Roth v. Hes

2015 BCSC 161 Roth v. Hes

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Roth v. Hes, 2015 BCSC 161 Date: 20150205 Docket: 22767 Registry: Cranbrook Between: Tracey Kathleen Roth Plaintiff And Joshua Hes and Cullen Diesel Power Ltd. and GE Vel Company carrying on business as GE Vehicle and Equipment Leasing Defendants Corrected Judgment: The text of the judgment was corrected on the front page on February 11, 2015 Before: The Honourable Mr. Justice Bowden Reasons for Judgment Counsel for the Plaintiff: W.T. Rogers J. Mitchell Counsel for the Defendants: D.G. Graves Place and Date of Trial: Cranbrook, B.C. September 23-26, 29-30; and October 1-3, 2014 Place and Date of Judgment: Cranbrook, B.C. February 5, 2015 I. Introduction [1] The plaintiff was injured in a motor vehicle collision on February 23, 2011. Liability is admitted. The defendants also admit that as a result of the accident the plaintiff continues to suffer the effects of soft tissue injuries to her neck and shoulders, but dispute the extent of the injuries caused by the accident and the damages claimed by the plaintiff. II. General Background [2] The plaintiff, Tracey Roth, was born on November 30, 1973, and raised in Cranbrook, British Columbia. Currently, she lives nearby in Wycliffe, on a small acreage with her husband, Marcus Roth. They were married in 1994 and have a daughter who was born in 1993 and a son who was born in 1995. [3]

Since acquiring the acreage, the plaintiff and her husband have built a house, a woodworking shop, a cold storage shed and animal enclosures. Marcus Roth is a certified welder and metal fabricator, as well as a skilled carpenter and furniture maker. They have also developed a large garden. Over the years they have raised animals for personal consumption and as pets. They have shared the work of maintaining their property and caring for their animals. [4] The plaintiff has been primarily responsible for housework including the preparation of meals, cleaning and laundry. III. Plaintiff's Work History [5] The plaintiff completed a hairdressing course in 1998 and was able to provide hairdressing services from her home occasionally while she raised her children. From 1999 until 2005 she worked as a hairdresser in her home and spent one year at a salon in Cranbrook. [6] In 2001 the plaintiff began working occasionally on a safety watch at a local pulp mill when it was shut down for short periods each year. [7] She and her husband, together with sub-contractors and some friends, began the construction of their house in 2006. They moved in sometime in 2006 but did not complete the house until 2010. [8] From 2005 until 2006 the plaintiff worked at the Heritage Inn as a waitress to help pay down a bank loan she and her husband obtained to pay for the construction of their house. [9] In

2007 the plaintiff worked for about two months as a sales associate at Home Depot. Although they had built a hairdressing salon in their house, the plaintiff says that she lost her interest in hairdressing as a career about this time. She decided to pursue a career in health care and enrolled in an on-line program to become a care aide or nursing assistant. She completed this program in May 2008 and began working part time as a casual care aide at Joseph Creek Care Village and, for the month of September 2008, with the Interior Health Authority at the Kimberley Special Care Home. [10] She left her position at Joseph Creek in January 2009. Although she had been offered a full-time position there, personality differences arose with other staff members. She then moved into the assisted living side of the Joseph Creek facility and worked as a casual employee until she accepted a temporary part-time position in August 2009 for 25-28 hours a week. She resigned from that position in October 2009. [11] In November 2009 the plaintiff started working on a casual basis at the Pioneer Lodge residential home and continued with some casual employment as a care-aide with Interior Health. Her casual employment at Pioneer Lodge ended in March 2010. She took six weeks off from any work in June and July of 2010 while her sister-in-law visited. In September 2010 she told her employer that she did

not want to work nights or weekends. She said that was to allow her to spend more time with her 15-year-old son. She continued her casual work with Interior Health until November 2010, along with some occasional work on the safety watch at the pulp mill. [12] On November 8, 2010, the plaintiff started working on a relief part-time basis as a recreation assistant at the F.W. Green Memorial Home. She said that her goal was to accumulate enough hours to qualify for a full-time position. She only had a few weeks remaining at that job when the accident occurred. At the time of the accident she had accumulated about 2.000 hours towards her seniority with the Interior Health Authority. To qualify for a full-time position in 2011, she needed to accumulate 4,000 hours. To qualify today, the required hours would be closer to 3,000. [13] Around the time the accident occurred, the plaintiff and her husband testified that they were planning to start a custom furniture business with Garry and Joanne Jaggard. They considered purchasing a business known as Tree Fever Turnings which was owned by Marcus Roth's employer. A draft purchase agreement was prepared but rejected by the owner. Marcus Roth and Garry Jaggard then considered other business possibilities. They say that the plan involved Marcus Roth working as a furniture maker and Garry Jaggard providing the financing and business

knowledge. The plaintiff's role was to provide some income through her employment with Interior Health so that she and her husband could eventually purchase one half of the business. The plaintiff says that these plans never came to fruition because of the accident. IV. Plaintiff's Pre-Accident Condition [14] The plaintiff experienced some problems with her lower back and her right knee prior to the accident. [15] She visited her family doctor in 2002 and again in 2003 and 2004 complaining of back discomfort. From 2006 until 2008 the plaintiff visited her chiropractor on a number of occasions for back discomfort. [16] In February 2008 the plaintiff attended her chiropractor, complaining that she could barely walk, with shooting pain and no strength in her back. She also described burning pain in her upper back. [17] The plaintiff attended her family doctor in June 2008 and January 2010 for treatment of her back pain. [18] The plaintiff reported to the occupational therapist, Jeanette Lee, that she had lower back problems from time to time and had to be careful lifting. She said that she had experienced back pain and spasms during the past 10 years from work as a care aide, which required such things as transferring patients, but said that she would "tough it out." [19] The plaintiff also reported to Dr. Morley, a psychologist, that her work as a care aide was taxing on her

back, particularly when she had to transfer patients. [20] The plaintiff injured her right knee in 2008 when she fell directly on to the patella. She complained of right knee pain to her family doctor on January 25, 2010. A subsequent x-ray of the knee showed degenerative joint disease. She also reported frequent right knee pain to Jeanette Lee and said she had difficulty fully extending the joint. She made similar complaints to Dr. Morley but said she did not miss work or avoid activity because of that and managed by "toughing it out." [21] Prior to the accident the plaintiff testified that she and her husband enjoyed many outdoor recreational activities such as hiking, hunting, archery, camping and riding motor bikes and ATVs. V. The Accident [22] The accident occurred in the city of Cranbrook at the intersection of 24th Avenue and 17th Street. The plaintiff was driving her 2008 Pontiac and travelling southbound on 24th Avenue when a delivery truck, driven by the defendant, Joshua Hes, failed to stop at a stop sign on 17th Street. The plaintiff's vehicle collided with the truck. As a result of the damage to the plaintiff's vehicle, it was written off. VI. Plaintiff's Post-Accident Condition [23] Immediately following the accident the plaintiff experienced significant pain and was given morphine at the hospital. She was discharged from the hospital during the evening on the

day of the accident, given a prescription for Tylenol 3, referred for physiotherapy, and advised not to work. Except for medical appointments she remained in her home for the next week. She testified that during that time she experienced headaches, as well as pain in her neck, shoulder, chest, lower back, tailbone, right knee, as well as memory and concentration difficulties. [24] She also suffered some bruising. [25] On April 1, 2011, about five weeks after the accident, the plaintiff saw her primary care physician, Dr. Robert Cutler, for the first time. She reported headaches and pain in various areas of her body to Dr. Cutler. He did not record that she made any complaints regarding her tailbone or her right knee. [26] The plaintiff followed Dr. Cutler's recommendation that she participate in a swimming program, and engaged in swimming exercises until October 2011. At that time Ms. Vaughan, an occupational therapist, started the plaintiff on a supervised rehabilitation program including swimming, some gym based exercise and counselling regarding pain management strategies. [27] Since the accident the plaintiff has attended 115 physiotherapy sessions and received a combined 50 massage and chiropractic treatments. [28] By January 2012, the plaintiff appeared to be benefiting from the rehabilitation program but still complained of some pain in various areas of her body. She

reported to Ms. Vaughan that her headaches were less frequent, her neck pain was less intense and less frequent, her sleep was better and she was doing most activities but avoiding bigger cleaning projects. At that stage she said that she could be active for 5 to 6 hours of light activity before taking a break. She travelled to Jamaica for a vacation and snorkelled while there. She said that she experienced pain on the trip to Jamaica. I also note that the plaintiff travelled to Switzerland with her husband in March 2013 when his mother was ill. [29] The plaintiff remained off work for about 11 months after the accident. [30] In February 2012 the plaintiff commenced a graduated return to work program ("GRTW") at the F.W. Greene Memorial Home which was coordinated by Ms. Vaughan. F.W. Greene Memorial Home is a care facility for individuals who are not able to stay at their home without assistance. By May 4, 2012, Ms. Vaughan was of the view that the plaintiff had the ability to work up to full time hours in the program and complete paid shifts; however, the plaintiff discontinued her participation in it. [31] There is conflicting evidence as to why the plaintiff discontinued the GRTW. Ms. Sue Bulloch, a vocational rehabilitation consultant who managed the program on behalf of ICBC, testified. [32] Ms. Bulloch said that she met with the plaintiff and Ms. Vaughan on April 26,

2012, and they agreed upon a plan to move the plaintiff from supernumerary status back to casual status. That plan was described in a letter from Ms. Bulloch to Dr. Cutler dated April 27, 2012 (Exhibit 16). [33] Subsequently, Dr. Cutler wrote to Ms. Bulloch withdrawing support for the GRTW plan as described in her letter. In that letter, which is part of Exhibit 13, Dr. Cutler noted that the decision to participate in the plan would have to be made by Ms. Roth "both from a financial and legal perspective". Ms. Bulloch and Ms. Vaughan were both surprised by his position. Based on a telephone conversation with the plaintiff on May 7, which is referred to in her letter to Dr. Cutler dated May 8, 2012, Ms. Bulloch said that the plaintiff was also surprised by Dr. Cutler's reaction and felt strongly that the plan was appropriate and that she continue with it. [34] In cross-examination, the plaintiff denied that she had told Ms. Bulloch that she was in support of the GRTW plan or that she felt able to return to work as a care aide in any manner. [35] No reason was suggested why Ms. Bulloch, as an independent consultant, would not be truthful about her conversation with the plaintiff on May 7. However, at a time when, according to Ms. Vaughan, the plaintiff appeared to be ready to take on casual care aide work, much as she had done prior to the accident, the plaintiff asserts that she

left her care aide position because she had attempted work for two days and could not handle it. She offers that as the reason for her agreement with Dr. Cutler's view that she was not able to work as a care aide. [36] On May 4, 2012, a progress report by Ms. Vaughan indicated that the plaintiff was able to return to full time work. In that report Ms. Vaughan stated that since she began a GRTW the plaintiff: progressed from 2 hour shifts twice a week to 7.5 hour shifts 4 days a week at the end of the return. She has worked three to four 7.5 hour shifts for the last three weeks of the return but had difficulty working more than 2-3 shifts in a row, as she tended to need a day off after this to catch up on sleep and manage her muscle tension. She was able to complete all outlined shifts with the exception of going home one hour early on one-shift mid-program. [37] Ms. Vaughan also stated, on page 4 of her report, "client report [sic] that she has been able to complete required job demands and feels ready to return to work, that she has the ability to begin completing paid shifts." [38] At the end of that paragraph on page 4, Ms. Vaughan states: She [Ms. Roth] reported that she would like to return back to full time work as soon as possible, so I have agreed to reassess her in two weeks to see if she may be able to work 5 days a week. [39] The plaintiff denies telling Ms. Vaughan

that she was ready to return to work. [40] As with Ms. Bulloch, no reason was given why Ms. Vaughan would not have been truthful in saying that the plaintiff told her that she was ready to return to work and wanted to return to full-time work as soon as possible. [41] On the advice of Dr. Cutler, the plaintiff discontinued her work at the hospital on April 28, 2012. When she prepared her report of May 4, 2012, Ms. Vaughan may not have considered the plaintiff's poor experience with the three-day trial and Dr. Cutler's opinion that she was not ready to return to full time employment. [42] The evidence suggests that the plaintiff may have changed her position after speaking with Ms. Bulloch and Ms. Vaughan to bolster her claim in these proceedings that she was not able to return to work as a care aide at her pre-accident level of performance. While Dr. Cutler's advice supports her position, his reference to the financial and legal considerations of her returning to work suggests that he may have had an eye on more than just the impact of work on her health. [43] Following an apparent misunderstanding and not surprisingly, the GRTW program was discontinued by Ms. Bulloch. The plaintiff then obtained employment as a cashier at Shoppers Drug Mart on May 25, 2012. Soon after, she was promoted to the position of pharmacist's assistant and worked part time 4 to 5 days a week. She said

that she still experienced pain. During this time she continued with some exercise such as walking, weight lifting and stretching, and also attended for physiotherapy and chiropractic treatments. [44] The plaintiff left her job at Shoppers in January 2013. She said that was because she was still struggling with pain issues. Based on the evidence of her manager, Ms. Ewasiuk, it appears that she would have been fired or returned to a cashier's position had one been available because she did not display sufficient skills to make the required data entries into a computer in spite of being shown how to do so on a number of occasions. It appears that her departure from Shoppers Drug Mart had more to do with her lack of the necessary skills than her injuries from the accident. [45] Since that time the plaintiff tried unsuccessfully to work as a care aide for two shifts at Joseph Creek Assisted Living, as a waitress at a restaurant, and as a hairdresser, but found she could not continue with any of those jobs for more than two weeks because of the pain that she says she experienced. [46] The plaintiff testified that she has been unable to return to work as a safety watch at the pulp mill because it would require working a 12-hour shift and she would be unable to move around to manage her pain. [47] Since the accident the plaintiff says that her ability to participate in outdoor

activities such as hiking, hunting, archery, camping and riding motor bikes and ATVs has been limited by her injuries. [48] Sometime after June 2013 and until March 2014 the plaintiff again worked with Ms. Vaughan who implemented a community based pain management program for her based on recommendations made by Dr. le Nobel. The plaintiff testified that despite that program she continued to experience pain. She did say that she experienced significant psychological improvement. The plaintiff decided to discontinue the program when Ms. Vaughan proposed her involvement in volunteer work. The plaintiff did not consider herself able to participate because of the pain she continued to experience. [49] Since her involvement in the community based pain management program the plaintiff has not returned to gainful employment. She now receives a Canada Pension Plan disability payment and a disability tax credit. [50] The plaintiff engages in walking, cycling, Yoga, cognitive behavioural therapy and sleep exercises, and attends for massage therapy. She exercises at home in her exercise room using weights and stretching. She says she is only able to complete simple tasks around the home and her husband and son have to attend to some of the housework. VII. Analysis [51] In a case of this nature where there is little or no objective evidence of the symptoms that the plaintiff says she

experiences, a trial judge must be careful in assessing the evidence and the plaintiff's credibility: Price v. Kostryba (1982), 70 B.C.L.R. 397 S.C.). [52] While it is clear from the evidence that the plaintiff suffered injuries from the accident and that she experiences some limitations on her physical activity because of those injuries, the Court must be diligent in determining the extent to which the plaintiff may have exaggerated those limits and underestimated her abilities after the accident to assist her in her claim for compensation. [53] I find that there are some examples where it can be said that the plaintiff has exaggerated the severity of her injuries and the impact upon her. [54] The plaintiff testified, and told some of the medical experts, that she experienced "horrific tailbone pain" immediately after the accident. Contrary to her description of such pain, there is no reference to any tailbone pain in the hospital records, and no complaint of tailbone pain was made by the plaintiff to either Dr. Niedermayer or Dr. Buchar in February 2011. She made no report of such pain to ICBC and her only explanation under cross-examination was that she must have linked that to her lower back pain. [55] A second example is that the plaintiff told many of the medical experts that her hours as a care aide prior to the accident approached full-time hours. If she had worked four

shifts of eight hours each week, she would have recorded 64 hours for each two-week pay period. However, according to the Interior Health Authority records from January 1, 2010, until she started employment as a recreation activity worker in November 2010, the most hours she worked during a two-week period were 52.50 and that only on two occasions. During some two-week periods she recorded less than 34 hours of work. There is no evidence that she ever worked full-time hours as a care aide. [56] The plaintiff also seems to have downplayed her ability to participate in the GRTW which she said she found to be too difficult. Ms. Vaughan's opinion was that the plaintiff had the capacity and mobility skills to do all the tasks required in caring for patients, except lifting a particularly heavy patient. By May 4, 2012, Ms. Vaughan's view was that the plaintiff had the ability to work up to full-time hours in the GRTW. [57] The plaintiff denied telling Ms. Bulloch on May 7, 2012, that she was in support of the planned GRTW and felt able to return to care aide work in accordance with that plan. The plaintiff's position is that she was not able to work as a care aide because of the difficulties she encountered over a two-day period of work when she had to deal with an Alzheimer's patient. Dr. Cutler appears to have supported her position based on a brief encounter with her at the

facility when she was experiencing difficulties dealing with that patient. [58] I reject the evidence of the plaintiff that she had not told Ms. Bulloch that she was in support of the GRTW and was able to return to work as a care aid in accordance with the plan. It appears that the plaintiff wanted to justify not participating in the GRTW in May 2012 when the evidence of Ms. Vaughan indicates that she was capable of working as a casual care aide as she had done prior to the accident. I also reject the plaintiff's evidence that she did not tell Ms. Vaughan that she was ready to return to full time work. [59] In my view it made little sense for the plaintiff and, for that matter, Dr. Cutler, to reject a plan that involved the plaintiff working for two days, resting a day, working another two days for a period of two weeks, at which time the program was to be reassessed. I have concluded that the plaintiff declined to participate further in the GRTW program in order to support her claim in these proceedings that she was unable to return to work at that time. [60] This is not to say that the plaintiff does not experience pain as a result of her injuries but it seems that at the trial she was prepared to downplay the evidence that she had made a better recovery than she wished to believe. [61] In spite of Ms. Vaughan's conclusion that by May 4, 2012, the plaintiff was capable of

working up to full-time hours in her return to work program, the plaintiff seems to have downplayed her abilities in that program. She described her first eight weeks of that program as if it were "just visiting", and yet said that she found that time to be difficult. [62] Although both Ms. Vaughan and Ms. Bulloch thought that the plaintiff was prepared to continue with the back to work program by working two days, resting, and then working another two days for a period of two weeks, the plaintiff stopped working as a care aide altogether after her primary care doctor expressed views contrary to those of Ms. Vaughan and Ms. Bulloch. Her discontinuance of the program may have been justified but it does not indicate someone who was motivated to work in a health care setting. The plaintiff's decision to take a job at Shoppers Drug Mart in May 2012 indicates her willingness to return to work; however, after that job ended in January 2013, the plaintiff did not seek any employment including light work of a sedentary nature. [63] While I am not prepared to find that the plaintiff lacked credibility, I find that she tended to exaggerate the effects of her injuries on her ability to return to the job that she professed to want to do someday on a full time basis. VIII. What injuries has the plaintiff sustained due to the accident? [64] The main areas of the plaintiff's injuries from the

accident were her neck and interscapula. These were described by Dr. le Nobel as diffuse myofascial injuries. She also has experienced headaches which appear to be referred pain but nevertheless attributable to the accident. [65] The plaintiff has also suffered some psychological injury as a result of the accident and has suffered episodes of depression. [66] Dr. le Nobel opined as follows: Tracey Roth indicates depression and anxiety. She reports problems with sleep. In my experience when patients have ongoing pain and reduced activity tolerance, sleep interference and psychological difficulties commonly follow. Unless the sleep difficulties and psychological difficulties are addressed concurrently with attempts at reducing pain and improving function, the chances of successful rehabilitation lessen. [67] Dr. Laidow's opinion was that although x-rays of the plaintiff's neck and mid-back were normal and a CT scan of her head and neck showed them to be normal, a physical examination showed her to be abnormally sensitive to slight palpitation in the area of her neck and upper shoulder. He said that her extreme sensitivity was more consistent with a pain disorder than anything else. He also found that the plaintiff had developed significant myofascial tightness throughout the neck and upper shoulders. He attributed those symptoms to the accident. [68] It is apparent that the

plaintiff's psychological condition was responsive to her chronic pain, as well as the limits that pain placed on her activities. At the same time, her pain experience was exacerbated by her psychological condition. [69] I am not satisfied that the plaintiff suffered injury to her tailbone from the accident. There is no reasonable explanation as to why there is no medical record of a complaint regarding her tailbone when she was treated for a week following the accident. [70] Further, the plaintiff has not proven that the pain in her right knee is a result of the accident. In light of the degenerative changes to her right knee and the lack of documentation regarding her right knee immediately after the accident, Dr. Laidlow's opinion was that her right knee pain did not relate to the accident. He said that she "would have been prone to having knee pain and to develop progressive osteoarthritis over the years even without the accident." [71] I did not find Dr. Cutler's testimony that the plaintiff may have complained to him of knee and coccyx pain even though he made no note of that at the time, to be convincing. [72] When Dr. Cutler saw the plaintiff in December 2012 with complaints about her right knee, he requisitioned imaging of the knee. Dr. Laidlow reported that there was no change in the knee imaging to that which was found before the accident. [73] I do not accept Mr.

Roth's evidence that the plaintiff complained of pain in her right knee a few days after the accident. When he described the plaintiff's injuries on the first day of his testimony he did not mention any problems with her knee. When asked about her injuries on the second day of his testimony, he said that his recollection of her knee pain had just occurred to him in the morning of the second day. Dr. Shuckett's opinion was that the plaintiff's "right knee symptoms were pre-existing and bothered her just about a year before the subject MVA." As there is no evidence from her hospital visit or in the document known as a CL22, filed with ICBC, regarding trauma or any injury to her knee, I have concluded that her knee pain arises from a progression of her osteoarthritis which was present before the accident. [74] As to what the medical reports suggest the future holds for the plaintiff, that is perhaps best described by Dr. Laidlow who states: I feel that Tracey has slipped into a protective approach to her injuries and that her injuries have been compounded by the effects of the sleep deficit and a possible mood disorder, I think that she has the capability of improving, particularly if she were put into an optimal program of exercise combined with the treatment of her mood disorder and sleep problems, and if she were to move away from a passive approach ... I do feel that Tracey is

capable of improving the neck and upper shoulder pain in addition to her headaches and numbness in the arms. The fact she has had symptoms this long would make it likely that she will still have some symptoms of musculature discomfort in these areas into the future, but I do feel she can improve and I do not feel that the injuries will result in new problems for her down the road of a greater nature. [75] Dr. Riar's opinion is that although the plaintiff believes that she is totally disabled, she is capable of doing more than what she does. He considered her long term prognosis for psychiatric symptoms to be favorable and said she would eventually experience remission from those symptoms. At that time his view is that she will have improvements in her level of pain and be better able to manage any residual pain. [76] Dr. Mundin's opinion is that there is nothing further that the plaintiff can do from a psychiatric perspective to mitigate the mental health effects from the accident because the mental health effects will diminish only if her chronic pain is improved. [77] I prefer the opinions of Dr. Riar and Dr. Laidlow over that of Dr. Mundin. Their opinions appear to be more consistent with the evidence regarding the plaintiff's condition. In addition, Dr. Laidlow explains the interrelationship of the plaintiff's pain and her psychological problems. Both Dr. Riar and Dr.

Laidlow point out some aspects of the plaintiff's personality that may be obstacles to her recovery such as her protective approach to her injuries and her belief that she is totally disabled when she is not. Those comments are consistent with my assessment of the plaintiff when she testified. [78] The evidence also shows that following the rehabilitation program which the plaintiff began in October 2011, her condition greatly improved by January 2012, less than a year after the accident. By March 2012 the plaintiff was able to return to work for five hours a day and her ability to work continued to increase until her withdrawal from the GRTW program. [79] Having considered the expert evidence I have concluded that with an appropriate and managed rehabilitation program, including psychological counselling, the plaintiff can achieve at least the same level of well-being that she attained in early 2012. IX. Non-Pecuniary Damages [80] The plaintiff seeks non-pecuniary damages of $120,000. The defendant submits that the appropriate award should be $90,000. [81] The factors to be considered in determining an award of non- pecuniary damages have been set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46: (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; (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) [82] The plaintiff is a 40-year-old woman and suffered soft tissue injuries primarily in her back and shoulder area. She continues to suffer from chronic pain disorder and experiences sleeping difficulties. She has a pre-accident history of lower back and right knee pain complaints which would likely have continued even if the accident had not occurred. [83] The plaintiff's lifestyle has suffered as a result of the accident. While I consider her to be far from totally disabled, she has lost the enjoyment of working on her and her husband's hobby farm and the lifestyle that it provided to her. To some extent, as stated by Dr. Laidlow, this has resulted from the plaintiff becoming overly protective in relation to her injuries. With continuing appropriate rehabilitation and treatment I expect that the plaintiff's condition will improve and she will gradually return to some of her hobbies around her property. [84] I do not accept the plaintiff's argument that the garden and animals cared for by her and her husband were more than a hobby. It matters not that the garden and animals provided some food for them. The use of their property by the plaintiff and her

husband was simply a hobby and I so find. [85] Before the accident the plaintiff enjoyed a number of outdoor activities. Since the accident she has not been able to participate in physically demanding activities like motorcycle riding, archery and hiking. There is the prospect that she may find less physically demanding but enjoyable hobbies. [86] The plaintiff has been unable to perform a number of household chores that she could before the accident. Her social life has been impacted by the accident as she has been unable to entertain guests for dinner parties as she did in the past. She and her husband have also not enjoyed the intimacy they experienced before the accident. [87] Both parties provided me with a number of cases dealing with similar facts that supported the amount of damages that they consider to be appropriate. In the end however, each case must be decided on its own facts. [88] Considering the factors enumerated in Stapley, I find $90,000 to be an appropriate award of non-pecuniary damages. X. Loss of Past income Earning Capacity [89] The plaintiff seeks $115,000 in relation to her past income loss or loss of earning capacity. The defendant submits that a reasonable amount in respect of the plaintiff's past income loss is $50,000 net of tax. [90] A damage award for past income loss or loss of earning capacity is intended to restore the plaintiff to the

position that she would have been in but for the negligence of the defendant. In M.B. v. British Columbia, 2003 SCC 53, the Supreme Court of Canada accepted the principle that such damages are quantified on the basis of what the plaintiff would have, not what she could have, earned absent the injury. The value of a particular plaintiff's capacity to earn is equivalent to the value of the earnings that she would have received over time had the tort not been committed. A claim for what is often described as "past loss of income" is actually a claim for loss of earning capacity which is a claim for the loss of the value of the work that the injured plaintiff would have performed but was unable to perform because of the injury. [91] In Ibbitson v. Cooper, 2012 BCCA 249, Garson J.A. stated at para. 19: [19] While in many cases the actual lost income will be the most reliable measure of the value of the loss of capacity to earn income, this is not necessarily so. A hard and fast rule that actual lost income is the only measure would result in the erosion of the distinction made by this Court in Rowe: it is not the actual lost income which is compensable but the lost capacity i.e. the damage to the asset. The measure may vary where the circumstances require; evidence of the value of the loss may take many forms (see Rowe). As was held in Rosvold v. Dunlop, 2001 BCCA 1 at para. 11, 84

B.C.L.R. (3d) 158, the overall fairness and reasonableness of the award must be considered taking into account all the evidence. An award for loss of earning capacity requires the assessment of damages, not calculation according to some mathematical formula. [92] In considering hypothetical events the standard of proof is proof of a real and substantial possibility that the events would have occurred: Smith v. Knudsen, 2004 BCCA 613 at paras. 27-29. [93] In this case, the plaintiff's claim is based on the assumption that near the time of the accident she would have begun earning wages as a full-time care aide involving about 37.5 hours per week. The difficulty with that assumption is that the plaintiff may not have become a full-time care aide. At the time of the accident she needed to accumulate 2,000 more hours before being considered for full-time work. I note that she had never been employed on a full-time basis as a care aide. It is fair to assume that but for the accident she would have continued to work on a part-time basis about 20 hours each week. On that basis she would not have qualified for full-time work for about 100 weeks, or almost two years. [94] Even if she had qualified for full-time work as a care aide, we do not know if she would have been able to handle the full-time work load. There is some evidence that the plaintiff's problems with her back and her

right knee, which are unrelated to the accident, may have prevented her from working as a care aide on a full-time basis. The plaintiff has not established that there was a real and substantial possibility of her working as a full-time care aide at the time of the accident. [95] While the plaintiff said that her plan in the fall of 2010 was to obtain a full-time position and support a business venture with her husband and Mr. Jaggard, it was not explained how she and her husband would both work full-time hours to support the business venture while at the same time care for their son and spend the time they have said was necessary to maintain their hobby farm. [96] In determining what the plaintiff would have earned from all sources from the date of the accident to the trial, I find that the earnings of the plaintiff in 2009 and 2010 are a reasonable indication of what the plaintiff would have continued to earn until the trial, had the accident not occurred. [97] In addition, the evidence shows that the plaintiff could have worked in some capacity in 2013 and 2014. Although she had not then returned to her pre-accident functioning level I do not accept, as she submits, that she was totally disabled by her soft tissue injuries. [98] Ms. Lee's assessment of the plaintiff's functional capacity in September 2012 was that she was capable of working part-time hours, or 75% of a

regular work day with a day of rest in between. At that time, the plaintiff was working three days a week at Shoppers Drug Mart and doing some hair styling on the weekends. Although she left Shoppers Drug Mart after it became apparent that she did not have the skills necessary to be a pharmacist's assistant, she could have continued as a cashier if a position had been available. There does not appear to be a reason why the plaintiff could not have continued to work on a part-time basis at some other appropriate sedentary job. [99] Accordingly, I will start from the position that the plaintiff's income loss after the accident and until the end of the trial was, as calculated by the defendants, $79,744, but deduct from that an estimated amount that I consider she could have earned in 2013 and 2014 on a part-time basis of $5,000 per year. The resulting lost income would have been $69,744. Applying a tax rate of 14%, her net lost income would have been $59,980, which I will round up to $60,000. [100] I find that a reasonable assessment of the plaintiff's past income loss or loss of past earning capacity is $60,000. XI. Loss of Future income Earning Capacity [101] The plaintiff claims $650,000 for loss of her future income earning capacity. The defendants say that an appropriate amount of damages under this head is in the range of $60,000 to $80,000. [102] The law regarding the

determination of damages for the loss of future income earning capacity has been nicely summarized by my brother Macaulay J. in Hill v. Murray, 2014 BCSC 1528 at paras. 245-249: [245] There are two questions that the court must answer in addressing a claim for loss of earning capacity: (1) has the plaintiff's earning capacity been impaired by his injuries, leading to a real possibility of pecuniary loss? and if so, (2) what compensation should be awarded for that loss? The court's task is to assess the plaintiff's damages, not calculate them with mathematical precision. The assessment requires a comparison between the plaintiff's likely future working life if the accident had not occurred and his or her likely working life after the accident, "taking into account the positive and negative vagaries of life": Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 57; Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32. [246] There are two possible methods for quantifying loss of earning capacity: the earnings approach and the capital asset approach: Perren v. Lalari, 2010 BCCA 140 at para.

32. Where the loss can be simply measured or quantified, the earnings approach is more suitable; where the loss is difficult to measure in a pecuniary way, the capital asset approach is more appropriate. [247] The capital asset approach asks whether the plaintiff's earning capacity, as a capital asset, has been diminished because: a) the plaintiff has been rendered less capable overall of earning income from all types of employment; b) has been rendered less marketable or attractive as an employee to future employers; c) has lost the ability to take advantage of job opportunities which might otherwise have been open to him; or d) is less valuable to himself as a person capable of earning income in a competitive labour market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8. [248] In assessing future and hypothetical events, the standard of proof is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R.

458. As stated in Rosvold v. Dunlop, 2001 BCCA 1 at para. 9, in making the assessment: [p]ossibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen. [249] Once again, in making the assessment, all relevant negative and positive contingencies must be considered. [103] The expert witness called by the plaintiff to assist the Court in determining the damages for loss of future income earning capacity was Robert H.W. Carson, a consulting economist with Associated Economic Consultants Ltd. [104] Mr. Carson's opinion appears to be based on an earnings approach in that he calculates what the plaintiff's earnings would have been as a full-time care aide and compares that with what her earnings will be in other types of employment to arrive at her lost earnings. In calculating the loss of future income, Mr. Carson assumes that absent the accident the plaintiff would have worked full-time as a care aide. He does not consider that the plaintiff's background of part-time work and her circumstances in the future may lead to her choosing to work less than full-time. He also does not consider the plaintiff's pre-existing health issues involving her back and her

right knee. [105] As I have stated in relation to her loss of past income, the evidence does not satisfy me that the plaintiff would have become a full-time care aide. [106] Even though Ms. Vaughan considered that in May 2012 the plaintiff was capable of work in the light to medium range as a care aide, the plaintiff chose not to pursue that type of work. I am not persuaded that absent the accident the plaintiff would have become a full-time care aide. Rather, her work history suggests that she likely would have worked on a part-time basis to allow her to pursue her various hobbies and recreational activities. [107] In my view, the evidence establishes that in spite of the accident the plaintiff is capable of doing light work of a sedentary nature. It has not been explained why the plaintiff has not attempted to find some light work even on a part-time basis since leaving her job at Shoppers Drug Mart in January 2013. [108] With respect to the business opportunity that the plaintiff and her husband had with Mr. Jaggard, in my view, it was highly improbable that the plaintiff and her husband would have pursued that opportunity if the accident had not occurred. Even assuming that they did, there was no evidence that the proposed business would have generated a profit or even an amount that would have exceeded Mr. Roth's income from employment. I find that the plaintiff has not

established any loss of income, either past or future, from this business opportunity. [109] I am prepared to accept that but for the accident, the plaintiff would have worked as a care aide on a part-time basis or found another job in the health care field on a part-time basis at a similar level of pay. In spite of the accident I find that she remains capable of working part time in the future at a lower paying job. Indeed, if the plaintiff is better able to manage her chronic pain, she may be able to increase her hours of work beyond part-time hours. With some reliance on Table 1-A in Mr. Carson's report, I have concluded that the plaintiff's lost future income earning capacity is $125,000, and fix the damages at that amount. XII. Future Care costs [110] The plaintiff claims $750,000 for the costs of her future care. The defendants submit that a reasonable amount is $54,000. [111] The purpose of an award for the costs of future care is to restore, as best as possible with a monetary award, an injured person to the position she would have been in had the accident not occurred. This award must be based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff: Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at para.

30. There must be some evidentiary link drawn between a physician's assessment of pain or disability and the care recommended by a qualified health care professional: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para.

39. A. Chronic Pain Clinic [112] While it is unclear why a chronic pain clinic could not be accessed closer to the plaintiff's home in British Columbia, the evidence satisfies me that such a clinic is medically justifiable and I consider the one-time cost of $19,008.11 to be reasonable. B. Psychological Treatment [113] The evidence shows that psychological treatments may be beneficial to the plaintiff, particularly in relation to the chronic pain that she experiences. Such treatments have been shown to be medically justifiable and the annual cost of $1,560 is reasonable. [114] I do not accept that the plaintiff will require psychological assistance for the rest of her life. I consider that perhaps five years of treatment will be beneficial to her. C. Physiotherapy [115] The defendants have not argued against this expenditure. The plaintiff appears to have benefited from physiotherapy since the accident and will likely continue to benefit. In my view the proposed four sessions are reasonable and justifiable at a total cost of $315. D. Medications & Supplies [116] Botox, Lyrica and Cymbalta have been recommended by Dr. Shuckett on a trial basis since April 2014. [117] The evidence suggests that the plaintiff may not take these medications, so in my view it would not be reasonable to consider the costs of those medications in determining the amount under this head of

damages. [118] The cost of the TENS electrodes is reasonable in relation to her pain management. [119] The other one-time costs of medical supplies are reasonable. E. Health and Strength Maintenance [120] I accept the defendants' submission that an expenditure of $5,000 for two years of Yoga instruction is reasonable. [121] With regard to a program to assist the plaintiff with flexibility, strength and balance, I am satisfied that it would be beneficial to the plaintiff's health if she took out a gym membership and had the benefit of a personal trainer or kinesiologist to manage an active rehabilitation program. I accept that $5,000 should be sufficient for this purpose over a period of two years. [122] The defendants have not disputed the need for the "home aides" claimed by the plaintiff, including a one-time expenditure of $2,998 for a "Zero Gravity" chair, allowing the plaintiff to sit with her family for prolonged periods of time and a one-time expenditure of $799 for a stationary bike. Those amounts appear to be reasonable and medically justifiable. F. Household Support Expenditures [123] The largest part of the plaintiff's claim for the cost of future care relates to the assistance and services she submits will be necessary to maintain her home and the acreage. She argues that she and her husband strove for a unique lifestyle on the property so that they could enjoy

organic food and other benefits from their animals and garden, and the support of a full-time handyman at a cost of $29,120 per year and a housekeeper at a cost of $8,736 per year are necessary to maintain that lifestyle. [124] The plaintiff cites Morena v. Dhillon, 2014 BCSC 141, as support for her claim for the cost of housekeeping services. That case is distinguishable because a physician opined that housekeeping services would be beneficial to the plaintiff's health. There is no such medical evidence in this case. Furthermore, I do not accept that Milliken v. Rowe, 2012 BCCA 490, as cited in Morena v. Dhillon, supports this claim because the passages relied upon are from the dissenting justice in Milliken v. Rowe. In my view, O'Connell v. Yung, 2012 BCCA 57, makes it clear that while the cost of caring for the plaintiff may be claimed as a future cost of care, a claim for loss of homemaking capacity is distinguishable from that for the cost of care. [125] I am not satisfied that the evidence supports the claim for homemaking, the cost of a handyman, wood delivery or yard care. [126] I also consider that the plaintiff is presently able to do some light work around her home and it is reasonable to believe that her condition will gradually improve and allow her to do even more, provided that the condition of her knee does not worsen. It is also not clear why her husband could

not undertake more of the household duties such as dishwashing and lawn care. Although he is employed on a full-time basis he presumably has some evenings and weekends available to attend to household chores. [127] I should also point out that the impact of her injuries on the plaintiff's enjoyment of life including her enjoyment of the garden and the animals was considered in my award of non-pecuniary damages. I have also considered that the plaintiff's ability to do heavy chores may also be impacted by the deteriorating condition of her knee. [128] An award under this head of damages is also an assessment and not a mathematical calculation. All things considered, it is my view that an award of $50,000 for future home support is reasonable. [129] I award the plaintiff a total amount of $90,000 for costs of future care. [130] The amount regarding a tax gross up should be the subject of further written submissions. XIII. Special Damages [131] An award for special damages is made in the amount of $10,185. This excludes the claim for the new bed purchased by the plaintiff for which there is no supporting medical evidence. XIV. In Trust Claim [132] I do not accept that the additional 4 to 5 hours per week spent by the plaintiff's husband in providing labour, housework and domestic assistance is over and above what would have been expected from a spouse in the circumstances. No amount is awarded in respect of this claim. XV. Summary of Damages Non-pecuniary Damages: $90,000 Loss of Past Income Earning Capacity: $60,000 Loss of Future Income Earning Capacity: $125,000 Future Care Costs: $90,000 Special Damages: $10,185 In Trust Claim: 0 TOTAL: $375,185 XVI. costs [133] Costs on Scale B are awarded to the plaintiff. "Bowden J."