2008 BCSC 939 Schubert v. Knorr

Before: The Honourable Mr. Justice Singh

Reasons for Judgment

Counsel for plaintiff:	J. Barry Carter Danya Chaikel, Articled Student
Counsel for defendants:	G. Ginther
Date and Place of Trial/Hearing:	June 17-20 and June 23-26, 2008
	Kamloops, B.C.

[1] The plaintiff, Laura Schubert, claims damages for personal injuries she sustained in two motor vehicle accidents. Liability in both accidents has been admitted. This is an assessment of damages.

[2] The plaintiff alleges that her discomfort from the injuries sustained in the first accident had plateaued when she was involved in the second accident. The second accident exacerbated her condition and she now claims to suffer from serious physical and emotional injuries that constitute a permanent partial disability.

[3] The plaintiff was born on the April 21, 1985. She is now 23 years old. She was born and raised in Chase, British Columbia. Before the first accident the plaintiff was robust in health, energetic and goal-driven. At school, she participated in track and field, basketball and volleyball through her physical education classes. During the summer she went boating, tubing and wake-boarding and in the winter engaged in snowboarding and cross-country skiing.

First Accident – December 6, 1998

[4] Initially the plan was to go to Sun Peaks, but because it had been snowing the plaintiff, together with the defendant Kevin Knorr and two other friends, Ben Drury and Tandi Jordan, decided to go snowmobiling at the Adams River Reserve. The defendant Kevin Knorr was the driver of his pick-up truck and was the only one with his seatbelt on. The plaintiff sat next to the defendant and next to her was Ben Drury and near the passenger door was Tandi Jordan. The pick-up truck had a bench seat. There were lap and shoulder seat belts for the driver and the passenger and a third lap seatbelt for a passenger.

[5] Wintery road conditions prevailed. Travelling west on Shuswap Lake Road the truck entered a right hand turn, lost control, fishtailed, crossed to the opposite side and rolled once or more over an embankment and came to a rest on its roof.

[6] The plaintiff got out of the truck through the rear window. She was in a state of shock. She was numb on the left side of her body from her neck down to her toes. She was taken by ambulance to the Chase Diagnostic Centre where X-rays were taken, cuts to her face and hands were cleaned and her fractured left clavicle was put in a sling. Subsequently she suffered from constant headaches, sore neck, shoulders and back and she had great difficulty in sleeping. A few days later she saw her family doctor, Dr. Vagyi, who replaced the shoulder sling with an adjustable brace that went over both shoulders, and which she was required to wear 24 hours a day for a few months.

[7] The plaintiff continued to suffer from pain in her neck, shoulders, mid and lower back and constant headaches. She had great difficulty in sitting, standing, walking and sleeping. Her main complaint was with respect to a dull headache at the back of her head that persisted each and every day and if her back was really sore it would trigger the pain in the neck and shoulder and intensify the headaches.

[8] She attended at Lower Shuswap Physiotherapy Services where she was taught how to move and was given stretching exercises. She tried home exercises daily. The physiotherapy and home exercises brought temporary relief. She continued to have uncomfortable, disturbed sleep and pain, especially on her left side.

[9] Because the physiotherapy was not helpful she did some internet research and decided to take chiropractic treatments. In 2001 she began seeing Dr. Quinn, whom she saw on and off until 2006. She also took massage therapy.

[10] All of these treatments only gave her temporary relief.

[11] She tried snowboarding and wakeboarding but was left with intense pain and discomfort.

[12] Despite taking all of these various treatment modalities and despite the assurance of her doctor that because of her young age she would bounce back, she found that the pain in the neck, shoulders and back and her constant numbing, dull headaches had plateaued. Any activity such as sitting, standing, walking, bending or reaching intensified the pain. She experienced the same difficulty while attending the Thompson River University and at her work. She has been left with a slight bump on her left clavicle area and crepitus in the left shoulder. She experiences pain and discomfort on the left side especially during her sleep.

Second Accident – August 15, 2004

[13] On this day the plaintiff visited her sister Vanessa in Scotch Creek. They spent the day at the beach and then in the evening attended at the local pub. The defendant Taryn Jones was the designated driver. On their return to Vanessa’s, Taryn Jones was driving her Dodge Neon. The plaintiff was seated in the left rear seat behind Taryn Jones. Kyle Neely was the front seat passenger. Vanessa was in the middle of the rear seat and Mandy Pozzobon was the right rear passenger.

[14] The defendant Van der Walle approached the Neon at great speed around the corner and T-boned the vehicle in which the plaintiff was a rear passenger and which had almost come to a complete stop. The Neon was pushed backward by the impact and its air bags deployed.

[15] Taryn Jones, thinking the car was on fire, jumped out and urged all of the others to get out of the car. The plaintiff got out. Her clothes were covered in blood. The plaintiff sustained a deep cut that stretched from her hairline and at least three inches back over the skull.

[16] She was taken by ambulance to the Chase Diagnostic Centre and from there to the Kamloops Hospital where x-rays were taken and her cut sutured. The second accident aggravated her plateaued condition from the first accident. Her dull headaches intensified. She had increased pain around the areas of the head, neck and back.

[17] She saw her family doctor once or twice a week and she also received chiropractic treatments.

[18] At the time she was working for the Village of Chase in the parks program but did not return to work after the accident.

[19] She has been left with a scar that is somewhat hidden by her hair and is thus not noticeable but the plaintiff is aware of that scar as she is aware of the bump over her left shoulder area which causes her embarrassment.

[20] The plaintiff maintains that after the second accident her condition has reverted to her plateaued condition that she experienced as a result of the first accident. The plaintiff was also involved in a single car accident on October 22, 2005. She was operating her vehicle and lost control of it on her way to work at the Aberdeen Mall in Kamloops, British Columbia.

[21] She was taken by ambulance to the hospital where x-rays were taken. She was really sore and stiff and ached everywhere. That lasted a week or two. She spent the first week in bed unable to move. Her condition then plateaued again.

The Plaintiff’s Lay Witnesses

Betty Jackson – plaintiff’s mother

[22] Betty Jackson is the mother of the plaintiff. She testified that before the first accident the plaintiff had no health issues. She was not involved in any accidents, she enjoyed perfect health, was active enjoying water sports, baseball and track and field. The plaintiff was a well adjusted, happy child. She said that after the first accident, the plaintiff was obliged to wear a shoulder brace day and night for two months. She was constantly in pain in the neck, the back and the collar bone. She said the plaintiff suffers from mood changes and is now constantly sitting rather than moving about. She tried cross-country skiing a few times, has not done any snowboarding, did not do any team sports, and she is not involved in any recreation activities. She tried physiotherapy a couple of times a week but this just provided short-lived relief. Because of the pain in her back and left shoulder she is unable to enjoy a full night’s sleep.

[23] Since she was 12 or 13 years old, the plaintiff wanted to be an interior designer. When at the Art Institute of Vancouver she complained that her back and head were bothering her quite a bit. As recommended by the doctor she purchased an infrared sauna and also a new bed and mattress that she thought might help. Despite all of the various types of treatments that she has received, including home exercises and yoga, she has only experienced brief, temporary relief. She suffers muscle pain and headaches on a daily basis.

[24] The plaintiff told her her future plans were to open a shoe store or a furniture store in Vancouver. While living with her mother, the plaintiff cleans her own bathroom and bedroom but does no other household chores.

Mandy Pozzobon – plaintiff’s friend

[25] Ms. Pozzobon is the plaintiff’s friend since elementary school. She testified as to the plaintiff’s complaints after the first accident but prior to the second accident. She said the plaintiff was depressed by the weight of all her injuries and their effect on her life.

Garnet Corneil – plaintiff’s boyfriend

[26] Mr. Corneil is a certified personal trainer and has obtained a diploma in business management. He met the plaintiff in the summer of 2005 and lived with the plaintiff in Kamloops for about two years. When the plaintiff moved to Vancouver to attend the Art Institute he also moved there and lived with her for about a month and moved out because the apartment was too small. He then moved back in with her in February 2007 and moved to Victoria in May 2007.

[27] He said that the plaintiff complained daily of headaches and back pain. He tried to get her to go to the gym but she found it made her too sore and preferred to go walking. She then quit the gym. He recalled her only activity being a half-hour slow walk. He did all of the housework, the vacuuming, the preparation of meals, cleaning, washing and dusting.

Jackie Blueschka – plaintiff’s supervisor

[28] Ms. Blueschka was the plaintiff’s supervisor at Shuswap Grocery. She described the plaintiff as a confident, reliable and competent employee. Ms. Blueschka first became aware of the plaintiff’s symptoms when she noticed her “wincing” and heard her complain of a headache. Ms. Blueschka testified that she tried to help the plaintiff by taking over some of her duties, including the cashier job, which required standing on a concrete floor.

Vickie Brears – plaintiff’s co-worker

[29] Ms. Brears was the plaintiff’s co-worker in the dining room at the Quaaout Lodge. She testified that she and the plaintiff compared their aches and pains and helped each other. The plaintiff worked full-time, five days a week. Ms. Brears testified that the summers were very busy in the dining room. There were only two servers on duty, and they ran all day and if lucky managed to get a five-minute break. Ms. Brears testified that she was very upset when the plaintiff left her employment at the Quaaout Lodge as she was “just the best employee”.

Sven Berkner – plaintiff’s manager

[30] Mr. Berkner was the dining room manager at the Quaaout Lodge. He testified that he started working there in July 2004 and he hired the plaintiff within a few months, to work during the theatre season that commenced in the fall of 2004. He said that the plaintiff was a server, a job that requires a lot of movement. She worked full-time and part-time. She complained of headaches and back problems. On some days, she was hunched over and had obvious signs of pain on her face. Mr. Berkner sometimes sent the plaintiff home after three hours of work.

The Defence’s Lay Witnesses

Bill Kennedy – plaintiff’s employer

[31] Mr. Kennedy was the plaintiff’s employer at Shuswap Grocery, where she began working at age 15, mostly in the evenings as a cashier. She also stocked merchandise on the shelves. Mr. Kennedy was unable to produce any employment records, as they were destroyed in a fire at his store. He testified that he had no recollection of any limitations the plaintiff may have had. He knew she had been involved in an accident. At some point he provided anti-fatigue mats for the cashiers at the suggestion of an employee. Mr. Kennedy testified that the plaintiff quit working for him after a dispute. He described her as a good employee for the most part.

Evely Isley – plaintiff’s employer

[32] Ms. Isley owned the Shuswap Parks Store in 2003. She produced employment records at trial. She specifically recalled the plaintiff as the plaintiff’s two sisters had also worked at the store. The plaintiff was paid $8.50 per hour and received a raise to $9.50 per hour after three months. She worked eight- to nine-hour shifts at the take-out area of the store, and was also trained as the spare cook, a job she performed two days a week. The plaintiff was responsible for cleaning up at the close of business, which involved sweeping and mopping the floor. At this job, the plaintiff earned a total of $4,690.92. Ms. Isley described the plaintiff as a good worker, with no problems. The plaintiff left this job on August 25, 2003 to go back to school. She did not reapply for a job, but if she had, Ms. Isley would have hired her again.

Suzanne Depper – plaintiff’s supervisor

[33] Ms. Depper is the administrative assistant for the Village of Chase. The plaintiff worked for the Village in the summer camp, entertaining the kids in the wading pool, swimming and raising funds. The plaintiff worked Mondays through Fridays, 8:00 a.m. to 4:00 p.m. earning $8.50 per hour from the end of June 2004 to August 14, 2004 when she left because of the second accident.

[34] Ms. Depper testified that she was not aware of any physical limitations or any problems the plaintiff experienced while she was on the job.

Leigh Bentz – plaintiff’s manager

[35] Mr. Bentz was the general manager of the Cactus Club from March 2006 until March 2007. He hired the plaintiff as a hostess as all new employees start at this post. The plaintiff was employed on the evening shift part-time for three to four shifts a week from 5:00 p.m. to 11:00 p.m. with a 15-minute break. There is a three-month probationary period. He said as a hostess the wages were $10.00 per hour plus $1.25 per hour as the tip rate. He said 70% of the staff were students and the students were accommodated with respect to their scheduling. He had no complaints about the plaintiff. In December 2006, the plaintiff gave two weeks’ notice as she was leaving Vancouver for Kamloops. She did not say that she was leaving because she had another job as a server.

Seng Sengsavahn – academic director

[36] Mr. Sengsavahn is the academic director of the Art Institute of Vancouver. He said the plaintiff was a student in the interior design program having started in October 2006. He said the Institute has an in-house counsellor who works with students to accommodate their illnesses or disabilities.

[37] The Institute attendance policy was that a student who missed five hours would be put on probation, and a student who missed ten hours would be in danger of failing the program. Mr. Sengsavahn said the program advisor usually informs the students with respect to the attendance requirements. Students may also be required to withdraw if they do not meet the minimum GPA requirements; they can appeal and get a second and final chance. If a student falls behind because he or she started late or missed classes, then the student is recommended to take extra tutoring without charge. Similarly extensions are given to complete assignments.

[38] Mr. Sengsavahn confirmed that he filled out the withdrawal form when the plaintiff withdrew on February 28, 2007, giving the reason for her withdrawal as “loss of motivation”. At that time she had two or three weeks to go before she completed her first quarter. Even though she withdrew, the plaintiff could apply for readmission and resume and complete the courses.

The Plaintiff’s Educational and Employment History

[39] The plaintiff’s educational and employment history has some relevance to her past wage loss and the other heads of damages.

[40] The plaintiff was 13 years old and in grade 8 when the first accident occurred in 1998. After she completed high school, she then attended Thompson River University in Kamloops pursuing a diploma in fine arts.

[41] From the age of about 12 she always had a strong desire to become an interior designer. In September 2006, she enrolled at the Art Institute in Vancouver to pursue a two-year degree in interior designing. Tuition cost $5,000 each semester and $300 per month per course. She quit the Art Institute on February 28, 2007. I accept the evidence suggesting that the reason she quit the course was “lack of motivation”. This was noted by the Art Institute during a phone call from the plaintiff, although the plaintiff does not recall telling them this. She did not avail herself of the benefits of the counselling and accommodation offered by the Art Institute of Vancouver, nor did she seek the advice of any of her caregivers including the vocational and rehabilitation therapists she saw.

[42] Even though she saw Dr. Hershler on February 1, 2007, Dr. Wallace on the February 22, 2007 and Tracy Dobbin on January 29, 2007, the plaintiff did not indicate that she was going to quit the courses at the Vancouver Art Institute because she found the nature of the work and the pain unbearable.

[43] The plaintiff’s employment history is as follows. She turned 15 in 2000 and worked part-time and, at times, full-time from 2000 until 2003 at Shuswap Grocery in Chase. From April 2003 to June 2003, she worked part-time at the Parks Store in Chase. In July and August 2003, she worked there full-time. In the fall of 2003, she moved to Kamloops and attended Thompson Rivers University full-time until April 2004. She was not employed during this period.

[44] From May to August 2004, the plaintiff moved back to her parents’ house in Chase and worked for the Village of Chase. She continued living with her parents in the fall, while resuming full-time studies at Thompson River University in September 2004. Her resume shows that she was employed at the Quaaout Lodge starting in September 2004. However, she says she did not start working there until January 2005, when she began working part-time as a server in the dining room. She continued attending Thompson River University until April 2005. From May to August 2005, she lived in Chase and worked at the Quaaout Lodge full-time.

[45] The plaintiff returned to Kamloops in September 2005, resuming her studies at Thompson River University part-time and living with Garnet Corneil. From September to December 2005, she worked full-time at the Mariposa store in Kamloops. She continued to attend Thompson River University part-time and to live with Garnet Corneil from January to April 2006, while she worked at Fogg N Suds part time. From May 2006 to July 2006, she worked at Fogg N Suds full time.

[46] In September 2006, the plaintiff moved to Vancouver to attend the Art Institute full-time. She began working part-time at the Cactus Club in October 2006 and continued to work there until December 2006. She lived with her sister during this time.

[47] In January 2007, the plaintiff moved in with Garnet Corneil and worked part-time at the Library Square Public House. She quit the Art Institute at the end of February 2007, and continued to work at the Library Square Public house full-time. She moved back to her parents’ house in Chase in June 2007 and has resided there ever since, not being employed or in school.

The Plaintiff’s Medical History

Dr. Vagyi – plaintiff’s family doctor

[48] Dr. Vagyi was the plaintiff’s family doctor. He has since retired and did not file any reports nor did he testify at trial. Some limited evidence, consisting of CL19 forms submitted to ICBC on December 23, 1998 and August 2, 2000, and some of the plaintiff’s clinical records, was submitted at trial.

[49] On the CL19 form filed on December 23, 1998, Dr. Vagyi noted that the plaintiff complained of headaches, neck pain, pain at site of left clavicle fracture, pain in neck and in mid and lower back. He noted that in the accident, the plaintiff suffered a fractured left clavicle, contusions to the left forehead with haematoma, contusion to the left hand, and soft tissue injuries to the neck, mid and lower back. The plaintiff was treated with a splint for her fractured clavicle (later changed to a shoulder brace) and Tylenol for the pain. Dr. Vagyi noted that the plaintiff “should have an uneventful recovery”.

[50] On the CL19 form filed on August 2, 2000, Dr. Vagyi noted that the plaintiff had three x-rays to her neck and back, all with normal results. He noted that the plaintiff was not unable to perform daily activities and was not unable to work due to accident-related injuries. He noted that on her initial examination, it was difficult to assess her because of her broken left collar bone, and later on she showed signs and symptoms of neck and low back strain. He noted “no treatment” at that time, and noted that at this point, nearly two years after the first accident, the plaintiff’s clavicle had healed nicely, but she was still bothered by back and neck pain on occasion.

[51] Dr. Vagyi noted headaches on the CL19 form dated December 23, 1998, but not on the CL19 form dated August 2, 2000. In his clinical records, he noted on March 13, 1999 that the plaintiff reported “occasional occipital headaches, neck tightness” and on May 1, 1999, “headaches, neck pain, L scapular and L shoulder pain cont”. On June 10, 1999, Dr. Vagyi noted “Now she can sleep on her side”. On July 27, 1999, he noted “Her neck & shoulder ok”. On August 21, 1999, he noted “Can sleep ok”. However, on November 6, 1999, he noted “Unable to sleep on her L side” and on February 12, 2000, he noted “when sleeping on L side pain in her left shoulder wakes her up … to change position”. On June 3, 2001, he noted “can’t sleep on left side”. Dr. Vagyi’s notes dated June 30, 2001 to September 21, 2002 make no reference to symptoms arising from the first accident.

[52] Dr. Vagyi also treated the plaintiff following the second accident. However, no clinical records or medical reports were tendered in evidence. A review of the plaintiff’s MSP claims show that Dr. Vagyi billed MSP for the plaintiff’s visits on 14 occasions between August 15, 2004 and his retirement on December 15, 2004.

Dr. Navratil – internal medicine and rheumatology specialist

[53] Dr. Navratil is a specialist in internal medicine and rheumatology who saw the plaintiff on referral from Dr. Vagyi. His reports are in evidence, but he was not cross-examined on them. On June 30, 1999 (six months after the first accident), he noted the plaintiff’s chief complaint as “pain in back and neck”. He also noted “she had frequent generalized tension-like headaches but those subsided by now”. He noted that the plaintiff had chronic myofascial pain in her neck, mid back and lower back, which had substantially improved. He recommended that she resume all activities as tolerated without any restrictions.

[54] On June 19, 2001, two-and-a-half years after the first accident, Dr. Navratil saw the plaintiff again. He noted her chief complaint as “pain in left upper back, left clavicle, back along spine from C-spine down to low back”. The plaintiff complained of aggravated pain in her left upper back, left clavicle and shoulder due to employment in the grocery store, as well as inability to sleep on her left side. On physical examination of the plaintiff, Dr. Navratil noted some restriction in movement of the left shoulder and tenderness on palpation of multiple trigger points in the plaintiff’s upper back, mid back and low back, worse on the left side. He recommended a CT scan to rule out a disc prolapse, and recommended that the plaintiff see an orthopaedic surgeon for the worsened pain in the plaintiff’s left clavicle area. There is no evidence that a referral was ever made, although the plaintiff did see an orthopaedic surgeon at the request of the defence after the second accident.

Dr. Oliver – orthopaedic surgeon

[55] Dr. Oliver saw the plaintiff on March 3, 2005, after the second accident and before the third accident. He diagnosed a closed fracture of the left clavicle, a contusion to the left forehead, a contusion to the left hand, and a strain to the soft tissues in the region of the back of the neck and the middle and lower back resulting from the first accident.

[56] He noted a laceration to the left side of the scalp and a strain to the soft tissues in the back of the neck and lower back following the second accident. Dr. Oliver noted that the plaintiff did not take very many medications as she felt that her pain tolerance was high.

[57] Dr. Oliver opined that the plaintiff’s symptoms at that time were due to soft tissue irritability and the effects of deconditioning. He recommended a daily exercise program involving stretching and strengthening. Dr. Oliver did not believe that chiropractic or physiotherapy treatments were indicated in the plaintiff’s treatment.

Dr. Hershler, physical medicine and rehabilitation specialist

[58] Dr. Hershler saw the plaintiff on February 1, 2007 and prepared a medical/legal opinion. Dr. Hershler has impressive credentials and a wide knowledge in his field of physical medicine, chronic pain management and rehabilitation. He noted that the plaintiff complained of ongoing, daily headaches since the 1998 accident, which worsened with “prolonged sitting in an unsupported fashion or with prolonged physical activity (i.e. use of her arms and upper body)”. She also had “constant muscle tightness in her neck and shoulders, and this causes pain that she describes as an intense tightness down her spine”. The plaintiff’s sleep patterns were also chronically interrupted either by headaches, pain or tightness in her back.

[59] Dr. Hershler noted that the plaintiff’s headaches intensified for a number of months after the second accident, and that she suffered more pain in the low back, radiating into both legs. He noted that in spite of her symptoms, the plaintiff had completed school and worked at a restaurant, did not take regular medications, and was not clinically depressed, although “the pain and headaches affect[ed] her mood at times”.

[60] Dr. Hershler noted that the plaintiff reported no permanent relief from physiotherapy, massage therapy, regular chiropractic treatments, and intramuscular stimulation. He recommended that the plaintiff seek alternative strategies to strengthen her ligaments and muscles, such as infrared heat therapy and pulsed electromagnetic field therapy.

[61] Dr. Hershler noted that the plaintiff’s prognosis for a complete recovery from her headaches, pain and tightness was “extremely guarded”. He said it was likely that her symptoms are permanent and while “she clearly has the pain tolerance to study and even work, the symptoms will ultimately affect her efficiency and productivity, and will also affect her enjoyment of life”.

Dr. Gordon Wallace – vocational rehabilitation consultant

[62] Dr. Wallace is a registered psychologist, primarily counselling in the fields of vocation and rehabilitation. He performed a vocational assessment of the plaintiff on February 22, 2007. During this five-hour assessment session, not including a half-hour lunch break, the plaintiff reported experiencing pain and discomfort, which increased during the session. There was no evidence that would suggest lack of motivation or motivation to perform poorly played a role in producing the results.

[63] The plaintiff performed within the average range on nonverbal intellectual abilities; below average on her academic skills, particularly her vocabulary skills; below average on the general learning ability, verbal aptitude and numerical aptitude tests; above average on spatial perception and form perception; and average on clerical perception, motor coordination, finger dexterity and manual dexterity.

[64] The plaintiff expressed an interest in working in artistic, social, enterprising and realistic occupations. The plaintiff showed a minimal level of depressed mood.

[65] He opined that because of the plaintiff’s young age at the time of the first accident, it is not possible to know exactly what her future career path would have been. Her weak academic skills indicated to Dr. Wallace that she might have experienced a longstanding learning difficulty, which would point towards artistic and technical fields, rather than language-based courses of study.

[66] Upon reviewing Dr. Laidlow’s, Dr. Hershler’s and Ms. Dobbin’s opinions regarding the plaintiff’s physical capabilities and prognosis, Dr. Wallace opined that the plaintiff’s residual employability potential had significantly decreased as a result of the injuries she suffered in the accidents. He commented that interior design was a reasonable occupational option in light of the plaintiff’s skills and limitations, and an ergonomic assessment could address the physical concerns with using a drafting table. He noted that:

[t]his type of occupational option represents one of the best residual positions for her. The Interior Design field also makes good use of her stronger perceptual skills rather than relying upon more academic oriented ones which have proven difficult for her.

[67] Dr. Wallace prepared an additional report on March 8, 2007, upon learning of the plaintiff’s withdrawal from the interior design course at the Art Institute. He opined that interior design seemed like an excellent career choice for the plaintiff. He remarked upon the plaintiff’s new interest in a career in photography, and said that from a rehabilitation psychology perspective, a career in photography would not likely be any better for the plaintiff than an interior design one, and would likely be more difficult and more poorly paid. Dr. Wallace recommended a Social Service Worker program or a Display and Design program, both offered at Langara College. He also recommended vocational counselling which would allow the plaintiff to fully explore her occupational options.

Dr. Laidlow – physical medicine and rehabilitation specialist

[68] The defendants had the plaintiff independently medically examined by Dr. Laidlow who specializes in the field of physical medicine and rehabilitation. He saw the plaintiff on August 18, 2006. He reviewed the plaintiff’s hospital records from August 15, 2004 (the second accident) and October 22, 2005 (the third accident). His assessment took five to six hours overall.

[69] His physical examination of the plaintiff showed reduced neck extension, tightness in the upper shoulder girdle and tenderness to direct palpation of the paraspinal musculature of the neck, mid back and lower back. Dr. Laidlow noted a scar resulting from a laceration of the plaintiff’s left upper forehead in the second accident, as well as aggravation of her pre-existing neck and lower back strain injuries, but no additional damage.

[70] He discussed with her the work of an interior designer that would involve designing, drafting and drawing. He found that she would be able to manage her own activities around the house apart from heavy vacuuming which would cause her some discomfort.

[71] Dr. Laidlow recommended a gym program emphasizing flexibility rather than strengthening. He opined that the plaintiff would be prone to ongoing discomfort in the neck and upper shoulder area, but did not feel the injuries would worsen with time; they could possibly improve. The plaintiff would not harm herself by being active, and was fully capable of managing her own affairs and activities around her home. He opined that she should be able to manage the work of an interior designer.

Tracey Dobbin – occupational therapist

[72] Ms. Dobbin works for OT Consulting/Treatment Services Ltd. On January 29, 2007, she performed a Physical Capacity Evaluation, testing the plaintiff’s physical strengths and limitations with a view to employability. Ms. Dobbin submitted a Full Capacity Evaluation Report dated February 12, 2007.

[73] Built into this evaluation was a “behavioural and consistency of effort profile”, which aimed to determine whether the plaintiff was making a full physical effort and therefore whether the test results could be relied upon. Ms. Dobbin opined that Ms. Schubert made a consistent and full effort, and therefore the test results could be relied upon. The plaintiff participated in a full day of testing, consisting of activities such as sitting, standing, crouching, kneeling and pushing and pulling, over of a period of six hours and five minutes, with a 40-minute break for lunch.

[74] The test showed that the plaintiff is employable on a part-time or full-time basis. The plaintiff showed no limitations with walking, crouching/kneeling, balancing on raised, narrow and/or uneven surfaces, climbing, handling, and performing limited strength work. However, she has some difficulties with performing work tasks, activities of daily living and recreational or leisure activities. In particular, the plaintiff has difficulty sitting for prolonged periods and with reaching with her arms extended for prolonged periods, when working at a drafting table. She also demonstrated difficulty with repeated bending and stooping, static standing for longer than 20 minutes, reaching below shoulder level for longer than 20 minutes, and heavy strength work (handling loads of over 44 pounds).

[75] In her work as a food and beverage server, the plaintiff reported increased pain after every work shift, particularly with “high-paced” shifts. The plaintiff reported her daily pain as ranging between levels three and five over the course of the day, and levels two to seven over the course of the previous month, with zero being no pain, three being moderate pain for which she would take a break, five being strong pain for which she would go home from work, seven being strong pain for which she would seek medical attention, and ten being maximal pain.

[76] Ms. Dobbin opined that the plaintiff did not meet the full strength demands of a job as a food and beverage server (a job the plaintiff was performing at the time of the evaluation, suffering increased pain after every work shift). She also opined that the plaintiff’s ability to meet the full demands of a career as an interior designer was restricted.

[77] Ms. Dobbin again interviewed the plaintiff, this time at her home for two-and-a-half hours and prepared a cost of future care analysis for plaintiff’s counsel on May 11, 2007. The purpose of this analysis was to determine the residual effects of the plaintiff’s injuries on her current and future ability to function independently in everyday life activities. Unfortunately, Ms. Dobbin did not have nor review the reports of Drs. Oliver, Hershler, Wallace and Laidlow.

[78] Ms. Dobbin identified the following limitations affecting the plaintiff due to her pain: reduced sleep; reduced ability to perform homemaking activities; reduced ability to perform home and yard maintenance tasks; reduce ability to fulfill future parenting tasks; reduced ability to participate in educational pursuits; reduced ability to work; and reduced ability to participate in leisure activities.

[79] The services, equipment and supplies recommended by Ms. Dobbin are intended to restore the plaintiff’s level of independence to that she experienced pre-injury. Ms. Dobbin made these recommendations on the premise that the plaintiff’s prognosis for recovery is guarded. Ms. Dobbin recommended the following services:

· an exercise program consisting of:

o physiotherapy, particularly an assessment and advice in developing an appropriate exercise program, at a cost of $200, and follow-up visits, at an annual cost of $128; and

o kinesiology, particularly assistance in implementing the new exercise program and ongoing monitoring, at an initial cost of $1,200 to $1,950, with subsequent years at $240 to $780; and

o a gymnasium pass, estimated to cost between $400 and $600 annually, plus GST.

· chiropractic treatments for pain relief, at an annual cost of $480 to $960.

· homemaking assistance with heavier cleaning tasks, for two hours per week, at an annual cost of $2,002 to $2,236 plus GST, increasing to three to four hours per week once she has children, at an annual cost of $3,003 to $4,472, plus additional seasonal heavy cleaning assistance twice a year, at an annual cost of $308 to $344 plus GST.

· grocery delivery, at an annual cost of $520 to $1,040, once the plaintiff moves out of her parents’ house.

· childcare assistance for her future, and at this time hypothetical, two or three children, at an annual cost of $10,227 to $13,149 plus GST, plus a placement fee of $650 to $1,000 plus GST, for a live-out nanny.

· home and yard maintenance for her future, and at this time hypothetical, single dwelling house, at an annual cost of $455 to $637.

· vocational services, including:

o vocational counselling to assist the plaintiff in identifying suitable employment options, at a one-time cost of $500 to $1,600; and

o job placement assistance, at a cost ranging from $1,800 to $4,000.

· ergonomic assessment in the event the plaintiff returns to school or works in a position that requires her to sit and reach, at a cost of $100 to $200 plus travel expenses, and another $200 to $600 for follow-up assessments.

· case management by an occupational therapist to coordinate and monitor the additional services and equipment the plaintiff might require, at a cost of $2,088 plus travel costs.

[80] Ms. Dobbin recommended the following equipment:

· an infra-red sauna for pain relief, at a cost of $4,000 to $6,000, with a replacement in seven or eight years’ time;

· a better mattress, as at the time of Ms. Dobbin’s interview, the plaintiff was sleeping on a futon mattress. One-time cost is estimated to be $699 to $2,300 plus tax;

· a cervical pillow at approximately $55 plus tax, to be replaced every five years;

· a sit/stand stool, at a cost of $149.93 to $170 plus tax, to be replaced every 15 years;

· a food processor to assist with chopping and cutting for meal preparation, at a cost of $120 to $350 plus tax, to be replaced every seven-and-a-half years; and

· a lightweight vacuum cleaner for regular spot vacuuming, at $60 to $100 plus tax, to be replaced every seven-and-a-half years.

[81] Ms. Dobbin also accounted for the plaintiff’s medication supplies. At the time of the interview, the plaintiff was taking Advil for pain relief and Robaxacet for muscle relaxation. The average annual cost of these two medications was $242.16 to $368.88, plus GST. In addition, there may be prescription medications the plaintiff has to take for her pain, but the cost of these medications would vary based on the plaintiff’s age and annual income under the BC Pharmacare program.

Dr. Quinn – chiropractor

[82] The plaintiff began seeing Dr. Quinn, a chiropractor, three years after the first accident, in December 2001. Dr. Quinn did not testify. His clinical records were tendered in evidence as evidence of treatment and that statements were made, but not for the truth of the statements, nor as opinion evidence.

[83] In his medical records, Dr. Quinn noted on the initial visit that the plaintiff experienced mild headaches two to three times per week. In the Confidential Patient History filled out by the plaintiff, in response to the question “Do you suffer from headaches?”, she wrote “yes sometimes”. The plaintiff saw Dr. Quinn less than once a month in 2002, 2003 and 2004, with no visits during the summer months in 2002 and 2003 or in the months of October and November 2003. There were occasional notes suggesting that the plaintiff was asymptomatic.

Judy Sturgeon - physiotherapist

[84] Ms. Sturgeon saw the plaintiff regularly between September 2004 and July 2005. She recommended intramuscular stimulation (IMS) treatments in March 2005. These treatments entail injections at various sites, somewhat akin to acupuncture, that promotes the circulation of the blood in the affected muscles. The plaintiff found these treatments painful and nauseating.

[85] Ms. Sturgeon’s clinical records were submitted, although Ms. Sturgeon did not testify at trial.

[86] In her notes of May 4, 2005, Ms. Sturgeon noted that the plaintiff’s low back pain was easing, and she was able to work an eight-hour shift without her back aching; however, the plaintiff still experienced constant low grade headaches which increased at work. At trial, the plaintiff was unable to remember having told this to Ms. Sturgeon.

[87] In her notes of July 7, 2005, Ms. Sturgeon noted that the last prescription helped, and that the plaintiff had only had low grade headaches despite nine-hour shifts at work, waitressing with no breaks.

[88] The plaintiff also went to the gym for a couple of months, where she had the benefit of a personal trainer and the use of the equipment over half-hour sessions together with 15 to 20 minutes of cardiovascular exercise. She found the gym unhelpful.

[89] When she relocated to Kamloops, the plaintiff met Garnet Corneil, who is a certified personal trainer. He attended Gold’s Gym in Kamloops five times a week and he tried to get the plaintiff to come with him. She attended the gym a couple of times but her back was too sore and she preferred going on walks and quit the gym. As the plaintiff felt that the gym was making her condition worse, she stopped going and decided to do her own exercises at home.

Damages

[90] The plaintiff says that there is not a single aspect of her life that has not been affected by the pain and discomfort associated with her injuries. The injuries still affect her daily living, have eliminated her recreational activities, and have shattered her long-term vocational dream of becoming an interior designer.

[91] After leaving Vancouver and moving back to Chase to focus on her rehabilitation, the plaintiff undertook Rolfing treatments, yoga, pilates and other exercises at home. However, the plaintiff maintains that she has been left with a permanent partial disability consisting of daily headaches and pain in her neck, shoulder and back.

[92] The defence submits that in the two years before the second accident, the plaintiff was not restricted in her ability to attend school, work at employment of her choice, and engage in recreational activities. The defence submits that any headaches the plaintiff may have suffered were minor. The defence points to the statement provided by the plaintiff after the second accident, in which she lists her leisure activities as “swimming, snowboarding, wakeboarding, art, crafts, camping” and notes that she “broke [her] collar bone in 98 in a car accident”. In response to whether her injuries or pain were new or whether she had some of them before the accident, the plaintiff wrote “I had back pain, but the pain is now stabbing”. She did not mention headaches, neck pain or shoulder pain. The defence emphasizes the plaintiff’s disclosure as to her symptoms and condition, particularly to Dr. Quinn and to Ms. Sturgeon.

[93] I now turn to the claim for damages. The principles guiding the assessment of damages for personal injuries, particularly for loss of earning capacity, were succinctly summarized by Madam Justice Huddart in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158, at ¶8 to 11:

The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff's capacity to earn income is an asset which has been taken away. Where a plaintiff's permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

The trial judge's task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence … [The factors] include:

[1] whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less marketable or attractive as an employee to potential employers;

[3] whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

[4] whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

The task of the court is to assess damages, not to calculate them according to some mathematical formula. Once impairment of a plaintiff's earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff's likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[94] It is difficult to estimate the impact of injuries on different people. I find McEachern J.’s comment in Price v. Kostryba (1982), 70 B.C.L.R 397 (S.C.) at ¶6 particularly appropriate here. He says that “the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery”. On the whole of the evidence, I am satisfied that the plaintiff has to some extent exaggerated her claim. She either denied or did not recall saying anything that impacted negatively on her claim. However, I accept that she has suffered to some degree from headaches and chronic pain over the past ten years, and will continue to suffer these in the future, over some limited period of time. Some of her complaints are psychosomatic and she may benefit from counselling.

General damages

[95] The plaintiff claims $100,000 to $125,000 under this head of damages. She says that her post-injury level of functioning is a determining factor in making an award at the higher end of the range. The plaintiff relies on the following cases: McFadyen (Guardian ad litem of) v. Dean, 2006 BCSC 779 (where the plaintiff was 13 years old at the time of the accident, and suffered a pelvic fracture, loss of consciousness and soft tissue injuries, resulting in chronic lower back pain; he was awarded $50,000); Andres v. Leslie, 2005 BCSC 1096 (where the plaintiff was 19 years old at the time of the accident, when she suffered soft tissue injuries which resulted in persistent headaches; she was awarded $65,000 as non-pecuniary damages); Pett v. Pett, 2008 BCSC 602 (where the plaintiff was 18 years old at the time of the accident and physically very active; he lost consciousness and suffered soft tissue injuries, resulting in chronic low back pain; he was awarded $85,000 in non-pecuniary damages); Cleeve v. Gregerson, 2007 BCSC 112 (where the 20 year old plaintiff was very physically active before the first accident, where she suffered soft tissue injuries which resulted in ongoing headaches and pain; she was in a second accident which aggravated the injuries from her first accident for a period of time; she was awarded $87,500 in non-pecuniary damages); Caldwell v. Ignas, 2007 BCSC 1816 (where the plaintiff was 33 years old at the time of the accident, where he fractured vertebrae in his upper back and herniated one disc, and suffered soft tissue injuries which have resulted in chronic pain; he was awarded $100,000); Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455 (where the 26 year old plaintiff suffered whiplash injuries in a rear end collision which persisted in ongoing headaches and pain; she was awarded $125,000 as general damages); and Fox v. Danis, 2005 BCSC 102, aff’d 2006 BCCA 324 (where the plaintiff was 28 years old at the time of the accident, when she suffered nerve damage to her lower back resulting in permanent injuries; she was awarded $100,000 in general damages).

[96] The defence position is that $35,000 to $45,000 is an appropriate award of general damages. The defence relies on a series of other cases where awards in this range were made: Bittante v. Zichy, 2008 BCSC 728 (where the plaintiff was 19 years old at the time of the accident, in which she suffered soft tissue injuries and headaches which persisted even six years after the accident; she was awarded $45,000); Chang v. Feng, 2008 BCSC 49 (where the plaintiff was 28 years old at the time of the accident, suffered fractures, loss of consciousness and soft tissue injuries, persistent discomfort and pain; he was awarded $45,000 for non-pecuniary damages); Gorosh v. Bowen, 2005 BCSC 917(where the plaintiff, who was 14 at the time of the first accident and 16 at the time of the second accident, suffered soft tissue injuries which resulted in persistent pain, numbness and headaches, and was awarded $40,000 in non-pecuniary damages); Jones v. Davenport, 2008 BCSC 18 (where the plaintiff, who was 24 at the time of the first accident and 25 at the time of the second accident, suffered whiplash and bruising, and was awarded $45,000 for her non-pecuniary loss); Kailey v. Dhaliwal, 2007 BCSC 759 (where the plaintiff, aged 34 at the time of the accident, suffered soft tissue injuries, loss of consciousness, abrasions and scarring, and persistent back pain and headaches; he was awarded $36,000 in non-pecuniary damages); Salvatierra v. Vancouver (City), 2008 BCSC 537 (where the 37-year old plaintiff suffered soft tissue injuries in the accident, resulting in chronic pain; she was awarded $45,000); Sinnott v. Boggs, 2006 BCSC 768, aff’d 2007 BCCA 267 (where the plaintiff, who was 16 years old at the time of the accident and suffered whiplash which left her with ongoing pain and headaches four years after the accident, was awarded $35,000 in non-pecuniary damages); Love v. Lowden, 2007 BCSC 1007 (where the 28-year old plaintiff was very active physically before he suffered soft tissue injuries in a rear end collision, and continued to suffer lower back pain for years after the accident; he was awarded $60,000 as non-pecuniary damages); and Naidu v. Mann, 2007 BCSC 1313 (where in a rear end collision the relatively young plaintiff suffered soft tissue injuries which resulted in ongoing pain, the effects of which she exaggerated; she was awarded $50,000).

[97] The purpose of non-pecuniary damages is to “ameliorate the condition of the victim considering his or her particular situation”. The gravity of the injury is not determinative: Stapley v. Hejslet, 2006 BCCA 34 at ¶45. Factors that may influence a non-pecuniary damages award include the plaintiff’s age, the nature of the injury, the severity and duration of the pain she experienced, her disability, her emotional suffering, and the loss or impairment of life: Boyd v. Harris, 2004 BCCA 146. Ultimately, however, as Sinclair Prowse J. identified in Caldwell v. Ignas, “no two situations are identical” and the specific circumstance of the plaintiff’s case must be addressed in determining an award of non-pecuniary damages.

[98] Given the plaintiff’s young age, the pain and suffering after each accident, followed by her discomfort and her resulting diminished enjoyment of life, I assess general damages at $75,000.

Past income loss

[99] The plaintiff seeks compensation for past income loss for two periods of time: the two-week period from August 15 to 31, 2004, when she would have been employed at $8.50 per hour by the Chase Summer Program; and from May 2007 to the date of trial, when she would have been employed at $10 per hour, but for her focus on rehabilitation. The plaintiff testified that she withdrew from the Art Institute and quit her job so she could focus on a rehabilitation program. She seeks an award of $20,800, which is one year’s income at a wage of $10 per hour, plus $680 for the two weeks in 2004, for a total award of $21,480.

[100] The defence submits that the plaintiff has not proven, on a balance of probabilities, that this time off work was necessary or reasonable. The plaintiff made the decision to withdraw without any medical advice, and in fact Drs. Hershler, Wallace and Laidlow were all of the opinion that the plaintiff had the capacity to work. The defence submits that an appropriate award for past income loss is two weeks’ wages following the second accident, or $680.

[101] I accept that the plaintiff told Ms. Sturgeon in July 2005 that she could work a nine-hour shift. When she saw various medical professionals in February 2007, the plaintiff did not indicate that she was having serious enough troubles with the demands of her studies to consider quitting, yet she did so at the end of February 2007. I agree with the defence position and find that the plaintiff’s conduct in not seeking employment during her year of rehabilitation was unreasonable.

[102] I assess the plaintiff’s past income loss at $680.

Future cost of care

[103] The plaintiff claims $200,000 to $300,000 as the future costs of her care, based on a report prepared by Associated Economic Consultants on October 30, 2007, which estimated the net present value of the range of future costs identified by Ms. Dobbin as being between $199,919 (using a low cost estimate) and $314,837 (using a high cost estimate).

[104] The plaintiff relies upon Ms. Dobbin’s report of May 11, 2007. For the purposes of that assessment, it was assumed that the plaintiff would require assistance in the home in order to be meaningfully employed. Ms. Dobbin identified the following limitations for the plaintiff: reduced ability to sleep, reduced ability to perform homemaking activities, reduced ability to perform home and yard maintenance, reduce ability to perform parenting tasks, reduced ability to participate in educational pursuits, reduced ability to work, and reduced ability to participate in leisure activities of interest.

[105] The plaintiff says that she has almost always lived at home with her parents, or with a roommate, and has never performed the heavier components of housework.

[106] The defence position is that $1,500 is sufficient to address this head of damages. The doctors the plaintiff consulted have only recommended an exercise program (costing approximately $300), an ergonomic assessment ($200) and a vocational consultation ($750 to $1,000). Ms. Dobbin’s report shows she did not have the benefit of any of the medical reports prepared by the medical professionals who have examined the plaintiff, in particular Dr. Hershler, Dr. Oliver and Dr. Wallace; nor did Ms. Dobbin carry out any specific tests of her own to determine the extent of future care required by the plaintiff. Ms. Dobbin relies on unfounded assumptions, such as that the plaintiff will have two children, will move into a single family dwelling, and will have a yard to maintain.

[107] The plaintiff is “entitled to be compensated for all expenditures that are reasonably necessary, on the medical evidence, to promote her medical and physical health in the future … Moreover, the award must be moderate and fair to both parties”: Fox v. Danis, 2005 BCSC 102, citing Milina v. Bartsch (1985) 49 B.C.L.R (2d) 33 (S.C.), additional reasons (1985), 63 B.C.L.R. 122 (S.C.) , aff’d (1988), 49 B.C.L.R. (2d) 99 (C.A.).

[108] I accept the defence argument that to award the plaintiff a substantial sum for diminished earning capacity and a substantial sum for care costs intended to manager her symptoms so that she is able to work at a pre-accident level would effectively compensate the plaintiff twice for the same loss.

[109] I will deal with each of the items recommended by Ms. Dobbin in turn.

Exercise program

[110] The plaintiff has had extensive physiotherapy treatments which have given her no permanent relief, and only temporary relief. She may benefit from further physiotherapy, but only once she has undergone counselling and seen a kinesiologist in order for her attitude to change to this type of treatment. She may need to see a kinesiologist for some period of time, but not indefinitely. Based on the plaintiff’s own testimony and that of her boyfriend Garnet Corneil, exercising at the gym has brought her no relief and has at times worsened her pain. I am therefore allowing the claim for one year of physiotherapy at $305, two years of kinesiology at $1,440, and disallow the claim for a gym membership.

Chiropractic treatments

[111] The plaintiff has had extensive chiropractic treatments. None of the medical evidence supports the benefit of such treatments, and I am disallowing this claim.

Homemaking assistance

[112] Most of the items recommended by Ms. Dobbin rely on assumptions which have no factual or evidentiary basis. The plaintiff has testified that she has always had someone else to do the heavier household chores. Her mother testified that for the past year, the plaintiff has been able to clean her own bedroom and bathroom. The plaintiff testified that she wants to live in a small apartment in Vancouver, which would make many of the items recommended by Ms. Dobbin unnecessary. I disallow the plaintiff’s speculative claims for homemaking assistance, grocery delivery, childcare assistance, and home and yard maintenance.

Vocational counselling

[113] Dr. Wallace made recommendations which support Ms. Dobbin’s report in this aspect. The plaintiff shall recover $500 for vocational counselling and $1,800 for job placement assistance.

Ergonomic assessment

[114] The evidence establishes that the plaintiff would benefit from an ergonomic assessment in order to improve her working conditions. I allow this claim in the amount of $100.

Medication

[115] The evidence supporting the claim for the costs of medication is unsatisfactory. The plaintiff testified that she buys and takes over-the-counter Tylenol. No receipts were provided and evidence indicates that at different points in time, she takes this medication once a week, if at all. However, I allow her claim for one year’s supply at $126.72.

Diminished future earning capacity

[116] The plaintiff claims $225,000 under this head of damages. She testified as to her long-term dream of working as an interior designer, and as to her interest in owning a shoe store. The plaintiff concluded that she is no longer capable of working as an interior designer. The plaintiff submits that Dr. Herschler’s medical report, Ms. Dobbin’s Full Capacity Evaluation report, and Dr. Wallace’s vocational assessment indicate that the plaintiff’s future earning capacity has been diminished and is unlikely to improve to pre-accident levels.

[117] The plaintiff submits that in assessing her diminished future earning capacity, the court should consider the following factors: (i) whether the plaintiff has been rendered less capable overall from earning income from all types of employment; (ii) whether the plaintiff is less marketable or attractive as an employee to potential employers; (iii) whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her, had she not been injured; and (iv) whether the plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market: Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.).

[118] The plaintiff cites several cases (the same as those cited under general damages) where awards for diminished earning capacity ranged from $100,000 to $750,000.

[119] The defendants rely upon several other cases (cited above under general damages) in submitting that an appropriate amount is $20,000 to $35,000.

[120] The defence submits that the medical evidence of Drs. Oliver, Laidlow and Hershler establishes that the plaintiff has the ability and potential to work as an interior designer, if she follows an appropriate exercise-conditioning program. Ms. Dobbin’s report did not find the plaintiff was unemployable. The defence submits that the evidence establishes that the plaintiff is capable of working as a hostess, earning as much as $13 per hour, and if she worked as a waitress, as much as $32 per hour including tips (according to the testimony of Mr. Bentz, her manager at the Cactus Club). The average hourly rate for an interior designer working full-time is approximately $16.87 per hour.

[121] There are two methods of assessment under this head of damages, although both have the same outcome. The court can either use the “real possibility” approach, and compare the plaintiff’s likely earnings, had she not been injured, with the income she likely now earns, factoring in the positive and negative contingencies; or the court can value the loss of earning capacity as a capital asset (as Finch J.A., as he then was, suggested in Pallos v. ICBC (1995), 100 B.C.L.R. (2d) 260 (C.A.)). Here, the defendant says the plaintiff cannot prove any loss using the first method, so the second method must be used. I agree that valuation as a loss of a capital asset is appropriate.

[122] Given the plaintiff’s age, the nature of the work she was able to do before and after each accident her capacity to work in various fields, albeit with some discomfort, there is a strong possibility that the plaintiff, with the benefit of an ergonomic assessment and vocational counselling, will be gainfully employed. Her academic record prior to the accidents was not strong. Undoubtedly she has suffered a loss of a capital asset, but it takes some crystal gazing to ascertain the amount of this loss. I assess it at $60,000.

Special Damages

[123] The plaintiff claims for several out-of-pocket expenses totalling $19,883.60.

[124] The defendant’s position is that the Rolfing treatments totalling $1,401.18 and the transportation costs of $296.50 should be disallowed as they were not recommended by the plaintiff’s medical personnel. However, these items will be allowed as the plaintiff’s requirement of these treatments was reasonable, given her history of unsuccessful physiotherapy and chiropractic treatments.

[125] I also allow the plaintiff’s claims for physiotherapy costs of $854.25; the purchase of the infrared sauna at $3,227.70 and prior use of a sauna at $112; and the purchase of a new bed at $1,861.97.

[126] The plaintiff’s claim for special damages with respect to the tuition fees at the Art Institute of Vancouver of $12,400 is disallowed for the reason that the plaintiff’s abandonment of the courses because of her lack of motivation was not reasonable. Additionally, she did not take advantage of the counselling and accommodations provided by the Art Institute to deal with the difficulties with respect to illness or disability she says she experienced. In any event, the Art Institute permits re-admission to the courses and the plaintiff can re-apply in the future to complete her course of study. Of additional concern is that the plaintiff saw Dr. Wallace, Dr. Hershler and Ms. Dobbin in January and February 2007 and made no disclosure of her decision to quit her studies at the end of February 2007.

Summary

[127] The plaintiff shall recover damages as follows:

- general damages: $75,000

- past income loss: $680

- cost of future care: $4,271.72

- diminished future earning capacity: $60,000

- special damages: $7,753.60

The total award of damages is therefore $147,705.32. Counsel may make any necessary adjustments for the effects of income tax.

[128] Damages shall be apportioned 75% to the first accident (the defendant Kevin Knorr) and 25% to the second accident (the defendants Taryn Jones and Jonathan Van der Walle).

Costs

[129] The plaintiff shall have her costs at scale B.

“T. M. Singh J.”

Citation:	*Schubert v. Knorr,*
	2008 BCSC 939