IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150831

Docket: M67736

Registry:
Nanaimo

Between:

Renee Crevier

Plaintiff

And:

Karen Thompson

Defendant

Before:
The Honourable Mr. Justice Bracken

Reasons for Judgment

[1]            
The plaintiff seeks damages for injuries she received in a motor vehicle
collision that occurred near Sooke, British Columbia, on the afternoon April
14, 2011.  Liability is not admitted.

[2]            
The plaintiff and defendant were both driving west on West Coast Road with
the plaintiff following behind the defendant.  As the defendant approached the
intersection of West Coast Road and Otter Point Road, she slowed her vehicle
and moved to the right side of the road.  The intersection is a “T” intersection
where Otter Point Road intersects West Coast Road from the north or right
side of the highway for west-bound traffic.  On the other side of the
intersection there is a bank of Canada Post mailboxes.  There is a gravel area
between the mail boxes and the travelled portion of West Coast Road.  It was
the defendant’s intention to stop and pick up her mail and she commenced a left
turn onto the gravelled area in front of the mail boxes.  She intended to
complete the turn on the gravelled area so that when she stopped she was facing
east.  There is disagreement between the plaintiff and the defendant as to
whether the defendant was attempting to make a left turn or a “U” turn.

[3]            
The plaintiff says that the defendant was attempting a “U” turn but the defendant
submits that it was more properly described as a left turn.  The plaintiff says
that the defendant is 100% liable for the collision because she made an unsafe
turn.  The defendant submits that the plaintiff was the following vehicle and
as such bears responsibility for following too closely behind the defendant;
failing to keep a proper lookout and passing in an unsafe manner.  The
defendant submits that liability should be equally shared between the parties.

The Plaintiff’s History

[4]            
The plaintiff was 24 years old at the time of the accident.  She is a
high school graduate and has a diploma in hairdressing.  She was working as an
entry level stylist at Fish Salon in Victoria at the time of the accident.  She
started work there on August 24, 2009 and worked as a regular part-time
employee.

[5]            
Prior to the accident she had been employed as a hairdresser at two
other hair salons in the greater Victoria area.  It does not appear that she
was particularly happy with her work at either salon.  Her evidence was that
prior to being injured she was an active person who enjoyed vigorous hiking
excursions, watersports and other outdoor activities.  She was single at the
time of the accident but she has since married her then boyfriend Robert
Dermott.  He described her as someone who loved to be outdoors engaged in
activities such as camping, hiking and driving back roads in a four wheel drive
vehicle.  The plaintiff said she did not have any health problems prior to the
accident.

[6]            
The plaintiff’s friend, Andrea Martin, has known the plaintiff for
several years.  She said they are close friends.  She also described the
plaintiff as an active person who enjoyed outdoor activities.  They went tubing
on the river together and participated in social activities.  They were living
in different communities around the time of the accident and had not been in
close contact in the months immediately preceding the accident.  No other
friends or family members were called to give evidence.

The Plaintiff’s Injuries

[7]            
The plaintiff testified that she felt pain in her neck, upper back, mid back
and low back immediately following the collision.  She also felt numbness and slight
pain in her left chest and arm.  She was upset following the accident and had a
cut above her eye.  She was taken to hospital and released after a few hours. 
She had no broken bones.

[8]            
She saw a doctor at the office of her family doctor, Dr. Vally, on
April 17, 2011, a few days after the accident, and saw Dr. Vally about ten
days later.  He described her injuries as a cut above the eye and anterior
chest bruising, likely from a seat belt. He said that the injury to her
shoulder and neck have been persistent.  He did note improvement in
functionality and said that the plaintiff had been working out quite aggressively
when he last saw her in September 2014.

[9]            
Dr. Vally also noted that the plaintiff had experienced some work-related
stress and anxiety prior to the accident.  His notes indicated one of the
incidents was in August 2010.  He prescribed medication to try and reduce her
anxiety level.  Following the accident he felt that she should have been
referred to a pain clinic but it was somehow overlooked until he made the
referral a few months prior to the trial.

[10]        
The plaintiff was referred for physiotherapy and kinesiology as well as
exercise therapy in a swimming pool and a gymnasium.  She also attended a
focussed exercise and nutrition program and was seen by a physiatrist.  As
noted, she has also been referred to the Nanaimo Pain Clinic.

[11]        
At the time the trial began in October 2014, the plaintiff was receiving
physiotherapy and intramuscular stimulation every two or three weeks and was
working on a core strengthening program.  She said that while she finds the
intramuscular stimulation painful, it does provide significant relief from
pain.

[12]        
She was referred to Dr. Lynne MacKean, a specialist in physical medicine
and rehabilitation.  Dr. MacKean prepared two reports: the first is dated
September 25, 2012, and the second was prepared April 24, 2014.  Dr. MacKean
described the plaintiff’s injuries as “Grade 2 soft tissue injuries involving
the neck and upper back and Grade 1 soft tissue injuries involving the lower
back.”  She said that she expected to see “continued improvement over time as
she recovers from these injuries over the next one to two years.”

[13]        
She also noted that upon examination:

There were no specific postural abnormalities of the spine. 
She demonstrated full range of motion of the thoracolumbar spine and she complained
of discomfort felt across the lower back with forward flexion.  She described
no significant increase in lower back pain with extension or side flexion.  She
was able to do a full squat with no difficulty and no complaints of
discomfort.  She had full range of motion of the hips with no complaints of
pain.  A straight leg raise was 75 degrees bilaterally with no complaints of
discomfort.

She demonstrated full range of
motion of the cervical spine and she complained of pulling felt down the back
of the neck and into the upper back with flexion and pulling felt down the
sides of the neck and into the upper trapezius region with side flexion to
either side.  She described no significant increase in neck pain with extension
or rotation of the cervical spine.

[14]        
Dr. MacKean also noted that the plaintiff had a full range of motion of
the shoulders although she complained of “pulling” in the scapular region,
particularly on the right side when reaching overhead with her arms.  She had
more discomfort in the left upper back between the spine and the shoulder and
trapezius muscles.  All other diagnostic reports such as X-Rays, bone scan and
MRI were normal.

[15]        
In her report of April 24, 2014, Dr. MacKean said that the plaintiff
complained of ongoing pain in her upper and mid back and the upper trapezius
area.  She had less pain in her lower back and in her arms and she was not
having as much numbness or tingling in her arms.  She said that the neck and
upper back pain is triggered by sitting for more than a few hours and also by
holding her arms out in front of her at shoulder level.

[16]        
On examination, the plaintiff had close to full range of motion of the
thoracolumbar spine with some discomfort felt in the upper to mid back with
flexion extension, side flexion and rotation of the trunk.  She was able to
squat down with no difficulty or pain.  She had full range of motion of the
hips with no pain.  She also had full range of motion of the shoulders and she
described some “pulling” in the upper back and between the shoulders when she
was reaching with her arms above shoulder level.

[17]        
Dr. MacKean was of the opinion that the plaintiff was most likely close
to the point of “maximal medical improvement” as it was, by then, about three
years post-accident.  She said that the plaintiff

…will most likely have chronic
pain symptoms involving the neck, upper back, and shoulder girdle region and I
would not expect her pain symptoms to resolve and I expect they will be
permanent.

[18]        
Dr. MacKean did not think the plaintiff could return to work as a
hairstylist and thought she should explore other career options.  She
recommended that the plaintiff continue with physiotherapy and that she
continue with her gym program, swimming pool exercises and home exercises.  She
also felt that the plaintiff should attend the pain clinic respecting an
assessment and continue to work with a kinesiologist.

[19]        
On cross-examination at trial, Dr. MacKean agreed that both physical
examinations were essentially normal subject to complaints of pain at the
limits of range of motion.  She agreed that the low back injury was of little
significance.  She also agreed that the phrase “maximal medical improvement”
does not necessarily mean that there will be no further improvement.  Dr.
MacKean also agreed that the plaintiff was not completely disabled from any
employment.

[20]        
The plaintiff was referred to Dr. Timothy Deutscher, a specialist in
physical medicine and rehabilitation, for an independent medical examination. 
He conducted the examination on July 17, 2014.  In his report dated July 31,
2014, Dr. Deutscher summarized the symptoms that were related to him by
the plaintiff.  She told him that her pain symptoms had become somewhat more
prominent over the weeks prior to his examination.  She also said that her pain
symptoms were aggravated by shopping, lifting things such as grocery bags, and
housework.  He reviewed her treatment and medications as well as her personal
history.

[21]        
Upon his examination he found the plaintiff to be cooperative and said
that she followed his instructions.  He said that she walked normally and could
squat and rise up easily from the squat position.  He noted that she had good
cervical range of motion with a slight restriction at full forward flexion and
extension with tightness but no pain.  She had good thoracic and lumbar spine
rotation.  He found no evidence of any deformity but he said there was
tenderness from her mid neck to the area between her shoulders and the
trapezius muscles.  He also said that the plaintiff had good range of motion of
the shoulders and hips.

[22]        
Dr. Deutscher stated at para. 47 at page 6 his report that:

She reports marked impairment and
disability as a result of her pain.  These limitations are strictly based upon
her subjective symptoms and there are no physical signs or clinical
investigations to confirm or dispute her level of symptomatology.  It should be
noted that she presented in the office in a very matter of fact and
straightforward way and participated fully in the assessment without any
suggestion of what I would describe as being pain amplification behaviour.

[23]        
Dr. Deutscher is of the opinion that most people who have “mechanical
post traumatic pain in the thoracic and cervical spine” will be able to perform
regular active exercise and work at jobs that allow periodic change of position
and avoid heavy manual work.  He also felt the plaintiff would be able to
participate in her pre-accident recreational activities including some
occasional water sports, active exercise programs although such activities
“…may be associated with episodic flares of discomfort.”

[24]        
He summarized his opinion in the last paragraph of his report:

It is my opinion that her
prognosis is guarded for complete resolution of her symptoms given the
longevity of her complaints though it is still possible that she will have
reduction in symptoms and improvements in activity tolerance in the long term. 
Her prognosis is favorable for being able to perform work which allows: the
reasonable optimization of body mechanics, pacing in activities with periodic
breaks and frequent change in position as well as light to moderate manual
activities including the work as a hairdresser.

[25]        
The plaintiff’s counsel emphasized the fact that Dr. Deutscher is of the
opinion that the plaintiff’s prognosis is guarded and the defendant emphasizes
that Dr. Deutscher feels the plaintiff can work in certain jobs, including that
of a hairdresser.

[26]        
The plaintiff attended for a functional work capacity assessment on
May 6, 2014, with Mr. Trevor Kyi, a qualified occupational therapist.  Mr.
Kyi conducted an assessment over a period of a full day.  His assessment
included a hairdressing simulation described at page 16 of his report.  In all
aspects of the assessment Mr. Kyi found the plaintiff cooperative and said
that she appeared to put full effort into each of the activities involved in
the assessment.  He said that she tended to overestimate her capacity at times,
that is, she felt she could do more than she was actually able to do.

[27]        
At page 30 of his report, Mr. Kyi summarized his findings with respect
to the occupation of hairdresser as a suitable vocation for the plaintiff.  He
concluded that the physical demands of working as a hair stylist, including prolonged
static standing as well as the need to have arms and shoulders in almost the
same position for long periods were not well suited to the plaintiff.  He
agreed that he did not observe any change in her speed of gait throughout the
day and said she did not show any sign of slowing her walk including walks up
and down hill.  He did say that he noticed frequent movement and fidgeting
while the plaintiff was seated at the lunch break.  He agreed with counsel for
the defendant that his views are not all pessimistic.  He agreed that there
were many things the plaintiff could do well.

[28]        
The plaintiff also attended for a vocational assessment by
Mr. Derek Nordin, a vocational rehabilitation consultant.  His office
conducted a battery of vocational aptitude tests and he met with the plaintiff
on June 9, 2014.  He did not directly supervise the tests but relied on the
scoring and observations of an assistant who administered the tests.  The
defendant objected to the admission of the observations of the test supervisor as
hearsay and based mostly on the plaintiff’s self-reports and I agree that the
observations can be given only little weight.  However, the tests are standard
psychological tests and the scores obtained are likely reliable.  I accept the
results as an accurate statement of the plaintiff’s performance on the tests.

[29]        
I also agree with the submission of defence counsel that Mr. Nordin’s
conclusions are based largely on the information he received from others such
as Mr. Kyi and the plaintiff.  He did not speak to any independent sources
to obtain information respecting the plaintiff’s abilities or capacity to perform
in other jobs.

[30]        
Mr. Nordin did make a recommendation that the plaintiff try to obtain
training or education to qualify for other types of employment.  At para. 78 of
his report he said:

Nonetheless, from a vocational
rehabilitation perspective, I still believe Ms. Crevier’s best option to
try to reduce at least some of the negative impact of her injuries on her
long-term vocational circumstances will be to get some training that provides
her with marketable skills so she can develop an alternate career path.

[31]        
As counsel for the defendant pointed out in his submission, Mr. Nordin
recognized the likelihood that the plaintiff would return to the workforce in
some capacity if not as a hairdresser.  The defendant also argued that the
plaintiff should have taken steps much sooner to seek some limited alternate
employment or to at least take steps to find opportunities for re-training.

Liability

[32]        
I will deal first with the issue of liability.  The plaintiff had been
following the defendant’s vehicle for a few minutes prior to the collision. 
There is nothing in the evidence to suggest she was following the defendant so
closely as to be unsafe.  She said that as they approached the Otter Point
intersection, the defendant slowed her vehicle and moved to the right.  The
plaintiff said the defendant did not signal any intention to turn.  The
defendant did not recall if she used her signal lights to indicate she intended
to make a turn, although she said she usually did.  She acknowledged that in
her statement to an insurance adjuster shortly after the collision she said she
did not signal.

[33]        
The plaintiff said that when the defendant moved to the right, the westbound
travel lane she was in was then clear and she began to move past the
defendant’s vehicle.  As she did so the defendant began a left turn directly in
front of her and the right front corner of her vehicle struck the left rear
corner of the defendant’s vehicle.

[34]        
The report of Mr. Johnathon Gough, a professional engineer who conducted
a collision analysis, indicates that the collision occurred at relatively low
speeds.  Clearly, the defendant’s vehicle was to the right of the plaintiff’s
vehicle and angled slightly towards the driver’s left in the early stage of a
left turn.

[35]        
The defendant did not see the plaintiff’s vehicle immediately behind her
when she began her turn to the left.  She said it is her usual practice to
conduct a shoulder check before such a manoeuvre.  It is not likely that the
defendant did look behind her before she commenced her turn as if she had, she
would have seen the plaintiff’s vehicle and delayed her turn until the
plaintiff passed.  Given the plaintiff’s evidence and the statement of the
defendant that she had not signalled her intention to turn, I find that she had
not signalled or checked behind her before starting to turn.

[36]        
There is a difference of opinion between the parties as to whether the
turn was a left turn or a “U” turn.  The defendant said that she was making a
left turn to the gravelled area in front of the post boxes.  Counsel for the
plaintiff submits that the turn was actually a “U” turn.  In my view it makes
little difference what type of turn the defendant was attempting.

[37]        
If a driver intends to turn left at an intersection, s. 165(2) of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318, requires that the driver move to the
left of the travelled portion of the road so that her vehicle is positioned
adjacent to the centre line of the road and then to execute the turn.  Section
168 says that a “U” turn or reverse turn must not be done unless it can
be done without interfering with other traffic.  Section 170 requires a
driver to signal her intention to turn before doing so.

[38]        
The defendant had the responsibility to do so safely whether she was
turning left or attempting a reverse turn.  If the defendant was turning left,
she should not have first moved to the right but instead positioned her vehicle
close to the centre line of West Coast Road.  If she was attempting a “U” turn,
she had an obligation to do so without interfering with other traffic.

[39]        
Thus, the primary responsibility is upon the defendant.  Given my
finding that the plaintiff was not following too closely behind the defendant
immediately before the collision, I find that the defendant bears greater
responsibility.  However, the plaintiff must share some responsibility in
overtaking the defendant’s vehicle.  She attempted to pass the defendant at the
intersection when she had seen the defendant’s vehicle slow in advance of the
intersection and then move slightly to the right without giving any signal.  In
my view she must share some responsibility for the collision by doing so.

[40]        
In Wiebe v. Greyhound Bus Lines of Canada, [1995] B.C.J. No. 2582
at para. 30, the court commented:

   In this case I
am of the view Mr. Biglow knew or ought to have known that the vehicle ahead of
him was going to do something yet had not seen a signal indicating what was
about to happen. He was aware that a move to the right could indicate
preparation to make a left turn for a vehicle of that length, and he had no
reason to believe that the vehicle was slowing down simply to let him pass.
Instead of following the truck and trailer until he knew what was going to
happen or at least sound his horn to ensure the driver ahead was aware of his
intention, Mr. Biglow passed immediately. I do not think that Mr. Biglow
was justified in making the assumption he did and pass without pausing for
sufficient time to determine what action the truck and trailer ahead was going
to take.

[41]        
In that case, the following driver was behind a long vehicle.  The
driver of the truck and trailer required a movement to the right to allow room
for a left turn but failed to signal.  The court divided liability 80% to the
truck driver and 20% to the overtaking driver.

[42]        
In this case the plaintiff was passing the defendant at an
intersection.  The defendant had moved to the right and slowed down which
caused the plaintiff to believe the defendant was going to turn right or stop so
the plaintiff started to pass her.  In my view the movement of the defendant’s
vehicle to the right without a signal should have caused the plaintiff to
proceed with greater caution.  While the plaintiff was passing a standard size
automobile and not a tractor trailer where arguably more caution was required,
she was overtaking the defendant at an intersection.  I find that the defendant
was negligent and primarily responsible for the collision.  I find that the
plaintiff contributed to the cause of the collision by her negligence in
attempting to pass the defendant vehicle without a clear indication of what the
defendant was doing.  I attribute fault in the collision 90% to the defendant
and 10% to the plaintiff.

Non-Pecuniary Damages

[43]        
The plaintiff and the defendant have significantly different views of
the appropriate amount of non-pecuniary damages.  The plaintiff submits that
the sum of $115,000 is appropriate and the defendant says damages under this
head should be $30,000.

[44]        
The plaintiff says that she was 22 years old when the collision
happened.  She says that she has experienced significant pain since that time
and argues that she will likely have pain to some degree for the rest of her
life.  She also says that the pain she has experienced has impacted her ability
to work and to participate in her normal recreational activities.  She says
that the pain has affected her in all aspects of her life, including her social
and marital life.

[45]        
The defendant submits that the evidence does not support an award as large
as the plaintiff seeks.  She argues that the evidence from the plaintiff’s
friend Andrea Martin discloses very little by way of observations of the
impact of the injuries on the plaintiff.  She makes the same submission with
respect to Robert Dermott, the plaintiff’s boyfriend and now her husband. 
The defendant says that other that some minor observations of wincing and
reaction to pain, there was little in the way of actual detail.

[46]        
The defendant also points to the fact that the family was able to take a
camping trip to Alberta with Mr. Dermott’s parents in their recreational
vehicle.  The plaintiff and Mr. Dermott slept in a tent for most of two weeks. 
They also travelled to Cuba in 2014.

[47]        
Ms. Martin said that the plaintiff was a bridesmaid for her at her
wedding in Mexico in 2013 and that she went camping with the plaintiff once in
2013.  Finally, the defendant argued that a series of photographs taken from a
social website indicate that the plaintiff was active and able to engage in
recreational activities in the summer of 2011, just a few months after the
accident.

[48]        
The photographs depict the plaintiff at a cottage at Christina Lake in
the interior of Southern British Columbia.  The photographs show the plaintiff
in various poses, in all cases looking relaxed and comfortable.  One photograph
shows her and a friend leaning over a ledge or roof with their arms hanging
loosely down below their heads.  Another shows her in a pose where she appears
to be hanging by her arms and held by a friend.  In that photo it appears that
she has at least some weight on her arms and shoulders and her arms are
extended directly above her head and she is holding onto her friend’s hands. 
The plaintiff explained that she was not actually hanging by her arms but just
posing as though she was.

[49]        
There is also a photograph of her using a two-wheeled cart loaded with a
large cooler and a plastic box containing what appears to be drinks.  Her arms
are fully extended and it appears that she is pulling at least some weight,
although she said the load was very light.  She is depicted in other photos
jumping into the lake with one of her arms raised fully above her head;
standing on her left leg on a dock with her right leg extended to her right
side and her arms fully extended to the sides at shoulder height.

[50]        
She was also photographed sitting on an inflatable water device that is
designed to be towed behind a boat or seadoo.  She agreed that she had
participated in that activity but only once and with pain.  The photos are of
significance because they show the plaintiff looking very relaxed and mobile
within just a few months of the collision.  For her part she said that was a
relatively brief trip of about a week and that she experienced considerable pain
after any of the activities.

[51]        
The plaintiff referred to Lindal v. Lindal, [1981] 2 SCR 629 at p.
637 for the principle that lies behind an award of non-pecuniary damages:

  Thus the amount of an
award for non-pecuniary damage should not depend alone upon the seriousness of
the injury but upon its ability to ameliorate the condition of the victim
considering his or her particular situation. It therefore will not follow that
in considering what part of the maximum should be awarded the gravity of the
injury alone will be determinative. An appreciation of the individual’s loss is
the key and the "need for solace will not necessarily correlate with the
seriousness of the injury" (Cooper-Stephenson and Saunders, Personal
Injury Damages in Canada (1981), at p. 373). In dealing with an award of this
nature it will be impossible to develop a "tariff". An award will
vary in each case "to meet the specific circumstances of the individual
case" (Thornton at p. 284 of S.C.R.).

[52]        
That passage was quoted with approval in Stapely v. Hejslet, 2006
BCCA 34, where the court set out what was referred to as an “inexhaustive list
of common factors that influence an award of non-pecuniary damages.”  That list
included the following:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

g) impairment of family, marital and social
relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism
(as a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

[53]        
The plaintiff submits that she was very young at the time of the
collision and will likely have some pain for the remainder of her life.  She
says that she experiences daily pain of an intensity that varies depending on
her level of activity.  She says that she is limited in her ability to do
certain things.  She says she cannot hold her arms out in front of her for any
extended period; stand in the same position for long periods or tolerate any
bumps or jars to her back, all of which she says are part of a hairdresser’s
daily work.  She also says that she has suffered emotionally and her relationships
with her husband and her friends have been damaged.

[54]        
Counsel for the plaintiff referred to several cases where the award for
non-pecuniary damages was in the range of $100,000.  In Olson v. Ironside, 2012
BCSC 546, the court awarded $100,000 to a plaintiff who was a 19-year-old cook suffering
from chronic soft tissue injuries, headaches, as well as other injuries.  She
was found to be a highly credible witness and the court commented that the
injuries had a “dramatic” effect on her life.  The plaintiff submits this case
is very similar to her case.

[55]        
In Shapiro v. Dailey, 2010 BCSC 770, the plaintiff was struck
with what the court said was “considerable force” by a vehicle that ran a red
light while she was making a left turn on an advanced green light.  She
suffered significant injuries which on my reading of the reasons for judgment
were more serious than the injuries suffered by the plaintiff.  The court
awarded $110,000 for non-pecuniary damages.

[56]        
The case of Verge v. Chan, 2012 BCSC 876, was also a more serious
collision with injuries to the plaintiff that included a broken ankle, injuries
to her neck and back and bruising to her chest.  She had pain in her left
shoulder, both knees hip and wrist.  The collision was described as a head-on
collision.  The plaintiff also suffered chronic pain, headaches and sleep
disturbance, as well as emotional difficulties.  The court awarded $125,000 for
non-pecuniary damages.

[57]        
In Eccleston v. Dresen, 2009 BCSC 332, the court awarded $112,000
for non-pecuniary damages.  The plaintiff’s vehicle was hit from behind while
she was waiting to turn left at an intersection.  The plaintiff had a
pre-disposition to depression, and six years post-accident the plaintiff had
major depressive disorder and chronic pain.  The court found that the
collateral evidence in support of the plaintiff contributed to the finding of
the court that the plaintiff was a credible witness and that her injuries had
affected virtually every aspect of her life.

[58]        
Finally, in MacKenzie v. Rogalasky, 2011 BCSC 54, the court
awarded $115,000 in non-pecuniary damages to a 33-year-old chef who had
suffered injuries as a result of a collision that occurred when the defendant
turned into the path of the plaintiff’s vehicle.  The plaintiff suffered
moderate soft tissue injuries to his neck shoulders, mid-back and lower back. 
He returned to work but he could not continue.  The symptoms and treatment were
similar to the complaints of the plaintiff.  The plaintiff’s evidence in MacKenzie
v. Rogalasky was well supported by medical evidence and by friends and
colleagues from his workplace.

[59]        
The defendant referred to Bansi v. Pye, 2012 BCSC 556 at paras.
45 and 46.  The court discussed the principles respecting the assessment of
non-pecuniary damages in Stapley v. Hejslet, and emphasized that in
assessing non-pecuniary damages the court must consider not only the injuries
suffered but also the effect of those injuries on the lifestyle and personality
of each plaintiff.

[60]        
The defendant referred to Olianka v. Spagnol, 2011 BCSC 1013,
where the court awarded $30,000 to a 50-year-old man who had suffered soft
tissue injuries to his neck and back and could not return to his physically
demanding work as a building inspector. Similar awards for non-pecuniary
damages were made in Rosso v. Balubal, 2014 BCSC 1786, where the court
awarded $20,000; Singh v. Shergill, 2010 BCSC 323, where the court
awarded a 55-year-old man $40,000, and Rozendaal v. Landingin, 2013 BCSC
24, where the award was also $40,000 to a 28-year-old female.  In each of those
cases the plaintiffs suffered soft tissue injuries similar to the plaintiff.

[61]        
One of the issues raised by the defendant is the credibility of the
plaintiff.  Counsel for the defendant emphasized the activities of camping and
travel to Mexico and Cuba as well as the clear impression derived from the
photographs of the plaintiff at Christina Lake referred to above.  Defence
counsel also argued that there has been little effort by the plaintiff to find
any work since the accident or to try and retrain for another line of work.

[62]        
Defence counsel also noted that the medical evidence of the plaintiff’s
family doctor was not tendered as expert opinion evidence and cannot be relied
upon for any opinion as to the plaintiff’s prognosis.  He also noted that Dr.
MacKean and Dr. Deutscher noted very little limit to the range of motion
of the plaintiff’s back, shoulders, neck and hips.

[63]        
The defendant submitted that much of the material is based upon the
plaintiff’s subjective complaints and the limited evidence of her husband
Rob Dermott and her friend Andrea Martin.  He also noted the absence of
any testimony from the plaintiff’s mother who had regular contact with the
plaintiff and was someone who might be expected to provide positive evidence in
support of her claim.

[64]        
Certainly, the photographs are troubling as they provide an image of a
relaxed and happy young woman who does not appear from the photographs to have
any restriction in movement or to be experiencing any pain.

[65]        
I find some merit in the submissions made by the defendant’s counsel.  I
find that while the plaintiff did suffer injuries and that she has experienced and
still does suffer from some pain and limit in movement, the effect of those
injuries upon her life and work is not as great as she claims.  I accept that
she still has pain and that it will likely continue in the future.  I also
accept that it will cause some interference in her enjoyment of life.  However,
I do not accept that it is pain that justifies an award at the upper end of the
range suggested.  I award the sum of $65,000 on account of non-pecuniary
damages.

Loss of Past and Future
Income

[66]        
The plaintiff had been employed at Fish Salon for about 18 months at the
time of the collision.  She was not yet fully established in her career or her
position at Fish.  She was still on regular part-time status working between 20
and 30 hours each week.  Her pay was at the minimum wage level and she had some
potential to earn commissions in addition to her pay.  It appears she earned
$889 in commissions in 2010.

[67]        
The salon operated on a system of “levels” of employment with the lowest
or entry level at level 1.  The plaintiff said in her evidence that she thought
she was a level 3 stylist.  It is not clear how many levels there were at the
salon at that time but Ms. Yasmin Morris, who was a witness for the
plaintiff and who was employed at the salon at the same time as the plaintiff, was
at level 11.  Ms. Morris said that the plaintiff was, in fact, a level 1
stylist.

[68]        
The plaintiff does not have an extensive history of employment.  She
worked at several part-time jobs while she was at school or during the summer
school breaks.  Following graduation from high school in June 2006, she
continued at Malaspina College in its hairdressing program.  She graduated with
a certificate in hairdressing in December 2006.  Prior to commencing her
employment at Fish Salon the plaintiff worked at a salon in Langford for about
one year and following that she worked briefly for another salon in Sooke.  She
did not particularly like either salon as she saw them as “dead end” positions
in salons where training was not a priority.  She said that Fish Salon was
progressive and at the “high-end” of salons in Victoria.  There were frequent
training sessions and a number of experienced stylists who could offer guidance
to her.

[69]        
Ms. Morris did not act as a supervisor to the plaintiff, nor did she
conduct any performance reviews.  She did say that the plaintiff seemed keen to
learn and work as a stylist.  She said that the plaintiff’s duties were to
assist the stylists and to ensure that everything they needed to perform their
work was ready and available to them.  Her job included making tea or coffee,
sweeping floors and assisting with hair drying.

[70]        
As new stylists progress they are able to have more time “on the floor”
which means dealing in a more complete way with clients of the salon and to try
to sell products that were available for purchase.  It is only through dealing
with their own clients or the sale of products that an employee is able to earn
commissions in addition to salary.

[71]        
The salary the plaintiff received while she worked at Fish was the
minimum wage.  The minimum wage rate in 2009 was $8.00 per hour.  It was raised
to $8.75 per hour in May 2011, to $9.50 per hour in November 2011, and to
$10.25 per hour in May of 2012.

[72]        
The plaintiff was working regular part-time hours of about 20 to 30
hours each month.  Most days she worked for approximately six to seven hours
but there are a few days she worked between eight and nine hours.  While there
is no formal evidence of how well she was regarded by her employer or
colleagues, an inference can be drawn that her level of proficiency was at
least satisfactory.  As Ms. Morris noted in her evidence, the plaintiff
was kept on after the three-month probationary period and not all of the new
employees were retained at the end of the probationary period.

[73]        
The plaintiff’s income was not high for any of her working years.  Her
income tax returns reveal that in 2008 she earned $6,337; in 2009 she earned
$4,904; and in $2010 she earned $16,033.  Her 2010 income included commissions
earned of $889 plus other employment income from other part-time work.  It
appears that she earned $13,225.74 from her work at Fish.  In 2011 she earned a
total of $3,900, all of it from Fish.  She earned only $324 in 2012.  There
were no further tax returns in evidence.

[74]        
The plaintiff called Ms. Morris to provide evidence of what she could
have earned but for her injuries.  Ms. Morris has been a hair stylist since
1998 and as part of her training she served a full two-year apprenticeship and
was then qualified to a United States standard as specialist in colour.  She
had worked at Fish for five years at the time she gave her evidence.  Her work
at Fish was as a colourist and store manager.  She did the colouring of
clients’ hair and performed training but she did not cut hair.  She also has
responsibility in the areas of management and promotion of Fish.

[75]        
Ms. Morris said that she earns approximately $60,000 per year as a
level 11 stylist with approximately 14 years of experience.  She said that
once a stylist reaches a certain level and is regularly dealing with clients,
then they are paid on straight commission.  Usually the first level is that the
stylist receives 40% of revenue, then after a further period of time that
percentage increases to 45%.

[76]        
In April 2011 a junior stylist worked six to eight hour shifts with
occasional overtime if the person she is assisting works late.  A junior stylist
must stay late if required and there is a lot of fluctuation in the daily
routine.  If a stylist wants to progress, it is necessary to work as many hours
as possible.

[77]        
The plaintiff argues that as a result of her injuries she will never be
able to work full-time again and that because of her education and skills she
is not likely to earn much above minimum wage level for the rest of her life. 
She argues that her monthly salary would have risen to $3,000 per month by the
time this trial commenced in October 2014, and that she would have earned
$5,000 per month five years later.

[78]        
However, there is no evidence the plaintiff would have progressed at
that rate or that she would have been able to remain working at Fish.  There is
no doubt that she enjoyed her work there and Ms. Morris felt she put strong
effort into her work, although as Dr. Vally’s records indicate there was some
suggestion of work-related anxiety in 2010 when the plaintiff was employed at
Fish.

[79]        
There is no evidence from the owner of the salon or even from a
supervisor of the plaintiff to indicate how well she performed her work or what
her potential was.  Ms. Morris did say that performance reviews were done
at Fish but, in this case, there is no evidence as to whether the plaintiff was
subjected to performance reviews during her time at Fish.

[80]        
While I accept that it is possible to earn an income in the $60,000
range as a hair stylist, the evidence establishes only that Ms. Morris was
earning that level of income after significant experience and training.  There
is no evidence to show that level of income is the norm or even that it is
common for hair stylists to earn that level of income.  The plaintiff may have
hoped to earn at that level at some point in her career but there is no
evidence to show that it was likely that she ever would.

[81]        
Mr. Benning opined that if, based on the assumptions he was asked to
make that the plaintiff’s earnings would have risen first to $3,000 by the
commencement of the trial and then to $5,000 per month five years later, she
would have experienced a past loss of income of $66,659 and a future loss of
income of $747,125.  However, there is nothing other than speculation to
suggest that the plaintiff could have been earning $5,000 per month within five
years of the trial or, for that matter, $3,000 by the time the trial began in
October 2014.  It is to be noted that Ms. Morris is a well-qualified stylist
with long experience.

[82]        
The plaintiff does not have a long history of employment or, for that matter,
a steady one.  Fish was her first long-term employment and she had only worked
there for about eighteen months.  It cannot be simply assumed that the
plaintiff will follow the same pattern as Ms. Morris.  There is no evidence to
suggest that $5,000 per month or even $3,000 per month is a typical wage level for
a hair stylist on Vancouver Island.  The plaintiff simply has not proven a
work history that is consistent with the assumptions.

Past Wage Loss

[83]        
Mr. Denning attributes a past income loss of $66,659 for the years 2011
to 2014 inclusive.  He assumed that the plaintiff’s income of 2010 was a base
income that would have gradually increased her earnings from the 2010 level of
$16,033 to an adjusted income in 2014 of $23,369 which he reduced to $19,276
because the date the trial commenced did not allow for a full year.  He reduced
the loss by reducing it in recognition of income the plaintiff actually earned
in 2011 of $5,289 and by $407 in 2012.

[84]        
However, as noted, the plaintiff really only earned $13, 255.74 from her
employment at Fish; the remainder came from another source.  The monthly income
from Fish before taxes is $1,102.15.  Had she continued to work at Fish she
likely would have had some increase in her income.  However, it should be
remembered that she was only working between 20 to 30 hours each week and at
level one the base salary was minimum wage.

[85]        
The defendant submits that on the evidence, the plaintiff is now and has
been capable of some work.  She argues that the plaintiff made no effort to try
and work between the date of the collision and the trial.  The defendant notes
that the plaintiff was able to travel to Christina Lake in the summer of 2011,
not long after the accident, where the photos in evidence suggest she was able
to do many things that she claimed unable to do.  The defendant also submits
that the objective findings set out in the medical evidence presented by the
plaintiff are in many ways inconsistent with her complaints.  In particular,
the defendant notes that the plaintiff enjoyed full or almost full range of
motion without pain in the areas of her injuries during that time.

[86]        
While there is certainly some merit in the defendant’s submissions, I
find that but for the injuries she received in the collision, she would have continued
to work at Fish and would likely have increased her income to some degree.  I
find that she would have continued to earn income from Fish in the range of $1,100
to $1,500 per month.  I find that the plaintiff would likely have earned an
annual income of approximately $1,250 per month or $15,000 per year for the
years 2011 – 2014.

[87]        
Following Mr. Benning’s adjustments for income actually earned in 2011,
I reduce that year’s income by $5,289 leaving a loss for 2011 of $9,711.  I
also find that it is reasonable to attribute some income to her for each of the
following years up to the end of 2014.  I find, in light of the evidence, that
she was capable of earning a similar amount of $5,000 in each of the other
years and I will therefore reduce her income loss to $10,000 for the years
2012, 2013 and 2014.  Therefore her past income loss is allowed at $39,711.

Future Loss of Income

[88]        
The plaintiff submitted the reports of Mr. Benning to establish the
plaintiff’s future loss of income.  Mr. Benning based his findings on
assumptions that he was asked to make by the plaintiff’s counsel. 
Specifically, he was asked to assume that but for the injuries she received in
the collision, the plaintiff would have continued to work as a hairdresser
until she was 65 years of age.  As to income, Mr. Benning was asked to assume
that she would have increased her earnings to $3,000 per month as of the
commencement of the trial date in October 2014 and would have stayed at that
rate for the next five years.

[89]        
After five years from October 2014, Mr. Benning was asked to assume that
the plaintiff would have earned $5,000 per month to her retirement.  His
calculations result in a future wage loss of $747,125.

[90]        
Plaintiff’s counsel referred to the law in this area as summarized by
Dardi J. in Sandher v. Hogg, 2010 BCSC 1152 at paras. 87-90.  The
principles that emerge are that the plaintiff should be put in the position she
would have been in but for the defendant’s negligence: Lines v. W.& D.
Logging Co. Ltd., 2009 BCCA 106 at para. 185.  The plaintiff must
demonstrate impairment to her earning capacity and show that there is a real
and substantial possibility that she will suffer a pecuniary loss.  The court
must endeavour to quantify the financial harm to the plaintiff over the course
of her working career.

[91]        
A future loss of income may be quantified by an earnings approach or a
capital asset approach.  The earnings approach will be more useful when the
loss can be easily measured and the capital asset approach will be more useful
when the loss is not easily measured. Peren v. Lalari, 2010 BCCA 140 at
paras. 25-32.

[92]        
In this case, I find the capital asset approach to be appropriate
because the plaintiff had no history of full employment and she was not yet
fully established in her position at Fish at the time of the collision.

[93]        
I also find that the income figures assumed by Mr. Benning are not
supported by the evidence.  There is no doubt that some hairdressers can earn
incomes in the $60,000 range; clearly Ms. Morris is one of them.  However, she
is well experienced and well trained.  I suspect that she and others like her
are capable of earning significant incomes.  However, the plaintiff had not
achieved anything close to the experience and training of Ms. Morris.

[94]        
The plaintiff no doubt hoped to do well, but hope and achievement are
very different.  There is no pattern of behaviour of the plaintiff to establish
that it was likely she would progress as a stylist in the way she hoped.  It is
therefore not appropriate to calculate a loss of future income on assumptions
that cannot be connected to the plaintiff.  To accept the assumptions advanced
by the plaintiff and used by Mr. Benning in his calculations runs contrary
to the principle in Perren v. Lalari at para. 30 that a future or
hypothetical possibility will only be taken into account “…if it is a real and
substantial possibility and not mere speculation”.

[95]        
I also find on the evidence that the plaintiff will likely return to the
workforce in some capacity.  At the time of the collision she had only basic
education and experience as a hair stylist.  Dr. Deutscher is of the opinion
that vocation is not necessarily closed to her.  I find that she can function
reasonably well but that she will likely have some pain in the future that will
interfere with her ability to earn income.

[96]        
In Brown v. Golaiy, [1985] B.C.J. No. 31, Finch J. set out
the requirements to establish a loss of future earning capacity at para. 8:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1. The plaintiff has been
rendered less capable overall from earning income from all types of employment;

2. the plaintiff is less
marketable or attractive as an employee to potential employers;

3. the plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a
person capable of earning income in a competitive labour market.

[97]        
I find that the plaintiff has established all of the requirements to
establish a loss of future earning capacity as she will likely experience some
pain in her neck and back for the remainder of her working life that will
impact her marketability as an employee and limit the opportunities for
employment that might otherwise have been open to her.  As counsel for the
plaintiff noted, the plaintiff does not appear to be academically inclined and
she may not be attracted to or be well suited to many of the more sedentary
jobs that are open to her.

[98]        
Based on the evidence presented, an award of $175,000 is appropriate
under this head of damages.

Cost of Future Care

[99]        
The plaintiff submits that the sum of $80,000 should be awarded for the
plaintiff’s loss in this category.  She bases that figure on the opinions of
Dr. MacKean and Mr. Kyi.  She submits that in Dr. Mackean’s opinion she
should have continued access to physiotherapy and intramuscular stimulation
twice a month so long as it provides relief for her neck and upper back
symptoms.  Dr. MacKean also recommends that she continue with a gym
program and pool exercises.

[100]     Mr. Kyi
was also of the opinion that the plaintiff should make active exercise a part
of her life-long routine.  Mr. Benning calculated the cost of future care at
$44,576 in his report.  The costs he was asked to include were a gym membership
at $486 per year, a personal trainer at $60 per hour for 12 sessions per year, along
with a back support and an orthopaedic pillow to be renewed every three to five
years.  However the plaintiff says that figure did not include continued
bi-weekly access to intramuscular stimulation and a person trainer.  Adding
those costs, as well as an Obusforme high-back support every four years and an
orthopaedic pillow, the plaintiff calculates a cost of future care of
$133,676.39 which was reduced to the all-inclusive claim of $80,000.

[101]    
The plaintiff also claims compensation for lost housekeeping capacity in
the amount of $30,000 based on the authority of McTavish v. MacGillivray, 2000 BCCA 164. 
In that case the court found that the plaintiff was:

 … no longer able to perform
any household services involving lifting or carrying even moderately heavy
objects or stretching, bending over or leaning over. As a result, he found
vacuuming, much of the cooking, much of the laundry, cleaning of dishes,
removal of garbage, sweeping and washing floors, lifting, loading and unloading
the car while shopping and outside activities to do with the garden and with
the family’s dogs to have been curtailed. He concluded that her ability to do
housework was now very limited, that it was necessary for her husband and one
of her sons to take over or supplement the work that she formerly did. The
trial judge also held that the respondent would have incurred some expenses had
her husband, her son and the son’s girlfriend not performed the tasks that she
was not able to perform following the accidents. He assessed the value of her
loss of housekeeping capacity, past and future, by reference to the cost of
replacement services at $10.00 per hour for 10 hours each week until the age of
60. After that age, he assumed the respondent would be able to perform what
services she then needed by herself.

[102]     The findings
of the court in McTavish v. MacGillivray go well beyond the evidence in
this case.  Similar findings to those in McTavish were found on the
evidence in Kroeker v. Jansen, [1995] B.C.J. 724 (C.A.).

[103]     The
defendant points out that there is no evidence that the plaintiff has ever
hired anyone to assist her with housework or that there has been any need to. 
The evidence indicates that her condition is slowly improving and she shares a
residence with her husband.  Simply put, the evidence presented in this case
does not justify an award for lost housekeeping capacity and that aspect of the
plaintiff’s claim is dismissed.

[104]     The
defendant also submits that it should not be the defendant’s responsibility to
provide a “permanent endless gym pass” for the plaintiff given the evidence in
this case.  She submits that an appropriate award is the cost of a gym pass and
trainer for twelve to eighteen months in the approximate amount of $1,200.

[105]     Defendant’s
counsel referred to Peters v. Ortner, 2013 BCSC 1861, where the test for
an award under this head of damage was summarized at paras. 141-145.  The test
is an objective one based on the medical evidence and there must be a medical
justification for the award and the claims must also be reasonable.  Such costs
can be justified if they are “medically necessary and likely to be incurred by
the plaintiff”.

[106]     The
authorities are clear in stating that the future care for which an award is
made must relate to health needs and not just to add to the plaintiff’s
enjoyment of life: Jacobsen v. Nike Canada Ltd., [1996] B.C.J. No. 363
at paras. 181-182.

[107]     I accept
that the plaintiff will continue to need some physiotherapy and exercise
therapy with a personal trainer and that she will benefit from both for the
next few years.  Given that there were findings by both Dr. MacKean and
Dr. Deutscher that she had close to full range of motion of her back, neck
and shoulders at the time of examination in 2014 and that she has made further
improvement since then, I am not satisfied that she will need or use those
benefits for the rest of her life.  In my view a period of five years is a
reasonable time to award those costs.

[108]     It is not
possible to be precise in this aspect of her claim but using the multiplier
provided by Mr. Benning in his report, I find that the plaintiff is likely to
medically need and utilize future care costs of $15,000 and I award that
amount.

Special Damages

[109]     There is
not a significant disagreement between the parties on this head of damage.  The
plaintiff seeks $6,806.53 as special damages.  The defendant says that she is
entitled to $6,211.24.  The difference appears to be the cost of gym running
shoes at a cost of $123.19 and the defendant’s submission that mileage claimed
should not be allowed.  I agree with the defendant that the running shoes are
not justified, and find that mileage can be charged but at the rate provided in
the Rules of 30¢
per kilometre.  I therefore award the sum of $6,391.75.

Summary

[110]     I find the
defendant to be 90% at fault for the collision and the plaintiff 10%.  The
plaintiff is awarded damages as follows:

Non-Pecuniary
Damages                       $  65,000

Past Income Loss                                 $
39,711

Loss of Future
Earning Capacity            $175,000

Cost of Future
Care                               $  15,000

Special Damages $ 
6,391

Total                                                    $301,102

[111]     The award
will be adjusted in the usual way respecting the plaintiff’s contributory
negligence.  Subject to any issue arising, the plaintiff is entitled to her
costs.

                   “J.K.
Bracken, J.”            

The
Honourable Mr. Justice Bracken