Fletcher v. Biu

2020 BCSC 1304 Fletcher v. Biu

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fletcher v. Biu, 2020 BCSC 1304 Date: 20200903 Docket: M177992 Registry: Vancouver Between: Michelle Fletcher Plaintiff And Amabetare Biu, Richard Jenkins and Coast Mountain Bus Company Ltd., doing business as South Coast British Columbia Transportation Authority Defendants Before: The Honourable Madam Justice Douglas Reasons for Judgment Counsel for Plaintiff: M.A. Huot J. Mackoff Counsel for Defendants: S.N. Baldwin Place and Date of Trial: Vancouver, B.C. June 15-19, 22-23, 25-26, 2020 Place and Date of Judgment: Vancouver, B.C. September 3, 2020 Table of Contents INTRODUCTION. 3 BEFORE THE ACCIDENT. 3 THE ACCIDENT. 5 AFTER THE ACCIDENT. 5 Injuries. 5 Return to Work. 5 Subsequent Treatment 5 Termination of LTD Benefits. 6 Current Employment 7 Current Condition. 7 EXPERT MEDICAL EVIDENCE. 7 Dr. Bishop, Spine Specialist 7 Dr. Tamir Ailon, Neurosurgeon. 9 Dr. Wiseman, Psychiatrist 10 CREDIBILITY AND RELIABLITY OF EVIDENCE. 11 LIABILITY. 13 Causation. 13 DAMAGES. 15 Failure to Mitigate. 15 General Damages. 19 Loss of Housekeeping Capacity. 21 Special Damages. 22 Past Loss of Income. 23 Future Loss of Income. 28 Counselling. 39 Medications. 40 Passive Therapy. 40 SUMMARY. 41

INTRODUCTION [1] On November 23, 2016, the plaintiff was a front seat passenger in a vehicle that collided multiple times with a transit bus (the "Accident"). The Accident changed her life. [2] The sole remaining defendant, Amabetare Biu, admits liability. The trial focused on determining the appropriate compensation for the plaintiff's injuries that she says are permanent and significantly disabling. She seeks general damages, damages for the loss of housekeeping capacity, special damages, damages for past and future income loss, and future care costs. The defendant disputes quantum and argues that the plaintiff has failed to mitigate her damages.

BEFORE THE ACCIDENT [3] The plaintiff was born in a small village in Ireland where she enjoyed a happy childhood. Before the Accident, she was a confident, sociable, and athletic young woman who had many friends. She loved sports, had a passion for Irish football, and was an accomplished player. She participated in physically arduous training with the Irish Army Reserves as a part-time volunteer signal officer. [4] The plaintiff's mother and older sister, Leah, described her as physically and mentally strong, active, energetic, and outgoing before the Accident. Her social life and self-identify were centred on her involvement in team sports, evidence her mother, sister, and former Irish football teammate, Louise Gavin, corroborated. [5] After completing high school, the plaintiff attended Teeside University in Ireland, graduating in November 2009 at the age of 22 with an Honours Bachelor of Science degree in Occupational Therapy ("OT"). Her long-term career goal was to work with children and to establish her own private OT practice within about five years, after obtaining sufficient work experience. [6] The plaintiff graduated from university in the middle of a recession in Ireland. She worked as an OT in the UK from 2010 to 2013. The work was physically demanding but she loved it and managed her job without difficulty, evidence her mother and older sister corroborated. She

dealt with the stress of her work by engaging in regular physical activity. [7] In July 2013, at the age of 25, the plaintiff immigrated to Canada. Her older sister had moved to Vancouver in 2010 and found a job teaching children with special needs. The plaintiff loved Vancouver and the active lifestyle it afforded. In February 2014, she secured a full-time job at Vancouver College as an education assistant, working with a teacher of children with special needs. She also found work as an administrative assistant at the University of British Columbia ("UBC"), Faculty of Medicine, and as a volunteer at an end-of-life camp for children with cancer. [8] After completing her OT recertification in Canada in July 2014, the plaintiff assumed greater responsibility at Vancouver College; from July 2014 to August 2015, she worked as an OT with disabled children at a private home-based clinic. On July 2, 2015, she began working for the Vancouver Coastal Health Authority ("VCHA"). In September 2015, she started doing part-time OT consultations and executive skills training for children and youths for Mosaic Education, a private OT clinic. [9] By early 2016, the plaintiff was working for VCHA at two locations: at the Arts Studio, a treatment centre for youths with mental health and substance use issues, and at Dogwood Lodge, a residential care facility where she was the sole OT and

supervised a therapy assistant. In July 2016, she transitioned to a full-time senior OT "float" position with VCHA, assessing patients and providing intervention for seating, positioning, pressure care, and mobility issues. As a "float", she was responsible for covering anyone who was sick, on vacation, or otherwise absent. This work, which she performed on various wards at Vancouver General Hospital ("VGH") and at affiliated nursing homes at VGH and UBC, was physically demanding. She completed initial, transfer, and swallow assessments, assisted unstable patients with transfer and mobility issues, evaluated fall risks, offered rehabilitation and equipment recommendations, assessed functional activities, provided skin care, ensured patient safety, and supervised rehabilitation assistants and students. [10] At the time of the Accident, the plaintiff was working for VCHA, Mosaic, and Vancouver College. She was busy, happy, and engaged in her new life. She had decided to make Vancouver her permanent home.

THE ACCIDENT [11] The Accident occurred near the intersection of West Broadway and Laurel Street in Vancouver. The defendant attempted to change lanes and his SUV collided several times with a bus. The plaintiff was knocked around inside his vehicle. The Accident left her scared and shaken.

AFTER THE ACCIDENT Injuries [12] Immediately after the Accident, the plaintiff walked to the VGH ER, about one block away. By the time she arrived, she had shoulder, neck, upper and mid-back pain. She was advised to rest, take anti-inflammatory medication, and follow-up with her family doctor. Return to Work [13] The plaintiff returned to work a few days after the Accident. Doing so resulted in an acute aggravation of her symptoms and her GP advised her to take some time off. Her back pain increased over the following months and she experienced headache, neck pain, and disrupted sleep. She did some part-time private OT assessments until the spring 2017. She stopped playing sports. Her back pain continued unabated. She had nightmares and panic attacks and her mental health deteriorated. Subsequent Treatment [14] In 2017, the plaintiff pursued physiotherapy, massage therapy, acupuncture, chiropractic treatments, and medical management. She recalls that her 2017 routine revolved around attending and resting after medical appointments. She did not return to sports and was less involved with her young nephew than she had been previously. She drove short distances only as she could not sit for long, found it difficult to shoulder check, and was anxious in the car. [15] In February 2017, at the request of Great West Life ("GWL"), VCHA's disability insurer, the plaintiff attended for a

functional capacity evaluation; doing so aggravated her symptoms and triggered back spasms and pain. From March 1 to 17, 2017, she attempted a graduated return to work ("GRTW"). It aggravated her back pain. She lacked the necessary strength to do her job, found it difficult to push patients in wheelchairs, and worried about dropping patients or allowing them to fall. The GRTW was unsuccessful. [16] In May 2017, the plaintiff experienced a significant increase in her symptoms after a physiotherapy session, describing "ripping pain" and spasms across her back and into her ribs and an inability to walk or move her legs. She went to the ER and was given Toradol and morphine. In October 2017, she saw spine specialist, Dr. Paul Bishop, who became her treating physician in early 2018. He focused on spine flexibility, referred her to the Spine Flex program through the VGH Spine Injury Clinic, gave her a home exercise program, and advised her against returning to work. [17] In 2018, the plaintiff began to acknowledge that her life had changed and that she had mental health issues. She was often anxious, irritable, and tearful. Her mood was consistently low and she sometimes had difficulty getting out of bed. Termination of LTD Benefits [18] Effective February 28, 2019, GWL terminated the plaintiff's LTD benefits after concluding that there were inconsistencies between her reported

functional abilities and the video surveillance it had obtained. In March 2019, the plaintiff moved back to her parents' home in Ireland. She was no longer able to support herself financially and decided to focus on improving her mental health with the emotional support of her extended family. She intended her return to be temporary. Current Employment [19] In August 2019, the plaintiff secured a full-time fixed term contract OT position at a small private hospital in Dublin. Her contract expired on July 31, 2020. She was entitled to 29 days of annual paid leave, required to work 37 hours a week, and earned a gross annual salary of €60,187. She had an accommodating employer, received help with her job duties from colleagues and a therapy assistant, and missed a substantial number of days of work for health reasons. Current Condition [20] The plaintiff complains of ongoing chest, upper, mid and low back pain, left leg symptoms, headache, sadness, anxiety, periodic nightmares, impaired sleep, and fatigue. She is an uneasy driver and passenger. [21] Her future treatment plans include seeing a spine specialist, psychologist, psychiatrist, physiotherapist, and massage therapist in Ireland. She is currently on a wait list to see a counsellor and takes a variety of medications to manage her physical and psychiatric symptoms. While the plaintiff hopes to return to Vancouver and has included such a move in her 2021 plans, she does not know if doing so is realistic.

EXPERT MEDICAL EVIDENCE [22] The plaintiff called three medical experts at trial. All were highly qualified to offer the opinions they did and testified in a fair, balanced, and thoughtful manner. Their opinions were consistent, evidence-based, and were neither contradicted by other admissible medical evidence nor undermined in any material way during cross-examination. Their evidence was clear and compelling and I accept it without reservation. Dr. Paul Bishop, Spine Specialist [23] Dr. Bishop has extensive experience in the non-surgical diagnosis and management of spinal conditions. He was qualified as an expert in clinical spinal and intervertebral disc pathology. He authored three reports dated October 10, 2017, September 13, 2018, and March 5, 2020, and gave evidence as both an expert and a treating physician. [24] At the time of his first assessment, the plaintiff's chief complaint was mid-back and chest wall pain. She also reported constant midline low back pain, leg symptoms, and occasional headache. Dr. Bishop was of the opinion she had chronic mechanical discogenic thoracic back pain and cervicogenic headache. MRI imaging identified multi-level intervertebral disc and facet joint pathology. Dr. Bishop recommended a nuclear medicine bone scan and a supervised exercise-based treatment program and advised against passive forms of therapy or prolonged use of analgesic

medication. He concluded that there was a strong causal relationship between the plaintiff's spinal complaints and the Accident. [25] On February 15, 2018, Dr. Bishop saw the plaintiff for the first time as her treating physician. The plaintiff reported a significant increase in back pain radiating down her legs following a functional capacity evaluation. On examination, he identified a tight lumbar spine with diminished flexion and lordosis (i.e., curve). He diagnosed chronic mechanical discogenic mid-back pain and non-specific mechanical low back pain. He concluded that her lower extremity symptoms were not spine-related. [26] On November 1, 2018, the plaintiff underwent a thoracic spine image-guided epidural steroid injection. It confirmed Dr. Bishop's diagnosis and provided some short-term pain relief but no overall improvement. He testified that there is a close relationship between chronic pain and depression; he advised the plaintiff that, until she was taking a regular anti-depressant and had improved her mood, spinal treatment would likely provide her with short-term relief only. [27] On February 21, 2020, a repeat thoracic spine MRI demonstrated markedly increased and pronounced kyphosis, progressive disc degeneration, and multiple thoracic disc bulges and protrusions. An updated lumbar spine MRI the same day showed progression of her multi-level facet joint

pathology. Dr. Bishop diagnosed chronic discogenic mid-back pain with an associated kyphotic deformity, chronic mechanical low back pain secondary to multilevel facet joint arthropathy, chronic mechanical neck pain, and cervicogenic headache. Dr. Bishop testified that severe disc pain (as in the plaintiff's case) is difficult to treat. Surgery is considered "rescue therapy" and is typically associated with marginal results. He identified the presence of a kyphotic deformity as a poor prognostic indicator. Dr. Tamir Ailon, Neurosurgeon [28] Dr. Ailon was qualified as an expert in neurosurgery, with a subspecialty in spinal deformity and complex spinal surgery. His practice focuses exclusively on the treatment of spinal conditions. [29] Dr. Ailon assessed the plaintiff on February 21, 2020 and authored a report dated March 13, 2020. The plaintiff reported left knee, posterior neck, mid and low back pain, mental health concerns, and disability in all domains of her life. Bending, lifting, pushing, pulling, and sustained postures aggravated her symptoms. Dr. Ailon reviewed the plaintiff's March 2, 2017 and February 21, 2020 thoracic and lumbar spine MRI images; his own impression of those studies was consistent with the reports of the reviewing radiologists. The 2017 MRI demonstrated mild degenerative changes in the cervical and thoracic spine; the 2020 MRI study showed disc

desiccation (i.e., evidence of the disc "drying out"), particularly in the mid-thoracic spine, and progression of the degenerative changes in the facet joints. Dr. Ailon described these changes as beyond those he would expect to see in someone the plaintiff's age in less than three years. [30] On examination, Dr. Ailon noted that lumbar and lateral flexion was reduced by 20% and elicited pain. He diagnosed post-traumatic mechanical neck, mid and low back pain caused by the Accident. He was unable to explain her bilateral leg pain. In his opinion, she has reached maximal recovery of her neck and back complaints and treatment is unlikely to yield further improvement. He confirmed that the plaintiff is not a surgical candidate. Dr. Stephen Wiseman, Psychiatrist [31] Dr. Wiseman was qualified as an expert in the area of psychiatry. He has extensive experience in the treatment of patients with chronic and complex pain. He assessed the plaintiff on October 2, 2018 and March 11, 2020, and authored two reports dated October 9, 2018 and March 12, 2020. [32] On October 2, 2018, the plaintiff presented with anxiety, depression, generalised worries, and thoughts of sadness, loss, and isolation. In Dr. Wiseman's opinion, she had developed a complex of post-traumatic symptoms following the Accident, including the most distressing and intrusive diagnostic components of PTSD; namely:

significant sleep disruption, persistent Accident-related nightmares, panicky anxiety, fear and physiological arousal in vehicles, irritability, increased vigilance, and impaired concentration. In his opinion, she also had elements of clinical depression and was likely diagnosable with a Major Depressive Disorder ("MDD") with anxious distress. He concluded that her emotional state was likely enhancing her pain and suffering, inhibiting her rehabilitation and recovery, and causing some degree of pain "catastrophization". He concluded that the loss of her previously active sports lifestyle had negatively affected her self-identity. [33] On March 11, 2020, Dr. Wiseman re-assessed the plaintiff. Since her last visit, she had pursued counselling, taken antidepressant medication, undergone an epidural steroid injection, returned to Ireland, and found an OT position in Dublin. She reported that this work involved limited physical demands, no significant mental health or addiction component, and a manageable case load. She described her employer as supportive and, although she liked her job, she found the work to be exhausting. She reported difficulty driving more than 30 minutes due to pain, having low driving confidence, and being a nervous passenger. She had impaired sleep due to anxiety symptoms and occasional nightmares, daytime fatigue, problems concentrating, panicky anxiety

(including racing thoughts, increased heart rate, sweating, and tearfulness) and ongoing back and left leg pain. [34] Dr. Wiseman concluded that the plaintiff's MDD and PTSD symptoms were in partial remission and diagnosed a General Anxiety Disorder ("GAD"). In his opinion, the combined effect of her chronic pain and GAD were likely causing the fatigue which impaired her daily function. He testified that the plaintiff's chronic pain and GAD will continuously "dance with each other", with one perpetuating the other indefinitely, unless they can be improved; he noted that the longer these conditions persist, the less likely it is improvement will occur. He estimated the plaintiff's risk of relapse into more severe depression to be greater than 50% given her chronic pain, significant anxiety, and mild residual depressive symptoms. In his opinion, she is at an increased risk of relapsing into more severe PTSD if exposed to new trauma.

CREDIBILITY AND RELIABLITY OF EVIDENCE [35] The relevant principles to be applied when assessing the credibility of interested witnesses are discussed in the frequently cited passages of Justice O'Halloran in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.), and Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398, at para.

186. I have applied those principles here. [36] The defendant did not seriously challenge the plaintiff's credibility. Other credible witnesses corroborated her evidence in all material respects. I found no significant inconsistencies in her evidence. She answered questions directly, made no apparent attempt to embellish her answers, and admitted to occasional lapses in her memory, none of which I found to be either surprising or material. She made admissions against interest readily including, for example, acknowledging an improvement in her mental health after engaging in treatment and returning to Ireland. [37] In cross-examination, the plaintiff was questioned about portions of the GWL video surveillance. She admitted it shows her arriving at YVR with a suitcase, dropping two bags (which she said were not heavy) into a dumpster behind her former apartment, pushing her young nephew in a stroller on a city sidewalk, and accompanying him to a thirty minute recreational class (where she is seen standing, moving her legs, sitting, kneeling, and bending forward). This video surveillance did not show the plaintiff engaged in any vigorous sustained physical activity. [38] None of the medical experts who testified at trial identified any inconsistencies between this video surveillance and their understanding of the plaintiff's reported physical abilities. None suggested that doing

any of the activities shown in the surveillance footage would likely aggravate her symptoms. Dr. Bishop said it was his impression that the plaintiff appeared to be stiff in her gait and not moving easily; he denied that pushing a small child in a stroller on smooth pavement is comparable to pushing against resistance or moving patients from gurneys to examination tables. In Dr. Ailon's opinion, the plaintiff presented in the video surveillance as someone with mechanical back pain. [39] Dr. Wiseman, who once worked as a consultant for GWL, testified that it is impossible to draw any conclusions about the plaintiff's mental health from reviewing the video surveillance put to him in cross-examination; he would not have supported a discontinuation of her benefits based on it. He testified that depression is not always associated with overtly depressive behaviour, noting that the plaintiff demonstrated depressive symptoms only at the end of his lengthy initial assessment, an observation that is consistent with my own at trial. The plaintiff presented as a warm, engaging, and personable individual and became tearful only at the end of her two days in the witness box. [40] Ultimately, I found the video surveillance to be of limited assistance. It did not undermine the plaintiff's credibility in any material way. I accept her evidence that she was attempting to follow the medical

advice she was given to get outside, socialise with others, and engage in activities within her abilities. I agree that plaintiffs cannot be expected to cease living once they commence a lawsuit: Senger v. Graham, 2018 BCSC 257 at para. 20. [41] The lay witnesses who testified on the plaintiff's behalf provided candid, forthright, and responsive answers to questions. I found their evidence to be consistently credible and reliable. [42] The defendant called representatives of VCHA and GWL at trial. Both adopted a fairly narrow view of their own involvement in the plaintiff's case management and were unaware of many relevant details regarding her treatment, course, and status over time. These gaps in their knowledge (which they apparently took no steps to fill before trial) undermined their evidence, which I ultimately found to be of limited assistance.

LIABILITY Causation [43] The plaintiff must establish on a balance of probabilities that the defendant's negligence caused or materially contributed to an injury. The defendant's negligence need not be the sole cause of the injury provided it is part of the cause beyond the range of de minimus. Causation need not be determined with scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at para.

9. The primary test for causation asks: but for the defendant's negligence, would the plaintiff have suffered the injury? The "but for" test recognizes that compensation for negligent conduct should only be made when there is a substantial connection between the injury and the defendant's conduct: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23. [44] The most basic principle of tort law is that the plaintiff must be placed in the same position she would have been but for the defendant's negligence. Tortfeasors must take their victims as they find them, even if the plaintiff's injuries are more severe than they would be for a normal person. However, a defendant need not compensate a plaintiff for any debilitating effects of a pre-existing condition that the plaintiff would have experienced anyway: Athey at paras. 32-35. A defendant is responsible for psychiatric injury that is consequential to the physical injury he caused, even if it was unforeseeable: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 74. [45] The plaintiff rejected all suggestions put to her in cross-examination about other possible causes for her post-Accident physical and mental health difficulties. The medical evidence supported none as probable causes of her ongoing symptoms. The plaintiff had some sports injuries before the Accident including a sprained ankle, broken teeth, and a

fractured wrist. She fell while skiing in about 2013 and "jarred" her neck. None of those injuries interfered with her ability to work. She was involved in many sports before the Accident and attended for periodic massage therapy to maximise her strength, range of motion, and performance on the field. [46] Although Dr. Bishop admitted that contact sports can cause acute disc injury, he testified that acute thoracic disc injury causes significant localised pain and is diagnostically distinct from soft tissue injury (which does not accelerate disc degeneration). Unlike disc pain, soft tissue back pain has a favourable prognosis. Dr. Bishop understood that the plaintiff was receiving massage therapy for soft tissue injuries before the Accident and knew about her pre-Accident ski injury; he explained that massage therapy alleviates muscle pain but not disc pain. Significantly, the clinical notes of the plaintiff's GP do not reference the kind of consistent complaints of pain that Dr. Bishop would expect to see with a disc injury. In his opinion, only trauma explains the plaintiff's multi-level disc pathology; he testified that the Accident injured her thoracic discs, thereby initiating an accelerated degenerative process. He described the post-Accident changes on her MRI studies as "profound", "dramatic", and far greater than what could be attributed to age-related degeneration.

Notably, she reported subjective complaints of pain in the same locations as the most significant degenerative changes demonstrated objectively on MRI. [47] In cross-examination, Dr. Ailon testified there is no definitive evidence to support the conclusion that degenerative changes progress more quickly in individuals who engage in vigorous sports. He found it difficult to interpret the pre-Accident clinical notes of the plaintiff's massage therapist but noted that "whiplash" is not synonymous with mechanical back pain. Although the clinical notes of the plaintiff's GP lacked sufficient detail to permit Dr. Ailon to diagnose her pre-Accident pain, he confirmed they do not suggest a back or neck pain syndrome. It was significant to him that the plaintiff's pre-Accident ski injury resulted in no missed work, no imaging studies, and no specialist referrals. Accordingly, he concluded it was mild. [48] In Dr. Wiseman's opinion, the plaintiff would likely have remained psychologically stable absent the Accident. [49] In closing submissions, the defendant admitted causation was not an issue. I find that the Accident caused the plaintiff's physical and psychiatric injuries, including her chronic back and neck pain, headache, MDD, GAD, PTSD symptoms, nightmares, impaired sleep, and fatigue. The medical evidence regarding the cause of the plaintiff's leg symptoms is inconclusive; I find that the plaintiff has not established that the Accident caused them.

DAMAGES Failure to Mitigate [50] The defendant argues that the plaintiff's decision to return to Ireland in March 2019, instead of continuing her employment with VCHA, was unreasonable and supports the conclusion that she has failed to mitigate her damages. Accordingly, the defendant says that the plaintiff is entitled to no past income loss after August 2019, and that her future loss of earning capacity claim must be substantially discounted. [51] Specifically, the defendant submits: a) If the plaintiff had remained in Vancouver, VCHA would have accommodated her with a suitable position, part-time work, or job re-training, failing which she could have filed a grievance with her union; b) The plaintiff's injuries do not prevent her from functioning without the kind of support network she has in Ireland because: i. She has continued to work during the current Covid-19 pandemic, without returning to her parent's home on week-ends; and ii. She travelled from Ireland to Vancouver and self-quarantined for 14 days to attend the trial of this action; and c) She had adequate financial resources and support when in Vancouver because: i. She kept her Vancouver apartment until September 2019; ii. Her sister and brother-in-law assisted her financially; and iii. She did not request any review of GWL's decision to terminate her LTD benefits. [52] The defendant relies on the evidence of

Katelyn Panesar, VCHA employee health placement advisor. Ms. Panesar became involved in the plaintiff's case management in June 2019, after the plaintiff had returned to Ireland. She testified that, if VCHA is unable to accommodate sick or injured employees with modified job duties, it considers allied health roles or job retraining. Ms. Panesar said that VCHA did not accommodate the plaintiff because she initially reported being unable to return to work and later resigned her position at the end of an unpaid leave of absence, taken pending her appeal of the termination of her LTD benefits. [53] In cross-examination, Ms. Panesar admitted that she was unaware of any of the plaintiff's medical assessments or treatment after March 2019. She was not involved in VCHA's February 11, 2019 Approved Rehabilitation Plan for the plaintiff. She deferred to the opinions of the physicians involved in the plaintiff's care regarding her capacity to work; she identified none who concluded that the plaintiff was able to return to work before the summer 2019. No such admissible opinion evidence was adduced at trial. Ms. Panesar agreed that patient and employee safety is a paramount concern for VCHA when considering accommodated work placements. She was unaware that the plaintiff had found an OT position in Ireland. [54] The defendant also called Kathy Kuk, GWL disability claims case manager, to

testify at trial. On February 28, 2019, Ms. Kuk informed the plaintiff that GWL had terminated her LTD benefits. In her termination letter, Ms. Kuk referenced the hearsay opinions of various health care professionals, not admissible in evidence for their truth at trial. Ms. Kuk confirmed that the plaintiff's appeal of the termination of her LTD benefits was denied and that she sought no review of this decision within the applicable 2-year limitation period. [55] The plaintiff argues that the termination of her LTD benefits is a red herring, noting there is no evidence that it caused or contributed to any injuries which impair her ability to work. The plaintiff must reimburse GWL for all benefits paid pursuant to a subrogation agreement; accordingly, she says that, if she had sought a review of the decision terminating her LTD benefits, she would simply be required to reimburse GWL more now. While she maintains that GWL's decision was unwarranted on the medical evidence, she denies it has any bearing on her damages claim, observing that the defendant did not add GWL as a third party in this action, and would not have been justified in doing so. The plaintiff testified that she understood her union continued to advocate for the reinstatement of her LTD benefits after she had left for Ireland in March 2019. She says the continued payment of LTD by GWL became irrelevant once she

found a job in August 2019. [56] The defendant relies on four cases to support his failure to mitigate argument: Willis v. Bernard L. Mailman Projects Ltd., 2007 NSSC 207; Leenstra v. Miller (1994), 92 B.C.L.R. (2d) 366 (C.A.); Delgiglio v. Myers, [1993] B.C.J. No. 1371; Cheevers v. Van Norden (1980), 42 N.S.R. (2d) 337. I conclude that all are distinguishable on their facts. [57] In Willis and Leenstra, the plaintiffs refused "real" offers of specific positions within their capabilities. In Leenstra, at para. 21, the trial judge stated that "at the very least, [the plaintiff] should have attempted to return to work, retrain, or upgrade his education" and that "none of this was done". By contrast, there is no evidence that VCHA offered the plaintiff an accommodated position within her capabilities that she refused. [58] In Delgiglio, the trial judge found that the plaintiff ought to have mitigated his losses by pursuing employment at a tolerable level of activity and failed to do so, noting he could have turned to his union for assistance. In the case before me, the plaintiff did seek her union's assistance before she found a full-time accommodated OT position on her own. [59] In Cheevers, the plaintiff did not follow medical advice to wear a cervical collar; the trial judge found she could have but failed to file a grievance with her union, disputing the requirement to wear

one. In the case at hand, there is no evidence that the plaintiff failed to comply with any medical advice. [60] On the evidence, the only accommodated position that VCHA offered the plaintiff was part-time work at the Arts Studio, a position that both Dr. LePage, the psychologist retained by VCHA to assess the plaintiff, and Dr. Wiseman, confirmed she could not do. There was no admissible expert medical evidence to the contrary adduced at trial. There is no evidence that VCHA ever offered the plaintiff an accommodated position that she was capable of doing but refused. [61] I conclude that the evidence supports the reasonableness of the plaintiff's decision to return to Ireland in March 2019. Her mental health improved with the support of her extended family and she found accommodated work there within about six months. There is no evidence that she would now be working in a more lucrative accommodated position in Vancouver if she had not returned to Ireland in 2019. Similarly, there is no evidence that her current medical condition would be better if she had remained in Vancouver. [62] In closing, the plaintiff argued that much of Ms. Panesar's evidence was not put to her in cross-examination, thereby offending the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). The plaintiff did not request an opportunity to be recalled in order to respond to Ms. Panesar's evidence. As I have

found the defendant has not met the onus of proving a failure to mitigate, it is unnecessary to address this evidentiary objection. General Damages [63] Non-pecuniary damages compensate a plaintiff for pain, suffering, and the loss of enjoyment of life and amenities. The compensation must be fair to all parties. Fairness is measured against awards in comparable cases; while helpful, these authorities serve only as a rough guide. Each case depends on its own unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189. [64] The Court of Appeal outlined the non-exhaustive factors to be considered when assessing non-pecuniary damages in Stapley v. Hejslet, 2006 BCCA 34, at para.

46. They include the plaintiff's age, the nature of the injury, the severity and duration of pain, disability, emotional suffering, loss or impairment of life, impairment of family, marital and social relationships, physical and mental abilities, loss of lifestyle, and stoicism, a factor which generally ought not to penalise a plaintiff: Giang v. Clayton, 2005 BCCA 54 at paras. 54-55. [65] The plaintiff, who turned 33 this summer, has significant ongoing mental health and physical difficulties almost four years after the Accident. She is no longer involved in any sports. Her recreational, social, and work life has changed. Before the Accident, those who knew her consistently described the plaintiff as bright, outgoing, and confident. Her older sister said she was "strong and sporty", emotionally mature, and the "life and soul of everything". By all accounts, she enjoyed the challenges of her OT work in both a large complex hospital setting and in private clinics. She was pursuing her passion of working with children. By contrast, the undisputed evidence indicates that the plaintiff is now frequently sad, teary, and tired, irritable, anxious, and frustrated by things that she would previously have taken in stride, and generally less engaged in life. Her mother and older sister testified that the plaintiff lost something of herself after the Accident; both worry about her

future. [66] Dr. Bishop confirmed that the plaintiff's MRI studies demonstrate objective evidence of profound, progressive, traumatic spinal injury. He testified that her spine will degenerate at an accelerated pace over time, further limiting her function. Neither he nor Dr. Ailon expect treatment to improve the condition of her spine. Dr. Bishop described her prognosis as poor. On Dr. Wiseman's undisputed evidence, she remains at significant risk of relapse of her major depressive and post-traumatic symptoms. He testified that, with treatment, she may be able to decrease her suffering. [67] I am satisfied that the plaintiff has suffered a substantial loss. The Accident negatively affected virtually all aspects of her life. She felt compelled to abandon her newfound independence and the life she had made for herself in her new home, seeking refuge in the support of her extended family in Ireland. In doing so, she took a professional step backwards, trading the challenges on which she had previously thrived for a more sedate pace and a less demanding position. She gave up her sports, her career goals, and her recreational, social, and professional network. She lost confidence, courage, and the source of much of the joy in her life. She now shares accommodation with her younger sister and others in Dublin, returning (until the recent pandemic prevented her from doing so) to her

parents' home on the weekend to sleep and to recover from her workweek. She is single and finds it difficult to connect with others now that she is no longer involved in the active lifestyle she once enjoyed. [68] The plaintiff relies on the following decisions: Kallstrom v. Yip, 2016 BCSC 829; Sebaa v. Ricci, 2015 BCSC 1492; and Pololos v. Cinnamon-Lopez, 2016 BCSC 81. The plaintiffs in those cases suffered chronic physical and psychological injuries and were awarded non-pecuniary damages of $180,000; in Kallstrom, this figure included compensation for a loss of homemaking capacity. The plaintiff also cites Gill v. Apeldoorn, 2019 BCSC 798, a case where the 44-year-old plaintiff suffered life-altering chronic pain and psychological injuries. He did not return to work, and was awarded non-pecuniary damages of $200,000. [69] The defendant references Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82 and Brown v. Mitchell, 2017 BCSC 125, cases involving plaintiffs with physical and psychological injuries who were awarded non-pecuniary damages of $100,000 (including $10,000 for loss of housekeeping capacity) and $120,000, respectively. Neither party adjusted the damage awards in these cases to account for inflation. [70] While the cited authorities provide some guidance, none is determinative. Each case must be decided on its own unique facts. I generally find the authorities cited by

the plaintiff to be more closely aligned on their facts to the case before me. Having regard to the plaintiff's young age, her chronic back pain, the severity, permanence, and progressive nature of her life-altering spinal injuries, the limited efficacy of available treatment options, and the substantial corresponding likelihood of a relapse in her mental health symptoms over time, I award non-pecuniary damages of $200,000. Although this exceeds the general damage awards in three of the four decisions relied on by the plaintiff, I note those cases were decided four or five years ago. Loss of Housekeeping Capacity [71] A loss of housekeeping capacity can be compensated by a pecuniary or non-pecuniary award: Kim v. Lin, 2016 BCSC 2405 aff'd 2018 BCCA 77. In quantifying this loss, a plaintiff is not required to prove that she will hire replacement labour to perform the duties she is unable to do because of a diminished capacity: McTavish v. MacGillivray, 2000 BCCA 164. A loss of housekeeping capacity claim is to be assessed generally and not calculated precisely: Campbell v. Banman, 2009 BCCA 484 at para. 26. [72] The plaintiff seeks $185,000 for past and future loss of housekeeping capacity, calculated based on $20/hour x 5 hours/week x 52 weeks/year for a total of $5,200/year (to age 107, based on the lifetime multiplier of her economist expert). Using those figures, she

assesses her past loss of housekeeping capacity to be $18,000, and the present value of her future loss to be $167,000, for a total of $185,000. The defendant suggested a nominal award of $10,000 would be appropriate. [73] Before the Accident, the plaintiff was living with her former partner who occasionally cooked but left all other housework to her. Since the Accident, while living with family, she has made no financial or other contributions to those households, or been required to perform the kind of housework that would have fallen to her if she had been living independently. However, the evidence falls short of establishing that others undertook any significant housekeeping tasks, in addition to those they would have completed in any event, even if the plaintiff had not been living with them. There was no detailed evidence about specific household tasks the plaintiff is currently unable to perform; there was evidence about her physical, emotional, and mental health difficulties since the Accident. On the expert medical evidence, her reported physical limitations are consistent with her objective injuries and are likely to persist and to progress. [74] The evidence does not suggest that the plaintiff is unable to do any housework; rather, she has benefited from living with family members who have managed the domestic chores in their households, without her assistance. With

counselling, better sleep, and improved mental health, the plaintiff may enjoy increased stamina and function. The same might be true if she were working less than full-time hours as an OT. [75] The evidence persuades me that the plaintiff has suffered a loss of housekeeping capacity as a result of the Accident and that the effect of this loss will likely become more profound as her spinal condition deteriorates, and if she decides to live independently or to start her own family. I have considered the plaintiff's injuries and her corresponding physical and mental limitations in assessing general damages, including those which impair her ability to perform domestic chores: Riley v. Ritsco, 2018 BCCA 366; Liu v. Bains, 2016 BCCA 374. I conclude that this non-pecuniary award is sufficient to compensate the plaintiff for any past and future loss of housekeeping capacity. Special Damages [76] The defendant admits special damages of $10,000. Past Loss of Income [77] Compensation for past loss of earning capacity is based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; M.B. v. British Columbia, 2003 SCC 53 at para. 49. [78] Pursuant to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, a plaintiff is entitled to recover damages for net past income loss only. This means

that in the ordinary course the court must deduct the amount of income tax payable from lost gross earnings: Hudniuk v. Warkentin, 2003 BCSC 62. The trial judge has the discretion to determine what period(s) of time are appropriate for the determination of net income loss: Lines v. W.D. Logging Co. Ltd., 2009 BCCA 106 at paras. 181-186. When exercising this discretion, a trial judge must remember that the plaintiff is to be returned to the position she would have been in if the accident had not occurred (Lines at paras. 185-186). [79] The burden of proof regarding actual past events is a balance of probabilities. An assessment of loss of both past and future earning capacity involves consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. Future or hypothetical possibilities will be considered, if they are real and substantial and not mere speculation: Athey v. Leonati at para. 27; Morlan v. Barrett, 2012 BCCA 66 at para. 38. [80] Labour economist, Sergiv Pivnenko, was qualified as an expert in the assessment of economic loss. He prepared a May 27, 2020 report, setting out past and future income loss projections. He provided two estimates of the plaintiff's without-Accident earnings, assuming she would have continued to work as an OT in B.C. if the Accident had not occurred: a) Scenario 1: she would

have worked full-time for VCHA and earned an additional $23,040 of private OT income (based on $60/hour x 8 hours/week x 48 weeks/year); and b) Scenario 2: she would have worked full-time with VCHA, doing no part-time private OT work, until October 31, 2019, when she would have transitioned to the private sector full-time, earning $138,240/year (based on $120/hour, less 40% for expenses, x 40 hours/week x 48 weeks/year). [81] These assumptions produce estimates of pre-tax earnings from the Accident to the date of trial in the amount of $368,143 (Scenario 1) and $319,442 (Scenario 2). Mr. Pivnenko did not adjust these figures for positive or negative labour market contingencies. [82] Mr. Pivnenko calculated the plaintiff's entitlement to wage increases as a VCHA employee based on the applicable collective agreement. He estimated her loss of pension separately and assessed the value of non-wage benefits applicable to public sector income to be about 15%. He converted euros to Canadian dollars and suggested adjusting these figures to allow for parity of purchasing power between Ireland and Canada (i.e., Cost of Living Allowance or "COLA" adjustments). He agreed in cross-examination that the COLA adjustment is dependant on many factors and fluctuates over time. If it were assumed that the plaintiff would have moved from Dublin to a smaller centre in Ireland (or from Vancouver to a

smaller centre in Canada) his coefficient would change. [83] The defendant called economist, Mark Gosling, who was also qualified as an expert in the estimation of economic loss. He prepared a response report dated June 12, 2020, commenting on Mr. Pivnenko's estimates of past income loss as follows: a) The plaintiff was earning $14,360 per year in part-time private OT income at the time of the Accident (or $8,680/year less than the $23,040 figure assumed by Mr. Pivnenko); b) Based on 2016 Census data, an average B.C. female with a bachelor's degree, working full-time as an OT, earned $77,193 in 2015. Mr. Gosling estimated those earnings would be about 12% higher in 2020 (i.e., $86,456). Accordingly, he concluded the full-year earnings assumed by Mr. Pivnenko are 26 to 60% higher than average; c) Mr. Pivnenko's estimates are not discounted to reflect the plaintiff's actual with-Accident earnings, calculated by Mr. Gosling to be $74,515 (CAD); d) Mr. Pivnenko's estimates reflect pre-tax incomes and are not discounted for income tax and employment insurance contributions; and e) Unlike Mr. Gosling's economic multipliers, Mr. Pivnenko's employment income multipliers include no labour market contingencies (i.e., non-participation in the labour force, unemployment, and part-time work). [84] The plaintiff argues that, absent the Accident, she would have continued to work full-time

with VCHA, and done some private OT work. She seeks damages for past income loss of $240,000, calculated as follows: a) VCHA Income (including pension and benefits, calculated at 15%): $325,000; b) Private OT Income: $35,000 (estimated based on gross business income of approximately $5,000 in the first half of 2017, $5,000 in the second half of 2018, $10,000/per year from 2018 to 2019, and $20,000/year in 2020); c) Sub-total: $360,000 Less: d) Dublin income: $60,000 (approx.) (i.e., $79,552 (CDN) pro-rated by 75% to reflect 9 of 12 months worked from August 2019 to the date of trial); e) Discounted by 20% for tax: $60,000 f) Net Past Income Loss: $240,000 [85] The defendant admits the plaintiff lost 4,797.5 hours of work between November 24, 2016 and November 28, 2019, representing $261,981.74 of foregone income, including benefits and pension. He assesses the plaintiff's net past loss of income to be $190,514.63, calculated as follows: a) $261,981.74: November 24, 2016 to November 28, 2019 (1,099 days at $238/day); Less: b) $23,838.20 (i.e., 100 days at $238/day from August 20, 2019 to November 28, 2019, when the plaintiff was employed in Ireland) c) Discounted by 20% for tax: $47,628.91 d) Net Past Income Loss: $190,514.63 [86] The parties' estimates of past income loss are approximately $50,000 apart. Two of the defendant's assumptions largely account for this difference:

(1) the plaintiff has no compensable loss after August 2019 (when she accepted a job in Ireland); and (2) she would have earned no private OT income because she reported no net business income on her pre-trial tax returns. The plaintiff testified that she deducted from her gross business income as business expenses costs that she would have incurred in any event (ex. her vehicle, telephone, and rent), thereby effectively reducing her net taxable business income to zero. [87] I find that the plaintiff would likely have continued to work full-time for VCHA absent the Accident to the date of trial. Both parties assume that she would have done so. On the evidence of those who knew her before the Accident, the plaintiff was an energetic, motivated, and ambitious young woman who had a clear idea of what she wanted to accomplish and how she planned to do so. She liked her job, did it well, and was accumulating the work experience she needed to advance her career goals. I accept $325,000 as a reasonable estimate of her lost pre-trial VCHA income (based on the figures contained in the parties' agreed statement of facts and the admitted collective agreement wage schedule), inclusive of pension and non-wage benefits, estimated at 15%, a figure both economists accepted as reasonable. For the reasons set out above, I do not agree past income loss is appropriately truncated effective August

20, 2019, as I have found no failure to mitigate on the part of the plaintiff. [88] I also find that the plaintiff would probably have continued to work privately as an OT in Vancouver, absent the Accident, to the date of trial. She was passionate about this work and good at it. By adding private OT clinic experience to her resume, she was expanding her professional network and advancing her career goal of opening her own private OT practice. [89] I conclude that $30,000 is a reasonable estimate of the plaintiff's without-Accident pre-trial gross business income, based on her 2017 tax return (i.e., approximately $5,000/year in the second half of 2017, $10,000/year in 2018 - 2019, and $5,000 for the first half of 2020.) My estimate of past income loss assumes that the plaintiff would have continued to work full-time for VCHA and privately for two employers on the same basis as she did before the Accident to the date of trial. [90] Absent the Accident, I conclude the plaintiff would have remained actively involved in the many sports activities she enjoyed, including basketball, field hockey, and Irish football practices, games, tournaments, and related social events. The plaintiff testified that she was also actively involved in continued medical education. On her evidence, she was responsible for most of the domestic chores in her home. She had a partner, a sister in Vancouver

with whom she was close, and a young nephew. She would have required some time to manage the usual activities of daily living. She testified that there were insufficient hours in the day for her to do all the private OT work then available to her. While private OTs were apparently in demand, I conclude that the plaintiff's days were already full and that she would not likely have been able to accommodate much, if any, additional pre-trial part-time OT work while working full-time for VCHA, absent the Accident. Based on her tax returns, as set out in the parties' agreed statement of facts, the plaintiff's gross business income actually declined between 2014 and 2016, a drop that corresponded with an increase in her T4 income over the same period. She reported zero net business income from 2015 to 2017. While I accept that the plaintiff may have been able to attract a higher hourly rate for her private OT work over time, the evidence does not permit me to quantify any such increase, beyond mere speculation. [91] The plaintiff applies no discount for business expenses to her $35,000 estimate of gross business income; the defendant effectively discounts this income by 100%. I do not accept that the plaintiff's net business income was zero based on her pre-trial tax returns. On the plaintiff's evidence, I conclude that she benefited by deducting from her gross business income

mixed-use expenses that she would have incurred in any event, as business expenses. [92] Estimated gross business income of $30,000 (less 40%, or $12,000, for estimated business expenses, based on the report of Mr. Pivnenko) combined with estimated VCHA income of $325,000, results in total past without-Accident income of approximately $343,000. If the Canadian dollar equivalent for the plaintiff's pre-trial Dublin income (approximately $74,515, as calculated by Mr. Gosling) is subtracted, and the balance ($268,485) is discounted by 20% for tax ($53,697), net past income loss equals $214,788. I conclude $215,000 is a reasonable estimate of the plaintiff's net past income loss and award damages in this amount. Future Loss of Income [93] Estimated future income loss is the category of damages that separates the parties most significantly. The plaintiff seeks $2,000,000; the defendant estimates this loss in the range of $155,853 (after applying a 10% discount to the estimated lifetime earnings of an average female OT in B.C.) to $175,000 (based on approximately two years of her annual VCHA salary plus benefits). [94] A claim for loss of future earning capacity raises two key questions: 1) has the plaintiff's earning capacity been impaired by her injuries; and, if so 2) what compensation should be awarded for the resulting financial harm that will accrue over time? The assessment of

loss must be based on the evidence, and not the application of a purely mathematical calculation. The appropriate means of assessment will vary from case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett, 2009 BCCA 232 at para. 19. [95] The assessment of damages is a matter of judgment, not calculation: Rosvold v. Dunlop, 2001 BCCA 1 at para.

18. To the extent possible, the plaintiff should be put in the position she would have been in but for the injuries caused by the defendant's negligence: Lines at para.

185. The court's essential task is to compare the plaintiff's likely future working life with and without the Accident: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32. [96] There are two possible approaches to the assessment of loss of future earning capacity: the "earnings approach" from Pallos, and the "capital asset approach" in Brown. Both are correct. The "earnings approach" is generally more useful when the loss is easily measurable: Perren v. Lalari, 2010 BCCA 140 at para.

32. When the loss "is not measurable in a pecuniary way", the "capital asset" approach is more appropriate: Perren at para.

12. The earnings approach involves a form of math-oriented methodology such as: i) postulating a minimum annual income loss for the plaintiff's remaining years of work, multiplying the annual projected loss by the number of remaining years and calculating a present value; or ii) awarding the plaintiff's entire annual income for a year or two: Pallos; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233. [97] The economists' estimates of the plaintiff's lifetime earnings, with and without the Accident, provide a useful starting point in the analysis. Mr. Pivnenko estimates the present value of the plaintiff's without-Accident lifetime earnings based on two scenarios: i. Scenario 1: She would have continued to earn the same income as immediately before the Accident (i.e., full-time VCHA income and private OT work of $480/week for a total annual income of $108,776) to age 65: $2,727,340; and ii. Scenario 2: Effective November 1, 2019, she would have transitioned to full-time private OT work, earning 60% of $120/hour (i.e., $72/hour) x 40 hours/week x 11 months/year to age 65: $3,466,100. [98] The plaintiff argues that both of these scenarios were realistic before the Accident and that neither one is now. Mr. Gosling comments on these estimates as follows: a) Mr. Pivnenko assumes full-time, full-year earnings of $108,776 (Scenario 1) or $138,240 (Scenario 2), which exceed the average

earnings for B.C. females with a bachelor's degree working as OTs by 26% to 60%; b) Mr. Pivnenko does not adjust these estimates for labour market contingencies. He considers the impact of unemployment and involuntary part-time work only (estimated at about 8.5%), but applies no contingency for non-participation in the work force. Based on 2016 Census data for B.C. females with a bachelor's degree (excluding law), the average impact of labour market contingencies from the date of trial to a maximum working age of 70 is about 41%; and c) Mr. Pivnenko's future earnings projections are about 79% to 103% above average. Mr. Gosling estimates the present value of average future earnings for a B.C. female OT with a bachelor's degree to be $1,558,532. [99] Mr. Pivnenko estimates the present value of the plaintiff's with-Accident lifetime future earnings based on two scenarios: i. Scenario 1: She will continue to earn a salary comparable to her current full-time income ($2,293,784), with two months off work each year for medical absences or when between employment contracts (i.e., 37 hours/week x 10 months/year): $1,911,491 or $1,662,170 (adjusted for COLA); and ii. Scenario 2: She will work part-time at her current salary ($1,549,858), with two months off work each year (i.e., 25 hours/week x 10 months/year): $1,291,544 or $1,123,080 (adjusted for COLA). [100] Comparing these with and

without-Accident estimates of her lifetime earnings, the plaintiff assesses her net loss to be in the range of $1 to $3 million. She does not factor in the loss of pension or benefits, conceding that doing does not change the relative difference in her estimated loss. She argues that her income loss will increase if she is unable to work substantially or at all as an OT. [101] Mr. Gosling comments on Mr. Pivnenko's estimates as follows: a) His unemployment contingency is about four times the average unemployment rate for B.C. females with a bachelor's degree (excluding law). Mr. Gosling would not expect unemployment of 16.7% to persist throughout the plaintiff's career; b) Mr. Pivnenko uses a part-time contingency of 32%; Mr. Gosling estimates the average part-time contingency to be 17.9%; and c) Mr. Pivnenko does not include any wage loss replacement benefits (which Mr. Gosling notes could be substantial if the plaintiff is unemployed for two months of each year throughout her future career). [102] Mr. Pivnenko's estimates are adjusted for geographical earnings differences between Dublin, Ireland and Vancouver, B.C. Mr. Gosling comments as follows: a) Mr. Pivnenko reduces his with-accident projections by about 13% to account for the higher cost of living in Ireland. Mr. Gosling is aware of no information to suggest that the plaintiff was ineligible to remain in Canada because

of the Accident. If her decision to return to Ireland was voluntary, it might be more appropriate to use absent-Accident and with-Accident earnings figures for the same geographical location (which would eliminate the need to apply a COLA adjustment); and b) Based on an exchange rate of 1.52 CAD/Euro, Mr. Gosling estimates the plaintiff's current full-time, full-year salary to be $91,484 (CAD) which compares favourably to his estimated average earnings for B.C. females with a bachelor's degree working as OTs of $86,456. [103] The plaintiff testified that she would like to return to Vancouver. Doing so remains part of her 2021 plan; she applied for Canadian citizenship in February 2020. On her evidence, there are more public and private sector OT job opportunities in Canada than in Ireland. Ms. Walsh testified that many private hospitals in Ireland do not have an OT on staff and that few OTs work privately in Ireland. [104] I find that there is a real and substantial possibility that the plaintiff will return to Vancouver to work at some point in the future. Following the resolution of this claim, she will no longer face the same financial pressures that she did previously. Her mental health has improved since the Accident and she has benefited from additional counselling. She still has connections in Vancouver including, notably, her older sister's family. While I accept that

the plaintiff's decision to return to Ireland after the Accident was a reasonable one, I do not find that doing so was required because of the Accident. Rather, it was a reasonable choice that she made. Nor am I persuaded that she is required to remain in Ireland indefinitely because of the Accident. Accordingly, I have not applied a COLA adjustment to account for the geographical earnings differences between Canada and Ireland in my assessment of her future income loss claim. [105] The plaintiff's current contract position expired at the end of July 2020. In cross-examination, Ms. Walsh admitted this contract might be extended if the person the plaintiff has been replacing does not return to work. Ms. Walsh estimated that a therapy assistant helped the plaintiff with 40 to 50% of her caseload. She and the plaintiff both testified there were many physically demanding and emotionally draining aspects of her OT job. According to Ms. Walsh, the plaintiff has great potential that is not being realised because of her health limitations. That statement is consistent with the evidence of Drs. Wiseman and Bishop. [106] Dr. Wiseman conceded in cross-examination that the plaintiff might be able to work with stable mental health patients and autism patients who have no significant behavioural issues and who fall at the mid to low end of the spectrum. Dr. Wiseman does not foresee her being

capable of working with highly traumatised, violent, or suicidal patients; he concludes that her post-Accident work capacity is substantially diminished. In cross-examination, Dr. Bishop recommended that the plaintiff find a managerial position, with no hands-on OT work; in his opinion, her current job is not sustainable. [107] I conclude that the plaintiff has suffered a loss of income earning capacity because of the Accident. It is clear on the evidence that all the criteria in Brown are met. The challenge is to assign a value to this loss. Regardless of how it is measured, I accept that it is significant. While I find that the plaintiff remains able to work within her field, she is no longer capable of the full range of job duties that she could perform before the Accident. On the expert medical evidence, these limitations will persist indefinitely and are likely to worsen over time. [108] Before the Accident, the plaintiff had a demonstrated commitment to the work force and a well-defined career path. She was a hardworking, energetic, and talented OT who excelled at her job. In November 2016, at the age of 29, after only three years in Vancouver, she was working full-time with VCHA, part-time for two private employers, and taking concrete steps towards fulfilling her five-year plan of opening her own private OT clinic. She was gaining valuable experience, earning the

respect of her professional colleagues, and making connections within the local Irish community, the Catholic school board, and with her employers and private clients. On the evidence, it appears that she was poised for success in her chosen career before the Accident. [109] Sarah Howard, the owner of Mosaic, planned to renew the plaintiff's contract before the Accident; she and the plaintiff had engaged in informal discussions about a possible OT partnership. Ms. Howard described the plaintiff as an excellent, talented, and innovative employee who was loved by her patients and their parents, had a "deep passion" for her work, and went "above and beyond" in the performance of her job duties. Ms. Howard had a waiting list and referred clients whom she could not accommodate to other OTs. If the Accident had not occurred, it is reasonable to infer that she would have referred such clients to the plaintiff. The evidence persuades me that the plaintiff had the energy, initiative, and resilience that Ms. Howard and private OT clinic owner, Pamela Russell, both suggested OTs require in order to thrive in their work. The plaintiff's accomplishments in the three years following her arrival in Canada immediately before the Accident were objectively impressive. By all accounts, she appeared to be on the cusp of a promising career. I conclude there is a real and substantial possibility

that, but for the Accident, she might have transitioned from the public to the private sector and opened her own private clinic. I am satisfied on the evidence of the plaintiff, her family members, the medical experts, Ms. Howard, and Ms. Russell that doing so now is likely unrealistic. [110] The plaintiff's post-Accident work future looks fundamentally different. Her chronic back pain interferes with her ability to perform her hands-on OT job duties. Her anxiety undermines her confidence and she no longer has the same energy, stamina or drive. I accept the evidence of the plaintiff, Ms. Howard, Ms. Russell, and the medical experts that the job of an OT is unpredictable, imposes significant physical and cognitive demands, and does not fit neatly into a standard job description. The undisputed medical evidence indicates that the plaintiff's disc degeneration will progress, resulting in further physical limitations. I accept the evidence of Dr. Wiseman that her ongoing generalised anxiety is likely to magnify her perception of pain, further impairing her function, that she remains at significant risk of relapse for a major depressive disorder given her ongoing pain and reduced resilience, and that she faces an increased risk of PTSD if exposed to new trauma. [111] I am satisfied that the plaintiff's physical and mental health difficulties impair her ability to work as an OT and

limit her vocational opportunities. I accept the evidence of Dr. Wiseman that she is no longer equipped to manage the demands of working with severely ill mental health patients. On the evidence of the plaintiff, her family, Ms. Walsh, and Drs. Wiseman and Bishop, I conclude that her full-time OT position, even with accommodations, assistance, and substantial time off work for medical reasons, is depleting her energy reserves. Her August 2019 to May 2020 attendance record was in evidence. If days taken off work to travel to Vancouver for this lawsuit are excluded, and (based on the plaintiff's evidence) vacation days are included as sick days, this document suggests that she missed 57/282 days of work (i.e., approximately 20%) in this nine month period. Ms. Walsh testified that this document might not include all of the plaintiff's days off. [112] The plaintiff argues that it would be a mistake to calculate her future loss of income based on a projection of her current earnings, noting that every aspect of her situation (including her job, health, and accommodation) is temporary and that she is barely coping. Dr. Wiseman agreed that the plaintiff is managing at a significant personal cost; Dr. Bishop described her current position as unsustainable. The plaintiff notes that she has not worked for 34 of the 43 months since the Accident, that it took her almost three years after

the Accident to find an accommodated OT position in Dublin, and that doing so required her to relocate to Ireland and to discontinue most of the recreational and social activities that she previously enjoyed. [113] I conclude that Mr. Gosling's estimates, based on the average lifetime earnings of female OTs in B.C. and average female labour market contingencies, undervalue the plaintiff's future income loss. Doing so does not reflect her actual pre-Accident career trajectory, which was objectively above average. I find there is a real and substantial possibility that it would have remained so absent the Accident. Neither Mr. Pivnenko nor Mr. Gosling provided information regarding the average lifetime earnings of male OTs in B.C. or applicable male labour market contingencies. [114] However, I also note that, immediately before the Accident, the plaintiff was young, in the early stages of her career, and working hard to accumulate experience, build her reputation, and establish contacts. I conclude there is also a real and substantial possibility that she would not have continued to work at the same pace indefinitely, throughout her entire career, particularly if she started her own family. While the plaintiff testified that she would have returned to work promptly after having children, and that her mother worked full-time while raising three children, I find there is a real

and substantial possibility that those plans might have changed for any number of reasons if she became a parent. [115] I recognise that the plaintiff's spinal condition will progress, is associated with a poor prognosis, and may ultimately prevent her from doing the physical components of an OT job. However, I am not persuaded that she will necessarily be absent from work for two months every year for the rest of her career. Such an assumption overlooks the real and substantial possibility on her own evidence that she might find a managerial or educational position (which would not present the same physical challenges as hands-on OT work) and Dr. Bishop's suggestion that she retrain or find less physically onerous work. The plaintiff admitted that OT jobs with fewer physical demands exist. On all the evidence, she is an intelligent, experienced, and capable OT. I conclude there is a real and a substantial possibility that she will reposition herself in the workforce, retrain, or secure less physically demanding work within the scope of her expertise, thereby potentially managing to work full-time hours, without exhausting her reserves and without the need to take an additional two months off every year. [116] While the economists' estimates offer useful reference points, I conclude that none perfectly captures the plaintiff's likely with and without-Accident projected

earnings. Many positive and negative contingencies could alter these projections. The plaintiff's without-Accident pattern of income earning in the early stages of her career might not have continued unaltered throughout her career, particularly given the physical demands of her OT work that might have proved more challenging as she aged. While projecting future income based on her pre-Accident earnings might overstate her loss (if she decided not to work more than full-time hours indefinitely), arguably, this could be considered a conservative approach as it allows for no growth over the course of her career. The plaintiff's without-Accident future income might have exceeded her pre-Accident earnings if she succeeded in establishing a lucrative private OT practice. The plaintiff testified that she has an entrepreneurial family. [117] I have considered the application of a disability impairment factor to the plaintiff's lifetime without-Accident future earnings. On Mr. Gosling's evidence, doing so avoids geographical earnings differences and eliminates the need to apply a COLA adjustment to estimated future income loss. [118] The plaintiff proposes a minimum discount of 50% (which, based on a loss of $55,000/year to age 65, discounted to present value, results in future income loss of $1,379,015). The defendant suggests a nominal discount of 10% (which results in an estimated

loss of $155,853). I conclude that this estimate of future income loss (for a period of more than 30 years to age 65) is disproportionately low when compared to the defendant's estimate of pre-trial income loss (for approximately three and a half years) of $190,514. [119] If it is assumed that the plaintiff can now work 25 hours a week (instead of the 37 hours/week contemplated by her current full-time position), that reflects a 33% reduction in work capacity. Applying a disability impairment factor of 40% (to reflect additional time off work for health reasons) to estimated without-Accident lifetime earnings in the range of $2.5 million (i.e., about $1 million above those of an average female OT in B.C.) to $3 million (about twice that of an average female OT in B.C.) results in estimated future income loss in the range of $1 to 1.2 million. Changing this disability impairment factor to 45% increases the range of estimated future income loss to $1,125,000 to $1,350,000. [120] Having regard to positive and negative contingencies, I assess the plaintiff's future income loss to be $1.2 million. In doing so, I have considered the chronicity and severity of her permanent degenerative spinal condition, her young age, her pre-Accident work history and job performance, the previously promising career that is now largely foreclosed to her, and the cumulative effect of her injuries on

her remaining years of work. I am satisfied that this figure is a fair and reasonable estimate of her loss of future income earning capacity. Future Care Costs [121] A plaintiff is entitled to compensation for the cost of future care based on what is reasonably necessary to restore her to her pre-accident condition to the extent that is possible. When this is not possible, the court must strive to assure full compensation through the provision of adequate future care. The award is to be based on what is reasonably necessary on the medical evidence to preserve and promote the plaintiff's mental and physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC 1104; Gignac v. Rozylo, 2012 BCCA 351 at paras. 29-30. [122] The extent, if any, to which a future care costs award should be adjusted for contingencies depends on the specific care needs of the plaintiff. In some cases negative contingencies are offset by positive contingencies and, therefore, a contingency adjustment is not required. In other cases, however, the award is reduced based on the prospect of improvement in the plaintiff's condition or increased based on the prospect that additional care will be required. Each case must be determined on its particular facts: Gilbert at para.

253. An assessment of damages for cost of future care is not a precise accounting exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21. [123] The plaintiff seeks the present value of future care costs for medications, ongoing passive treatments, and psychological counselling sessions calculated, based on her own research of these costs, as follows: a) Medications (Valium, Nexium, Lexapro, and Vimovo): $3,254/year b) Physiotherapy and massage therapy: $4,968/year c) Counselling: $2,208/year d) Total: 10,430/year [124] Recognising the limited utility of ongoing passive therapy on the evidence of Drs. Ailon and Bishop, and that the plaintiff's mental health may improve further, thereby eliminating the need for continued counselling, the plaintiff suggests reducing this estimate to $5,000/year, the present value of which is approximately $160,000 over her lifetime. [125] The defendant admits future care costs of $59,576.95, representing 20 counselling sessions and the present value of medication costs as follows: a) Counselling: $182.40/session x 20 sessions b) Medications: $1,740.60/year: i. Escitalopram (aka Lexapro) and Diazepam (aka Valium) (to treat MDD, GAD, and PTSD): $330.48/year; ii. Vimovo (an NSAID): $620.16/year; and iii. Nexium (to counter side effects of the NSAID): $789.96/year. Counselling [126] Dr. Wiseman recommended that the plaintiff

undergo a "significant" course of cognitive behavioural therapy, targeting sleep and sleep hygiene, worries, pain management, pacing, acceptance, and depression. In his March 12, 2020 report, he stated that she required at least 25 further counselling sessions. Based on the plaintiff's research, the cost per session of psychological counselling in Ireland is $182.40. The plaintiff seeks the present value of counselling costs of $2,208/year (i.e., 12 counselling sessions/year at $182.40/session) for life (i.e., $70,947.46). The defendant proposes funding 20 counselling sessions for a total cost of $3,648. [127] Dr. Wiseman recommended at least 25 counselling sessions. Assuming the plaintiff undergoes this counselling over the next two years in Ireland (based on her suggestion of about 12 sessions/year at $182.40 ($4,560) the present value of this cost would be $4,328. [128] I am not persuaded that the plaintiff will require 12 counselling sessions per year for life; counselling at that frequency exceeds what Dr. Wiseman recommended. However, I accept Dr. Wiseman's evidence that the plaintiff remains at risk of relapse given her chronic pain and ongoing anxiety. This cost may change if she returns to Canada. [129] Given the probability of relapse and her young age, I conclude that it is reasonable to award the plaintiff a lifetime contingency fund of $25,000 to cover the cost of

all future counselling sessions. Medications [130] The plaintiff estimates future medication costs based on one-half the cost of the drugs she now takes ($1,627/year). Using Mr. Pivnenko's future care multipliers, the present value of this lifetime cost is $52,278.76. The defendant calculates the present value of lifetime medication costs (estimated at $1,740.60/year, based on the parties' agreed schedule of special damages) to be $55,928.95. [131] Dr. Wiseman recommended medications to target depression, anxiety, post-traumatic nightmares, and nighttime panicky physiological activation. The type and cost of the medications the plaintiff currently takes to manage her physical and mental health symptoms may change over time. She might not require all of them indefinitely. At some point, she may enjoy extended health care benefits through her employment that will cover or defray this cost. I award $55,000 for future medication costs. Passive Therapy [132] The expert medical evidence does not support an award to cover the cost of ongoing passive therapy. Dr. Bishop cites "strong clinical research evidence" that ongoing passive therapy in the plaintiff's case can lead to poor clinical outcomes and prolonged disability. Dr. Ailon testified that the plaintiff might benefit from the judicious use of passive therapy to manage acute flares in her back symptoms. Accordingly, I award $10,000 as a contingency fund to cover the cost of the limited use of passive treatments in this manner. Given her young age and her evidence about the cost of physiotherapy ($92/visit) and registered massage therapy ($115/visit), I conclude this is a reasonable estimate of this cost over the plaintiff's lifetime.

SUMMARY [133] I award damages as follows: General Damages (including loss of housekeeping capacity) $200,000 Special Damages $10,000 Past Income Loss: $215,000 Future Income Loss $1,200,000 Future Care Costs $90,000

TOTAL $1,715,000 [134] Absent any offers to settle of which I am unaware, the plaintiff is entitled to costs on Scale B. If there are any matters arising from these reasons, the parties may apply to speak to them within 30 days. "Douglas J."