Banic-Govc v. Timm, 2018 BCSC 1073

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Banic-Govc v. Timm, 2018 BCSC 1073 Date: 20180629 Docket: M157426 Registry: Vancouver Between: Nada Banic-Govc Plaintiff And Gregory Louis Timm. Pacific Customs Brokers Ltd. (Lessee) and Howard Carter Lease Ltd. (Lessor) Defendants Before: The Honourable Mr. Justice Affleck Reasons for Judgment Counsel for the Plaintiff: G.J. Collette K.C. Stewart Counsel for the Defendants: C.D. Jago Place and Date of Trial/Hearing: Vancouver, B.C. May 14-18 and 22, 2018 Place and Date of Judgment: Vancouver, B.C.

June 29, 2018 Table of Contents The Testimony about the Alleged Negligent Driving .. 3 Discussion of Liability .. 5 Conclusion on Liability .. 7 Damages .. 7 Non-pecuniary damage assessment 14 Loss of earning capacity to the trial date . 16 Future loss of earning capacity . 17 Cost of future care and loss of housekeeping capacity . 19 Special damages . 21

Summary of Damage Assessment .. 21 [ 1 ] The plaintiff sues the defendant Gregory Lewis Timm (hereafter the “defendant”) for damages allegedly caused by his negligent driving on May 20, 2014. The co-defendants are alleged to be vicariously liable for the defendant’s negligence. I was not asked to make rulings about the co-defendants. Both liability and damages were contested at the trial. The Testimony about the Alleged Negligent Driving [ 2 ] In May 2014, the plaintiff was employed by Delta Youth Services as a counsellor. Her hours were somewhat flexible and

because May 20, 2014 was a “slow” day, she decided to make use of the opportunity to drive to a location in White Rock to find the address where her daughter was soon to attend on a doctor’s appointment. [ 3 ] She lost her way and in order to stop and reorient herself, she drove into a large parking lot next to 17637 1st Avenue in Surrey where the co-defendant, Pacific Customs Brokers, has a place of business. [ 4 ] The plaintiff briefly parked her 2013 Mazda 3 vehicle in one of the many marked parking stalls while she considered how best to proceed.

Having made a decision, she drove back to the exit passageway from the parking lot from which she had earlier entered intending to turn right onto 1st Avenue to drive in a westerly direction. [ 5 ] The combined exit and entrance passageway to the parking lot is 42 feet at its widest immediately adjacent to 1st Avenue. The parking lot is at a lower elevation than 1st Avenue. There is about a 12% downgrade from 1st Avenue for about 30 feet until the pavement levels out in the parking lot itself.

The passageway from 1st Avenue over those 30 feet narrows from about 42 feet at what I will call the mouth of the exit/entrance to about 28 feet at its narrowest until it widens out again into the parking lot. There is no lane marking separating each side of the passageway. [ 6 ] The plaintiff testified that as she exited the parking lot, she drove close to the right side of the exit/entrance.

If this is correct, the left front of her vehicle would have been several feet to the west of the notional centreline of the exit/entrance passageway and thus in the proper location for her to exit the parking lot. [ 7 ] The plaintiff testified that she drove slowly up the passageway from the parking lot to 1st Avenue with her right turn signal activated and when she was within a few feet of 1st Avenue, she saw the plaintiff's vehicle “cutting the corner” as it came towards her. [ 8 ] The plaintiff testified that on seeing the defendant’s vehicle, she immediately braked and came to a stop still within the passageway.

Nevertheless, the left front of the defendant’s vehicle collided with the left front of the plaintiff's vehicle. The plaintiff was adamant that the point of impact with her vehicle was well within the correct side of the notional centreline for a vehicle leaving the parking lot. [ 9 ] The defendant is a senior employee of the co-defendant, Pacific Customs Brokers Ltd., and has a reserved parking stall immediately adjacent to the east of the passageway exit/entrance. On May 20, 2014, the defendant was driving a 2014 Range Rover SUV.

It was a much larger and heavier vehicle than the plaintiff’s Mazda and it was equipped with a suspension system which elevated the vehicle when it was in operation. Thus, the Range Rover was not only larger, but its driver also sat considerably higher off the road surface than did the driver of the Mazda. [ 10 ] The defendant testified that as he drove east towards the Pacific Customs Broker parking lot to go into the parking lot his vehicle had to cross over a double solid yellow line in the middle of 1st Avenue.

As the defendant’s vehicle approached the entrance to the parking lot, a large “18 wheeler” vehicle slowly travelled west along 1st Avenue. The defendant slowed his vehicle to allow that large vehicle to move beyond the entrance to the parking lot. When the 18 wheeler vehicle had moved out of the way, the defendant turned left and continued to drive into the passageway and down towards the parking lot.

The collision occurred immediately as his vehicle entered the passageway. [ 11 ] The defendant testified that when he first saw the Mazda, although he was travelling slowly at perhaps 10 to 15 km/h, it “was too late to stop”. He “somewhat agreed” that his vehicle had “cut the corner”. Nevertheless, he insisted the plaintiff's vehicle was to the east of its proper lane in the passageway for an exiting vehicle. [ 12 ] In cross-examination the defendant was asked if he was aware that there was a “rule” about vehicles turning across double solid lines. His answer was that “it is not allowed but everybody does it”.

Discussion of Liability [ 13 ] I begin this discussion expressing my opinion that both the plaintiff and the defendant were transparently honest witnesses but both cannot be correct in their recollections. No measurements were taken nor were photographs offered in evidence of the point of impact and no independent witness to the accident testified.

To resolve the issue of liability, I must consider what is more likely than not to be the explanation for how the collision occurred. [ 14 ] I make the following findings of fact. [ 15 ] Immediately before the collision, the plaintiff's vehicle was travelling slowly on an upward incline from the parking lot towards 1st Avenue where the plaintiff intended to turn right.

That upward incline and the large 18 wheeler vehicle briefly limited her view of the defendant’s vehicle. [ 16 ] I am not able to determine with confidence whether the plaintiff's vehicle was as far to the right of the passageway as she testified it was but I accept it was not in the notional lane for traffic entering the parking lot. The plaintiff impressed me as a careful and thoughtful woman who, because she intended to turn right, was probably towards the right hand side of the passageway.

The defendant’s evidence reinforces this probability. [ 17 ] I also accept that the defendant is a careful and thoughtful witness but several factors militate in favour of ascribing fault to him for the collision. One is his candid acknowledgement that he “cut the corner”. The only corner of relevance was the notional corner that would have been created by a lane marker. I find that cutting the corner meant he intruded into the plaintiff’s lane of travel.

Another factor is that the defendant’s view of the emerging Mazda was briefly blocked by the 18 wheeler vehicle travelling west on 1st Avenue and passing to the left of the defendant’s vehicle. Another factor is that the defendant had driven into the parking lot for Pacific Customs Brokers off 1st Avenue on many occasions and he may have become casual about the risk of encountering vehicles leaving the parking

lot. Another factor is that the defendant did not see the plaintiff’s vehicle until it was too late to avoid the collision. There are several possible explanations for his failure to see the plaintiff’s vehicle. One was the aforementioned presence of the 18-wheeler vehicle and another may be that the defendant’s view of the plaintiff’s vehicle was impeded by both the change in elevation between the highway and the parking lot and the height of the defendant’s vehicle.

He may have been surprised by a relatively smaller vehicle coming towards his vehicle but below where his attention was focused towards the parking lot entrance itself. [ 18 ] None of these explanations can be determined with precision but the unavoidable fact is that the defendant did not see the plaintiff’s vehicle until it was too late to avoid the collision.

Not to have seen the plaintiff’s vehicle when it was in the proper lane of travel and colliding with it was a failure to take reasonable care. [ 19 ] The defendant’s belief that s. 156 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 prohibits a left turn over a double solid line is incorrect. The effect of s. 156 is that a driver intending to turn across a double solid line in order to leave a highway must first determine it was safe to do so without affecting the travel of another vehicle.

The defendant did not make that determination. [ 20 ] I have commented earlier in these reasons on the defendant’s testimony that the plaintiff’s vehicle had intruded into the defendant’s lane of travel when exiting the parking lot. For that to be correct, the plaintiff’s vehicle would have had to have been almost 20 feet away from the western edge of the “mouth” of the parking lot onto 1 st Avenue. I accept the plaintiff’s vehicle was further to the east than she recalled but I do not accept it was in the defendant’s oncoming lane.

Conclusion on Liability [ 21 ] I find the defendant solely at fault for the accident. Damages [ 22 ] The plaintiff is 65 years old. She came to Canada from Slovenia in 1990. She and her husband have two grown children who now live on their own. She was educated in Slovenia largely in counselling and has worked in that field since coming to Canada. Her husband is employed by BC Ferries and works on a two weeks on, two weeks off schedule. [ 23 ] The plaintiff worked as a family counsellor with Delta Youth Services from which she retired on April 27, 2018.

She has a small pension from Slovenia and receives Canada Pension Plan benefits. At the time of the trial, she was not yet receiving the old age pension. [ 24 ] At the beginning of April 2018, the plaintiff began to work part-time on a contractual basis with No Fear Counselling Corporation (“No Fear”). She testified that there are enough clients to allow her to work full time if she so chose. The principal of No Fear, Ofir Vaisman, confirmed in his testimony that he is able to send enough clients to the plaintiff to allow her to work full time.

Some of the counsellors who work for No Fear do so and enjoy a monthly income of approximately $6,500-$7,000. Nevertheless, the plaintiff has told Mr. Vaisman that she cannot work more than one day a week and does not want to be included on a company website. This would seem to suggest that she was attempting to limit her public exposure, and by virtue of that, limiting the chances of her needing to work more than one day a week. [ 25 ] In cross-examination of the plaintiff and Mr.

Vaisman, the defendant sought to elicit evidence that the plaintiff has found a means, through No Fear, to replace her income from her previous employment. There was also an effort made to suggest that the plaintiff was dishonest in seeking to remove her name from the company website immediately in advance of the trial to hide the fact that she was now working again. I do not accept the defendant’s suggestions on the inferences to draw from the plaintiff’s behaviour.

My view of the plaintiff is that she is an honest witness and her conduct in seeking contractual employment was consistent with her desire to earn at least some income for her family. Removing her name from the No Fear website was consistent with her limiting the extent of her work because of her accident related disabilities. [ 26 ] The plaintiff's position with Delta Youth Services was full-time. She worked largely as a counsellor but in later years took on administrative tasks with responsibility for the coordination and clinical supervision of a team of five clinicians.

The plaintiff testified that she “loves” to work as a counsellor. Colleagues from her work supported that understanding of the plaintiff’s view of her work and I accept her work was an important and gratifying part of her life. [ 27 ] In 2012, Delta Youth Services merged with what is known as the Boys and Girls Club of South Delta. This lead to a more supervisory role for the plaintiff. She enjoyed that work less than she had the counselling work. Difficulties arose between the plaintiff and her supervisor, Catherine Snowden.

This led to increased stress in the plaintiff’s life, which stress caused her to consult her family physician, Dr. Marie Di Cesare, who prescribed Ativan. Over the years, the plaintiff has used various techniques to reduce her anxiety about certain events in her life. Those techniques have included yoga classes and meditation. [ 28 ] The plaintiff testified that the difficulties with her supervisor were eventually overcome. Ms. Snowden, testified and agreed with the plaintiff’s evidence. Ms. Snowden was the plaintiff's supervisor since the merger in 2012.

She described the plaintiff as a very diligent and responsible employee who was professional “to a high level”. Ms. Snowden testified to changes in the plaintiff after the May 20, 2014 accident, including a diminished ability to concentrate which lead to her meetings with Ms. Snowden becoming shorter. Difficulties between them arose after a performance review in November 2015. Ms.

Snowden clearly found this to be a difficult time as did the plaintiff. [ 29 ] The plaintiff required knee surgery in 2016, which was not related to her accident of May 2014, and was away from work for 3 to 4 months returning on a reduced work schedule. Changes were made to her workplace responsibilities and the difficulties between the plaintiff and Ms. Snowden were overcome. I accept that those difficulties have had no lingering consequences and do not explain the

plaintiff’s decision to retire from her employment. [ 30 ] After her knee surgery, the plaintiff reduced her hours of work to 32 per week. Ms. Snowden “got the sense” that the plaintiff intended to continue to work “as long as she could”. Although Ms. Snowden was the plaintiff’s supervisor, she was careful not to make inquiries about the plaintiff’s retirement intentions and described the plaintiff as a private person. Eventually, the plaintiff asked to reduce her workweek to four days but Ms. Snowden was unable to accommodate that request because of staffing requirements. Some time later, the plaintiff told Ms.

Snowden that she had been advised by her physician that she ought to retire. Ms. Snowden was aware that the plaintiff was experiencing difficulties arising from the accident of May 2014 but prior to her informing Ms. Snowden of her decision to retire, the plaintiff had never discussed with Ms. Snowden any details of her physical health. [ 31 ] Evidence was given of particularly stressful events in the plaintiff’s life which the defendants put some emphasis on as factors which explain, at least to some extent, her current condition. One of those events was a motor vehicle accident in January 2013.

While turning left at an intersection, the plaintiff’s vehicle was struck forcefully by an oncoming truck. Her vehicle was heavily damaged. She described this experience as “traumatic”. She had injuries to her ribs and back and experienced tingling in her fingers. She was off work for six weeks and then returned full time. By the end of August 2013, the plaintiff had fully recovered from that accident. There was no evidence to contradict the plaintiff’s assertion that, well before the May 24, 2014 accident, she was no longer experiencing any significant effects of the January 2013 injuries. She told Dr.

Nairn Stewart, a physiatrist who saw the plaintiff at the request of her counsel, that prior to the 2014 accident, she had “some occasional low back discomfort”. I do not believe this discomfort limited the plaintiff’s activities and I do not consider it to have adversely affected the plaintiff’s credibility when she testified that the effects of the 2013 accident were gone by the end of August 2013. [ 32 ] Other incidents the defendants emphasized were the deaths of two family dogs of the plaintiff. I am not persuaded they have any significance for the assessment of damages.

I make the same observation about the decision of the plaintiff and her husband to “downsize” by moving from a house in which they had lived for many years. [ 33 ] Prior to the May 2014 injuries, the plaintiff had significant degenerative changes in her left knee which lead to a successful operation for the total replacement of that knee in February 2016. Even prior to that surgery, the plaintiff had remained physically active. In the accident of May 20, 2014, the plaintiff struck her right knee on the interior of her car and suffered what was later diagnosed as a meniscal tear. Dr.

Brian Day, an orthopedic surgeon, gave his opinion that she may need arthroscopic surgery in her right knee eventually and that this may lead to the worsening of the existing osteoarthritis of that knee. In Dr. Day’s opinion, there is a likelihood of a need for a knee joint arthroplasty on the right side at some unspecified time in the future. Dr. Day did not comment on whether this would likely have become necessary even if the May 2014 accident had not happened. [ 34 ] After the May 20, 2014 accident, the plaintiff complained of headaches, pain in her back and right knee, and tingling in both hands.

She developed anxiety about driving and her general state of anxiety increased. She undertook physiotherapy, massage therapy, and an active exercise program along with counselling. [ 35 ] The plaintiff returned to work the week after the May 20, 2014 accident hoping she would experience the same rapid recovery as she had after the January 2013 accident. That hope was not realized. [ 36 ] The plaintiff continues to have migraine type headaches and considerable pain in her neck and upper back.

There is also evidence of some pain in her lower back which pre-dated the May 2014 accident but that pain has become more pronounced since May 2014. The tingling in her hands resolved within weeks. [ 37 ] Prior to the May 20, 2014 accident, the plaintiff had the ability to walk and to hike for many hours. She would also ride her bike regularly. Her present walking tolerance is limited to about an hour with pain.

She was much involved in gardening but this has since been greatly restricted and when she does garden, she is much less physically active than prior to the May 2014 accident. [ 38 ] The plaintiff was subject to some criticism in cross-examination for failing to take an adequate approach to her recovery by becoming physically active. The suggestion is that she has limited herself to passive therapies.

The plaintiff has certainly taken passive approaches to recovery such as acupuncture, massage, laser, meditation, and counselling for anxiety, but she has also attended Pilates and a kinesiologist and has continued to walk and even go on modest hikes with some difficulty. I do not fault the plaintiff for failing to take adequate steps to attempt to mitigate her condition. I accept that she has acted reasonably to attempt to recover. [ 39 ] Dr. Stewart reported that the plaintiff described her headaches as decreasing in both severity and frequency in recent times.

They now occur about once a week and are migraine–like. By the end of 2017, her other symptoms had not improved to any appreciable extent. Her virtually constant upper back pain is her most prominent difficulty. The plaintiff experiences about 5 to 6 hours of sleep each night, awaking every hour or two due to her now constant back pain. [ 40 ] Dr. Stewart recommends the plaintiff have regular assistance with housekeeping and yard work. Dr.

Stewart opines that the plaintiff “will continue to experience all her symptoms and limitations resulting from the [May 20, 2014] accident in the future”. [ 41 ] Tracy Witty is an occupational therapist who assessed the plaintiff in her home. Ms. Witty testified and provided a written opinion of her recommendations for the cost of future care of the plaintiff. She described the plaintiff's injuries under the heading of “effects on daily living” as follows: a. Unable to walk at the same pace as pre-MVA and limited to 20-30 minutes of walking most days.

When hiking uses walking sticks and has reduced the frequency of hikes to once or twice a month. b. Medicates with Tylenol due to discomfort sitting on flights to Europe to visit family. c. Difficulty standing for periods up to 30 minutes, avoids standing due to symptom increase. d. Develops back stiffness and needs support sitting at work during hour-long sessions with clients, has adjustable chair now. Medicates

with Tylenol to alleviate discomfort during long work meetings. e. Some difficulty transferring from seated position to standing, e.g. struggles to exit the bath when in pain. f. Reduced frequency of meal prep from daily to once a week due to reduced energy … [ 42 ] Ms. Witty’s report is dated February 16, 2018 and was completed following her assessment of the plaintiff on January 9, 2018. At that time, the plaintiff had not yet retired from her employment with the Boys and Girls Club. Based on her assessment, Ms.

Witty observed that the plaintiff “is typically experiencing a severe level of low back and neck/shoulder pain and moderate right knee pain”. Ms. Witty wrote the following: Based on the standards of practice in life care planning, the objective is to provide sufficient support to return the individual as close as possible to their original position. Ms.

Banic-Govc reports that prior to her injuries, she was the primary homemaker and would clean each of her washrooms twice per week, clean her floors by hand on a weekly basis, perform all the household laundry and shopping, prepare meals nightly and perform the lawn and garden care regularly. Based on my functional assessment, despite reducing her work hours, she is unable to complete her usual household tasks thoroughly or timely or at the same frequency. Based on the size and occupancy of the home, pre-injury roles and residual impairment and current functional status, I recommend Ms.

Banic-Govc received assistance with the following: a. Household cleaning, 1.5 hours twice a week, 11 months/year due to vacations b. Consider weekly grocery delivery of heavier items, no additional cost c. Consider meal service delivery of prepared dinner meals, no additional cost d. Yard and garden Care: 36 hours per year Despite Ms. Witty’s reference to “a severe level of low back pain” the plaintiff’s evidence and the medial evidence is that she experiences pain in both her lower back and also considerable amounts of pain in her upper back and neck.

This may be tied to her headaches, but is undoubtedly caused by the accident. [ 43 ] The plaintiff's husband and her children testified. All described the plaintiff as very physically active before the accident of May 2014. She took on the bulk of the housekeeping chores and the gardening. Prior to the accident the plaintiff and her daughter would go on lengthy walks together in Golden Ears Park and near Buntzen Lake. [ 44 ] The plaintiff's husband testified that following the May 2014 accident when he is not absent on his work with BC Ferries, he performs most of the household cleaning chores and the gardening.

The frequent attendance of the plaintiff and her husband at concerts or theatres and at social events has been much diminished following the accident of May 2014. The intimacy between the plaintiff and her husband has been substantially restricted because of the plaintiff's pain. [ 45 ] Diane Canning is a former work colleague of the plaintiff at the Boys and Girls Club and is also a friend. They have known each other for many years. When Ms. Canning reached the age of 65, the plaintiff encouraged her, notwithstanding that this is the usual age of retirement for many people, to keep working. Ms. Canning did so.

The same encouragement was given by the plaintiff to Ms. Canning when she turned age 70. Ms. Canning is now 73 years old and hopes to continue to work for several more years. It is apparent that both the plaintiff and Ms. Canning have long had the ambition to carry on working well beyond the usual retirement age. [ 46 ] Norma Maurtua is a former supervisor of the plaintiff at the Boys and Girls Club and remains her friend. She testified that the plaintiff loved her work where she enjoyed the high opinion of her co-workers and of her clients. [ 47 ] Dr.

Owen James is a psychologist who provided a report and also testified. He opined that only after the May 2014 injuries did the plaintiff experience a significant decline in her mood and develop a “more prominent anxiety”. Dr. James provided a “guarded” prognosis for the plaintiff’s anxiety and observed that she is experiencing a “mild” depression. He commented that a “mild” depression is nevertheless a significant depression but can be contrasted with a “severe” or “marked” depression. Dr. James attributes most of the plaintiff’s continuing psychological problems to the injuries of May 2014.

He does not expect her to return to her pre-accident state of mental health. [ 48 ] The defendants did not offer any expert evidence. Non-pecuniary damage assessment [ 49 ] An award of damages under this heading is an assessment not a calculation. [ 50 ] As enumerated in Stapley v. Hejslet, 2006 BCCA 34 at para. 46 , in determining an award for non-pecuniary damages, a judge may consider: (

a) the plaintiff's age; (

b) the nature of the injury; (

c) the severity and duration of physical pain; (

d) the extent and duration of any physical disabilities; (

e) the extent and duration of any psychological injury including depression, anxiety, or any other emotional suffering;

(

f) the loss or impairment of life; (

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

h) the impairment of physical and mental abilities; (

i) the loss or impairment of lifestyle choices; and (

j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff). [ 51 ] Although the award will vary in each case depending on the specific circumstances of an individual plaintiff, it is appropriate for judges to consider awards in other cases that are reasonably comparable. I have been referred to the following cases relied upon by the plaintiff: Hollyer v. Gaston , 2016 BCSC 1401 ; Severud v. Smit , 2016 BCSC 1021 ; and Kam v. Van Keith , 2015 BCSC 1519 .

In those cases the award for nonpecuniary damages was within the range of $125,000 - $130,000. [ 52 ] I have considered the following cases relied upon by the defendants: Dosangh v. Xie , 2017 BCSC 1937 ; Anderson v. Gagnon , 2018 BCSC 98 ; and Senger v. Graham , 2018 BCSC 257 . The award in those cases for non-pecuniary damages ranged from $70,000- $80,000. [ 53 ] The plaintiff’s condition has been much more adversely affected by her May 2014 accident than was the condition of each of the plaintiffs in the cases on which the defendants rely.

The cases relied on by the plaintiff are more analogous to her condition. [ 54 ] The plaintiff has been transformed from a physically active woman into an inactive woman with constant, debilitating pain. Her physical condition is not likely to improve. The plaintiff's ability to engage in hiking or biking as she did before May 2014 is severely limited. Her social life has been greatly restricted. Her physical relationship with her husband has, at best, become a source of pain and of emotional distress.

She was formerly a meticulous housekeeper but now finds herself distressed to realize that her house is “messy” and there is little she can do about it. Much of the housework is now impossible for her. She has enjoyed gardening when capable of doing so but much of that activity causes such pain that she cannot continue. Importantly, I accept that the plaintiff would have continued in her employment with the Boys and Girls Club to at least the age of 70 but the accident has brought that ambition to an end.

It was one of the greatest sources of pleasure in her life. [ 55 ] I assess the plaintiff’s non-pecuniary general damages at $130,000. Loss of earning capacity to the trial date [ 56 ] In 2014, the plaintiff enjoyed an annual salary of $60,797 through her employment with the Boys and Girls Club. Immediately following the accident on May 20, 2014, she was briefly away from work and lost $670.50 in income. She later reduced her hours of work because of her physical and psychological difficulties.

She had her knee surgery in September 2016 and then decided to leave her employment on the advice of her physician on April 27, 2018. For her last year, the plaintiff's salary was $64,000 or approximately $246 daily. She lost about 80 days of earnings through her reduction of her hours of work after the accident. That loss I assess at $20,000. [ 57 ] From that sum, her expected earnings before trial with No Fear must be deducted. She has invoiced No Fear for $1,564 (which invoice is expected to be paid soon) of which

part is attributable to her overhead. I assess her net earnings through No Fear once the overhead cost is deducted at $1,300. [ 58 ] Had the plaintiff continued with her employment with the Boys and Girls Club up to the date when the trial began (as I conclude she would have but for the accident), she would have earned $3,690 between April 27, 2018 and May 14, 2018. Thus she has an additional loss of $2,390 once the $1,300 expected from No Fear is deducted. [ 59 ] The plaintiff's gross loss of earning capacity between May 20, 2014 and the beginning of the trial I assess at $23,000.

The rate of income tax on that income would be 16%. Therefore, I assess the plaintiff's pretrial loss of earning capacity at $19,500. Future loss of earning capacity [ 60 ] In Crimeni v. Chandra , 2015 BCCA 131 , Willcock J.A., for a unanimous court, wrote: [15] An award for loss of income earning capacity is intended to put the plaintiff in the position she would have occupied had she not been injured.

It must be founded upon a real and substantial loss and must be measured by seeking to approximate the actual economic loss the plaintiff has suffered. [ 61 ] The medical evidence leaves me in no doubt that the plaintiff’s capacity to earn an income has been severely constrained by her injuries. Her decision to retire from the Boys and Girls Club was based on medical advice. If the accident had not happened, I conclude that, absent the various contingencies in life, she would have continued in her employment to age 70 on a full-time basis. Thereafter, she would have reduced her work week to four days.

From the date of the accident until the age of 70, it is likely that she would have earned an annual salary of $64,000. From the age of 70 to age 75, she likely would have earned a salary of $51,000. I have no basis on the evidence to conclude the plaintiff would have retired before 75 if she had not suffered the accident of May 2014. I believe she would have continued to work much as she successfully encouraged Ms.

Canning to do. [ 62 ] I have no evidence of specific negative contingencies that ought to be applied to the plaintiff’s circumstances to conclude that she would not have worked to age 75 but for the accident injuries. Nevertheless, it is unusual in our society to be employed past the age of 70 and particularly unusual to be a salaried employee to age 75 or beyond. The negative contingencies in those years are unavoidable for most people and the plaintiff is no exception. The contingencies are dealt with below.

[63] An important consideration in determining loss of future income earning capacity is that if the plaintiff had not been injured onMay 20, 2014 she may nevertheless have decided to leave the Boys and Girls Club to conduct her own counselling practice, as she laterdid with No Fear. In that event, she could have at least sustained her annual income and perhaps increased it. I conclude that was not alikely choice. The plaintiff loved her work with the Boys and Girls Club where she enjoyed the esteem of her colleagues.

But for theaccident injuries, I conclude the plaintiff would have continued in her full-time employment with the Boys and Girls Club to age 70 andthen reduced her time to four days a week through to the end of her 75th year. [64] The plaintiff submits she now has a residual annual earning capacity of $20,000 though No Fear to the age of 70. I accept that ascorrect. After age 70, I conclude her residual earning capacity will be reduced to $10,000 per annum.

If the plaintiff had continued heremployment with the Boys and Girls Club and her salary was unchanged as I believe would have occurred, she would have earned$64,000 for each of the five years between ages 65 and 70 for a total of $320,000. From that sum must be deducted $100,000 to accountfor a residual earning capacity over those five years, leaving a total of $220,000. Reduced to a present value that sum is $208,000. Forthe additional six working years between age 70 through age 75, the plaintiff would have earned $51,000 annually with the Boys andGirls Club.

Her residual annual earning capacity with No Fear I assess at $10,000 for each of those years. Her loss is then about$240,000 before a reduction to its present value which I have factored into my calculations. [65] My calculation based on the foregoing approach is that the plaintiff’s loss of future earning capacity exceeds $400,000. Thatdoes not take into account the contingencies. There are no positive contingencies that could be expected to increase the plaintiff’s futureearnings.

I conclude, however, as I have already suggested, that the negative contingencies begin to increase in importance withadvancing age. Those contingencies lead me to conclude that the $400,000 earning capacity loss that I have referred to is greater than isappropriate as a damage award under this head. I assess the plaintiff's loss of future earning capacity at $350,000. Cost of future care and loss of housekeeping capacity [66] The plaintiff is also entitled to compensation for the loss of housekeeping capacity.

This analysis is intended to compensate theplaintiff for the expenses encountered to replace the services she performed that now must be purchased. She need not rely on familymembers to provide those services. [67] On O’Connell v. Yung, 2012 BCCA 57 at para. 67 Kirkpatrick J.A. wrote: [67] As noted by Madam Justice Huddart in McTavish, at para. 16, the case was concerned with the development of principledrestraints on claims for loss of housekeeping capacity. One of the principles approved in Kroeker came from Fobel v. Dean (1991), (SK CA), 83 D.L.R. (4th) 385 at 407, [1991] 6 W.W.R. 408 (Sask.

C.A.), in which it was said that it is not necessary for aplaintiff to prove that someone will be employed to do the work in the future to be entitled to an award for loss of housekeeping capacity.As I understand the principle, it is the loss of a capacity – an asset – that is compensated. Accordingly, because the award reflects theloss of a personal capacity, it is not dependent upon whether replacement housekeeping costs are actually incurred. Damages for the costof future care serve a different purpose from awards for loss of housekeeping capacity.

Unlike loss of housekeeping capacity awards,damages for the cost of future care are directly related to the expenses that may reasonably be expected to be required (Krangle at para.22). Determining the amount of a reasonable cost of future care award entails a unique set of considerations, as Professor Cooper-Stephenson explains at 416: It is clear that both the need and the opportunity for the expenditure of moneys is relevant to the assessment.

Therefore, if the plaintiff’smedical condition may require care of a less expensive nature—such as institutional care—then the award for future cost of care shouldreflect that possibility. Equally, it would seem, if the evidence is not conclusive that more expensive care will be available, or that theplaintiff will find such care to be physically and emotionally satisfactory, then the award should reflect those possibilities; the reducedaward will then reflect the best estimate of what will be reasonably necessary to provide optimum care.

In this sense, the court is boundto look to the actual spending potential of the plaintiff. [68] Based on the cost of future care analysis provided by Ms. Witty and the net present value calculation provided in the economicreport prepared by Darren Benning, which became evidence without Mr.

Benning testifying, I agree with the plaintiff's calculation ofthose cost of future care costs as follows: Medication and Supplements Cambia (for headaches) $ 2,114Projected Therapeutic Modalities Chronic Pain Program – Private $ 14,310Psychology – Initial $ 2,339Psychology – Ongoing $ 13,196Massage Therapy $ 22,158Physiotherapy $ 4,748Occupational Therapy $ 12,662Home Support Homemaking – To Age 75 $ 36,900Homemaking – Age 75 (reduced by 20% per year to 80) $ 3,092 Homemaking – Age 76 $ 2,379Homemaking – Age 77 $ 1,711Homemaking – Age 78 $ 1,092Homemaking – Age 79 $ 521Yard Care – To Age 75 $ 10,613Yard Care – To Age 75 (reduced by 20% per year to 80) $ 889Yard Care – To Age 76 $ 684

Yard Care – To Age 77 $ 492 Yard Care – To Age 78 $ 314 Yard Care – To Age 79 $ 150 Health Maintenance & Leisure Pilates – Trial $ 248 Pilates – Ongoing $ 43,873 Windskill Community Centre $ 8,309 Kinesiology/Trainer $ 7,017 Total $189,808 I asses the plaintiff’s damages for the cost of future care at $190,000. [ 69 ] Ms. Witty has opined on the plaintiff's inability since the May 2014 accident until trial to perform her usual housekeeping tasks.

The medical evidence and the evidence of the plaintiff’s family and friends and the plaintiff herself support the need to provide for the cost of replacing those services. Mr. Benning provides the annual cost for housekeeping and yard work before the trial at about $5,500. The plaintiff claims $22,000 under this head of damages, which in my view is reasonable. It is awarded to replace a lost “asset” of the plaintiff: her ability to perform her own housekeeping and yard work (see Dykeman v. Porohowski , 2010 BCCA 36 at para. 28 and Westbroek v. Brizuela , 2014 BCCA 48 at para. 74 ).

Special damages [ 70 ] The parties agree special damages of $7,218.18 ought to be awarded. I accept this amount and award it accordingly.

Summary of Damage Assessment [ 71 ] In

summary, I assess the plaintiff’s damages as follows (

a) Non-pecuniary general damages: $130,000; (

b) Past loss of earning capacity: $19,500; (

c) Future loss of earning capacity: $350,000; (

d) Cost of future care: $190,000; (

e) Past loss of housekeeping capacity: $22,000; and (

f) Special damages: $7,218.18 Total: $718,718.18 [ 72 ] I award the plaintiff $720,000 for damages arising out of the accident of May 20, 2014. [ 73 ] The parties may make arrangements to speak to costs. Otherwise the plaintiff is entitled to an award of costs at Scale B. “The Honourable Mr. Justice Affleck”