2005 BCSC 102 Fox v. Danis

Before: The Honourable Madam Justice Sinclair Prowse

Reasons for Judgment

Counsel for the Plaintiff	A.A. Vecchio R. Marcoux
Counsel for the Defendant	T.E.G. Murphy S.K. Sheena
Date and Place of Trial:	April 19-23, 27-30, 2004
	Vancouver, B.C.

(I) NATURE OF THE PROCEEDINGS AND ISSUES RAISED

[1] In this action the Plaintiff seeks damages arising from the injuries that she suffered in a motor vehicle accident caused by the negligence of the Defendant. There is no issue with respect to liability.

[2] This accident occurred over six years ago on March 28, 1998 when the Plaintiff was twenty-eight years old. She is now thirty-four years old.

[3] On the day of the accident, the Plaintiff had been out doing various errands. She was on her way home and had stopped her vehicle at an intersection waiting for the traffic light to change when the Defendant negligently rear-ended the car immediately behind her, propelling that vehicle into the rear end of her vehicle.

[4] In this trial, the Plaintiff contends that, as a result of this accident, she suffered permanent injuries to her neck and lower back, including an ongoing injury to a nerve at the L5-S1 level of her spine and that, as a result of these injuries, she is in chronic pain and has lost her capacity to continue to work full time.

[5] The Defendant, on the other hand, contends that the Plaintiff did not suffer an ongoing nerve injury; that to the extent that she is in chronic pain that pain is the result of de-conditioning rather than a permanent injury; and that she has not lost her capacity to work full time.

(II) THE NATURE, EXTENT, AND DURATION OF THE PLAINTIFF'S INJURIES

[6] For reasons which follow, I am satisfied that, as a result of this accident, the Plaintiff suffered permanent injuries to her neck and lumbar spine, including ongoing nerve damage in her lower back.

[7] In his Report dated February 16, 2004 and in his testimony, Dr. Gelfer (the Plaintiff's family doctor) opined that as a result of this accident, the Plaintiff suffered "moderately severe soft tissue injuries to the cervical and lumbar spine." He further opined that "[t]hese injuries are now permanent and unlikely to improve."

[8] The evidence supports these opinions.

[9] As far as her neck injury is concerned, there is no dispute that she had suffered a soft tissue injury to this area of her body; that although it had improved somewhat since the accident, she still suffers periodic pain in her neck and shoulder; and that it is unlikely that this injury will improve any further.

[10] In addition to these aspects of this injury, I accept the opinion of Dr. Stewart (the specialist in physical and rehabilitative medicine called by the Plaintiff) that the increased frequency of the Plaintiff's migraine headaches have a muscle tension component and that this muscle tension is as a result of the Plaintiff's neck injury. Therefore, although the Plaintiff's migraine headaches are not the result of the accident, their increased frequency is attributable in part, if not in whole, to the accident.

[11] With respect to the Plaintiff's lower back, there is really no dispute that she suffered a soft tissue injury to this area of her body. As Dr. Turnbull (the neurologist called by the Defendant) explained in his testimony, the pain that the Plaintiff suffers with such movements as bending forward from the waist (even just to talk to someone across the table); sneezing; coughing; and/or sitting or standing for any length of time, are all indicative of a soft tissue injury to her lower back.

[12] The issue with respect to her lower back soft tissue injury pertains to its severity and duration.

[13] As was touched on earlier, the Defendant contends that this injury is mild and that the Plaintiff experiences few, if any, limitations because of it. In support of this contention, the Defendant relies on a videotape taken of the Plaintiff doing various tasks and errands after the accident.

[14] In my view, this videotape does not support the Defendant's contention. Rather, the videotape supports the contention of the Plaintiff that the pain caused by her lower back soft tissue injury places significant limitations on her movements.

[15] Specifically, the videotape shows the Plaintiff arriving home carrying packages where she is met by a neighbour who stops to talk with her for a few minutes.

[16] Shortly after the commencement of this conversation (in keeping with her evidence that, because of pain in her lower back she is unable to stand for any length of time), she begins to shift her weight from one foot to the other and to change the overall position of her body. This pattern of shifting weight and changing position continues every few minutes throughout the conversation.

[17] In addition (also consistent with her evidence that she finds it difficult to carry items for any length of time), shortly after the beginning of the conversation with her neighbour, the Plaintiff begins to shift around the packages that she is carrying.

[18] This videotape also shows the Plaintiff performing such household tasks as grocery shopping and watering outdoor plants. Consistent with her evidence that because of her injuries she finds it difficult to bend and to lift items, her movements are careful and deliberate. They are not fluid. Any bending (and she seemed to avoid that movement) is done in a stilted, cautious, and awkward manner.

[19] To summarize, I am satisfied that the manner in which the Plaintiff moves her body on the Defendant's videotape is consistent with her evidence regarding the limitations that she experiences because of pain. I am also satisfied that the evidence proves that these types of limitations are consistent with a moderately severe, rather than a mild, soft tissue injury.

[20] Moreover, I accept the evidence of her treating physicians that this injury is not the result of de-conditioning and that although core strengthening exercises may help the Plaintiff to better manage this injury, exercise will not resolve it. Rather this injury is permanent.

[21] In addition, though there is no dispute that the Plaintiff suffered a prolapsed disc at level L5-S1 of her spine as a result of this accident (that is, that her disc was compressing the nerve, resulting in pain running into her left buttock; down her left leg; and into her left foot), there is a dispute as to whether that injury was resolved as a result of the surgery that she underwent in December 1998.

[22] The evidence proved that although the surgery did reduce the pain the Plaintiff was suffering, it did not alleviate it completely. Rather, she continues to experience, on a daily basis, a dull ache that runs through her left buttock down her left leg into her left foot. She also periodically experiences some numbness and tingling. As Dr. Turnbull explained in his testimony, this type of pain is consistent with nerve damage or interference, not with a soft tissue injury.

[23] Further, Dr. Turnbull testified that although it is not uncommon for a patient to experience this type of pain for two to three months after the surgery as the swollen nerve heals, the continuation of this pain beyond those first few months is indicative of continuing nerve interference, probably caused by the formation of scar tissue following surgery which is compressing the nerve to some degree.

[24] As Dr. Turnbull further explained in his evidence, approximately fifteen percent of the patients that undergo this type of spinal surgery suffer some ongoing nerve damage.

[25] Given this testimony and the nature and continuation of the Plaintiff’s symptoms, I am satisfied that she falls within this fifteen percent category and that, in addition to her lower back soft tissue injury, she has also suffered an ongoing injury to her nerve at the L5-S1 level of her spine.

[26] I am satisfied that the evidence proves that the Plaintiff falls within this fifteen percent category and that she continues to suffer some continuing compression of this nerve.

[27] There is no dispute on the evidence that this type of ongoing nerve injury is permanent.

[28] There was evidence tendered that the Plaintiff is at risk, because of the chronic pain (and, in particular, because of the fatigue and loss of energy resulting from this pain) of experiencing depression in the future.

[29] In the spring of 2000, the Plaintiff did suffer a depression. However, the evidence showed that it arose primarily because of marital problems that she and her husband were having at that time.

[30] The fact that her previous depression may not have been caused by the chronic pain arising from the injuries suffered in this accident does not negate the risk of a future depression being caused by this pain.

[31] To the contrary, given that the depression arises from the fatigue, loss of energy, and limitations resulting from chronic pain, and given that the Plaintiff does suffer from chronic pain from her injuries, I am satisfied that there is a realistic likelihood that she will suffer some degree of depression in the future.

[32] To summarize, as a result of the March 1998 accident the Plaintiff suffered a moderately severe soft tissue injury to her cervical and lumbar spine. In addition, she suffered a prolapsed disc in her lumbar spine and continues to suffer from a compression of one of her nerves at the L5-S1 level. These injuries cause the Plaintiff periodic pain in her neck and right shoulder and chronic pain in her lumbar spine, left buttock, and left leg. All of these injuries are permanent.

[33] Furthermore, because of her chronic pain, she is at risk in the future of experiencing some degree of depression. Moreover, the muscle tension arising from her neck injury is a contributing factor in the increased frequency of her migraine headaches.

(III) DAMAGES

[34] The Defendant contends that the Plaintiff failed to mitigate her damages and that her damages should be reduced accordingly.

[35] There is no dispute that every plaintiff has a duty to mitigate his/her damages, and that the burden of proving a failure to fulfil that duty rests with the defendant, the standard of proof being the balance of probabilities: Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[36] In this case, the Defendant submits that the Plaintiff failed to mitigate her loss in that she failed to exercise as recommended by her family doctor.

[37] To succeed in proving these submissions, the Defendants must establish, on the balance of probabilities, that the Plaintiff failed to undertake this recommended treatment; that by following that recommended treatment she could have overcome or could in the future overcome the problems; and that her refusal to take that treatment was unreasonable: Janiak v. Ippolito, supra and Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.).

[38] The Defendant has failed to prove his claim. The evidence proves that the Plaintiff did follow her doctor’s advice and did commence the various recommended exercise programs. She stopped participating in these programs after her family doctor advised her to do so because the exercises were hurting, rather than helping, her.

[39] Given this evidence, this claim is dismissed.

(A) Special Damages

[40] The Plaintiff seeks an award of $3,601.80 in special damages, this amount being the total of $461.80 for miscellaneous expenses and $3,140 for an in-trust claim for the services that the Plaintiff's husband rendered when she was recovering from her back surgery.

[41] The Defendant does not dispute the Plaintiff's claim of $461.80 for miscellaneous expenses. However, he oppose the in-trust claim on the basis that these expenses were no more than the services that a loving spouse is expected to provide.

[42] To succeed with this in-trust claim, the Plaintiff must prove that the services were rendered; that the services were made necessary by the injury; and that the amount claimed is reasonable.

[43] There was no dispute that the Plaintiff's husband did provide the services claimed and that the amount claimed was reasonable. If I am mistaken with respect to the Defendant's position on the proof of these elements, I am satisfied that the evidence proved them.

[44] That is, the evidence showed that for the two weeks following her release from hospital after her disc surgery, the Plaintiff was completely incapacitated. She was not able to look after any of her basic needs herself. For example, she needed help to get to the bathroom; to look after her personal hygiene; to feed herself, etc. In addition, she needed assistance to tend to such medical needs as cleaning her incision and to ensure that she took her medications.

[45] Her husband took two weeks off work and provided the full-time care that she needed. Following those initial two weeks, for the next two weeks he provided approximately four hours a day assisting her with the tasks that she was still unable to perform herself.

[46] As far as the amount claimed is concerned, the Plaintiff is claiming $2,300 for the two weeks that her husband took off work and $840 for the two weeks following that. The $2,300 is the amount that her husband lost at work and the $840 represents fourteen four hour shifts at $15 per hour. The $2,300 works out to be about $15 an hour for eleven hour shifts for two weeks. $15 an hour is a reasonable amount for the services provided. Given that the Plaintiff's husband provided at the least the number of hours claimed, the amount sought is reasonable.

[47] With respect to whether these services were necessitated by an injury that she suffered in the accident, the evidence shows that they were. That is, all of this assistance was necessitated by the fact that the Plaintiff had a prolapsed disc and that she required surgery to relieve the pain. The prolapsed disc, in turn, was caused by the accident.

[48] As was just touched upon, the Defendant opposes this claim on the basis that the services provided by the Plaintiff's husband were services that one would expect a loving husband to provide. I disagree.

[49] Rather, the evidence proves that these services were over and above the services that he usually provided, or that any spouse could reasonably be expected to provide. Although the Plaintiff and her husband customarily shared the household chores, the services that he provided during the four weeks of her convalesce went far beyond those chores. His assistance during this period consisted of helping her tend to her personal needs as well as assuming her share of the household chores.

[50] The services that he provided during this period were services that the Plaintiff would have had to arrange to receive from a third party had her husband not provided them to her.

[51] Given these findings, I am satisfied that the services provided went beyond those services expected from a loving spouse. Furthermore, as is set out above, I am satisfied that the Plaintiff has proven all of the elements of this in-trust claim.

[52] The Plaintiff is awarded $3,140 in-trust for the services provided by her husband during the four week period that she was recovering from her back operation.

[53] The total amount awarded in special damages is $3,601.80 plus interest.

(B) Past Loss of Earning Capacity

[54] The parties are agreed, and the evidence supports that the Plaintiff is entitled to recover $4,740 for her past loss of earning capacity. An award is made in that amount, plus interest.

(C) Future Cost of Care

[55] The Plaintiff sought an award of $175,000 for the future cost of her care. In particular, the Plaintiff sought compensation to cover the following proposed future expenses –the installation of a particular type of shower unit; the installation of a hot tub; modifications to the lower kitchen cupboards; an assessment by, and an ongoing membership to, the Diane Miller Pilates Studio; medication; and ongoing cleaning and cooking home support.

[56] The Defendant opposes the awarding of these proposed expenses on the grounds that the evidence fell short of proving that the installation of the shower and hot tub; the modification of the kitchen cupboards; the medication; and the home support services were reasonably necessary to promote the Plaintiff’s physical and mental health.

[57] Moreover, he argues that the Diane Miller Pilates Studio is too costly and that a membership to an equally appropriate facility could be purchased for less. Furthermore, he submits that the evidence does not support the Plaintiff’s contention that this membership is needed on an ongoing basis.

[58] As far as the legal principles governing this award are concerned, there is no dispute that the Plaintiff is entitled to be compensated for all expenditures that are reasonably necessary, on the medical evidence, to promote her mental and physical health in the future: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), additional Reasons (1985), 63 B.C.L.R. 122 (S.C.), aff’d (1988), 49 B.C.L.R. (2d) 99 (C.A.). Moreover, the award must be moderate and fair to both parties.

[59] The issue is whether each of the proposed expenditures meets these standards.

[60] As far as the installation of the shower unit and the hot tub and the modification of the lower kitchen cupboards, the evidence fell short of proving that these items and changes were reasonably necessary to promote the Plaintiff's mental or physical health.

[61] To the contrary, the evidence went no further than suggesting that these items "may" bring the Plaintiff some temporary relief. This does not meet the "reasonably necessary" standard, nor does it meet the "moderate and fair" standard.

[62] As far as the proposed expense for medication is concerned, it included funds not only to pay for the over-the-counter medication that the Plaintiff is presently taking for chronic lumbar and leg pain (namely, Advil and Anacin), but also to pay for medication for the alleviation of osteoarthritis and degenerative changes in the future.

[63] Though the evidence did show that the expenditure for Advil and Anacin were reasonably necessary given the permanency of her chronic pain, the evidence did not go so far as to show that the Plaintiff was likely to require the medication for osteoarthritis and/or other degenerative changes. Rather, Dr. Stewart opined in her Report that although the Plaintiff may experience some degenerative changes, those changes will probably not cause any symptoms.

[64] As far as the amount of this award is concerned, Ms. Murrell (the rehabilitation consultant tendered by the Plaintiff) opined that the award should provide $500 a year to cover these expenses. (The Economic Report of Mr. Taunton the expert tendered by the Plaintiff showed that the present value of an award in that yearly amount is $11,461.)

[65] The Plaintiff presently spends much less than this per month on medication. As the special damage award shows, her total expenditure for all of her treatments in the last six years is $461.

[66] Given this fact, and having regard to the various contingencies that must be considered in making this future award, I am satisfied that an award of $2,000 is appropriate to meet this future expense.

[67] With respect to the assessment by, and the ongoing membership to, the Diane Miller Pilates Studio, the evidence shows that core strengthening exercises would likely benefit the Plaintiff physically and may reduce the pain that she experiences from her soft tissue lumbar injury.

[68] This particular studio has the expertise to assess the Plaintiff given her injuries and to determine the strengthening program that is most suited to her situation. Moreover, this studio has the personnel to assist the Plaintiff to implement this program once it is devised.

[69] Although there are other fitness places that are not as costly, I am not satisfied that the evidence proves that they likely have the expertise required to assess and to assist the Plaintiff with her specific physical problems.

[70] With respect to the Plaintiff's claim that the membership be ongoing, in my view the evidence supports this claim. That is, the evidence shows that as the Plaintiff's injuries are permanent, she will be required to pursue an ongoing exercise regime to maintain the strength in her back.

[71] However, once a suitable exercise regime is in place and established, the evidence did not go so far as to show that it is reasonably necessary for the Plaintiff to continue at the Diane Miller Pilates Studio. Rather, participation in any similar facility will be appropriate. (I mention this because the Miller Studio is not particularly convenient to the Plaintiff's residence. Once the program is in place and established, the Plaintiff can use a more convenient facility to practice it.)

[72] Given these findings, I am satisfied that the proposed expenditure for an appropriate ongoing exercise program is reasonably necessary to promote the Plaintiff's mental and physical health.

[73] With respect to the quantum of this award, in addition to the various contingencies that I must consider, I am also mindful of the fact that the Plaintiff would likely have participated in a fitness program, in any event, even if the accident had not happened. That is, the Plaintiff had been participating in such programs for years before the accident occurred. Prior to her marriage she had been going three to four times a week. She was going less frequently just before the accident – namely, twice to three times a week. Although she may well have reduced this even further as her employment responsibilities increased, given her commitment to good health it is unlikely that she would have abandoned it altogether.

[74] Given this situation, I am satisfied that the Plaintiff would likely have participated in a fitness program even if the accident had not happened, but that it is unlikely that she would have participated to the extent that she will now be doing given her injuries.

[75] The amount sought by the Plaintiff for the Miller exercise regime as set out in the Report of Mr. Taunton is $64,355, this being the total of the $80 assessment fee; the $3,238 fee for the first year membership; and the $61,037 required to fund the ongoing annual memberships.

[76] Having regard to the fact that the Plaintiff would probably have participated in a fitness program in any event regardless of the accident, and to the various other contingencies that I must consider, I have concluded that the Plaintiff should be awarded forty percent of the amount sought – namely, $25,742.

[77] With respect to the proposed expenditure for home cleaning support, the evidence proved that prior to the accident the Plaintiff and her husband shared these tasks equally. Since the accident the Plaintiff's husband has had to assume ninety-five percent of the responsibility for these tasks because the Plaintiff is physically unable to do them. For example, the bending and the repetitive movements required to perform most household tasks aggravate the Plaintiff's lumbar injuries.

[78] Given this situation, as Dr. Stewart set out in her evidence, the Plaintiff does need (and will continue in the future to need) some assistance with household tasks. This assistance is reasonably necessary to promote her physical health.

[79] As far the proposed expenditure for cooking support is concerned, the evidence established that because of her chronic pain and her consequent fatigue and loss of energy, the Plaintiff no longer has the capacity to perform this task. Presently, the Plaintiff is using all of her energy reserves to do her job at work.

[80] As is set out in the following section of this Judgment, I am satisfied that the Plaintiff's injuries constitute a loss or impairment of her capacity to earn income. In my view, it is likely that the Plaintiff, because of her injuries, will cease to work full-time, but rather will work part-time. A consequence of this change in her circumstance is that she may have more energy to resume some cooking, a task that she enjoys. It is unlikely however that she will ever have the capacity to wholly resume this task.

[81] Given Dr. Lu's evidence, (Dr. Lu was the psychiatrist tendered by the Plaintiff) that the limitations arising from her chronic injuries, and in particular arising from her consequent fatigue and low energy level may trigger a depressive episode, I am satisfied that some degree of cooking assistance is need to promote the Plaintiff's mental health.

[82] In determining the appropriate amount to be awarded, I am mindful of the various contingencies that I must consider as well as the fact that the Plaintiff may have retained home support services assistance to some degree even if the accident had not occurred as her employment responsibilities became more onerous and time consuming.

[83] The amount set out in Mr. Taunton's Report to meet this proposed expense is $147,008, being $91,005 for home cleaning support (the present value of $4,173 per year until age 80) and $56,003 for cooking support (the present value of $2,568 per year until age 80).

[84] Having considered all of the various contingencies that I must consider, including the fact that the Plaintiff may likely have engaged some of these services to some degree in any event as her employment responsibilities increased, I have concluded that the Plaintiff should be awarded fifty percent of the amount sought – namely, $73,504.

[85] In summary, the Plaintiff is awarded $101,246 for the costs of her future care, this award being $2,000 for medication; $25,742 for an ongoing back strengthening exercise program; and $73,504 for home cleaning and cooking support.

(D) Future Loss of Earning Capacity

[86] In this case, the Plaintiff has claimed that, because of her injuries, she has suffered a significant loss or impairment of her earning capacity.

[87] The Defendant's position, on the other hand, is that if the Plaintiff did suffer a loss of capacity (and the Defendant contended that she did not) that loss is minor.

[88] In part, the Defendant’s submission is based on the assumption that the Plaintiff did not suffer an ongoing nerve injury to her lumbar spine. (Of course, as is set out earlier in these Reasons, I have found that she did suffer such an ongoing injury.)

[89] However, the Defendant also relies on the evidence of the Plaintiff's employment record since the accident to support his argument that she has not suffered a loss of capacity, or if she did, that it is minor.

[90] Specifically, the Defendant relies on the evidence that the Plaintiff has not missed any time at work because of her injuries save and except for the time she was off for her disc surgery; that she has received promotions since the accident; and that she has handled additional pressure and responsibilities since the accident with exceptional skill. (Since graduating from high school, the Plaintiff has worked full time for various financial institutions. At the time of the accident and presently, the Plaintiff works at a credit union. In the last few years, that credit union merged with another credit union. The Plaintiff played a vital role in the administration and management of that transition.)

[91] As far as the principles governing this type of claim are concerned, as is set out in Anderson (Committee of) v. James, (1992), 63 B.C.L.R. (2d) 176 (C.A.), quoting with approval from Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.), this type of claim raises two issues - namely,

(1) Has the plaintiff’s earning capacity been impaired to any degree by his injuries?

(2) If so, what amount (in the light of the injury) should be awarded for that impairment?

[92] To determine the first issue (that is, whether the Plaintiff has suffered an impairment of her earning capacity), I must consider such factors as whether, as a result of the Defendants' negligence, the Plaintiff has been rendered less capable overall from earning income from all types of employment; is less marketable or attractive as an employee to potential employers; has lost the ability to take advantage of all job opportunities which might otherwise have been open to her had she not been injured; and is less valuable to herself as a person capable of earning income in a competitive labour market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)

[93] Upon applying these factors to the evidence, I am satisfied that the Plaintiff suffered a significant loss or impairment of her capacity to earn income.

[94] As has been already set out in these Reasons, the Plaintiff suffers periodic pain in her neck and right shoulder. In addition, she suffers chronic pain in her lumbar spine, left buttock, and left leg. This lumbar, buttock and leg pain increases as the day progresses.

[95] Moreover, the pain that she suffers from these injuries interferes with her ability to sleep. Since the accident, she has not been able to sleep longer than six hours a night and that sleep is interrupted because she is awakened with pain. (Prior to the accident, the Plaintiff slept on average eight to nine hours a night and longer on the weekends.)

[96] As the evidence showed, the cumulative effect of these circumstances is that the Plaintiff is chronically tired and becomes noticeably exhausted as the day and week goes on.

[97] In her evidence Dr. Stewart opined that, because of her injuries, the Plaintiff had lost the capacity to work full time. She does not, and will not, in the future have the energy or the stamina to sustain full time employment.

[98] The fact that the Plaintiff has worked full time since the accident is not inconsistent with Dr. Stewart's opinion. To the contrary, the evidence supports it. The Plaintiff uses all of her energy to work. She has nothing left at the end of the day to put towards any other activity. The fact that the Plaintiff is noticeably exhausted supports Dr. Stewart's conclusion that if she does not reduce her work load, she will soon burn out and not be able to work at all.

[99] It is on the basis of all of this evidence that I have concluded that because of her injuries the Plaintiff has sustained a significant loss in her capacity to earn income.

[100] In reaching this conclusion, I am mindful of the fact that the Plaintiff suffers from migraines; that these migraines contribute to some degree to her exhaustion; and that these migraines are only in part attributable to the accident.

[101] However, although the increased frequency in her migraine headaches contribute further to her loss of earning capacity, her neck and low back injuries constitute a significant loss or impairment to this capital asset (that is, her capacity to earn income).

[102] As far as quantifying this loss is concerned, it is the loss of the capital asset of the capacity to earn income and not the lost earnings that is to be valued and compensated: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158 (C.A.). Specifically, it is the impact of the impairment on the Plaintiff's capacity to earn income, given her skills, education, and abilities, that is to be compensated.

[103] It is recognized that this type of award cannot be calculated in accordance with a mathematical formula. Therefore, the task of the Court is to assess the damages rather than apply such a formula: Rosvold v. Dunlop, supra. In Rosvold, the Court held that one method of making this assessment was to compare the likely future income of the Plaintiff if the accident had not occurred with the likely future income of the Plaintiff now that the accident has occurred.

[104] To say the least, the evidence showed that the Plaintiff was a very good employee. Given her administrative and managerial abilities, she likely would have risen to the managerial level of the financial institution for which she works. That is, she would have become a manager.

[105] I accept that because of her injuries it is unlikely that she will rise to this level. As was set out earlier, the Plaintiff no longer has the capacity to maintain full-time employment, let alone take on the additional community activities that are an essential part of the managerial responsibilities at her place of employment.

[106] Unfortunately, as the evidence showed, there are no part-time positions at the Plaintiff's present level of employment, nor are there any senior part-time positions. To work part-time the Plaintiff will have to take a demotion – namely to the position of part-time personal accounts associate.

[107] Given all of these circumstances, I am satisfied that the likely future income of the Plaintiff will be that of a part-time personal account associate.

[108] Using as a guideline the method suggested in Rosvold, without the accident, as a manager the Plaintiff was likely to earn $1,935,987 (being $1,639,067 in earnings and $296,927 in pension benefits). Now with the injuries the Plaintiff is likely to earn, as a part-time personal account associate, $763,740 (being $659,998 in earnings and $103,742 in pension benefits). The difference between these two incomes is $1,172 247.

[109] The figures for the likely incomes are drawn from the Report of Mr. Taunton. They include a modest adjustment for such contingencies as unemployment and premature death. They do not include any type of adjustment for various other contingencies such as permanent lay-offs, strikes, voluntary early retirement etc. Also, given the high regard that the Plaintiff's employer has for her, another contingency to be considered is the possibility that her employer will devise some alternative more lucrative part-time employment for her, albeit the possibility of such a contingency occurring is admittedly small.

[110] Furthermore, the figure for the part-time associate income, tendered in evidence, began in 2004. At least at the time of trial (April 2004), the Plaintiff was not working part-time, but rather was still working as an assistant manager on a full-time basis. Therefore, this figure may be too low.

[111] Upon considering all of these factors, I have concluded that damages for the Plaintiff's loss of capacity should be assessed at $750,000.

(E) General Damages

[112] With respect to general damages, the Plaintiff contends that the award should be between $90,000 to $110,000. The Defendant, on the other hand, submits that it should be in the range of $40,000 to $60,000.

[113] The difference in these ranges turns on the nature, extent and duration of the injuries and on whether the Plaintiff failed to mitigate her loss. In particular, the Defendant's position rests on a finding that her injuries are exclusively soft tissue in nature and that, in any event, she failed to mitigate her loss.

[114] As was set out earlier in these Reasons, the evidence did not show that the Plaintiff failed to mitigate her loss. Moreover, the evidence proved that her injuries were neurological as well as soft tissue. Given these findings, the basis of the Defendant's position on this claim is not supported by the evidence.

[115] As the evidence proved, and as has been set out previously in these Reasons, the Plaintiff has suffered permanent injuries to her neck and lumbar spine. These injuries have an adverse effect on the Plaintiff's quality of life. She is in pain every day and is unable, because of pain, to get a full night's sleep. Though a strengthening exercise program may reduce the pain from her lower back soft tissue injury, or at least stabilize it, it is unlikely to resolve it to any significant degree.

[116] Prior to the accident, the Plaintiff was a very active person participating in such diverse activities as sewing, canning, cooking, skating, aerobics, and gardening.

[117] With the possible exception of cooking and gardening which the Plaintiff can now do on a limited basis, because of her injuries, the Plaintiff can no longer participate in these other activities. Recently, she gave away all of the fabrics that she had been storing having come to the realization that she would never recover to the level that would enable her to sew again. (She cannot bend forward over the machine nor can she sit for any length of time. Her sister testified that in her observation the Plaintiff cannot sit for longer than ten minutes at a time.)

[118] Previously the Plaintiff enjoyed shopping excursions with her sister. Since the accident, because of her injuries, she and her sister have not been on any of these excursions.

[119] Another activity that the Plaintiff enjoyed prior to the accident was participating in frequent extended family gatherings. Though she still participates in them, she is now the last to arrive and the first to leave, whereas before the accident she was the first to arrive and the last to leave. While at these gatherings, her family has noted that she does not engage as much as she did before the accident. Rather now she is more withdrawn and distracted.

[120] In June 1998 (two months after the accident) the Plaintiff and her husband took a much anticipated trip to England. Unfortunately, because of pain the Plaintiff was not able to participate in this adventure as much as she had intended before the accident. For example, because of the pain she was too exhausted at the end of the day to go to the theatre at night. She was in too much pain to engage in intimate relations with her husband.

[121] As far as her personal life is concerned, the Plaintiff and her husband are not able to enjoy activities that they previously did together, including going for long walks together, or working together on the upkeep of their vacation property on Gossip Island. According to her husband, because of her injuries, the Plaintiff has changed. In his testimony, he described her as having lost her shine; as being more withdrawn; as having lost her innocence. He went on to attest that she has some good and some days in which “the tiredness is just hanging off of her.”

[122] After considering all of these circumstances and the principles set out in the cases provided by counsel, I have concluded that the Plaintiff be awarded $100,000 in general damages.

(IV) SUMMARY

[123] To summarize, as a result of her injuries, the following awards are made to the Plaintiff:

(A) Special Damages: $3,601.80 plus interest

(B) Past Loss of Income: $4,740.00 plus interest

(D) Future Loss or Impairment

of Capacity To Earn Income: $750,000.00

(E) General Damages: $100,000.00

(V) COSTS

[124] Costs were not addressed during the trial. If the parties are not able to agree on an order for costs, they may bring on an application at a mutually convenient time.

“J. Sinclair Prowse, J.”
The Honourable Madam Justice J. Sinclair Prowse

Citation:	*Fox v. Danis*,
	2005 BCSC 102