Leach v Insurance Corporation of British Columbia

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

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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.

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[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 12–14 hours per

day and is paid at a rate of $33/hour for the first eight hours, and time and a half

thereafter.

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[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 40–50% 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.

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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.

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[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.

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[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

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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.

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[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 “‘fire’ reported 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 30–40 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.

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[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.

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[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

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(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.

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[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.

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[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. Sdoutz’s 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.

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[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

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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

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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 fact’ equally 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.

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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

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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

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plaintiff was unable to say if she was travelling between 40–50 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

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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 74–75:

[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:

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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.

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[112] Chelsea Leach believed that the speed limit on Highway 101 was 50 km/h.

She gave evidence that the plaintiff was going 30–40 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.

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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

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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.

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[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

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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 45–60 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.

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[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. Winston’s 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. 13–17 [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. 32–35.

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. 103–104 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

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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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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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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 events—by necessity can only be proven on the basis of a

real and substantial possibility and their likelihood of occurring: at paras. 28–29.

[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.

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[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 16–18 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

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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 30–40 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.

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[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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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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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.

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[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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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. 29–31 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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[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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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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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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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. 29–30.

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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, 68–70.

[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. 38–39,

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.

Leach v. Insurance Corporation of British Columbia

Page 64

[296] Ms. Craig provided her assessment of the costs associated with the

recommendations made by Dr. Caillier and Dr. Lu, as well as her own

recommendations, based upon her view that the plaintiff is likely at, or close to, her

maximum physical rehabilitation. While further treatment may assist in the

management of the plaintiff’s symptoms, Ms. Craig based her assessment on the

basis that such treatment is unlikely to substantially improve her functional abilities.

Nonetheless, she recommended further treatment to increase comfort during activity

and to help cope with flare-ups, despite her view that her recommendations will not

likely lead to resolution of the plaintiff’s symptoms or full restoration of physical

conditioning and functional capacity.

[297] Ms. Craig’s recommendations for the plaintiff’s future care costs are:

Product or

Service

Group

One Time

Cost –

Lower

One Time

Cost –

Upper

Ongoing

Costs –

Lower

Ongoing

Costs –

Upper

Frequency/

Replacement

Age of

Commencement

Range

(cost

Range

(cost

range/yr)

Occupational

Therapy

$1,344.00

6 sessions

37

Physiotherapy

$1,728.00

$2,292.00

18-24

sessions/year

Addiction

Counselling

$7,500.00

Once

Unknown

37

Psychological

counselling

$14,040.00 $14,040.00

12 sessions x

6

Dietician

$1,015.00

$1,903.00

$1,015.00

$2,367.00

12 sessions

37

Kinesiology

32 to 40

sessions

Botox

$1,716.00

$550.00

$6,000.00

$550.00

Yearly

Twice

37

Ergonomic

assessment

$420.00

Compounded

topical

Yearly

37

Riboflavin

$55.79

$71.96

$63.76

$71.96

Yearly

37

Magnesium

Coenzyme

Q10

$284.94

Leach v. Insurance Corporation of British Columbia

Page 65

Imitrex (or

Cambia) -

$1,632.00

Yearly

37

Gravol

$11.99

$91.25

$11.99

$91.25

Yearly

Daily

37

Trazadone

Vortioxetine

Tylenol

$1,189.90

$11.99

$1,189.90

$11.99

Occasional

use

Ear buds

Orthotics

Moving

$349.00

Once

2 years

3 times

Once

37

$618.00

$2,502.00

$49.99

$5,004.00

$49.99

Antifatigue

mat

Light-weight

vacuum

$279.00

Once

Once/month

Twice/year

37

Regular

cleaning

$1,560.00

$600.00

$750.00

$415.15

$1,560.00

$600.00

Seasonal

cleaning

Handyman

service

$750.00 10 hours/year

$415.15 Annually

Gym

membership

Totals

$29,401.99 $32,367.99

$11,286.97 $16,142.94

[298] The cost of Ms. Craig’s recommendations was set out by Mr. Benning in his

report as follows:

Item

Cost including

GST/PST

Frequency

Multiplier

Value

Present

Value

A. Future Medical Care – Surgical Intervention/ Aggressive Treatment

Botox Injection

Treatment

50% of $4,458

($2,229)

Annual

29,976

$66,817

B. Projected Evaluations

Occupational Therapy

$1,344

$210

Year 1 only

990

$1,330

$376

 Assessment and

Treatment

 Ergonomic

Assessment

Year 1 and 11

1,792

Leach v. Insurance Corporation of British Columbia

Page 66

C. Projected Therapeutic Modalities

Physiotherapy or similar

$2,010

$1,015

Annual to age

21,564

$43,344

67

Dietician

Year 1 only

990

$1,005

Psychological

counselling

$8,100

$2,700

Year 1 through

3

2,909

4,157

$23,563

$11,224

 Initial

 Ongoing (6

Every 7 yrs

Year 2 only

occasions)

Addiction counselling

$7,500

970

$7,275

Supervised exercise

sessions

$1,389

$426

Year 1 only

990

$1,375

$818

 Year 1 (20 to 24

sessions)

Years 2 and 3

1,919

 Years 2 & 3 (6 to 8

sessions/yr)

D. Medications & Supplements

Compounded topical

cream

$550

Annual

29,976

$16,487

Tylenol or Advil

$13

$63

$76

Annual

29,976

$377

Riboflavin 200 mg

$1,881

$2,265

Magnesium citrate 600

mg

Coenzyme Q10

$299

50% of $1,632

($816)

Annual

29,976

$8,969

Imitrex/Cambia –

Contingency (50%)

$24,460

Gravol

$13

Annual

29,976

1,000

$377

$391

E. Equipment

Custom ear plugs

F. Household Assistance

$391

One-time

Leach v. Insurance Corporation of British Columbia

Page 67

$35,322

Regular household

cleaning

$1,638

$630

Annual to age

21,564

67

Heavier seasonal

cleaning

Annual to age

$13,585

67

Light weight vacuum

Anti-fatigue mat

Grand Total

$314

$56

One time

1,000

$314

$56

$261,611

[299] Based upon these recommendations, and their cost as assessed by

Mr. Benning, the plaintiff seeks an award under this head of damages in the amount

of $261,611.

[300] ICBC submits that the vast majority of Ms. Craig’s recommendations can be

rejected based on the evidence that they are not medically justified or reasonable or

will not likely be used, including: Botox, physiotherapy, dietician, medications and

supplements, orthotics, moving, gym membership, and cleaning and maintenance

services. However, ICBC concedes that occupational therapy, psychological

counselling, supervised exercise sessions, and addiction counselling, in the

approximate total of $15,000, may be appropriate cost of future care items.

[301] Dr. Caillier also recommended occupational therapy intervention to assist the

plaintiff with compensatory strategies and techniques for cognitive impairments and

deficits. As I have found that the plaintiff did not suffer any cognitive impairment due

to the accident, I will not allow this part of her claim for her cost of future care.

[302] Another one of Dr. Caillier’s recommendations was for an ergonomic review

of the plaintiff’s work scenario by an occupational therapist. As the plaintiff has not

worked since July 2021 and does not intend to work until mid-2023, when she will

consider building a hair studio in her home, I am not persuaded that the cost of this

service is justified, and I decline to order it.

[303] Dr. Caillier also recommended treatment with a physiotherapist at least once

or twice on a monthly basis to assist with the management of her pain and

Leach v. Insurance Corporation of British Columbia

Page 68

headaches so that she can continue working, engage in activities to manage her

pain, as well as engage in activities with family and friends. Dr. Caillier

recommended 18 to 24 sessions on an annual basis for physiotherapy or similar

treatments, 14 to 16 sessions with a kinesiologist or personal trainer, and then six to

eight sessions per year for the next three years. This number of treatments is less

than the frequency with which the plaintiff currently accesses these treatments.

[304] While I accept that the plaintiff will need physiotherapy assistance with the

management of her pain and headaches, I find the frequency proposed by Ms. Craig

to be excessive, and potentially unnecessary, if Botox injections are successful. I will

allow her one half the cost of this treatment as determined by Ms. Craig and costed

out by Mr. Benning.

[305] Dr. Caillier recommends that the plaintiff continue to work with a psychologist

for strategies to assist with increased stressors, coming to terms with the losses that

she perceives, and her inability to regain her level of function.

[306] Dr. Winston’s recommendations for treatment included only massage,

meditation, and medication (or holistic uses such as essential oils). In addition, he

was of the view that she required psychological and psychiatric care. I find that the

plaintiff will indeed benefit from psychological and psychiatric care, and I award her

the cost of psychological treatments proposed.

[307] Dr. Winston recommended the plaintiff see a psychiatrist with a specialty in

substance use disorders. The goal would be to address her misattribution and deep-

seated perception of disability, which is out of proportion to the injuries she

sustained. I accept that due to the accident the plaintiff is entitled to attend a

psychiatrist for this purpose. There is, however, no evidence that she will incur any

expense to do so, and therefore no basis for a monetary award.

[308] Dr. Caillier further recommended that the plaintiff engage in a regular exercise

program working with a kinesiologist or personal trainer to achieve a positive impact

on her fatigue, mental health, and management of her chronic pain and improve her

Leach v. Insurance Corporation of British Columbia

Page 69

physical deconditioning. However, Dr. Caillier expects that the plaintiff will likely have

ongoing flares of pain depending on the activity that she is engaged in, whether

repetitive, sustained, or heavier based.

[309] Given the improvement that she has enjoyed in her condition to date, I am not

persuaded that the plaintiff requires this type of assistance on any kind of ongoing

basis, but I will allow her the cost of these sessions for one year.

[310] The plaintiff gave evidence that, while she was working, she suffered from

daily headaches and weekly debilitating headaches and that she continues to suffer

from daily, low grade headaches. While her headaches are reduced in intensity

while she is off work completely, Dr. Caillier said that that they will likely return to the

level they were at once she returns to work.

[311] Dr. Caillier expressed the view that the plaintiff’s headache management has

not been optimized and recommended Botox injections to manage her headaches if

they are occurring more than 15 days per month. She testified that Botox has a 70%

success rate in terms of lowering the number of days of headache and the impact on

function. She explained that Botox, however, does not work for post-traumatic

headaches. If the Botox is helpful, Dr. Caillier envisages the plaintiff requiring

injections every three to four months for the rest of her life.

[312] The plaintiff proposed a 50% contingency for the cost of Botox annually. The

risk to the plaintiff is that, if the Botox is successful in managing her headaches, she

will sustain a shortfall to carry out this treatment over her lifetime. In my view, this is

a reasonable approximation of the likelihood that the plaintiff will need and benefit

from Botox, and I would therefore allow one half of the cost of this treatment as

determined by Ms. Craig and costed out by Mr. Benning.

[313] Dr. Lu recommended a dietetic assessment to address the plaintiff’s weight

gain as a result of the collision. I am not persuaded that this is a reasonable expense

that ICBC should cover as a result of the accident.

Leach v. Insurance Corporation of British Columbia

Page 70

[314] When asked in her direct examination about the treatment she finds most

beneficial, the plaintiff’s response was counselling. She testified that she intends to

continue with counselling and that she continues to work on issues arising from the

collision with Dr. Chuck Jung. The plaintiff attended weekly for counselling with him

through large parts of 2019 and 2020, but she has attended counselling less

frequently since moving to Campbell River and being off work.

[315] Dr. Lu expressed the view that the plaintiff should continue with her current

therapy until there is a remission of her PTSD but cautioned that even with

improvement in her PTSD, she should have access to psychological treatment as

she is likely to have more symptom deterioration with periods of increased stress

Dr. Lu also expressed the view that she is at risk of post-partum depression. He

considered that longer-term psychological support may be needed due to the

duration of her PTSD.

[316] The plaintiff argued that it will be especially important to maintain her access

to counselling for the next three years, after she has her baby, in the post-partum

period, and to address the risk of worsening of her PTSD and relapse. After that, she

claims a need for access to counselling over the course of her lifetime to deal with

stressors that may arise and to address the fair prognosis for her PTSD.

[317] I find that the plaintiff has proven the need for additional counselling for the

year proposed.

[318] The plaintiff and the lay witnesses gave evidence of her use of essential oils

for pain management. As there is no evidence of the cost of such oils, the plaintiff

argued that the cost of compounded topical cream can be awarded in place of the

cost that she will expend on essential oils. I am not satisfied that the plaintiff would

not have used these oils but for the accident, and I reject her submission that I

should substitute the cost of a cream that she will not use for the unidentified cost of

the oils.

Leach v. Insurance Corporation of British Columbia

Page 71

[319] The plaintiff is properly not making a claim for anti-depressants that she does

not intend to use.

[320] Dr. Caillier recommended riboflavin, magnesium citrate, and coenzyme Q10

supplements, gravol for headache management, and Cambia for acute treatment of

her migraine headaches when they are more severe. The plaintiff gave evidence

that she is open to using medications to assist with her headache management

because she has not had success with any other treatments for them. The

recommendation for Cambia is for a usage that is more frequent than the plaintiff

testified to having migraines. If the cost of Botox is awarded, the plaintiff concedes

that it is likely that Cambia would be duplicative for headache management, and on

those bases she claims only 50% of the cost of the Cambia. I accept that this is a

reasonable expense that flows from the accident.

[321] The plaintiff is not making a claim for orthotics, but she does claim for the cost

of custom ear plugs. She testified to using ear plugs when she is in noisy spaces

and feels overwhelmed. Dr. Caillier recommended custom ear plugs to assist with

the plaintiff’s noise sensitivity. I find that this claim is warranted.

[322] She also claims for the light weight vacuum and anti-fatigue mat

recommended by Dr. Caillier. I am not persuaded that the vacuum is a reasonable

expense that results from the accident, or that a light weight vacuum is any more

expensive than a traditional vacuum. I am similarly not persuaded that the mat has

been necessitated by the accident.

[323] The plaintiff advanced a claim for regular household assistance and heavier

seasonal cleaning. Ms. Craig recommended assistance for regular household

cleaning and based her recommendations for this assistance on the apartment that

the plaintiff was living in at the time of the collision, which the plaintiff said was 500

sq. ft., whereas she is now living in a home that is 2,000 sq. ft. The plaintiff testified

that she struggles with housekeeping tasks and she has had assistance from a

friend. She gave no evidence of any payment to the friend for her assistance, nor the

extent or frequency of the friend’s assistance.

Leach v. Insurance Corporation of British Columbia

Page 72

[324] In addition to receiving housekeeping assistance, Ms. Craig recommended

that she will need to pace herself or perform aggravating tasks for short intervals,

and she will require assistance for heavier and seasonal cleaning, such as moving

furniture, washing walls/windows/blinds, cleaning cupboards and moving heavier

storage boxes, repetitive heavier tasks involved in home repairs and maintenance,

such as those completed in stooped postures (for instance, changing lightbulbs,

painting walls, or painting ceilings), and assistance for moving.

[325] Dr. Caillier testified that in making these recommendations, she took into

consideration the amount of time usually spent by women doing housekeeping

tasks, the tasks that the plaintiff was doing in this realm prior to the collision, and the

tasks she can still do based on the limitations as determined in her functional

capacity evaluation.

[326] I do not find that a comparison of the amount of time usually spent by women

doing housekeeping tasks and the tasks that the plaintiff was doing in this realm

prior to the collision to be at all helpful. That said, I do accept that the plaintiff will be

unable to do some of the heavier tasks around her home.

[327] In assessing cost of future care, the role taken by family members in

providing care and assistance is not to reduce these costs; see Feng v. Graham

1988, 25 B.C.L.R. (2d) 116 at para. 42.

[328] While the plaintiff should not have to rely on her partner to take on tasks that

she otherwise would have completed and that she was able to do prior to the

collision, she would be double compensated if she were to receive an award for

tasks that arise from her cohabitation with him which he would have performed

regardless of her condition.

[329] Mr. Deveny agreed that he was solely responsible for his own housekeeping

prior to meeting the plaintiff. Prior to meeting the plaintiff, Mr. Deveny was regularly

away from home when working in a logging camp, and he said that he would have

left his home in the state he was comfortable with and returned to the home in that

Leach v. Insurance Corporation of British Columbia

Page 73

state. He testified that now he is picking up the slack with housekeeping when he is

home from camp. Now, the plaintiff is in their home while he is away for work and

Mr. Deveny says that he is doing housework that he would not have been doing prior

to the collision because of her limitations.

[330] The plaintiff submits that, while her pain will not abate at age 67, once she

has retired, she will be in a position to spend her energy on cleaning tasks in lieu of

working. On that basis, she claims for these items to retirement.

[331] I assess the plaintiff’s entitlement to household assistance at $35,000.

[332] As the plaintiff attended at the gym prior to the collision, she is not making a

claim for a gym membership. In conclusion, I assess the plaintiff’s future care costs

to be:

a)

b)

c)

d)

e)

f)

Physiotherapy

$43,334

$34,787

$1,375

Psychology sessions

Personal trainer/kinesiologist

Botox

$66,817

$7,275

Additional Counselling

Imitrex/Cambia

Ear plugs

$24,460

$391

g)

h)

Household assistance

TOTAL

$35,000

$213,439

Special Damages

[333] The defendant contends that the range of special damages is between

$20,000 to $21,997.

Leach v. Insurance Corporation of British Columbia

Page 74

[334] The plaintiff claims the entire amount of the special damages she has

incurred, totalling an outstanding amount of $21,997.45. The parties agreed on the

special damages, with the exception of the counselling that the plaintiff undertook,

for which she claims an outstanding amount of $1,252. She claimed it was for

treatment for issues relating to the collision. She was not challenged on any specific

sessions being unrelated to issues arising from the collision, which would have

afforded her the opportunity to provide further details of her treatment. I find that the

plaintiff has proven this expense was incurred as a direct consequence of the

collision, and I assess her special damages at $21,997.45.

Conclusion

[335] As the plaintiff has failed to establish liability against the unidentified owner

and operator of the vehicle that she alleged caused the accident, her claim is

dismissed.

[336] In the event that this decision is appealed, I have assessed the plaintiff’s

damages arising from the accident at:

a)

b)

c)

d)

e)

Non-pecuniary damages

Loss of Past Income earning capacity

Loss of Future Income earning capacity

Future Cost of Care

$180,000

$130,000

$350,000

$213,439

Special damages

$21,997.45

$895,436.45

TOTAL

“The Honourable Chief Justice Hinkson”

Leach v. Insurance Corporation of British Columbia

Page 75

Schedule A