Barre v. Dupasquier

2020 BCSC 524 Barre v. Dupasquier

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Barre v. Dupasquier, 2020 BCSC 524 Date: 20200403 Docket: M197918 Registry: New Westminster Between: Michelle Rene Barre Plaintiff And Jo Dupasquier Defendant Before: The Honourable Madam Justice Duncan Reasons for Judgment Counsel for the Plaintiff: M. Sandor Counsel for the Defendant: M. Somers S. Somers Place and Dates of Trial: New Westminster, B.C. February 24-28, 2020 Place and Date of Judgment: New Westminster, B.C. April 3, 2020 Introduction [1] The plaintiff, Michelle Barre, was in a motor vehicle collision on January 18, 2016. Liability has been admitted. This trial concerned the plaintiff's claim for damages. [2] The plaintiff gave evidence, as did her husband, Jake Anzulovich; her mother, Susan Barre; a kinesiologist/fitness trainer, Breanne Davie; her family doctor, Dr. Latti; and a physiatrist, Dr. O'Connor. [3] The defendant called no evidence. The Plaintiff's Background [4] The plaintiff is 33 years of age. She trained as a hairdresser after completing high school. She has a certificate from a hairdressing school and as well she is a licensed hairdresser. [5] Before the accident the plaintiff was in good health. While she was not an avid exerciser, she enjoyed walks with her fiancé and their dog as well as an active social life. The two married on July 30, 2016, about six and one-half months after the

accident. [6] Mr. Anzulovich described his wife prior to the accident as bubbly, goal-driven and outgoing. She was passionate about her career as a hairdresser. Both of them planned to work and build their careers. They also planned to have children as soon as they were married. The plaintiff's hours of work were flexible and both Mr. Anzulovich's mother and the plaintiff's mother were willing and able to provide childcare. [7] On occasion, prior to the accident, the plaintiff went for a massage or chiropractic treatment. She said Mr. Anzulovich encouraged her to use the benefits package from his employment, although he did not specifically recall that. The plaintiff said she had occasional discomfort in her right arm or her back from standing all day. She never sought medical attention for those issues, nor did she take any medication. She did not have pain in the left side of her neck, back or shoulders, nor did she have headaches. She did not miss work or reduce her hours because of physical ailments before the accident. Neither Mr. Anzulovich nor the plaintiff's mother observed the plaintiff with any physical limitations. [8] The plaintiff went for counselling when she was 12 to deal with the divorce of her parents. Other than that, she had never been diagnosed with low mood, anxiety or depression prior to the accident. Her mother and her husband did not notice any

difficulties in that regard either. [9] Prior to the accident, the plaintiff did the vast majority of the housework in the home she shared with Mr. Anzulovich. He estimated that she did as much as 90% of the housework. He did not observe the plaintiff to have any difficulties with housework before the accident. The Plaintiff's Hairdressing Business [10] The plaintiff has rented a chair at Tuscany Salon in Pitt Meadows for almost 11 years. The amount of money she pays for the rental has varied over the years, depending on how many days per week she works. The plaintiff enjoys the social aspect of her business, the idea of working for herself and building a business and the artistic side of hairdressing. [11] Before the accident the plaintiff worked between 8 and 12 hours per day, four to five days per week, sometimes more and sometimes less. The plaintiff relied on word of mouth, newspaper ads and social media to build her client base. She expected to grow her client base and make more money as she gained more clients and more experience, which would enable her to charge higher rates. She was willing to work flexible hours and on weekends to accommodate her clients. [12] The plaintiff provided a range of services to clients, including colour treatment, foil treatment, haircuts, blowout, extensions, children's cuts as well as men's and women's cuts. She provided hair services for

weddings and graduations, which meant the summer months were generally busy for her. Prior to the accident about half her work was colouring hair and the other half was cuts, blowouts and "up dos" for weddings and other occasions. The plaintiff also kept her work area clean by sweeping it up, cleaning the mirror and wiping down her work trolley. Occasionally she would help fold the salon's laundry. [13] The physical aspect of colouring hair involves sectioning it out and applying colour. The plaintiff uses both arms for the procedure. Foil is similar to colouring, with sections of hair partitioned off for the application of a lightening solution before being wrapped in a foil. The plaintiff estimated she would use between 20 and 50 foils on a person's head. Blowouts are also labour intensive, involving sectioning out hair and using both hands to blow dry and brush. The plaintiff uses her left arm to blow dry. [14] The plaintiff said that men's cuts are harder because their hair is shorter and her arms are up for the whole procedure. She also uses clippers, and she has to be precise with those. The Collision [15] The plaintiff was driving home from work, eastbound on 124th Street in Maple Ridge, at the intersection with Harris Road. As she proceeded through a green light, she saw a car out of the corner of her eye. The car struck her vehicle on the driver's side in the middle of

the intersection. The plaintiff felt jolted and thought she hit her left side and head against the inside of her car. She felt like she was in a bit of shock, as she had never been in an accident before. A police officer who was nearby helped her and the other driver move their vehicles out of the intersection. The plaintiff exchanged information with the other driver and then proceeded home. [16] The plaintiff called ICBC to report the accident when she got home. She was tired and confused about what had happened and what to do next. She had a bit of a headache and took some pain medication. Over the following two weeks she felt worse, had headaches and pain in her left neck and shoulder area as well as on and off lower back pain. The plaintiff was anxious about driving and found it difficult to do a shoulder check. After the Collision [17] The plaintiff saw her doctor, Dr. Latti, on January 27, which was the earliest she could get an appointment. She reported pain in her left neck and shoulder, headaches, disturbed sleep and anxiety about driving. The plaintiff had difficulties at work because she had to have her arms up, almost in a rowing motion. Dr. Latti sent her for physiotherapy and chiropractic and massage treatments and recommended she use heat on the affected areas and take Ibuprofen. [18] The plaintiff followed her doctor's advice and went to a physiotherapy clinic

the following day. She went back to the doctor in mid-February and reported consistent left neck and shoulder pain, diminished sleep, headaches, anxiety while driving and intermittent low back pain. Dr. Latti recommended that the plaintiff continue with the therapies she had prescribed. [19] The plaintiff said the physiotherapist used heat, a laser and a Tens machine on her left neck and shoulder and sometimes her lower back. She was told to do light neck stretches and use heat and Ibuprofen and she followed those instructions. [20] By the fall of 2016, the plaintiff was frustrated with her recovery and discussed her concerns with Dr. Latti in October. The plaintiff was still not sleeping and had the same pain symptoms. The earlier prescribed therapy was not helping. Dr. Latti sent her for active rehabilitation, which was focussed more on fitness and stretching, and suggested some counselling for the plaintiff's low mood. [21] Mr. Anzulovich observed his wife to be more tired and distracted in this timeframe compared to how she was pre-accident. She was worried about work, trying to recover and do things at home. She seemed bogged down. Her sleep was not good. He described her as morose. [22] The plaintiff went to active rehabilitation 44 times over the course of about 14 months. Sessions would involve a short warm up on a bike or treadmill, then work with a fitness band,

pushing and pulling exercises, shoulder shrugs, rowing and planks. The plaintiff also did the exercises at home a couple of times per week. Mr. Anzulovich said he observed his wife to be doing the exercises at home. [23] Despite the change in the type of rehabilitation she was pursuing, the plaintiff was still in pain and not sleeping. The plaintiff talked to her active rehabilitation therapist about her lack of progress about halfway through her treatments. He changed things around but it did not result in relief from symptoms. [24] The plaintiff tried dry needling, which is similar to acupuncture, but did not gain any benefit from it. Chiropractic treatments made her feel temporarily better but her pain would return. In addition, the plaintiff went to counselling on four occasions between late 2016 and spring 2017. She was emotionally frustrated. Her plan to start a family right away had been thwarted by the accident because she did not feel in the right head space. There were money issues with her hairdressing business and she had to drop some clients, which she found difficult. The counselling helped a little bit but she still felt emotional. She continued to work part-time and for shorter days with fewer clients than she would normally schedule. The Plaintiff's Pregnancy [25] The plaintiff saw Dr. O'Connor, a physiatrist, in January 2018 and then again in October 2019. She

received his first report and recommendations a few months after the January 2018 appointment. By then, she was pregnant and wanted assistance with adapting recommended exercises for her pregnancy. She asked ICBC for help but she did not receive assistance until September, when she was about to give birth. I infer that the plaintiff likely did not do most of the prescribed exercises with regularity in this timeframe or until after her son had surgery in May 2019. [26] The plaintiff worked part-time until the end of August 2018, then took time off for the birth of her child. She planned to go back to work after a few months, because she could not collect Employment Insurance. She tried to return to work in January 2019 on a part-time basis. She still had left side neck and shoulder pain, she was still not sleeping well and was experiencing headaches. The Plaintiff's Condition after her Son's Birth [27] Before the accident the plaintiff slept eight hours per night without difficulty. After the accident but before her son's birth the plaintiff slept four or five hours per night with a lot of tossing and turning. After her son was born the plaintiff said she would get about three hours per night, depending on how he was sleeping. [28] Mr. Anzulovich described the plaintiff struggling with fatigue and pain after her son's birth. He also said she shouldered the burden of getting

their son medical care for his breathing problem, which turned out to be an issue requiring surgery. Mr. Anzulovich said the plaintiff advocated hard for their son's medical needs. [29] The plaintiff worked part-time for eight weeks in early 2019 and then could not continue. Her son's heart surgery took place on May 6, 2019. After the surgery, the plaintiff and her husband hired a sleep trainer and their son's sleep improved within a month. The plaintiff's sleep also improved to a degree. She was back to sleeping about four or five hours per night. [30] The plaintiff had some difficulties carrying her son around, as he was a big baby. It was difficult for her to breastfeed him on her left side because she had to lean over and hold him. The Plaintiff's Emotional State [31] The plaintiff went for counselling around the time of her son's surgery. She was anxious and depressed. She agreed that she told the post-natal counsellor, Lisa Fierro, that she was anxious about her husband's job changes, but did not recall reporting a lifelong history of anxiety which worsened with pregnancy. Dr. Latti also recorded that the plaintiff used the word "anxiety" about herself at a visit in the post-natal context. [32] Dr. Latti has prescribed an anti-depressant, which the plaintiff feels a slight benefit from although it has not helped with sleep or with the physical symptoms. Second Attempted

Return to Work [33] The plaintiff returned to work again in September 2019. She was still fatigued, with left side neck and shoulder pain. She is still trying to figure out how to do a good job and not lose her business. She finds that working, doing laundry and any type of vigorous cleaning aggravates her injuries. She continues to work part-time, two days per week. [34] The plaintiff's mother, Susan Barre, looks after the baby one day per week. She does some housework as well to ease the pressure on her daughter. [35] When the plaintiff was pregnant, she hired a cleaning lady to vacuum, mop and do other heavy work at a rate of $50 for a two-hour session. The plaintiff found that helpful and believes she would benefit from that help now. [36] Mr. Anzulovich helps with some of the more labour-intensive housework. He felt that having someone come in and clean the house contributed to a more relaxed and pleasant atmosphere. [37] Four years post-accident, the plaintiff feels she is still struggling. Her pain and sleep issues persist. She cannot accommodate all of her clients and her business is on the verge of failing. She has no training apart from hairdressing, although she worked for a time as a receptionist at another salon. The plaintiff has abandoned the idea of having a second child. [38] Mr. Anzulovich says his wife is withdrawn and less social. She is concerned about her

diminished career prospects and her worries have created stress in their marriage. Cross-examination of the Plaintiff [39] The plaintiff acknowledged on cross-examination that she did not report her accident symptoms to Dr. Latti at every appointment in the 18 months prior to trial. She said she was there for specific reasons and Dr. Latti was busy and in any event, her symptoms had not changed. She still had pain, headaches and sleep deprivation. The plaintiff agreed that she reported to Dr. Latti in January of this year that her mood was stable, five months after her return to work; however, she had an appointment with Dr. Latti after the trial concluded to review the dosage of her anti-depressants to see if her situation could be improved. [40] In Edmondson v. Payer, 2011 BCSC 118, Mr. Justice Smith observed: [36] While the content of a clinical record may be evidence for some purposes, the absence of a record is not, in itself, evidence of anything. For example, the absence of reference to a symptom in a doctor's notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom. At most, it indicates only that it was not the focus of discussion on that occasion. [37] The same applies to a complete absence of a clinical record. Except in severe or catastrophic cases, the injury at issue is not the only thing of

consequence in the plaintiff's life. There certainly may be cases where a plaintiff's description of his or her symptoms is clearly inconsistent with a failure to seek medical attention, permitting the court to draw adverse conclusions about the plaintiff's credibility. But a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed, particularly if the plaintiff has no reason to expect the doctors will be able to offer any new or different treatment. Similarly, a plaintiff who seeks medical attention for unrelated conditions is not obliged to recount the history of the accident and resulting injury to a doctor who is not being asked to treat that injury and has no reason to be interested in it. [41] I agree with that analysis and consequently I place no significance on the plaintiff's failure to continuously document her post-accident condition with her family doctor. [42] Counsel for the defendant suggested that the plaintiff told Ms. Fierro that she had struggled her whole life with anxiety and depression, similar to a comment she made to Dr. Latti. The plaintiff did not recall making the comment to Ms. Fierro. [43] Counsel for the defendant maintains the plaintiff's comments are an admission against interest and demonstrate that she is a poor historian with reliability issues; however,

I observe that the comment to Ms. Fierro was made in the context of the plaintiff seeking help for anxiety about her baby's health and impending surgery. I think it fair to say that the plaintiff had a great deal to worry about at that point. Even if the plaintiff uttered the comment to Ms. Fierro, the context in which it was made strips it of any significant evidentiary value. [44] Counsel for the defendant suggests that the plaintiff is unreliable because Dr. O'Connor recorded her as saying, at their second appointment in October 2019, that she had not been doing the recommended exercises. The plaintiff insisted that she had been doing the exercises and testified that she showed Dr. O'Connor at the appointment what she had been doing. [45] Counsel for the defendant did not ask Dr. O'Connor if he had required the plaintiff at the second appointment to demonstrate what exercises she had been doing, even though the plaintiff testified first. In fairness, Dr. O'Connor should have been asked about this, because as of early February of this year the plaintiff was capable of doing the exercises the doctor had prescribed. [46] Breanne Davie, a kinesiologist who was called as a fact witness, observed the plaintiff complete a series of exercises which included 25 shoulder shrugs while holding 20 pounds of weight; 25 rows with a 20-pound bar bell; a front plank on her hands and toes for

60 seconds; and a right side plank. The plaintiff could not do a left side plank but she was able to do 20 push-ups on her toes and hands. These were the exercises recommended by Dr. O'Connor. [47] Notwithstanding that the plaintiff can do the exercises, I accept her evidence that she still has difficulties with her left neck and shoulder. The plaintiff has done the conditioning work prescribed by Dr. O'Connor, albeit with a gap during her pregnancy and her recovery. Dr. Russell O'Connor [48] Dr. O'Connor saw the plaintiff on two occasions: January 17, 2018 and October 1, 2019. In his first report he noted that she had some neck and back-type discomfort from having her arms out in front of her for long periods of time during the day. The doctor clarified in his evidence at trial that this was confined to the right side. [49] Dr. O'Connor diagnosed musculoligamentous strain to the plaintiff's neck and likely a lateral compression-type mechanism of injury to the C3-4 facet joint on the left side. He could not find any evidence of pinching or radiculopathy. He noted slight atrophy of the left trapezius and suspected a disuse-type atrophy. He recommended some follow-up examination to ensure there was no neurological injury. He prescribed five exercises: 1. shoulder shrug, starting with no weight and building up to 20 pounds; 2. bent-over row, starting with no weight and building up

to 20 pounds; 3. push-up, starting on the wall and progressing to the level of a counter, then a couch, and then the ground; 4. four sets of left, right and front planks with the goal of holding each for a minute; 5. four sets of 25-30 repetitions of neck flexion, side flexion and extension, focusing on keeping her chin tucked in. [50] Dr. O'Connor also recorded the plaintiff's complaints of anxiety and disturbed sleep, both of which were major factors that tend to perpetuate chronic pain. He said there was a 15-20% risk she would be left with chronic symptoms indefinitely and a 3-5% chance she would be left with more permanent symptoms that are more disabling and would limit her and prevent her being able to return to four days a week or full-time hairdressing, although he though the latter scenario was unlikely. Dr. O'Connor emphasized that the plaintiff should become more active, recognizing that in light of the chronicity of her symptoms and her ongoing/residual weakness despite a year of active rehabilitation, you cannot exercise everybody's pain or discomfort away. [51] In his second report, the doctor noted that in addition to the previously reported symptoms the plaintiff said she was now suffering from headaches. Dr. O'Connor said that pain at the C3-4 level is a common cause of headaches. The plaintiff's sleep disturbance and added workload and stressors at work were

all likely contributing factors to the headaches. [52] Dr. O'Connor was still of the view that the plaintiff would be capable of returning to work as a hairdresser part-time, but with the added demands of motherhood and the extra work around the house, it would make it more difficult for her to work the same number of clients. He suggested help around the home and reconditioning to her neck and shoulder girdle was required. He opined that with further work in this regard, more likely than not her symptoms would improve further and settle to the point where they bother her either intermittently or mildly. [53] Dr. O'Connor also said it was possible that even despite regular exercise and building up the strength and conditioning of her neck and upper back muscles she would still be left with mild pain. He estimated the risk to be 30-40%, given that her symptoms have persisted over several years. Dr. O'Connor still recommended strength and conditioning to improve symptoms. He felt her description of pain as a 7/10 was flavoured by her mood and anxiety as well as deconditioning. [54] Dr. O'Connor made a note in his second report of myofascial pain. He explained in evidence that this is soft tissue pain arising from the irritable area of a muscle which develops into a knot, or trigger point, that is tender to the touch. The plaintiff's trigger point is in the trio of muscles that

start at the base of the skull and connect into the shoulder and shoulder blades, on the left side. Dr. Manisha Latti [55] The plaintiff had been Dr. Latti's patient for 11 months prior to the accident. Dr. Latti treated her on numerous occasions for complaints related to the accident, both physical and emotional. She did not diagnose the plaintiff with depression until after her son was born, but consistently noted the plaintiff had "low mood" and prescribed both medication and counselling at several junctures. [56] In Dr. Latti's opinion, the plaintiff had no pre-existing conditions or any previous neck injuries or problems prior to the accident, and that the accident caused the neck pain. On cross-examination, she agreed that her opinion might have been more helpful if she had known of the plaintiff's pre-accident neck and low-back pain and her visits to a chiropractor or for massage therapy, which the plaintiff had reported to Dr. O'Connor. [57] Dr. Latti also agreed that she recorded the plaintiff's comment on March 18, 2019 that she had been anxious since pregnancy, and "all my life"; however, I am satisfied this referred to the plaintiff's early teen years rather than a continuing state of anxiety. Failure to Mitigate [58] The defendant argues the plaintiff has failed to mitigate. The defendant must prove this on a balance of probabilities and do more than show that the

plaintiff failed to engage in treatment that could or might have been beneficial: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144, at para. 56. [59] The plaintiff attended for dozens of sessions of physiotherapy and other types of therapy after the accident to treat her condition. She did everything that was suggested or prescribed to her. I am mindful of the fact that there was some downtime when the plaintiff was pregnant and in the following months while she was dealing with her recovery and her baby's medical condition, but shortly before trial the plaintiff was capable of doing the exercises that Dr. O'Connor had prescribed to her. It is difficult to envision what more she could have done. [60] The defendant has not met her burden in this case. Damages Non-pecuniary damages [61] The assessment of non-pecuniary damages takes into account the well-established factors from Stapley v. Hejslet, 2006 BCCA 34 at para.

46. An award under this head is intended to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. [62] Factors commonly taken into account include the age of the plaintiff, the nature of the injury, the severity and duration of pain, the extent of any disability, the extent of emotional suffering and impairments to the plaintiff's life, including impairments to family, marital and social relationships, physical and mental abilities and loss of lifestyle. [63] Each plaintiff must be assessed individually, though reference to previous similar cases can be helpful. A plaintiff's stoicism is a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, 2005 BCCA 54. [64] The plaintiff seeks an award of $90,000, based on the following authorities: Anderson v. Gagnon, 2018 BCSC 98 Duda v. Sekhon, 2015 BCSC 2393 Tang v. Duong, 2020 BCSC 85 [65] The defendant suggests a more modest award in the range of $45,000-$50,000, although that takes into account her failure to mitigate, which I have rejected. The defendant relies on: Young v. Shao, 2018 BCSC 2017 Matharu v. Gill, 2016 BCSC 624 Zaluski v. Verth, 2015 BCSC 1902 Hay v. Benzer, 2014 BCSC 1522 [66] I am satisfied the plaintiff suffered injury to her left neck and upper back/shoulder and continues to endure pain from the injury. She has less restful sleep than before

the accident and is taking prescription medication to deal with issues of low mood which began after the accident. Apart from some counselling when she was in her early teens, the plaintiff had not sought help for emotional issues until after the accident. The accident interfered with her sleep and her ability to work as many hours as before. I find it was at the very least a contributing cause to the plaintiff's need for counselling and medication. [67] The plaintiff's joy as a new mother was dulled as a result of her injuries. She had difficulty carrying her baby and with breastfeeding on the left side, due to pain from leaning over. She was unable to participate in mother-baby activities outside the home and felt guilty as a result. She has given up on the plan she had with her husband to have more children. The plaintiff is less social now than before the accident, particularly given that much of her social life before the accident revolved around activities related to the hair salon, where she is spending less time now. I accept that her business was very important to her, economically and socially. [68] In all the circumstances, I am satisfied that an award of $90,000 for non-pecuniary damages is appropriate in this case. While the plaintiff makes a separate claim for loss of past and future homemaking capacity, I have considered that in arriving at the non-pecuniary

award. Past Loss of Earning Capacity [69] In Sendher v. Wong, 2014 BCSC 140, Verhoeven J. summarized the principles respecting the assessment of an award for past loss of earning capacity: [158] The award for past loss of earning capacity is based on the value of the work that the plaintiff would have performed but for her accident injuries. The award is properly characterized as a loss of earning capacity: Bradley v. Bath, 2010 BCCA 10 at paras. 31-32; Lines v. W & D Logging Co. Ltd., 2009 BCCA 106, at para. 153; X. v. Y., 2011 BCSC 944, at para. 185. [159] The plaintiff need not establish the actual loss of earnings on a balance of probabilities. What would have happened prior to the trial but for the accident injuries is hypothetical, just the same as what may happen in the future, after the trial. [160] In Smith v. Knudsen, 2004 BCCA 613, at para. 29, Rowles J.A. stated: What would have happened in the past but for the injury is no more "knowable" than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events. [161] However the plaintiff must establish on a balance of probabilities that there is a causal connection between the accident injuries and the pecuniary loss claimed; mere speculation is

insufficient: Smith v. Knudsen para. 36; Athey, at para. 27; Perren v. Lalari, 2010 BCCA 140, at para. 32; Falati v. Smith, 2010 BCSC 465, at para. 41, aff'd 2011 BCCA 45. [162] Just as in the case of the assessment of future loss of earning capacity, in the case of past loss of earning capacity, if the plaintiff establishes a real and substantial likelihood of the pecuniary loss asserted, the assessment of damages to be awarded as compensation depends upon an assessment of the degree of likelihood of the particular loss, combined with an assessment of the value of the loss. [163] In cases where it is appropriate to proceed with an assessment of the value of the loss, s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, stipulates that a person who suffers loss of income is only entitled to recover the net income amount as damages: X. v. Y., at para. 187; Lines, at paras. 152-186. [70] The plaintiff's tax returns for the years 2013 through 2018 were in evidence. She testified that she claimed chair rental and phone expenses against her gross business income, leaving the following as net income: 2013: $11,791 (gross $28,510) 2014: $11,784 (gross $26,313) 2015: $15,668 (gross business earnings of $18,266 plus T4 earnings of $9,716 for a total of $27,982) 2016 (year of accident): $11,483 (gross $22,716) 2017: the plaintiff's gross income was $9,551. She neglected to claim

any business expenses this year, but testified her expenses were $7,200 for chair rental and $1,260 for her phone ($8,460) leaving her with a net income of $1,091 2018: net income $10,568 (gross $23,763) [71] Counsel for the plaintiff submits it is fair to take her 2015 net income as the benchmark against which to measure her past income loss. By that measure, the plaintiff would have netted $62,672 from 2016 to the end of 2019, but actually netted only $23,141, leaving a loss of $42,142. [72] Counsel for the defendant maintains that her income stream to the date of trial was consistent and she really only missed four months of work due to the accident. He notes that the plaintiff took about five months off work after her son's birth, which was not attributable to the accident. Overall, the defendant suggests that $3,000 would be fair compensation for the plaintiff's lost income from the time of the accident until the time of trial. [73] I agree with counsel for the defendant that some accommodation has to be made for the time the plaintiff took off after her son's birth, which was prolonged by his surgery. I do not agree that her earnings were more or less the same after the accident, apart from taking time off for his birth. I am satisfied that but for the accident the plaintiff would have continued earning about the same amount of money from 2016 to the date of trial as she

did in 2015 by returning to work full time while her mother and mother-in-law provided childcare for her. [74] Adjusting the plaintiff's calculation of a $42,142 loss for factors related to time away from work for childbirth and her baby's surgery, and taking into account a 10% marginal tax rate, I assess her past loss of earning capacity as a net amount of $25,000. Loss of Earning Capacity [75] In Tisalona v. Easton, 2017 BCCA 272, the Court of Appeal summarized the principles applicable to assessing damages for a loss of earning capacity: [47] To establish an entitlement to damages for loss of earning capacity, a plaintiff must show a real and substantial possibility of a future event leading to an income loss by reason of the injuries: Perrin v. Lalari, 2010 BCCA 140 at para.

32. What this means is that "any employment said to have been lost to the plaintiff by reason of the injury must be shown to be realistic, having regard for what the plaintiff's circumstances would have been absent the injury": Graydon v. Harris, 2014 BCCA 412 at para. 27. [48] The plaintiff must show that it is a realistic possibility she will be less able to compete in the marketplace: Kim v. Morier, 2014 BCCA 63 at para.

8. The possibility must not be mere speculation: Grewal v. Naumann, 2017 BCCA 158 at para.

48. An inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss: Perrin at para. 32. [76] The value of the future loss is assessed by reference to the principles in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), in which Finch J. (as he then was) stated: [8] 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. [77] There are two possible approaches to assessing loss of future earning capacity: the earnings approach (Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260) and the capital asset approach (Brown v. Golaiy). The application of one over the other depends on whether the loss can be quantified in a measurable way: Perren v. Lalari, 2010 BCCA 140. [78] The plaintiff has yet to return

to her four-day per week work capacity. Whether she will ever be able to do so is uncertain, according to Dr. O'Connor. He was optimistic that with more conditioning she could work more, but that has not occurred and she may be one of those individuals who will permanently suffer some disability as a result of the accident. [79] The plaintiff seeks an award in the range of $75,000-$100,000 for loss of future earning capacity. The defendant maintains the plaintiff has not made out her loss or is at most entitled to a nominal sum of $5,000. [80] The plaintiff has only trained for hairdressing. As a result of the accident she had to cut back on clients and is barely covering her expenses. She is unable to grow her business, which was her plan when she began working for herself. Applying the capital asset approach, I find she has been rendered less capable overall of earning income, due in part to her physical discomfort but also because of her poor sleep and depression. Her condition appears chronic and limits her ability to provide all forms of hair services (she has given up cutting men's hair because she has to hold her arms up higher to do so) or do them on a full-time basis. She is limited to part-time work in the hairdressing field and her physical condition likely renders her less appealing to employers in other fields for which she is not qualified, apart from working as a

receptionist in a salon, the only other job she has done. The plaintiff is less valuable to herself in a competitive labour market. [81] The plaintiff is only 33 years of age and has about three decades of her working life ahead of her. She has some residual earning capacity by virtue of working part-time as a hairdresser. I am satisfied that an award of $50,000 compensates her for the loss of her capacity to work full-time and increase her clientele and earnings. [82] I base my assessment on the fact that she has proven a loss in the past and is not currently capable of working at the same capacity as before the accident, a fact attributable entirely to the accident. In other words, she has shown a real and substantial possibility of an income loss by reason of the injuries. I also take into account the possibility that she may improve with time and be able to work more. Finally, the plaintiff did not engage an economist to forecast the present value of future income and I have taken that into account in arriving at the $50,000 figure, which is net of taxes. Special Damages [83] The parties have agreed on special damages in the amount of $6,759.38. Cost of Future Care [84] There is no claim for cost of future care because the defendant's insurer has agreed to leave her benefits claim open for further treatment. Summary [85] In summary, I award the plaintiff the following: Non-pecuniary damages $90,000.00 Past loss of earning capacity 25,000.00 Loss of earning capacity 50,000.00 Special damages 6,759.38 TOTAL: $171,759.38 Costs [86] Unless there are matters I am not aware of, the plaintiff is entitled to her costs of the action at Scale B. "Duncan J." _________ The Honourable Madam Justice Duncan