Torrance v. Davies

2022 BCSC 1630 Torrance v. Davies

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Torrance v. Davies, 2022 BCSC 1630 Date: 20220915 Docket: M171611 Registry: Vancouver Between: Tiffany Ann Marsnas aka Tiffany Ann Torrance Plaintiff And Matthew James Davies Defendant - and - Docket: M1912965 Registry: Vancouver Between: Tiffany Ann Marsnas aka Tiffany Ann Torrance Plaintiff And Mark Voronov and Andrey Voronov Defendants Before: The Honourable Justice Kirchner Reasons for Judgment Counsel for the Plaintiff: B.W. Veale Counsel for the Defendant: C.L.A. De Diaz M. Sahota Place and Dates of Trial: Vancouver, B.C. August 15-19, 2022 Place and Date of Judgment: Vancouver, B.C. September 15, 2022 Table of Contents Introduction.. 4 Facts.. 4 Pre-Accident 4 The First Accident 5 The Second Accident 6 Ms. Torrance Today. 7 Expert Evidence.. 9 Summary of Findings on Injuries.. 11 Non-Pecuniary Damages.. 12 Loss of Future Earning Capacity.. 14 Housekeeping.. 17 Cost of Future Care.. 20 Special Damages and Past Loss of Earnings.. 21 Summary of Damages.. 22 Costs.. 22 Introduction [1] The plaintiff, Tiffany Torrance, seeks damages for injuries she suffered in two rear-end motor vehicle accidents. The first was on April 13, 2015 when her car was hit from behind while she was driving slowly in traffic on the Pitt River Bridge. The second was on January 2, 2018 when her car was hit near her place of work in Coquitlam.

Liability for both accidents is admitted. [2] It is common ground that as a result of the first accident, Ms. Torrance suffered a soft tissue injury to her neck and the pain associated with that injury has become chronic. She also suffers from headaches once or twice a week, although they were more frequent shortly after the first accident. These headaches are a product of her neck injury and it is not disputed they were caused by the first accident. Ms. Torrance is able to treat the headaches with over-the-counter Tylenol or Advil. [3] Following the second accident, Ms. Torrance developed a driving anxiety that, over time, has become a more generalized anxiety. While the severity of the anxiety is in dispute, the defendants do not dispute it was caused by the second accident. [4] Ms. Torrance seeks damages for loss of future earning capacity, loss of housekeeping capacity, cost of future care, and non-pecuniary damages for pain, suffering, and loss of enjoyment of life. The parties agree on special damages in the amount of $6,520.57 and past loss of earnings at $1,640 after tax. Facts Pre-Accident [5] Ms. Torrance is 39 years old. She was 31 at the time of the first accident and 34 at the time of the second. She grew up Maple Ridge and completed high school in 1998. In her early twenties she began work as an account coordinator at TricorBraun, a packaging company, and is still

employed there, now as an account manager, 17 years later. [6] Prior to the first accident, Ms. Torrance led a happy and social life. She lived with Stuart Torrance, now her husband, with whom she had been in a relationship since 2009. [7] Ms. Torrance was very active socially with a core group of friends she saw often. She described herself as a "busy bee". Mr. Torrance, who is less socially inclined, described her as a "social butterfly" who got him out of the house to socialize with her friend group. He said she was always on the go and had a big social group. Her close friend, Kimberly Finnigan, described Ms. Torrance as carefree and outgoing before the first accident. [8] Ms. Torrance was physically active and in good shape before the first accident. She and Mr. Torrance regularly went to the gym and she ran daily up to five km each day by the time of the accident. She said she had been building up her stamina to run that distance in the year before the accident. She also went rock climbing and hiking. She and Mr. Torrance started playing tennis in 2014 and played throughout the summer months. Mr. Torrance said "we were terrible, but it was fun." The First Accident [9] Almost immediately after the first accident, Ms. Torrance began to feel pain in her neck and her headaches came on soon after. She was taken by ambulance to Eagle Ridge Hospital where she was told she had

suffered whiplash. She was given a muscle relaxant and released that evening. [10] Ms. Torrance continued to experience neck pain and headaches in the months and years following the accident. She also experienced tingling in her right hand that resolves when she moves her hand around. She suffered pain in her lower back and hip but that resolved six or eight months after the first accident. The frequency of the headaches varied but they are now generally down to one or two a week and are treatable with over-the-counter pain medication. However, the neck pain, which Ms. Torrance describes as a "raw sharp pain in the base of my neck", has become chronic. She still suffers the same amount of neck pain daily despite regular and frequent treatment that she has continuously pursued since the first accident. She has diligently followed a regime of physiotherapy, massage therapy, and home exercises recommended by doctors and therapists. She said her life was "surrounded around appointments". Though the defendants pleaded and asserted in their Trial Brief that Ms. Torrance failed to mitigate her losses by pursuing a full course of treatment and exercises, that was not pursued at trial, properly in my view. Ms. Torrance finds some temporary relief from her neck pain with massage treatments but the pain returns a day or two after. [11] She ceased her physical activity after the first

accident, other than going for short walks, because it agitated the pain in her neck. As a result she began to put on weight. Her mood declined and she socialized less. She missed only a few days of work right around the time of the accident but found work more challenging because her neck would become more painful as she sat at her desk. She made a point of getting up each hour to stretch and walk around. [12] Since the first accident, Ms. Torrance has also suffered from poor sleep, largely due to her neck and an inability to find a comfortable position that limits her pain. She says she was a sound sleeper before the first accident but now cannot recall any night that she has slept through. The Second Accident [13] The second accident did not cause any new physical injuries. However, Ms. Torrance developed a significant driving anxiety as a result of the second accident which grew into a more generalized anxiety over time. She said she was constantly anxious about driving and scared someone would hit her. She said the anxiety grew to the point where it has severely affected her ability to socialize. She said she becomes anxious about driving to meet friends and whether she will find parking where she is going. While out with friends, she cannot fully enjoy herself because she is anxiously thinking about the drive home. Mr. Torrance testified it is very hard for Ms. Torrance

to be in a car. He says her stress and anxiety is palpable and she gets flustered when she drives. [14] Dr. Russel O'Connor, a physiatrist who assessed Ms. Torrance, suggested Ms. Torrance may benefit from a defensive driving course to assist with her anxiety. Ms. Torrance says she would love to take such a course but has not yet done so. It seems she thought she needed some kind of medical approval for this but it is not clear why she has not yet taken the course. [15] In June 2018, on her doctor's recommendation, Ms. Torrance began seeing a psychiatrist, Dr. Killick, about her anxiety. She still sees Dr. Killick every two months or so and says she feels better having someone to talk to but it has not improved her overall condition. She has tried medication but it was making her ill so she stopped after discussing it with Dr. Killick. Ms. Torrance Today [16] Ms. Torrance continues to experience the same neck pain she has suffered since the first accident. She also feels pain in her trapezius which is associated with the neck pain. She says the severity of the pain is largely unchanged, although she has come to live with it. As noted, her headaches persist once or twice a week but she is able to treat them with pain medication. The tingling in her hand continues but is quickly resolved with movement. Her anxiety has worsened since the second accident. [17] Ms. Torrance

socializes and sees friends from time to time but finds it more difficult to do so and certainly does not have the active social life of her pre-accident years. She does not suggest her social life has evaporated. Nor does she deny that there are good times when she is with her friends. Her life is not a constant state of misery but she says the anxiety is always present when she is out, even if she distracted from it for short periods of time. [18] Ms. Torrance began working from home when the COVID-19 pandemic hit in March 2019. She finds this beneficial because she no longer has to cope with the anxiety of commuting to work. She also feels more freedom to get up and stretch to help manage her neck pain without feeling self-conscious about doing so in front of her colleagues. [19] Despite her pain and anxiety, Ms. Torrance has travelled with some frequency since the accidents. She and Mr. Torrance have been to Mexico two or three times, including one time in 2017 when they were married in Cabo San Lucas. These were fairly sedate one-week trips where they mostly relaxed by the pool and did not go on excursions. In April 2022 they went to an all-inclusive resort in the Dominican Republic which was also a relaxing trip but Ms. Torrance found the long flight bothered her neck and she was not feeling great throughout the holiday. She has also taken several road trips to the

Okanagan and Alberta to visit friends. [20] The defendants argue that Ms. Torrance's neck pain is not as constant as her evidence would suggest. They point to a statement in Dr. O'Connor's report that the neck pain causes her to have three to four "bad days" per month. However, a "bad day", according to Dr. O'Connor, is when she experiences pain in the range of a 9 out of 10. Other times she reports the pain in the 5 out of 10 range. Thus, she did not report an absence of pain on days that are not "bad" and I accept her pain is constant, but for brief periods of relief she gets from massage therapy. The pain is more severe on the "bad days". [21] 2022 was a bad year for Ms. Torrance. She said she felt defeated by her neck pain and the constant stream of physio and massage therapy which she felt had taken over her life with little to show for it. She discussed this with Dr. Killick who recommended she take a break from her treatments. She has now re-started massage therapy but has not returned to physiotherapy because she is doing the recommended stretches and exercises on her own at home. [22] She has not returned to her pre-accident physical activity. She started to go back to the gym doing some light workouts but stopped again when the Omicron variant of COVID caused gyms to close again. She has not gone back since, although, as discussed below, Dr. O'Connor says there is no

medical reason that she cannot. In fact, he recommends that she resume these activities. [23] Ms. Torrance's relationship with Mr. Torrance has remained strong but has been affected by her injuries and anxiety. Mr. Torrance is more cautious about what he says to Ms. Torrance so as not to trigger her anxiety. Their social life has diminished. They are intimate much less frequently because of Ms. Torrance's pain and she feels less attractive with her weight gain. [24] Ms. Torrance and Mr. Torrance hope to have a baby. They have been trying since 2017 but have had fertility challenges unrelated to the accident. They have pursued medical assistance with this and have plans for more but if it does not work out in the next year or so she said they will stop trying. She says if they do not have kids she hopes to retire at 55 or maybe 60 but expects she will need to work longer if they have kids. Expert Evidence [25] Dr. O'Connor is a specialist in physical medicine called as an expert by Ms. Torrance. In his opinion, Ms. Torrance's neck pain and associated pain in her right trapezius is related to a musculoligamentous strain to the neck caused by the first accident and her headaches are secondarily muscle tension triggered by the neck pain. He said her neck strength and core strength are severely weak and noted that she has become significantly deconditioned as a result of stopping

her regular exercise. [26] In his opinion, she is capable of returning to her pre-accident physical activity and says this would be beneficial for managing and potentially improving her neck pain. He suggests she will likely feel more pain when exercising but expects the physical activity will ultimately be beneficial. He said there are no medical restrictions for her to return to physical activity and her restrictions are "self-prescribed". He also recommended a number of neck-strengthening activities that Ms. Torrance has incorporated into her daily routine. [27] Dr. O'Connor opined that given that Ms. Torrance has experienced chronic neck pain with no marked improvement since the first accident, it is likely that she will live with it permanently along with the intermittent headaches. He holds out some hope for improvement if she continues with the prescribed exercises and returns to physical activity but opines the condition is likely to remain chronic and suggests her prospects for improvement are no better than 50%. [28] Dr. O'Connor also opines that Ms. Torrance suffers from driving anxiety that has worsened since the second accident. The defendants argue I should give no weight to this opinion because Dr. O'Connor's lacks expertise in matters relating to anxiety and mental health. Ms. Torrance argues, based on Dr. O'Connor's evidence, that there is some intersection

between physical medicine and mental health in that depression and anxiety can impact a patient's physical pain and ability to recover. Thus, anxiety is something Dr. O'Connor regularly deals with in his practice. [29] I accept that anxiety features regularly in Dr. O'Connor's work but that does not qualify him to give expert opinion on the subject. I accept he can opine on how anxiety may impact physical pain and Ms. Torrance's recovery but his expertise do not extend to providing the court with an opinion in the nature of a diagnosis or a prognosis for improvement or recovery from anxiety. [30] That said, the court does not necessarily require a medical opinion evidence to conclude Ms. Torrance has suffered anxiety as a result of the accident: Saadati v. Moorhead, 2017 SCC 28 case. As Brown J. stated at para. 31 of that case, "a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects." However, the court's ability to assess the severity of and the prospects for recovery from anxiety - "the length of such impairment and the nature and effect of any treatment" - is limited without expert evidence: Saadati at para. 38. [31] Dr. Tonya Ballard is also a physical medicine specialist who was called as an expert by the defendants. She diagnosed Ms. Torrance with a "cervical spine sprain/strain, WAD Grade I, with

associated headaches and myofascial neck and upper back pain." Her diagnosis and opinions with respect to the chronicity of Ms. Torrance's neck pain are not materially different to those of Dr. O'Connor. However, she parts company with Dr. O'Connor on whether Ms. Torrance has a vocational disability as a result of the accident. She also offers a more optimistic prognosis for Ms. Torrance's neck pain to improve or even resolve. [32] For reasons I explain below, I prefer Dr. O'Connor's opinion on the prognosis for recovery from the physical pain. Summary of Findings on Injuries [33] Ms. Torrance suffers from chronic daily neck pain that is severe at times, associated pain in her right trapezius, and headaches related to the neck pain but which are treatable with over-the-counter pain medication. She also suffers from anxiety that has worsened since the second accident. These conditions impair her sleep and have impacted her physical activity, her social life, and her personal relationships including with her husband. She is now 39 years old and her 30s - a prime time in her life - have been marred by chronic pain, anxiety, depressed mood, diminished physical fitness, frequent medical and treatment appointments, and weight gain and corresponding insecurity. [34] Based on the expert evidence, is is probable she will experience her neck pain and related headaches indefinitely.

However, there is some hope for improvement or even resolution. I prefer Dr. O'Connor's opinion that the prospects for improvement are no better than 50% over Dr. Ballard's more optimistic prognosis. Dr. Ballard's opinion appears to be based on a misapprehension that Ms. Torrance's neck pain was "intermittent" rather than constant. While Dr. Ballard suggested in cross-examination that this was an error in the text of her report and not in her own assessment, I was not persuaded by her explanation. [35] I accept that Ms. Torrance's has suffered driving anxiety as a result of the accident and this has worsened into a more generalized anxiety over time. In the absence of expert evidence, though, I am not able to determine whether this condition is chronic or what the prospects for recovery are. Ms. Torrance was still suffering from anxiety at the time of trial and I therefore accept it will persist for at least some time. However, in the absence of expert evidence on the subject, I find I am not able to assess the potential length of her impairment into the future or the nature or effect of treatment, other than to observe that her psychiatric treatment with Dr. Killick has generated limited success to date. [36] While Ms. Torrance has been significantly set back in her physical activity, she is capable of returning to it and, in fact, it is expected to be beneficial for her. In

assessing the impact on this aspect of Ms. Torrance's life, I consider Dr. O'Connor's opinion that Ms. Torrance's limitation is "self-prescribed". That said, Dr. O'Connor was clear she will experience heighted discomfort and pain when undertaking physical activities, at least for a while. [37] While the defendants have disputed the extent and severity of Ms. Torrance's injuries and anxiety, they do not dispute these were caused by the accidents. Non-Pecuniary Damages [38] Non-pecuniary damages are awarded to compensate a plaintiff for pain, suffering, loss of enjoyment of life, and loss of amenities. The compensation should be fair to all parties. Fairness is measured against awards made in comparable cases, but these serve only as a rough guide since each case depends on its own facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189. The assessment is necessarily influenced by each plaintiff's own experiences in dealing with the injuries and their consequences: Dilello v. Montgomery, 2005 BCCA 56 at para. 25. [39] A common but non-exhaustive list of factors typically considered include the plaintiff's age; the nature of the injury; the severity and duration of the pain; disability; emotional suffering; loss or impairment of life; loss or impairment of family, marital, or social relationships; impairment of physical and mental abilities; loss of lifestyle; and the plaintiff's

stoicism: Stapley v. Hejslet, 2006 BCCA 34 at para. 46. [40] Ms. Torrance argues that non-pecuniary damages should be assessed at $130,000. She relies on five cases to suggest this range: Lee v. MacLean, 2022 BCSC 312 ($130,000); Davidson v. 0969446 B.C. LTD., 2021 BCSC 609 ($125,000); Kam v. Van Keith, 2015 BCSC 1519 ($125,000); Fennell v. Mikulasik, 2021 BCSC 2012 ($105,000); and Miller v Resurreccion, 2019 BCSC 1719 ($120,000). She argues Lee is most comparable to her circumstances. [41] There are notable parallels between Ms. Torrance's circumstances and the plaintiff in Lee. The injury is similar and I find Ms. Torrance shares some the same stoicism of the plaintiff in Lee. However, both the injuries and their effect on the plaintiff were more severe in Lee than what I consider Ms. Torrance has suffered. [42] In Davidson the injury was to the shoulder and, on my read of the case, somewhat more severe than Ms. Torrance's injuries. It also caused the plaintiff's career to "nosedive" which is not the case here. In Kam the injuries were more expansive than Ms. Torrance's extending to the lower pack and tailbone and pelvic region as well as the neck. The accident there also significantly aggravated a pre-existing fibromyalgia condition. The nature of the physical injuries in Fennell is similar to Ms. Torrance's but the headaches in that case were more severe and frequent.

However, anxiety was not a factor in that case and the plaintiff's pre-accident life was not particularly similar to Ms. Torrance's. I find the injuries in Miller, particularly the headaches which were found to be "frequent and debilitating", were also more severe than what Ms. Torrance has suffered. The plaintiff in that case also had considerable trouble functioning at work. At the same time, though, I find that Ms. Torrance is stoic and tends to work through her pain with some stretching breaks to manage it. [43] The defendants suggest a range of $50,000 to $60,000 is appropriate and rely on Dennison v. Jensen, 2019 BCSC 725 ($50,000); Jansson v. Malone, 2021 BCSC 585 ($55,000); and Hardychuk v. Johnstone, 2012 BCSC 1359 ($60,000, or about $75,000 in today's values). [44] I do not find Dinnison to be particularly comparable to this case. There the plaintiff's injuries from a "very minor" impact had resolved, save for some back pain that persisted. The court described these persisting problems as "minor" and the prognosis in the expert evidence was "excellent". [45] The injuries and their effects on the plaintiff's life in Johnson are similar to the present case but there the unanimous view of the medical experts was that the plaintiff could expect a full recovery from her injuries. That is not the case here. [46] In Hardychuk, the plaintiff suffered similar injuries to Ms.

Torrance plus a concussion. However, some of the plaintiff's injuries had resolved and her ongoing back and neck pain was variable with good days and bad days, not constant like Ms. Torrance's. The plaintiff in Hardychuk was able to fully resume her physical activities, including working out at the gym, with only some discomfort. She had some driving anxiety but the court found this was "fleeting". [47] Having regard to my findings of fact, the Stapley factors, and the authorities cited, I find an award of non-pecuniary damages of $110,000 is appropriate. Loss of Future Earning Capacity [48] In Rab v. Prescott, 2021 BCCA 345 at para. 47 the Court of Appeal restated the analysis for assessing a potential loss of future loss of earning capacity and how to quantify any such loss. The court outlined a three-step process as follows: [47] From these cases, a three-step process emerges for considering claims for loss of future earning capacity, particularly where the evidence indicates no loss of income at the time of trial. The first is evidentiary: whether the evidence discloses a potential future event that could lead to a loss of capacity (e.g., chronic injury, future surgery or risk of arthritis, giving rise to the sort of considerations discussed in Brown). The second is whether, on the evidence, there is a real and substantial possibility that the future event in question will

cause a pecuniary loss. If such a real and substantial possibility exists, the third step is to assess the value of that possible future loss, which step must include assessing the relative likelihood of the possibility occurring. [49] In Grewal v. Naumann, 2017 BCCA 158, Justice Goepel, dissenting but not on this point, discussed how this analysis is applied in the context of both past and future loss of earning capacity: [48] In summary, an assessment of loss of both past and future earning capacity involves a consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. If the plaintiff establishes a real and substantial possibility, the Court must then determine the measure of damages by assessing the likelihood of the event. The loss is assessed by weighing possibilities and probabilities of hypothetical events. The loss may be quantified on an "earnings approach" where the loss is easily measurable or a "capital asset approach" where it is not easily measured. The capital asset approach treats the plaintiff's ability to work as a capital asset that may have been lost or impaired by the injuries: Perren v. Lalari, 2010 BCCA 140 at para. 32; Brown v. Golaiy

(1985), 26 B.C.L.R. (3d) 353 (S.C.). [50] Ultimately, the overall fairness and reasonableness of the award must be considered, taking into account all the evidence: Rosvold v. Dunlop, 2001 BCCA 1. [51] To the extent there is a loss in this case, it is one that is best approached using the capital asset approach. That is because Ms. Torrance has suffered no loss of income at the time of trial (apart from a few missed days around the accidents) and she continues to work full time with no immediate prospect of this changing. She has been promoted with a pay raise since the accident and received a very strong performance review from her employer. [52] Ms. Torrance is also very happy in her work. She likes what she does and has no immediate plans to seek further advancement. However, there are opportunities for promotion within her company that she may consider in the future. In particular she could see herself pursuing an outside sales position with the company which would come with higher pay, but she says this would require a lot of travel and longer hours. She is not sure she could handle that position now with her anxiety. [53] Dealing with the Rab analysis, the evidence discloses a potential future event that could lead to a loss of capacity. Dr. O'Connor opined that Ms. Torrance is capable of doing her work on a full-time basis but does so with increased stress that

aggravates her chronic neck tension. In this respect, he opines that she has some vocational disability and, while she is coping at work, she does not have much "gas in the tank" for other activities. Dr. O'Connor also opines that Ms. Torrance's neck pain is likely to persist indefinitely, although there is some prospect for improvement or recovery. He opines that it is unlikely that her pain will cause her to go off work in the future but she is at a "substantially increased risk of this because of her chronic pain" and "worsening of her anxiety." I take this to mean there is a potential for her to go off work in the future because of her condition, but it is not a likelihood. Dr. O'Connor states she is more susceptible to having to go off work than the general population because of her injury. [54] On this basis I accept the evidence discloses a real and substantial possibility, though not a likelihood, that Ms. Torrance's chronic neck pain which presently affects her at work could cause her to reduce her working hours in the future as time passes and she grows older: Morlan v. Barrett, 2012 BCCA 66 at para. 41; Paller v. Regan, 2013 BCSC 1672 at para.

58. Thus, having regard to the factors in Brown, I find she has been rendered less capable overall of earning an income from all types of employment, is less valuable to herself as a person capable of earning income in a competitive market, and, as someone who currently requires accommodations such as moving around periodically while working, is at least somewhat less capable or attractive to potential employers. [55] However, I am not persuaded the evidence demonstrates a real and substantial possibility that her anxiety will impair her future ability to work either at her current job or to pursue advancement through an outside sales job. As I have said earlier, I am satisfied her anxiety is likely to persist for some period of time but there is no expert evidence giving a prognosis for her anxiety or assessing the prospects for it to resolve. I note in this respect that Ms. Torrance's treating psychiatrist, Dr. Killick, did not give evidence. [56] Confining the potential future loss to impacts of her chronic physical pain, I find the relative likelihood of suffering a loss is relatively low. As a starting point, it must be less than 50% given Dr. O'Connor's opinion that she is unlikely to have to go off work. Moreover, excluding the anxiety as a potential cause for this future loss further reduces the likelihood. I must also consider that Dr. O'Connor opines there is at least

some prospect for her chronic pain to improve. [57] Ms. Torrance's diminished capacity to sustain work as described by Dr. O'Connor falls squarely within the line of cases discussed in Rab at para. 30: [30] But in other cases, assessing the possibility of a future income loss is less straightforward. Among these are cases involving plaintiffs whose injuries have led to continuing deficits, or have exposed them to future problems, yet whose income at the time of the trial is at or near the level of earnings they enjoyed before the accident. These tend to be cases that lend themselves to the capital asset approach to quantifying the loss. [58] Ms. Torrance argues I should apply the capital asset approach of using one or two years of her income to quantify the loss. This approach, often referred to as the Pallos approach, was discussed at some length in Rab at paras. 64-72. Specifically, Ms. Torrance argues I should quantify her loss at $250,000 which is just over two years of her current annual salary. In cases where this approach has been used, a range of one or two years of income is usually applied: Kim v. Baldonero, 2022 BCSC 167 at para.

100. Ms. Torrance has not explained the rationale for $250,000. [59] In my view, after excluding anxiety as a factor that may diminish her future capacity to work, I find that one year's income ($120,000) is a reasonable starting point to assess Ms. Torance's loss of future earning capacity. However, considering the relative likelihood of the loss which I have assessed as being fairly low and accounting for the possibility for improvement in her condition, I would discount this by 75% and award $30,000 for loss of future earning capacity. Housekeeping [60] A plaintiff is entitled to an award for loss of housekeeping capacity if such a loss is established: Kim v. Lin, 2016 BCSC 2405, aff'd 2018 BCCA 77; Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178; McTavish v. MacGillivray, 2000 BCCA 164. [61] An award may be made under one or more separate heads of damage, including pecuniary, non-pecuniary, and cost of future care. Whether a loss of housekeeping capacity should be assessed as a pecuniary or non-pecuniary loss is in the discretion of the trial judge, but the main guiding principle is this: where the plaintiff is capable of performing the housekeeping tasks but with difficulty, a non-pecuniary award is usually appropriate; where the plaintiff must have others perform or assist in the housekeeping tasks, be it through a paid service provider or gratuitously by friends or family

members, a pecuniary award may be appropriate: Riley v. Ritsco, 2018 BCCA 366 at para. 101; Liu v. Bains, 2016 BCCA 374 at para. 26. [62] Damages for loss of housekeeping capacity, even as pecuniary damages, are an assessment, not a rigid mathematical calculation. Nevertheless, it is acceptable to utilize labour force information regarding the value of replacement services in making that assessment: Liu, para. 28. [63] Prior to the first accident, Ms. Torrance did almost all of the indoor housekeeping work and cooking. Mr. Torrance did yard work. Immediately after the first accident, she was not able to do any housework and Mr. Torrance took over, but this improved with time. [64] Presently, Ms. Torrance does light housework such as cooking and washing dishes. Mr. Torrance does heavier work such as vacuuming and cleaning showers. He also does the laundry though he said Ms. Torrance helps with that. Mr. Torrance estimates that he now does about 60% of the housework. Ms. Torrance estimates that if she were to hire a housekeeper to replace the work she did in the home prior to the first accident, she would need about an hour a week. [65] I accept this evidence. While there appeared to be some discrepancy between Ms. Torrance's and Mr. Torrance's evidence on this share of the housework post-accident, I took this to arise from Mr. Torrance including yard work in his calculation

whereas Ms. Torrance did not. Regardless, I find Ms. Torrance's estimate of a replacement value of one hour per week accords with the evidence both she and Mr. Torrance gave regarding the amount of work she is no longer capable of performing. [66] Ms. Torrance seeks an award of $40,000 for loss of housekeeping capacity. She basis this on the one hour per week at $40 per hour extended over 20 years. This would take her to age 59. [67] Ms. Torrance did not lead any evidence of labour market information for housekeeping services. I note, however, that in Steinlauf v. Deol, 2021 BCSC 1118, aff'd 2022 BCCA 96, Justice Basran applied a rate of $20 per hour in his assessment. On appeal, Justice Grauer upheld this, noting that "[i]f anything, it seems to be a conservative estimate." In light of this authority, $20 per hour may not be a ceiling but the $40 per hour proposed by Ms. Torrance seems high. [68] That said, assessing the housekeeping need for just 20 years (to age 59) seems low. Other cases have used age 70 or 75 in assessing the future loss: Xu v. Balaski, 2020 BCSC 940; Anssari v. Alborzpour, 2019 BCSC 512. Moreover, the formula Ms. Torrance proposes does not capture the loss of housekeeping capacity from the date of the first accident to trial. [69] In my view, a proper starting point is to asses Ms. Torrance's loss of housekeeping capacity from the date of the first

accident to the present. I find the one hour per week of replacement services is a reasonable assessment of her diminished capacity. Applying an hourly rate of $20 over the seven years and four months from the date of the accident to trial results in an assessment of past loss of housekeeping capacity of $7,600. [70] For the future loss, I apply the same approach of one hour per week at $20 but I would extend that to age 70 (31 years). The annual cost is $1,040. Using the CIVJI present value multiplier for 31 years (22.9377) the present value of this future loss of housekeeping capacity is $23,885. I would then apply a contingency discount to the future loss to account for the possibility that Ms. Torrance's pain will improve or potentially resolve, thus allowing her to resume more household duties. Dr. O'Conner suggested the prospect for improvement is less than 50%. I gather that the prospect for a full recovery, while possible, is less than this. I will therefore apply a 35% contingency deduction resulting in a future loss of $15,506. Combining this with the past loss adds up to $23,125. I would then round this up to $25,000 to account for Ms. Torrance's more diminished capacity in the weeks after the accident. In my view, $25,000 is reasonable compensation for loss of housekeeping capacity. Cost of Future Care [71] A plaintiff is entitled to compensation for the cost of

future care based on what is reasonably necessary to restore her to her pre-accident condition to the extent that is possible. When full restoration cannot be achieved, such as in the case of chronic pain with a poor prognosis for improvement, the court must strive to assure full compensation through the provision of adequate future care. The award is to be based on what is reasonably necessary on the medical evidence to preserve and promote the plaintiff's mental and physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC 1104; Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 29-30. [72] The test for determining the appropriate award is objective, based on medical evidence. There must be a medical justification for each item claimed, and the claim must be reasonable: Milina at para. 84; Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63. Justification means the cost is both medically necessary and likely to be incurred by the plaintiff. If the plaintiff has not used a service in the past, it may be inappropriate to include it in a future care award: Izony v. Weidlich, 2006 BCSC 1315 at para. 74; O'Connell v. Yung, 2012 BCCA 57 at paras. 55, 60, 68-70. [73] Ms. Torrance seeks an award of $50,000 for cost of future care. She argues this includes the cost of massage therapy

at $75 per session once a week plus medications she takes for her headaches and sleep. She does not explain how she arrived at $50,000. [74] The defendants argue there is no medical justification for the massage therapy claim because it was not recommended by Dr. O'Connor or Dr. Ballard. I disagree that this claim is not justified. It is not necessary that a physician testify to the medical necessity of each item claimed under care of future care. However, there must be evidence of medical justification for the item: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 39; Chiu v. Chiu, 2002 BCCA 618 at para. 40. [75] In this case, Ms. Torrance began attending massage therapy to alleviate the diagnosed pain in her neck. This was part of the course of therapy, along with physiotherapy, that she undertook on the advice of her family doctor. Her evidence is the treatment gives her some temporary relief from her neck pain. On this basis, I am satisfied massage therapy is medically justified in this case. [76] Ms. Torrance testified the cost of her massage therapy sessions is $75 per session. The treatment record she prepared indicates she attends regularly for massage therapy but not every week. On that basis, 25 sessions per year seems reasonable for both the need and the likelihood that Ms. Torrance will take the treatment. That results in an annual cost of

$1,875. Given the chronicity of her neck pain, I would assess this need for a 30-year period (using the CIVJI present-value multiplier of 20.9303) and apply the same contingency discount of 35% used for future housekeeping capacity. On that basis, I asses the cost of future care award for massage therapy at $25,500. [77] Ms. Torrance tendered no evidence for the cost of her medications. Thus, while I would accept that they are medically justified and reasonable, the evidence does not permit me to quantify that amount. I would also have allowed for the cost of a defensive driving course to assist with the anxiety as recommended by Dr. O'Connor but there was no evidence of the cost of that course. Special Damages and Past Loss of Earnings [78] As noted, the parties agree on special damages in the amount of $6,520.57 and past loss of earnings at $1,640 after tax. Summary of Damages Non-Pecuniary $110,000 Loss of Future Earning Capacity $30,000 Past Loss of Earnings (after tax) $1,640 Loss of Housekeeping Capacity $25,000 Cost of Future Care $25,500 Special Damages $6,520.57 Total $198,660.57 Costs [79] Subject to hearing from counsel, I would award costs to Ms. Torrance on Scale B. If counsel wish to address me on the issue of costs they may do so in writing by directing any submissions through trial scheduling. "Kirchner J."