Huang v. First Choice Carpet Centers Corp.

2023 BCSC 132 Huang v. First Choice Carpet Centers Corp.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Huang v. First Choice Carpet Centers Corp., 2023 BCSC 132 Date: 20230130 Docket: M179378 Registry: Vancouver Between: Lily Huang Plaintiff And: First Choice Carpet Centers Corp. and Dwight Everett Wamboldt Defendants Corrected Judgment: The text of the judgment was corrected on the front page on February 15, 2023. Before: The Honourable Madam Justice Warren Reasons for Judgment Counsel for the Plaintiff: B. McIntosh Counsel for the Defendants: D. Merchant A. Binnie Place and Dates of Trial: Vancouver, B.C. June 27-30, July 4-5 and 7-8, 2022 Place and Date of Judgment: Vancouver, B.C. January 30, 2023 Table of Contents Introduction.. 3 Summary of the Evidence.. 4 The Plaintiff's Background and Pre-Accident History. 4 The Accident 5 Post-Accident Condition and Treatment 7 Post-Accident Education, Employment, and Activities. 10 Lay Evidence. 15 Expert Evidence. 15 Discussion.. 19 Credibility. 19 Liability. 21 Findings on the Plaintiff's Condition and Causation. 25 Non-Pecuniary Damages. 27 Past Income Loss. 31 Loss of Future Earning Capacity. 34 Cost of Future Care. 45 Special Damages. 46 Conclusion.. 46 Introduction [1] The plaintiff, Lily Huang, claims damages for injuries she sustained on November 27, 2015, when she was struck by a vehicle while walking on East 3rd Avenue in Vancouver. The was vehicle owned by First Choice

Carpet Centers Corp. and driven by Dwight Everett Wamboldt. The defendants admit liability but take the position that Ms. Huang was contributorily negligent and that liability should be apportioned 20 percent to her. [2] Ms. Huang alleges that the accident caused soft tissue injuries resulting in pain in her left shoulder, left hip, waist, right buttock, neck, upper back, and lower back, as well as an exacerbation of pre-existing anxiety. She says that all her injuries improved over time, with some resolving within a couple months of the accident, but she continues to suffer from pain in her neck, upper back and lower back, and she continues to experience anxiety. She says her ongoing physical symptoms are permanent and have limited her ability to work as a registered nurse, a profession she chose to enter shortly after the accident. She claims non-pecuniary damages, past wage loss, damages for loss of future earning capacity, damages for cost of future care, damages for loss of housekeeping capacity, and special damages. In total, she quantifies her claim at $856,151.46, of which $6,667.46 is for special damages. In addition to a monetary judgment, she seeks interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79, costs of the action, and special costs in any event of the cause associated with the defendants' failure to admit what she says was a

non-controversial aspect of her cost of future care claim. [3] The defendants concede that Ms. Huang was injured in the accident; specifically, that she suffered soft tissue injuries and has experienced pain and some anxiety as a result. However, they say the injuries have substantially improved and they dispute the severity and extent of the ongoing symptoms. The defence also says that Ms. Huang failed to mitigate her damages for lost income earning capacity by choosing to pursue a nursing career for which she was not suited. The defence quantifies Ms. Huang's claim at between $136,804.46 and $256,204.46, with the special damages claim of $6,667.46 having been admitted. The defendants oppose the claim for special costs. It is their position that the claim for special costs should be deferred until after these Reasons for Judgment have been released, when it can be determined whether other costs issues arise. Summary of the Evidence The Plaintiff's Background and Pre-Accident History [4] Ms. Huang was born in 1996. She was 19 years old at the time of the accident and 25 years old at the time of the trial. [5] Ms. Huang is one of three children. She has a sister who is a registered nurse and a brother who is an electrician. Her mother works in food services for a cruise line and her father works in a poultry factory. All of her family members are hard working. Her parents

instilled in her the value of hard work, and the importance of education and self-reliance. [6] Ms. Huang's parents are divorced. She lives with her mother and her brother in a house in Burnaby. Her sister, who was 28 years old at the time of the trial, lives with her husband in Burnaby. [7] Ms. Huang graduated from high school in the spring of 2014. She was a good student. In September 2014 she commenced full-time studies at UBC, pursuing a Bachelor of Science degree. She planned to work in health care, and was considering pharmacy. [8] At the time of the accident, Ms. Huang was in the first semester of the second year of her Bachelor of Science program at UBC. Her UBC transcript indicates that she did well in first year; she estimated her average at a B plus or A minus. Her marks were a bit lower in the first semester of second year. She had particular difficulty with organic chemistry. [9] While in high school, Ms. Huang worked part time in a bakery at Superstore. She continued this part-time work while at UBC, usually working about eight hours a week, but picking up additional shifts during school breaks. Ms. Huang testified that her job in the bakery was a physical one involving lifting, pushing, and pulling. She was required to lift boxes weighing up to 20 kilograms and heavy trays. She testified that before the accident, she had no difficulty with the physical demands of

the job. [10] Ms. Huang testified that before the accident she was happy and led a fairly active life. She enjoyed hiking and roller skating. [11] Ms. Huang had no relevant medical history and no health concerns prior to the accident. She does have scoliosis but there is no evidence that this condition caused her any difficulty in the past or has contributed to her current neck and back pain. The Accident [12] The intersection of East 3rd Avenue and Cotton Drive is a T-intersection. East 3rd Avenue forms the top of the "T" and runs east/west, while Cotton Drive extends north. There are no stop signs or traffic lights. [13] Ms. Huang was going home from UBC. It was between 4:15 and 5:00 pm. She was walking west on East 3rd Avenue and approached the intersection at Cotton Drive. She is familiar with the intersection because she lived in the area at the time. She was wearing a black jacket, black pants, and a purple backpack. She testified that she had her phone in her right hand but was not using it or looking at it. [14] Ms. Huang testified that when she was about two metres from the intersection she saw the defendants' vehicle, a Ford Econoline Van, approaching on East 3rd Avenue (travelling east). In her evidence in chief, she testified that when she stepped off the curb into the intersection the defendants' vehicle was about 15 metres away. She estimated its speed at about 30

kilometers per hour, which she said seemed typical for the area. She said it was dark, but she could see where she was going. She said she saw the headlights on the defendants' vehicle but did not see any turn signal. She did not notice any lights on the vehicle except the headlights, which she said were bright. [15] In cross-examination, Ms. Huang said that when she first noticed the vehicle, it was about 20 metres before the intersection and she was still well onto the sidewalk. She said that when she stepped into the intersection, the vehicle was much closer but still going straight. [16] Ms. Huang testified that when she stepped into the intersection, she was walking at a normal walking speed. She said when she was about half way across Cotton Drive, the defendants' vehicle suddenly turned left towards her. She said she immediately picked up her pace and took a few steps forward (to the west) trying to clear the intersection, but she was struck by the vehicle when she was close to the curb on the west side of Cotton Drive. She said that about one second passed between the time she noticed the vehicle turning and the impact. [17] Ms. Huang testified that the vehicle struck her on her left shoulder and left torso, and pushed her to the ground. She landed on her right buttock. [18] Ms. Huang testified that after the impact she found her phone, but does not recall where she

retrieved it from. She called 911 because she wanted to get checked out at the hospital. When the ambulance arrived, she was crying and felt pain in her left shoulder and right buttock. She acknowledged, however, that she told Mr. Wamboldt that she was okay. [19] Mr. Wamboldt was driving his work van, which he said had five amber lights spaced out along the top of the cab, in addition to two headlights and two amber lights next to the headlights. He was familiar with the intersection. [20] Mr. Wamboldt testified that he had his headlights on and that his left turn signal was engaged as he approached the intersection. He said no one was in the intersection, but just as he commenced his turn he saw Ms. Huang for the first time as she took her foot off the curb on the east side of Cotton Drive. He said he thought she would stop so he proceeded into his turn. Instead, he said, she picked up speed as if to hurry across the intersection in front of him. He then realized she was not going to stop so he slammed on his brakes and turned to the left, into the oncoming lane on Cotton Drive, in an attempt to avoid hitting her. [21] Mr. Wamboldt said that Ms. Huang was dressed in black, had the hood of her jacket over head, and had her left hand up to the side of her head, as if she was talking on her phone. He acknowledged in cross-examination that his headlights were bright enough that he

could see Ms. Huang, even though she was dressed in black, and that he did in fact see her as she stepped into the road. [22] Mr. Wamboldt testified that when his van came to a stop Ms. Huang was right in front of it. He said at that moment she was about two-thirds of the way across Cotton Drive. He said there was no actual impact, although he agreed that Ms. Huang's left hand or arm might have touched the van. He said Ms. Huang's hands went up into the air and flailed around as if she was trying to keep her balance. He saw her phone in her left hand. He said she fell backwards and her phone hit the van and slid down the windshield in front of his face. [23] Mr. Wamboldt said that Ms. Huang got right up and retrieved her phone off his windshield. He asked her if she was okay and she said she was. He said he gave her his business card, she read it, and then she started to cry and called 911. [24] Ms. Huang was taken by ambulance to Mount St. Joseph's Hospital. Some of the hospital records note that she said she hit her head. She denied telling anyone that she hit her head. She testified that she told medical personnel she thought she would hit the back of her head so she jerked her head forward as she fell. She had an x-ray of her left shoulder and was discharged with advice to follow-up with her family doctor, Dr. Tom Lee. Post-Accident Condition and Treatment [25] A few days

after the accident Ms. Huang followed up with Dr. Lee, complaining about pain in her neck, back, and left shoulder since the accident. He recommended that she attend physiotherapy and avoid heavy lifting. She testified she was unable to avoid heavy lifting at work so she did not return to the bakery until January 18, 2016. [26] Ms. Huang testified that during the first few weeks after the accident, she continued to experience pain in her left shoulder, left waist, right hip and buttock, neck, upper back, and lower back. She attended physiotherapy regularly. Within a couple of months, the left shoulder, waist, right hip, and right buttock symptoms resolved. The pain in her neck and back improved but persisted. [27] Ms. Huang continued to attend physiotherapy until September or October, 2016. She testified that her symptoms plateaued when the physiotherapy stopped. She also attended massage therapy, which she says temporarily relieved her symptoms. She continued to see Dr. Lee for follow-up appointments. [28] In December 2016, on referral from Dr. Lee, Ms. Huang began treatment with Dr. Joy Wee, a physiatrist. Dr. Lee testified that he made the referral because Ms. Huang's progress on recovery had been slow. Dr. Wee testified that on examination of Ms. Huang, she noted "tight and tender" right thoracic paraspinal and left lumbar paraspinal muscles, which she considers to be an

objective symptom; she explained that she could feel that the muscles were taut or "ropey". [29] Dr. Wee instructed Ms. Huang to perform core strengthening exercises and stretching exercises for her neck, upper back, and lower back. She recommended massage therapy, which Ms. Huang resumed. She also performed trigger point needling in the affected areas. Ms. Huang said the needling process was painful but gave her temporary relief from her symptoms that lasted for three to four weeks, after which her pain returned to baseline. [30] During subsequent examinations, Dr. Wee continued to note taut muscles in Ms. Huang's back. Ms. Huang has continued to receive needling treatments from Dr. Wee, except during the height of the COVID-19 pandemic, with the last treatment before the trial on June 22, 2022. [31] As I will review in more detail later, Ms. Huang withdrew from UBC shortly after the accident and started attending Vancouver Community College ("VCC") on a part-time basis where she took prerequisites for the BCIT Bachelor of Science in Nursing program. She entered the BCIT program in January 2018. She graduated with a Bachelor of Science in Nursing degree in December 2020, and has worked as a nurse since then. [32] On April 7, 2021, Ms. Huang attended a functional capacity evaluation with Andrew Hosking. She had worked four 12-hour nursing shifts in the days before. She

testified that by the end of the assessment, her back pain had worsened. She had a few days off work after the assessment and over those days the pain improved and returned to baseline. Mr. Hosking recommended that Ms. Huang resume physiotherapy and she did so. [33] Ms. Huang testified that she continues to suffer from periodic pain in her neck and upper back. She experiences flareups in these areas with activity. In addition, she continues to suffer from constant or near constant low back pain with an intensity of about three out of ten on a ten point scale. The low back pain worsens with activities such as working and cleaning the house, and also with cold weather and her menstrual cycle. When the low back pain is aggravated the intensity increases to between seven and nine out of ten. She said that when the low back pain reaches about a seven out of ten she is unable to work, takes Advil, and stays in bed. [34] Ms. Hunag testified that she continues to do the rehabilitation exercises she learned from a physiotherapist at home, daily, and she continues to undergo needling treatments with Dr. Wee on a periodic basis. She does some yoga and has tried high intensity interval training, although she no longer does that. She purchased a "TENS" machine which she uses at home, but has not found it to be particularly effective. She takes Advil as required and uses Voltaren topical

analgesic. She testified that all of this helps her manage her symptoms but none of it is curative. She plans to continue with all of these treatments. [35] Ms. Huang testified that since the accident she has experienced anxiety while driving and also while walking. She said she tries to avoid driving. She acknowledged that she had some driving anxiety before the accident but said it has increased since the accident. She has not sought treatment for her anxiety and does not plan to seek treatment because she considers her self high-functioning, notwithstanding the anxiety. Post-Accident Education, Employment, and Activities [36] Ms. Huang was off work at the bakery for about seven weeks after the accident. She testified that but for the accident she would have worked during this time and she estimates she would have earned about $1,000 doing so. [37] As mentioned, at the time of the accident Ms. Huang was in the first semester of second year at UBC. The accident occurred a few days before her final exams for that semester. She testified that the pain from her injuries made studying difficult, she was under a lot of stress as a result, the pain and stress interfered with her sleep, and the lack of sleep also made it difficult to study. She said she did not do well on her exams, and she ended up failing organic chemistry. [38] Ms. Huang was disappointed with her performance at

UBC that semester. In addition to failing organic chemistry, her marks in her other courses were somewhat lower than the marks she had received in first year. She formed the view that her marks were not competitive for pharmacy. She spoke to her sister who was then in first year nursing at BCIT and then decided to purse a nursing degree. She withdrew from UBC and enrolled at VCC to complete the prerequisites for BCIT's Bachelor of Science in Nursing. She testified that she did not know much about the physical demands of nursing at the time. Her neck and back pain had improved and she did not think her accident-related injuries would be permanent. [39] Ms. Huang commenced studies at VCC in January 2016, taking one psychology course. Over the next 20 months or so, she completed the nursing prerequisite courses at VCC. [40] Ms. Huang returned to the bakery on a part-time basis later in January 2016, while attending VCC, but she testified she did not take as many shifts in 2016 as she otherwise would have due to the time demands of physiotherapy. [41] Again, Ms. Huang commenced the Bachelor of Science in Nursing program at BCIT in January 2018. The program consisted of a couple of years of coursework followed by a "preceptorship", or clinical component, of 16 weeks duration. Ms. Huang commenced the clinical component in August 2020 at Surrey Memorial Hospital. She worked about

three 12-hour shifts a week with a supervising nurse. She found the physical aspects of the work very difficult. She testified that she suffered from increased pain and tightness in her neck and back after her shifts, and had to take Advil for relief. She mentioned having difficulty carrying babies and performing overhead work such as hanging IVs. Tasks that required her to bend over aggravated her lower back pain, as did prolonged sitting while charting. She testified that she had to ask her coworkers for help when mobilizing patients. [42] Ms. Huang continued working part time at the bakery in 2017, 2018, 2019, and the first half of 2020. She quit the job in August 2020 when she started her nursing preceptorship. Her income from the bakery in 2017 was $5,110. She testified that she earned less in 2017 than she did in 2016 because her tuition and book costs at VCC were less than they had been at UBC so she chose to work fewer shifts. [43] Ms. Huang graduated from the BCIT nursing program in December 2020. Her transcript indicates that she did well academically, earning an overall GPA of 93 percent. [44] Ms. Huang testified that as a result of the difficulty she experienced with the physical demands of nursing during her preceptorship, she decided that she would eventually pursue lighter-duty nursing work with more mobile patients and shorter shifts. However, she said it is

difficult for new nurses to get the more desirable lighter-duty jobs which are sought after by nurses with more seniority, so she when she completed her preceptorship she applied for all positions that were available to new graduates. [45] Ms. Huang's first nursing job was at St. Paul's Hospital in an acute medicine inpatient unit. She started working there in late January or early February 2021. The shifts were 12 hours long. Initially she worked two and a half shifts per week, which she referred to as a "0.77 FTE [full time equivalent] line". She explained that a 1.0 FTE is 37.5 hours per week. Ms. Huang testified that she did not initially seek less than full-time work but the 0.77 FTE line was the position that was offered to her. She was paid $36.23 an hour plus "differentials" (additional hourly amounts) for certain shifts such as evenings, nights, and weekends. [46] Ms. Huang testified that she found the physical aspects of the position in the acute medicine unit very difficult. She said her back and neck pain increased to the point that she could not do much, physically, during her off-work time. She testified that she missed one to two shifts a month as a result of more significant flareups in her symptoms. She was entitled to about 11 hours of sick time per month and when she used that up she did not get paid for the time she missed. [47] Ms. Huang testified that

overtime shifts were available every week in the acute medicine unit. She explained that the nurses are notified by email or text about the availability of overtime shifts and can bid on the shifts, which are awarded on the basis of a formula that includes seniority. She testified that she never bid on overtime shifts, but sometimes she received double pay for coming in when the hospital was short-staffed. [48] Ms. Huang testified that it soon became apparent to her that working in acute medicine was not sustainable because of her ongoing neck and back pain. She began applying for positions with shorter shifts and more mobile patients. In September 2021, she obtained a lighter-duty position in the medical short stay unit at St. Paul's Hospital. She continues to work in this position. She testified that the patients are ambulatory and there is a team-based approach to the work which makes it easier for her to avoid the heavier tasks. [49] When Ms. Huang started working in the medical short stay unit, her position was casual but close to full time. In late 2021, she was offered a permanent part-time position there, which would qualify her for benefits. She referred to this as a "0.4 FTE line", which requires her to work two, seven and a half hour shifts a week. Her shifts are on weekends and she receives a differential of $2.30 per hour for weekend work. She testified that there

is not much overtime available in this position. [50] Ms. Huang testified that she is able to manage the physical aspects of the part-time position in the medical short stay unit, although the work continues to result in occasional flareups of neck and back pain. Her work involves a variety of tasks including dressing changes and assisting with minor procedures. Charting requires prolonged sitting which aggravates her low back pain. She gets up and walks around after about an hour of sitting, which helps her manage the pain. [51] In addition to the part-time, weekend position in the medical short stay unit, Ms. Huang secured a casual position in the outpatient department at St. Paul's Hospital. She works between one and three eight-hour day-shifts per month in this position. These are weekday shifts and no pay differential is available. This too is a lighter duty position with patients who are ambulatory and independent. Ms. Huang testified that she is generally able to manage the physical aspects of this position but, as with the position in the medical short stay unit, there are times when her work results in flareups in her neck and back pain. [52] Ms. Huang testified that she does not get many shifts in the outpatient department because of her low seniority. She said that if more shifts were available, she could manage full-time hours either in the medical short stay unit

or in the outpatient department, or in a combination of the two units. If she worked full-time hours in one of these positions, or a combination of them, she would earn between $75,000 and $80,000 per year. [53] In contrast, Ms. Huang testified that if she was not physically limited by her accident-related injuries she could work in acute medicine, where she would have the opportunity for overtime hours. She said if she did this she would earn about $150,000 per year. She testified that this is what she would have done if she had not been injured in the accident. She testified that she would have worked at this level for between five and ten years, until she had children. After having children, she would have worked full time but would not have continued to take overtime shifts. She estimated that this pattern would generate about $100,000 a year in income, with differentials. She said that by the time she is in her early 30s she will be at the top of the pay scale, which will generate an annual base salary of about $93,000 for full-time work without overtime or differentials. [54] Ms. Huang testified that she has continued to apply for full-time, light-duty positions. She testified that as she moves up in seniority, her chances of obtaining a full-time, light-duty position will improve. Her goal is to secure full-time, light-duty work with shorter shifts. She testified that

with this kind of position she might be able to manage some overtime, but not much overtime is available in this kind of position. [55] Ms. Huang continues to live with her mother and brother. She said that notwithstanding her injuries she is capable of light housework, laundry, and cooking. She said she avoids scrubbing the bathtub, mopping the floor, mowing the lawn, and shovelling snow because these activities aggravate her back pain. She said her mother performs these heavier activities. [56] Ms. Huang purchased a presale condominium in Burnaby and plans to move there, with her boyfriend, when construction is complete. She testified that she worries about being able to maintain a house, especially the yard work and shoveling snow. She said she plans to hire a housekeeper. [57] Ms. Huang did not say much about the impact of her injuries on her lifestyle or her relationships. She did say that she continues to hike but has stopped roller-skating because she fears a fall would aggravate her back pain. Lay Evidence [58] Angela Carr is Ms. Huang's supervisor at St. Paul's Hospital. She testified that she was not aware of any performance issues with Ms. Huang's work, but that at present there are no full-time positions available on the medical short stay unit. She described full-time, lighter-duty positions, such as on the medical short stay unit, as "sought after". [59] Ms. Carr

testified about the allocation of overtime hours for nurses which, put simply, is based on a formula that includes seniority. Nurses with more seniority tend to get more overtime shifts. Also, far more overtime hours are available on inpatient wards that are staffed 24 hours per day, seven days per week, than on lighter-duty wards, such as the medical short stay unit, where the patients are mobile and the work is done during certain discreet daytime hours. [60] Ms. Huang's sister, Lisa Huang testified. As mentioned, she became a nurse a couple of years before Ms. Huang did. She works in the acute care surgical ward at Vancouver General Hospital. [61] Lisa Huang started working as a nurse in 2018. Over time, as she has acquired seniority, she has begun picking up overtime shifts. By the time of trial (in about her fourth year as a nurse), she was averaging about 96 hours of overtime a month. In 2021, she earned close to $160,000, and was on track to earn about the same amount in 2022. Expert Evidence [62] Ms. Huang relied on the expert evidence of Dr. Trent Faraday, a general practitioner with a focussed practice in musculoskeletal injury management; Andrew Hosking, a physiotherapist, certified work capacity evaluator, and cost of future care evaluator; Alex Jackson, a vocational consultant; and Judy Ren, an economist. The defendants did not tender any expert evidence. [63] As

mentioned, Dr. Faraday is a general practitioner with a focussed practice in musculoskeletal injury management. He previously worked as a medical advisor for WorkSafeBC providing medical opinions for case managers on workers injured in a variety of occupations, including nursing. [64] Dr. Faraday conducted an assessment of Ms. Huang on February 8, 2020, while she was attending BCIT and before she commenced her preceptorship. In his report dated July 5, 2020, he expressed the opinion that Ms. Huang sustained the following injuries in the accident: · musculoligamentous injuries to the neck, with ongoing pain symptoms; · musculoligamentous injuries to the upper back, with ongoing pain symptoms; · musculoligamentous injuries to the lower back and gluteus muscles, with ongoing pain symptoms; and · situational anxiety relating to driving, with ongoing symptoms. [65] In the prognosis section of his report, Dr. Faraday expressed the view that Ms. Huang is likely to have ongoing neck, upper back, lower back, and gluteus muscle pain for the foreseeable future. He testified that the likelihood of her experiencing significant improvement in her symptoms is low. [66] At the time Dr. Faraday assessed Ms. Huang, his view of her tolerance for 12-hour nursing shifts was expressed as "guarded", but he opined that she could likely manage a lighter duty nursing position. He recommended a

functional capacity evaluation. He also noted that Ms. Huang was not able to perform heavier cleaning activities, but expressed the view that after further active rehabilitation she would be able to manage her housework independently. [67] In his report, Dr. Faraday made the following recommendations: · periodic trigger point injections, so long as she continues to benefit from them; · Advil on an as-needed basis, the need for which will likely continue indefinitely into the future and increase during flareups; · a home "TENS" machine for electrical stimulation of the muscles, to be replaced every five years; · an exercise program (swimming, yoga, or gym-based), eight sessions of kinesiology, and a gym pass; · passive therapy (four sessions) during flareups, likely once per year; and · psychological counselling for anxiety. [68] Mr. Hosking conducted a functional capacity evaluation of Ms. Huang on April 7, 2021. At that time, Ms. Huang was working in the acute medicine unit at St. Paul's Hospital. Mr. Hosking concluded that Ms. Huang was likely "incapable of remaining durably employable" in that role because she demonstrated limited endurance for reaching and insufficient strength to meet the full demands of that position. He expressed the view that she would be better suited to an alternative occupation within nursing, for which the physical demands are more consistent with

her abilities. He opined that ongoing physical rehabilitation treatment would not likely improve her functional abilities. However, he recommended a return to physiotherapy (10 to 12 sessions) with an expectation that this would improve her capacity to manage her symptoms. He also recommended assistance to manage housework if her functional status remains unchanged, and assistance for heavier and seasonal cleaning in any event. [69] Mr. Jackson provided opinion evidence concerning the affect of Ms. Huang's injuries on her ability to participate in the competitive labour market. He conducted an assessment of Ms. Huang on February 6, 2020 (when she was attending nursing school at BCIT) and a follow-up telephone interview on June 11, 2021 (when she was working in the acute medicine unit at St. Paul's Hospital). [70] Mr. Jackson subjected Ms. Huang to a battery of vocational tests and asked her to describe how her injuries affect her ability to perform her duties at work. He reviewed the expert reports of Dr. Faraday and Mr. Hosking and relied on their assessments of her functionality. He expressed the opinion that the injuries she sustained in the accident present the following barriers to employment: · she will encounter difficulty in work situations involving a lot of physical exertion such as lifting, carrying, pushing, or pulling; · she has reduced ability to perform work

requiring repetitive or prolonged reaching and handling, as well as overhead work; · she will have difficulty performing work requiring repetitive or prolonged body positions such as crouching, kneeling, crawling, and stooping due to neck and upper back pain; · she has reduced ability to perform work tasks involving prolonged postures with neck flexion (tilting had to look down) or extension (tilting had to look up); · she will require frequent stretch and symptom management breaks to manage chronic pain; and · her chronic pain, diminished strength, and increased pain with physical exertion will make it difficult for her to work a full-time work schedule as a hospital registered nurse. [71] In Mr. Jackson's opinion, working as a hospital-based registered nurse is not sustainable for Ms. Huang, and these barriers will alter her career trajectory significantly, reduce her earning capacity, and narrow the occupational choices for her considerably. [72] Mr. Jackson expressed the view that working as a community nurse is a more suitable option for Ms. Huang but, in his view, her physical limitations still place her at a competitive disadvantage in this type of position in comparison to her able-bodied peers. In addition, he noted that community nurses are occasionally required to perform patient tasks requiring a lot of physical exertion, repetitive neck flexion, and stooped

standing, and in his opinion, even working as a community nurse, Ms. Huang would require frequent breaks to manage her symptoms. [73] Citing the collective agreement between the Health Employers Association of BC and the BC Nurses Union (the "Collective Agreement"), Mr. Jackson noted that the hourly base wage for registered nurses employed in public health agencies and hospitals is the same, but nursing positions for which Ms. Huang is suited would typically pay less than hospital-based positions because of the absence of overtime opportunities and shift differentials. He noted a survey of overtime worked by nurses in Canada in 2016 that was commissioned by the Canadian Federation of Nurses Unions that found that 17.5 percent of all nurses worked overtime every week and the average number of extra hours worked per nurse was 7.1 hours per week. [74] Ms. Ren prepared a report providing estimates of Ms. Huang's past and future loss of employment income assuming that, absent the accident, Ms. Huang would have had earnings aligned to BC females working as registered nurses and, as a result of the accident, she is unable to perform the full range of nursing duties resulting in an earnings impairment of 25 percent, 30 percent, or 35 percent over her future career. She relied on the Collective Agreement and the 2016 statistical earnings of nurses as reported by Statistics Canada. She

also explained the use of future income loss multipliers to express the present value of a future income stream. Discussion Credibility [75] The plaintiff's credibility is vitally important in a personal injury case involving subjective symptoms such as those upon which Ms. Huang's case is based. The Court must be very careful when assessing a plaintiff's credibility "when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery": Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399, 1982 CanLII 36 (S.C.). [76] The factors identified by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296, play a role in assessing whether the evidence of a witness is truthful and accurate. These factors include the ability of the witness to resist being influenced by his or her interest in recalling the relevant events; the internal and external consistency of the witness's evidence; whether the witness's evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence; whether his or her evidence seems unreasonable, improbable, or unlikely, bearing in mind the probabilities affecting the case; and the witness's demeanour, meaning the way he or she presents while testifying. [77] The defence did not directly

challenge Ms. Huang's credibility, but did argue that her testimony concerning her injuries and their impact on her ability to work was generally imprecise. Ms. Huang characterized her low back symptoms as improved in intensity but still constant and subject to flareups since the accident, and her neck/upper back symptoms as improved in intensity but still periodic and subject to flareups. The defence submitted this was inconsistent with the clinical records of Dr. Lee and Dr. Wee, which do not expressly note subjective complaints of pain in the neck/upper back/shoulder areas between mid-February 2016 and January 2018, and which indicate occasions when Ms. Huang reported improvement following treatment and periods when her symptoms returned, from which the defence says it should be inferred that she had periods of full relief or at least only mild symptoms. [78] In my view, the weight the defence gives to the clinical records is misplaced. As explained in the oft-cited decision of Justice N. Smith in Edmondson v. Payer, 2011 BCSC 118 at paras. 36-37, the absence of reference to a symptom in a doctor's clinical record cannot be the sole basis for any inference about the existence or non-existence of that symptom, and a plaintiff whose condition neither deteriorates nor improves is not obliged to constantly bother busy doctors with reports that nothing has changed. Again, Ms.

Huang testified that her neck and upper back symptoms are periodic while her low back symptoms are constant or nearly so. From her testimony as a whole, it is apparent that the low back symptoms have always been far more troublesome in terms of impact on her functionality and lifestyle. She testified that when she saw her doctors she reported the symptoms that were bothering her that day, and did not attempt to relay how she felt every day between appointments. This is reasonable and, in all the circumstances, I am not surprised that Ms. Huang's complaints to her treating physicians most often focussed on her low back. [79] I had no concerns about Ms. Huang's credibility. I did not find her testimony to be vague or imprecise. She was soft-spoken, generally agreeable, reasonable, and consistent in her testimony. She made several admissions against interest including that she had driving anxiety before the accident, her driving anxiety increased after the accident but she still considers herself high functioning, notwithstanding the anxiety, and she could manage full-time hours in a lighter duty nursing role if full-time hours were available. She presented as a stoic witness, saying very little (almost nothing) about the impact of the injuries on her recreational and social life, which indicates she is not prone to exaggeration. I have no difficulty accepting her

testimony. Liability [80] Ms. Huang's position is that the defendants are entirely at fault for the accident. She says that Mr. Wamboldt, even on his own evidence, was required to yield the right-of-way to her, and he failed to do so. She emphasizes that the onus is on the defendants to establish that she was contributorily negligent and submits they have not done so. To the contrary, she says that I should find that the defendants' vehicle was about 15 metres before the intersection at the moment she stepped off the curb, and she was already in the middle of Cotton Drive when Mr. Wamboldt commenced his left turn. She argues that by the time she realized that he was not going to yield the right of way to her, it was not possible for her to successfully take evasive action, although she tried to do so. [81] The defendants admit that Mr. Wamboldt was at fault because, on his own evidence, he could have avoided the accident by stopping as soon as he saw Ms. Huang step off the curb. However, they submit that Ms. Huang was contributorily negligent and that liability should be apportioned 20 percent to her. Specifically, they say Ms. Huang stepped off the curb as Mr. Wamboldt began his left turn. They argue that she ought to have been aware that in stepping from the sidewalk onto the street she was moving from a location of relative safety to one of danger, and it was incumbent upon

her to stop. They argue that a reasonable person in her position would have seen the defendants' vehicle commencing its turn before she stepped in its path. [82] I have already summarized the testimony of Ms. Huang and Mr. Wamboldt as it relates to the circumstances of the accident. Their versions conflict on a few points; specifically, whether Mr. Wamboldt's left turn signal was engaged, where Mr. Wamboldt's vehicle was positioned at the moment Ms. Huang stepped off the curb, and whether Ms. Huang was actually struck by Mr. Wamboldt's vehicle or whether she was startled and lost her balance as it nearly struck her. [83] In my view, only one of these points of contention is material. It matters not whether Ms. Huang was actually struck by Mr. Wamboldt's vehicle because there is no dispute that his negligence caused her to fall and none of her injuries depends on her having been struck. It matters not whether Mr. Wamboldt's left turn signal was engaged because he was at fault even if his left turn signal was engaged. Central to the positions of each party is the location of the defendants' vehicle at the moment Ms. Huang stepped off the curb. As I will explain, this is the key fact on which the assessment of Ms. Huang's conduct rests. [84] The statutory obligation imposed on a driver intending to turn left at an intersection is set out in s. 174 of the Motor Vehicle Act,

R.S.B.C. 1996, c. 318 (the "MVA"): When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn. [85] "Traffic" includes pedestrians: MVA, s. 119(1). [86] The statutory obligation imposed on a pedestrian stepping off a curb to cross the road is set out in s. 179(2) of the MVA: A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way. [87] In summary, a left turning driver must yield to oncoming traffic (including a pedestrian) that is in the intersection or so close as to constitute an "immediate hazard"; while a pedestrian must not step off the curb into the path of the vehicle that is so close it is impracticable for the driver to yield the right of way. [88] In addition to these statutory duties, drivers have common law duties to drive with due care; in particular, to take reasonable precautions in response to hazards: Stewart

v. Dueck, 2012 BCSC 1729 at paras. 38-40. Similarly, pedestrians who have the right-of-way are entitled to assume that others will act lawfully and will respect it, but that does not mean they can ignore the risk that others may not do so and place themselves in danger: Paskall v. Scheithauer, 2014 BCCA 26 at paras. 75-78. [89] A pedestrian will be found contributorily negligent where it is established that they should have realized that a car was not going to yield the right-of-way, that it would have been possible for them to avoid the car by stopping for example, and that a reasonable person in their circumstances would have taken and succeeded in evasive action: Olesik v. Mackin [1987] B.C.J. No. 229. [90] Again, the defendants concede that Mr. Wamboldt was at fault. He admitted that he saw Ms. Huang as she stepped from the sidewalk but he thought she would stop so he proceeded to make his turn. Perhaps among other things, contrary to s. 174 of the MVA, he failed to yield the right-of-way to Ms. Huang who, even on his own evidence, was so close as he commenced his turn as to constitute an immediate hazard. [91] I turn then to consider whether Ms. Huang was also at fault. She admitted that she saw Mr. Wamboldt's vehicle before she stepped off the curb. If, as he maintained, he was already commencing his turn as she stepped off the curb then, irrespective of whether his turn

signal was engaged, if it was impracticable for him to stop, she had a statutory duty to yield the right-of-way and, even if it was not impracticable for him to stop, she should have realized he was not going to stop and had she done so it would have been possible for her to avoid the accident by stopping. [92] On the other hand, if, as Ms. Huang maintained, Mr. Wamboldt's vehicle was travelling straight about 15 metres before the intersection at the moment she stepped off the curb, then, irrespective of whether his turn signal was engaged, it was not impracticable for him to stop and she had the right-of-way. If Mr. Wamboldt's vehicle was travelling straight about 15 metres before the intersection at the moment she stepped off the curb, it is not reasonable to find that she should have realized he was not going to yield the right-of-way to her until it was too late for her to take evasive action. [93] The crucial question then is: where was Mr. Wamboldt's vehicle when Ms. Huang stepped off the curb? [94] Neither party accused the other of intentionally providing an inaccurate account of the circumstances leading up to the accident. There was nothing in the testimony of either of them that gave rise to any concern on my part about the credibility of their respective accounts. However, the reliability of each of their accounts is open to question. The accident was several years

ago. It happened very quickly. Each of them was shaken by what had happened. In the circumstances, I am inclined to accept the version that aligns most closely with the undisputed evidence. [95] It is not disputed that Ms. Huang was more than halfway across Cotton Drive at the moment of impact (on her account) or near impact (on Mr. Wamboldt's account). Mr. Wamboldt conceded that he did not stop before moving into his turn. It is unlikely that Ms. Huang could have travelled so far if Mr. Wamboldt was already turning as she stepped off the curb. This is so even though I accept that she picked up her pace when she realized he was not going to stop. For these reasons, I prefer Ms. Huang's account. [96] I find that when Ms. Huang stepped off the curb, the defendants' vehicle was not so close that it was impracticable for Mr. Wamboldt to yield the right-of-way. It cannot be said that Ms. Huang should have realized that he was not going to yield the right-of-way or that it would have been possible for her to avoid him by stopping. By the time she realized he was not going to stop, it was not reasonably possible for her to successfully take evasive action. [97] The defendants have not met the burden of establishing, on a balance of probabilities, that Ms. Huang was contributorily negligent. The defendants are wholly liable for the accident. Findings on the Plaintiff's Condition and

Causation [98] As noted, the defendants concede that Ms. Huang was injured in the accident; specifically, that she suffered soft tissue injuries, and has experienced pain and some anxiety as a result. However, they say the injuries have substantially improved and they dispute the severity and extent of the ongoing symptoms. They submit the evidence establishes that Ms. Huang experiences occasional upper back/neck/shoulder pain and intermittent low back pain, with the frequency of symptoms greater in the low back than in the neck/upper back area. [99] The defendants accept Dr. Faraday's opinion that Ms. Huang sustained a musculoligamentous injury to her low back in the accident and that she continues to suffer from ongoing pain in her low back. However, they submit that his opinion that she also sustained musculoligamentous injuries to her neck and upper back with ongoing pain symptoms is unsupported by the evidence. As already alluded to, this position is based to a large extent on the absence of subjective complaints of pain in the neck/upper back/shoulder areas in the clinical records of Dr. Lee and Dr. Wee between mid-February 2016 and January 2018. [100] I disagree with these defence submissions. Dr. Faraday summarized Ms. Huang's complaints as "continuity of neck, back and gluteous muscle symptoms as documented by her physician and various therapists", but read in context

I did not consider that to suggest an assumption on his part that Ms. Huang had suffered from constant pain in each area since the accident. To the contrary, Dr. Faraday expressly noted Ms. Huang reported to him that "currently she experiences low back pain; and stiffness in her neck/upper back, all on a daily basis", which clearly distinguishes between pain in the low back and stiffness in the neck and upper back. The clinical records of Dr. Lee and Dr. Wee are not inconsistent with that report or with Ms. Huang's testimony. Importantly, Dr. Faraday was not asked if his diagnosis would have been different had he assumed that, from about six weeks after the accident, there was a period of almost two years during which Ms. Huang experienced no neck or upper back pain and since then she has had only occasional neck and upper back symptoms. [101] For the reasons I have already expressed, I found Ms. Huang to be a credible witness and I accept her account of her symptoms and their progression. There is no material difference between her account of her condition at trial and the history she relayed to Dr. Faraday, Mr. Hosking, and Mr. Jackson. I accept Dr. Faraday's opinions concerning Ms. Huang's physical condition and its cause. [102] I find that the accident caused Ms. Huang to sustain soft tissue injuries resulting in pain in her left shoulder, left hip, waist, right buttock,

neck, upper back, and lower back. I find that initially those injuries caused Ms. Huang considerable pain in these areas, but that the symptoms in her shoulder, hip, waist, and buttock resolved within about two months of the accident. [103] I find that the injuries to Ms. Huang's neck, upper back, and lower back improved but have not resolved. I find that she continues to suffer from occasional pain in her neck and upper back, with flareups in these areas with activity. I find that she continues to suffer from constant or near constant low back pain that worsens with activities such as working and cleaning the house, with cold weather, and during menstruation. I accept that the flareups of low back pain are intense, effectively leaving her unable to do anything but rest. [104] On the basis of Dr. Faraday's evidence, I find that Ms. Huang's present condition is unlikely to improve; she is likely to have ongoing periodic neck and upper back, and near constant lower back pain, with periods of significant flareups in intensity, for the foreseeable future. [105] Dr. Faraday expressed opinions concerning Ms. Huang's anxiety, but I am not satisfied that he was qualified to do so. I give those opinions no weight. Nevertheless, I accept Ms. Huang's assertion that she has experienced an increase in her pre-existing anxiety since the accident but, on her own evidence, this has had a

marginal, if any impact on her life. Non-Pecuniary Damages [106] An award of non-pecuniary damages is intended to compensate for pain, suffering, and loss of enjoyment of life prior to the trial and into the future. In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref'd [2006] S.C.C.A. No. 100, the Court of Appeal set out a non-exhaustive list of factors to be considered in determining the amount of non-pecuniary damages to award. That list includes the age of the plaintiff, the nature of the injury, the severity and duration of the pain, the extent of disability, the existence of emotional suffering, the loss or impairment of life, the impairment of relationships, the impairment of physical and mental abilities, and the loss of lifestyle. I have taken these factors into consideration. [107] Awards of non-pecuniary damages in other cases provide a useful guide, however, the specific circumstances of each individual plaintiff must be considered. This is because any award of damages is intended to compensate for the pain and suffering experienced by a specific individual. [108] Ms. Huang advanced a discrete claim for loss of housekeeping capacity ($25,000). As observed by Justice Skolrood (as he then was) in Andreas v. Vu, 2020 BCSC 1144 at para. 92, there is a preliminary question that must be addressed in this regard: whether the loss is more properly considered

pecuniary or non-pecuniary in the circumstances of this case. He explained: [92] In Kim at paras. 28-32, Chief Justice Bauman reviewed a number of cases and academic writings addressing the question of whether loss of housekeeping capacity should be dealt with as an element of non-pecuniary damages or as a separate head of pecuniary damages and concluded: [33] Therefore, where a plaintiff suffers an injury which would make a reasonable person in the plaintiff's circumstances unable to perform usual and necessary household work -- i.e., where the plaintiff has suffered a true loss of capacity -- that loss may be compensated by a pecuniary damages award. Where the plaintiff suffers a loss that is more in keeping with a loss of amenities, or increased pain and suffering, that loss may instead be compensated by a non-pecuniary damages award. However, I do not wish to create an inflexible rule for courts addressing these awards, and as this Court said in Liu, "it lies in the trial judge's discretion whether to address such a claim as part of the non-pecuniary loss or as a segregated pecuniary head of damage": at para. 26. [34] Whichever option a court chooses, when valuing these different types of awards, courts should pay heed to the differing rationales behind them. In particular, when valuing the pecuniary damages for the loss of capacity suffered by a plaintiff, courts may look

to the cost of hiring replacement services, but they should ensure that any award for that loss, and any deduction to that award, is tied to the actual loss of capacity which justifies the award in the first place. See also: Riley v. Ritsco, 2018 BCCA 366 at paras. 96-103; Abraha v. Suri, 2019 BCSC 1855 at paras. 68-73. [93] In Campbell v. Banman, 2009 BCCA 484 at para. 19, the Court of Appeal cited its earlier decision in Ellis v. Star, 2008 BCCA 164, in support of the observation that a "relatively minor adjustment of duties within a family will not justify a discreet assessment of damages. There will be applied a robust appreciation of household realities within a family and an understanding of the normal give and take that necessarily is part of family life." [109] There is little evidence in this case to support a separate pecuniary award for loss of housekeeping capacity. Ms. Huang continues to live with her mother and brother. Notwithstanding her injuries she is capable of light housework, laundry, and cooking. She said she avoids scrubbing the bathtub, mopping the floor, mowing the lawn, and shovelling snow because these activities aggravate her back pain, but her mother performs these heavier tasks. [110] Ms. Huang intends to move, with her boyfriend, into the condominium she recently purchased. Whether there will be a need for yard work and snow shovelling in the

future is speculative but, if there is, it is reasonable to expect that she and her partner will equitably divide the household tasks. As she is capable of the lighter housework, it is reasonable to expect that he will perform the heavier duties. This would reflect the "normal give and take" that is necessarily part of family life. [111] To the extent that Ms. Huang experiences some difficulty in carrying out some housekeeping tasks, it is in the nature of a loss of amenities or a reduction in her enjoyment of life and is properly addressed as part of the award for non-pecuniary damages. [112] I have found that the accident caused Ms. Huang to sustain soft tissue injuries that resulted in considerable pain and suffering for about two months, and since then she has continued (for more than seven years) to suffer from occasional pain in her neck and upper back, with flareups in these areas with activity, and constant or near constant low back pain that worsens with activities such as working and cleaning the house, with cold weather, and during menstruation. I have found that the flareups of low back pain are intense, effectively leaving her unable to do anything but rest. Ms. Huang is a young woman and her current condition is likely to be permanent. I have also found that the accident caused an increase in Ms. Huang's anxiety. [113] With two significant exceptions, however, Ms.

Huang's injuries have had a relatively minor impact on her life. I have already noted her concession that the anxiety has little if any impact. There is no evidence that the injuries have affected her relationships and very little evidence that they prevent her from engaging in the recreational and social activities she enjoyed before the accident. There is no evidence of any marked change in her lifestyle. The first exception relates simply to the pain. She now lives with daily pain, sometimes of severe intensity, and there is little prospect of improvement. This has diminished her enjoyment of life, and the diminishment is likely permanent. The second exception relates to her work. As discussed in more detail below, I am satisfied that Ms. Huang's injuries have effectively precluded her from working in acute care hospital nursing and this is a disappointment to her. [114] Ms. Huang cites three comparator cases in seeking an award of $120,000 in non-pecuniary damages: Lewis v. Wang, 2020 BCSC 16 ($90,000 awarded in non-pecuniary damages); Herman v. Paley, 2017 BCSC 728 ($110,000 awarded in non-pecuniary damages); and Yang v. Lockhart, 2022 BCSC 32 ($140,000 awarded in non-pecuniary damages). [115] Two of the cases relied on by Ms. Huang concern plaintiffs whose injuries were more severe than her injuries and who, speaking generally, experienced more significant ongoing impact

on their enjoyment of life. In Herman, the plaintiff's injuries had a much more substantial impact on her pre-accident recreational activities. In Yang, the plaintiff suffered from much more severe ongoing pain, including daily headaches and periodic severe migraines, and her injuries caused a dramatic change in her lifestyle [116] The defence submits that Ms. Huang has established a claim for non-pecuniary damages in an amount that reflects intermittent lower back pain and occasional upper back/neck discomfort having minimal impact on her life and cites the following as comparator cases: Cheema v. Bains, 2021 BCSC 1766 ($50,000 awarded in non-pecuniary damages) and Carleton v. Warner, 2020 BCSC 436 ($60,000 awarded in non-pecuniary damages). Alternatively, the defence says if it is accepted that Ms. Huang sustained ongoing injuries to her neck, upper back, and lower back, which preclude her from working in acute care/hospital nursing, then an award of non-pecuniary damages in the range of $80,000 to $90,000 would be appropriate, citing the following cases as comparators: Dhanda v. Thind, 2022 BCSC 1003 ($100,000 awarded in non-pecuniary damages); Palmer v. Ansari-Hamedani, 2019 BCSC 114 ($85,000 awarded in non-pecuniary damages); and O'Brien v. Cernovec, 2016 BCSC 1881 ($70,000 awarded in non-pecuniary damages). [117] Some of the cases relied on by the defence concern

plaintiffs whose injuries were less severe than Ms. Huang's injuries. However, the defendants' alternative premise aligns fairly well with my findings. The case I found most helpful was Dhanda, although the plaintiff's injuries in that case appear to have had a greater impact on her recreational activities. [118] The most significant factors in this case are Ms. Huang's young age; the poor prognosis for improvement in her ongoing physical symptoms, which include constant or near constant low back pain; the prospect of a modest loss of housekeeping capacity; and the disappointment arising from the change in her career aspirations caused by her injuries. Having considered all the authorities, I assess Mr. Huang non-pecuniary damages of $90,000. Past Income Loss [119] A claim for past loss of income or income earning capacity is based on the value of the work the injured plaintiff would have performed but was unable to perform because of their injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30. [120] A common method of assessing this value is to project the income the plaintiff would have earned in the period between the injury and the trial had the injury not occurred, taking into account all realistic contingencies, and to award the difference between the projected income and the actual income the plaintiff did earn or was capable of earning during that period. [121] Projecting what a plaintiff would have earned in the past had they not been injured is a hypothetical exercise. While the standard of proof relating to actual past events is a balance of probabilities, a hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Grewal v. Naumann, 2017 BCCA 158 at para.

48. Real and substantial possibilities are given weight according to their relative likelihood: Reilly v. Lynn, 2003 BCCA 49 at para. 101. [122] Ms. Huang's claim under this head of damages has two components: · she claims a loss of about $3,000 representing time off work from the bakery between the accident on November 27, 2015 and the end of 2016; and · she claims a loss of $8,285 for the period between February 1, 2021 (when she embarked on her nursing career) and the trial, which she says reflects her inability, due to her accident-related injuries, to achieve earnings that align with the average earnings of female nurses in British Columbia. [123] I start with the claim as it pertains to the bakery. While I accept that Ms. Huang has established a loss of about $3,000, my analysis differs somewhat from her analysis. [124] There is no dispute that Ms. Huang was unable to work at the bakery for about 7 weeks after the accident (between November 27, 2015 and about January 18, 2016). Ms. Huang's evidence, which I accept, is that she usually worked about one to two shifts a week, but she worked fewer shifts during exam periods and more shifts during breaks from school such as during the Christmas break. In these circumstances, I find that her average weekly earnings in 2015 (up to November 27, 2015) provides the most accurate foundation for assessing this loss. She was about to

enter an exam period when she would have worked fewer than her usual number of shifts, but she also lost the opportunity to work more than her usual number of shifts over the Christmas break. [125] Ms. Huang earned $10,129 from the bakery in 2015. She was available for work during the 47 weeks from January 1 to November 27. Her average weekly earnings in 2015 were $216. On this basis, I assess her loss of earnings from the bakery in the first seven weeks following the accident at $1,512 ($216 X 7). [126] In addition to earnings lost in the weeks immediately following the accident, Ms. Huang testified she did not take as many shifts in 2016 as she otherwise would have due to the time demands of physiotherapy. She testified that she earned about $2,000 more from the bakery in 2015 than she did in 2016 and she attributed the difference to her inability to work as many shifts as a result of her symptoms. [127] I accept that the demands of physiotherapy cut into Ms. Huang's availability for work, but the evidence indicates that this did not have quite as significant an impact on her earnings as she claimed. [128] Ms. Huang's tax returns show that she earned $10,129 from the bakery in 2015 and $8,779 in 2016, a difference of $1,350, before adjusting for the earnings lost immediately after the accident (which have already been accounted for above). Again, using average earnings of

$216 per week, she would have earned about $11,000 in 2015 but for the accident ($10,129 + $864 ($216 X 4 weeks for the period from the accident to December 31)). She would have earned about $540 in the first two and a half weeks of January 2016 ($216 X 2.5). If that amount is added to what she did earn in 2016, it is possible to use the difference between the two years to determine the earnings she lost during the balance of 2016 (i.e., in addition to the earnings lost in the first two and half weeks of 2016). On this basis, I find that but for the accident, Ms. Huang would have earned an additional $1,681 in the period between January 18, 2016 and December 31, 2016 ($11,000 - ($8,779 + $540)). [129] I assess Ms. Huang's loss of earnings from the bakery at $3,193 ($1,512 during the first seven weeks following the accident + $1,681 during the balance of 2016). Given the tax threshold for low income earners, I would not make any deductions from the gross amount. [130] I turn now to the claim as it pertains to the period between February 1, 2021 (when Ms. Huang embarked on her nursing career) and the trial. [131] Some of the analysis of Ms. Huang's loss of future earning capacity claim which follows in the next section of these Reasons applies to the determination of the value of the work she would have performed as a nurse during the pre-trial period had the accident not

occurred. For the reasons expressed in that section, I find that but for the accident, Ms. Huang would have worked as a nurse in a full-time hospital-based position, where she would have eventually availed herself of opportunities to earn shift differentials and work overtime. [132] I find that but for the accident, as a new nurse (before a significant amount of overtime was available to her) Ms. Huang would have earned no more than about average earnings. Ms. Ren used Statistics Canada earnings data reflecting all registered nurses in all settings (including nurses who work overtime and those who do not, as well as those who receive shift premiums and those who do not) to calculate that Ms. Huang would have earned $89,006 in net income over the period between February 1, 2021 and the trial, had she achieved the earnings of the average registered nurse. I accept that as a reasonable assessment of what she would have earned but for the accident. [133] Also, as discussed in more detail in the next section of the Reasons, Ms. Huang's accident-related injuries have limited her to light-duty nursing roles, with far fewer opportunities to earn shift differentials and work overtime. In addition, she has not been able to secure a full-time light-duty position because of her low seniority. She actually earned net income of $80,721 as a nurse over the pre-trial period. [134] In the

circumstances, I assess Ms. Huang's past loss of income or income earning capacity during the period from February 1, 2021 and the trial at $8,285 on a net basis ($89,006 - $80,721). [135] Ms. Huang has established a past income loss claim of $11,478 ($3,193 from the bakery + $8,285 from nursing). Loss of Future Earning Capacity [136] The Court of Appeal has discussed the principles governing claims for loss of earning capacity in numerous cases. In the oft-cited decision of Morgan v. Galbraith, 2013 BCCA 305 at para. 53, the Court, citing its earlier decision in Perren v. Lalari, 2010 BCCA 140, described the approach as follows: in Perren, this Court held that a trial judge must first address the question of whether the plaintiff had proven a real and substantial possibility that his earning capacity had been impaired. If the plaintiff discharges that burden of proof, then the judge must turn to the assessment of damages. [Emphasis in original.] [137] In Ploskon-Ciesla v. Brophy, 2022 BCCA 217 at paras. 7-10, the Court of Appeal recently restated the operative principles which had previously been revisited in Dornan v. Silva, 2021 BCCA 228, Rab v. Prescott, 2021 BCCA 345, and Lo v. Vos, 2021 BCCA 421: [7] The assessment of an individual's loss of future earning capacity involves comparing a plaintiff's likely future had the accident not happened to their future after the

accident. This is not a mathematical exercise; it is an assessment, but one that depends on the type and severity of a plaintiff's injuries and the nature of the anticipated employment in issue: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144. Despite this lack of mathematical precision, economic and statistical evidence "provide[s] a useful tool to assist in determining what is fair and reasonable in the circumstances": Dunbar v. Mendez, 2016 BCCA 211 at para. 21, citing Parypa v. Wickware, 1999 BCCA 88 at para. 70. [8] Courts should undertake a tripartite test to assess damages for the loss of future earning capacity. In Rab v. Prescott, 2021 BCCA 345, Grauer J.A. clarified this approach. Although the judge did not have the benefit of Rab when he wrote his reasons, the principles summarized therein are not novel; they have been the applicable law for a considerable time. [9] I will repeat those principles here, drawing heavily on Rab. I do so because it is clear the judge did not undertake the requisite steps when assessing damages, nor did he make the findings of fact necessary to quantify an award. This dearth of analysis leaves us to speculate on the basis for the award, as it did in Schenker v. Scott, 2014 BCCA 203 at paras. 55-56. [10] Justice Grauer in Rab described the three steps to assess damages for the loss of future earning capacity: [47] ...

The first is evidentiary: whether the evidence discloses a potential future event that could lead to a loss of capacity (e.g., chronic injury, future surgery or risk of arthritis, giving rise to the sort of considerations discussed in Brown). The second is whether, on the evidence, there is a real and substantial possibility that the future event in question will cause a pecuniary loss. If such a real and substantial possibility exists, the third step is to assess the value of that possible future loss, which step must include assessing the relative likelihood of the possibility occurring--see the discussion in Dornan at paras. 93-95. [138] In this case, it is beyond dispute that Ms. Huang has established a potential future event that could lead to a loss of capacity. The evidence of her diminished capacity is unimpeached. I accept her description of her difficulties while working in the acute medical unit at St. Paul's Hospital. Mr. Hosking's opinion is consistent with her description. Her inability to sustain the physical demands of working in the acute medicine unit at St. Paul's Hospital demonstrates that the injuries she sustained in the accident have limited her functional capacity. Given Dr. Faraday's prognosis, I am satisfied that the limitations are likely permanent. As a result, she has become less valuable to herself as a person capable of earning income in a

competitive labour market; she is less marketable or attractive as an employee to potential employers. There has been an impairment of the capital asset: see Rab at paras. 36 and 60. [139] It is also clear that there is a real and substantial possibility (indeed a certainty) that this loss of capacity will cause a pecuniary loss. I find that Ms. Huang is able to perform in a light-duty position and she is likely able to sustain that kind of work even on a full-time basis. However, she will likely be delayed in securing a full-time light-duty position because of her low seniority, and her injuries will likely preclude her from working in heavier hospital-based roles where the opportunities for overtime and shift differentials are much greater. I accept her evidence about her career intentions and aspirations before the accident. Those intentions and aspirations are no longer realistic for her. She has established a real and substantial possibility of a pecuniary loss. [140] The difficultly, as in many cases, presents at the third step - assessing the value of that future loss, which must include assessing the relative likelihood of future events or contingencies. [141] In Steinlauf v. Deol, 2022 BCCA 96, Grauer J. A. for the Court discussed the third step as follows: [55] As for the quantification, this Court described the process in Gregory v Insurance Corporation of British

Columbia, 2011 BCCA 144 at para 32: ... An award for future loss of earning capacity thus represents compensation for a pecuniary loss. It is true that the award is an assessment, not a mathematical calculation. Nevertheless, the award involves a comparison between the likely future of the plaintiff if the accident had not happened and the plaintiff's likely future after the accident has happened: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.) at para. 8.... [56] Accordingly, as discussed in Dornan at para 156, it became necessary to assess the respondent's without-accident earning potential, and what the respondent was likely to earn as a result of the accident. At the same time, as discussed in Andrews v Grand & Toy Alberta Ltd, [1978] 2 SCR 229 at 251: "It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made". [142] Ms. Huang seeks an award of $624,194 under this head of damages. She urges me to use Ms. Ren's analysis of the value of her future income loss as the foundation for my assessment. She says Ms. Ren adopted a conservative approach to estimating the loss on the assumption that she will not be able to work full-duty, full-time hours as a nurse and, absent the accident, she would have had earnings aligned to the average earnings of BC females working as registered nurses as

published by Statistics Canada. [143] Again, one of Ms. Ren's approaches was to use Statistics Canada data to project Ms. Huang's without-accident future earnings. She explained that the data she relied on reflects all registered nurses in all settings and includes nurses who work overtime and those who do not, as well as those who receive shift premiums and those who do not. As a result, her income projection is less than the expected income for a full-time hospital-based nurse who also works overtime hours. [144] In addition to projecting income based on Statistics Canada average earnings data, Ms. Ren explained the use of future income loss multipliers to express the present value of a future income stream. She also explained the difference between actuarial multipliers, which reflect only a contingency for premature death, and economic multipliers, which also adjust for typical labour market contingencies such as unemployment and part-time work. [145] As mentioned, Mr. Jackson testified that a survey of overtime worked by nurses in Canada in 2016 commissioned by the Canadian Federation of Nurses Unions found that 17.5 percent of all nurses worked overtime every week and the average number of extra hours worked per nurse was 7.1 hours per week. That translates to 369.2 hours a year for those nurses who worked overtime. Using the hourly rates stipulated in the Collective

Agreement, Ms. Ren estimated the average regular hourly rate for a registered nurse in British Columbia, over a career, at $46 per hour. The Collective Agreement sets overtime pay at 1.75 times the regular rate. Thus, Ms. Ren estimated the average hourly rate for overtime hours at $80.50 ($46 times 1.75). On this basis, the loss of the ability to work the average number of over-time hours worked by nurses who work overtime is valued at $29,721 per year (369.2 times $80.50). [146] Using Ms. Ren's economic multiplier (which, again, is already adjusted for survival risks as well as labour market contingencies), it is possible to determine that a loss of $29,721 a year translates to a loss of about $577,000 over Ms. Huang's career, assuming she will work to age 67 and would have continued to work the average number of overtime hours worked by nurses who work overtime (19,413/1,000 X $29,721). [147] Ms. Ren confirmed that if it was assumed that Ms. Huang would be precluded, over the course of her career, from opportunities to receive shift differentials as well as overtime hours, her loss would be greater than that. In addition, because shift differential income is pensionable for nurses, Ms. Huang would lose employer contributions to pension for differential pay. [148] Ms. Huang argues that the appropriate way to quantify her future loss of capacity to work full-time hours, to work

overtime hours, and to receive shift differentials, is to find her to be 30 percent impaired as compared to the average nurse. Using Ms. Ren's projected lifetime earnings of an average nurse ($2,080,645) this translates to a loss of $624,194. She argues that the reasonableness of this assessment can be tested in three ways: 1. as explained, the loss of overtime hours alone translates to a loss over her career of about $577,000; 2. the difference between her current annual income (about $70,000) and that of her sister (about $160,000) over her career would result in a loss of $1,747,170 using Ms. Ren's economic multiplier (19,413/1,000 X $90,000); and 3. even if the difference between her annual income and that of her sister over her career was only half the current difference ($45,000 a year), the loss would be $873,585 using Ms. Ren's economic multiplier (19,413/1,000 X $45,000). [149] The defendants submit that an award of between $77,000 and $154,000 (representing one to two years current income) would be fair and reasonable for Ms. Huang's loss of future earning capacity, provided it is accepted that her loss of capacity for nursing was caused by the accident. Assuming causation is established, the defendants argue that the following factors favour an approach based on one to two years current income: · the lack of any established history of earnings in Ms. Huang's current

job; · the fact that she is young and early in her career such that the contingencies associated with what she would have done and what she will now do are significant; and · the fact that she chose to enter nursing, a career for which they say she was unsuited. [150] I was not persuaded by these submissions. [151] On the question of causation, the defence emphasizes that Mr. Hosking's opinion was based on his findings of Ms. Huang's limited endurance for repeated reaching due to a lack of strength and overall insufficient strength to meet the full demands of heavier duty nursing positions. The defendants argue that I should not assume that Ms. Huang's lack of strength is due to her accident-related injuries. The say it may be that as a person who is small in stature, she is simply not strong enough to do the job of a nurse. [152] I reject this submission. While I accept Mr. Hosking's opinion, my conclusion that there has been an impairment of Ms. Huang's earning capacity as a capital asset is based on Ms. Huang's evidence about her own experiences, including her pre-accident ability to work at the bakery without difficulty and the difficulty she encountered when working in the acute medicine unit at St. Paul's Hospital, together with Dr. Faraday's diagnoses and prognosis, and Mr. Jackson's evidence about the physical demands of nursing. As mentioned, Mr. Hosking's opinions are

consistent with Ms. Huang's descriptions but my conclusion does not rest on his opinion. [153] The defendants also raise what they referred to as a "mitigation" issue. The defendants submit that it was not reasonable for Ms. Huang to take up nursing at a time when her accident-related injuries remained symptomatic. They say a similar issue arose in Perren v. Lalari, 2010 BCCA 140 where, at para. 32, Garson J.A. summarized what was said by Donald J.A. in Steward v. Berezan, 2007 BCCA 150 in these terms: " an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss". [154] Neither Perren nor Steward concerned the question of whether a plaintiff's post-accident employment decisions were reasonable. In Perren, the issue was whether a plaintiff who had been rendered less marketable as an employee was entitled to an award for loss of future earning capacity where she had not demonstrated any substantial possibility that she would suffer an associated loss. There was no real possibility that she would, in the future, return to employment with heavy physical demands. In the circumstances, the trial judge's award for future loss of income earning capacity was set aside. Similarly, in Steward the plaintiff had been a carpenter but left carpentry 20 years before the trial to work as a realtor. The plaintiff's injuries were an

impediment to working as a carpenter but no one, including the plaintiff, suggested that a return to carpentry was even in the plaintiff's contemplation. [155] The defendants say the same "mitigation" issue was encountered in Dorosh v. John, 2013 BCSC 1442, where Justice Power wrote, at para. 83: In any event, I am of the view that the plaintiff cannot have it both ways; that is, retrain after the accident in a position as an LPN with the medical support of her general practitioner and then claim that she is incapable of fulfilling that employment more than three days per week. At some point, if she cannot tolerate full-time work in the occupation she retrained in, it is incumbent on her to retrain again. [156] However, that comment does not appear to have been material to the result in that case. Justice Power went on to award $150,000 for loss of future income capacity and, in doing so, she found that the plaintiff "may not be fully capable of fulfilling a highly physical LPN position" (para. 86); was "rendered less capable overall from earning income from all types of employment" (para. 87); was "rendered less marketable or attractive as an employee as a result of injuries suffered in the accident" (para. 88); and "may have lost the ability to take advantage of all job opportunities in [the LPN] field or in other fields" (para. 88). [157] Ms. Huang decided to pursue nursing

in early 2016, within weeks of the accident and at a time when she had no reason to suspect that the recovery from her accident-related injuries would be prolonged or that she would be left with permanent functional limitations. It was not until four years later, in 2020, when she consulted Dr. Faraday and Mr. Jackson, and subsequently commenced her preceptorship, that she began to suspect she was going to encounter difficulties performing the physical aspects of the job. There is no evidence from which I could conclude that Ms. Huang could have eliminated or reduced the real and substantial possibility of a financial loss by changing tack at that stage and pursuing some other occupation. For illustrative purposes, there is no evidentiary basis for concluding it would have been reasonable for her to abandon nursing in 2020, during her third year at BCIT, and attempt to return to UBC with a view of pursuing pharmacy, and there is no evidence upon which I could conclude that her future loss would have been extinguished or even smaller had she done that. [158] Finally, the defendants submit that if an earnings approach is adopted in this case, it should mirror Dhanda, which also concerned a young plaintiff who entered nursing school following the accident that caused her injuries. In that case, Justice Coval found that a 15 percent reduction to the plaintiff's estimated

without-accident projected earnings reasonably reflected her likely limitations. He concluded that a 50 percent reduction to the estimated value of her 15 percent loss of capacity to reflect "broad contingencies" such as the likelihood that the plaintiff might choose to work part time or not to work at all was appropriate. [159] While the analysis in Dhanda is cogent, the assessment of the value of the plaintiff's loss is case specific and based on the evidence before the Court in that case. [160] There are also problems with Ms. Huang's suggested approach to quantifying this aspect of her claim. [161] First, Ms. Ren's projection of average earnings includes earnings of nurses who worked light-duty positions and did not work overtime or receive shift differentials. The evidentiary record does not support the conclusion that Ms. Huang has as much as a 30 percent impairment relative to that average. [162] Second, the difference between Ms. Huang's current income and that of her sister is of negligible assistance as a "test" of the reasonableness of her quantification because it is not reasonable to assume that her sister will continue to work an average of 24 hours of overtime each week (96 per month) for the duration of her career, or that Ms. Huang would have done that had she not been injured in the accident. [163] Third, assessing Ms. Huang's loss of earning capacity on the

basis that, but for the accident, she would have worked the average number of overtime hours worked by nurses who work overtime, each and every year for the duration of her career, would significantly overstate the loss because it is not reasonable to assume she would have done that. Additionally, and fundamentally, it would not reflect the evidence. Ms. Huang testified that but for the accident she would have commenced her career in a full-time position that provided her with the opportunity to work overtime, and she would have worked overtime for five to ten years, until she had children. She estimated that this would have generated an annual income of about $150,000, which seems to be a fair estimate given her sister's current income. She testified that she then would have continued to work full-time but would not have continued to work overtime. She estimated this would have generated an annual income of about $100,000 including shift differentials. She contrasted this with her estimate of typical full-time earnings without any shift differentials of about $93,000. [164] There are many uncertainties in this case due to Ms. Huang's young age and the early stage of her career. Her loss of future earning capacity cannot be calculated with precision. What is known is that she intends to continue to seek a full-time, light-duty position; the prospect of her securing such a

position will improve as she gains seniority; and she expects she will be able to meet the demands of such a position on a sustainable basis and might even be able to accept some overtime hours to the limited extent they are available. [165] In these circumstances, it is reasonable to begin with the assumption that Ms. Huang will succeed in securing a full-time light-duty position by about the end of her fourth year as a nurse (by the end of 2024) that will give her the opportunity to work a small number of overtime hours but not the opportunity to earn shift differentials, and that, subject to a contingency for early retirement, she will continue to work in that kind of position throughout her career to age 65 (there is no basis to find a real and substantial possibility that she will work beyond age 65). In contrast, had the accident not occurred, from the outset of her nursing career in early 2021 to about the end of 2028 (roughly eight years) she would have worked in a full-time position with a lot of opportunity for overtime and shift differentials, and thereafter she would have continued to work in such a position but would not have availed herself of overtime opportunities. [166] On this basis, and using Ms. Huang's estimates of the income she could have earned in each scenario, her loss in each of the years 2025, 2026, 2027, and 2028 would be $57,000 ($150,000 -

$93,000). Her annual loss in the period from the trial to the end of 2022, as well as in 2023 and 2024, would be greater than that because it is likely that she will not achieve full-time hours in a light-duty position until about the end of 2024. Accordingly, I would assess her annual loss for those years at about $70,000 per year and her loss for the six-month period between the trial and the end of 2022 at about $35,000. Assuming she worked to age 65, her loss would be $7,000 a year ($100,000 - $93,000) for each year between 2029 and 2061. However, given the physical demands of nursing, there is a real and substantial possibility (although not a probability) that she will retire early. [167] In the result, I assess Ms. Huang's future loss of earning capacity at $35,000 for the period between the trial and the end of 2022, $70,000 for 2023, $70,000 for 2024, $57,000 for 2025, $57,000 for 2026, $57,000 for 2027, and $57,000 for 2028. For the years from and including 2029 to and including 2061, when Ms. Huang will turn 65, I start by assessing her loss at $7,000 per year, but after determining the present value of those losses (i.e. between 2029 and 2061), I would reduce the amount by 20 percent to reflect the early retirement contingency. [168] The damages award must reflect only the present value of these amounts. I leave to the parties the calculation of the present values

using Ms. Ren's economic multipliers, and then the 20 percent reduction for the years between 2029 and 2061. If they cannot agree on the final amount they may make further submissions. [169] As in most cases, there are both positive and negative specific contingencies, but with the exception of the early retirement contingency, they are offsetting. For example, it is possible that had the accident not occurred Ms. Huang may have continued to work a lot of overtime hours for ten years instead of eight years. It is also possible that she would have continued to do so for only five years. There are also general contingencies, but they are largely if not entirely accounted for by using Ms. Ren's economic multipliers. Cost of Future Care [170] In Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63, the Court of Appeal confirmed the well-established test for future care damages emanating from Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). The test is an objective one based on medical evidence; there must be a medical justification for claims for cost of future care and the claims must be reasonable. [171] If the evidence shows that the plaintiff is unlikely to use the services recommended, awards for those services should not be made: Izony v. Weidlich, 2006 BCSC 1315. [172] Ms. Huang seeks an award under this head of damages for the cost of pain medication (Voltaren and

Advil), an initial series of physiotherapy sessions, strength training, gym access, and ongoing physiotherapy/massage therapy during flareups. She quantifies her claim at $2,500 per year to age 67. Using the future loss multipliers provided at Appendix E of the Civil Jury Instructions loose-leaf published by the Continuing Legal Education Society of British Columbia, she calculates the present value of her claim at $69,005. [173] Mr. Hosking recommended a return to physiotherapy (10 to 12 sessions) with an expectation that this would improve Ms. Huang's capacity to manage her symptoms. Dr. Faraday's evidence provided a medical justification for the other future care items underlying Ms. Huang's claim. [174] The defendants argue that there is no medical justification supporting Mr. Hosking's recommendation and, in any event, Ms. Huang has already acted on his recommendation and undergone the therapy in question. Leaving aside the issue of whether Mr. Hosking's evidence provides a sufficient basis for the physiotherapy, I agree with the defence that Ms. Huang has already acted on his recommendation. This is not a "future" care requirement. [175] The defendants submit that Ms. Huang's own evidence suggests she is unlikely to use many of the other future care items underlying her claim. The defendants say she has established a claim for a nominal amount of pain medication and some

therapy for flareups, the cost of which they quantify at between $2,534 and $4,934. I agree with some of the defendants' submissions on this point. Ms. Huang testified that she has been following the exercise recommendations she received from medical professionals at home, she intends to continue to exercise at home, and she prefers that over a gym. [176] I am satisfied that Ms. Huang has established a claim for ongoing periodic pain medication and physiotherapy during flareups. There is little evidence upon which to base a projection of the amount of pain medication she is likely to use in the future. Her list of special damages shows that in the six and a half years between the accident and the end of May 2022, she spent $242.96 on pain medication, which is $37 annualized. Dr. Faraday recommended four sessions of physiotherapy a year for flareups. The record shows Ms. Huang has paid $85 a treatment for physiotherapy. At that rate, Dr. Faraday's recommendation translates to a cost of $340 per year. The cost of the two items together is $377 per year. [177] The future care items established are modest. I am satisfied that it is appropriate to assess Ms. Hunag's damages under this head on the basis that she will continue to spend about the same amount each year to age 67. Of course, she may spend less over her lifetime, but equally she may spend more. According to the Civil Jury

Instructions future loss multipliers table, the appropriate multiplier is 27.35555. Using that multiplier, I assess Ms. Huang's damages for cost of future care at $10,313 (27.355 X $377). Special Damages [178] As noted, special damages were agreed to at $6,667.46. Conclusion [179] The defendants' contributory negligence claim is dismissed. [180] In summary, the damages awarded to Ms. Huang are: Non-pecuniary damages $90,000 Past loss of income $11,478 Future loss of income earning capacity To be determined Cost of future care $10,313 Special damages $6,667.46 [181] I leave the issue of interest for the parties to resolve, but if counsel are unable to reach agreement they may make arrangements to speak to that issue. [182] Subject to further submissions, Ms. Huang is entitled to her costs. I agree with the defendants that Ms. Huang's claim for special costs should be deferred until it has been determined whether other costs issues arise. If the parties cannot agree on any costs issues, they may make arrangements to speak to that as well. "Warren J."