Kala v. Bahr, 2024 BCSC 192

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kala v. Bahr, 2024 BCSC 192 Date: 20240207 Docket: M1710406 Registry: Vancouver Between: Kamaljit Kour Kala Plaintiff And Abdurrahmann Bahr Defendant - and - Docket: M193466 Registry: Vancouver Between: Kamaljit Kour Kala Plaintiff And Kristopher Michael Vedder and Kulwant Singh Defendants Before: The Honourable Justice Francis Reasons for Judgment Counsel for the Plaintiff: S.T. Cope Counsel for the Defendant: H.S. Nirwan I.S. Gill Place and Date of Trial/Hearing: Vancouver, B.C.

November 27-30 and December 4-5 and 7, 2023 Place and Date of Judgment: Vancouver, B.C. February 7, 2024 Table of Contents INTRODUCTION .. 3 Background Facts .. 3 Before the Accidents . 3 Ms. Kala’s home and personal life . 3 Ms. Kala’s pre-accident work and travel 4 Ms. Kala’s history of chronic pain .. 5 After the First Accident 6 The Second Accident 7

Liability for the First Accident .. 7 Ms. Kala’s evidence about the First Accident 7 Alven Kala’s evidence about the First Accident 8 Kulwant Singh’s evidence about the First Accident 9 Abdurrahmann Bahr’s evidence about the First Accident 9 Expert evidence about the First Accident 10 Analysis of liability for the First Accident 10 Liability for the Second Accident .. 13 Causation .. 13 Facts Relevant to Causation .. 13 Medical evidence . 13 Ms.

Kala’s evidence about her injuries . 16 Law of Causation .. 19 Assessment of Damages .. 21 Non-Pecuniary Damages . 21 Loss of Earning Capacity . 23 Past Income Loss . 23 Future Loss of Income Earning Capacity . 26 Step 1: Does the evidence disclose a potential future event that could lead to a loss of capacity? . 27 Conclusion on future loss of income earning capacity . 28 Loss of Housekeeping Capacity . 28 Cost of future care . 30 Special Damages . 31 Conclusion .. 32 INTRODUCTION [ 1 ] The plaintiff, 46-year-old Kalamjit Kala, was involved in two motor vehicle accidents in 2017 and 2018. [ 2 ] In the first accident, which took place on April 13, 2017, she was driving her husband and daughter on Highway 1 in Vancouver when her Toyota Camry collided with a vehicle driven by the defendant Mr.

Bahr (the “First Accident”). Liability for the First Accident was not admitted by Mr. Bahr and was one of the issues before the Court at trial. [ 3 ] About a year later, on April 27, 2018, Ms. Kala was a passenger in the same vehicle, this time with her husband driving. Their vehicle collided with a Honda Civic driven by the defendant Mr. Vedder (the “Second Accident”). Liability for the Second Accident has been admitted by Mr. Vedder. [ 4 ] Ms.

Kala seeks damages for her pecuniary and non-pecuniary losses arising from injuries that she claims arose from the First Accident and the Second Accident (collectively, the “Accidents”). Background Facts Before the Accidents Ms. Kala’s home and personal life [ 5 ] Ms. Kala immigrated to Canada from India in 2009 with her husband and two children. The family lives in an apartment that is

attached to the Gurudwara where Ms. Kala’s husband works. [ 6 ] According to the evidence of Ms. Kala’s husband and two children, now aged 23 and 17, Ms. Kala has always been an energetic and devoted mother. Before the Accidents, she derived great satisfaction from looking after the needs and wishes of her family. Both children described an idyllic pre-accident home life in which neither child did chores or was in any way responsible for tending to the home, or even to their own personal care.

Every day, their mother prepared all their meals and snacks, cleaned their rooms, did their laundry, made their beds, and brushed her daughter’s hair for her. Ms. Kala’s pre-accident work and travel [ 7 ] On April 26, 2010, Ms. Kala was hired to work as a “sub-maker” at Quiznos sandwich shop in Mission, BC. This job required her to interact with customers in English. [ 8 ] In October 2010, Ms. Kala was involved in a motor vehicle accident (the “2010 Accident”) that caused her to have some back and neck pain. Due to her injuries related to the 2010 Accident, she left her employment at Quiznos on February 6, 2011.

Her claim with respect to the 2010 Accident was settled in June 2011. [ 9 ] In July 2011, Ms. Kala started working as a seasonal labourer on a blueberry farm. At the end of the berry picking season, she collected EI benefits. During the 2012 and 2013 berry season, she again worked as a labourer on the berry farm. [ 10 ] In January 2014, Ms. Kala took an extended trip to India to visit her ailing father. She stayed in India from January 16, 2014 until April 18, 2014. When she returned to Canada, she successfully applied for EI benefits.

On June 17, 2014, her EI benefits were converted from regular benefits to sickness benefits. She did not work at the berry farm, or anywhere else, during the 2014 berry picking season. [ 11 ] On December 1, 2014, Ms. Kala returned to India for another extended trip. She stayed in India for nine months from December 1, 2014 until September 5, 2015. [ 12 ] After a nearly two-year absence from the workforce, Ms. Kala returned to work as a farm labourer on the blueberry farm on May 16, 2016. She worked there until August 3, 2016. [ 13 ] Ms. Kala received EI sickness benefits again in early 2017.

These benefits expired on April 1, 2017. When asked on direct examination why she was receiving EI sickness benefits immediately before the First Accident, Ms. Kala admitted that, at that time, she was unable to work because of her ongoing back pain. Ms. Kala’s history of chronic pain [ 14 ] Ms. Kala was in the care of a physiatrist, Dr. Ansel Chu, in the years prior to the First Accident. In a November 14, 2015 report, Dr. Chu noted the following history he received from his patient:

a) Ms. Kala noticed the onset of low back pain in 2014.

b) Over time, Ms. Kala’s low back pain spread to the mid back and then the upper back, mostly on the left side.

c) Her pain was diffuse, and worse at night.

d) Her sleep was poor.

e) Her mood was sad and upset. [ 15 ] On March 8, 2016, Dr. Chu saw Ms. Kala again regarding “her chronic widespread pain syndrome” and Ms. Kala reported to him that the medication he had prescribed had not helped with her pain. She continued to wake up through the night because of pain. On April 26, 2016, Ms. Kala met with Dr. Chu again. They discussed trigger point injections for her ongoing chronic widespread pain involving her upper back, mid back and lower back. [ 16 ] Mr. Chu saw Ms.

Kala again on June 16, 2016, and she reported to him that exercise was helping with her pain. [ 17 ] In a January 4, 2017 letter, Dr. Harjinder Dau, Ms. Kala’s family doctor, noted that Ms. Kala had been suffering from depression and increased lower back pain since December 19, 2016. In a February 10, 2017 letter (approximately two months before the First Accident), Dr. Dau certified that Ms. Kala was unable to work “due to illness/ injury”. [ 18 ] On February 23, 2017, Ms. Kala completed a “Pain Disability Index” when seeing one of the family doctors at Mission Oaks Medical Centre.

On a scale of 1/10, she rated her level of disability from pain as 10/10 with respect to social activities and life support activities, and 5/10 with respect to recreational activities and occupational activities. After the First Accident [ 19 ] Ms. Kala testified that she started to feel pain when she got home after the First Accident. She had pain in her left arm, her head, her jaw and on her left side, from her buttocks to her feet. Also, her hands and feet were numb. [ 20 ] Ms.

Kala attended the Mission Oaks Medical Centre a few days after the First Accident. [ 21 ] She completed an Insurance Claim Application with ICBC in which she was asked to describe any pre-existing injury. In response to this prompt, she wrote: “nothing that I am aware of”.

[ 22 ] In the months following the First Accident, Ms. Kala did physiotherapy, took medication for her pain, and continued to see Dr. Dau regularly. [ 23 ] In November or December 2017, she took a trip to India to attend the memorial service for her deceased father. She first testified that she was in India for two and a half months, but when her own counsel took her to medical records that showed that her trip was only a few weeks, she changed her testimony. [ 24 ] Ms. Kala testified that after the First Accident, her husband took over all the cooking duties in the house because it was painful for her to cook.

Ms. Kala’s husband also took over all the housework and looking after the children. The only household tasks that Ms. Kala could do were non-strenuous activities, such as setting the table and folding clothes. [ 25 ] Nevertheless, Ms. Kala testified that by the end of 2017, she began to feel some abatement of her chronic pain symptoms. She was attending the gym twice a week and taking on some housework. The Second Accident [ 26 ] Ms. Kala testified that after the Second Accident, she felt pain in her right arm, right shoulder, right leg and her whole right side. Her back and neck pain were exacerbated. [ 27 ] Ms.

Kala saw Dr. Dau for her pain after the Second Accident. He referred her to a number of specialists including Dr. Nagaria, a neurologist, Dr. Luongo, a rheumatologist, and Dr. Chu, her physiatrist. At this time, she also started seeing Monty Bhambra, a kinesiologist. Additionally, she attended the Jim Pattison Pain Clinic in Surrey, and the Initium Centre for Pain Medicine in Abbotsford. [ 28 ] Ms. Kala went back to work temporarily in 2020. She picked blueberries for about two weeks in late August 2020. This is the only paid employment she has engaged in since the First Accident. [ 29 ] Ms.

Kala testified that since the Second Accident, she has been unable to do any work around the house. She does not anticipate that she will be able to work at a berry farm in the future, given her pain complaints. Liability for the First Accident Ms. Kala’s evidence about the First Accident [ 30 ] The First Accident took place in Vancouver on the eastbound lanes of Highway 1, between the 1st Avenue onramp and the Boundary Road exit. Ms. Kala was driving herself, her husband and her daughter, Alven, home to Mission from Vancouver. Ms.

Kala was in the driver’s seat, her husband was in the passenger seat and her daughter was in the back seat. [ 31 ] Ms. Kala testified that once she merged her vehicle onto the highway from the 1st Avenue onramp, she immediately moved into the middle lane. When asked to describe the state of traffic immediately before the accident, Ms. Kala testified that the highway was “empty on both sides”: i.e., that there was no traffic on either side of her vehicle. She was driving 50 kilometers per hour. She testified that, while there was no traffic close to her vehicle, there was considerable traffic ahead. Ms.

Kala testified that while she was driving in a straight line in the middle lane, another vehicle collided with her vehicle from behind, on the driver’s side of her vehicle. [ 32 ] Ms. Kala was asked to describe what she felt when her vehicle was hit. She said that she felt a big jolt. She testified that when her vehicle was hit, she felt the car moved to the left. She quickly tried to straighten the car out and she felt the car move to the right. [ 33 ] Ms. Kala testified that immediately after impact, she continued to drive eastbound as she looked for a place to pull over.

She testified that the other driver sped away. Eventually, she was able to find a place to pull over by the side of the highway near the Boundary Road off-ramp. [ 34 ] Ms. Kala testified that once she pulled over, she moved from the driver’s seat to the passenger seat. The vehicle that had collided with her was parked further down the highway, in front of Ms. Kala’s vehicle. Ms. Kala’s husband dealt with the other driver and Ms. Kala claims to have had no interaction with him. Alven Kala’s evidence about the First Accident [ 35 ] At the time of the accident, Alven was 11 years old.

Notwithstanding her young age at the time of the First Accident, Alven’s testimony mirrored her mother’s testimony with precision: she testified that her mother was driving approximately 50 kilometers an hour, there were no cars around them, and that Ms. Kala stayed in the same lane the whole time she was on the highway until the collision happened. On impact, Alven testified that she felt the vehicle shifting left, then right, then left again. After impact, her mother came to a slow stop and pulled over to the side of the road.

Kulwant Singh’s evidence about the First Accident [ 36 ] Like Alven, the evidence of Kulwant Singh, Ms. Kala’s husband, was exactly the same as Ms. Kala’s: he observed that Ms. Kala was driving straight in the middle lane, and a car hit their vehicle from behind. On impact, he too felt the vehicle move left, and then right and then Ms. Kala “put it back straight”. He noticed that the driver of the other vehicle drove a bit further down the highway and stopped. Ms. Kala pulled over by the side of the road behind the other driver.

[37] Mr. Singh testified that after the First Accident, his wife was in no shape to talk to the other driver, so he took her license andwalked over to the other vehicle to exchange information with the other driver. He testified that the other driver begged him not to reportthe accident to ICBC because he was a student and was concerned about his insurance premiums. Abdurrahmann Bahr’s evidence about the First Accident [38] Mr. Bahr is 28 years old and lives in Port Coquitlam.

On the day of the First Accident, he had just driven a friend to the ferryterminal at Horseshoe Bay and was on his way back to Port Coquitlam. He testified that he was driving his Infiniti G35 coupe in the lanenext to the HOV lane, and he noticed Ms. Kala’s vehicle driving erratically. The traffic was moderately heavy and he was driving atabout 70 kilometers an hour. He saw Ms. Kala’s car pull up on his right-hand side and he made eye contact with Ms. Kala. [39] Mr. Bahr testified that after he made eye contact with Ms. Kala to his right, her vehicle drove ahead, moved into his lane and cuthim off.

The front right fender of Mr. Bahr’s vehicle hit the back driver’s side door of Ms. Kala’s vehicle. Mr. Bahr testified that theimpact was not dramatic. He described it as a very light side swipe. He didn’t feel his vehicle move on contact although he heard thesound of contact. [40] After impact, Ms. Kala’s vehicle did not immediately stop. Mr. Bahr pulled over to the side of the road and walked over toMs. Kala’s vehicle, which at this point was stopped in traffic. He knocked on the passenger side window. This caused Ms. Kala to pullher vehicle over to the shoulder. [41] According to Mr.

Bahr, an argument ensued about the exchange of license information. Even though Ms. Kala had been driving,Mr. Singh asked Mr. Bahr to take down Mr. Singh’s driver’s licence information instead of Ms. Kala’s. Mr. Bahr refused, and threatenedto call the police if the correct licence was not provided to him. Expert evidence about the First Accident [42] Bradley Heinrichs is an engineer who was qualified to provide expert evidence about accident reconstruction. [43] Mr. Heinrichs prepared a report opining that the right front wheel of Mr. Bahr’s Infinity and the left rear door area of Ms.

Kala’sCamry came into contact while the vehicles were travelling at similar speeds. He concluded that either the Infiniti moved right towardsthe Camry, with the Camry in its field of view, or the Camry moved left towards the Infiniti, with the Infiniti in its blind spot, or both. Hecould not therefore conclusively determine which party caused the First Accident. Analysis of liability for the First Accident [44] The evidence of Ms. Kala and her family, on the one hand, and Mr. Bahr, on the other, cannot be reconciled.

I therefore mustengage in an analysis of the credibility and reliability of each version of events to determine which version, on a balance of probabilities,is more likely to be true. [45] Credibility and reliability are distinct concepts.

Credibility involves a consideration of whether a witness is telling the truth;reliability concerns itself with a witness’ ability to accurately recall past events. [46] It is important for the court, in assessing credibility, not to rely solely on the personal demeanour of interested witnesses.Determination of credibility must involve a consideration of whether the witnesses’ evidence is consistent with “the preponderance ofthe probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”Faryna v.

Chorny, [1952] 2 D.L.R. 354, (B.C.C.A.) at 357. [47] The court must consider a number of factors in a credibility analysis. These factors include the witness’ ability to observeevents, his or her firmness of memory, the reasonableness of the witness’ evidence, harmony with independent evidence, consistency ofthe witness’ own sworn evidence over time, and any motivation the witness may have to lie: Bradshaw v. Stenner, 2010 BCSC 1398 atpara. 186, aff'd 2012 BCCA 296. [48] This case raises significant credibility and reliability concerns.

The passage of time since the First Accident (six and a half years)gives rise to the inference that all witnesses’ memories will have eroded somewhat since the incident. Additionally, the starkly differentaccounts given by the two parties strongly suggest that one party’s version of events is not credible. [49] Ms. Kala struggled to give evidence even on direct examination. It was only through leading questions and sometimes repeatedprompting from her lawyer that she was able to convey the basic facts about the First Accident. Ms. Kala is, as Dr.

Bentley put it, a poorhistorian: she appears to have a great deal of trouble recalling significant events in her life. Much of her evidence was vague, and she wasnon-responsive to many of her own counsel’s questions about the First Accident, such as the distance between her car and other traffic atthe time of the collision. She appears to have an extremely poor memory, which has made evaluating her evidence more challenging. [50] In the context of Ms.

Kala’s apparent challenges with her memory, the fact that her evidence about the collision itself was almostverbatim the same as her husband and daughter’s evidence raises significant credibility concerns. For example, all three witnesses(including Alven Kala, who was an eleven-year-old child at the time) gave precisely the same evidence on the following three points:there was no traffic on either side of the Camry from the time Ms. Kala entered the highway until the First Accident, Ms. Kala wasdriving at 50 kilometers per hour prior to the First Accident, and Ms.

Kala remained in the same lane from the time she entered thehighway until the time of the First Accident. That all three witnesses would have such precise memory of pre-accident events, when theywould have had no particular reason to be paying attention to such details, is questionable. This is particularly true given that none ofthese three witnesses, particularly Ms. Kala, gave precise evidence when asked on direct or cross-examination about any other matters.

[ 51 ] Also of concern is the evidence of Ms. Kala, Alven Kala and Mr. Singh that on impact they felt the car move left, then right, then left. Mr. Heinrichs explained that a force hitting the back-left side of a vehicle could cause the front of the vehicle to move to the left. This means that the parties sitting in the front seat of the vehicle, namely Ms. Kala and Mr. Singh, would have felt a leftward movement. However, Alven Kala was sitting in the back of the car. The collision was between the front-right side of the defendant’s vehicle and the left-back passenger door of Ms. Kala’s Camry.

It does not make sense that Alven Kala would feel a push to the left in these circumstances. Her experience of the force of the collision, as the person seated closest to impact from the left, would have been a rightward force, not a leftward force. This calls into question the reliability of her memory of this event. [ 52 ] There are also credibility and reliability concerns about Mr. Bahr’s evidence. There are some details that Mr. Bahr clearly remembers incorrectly, such as the presence of an HOV lane where there was none. There are also differences between Mr.

Bahr’s statement to ICBC and his evidence at trial. He told ICBC that he followed the Camry and honked at it after the First Accident. At discovery, he testified that he lost track of the Camry after the accident, although they both ended up on the side of the road. At trial, he testified that as soon as the accident happened, he safely made his way over to the side of the road, and that he did not follow the Camry. These inconsistencies in his evidence cannot be easily reconciled. [ 53 ] In my view, there were significant frailties in the evidence of all of Ms. Kala, Alven Kala, Mr. Singh and Mr. Bahr.

It is difficult to discern whose version of events accords more with the preponderance of probabilities in these circumstances since all the witnesses’ evidence contained improbabilities or inconsistencies. [ 54 ] Upon considering all the evidence as to how the Accident occurred, I think it is most likely that Ms. Kala made a lane change into the lane in which Mr. Bahr was travelling, without checking her blind spot, and struck the front-right side of Mr. Bahr’s vehicle with the back-left side of her vehicle. It is less likely that Mr.

Bahr would have changed lanes and struck the Camry, since the Camry was, at all relevant times, in his field of vision. On this basis, and because the evidence of Ms. Kala and her family members is not reliable, I find that Ms. Kala has failed to prove on a balance of probabilities that the First Accident was caused by Mr. Bahr. As such, I decline to find that Mr. Bahr is liable for the First Accident. Liability for the Second Accident [ 55 ] Mr. Vedder has admitted liability for the Second Accident. Therefore, I must assess the damages suffered by Ms. Kala that were caused by the Second Accident.

Causation Facts Relevant to Causation Medical evidence [ 56 ] Two doctors provided medical opinion evidence on behalf of Ms. Kala: Dr. Dau and Dr. Wasseem. [ 57 ] Dr. Dau is Ms. Kala’s family doctor. In his report, he reviewed Ms. Kala’s lengthy medical history, dating back to when she first became his patient in September 2015, at which time she reported having chronic back pain, neck pain, pins and needles, and difficulty with sleep. In May 2016, Ms. Kala reported to Dr. Dau that she had suffered from chronic back pain for the past two or three years. At that time, Dr.

Dau’s notes indicated that he considered a diagnosis of fibromyalgia. An August 25, 2016 record of a visit with Dr. Dau notes that Ms. Kala has spent a “number of years getting widespread pain involving upper back, mid back and lower back.” [ 58 ] The references in Dr. Dau’s clinical records to Ms. Kala’s back pain are not intermittent. She saw Dr. Dau 19 times between September 2015 and the First Accident in April 2017, and discussed her chronic pain at nearly all of her visits. Between the First Accident and the Second Accident, she continued to see Dr. Dau regularly for her chronic pain symptoms. [ 59 ] In Dr.

Dau’s report, he helpfully created a table that sets out all of Ms. Kala’s symptoms and explained which symptoms were discussed at each doctor’s visit. These symptoms are: headache, tearfulness, chest wall pain, leg/gluteal pain, finger/hand pain, vision problems, anxiety, back pain, thoracic pain, neck pain, hip pain, chronic pain syndrome/ fibromyalgia, shoulder pain, and depression. [ 60 ] Dr. Dau’s table, when reviewed with reference to the Second Accident, provides a very helpful overview of Ms. Kala’s pre- accident medical problems.

It demonstrates that her most frequent complaints before the Second Accident were back pain, neck pain, and chronic pain/ fibromyalgia. All of these complaints were discussed frequently with Dr. Dau before the Second Accident, and continued to be discussed frequently with him after the Second Accident. Some symptoms, such as shoulder pain, anxiety, knee pain, and chest wall pain, only emerged after the Second Accident, but the frequency of these complaints is low compared to Ms.

Kala’s complaints about back pain and neck pain, which have arisen at the majority of her doctor’s visits both before and after the Second Accident. [ 61 ] On cross-examination, Dr. Dau agreed that most of Ms. Kala’s new symptoms since the Second Accident started to taper off after September 2018. He also noted that Ms. Kala’s old symptoms, the ones that pre-dated the First Accident, were complained of more frequently in recent years. [ 62 ] While Dr. Dau was asked to opine on the cause of Ms. Kala’s injuries, he was alive to the complexities of tendering such an opinion in the face of Ms.

Kala’s history of chronic pain. In his report, he suggested that a medical-legal report be sought from a specialist in physical medicine and rehabilitation. [ 63 ] At Dr. Dau’s suggestion, Ms. Kala retained Dr. Zeeshan Waseem, a physiatrist who provided an expert report. Dr. Waseem examined Ms. Kala on June 18, 2021.

[ 64 ] In his report, Dr. Waseem noted Ms. Kala’s history of fibromyalgia, characterized as chronic widespread pain afflicting the entire body. However, he also noted that her pain condition was “stable over time and was noted to be non-disabling”. He also noted that there was no history of traumatic injuries prior to the Accidents. In summarizing Ms. Kala’s education and employment history, he noted that “there is no prior [pre-Accidents] history of prolonged work absences for medical reasons.” [ 65 ] Dr. Waseem’s conclusion with respect to the injuries Ms.

Kala sustained in the First Accident and the Second Accident was as follows: Against the backdrop of pre-existing fibromyalgia that manifested with widespread pain, based on the history obtained and review of provided medical records, Ms. Kala appears to have initially sustained sprain/strain soft tissue injuries predominantly of the cervical, and lumbar spines as a result of the April 13, 2017 accident. She re-injured these areas and aggravated her underlying condition as a result of the April 27, 2018 accident. [ 66 ] On cross-examination, Dr. Waseem admitted that Ms.

Kala did not reveal to him that she was previously injured in the 2010 Accident. Ms. Kala also declined to tell him that she had resigned from her job at Quiznos in 2011 due to a medical issue, although he had asked her if she had ever stopped working due to a medical issue. She also did not tell him that she claimed medical EI in 2014 and in 2016 as a result of being unable to work due to back pain. He agreed that all of these facts would have been important for him to know and may have influenced his opinion. [ 67 ] The defendants tendered the opinion of Dr.

Todd Bentley, who was qualified as an expert in physical medicine and rehabilitation. Dr. Bentley assessed Ms. Kala on July 22, 2020. [ 68 ] Dr. Bentley noted that Ms. Kala was a poor historian and had a poor recollection of the events surrounding the subject accidents. [ 69 ] Dr. Bentley was asked to opine on the role the Accidents play in Ms.

Kala’s ongoing symptoms: From a physical medicine perspective, it is this assessor’s opinion that, it is probably that the index motor vehicle accidents resulted in uncomplicated soft tissue injuries to the cervical, thoracic and lumbar spine, and resulted in a material worsening of these pre-accident conditions; however, it is also opined that, in the time leading up to the date of loss, there may have been an evolving affective disorder that now appears to be the larger issue. Further comment is deferred to the appropriate assessor.

From a musculoskeletal perspective, it is the opinion of this assessor that the stated level of disability is discordant with what would be anticipated given the mechanism of injury in both the subject dates of loss. Ms. Kala’s evidence about her injuries [ 70 ] Ms. Kala’s evidence about her injuries from the First Accident and the Second Accident, and particularly about the extent to which she had pre-existing chronic pain prior to the Accidents, often contradicted reliable documentary evidence and was sometimes self-contradictory. [ 71 ] On cross-examination, Ms.

Kala was asked about the ICBC claim form in which she denied having any pre-existing injuries at the time of the First Accident. She testified: “I did have back pain, but I was doing all my life’s work and my day to day life was going on, and I was working”. This is not true. Ms. Kala was on sickness EI benefits for her back pain from December 2016 to April 1, 2017.

She had worked only intermittently since coming to Canada, taking long stretches of time off, sometimes receiving regular EI benefits, sometimes receiving EI sickness benefits for her back pain, and sometimes receiving no income at all. [ 72 ] I find that Ms. Kala generally downplayed her pre-existing conditions when testifying about her injuries arising from the First Accident and the Second Accident. For example, when asked about the fact that she was going to physiotherapy for back pain prior to the First Accident, she testified that she only went because she was eligible for ten free visits.

She admitted that she was on EI sickness benefits for back pain from December 2016 until the First Accident, but when asked if she was on EI sickness benefits because she was unable to work she responded “No, I was working.” In fact, she was not working at this time. [ 73 ] The plaintiff continually tried to ascribe her long-standing, pre-First Accident chronic back pain to her grief over the death of her father in 2016. This is inconsistent with the medical records, in which the first time she received a note from a doctor saying she was unfit for work due to illness was in 2011.

All of the pre-Accident medical records available at trial, which mostly dated back to September 2015 (although there are sick notes from a previous doctor from 2011 and 2014 stating that she was medically unable to work), were replete with references to her constant and debilitating back pain, long before Ms. Kala’s father’s illness or death. [ 74 ] At times, Ms. Kala’s attempts to link her father’s death with her chronic pain were nonsensical. For example, she was asked about a pain questionnaire she filled out on February 23, 2017, about two months before the First Accident.

On that questionnaire, she rated the impact of her back pain on her ability to engage in social activities at 10/10. When asked about this, she testified that she could not socialize at the time because her father was sick. When counsel pointed out to her that her father died in 2016, prior to the completion of the questionnaire, she did not seek to clarify her answer. [ 75 ] Ms. Kala’s evidence on her history of back pain was confusing. She denied having any illness or injury in 2014, but admitted that she was on medical EI benefits in 2014 for an injury.

On cross-examination, she was asked when she started having back pain and her answer was “I don’t remember anything.” [ 76 ] In assessing Ms. Kala’s reliability as a witness, the Court must be mindful of the cultural context in which these events took place, and be vigilant about avoiding bias or stereotypical reasoning. As noted in in Fu v. Zhu , 2018 BCSC 9 at paras. 39–40 : [39] Some caution had to be exercised in assessing credibility because the witnesses were from another country and culture and did not speak English.

Often cultural and linguistic differences can affect the demeanour of witnesses in ways not necessarily understood by the trier of fact. For this reason, I was hesitant to conclude that a witness was evasive, in case what appeared to be evasiveness could be due to language or cultural differences.

[40] I have approached the evidence aware that nuances might be lost in translation, both in terms of the translation of the question tothe witness and in the answer. Word choice and word order in a sentence might be an interpreter's preference and I have been careful notto form judgment based on the wording of a single answer. Rather, I have considered the whole tenor of the evidence in coming toconclusions as to the facts. In my view it would be a mistake to take a single passage from a witness's evidence as a conclusive admissionagainst interest, given the nuances that might be lost in translation. [77] Ms.

Kala testified through a Punjabi interpreter. I have not found her less credible or less reliable simply because she was easilyconfused by questions and sometimes appeared to have difficulty answering in a manner that was responsive to the questions asked. Todo so, in my view, would risk making an adverse credibility or reliability finding for reasons that had more to do with issues ofinterpretation than with the veracity of her evidence. [78] However, the fact that Ms.

Kala was simply unable to recall important events in her life, such as when in her life she started todevelop back pain, or when she was unable to work due to back pain, causes me to have significant concerns about the reliability of hermemory. Her version of events, many details of which came out through leading questions from her counsel, is that she started to sufferfrom severe back pain and depression as a result of her father’s illness and death, and that her back pain would have resolved but for theAccidents.

This version of events is so thoroughly contradicted by documented medical evidence that I must conclude that it is not true. Law of Causation [79] In order to find that the defendants involved in the Second Accident are liable for Ms. Kala’s personal injuries, I must find thather injuries were caused by the Second Accident. The defendants’ position is that factors unrelated to the Second Accident are primarilyresponsible for Ms. Kala’s pain and functional limitations.

They submit that she is a “crumbling skull” plaintiff due to the chronic paincondition she developed prior to the First Accident, as well as the injuries she suffered in the First Accident, for which no defendant isliable. The defendants seek to have Ms. Kala’s pre-existing injuries accounted for at the causation stage of the analysis. [80] Whether a careless defendant must compensate a plaintiff for an injury is a matter of causation. The amount of compensation thedefendant must pay is a matter of assessment of damages.

It is important to keep in mind the analytical distinction between determiningcausation and assessing damages, since different principles govern the two questions: T.W.N.A. v. Canada (Ministry of IndianAffairs), 2003 BCCA 670 at para. 16 [T.W.N.A.]; Moore v. Kyba, 2012 BCCA 361 at paras. 35–36 [Moore]. [81] The test for causation is the “but for” test. In determining whether there is a causal link between a defendant’s negligence and aplaintiff’s injuries, the court must consider whether, but for the defendant’s acts, the plaintiff would have suffered the same loss.

Theplaintiff must establish on a balance of probabilities that a defendant’s negligence caused or materially contributed to an injury. Thedefendant’s negligence need not be the sole cause of the injury. A defendant may be liable, even though their act alone was not enoughto create the injury: Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458 at 466–67, 140 DLR (4th) 235. In other words, thelaw does not excuse the defendant from liability merely because causal factors for which he or she is not responsible also helped toproduce the harm: Farrant v. Laktin, 2011 BCCA 336 at paras. 9 and 11; Athey; Resurfice Corp. v.

Hanke, 2007 SCC 7; Clements v.Clements, 2012 SCC 32. [82] In Blackwater v. Plint, 2005 SCC 58, Chief Justice McLachlin discussed the principles that inform the analysis of causation intort and those pertinent to the assessment of damages: [78] It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules ofcausation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance ofprobabilities.

Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of theplaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of theplaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his originalposition and should not compensate the plaintiff for any damages he would have suffered anyway… [83] The “crumbling skull” doctrine relates to the assessment of damages, not causation: Andreas v.

Vu, 2020 BCSC 1144 at para. 77,citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 16. At the damages-assessment stage, if the plaintiff has a “crumblingskull”—that is, there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future,regardless of the defendant’s negligence—then this can be taken into account in reducing the overall damage award: Athey at para. 35. [84] As such, I do not agree with the defendants that the analysis of causation is qualified by Ms. Kala’s pre-existing condition.

Whileher chronic pain, depression other medical issues and injuries from the First Accident are most certainly relevant to the assessment ofdamages, these pre-Second Accident conditions do not limit the application of the “but for” test. [85] But for the Second Accident, Ms. Kala would not have suffered all of the new injuries she reported following the SecondAccident in April 2018. Dr. Dau’s evidence is helpful in assessing causation in this case with respect to specific injuries. On the basis ofhis evidence of Ms. Kala’s complaints, I am satisfied that Ms.

Kala suffered a number of soft tissue injuries in the Second Accident,including right shoulder pain, right leg pain, and chest wall pain, all of which have subsided prior to trial. Additionally, Ms. Kalasuffered an exacerbation of her chronic neck pain and back pain as a result of the Second Accident. With respect to all of these injuries, Iam satisfied that the “but for” test has been met. Assessment of Damages Non-Pecuniary Damages [86] Non-pecuniary damages are awarded to compensate a plaintiff for pain, suffering, loss of enjoyment of life, and loss ofamenities.

In assessing non-pecuniary damages, the court may look to awards made in analogous cases. However, each case must turn on

its own unique facts. No two personal injury claims are identical and awarding damages involves an exercise of judgment: Kapelus v. Hu , 2013 BCCA 86 at para. 16 . [ 87 ] In Stapley v. Hejslet , 2006 BCCA 34 at para. 46 , the Court of Appeal enumerated the factors to be considered in assessing non- pecuniary damages.

The factors to be taken into account include: the plaintiff’s age; the nature of the injury; the severity and duration of pain; disability; emotional suffering; impairment of family, marital, and social relationships; impairment of physical abilities; loss of lifestyle; and the plaintiff’s stoicism. [ 88 ] The plaintiff seeks an award of non-pecuniary damages in the amount of $180,000. She relies on the following cases: Thiessen v. Kepfer, 2023 BCSC 1593 ($200,000); Gundarah v. Teves, 2023 BCSC 1540 ($200,000); and Cyr v.

Randhawa, 2023 BCSC 67 ($120,000). [ 89 ] The defendants submit that $50,000 should be awarded for non-pecuniary damages, relying on the cases of Vintila v. Kirkwood , 2016 BCSC 930 ($35,000); Johal v. Conron , 2013 BCSC 1924 ($35,000); and Sawatzky v. Sicilia , 2021 BCSC 2319 ($50,000). [ 90 ] The plaintiff’s cases are not particularly helpful. Thiessen and Gundarah involved plaintiffs who, pre-accident, were in good health with active lifestyles. The permanent, severe chronic pain that resulted from their accident-related injuries robbed them of many elements of their enjoyment of life.

For these plaintiffs, a substantial non-pecuniary damages award was clearly warranted. [ 91 ] Cyr is a somewhat more analogous case, as it involved a plaintiff with complex medical issues pre-accident, whose baseline pre- accident condition was not particularly healthy or active. Nevertheless, the plaintiff in Cyr was able to establish that his injuries caused by the accident severely diminished his enjoyment of life by impeding most aspects of his family and social life, including his ability to enjoy time with his small children, be intimate with his wife, and have a social life with his friends. [ 92 ] Ms.

Kala has not tendered evidence with respect to any diminishment in her social life or in her relationship with her husband or her children. There is no activity she referred to, other than housework and paid labour, that she says she could do before the Second Accident and is unable to do now. [ 93 ] The cases relied on by the defendants are more analogous. In Vintila , at the time of the accident, Ms. Vintila was significantly physically compromised as a result of severe and long-term chronic pain that had rendered her disabled from work.

Justice Bernard observed that she was a “crumbling skull” plaintiff and awarded her $35,000 in non-pecuniary damages on the basis that the defendant’s negligence had temporarily aggravated Ms. Vintila’s pre-existing conditions, increased her pain levels, and marked the end of a short improvement she had been enjoying in her chronic pain symptoms. Johal also involved a plaintiff with significant pre-existing conditions. Justice Donegan found that this plaintiff’s injuries from the accident had worsened her symptoms and awarded her $35,000 in non-pecuniary damages.

Sawatzky also involved a plaintiff with significant pre-existing health concerns. The non-pecuniary damages award in that case was $50,000. [ 94 ] Vintila and Johal are now quite dated. I find that Sawatsky provides an analogous circumstance of a plaintiff with multiple long- standing medical issues that are temporarily made worse by the tortious actions of a defendant. [ 95 ] In this case, the Second Accident temporarily aggravated Ms. Kala’s pre-existing conditions and increased her pain levels. This no doubt caused her some loss of enjoyment of life for a temporary period.

I therefore assess non-pecuniary damages at $50,000. Loss of Earning Capacity [ 96 ] Past and future income loss awards are governed by the same principles. In Falati v. Smith , 2010 BCSC 465 at paras. 40 – 41 , aff’d 2011 BCCA 45 , this Court set out the following principles which inform the assessment of loss of earning capacity: 1. The amount of damages for loss of earning capacity may involve a consideration of hypothetical events. 2. The standard of proof is not the balance of probabilities. The plaintiff need only establish a real and substantial possibility of loss. 3.

The court must make allowances for the possibility that the assumptions upon which an award is based may prove to be wrong. 4. The court must undertake an assessment of damages for loss of earning capacity, rather than take a purely mathematical approach to the issue. Past Income Loss [ 97 ] Ms. Kala seeks an award of $128,000 for past income loss. In support of her position on past income loss, she tendered the expert report of Sergiy Pivnenko. Mr. Pivnenko was instructed to review Ms.

Kala’s pre-accident earnings history and determine what her likely earnings would have been between the date of the First Accident and the date of trial, had the First Accident not occurred. He was instructed that Ms. Kala’s limited involvement in paid work in 2014 and non-participation in the labour force in 2015 were due to family reasons that were not likely to occur again. He was not informed that she was on EI sickness benefits for back pain for a portion of 2014 and 2017. [ 98 ] In his calculations, Mr. Pivnenko assumed that Ms.

Kala would, but for the First Accident, have continued to work every year as a seasonal berry picker and receive EI benefits outside of the berry-picking season. If that assumption were valid, it would make sense to calculate Ms. Kala’s without-accident income with reference to her four best years of employment income. [ 99 ] The difficulty with this approach is that Ms. Kala has never had a particularly strong attachment to the workforce. It appears most unlikely that, but for the Accidents, she would have worked every year.

Her first job in Canada was working a Quiznos, a job she started in 2011 and did not maintain for more than 10 months before she left that employment due to back pain. She picked berries for

two seasons in the summers of 2012 and 2013, and then took the better part of two years out of the workforce. On June 14, 2014, her then-family doctor, Dr. Campbell, wrote a letter certifying that Ms. Kala was unable to work due to illness/injury. That letter was used to support Ms. Kala’s application for EI sick benefits. It is therefore wholly inaccurate to say, as Mr. Pivnenko was told to assume, that Ms. Kala’s extended absence from the labour market in 2014 and 2015 was for family reasons that would not arise again. [ 100 ] Ms. Kala has a long history of chronic pain that has interfered with her working.

Twice, pre-Accidents, she qualified for medical EI as a result of her back pain, which made it impossible for her to work. She also has a history of simply not working, such as when she has taken extended trips of up to ten months to visit family in India. Ms. Kala has not, since moving to Canada in 2009, consistently worked for more than a year in a single job, and she has spent far more time out of the work force than in it. [ 101 ] Further, because the defendants are not liable for the First Accident, I must consider Ms.

Kala’s hypothetical without-accident earnings on the basis of her condition after the First Accident. Ms. Kala testified that it was her injuries from the First Accident that caused her to be unable to work. The Second Accident, according to her evidence, exacerbated the injuries that were caused by the First Accident.

She was starting to feel some recovery from her injuries from the First Accident when the Second Accident happened. [ 102 ] In light of her inconsistent attachment to the workforce, as well as the likelihood that, absent the Second Accident, her chronic pain, fibromyalgia and injuries from the First Accident would have nonetheless interfered with her working, it is probable that, but for the Second Accident, Ms. Kala would have worked only intermittently between the time of the Second Accident and the trial. [ 103 ] I find it likely that, but for the Second Accident, Ms.

Kala would have gone back to work in the summer of 2018, as she testified that by early 2018 she was feeling better. However, it is highly improbable that she would have consistently worked each summer but for the Second Accident. Her chronic back pain, exacerbated by the First Accident, and her lack of regular employment before the Accidents both make it highly unlikely that Ms. Kala would have continued as a berry picker for any significant length of time. [ 104 ] The evidence supports the conclusion that, by 2020, Ms. Kala had returned to her baseline pre-2018 condition.

Monty Bhambra, a kinesiologist who prepared an expert report and testified at trial, noted that Ms. Kala has, during the exercise rehabilitation program she undertook from February 7, 2019 to April 3, 2020, continued to progress in strength, range of motion and biomechanics. Mr. Bhambra testified that, after 2021, he felt that Ms. Kala no longer needed supervised exercise and could continue to do rehabilitation work on her own. [ 105 ] Dr. Dau testified that most of the new symptoms that Ms. Kala had reported since the Second Accident had subsided since 2020.

These included headaches, tearfulness, anxiety, chest wall pain, leg pain and finger and hand pain. Ms. Kala’s present pain complaints are similar to the pain complaints she had prior to the First Accident. [ 106 ] In all the circumstances, I find that any exacerbation of Ms. Kala’s chronic back and neck pain arising from the Second Accident, as well as the constellation of new symptoms that arose after the Second Accident, were resolved by 2020.

Her absence from the workforce after 2020 is not attributable to the injuries she sustained in the Second Accident. [ 107 ] I do, however, find that there is a real and substantial possibility that, but for the Second Accident, Ms. Kala would have worked at the berry farm for the summers of 2018 and 2019, and collected EI in the off season of those years. Using the average annual salary posited by Mr. Pivnkeno ($12,209) and the wage index discount factors set out by Mr.

Pivnenko at his Table 2, and assuming projected EI benefits included by him, this would result in the following calculation: Year Projected Earnings Projected EI Benefits Total 2018 $10,597 $7,736 $18,333 2019 $10,915 $7,968 $18,883 TOTAL $37,216 [ 108 ] I therefore assess Ms. Kala’s past loss of income earning capacity at $37,216. Income tax will need to be deducted from this amount, and I leave it to the parties to agree upon these deductions or, if they cannot agree, to arrange to appear before me for a short hearing to speak to same.

Future Loss of Income Earning Capacity [ 109 ] An award for a plaintiff’s future loss of earning capacity necessarily involves a comparison between the likely future earnings of the plaintiff if the accident had not happened and the plaintiff’s likely future earnings after the accident has happened. As such, the appropriate analytical framework is to compare the plaintiff’s likely future working life with and without the accident: Dornan v. Silva, 2021 BCCA 228 at paras. 156 – 57 . [ 110 ] In Rab v.

Prescott , 2021 BCCA 345 the Court of Appeal articulated a three-part test for assessing damages for future loss of income earning capacity: [47] . . . The first [step] is evidentiary: whether the evidence discloses a potential future event that could lead to a loss of capacity (e.g., chronic injury, future surgery or risk of arthritis, giving rise to the sort of considerations discussed in Brown ). The second is whether, on the evidence, there is a real and substantial possibility that the future event in question will cause a pecuniary loss.

If such a real and substantial possibility exists, the third step is to assess the value of that possible future loss, which step must include assessing the relative likelihood of the possibility occurring… [Emphasis in original.] [ 111 ] As a final step in the damages assessment process, the court must determine whether the damage award is fair and reasonable: Lo

v. Vos, 2021 BCCA 421 at para. 117 . Step 1: Does the evidence disclose a potential future event that could lead to a loss of capacity? [ 112 ] A plaintiff is not entitled to an award for a loss of earning capacity in the absence of any real and substantial possibility of a future event leading to income loss. [ 113 ] It is at this stage of the analysis that the notion of the plaintiff as a “crumbling skull” plaintiff becomes relevant. A defendant need not put the plaintiff in a position better than his or her original position. A defendant is only liable for the injuries caused by the defendant.

In order to establish entitlement to damages for loss of future income earning capacity, Ms. Kala must demonstrate, on evidence, that there is a real and substantial possibility that she will suffer an income loss in the future as a result of the injuries she sustained in the Second Accident—one that would not have otherwise occurred. [ 114 ] I find that Ms. Kala has failed to meet her burden of proof in this regard. On all the evidence, it is clear that Ms. Kala had returned to her pre-Second Accident condition by 2020.

To the extent that her earning capacity is presently impaired, and to the extent that there is a real and substantial possibility that her earning capacity will be impaired in the future, I find that this is due to her chronic pain, fibromyalgia and injuries sustained in the First Accident. Conclusion on future loss of income earning capacity [ 115 ] Having found no real and substantial possibility that Ms. Kala will suffer an income loss in the future as a result of the injuries sustained in the Second Accident, I decline to make an award for future loss of income earning capacity.

Loss of Housekeeping Capacity [ 116 ] A plaintiff’s loss of housekeeping capacity may be compensated by a pecuniary award, or it may be considered as part of the assessment of non-pecuniary damages: McTavish v. MacGillivray et al. , 2000 BCCA 164 at para. 73 . [ 117 ] Where a plaintiff suffers an injury that would make a reasonable person in the plaintiff’s circumstances unable to perform usual and necessary household work, a pecuniary damages award may be appropriate.

Where the loss is more in keeping with a loss of amenities, or increased pain and suffering, the loss may be more appropriately addressed as part of a non-pecuniary damages award: Quigley v. Cymbalisty , 2021 BCCA 33 at para. 72 . [ 118 ] As noted by Justice Huddart in McTavish at para. 63 : When family members have gratuitously done the work the plaintiff can no longer do and the tasks they perform have a market value, that value provides a tangible indication of the loss the plaintiff has suffered and enables the court to assign a specific economic value in monetary terms to the loss.

This does not mean the loss is that of the family members or that they are to be compensated. Their provision of services evidences the plaintiff's loss of capacity and provides a basis for valuing that loss. The loss remains the plaintiff's loss of economic capacity. [ 119 ] Ms. Kala’s family members testified that many of the household services she previously performed are now done by her husband. This includes the bulk of the cooking, cleaning and laundry. Ms.

Kala’s two children, now age 23 and 17, testified that their mother no longer gets them up in the morning, makes breakfast, makes their beds, or cleans their rooms for them. [ 120 ] I am not persuaded that the defendants should be liable to pay a loss of housekeeping award to compensate a plaintiff for housework that other adults in the home ought to be doing for themselves, such as a 23-year-old adult making his own bed.

However, I am also persuaded that the plaintiff’s husband now does work around the house, such as cooking, cleaning, and laundry, that was previously done by the plaintiff and which has a market value. However, I have already found that the exacerbation of the plaintiff’s physical problems attributable to the Second Accident had resolved by 2020. Her ongoing issues of chronic pain are the result of her pre- Second Accident condition.

Therefore, her loss of housekeeping award should be limited to her loss of housekeeping for those years when her Second Accident-related injuries impaired her ability to do housework: namely, the two years following the Second Accident (April 2018–April 2020). [ 121 ] Assessment of loss of housekeeping capacity, like all heads of damages, is an assessment, not a mathematical calculation. However, Mr. Pivnenko provided the Court with helpful data to assist in quantifying this award.

Using statistical data, he posited that the average employed female in Canada with children over 5 years of age spends an average of 3.1 hours a day on domestic work. He then applied an average hourly rate for such work and concluded that the value of household services provided by an average woman in Ms. Kala’s circumstances would have been $20,616 in 2018 and $21,244 in 2019. (Mr. Pivnenko’s calculations for 2018 are for the whole year and do not run from the date of the Second Accident on April 27, 2018). The value of Ms.

Kala’s household work for 2018 and 2019 would have therefore been $41,850. [ 122 ] There are two reasons why this amount must be significantly reduced in considering an award for Ms. Kala. [ 123 ] First, her ability to do any housework was severely diminished by her chronic pain and her injuries from the First Accident. Therefore, her baseline, pre-Second Accident condition would not be such that she would have been capable of performing 3.1 hours a day of housework. By the time of the Second Accident, her husband had taken over most of her cooking and cleaning duties. [ 124 ] Second, Ms.

Kala did not testify that she ceased doing all housework around her home after the Second Accident. There are many daily household tasks that she continued to do, such as setting the table and folding laundry. Therefore, I am of the view that a reduction of approximately 75% from the amounts proposed by Mr. Pivnenko is appropriate.

[ 125 ] In all the circumstances, I assess Ms. Kala’s loss of housekeeping capacity at $5,000 per year for the years 2018 and 2019, for a total loss of housekeeping award of $10,000. Cost of future care [ 126 ] Ms.

Kala seeks an award of $10,000 for cognitive behavioural therapy and an additional $35,000 for “future treatments of her choice.” [ 127 ] The defendants oppose any award for future care costs, on the basis that no evidence has been tendered by the plaintiff to support such an award. [ 128 ] The purpose of an award for future care is to compensate a plaintiff for costs that reasonably may be expected to be incurred to preserve and promote the plaintiff’s mental and physical health: Gignac v.

Insurance Corporation of British Columbia , 2012 BCCA 351 at para. 30 . [ 129 ] The test for assessing future care costs is well-settled and asks whether: (

i) the costs are reasonable; and (ii) the items are medically necessary ( Tsalamandris v. McLeod , 2012 BCCA 239 at para. 62 ). [ 130 ] Quantifying damages for the cost of future care is not a precise accounting exercise. Adjustments must be made for “the contingency that the future may differ from what the evidence at trial indicates”: Krangle ( Guardian ad litem of ) v . Brisco , 2002 SCC 9 at para. 21 ; Prempeh v. Boisvert , 2012 BCSC 304 at para. 108 . [ 131 ] While not a precise accounting exercise, there must be some evidence to support an award for future care costs.

Often this is provided by way of a report from an occupational therapist. While such a report may not always be necessary, a cost of future care award cannot be grounded in mere speculation. [ 132 ] Counsel for the plaintiff submits that Ms. Kala is “open to anything in the way of future care” and suggests that “what she has spent in the past provides a reasonable yardstick for what is likely to be spent in the future.” On the basis that the special damages claim is approximately $35,000, Ms. Kala seeks a cost of future care award in the same amount.

However, I note that she did not marshall any evidence to support her cost of future care claim. [ 133 ] Having found that all of Ms. Kala’s injuries caused by the Second Accident had resolved by 2020, I decline to make an award under this heading. Special Damages [ 134 ] Ms. Kala seeks special damages in the amount of $35,948.78 for treatments she has incurred since the First Accident.

The defendants submit that an appropriate approach to assessing special damages would be to deduct those treatment costs the plaintiff incurred prior to the Second Accident and then discount the special damages award by 50%, to account for the fact that the treatments incurred by the plaintiff were also used to treat her pre-existing chronic pain/ fibromyalgia. [ 135 ] The pre-Second Accident costs claimed under this heading are $600 of physio treatments between the First Accident and the Second Accident, $242.69 for prescriptions between the First Accident and the Second Accident, and mileage in the amount of $30 for two visits to Dr.

Gill prior to the Second Accident. If these amounts are deducted from the award sought, the total award sought would be $35,076.09. [ 136 ] I agree with the defendants that it is appropriate to reduce this amount by 50%. Many of the treatments for which Ms. Kala claims special damages, such as physiotherapy and prescription medicine, were treatments that were recommended by doctors, and pursued by Ms. Kala, long before the First Accident and certainly before the Second Accident. But for the Second Accident, she would still have pursued many of these therapies. [ 137 ] As such, I assess Ms.

Kala’s special damages at $17,500. Conclusion [ 138 ] In sum, I award Ms. Kala the following:

a) Non-Pecuniary damages: $50,000

b) Past Loss of Income Earning Capacity: $37,216 (subject to income tax)

c) Loss of Housekeeping Capacity: $10,000

d) Special Damages $17,500 [ 139 ] If the parties are unable to agree with respect to costs, they may contact Supreme Court Scheduling to arrange for a one-hour hearing before me to speak to same. “Francis J.”