IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Pearson v. Savage, |
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2017 BCSC 1435 |
Date: 20170815
Docket: M126646
Registry: Vancouver
Between:
Jessica Marie Pearson
Plaintiff
And
Melanie Catherine Savage and Sheila Elaine Berry
Defendants
Before: The Honourable Madam Justice Loo
Reasons for Judgment
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Counsel for the Plaintiff: |
J.L. Harbut |
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Counsel for the Defendants: |
D.W. Barber |
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Place and Dates of Trial/Hearing: |
Vancouver, B.C. January 16-19, 23-27,
30-31, |
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Place and Date of Judgment: |
Vancouver, B.C. August 15, 2017 |
Table of Contents
B. The Plaintiff before the Accident
C. The Plaintiff after the Accident
3. Loss of future income earning capacity
[1] The plaintiff Jessica Pearson was injured when she was a rear seat passenger in a vehicle that was involved in a head-on collision on the Sea-To-Sky Highway on November 26, 2010. Liability for the accident is admitted and the only issue is the assessment of damages, the most significant of which are loss of future earning capacity and cost of future care.
[2] At the time of the accident Ms. Pearson was 21 years old. She was taking a year off from her business administration degree program at Capilano University to work and earn money so that she could continue with her education. She wanted to eventually work in sports marketing or a similar field.
[3] Before the collision, Ms. Pearson was energetic, ambitious, enthusiastic, artistic, athletic, a stellar employee, and had an attachment to the work force and emotional intelligence. Her future is now uncertain. As a result of the collision she suffers chronic soft tissue pain in her neck, upper back, posterior shoulder girdle, lower back, and left anterior knee. She suffers disabling headaches, emotional and psychological symptoms in the form of depression, chronic anxiety resulting in uncontrollable anxiety attacks, and chronic post-traumatic stress disorder (“PTSD”). She sleeps long hours but cannot have a restful sleep. She can no longer enjoy the recreational activities that she used to enjoy, and has difficulties with her ability to work. Her prognosis for recovery is guarded and she will never become pain-free.
[4] The defence argues that Ms. Pearson failed to mitigate her damages by failing to follow the treatment advice of the medical professionals. Ms. Pearson contends that her failure to follow treatment advice is a result of her chronic pain, depression, and anxiety.
[5] This is one of those cases where a young person is injured at a time when she has not completed her education or entered the work force in a formal way, but has dreams and ambitions about what she wants to do with her life. This Court must therefore determine how life might have unfolded for Ms. Pearson, but for the accident.
[6] Ms. Pearson was born in February 1989 and lived in Vancouver until her parents moved to Squamish in 1993 when she was in elementary school. Her younger sister completed a two-year degree program in theatre administration and works in that field. Her younger brother is in his final year of engineering at the University of British Columbia.
[7] Ms. Pearson’s parents separated in May 1997, and she lived with her mother, but her father remained in her life, and they are close to each other.
[8] Ms. Pearson did well in school. She excelled in music, art, marketing, and human studies. She generally received A and B marks. However, she did not particularly like accounting or mathematics and her worst mark was a C minus that she received in grade 12 math. She was in the leadership class in grades 11 and 12, active in fundraising and volunteer work, and enjoyed organizing events. She played flute in the school band, and was on the school’s baseball, volleyball, and baseball teams in various years. She enjoyed snowboarding, long distance swimming, rock climbing and bouldering. She also enjoyed painting and sketching. She was an extrovert and a social butterfly.
[9] Ms. Pearson obtained her driver’s licence when she was 16 years old and drove regularly without anxiety. She had no difficulty sleeping, needed no more than six hours of sleep each night, and when she woke up in the morning, was rested and restored.
[10] Ms. Pearson was raised with a strong work ethic. She was taught that if she wanted to buy anything, she had to earn the money. She began working as a cashier at Wendy’s in February 2004 when she turned 15 years old. She also had part-time work at Extra Foods. She began working part-time as a barista at Starbucks in November 2006. She graduated from Howe Sound Secondary in Squamish in June 2007. She took a year off to travel and spent about a month backpacking on her own in Thailand. She paid for the trip on her own.
[11] After she returned from Thailand, Ms. Pearson moved to Vancouver so that she could attend the Bachelor of Business Administration degree program at Capilano University in the fall of 2008. She hoped to later obtain a master’s degree in business administration. She lived with her father in West Vancouver for about a year, before she moved into an apartment in North Vancouver which she shared with roommates. She paid for her tuition and rent on her own.
[12] During her first semester at Capilano University, Ms. Pearson came down with strep throat and subsequently had throat surgery in May 2009. Because of her throat infection she tried to withdraw from quantitative methods in the fall of 2008, but her instructor would not allow her to withdraw and she failed the course. However, she did well in her other three courses. She enrolled in quantitative methods again in the spring 2009 semester and passed with a C minus, but received excellent or very good marks in her other courses.
[13] Ms. Pearson attended Capilano University in the fall of 2009. She did poorly in accounting and in microeconomic theory, but did very well in people management and event marketing. She worked part-time time and often started work at Starbucks at 4:45 a.m. so that she could attend classes in the afternoon.
[14] Ms. Pearson took time off from Capilano University from the end of the fall 2009 semester to work so that she would have enough money to continue with her education and to pay for her living expenses. She also did volunteer work with an event marketing company to help organize the Lower Lonsdale fall and winter festivals. She planned to return to Capilano University in January or spring of 2011.
[15] Ms. Pearson worked well with people and was always keenly interested in sports. A regular Starbucks customer came to know her and offered her a job at Game Day auctions and she began working at the auctions in October 2010.
[16] At Game Day auctions, Ms. Pearson auctioned sports memorabilia during intermissions when the Vancouver Canucks were playing at Rogers Arena. There were large crowds because it was the year that the Canucks were in the Stanley Cup play-offs, but Ms. Pearson loved the high energy and found the atmosphere exhilarating. She loved sports, she loved hockey, and she dreamed of one day working for the Vancouver Canucks. She thought that working at Game Day auctions was the perfect stepping stone to working for the Canucks and sports marketing.
[17] The defendant Melanie Savage was driving a 2010 Mazda northbound on the Sea-To-Sky Highway around 10:30 p.m. the evening of November 26, 2010. Ms. Savage and her three passengers had been at Rogers Arena for a Canucks’ home game and were heading back to Squamish where they all lived. Kevin Smiley was the front seat passenger. Ms. Pearson and her boyfriend Nick Johnson were the rear seat passengers. Ms. Pearson sat behind the driver’s seat. Just before they reached Porteau Cove, Mr. Smiley shouted that they were going to be hit.
[18] Ms. Pearson looked up when she heard the shouting. She saw headlights, heard a crunch, felt her body spinning while everything went white, heard the sound of a horn, smelled something awful, and heard Ms. Savage scream. She was very scared and frightened. With the horn sounding for what seemed like a long time, and the smell of smoke, she thought the vehicle was going to explode. She does not recall how she got out of the vehicle because when she tried to open her door she found it was up against a concrete barrier.
[19] A vehicle driving southbound on the opposite side of the highway had crossed the centre line, collided with another vehicle and Ms. Savage’s northbound vehicle which then spun around and came to rest facing northbound and against the road side barrier on the southbound side of the highway.
[20] When Ms. Pearson got out of the vehicle she found that the road surface was very slippery. She slipped and fell on her right leg.
[21] Everyone who had been in the vehicle was in a state of shock and “pretty banged up.” A man came running across the highway yelling that when their vehicle was spinning around, a bus barely missed hitting them. He asked if they had called the police. It was only at that moment that Ms. Pearson realized that they had been in a car accident. She “felt out of body.” What had just occurred did not feel real. However, she noticed that her right leg was throbbing and her back was sore.
[22] Ms. Savage testified that both of the air bags went off and the front passenger side of the vehicle was “all smashed up”.
[23] Mr. Johnson testified that the head on collision was a “scary event” for all of them. They all could have died.
[24] Mr. Smiley was taken away in an ambulance. A friend, Mark James, drove from Squamish and drove the rest of them back to Mr. Johnson’s parents’ home in Squamish.
[25] The drive from the accident scene to Squamish was the first time Ms. Pearson had ever been scared and anxious in a vehicle. She was white knuckled the entire drive and was terrified of dangers that lurked on the highway. When they arrived at Mr. Johnson’s parents’ home, she did not feel well physically or mentally. She was stuttering, dropping words, and confused. Her head was sore, and she experienced her first real headache.
[26] The next day her whole body felt stiff and bruised. She had bruising along her chest and ribs from the pressure of the seatbelt, a large bruise on her upper right leg, her right knee hurt, she could not turn her neck quickly, and any movements caused a significant amount of pain. She felt like she had undergone a complete personality change: every emotion was so magnified and intense that it was frightening.
[27] A week or two after the accident, Ms. Pearson and Mr. Johnson went to Las Vegas with his parents and two brothers. The trip was planned before the collision. Mr. Johnson testified that when they were in Las Vegas, his foot and neck was really sore, and Ms. Pearson’s back and neck was really sore. They were both pretty miserable, and they fought a lot (which is not something they did before). Their relationship ended within a week or so after they returned from Las Vegas.
[28] Ms. Pearson’s memory of events after the accident is very “foggy” or “blurry.” She has a blurry recollection of missing work at Game Day auctions, but the company has no records of her actual days or hours worked. She recalls working some games, but her anxiety and depression made it difficult to work with the crowds. She recalls her boss telling her that she was crying, could not lift anything, could not do her job, and that she had to leave work.
[29] Ms. Pearson used to love the hustle and bustle of Vancouver, but she now found the city too loud, too stimulating, and not safe. She decided to return to her mother’s home in Squamish where she felt safer and could recuperate.
[30] Ms. Pearson returned to Squamish in or around May 2011. Her mother had started renovations at her place, so Ms. Pearson ended up staying with her boyfriend Russell Adams in his small basement suite. They have been living together ever since.
[31] Ms. Pearson began working at Starbucks in Squamish in May 2011. She thought it was a job she knew and could do, but she found it a huge challenge physically and mentally. Work exacerbated the pain in her back and knee, and she could not keep up with the pace of the job or interact with people.
[32] In September 2011 Ms. Pearson was prescribed the anti-depressant Cymbalta. The drug made her nauseous. She was later prescribed Cipralex. However, Ms. Pearson did not take the anti-depressants continuously. She testified that there were a number of factors why this was so. She is very fearful of medication because of her family history of addiction. She is now very forgetful. She would forget to refill a prescription, and before she knew it, she would “sink into a hole of depression”, and it became really difficult to “even make a phone call” to make an appointment or to refill a prescription. It takes her breath away realizing that she suffers anxiety over such “silly things” like making a phone call. She cannot explain it.
[33] Ms. Pearson left Starbucks at the end of 2011. On February 8, 2012 she began working at Discovery Kids Daycare. She enjoys children, she could work part‑time, and she had the ability to sit and stand when she needed. She took an online course from Capilano University on Guiding Young Children so that she could work as an early childhood assistant.
[34] Despite having a strong work ethic, and wanting to work and help people, Ms. Pearson found the demands of working at the daycare increased her physical pain. By the end of the day, she could not perform even a simple chore at home, and sometimes went straight to bed.
[35] Working at the daycare also made it difficult for Ms. Pearson to attend physiotherapy, unless she got off early by not taking a break. If she did that, she became so physically and mentally tired, she could only go home and lie down. Just the thought of having to attend physiotherapy – another demand on her – increased her already high level of anxiety.
[36] After a couple of years she had increased responsibilities and increased hours. She pushed herself to work harder. However, along with that came increased pain, increased anxiety, increased irritability, and increased need for sleep. By the time she got home, she was angry because she was in so much pain and had no joy in life. Her last day at work at Discovery Kids Daycare was October 20, 2015.
[37] In 2014 Ms. Pearson attended GF Strong Rehabilitation Centre (“GF Strong”) in Vancouver and saw a registered psychologist, Dr. Verna Amell, for a number of sessions that helped lessen her driving anxiety, but ever since the accident she remains too scared to drive the Sea-to-Sky Highway. She also saw an occupational therapist at GF Strong, but did not complete the treatment. In October 2015, her family physician referred her to the CHANGEpain clinic in Vancouver. Although the waitlist can be as long as eight months to two years, she has not attended the clinic.
[38] On November 8, 2015 Ms. Pearson began working for Windflower Designs (“Windflower”) which has an outdoor and an indoor flower stand in Squamish. Ms. Pearson was unable to handle the demands of the outdoor stand which required her to set up and take down a tent and display tables outside of London Drugs. Instead, she worked at the indoor flower stand at Nesters Market. The job required her to lift flower buckets from the cooler, and she often had to ask a grocery boy to help her lift the buckets. Standing and lifting aggravated the pain in her lower back and the shooting pains in her left leg. Ms. Pearson last worked for Windflower in August 2016.
[39] Since August 2016 Ms. Pearson has worked as a server at Howe Sound Brewing Pub (“Howe Sound”) in Squamish. She does not have to sit too long or stand too long, and she can walk around. A food runner takes food dishes to the table and a host cleans up the table. Ms. Pearson brings drinks to the table, and sometimes if the pub is busy, she takes some food dishes to a table. She works shifts during the week to avoid the busier weekends and better manage her pain. Her shifts are between four to six hours, and she earns around $100 in tips, in addition to her hourly wage of just over $9 an hour. She enjoys working at the pub because she has always enjoyed being part of a team.
[40] Unfortunately, every job Ms. Pearson has taken since the accident has resulted in her becoming increasingly physically and emotionally exhausted. She still thinks a lot about returning to school, but did not think her pain symptoms, depression, and anxiety from the collision would persist so long.
[41] Ms. Pearson used to relax by sketching. She made sketches of well-known people. Her sketches of some members of the Vancouver Canucks are quite remarkable and look as if they were done by professional artists. However, she can no longer sketch like that, and her drawings and sketches are now much less intricate or complex. In or around 2015 she tried making jewellery as an artistic and relaxing outlet for her. She sold a few pieces online, but not enough to make it profitable. She has a blog that highlights her jewellery, but that helps the creative side of her personality rather than making any income for her.
[42] Ms. Pearson struggles with the household chores, including cooking and cleaning. Mr. Adams does all of the chores that require any bending which includes cleaning the bathroom, yard work, and cleaning up after the dog. Ms. Pearson needs to take a lot of breaks just washing dishes or folding laundry.
[43] On a good day, Ms. Pearson will be physically achy, but she may be able to go for a walk or a hike in the forest, attend a yoga class, or meet a friend for coffee. On a good day, she has tried playing baseball but the last time she played she suffered a panic or anxiety attack.
[44] Ms. Pearson has more bad days than good days. The worse days are when she has so much pain in her neck and shooting pains in her ribs and lower back that she does not want to live. To help her breathe when she is suffering from anxiety, she has learned coping mechanisms from her therapist, but she continues to suffer from anxiety and anxiety attacks. She feels as if she “can no longer see colour.” She sees people laughing and smiling, but she cannot share that with them. She feels as if she can no longer participate in life, and experiences the terrible feeling that she is not worthy of participating in life. She goes through the motions of life on auto-pilot.
[45] The defendants argue that Ms. Pearson is not a credible or reliable witness. However, what they contend are inconsistencies or exaggerations do not affect my finding that she is a credible witness. The average person’s recall is not perfect, and the fact that a physician’s clinical records do not record a specific complaint does not mean that the complaint did not occur. Physicians do not take down verbatim everything a patient tells him or her. That is not the purpose of clinical records.
[46] In direct examination Ms. Pearson was asked if she participated in sports in high school, and she replied that she participated in a number of sports including basketball, volleyball, and snowboarding. The fact that cross-examination disclosed that she was on the basketball teams for only grades eight and nine, stopped playing on the volleyball team in grade 10, and that she snowboarded more in high school when she had an inexpensive Whistler pass, and did not snowboard as much after high school, does not make her an unreliable witness.
[47] The defendants also argue that Ms. Pearson is extremely pain-focussed and tends to overemphasize her complaints, suggesting that she is prone to exaggerating her complaints. However, the medical evidence establishes that as a result of the accident, Ms. Pearson suffers from a somatic symptom disorder and has become entirely preoccupied with her complaints of pain to the point that it causes an exaggerated pain response. If Ms. Pearson exaggerates her pain, it is not because she is not a credible or reliable witness. Rather, it is a reflection of the psychological injury she sustained as a result of the accident.
[48] The injuries that Ms. Pearson complains that she suffered from the accident both physically, and more significantly, psychologically, and the consequences of those injuries, are fully corroborated by the lay witnesses and the evidence of the plaintiff’s medical witnesses. For the reasons outlined later, I do not accept the evidence of the medical witnesses for the defendants.
[49] Nicholas Johnson was Ms. Pearson’s boyfriend at the time of the accident. He described her as a sweetheart, super bubbly, really friendly, full of energy, fun to be around, and hard working. She was “really into sports,” especially hockey and the Vancouver Canucks. They watched a lot of sports together, and although they never discussed her career ambitions, he “figured it would be something in the sporting world.”
[50] Mark James is a few years older than Ms. Pearson, but they grew up in Squamish just two or three blocks away from each other, and attended the same schools. He described Ms. Pearson as a very outgoing, very happy, bubbly kind of girl. He never saw her with any physical limitations before the accident.
[51] After Ms. Pearson moved in with Mr. Adams in May 2011, Mr. James saw her almost daily because he and Mr. Adams do a lot of outdoor activities together, his girlfriend lives only four houses away from Mr. Adams, and they often just walked into Mr. Adams’ basement suite so they could take his dog for a walk.
[52] Mr. James and Ms. Pearson confide in each other and have a very close relationship. Mr. James sustained trauma as a teenager and suffers from depression, anxiety, and anxiety attacks. He understands what it is like to be in a deep dark depression and understands Ms. Pearson’s depression and anxiety. They both have the same prescription medication for anxiety and depression. When Ms. Pearson is depressed, she is not very friendly, her mood is not very pleasant, and she fights over little things. He has seen her “basically keeled over,” looking like a ghost after she has stayed in bed for four or five days. He regularly sees her stretching on a foam roller and on various exercise devices even when they are having a conversation.
[53] Mr. Adams has a 1,200 square foot cabin with a wood cook stove that he built on about six acres of wilderness near Gold Bridge and Marshall Lake where his father also has a cabin. Mr. James described the cabin as Ms. Pearson’s and Mr. Adams’ “happy place.” They go there as often as they can. There are varied outdoor activities at the cabin. In the warmer months there is fishing, swimming, boating, and hiking to the alpine meadows, and in the winter, there is ice hockey and curling.
[54] Mr. James observed that Ms. Pearson cannot participate in the outdoor activities like a normal person her age. He was at the cabin for New Year’s Eve in 2015-2016 when she tried cross-country skiing. After no more than 10 minutes she had to stop because it caused her so much pain. She had only been in the cabin a couple of days, but wanted to return home because of her pain.
[55] At the cabin during the fall season, Mr. Adams and Mr. James like deer hunting. Ms. Pearson always wanted to try deer hunting. Part of hunting includes hiking up and down a small hill. Mr. James and his girlfriend and Mr. Adams and Ms. Pearson started off on the hike up the hill. Mr. James testified: “this isn’t a big hill. We hike it with 70-year old men. It’s just a half an hour to a 45-minute walk.”
[56] Ms. Pearson made it only half way up one side of the hill and could go no further. Mr. James and his girlfriend met her and Mr. Adams on their way back down the hill. Ms. Pearson could barely walk, she looked totally exhausted, and she spent the remainder of the weekend at the cabin in bed.
[57] Mr. James and his girlfriend view Ms. Pearson as a “handicapped person.” He has a power boat, but Ms. Pearson cannot spend any time on his boat because “it kills” her neck and back, and she ends up spending the next three of four days in bed. They no longer invite Ms. Pearson on other outdoor activities because she cannot even go on a simple hike. When they spend time with Ms. Pearson and Mr. Adams, they watch football. Ms. Pearson loves football and knows more about football than any of his male friends.
[58] Mr. James will not get in a vehicle with Ms. Pearson because she is too nervous and anxious. She will drive in Squamish, but not on the highway. If she has an appointment in Vancouver, Mr. Adams must take a day off work to drive her back and forth.
[59] Mr. James testified what Ms. Pearson’s depression and anxiety looks like:
Q Can you give us a sense with Ms. Pearson, what is -- what does this depression that you refer to look like from your perspective?
A Depression is hard to -- especially with her because she's so -- she tries to put on a good face for everybody. But her depression, because I'm so close I can see it. And she will be out and about and then if she is depressed, or if the pain’s caused the depression, or if her anxiety’s kicked up, or if she's just having, you know, a bad day, the depression settles in and she disappears. She will sneak away from whatever it is she is doing, whether, you know, just having dinner with a group of friends, or we're at Russ’s parents or whatever, wherever we’re at, she will sneak away. And sometimes it's days on end where you will not hear from Jessica or see her. She'll be in bed. She'll sleep for 15 hours, 16 hours a day. And that's not uncommon for her. …
…
Q Now, I want to ask you -- distinct from depression, I want to ask you about anxiety. Have you seen any anxiety in her, and have you ever seen her have an anxiety attack?
A Yes. I suffer from anxiety attacks. I have had many before. So I kind of – she knew that, so one time, to be specific, Russ was away working Keith Island. And when Russ goes away I kind of know to check in with Jess. My and Jess kind of -- just because she doesn't like to be alone in the house, and so I keep a close eye on her. She had called me up and was crying, and I couldn't understand what she was saying. I said, make sure you are safe, just meet me in my parking circle outside of our -- my apartment. So she did. I went downstairs and she was in her car and she was shaking, just bawling her eyes out, having a full blown anxiety attack. You can't understand what she's saying. You can't say anything to her because she's not there really. You are looking right through her. There's no comprehension or anything from her. So just basically in that state, just calm her down and, you know, try and change the subject on anything, get her back breathing properly. And then once that happened we can have a conversation about what is actually going on. …
[60] Mr. James observed that Ms. Pearson is getting both physically and emotionally worse:
Q. Let me ask you about the trajectory of things. And what I mean by that is both with respect to the physical issues you've described and the psychological issues you've described. Do you see them getting better, worse, staying the same?
A Her mental state, with me -- what I can see because we're on that level of talking, it's pretty much-- it can get better one day and it can be way worse the next. That kind of fluctuates, but it's still -- that's the battle of depression. And then anxiety obviously, that's obvious, gets worse. …
[61] Gregory Pearson is Ms. Pearson’s father. He has a business administration certificate and works as a realtor. He gave his evidence in a very forthright manner, conceding that he is her father, and he was trying his best to be objective.
[62] Mr. Pearson described his daughter as a natural student who was consistently on the honour roll in high school and very active in school. She was vibrant, enthusiastic, exuded joy, and very outgoing. There was nothing that she would not try, within reason. She loved snowboarding. She was one of those special sparks. If he was having a rough day, she would be the one to snap him back. She was very much a people person. Two of his colleagues who are realtors frequently went to the Starbucks where she worked. They both commented to him about how charming and engaging she was.
[63] After she graduated from high school, she had career ambitions to pursue. She was very excited about getting on with her life in Vancouver and attending Capilano University. She kept saying that she was going to be Ms. Vancouver and was going to take over the corporate world. She loved marketing and was thinking of pursuing work in the head office of the Canucks, or something similar. He believed she had every reasonable expectation of achieving what she wanted to do with her life.
[64] Within the first couple of weeks of the accident, he knew that she was having back pains, severe headaches, and difficulty with the chores of daily living. She got worse. She became afraid at times to even go outside. She now isolates herself a lot. She is so “scared to death” of driving the Sea-to-Sky highway, that she did not have Boxing Day dinner at his home last year because there was no one who could drive her from Squamish to North Vancouver and there was a big storm that day.
[65] Before the accident, she instigated most of their happy phone conversations. The first few months after the accident, their contact was less frequent and she seemed more distant and reclusive. Now he has to instigate most of their phone calls.
[66] From time to time he sees “snippets” when she is doing better, but he has never seen her free of pain. In the fall of 2014, their blended family (Mr. Pearson’s current spouse has children) went to Yucatan, Mexico for a warm weather break. He saw a few moments where she seemed “relieved,” but it may have been the warm weather.
[67] Before the accident, Mr. Pearson knew that his daughter had a trajectory, and as a father, he felt very comforted that she was going to be well and do well. He no longer feels that way. She is no longer engaged in life, even though he sees that she really tries.
[68] Anita Kingston lives in Squamish and has worked for Starbucks for over 16 years. She has been performing employment reviews since 2003 when she became an assistant manager. Since 2006 she has been store manager at various Starbucks locations. A Starbucks’ employee has a review every six months, and over the last 10 years, Ms. Kingston has reviewed an average of 15 or 16 employees each year.
[69] Ms. Pearson worked part-time at Starbucks from November 2006 to August 2009. After the accident, Ms. Pearson returned to working at Starbucks in Squamish in May 2011.
[70] Starbucks, as can be expected, has formal job descriptions for the position of barista and for shift supervisor. The job description for a barista and shift supervisor includes various responsibilities, including maintaining a calm demeanour during high volume periods, delivering exceptional customer service and connecting with the customer while meeting their needs, building effective relationships with co-workers, customers, and others, and working as a team. The job description also outlines lifting, pushing/pulling, standing/walking and stooping requirements that are part of the job.
[71] The job description for shift supervisor is similar to job description for barista but includes the ability to direct the work of others.
[72] Ms. Kingston gave the following evidence relating to Ms. Pearson’s job performance before and after the accident:
Q First of all, in the context of working at Starbucks, can it be stressful at times for a barista?
A Absolutely.
Q Okay. And what would be a source of some of that stress?
A Often customer dissatisfaction. Drink quality. Speed of service. Just the pace of the business. A lot of competing priorities happening all at once. So …
Q So what then -- with that in mind, what do you look for then in employees?
A People that know how to stay calm, that are generally happy, that will engage in conversation with the customers to keep them happy, and do what is necessary to ensure that the customers stay happy and their needs are met. So really just around how they carry themselves. If you are prone to anxiety it might be something you would struggle with.
Q And what was your experience around this time working with Ms. Pearson in 2007 in terms of her ability to handle stress in the context of this job?
A She stood out of -- you know, many students that I had in my employ at the time, she was definitely the most composed, reliable, mature, always friendly, always engaging, very high energy. … you know when I think back, that’s really how I think of her, like in the earlier years while she was still a student in my employ, is really just that very, like, reliable, honest. You know her integrity definitely stood out.
Q What would you say about her energy?
A She was very enthusiastic. I remember her talking a lot about wanting to volunteer, wanting to be involved. She had discussed running a non-profit one day. I remember that coming up. She was excited to come to work and just talking to people. That’s …
Q Did you ever -- during this period of time, did you ever know her to have any physical problems or limitations?
A No.
[73] A barista’s job performance is graded on a scale of 1 to 3. To receive a score of 3, an employee must consistently go over and beyond the job description. Ms. Kingston rated Ms. Pearson a 3. To do so, she first discussed the rating with a superior and then obtained district manager’s approval because a 3 rating results in a higher pay increase, and “we need to make sure that if we’re going to give a higher increase that it’s merited.”
[74] Ms. Kingston rarely rates an employee as a 3, as she did with Ms. Pearson in her first year of employment. However, Ms. Pearson went over and above her duties to take care of customers, had the ability to stay calm during periods of high volume, and was someone you could count on. Ms. Kingston testified:
A … So with Jess it was, you know, always coming to work on time, communicating in a very professional way. There was -- I don't know how else to describe it. There was no drama with her. It was like she showed up every day and did her best. She didn't leave jobs for other people to pick up the slack. You know, she worked harder than everyone else that she was working with. So she didn't expect other people to do her work for her. And we really covet that kind of energetic, you know, get-things-done attitude. …
…
… What I do remember with her is she -- when it says “anticipates customer needs or looking for cues.” She was really good at seeing if we were, you know, getting low on coffee. In the morning rush we need to get coffee, so she would be one that would communicate, you know, we need to brew more coffee right away. …
…
… [S]he had a maturity for her age and worked with a lot of young people that were the same age. There was actually, at that time, three other 17-year-olds. I had more teenagers that year. And she was, you know, one that would inform me, you know, if there was a party the night before, or something that was maybe going to involve the co-workers not doing their job. She was the -- you know, she was interested in her school work. She was interested in succeeding, not interested in the frivolous -- again, not a typical teenager. It made her stand out.
Q In terms of her maturity that way, where would she rank in sort of the employees you had at that time?
A Well above many of them that were twice her age, quite frankly.
…
… So the reason that she got a 3 was because she often would come in in emergency situations. She was as flexible as she could be and often would cover for her co-workers on weekends and was just someone that I knew I could call in that would come in. And she had more of an ownership over ensuring that the business ran smoothly. So I did award her a 3, which was very unusual.
[75] Everyone liked working with Ms. Pearson. She was a joy to work with. She even impressed Starbucks’ district managers and regional managers. Out of 10,000 Starbucks locations in North America, only five Starbucks stood out, and one of them was the Starbucks where Ms. Pearson worked because of her role modeling and spearheading a recycling program by using serveware (re-useable cups or personal tumblers that customers bring in). Ms. Kingston testified:
A … Jessica actually got the attention of someone in regional office as well at that time who was from Seattle, and was so impressed with her passion for recycling that they actually had me -- I'll make it a short story.
In New Orleans they honoured us with standing out. There was of 10,000 stores in North America only five. …They picked five stores as examples and named Jessica. I wish I had -- it was a large banner. It was about 10-feet high.
…
… It had her name on it and my name. For role modelling and spearheading a recycling program, and encouraging customers to use for-here [serve] ware instead of paper cups.
[76] Working at Starbucks, Ms. Pearson also participated with volunteering in many organizations. She helped organize and deliver hampers for Community Christmas Care, spent time with seniors at Hilltop House, a long-term care facility in Squamish, and helped pick up garbage as part of the annual community clean-up.
[77] When Ms. Pearson approached Ms. Kingston for a job at Starbucks in Squamish in May 2011, she was already fully staffed, but she hired Ms. Pearson because of her previous experience with her. But Ms. Kingston saw a dramatic difference in Ms. Pearson’s ability to do the job. She was no longer as enthusiastic or proactive. She no longer had the energy or spark that she had before. At times she noticed a slight slur in her speech, and at other times, she noticed that she would start talking but then go blank. She no longer had the same physical abilities and really struggled with the job. There was a deliberate slowness about her.
[78] Lindsay Sloan has worked at Discovery Kids Daycare since 2010 and has been the manager for the past six years. The daycare has two programs: a program upstairs for 25 children ages 3 to 5, and a program downstairs for 12 children ages 1 to 3. Ms. Pearson was hired as a part-time assistant from noon to 5:30 p.m. Her job was to assist in the care of children by helping them with toileting, eating, sitting with them during lunch and snack time, problem solving, helping at rest time or nap time, and program planning. Her benefits included three paid sick days a year. Any additional time off work for illness or disability was without pay.
[79] Ms. Sloan “very frequently” or “multiple times a week” saw Ms. Pearson physically struggling with her work. Sometimes she saw her take Naproxen as soon as she came into work. She had a bottle of Naproxen in the office/staff room. She often saw Ms. Pearson lying and stretching on the floor during the children’s rest time. She saw her having a hard time bending over or crouching to be at the same level as the children. She saw that while the work was physically hard for Ms. Pearson, she tried to push through it.
[80] At times Ms. Pearson came into her office visibly upset and in tears because the pain in her body was too much for her. However, Ms. Pearson also had good days when she was happy, full of light, “just like this bubble,” and the children loved her.
[81] The daycare accommodated Ms. Pearson’s physical constraints by having her work with the 3 to 5 year old children so that she could rest when they had their rest time. The physical duties for the 1 to 3 year old children involved too much lifting, carrying, and bending over cribs. Other staff helped Ms. Pearson with any cleaning or sweeping that was required.
[82] Ms. Pearson was encouraged to work more hours because there are few qualified daycare workers in Squamish and she did excellent work. She agreed to work a full day four days a week, and take the fifth day off to rest, but the increased hours did not go well for her. As Ms. Pearson increased her hours of work, her tolerance for work decreased.
[83] In November 2012, Ms. Sloan and Ms. Pearson began seeing each other socially when they began walking their dogs together. Since then Ms. Sloan has seen Ms. Pearson’s physical and emotional struggles worsen.
[84] Jill Beardmore has owned and operated Windflower in Squamish since February 2010. She has a tent flower stand outside of London Drugs that is open seven days a week during the warmer months, and a flower stand in Nesters Market.
[85] Ms. Beardmore first met Ms. Pearson when she came to her flower stand and was purchasing a bouquet of flowers for her former employer. Generally, Ms. Beardmore asks a customer to choose a couple of flowers and from those flowers she will put together a bouquet. However, she saw Ms. Pearson select all of the flowers and create the bouquet herself. It was “quickly obvious” that Ms. Pearson was very creative. She offered Ms. Pearson a job right there on the spot because the bouquet that she put together was really beautiful, very creative and tasteful.
[86] Ms. Beardmore observed Ms. Pearson’s physical limitations over the time that she worked, from November 8, 2015 to August 2016. She testified:
Q Okay. Now over the time that she's worked for you, did you observe her to have any physical limitations, in terms of your observations?
A Yeah, she definitely -- she wasn't able. She just actually was completely unable to lift the tent, and the tables and the heavier buckets of flowers. For example, sun flowers are larger and more substantial flowers. The buckets are really quite heavy. So she wasn't able to lift those heavier items. So as a result, my way around that was to -- I only ever scheduled Jessica to work at our Nesters location. And this is something that is very special to Jess. Because she was so good, and so creative and her work was really exemplary, her creative work was really exemplary, I really just worked around her needs and scheduled her only at the Nesters location. And further to that, only on days when we weren't receiving actual deliveries where there was more lifting and relocating of buckets and so on.
[87] It was obvious to Ms. Beardmore that Ms. Pearson was in discomfort and suffering from back pain. It was also obvious to her that Ms. Pearson wanted to be able to help her more than she could, but being on her feet for eight hours a day, lifting flower buckets “just became too much for her.” When asked what Ms. Pearson was like when she was at her best, Ms. Beardmore testified:
Jess is one of the most positive -- she's very personable. She is just a bright light. She's thoughtful. She's kind. She's caring. She's -- she's funny. She's smart. She's really a wonderful person. She's absolutely the epitome of the perfect -- if I can, you know, draw a picture of the perfect Windflower employee, it would be Jess. Of course obviously it would be Jess with a strong back and the ability to lift heavy buckets and tents. But she is absolutely wonderful with customers. She knows and understands how to be gentle and gracious, and she is just very much that way by nature. She's a wonderful, extremely likeable person. She was a real asset to my business.
[88] Russell Adams is 31 years old. His family moved from North Vancouver to Squamish when he was 8 years old. Following high school, he worked as a carpenter on large construction projects. For the last two years he has been a self-employed carpenter working on house projects. He began dating Ms. Pearson a couple of weeks after they met on her birthday on February 6, 2011. He lives in the small basement suite of the house he grew up in, and that is now owned by his brother.
[89] Mr. Adams testified that when Ms. Pearson worked at Discovery Kids Daycare, she suffered by going to work. When she returned home from work she just lay on the couch with an ice pack and heating pad. Sometimes when she returned home she was in so much pain that she would just go to bed.
[90] Mr. Adams (like his friend Mr. James) is “a really big outdoorsman.” During the warm weather months he wants to do outdoor things, but Ms. Pearson cannot participate with him. She finds it difficult to participate in sports, long walks, fishing, hiking, or riding an all-terrain vehicle. Any lifting, standing, or sitting for long periods of time aggravates her back and knee pain. Around the cabin Ms. Pearson needs help to get firewood and water, and at the cabin and at home she needs help to cook and clean.
[91] Last Thanksgiving Day weekend, they were at the cabin and went deer hunting. They had to take a short hike that should take only about 45 minutes. Just walking half-way up the hill aggravated her back pain and knee pain. He pushed her to go further up the hill, and she did. They shot a deer, but after that, she was no help to him because she was in so much pain. He had to drag the deer out of the bush by himself and carry both of their weapons down a logging road to get to his truck. The rest of the weekend “she was pretty much stuck in the cabin.”
[92] What seems to help her pain is rest, cold and hot compresses, and stretching. She stretches, and uses cold or hot compresses every morning and evening. Physiotherapy also seems to help, but after a physiotherapy session her pain is “pretty bad” for a couple of days afterwards. When she has a headache “it changes everything.” She becomes moody and irritable. She lies down in the bedroom where there is no noise, and no one can talk to her.
[93] Mr. Adams finds it difficult to watch Ms. Pearson struggling with pain and living life. He said that at the age of 27, she should be able to live her life and do all of the things that life has to offer her. Instead, in the middle of the summer, when he is out fishing or hiking and would like her to be with him, she is home lying down with a heating pad. She finds it difficult to play baseball, tennis, or to go boating.
[94] Mr. Adams and his brother play on a D league softball team that their father’s business sponsors. Ms. Pearson was also on their team. During the second inning of a game, Ms. Pearson was up to bat. She really tried to swing the bat, but broke down, started crying, and walked off the field. Instead of playing baseball, she had an anxiety attack. Now she will not play baseball or be on any other sporting team.
[95] Mr. Adams sees Ms. Pearson suffer anxiety every day. If she hears rain, she will not want to go outside. If she sees snow on the ground, her whole body tenses up and she will not want to go outside. When he drives and she is a passenger, she wants to sleep. If he gets cut off by another driver, she becomes so anxious that she almost holds onto her seat. She refuses to drive to the cabin or to Vancouver.
[96] Sometimes just simple things, like getting out of bed, making lunch for herself, or just walking the dog, is too much for her. She deals with her anxiety, low moods, and depression by sleeping a lot.
[97] Mr. Adams generally leaves the house for work around 7:00 a.m. and returns home around 5:00 p.m. After work, he still has the energy to pursue physical activity or recreation for four or five hours. If Ms. Pearson tried to do join him, she would not be able to work the next day and she would be in pain for the next two days.
[98] Mr. Adams would like to start a family with Ms. Pearson but has concerns with her ability to care for a child when tasks such as washing dishes and folding laundry are already very difficult for her. He has concerns about her ability to change diapers, feed a child, shop, and all that entails looking after a child, when she can barely manage looking after herself.
Physical Medicine and Rehabilitation
[99] Dr. Travlos, a specialist in physical medicine and rehabilitation, sometimes referred to as physiatry, assessed Ms. Pearson on November 9, 2011, for an independent medical legal assessment at the request of her counsel. He opined that Ms. Pearson’s symptoms including significant cognitive difficulties such as extreme forgetfulness, headaches, dizziness, neck and back pain, left knee pain, and her “fairly fragile” mental health and depression were caused by the collision in November 2010. He made a number of recommendations, including that:
1. Ms. Pearson work with an occupational therapist for approximately six to eight sessions to assist with organizational strategies for her memory so that she is less forgetful and more functional cognitively;
2. her headaches may respond to medication, meditation, self-hypnosis, relaxation strategies, and activities such as yoga;
3. she engage in a slowly progressive gym-based exercise program with a kinesiologist for at least three to four months;
4. she take prescription medication (a muscle relaxant) for her sleeping difficulties; and
5. she take anti-depressants, and 12 or more counselling sessions for her “fragile” mental health.
[100] Dr. Lisa Caillier, a specialist in physical medicine and rehabilitation, assessed Ms. Pearson on July 18, 2016 for an independent medical assessment at the request of her counsel. Dr. Caillier impressed me as having a thorough and impressive grasp of Ms. Pearson’s medical history. She conducted an extensive and detailed review of the clinical records and was able to note discrepancies or errors in some of the records. In her comprehensive report dated July 30, 2016 Dr. Caillier diagnosed Ms. Pearson as suffering the following as a result of the November 26, 2010 collision:
1. soft tissue musculoligamentous injury and chronic soft tissue pain involving the neck, upper back, posterior shoulder girdle and lower back regions;
2. chronic anterior left knee pain;
3. cervicogenic headaches;
4. emotional and psychological symptoms of depression and anxiety;
5. physical deconditioning secondary to a reduction in her usual activities;
6. cognitive symptoms involving complaints regarding her mood, anxiety, altered sleep, headaches, and pain;
7. altered sleep;
8. inability to resume previously enjoyed recreational activities;
9. ongoing difficulties with the ability to engage in work, secondary to the constellation of her physical, emotional, psychological and cognitive complaints.
[101] Dr. Caillier made the following comments, opinions, and recommendations.
1. Chronic pain
[102] Ms. Pearson’s mental health symptoms are contributing to her pain being magnified. Her pain negatively impacts on her sleep, mood, ability to be functional and active, and cope or manage her daily physical symptoms of pain, muscle tightness, and muscle tension. Her constellation of symptoms negatively impact on her ability to function at home, recreationally, or at work.
[103] Ms. Pearson should engage in a multidisciplinary chronic pain management program and an active rehabilitation program of 26 to 28 sessions with a kinesiologist in a gym-based one-on-one program, plus four to six sessions of kinesiology a year for the next three years to monitor her progress and ensure that she is not fearful of causing more pain because she will likely have flare‑ups of pain when she participates in an active rehabilitation program. She needs life‑long access to a gym and pool for pain management, and she needs to exercise three to four times a week to improve her overall physical conditioning.
[104] Dr. Caillier also recommends that Ms. Pearson have one to two sessions of intramuscular stimulation (IMS) a month. She may also benefit from Botox treatments or myofascial trigger point injections to assist with her headaches and neck pain. (Ms. Pearson had a Botox injection shortly before trial and she found it helped her headaches.)
[105] Ms. Pearson is unlikely to become pain free. She will continue to have pain in multiple body areas into the foreseeable future.
2. Mental health
[106] Dr. Caillier states:
In my opinion, her mental health symptoms negatively impact upon her physical complaints such that the pain becomes magnified and there is an intensification of the pain response as well as altered perceived disability in association with the pain rendering this higher than it should be. Mental health issues can also have a negative impact upon fatigue, sleep, and headaches.
[107] Ms. Pearson should be seen by a psychiatrist, and receive ongoing assistance from a psychologist to deal with her mental health and strategies to better manage her pain.
3. Sleep
[108] As Ms. Pearson lacks ongoing restorative sleep, she should have a sleep study done at a sleep clinic.
4. Physical deconditioning
[109] Ms. Pearson remains physically deconditioned and that limits her tolerance for activities at home, work, and recreationally:
The physical deconditioning combined with her constellation of her physical, emotional and psychological and cognitive symptoms has an impact upon her ability to be engaged in activities of her choosing, let alone continuing forward within a full-time work position.
She needs to improve upon her physical conditioning and participating in a kinesiology-based exercise program will likely prove beneficial, as well as carrying forth with independent exercise at least three to four times per week for 1 hour each time. She needs to do exercises beyond that of stretching. She needs to be working on the strengthening component.
She would benefit from participating in a regular-based exercise program and involve herself in a variety of activities in order to have a positive impact upon her physical conditioning which will then in turn have a positive impact upon the management of her pain as well as increase her endurance and tolerance for activities and lessen her fatigue.
5. Headaches
[110] Ms. Pearson describes her headaches as a pressure-type sensation in the front part of her head or frontal temporal region, but coming from her neck and shoulder girdle region. Any increase in her neck and shoulder pain increases the intensity of her headaches. Every three to six months she has debilitating headaches that are accompanied by light and sound sensitivity and nausea.
[111] Dr. Caillier opines that the headaches are cervicogenic in nature, or from the neck region, but the headaches may also be impacted by lack of restorative sleep and her mental health.
6. Cognitive complaints
[112] Dr. Caillier opines that Ms. Pearson’s cognitive dysfunction complaints and symptoms will likely continue until there is significant improvement in the management of her pain, sleep, headaches, and mental health complaints.
7. Prognosis
[113] Dr. Caillier’s prognosis for Ms. Pearson’s recovery is poor:
Improved management of pain will result in the pain becoming either more intermittent in nature on a daily basis or somewhat of a lessening in the daily intensity of pain as well reducing symptomatic flares of pain when involved in activities such as sustained posturing or heavier-based activities, but she will not become pain free.
Improved management of her pain will not result in Ms. Pearson having pain on a monthly basis or a biweekly basis. Instead, she can expect to still have ongoing flares of pain and pain on a daily basis depending upon the activity that she is engaged in.
There is increased susceptibility and vulnerability to worsening of pain should she sustain further trauma to the areas involved with her current complaints. Worsening of pain would have a negative impact on her ability to function at home and recreationally.
… she is also unlikely to become headache free. … She is likely to have ongoing headaches now and into the future.
…
In my opinion, Ms. Pearson’s main limiting factors preventing her from returning to her pre MVA level of functioning (pre November 26, 2010) are chronic pain, physical deconditioning, lack of restorative sleep, headaches, depression, anxiety, fatigue, low energy, as well as cognitive dysfunction.
In my opinion, there is reduced endurance and tolerance for sustained posturing whether this is sitting or standing as well as repetitive bending, lifting, carrying, pushing and pulling, and repetitive actions through the arm regions. There is reduced endurance and tolerance for typical home and recreational activities as well as work-related activities such as working within a childcare system and working at Starbucks.
[114] Dr. Caillier opines that Ms. Pearson is capable of being employed in some capacity, but whether she will be able to consistently maintain a full-time workload is unknown. She is likely to be able to work in a part-time fashion provided there is improved management of her pain, mental health, sleep, and headaches.
[115] In cross-examination, it was suggested to Dr. Caillier that Ms. Pearson’s pain and ability to function would improve if she followed the medical advice and recommendations. Dr. Caillier testified that there is a possibility that there may not be much improvement, even if Ms. Pearson followed the recommendations. She will not become pain free, and there is no cure for chronic pain:
Q … Fair to say you wouldn’t rule out the possibility of Ms. Pearson improving her pain and function if she follows the medical advice and recommendations that you’ve provided and others provide in the July 2016 time frame?
A With recommendations made, if there’s benefit from these, then looking at improved management of her physical symptoms. But not everyone deems the benefit that we anticipate from recommendations made. There’s always that possibility that there won’t be much, if any, gains made unfortunately.
Q So is that yes?
A Yes, I would anticipate that provided she benefits from recommendations made that there be improved management of her pain, but she won’t become pain free.
Q No one ever becomes pain free when they have chronic pain?
A I have yet to have anyone in my own clinical experience who has become pain free, even after people have been involved in litigation and I’m still seeing them in my office, they have not become pain free. There can be increased capacity to cope when this portion of it is completed, but I have yet to have anyone become pain free.
Q And these are a range of people, not just car accident victims, there’s a range of people you see that have chronic pain issues; correct?
A That is correct. There’s no -- as of today there is no cure for chronic pain. I wish there was, but unfortunately there is not.
Neuropschology
[116] Dr. Bogod, a clinical neuropsychologist, conducted a full day independent medical assessment of Ms. Pearson on February 6, 2012, and re-assessment of her on April 11, 2016, at the request of her counsel. The results of her testing in February 2012 revealed the following profile for Ms. Pearson arising from the collision:
1. a psychological profile “suggestive of extreme states of distress which can result in overestimation of the overall level or severity of psychopathology”;
2. severe symptoms of depression, significant anxiety, worry, fatigue and weakness;
3. confusion, distractibility and difficulty concentrating;
4. Ms. Pearson is highly motivated for treatment and has a positive attitude towards change, although treatment would be fairly challenging;
5. Ms. Pearson meets the criteria for a diagnosis of PTSD; she has intrusive thoughts about the collision, avoids thinking about the collision, startles easily when she is in a vehicle, experiences anxiety as a passenger in a vehicle, and has improved but persistent nightmares of the collision.
[117] Following his April 2016 re-assessment of Ms. Pearson, Dr. Bogod reported that:
1. Ms. Pearson continues to meet the DSM-V criteria for major depressive order which is now chronic with associated suicidal ideation;
2. her DSM-V criteria for PTSD is in partial remission following counselling sessions with Dr. Verna Amell, psychologist at GF Strong in Vancouver;
3. she may have a possible diagnosis of panic disorder although that requires further investigation as the symptoms may be subsumed within the criteria for PTSD; and
4. her cognitive complaints of “brain fog”, feeling like she is on auto-pilot with blank parts of the day, and poor concentration, misplacing things, difficulty finding words or accessing information when problem solving, are likely chronic.
Psychologist
[118] Dr. John Pullyblank, a registered psychologist, conducted 14 hours of interview, and a psychological and vocational assessment of Ms. Pearson on March 14, April 11, and May 23, 2012, and an update on May 29, 2013.
[119] Formal testing shows that Ms. Pearson has generally average to high average intellectual ability and verbal academic skills. She has an area of comparative weakness in mathematics and that may have accounted for her not doing as well in some of her mathematics based courses as she did in other courses. However, Ms. Pearson was more than capable of completing a university degree, although she may have switched from a degree in business administration to a program of studies closer to her preferences.
[120] In cross-examination, Dr. Pullyblank testified that when he interviewed Ms. Pearson in 2012, she was very honest and straight up: she had been wondering about the business administration degree program, and like many young people, she was not certain about what she wanted to do. However, Dr. Pullyblank further testified that her tests results suggest that she has a “strong creative bent,” and with her strong marks in marketing, she may have changed her program from business administration to marketing or public relations.
[121] Dr. Pullyblank re-assessed Ms. Pearson during a further six hours of interview and psychological testing on October 13, 2016. In his report dated October 20, 2016, Dr. Pullyblank opines that since he last saw Ms. Pearson three years ago, she shows some improvement in her perception of pain and emotional functioning, but she “continues to have significant barriers to employment and continues to be in need of more concerted rehabilitation intervention.” Her significant barriers to employment are:
1. Physical. Ms. Pearson experiences ongoing chronic pain that has a general adverse impact on her functioning, as well as significantly limiting her capacity for specific activities, such as the prolonged sitting that would be required for postsecondary education/training. This reduces her feasible employment options and sustainable working hours.
2. Psychological. Ms. Pearson continues to experience high levels of anxiety and depression that impair her day-to-day functioning, and quite likely impair her productivity on worksites. As has been repeatedly described in her case, her emotional distress will also heighten her health fears and chronic pain.
3. Social. Ms. Pearson continues to isolate to a degree due to her physical and psychological problems and is unlikely to feel comfortable in some of the socially demanding jobs she did pre-accident.
4. Credentials. Ms. Pearson's post-accident efforts stopped after the accident and in my opinion this is due largely to the physical and psychological symptoms attributable to the accident. Therefore, although she has the tested intellect and educational records of someone who could complete a degree, her postsecondary education stalled with the accident, thereby reducing her employment options and advancement. In addition, she has had an irregular post-accident work history such that she has not built up any particular expertise, but must rely on available service jobs that do not require a lot of formal credentials.
5. Reliability. Due to her pain and distress, Ms. Pearson has had difficulty retaining jobs and sometimes has to leave work due to the build of symptoms. This reduces her apparent reliability to employers.
6. Attractiveness to employers. Given the barriers discussed above, most or all of which will become apparent to employers, Ms. Pearson is likely to be less attractive to potential employers.
7. Geography. In my experience, it is not uncommon for there to be a vicious cycle of physical and psychological symptoms, reduced employability, financial hardship, fear, and withdrawal to smaller urban centres. Perversely, these centres are correspondingly less likely to have the services the person needs, and typically have an even narrower range of employment options suitable to their employment barriers. As a result, the move to these areas is at high risk of resulting in an overall decrease in the individual’s outcomes. Therefore, using population estimates from the internet, Ms. Pearson has moved from Vancouver (603,500) and Greater Vancouver (2.5 million) to Squamish (17,160) and is currently seriously contemplating a move to Lillooet (2,324).
[122] Ms. Pearson is not likely to make any significant progress recovering unless she has a clear rehabilitation plan that includes the following:
1. Occupational Therapy: evaluation by an occupational therapist to establish an initial rehabilitation plan and to provide ongoing monitoring and case management.
2. Psychotherapy: weekly sessions with a registered psychologist, such as a registered psychologist at the North Shore Stress and Anxiety Clinic to deal with her anxiety, mood, and pain management. Dr. Pullyblank suggests at least 12 weekly sessions before evaluating her treatment requirements.
3. Psychiatry: evaluation by a psychiatrist including evaluation of her medication and psychoactive medication.
4. Pain Management: a multidisciplinary pain clinic which is “the treatment of choice for chronic pain,” but “cost prohibitive for any individual.”
5. Structured Physical Rehabilitation: subject to medical opinion, Ms. Pearson should benefit from a structured and monitored exercise program.
6. Psychological Re-evaluation: Ms. Pearson should be re-evaluated when her progress has plateaued.
7. Career Counselling: after Ms. Pearson’s recovery has plateaued, career counselling will help her consider career options based on her residual disability.
[123] The defence relies on the report of registered psychologist Dr. William Koch who saw Ms. Pearson on September 8 and October 20, 2016. Dr. Koch diagnosed Ms. Pearson as suffering from PTSD, persistent depressive disorder, and generalized anxiety disorder. Dr. Koch also diagnosed Ms. Pearson as suffering from somatic symptom disorder and panic disorder with agoraphobia since the mid-2000s.
[124] However, there is nothing in the medical records to suggest that prior to the collision Ms. Pearson suffered from chronic pain or agoraphophia. The evidence demonstrates quite the opposite.
[125] Dr. Koch made his diagnosis on the basis of reviewing the clinical records after he assessed Ms. Pearson. He never interviewed her after he reviewed her clinical records and based his opinion on incorrect assumptions. As Dr. Caillier noted, there is an obvious error in an entry in the clinical records that suggests that Ms. Pearson had a history of chronic back pain from 2004 to 2009. Dr. Koch also incorrectly assumed that because Ms. Pearson frequently attended Lion’s Gate Hospital emergency ward, she suffered from chronic pain. However, if he had asked Ms. Pearson about her attendances at emergency, he would have learned that growing up in Squamish – which had no walk-in medical clinic until around 2007 –Ms. Pearson learned to attend the emergency ward at the hospital in Squamish for any of her medical concerns. Living on Lonsdale in North Vancouver, she lived close to the emergency ward at Lion’s Gate Hospital, and she went there for any medical concerns that she had.
[126] I give no weight to Dr. Koch’s opinion. Although he agrees that Ms. Pearson’s somatic symptom disorder needs treatment at a multi-disciplinary pain management clinic, he is not optimistic about any outcomes.
Orthopaedic surgeon
[127] The defence relies on the report of Dr. O.M. Sovio, an orthopedic surgeon. Dr. Sovio examined Ms. Pearson on October 14, 2016, and concluded that his physical examination of her “failed to show any significant physical and structural abnormalities.” However, Ms. Pearson does not claim that she suffered any significant physical or structural abnormalities as a result of the collision. As Dr. Sovio further concludes in his report:
There appears to be a significant psychological component to the patient’s complaints but I am unable to comment on that as that is out of my field of expertise but suffice it to say that the patient’s ongoing wide spread subjective complaints and disability cannot be explained on any one specific structural or specific musculoskeletal injury.
…
As far as the psychological and psychiatric aspects of this situation are concerned I will leave the pronouncements to my psychiatric colleagues to make.
Family Physician
[128] Dr. Kranz is a medical doctor who first saw Ms. Pearson at the Elaho Medical Clinic in Squamish on September 22, 2011 when she came for a referral to see a physiotherapist Derek Kyle and a refill for Cymbalta.
[129] Dr. Kranz did not prepare an expert report. However, he was aware that Ms. Pearson had concerns about the side effects of certain medications, including anti-depressant medication. In cross-examination the defendants sought to establish that Ms. Pearson never reported any side effects from Cymbalta. He testified that he was unable to say without having his computer in front of him. He had only his clinical records with him at trial.
[130] Dr. Kranz is familiar with the barriers and difficulties with patients following a recommended course of treatment. It includes having a patient “buy in” to the recommendations, the patient’s financial means, and the patient’s ability to carry out the course of treatment which is often negatively affected when a patient suffers from depression. He is aware that Ms. Pearson lacked the financial resources to pursue the treatments that were most beneficial for her.
Physiotherapist
[131] Derek Kyle is a physiotherapist in Squamish who has treated Ms. Pearson since August 11, 2011. Ms. Pearson’s primary problem relates to the areas of muscle in her lower back that are in pain, and as a result are inhibited or turned off. That in turn causes other muscles to over-compensate or be over-used, and become tight. Ms. Pearson needed to retrain her core muscles so that she could recruit or use them. This requires consistent manual or physical therapy. He recommended that she have one to two sessions a week for 8 to 12 weeks.
[132] However, Ms. Pearson consistently reported a lack of funds to follow through on the recommended treatment program. She attended only seven physiotherapy sessions in the first 28 months following the accident, and an additional six sessions in 2013. From August 11, 2011 to December 2, 2016 she attended a total of 62 sessions.
[133] In July 2014 Mr. Kyle began treating Ms. Pearson with intramuscular stimulation or IMS, which is applying 30 to 40 needles to the muscles that are very tight, in an effort to have the muscle relax so that she can recruit or properly use the muscle. She reported that the IMS treatments helped.
[134] Mr. Kyle observed that when Ms. Pearson was working at the daycare, her symptoms were much worse, with tighter muscles and reduced mobility.
Functional Capacity Evaluator
[135] Louise Craig is a certified functional capacity evaluator, with extensive qualifications.
[136] Since 1989 she has been a registered physiotherapist, and has completed extensive post-graduate studies in sports medicine, orthopaedic physiotherapy, functional capacity evaluations and cost of future care/life care planning. For her masters of business administration degree which she obtained in 1998, she focused on cost-effective management in health care, specifically on rehabilitation. She has been widely accepted as an expert witness in the fields of functional capacity evaluation, cost of future care analysis, and physiotherapy.
[137] Ms. Craig conducted a full day functional capacity evaluation of Ms. Pearson on September 27, 2016.
[138] I think it is important before considering the results of Ms. Craig’s conclusions and recommendations to address the defendants’ contention that Ms. Pearson “clearly demonstrated a vocationally significant capacity to work in the five years post-Accident.” She worked at the daycare for four years, did not take significant time off, and failed to mitigate her damages, by quitting her work at the daycare, without medical advice telling her to do so.
[139] Ms. Pearson told Ms. Craig, and as she testified at trial, she has worked at various jobs since the collision of November 26, 2010, but she has quit each of the jobs because the cumulative demands of each job aggravated her pain and fatigue to the point that it became intolerable.
[140] Ms. Pearson’s complaints and the observations of the lay witnesses are consistent with Ms. Craig’s findings during the one day of testing. She assessed Ms. Pearson’s performance with a series of repetitive tests at the start and at the end of the day. A healthy person will show sustained or slight improvement in their performance over the course of the day. Ms. Pearson showed significant decline in her performance throughout the day.
[141] The range of occupations that were formerly viable for Ms. Pearson from a physical perspective has been reduced as a result of the collision in November 2010, and she is left with reduced competitive employability.
[142] Ms. Craig’s conclusions and recommendations include the following:
1. Ms. Pearson is unable to sustain the full time workload of the jobs she worked at following the accident, if the jobs involved constant standing, or more active work such as reaching and handling, bending down, lifting and carrying. She is better suited to part-time work in the light physical demands category, and she requires accommodation. She needs the flexibility or opportunity for postural relief or mobility breaks after 30 to 45 minutes of intensive work sitting, and after 20 to 30 minutes of static standing. She demonstrates signs of pain and fatigue and there are objective signs of reduced capacity;
2. The decline in Ms. Pearson’s repeat testing over the day was in the range of 14 to 40 percent, and clinically significant. At the ends of range testing, her spine movements were stiff, and demonstrated loss of range and speed of cervical movements;
3. Ms. Pearson demonstrates the capacity to partially meet the physical demands of a barista, early childhood assistant - day care, in a part-time capacity. She also demonstrates the capacity to partially meet the physical demands of her aspired job in sports marketing and merchandising, and her current job as a server;
4. Ms. Pearson is unable to work in more physically demanding jobs. She requires accommodation for occupations with light to low medium physical demands so that she can change her position by stretching regularly, breaks, and with proper ergonomics so that she can manage aggravating her symptoms;
5. Ms. Pearson may likely benefit with an occupational therapist to help her develop strategies for coping with her anxiety, reduced concentration, fatigue, and pain;
6. Ms. Pearson is likely at or close to maximum physical rehabilitation. She has signs of core and mid-to-low back weakness and fatigability, and mild weakness in her left knee. She is encouraged to participate in a regular structure exercise program to address those weaknesses, and to prevent further function decline as a result of her activity avoidance. A series of supervised exercise sessions for the next two to three years is recommended so that she can maintain an appropriate and targeted exercise routine. She will require access to a gym in the long term so that she can maintain an appropriate exercise routine;
7. Ms. Pearson requires additional and an individualized rehabilitation program with a physiotherapist, consisting of 12 sessions for her left knee, and 12 sessions of physiotherapy or massage therapy, or similar therapy annually for pain management and to help her maintain strength and flexibility, and to deal with problems as they arise arising from biomechanical changes that have arisen from the injuries she sustained in the accident;
8. Ms. Pearson requires periodic help for regular household cleaning and she needs assistance with heavier and seasonal cleaning, such as washing walls, windows, and blinds. She also needs assistance for heavier or repetitive yard work, such as shovelling, raking, digging, or carrying soil or plants.
Psychiatrist
[143] Dr. O’Shaughnessy conducted an independent psychiatric assessment of Ms. Pearson on July 18, 2016 and reviewed extensive records. He opines that as a result of the accident, she meets the diagnostic criteria for the following:
1. PTSD in partial remission;
2. major depressive disorder in partial remission; and
3. somatic symptom disorder.
[144] In his report, Dr. O’Shaughnessy describes somatic symptom disorder:
A Somatic Symptom Disorder is one of the disorders in which individuals present with physical complaints but in which psychological factors are deemed to be playing a significant role. The most common psychological factors are alterations in the person’s thinking and behaviour in which they become entirely preoccupied with the complaints of pain to the point where it causes an exaggerated pain response. As in Ms. Pearson’s situation, she focuses on pain constantly and has a number of associated features including avoidance of any activity that she fears may worsen the pain or further any injuries. She is unable to take her mind off the pain and it has become quite predominating. Pain fear and pain avoidance are quite clear in the history in the medical records.
[145] Dr. O’Shaughnessy, like other medical experts, notes that Ms. Pearson intermittently uses anti-depressants and has intermittent psychological treatment. He recommends a more focused rehabilitation program such as the recommendations of Dr. Pullyblank and others, but that has not happened because of her financial limitations. He also recommends a referral to a kinesiologist for a structured rehabilitation program, and a referral to a psychologist for further cognitive behavioural therapy for her complaints of pain, anxiety, and somatic symptom disorder. He states:
I would also recommend a referral to a psychologist for further cognitive-behavioural therapy focusing both on her anxiety as well as on her complaints of pain and the Somatic Symptom Disorder. It is clear she has developed a number of maladaptive behavioural patterns that need to be addressed. These are basically related to her passivity and social withdrawal in which she now perceives her life to be a dangerous situation and she avoids taking any risks. She has become excessively timid and passive which itself has led to significant disability. Her thoughts of going to an even further remote town like Lillooet are consistent with this anxiety and frankly I think this would be an error if she were to follow this plan. What is clear in any management of Anxiety Disorder is to encourage the individual to face their fears, which overcomes the anxiety. …
[146] Ideally, the focussed rehabilitation program and the psychological counselling would operate together, that is, a pain program that focuses on both the physical and psychological components of her recovery. Such a pain program may not be available in Squamish, although local professionals may be able to put together a make-shift program, and communicate with each other. A structured pain program is available in Vancouver, but Ms. Pearson has anxieties driving to Vancouver.
[147] After attending a structured pain program, which may take six weeks, Ms. Pearson will require ongoing follow up with professionals in her community. Even with a focussed or structured pain program, Dr. O’Shaughnessy’s prognosis for Ms. Pearson’s recovery is guarded. In cross-examination by the defence, he testified:
Q And I take from the statement that you make there that the treatment you've recommended, and as has been recommended by Dr. Pullyblank previously, it's fair to say will likely result in a substantial improvement in the plaintiff's day-to-day functioning?
A I mean, you don't know if it will be a substantial improvement or not. It's probably going to help her. At this point it's very hard to determine how much benefit she will retain and you can only really tell after you've tried it. I mean, we're talking now this is a number of years in the making, this is behaviour that's fairly well entrenched, attitudes and thoughts that are very well established. Again, we're not going to see that turnaround in a few weeks of a program, so what you want to do, and the focus is -- in some ways we call it tertiary kind of prevention.
…
A In other words, we don't want her to get worse and my fear, at the time I saw her, was her decision to move to an even more isolated community would in fact possibly make her worse, render her even more limited in functioning. So you want her to be as active as possible, face the fears, prevent any deterioration in her physical and psychological abilities. The big question is how much better can she get and can you ever get her back to the way she was and the answer to that is we don't know and you won't know until you pull it all together and see how she responds.
Q So it’s no guarantee, but with proper treatment and a program we talked about, you would expect some level of improvement in day-to-day functioning?
A I would hope. Certainly better management. Again, you are looking at she may well go on to have chronic pain, but it's that relationship with the pain you want to change so that -- I mean, chronic pain is a very common problem. I mean, a lot of people have chronic pain. They don't have somatic symptom disorder and they are quite different. So she may well have ongoing pain, but what we work with people is to try and have that affect them less so they are less dysfunctional, and that's really the goal. So, I mean, will she have pain? Probably. Will it get worse if she has an injury or if she gets sick or strains herself? Probably. But you really want to make sure they don't kind of retire into their little cabin and never leave, you know, that's a very dysfunctional and disabling process.
…
Q Do you agree with me that another, in terms of hoping for improvement, another positive prognostic sign may be that she hasn't really received appropriate treatment for her conditions to date?
A Yeah. Again, she hasn't received the kind of program we need. The downside is just the longevity of the symptoms and the disability and the demoralization that has occurred, you know, trying to overcome that is going to be adding to the burden.
Neurologist
[148] The defence relies on the report of Dr. Rehan Dost who assessed Ms. Pearson on August 18, 2016 and concluded that she did not suffer a brain injury. Dr. Dost was not required to attend for cross-examination because Ms. Pearson does not claim that she suffered a brain injury or any other structural or physical abnormality as a result of the collision. However, he endorsed the recommendation for Botox injections for her headaches.
[149] The defendants argue that Ms. Pearson failed to mitigate her damages by failing to follow the treatment recommendations made in 2011 and 2012 by Drs. Travlos, Bogod and/or Pullyblank:
1. a complete rehabilitation program, including psychotherapy and a gym-based exercise program with a kinesiologist, and medication for her pain, headaches, and psychological symptoms (Dr. Travlos);
2. intensive psychotherapy for between 6 to 12 months (Dr. Bogod); and
3. a complete rehabilitation program, including occupational therapy, psychotherapy, psychiatry, pain management, structured physical rehabilitation, and career counselling, for between 6 to 12 months (Dr. Pullyblank).
[150] In addition, Ms. Pearson failed to take anti-depressant medication as recommended by her general practitioner Dr. Kranz. Dr. O’Shaughnessy in his report stated that she had no prescriptions filled for Cymbalta from February until May 2012. She had one prescription filled in May 2012, and no further prescriptions until November 2012. She started Cipralex in October 2013, but did not take it on a regular basis. She took it regularly from August 2015 to January 2016, but after that, there were no more prescriptions filled.
[151] The onus is on the defendants to prove that Ms. Pearson could have avoided all or a portion of her loss. Where a plaintiff has not pursued a course of recommended medical treatment, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had she acted reasonably: Janiak v. Ippolito, [1985] 1 S.C.R. 146, and Chiu v. Chiu, 2002 BCCA 618 at para. 57.
[152] In Janiak, Madam Justice Wilson stated at 159:
… It seems to me that the line must be drawn between those plaintiffs who are capable of making a rational decision regarding their own care and those who, due to some pre-existing psychological condition, are not capable of making such a decision. As pointed out by Professor Fleming, a plaintiff cannot by making an unreasonable decision in regard to his own medical treatment “unload upon the defendant the consequences of his own stupidity or irrational scruples”: Fleming, The Law of Torts (6th ed. 1983), p. 226. Accordingly, non-pathological but distinctive subjective attributes of the plaintiff's personality and mental composition are ignored in favour of an objective assessment of the reasonableness of his choice. So long as he is capable of choice the assumption of tort damages theory must be that he himself assumes the cost of any unreasonable decision. On the other hand, if due to some pre-existing psychological condition he is incapable of making a choice at all, then he should be treated as falling within the thin skull category and should not be made to bear the cost once it is established that he has been wrongfully injured.
[153] In Cassells v. Ladolcetta, 2012 BCCA 27, Mr. Justice Lowry, for the Court of Appeal, stated at paras. 25-26:
[25] The judge then quoted further from Janiak to support the proposition that where it is the accident itself that impairs a plaintiff's ability to make a reasonable decision about treatment, it would appear unjust to limit his recovery because he failed to mitigate the loss claimed. The judge then said:
[199] Canadian law rejects the wholly subjective analytical approach of U.S. law. Janiak however leaves the door open to a modified subjective approach where the plaintiff's decision-making capacity has been less than wholly incapacitated by accident-induced injuries. Where it is found on the evidence that the effect of accident induced injuries has been to inhibit substantially the plaintiff's capacity to make the objectively reasonable choice, Janiak, in my view, leaves it open to the trier of fact to take that commensurately into account in assessing the degree to which damages should be reduced.
[26] I agree that if, by virtue of the injury sustained in an accident, a plaintiff is unable to make a reasonable decision about treatment, the plaintiff is in no different position with respect to mitigating the loss suffered than would be the case if, for other reasons unrelated to the accident, the plaintiff's capacity to make reasonable decisions about treatment was lacking. But I cannot accept that means the law prescribes a subjective test, modified or otherwise. Janiak is clear; the test is objective. I consider that if a plaintiff had the capacity to make the decision about treatment it is said ought to have been made, and the advice was sound, the mitigation question in each instance must be what would be expected of a reasonable person in the circumstances having regard for the plaintiff's medical condition at the material time and the advice given concerning treatment. If, through no fault of his own, the plaintiff did not have the capacity to make the decision, or the advice was not sound, the question would not arise.
[154] In Yungen v. Fraser Health Authority, 2012 BCSC 933, Madam Justice Fenlon (as she then was) stated at paras. 66-68:
[66] The crux of the defendant's submission on mitigation is that the plaintiff failed to follow recommended treatment for exercise and psychological counselling. The difficulty with this submission is that Ms. Yungen was sore, depressed and anxious, which according to Dr. Caillier made it harder for her to have the motivation and organizational skills to exercise.
[67] Further, the plaintiff did attend yoga and she did walk on occasion. She also went for physiotherapy, chiropractic and massage therapy. As for psychiatric treatment, the plaintiff tried a group session for counselling but was not comfortable and did not continue with that. Dr. Rossouw said that in Powell River there was no psychiatrist until very recently, and only one psychologist who charges $150 per hour. A psychiatrist is now available one day a week and has an 18-month waiting list. Dr. Rossouw said for Ms. Yungen to receive individual therapy she would have had to travel outside Powell River which involves either one or two ferry rides to get to the Island or the Lower Mainland, and would be expensive. While Ms. Yungen did travel on occasion to see specialists, I do not find it reasonable that she should be faulted for not undertaking weekly or monthly regular trips to see a psychologist or psychiatrist in another city.
[68] In these circumstances I do not find the defendant has proved that the plaintiff failed to mitigate.
[155] In Wagner v. Newbery, 2015 BCSC 894, Mr. Justice Blok stated at paras. 231-233:
[231] I agree that Ms. Wagner has not been diligent in following treatment recommendations. I find that Dr. Koo's opinion does not meet the test set out in Gregory v. ICBC as he spoke only of the possibility of symptom improvement. Dr. Ganesan's opinion, quoted above, does meet the test, although I note that his opinion was limited to Ms. Wagner's emotional well-being.
[232] There is, however, another problem with the defendants' mitigation argument because the circumstances suggest Ms. Wagner's lack of diligence may well be part of her depressive symptoms. Certainly, the defendants have not shown that it is not a consequence of depression, and they have the burden of proof on this issue. A plaintiff cannot be found to have failed to mitigate damages where that failure stems from a condition that the defendants themselves have caused, at least in part.
[233] Accordingly, I conclude the defendants have failed to meet their burden of proof on this issue.
[Emphasis in original.]
[156] I find that the defendants have failed to prove that Ms. Pearson unreasonably failed to mitigate her damages for a number of reasons.
[157] Dr. Caillier testified why chronic pain patients have difficulty following or adhering to treatment recommendations:
A The question often becomes, particularly for chronic pain patients is how can we have them engage in these particular recommendations. I often find within my own clinical experience, particularly when someone is struggling with their mental health, that trying to have them engage in an active rehabilitation program, even when it’s set up for them, they don’t necessarily follow through with that. … They don’t follow through with the independent exercise program. And it can be this interest and motivation that can be the biggest issue. … Interest and motivation as the biggest issue that -- for them to engage in the recommendations in order to allow for improvement and improved management of not only their pain but also their mental health. … I’m just explaining in terms of within my own clinical experience why I’ve had my own patients who haven’t followed through with recommendations, and it can be several years down the road where they finally do what has been recommended. …
[158] Dr. Travlos explained that it is not uncommon for patients suffering from chronic pain and depression to fail to follow treatment recommendations. There are many factors, including the fact that patients suffering from mood disorders are hard to treat because they suffer from anergia or the chronic lack of energy, initiative, drive, or motivation to complete everyday tasks. They understand what they should do, but do not carry it out. Another factor is the “social circumstances” of the patient. If the patient is living at home in a supportive environment, he or she is generally encouraged by family members who drive him or her to appointments and force them to get going. If the patient lives out of town, or without family support, it is harder for them to get going, and it becomes a harder cycle to break. It is not uncommon for chronic pain patients to start taking medication and then stop.
[159] Dr. Kranz testified that a patient who suffers from depression also suffers from decreased motivation and increased forgetfulness. They forget appointments, forget to make appointments, and are often not able to organize their life sufficiently to get the treatment they require, such as counselling and physiotherapy. Ms. Pearson also lacks the financial resources in order to comply with the treatment that she needs.
[160] Dr. Pullyblank explained the difficulties Ms. Pearson faces with rehabilitation:
Overall, what is consistently most notable in Ms. Pearson's case is her high level of social discomfort and withdrawal and the struggle she has had to “get out there." Social withdrawal is common with individuals with chronic pain for reasons that include avoiding the physical discomfort of activities such as dancing or sitting through a movie, not feeling they can keep up with others, and not wanting to keep answering questions about their recovery. Social withdrawal is also common with individuals experiencing cognitive symptoms for reasons such as the information demands of social situations may be overwhelming, and they are concerned about embarrassing themselves by making errors. Finally, social withdrawal is a hallmark effect of depression and anxiety. Ms. Pearson's specific case is even further complicated by her moving in with her boyfriend in Squamish in order to save money following the accident. This isolates her from her friends in Vancouver, both in terms of distance, as well as the distress she experiences while driving, and particularly while having to drive past the accident site in order to get to and from Squamish.
…
In my opinion, Ms. Pearson's rehabilitation has likely been adversely affected by her comparative isolation in Squamish. … [I]t is my opinion that Ms. Pearson needs a clear rehabilitation plan if she is going to make progress in her recovery.
[161] There are few, if any, of the required rehabilitative resources that Ms. Pearson requires, available to her in Squamish. They are in Vancouver. She is too scared to drive to Vancouver as a result of the accident. She cannot afford the treatment she requires. Dr. O’Shaughnessy noted that she likely discontinued Cymbalta because of its cost, and Dr. Pullyblank expressly noted that a multidisciplinary pain clinic is cost prohibitive for any individual.
[162] Ms. Pearson was too depressed and too tired from working to seek treatment after work or to even refill a prescription. As the medical evidence establishes, she suffers from cognitive complaints: she is forgetful. She would forget to refill a prescription, and before she knew it, she would sink into a hole of depression, and be unable to make even a phone call, an appointment, or refill a prescription. If Ms. Pearson has failed to follow any of the treatment recommendations, the failure is largely a result of the symptoms she suffers as a result of the accident.
[163] I find that, as a result of the motor vehicle collision of November 26, 2010, Ms. Pearson sustained largely soft tissue injuries as outlined by Dr. Caillier, and suffers from chronic pain in her neck, back, and left knee and debilitating headaches. She sustained psychological injuries and suffers from depression and anxiety, symptoms of PTSD and major depressive disorder which are in partial remission, physical deconditioning, symptoms of cognitive dysfunction, altered sleep, somatic symptom disorder, difficulties with her former recreational activities, and difficulties with her ability to work. Her life has been drastically changed.
[164] The prognosis for her recovery is poor, and at best, guarded. There is hope that with a focussed rehabilitation program she can better manage her physical and psychological symptoms. However, she will have ongoing pain into the future, and likely never be pain free.
[165] Before the accident, Ms. Pearson by all accounts was a happy, bubbly, extrovert who exuded joy. She loved life, sports, school, and helping people. She was creative, had emotional intelligence, and an attachment to the work force. She was an exceptional employee. She was mature for her age. She stood out.
[166] She now isolates herself, struggles with simple household chores, is afraid to drive on the highway to Vancouver, and spends much of her time in bed when she should be outside enjoying life. Despite her pain, she pushes herself to work as much as she can. At times, she feels that she does not deserve to live. The person she used to be and remembers is no more. However, the evidence discloses that there are times when Ms. Pearson will have a good day and be happy, full of light, “just like this bubble”. But she has far more bad days, than good days which appear to be scarce. It all negatively impacts on her relationship with family and friends, and with Mr. Adams.
[167] Ms. Pearson submits that an appropriate award for non-pecuniary damages is $200,000. The defendants submit that an appropriate award under this head of damages is in the range of $75,000 to $110,000, subject to deduction for mitigation.
[168] The leading authority on the assessment of non-pecuniary damages is Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46:
[45] Before embarking on that task, I think it is instructive to reiterate the underlying purpose of non-pecuniary damages. Much, of course, has been said about this topic. However, given the not-infrequent inclination by lawyers and judges to compare only injuries, the following passage from Lindal v. Lindal, supra, at 637 is a helpful reminder:
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.).
[Emphasis added in Stapley.]
[46] The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably be subsumed in the above list:
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).
[169] At the time of the collision Ms. Pearson was 21 years old. She was young, healthy, athletic, full of joy, energetic, hard-working, and very outgoing. She had ambitions about her education and career, and as her father put it, she had a trajectory.
[170] The soft tissue, psychological, and psychiatric injuries sustained by Ms. Pearson as a result of the collision have impacted on all of those positive attributes of Ms. Pearson’s young life, including her ability to continue with her university education, her ability to work, and her ability to enjoy life. Instead she endures chronic pain, headaches, depression, and anxiety. As Mr. Adams testified, Ms. Pearson is missing out on doing all of the things a young person of her age should be doing, and all of the things she would have been doing and enjoying, but for the accident. Instead, on a nice day when she should be out hiking, boating, fishing, or snowboarding, she is at home in bed with a heating pad. She will never been pain free. Her injuries have negatively impacted on her relationship with her family and friends, and Mr. Adams. However, Ms. Pearson is instilled with a strong work ethic, and has worked as much as she can despite her pain.
[171] Dr. Caillier succinctly summarized what can be described as Ms. Pearson’s pain and suffering and loss of enjoyment of life:
Ms. Pearson still has anxiety every day. It is intrusive. There are negative thoughts. It will just take over. It is an everyday battle to keep going forward. She feels depressed. She describes the anxiety and depression as being “evil twins”.
…
Sometimes she will have thoughts of suicide but these are passive thoughts and not active plans.
She describes herself as feeling worthless. She is not contributing to society. She just consumes resources on a planet where there are not a lot of resources. She does not know if she has the energy to make it through her whole life living life like this. It has taken so much to just get through to where she is at now with being in pain as well as having the anxiety and putting a smile on.
She reports that she would be okay if she was not alive. This would be easier than how she is living right now. However, she has no active plans to kill herself.
She has fatigue. There is fatigue involving the brain and body. It is present every day. She is of lower energy. Her interest and motivation is poor. It is a struggle just to see family and friends. She has to push herself to do things and even making a phone call can be daunting.
She has withdrawn and isolated herself from everyone in her life. She is not the same person. She wants to live a simple, quiet life. She reports that it is a long time since she has genuinely laughed or had joy out of life. Things that should bring her joy do not because she is quite focused on the pain or anxiety.
[172] The plaintiff relies on the following authorities.
[173] In Sebaa v. Ricci, 2015 BCSC 1492, the plaintiff was 33 at the time of the accident. At the time of trial, when she was 38 years old, she continued to suffer a psychological and physical chronic pain disorder. Her prognosis for recovery was guarded, and she was unlikely to return to her previous level of functioning, mental health, employment, and social engagement. The award for non-pecuniary damages was $180,000.
[174] In Kallstrom v. Yip, 2016 BCSC 829, the plaintiff who was 44 years old suffered and would continue to suffer from a constellation of disabling chronic neck and back pain, headaches, and depression. The award for non-pecuniary damages was $180,000.
[175] In Kim v. Lin, 2016 BCSC 2405, the plaintiff was 27 when she was a rear seat passenger in a T-bone collision. She suffered soft tissue injuries to her back and SI joint and developed chronic pain syndrome, somatic symptom disorder, and an adjustment disorder with mixed anxiety and depressed mood. Before the accident she was a young healthy woman who enjoyed an active outdoor lifestyle and social life. After the accident, she had difficulty with all but the simplest of household chores, could not enjoy her children as she did before, was socially isolated and there was a real possibility that her marriage would not survive. The award for non-pecuniary damages was $175,000.
[176] In Pololos v. Cinnamon-Lopez, 2016 BCSC 81, the plaintiff was 41 years old at the time of the accident and 48 at the time of trial. As a result of the accident the plaintiff was living with chronic pain, anxiety, depression and sleep disturbances. He became significantly isolated, his relationship with friends and family deteriorated, and he no longer participated in any pleasurable activities. The award for non-pecuniary damages was $180,000.
[177] In Felix v. Hearne Estate, 2011 BCSC 1236, the plaintiff was 44 years old at the time of the accident in which she sustained multiple injuries but no fractures. At the time of trial, five years later, she continued to suffer chronic neck and back pain, headaches, loss of function in her left wrist, injury to her left shoulder and ankle, tinnitus, disturbed balance, and significant depressive and PTSD symptoms. She lost the ability to be self-reliant or participate in sporting activities as she did before the accident. The award for non-pecuniary damages was $200,000.
[178] The defendants rely on the following authorities.
[179] In Middleton v. Morcke, 2007 BCSC 804, the plaintiff, a young woman, was injured in two accidents, and suffered soft tissue injuries to her neck, back, jaw, and left arm, and headaches. She was diagnosed with chronic myofascial pain, and depression. However, she continued to work successfully on her career, and missed only three days of work after the second accident. Her prognosis was optimistic, although she would continue to experience some degree of pain, and was unlikely to recover to her pre-accident position. The award for non-pecuniary damages was assessed at $60,000 but reduced by 40 percent to $36,000 for her failure to mitigate her damages by failing to follow the recommended treatment for her depression and failing to engage in an exercise regime.
[180] In Guthrie v. Narayan, 2012 BCSC 734, the plaintiff was 23 years old at the time of a significant rear-end collision, and suffered significant pain from soft tissue injuries to the right side of her neck and upper back. She worked at a small credit union, where much of her work required repetitive motions. At the time of trial, three years after the accident, she had chronic pain on the right side of her neck and shoulders, that varied in intensity. She was not likely to improve. She could no longer participate in her numerous athletic activities. The plaintiff sought $75,000 for non-pecuniary damages and was awarded $65,000.
[181] In Borecka v. Wilkins, 2017 BCSC 13, the plaintiff was 21 at the time of the accident. She suffered soft tissue injuries but at the time of trial nearly five years after the accident, had recovered from the soft tissue injuries to her neck and shoulder but was continuing to suffer from chronic pain in her low back and ongoing depression. She was found to have failed to mitigate her damages by failing to follow recommended treatment in which case she would have recovered to her pre-accident state, subject to vulnerabilities for flare ups of pain and further episodes of depression. The award for non-pecuniary damages was $85,000.
[182] In Snidal v. Spires, 2015 BCSC 446, the plaintiff who was 20 at the time of the accident and worked as a lifeguard, was physically and emotionally disabled by the accident for just over three years at the time of trial. However, she continued to deal with daily myofascial pain, and headaches, including migraine headaches. With her limited education and skills, she would likely have pursued jobs requiring physical effort. She was no longer able to work as a lifeguard or at jobs requiring physical effort. She was limited to jobs requiring light-duty physical effort, but was unable to work full time in a sedentary job. She was not career oriented. However, she was no longer able to pursue recreational and social activities as she had. She sought non-pecuniary damages of $100,000, and was awarded non-pecuniary damages of $85,000.
[183] In Mullens v. Toor, 2016 BCSC 1645, the plaintiff was 29 at the time of the accident. She suffered soft tissue injuries, but her main complaints were chronic pain, anxiety, depression, somatic symptom disorder, and PTSD, in partial remission. She was anxious driving in heavier traffic or unfamiliar areas. Four years after the accident, she had not returned to her work at a bank as a junior executive, although the court found that she could have returned to work, and with a graduated return to work program and comprehensive psychiatric treatment, she would probably realize a substantial improvement psychologically, and in her capacity to work. The award for non-pecuniary damages was $140,000, reduced by 50 percent to $70,000 on the basis of failure to mitigate her loss.
[184] Based on the circumstances of this case, including the age of Ms. Pearson at the time of the accident, I find an appropriate award for non-pecuniary damages is $175,000.
[185] Ms. Pearson’s past income loss claim of $35,211 (gross) is relatively modest and is based on her returning to complete her university degree by the end of 2014. She would then have been 25 years old, and earning $50,000 annually, based on the mid-point earnings of $50,219 for 25-30-year-olds with a bachelor degree.
[186] The defendants argue that Ms. Pearson suffered no wage loss and that she has consistently earned more each year since the accident. They argue that it is more likely that Ms. Pearson would not have returned to school, and if she did, she would not likely succeed or graduate. She failed quantitative methods in 2008, had difficulties with accounting and microeconomic theory, and she reported to Dr. Pullyblank that she was not sure about her studies and what she wanted to do as a career.
[187] The defendants’ vocational expert, Diana Cameron, opines that Ms. Pearson would have difficulty completing her degree based on her “pre-MVA achievement pattern.” However, I give little weight to her vocational assessment report and opinion. She based her opinion on the medical reports of Drs. Sovio, Dost, and Koch, that Ms. Pearson’s disability cannot be explained on a physical basis, and the erroneous opinion of Dr. Koch that Ms. Pearson suffered from mental disorders prior to the motor vehicle accident. Ms. Cameron did not have the benefit of the reports of Dr. Bogard or Dr. Pullyblank. She also based her opinion of Ms. Pearson’s academic success in the past and in the future by assessing Ms. Pearson’s success in high school on only core academic courses, ignoring the excellent grades she received in music, art, marketing, and human studies and ignoring her success in university courses, like management, organizational behaviour, people management, and event marketing. She did not have all of the facts relating to the medical issues that Ms. Pearson had which negatively impacted on some of her academic marks. She does however agree that Ms. Pearson demonstrated an attachment to the work force, and has a high degree of emotional intelligence. Those with high degrees of emotional intelligence are more likely to achieve success.
[188] The defendants also argue that the records of Capilano University show that Ms. Pearson was to have returned to school in September 2010, and there are no records of her applying to return in January 2011; and significantly, her boyfriend at the time, Mr. Johnson, did not know of her plans to return to school.
[189] Ms. Pearson may have not had definite plans about her career path, but she was only 21 years old, and as Dr. Pullyblank stated, many young people are not certain about what they want to do. However, she knew that she had a weakness for mathematics (there are few individuals who are strong in every subject), and would likely recognize that with her creativity and strong marks in marketing, she should embrace her creativity and focus her effort at university in subjects relating to public relations, marketing, or similar area. She was however, capable of completing a university degree and it is clear that she wanted to work in a field that involved sports and marketing.
[190] I also do not accept Ms. Cameron’s opinion that Ms. Pearson would have difficulty completing an undergraduate degree, and absent the motor vehicle accident, would work as a barista, or similar low paying job. Ms. Pearson is not the kind of person who was content to be a barista. She had much higher career aspirations. It was apparent during her cross-examination that Ms. Pearson was truly unaware that there was a “start date” of September 2010 on the internal records of Capilano University. She thought her application for re-admission was to just get things moving, and she planned to continue with her education in 2011. The fact that her boyfriend did not know of her plans is of little significance.
[191] Ms. Pearson required seven more semesters to complete a university degree. She was one-third of the way through completing a degree when the accident occurred. I find that she would have obtained a university degree by the end of 2014, worked while she was going to school, and taken time some time off from school to work.
[192] Her average monthly earnings in 2010 before the accident were $1,750, or $21,000 annually. She earned $15,491 in 2008, and $12,426 in 2009.
[193] She was unable to work the last four days in November 2010 and most of December 2010. I accept that her loss of wages for 2010 arising from the accident was $1,750.
[194] While the defendants argue that Ms. Pearson could earn $15,000 annually while attending university, that is based on an average of $15,491 she earned in 2008 and $12,426 she earned in 2009. I think what she earned in 2009 is closer to what she would have earned but for the accident, because she only started university in the fall of 2008. However, it makes little difference because as the defendants argue, Ms. Pearson suffered no past income loss for the years 2011 to 2014. In each of those years, she earned $20,778, $25,113, $26,739, and $27,567 respectively. Because of her attachment to the work force and need to work, Ms. Pearson worked with pain when others would have not worked.
[195] The economist, Darren Benning, states that the 50th decile earnings for 25 to 30 years olds with a bachelor’s degree, excluding law, is $50,219. Ms. Pearson contends that but for the accident, she would have earned a bachelor’s degree and earned $50,000 in 2015 and 2016. Instead, she earned $27,842 and $8,500 respectively in each of those years. Her tax return for 2016 was not available but I accept that she earned $4,606 from Windflower, and $1,637 from Howe Sound, plus tips of about $2,250.
[196] From the date of the accident to and including 2016, Ms. Pearson earned a total of $136,539. Based on her earning $1,750 in December of 2011 (her average monthly wages at the time), approximately $15,000 per year for 2011, 2012 and 2013 while enrolled in school full-time, $25,000 in 2014 while enrolled in fewer credits, and then $50,000 per year in 2015 and 2016 after obtaining a degree, I find she would have earned a total of $171,750 but for the accident. Therefore I find that she is entitled to damages for past income loss of $35,211.
[197] In Rosvold v. Dunlop, 2001 BCCA 1, the Court of Appeal summarized the law in assessing damages for loss of future income earning capacity at paras. 8-11:
[8] The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff's capacity to earn income is an asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.). Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.
[9] Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.
[10] The trial judge's task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.) at para. 121, aff'd [1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:
1. whether the plaintiff has been rendered less capable overall from earning income from all types of employment;
2. whether the plaintiff is less marketable or attractive as an employee to potential employers;
3. whether 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. whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
[11] The task of the court is to assess damages, not to calculate them according to some mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff's earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff's likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.
[198] In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal reviewed the applicable authorities, including Steenblock v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.); Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), and Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.), and reaffirmed the basic principles that a plaintiff must prove that there is a real and substantial possibility of a future event leading to an income loss, and depending on the circumstances of the plaintiff, must prove the income loss either on an earnings approach when the loss is more easily measurable, or such as in the case of a young person whose career path is uncertain, on a capital asset approach.
[199] Madam Justice Garson for the Court of Appeal in Perren stated:
[12] These cases, Steenblok, Brown, and Kwei, illustrate the two (both correct) approaches to the assessment of future loss of earning capacity. One is what was later called by Finch J.A. in Pallos the ‘real possibility’ approach. Such an approach may be appropriate where a demonstrated pecuniary loss is quantifiable in a measurable way; however, even where the loss is assessable in a measurable way (as it was in Steenblok), it remains a loss of capacity that is being compensated. The other approach is more appropriate where the loss, though proven, is not measurable in a pecuniary way. An obvious example of the Brown approach is a young person whose career path is uncertain. In my view, the cases that follow do not alter these basic propositions I have mentioned. Nor do I consider that these cases illustrate an inconsistency in the jurisprudence on the question of proof of future loss of earning capacity.
…
[30] Having reviewed all of these cases, I conclude that none of them are inconsistent with the basic principles articulated in Athey v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. These principles are:
1. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation [Athey at para. 27], and
2. It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made [Andrews at 251].
…
[32] A plaintiff must always prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that there is a real and substantial possibility of a future event leading to an income loss. If the plaintiff discharges that burden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity, either on an earnings approach, as in Steenblok, or a capital asset approach, as in Brown. The former approach will be more useful when the loss is more easily measurable, as it was in Steenblok. The latter approach will be more useful when the loss is not as easily measurable, as in Pallos and Romanchych. A plaintiff may indeed be able to prove that there is a substantial possibility of a future loss of income despite having returned to his or her usual employment. That was the case in both Pallos and Parypa. But, as Donald J.A. said in Steward, an inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss.
[Emphasis in original.]
[200] The task is to assess damages, not to calculate them according to a mathematical formula, although where mathematical aids may be of assistance, the court should start its analysis by considering them. In Jurczak v. Mauro, 2013 BCCA 507, Madam Justice Stromberg-Stein wrote at paras. 36-37:
[36] This process is “an assessment rather than a calculation” and “many different contingencies must be reflected in such an award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18. “Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable”: Parypa v. Wickware, supra, at para. 70.
[37] With that said, if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them. For example, in Henry v. Zenith (1993), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this Court held that a trial judge’s failure to consider an economist’s projections of a plaintiff’s lost future earning capacity contributed to the judge committing an error in principle, which “resulted in a wholly erroneous estimate of the damages”.
[201] It is well known that there are inherent difficulties in assessing awards for hypothetical future events. It is often described as “gazing into a crystal ball” or “an estimate based on prophesies,” and the task is even more difficult when dealing with a young person who have not established a career path: Shapiro v. Dailey, 2012 BCCA 128 at para. 40.
[202] In Johal v. Meyede, 2014 BCCA 509, the issues on appeal were the trial judge’s assessment of loss of future income capacity and cost of future care. The plaintiff was 27 at the time of the accident, had been promoted at various times at the hotel chain where she worked, and aspired to be a hotel manager. The Court of Appeal again considered the difficulties with assessing future events at para. 37:
[37] Thus, it appears the judge used the capital asset analysis as a check on the validity of the economic approach. Although this is not a typical analysis in arriving at the assessment of a future income loss claim, I cannot say it was in error. In my view, it is important to keep in focus the difficulties associated with the assessment of claims founded on future events. As this Court, in Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144, explained at para. 33:
[33] In valuing the award, the judge must consider the likely duration of the plaintiff’s prospective working life and must account for negative and positive contingencies which are unique to each case. The final award must be fair and reasonable in all the circumstances. This assessment requires a very fact-intensive, case-specific inquiry. I am persuaded by what Macfarlane J.A. said in Lawin v. Jones, 98 B.C.L.R. (2d) 126, [1994] B.C.J. No. 2107 at para. 35, about the lack of utility in comparisons to other cases:
[G]iven the fact that we cannot foresee the future, it is impossible in a case like this to find any comfort in resort to other cases where the future may be more predictable. Judges will differ, perhaps widely, in making assessments in cases which have been said to depend on what may be seen in a crystal ball. What is certain is that a trial judge who hears and observes the witnesses is in a much better position than an appellate judge to come to a conclusion as to what is fair and reasonable in the circumstances …
[203] Ms. Pearson was 21 years old when she was injured. She was pursuing a university degree, and had taken time off from her studies to earn an income so that she could continue with her studies.
[204] I find that she would have obtained a bachelor’s degree, although she may have changed the direction of the course of her studies to focus on her strengths rather than her relative weaknesses in mathematics. Given her personality, her work history, particularly as relayed by Ms. Kingston, Ms. Pearson was exceptional and highly motivated. Ms. Cameron agreed that Ms. Kingston’s description of Ms. Pearson in the workplace is a description of someone with a high degree of emotional intelligence. The components of emotional intelligence include self-awareness, self-regulation, motivation or a passion for work that goes beyond status or money, and the necessary social skills to manage relationships and build networks.
[205] The preponderance of medical evidence is that with the recommended treatment, including a multi-disciplinary rehabilitation intervention, Ms. Pearson can hope to maintain her present level of functioning, better manage her pain, and not lose any ground.
[206] The most she has earned annually since the accident is approximately $25,000 annually, but she has demonstrated that working that much is not sustainable for her. She pushes herself to work despite increasing her pain, anxiety, and other symptoms beyond what the average person would do because of her work ethic. The last year before trial, she earned just over $8,000. Because of her injuries from the collision, she needs more time to work on maintaining her functional capacity and mental health than the average person. As a result of the accident, I find her future earnings will be in the range of $10,000 to $15,000.
[207] Ms. Pearson was only 21 at the time of the accident. However, she possessed the attributes to be exceptional at whatever she pursued. The average full-time full-year earnings for a BC female with a bachelor’s degree, excluding law, for all ages, in 2017 dollars, is $66,927, based on the 2011 National Household Survey. The earnings of those in the 70th, 80th and 90th percentile, is $81,274, $90,360, and $104,096, respectively.
[208] The actuarial cumulative multiplier from the date of trial to age 65 is $28,001, and includes allowances for premature death. The economic cumulative multiplier from the date of trial to age 65 is $19,945. The economic multiplier includes allowances for the negative labour market contingencies, including non-participation in the work force, unemployment, part-time work, and part-year work. The labour market contingencies result in a reduction of lifetime earnings by about one-third.
[209] Mr. Benning testified that those who do not have a bachelor’s degree have lower participation in the work force and higher unemployment compared to those who do have a bachelor’s degree.
[210] I find that using the economic multiplier includes negative contingencies that do not apply to Ms. Pearson. The actuarial multiplier is more appropriate, but I recognize that if the accident had not occurred, Ms. Pearson may have taken some time – but not much time – to have a family. I doubt that she would have become a homemaker given her strong attachment to the work force, or become economically dependent on her partner or spouse.
[211] Assuming that Ms. Pearson earned an average of $15,000 over her expected lifetime, and based on the economic multiplier, her lifetime with injury earnings is $299,175. Had the accident not occurred her earnings would have ranged from approximately $1,036,000 (economic multiplier) based on the average earnings, to approximately $1,800,000.
[212] However, an assessment of damages is just that and not based on a mathematical calculation. An assessment of loss of past and future earning capacity involves a consideration of hypothetical events. A future or hypothetical possibility will be taken into consideration if there is a real and substantial possibility and not mere speculation. If the plaintiff establishes a real and substantial possibility, then the court must determine the measure of damages by assessing the likelihood of the event. The loss may be quantified either on an earnings approach or on a capital asset approach, based on the facts of the case: Grewal v. Naumann, 2017 BCCA 158 at para. 48.
[213] I conclude that Ms. Pearson has established that there is a real and substantial possibility that she would earn more than the average female with a bachelor’s degree, she would have worked in sports marketing or a similar field, and she would have worked full time, except for limited time off for parental leave.
[214] I find that an appropriate assessment for loss of earning capacity on a capital asset approach is $1,250,000.
[215] Ms. Pearson seeks an award of cost of future care of $401,868.50, which includes the cost of the medical treatment that the medical experts recommend based on their assessments of her. The purpose of a cost of future care award is to sustain or improve the physical and mental health of the injured person based on what the medical evidence is reasonably necessary: Gignac v. Rozylo, 2012 BCCA 351.
[216] There is general agreement among the medical witnesses that Ms. Pearson needs treatment, although the names of the treatment may differ slightly. However, a multi-disciplinary intervention, physical rehabilitation and pain management program, or multidisciplinary chronic pain management program is necessary. This includes physiotherapy, occupational therapy to establish an initial rehabilitation plan, physical therapy, active rehabilitation with a kinesiologist, psychological counselling or therapy, and cognitive behavioural therapy or psychotherapy. She also requires prescription medication for anti-depressants, Botox treatments, and intramuscular stimulation (IMS) or myofascial trigger point injections, and after Ms. Pearson has plateaued following her rehabilitation plan, a vocational or career consultant, and life-long access to a gym.
[217] Ms. Pearson testified that she is willing to travel to Vancouver for the recommended medical treatment that she needs (assuming of course, that the treatment is not available in Squamish) and as set out in Ms. Craig’s cost of care report. Despite her anxiety with being on the Sea-To-Sky Highway, I believe that she will obtain the treatment she requires, despite the problems she has had in the past.
[218] Ms. Pearson has found IMS helpful for reducing pain, and Botox helpful for her headaches.
[219] Ms. Craig prepared a cost of care report based on the recommendations made by the medical experts, including the recommendations in her functional capacity evaluation. The plaintiff points out in argument that no aspect of Ms. Craig’s cost of future care report was challenged. The plaintiff has used Mr. Benning’s cost of care multiplier, and in advancing her claim:
· used the mid-point where Ms. Craig has indicated a range of costs or frequencies;
· added any applicable GST and/or PST;
· claimed household and handyman services to age 80 based on the assumption that absent the accident, Ms. Pearson would have likely needed similar services in any event;
· claimed only 50 percent of the medically recommended medications Amitryline and Nortiptyline on the basis that she is not currently taking pain medication, and that over her lifetime, she will take these pain medications or other medications with varying frequencies;
· reduced Ms. Craig’s average annualized cost of Botox, by using Ms. Pearson’s actual costs incurred for Botox; and
· claimed for the cost of Cymbalta on the basis that she has used the anti-depressant medication in the past, although she is presently using Sertraline, another anti-depressant.
[220] Common sense tells me that the medication that a patient is recommended from time to time will change over time, depending on the circumstances of the patient, and medical science and pharmacology. It is difficult to forecast into the future what drugs may be available, their cost, or a patient’s tolerance for any drug.
[221] Ms. Pearson’s cost of future care claim is as follows:
|
Item |
Cost |
Frequency |
Multiplier Value |
Present Value |
|
|
PROJECTED EVALUATIONS |
|||||
|
Ergonomic Assessment |
$782 |
Year 1 and Year 15 |
1,734 |
$1,356 |
|
|
PROJECTED THERAPEUTIC MODALITIES |
|||||
|
Occupational Therapy |
$2052 |
Year 1 |
990 |
$2,031 |
|
|
Kinesiologist |
$1,164 |
Annual to year 3 |
2,911 |
$3,388 |
|
|
Psychologist - Current Treatment |
$9,000 |
Year 1 |
990 |
$8,910 |
|
|
Psychologist - Year Two |
$3,975 |
Year 2 |
970 |
$3,857 |
|
|
Psychologist - Year Three |
$2,850 |
Year 3 |
951 |
$2,710 |
|
|
Psychologist - Additional Three Times |
$2,588 |
Year 10, Year 20, Year 30 |
2,033 |
$5,259 |
|
|
Physiotherapy |
$1,014 |
Year 1 |
990 |
$1,004 |
|
|
IMS or Massage Therapy |
$1,860 |
Annual |
33,607 |
$62,509 |
|
|
Inter-Disciplinary Pain Management Program |
$10,834 |
Year 1 |
990 |
$10,725 |
|
|
MEDICATIONS |
|||||
|
Amitryline 10MG or Nortiptyline 70-100MG |
$502/2 = $251 |
Annual |
33,607 |
$8,433.50 |
|
|
Lyrica or gabapentin |
$345/2 = $172.50 |
Annual |
33,607 |
$5,796 |
|
|
Botox |
$3724 |
Annual |
33,607 |
$125,152 |
|
|
Cymbalta 60 to 90MG |
$2,186 |
Annual |
33,607 |
$73,477 |
|
|
ERGONOMIC EQUIPMENT |
|||||
|
Ergonomic Adjustable office chair |
$344 |
Year 1 |
990 |
$341 |
|
|
Headset |
$111 |
Year 1 |
990 |
$110 |
|
|
Tilt board |
$4168 |
Year 1 |
990 |
$166 |
|
|
HOUSEHOLD CHORES |
|||||
|
Regular Household cleaning |
$756 |
Annual to Age 80 |
31,183 |
$23,575 |
|
|
Heavier Seasonal Household Cleaning |
$504 |
Annual to Age 80 |
31,183 |
$15,716 |
|
|
Handyman services-regular |
$984 |
Annual to Age 80 |
31,183 |
$30,696 |
|
|
HEALTH AND STRENGTH MAINTENANCE |
|||||
|
Gym and pool membership - adult |
$420 |
Annual to Age 65 |
25,835 |
$10,851 |
|
|
Gym and pool membership - senior |
$315 |
Annual from Age 65 |
7,772 |
$2,448 |
|
|
VOCATIONAL |
|||||
|
Vocational Assessment/Career Counselling |
$3,392 |
Year 1 |
990 |
$3,358 |
|
|
TOTAL |
$401,868.50 |
||||
[222] Ms. Pearson is entitled to damages of $401,868.50 for cost of future care.
[223] Special damages are agreed at $9,482.03.
[224] In summary, Ms. Pearson is entitled to judgment against the defendants in the following amounts:
|
1. |
Non-pecuniary damages |
$175,000.00 |
|
2. |
Past income loss |
$35,211.00 |
|
3. |
Loss of future income earning capacity |
$1,250,000.00 |
|
4. |
Cost of future care |
$401,868.50 |
|
5. |
Special damages |
$9,482.03 |
|
|
Total |
$1,871,561.53 |
[225] Ms. Pearson is also entitled to her costs.
“Loo J.”
_______________________________
The Honourable Madam Justice Loo