IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160212

Docket: 100990

Registry:
Kelowna

Between:

Tania Elizabeth
Olson

Plaintiff

And

Linda Yelland

Defendant

Before:
The Honourable Mr. Justice G.P. Weatherill

Reasons for Judgment

Introduction

[1]            
This case involves an assessment of damages relating to injuries
sustained by the plaintiff on August 3, 2012, when the truck she was driving
was rear-ended by the vehicle driven by the defendant (“Accident”).

[2]            
Liability for the Accident has been admitted on behalf of the defendant.

[3]            
The Accident was the second injury the plaintiff suffered in 2012. It
occurred only a few months after the plaintiff was injured at her workplace
(“Work Injury”). There are no liability issues arising from the Work Injury,
but it is an important factual incident as it has impacted the plaintiff’s
current physical abilities.

[4]            
The plaintiff seeks general damages, special damages, past loss of
income, future loss of earning capacity, future care costs and loss of past and
future housekeeping capacity.

[5]            
The defendant admits that the plaintiff sustained soft tissue type injuries
in the Accident but says she was functionally limited by pre-Accident medical
issues involving her low back and left knee and argues that the plaintiff
should not be placed in a better position than she would have been in had the
Accident not occurred.

Background

[6]            
The plaintiff is 44 years of age and has resided in the Kelowna area
since April 2008. She has a son who is currently age 21. She is one credit
short of completing her grade 12 education.

[7]            
In 1996, the plaintiff was living in Zama, Alberta, where she started
her own merchandising company known as “Coconut Joe’s”, selling safety clothing
for the construction industry. Between 1996 and 2008 she operated Coconut Joe’s
in Zama, Rainbow Lake, Alberta and High River, Alberta. In 2008, she moved to
the West Kelowna, British Columbia area and attempted to continue Coconut Joe’s
there.

[8]            
The West Kelowna Coconut Joe’s operation was financially unsuccessful and
the plaintiff had to close it in September 2011. The plaintiff declared
bankruptcy.

[9]            
In December 2011, the plaintiff obtained employment as a sales clerk for
“Open Road” a division of Boutique of Leathers Ltd., a merchandiser of heavy-duty
leather motorcycle accessories and clothing in the Kelowna area. She liked the
job and enjoyed working there.

[10]        
In March 2012, she was promoted to store manager. Her duties included
maintaining the store, merchandising, unloading freight, stocking shelves, retail
sales, running the till and computer work. These duties required her to stand most
of her working day and to kneel six to seven times per day. She typically worked
a 40 hour week.

[11]        
She was paid $2,400 per month plus bonuses of between $200 and $300
every few weeks.

[12]        
On April 28, 2012, the plaintiff suffered the Work Injury. She was
helping a customer with a pair of boots and was kneeling beside shelves when a
shelf and pole gave away and fell on her. She injured her lower back in the
process. She also injured her left shoulder area, but that injury was minor by
comparison.

The Plaintiff’s Pre-Accident Health

[13]        
The plaintiff’s pre-Accident health issues relate, in particular, to her
left knee and low back. The left knee had been an issue for approximately 25
years before the Accident and the Work Injury.

[14]        
The plaintiff was involved in competitive figure skating until the age
of 16, when she injured her left knee while skiing.

[15]        
The left knee injury required two exploratory laparoscopies, followed by
major surgery where tendons from her thigh were used to rebuild the knee. The
result was a functional but slowly degenerating joint that periodically
requires the use of a Generation II brace for stability.

[16]        
The plaintiff’s low back problems also predate the Work Injury and the
Accident. Before moving to BC from Alberta, the plaintiff frequented chiropractic
treatment for spinal adjustments, mostly related to low back issues.

[17]        
In early 2010, the plaintiff discovered that one of her Alberta
chiropractors, Dr. Thompson, had moved to the Kelowna area. She booked an
appointment with him on February 25, 2010. She filled out a patient intake form,
stating that she had hurt her lower back that day picking something off the
floor. She also stated that she had previous back pain and that she got
headaches and neck pain on a weekly basis.

[18]        
Dr. Thompson gave her regular treatments until November 2010, when
she stopped attending.

[19]        
On April 2, 2012, weeks before the Work Injury, the plaintiff saw Dr. Monteleone
on referral from her family doctor for her left knee issues. She told him that the
knee continued to cause pain, instability, stiffness and swelling. She saw Dr. Monteleone
again on April 23, 2012, who had by then received and reviewed her left knee
radiographs. They disclosed degenerative changes. He felt she would need knee
replacement surgery in the future. In order to delay knee replacement surgery
as long as possible, she was to follow up with him for knee injections.
However, Dr. Monteleone did not see the plaintiff again until October 1,
2012, some two months post-Accident.

[20]        
The Work Injury occurred on April 28, 2012. Although still symptomatic,
she returned to her work duties two days later, expecting her symptoms to
gradually resolve.

[21]        
In early July 2012, her doctor told her that a disc in her low back was
torn and she needed to quit work. He referred her to a neurosurgeon for follow-up.
Her last day at work was July 9, 2012.

[22]        
The plaintiff filed a WorkSafe BC claim. WorkSafe BC enrolled her in an
occupational rehabilitation program that was to begin on August 16, 2012, at
LifeMark Health Center (“LifeMark”). However, the Accident occurred and the
initial LifeMark assessment did not take place until September 25, 2012.

The Accident

[23]        
On August 3, 2012, the plaintiff was returning home after dropping her
son and his friends off. Traffic was heavy. While stopped in traffic, her truck
was rear-ended by the defendant’s vehicle. The plaintiff had no warning her
truck was about to be hit.

[24]        
She recalls facing forward with her foot on the brake at the time of
impact. The impact twisted her body to the right. She believes her left
shoulder hit the steering wheel and her left knee hit the dash.

[25]        
The plaintiff was able to exit her truck and drive it home. She saw extensive
damage to the defendant’s vehicle. She saw no skid marks or other indications
that the defendant made any attempt to stop.

[26]        
The following day, the plaintiff saw a doctor at a walk-in clinic. She
was given medications and told to follow-up with her family doctor.

The Plaintiff’s Injuries

[27]        
The plaintiff says that the Accident caused soft tissue injuries to her
neck, left shoulder, mid-back and aggravated her left knee symptoms. She claims
her injuries have developed into a chronic pain condition and have caused bouts
of depression.

[28]        
On August 13, 2012, the plaintiff saw Dr. Verwey at a walk-in
clinic. His chart notes indicate that she complained of pain in her neck,
mid-back and trapezius muscles on both sides. X-rays were ordered. There is no
indication of left knee complaints.

[29]        
Her next medical assessment was at LifeMark on September 25, 2012. At
that time, she reported bi-lateral low back pain, buttock pain, pain down her left
leg and left knee pain. She felt she had recovered to approximately 40% of her
pre-Work Injury status, but still reported pain in the range of 8-9 out of 10,
with 10 being described as the worst possible pain. She reported feeling
stressed, guilty, irritable, quick to anger and frustrated. She was having a
difficult time coping. She was afraid of re-injury.

[30]        
She participated in LifeMark’s six week occupational rehabilitation program,
which related to the Work Injury. She was discharged on November 2, 2012.
LifeMark reported that her participation in the rehabilitation program was
significantly limited by pain. On discharge, no graduated return to work plan
was recommended because she did not make sufficient functional progress. She
reported to LifeMark’s program manager that in addition to her low back and
knee pain, her neck and shoulders continued to be sore and painful at the end
of each day. She reported a decreased sensation in her left foot and increased
left knee pain since starting the rehabilitation program.

[31]        
In LifeMark’s view, the plaintiff was not fit to return to work. Low
back injections and a home exercise program were recommended. If the injections
provided her with sufficient relief, a reassessment was recommended.

[32]        
WorkSafe BC arranged for the back injections. The first round of
injections occurred in early December 2012, and seemed to work. She noted the
pressure in her leg had resolved as had the shooting pains into her leg. The
second round of injections occurred two weeks later. They made her low back
symptoms worse.

[33]        
The plaintiff testified that since the Accident, she has had neck pain,
pain in her mid-back, constant migraine headaches, dizziness, nausea, fatigue and
a swollen and painful left knee. Her headaches are much different than the
stress-type headaches she had before the Accident, which always went away. She
now gets headaches about twice per week, and they sometimes make her nauseous.
For relief she sees Dr. Thompson.

[34]        
Her dizziness seems to be triggered by turning her head. It feels to her
like a nerve in her neck is pinched. She had ringing in her ears for a short
time after the Accident.

[35]        
She describes her neck pain as severe. She feels like she has a “bobble-head”,
meaning it feels like her head isn’t attached correctly. She is constantly
trying to fix her posture to stop the neck pain.

[36]        
She says that the Accident triggered tingling and numbness in her left
arm that lasted a few months. Now the pain is in her shoulder and does not go
past her elbow.

[37]        
Her mid-back pain is more of a periodic discomfort. She is constantly
pulling her shoulders back to relieve the pain. Chiropractic manipulations seem
to relieve the pain for a few days.

[38]        
She testified that her low back pain is now much better. She doesn’t
have any pain down her left leg, although her left hip continues to feel
“twisted”. She has not had sciatic pain for quite some time.

[39]        
Sleep continues to be an issue for the plaintiff and she is constantly fatigued.
She is only able to sleep a few hours at a time because of the pain. She does
not believe she has been able to sleep for four hours straight since the Accident.

[40]        
She says she felt depressed following the Work Injury. She was worried
about re-injuring herself. Following the Accident, her depression was much
worse. She was worried she would not be able to take care of herself or her son.

[41]        
She says her Accident injuries significantly affect her day-to-day
functions. She has trouble standing, walking, using stairs, bending, stooping and
reaching. She describes her post-Accident pain as “you’re not going anywhere
type of pain”, which means the pain is so intense she has to stay home.

[42]        
Other than regular and ongoing chiropractic adjustments, prescription
medications, the use of heat, ice, a neck orthotic and attending a chronic pain
clinic one month before trial, the plaintiff has had no treatments for her
Accident injuries.

Witnesses

[43]        
Save for the experts called by both sides, the plaintiff was the only
witness.

The Experts

i.        Dr. Nairn Stewart

[44]        
Dr. Stewart is a physiatrist who assessed the plaintiff at her
counsel’s behest on July 15, 2014. Prior to the assessment, the plaintiff says
she took Flexeril and pain killers as part of her usual morning routine.

[45]        
Dr. Stewart’s report is dated September 13, 2014, and was filed in
evidence. She also testified.

[46]        
Dr. Stewart’s opinion is that the plaintiff’s current and ongoing
limitations relate to both the Work Injury and the Accident.

[47]        
The Work Injury caused structural damage to the plaintiff’s low back. It
caused a permanent restriction to the plaintiff’s ability to perform physically
demanding work.

[48]        
Dr. Stewart opined that the Accident caused soft tissue injuries to
the plaintiff’s neck and mid-back, and aggravated her pre-existing knee pain. The
Accident did not aggravate or affect her pre-existing low back pain.

[49]        
Dr. Stewart felt that the LifeMark rehabilitation program was too
soon and too intense for the plaintiff, given that the Accident occurred only three
months after the Work Injury and she hadn’t fully recovered.

[50]        
Dr. Stewart’s opinion is that the plaintiff has not had appropriate
rehabilitation. She doubts that any rehabilitation program will now cure the
plaintiff’s neck and back issues or improve her function:

…at the time I saw her she had
already had symptoms for almost two years and …I do not expect that the
rehabilitation program that I recommended would change that situation but might
help her to control her symptoms better…or at least …result in fewer symptoms,
not necessarily in improved function but in improved comfort

[51]        
At best, she is hopeful that an aqua therapy program, which is generally
gentler than a gym-based program, combined with stretching exercises, will help
the plaintiff manage and tolerate her ongoing pain.

[52]        
Dr. Stewart was not aware of any issues the plaintiff had with her
neck or with headaches prior to the Accident. Specifically, she was not aware
that Dr. Thompson had treated the plaintiff’s neck in 2010.

[53]        
In her opinion, the plaintiff is the type of person who carries more
tension in her muscles and is prone to stress induced headaches. Accordingly,
she was more likely to have ongoing and significant symptoms resulting from the
Accident. She testified:

…she was prone to stress induced
headaches that suggests she is the type of person who carries more tension in
their muscles than usual and therefore after a soft tissue injury they’re much
more likely to have ongoing symptoms and more severe symptoms than if they were
not a muscle tension component…”

[54]        
Regarding her neck injury, Dr. Stewart stated that it was a:

…new injury perhaps superimposed
on what sounds like a tension situation in the neck causing as you said weekly
headaches.

[55]        
Dr. Stewart agreed that the plaintiff had age-related degenerative
changes in her neck. However, she did not believe her periodic pre-Accident neck
pain was related to her underlying degenerative changes. If it were, the pain
would have been more constant.

[56]        
Dr. Stewart’s understanding of the plaintiff’s pre-Accident knee was
that the plaintiff would have occasional flare-ups of pain and swelling if she
overdid activities.

[57]        
The plaintiff’s Work Injury resulted in a permanent restriction and functional
limitations with respect to tolerance of both standing and sitting, forward
bending of her upper torso, lifting, stair climbing and likely squatting and
crouching. All these limitations affected her ability to do physically
demanding work at home. The left knee pain would have contributed to her
limitations.

[58]        
Home restrictions that would have been present in any event of the
Accident would have included vacuuming, washing a tub, changing linens and
laundry.

[59]        
As a result of the plaintiff’s injuries from the Accident superimposed
on her pre-Accident low back and knee condition, Dr. Stewart did not
believe she was competitively employable. Dr. Stewart stated:

A Functional Capacity Evaluation
and Vocational Rehabilitation assessment would help to determine whether Ms. Olson
is, in fact, competitively employable in any capacity in the future, but it is
my opinion that she is not.

[60]        
The plaintiff had been off work for two years by the time Dr. Stewart
saw her, which is a negative prognosticator for returning to work.

[61]        
Dr. Stewart was unable to apportion the degree of medical disability
between the plaintiff’s pre-Accident condition and the Accident. She was also
unable to say with any degree of certainty to what degree the injuries from the
Accident affected her ability to work or perform household activities. It very
much depends on the individual, the intensity and physical demands of the job
and the particular tasks being performed.

[62]        
Dr. Stewart gave her evidence in a straight forward, objective and
credible manner and I accept it.

ii.       Dr. Marty Thompson

[63]        
Dr. Thompson has been a chiropractor for 17 years. He was qualified
as an expert in chiropractic and care of the spine.

[64]        
He first began treating the plaintiff for low back/sciatica complaints in
High Level, Alberta, in approximately 2000. Sometimes he treated her multiple
times per week and sometimes treatments would be months apart. He would typically
adjust various areas of her spine, even though she had no specific complaints
or symptoms.

[65]        
He moved to the Kelowna area in 2008. On February 25, 2010, he began
treating the plaintiff because of low back complaints. He had her fill out a patient
intake form, where she noted weekly neck pain.

[66]        
On that visit, the plaintiff rated her low back pain at 8-9 on a 10 point
scale, with 10 representing intense pain. She told Dr. Thompson that she
experienced headaches and neck pain approximately once per week. She was having
a stressful emotional time because of the death of an ex-boyfriend.

[67]        
Dr. Thompson treated the plaintiff about 20 times in 2010, ending
on November 4, 2010. Throughout these treatments, the plaintiff’s main
complaint was her low back. Her secondary complaint was neck pain. The majority
of Dr. Thompson’s treatments in 2010 were for routine maintenance
adjustments to her spine.

[68]        
There was a hiatus of approximately 21 months before he next saw the
plaintiff on August 9, 2012, shortly after the Accident. The plaintiff’s
complaints following the Accident were different than they were in 2010, and
were focussed on persistent neck pain. She also complained of headaches,
frequent nausea, occasional dizziness, persistent shoulder pain, mid-back pain,
left arm pain, numbness and low back pain.

[69]        
He also observed that the plaintiff was frequently emotional, frustrated
and seemed depressed post-Accident.

[70]        
Dr. Thompson has continued to treat the plaintiff regularly. She
hasn’t been able to pay for the treatments so he has kept a running account. The
amount she owes currently is $3,720.

[71]        
He recommends chiropractic care for an indefinite period.

iii.       Dr. Brad Monteleone

[72]        
Dr. Monteleone is a general practitioner specializing in the field
of sports medicine. He is qualified in that field without debate.

[73]        
He first saw the plaintiff on April 2, 2012, on referral for an
assessment of her ongoing left knee issues. Her knee was swollen and she had an
effusion and reduced range of motion. Instability was present inside and
outside the knee. Crepitus was present. She rated her knee pain at 80-90 out of
100.

[74]        
She told him that various activities such as walking, standing, running
and pivoting made the knee pain worse. He recommended cortisone injections to
help relieve the pain and improve her function. Despite his recommendation, the
plaintiff has never had injections.

[75]        
Dr. Monteleone was satisfied that the source of the pain was moderate
to severe degeneration in all three knee compartments.

[76]        
His next assessment of the plaintiff occurred after the Accident, on
November 20, 2012. The only real difference he noted from his pre-Accident
assessment was swelling at the front of the knee. Accepting the plaintiff’s
history and on the assumption that she struck her knee in the Accident, he
opined that the Accident temporarily caused increased pain, stiffness and
swelling in her knee. His opinion was that she:

 will have increased
dysfunction related to the flare-up of her left knee condition following the
MVA. Following a period of time, her left knee condition will improve but it
will return to her baseline that is significantly decreased due to her left
knee condition.

[77]        
It was his view that if there was a blow to her knee during the
Accident, he would have expected there to be bruising and swelling evident
within 48-72 hours. Regardless, any increased symptoms would have returned to
the pre-Accident base line within one year.

[78]        
Dr. Monteleone’s opinion is that the underlying, pre-existing and
significant issues with the plaintiff’s left knee are the source of her ongoing
symptoms.

[79]        
Dr. Monteleone was a straightforward and objective witness and I
accept his testimony.

iv.      Kimberly Hutchinson

[80]        
Ms. Hutchinson has been a kinesiologist for some 15 years.

[81]        
She was qualified as an expert in the specialty of human kinetics and
functional capacity evaluations (“FCE’s”).

[82]        
She conducted an FCE of the plaintiff on August 5, 2014.

[83]        
Her opinion from the FCE was that the plaintiff did not meet the job
demands of a retail trade manager, as defined by the National Occupational
Classification. Although there were signs that the plaintiff was giving sub-maximal
effort during testing, her opinion was that the FCE test results were generally
valid and reliable.

[84]        
On cross-examination, she agreed that if the plaintiff did not give full
effort during testing, the test results may not be a true reflection of her actual
abilities.

[85]        
The FCE was of the plaintiff’s whole body and was broken down by various
activities and duties that would be affected by the Accident related injuries,
the Work Injury and the pre-existing left knee issues.

v.       Jacqueline Bull

[86]        
Ms. Bull is an occupational therapist who prepared a cost of future
care report dated November 11, 2014 (“CFC Report”), at the request of
plaintiff’s counsel. The recommendations for future care were based upon a
review of four pages from Dr. Stewart’s report dated September 14, 2014, Ms. Hutchinson’s
FCE dated August 19, 2014, and cost quotations obtained from various businesses.
She also conducted a telephone interview with the plaintiff. She did not meet
the plaintiff until after her report was completed. No home assessment was
undertaken.

[87]        
In preparing her CFC recommendations, Ms. Bull made a series of
assumptions:

a)    the history the
plaintiff provided to Ms. Hutchinson was accurate and complete;

b)    but for the
Accident, the plaintiff would have returned to full-time work after being
cleared by WorkSafe BC from her Work Injury;

c)     but for
the Accident, the plaintiff would have independently been able to perform her
full home and yard maintenance; and

d)    the plaintiff
has the potential for functional gains from her Accident injuries with an
appropriate and comprehensive rehabilitation program.

[88]        
Much of this information was obtained during her telephone discussion with
the plaintiff, which she accepted as correct.

[89]        
On the assumption that the plaintiff’s homemaking abilities were
compromised prior to the Accident, she wasn’t able to say whether some of her
future care recommendations may have been required in any event of the
Accident.

vi.      Dr. Benjamin Clark

[90]        
 Dr. Clark is a physiatrist. He was asked by the defendant’s counsel
to review various medical reports, chart notes, WorkSafe BC records and other
medical records. He was asked to provide an opinion on the nature and extent of
the injuries suffered by the plaintiff in the Accident, a prognosis for the
future, recommendations for future treatment and functional limitations she may
have in her day-to-day recreational and vocational life.

[91]        
He did not meet or assess the plaintiff.

[92]        
His report, with objectionable portions redacted, was filed in evidence.
He also testified.

[93]        
Dr. Clark concurs that the plaintiff suffered soft tissue injuries
to her neck, shoulders and upper back musculature. On the scale of medical
seriousness, he would rate her injuries as WAD- 2. By that, I infer, he meant
it was of moderate medical severity.

[94]        
He believes the prognosis for her recovery from the Accident is
excellent and expects her to have no functional limitations relating to it. Any
functional limitations she has are related to her degenerative disc disease in
the low back, aggravated by the Work Injury, and her left knee. Repetitive
bending, lifting, twisting, squatting, kneeling, ladder work, work on uneven
surfaces and prolonged standing will be restricted by these unrelated issues.

[95]        
She was a candidate for a left knee replacement before the Accident.

[96]        
His opinion is that the Accident has caused no functional limitations in
the plaintiff’s day-to-day, recreational or vocational life.

[97]        
While Dr. Clark was a straight-forward and objective witness and I
accept his evidence, this case involves an assessment of how the plaintiff’s
soft tissue injuries have affected her functionality and whether her left knee problem
was aggravated in the Accident. Because Dr. Clark’s opinion is based
entirely on a review of the documents he was provided, the weight that can be
attached to his opinion must be limited to that review.

vii.      Alisha Morris

[98]        
Ms. Morris is an occupational therapist. She was retained by the
defendant to review and critique Ms. Hutchinson’s FCE and Ms. Bull’s
CFC reports. She has not met or interviewed the plaintiff.

[99]        
The focus of Ms. Morris’ report is that the validity of the FCE
test results is questionable because the plaintiff did not give full effort
during the tests.

[100]     In short,
she opines that the plaintiff over-estimated her limitations and
under-estimated her abilities during FCE testing.

Discussion

[101]     The
plaintiff is entitled to be fairly compensated for the injuries she received in
the Accident and their consequences. The plaintiff has the onus of establishing
what these injuries are and what the consequences of them have been. She must
also establish that her physical and psychological problems were caused or
contributed to by the defendant’s negligence.

[102]     Before
damages can be assessed, the plaintiff must prove her losses on a balance of
probabilities. The question that must be answered is: What were the plaintiff’s
abilities and injuries before the Accident occurred (“Original Position”)? In
other words, but for the Accident, where would the plaintiff be in life,
vocationally, socially, domestically and recreationally? How has the Accident
changed her Original Position?: Resurfice Corp. v. Hanke, 2007 SCC 7.

[103]    
The defendant need not put the plaintiff in a better position than her
Original Position and should not have to compensate the plaintiff for any
damages she would have suffered anyway. This “but for” test must be applied in
a robust common sense fashion: Athey v. Leonati, [1996] 3 S.C.R. 458;
Blackwater v. Plint, 2005 SCC 58.

[104]    
As is usual with cases of this kind, the plaintiff’s credibility is
critical to answering these questions. With respect to the evidence required to
meet the onus on the plaintiff, Chief Justice McEachern’s observations in Price
v. Kostryba (1982), 70 B.C.L.R. 397, are instructive:

6.         I am not stating any new principle when I say that
the court should be exceedingly careful when there is little or no objective
evidence of continuing injury and when complaints of pain persist for long
periods extending beyond the normal or usual recovery. 

7.         An injured person is
entitled to be fully and properly compensated for any injury or disability
caused by a wrongdoer. But no one can expect his fellow citizen or citizens to
compensate him in the absence of convincing evidence – which could be just his
own evidence if the surrounding circumstances are consistent – that his
complaints of pain are true reflections of a continuing injury.

[105]     Clearly,
the plaintiff’s low back and left knee were already compromised before the
Accident. The Accident caused soft tissue damage to her neck, shoulders and mid-back,
with associated headaches that added additional pain with activities involving
those areas.

[106]     The
plaintiff called no collateral witnesses such as friends, co-workers or family
members who could assist the Court in understanding what the plaintiff’s
Original Position was and how the Accident affected it.

[107]     I have
concerns about the plaintiff’s evidence. She had a tendency to minimize the
effect that her pre-Accident issues had on her Original Position, and inflate
the effect her Accident related injuries have had on her function. As such, her
evidence was not completely reliable and it must be considered with caution.

[108]     The
plaintiff relies heavily on the opinions of Drs. Stewart, Thompson and
Monteleone. Because of issues with the plaintiff’s reliability, however, to the
extent that their opinions are based on the plaintiff’s subjective complaints, they
must also be considered with caution.

[109]    
Examples of where the plaintiff’s reliability is of concern include:

a)    failing to
report to Dr. Stewart the medications she says she took shortly before her
assessment;

b)    overstating the
recreational activities she participated in prior to the Accident by suggesting
that she was far more active than she was;

c)     failing to
participate in counselling sessions that were offered to her on being
discharged from the WorkSafe BC sponsored rehabilitation program;

d)    failing to
mention to Dr. Stewart that she had been seeing her chiropractor Dr. Thompson
from time to time prior to the Accident;

e)    understating the
sleep issues she had prior to the Accident;

f)      suggesting
that before the Accident her left knee was essentially normal except for when
wearing a brace for sport, when in fact her knee was unstable, severely degenerative
and symptomatic in the months and years leading to the Accident; and

g)    On January 7,
2013, she underwent a “Permanent Functional Impairment Evaluation” at the
behest of WorkSafe BC, during which she stated that her main complaint was
constant pain in her low back, told Dr. Stewart that prior to the Accident
she was experiencing constant pain in her low back, but suggested in her
testimony that her back was getting better and “is now pretty good”.

[110]     As a
result, I am left to consider corroborating evidence, as it exists, to
determine the nature and extent of the plaintiff’s injuries from the Accident
and how those injuries have affected her function.

[111]     I find
that the Accident had no impact on the plaintiff’s low back. She did not
complain of increased low back symptoms following the Accident and in fact told
Dr. Stewart that the Accident did not affect it.

[112]     I also
find that her left knee was not injured or her symptoms exacerbated by the
Accident. The evidence that I accept is to the contrary.

[113]    
Firstly, shortly after the Accident she was assessed at a walk-in clinic
by Dr. Verwey on August 13, 2012. She only complained of neck, mid-back
and bi-lateral trapezius pain during this assessment. There is no mention of
knee issues. That clinical record is brief. It states:

Currently complaining of mid
back, neck and anterior chest wall discomfort and pain. General tenderness over
bilateral trapezius muscles. No central vertebral body tenderness. Denies any
weakness or radiculopathy affecting the upper limbs.

[114]     No X-rays
of the knee were ordered, even though Dr. Verwey ordered X-rays of her
chest, neck and mid-back. The plaintiff attempted to explain that, despite no
indication in Dr. Verwey’s August 13, 2012, clinical record, her left knee
hurt all along. She testified that she thought it was bruised and would get
better. I do not accept her evidence on this point.

[115]     Secondly,
the medical evidence suggests that if there was a blunt trauma to the
plaintiff’s knee from the Accident, bruising, swelling or some objective
evidence should have been evident within 48-72 hours. There is no objective
evidence that any such symptoms occurred.

[116]     Thirdly,
if the Accident had affected her knee in any way, I am satisfied she would have
informed Dr. Monteleone of it when she saw him in October 2012.

[117]     On the
whole of the evidence, I accept that the plaintiff received soft tissue
injuries to her neck, trapezius muscles and mid-back and headaches that continue
to negatively affect her function to some degree.

[118]     I find
that her pre-Accident lower back and left knee conditions would have
significantly affected her ability to function at home and at work in any event
of the Accident.

[119]     I find
that prior to the Accident and in any event of the Accident, her competitive employability
and ability to perform homemaking tasks had already been significantly
compromised. The soft tissue injuries she received from the Accident were
superimposed on her Original Position and made it more difficult for her to
manage her day-to-day activities.

[120]     I find
that the plaintiff has made significant recovery from the effects of the
Accident within the past three years, but has been left with ongoing neck,
mid-back, trapezius pain and related headaches.

[121]     The
injuries the plaintiff is left with, and that I accept, are soft tissue
injuries to her neck, mid-back and trapezius muscles. They have caused
increased frequency and intensity of headaches.

[122]     I accept
that these issues continue to affect her, and likely will continue for two to three
more years. However, I find that the Accident related injuries pale in
comparison to the unrelated issues she has with her low back and left knee.

General Damages

[123]     A
consideration of general damages includes the inexhaustive factors described in
Stapley v. Hejslet, 2006 BCCA 34 at para. 46:

(a) age of
the plaintiff;

(b) nature
of the injury;

(c) severity
and duration of pain;

(d)
disability;

(e)
emotional suffering;

(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.

[124]     The
plaintiff submits that an award of $130,000 for non-pecuniary damages is
appropriate in this case. She relies on the following decisions: Stapley; Prince-Wright
v. Copeman, 2005 BCSC 1306; Marois v. Pelech, 2007 BCSC 1969; Eccleston
v. Dresen, 2009 BCSC 332; Badillo v. Bedi, 2015 BCSC 1692.

[125]     The
defendant argues that the plaintiff suffered soft tissue injuries to her neck
and mid-back and has had headaches and pain since the Accident. Improvements
have occurred, despite an almost complete lack of any treatment. Further
improvements are expected.

[126]     The
defendant submits that an award of $40,000 to $45,000 would be more appropriate
in these circumstances. She argues that the plaintiff’s functional abilities at
home, vocationally and recreationally were mostly compromised before the Accident
occurred. The Accident simply decreased her functionality for a period of time.
The defendant relies on the following decisions: Buttar v. Brennan, 2012
BCSC 531; Dang v. Chao, 2013 BCSC 740; Dennis v. Fothergill, 2012
BCSC 1510; Hill v. Durham, 2009 BCSC 1480; Kelly v. Kotz, 2014
BCSC 244.

[127]     The
plaintiff described her activities prior to the Accident as including mountain
biking, tennis, hiking, skating, darts, dog walking, foozeball and activities
with her son. She walked her dogs on a daily basis, played darts about once per
week, hiked about once per week and skated in the winter, or as often as she
could.

[128]     I am not
persuaded that these activities were regular or that the Accident impacted them
to any great degree. In a case such as this, where the plaintiff’s evidence is
not entirely reliable, one would normally have expected corroboration of the reduction
in these activities through evidence from the plaintiff’s son with whom she
lives, or through friends or other members of her family who would have known
her pre and post-Accident. No such evidence was led.

[129]     In my judgement,
the proper award for general damages in this case is far closer to what the
defendant suggests than what the plaintiff suggests. The cases the plaintiff
relies on relate to injuries that are significantly worse than the injuries and
resulting loss of function that the plaintiff sustained in the Accident.

[130]     While I
accept that the plaintiff suffered soft tissues injuries to her neck and
mid-back and that she has suffered headaches as a consequence of the Accident,
I do not accept that the plaintiff’s Original Position was as functional as she
suggests.

[131]     However, because
of who she was prior to the Accident, even relatively minor injuries would have
a significant impact on the plaintiff. She is now worse off as a result of her
Accident injuries and her enjoyment of life has been diminished even further
than it was pre-Accident. As Dr. Stewart put it, the Accident was the
third strike against her.

[132]     In the
circumstances, and following the principles set out in Stapley, I find
that a reasonable award for general damages is $60,000. As will be seen below,
within this sum I have included the plaintiff’s claim for reduced homemaking
abilities.

Special Damages

[133]     The
plaintiff’s special damages claim is restricted to Dr. Thompson’s
chiropractic fees of $3,720 and mileage to and from Dr. Thompson and her counsel’s
office of $2,172.

[134]     I am
satisfied that but for the Accident, the plaintiff would not have incurred
expenses for chiropractic treatments. She had not seen Dr. Thompson since
November 4, 2010, and there is no evidence that she was contemplating going
back. Although Dr. Thompson continued to treat the plaintiff’s entire
spine, the evidence satisfies me that it was the injuries from the Accident
that prompted her to return to Dr. Thompson and her continued treatment.
Her claim for chiropractic treatment expenses of $3,720 is allowed.

[135]     The
evidence respecting the plaintiff’s mileage claim was very vague. The plaintiff
simply made a “best guess” on the distance between her home and Dr. Thompson’s
office and her lawyer’s office, as well as the number of times she visited her
counsel.

[136]     Doing the
best I can with the evidence and accepting that she did incur mileage expenses,
I allow the sum of $500 for mileage.

[137]     Accordingly,
special damages in the sum of $4,220 are awarded.

Past Loss of Earnings/Earning Capacity

[138]     The
plaintiff seeks a net past wage loss award of $68,000.

[139]     The
plaintiff argues that but for the Accident, she would have returned to work
full-time by January 1, 2013, earning $35,300 per year. This sum is based on
what she claims to have been her annual earnings at Open Road prior to the
Accident. In the three years since the Accident, the plaintiff says her
without-Accident earnings would have been $105,900.00. Deducting her earnings from
Okanagan Custom Motorcycles Ltd (“Konquers”) of $15,313 and using an income tax
rate of 25%, she arrives at a net loss of income of $68,000.

[140]     The onus
is on the plaintiff to prove on a balance of probabilities that, but for the Accident,
she would have earned income and that income has been lost as a result of the
injuries suffered in the Accident. For the reasons that follow, I am not
satisfied the plaintiff has met this onus.

[141]     In the
years leading up to the Accident, the plaintiff’s income had been somewhat modest.
She closed her business in September 2011 and declared bankruptcy. She obtained
employment at Open Road on December 15, 2011, as a sales clerk and was promoted
to store manager in March 2012, earning $28,800 per annum ($2,400 per month). Her
evidence was that in addition, she received $200 – $300 “every couple of weeks”
as a bonus. These bonuses were not confirmed in the letter from her employer. Assuming,
however, she is correct, her annual income would be roughly $35,000 per year (approximately
$2,900 per month).

[142]     After
taking two days off from the Work Injury, she continued working until Dr. Verwey
told her that she had a serious injury to her back and recommended she leave
work. She followed that advice and left Open Road on July 9, 2012.

[143]     After the
plaintiff completed the LifeMark program, WorkSafe BC assigned her a
rehabilitation worker, who assisted with drafting a resume, preparing job
applications and cover letters.

[144]     Despite
this, the plaintiff did not work in 2013. She lived off the WorkSafeBC benefits
she continued to receive while they were assessing her for a pension. At some
point in 2013, WorkSafe BC declared her to have a permanent injury relating to
the Work Injury and gave her a lump-sum payout of $27,000.

[145]     Between
November 2013 and April 2014, the plaintiff returned to Zama, Alberta. For
unclear reasons, she did not seek employment while living in Zama.

[146]     By 2014,
the plaintiff says her headaches had improved and she was generally feeling
better. She felt capable of working at least part-time.

[147]     She did
not seek employment in earnest until May or June 2014.

[148]     The
plaintiff’s income tax information discloses that in 2012, her T4 earnings were
$12,836 and WorkSafe BC benefits were $10,423. In 2013, she reported WorkSafe
BC benefits of $49,538. I accept that a large portion of this sum was the lump
sum payout she received from WorkSafe BC for her Work Injury.

[149]     On January
8, 2015, the plaintiff commenced employment with Konquers on the sales floor.
Konquers is a motorcycle store similar to Open Road. She started out working
part-time hours.

[150]     She was
laid off from Konquers on October 4, 2015, because of the seasonal slowdown. At
the time of her layoff, she was working nearly full time hours. Her earnings totalled
$15,313.00.

[151]     She
testified that being able to work at Konquers helped her mentally. She enjoyed
being back at work, but needed pain killers to get her through the day. By the
time her shift was over she was exhausted and had to relax at home to get ready
for the next day. She was not able to keep up her house cleaning work.

[152]     As of the
date of the trial, Konquers had not called her to return to work. She does not
know if or when they will. Meanwhile, she has sought employment in retail sales
and in management.

[153]     I am not
satisfied that the plaintiff would have returned to work at Open Road but for
the Accident. Other than her statements that she would have, there is simply no
evidence that proves the point on a balance of probabilities.

[154]     In fact,
the evidence from LifeMark suggests that her return to work was uncertain
because of her low back issues. LifeMark’s discharge report dated November 2,
2012, suggests her function did not match Open Road’s job description. Unless
the planned low back injections provided significant symptom relief, no further
rehabilitation was recommended. The plaintiff’s evidence was that the second
injection made her symptoms worse.

[155]     Ms. Bull’s
FCE was conducted on August 5, 2014. It discloses that the plaintiff’s Accident
injuries did not restrict her from working in retail sales. Any limitations
that she had were from unrelated issues.

[156]    
Further, Dr. Stewart opined on page 12 of her report that:

Her ability to resume full time
work or even to continue part time work in the future was uncertain because of
her back injury.

[157]     In sum, there
is no objective or reliable evidence that suggests the plaintiff’s Work Injury
had recovered to the point that by 2013 she would have been able to return to
work, even if her job at Open Road were available. I am satisfied that the
plaintiff’s low back impacted most aspects of her life, both domestically and
vocationally.

[158]     I find
that the plaintiff was content to survive on her WorkSafe BC benefits until
January 2015, when she obtained employment from Konquers. Her unemployment up
to that point was for reasons unrelated to the Accident.

[159]     The
plaintiff has not proven that she has suffered past loss of earnings or earning
capacity as a result of the Accident.

Loss of Future Earning Capacity

[160]     The
criteria for an assessment of a claim for loss of future earning capacity are well
known. It is a two-step process. Firstly, the plaintiff must always prove that
there is a real and substantial possibility of a future event leading to an
income loss. If that burden is not overcome, that is the end of the matter and
no award may be given. If there is such a possibility, then the second step
requires an assessment of the loss. Depending on the facts, the assessment may
be made by either an earnings approach or capital asset approach: Perren v.
Lalari, 2010 BCCA 140; Graydon v. Harris, 2014 BCCA 412.

[161]     The
plaintiff relies on Dr. Stewart’s opinion that the addition of neck,
shoulder, mid-back pain and headaches to her already compromised medical
condition has resulted in further restrictions to the type and duration of work
she will be able to perform in the future, and made her competitively
unemployable. She argues that her Accident injuries prevent her from working
full-time hours and she is now restricted to part-time only.

[162]     The
defendant accepts that the plaintiff may have recovered from her low back
injury and knee issues to the point of being able to return to work, but
submits that the Accident had little impact in the scheme of things.

[163]     The
defence suggests that, given the plaintiff’s station in life, her age,
financial situation and the fact that she was a single mother, she would have
returned to work at some point but for the Accident, as she did in January 2015.

[164]     The
defendant does not dispute that the plaintiff has proven the first step in the loss
of future earnings analysis. The defendant concedes that there is a real and
substantial possibility that the type and amount of work the plaintiff can
perform will be affected in the future because of her Accident related injuries.

[165]     Given the
defendant’s concession, what remains to be considered is the quantification of
the plaintiff’s future loss.

[166]     The
plaintiff seeks an award of $90,000, based on a loss of roughly $20,000 per
year in earnings due to being restricted to part-time hours. She says working
full-time is too much for her to manage and points to her experience at
Konquers in 2015 in support.

[167]     The
defendant submits that the quantification of the plaintiff’s loss of future
earning capacity should be based on a loss of capital asset approach: Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260. Using
her past earnings history from Open Road as a guide, the defendant suggests the
appropriate award for the plaintiff’s loss of future earning capacity should be
$35,000.

[168]    
At age 44, the plaintiff is still relatively young. The effects of the
Accident continue to linger and there is a realistic possibility that whatever
employment she obtains will be negatively affected.

[169]     Dr. Stewart’s
opinion, which I accept, is helpful:

Ms. Olson was working
reduced hours but was struggling even at that level prior to the motor vehicle
accident because of the work injury to her low back in April 2012. Her ability
to resume full time work or even to continue part time work in the future was
uncertain because of her back injury. From the point of view of that injury
alone she would have had permanent restriction from physically demanding work. The
addition of neck and shoulder pain, mid back pain and headaches as a result of
the motor vehicle accident has resulted in further restrictions in regard to
the type of work and the hours she can work in the future.

[170]     I am
satisfied that the plaintiff has the ability to perform the demands of Open
Road/Konquers related retail sales and other light-medium strength occupations.
However, I find that consistently working full-time hours, at least in the
short term, will be difficult for her because of her Accident-related issues. I
conclude this will be the case for another one to three years in the future.

[171]     I agree
with the defendant’s submissions on how this loss should be quantified.

[172]     The
plaintiff is entitled to an award for loss of future earning capacity of
$35,000.

Future Care Costs

[173]    
Gignac v. Insurance Corporation of British Columbia, 2012 BCCA
351, describes the basis for an award for future care costs as follows:

[29]      The purpose of the award
for costs of future care is to restore, as best as possible with a monetary
award, the injured person to the position he would have been in had the
accident not occurred.

[30]     
The award is “based on what is reasonably necessary on the medical evidence to
promote the mental and physical health of the plaintiff[”]: (Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen
v. Zanatta, 2008 BCCA 420 at para. 41.

[174]     Such an award
is not a precise exercise, but rather an attempt to predict the plaintiff’s
future needs. The goal is to place the plaintiff in the same position she would
have been in had the Accident not happened: Izony v. Weidlich, 2006 BCSC
1315.

[175]     In
reliance on Dr. Stewart’s report and Ms. Bull’s CFC report, the
plaintiff claims future care costs totalling approximately $80,000. These costs
include a Generation II knee brace, physiotherapy, ongoing chiropractic
treatments, a kinesiologist, a gym and pool pass, occupational and vocational
rehabilitation, psychological counselling, yoga, homemaking and yard work
services and medications.

[176]     The
defendant disputes most of the plaintiff’s claim because of a lack of medical
justification and/or because these future care requirements are related to the
plaintiff’s Original Position and not from injuries she sustained in the
Accident.

[177]     For the
most part, I agree with the defendant’s submissions. The plaintiff’s Original
Position makes it difficult for her to argue that the requested future care
expenses are needed to restore her to the position she would have been in had
the Accident not occurred.

[178]     Despite
the plaintiff’s submissions to the contrary, she was clearly struggling with
many homemaking activities before the Accident and continues to struggle as a
result of her Original Position. The Accident made an already compromised
situation worse.

[179]     Some of Ms. Bull’s
cost of future care recommendations were based on assumptions, including
assumptions made in the FCE, which were not proven. These include that the
plaintiff would have returned to work full-time but for the Accident and that
she was independent with her homemaking and yard maintenance activities prior
to the Accident. Other than providing the costs of the recommendations made by Dr. Stewart,
her report was of limited assistance.

[180]     The FCE
identified that many of the plaintiff’s functional limitations were related to
her Original Position, including her low back and left knee. The heavier
homemaking chores that Ms. Bull recommended she would need assistance for
relate to activities she would have trouble performing due to her pre-existing
condition.

[181]     Further,
the plaintiff confirmed in her examination for discovery that she was managing
to maintain her home despite her ongoing issues.

[182]     Lastly,
given her steadily deteriorating left knee condition, she would have been
unable to perform most of the homemaking chores for which Ms. Bull
recommended assistance regardless of the Accident.

[183]     Taking
these factors into account, I agree with the defendant’s submissions that there
is no reliable evidence upon which I can base an award for housekeeping or yard
care relating to the plaintiff’s Accident injuries.

[184]     In
assessing this head of damage, I find Dr. Stewart’s recommendations to be
the most useful, although they too were based in part on assumptions that were
not proven. Dr. Stewart recommended that the plaintiff do daily stretching
exercises for her neck, back and shoulders. She also recommended a personal
trainer be provided to establish and monitor an aquatic exercise program that
the plaintiff could then follow on her own. A pool pass would be required. She
also recommended counselling sessions to help the plaintiff with pain
management.

[185]     Following Dr. Stewart’s
recommendations for a daily exercise program with a personal trainer, Ms. Bull
recommended a kinesiologist to work in conjunction with a physiotherapist to
keep an eye on the program and make adjustments as needed from time to time. She
testified that the recommendations she made for ongoing costs were not designed
to be indefinite but rather limited to a one to three year period.

[186]     I am
satisfied that the plaintiff has not yet had the benefit of a rehabilitation
program focused on her Accident related injuries. I accept Dr. Stewart’s
opinion that an aquatic based exercise program should be established and
monitored for a period of time to allow the plaintiff to strengthen the muscles
in her neck, shoulder and upper back. I am also satisfied that a kinesiologist
would be an appropriate person to set the program up and monitor her progress
for a short timeframe. It will then be the plaintiff’s responsibility to
continue the program as needed.

[187]     I am also
satisfied that 12 pain management/counselling sessions would be appropriate to
assist the plaintiff with her Accident related injuries.

[188]     I am not
satisfied that the plaintiff has made out a case for the necessity of yoga as a
treatment for her Accident related injuries.

[189]     On the
whole of the evidence, considering the circumstances of this case and using the
costs from Ms. Bull’s report, I assess the plaintiff’s cost of future care
claim as follows:

 a)  12 session with a kinesiologist @ $74.50/
session:                 $  894.00

 b)  48 Chiropractic treatments @ $55.00/session:                      $2,640.00

 c)  annual pool pass for 3 years @ $547.39/
year:                     $1,642.17

 d)  12 session of psychological counselling @
$175/ session: $2,100.00

 Total:                                                                                       $7,276.17

Housekeeping Capacity

[190]     At the
time of the Accident, the plaintiff lived in a 1500 – 1600 square foot, three
bedroom house in West Kelowna. It had a large landscaped backyard that required
significant maintenance. The plaintiff’s son would mow the lawn and the
plaintiff took care of the flowers and the shrubs. She said that having a tidy
and clean home was important to her because, as she described, “if the house is
chaos your life is chaos, if the house is tidy your life is tidy”.

[191]     She feels
depressed about being unable to keep the house to her cleaning standards. She
finds herself fighting more with her son because she wants him to step up and
help but being a 21 year old male, he does not always cooperate. She describes
having problems with homemaking duties such as doing the laundry, dishes,
sweeping, washing floors, washing the bathtub, making beds and washing walls.

[192]     She
testified that she has the most difficulty with her neck and shoulders when she
has to reach for something. She described everyday clean-up of the home as an
issue. She has had help from her friends and sister from time to time. She says
she never had these problems before the Accident.

[193]     The
plaintiff testified about the time she spent each week doing housework. She
said she spent 15 – 20 hours per week on household duties and 15 – 20 hours per
week on outside chores. For the first month or two following the Accident, this
was reduced to 5 – 10 hours per week. It has slowly increased to her being able
to perform household duties 10 – 15 hours per week. Outdoor activities has
ceased because she has now moved into a condominium.

[194]     This
evidence was pure guess work and was not persuasive.

[195]    
Dr. Stewart asked the plaintiff about her homemaking abilities
before the Work Injury and documented what the plaintiff told her at p. 7
of her report:

At the time of the work injury, Ms. Olson
lived with her son in a rented house. Before that injury Ms. Olson did the
housework, laundry, grocery shopping and cooking for herself and her son. Her
son would mow the lawn. After the work injury Ms. Olson’s girlfriend,
sister and son helped with the housekeeping. Ms. Olson had still not
resumed her usual housekeeping tasks at the time of the motor vehicle accident.
She has been unable to do any gardening since her work injury.

[196]     Dr. Stewart’s
opinion is that the plaintiff will require help in the future with housekeeping
as a result of a combination of her Work Injury and the Accident.

[197]     In direct,
the plaintiff suggested that her gardening and outside home maintenance
activities had decreased by 1/3 due to the Work Injury. However in cross, she
agreed that as a result of the Work Injury, she had not resumed her usual
housekeeping activities and that she told Dr. Stewart such. She agreed she
was unable to do any gardening due to her low back injury.

[198]     The
plaintiff also agreed that she was able to manage her homemaking duties and
that she has “gradually been getting better”. In particular, she agreed that
since her return to Kelowna in April 2014, she has been able to perform her
housekeeping tasks as required.

[199]     I am not
satisfied that the plaintiff has made out a claim for past or future loss of
housekeeping capacity. By her own admission, her ability to perform homemaking
chores was compromised by the Work Injury. She admitted that she can now
perform those activities, albeit at a slower pace.

[200]     There is
no reliable evidence that the plaintiff would have returned to normal
housekeeping duties but for the Accident. All housekeeping duties were already
restricted because of her low back and left knee issues.

[201]     I agree
with the defendant that given the circumstances of this case, any recognition
of reduced homemaking capacity from the Accident into the future should be
built into the general damages award.

[202]     To the
extent the Accident injuries impacted her homemaking capacity, I have factored
it into her general damages award.

Summary

[203]     In sum,
the plaintiff is awarded the following:

 General damages:                                    $60,000.00

 Special damages:                                      $ 4,220.00

 Past Wage
Loss/earning capacity:                         $nil

 Future loss of
earning capacity:                 $35,000.00

 Future Care Costs:                                    $ 7,276.17

 Loss of
Housekeeping capacity:            $nil

 Total:                                                     $106,496.17

Costs

[204]     Subject to
matters of which I am unaware, the plaintiff is entitled to costs.

“G.P.
Weatherill, J.”