Adams v. Rhys-Williams

2020 BCSC 598 Adams v. Rhys-Williams

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Adams v. Rhys-Williams, 2020 BCSC 598 Date: 20200420 Docket: M160406 Registry: Vancouver Between: Malinda Adams Plaintiff And Victor M. Rhys-Williams and Liberty S. Rhys-Williams Defendants Before: The Honourable Mr. Justice Jenkins Reasons for Judgment Counsel for the Plaintiff: K. Miles C. Caldwell Counsel for Defendants: J. Zilkowsky J. Tarantino Place and Dates of Trial: Vancouver, B.C. December 9-13 and 16-17, 2019 Place and Date of Judgment: Vancouver, B.C. April 20, 2020 Table of Contents Introduction.. 3 General Evidence.. 4 The Plaintiff Prior to the Accident 4 The Plaintiff After the Accident 5 Cross-Examination of Ms. Adams. 10 Testimony of Ashawn Edwards. 11 Jessica Kon.. 12 Everton Prendergast 13 Expert Evidence.. 14 Dr. Heather Finlayson.. 14 Russell McNeil 17 Darren Benning. 19 Dr. Paul Robert 20 Kim Thompson.. 23 Analysis.. 24 Findings of Fact 24 Non-Pecuniary Damages for Pain and Suffering. 25 Past Income Loss. 26 Future Income Loss and Loss of Future Income Earning Capacity. 29 Special Damages. 32 Loss of Housekeeping Capacity (Past and Future) 32 Cost of Future Care. 33 Summary.. 34 Costs.. 34 Introduction [1] The plaintiff, Ms. Adams, sues for damages arising out of a motor vehicle accident, which occurred on Interstate 5 near Ferndale, Washington on February 23, 2014. As all parties are British Columbia

residents, this action has been commenced in this province. [2] The accident occurred on a freezing highway. The vehicle driven by the plaintiff's husband, Everton Prendergast, had pulled over on the northbound shoulder to wait for traffic to calm when the defendants' vehicle drove into the back of Mr. Prendergast's vehicle with considerable impact. The plaintiff, Ms. Adams, was seated in the front passenger seat of her husband's vehicle and was wearing a lap/shoulder seat belt. Her car seat rolled forward in its tracks, which caused the seatbelt to tighten. [3] Mr. Prendergast's vehicle, a Chrysler Intrepid, was a total write-off, which they were fortunately able to get back to their home. Based on photos of their vehicle after the accident, the testimony of Ms. Adams regarding the border officer's comment that the car was unsafe and should be taken off the road, seems justified. [4] The defendants admit liability for the accident. They also admit Ms. Adams suffered injuries in the accident. The only issue is the extent of those injuries, and the appropriate quantum of damages. [5] The defendants submit Ms. Adams' injuries were minor soft tissue injuries, which have resolved since the accident. Ms. Adams claims to have suffered further soft tissue injuries to her neck, back and right knee and says she continues to suffer from myofascial pain syndrome, cervicogenic headaches

and chronic pain disorder, which were also caused by the accident. [6] Ms. Adams claims a significant amount for future income loss and loss of future income earning capacity. She says she was unable to continue with her employment as a security officer in a casino due to her ongoing pain. As a result, she has left her previous employment and started a cleaning business, which she operates from home with the assistance of family members. General Evidence The Plaintiff Prior to the Accident [7] Prior to the accident, Ms. Adams had become a mother of four children, the youngest of which was born in November 2012. She and Mr. Prendergast had commenced their relationship in 2011 and married in 2012. Prior to moving to British Columbia, Ms. Adams had worked with a friend in a cleaning business in Montreal before becoming pregnant. [8] Upon arrival in British Columbia in 2003, she had entered a degree program at Douglas College in criminology, which she eventually abandoned to become a "working mom". [9] Ms. Adams has been an excellent chef who enjoyed cooking for her family and was also very industrious at cleaning her house, even with several children at home. [10] Since her youth and prior to the accident, Ms. Adams had suffered from anemia due to personal health issues and associated dehydration, which continued to cause migraine headaches before undergoing a hysterectomy. She

testified that the migraine headaches did cause her to miss some shifts at work, but that she had been able to make up for missed time by working overtime. [11] Ms. Adams stated that prior to 2011 she had been happy with her body. She described herself as "curvy". After the birth of her son in 2012, she said she had gained weight, but had then lost weight down to her pre-pregnancy weight. After that birth, Ms. Adams was on medical leave and returned to work by August of 2013. At that time, she testified that her health was fine with no complications. [12] Also prior to the accident, she had cared for her husband who had endured open heart surgery. [13] After the accident and in 2016, her young son was diagnosed to be on the autism spectrum. [14] With several children and a husband who earned approximately $40,000 per annum, Ms. Adams accepted that she needed to keep working to be able to keep the family financially viable. [15] At the time of the accident, Ms. Adams was forty years old. She had been employed by the Grand Villa Casino in Burnaby, B.C., for ten years as a security officer working on the floor of the casino. She was very successful working at the casino, enjoyed the work and the company of her work companions. Ms. Adams had previously taken courses, which included subjects such as, the law relating to gambling and how to control disturbances and altercations,

which could erupt on the floor. It was a union position with substantial benefits and a forty-hour work week. With overtime, it could lead to around sixty hours per week. She also had significant seniority, which allowed her to choose her work shifts. [16] Also prior to the accident, Ms. Adams reported a happy marriage with intimacy. She and her family members were also very active in their church as Seventh Day Adventists. The Plaintiff After the Accident [17] In the accident, Ms. Adams' seat belt tightened quickly, causing a cut under her left breast and her knee to strike the glove compartment. She testified that her neck was swung forward and "bounced back". [18] From the accident, Ms. Adams and her husband returned home, going to Surrey Memorial Hospital that evening. Ms. Adams experienced neck and back pain, a headache and still had knee pain. She was given painkillers, but the pain persisted. [19] Ms. Adams testified to not having knee, back and neck pain before the accident. [20] Shortly after the accident, she left with her family on a cruise, which had been organized and paid for prior to the accident; she testified to having spent five of the seven days of the cruise in her room due to pain and feeling weak. [21] After the accident, Ms. Adams took two weeks off work, but on her return, she continued to experience pain while working on the casino floor, pain she had

never previously encountered. As her husband was suffering from sickle cell anemia and missing work, it was necessary for Ms. Adams to continue working, if possible, as the family needed her income. [22] Her pain continued to persist and work continued to be very difficult for her. As a result, she took Advil to counter the pain and briefly wore a knee brace. The neck and back pain, as well as lingering headaches, continued and she declined overtime due to the pain. Being exhausted after work, she would go home to lie down. It was a rule at work that security officers were not to be seated, but on occasion, she was able to briefly sit, with the cooperation of her fellow workers. On occasion, and when possible, Ms. Adams would leave her shifts early. She described her pain at the end of her shifts to be "excruciating". [23] The pain continued, her neck and back would swell up and, on occasion, to relieve pain, she had her co-worker undo her bra to relieve pressure on her back and neck. She continued to have headaches, some of which she described as migraine headaches. While she continued to work and persevered, the pain continued and she ceased work at the casino due to pain in August of 2016, when her long term disability benefits were approved. [24] Since the accident, Ms. Adams has undergone several surgeries, including: breast reduction surgery in January 2016, a

hysterectomy on February 2, 2017 and bariatric surgery (gastric sleeve surgery) in December 2018. [25] Ms. Adams testified the breast reduction surgery was required due to the ongoing pain in her neck and back. Prior to the accident, her breasts had returned to their original size following the pregnancy. However, she testified that after the accident her neck and back pain was so severe that she reluctantly decided upon the surgery. Unfortunately, the neck and back pain did not recede as a result. Ms. Adams took four weeks off work due to the breast reduction surgery. She submits she would not have had that surgery "but for" the accident. [26] Ms. Adams also underwent bariatric surgery. Following the accident, Ms. Adams gained substantial weight, approximately fifty pounds. This weight gain was likely due at least in part to her relative inactivity following the accident. This surgery was an attempt to lose weight, which did occur, however, her neck and back pain continued as before. [27] The hysterectomy was related to Ms. Adams' pre-existing health problems and not the accident. [28] Ms. Adams had the bariatric surgery and hysterectomy while she was on disability leave. [29] Ms. Adams testified she has experienced depression and anxiety since the accident. She said she never previously took medicine for pain. When her mood became depressed after the accident, she was hoping

the pain would eventually decrease, but soon realized she was not getting better. She added that since the accident she has had little or no social life, she no longer attends church on a regular basis as before and she finds that she has nothing else to talk about except her pain. [30] Continuing, Ms. Adams testified at length of the joy she experienced from cooking for her family, planning new recipes, and how she enjoyed keeping her home in immaculate condition. She spoke of her joy at being creative in the "safe haven" of her home. [31] Ms. Adams then discussed her current activities in the home. She testified that she no longer finds cooking enjoyable. She cleans the house not at all or much less often at her current pace and becomes exhausted. She stated her children and husband help out with household chores. As the master bedroom in her home was upstairs and the stairs were difficult for her, she moved her bedroom down to the main floor of the home so all but the laundry can be accessed without stairs. She also testified regarding the time required to care for her youngest son due to his autism. [32] By 2018, Ms. Adams had hoped that treatment, including physiotherapy, would ease her pain and allow her to return to her former position at the casino. She completed a plan of therapy with massage and prescribed exercises with a plan to gradually return to work at the

casino. She did return to her former position at the casino on July 16, 2018, but by the end of a shift was physically exhausted, slept much of the time she was away from work, took her pain medication and after a period of time realized her body was not coping with the demands of the job. [33] Ms. Adams considered the possibility of trying a different role at the casino which was less demanding and found that all positions on the casino floor required standing or walking except for management. The surveillance positions require lengthy periods of sitting and watching, which was equally demanding, and her back pain continued. She was satisfied that after inquiries, there were no other positions in the casino which could accommodate her physical problems. [34] As well, Ms. Adams testified that since the accident, she has had to hire child care workers for her autistic son, as she was unable to adequately care for him due to her injuries. Her son has more recently suffered from seizures, the effect of which is very frightening. As a result, someone must now be constantly watching her son, and he now sleeps with Ms. Adams. Ms. Adams is also concerned that the medicine she takes for pain makes her drowsy and, at times, inattentive. She can no longer pick up her son due to pain and can no longer go to the pool with him. [35] Regarding her son, Ms. Adams concluded the need to hire

care workers will continue into the future as she cannot care for him alone and, as she said, so "my family can move on". [36] In 2018, her friend Tammy, a friend from her church, contacted her regarding setting up a cleaning business if Ms. Adams was not able to continue with her employment at the casino. Ms. Adams then made arrangements to set up a cleaning business by purchasing the client list from Tammy and with a loan from a friend for $50,000. She purchased a business and incorporated a company named "Maid to Shine Inc." to carry on a business of cleaning and maintaining commercial business premises. In borrowing the funds to buy the business, Ms. Adams is required to pay off the loan at $2,200 per month. The only manner in which Ms. Adams was able to execute the cleaning work of the company was if family members, including her son and daughter, and employees retained from the vendor would continue under the new ownership and perform the physical work of cleaning the commercial client's premises. As well, her sister moved to British Columbia to assist Ms. Adams for a year. [37] The intent of Ms. Adams in buying the cleaning business was that she would have the benefit of family members and her sister to carry out the physical work and Ms. Adams could arrange for the work, invoice and get payment for the work with the agreement of family members performing the work, which

was primarily on weekends. In effect, her plan was to organize the work and supervise the same to gain revenue from clients with the assistance of family members and friends who sought no compensation. Another benefit to Ms. Adams in setting up the cleaning business was that she could manage that business from home and still be able to provide a level of care for her youngest son. Ms. Adams was having difficulty sitting and dealing with the work required for her business without assistance which was needed in caring for her youngest son. [38] In performing her work for the cleaning business, due to the pain she continues to experience in her back and neck, Ms. Adams has been working from her bedroom on the main floor of the house. She plans the work required for the business while lying in bed and deals with work assignments, invoicing, new possible business and speaking to staff from her home. Ms. Adams performs nominal cleaning, occasionally wiping counters and directing her employees (family). Upon commencing the cleaning business, she employed some of the employees under the previous owner, however, those employees have now left and Ms. Adams relies on family members, including her sister, who has now moved to the lower mainland. [39] Based upon all of the evidence before me, the only manner in which Ms. Adams would be able to profit from the home cleaning business was with

the generosity of her family members who are unpaid. [40] Ms. Adams rarely now participates in family events, cannot enjoy cooking as she and her family have in the past and misses her former work at the casino. She also no longer participates in bike riding, camping and other social events with her family and friends, all due to her pain. [41] She continues, as does her husband, to be entitled to extended health benefits through the policy available to casino employees at a cost of $236 per month. [42] Ms. Adams seeks to attend a chronic pain clinic and to commence physiotherapy in a pool. Currently she has prescriptions for anxiety and depression (Cypralex) and pain (Gabapentin), although she takes Gabapentin less often now, as it tends to "knock her out". [43] She concluded her direct examination by stating, but for the accident, she intended to continue working at the casino. Cross-Examination of Ms. Adams [44] Cross-examination of Ms. Adams was generally unproductive for the defence. [45] Much of the time in cross-examination, Ms. Adams was questioned regarding the surgeries she experienced and lost time at work as a result. Regarding her other surgeries and her prior condition of anemia, her anemia has generally been overcome. Save for the work lost due to her hysterectomy and the surgeries had no relation to the accident or her injuries, save that her breast reduction

surgery was undertaken to attempt to alleviate her neck and back pain, which resulted from the accident. I will discuss the relationship between Ms. Adams' surgeries and her past income loss claim below. [46] Another area canvassed on cross-examination were questions directed to her as to whether she asked for and whether her employer offered accommodations at work to accommodate her pain and suffering. Ms. Adams testified in direct on her considerations of other positions at the casino which were referred to earlier in these reasons and satisfy any obligation she had to mitigate through finding accommodations from her employer. Accommodations which would have been of assistance to Ms. Adams were not available. [47] Also on cross-examination, Ms. Adams testified as to how the neck and back pain had affected her ability to sleep, her depression at not being able to work as she had for the ten years before the accident at the casino, her significant weight gain and other frustrations. Ms. Adams also emphasized that she runs her cleaning business from her laptop and phone while lying on her bed where she takes advantage of a hot water bottle and pain medicine to help her get through the day. [48] Throughout her testimony, Ms. Adams was clearly uncomfortable from sitting for an extended time in the witness box, but was very thoughtful in responding to questions, did not avoid

answering questions, was patient and not argumentative. Testimony of Ashawn Edwards [49] Ashawn is the twenty-one-year-old son of Ms. Adams from a prior relationship. He testified to the close family ties and that he, his siblings and Mr. Prendergast all pitch in to help Ms. Adams around their home with cooking, cleaning and other chores. He said the home is still not as clean and the meals are often less appealing since Ms. Adams was injured in the accident. [50] In contrast was Ashawn's testimony regarding his mother's life before the accident that the house was always clean, she was a "super mom" when caring for him and his sisters, that she never complained about work and often picked up extra shifts, she had exceptional energy, was a good cook and how active she had been in her church prior to the accident. [51] Ashawn continued in his testimony to state how his mother has "never been back to where she was before the accident", that on weekends "we" (the family) all help at the cleaning business, she was in pain but "she had the mindset to go to work". He concluded by saying that recently his mother had emotionally been better, but physically had not improved, that there was a huge difference between his mother before and after the accident. [52] Counsel for the defence obtained no admissions or contradictions in the cross-examination of the son of the plaintiff. Jessica

Kon [53] Ms. Kon was previously employed as a relief supervisor of employees of the Grand Villa casino, and as such, was supervisor to Ms. Adams, among others. She described how the B.C. Lottery Corporation regulations are intended to protect the casino assets and patrons, that the security personnel of the casino are on their feet "99 percent of the time", are constantly moving, observing, reporting and spend one hour periods at the door welcoming and observing patrons entering the casino. She also described how security personnel are required to carry chip boxes, "which can be very heavy and involve multiple trips". [54] Ms. Kon first became acquainted with Ms. Adams in January of 2015. She noted how Ms. Adams suffered through shifts on multiple occasions, often asked for assistance and, if there was an altercation, she would ask for help from other security personnel. [55] During one of Ms. Adams' lengthy shifts, Ms. Kon observed how Ms. Adams was obviously in pain and how her back had swollen so much that her bra strap was cutting into her skin. Ms. Kon gave her assistance, had Ms. Adams sit for twenty minutes and eventually sent her home after a shift of ten hours, at a time when Ms. Adams had wanted to finish her shift. That incident occurred in the spring of 2017, according to the testimony of Ms. Kon. On a prior occasion, Ms. Kon testified how Ms. Adams had asked to sit

for two minutes during her shift. Although Ms. Kon stated this incident occurred in 2017, she was likely in error and I find it more likely it occurred in the spring of 2016. [56] Ms. Kon also testified that Ms. Adams was a happy "big momma" who would be concerned if everyone was okay, help other staff, loved her job and really cared for other staff and patrons. She added that when accommodations were requested, they were generally only temporarily allowed. [57] On cross examination, Ms. Kon stated that Ms. Adams, "struggled tried to push through it", but there was no long term accommodation available to her. She added that, at times, she was unable to come to work, and in January of 2019, Ms. Adams left the casino. As above, I note that Ms. Kon's estimates of the dates are incorrect at places; this is to be expected and nothing turns on it. Everton Prendergast [58] Mr. Prendergast is the husband of Ms. Adams. He testified they met in 2011, that she was "radiant, smiled, was likeable and attractive inside and out". They began to live together and married in December 2012. At that time their home was immaculate, as a result of Ms. Adam's efforts. He also testified how, after a very difficult pregnancy, their son was born, after which Ms. Adams did not suffer from pain, and she went back to work, as her income was important to be able to cover expenses. [59] Mr. Prendergast was

driving at the time of the accident and stated that he had pulled to the side of Interstate 5 and noticed in his mirror a vehicle approach from behind, that Ms. Adams turned towards him and the impact, which came with a loud bang, caused Ms. Adams to be thrust forward, and her seatbelt to clinch her breast. Mr. Prendergast testified that he had his foot on the brake, but that they still went forward after the impact. [60] After the accident, Mr. Prendergast testified how Ms. Adams was in "lots of pain, her breast was caught in her seatbelt" and how they later went to Surrey Memorial Hospital. He continued that first, Ms. Adams showed knee, neck and back pain, and missed work, needing help walking and was in pain, "almost crawling to her room". Because of Ms. Adams' pain, they have not been able to embrace as before. Regarding intimacy, Mr. Prendergast stated "I don't have a wife any more we can't be intimate". [61] Mr. Prendergast also suffered injuries in the accident and he too has a prescription for back pain. At one point in the past year, he and Ms. Adams separated briefly due to the pressures, including their ongoing pain, Mr. Prendergast's dispute with his former spouse, the problems with their son, the need to support him and financial matters. These factors all contributed to the stress and resulted in a separation, but they have now reconciled. Expert Evidence Dr.

Heather Finlayson [62] Dr. Finlayson was qualified as a medical doctor, with a specialty in physical medicine and rehabilitation (physiatry), with expertise in the determination of causation of, diagnosis, prognosis and treatment of musculoskeletal injuries and psychological conditions arising from or aggravated by physical injury. She was called as a witness by the plaintiff and submitted a report regarding Ms. Adams dated May 16, 2019. [63] I summarize the opinions of Dr. Finlayson as described in her report: · P. 3 - Ms. Adams' clinical presentation is consistent with the diagnosis of myofascial pain syndrome. This is a medical condition in which pain originates in muscles, tendons, ligaments and other soft tissue structures in one or more regions of the body. In Ms. Adams' case, this predominantly affects her low back, but her upper back and neck have also been affected. · P. 3 - The clinical records of her family physician, Dr. Burger, document that she has also had symptoms involving her upper back and neck after the MVA. · P. 3. - Ms. Adams did not have a history of severe, frequent, or persistent low back pain or neck pain prior to the MVA of February 23, 2014. · P. 4 - Ms. Adams also experiences headaches that have a quality and location that are different from her migraines. These headaches are at the base of her skull and spread to her forehead. They occur and

diminish in association with flare-ups of her back and neck pain. These are typical of cervicogenic headaches, which refers to headaches that are caused or worsened by pain or other dysfunction originating in the neck area. It is likely that these headaches are the result of her neck and back pain that was caused by the MVA. Thus, this second type of headache that she experiences is likely a consequence of injuries sustained in the MVA on February 23, 2014. · P. 4 - Chronic pain disorder: Ms. Adams has experienced pain for over five years; this is chronic by definition. Her chronic pain has characteristics of a disorder called central sensitization. This is a phenomenon that occurs in some people who live with chronic pain and develop changes in the way the brain perceives pain. Ms. Adams' presentation is consistent with chronic pain with central sensitization and wind-up. · P. 4-5 - People who have a pre-existing history of chronic pain and/or mood disorders such as depression and anxiety are more vulnerable to the development of chronic pain disorders. Ms. Adams had a prior history of depression and anxiety as well as multiple life stressors that likely increased her risk for the development of a chronic pain disorder after she sustained injuries in the MVA. · P. 5 - Ms. Adams also has multiple medical and psychosocial conditions that have likely contributed to her chronic

pain disorder since the MVA. She has a history of anemia and dysfunctional uterine bleeding that have likely caused severe fatigue. She has experienced stresses in her family life that can reasonably be expected to contribute to changes in her mood and anxiety, which in turn have probably exacerbated her chronic pain disorder. While there are multiple factors leading to her pain and dysfunction since the MVA, her injuries sustained in the MVA have been major contributors. · P. 5 - At this point, Ms. Adams is not well-suited to work as a security guard. This job requires prolonged standing and walking, which will likely repeatedly exacerbate her pain to an intolerable degree. It is probable that she will continue to need periods of time off from this work if she tries to return to it. There is a substantial possibility that she will not tolerate this type of work into the foreseeable future. · P. 5 - Ms. Adams is probably able to manage her household chores because she has a great deal of support from family members including her husband, children and sisters. She would unlikely be able to do tasks that require prolonged or repetitive bending forward such as cleaning bathtubs, cleaning toilets and making beds. This is in keeping with the history that she reported to me. If she did not have family support available, she would probably require hired housekeeping assistance. · P. 6

- Under the heading "Recommendations", Dr. Finlayson has recommended the following: o pool-based exercise therapy as an excellent form of pain management for those with chronic pain and work with an exercise specialist such as a kinesiologist or aquatic therapist for 10-12 sessions. o a chronic pain program "to improve her ability to tolerate and function despite her pain". o medications for chronic pain as "there is a significant risk that these would be required into the foreseeable future" o housekeeping and yard work assistance will be required into the foreseeable future and she will have to hire assistance for those tasks. · P. 6 -- under the heading, "Prognosis", Dr. Finlayson stated "It is highly unlikely that Ms. Adams' pain will be eliminated" and "It is unlikely there will be a substantial change in her vocational potential as I anticipate that she will be unable to do a job that requires very prolonged standing and walking or heavy physical labour on a consistent basis at any point in the foreseeable future. Russell McNeil [64] Mr. McNeil was qualified as an occupational therapist with expertise in conducting capacity evaluations and cost of care assessments, as well as analyzing disability. Mr. McNeil assessed Ms. Adams on two occasions, August 2 and 26, 2019. Due to her severe restrictions, he wanted to see her in a natural environment to distract her from a test

and so they met on one occasion at her home. Accordingly, his second session with Ms. Adams was at a work site for her cleaning business. Mr. McNeil was very experienced at his profession and has clearly been a leader and highly respected among his peers. [65] Mr. McNeil's report dated September 2, 2019, was very lengthy and comprehensive. I will summarise or highlight some particularly relevant portions of Mr. McNeil's report and his testimony: · In Appendix D of his report under the heading of Pain Profile/Reliability of Disability Reports, at para. 220, Mr. McNeil stated "In order to gauge the reliability of Ms. Adams' pain reports, Distraction Tests and Waddell Signs were completed. All placebo/distraction tests were negative with no reports of increased pain indicating reliable reports of pain". · Also in Appendix D at para. 223, regarding testing of Ms. Adams' perceived capacity for functional activity, Mr. McNeil stated " her responses are internally consistent and valid" and "review of individual responses shows that she overestimated lifting and carrying capacity but accurately rated her restrictions performing tasks requiring reaching and spinal positioning". · At para. 225, Mr. McNeil stated: 225 Summary of Reports of Pain / Physical Restrictions: In my opinion, Ms. Adams' reports of pain and ongoing physical restrictions were generally consistent with her measured

and observed abilities. However, she does show a tendency to overestimate her lifting and carrying capacity as seen in her completion of the MTAP questionnaire. · At paras. 74 and 75 on page 12, Mr. McNeil opined: 74. Demonstrated Capacity - Based upon assessment results on August 2 and 26, 2019, Ms. Adams has not demonstrated the capacity to perform her previous work as a Security Guard on a full time or part time basis at a competitively employable work pace. 75 She has not demonstrated the capacity to perform the strength and stamina requirements of the work. She has not demonstrated the capacity to perform the prolonged standing and walking required of the work. · Commencing at p. 14 under the heading "Minimum Cost of Care Recommendations", Mr. McNeil detailed items and services Ms. Adams will require including: ü For pain management, specific pillows and a heat pad ü Specified homemaking assistive devices, as listed at paras. 86-89. ü Homemaking assistance as described at paras. 90-93 ü At pp. 16-18, Rehabilitation and Health Related Costs including occupational therapy, a pain management program, a personal trainer and gym pass, massage therapy, physiotherapy, psychological counselling to assist in developing strategies to deal with her pain and low mood flowing from her pain and medication and pain relieving substances as set out in paras 101 and 102. [66] Regarding his

statement at para. 74 that Ms. Adams had not demonstrated she was "competitively employable", Mr. McNeil explained the term to mean that Ms. Adams was unable to work at a competitive pace over a work day. [67] At times during his assessment of Ms. Adams, Mr. McNeil could not or would not continue with the testing due to Ms. Adams' pain and Mr. McNeil's observations. He stated on cross-examination that "she was not safe continuing on" and stopping was his decision, not that of Ms. Adams. [68] On cross-examination, when asked about his assessment of Ms. Adams' "active range of motion", Mr. McNeil confirmed his conclusions were based not on Ms. Adams' self-reporting, but on his physical exam of her including palpating to look for ranges of motion and he relied on "consistent objective testing". Mr. McNeil repeated that in performing an assessment he objectively "needed to know a responsible place to stop" as opposed to pushing a patient to perform to and past his or her capacity. [69] Also under cross-examination, Mr. McNeil, in commenting on the duration of Ms. Adams' chronic pain, testified she would have flare ups that needed to be managed through massage, physiotherapy and other methods. [70] On re-direct, Mr. McNeil stated "a chronic pain program reduces the risk of future injury". Darren Benning [71] Mr. Benning was qualified as an economist entitled to opine on the present

value cost of future costs of care, the present value cost of future income and the applicable multipliers. Mr. Benning has been so qualified as an expert in our courts, most likely on hundreds of occasions. His report of September 12, 2019, is at Tab 3 of the Expert Binder at trial. [72] Mr. Benning concluded in his report that the lump sum present value of future income loss in the case of Ms. Adams amounts to $170,750 and the net present value of Ms. Adams' future care expenses amounts to $248,402. [73] Cross-examination of Mr. Benning was very brief and did not seriously challenge his calculations. Dr. Paul Robert [74] On behalf of the defendants, Dr. Robert, a partially retired orthopaedic surgeon in St. Catherines, Ontario, performed an independent orthopaedic assessment of Ms. Adams on August 23, 2019, and has filed a very brief and rather cursory report dated September 3, 2019, filed as Exhibit 9 at trial. [75] At p. 6 of his report, Dr. Robert stated, under the heading "Summary of Physical Findings": The examination fails to demonstrate any objective neuromusculoskeletal pathology. The only objective findings were in keeping with a non-organic presentation. And also at p. 6, Dr. Robert stated, under the heading "Diagnostic Impression", the following: The examination fails to reveal any neuromusculoskeletal findings. Any soft tissue injury that may have resulted from

the impact has long since resolved and the only objective findings were in keeping with a non-organic presentation. Under the heading "Impairment / Disability": In the absence of any physical impairment I am unable to substantiate an ongoing disability at this time. And under the heading "Employability": She is capable of performing her pre-accident or any other employed [sic] for which she is suited on the basis of education, training and experience. [76] Dr. Robert testified by way of a video link to the courtroom from St. Catherines, Ontario. He stated he had no recollection of his examination of Ms. Adams or the length of the examination, but did state his typical IMEs last for between 35 to 45 minutes. During his direct examination, Dr. Robert spoke again of Ms. Adams reporting of pain during testing when little, if any, pressure was applied as a means of determining the reliability of her reporting. [77] Under cross-examination, Dr. Robert testified that in the case of soft tissue injuries, pain will inevitably resolve. [78] Ms. Adams testified that the independent medical exam lasted less than 30 minutes and other than two or three questions, Dr. Robert took no other history from her and a minimal physical exam, including poking her back and checking her knee reflex. [79] Ms. Adams submits that since Dr. Robert is an orthopaedic surgeon, his opinions are limited to the

scope of his specialty and do not address the principal concern of Ms. Adams, i.e. chronic pain. [80] In this respect, Ms. Adams has referred the court to the decision of Mr. Justice Saunders in Khudabux v. McLary, 2016 BCSC 1886: [91] The expert medical evidence presented at this trial brought into focus a difficulty that not infrequently arises when a defendant pursues the strategy of tendering the opinion of an orthopaedic surgeon to rebut allegations of soft tissue injury. Of course, there may be situations in which such a specialist feels able to offer opinion evidence that sheds light on the nature and scope of such complaints. But it is also the case that a clash between experts pitting an orthopaedic surgeon against a physiatrist, specializing in rehabilitation medicine - or even, as in the present case, against a family physician - can possibly leave counsel in the position of the hoodlum in the film The Untouchables, at the point when he realizes too late that he has brought a knife to a gunfight. [92] There is a tendency common to many orthopaedic surgeons who provide expert opinion reports in soft tissue injury cases before this court to express their opinions without qualification - specifically, without acknowledging the extent to which their opinions are shaped by or restricted to the narrow field of their own expertise. In the result, many such reports come

before this court that, in substance, say "I have examined this patient, and nothing is wrong with them," when what is really meant is, "I have examined this patient, and I am unable to diagnose any orthopaedic injury". Expert witnesses who provide opinions in such stark terms without explicitly stating the limitations of their opinion may, if their opinions contrast with complaints of pain and suffering that are found to be genuine, and are at odds with contrary opinion evidence from another medical expert, risk creating confusion. They may also leave themselves vulnerable to a finding of bias if the unstated limitations of their opinions are not drawn out at trial. [93] These risks should be avoided through counsel having, in the first instance, selected an expert witness qualified to give opinion evidence in a field relevant to the issues at stake. Counsel should be familiar with the commonly understood scope of expertise held by specialists in that field, and should endeavour to determine whether the expert they have retained shares that understanding. Once the expert's report has been prepared, counsel should always explore with their expert witness the extent to which their opinion has been shaped, in terms of what is said and what is not said, by any limitations in the witness' expertise. Lastly, counsel should ensure that any limitations or qualifications in the

expert's opinion are frankly acknowledged in the substance of the report. [81] I agree with the opinions expressed by Saunders J. As judges of this court, we regularly deal with motor vehicle actions in which the plaintiff claims to have suffered soft tissue injuries, which have caused the plaintiff considerable pain for periods of between three to six months and, as a result, that the pain is deemed by experts, usually physiatrists, to result in chronic pain. Chronic pain by definition does not pass after a number of months, it lingers, sometimes intensifies and sometimes recedes over many months and years, possibly for life. For Dr. Robert to opine that the soft tissue injuries will "inevitably resolve" with the process of healing, flies in the face of hundreds of decisions of this court to the contrary. [82] Considering Dr. Robert's specialty as an orthopaedic surgeon, his opinions should not be preferred over that of a physiatrist such as Dr. Finlayson, who specifically and regularly deals with the management of chronic pain. [83] I have considered the report and testimony of Dr. Robert carefully. I conclude, based upon his very cursory report in which he fails to explain how he has come to the conclusion that Ms. Adams has no ongoing disability and his limited assessment of Ms. Adams, that his opinions appear to have been hurried and more of an attempt to summarily dismiss

the injuries claimed by Ms. Adams. As well, Dr. Robert's opinions are contradictory to those of the other defence expert, Ms. Thompson, whose evidence I summarize below. These findings add weight to the conclusions of Dr. Finlayson in particular. Kim Thompson [84] Ms. Thompson was qualified as an expert in the field of kinesiology, able to conduct functional capacity evaluations and analyze disability. [85] As I have stated above, the opinions of Dr. Robert are generally contradicted by Ms. Thompson, a kinesiologist. Ms. Thompson examined Ms. Adams on August 13, 2019, and her report dated September 3, 2019 was filed as Exhibit 10 at trial. According to Ms. Adams, the evaluation carried out by Ms. Thompson lasted between 90 minutes and two hours. [86] At p. 7 of her report, Ms. Thompson opined, under the heading "Ability to perform pre-accident job": Based upon her performance during this evaluation, and provided there are no medical contraindications, Ms. Adams meets the physical demands for sedentary work and/or activities. Consequently, she does not meet the physical demands of her pre-accident work as a full-time Floor Security Officer for Grand Villa Casinos. In her testimony, Ms. Thompson stated "security work exacerbated her symptoms". [87] Later, at p. 8 of her report, after discussing Ms. Adams' current job, being the operation of her cleaning company, Ms. Thompson

states: Currently, Ms. Adams reported that she has started her own cleaning company. She runs the company with her sisters and several part-time staff, and she performs a supervisor / management role which involves obtaining contracts, supervising staff, liaising with clients and performing bookkeeping and office work. She reported that she typically meets with staff and customers in the morning, travels to worksites and may perform some light cleaning In my opinion, Ms. Adams is capable of performing this work if she is primarily working in a managerial role (ie. sedentary office work) [88] Ms. Thompson's conclusions are consistent with the testimony of Ms. Adams and contradict the conclusions of Dr. Robert. Significantly, Ms. Thompson also found Ms. Adams' reporting of her disability to be consistent with her abilities, stating, at p. 9: Results of the Reliability testing (Appendix IV) suggest that there are no overt discrepancies between the evaluee's reported disability and the demonstrated ability during the functional testing. Ms. Thompson also testified that Ms. Adams' self reports were reliable. [89] Ms. Thompson had undertaken considerable testing of Ms. Adam's physical abilities in her Physical Capacity Evaluation, although Ms. Adams had failed to complete all testing after reporting the onset of pain or expectation of the same as the testing continued over time. Ms.

Thompson did not push Ms. Adams to complete all testing, which could cause more pain. [90] In her testimony, Ms. Thompson stated, "she dictates how she'll do it" and "she controls how and when she can work", when referencing Ms. Adams' limitations, which, the court concludes, is effectively an admission that Ms. Adams is not "competitively employable" as opined by Mr. McNeil. In her current role of managing her cleaning company, she is able to continue only because of the sedentary nature of her management duties and reliance upon family and friends. Analysis Findings of Fact [91] I conclude from all of the evidence that Ms. Adams has and will continue to suffer from chronic pain disorder, myofascial pain syndrome and to a lesser extent, more recently, cervicogenic headaches, all arising from the injuries suffered in the accident. Also, to a lesser extent, Ms. Adams has suffered in the past due to the injury to her right knee occasioned by the accident. [92] I find, based upon the medical evidence, and the circumstances of Ms. Adams, that the injuries claimed by Ms. Adams were all caused by the negligence of the defendant. No other cause for her injuries has been suggested by the defence and her injuries bear no relation to any prior conditions. Non-Pecuniary Damages for Pain and Suffering [93] A leading decision in the assessment of non-pecuniary damages is Stapley v. Hejslet,

2006 BCCA 34, which sets out at para. 46, the factors to be considered in such an assessment and has been followed and referred to on many occasions by judges of this court. [94] Stapley was recently referred to in Evans v. Keill, 2018 BCSC 1651, in which the court summarized the Stapley factors most significant to that case: [171] The most significant of the Stapley factors in this case are Ms. Evans' age; the severity and duration of the pain; the impairment of her physical abilities; her associated loss of lifestyle; and the impairment of her relationships. Ms. Evans is relatively young. She was 34 years old at the time of the accident and she was 39 years old at trial. She faces the prospect of a lifetime of chronic pain and associated functional limitations. One of the most significant impacts of her injuries has been the impact on her ability to do her job as a produce manager, which she enjoyed and which was a source of pride. [172] It is typical for courts to consider cases in which the plaintiff has suffered injuries similar in nature and duration to those of the plaintiff in the case at bar. Such cases act as a guideline, but should not be used to develop a "tariff" for injuries of a certain type: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637. Similar injuries may not have similar consequences for the injured person. [95] The factors referred to above are all

applicable to Ms. Adams. She "loved" her job, which she had held for ten years to the date of the accident. Ms. Adams was respected and well-liked by her co-workers and supervisors. Her pain and suffering has affected her marriage and has impaired her ability to care for her young son. She has suffered emotionally from her pain which in turn has led to depression and a realization that she must accept her pain will most likely always be present. She has had to rely on friends and family to be able to maintain an income. She has had to forego any physical activities with her family, travel and struggles to cook and clean her previously immaculate home of which she was most proud. She is generally exhausted towards the end of each day. [96] Ms. Adams has submitted that an appropriate award for non-pecuniary damages is in the range of $120,000, after referencing the comparable awards of our courts in Merko v. Plummer, 2016 BCSC 1403, Brundige v. Bolton, 2018 BCSC 1843 and Evans v. Keill. Awards in those cases ranged between $95,000 and $165,000, with considerable similarities to the circumstances of Ms. Adams. [97] The defence submits an appropriate award for non-pecuniary damages would be in the range of $50,000 to $80,000 and put forward the decisions of Spence v. Yellow Cab Company Ltd., 2019 BCSC 1540, Suri v. Johal, 2019 BCSC 703, Riley v. Ritsco, 2017 BCSC 925, Mothe v.

Silva, 2015 BCSC 140 and Dosangh v. Xie, 2017 BCSC 1937. I note that the award for non-pecuniary damages in Riley was increased by the Court of Appeal to $85,000 from the $65,000, awarded by the trial judge: 2018 BCCA 366. As such, the awards in those cases ranged between $40,000 and $85,000. [98] Comparing the injuries in the above cases and in particular the circumstances of the parties and the effect of the injuries on the overall wellbeing of the plaintiff, I find those awards cited by Ms. Adams to be more comparable and in some cases understated. [99] Considering all factors in Stapley, awards in all of the above cases and the circumstances of Ms. Adams, an award for non-pecuniary damages of $125,000, is fair and reasonable to both the plaintiff and the defendants. Past Income Loss [100] At the time of the accident, Ms. Adams was happily and successfully employed as a security guard at the casino. She intended to continue to stay in that position until retirement. [101] After taking two weeks away from work following the accident, Ms. Adams returned to work for approximately three months, but relied on pain medicine to be able to complete her shifts. She worked erratically for the balance of 2014 and continued to work with pain through most of 2015, due to her work having aggravated her pain. It could not be substantiated that Ms. Adams exaggerated her injuries as, due to

financial circumstances at home and continuing to work through pain, she managed to continue to work at the casino (with no substantial accommodations offered or available), after which, due to her pain and the effect of her injuries on being able to cope at work and continue her responsibilities at home, she reluctantly left her position at the casino. I accept as well, that her work continued to aggravate her pain throughout that period of time, but she was determined to try to work through the pain. [102] The last year during which Ms. Adams worked full time at the casino was 2011, when she earned $36,419 solely from her employment. Due to the birth of her son in 2012, Ms. Adams was off work for up to eight months, during each of 2012 and 2013, due to her pregnancy and the birth of her son. She submits, based upon the evidence just referenced by me, that her income from 2011 should be considered her base, or minimum, likely income going forward from 2011, rounded to $37,000, and that her income, but for the accident, would have increased, possibly minimally, in subsequent years, should she have been able to work full time. Assigning a likely annual income from the casino at $37,000 (plus benefits) from February 2014 (the date of the accident) to December 9, 2019, the commencement of trial would amount to a total income of $214,600, from the casino during that period of time.

I accept that, but for the accident, Ms. Adams would have earned that amount up to the date of trial, which is a conservative estimate in that she would likely have received increases in her hourly rate during that period of time. [103] After accounting for income received by Ms. Adams between the date of the accident and the date of trial, less amounts received from employment and net business income from the cleaning business, and benefits she received and after subtracting a 15 percent income tax rate, the plaintiff seeks a net income loss of $110,000. [104] The defence submits that as a result of the accident, in 2018 and 2019, Ms. Adams received an increase in income through her cleaning business. In making that submission, the defence has referred to revenue from the cleaning business as opposed to profits. In fact, the only manner in which one could calculate a profit in the cleaning business, since Ms. Adams commenced the same, would be to acknowledge that she paid no wages to her family and friends who assisted her in carrying out the business. Ms. Adams did not pay wages to her family and friends. She mitigated her loss by obtaining the cooperation of her family members to work for nothing, so as to assist Ms. Adams. Should the defendants obtain the benefit of Ms. Adams paying nothing to her family for helping her through a difficult financial situation? I think

not. [105] The defence submits there are several "non-MVA related events" which would have caused the plaintiff to miss work after the accident, including Ms. Adams' multiple surgeries. Based on a detailed calculation of the plaintiff's income earned since the accident, the defence submits that the past income loss amounts to at most $59,181. [106] The defence in this case has submitted that the surgeries Ms. Adams has undergone since the accident have caused her to miss time from work which was not related to the accident and that her pre-existing conditions exacerbated or contributed to her pain and suffering. [107] Ms. Adams' evidence was that she would not have undergone a breast reduction, absent the car accident, and she argues there is nothing to contradict that before the court. She says the other surgeries took place during the period of time she was already on disability leave, due to injuries she sustained in the car accident, and that it is to her credit that she made use of her disability leave to try every avenue to recover. [108] The plaintiff's lawyer says she took no time off after the accident due to the non-accident related surgeries. However, on reflection, I would say that considering the nature of her injuries and the type of surgeries she had, in particular, the hysterectomy, on a balance of probabilities, she likely took approximately four weeks off

after the accident, due to surgeries unrelated to the accident. I conclude she would have taken this time off regardless of the accident and it should be subtracted from her claim. [109] Considering all of the above, I accept the submission of Ms. Adams that a conservative estimate of her loss of income to the date of trial is $110,000. From, that amount, I would deduct four weeks' income for recovery time following her hysterectomy surgery, which I calculate at $21 per hour or $168 per day for 20 days or $3360, leaving a net loss of income to date of $106,640. Future Income Loss and Loss of Future Income Earning Capacity [110] Based upon the reports and testimony of Mr. McNeil and Kim Thompson, the court is satisfied that Ms. Adams is no longer competitively employable. She is currently 45 years of age and continues to need to work for financial reasons into the foreseeable future. Based upon Ms. Adams' evidence of her work history with the casino and her determined attempts to return to her former employment since the accident, she is motivated to work. [111] In May of 2018, Ms. Adams incorporated Maid to Shine Cleaning Services Inc., and in July of 2018, she purchased the assets, including the client list, for $50,000, and continues to carry on that business. She manages the business on a laptop computer and telephone from her home and is able to spend only minimal time at

work locations due to her disabilities. [112] Upon purchasing the business, there was one major client, Silver Ice, and to service that client in particular, at first she retained employees of the vendor of the business and also relied upon her sisters and direct family to work for no pay. Silver Ice is no longer a client and was by far the largest single client in her business. As well, the employees she retained from the previous owner are no longer on her payroll. Ms. Adams testified to seeking new clients and the efforts she has made in that respect, however, the likelihood of her being able to replace the amount of business she had with Silver Ice, is slim. [113] In the first year of its operation, Maid to Shine had revenues of $48,295 and a net profit of $3,211, achieved in part by the fact that she did not pay family members who worked in the company. The future prospects of the business, based upon revenues and profit from the first eighteen months of the company's operations, appear to be poor and unlikely if she continues to generate a profit at any time in the near future. [114] In addition, during 2018, Ms. Adams earned $5,768 from the casino until she left their employment in December 2018. [115] The law applicable to clams for loss of future earning capacity is not controversial. Ms. Adams has established that her earning capacity has been impaired by her injuries

and so the question becomes how to assess compensation for the resulting financial harm. The appropriate means of assessing future earning capacity varies in all cases, including in the decision of Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), which has been followed and relied upon in almost all decisions of our courts dealing with loss of future income. [116] There are two means of assessing loss of future income, i.e. under the "earnings approach" or the "capital asset approach". The "earnings approach" is more appropriate where the loss may be calculable, which is not the case before this court. The "capital asset approach", as discussed in Perren v. Lalari, 2010 BCCA 140, is the more applicable approach in cases where an income loss over time is not readily measurable. I am advised that the parties in this case have agreed that I should assess under the capital asset approach. [117] In Brown v. Golaiy, Finch J. (as he then was) discussed at p. 4 the considerations to be referred to when applying the capital asset approach: The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether: 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. [118] In Ms. Adams' case, all four factors discussed by Justice Finch are applicable. The task at hand is how best to assess the value of her income earning capacity? Income from Maid to Clean is very uncertain and may well not be available to her as her sisters and family will no doubt need compensation for their efforts, which Ms. Adams will likely not be able to provide. The revenue from her first year of operation is no longer available, and to summarize her evidence, she is struggling to find profitable work in a competitive market where she is relatively unknown. [119] I conclude that any income Ms. Adams is able to earn in the future will be nominal in light of her injuries. [120] Ms. Adams seeks $300,000 in damages based upon the capital asset approach. Her calculations are based upon an annual income loss of $25,000 per year until she turns 67 years of age. [121] Mr. Benning has provided future income loss multipliers in his report of September 2019, which takes into account many contingencies including part-time work, no longer participating in the

work force, age, survival contingency and more as listed in Table 1 of his report. A future annual loss of $25,000 to age 65, based upon Mr. Benning's calculation method, which has been relied upon in these courts on many occasions, would result in a loss of $305,475 calculated as follows [($25,000 / 1,000) = $25 x 12,219 = $305,475]. [122] The defendants submit, erroneously, that Ms. Adams is earning more income now than she was prior to the accident. The calculations put forward by the defence to attempt to justify a greater income is based upon a misinterpretation of the evidence. Contrary to the written submissions of the defence, Ms. Adams does not receive income from her business of $7,000 to $8,000 per month, does not work 50-60 hours per week and does not receive approximately $5,000 in revenue each month from commercial clients. Such assertions are baseless considering revenue, which the defence seems to have confused with income, was $48,000 for her first year of operating and she has lost her major client. The evidence simply does not support the defence case and, in many cases in their submissions, do not state the source of their figures. [123] The calculations based upon income of $25,000 per year are conservative but adequately reflect contingencies referenced in Mr. Benning's report and testimony. As such, I agree that an award of $300,000 for loss of future

earning capacity is reasonable in these circumstances. Special Damages [124] The plaintiff seeks special damages of $1,060, which is the net amount of expenses listed in Exhibit 3, Tab 4, net of the cost of a private hospital room, and does not include amounts she has expended for Advil, chiropractic treatment, rehabilitation at CBI and is a most reasonable amount, which I so award. Loss of Housekeeping Capacity (Past and Future) [125] Ms. Adams claims $20,000 for past loss of housekeeping capacity and $80,000 for future loss, both figures being unsupported on the evidence and are put forward as a rough estimate. [126] Dr. Finlayson has opined that Ms. Adams would have to hire housekeeping assistance without the family support she has had to date and, even with the family support, her home is not kept to the standard Ms. Adams achieved prior to the accident. Authorities support awards for loss of housekeeping capacity when family members have had to gratuitously work for a plaintiff, but due to their circumstances, no longer will be able to provide support over time. There is value to the work done by family members. (see McTavish v. MacGillivray, 2000 BCCA 164 at para. 63 and Dykeman v. Porohowski, 2010 BCCA 36 at para. 28) [127] Ms. Adams claims $20,000 for the past six years since the accident for the value of housekeeping costs performed by her family. At $3,500 per year,

or $290 per month, that estimate is likely on the high side, especially since other family members will have some responsibility to care for themselves. [128] Also, into the future, the housekeeping work required will be less as her children, save for Ms. Adams' young son, will likely move elsewhere. [129] Any amount in this respect is a rough estimate. I find a reasonable amount for past housekeeping expenses to be $250 per month, which translates to $18,000 past expenses. [130] With respect to future housekeeping expenses, I find a reasonable estimate to be $65,000, which I so award. Cost of Future Care [131] Mr. McNeil opined in detail in his report on the likely extent of costs for future care. The nature of those expenses have been detailed previously in these reasons. The estimated costs of those items of future care are detailed by Mr. McNeil at pages 14 through 18 of his report. [132] In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at p. 78, the test for future care awards was succinctly stated by McLachlin J. (as she then was) as: The test for determining the appropriate award under the heading of cost of future care, it may be inferred, is an objective one based on medical evidence. [133] The opinions of Mr. McNeil and Dr. Finlayson provide evidence of the reasonably necessary care required to promote the physical and emotional support for Ms. Adams. I accept their

opinions, which have not been contradicted or challenged in any meaningful way. [134] Mr. Benning has determined the net present value of the items of cost based upon Ms. Adams reaching 85 years of age, i.e. her life expectancy, to be $248,402. Those costs are all reasonably necessary and medically recommended. Summary [135] In summary, I make the following awards: Non-Pecuniary Damages $125,000 Past Income Loss $106,640 Future Income Loss $300,000 Past Housekeeping Loss $18,000 Future Housekeeping Loss $65,000 Cost of Future Care $248,402 Special Damages $1,060 Total $864,102 Costs [136] I suspect there are factors of which I am not aware, which will be relevant to an award of costs. As matters stand on concluding these reasons, it would appear, based upon submissions made by the parties, that Ms. Adams has been "substantially successful" in pursuing her claim. [137] If the parties cannot come to an agreement on costs, I will hear submissions on a date to be arranged through Supreme Court Scheduling in New Westminster. "Jenkins J."