Chisholm v. Lindsay, 2012 ABQB 81

Court of Queen ’ s Bench of Alberta Citation: Chisholm v. Lindsay, 2012 ABQB 81 Date: 20120203 Docket: 0701 04015 Registry: Calgary Between: Catherine Chisholm Plaintiff - and - Noreen Lindsay Defendant Corrected judgment: A corrigendum was issued on May 22, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reason for Judgment of the Honourable Madam Justice C.L.

Kenny _______________________________________________________ Introduction [ 1 ] The Plaintiff was injured when the vehicle in which she was sitting, which was parked in a shopping mall parking lot, was rear ended by the Defendant’s vehicle. Liability for the accident is admitted. The Plaintiff claims damages for her injuries. Background of the Accident

[ 2 ] On April 22, 2005 just before noon, the Plaintiff, Ms. Chisholm, was sitting in her vehicle in the driver’s seat, eating her lunch. The vehicle was parked in a designated parking spot at a shopping centre, the engine was off and she was not wearing her seatbelt. There were vehicles parked in front of her and on either side of her vehicle. Her vehicle was struck from behind by the Defendant’s vehicle (Ms. Lindsay).

The force of that collision caused her vehicle to strike the vehicle parked in front of her and then strike the vehicle to the right of her. [ 3 ] The owner of the vehicle parked to the left of her was an eyewitness to the accident. He was coming out of the bank in the shopping centre heading to his vehicle. He heard the sound of a vehicle with very high revs to his right. He noticed the sound as it was unusual in a parking lot. He saw the vehicle, an SUV, cross the parking lot. It was moving fast in relation to how fast vehicles usually move in a parking lot. He then heard a crash.

When he came around the back of his vehicle, he saw that the SUV had crashed into the Plaintiff’s vehicle beside him. [ 4 ] The police officer who arrived at the scene immediately after the accident, spoke to the parties and other witnesses nearby. His collision report noted the dynamics of the collision as indicated earlier. The officer noted that the Defendant mistakenly pushed on the accelerator rather than the brake. She hit the rear driver’s side of the Plaintiff’s vehicle.

The officer noted that the Defendant’s vehicle was going at an unsafe speed. [ 5 ] The emergency medical technician (EMT) who arrived on the scene assessed Ms. Chisholm. He checked her vital signs and then did a physical examination. Among other things, he noted slight dizziness and weakness, along with facial pain and swelling. He noted there was no neck, back or chest pain. As a result of slight abnormalities in blood pressure and pulse rate, the EMT decided to transport Ms. Chisholm to the hospital for a further checkup. Ms.

Chisholm indicated to the emergency room doctor that she banged her head and felt hot and faint after the accident. Other investigations appeared normal. He diagnosed facial contusions and ordered facial x- rays. Details of the Plaintiff [ 6 ] Ms. Chisholm was age 31 at the time of the accident. She is currently 37 years of age. She has a Bachelor’s Degree in Education and a Master’s Degree in Divinity. She has been married since 1997 and has two sons, born after the accident, currently 5 and almost 3 years of age.

At the time of the accident she was working full time as a special education teacher with the Calgary School Board. Dynamics of the Accident [ 7 ] Mr. Sawa , qualified as an expert in the area of mechanical engineering specializing in accident reconstruction, gave evidence on the dynamics of the collision and his estimate of the speed of the Defendant’s vehicle when it struck the Plaintiff’s vehicle. He concluded that there were three distinct collisions.

The first occurred when the Defendant’s vehicle struck the left rear corner of the Plaintiff’s vehicle causing a change in velocity to the Plaintiff’s vehicle of 19 - 24 km/h. The Plaintiff would have moved rearward and slightly leftward relative to the interior of the vehicle. [ 8 ] The second collision occurred when the Plaintiff’s vehicle struck the vehicle parked in front of it causing a change in velocity to the Plaintiff’s vehicle of 9 - 14 km/h. Ms.

Chisholm would have moved forward relative to the interior of the vehicle. [ 9 ] The third collision occurred when the right side of the Plaintiff’s vehicle struck the left side of the vehicle parked to it’s right causing a change in velocity to the Plaintiff’s vehicle of about 3 km/h. Ms. Chisholm would have moved rightward and slightly forward relative to the interior of the vehicle. In collisions 2 and 3, Ms. Chisholm would have been out of her normal seating position. [ 10 ] Mr. Sawa estimated that the Defendant’s vehicle was travelling somewhere between 33-41 km/h when it struck the Plaintiff’s

vehicle and that all 3 collisions referred to above took place within 1.2 seconds. Accident- January 2010 [11] Ms. Chisholm was involved in another accident in January of 2010. She was sitting in the third seat of a van. Another adultwas next to her. In the seat in front of her were her two children. In the front seat were her husband who was driving and another adult.Their vehicle was making a left hand turn when it was struck in the front by another vehicle. All of the occupants were safely removedfrom the vehicle. None of the other passengers suffered any injuries. Ms.

Chisholm indicated that she was sore and hurting after theaccident. She felt that the pain and injuries were in all the same places as the accident of 2005. It was her view that this accident simplyaggravated the injuries she suffered in the 2005 accident. [12] She attended physiotherapy for a period of time after which she felt that she had returned to the same status she had before the2010 accident. Ms. DesRoches who was her physiotherapist after this accident, indicated that she terminated treatment after about 3months as the Plaintiff was pain free and only had occasional lower back and neck pain.

She did indicate however that the injuries maylead to early degeneration in the cervical and thoracic spine and that is more likely since the Plaintiff had been involved in a previousaccident (2005) where she also suffered soft tissue damage. She suggested an ongoing home exercise program. Ms. Chisholm also wentto see her dentist again as her jaw was hurting and he adjusted her splint and suggested she wear it again as required. Causation [13] Causation is an issue in this case. The Defendant says that while the accident caused certain injuries to the Plaintiff thoseinjuries have resolved.

They say that any injuries the Plaintiff is currently suffering from have been caused either by the 2010 accident orfrom other life stressors affecting the Plaintiff. In particular, they refer to the fact the Plaintiff has had two children since the accident andshe has moved with her family to Edmonton leaving behind friends in the Calgary area. They say that she is a “crumbling skull” havinghad difficulties with anxiety prior to the accident which has made her more prone to the problems she currently suffers. [14] The law of causation is governed by two decisions from the Supreme Court of Canada: Athey v.

Leonati, (SCC), [1996] 3 S.C.R. 458 and Resurfice Corp. v. Hanke, 2007 SCC 7 , 2007 SCC7, [2007] 1 S.C.R. 333. The Plaintiff mustprove, on a balance of probabilities, that the accident caused or contributed to her injuries. The basic test is the “but for” test; the Plaintiffmust prove that the injury would not have occurred but for the Defendant’s negligence. In special circumstances, a “materialcontribution” test may be applied. [15] Ms. Chisholm says that “but for” the accident, she would not be suffering from the symptoms she now experiences.

I amsatisfied that the “but for” test is the appropriate test in this case. The Plaintiff says that she had no significant pre accident history whichwould have contributed to her current difficulties and that at most, she would be a “thin skull” Plaintiff rather than a “crumbling skull”Plaintiff. Plaintiff’s Personal History

a) Lifestyle Pre and Post Accident [16] I heard from a number of witnesses who knew Ms. Chisholm before the accident and then had contact with her after theaccident. These include her best friend of 25 years, a long time pastor with her church, her sister-in-law, her husband, and her mother. Ialso have her own evidence about her circumstances. These individuals describe Ms. Chisholm, pre accident, as ambitious, a naturalleader and teacher, one who loved to travel and seek out new adventures, always positive and upbeat.

She was the first to volunteer toorganize any activity and loved working with children which she had done since her early teens. Her husband described her as having aspark of energy, she was a planner and organizer, she would see a need and just create a plan to deal with it. She was very involved in her

church at all levels as well as with Baptist Student Ministries in university including president for a few years. She attended and then was leader of the summer youth celebration (SYC) for the church including director for the last 10 years. [ 17 ] Ms. Chisholm described her lifestyle growing up before the accident. In junior high school she was in music, drama, on student council, did babysitting and was on the graduation planning committee. She was also the valedictorian of her junior high graduating class.

In high school, she was on student council, the year book editor, a member of a peer support team, very involved in youth and pre school groups at her church, worked part time , did babysitting, and took piano lessons. [ 18 ] In university, she was involved in the Baptist Student Ministries including acting as president, did all the educational planning at her church for the children’s ministry, worked retail part time and completed all her university courses. She graduated with a Bachelor’s Degree in Education in 1997, while doing the planning for her wedding that same year.

She and her husband then moved to Cochrane, Alberta where she took a Master’s Degree in Divinity over the next 4 years. While pursuing that degree, she worked part time at a café, taught piano lessons to 25 students, ran the youth ministry in her church, and was involved in the planning team for the SYC. [ 19 ] These same individuals describe the Plaintiff after the accident as fatigued, not able to do as much and unable to follow through. They say she is more subdued and backs away from many activities. She is still involved in her church but much less so and does not do as much of the planning.

It takes her much longer to process information. In 2010 her sister-in-law hired and continues to pay for a housekeeper as she found the Plaintiff was unable to look after the house and her children as she was always exhausted. She makes plans and then forgets what she planned. She still has the drive but cannot maintain routine or plan efficiently. She naps regularly and simply is too fatigued to do what she used to do. Her husband says that her heart and mind are there but the spark and functionality are gone.

He says they go on with their life and activities but there is much less the Plaintiff can do with the family, her children and the church. The Plaintiff confirms this. She has had chronic pain since the accident which comes and goes and is mainly activity related. She is tired all the time. Her organizational skills are not the same. She finds it harder to plan, focus and comprehend. She has lost her self confidence.

b) Work Performance Pre and Post Accident [ 20 ] The Plaintiff finished her master’s degree in 2001 and started looking for a teaching job in Calgary. She was hired by the Calgary School Board for the 2001/2002 school year as a relief teacher at a school for special needs children. She worked with a class of medically fragile children. All were in wheelchairs and all were non-verbal. Teachers in this school work with assistants and liaise with many other professionals including doctors and physiotherapists in creating individual programs for each child and then carry out those programs.

The job is very physically demanding as the children require a lot of movement, transferring, feeding, and dressing. [ 21 ] In 2002/2003, the Plaintiff was kept on at the school as a probationary teacher with the same class. At the end of the 2003 school year, comments from others as well as her own thoughts made her examine whether this was where she wanted to teach for the foreseeable future. She was told to try other schools and classes to get an idea of what was available and then decide what she really wanted to do. She took the 2003/2004 school year off from full time work.

This allowed her to substitute teach in many other schools and grades. [ 22 ] She was also able to spend more time on church activities, taught at the seminary, took a church trip to Africa, and continued to organize the SYC. At the end of that year, she realized that she loved the school she had been at and wanted to go back there full time. [ 23 ] In September of 2004, she started full time at the school for special needs children with the same class she had before. In the spring of 2005, she was offered a continuing contract with the school and was very happy about that.

She was then involved in the accident. [ 24 ] She took 3 weeks off for various medical treatments and then returned to the school on modified duties and half days until the end of the school term. She was very tired and did no physical aspects of her job for the rest of that term. She returned to the school again in the fall of 2005 with the same class. She did very little of the physical aspects of the job and instead relied more heavily on her assistants. She was very tired all the time. She did not feel she was doing a good job. She became pregnant in the fall of 2005 and gave birth in June of 2006.

She took a maternity leave from June of 2006 to June of 2007.

[ 25 ] In September of 2007, she returned to the school again part time in a job share position. She felt this was all she could handle. She took over another class which was more challenging as the students were higher functioning and more diverse. Her physical symptoms got worse. She was not coping well emotionally. Although only working part time , she was exhausted when she got home from work. [ 26 ] Ms. Chisholm’s husband took a new position as a pastor for a church in Edmonton and the family moved in the summer of 2008. Her second child was born in January of 2009.

She left her position with the Calgary School board after her maternity leave in 2009. [ 27 ] I heard evidence from two of the assistants who worked with the Plaintiff at the special needs school. One described her, pre accident, as a kind, dedicated, compassionate teacher- one of the best she had ever worked with. She would meet with all the therapists, devise the education program for each child and then usually work with a different student each day to make sure the plan was implemented and working. She was very patient and flexible. The work was also physically demanding.

The Plaintiff as well as the assistants did physiotherapy, feeding, changing and massage daily with the children. [ 28 ] The witnesses indicated that after the accident, the Plaintiff appeared very tired, she could not help lift the children at all, she was slow to move around the classroom and she appeared to be in pain. She seemed overwhelmed and was not able to do all that needed to be done. [ 29 ] The principal of the school indicated that before the accident, the Plaintiff met or exceeded all expectations. She was serious and dedicated, working very well with others in the school as well as the students.

Her evaluations were very positive. Following the accident, she indicated that the Plaintiff performed her duties but it took much more effort to fulfill the expectations of her. She was slower, more distracted and not herself. Relevant Pre-accident Medical Issues [ 30 ] Dr. Lee Pong was the Plaintiff’s family doctor from 1992 when she was 18 years of age until 2002 and then again starting in 2009 after she moved back to Edmonton. Pre-accident, the only thing of note in her records is a note in 1995, when the Plaintiff was 21 years of age that indicated fatigue. [ 31 ] Dr.

Macdonnell was the Plaintiff’s family doctor from 2000 to 2008. She indicated that the Plaintiff was bright, accomplished and somewhat of a perfectionist. She did not see her doctor unnecessarily and followed all directions. Of any note was a minor head injury in 2002 when she fell backwards and bumped her head on a wall. No treatment was required.

In the summer and fall of 2004 she was put on anxiety medication as she was overwhelmed because of home renovations, work, church commitments and fertility disappointments. [ 32 ] The evidence of the Plaintiff was that just prior to and in the summer of 2004, she and her husband had gone on a mission trip to Africa and two other mission trips to Montana and Saskatchewan. She was very involved in church matters, was the director of the SYC camp that summer, they painted their whole condo and did most of the flooring in the condo on their own as well as purchased a new car.

She was feeling very overwhelmed by the end of the summer. That is the reason, she says, that her family doctor prescribed anti anxiety medication. She started at 12.5 milligrams and then increased the dosage to 25 milligrams in December of 2004. She was still on this dosage at the time of the accident in April of 2005. [ 33 ] In September of 2004, she slipped while painting and struck her tail bone on a bedpost. After 3 weeks of physiotherapy, she felt fine to stand and sit. This was the extent of any pre accident medical issues of relevance to this matter. Post Accident Initial Complaints

[ 34 ] The Plaintiff saw Dr. Rakic (filling in for Dr. Macdonnell) three days after the accident. She noted complaints of headaches, neck pain, back pain, sore teeth, facial swelling and a bump on the head. On examination, the doctor noted decreased range of motion in her neck, plus pain in her neck, spine and right knee as well as facial swelling and contusions. She indicated the symptoms were consistent with a WAD II injury. She recommended physiotherapy and massage therapy. [ 35 ] Ms. Chisholm sought physiotherapy with Ms.

Osborne immediately after the accident and for a further 91 sessions between the date of the accident and May of 2008. On initial examination shortly after the accident, the Plaintiff complained of headaches, cervical and lumbar pain, temporal mandibular joint (TMJ) pain, right knee and right wrist pain. [ 36 ] After an objective examination, Ms. Osborne’s impression was that the Plaintiff had sustained a sprain/strain injury to her TMJ, cervical (WAD 3), thoracic and lumbar spine. She also sustained a nerve root compression, a right medial meniscus injury and a right strained wrist. [ 37 ] Ms.

Chisholm continued with regular physiotherapy and continued to see her family doctor, Dr. Macdonnell. The initial complaints following the accident included dizziness, extreme fatigue, neck, lower back, knee and TMJ pain. Dr. Macdonnell thought she may have had post concussion syndrome as well. Current Complaints [ 38 ] Ms. Chisholm indicates that she has had chronic pain since the accident in 2005. Currently, it is activity related such that activity aggravates her symptoms. She suffers headaches on average once a week.

She still gets a sore neck and sore left shoulder from time to time and low back pain if she sits or stands too long. Her right knee is aggravated if walking for long periods of time. She has occasional flare-up of the TMJ however her splint helps with those symptoms. Her major symptom however is fatigue. She is chronically tired all of the time. She also says that her organizational skills are not the same. She has trouble planning, is often late, has trouble focussing and comprehending information.

She knows she cannot go back to being a special needs teacher as it increases her pain level and she is exhausted afterwards. She is not sure she has the organizational skills to teach full time in a regular classroom either. Biomechanics of the Accident [ 39 ] Dr. Wohl, a biomechanical engineer gave evidence about the forces involved in the accident and how those might influence biological structures. His focus was twofold: was the mechanism for injury there in this accident and what was the probability of injury from the accident. He relied on Mr. Sawa’s report with respect to the dynamics of the accident.

He understood there were multiple accidents and therefore multiple changes in velocity. These he said were significant and cumulative. He looked at the following injuries: head and face, neck, TMJ, left shoulder, lower back and right knee. He reviewed the medical information with respect to each of these injuries. He concluded that it was more probable than not that the above injuries were a result of the accident.

The only proviso he mentioned was that it was possible that the joint laxity changes during the Plaintiff’s first pregnancy along with carrying her baby during the summer and fall of 2006 may have aggravated her left shoulder injury. Medical Evidence [ 40 ] I heard from many treating professionals as well as expert witnesses in a variety of areas as they relate to the Plaintiff’s complaints of her injuries after the accident. While I must determine what injuries Ms.

Chisholm suffered as a result of the accident, the prognosis with respect to those injuries, and any impact those injuries have on her functionality, I do so taking into consideration all of the evidence I have heard over 20 days of trial. Often the evidence given by some of these witnesses with respect to injuries and prognosis rely on information they have obtained from others and that information may be limited or inaccurate. It may be necessary for me to prefer the evidence of one witness over another or a combination of both.

In doing so, I do not necessarily discount the evidence I have not accepted but rather, after having heard 40 witnesses, find I have more information than any one witness could have with respect to this matter and the evidence in it’s totality forms the basis of my findings.

[ 41 ] The defence spent a great deal of time pointing out that the notes of various treating and expert witnesses are not all consistent with respect to the Plaintiff’s complaints and symptoms. All of the expert and treating professionals found no issues with validity in testing and they consider the Plaintiff to be a consistent and reliable historian. The only indication of symptom magnification is a comment made by Dr.

Jason that the Plaintiff appears to overly focus on her pain symptoms but he does not see that as an issue of exaggeration or misleading but rather simply a focus on pain and the impact that is having on her functionality. I do not find any discrepancies in reporting to be of significance. Clearly the Plaintiff has been subject to more probing , prodding and testing than any normal person would have to endure. Each expert , in recounting what the Plaintiff has told them, makes brief notes of the factors that are important to their discipline.

Over a period of 6 years post accident , it is no surprise that different things may be noted by different doctors or experts based on their own focus and on how the Plaintiff may be feeling at that time but I take nothing of significance from that. TMJ - Does Ms. Chisholm have TMJ, was it caused by the accident, and does it currently affect her functionality? [ 42 ] Drs. Blair and Marc Bennet were the Plaintiff’s treating dentists. They indicated her dental history prior to the accident was unremarkable other than occasional jaw clicking.

After the accident, the Plaintiff complained of headaches, sore teeth, difficulty chewing, and difficulty opening her mouth wide. The dentists diagnosed her with temporomandibular pain and dysfunction related to the accident. Dr. Blair Bennett indicated that it was his standard practice to assess every patient’s temporomandibular joints as part of every dental exam and there was no mention of such TMJ pain or dysfunction by the Plaintiff prior to the accident. [ 43 ] Ms. Chisholm was prescribed a splint to wear at night that would take the pressure off the TM joint.

She wore the splint nightly until at least April of 2006 and then reduced that to 4 times a week around March of 2007, eventually moving to an “as needed” basis. The dentists were of the view that successful resolution of these injuries was fair if she used the splint regularly. [ 44 ] Ms. Chisholm was seen again by Dr. Bennett after the January 2010 accident. He adjusted her splint and indicated that by April of 2010, with regular use of the splint, she was back to pre 2010 accident condition with respect to her TMJ.

She still has difficulty chewing certain foods and therefore does not eat them at all in case they aggravate her symptoms. The dentist indicated that while her symptoms were better, she was not back to normal function and given this injury, she would be more susceptible in the future to injury of the TMJ. [ 45 ] Dr. Stanleigh gave evidence for the Plaintiff as a dentist with a specialty in TMJ. He conducted an independent dental exam of Ms. Chisholm on September 21, 2010. Her complaints were of TM joint pain, “tired” jaws in the morning, clicking in the TM joints and pain on chewing.

She indicated that the splint helped her initially but no longer helps other than keeping the pain from getting worse. [ 46 ] On a clinical exam, and after obtaining an MRI and a CT scan, Dr. Stanleigh found the Plaintiff had bilateral anterior displaced articular discs in her TM joints. In his view this was in all probability due to the 2005 accident. Treatment had been ineffective and left her with low level chronic problems including the inability to eat certain foods. [ 47 ] Dr. Stanleigh was of the view that a new orthotic was needed and needed to be worn full time in order to recapture the disks.

Once the disks were recaptured, a new orthotic would need to be worn to allow the discs to heal. He was optimistic that this treatment would be successful and that after the healing period, the Plaintiff would be able to wean herself off full-time wear of the orthotic to nightly use only. She would probably need the orthotic for the rest of her life. [ 48 ] Dr. Evans gave evidence for the defence on this issue. He reviewed the relevant medical information but did not examine Ms. Chisholm. He does not disagree that Ms. Chisholm has the TMJ condition she has.

What he says however is that the condition likely predated the accident. He bases this opinion on a note Dr. Bennett made in his chart immediately after the accident that indicated: “CR=CO”. This means generally that the joints are in a comfortable position and that the teeth meet. He says that the Plaintiff’s bite did not change after the accident and therefore the accident did not change the geometry of the joints. The condition therefore must have existed pre accident, probably since the Plaintiff was a teenager and she simply adjusted to it. [ 49 ] Dr.

Stanleigh responds that displaced discs usually do not occur without trauma. He also notes that there is nothing in the notes of her dentist about any pre-existing symptoms or dysfunction. There is no note that she could not chew certain foods before the

accident. [ 50 ] Both Dr. Evans and Dr. Stanleigh agree that the January 2010 accident had no impact on her condition other than perhaps an aggravation of her symptoms. [ 51 ] I accept the evidence of the Plaintiff, her treating dentists, Dr. Wohl, and Dr. Stanleigh on the issue of causation. I am satisfied that it is more probable than not, that the Plaintiff developed TMJ dysfunction as a result of the 2005 accident and that the symptoms still persist to today. The 2010 accident was not the cause of her current problems but simply exacerbated the earlier symptoms that she had from the 2005 accident.

She will require treatment to help with the problem. I accept as a treatment plan that suggested by Dr. Stanleigh short of surgery. I do not find that there is a real and substantial possibility that surgery will be required. Knee Injury [ 52 ] The Plaintiff complained of right knee pain shortly after the accident. Physiotherapy was recommended which she attended for most of her injuries including neck and back pain. Her physiotherapist, Ms. Osborne, had the impression she had a right medial meniscus injury. The Plaintiff attended physiotherapy many times over the next 3 years.

In her last visit before moving to Edmonton in 2008, Ms. Osborne noted, as it relates to the right knee, that the Plaintiff was suffering intermittent sharp right knee pain, as well as increased right knee pain with twisting, kneeling, and standing in high heel shoes. Her right knee was still painful with meniscus tests. [ 53 ] The Plaintiff attended on Ms. Des Roches, a physiotherapist, after the January 2010 accident. She complained of similar injuries to those suffered in the 2005 accident which included a sore right knee. [ 54 ] Dr.

Bray, an orthopaedic surgeon, gave expert evidence on behalf of the Plaintiff. He examined the Plaintiff in June of 2010. He also reviewed a number of documents provided to him along with an MRI conducted in August of 2006 as well as an enhanced MR arthrogram done in June of 2010. He found Ms. Chisholm’s symptoms to be continued right knee pain, weakness, laxity and dysfunction. [ 55 ] After reviewing the 2006 MRI, Dr. Bray was satisfied that it was in keeping with what he observed on his clinical examination of the Plaintiff.

In particular, he noted: “...she has continuing evidence of patellofemoral contusion with anterior knee pain, medial collateral laxity as a result of a likely high grade initial tear, meniscal capsular injury is suggested both clinically and by MRI evidence suggesting ongoing persistent damage or degeneration of tissues that have been injured and not gone on to heal appropriately.

She also has complex regional soft tissue pain along the soft tissue column of the right knee possibly as a result of some injury to saphenous nerve at the time of her MCL sprain and/or contusional injury.” [ 56 ] He believes, given the time that has passed from the date of the accident, that she will continue to have weakness, pain and dysfunction in the knee. He suggests she will require physiotherapy, massage and exercise programs and possibly arthroscopy in the future. He does not believe surgical intervention will be required however the risk is higher than it would have been without the accident.

He is of the view that these injuries resulted from the 2005 accident. [ 57 ] Subsequent to his first report, Dr. Bray had an opportunity to review the June 2010 MR arthrogram. He indicated that it showed resolution of the previously noted meniscal capsular injuries. It does not however tell you how the knee feels, just how it looks. He indicates there is no effective tool for determining the nature and extent of pain in soft tissue after an injury. The subsequent MR did not change his view of Ms.

Chisholm’s injuries and he indicated that further investigations of her symptoms may be necessary such as a further MRI, X-rays, CT scans, and possibly ultrasound and bone scans. [ 58 ] Dr. VanZuiden gave evidence for the Defendant in this area. He examined the Plaintiff in October of 2009, before the January 2010 accident. Her symptoms at that time, as they relate to the knee, included right knee pain over the medial aspect of the patella, worse with standing. She stated the knee was always painful and getting worse although the symptoms could resolve for a week or two and then

recur. [ 59 ] On physical examination, he noted she was able to walk heel to toe without difficulty. Dr. Hoyer who attended the examination as the Plaintiff’s medical nominee indicated that she was “unable to walk on her heels. When she attempted to do so, she took 3-4 very unsecure and staggering steps and ended up on both feet”. Dr. VanZuiden noted as well that she was unable to properly squat because of her right knee. He noted pain and tenderness to palpitation of the right knee around the patella. On a pain questionnaire, Ms. Chisholm’s answers indicated a mild perception of chronic pain. [ 60 ] Dr.

VanZuiden concluded that the Plaintiff did suffer a contusional injury to her right knee in the accident but he was of the view after his examination that there were no objective findings with respect to the knee and that she therefore had no significant knee problem or impairment. Dr. VanZuiden did not examine either of the MRIs done in 2006 or 2010. [ 61 ] There does not appear to be any disagreement that the Plaintiff injured her right knee in the accident. When examined in October of 2009, she indicated symptoms persisted and Dr. VanZuiden noted difficulties in squatting and made note of her pain complaints.

She continued to suffer pain in the knee after the accident in 2010. [ 62 ] I find that the Plaintiff’s right knee injury resulted from the accident in 2005 and was aggravated by the accident in 2010. She continues to suffer pain in the knee usually related to activities. This will likely continue into the future. It is unlikely she will require surgery. Treatment will consist of, on an as needed basis, further diagnostic scans as well as physiotherapy and massage. Cognitive Difficulties [ 63 ] Ms. Chisholm indicates that she continues to suffer from what she perceives as cognitive impairment.

She found herself easily overwhelmed after the accident. She has trouble planning, organizing and concentrating. She has trouble comprehending information she sees or hears and problems with her memory. Her husband notes that she is not as organized and efficient as she used to be. Her greatest difficulty is overwhelming fatigue. [ 64 ] Ms. Chisholm was seen by Drs. Hashman and McIlwrick, both psychiatrists , and Drs. Jason and Selland, both neuropsychologists. They have each provided reports and in some cases rebuttal reports.

Each of these witnesses was given a great deal of documentary information to review as well as their clinical interview and testing. [ 65 ] Dr. Hashman testified for the Plaintiff. He diagnosed the Plaintiff with chronic post traumatic stress disorder (PTSD) , stressors related to chronic health care issues and moderate impairment in social and occupational functioning. He also believes there is support for the diagnosis of a mild traumatic brain injury (MTBI).

He did not find any significant pre-accident history which would account for these diagnoses, he found the Plaintiff was not malingering and that she was a credible and reliable historian. He found his testing yielded valid, credible and reliable results. Her prognosis is guarded. Dr. Hashman recommends education, medication, and psychotherapy or counselling to deal with these issues. [ 66 ] Dr. McIlwrick testified for the defence. She found no clinical evidence to support a diagnosis of post traumatic stress disorder.

She found the Plaintiff had some mild difficulty in social and occupational functioning but was generally functioning pretty well. She found the Plaintiff was a generally anxious person but not one with disordered anxiety or a serious psychiatric illness or mental disorder. She believes the Plaintiff has a long standing anxious personality style and that is therefore her response to routine life stressors. She also believes she may be genetically predisposed to anxious symptoms. [ 67 ] Dr. Hashman attended the examination of Ms. Chisholm by Dr. McIlwrick as a medical nominee of the Plaintiff.

He noted that the entire assessment took 1 hour and 55 minutes with 1 hour and 35 minutes of that taken up with prescripted questions asked of the Plaintiff by Dr. McIlwrick’s nurse. Dr. McIlwrick was sitting off to the side making note of the answers. She then posed some questions to the Plaintiff for the remaining 13 minutes of the interview. The notes taken by Dr. Hashman at that assessment confirmed again in his view that the Plaintiff had ongoing moderately impairing symptoms of post traumatic stress disorder. He disagrees that the Plaintiff has a

long standing anxious personality. He found, as did Drs. Jason and Selland, that there was really no pre-accident mental history of note. The objective and valid psychological testing found symptoms of PTSD. Dr. Hashman also disagrees with Dr. McIlwrick on her Global Assessment of Functioning (GAF) . He, along with Drs. Jason and Selland found a moderate, not mild, level of symptoms and resultant impairment in functioning. [ 68 ] Dr. Selland testified for the Plaintiff. She met with the Plaintiff on two occasions, once in January of 2006 and again in March of 2009.

She was of the view that the Plaintiff had suffered from a mild traumatic brain injury (MTBI) and also had symptoms of PTSD although she did not meet the full criteria for PTSD. She performed a number of psychological tests on the Plaintiff and although most of the results showed average or superior functioning, she did note severe impairment on higher level reasoning and executive planning abilities. In 2009, a number of the tests were administered again and while most of the test scores improved, some got worse. In addition, Dr. Selland administered a Frontal Systems Behaviour Scale.

She indicated the overall ratings were elevated to the borderline impairment range. This test is primarily subjective and does not have built in validity scales but Dr. Selland found that it is still good information to use along with other tests and the results corresponded with symptoms the Plaintiff indicated that she was suffering. [ 69 ] Dr. Selland was of the view that the Plaintiff continues to suffer symptoms from the MTBI which was a result of the accident. This , in addition to the ongoing pain, contribute to her cognitive difficulties including decreased attention, concentration and memory function.

She does not believe the Plaintiff will be able to return to work as a special needs teacher. [ 70 ] Dr. Jason gave evidence for the defence. He met with Ms. Chisholm for several hours each day over 3 days in September of 2009. He was also of the view that the Plaintiff had symptoms of PTSD and thought it likely that the Plaintiff had PTSD after the accident but that the symptoms have partially resolved at the present time. He also believed she met the criteria for having suffered a MTBI. He noted that in 95-99% of the cases, symptoms of a MTBI resolve in a short period of time. Dr.

Selland on the other hand was of the view that the incidence of ongoing difficulties arising from a MTBI could approach 5% of those suffering from such an injury. [ 71 ] Dr. Jason was of the view that there are factors other than the injuries from the accident that are impacting Ms. Chisholm’s functioning. This includes distraction associated with anxiety, depression and pain. Other factors may include her pregnancies, child care, and a move to Edmonton. His testing of the Plaintiff indicated a number of tests where there was improvement over previous tests and others where the results were worse.

In his view, the inconsistent results were more likely to come from distraction associated with symptoms of anxiety, depression and pain, rather than from the MTBI. He would have expected more consistent results with the testing if the ongoing symptoms related to brain dysfunction from the MTBI. He believes Ms.

Chisholm would benefit from psychological counselling with respect to depression, anxiety and techniques of pain management. [ 72 ] After having reviewed all of the evidence with respect to cognitive difficulties, I find that the Plaintiff suffered from a MTBI as well as PTSD ,which has partially resolved, as a result of the accident. I find that she continues to have some cognitive difficulties which arise not from the MTBI but from ongoing chronic pain and her focus on that pain along with other stressors in her life including a move, and the raising of two young children.

Her ability to cope with these non accident stressors has been affected by the accident. I find that any pre accident history is not related to her current symptoms or dysfunction. I am satisfied that psychological counselling will assist her in dealing with her pain and improving her functionality in terms of her anxiety, fatigue, and perceived cognitive difficulties. Vocational Assessment [ 73 ] Dr. Berendt gave evidence on Ms. Chisholm’s vocational capabilities. He agreed that the Plaintiff was focussed on her physical symptoms and is emotionally reactive to those symptoms.

He felt as well that the test score variability between Drs. Selland and Jason was likely related to the effects of fatigue, pain ,or anxiety. It is not unusual for persons suffering from these symptoms to have memory problems. He notes that the Plaintiff’s pain complaints have existed for a number of years with varying degrees of severity and that this is likely to continue into the future. This will affect her employability. Other testing showed a high level of anxiety and of depression. He believes as well that she has some symptoms of PTSD. [ 74 ] Dr.

Berendt indicates that there is no evidence that the Plaintiff’s minor pre accident anxiety issues in any way affected her ability to perform at work or in other areas of her life. At most, she may have had some vulnerability in responding to stress. He indicates that absent the accident, the Plaintiff likely would have worked part time or not at all until her children both reached school age and then after that, she would have worked full time. As a result of the accident related difficulties, the Plaintiff suffers from chronic pain, chronic

anxiety, depression, and chronic symptoms of PTSD. This has made it more difficult for her to tolerate other stressors in her life. Post accident, he does not believe she will be able to return to work in the immediate future. He believes she may be able to return to full time work when her children are school age with proper pain management and appropriate psychological counselling however with a 10-15% decrease in income. If her pain and other symptoms do not change, he believes she will only be able to return to part time work and even that may be difficult for her. Chronic Pain [ 75 ] Dr.

Rocheleau, a physiatrist, examined the Plaintiff in March of 2009. After a review of other medical information, an interview with the Plaintiff to ascertain her subjective complaints and then an examination of her, he found she had pain in the ligaments of the lower back, bilateral jaw pain, right knee pain involving the medial aspect of the joint, neck pain and general paraspinal tenderness.

In his view, the accident of 2005 caused ongoing musculoskeletal difficulties which are now chronic involving the neck and spinal areas, recurrent headaches, persistent pain related to the medial aspect of the knee, residual jaw difficulties, probable MTBI and PTSD. In his view this resulted in a 10% whole person impairment. He believed the prognosis was poor for resolution of her symptoms.

Summary of Injuries [ 76 ] Upon a review of all of the medical and other professional evidence, I find the following facts:

a) The accident of 2005 was the cause of the Plaintiffs’s right knee problems, her TMJ and the chronic pain and fatigue which I find that she has. Her perceived cognitive difficulties are a result of a combination of accident and non accident factors. The injuries from the accident in particular the chronic pain have made her less able to deal with non accident stressors.

b) The Plaintiff suffered a MTBI and suffers from partial symptoms of PTSD. Her perceived cognitive difficulties at the present time are not related to the MTBI.

c) The Plaintiff’s pre accident medical history does not show anything of significance which would be the cause of her current symptoms. Despite some minor injuries and reports of fatigue pre accident, the Plaintiff was a highly functioning individual able to balance many activities including school, work, and a variety of extra curricular activities without difficulty. There is nothing in her history in my view to indicate a “crumbling skull”. At most she would be a “ thin skulled” Plaintiff.

d) The accident in 2010 aggravated the pre-existing injuries from 2005. It was not the cause of her current symptoms. Her symptoms from that accident resolved within about 3 months of the accident. The injuries from the first accident simply made her more vulnerable to injuries from subsequent accidents. General Damages [ 77 ] The Plaintiff seeks general damages in the range of $150,000 - $175,000. They rely on the following decisions: Tsalamandris v. MacDonald, 2011 BCSC 1138 (general damages of $100,000) and Russell v. Turcott , 2009 ABQB 19 , supplemental reasons, 2009 ABQB 236 (general damages of $115,000).

In Tsalamandris , the Plaintiff was involved in two accidents and found to have soft tissue injuries, chronic pain and depression all caused by the accidents. She was also the mother of young children and it was found that the accident related injuries made it more difficult for her to deal with other stressors in her life. In Russell , the Plaintiff suffered a moderate to severe whiplash injury, injury to her jaw, chronic pain and fibromyalgia. [ 78 ] The defence takes the position that the Plaintiff was a “crumbling skull” at the time of the 2005 accident as she had anxiety

issues before the accident and likely would have continued to suffer from anxiety in the absence of the accident. Therefore, they argue,the accident simply aggravated this pre-existing condition. [79] The defence refers to the following decisions. In Davidson v.

Patton, 2004 ABQB 681, aff’d 2008 ABCA 65 , 2008ABCA65, 925 A.R. 186 (general damages of $65,000 in 2011 dollars including loss of housekeeping capacity), the Plaintiff sufferedfrom a dislocated and fractured right toe, lacerated finger, multiple abrasions and contusions, burns to both hands, nervous shock, PTSD,and a softening of the cartilage in her right knee. She had other muscular, ligamentous and tendon injuries to her knees and spine. InImbir v.

Barren, 2006 ABQB 419 (general damages of $73,000 in 2011 dollars) there were soft tissue injuries, headaches, a TMJ injury,fibromyalgia, insomnia, major depression, severe anxiety, elements of PTSD, poor memory and concentration, and pain disorder. Thecourt believed there was some exaggeration of symptoms and that the pain should have resolved within 3 years. Two other decisionsreferred to are Seres v. Ramirez, 2006 ABQB 846 (general damages of $67,000 in 2011 dollars) and Dear v. Styre, 2002 ABQB 522, 318A.R. 115 (general damages of $44,000 in 2011 dollars). [80] The defence raises the decision of Byron v.

Larson, 2003 ABQB 253, varied on other grounds, 2004 ABCA 398, 357 A.R. 2dupheld by the Court of Appeal, wherein Justice Kent commented that she felt the Plaintiff was exaggerating her pain but with nointention to do so. It was an unconscious exaggeration because of her focus on her pain. This was commented on by Dr. Jason in thiscase. No one however, including Dr. Jason, gave evidence that Ms. Chisholm was exaggerating her symptoms. What he did say was thatshe has chronic pain and as a result she focuses intently on her pain which causes other symptoms such as anxiety and depression toappear.

He termed it a “vicious cycle”. [81] The Defendant suggests appropriate general damages in this case are in the range of $65,000 to $75,000 including an amountto compensate for the loss of housekeeping services. [82] Having considered all of the cases referred to me, I am satisfied that an appropriate award for general damages in this case isin the sum of $90,000. Pecuniary Damages

a) Loss of Housekeeping Services [83] The Plaintiff claims past loss of housekeeping services as well as loss of housekeeping services going forward. She bases herclaim on the report of Ms. Tory, the occupational therapist, and Mr. Aldridge, the economist who quantified the items Ms. Toryindicated that Ms. Chisholm needed in the way of past and future care.

The Plaintiff quantifies her loss of daily housekeeping serviceswith reference to the fact that in 2010 her sister in law started paying for a housekeeper for her which costs the sum of $320 per month.Her sister in law said that she saw how much the Plaintiff was struggling trying to manage the house and two young children with thepain she was still suffering from the accident. It should be noted that this offer to pay for housekeeping arose a few months after the2010 accident when the Plaintiff was undergoing treatment for the aggravation to her injuries.

In addition, the Plaintiff seekscompensation for spring and fall cleaning, window cleaning, movers, and handyman costs. The past loss claim is $16,978 inclusive ofpre-judgment interest and the future loss claim is in the sum of $148,389. [84] The Defendant argues that Ms. Chisholm herself along with other experts who had asked her about housekeeping all confirmthat she was and is able to do her household chores but they cause her pain and she has to do them slower than before. She has to paceherself. With the added responsibility of child care, some things that are not a priority simply do not get done.

In addition to that, muchof the outside work was historically done by her husband before the accident and continues to be done by him to this date. The Plaintiffacknowledges not doing the extra seasonal work and handyman work before the accident. The Defendant argues that the loss ofhousekeeping services should not be quantified but should simply be added to the general damages. [85] The Plaintiff, along with her husband did all of the housekeeping from the date of the accident until May of 2010 when hersister in law made the offer she did. That offer has been a wonderful help to Ms.

Chisholm and her husband but in my view, the workperformed by the housekeeper is more extensive that the assistance that Ms. Chisholm would require as a result of injuries from theaccident. She has two young children to look after now and is also working part time. She did not do the heavier work before the accidentand was unlikely to do so in the future particularly because of her fear of ladders.

[ 86 ] However, even though the Plaintiff was able to do the housekeeping on her own with the help of her husband before the housekeeper was hired, it took her additional time to do it. This was partly related to her injuries and partly related to having young children around and working from time to time. She is entitled to compensation, as a pecuniary loss, for the extra time it has taken her to do her housekeeping as a result of her injuries from the accident. [ 87 ] I have taken into consideration that Ms.

Chisholm did virtually no seasonal or window cleaning before the accident as well as limited repairs and maintenance. She also did all of her own daily housekeeping until 2010 although it caused her pain and took her additional time. I will set past loss of housekeeping at $4,250 inclusive of pre-judgment interest. I set future loss of housekeeping services at $35,000 in which figure I have already included a discount rate.

b) Out of Pocket Expenses [ 88 ] I understand that the parties have agreed on these expenses. They may contact me if there is an issue in this regard.

c) Cost of Future Care [ 89 ] The Plaintiff seeks compensation for the loss of future care which is set out primarily in the report of Ms. Marni Tory. Mr Derek Aldridge quantified the present discounted value of the recommended future care costs ( less household management) at $136,105 [ 90 ] I asked counsel to each prepare a list of the items recommended by Ms. Tory and point me to the evidence which either supported or did not support that item as a cost of future care. Rather than go through them one by one, I will group them into categories with my comments thereon and then provide an amount which I find will appropriately compensate Ms. Chisholm for these costs.

i) Medical Costs [ 91 ] There are four prescriptions or over the counter medications claimed by the Plaintiff. She continues to use them all from time to time. Having found that the Plaintiff suffers from chronic pain and extreme fatigue related to the accident, I am satisfied that the medication is required.

I accept the defence position with respect to this medication however in terms of cost as the generic versions are much less expensive and in terms of usage given the testimony of the Plaintiff. [ 92 ] There was a recommendation for monthly physiotherapy for the Plaintiff for the rest of her life for pain control. There is a dispute about whether this is needed. It was not recommended by a doctor between 2007 and 2010 when the second accident occurred. No physiotherapy was taken between the time of the move to Edmonton in the summer of 2008 and the accident of 2010.

I am not prepared to set anything aside for that as the Plaintiff indicated she could manage with medication, heat, stretching, and massagers. [ 93 ] There were a number of pieces of home exercise equipment which were recommended. The defence does not take issue with most of those items other than the timing of the replacement. The cost of this equipment is minimal. I will include something in my overall award for these items. [ 94 ] The Plaintiff claims the annual cost of a YMCA membership for life.

Regular exercise was recommended by a number of professionals which included the use of home exercise equipment mentioned above so that the Plaintiff could exercise at home. The Plaintiff joined a gym once in 2007. She went a few times and then quit. She received a gym membership in March of 2010. She went once a month for 10 months and then quit because she could not find the time to fit it in. She has a treadmill at home along with a recumbent bike. I find the gym membership unnecessary in light of the equipment the Plaintiff now has and the recommendations made for exercise.

She would benefit from the services of an instructor to set her up in a program and teach her how to use all of the equipment properly. I have included funds for this service in my ultimate award.

[ 95 ] As indicated above, I accept the evidence of Dr. Stanleigh as to the condition of Ms. Chisholm’s jaw and that the TMJ was caused by the accident. Dr. Stanleigh recommends a conservative course of treatment with more invasive procedures such as surgery if need be. I am prepared to accept his conservative treatment recommendations. [ 96 ] While I accept that the knee injury occurred as a result of the accident I am not prepared to accept a knee brace as a cost of future care. It has not been employed in the past, has not been prescribed by anyone, and is simply mentioned by Dr.

Bray in his report, as something that might help. [ 97 ] A psychological assessment is not required given all of the assessments the Plaintiff has been through however both parties agree with the recommendations for further counselling and psychotherapy to deal with issues of stress, coping, symptoms of PTSD, anxiety and techniques of pain management. ii) Aids to Daily Living [ 98 ] There are a number of items identified by Ms. Tory. The evidence does not support that any of these items ( other than lumbar support) were recommended, or necessary. Many are items that are in any home.

No need was identified by the Plaintiff or other medical practitioners. I will not provide anything in this area other than for the lumbar support. iii) Leisure and Vocational Assessments [ 99 ] I am not satisfied that either of these assessments are necessary. In particular, the Plaintiff is a school teacher, wants to continue teaching, and there is no indication she can no longer teach. How much she can teach is an issue I will address under loss of income/capacity. I am not satisfied there is any need for a vocational assessment.

An evaluation of her workplace site would be a benefit to her and I have allowed a cost for this in my decision. iv) Transportation Costs [ 100 ] The major claim in this area is the annual cost of an auto club membership as Ms. Tory says it may be difficult for the Plaintiff to change a tire if she had a flat tire or walk for assistance. This assumes the Plaintiff would have done this before the accident. There is no evidence of this. There is also a claim for the cost of mileage to medical appointments and assessments.

This would be minimal in my view given my decisions above as to the kind of treatments the Plaintiff would need on an ongoing basis. [ 101 ] In

summary, I am prepared to allow the sum of $45,000 for the costs of future care. This includes GST and represents the current discounted value of these costs with the appropriate multiplier included where necessary.

c) Loss of Income/Earning Capacity [ 102 ] The Plaintiff claims a pre-trial loss of income in the sum of $112,226 and a discounted loss of future income of between $571,774 and $683,348 depending on certain assumptions. The assumptions are ( absent the accident) that Ms. Chisholm would have returned to work full-time in September of 2007 rather than part-time after her maternity leave, would have taken maternity leave for the 2008/2009 school year, would have returned to work part-time in Edmonton in September of 2009 and continued with that until her youngest child was in grade 1.

At that time she would have returned to full time work as a school teacher until normal retirement age. [ 103 ] I will deal first of all with the pre-trial period. There was no loss of income for the 2005/2006 year as the Plaintiff worked full time. She was then on maternity leave until September of 2007 when she went back to teaching part time. She indicated that she went into a job share position. Some of those working with her indicated it was because she had a young child at home and wanted to spend more time with her child.

She had already worked full time for a year right after the accident before she had her first child and therefore,

there is no reason to assume that her choice to work part time in 2007/2008 was related solely to the accident. There is no question that she was feeling pain and found it difficult to do certain physical things with the students at school. She tired more quickly. She had an infant at home and also became pregnant with her second child during this year. I am satisfied that the Plaintiff would have returned to work part time as she did in 2007/2008 even without the accident. [ 104 ] She then went on maternity leave again for the 2008/2009 school year.

This was after she moved to Edmonton because her husband took a position there. She resigned effective the end of her maternity leave citing as a reason the move to Edmonton. She has never contacted the Edmonton School Board about a position with them. Originally she indicated it was because she did not think they would be interested in hiring her because she was pregnant. Since the move to Edmonton, the Plaintiff has continued to work at the summer SYC camp, and works part-time as a receptionist at the church where her husband is the pastor.

She has done some limited substitute teaching at her son’s pre school and has put her name on the list for a position there as she would like to do more. The Plaintiff has indicated that she can only work limited hours as a receptionist as she does not have the energy to do more. If she works more, the pain level increases which again decreases her ability to take on more.

She also has the full time responsibility for the house and the children. [ 105 ] There is ample evidence not only from the Plaintiff but from many experts who interviewed her over the course of this litigation, that the Plaintiff expressed an interest in staying at home with her children until the youngest was in school. She has not contacted the school board to find out what might be available. I am satisfied that the Plaintiff would have remained at home with the children until the youngest child reached school age other than the part time work she is currently doing for the church.

As such, there is no pre-trial loss of income. [ 106 ] With respect to future income, the claim is based on the fact that the Plaintiff will return to work part-time as a school teacher after her youngest child starts school rather than full time as would be expected if she had not been involved in the accident. The Plaintiff bases these assumptions primarily on the report of Dr. Berendt. He indicated that although she was able to return to work full time after the accident, the birth of two children made it difficult to fulfill those obligations and work full time.

She was only barely able to tolerate part-time teaching. Dr. Berendt concluded that her work productivity had decreased as a result of her chronic pain and psychological difficulties secondary to the motor vehicle accident. He anticipated a decrease in earnings of between 10 and 15 per cent if she were to return to full-time employment. He felt she would be able to work on a part time basis once her children were a little older. Her ability to return to full time work would be mediated by pain and her response to psychotherapy.

If she did not improve with the therapy or counselling, then part- time employment was the most likely scenario. [ 107 ] The Plaintiff says that the court should simply calculate the difference in her income between that of a full-time teacher and that of a part-time teacher and multiply that by the number of years to likely retirement. Consideration would have to be given to retirement dates and discount rates to determine the amount she should be compensated.

Those amounts are set out above. [ 108 ] The Defendant says that there are so many other things going on in the Plaintiff’s life including having two young children, that her future career prospects are unknown. Ms. Chisholm indicated in her testimony that after the accident and after the birth of her first son, she was not sure she could balance being a mother and a full time teacher and so she decided to go back to work part-time.

She has not applied to work with the Edmonton School Board although she would be qualified to teach any type of class, not just special needs children where more physical work is involved. She has enjoyed being a substitute teacher in her son’s preschool and has thought about working there full time. [ 109 ] Dr. Berendt, Dr. McIlwrick, Dr. Hashman, and Dr. Jason have all indicated that counselling and psychotherapy will assist the Plaintiff in dealing with the competing stressors in her life as well as the symptoms of PTSD and her chronic pain. Dr.

Berendt indicated a return to full time work would be mediated by her response to pain management and psychotherapy. Dr. Jason is of the view that the Plaintiff needs to learn to deal with her focus on her pain. That focus prevents her from moving forward and looking at different options. Counselling will assist with that. [ 110 ] I am satisfied that this is a case where compensation for loss of capacity is appropriate rather than a future loss of income. I am not satisfied after having heard all of the evidence that the Plaintiff will be unable to work full time in the future.

She has continued to work in both paid and unpaid, volunteer positions. Counsel for the Plaintiff agrees that she can work part-time as a teacher but argues that she would have worked full time absent the accident.

[ 111 ] The Plaintiff is a very bright, talented individual. She is very involved in her church. She has continued to do volunteer activities for her church throughout the time following the accident although she has indicated that it is less than before as a result of the pain and fatigue suffered from the accident. She has two young boys to look after full time as she is the primary caregiver. She is also responsible for all of the at home matters including cooking and cleaning although she now has a housekeeper to assist in that regard. [ 112 ] Ms. Chisholm may also work full time at some time in the future.

She has indicated an interest in teaching at her son’s preschool and has applied for that position. She has not applied for a position with the Edmonton School Board so we do not know what might be available for her there. Various medical experts have indicated that psychotherapy and counselling may assist her in dealing with managing the chronic pain and with helping her organize her life to be more effective and change her focus from her pain and PTSD symptoms. [ 113 ] As a result of all of these uncertainties, I cannot find that Ms. Chisholm will suffer the loss of a future defined income stream.

In my view, it is difficult if not impossible to determine what lasting impact her injury will have on her future earnings. She may or may not be able to return to full-time work. It is also difficult to determine, based on all of the evidence, whether Ms. Chisholm would have returned to work full-time in any event.

Without pointing to any particular expert other than those I have referred to above, it is the totality of the evidence over four weeks of trial which lead me to the conclusion that an award of loss of earning capacity is appropriate here rather than the calculation of a defined loss. [ 114 ] The test is whether there is a real and substantial possibility that the Plaintiff has been rendered less capable of earning an income from many sources of employment, is less marketable to potential employers, and is less able to take advantage of opportunities that may become available.

I find that she is less capable as a result of the injuries suffered in the accident. She is still a relatively young woman with many working years left after her youngest child has started school. Regardless of her efforts and the results of managing her pain and symptoms, she will continue to suffer some fatigue and pain from time to time which will impact her ability to earn income going forward. In my view, it is appropriate to provide a significant award for this loss. [ 115 ] The Defendant has suggested an award of between $30,000 and $40,000 for loss of earning capacity.

In my view, this does not adequately reflect an appropriate award for the loss of this capital asset. I would award the sum of $125,000 for loss of earning capacity. Tax Gross Up [ 116 ] The parties agree that there should be a tax gross up on the future cost of care and future housekeeping awards and so they may add that to the award. Costs [ 117 ] The parties may speak to me with respect to the issue of costs if necessary. Heard on the 21st day of November, 2011. Dated at the City of Calgary, Alberta this 3 rd day of February, 2012.

C.L. Kenny J.C.Q.B.A. Appearances: Norma C. Mayer for the Plaintiff Taryn Burnett/ Katherine Stys for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice C.L. Kenny _______________________________________________________ Page: 13; Paragraph: [70]; Line 7: Delete: 50% Insert: 5%