2005 BCSC 1306 Prince-Wright v. Copeman

Before: The Honourable Madam Justice Gray

Reasons for Judgment

Counsel for the Plaintiff:	E.A. Thomas R. Marcoux
Counsel for Defendant:	K. Madsen I. Lee
Date and Place of Trial:	February 15-18, February 21-25, 2005
	Vancouver, B.C.

INTRODUCTION

[1] The plaintiff Ms. Prince-Wright was injured on May 4, 2001, in an accident in the intersection of 12th Avenue and Hemlock Street in Vancouver, B.C. Ms. Prince-Wright was making a left turn when her BMW car was struck by Mr. Copeman’s Jeep. Both liability for the accident and the quantum of Ms. Prince-Wright’s damages were at issue in this nine-day trial.

[2] Ms. Prince-Wright was 39 years old at the time of the accident. She claims that as a result of the accident she suffers continual pain in her neck and head which impairs her ability to concentrate, work, and enjoy physical activity. Ms. Prince-Wright claims that she will be permanently partially disabled from her career as a management consultant. She claims non-pecuniary damages, special damages, and damages for past loss of capacity, future loss of capacity, and cost of future care.

FACTS

(a) Pre-accident

[3] Ms. Prince-Wright was born in Australia in 1962. She was educated in Australia and Canada and for a time in Fiji. She completed enough high school to be admitted to college in Western Australia, where she completed a one-year diploma program in organizational behaviour.

[4] She was married in 1982, and shortly afterwards moved to Vancouver. She became an assistant project manager at Mobile Data International, also known as MDI. MDI handled data over radio waves, such as radio calls for police and taxicabs. Ms. Prince-Wright’s role was to manage the liaison between the production at the design house in the Vancouver area and the manufacturing facility in Japan.

[5] Ms. Prince-Wright’s marriage ended around 1988. At around that time, Motorola acquired MDI. Ms. Prince-Wright became a Motorola employee, and she continued to be employed by that company until February 1994. While an employee, she initially worked on integrating MDI into Motorola. Later, she became quality manager for the mobile data division of Motorola. The number of employees in that division fluctuated, but was often in the range of 600. Ms. Prince-Wright travelled extensively in this role, primarily to Motorola’s head office in Chicago, but also to locations like Japan and Hong Kong. Employee training was part of her responsibility.

[6] Motorola trained Ms. Prince-Wright to provide training to others. She trained senior management, engineers, manufacturing workers, and others at various Motorola locations including Chicago, Baltimore, and Seattle. Motorola considered her to be "certified" to deliver certain programs. One of the programs she was trained to deliver was Motorola’s quality program known as “Six Sigma”. That program became highly regarded in the business community for enhancing high quality performance.

[7] During her years with Motorola, Ms. Prince-Wright served in a number of volunteer positions. She became a board member of the Quality Council of B.C. That organization was formed by a group of senior executives in Vancouver, led primarily by employees of the company then named B.C. Tel. The purpose of the Quality Council was to develop quality management programs in B.C. businesses. Ms. Prince-Wright also became a committee member and later a board member of the Human Resources Management Association. She also volunteered for the B.C. Children’s Hospital Foundation.

[8] Ms. Prince-Wright left Motorola in February 1994 for several reasons. A major reason was that it became clear that if she wanted to continue to progress in her quality management work, she would have to move to Motorola’s head office in Chicago, and she did not want to move. Another reason was that her boss was leaving, and she had particularly enjoyed working with him.

[9] Ms. Prince-Wright started a consulting business named Qualstar Solutions Inc. When she left Motorola, she had contracts to perform services for it. Within weeks, she obtained work from B.C. Hydro, Industry Canada, and a small biotech company. Initially, she worked from her home; later she rented an office in downtown Vancouver. Occasionally she hired someone to do a small piece of the work, but she did not hire regular office staff. She was paid by the hour at rates in the range of $75 to $120.

[10] In 1995, Ms. Prince-Wright decided to pursue an executive MBA. She thought it would broaden her knowledge and give her increased credibility. She took a course in mathematics and economics in preparation for the program. She was accepted into the Simon Fraser University (“SFU”) program beginning in the fall of 1996. This program was designed for people actively working in management.

[11] The executive MBA program required her to attend classes all day Friday and Saturday in alternate weeks and do additional out of class work. She spent on average about 30 hours a week on this program. Ms. Prince-Wright testified at her examination for discovery that she continued to work full time.

[12] As Ms. Prince-Wright anticipated, her earnings through Qualstar dropped while she was taking the MBA courses. During the two years of the program, she stopped taking on projects with significant deadlines which might require her to work long hours and interfere with her studies. Instead, she took on smaller projects. Effectively, she was about 75% as productive in Qualstar when working on the MBA program compared to when she was not studying.

[13] The MBA program was designed for people continuing to work full time. People who worked at different kinds of jobs and who had more university training than Ms. Prince-Wright might not have suffered a similar reduction in work productivity.

[14] Ms. Prince-Wright wrote a thesis for her MBA program in which she compared Motorola with the health care system in Richmond, B.C. This work gave her the opportunity to work with people in the health care system.

[15] Ms. Prince-Wright completed her MBA in the summer of 1998. Around that time, she expanded Qualstar to include Mr. Lee and Ms. McAdam as “partners”. Her plan was to build Qualstar with the hope of selling it for a profit.

[16] Qualstar obtained further work, but the “partners” did not agree on the company's future direction. By late 1999, Ms. Prince-Wright made arrangements to leave the company. She had a brief period around this time of feeling low in mood, but her family doctor considered this minor and did not diagnose depression. Ms. Prince-Wright stopped working for Qualstar at the end of 1999.

[17] Ms. Prince-Wright incorporated Prince-Wright Management Inc. (“PWMI”), and commenced operating it on December 1, 1999. She operated it out of her home, without staff. She purchased a computer, but many of her other expenses, like telephone and rent, were intermingled with her personal expenses. Soon after stopping work for Qualstar, she received calls from people interested in hiring her services. She performed services for Motorola, Telus, and Electronic Arts, and later a number of other well-known businesses.

[18] In 2000, Ms. Prince-Wright suffered occasional lower back pain, which did not cause her to miss work. She saw Dr. Taunton in 2000 about the lower back pain, and was told she had "soft tissue rheumatism".

[19] By 2000, Ms. Prince-Wright was on the executive of the Quality Council, the finance committee of the Canadian Cancer Society, and the board of the Mid-Main Community Health Centre. She was also teaching part of a course in health care economics at SFU. She was paid $1,000 per course, but her motivation in teaching the course was to raise her profile and develop her expertise in that area.

[20] In late 2000, the Quality Council ceased its operations. Ms. Prince-Wright did some of the work to shut it down.

[21] Ms. Prince-Wright’s accountant, Paul Fournier, C.A., prepared income tax returns for both Ms. Prince-Wright and PWMI, and prepared PWMI’s financial statements. He provided tax planning services. He sought to organize her affairs so that she would receive sufficient employment income to be entitled to personal deductions. With respect to other funds, he sought to attribute as much as permissible for corporate expenses, and where possible, to have income tax paid by PWMI rather than Ms. Prince-Wright personally. On average, corporate income tax rates are about 15 to 20% less than personal tax rates.

[22] For its fiscal year ending November 30, 2000, PWMI reported revenue of about $139,000. Its financial statements claim expenses of about $90,000, including about $31,500 for salaries, $7,500 for rent, and $11,000 for automotive. In its financial statements, its income before income taxes was about $49,000. For tax purposes, PWMI reported about $65,000 in net income for 2000. The tax return reflects a lower claim for expenses than the financial statements because of Mr. Fournier’s concern that not all the expenses would be permitted for tax purposes.

[23] Ms. Prince-Wright’s personal income tax return for 2000 includes $25,100 in business income. This reflects her earnings as a sole proprietor after she left Qualstar but before she was working in PWMI.

[24] By early 2001, Ms. Prince-Wright’s work through PWMI included work for Pathnet, a joint venture between MDS Metro Laboratories and BC Biomedical Laboratories Ltd.

[25] Ms. Prince-Wright decided to take an extended holiday. She had planned to take a break when she left Qualstar because she had not had a vacation for years, but did not do so because she quickly obtained interesting work. In late February through April 2001, Ms. Prince-Wright spent most of her time skiing.

[26] Ms. Prince-Wright enjoyed socializing with actual and potential business contacts. Through that socializing, her paid work, and her volunteer work, by May 2001 she was well-known in the community of people who retain business consultants for quality management work and health care work. She had worked for an impressive selection of companies and other entities, and was often asked by the same individual to do a number of assignments. Her prospects of continued financial success with PWMI were excellent.

[27] Ms. Prince-Wright was also a physically active person. In addition to skiing, she frequently ran, biked, hiked, played tennis, and did Pilates exercises. She lived alone. She did not have children and did not plan to have children.

[28] In early May 2001, Ms. Prince-Wright’s health was good. She had suffered some problems with lower back pain and with her left knee. Her left knee anterior cruciate ligament had been repaired. She had discussed headaches and insomnia with her family doctor, Dr. Cragg, and had suffered stomach problems when taking medication. None of those problems had caused her to miss work.

[29] Prior to the accident, Ms. Prince-Wright was an energetic, optimistic, buoyant, extroverted, and accomplished person. She enjoyed her work and was pleased with the way her career was developing. She enjoyed her social life and the variety in work assignments and co-workers. The task of getting work was a pleasure for her, combining her interest in people and work. This made her particularly well-suited for consulting work. She was highly regarded for her skills and professionalism by people who hired her, including Ms. McLeod of Motorola Canada, Ms. Milliken who is an independent consultant who previously worked for Electronic Arts, and Ms. Clipsham who formerly worked for Electronic Arts.

[30] Many of Ms. Prince-Wright's projects involved tight deadlines. A typical project would begin with many information gathering meetings, a period of analysis and consideration of solutions, and a period of finalizing recommendations and writing reports.

[31] Ms. Prince-Wright had suffered occasional periods of feeling low, but had never been diagnosed with clinical depression or taken medication for depression. At one point, Dr. Cragg suggested that Ms. Prince-Wright consider going to a psychologist to deal with issues in her relationships with men. However, Dr. Cragg considered that Ms. Prince-Wright’s feelings were within the ordinary range of feelings. Apart from marriage counselling, Ms. Prince-Wright did not receive any psychological or psychiatric treatment or medication prior to the accident. Overall, Ms. Prince-Wright was a high-achiever with no more physical and emotional grumbles than would be expected at her age and level of physical activity.

(b) May 4, 2001, Accident

[32] The intersection of Hemlock Street and 12th Avenue in Vancouver is essentially flat. There are two northbound and two southbound lanes on Hemlock. On 12th Avenue there are two eastbound and two westbound lanes. Near the intersection, both directions on 12th Avenue have a left turning lane. The intersection is controlled by traffic lights.

[33] The accident occurred at about 12:50 p.m. The roads were damp because it had either just started or just stopped raining lightly. Visibility was fine.

[34] Ms. Prince-Wright was on her way home from lunch with friends who were also business colleagues. She was wearing a lap and shoulder seatbelt and the headrest was adjusted for her. Ms. Prince-Wright drove westbound on 12th Avenue, and then moved into the left turning lane so that she could proceed south on Hemlock Avenue. She put on her left turn signal and drove her car into the intersection while the light was green. She stopped briefly behind the crosswalk line, then moved into the intersection to await an opportunity to make the turn. Eastbound traffic proceeded through the intersection.

[35] According to Ms. Prince-Wright, she saw her light turn amber and saw an eastbound vehicle stop in the lane beside the left turning lane, which I call the centre lane. She testified that she saw her light turn red, checked to ensure there was no other traffic and no pedestrians, and began her turn, looking in her direction of travel. She testified that she was lifting her foot off the clutch and moving slowly when she heard a screeching sound, and looked up to see the Jeep in the intersection about six feet away and coming towards her. That was the first time she saw the Jeep.

[36] The Jeep struck the BMW at about the juncture between the right front passenger door and the engine compartment. The Jeep pushed the BMW east, so that it was in the southeast quadrant of the intersection. Ms. Prince-Wright testified that it felt like her car went up in the air, and she and the car were thrown across the intersection. The car came to rest facing the northbound traffic stopped at the intersection.

[37] Mr. Copeman was driving his 1986 Jeep Renegade east on 12th Avenue to a friend’s home. Mr. Copeman testified that he was driving his Jeep at the speed limit of about 50 kph in the curb-side eastbound lane and was about three car lengths from the stop line when he saw his traffic light turn amber. He testified that he concluded that he could not stop at the intersection safely, and he proceeded into the intersection while the light was still amber.

[38] Mr. Copeman testified that he did not observe any car right behind him or any vehicle in the lane immediately to his left going eastbound. In his direct evidence, he testified that he did not see Ms. Prince-Wright’s BMW until he was coming into the intersection, but under cross examination he testified that he saw the BMW around the time that the light changed to amber. He testified that when he saw the BMW, he applied his brakes and collided with the BMW. He testified that he did not see his light change to red. He testified that the BMW was pushed eastbound on impact, and the two vehicles were straddling the crosswalk on the south side of Hemlock when they came to rest.

[39] Ms. Prince-Wright’s counsel called the evidence of two independent witnesses to the accident. Ms. Morin was standing on the northeast corner of 12th Avenue and Hemlock, waiting for someone who was to show her an apartment. Mr. Sloan was driving his car northbound on Hemlock Street when he stopped at the traffic light at 12th Avenue. His was the first vehicle behind the stopping line, and he saw the accident occur in front of him.

[40] Ms. Morin testified that she was watching the intersection when the accident occurred, and was not distracted by anything. She testified that she saw a vehicle, which was Ms. Prince-Wright’s BMW, stop at the intersection indicating a left turn. Ms. Morin testified that she saw the light turn amber, saw cars clear the intersection, and saw an eastbound car stop in the centre lane.

[41] Ms. Morin testified that Ms. Prince-Wright did not turn until after her light had turned red. She testified that the vehicle that struck Ms. Prince-Wright’s car did not stop at the red light. She testified that she first saw this vehicle, which I refer to as the Jeep, when it was two or three car lengths behind the stopped eastbound car, and that the light was red when she first saw the Jeep. She testified that the light had been red a second or two when the Jeep entered the intersection. Ms. Morin did not recall the sound of screeching brakes. She saw the collision and heard the loud sound of impact. The northbound and southbound cars had not started to move.

[42] Mr. Sloan testified that he was driving north on Hemlock in the curb lane, and stopped at the intersection with 12th Avenue when his light was red. He testified that his car was the first in line behind the painted line. He was not sure whether there was a car stopped in the other northbound lane, although he said he had a clear view of the intersection and therefore assumed that there was no car beside him. He thought it was a nice day. He testified that he saw the BMW drive into an intersection with its indicator on for a left turn to go south on Hemlock. He testified that he watched the light for 12th Avenue change to amber and then to red. He testified that he saw an eastbound car stopped in the centre lane, but he was not sure if that vehicle was intending to continue east or to turn left to go north on Hemlock. He was unsure whether there was a left turning lane.

[43] Mr. Sloan testified that after the light had been red for two or three seconds, he saw the BMW start to turn and saw the Jeep in the curb lane going fairly fast. He testified that the Jeep was quite well back from the intersection when the light turned red. He testified that he saw the Jeep drive through the red light and hit the BMW. He testified that he was unsure whether his (northbound) light was red or green at the moment of the collision, but his foot was on the brake and he was getting ready to drive. He testified that it was a forceful collision, and he saw the BMW move southeast with the force of it.

[44] The evidence of Ms. Morin was particularly compelling because she was a disinterested witness who was not distracted by the need to drive. The weight of the evidence demonstrates that Mr. Copeman’s traffic signal had turned red before he entered the intersection. Ms. Prince-Wright did not begin her turn until after her light had turned red and the car in the eastbound centre lane had stopped for the light.

[45] Ms. Prince-Wright did not see Mr. Copeman’s Jeep. Her view was probably obscured by the stopped car in the eastbound centre lane.

[46] The weight of the evidence supports the finding that the light turned amber when Mr. Copeman was far enough away from the intersection that he should have stopped at the intersection. The vehicle in the eastbound centre lane had already stopped. The light turned red about three car lengths before the Jeep entered the intersection. Mr. Copeman maintained his speed when he drove through the intersection. He was not concerned about being struck from the rear because there was no vehicle immediately behind him. Ms. Prince-Wright slowly drove into her turn, and her BMW was struck forcefully by the Jeep and pushed to the east side of Hemlock Street.

(c) Post-accident

[47] Immediately after the accident, Ms. Prince-Wright felt dazed and confused and she could not remember her name. She did not lose consciousness. Her knee and ankle hurt immediately. An ambulance attended, and an attendant helped her get out of the BMW. She does not know how long it was before she got out of the car. Both the BMW and the Jeep were a total loss after the accident.

[48] Ms. Prince-Wright was taken by ambulance to Vancouver General Hospital and discharged after about three hours. While at the hospital, her back and neck grew stiff. She developed a bruise on her face.

[49] The day after the accident, she could barely move and had a severe headache. Her ankle was fine, but she was limping on her knee, and her upper back and neck were very sore and stiff. She had trouble concentrating and felt dazed and confused.

[50] Ms. Prince-Wright first saw her family doctor, Dr. Cragg, on May 11, 2001, about a week after the accident. Dr. Cragg noted a constant headache, neck pain and noise on movement, back pain, left knee pain and swelling, forgetfulness, nightmares, tears, and difficulty concentrating.

[51] Dr. Cragg recommended physiotherapy treatments. Ms. Prince-Wright took physiotherapy treatments over the period from May through August 2001, but found the physiotherapy did not help and caused significant pain. She discontinued treatment.

[52] Following the accident, Ms. Prince-Wright continued working on her on-going projects by sheer determination. She was suffering severe pain (primarily in her back), severe headache, inability to concentrate, spasms, neck stiffness, and minor knee pain. She was unable to sleep more than a few minutes at a time. She was unable to work for three-and-a-half-hour sessions and reduced the working sessions to under two hours. She was working roughly three hours per day. By June or July, she concluded that she could not work as required and stopped working for the Vancouver Regional Health Board. During the summer, she took acupuncture treatments suggested by Dr. Lui, an orthopaedic surgeon.

[53] Dr. Cragg referred Ms. Prince-Wright to Dr. Stewart for treatment of post-traumatic stress. Ms. Prince-Wright was suffering symptoms including intrusive memories of the accident. Ms. Prince-Wright took this counselling from June until early September 2001. She stopped because of the expense and because she felt the issues arising from the accident had been resolved.

[54] By the end of the summer of 2001, Ms. Prince-Wright felt worse. The pain was worse, and while the stiffness had gone, it was replaced by spasms so intense she could hardly breathe. She obtained little relief from medication. The knee pain was reduced, but replaced with a catching sensation.

[55] Ms. Prince-Wright did not work in the fall of 2001.

[56] In September 2001, Ms. Prince-Wright was referred to Dr. Condon at the Echelon Rehabilitation Clinic for musculoskeletal pain management. He has been treating her since then. Dr. Condon prescribed Flexeril, a muscle relaxant, which Ms. Prince-Wright took and continues to take. It assists in controlling her back spasms. It enables her to sleep a couple of hours at a time, in contrast to about 30 minutes without the medication. However, it gives her a hangover effect of nausea, light sensitivity, and a headache.

[57] In or about November 2001, Ms. Prince-Wright had knee surgery. Within a month, the knee felt fine.

[58] In early 2002, Dr. Cragg prescribed Effexor, an antidepressant, which caused Ms. Prince-Wright to sleep a lot. After about a month on this medication, Ms. Prince-Wright felt better, but would fall asleep continually.

[59] In January and February 2002, Ms. Prince-Wright received further physiotherapy treatment, but experienced no improvement.

[60] On February 6, 2002, Ms. Prince-Wright was assessed by Dr. Kokan, an orthopaedic surgeon, as requested by defence counsel.

[61] In April 2002, Ms. Prince-Wright was assessed by Dr. O'Shaughnessy, a psychiatrist, at her lawyer's request.

[62] Ms. Prince-Wright attended Karp Active Rehabilitation Program in the spring of 2002. She felt worse on this program and stopped it after 12 of the 25 anticipated sessions. Ms. Prince-Wright and the therapist decided together to stop the program, and Dr. Condon also encouraged her to stop.

[63] In August 2002, Ms. Prince-Wright underwent a nerve conduction examination, but no abnormality was found.

[64] Ms. Prince-Wright did a few sessions of work for Motorola in 2002, but reduced the session time from three hours to two hours so she could last. Motorola would have hired her for more sessions if she had been well enough to conduct them.

[65] Ms. Prince-Wright gave up her charity work because of her difficulties sitting and concentrating. She did, however, act as co-chair for the Canadian Cancer Society Diamond Ball. The paid staff organized the event, and Ms. Prince-Wright did things like make telephone introductions. She remained listed as a director in the Society Act records for the Mid-Main Community Health Association, but stopped her active involvement with that society shortly after the accident.

[66] Ms. Prince-Wright's physical activity has been drastically reduced since the accident. She has tried to run and bike but stopped almost immediately owing to pain. She has not skied.

[67] In early 2003, Ms. Prince-Wright did some counselling work for ELM. Her client was aware of her injuries. She was able to complete the six days of work by taking breaks after an hour or two of work.

[68] In early 2003, Ms. Prince-Wright gradually stopped using Effexor owing to the side effects. She felt better emotionally than she had felt one year earlier.

[69] In April 2003, Ms. Prince-Wright attended the Canadian Cancer Society's Diamond Ball. However, she rested in a hotel suite for part of the event, and took medication to enable her to attend.

[70] In 2003, Ms. Prince-Wright taught six of the 13 weekly sessions of the Health Care Economics Program for SFU. Each session lasted about three hours, and she took one or two breaks. She also worked for a private surgery centre, working a total of about 12 days spread over four months.

[71] Ms. Prince-Wright obtained modest temporary relief from Botox injections to her spine. The injections stopped major spasms for four to five weeks, but did not eliminate the general pain or headaches. The Botox treatments were not suitable for long-term use owing to side effects. They also caused some temporary restrictions of her movements.

[72] In 2003, Ms. Prince-Wright was examined by a neurologist, Dr. Johnson, about her headaches. He suggested trying Botox shots in the side of her head and neck. He told her that if she had the shots, she would likely be unable to hold up her head because it would paralyze the muscle. She did not take that treatment.

[73] By the fall of 2003, Ms. Prince-Wright was better able to manage her pain by understanding the optimal time to take medication and stop effort and by using techniques to maximize her sleep.

[74] Ms. Prince-Wright's gross revenue in PMWI in 2003 was about $17,500.

[75] Since late 2003 or 2004, Ms. Prince-Wright has been experiencing knee stiffness and an ache.

[76] In early 2004, Ms. Prince-Wright commenced working as a project manager for a provincial lab reform project. She worked regular office hours, Monday through Friday, for about ten weeks. She found working these hours excruciating, but did not take time off work except to attend doctor's appointments. She used a heating pad most of the time and shifted from sitting to standing during meetings. She stopped working on this project when the project operators terminated her contract. At that point, her work was finished.

[77] Ms. Prince-Wright rested for a period after the lab project. She next worked at B.C. Women's and Children's Hospital on a project of three or four days that she completed over about three weeks. She had concluded that she could not maintain daily work. She found other work that she could do without full-time daily work.

[78] Ms. Prince-Wright also attended the April 2004 Diamond Ball, again resting part-way through the event.

[79] From the fall of 2004 until the end of January 2005, Ms. Prince-Wright worked on a project with Partnerships B.C. in connection with redevelopment of St. Paul's Hospital. She was eager to work on this project because it was related to significant change and, in her view, was an important and high-profile project. She worked full time Monday through Friday, although some days she left early because of pain and worked at home. The work arrangement was sufficiently flexible that she could use a heating pad and lie on chairs or the floor as necessary. She worked essentially full time from October 18, 2004 to January 31, 2005.

[80] Ms. Prince-Wright did not work between January 31, 2005 and the trial which began February 15, 2005.

[81] Ms. Prince Wright exercises most days, performing exercise suggested by Dr. Condon, physiotherapists, and her Pilates instructor. She continues to have a constant headache and suffers neck pain and catching and back spasms and pain. Her main problem is the constant ache in her upper back that occasionally becomes so intense she cannot breathe. The pain spreads along the ribs. She gets a sharp pain as if she cannot move her arms, and she has numbness in her forearms and hands. She also has aching and very severe sharp pain in the back of her neck. She has a lot of dizziness and nausea with the headaches and backaches. Her arms feel weak and she has numbness in her fingers on a daily basis. She cannot tolerate prolonged sitting or prolonged exercises. She has trouble staying asleep for periods longer than about one hour. She also suffers lower back stiffness, which is slightly worse than before the accident.

[82] Ms. Prince-Wright's physical activities are significantly reduced. She does not ski or run or do hikes over about 90 minutes. She attends some breakfast and lunch events with potential clients, but far less than before the accident, and not on days when she is working and must therefore conserve her energy. She is not a member of a board of directors, although she is on an advisory committee for the Diamond Ball. She estimates that she can accomplish about three good hours of work a day for periods of up to a month or two. Beyond that, managing the pain is too exhausting.

[83] Ms. Prince-Wright remains a highly qualified and experienced consultant. She is motivated to continue her career, but has lost significant energy and stamina since the accident and is more subdued.

(d) Medical and Other Evidence

(i) Dr. Cragg, Ms. Prince-Wright's treating family physician

[84] Dr. Cragg has been Ms. Prince-Wright's family doctor since 1979. In 2001, Dr. Cragg diagnosed Ms. Prince-Wright with the following arising from the accident:

a. depression and post-traumatic stress;

b. left knee problems which I will not detail;

c. insomnia;

d. soft tissue injuries, neck thoracic and lumbar spine consistent with paraspinal muscle sprain and interspinous ligament injury; and

e. chronic headaches.

[85] In 2002, Dr. Cragg reported that Ms. Prince-Wright had significant chronic back pain, insomnia, depression, post-traumatic stress disorder, headaches, and right-sided C8 nerve irritation. She wrote that all symptoms except depression arose from the accident. She wrote that the depression arose from the chronic pain and disability subsequent to the accident.

[86] In 2004, Dr. Cragg wrote that Ms. Prince-Wright had suffered significant chronic pain impairing her ability to work. Dr. Cragg wrote that she had not seen someone as severely compromised for as long as Ms. Prince-Wright.

[87] In late 2004, Dr. Cragg wrote that Ms. Prince-Wright had chronic stomach pain and diarrhoea because she takes Advil instead of a more costly prescription drug with potentially fewer side effects. She wrote that Ms. Prince-Wright had recently developed migraines. Dr. Cragg anticipated that Ms. Prince-Wright would need on-going treatment.

[88] Dr. Cragg referred Ms. Prince-Wright to Dr. Mae Ong at St. Paul's Hospital for on-going pain management. Ms. Prince-Wright was still on the waiting list for that treatment at the time of trial. The treatment would not eliminate the pain, but would help Ms. Prince-Wright to manage it.

(ii) Dr. Kokan, orthopaedic surgeon, investigating for defence counsel

[89] Dr. Kokan examined Ms. Prince-Wright on February 6, 2002, at the request of defence counsel. Dr. Kokan's impression was that Ms. Prince-Wright sprained her cervical, dorsal, and lumbar spine; her left knee; and her left foot. His impression was also that she has residual soft tissue pain in the neck and upper back with constant headaches related to soft tissue injuries in the neck and upper back.

[90] Dr. Kokan was of the view that the best treatment for Ms. Prince-Wright would be a well-supervised exercise program like the Karp program. He was of the view that returning to work in February 2002 would not have hurt her physically. He would have recommended that she return to work if she were his patient, subject to consideration of psychological issues. He was of the view that she had a good chance for improvement if she engaged in an optimal rehabilitation program and could tolerate the necessary level of activity.

(iii) Dr. Condon, Ms. Prince-Wright's treating musculoskeletal pain management physician

[91] Dr. Condon has been treating Ms. Prince-Wright since September 2001. He was qualified at trial as an expert in musculoskeletal pain management. He is a medical doctor who qualified in Britain as an anaesthesiologist. He has worked as an anaesthesiologist, family doctor, and emergency doctor. For about the last ten years, he has been working at the Echelon Rehabilitation Clinic, which treats referred patients suffering from musculoskeletal injuries and degenerative musculoskeletal disorders.

[92] Dr. Condon diagnosed Ms. Prince-Wright with cervico-genic headaches, interspinous ligamentous injury (maximal at C2/3 in the neck and diffusely over the dorsal spines), and left knee joint pathology.

[93] Dr. Condon's view is that Ms. Prince-Wright suffered ligament injuries, and her problems may have been prolonged because of stretching in therapy following the accident. In his view, her symptoms had not changed significantly in the period from August 2002 to June 2004. In August and November 2004, she reported more severe headaches.

[94] Dr. Condon's opinion is that Ms. Prince-Wright's prognosis for a full and complete recovery in the foreseeable future is very poor. In his view, she has plateaued, and will not likely achieve further progress towards her pre-accident physical status. In his view, she will be forced to live with her chronic pain condition, fatigue, and compromised ability to work and play. In his view, the challenge will be to maintain her present level of recovery.

(iv) Dr. O'Shaughnessy, psychiatrist investigating for Ms. Prince-Wright

[95] Dr. O'Shaughnessy assessed Ms. Prince-Wright at her own lawyer's request on April 5, 2002, February 18, 2003, and November 23, 2004. He diagnosed her as suffering an acute stress reaction at the accident scene and subsequently developing post-traumatic stress disorder. In his view, the symptoms of that disorder had resolved by November 2004.

[96] Dr. O'Shaughnessy diagnosed Ms. Prince-Wright with depression, which increased significantly through the summer and fall of 2001, and with a major depressive episode by December 2001. This had resolved by November 2004 and probably earlier. She also developed symptoms of generalized anxiety disorder, but by February 2003 that seemed to be resolved.

[97] Dr. O'Shaughnessy wrote that Ms. Prince-Wright is at risk for relapse of the anxiety disorder, mood disorder, depression, or some combination of those problems. He wrote that she is particularly vulnerable to further episodes of depression if she experiences further setbacks in her physical condition.

(v) Conclusions from medical evidence

[98] The medical evidence was mostly consistent. Drs. Kokan and Condon had different views about whether Ms. Prince-Wright's injuries were ligamentous and about the value of an active program like the Karp program. It is not necessary for the purpose of this trial to determine whether the injuries were ligamentous since they were clearly soft tissue injuries caused by the accident. Experience demonstrated that Ms. Prince-Wright was not assisted by the Karp program, and she made a realistic effort to work through it. I accept the evidence of Drs. Cragg, Condon, and O'Shaughnessy, and where it is consistent, Dr. Kokan. Ms. Prince-Wright will likely be forced to live with chronic pain, fatigue, and a compromised ability to work and play.

(vi) Ms. Milliken, management consultant

[99] Ms. Milliken is an independent consultant in Vancouver in the field of human resources management. She is a certified human resources consultant, a qualification Ms. Prince-Wright does not hold. Ms. Milliken's work is related to, but not the same as, the work that Ms. Prince-Wright has done. Ms. Milliken achieves fees averaging $125 per hour, with annual recent billings in the range of $250,000 for about 2,200 billable hours. She also works about 700 non-billable hours, in part to maintain her visibility so that she can obtain billable work. Her fixed costs are about $25,000.

ISSUES

[100] The issues are as follows:

(a) Is Mr. Copeman wholly or partially responsible for the accident?

(b) What is the proper measure of Ms. Prince-Wright’s non-pecuniary losses?

(d) What is the proper measure of Ms. Prince-Wright’s future loss of capacity?

(e) What is the proper measure of Ms. Prince-Wright’s costs of future care?

(f) What is the proper measure of Ms. Prince-Wright’s special damages?

ANALYSIS

(a) Is Mr. Copeman wholly or partially responsible for the accident?

[101] Mr. Thomas, counsel for Ms. Prince-Wright, argued that Mr. Copeman was wholly responsible for the accident. Ms. Madsen, counsel for Mr. Copeman, argued that Ms. Prince-Wright was primarily at fault and that Mr. Copeman should be found only 25% at fault for the accident.

[102] The Motor Vehicle Act, R.S.B.C. 1996, c. 318 addresses the duties of motorists approaching red traffic lights and those making left turns.

[103] The relevant portion of s. 129(1) is as follows:

Subject to subsection (2), when a red light alone is exhibited at an intersection by a traffic control signal, the driver of a vehicle approaching the intersection and facing the red light must cause it to stop before entering the marked crosswalk on the near side of the intersection … and subject to the provisions of subsection (3), must not cause the vehicle to proceed until a traffic control signal instructs the driver that he or she is permitted to do so.

[104] The evidence demonstrates on a balance of probabilities that the traffic light for Mr. Copeman was red when he drove his Jeep into the intersection. Ms. Prince-Wright did not see the Jeep, probably because her view was obscured by the eastbound car stopped at the light. Ms. Prince-Wright was not negligent by failing to anticipate that Mr. Copeman would fail to stop at the red light. She was entitled to assume that Mr. Copeman would stop for a red light. See Pacheco (Guardian ad litem of) v. Robinson, [1993] B.C.J. No. 154 (B.C.C.A.).

[105] Mr. Copeman's negligence in failing to stop for a red light was wholly responsible for the accident.

(b) What is the proper measure of Ms. Prince-Wright’s non-pecuniary losses?

[106] Mr. Thomas argued that Ms. Prince-Wright’s damages for non-pecuniary losses fell within the range of $75,000 to $100,000. He relied on the following decisions: Fox v. Danis, 2005 BCSC 102; Gabbard v. Hung, [1999] B.C.J. No. 1907; Dawson v. Gee, 2000 BCSC 147; Peters v. Kay, 2004 BCSC 1160; and Kerr v. Macklin, 2004 BCSC 318.

[107] Ms. Madsen argued that Ms. Prince-Wright’s damages for non-pecuniary losses fell within the range of $30,000 to $40,000. She argued that Ms. Prince-Wright failed to provide evidence of a convincing nature to overcome the improbability that her self-reported pain continued after one year after the accident. She referred to Maslen v. Rubenstein, [1993] B.C.J. 1813 (C.A.). She also argued that Ms. Prince-Wright ought to have resumed her ordinary work by the spring of 2002. Ms. Madsen relied on the following decisions:

Price v. Kostryba, [1982] B.C.J. No. 1518 (S.C.)

Letourneau v. Min, 2001 BCSC 1519

Gray v. Balsdon, [1996] B.C.J. No. 667 (S.C.)

Gutoski v. Hammett, [1998] B.C.J. No. 343 (S.C.)

Leung v. Testani, [1997] B.C.J. No. 1661 (S.C.)

Hadland v. Thompson, 2002 BCSC 380

Claiter v. Rose, 2004 BCSC 50

[108] Ms. Prince-Wright was a bright, successful, and active person before the accident, who thrived on her work and the related socializing and volunteer work. She was highly motivated to work and socialize with her business associates. She remains highly motivated to do so, although she restricts her activity in an effort to keep her pain under control and because she is far less energetic. She has not been malingering in any way.

[109] Ms. Prince-Wright's soft-tissue injuries resulted in significant chronic pain. She has recovered from the post-traumatic stress disorder, which she suffered immediately after the accident, and from the clinical depression she suffered as her chronic pain continued unabated. She has mostly recovered from the knee problems. She is continually fatigued, and cannot enjoy recuperative sleep. She is at risk of developing depression in the future. She has lost much of the joy of work, socializing, and physical activity.

[110] Ms. Prince-Wright has not exaggerated her symptoms; if anything, she has minimized them to maintain a positive attitude. The evidence convincingly overcomes the improbability that her pain would continue to the extent it has since the accident. Ms. Prince-Wright took reasonable steps to try to improve her health and to minimize her damages.

[111] It is always difficult to assess general damages, and each case is unique. Ms. Prince-Wright is entitled to damages for non-pecuniary losses in the amount of $100,000.

(c) What is the proper measure of Ms. Prince-Wright’s past loss of capacity?

[112] Mr. Thomas argued that Ms. Prince-Wright should be given an award in the range of $261,000 to $270,000 for her past loss of capacity.

[113] Ms. Madsen argued that Ms. Prince-Wright’s past loss of capacity was no more than the gross amount of $140,000, or about $98,000 net of taxes. She argued that Ms. Prince-Wright ought to have started work on a graduated basis in August 2002 and to have reached full time by the end of 2003.

[114] Ms. Prince-Wright’s work prospects prior to the accident were excellent. Her experience working in quality management for Motorola and her MBA degree were both valued by people who hire business consultants. She had worked for many well-known clients, and was highly regarded by them. She participated in high-profile volunteer work. Her consulting work following her departure from Motorola has established her as a consultant with expertise in both quality management and health care at a time when the health care industry in B.C. values business experience and knowledge.

[115] But for the accident, Ms. Prince-Wright likely would have continued consulting in a full-time capacity. Her income probably would have fluctuated from time to time for several reasons. Some of her clients may have ceased business in the Vancouver area, as did Motorola. However, her experience and her repeat clientele were sufficiently diverse that she likely would have replaced any such work with alternate work relatively quickly. Over her entire working life, she may have chosen to take extended holidays or to limit her workload if the available work seemed uninteresting.

[116] Ms. Prince-Wright was eager and determined to return to work. I reject the suggestion that she could reasonably have returned to work earlier than she did in fact.

[117] Calculation of what Ms. Prince-Wright earned prior to the accident and following the accident is complicated by her use of incorporated companies with different year-ends and other tax planning steps.

[118] Ms. Prince-Wright relied on the evidence of Mr. Fournier, C.A. He estimated that Ms. Prince-Wright lost a total of about $262,000 in income, net of taxes, in the period from May 4, 2001, through June 30, 2004. He estimated that if she continued to work at the same level after the accident, her annual net income would have been $121,000.

[119] The defence did not tender an expert report relating to Ms. Prince-Wright's income loss, relying instead on cross-examination of Mr. Fournier and considerations of financial documentation.

[120] Mr. Fournier's report sought to calculate Ms. Prince-Wright's average historical income for six years prior to the accident by adjusting for unusual years to "normalize" Ms. Prince-Wright's income. The adjustments were significant, relating to her MBA, her extended vacation, and to her ability to obtain some personal benefit from business expenses.

[121] Mr. Fournier assumed that Ms. Prince-Wright worked only 25% of full time when she was completing her MBA, and he notionally increased her 1997 and 1998 income four times to reflect that. As stated above, Ms. Prince-Wright was about 75% as productive while completing her MBA, and as a result, Mr. Fournier's report notionally increased her 1996 and 1997 income too much

[122] I made several different adjustments to Mr. Fournier's calculations for the purpose of comparison. On my calculations, reducing Mr. Fournier's adjusted net income for 1997 and 1998 by one-half results in Ms. Prince-Wright's average adjusted net annual income for all six years being about $97,000. That figure would be appropriate if she had been 50% as productive in Qualstar during her MBA. If the actual income for 1997 and 1998 is used without adjustment, the average is $85,000. If the adjusted net income for 1997 and 1998 is increased by one-third to reflect having been only 75% as productive, the average is $89,000.

[123] The accident was relatively soon after Ms. Prince-Wright had settled into her own consulting business PWMI, following completion of her MBA. She essentially worked 14 months in PWMI and then took an extended vacation. As a result, a consideration of Ms. Prince-Wright's earnings through PWMI alone might not accurately reflect her likely earnings level. Mr. Fournier's approach considers the six-year period commencing with her work through Qualstar, making his analysis more likely to be reliable. However, because of his many adjustments to "normalize" the income, I also considered a different approach to calculating Ms. Prince-Wright's annual income if the accident had not occurred.

[124] If Ms. Prince-Wright billed 1,500 hours annually at an average of $100 per hour, her gross billings would have been $150,000. The evidence of Ms. Prince-Wright about her work and of Ms. Milliken about hers supports those assumptions. That is a little less than the $164,000 in revenue Ms. Prince-Wright earned in 2000 in both PWMI and her proprietorship. Considering that PWMI was in its first year of operations, and Ms. Prince-Wright was starting it up and doing work billed in later months, the $150,000 annual revenue estimate may be conservative. It is consistent with her earnings in December 2000 and January 2001.

[125] Some of Ms. Prince-Wright's expenses were fixed, like office expenses, while others varied, such as promotional expenses. The expenses claimed historically by Ms. Prince-Wright's various corporations show that her annual fixed expenses are in the range of $20,000 and variable expenses are about another 10% of revenue. She claimed more expenses than that, but some claimed expenses were items for which she also derived personal benefit, such as use of her home office. As a result, annual revenue of $150,000 net of such expenses would have been in the range of $115,000.

[126] Reducing that figure by 10% to reflect periodic slowdowns in available work or extended vacations would result in average annual revenue of about $105,000. Assuming personal income taxes of roughly $25,000, her average annual net earnings would be $80,000.

[127] Having considered both analyses, I find that it is most likely that if the accident had not occurred, Ms. Prince-Wright's net annual earnings for the period until trial would have been about $85,000.

[128] In the period from May 4, 2001, until the completion of trial on February 25, 2005, Ms. Prince-Wright earned about $50,000 net. This was a complicated calculation because of the corporate structure and because she was able to take advantage of some tax planning.

[129] During the period from May 4, 2001, until February 25, 2005, but for the accident, Ms. Prince-Wright would have earned about $320,000 net. Her income loss to trial as a result was about $270,000. She is entitled to that sum for past loss of capacity.

(d) What is the proper measure of Ms. Prince-Wright’s future loss of capacity?

[130] Mr. Thomas argued that Ms. Prince-Wright’s future loss of capacity fell within the range of about $400,000 to $1,000,000. That is based on the assumption that, but for the accident, Ms. Prince-Wright would have earned about $121,000 net per year, and that she has lost the ability to earn 20% to 50% of that. The net present value at the discount rate applicable to future loss of capacity of $1,000 from the trial date to Ms. Prince-Wright’s 65th birthday, adjusted for survival probabilities, is $16,501.

[131] Ms. Madsen argued that Ms. Prince-Wright’s loss of future capacity was modest and that an appropriate award would be in the range of $10,000 to $20,000. She argued that Ms. Prince-Wright is now able to work full time.

[132] The Court of Appeal has approved the consideration of the following questions in assessing loss or impairment of earning capacity:

(a) First, has the plaintiff been rendered less capable overall of earning income from all types of employment?

(b) Second, is the plaintiff less marketable or attractive as an employee to potential employers?

(c) Third, has the plaintiff lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured?

(d) Fourth, is the plaintiff less valuable to himself as a person capable of earning income in a competitive labour market?

(See: Pallos v. Insurance Co. of British Columbia, [1995] 3 W.W.R. 728 (C.A.) and Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.)).

[133] As stated by Madam Justice D.M. Smith in Letourneau v. Min, cited earlier, the exercise of quantifying lost earning capacity “has variously been described as ‘arbitrary’ (referring to Pallos v. ICBC, also cited earlier), “judgmental” (referring to Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158 (C.A.), and “crystal ball gazing” (referring to Dyck v. Dave Buck Ford Sales Ltd., [1999] B.C.J. No. 1789 (QL) (S.C.)).

[134] As stated by Madam Justice Huddart for the Court of Appeal in Bradley v. Dymond, 2002 BCCA 284 at para. 9:

...The trial judge must gaze into the future with the benefit of all the evidence to assess two uncertainties: what might have been and what might be. Both require an assessment of the physical, emotional, and mental capacity of a claimant, of his character, of the family, community, and economic forces at work.

[135] In Pallos, cited earlier, Finch, J.A., as he then was, said this at para. 43:

The cases to which we were referred suggest various means of assigning a dollar value to the loss of capacity to earn income. One method is to postulate a minimum annual income loss for the plaintiff’s remaining years of work, to multiply the annual projected loss times the number of years remaining, and to calculate a present value of this sum. Another is to award the plaintiff’s entire annual income for one or more years. Another is to award the present value of some nominal percentage loss per annum applied against the plaintiff’s expected annual income. In the end, all of these methods seem equally arbitrary. It has, however, often been said that the difficulty of making a fair assessment of damages cannot relieve the court of its duty to do so.

[136] Ms. Prince-Wright's work-related assets before the accident were her intelligence, experience, knowledge, contacts, personality, and energy. She has lost her high energy level and her ability to take on work demanding long hours and immovable deadlines. She has lost the ability to perform work requiring even regular hours for extended periods. She has lost the energy to take steps to maintain her profile in the business community during periods while she is working. Ms. Prince-Wright likely will use breaks between projects both to recuperate and to revitalize her profile, essentially doing her non-billable marketing work during interruptions in billable work. She may suffer extended breaks between projects while she finds work which is practical for her in light of her work restrictions.

[137] Ms. Prince-Wright has had a short work history since the accident. She has chosen assignments that do not have major deadlines so that she can avoid the work which required significant stamina. It will be more difficult for her to find work which meets her restrictions than it would have been for her to find work when she could accept any project. Fortunately, her impressive training and abilities suggest that she will often find suitable work.

[138] It is fair to estimate that Ms. Prince-Wright likely will earn about 40% less than she would have earned if she had not been injured. Applying that to her likely average net earnings of $85,000, her loss would be in the range of $34,000 net per year.

[139] Multiplying the annual loss of $34,000 by the present value multiplier of 16.5 results in a figure of about $560,000. That figure gives guidance for assessing an appropriate figure to compensate Ms. Prince-Wright for her lost earning capacity.

[140] In all the circumstances, an award of $550,000 will fairly compensate Ms. Prince-Wright for her loss of future earning capacity.

(e) What is the proper measure of Ms. Prince-Wright’s costs of future care?

[141] Mr. Thomas argued that Ms. Prince-Wright should be awarded about $25,000 in respect of her claim for the cost of future care. That was based on an assumed annual expenditure of $1,000 multiplied by $21,102 by using the present value discounted at the rate for the cost of future care, adjusted only for survival probabilities and assuming that Ms. Prince-Wright will work until she is age 65.

[142] Ms. Madsen argued that Ms. Prince-Wright failed to prove any future care costs, and should not receive an award for this claim.

[143] The evidence demonstrates that Ms. Prince-Wright is likely to continue incurring annual expenses of $800 for Ibuprophen. While Ms. Prince-Wright is also incurring the costs of Pilates class, she incurred that prior to the accident. Applying the multiplier of 21.1 to $800 per year yields $16,880. Ms. Prince-Wright is entitled to $17,000 for the costs of her future care, subject to tax gross-up.

(f) What is the proper measure of Ms. Prince-Wright’s special damages?

[144] Ms. Prince-Wright claims special damages of $11,150. Ms. Madsen argued that an appropriate award was for $3,291.70.

[145] The biggest part of Ms. Prince-Wright's claim was for $6,400 for Ibuprofen, but she did not retain receipts or otherwise record what she spent for it. The evidence supports the assessment that she paid about $800 per year for Ibuprofen, being about $3,000 for the period to trial. Her additional special damages claim was supported by receipts in the amount of about $3,600. That amount follows deduction from her claim of costs for two prescriptions unrelated to the accident (being Ipratropium and Novamoxin), and for counselling fees paid by ICBC.

[146] Ms. Prince Wright is entitled to $6,600 for special damages.

SUMMARY

[147] In summary, Ms. Prince-Wright is entitled to judgment for the following:

(a) non-pecuniary damages of $100,000;

(b) $270,000 for past loss of capacity;

(d) $17,000 in respect of the costs of future care subject to tax gross-up; and

(e) $6,600 in respect of her claim for special damages.

[148] The parties have liberty to apply to determine the tax gross-up on the future care costs.

[149] Unless the parties have submissions on the question of costs, Ms. Prince-Wright is entitled to her costs at Scale 3.

[150] If either party wishes to make submissions on costs or on tax gross-up for future-care costs they should provide written submissions on a schedule to be agreed between counsel so long as all submissions are filed by November 30, 2005. If the parties have difficulty agreeing on a schedule for submissions, they can apply for a short hearing to determine the schedule.

“V. Gray, J.”
The Honourable Madam Justice V. Gray

Citation:	*Prince-Wright v. Copeman,*
	2005 BCSC 1306