Marshall v. Dyson

2020 BCSC 2052 Marshall v. Dyson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Marshall v. Dyson, 2020 BCSC 2052 Date: 20201223 Docket: M161509 Registry: Vancouver Between: Kaitlin Marshall Plaintiff And: Cody Dyson Defendant - and - Docket: M178524 Registry: Vancouver Between: Kaitlin Marshall Plaintiff And: Jordi Patrick Bryant and Zane James Hrysko Defendants Before: The Honourable Madam Justice Adair Reasons for Judgment Counsel for the Plaintiff: A. Maragos B. Troy Counsel for the Defendants in both actions: D. Burns O Wilson Place and Date of Trial: Vancouver, B.C. July 6-10, 13-17, 20, 22-23, 2020 Place and Date of Judgment: Vancouver, B.C. December 23, 2020 1. Introduction. 3 2. Background. 4 3. The accidents and life after the accidents. 8 4. The Experts. 25 (a) The medical experts. 25 (i) Dr. Hamm and Dr. Giantomaso. 26 (ii) The headache specialists. 30 (iii) The psychiatrists. 33 (b) The non-medical experts. 35 5. Findings and conclusions concerning Ms. Marshall's injuries. 39 6. Damages. 43 (a) Non-pecuniary damages. 43 (b) Loss of earning capacity. 45 (c) Cost of future care. 54 (d) Special damages. 63 7. Summary and disposition. 63 1. Introduction [1] The plaintiff, Kaitlin Marshall, is now 31. She has been involved in three motor vehicle accidents. The first was in March 2014, the second was in December 2015, and the last was in May 2017. The defendants have admitted liability for the

accidents. [2] Ms. Marshall says that, as a result of injuries she sustained in these accidents, she has been left with chronic pain in her neck and back, and she experiences migraine-like headaches. Ms. Marshall says that, as a result of the injuries, she is no longer capable of pursuing her dream career as a remote-catering chef, and that her income earning capacity generally has been substantially impaired. In addition to non-pecuniary damages, Ms. Marshall is seeking compensation for loss of earning capacity (both past and future), cost of future care and special damages. [3] The parties agree that the injuries Ms. Marshall sustained in the accidents are indivisible. [4] The defendants do not dispute that, as a result of the accidents, Ms. Marshall sustained injuries, damages and losses, for which she is entitled to compensation. However, the defendants say that, even without the accidents, there was a reasonable prospect that Ms. Marshall would not have pursued a career as a remote-catering chef, and that her damages - particularly her non-pecuniary damages and for loss of earning capacity - must be assessed accordingly.

2. Background [5] Ms. Marshall was born in October 1989. She grew up in Shawnigan Lake, and had a very active childhood. As Ms. Marshall recalled (and her mother, Rose Barnett, confirmed), she pursued many outdoor activities, including hiking, camping and canoeing on Shawnigan Lake. In high school, she was on the student council and a member of the Environmental Club. Cooking was one of Ms. Marshall's favourite activities. When she was in high school, Ms. Marshall often made family dinners and cooked for friends. [6] As a teenager, Ms. Marshall was also quite independent. After Ms. Marshall's parents divorced, and her mother joined the armed forces, Ms. Marshall was mature enough to look after herself when her mother was on deployment. According to Ms. Barnett, Ms. Marshall always helped with the household chores, and was more than willing to do things around the house. [7] Ms. Marshall's high school was atypical. It was designed for students to work at their own pace and learn independently. Ms. Marshall did very well there. However, Ms. Marshall left high school without her diploma. [8] Ms. Marshall began working when she was in her mid-teens. She worked in the library at her school. She had a job at a local restaurant. Ms. Marshall explained that, before she finished high school, she had goals for herself. She had been taught that she had to earn money to support both

herself and her goals (something Ms. Barnett confirmed in her evidence). Ms. Marshall explained that two of her goals at the time were to travel to Thailand and to buy a car. She was able to save up enough money to do both. At the restaurant, Ms. Marshall moved up to prep cook and then to line cook. She then took a position at a rehabilitation centre as "1st cook." As Ms. Marshall explained, she loved working in a kitchen. The work was creative, the time went by quickly, and she also enjoyed the social aspect. [9] In the late 2000s, Ms. Marshall was hired for her first job in "remote catering," in Rivers Inlet. Remote catering is, essentially, working in a kitchen in a remote location. It can involve working at, for example, remote fishing lodges and providing meals for paying guests. It can also involve working in kitchens at remote resource projects (oil and gas, for example), providing meals for everyone in the camp. The income that can be earned is, generally speaking, much better than working in a restaurant. [10] At Rivers Inlet, Ms. Marshall met Robert Hornquist, an experienced chef, and she became his apprentice. She was trained to work as a sous chef, a pastry chef and executive chef. According to Ms. Marshall (and Mr. Hornquist confirmed), the work was physical. It involved bending, twisting, reasonably heavy lifting, moving around equipment, bringing in and unloading

supplies, and carrying supplies from where they were stored to the food preparation area. Ms. Marshall explained that the work typically involved 10-12 hour shifts, but depending on what a person was doing, the shifts could be split up during the workday. Ms. Marshall's work also involved camp or location start-up and shutdown. At shutdown, the location needed to be thoroughly cleaned, and inventory packed and shipped out. [11] Ms. Marshall worked in remote camps in both Alberta and B.C., as well as in remote lodges in B.C. As Ms. Marshall explained, she started as a second cook at a remote camp and worked her way up to executive chef. In contrast to the remote lodges, the remote camps had many more people, and, as Ms. Marshall recalled, the largest camp had 1,500 people. The outdoor conditions at the remote camps were often more isolated and more severe. Generally, she would work three weeks, and then have a break for two weeks. During one job in northern Alberta, she worked 42 days without a break. As Ms. Marshall recalled, she enjoyed the work very much, and she was in the best physical shape of her life. [12] Ms. Marshall explained that, as executive chef, she had a great deal of responsibility. She did all of the ordering, staff scheduling, training and supervision. She had obtained her Occupational First Aid Level III, and was also the occupational health attendant on

site. Although she was not working 12 months out of the year, Ms. Marshall was able to earn a very good income. As she recalled, at the remote camps, she was being paid about $300 a day. At the remote lodges, she was earning between about $160 and $225 per day, plus tips. In 2011, for example, Ms. Marshall's gross income was $53,130. [13] As Ms. Marshall explained, she loved her work. She loved going to different places, creating work teams and helping employees. She explained that, at the fishing lodges, she was working in very beautiful settings, and a big component of the work was interacting with guests. Ms. Marshall frequently offered guests food items that were not on the menu, and she was known for being very customer oriented. Ms. Marshall explained that she was able to put all of her energy into work, and then enjoy her time off. Sometimes, during her time off, she would stay and explore the region, rather than come home. The season at the remote lodges was essentially from April or May to August or September. At the end of the season, the kitchen would be cleaned and shut down. According to Ms. Marshall, this involved preparing for the kitchen not being used for a period of some months, and everything had to be cleaned and cleared out. [14] In 2013, Ms. Marshall met Mike Coyne at one of the fishing lodges where Ms. Marshall was working. [15] Mr. Coyne is the owner of

LandSea Camp and Catering Services Ltd., a company which provides remote workforce accommodations and catering. As Mr. Coyne explained, LandSea will build and operate a remote camp, and then, when the work is finished, remove and clear the camp. The duration of the camps can range from two to three months, to three to five years. According to Mr. Coyne, LandSea's clients are mostly resource-based. The company has both large and small clients, and clients are located in remote locations in B.C. and Alberta. For any particular project, the number of people requiring accommodations and catering can range from about 50 to 400. Mr. Coyne described LandSea as "boutique style," in contrast to very large resource-based projects (he gave Kitimat as an example). [16] According to Mr. Coyne, typically, a chef would be hired for the term of a project, and he described it as a key position. The chef would be responsible for starting the facility, setting up and making it ready for occupancy, and bringing in all of the food and supplies. Setting up usually required ten days before camp opening. The chef would also be responsible for training and scheduling. Mr. Coyne described the first chef's job as very physical. In addition to loading and unloading supplies, the chef could be on his or her feet all day in the kitchen. According to Mr. Coyne (and Mr. Hornquist confirmed), a remote-catering

chef can make considerably more money than he or she would working in a restaurant. [17] As Mr. Coyne recalled, when he met Ms. Marshall, his impression of her was that she was smart, well-spoken and very pleasant. He suggested that she apply to work with LandSea. Ms. Marshall took up Mr. Coyne's suggestion, and she began working at LandSea in the fall of 2013 as first cook, and also as relief second cook. Mr. Coyne described Ms. Marshall as a hard worker, very reliable, and someone who cared about customer service. As Mr. Coyne explained, because LandSea's projects were remote, the company needed staff who could think on their own, fix things and come up with plans, and, as an owner, he needed to know that the staff can manage operations and look after clients. He described Ms. Marshall as someone who could do all those things. [18] At one point, as Mr. Coyne recalled, he had a discussion with Ms. Marshall about advancing her career and going back to school. Indeed, according to Ms. Marshall, in 2013, she prioritized getting the equivalent of her high school diploma, which she did. [19] As of early 2014, Ms. Marshall described herself as "living my dream." She had been hired to work for LandSea, where year-round work was available. She was working in beautiful locations. She was making a very good income, and doing work she enjoyed very much. She had accomplished her goal of

being an executive chef, which she planned to do for the rest of her life, and from which she expected to be able to earn between $90,000 and $100,000 annually. She was very happy, confident and proud of her hard work. She was considering what Mr. Coyne had said about going back to school and taking some courses in human resources to further advance her career as an executive chef. Ms. Marshall was ready, and had been approved, to challenge for her "Professional Cook 3" or "Red Seal." However, she had not been able to complete the examination before the first accident. [20] Ms. Marshall's mother described her daughter before the first accident as vibrant, very social, independent and someone who liked to get things done. She said that she has always been very proud of Ms. Marshall.

3. The accidents and life after the accidents [21] The first accident happened early in the morning on March 6, 2014. Ms. Marshall's then-boyfriend Cody Dyson was driving Ms. Marshall to the Victoria Airport. Ms. Marshall was catching a flight back to her job with LandSea at a location north of Fort St. John, after a break. It was raining heavily. Mr. Dyson lost control of the vehicle when it hydroplaned on the highway, and the vehicle hit the concrete barriers. According to Ms. Marshall, she "blacked out," and the next thing she recalled was Mr. Dyson standing and waving his arms frantically at her. She had a chipped tooth. She recalled being in intense pain and that it was hard for her to breathe. Ms. Marshall was taken by ambulance to Victoria General Hospital. In addition to the chipped tooth, she had sustained a fractured sternum and clavicle, and injuries to her neck, shoulder, chest and hips. [22] As Ms. Marshall recalled, at the hospital, she was told to follow up with her family doctor, and, after several hours, she was discharged. Ms. Barnett picked her up and took her home. [23] As Ms. Marshall recalled, she was in excruciating pain over the next few days. She could not sit up without help, and laughing was painful for her. Ms. Barnett recalled that her daughter walked "like an old person," slow and hunched over. Ms. Marshall had bruises on both hips up into her

right shoulder and the front of her chest. Her neck was very stiff, and she could not turn to the right or the left. Ms. Marshall saw her family doctor a few days after the accident, and began physiotherapy. Although Ms. Marshall was somewhat more mobile with physiotherapy, she was unable even to cook for herself. [24] Ms. Marshall was unable to return to her job at LandSea. [25] However, by April and into May, Ms. Marshall was starting to feel better. She was able to move better, and she was anxious to get back to work. Around the beginning of May, Ms. Marshall decided to go back to school, and she applied to Camosun College for enrollment in September 2014 in a program leading to a Business Diploma. Ms. Marshall explained that she was concerned about the pain she was in, and whether she would be able to do remote catering in the future. She therefore wanted a backup plan. [26] In May, Ms. Marshall took a four-month job with West Coast Resorts at the Hippa Lodge, a fishing lodge. Ms. Marshall had worked for West Coast in 2013, and in May 2014, Mr. Hornquist and Mr. Dyson were both working at the Hippa Lodge, and available to her for support. She was hired to work as a sous chef, under Mr. Hornquist. As Ms. Marshall recalled, although she was starting to feel better, she was worried about being able to do her job. [27] As Ms. Marshall recalled, she found the work very

difficult, and she needed a great deal of support. Mr. Hornquist recalled Ms. Marshall mostly having problems with headaches, and that it was hard for her to lift things, although she never complained. Food storage was in the basement, and Ms. Marshall explained that she had to rely on others to bring supplies upstairs. She also had to rely on others to lift pots off the stove. As she recalled, it was hard for her to stand and chop, especially looking down. At one point, her right arm became numb. Her neck and hips were both very sore, and it was hard for her to walk up and down stairs. Although Mr. Hornquist and Mr. Dyson had been there when she started, they both left part-way through the summer. When Mr. Hornquist left, Ms. Marshall became the head chef, but she was having a very hard time. It was difficult to get regular treatment, and, at one point, she had to be flown out for medical attention. She returned to work, but asked another staff member to take on the food preparation for guests at the lodge, while she concentrated on food for staff. As Ms. Marshall recalled, an executive chef from West Coast came and provided some help. Although she had been asked to stay on to help with the shut-down, Ms. Marshall left the same day as the guests. As a result, she lost out on income from another three weeks' work. [28] Ms. Barnett recalled speaking to Ms. Marshall frequently

that summer when Ms. Marshall was working. She recalled Ms. Marshall being distraught and crying on the phone. This was not at all like her daughter. [29] Ms. Marshall started at Camosun College in September 2014. Although she had been living on her own, she moved in with her mother and step-father in Victoria. As Ms. Marshall recalled, during her first semester, she was having problems with her neck and reading was painful. She had headaches two or three times a weeks. She had occasional numbness in her arm and pain in her hips. She was attending physiotherapy and massage therapy, and her physiotherapist, Stephanie Meier, said that Ms. Marshall responded well to kinesiology. As Ms. Marshall recalled, she was feeling better without the daily physical labour involved with working as a chef. However, she found it hard to sit in the classroom, and needed to get up and move around. [30] In the spring of 2015, Ms. Marshall received an injection in her hip, and she recalled that it provided almost immediate relief. Generally, by this time, Ms. Marshall was feeling better and more hopeful. According to Ms. Meier, by May, Ms. Marshall was doing better and progressing as Ms. Meier hoped. [31] Ms. Marshall did well in her first year at Camosun, and was on the Dean's Honour Roll. [32] In the summer of 2015, Ms. Marshall was hired again to work for West Coast, as executive chef at the

Hippa Lodge. She explained that her sous chef did most of the guest services, while she did food for the staff. As Ms. Marshall recalled, at first, she felt fine. However, her neck and back began to deteriorate, and she felt as if she was back at the beginning. She had considerable pain in her neck and shoulder. She was working a split shift, and had a few hours off in the middle of the day when she would rest and do stretches. As Ms. Marshall recalled, she struggled to bring food up from the basement storage, and to retrieve food from the back of the fridge and freezers. Her neck, right arm, hips and lower back bothered her the most. Although the Lodge had a registered massage therapist on site, guests had priority. Toward the end of July, Ms. Marshall came back home for some treatment from Ms. Meier. Ms. Meier described the goal at that point being to try to manage Ms. Marshall's symptoms so that she could return to work and self-manage while there. Ms. Meier described Ms. Marshall as being "very good at homework," and doing what Ms. Meier asked of her. In contrast to 2013, Ms. Marshall did very little fishing that summer, as being on a boat aggravated her symptoms. She stayed at the Lodge until the guests left, which was what her contract called for. Because of her symptoms, she had not agreed to stay on for the shutdown, and she lost the income associated with that

work. [33] During the summer in 2015, Ms. Marshall spent time with her old friend Megan Hilderley, who had moved back to B.C. after living in Halifax for about five years. The two of them had been very close friends since they were in elementary school. Ms. Hilderley described Ms. Marshall as ambitious and a go-getter, very kind and generous and someone who would do anything for you. Before Ms. Hilderley moved to Halifax in 2010, they went on road trips together, and to music festivals. Ms. Hilderley described Ms. Marshall as physically very capable and strong. [34] That summer, Ms. Hilderley and Ms. Marshall met up in Nelson. Ms. Hilderley recalled noticing that Ms. Marshall was "super stiff." Although they went to music festivals together, it was different than prior years. This time, Ms. Marshall spent more time at the camp, getting massages. Ms. Hilderley described Ms. Marshall as "not the same." She was unable to join others dancing and was less involved generally in activities. [35] Ms. Barnett recalled that when Ms. Marshall came home after working that summer, she appeared to be in considerable pain, especially in her low back and hips. She saw Ms. Marshall using a heating pad and ice. [36] According to Ms. Marshall, if she had not been injured in the first accident, she either would have stayed on for the shutdown at Hippa Lodge, or sought work with LandSea. Instead,

in September 2015, she returned to Camosun for her second year. [37] Despite her struggles coping with the effects of her injuries, Ms. Marshall continued to do well academically at Camosun. [38] However, Ms. Marshall was then involved in the second accident. [39] On December 17, 2015, Ms. Marshall was driving home from an exam. The driver in front of her, the defendant Mr. Bryant, did a U-turn and slammed into her vehicle. Ms. Marshall described the impact as "forceful," and her car was deemed a total loss. As Ms. Marshall recalled, after the impact, she felt numb. However, as she recalled, a few days later, her body felt inflamed and aggravated, especially her neck and hips. Before the second accident, Ms. Marshall had started active kinesiology, but had to stop. She continued with physiotherapy and massage therapy. [40] In mid-January 2016, and in connection with the injuries she had sustained in the accidents, Ms. Marshall began chiropractic treatment with Dr. Anna Renaud. Ms. Marshall continued to see Dr. Renaud regularly into early 2020. [41] As Ms. Marshall recalled, over the next few months, her hips and neck were very sore. She resumed active rehabilitation. As Ms. Marshall recalled, she felt very frustrated and angry, since, before the second accident, she had been making progress. Now, she had to start again. She was finding school difficult and started seeing a

counsellor there. As of the spring 2016, she was going twice a week for treatments, and, between treatments and school, Ms. Marshall was finding things overwhelming. She ended up dropping one course that semester. On the other hand, the treatments were helping. [42] In 2016, Ms. Marshall was again in contact with LandSea concerning work, and she was hired as a relief chef when others were on vacation. For example, she worked from May to about mid-August 2016 at a camp facility at Port Mellon. However, as Ms. Marshall recalled, the more she worked, the more her condition deteriorated and her pain increased. As she recalled, at the beginning of August, she aggravated her hip and she had to be flown out of the camp home. Ms. Marshall described the pain at that time as unbearable, and as she recalled, she could barely walk. [43] This was the last time Ms. Marshall worked for LandSea. She decided that she needed to switch career streams, and find work closer to home. [44] Ms. Marshall returned to school for the fall 2016 semester. As she recalled, although she finished the semester, she was in considerable pain, particularly in her neck and hips. [45] Through her friends Laurel Gordon and Pat O'Gorman, Ms. Marshall applied for and was hired as a part-time receptionist at Mr. O'Gorman's real estate office ("ReMax") in Victoria. However, the job at ReMax paid much less than Ms.

Marshall had been able to make working as a remote-catering chef. Moreover, Ms. Marshall continued to experience physical problems. As she recalled, her back and hips were sore and painful from sitting, and her right upper arm would go numb occasionally. [46] On the other hand, despite her physical problems, Ms. Marshall continued to do very well in her studies, and was on the Dean's Honour Roll for both the winter and fall terms in 2016. [47] As Ms. Marshall recalled, by January 2017, she was figuring out how best to position her body so that she could complete her school work. She had committed to a 4-year degree program - a Bachelor of Business Administration - with a focus on human resources and leadership. She felt that this represented at least some of what she had loved about working in a kitchen. However, Ms. Marshall described herself as feeling "very stressed out," because remote catering, which had been her main source of income, was now out. [48] In order to graduate, Ms. Marshall needed to complete two co-op placements. [49] For the first placement, Ms. Marshall was hired in April 2017 to work as a logistics co-ordinator for Atomique Productions Ltd. At the time, Atomique was a leading event productions company in Victoria. It focussed on the production of live events, including civic and private events, concerts and music festivals. It was one of the main event

contractors for the City of Victoria, and (among other things) was involved in the City's hosting of the Commonwealth Games. [50] In 2017, Alex Austin was the Atomique employee responsible for hiring co-op placements. He recalled meeting Ms. Marshall at a Camosun co-op hiring event. In his view, Ms. Marshall was the best possible candidate. He described Ms. Marshall as very funny, someone who had a "sparkle in her eye," and was intelligent and easy to talk to. She appeared also to be physically capable, which was important for the job, as it could be very intense physically. The logistics co-ordinator was expected to (among other things) organize and count inventory, and to make sure the necessary items and equipment were delivered to an event site and then picked up when the event was completed. The person might be required to pull and load items, either from a warehouse or from rental stock, and the items could include anything from furniture and tents, to comfort items for green rooms. Between events, the person would be working in an office setting, scheduling and confirming details (including labour) to make sure that everything was ready for an event. [51] As Ms. Marshall recalled, she told Atomique that she could not do heavy lifting, and was appropriately accommodated. [52] Ms. Marshall began working for Atomique in April 2017. She started early because she had a trip

planned to Costa Rica with her then boyfriend. As she recalled, on that trip, she had a few physical problems, and was very sore the day after going zip-lining. She was also nervous about the flight, and her doctor prescribed some anti-anxiety medication for her. [53] Dr. Renaud explained that, by May 2017, she considered that Ms. Marshall had healed quite well and had her symptoms mostly under control. [54] However, that month, Ms. Marshall was involved in the third accident. [55] In addition to school and work, Ms. Marshall was also volunteering with the Girl Guides (specifically with Sparks), which she had done for several years. On May 28, 2017, Ms. Marshall and a friend, Lorna Erasmus, had left a Sparks' camp and were on their way to Ms. Marshall's job at ReMax. Ms. Erasmus was driving Ms. Marshall's car, and Ms. Marshall was in the front passenger seat. The defendant Zane Hrysko failed to stop at a Stop sign and hit the front driver's side of Ms. Marshall's car. As Ms. Marshall recalled, it was a hard impact, and her car spun around. Ms. Marshall recalled that, when her vehicle was hit, she was thrown to the right and hit her head on the window. Ms. Marshall recalled feeling very scared and confused about what had happened, and concerned about her friend. After checking on Ms. Erasmus, Ms. Marshall sat in the car until the police, ambulance and fire department came. As

she recalled, her head, right elbow, hips and back were all sore. [56] The third accident happened about a block away from Ms. Barnett's home. Ms. Marshall called her, and Ms. Barnett went to the scene. She described Ms. Marshall as appearing disoriented and distraught. [57] Ms. Marshall was again taken to Victoria General Hospital. As Ms. Marshall recalled, at the hospital, she was told that she was in shock, and she was covered in ice packs to cool down her body. Again, she was told to follow up with her family doctor, and her mother picked her up and took her home. [58] As Ms. Marshall recalled, over the next few days, she was in considerable pain and it was hard for her to move. As she recalled, using the computer triggered headaches. The whole right side of her body was swollen and tender for several days after the accident. Her neck, shoulder, back and hips were all aggravated, and, this time, she had many more headaches. [59] Ms. Hilderley recalled seeing Ms. Marshall shortly after the third accident. As she recalled, Ms. Marshall could not turn her head and was very stiff. Ms. Hilderley also noticed that Ms. Marshall was having trouble with her vision, and had bad migraine-like headaches. [60] As Ms. Barnett recalled, after the third accident, Ms. Marshall appeared exhausted. She noticed that her daughter was more disorganized and forgetting things, and she seemed more

stressed out about managing her life. [61] Ms. Gordon continued to keep in touch with Ms. Marshall and saw her regularly after the third accident. As Ms. Gordon recalled, Ms. Marshall's symptoms seemed to worsen and become more pronounced, and she had new symptoms. Ms. Gordon noticed a change in Ms. Marshall's gait, and that she was grimacing. As they had in the past, Ms. Gordon and Ms. Marshall continued to go on walks together, but the walks were much shorter and they were careful to stay on level ground. [62] Ms. Marshall followed the advice of her family doctor, and she continued with physiotherapy and massage therapy. She also continued to see Dr. Renaud. However, as Ms. Marshall recalled, nothing really helped with her headaches. She was now having headaches a couple of times a week, and they were more severe and lasted longer than in the past. Light and sound affected her, opening her eyes was more difficult, and she had occasional nausea. Light and using the computer made her eyes water. Moreover, according to Ms. Marshall, she felt as if her eyes were not connected to her brain. [63] Ms. Marshall went back to work on July 1, 2017. However, she found it very hard, and she continued to have bad headaches. As Ms. Marshall recalled, she was working about 10 hours a week at ReMax, and another 10-15 hours a week at Atomique. She recalled that the summer was very frustrating.

She was in pain, had problems with bending and could not do any heavy lifting. Instead of the logistics job she had been hired to do at Atomique, Ms. Marshall was now doing activities where she could self-pace, and could stay off work if she had a bad headache. As Ms. Marshall recalled, Atomique also set up a cot for her where, if necessary, she could rest to deal with a headache. [64] According to Ms. Marshall, returning to school in September 2017 was very different for her. She had more and more headaches, which she described as migraines. It was hard for her to sit in class because of pain in her hips and neck. Her headaches were the main new issue, and they were much worse than regular headaches. As Ms. Marshall recalled, she had blurry vision and her eyes watered. She explained that she was having a hard time reading, and it was taking her a long time to understand what she was reading. [65] Ms. Marshall was continuing with physiotherapy, massage therapy and chiropractic treatment. [66] In October 2017, Ms. Marshall began working with Lori White, an occupational therapist who became Ms. Marshall's case manager. Ms. White recalled that, at her first meeting with Ms. Marshall, Ms. Marshall reported that her symptoms were affecting her ability to do her job at ReMax. Ms. White then scheduled a visit to Ms. Marshall's office and did an ergonomic assessment. Recommendations

were made. However, Ms. Marshall left ReMax before any of the recommendations were implemented. [67] In any event, for Ms. Marshall, her headaches were now a serious problem and incapacitating. She described herself as doing worse emotionally. She was becoming very upset, frustrated and depressed. She sought out counselling. Ms. Marshall received good grades in the courses she was able to complete that semester, but she did not make the Dean's Honour Roll. [68] Ms. Marshall began her second co-op placement in January 2018, working with the Ministry of Transportation and Infrastructure. She also enrolled in two on-line courses. Ms. Marshall explained that she had been told these courses should be a little easier for her, with no exams. However, the work Ms. Marshall was doing for the Ministry was very much computer-based, and Ms. Marshall was struggling with severe headaches. During her placement, Ms. Marshall missed over 90 hours of work, and, when she missed work, she was not paid. According to Ms. Marshall, she was also still having pain in her neck and shoulder. Despite that, by April, Ms. Marshall had completed her placement. [69] Ms. Hilderley returned to school in January 2018, and she recalled doing "study dates" with Ms. Marshall. As Ms. Hilderley recalled, Ms. Marshall was unable to read or look at a computer screen for more than 30 minutes. [70] In April 2018, at the

suggestion of one of her therapists, Ms. Marshall went to see an optometrist, Dr. Cameron McCrodan, concerning her vision problems. In May 2018, at Dr. McCrodan's recommendation, Ms. Marshall began a course of "vision therapy" with Dr. McCrodan, which lasted until February 2019. Dr. McCrodan also fit Ms. Marshall with prescription eyeglasses, and "fit-over glasses" designed especially for computer use. Ms. Marshall described these as "clunky," and wrapping around her ears. [71] For the summer of 2018, Ms. Marshall was hired back at Atomique. However, despite therapies, she continued to struggle physically and with bad headaches. [72] Although Ms. Marshall had signed up for courses for the fall 2018 semester, she withdrew from them. Halinka Szwender was Ms. Marshall's instructor in one of these courses. Ms. Szwender is a co-op field instructor at Camosun, and she had been Ms. Marshall's co-op field instructor for her co-op with the Ministry of Transportation, which Ms. Marshall completed successfully. As Ms. Szwender recalled, Ms. Marshall was enrolled in the "Organizational Change" course taught by Ms. Szwender in the fall 2018 semester. Ms. Szwender recalled that Ms. Marshall's attendance was sporadic and infrequent. She recalled that, when she attended, Ms. Marshall wore wrap-around glasses (the eyewear prescribed by Dr. McCrodan), and that she was sensitive to light and had

tears streaming down her face. She recalled that Ms. Marshall told her she was suffering from migraines. Ms. Szwender recalled that she gave Ms. Marshall a failing grade in the course. [73] Ms. Marshall explained that, at the time, she felt overwhelmed and very frustrated. Before the accidents, she had been able to work 80 hours a week. Now, she was frequently unable to work, mostly because of her headaches. [74] Ms. Marshall was again working with an occupational therapist. Together, they created goals and put together a new sleep regime for Ms. Marshall. Ms. Marshall was also working on relaxation techniques. However, instead of helping Ms. Marshall, she felt even more overwhelmed and anxious about her situation. [75] Ms. Marshall returned to school in January 2019. As she recalled, being on the computer made her eyes water, as did light, and, eventually, a headache would follow. She was continuing with chiropractic treatment, physiotherapy and massage therapy, as well as active kinesiology to work on her neck, shoulder and hip pain. Ms. Marshall explained that she would try to go to the gym two or three times a week. Despite her struggles, and with determination, Ms. Marshall was able to complete her courses for the Winter 2019 semester, with very good grades. She again was on the Dean's Honour Roll. [76] Ms. Marshall was asked to come back and work for Atomique for the

summer of 2019, and she agreed. Ms. Marshall explained that, although she told her manager that she could only work 20 hours a week, Atomique needed her to work much longer hours, and that is what she ended up doing. As Ms. Marshall recalled, some weeks she worked close to 70 hours. She described her work experience that summer as very difficult, and overwhelming. She had bad headaches, and pain in her neck, hips and shoulder. Because she was working so much, she was not able to see or spend time with her friends. Ms. Marshall described herself as exhausted and in pain, and she left Atomique at the beginning of August 2019. [77] Ms. Barnett recalled that when Ms. Marshall came home after a day of work, she was exhausted, and she again described her daughter as very disorganized. [78] That summer, Ms. Marshall had signed up for two courses. She failed both. [79] As Ms. Gordon recalled, in 2019, she and Ms. Marshall would make dates for lunch or walks, but Ms. Marshall would cancel, which was out of character for her. Ms. Gordon noticed that Ms. Marshall seemed not as enthusiastic or engaged, and when Ms. Gordon asked Ms. Marshall if everything was alright, Ms. Marshall would become tearful. She noticed that Ms. Marshall always seemed tired, and she was now moving more stiffly. According to Ms. Gordon, Ms. Marshall seemed to have lost her energy and enthusiasm for life and seemed

to be disconnected from her friends. [80] In September 2019, Ms. Marshall began another co-op placement with BC Pensions Corporation. The placement was scheduled from September 3 to December 20, 2019. Ms. Marshall explained that she did not sign up for any courses that semester because she wanted to dedicate herself to making her co-op successful. Ms. Marshall was hired to work 35 hours a week as a Human Resources program assistant (an entry level position), doing employee screening and on-line research. She estimated that about 85-90% of her work was on the computer. According to Ms. Marshall, she found the work very difficult, especially the need to be on the computer. It provoked bad headaches, and her eyes watered from staring at the computer screen. Her immediate supervisor, Jenny Reid, worked with her to see if a work station with different lighting helped. It did not. Ms. Marshall was moved into the communications department to try to relieve some of the pressure on her. However, this did not help either, as she was still required to spend most of her time on the computer. As Ms. Marshall recalled, the worst trigger for her headaches was having to read documents on the computer. Ms. Marshall explained that she had more tolerance for work at the beginning of a week, and could be on a computer for four to five hours before developing a headache. However, Ms. Marshall

explained, by the end of the work week, she had no tolerance for work on a computer, and she would need most of the weekend to recover. As Ms. Marshall explained, the job took all the energy she had. [81] Records show that, in two months, Ms. Marshall missed 67.7 hours of work. [82] Ms. Barnett recalled Ms. Marshall calling in sick several times a week, and that once, she did so on four consecutive days. She recalled that Ms. Marshall was having bad migraine-like headaches and needed to be in a dark room. She recalled hearing her daughter vomiting, and being unable to eat. As Ms. Barnett recalled, once she had to pick Ms. Marshall up from work. [83] Ms. Marshall was terminated from her position at the end of October. As Ms. Marshall recalled, she met with Ms. Reid and Ms. Reid's supervisor, Julie Pitre. Ms. Pitre is the assistant director of employee recruitment and retention for BC Pensions. She explained that, although she was not involved in the day-to-day supervision of Ms. Marshall, she could see Ms. Marshall's work station from her office. Ms. Pitre recalled noticing that Ms. Marshall wiped her eyes frequently and was using "eyewear," and that Ms. Marshall appeared to be suffering looking at the computer screen. Ms. Pitre made the decision to terminate Ms. Marshall's co-op early because Ms. Marshall was unable to attend work on a consistent basis. As Ms. Pitre recalled,

Ms. Reid had come to her in September about the problems with Ms. Marshall's attendance. [84] At the meeting with Ms. Reid and Ms. Pitre, Ms. Marshall recalls being told that the human resources department needed an employee who was reliable and who could work on and use the computer. Ms. Marshall recalled being very upset at the time, and very discouraged. At trial, Ms. Marshall was quite emotional when testifying about these events. They were clearly a serious blow to her, given her hopes to pursue a career in this area once she completed her degree. [85] As Ms. Marshall recalled, in the fall of 2019, and into early 2020, she was having a very hard time. She had lost her job, and she was unsure what to do next. Although she had almost completed her degree, an experienced human resources person (Ms. Pitre) had told her that she did not think Ms. Marshall could do that kind of work. Ms. Marshall described herself as very depressed. Before the accidents, she had rarely missed a day of work, and did not recall even taking time off. Now, she was no longer a reliable employee. Although Ms. Marshall had not signed up for any courses for the Fall 2019 semester, she had still not been able to complete her co-op placement successfully. Ms. Marshall found herself missing appointments with her occupational therapist. Eventually, her therapist recommended discharging her on the basis that

Ms. Marshall was not completely committed to her therapy. However, Ms. Marshall explained that she felt overwhelmed and not able to do everything expected of her. [86] Ms. Marshall returned to school in January 2020, and enrolled in one course. She was determined to finish her degree, and explained that she had decided to focus on her health and well-being. She explained that doing only one course did not activate all of her injuries. She had more time to see her treaters, which was also better. Her occupational therapist was working with Ms. Marshall on taking breaks and lowering expectations. Ms. Marshall found that advice very helpful. [87] According to Ms. Marshall, before the first accident, she did virtually all of the household chores, although she and Mr. Dyson were living together. Ms. Marshall looked after all of the deep cleaning, grocery shopping and cooking. She was a very active gardener. Ms. Marshall explained that, after the first accident, she moved in with her mother and step-father, and she lived there from the fall of 2014 until the spring of 2020. According to Ms. Marshall, when she was living with her parents, her mother looked after many of the household chores. Ms. Marshall explained that she did as much as she could, but doing housework aggravated her symptoms, especially in her right arm and neck. Lifting and carrying groceries aggravated her hips. Her

mother helped Ms. Marshall clean her room and get her laundry done. Ms. Marshall estimated that, when living with her parents, she was doing between 5% to 10% of the household chores. [88] Ms. Barnett essentially confirmed Ms. Marshall's evidence. According to Ms. Barnett, she did most of the cooking for the household, although sometimes Ms. Marshall would make herself some eggs. Ms. Marshall rarely cooked dinner for the family. [89] In the spring of 2020, Ms. Marshall and her current partner moved into a large basement suite that also has a large yard. Ms. Marshall explained that, when they first moved in, she attempted to do half the household chores. However, she was having trouble with her back and neck. She explained that her partner helps with the deep cleaning and folds laundry. The two of them do the cooking together, and Ms. Marshall described her partner as like her sous chef. Ms. Marshall explained that her partner has built raised garden beds that she can work with, so, although her garden is now smaller, she is able again to do some gardening. [90] Although Ms. Marshall's involvement with Girl Guides ceased after the third accident, she began volunteering with the organization known as the "Odd Fellows." Ms. Marshall explained that she is a member of a group that, twice a month, prepares and delivers food to individuals who are homeless. Ms. Marshall explained

that, although she has pain symptoms in her neck, right shoulder and upper back, it felt good to be able to help people and do something for the community. She explained that it also felt good to be back in the kitchen, and she was enjoying the social aspect of her volunteer work. [91] On the other hand, according to Ms. Marshall, since the accidents, she has been unable to participate in other social activities that she enjoyed before the accidents. Cooking for friends was something she loved doing, which she is no longer able to do. The Odd Fellows asked her to be head chef, but she had to say no. She enjoyed camping and attending summer music festivals with friends. Ms. Marshall explained that her physical issues now make it harder to move around and participate in those events, something Ms. Hilderley confirmed. Lighting can trigger migraine-like headaches. Before the accidents, she enjoyed other physical activities such as swimming and hiking, and she enjoyed reading for pleasure. Now, if she goes on a hike, it cannot be a long one, and she needs level ground. Ms. Marshall explained that, especially after the third accident, reading has been harder for her, and she struggles to absorb what she is reading. According to Ms. Marshall, she finds it hard to be "present" with friends when her back and neck are hurting, whereas she described herself before the accidents as "a

very good friend" (something Ms. Hilderley confirmed). [92] According to Ms. Hilderley, she and Ms. Marshall try to see one another about once a week. However, according to Ms. Hilderley, when she and Ms. Marshall make plans, about half the time Ms. Marshall cancels, usually because of headaches. Ms. Hilderley described Ms. Marshall as not as optimistic or hopeful as she was before the accidents, when she had a view of her career. Now, talking about plans is upsetting for Ms. Marshall. [93] According to Ms. Barnett, before the accidents, she and Ms. Marshall used to go on many long walks together. Now, even though she and Ms. Marshall still go out for a walk, Ms. Marshall is not able to keep up. Ms. Barnett keeps in close touch with Ms. Marshall. She described her daughter as looking happier now that she is no longer working, and able to manage her appointments. However, she also described her daughter as having lost confidence because she never wanted her mother to be supporting her at her age. Ms. Barnett said that she is worried about her daughter's future. Ms. Barnett described her daughter as like a different person now. [94] According to Ms. Marshall, before the accidents, she had been very independent and confident. After the accidents, she no longer had her own home, and, at age 30 (and until earlier this year), was living with her mother and step-father. According to

Ms. Marshall, after the accidents, she lost a great deal of confidence. [95] As of trial, Ms. Marshall was concentrating on finishing her degree. She planned to do so by the end of this year, or, at the latest, by the end of the winter semester in 2021. Ms. Marshall explained that, for the winter 2020 semester, she was enrolled in only one course and was not working. She was working on the computer for about an hour a day, something she had discussed with her pain therapist. According to Ms. Marshall, with the reduced course load and demands on her time, she has been able to better manage her symptoms. These include her headache symptoms, for which she has been prescribed amitriptyline. Ms. Marshall described herself as having pain, but it was manageable for her, and her mood was much better. Ms. Marshall explained that she was no longer feeling so overwhelmed and was feeling less depressed about her situation. She explained that her counsellor was helping her to accept her current capabilities and manage her expectations. [96] Ms. Marshall explained that, after finishing her degree, she planned to look for work. However, Ms. Marshall explained that she would be looking for something without time-pressure, more self-directed and with flexible hours. She said that she is now not sure what she will do, and that the future is different from what she had planned for herself.

4. The Experts (a) The medical experts [97] Opinion evidence from six medical doctors was tendered at trial, all of whom carried out independent medical assessments of Ms. Marshall. All of the medical experts testified at trial. I would describe the areas of disagreement between Ms. Marshall's experts and the defendants' experts as relatively narrow. [98] Ms. Marshall tendered opinion evidence from: Dr. Douglas Hamm, who practices in the area of occupational medicine; Dr. Tony Giantomaso, a physiatrist; Dr. Michael Spivak, a psychiatrist; and Dr. Briar Sexton, a neuro-ophthalmologist. [99] The defendants tendered opinion evidence from: Dr. Brian Scarth, a psychiatrist; and Dr. Gordon Robinson, a neurologist. (i) Dr. Hamm and Dr. Giantomaso [100] Dr. Hamm was tendered and qualified as an expert in occupational medicine. He carried out two independent medical assessments of Ms. Marshall, on November 26, 2015 (a few weeks before the second accident) and February 22, 2017. [101] Based on his first assessment, Dr. Hamm diagnosed Ms. Marshall with post-traumatic chronic mechanical neck and back pain, and an ongoing mood disorder (which Dr. Hamm described as mild to moderate) with anxiety and depressive features. In Dr. Hamm's opinion, the latter was "a situational response to Ms. Marshall's chronic pain difficulties in her vocational and recreational activities and her perceived

diminished quality of life." In Dr. Hamm's opinion, Ms. Marshall's description of exacerbations of her pain were consistent with his physical findings. [102] Dr. Hamm considered that assessment by a physiatrist would be helpful for Ms. Marshall, and he deferred to the physiatrist's opinion concerning rehabilitation measures, including pain management. In Dr. Hamm's opinion, Ms. Marshall was also likely to benefit from psychological and stress management counselling. Dr. Hamm was of the view that Ms. Marshall would be a good candidate for a multi-disciplinary pain-management program. Dr. Hamm did not consider that, through such a program, Ms. Marshall would significantly improve her ability to sustain work as a remote-catering chef, since the ergonomics of the work would still trigger pain. However, he expected that Ms. Marshall would acquire techniques and coping skills to help her deal with "her chronic pain pattern" and improve her quality of life. [103] In Dr. Hamm's opinion, as a result of the injuries Ms. Marshall sustained in the first accident, she had experienced "significant challenges in her competitive employment because of her chronic pain." In Dr. Hamm's opinion, Ms. Marshall's chronic pain had also resulted in some limitations in her tolerance for sustained study. [104] In Dr. Hamm's opinion, it was too early as of his first assessment to say whether Ms. Marshall

had reached "maximum medical improvement." In his opinion, Ms. Marshall still had potential for clinical improvement and better pain management. Dr. Hamm stated that, based on Ms. Marshall's "current pain pattern and her related functional tolerances, I do not think that Ms. Marshall will be able to tolerate long-term full-time work as a remote catering chef." On the other hand, while a more sedentary career, such as in human resources, can involve ergonomic triggers, Dr. Hamm thought this would be more manageable. In Dr. Hamm's view, given Ms. Marshall's "current clinical picture," she was "well-advised to pursue alternative work in order to better manage her chronic pain." [105] Based on Dr. Hamm's second assessment, pain from Ms. Marshall's first accident had been aggravated as a result of the second accident. In addition, she had developed right-sided hip pain with some shooting pain down her right leg, suggestive of sacroiliac symptoms. In Dr. Hamm's opinion, Ms. Marshall continued to have chronic neck and back pain as a result of the two accidents, and she continued to have moderate pain symptomatology throughout her neck, right scapular and shoulder areas and over her right lumbosacral area. She also continued to have a mild to moderate mood disorder. [106] Dr. Hamm again recommended that Ms. Marshall be assessed by a physiatrist, and that she receive psychological

counselling for her ongoing mood issues (which Dr. Hamm described as "somewhat worse" since his first assessment). He also recommended an assessment by a professional vocational counsellor. With respect to prognosis, in Dr. Hamm's opinion, Ms. Marshall was unlikely to regain functional tolerance for more than light physical demand competitive employment activities "in the foreseeable future," and she needed to redirect her career choices accordingly. [107] With respect to occupational and educational limitations, in Dr. Hamm's opinion, Ms. Marshall was not suited to work with heavy physical demands. He recommended that she avoid prolonged neck and back postures and observed that she would need "optimum ergonomics" at her workstation for the foreseeable future. In Dr. Hamm's opinion, Ms. Marshall needed to find work with sedentary to light physical demands, and with the ability to self-pace and change postures as needed. He recommended that Ms. Marshall avoid production-based work, and again recommended a vocational assessment. He considered that she was capable of full-time work in a lifetime career with suitable job demands. [108] Dr. Giantomaso was tendered and qualified as a specialist in physical medicine and rehabilitation, including the management of spinal injuries, head trauma and chronic pain (including migraines and headaches). He carried out an independent medical

assessment of Ms. Marshall on November 29, 2019. [109] In Dr. Giantomaso's opinion, the following diagnoses were directly related to the first accident: (a) post-traumatic non-displaced right sternal and clavicular fractures, from which Ms. Marshall recovered without ongoing clavicular or sternal pain; (b) post-traumatic cervical sprain/strain injury consistent with whiplash associated disorder II injury; chronic; (c) post-traumatic thoracic sprain/strain injury grade 1-2; chronic; (d) post-traumatic lumbar sprain/strain injury grade 1-2; chronic; (e) mild post traumatic headaches "seemingly" cervicogenic, without many migrainous-type features. [110] With respect to the second accident, Dr. Giantomaso diagnosed the following as "likely related": exacerbation and aggravation of pre-existing cervical, thoracic and lumbar pain. In his opinion, pain was "chronic and ongoing" prior to the third accident, but "fairly mild." [111] Finally, Dr. Giantomaso diagnosed the following as "temporally and causally related" to the third accident: (a) mild traumatic brain injury, but no significant ongoing sequelae of brain injury; (b) significant post-traumatic headaches, including new onset headaches with migrainous features; chronic and ongoing; and (c) exacerbation and aggravation of pre-existing cervical, thoracic and lumbar sprain/strain injuries grade 1-2; chronic. [112] Dr. Giantomaso

said that a diagnosis of post-traumatic low mood and anxiety was outside the scope of his specialty, but "possibly" related to the accidents. [113] In Dr. Giantomaso's opinion, the third accident was the most severe with respect to "post traumatic issues," and, in that respect, he specifically noted Ms. Marshall's development of "significant post-traumatic headaches with migrainous features." He commented, negatively, on the fact that Ms. Marshall had not yet seen a neurologist even though, in his opinion, she met the criteria for chronic migraine. Dr. Giantomaso said: At this point it is quite obvious that she should be directed to a physiatrist or neurologist with an interest in post-traumatic migraine headaches and post-traumatic pain management. In particular, she should follow at least basic treatments for migraine management including migraine medications and Botox. [114] Dr. Giantomaso strongly recommended an immediate referral to a neurologist or physiatrist with an interest in the treatment of post-traumatic migraines. In Dr. Giantomaso's opinion: [Ms. Marshall] would definitely benefit from trials of amitriptyline 10 to 20 mg at night as well as Maxalt Rapid Dissolve at the onset of a migraine headache. If this is insufficient, she should then go on to trials of Aimovig 70-140 mg injections every month and/or trials of Botox for migraine headaches. In my experience

this type of treatment can be very effective for post-traumatic migraines. [115] Dr. Giantomaso explained that amitriptyline is usually one of the first drugs used to treat migraine-like headaches. Although it has side effects, it can be helpful. He described Maxalt as another medication in the triptan family, and a migraine-abortive medication, but expensive. Dr. Giantomaso described Aimovig as a new medication, very expensive and something that would be used monthly. He described it as something that can be a "game changer" for a patient. Dr. Giantomaso described migraines as extremely disabling, but with treatment, physicians can get patients functioning. He estimated that about 50% of patients respond well to treatment. [116] With respect to prognosis, Dr. Giantomaso noted that the "vast majority of improvement through natural history and rehabilitation would have been expected to have occurred in the first 6 to 12 months post-trauma or earlier." He commented that the prognosis after multiple whiplash injuries is worse than from a single accident. In Dr. Giantomaso's opinion, Ms. Marshall will likely continue to experience chronic pain "to some degree long term in the future." He commented that, by following his recommendations, Ms. Marshall may experience decreased pain and increased function in the future, however this should be considered part of a long-term pain

management strategy and should not necessarily be considered curative. (ii) The headache specialists [117] Dr. Sexton was tendered and qualified as a neuro-ophthalmologist, qualified to give opinion evidence concerning headaches and eye disorders. Dr. Sexton carried out an independent medical assessment of Ms. Marshall on January 22, 2020. [118] In Dr. Sexton's opinion, after the first accident, Ms. Marshall met the diagnostic criteria for chronic headache following injury to her neck. Following the second accident, Ms. Marshall experienced an exacerbation of her headaches, with the second accident being the most likely cause. In Dr. Sexton's opinion, Ms. Marshall experienced further exacerbation of headache frequency and intensity after the third accident. Based on Ms. Marshall's reports, her symptoms took on a "migraine phenotype," and, in Dr. Sexton's opinion, Ms. Marshall's vision symptoms were and are related to these migraine-type headaches. Ms. Marshall's continuing headaches are secondary to the motor vehicle accidents. [119] In Dr. Sexton's opinion, Ms. Marshall requires prophylactic treatment to reduce her headache frequency and intensity. Dr. Sexton identified Botox, Aimovig and Emgality as possible treatment agents, and she noted that any of these agents could reduce headache intensity and frequency by 50% in about 50% of individuals. Dr. Sexton noted that Aimovig

and Emgality need to be trialed for at least six months each before treatment failure is determined. Dr. Sexton also mentioned a number of "second line agents," including topiramate. [120] In Dr. Sexton's opinion, if none of the medications reduced Ms. Marshall's headache burden: it is unlikely that she will get significant spontaneous improvement at this juncture. Nor is she likely to get significant spontaneous worsening. If she remains at her current level of function she is unlikely to be able to work full time. She will not be able to work full time in front of a computer screen. [121] In Dr. Sexton's opinion, there was no role for vision therapy in Ms. Marshall's treatment, and Ms. Marshall did not have binocular dysfunction. [122] Dr. Robinson was tendered and qualified as a neurologist, qualified to give opinion evidence in the area of neurology and headache disorders, including the cause of and prognosis for Ms. Marshall's headaches, as well as treatment recommendations. Dr. Robinson saw Ms. Marshall for an independent medical assessment on March 10, 2020. [123] In Dr. Robinson's opinion, Ms. Marshall did not sustain a mild traumatic brain injury in any of the accidents. [124] In Dr. Robinson's opinion, Ms. Marshall's headaches began in clear temporal relationship to the first accident, and appeared to be mainly aggravated by the second accident. In Dr. Robinson's

opinion, soft tissue injuries to Ms. Marshall's neck as well as increasing psychological symptoms and sleep disruption have probably been major factors aggravating Ms. Marshall's headaches. In Dr. Robinson's opinion, Ms. Marshall's history and examination were consistent with a diagnosis of persistent post-traumatic headaches related to soft tissue injury to Ms. Marshall's neck sustained in the three accidents. He explained that headache is a common symptom following soft tissue injury to the neck, and that the head pain may have various characteristics that are similar to primary headaches, such as migraine and tension-type headaches. Dr. Robinson explained that, in the majority of cases, clinical examination and investigation is normal in patients suffering from recurring headache, and the diagnosis rests on the temporal relationship to trauma and the historical features reported by the patient. Dr. Robinson explained that triggers or aggravators to moderate to severe headache episodes often include physical activities requiring repetitive neck movements or the need to maintain a fixed neck position. [125] Dr. Robinson explained further that the treatment of chronic headache related to head and neck trauma "is usually difficult." In Dr. Robinson's opinion, medications are often unhelpful in the treatment of chronic post-traumatic headache. Analgesics, muscle relaxants and

anti-inflammatory drugs are usually of little value. However, "[m]igraine abortive medications (triptans) such as sumatriptan (Imitrex) may be helpful when headaches have migrainous features." In Dr. Robinson's opinion, given that Ms. Marshall's more severe headaches have migrainous features, "it is possible that these would be improved with the use of a triptan medication." Dr. Robinson noted that there are a number of drugs used to prevent migraine attacks. In Dr. Robinson's opinion, Botox is "the treatment of choice" for Ms. Marshall's post-traumatic headaches. [126] With respect to prognosis, in Dr. Robinson's opinion, Ms. Marshall "probably will continue to suffer from posttraumatic headache indefinitely. It is possible that there will be improvement over the next 2-3 years particularly should her headaches respond to the treatments suggested in this report." Further, in Dr. Robinson's opinion, Ms. Marshall "will probably be able to work at least part-time in a job with light to moderate physical demands. Ideally this should have flexible hours and the ability to regularly move about rather than be stationary for long hours in front of a computer." (iii) The psychiatrists [127] Both Dr. Spivak and Dr. Scarth were tendered and qualified as psychiatrists, qualified to give opinion evidence in that area concerning Ms. Marshall, including concerning the diagnosis of the

psychiatric impact of Ms. Marshall's injuries from the accidents, prognosis and treatments. [128] Dr. Spivak carried out an independent medical assessment of Ms. Marshall on December 14, 2019. [129] In Dr. Spivak's opinion, in the context of Ms. Marshall's progressive physical challenges following the accidents, and her recognition of the severity and extent of her physical impairments, she developed depressive and anxiety symptoms. While these symptoms may have met the criteria for a diagnosis of a major depressive disorder at some point, in Dr. Spivak's opinion, "the overall clinical picture of [Ms. Marshall's] symptoms is more suggestive of a diagnosis of an adjustment disorder with mixed anxiety and depression." [130] Dr. Spivak noted other stressors in Ms. Marshall's life since the first accident. However, in his opinion, the "driving force" behind Ms. Marshall's emotional symptoms was always the impact the accidents had on her physically and how they limited her overall functioning. In Dr. Spivak's opinion: It is the physical pain and consequential limitations from the accidents that have led to her emotional symptoms. . . . There are no other factors that could account for the breadth and severity of her psychiatric symptoms, outside of factors related to the motor vehicle accidents. Her symptoms have correlated logically and temporally with the indexed motor vehicle

accidents. [131] Dr. Spivak described Ms. Marshall as having been "persistently affected by a dysphoric disposition and psychologically plagued by an overall sense of loss of self." [132] Since, in Dr. Spivak's opinion, Ms. Marshall's psychiatric symptoms are being driven largely by her physical issues, "it will be essential that Ms. Marshall receives optimal physical treatment and in particular, treatment of her pain." Dr. Spivak considered Ms. Marshall's prognosis to be "guarded to poor." In Dr. Spivak's opinion, having regular psychotherapy with someone who has expertise in pain management might provide Ms. Marshall with some benefit. At the very least, Dr. Spivak recommended a referral to a psychologist who could provide her with cognitive behavioural therapy. [133] Dr. Scarth saw Ms. Marshall for assessment on October 18, 2019. [134] Similar to Dr. Spivak, Dr. Scarth diagnosed Ms. Marshall with "Adjustment Disorder with Mixed Anxiety and Depressed Mood." [135] In Dr. Scarth's opinion, in the absence of the accidents, Ms. Marshall would not have developed the anxiety and later mood complaints. In his opinion: [T]here was likely a cumulative impact of trauma related to the three accidents, however, from a psychiatric perspective, the third accident was the most significant with the majority of the current psychiatric complaints in mood and anxiety developing following the

third accident. [136] Like Dr. Spivak, Dr. Scarth noted some additional stressors in Ms. Marshall's life (in late 2015 and early 2016) and unrelated to any of the accidents. However, in Dr. Scarth's opinion, absent the accidents, Ms. Marshall did not have any increased vulnerability to the development of psychiatric problems. At most, in Dr. Scarth's opinion, Ms. Marshall's reaction to those other stressors would have been the development of anxiety, and then, when those issues resolved, there would have been a resolution of the associated anxiety. [137] Accordingly, in Dr. Scarth's opinion, Ms. Marshall's current anxiety "is more likely than not causally related to the subject accidents through the impact of any pain attributable to those accidents and her current work and financial stressors. Dr. Scarth said: I particularly noted the extent of her distress over her current work situation. In my opinion, much of her distress represents dissatisfaction with her new professional career and the loss of her previous occupational role as a chef. [138] In Dr. Scarth's opinion, Ms. Marshall has not had a functional disability from a psychiatric perspective, and he found no indication of significant cognitive impairments. [139] With respect to prognosis, in Dr. Scarth's opinion, Ms. Marshall's future psychiatric recovery would be dependent on the course of her physical injuries.

Assuming that she continued to have daily pain for the foreseeable future, Dr. Scarth expected that Ms. Marshall would have associated persisting anxiety and lower mood on a chronic basis. In his opinion, the combination of insomnia and chronic pain would increase Ms. Marshall's risk for development of more significant mood disorders, such as Major Depressive Disorder, in the future. (b) The non-medical experts [140] In addition to the medical opinion evidence, Ms. Marshall also tendered opinion evidence from: Jodi Fischer, an occupational therapist; Derek Nordin, a vocational consultant; and Darren Benning, an economist. All testified at trial. [141] In response to Mr. Benning's opinion evidence, the defendants tendered opinion evidence from Mark Gosling, also an economist, who also testified at trial. [142] Ms. Fischer was tendered and qualified as an occupational therapist and certified life care planner, qualified to give opinion evidence concerning Ms. Marshall's functional abilities and limitations for work and activities of daily living, and concerning costs of future care for Ms. Marshall. Ms. Fischer has practiced as an occupational therapist for 27 years, and, since 2005, she has been a clinical assistant professor in the Faculty of Medicine at the University of British Columbia, Department of Occupational Science and Occupational Therapy. [143] Ms. Fischer carried

out a functional and work capacity assessment of Ms. Marshall over two days, February 4 and 5, 2020. [144] In her oral evidence, Ms. Fischer explained that, because she was evaluating both whether Ms. Marshall could return to her pre-accident work as a chef, and her abilities and limitations with respect to her plan to pursue office work, substantial testing was required, and it was important to evaluate Ms. Marshall over two full days. [145] With respect to Ms. Marshall's overall abilities and limitations, Ms. Fischer's conclusions included the following: ● Ms. Marshall is capable of work activity in the "Sedentary" and some "Light strength" categories. While she is capable of handling loads in the Light strength range on an occasional basis, frequent lifting should be avoided; ● Ms. Marshall has a sitting tolerance of approximately 1-2 hours at a time, depending on the associated activity. When the task allows her to maintain upright neck and back postures, with no prolonged neck flexion and minimal reaching, she will be able to sit for up to two hours at a time; ● in contrast, when work tasks involve computer use or prolonged periods of looking down (or both), work intervals should be limited to one hour at a time. In Ms. Fischer's opinion, this is particularly important when concentration demands are high and attention to detail is also important; ● with jobs involving

primarily work at the computer for full days, Ms. Marshall would have difficulty. In these circumstances, Ms. Marshall would be limited to part-time work. In Ms. Fischer's opinion, Ms. Marshall has a greater likelihood of success in managing full-time employment that involves a variety of sedentary or light tasks that do not involve prolonged static neck and back postures, such as concentrated desk and computer work. [146] In Ms. Fischer's opinion, based on her evaluation and testing, Ms. Marshall was not physically capable of her pre-accident occupation of cook or chef. The specific limitations Ms. Fischer identified were the strength requirements, and neck flexion, trunk bending and standing requirements. [147] In Ms. Fischer's opinion, Ms. Marshall also had functional capacity limitations respecting work in human resources, consistent with the degree she intended to obtain from Camosun. In Ms. Fischer's opinion, the results of the work capacity testing showed Ms. Marshall to have limitations with prolonged sitting when combined with static postures, such as prolonged looking down and work on the computer. In Ms. Fischer's opinion: . . . With jobs involving a significant [amount] of work at the computer day [sic], FCE findings indicate [Ms. Marshall] would be limited to part-time employment (20-30 hours per week). She is more likely to succeed and be able to manage full time

employment in jobs that involve a variety of tasks and physical demands (e.g. work on the computer interspersed with meetings, interviews, etc.). The opportunity to vary her body position and take regular breaks during the day will be important. . . . It is recommended that [Ms. Marshall] focus on completing her degree, and not try to concurrently work. This will better ensure she is able to complete the program in a timely manner and maintain a consistent course load (i.e. not drop courses). This will also allow her time to focus on her active rehab program and attend counselling to learn how to better manage her pain and other symptoms such as anxiety. Once she has completed her degree, she would benefit from meeting with a vocational rehabilitation consultant for assistance with identifying a suitable career path and potentially receiving assistance with a job search that takes into consideration her ongoing symptoms and functional limitations. [148] I will deal with Ms. Fischer's cost of future care recommendations below, in the context of that discussion. [149] Mr. Nordin was tendered and qualified as a vocational consultant, qualified to give opinion evidence concerning Ms. Marshall's vocational prospects. Mr. Nordin carried out an assessment of Ms. Marshall (which included an interview and completion by her of a vocational test battery) on February 24, 2020. [150] Mr.

Nordin expressed significant concern, from a vocational rehabilitation perspective, concerning Ms. Marshall's competitiveness for employment on completion of her degree. He based this on Ms. Marshall's reported difficulties "in the physical, cognitive, and emotional domains." Mr. Nordin expected that Ms. Marshall's migraine-like headaches would have a negative impact on her ability to maintain employment in a managerial position, and he expressed the view that Ms. Marshall's reported cognitive difficulties "will also impact her ability to manage employment with high levels of stress and responsibility." In Mr. Nordin's opinion, given Ms. Marshall's symptoms (should there be no improvement in the future), positions she could have considered with her degree, such as human resources managers and professionals, will no longer be manageable for her, as the vast majority of jobs that Ms. Marshall would be able to access on completion of her degree would very likely involve extensive computer use. [151] In Mr. Nordin's opinion, while Ms. Marshall would not be able to tolerate employment with high cognitive and emotional demands, she will still be employable on completion of her degree. However, in Mr. Nordin's opinion, if there were to be no improvement in Ms. Marshall's overall functioning, then the occupational options for her will be at the lower demand level. These would include

occupations such as general office support workers and receptionists, for example. [152] Mr. Benning and Mr. Gosling were both tendered and qualified as economists, qualified to give opinion evidence concerning the calculation of past loss of employment income, the present value of future loss of employment income, and the present value of cost of future care. [153] I will address Mr. Benning's and Mr. Gosling's opinion evidence below, in the context of the discussion of loss of earning capacity and cost of future care.

5. Findings and conclusions concerning Ms. Marshall's injuries [154] Before setting out my findings, I will comment very briefly on the witnesses. [155] Ms. Marshall's credibility and reliability are, of course, important. The medical opinions are based, in large part, on the history provided by Ms. Marshall and on her self-reports of pain and limitations. The weight that can be given to those opinions therefore depends on the court's assessment of Ms. Marshall's credibility and on the consistency of her evidence at trial with the information she provided to the doctors. [156] On the other hand, Ms. Marshall's credibility and reliability was never seriously challenged by the defendants. In my opinion, the video surveillance evidence of Ms. Marshall introduced by the defendants at trial did nothing to undermine, in any significant way, Ms. Marshall's evidence or self-reports. It certainly did not do so when examined in the context of other evidence presented at trial. [157] In my view, Ms. Marshall is both a credible and reliable witness. Her evidence concerning her life and functioning before the accidents, and her pain and limitations following the accidents, is supported by both the medical opinion evidence and Ms. Fischer's functional capacity evaluation, and by the evidence of the lay witnesses. The medical opinion evidence explains, from a medical perspective, how the

injuries Ms. Marshall sustained in the accidents can result (and, in Ms. Marshall's case, have resulted) in the pain and limitations Ms. Marshall has experienced and continues to experience. Dr. Sexton and Dr. Robinson are largely in agreement concerning the cause of Ms. Marshall's headaches, which have resulted in significant impairments, as Ms. Marshall (and others) have described. [158] I find that, as a result of the first accident, Ms. Marshall sustained sternal and clavicle fractures. These were painful injuries. However, Ms. Marshall recovered completely, without any ongoing clavicular or sternal pain. I find that Ms. Marshall also sustained soft tissue injuries to her cervical spine, thoracic spine and lumbar spine, as a result of which she has developed chronic pain in those areas. As a result of the injuries to her neck (or cervical spine), Ms. Marshall also developed post-traumatic headaches. As a result of the injuries she sustained, after living independently for a number of years and financially supporting herself, Ms. Marshall moved back to live with her mother and step-father. [159] I find that, in May 2014, and as a result of the injuries she had sustained in the first accident, Ms. Marshall made the decision to pursue post-secondary education at Camosun College as a back-up plan to continuing to pursue her career as a remote-catering chef. In doing so, Ms.

Marshall was taking reasonable steps to mitigate the potential consequences from her injuries. Following the first accident, Ms. Marshall returned to work as a remote-catering chef. However, I find that as a result of her injuries, she struggled to perform many of the physical tasks associated with her work and was in pain. [160] I find that, by December 2015, through diligent and hard work at rehabilitation, Ms. Marshall's physical condition had improved. However, she was then involved in the second accident on December 17, 2015. I find that as a result of this accident, Ms. Marshall's pre-existing, and now chronic, cervical, thoracic and lumbar pain was aggravated and exacerbated, as were her headaches. [161] Despite the effects of her injuries, and through hard work and determination, Ms. Marshall was able to do well in her courses at Camosun. However, when Ms. Marshall accepted smaller contracts with LandSea to work as a remote-catering chef in 2016, the work significantly aggravated her symptoms, her condition deteriorated and her pain increased. At time, the pain was unbearable. Ms. Marshall was then forced to accept the reality that her career as a remote-catering chef was over. [162] When Ms. Marshall returned to school in the fall of 2016, she continued to be in considerable pain. She was hired to work part-time at ReMax, however, she continued to suffer painful

symptoms, particularly in her back and hips. The income she could earn was also much less than what she would have been able to earn as a remote-catering chef. [163] I find that, although Ms. Marshall's life was now on a different path than what she had envisioned for herself before the first accident, she continued to work hard in her courses at Camosun and at rehabilitation. She also spent some of her time volunteering, which was important to her. Unfortunately, on May 28, 2017, Ms. Marshall was again injured in the third accident. [164] I find that, as a result of injuries Ms. Marshall sustained in the third accident, her pre-existing soft tissue injuries in her cervical, thoracic and lumbar spine were exacerbated and aggravated. She continued to suffer from chronic pain in those areas. I find further that, as a result of the third accident, Ms. Marshall's headache symptoms became much worse. Although Ms. Marshall referred to her headaches as "migraines," in fact they were not migraines, but headaches with migrainous features. I accept the diagnosis of Dr. Sexton, Dr. Giantomaso and Dr. Robinson in that respect. These headaches have been very debilitating for Ms. Marshall. I also accept Dr. Sexton's opinion that the vision symptoms Ms. Marshall described following the third accident were and are related to her migraine-like headaches. Ms. Marshall's headaches and vision

symptoms have made working on a computer on any sustained basis very difficult for Ms. Marshall. However, such work was a prominent feature of Ms. Marshall's job with BC Pensions, and would be a prominent feature of other positions Ms. Marshall would be expected to consider with her degree. [165] I find that Ms. Marshall did not sustain a mild traumatic brain injury in either the first accident or the third accident. I prefer Dr. Robinson's opinion evidence in that respect over the opinion evidence of Dr. Giantomaso and Dr. Spivak. [166] Ms. Marshall's headaches, together with her chronic neck and back pain, significantly affected Ms. Marshall's ability to function at school, at work and in her personal life. Ms. Marshall struggled to accept her new limitations, and worked hard at rehabilitation. However, her struggle, and the effects of her pain symptoms and headaches, eventually took a toll on Ms. Marshall. [167] I find that, by the fall of 2019, Ms. Marshall, as a result of the injuries she sustained in the accident, was having a great deal of difficulty functioning in her day-to-day life. She had lost confidence in her abilities. She was depressed and anxious about her situation. She was no longer able to support herself financially. She was still living with her mother and step-father. For some months, she was frequently absent from work, primarily because of the effects

of her headaches, and no longer a dependable employee. Managing her life now overwhelmed her. A devastating blow to Ms. Marshall was the termination of her placement at BC Pensions at the end of October 2019. I find that, by this time, and in addition to her physical issues, Ms. Marshall had, as a result of the effects of her injuries, developed a psychiatric disorder, specifically, an adjustment disorder with mixed anxiety and depression. I find that, by this time, Ms. Marshall was psychologically plagued by a loss of self and the dreams she had for herself prior to the first accident. [168] I find that, in addition to the physical and psychological effects of her injuries, Ms. Marshall's important relationships have also been affected. Ms. Barnett, Ms. Hilderley and Ms. Gordon all spoke about this. Ms. Marshall herself no longer perceives herself as the good or reliable friend she was able to be in the past. This is a source of sadness for her. She is no longer able to engage in favourite activities such as cooking for friends. However, the biggest loss felt by Ms. Marshall is the loss of her dream career, which, as a result of the injuries she sustained in the accident, she can no longer pursue. I find further that, as a result of the injuries she sustained in the accidents, Ms. Marshall's employment prospects generally, and especially for full-time office work, are

substantially impaired. [169] I find that, as a result of the injuries she sustained in the accidents, Ms. Marshall has been left with chronic pain and debilitating migraine-like headaches, although there is some prospect that, with appropriate treatment, Ms. Marshall's headaches may improve. However, Ms. Marshall will now have a life-time of managing her symptoms, and the trajectory of her life has been permanently changed.

6. Damages (a) Non-pecuniary damages [170] It is well-established that the purpose of non-pecuniary damages is to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The factors to be taken into account include: the plaintiff's age; the nature of the injury; the severity and duration of pain; disability; emotional suffering; impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; loss of lifestyle; and the plaintiff's stoicism (a factor that should not, generally speaking, penalize the plaintiff). See Stapley v. Hejslet, 2006 BCCA 34, at paras. 45-46. An award of non-pecuniary damages must be fair and reasonable to both parties. [171] It is also well established that each case must be decided on its own facts, and prior cases are useful as a guide - but only a guide - in the assessment of non-pecuniary damages. [172] On behalf of Ms. Marshall, Mr. Maragos submits that an award for non-pecuniary damages of $180,000 is reasonable in Ms. Marshall's case. [173] Mr. Maragos argues that before the first accident, Ms. Marshall was an active young woman, who loved dancing, hiking, swimming, travelling and attending music festivals with friends. She had established a career, as a remote chef, that she was passionate about, and that provided her with great personal satisfaction,

independence and financial freedom. Mr. Maragos argues that, while, with time, Ms. Marshall has had improvement in some of her symptoms, others have continued to affect her daily life. She has been unable to continue in her career as a chef, has had difficulty completing her degree, and will be (in his submission) unable to tolerate working full-time. The effects of her injuries have impacted her ability to engage with friends and family. She can no longer engage in physical activities to the same extent. In Mr. Maragos's submission, instead of the sparkle she had before the accidents, Ms. Marshall has lost confidence and her passion for life. She has developed psychological problems, including anxiety and depression as a result of the accidents. [174] In support of an award of $180,000, Mr. Maragos cites: Pearson v. Savage, 2017 BCSC 1435; Watkins v. Dormuth, 2014 BCSC 543; Culver v. Skrypnyk, 2019 BCSC 807; and Raedwulf v. Kelly, 2020 BCSC 915. [175] In Raedwulf, for example, the plaintiff was a young mother just beginning her career as a teacher. She enjoyed bicycling, music, dancing and attending music festivals. As a result of two accidents, she suffered a lower back injury, an inner ear disorder, anxiety, a mild traumatic brain injury and chronic headaches. After the accidents, the plaintiff became withdrawn and avoided crowds and noise. She was no longer able to

participate in physical activities, or go to music festivals, which had been a big part of her life. The court found that, while the plaintiff's injuries might improve somewhat, they were permanent and she would continue to suffer anxiety, chronic pain, fatigue, dizziness and cognitive impairment. The court awarded $175,000 in non-pecuniary damages. [176] On the other hand, Mr. Burns, on behalf of the defendants, submits that a fair and reasonable award for non-pecuniary damages in Ms. Marshall's case would be between $75,000 and $95,000. The defendants do not say that Ms. Marshall's injuries were not serious. However, the defendants do say that the effects of those injuries on Ms. Marshall were moderate. [177] In support of an award of non-pecuniary damages in this range, the defendants cite: Stapleton v. Andrew, 2019 BCSC 678; Lewis v. Rubboli, 2018 BCSC 17; Hu v. Tan, 2016 BCSC 908; Snidal v. Spires, 2015 BCSC 446; Klingler v. Lau, 2019 BCSC 1776; and Drodge v. Kozak, 2011 BCSC 1316. [178] In Hu, for example, the plaintiff was a 38-year-old administrative co-ordinator, who suffered soft tissue injuries to her neck, shoulder, upper back and lower back. She also suffered from ongoing debilitating migraine and tension headaches, and ongoing chronic pain. The court awarded $90,000 in general damages. [179] In my view, the level of award proposed by Mr. Burns is too low, and

fails fully to take into account the extent to which Ms. Marshall's life has been affected as a result of the injuries she sustained in the accidents. Based on my findings above, the effects of those injuries have not been moderate. Rather, they are substantial. On the other hand, I note that plaintiffs in two of the cases cited by Mr. Maragos were being compensated for the lingering effects (including cognitive impairment) of mild traumatic brain injury. [180] In the light of my findings above, and taking into account Ms. Marshall's age, the significant effects the injuries have had on her life - most especially the loss of the career she dreamed of - and will continue to have on her life, the purpose of an award of non-pecuniary damages and the cases cited to me, I conclude that a fair and reasonable award of non-pecuniary damages in Ms. Marshall's case is $140,000. (b) Loss of earning capacity [181] Ms. Marshall says that, as a result of the injuries she sustained in the accidents, she has demonstrated both a loss of earning capacity in the period up to trial (which I will refer to as a "past loss") and a loss of future earning capacity. On behalf of Ms. Marshall, Mr. Maragos argues that the evidence supports the conclusion that, but for the accidents, Ms. Marshall would not have pursued a 4-year college degree, but would have continued in her chosen career as a

remote-catering chef. In Mr. Maragos's submission, not only is Ms. Marshall now no longer able to pursue that career, but, in addition, her past and future career prospects and income-earning capacity have been negatively impacted by the injuries she sustained in the accidents, from which she is unlikely ever to fully recover. Ms. Marshall has, therefore, established an entitlement to compensation. In Mr. Maragos's submission, Ms. Marshall's damages (for her past loss and her loss of future earning capacity) should be assessed on the basis that, in the "without accident" scenario, Ms. Marshall would have pursued a full-time career as a remote-catering chef, earning a substantial income. [182] However, in Mr. Maragos's submission, even if the court concludes that, in the without-accident scenario, Ms. Marshall would have returned to school, she has demonstrated both a past loss and a loss of future earning capacity, as a consequence of the injuries she sustained in the accidents. [183] In Mr. Maragos's submission, Ms. Marshall's net past loss should be assessed at between $125,000 (assuming, in the without-accident scenario, she would have returned to school) and $200,000 (assuming she would have continued to work as a remote-catering chef). With respect to Ms. Marshall's loss of future earning capacity, this should be assessed at between about $960,000 and $1,600,000 (depending

on whether a capital-asset or an earnings-based approach is used), after taking into account Ms. Marshall's residual earning capacity. [184] On the other hand, Mr. Wilson, on behalf of the defendants, argues that the evidence supports the conclusion that, in the without-accident scenario, Ms. Marshall would not have continued to work full-time as a remote-catering chef. Rather, in his submission, in the fall of 2014, she would in any event have enrolled in Camosun College with the aim of completing a 4-year degree. In Mr. Wilson's submission, in that scenario, Ms. Marshall would have earned income working summers as a remote-catering chef, just as she did in the with-accident scenario. However, in Mr. Wilson's submission, her ability to earn income working as a chef in the without-accident scenario would have been limited by her school schedule, especially in the last two years of her program, although she would have earned income through co-op placements. [185] In Mr. Wilson's submission, even though, in the summer of 2019, Ms. Marshall could not sustain the very long hours at Atomique, she was able to do so at least for a short time. In Mr. Wilson's submission, this fact indicates that Ms. Marshall has the capacity to work regular, full-time hours in an office environment with more responsibilities than a receptionist or general office assistant. [186] Further, in Mr.

Wilson's submission, the assumption used by Mr. Benning that Ms. Marshall's daily rate working as a remote chef in the without-accident scenario would have increased to $475 is not justified on the evidence. This was higher than the rate being paid to Mr. Hornquist. Mr. Coyne's evidence was that the range of daily rates for a chef was between $275 to $350 a day. While, according to Mr. Hornquist, the "worst scenario" would be $325 a day, in Mr. Wilson's submission, I should conclude (for purposes of assessment of both Ms. Marshall's past loss and loss of future earning capacity) that the daily rate for an executive or first chef working in a remote location is $325. [187] In Mr. Wilson's submission, Ms. Marshall's net past loss should be assessed at between approximately $54,000 (assuming, after completing a degree, she pursued a career related to that degree) and $74,500 (assuming, after completing a degree, she pursued a career as a chef). [188] With respect to loss of future earning capacity, in Mr. Wilson's submission, and based on Mr. Gosling's report, the present value of Ms. Marshall's residual earning capacity with her degree is significantly more than what she would likely earn working as a chef. In this scenario, and using an earnings approach, Ms. Marshall has no loss, because she would expect to earn more money in a field related to her degree than working as a

remote-catering chef. [189] However, since, in Mr. Wilson's submission, Ms. Marshall has a residual capacity to earn more than she was earning prior to the accidents in Mr. Wilson's submission, using the earnings approach to measure Ms. Marshall's loss would not be appropriate. Rather, the capital asset approach should be used, and Ms. Marshall's loss of future earning capacity be assessed at two years of her pre-accident income of approximately $50,000 per year, for a total award of $100,000. [190] The legal principles that apply are well established. [191] There are two stages in assessing a claim for damages for loss of earning capacity. First, a plaintiff must prove that the injuries suffered in the accident and the resulting symptoms impaired her ability to earn income and that there is a real and substantial possibility that her diminished earning capacity has resulted or will result in a pecuniary loss. If the plaintiff satisfies that burden, and therefore establishes an entitlement to compensation, then the second stage requires an assessment of the loss. A plaintiff may prove the quantification of that loss either on an earnings approach or a capital asset approach. Both are correct. The earnings approach will be more useful when the loss is more easily measurable. The capital asset approach is often more appropriate where the pecuniary loss is not easily measured. A

plaintiff may indeed be able to prove that there is a substantial possibility of a future loss of income despite having returned to his or her usual employment. See generally Perren v. Lalari, 2010 BCCA 140, at para 32. Either way, the court must endeavour to quantify the financial harm accruing to the plaintiff over the course of her working career, taking into account relevant and realistic negative and positive contingencies. [192] A plaintiff's loss is assessed on the basis of the difference between the plaintiff's original position just before occurrence of the negligent act or omission, and the injured position after and as a result of such act or omission: see Athey v. Leonati, [1996] 3 S.C.R. 458, at paras. 34-35. Compensation for past loss of earning capacity is based on what the plaintiff would have - not could have - earned, but for the injuries she sustained: see Rowe v. Bobell Express Ltd., 2005 BCCA 141, at para. 30. [193] The assessment of a plaintiff's loss is an exercise of judgment, not a mathematical calculation. Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Even in circumstances where employment data and calculations appear to show no reduction or even an increase in income following an injury, where a plaintiff continues to suffer to some degree from the effects of an accident which have an impact on the

plaintiff's work, there is an impairment of earning capacity. The proper question under this head of damages is not simply whether a plaintiff will suffer an actual wage loss, but rather whether there has been an impairment of the plaintiff's income-earning capacity. This latter approach treats the ability to earn income as a capital asset, and the issue is whether that asset has in any way been diminished by reason of the defendant's negligence. See Cheung v. MacDonald et al, 2004 BCSC 222, at para.

85. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable. See Jurczak v. Mauro, 2013 BCCA 507, at para. 36. [194] Using the capital asset approach does not mean that the assessment is unstructured or that the assessment is entirely at large without the necessity to explain the factual basis of the award. In every case where the capital asset approach is adopted, the four questions in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), at para. 8, form the basis of the assessment. The questions are whether: (1) The plaintiff has been rendered less capable overall from earning income from all types of employment; (2) The plaintiff is less marketable or attractive as an employee to potential employers; (3) The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her, had she not been injured; and (4) The plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market. [195] I will first address the "without-accident" scenario. [196] I do not accept the basic premise of Mr. Wilson's submissions, namely that, in the without-accident scenario, Ms. Marshall would have enrolled at Camosun College in September 2014 to complete a 4-year degree. This premise relied principally on two pieces of evidence. The first was

that Ms. Marshall took steps in 2013 to obtain her high school diploma. This was something that she did not need to do to continue her career as a remote-catering chef, but was something she needed to pursue post-secondary education. The second was the evidence of both Ms. Marshall and Mr. Coyne to the effect that Mr. Coyne encouraged Ms. Marshall to pursue a degree. [197] However, the proposition that Ms. Marshall's reason for obtaining her high school diploma was to pursue post-secondary education rather than continue her career as a remote-catering chef was never clearly put to her on cross-examination. Nor was it ever clearly put to Ms. Marshall that she intended, before the first accident, to enrol full time in college or university and work as a remote-catering chef only when her school breaks allowed. In my opinion, Ms. Marshall's evidence that, before the first accident, she was living her dream working as a remote-catering chef, directly contradicts the premise that she was in fact intending to abandon her career to return to school. [198] In my opinion, the conclusion that is best supported by the evidence is that, absent the first accident, Ms. Marshall would have continued to work as a remote-catering chef. The injuries she sustained in that accident derailed those plans, and attendance at Camosun College became her new plan. Based on her earlier discussions with

Mr. Coyne, following this route offered some prospect of being able to do work that incorporated at least some of the things she enjoyed about remote catering. Ms. Marshall's experience working at the Hippa Lodge during the summer of 2014 confirmed that the injuries she sustained in the first accident meant continuing to pursue a career as a remote-catering chef was going to be very difficult. The second accident put a permanent end to her dream. [199] Accordingly, I find that Ms. Marshall's loss of earning capacity should be assessed on the basis that, without the accidents, she would have continued working as a remote-catering chef. [200] I will next address Ms. Marshall's claim for compensation for loss of earning capacity up to trial. [201] In my opinion, Ms. Marshall has demonstrated an impairment to her earning capacity as a result of the injuries she sustained in the accidents, and that this has resulted in a pecuniary loss in the period up to trial. Indeed, there was no real dispute on these points. This is sufficient to establish Ms. Marshall's entitlement to compensation. The real dispute concerns how Ms. Marshall's loss should be measured. [202] In his report, Mr. Benning assumed that, in the without-accident scenario, Ms. Marshall would have worked eight months of the year. The defendants accept that this is a reasonable assumption. I agree. Although Mr. Coyne's

evidence (for example) could support a conclusion that full-time work was available 12 months of the year if someone wanted it, before the first accident, Ms. Marshall had never worked full-time for a full year. In 2013, for example, Ms. Marshall collected employment insurance for part of the year, implying that she was available for work but was nevertheless not able to find employment. Ms. Marshall's mentor, Mr. Hornquist, usually works about eight months of the year. [203] Mr. Benning's and Mr. Gosling's opinion evidence, and the differences between them, illustrates that the assessment of both Ms. Marshall's past loss and loss of future earning capacity is not particularly straightforward. In my opinion, Mr. Gosling's basic assumption - that it is appropriate to use the average earnings of a Canadian chef - on which his calculations of Ms. Marshall's estimated income as a chef (both past and future) are based, fails to take into account that Ms. Marshall would not have been working as an "average" chef. Rather, she would have been working as a remote-catering chef, where the potential daily rate and earnings were much higher. In my view, Mr. Gosling's calculations, assuming as a starting point the average earnings of a Canadian female chef, were not supported by the evidence at trial. [204] On the other hand, in my opinion, Mr. Benning's assumption of a daily rate of $475

was also not supported by the evidence, and is too high. [205] In my view, Ms. Marshall's past loss should be assessed on the basis that, in the without-accident scenario: (a) she would have worked 8 months of the year, on either a 14 days on and 7 days off, or 21 days on and 10 days off, schedule for 162 working days; and (b) her daily rate (including any extra compensation from acting as the first-aid attendant on site) would be $400. On this basis, Ms. Marshall's gross annual earnings would have been $64,800. The total gross earnings from the first accident to trial would be $421,200. Income tax at 13.45% (a percentage on which Mr. Benning and Mr. Gosling agree) is $56,651, for a net amount of $364,549. From this, I must deduct what Ms. Marshall in fact earned during that period ($161,859), resulting in a net amount of $202,690. I agree with Mr. Maragos that a further 10% deduction for negative contingencies is appropriate. [206] As a result, I assess Ms. Marshall's net past loss at $180,000. [207] I turn then to loss of future earning capacity. [208] I reject the defence submission that Ms. Marshall has failed to demonstrate any entitlement to compensation. In my opinion, the defendants' submission fails to recognize that, even in circumstances where employment data appear to show no reduction or even an increase in employment income following an injury, where a plaintiff

continues to suffer to some degree from the effects of her injuries and this has an impact on her work, there is an impairment of her income-earning capacity. That, in my opinion, describes Ms. Marshall's circumstances. [209] Ms. Marshall, from the time she was a teenager, has had a very strong connection to the work-force, and has prided herself on being able to support herself financially. Particularly since the third accident, her ability durably to sustain full-time employment has been impaired as a consequence of her injuries. Her challenges at Atomique and, most notably, during her co-op placement at BC Pensions, are, in my view, a reasonable indicator of the limits and barriers Ms. Marshall will face in the future with respect to her income-earning capacity. Ms. Marshall's commitment to work and fulfilling obligations took a serious toll on her, and was unsustainable. [210] Based on Ms. Fischer's functional capacity evaluation, with jobs involving a significant amount of work at the computer (as Ms. Pitre described, for example), Ms. Marshall would be limited to part-time employment (20 to 30 hours per week). In Dr. Sexton's opinion, if Ms. Marshall remains at her current level of function, she is unlikely to be able to work full-time, and will not be able to work full-time in front of a computer screen. Dr. Robinson's view was similar. [211] There is some prospect that,

with treatment, Ms. Marshall's debilitating headache symptoms may be improved, thus improving her future income-earning capacity. However, in my opinion, the evidence shows that, as a result of the injuries she sustained in the accidents, Ms. Marshall's ability to earn income, either as a remote-catering chef (a career now closed to her) or in an office setting, has been impaired and this has resulted in a pecuniary loss. Ms. Marshall has, accordingly, established an entitlement to compensation. [212] At trial, there was substantial disagreement concerning Ms. Marshall's residual earning capacity. Based on Mr. Gosling's assumptions and calculations, Ms. Marshall's residual earning capacity resulted in, at very worst, only a fairly modest pecuniary loss. However, in my view, Mr. Gosling's assumptions concerning Ms. Marshall's residual earning capacity were much more optimistic than was justified by the evidence. On the other hand, some of Mr. Benning's assumptions (especially that Ms. Marshall would not be capable of working more than 20 hours a week) were too pessimistic, in my view. [213] Further, in my opinion, Ms. Marshall's loss of future earning capacity is best assessed using the capital asset approach, rather than the earnings approach. The differences between Mr. Benning and Mr. Gosling illustrate the difficulties in measuring Ms. Marshall's pecuniary loss. Moreover, in

my opinion, it is critical in Ms. Marshall's case to remember that the question is not whether she will suffer an actual wage loss, but whether there has been an impairment in her income-earning capacity. Using the capital asset approach is much better suited to assessing the extent to which Ms. Marshall's future earning capacity - her capital asset - has been diminished by the defendants' negligence. All of the Brown factors apply to Ms. Marshall. [214] Ms. Marshall is in her early 30s and has a long working-life ahead of her. I find that, but for the accidents, there was a real and substantial possibility that Ms. Marshall would have worked into her late 60s before retiring. The evidence supports the conclusion that, as a result of the injuries she sustained in the accidents, there is a real and substantial possibility that Ms. Marshall will be restricted from full-time work, especially work involving a significant amount of time at the computer. [215] I agree with Mr. Maragos's submission that basing the capital asset assessment using two or four years of Ms. Marshall's pre-accident earnings would not be appropriate in this case, and would create a significant risk of undercompensating Ms. Marshall for her loss of earning capacity. [216] In assessing Ms. Marshall's loss, and despite my comments above, I have nevertheless found the calculations of both Mr. Benning and Mr.

Gosling to be of some assistance. In my view (as I noted above), Mr. Benning overestimated (in his Table 3A) Ms. Marshall's without-accident earnings working as a remote-catering chef. Further, in my view, Mr. Gosling's calculations (in Tables 2 and 3 of his report) overestimated Ms. Marshall's residual earning capacity, which, based on the evidence, I consider to be closer to the total in Mr. Benning's Table 4B. [217] The result is that I conclude a fair and reasonable assessment of Ms. Marshall's loss of future earning capacity is $1,000,000. (c) Cost of future care [218] Ms. Marshall seeks an award of $250,000 for cost of future care, based on Ms. Fischer's expert report and the recommendations of the medical experts, and using the present value calculations in Mr. Benning's report. [219] The details are as follows ("annual" means for life, assumed to be over age 100): Item Cost Frequency Present value Amitriptyline $67.00 Annual $2,201.00 Maxalt $253.00 Annual $8,318.00 Injection therapy $5,287.00 Annual $173,664.00 Psychological counselling $2,788.00 First year $2,759.00 Kinesiology $2,352.00 First year $2,328.00 Kinesiology 2nd year and following $882.00 Annual year 2 to age 70 $22,640.00 Gym membership $567.00 Annual to age 70 $15,116.00 Physiotherapy, massage therapy and chiropractic treatment $1,649.00 Annual to age 70 $45,120.00 Occupational therapy - year

1 $4,956.00 first year $4,906.00 Occupational therapy - year 2 $1,815.00 Year 2 $1,760.00 Vocational counselling $827.00 first year $819.00 Computer glasses $842.00 every 3 years $9,499.00 Ergonomic chair $728.00 every 6 years to age 67 $3,232.00 Angled work surface $167.00 every 8.5 years to age 67 $593.00 Obus forme pillow $73.00 every 2 years $1,214.00 Bolster/knee wedge $62.00 every 3 years $695.00 Housecleaning and home support services (per Fischer recommendation) $1,800.00 Annual to age 80 $54,262.00 Total: $349,126.00 [220] At trial, Ms. Marshall testified that she would use all of the items and services recommended for her. [221] In closing argument, Mr. Maragos accepted that some reduction from the cost of future care would be appropriate, given that Ms. Marshall had not yet had a trial of Botox. However, he argues that the medical experts agree that Botox (for example) should be tried to address Ms. Marshall's headache symptoms, and that, if it provides Ms. Marshall with some relief, then it should be continued indefinitely. He argues that, given this uncertainty, a total award of $250,000 would be reasonable and fair for Ms. Marshall's cost of future care. [222] On the other hand, in closing argument, defence counsel submitted that the only amounts that were medically justified and reasonable were as follows: Item Amount Amitriptyline $2,201.00 Maxalt (trial

only) $253.00 Injection therapy (trial only) $2,856.00 Psychological counselling $2,759.00 Kinesiology (first year only) $882.00 Kinesiology 2nd year and following $0.00 Gym membership (first year only) $567.00 Physiotherapy, massage therapy and chiropractic treatment $4,947.00 Occupational therapy $0.00 Vocational counselling $827.00 Computer glasses $842.00 Ergonomic chair $0.00 Angled work surface $0.00 Obus forme pillow $73.00 Bolster/knee wedge $62.00 Housecleaning and home support services $2,000.00 Total: $18,269.00 [223] The principles that apply are well settled. [224] An award for cost of future care is based on what is reasonably necessary, on medical evidence, to promote the mental and physical health of the claimant. The award must (1) have medical justification, and (2) be reasonable. The medical necessity of future care costs may be established by a health care professional other than a physician, such as an occupational therapist, if there is a link between a physician's assessment of pain, disability and recommended treatment, and the health care professional's recommended care item. See Gao v. Dietrich, 2018 BCCA 372, at paras. 69-70. [225] A little common sense should inform claims for cost of future care, however much costs may be recommended by experts in the field: Penner v. Insurance Corporation of British Columbia, 2011 BCCA 135, at para.

13. No award is appropriate for costs that a plaintiff would have incurred in any event: Shapiro v. Dailey, 2012 BCCA 128, at paras. 51-55. Moreover, future care costs must be likely to be incurred by the plaintiff. The onus is on the plaintiff to show that there is a reasonable likelihood that she will use the suggested services: see Lo v. Matsumoto, 2015 BCCA 84, at para. 20. [226] I will address those items where there is disagreement, beginning with medications to treat Ms. Marshall's headaches: Maxalt and the injection therapy. [227] In support of his position that a substantial award for the cost of injection therapy is justified, although Ms. Marshall has never tried such therapy, Mr. Maragos cited Wong v. Campbell, 2020 BCSC 243; and Akhtarkhavari v. Griffith, 2020 BCSC 740. In both cases, significant awards were made for medications that the plaintiff had not yet tried. In other words, the awards went well beyond an amount to fund a brief trial. [228] The defendants say that, based on the expert evidence, no more than the cost of a one-year trial of Maxalt and of the injection therapy has been medically justified or is reasonable. [229] Three experts - Dr. Giantomaso, Dr. Sexton and Dr. Robinson - made recommendations of medications to address Ms. Marshall's headache symptoms. Some of the recommendations overlapped; some did not. For example, only Dr. Giantomaso

specifically recommended Maxalt; neither of the headache specialists (Dr. Sexton and Dr. Robinson) did so. More significantly, virtually all of the recommendations (including respecting Maxalt and injection therapy) were for medication trials, to see whether and to what extent a medication was effective for Ms. Marshall. As Dr. Robinson noted, if Ms. Marshall is responsive to Botox, then she may require such treatment "indefinitely." Given the evidence of the headache specialists, I am not prepared to conclude that if Ms. Marshall is responsive to Botox, she will also require Maxalt, for example, annually, for life. [230] As of the trial, the only medication Ms. Marshall had been prescribed and was taking specifically to address her headache symptoms was amitriptyline, one in a family of medications recommended by both Dr. Giantomaso and Dr. Robinson. It was providing her with reasonable relief, although the medication was not without side-effects. [231] In my opinion, the defendants' approach is too restrictive, and places too much of the risk of a successful outcome of a trial of Botox on Ms. Marshall. On the other hand, given the uncertainties surrounding the outcome of a trial of medication (whether Maxalt, Botox, Aimovig or other medications the experts recommend Ms. Marshall try), and the absence of evidence that, if something is successful, there is a real and

substantial possibility that Ms. Marshall will be on that medication for the rest of her life, Ms. Marshall's claim must be significantly discounted, in my view. [232] Accordingly, I award a total of $58,500 for both Maxalt and injection therapy. This approximates the present value of a one-year trial of Maxalt and a two-thirds discount of the present value of annual injection therapy. [233] I turn next to kinesiology. [234] Ms. Fischer recommended that Ms. Marshall receive kinesiology services twice per year (six sessions total) to "review and revamp" her exercise program. In Ms. Fischer's opinion, this regime would encourage Ms. Marshall's ongoing involvement and emphasize the importance of kinesiology as an active method of symptom management. Ms. Marshall has engaged in kinesiology and active rehabilitation, and has benefitted from it. However, in my view, she has not shown that the kinesiology services described by Ms. Fischer, to age 70, are medically justified or reasonable. On the other hand, some reasonable support for Ms. Marshall through the availability of kinesiology services has been justified and is reasonable. I award a total of $5,000. [235] In my opinion, the same applies with respect to the cost of a gym membership. I award $3,000 for this item. [236] I turn next to physiotherapy, massage therapy and chiropractic treatment. [237] Ms. Fischer's recommendation

that Ms. Marshall receive long-term funding for these treatments is stated to be based on Dr. Giantomaso's opinion that Ms. Marshall is likely to continue experiencing chronic pain on a long-term basis, and on Ms. Marshall's reports that she has found these treatments helpful. In Ms. Fischer's opinion, physiotherapy, chiropractic and massage therapy are all appropriate treatment to address symptom flare-ups. [238] On the other hand, the defendants say that the large award Ms. Marshall proposes for such therapies is neither justified nor reasonable, although they accept that some award should be made. [239] Dr. Giantomaso recommended that Ms. Marshall consider ongoing active rehabilitation. However, despite his opinion that Ms. Marshall will likely continue to experience chronic pain to some degree long-term, he made no recommendations concerning ongoing physiotherapy, massage therapy or chiropractic treatment, and certainly not on any long-term basis. [240] In my opinion, Ms. Marshall has shown that some allowance is medically justified and reasonable, so that she can access treatment (whether physiotherapy, massage therapy or chiropractic treatment) to address and manage occasional flare-ups. I award $15,000. [241] I turn next to occupational therapy. [242] When Ms. Fischer assessed Ms. Marshall, Ms. Marshall was continuing to receive occupational therapy services from Ms.

Braunizer. However, that relationship was terminated shortly thereafter, on Ms. Braunizer's recommendation. In my opinion, Ms. Marshall had benefitted from occupational therapy services in the past. However, she and Ms. Braunizer did not appear to me to be a good fit in terms of therapist and patient. [243] In Ms. Fischer's opinion, goal setting and monitoring by an occupational therapist of Ms. Marshall's overall progress "will remain essential in order to make any necessary adjustments to her rehabilitation plan." Ms. Fischer recommended that Ms. Marshall have "continued occupational therapy involvement" for the next 18 months, "in order to provide her with the support she requires to maximize her success with improving her symptoms and entering the workforce." Ms. Fischer saw the need for 3-4 hours of occupational therapy over the next 12 months as arising out of (among other things) Ms. Marshall starting new therapies such as counselling, a trial of new medications to address her headaches, working toward completion of her degree, and finding work. [244] The defendants say, based on Ms. Marshall's most recent experience with occupational therapy, an award for such therapy in the future is neither reasonable nor medically justified. [245] In my view, in the year prior to the trial, occupational therapy was a burden, rather than a benefit, for Ms. Marshall. It was an extra

obligation that was contributing to her feeling depressed and overwhelmed. When she missed appointments, she felt guilty and it contributed to her worsening mental health. Ms. Marshall has now had a period where she is managing her own life and time. On the other hand, Ms. Marshall has clearly benefitted from having occupational therapy services available to her. Occupational therapy services could assist her in setting up an ergonomically appropriate work-station when she begins work. I have concluded that some allowance for Ms. Marshall to access those services in the next two years is medically justified (based on Ms. Fischer's opinion evidence) and reasonable. Accordingly, I award $2,000 for occupational therapy. [246] I turn next to "computer glasses." [247] Ms. Marshall is wearing glasses when working on the computer. The glasses were prescribed for her by Dr. McCrodan. Based on Ms. Marshall's evidence at trial, wearing these glasses have helped reduce her headache symptoms to some degree. In her report, Ms. Fischer noted that, determining whether long-term funding for these glasses was warranted would depend on Ms. Marshall's response to other forms of headache treatment. I note that Dr. Sexton made no recommendation for long-term use of eyewear to address Ms. Marshall's headaches. [248] In my opinion, Ms. Marshall has not shown that this cost is medically justified or

reasonable on a long-term basis. However, the defendants accept that $842 is an appropriate allowance, and I award that amount. [249] With respect to the amounts claimed for an ergonomic chair and angled work surface, I have not been persuaded that these are justified or reasonable. As of trial, Ms. Marshall was using an ergonomic chair and a sit-stand desk. However, she is about to complete her degree. Whether she will need to provide herself with such equipment on a long-term basis, when she becomes employed, is, in my view, entirely speculative. In the event that Ms. Marshall decides to set up a home office, and wishes to have some ergonomic items to make herself more comfortable, they should be financed out of her non-pecuniary damages. I award nothing for these items. [250] I turn finally to housecleaning and home support services. [251] Based on Ms. Fischer's functional assessment, Ms. Marshall has functional limitations for prolonged looking down, reaching, bending, crouching and kneeling, all of which affect her ability to manage heavier housecleaning. Ms. Fischer's findings are consistent with the evidence from Ms. Marshall and Ms. Barnett concerning Ms. Marshall's difficulties managing household chores. [252] However, as Ms. Fischer observed in her report, there are many unknowns about Ms. Marshall's living situation in the future: will she live in a house and be

responsible for maintenance as a homeowner? will she be living with a partner? will she have children? As of trial, Ms. Marshall was living in rented accommodation with a partner, a fairly recent development. They were sharing household chores (although not necessarily equally). It was unclear whether (as tenants) and to what extent they were expected to carry out maintenance on their accommodations, or whether that is their landlord's responsibility. [253] The defendants say that, given the uncertainties in Ms. Marshall's future living situation, a reasonable award for home support services is $2,000. I do not agree. In my view, this applies far too great a discount to the uncertainties, and ignores the evidence concerning Ms. Marshall's physical limitations in performing routine household chores. On the other hand, some contingency discount is appropriate in my view. I consider that an award of $25,000 is reasonable and fair to both Ms. Marshall and the defendants. [254] Accordingly, I award cost of future care as follows: Item Amount Amitriptyline $2,201.00 Maxalt and injection therapy $58,500.00 Psychological counselling $2,759.00 Kinesiology $5,000.00 Gym membership $3,000.00 Physiotherapy, massage therapy and chiropractic treatment $15,000.00 Occupational therapy $2,000.00 Vocational counselling $819.00 Computer glasses $842.00 Ergonomic chair $0.00 Angled work surface $0.00 Obus forme pillow $73.00 Bolster/knee wedge $62.00 Housecleaning and home support services $25,000.00 Total $115,256.00 (d) Special damages [255] The parties have agreed that Ms. Marshall should be awarded special damages in the sum of $15,639.56.

7. Summary and disposition [256] In summary, I award damages to Ms. Marshall as follows: (a) non-pecuniary damages in the sum of $140,000; (b) loss of earning capacity to trial $180,000 (net); (c) loss of future earning capacity $1,000,000; (d) cost of future care $115,256; and (e) special damages in the sum of $15,639.56. [257] There will be pre-judgment interest in accordance with the Court Order Interest Act, R.S.B.C. 1996, c. 79. [258] Subject to any submissions the parties may wish to make concerning costs, Ms. Marshall is entitled to her costs on Scale B. If the parties wish to make further submissions concerning costs, I direct that appropriate steps be taken within 45 days of the date of these Reasons to obtain a convenient hearing date from Scheduling. "Adair J."