Watts v. Lindsay

2019 BCSC 2239 Watts v. Lindsay

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Watts v. Lindsay, 2019 BCSC 2239 Date: 20191223 Docket: M155109 Registry: Vancouver Between: Melissa Sarah Watts Plaintiff And Steven Andrew Lindsay Defendant Corrected Judgment: The text of the judgment was corrected at paragraph 118 on March 12, 2020 Before: The Honourable Madam Justice Marzari Reasons for Judgment Counsel for the Plaintiff: M.S. Randhawa Counsel for the Defendant: E. K. Haupt D. Evans, Articled Student Place and Date of Trial/Hearing: Vancouver, B.C. March 4-5, 2019; and October 21-25, 2019 Place and Date of Judgment: Vancouver, B.C. December 23, 2019 Table of Contents INTRODUCTION.. 3 BACKGROUND FACTS. 3 Prior to the Accident 3 The Accident and Post-Accident 4 ISSUES. 7 NON-PECUNIARY DAMAGES. 7 Parties' Positions. 7 Legal Principles. 9 Determination on Non-Pecuniary Damages. 11 Failure to Mitigate. 12 PECUNIARY DAMAGES. 13 Past Wage Loss. 13 Plaintiff's Position. 13 Defendant's Position. 13 Legal Principles. 14 Determination. 15 DIMINISHMENT OF FUTURE EARNING CAPACITY. 16 Parties' Positions. 16 Plaintiff's Position. 16 Defendant's Position. 17 Legal Principles. 18 Determination. 20 Loss of Housekeeping Capacity. 22 Parties' Positions. 22 Legal Principles. 24 Determination on Loss of Housekeeping Capacity. 25 Cost of Future Care. 27 Legal Principles. 27 Determination. 28 SPECIAL DAMAGES. 29 CONCLUSION AND COSTS. 29

INTRODUCTION [1] The plaintiff, Ms. Watts, claims for damages arising from a motor vehicle accident that occurred on October 20, 2014 in Surrey, BC. Ms. Watts had her 6-month-old son in her vehicle when it struck the vehicle of the defendant, Mr. Lindsay, as he made an improvident left turn in front of her out of a parking lot. As a result of the accident, she had difficulty getting herself out of her vehicle initially, and then in retrieving her child from the backseat. She experienced immediate pain and difficulty moving. She was taken to the hospital by ambulance. Her car was a write-off. Mr. Lindsay admits liability. [2] Ms. Watts claims for losses associated with her ongoing physical and mental injuries, including past wage loss, future wage loss, loss of housekeeping capacity, costs of future care, non pecuniary damages, and special damages.

BACKGROUND FACTS Prior to the Accident [3] There are no allegations of pre-existing injuries in this case. [4] Ms. Watts had just turned 30 years old at the time of the accident, and she had just turned 35 at the conclusion of this trial. She was on maternity leave at the time of the accident. Before taking maternity leave, she had worked full-time at the same employer for six to seven years. Prior to that, she had worked continuously in various jobs since she was a teenager. [5] The evidence of Ms. Watts, her mother, and her former common law partner all confirm that Ms. Watts was outgoing, active, fit and a generally positive and happy person prior to the accident; she had a strong support network of friends and an active social life. Although she had experienced a significant change in her life with the birth of her first child six months before the accident, the evidence before me from multiple sources was that she was happy and both physically and socially active, arranging play dates and going to the gym regularly during her maternity leave. The Accident and Post-Accident [6] As a result of the accident, Ms. Watts sustained soft tissue injuries to her upper back and shoulder blades, mid and lower back, chest and rib area, her right arm and wrist, her left elbow, and her knees, and she has recurring headaches. She also experienced a short period of shock and a much longer

period of difficulty sleeping, flashbacks, anxiety, and depression. [7] The defendant acknowledges that Ms. Watts still suffers from pain in her neck, back, and shoulders, right wrist and arm, her left elbow, both knees, and her chest and rib area. He accepts that the medical evidence indicates that her upper body injuries are soft tissue in nature and that there was likely some cartilage damage to her knees as well. [8] The parties generally agree that while Ms. Watts finds this pain to be debilitating, she is able to perform the physical demands of her day, which continue to include full-time work and raising two young children. Physically, her injuries require her to get up and stretch more often and continue to limit some of the carrying and heavier housework she was previously able to do. However, it is clear from her evidence, and the evidence of those who know her well, that it is the mental impact of the accident that has likely had the more dramatic impact on her life. [9] Her psychological symptoms include substantially increased irritability, periods of rage, depression, anxiety, binge eating, crying spells, low energy, lack of motivation, frustration, difficulty with concentration and focus, and flashbacks of the accident. She frequently loses her temper and yells at her children in a way that she has difficulty controlling or forgiving herself for. In addition, she

disappeared from her social networks and playdate groups that she had been active in and withdrew from her life partner and the father of her children, Mr. Anderson. The evidence establishes that her personality changed, and that this personality change was the major reason for the breakdown of their relationship. [10] On the stand, Ms. Watts was largely non-emotive. She was not dramatic, nor did she exaggerate. However, it was clear that she is deeply affected by guilt, particularly in relation to her ability to relate to and care for her children. [11] I accept that these symptoms have affected her personal life, including her primary relationships with her partner and children. I also find that they have affected her ability to perform at work, as I discuss below. [12] Ms. Watts was examined by a psychiatrist, Dr. Mallavarapu, for the purposes of this litigation. This was not a treatment relationship, and Ms. Watts has only more recently begun therapy with a clinical psychologist, who was not called to testify. Although, I found Dr. Mallavarapu's report overly reliant on screening tests and less descriptive of his actual findings as he applied them to the DSM-5 diagnostic criteria, I do accept his uncontroverted diagnosis that Ms. Watts is suffering from major depressive order. He also finds that she was probably suffering from somatic symptom disorder and chronic

post-traumatic stress disorder associated with her difficulty removing her infant son from the car after the accident. In addition, Dr. Mallavarapu opined that Ms. Watts' depression contributes to her experience of physical pain and exacerbates her other symptoms: .Ms. Watts was emotionally traumatized following the indexed MV. As a result, she developed severe anxiety and symptoms of depression. Anxiety and depression lower pain threshold and increase pain perception. On the other hand, pain is a reminder of the trauma and increases anxiety and depression; thus, causing treatment resistance and persistence of pain symptoms. [13] Ms. Watts attended physiotherapy on the recommendation of her family physician. She has also attended kinesiology. Thereafter, Ms. Watts continued with a home-based exercise program, and the evidence indicates that she has been diligent in maintaining this program. [14] Ms. Watts attended chiropractic therapy on the recommendation of her family doctor and a specialized chiropractor on the advice of her independent medical examiner, Dr. Hershler. [15] Ms. Watts saw a clinical psychologist in 2016 for a few months, had a further assessment in late 2018, and then beginning in early 2019, started seeing her psychologist regularly, on a close to monthly basis. [16] Ms. Watts has seen some limited improvement in her physical and mental injuries. However, as

of 2018, the physiatrist and psychiatrists who examined her in that year suggest that because her injuries had continued to be symptomatic four years after the accident, they were likely to continue to affect her and unlikely to fully resolve. The independent medical doctor who provided expert evidence as part of the defendant's case expressed that he did not consider that the physical injuries would be permanent upon his examination 6 months after the accident, but did not reexamine Ms. Watts at a later date to confirm his prognosis. [17] Many of the various treatments Ms. Watts has had seem to be effective for a short period of time, but to date they have not resolved the underlying source of her pain. [18] Ms. Watts testified that her low mood, crying spells, lack of energy and motivation as well as her feelings of guilt continue despite her counselling sessions. That also includes her "lack of focus" and her tendency to go "blank" as her former partner described it. She notices that her depression is correlated with an increase in her experience of pain. [19] The defendant does not dispute that Ms. Watts still experiences pain caused by the accident, but argues that her lack of improvement is in part due to a failure to mitigate her depression symptoms. The defendant also accepts that "Ms. Watts is in a bad state emotionally, and that there likely is a connection between

her pain and her emotional state." The defendant argues that Ms. Watts should have, and has failed to follow the recommendations of Dr. Mallavarapu regarding a number of anti-depressant medications. The defendant also says that there has been little improvement in the plaintiff's emotional condition despite regular counselling, which Dr. Mallavarapu stated would help. The defendant also says that there are other factors involved in Ms. Watt's emotional state, and not all of her emotional and mental injuries can be laid solely at his feet as a result of the accident.

ISSUES [20] Other than the question of the degree to which the accident contributed to the breakdown in Ms. Watts' common-law relationship and some other aspects of her depression, causation is not at issue. Nor does the defendant deny that Ms. Watt's mental injuries were legally caused, at least to some extent, by the accident. [21] Therefore, the main issues are the assessment of damages and mitigation. [22] The defendant also argued that I should draw adverse inferences against the plaintiff for failing to call her family doctor, her current counsellor, and her employer. I do not consider this to be a case where such an inference can be drawn. Had the defendant considered any of these witnesses to be essential, the defendant could have called them. Ms. Watts' decision not to call these witnesses goes solely to the issue of the extent to which Ms. Watts has established her injuries and losses. NON-PECUNIARY DAMAGES Parties' Positions [23] Ms. Watts is seeking a non-pecuniary damages award of $175,000 for chronic pain in her neck, shoulders, mid and upper back, and her mental injury. [24] The plaintiff has provided a series of cases for non-pecuniary damages for chronic pain that range from $140,000 - $150,000. These include Cumpf v. Barbuta, 2014 BCSC 1898, where the court awarded $150,000 based on the plaintiff's ongoing chronic pain condition, which significantly affected

her in her day-to-day activities, including affecting her emotionally and affecting her family, marital, and social relationships. [25] A similar award was made in Ferguson v. Watt, 2018 BCSC 1587, for non-pecuniary damages in relation to a plaintiff in her 40s who experienced lesser mental injuries than Ms. Watts. In Redmond v. Krider, 2015 BCSC 178, this Court awarded $150,000 where the plaintiff experienced chronic pain from soft tissue injuries, depressive symptoms, and anxiety. The same amount was awarded in Verjee v. Dunbrak, 2019 BCSC 1696, for a much older plaintiff, who had significant mental injuries contributing to her experience of chronic pain. [26] However, Ms. Watts says that the plaintiffs in all of the above cases had less severe mental injuries than Ms. Watts, and therefore Ms. Watts argues that her award should be higher than the award in those cases. [27] The defendant accepts that the evidence in this trial establishes that Ms. Watts's continues to suffer from physical and mental injuries caused by the accident. He says, however, that not all of Ms. Watt's emotional trauma can be laid at the feet of the defendant, including the breakdown in her relationship with her partner. Overall, he suggests that this case is most analogous to cases where the damage awards for non-pecuniary losses were in the $75,000 - $95,000 range. [28] These cases include Kagrimanyan

v. Weir, 2018 BCSC 1458 where a 35-year-old female plaintiff sustained a neck sprain and soft tissue injuries causing intermittent headaches, neck and upper back pain, and lower pack pain extending into her leg. The headaches, neck, and upper back pain largely resolved over time, but she continued to suffer from low back pain, which had become chronic. The plaintiff was able to meet the physical demands of her new job, but she was unlikely to be able to work full-time in the future. The plaintiff's injuries were said to have plateaued with little prospect of future improvement. The court awarded $75,000 for non-pecuniary damages. [29] In Sandhu v. Bates, 2018 BCSC 2116, a 30-year-old female plaintiff was involved in a motor vehicle accident while eight-months pregnant with her first child. She then endured two subsequent accidents that exacerbated her original injuries, which were largely soft tissue as well as generalized anxiety and somatic symptom disorder. The plaintiff was described by witnesses as a woman who had "changed significantly" and whose marriage was subsequently affected by her psychological injuries. The court awarded $95,000 for non-pecuniary damages. [30] In Blackman v. Dha, 2015 BCSC 698, a 33-year-old female plaintiff alleged soft tissue injuries to her neck, shoulder, upper back, wrist and forearm, as well as headaches. Because of the extended pain period

of her injuries, the plaintiff emotionally suffered from the impact it had on her lifestyle and this, in turn, adversely affected her relationships with her husband, children, and extended family. Her symptoms did improve to some extent, however four years later she was still experiencing reoccurring neck pain and headaches. Despite this, the plaintiff continued to work full-time as a music teacher and raise a family. The court awarded $80,000 in non-pecuniary damages. [31] Finally, in Guitierrez v. Covvey, 2015 BCSC 369 a female plaintiff sustained soft tissue injuries that resulted in chronic musculoskeletal pain in her neck, shoulder, knee, and thumb, and developed post-traumatic stress disorder. She was 43 at the time of trial, which was approximately four years after the accident. While she suffered from generalized anxiety and depression before the accident, she was able to function at home, work, and socially. After the accident, she was left with significant post-traumatic stress disorder and chronic pain, which was exacerbated by her work. Appropriate psychological treatment for her mental health issues was considered necessary for her to see improvement. The court awarded $75,000 in non-pecuniary damages. Legal Principles [32] Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life, and loss of amenities. The

compensation awarded should be fair to all parties, and fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide. Each case depends on its own unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188 - 189. [33] In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be considered when assessing non-pecuniary damages at para. 46: The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] 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). [34] The assessment of non-pecuniary damages is necessarily influenced by the individual plaintiff's personal experiences in dealing with his or her injuries and their consequences: Dilello v. Montgomery, 2005 BCCA 56 at para. 25. [35] Ms. Watts must be placed in the position

that she would have been in if not for the defendants' negligence, no better or worse. Tortfeasors must take their victims as they find them, even if the plaintiff's injuries are more severe than they would be for another person. However, the defendants need not compensate the plaintiff for any debilitating effects of a pre-existing condition which she would have experienced anyway: Athey v. Leonati, [1996] 3 S.C.R. 458 [Athey] at paras. 32 - 35. [36] With respect to mood disorders, the Supreme Court of Canada in Saadati v. Moorhead, 2017 SCC 28 at paras. 34 - 36, has clarified that the legal test for a compensable mental injury is no different as for finding a physical injury in that there is no need for proof of a specific diagnosis. It is sufficient that a mental or psychological harm or injury that was caused by the accident is established on the evidence. In this case, Ms. Watts has been diagnosed with major depressive disorder of moderate severity and PTSD of mild/moderate severity. [37] Finally, a plaintiff in a personal injury action has a duty to take reasonable steps to limit their loss. The defence has the burden of proof on the issue of mitigation. This involves proving two elements: first, that the plaintiff acted unreasonably in not taking the steps that the defendants say ought to have been taken, and second, that the plaintiff's loss would in fact have been eliminated or reduced had the step been taken: Chiu v. Chiu, 2002 BCCA 618 at para.

57. Determination on Non-Pecuniary Damages [38] I find on all the evidence that Ms. Watts's injuries arising from the accident have resulted in physical pain, but also significant mental injuries, including ongoing major depressive disorder. Ms. Watts' chronic pain and depression act on each other in a vicious cycle. [39] While the authorities cited by the parties are of assistance in establishing a range of damages, every case must, of course, be decided on its facts. [40] I am satisfied that the range of damages awards for the chronicity of Ms. Watts' pain are in the range suggested by Ms. Watts and that in those cases where there is a diagnosed or determined mental injury such as depression, post-traumatic stress disorder, or somatic symptom disorder, the award is generally higher. [41] Generally, I consider that the plaintiff's cases are more factually similar to the severity of the mental injury and physical pain that Ms. Watts has experienced as a result of the accident. The impact on her emotional and mental health has been severe, and the accident has negatively impacted key relationships in her life, including her relationship with her son, with whom she feels she has missed an important connection, and her now former partner and father of her children. Furthermore, I agree with the plaintiff that the injuries she has suffered in this regard, in particular the mental

injuries, are more severe than the cases she relies on. Failure to Mitigate [42] I have also considered whether any amounts should be deducted from this award on the basis of a failure to mitigate, and I have found that they should not be. [43] The defendant relies on a recommendation of Dr. Mallavarapu in December 2018 that Ms. Watts attend counselling and consider anti-depressant medication. He says that while she has tried counselling for nine months, it has not been effective and that she should have moved on to trying anti-depressants again. He says this case is similar to that in Daleh v. Schroeder, 2019 BCSC 1179, where the plaintiff sought compensation for major depressive disorder. The defendants suggested that the plaintiff failed to mitigate her injuries by refusing to follow her doctor's recommendation that the plaintiff take anti-depressant medication. The court agreed. At para. 112 of this judgment, Justice Branch found: [112] Here, the plaintiff has largely followed in her doctors' advice and has engaged in an array of treatments. But I find that her diagnosed Major Depressive Disorder is a major element of her ongoing difficulties. The plaintiff is fully entitled to refuse medical treatment, but the defendants are not required to pay for the effect of such a refusal. [44] However, there are some notable differences in this case. In this case, Ms. Watts had only

received the recommendation of Dr. Mallavarapu less than a year before trial, and has begun the psychological therapy he recommended almost immediately. She also had been prescribed and taken Cymbalta after the accident and prior to her second pregnancy, but was required to go off that medication when she was pregnant, and had a significant adverse reaction to it afterward. Although she testified that she is reluctant to try another anti-depressant, she has not ruled that out, and conceded that if her pace of recovery does not improve she will likely have to try anti-depressants again shortly. I also find that it is premature to determine that her therapy sessions will not bear fruit, and I take into consideration the real possibility of ongoing improvement through the use of further therapy and medication in my award with respect to Ms. Watts' prognosis. [45] Taking all of the above into account, I award Ms. Watts $160,000 in non-pecuniary damages.

PECUNIARY DAMAGES Past Wage Loss Plaintiff's Position [46] Ms. Watts is claiming $15,000 for past loss of earning capacity based largely on amounts she says she would have earned in performance bonuses that she was unable to earn due to her injuries. [47] Ms. Watts does not make any claims for past wage loss in the first few years after the accident when she continued to work full-time. Her employer accommodated her need for breaks and medical treatment and allowed her to make up her time when she missed work. [48] However, she says that in September 2017, she obtained her current employment at a private college, which came with a higher salary and the potential to earn performance bonuses of up to an additional $20,000 per annum. However, those performance bonuses require her to be able to connect with students and enrol them into programs. She says that rather than earn any performance bonuses, she has been unable to meet even her base salary targets and that, as a result, she feels her current position is not secure. [49] She testified that she is aware that her other co-workers are able to meet the base target, and some exceed it and earn bonuses. Before the accident, she also excelled at work and was cheerful, outgoing, and able to make social connections. Based on the bonus structure in evidence, she argues that she likely would have been able to earn $15,000 in

performance bonuses since September 2017. Defendant's Position [50] The defendant says that this claim is based merely on Ms. Watt's perceptions of her success in comparison to her co-workers and that these perceptions are subjective and not corroborated. He points out that no one from Ms. Watts' work was called as a witness, and there are no written performance reviews or documented comparators before the Court. Furthermore, subjective worry about the possibility of being laid off is not sufficient evidence that her employment is actually in jeopardy: Ju v. Morpurgo, 2019 BCSC 194 at para. 59. [51] The defendant says that even if the Court was to accept that there was a loss in bonuses, the plaintiff has provided no evidence to support a $15,000 loss. [52] Finally, as it relates to the past loss of earnings, the defendant also argues that it is Ms. Watts' mental injuries and depression that are likely having the largest effect on her earnings, and her failure to try anti-depressants since starting this job is a failure to mitigate. Legal Principles [20] Compensation for past loss of earning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; and M.B. v. British Columbia, 2003 SCC 53 at para. 49. [21] Pursuant to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,

the plaintiff is entitled to recover damages for only her past net income loss. In exercising this discretion, I must keep in mind that the plaintiff is to be put back in the position she would have been in had the accident not occurred: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at paras. 185-186 [Lines]. [53] The plaintiff need not establish earnings loss on a balance of probabilities -- since what would have happened between the date of the accident and prior to the trial is essentially hypothetical, as are predictions regarding future losses. As stated in Smith v. Knudsen, 2004 BCCA 613 at para. 29: What would have happened in the past but for the injury is no more "knowable" than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events. [22] A 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 Morlan v. Barrett, 2012 BCCA 66 at para.

38. Determination [54] Ms. Watts' has not suffered any diminishment in her earnings since the accident. After her scheduled maternity and parental leaves were completed, she returned full-time to the workforce at an equivalent position and salary. In 2017, three years after the accident, she applied for and obtained a new full-time position with a substantially better salary. [55] However, there is a real and distinct possibility that, had the accident not occurred, Ms. Watts would have been able to better perform in this new position. The evidence establishes that prior to the accident and the depression that it caused, she was more outgoing, focused, and able to connect with people. [56] I therefore find that the likelihood that Ms. Watts would have earned bonuses in 2018 and 2019 had the accident not occurred is likely. However, it is far from a certainty, and any award must take into account the relative likelihood of performance bonuses and their amounts. [57] I accept Ms. Watts' evidence that her co-workers have been able to earn some bonuses, which increase in $5,000 increments based on performance targets. [58] Taking into account all of the above factors, I would award Ms. Watts $5,000 for loss of past earning capacity, which reflects the real possibility that she would have earned some performance bonuses over the last two years were it not for her injuries.

DIMINISHMENT OF FUTURE EARNING CAPACITY Parties' Positions Plaintiff's Position [59] Overall, Ms. Watts says that a fair award for her diminished future earning capacity is $500,000. [60] Both the psychiatrist and the physiatrist who examined Ms. Watts opined that given the number of years that she has continued to experience both physical pain and depression, her symptoms would be ongoing or even permanent. The evidence suggests that her physical injuries limit her to more sedentary employment where she has the opportunity to take "micro breaks" and that these symptoms will mean that she will continue to have vocational limitations in the future. [61] Ms. Watts acknowledges that she has not lost income since the accident, and that indeed, she has managed to obtain more remunerative work than she had before the accident. However, she says that she underperforms in that role as a result of the accident and that she will continue to lose performance bonuses that she would otherwise have been able to earn. Of greater concern is that her current salary is not a reliable indicator of her future earning potential because her job is precarious due to her failure to meet her stated minimum performance levels. [62] She says her losses should be awarded on the basis of a loss of capacity or capital asset approach and that she meets all four of the criteria in this regard: a) she has been

rendered less capable overall from earning income from all types of employment; b) she is less marketable or attractive as an employee to potential employers; c) she has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and d) she 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.) [Brown]. [63] Ms. Watts relies on the comments of Madam Justice Southin in Palmer v. Goodall, 53 B.C.L.R. (2d) 44 at 59: Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured, or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability. [64] Ms. Watts says that if she loses her job, then she may not even make her base salary, and the most likely result would be that she would return to her previous type of employment with an income that is $15,000 - $20,000 less than her current salary. [65] Based on the expert evidence regarding the present value of

such a future loss, a loss of $20,000 a year until Ms. Watts reaches age 67 would amount to $505,520. [66] This calculation is based on the highest bonus level that she could achieve in her current job, or the loss of her current job. It also assumes that she would work to 67 when her evidence was that she intended to work until she was 65. However, Ms. Watts says the award is appropriate because it takes into account other negative contingencies. Defendant's Position [67] The defendant essentially takes the same position for future earning capacity as he does for past earning losses. He says that Ms. Watts has not demonstrated that the factors established by Mr. Justice Finch in Brown have been met and that: a) Ms. Watts has not been rendered less capable from earning income from all types of employment given that she has held two full-time jobs since the accident; b) She is not less marketable or attractive as an employee to potential employers, given that she sought, applied for, and obtained her current employment after the accident. In fact, she sought and obtained employment for which she had no previous experience; c) She clearly has not lost the ability to take advantage of all job opportunities that might otherwise have been open to her, again demonstrated by her ability to obtain and keep two full time jobs since the accident; and d) Lastly, Ms. Watts has demonstrated

that she is an individual who is clearly capable of earning income in a competitive labour market. [68] The defendant argues that it has not been established on the evidence that Ms. Watts is actually at risk of losing her employment. She did not state that this had in fact been said to her, only that her boss has noted her failure to meet the base performance goals and has stated she did not know what else they could do for her. There was no direct evidence from this employer in regards to the status of Ms. Watts' current employment. [69] The defendant also says that there is no evidence that Ms. Watts would have to go back to her previous salary if she was unable to keep her current position. [70] Finally, the defendant argued that Ms. Watts' decision not to try anti-depressant medication constitutes a failure to mitigate and should result in a decrease in any award. Legal Principles [71] A claim for loss of future earning capacity raises two key questions: 1) has the plaintiff's earning capacity been impaired by her injuries; and, if so, 2) what compensation should be awarded for the resulting financial harm that will accrue over time? The assessment of loss must be based on the evidence and not an application of a purely mathematical calculation. The appropriate means of assessment will vary from case to case: Brown; Pallos v. Insurance Corp. of British Columbia (1995), 100

B.C.L.R. (2d) 260 (C.A.) [Pallos]; and Pett v. Pett, 2009 BCCA 232. The plaintiff must establish that there is a real and substantial possibility of a future event leading to an income loss: Perren v. Lalari, 2010 BCCA 140 at para. 32 [Perren]. [72] The assessment of damages is a matter of judgment, not calculation: Rosvold v. Dunlop, 2001 BCCA 1 at para. 18. [73] Insofar as possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendant's negligence: Lines at para.

185. The essential task of the court is to compare the likely future of the plaintiff's working life if the accident had not happened with the plaintiff's likely future working life after the accident: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32. [74] There are two possible approaches to assess loss of future earning capacity: the "earnings approach" and the "capital asset approach". Both approaches are correct. The "earnings approach" will generally be more useful when the loss is easily measurable: Perren at para.

32. Where the loss "is not measurable in a pecuniary way", the "capital asset approach" is more appropriate: Perren at para. 12. [75] The earnings approach involves a form of math-oriented methodology such as i) postulating a minimum annual income loss for the plaintiff's remaining years of work, multiplying the annual projected loss by the number of remaining years and calculating a present value or ii) awarding the plaintiff's entire annual income for a year or two: Pallos; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233 [Gilbert]. [76] The capital asset approach involves considering factors such as i) whether the plaintiff has been rendered less capable overall of earning income from all types of employment; ii) whether the plaintiff is less marketable or attractive as a potential employee; iii) whether the plaintiff has lost the ability to take advantage of all job opportunities that might otherwise have been open; and iv) whether the plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market: Brown; Gilbert at para. 233; and Morgan v. Galbraith, 2013 BCCA 305 at paras. 53 and 56 [Morgan]. [77] Though the capital asset approach is not a "mathematical calculation", the court must still set out the factual basis of the award: Morgan at para. 56. [78] The principles that apply in assessing loss of future earning capacity were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 101: The relevant principles may be briefly summarized. The standard of proof in relation to future events is simple probability, not the balance of probabilities, and hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para.

27. A plaintiff is entitled to compensation for real and substantial possibilities of loss, which are to be quantified by estimating the chance of the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss of earning capacity may involve a comparison of what the plaintiff would probably have earned but for the accident with what he will probably earn in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of future events is unknown, allowance must be made for the contingency that the assumptions upon which the award is based may prove to be wrong: Milina v. Bartsch, supra, at 79 Determination [79] Ms. Watts is now earning substantially more than she was at the time of the accident as a result of her applying for and securing her current job. This is therefore a case where the capital asset approach is the more

appropriate one, where the loss is measured by Ms. Watts' overall loss of opportunity and diminishment of earning capacity, taking into account the factors in Brown. [80] In this regard, I find that Ms. Watts has established that she is more limited in her overall earning capacity as a result of the accident. Her depression, in particular, but also her restriction to more sedentary forms of employment, make her less marketable as a potential and current employee and restricts the range of future career opportunities. While Ms. Watts clearly applied for and secured a better position for herself, I consider that she has also established that her work ethic and motivation to succeed at work has been significantly diminished as a result of her mental and physical injuries caused by the accident. [81] On all the evidence, I find that Ms. Watts has established that she is at some risk of losing her current job. Ms. Watts has been told that her position has a firm performance target. She missed that target in her first year and has been warned more than once in her second year that she was not on track to meet her performance target. The security of her position is based on reaching these targets, and she was not close to achieving them. I am satisfied that her position may be at risk despite the fact that there was no direct evidence of this from her employer. I accept that this risk

is related to Ms. Watts' lack of motivation, detachment, and depression associated with injuries from the accident. [82] However, I do not consider that Ms. Watts has established that she will continue to suffer from her mental injuries, without relief or remedy, to the same extent for the next 30 years of her life. She has only restarted the recommended therapy in the past year, and she has not ruled out further interventions. [83] I find that Ms. Watts' continued determination to recover and to support her family will assist her in overcoming her mental injuries, and this will assist in her ability to cope with her physical injuries. While there is a risk that she may never fully recover from either, given how recently she began therapy for her mental injuries, I am unwilling to find that that risk is a realistic one on the evidence before me for more than 20 years. [84] I have therefore considered the potential ranges of Ms. Watts' losses related to her injuries caused by the accident, including a potential 10 - 20% diminishment of Ms. Watts' current earning capacity for 10 - 20 years, which I calculate to be $65,000 - $225,000 based on the appropriate adjustments. I note that an impairment in this range could still allow for a higher salary than she was earning at the time of her accident before and after her maternity and parental leave; however, it represents both the

risk of the loss of her current job and a general impairment in her ability to obtain and maintain work that requires the motivation, focus, and engagement, as well as more active career opportunities, which she had prior to the accident. [85] Taking all of the above into account, I find that Ms. Watt's compensation for future diminishment of her earning capacity is best compensated in the amount of $145,000. Loss of Housekeeping Capacity Parties' Positions [86] Ms. Watts seeks $6,000 per year in damages for past loss of housekeeping capacity as a distinct head of damage from her non-pecuniary damages and future cost of care award. She also seeks another $6,240 per year for costs of future care on the same basis to age 75. [87] She relies in this regard on her evidence that she did the majority of house hold tasks, including cleaning, shopping, and laundry, and was the primary caregiver for her infant son, and that she did so without any limitations prior to the accident. [88] After the accident, Ms. Watts' parents took over almost all of these tasks for approximately eight months in their own house, including cleaning, shopping, cooking, dishes, laundry, feeding, bathing, and caring for their grandson. From 2015 to 2017, Ms. Watts' partner took over the responsibility for the household chores such as shopping, cooking, cleaning, and laundry when they moved out of her parents'

home, though they quickly hired a cleaner to help clean the bathrooms when the workload proved too much. He also took on the feeding and bathing and outings with their son, with Ms. Watts only helping with limited tasks when she was able. [89] They hired the cleaner to clean the bathroom and assist with the heavier household responsibilities. Ms. Watts seeks compensation at $30 an hour for four hours of work per week for the almost two years that she has paid a cleaner, which amounts to approximately $6,000 per year. She also seeks compensation for the three years in which her parents and partner performed housekeeping work on her behalf. In total, Ms. Watts seeks $30,000 as compensation for her loss of past housekeeping capacity. [90] Ms. Watts says that the four hour per week estimate is actually a conservative estimate in terms of what her partner and parents have contributed and continue to contribute to cleaning her home, cooking food for herself and her children, and caring for her children. She says this is work that she would otherwise have had the capacity to do and would have done. This is supported by the evidence of Ms. Watts' parents and her former partner, who still regularly spend time at her house to assist with shopping, cooking and cleaning, as well as caring for the children. [91] The defendant says that Ms. Watts was planning to move with her family to her

parents' home in any event around the time of the accident in any event while her partner renovated the home they had recently purchased. They simply moved in earlier than expected as a result of the accident. The defendant says that, while at her parents' home, it is questionable exactly how much Ms. Watts would have contributed to the cleaning her parents' home. However, he acknowledged that she was having difficulty contributing to the cooking of her own meals and the feeding and care of her son during this period. [92] The defendants accepts that when the family moved into their own home, Ms. Watts' partner took over these tasks because Ms. Watts was unable to contribute to them, but he found it too much, and they then hired a cleaner. Ms. Watts was limited to helping with dinner and dishes "when she could" and putting away the laundry once it had been done and folded. [93] When Ms. Watts moved back with her parents in 2017 with her now two children, her parents once again took over the main cleaning, shopping, cooking, bathing, laundry, and outings with the children. [94] In April 2018, Ms. Watts moved out of her parents' home with her two children. However, her parents come twice a week to shop for her groceries, cook, clean and to put meals in her freezer. Her parents shop for her at Costco, and her now ex-partner will come to Ms. Watts' home 2-5 times a week and help

bring these groceries upstairs and prepare a meal, clean up and bathe and spend time with the children. [95] The defendant says that the evidence establishes that Ms. Watts is now capable of managing her household with the help of Mr. Anderson and her parents a few times a week. If Ms. Watts is entitled to housekeeping assistance at all, it should only be for a short period of compensation for future housekeeping. This would afford Ms. Watts a certain amount of time for her to move forward with her rehabilitation, focusing more on her new doctor and her treatments. Legal Principles [96] Damages for loss of housekeeping capacity are conceptually distinct from other heads of damage and this award may be given both prospectively and retrospectively. In McTavish v. MacGillivray et al., 2000 BCCA 164, the Court of Appeal discussed loss of housekeeping capacity as follows: [68] In my view, when housekeeping capacity is lost, it is to be remunerated. When family members by their gratuitous labour replace costs that would otherwise be incurred or themselves incur costs, their work can be valued by a replacement cost or opportunity cost approach as the case may be. That value provides a measure of the plaintiff's loss. Like the trial judge I would prefer to characterize such compensation as general damages assessed in pecuniary terms, reserving special damages for those circumstances

where the plaintiff actually spent money or incurred a monetary liability, although I do not wish to state a settled view on that question in the absence of full submissions as to the consequences of the distinction, if any. [97] Our Court of Appeal affirmed that the law in respect of loss of housekeeping capacity is conceptually distinct from costs of care in O'Connell v. Yung, 2012 BCCA 57 at para. 67 [O'Connell]: As I understand the principle, it is the loss of a capacity - an asset - that is compensated. Accordingly, because the award reflects the loss of a personal capacity, it is not dependent upon whether replacement housekeeping costs are actually incurred. Damages for the cost of future care serve a different purpose from awards for loss of housekeeping capacity. Unlike loss of housekeeping capacity awards, damages for the cost of future care are directly related to the expenses that may reasonably be expected to be required (Krangle at para. 22) [98] Most recently, in Kim v. Lin, 2018 BCCA 77, the Court of Appeal considered the proper approach to valuing a loss of housekeeping capacity: [33] Therefore, where a plaintiff suffers an injury which would make a reasonable person in the plaintiff's circumstances unable to perform usual and necessary household work -- i.e., where the plaintiff has suffered a true loss of capacity -- that loss may be compensated by a

pecuniary damages award. Where the plaintiff suffers a loss that is more in keeping with a loss of amenities, or increased pain and suffering, that loss may instead be compensated by a non-pecuniary damages award. However, I do not wish to create an inflexible rule for courts addressing these awards, and as this Court said in Liu, "it lies in the trial judge's discretion whether to address such a claim as part of the non-pecuniary loss or as a segregated pecuniary head of damage": at para. 26. [34] Whichever option a court chooses, when valuing these different types of awards, courts should pay heed to the differing rationales behind them. In particular, when valuing the pecuniary damages for the loss of capacity suffered by a plaintiff, courts may look to the cost of hiring replacement services, but they should ensure that any award for that loss, and any deduction to that award, is tied to the actual loss of capacity which justifies the award in the first place. Determination on Loss of Housekeeping Capacity [99] I am satisfied that Ms. Watts has experienced a loss of capacity that is properly compensated as a damages award for loss of housekeeping capacity. [100] She makes a similar claim as part of her claim for damages for cost of future care in the future. In my view, there is little qualitative or quantitative difference between her loss of housekeeping capacity to date,

and her anticipated loss of housekeeping capacity in the future, and I would award her general damages for both past and present under this head of damages. [101] In terms of her capacity, Ms. Watts has lost the ability to carry heavy objects like groceries up stairs or do heavy cleaning that requires kneeling. She has been limited in her ability to pick up and carry both of her children. Her parents not only took on most of her cooking and cleaning requirements in the eight months or so after the accident, but they have also become direct and highly involved caregivers of Ms. Watts' children, providing aspects of care for the children that Ms. Watts has not been able to, as a result of the accident. Their father is also engaged in their care, and that is to be expected. However, the evidence also establishes that he also assists Ms. Watts with her groceries and cooking on the days and evenings he is able to pick up the children and bring them back to her home, and I consider that to be related to her loss of capacity due to the accident. [102] Ms. Watts' loss of her ability to clean and maintain her home, shop and cook for herself and her family, and her limitations in being able to carry her children and provide aspects of care to them is a significant loss of capacity. [103] Some of this loss is calculable in terms of the help that Ms. Watts and her partner hired when they

first moved out of her parents home: $30 an hour for two to four hours per week. However, I agree that those hours are not fully representative of her loss of capacity and the unpaid work that her parents have contributed and continue to contribute, as much as they are happy to do it. [104] I would value this loss at approximately $5,000 per year for the next 15 years to the age of 50, and would apply the cost of future care adjustments to that amount. To this I would add another $6,000 per year in amounts she has paid toward housekeeping and for the greater loss of capacity that she suffered in the first five years before trial when her children were younger and she was on leave, and her incapacity caused the most significant losses as well as the cost of a cleaner. [105] Overall, I award Ms. Watts $100,000 for both past and future loss of housekeeping capacity. Cost of Future Care [106] In addition to her claim for housekeeping costs, which I have addressed above, Ms. Watts seeks to recover her anticipated costs for ongoing treatments and therapies, including ongoing chiropractic treatments and therapy with her psychologist to the age of 75 in the amount of $280,000. [107] The defendant agrees to some these costs, including the therapy with the psychologist and up to two years of physical therapy of some sort, but not multiple physical therapies for many years. Legal

Principles [108] The 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 insofar as that is possible. When full restoration cannot be achieved, 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.) [Milina]; Williams v. Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC 1104 at para. 55; and Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 29 - 30. [31] The test for determining the appropriate award under the heading of cost of future care is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of future care and (2) the claims must be reasonable: Milina at 84; and Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62 - 63. [109] Future care costs are "justified" if they are both medically necessary and likely to be incurred by the plaintiff. The award of damages is thus a matter of prediction as to what will happen in the future. If a plaintiff has not used a particular item or service in the past, it may be inappropriate to include its

cost in a future care award. However, if the evidence shows that previously rejected services will not be able to be rejected in the future, the plaintiff can recover for such services: Izony v. Weidlich, 2006 BCSC 1315 at para. 74; O'Connell at paras. 55, 60 and 68 - 70. [110] The extent, if any, to which a future care costs award should be adjusted for contingencies depends on the specific care needs of the plaintiff. In some cases, negative contingencies are offset by positive contingencies and, therefore, a contingency adjustment is not required. In other cases, however, the award is reduced based on the prospect of improvement in the plaintiff's condition or increased based on the prospect that additional care will be required. Each case falls to be determined on its particular facts: Gilbert at para. 253. [111] An assessment of damages for cost of future care is not a precise accounting exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para.

21. Determination [112] I find that an award for the 30 initial sessions with the a treating psychologist as recommended are supported, and only 2 such sessions are included in the agreed special costs to date. The recommendation appears to be for these to occur more intensely than over 2 - 3 years but that some therapy will likely still be needed on a regular basis beyond the first 30 sessions. However, I do not consider that the evidence supports that this can or should occur monthly until Ms. Watts is 75 years old. Dr. Mallavarapu says the pace and number of further sessions will require further assessment after 30 sessions. [113] Taking those recommendations into account, I would award her $200 per session for the remaining recommended 28 more intensive sessions, and then ongoing sessions at the same rate 6 times a year for 10 years, which is equivalent to $1,200 per year. [114] Similarly, I consider that the evidence supports ongoing physical therapies that provide gradual or temporary relief of pain for a few days or more, and ongoing kinesiology, but the evidence does not support that this will be required or used beyond the next five to 10 years. I would award Ms. Watts $1,200 per year which would cover monthly costs for any single recommended physical therapy for 10 years, which Ms. Watts may use more intensively in the next 5 years, or spread out over more

years. [115] Ms. Watts' has reported relief from certain medications that are not covered by her benefit plan, and she is entitled to recovery for those in the amount of $150 annually for the next 10 years to the age of 45. [116] This amounts to $2,550 per year for ten years. With the application of the cost of care multipliers for 10 years, this amounts to $27,130, plus the $5,600 for the 28 remaining sessions of more intensive therapy.

SPECIAL DAMAGES [117] The parties have settled special damages at $5,472.

CONCLUSION AND COSTS [118] In conclusion, Ms. Watts is entitled to $448,202 in damages from the defendant as follows: a) Non-pecuniary Damages: $160,000 b) Past wage loss $5,000 c) Loss of Earning Capacity $145,000 d) Loss of Housekeeping Capacity: $100,000 e) Cost of Future Care: $32,730 f) Special Damages: $5,472 Total: $448,202 [119] Ms. Watts is entitled to any applicable court ordered interest on her past wage loss and special damages. [120] Ms. Watts is also entitled to her costs, subject to any offers or other matters that may require an adjustment to her costs. If the parties wish to address costs, they may make arrangements with the Registry to appear before me for this purpose within 30 days of receipt of these reasons. "Marzari J."