IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Carmichael v. Kwon, |
| 2016 BCSC 265 |
Date: 20160219
Docket: M149405
Registry:
New Westminster
Between:
Krystal-Ann
Carmichael
Plaintiff
And
Hye Kyung Kwon
Defendant
– and –
Docket: M164630
Registry:
New Westminster
Between:
Krystal-Ann
Carmichael
Plaintiff
And
Nicholas Knihnicki
Defendant
Before:
The Honourable Madam Justice W.J. Harris
Reasons for Judgment
Counsel for the Plaintiff: | S.J. Henshaw W.K. Briscoe |
Counsel for the Defendants: | G.J. Chambers |
Place and Date of Trial: | New Westminster, B.C. April 27-30 and May |
Place and Date of Judgment: | New Westminster, B.C. February 19, 2016 |
Table of Contents
The Plaintiff before the Accidents
The First Motor Vehicle Accident
The Second Motor Vehicle Accident
Homemaking and Child Care Support
Mobility Aids, Therapy and Medication
Introduction
[1]
The plaintiff, Krystal-Ann Carmichael, seeks damages for injuries she
sustained in two motor vehicle accidents, the first accident occurred on
January 26, 2012 (the MVA) and the second occurred on May 23, 2014 (the
second MVA). The first MVA was the more serious of the two. The defendants
admit liability for the collisions. The defendants also admit that the accidents
caused the plaintiffs injuries.
[2]
The focus of the dispute is on how the collisions have affected the
plaintiff, in terms of her enjoyment of life, her career prospects, and her
ability to care for herself and her children in the future.
Background
[3]
The plaintiff was born May 15, 1988. She is currently 27 years of age
and was 23 years of age at the time of the MVA.
[4]
She resides in Surrey with her fiancé, Josh Keller, and her 6 year old
son, Jacob, from a previous relationship. They reside in a downstairs suite in
a home owned by Joshs parents, Cindy and Dave Keller.
[5]
The plaintiff has a grade 12 education. She was born and raised in
Surrey. She is estranged from her family and has had no contact with her
father for 10 years.
[6]
Apart from the periods following the birth of her son and the MVA, the
plaintiff has been continually employed. She entered the work force early in
life and has worked in various capacities.
[7]
She lived at her familys home after Jacobs birth on April 22, 2009.
She moved away from home when her son was 5 months old to live with Jacobs
father, Chris Kasper. They separated after 6 months, although they continued to
share accommodation for a period after separation.
[8]
In July of 2011, the plaintiff went to live at the Kellers home. Josh
Keller had been a friend in high school. They developed a relationship
commencing in April of 2011. They began to live together in April of 2014. They
are now engaged to be married.
[9]
The plaintiff shares the parenting of Jacob with Mr. Kasper. Jacob
spends approximately 3 nights a week with his father. The remainder of the
time Jacob lives with the plaintiff and Mr. Keller.
The Plaintiff before the Accidents
Lifestyle
[10]
The plaintiff, Mr. Keller, and Mr. Kellers mother, Cindy Keller, gave
evidence in relation to the plaintiffs lifestyle before the accident.
[11]
Before the accident, the plaintiff was described as a happy, bubbly individual
who was always on the go and fun to be with. She was a young mother who enjoyed
motherhood and playing with Jacob. She spent time going out for walks in the
park or at the beach with Mr. Keller and Jacob. The photographs of the
plaintiff prior to the MVA show her to be a cheerful, active and healthy
looking individual.
[12]
Although she experienced some difficulties in her childhood, she maintained
a positive approach to her life and did not dwell on what was negative. During
her childhood and teen years, she helped her mother with the household chores
and with the children her mother was fostering. While she was school aged, she
was involved in competitive dance and played golf and baseball. As a young
adult, she enjoyed snowboarding and hiking.
Work
[13]
The plaintiffs work history is important to an understanding of her
claim for damages. The timeline and duties performed at her various places of
employment were not disputed.
[14]
As noted above, she started to work early in life and held a variety of jobs.
Most of the jobs were low paying, as is common for young people entering the
work force.
[15]
While in high school, she obtained a part-time job after school and on
weekends at McDonalds Restaurant. She worked as a server, cook, and cashier as
well as training other staff. She was a valued worker and was asked to train
other workers, despite her young age.
[16]
She took an additional year of school at Lord Tweedsmuir Secondary
School after she graduated from Holy Cross School, to improve her grades.
[17]
In the following year, she worked at Rickys Restaurant, as a server.
She was again selected to assist in training other staff.
[18]
The plaintiff subsequently enrolled in a culinary pastry arts program at
Vancouver Community College, which she arranged through a student loan, with a
view to upgrading her employment skills. While she was taking the pastry
course, she worked at Toys-R-Us.
[19]
She did not continue with the College as she became pregnant with Jacob.
She took approximately 10 months off from work after Jacob was born.
[20]
She returned to work in February of 2010. First, at White Rock Pantry
Restaurant as a dishwasher, and then at Canadian Superstore as a retail clerk.
She worked at Canadian Superstore for approximately one year and three months.
She subsequently took another job as a retail clerk in June of 2011 at American
Eagle, but quit after one month. It was at this time she ended the living
arrangement with Jacobs father, and moved into a suite at the home of her new
boyfriends parents, the Kellers.
[21]
While she was living at the Kellers suite, she sought the advice of Ms.
Keller regarding career prospects. Ms. Keller was a long term employee of the Fraser
Health Authority and held responsible administrative positions at a hospital.
She encouraged the plaintiff to consider positions in health care, such as a
nurse aide, unit clerk, renal technician, or a licenced practical nurse.
[22]
Acting on this advice, the plaintiff applied for a job at Bethshan
Gardens, which was a retirement home. Her duties were to serve meals to the
residents, help them get to the dining area, and assist with housekeeping.
While she testified that she loved working with the residents, she was dismissed
within her probationary period on the basis that her manager considered she had
not demonstrated sufficient interest in the job.
[23]
The plaintiff was upset by this turn of events. She had never been dismissed
from a job. However, she was undaunted in her pursuit of a career in health
care. She pursued a position at another retirement home, the Renaissance, and
ultimately obtained a position.
[24]
She started as a casual employee on October 31, 2011. She worked a
minimum of 20 hours a week, but usually worked at least 30 hours a week. Her
duties were similar to those at Bethshan Gardens and involved serving
residents, helping in the kitchen, assisting residents who had difficulties
walking, and providing laundry services for the dining room. She described the
work as fast paced and said that it involved some heavy lifting. However, she
loved the job and particularly liked working with the residents and staff.
[25]
She testified that she received positive feedback about her work and
passed her probationary period. Upon completion of her probationary period, she
was to receive an increase in pay and benefits. It was a unionized work force,
which she believed provided greater security of employment and opportunities
for career advancement. She indicated that the work at the Renaissance
solidified her interest in a career in health care.
[26]
Her employment at Renaissance came to an end as a result of the MVA. Due
to the physical demands of the work at Renaissance, she was informed she could
not be accommodated in that employment setting.
The First Motor Vehicle Accident
[27]
The MVA occurred on the afternoon of January 26, 2012. The
plaintiff was travelling west on 64th Avenue in Langley in a 2003
Pontiac van. She was on the way to pick up her son from daycare. She estimated
that her speed was 50 kilometers per hour. The defendant, Ms. Kwon, was
travelling north on 196th Street in a 2008 Honda SUV. The plaintiff
was travelling on 64th and across 196th. It was her right
of way.
[28]
The defendant failed to yield at a stop sign at the corner of 64th
Avenue and 196th Street and the two vehicles collided in the
intersection. The plaintiff testified that she slammed on the brakes when she
saw the defendants vehicle. The left front of the plaintiffs vehicle struck
the passenger side of the defendants vehicle. It was a T-bone type of
accident. The plaintiffs air bag deployed. The plaintiff was wearing a
seatbelt.
[29]
An ambulance attended at the scene. The plaintiff was immobilized and
taken to the emergency room of Langley Memorial Hospital. She was assessed and
released a few hours later. She went home with the assistance of Mr. Keller.
There was substantial damage to both vehicles. Both vehicles were subsequently written
off.
[30]
The plaintiff was injured in the accident. She was off work for
approximately 14 months following the MVA. She was able to secure new
employment which started on April 18, 2013.
[31]
After the MVA, the plaintiff sought medical advice and participated in
various treatments including 6 chiropractor treatments; 29 physiotherapy
sessions; and 20 sessions with a kinesiologist. She returned for 16 further
sessions with the physiotherapist. She took various medications for her pain
symptoms and her depressed mood.
Injuries following the MVA
[32]
Within 24 to 48 hours after the MVA, the plaintiff testified she felt
ringing in her ears, headaches, neck pain, shoulder pain, and lower back pain.
Her hips and right ankle were sore. She said that she experienced knee pain immediately
after the collision and told the paramedics that her knees had hit the
dashboard really hard at the time of the collision. She had bruising in the
area of her lap and shoulder seat belt. She reported that her wrists were also
sore from holding onto the steering wheel.
[33]
The plaintiff testified she had limited mobility following the MVA, and
was assisted by her fiancés younger sister, as well as her fiancé and his
mother, in performing daily household activities and looking after Jacob. The
plaintiff testified as to nature of her pain symptoms from the MVA, which are summarized
below.
Ringing in ears
[34]
She said that she experienced a ringing in her ears sensation after the MVA
and initially this sensation lasted for a couple of minutes and occurred at
least a couple of times a week. She said that it improved over time and does
not occur regularly any longer. At the time of trial, she said she had ringing
in her ears at least once a week which lasted a couple of seconds to a
minute.
Headaches
[35]
She said she began to have frequent headaches after the MVA. She
testified that she had headaches four to five times each week, although they
ranged in severity. She said the more severe headaches have continued to date
and she gets bad headaches at least once a week. They last for a couple of
minutes to a few hours. She said that she also had low dull headaches two to
three times a week which would last a half hour to about an hour. She testified
that she takes Tylenol for bad headaches and sometimes lies down. She said that
she works through the dull headaches. The plaintiff said that she had headaches
once in a blue moon prior the MVA.
Neck
[36]
With regard to her neck, the plaintiff testified her neck was very sore
after the MVA. Her neck felt tight and she found it hard to move her head, for
example, to do a shoulder check when driving. She said the pain is centered at
the back on her neck where it joins the spine. She said the pain is at its
worst when she reads or has to look down. She said that the pain in her neck is
constantly there, although the severity of the pain varies from very low to
very high. She says the pain is worse by the end of the work week. She said
that after the first year after the MVA, the pain has calmed down, although
it is always present.
Shoulders
[37]
She said that her shoulder was initially sore from the impact and from
wearing her seatbelt, but it gradually got better within a year of the MVA and is
no longer symptomatic.
Lower Back
[38]
The plaintiff testified that the pain in her lower back started right
after the accident. She said it was very sore to the touch and was painful when
lying or standing and that this lasted for about a year. It plateaued after
that but spiked back up after the second motor vehicle accident in May of
2014. She said that her lower back is now in the same state it was when the
pain plateaued after the MVA.
[39]
She said that her lower back is constantly sore: it is a pulsating,
sharp, stinging pain in her right lower back, which is worse when sitting
for a long amount of time.
Knees
[40]
The plaintiff testified that her knees still get sore from time to time
when she sits for prolonged periods. She said she leans forward to relieve the pain
in her back, which puts pressure on her knees. She said this pain is alleviated
when she gets up and walks around.
Hip
[41]
When asked to describe the progression of symptoms in her hip, the
plaintiff said that her hip is always painful and it was hard to do anything
because of her hip pain. She said it sometimes gives way without warning and
she has fallen a few times because of it.
Wrist
[42]
The plaintiff reported that the pain in her wrists lasted for about a
week and is now resolved.
Ankle
[43]
The initial pain in her ankle resolved after the MVA and is no longer
symptomatic.
Mood
[44]
The plaintiff described feeling anxious and depressed after the MVA and
having nightmares which included accidents involving her son. She said she experienced
difficulty sleeping due to pain. She testified that her relationship with her
son has been affected as she cant engage in activities with him in the way she
used to and sometimes gets irritable with him. The plaintiff also testified she
has gained a significant amount of weight since the MVA, which concerns her.
[45]
Mr. Keller, the plaintiffs fiancé, described the differences he
observed in her following the MVA. He describes her being a totally different
person who is emotionally fragile, irritable and depressed. He testified she
no longer picks up Jacob. She no longer takes pleasure looking after their home;
and she has become more distant. They are not as physically close as they had
been prior to the accident. Prior to the MVA she was energetic and outgoing and
fun to be around. Since the MVA, she sometimes pushes the limits of his
patience, even though he knows that her reactions are due to her pain.
[46]
Ms. Keller, the plaintiffs future mother-in-law, also described the
plaintiff as having been a happy, energetic and active person before the
accident, who enjoyed going to the beach or for walks with Jacob and her son.
She testified that the plaintiff was a very attentive mother who liked to play
with Jacob. After the MVA, Ms. Keller said that she noticed a lot of mood
changes, weight gain and sadness. She said that she observed the plaintiff
being exhausted when she returned home from work or when she did not have a
good night. She has not been able to keep up with her housework; she has not
been as active with Jacob; she has been more emotional; and she has appeared to
be in pain. Ms. Keller noted that on the familys most recent trip to Disneyland,
the plaintiff had to use a wheelchair for five or six days, and was not able to
participate for the full day in the planned activities. Ms. Keller also noted
that since the MVA, the plaintiff has insisted on being the driver when they
drive together.
[47]
Neither Mr. Keller nor Ms. Keller was cross examined by the defendant.
The Second Motor Vehicle Accident
[48]
The second MVA occurred on May 22, 2014 when the plaintiff was
travelling from an appointment with Dr. Jaworski back to her workplace.
She was looking left to merge onto the Fraser Highway, when she was rear ended
by the vehicle driven by the defendant, Mr. Knihnicki. She described it as a
big jolt, which scared her. She said that she felt everything tighten up after
the jolt.
[49]
She immediately called her employer, Lori Marko. Ms. Marko
testified that the plaintiff was freaking out and barely coherent. Ms.
Marko advised the plaintiff to get someone else to drive her home, which she
did.
[50]
The plaintiff testified she was sore after the accident and that she
went to a walk in clinic. She used ice packs and analgesics for the pain. She
testified that the second MVA caused a flare up of her injuries from the MVA.
However, she did return to work on the following workday.
[51]
There was minimal damage to the vehicles.
Medical Evidence
[52]
The most significant injuries to the plaintiff that were identified by
her physicians were related to her hip and chronic pain. The defendants did not
call evidence.
Dr. Duncan
[53]
Dr. Duncan is an orthopedic surgeon who specializes in diseases and
treatment of the hip. He conducted an independent medical evaluation of the
plaintiff on January 6, 2015, at the request of counsel for the plaintiff. His
medical legal report is dated January 31, 2015.
[54]
In Dr. Duncans opinion, the plaintiff has chronic synovitis
(inflammation of the lining of the hip joint), early degeneration (loss of the
cartilage covering the joint surfaces) and a torn labrum, which will require
her to have a complete hip replacement within 5 to 10 years and revision
replacements in her middle years and in her later years, based upon a 20 to 25
year period before surgical reintervention. He stated that her underlying pain
disorder was likely to slow her recovery time and require a more intensive
program of analgesics. However, he expected the surgery to be successful in
relieving pain and providing satisfactory function.
[55]
The extent of the injury to her hip was not identified until early in
2015, after she underwent a second, higher resolution MRI arthrogram of the
right hip on December 12, 2014. It revealed a torn labrum and confirmed the
early degeneration affecting her right hip. In that regard, Dr. Duncan noted
the comment of the reporting radiologist, Dr. Connell: In retrospect,
this was likely present on the prior study, however it is more prominent on
todays study.
[56]
Dr. Duncan stated that it is very unusual for an individual of the
plaintiffs age to require hip replacement surgery. In his opinion, she is not
a candidate for less invasive procedures, such as a therapeutic arthroscopy to
repair the labrum, due to the severity of the degeneration and the restriction
of motion in the hip.
[57]
He described her disability as substantial and increasing such that
she will require increasing analgesic pain medication. He stated that the use
of local anaesthetic and cortisone injections may reduce symptoms and defer
surgical intervention, but hip joint replacement will be required. However, he
noted that cortisone injections are generally not used more than 3 times and
their effectiveness diminishes over time. Therefore, they are to be used
strategically.
[58]
He recommended physiotherapy, weight loss, anti-inflammatory medication,
as well as analgesics, and said they may help modify her symptoms and defer the
surgical interventions. He noted that prior to the first hip replacement she
will become more and more immobile and dependent on walking aids.
[59]
In cross examination, Dr. Duncan clarified the timing of the hip
replacements and their impact on the plaintiff. He said that he expects that
she will need surgery within 5 to 10 years and that the timing of the surgery
is dependent on the overall disability of the patient, in terms of pain and the
degree of degeneration based on radiographic findings.
[60]
With respect to the plaintiffs prognosis, Dr. Duncan testified that
following a three month period of recovery after surgery, patients having
undergone hip replacements are, in his experience, able to live relatively
normal lives and to participate in a variety of activities, with the exception
of jogging, tennis and contact sports.
[61]
With respect to the cause of the injury, Dr. Duncan noted that the
plaintiff was asymptomatic prior to the MVA and she was enjoying outdoor
athletic activities; that she had no prior injury to the hip or joint disorder
or abnormality; that she recalled that one or both knees forcefully hit the
dashboard at the time of the collision; that the plaintiff reported that she
had widespread musculoskeletal complaints, including right hip pain and
difficulty walking immediately after the MVA; and that these symptoms did not
settle despite physiotherapy, kinesiology, and medication.
[62]
Based upon these factors as well as his review of the medical findings,
Dr. Duncan testified that, in his opinion, the plaintiffs hip injury was
caused by force of her knees hitting the dashboard in the MVA, which force transmitted
to the femur and caused the tear of the labrum, if not scoring or abrading the
cartilage on the femoral head at the same time. In his opinion, the second MVA
simply aggravated the plaintiffs symptoms.
Dr. McGraw
[63]
Dr. McGraw is an orthopedic surgeon who provided medical legal reports
dated July 22, 2014 and September 22, 2014, at the request of counsel for the
plaintiff. He prepared a second report as his first examination was conducted
prior to the second MVA. The defendant did not cross examine him on his reports.
[64]
Dr. McGraw did not have the benefit of reviewing the most recent high
resolution MRI which was conducted in December of 2014.
[65]
In Dr. McGraws opinion, the plaintiff sustained soft tissue injury to
her cervical spine and thoracolumbar spine and injury to her right hip in the
MVA. In respect of the hip, Dr. McGraw refers to a possible tear to the acetabular
labrum as well as bursitis and/or tendinitis and recommended further diagnostic
tests to affirm the cause of the hip pain.
[66]
He stated that these injuries were aggravated by the second MVA,
although he noted the plaintiff reported that the escalation of pain in her
neck and back were resolved to the point she was experiencing at the earlier
assessment on May 15, 2014.
[67]
In terms of the plaintiffs prognosis, he opined that the long range
prognosis for her neck was good, and that her low back would improve, with
weight reduction and an exercise program. However, he referred to the ongoing
degeneration and said that the rate of progression cannot be predicted. At that
point, he considered there was no treatment to reverse a progression to
osteoarthritis but recommended further testing as noted above.
Dr. Jaworski
[68]
Dr. Jaworski is a physiatrist who provided treatment to the plaintiff
over the period from November of 2012 to February of 2015. He saw the plaintiff
approximately 15 times during that period. He provided a medical legal report
dated December 29, 2014. A follow up report from Dr. Jaworski dated February
27, 2015 was also in evidence. The latter report was prepared after he reviewed
the results of the December 12, 2014 MRI arthrogram which revealed the
early degenerative changes and torn labrum.
[69]
In his opinion, the plaintiff suffers from chronic pain disorder, with
fibromyalgic features. He noted she was functioning quite well before the MVA,
in the sense that she was able to look after her son and maintain employment.
However, as a result of the soft tissue injuries she sustained in the MVA, she
developed protracted musculoskeletal aches and pains as well as emotional
difficulties. He reported on the plaintiffs significant weight gain following
the MVA.
[70]
Dr. Jaworski described the treatment that had been provided, including
anti-depressants, plain analgesics, anti-inflammatories, muscle relaxants, as
well as an exercise program and passive physical modalities. He reported that these
measures gave her only partial symptomatic improvement.
[71]
In the review of his clinical records of her visits, Dr. Jaworski noted
some improvements in the plaintiffs mood and pain level in 2013, although her
reports of pain, poor sleep, and emotional difficulties continued into 2014 and
she reported increased aches and pains after the second MVA. In October of 2014,
he noted her reporting a popping sound and increased pain in her right hip.
In February of 2015, he described her reporting slight generalized aches and
pains with right-sided hip pain being dominant and being related to
weight-bearing activities; her mobility in her right hip as being mildly
restricted by pain; and her pain disorder with fibromyalgic features as being
under improved control with Effexor.
[72]
In his opinion, the plaintiffs long-term prognosis is guarded and noted
that her condition can affect her competitive employability potential. He
stated that: The intensity of the symptoms in the future is likely to fluctuate,
in part depending on her environmental stressors and any concomitant physical
or psychological morbidities. Her work should preferably not be physically
demanding or very stressful.
[73]
He recommended that management of her fibromyalgic pain focus on
psychotherapy (e.g. cognitive behavioural therapy for six months), anti-depressant
medications (e.g. Effexor), as well as plain analgesics and muscle relaxants.
He noted the need to attend to her excessive weight and recommended she be as
physically active as can be tolerated.
[74]
On cross-examination, Dr. Jaworski clarified that, in his opinion, there
was a dual pathology in the plaintiffs hip: a labral tear and early
osteoarthritis, with the labral tear being amenable to surgical correction. He
clarified that degenerative changes are not usually amenable to surgical
intervention, although they could be controlled partially by cortisone
injections. When asked if such treatments would eliminate her chronic pain, Dr.
Jaworski said that this was unlikely as she presented with multiple pain in
multiple anatomical locations.
[75]
Dr. Jaworski also clarified on cross examination that a loss of weight and
conditioning would likely have a positive effect on her back and neck pain and
possibly on her pain disorder and fibromyalgia. However, improvement would be
affected by the presence of psychosocial stressors.
Occupational Therapist
[76]
Lindsey Townsend is an occupational therapist who was retained to
conduct an assessment of the plaintiffs functional abilities and limitations. Her
report is dated February 2, 2015, with an addendum dated March 5, 2015. Her
report was based on the medical reports of Dr. Duncan, Dr. Jaworski, Dr. McGraw
and Dr. Arthur, the past treatments undertaken by the plaintiff, her post
accident activities, and the test results from the functional capacity
evaluation.
[77]
Ms. Townsend found the plaintiffs self-reports of function were
generally consistent with clinical measures of functional abilities and
limitations. She identified a number of limitations. Her overhead reaching and
repetitive end range reaching is limited to brief periods (1-2 minutes). Her
neck flexion (looking down) is limited to short periods (3-5 minutes) of
sustained moderate to extreme neck flexion. She can keyboard for moderate
periods of time after which she would need a short break. She is limited from
activities requiring more than basic balance. She can stoop, kneel and bend for
brief periods but not on a sustained basis. She has limited strength for
carrying, lifting, pushing and pulling. She can sit for approximately 1-2 hours
at a time and has a reasonable standing tolerance of 15-20 minutes statically
and 45-60 minutes dynamically.
[78]
Based upon these functional limitations, Ms. Townsends opinion was that
the plaintiff will need work that is sedentary, predominately sitting, allows
for postural change, does not require an extensive amount of sustained periods
of looking down, and only incidental low level positions. Strength demands must
be below 10 pounds.
[79]
It is not disputed that, with these limitations, the plaintiff is unable
to meet the physical demands of her former job as a server at the retirement
residence. Ms. Townsend said that the plaintiff could also not tolerate
the retail jobs she had done in the past.
[80]
Ms. Townsend made a number of recommendations based upon the physicians
reports and her assessment of the plaintiff, including a swimming routine; an
exercise and weight loss program; child care and homemaking support;
physiotherapy; psychological counselling, and vocational counselling. Ms.
Townsend gave evidence as to the cost of these items, as well as the cost of
medication, pain management, various mobility aides, transportation assistance,
and occupational therapy.
Position of the Parties
[81]
Counsel for the plaintiff submits the plaintiff has demonstrated she is
a credible, hardworking and industrious young woman, who has succeeded despite
difficult family circumstances. The accident occurred just after as the
plaintiff and her young son had established a warm and loving relationship with
Josh Keller and his family and had found a career she wanted to pursue.
[82]
Prior to the MVA she was a happy and healthy person, who was positive in
her outlook. After the MVA, the plaintiff had very limited mobility and could
not care for her son as she had in the past. She experienced pain, anxiety,
nightmares, and had difficulty sleeping. She was off work for approximately 14
months.
[83]
Although she returned to work after the MVA, she couldnt go back to her
prior occupation and was still experiencing pain, difficulty sleeping and was
depressed. There was some improvement in her condition over time, but it
worsened with the second MVA. She was diagnosed with chronic pain disorder with
fibromyalgic features by Dr. Jaworski.
[84]
The source of her hip pain was clarified in early 2015, when a high
resolution arthrogram revealed the torn labrum and the degeneration in her hip.
Plaintiffs counsel emphasized the devastating consequences to the plaintiff of
this condition, which will mean that the plaintiff will have to undergo three
hip replacement surgeries.
[85]
In these circumstances, and given the severity and duration of the pain,
the emotional suffering, and the impaired enjoyment of life, the plaintiff
seeks non-pecuniary damages in the amount of $225,000, based upon the factors
set out in Stapley v. Hejslet, 2006 BCCA 34. She also seeks damages for
past and future loss of income and earning capacity based upon the plaintiffs restricted
career opportunities, at $30,750 and $503,408, respectively. She also claims
future care costs associated with the period of lack of mobility preceding the
hip replacement surgeries of $81,049, plus homemaking and child care costs of
$249,513.
[86]
Counsel for the defendants submits that the principal issue in this case
is the extent of the plaintiffs pain and its effect on her work and home life.
The defendants do not dispute that the MVA caused injury to the plaintiff, but
counsel emphasizes that the symptoms she had experienced since the MVA had been
improving or at least were under control by the end of 2014, and that it is the
right hip which is the real root of her ongoing issues. The gradual
deterioration of her hip is what is responsible for the most problematic of her
current issues in terms of walking, sitting and sleeping comfortably.
[87]
Counsel acknowledged that the hip replacement surgeries that will be
required will make all aspects of her life more difficult as she continues to
manage a household, a young son and a full time job. In these circumstances,
and with the guidance of case law, the defendants submit that $120,000 would be
an appropriate amount for non-pecuniary damages.
[88]
With respect to lost future earning capacity, the defendants emphasize
that the plaintiff is capable of sustaining full time work, such as her current
clerical job. While the defendants do not dispute that the plaintiff will not
be able to return to her former position as a server at the retirement residence,
the precise path of her working life had not yet been established. In such
circumstances, the defendants submit that loss of future earnings should be
established on a capital asset approach.
[89]
The defendants propose two scenarios to determine future loss of
earnings. Under the first, it is assumed that over the next six years, she will
only work part-time, due to her deteriorating hip and the need to focus on her
health (e.g. conditioning, losing weight, therapy). This scenario also assumes
that she will need periods off from work after her hip replacements. Under this
scenario, by the time she has had her first hip replacement and has undergone a
program of conditioning and weight loss, she will have career opportunities
open to her, particularly if she considers retraining. Based upon counsels
calculations of wage differentials, periods she would be unable to work, and
loss of earning capacity after the first hip surgery, the amount of damages for
loss of future earning potential would be $193,752.
[90]
The second scenario proposed by counsel for the defendants is based upon
her pre-MVA job as a server as netting $25,000. If she takes the next 5 years
off completely due to pain and mobility issues, her loss would be $125,000 plus
$25,000 for lost earnings from future hip placements and $50,000 for loss of
earning due to risk of ongoing neck and back issues affecting employment, for
an amount totalling $200,000.
[91]
The defendants say that no award for loss of housekeeping capacity is
justified as the plaintiff has been managing without any housekeeping help.
Even if they had more children they would be in no different position than
other young families whose parents are working full time. However, with respect
to homemaking during the period leading up to and following hip replacements,
the defendants acknowledge that the plaintiff will require some assistance with
household work and submit that $98,033 is an appropriate amount.
[92]
With respect to other future care costs, the defendants do not significantly
disagree with the recommendations of the plaintiffs physicians and
occupational therapist, however, the defendants cost them at $29,033, which is lower
than had been recommended by Ms. Townsend.
Credibility
[93]
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012
BCCA 296, as follows:
[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 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).
[94]
In this case, I found the plaintiff to be a credible witness. I agree
with the plaintiffs counsel submission that she testified in a straightforward
manner.
[95]
That said, since a part of the plaintiffs claim is based on subjective
accounts of pain, I examined her evidence carefully. I note that her evidence
at trial as to the level of pain and discomfort she was feeling in the years
following the MVA to be difficult to reconcile with what she was apparently reporting
to Dr. Jaworski. It was also difficult to reconcile her accounts of the
progress of her pain symptoms over time. For example, she testified that the
ringing in her ears improved over time and does not regularly occur any longer,
but then said that currently she has ringing in her ears at least once a week,
which lasts a couple of seconds to a minute. Similarly, it was difficult to
understand the distinction she made between low dull headaches and bad
headaches.
[96]
However, when such evidence in considered in the context of her evidence
as a whole, I attribute this lack of clarity, not to an intention to exaggerate
her pain symptoms, but rather to her inability to precisely recall and
articulate the experience of pain as it changed over time since the MVA. I
consider that this is understandable given the number of locations of her pain
and differences in its intensity. In that regard, I am mindful of the evidence
of Dr. Jaworski that a feature of her chronic pain is a variation in the
intensity of her symptoms depending on psychosocial and environment factors. Further,
I note that her account of the impact of the injuries on her life was supported
by the evidence of people who live and work with her, such as Mr. Keller, Ms.
Keller and Ms. Marko.
[97]
Accordingly, while I have considered these discrepancies, I am satisfied
that they do not significantly diminish her credibility or the reliability of
her evidence.
Causation
[98]
It is well established that the plaintiff must prove on the balance of
probabilities that the defendants negligence caused or materially contributed
to an injury. The defendants negligence need not be the only cause of the
injury so long as it is part of the cause beyond the range of de minimus.
Causation need not be determined with scientific precision, Athey v.
Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin,
2011 BCCA 336 at para. 9.
[99]
The primary test to be applied in determining causation is commonly
articulated as the but for test. The plaintiff bears the burden of showing
that but for the negligence act of omission of the defendants, the
plaintiffs injury would not have occurred.
[100]
As the plaintiff’s claim includes a psychological component related to
her depressed mood and feelings of anxiety, I observe that the principles to be
applied in assessing claims of psychological injury were extensively reviewed
by the Court of Appeal in Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318
at paras. 12-13 (C.A.). Mr. Justice Lambert cited with approval the overall
test which had been referred to by Mr. Justice Spencer, the trial judge in Maslen
v. Rubenstein (September 18, 1989), Victoria 88/131 (B.C.S.C.), as follows:
[C]hronic benign pain syndrome
will attract damages … where the plaintiff’s condition is caused by the
defendant and is not something within her control to prevent. If it is true of
a chronic benign pain syndrome, then it will be true also of other psychologically-caused
suffering where the psychological mechanism, whatever it is, is beyond the
plaintiff’s power to control and was set in motion by the defendant’s fault.
[101] In this
case, the defendants called no evidence. There is no dispute between the
parties that the plaintiffs soft tissue injuries and injury to her hip were
caused by the initial T-bone type of collision in the MVA.
[102] On the
basis of the medical evidence, as well as the testimony of the lay witnesses, I
find that the MVA caused the plaintiffs injuries to her hip, neck, wrist,
knees, lower back, shoulder, and ankle and that, as a consequence, the
plaintiff has suffered pain, headaches, sleep disturbance, anxiety and
depression.
[103] It is also
not disputed that the second MVA exacerbated her injuries for a period of time
following that relatively minor rear end collision. Dr. McGraw stated that by
September of 2014, the plaintiffs pain symptoms from the second MVA had
returned to their prior state, which leads me to infer that, at most, the
second MVA caused an increase in pain symptoms for a three month period.
[104] With
regard to the injuries caused by the MVA, while the court is not required to
accept a particular diagnosis, I accept the diagnosis of Dr. Duncan that the
plaintiff has chronic synovitis (inflammation of the lining of the hip joint),
early degeneration (loss of the cartilage covering the joint surfaces, and a
torn labrum. I find that Dr. Duncans opinion is consistent with the
plaintiff having hit her knees on the dashboard due to the force of the
collision.
[105] I also
accept the diagnosis of Dr. Jaworski that the plaintiff has chronic pain, with
fibromyalgic features. I find that the plaintiffs pain in her neck and lower
back, as well as her headaches, sleep and mood disturbances have continued –
despite the extensive interventions which were recommended and undertaken by
the plaintiff.
[106] I find that
her ankle, wrist, and shoulder pain resolved in the period immediately
following the MVA and the knee pain is now only occasional. I find that the
ringing in her ears is also only occasional.
[107] With respect
to her other symptoms, I find that, except for the hip, there has been some
improvement. Although she still has significant pain, headaches, sleep and mood
disturbances, the level of discomfort varies in intensity and is not as severe
as it was in the year after the MVA. She is able to hold a full time job and
care for her son, albeit not at the manner she did prior to the MVA. With
respect to the hip, I accept the medical evidence that the hip will continue to
deteriorate, causing her pain and functional limitations, particularly in
standing, walking and lifting, until she has a hip replacement.
[108] While the
parties made no submissions regarding whether the injuries caused by the two
motor vehicle accidents were divisible, I find that they are not. The
plaintiffs evidence and the medical evidence support the conclusion that the
second MVA caused only an exacerbation of her pain symptoms for a relatively
short period of time. It was the first MVA which was the cause of her ongoing
hip injury and chronic pain disorder.
Non-Pecuniary Damages
[109]
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and amenities. The compensation awarded
should be fair to all parties. Fairness is measured against awards made in
comparable cases, although they serve only as a guide to appropriate
compensation. Each case must be determined on a consideration of its own unique
facts: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 145; Trites v.
Penner, 2010 BCSC 882 at para. 189.
[110]
In Stapley at para. 46, Madam Justice Kirkpatrick outlined a
non-exhaustive list of factors for consideration when assessing non-pecuniary
damages.
[111]
The factors to be considered include:
a.
age of the plaintiff;
b.
nature of the injury;
c.
severity and duration of pain;
d.
disability;
e.
emotional suffering;
f.
loss of enjoyment of life;
g.
impairment of family, marital and social relationships;
h.
impairment of physical and mental abilities;
i.
loss of lifestyle; and
j.
the plaintiff’s stoicism (as a factor that should not, generally
speaking, penalize the plaintiff): Giang v. Clayton, 2005 BCCA 54.
[112] Applying
those factors, the plaintiff submits that the MVA has had devastating
consequences on the plaintiffs life. The plaintiff emphasizes the factors from
Stapley that support a significant amount of damages under this head:
her relatively young age; her intention to have two children with her fiancé;
the increasing severity and duration of her pain that is associated with her
hip condition; her chronic pain; her emotional suffering and its impact on her
relationship with her fiancé and child; the effect of her physical limitations
on her enjoyment of recreational activities and participation in child care and
household duties; and the impact of her mental and physical health on her sense
of self-worth and career potential.
[113] The
plaintiff relies on a number of decisions of this court in support of her
position that an award of $225,000 is fair and reasonable. The plaintiff makes reference
to the following cases but submits that her circumstances are more life-altering
and, therefore, justify a larger award:
1. In Klingsat
v. Westminster Savings Credit Union, 2001 BCSC 1701, a 30 year old
plaintiff was injured in two motor vehicle accidents and was awarded $150,000
in non-pecuniary damages for a right hip injury and related pain, which would
likely require two hip replacement surgeries.
The plaintiff notes the award would
be significantly greater at its present value.
2. In Midgley
v. Nguyen, 2013 BCSC 693, a 46 year old plaintiff sustained injuries
including chronic pain and a torn labrum, which would require surgery. The Court
found that while the surgery may reduce the pain, and that cognitive therapy
may bring some relief to his psychological symptoms, but it was nevertheless
likely that his symptoms would persist. The plaintiff was awarded $110,000 for
non-pecuniary damages.
The plaintiff notes that no hip
replacement surgery was involved in that case.
3. In Fox
v. Danis, 2005 BCSC 102, the Court awarded $100,000 to a plaintiff who was
28 years old at the time of the accident, as non-pecuniary damages for chronic
pain in the lumbar spine, buttock and leg, and occasional pain in her neck and
shoulder. The conditions were found to have increased the frequency of her
migraines and placed her at risk of depression in the future.
The plaintiff notes that Ms. Fox did
not lose any work as a result of the accident.
4. In Easton
v. Wolovets, 2015 BCSC 210, the Court awarded a 33 year old carpenter
$125,000 in non-pecuniary damages for significant myofascial and chronic pain,
which affected his relationship with his spouse and infant child; his ability
to provide for his family and his enjoyment of activities. The Court stated
that injuries had a significant and serious psychological dimension, which was
likely to continue.
The plaintiff notes that, in
contrast to the Easton case, the plaintiffs situation will get worse
before it gets better.
[114] The
plaintiff submits that the level of disruption to the course of the plaintiffs
life justifies an award similar to the case of Felix v. Hearne, 2011
BCSC 1236, where the Court awarded $200,000 for non-pecuniary damages for the
combined effects of residual injuries, specifically to neck and back pain and
headaches, loss of wrist function and pervasive emotional disorder, which were found
to have had a devastating effect on her life.
[115] The
defendants do not dispute that the MVA has had a serious effect, but submit
that the following decisions of the court suggest that an award to the
plaintiff of $120,000 would be more appropriate.
1. In Tarasevich
v. Samsam, 2013 BCSC 1914, a 21 year old plaintiff was awarded $150,000 in
non-pecuniary damages. After the motor vehicle accident the plaintiff suffered
a number of injuries; underwent surgery on her right hip; was largely confined
to hospital for two months; used a wheelchair for mobility; had chronic pain;
and would require a hip replacement in her right and left hips later in life.
2. The case
of Combs v. Moorman, 2012 BCSC 1001, involved a 38 year old massage
therapist who had injuries to her back and neck and would require arthroscopic
surgery for her hip. Her ability to care for her children and household and
recreational activities were affected due to pain. She was awarded $90,000 in
non-pecuniary damages.
3. In White
v. Gehricke, 2013 BCSC 377, a 33 year old travel agent was involved in two accidents
and sustained disabling injuries to her lower back and hip. She had difficulty
walking for any distance and was unable to engage in her pre-accident lifestyle.
She sustained a labral tear to her hip and there was a significant chance of
future osteoarthritis and the need for a total hip replacement later in her
life. She was awarded $85,000 in non-pecuniary damages.
4. The case
of Wong v. Hemmings, 2012 BCSC 907, involved a 36 year old single mother
who sustained serious injuries to her left shoulder and knee in two motor
vehicle accidents. She underwent two surgeries on shoulder and there was a potential
for additional surgical interventions on her shoulder and knee. She had constant
pain and sleep-deprivation, which made her more socially withdrawn, less
energetic and less able to enjoy her life as she had before the accident. She
was awarded $100,000.
[116] With
respect to the cases referred to by counsel, I note that the Tarasevich case
is similar to the extent that it involves a young plaintiff who will require
serial hip replacement surgeries. While the plaintiff was only seeking $150,000
in non-pecuniary damages in that case, I note that in Klingsat, which
also involved the need for hip replacement surgery, the Court also awarded
$150,000 in non-pecuniary damages.
[117] Further, I
note that in the Felix case, the Courts award of $200,000 in
non-pecuniary damages, involved a plaintiff who was not able to return to work
and there was found to be only a modest hope of further improvement in her
physical or emotional condition. In the instant case, without diminishing the
severity of the plaintiffs condition and the disruption caused by the hip
replacement surgeries and her continuing chronic pain disorder, I find that
there is likely to be substantial improvement in her condition after the first hip
replacement surgery.
[118] With
respect to the other cases to which I referred, I have considered them all and
found them helpful in my deliberations. However, ultimately, in assessing the
amount of non-pecuniary damages to which the plaintiff is entitled in this
case, I must focus on the plaintiffs individual circumstances based upon the
facts which are before me.
[119] In
assessing non-pecuniary damages which should be awarded to the plaintiff in
this case, it is not disputed that the MVA has had serious consequences for the
plaintiff and will make her life more difficult in the years ahead.
[120] She was 23
years of age at the time of the MVA. She is now 27 years of age and in her
child bearing years. I accept that it is her intention to have two additional
children. I also accept that the first hip replacement will occur within five
to ten years, which I find means that she will likely have further children
during a time when the hip has further deteriorated, increasing her level of
pain and decreasing her mobility. She will likely require a mobility aid, as
well as pain medication. The seriousness of her hip condition will profoundly
affect her ability to enjoy this important period of a womans life by impinging
on her physical ability to participate in activities with her children until
after the first hip replacement. That is not to say that she wont be able to
be a wonderful mother, but rather it will affect the level of care she can
provide and type of activities she can enjoy with her children.
[121] Once she
has had the first hip replacement, I accept the evidence of Dr. Duncan that
the plaintiff will not have the pain symptoms caused by the torn labrum and
deterioration of her hip for a period of approximately twenty to twenty-five years
and the limitations on her mobility will in the meantime be substantially alleviated.
She will be able to be active again until the period leading up to and
immediately following the next hip replacement. That said, I also accept the
evidence of Dr. Jaworski that it is likely she will continue to have some residual
pain associated with her chronic pain disorder. I find that while an exercise
program, weight loss and cognitive therapy are likely to have a positive effect
on her symptoms, the psychological component of chronic pain disorder militate
against her feeling totally pain free after the first hip surgery. Further, as
noted above, her need for two further hip surgeries and the associated recovery
time will disrupt the course of her life.
[122] In
assessing the effect of the MVA on the plaintiff, I have also considered the
severity of her injuries, which resulted in her being off work for over a year
and precluded her from participating in physical activities with her son and
fiancé and which made her, at times, irritable when interacting with them. I
find that she did suffer considerable pain and headaches that negatively
affected her sleep and mood. While the pain in her shoulder, wrist and ankle
pain have resolved and the pain in her neck and back have improved by 2013, I
accept that her chronic pain continued to the time of trial.
[123] I agree
with the defendants that the most problematic of her current issues is the
gradual deterioration of her right hip. I find that it restricts her ability to
walk, stand, and sleep comfortably and, as noted above, will continue to do so
until her first hip replacement. I observe that the pain and fatigue she has
experienced on a recent trip to Disneyland caused her to use a wheelchair for
periods as she was not able to keep up with family members. I accept that she cannot
perform the normal household duties in the same extent she did in the past,
although she does perform such duties.
[124] While it
is to the plaintiffs credit that she returned to full time employment after
the MVA, she has had to be accommodated by being relieved from lifting and
carrying duties. I accept that she worked even though she was experiencing pain
symptoms and was in a job which was not within her chosen field. She would have
returned to the job at the retirement home but was unable to do so because of
the physical demands of the job.
[125] Given the
disruption caused to the plaintiffs life and considering all of the
circumstances, I conclude that an appropriate award for the plaintiffs
non-pecuniary losses is $175,000.
Past Wage Loss
[126] Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have earned but for the injuries that were sustained: Rowe v. Bobell
Expresss Ltd., 2005 BCCA 141. In the ordinary course, the amount of income
tax payable for gross earnings should be deducted; Hudniuk v. Warkentin,
2003 BCSC 62.
[127] The
parties agree that the plaintiff was unable to work for approximately 14 months
following the MVA. The amount of the wage loss has been agreed to be $37,000
for past wage loss, for a net total amount of $30,750.
[128] I
conclude, therefore, that the plaintiff is entitled to the net amount for past
wage loss of $30,750.
Future Earning Capacity
[129] The legal
principle that governs the assessment of loss of earning capacity is that,
insofar as possible, the plaintiff should be put in the position she would have
been in but from the injuries caused by the defendants negligence, Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32.
This involves a comparison of the likely future of the plaintiff if the
accident had not occurred to her likely future working life in light of this
occurrence.
[130]
Madam Justice Dardi in Hunt v. Ugre, 2012 BCSC 1704 at paras.
189-190, summarized the onus on the plaintiff to prove a future loss of earning
capacity:
[189] The recent jurisprudence of the Court of Appeal has
affirmed that the plaintiff must demonstrate both an impairment to his or her
earning capacity, and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a capital
asset approach: Perren v. Lalari, 2010 BCCA 140 at para. 32.
Regardless of the approach, the Court must endeavour to quantify the financial
harm accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y at para. 183.
[190] As enumerated by the Court in Falati v. Smith,
2010 BCSC 465 at para. 41, affd 2011 BCCA 45, the principles which inform
the assessment of loss of earning capacity include the following:
(i) The
standard of proof in relation to hypothetical or future events is simple
probability, not the balance of probabilities: Reilly v. Lynn,
2003 BCCA 49 at para. 101. Hypothetical events are to be given
weight according to their relative likelihood: Athey at
para. 27.
(ii) The
Court must make allowances for the possibility that the assumptions upon which
an award is based may prove to be wrong: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 at 79 (S.C.), affd (1987), 49 B.C.L.R. (2d) 99
(C.A.). Evidence which supports a contingency must show a realistic as
opposed to a speculative possibility: Graham v. Rourke (1990), 75
O.R. (2d) 622 at 636 (C.A.).
(iii)
The Court must assess damages for loss of earning capacity and not
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The assessment
is based on the evidence, taking into account all positive and negative
contingencies. The overall fairness and reasonableness of the award must
be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.
[131] In this
case, it is not disputed there is a real and substantial possibility that the
plaintiffs future earning capacity has been impaired as a result of the
injuries sustained in the MVA. The remaining issue is what compensation should
be awarded for the financial harm that will accrue over time.
[132] Counsel
for the plaintiff submits that the plaintiff was on the brink of embarking on a
more remunerative and rewarding career, assisted by the mentoring of her future
mother-in-law, Ms. Keller. If the MVA had not occurred, the plaintiff would
have left her position as a server, which paid $14.20 per hour, and would have
trained to become a unit clerk, nurse aide, or licenced practical nurse or
special education teachers assistant, which positions would have generated an
income of between $21.00 and $28.00 an hour. The plaintiff claims that she
should be awarded approximately $503,408 for future wage loss.
[133] The
defendants acknowledge that the plaintiff will be limited to sedentary, light
and/or part-time work and will require some accommodations, depending on the
tasks to be performed, until after the three month recovery period following
her first hip replacement. The defendants also acknowledge that there will be a
six month period of recovery after her second hip replacement. The defendant
submits that the calculation of loss of future earnings should be done on a
capital asset approach, because of her young age and the uncertain path of her
working life had the accident not occurred. The defendants proposed two possible
scenarios which, it is submitted, demonstrate that an award of $200,000 is
appropriate for the plaintiffs future loss of earning capacity.
[134] I agree
that a capital asset approach is appropriate in this case, given her age and
the fact that the accident occurred at an early point in her working life. The
capital asset approach imports a consideration of such factors as: i) whether
the plaintiff has been rendered less capable overall of earning income from all
types of employment; ii) whether the plaintiff is less marketable or attractive
as a potential employee; iii) whether the plaintiff has lost the ability to
take advantage of job opportunities that would otherwise have been open; and
iv) whether the plaintiff is less valuable to herself as a person capable of
earning income in a competitive labour market: Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.). Negative and positive contingencies are to be
reflected in the assessment.
[135] Having
regard to such factors, it is evident the hip injury will render her
substantially less capable of earning an income until after she recovers from
the first hip replacement, which will be five to ten years from the time of
trial. She will become progressively more restricted in her physical mobility
until the surgery, such that there is a real and substantial possibility that
she would only be able to work part-time in the years immediately preceding her
first hip surgery. I accept the evidence of the occupational therapist, Ms.
Townsend, that the plaintiff cannot currently return to her pre-MVA employment
because of its physical demands and will only be able to work in a sedentary
job which allow her to have postural breaks and which does not involve
extensive neck flexion or higher strength demands. The recovery period after
hip surgery will be approximately three months.
[136] While it
is probable that her career prospects will improve after she recovers from the
first surgery, by that time she will have lost the opportunity to build her
career while she is relatively young. Further, even once she has recovered from
her first hip injury, I find that there is a real and substantial possibility
that her chronic pain disorder, and related low back and neck pain, will
continue to affect her in the sense that it will diminish her sense of capacity
to earn an income and render her less marketable as a potential employee than
she would otherwise have been.
[137] Even after
the first surgery, based upon the evidence of Dr. Duncan, it is evident that
her hip condition will further interrupt her earning capacity due to her need
for second hip replacement surgery in twenty to twenty-five years – which will
still be within her working life. At that point she will require a longer
recovery period of 6 months. I accept that the third hip surgery will probably
occur in her 70s, at which time it is probable that she will have retired.
[138] In
considering the positive and negative contingencies, I note that the
plaintiffs career advancement potential would likely have been disrupted by
maternity leaves, had the MVA not occurred.
[139] I also
note that she has a strong work ethic as demonstrated by her relatively long
work history for someone of her age. Given her past efforts to improve her
career potential (i.e. repeating grade 12 to improve her marks, taking a
college culinary course which she paid for through a student loan, changing
jobs to obtain a better paid position, pursing a plan to move into health care
work), I find that there is a real and substantial possibility that she would
have taken some form of additional training to obtain a better position in
health care, had the MVA not occurred.
[140] In my
view, the less physically demanding jobs in health care will still be a
realistic possibility for the plaintiff, even with the residual pain associated
with her soft tissue injuries. However, I accept that the plaintiff would likely
not be in a position to obtain such positions until after she recovers from her
first hip surgery – which may not occur for five to ten years. Prior to that
time, I accept the evidence of Ms. Townsend that the plaintiff will be limited
to sedentary, light and/or part time work, and will require some
accommodations.
[141] In
assessing the amount of the plaintiffs loss of earning capacity, I consider that
the scenarios posited by the defendants provide a more reasonable approach to
an assessment of her loss, to the extent that it better accounts for the value
of the hip surgery in addressing the primary source of the plaintiffs pain and
discomfort. That said, I consider that the defendants assumptions fail to take
sufficient account for the real and substantial possibility that the plaintiff,
but for the MVA, would have improved her earning capacity within five to ten
years.
[142] Bearing
in mind the legal principles identified above, and taking into account positive
and negative contingencies, I conclude that an award of $290,000 is the present
value of a fair and reasonable measure of the plaintiffs loss of future
earnings.
Cost of Future Care
[143]
The plaintiff is entitled to compensation for the cost of future care
based upon what is reasonably necessary to restore her to her pre-accident condition
in so far as that is possible.
[144]
The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiffs mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at para. 172, affd (1987) 49
B.C.L.R. (2d) 99 (C.A.); Spehar (Guardian ad litem of) v. Beazley, 2002
BCSC 1104 at para. 55, affd 2004 BCCA 290; Gignac v. Insurance Corporation
of British Columbia, 2012 BCCA 351 at para. 30.
[145]
In Prempeh v. Boisvert, 2012 BCSC 304, Madam Justice Dardi noted:
[108]
[The] assessment is not a
precise accounting exercise and
adjustments may be made for the contingency
that the future may differ from what the evidence at trial indicates: Krangle
at para. 21; X. v. Y. at para 267. The extent, if
any, to which a future care costs award should be adjusted for contingencies
depends on the consideration of the specific care needs of the plaintiff and
the expenditures that reasonably may be expected to be required – taking into
account the prospect of any improvement in the plaintiffs condition or
conversely the prospect that additional care may be required: OConnell v.
Young, 2012 BCCA 57 at paras. 67-68; Gilbert v. Bottle, 2011 BCSC
1389 at para. 253.
[146]
Mr. Justice Donald addressed claims for future care giving costs in Milliken
v. Rowe, 2012 BCCA 490 at paras. 52-57. Although in dissent, he explained at
para. 56 the distinction between future caregiving services and loss of
capacity claims:
I conclude that when the capacity
to provide care to an ill or disabled family member is impaired by
accident-related injuries, it is a loss of the plaintiffs personal capacity
and is not dependent on whether replacement costs are in fact incurred prior to
trial. Claims for future caregiving costs, on the other hand, are directly
related to services that will reasonably be expected to be provided to
compensate the plaintiffs impaired caregiving capacity in the future, based on
need and opportunity. The fact that the plaintiffs future supplemented or
replaced caregiving directly benefits her family is irrelevant.
[147] In this
case, the parties are in agreement that the plaintiff will require for her
future care various mobility aides, physiotherapy, counselling, medication,
transportation, and exercise and weight loss, although they differ on the need
to purchase a scooter, the need for an occupational therapist, and the cost of
certain items. The substantive issue between the parties relate to homemaking and
child care support costs. I will therefore address these issues first.
Homemaking and Child Care Support
[148] In this
case, the plaintiff claims, as future case costs, the homemaking and child care
support that the plaintiff will require due to her increasing physical limitations
which she will have to endure prior to the hip replacement surgeries, and for a
period after each of the surgeries. The plaintiff claims that she will require a
nanny while her children are newborns and then child care support until they
are older.
[149] The plaintiff
claims that for the first twenty years, the plaintiff will require part time
homemaker support for 17 years and a full time nanny who would provide
homemaking and child care support for 2 years. She also seeks child care
support for 7 years after her return to work; for 1 year after the first hip
surgery; and for the next 20 years ongoing homemaker support and support
following the second and third surgery. The plaintiff relies on the report of
the occupational therapist who recommends extensive child care support for the
plaintiff based on the reports of Dr. Duncan and Dr. Jaworski. The total
homemaking and childcare support claimed is $249,513.
[150] The
defendants recognize that the plaintiffs ability to manage household chores
will be compromised in the six to ten years leading up to the first hip
replacement surgery and for four months following the surgery. The defendants
also recognize that she will require increased assistance for the two years
leading up to the second hip replacement surgery and for six months following
the surgery. The defendants calculate this cost based upon $25/hour cost for
housekeeping services, for a total of $98,033.
[151] The
defendants submit that the claim for the provision of child care services is
too speculative, relying on the decision of the Court of Appeal in Shapiro
v. Dailey, 2012 BCCA 128.
Homemaking
[152] In my view,
this is a proper case for an award for the plaintiffs future costs related to
her impaired capacity to perform homemaking duties. It is not disputed that her
capacity to perform such duties will become increasingly and substantially
restricted until after her first surgery and then again prior to her subsequent
surgeries. I accept the opinion of Dr. Duncan that she will become more and
more immobile to the point that she will require walking aids prior to the hip
replacement surgeries.
[153] The defendants
estimate of her future homemaking costs is reasonable, although it does not
account for the assistance required for her third hip replacement.
[154] I award
the defendant $112,000 on account of her impaired ability to provide homemaking
duties in the future.
Child Care
[155] With respect
to her future caregiving capacity, I will first consider the defendants
submission that the decision of the Court of Appeal in Shapiro has
determined that nanny services for children that a plaintiff planned to have is
too remote to be recoverable.
[156] In that
case, there was evidence as to the plaintiffs future care costs resulting from
her injuries, including homemaking services and the costs of a nanny, given her
plans to have children. The Court noted, at para. 51, that assessing the costs
of future care, like other hypothetical future events, has an element of
prediction and prophecy and should reflect reasonable expectations of what
the injured person will require with the aid of placing her in the position she
would normally have occupied, but for the accident. The assessment is to be
objective, based on the evidence and must result in an award that is fair to
both parties, Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at
paras. 21-22.
[157] The Court in
Shapiro upheld the assessment of damages for homemaking assistance on
the basis that her injuries increased the amount of time she would require such
services and agreed that the award of $180,359 was fair and reasonable.
[158] In respect
of the $32,115 award for the cost of a nanny, the Court noted that the
plaintiff had testified that she was committed to being a working mother and
her pre-accident plans were to have nanny in place for child care. In these
circumstances, the Court held that the trial judge failed to take into account
that the plaintiff would have required these services anyway due to her career.
[159] Further, the
Court said that an award for a smaller amount for nanny services, for the
period the plaintiff was on maternity leave, was not justified in light of the
speculative nature of the many contingencies and uncertainties surrounding the
terms and timing or a nannys retainer (at para. 56).
[160] Although
the decision does not contain detailed reasons on this aspect of the decision,
it appears that the Court was critical of the lack of explanation in the trial
judgment in relation to the calculation of the costs for nanny services (see
para. 50). It also appears that there was an acknowledgement of an overlap
between homemaking services and the services a nanny would provide. I did not
take the Court to say that the costs of child care could never be compensable
where they meet the threshold for such damages, as set out in para. 51 of the Courts
reasons.
[161]
In this case, while not referred to by the parties, I have also
considered the decision of the Court of Appeal in Milliken v. Rowe, supra,
in which the Court reviewed the principle of remoteness in the context of a
claim for a loss of caregiving capacity. In that case the Court, by a majority
decision, overturned the decision of the trial judge in respect of the
compensation awarded to the plaintiff for costs associated with her inability
to care for her disabled husband, where the husbands disability occurred three
years after the accident.
[162]
The Court held that the caregiving costs were not reasonably forseeable
and were too remote to be recoverable:
[30] At para.
169 of his reasons, the trial judge found it "readily foreseeable that an
injury to a person’s shoulder that causes them difficulty in the carrying out
of household tasks of a related nature even if those tasks come into existence
after the injuries have been caused". To support this statement, he cited
S.M. Waddams, The Law of Damages, Looseleaf (Aurora, Ont: Thomson
Reuters, 2010), which restated the proposition that one need only "foresee
in a general way the class or character of injury which occurred".
[31 ] With respect, I
disagree that the loss in this case reasonably could be foreseeable even under
that standard. At its core, the award here is based merely on the fact that,
at the time of the tort, the respondent and her husband were married with a
possibility that at some future date the husband might require care of some
kind. This did not make such care reasonably foreseeable at law. It might
never occur: the respondent could die before care was required; the need for
care might never arise; her surgery could eliminate the problem or diminish it
significantly; or, her full-time employment may have eliminated or diminished
her ability to provide care regardless of the accident. While plainly
foreseeable as a theoretical, factual outcome in hindsight, this possibility
was not a "real risk" in "the mind of a reasonable man in the
position of the defendan[t]".
[Emphasis added.]
[163] In
determining whether the plaintiffs claim for compensation related to a lack of
caregiving capacity is too remote in light of this authority, I note the facts
in the instant case are distinguishable from those in Milliken.
[164] In Milliken
the illness of the plaintiffs husband did not arise for three years after
the motor vehicle accident. However, in this case, at the time of the MVA the
plaintiff was in her child bearing years and had already had a child. This is
not a case based on the mere possibility that at some future date the plaintiffs
ability to care for a child might be affected by the accident. As stated in Shapiro,
future care costs should reflect the reasonable expectations of what the
injured person will require with the aim of placing her in the position that
she would have occupied but for the accident. In my view, the plaintiffs need
to care for a child was not just a theoretical risk but a real risk in the mind
a reasonable person in the position of the defendant. It was reasonably foreseeable
that an injury to the plaintiff may affect her ability to care for a child.
Further, given the probability of a plaintiff having more than one child, I
find it was reasonably foreseeable that an injury to the plaintiff may affect
her ability to care for the two further children she had planned to have.
[165]
I observe that in subsequent decisions of this court, the future costs
of child care have been allowed. For example, in Gillam v. Wiebe, 2013
BCSC 565, Mr. Justice Verhoeven allowed a claim for the child care costs
for the plaintiff on the basis that it replaced a care giving capacity that the
plaintiff otherwise had:
[169] As
noted, the defendants contend that A.’s care needs are caused by her condition,
not the motor vehicle accident. Of
course that is literally true, but it does not address the question of whether
the plaintiff should be compensated for her lost capacity to care for A.’s
needs.
[170] The
accident has not changed A.’s condition or needs. What has changed is the
ability of the plaintiff to care for A., and also the plaintiff’s need for
assistance with A.’s care in order to advance the plaintiff’s own health and
rehabilitation. On the medical and other evidence at trial, the plaintiff needs
help with child care for A. in order to support the plaintiff’s own health and
rehabilitation, and to support her continued ability to function as she could
have done but for her injuries. Awarding damages for the cost of A.’s care
is not for A.’s benefit; it is for the benefit of the plaintiff, and also to
replace a lost capacity the plaintiff would have otherwise had. This is
compensable as a discrete loss of homemaking capacity, or as Donald J.A. termed
it, a loss of care-giving capacity. In my view, there is doctrinal overlap, in
the sense that on the facts of this case the claim is also justified as future
cost of care. However compensation is called for in order to restore the
plaintiff to her original position; that is the position she would have enjoyed
but for the negligence of the defendant: Athey, at para. 20.
[Emphasis added.]
[166]
In Brewster v. Li, 2013 BCSC 774, Mr. Justice Voith also allowed
a claim for child care costs:
[181] The
second subcategory pertains to child care. Ms. Berry proposes that the
plaintiff be provided with two hours of childcare every day for the next seven
years or until her youngest child is 11 years old. These services are said to
be required to get her children ready for school and to help with meals. There
is no medical evidence which indicates that the plaintiff will require such
ongoing assistance. Dr. Russell’s evidence did address the plaintiff’s need
for child care while she attends a carefully graduated conditioning program. I
also consider that some such child care may be required thereafter until her son
is in school on a full-time basis so that she can both re-enter the workforce
and maintain her fitness regime. I consider the figure of $7,500, using the
unit figures developed by Ms. Berry, achieves this object. That figure is
roughly based on Ms. Brewster requiring four hours of childcare three times a
week for the next six months and two hours a day for the following 18 months.
[Emphasis added.]
[167]
Further, in Payne v. Miles, 2013 BCSC 1545, Mr. Justice Voith
allowed a claim for ongoing child care assistance the plaintiff would require
if she had one or more children:
[144] Recognizing the significant unknowns that arise from
this care expense, I consider that the various considerations and scenarios
that underlie Mr. Kerr’s report and the care costs he generates for them are
more reasonable than those advanced by Ms. Landry. In particular, I consider
that the level of child care assistance proposed by Ms. Landry is excessive.
Counsel for Ms. Payne, in his closing submissions, effectively conceded this.
[145] Having said this, Mr. Kerr’s
calculations are premised on Ms. Payne only having one child. Mr. Kerr also
accepted that his calculations were premised on Ms. Payne having a live-in
nanny and that the cost of a live-out nanny would be 50% higher. Mr. Kerr did
not reference the fact that, if Ms. Payne marries, she is more likely than the
average person to get divorced–a factor which would tend to increase the
burden of caring for a child. There are, then, various further contingencies
which justify fixing Ms. Payne’s future child
care costs at $275,000. I consider that this amount is reasonable and that it
is supported by the medical evidence, in particular by the opinion of Dr.
Anton.
[Emphasis added.]
[168] On a
similar basis, I consider the plaintiff is entitled to an award which compensates
her for the future costs she will incur in caring for her children. It is not
seriously disputed that she will need support to care for her children in the
period prior to and immediately after her first hip replacement surgery. The
defendants implicitly suggest that homemaking services will be sufficient.
However, in my view, while homemaking services need to be accounted for to
ensure that there is no duplication of services, certain of the services that
the plaintiff will require relate solely to the care of her children and are in
addition to the homemaking services she will require.
[169] With
regard to the particular child care services recommended, the occupational
therapist proposed that child care be provided to facilitate the plaintiffs
full participation in weight loss and exercise programs to ameliorate her
chronic pain disorder. Although Jacob is in school, as the plaintiff is
currently working full time, I accept that she will need child care in order to
fully participate in her rehabilitation program over the next two year period.
[170] It was
also recommended that a nanny would be required to assist the plaintiff with
her infant children and that additional child care support would be required
while the children are young. With respect to child care for children she and
her fiancé plan to have, as noted above, I find that it is probable that at
least one child will be born before she has the first hip replacement surgery. I
accept that the two years leading up to the surgery is likely to be a time when
she has the greatest physical limitations in terms of her mobility and
increased pain.
[171] During
this period, she will not be in the position to provide the level of care for
Jacob and any other children she would otherwise have provided. She will
require a high level of support because of her deteriorating condition. I
accept that, at least for this two year period she will require part-time and
then full-time child care support. Additionally, in the three month period
after the first hip replacement surgery, she will require full and then
part-time child care support to care for her children.
[172] While the
plaintiff seeks a significantly higher level of child care support than the
above, I consider that the periods where her caregiving capacity are likely to
be substantially impaired are the periods preceding and following the first hip
replacement surgery. As noted above, I find that the primary cause of her physical
disability is her hip condition.
[173] I, therefore,
consider that the plaintiff is entitled to compensation for her loss of
caregiving capacity. However, as noted above, the amount of compensation must take
into account that homemaking services could be combined with child care during the
periods when the plaintiff is receiving child care support. With that in mind, I
assess the future care costs for child care at $40,500.
Mobility Aids, Therapy and Medication
[174] As noted
above, the parties are in substantial agreement on other costs required for the
future care of the plaintiff.
[175] With
respect to the differences between the parties, I note that the plaintiff seeks
the cost of a scooter, while the defendants suggest that it can be rented in
the event that it is required. I agree with the defendants that given the limited
time which the plaintiff may require a scooter to assist her, renting is a more
reasonable option. I have lowered the cost of medication to take into account
the likely effect of the exercise and weight loss program and the hip replacement
surgery in ameliorating her pain symptoms.
[176] I award
the following additional future care costs:
i.
Mobility aids, bathroom aids, dressing aids and position aids: $1,809;
ii.
Physiotherapy and kinesiology: $9,340;
iii.
Exercise program, dietician, and weight loss program: $5,807;
iv.
Occupational therapy: $1,320;
v.
Psychological counselling: $6,000;
vi.
Vocational counselling: $1,100;
vii.
Medication: $4,000;
viii.
Transportation: $2,040.
Special Costs
[177] The
parties agree on the amount of special damages incurred at $6,566.
Summary
[178] In summary,
the damages awarded to the plaintiff are assessed as follows:
Non-pecuniary damages | $175,000 |
Past Income Loss | $30,750 |
Loss of Future Earning Capacity | $290,000 |
Homemaking and Child Care Costs | $152,500 |
Other Future Care Costs | $31,416 |
Special Damages | $6,566 ___________ |
Total | $686,232 |
[179] The
plaintiff is entitled to her costs at scale B, unless there are circumstances
the parties wish to address.
Madam Justice W.J.
Harris