Chen v. Crystal Computer Ltd.

2022 BCSC 1051 Chen v. Crystal Computer Ltd. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chen v. Crystal Computer Ltd., 2022 BCSC 1051 Date: 20220623 Docket: M174996 Registry: Vancouver Between: Chan Jun Chen Plaintiff And Crystal Computer Ltd. and William Chua Defendants Before: The Honourable Mr. Justice Baird Reasons for Judgment Counsel for the Plaintiff: G. Hoff Counsel for the Defendants: K. Taylor Place and Dates of Trial: Vancouver, B.C. February 7-11 & 14-18, 2022 Place and Date of Judgment: Vancouver, B.C. June 23, 2022 INTRODUCTION [1] On August 29, 2015 the plaintiff, Chan Jun Chen, was the front-seat passenger in a Toyota Highlander driven by her husband, Vincent Lu. Their two teenage children were in the back seats. They were stopped at the intersection of East 41st Avenue and Windsor Street in Vancouver when they were struck from behind by a vehicle operated by the defendant William Chua and owned by the defendant Crystal Computer Ltd. The defendants have admitted liability for the collision. [2] The force of impact was significant. The plaintiff's vehicle was propelled approximately one and one-half car lengths into the intersection. The plaintiff was whiplashed forward and backward with some violence. She has sustained what I consider to be serious and permanent physical and psychological injuries for which she now seeks compensation under all of the usual headings. PLAINTIFF'S INJURIES [3] This trial proceeded for the better part of 10 days during which I heard from the plaintiff, her husband, her daughter, two physiatrists, a thoracic surgeon, two functional capacity evaluators, a vocational consultant, and an economist. [4] On all of the evidence, I conclude that because of the accident, the plaintiff suffers from chronic and likely permanent soft-tissue injuries to her neck, chest and back. These injuries have materially contributed to the development of post-traumatic thoracic outlet syndrome. On this issue, I accept the opinion evidence of Dr. Anthony Salvian, a vascular surgeon called by the plaintiff, and prefer it to that of Dr. Tanya Cabrita, a physiatrist called by the defendants, who rendered a contrary opinion. [5] The parties agree that this accumulation of physical deficits is overlaid with a serious and persistent case of somatic symptom disorder, and that, in the final analysis, this is by far and away the plaintiff's most significant accident-related deficit. The overall result, I have no doubt, has been a substantial and enduring diminution of the plaintiff's physical and emotional functionality in all aspects of her life, both at home and work. She is in constant physical pain and, to make matters much worse, she is unrelentingly tormented by anxiety, depression and upset about her loss of physical capacity and its likely negative impact on her future life, especially her economic life, and by a morbid fear of undertaking any physical activity that will aggravate or increase her pain. [6] The diagnosis of somatic symptom disorder arises from the plaintiff's subjective experience of her pain, which the expert witnesses were unanimous in declaring to be acute and entirely genuine. I agree with them. Her presentation at trial was difficult to watch. She sobbed persistently throughout her testimony, and appeared to me to be in such advanced physical and emotional distress that on a number of occasions I called a halt to proceedings. The plaintiff was able to soldier on with intermittent micro-breaks, but it is clear that she is badly compromised in her everyday functioning. [7] All of the clinicians and evaluators who gave evidence observed a similar presentation. They were unanimous in saying that the plaintiff wept and trembled throughout the history-taking and physical aspects of all her medical and functional capacity evaluations. They observed, as did I, that the plaintiff became particularly emotional when attempting to describe the accident itself, and when discussing its practical negative impact on her business and home life. She showed a marked disinclination to engage in activities or postures that she apprehended would cause her pain. This is consistent with her diagnosed somatic symptom disorder, depression and anxiety, all of which have been acknowledged and accepted by the defendants to be genuine and debilitating. [8] I do not accept the opinion expressed by Dr. Cabrita that the plaintiff is capable of performing her usual work at her pre-accident efficiency, speed and accuracy. It is inconsistent not only with the significant weight of contrary evidence that I do accept, but also with the account of the plaintiff's history, injuries, conditioning and prognosis set out in Dr. Cabrita's own report. I am more inclined to accept the opinion and prognosis of the plaintiff's physiatrist, Dr. Stewart, that she is probably unemployable in any capacity. The plaintiff's vocational consultant, Mr. Lawless, expressed a similar view, saying that in her post-accident state the plaintiff is unlikely to be able to continue running her business, and her employment prospects elsewhere are marginal. [9] In short, and for the additional reasons that I will refer to below, I have come to what I consider to be the only available conclusion on the evidence overall: because of this motor vehicle collision the plaintiff, a person who was previously healthy and capable, now suffers from chronic myofascial pain, probably from thoracic outlet syndrome, and from a serious overlying and debilitating psychiatric disorder, with a poor prognosis for improvement and a much compromised economic future. HISTORY [10] The plaintiff was born in China on February 24, 1967. She is now 55 years old. Her parents, who are both in their 80's, remain fit and well for their age. She has four older brothers and two younger sisters. Her father owned a small garment factory in which both of her parents worked. The plaintiff left school at the age of 15 to work in the family business. She moved to Canada at the age of 20. [11] Here in Vancouver the plaintiff became involved in the same business and for the last decade or so, she has been running her own dry cleaning, tailoring, and alteration business on West Pender Street called the "Royal Stitch". She is a Cantonese speaker with only rudimentary English. She had a brief first marriage lasting only a couple of years. She has been married to her present husband, Vincent Lu, for over 20 years. Their two children are now of university age: a daughter and a son. [12] Most of the plaintiff's trade comes from downtown offices and hotels but it is also a retail storefront operation with regular walk-in customers. For the most part she works on her own, and her daily tasks can be heavy and exacting. Prior to the accident she had no physical problems that inhibited her ability to manage the physical or emotional challenges of her job in any way. She could perform all of the routine aspects of her business without difficulty. She told me that working made her very happy and she took great pride in providing value and service to her customers. Her plan was to work at the same occupation until she was no longer physically capable of it. [13] The plaintiff testified, and I accept, that she has been turning away work since the accident because she can no longer keep up. This is very upsetting for her, and something that she never had to do before. She feels that she is letting down her customers. On all of the medical and functional capacity evidence, I find that her physical complaints include chronic headaches, bilateral neck and shoulder pain, and numbness and tingling into the right arm, forearm and third and fourth fingers as a result of thoracic outlet syndrome. I believe the plaintiff when she says that she is so persistently debilitated by pain that she cannot get a decent night's sleep. She cannot bend, squat or sit for sustained periods. It is difficult for her to reach and lift. Her grip is weak. She has experienced episodes of depression and is in the throes, as I have said, of a serious case of somatic symptom disorder. [14] Since the accident, in other words, and entirely causally related to it, the plaintiff's ability to function has been sharply diminished. She has carried on running her business, but she has only been able to do this by hiring staff to help her, spending longer hours at work per day, and foregoing all her other life's activities to preserve her residual strength for business affairs. It may be that she could continue in this way in the short term, but in my view, it would be deleterious to her physical and mental health, and she cannot be expected to do so only to limit the damages payable for the loss of her normal capacity caused by the defendants' negligence. Instead, the necessity of hiring additional staff to assist her, the requirement to work longer hours to make the same money, the diminution in quality of her life outside work, and the likelihood that soon she will be forced to close her business are the salient features of her meritorious claim for compensation. [15] I admire the plaintiff for her courage and stoicism in continuing to operate Royal Stitch as best she could in the pretrial period. But on my evaluation of the medical and functional capacity evidence, and my observations of the plaintiff's conditioning and mental state during the trial, it will not be realistic for her to continue in her customary line of business, and certainly not for as many years into her age as she had hoped and legitimately expected absent the accident. Within a relatively short period of time, to the contrary, I foresee with clarity that she will no longer be physically or emotionally capable of handling the exertion and stress of her working life, and she will be forced to close Royal Stitch. [16] The plaintiff has also been diminished in her ability to work around her house. She owns a detached residence in East Vancouver where, prior to the accident, she was accustomed to doing most of the housework. She is now unable to do heavy cleaning and gardening, and she relies to a far greater extent on her children and husband to complete these tasks. [17] Finally, the plaintiff is no longer as physically active in her recreational and personal life as before the accident. She has stopped swimming, jogging and cycling since the accident, although my overall impression was that she did not pursue any of these activities consistently. She is more irascible than before the accident. She does not like to go out or entertain. Because of her pain, she sleeps in a separate room from her husband, which has placed stress on her marriage. She told me that she "does not have much life enjoyment". MITIGATION [18] I am satisfied that the plaintiff has done everything that she could reasonably be expected to do in order to rehabilitate herself and maximise her recovery. Despite her long working hours, she has attended diligently and consistently for physiotherapy, massage therapy, chiropractic treatments, acupuncture, and injections. None of these interventions has provided her with anything more than fleeting relief. She has been diagnosed with a torn bursa in her hip but has been deemed by her medical specialist to be unsuitable for surgery. The compendium of her other frailties renders it unlikely that more active therapies will do her much good. [19] I decline the defendant's invitation to reduce the plaintiff's award for failure to mitigate. The proposition that psychological counselling would have helped the plaintiff in any appreciable way is speculative and uncompelling. The plaintiff's psychiatrist, Dr. Babbage, who alone gave evidence on this issue, would only say that such counselling may be of some assistance. A failure to mitigate is for the defendants to establish. They have failed to do so here. FUNCTIONAL CAPACITY [20] I accept the plaintiff's functional capacity evidence to the effect that the plaintiff's work duties exceed her physical capacities and that the pain and symptoms that she experiences in her daily working life have impacted on her productivity. She is limited in the type and intensity of the work that she can perform. She is incapable of handling objects of greater than five to six pounds in weight, which eliminates the possibility of working with heavier clothing and equipment. Her hand grip and coordination are compromised by her thoracic outlet syndrome, a significant problem as her work involves the use of scissors, sewing machines, needles and delicate pin work. [21] I have come to the unhappy conclusion that, because of the defendant's negligence, the plaintiff is no longer competitively employable in the only walk of life for which she is trained or suited. According to the vocational consultant, Mr. Lawless, her intellectual test scores indicate that she is below average in intelligence. She speaks English at roughly the level of a native speaking six-year-old. She has been working beyond her capacity and limitations for almost seven years, and I do not think it can or should go on for much longer. In order to preserve and enhance her residual physical and mental health, I think it inevitable that she will have to close her business. She is competitively unemployable to work for someone else in her traditional career, and now in her mid-50s, with her modest intellectual and linguistic abilities, I agree with Mr. Lawless that she is a poor candidate for any form of retraining or alternative employment. NON-PECUNIARY DAMAGES [22] The proper approach to the assessment of non-pecuniary damages is set out in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46, leave to appeal refused, [2006] S.C.C.A. No. 100. The factors to be considered include the plaintiff's age, the nature of her injuries, the severity and duration of her pain, disability, emotional suffering, the impairment of her physical and mental abilities, the impairment of her family and social relationships, and loss of lifestyle. Stoicism should not reduce a non-pecuniary damages award. [23] Each case must be decided on its own facts. An individualised assessment is called for, and it is neither possible nor desirable to develop a tariff: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005 BCCA 56 at paras. 39-43. However, reference to awards made in similar cases can be of assistance in arriving at a fair award for non-pecuniary damages. [24] In seeking an award of $200,000 under this heading the plaintiff relies on Manoharan v. Kaur, 2016 BCSC 692, Gill v. Stephens, 2019 BCSC 798, Moges v. Sanderson, 2020 BCSC 1511, Firman v. Asadi, 2019 BCSC 270. Defence counsel agrees that the plaintiff is entitled to a solid award, but says that it should be limited to $125,000, citing in support Walls v. Ocampo, 2020 BCSC 499, Mallier v. Falcomer, 2021 BCSC 1827, Sparks v. Keller, 2022 BCSC 231. [25] I am satisfied that the cases handed to me identify an appropriate range of general damages in analogous cases. I would liken the plaintiff's case to those on the higher end of it. Manoharan and Gill might be the best comparators. In my overall assessment, her ongoing and likely permanent chronic pain, depression, sleeplessness, anxiety, thoracic outlet injury and somatic symptom injuries have profoundly and negatively impacted her enjoyment of every aspect of her life. An award of $185,000 under this heading accords with the authorities cited and is fair to both sides. LOSS OF EARNING CAPACITY Past [26] The plaintiff testified that since the accident she has had to turn away 20% of her business due to her symptoms and reduced work capacity. While prior to the accident she worked from 9:00 a.m.-7:00 p.m. or 8:00 p.m., she now works until 10:00 p.m., but is still unable to accomplish the same volume of work as she did before. She has to take many breaks throughout the day, and works through her constant state of pain, discomfort, and distress. She no longer finds her work enjoyable. [27] Since the accident, she has been forced to hire part-time employees to assist with the work she previously performed, but she has found it difficult to find and retain these employees long-term. The pay is very modest and her helpers tend to move on quite rapidly. The parties agree that the plaintiff should be compensated both for the loss of her business since the accident as well as the cost of the additional employees. The only point of disagreement is how the amount should be calculated. The source of this disagreement stems from an alleged ambiguity in the plaintiff's testimony. [28] The plaintiff submits that she has had to turn away 20% of her total business due to her symptoms, this amount being the "rush" business that she performed before the accident. The plaintiff suggests an appropriate assessment of this loss would include the total cost of replacement labour since the accident ($28,685), as well as 20% of her average gross sales since the accident, less a deduction of 28.4% representing her average overhead costs, resulting in a total of approximately $122,000 for the loss of business. She submits that it would be fair and reasonable to deduct a further 15% for taxes she would ordinarily pay upon these amounts, resulting in a net total loss of that I will round off at $130,000. [29] The defendant interprets the plaintiff's testimony as stating she was forced to turn away 20% of her rush business, rather than 20% of her total business. The defendant agrees that the cost of the replacement employees ($28,685) should be included in the assessment of her lost earning capacity. [30] I do not accept the defendant's interpretation of the plaintiff's evidence. Instead, I took her to mean that she was forced to turn away all of her "rush" business since the accident, since her symptoms slowed her down and prevented her from engaging in this type of rapid, hard-deadline work. As I understood her, she estimated that the "rush" business was about 20% of her total business prior to the accident. [31] Injured persons must be compensated for their past loss of earning capacity which results from tortious conduct: Rowe v. Bobell Express Ltd., 2005 BCCA 141. This loss may be assessed in a number of different ways, including a comparison of the amount the plaintiff would have earned or made from her business but for the accident (Rowe at para. 31). In my view, the plaintiff's suggested method of assessing past net loss but for the accident is fair and reasonable. The cost of paying new employees and the reduction in her business were the result of her accident-related symptoms and are a fitting measure of compensation for past loss of capacity. I award $130,000 under this heading. Future [32] The Court of Appeal restated the principles to be applied in assessing the loss of future earning capacity in three recent decisions. I must firstly consider if the evidence establishes that there is a real and substantial possibility that a future event will result in a pecuniary loss to the plaintiff. Then I must asses the likelihood of such a future event, and its impact on the plaintiff's ability to earn income. (Lo v. Vos, 2021 BCCA 421 at paras. 109-121 and Rab v. Prescott, 2021 BCCA 345 at para. 47). While the assessment of a plaintiff's loss is not a mathematical calculation, the plaintiff's pre-accident income serves as a useful point of comparison in determining the plaintiff's post-accident earning capacity, and the degree to which it has been diminished by the accident: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32, quoted in Dornan v. Silva, 2021 BCCA 228 at para. 156. [33] The plaintiff submits that it is a real and substantial possibility that she will be unable to continue operating her business in the future, and that, due to her age, her modest intellectual abilities, the language barrier, and her physical and psychiatric disabilities, she will be unable to find alternate employment. The defendant disputes this, pointing to the fact that the plaintiff has been able to continue running her business until now, with the likelihood that she will continue doing so in future. The defendant maintains that the relevant real and substantial possibilities are that the plaintiff will continue to improve, and regain functional and work capacity, or that she will continue to work at her current, reduced, level. [34] I disagree. As I have already said, I accept the plaintiff's submission that her business activities are unsustainable, and that when Royal Stitch closes, she will be unlikely to find other employment. I view this event as not only inevitable but proximal. The preponderance of the medical evidence points clearly in this direction. The plaintiff suffers from chronic pain which is overlaid with significant psychiatric and emotional disability. I recognise that the defendant has expressed doubts about the plaintiff's diagnosis of thoracic outlet syndrome, but in my view her overall prognosis, whether or not my conclusion favouring Dr. Salvian's opinion on this subject is correct, is decidedly unpromising. [35] It is Dr. Babbage's evidence, which I repeat was not disputed, that most concerns me about the plaintiff's future. He believes that the plaintiff's somatic symptom disorder is "vulnerable to worsening" and noted that her stress and fatigue from work may lead to this result, and in any event, it markedly impairs her ability to cope with the everyday realities of her life since the accident. Dr. Babbage does not think that this psychiatric condition is likely to improve or respond to medications. He recommended a number of interventions including psychotherapy in order to prevent a deterioration in the plaintiff's health, but he noted that running her business prevents her from engaging in such interventions because she has no time during the day. [36] I would repeat that, elsewhere in the evidence, which of course I must consider in its totality, Mr. Hosking, a physiotherapist engaged by the plaintiff, has expressed the opinion that the plaintiff's work demands exceed her functional capacities. Dr. Salvian has diagnosed substantially disabling thoracic outlet syndrome combined myofascial pain. Dr. Stewart, who reviewed the plaintiff's history including the reports of Drs. Salvian and Babbage, has said that the plaintiff's work materially worsens her physical and psychological symptoms, and has concluded that "Ms. Chen's prospects for a reasonable quality of life in the future will depend on her giving up work." [37] The defendant insists that the plaintiff's prognosis is not as bleak as the plaintiff's experts predict, relying on the opinion evidence of Dr. Cabrita. In overall substance, however, Dr. Cabrita's evidence does not paint any kind of realistically hopeful picture for the plaintiff's future recovery. She endorsed the plaintiff's significant soft tissue pain and psychological symptoms, all of which she attributed to the accident. Leaving aside her disagreement with Dr. Salvian about thoracic outlet syndrome, she stated that she would defer to a psychiatrist concerning the plaintiff's mood, sleep disturbances, and subjective reactions to physical pain. [38] The defendant suggests that Dr. Cabrita's assessment contradicts the less optimistic view put forward by the plaintiff's assessing physicians. I disagree. I have already said that, in my view, the plaintiff's most debilitating accident-related condition is somatic symptom disorder. In this connection, Dr. Cabrita's deference to Dr. Babbage's views is to be expected, as the psychiatric dimension of the plaintiff's ongoing disability is entirely beyond the scope of her expertise. Her opinion that Ms. Chen, functionally speaking, would be able to achieve "minor further improvement", not in itself particularly optimistic, does nothing to dampen the impact of Dr. Babbage's opinion that the plaintiff's somatic symptom disorder, already significantly debilitating, may be aggravated by stress and worsen over time, increasing her risk of major depressive disorder. [39] The defendant's occupational therapist, Mr. Jaschke, reported that he was unable to get a "true" picture of the plaintiff's functional capacity due to her "pain avoidance behaviours", suggesting that the two were somehow unrelated. In my view, however, her functional capacity must be considered in light of the combination of her chronic myofascial pain and her subjective and genuine psychological reaction to it, which I conclude has resulted in sharp and enduring limitations in her overall functional capacities. Mr. Jaschke's limited ability to assess the plaintiff's physical functioning does not cast doubt upon, but rather confirms, this conclusion. [40] I do not accept the defendants' submission, either, that because the plaintiff has been able to push through her significant pain and continue working in the pretrial period, her injuries have not significantly limited her functional capacity, or that she will be able to continue working on the same pace and schedule indefinitely. In my opinion - as I have already said - while her stoicism is laudable, her business activities are not sustainable beyond the immediate term given her significantly limiting physical and psychological injuries. [41] I will put it this way: since the accident, the plaintiff has not had the physical strength or energy for anything but work. Her perseverance belies the true impact of the accident on her overall functionality. The fact that she must now devote substantially all of her available strength to the effort required to keep her business going demonstrates that her functional capacity has been severely reduced since the accident. In my opinion, working and conducting her life in this unbalanced manner is not only unsustainable but is actively harmful to her immediate physical and mental health. It has to stop. [42] The goal of damages is to place the plaintiff in her pre-accident position, including whether she is less valuable to herself as a person capable of earning income in a competitive labour market. This must be assessed in the entire context of her life, including her non-work activities. The defendant's assertion that her functional capacity has not been badly damaged because she has continued working distorts the picture by focusing on only one part of it, and ignores the fact that overall the accident has badly compromised the plaintiff in her functional capacities, including at work. [43] I conclude that the plaintiff's capacity to earn income viewed as a capital asset has been badly damaged. I have already expressed my view that there is a very real and substantial possibility that she will be forced to close her business in the near-term. I say this for roughly the same reasons as Dr. Stewart, namely that for the plaintiff to have a reasonable quality of life and to take proper care of herself, she must down her work tools. I must now attempt a valuation of this loss. [44] This is not a mathematical endeavour, nor directly commensurate with her pre-accident earnings. However, her income prior to the accident is a relevant point of reference in assessing her future losses. The plaintiff presented evidence of her salary and earnings from Royal Stitch in 2011-2018. The evidence shows she paid herself an average salary of approximately $11,500 and averaged approximately $13,500 of further income from the business when extraordinary expenses such as renovations were taken into account. [45] Counsel for the plaintiff invited me to consider the relatively significant amounts allocated to depreciation which the plaintiff submits were not "amounts physically paid" but rather claimed as deductions on Royal Stitch's taxes on the advice of the company's accountant. I am not prepared to include these amounts in considering Ms. Chen's income. I was not provided with any authority for such an inclusion, and, as I understand it, depreciation represents an averaging of business expenses related to capital equipment over time according to generally accepted accounting principles. [46] I do not see why this would be relevant, since it is Ms. Chen's net income, rather than gross business income, which is relevant to an assessment of her lost earning capacity. I was not provided with any evidence that Royal Stitch's actual expenses were less than those recorded in its tax filings or other evidence that would justify departing from figures set out in the accounting documents sent to the taxation authorities. [47] In my view, $25,000 is a conservative assessment of Ms. Chen's yearly earnings from Royal Stitch. Counsel for the plaintiff suggested that due to her love of her business and work ethic, but for the accident Ms. Chen likely would have worked until age 67, approximately 12 years from the date of trial. I think that this is a fair and reasonable suggestion. The time-value of money, or discount rate, must be considered in assessing Ms. Chen's award: Orr v. Graemond Holdings Ltd., 2022 BCCA 156 at paras. 81-85. [48] In calculating the discount, I will accept and use the multipliers recommended by the plaintiff's economist, Mr. Benning, in the following calculation: ($25,000/1,000) x 7,522, or $188,050. Also, in Rab, Lo, and Dornan, the court emphasised the importance of assessing the relative likelihood of future contingencies in assessing lost earning capacity. As stated above, I consider the imminent closure of Royal Stitch and the plaintiff's inability to find alternate employment as a near inevitability. I would put the likelihood at 90%. Therefore, the plaintiff's loss of earning capacity is assessed as $188,050 x 0.9, or $169,245. COST OF FUTURE CARE Legal Analysis [49] The legal principles with respect to future cost of care were recently summarised by the Court of Appeal in Pang v. Nowakowski, 2021 BCCA 478. At paras 56-58, Justice Voith stated the following: [56] The legal framework that is relevant to a future cost of care award is well-established. Recently in Quigley, this Court said: [43] The purpose of the award for costs of future care is to restore the injured party to the position she would have been in had the accident not occurred. This is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff. [44] It is not necessary that a physician testify to the medical necessity of each item of care for which a claim is advanced. However, an award for future care must have medical justification and be reasonable. [57] Several additional principles are relevant: i) The court must be satisfied that the plaintiff would, in fact, make use of the particular care item; ii) The court must be satisfied that the care item is one that was made necessary by the injury in question and that is not an expense the plaintiff would, in any event, have incurred; iii) The court must be satisfied that there is no significant overlap in the various care items being sought. [58] Assessing damages for future care has an element of prediction and prophecy. It is not a precise accounting exercise; rather, it is an assessment. Nevertheless, the award should reflect a reasonable expectation of what the injured person would require to put them in the position they would have been in but for the incident. This is an objective assessment based on the evidence and must be fair to both parties. Once the plaintiff establishes a real and substantial risk of future pecuniary loss, they must also prove the value of that loss. [50] McLachlin J. (as she then was) stated in Milina v. Bartsch, [1985] B.C.J. No. 2762 (S.C.) what has frequently been referred to as the cost of future care test: 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. (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable. The award for cost of care should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff's health. At the same time, it must be recognized that happiness and health are often intertwined. [51] In Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.) Harvey J. discussed the language in Milina. He found the defendant's argument that future care awards were only to be made on the basis of a "medical necessity" test was not correct. He made an award for cost of future care based on what care was justified on the medical evidence, with consideration given to the preferences of the plaintiff: 80 In the circumstances here, it is necessary to address the submission of the defendants that medical necessity, purporting to arise from Milina, is the appropriate test. I do not agree. 81 This issue was addressed in Zapf. on appeal, (1996), 26 B.C.L.R. (3d) 201 (B.C.C.A.), where Donald J.A. stated: I think the proper test is reasonableness and that the psychological and emotional factors influencing the choice of where to live must be considered; Andrews v. Grand & Toy Alberta Ltd. (1978), 2 S.C.R. 229 at 238 and 245. Medical necessity is too stringent a test. [Emphasis added.] 82 While in a specific sense the court in Zapf was dealing with "the choice of where to live", it was considering the proper test in relation to the care of the plaintiff. There is nothing in the judgment of the Court of Appeal in Zapf to suggest there be a different test or tests applicable to the other components of care. 85 In Milina reference was made to what was described as the defendant's approach, referring to medical justification of the award for cost of future care. Following analysis of such a position, McLachlin J. at p.84 stated: These authorities establish (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable. 86 This passage from Milina has been quoted and applied since its delivery in 1985. 87 I comment in passing that no where in Milina did McLachlin J. use the words "medical necessity". [emphasis added] 88 Finally, I refer to the recent judgment of Low J. in Mann v. Ross, [1998] B.C.J. No. 592, 1998, Vancouver Registry B50087, in which, after considering Milina, he stated: The award for future care is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff. To that should be added that the plaintiff's preferences as to the type and level of care should be considered. Discussion [52] The plaintiff claims the following awards for costs of future care: Sit Stand Desk $1,961.00 Height Adjustable Table $2,712.00 Ergonomic Office Chair $1,957.00 Bathroom Safety bars $196.00 Cut away installation bathtub $991.00 Regular housekeeping $98,294.00 Seasonal housekeeping $17,449.00 Physiotherapy $78,686.00 Massage Therapy $69,406.00 Chiropractic $56,806.00 Psychotherapy $3,471.00 Kinesiology $1,984.00 Botox $111,770.00 Pain Clinic $19,827.00 Suvexx $15,737.47 Medication $25,587.00 Supportive Mattress $2,523.00 Supportive Pillow $948.00 Fitness facility membership $9,832.00 Total $520,137.47 [53] The defendant is agreeable to, and I will allow, the full amounts for the bathroom safety bars, cut away installation style of bathtub and continued kinesiology. Mr. Hosking recommends 20-24 kinesiology sessions in the first year and an additional six sessions over the next five years to develop an exercise regime, which I consider to be reasonable. The parties also agree on a fitness facility membership; the plaintiff submits that the membership should be to age 80, the defendant to age 75. I agree with the plaintiff that the fitness membership cost should be allowed to age 80. [54] The plaintiff is seeking a height adjustable table to be replaced every five years to age 65, an ergonomic office chair to be replaced every two years, a supportive mattress to be replaced every five years and supportive pillows to be replaced every two years. Defence agrees that these items are medically necessary but that the plaintiff is only entitled to their one-time cost. I rule in favour of the plaintiff concerning these items - they are therapeutically necessary and occasionally need replacement. [55] Mr. Hosking's report provides a recommendation for regular housekeeping on a weekly basis for three hours to age 80 ($98,294) and heavy seasonal housekeeping four times per year to age 80 ($17,449). Defence counsel agrees that some assistance with housekeeping is medically appropriate, but not to the extent that the plaintiff is seeking. Defence counsel suggests that housekeeping services one to two times per month and heavier seasonal cleaning one to two times per year to age 75 is ample. This has been broken down by defence as follows: regular housekeeping one time per month at $97.50 ($32.50 per hour for three hours) or regular housekeeping two times per month at $97.50 ($32.50 per hour for three hours), and seasonal housekeeping once a year at $225 ($32.50 per hour for six hours) or seasonal housekeeping twice a year at $225 ($32.50 per hour for six hours). In my view, the plaintiff is asking for too much, and the second of the options proposed by the defendant is reasonable and fair to age 80: regular housekeeping twice per month and seasonal housekeeping twice per year for a total of $68,250. [56] Dr. Salvian noted that although not curative, passive therapy can be very helpful, and he recommends that Ms. Chen continue with her current treatment of massage, physiotherapy and chiropractic treatments. The plaintiff makes a claim for such therapies to age 110. Defence counsel agrees that this treatment is medically justified, but not to age 110 or at the frequency suggested in Mr. Hosking's report. [57] Defence counsel submits, instead, that Ms. Chen should be compensated to attend 16 sessions of each type of passive therapy to age 75. In my view, once again, on this issue the plaintiff is asking for too much and the defendant's position is reasonable, measured and fair. I accept defence counsel's position, but as with other items, to age 80. Physiotherapy on this basis at $94 per session until the plaintiff reaches the age of 80 will cost $37,600, massage therapy at $79 per session will cost $31,600, and chiropractic treatment at $68 per session will cost $27,200. I allow all of these amounts. [58] Dr. Babbage recommends that Ms. Chen should continue attending for Cantonese language psychotherapy appointments, and I agree that this could prove to be helpful. The defendant agrees to this cost which I will allow for $4,680. [59] Dr. Salvian recommended injection therapy (Botox or Lidocaine) and Ms. Chen testified that this does provide her with some symptomatic relief. Here again, the plaintiff is seeking Botox injections to age 110 for a total cost of $111,770. The defendant relies on Dr. Salvian's statement that "this is not typically a curative treatment and eventually the Botox will typically lose it's effect after several sessions". Defence counsel submits, and I agree, that given the circumscribed effectiveness of this treatment, additional injections for one year would be appropriate and fair for a total cost of $1,716. [60] The parties agree that the plaintiff would benefit from attending at a pain clinic. The plaintiff demands the cost of a private clinic, mostly on the basis that there may be a delay in admission to a public clinic. The defendant relies on Dr. Cabrita's evidence that the wait time for a MSP funded pain clinic is only three to six months. I accept Dr. Cabrita's evidence in this connection. It is reasonable to expect the plaintiff to wait out this brief interval, especially since she could have enrolled at any time in the years since the accident but did not do so. I make no award for this item. [61] The parties agree that the medications Suvexx, Mirtazapine, Tramadol, Advil and Tylenol are necessary. The disagreement, once again, is to what age the plaintiff should be entitled to compensation for them. The plaintiff submits that she is entitled to cost of these medications to age 80 for a total of $41,324.47 whereas the defence submits that she should only be compensated to age 75 for a total of $28,070.96. I rule in favour of the plaintiff on these items. [62] In summary, I will allow the following amounts under this heading, adjusted for present value, where relevant, according to multipliers provided by the plaintiff's economist, Mr. Benning: Sit Stand Desk $1,961.00 Height Adjustable Table $2,712.00 Ergonomic Office Chair $1,957.00 Bathroom Safety bars $196.00 Cut away installation bathtub $991.00 Housekeeping $68,250.00 Physiotherapy $37,600.00 Massage Therapy $31,600.00 Chiropractic $27,200.00 Psychotherapy $4,680.00 Kinesiology $1,984.00 Botox $1,716.00 Pain Clinic $0 Medication $41,324.47 Supportive Mattress $2,523.00 Supportive Pillow $948.00 Fitness facility membership $9,832.00 Total $235,474.47 CONCLUSION [63] I award the plaintiff the following amounts: Non-Pecuniary damages: $185,000.00 Past loss of earning capacity: $130,000.00 Future loss of earning capacity: $169,245.00 Cost of future care: $235,474.47 Total: $719,719.47 [64] The plaintiff will have her costs on Scale B. "Baird J."