
defence challenges what continuing pain there is and whether it can be
attributed to the incident.

[109]     It is
clear, however, that improvement is realistic with the removal of various psychosocial
stressors.

[110]     Dr. Kaushansky
reiterates the challenge of separating out that which may be attributable to
her brain injury and that which is a product of psychosocial stressors. He
ultimately concludes that to express an opinion about the future would require
real world data and, in the context of employment prospects, an ability to
monitor her in an employment setting. I interpret this to be generally
consistent with Drs. Travlos and Rasmusen.

[111]     In the
context of his vocational assessment, Dr. Wallace is consistent in
observing that the plaintiff would need to continue to reduce stresses and gain
insight in order to reduce the limiting symptoms and their effects upon her.

[112]    
The plaintiff’s position with respect to damages is premised on an
assumption that she will not improve and not become employable. That is not a
proposition I am prepared to reach based on the evidence. None of the medical
experts express such an opinion. The clearest articulation of prognosis comes
from Ms. Phillips. In her report she notes “[i]t is quite difficult to
estimate the expected functional improvements that Ms. Birkich will obtain
through participation in the recommended programs as she has had such little
therapy to date”. In light of that, Ms. Phillips’ observations related to
cost of future care requirements based on alternate scenarios. In the scenario
of a significant improvement and function that would include an elimination of
or a significant reduction of headaches and dizziness, there would be an
ability to manage child care and homemaking independently and to return to work
at Starbucks or similar employment. However, her ultimate conclusion and opinion
regarding prognosis is stated as follows:

From my assessment of Mr. Birkich
[sic] and in my experience providing case management and occupational therapy
services to similar individuals, Ms. Birkich is likely able to improve her
function significantly both through physical, emotional and cognitive programs,
and through learning compensatory strategies. Not only would appropriate
programs assist Ms. Birkich in regaining competence and confidence in her
daily life activities, but such programs will also assist her in obtaining and
maintaining employment.

[113]     This is
not inconsistent with any other expert opinion touching on the future
prognosis. It is my conclusion that the plaintiff will improve when provided
with appropriate future care, including an individual who can oversee the
provision of services.

[114]     There is
no confirmed indication of ongoing cognitive deficit attributable to the MTBI that
would preclude recovery as noted by Drs. Travlos and Kaushansky.

[115]     I am
satisfied that any aggravation of her knee condition caused by the motor
vehicle incident is modest and has limited functional impact. Certainly, it is
a minor component of her overall complaints. Similarly, any soft tissue
injuries and any lingering soft tissue pain does not contribute significantly
to her damages here but have been taken into account.

[116]     In all of
the circumstances, I award non-pecuniary damages of $125,000.

Loss of future earning capacity

[117]     I do not
intend to repeat what I have said in dealing with non-pecuniary damages. I do
conclude that she will suffer a loss of capacity, at least for a period of time
until the benefits of the reduced psychosocial stresses and the future care are
achieved. In addition, there is a risk that she will not achieve an optimal
result from the future care that will be provided for below.

[118]     All of
this must be considered in the context of her pre-motor vehicle incident
capacity. It is always a challenge with young people who are very early in
their working lives and/or have not established a work or career trajectory.
The plaintiff’s background and circumstances do provide some meaningful
assistance and I am aided by the report of Dr. Wallace which assessed her
pre-incident capacity. He states:

68.       Because of Ms. Birkich’s
young age at the time of the accident, it is my opinion from a rehabilitation
psychology perspective that it is not possible to know exactly what her future
career path would have been. This would have depended upon a number of
different factors including education attainment, physical capabilities,
psychosocial functioning, interests, motivation, employment opportunities, etc.
Nevertheless, I believe that it is possible to provide the Court with an
understanding of the range of occupational options that Ms. Birkich could
have considered prior to the motor vehicle accident which would then allow the
Court to better understand her pre-injury employability potential.

[119]     He felt
that the plaintiff could have accessed direct entry jobs or pursued college
diploma programs of up to two years although he recognized Dr. Travlos’
concerns that her pre-incident capacity was vulnerable to being “derailed” by
psychosocial stressors:

81.       The reviewed documentation notes however that prior
to the 2011 motor vehicle accident Ms. Birkich had experienced significantly
psychosocial stressors which left her psychologically vulnerable. Dr. Travlos
(May 32, 2104) [sic] notes that prior to the accident, additional new events or
stressors could have derailed her.

82.       From a rehabilitation
psychology perspective, Dr. Travlos’ concerns could have negatively
impacted upon her ability to maintain ongoing competitive employment. Her
ability to continue meeting the basic foundational skills required of
competitive employment would of course have depended upon the specific stressors
that she experienced as well as her ability to cope with them.

[120]     As noted,
there have been significant stressors of which the motor vehicle incident is
one.

[121]     Dr. Wallace
concluded that the plaintiff was not competitively employable at the time of
his assessment in June 2014. The significant question is whether that will
change in the future.

[122]     I have
already commented on this above. I will, however, add here the comments of Dr. Wallace
which are, of course, specifically made in the context of his vocational
assessment:

94.       I would concur with the other clinicians who have
identified Ms. Birkich’s significant psychosocial stress as being an
impediment to her functioning capabilities. However, from Dr. Neilson’s
latest psychological treatment progress notes, it does appear as if Ms. Birkich
is making changes in her life to reduce such stresses. From a rehabilitation
psychology perspective, it is my opinion that she would need to continue with
reducing such stresses as well as learning additional coping strategies in
order to improve her chances of meeting competitive employment standards.

95.       It is also my opinion that Ms. Birkich is one
of a group of individuals whose constellation of ongoing physical, cognitive,
and/or psychological concerns makes it difficult to provide a firm opinion
regarding her ability to succeed in post-secondary educational programs as well
as to eventually meet competitive employment standards. …

97.       In regards to assessing Ms. Birkich’s ability
to meet competitive employment standards, I would recommend that when Ms. Birkich’s
treatment team considers it appropriate, that she be provided with the
opportunity to participate in work trials. These positions would not present
any remuneration but rather would provide a setting in which her ability to
meet the basic foundational skills could be better assessed. It is likely that Ms. Birkich
would require attendance at more than one work trial in order to fully assess
her functioning capabilities. It is my opinion that it is only through these
work trials that a more definitive opinion can be arrived at in regards to her
ability to meet competitive employment standards. Therefore, it is my opinion
that at the present time it is not possible to provide the Court with a firm
vocational prognosis regarding Ms. Birkich’s residual employability
potential.

100.     From a rehabilitation
psychology perspective, while it is my opinion that work trials will provide a
better understanding of Ms. Birkich’s current employability potential, her
ability to maintain competitive employment for her entire working life is a
concern noted in the reviewed documentation. Specifically, her increased
psychological vulnerability could negatively impact her ability to meet
competitive employment standards in the future. While I do not believe it is
possible to provide a more definitive opinion in this regard, from a
rehabilitation psychology perspective this likely does leave Ms. Birkich
with a more tenuous vocational future as a result of injuries sustained in the
2011 motor vehicle accident.

[123]     It is
apparent the plaintiff wanted to work and was capable of impressing supervisors
prior to the motor vehicle incident. Clearly, being a single parent creates
challenges in pursuing further education as do many of the plaintiff’s
challenges that are not associated to the motor vehicle incident. Generally, I
find it unlikely the plaintiff would have pursued further education or
vocational training although maturity may have led her in that direction so it
cannot be ruled out.

[124]     In
advancing her claim, the plaintiff acknowledges that she would not have worked
until her son reaches school age. Based on the evidence, there is a reasonable
expectation that her function will have improved in the time between trial and
that date.

[125]     I note as
well, as did Dr. Travlos, that the functional testing by Ms. Phillips
revealed that the plaintiff did not meet the demands of the job description of
a barista as set out in the Starbucks literature but did meet the actual
demands of the job, as had been experienced by the plaintiff. The difference
appears to relate to the reality of the need to be able to lift 40 pounds
repetitively or for constant bending.

[126]    
The proper approach to the assessment of the loss of future earning
capacity is described by the Court of Appeal in Morgan v. Galbraith, 2013
BCCA 305, as follows:

[53]      As already noted, in Perren, this Court held
that a trial judge must first address the question of whether the
plaintiff had proven a real and substantial possibility that his earning
capacity had been impaired. If the plaintiff discharges that burden of proof,
then the judge must turn to the assessment of damages. The assessment may be
based on an earnings approach (rejected by the trial judge here) or the capital
asset approach, as described in Brown (the approach adopted by the trial
judge) to determine Mr. Morgan’s lost earning capacity, given Mr. Morgan’s
career path was uncertain at the time of the accident. The trial judge stated
at para. 56:

Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.), cited above, and cited elsewhere by our Courts many
times, provides the approach to use for a person whose path is unclear. The
plaintiff’s injury is treated as the loss of an asset. Finch J., as he then
was, listed the following as considerations in Brown for awarding loss
of future income:

1. The plaintiff has been rendered
less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable
or attractive as an employee to potential employers;

3. The plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.

[127]    
The proper approach in this case is to award damages on a loss of
capital asset approach. The Court of Appeal has made other helpful comments on
its application in Jurczak v. Mauro, 2013 BCCA 507:

[36]      This process is "an assessment rather than a
calculation" and "many different contingencies must be reflected in
such an award": Barnes v. Richardson, 2010 BCCA 116 at para. 18.
"Ultimately, the court must base its decision on what is reasonable in all
of the circumstances. Projections, calculations and formulas are only useful to
the extent that they help determine what is fair and reasonable": Parypa v. Wickware,
supra, at para. 70.

[37]      With that said, if
there are mathematical aids that may be of some assistance, the court should
start its analysis by considering them. For example, in Henry v. Zenith (1993), 31 B.C.A.C. 223
at paras. 44-48, 82 B.C.L.R. (2d) 186
(C.A.), this Court held that a trial judge’s failure to consider an economist’s
projections of a plaintiff’s lost future earning capacity contributed to the
judge committing an error in principle, which "resulted in a wholly
erroneous estimate of the damages”.

[128]     The
actuarial evidence translates the evidence from Dr. Wallace and provides
some context to understand the magnitude of the present value of particular
losses over time.

[129]     As noted
above, there is clear evidence to support a finding of an ability to return to
work. Having regard to the factors often referred to and set out in Brown v
Golaiy, it is my conclusion that the plaintiff has proved a substantial
possibility that her earning capacity is impaired. The degree of that is very
difficult to identify due to her young age, her vulnerabilities that existed
independent of the motor vehicle incident, the uncertain prospects for recovery
and any resulting improvement in her employability. Given her resilience, the
removal of some of the most significant psychosocial stressors very recently,
the opinions regarding prospects for recovery and the allowances for care that I
make below, I cannot accede to the arguments advanced by the plaintiff. Considering
all of the evidence, a reasonable assessment of this component of the loss is
$175,000.

Costs of future care

[130]     As has
been foreshadowed by my comments above and despite the position advanced by the
defendant, it is my conclusion that providing more significant intervention post-trial
will minimize, but not eliminate, the possibility of long standing impairment
of the plaintiff’s earning capacity by reducing the long-term effects of the incident-related
injuries.

[131]    
There is merit to the proposition that the plaintiff needs the
assistance of others to ensure she follows through with her care. Ms. Phillips
puts it this way:

Please note that I strongly
recommend that Ms. Birkich proceed with further multi-disciplinary
assessment and, hopefully, participation in a comprehensive rehabilitation
program. From my assessment of Ms. Birkich and in my experience providing
case management and occupational therapy services to similar individuals, Ms. Birkich
is likely able to improve her function significantly both through physical,
emotional and cognitive programs, and through learning compensatory strategies.
Not only would appropriate programs assist Ms. Birkich in regaining
competence and confidence in her daily life activities, but such programs will
also assist her in obtaining and maintaining employment.

[132]     This
category of damages also has significant challenges as the actual success
cannot be predicted. The plaintiff may choose not to engage. She has expressed
some skepticism as to the utility of resources on the basis that she already
knows what she will be told. In addition, even if she participates, the degree
of success remains to be seen. The recommendations of Ms. Phillips are
staged and some may not be utilized depending on the success achieved.

[133]     Ms. Phillips
has done calculations which are helpful but in the final analysis this award
must be an assessment, taking into account all of the uncertainties that the
future holds. That assessment is informed by Ms. Phillips’ costing, the
actuarial translation of that to present values and all of the uncertainties
referred to.

[134]    
Our Court of Appeal in Gignac v. Insurance Corporation of British
Columbia, 2012 BCCA 351, described the basis for an award for the costs of
future care in this way:

[29]      The purpose of the award for costs of future care
is to restore, as best as possible with a monetary award, the injured person to
the position he would have been in had the accident not occurred.

[30]      The award is “based on
what is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff[”]: (Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008
BCCA 420 at para. 41.

[135]    
Another helpful reference can be found in Izony v. Weidlich, 2006
BCSC 1315:

[70]      At the outset, I note that the cost of future care
award is “by its nature notional and not a precise accounting exercise to
determine the strict minimum” required by the plaintiff: Strachan
(Guardian ad Litem of) v. Reynolds, 2006 BCSC 362. In Courdin v.
Meyers (2005), 37 B.C.L.R. (4th) 222, 2005 BCCA 91 at ¶ 34, our Court
of Appeal endorsed the following approach to dealing with the many imponderable
factors and contingencies in assessing damages in this category:

Damages for cost of future care are
a matter of prediction. No one knows the future. Yet the rule that damages must
be assessed once and for all at the time of trial (subject to modification on
appeal) requires courts to peer into the future and fix the damages for future
care as best they can. In doing so, courts rely on the evidence as to what care
is likely to be in the injured person’s best interest. Then they calculate the
present cost of providing that care and may make an adjustment for the
contingency that the future may differ from what the evidence at trial
indicates.

(Krangle (Guardian ad litem of) v. Brisco,
[2002] 1 S.C.R. 205, 2002 SCC 9 at ¶ 21.)

[136]     The
following is a table of the recommendations of Ms. Phillips taken from the
actuarial report after the present values were calculated. It has been modified
by the plaintiff from the original recommendations in recognition of the
changes to the plaintiff’s home circumstances, specifically Mr. Lariviere’s
son’s departure and the provision of some services through government sources
or funding.

[137]     The
defence relied on the report and opinions of another occupational therapist, Ms. Mulgrew.
Generally, she did not disagree with the types of care recommended by Ms. Phillips
but felt less intensive care was appropriate. The weight I attach to her
opinion is diminished by the fact that she did very limited testing. Her
observations were however the most current, having been made August 6, 2015.

[138]    
Dr. Travlos commented on Ms. Phillips’ recommendations and
concluded they were reasonable with the exception of the costs of a mother’s
helper. In that regard he said:

The only issue is the cost of the
mother’s helper, which is certainly needed now, but probably not for the extended
period of time noted in the report. The need for the assistance now is to help
her to improve on her current situation which I made note of in my prior report
regarding the need for assistance with her psychosocial situation. Having a
mother’s helper would clearly assist in that regard, giving her time out to
attend her therapies and her own care needs and recovery. I have no issues with
this over the short term. Over the long term, the issue simply becomes how well
she responds to treatment and how well her psychosocial situation improves
allowing her own emotional mental health to improve to allow for further
recovery and thereby increase her ability to look after her own children.

[139]    
There have also been significant developments since then in the
departures of Mr. Lariviere and his son. In addition, she has secured assistance
in getting day care for her son to relieve that pressure.

[140]    
The plaintiff indicated she is no longer taking any medications. That is
not to say that they are not recommended. It is unknown if or for how long any
prescriptions will be continued.

[141]    
Considering all of the above, it is my conclusion that the following is
appropriate for future care arising from the incident related injuries:

·      
Medication, including dispensing fees: $10,875. This is reduced
by 50% from the $21,749 in the table above.

·      
Stage 1- Comprehensive Assessment: $6,593. This is the amount
presented in the table above.

·      
Stage 2- Intensive Treatment (12 weeks): $11,870. This is the
amount from the table above reduced by $1,091 for childcare.

·      
Services: $18,243. This includes an allowance of $8,000 for a
mother’s helper to provide the best opportunity for the plaintiff to engage in
and benefit from the assistance provided from the intensive treatment. Similarly,
it includes $10,000 for access to a psychologist over time. It also includes
the $243 for driver training.

Conclusion

[142]     In summary
the plaintiff’s award of damages is as follows:

[143]    
I have not heard from the parties as to costs. The parties are at
liberty to schedule an appearance before me to address costs if this result
does not resolve the issue.

“Betton
J.”