Nadeau v. Toulmin

2020 BCSC 866 Nadeau v. Toulmin

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Nadeau v. Toulmin, 2020 BCSC 866 Date: 20200610 Docket: M172854 Registry: Victoria Between: Brenda Lee Nadeau Plaintiff And Michael Anthony Toulmin Defendant Before: The Honourable Mr. Justice Walker Reasons for Judgment Counsel for the Plaintiff: J.S. Godfrey Counsel for the Defendant: P.B. Dreyer D.B. Boan Place and Dates of Trial: Courtenay, B.C. January 27-31, 2020 Place and Dates of Trial: Nanaimo, B.C. April 20 & 30, 2020 May 1 & 6, 2020 Place and Date of Judgment: Victoria, B.C. June 10, 2020 Table of Contents Introduction.. 3 Positions of the Parties.. 4 Life Pre-Accident.. 5 Symptoms and Loss of Function Following the Accident.. 10 Expert Evidence.. 15 Physiatrists. 15 Dr. Grabowski 16 Dr. Paramonoff 24 Conclusion. 35 Psychiatrists. 36 Dr. O'Breasail 36 Dr. Solomons. 43 Conclusion. 49 Vocational Consultant 50 Non-Pecuniary Damages.. 53 Special Damages.. 58 Wage Loss.. 59 Introduction.. 59 Past Wage Loss. 61 Future Wage Loss Claim.. 63 Cost of Future Care.. 72 Summary.. 74 Introduction [1] The plaintiff, Brenda Nadeau, seeks damages from the defendant, Michael Toulmin, for injuries suffered from a motor vehicle accident that occurred on January 5, 2016 ("Accident"). [2] The Accident occurred shortly after 5:00 p.m. when Ms. Nadeau was driving a school bus heading southbound on Highway 19A, near the intersection of Hardy

Road, approximately two kilometres north of downtown Courtenay, B.C. She had just dropped off the last of the school children. She was driving her empty 72-seat school bus to her employer's depot located near the city centre. Her employer, First Student Inc. ("First Student"), operates a bus company with an office in Courtenay. [3] Highway 19A consists of two lanes of travel, one in each direction. Ms. Nadeau was travelling between 60 and 65 km/h (under the posted speed limit of 80 km/h) due to poor road and weather conditions, and was approaching the Hardy Road intersection when Mr. Toulmin suddenly emerged from the east on Hardy Road and crossed into Ms. Nadeau's lane of travel in front of her school bus. She had only moments to avoid a collision. Although she activated the brakes as soon as she saw Mr. Toulmin's vehicle, the school bus collided with the passenger side of Mr. Toulmin's pickup truck. The force of impact pushed his pickup truck some distance along the highway into the oncoming lane of traffic. In the process, his vehicle spun around and hit the school bus again, with the passenger side of the pickup truck striking the driver's side of the school bus. Both vehicles were damaged. Most of the damage to the school bus occurred to its front left side closest to Ms. Nadeau. [4] Liability is admitted on behalf of Mr. Toulmin. His pleaded allegation of contributory

negligence against Ms. Nadeau is abandoned. As well, in closing oral argument, Mr. Toulmin advised that he does not advance failure to mitigate as a defence. [5] Ms. Nadeau elected to pursue a tort claim against Mr. Toulmin instead of pursuing compensation through WorkSafeBC. As a result, she is precluded by statute from claiming Part 7 benefits. She has paid for as many out of pocket expenses as her finances allowed. Mr. Toulmin has agreed to pay $6,732.18 of the claim advanced for special damages. All other heads of damages claimed by Ms. Nadeau are in issue. [6] All facts set out in these reasons are my findings of fact, except where described as facts asserted by either party or their witnesses (and where I do, I specifically state which of those facts I accept and find). [7] Some parts of Mr. Toulmin's written closing submissions appear to suggest that Ms. Nadeau intentionally gave misleading evidence to gain advantage in her case. In closing oral argument, Mr. Toulmin's counsel clarified that Mr. Toulmin does not advance any such allegation nor does he say that Ms. Nadeau intentionally provided inaccurate, misleading, or false evidence. Mr. Toulmin's concern is with the reliability of Ms. Nadeau's evidence in certain respects. [8] With that in mind, and before turning to my findings, I will comment on my assessment of the credibility and reliability of the evidence of Ms.

Nadeau and the other lay witnesses who testified in her case. I found their testimony to be frank and candid, without any hint of bias, exaggeration, or embellishment, and consistent with probabilities affecting the case, both as a whole and in existence at the time, satisfying the factors discussed in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296 and Karim v. Li, 2015 BCSC 498 at paras. 88-90, 102-105. The other lay witnesses' evidence provided trustworthy, compelling corroborative and contextual support for Ms. Nadeau's evidence of the adverse effects of the injuries she suffered in the Accident. I have no hesitation in accepting the evidence of Ms. Nadeau and the other lay witnesses as credible and reliable. Positions of the Parties [9] Ms. Nadeau claims she suffered a range of soft tissue injuries from the Accident, extending from her low to upper back and neck and shoulder areas. She says that while some of her injuries have improved, she remains symptomatic to the point that she suffers from chronic pain. According to Ms. Nadeau, she continues to suffer from pain and restriction in function in her neck, left shoulder area, and low back, as well as intermittent groin pain. Ms. Nadeau also says she suffers from an independent psychological injury caused by the Accident, such as an Adjustment Disorder, features of post-traumatic stress disorder,

depression, significant driving anxiety, and impaired sleep. She claims that her quality of life has been significantly impacted in all respects, including many outdoor activities she enjoyed with her husband, and has been given a poor prognosis for notable improvement or resolution. [10] Ms. Nadeau advances claims for non-pecuniary damages, special damages, past and future income loss, and costs related to future care. Ms. Nadeau's claim for future income loss is based on the earnings approach and not as a loss of a capital asset. [11] Mr. Toulmin accepts that Ms. Nadeau experienced neck and shoulder pain and headaches following the Accident that improved to a "low grade" within six months. He also accepts that Ms. Nadeau experienced some flashbacks and anxiety after the Accident but says they resolved a short time later. He denies that the Accident caused Ms. Nadeau to suffer any disability beyond six months. He also denies the Accident caused her to suffer any psychological injuries. His position is that any vehicular-related anxiety she may currently suffer from is non-pathological and not disabling. He also denies that Ms. Nadeau suffered a loss of earning capacity from the Accident and says that her work capacity is limited by her family responsibilities, in particular, raising her granddaughter. Although failure to mitigate is not alleged, Mr. Toulmin maintains that Ms.

Nadeau can do more to ameliorate her injuries and symptoms. Life Pre-Accident [12] Ms. Nadeau is 49 years old (born June 5, 1971). She lives in Courtenay with her husband of approximately 30 years, Joseph Nadeau (he is referred to by his middle name, "Mark"), and their granddaughter, S.N., age three, whom they obtained legal custody of in the fall of 2017. The Nadeaus have two adult sons. The eldest, who is 30 years old and the father of their granddaughter. He is a recovering drug addict and currently lives with his parents. The Nadeaus' other son lives in Alberta with his wife and children. He is estranged from his family due to his brother's addiction issues. [13] Ms. Nadeau was born and raised in Mackenzie, B.C. Her marks in high school were average. She left high school before completing grade 12 to pursue a brief relationship with an individual whom she married and who turned out to be physically abusive. Fortunately, she extricated herself from that relationship. Years later, in 2011, Ms. Nadeau successfully completed her course work and obtained her grade 12 equivalency. Until recently, she held a class 2 driver's license which allowed her to drive school buses. She is also certified in the use of vehicular air brakes and in first aid. She has no other educational or vocational training, other than what she has learned during the course of her various jobs. [14] Ms.

Nadeau married Mark Nadeau in 1990. They continue to enjoy a successful marriage despite difficulties with their older son's addiction issues with heroin and cocaine. Once married, the Nadeaus lived in Cowichan Valley for approximately ten years, to be close to her parents, before moving to Fort McMurray for Mr. Nadeau's work (in the tire industry supplying off-road logging trucks), where they lived for approximately seven years. [15] Ms. Nadeau worked at various entry level positions in this province and Fort McMurray, including at her parents' fish and chips shop in the Cowichan Valley, as a care giver to a ventilated quadriplegic, and full time as a clerk at a convenience store (where her duties included cashier, stocking shelves, and cleaning) working long shifts of up to ten hours. [16] The Nadeaus moved to the Comox Valley twice. The first time was in 2008 to remove their older son from the drug scene in Fort McMurray. Ms. Nadeau obtained her class 2 license to drive school buses and worked as a spare driving school buses from time to time for First Student. They returned to Fort McMurray a short time later for Mr. Nadeau's work, and Ms. Nadeau worked as a school bus driver there as well. Mr. and Mrs. Nadeau lived in Fort McMurray for approximately one and one-half years before moving to Courtenay in 2010, where they have since remained. Mr. Nadeau is currently employed

as a commercial driver. [17] Ms. Nadeau was hired by First Student on a permanent part-time basis in September 2010. She was assigned her own driving routes. From then until the collision, she drove a school bus on school days five days per week, involving two split-shifts of driving, from 7:00 to 9:00 a.m. and 2:00 to 5:00 p.m. There are no breaks during the morning shift but occasionally, Ms. Nadeau would get one five-minute break during an afternoon shift. First Student's depot is approximately 500 metres from the Nadeaus' home. She was paid for 5.25 hours per day. [18] Typically, the school buses driven by Ms. Nadeau accommodate 46 children in grades 4 and higher (two students per bench seat) or up to 72 students attending kindergarten to grade 3 (three per seat). It is an understatement to say that a school bus driver must be vigilant to keep order on the bus. The noise level is high and the driver must continually be highly attuned to traffic, pedestrians, road conditions, and students entering and exiting the bus. [19] Driving a school bus is different than a car. It is a much bigger vehicle. The driver must continuously rock back and forth in his or her seat to look around the various blind spots not readily accessible by the multiple interior and exterior mirrors. [20] Ms. Nadeau was extremely confident in her abilities as a bus driver prior to the Accident. She

handled all aspects of driving school buses well. She was a careful and cautious driver and highly regarded by her employer for her skills. She enjoyed driving school buses very much and was also well-liked by students and their parents. Ms. Nadeau's supervisor and co-worker confirmed she was an excellent and happy employee with a strong work ethic and a pleasure to work with. [21] Ms. Nadeau enjoyed her work so much her plan was to work as a school bus driver until retirement, which she thought would be at some point in her late 60s at the earliest or if she was able to perform her job duties, in her 70s, which was certainly open to her at First Student (at least one of its bus drivers is in his early 70s). Mr. and Mrs. Nadeau have little to no savings and live paycheque to paycheque. [22] Ms. Nadeau did not drive school buses on weekends, statutory holidays, school holidays, and Spring Break or during the summer months. She did not seek out other employment because she was very happy working for First Student. She collected unemployment insurance for the summer months between 2010 and 2014. [23] Her decision to remain with First Student was to her advantage. In spring 2015, First Student offered Ms. Nadeau permanent part-time work cleaning the interior of its buses in addition to her job as a school bus driver. This work was not subject to school holidays. During the school

year, Ms. Nadeau cleaned buses between her daily bus driving shifts. She often had up to five hours of bus cleaning work available to her per day, although she generally worked roughly three hours per day, five days per week during the school year. Working more hours while also driving school buses meant she would earn overtime pay, which in turn would strain First Student's budget. In the summer months, however, Ms. Nadeau could and did generally work 5 hours per day cleaning buses since it would not involve overtime pay. The work in summer months involved more thorough cleaning of buses while they were not in service. [24] Bus cleaning is physically demanding and involves more than vacuuming and wiping down bus interiors. Seats must be raised forward row by row to allow for thorough cleaning and Ms. Nadeau has to bend over for close to 2.5 hours while cleaning under and around the seats. [25] Ms. Nadeau's intention was to carry on with bus cleaning until retirement as well. [26] In June 2015, Ms. Nadeau decided to stop cleaning buses after being told that First Student lacked the means to increase her pay. Her supervisor, who is in charge of First Student's depot in Courtenay, thought so highly of Ms. Nadeau and the quality and value of her work that by late fall, she found a way within her budget to pay her an increased amount. Ms. Nadeau returned to cleaning buses in

November 2015. [27] Ms. Nadeau and her husband enjoyed spending time in the outdoors, including hiking, hunting, camping year-round (two to three times per month on average, in rural areas, in their 18-foot mobile trailer home), fishing on their small aluminum boat, and riding on their quad vehicles. [28] Ms. Nadeau also enjoyed mostly good health prior to the Accident. She acknowledged that her older son's drug addiction issues caused a lot of stress and anxiety in her home. At one point she was diagnosed with acute depression and anxiety. Fortunately, she received help from her doctor and a counsellor before moving back to Fort McMurray for the second time. She was prescribed a short-term medication regime and stayed on it for several months, with positive results. [29] The Nadeaus' younger son, who lives in Alberta, does not associate with his family as a result of his older brother's addiction issues. As a consequence, Mr. and Mrs. Nadeau have not met his young children. Although she and her husband have come to terms with it, it is nonetheless a source of ongoing stress for them. [30] In his defence, Mr. Toulmin argues Ms. Nadeau's issues with her sons are the source of her ongoing anxiety and not the Accident. However, I am satisfied and find that as a result of the coping skills Ms. Nadeau learned from pre-Accident counselling, together with her short course of

medication and her ongoing participation in an online support group of mothers of addicted children, she overcame her pre-Accident mental health issues. She had no difficulty working for First Student after moving to Courtenay in 2010 and never missed any time from work due to issues with her sons prior to the Accident. [31] There are three other pre-Accident health issues to mention. [32] The first concerns a motor vehicle accident that occurred in Fort McMurray in 2009. Ms. Nadeau was rear-ended while driving her car and suffered short-term upper back and neck whiplash-type injuries. She received medical treatment, including physiotherapy, and took muscle relaxants for several months. She remained off work for two weeks. Ms. Nadeau's unchallenged evidence is that her symptoms were essentially resolved well prior to the Accident. She was candid in stating that she continues to suffer from the occasional flares of pain in her upper back and neck which are not disabling and did not cause her to miss work. [33] The second occurred in 2013. Ms. Nadeau suffered from dizziness and pain in her chest, a racing heart, sweating, and fatigue. She was assessed by two medical specialists. Her heart was functioning well and the cause was not determined. She was prescribed a beta blocker and medication to help with her elevated cholesterol (which she no longer takes). Ms. Nadeau did not miss

any time from work. [34] The third occurred in 2015, after Ms. Nadeau began cleaning buses. She saw her doctor because she was suffering from pain in her hands. X-rays were taken with negative results. The pain resolved within a few weeks although she is left with some residual intermittent achiness. [35] None of these health issues impacted Ms. Nadeau's ability to work. Symptoms and Loss of Function Following the Accident [36] Immediately following the Accident, Ms. Nadeau was very shaky as she experienced the onset of shock and disbelief at what occurred. A co-worker who arrived on the scene shortly after the Accident confirmed she appeared pale, shaken, and in shock, and complained of back pain. She did not strike her head or suffer a loss of consciousness. Within minutes she felt her first physical symptoms - burning pain in her lower back that radiated up her side. After an initial assessment by paramedics, she was taken to the hospital by ambulance, where she was seen in Emergency. By then, she was also experiencing pain on the left side of her neck and shoulder area. She was given painkillers at the hospital and eventually released to go home. Ms. Nadeau saw her family doctor, who prescribed anti-inflammatory medication and later, an anti-depressant to help with her anxiety. [37] Ms. Nadeau remained off work due to pain and ongoing anxiety until February 1, 2016. She

found herself crying all the time and could not stop shaking as she suffered flashbacks. When she could sleep, she suffered repetitive dreams of the Accident. Her flashbacks resolved in approximately a month and a half following the Accident. Her anxiety remains unresolved. [38] Ms. Nadeau's return to work did not go well. She tried to go back to driving a school bus. She could not tolerate any cleaning duties due to her symptoms. She drove one shift on her first day, two on her second, and was only able to drive one shift on her third day before her back and neck pain and her anxiety spiked to uncontrollable levels. At times, she found herself so anxious driving that she would brake suddenly and inappropriately any time she saw a potential obstacle, such as a pedestrian. She could see through her rear view mirrors that her driving upset her students. After talking it over with her supervisor, they agreed that she was not ready to go back to driving a school bus, and she went home. [39] Ms. Nadeau has tried various forms of passive therapy treatments such as physiotherapy, acupuncture, and massage therapy, all of which provided short-term relief. On March 28, 2016, after Ms. Nadeau said her pain symptoms "went down a bit", she returned to work cleaning school buses. [40] Ms. Nadeau's family doctor referred her to counselling because she could not stop crying. She found her

eight counselling sessions and medication for anxiety and depression to be helpful. She attempted to return to work driving a school bus when schools reopened on April 20 following Spring Break, after she received permission from her family doctor to return to work on a graduated basis. [41] Her increasing pain and anxiety caused her to stop driving school buses again within two months. With the concurrence of her employer, she stopped driving school buses altogether after June 16, 2016 due to mutual concerns for the safety of her passengers and others using the roadways. She continued to clean school buses, albeit at reduced hours due to her pain and restricted function. [42] In 2017, acting on medical advice, she attended the Nanaimo Pain Clinic four times and underwent nerve ablation treatments, which involved "burning" nerves on the right side of her lower back to block pain. The procedure was extremely painful and provided only temporary relief. Ms. Nadeau also saw a kinesiologist at the Canadian Back Institute for eight treatments and was given a stretching and exercise program to carry out at home and at a local gym. She currently attends a gym three times a week and exercises at home almost every day, which gives her some, albeit brief, relief. She also finds exercising in a pool to be helpful. [43] The Nadeaus' granddaughter, currently age 3, moved in with them in

April 2017 because their older son and his partner were not able to care for her. With help of the Ministry of Children and Family Development, the Nadeaus obtained a court order granting them full-time permanent custody of their granddaughter on September 21, 2017. They receive a financial contribution from the Ministry to assist with their granddaughter's needs. [44] Ms. Nadeau took approximately one month off work to settle in her granddaughter, who by all accounts has settled into her new home well and has a close relationship with her grandparents. Her granddaughter attends a daycare facility five days per week that is within a short walking distance of the Nadeaus' home. The facility is able to accommodate Ms. Nadeau's driving shifts. Based on the unchallenged evidence from its owner, the daycare was and remains easily capable of accommodating Ms. Nadeau's early morning start times if she was able to return to work driving school buses. [45] As mentioned, Ms. Nadeau thoroughly enjoyed driving prior to the Accident. The evidence is clear that Ms. Nadeau continues to suffer significant anxiety when she drives a vehicle. She continues to suffer from unpredictable and intermittent panic attacks when driving. When she does, she suffers symptoms such as nausea, feeling "super hot" and as if she cannot breathe, hyper-anxiety, and the shakes. Her last panic attack was in December

2019 while she was driving to the gym. [46] Since the Accident, Ms. Nadeau rarely drives due to anxiety, at most one to two days per week. She is a highly nervous driver who still brakes inappropriately, grips the steering wheel for no reason, and drives through yellow lights to avoid what she perceives will be imminent collisions. She is also a highly nervous passenger. If she perceives another vehicle is getting too close to hers, she pushes her foot forward as if to brake and yells, "Watch out". [47] She no longer has her class 2 driver's license and is not licensed to drive school buses. [48] Ms. Nadeau usually either walks or rides an electric bike she purchased in spring 2019 to get to work. She also uses her bike to get around town. She is occasionally driven to work by her husband. Ms. Nadeau is much more comfortable riding her electric bike than driving a vehicle. Mr. Nadeau fitted a child seat on the rear of the bike so that her granddaughter can accompany her (usually to and from her daycare facility). Ms. Nadeau also enjoys cycling for exercise and has ridden as far as Comox, which is approximately 12 km away, or 24 km round trip, from her home. [49] Unfortunately, Ms. Nadeau was nearly in another collision with Mr. Toulmin, which did not help her anxiety. To her further dismay, Ms. Nadeau was at fault in another motor vehicle accident in late October 2018. She

failed to see another vehicle before proceeding through an intersection controlled by a stop sign and hit it. She did not suffer from any physical injuries, but quit driving altogether for nearly a month afterwards due to increased anxiety. [50] Her current symptoms are persistent; she has constant low back pain, as well as what she described as "low grade" neck, shoulder, and upper back pain, anxiety and impaired mood. She moves slowly and tentatively. Ms. Nadeau's pain and anxiety adversely affect her mood, outlook, and presentation. Her low back pain worsened during the summer of 2019, and she was prescribed a course of an opioid medication - Tramadol - to manage her pain symptoms. She continues to take it based on medical advice. [51] Ms. Nadeau no longer enjoys outdoor activities due to pain, and even finds it painful to sit in her lawn chair for any length of time. In 2019, she went camping with her husband and granddaughter only twice. She can no longer drive their quad vehicles beyond 15 to 20 minutes before the pain becomes too great to carry on. She finds riding in their mobile trailer on gravel roads difficult, and does not fish because she cannot tolerate physical movements associated with boating. Ms. Nadeau finds hiking difficult and is no longer able to enjoy outdoor wilderness photography with the professional camera and two lenses she bought before the

Accident. She no longer helps her husband with chopping wood for the fireplace that heats their home (they do not use electricity to heat their home because they are concerned that the antiquated wiring in their old rental home will cause a fire). [52] The physical aspects of cleaning school buses increases her pain. With the agreement of her employer, who continues to value Ms. Nadeau as an employee, she reduced her work hours over time. Since summer 2018, Ms. Nadeau works part-time cleaning buses, up to five hours each day from Monday to Wednesday. On some days Ms. Nadeau's pain prevents her from working at all, and on others, her symptoms force her to leave work early. [53] First Student relies on other part-time employees to clean school buses that Ms. Nadeau is not able to attend to on Thursdays and Fridays and when she misses work due to pain. [54] Ms. Nadeau takes Tramadol after she comes home from work. She suffers side effects from the medication, such as severe dry mouth, impaired concentration, and short-term memory loss. Based on medical advice, she also uses cannabis oil for pain. Both of these treatments help her pain and impaired sleep somewhat. She also takes Aventyl and Citalopram for anxiety, depression, and pain. [55] Since the Accident, Ms. Nadeau suffers from headaches on the left side of her head and sporadic intense pain in her groin area (triggered when

her low back pain is intolerable). When her groin pain is triggered, it occurs several times a day for days or weeks on end. [56] While testifying, Ms. Nadeau described suffering from burning pain in her low back and a low-grade ache in her neck and shoulders, which she said is aggravated by sitting too long. [57] She cannot afford to pay for ongoing counselling and has had to pay for all medication and medical bills herself. She was surprised at a proposition put to her in cross-examination that she could claim those expenses as Part 7 benefits given her involvement in the subsequent at-fault motor vehicle accident. Ms. Nadeau said she was never told she could do so. Regardless, her entitlement to those benefits is unclear since she was not injured in the at-fault accident. [58] Despite Ms. Nadeau's efforts to follow an active rehabilitation program (e.g., working out at a gym and pool exercises), Ms. Nadeau gained 35 pounds since the Accident. Her current weight, which she was forthright in acknowledging is a problem for her height of 5 feet 2 inches, is 190 pounds, down 5 pounds from a post-Accident high of 195 pounds. [59] Mr. Nadeau continues to be highly supportive of his wife in all respects. Expert Evidence [60] Each party tendered expert opinion evidence from physiatrists and psychiatrists. Ms. Nadeau also tendered an expert report from an economist (who was not

required for cross-examination). Mr. Toulmin tendered an expert opinion from a vocational consultant, who was called. Physiatrists [61] Dr. Corrie Grabowski authored two independent medical-legal reports for Ms. Nadeau. Dr. Catherine Paramonoff prepared one for Mr. Toulmin. Both are highly qualified in their field of expertise - physical medicine and rehabilitation. Their areas of practice include assessing and providing treatment recommendations for patients suffering from pain, including chronic and myofascial pain and headaches, and impairment to physical function. Their opinions were similar in many respects. Dr. Grabowski [62] Dr. Grabowski examined Ms. Nadeau twice, on February 14, 2017 and October 12, 2018. She prepared medical-legal reports following each comprehensive assessment, February 17, 2017 ("February 17 Report") and October 12, 2018 ("October 12 Report"). During both assessments, Dr. Grabowski specifically tested Ms. Nadeau for exaggerated pain responses and pain modification behaviours. The results were negative. [63] In her February 17 Report, Dr. Grabowski set out her diagnosis of the injuries Ms. Nadeau suffered as a result of the Accident: 1. Musculogligamentous strain of the lumbar spine.

2. Musculogligamentous strain of the cervical spine with bilateral myofascial pain of the shoulder girdle.

3. Cervicogenic headache with possible involvement of greater occipital neuralgia.

4. Bruise on right foot; resolved.

5. Development of anxiety and mood disorder and difficulty driving; defer to psychologist.

6. Sleep dysfunction due to pain and anxiety. In terms of post-accident factors, I do feel there is a correlation between her pain and anxiety. The two factors certainly play a part exacerbating each other. [Bold in original] [64] Dr. Grabowski's opinion concerning Ms. Nadeau's loss of function and its negative impact on her ability to return to driving a school bus, is excerpted below: In terms of her function, her recreation has been impacted. She is unable to help out with camping, with the packing, unpacking or set-up. Her work has been impacted. She tried to return to driving but found the air-seat jostled her low back too much and she was having a lot of pain. As well, when she was driving her anxiety started to get the best of her and she was having a hard time coping. She is now able to clean the buses on a part-time basis, but has been unable to successfully return to driving. I do not feel at this point in time she is able to have a successful return to work including driving. As she recovers I would recommend an assessment by an occupational therapist to see if there were some modifications to help her clean the bus more easily. I am not sure if there would be ergonomic adjustments that could help her with driving. A function capacity evaluation could help delineate her limitations. Right now I feel her anxiety is limiting her as much as her physical complaints and

both need to be further addressed. She is able to do her household chores but has to break them up. She has been unable to do any of the yard work and now relies on her husband extensively for chopping the wood (as their home is fully heated by a woodfire stove), moving the lawn and other yard work. [Emphasis added] [65] Dr. Grabowski's updated and expanded diagnosis of Ms. Nadeau's injuries caused by the collision is set out in her October 12 Report: 1. Musculoligamentous strain of the lumbar spine with probable facet involvement and piriformis syndrome.

2. Musculogamenetous strain of the cervical spine with bilateral myofascial pain of the shoulder girdles.

3. Cervicogenic headache - resolved.

4. Bruise on right foot - resolved.

5. Anxiety and mood disorder and driving anxiety- improved but ongoing.

6. Groin pain NYD.

7. Chronic pain disorder (fibromyalgia falling under this category). Causation: I believe the motor vehicle collision is directly causal to these injuries. There is a consistent temporal relationship between the accident and the onset of symptoms. In addition, her symptoms are marked by both persistence and consistency in the medical records. [Bold in original] [66] In that report, Dr. Grabowski explained the nature of Ms. Nadeau's chronic pain: I feel that she has developed a chronic pain disorder. She describes quite diffuse pain involving her bilateral shoulders and hips as well as her neck and low back. She experiences non-refreshing sleep and has developed a central sensitization phenomenology. In such cases, the receptors in the spinal cord begin communicating with one another in an aberrant way and begin to perceive light touch as pain. These receptors transmit pain up to the cortex of the brain, allowing the brain's emotional centers the opportunity to magnify the pain. The areas of the brain that perceive pain also begin to pathologically expand and a vicious cycle of chronic pain ensues. [Emphasis added] [67] Dr. Grabowski determined Ms. Nadeau's groin pain was caused by the Accident and testified that she thought it was neuropathic in nature. [68] Dr. Grabowski's updated and, for the most part, unchanged opinion concerning impaired function is explained in this

excerpt from her October 12 Report: Function: She is independent in her activities of daily living and I do not foresee any difficulties in this area. However, she continues to experience some driving anxiety. Recreation: Her recreation continues to be affected adversely. She has had difficulties camping, hiking, fishing, boating and riding her quad. I feel, due to the prolonged nature of her symptoms, that her recreation will continue to be limited for the foreseeable future. Work: Her work continues to be limited. She is able to work 15 hours per week cleaning the bus but cannot, at this point, return to driving. I agree with these limitations, as I feel that her driving anxiety is still too severe for her to safely return to driving children. In addition, her neck becomes quite painful as a result of repetitive shoulder checking. She is able to perform most of her duties at work but then needs several days of recovery. I feel it is important for her to remain job-attached, though I do not foresee her being able to increase her work hours. I feel it is likely she will be able to continue with her current work. She is able to complete most of her housework─and lawn mowing─by breaking the tasks down. She used to chop firewood, as their main source of heat in their home is their wood burning stove. Her husband is now responsible for this task. Ongoing assistance with this task,

from her husband or another party is he is not available, would be helpful for Ms. Nadeau as chopped wood is required to heat their home properly. [Emphasis added] [69] In her February 17 Report, Dr. Grabowski recommended Ms. Nadeau continue with pain medication, engage in an active rehabilitation program in consultation with a physiatrist, and continue with a pool exercise program indefinitely. She also raised the possibility of nerve blocks: I would recommend a referral to a physiatrist in Nanaimo, such as Dr. Ross Davidson. I feel she needs to have some comprehensive rehabilitation. Trigger point injections could also help in some of her short-term relief. He may consider some interspinous ligament injections as well. Her family physician could consider switching her from Citalopram to Cymbalta which also has very good anxiolytic properties but is better for pain management. Dr. Davidson could also consider bilateral greater occipital nerve blocks which can be quite helpful in alleviating some of the neuropathic pain. I feel in the long term she will continue to need an active rehabilitation program and will need intermittent visits to physio for flare-ups of pain and review with kinesiology to advance an active rehabilitation program. [70] Dr. Grabowski continued to recommend an active rehabilitation following her assessment of Ms. Nadeau on October 12,

2018: Treatments: She has received mostly passive therapy. She has started with the Pain Clinic, however, and has received radio frequency ablation, which has proven helpful. She continues to see the Pain Clinic doctor and tells me that she may be receiving further injections. These injections can be very helpful but are not a cure, conferring only medium term benefit. She needs to maintain her participation in an active rehab program. She tries to attend the pool as much as she can, but since gaining custody of her one-year-old grand-daughter this has been a bit more challenging. I feel that continued access to a pool and some basic home exercise equipment would be useful. She continues with Cymbalta and nortriptyline. She is on an extremely low dose of nortriptyline. I would recommend increasing her does to at least 30 mg, to be taken two-to-three hours before bedtime. This could help with her pain as well as her sleep. [Emphasis added] [71] Ms. Nadeau followed Dr. Grabowski's recommendations concerning medication and active rehabilitation. She also attended a pain clinic, as recommended, and as noted in the previous section, underwent nerve ablation treatments in Nanaimo. [72] As for prognosis, Dr. Grabowski opined in her February 14 Report that Ms. Nadeau had "potential to improve" her recovery but was not "overly optimistic" that Ms. Nadeau would make a full recovery.

Noting improvement in some areas in her October 12 Report, Dr. Grabowski said that Ms. Nadeau will nonetheless be left with chronic pain with an adverse impact on her quality of life for the foreseeable future: Prognosis: In terms of prognosis, it has been just under three years since the motor vehicle collision. Basic literature is clear that patients who still experience pain at the two-year mark have poor prognosis for future improvements. Ms. Nadeau has made some improvements since my last review in February 2017. Her headaches have resolved and her neck pain has improved substantially. However, she continues to experience low-grade neck pain that is exacerbated by excessive movement. At the same time, despite intensive therapy, she continues to have significant low back pain. Crucially, her pain complaints have generalized somewhat, and I feel she has developed a chronic pain disorder ─ a condition with a poor prognosis. I feel, unfortunately, that she will be left with chronic pain complaints that will have a negative impact on her quality of life and diminish her ability to participate in her preferred recreational activities and vocation for the foreseeable future. I do not feel that this accident will predispose her to any early degenerative changes. [Emphasis added] [73] Dr. Grabowski was also alive to Ms. Nadeau's psychological symptoms and wrote in her October 12

Report: I feel that she still has many unmet psychological needs. She is having difficulty sleeping and is still having driving anxiety. I feel she needs more clinical counselling to help her with this. She may do well at the Nanaimo Pain Clinic at their Pain Education Series in learning the mind-body pain correlation. [74] When her prognosis was challenged in cross-examination, Dr. Grabowski explained the difference between a patient who is a "blank canvass" with no prior treatments and a patient such as Ms. Nadeau who had undergone various treatment protocols, including nerve ablation therapy. The former, she said, has a greater opportunity for improved function: Q Okay. Now, at the risk of confusion ‑- not so much confusion, but I'll just put it out there. Time one being your February 17th report, time two -- A Mm-hmm. Q -- being your October 12th, 2018, report, her pain interference indexes, ratings, whatever you want to -- measurements, whatever you want to call ‑‑ A Mm-hmm. Q -- have reduced significantly, do you agree? A Correct. Q Yet we have no difference in work function. A Correct. So, a lot of her pain complaints, including the headache, the neck pain, and part of the back pain, have improved. But the main limiting factor has been the low back pain for the return to work option. So, that is her main physical barrier for return to work. And though she subjectively

reported some improvement with her emotional health with the addition of the two psychiatric medications, her emotional health is still a barrier for her. Q Okay. When you say her "emotional health", are you just referring to the driving anxiety? A No. After the completion of this report, I now have Dr. Riesel's [phonetic] report, where she was [formally] diagnosed with an adjustment disorder, with depression and anxiety. And I would defer to his report that he felt that she's got a very poor prognosis for further improvement in that regard. Q But physically, do you think, if she followed your recommendations -- remember, I recall what you said, there's no guarantees. But do you think there's chance of improvement, physically, if she follows your recommendations? A So, at three years out, there's -- there is a slight chance of improved function. And again, I'm not as concerned about pain; I'm more concerned about function. So, if she had not had any treatment -- so if a patient came to me, three years out, as a blank canvas, they've never had injections, never done rehab, never had any medications, I would say, you know, it's unlikely they're going to improve, but there's a chance. But the fact that she has already been to an interdisciplinary pain clinic, one of the top pain clinics on the Island, and has had treatment there -- a radiofrequency neurotomy is not a small

procedure. This is a majorly invasive procedure that is extremely painful. What they do is actually burn the nerve root to help kill that nerve so it has decreased sensation. And the fact that she has already been willing to undertake that procedure, various injections, and then is trying to work on a commitment for a rehab program ‑- and again, I didn't know this when I wrote the report, but I understand that she has gone on to work hard on an active rehab program, and yet still has limited function makes me very poorly optimistic that this will translate into improved function. Q With respect to her job as a bus cleaner. A Correct. [Emphasis added] [75] Dr. Grabowski agreed with defence counsel's suggestion that Ms. Nadeau could be retrained to give her computer skills, which in turn would allow her to find other employment. However, she explained Ms. Nadeau had a better chance of success if she had a job involving gentle movement, with a great deal of flexibility to move about, work with a sit/stand desk, and to take micro-breaks. According to Dr. Grabowski, Ms. Nadeau is not suitable for a job involving prolonged sitting: Q Okay. What is your opinion about her doing other jobs? A Yeah. So, I know some of her other skills that were working with ventilated quads, so that would be a very challenging job. But, you know, she could be retrained to have perhaps some computer

skills. And if she had a job that entailed a lot of flexibility where she could have a sit/stand desk, perhaps have micro breaks, that -- I think that she'd have a better chance of success. So, you wouldn't want a job where she is fully sitting for a prolonged period of time, but something where she is doing some gentle movement. As I said, there's that sweet spot of activity for Ms. Nadeau, not complete rest, not too far activity. But if she could find a job in between, then I think her chance for success would be much higher. [Emphasis added] [76] In cross-examination, Dr. Grabowski was questioned about Ms. Nadeau's ability to drive: Q Now, under "Work", you have: Her work continues to be limited. She is able to work 15 hours per week cleaning the bus, but cannot, at this point, be turned to driving. I agree with these limitations, as I feel that her driving anxiety is still too severe for her to safely return to driving children. How did you feel about her driving regularly? A I don't think that she experienced as much anxiety, but she still did. And she was choosing to use an e-bike and walk as much as possible. But I think the bus itself was a main trigger for her, because that had been the source of the accident. So, she's limited, both physically and psychologically with that. And you know, as a mother with two children that take the school bus, I would not want Ms.

Nadeau driving my children. You know, with the amount of distraction and loud children, you need somebody that's absolutely sharp reaction time. And with her pain, she's going to be distracted, might not be able to move her foot on the pedal as fast as she would like to, to get onto the brake. And knowing how loud children are in a school bus, and the fact that when she had tried to return to driving, we had a real-world test that she was so anxious, she was almost too cautious, which as you know, is not safe either, and that she slammed on the brake so hard that the kids in the bus were actually frightened. [Emphasis added] [77] As mentioned at the outset, Mr. Toulmin denies that Ms. Nadeau suffers from any driving anxiety. In his defence, Mr. Toulmin placed great emphasis on what he says is a lack of logic in Ms. Nadeau's apparent comfort in riding an e-bike (with her granddaughter on a seat in the back) and her claim to be suffering from significant driving-related anxiety. Dr. Grabowski was questioned at length in cross-examination on the point even though she is not an expert in that field (she has some medical training in psychiatry). In the course of answering, Dr. Grabowski made it clear that the assumptions in defence counsel's questions are inapplicable to someone suffering from the type of anxiety disorder diagnosed by Dr. O'Breasail: Q How about not just what she is

doing, but the fact that being on a bike, an e-bike or a regular bike, with a grandchild, that you certainly are more open to injury when other people make mistakes, even if you're not making a mistake, correct? A Agreed. Agreed. Yeah. I -- personally, I don't like riding with my children on a bike. Like, we make safe decisions riding our bikes. But you're right. Even like a motorcycle, you always are at risk for other drivers. So, it is certainly more risky. Q It's a lot riskier, isn't it, because there's absolutely no protection. A That's correct. Q Yet, she can ride her e-bike herself or she can -- A Mm-hmm. Q -- ride her e-bike with her granddaughter on the back, and not consider the risk. A Yeah. From a logical point of view, from your and I's point of view, it makes complete sense. And that's why I think it actually talks to her anxiety, because anxiety doesn't make sense. So, we can be absolutely fearful of things that don't make sense. And when you're in the middle of an anxiety attack, you really can't think rationally. You know, you can be totally fearful of a dog. And rationally and logically, that dog -- the chance of that dog biting you is extremely low. But patients, unfortunately, their anxiety takes hold of them, and anxiety is not a rational disorder. Q I'm really interested in your response there, because one of the comments that Ms. Nadeau has made is in

driving, and she's going along, and if she gets anxious and startled if a car is coming to a stop sign and maybe looking like it's going past it or somebody is going to go through a red light, all these types of things, so she's -- you know, she has to make decisions. And then -- A Yes. Q -- you've talked about her slamming on the brakes and such. Well, the same type of situation arises when you're riding an e-bike. You're going along -- A Yes. Q -- and somebody is coming to a stop sign, they could go through it. You're on your e-bike with your granddaughter. A Mm-hmm. Q That's -- A Yes. Q -- just the same, isn't it? A I would say logically, for you and I, it would be the same. And I would be more fearful on an e‑bike. I'd feel much safer in a car than I would on an e-bike. But the case is different for Ms. Nadeau that she didn't have an accident on her bike, and therefore her brain chemistry is wired differently for different situations. So, people can be scared of one thing and not scared of another thing. So, it doesn't make sense from a logical point of view. And that's the thing about mental health issues is that sometimes you can give patients all the logical explanations in the world. But innately, it does not change their experience of that fearful event. [Emphasis added] [78] In listening to Dr. Grabowski's evidence, I was satisfied that her opinion concerning driving

anxiety and logic were not influenced by the opinions contained in the medical-legal report of Dr. Aindrais O'Breasail, the psychiatrist retained on behalf of Ms. Nadeau, which she had received prior to preparing her October 12 Report. [79] Before turning to Dr. Paramonoff's evidence, I will conclude with my observation that I found Dr. Grabowski's evidence considered and candid throughout, without any hint of argument or advocacy, and I accept her diagnosis and prognosis. Dr. Paramonoff [80] Dr. Paramonoff assessed Ms. Nadeau on September 16, 2019. Her diagnosis of the injuries caused by the Accident are nearly consistent with Dr. Grabowski. In addition to diagnosing chronic pain, she confirmed that Ms. Nadeau presents with a mood disorder confounding her physical pain presentations. [81] There are two differences in their diagnoses. First, Dr. Paramonoff determined that Ms. Nadeau suffered from asymptomatic degenerative changes in her lumbar and cervical spine which were rendered symptomatic by the Accident. Second, differing from Dr. Grabowski, who was not able to specifically determine the cause of Ms. Nadeau's periodic and at times severe shooting pains in her groin, Dr. Paramonoff opined it is caused by certain low back injuries suffered in the Accident. Dr. Paramonoff was able to make the diagnosis based on the results of an MRI conducted on July 22, 2018, which were not

available to Dr. Grabowski. [82] In Dr. Paramonoff's opinion, the injuries caused by the Accident are: (a) mechanical low back pain; (b) myofascial injury at the left groin; (c) musculoligamentous injuries at the neck (unmasking underlying degenerative changes); (d) myofascial injuries in the upper back regions; and (e) mood symptoms and psychological issues present as confounding factors to Ms. Nadeau's overall symptom presentation. [83] Dr. Paramonoff considered and ruled out any potential role of Ms. Nadeau's upper back injury from the 2009 motor vehicle accident. She concluded Ms. Nadeau's clinical presentation was "most consistent" with myofascial injuries at the upper back including shoulder girdle regions caused by the subject Accident. However, she opined that the injuries caused by the Accident unmasked underlying degenerative changes in Ms. Nadeau's spine. [84] Mr. Toulmin does not assert that those degenerative changes or Ms. Nadeau's prior injury from the 2009 accident engage a "but for" or material contribution or crumbling skull analysis. [85] In all, Dr. Paramonoff opined in her medical-legal report that Ms. Nadeau suffers from chronic pain. She wrote the following in her medical-legal report dated October 28, 2019: · Prior to the subject MVA, Ms. Nadeau describes having been in a previous motor vehicle accident in 2009, resulting in neck/upper back/shoulder

symptoms; the symptoms had "pretty much" resolved other than occurring once in a while and not being functionally limiting. As such, it is my opinion that the pre-MVA clinical presentation of mechanical pain at the neck and associated myofascial sources had a baseline and trajectory likely of having regional symptoms from time to time, and with risk of worsening symptoms with advancing degenerative changes at the neck over time. · The post-MVA clinical presentation is most consistent with musculoligamentous injuries at the neck and myofascial injuries at the upper back (including shoulder girdle) regions. · These superimposed soft tissue injuries likely also resulted in some unmasking of underlying degenerative changes at the neck, rendering them to become more symptomatic (i.e. above the pre-MVA baseline and trajectory) and further contributing to the post-MVA symptom presentation. This includes that underlying degenerative changes (clinical diagnoses) at the neck is likely referring some symptoms into the upper back regions. · Decreased activity due to pain and limitation after the MVA likely resulted in muscle imbalance/deconditioning and associated myofascial sources, also muscle imbalance/deconditioning and associated myofascial sources, also further contributing to the post-MVA symptom presentation. · It is my opinion that confounding factors are likely also contributing

to the post-MVA and ongoing symptom presentation. Such factors include mood symptoms/ psychological issues, decreased sleep. Such factors can negatively affect a person's experience of pain, thereby contributing to an ongoing [chronic] pain presentation. · Overall, the injuries and sequelae from the MVA likely also resulted in an aggravation of the pre-existing regional symptom presentation. · The residual clinical presentation is most consistent with residual musculoligamentous and mechanical sources at the neck, myofascial sources at the upper back regions, and including contribution to the symptoms from muscle imbalance/deconditioning; likely representing an increased baseline of symptoms above the pre-MVA baseline and trajectory. [Emphasis added] [86] Dr. Paramonoff also defined her use of the terms "mechanical pain" and "muscle imbalance" in her report: Terms generally used: Mechanical pain arises from bones, discs, and/or associated structures, including from injury, degenerative changes, or abnormal use (i.e. altered mechanics); musculoligamentous pain arises from muscles, ligaments, and/or associated structures, and myofascial pain arises from muscles and/or associated soft tissues, often as a result of injury, overuse, or abnormal use. Post-MVA muscle imbalance/deconditioning can result from a combination of factors subsequent to musculoskeletal injuries, including

pain inhibition, altered mechanics of movement, and decreased activity; and can be associated with resultant myofascial sources (i.e. muscle overuse or underuse can result in secondary areas of soft tissue pain such as muscular symptoms and/or inflammatory bursitis, as these additional areas are subjected to abnormal use). [87] In her testimony, Dr. Paramonoff included Ms. Nadeau's chronic pain and impaired sleep in addition to her psychological issues as confounding factors contributing to her pain presentation. [88] Dr. Paramonoff also agreed that where there is a combination of psychological or psychiatric illness and physical pain, one can compound the other. Physical pain, she said, can compound a mental disorder and mental illness can worsen the perception of physical pain. Dr. Paramonoff added that impaired sleep, which Ms. Nadeau suffers from (in part due to her psychological injury and pain from the Accident and in part from recently diagnosed sleep apnea) can also contribute to "that same circle". [89] Dr. Paramonoff was provided with Dr. O'Breasail's report before she met with Ms. Nadeau. As I explain in a later section of these reasons, Dr. O'Breasail determined that Ms. Nadeau suffers from a psychological injury caused by the Accident. Independently of the opinions expressed in Dr. O'Breasail's report, Dr. Paramonoff determined during her examination that Ms.

Nadeau suffers from mental health issues which act as compounding factors to her ongoing emotional experience of chronic pain. I have extracted some of her testimony below: Q Got it. And dealing with diagnoses, then. At the bottom of page 9, (d), I believe this would be your last diagnoses. Tell me if I'm wrong. It is "mood symptoms/psychological issues". Correct? A That's correct. Q So you diagnosed mood symptoms/psychological issues. What are the -- what do you mean by "psychological issues"? Are we talking about psychological illness? A So I should actually clarify. Q Please. A So under point (d) there that I've bolded, the moods and surgical issues, sorry, that's not -- it's not a diagnosis per se, so I would also defer to psychiatry and psychology to make a diagnosis. Q Okay. A The reason I list that -- those items there is because her clinical presentation regarding the musculoskeletal symptoms, like I've mentioned, they act as compounding kind of factors, so I believe that those -- those compounding factors are contributing to her ongoing emotional experience of her pain there. But ultimately for diagnoses, I would defer to psychiatry and psychology. Q All right. You -- let me understand. You picked up, from speaking with her, that there were mood -- mood symptoms, correct? This is what you're getting from -- A That's correct. Q And some psychological issues dealing with

this lady, that she's -- she's dealing with? Do I have that? A Correct. Q Got it. You decided not to make a diagnosis of psychiatric illness. You would defer to the psychiatrist to do that, correct? A That's correct. Q You did have -- A But I do think it's important -- Q Please go -- yeah, go ahead, please, ma'am. A I do think it's important for me to make note, though, that those factors, it was apparent to me that there were those type of issues present; again, because it affects -- Q Right. A -- her overall functioning and her clinical presentation, so I do make note of those factors and basically further information required from psychiatry and/or psychology. Q Yes, and thank you for that. So when you use the term "confounding factors" you're talking about what you picked up through your interview with this lady in terms of her mood and psychological presentation, then, correct? A Yes, I am, and let me just have a quick look at that. I mean, I do have the medical legal opinion of the psychiatrist -- Q Right. A -- as well, who is recommending -- talking about some vulnerability, makes a diagnosis and is making some recommendation for psychological interventions. I also have that piece of information, too, but certainly the overall clinical presentation that Ms. Nadeau had with me was that there were these other factors contributing to her clinical presentation of ongoing

pain and -- and affecting her functioning. Q Yes, and thank you for that. And that -- you're actually referring to the report of Dr. O'Breasail, correct? A Yes. Q And you saw from his report that he actually made a diagnosis of adjustment disorder, correct? A Yes. Q But you didn't make such a diagnosis, you deferred to a psychiatrist for the actual diagnosis of any psychiatric illness, correct? A That's correct. That's been my pattern of practice. Q Yes. A But I will ask questions about mood and anxiety and -- and coping, because it is relevant to me, but it's my pattern of practice, I don't delve into a full psychological psychiatric history of an individual beyond asking some of those basic questions. Q And thank you. So when you use the term, for example, on page 8, two-thirds of the way down [as read in]: It is my opinion that compounding factors are likely also contributing to the post-MVA and ongoing symptom presentation . . . -- and that's in reference to the low back [indiscernible] -- when you use the term "compounding factors", are you talking about her mood and psychological presentations that you picked up in interview? That's all I want to know. A Yes, I am, but I've gone on to explain, it also -- so mood and psychological are a big -- a big category, and that can include actual, you know, psychiatric diagnoses -- Q Yes. A -- or it can include, you know,

difficulties with coping. It can include, you know, someone, you know, has pain symptoms, you know, for example, you know, when I did have her do whole body rotation, there was, you know, pain at the lower back, even though that didn't involve moving the lower back. It also includes a fair amount of, you know, potentially distress that someone's presenting. So, yes, it's based on the clinical presentation to me. But I've also noted that compounding factors don't just include mood and psychological issues. It also includes decreased and disrupted sleep. [Emphasis added] [90] Dr. Paramonoff confirmed that a person suffering from chronic pain may not necessarily suffer from psychological or mood issues, but when both are present, one can compound the other: A And what I'm making a note in that paragraph is that chronic pain has numerous contributory factors. Q Yes. A person can have chronic pain without the psychological or mood problems, can't -- can't he or she? A An individual, yes, can have pain. More often than not there are intertwining factors. Q Yes, and as I understood your evidence, and perhaps in your report, as well, where you have a combination of psychological or psychiatric illness and physical pain, one can compound the other; is that correct? A That's correct. Q So, physical pain can aggravate a mental disorder, a psychiatric disorder, and mental illness can

worsen the perception of physical pain? Is that about right? A That's correct, and the other part of that triangle, so to speak, that I had included when I was asked that earlier was also sleep can -- Q Yes. A -- is part of that same -- same circle. [Emphasis added] [91] In terms of prognosis, like Dr. Grabowski, Dr. Paramonoff opined in her report that Ms. Nadeau "will likely have a prolonged recovery": When I saw Ms. Nadeau, it had been approximately 3 years and 8 months since the MVA. It is my opinion that Ms. Nadeau will likely have a prolonged course of recovery, given the cumulative effect of superimposed soft tissue injuries (history of pre-existing symptoms at the upper body), contribution from unmasking of pre-existing degenerative changes, post-MVA muscle imbalance/deconditioning, and confounding factors. [92] In her testimony, she confirmed her prognosis that Ms. Nadeau will never be pain-free: Q Okay, thank you very much. You addressed prognosis in your report. You were asked about it in your examination in chief. To be clear, it is your opinion that Ms. Nadeau will not fully recover from her pain, correct? A Prognosis. That's correct. I don't think she is going to become symptom-free. Q You express the opinion that with successful strategic rehabilitation, she may experience -- may experience mild to moderate improvement, correct? A So I would use a stronger term

than "may". It is my opinion that she can -- that she will have improvement. It can be up to a moderate extent of improvement of her symptoms, and as we had discussed earlier, symptoms management. Q Got it. So "may" was my mistake. The word you use actually in your report is "can". [As read in]: It is my opinion that Ms. Nadeau can have up to moderate symptomatic/symptoms management improvement. A That's correct. Q And in answer to my friend in chief, you said "mild to moderate"? A So when I say "up to moderate" -- Q Yes. A -- I'm not saying with certainty that it will be moderate improvement. Q Exactly. A But it is my opinion that there will be improvement. [Emphasis added] [93] At one point there appeared to be a difference of opinion between the physiatrists concerning prognosis. Dr. Paramonoff wrote in one part of her medical-legal report that subject to the effect of Ms. Nadeau's psychological factors, a period of six to nine months was a medically reasonable period for Ms. Nadeau to have missed work on account of her physical soft tissue musculoskeletal injuries. However, as I explain in the paragraphs that follow, a fulsome review of Dr. Paramonoff's report, augmented with her clarifying testimony, demonstrates that opinion is confined to a theoretical musculoskeletal analysis without considering Ms. Nadeau's own circumstances. [94] To start with, the following excerpt

from her report illustrates that Dr. Paramonoff's opinion concerning a return to work in six to nine months post-collision presumes a successful outcome of Ms. Nadeau's participation in an exercise program, resulting in improved function, and that Ms. Nadeau will be able to make certain activity adaptations to her work environment and be able to successfully treat her psychological issues: 3. Degree of present and residual disability, if any. My opinion as to Ms. Nadeau's present and future ability to work, and as to how much time off work would be reasonable in light of the injury and job duties. It is my opinion that Ms. Nadeau does not have a medical contraindication from participating in activities as a result of the soft tissue injuries sustained from the MVA. · However, consistent with the residual clinical presentation, Ms. Nadeau requires some activity adaptations; · this represents pain limitation, which is different than activity avoidance that can occur due to the psychological sequelae of having pain with activity- please refer to my recommendations to gradually build up muscle strength and conditioning, and management of confounding factors, to improve tolerance of activities, and thereby improve the level of functioning; and avoiding a pattern of flares of pain when doing increased activities without the optimal muscle balance and strength to carry out these

activities. [Underlining in original] [95] The activity adaptations referred to by Dr. Paramonoff and described in her report in the excerpt below are not readily available to her driving school buses: · Adaptations include- ° taking micro breaks when required to be in prolonged positioning (to decrease static prolonged positioning); ° pacing and prioritizing activities, including breaking larger/heavier tasks into smaller portions; ° ensuring optimal ergonomics, and optimal mechanics of movement; · and, due to the contribution from post-MVA muscle imbalance/deconditioning to the ongoing presentation, Ms. Nadeau is likely to be better able to tolerate activities with the regular independent exercise program. · It is my opinion that the required adaptations are more likely than not to decrease as per my discussion on prognosis and recommendations, but are unlikely to be eliminated. [96] In her viva voce evidence-in-chief and in cross-examination, Dr. Paramonoff explained that she did not expect Ms. Nadeau to return to full-time work after six to nine months. Instead, she said, the comment in her report was based only on a consideration of Ms. Nadeau's musculoskeletal soft tissue injuries on a stand-alone basis (without taking into account any confounding factors and need for improvement in Ms. Nadeau's level of strength and function). [97] In her evidence-in-chief, she

explained: Q So it's your opinion that she could continue with the cleaning and perhaps do more; is that it? A That's correct. She'd be able to better tolerate the activities. And I've said, again, it's hard to tease out separately because they are intertwined, the psychological factors and the musculoskeletal factors. They certainly, with a chronic pain presentation, are intertwined. But from the musculoskeletal standpoint, you know, certainly with continuing to build her strength and conditioning, it is my opinion that her tolerance for activities, including work, can improve. [Emphasis added] [98] In cross-examination, Dr. Paramonoff also confirmed that her opinion did not concern Ms. Nadeau's ability to return to work driving school buses: Q Okay. But if it was just the physical alone, you would expect a reasonable period of continuous disability to be six to -- what -- six to nine months, something like that? A That's correct. Q But we're not dealing with just the physical, correct? A That's correct. Q We are dealing with chronic pain with, as you observed, mood and psychological problems, correct? A Correct. Q And then if -- if we were to accept the evidence, for example, of the psychiatrist whose report you have, then there is a separate illness as a consequence of the accident, i.e. the illness of adjustment disorder, correct? A That's correct. The psychiatrist has made

those diagnoses. Q And you -- A So, to be clear -- Q Please. A -- as I go on -- Q Go, please. A Where I talk about the six to nine months -- and, sorry, it goes over onto the next page -- I'm noting that the limiting factors to her driving, she's describing too much anxiety and not feeling safe, so psychological issues to not having returned to the driving of the bus. Q And you're not expressing an opinion in regards to her ability to drive a bus, given the presence, if we accept it, of psychiatric factors affecting her ability to drive a bus, correct? You're not expressing an opinion on that, are you? A No. I would defer it to the psychiatry and psychology for that. What I am noting is that is the described history to me, that it's -- that she herself describes that she feels too anxious and doesn't feel safe to go back. [Emphasis added] [99] Dr. Paramonoff shared Dr. Grabowski's opinion that Ms. Nadeau would, at the time she prepared her report, over three and one-half years post-collision, continue to benefit from an increased exercise program: Notwithstanding the time elapsed since the MVA, it is my opinion that Ms. Nadeau can have up to moderate symptomatic/symptom management improvement. · Such improvement will require the regular maintenance of an increase independent exercise program; · and with management of the confounding factors. · It is my opinion that such

management and symptom improvement will not eliminate the symptoms, and that Ms. Nadeau will likely have a residual baseline of symptoms (above the pre-MVA baseline/trajectory regarding the neck/upper back/shoulder girdle regions symptoms), due to the superimposed injuries and sequelae from the MVA. [Emphasis added] [100] According to Dr. Paramonoff, Ms. Nadeau must still take steps to improve her function, adding that although she is "heading in the right direction", she would nonetheless benefit from subtle changes in her exercise program from a kinesiologist. [101] Dr. Paramonoff also acknowledged that she was aware at the time of her assessment Ms. Nadeau was attending a gym approximately three times per week, had obtained instruction for her gym routine from a kinesiologist, was swimming at a pool, and was engaged in a stretching routine at home on a near daily basis. [102] I will conclude this section with my finding that even without considering any prospect of resolution of Ms. Nadeau's psychological issues, the evidence of Ms. Nadeau, her bus driver co-worker, and her supervisor establish that although micro breaks are possible while cleaning school buses, the adaptations described by Dr. Paramonoff are not available for a school bus driver. Conclusion [103] There is very little difference in the opinions of the physiatrists. The physical injuries Ms. Nadeau suffered

in the Accident are well described in their reports. Based upon the results of an MRI not available to Dr. Grabowski, Dr. Paramonoff was able to diagnose the cause of Ms. Nadeau's groin pain. She also determined that some of her ongoing pain is attributable to pre-existing degenerative changes in her spine rendered symptomatic by the Accident. [104] Dr. Paramonoff's prognosis and recommendations for ongoing treatment are essentially aligned with opinions expressed by Dr. Grabowski. [105] Dr. Paramonoff's evidence does not establish that Ms. Nadeau was fully capable to return to work, including driving school buses, within six to nine months following the Accident. A thorough review of Dr. Paramonoff's report shows that her opinion was limited solely to musculoskeletal factors without any consideration for Ms. Nadeau's confounding factors, her ability to successfully complete the requisite independent exercise program within that time frame, or the actual requirements of Ms. Nadeau's job duties as a bus driver and bus washer. Further, if the reader of her report is left with any doubt, it was dispelled by Dr. Paramonoff in her testimony. [106] Consequently, although the opinions between the physiatrists appear at first blush to differ regarding Ms. Nadeau's prospects for a return to work, I accept Dr. Grabowski's opinion and find that Dr. Paramonoff's evidence confirmed she

agreed with it. [107] Ms. Nadeau has obtained some improvement in symptoms and function since the Accident. She suffers from chronic pain affecting her daily function and mood for which there is some prospect for continued improvement but minimal opportunity for complete resolution. Her ongoing pain, her psychological issues, and impaired sleep exacerbate each other. Ms. Nadeau remains unable to work in her chosen occupation as a school bus driver. She is also unable to work more than three days per week cleaning school buses, and even then, finds it physically difficult. At times, her pain causes her to leave work early or miss a day of work altogether. Ms. Nadeau continues to require assistance with an exercise program and pain medication. With retraining, she is capable of working at other jobs which offer appropriate accommodation for her impaired function and ongoing pain. Psychiatrists [108] The parties each retained well experienced and highly qualified psychiatrists to provide their opinions concerning any mental health issues suffered by Ms. Nadeau as a result of the Accident. The opinions of the psychiatrists are in stark contrast to each other. Dr. O'Breasail [109] Dr. O'Breasail met with Ms. Nadeau on November 6, 2018. He diagnosed Ms. Nadeau with chronic pain from physical factors, with psychological factors caused by the Accident contributing to her overall

presentation and impairments. In his opinion, Ms. Nadeau suffers from an Adjustment Disorder with anxiety and depression resulting from the Accident itself, independent of the physical injuries she sustained. Her "psychological disorders", he wrote in his medical-legal report dated January 8, 2019, "play a role in the persistence and intensity of the pain she experiences." [110] An Adjustment Disorder is a mental illness. It is a psychological reaction to a significant stress that is out of proportion to the stress itself. Dr. O'Breasail explained that an Adjustment Disorder is typically self-limiting but if the injuries persist over time, as they have in Ms. Nadeau's case, the disorder may persist without resolution. [111] According to Dr. O'Breasail, Ms. Nadeau's psychological injuries were precipitated by the Accident itself. Her prominent symptom over time was anxiety but she also experienced depression, resulting in cognitive difficulties involving impaired concentration and short-term memory issues. Both persisted, Dr. O'Breasail said, when he saw her in November 2018. According to Dr. O'Breasail, Ms. Nadeau's anxiety is more prominent when she is in a vehicle, whether driving or as a passenger, but is also generalized to other areas in her life, and remains unresolved. Ms. Nadeau also suffered associated symptoms of post traumatic symptom disorder, including nightmares

and flashbacks. [112] According to Dr. O'Breasail, given Ms. Nadeau's brief, abusive relationship with her first husband and her past anxiety over her son's addiction issues, she was at increased risk of developing chronic pain and "at increased risk of developing psychological problems if exposed to a major traumatic event and the motor vehicle accident was such an event." [113] I have excerpted Dr. O'Breasail's discussion of his diagnosis in his report below: It is my opinion this woman experienced an Adjustment Disorder with anxiety and depression following the motor vehicle accident of 5 January 2016. Within a short period of the accident, she experienced anxiety, sleep disturbance, although this was partially secondary to pain, nightmares in which she re-experienced the accident, flashbacks in which she re-experienced the accident, low energy, fatigue, depression, tearfulness, at times feelings of hopelessness, but not suicidal ideation. She has experienced persistent anxiety, panic attacks on occasion, low energy, fatigue, cognitive difficulties, but she no longer experiences nightmares nor flashbacks. She has ongoing feelings of depression. She did experience significant symptoms of posttraumatic stress, in particular in the immediate aftermath of the accident. However, I do not believe she ever met the full criteria for this disorder. [Emphasis added] [114] In his

testimony, Dr. O'Breasail characterized Ms. Nadeau's anxiety resulting from her son's addiction issues and the family's estrangement from her younger son and his family as situational, as opposed to generalized anxiety, and of a "chronic stressful" nature that continues to persist. He noted, however, that it did not interfere with Ms. Nadeau's vocational functions and did not involve depression. He likened it to ongoing stress. [115] In Dr. O'Breasail's opinion, Ms. Nadeau's subsequent at-fault motor vehicle accident, which he characterized as minor, increased her psychological symptoms. In his report, he said it was unclear whether it would amount to a brief change or would be self-limiting: This woman was involved in a further motor vehicle accident a week prior to my seeing her. This would appear to have increased psychological symptoms, but does not appear to have had a negative effect on her physical state. It is difficult to know whether this will be a brief change in the increase of psychological symptoms, in particular her developing driving avoidance again, or whether or not this will be self-limiting. It is clear this was a relatively minor accident, as compared to the motor vehicle accident of 5 January 2016. [116] Ms. Nadeau's position (and evidence) is that the subsequent at-fault accident caused, at most, a short term aggravation of her existing driving anxiety.

She chose not to drive for one month after that accident. Mr. Toulmin does not assert that the at-fault accident contributed to Ms. Nadeau's psychological injuries or issues related to them. He does not assert there is any basis for an apportionment. Instead, relying on the opinion of Dr. Solomons (whose evidence I discuss in the next section), Mr. Toulmin's position is that Ms. Nadeau does not suffer from any psychological injuries caused by the Accident or at all. In the result, there is no basis to support a finding that the at-fault accident caused anything more than a temporary aggravation of Ms. Nadeau's driving anxiety lasting no more than 30 days. [117] Dr. O'Breasail did not view Ms. Nadeau's repeated attempts to return to work driving a school bus as inconsistent with his diagnosis. He explained it is common for individuals to attempt to return to work in spite of their anxiety. He has seen patients try to go back to work for up to a year before giving up because they cannot cope with the stress. [118] In his opinion, it is not safe for Ms. Nadeau to continue to drive, especially a school bus with children, in light of her symptoms and how they manifest in her driving. [119] Like Dr. Grabowksi, he explained that while Ms. Nadeau's comfort in riding an e-bike (with her granddaughter on the rear with no protection) may not be rational in light of her driving anxiety, it

is an expected response to her mental illness: Q And then she has bought an ebike, now she's testified as to why she bought the ebike, but she's also testified -- when you talk about responsible for young children -- A Yeah. Q -- it's a great responsibility, that her husband had affixed to the ebike a back seat, as it were, for the little girl and she rides the ebike, not all the time but at times, with her daughter on the ebike. And what I'm putting to you is she's responsible for a young child on a back of an ebike, which has no protection, whereas a car and certainly a big bus has. How do you reconcile that with your -- A Well, often anxiety disorders aren't rational in the sense that our fears can be such that any normal person -- normal person looking at it would say well that isn't really rational. And that may be a situation here. Whereas an anxiety can be attached to a specific area, circumstance, place, whatever, or action, such as driving a bus will be one of those in this situation, which may not transfer to riding a bicycle. Often it is. I'm not saying that it would never, but often it would be transferred to other activities, but not always. [Emphasis added] [120] In his report, Dr. O'Breasail recommended cognitive behavioural therapy ("CBT") and an increased dosage of medication as appropriate interventions: With regard to interventions, I would suggest the

following. This woman has ongoing anxiety, some depressive symptoms, as well as chronic pain. I would suggest that she be referred to a psychologist who would engage her in cognitive/behavioural therapy. I would suggest that she sees this individual on a weekly basis over a period of approximately three months and then that this be reduced in frequency to once every two to four weeks over the following nine months. The main focus should be on her anxiety, associated depressive symptoms, the avoidance behaviours, as well as her chronic pain. I believe she would benefit from such a contact. She had counselling previously, which she appeared to have benefitted from, but only to a limited extent. Most of the improvement she gained appears to have been secondary to the introduction of the antidepressant medication. At any rate, I believe she would benefit from psychotherapy. With regard to the medication she is taking, she has benefitted from and tolerated the Cymbalta, or duloxetine, quite well, although she has side effects to the medication, in particular dry mouth, and she has some periodontal disease so this is an issue for her. 60 mg is on the lower range of the therapeutic dose and individuals often benefit more from a dose of 90 mg or 120 mg daily. I would suggest a trial of increasing to 90 mg daily and further to 120 mg depending on tolerance and response. Likewise, with

the nortriptyline, this could be increased to 15 or 20 mg daily, as it is at a relatively low therapeutic level. [121] Dr. O'Breasail said CBT helps a patient such as Ms. Nadeau change their way of thinking, to focus "in on the here" and to deal with anxiety rather than reflecting on past issues and symptoms. It also involves the patient participating directly in activities designed to change thinking patterns. In his opinion, it is probably the most effective treatment for anxiety and depression, including driving anxiety. [122] Ms. Nadeau has not undertaken CBT and instead participated in what Dr. O'Breasail described as supportive therapy, as recommended by her family doctor. Ms. Nadeau continues to lack the funds to pay for CBT. It is a "big issue" for many patients, he explained, because it is available through psychologists who charge up to $200 per hour and not through mental health centres. Some counsellors offer CBT but in Dr. O'Breasail's opinion, a psychologist is better equipped to deal with Ms. Nadeau's case. In his extensive clinical experience, Dr. O'Breasail has rarely seen a family doctor refer a patient to CBT and he is not aware of Ms. Nadeau's family doctor making such a referral. [123] Even with his recommended interventions of CBT and pharmacological treatment, Dr. O'Breasail's prognosis for complete recovery is negative given the length of time Ms.

Nadeau's anxiety and depression have persisted. In his opinion, Ms. Nadeau will suffer from permanent partial vocational disability, impaired lifestyle, and continued driving anxiety : It is now nearly three years since this motor vehicle accident occurred. Many of her symptoms have developed a chronic course. She has persistent pain, particularly affecting her lower back and also pain into her left groin area. Given the time that has elapsed since the accident occurred and the amount of intervention she has had, it is unlikely that these pains will dissipate over time. I would hope and expect some improvement. However, the likelihood is that she will have persisting chronic pain in the long term with associated limitation in functioning. Likewise with her psychological symptoms, it is nearly three years now since this accident occurred. She has ongoing symptoms of anxiety and depression. I would hope and expect with appropriate treatment that there will be improvement in this area, but the likelihood of a complete dissipation of these symptoms is limited. [Emphasis added] [124] In his testimony, Dr. O'Breasail explained the longer Ms. Nadeau suffers from chronic pain, the more likely it is to persist regardless of treatment. As he said in his report, his hope is that treatment will help to lessen her pain. Her ability to return to work driving school buses, however, he said in

his testimony, is very limited: Q Fair enough. What is your view of Ms. Nadeau's future employability? A Well my opinion when I saw her was that she had got back to work on a part-time basis, somewhat limited, working I believe at that time fifteen hours a week. That she was capable of doing some work would be cleaning of the buses. It was my opinion, well it is my opinion that the likelihood of her getting back to driving again, driving a school bus, would be very limited. I think it's unlikely that that would occur. Q Unless the CBT treatment is positive and successful. A One has to look at the period of time that has elapsed since the accident occurred. Three years when I saw her, now four years. As I indicated earlier, many psychiatric disorders and physical disorders like chronic pain, develop a chronic course which makes them much more difficult to treat, the longer that they have been present. So if you have anxiety present for over three years with a significant associated driving anxiety or avoidance, even with the most appropriate treatment, including antidepressants and cognitive behavioural therapy, the likelihood of a remission, complete remission, is, as I say, limited. There may be some improvement that might help the individual with regards to their lifestyle or generally feeling a bit better about themselves. [Emphasis added] [125] According to Dr. O'Breasail,

approximately 20% of individuals do not get better and are left with ongoing symptoms that negatively affect their function. In Ms. Nadeau's case, treatment resistance is not intentional. Dr. O'Breasail added that it was a positive indicator that Ms. Nadeau is comfortable riding an e-bike and has driven a vehicle from time to time. [126] Ms. Nadeau's barriers to other employment, he said, are her anxiety and her chronic pain. A fulsome discussion of his prognosis is found in his report, which I have extracted below: It is my opinion this woman suffered a period of total vocational disability secondary to the injuries she experienced in the motor vehicle accident of 5 January 2016. She has developed chronic pain with associated limitation in physical functioning. She developed anxiety and depressive symptoms resulting in sleep disturbance, low energy, and fatigue, which have contributed to her disability. She has been capable of getting back to work cleaning buses, but has not been capable of driving them. Her inability to drive is largely as a result of her anxiety, but also partially as a result of her chronic pain. She has been capable of returning to work and currently works 15 hours a week. In my opinion, she will be capable of maintaining this in the future. However, it is my opinion she is suffering from a partial vocational disability, which I believe will persist over

time. I do not believe that she will be capable of getting back driving. I also believe it will be difficult for her to work in excess of the 15 hours a week that she is currently doing. In my opinion, this woman's ability to engage in recreational activities has been negatively affected by the injuries she experienced in the motor vehicle accident of 5 January 2016. As a result of that accident, she went on to experience chronic pain, anxiety, depression, as well as other physical and psychological symptoms. She is less capable of engaging in activities, such as hiking, which she previously enjoyed. She is less capable of detailing vehicles, another activity she had enjoyed doing for family members. She has been more socially withdrawn. She has been less capable of engaging in activities within the home and her husband has to help her in carrying out household chores. It is my opinion, with appropriate treatment, there likely will be some improvement in her condition in this regard. I understand she is to see a kinesiologist and physical rehabilitation, which is supervised, [which] may help her. Given that nearly three years have elapsed since the motor vehicle accident occurred, the likelihood is she will have persisting symptoms in the long term with associated limitation in her ability to engage in recreational, social, and household activities. In my opinion this woman's

ability to engage in close intimate relationships has not been significantly negatively affected by the injuries she sustained in the motor vehicle accident of 5 January 2016. Her husband is supportive of her, although there have been some stresses in this relationship in the past and they have had the increased responsibility of having to assume custody of their grandchild in the last year. I should note, however, that she is experiencing chronic pain, anxiety, depression, and irritability, symptoms that frequently give rise to difficulties in close intimate relationships. Another stress has been placed on the relationship is the financial difficulties that they have been experiencing, as a result of her significantly reduced income and also as a result of her having to pay for many of the treatments that she has received. [Emphasis added] [127] Dr. O'Breasail did not rule out the possibility that Ms. Nadeau may be amenable to vocational retraining given that she is presently working cleaning school buses. It depends on the nature of the work. Dr. Solomons [128] Dr. Solomons reached an entirely different diagnosis following his consultation with Ms. Nadeau on September 25, 2019. Dr. Solomons does not agree with Dr. O'Breasail that Ms. Nadeau suffers from an Adjustment Disorder or any mental health issues caused by the Accident. In his medical-legal report dated October 30,

2019, he said: 25. Diagnostic requirements for an adjustment disorder are that a person develop emotional or behavioural symptoms in response to an identifiable stressor that occur within three months of the onset of the stressor and that these symptoms or behaviours are clinically significant by either causing marked distress that is out of proportion to the severity or intensity of the stressor and/or significant impairment in social, occupational or other important areas of functioning.

26. From my review of the records, and based on Ms. Nadeau's account at this assessment, it is my opinion that her course following this accident did not meet these diagnostic requirements for an adjustment disorder, and I accordingly disagree with Dr. O'Breasail's diagnosis. [129] Dr. Solomons opined that Ms. Nadeau did not suffer a psychiatric disorder as a result of the Accident. In his opinion, any anxiety she may suffer from is non-pathological and not related to the Accident. No treatment was necessary, he said, other than "the handful of counselling sessions she received shortly after this accident." In his report, he wrote: 23. Taking all of these factors into consideration it is my opinion that she did not develop a psychiatric disorder and was not psychiatrically impaired as a result of this accident. In my opinion she has no psychiatric impediment to driving a school bus again. [130] Unfortunately, it is clear from reading his report and listening to his testimony that Dr. Solomons' opinions are predicated on inaccurate and critical factual assumptions. [131] For example, in his testimony, Dr. Solomons confirmed that he incorrectly thought that Ms. Nadeau did not return to driving a school bus after the Accident: Q Let me just understand your understanding of what you were told. Are you telling the court that you understood from your interview with her that she never

resumed bus driving after the accident? A Correct, that was my understanding. [132] He said that he only realized later that she returned to bus driving for a short time when he read a report from Ms. Nadeau's family doctor: Q And did you enquire of her what event or events occurred around the time she stopped driving which might have caused her to tell you about anxiety as part of the reason she stopped bus driving? Did you drill down on that? A It was my understanding that after the accident she never drove buses again, she only cleaned them, that is what she told me. The only reference I came upon to the fact that she had driven buses after the accident was that reference in her family doctor's report. So, it was my understanding that the reason she didn't resume driving buses was because of pain and anxiety. [133] He incorrectly assumed and wrote in his report that Ms. Nadeau returned to regularly driving a vehicle following the Accident. He incorrectly believed that Ms. Nadeau "regularly" drives a vehicle and has no "anticipatory" anxiety getting into one nor increased anxiety driving with her granddaughter as a passenger. He also incorrectly said that Ms. Nadeau drives her granddaughter to school five days per week and that she drives herself to work three days per week. [134] When pressed in cross-examination, Dr. Solomons testified that he could not have been in error

about these factual assumptions. [135] He confirmed the significance of his factual assumptions to his opinion in cross-examination: Q Well, indeed, then, that would ‑- that would give you comfort if she's driving to work every day, three days a week when you saw her, and taking the granddaughter to school everyday, five days a week, that wouldn't make sense if she continues to assert driving anxiety, would it? A Well, it would inform me that the anxiety that she feels under those circumstances on the road is not of clinical significance. [136] Dr. Solomons also assumed that Ms. Nadeau's anxiety (in addition to her flashbacks and nightmares) fully resolved within one month of the Accident. In his report, he wrote: 17. Anxiety, flashbacks and nightmares in the immediate aftermath of a traumatic event or loss are normal and are not necessarily a pathological response.

18. Ms. Nadeau experienced these symptoms soon after the accident, and they remitted after approximately one month. While she attributed their remission to antidepressant medication, it is my opinion that they remitted spontaneously because that is their natural course and that antidepressants do not typically lead to the remission of these symptoms.

19. Considering that these symptoms arose rapidly and remitted rapidly and did not recur after a later accident it is my opinion that they were normal and not pathological and that they did not amount to an acute posttraumatic stress or to any other psychiatric disorder. [Emphasis added] [137] Dr. Solomons resiled from his diagnosis concerning Ms. Nadeau's anxiety when challenged in cross-examination. He conceded it did not resolve within one month. However, he remained resolute in what he conveyed as his strongly held opinion that Ms. Nadeau does not suffer from any psychological injury or anxiety issues of any significance. In doing so, it was clear that he placed significant focus on his understanding that Ms. Nadeau continues to have little difficulty driving a vehicle. [138] I am satisfied that Dr. Solomons' inaccurate factual assumptions, which are clearly belied by the unchallenged and highly credible and reliable evidence of Ms. Nadeau and the lay witnesses, caused him to reject the veracity of Ms. Nadeau's account of her symptoms. As a consequence, and unlike Drs. Grabowski, Paramonoff, and O'Breasail, Dr. Solomons did not place the same weight on Ms. Nadeau's account of her anxiety and behaviours while in a motor vehicle. I agree with Ms. Nadeau's submission that Dr. Solomons also discounted the diagnosis made by Ms. Nadeau's family physicians who prescribed her

psychotropic medications to help with her anxiety and mood issues. [139] The cause of Dr. Solomons' factual errors is not clear. I am not prepared to make any findings concerning Ms. Nadeau's evidence about her negative interaction with Dr. Solomons since it was not raised with him in-chief or put to him in cross-examination. [140] Mr. Toulmin's submission that Ms. Nadeau's presentation before Drs. O'Breasail and Grabowski had improved by the time she met with Dr. Solomons is belied by Dr. Paramonoff's assessment. She readily detected Ms. Nadeau's mental health issues independently of the comments contained in Dr. O'Breasail's report when she met with Ms. Nadeau approximately 10 days before Ms. Nadeau's consultation with Dr. Solomons. [141] I also find that Dr. Solomons' disagreement with Dr. O'Breasail's diagnosis of an Adjustment Disorder is also premised on an inaccurate interpretation of Dr. O'Breasail's analysis. In discounting Dr. O'Breasail's diagnosis, Dr. Solomons wrote in his report that Dr. O'Breasail did not consider Ms. Nadeau's emotional state in relation to her sons: 27. I note that in making this diagnosis, Dr. O'Breasail does not appear to have considered the role of the emotional state in relation to her sons, and he provided no psychiatric assessment or diagnosis of her emotional state in relation to her sons, with both of whom she has very emotionally

painful and stressful relationships and circumstances. He provided no information as to why in his view the accident rather than these unrelated stressors is responsible for this diagnosis. In my opinion it is far more likely that the stress in relation to her sons would result in an emotional or psychiatric disorder than the accident since in my psychiatric opinion the circumstances related to her sons are significantly and inherently more stressful than the 2016 accident was. [Emphasis added] [142] Ms. Nadeau's issues arising from her relationships with her children are dealt with in Dr. O'Breasail's report. He concluded that stressors from those relationships made her vulnerable to psychological issues if she was involved in a traumatic event. [143] Dr. O'Breasail considered Ms. Nadeau's account of her difficulties with her sons at length: Other factors have contributed to psychological distress, including her 28 YO son's severe substance abuse problem that has rendered him homeless. A year ago she had to take over custody of her son's then 11-month-old child, as neither her son nor the child's mother were capable of caring for her. She has also experienced financial difficulties, as a result of her reduced income. She was involved in a further motor vehicle accident approximately one week prior to my seeing her in which she t-boned another vehicle. She did not experience

any change in her physical symptoms, but there was some increase in her level of anxiety since that time. She stated that her son, [K.], is age 28 and is a heroin addict. He also abuses other substances, such as crystal methamphetamine and cocaine. He has been abusing substances since age 17, but his substance abuse has increased in intensity in the last year and he has been homeless living on the streets over that period of time. She stated she and her husband have done their best to try and support him. However, to no avail. He on one occasion broke into the house and has stolen items from them and pawned them off. On one occasion, they bought a trailer for him hoping that he would live in it, but this did not work out. Her son had been in a relationship with a woman who had mental health problems. They had a child and were incapable of looking after the child. Social Services intervened and she now has custody of this child, [S.], whom she states she is very close to and has a very good relationship with. Her son, however, is a constant worry. In August of this year, when she and her husband were away, her son moved into their back yard with another individual to live there. When they returned from their vacation, they found drug paraphernalia all over the back yard. Her son has also had problems with the law for shoplifting and I understand he is up on charges for

assaulting his ex-girlfriend, the mother of [S.]. She states she has joined an on-line group of family members of substance abusers. She also has a friend, who lives in the Interior, who she has regular contact with, who has a daughter who abuses substances, and they provide each other mutual support. She has a second son, [C.], age 27, who she has had no contact with over the past four years. He had stated to her and her husband that he was very tired of all the drama around how they interacted with his brother, [K.]. [C.] lives in [Alberta] and has three children who she has had no contact with. She states she has dealt with this issue, but still feels sad at certain times, particularly on his birthday and around Christmas. In reviewing her past psychiatric history, she stated she experienced stress and anxiety related to her son, [K.'s], behaviour and substance abuse. She stated even in kindergarten she would frequently get calls from the school regarding his behaviour. At the time his substance abuse increased in intensity, the family was living in Alberta. At that time she was referred to and saw a psychologist. She was treated with Ativan, or Iorazepam, in the past for anxiety. This woman has a prior history of anxiety. She has been under significant stress in recent years, the primary cause of this being her son, [K.'s], substance abuse and dependence and resultant

homelessness. Over the years since he was a child, he exhibited behaviour difficulties, initially in school, and more recently in the community. He is currently homeless and has outstanding criminal charges. As a result of her son's inability to care for his child, she and her husband have had to assume a parental role to their grandchild. They have had this child in their custody over the past year. Another factor contributing to her psychological distress is her being alienated from her other son and having no contact with her three grandchildren. I should note she has a past history of having been in an abusive relationship at the age of 16. She has a past history of having received counselling and having been placed on anxiolytic medication, the latter secondary to the psychosocial stress she experienced with regard to her son's substance abuse problem. On a positive note, she is close to her parents and very close to her mother. She has been in a stable relationship with her husband over many years. [144] In cross-examination, Dr. O'Breasail was asked about Dr. Solomons' critique. He elaborated on his written opinion that Ms. Nadeau was at increased risk of developing psychological problems if exposed to a major traumatic event such as the Accident: Q So the other major source of her anxiety is her son, [K.], isn't it. A Well, no I wouldn't quite accept that. I think

that's a bit stress in her life, as we indicated earlier. It's an ongoing, it has been there for an extended period. I believe the anxiety increased significantly following the motor vehicle accident as part of the adjustment disorder, the anxiety and depression. There are specific types of anxiety that were worse, such as driving anxiety, which is generalized as well. She had anxiety in other situations. So it's not just that she's anxious over her son, I mean I believe that's part of what is going on for sure. Q Okay. Paragraph 60, I think I understand an answer to that now after giving your full evidence today but I just want to make sure. Paragraph 60 on page 13 [as read in]: He did not comment on any psychiatric difficulties associated with Ms. Nadeau's sons and their families. A Well I would disagree with that. Q Okay. A I think it's within the body of my report, I identified the stress associated with the son, the issue regarding her son with the substance abuse and the issue with her having to assume responsibility for her grandchild, as well as her other son having no contact with him so I certainly view that as being a stress in her life and I did then and I still do. Q Okay, I think the dispute between the two, and I don't want to get between the fight in that sense is on the comment. I mean you did certainly note them -- A Yes. Q -- but I think, and I don't want to

[indiscernible] what Dr. Solomon is really saying, I think it is a criticism, you didn't comment on them in the fact that they accounted for a disorder themselves. A I don't believe they account for a disorder. Maybe I said that earlier. What I want to clarify that is I believe that they caused significant stress in her life and at times, high levels of anxiety that may at times have reached the level of a disorder, but not necessarily all the time. I believe it was a stressful situation in her life that was ongoing. But she, I understand, had been on medication at one point so it may be at that point it reached the level of an anxiety disorder as such. [Emphasis added] Conclusion [145] The opinions expressed by Dr. O'Breasail in his report and testimony are clear, candid, objective, without advocacy or argument, and premised on an analysis of facts proven in evidence. I accept his opinions in their entirety. In light of the significant factual inaccuracies underlying Dr. Solomons' evaluation, I am unable to give his opinions any weight. [146] Ms. Nadeau was vulnerable to psychological issues and chronic pain due to her abusive relationship with her first husband and the stressors and anxiety from her relationships with her sons. However, those issues did not result in any ongoing mental health disorder nor did they interfere with her daily function, including her ability to

work and care for her granddaughter. [147] Ms. Nadeau's ongoing mental health issues, as fully described in Dr. O'Breasail's report, leave her with ongoing generalized and likely permanent anxiety associated with driving a vehicle and riding as a passenger. Ms. Nadeau's psychological injury prevents her from driving school buses, causes her to avoid driving a vehicle as much as possible, and causes her significant unease while riding as a passenger. Her psychological injury, physical injuries, and impaired sleep exacerbate each other. Like her physical injuries, Ms. Nadeau's psychological symptoms may improve with certain interventions (such as CBT), but the prospect for full resolution is poor. The eight counselling sessions she participated in following the Accident were helpful but did not provide the requisite relief to allow Ms. Nadeau to continue driving school buses. [148] I accept Dr. O'Breasail's opinion that the Accident was the traumatic event that caused Ms. Nadeau to suffer an Adjustment Disorder which may improve but will likely not resolve. Her psychological injury, which is independent of her physical injuries, both of which were caused by the collision, has resulted in permanent impaired function and vocational impairment: Karim at paras. 103-105. Vocational Consultant [149] Mr. Trevor Lesmeister is a vocational consultant retained on behalf of Mr. Toulmin to

carry out a vocational assessment and provide an opinion concerning job opportunities for Ms. Nadeau beyond her current employment. Mr. Lesmeister holds a master's degree in counselling psychology. As a vocational consultant, he provides a full range of services to individuals suffering from a variety of disabilities including acquired brain injuries, chronic conditions, activity-related strain disorders, orthopedic and soft tissue injuries, neuromuscular skeletal conditions, physical disabilities, and mental health issues. [150] Based upon his in-person assessment (including testing) and his review of medical records and reports, Mr. Lesmeister opined that Ms. Nadeau's opportunities to secure alternate employment would improve if she were assisted in developing a vocational plan: Ms. Nadeau's ability to return to her part-time position as a Bus Driver will be reliant on her achieving sufficient improvement in her current symptoms that are identified by the medical experts. Should she not return to this occupation, there would be alternate employment options for Ms. Nadeau to consider given her employment experience, education, and current abilities and limitations. Ms. Nadeau would broaden her vocational and earning opportunities if she were to participate in a retraining program to expand her employable skills. Given her testing results and current level of education, she

would be most suited for a shorter term, skills-based program. Noting Ms. Nadeau's current symptomatology, limited employment experience, and lack of job searching skills, her abilities to secure and sustain new employment would improve if she were to receive assistance to develop and implement a vocational plan. It would also be beneficial for Ms. Nadeau to seek support from an appropriate professional (e.g., Occupational Therapist) who could evaluate her functional capacities for employment. [151] No opinion from an occupational therapist was tendered into evidence. In my view, the opinions provided by the physiatrists were sufficient to stand in its stead in respect of Ms. Nadeau's functional capacity and need for workplace accommodations from an employer. [152] According to Mr. Lesmeister, the cost of vocational support ranges between $105 and $150 per hour. He estimated 20 to 25 hours of support are necessary to assist Ms. Nadeau. [153] Mr. Lesmeister provided these examples, drawn from WorkBC, of entry level jobs and hourly rates of pay Ms. Nadeau is currently qualified for: store clerk ($12.70); front counter attendant ($12.65); self service gas station attendant ($12.65); telephone sales agent ($13.10); ticket agent ($18.13); and hotel front desk attendant ($15.00). The hourly rates are less than her current pay of $19.55 washing buses. [154] He cautioned however, that

Ms. Nadeau must identify the most appropriate positions within those occupations whose demands fit with her functional abilities. For example, in his testimony he acknowledged that Ms. Nadeau probably could not work in a busier hotel and would be better placed in a quieter motel, with lighter customer traffic, where she could take breaks as needed. [155] He also declined to comment on Ms. Nadeau's capacity to work full- or part-time, but did say she should benefit from any on-the-job supports to improve workplace tolerances. [156] Mr. Lesmeister also said that Ms. Nadeau could broaden her vocational and employment opportunities if she participates in a retraining program to enhance her skills. He identified two colleges in Courtenay. [157] The first is North Island College. It offers the shorter of the two programs. It offers an Office Assistant - Applied Business Technology certificate program that is administered online at hours that suit the participant for a cost of $2,620 including tuition and books. North Island College provides an Accessibility Learning Services office offering academic accommodations, such as extensions to complete assignments or extra time to take tests, for students diagnosed with ongoing health conditions. The curriculum includes developing core computer skills, basic keyboarding, word processing, records management, organization teamwork, and

interpersonal communication skills. According to Mr. Lesmeister, courses can be attended on-line at any time of day that suits Ms. Nadeau's work and family schedule. He thought it should take about a year to complete. [158] The second is Excel Career College. It offers the other program, with in-class courses that may be purchased individually to allow students to customize their own schedule. Classes include Introduction to Technology and Keyboarding and MS Office programs such as Word, Excel, Access, and Outlook. Each course is 20 hours long and costs $285.60 including books and taxes. In addition to computer courses, Excel offers a Business Communications course designed to introduce students to written, verbal, and non-verbal communications relating to office environments. The cost for this course is $1,136.78. [159] With retraining, he suggested that Ms. Nadeau could be qualified to work as a receptionist ($18.00), administrative assistant ($22.00); customer service clerk ($19.85); and reservation agent ($18.13). [160] Based on her test results and current level of education, Mr. Lesmeister recommended that Ms. Nadeau is best suited for the shorter program and an administrative position: Ms. Nadeau would likely broaden her employment options and earning potential if she were to participate in some type of program to develop her transferable skills. Based on her vocational

test results and current level of education (high school), Ms. Nadeau would be most appropriate for shorter-term training (e.g., one year or less) that would provide her with hands-on learning. Given Ms. Nadeau's tested interests and current physical symptoms, she may like to consider administrative programs that would provide her with clerical skills, including a basic familiarity of computers, qualifying her to seek employment in office types of roles. Generally, administrative positions are sedentary in nature which may be a more appropriate fit for Ms. Nadeau given her symptoms are aggravated by the more physical nature of her current cleaning work. Also, office jobs can provide employees regular opportunities to alternate between sitting, standing, and walking. Typically, the ability to change postures during work can assist to manage pain symptoms. Further, should they be required, there are relatively simple on-the-job supports (e.g., supportive chair, sit-stand desk, and the ability to take mini-stretch breaks when needed) that an employer can implement to assist employees to manage their symptoms, subsequently improving their work tolerances. I would defer to the proper expert (e.g., Occupational Therapist) to comment on Ms. Nadeau's specific functional capacities to manage administrative positions, her ability to work on a full-time or part-time basis, and to identify

if there would be any types of accommodations that would improve her capabilities for such work. [161] Mr. Lesmeister's evidence was general, identifying occupations that Ms. Nadeau may be qualified for either now or upon retraining. Mr. Toulmin did not adduce any evidence concerning Ms. Nadeau's current or future employment possibilities (and potential wage rates) in Courtenay or further afield in the Comox Valley (from Mr. Lesmeister or any other witness). In cross-examination, Mr. Lesmeister acknowledged that he did not investigate those opportunities for Ms. Nadeau. He also acknowledged that whatever the nature of her alternate employment, Ms. Nadeau would require an employer willing to accommodate her chronic pain and impaired function. Non-Pecuniary Damages [162] An award for non-pecuniary damages compensates for pain, suffering, loss of enjoyment of life, and loss of amenities. The award is an assessment of all the plaintiff's relevant circumstances: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 263-264. In that case, the Supreme Court of Canada said at para. 89 that a functional approach is taken to quantifying the award, to assessing the cost required to provide an injured plaintiff "with reasonable solace for his misfortune". [163] In assessing the award, courts usually look to other cases for guidance. This step is sometimes referred to as the

comparative or "horizontal" approach: Boyd v. Harris, 2004 BCCA 146 at para. 41; Beaton v. Perkes, 2016 BCSC 2276 at para. 51. [164] In Stapley v. Hejslet, 2006 BCCA 34, which was referred to by counsel in oral argument, the Court of Appeal set out a non-exhaustive list of common factors which influence an award of non-pecuniary damages: [46] The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes: (a) age of the plaintiff; (b) nature of the injury; (c) severity and duration of pain; (d) disability; (e) emotional suffering; and (f) loss or impairment of life; I would add the following factors, although they may arguably be subsumed in the above list: (g impairment of family, marital and social relationships; (h) impairment of physical and mental abilities; (i) loss of lifestyle; and (j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54). [165] Ms. Nadeau and Mr. Toulmin cited a number of case authorities in support of their submissions concerning the appropriate quantum of the award. Ms. Nadeau cited Alafianpour-Esfahani v. Jolliffe, 2017 BCSC 701; Beaton; Evans v. Keill, 2018 BCSC 1651; and Lewis v. Wang, 2020 BCSC 16, in support of her submission that the appropriate range for non-pecuniary damages in her case is

$100,000 to $120,000. Mr. Toulmin cited Piper v. Hassan, 2012 BCSC 189; Redl v. Sellin, 2013 BCSC 581; Jiwani v. Borodi, 2014 BCSC 1164; Peterson v. Verma, 2014 BCSC 2622; Griffioen v. Arnold, 2017 BCSC 490, varied in part 2019 BCCA 83; and Fabian v. Song, 2018 BCSC 762, to support his submission for a lower range of $65,000 to $70,000. [166] In Stapley, Madam Justice Kirkpatrick cautioned against engaging solely in a comparative analysis of the injuries suffered by plaintiffs in prior decisions to those suffered by the plaintiff in the case at bar when assessing an appropriate award. The award must take into account the specific circumstances of the individual: paras. 44-45. [167] I have considered the cases cited by the parties for guidance with that caution in mind. [168] The cases I found to offer the most useful guidance for the case at bar, where Ms. Nadeau suffers from chronic pain and a separate, independent psychological injury are: Alafianpour-Esfahani, Beaton, Evans, Lewis, Griffieon, and Fabian. [169] In Alafianpour-Esfahani, the plaintiff's age was not disclosed in the judgment. The plaintiff was very active with her family prior to the accident. The accident caused soft tissue injuries to her neck, shoulder, and low back with associated fatigue and impaired sleep. The plaintiff suffered from ongoing chronic pain, mild to moderate depression and anxiety. The

plaintiff's prognosis for some improvement of her physical and psychological symptoms was fair. The plaintiff was predisposed to somatization. The accident caused her to experience acute stress which triggered the plaintiff's pathologically reactive nervous system. The accident also significantly adversely impacted all areas of the plaintiff's life, including her relationships, her ability to work, ability to maintain her home, and her recreational activities. She was awarded $120,000. [170] In Beaton, the plaintiff was 52 years old at the time of the accident. She suffered from various functional impairments prior to the collision. She struggled with long-standing issues with her low back which caused her to miss work for eight months and ultimately apply, without success, for a disability pension. Her difficulties with a frozen shoulder resolved prior to the accident. She also sought medical advice for pain in her low back and left knee a few months before the accident. However, the plaintiff's function had improved to the point where she was able to perform all of her work-related functions in her physically demanding job working for a commercial laundry service without any low back or other physical issues before the accident occurred. In the accident, she suffered soft tissue injuries to her neck and upper and mid-back, cervicogenic headaches, and serious and ongoing sleep

disruptions. She lived with chronic pain and depression caused by the accident. The accident diminished the pleasure she got from her work, her home, and her social interactions. There was no reasonable prospect of improvement. She was awarded $110,000. [171] In Evans, the plaintiff, was 34 years old at the time of the accident. She worked as a produce manager for Safeway, which involved both supervisory and physical demanding work (regularly lifting up to 50 pounds frequently). She was also physically active, such as hiking two to three times per week, including the Grouse Grind, and attending yoga. The accident caused soft tissue injuries to the plaintiff's neck, mid and upper back, and trapezius muscles, resulting in ongoing neck pain, headaches, fatigue, weight gain of 30 pounds, depression, and impaired ability to perform her job duties. She became socially withdrawn, resorted to pain medication and alcohol to alleviate her symptoms, suffered two major depressive episodes, and attempted suicide twice. She was diagnosed with myofascial pain and advised to take cervical facet joint block injections to address her headaches. Over the course of two years following the accident, her pain improved by approximately 60%, but plateaued without expectation of further improvement. She was awarded $110,000. [172] In Lewis, the plaintiff was approximately 33 years old at the time of

the accident. She worked as a gemologist until shortly before the accident but was delayed in finding new employment due to her injuries. In the low impact accident, she suffered a whiplash injury to her cervical spine which became chronic. In addition to causing a "new" neck injury, the accident also caused a material worsening of pre-existing problems in her shoulder and back and caused headaches, some anxiety, and sleep disruption. Although she continued to work after the accident, she continued to suffer pain with some frequency. She was awarded $90,000. [173] In Griffeon, the plaintiff was 51 years old at the time of the accident. She was very active prior to the accident, and took part in running and cycling. She suffered soft tissue injuries and pain to her neck, back, and shoulders. She was able to perform many physical activities with some pain within one year of the accident and capable of performing normal physical activities within two years of the accident. The accident also aggravated her pre-existing anxiety (diagnosed as a general mood disorder) for which she was receiving medical treatment at the time of the accident. This led to mild post-traumatic stress disorder, which was further aggravated in a subsequent motor vehicle accident in 2014. With the concurrence of her family doctor, the plaintiff remained off work as a bookkeeper for an auto body shop for just

over two months. Her position was no longer available for her when she sought to return. She was found to be physically fit to return to work 12 months after the first accident but due to her ongoing anxiety and psychological problems was found not to able to return to full-time work for 24 months. She was awarded $75,000. [174] In Fabian, the plaintiff was approximately 40 years old at the time of the accident. The accident caused mild to moderate soft tissue injuries to his neck, back, and shoulder, as well as headaches, nausea, sleep disturbance, and elevated stress and anxiety. The plaintiff's symptoms besides his back pain significantly improved within a year of the accident, although he was found to be sufficiently improved to return to work as a painter four months post-collision, albeit with pain. His psychological issues worsened for a time, and he was diagnosed as suffering from an Adjustment Disorder with depressive mood and Major Depression disorder. Both resolved as he was able to return to work full-time and return to his pre-accident recreational and social activities within two years of the accident. The plaintiff's injuries besides occasional back pain flare-ups had resolved at the time of trial. He was awarded $70,000. [175] Ms. Nadeau was 44 years old when the Accident occurred. The injuries she sustained from the Accident have significantly impacted her

quality of life. She suffers from ongoing chronic pain comprised chiefly of constant low back pain due to a low back injury, which fluctuates with intensity, often as a result of physical activities. Ms. Nadeau's low back pain affects much of her everyday functioning. She also sustained soft tissue injuries to her neck, shoulder, and upper back which have improved over time but have left her with ongoing pain and discomfort. She is unable to enjoy many of her pre-Accident outdoor activities. She suffers periodic sharp pains into her groin. Ms. Nadeau's sleep and mood are also impaired. Her headaches have resolved over time. Ms. Nadeau is not able to drive or ride as a passenger in a motor vehicle without experiencing significant anxiety. She has been diagnosed with a psychological injury independent of her physical injuries and associated chronic pain - an Adjustment Disorder - caused by the Accident. Her chronic pain, impaired sleep, and psychological injury exacerbate each other. [176] The prospect for complete resolution of Ms. Nadeau's symptoms is poor. She may gain mild to moderate improvement in physical function and pain with a directed exercise program. Likewise, intervention through CBT conducted by a psychologist with the requisite experience should help her mental health issues. However, she will continue to be impaired in physical function and mental health for the

remainder of her life. Ms. Nadeau is not capable of returning to her work driving school buses and is only capable of working cleaning school buses on a part time basis (where it is likely that she will continue to work shorter days or miss a day of work from time to time due to her physical symptoms and chronic pain). She will likely require medication indefinitely. [177] I assess an appropriate award for this head of damage at $110,000. Special Damages [178] The only disputed item concerns Ms. Nadeau's claim for cannabis oil, which she said was recommended by her family doctor for pain. According to Ms. Nadeau, the oil provides some pain relief. The claim amount is $560. Mr. Toulmin no longer resists the claim on the basis that it involves an illegal substance but argues that there is no direct support for it in the medical evidence. While I have no hesitation in accepting Ms. Nadeau's evidence concerning its beneficial effects, I agree with Mr. Toulmin that in the absence of medical evidence, the claim has not been established as recoverable. Hence, the award for special damages is the amount agreed upon between the parties of $6,732.18. Wage Loss Introduction [179] Ms. Nadeau has broken down her wage loss claim separately between lost wages as a bus driver and for washing buses. [180] Her evidence as well as that of her employer and her employer's evidence (including its

payroll records) clearly establishes that Ms. Nadeau has lost past earnings and future earnings opportunities with First Student driving and cleaning school buses. [181] Ms. Nadeau was not paid for driving school buses when schools were not in session, e.g., spring and winter breaks, summer months, and statutory holidays. Work washing buses is available to Ms. Nadeau all year round, although generally not during the December holiday break. She was paid 5.25 hours per day when driving school buses during the school year. [182] Her hours varied for cleaning school buses. Although there was the opportunity for Ms. Nadeau to work five hours per day cleaning school buses during the break in the day from driving, due to First Student's varying budget constraints, she generally worked three hours per day cleaning school buses, and at times less and at times more. If she worked more than three hours per day cleaning while also driving a school bus, Ms. Nadeau could trigger overtime pay, which would at times strain First Student's budget. [183] There were times where First Student prohibited employees from working overtime hours at all. However, when school was not in session and Ms. Nadeau was not driving school buses, she could work up to five hours per day as no overtime was involved. [184] In the summer of 2018, First Student's contract to drive and clean school buses expanded to

include 14 more school buses, which would have allowed Ms. Nadeau the opportunity to work 5.25 hours per day driving buses and five hours per day cleaning them, five days per week. Ms. Nadeau was offered more hours cleaning buses at that time but declined on account of her physical function and pain. As previously mentioned, following the Accident, Ms. Nadeau was forced to reduce her hours washing buses to Monday to Wednesday, up to five hours each day. [185] As a bus driver, between January 2016 and mid-June 2016, when Ms. Nadeau stopped driving school buses, her hourly rate of pay was $18.64 plus $1.15 per hour in lieu of benefits. Her employer confirmed that had Ms. Nadeau continued to work as a bus driver, her hourly rate would have increased over time to the end of September 2018 to $19.20 plus $1.15 per hour in lieu of benefits. Starting in October 2018, her hourly wage would have increased to $21.00 (and included health benefits since First Student decided to include them in the hourly rate of pay). From September 2019 to present, her pay as a bus driver would be $21.48. [186] For washing buses, as at January 2016, Ms. Nadeau was paid daily $15.87 per hour for the first three hours worked ($14.72 per hour plus $1.15 per hour in lieu of benefits,) and then $23.28 ($22.13 plus $1.15 in lieu) for additional two hours considered by her employer to be overtime. Her wage

increased in September 2016 to $19.17 (including in lieu pay) for the first three hours and $22.91 for overtime. She received an additional increase in October 2018 of $19.55 and $29.33 (for any overtime) and is currently paid those amounts. [187] She is also paid 6% vacation pay on her earned wages plus statutory holiday pay which her employer said was approximately $138 per statutory day for each of 10 days. [188] Ms. Nadeau's income tax returns, extending back to 2010, demonstrate a consistent work history. Past Wage Loss [189] I reject Mr. Toulmin's submission that the past wage loss claim is limited to lost income between January and June 2016 because her subsequent reduced income is due to her family responsibilities, notably caring for her granddaughter. [190] Ms. Nadeau has established that absent the Accident, she would have continued to work driving and cleaning school buses for First Student, work she was very good at and enjoyed very much. The unchallenged evidence from the owner of the daycare attended by the Nadeaus' granddaughter confirms that the daycare can readily accommodate Ms. Nadeau's early morning driving shifts. The daycare is open until 5:30 p.m. and can also accommodate Ms. Nadeau's driving schedule. Mr. Nadeau is also usually home from work between 2:30 and 3:00 p.m. and is available to pick up their granddaughter if necessary. The unchallenged

evidence of the Nadeaus' neighbor, who looks after young children, established that she has and would continue to be able to assist looking after the Nadeaus' granddaughter if needed, including taking her to daycare in the mornings when necessary. [191] Detailed evidence from First Student's manager established driving hours, statutory holiday pay, vacation pay, and pay in lieu of benefits lost by Ms. Nadeau as a result of her injuries caused by the Accident. Additional evidence from First Student, admitted during closing argument by consent, establishes that in light of its existing contracts with school districts, First Student's bus drivers will continue to be paid to the end of June 2020 despite school closures arising from the COVID-19 pandemic. All bus washing work, however, terminated in mid-March, such that only 10 working days were available in that month. [192] Ms. Nadeau has established a claim for past wage loss driving school buses to April 30, 2020, predicated on 5.25 hours per day when schools were in session, less the one month's time she was away from work when she and her husband took custody of their granddaughter (which I asses to account for 100 hours). The loss to April 30, 2020 is $89,183 (rounded), calculated as follows: 2016: $16,067 2017: $19,500 2018: $22,476 2019: $22,814 2020: $8,326 [193] Assessing Ms. Nadeau's claim for past wage loss for cleaning

buses is not a linear analysis, since there were days prior to the Accident where she worked less than three hours per day and some where she worked more, and some where she worked more and was paid overtime. For example, in the fall and early winter of 2015 she worked 20 hours per week and then worked extra hours in the two days she washed buses in early January 2016. Also, there were days in the summer months and other times when not driving a school bus where Ms. Nadeau did not work five hours per day cleaning buses. She took some unpaid vacation time in summer 2015 and it is reasonable to expect that she would continue to take vacation time during the summer months, especially with her granddaughter now living with her. When First Student's contract expanded to include more buses in summer 2018, Ms. Nadeau would have had the opportunity to work five hours per day cleaning buses even when also driving. [194] Taking those factors into account, and upon reviewing Ms. Nadeau's payroll records and considering the evidence of First Student's manager, I am satisfied that an average of three hours per day at five days per week, less what she was in fact paid, is an appropriate amount upon which to assess the past wage loss award for lost wages cleaning buses. [195] Accordingly, I assess Ms. Nadeau's past wage loss claim for washing school buses to be a total loss of $22,407

(rounded), calculated as follows: 2016 and 2017: $4,600 for each year 2018: $6,000 2019: $6,500 2020: $707 [196] Ms. Nadeau's total past wage loss claim to April 30, 2020 is $111,590. Future Wage Loss Claim [197] To be entitled to an award of this head of damage, Ms. Nadeau must establish a real and substantial possibility of a future event leading to an income loss: Perren v. Lalari, 2010 BCCA 140. In Perren, the Court of Appeal discussed the test and the two methods of assessing the loss - earnings approach and loss of capital asset - as follows: [30] Having reviewed all of these cases, I conclude that none of them are inconsistent with the basic principles articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R.

229. These principles are: 1. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation [Athey at para. 27], and 2. It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made [Andrews at 251]. [31] Furthermore, I conclude that there is no conflict between Steward and the earlier judgment in Pallos. As mentioned earlier, Pallos is not authority for the proposition that mere speculation of future loss of earning capacity is sufficient to justify an award for damages for loss of future earning capacity. [32] A plaintiff must always prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that there is a real and substantial possibility of a future event leading to an income loss. If the plaintiff discharges that burden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity, either on an earnings approach, as in Steenblok, or a capital asset approach, as in Brown. The former approach will be more useful when the loss is more easily measurable, as it was in Steenblok. The latter approach will be more useful when the loss is not as easily measurable, as in Pallos and Romanchych. 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. That was the case in both Pallos and Parypa. But, as Donald J.A. said in Steward, an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss. [Emphasis in original] [198] In Schenker v. Scott, 2014 BCCA 203, after citing Perren and other like cases, the Court of Appeal reiterated that assessing the award is not simply a calculation of loss but the result of careful weighing of all of the evidence and substantial possibilities: [50] The principles specific to assessing an award for loss of future earning capacity are well settled: see, for example, Rosvold v. Dunlop, 2001 BCCA 1, and Perren v. Lalari, 2010 BCCA 140. These principles were recently canvassed by this Court in Meghji v. British Columbia (Ministry of Transportation and Highways), 2014 BCCA 105, where Smith and Willcock JJ.A. writing for the Court said: (ii) The approach to assessing loss of future earning capacity [81] It is correct to say that an award of damages under this head is a result of the careful weighing of all the evidence and the application of considered judgment to that evidence. It is not a calculation: Mulholland v. Riley Estate (1995), 1995 CanLII 1971 (BCCA), 12 B.C.L.R. (3d) 248 at para. 43, [1995] B.C.J. No. 1823 (C.A.). Because the

court is required to take into account all substantial possibilities it is necessary to use careful judgment in weighing those possibilities. In order to ensure that all reasonable substantial possibilities are taken into account, however, the conventional approach is that described in Lines [2009 BCCA 106]. In that case, at para. 57, Saunders J.A. held: There are two major components to an assessment of loss of future earning capacity. One is the general level of earning thought by the trial judge to be realistically achievable by plaintiff but for the accident, taking into account the plaintiff's intentions and factors that weigh both in favor of and against that achievement, and the other is the projection of that earning level to the plaintiff's working life, taking into account the positive and negative vagaries of life. From these two major components must be applied an analysis that produces a present value of the loss, adjusted for all appropriate contingencies. [82] The standard of proof to be applied when evaluating hypothetical events such as loss of future earnings, is simple probability rather than the balance of probabilities: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102. [53] Recent cases have reconfirmed the importance of relating findings of fact to the assessment of damages: see, for example, Morgan v. Galbraith, 2013 BCCA 305 at para. 56, and Jurczak v. Mauro, 2013 BCCA 507 at para.

29. Mathematical, statistical or economic evidence, where available, may well be of assistance in assessing damages. As Madam Justice Stromberg-Stein points out in Jurczak: [35] Quantifying a loss may be aided by some mathematical calculation, but there is no particular formula. As stated in Rosvold v. Dunlop, 2001 BCCA 1: [8] The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff's capacity to earn income is an asset which has been taken away. Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider. [11] The task of the court is to assess damages, not to calculate them according to some mathematical formula. Once impairment of a plaintiff's earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely

future of the plaintiff if the accident had not happened with the plaintiff's likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry. The overall fairness and reasonableness of the award must be considered taking into account all the evidence. [18] The assessment of damages is a matter of judgment, not calculation. [Emphasis added by Stromberg-Stein J.A.] [36] This process is "an assessment rather than a calculation" and "many different contingencies must be reflected in such an award": Barnes v. Richardson, 2010 BCCA 116 at para. 18. "Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable": Parypa v. Wickware, supra, at para. 70. [37] With that said, if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them. For example, in Henry v. Zenith (1993), 1993 CanLII 1434 (BCCA), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this Court held that a trial judge's failure to consider an economist's projections of a plaintiff's lost future earning capacity

contributed to the judge committing an error in principle, which "resulted in a wholly erroneous estimate of the damages". [Emphasis in original] [199] Ms. Nadeau's position is that she will be restricted to less than full-time employment for the long term, and suffer a corresponding decrease in her earning potential. I agree. Ms. Nadeau has established that her injuries, both physical and psychological, will impair her ability to earn income as a bus driver and bus washer and her ability to find alternate employment is predicated on an accommodating employer. I reject Mr. Toulmin's primary position that Ms. Nadeau has failed to establish a future income loss claim and his submission that any limitations to her future work capacity are limited solely by her family responsibilities. [200] In an alternative submission, Mr. Toulmin submits that if Ms. Nadeau is entitled to an award, it should be assessed on the loss of a capital asset approach, assessed at a loss of one year's earnings of $45,000 ($25,000 premised for bus driving and $20,000 for bus washing). [201] Although Ms. Nadeau's circumstances clearly engage the factors to consider in the loss of capital asset approach as discussed in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), cited with approval in Perrin at para. 31, an assessment predicated on a number of years of lost income, referred to as the multiplier

approach (which typically does not exceed four to five years' lost income), does not appropriately reflect Ms. Nadeau's actual loss in this case and would result in significant unfairness. [202] I agree with Ms. Nadeau's submission that her claim should be assessed upon the earnings approach, present valued, based on expert evidence adduced in her case from an economist, taking into account positive and negative contingencies. Ms. Nadeau's 10-year work history with First Student and evidence from her First Student's local manager provide a ready, accurate, and appropriate basis in which to engage the earnings approach. [203] As a first step in her analysis of the award, Ms. Nadeau identified her without-accident potential earnings for bus driving and bus washing up to a probable date of retirement for each occupation. In her closing written submissions, she made these compelling observations: 1. There is value to job-attachment, and the Plaintiff has been with her present employer now for 10 years. She is being accommodated by that employer, reflective of her ongoing chronic pain and the at-work limitations that occasions; 2. [discussed below].

3. The sampling of entry level jobs that Mr. Lesmeister describes, pay considerably less than what the Plaintiff is making presently as a bus washer ($19.55) and typically have a period of probation, and are commonly part-time positions; 4. Certain of these jobs the Plaintiff has done in the past, and particularly in regards clerk in a retail or convenience store are not light duty. The alternate scenario identified by Mr. Lesmeister was that the Plaintiff consider improving her education/retrain for a period up to one year and seek employment with a newly acquired skill set. Further, it must be remembered that the Plaintiff will forever experience chronic pain which will impact her vocational functioning. Other practical barriers, such as age, no prior similar work history, also presents. [204] I also agree with Ms. Nadeau's second point in her written submissions: "The Plaintiff's test scores on the range of testing she underwent with Mr. Lesmeister are frankly not impressive". Ms. Nadeau's test results reported by Mr. Lesmeister are summarized below. Mr. Lesmeister's percentile score reflects a ranking of the working population. [205] For Aptitude testing, she scored in the average range for Verbal Aptitude and Spatial Aptitude (both 50th percentile); low range for General Ability (25th percentile) and Manual Dexterity (23rd percentile); and very low range for Numerical

Aptitude and Perceptual Aptitude (both 10th percentile). [206] For Achievement testing, Ms. Nadeau scored at the 50th percentile for Word Reading (which measures word decoding through word recognition), but otherwise below 50 for Math Computation (42), Reading (39), Spelling (37), Sentence Comprehension (32), and Reading Comprehension (14). [207] Her intelligence testing scores were low for Verbal (21st percentile) and Nonverbal (25th percentile). [208] Yet, Ms. Nadeau completed her high school equivalency with high marks (As and Bs), suggesting an ability to excel at a time she was not suffering from chronic pain. [209] Ms. Nadeau presented the following calculations of net present value of her earning potential, based on evidence from payroll records, her employer, and the economist: Dealing first with her loss of income as a bus driver, and accepting that she will for the balance of her working life be unable to return to that job, reference is had to the Past Wage Loss Claim chart accompanying this submission. Her earnings as bus driver in 2019, based upon the evidence of Ms. Palmer and the Exhibits, is $22,800 (rounded). The evidence establishes that the Plaintiff would likely have worked into her late 60's, possibly into her early 70's, absent the accident. Accordingly, the following is generated: a) $22,800 x 14.235 (present value to age 65) = $325,000 (rounded); b)

$22,800 x 15.688 (to age 67) = $358,000 (rounded); c) $22,800 x 17.748 (to age 70) = $405,000 (rounded). (see Exhibit 2, report of Associated Economic Consultants) Potential losses from bus washing: an analysis of Plaintiff's earnings as a bus washer from the date of loss to the date of trial shows that typically the Plaintiff did not work up to 3 hours per day, 15 hours per week. It is submitted that the primary reason for that was because the Plaintiff was physically unable to achieve even those hours on a sustained basis. Reference is had to the evidence of the Plaintiff, Dorothy Palmer, Joseph Corrigan and Mark Nadeau. From that, if the Court accepts that absent the accident the Plaintiff would not have worked more than 3 hours per day (15 hours/week) in any event, then analysing her actual hours worked historically, the short fall is between $4,600 per year up to $6,500 per year. The present value of that range of loss to her age 60 is: a) @ $4,600 x 10.800 = $49,000 (rounded); b) @ to her age 65: $4.600 x 14,600 = $67,000. At the high end of the range, the calculations are as follows: a) @ $6,500 x 10.800 = $70,000; b) @ $6,500 x 14.600 = $95,000. [210] The high end of the range for bus washing discussed above assumes lost wages based on four hours per day. [211] After applying a discount of 25% for contingencies, Ms. Nadeau submitted her award should be assessed between

$275,000 and $325,000. [212] I find that absent the Accident, Ms. Nadeau would have worked driving school buses into her early 70s so long as she was capable. It was an occupation that she derived great enjoyment and looked forward to working at into her senior years. She was well respected by First Student for her bus driving skills, personality, and work ethic. I am also satisfied and find that First Student would have continued to hire her for bus driving into her early 70s (as it has at least one other driver in that age range), so long as she was capable of doing her job. [213] Other than a $6,000 RRSP with Mr. Nadeau's employer, the Nadeaus have no savings and live paycheque to paycheque. Having regard for the Nadeaus' financial circumstances and ongoing need for income, I find on a balance of probabilities Ms. Nadeau would have continued to work as long as she possibly could past the date on which Mr. Nadeau, who is 10 years older, retires. [214] Given the much more physically demanding work of bus cleaning, however, I find that Ms. Nadeau would have in all probability no longer been able to carry on with that occupation beyond her early 60s, especially given her occasional flares from her prior motor vehicle accident and the aches in her hands she is bothered with from time to time. [215] Accordingly, in my analysis of Ms. Nadeau's future wage loss award, I view it

appropriate to assess it as if she retired from bus driving at the earliest at age 67 and more likely in her early 70s and bus cleaning at 60, based on the lost earnings approach. I also find that absent the Accident, Ms. Nadeau would have likely secured part-time work to replace her bus washing income once she was no longer able to work at that occupation or decided to retire from it. [216] The award should also reflect positive and negative contingencies. Positive contingencies include potential increases in pay over time, continued opportunities to work five hours per day cleaning buses during the school year, and the reduced pressure on Ms. Nadeau to ensure suitable daycare arrangements as her granddaughter enters grade school and especially after Mr. Nadeau retires. Negative contingencies include possible reduction in available working hours over time (by volition or at the instance of her employer in the event of diminished work opportunities), the possibility of early retirement (e.g., due to physical or health issues), time away from work due to illness or for vacation or to care for her granddaughter, the prospect for mild to moderate improvement in her physical symptoms to allow her to work more hours bus washing, and the possibility to secure other alternate part-time or full-time work after she completes the shorter of the two retraining programs identified by Mr.

Lesmeister. Another contingency is the possibility of improved psychological symptoms from treatment such as CBT, which in turn may reduce Ms. Nadeau's driving anxiety, allowing her to drive more frequently to new, alternate employment. That said, I agree with Ms. Nadeau and find that even with a positive outcome of CBT, she will not be able to return to bus driving. Another negative contingency is the uncertainty surrounding the length of time before Ms. Nadeau is able to return to work bus washing due to the current COVID-19 restrictions. [217] However, the award must also take into account that Ms. Nadeau needs to find an employer in the Comox Valley located within ready commuting distance while she attempts to address her driving anxiety through CBT and to permit her to be home in the evenings to spend time with her granddaughter (as would be the case if she was driving school buses). Any such employer must be prepared to accommodate her chronic pain and functional impairments as outlined by the physiatrists. The award also needs to take into account that hourly rates of pay for many of the occupations identified by Mr. Lesmeister are not commensurate with what Ms. Nadeau would be paid bus driving and is currently being paid for bus washing. It also needs to take into account that what I find to be the probability that absent the Accident, Ms. Nadeau would look to find some

part-time replacement work once she stopped cleaning buses, in order to maintain her family's income. [218] I accept Ms. Nadeau's submission I should also take into account the continued accommodation shown to her by First Student, the positive impact upon her mental health of her emotional attachment to First Student, that she should be afforded a reasonable time to find alternate employment once she finishes a retraining program, and the absence of any evidence concerning the prospects for Ms. Nadeau to obtain suitable alternate employment in the Comox Valley. [219] Nonetheless, having regard to the Nadeaus' financial circumstances and Ms. Nadeau's strong work ethic, I find that Ms. Nadeau will at some point actively seek to secure alternate part-time employment to replace or augment her bus washing wages once she completes a retraining program. If she secures such employment, I am satisfied that her rate of pay will be entry-level wages, starting below what she is currently earning as a bus washer and would be earning now if she was working as a bus driver. [220] In all of the circumstances, I have determined that a higher deduction for negative contingencies suggested by Ms. Nadeau is warranted. [221] In the absence of any evidence concerning jobs potentially available for Ms. Nadeau in the Comox Valley, I am unable to assess the award for this head of damage premised on a

calculation of the present value of the difference between the hourly wages Ms. Nadeau would have earned driving and washing school buses absent the Accident and the hourly wage(s) for jobs identified by Mr. Lesmeister that may currently be available to her or may be available when she completes the shorter college course. [222] I therefore assess an appropriate award for this head of damage based on the present value of Ms. Nadeau's lost future earnings as a bus driver to age 70 ($405,000) and bus washing to age 60 ($49,000) less a contingency deduction of 40%, for a total of $272,400. Cost of Future Care [223] Mr. Toulmin agrees to nearly all of Ms. Nadeau's claim for costs of future care, as follows. [224] First, a further 18 sessions with a kinesiologist or physiotherapist to build an independent exercise program. The claim is presented based on costs set out in Schedule 3, Part 7 of the Insurance (Vehicle) Act Regulations - $1,400. [225] Second, adjunctive physiotherapy or massage therapy up to six times per year for the next two years at $80 per session - $1,600. [226] Third, one to two sessions with an occupational therapist, including an ergonomic assessment, to optimize function - $200. [227] Fourth, the present value of $615 for the annual cost of prescription medication and over-the-counter analgesics and anti-inflammatory medication to age 65, based on the

economist's multiplier to that age of $10,707 per $1,000 - $6,580.50. [228] However, in my opinion, limiting this particular care item to age 65 is inappropriate in view of the opinions of the physiatrists regarding the permanent nature of Ms. Nadeau's chronic pain for the remainder of her life. An award for the cost of future care is for reasonably necessary costs based on medical advice and the need to preserve and promote a plaintiff's physical and mental health: Peters v. Ortner, 2013 BCSC 1861 at para.

141. The present value of the claim to age 70 increases by just over $3,200 to $9,730 (rounded). [229] Assessing an award for future care costs is an assessment, not a precise accounting exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para.

21. At the same time, I must also take into account the possibility of mild to moderate improvement in symptoms and potential corresponding reduction for the same quantity of prescription and over-the-counter medication. I assess an appropriate amount for the award for future costs of medication for the remainder of Ms. Nadeau's life at $5,000 in addition to the sum of $6,580.50 Mr. Toulmin is prepared to pay. [230] Fifth, Mr. Toulmin acknowledges that If Ms. Nadeau is found to suffer from a mental health injury caused by the Accident, which I have, he agrees to pay for her claim for treatment of psychological intervention, such as CBT - $6,000. [231] I agree that Ms. Nadeau has established, based on the medical evidence, the expenses she has claimed are reasonably necessary to preserve and promote her physical and mental health: Peters at para. 141. [232] In addition to what she has claimed, Mr. Toulmin submits that Ms. Nadeau should take the shorter of the two retraining programs suggested by Mr. Lesmeister and will pay the cost of tuition - $2,620 - as an additional cost of future care item. I have found this to be an expense that Ms. Nadeau should undertake in an effort to enhance her vocational opportunities. [233] The total award for cost of future care is $23,400.50. Summary [234] Ms. Nadeau is awarded the total amount of $524,122.68, comprised of: (a) non-pecuniary

damages - $110,000; (b) special damages - $6,732.18; (c) past wage loss - $111,590; (d) future wage loss - $272,400; and (e) cost of future care - $23,400.50. [235] In addition, Ms. Nadeau is entitled to court order interest and an award for applicable tax gross up as agreed between the parties. Failing agreement, the parties may return before me to make further submissions concerning either or both issues. [236] Subject to any matter of which I am not aware, Ms. Nadeau is entitled to her costs. "Walker J." ______ The Honourable Mr. Justice Walker