2008 BCSC 1285 Menhinick v. Lobesz

Before: The Honourable Mr. Justice Blair

Reasons for Judgment

Counsel for the Plaintiff	G.P. Weatherill
Counsel for the Defendant	R. MacLeod
Date and Place of Trial/Hearing:	September 3 & 5, 2008
	Vernon, B.C.

[1] The plaintiff, Karen Ann Menhinick, seeks damages for injuries suffered on August 2, 2006 when the vehicle she was operating on a Vernon street was struck from behind by a vehicle driven by the now-deceased defendant, Margit Lobesz.

[2] Mrs. Menhinick was stopped at a red light when struck and although she describes the collision as significant, neither vehicle suffered much damage. Although the lack of vehicle damage may be a relevant consideration in considering Mrs. Menhinick’s injuries, it has to be balanced against the evidence of the plaintiff and the medical evidence: Jackman v. All Season Labour Supplies Ltd. 2006 BCSC 2053, ¶13. Mrs. Menhinick testified that within hours of the collision she began to suffer a headache, neck pain and some dizziness. Mrs. Menhinick observed the late Mrs. Lobesz to be dazed and her nose bleeding after the impact. The defence admits liability, leaving only the quantum of damages to be determined.

[3] Mrs. Menhinick claims damages under the heads of general damages, special damages, past loss of earnings or opportunity to earn, future loss of earning capacity, future care costs and loss of homemaking capacity.

Plaintiff’s Background

[4] Mrs. Menhinick, born February 10, 1961, is aged 47 years and has been married for 19 years to Craig Menhinick. The couple reside with their two children, Lane, aged 17, and Kallee, aged 13, on a two-acre farm in Lavington, a small community located just east of Vernon. Mrs. Menhinick graduated from grade 12 in 1979 and worked for a retail chain selling jewellery until 1986 when she enlisted in the RCMP, first spending six months in a French immersion course in Montreal before attending the RCMP’s training depot in Regina. During training she suffered a disk injury to her lower back which took four months to heal, leaving her with no after effects, but required her to repeat the police training program. Discouraged by that prospect and concerned with her seriously ill father, she left the police in 1987 and resumed her employment with the jewellery chain as a store manager in Cranbrook.

[5] Mrs. Menhinick worked as a manager until 1994 when she and her husband decided that she should be at home for the children until the youngest completed high school. For the past 14 years, Mrs. Menhinick has principally been involved in activities surrounding her home and her family, although by 2006, as her children became more independent, she had embarked on some part-time employment opportunities outside the home. The family moved to Lavington in 2001 when Mr. Menhinick took a job as a lumber broker.

Plaintiff’s Pre-Collision Activities

[6] Mrs. Menhinick in her testimony described the full and active role she played in all facets of her family’s lives. She was meticulous in maintaining her home, frequently vacuuming, washing the kitchen floor, laundering clothes, changing the bed sheets twice a week, cleaning the windows inside and outside, painting, decorating and restoring the inside of the home, restoring furniture, preparing and cooking the daily dinners attended by all four family members, as well as hosting and cooking during the frequent visits of the Menhinicks’ friends and family. Canning and baking also consumed a considerable amount of her time.

[7] Mrs. Menhinick volunteered in a variety of community-based endeavours as well as at her children’s schools. She participated, as did Mr. Menhinick, in their children’s extra-curricular activities such as hockey and dance lessons and she enjoyed attending concerts with her children and their friends. Mrs. Menhinick also assisted her 82-year-old mother who lives independently in 100 Mile House, visiting every six to eight weeks. When with her mother, Mrs. Menhinick would arrange and clean her home.

[8] While Mr. Menhinick looked after the bigger jobs outside of the home, this too was an area in which Mrs. Menhinick was also involved. The shrubs, the flower beds, and the pruning of trees all fell within Mrs. Menhinick’s duties, as did the care of the various animals, including four horses to which the family has become attached. In 2005, the family purchased a power boat which they used for water skiing and tubing. The family, including Mrs. Menhinick, also skied at local ski hills. Mrs. Menhinick said she was a fast and avid reader, reading a novel in two days.

[9] Mrs. Menhinick anticipated returning to employment outside the home as her children got older, and for a few years before the collision had worked part-time in Vernon and Kelowna several times a year demonstrating health and beauty products for a Toronto company. She and a friend, Corinne Ross, in the spring of 2006 also embarked on a business they called Staged to Sell utilizing their home maintenance and decorating skills to prepare homes for marketing, an enterprise which they anticipated would attract business from home owners and realtors. Before the collision, they had completed the makeover of two homes and their invoices, dated June 4 and 14, 2006 were in the amounts of $1,200 and $1,275.

Plaintiff’s Post Collision Activities

[10] Mrs. Menhinick anticipated that her immediate complaints of dizziness, headaches, neck pain, a middle back tenderness, and a sore elbow following the collision would soon resolve. While she recovered from the dizziness fairly quickly, the tenderness in the middle of her back persisted for six or seven months and her elbow continues to give her some difficulty, although it responded well to a cortisone injection on October 2, 2006. Mrs. Menhinick’s neck pain and headaches continue and they impact on her activities and her relationship with others, particularly her children, her husband and her friends. The activities Mrs. Menhinick used to perform quickly and easily now take much more time as she finds that short periods of work, be it in the garden, the kitchen or looking after the family home, exacerbate her neck pain and bring on headaches, the discomfort resulting in her stopping whatever activity in which she was then involved.

[11] Mrs. Menhinick testified that before the collision she would annually can 100 pounds of dill pickles, but since the collision she is only able to can 30 to 40 pounds of dills. Particularly difficult for her is any activity such as pruning, or painting or cleaning which involves working with her hands above her shoulder level. She testified that in July 2007 she painted her son’s bedroom, a task which would have taken her a day before the collision, but took her close to a week to complete because of the discomfort caused when painting at or over her head. Once a voracious reader, she finds herself now unable to concentrate and read as she did before the collision.

[12] The boating Mrs. Menhinick formerly enjoyed with her family and friends has been curtailed since the collision as the jarring motion of the boat induces headaches and neck pain as does skiing. Even standing for a time such as at a recent concert she attended with her daughter Kallee and friends brought on considerable pain. Drying and combing her hair, a task which used to take her 15 minutes, now requires an hour of her time, largely because it requires using her hands above her shoulder level.

[13] Before the collision Mrs. Menhinick had no problem driving or being a passenger in a motor vehicle. She finds now that on the four hour trip to 100 Mile House to see her mother she has to stop three or four times as her hands become numb and the activity triggers a headache and neck pain. When she visits her mother, Mrs. Menhinick is no longer able to clean her mother’s home. A two-day drive with her husband to see a rodeo in Edmonton left her in such discomfort that she was physically sick and left the performance after 30 minutes. Mrs. Menhinick described similar discomfort on a trip with her family by car to Vancouver’s Pacific National Exhibition.

[14] Both Mr. Menhinick and Nadine Laraway-Toop, a long time friend and neighbour of Mrs. Menhinick, observed that since the 2006 collision, Mrs. Menhinick has become a cautious driver and a nervous passenger. Mr. Menhinick said his wife used to be an easy passenger but now “freaks out” if anything bothers her about the way he is driving. Ms. Laraway-Toop described Mrs. Menhinick simply as a “horrible” passenger. Mrs. Menhinick finds herself often being irritable and impatient with her family and friends as well as other individuals. Both Mrs. Menhinick and her husband testified that their intimacy has been affected by her persistent pain and discomfort.

[15] Mrs. Menhinick deals with her neck pain and headaches mainly with Motrin, a pain killer, although her physician, Dr. Curtis Latham, has prescribed Robaxacet and Arthrotec to provide pain relief, but only for limited periods because of the medications’ difficult side effects. Mrs. Menhinick testified that when she is suffering from neck pain and headaches she lies down and goes to bed early to deal with the discomfort. Mrs. Menhinick has also taken numerous physiotherapy and massage treatments to deal with her neck pain and headaches and recently started a weight-loss program, losing 15 of the 30 pounds she gained after the collision.

[16] Mrs. Menhinick has resumed working part-time as a demonstrator of health and beauty products in Vernon, but will not work in Kelowna as the drive is too uncomfortable. Mrs. Menhinick’s business with Ms. Ross, Staged to Sell, has been dormant since the 2006 collision as Ms. Menhinick does not feel capable of performing the work’s heavy physical demands. Ms. Ross apparently is not pursuing the business either. Mrs. Menhinick considered training and then working as a licensed practical nurse after her children graduated from school, but believes she is no longer capable of that work’s physical demands. She is now considering a nine-month training course to work as a teaching assistant.

[17] Mrs. Menhinick’s description of the role she played prior to and subsequent to the 2006 collision was corroborated by her husband as well as by Ms. Laraway-Toop. The defence did not challenge Mrs. Menhinick’s testimony as to her activities prior to the collision, her description of her injuries, and the effect of her injuries on her activities. After hearing Mrs. Menhinick’s testimony as well as the evidence of the other witnesses, I find Mrs. Menhinick to be an honest individual, whose testimony is given in a straightforward fashion without any attempt to embellish or exaggerate her situation either before or after the 2006 collision. Her evidence suggests that while upset about the debilitating physical and emotional effects of her injuries, she is less concerned about their effect on herself than about her post-collision ability to meet the needs of her family as she did prior to the collision.

The Medical Background

[18] Mrs. Menhinick did not seek medical assistance immediately after the collision, believing she would recover quickly from her immediate complaints of dizziness, headaches, neck, and back pain. The sore elbow and the numbness in her hands when driving developed over time. When her discomfort continued for a few days post-collision, in spite of her use of Motrin and treating her neck area with heat and ice packs, and unable to see her family physician Dr. Latham, she attended at a walk-in clinic where she was given pain medication and muscle relaxants. She attended with Dr. Latham on August 16, 2006 and he remains her treating physician, seeing her on approximately 30 occasions since the collision. Dr. Latham, in his May 12, 2007 report, advised that he had initially prescribed a pain reliever, Robaxacet, ice packs and physiotherapy after finding moderate restriction of her neck movement and muscle spasm in her cervical area, as well as tenderness in her left elbow. Some improvement of her symptoms occurred by August 30, 2006, including decreased pain and stiffness in her left elbow and Dr. Latham placed her on Ibuprofen, an anti-inflammatory and pain reliever, arranged for massage therapy, further ice packs and recommended flexion exercises at home.

[19] Although Mrs. Menhinick’s elbow tenderness resolved somewhat after the steroid injection on October 2, 2006, Dr. Latham reported Mrs. Menhinick’s continuing difficulties with neck pain involving muscle spasms and impaired movement, difficulty in raising her arms overhead, driving, heavy lifting, and housekeeping. In November he recommended a return to physiotherapy twice weekly, more Ibuprofen, heat to her neck muscles and medication, Mersyndol, to relieve muscle spasms.

[20] On January 8, 2007, Mrs. Menhinick reported aggravating her neck pain by twisting her neck on extreme motion and Dr. Latham, upon noticing tenderness at the C6-C7 level ordered x-rays of her cervical spine. The radiologist reported that the x-rays revealed a disc space narrowing at the C5-C6 and C6-C7 levels of the cervical spine, that osteophytes had developed in the cervical spine and that cervical spondylosis was present from C3 to C7 inclusive. Dr. Latham advised that up to May 1, 2007, Mrs. Menhinick continued to attend with continuing complaints regarding neck pain, muscle spasming, and a sore elbow.

[21] Dr. Latham stated at p. 3 of his May 12, 2007 report that Mrs. Menhinick had a deceleration injury from the collision and:

… sustained some cervical disc injury, with impaired mobility and narrowing at C5-C6 and C6-C7 with the formation of osteophytes, which are now causing some encroachment on the nerve roots at these levels.

The persistence of neck stiffness and pain in an otherwise healthy individual suggests that this accident has actually provoked these symptoms.

I would have to conclude that the impact of the accident was sufficiently severe to cause a neck sprain and associated disc injuries, which have impaired the mobility and caused some nerve root entrapment and pain on the right side.

[22] Dr Latham at p. 4 stated that although Mrs. Menhinick will make some improvement, she is restricted on a long-term basis with working with her arms overhead or doing any heavy lifting and concluded:

I suspect that there will be a permanent partial disability from this type of injury. However, at this point, it is unpredictable. Unfortunately, aging tends to aggravate these changes and produce secondary degenerative changes at both the facet joints as well as the disc margins. The presence of posterior osteophytes causing encroachment on the foramenal spaces is somewhat ominous for delayed impairment of neck mobility and activity.

[23] In his second report dated October 15, 2007, Dr. Latham noted that Mrs. Menhinick continued to suffer neck pain and numbness in her hands which he related to her neck pain. He attributed her elbow discomfort to tendonitis. As a result of his observations in September 2007, he had more x-rays taken of her cervical spine which revealed progressive changes in the cervical spondylosis from C3-C4 to C6-C7. At p.2 of his report he opined that Mrs. Menhinick had

… sustained a moderately severe sprain of the cervical spine resulting in initial soft-tissue injuries of the ligaments and muscles of the neck, culminating in some fixed radiologic evidence of arthritis developing in the facet joints. She also has some narrowing of the disc spaces coincident with the motor vehicle trauma.

[24] He wrote at p.3 that her disability had increased and become debilitating, stating:

There is no doubt in my mind that the motor vehicle accident is responsible for the loss of movement, persistent pain and the progression of post traumatic arthritis in her neck. The presence of altered sensation in her hands after driving is worrisome as it may imply she is developing some nerve entrapment pain and altered sensation related to the findings at C5-C6 and C6-C7. These are the nerve roots that supply the hand and fingers, especially when she is sitting in a fixed position such as driving.

[25] Dr. Latham added:

She will have a permanent partial disability from this type of injury and, unfortunately, at her age, she may develop secondary degenerative changes resulting in osteoarthritis in the facet joints as well as discogenic pain and nerve entrapment.

It is still too early to predict any possibility of further recovery with physiotherapy, but I am doubtful that she will make much further progress.

[26] Dr. Latham wrote a further report dated December 17, 2007 in which he responded to a report from physiatrist Dr. Andrew Travlos, a specialist in physical medicine and rehabilitation who examined Mrs. Menhinick on October 29, 2007. Dr. Latham at p. 1 of his report referred to the x-rays taken in January and September 2007 in which he wrote:

…showed progressive changes in the cervical spondylosis in a relatively short time suggestive of post-traumatic changes. These changes are typical of hyperflexion-hyperextension sprain of the neck and are not caused by degenerative changes or aging in this otherwise fit, young woman.

[27] Dr. Latham disagreed with Dr. Travlos’ finding that Mrs. Menhinick’s neck symptoms were “primarily myofascial and soft tissue in nature”, stating:

She does, indeed, have persistent and increasing neck pain from mechanical inujry to her facet joints and the risk of discogenic deterioration at C5-C6 and C6-C7. I also disagree with his prediction that ther neck symptoms would continue to improve over the next year. In fact, this has been the opposite, as of the last office visit here at the end of November, she is worse than before, and her disability is increasing with time.

[28] Dr. Latham asserted that Dr. Travlos, on the basis of a single examination, had made some highly speculative estimates of Mrs. Menhinick’s disability and had mistaken the progression of her symptoms and radiologic evidence in terms of prognosis, adding:

I am concerned that this woman has a fixed plateau of recovery and, indeed, is showing gradual deterioration with secondary post-traumatic degenerative changes in her neck directly resulting from the motor vehicle accident of 2 August 2006.

[29] In his October 29, 2007 report, Dr. Travlos examined Mrs. Menhinick for the purposes of providing her counsel with an independent medical assessment. Dr. Travlos, at the time of preparing his report, was a clinical associate professor of the medical faculty at the University of British Columbia, the chair of the national speciality committee in physical medicine and rehabilitation at the Royal College of Physicians and Surgeons of Canada, as well as the medical manager of the neuromusculoskeletal rehabilitation program for Vancouver General Hospital and the G.F. Strong Rehabilitation Centre, also located in Vancouver. Dr. Travlos had considerable expertise in his specialty. At p. 3 of his report he stated:

Ms. Menhinick’s current headache pains are cervicogenic in origin and radiating from the neck. The neck symptoms are primarily myofascial and soft tissue in nature. She does not really have much in the way of mechanical neck pain at this time. It is probable that the mechanical neck symptoms were a bigger feature in her complaints after the accident, but these are less of a concern. Ms. Menhinick did have x-rays done of her neck and do show the presence of underlying degenerative changes. These degenerative changes were asymptomatic prior to the accident and were rendered symptomatic by the accident. Degenerative changes do leave an individual at greater risk of injury and a lengthy recovery. Presently, it is my opinion that Ms. Menhinick’s mechanical pains from these degerative changes are less of a concern and her current symptoms are primarily soft tissue.

Ms. Menhinick’s neck symptoms should continue to improve over the course of the next year or more. She has shown fairly steady improvement up until now and although she feels that things have plateaued for a while, this is not unusual and I do expect her situation to continue to improve and ultimately the neck symptoms should probably settle down and go away. Once this occurs, so will the headache pains. It is my opinion that the current residual head and neck symptoms are secondary to the accident of August 2, 2006.

[30] At pp. 3-5 of his report Dr. Travlos noted Mrs. Menhinick’s continuing symptoms of epicondylitis which he explained was the equivalent of tennis elbow. He believed that there was an underlying weakness in the elbow from an incomplete recovery with a resulting susceptibility to injury with certain activities such as canning. He believed the elbow was likely to improve, but would not be surprised if the elbow continued to bother her for some time. He also noted that Mrs. Menhinick complained of some symptoms of carpal tunnel syndrome when driving, but he did not associate that condition to the accident suggesting she should have nerve conduction studies to assess their severity.

[31] Dr. Travlos testified that there was a reasonable expectation for further improvement of Mrs. Menhinick’s symptoms, stating that in his judgment, on a balance of probabilities, there was a more than even chance that her complaints will improve. However, as I understand his evidence, he acknowledged that the longer her complaints lasted, the less the likelihood there was of a full recovery. He noted that she has degenerative damage to her neck which would slow her recovery and which likely would be incomplete.

[32] Dr. John Coghlan, another specialist in the field of physical medicine and rehabilitation, on April 10, 2008 examined Mrs. Menhinick at the request of the defence and prepared a report dated April 10, 2008. Dr. Coghlan reviewed the x-rays taken of Mrs. Menhinick’s cervical spine in January and September 2007 and March 2008 in which he noted the degenerative changes referred to in Dr. Latham’s reports, adding that in his opinion there was no significant change between the x-rays taken in 2007 and those taken just prior to his examination of Mrs. Menhinick.

[33] Dr. Coghlan concluded that Mrs. Menhinick suffered a whiplash associated disorder in the August 2006 collision and stated at p.8:

Complicating the issues in her case is the fact that she does have fairly advanced degenerative disc disease and facet arthritis in her neck and the changes noted on her x-rays are consistent with this.

These changes are not due to the accident.

I would disagree with Dr. Latham’s report, Tab #3, [December 17, 2007] suggesting that these changes have been progressive.

…

The fact that she had quite advanced degenerative disease in her neck would make her more susceptible to a relative [sic] minor injury and more significant symptoms, as has been the case in this situation.

I do not feel that this accident will cause acceleration of her underlying degenerative disc disease and facet arthritis. I do however suspect that in the long term that this may be a factor in the future unless she is very aggressive and fastidious about her posture as well as maintaining flexibility.

[34] Dr. Latham in his letter of July 6, 2008 disagreed with Dr.Coghlan’s conclusion that Mrs. Menhinick’s degenerative disc disease is not due to the accident. Dr. Latham opined that Mrs. Menhinick had no prior complaints of neck stiffness or pain prior to the 2006 collision and that the x-rays and clinical findings in his opinion are indeed progressive and coincident with her injuries. He wrote that the mechanism of the injury would predispose Mrs. Menhinick to “accelerated degenerative changes and specifically the radiologic changes …” in her cervical spine between C3 and C7.

[35] Dr. Latham testified that as Mrs. Menhinick’s family physician he had an advantage over Drs. Travlos and Coghlan in that he had treated Mrs. Menhinick before the 2006 collision, and had the opportunity of following Mrs. Menhinick’s progress with respect to her injuries after the collision, whereas the two physiatrists had each examined Mrs. Menhinick on just one occasion.

[36] While I appreciate Dr. Latham’s responses to the reports provided by the two physiatrists, I am not prepared to ignore the findings of Drs. Travlos and Coghlan who are both specialists in the diagnosis and prognosis with respect to the hyperextension-hyperflexion type of injury suffered by Mrs. Menhinick. I am satisfied on the evidence that Mrs. Menhinick’s symptoms will improve over time although not as quickly as might have occurred in the absence of the existing degenerative changes to her cervical neck. I am also satisfied that there is a degree of uncertainty as to whether her recovery will be complete. These are all factors to be considered in the determination of Mr. Menhinick’s general damages.

Non-pecuniary Damages

[37] Counsel provided a broad range of cases with respect to damages. Mrs. Menhinick’s counsel quantified the plaintiff’s damages in the $40,000 to $60,000 range, while the defence submits that a range of $18,000 to $25,000 is appropriate.

[38] At trial, some two years post-collision, Mrs. Menhinick described the complaints which developed after the collision, including her neck, mid-back and elbow pain, headaches, and numbness in her hands often when driving. The mid-back pain has resolved. From her testimony, I find her other difficulties have eased with the passage of time thanks to Mrs. Menhinick’s utilization of pain-killing medication and her adherence to prescribed programs of massage therapy, physiotherapy, and exercise. She has also learned to restrict those activities which trigger her pain and discomfort.

[39] However, the difficulties resulting from the collision remain albeit to a lesser extent and there is no guarantee that she will recover completely. Mrs. Menhinick’s complaints have limited her activities, both in and out of the home, and left her unable to participate in her family’s activities as she did before the collision. Nor is she comfortable in continuing her community involvement to the extent she did prior to the collision. While she is able to do most of the activities she did before the collision, she is unable to do them to the same vigorous extent. Her injuries and the resulting irritability and impatience have and continue to affect her relationships with those with whom she is closest, her husband and children, and to a lesser extent with her friends and acquaintances. I am satisfied that the injuries suffered in the collision will affect her enjoyment of life for the indeterminate future.

[40] Of the cases provided by counsel, I found Mr. Justice Barrow’s decision in Wery v. Toulouse, [2006] B.C.J. No. 1186 offering the most assistance in determining Mrs. Menhinick’s general damages although, as in all such damage assessment, each case necessarily depends on its own facts. In Wery, the plaintiff suffered mild whiplash injury involving pain in her neck, lower back, and shoulder and numbness in her left hand. Barrow J. awarded $45,000 for non-pecuniary damages. I conclude that a similar award, $45,000, is appropriate for Mrs. Menhinick.

Special Damages

[41] Mrs. Menhinick paid $1,337.30 for massage therapy and $585 for physiotherapy. She also seeks a lump sum of $500 for over the counter medications, mileage costs incurred in attending at her various care givers, and her elbow brace, but she does not provide statements or receipts for these costs. Although I accept that Mrs. Menhinick undoubtedly incurred some costs, in the absence of supporting documents, I am prepared only to award $250 for this part of her claim. I find that her special damages total $2,172.30.

Past Loss of Earnings/Opportunity to Earn

[42] Counsel bases Mrs. Menhinick’s claim for past loss of earning or loss of opportunity to earn from her part-time employment before the collision and he submits the plaintiff is entitled to an award of $10,000. Counsel submits that in the spring of 2006, Mrs. Menhinick and Ms. Ross, operating as Staged to Sell, completed two jobs billing $1,200 on one contract and $1,275 on the second contract, for a total of $2,475. The partners did no further work initially because they did not plan to work during the summer months when their children were out of school and subsequently because Mrs. Menhinick did not believe she was capable of performing the hard physical work required to fulfill such contracts. Counsel asserts that Mrs. Menhinick’s earnings of $600 on each of the two contracts is sufficient to found her claim for a past loss of earnings or lost opportunity to earn of $600 a month over a period of 20 months for a loss of $12,000 to the date of trial.

[43] In addition, Mrs. Menhinick also claims a loss of income or loss of opportunity to earn of $660 from her employment demonstrating healthcare products as she restricted her work to Vernon as she found the drive to Kelowna to work too uncomfortable. Plaintiff’s counsel submits that in all the circumstances, Mrs. Menhinick’s past loss of earning or loss of opportunity to earn should be assessed at $10,000.

[44] However, the defence submits that the evidence is insufficient to found a loss of $10,000 noting that the Staged to Sell invoices do not indicate expenses incurred by the operators in fulfilling the contracts, therefore the operator’s net earnings have not been established. Further, counsel notes that two contracts is a skimpy base upon which to establish a loss of past earnings, particularly where there is an absence of indicia such as a business bank account and the remaining partner, Ms. Ross, did not pursue the business opportunity in the absence of Ms. Menhinick. Similarly, defence counsel submitted that Mrs. Menhinick’s evidence of a loss of earnings as a demonstrator is also too nebulous upon which to base a claim.

[45] Mrs. Menhinick testified that the work in the Staged to Sell operation was extremely arduous and time consuming. I am unable to determine on the evidence that the operation was financially viable and worthy of pursuit. There is no evidence of such operations elsewhere or that other operators leapt to fill the gap left with the demise of Staged to Sell. I am not convinced on balance that Mrs. Menhinick has established her claim to an award of past loss of earnings or opportunity to earn in the amount of $10,000, but I am satisfied that Mrs. Menhinick would have found some source of additional income between the collision and the trial, but for her injuries and I am going to assess that loss at $2,500.

Loss of Future Earning Capacity

[46] Counsel submits that as a result of her injuries, Mrs. Menhinick suffered a loss of capacity or the loss of opportunity to earn income in the future. Mr. Justice Finch (as he then was) at ¶8 of his decision in Brown v. Golaiy, [1985] B.C.J. No. 31 set out the following considerations where loss of future earning capacity is in issue:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. the plaintiff is less marketable or attractive as an employee to potential employers;

3. 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. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[47] Mr. Justice Taggart in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.) cited with approval the considerations found in Brown.

[48] Mrs. Menhinick’s earning capacity has been restricted to date by the injuries suffered in the collision, but how far into the future that restriction will continue is a matter of conjecture. Dr. Latham considers that Mrs. Menhinick has a permanent partial disability and is concerned that she may develop secondary degenerative changes. He also opined that she can no longer work with her arms overhead or do any heavy lifting such as landscaping, although the physiatrists, Dr. Travlos and Dr. Coghlan, are more optimistic about Mrs. Menhinick’s future capacities. I do not understand them to say that Mrs. Menhinick will suffer a permanent disability. However, Mrs. Menhinick continues to suffer from her injuries and testifies that certain activity will trigger neck pain, headaches and elbow pain. It is an open question as to how long she will continue to suffer from these complaints, but for at least the immediate future I am satisfied that as a result of her injuries she is less capable overall, is less marketable, has lost the ability to take advantage of all job opportunities, and is less valuable to herself.

[49] However, on the positive side, Mrs. Menhinick testified that she is interested in qualifying as a teacher’s assistant and there is no suggestion that any of her present complaints, if they do continue, would preclude her from training and obtaining employment in that field. Dr. Latham described such employment as a good idea. Assessing Mrs. Menhinick’s loss of future earning capacity is difficult given the variable factors at play and the vagueness of her future capacities. Economist Robert Carson prepared a multiplier table to be used to calculate the net present value of any pattern of future earnings or loss of earnings. The difficulty in Mrs. Menhinick’s situation is in ascertaining any pattern of future earnings or loss of earnings. Awards for loss of future earning capacity range widely from a few to many thousands of dollars. While plaintiff’s counsel presses for an award in the amount of $30,000, I conclude that sum is too high in the circumstances. I assess the appropriate award for future loss of earning capacity to be $25,000.

Cost of Future Care

[50] Mr. Carson determined that the cost of Mrs. Menhinick’s future care will require a present day award of $258,000, but he made that determination largely on the report prepared by occupational therapist Karen Tims who predicated her recommendations upon Mrs. Menhinick requiring care for the rest of her life. The facts that I found from the testimony of the three doctors as well as the other evidence does not support the contention that Mrs. Menhinick will require care for the remainder of her life. The submission by plaintiff’s counsel that the future care award ought to be in the range of $60,000, not Mr. Carson’s $258,000 figure, correctly recognizes the limitations imposed by the evidence on Mr. Carson’s calculation. I criticize neither Mr. Carson nor Ms. Tims. Neither had the opportunity to hear the evidence, particularly the testimony of Drs. Latham and Travlos, and Ms. Tims did not report reviewing Dr. Coghlan’s report. Plaintiff’s counsel submits that the costs compiled by Ms. Tims, while not for life, will be necessary for a minimum of the next four to five years.

[51] Ms. Tims anticipated that the costs associated with massage therapy, homemaking services such as house cleaning, window cleaning, gardening, and the medications Arthrotec, Motrin and Robaxacet would continue for life and such is not the case. Dr. Latham advised that Arthrotec and Robaxacet ought to be used sparingly and Motrin as needed, reducing the cost significantly. Further I accept that there is a need for massage therapy and homemaking services to some limited extent for which Mrs. Menhinick ought to be compensated, but not to the extent recommended by Ms. Tims, nor for the full period submitted by plaintiff’s counsel.

[52] There were several future care costs which were of a one-time or short duration, including psychological counselling to assist Mrs. Menhinick in addressing her driving anxiety and assisting her in further development of pain management strategies and I accept that cost at $1,500. I also accept as proven the need for instruction from an occupational therapist in ergonomic principles and activity pacing at a cost of $360 and the purchase of an office-style chair at a cost of $199.

[53] Having concluded that the calculations performed by Mr. Carson do not accurately reflect Mrs. Menhinick’s situation, I am left to add the specific future costs which I do accept with an assessment of the other future costs which cannot be ascertained with the specificity found in the reports of Ms. Tims and Mr. Carson. I am satisfied that there is a medical justification in Mrs. Menhinick’s continuing physical complaints that warrant an award for these expenses. Using that approach I assess in a global fashion Mrs. Menhinick’s total future care costs at $30,000.

Loss of Past and Future Housekeeping Capacity

[54] Mrs. Menhinick further claims for loss of past and future housekeeping capacity which her counsel submits should attract an award of $30,000. However, defence counsel submits there is a difficulty in compensating Mrs. Menhinick under this head of damages given there has been compensation awarded for her restricted physical capacities to perform homemaking services under her future care costs, leading to the potential for duplicating an award should damages be provided for loss of past and future housekeeping capacity. Mrs. Menhinick is entitled to be compensated for the full amount of her loss, but no more: Ratych v. Bloomer, [1990] 1 S.C.R. 940 at p. 962.

[55] The decisions in McTavish v. MacGillivray, 2000 BCCA 164; 5 W.W.R. 554; 74 B.C.L.R. (3d) 281 and Deglow v. Uffelman, 2001 BCCA 652, 96 B.C.L.R. (3d) 130 are authority for awards for loss of past and future housekeeping capacity assuming that there is an evidentiary base to found such an award. The plaintiff must establish a real and substantial possibility that she will continue in the future to be unable to perform all of her usual and necessary household work, and that the work she will not be able to do will require her to pay someone else to do it, or will require others to do it for her gratuitously.

[56] Mrs. Menhinick testified that since the collision she tries to do everything she did before the collision, but that she has to do it differently, is a lot slower and muddles through. Although her two children have always had chores to do such as looking after the family pets, she did not like to see them cleaning the floors, changing the sheets or doing the laundry, tasks which I understand she continues to do, albeit more slowly than she did before the collision.

[57] Mrs. Menhinick testified that she continues to look after the extensive flower beds around their home, but that it takes her longer to do the work. She no longer prunes the apple and lilac trees because it is an activity that requires her to work with her arms above her head, a position that distresses her. Mrs. Menhinick testified that her husband Craig did not help her much with the tasks around the home, noting that this year she saw him pick up a broom for the first time in 19 years. It appears that before the collision Mr. and Mrs. Menhinick divided between themselves the tasks to be performed around the home and that this division of labour has continued since the collision.

[58] On the evidence, I am unable to conclude that Mrs. Menhinick has established that she is unable to perform the household work that she did before the collision, although I accept that she performs it differently and more slowly and in assessing damages for non-pecuniary loss I have considered the difficulties Mrs. Menhinick encounters when performing her homemaking tasks. I am unable to conclude on the evidence that her children and husband have or are performing work around the home which was formerly done by Mrs. Menhinick other than some of the heavier work of lifting and pruning in the garden. Under future care costs, I have already included a sum to enable Mrs. Menhinick to pay an individual to do such heavy work.

[59] I find that Mrs. Menhinick has not established the requisite basis for damages for the loss of past and future homemaking capacity and I dismiss her claim under this head of claim.

Summary

[60] Mrs. Meninick is entitled to the following awards:

Non-pecuniary Damages:	$45,000.00
Special Damages:	$2,172.30
Past Loss of Earnings/Opportunity to Earn:	$2,500.00
Loss of Future Earning Capacity:	$25,000.00
Cost of Future Care:	$30,000.00
Loss of Past and Future Housekeeping Capacity:	Nil
TOTAL:	$104,672.30

Costs

[61] The trial record indicates that this trial was brought pursuant to Rule 66 of the Rules of Court and the applicable costs are those pursuant to Rule 66 (29), (29.1) and (29.2). If counsel are unable to agree to costs, the parties will have 30 days from the date of the filing of these Reasons for Judgment to set an application to speak to costs.

“R.M. Blair J.”

BLAIR J.

Citation:	*Menhinick v. Lobesz,*
	2008 BCSC 1285