IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Leach v. Insurance Corporation of British  
Columbia,  
2022 BCSC 557  
Date: 20220406  
Docket: M170933  
Registry: Vancouver  
Between:  
And  
Melissa Dawn Leach  
Plaintiff  
John Doe, Hilbar Enterprises Inc. and Rockline Construction Ltd. dba Capilano  
Highway Services Company, Her Majesty the Queen in Right of the Province of  
British Columbia and Insurance Corporation of British Columbia  
Defendants  
Before: The Honourable Chief Justice Hinkson  
Reasons for Judgment  
Counsel for the Plaintiff:  
K. Stewart  
Counsel for the Defendant Insurance  
Corporation of British Columbia:  
J.P. Cahan  
B. Devlin  
Place and Date of Trial:  
Vancouver, B.C.  
November 22-26, 29-30  
December 1, 2021  
Place and Date of Judgment:  
Vancouver, B.C.  
April 6, 2022  
Leach v. Insurance Corporation of British Columbia  
Page 2  
Table of Contents  
OVERVIEW................................................................................................................ 3  
BACKGROUND......................................................................................................... 3  
THE ACCIDENT ........................................................................................................ 6  
CREDIBILITY AND RELIABILITY............................................................................. 8  
EXPERT EVIDENCE RESPECTING THE ACCIDENT ............................................. 9  
Gerald Sdoutz: Vehicle Incident Report ................................................................. 9  
Kurt Ising: Response to the Sdoutz Report .......................................................... 11  
LIABILITY................................................................................................................ 12  
CAUSATION............................................................................................................ 25  
The Plaintiff’s Injuries ........................................................................................... 26  
The Plaintiff’s Evidence .................................................................................... 26  
The Lay Witnesses ........................................................................................... 27  
The Expert Witnesses....................................................................................... 29  
Dr. Caillier ..................................................................................................... 29  
Dr. Lu ............................................................................................................ 32  
Dr. Winston ................................................................................................... 35  
Louise Craig.................................................................................................. 38  
The Legal Principles of Causation........................................................................ 40  
Discussion on Causation...................................................................................... 41  
DAMAGES............................................................................................................... 46  
Non-Pecuniary Damages ..................................................................................... 46  
Loss of Past Income Earning Capacity................................................................. 50  
Loss of Future Income Earning Capacity ............................................................. 55  
Future Cost of Care.............................................................................................. 62  
Special Damages ................................................................................................. 73  
CONCLUSION......................................................................................................... 74  
Leach v. Insurance Corporation of British Columbia  
Page 3  
Overview  
[1]  
The plaintiff, Melissa Dawn Leach, is a master hair stylist. She was injured in  
a motor vehicle accident on August 2, 2016 near Pender Harbour, British Columbia  
(“the accident”). The plaintiff lost control of her vehicle and she collided head-on with  
an oncoming vehicle.  
[2]  
The plaintiff alleges that the negligence of an unidentified owner and operator  
of a vehicle caused the accident. In the result, the Insurance Corporation of British  
Columbia (“ICBC”) is named as a nominal defendant pursuant to the provisions of  
s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 and amendments thereto.  
[3]  
Prior to trial, the plaintiff’s action against the defendants Hilbar Enterprises  
Inc. and Rockline Construction dba Capilano Highway Service Company and Her  
Majesty the Queen in Right of the Province of British Columbia was discontinued.  
Background  
[4]  
The plaintiff was born on December 20, 1982 and grew up in Powell River.  
She has a younger sister, Chelsea, and a younger brother. While she was in high  
school, she developed an interest in hairstyling.  
[5]  
After completing high school in 2000, the plaintiff worked in a local hair salon  
in Powell River for a year. She then went to the Paula Da Costa Aveda Institute  
(“Aveda”) in Victoria for a year to train as a hairstylist. Aveda was described by  
counsel for the plaintiff as a global network of hair styling salons. After her initial  
training at Aveda, the plaintiff then did intensive advanced training at the Aveda  
Advanced Academy in Vancouver for two years. She excelled in both programs,  
graduating at the top of her classes.  
[6]  
The plaintiff also attended international hairstyling workshops, where she  
worked with and learned from top stylists from around the world, in locations such as  
Berlin, Toronto, and New York. She was invited to work in a lead position at New  
York’s annual Fashion Week. She participated in several shows and was offered  
sponsorship to move to New York to work.  
   
Leach v. Insurance Corporation of British Columbia  
Page 4  
[7] The plaintiff gave evidence that she has always struggled with an eating  
disorder. She started drinking alcohol as a teenager and was binge drinking by her  
early 20’s. Regrettably, she found that her alcohol consumption was affecting her  
health, her work, and her family. There were times that she felt she did not want to  
live her life that way anymore, and she took steps to stop drinking alcohol. She was  
also using cocaine.  
[8]  
She ultimately turned down the offer to work in New York, as she was  
struggling with her substance use at that time. Instead, at age 23, she decided to  
move back to Powell River and live with her parents. While there, she sought the  
assistance of a drug and alcohol counsellor and started attending Alcoholics  
Anonymous.  
[9]  
She was able to stop using cocaine and abstain from the use of alcohol. After  
some three months, she did not return to the use of cocaine, but she did return to  
the use of alcohol. She changed how she drank from age 23 to 29 and described  
herself as a functional alcoholic. She said she turned to yoga and practiced it  
everyday. At age 29, she achieved sobriety, which she maintained for the five years  
before the accident occurred.  
[10] In those five years, she built her career in Vancouver, signing with an agency  
that booked commercials and editorial work for her. She took on lead hair positions  
in the entertainment industry, where she was also responsible for the content of print  
ads, billboards, and video shootings. She was the head of the hair department for a  
web series show, and she worked towards membership in the International Alliance  
of Theatrical Stage Employees (“IATSE”) to enable her to work on Hollywood  
productions. She took on independent film projects and editorial/e-commerce work,  
and she organized creative photo shootings to practice and build her skills, network,  
and portfolio.  
[11] The plaintiff gave evidence that IATSE work is customarily 1214 hours per  
day and is paid at a rate of $33/hour for the first eight hours, and time and a half  
thereafter.  
Leach v. Insurance Corporation of British Columbia  
Page 5  
[12] In 2010, the plaintiff started working with Ian Daburn at the Idaburn Salon. By  
that time, she was a qualified master stylist, based on her 10,000 hours of  
experience and education and her talent. Until then, she had been working as an  
employee and only enjoying a percentage of the business she was doing. The  
plaintiff gave evidence that as an employee, a hair stylist earns only 4050% of the  
business they bring into the salon.  
[13] The plaintiff gave evidence that before she moved into chair renting, she  
wanted to learn the skill of managing a salon. When she started with the Idaburn  
Salon, she worked as a manager and educator. She intended to eventually move  
into a chair rental arrangement at that or another salon for a fixed daily rate, and  
after paying for her tools and colouring agents, keep the remainder of the payments  
made by her clients. She gave evidence that it cost her $60 per day to rent a chair.  
[14] After the plaintiff started chair renting at the Idaburn Salon, she enjoyed  
success and reached the point of bringing in $8,000 gross per month. She continued  
her education while she worked in this role and pursued film and editorial work as  
well. She continued to work towards becoming an IATSE member. She took a  
photography certificate at Langara College to advance her photography skills and to  
understand the role of photography on movie sets.  
[15] In August 2013, the plaintiff moved to Australia, and after taking the month of  
July off, worked at an Aveda salon there. Roughly one year later, she returned to  
British Columbia and worked for a couple months in Powell River, then travelled  
again through to the end of 2014.  
[16] In 2015, she worked as an employee at the Black 2 Blond salon, with the goal  
of building her clientele back and eventually returning to chair renting. She told her  
clients she had returned, and she became busy at Black 2 Blond.  
[17] Her co-worker, Jaimie Phillips testified that she saw the plaintiff as  
consistently busy in the years they worked together at Aveda and Black 2 Blond.  
Leach v. Insurance Corporation of British Columbia  
Page 6  
Both Ms. Phillips and the plaintiff testified to the plaintiff double booking clients to  
maximize profits.  
[18] Once the plaintiff had been with Black 2 Blond for a year, she started to take  
steps towards chair renting. She also completed a motion picture industry orientation  
towards the end of 2015, which was the prerequisite for taking on IATSE work. Her  
goal was to work her way up to lead stylist and take on one big project through  
IATSE per year in that capacity.  
[19] At the time of the accident, the plaintiff shared a 500 square foot apartment  
with her sister.  
The Accident  
[20] The plaintiff was 33 years old at the time of the accident. On August 2, 2016,  
she left her parent’s home in Powell River and travelled to the Sunshine Coast,  
driving her father’s 2001 Jeep Cherokee. Her younger sister, Chelsea, was a  
passenger in the vehicle. It was raining, and the road was wet.  
[21] On her way from the Earl’s Cove ferry terminal to the Sechelt ferry terminal,  
the plaintiff was driving south on Highway 101. That highway curves and undulates  
with hills and dales. The plaintiff gave evidence that due to the rain and the wet road,  
she had been driving at less than 50 km/h as she came up the hill leading to the  
curve where the collision occurred.  
[22] The accident occurred in a sharp right-hand curve on Highway 101. Prior to  
the entry to the curve, yellow advisory signs indicate a curve and recommend 30  
km/h speed for southbound traffic.  
[23] The plaintiff said that she proceeded downhill as she approached a 30 km/h  
speed advisory sign and came into a tight curve. In the course of negotiating the  
curve, her vehicle crossed the double solid painted lane divider into the oncoming  
northbound lane and was struck by a pickup truck.  
 
Leach v. Insurance Corporation of British Columbia  
Page 7  
[24] The plaintiff gave evidence that she believed the sign for 30 km/h was a  
“suggestion”. The plaintiff also said that she should have easily been able to  
negotiate the curve at the speed she was travelling despite the wet roadway. She  
alleged that her vehicle lost traction due to a substance on the road that she  
contends was likely fuel spilled by an unidentified owner and driver.  
[25] The plaintiff also gave evidence that her father taught her to drive with caution  
if it rained after a long dry spell, as that could bring oil to the road surface.  
[26] Highway 101 is the only highway between the Langdale ferry terminal and  
Earl’s Cove. As such, it is a heavily used truck route.  
[27] Constable Vander Helm was and is a member of the Sunshine Coast  
detachment of the RCMP, which includes the Pender Harbour area where the  
accident took place. He testified that Highway 101 is the only route for the  
transportation of goods along the Sunshine Coast. It was his evidence that the  
speed limit on the highway was 60 km/h.  
[28] The photograph appended to these reasons for judgment as Schedule A  
depicts that portion of Highway 101 where the accident occurred. The location of the  
impact is adjacent to the service road that is visible on the right of the highway,  
approximately halfway through the curve.  
[29] The plaintiff’s father, Chris Leach, gave evidence that the curve where the  
accident occurred is not the worst on Highway 101.  
[30] In contrast, Cst. Vander Helm said that the curve where the accident occurred  
is probably the worst on Highway 101. He said that it would be reckless to try to take  
that curve at 60 km/h. He testified that when he attended the accident scene, the  
plaintiff’s vehicle was in the northbound lane. He said that he observed what he  
assumed to be a fuel spill in the southbound lane that covered an area of some 50  
metres from the point where the collision occurred to back towards the curve in the  
road.  
Leach v. Insurance Corporation of British Columbia  
Page 8  
[31] I prefer the objective evidence of Cst. Vander Helm to that of the plaintiff’s  
father with respect to the curve where the accident occurred, and I find that the  
accident occurred on the worst curve on the highway.  
[32] Cst. Vander Helm testified that he contacted the highway maintenance  
company regarding the spill on the roadway, as he thought they needed to clean it  
up. He said he was concerned that it was hazardous and that another collision could  
occur.  
[33] Immediately after the accident, the plaintiff had the wherewithal to get herself  
and her sister out of her vehicle, as she saw smoke coming from its engine.  
[34] Chelsea Leach walked around the scene after the collision. She said that she  
saw a slick on the road in the lane that she and the plaintiff had been travelling. She  
gave evidence that she saw firefighters applying what she believed to be sand on  
the slick. Photographs in evidence show a sawdust-like substance on the roadway,  
predominantly in the left half of the southbound lane.  
[35] Mr. Gilkes, the Deputy Fire Chief with the Pender Harbour Fire Department,  
testified that when he attended that accident scene, he felt that the roadway was  
slippery. He confirmed that the absorbent applied to the roadway was confined to  
the area around the vehicles. He said that the purpose of absorbent is to absorb  
oils/diesels/fuels from the road, but not to absorb rain. He testified that the  
firefighters would not have applied the absorbent along the highway unless there  
were areas of contamination. He also said that there is a cliff by the accident scene  
that has a 50 ft. drop to waterfalls, and there is a second drop of 150 ft. thereafter.  
Credibility and Reliability  
[36] The decision of Justice Wilson in Wells v. Kolbe, 2020 BCSC 1530 [Wells] at  
para. 89, addresses the assessment of credibility:  
[89]  
When a plaintiff's claim in a personal injury action is based on  
subjective symptoms, the evidence must be scrutinized most closely in order  
to ensure fairness. The factors to be considered when assessing credibility  
 
Leach v. Insurance Corporation of British Columbia  
Page 9  
were summarized by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at  
para. 186, aff’d 2012 BCCA 296, as follows:  
[186] Credibility involves an assessment of the  
trustworthiness of a witness’ testimony based upon the  
veracity or sincerity of a witness and the accuracy of the  
evidence that the witness provides (Raymond v. Bosanquet  
(Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)).  
The art of assessment involves examination of various factors  
such as the ability and opportunity to observe events, the  
firmness of his memory, the ability to resist the influence of  
interest to modify his recollection, whether the witness’  
evidence harmonizes with independent evidence that has  
been accepted, whether the witness changes his testimony  
during direct and cross-examination, whether the witness’  
testimony seems unreasonable, impossible, or unlikely,  
whether a witness has a motive to lie, and the demeanour of a  
witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202  
(Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)  
[Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128  
(S.C.C.)). Ultimately, the validity of the evidence depends on  
whether the evidence is consistent with the probabilities  
affecting the case as a whole and shown to be in existence at  
the time (Faryna at para. 356).  
[90]  
If the plaintiff’s evidence of the changes in his or her physical, mental,  
and or emotional state following the accident is not convincing, the opinions  
of any experts who have relied on the veracity of that evidence will be  
undermined. Credibility of a plaintiff in a personal injury claim is therefore of  
great importance, especially when the majority of the symptoms are not  
easily seen or measured.  
[91]  
However, if the evidence withstands challenge and the plaintiff is  
found to be credible, the fact that the case is founded on subjective as  
opposed to objective evidence will make no difference because a plaintiff with  
subjective symptoms is no less entitled to compensation than one with  
objective symptoms, provided the plaintiff’s losses are proven.  
[37] As I discuss the evidence from both expert and lay witnesses throughout this  
decision, I provide my assessment of their credibility and reliability based on the  
considerations articulated by Wilson J. in Wells.  
Expert Evidence Respecting the Accident  
Gerald Sdoutz: Vehicle Incident Report  
[38] The plaintiff adduced the evidence of Gerald Sdoutz, an accident  
reconstruction engineer. Mr. Sdoutz is a professional mechanical engineer with  
Bachelor degrees in Science and Applied Science.  
   
Leach v. Insurance Corporation of British Columbia  
Page 10  
[39] Mr. Sdoutz was asked to answer two questions:  
a) Was there oil spilled on the roadway in the locations where the accident  
occurred; and  
b) If there was oil spilled on the road, what type of oil was it and what would  
have caused a vehicle to spill such material on the road?  
[40] He gave uncontroversial evidence that the impact orientation and post-impact  
travel and rotation of the vehicles are consistent with the plaintiff’s Jeep having come  
across from the southbound lane into the oncoming northbound lane in the sharp  
downhill rightward curve in the road.  
[41] Mr. Sdoutz apparently relied upon a statement in an RCMP report, which was  
not introduced in evidence, that “‘firereported the spill as being estimated at a  
kilometer long”.  
[42] Mr. Sdoutz said that as an oil, the effect of diesel fuel on traction or friction on  
a roadway is quite different than gasoline and reduces friction much more. He said  
that a diesel spill on a wet roadway can reduce friction significantly and that the  
effect is comparable to the sudden presence of black ice on the roadway.  
[43] Mr. Sdoutz confirmed friction is reduced as a result of braking.  
[44] Mr. Sdoutz was not asked to determine the speed of the plaintiff’s vehicle  
from the photographic evidence. He did give evidence that a driver could have made  
the curve where the accident occurred at a speed of 3040 kmh.  
[45] Mr. Sdoutz explained that if the road had only been wet, the plaintiff’s loss of  
control would likely not have occurred at a speed of 40 km/h because the friction on  
wet road alone is much higher. He explained that the friction would have been far  
lower with diesel on the road than what would have been anticipated by a driver on a  
wet road.  
Leach v. Insurance Corporation of British Columbia  
Page 11  
[46] Mr. Sdoutz also expressed the opinion that the photographs taken at the  
scene indicated that there was a spill present in the left half of the southbound lane  
for more than 25 meters north of the accident location. Mr. Sdoutz concluded that  
the spill was a fuel spill, most likely diesel, because that is the most likely fuel that  
would have remained on the highway in wet conditions, as gasoline would wash  
away. He also expressed the view that diesel fuel is the most likely fuel to have  
contributed to the friction issues reported by the witnesses.  
[47] Mr. Sdoutz explained that large commercial vehicles, almost all of which are  
diesel, have their tanks mounted to the outside frame on the left side of the vehicle.  
[48] In Mr. Sdoutz’s view, the presence of the spill in the left half of the  
southbound lane was consistent with the following explanation: where a vehicle is  
carrying diesel fuel in its tanks and travelling along the sharp downhill rightward  
curve, centrifugal force would cause the diesel fuel to displace leftward and forward  
causing the fuel level to raise in the forward left half of the tank. The greater the  
speed of the vehicle through the turn, the greater the centrifugal force. Mr. Sdoutz  
opined that if there was a hole in a fuel tank, if its fuel cap was not properly affixed to  
the fuel tank or damaged, if the tank had been overfilled, and/or if the tank vent was  
not equipped with a check valve, then one or all of these factors could result in fuel  
spilling out of the fuel tank.  
[49] Mr. Sdoutz concluded that the most likely cause of the spill was from a larger  
commercial-sized vehicle with exterior mounted fuel tanks that were filled to the  
maximum, and diesel fuel spilled out of the left tank through either a hole, an open  
vent on the fuel tank, or an improperly secured, missing or damaged fuel cap.  
Kurt Ising: Response to the Sdoutz Report  
[50] ICBC adduced the written opinions of Mr. Kurt W. Ising, who is a professional  
engineer with a Master of Science degree from the University of Toronto.  
Specifically, Mr. Ising was asked to review the report prepared by Mr. Sdoutz and  
provide a response report. Mr. Ising was not required for cross-examination by  
counsel for the plaintiff.  
 
Leach v. Insurance Corporation of British Columbia  
Page 12  
[51] Mr. Ising’s conclusions did not contradict most of the opinions of Mr. Sdoutz.  
He agreed with Mr. Sdoutz’s assessment of the impact area and engagement of the  
vehicles. He agreed that oils other than diesel were possibly spilled, but he did not  
offer his opinion on what was the most likely fluid on the roadway.  
[52] Mr. Ising’s relied on the measurements and three-dimensional animation  
created by Mr. Jake Pokorny called PC Crash, which he fed into a computer  
program.  
[53] Mr. Ising noted that one study in the field of accident reconstruction found that  
friction is highly dependent on tire tread and the road surface.  
[54] Mr. Ising stated that the fluid spill may not have been solely concentrated on  
the left half of the southbound lane; however, there is no evidence showing the spill  
extended beyond the accident area.  
[55] Mr. Ising agreed that a diesel spill from a commercial vehicle was a possible  
explanation for the fluid on the roadway; however, he noted that it was “just one  
possible explanation”, and there was insufficient information to “characterize it as the  
most likely source”.  
[56] Lastly, Mr. Ising concluded that under Mr. Sdoutz’s proposed minimum friction  
condition, the plaintiff’s vehicle could have successfully turned the curve without  
sliding into oncoming traffic at the recommended speed of 30 km/h. However, it  
would have slid over into the oncoming lane at 40 km/h.  
Liability  
[57] The plaintiff alleges negligence and breach of statutory duty against ICBC,  
pursuant to s. 24(1) of the Insurance (Vehicle) Act, which provides in part that:  
24(1) Subject to subsection (1.1), if damage to non-vehicle property arises  
out of the use or operation of a vehicle on a highway in British Columbia and  
(a)  
the names of both the owner and the driver of the vehicle are  
not ascertainable, or  
 
Leach v. Insurance Corporation of British Columbia  
Page 13  
(b)  
the name of the driver is not ascertainable, and the owner is  
not liable to an action for damages for the non-vehicle property  
damage,  
any person who has a cause of action  
(c)  
or  
against the owner or the driver, as referred to in paragraph (a),  
(d)  
against the driver, as referred to in paragraph (b),  
in respect of the non-vehicle property damage may bring an action against  
the corporation as nominal defendant, either alone or as a defendant with  
others alleged to be responsible for the non-vehicle property damage.  
[58] ICBC contends that s. 24 is intended to compensate individuals in hit-and-run  
or unidentified driver collisions, and cannot ground a finding of negligence where:  
(a)  
(b)  
(c)  
(d)  
there is no hit-and-run driver and the involvement of an unidentified  
vehicle is purely speculative;  
evidence of an oil, fuel or other contaminant spill is speculative and  
inconclusive;  
the plaintiff was exceeding the posted speed advisory and travelling  
too fast for the conditions; and  
regardless of the fuel spill theory, the accident would not have  
occurred had the plaintiff been travelling at the recommended speed.  
[59] I am unable to accept this restricted view of the effect of s. 24 of the Act. In  
any case where a hit-and-run occurs, the involvement of the unidentified driver is to  
some extent speculative, as is the presence of a substance on a roadway that is not  
chemically or otherwise identified. Such circumstances do not preclude a finding of  
liability; they require the application of inferences.  
[60] It is a breach of s. 204(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, to  
drop or leave certain matters and objects on a highway:  
204(1) A person must not throw, deposit, drop or leave on a highway a glass  
bottle, glass, nail, tack, wire, can or other thing or substance likely to  
injure a person, animal or vehicle on the highway.  
Leach v. Insurance Corporation of British Columbia  
Page 14  
[61] ICBC argued that in order to find liability for a spill under s. 204, I must be  
satisfied on a balance of probabilities that (1) a spill occurred; (2) the spill occurred  
as a result of negligence; and (3) the spill caused the accident.  
[62] Section 23.01 of the Motor Vehicle Act Regulations, B.C. Reg. 26/58 includes  
the following interpretations:  
"regulatory" means a type of traffic sign which advises a motorist or  
pedestrian that certain action is required, and the disregard of the sign  
constitutes an offence;  
"warning" means a type of traffic sign which warns a motorist that conditions  
on or adjacent to a highway are potentially hazardous to pedestrians or to  
vehicular traffic.  
[63] The posted warning sign in question is described in the regulations as follows:  
ADVISORY SPEED TAB (Warning)  
This sign is displayed below warning signs to  
indicate the safe speed in kilometers per hour at  
which it is advisable to proceed under normal  
driving conditions.  
Colour: Black on yellow reflectorized background  
45 x 45 cm  
[64] ICBC submits that the plaintiff’s liability allegation against an unidentified  
driver is based upon a theory that is not grounded in proven facts. Only the plaintiff  
lost control of her vehicle on the sharp corner, in wet conditions following a long dry  
spell, while exceeding the recommended speed. ICBC argued that the plaintiff is  
prima facie negligent for entering the opposing lane and causing a head-on collision  
with an oncoming vehicle.  
[65] The absorbent shown in the photos in evidence is concentrated on the left-  
hand side of the southbound lane. I find that when the fire department members  
were putting down absorbent, they covered the areas that they perceived to be  
slippery.  
Leach v. Insurance Corporation of British Columbia  
Page 15  
[66] I do not consider that the absence of other vehicles losing control at the curve  
where the accident occurred is persuasive in assessing whether there was a spill on  
the highway at that time. Given that absorbent was applied to the roadway shortly  
after the accident, this presumably eliminated the potential for a further accident to  
occur due to any spill, and there is no basis for me to determine how long before the  
accident there may have been any slippery substance on the road.  
[67] ICBC argues that while the suggestion of the presence of an oil or fuel spill  
was raised, no witness evidence confirmed its presence, and such a theory is pure  
speculation.  
[68] ICBC urges that its conclusion with respect to the plaintiff’s speed and her  
ability to safely negotiate the curve where the accident occurred can be inferred from  
the evidence that was adduced at trial.  
[69] The plaintiff argues, and I accept, that the driver of a motor vehicle has a  
common law duty to take all reasonable precautions to avoid spilling diesel or other  
fuels on the roadway that would pose a hazard to any member of the public who  
might foreseeably be harmed by the reduction of traction caused by a fuel spill.  
[70] Mr. Sdoutzs view as to the presence of a spill was based solely upon his  
review of photos, which ICBC contends is unscientific and unreliable. I disagree.  
While the photographs do not permit scientific exactitude, they are reasonable  
depictions of the accident scene, from which experts can draw reasonable  
inferences, if not conclusions.  
[71] The plaintiff contends that she has established that a spill of some sort  
affected the roadway in the area of the accident.  
[72] I am satisfied, on the evidence before me, that there was a slippery  
substance on the roadway where the accident occurred. However, it is not clear  
what that substance was.  
Leach v. Insurance Corporation of British Columbia  
Page 16  
[73] The plaintiff contends that it is almost certain that the spill originated from a  
motor vehicle. She asserts that the central issue to be determined is whether a  
breach of the standard of care can be inferred against the driver or owner of that  
motor vehicle based on the direct and circumstantial evidence.  
[74] The doctrine of res ipsa loquitur, or “the thing speaks for itself”, was  
considered in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R.  
424, and the Supreme Court of Canada confirmed the principles applicable to permit  
an inference of negligence to be drawn. At para. 27, the Court concluded that the  
doctrine ought to be treated as “expired” and of no analytical assistance, and Justice  
Major set out the correct approach for dealing with circumstantial evidence in  
negligence cases stating:  
[27]  
That evidence is more sensibly dealt with by the trier of fact, who  
should weigh the circumstantial evidence with the direct evidence, if any, to  
determine whether the plaintiff has established on a balance of probabilities a  
prima facie case of negligence against the defendant. Once the plaintiff has  
done so, the defendant must present evidence negating that of the plaintiff or  
necessarily the plaintiff will succeed.  
[75] In Bhatti v. Insurance Corp. of British Columbia (1994), 99 B.C.L.R. (2d) 162  
(C.A.), the plaintiff claimed under the unidentified driver provisions when she lost  
control of her vehicle after coming upon a large piece of truck tire lying in the  
roadway. At trial and on appeal, the action was dismissed on the basis that the  
evidence did not justify a finding of negligence, as the presence of the piece of tire  
on the road was not sufficient evidence to justify negligence on behalf of the owner  
or driver of the unidentified vehicle.  
[76] In Michel v. John Doe, 2008 BCSC 40 [Michel], aff’d 2009 BCCA 225, the  
plaintiff sustained serious injuries while walking on the shoulder of a highway when  
he was struck in the head by a rock that came off a logging truck. The driver and  
owner of the truck were never identified. Justice Meiklem was not satisfied on the  
balance of probabilities that the evidence supported an inference of negligence.  
After establishing the standard of care, Justice Meiklem concluded that the fact the  
rock came off the logging truck was not, by itself, sufficient to establish the standard  
Leach v. Insurance Corporation of British Columbia  
Page 17  
of care had been breached. Justice Meiklem was unable to find that the rock  
probably would have been discovered through a proper pre-trip inspection if one had  
been done. As the plaintiff did not establish a prima facie case, the defendants were  
not required to adduce evidence to the contrary. Meiklem J. concluded that the  
accident was equally as likely to have occurred without negligence as with it and  
dismissed the action after a summary trial. His judgment was affirmed on appeal.  
[77] In Michel, there was no particular reason for the plaintiff to have been on alert  
for a rock in the unidentified vehicle. However, in the case before me, the plaintiff  
was aware of the weather conditions, the sharp curve where the accident occurred,  
and the recommended speed at which to negotiate the worst curve on the highway.  
[78] The plaintiff submitted that the direct and circumstantial evidence in her case  
is sufficient to establish, on a balance of probabilities, that due to the negligence of  
the driver or owner of a motor vehicle, a large amount of diesel was spilled from a  
fuel tank onto the highway. She contended that it is likely that the diesel spilled from  
of an overfilled and improperly sealed fuel tank on a large truck. She also argued  
that but for the diesel on the highway, the plaintiff’s vehicle likely would not have slid  
across the highway and the collision would not have occurred. Therefore, she  
contended that she had established a prima facie case of negligence, which can  
only be displaced by evidence to the contrary of which she says there is none.  
[79] I do not accept this simplistic argument. Mr. Sdoutz postulated a number of  
alternative causes for the spill, and not all of them permit an inference of negligence  
to be drawn. For example, a hole in a fuel tank may be a latent defect and not  
readily apparent to the owner or driver. A fuel cap improperly affixed to the fuel tank  
may not have been applied by the driver or the owner’s staff and may not have been  
apparent until it was removed. If it were damaged, then, like a hole in the tank, it  
may be a latent defect and not readily apparent to the owner or driver.  
[80] Alternatively, if the tank vent was not equipped with a check valve that might  
permit the inference of negligence. an overfilled tank could be attributed to the  
unidentified driver, but Mr. Sdoutz offered no evidence of the amount of overflow that  
Leach v. Insurance Corporation of British Columbia  
Page 18  
would result in a spillage of fuel. This theory also begs the question of the range of  
the vehicle’s speed to the point where spillage would not be a problem.  
[81] There is no evidence of where, if at all, a truck might have been able to take  
on fuel along Highway 101.  
[82] In Fedosenko v. Insurance Corp. of British Columbia (1983), Victoria Registry  
Number 82/1090 [Fedosenko], Justice Wallace found that it was pure speculation to  
infer that oil on the roadway was caused by the negligent use or operation of a motor  
vehicle, as one could readily envisage any number of ways oil might drip onto a  
roadway without negligence. Wallace J. concluded that oil on the roadway was a  
neutral factequally consistent with negligence or no negligence.  
[83] In Ahluwalia v. Casselman, [1988] B.C.J. No. 841 (S.C.) [Ahluwalia], a driver  
hit a large patch of diesel fuel on the roadway, lost control, crossed into the  
oncoming traffic, and collided with a truck proceeding in the opposite direction. The  
plaintiffs claimed against ICBC for the negligence of the unidentified driver or owner  
of the vehicle that was alleged to be the source of the diesel fuel spill. Justice  
Southin, as she then was, distinguished Fedosenko, finding instead that the  
presence of diesel fuel on the roadway is not quite as neutral as the presence of oil  
because diesel fuel spill is more likely caused by the driver’s negligence than an oil  
spill. Justice Southin found on a “mere tipping of the scales that this accident was  
caused by the negligence of any unknown driver or motorist”.  
[84] The plaintiff in this case contends that Ahluwalia is comparable to her case.  
She contends that the fueling of a motor vehicle is under the control of the driver of  
the vehicle and a large spill from the fuel tank would not ordinarily happen if proper  
care is exercised. She asserts there is ample evidence to establish that diesel spilled  
from a full fuel tank of a large truck where the accident occurred. The plaintiff asserts  
that this conclusion is also supported by the evidence of Mr. Sdoutz.  
[85] However, I am not satisfied that the evidence supports such a finding in this  
case.  
Leach v. Insurance Corporation of British Columbia  
Page 19  
[86] In Suzuki v. Bain, 2005 BCSC 1276 [Suzuki], Justice Bauman, as he then  
was, found an inference of negligence on behalf of the defendant because his  
vehicle lost control and crossed the center line. A central issue in that case was  
whether the curve was contaminated by diesel fuel causing the roadway to be  
slippery. Bauman J. concluded, on the whole of the evidence, that notwithstanding  
the presence of some substance on the highway, the curve in question could have  
been successfully negotiated by a car travelling at a speed appropriate to the known  
and reasonably foreseeable road conditions: at para. 49. Therefore, Bauman J.  
found the defendants liable, as they were unable to show how the accident might  
have occurred without negligence.  
[87] An inference of negligence on behalf of the plaintiff arises in this case  
because, like the defendant in Suzuki, the plaintiff lost control and crossed the  
center line into the oncoming traffic lane. The issue, therefore, is whether the curve  
could have been negotiated at an appropriate speed: Suzuki at para. 26.  
[88] The plaintiff contends that Mr. Ising misstated the low friction range proposed  
by Mr. Sdoutz for a diesel-contaminated road, as Mr. Sdoutz’s evidence was that a  
wet roadway has 0.55 friction, with 1 being the highest, and 0 being the lowest. His  
low friction estimate was 0.05 to 0.12 assuming a wet, smooth asphalt surface, and  
his range of 0.25 to 0.30 assumed a wet, rough asphalt road. There is no evidence  
as to the roughness or otherwise of Highway 101 where the accident occurred, but  
the photographs that were introduced into evidence suggested a pebbled asphalt  
road surface.  
[89] Mr. Sdoutz pointed out that a study Mr. Ising relied upon found a low friction  
estimate on a wet smooth asphalt roadway as low as 0.05 to 0.12, but Mr. Ising used  
a friction of .25 as the basis for his opinion of the ability of a vehicle to take the sharp  
curve where the accident occurred at 30 km/h, which he qualified by commenting  
that at a higher friction rate, a loss of control would have been even less likely.  
[90] The plaintiff argued that Mr. Ising’s opinion assumes that the plaintiff was  
driving at a constant speed of 40 km/h at the misstated minimum friction condition of  
Leach v. Insurance Corporation of British Columbia  
Page 20  
0.25 to negotiate the curve, despite her evidence that she was braking before  
entering the curve, meaning she would not have been travelling at any constant  
speed.  
[91] Mr. Ising stated that “control loss would have been less likely at friction values  
higher than 0.25.” The plaintiff contends that the obvious corollary is that control loss  
would have been more likely at friction values lower than 0.25, which correlates with  
Mr. Sdoutz’s minimum low friction estimate.  
[92] The plaintiff thus contended that by relying on the misstatement of  
Mr. Sdoutz’s low friction estimated at 0.25, Mr. Ising opined that the plaintiff’s vehicle  
could have negotiated the curve at a constant 30 km/h without sliding into the  
oncoming lane.  
[93] The plaintiff argued that Mr. Sdoutz did not rely on Mr. Pokorny’s data and  
complained that his data was never entered into evidence, removing any evidentiary  
foundation for Mr. Ising’s opinion. Clearly Mr. Pokorny’s data was known to  
Mr. Sdoutz, and I consider it to be part of the scientific literature known to those who  
engage in accident reconstruction. I conclude that it was unnecessary to enter it into  
evidence.  
[94] No evidence was adduced from any emergency or road service evidence  
confirming the presence of an oil or fuel spill.  
[95] Mr. Gilkes, said that while the road surface was slippery, he observed no spill  
and made no report of a spill to highway maintenance.  
[96] The plaintiff gave evidence that a speed advisory sign is not a speed limit, but  
merely a suggestion. She contends that a yellow 30 km/h advisory sign indicates the  
safe speed at which it is advisable to proceed under normal driving conditions. The  
regulatory speed limit is 60 km/h. The plaintiff further contends that even if she was  
travelling 40 or 50 km/h, there is no evidence suggesting that she would not have  
successfully negotiated the curve in the absence of the diesel on the roadway. The  
Leach v. Insurance Corporation of British Columbia  
Page 21  
plaintiff was unable to say if she was travelling between 4050 km/h when she lost  
control of her vehicle.  
[97] This, however, ignores the fact that wet conditions are not normal driving  
conditions. Mr. Sdoutz was asked in cross-examination if the advisory speed is the  
reasonable speed for wet conditions, and he said that there is no need to travel at 30  
km/h in solely wet conditions.  
[98] Despite the advisory sign, the plaintiff’s argument begs the question of when,  
if not in wet weather, the advisory should be adhered to by drivers.  
[99] In Singleton v. Morris, 2009 BCSC 1935, it had been raining and the road was  
wet. The plaintiff brought her truck to a stop at a stop sign at the bottom of a very  
steep hill. The defendant was coming down the hill behind the plaintiff in a SUV and  
ran into the rear of the plaintiff’s vehicle. The defendant said she applied her brakes,  
but her vehicle did not stop. The plaintiff argued that the defendant was travelling  
over the speed limit and, in any case, too fast for the conditions. The defendant  
argued she was not responsible because there was an unexpected oily fluid on the  
roadway that prevented her from stopping.  
[100] Justice Martinson found that despite the absence of accident reconstruction  
evidence of speed, there clearly was an oily fluid on the roadway as there were  
witnesses to it and it took eight bags of absorbal to remove it. The defendant’s  
evidence was that she had been travelling around 50 km/h, although she could have  
been going faster or slower.  
[101] Martinson J. concluded that the evidence showed that if the defendant had  
been driving at 61 km/h when she applied her brakes, she would not have been able  
to stop, even if the roadway was only wet. However, the defendant’s evidence was  
that she was driving cautiously for the conditions. Martinson J. found that the there  
was no reliable evidence that the defendant was driving too fast for the conditions  
absent the oil, and found the defendant’s evidence that her speed may have been  
greater than 50 km/h when she first braked was not reliable. The trial judge found  
Leach v. Insurance Corporation of British Columbia  
Page 22  
that oil on the roadway provided an explanation for the collision and that there is no  
onus of perfection, and concluded that the defendant acted reasonably and therefore  
the plaintiff did not discharge her onus to prove the defendant was negligent.  
[102] The plaintiff argues that there is no evidence that the plaintiff was travelling  
over the advisory speed at the time she lost control of her vehicle, or that travelling  
over that speed, she could have safely negotiated the curve.  
[103] She also argued that Mr. Ising did not give a range of speeds or a maximum  
speed at which the Jeep could negotiate the curve. While that is true, the point of his  
evidence was that the curve could have safely been negotiated at a speed of 30  
km/h.  
[104] The plaintiff contends that there is no evidence that her vehicle could not  
have safely negotiated the curve even when wet, if she was travelling the posted  
speed limit of 60 km/h. If the plaintiff was indeed travelling at that speed it would  
have been without any heed to the advisory speed limit, and would, in my view, have  
been negligent for her to have done so. This ignores Mr. Ising’s conclusion that the  
plaintiff’s vehicle would not have slid into oncoming traffic if it had been travelling at  
the recommended speed.  
[105] Mr. Sdoutz was asked in cross-examination whether he disagreed with  
Mr. Ising’s opinion that had the plaintiff been doing 30 km/h, the collision would not  
have occurred. He said that he had not reviewed Mr. Ising’s PC Crash data, but he  
had no reason to believe that that conclusion was wrong.  
[106] Mr. Sdoutz is no stranger to this Court. In Racine v. Porco, 2013 BCSC 742,  
Justice Baird rejected Mr. Sdoutz’s opinions, for the reasons he expressed at  
paras. 72 and 7475:  
[72]  
It is a major weakness of Mr. Sdoutz’s opinion that he assumed there  
had been rear suspension failure when the existence or absence of such  
failure is the only question to be determined at trial.  
...  
Leach v. Insurance Corporation of British Columbia  
[74] Furthermore, I am not persuaded by Mr. Sdoutz’s proposition that a  
Page 23  
slightly longer and stiffer spring coil placed bending loads on the rear shock  
that exceeded its design limits and led inexorably to shock failure. On my  
assessment of the evidence, this is a conclusory statement wholly  
unsubstantiated by any study, experiment or investigation. My suspicion that  
this proposition has scant merit is heightened by Mr. Sdoutz’s failure to  
muster any concrete proof of it, even in rebuttal to Dr. Cepuš.  
[75]  
Leaving these frailties aside, however, the centerpiece of Mr. Sdoutz’s  
opinion was that the posited failure of the rear suspension caused the rear  
tire to “lock up”, which he called “the vital link to the crash.” The obvious  
weakness of this theory is that the plaintiff’s narrative of evidence,  
corroborated by that of Mr. Hooper, clearly establishes that the rear wheel did  
not lock up.  
[107] In Moore v. Zapalski, 2003 BCSC 494, at para. 41, Justice Macaulay did not  
find Mr. Sdoutz’s evidence to be reliable. Macaulay J. described his evidence as  
largely speculative, as it was based on his interpretation of the photographs rather  
than on clear photographic evidence or facts otherwise proven”: at para. 43. In my  
view that depiction fairly applies to his evidence before me.  
[108] Here, the only evidence of the plaintiff’s speed is from her and her sister.  
Their estimates of speed suffer from the usual frailties involved in making precise  
estimates as discussed in Singleton. The plaintiff contends that she was driving  
cautiously for the road and weather conditions, travelling under 50 km/h coming up  
the hill because she knew she was approaching the corner. She knew it was sharp  
and wanted to slow down, as she was familiar with the road. She said that she  
applied her brakes as she descended the hill, then applied them again prior to  
entering the corner.  
[109] However, that is not what she told Cst. Vander Helm. The statement taken by  
Cst. Vander Helm shortly following the collision confirmed that neither the plaintiff  
nor her sister knew the speed at which they were travelling. While both asserted that  
the speed was slow, their estimates of speed quickly reduced during the course of  
the interview.  
[110] The statement recorded, in part:  
Leach v. Insurance Corporation of British Columbia  
Page 24  
Melissa Leach: Uhm I came around the corner, uhm going under the speed  
limit, and lost control of the vehicle, it slipped and hit an oncoming went and  
swerved over into the other lane and hit an oncoming truck, and our airbags  
went off and we all got out of the vehicle, everyone, myself and the others in  
the other vehicle and we asked if everyone was okay and everyone seemed  
to be okay. I think we were just all in shock and then we called the police. My  
sister called the police, and we were all just hugging each other and just  
making sure that the kids were okay and the parents were okay and my sister  
and I were okay and then people came and just stopped and everyone else  
came so, yeah.  
Cst. Vander Helm: Okay. And what speed were you going? Do you know?  
Melissa Leach: Uhm I think I was going…  
Chelsea Leach: Probably like 50, not fast.  
Cst. Vander Helm: Sorry how fast?  
Chelsea Leach: Probably like 40?  
Melissa Leach: 40, yeah.  
Cst. Vander Helm: 40?  
Melissa Leach: Yeah.  
Cst. Vander helm: Okay.  
Chelsea Leach: It was slow, It was slow.  
Cst. Vadner Helm: Yeah taking a tight corner.  
Melissa Leach: Yeah.  
Chelsea Leach: It was probably like between 30 and 40, in that range. Like  
honestly it happened so slow.  
Melissa Leach: Slow. I knew instantly because the road was slippery.  
Cst. Vadner Helm: Mm hm.  
Melissa Leach: And it was like, like the road was so slippery and I knew I  
know the roads like, I know these roads.  
[111] Based on this evidence, I do not believe that that the plaintiff has a reliable  
recollection of the speed at which she was travelling as she proceeded uphill toward  
the curve where the accident occurred. There was no need for her to have a  
recollection, and no need for her to slow as she travelled uphill. The plaintiff’s  
evidence about her uphill speed is part of the basis for her evidence that her speed  
as she proceeded downhill toward the curve must have been considerably slower  
that the posted speed limit and closer to the advisory speed. I reject her evidence as  
to her downhill speed as wishful reconstruction on her part about what she would  
like to believe occurred as she approached the curve where the accident occurred.  
Leach v. Insurance Corporation of British Columbia  
Page 25  
[112] Chelsea Leach believed that the speed limit on Highway 101 was 50 km/h.  
She gave evidence that the plaintiff was going 3040 km/h in the curve where the  
accident occurred, but she conceded that she did not look at the speedometer. Her  
impression of the speed at which her vehicle was travelling may have been affected  
by her misunderstanding of the posted speed limit. There is no reason for her to  
have made a note of the speed at which her sister was driving into the curve, and I  
am unwilling to accept her evidence the plaintiff was driving slowly as they came to  
the curve where the accident occurred.  
[113] I am prepared to find that there was a substance on the southbound lane of  
Highway 101 where the accident occurred that reduced the traction for southbound  
vehicles, but I am not prepared to find that it can be taken to be diesel oil, or that it  
found its way onto the highway as a result of the negligence of the driver of another  
vehicle.  
[114] On the balance of probabilities, I find that the plaintiff was likely travelling at  
the posted speed limit of 60 km/h as she travelled up the hill toward the crest that led  
to the curve where the accident occurred. I find that she may have slowed travelling  
downhill to the accident scene, but to no less than 50 km/h, the speed that her sister  
first volunteered to Cst. Vander Helm.  
[115] I further find that had she traveled into the curve where the accident occurred,  
at a safe speed, she would not have lost control of her vehicle and crossed the  
center lane between north and southbound vehicles.  
[116] I therefore find that the accident in which the plaintiff was injured was the  
result of her own negligence in traveling at a speed that was excessive for the road  
and weather conditions, and I dismiss her claim.  
Causation  
[117] Recognizing that the plaintiff may choose to appeal my decision respecting  
liability, I will therefore assess causation and the calculation of damages to which  
she would have been entitled, had I found liability in her favour.  
 
Leach v. Insurance Corporation of British Columbia  
Page 26  
The Plaintiff’s Injuries  
The Plaintiff’s Evidence  
[118] The plaintiff described having a panic attack after the collision. It was her  
evidence that at the accident scene, her foot was painful and she felt she could not  
walk on it, and felt overwhelmed, sad, and upset. She said that she subsequently  
experienced nightmares and flashbacks, and described a fear that she had of going  
over the cliff at the scene, and the guilt she felt about her sister’s injuries. She  
described replaying in her mind what might have happened, and pulling away from  
her sister. She feels that they have not regained their former closeness.  
[119] At the scene of the accident the plaintiff reported that she had right ankle pain  
and chest pain where her seatbelt had been. She did not report head or neck pain,  
dizziness, or a headache, and refused transport to the hospital. She did go to the  
Burnaby Hospital later that night and continued to complain of chest and right ankle  
pain, in addition to neck pain. She was diagnosed with a neck strain and an ankle  
fracture and was discharged with a walker boot.  
[120] The plaintiff described her anxiety and depression. She described isolating  
herself and stepping back from seeking out romantic relationships. She described  
returning to binge drinking shortly after the collision to self-medicate, because she  
felt that it did not matter that she stayed sober anymore. She reached out for  
assistance through her yoga community, counselling, and a life coach. She feels  
shame and guilt about her drinking.  
[121] On June 7, 2018, at an appointment with psychologist Dr. Chuck Jung, the  
plaintiff reported that following the accident she began drinking alcohol again, and  
that this escalated into binge drinking. She stated that this would cause her to feel  
hung over, depressed, and that she engaged in suicidal ideation. She reported that  
the symptoms worsened after the summer of 2017.  
[122] On January 22, 2018, the plaintiff saw a neurologist, Dr. Fox, regarding a  
possible concussion. She reported daily dizziness, mild tinnitus, headaches, fear of  
   
Leach v. Insurance Corporation of British Columbia  
Page 27  
loud sounds, and ongoing pain in her neck, shoulder, and lower back. Dr. Fox noted  
that her symptoms were consistent with post-concussive syndrome, but that her  
neurological exam was normal. Dr. Fox expressed the view that she should  
gradually improve toward her previous level of functioning.  
[123] In January 2019, the plaintiff attended a yoga retreat.  
[124] The plaintiff described her ongoing symptoms: neck, shoulder, and back pain  
daily; daily headaches but reduced intensity with being off work; ongoing difficulties  
with multitasking and focus; and sensitivity with noise, light, and smell. She  
described her present physical and cognitive difficulties with work, and difficulty with  
looking down, blow drying hair, washing hair, and multitasking. She described  
dizziness that has recently resolved. She said she wears runners at work now and  
feels embarrassed when she makes mistakes at work.  
[125] At trial, the plaintiff continued to complain of soft tissue pain and anxiety. She  
said that her life had recently changed dramatically, in that she was engaged to be  
married, became pregnant, moved to Campbell River, and stopped working. She  
was not using medications and had received modest treatment in the preceding  
year. She was optimistic about her future and had developed a plan for return to  
work as a hairstylist in mid-2023.  
The Lay Witnesses  
[126] The lay witnesses who gave evidence with respect to the plaintiff’s condition  
both before and after the accident were her mother: Doreen Leach, her father: Chris  
Leach, her sister: Chelsea, a former colleague: Jaimie Phillips, a former client: Jill  
Ross-Nickles, and her fiancé: Logan Deveny.  
[127] In summary, their evidence confirms that prior to the accident, the plaintiff  
was active and focused on her career and on wellness and yoga. She was vibrant,  
social, popular, adventurous, outgoing, passionate, and career-driven.  
 
Leach v. Insurance Corporation of British Columbia  
Page 28  
[128] The plaintiff’s family described the physical and emotional pain that they saw  
in her immediately following the accident and described her apparent difficulties with  
sleep, heightened emotional state, as well as physically appearing slow and having  
difficulty walking with her broken ankle. They described her laying down, using  
essential oils, massaging her body, stretching, looking tired, run down and restricted  
in her body movement.  
[129] Ms. Ross-Nickles described the plaintiff’s weight gain and unkempt  
appearance after the accident, and she and others noted that the plaintiff was  
quieter and less vibrant. The lay witnesses were consistent in describing the plaintiff  
not wanting to be around loud noises in the salons and at home with the television.  
[130] Chelsea said that the plaintiff had a panic attack at the scene of the accident.  
She and her father both shared a concern about the plaintiff returning to the use of  
alcohol following the collision. Chelsea talked about the strain this put on their  
relationship and the distance in their relationship after the collision.  
[131] In cross-examination, Chelsea agreed that her sister is now on a better path,  
but said that she still struggles physically and emotionally.  
[132] Ms. Phillips said she was inspired by the plaintiff prior to the collision. She  
and Ms. Ross-Nickles said that after the collision, the plaintiff took on fewer clients  
and spaced out her days more. Ms. Phillips said that the plaintiff took more breaks  
and took more days between shifts. Ms. Phillips said that even before the collision,  
when the plaintiff had hangovers, she always showed up at work. She said that she  
was aware of comments about the plaintiff’s stress levels by clients after the  
collision. She testified that she saw the plaintiff’s quality of service decline in terms of  
doing dry cuts instead of full service with massage and wash. She saw the plaintiff  
offering quicker services and taking fewer clients.  
[133] Ms. Ross-Nickles described the plaintiff cancelling appointments, being less  
available for appointments, and making mistakes with her colour. She confirmed in  
cross-examination that the necessary corrections to her colouring went beyond trial  
Leach v. Insurance Corporation of British Columbia  
Page 29  
and error. She said that the plaintiff seemed to need quiet, would sometimes excuse  
herself to an anteroom, and would ask her not to speak to her while mixing colour.  
She described their conversations as being less light-hearted after the collision.  
[134] Mr. Deveny did not know the plaintiff prior to the accident. He described her  
present condition as having headaches that seemed to go on for days and talked  
about questioning whether to enter a long-term relationship with her. He described  
her as a very nervous passenger to the point of causing conflict in their relationship.  
He described that she could get moody. He described the “sloughing off” of  
housekeeping that the plaintiff places on him as a source of conflict. However, he  
described her as being less stressed and having less intense pain since being off  
work.  
The Expert Witnesses  
Dr. Caillier  
[135] Dr. Caillier is a specialist in physical medicine and rehabilitation. She never  
treated the plaintiff, but she assessed her on July 12, 2021 and produced a report  
dated the same day.  
[136] At the time of her assessment, Dr. Caillier noted the plaintiff walked her dog  
two to three times a day for 4560 minutes and walked 12,000 steps per day; the  
plaintiff was also involved in weight training with a physiotherapist and chiropractor  
once weekly, swimming three to five times per week, as well as daily stretching and  
using a weighted hula-hoop.  
[137] Dr. Caillier agreed that the results of her examination of the plaintiff were  
normal, other than muscle spasm in the upper trapezius muscles and rhomboid  
regions.  
[138] The plaintiff had no neuroimaging done, a tool often used to assess brain  
injury. Dr. Caillier noted that the plaintiff did not describe any loss of consciousness  
or hitting her head at the time of the accident; however, she could still have had a  
mild traumatic brain injury (“MTBI”) without those factors.  
   
Leach v. Insurance Corporation of British Columbia  
Page 30  
[139] Dr. Caillier agreed that the plaintiff’s pre-accident medical records were  
suggestive of the fact that the plaintiff did have some headaches prior to the  
accident, albeit not limiting or restricting her.  
[140] Dr. Caillier expressed her view that as a result of the collision, the plaintiff  
sustained a MTBI based on the subjective complaints of the plaintiff both in the  
history provided to her, and in other reported medical examinations, rather than  
objective signs or symptoms.  
[141] She noted that the January 22, 2018 assessment by Dr. Fox, the neurologist,  
indicated that the plaintiff was neurologically normal, but Dr. Fox assessed the  
plaintiff as “non-specific” due to her view that cognitive dysfunction is impacted by  
various issues and is multifactorial. She explained that a normal neurological  
examination is expected for a diagnosis of post-concussive syndrome; if there were  
neurological findings, the injury would be considered more significant than an MTBI.  
[142] I have reached the conclusion that Dr. Caillier’s use the term MTBI was  
intended to overstate the plaintiff’s condition, when a fairer, less dramatic term that  
would have been less charged, would have been “concussion”. As I will explain  
below, I am not persuaded that the plaintiff suffered even a concussion.  
[143] In cross-examination, Dr. Caillier agreed that if the plaintiff had sustained a  
concussion on the accident, it would have been a mild one.  
[144] Dr. Caillier described the plaintiff’s persistent symptomatic complaints in the  
form of psychological, cognitive, and physiological symptoms, cognitive dysfunction  
relating to her MTBI, chronic pain, post-traumatic headaches, lack of restorative  
sleep, mental health symptoms relating to depression and anxiety, fatigue, return to  
alcohol use, soft tissue injury to the neck, upper back, and shoulder girdles, chronic  
pain in the low back, wrist, and forearm, injury to the nasal region secondary to  
airbag deployment, right calcaneal fracture, and physical deconditioning.  
[145] Based upon the history provided to her, Dr. Caillier concluded that the plaintiff  
experienced time loss from work and inability to resume her full-time hours as a hair  
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stylist. She opined that was reasonable given the constellation of her physical,  
emotional, psychological, and cognitive symptoms since the collision.  
[146] It was Dr. Caillier’s opinion that the plaintiff has a decreased ability to  
participate in activities of her choosing whether recreational, vocational, or  
functional. She said that the plaintiff has difficulties with repetitive motions, at or  
above shoulder-level activities, overhead activities, weight-bearing activities,  
sustained posturing, heavier based activities including heavy lifting and carrying, as  
well as heavier pushing and pulling, repetitive bending, and awkward positioning  
through the head, back, neck, and shoulder girdle regions.  
[147] Notwithstanding the scope of her specialty, Dr. Caillier diagnosed that the  
plaintiff suffers from an ongoing cognitive dysfunction, which she said was likely  
multifactorial and secondary to ongoing issues with headaches, chronic pain,  
fatigue, reduced restorative sleep, mental health, and MTBI.  
[148] It is Dr. Caillier’s view that the plaintiff’s mental health can negatively impact  
her physical complaints, and the pain becomes magnified as there is intensification  
of pain response and altered perceived disability in association with the pain,  
rendering it higher than it should be. She opined that the plaintiff’s mental health can  
also have a negative impact upon her fatigue and ability to manage her pain,  
secondary to reduced interest and motivation.  
[149] Dr. Caillier confirmed that the treatment that she proposed was appropriate  
for a person to help manage their symptoms, and that chiropractic, physiotherapy,  
and kinesiology are important to combine with exercise for managing symptoms.  
However, even with the recommendations she made, the plaintiff will have a degree  
of difficulty with sustained, repetitive, or heavier based activities as a result of her  
ongoing physical symptoms. Her prognosis is that the likelihood of the plaintiff  
becoming completely symptom free is poor, and she expects that the plaintiff will  
have ongoing pain now and into the future.  
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[150] Dr. Caillier set out her opinion with respect to vocational, recreational, and  
functional abilities and limitations as follows:  
In my opinion, it is the constellation of pain, headaches, physical  
deconditioning, emotional and psychological symptoms, dizziness, cognitive  
dysfunction, fatigue and reduced restorative sleep that negatively impacts  
upon her ability to be engaged in her pre-motor vehicle collision (pre-August  
2, 2016) level of functioning.  
[151] Dr. Caillier noted that in December 2017, Coast Medical Clinic records  
indicated that the plaintiff had been sick for two weeks with dizziness as well as right  
ear soreness. She had spinning when lying flat. The assessment was that she had  
eustachian tube dysfunction.  
[152] Dr. Caillier noted that in October 2018 the Coast Medical Clinic notes by her  
family doctor indicated the plaintiff was working in film, was back to work full-time,  
and was happy. She had neck pain on and off, but it was tolerable. The notes also  
indicated the plaintiff travelled to Mexico for a one-month retreat.  
[153] Dr. Caillier did not include the plaintiff’s ongoing alcohol use after the accident  
as a cause of cognitive dysfunction or post-accident headaches. If those difficulties  
resulted from the accident, they would nonetheless entitle the plaintiff to  
compensation for their effects.  
Dr. Lu  
[154] Dr. Shaohua Lu is a psychiatrist with a specialty in addiction medicine. He  
provided a report dated July 21, 2021. When he assessed the plaintiff, she had  
already moved to Campbell River, was in a supportive relationship with Mr. Deveny,  
and had reduced her work further from her already reduced hours, as she was  
establishing herself in her new city.  
[155] In his report, Dr. Lu expressed the view that the plaintiff’s persistent anxiety  
following the accident caused her to develop post traumatic stress disorder (“PTSD”)  
and that she experiences avoidance behaviours, emotional distress, fluctuating  
depressed mood, emotional detachment, and isolation. He stated that the plaintiff  
 
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has the hyperarousal symptoms of PTSD, with persistent changes in her sleep  
pattern and increased vigilance of potential problems. It is Dr. Lu’s opinion that her  
PTSD is directly caused by the 2016 collision with her prior addiction as a major  
vulnerability.  
[156] Dr. Lu acknowledged the plaintiff’s history that her mother had been involved  
in a traumatizing motor vehicle accident, where she had lost her sister, the plaintiff’s  
aunt. The plaintiff recollected that after her father picked her up following the  
accident, he warned her and her sister that their mother had already started drinking  
upon news of the accident.  
[157] The plaintiff advised Dr. Lu that she is working on exposure therapy with her  
psychologist, Dr. Jung, to help her better control her flashbacks and negative  
memories with the goal that this would help stop her alcohol use.  
[158] Dr. Lu opined that the plaintiff has chronic moderate PTSD. He testified that  
he did not diagnose somatic symptom disorder as he felt that her presentation was  
more in keeping with PTSD and her symptoms and presentation were insufficiently  
severe to diagnose somatic symptom disorder.  
[159] Dr. Lu opined that the plaintiff also has chronic pain that has lasted for more  
than two years and rarely remits. He expressed the view that the plaintiff’s chronic  
pain negatively affects her general psychological function, overlapping with her  
psychological symptoms and PTSD, and that collectively these issues play a role in  
her depression and anxiety symptoms.  
[160] Dr. Lu said that, historically, the plaintiff likely met the criteria of alcohol use  
disorder with secondary anxiety and possible major depression, representing a  
serious psychiatric vulnerability that increased her risk of developing PTSD from the  
collision. It was his view that at the time of the accident, there was no clinical  
indication that she was at risk of a relapse of her alcohol use disorder, as she was  
stable and had sustained recovery and an ability to balance multiple work and  
personal demands.  
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[161] He commented that PTSD is a well-recognized major risk factor for alcohol  
use disorder. He opined that the accident and the PTSD caused by the collision  
were the major factors in her relapse in alcohol use.  
[162] Dr. Lu concluded that the plaintiff had a relapse of her alcohol use after the  
accident; and was drinking to calm her anxiety and help with her insomnia, resulting  
in a rapid escalation in her alcohol use. He noted that, at the time of his assessment,  
the plaintiff had been able to make efforts to reduce her alcohol use and that it was  
not a major contributing factor to her depression and anxiety. However, he was  
strongly of the view that she needed to stop drinking altogether.  
[163] Dr. Lu felt that the plaintiff now has marked changes in how she deals with life  
stressors and that she lost her usual healthy routine. She has experienced changes  
in her attention and concentration with heightened fears about COVID, in part due to  
her personal insecurity associated with her PTSD.  
[164] In his report, Dr. Lu opined that the plaintiff should continue with her current  
therapy until there is a remission of her PTSD. He set out that she is in a stable and  
supportive relationship. He opines that she may have further symptom reduction if  
she can maintain her improvement. However, he states that she is at a relative  
disability due to her chronic PTSD, alcohol use, and pain.  
[165] Dr. Lu expressed the view that the plaintiff’s long-term psychiatric risk is fair,  
but cautioned that she has chronic PTSD, chronic pain, and faces alcohol relapse  
risk. It is his view that that her chronic pain is unlikely to resolve. Regardless of the  
status of her PTSD, he expects the plaintiff to have some secondary psychological  
symptoms as long as she has pain. Dr. Lu expressed the view that the anticipated  
flexibility with her job will likely help to mitigate the functional impacts of her PTSD  
and chronic pain.  
[166] Dr. Lu referred to the plaintiff’s ability to make positive changes in her life in  
support of this. In terms of the interplay between alcohol use disorder and PTSD, he  
testified that, even with sustained recovery, the presence of major stressors can be  
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a trigger for relapse of alcohol use. For example, any disruption to her ability to cope  
with work or new stressors is a risk of deterioration to her mental health, including  
relapse. Dr. Lu referred to the risk of the plaintiff developing post-partum depression.  
Dr. Lu also agreed that the more often a relapse occurs, future relapse is more  
likely.  
[167] Dr. Lu explained that the plaintiff’s previous alcohol use increased her  
likelihood of post-partum depression by some percentage compared to the average  
woman. He also testified that in the absence of the accident, if she did get post-  
partum depression, it would have increased her risk of alcohol relapse.  
[168] Dr. Lu testified that, if the plaintiff stopped drinking alcohol, her PTSD would  
be better managed and she would have less anxiety and a good chance of regaining  
aspects of her mental control. However, he deferred to experts in physiatry  
regarding the impact of her pain on the physical aspects of her job.  
Dr. Winston  
[169] Dr. Paul Winston is also a specialist in physical medicine and rehabilitation.  
He described his current work as involving musculoskeletal conditions, migraine and  
other headaches, chronic pain patients, and brain injury patients, some of whom he  
has been involved with since inpatient care at the Intensive Care Unit (ICU) in  
Victoria. He said that all referrals for concussions in the Island Health region  
eventually come through his clinic. He said that neurologists and neurosurgeons will  
refer to him. He is actively involved in areas of physical medicine and rehabilitation  
on an international level.  
[170] Dr. Winston assessed the plaintiff and prepared a report dated June 9, 2021.  
He offered opinions on acquired neurological conditions, including brain injury,  
musculoskeletal conditions, myofascial pain, and chronic pain disorder; however, he  
properly conceded that he would defer to specialists in psychiatry with respect to  
psychiatric diagnoses.  
 
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[171] Dr. Winston gave evidence that the plaintiff arrived to see him with a long list  
of complaints. His physical examination of the plaintiff was essentially normal. He  
found that her back extension was more limited than he would have expected, given  
her yoga background, but it was otherwise unremarkable.  
[172] The plaintiff reported to Dr. Winston that she found it difficult to tolerate lights,  
noise, and certain smells, and she told him that a neurologist had advised her that  
these symptoms were related to a concussion.  
[173] Dr. Winston found nothing in the plaintiff’s clinical records to suggest that she  
had suffered any form of complicated concussion. There was no head injury or  
striking of her head and no loss of consciousness, and the plaintiff recalled the  
events before the accident very clearly. Dr. Winston was not able to identify any post  
traumatic amnesia, which, if present, could be the more significant issue in defining  
brain injury. He found that the plaintiff had no physical restrictions when engaging in  
domestic or leisure activities.  
[174] In his report, he explained:  
As a physician who treats concussion and lectures on concussion, there is  
very little to support the diagnosis of a concussion. Particularly a complicated  
concussion, one that would be expected to have long term sequela. [the  
plaintiff] did not strike her head and she has excellent recall of events. There  
are multiple guidelines out now looking at concussions and including a recent  
Quebec Expert Delphi panel that states patients should be expected to have  
consistent symptoms every day, with onset within hours of the accident,  
lasting up to 3 months. (1) In fact, not only are there few records pertaining to  
a concussion, but [Dr. Fisher’s] ICBC report did not report concussion. [the  
plaintiff] opened the interview with a long list of complaints. As her neurologist  
noted, these are non-specific. [The plaintiff] began to take on the various  
symptoms that are associate [sic] with many conditions including concussion.  
This is well summarized in the medical online text, often referred to as the  
medical bible, UpToDate in its post concussion syndrome (PCS) entry:  
Psychogenic factors A psychogenic contribution to PCS is  
suggested by a number of empiric and clinical observations.  
The symptom complex of PCS (headache, dizziness, and  
sleep impairment) is similar to the somatization seen in  
psychiatric disorders including depression, anxiety, and  
posttraumatic stress disorder. In addition, anxiety and  
depression can produce subjective and objective cognitive  
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deficits that are similar to those seen in PCS and that improve  
with antidepressant treatment.  
[175] Dr. Winston did note the fragment fracture of the plaintiff’s right ankle, that  
was managed conservatively. He diagnosed soft tissue injuries, as described by the  
plaintiff’s family doctor “with pain in the left knee, chest, neck, back, clavicular pain  
and tenderness in the paracervical trapezius muscles.” He found a relapse of the  
plaintiff’s pre-existing alcohol use disorder and that she suffered panic attacks and  
anxiety.  
[176] In his report, Dr. Winston noted that the symptom complex of post-  
concussion syndrome (headache, dizziness, and sleep impairment) are similar to the  
somatizations seen in psychiatric disorders including depression, anxiety, and  
PTSD, one of Dr. Lu’s diagnoses.  
[177] In cross-examination, Dr. Winston stated that a concussion diagnosis cannot  
occur based solely on symptoms. Therefore, the plaintiff’s complaints of concussion  
symptoms did not provide enough evidence to diagnose her with a concussion.  
Dr. Winston said that a mild concussion should not “show up”; however, if the  
plaintiff was knocked out, then she may be diagnosed with a concussion based on  
that symptom in the absence of other signs.  
[178] Dr. Winston said that the plaintiff advised him that her foot injury from the  
accident healed quite well, and other than occasional difficulties standing, it was no  
longer a problem. She further advised that she had been working with a therapist for  
her mood and energy and that she was in a good, happy place at the time of the  
assessment. He noted that the plaintiff indicated that her work with psychologists  
had significantly improved her psychological health.  
[179] Dr. Winston explored the plaintiff’s continuing complaints with her and had no  
particular explanation for her ongoing symptomology other than somatoform  
behaviour. He described her symptoms as non-specific, so could not point to a  
single diagnosis, but he was of the view it would be important to monitor concurrent  
mood disorder as a potential cause of some of her symptoms.  
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[180] Dr. Winston expressed the view that the plaintiff had anxiety due to her  
history of eating disorders and substance use disorder including cocaine before the  
accident as well as her periods of alcohol use. He noted that anxiety and depression  
can produce subjective and objective cognitive deficits that are similar to those seen  
in post-concussive syndrome and improve with anti-depressant treatment.  
[181] Dr. Winston opined that the main barrier for the plaintiff’s care is her high level  
of somatization and her anxiety, which needs to be better assessed by a mental  
health practitioner. He acknowledged the complex interplay of pain and  
psychological issues and their possible affect on the plaintiff, and expressed the  
view that the plaintiff needed to address “misattribution” of pain to the accident with  
her psychological caretakers.  
[182] Dr. Winston understood that the plaintiff gradually returned to work and that,  
due to her “largely normal physical examination”, did not see her as having any  
physical barriers for her working in a hair salon. He also did not see any physical  
restrictions from home, domestic, or leisure activities based on the plaintiff’s physical  
examination.  
[183] Overall, Dr. Winstons opinion is that the plaintiff’s vast overlying complaints  
are due to her pre-existing mental health history, anxiety, and return to alcohol use.  
Louise Craig  
[184] Ms. Louise Craig is a physiotherapist. She assessed the plaintiff on  
November 24, 2020 for a functional capacity evaluation and cost of future care  
assessment. She set out her opinions and recommendations in a report dated  
August 24, 2021.  
[185] I found that Ms. Craig came to court with an apparent agenda and was  
inclined to offer her views without listening carefully to the questions that she was  
asked or not answering many of them directly.  
 
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[186] Ms. Craig expressed her view that the plaintiff demonstrated the capacity to  
partially meet the physical demands of her pre-collision occupation of master  
hairstylist, but concluded that she was limited in this work by the sustained neck and  
upper back positions required, the requirement for constant reaching, and constant  
static body positioning.  
[187] Ms. Craig concluded that the plaintiff is no longer suited for full-time work as a  
hairstylist and recommended only very part-time work. She considered the plaintiff  
better suited to three to four-hour days, two to three days per week, with a break day  
after work days. She expressed the view that without substantial changes to her  
functional capacity, the plaintiff will not be able to return to work in more than a part-  
time capacity.  
[188] Ms. Craig also expressed the opinion that the plaintiff partially meets the  
physical demands of her post-collision occupation as a nanny. The plaintiff was  
mostly supervising older children after school, and Ms. Craig was of the view that the  
plaintiff is capable of such work. However, Ms. Craig felt that the plaintiff would not  
be able to look after babies or toddlers or perform tasks like cleaning a large home.  
[189] Ms. Craig gave evidence that the plaintiff’s limitations reduce her ability to  
work in sedentary, light, and more physically demanding jobs. She concluded that  
light to low-range medium physical strength demands on the plaintiff will require  
some accommodation, and therefore the scope of occupations available to the  
plaintiff is reduced.  
[190] Ms. Craig made her assessment by reviewing the plaintiff’s job tasks and  
comparing them against the National Occupation Classification (NOC)  
requirements. She had the plaintiff carry out a work simulation involving a  
mannequin whose hair could be styled. The plaintiff reported pain response in her  
shoulders, right wrist, upper back, and neck with this activity, and Ms. Craig  
observed her increased discomfort.  
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[191] Ms. Craig summarized her testing relating to the plaintiff’s abilities and  
concluded that she is limited for whole-body reaching tasks, particularly sustained  
reaching at upper levels. The plaintiff showed measurable functional decline and  
pain increase over the course of the evaluation. She is limited to prolonged periods  
of sitting and long periods of standing due to fatigue. She shows limitations for  
stooped posture, head-forward posture, and neck extension posture while reaching  
overhead. Ms. Craig testified that the plaintiff’s reaching ability, something the  
plaintiff would do as a stylist, reduced significantly over the course of the day of  
testing. Ms. Craig testified that testing also showed limitations with positional  
capacity in tasks requiring looking down.  
[192] The plaintiff’s self-assessment of abilities and limitations that she completed  
for Ms. Craig indicated that she had slight or no limitation for the 12 activities noted.  
The Legal Principles of Causation  
[193] The plaintiff must establish on a balance of probabilities that the defendant’s  
negligence caused or materially contributed to an injury. The defendant’s negligence  
need not be the sole cause of the injury so long as it is part of the cause beyond the  
range of de minimus. Causation need not be determined by scientific precision:  
Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 1317 [Athey]; Farrant v. Laktin,  
2011 BCCA 336 at para. 9.  
[194] The primary test for causation is the “but for” test, which requires the court to  
determine whether the plaintiff would have suffered the injury but for the defendant’s  
negligence. The but for test recognizes that compensation for negligent conduct  
should only be made where a substantial connection between the injury and the  
defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21–  
23.  
[195] In special circumstances, the but for test proves unworkable, and the law has  
applied a “material contribution” test. As Chief Justice McLachlin wrote in Clements  
v. Clements, 2012 SCC 32 at para. 46:  
 
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[46] Exceptionally, a plaintiff may succeed by showing that the  
Page 41  
defendant's conduct materially contributed to risk of the plaintiff's injury,  
where (a) the plaintiff has established that her loss would not have occurred  
"but for" the negligence of two or more tortfeasors, each possibly in fact  
responsible for the loss; and (b) the plaintiff, through no fault of her own, is  
unable to show that any one of the possible tortfeasors in fact was the  
necessary or "but for" cause of her injury, because each can point to one  
another as the possible "but for" cause of the injury, defeating a finding of  
causation on a balance of probabilities against anyone.  
[196] Causation must be established on a balance of probabilities before damages  
are assessed. As McLachlin, C.J.C. stated in Blackwater v. Plint, 2005 SCC 58 at  
para. 78:  
[78]  
Even though there may be several tortious and non-tortious causes  
of injury, so long as the defendant’s act is a cause of the plaintiff’s damage,  
the defendant is fully liable for that damage. The rules of damages then  
consider what the original position of the plaintiff would have been. The  
governing principle is that the defendant need not put the plaintiff in a better  
position than his original position and should not compensate the plaintiff for  
any damages he would have suffered anyway: Athey.  
[197] The most basic principle of tort law is that the plaintiff must be placed in the  
position they would have been if not for the defendant’s negligence, no better or  
worse. Tortfeasors must take their victims as they find them, even if the plaintiff’s  
injuries are more severe than they would be for a normal person (the thin skull rule).  
However, the defendant need not compensate the plaintiff for any debilitating effects  
of a pre-existing condition which the plaintiff would have experienced anyway (the  
crumbling skull rule): Athey at paras. 3235.  
Discussion on Causation  
[198] The plaintiff says that her evidence should be accepted as she readily  
acknowledged improvement in some of her symptoms, was forthright about her  
difficulties with alcohol, both before and after the collision, and acknowledged the  
gains she has made from a psychological perspective. She referred me to the  
decision of Justice Smith in Scoates v. Dermott, 2012 BCSC 485, where, at  
paras. 103104 and 175, Smith J. observed, in part, that:  
[103] On the medical evidence, it appears impossible to know with any  
degree of confidence if the plaintiff's cognitive and personality problems  
relate to brain injury, if they are the product of depression and chronic pain, or  
 
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if they stem from a combination of all these factors. In terms of the plaintiff's  
current condition, I find that it makes very little difference. The symptoms are  
very real and the chronic pain and depression, which clearly flow from the  
plaintiff's injuries, are sufficient to cause them with or without an organic brain  
injury.  
[104] The only possible difference is that the plaintiff's condition is  
theoretically treatable if no physical brain injury is involved. However, I am  
persuaded by the opinions of Dr. Schmidt and Dr. Ancill that significant  
improvement is unlikely in this case. The chronic pain is going to be  
permanent and I believe the plaintiff will continue to experience depression as  
a result of his pain and limitations and from the loss of his ambulance career,  
which had been a defining feature of his life.  
[175] Although I have found the plaintiff's cognitive, emotional and  
personality difficulties may result from the complex interaction of chronic pain  
and depression, rather than organic brain injury, the intractable nature of  
those problems makes the distinction largely irrelevant.  
[199] ICBC argues that the most significant disputes that arise on the evidence  
involve the plaintiff’s assertion that she suffered a concussion and ongoing  
neurological symptoms due to the accident. It contends that her ongoing  
psychological symptoms, her relapse into alcohol use, and the impact of these  
factors on her earning capacity did not arise from the accident.  
[200] The plaintiff and some of the lay witnesses gave evidence that due to the  
collision, she is not as socially or recreationally engaged as she once was. While  
some ongoing impact on the plaintiff’s social life resulting from her pain and anxiety  
may be expected, ICBC submitted that any impairment moving forward is not  
significant and may improve.  
[201] Dr. Lu’s opinion was that the period of pregnancy could be sufficient for the  
plaintiff to overcome her cravings for alcohol and to maintain sobriety. In the result,  
ICBC submitted that damages should reflect moderate soft tissue discomfort and  
ongoing anxiety issues that do not significantly limit the plaintiff in her work as a  
hairstylist or in her recreational or personal pursuits.  
[202] The plaintiff described her losses as a result of the accident: she has relapsed  
into the use of alcohol; her relationship with her sister is no longer the same; and  
she has pulled back from friends. The lay witnesses described her as having  
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changed as a result of the collision. She gave evidence that she reached a point  
where she had suicidal ideation. Her career plans have changed significantly. She  
fears experiencing postpartum depression after her daughter is born, she is at risk of  
another relapse, and she is worried about her ability to care for her daughter.  
[203] While she has recently had positive changes in her life, the plaintiff submits  
that the current reduction in intensity of her symptoms are largely related to her  
being off work while she is pregnant. She submits that her pain, headaches, ongoing  
PTSD, and cognitive symptoms will likely return when she resumes working.  
[204] ICBC submitted that on balance, the evidence supports that the accident  
resulted in a fracture of the plaintiff’s foot as well as anxiety, stress, and ongoing  
residual pain from soft tissue injuries. It argued that the plaintiff’s current condition is  
relatively stable and unlikely to deteriorate for any reasons associated with the  
accident. While she abused alcohol for over two years post-accident, she has been  
sober since August 2021, when she learned she was pregnant.  
[205] ICBC submitted that on balance, the evidence does not support a finding that  
the plaintiff suffered a concussion during the accident; therefore, the plaintiff should  
not be compensated for a concussion or any alleged ongoing neurological  
symptoms.  
[206] The plaintiff contends that she had sustained soft tissue injuries to her neck,  
shoulders, and back and experiences headaches, which were symptoms  
acknowledged by Dr. Winston. The plaintiff argues that despite being a pain  
specialist, Dr. Winston did not consider the impact of the plaintiff’s experience of  
pain or ascribe any meaning to her subjective experience of pain, instead he  
repeatedly referred to her symptoms as “vague” and “non-specific”.  
[207] Dr. Winston acknowledged that he did not delve into the reasons that the  
plaintiff has only worked part-time since the collision, and he believed it to be related  
to her starting her business in Campbell River.  
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[208] The plaintiff argues that Dr. Winston’s approach to providing his opinion is  
akin to that taken by another physiatrist, in Lynch v. McPhee, 2021 BCSC 433  
[Lynch], to which Justice Basran gave no weight where it differed with other medical  
experts. The basis for the rejection was the finding that the physiatrist had  
repudiated the opinion in his written report, offered no basis for his minimization of  
the plaintiff’s pain symptoms, and appeared to be advocating on behalf of the  
defendant: Lynch at para. 44. I am not persuaded that the same can be said of  
Dr. Winston’s views.  
[209] In Dosangh v. Xie, 2017 BCSC 1937, Justice G.P. Weatherill rejected the  
opinion of Dr. Winston on the basis that he was argumentative and avoided  
answering questions that should have had obvious answers, and he came across as  
an advocate for the defence.  
[210] I am not persuaded that such a view can be taken of the substance of  
Dr. Winston’s opinions in this case.  
[211] Regrettably, Dr. Winston failed to adhere to his duty to avoid advocacy by  
commenting on the “at fault” insurance system in British Columbia. He wrote:  
[The plaintiff]’s long list of somatic complaints, being unwell, believing she  
has a concussion, and seeking a brain injury lawyer are prime examples of  
what happens in patients with drawn out encounters with the environment  
created in British Columbia with the at fault insurance. It is known as the  
nocebo effect. (3) This results in misattribution of other symptoms to being a  
brain injury. Highlights of this key article by leading concussion expert,  
Zafonte, include:  
Nocebo effects refer to new or worsening symptoms that develop in  
response to negative health-related information, beliefs, and/or  
experiences. Growing evidence suggests that nocebos may  
exacerbate or prolong concussion-related symptoms via negative  
expectancy, diagnosis threat, misattribution, fostering of fear and  
anxiety, behavioral avoidance, and conditioning. Nocebo effects  
warrant careful consideration by clinicians working in the field.  
Converging evidence from both epidemiological and clinical trials  
suggest that negative expectations may adversely affect conclusion  
outcomes. For example, in a series of cross-cultural studies, it was  
noted that although Canada, Greece, and Lithuania report similar  
rates of head injury, Canadians generally expect concussion  
symptoms to last for months to years longer than Greeks or  
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Lithuanians, and corresponding[ly] experience a much higher rate of  
persistent post concussive symptoms. 105,106  
Misattribution is a common phenomenon, whereby ordinary aches  
and complaints of daily life that are easily overlooked become more  
prominent because of worry and anxiety. In certain settings after an  
injury has occurred, these symptoms and complaints can commonly  
be attributed to the injury. Misattribution is likely more frequent with  
clinical entities, such as concussion, where symptoms are  
nonspecific, diffuse, and exist at high base rates in the general  
population. Misattribution may also be more common when  
accompanied by concrete negative beliefs of expectations (“I have a  
brain injury”).  
Although most individuals sustaining a concussion are known to fully  
recovery [sic] within several weeks, a predominance of lay people  
expect symptoms to last months to years and believe that concussion  
symptoms can “never be cured”, symptoms reflect permanent brain  
damage, and symptoms may worsen over time.  
[212] These comments do not belong in the report of an objective expert witness.  
[213] I nonetheless prefer the evidence of Dr. Winston to that of Dr. Caillier with  
respect to the plaintiff’s alleged concussion, and I find that the plaintiff has failed to  
prove that she suffered any concussion in the accident.  
[214] I also find that the plaintiff has failed to establish that the accident caused her  
to experience a panic attack or cognitive impairment.  
[215] I do find that the accident caused a fracture to the plaintiff’s foot that resolved  
in less than six months, a relapse of her alcohol use, anxiety, depression, PTSD,  
and a loss of self-esteem and self-worth when she was unable to perform as a hair  
stylist as she had before the accident. I accept that following the accident, the  
plaintiff experienced dizziness, which has lately resolved, mild tinnitus, headaches,  
fear of loud sounds, and ongoing pain in her neck, shoulder, and lower back due to  
the accident, and that she continues to suffer, albeit to a lesser extent from those  
difficulties. Before her pregnancy, the plaintiff continued to experience difficulties  
with work, looking down, blow drying hair, washing hair, multitasking, as well as with  
her sensitivity to light, smell, and noise.  
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Damages  
Non-Pecuniary Damages  
[216] For assessing non-pecuniary damages, Justice Kirkpatrick set out an  
“inexhaustive list of common factors” to be considered in Stapley v. Hejslet, 2006  
BCCA 34 at para. 46, which includes the following:  
(a)  
(b)  
(c)  
(d)  
(e)  
(f)  
age of the plaintiff;  
nature of the injury;  
severity and duration of pain;  
disability;  
emotional suffering; and  
loss or impairment of life;  
impairment of family, marital and social relationships;  
impairment of physical and mental abilities;  
loss of lifestyle; and  
(g)  
(h)  
(i)  
(j)  
the plaintiff's stoicism (as a factor that should not, generally  
speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J.  
No. 163 (QL), 2005 BCCA 54).  
[217] The plaintiff claims she is entitled to an award of $180,000 in non-pecuniary  
damages. She referred me to the damage awards in Sebaa v. Ricci, 2015 BCSC  
1492 [Sebaa]; Redmile v. Beaulieu, 2019 BCSC 1571 [Redmile]; Fletcher v. Biu,  
2020 BCSC 1304 [Fletcher]; Wells v. Kolbe, 2020 BCSC 1530 [Wells]; and Gill v.  
Dhaliwal, 2021 BCSC 1562 [Gill].  
[218] In Sebaa, the plaintiff suffered from multiple soft tissue injuries, a chronic pain  
disorder, and PTSD following a motor vehicle collision in December 2010. Justice N.  
Brown concluded that it was unlikely that she would ever fully recover but found that  
there was a realistic possibility that her symptoms and functioning could improve.  
Ms. Sebaa's injuries had rendered her less capable overall of earning income from  
all types of employment, and she was less marketable as an employee to potential  
employers. She was awarded $180,000 for non-pecuniary damages.  
   
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[219] In Redmile, the plaintiff was 43 years old at the time of the collision in which  
he was injured. He sustained physical injuries, but his “most serious injury” was his  
PTSD: at para. 3. He found it difficult to leave the house following the collision and  
took three months off work. He eventually returned to work at a car dealership that  
was unsuccessful and turned it into a successful business. However, he found the  
work demanding and no longer fun. Justice D. MacDonald held that the plaintiff was  
mentally and physically strong and at the height of his career when the collision  
occurred. Justice MacDonald considered the plaintiff’s ongoing pain, both physical  
and psychological, his diminished enjoyment of work and his social life, and the  
significant effect the collision had on his relationship with his family, and she  
awarded him $180,000 for non-pecuniary damages.  
[220] In Fletcher, a 33-year old plaintiff suffered neck and back injuries, chronic  
pain, PTSD, depression, and anxiety. Her career was impacted by missing time from  
work. She was outgoing and athletic before the accident and sad, teary, fatigued,  
anxious, and easily frustrated after the accident. Justice Douglas awarded her  
$200,000 for non-pecuniary damages.  
[221] In Wells, the plaintiff was 42 years old at the time of a collision. The plaintiff  
had struggled with alcohol prior to the collision, became sober, then returned to  
alcohol after the collision. He was a business owner in the infancy of starting a new  
business and was working tirelessly to achieve that goal prior to the collision. He  
sustained daily neck and back pain, headaches, difficulties with sleep, lack of  
energy, PTSD, cognitive difficulties arising from a MTBI, and irritability. He could no  
longer work the hours he had worked prior to the collision. Justice Wilson awarded  
the plaintiff $170,000 for non-pecuniary damages.  
[222] In Gill, a 34-year-old plaintiff had neck and back pain, disc herniation, somatic  
symptom disorder, and major depressive disorder. He had been a fit and socially  
vibrant man prior to the collision. The plaintiff was limited at work as a lawyer, his  
social life was diminished, and he had worries about his future both personally and  
Leach v. Insurance Corporation of British Columbia  
Page 48  
professionally. He worried about caring for his children if he and his wife had a  
family. Justice Duncan awarded the plaintiff $180,000 in non-pecuniary damages.  
[223] ICBC submits that the assessment of the plaintiff’s non-pecuniary loss ought  
to be based on her ankle fracture, her moderate soft tissue injuries to the neck and  
back resulting in some ongoing pain, her increased anxiety and depression  
symptoms in the months following the accident, some minor impairment in engaging  
in social and recreational activities, and her ongoing PTSD.  
[224] ICBC contends that the plaintiff’s symptoms indicate that although the plaintiff  
suffered a relapse of alcohol use following the accident, her lingering symptoms are  
not nearly as severe as those experienced by the plaintiff in Risling v. Riches-  
Glazema, 2016 BCSC 2423 [Risling].  
[225] ICBC proposes that a non-pecuniary award in the range of $100,000 to  
$120,000 is a just and appropriate assessment of the plaintiff’s pain and suffering,  
based upon the awards in Achan v. Jin, 2020 BCSC 1430 [Achan]; Khan v.  
Bhangoo, 2020 BCSC 2053 [Khan]; Huang v. Li, 2020 BCSC 1096 [Huang]; and  
Risling.  
[226] In Achan, a 37-year-old female plaintiff suffered soft tissue injuries to her  
neck, back, and shoulder that resulted in significant ongoing pain and frequent  
headaches. Though these symptoms improved, they did not resolve. Her chronic  
pain symptoms limited her sleep and interfered with aspects of her functioning and  
enjoyment of life. She also suffered psychological symptoms including anxiety  
related to driving, adjustment disorder, and a generally low mood. Justice Fleming  
determined that the plaintiff’s injuries impaired her capacity to earn income in the  
future and limited her ability to engage in social and recreational activity. As a result,  
the plaintiff was awarded $90,000 for non-pecuniary damages.  
[227] In Khan, a 32-year-old plaintiff was involved in three accidents. In the first,  
she suffered a fractured right radius requiring surgery, headaches, and soft tissue  
injuries to her neck, shoulder area, and back. In the two subsequent accidents, she  
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Page 49  
aggravated these injuries. Her headaches became chronic, her soft tissue injuries  
resulted in ongoing pain, and she developed a frozen right shoulder. She also  
developed depression. Though she had been active and in good shape prior to the  
accident, she was described by doctors as significantly deconditioned. While the  
plaintiff was unemployed prior to the accident, there was a real and substantial  
likelihood that the plaintiff would have returned to the workplace but for the accident.  
Justice Norell awarded $90,000 for non-pecuniary damages, including a small  
reduction for failure to mitigate.  
[228] In Huang, the plaintiff was 31 at the time of the accident. She suffered soft  
tissue injuries to her neck, back, shoulders, right knee, and right hip. She also  
experienced headaches, dizziness, anxiety, and flashbacks of the collision that  
made it difficult to sleep. At trial she was still dealing with anxiety related to driving.  
Her pain worsened in the weeks following the collision, and at the time of trial she  
was living with considerable and pervasive chronic pain in her neck, back, and  
shoulders, which continued to impact her social life and ability to work. Justice  
Wilkinson awarded $90,000 for non-pecuniary damages.  
[229] In Risling, a 42-year-old plaintiff suffered soft tissue injuries to her shoulders,  
neck, and lower back, and experienced “fuzzy” vision in the aftermath of the  
accident. These issues led her to develop an alcohol use disorder that she began to  
resolve prior to trial. She also developed mood difficulties, chronic pain in both  
shoulders, and ongoing headaches. These difficulties affected her enjoyment of life,  
ability to engage in recreational activities, and ability to perform housekeeping tasks,  
and Justice Affleck found that they would also significantly limit her capacity to carry  
on her pre-accident work as a house painter. While he determined that her physical  
and psychological conditions might improve over time, Affleck J. concluded that her  
symptoms were likely to persist and make it difficult for her to continue working as a  
house painter. The plaintiff was awarded $150,000 for non-pecuniary damages.  
[230] I find the circumstances in this case are more similar to those in the cases  
cited by the plaintiff than the defendants. As I have found, the accident caused a  
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Page 50  
number of injuries to the plaintiff including a fractured foot, alcohol use relapse,  
anxiety, depression, PTSD, and a loss of self-worth and self-esteem. I also accept  
that the plaintiff has mild tinnitus, headaches, sensitivity to light, smell, and loud  
noise, and ongoing pain in her neck, shoulder and low back due to the accident. As  
a result, I assess the plaintiff’s non-pecuniary damages at $180,000.  
Loss of Past Income Earning Capacity  
[231] A plaintiff is only entitled to recover as damages the net amount of their past  
income loss as per s. 98 of the Insurance (Vehicle) Act.  
[232] The claim for past wage loss is more properly referred to as a past loss of  
capacity, the loss of which can be measured in many different ways. It is not actual  
strict income loss but “a claim for the loss of the value of the work that the injured  
plaintiff would have performed but was unable to perform because of the injury:  
Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30.  
[233] In Smith v. Knudsen, 2004 BCCA 613, the Court of Appeal confirmed that a  
plaintiff must prove on a balance of probabilities that an injury affected their past  
ability to earn income; however, once that is established, past hypothetical events—  
like future hypothetical eventsby necessity can only be proven on the basis of a  
real and substantial possibility and their likelihood of occurring: at paras. 2829.  
[234] The plaintiff seeks an award under this head of damages in the amount of  
$194,600.  
[235] ICBC suggests that appropriate compensation for past wage loss is estimated  
at $15,000. ICBC submits that this amount would compensate the plaintiff for the  
three weeks of work she missed prior to being told she could return to work by  
Dr. Kokan, including some subsequent indeterminate opportunity loss related to  
reduced shifts as a result of her injuries. ICBC submits that there is no accurate way  
to determine any exact past wage loss.  
 
Leach v. Insurance Corporation of British Columbia  
Page 51  
[236] The plaintiff had resumed chair renting again at Hair Love on April 1, 2016.  
She was building up her clientele there over the months until the accident.  
[237] The plaintiff gave evidence that on August 18, 2016, she was offered IATSE  
work as a first assistant stylist on a television program for 1618 hours per day for  
three to four months or more. She said she declined this opportunity as she was  
unable to work those kinds of hours.  
[238] When she was chair renting with Idaburn, the plaintiff earned $8,000 gross,  
per month. Her net business income was approximately 60% of her gross, meaning  
that she earned an income of $4,800 per month. The plaintiff says her earnings from  
chair renting would have returned to the level they were at when she was working at  
Idaburn and in line with the trajectory she was on in 2016 at the Hair Love salon  
prior to the collision. She submits that, by 2017, she would have been back to her  
pre-collision chair renting gross business income of $8,000 per month.  
[239] When the accident occurred, she immediately took three weeks off work and  
then returned to work on a reduced basis. She was then advised by her orthopedic  
surgeon, Dr. Kokan, that she could start placing weight on her ankle, ride an  
exercise bike, and go into the pool. Dr. Kokan also advised her that she could return  
to work as soon as she was ready.  
[240] On September 22, 2016, the plaintiff told Dr. Kokan that she was feeling  
much better and that she was working up to five hours per day. He told her that she  
could start going for gentle walks or runs, depending on how she felt, and he said  
that he did not believe physiotherapy was necessary.  
[241] The plaintiff contends, however, that her symptoms interfered, and continue  
to interfere with her work. She said that she experiences a flare in neck and shoulder  
pain when looking down, her arm pain flares with washes and massages, her low  
back and heel pain flares with being on her feet all day, and she struggles with  
multitasking, focusing, and interacting with her clients in a stimulating environment.  
She asserts that she is sensitive to light, smell, and sound. She found this difficult to  
Leach v. Insurance Corporation of British Columbia  
Page 52  
manage when working in a busy salon and said that she was making errors. She  
has had to cancel clients when she had migraines.  
[242] She gave evidence that she lost 3040 of her 90 clients following the  
collision, as she had to reduce her hours, and she struggled to maintain the level of  
service she had provided prior to the collision. She found working in a salon  
overwhelming, and she reduced her days in the salon to four days per week, then  
three days per week, then two days per week.  
[243] She stopped doing IATSE work in 2016 and 2017. In 2018, she was working  
about two days per week in the salon and was feeling improvement of her  
symptoms. In November 2018 the plaintiff reported that with the assistance of a life  
coach she was able to return to full-time work. She decided to take on some film  
work at a reduced rate compared with her pre-collision plans. She did two projects  
on a part-time basis. She sometimes worked long hours but found that she could  
take a lot of breaks. She had the support of her team in taking time when she  
needed it, and she could focus on one job at a time without the distractions of  
working in a salon.  
[244] In March 2020, after the onset of the COVID-19 pandemic, hair salons were  
closed for over two months. The plaintiff stopped her limited film work and took up a  
nannying job. Over time, she reduced her hours at the salon from four days per  
week to three days per week to two days per week. She described the decreased  
intensity of her symptoms since she became pregnant.  
[245] I find there is a possibility that the plaintiff would have been unable to attend  
to her usual clients by working in the film industry. However, as this never  
materialized, it is difficult to say what effect, if any, this would have had on her client  
retention. I infer that if she would have been unavailable to her clients for period of  
three to four months or longer, she would have lost a similar number of clients, or  
more, compared to the number of clients she lost after the accident.  
Leach v. Insurance Corporation of British Columbia  
Page 53  
[246] While the plaintiff is not currently working due to her pregnancy, ICBC  
submitted that her post-accident work history indicates that she is capable of  
working full-time as a hairstylist with ergonomic modifications. It argued that none of  
the symptoms the plaintiff has linked to the accident support a finding that she is  
significantly limited in her ability to work. Thus, while recognizing that the accident  
caused the plaintiff to temporarily put her hairstyling business on hold, ICBC  
contended that the plaintiff has not yet reached a medical plateau. She is not  
drinking alcohol due to her pregnancy and is continuing to undergo exposure  
therapy to control her use of alcohol. She also continues to attend Dr. Jung, the  
psychologist.  
[247] The plaintiff sometimes worked in excess of 12 hour days, and her pre- and  
post-accident income records indicate gross earnings as follows:  
a) 2012  
b) 2013  
c) 2014  
d) 2015  
e) 2016  
f) 2017  
g) 2018  
h) 2019  
i) 2020  
$78,396  
$47,817  
$6,718  
$34,712  
$40,175  
$41,106  
$46,535  
$39,566  
$40,352  
[248] The plaintiff asserts that her income loss for 2016 accounts for the three  
weeks off work following the collision, the lost opportunity to take on the Riverdale  
contract, and her reduction in hours through the rest of the years. The plaintiff  
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Page 54  
acknowledged that she would have worked a reduced amount chair renting while  
working full-time on Riverdale.  
[249] She gave evidence that IATSE work paid $33 per hour for eight hours and  
time and a half for hours above eight hours. She testified that the Riverdale job  
would have been five to six days per week for 12 to 14 hours per day. Assuming this  
would have been a three-month opportunity, the plaintiff would have earned 5.5 days  
per week x 12 weeks x ($33 x 8 + $49.50 x 5) = $34,000.  
[250] The plaintiff adduced no independent evidence as to the income she could  
expect from IATSE work.  
[251] The plaintiff claims that in 2016, she would have earned $3,600 in net  
business income in the three weeks she was off immediately following the collision,  
$34,000 for the Riverdale contract, and $4,800 for the remainder of the year. She  
submits that the loss of ongoing work with IATSE is a loss of $34,000 per year.  
[252] In 2017 through 2019, the plaintiff contends that she would have continued  
earning $43,200 in net business income for chair renting and $34,000 for IATSE  
work, which amounts to an annual income of $77,200.  
[253] The plaintiff also contends that in 2020, she would have earned $4,800 per  
month or $14,400 through to March 2020 but for the collision. She concedes that  
thereafter the salon would have closed and film work would have stopped in any  
event. While her PTSD plays a role in her sense of safety relating to the COVID  
pandemic, the plaintiff acknowledged that she would more likely have returned to  
chair renting over film work as a result of the pandemic. She would thus have earned  
a reduced rate in 2020 notwithstanding her injuries from the collision due to the  
social distancing requirements. She estimates her net business income for June  
through December 2020 at $3,000 per month but for her injuries, or $21,000, for an  
annualized net business income of $35,400.  
[254] The plaintiff contended that in 2021, her earnings would have been back in  
line with her pre-COVID chair rental net business income of $4,800 per month until  
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Page 55  
she became pregnant in August 2021 (seven months), totaling $33,600. She is not  
making a claim for a loss during the period of her pregnancy.  
[255] On that basis, she maintains that she has lost income of $42,600 in 2016,  
$50,400 in 2017, $54,400 in 2018, $55,400 in 2019, $21,800 in 2020, and $24,600  
to date of trial in 2021, for a total of $194,600.  
[256] ICBC submits that the evidence does not support more than a modest claim  
for past income loss, arguing that the plaintiff’s work history since the accident, while  
varied, supports a finding that she remains capable of working full-time. ICBC  
contests the unrealistic career trajectory proposed by the plaintiff had the accident  
not occurred.  
[257] The high-water mark for income for the plaintiff was clearly in 2012. She has  
not approached her earnings from that year since. Her income projections assume a  
greater attachment to the work force than her work history shows.  
[258] I am not persuaded that the plaintiff would or could have sustained the pace  
that her claim for past loss of income earning capacity assumes. Her expectation  
that her clients would have remained loyal to her in the event she left them for  
months at a time is unrealistic, as is ICBC’s position that her claim for past loss of  
income earning capacity is modest.  
[259] I assess her claim for past loss of income earning capacity at two thirds of the  
amount she claims, which I round up to $130,000.  
Loss of Future Income Earning Capacity  
[260] The plaintiff submitted there is no medical evidence to suggest that she would  
have missed time from work in the past or the future but for the accident. She  
recognized that a capacity loss is not a strict calculation and that the Court must  
consider the overall fairness and reasonableness of the award. Applying the actual  
multiplier from Mr. Benning’s report of $21,195 per $1,000 to age 65, the plaintiff  
claims a loss of future earning capacity of $600,000.  
 
Leach v. Insurance Corporation of British Columbia  
Page 56  
[261] ICBC argues that based on the evidence the plaintiff has not shown an  
entitlement to a loss of future earning capacity on a balance of probabilities. It  
submits that the plaintiff has demonstrated an apparent ability to consistently work  
full-time or close to full-time, and that the improvement of her condition since the  
accident indicates that she should not face significant limitations in the future, and  
submits that the plaintiff’s submissions overstate her inability to work and engage in  
an unrealistic appraisal of the prospects of her hairstyling business had the accident  
not occurred.  
[262] Dr. Caillier expressed the view that the plaintiff’s ability to return to full-time  
work as a hair stylist is poor due not only to her physical complaints, but also due to  
her emotional, psychological and cognitive complaints. She concluded that the  
plaintiff would likely benefit from continuing to work within a part-time capacity or  
working a modified work week, with the goal being to determine the number of hours  
that she is capable of working while being able to manage her symptoms. She  
opined that the plaintiff should continue to take breaks during her workday, have an  
ergonomic work setup, and not double book clients to allow for long term  
management of her symptoms. She said that the plaintiff may benefit from working  
three to four days per week, with days off between shifts, and recommended that  
she work six to eight hour shifts.  
[263] In three recent decisions authored by Justice Grauer, unanimous divisions of  
the Court of Appeal revisited the approach that a trial judge should take in assessing  
damages for loss of future income earning capacity. The decisions are indexed as  
Dornan v. Silva, 2021 BCCA 228 [Dornan], Rab v. Prescott, 2021 BCCA 345 [Rab],  
and Lo v. Vos, 2021 BCCA 421 [Lo]. The decisions in each case are unanimous.  
[264] In Dornan, at para. 156, Justice Grauer cited Gregory v. Insurance  
Corporation of British Columbia, 2011 BCCA 144 [Gregory] at para. 32, where the  
Court described a claim for loss of future earning capacity in these terms:  
[32] … An award for future loss of earning capacity thus represents  
compensation for a pecuniary loss. It is true that the award is an assessment,  
not a mathematical calculation. Nevertheless, the award involves a  
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Page 57  
comparison between the likely future of the plaintiff if the accident had not  
happened and the plaintiff's likely future after the accident has happened:  
Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995]  
B.C.J. No. 644 (C.A.) at para. 8.  
[265] An award for future loss of earning capacity is compensation for a pecuniary  
loss and involves consideration of hypothetical events. The plaintiff must prove a  
“real and substantial possibility” with respect to hypothetical events. The standard of  
“real and substantial possibility” is a lower threshold than a balance of probabilities  
but higher than mere speculation: Dornan at para 94; Gao v. Dietrich, 2018 BCCA  
372 at para. 34. Once the plaintiff establishes a real and substantial possibility of a  
future hypothetical event, the court must determine the measure of damages by  
assessing the likelihood of the event: Grewal v. Naumann, 2017 BCCA 158 at  
para. 48.  
[266] At paras. 2931 in Rab, Grauer J.A., described the different types of future  
loss claims that might arise and the different considerations that these attract:  
[29]  
Some claims for loss of future earning capacity are less challenging  
than others. In cases where, for instance, the evidence establishes that the  
accident caused significant and lasting injury that left the plaintiff unable to  
work at the time of the trial and for the foreseeable future, the existence of a  
real and substantial possibility of an event giving rise to future loss may be  
obvious and the assessment of its relative likelihood superfluous. Yet it may  
still be necessary to assess the possibility and likelihood of future  
hypothetical events occurring that may affect the quantification of the loss,  
such as potential positive or negative contingencies. Dornan was such a  
case.  
[30]  
But in other cases, assessing the possibility of a future income loss is  
less straightforward. Among these are cases involving plaintiffs whose  
injuries have led to continuing deficits, or have exposed them to future  
problems, yet whose income at the time of the trial is at or near the level of  
earnings they enjoyed before the accident. These tend to be cases that lend  
themselves to the capital asset approach to quantifying the loss. Grewal was  
such a case, as were Pallos, Brown and Perren. This one is also such a  
case. The respondent advanced no claim for past loss of income, and her  
income at the time of trial, all of which was passive, was greater than it had  
been at the time of the accident.  
[31]  
Accordingly, the process described in Grewal comes to the forefront:  
assessing whether there is a real and substantial possibility of an event  
leading to future loss, and assessing its likelihood, before turning to  
quantification on either an earnings or capital asset approach.  
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Page 58  
[267] Grauer J.A. set out a three-step process for assessing such claims in Rab at  
para. 47:  
1. Determine whether the evidence discloses a potential future event that could  
lead to a loss of capacity;  
2. Determine whether, on the evidence, there is a real and substantial possibility  
that the future event in question will cause a pecuniary loss; and  
3. If a real and substantial possibility exists, assess the value of that possible  
future loss, which includes assessing the relative likelihood of the possibility  
occurring.  
[268] The first step requires an assessment as to whether there any potential future  
events that can lead to a further loss of capacity, in addition to that already lost as a  
result of the accident. I am satisfied that the plaintiff’s future income earning capacity  
has been, and will continue to be, impaired by the accident.  
[269] At the second step, the plaintiff bears the burden of proving a real and  
substantial possibility of a pecuniary loss. This expression is the one used to refer to  
threshold likelihood: the standard of proof for admitting hypothetical events, both  
past and future, into the evidentiary record as if they already happened. It is a lower  
threshold than a balance of probabilities but a higher threshold than something only  
possible and speculative.  
[270] The third step is the relative likelihood of the pecuniary loss as a result of  
applying either the so-called “earnings approach” or the so-called “capital asset”  
approach.  
[271] Under the earnings approach, the Court determines the plaintiff’s without-  
accident future earning capacity, often based upon actuarial and economic  
evidence, as well as the plaintiff's past earnings history. The Court then assesses  
the difference between the without-accident earning capacity and the with-accident  
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Page 59  
earning capacity. That amount may be further adjusted based on applicable  
contingencies.  
[272] If a plaintiff continues to earn income at or close to their pre-accident level,  
but has suffered an impairment that may affect the plaintiff’s ability to continue doing  
so at some point in the future, or if there is a shortage of evidence of what the  
plaintiff's post-accident future earning capacity may be, then the Court may use an  
amount based on the plaintiff's pre-accident annual income over one or two years to  
calculate the without-accident future earning capacity.  
[273] The plaintiff is now living in Campbell River, and her expressed intention, after  
having her daughter in May 2022 and taking a year off with her, is to set up a home-  
based salon and manager her hours within her limitations. She has taken some  
steps in Campbell River to network and has reached out to a salon there to build up  
her clientele, but she has put those plans on hold while she is pregnant. She did  
concede that once she has a child, she will no longer have the ability to travel back  
and forth to Vancouver.  
[274] In cross-examination, the plaintiff said that she had looked into pricing in  
Campbell River and that her prices are comparable to prices charged by stylists  
there. She also testified to the costs she will save by having home-based salon as  
opposed to paying a chair rental fee. She adduced no expert evidence to support  
her evidence on this issue.  
[275] I have difficulty with the plaintiff’s evidence in this regard. I do not accept that  
a hair stylist working in the relatively small area in and around Campbell River can  
expect the volume of clients or the prices that can be sustained for similar work in  
the Lower Mainland of British Columbia.  
[276] Despite her enthusiasm to return to hairstyling, I am not persuaded that the  
plaintiff has a workable plan to do so. First, there is the reality that her husband will  
be away from their home for three out of four weeks, leaving the childcare  
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Page 60  
responsibilities entirely to her during that time. If she works from her home, or  
elsewhere, she will have to arrange for childcare.  
[277] Second, I am not persuaded that working from home will assist the plaintiff in  
commanding the clientele and the fees that she was able to charge in the salons  
where she worked in the Lower Mainland of Vancouver.  
[278] ICBC contends that if the plaintiff builds her own hair salon in her home, the  
salon can be ergonomically designed with the help of an occupational therapist so  
that it minimizes neck flexion and sustained shoulder flexion. It argues that as she  
will be starting a new business and, seeking new clients, she will build her business  
at her own pace and set her own hours.  
[279] I have set out the plaintiff’s pre- and post-accident income above, and  
commented on the profitability and the nature of her intended future economic  
activities. There is no evidence of any pre-existing limitations on her work capacity  
prior to the accident, other than the risk of her return to alcohol use.  
[280] The plaintiff said that she was working more than 40 hours per week prior to  
the collision, and intended to continue working more than 40 hours per week. The  
film industry is demanding, and the hours are much longer.  
[281] The plaintiff contends that her earnings are now going to be reduced based  
on the number of hours that are manageable for her. Dr. Caillier and Ms. Craig  
recommended that she work between 20 and 32 hours per week, which is consistent  
with what the plaintiff has found to be manageable. Assuming she works 25 hours  
per week, this is a 37.5% reduction from a 40-hour work week earning capacity. This  
is $48,250 (62.5% of $77,200) annually in residual earning capacity, and a loss of  
$28,950 per year.  
[282] The plaintiff asserted that her future capacity loss should be determined by  
the reduction in her hours to 25 hours per week, as well as the loss of growing her  
business and pursuing further film industry work. She submitted that her capacity  
pre-collision was earnings of net business income of $4,800 per month for nine  
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months and $34,000 for the remaining three months of IATSE work for an annual  
total of $77,200. She submitted that her claim is a conservative assessment of her  
pre-collision capacity.  
[283] I do not accept that the plaintiff had any real or substantial likelihood of  
working at IATSE work once she relocated to Campbell River and started her family.  
I find that her claim for loss of future income earning capacity must be based upon  
an annual income from salon work.  
[284] Given the lack of any real basis upon which I could determine the income that  
the plaintiff could or can expect to earn in Campbell River, I find that her potential  
income from hairstyling in Campbell River is 75% of the $57,600 hairstyling income  
that she was accustomed to earning in the Lower Mainland, which amounts to  
$43,200.  
[285] Accepting that the plaintiff will now be unable to work a 40-hour week, and  
can only expect to work 25 hours per week, her loss of future income earning  
capacity is $16,200, and, at the actual multiplier from Mr. Benning’s report of  
$21,195 per $1,000 to age 65, amounts to $343,359, which I will round up to  
$350,000.  
[286] As always, the assessment of a claim for loss of future income earning  
capacity must include a consideration of the fairness and reasonableness of that  
award. This requires a consideration of both positive and negative contingencies,  
which may serve to increase or decrease the award. The basis upon which  
contingencies can serve to increase or decrease an award for future loss of earnings  
was discussed in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 253.  
[287] In Athey at para. 27, Justice Major commented:  
[27]  
Hypothetical events (such as how the plaintiff's life would have  
proceeded without the tortious injury) or future events need not be proven on  
a balance of probabilities. Instead, they are simply given weight according to  
their relative likelihood: Mallett v. McMonagle, [1970] A.C. 166 (H.L.), Malec  
v. J.C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.), Janiak v.  
Ippolito, [1985] 1 S.C.R. 146. For example, if there is a 30 per cent chance  
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Page 62  
that the plaintiff's injuries will worsen, then the damage award may be  
increased by 30 per cent of the anticipated extra damages to reflect that risk.  
A future or hypothetical possibility will be taken into consideration as long as  
it is a real and substantial possibility and not mere speculation: Schrump v.  
Koot (1977), 18 O.R. (2d) 337 (C.A.), Graham v. Rourke (1990), 74 D.L.R.  
(4th) 1 (Ont. C.A.).  
[288] The plaintiff contends that the positive contingencies serving to lead to  
greater losses specific to her are her commitment to and passion for her work, her  
love of her job, the fact that she is actively managing her schedule so she can work  
reduced hours to manage her pain, the evidence of Dr. Lu regarding the risk of  
postpartum depression and relapse after she has her baby, her good pre-collision  
physical fitness, and the risk that she will retire from work earlier than planned due to  
her injuries.  
[289] In this case there is the negative possibility that the plaintiff will return to using  
alcohol, impairing her future income earning capacity. I do not see this as a  
significantly greater risk than such a return for a variety of factors unrelated to the  
accident, but it is nonetheless a negative contingency that must be considered.  
[290] I find that other than those I have already addressed, there are no additional  
real or substantial contingencies that require either an increase or a decrease in my  
assessment of the plaintiff’s claim for loss of future income earning capacity.  
Future Cost of Care  
[291] The plaintiff is entitled to compensation for the cost of future care based on  
what is reasonably necessary to restore her to her pre-accident condition in so far as  
that is possible. When full restoration cannot be achieved, the court must strive to  
assure full compensation through the provision of adequate future care. The award  
is to be based on what is reasonably necessary on the medical evidence to preserve  
and promote the plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49  
B.C.L.R. (2d) 33 (S.C.) [Milina]; Williams v. Low, 2000 BCSC 345; Spehar v.  
Beazley, 2002 BCSC 1104; Gignac v. Rozylo, 2012 BCCA 351 at paras. 2930.  
 
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[292] The test for determining an award for the cost of future care is an objective  
one that requires the claims to be reasonable and justified by medical evidence:  
Milina at 84.  
[293] Future care costs are “justified” if they are both medically necessary and likely  
to be incurred by the plaintiff. The award of damages is thus a matter of prediction  
as to what will happen in future. If a plaintiff has not used a particular item or service  
in the past it may be inappropriate to include its cost in a future care award.  
However, if the evidence shows that previously rejected services will not be rejected  
in the future, the plaintiff can recover for such services: Izony v. Weidlich, 2006  
BCSC 1315 at para. 74; O’Connell v. Yung, 2012 BCCA 57 at paras. 55, 60, 6870.  
[294] The assessing medical evidence for a cost of future care award must be  
considered in light of the decision of the Court of Appeal in Gregory at paras. 3839,  
where Justice Garson held:  
[38]  
Courts do accept testimony from a variety of health care professionals  
as to necessary and reasonable costs of future care: Jacobson v. Nike  
Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.) at  
para. 182; in which Levine J. (as she then was) said:  
[182] The test she enunciated does not, in my view, require  
that the evidence of the specific care that is required by the  
plaintiff be provided by a medical doctor. In Milina v. Bartsch,  
McLachlin J. accepted the evidence of a rehabilitation expert  
as to the type of care that should be provided.  
See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53, 63; Rizzolo  
v. Brett, 2010 BCCA 398 at paras. 72-83.  
[39]  
I do not consider it necessary, in order for a plaintiff to successfully  
advance a future cost of care claim, that a physician testify to the medical  
necessity of each and every item of care that is claimed. But there must be  
some evidentiary link drawn between the physician's assessment of pain,  
disability, and recommended treatment and the care recommended by a  
qualified health care professional: Aberdeen at paras. 43, 63.  
[295] The plaintiff must be placed in the position she would have enjoyed had the  
accident not occurred; Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at  
para. 9 [Krangle]. An assessment of damages for cost of future care is not a precise  
accounting exercise: Krangle at para. 21.