2008 BCSC 791 Pascoa v. Xua

Before: The Honourable Madam Justice Boyd

Reasons for Judgment

Counsel for the Plaintiff:	V.J. LeBlanc T.A. Chandler
Counsel for the Defendants:	B.W. Lemer
Date and Place of Trial:	April 28-30, 2008, May 2, 2008 and May 5, 2008
	Vancouver, B.C.

1.0 Introduction:

[1] The plaintiff claims damages for injuries arising out of two motor vehicle accidents which occurred on November 8, 2004 and September 17, 2006. Liability has been admitted. The only issue concerns the quantum of damages to be awarded.

2.0 Background Facts:

[2] The plaintiff was born April 16, 1980 and was 24 years of age on the date of the first accident. She completed her Bachelor of Arts degree at Simon Fraser University in April 2004 and in the fall of 2004 was enrolled in the first stage of the Professional Development program, completing a teaching practicum at the Capilano Elementary School. She was living at home with her parents and her older sister.

[3] On the date of the accident, November 8, 2004, she was driving home from Simon Fraser University along the Mountain Parkway and had come to a stop behind a line of cars. She was wearing a three-point seat belt. She looked into the rear view mirror and saw the defendant Xue’s vehicle rapidly approaching. Expecting a collision and not wanting her vehicle to be pinned between the vehicles in the line-up, she turned the steering wheel to the right. Just as she did so, her vehicle was struck from the rear.

[4] Despite having her foot on the brake, her vehicle was pushed forward, striking the vehicle ahead of her and partially jumping the curb. The right side wheels of her vehicle straddled the curb as it was pushed forward on a grassy embankment, eventually coming to rest on a side road. She estimated her vehicle travelled forward approximately 50 feet from the point of impact. While she did not describe her head striking any part of the interior of the vehicle, I note that the eyeglasses she was wearing at the time of the accident were somehow broken during the collision.

[5] The repair costs for her vehicle were estimated to be in excess of $12,000 and accordingly, the vehicle was deemed a write-off. The three other vehicles involved in the accident, including the defendant’s own vehicle and the two vehicles ahead of Ms. Pascoa, all suffered damages, totalling $7,704, $6,723 and $1,333 respectively.

[6] While she did not lose consciousness and was able to get out of her vehicle, she immediately felt shaky, confused and disoriented. She noted a sensation she described to be like a “carpet burn” extending from her shoulder blades down to her lower back. She telephoned her father who travelled to the scene. While she complained of pain she reassured him it was unnecessary to attend hospital and that she simply wished to return home. Once home, she experienced pain in her shoulders, chest, back and neck and noted the onset of a headache. Later in the evening, she felt shooting pains in her buttocks down her right leg and a tingling sensation in her left arm. The next morning she had great difficulty getting out of bed. Her parents noted that she was whimpering in pain and unable to even lift her arm to brush her teeth.

[7] That day she visited her long-time family doctor, Dr. Briscoe, who examined her and noted that her neck and shoulder muscles were tight and tender and in spasm. While she could rotate her neck laterally to the left, rotation to her right was restricted. Forward flexion of the neck was extremely limited. Internal and external rotation of the shoulder joints was also limited due to pain. The middle of her back hurt with breathing. Dr. Brisco prescribed pain medication muscle relaxants and physiotherapy.

[8] The plaintiff was unable to attend her teaching practicum for approximately one week.

[9] She returned to visit Dr. Brisco on November 23, 2004. Dr. Briscoe took particular note of her complaint of pain behind her eyes, which she associated with the disruption of the first cervical nerve caused by the extreme flexion of the head and neck during impact. During that session, the plaintiff also complained about her difficulties attending her part-time job.

[10] While attending university, the plaintiff had historically continued to work part-time at the Bank of Montreal. At the time of the accident, she was employed as a financial services manager on Thursdays and Fridays from 4:00 p.m. to 8:00 p.m., and on Saturdays from 8:30 a.m. to 5:00 p.m., for a total of 15.5 hours per week. While she attempted to return to work at the bank approximately a week after the accident, it became clear that she simply could not cope with the pain. She spoke with her parents and considered the possibility of quitting her practicum. With her parents’ encouragement she consulted Dr. Brisco who recommended she discontinue her part-time banking work and focus on completing her practicum. As a result, the plaintiff discontinued her part-time employment and applied for short-term disability benefits which continued until she was able to return to work in April 2005, following the completion of the University term studies.

[11] In the interim, the Pascoa family rallied to support the plaintiff. Since it was hard for her to walk downstairs to her study area in the basement of the family home, her computer was moved upstairs and the family dining room was converted to a study area. Since she was initially unable and later unwilling to drive, her father became her steady chauffeur to and from work and other venues. While family chores were usually regularly shared, the plaintiff’s share of housework, yard work and cooking was taken over by her parents and sister. Once her sister married and left home in early 2006, the parents carried the full load between them.

[12] For some time the plaintiff had planned that in April 2005, at the completion of the practicum, she would participate in the SFU Teaching Abroad program—a program which allows student teachers to experience teaching in an affiliate school in another country outside Canada. Being a very independent adventurous young woman, she had planned to travel on her own to some foreign country to experience teaching in another culture. Now physically compromised and heavily dependent on her family’s support, she said that such a solo venture was beyond her abilities. Her parents encouraged her to find some way of doing so and offered their support. Since her parents’ attendance at most affiliate international schools’ locations was beyond the family’s means, they explored other alternative schools. Through the Rotary Club and with SFU’s agreement, they were eventually able to organize an equivalent program with a school in San Felipe, Mexico.

[13] Unable to cope with the lengthy drive to Mexico, the plaintiff arranged to fly to Palm Springs, California where she met up with her parents who had travelled south in the family’s fifth wheel trailer. From California, they continued the short drive to Mexico where the plaintiff worked in the affiliate school for several weeks. The fifth wheel trailer nearby served as the family home away from home. Her father drove her to and from the school daily and both parents provided the much-needed emotional and physical support she required, preparing meals and attending to all her needs.

[14] At the end of April 2005, she returned from Mexico and resumed her part-time job as a financial services manager at the Bank of Montreal. She found the work physically challenging since she was unable to sit for long periods without suffering pain in her neck, back and shoulders. Between appointments with banking clients, she stood to stretch. Eventually, with her supervisor’s blessing, she arranged to purchase a special ball-chair (an exercise ball sitting on a platform on casters) to use at work. Her co-workers recognized she was in pain and during breaks they often found her resting on the couch in the staff lounge.

[15] In September 2005, she secured employment as a substitute teacher with the District of North Vancouver School Board. She did not apply for employment with any other district in the Lower Mainland, stating that it was important to her to work close to home and avoid driving as much as possible. She was able to perform her work as a substitute teacher without much difficulty. As she explained, a substitute teacher’s workday is limited to regular 8:30 a.m. to 4:00 p.m. day, with little or no marking or preparation of report cards after school hours.

[16] In February 2006, her older sister Christina married. Since the two sisters are very close, Christina asked the plaintiff to be her maid of honour. It was a matter of disappointment for both sisters that the plaintiff was unable to play any significant role in either planning or bringing the wedding event to fruition. According to Christina, the plaintiff was generally stressed and unable to cope with the extra load of assisting with the wedding plans.

[17] On September 17, 2006, the plaintiff was involved in a second motor vehicle accident. She was riding as a passenger in her husband’s vehicle which had come to a stop in a line of traffic. The vehicle was rear ended by the defendant Supena’s vehicle. The vehicle was pushed forward approximately three feet. While the plaintiff’s pain and discomfort were exacerbated for a short period, her overall symptoms soon settled back to their pre-September 2006 status.

[18] In September 2007 she succeeded in finding full-time work as a Grade 6/7 teacher at Seymour Heights Elementary school. While she has been able to cope with her work, she does so by devoting most of her energies outside work to completing the ongoing marking and end of term preparation of report cards. She finds it very difficult to sit for long periods at a computer performing this work.

[19] In February 2005, the plaintiff met Mr. Scott McIntyre. They eventually engaged and married in September 2007. As of their first date, McIntyre was aware of the plaintiff’s injuries which have continued to play a central role in their lives.

[20] In anticipation of their marriage, they purchased a modest fixer-upper home in a North Vancouver neighbourhood, relatively close by the plaintiff’s parents’ home. They undertook a full basement renovation in 2006 and rented the house to tenants. The plaintiff’s family as well as her husband and his family played a significant role in undertaking that renovation project. Her parents described the extensive work performed by all family members to complete the project, with little contribution from the plaintiff. While she stood by organizing lunches or doing “gopher” work, fetching materials, for the most part she was unable to assist directly.

[21] By the summer of 2007, the plaintiff was able to return to the gym to do workouts, largely in an effort to lose the weight she had steadily gained since the accident. In addition she was anxious to build up the strength in her latissimus dorsal muscles, as Dr. Brisco recommended, so as to improve her posture. While she did not lose any weight, she admitted that she has built up her endurance. She has continued to attend the gym for workouts since that date.

[22] As to her own wedding in September 2007, once again she was very restricted in her ability to participate in the planning. Her father and sister reconnoitred the possible venues for the wedding and having done so, sought her final approval. Her sister Christina was heavily involved in much of the planning and legwork.

[23] The pre-wedding period also overlapped the renovation of the upstairs of the plaintiff’s house, installing a new kitchen and bathroom. Once again both families participated in bringing this round of renovations to fruition. Again, the plaintiff largely stood by while her husband and others completed the renovation and the pre-wedding planning.

[24] Over the last 6-8 months, the plaintiff has engaged in more and more activities, attending the gym weekly, meeting weekly with girlfriends for coffee in the evening, and attending a regular Pilates class. While she has been more active, she is still plagued by ongoing pain and discomfort and is physically drained at the end of each day.

3.0 Plaintiff’s present condition:

[25] While she initially suffered daily headaches, with pain around her eyes and above her eyebrows, she presently only suffers such headaches 1-2 times per week. She continues to suffer pain and tingling in her left arm, once every 1-2 weeks. While the shooting pains in her left leg have resolved, she continues to experience pain and tightness in her buttocks.

[26] However her most significant complaints concern her back, shoulders, and neck. She described the pain in her neck as a constant discomfort, rating the pain at 7-8 out of 10 on the worst days, and 1-2 out of 10 on the best days. On “bad days’, the neck pain is accompanied by mid to low back pain and headaches. Her shoulders are constantly tight and stiff, causing her to stretch throughout the day. While the overall pain levels have decreased over time and she has gained back some of her mobility, she continues to suffer stiffness and discomfort on an almost daily basis.

[27] Since the accident she has also found it difficult to drive or to be driven in a vehicle. Prior to the accident the plaintiff was a very active, social person, who enjoyed driving and often drove her friends to the many athletic and social events they attended. However, since the accident, she has developed what Dr. Lanius has diagnosed as a driving phobia. Initially she simply refused to drive. Her parents persisted in encouraging her to drive, restricting her route to the 4-5 blocks to her grandmother’s home in the nearby neighbourhood area. However, her retired father drove her most everywhere else, including work.

[28] Eventually, with her parents’ encouragement, she sought counselling through the bank’s Employee Assistance program. The assigned counsellor spent five sessions with her in an effort to assist her in gaining some insight regarding her underlying fears and to overcome her anxieties. While the counselling was helpful, she has still been left with a significant anxiety regarding driving.

[29] In January 2008, she consulted Dr. Ulrich Lanius, who diagnosed her as suffering from a driving phobia precipitated by the November 2004 accident. He has recommended ongoing counselling sessions to address the issue and expects that with some concerted treatment, her prognosis is positive for overcoming the phobia.

[30] In the interim her parents, husband, sister, and friends all explained that it is very difficult to ride with the plaintiff in a vehicle, whether she is a driver or passenger. She is hyper-vigilant, clenching the steering wheel, constantly checking the rear view mirror, and often screaming in rage at other drivers whose actions on the road, however benign, somehow threaten her sense of security.

4.0 Pre and Post-accident lifestyle:

[31] I accept that as a result of the accident and the injuries suffered, the plaintiff has undergone a significant change in her activities and lifestyle as well as a significant change in her outlook and attitude.

[32] Based on the evidence of her parents, sister and many friends who testified at trial, I am satisfied that prior to the accident the plaintiff was a very active, extroverted young woman. She competed on the high school volleyball team and was one of a handful of students selected for a gruelling RCMP Leadership program. In her university years, she continued to be an active athlete, engaged in skiing, rollerblading, whitewater rafting, hiking the Grouse Grind, and participating in multiple fitness classes on a weekly basis. She enjoyed partying, dancing, and was the “leader of the pack”, organizing her friends to push themselves harder to enjoy all facets of their busy lives.

[33] She participated fully in her home life, doing her full share of chores and often assisting her father with heavy projects, including building a fence around the property. She had no difficulty carrying a full university course load as well as working over 15 hours per week part-time at the bank, all the while filling her calendar with social and athletic events. Her mother described her as an independent self starter, “always on the go”, with a “to do list” filled with the many activities she pursued. She had a slim, athletic physique and enjoyed sharing and exchanging clothes with her friends.

[34] The injuries suffered in the accident have transformed the plaintiff into a very different young woman. She has gained a good deal of weight, growing from a size 6-7 to a size 14 in clothing. With the weight gain, her already ample bosom has also grown, resulting in a very top-heavy physique. Given her compromised neck and shoulder musculature, she has developed a relatively pronounced stooping and rounding of the shoulders. She has difficulty finding appropriate clothing.

[35] She no longer engages in any of her previous recreational athletics—skiing, hiking, white water rafting, rollerblading or fitness classes. While she has recently returned to moderate gym workouts and has begun a Pilates program, she no longer shares these activities with her friends who remain involved in more challenging athletic activities. More recently her social activities have expanded to include coffee evenings with girlfriends. She is plagued by her driving phobia and has become much more reclusive and home-based. Much of her free time is devoted to preparation work for her teaching duties.

[36] Rather than being an energetic self-starter, she is now a much more tentative, sedentary individual. She is careful to monitor any over- exertion so as to avoid triggering symptoms. She has not attempted any more challenging sport such as skiing or rollerblading, fearing a re-injury. Rather than being a happy-go-lucky optimist, she has become an anxious, temperamental, mercurial individual. Her family bemoaned the fact that it is often difficult to speak to her. She has little patience and her temper is quick to flare. She easily becomes frustrated and angry. As her mother put it, “her attitude towards the whole world has changed”. The relationship with both parents is now more fragile. Everyone must carefully gauge their words and actions around her for fear of triggering an argument.

[37] While the plaintiff and her husband struck me as a happy, committed married couple, they admitted they are both concerned the plaintiff may not be able to cope with the demands of having children and that their plans for a family may have to be put on hold. Since he often travels out of town on work, the plaintiff’s husband is concerned that she will find it difficult to cope without him in the home to support her with young children. Since she wishes to breast feed her children, she faces the prospect of an even heavier bosom exacerbating the strain on her neck and shoulder musculature and thus worsening her postural problems.

5.0 Expert evidence:

[38] Dr. Bertha Brisco has opined that the plaintiff has suffered a severe flexion–extension injury, causing a tearing of the deep muscles supporting her head as well as a jamming of the vertebral facets. In her opinion the torn muscles and ligaments have caused a shortening of the musculature, which the result that she has struggled to regain her pre-accident posture and stability. In Dr. Briscoe’s opinion the injuries have weakened her stabilizing musculoskeletal system (core muscles). Further, her upper body misalignment has been exacerbated by her larger breasts which have in turn tracted down on her neck and shoulders.

[39] Dr. Brisco is concerned that at some point in the future, the plaintiff may require breast reduction surgery to avoid the development of a thoracic kyphosis. Further, she is concerned that the plaintiff’s core muscles, which are already compromised, may lose additional strength and become relaxed during pregnancy, thus flattening the angle of the pelvis on the vertebral column and increasing the risk of a caesarean section. In her opinion, the increased weight of her breasts during breastfeeding will cause strain on the injured ligaments and muscles of her upper back, neck, and shoulder.

[40] In terms of a prognosis, Dr. Brisco has opined that the plaintiff will continue to have problems with her neck, back and shoulders unless she does body maintenance three to five times a week. She has recommended an intensive lifelong exercise program to prevent a thoracic kyphosis and to prevent osteoarthritis in her neck, back and sacroiliac joints, and hips.

[41] Dr. Randall Locht, an orthopaedic surgeon retained on behalf of the defence, examined the plaintiff on February 22, 2008. In cross examination, he admitted he accepted the plaintiff’s statement that she has consistently suffered pain since the accident. He accepted that she did not exhibit any “amplified pain behaviour”. He was satisfied, on a balance of probabilities, that she was truthful when she described her history of pain to him.

[42] While he accepted her stated history, he was unable to reach any definitive diagnosis other than to rule out a pathological physical condition. He assumed that she had either strained or sprained some musculature during the accident and thus described the injuries as “non-specific soft tissue injuries or musculoligamentous strains or sprains (structural impairments) to the neck/upper trunk and low back regions”. Other than knowing that she had been able to walk away from the accident, he had no knowledge concerning the intensity of the impact suffered during the accident.

[43] He admitted that he was aware of patients who have dysfunctional pain despite the fact they have no pathological physical condition. He also admitted he was also aware of patients who, despite early indications they will recover, in fact never do recover. He conceded that the plaintiff was indeed a patient who had suffered impairment and disabilities from the injuries suffered in the two accidents.

[44] At best, Dr. Locht was able to exclude certain diagnoses. He rejected Dr. Brisco’s suggestion that the plaintiff had suffered any neurological symptoms, in terms of any injury to the first cervical nerve. He further rejected Dr. Brisco’s suggestion that poor posture in itself might play a role in the development of osteoporosis.

[45] While he was unable to comment on Dr. Lanius’ diagnosis of a chronic pain disorder, he agreed that pain is often complicated by psychosocial issues and that psychological injuries prognosticate a poor recovery.

[46] He was unable to agree or disagree with Dr. Brisco’s opinion that the plaintiff’s breast size affected her posture and exposed her to a greater risk of thoracic kyphosis and lumbar lordosis. That said, on cross examination, he agreed with an article in the Aesthetic Plastic Surgery Journal that “larger breasts are generally associated with physical symptoms such as chronic neck, shoulder, and back pain, as well as stiff neck, painful brassiere strap grooving”.

[47] He was unable to comment on Dr. Brisco’s opinion regarding the effect of hormonal changes during pregnancy on the ligamentous support of the core muscles.

[48] While Dr. Locht could not provide any definitive prognosis for the plaintiff, he said he was nevertheless able to rule out the development of a future pathological condition (ie. arthritis or disc herniation). Thus he concluded it was unlikely the plaintiff would ever require any surgical intervention in future.

[49] While I do not doubt Dr. Locht’s qualifications as an orthopaedic surgeon, with all due respect to him, his focus seemed very narrowly directed to determining the presence of any pathological condition and/or the need for any surgical intervention. By contrast Dr. Brisco approached the matter in a much broader, holistic fashion, identifying the plaintiff’s limitations and what role her compromised musculature and larger breasts would play in the development of postural problems and future pregnancies.

[50] Overall I was very impressed with Dr. Brisco’s evidence. She has over 35 years of experience in a broad family practice, including a busy obstetrical practice, and she displayed a very strong knowledge of general anatomy and bony structures. Using diagrams, she was able to illustrate and explain the injuries suffered in a manner well beyond that exhibited by many physicians in a Courtroom setting.

[51] While defence counsel submitted that Dr. Brisco was an “advocate” who “over dramatized” the plaintiff’s symptoms, I was left with a very different impression. She struck me as a very concerned physician who, based on her lifelong relationship with the plaintiff, was acutely aware of the extent of her disabilities. She was particularly focused on encouraging her young patient to work to maintain proper posture and core muscle strength, with a view to avoiding the osteoporosis and resulting kyphosis which she believes affects many women. In my view, she neither exaggerated the plaintiff’s symptoms, nor over-estimated the physical challenges which lie ahead for her.

6.0 Non-pecuniary damages:

[52] On a review of the whole of the evidence, I find that the plaintiff did indeed suffer a severe flexion-extension injury, with acute symptoms lasting approximately one week, but continuing moderate symptoms which have persisted to today’s date, a full 4½ years post-accident. Her symptoms include not only pain and restriction of movement, but an overlap of psychological symptoms (pain disorder) including anxiety, irritability, frustration, anger, and difficulty modulating her behaviour in the face of day-to-day challenges. I accept Dr. Lanius’ evidence that there is some interplay of her physical and psychological symptoms. As he noted the pain activity triggers ongoing anxiety symptoms, while at the same time, the pain activity is worsened by the increased arousal pattern secondary to her anxiety. The pain and anxiety work together to create a vicious cycle.

[53] Based on the evidence of her husband, as well as her family and friends, as confirmed by Dr. Lanius, I also find the plaintiff developed a driving phobia following the first accident. While the phobia improved somewhat with counselling, the plaintiff remains highly anxious in a vehicle, whether as a driver or a passenger, and requires further assistance in coping with her symptoms.

[54] The plaintiff’s counsel has submitted that in a case where the plaintiff has suffered soft tissue injuries and has been left with significant chronic pain with psychological overlay the proper range of damages is from a low of $35,000 to a high of $100,000 (Unger v. Singh (2000 BCCA 94). Mr. LeBlanc submits that the case at bar falls in the upper end of that range. He submits the facts are not unlike those reviewed by the Courts in Prince-Wright v. Copeman (2005 BCSC 1306; Foran v. Nguyen et al. 2006 BCSC 605; Johnstone v. Canada (Attorney General) 2006 BCSC 1867; Harvey v. Yanko et al. 2007 BCSC 216; and Jackson v. Lai 2007 BCSC 1023.

[55] I have reviewed each of these authorities and in my view, each of those plaintiffs suffered more significant injuries.

[56] In Price-Wright, the plaintiff was left with significant residual soft tissue pain and spasms of the neck and upper back along with constant headaches as well as a full-blown post-traumatic stress disorder. Her ability to work as a consultant was severely curtailed on a permanent basis. Non-pecuniary damages of $100,000 were awarded.

[57] In Foran, a special-education assistant teacher suffered soft tissue injuries leaving her with permanent chronic pain in the neck and right side of her upper back as well as chronic headaches. She was constantly tired, could not enjoy an uninterrupted sleep, could not participate in recreational activities, and was unable to continue work at her second job as a respite worker. Damages of $90,000 were awarded.

[58] In Johnstone, the plaintiff suffered soft tissue injuries of the neck and back. He developed a full-blown post-traumatic stress disorder, chronic pain, and depression. These conditions all combined to markedly reduce his income earning potential. He discontinued the competitive cycling he had enjoyed pre-accident. Non-pecuniary damages were assessed at $100,000.

[59] In the case at bar, the plaintiff has suffered soft tissue injuries which have resulted in ongoing symptoms, in all likelihood aggravated by her pain disorder. She has suffered an almost complete reduction in all of her recreational activities and something close to a change of personality. That said, her prognosis is not entirely bleak. Assuming she follows a rigorous exercise program, her postural problems may be overcome and many of her symptoms will be managed. Ongoing counselling will in all likelihood address her driving phobia and many of her anxiety symptoms. Unlike the other cases referred to, she has been able to return to work full-time. While there may be future employment limitations (which I will address later in these reasons), to this point, her employment has fortunately not been significantly compromised. While this does not diminish the severity of her condition, it does not place her case in the upper end of the range of damages.

[60] By the same token, I reject the defence submission that the appropriate award of damages is $37,500, relying on such authorities as Love v. Lowden 2007 BCSC 1007; Krogh v. Swann 2005 BCSC 761; Haughain v. Kaufman 2006 BCSC 911; and Myers v. Long 2006 BCSC 1582. While all of these cases are premised on individuals who suffered chronic pain, none in my view suffered the extent of the physical injuries described by Ms. Pascoa, nor the dramatic personality changes she has undergone.

[61] While the submission is not entirely clear to me, it appears the defence has also submitted that since the plaintiff elected to bring this action under Rule 68 (the Expedited Litigation Project Rule)—the rule designed to allow for the efficient, expeditious litigation of claims not having a value in excess of $100,000—the Court ought to infer that this claim, including all heads of damage, does not exceed $100,000, thus resulting in a much reduced award for non-pecuniary damages.

[62] I am unaware of any authority which suggests the Court may draw such an inference. To the contrary, Rule 68(4) specifically provides that “(n)othing in this rule prevents a court from awarding damages to a plaintiff in an expedited action for an amount in excess of $100,000”. In this case, I understand that in the pre-trial management stage, the plaintiff sought an order allowing for the filing of two expert reports, with no defence objection. No defence motion was ever brought to remove the action from the Rule 68 procedure. I am unable to draw the inference suggested.

[63] On a review of all of the evidence, I assess her claim for non-pecuniary damages at $75,000.

7.0 Loss of Homemaking Capacity:

[64] Prior to the first accident, the plaintiff shared regular household tasks with her family, spending approximately 4 hours per week doing laundry, vacuuming, dusting, making dinner and engaging in general cleaning and yard work. Following the accident, she was unable to attend to any of these tasks. By the time she moved out of her parents home in September 2007, she had progressed to the point she was able to do 1-2 hours of housework per week. She was however largely unable to participate in any of the renovation work or heavy work landscaping the yard around her new home. Family members pitched in to help complete the job spending approximately 30-40 hours between them. At present, she is able to do certain household tasks, depending on her pain level that day. She and her husband attempt to share as many activities as possible, although he understands that on some days, any sharing is out of the question.

[65] The plaintiff calculates her loss of homemaking capacity claim, factoring in a gradual progression of increased ability to perform housework since the accident as follows:

Nov 8/04 – April 30/05	23 weeks x 4 hours = 92 hours lost
May 1/05 – Oct 30/05	24 weeks x 3 hours = 72 hours lost
Nov 1/05 – Oct 30/06	52 weeks x 2 hours = 104 hours lost
Nov 1/06 – Sept 30/07	44 weeks x 1 hour = 44 hours lost
TOTAL HOURS LOST:	312 hours x $12/hour = $3,744

[66] In addition, she claims damages in the sum of $8000 for a general loss of capacity from September 30, 2007 to the present, as well as a loss of efficiency into the foreseeable future.

[67] Thus, her claim for loss of homemaking capacity past and future totals $11,744.

[68] Relying on the decisions in Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 (B.C.C.A.); McTavish v. MacGillivray 2000 BCCA 164; Brisco v. Brisco 2002 BCSC 293, I accept that a plaintiff may receive compensation for loss of housekeeping capacity. In my view the evidence is clear that for some period following the accident the plaintiff was completely unable to participate in any housekeeping activities, leaving the load to be carried by her family members. While her condition improved somewhat, her parents continued to carry close to half the load until she moved into her own home. At present, while she manages with the help of her husband, her overall capacity to perform housework remains diminished. I accept the estimate of hours lost as well as the hourly rate to be reasonable. Thus I award $11,744 for loss of homemaking capacity.

8.0 Past Loss of Income:

[69] There is no dispute that the plaintiff was unable to work part-time as a Financial Services Manger at the Bank of Montreal from November 9, 2004 to November 25, 2004. At that point she applied for short-term disability benefits which she continued to receive until April 27, 2005. Overall she lost income over 12 pay periods. Given an average of 31 hours per pay period at a rate of $16.30 per hour, her loss totals $6,097,08. In addition, she lost a total of 34.25 hours over the Christmas season of 2004, resulting in a further loss of $561.36. Thus her total past income loss claim totals $6,658.44. I will award that sum as her past income loss.

9.0 Future loss of earning capacity:

[70] Adopting the factors set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), the plaintiff submits that while she has been able to work at her current teaching job and rarely takes time off work for her injuries, it takes all of her strength to do this. Her symptoms flare up when she is engaged in marking her students’ work, and particularly during report card time when she must spend long hours in front of the computer. It takes her longer to do this work because she is unable to do large portions of it at one sitting due to pain. Thus she begins her report card work some three weeks in advance of other teachers, so as to complete the task in time.

[71] Relying on the evidence of Dr. Lanius, Mr. LeBlanc submits that her ongoing pain activity is likely to interfere with her job duties from time to time, particularly in future when she is faced with additional life stressors, such working while also raising children of her own. While the current overall impact on her work functioning is relatively limited, he opined that her pain disorder may potentially have significant implications in terms of limiting any future advancement as a teacher or hampering any pursuit of a management positions, either as a principal or vice principal, which positions are inherently stressful.

[72] The defence submits that there is simply no evidence of any current difficulties at work which would suggest the plaintiff has been rendered less capable to do her work or less marketable to potential employers or that she has lost the ability to take advantage of all job opportunities which might otherwise have been available to her. Put shortly, the defence submits that the plaintiff has simply failed to prove this loss. In the absence of such evidence the defence submits the Court should not award damages for a loss of earning capacity or, at best, should award only a nominal sum.

[73] I agree with the plaintiff’s submission that while the plaintiff is indeed able to perform her work at this point with few significant difficulties, this is only by dint of expending the majority of her energy performing her professional duties. I agree that in the future, a combination of other life stressors and her job duties may exacerbate her pain activity. Further, I agree that overall she is now less likely to take on the additional stresses of a management position. There is the additional factor that she is very likely to undergo breast reduction surgery at some point in the future, which in itself will no doubt result in some further loss of time from work and some recuperative period.

[74] In all of these circumstances, I find that a fair award for her loss of future earning capacity is $40,000.

10.0 Cost of future care:

[75] Relying on the evidence of Dr. Lanius and Dr. Brisco, as well as the Cost of Future Care report prepared by Ms. Rutherford of Back in Motion Functional Assessments Inc., the plaintiff submits that the present value of the claim for future care costs totals $92,092, based on the following items:

– Reformer Pilates: $2,353 plus GST annually (twice weekly attendance);

– Yoga: $550-800 annually (attendance once weekly);

– Community Gym: $352 per annum (annual pass);

– Psychological treatment: once only 15-20 hours of psychological treatment, at a cost of $2,250-$3,000; and

– Physiotherapy: $260-$310 for first year (1-2 initial treatments plus 2-3 additional treatments during first year) and $100-$150 (in all subsequent years).

I should note here that while Ms. Rutherford’s report includes a costing for such items as massage therapy ($80 per hour) and chiropractic treatment ($60 per initial assessment and $40-$80 per treatment thereafter), these items have not been included in the $92,092 calculation.

[76] Assuming the plaintiff incurs the costs related to pilates and yoga classes, a community gym pass, as well as physiotherapy and 15-20 psychological treatment sessions, (but excluding ongoing massage or chiropractic treatments), her counsel submits the present value of her claims total $92,092 (see Report of Associated Economic Consultants Ltd. Exhibit 1, Tab 21, page 2). Mr. LeBlanc concedes however that these costs reflect optimal care and that it would be reasonable to allow $60,000 under this head of damages.

[77] I accept the defence submission that had the accident not occurred, the plaintiff, as an active, athletic woman, would likely have engaged in many activities (fitness classes, gym work) in any event, quite apart from a host of other athletic activities. However, it is notable that many of her pre-accident activities carried little or no costs (ie. Grouse Grind hikes and rollerblading) or involved simple drop-in fees at the local recreation center (ie. Fitness classes). Her present yoga classes and particularly the Pilates classes are a much more expensive proposition.

[78] Apart from the annual gym pass, I am not persuaded that the plaintiff would have incurred many of these costs, but for the accident.

[79] While I accept that the plaintiff would benefit greatly from a further 15-20 hours of psychological treatment, I am not persuaded that she will necessarily require ongoing physiotherapy, massage or chiropractic treatments throughout her life, nor with the frequency recommended. However as I have mentioned, the plaintiff’s calculation excludes ongoing massage and chiropractic treatments in any event.

[80] On a review of all of the evidence, I will award $50,000 for the present value of the plaintiff’s future care costs.

11.0 Special damages:

[81] There is no dispute that the plaintiff is entitled to special damages of $6,211.08 as particularized in the Amended Schedule of Special Damages (Exhibit 1, Tab 2). I award that amount as special damages.

12.0 Apportionment of Damages:

[82] I have no noted of any submission regarding an appropriate apportionment of damages as between the defendants. There is little dispute that the lion’s share of the injuries were suffered in the first accident, with only a temporary worsening of her symptoms following the second accident. That being the case, 95% of the total damages will be attributable to the defendant Xue, with the balance attributable to the defendant Supena.

13.0 Costs:

[83] Since I am unaware of the offers of settlement which may have been exchanged by the parties, I will leave it to the parties to resolve this issue between themselves. If counsel are unable to do so, I invite them to contact the Registry to arrange for an exchange of written submissions on the matter.

“The Honourable Madam Justice Boyd”

Citation:	*Pascoa v. Xue,*
	2008 BCSC 791