Shallow v. Dyksterhuis, 2013 BCSC 1761

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Shallow v. Dyksterhuis, 2013 BCSC 1761 Date: 20130926 Docket: 10-1614 Registry: Victoria Between: Lacey Dawn Gail Shallow Plaintiff And Bernard Thomas Dyksterhuis Defendant Before: The Honourable Mr. Justice Kelleher Reasons for Judgment Counsel for the plaintiff: B.J. Flewelling Counsel for the defendant: K. Armstrong S. Stewart Place and Date of Trial: Fort St. John, B.C. January 21 - 25, 2013 Vancouver, B.C. June 24 - 28; July 3, 2013 Place and Date of Judgment: Victoria, B.C.

September 26, 2013 [ 1 ] This trial concerns a claim by Lacey Shallow that the defendant, Bernard Dyksterhuis caused a collision and that she was injured as a result. Since the commencement of the action the plaintiff married. Her name is now Lacey Orcutt. [ 2 ] The issues are first, whether Ms. Orcutt was partially to blame for the accident; second, if so, the extent of her responsibility; and third, the measure of her loss. [ 3 ] The accident took place on March 24, 2008 in the area of Charlie Lake, northwest of Fort St. John, B.C. Ms. Orcutt was driving south on the Alaska Highway, Highway 97.

She intended to turn left onto an access road, two kilometers south of the junction with Highway 29. [ 4 ] Highway 97 has one southbound lane in this area. However, there is a right turn lane and a left turn lane, as well as the through lane, at this intersection. The intersection is not controlled by a traffic light. The northbound lanes and southbound lanes are separated by a solid double yellow line, making it a no passing lane. [ 5 ] The accident occurred at 8:30 a.m. There was daylight. The roads were covered with snow and it was continuing to snow. Visibility was satisfactory. Ms.

Orcutt testified that she had her left turn signal on. As she commenced her turn, the defendant’s vehicle struck her vehicle as he was attempting to overtake her by passing her on the left. [ 6 ] The defendant testified that he was driving south in a loaded logging truck. He had started work at 12:30 a.m. that day and was hauling the logs from an area north of the accident scene to a mill south of Fort St. John. This was his second load of the day. [ 7 ] Mr. Dyksterhuis testified that he was travelling in the one southbound lane. He noticed the plaintiff’s car driving south in front of him.

He saw the vehicle slow down and saw that the brake lights were coming on and off. Mr. Dyksterhuis knew that Ms. Orcutt was at an intersection, but assumed, mistakenly, that there was no left turn possible there. He presumed, then, that the plaintiff was either turning right or stopping on the highway. [ 8 ] The defendant decided it was safe to pull out and pass her on the left. As he came up on her left, she began her left turn. His front bumper struck her vehicle. [ 9 ] Ms. Orcutt’s evidence is that she stopped for a few seconds to allow two northbound vehicles to pass her and then turn left.

However, she stated during her examination for discovery that she did not come to a stop before commencing her turn. As well, she later told her physician that she was travelling very slowly in the process of making a left turn. [ 10 ] Ms. Orcutt feels that she was in the left turn lane but said in cross-examination that because of the snow, she could not “know for sure” that she was in the left turn lane. She said it was “possible” but “very unlikely” that she was in the through southbound lane.

[11] Donna Lessard witnessed the accident. She was stopped on the access road on the east side of Highway 97, waiting to turn leftor south onto Highway 97. She was waiting for Ms. Orcutt’s vehicle to turn left in front of her. She is certain that Ms. Orcutt had her leftturn signal on. She said Ms. Orcutt had not started her turn when the accident occurred. [12] Robin Brekkas testified that he was driving northbound on Highway 97. He estimated he was some 250 metres away when heobserved Ms. Orcutt’s vehicle and the logging truck. He said the plaintiff’s left turn signal was on.

He saw her turning left and saw thelogging truck hit the car. He testified he believes that she was in the left turn lane. He said that he could not “guarantee” that becausethe snow covered the road markings. LIABILITY [13] Several sections of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 are relevant. Sections 155, 157, 159 and 170 provide asfollows: Highway lines 155

(1) Despite anything in this Part, if a highway is marked with (

a) a solid double line, the driver of a vehicle must drive it to the right of the line only, (

b) a double line consisting of a broken line and a solid line, (

i) the driver of a vehicle proceeding along the highway on the side of the broken line must drive the vehicle to the right of the doubleline, except when passing an overtaken vehicle, and (ii) the driver of a vehicle proceeding along the highway on the side of the solid line must drive the vehicle to the right of the doubleline, except only when finishing the passing of an overtaken vehicle, and (

c) one single line, broken or solid, the driver of a vehicle must drive the vehicle to the right of the line, except only when passing anovertaken vehicle. (2) Subsection (1) (b) (

i) and (

c) do not apply if a driver is avoiding an obstruction on the highway and first ascertains that the movementcan be made with safety and without affecting the travel of any other vehicle. … 157(1) Except as provided in

section 158, the driver of a vehicle overtaking another vehicle (

a) must cause the vehicle to pass to the left of the other vehcle at a safe distance, and (

b) must not cause or permit the vehicle to return to the right side of the highway until safely clear of the overtaken vehicle. … Passing on left 159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can doso in safety. … 170

(1) If traffic may be affected by turning a vehicle, a person must not turn it without giving the appropriate signal under sections 171and 172.

(2) If a signal of intention to turn right or left is required, a driver must give it continuously for sufficient distance before making the turnto warn traffic.

(3) If there is an opportunity to give a signal, a driver must not stop or suddenly decrease the speed of a vehicle without first giving theappropriate signal under sections 171 and 172. [14] Counsel referred me to a number of decisions concerning liability for accidents which occurred in similar circumstances: Smithv. Bileck, 2006 BCSC 989; Pipe v. Dusome, 2007 BCSC 1066; Eccleston v. Dresen, 2009 BCSC 332; Stewart v. Fedderly, 1985 B.C.J.No. 394 (SC); Kingsfield v. Powers, 2012 BCSC 562; Langley v. Heppner, 2011 BCSC 179, and Samograd v.

Collison, (BC CA), 1995 17 B.C.L.R. (3d) 51 (BCCA). [15] In Samograd, Finch J.A., as he then was, comments on the responsibility of overtaking drivers at para. 63: His “greater obligation” to ensure that he could pass in safety arose from the circumstances of the case rather than from any higher legalduty, statutory or otherwise. Recently, Justice Dillon of this Court reiterated this “greater obligation” principle in Pipe at para. 11: Apportionment of liability in this situation requires consideration that the overtaking driver generally bears greater obligation to ensurethat he can pass in safety…

[ 16 ] These cases contain useful statements of principle but liability in motor vehicle cases is very much determined on their individual facts. The question really comes down to who had the better opportunity to see the potential for a collision and therefore a greater opportunity to avoid it. [ 17 ] There are two conflicts on the evidence to be resolved. First, where the plaintiff was positioned on the highway before she began her turn; and second, whether her left turn signal was on. [ 18 ] Ms. Orcutt testified that her left turn signal was on. This is corroborated by the evidence of Mr. Brekkas and Ms.

Lessard. [ 19 ] There was a suggestion by the defendant that although he did not see her turn signal, it may have been obscured by snow. [ 20 ] This is highly unlikely. Ms. Orcutt testified that she brushed the snow off the car before leaving her home. She had only travelled a few kilometres. Her evidence in this regard is corroborated by her mother, who observed her clearing snow off the car before leaving home. [ 21 ] As to the position of the vehicles, Ms. Orcutt and Mr. Brekkas both said that they could not “guarantee” that her car was in the left turn lane, but they both believed it was.

Any uncertainty was based on the fact that the lane markings were obscured by snow. [ 22 ] Ms. Lessard, on the other hand, was in perhaps the best position to view Ms. Orcutt’s vehicle. Her evidence is that the plaintiff’s vehicle was in the left turn lane and her turn signal was on. [ 23 ] I find that Ms. Orcutt was positioned in the left turn lane and her turn signal was on. [ 24 ] The recent case of Eccleston is factually similar in that the accident occurred when the plaintiff was being overtaken on the left in the process at making a left turn.

Justice Barrow of this Court summarized the defendant’s liability in this way at para. 43: The defendant was also negligent in two respects. First, she decided to pass the plaintiff’s vehicle when she did not know with sufficient certainty what the plaintiff was going to do. I recognize that to a degree that uncertainty was caused by the faulty equipment on the plaintiff’s vehicle. Nevertheless, the plaintiff was slowing down and it was apparent to the defendant that she was likely going to do something other than continue to drive down the highway.

The defendant knew that there were places at which a vehicle might turn left or right along that portion of the highway. She, like the drivers in Pipe , [ Mergle v. Formosa Resources Corp. , [1994] B.C.J. No. 1642 (SC) ] and [ Wiebe v. Greyhound Bus Lines of Canada Ltd. , [1995] B.C.J. No. 2582 (SC) ], was faced with an uncertain situation. Her obligation was to not pass until she knew with reasonable certainty what the plaintiff was going to do.

Second, once she was committed to passing and once she realized the plaintiff was not going to turn right, she was obliged to sound her horn to warn the plaintiff of her presence and the hazard she posed. In Eccleston , the plaintiff was held to be contributory negligent for failing to signal in a timely way and failing to keep a proper look out when turning left off a highway at a point where passing is permitted. Neither of those factors is present here. [ 25 ] There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on the left in a no passing zone.

There was a solid double yellow line on the highway, but it was covered with snow. [ 26 ] Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt. First, he was in a no passing zone. Second, he wrongly assumed that she was not able to turn left at that place. Third, he was passing against a double solid line and did not sound his horn to warn Ms. Orcutt that he intended to overtake her. [ 27 ] The defendant received a Violation Ticket charging him with two offences: unsafely passing on the left (s. 159) and following too closely (s. 162(1)). The defendant did not dispute the ticket.

Therefore, he is deemed to have pleaded guilty: Offence Act, R.S.B.C. 1996, c. 338, s. 14(11). [ 28 ] The defendant concedes he was partly to blame for the accident, but argues that Ms. Orcutt was also partly to blame. This is said to be based on her admission that she did not look over her left shoulder to determine whether there was a vehicle passing her before commencing her left turn. [ 29 ] I am not persuaded that Ms. Orcutt’s action in not looking over her shoulder, amounts to a failure to take reasonable care. She was making a lawful left turn. She was in an area where passing was not permitted.

She was in the left turn lane. The defendant did not sound his horn to warn her. [ 30 ] Mr. Dyksterhuis faced a situation in which the intention of Ms. Orcutt was uncertain to him. His decision to pass her when faced with that uncertainty gives rise to total liability. For these and the above reasons, I conclude that the defendant is 100% at fault. DAMAGES Background [ 31 ] Ms. Orcutt has lived in Charlie Lake throughout her life. She was 17 years old at the time of the accident and is now 22. At the time of the accident, she lived at home with her parents.

Her mother, Sheryl, is a bookkeeper/accountant and her father, Wayne, has his own company, working in the oil patch. She has two brothers. [ 32 ] Ms. Orcutt was an athlete. She enjoyed recreational quadding, snowboarding and wakeboarding. She was a dedicated and talented figure skater. This involved practicing six days per week. In addition, there were two weekly sessions in the gym with her coach. All of this was as a member of the Fort St. John Figure Skating Club.

[ 33 ] Ms. Orcutt began competing at age 6. She was in the provincial championships at age 12 and placed 17th in the Province. In February 2003, she placed second. She won the gold medal in the 2003 Senior Ladies Division. [ 34 ] Ms. Orcutt’s only pre-existing condition is celiac disease which she contracted at age 9. She has a gluten-free diet as a result and there is no suggestion that this condition is not entirely under control. [ 35 ] Ms. Orcutt testified that she enjoyed school. She also coached figure skating, did some baby sitting and worked part-time at Ernie’s Sporting Goods.

In June 2008 she graduated with average marks from North Peace Secondary School. [ 36 ] Ms. Orcutt’s ambition was to teach elementary school. Her work experience includes teaching young people to skate. In grade 12 she took a course entitled “Work Experience”. It involved 100 hours of work in grade 1 at Charlie Lake Elementary School. She helped children stay on task, did some preparation and did some marking. [ 37 ] In 2008 Ms. Orcutt was accepted for a two year program at Northern Lights College leading to AHCOTE Teacher Education. This is the Alaska Highway Consortium on Teacher Education.

The purpose of the program is to train teachers and address teacher shortages by retaining people who have grown up in the community. The program involves Northern Lights College, Simon Fraser University, University of Northern British Columbia and School Districts No. 59, 60 and 61. [ 38 ] Dr. Lauren Lovegreen is the registrar of the college. She explained that a student must complete the two year Associate of Arts program and then spend one and a half years in the AHCOTE program. Upon completion, the successful graduate obtains a conditional teaching certificate.

He or she then has five years to complete an additional 30 credits in order to obtain a degree. [ 39 ] The plaintiff lived at home until 2011 when she married Tyrell Orcutt. Mr. Orcutt has his own welding business. He works long days, in and out of town, in the oil and gas industry. [ 40 ] When they got married, they lived in a basement suite in Tyrell’s parent’s home in Fort St. John. In 2012 they moved to a holiday trailer and then to a guest house on the plaintiff’s parents’ property in Charlie Lake.

The plaintiff’s condition [ 41 ] When the plaintiff’s vehicle came to a stop after the collision, she testified, she did not know where she was. Her main concern was that something struck her forehead. This resulted in a “goose egg” and some swelling around her eye. [ 42 ] An ambulance attended. She was advised to go to the hospital. Mr. Brekkas took her to the emergency department at Fort St. John Hospital. She felt nauseous and vomited several times. Hospital records indicate that her Glasgow Coma Scale was 15/15. The plaintiff was discharged the same day. [ 43 ] The plaintiff’s mother, Ms.

Sheryl Shallow, testified that when the plaintiff got home, she slept a great deal and complained of headaches, low back pain and a burning sensation in her right arm. [ 44 ] The plaintiff testified that she saw her family physician, Dr. Heinrich Brussow in Fort St. John who recommended physiotherapy. [ 45 ] Ms. Orcutt also felt tingling in the third, fourth and fifth fingers of her right hand, and up the inside of her arm. Her headaches continued. There was bruising and pain in her scalene muscle and the right side of her neck. She said she had trouble sleeping.

Her eyes were sensitive to bright lights. [ 46 ] The accident happened during spring break. She missed very little school and was able to graduate from grade 12. [ 47 ] Sheryl Shallow testified that she observed the plaintiff had trouble focussing and completing her homework. The plaintiff gave up competitive skating, but continued with her coaching job. [ 48 ] Ms. Orcutt testified that she continued to see her physician regularly. [ 49 ] The plaintiff registered at Northern Lights College in September 2008. She had difficulty spending much time at the computer. Having her arms in front of her was painful.

This problem, together with her difficulty sitting or focussing for long periods of time, led her to register for only two classes. [ 50 ] Ms. Orcutt began her classes but her right arm became numb and heavy when she worked at the computer. This led to her withdrawing from the college in October 2008. [ 51 ] Ms. Orcutt had worked for the Fort St. John Skating Club before the accident. After it, she moved to Peace Passage Skating Club in Taylor, some 15 minutes south of Fort St. John. [ 52 ] The plaintiff coached 8 to 10 hours per week. She said she had difficulty with heavy tasks such as lifting small children.

She continued to coach at Peace Passage until 2012. [ 53 ] Ms. Orcutt also obtained a job at Sharp Instruments. This was a two day per week position. The company’s business is installing and repairing electrical instrumentation. [ 54 ] Christine Woodruff is one of the four owners of Sharp Instruments. She testified that Ms. Orcutt worked there from May 2009 until June 2010. Her tasks were limited to filing. I infer that the plaintiff resisted computer work because of the pain it caused. Ms. Woodruff said that the plaintiff went home early when she did not feel well.

[ 55 ] Ms. Orcutt also enrolled in online courses. She took business math and accounting courses online but was able only to do one course at a time. [ 56 ] Ms. Orcutt testified about what she felt was a change in her personality. Before the accident, she considered herself outgoing and enjoyed being busy. She has since become easily frustrated and has had little patience. She said she often wants to withdraw from busy situations. She testified she is now forgetful, moody and easily irritated. [ 57 ] Ms. Orcutt met her future husband Tyrell in the summer of 2008, following the accident.

They married in June 2011. [ 58 ] Ms. Orcutt took over bookkeeping for Mr. Orcutt’s welding business. He testified that she has trouble staying on task and that her mother checks her work. [ 59 ] Ms. Orcutt does some recreational activities, but has been unable to return to skiing and wakeboarding. She now enjoys side- by-side quadding, a more mellow version of the activity. She also has limitations in doing housework. Her mother helps her with vacuuming. Mr. Orcutt testified that she has trouble reaching up to higher cupboards. [ 60 ] Ms.

Orcutt described her pain symptoms: She testified she never has a day without pain. When it is not severe, she said it is 2 or 3 out of 10. When it is severe, she said it is 12 out of 10. She said this occurs 3 to 4 days a week. [ 61 ] Tammy Beach is a nurse who has known the plaintiff for many years. The plaintiff babysat her children. [ 62 ] Ms. Beach described Ms. Orcutt before the accident as “very outgoing and energetic, friendly and happy”. She said “Lacey enjoyed skating, snowmobiling and wakeboarding. After the accident, Ms. Beach found the plaintiff quiet, not as happy and complaining of pain.

She referred to headaches and blurring vision. [ 63 ] The plaintiff testified that two circumstances have led to an improvement in her symptoms. First, she gave up coaching, and second, she has benefitted from Feldenkrais treatment, which is described below. Expert Medical Evidence [ 64 ] Ms. Orcutt was examined by Dr. Anthony Salvian, a vascular surgeon, in July 2010. Based on his interview and physical examination as well as his review of other reports, he diagnosed: (

a) Myofascial injury of the neck and upper back; (

b) Headaches resulting from para-spinal muscle spasms; and (

c) Post-traumatic thoracic outlet symptoms causing the numbness and pain in the shoulder, forearm and fourth and fifth fingers. [ 65 ] Dr. Salvian’s prognosis and treatment plan includes these important observations: I would emphasize that one cannot simply “work through” the pain and symptoms of thoracic outlet syndrome.

Trying to carry on with an “activation program” or “work hardening program” will simply cause further muscle spasm and muscle injury and exacerbation of the syndrome possibly resulting in a chronic pain syndrome which should be avoided at all costs. [ 66 ] He recommended that she avoid a number of activities: In general, she must avoid overhead use of the arm and repetitive activities with the arm, particularly with the arm away from the chest and above chest level. She should avoid heavy lifting with the arm or prolonged repetitive activities such as typing or driving or writing.

Activities such as retail with the arms overhead, i.e. hanging clothes or putting dishes or clothes away on a top shelf, will be difficult. She should avoid activities like heavy gardening, shovelling and sweeping, painting, wall washing and window washing. [ 67 ] Dr. Salvian also recommended “Feldenkrais” physiotherapy. The purpose of this treatment, he explained, is to improve the patient’s posture and gently stretch the scalene muscles. It focusses on abdominal breathing. [ 68 ] Ms. Orcutt has in fact undergone such treatment.

She has travelled to Bezanson, Alberta, some three hours away, to be treated by Travis LaValley. She made several trips to Bezanson between September 2010 and July 2012, often for three days of treatment. Ms. Orcutt said she would see Mr. LaValley more often if she could. She described the treatment as “one of most helpful things I’ve tried.” [ 69 ] Dr. Andrew Travlos is a physiatrist. He evaluated the plaintiff on August 31, 2009 and September 11, 2011.

He diagnosed thoracic outlet syndrome, mild traumatic brain injury, concussive and cervical-genic headaches, myofascial and soft tissue pain of the neck caused by the concussion, neck pain and upper back pain, and cognitive deficits in attention and concentration. [ 70 ] A significant aspect of Dr. Travlos’ report is the improvement noted between 2009 and 2011. He stated in his second report: When Ms. Orcutt was asked what had transpired in the last two years, she indicated to me that everything was still the same and that there was not much change.

However, on conclusion of the assessment, when it was apparent to me that she had clearly improved, I did state this to her and she definitely nodded in agreement. Although Ms. Orcutt indicated that there was no initial change in her symptoms, it does appear that from a functional perspective, her activity level has increased. She stated that she is now teaching skating again and has been teaching as many hours as are available to her to teach, sometimes up to six hours per day. She finds she is able to manage such activity. Importantly, Ms.

Orcutt stated that she did work out with a trainer for approximately a year and although she initially did not seem to indicate any change or any improvement with her various interventions, it was also quite clear at the end of this assessment, that she has, indeed, improved remarkably since last seen.

Ms. Orcutt’s current headache pains are certainly less than before. They now occur at most once or twice a week and she showed no indication of any prolonged headache pains lasting for days at a time….It is possible there are still some residual post-concussive headache symptoms, but I think that those have mostly settled. …. Ms. Orcutt no longer complains of any significant memory issues. When last seen, she was still having memory problems. She has had a full neuro-psychological assessment done by Dr.

Corney, whose assessment clearly shows normal intelligence but some attention deficits that were attributed to residual effects from a mild traumatic brain injury. It is clear from my perspective that Ms. Orcutt has improved in terms of her cognition, as expected….At this point in time, Ms. Orcutt’s overall cognition has almost certainly plateaued. Importantly, she has normal cognition, normal executive functioning, and has the ability to make decisions and the ability to learn and study as she desires. [emphasis added] [ 71 ] Dr. Travlos also commented on Ms.

Orcutt’s future education prospects: Although there will be some limitation in terms of her concentration span and attention, she should still be able to advance her education. It would seem, therefore, that the only residual factor as a result of the head injury is the attention problems.

This could impact on various avenues of her life, but this is not something that is insurmountable and she should, in fact, be able to resume fairly normal functioning as long as she is aware of her limitations and understands that she needs to take regular breaks and interrupt her activities to ensure that she can keep her concentration span running for the duration of the tasks required. [ 72 ] Dr. Travlos went on to state that there are still some concerns about sleep, but the significant concerns about fatigue were not present at the time of this interview.

He feels that the thoracic outlet symptoms have reduced to a point that they are reasonably controlled. She has learned to adapt. [ 73 ] Dr. Patrick Corney, a neuropsychologist, oversaw the conducting of a number of tests in October, 2010. The results are consistent with her having sustained a mild traumatic brain injury. The tests show significant deficits and attentional disabilities. In his report dated November 26, 2010, he concluded: The results of this neuropsychological assessment identified symptoms that are consistent with a mild traumatic brain injury.

It is my opinion that the difficulties identified will have a negative effect on Ms. Shallow’s ability to complete college or university level education and, by extension, on her ability to meet future occupational goals. Although there is evidence that she can successfully manage single online courses, her ability to manage a more significant course load in a classroom setting will be limited by compromised attention in combination with physical symptoms such as pain and fatigue. He went on to say that the plaintiff appeared to be functioning well from a psychological perspective.

He pointed out that she has no known history of depression or other psychological disorders and has a high level of social support around her. [ 74 ] As the defendant pointed out, Dr. Corney also stated: In the Physical domain, significant elevations were evident on the Pain Scale and Somatic Complaints scales, and a moderate elevation was evident on the neurological status scales. [ 75 ] This indicates, the defendant argues, the plaintiff is somewhat focussed on her pain, the opposite of stoic. I am in general agreement with that observation. [ 76 ] Sharyle Jewett is an occupational therapist.

She assessed the plaintiff on three occasions and made a number of recommendations which will be considered under the plaintiff’s claim for cost of future care. [ 77 ] Derek Nordin, an occupational consultant, concluded because of the plaintiff’s constellation of symptoms, she would not succeed as an elementary school teacher. He is of the view that the cognitive and emotional demands would be too much for her. [ 78 ] The defendant relied on the opinions of three experts. [ 79 ] First, Gary Nix is an educational/vocational consultant. He reviewed expert reports and conducted a two-day assessment of the plaintiff.

He reached these conclusions: I am of the opinion that, prior to the motor vehicle accident of March 24, 2008, Ms. Orcutt was capable of completing at least a two-year diploma program and, given her dedication and hardworking nature, most likely a four year degree in education. This has not changed as a result of the MVA. In my opinion, prior to the accident of March 24, 2008, Ms. Orcutt was capable of working with young children in either a day care or teaching capacity and this has not changed subsequent to it. [ 80 ] He specifically disagreed with Mr.

Nordin’s conclusion that the plaintiff could not pursue a career as an elementary teacher. He put it this way: Ms. Orcutt is of average intellect, above average reading comprehension, possesses good verbal skills, normal memory capacities, low average attention, average reasoning abilities, and appears to have the physical capabilities to perform the duties of an elementary school teacher should she decide to pursue a teaching career. I am of the opinion that she would not have to settle for a “subservient role” as proposed by Mr. Nordin…. [ 81 ] Gary Worthington-White provided an expert opinion in reply to Ms.

Jewett’s cost of future care which is addressed later in these reasons.

[82] Dr. Frank Kemble is a neurologist who gave expert evidence regarding an independent medical examination of Ms. Orcutt. Itwas conducted in February 2012. Dr. Kemble stated that his neurological examination of Ms. Orcutt was “normal”. He said that herheadaches have reduced significantly since the time of the accident. [83] Dr. Kemble attributed Ms. Orcutt’s symptoms to emotional and physical stress brought on by chronic pain. He felt that thoracicoutlet syndrome was the less likely source of her symptoms.

Non-Pecuniary Damages [84] Non-pecuniary damages “should not depend alone upon the seriousness of the injury but upon its ability to ameliorate thecondition of the victim considering his or her particular situation.” It is essential to appreciate the nature of the individual’s loss. Anaward must meet the specific circumstances of each case: Lindal v. Lindal, (SCC), [1981] 2 S.C.R. 629 at 637. [85] In Stapley v.

Hejslet, 2006 BCCA 34, the British Columbia Court of Appeal reviewed the factors to be generally considered inawarding non-pecuniary damages at para. 46: The inexhaustive list of common factors cited in Boyd v. Harris, [2004 BCCA 146] that influence an award of non-pecuniary damagesincludes: (

a) age of the plaintiff; (

b) nature of the injury; (

c) severity and duration of pain; (

d) disability; (

e) emotional suffering; and (

f) loss of impairment of life. I would add the following factors, although they may arguably be subsumed in the above list: (

g) impairment of family, marital and social relationships; (

h) impairment of physical and mental abilities; (

i) loss of lifestyle; and (

j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No.163 (QL), 2005 BCCA 54). [86] The plaintiff sustained injuries including mild traumatic brain injury, trauma induced thoracic outlet syndrome, myofascialinjury and headaches. She has had considerable pain and discomfort. However, I accept Dr. Travlos’ evidence that she has improvedsignificantly. [87] Ms. Orcutt enjoyed socializing a lot less after the accident.

Nonetheless, she has been able to meet Tyrell Orcutt, develop arelationship and enter into what appears to be a stable and enriching marriage. [88] Ms. Orcutt lost the ability to compete in figure skating. She was able to coach almost without interruption. But it has causedher pain, nonetheless. [89] Ms. Orcutt also has been able to travel, including to Hawaii, Mexico and Cuba. [90] As I stated above, I would not describe Ms. Orcutt as stoic. Her description of her symptoms seems more serious than what shereported to Dr.

Travlos. [91] I have reviewed several authorities including those the parties referred to in argument. [92] The plaintiff seeks an award of $165,000. Counsel referred the Court to three cases. [93] In Cikojevic v. Timm, 2010 BCSC 800, the plaintiff was a passenger in the defendant’s truck. She suffered a brain injury,leading to difficulties with her final year of high school. She suffered memory loss, chronic back pain and headaches. The brain injuryhad a significant effect on her ability to maintain employment. She was awarded $152,000. [94] In Danicek v.

Alexander Holburn Beaudin & Lang, 2010 BCSC 1111, the plaintiff suffered injuries from a collision and fall ona dance floor. She suffered severe headaches and was unable to work. The headaches persisted. Her post-concussive symptomsincluded physical, cognitive and emotional difficulties. The injury “had a profound effect on her life”. Her headache pain persisted tothe date of trial, some 9 years after the accident. She was completely disabled for 8 months. The Court found she would likely beincapable of ever working at the job she held before the accident.

Non-pecuniary damages of $185,000 were awarded. [95] In Adamson v. Charity, 2007 BCSC 671, the 42-year-old plaintiff’s vehicle was struck. He suffered a mild traumatic braininjury, chronic pain syndrome, major depression, headaches and hearing loss. He would be unemployable for the rest of his life. He wasawarded $200,000.

[ 96 ] The injuries of the plaintiffs in these cases were substantially more severe than those of Ms. Orcutt. Ms. Orcutt suffered soft tissue injuries, a mild traumatic brain injury and trauma induced thoracic outlet syndrome. She suffered memory loss, but that has improved. Indeed, many of her symptoms have eased considerably. Her examination by Dr.

Travlos in 2011 and his observations persuade me that her pain level is less than described in her evidence. [ 97 ] The accident has had a serious impact on her competitive figure skating and her progress towards a career in school teaching, but there was no period of total disability and she has been able to continue with many activities she enjoys. [ 98 ] I have reviewed a number of the decisions referred to me by the defendant: Baxter v. Jamal , 2010 BCSC 289 ; Peterson v. Ram , 2008 BCSC 252 ; Langley v. Heppner , 2011 BCSC 179 ; Singh v. Clay , 2011 BCSC 1172 ; De Gaye v. Butler , 2011 BCSC 1798 ; Ho v.

Dosanjh , 2010 BCSC 845 ; and Durand v. Bolt , 2010 BCSC 480 . [ 99 ] Of course the plaintiff’s circumstances in each case are singular and distinct. Some of these cases involve depression. Thankfully, that is not present here. Nonetheless, the cases read together are instructive as to the range of damages in analogous cases. [ 100 ] Having considered the plaintiff’s injuries and the factors listed above, in light of the case law, I assess non-pecuniary damages at $85,000. Loss of Earning Capacity [ 101 ] Mr. Justice Savage in Parker v.

Lemmon, 2012 BCSC 27 at para. 42 , summarized Madam Justice Garson’s decision regarding loss of future earning capacity in Perren v. Lalari , 2010 BCCA 140 , as follows:

(1) A plaintiff must first prove there is a real and substantial possibility of a future event leading to an income loss before the Court will embark on an assessment of the loss;

(2) A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation;

(3) A plaintiff may be able to prove that there is a substantial possibility of a future income loss despite having returned to his or her employment;

(4) An inability to perform an occupation that is not a realistic alternative occupation is not proof of a future loss;

(5) It is not the loss of earnings but rather the loss of earning capacity for which compensation must be made;

(6) If the plaintiff discharges the burden of proof, then there must be quantification of that loss;

(7) Two available methods of quantifying the loss are (

a) an earnings approach or (

b) a capital asset approach;

(8) An earnings approach will be more useful when the loss is more easily measurable;

(9) The capital asset approach will be more useful when the loss is not easily measurable. [ 102 ] Ms. Orcutt’s claim for future income loss is substantial: $650,000. It is based on the assumption that she would have worked as an elementary school teacher commencing in September 2013 and can now only work in an office environment. A second assumption is that she will take longer to obtain a college certificate or diploma and as a result her earning capacity will be some substantial amount below that of an elementary school teacher. The third assumption is that Ms.

Orcutt is only capable of working part-time. [ 103 ] The evidence does not support all of these assumptions. Dr. Nix, Dr. Travlos and Mr. Nordin are all of the view that she is capable of completing a bachelor’s degree. I agree with that. [ 104 ] Dr. Travlos encouraged the plaintiff to pursue her goal of becoming an elementary school teacher. [ 105 ] Mr. Nordin was of the view that she could not handle the demands of a teaching job. Dr. Nix felt that she was capable of it. I accept Mr. Nordin’s opinion in this regard.

The demands of the classroom might well exceed her capacity for multi-tasking in a noisy environment. The plaintiff testified that she did not feel she was capable of working as a full-time teacher or working full-time in an office environment. As I stated above, Dr. Travlos thought she was capable of more than she did. I agree with Dr.

Travlos on this point. [ 106 ] That said, one cannot expect the plaintiff to undertake a long course of specialized education, towards obtaining a teaching certificate, only to learn upon graduating, or in the course of her practicum, near graduation, that she lacks the capacity to work in a classroom environment. [ 107 ] I conclude that Ms. Orcutt has the capacity to obtain a university degree. I conclude that she is also capable of working as an educational assistant. [ 108 ] Her loss of future earnings assessment is based on the helpful evidence and analysis of accountant Robert Carson.

She would have earned more as an elementary teacher. Teaching positions are better paying than other occupational groups with a university degree. [ 109 ] Ms. Orcutt has clearly suffered an income loss. The assessment of her loss must take into consideration the fact that Ms. Orcutt was not guaranteed admission to the AHCOTE program. There is also a substantial contingency that because of the accident she will be unable to work full-time. But it is only a contingency. I am in agreement with those who expressed the opinion that generally, she is capable of full-time work.

Based on all of these factors, I assess her loss of earning capacity damages at $225,000.

Special Damages [110] Ms. Orcutt’s claim for various items was provided and totals $10,322.50. There are, in addition, transportation expensesincurred in the many trips to Vancouver. I award $13,000 for special damages, including transportation expenses. Cost of Future Care [111] The approach of a trial judge in determining damages for future care was described in Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 29 (CA): The award for future care is based on what is reasonably necessary on the medical evidence to promote the mental and physical health ofthe plaintiff. [112] Mr.

Justice Masuhara in Izony v. Weidlich, 2006 BCSC 1315, explained a sensible limitation on this principle. At para. 74, hesaid that future care costs must be reasonable in the sense that the plaintiff will be likely to incur them: I therefore do not think it appropriate to make a provision for items or services that the plaintiff has not used in the past… or for items orservices that it is unlikely he will use in the future. [113] The defendant referred the Court to Penner v.

Insurance Corporation of British Columbia, 2011 BCCA 135 where the BritishColumbia Court of Appeal quoted comments by Johnston J. in Travis v. Kwon, 2009 BCSC 63: [109] Claims for damages for cost of future care have grown exponentially following the decisions of the Supreme Court of Canada inthe trilogy of decisions usually cited under Andrews. v.

Grand & Toy, Alberta Ltd., (SCC), [1978] 2 S.C.R. 229, [1978] 1W.W.R. 577. [110] While such claims are no longer confined to catastrophic injury cases, it is useful from time to time to remind oneself thatdamages for future care grew out of catastrophic injuries and were intended to ensure, so far as possible, that a catastrophically injuredplaintiff could live as complete and independent a life as was reasonably attainable through an award of damages. [111] This is worth mentioning because the passage of time has led to claims for items such as, in this case, the present value of thefuture cost of a long-handed duster, long-handed scrubber, and replacement heads for the scrubber, in cases where injuries are nowherenear catastrophic in nature or result. [114] The Court of Appeal went on to say: This is a reminder that a little common sense should inform claims under this head, however much they may be recommended by expertsin the field. [115] Ms.

Jewett examined the plaintiff and made a number of recommendations which she felt were “necessary to enable Ms. LaceyOrcutt to maintain a reasonable level of functioning now and in the future.” Amongst others, they include assistive devices (such as anergonomic office chair, laptop holder and document holder), exercise equipment, medical equipment and pain management aides,sunglasses, physiotherapy or Feldenkrais therapy, a gym membership and seasonal house cleaning and maintenance. [116] The total cost of Ms. Jewett’s recommendations over Ms. Orcutt’s lifetime is $110,606. [117] I found Ms.

Jewett’s report to be thorough. Her evidence was in many ways persuasive, but she described a plaintiff whoseneeds exceed those of this plaintiff. I have not found the plaintiff’s condition as serious as the basis of the assumptions made by Ms.Jewett. [118] The plaintiff will require Feldenkrais therapy and the travel costs to attend it. Massage therapy is also indicated. Thetherapeutic mattress, ongoing gym membership and a measure of assistance with home maintenance are reasonable. [119] I assess $48,000 as the cost of future care. It is awarded.

SUMMARY [120] I find that the defendant is entirely responsible for the accident. Ms. Orcutt is entitled to damages as follows: (

a) Non-Pecuniary Damages $85,000.00(

b) Special Damages $13,000.00(

c) Cost of Future Care $48,000.00(

d) Wage Loss $225,000.00 TOTAL: $371,000.000 [121] Costs may be spoken to. “B.J. Brown J.” for the Honourable Mr. Justice Kelleher