Kuskis v. Hon Tin,


2008 BCSC 862

Date: 20080630
Docket: M025053
Registry: Vancouver


Ariane Kuskis



Hon Tin, Hontin Goods & Repairs Ltd.,
Robert Worrall and Melanie Iverson


Before: The Honourable Madam Justice Dickson

Reasons for Judgment

Counsel for the Plaintiff:

D.N. Osborne

Counsel for the Defendants:

R. Killough
C. Friesen


Date and Place of Trial/Hearing:

October 22-26; 29, 2007
November 2; 5 - 9, 2007



Vancouver, B.C.


[1]                The plaintiff, Ariane Kuskis, claims damages for personal injuries sustained in a motor vehicle accident on March 14, 2001.  The defendants admit liability but dispute the amount of damages claimed.

[2]                Ms. Kuskis was a 38 year old operations manager at a large Vancouver travel agency when the accident occurred.  Although she suffered from headaches, neck pain, and back pain prior to its occurrence these problems were reasonably well managed and she functioned without significant impairment.  Before the accident Ms. Kuskis was an energetic, hard working woman who enjoyed success in her career and led an active, satisfying life.

[3]                Ms. Kuskis contends that, as a result of the accident, she suffered soft tissue injuries to her neck, shoulders, and upper back, together with a dramatic worsening in her headaches and chronic pain.  In consequence, she says, she requires treatment and medication and was forced to leave her job for more flexible, less remunerative work.  She claims damages for pain and suffering, past income loss, impairment of future income earning capacity, cost of future care, and special damages for past cost of care.

[4]                The defendants accept that Ms. Kuskis was injured in the accident but contend that she has understated her pre-accident health problems and overstated them after its occurrence.  They deny that she left her job due to the effects of her injuries and attribute any worsening in her headaches to self-imposed stress.  In sum, they say Ms. Kuskis is entitled to modest awards for pain and suffering and special damages but that she suffered no other form of loss.


[5]                The issues for determination are:

(a)        What was Ms. Kuskis’ condition prior to the accident?

(b)        What has Ms. Kuskis’ condition been since the accident, and why?

(c)        What is Ms. Kuskis’ future prognosis?

(d)        What damages should Ms. Kuskis receive?


Pre-accident condition

[6]                Ms. Kuskis was born on June 3, 1963, and grew up in Toronto, Ontario.  Although her parents separated when she was a teenager, her childhood and adolescence were stable.  She was happy, athletic, and had friends.

[7]                Ms. Kuskis completed grade 12 in 1982.  Thereafter, she took college courses in hospitality and tourism and worked at various jobs in those industries in Ontario and British Columbia.  Her work in hospitality involved frequent physical exertion.  Her work in tourism involved prolonged computer and telephone use, as well as considerable workload stress.

[8]                When she was 12 years old Ms. Kuskis began to experience migraine headaches.  They were painful, usually accompanied by a visual aura, nausea, and vomiting, and often followed by a sore neck and back.

[9]                Ms. Kuskis’ migraine headaches would typically start in her neck and move to the front of her head, often on both sides.  The pain was throbbing.  The migraines sometimes lasted for two or three days at a time.

[10]            Over the years Ms. Kuskis used various medications to assist her in managing her migraine headaches.  When a migraine came on she would take medication immediately, which helped to reduce the pain.  Sometimes, however, she had to stop what she was doing and lie down.

[11]            From the outset Ms. Kuskis’ migraine headaches occurred with variable frequency.  They were triggered by factors such as diet, sleep, exercise and stress.  The winter months were typically worse than the summer months.  Ms. Kuskis avoided certain foods and prolonged physical exertion in an effort to reduce the frequency of her migraines.

[12]            It is impossible to say precisely how often Ms. Kuskis experienced migraine headaches during her adolescence and early adulthood.  I find, however, that, on average, they occurred approximately once per month.

[13]            In the 1990s, Ms. Kuskis began to take a medication known as Cafergot to treat her migraine headaches.  If she took it soon enough the Cafergot reduced, or even prevented, the migraine pain, although it did not stop the nausea, vomiting, or associated neck pain.

[14]            When she began to work Ms. Kuskis also developed tension headaches and neck and shoulder pain, primarily in connection with her use of telephones and computers.  She treated these problems with Advil or Tylenol, which helped to varying degrees.  From time to time, a tension headache or neck and shoulder pain would trigger a migraine.

[15]            During the 1990s Ms. Kuskis sought chiropractic care in connection with her headaches and musculoskeletal complaints.  From October 1990 to June 1991 and February 1993 to August 1995 in Toronto she saw a chiropractor, Dr. Viggiani, who provided her with 127 treatments.  Dr. Viggiani’s records are replete with references to Ms. Kuskis’ ongoing complaints of headache and of neck and shoulder pain.

[16]            The defendants submit that, in her testimony, Ms. Kuskis understated the frequency and intensity of her headaches, neck pain, and shoulder pain during the time she lived in Ontario.  Taking into account Dr. Viggiani’s records, I agree.  I find, however, that Ms. Kuskis was able to lead a busy, productive and enjoyable life in Ontario despite her persistent headache and neck and shoulder complaints.  In so doing I take into account the evidence of Andrea Guziak, Ms. Kuskis’ friend, and the general circumstances of her life.

[17]            Andrea Guziak met Ms. Kuskis in high school.  They became close friends and later worked together at a travel agency in Toronto.  Ms. Guziak described Ms. Kuskis as an optimistic, energetic person who suffered from time to time from migraines.  According to Ms. Guziak, however, prior to the accident Ms. Kuskis was not limited by her migraines, or any other health problem, in any significant or obvious way.

[18]            Ms. Guziak was a straightforward, credible witness.  I accept her evidence regarding her observations and impressions of Ms. Kuskis’ condition.

[19]            In 1995 Ms. Kuskis moved to Whistler, British Columbia.  She worked as a waitress and travel agent while she lived there.

[20]            In 1997, Ms. Kuskis moved to Vancouver, where she continued to work in the travel industry.  In 1998, she joined Uniglobe Advance Travel, where she progressed rapidly in a demanding and responsible job.

[21]            Prior to the accident, Ms. Kuskis rose to the position of operations supervisor at Uniglobe.  She automated the entire agency, which was a significant achievement.  Ms. Kuskis enjoyed her work, but found the workload and postural requirements stressful and demanding.  She also enjoyed her social and recreational life, which involved regular exercise, travel and a long-term boyfriend, Robert Worrall.

[22]            Shortly after she moved to Vancouver, Ms. Kuskis came under the care of a family practitioner, Dr. Baggoo.  She also came under the care of a chiropractor, Dr. Didyk.

[23]            Ms. Kuskis told Dr. Baggoo about her history of migraines and Dr. Baggoo prescribed a combination of Cafergot and Gravol.  According to Ms. Kuskis, the Cafergot and Gravol combination was highly effective in controlling her migraine headaches and associated symptoms.  She testified that, with the benefit of these medications, she was pain free and in generally good health prior to the accident.

[24]            The defendants submit that Ms. Kuskis again understated the extent of her headache, neck and shoulder problems in the pre-accident period after she moved to Vancouver.  In support of his submission counsel for the defendants directed the court’s attention to the records of her Vancouver chiropractor, Dr. Didyk.

[25]            Dr. Didyk began to treat Ms. Kuskis on March 18, 1998, shortly after she arrived in Vancouver.  From that date to the day before the accident he treated her 80 times.  His records and testimony reveal that Ms. Kuskis identified her presenting concerns as neck pain, stiff neck, tight shoulder muscles, low back pain, and headache.  Over the years she often reported painful headaches, neck tension, and work-related stress.

[26]            Several of Ms. Kuskis’ friends and colleagues at Uniglobe testified that she was a hard working, active, positive individual prior to the accident.  All were aware of the fact that she suffered from periodic migraine headaches.  Like Ms. Guziak, however, none observed that she was limited by her migraines, or any other health problem, in any significant or obvious way.

[27]            Dr. Didyk was a straightforward, credible witness.  So, too, were Ms. Porter, Ms. Voss and Ms. Iverson:  Ms. Kuskis’ Vancouver friends.  In my view, their description of Ms. Kuskis’ condition and functioning prior to the accident was consistent with her lifestyle and accomplishments.  I accept their evidence in this regard.

[28]            Taking into account all of the evidence, I conclude that, in her testimony, Ms. Kuskis understated the extent of her headaches and neck and shoulder pain following her move to Vancouver.  I find that she continued to suffer regularly from migraine and tension headaches, and from neck and back pain due to stress and postural strain.  I also find that Ms. Kuskis’ tension induced neck and shoulder pain sometimes precipitated migraines and their frequency remained approximately the same as when she lived in Ontario.

[29]            Although Ms. Kuskis continued to suffer from headaches and neck, shoulder and back pain after she moved to Vancouver I find that she also continued to function without significant compromise.  In particular, although Ms. Kuskis was occasionally required to curtail her activities due to a severe headache, she missed very little work, social activity or recreation as a result.

[30]            Despite my conclusion that Ms. Kuskis understated the extent of her pre-accident headaches and neck, shoulder and back pain I am not satisfied that she attempted deliberately to mislead the court.  Rather, taking into account her personality and the common human tendency to reconstruct history in a favourable manner, I find that, in retrospect, Ms. Kuskis recalls her pre-accident health as better than it actually was.

[31]            Gayle Porter was Ms. Kuskis’ direct supervisor at Uniglobe until 2000.  When she left the agency Ms. Kuskis and a colleague took over Ms. Porter’s job.  After she assumed her new responsibilities in 2000, Ms. Kuskis’ new supervisor permitted her to work from home.

[32]            Ms. Kuskis was happy with the more flexible arrangements in place at Uniglobe following Ms. Porter’s departure.  She testified that in the six months preceding the accident she enjoyed her work and had no plans to change jobs.

[33]            I accept that Ms. Kuskis had no specific plans to leave Uniglobe in the period immediately preceding the accident and her future there was bright and secure.  I find, however, that, despite her general job satisfaction, Ms. Kuskis experienced considerable work-related stress and believed, accurately, this stress contributed to her ongoing headache and musculoskeletal complaints.  Indeed, prior to the accident Dr. Didyk counselled Ms. Kuskis to leave her job at Uniglobe in order to improve the state of her health.

The Accident

[34]            The accident occurred on March 14, 2001, at the intersection of Broughton and Robson Streets in Vancouver at 4:30 p.m.  Mr. Worrall was driving.  Ms. Kuskis was a properly seat-belted front seat passenger.  They were en route to Uniglobe.

[35]            Mr. Worrall and Ms. Kuskis entered the intersection of Broughton and Robson Streets on a green light, travelling north across Robson, at a speed of between 20 and 30 kilometres per hour.  They were struck in the driver’s door area by a left-turning van.  The van was driven by the defendant, Hon Tin.

[36]            Ms. Kuskis did not foresee the collision prior to its occurrence.  On impact her head jerked to the right and hit the window, then snapped back.  She remained conscious.  The window did not break.

[37]            Immediately after the collision, Ms. Kuskis felt pain shoot from the right side of her neck up the right of her head.  She was shocked and shaken, and her head began to ache.

[38]            Ms. Kuskis was able to get out of the car after the accident.  She walked to the Uniglobe office where she called the Insurance Corporation of British Columbia to make a report.  She does not recall what she did for the rest of the day.

Positions of the parties on post-accident condition

[39]            Ms. Kuskis claims she suffers from more frequent migraines and a new form of headache, together with chronic neck and shoulder pain, as a result of the accident.  She estimated that her headaches increased dramatically from their pre-accident frequency, for the first few years to more than 30 per year.  According to Ms. Kuskis these headaches sometimes last for several days at a time.

[40]            Ms. Kuskis testified that, with the benefit of treatment, her migraines are less frequent in recent years than they were in the period immediately after the accident.  They still occur more often than they did in the past, however, and are painful and disabling.  Ms. Kuskis says she also suffers from constant neck and shoulder pain and very frequent “ICBC headaches”.  According to Ms. Kuskis, her ability to work, socialise and enjoy recreation has been adversely affected in various ways as a result.

[41]            Ms. Kuskis stated that her relationship with Mr. Worrall ended in 2004 because she was irritable and unhappy due to her frequent headaches and chronic pain.  In addition, she claimed that, since the accident, she has difficulty with heavy lifting and some forms of housework.  Further, she testified that she quit her job at Uniglobe in 2003 because she was exhausted and could no longer keep up the pace at work.

[42]            Ms. Kuskis claimed that she took a lower paying job at Sabre Travel Network in 2003 because it offered flexible working hours.  This became necessary after the accident, she said, because of the dramatic increase in her headaches and neck and shoulder pain and their negative impact upon her ability to work.

[43]            Ms. Kuskis worked from home while she was employed by Sabre.  Unfortunately, however, her employment with Sabre ended in 2005 due to changes within the company.  She claims that, since then, she has done her best to earn income by operating small businesses on Mayne Island, where she had purchased a home in 2004.  In addition, she has supplemented her income with consulting work in the travel industry.

[44]            In Ms. Kuskis’ submission, although she has worked regularly since the accident she has done so only because of considerable stoicism and despite a dramatic worsening of her headaches and neck and shoulder pain.  She argues that her conduct is consistent with her claim, as is the evidence of her friends, colleagues, health care providers, and expert witnesses.

[45]            The defendants submit that Ms. Kuskis overstated the frequency and intensity of her post-accident headaches and pain, and their impact upon her life.  They say she left Uniglobe for reasons entirely unrelated to the accident and submit any post-accident increase in her headaches is attributable to voluntarily increased stress.  According to the defendants, Ms. Kuskis has not, as she claims, developed a new form of “ICBC headache”.  Rather, her headaches are migraines of the sort she has experienced throughout the course of her life.

[46]            Counsel for the defendants argued that Ms. Kuskis was not a credible witness.  As a result, in his submission, the expert evidence presented on her behalf is of little or no value because it assumes the accuracy of her self-report.

[47]            In support of his submission, counsel directed the court’s attention to several inconsistencies between Ms. Kuskis’ testimony and other evidence presented at trial.  He emphasized that she missed very little work at Uniglobe and Sabre and continued, after the accident, to lead an active work, social and recreational life.

[48]            Counsel also submitted that Ms. Kuskis was unresponsive to questions and has, in the past, demonstrated a serious disregard for the truth.  He relied on evidence from two witnesses who testified that Ms. Kuskis showed no signs of limitation at work or at home on Mayne Island.  He also noted that she described her pre-accident history to several experts inaccurately and did not report pain of the magnitude described at trial to her caregivers as treatment progressed.

[49]            The issue of Ms. Kuskis credibility is of key significance in this case.  To analyse the parties’ respective positions I must consider all of the evidence regarding Ms. Kuskis’ conduct, functioning, and treatment before and after the accident.  Some of that evidence, together with my findings, is summarised below.

Post-accident condition

[50]            Within a few days of the accident Ms. Kuskis’ headache had resolved.  She was, however, unable to turn her neck.  She saw Dr. Didyk on March 21, 2001, and told him about the accident.  He advised her to see Dr. Baggoo, which she did on March 28, 2001.

[51]            Dr. Baggoo testified that, on examination on March 28, Ms. Kuskis had pain along her right neck with left lateral flexion, decreased range of motion with right rotation, and mild tenderness over the area of the right paracervical muscles.  She diagnosed soft tissue injury of the neck.

[52]            Ms. Kuskis attended at Dr. Baggoo’s office on many occasions after the accident.  She also consulted several other health care practitioners.

[53]            When she saw Dr. Baggoo Ms. Kuskis sometimes complained of headaches and neck and shoulder pain of variable intensity.  She sometimes associated the headaches with her neck and shoulder pain and sometimes described them as migraines.  She did not complain of headaches every time she saw Dr. Baggoo.

[54]            After the accident, Dr. Baggoo prescribed various treatments for Ms. Kuskis’ accident-related injuries.  These treatments included physiotherapy, massage and medication.  In December 2001, Dr. Baggoo referred Ms. Kuskis to a specialist in physical medicine and rehabilitation, Dr. Dhawan.

[55]            Dr. Dhawan diagnosed Ms. Kuskis as suffering from soft tissue injuries to the right cervical facet joints, mild soft tissue injury to the right thoracic facet joints, and right rotator cuff tendonitis, secondary myofacial pain causing occipital headaches, and right trapezius myofascial pain.  Since December 2001 he has treated her with a series of neck, back, and shoulder steroid and anaesthetic injections approximately every three months.

[56]            Ms. Kuskis testified, and I accept, that the injections Dr. Dhawan administers are painful and unpleasant.  From her perspective, however, they are worthwhile because they ameliorate, but do not abolish, the persistent pain in her neck and shoulder.  She also testified, and I accept, that her neck pain sometimes triggers a headache.

[57]            Dr. Dhawan has prescribed numerous medications to assist Ms. Kuskis in managing her neck and shoulder pain and associated headaches and disruption in her sleep and mood.  Over the years these medications have included, for example:  Tylenol 3; Oxycodone; Gabapentin; Nortryptilline; and Celexa.  She has been a compliant patient who follows the treatment prescribed.

[58]            In the course of the trial I admitted video taped evidence of Dr. Dhawan administering injections to Ms. Kuskis.  I did so because they helped me to understand the injection process described by Dr. Dhawan and Ms. Kuskis in their testimony and did not include any form of expert opinion evidence.

[59]            Counsel for the defendants cross-examined Dr. Dhawan on certain highly unprofessional conduct for which he has been disciplined.  He urged me to find that Dr. Dhawan was not a credible witness and not to rely on his evidence.  He also emphasized that Dr. Dhawan was under the mistaken impression that prior to the accident Ms. Kuskis was completely symptom free.

[60]            It is apparent from his reports that Dr. Dhawan did not understand the extent of Ms. Kuskis’ pre-accident problems with headaches and tension induced neck and shoulder pain.  This misunderstanding was based on an inaccurate note from Dr. Baggoo and on underreporting by Ms. Kuskis.  Dr. Dhawan’s misunderstanding does not, however, entirely undermine the reliability of his opinion, which was based partly on the reported history, but also on his observations of Ms. Kuskis and on her response to treatment.

[61]            It is also apparent that Dr. Dhawan has, in the past, conducted himself in an unprofessional, disreputable manner.  In my view, it is particularly important to scrutinize his evidence with care.  Taking into account Dr. Dhawan’s role as a treating physician, however, in conjunction with the other evidence, I accept his testimony regarding Ms. Kuskis diagnosis and treatment history.  I do not find it necessary or helpful to rely on Dr. Dhawan’s evidence regarding future prognosis or future treatment needs.

[62]            Dr. Dhawan testified, and I accept, that soft tissue may become persistently inflamed due to injury.  As a result, the injection of steroids sometimes helps to ameliorate the pain.  In Ms. Kuskis’ case, the injections Dr. Dhawan administers are helpful.

[63]            In addition to receiving treatment from Drs. Baggoo and Dhawan, Ms. Kuskis continued to receive chiropractic treatment from Dr. Didyk until she moved to Mayne Island in 2004.  After the accident, he focused that treatment primarily on the area of her right shoulder and neck.

[64]            Dr. Didyk was a fair and impressive witness.  He testified that, after the accident, Ms. Kuskis directed him to an area of her right shoulder where she reported the pain would not go away.  According to Dr. Didyk this represented a change in Ms. Kuskis’ post-accident condition.  I accept his evidence in this regard.

[65]            Dr. Baggoo also noted that Ms. Kuskis’ neck and upper back pain presentation appeared to change after the accident.  In particular, in her report of May 31, 2004, she stated that Ms. Kuskis “has no history of neck and back pain of this type prior to the MVA” [emphasis added].

[66]            It appears that Dr. Baggoo may not have been fully aware of the extent of Ms. Kuskis’ pre-accident tension induced neck and upper back complaints, which were managed primarily by her chiropractor.  I accept, however, that Dr. Baggoo correctly identified a change in Ms. Kuskis’ post-accident presentation in connection with her neck and shoulder complaints.

[67]            After the accident, Ms. Kuskis continued to work as the operations manager at Uniglobe until July 2003.  She missed a total of 18 days work due to headaches, but made up the time and did not lose any pay.  She typically put in 40 to 60 hours of work per week at Uniglobe.

[68]            Ms. Kuskis also continued to travel after the accident.  For example, she went on trips to Florida, Hawaii and Costa Rica.  In addition, Ms. Kuskis maintained an active social and recreational life.  She kayaked, canoed and went to the gym regularly.  She also entertained and kept up her home in Ladner without assistance, except during a short period in 2004 when she had a broken ankle.

[69]            In April 2002 Ms. Porter returned to Uniglobe.  Following Ms. Porter’s return Ms. Kuskis was no longer permitted to work from home.  This loss of flexibility was disappointing for her.

[70]            Ms. Kuskis testified that, after the accident, her work performance at Uniglobe suffered significantly due to her increased headaches, chronic neck and shoulder pain, and related exhaustion.  She said she sometimes missed meetings and deadlines, left work early and forgot things.  She described herself as “treading water” and needing more flexibility than the job allowed.

[71]            Ms. Porter, Ms. Voss and Ms. Iverson confirmed, to a limited extent, that there was a change in Ms. Kuskis’ post-accident condition and functioning.  They testified that Ms. Kuskis sometimes seemed exhausted and less engaged in her work and occasionally cancelled social engagements.  According to Ms. Porter, although her skills did not change, after the accident Ms. Kuskis was less able to complete the same high volume of work.

[72]            I accept that Ms. Kuskis was sometimes tired and unengaged at work and occasionally unable to socialise after the accident due to increased headaches and persistent neck and shoulder pain.  I also accept that, as a result, she was less able to complete large volumes of computer-based work in short periods of time.  I find, however, that Ms. Kuskis continued to perform her work at Uniglobe in an entirely satisfactory manner and was in no peril of losing her job.

[73]            In March 2003 Ms. Kuskis was approached by a representative of Sabre Travel with regard to a training position opportunity.  Although the nature of the work at Uniglobe and Sabre was similar, with Sabre, unlike Uniglobe, she would be able to work from home.

[74]            The compensation packages at the Uniglobe and Sabre were similar, though not identical.  At Uniglobe the base salary was $50,000; at Sabre it was $45,000.  Both jobs offered significant, but different, bonus and benefit packages.  Both jobs required substantial computer and telephone work.

[75]            Ms. Kuskis responded to the approach from Sabre immediately and applied for the training position.  On July 21, 2003, she got the job.

[76]            Ms. Kuskis resigned from Uniglobe the day she was hired by Sabre.  In her resignation letter she wrote:

I have accepted an offer with Sabre that allows me to enhance my career goals in training and skill development, and also the opportunity to work from home.  I have decided to tender my resignation as a full-time Manager of Operations and would like August 8, 2003 to be my last date of employment.

[77]            When she resigned Ms. Kuskis offered, confidentially, to provide ongoing part-time consulting services to Uniglobe.  She did not tell Ms. Porter or anyone else at Uniglobe that her departure was related to her headaches or neck and shoulder pain.

[78]            Ms. Iverson testified that, in 2003, Ms. Kuskis mentioned she was considering a move from Uniglobe to Sabre because it would be easier for her to work from home.  Although I accept that Ms. Kuskis made a general comment to this effect to Ms. Iverson, I do not find, as her counsel argued, that she told Ms. Iverson she was moving to Sabre for accident-related reasons.

[79]            Taking into account all of the evidence, I am not satisfied that Ms. Kuskis left her job at Uniglobe in 2003 because she was unable to keep up with her work there due to increased headaches and chronic neck and shoulder pain.  On the contrary, it is apparent that she believed she could work full-time for Sabre and concurrently consult, part-time, for Uniglobe.  This belief is inconsistent with the conclusion that Ms. Kuskis was disabled by her increased headaches and neck pain to the extent she felt it necessary to change jobs or reduce her workload.

[80]            I find that Ms. Kuskis had a long-standing interest in working from home because she enjoyed the flexibility associated with such an arrangement.  For this reason, she was unhappy that she could no longer work at home while employed at Uniglobe.  As she acknowledged at her examination for discovery in 2004, Ms. Kuskis had been waiting for several years for an opportunity to arise with Sabre.  When the opportunity presented itself in 2003, she took it without particular regard to the post-accident increase in her headaches and neck and shoulder pain.

[81]            Although I reject Ms. Kuskis’ assertion that she left Uniglobe because of the increase in her headaches and neck pain, again I do not find she attempted deliberately to mislead the court.  Rather, I conclude that, in looking back, Ms. Kuskis has convinced herself she changed jobs because of increased headaches and chronic pain.  In so doing, she has reconstructed history inaccurately.

[82]            Ms. Kuskis was employed by Sabre from August 2003 to June 2005, when she was laid off due to changes within the company.  While she was with Sabre she worked full-time and travelled extensively for business purposes.  As at Uniglobe, most of her work days were spent at the computer and on the telephone.

[83]            Ms. Kuskis continued to experience periodic headaches and persistent neck and shoulder pain throughout the period she worked for Sabre.  She sometimes took short breaks in the day and wrapped ice packs around her neck while she worked.  If and when the pain became severe she also took medication.  Despite her discomfort, however, as before, Ms. Kuskis missed only a few work days due to headaches and neck and shoulder pain.

[84]            In 2004, Ms. Kuskis sold her house in Ladner and moved to Mayne Island.  Her decision to move was made impulsively.  It was not related to her physical condition.

[85]            The property Ms. Kuskis purchased on Mayne Island had a main house and a three-bedroom bed and breakfast unit.  With help from friends and family, she renovated the bed and breakfast facility, known as the Captain’s Quarters, and began taking in guests in July 2004.

[86]            Ms. Kuskis also undertook other small business ventures after moving to Mayne Island.  In 2005, she took over operation of a gift shop known as Island Elements.  In 2006, she took over operation of a restaurant known as the Mayne Inn Restaurant.

[87]            Ms. Kuskis worked hard at her small business ventures.  She purchased supplies, maintained records and attended to the businesses’ many operational demands.  In so doing, she was often required to perform physical work such as carrying groceries, serving plates of food and stocking shelves.  Despite her neck and shoulder pain she was consistently able to manage all of these tasks.

[88]            Following her move to Mayne Island in 2004 Ms. Kuskis stopped receiving chiropractic and massage treatments.  In April 2005 she told Dr. Baggoo that her neck and shoulder pain was under control, although it persisted in a low grade form.  I am satisfied that this accurately described the nature of her ongoing neck and shoulder pain.  I am also satisfied that, as Dr. Baggoo reported, by April 2005 Ms. Kuskis had a good range of motion of her neck and was functioning well.

[89]            Although, to varying extents, Ms. Kuskis was assisted by family, friends and employees in her business ventures she was the person primarily responsible for their operation.  Until her job at Sabre ended, she was able to operate the Captain’s Quarters and Island Elements while holding down a full-time job.

[90]            After Ms. Kuskis was laid off by Sabre in June, 2005 she received employment insurance benefits for approximately one year.  During this period she continued to operate the Captain’s Quarters and Island Elements.  In late 2005 and early 2006, she also performed consulting work in the travel industry.

[91]            Although obliged to do so while receiving employment insurance benefits, Ms. Kuskis did not advise Human Resources and Skills Development Canada of the income she earned from her consulting and business ventures.  She also drove a car when she was not properly licensed and failed to declare items when she passed through Canada Customs.

[92]            Ms. Kuskis took over operation of the Mayne Inn Restaurant shortly after her employment insurance benefits terminated in 2006.  Although she worked hard, this business was not successful and it closed in August 2007.  The Captain’s Quarters and Island Elements remained open at the time of trial, but they have not been particularly profitable.

[93]            It was reasonable for Ms. Kuskis to attempt to earn income by operating her small business ventures after she moved to Mayne Island.  She was, however, inexperienced and they have not produced income at the levels she hoped would be achieved.  For example, for the period 2004 to 2007 the net profit from the Captain’s Quarters and Island Elements was only about $30,000.  I am satisfied that the poor performance of Ms. Kuskis’ business ventures is a direct result of her inexperience and unrelated to her headaches and neck and shoulder pain.

[94]            In addition to operating her small businesses at the time of trial, Ms. Kuskis had returned to performing consulting work in the travel industry.  She was working on a contract for Uniglobe that was scheduled to run to December 2007 with the possibility of a further extension.  Pursuant to its terms, she received a monthly management fee of $5,510, a monthly administration fee of $800, some travel benefits, parking and expenses.

[95]            Several of Ms. Kuskis’ friends and colleagues testified to her remarkable energy, drive and productivity, despite her ongoing problems with headaches and neck pain.  Two of them, Ms. Reid and Mr. Curran, claimed that Ms. Kuskis showed virtually no signs of pain or limitation after she moved to Mayne Island.  Others said it was apparent that she sometimes struggled with pain and fatigue, but pushed herself and was generally able to carry on.

[96]            I did not find Ms. Reid or Mr. Curran to be balanced, persuasive witnesses.  Both had limited opportunities to observe Ms. Kuskis and both demonstrated hostility toward her.  I do not accept their testimony that Ms. Kuskis showed no signs of limitation or distress due to headaches and pain after she moved to Mayne Island.  Rather, I am satisfied that Ms. Kuskis continued occasionally to appear exhausted, cancel social commitments and to complain of neck pain.

[97]            After she moved to Mayne Island in 2004 Ms. Kuskis’ five-year relationship with Robert Worrall came to an end.  This was due, in part, to Ms. Kuskis’ diminished interest in sexual contact by reason of fatigue and discomfort and her increased level of general irritability.

[98]            Since her break-up with Mr. Worrall, Ms. Kuskis has been involved in two other intimate relationships.  One relationship lasted for approximately one year, the other for approximately seven months.  In each case the relationship ended for a variety of reasons.  In each case, one of those reasons was Ms. Kuskis’ ongoing difficulties with fatigue and physical discomfort.

[99]            By 2004 Dr. Baggoo and Ms. Kuskis began to distinguish between Ms. Kuskis’ migraines and what Ms. Kuskis now calls her ICBC headaches.  According to Ms. Kuskis, the migraines are accompanied by an aura but the ICBC headaches are not.  She described the ICBC headaches as different from her migraines in both their presentation and frequency.  In particular, she said the ICBC headaches are more frequent, more painful, and more difficult to control.

[100]        Ms. Kuskis testified that the ICBC headaches begin on the right side of her neck and shoulder, where there is an area of constant pain of variable intensity.  The headache travels into the right side of her head behind her ear, to her temple, and sometimes moves to the area of her left ear.  As a result of these headaches and pain, she says, she is often exhausted and debilitated, which affects her mood and sleep.

[101]        As is apparent from my conclusions regarding her pre-accident condition, I do not find that Ms. Kuskis was an entirely reliable witness.  She understated the extent of her pre-accident health problems to various experts and in her testimony to the court.  In addition, it is clear that Ms. Kuskis has not always behaved in an exemplary manner.  I do not conclude, however, that she is an essentially untruthful person whose evidence should be rejected out of hand.

[102]        Although Ms. Kuskis reconstructed history inaccurately I am satisfied that, by and large, she did so without attempting deliberately to mislead.  She was assessed by numerous experts, including an experienced functional capacity evaluator, and did not demonstrate signs of malingering, undue pain behaviour or inadequate effort.  In addition, she is an intelligent individual who was aware of the content of her clinical and employment records and history.

[103]        In my view, it is inherently unlikely that Ms. Kuskis would have intentionally misreported to the experts and the court knowing, as she did, that many of her statements were inconsistent with her records and life circumstances.  Taking into account all of the evidence, I am satisfied that Ms. Kuskis has genuinely, but mistakenly, convinced herself of the accuracy of her self-reports.

[104]        I conclude that, in her testimony, Ms. Kuskis exaggerated the frequency and intensity of her post-accident headaches and neck and shoulder pain.  Taking into account the manner in which she has functioned since the accident and many of her prior statements to treating physicians I do not accept that she has suffered to the extent she now claims.

[105]        I am, however, satisfied that, since the accident, Ms. Kuskis has experienced a significant increase in the frequency of her headaches and persistent, low grade neck and shoulder pain.  In my view, her conduct in undertaking extensive treatments, including steroid injections and powerful medication, is consistent with this conclusion, as is the fact that the injections provide a measure of relief.  The descriptions of Ms. Kuskis’ altered post-accident condition provided by her friends, colleagues and health care practitioners also support this conclusion.

[106]        It is impossible to say precisely how many headaches Ms. Kuskis has suffered in addition to those she would have experienced in any event due to her pre-existing headache disorder.  On balance, however, I conclude that her headaches, migraine and otherwise, approximately tripled in frequency in the two years immediately following the accident.  Thereafter they improved somewhat and now occur, in total, approximately twice as often as they did before.  This increase is attributable to Ms. Kuskis’ accident-related injuries.

[107]        It is also impossible to say precisely how much more neck and shoulder pain Ms. Kuskis has suffered due to her injuries.  I conclude, however, that her neck and shoulder pain has changed and worsened since the accident occurred.

[108]        Ms. Kuskis now suffers from a new form of neck and shoulder pain in addition to the tension induced neck pain she previously experienced.  This new form of neck and shoulder pain is persistent, but low grade in nature and controlled by steroid injections.  It does not limit Ms. Kuskis significantly in her ability to engage in physical activity but it sometimes triggers headaches and interferes with her sleep.

[109]        I am not satisfied that, as the defendants contend, the post-accident increase in Ms. Kuskis’ headaches and neck pain is attributable to increased stress associated with her move to Mayne Island and frantic work pace.  Ms. Kuskis has always worked hard and led an active, busy, often stressful life.   Until the accident, however, she did not suffer from headaches and neck and shoulder pain to the extent that she does now.

[110]        Dr. William Koch, a psychologist, assessed Ms. Kuskis’ emotional state in December 2004.  He concluded that, due to her ongoing pain, she met the criteria for a diagnosis of major depressive disorder.  In addition, he found she showed signs of accident-related posttraumatic stress.

[111]        Dr. Maelor Vallance, a psychiatrist, assessed Ms. Kuskis in December 2005.  He explained that depression waxes and wanes.  In his view, although frustrated and irritable due to pain Ms. Kuskis was not clinically depressed.  He disagreed with Dr. Koch’s opinion that Ms. Kuskis shows signs of posttraumatic stress.

[112]        I accept Dr. Vallance’s opinion regarding Ms. Kuskis’ ongoing emotional condition and conclude that, while her mood and sleep have been compromised by her increased headaches and neck pain, she is not, and has never been, clinically depressed.

[113]        I also accept Dr. Koch’s evidence that psychological distress presents on a continuum.  I find Ms. Kuskis’ emotional state has been negatively affected by her increased headaches and neck pain and her ability to maintain intimate relationships has been diminished as a result.  In particular, as noted, I conclude that the increase in Ms. Kuskis’ headaches and neck pain, and associated irritability, contributed materially to the termination of her relationship with Mr. Worrall.  In addition, they contribute materially to her ongoing difficulty in maintaining other intimate relationships.

[114]        Dr. Schweigel is an orthopaedic surgeon.  He assessed Ms. Kuskis in November 2005.  In his opinion, she sustained soft tissue injuries to her neck, shoulder and back in the accident and suffered an aggravation of her pre-existing neck, shoulder and migraine problems.  He does not believe that Ms. Kuskis suffered sufficient damage to her musculoskeletal system to explain her post-accident pain.

[115]        Dr. Schweigel conceded that chronic pain is an area of medicine that is not fully understood.  I accept that this is so.  As noted, I also accept that, while Ms. Kuskis exaggerated the extent of the increase in her headaches and neck and shoulder pain, Dr. Dhawan accurately diagnosed its cause: soft tissue injuries sustained in the accident.

[116]        Lila Quastel, an occupational therapist, also assessed Ms. Kuskis in November 2005.  Her purpose was to identify Ms. Kuskis’ functional capacities and acquired work limitations resulting from her injuries.

[117]        Unfortunately, Ms. Kuskis did not report her history, level of function and complaints to Ms. Quastel in an accurate manner.  For example, she claimed that left her job at Uniglobe because of her injuries and took a $30,000 drop in salary when she went to Sabre.  This was untrue.  She also associated the fall that caused her fractured ankle in 2004 with wooziness caused by pain medication.  This, too, was untrue.

[118]        I conclude that Ms. Quastel formed a mistaken impression of Ms. Kuskis’ functional capacities and work limitations based on her inaccurate self reports.  In the circumstances, I am unable to rely on most of Ms. Quastel’s opinion and recommendations.  I accept, however, that she accurately measured Ms. Kuskis’ response to testing, which demonstrated full effort.  I also accept that, as Ms. Quastel opined, her level of physical fitness is reasonable and she has full range of motion in all joints except her right shoulder, which is mildly limited for hard internal rotation.

[119]        The defendants challenge Ms. Kuskis’ assertion that she has experienced a distinct new form of ICBC headache since the accident.  In their submission, Ms. Kuskis continues to suffer only from migraine headaches that are unrelated to the accident.

[120]        I have concluded that the increase in Ms. Kuskis’ headaches and neck and shoulder pain is causally related to the soft tissue injuries she sustained in the accident.  I find that her increased neck and shoulder pain sometimes leads to full-blown migraines.  In addition, it is related to other painful headaches that she experiences from time to time.

[121]        Dr. Robinson is a neurologist who specialises in headache disorders.  He explained that when patients with a stable migraine disorder are exposed to neck trauma they sometimes suffer an indefinite aggravation of their headaches.  Due to the neck pain caused by trauma such patients develop a new way to get headaches, which may or may not develop into full-blown migraines.

[122]        Dr. Robinson also expressed the view that migraine and tension headaches are substantially the same disorder, but are located differently on the spectrum of severity.  Tension headaches are less severe than migraine headaches.  Sometimes, however, a tension headache will trigger a migraine.

[123]        In Dr. Robinson’s opinion, given the temporal relationship between the increase in her headaches and the accident, Ms. Kuskis developed a worsening of her pre-existing migraine disorder and chronic headaches as a result of her neck injury.

[124]        Dr. Makin is a neurologist called by the defendants.  He does not specialise in headache disorders.  In his opinion, the two forms of headache described by Ms. Kuskis - migraines and ICBC headaches - overlap and are both essentially migraine.  He expressed the view that the accident punctuated Ms. Kuskis’ long-standing headache disorder but did not cause any new type of headache.

[125]        Dr. Makin characterised Ms. Kuskis’ description of her ICBC headaches as “a relatively non-anatomical pattern of spread”.  Dr. Robinson disagreed.  He testified that, taking into account the nerve distributions in the C3 and C4 area of the spine, injury of the sort Ms. Kuskis suffered can cause pain to project forward into the head.  He expressed the view that, but for the accident, Ms. Kuskis’ pre-existing migraine difficulties would not have worsened to the degree that they did.

[126]        I accept Dr. Robinson’s opinion and conclude that Ms. Kuskis developed both a worsening of her pre-existing migraine disorder and chronic headaches due to a neck injury caused by the accident.  In so doing I recognise that Dr. Robinson’s diagnosis is largely dependent on the reliability of Ms. Kuskis’ self-report.  Although that self-report is not entirely accurate, I am satisfied there was, as reported, a temporal relationship between the accident and an increase in Ms. Kuskis’ headaches and a relationship between the injections she receives and a reduction in her neck and shoulder pain.

[127]        On April 27, 2007, Ms. Kuskis was in a minor rear-end collision.  She suffered an aggravation of her soft tissue injuries and associated symptoms for a period of approximately three months as a result.  Damages relating to the accident of April 27, 2007, were not at issue at the trial.

[128]        As noted, at the time of trial Ms. Kuskis continued to operate the Captain’s Quarters and Island Elements on Mayne Island.  Given their poor performance and limited job prospects on the island, however, she testified that she might sell them and return to the lower mainland if she is able to find work.  I am satisfied that this is probably what Ms. Kuskis will do in the next two to three years.

[129]        As also noted, at the time of trial Ms. Kuskis had returned to working as a consultant in the travel industry.  Although the work is similar in nature to her previous employment with Uniglobe and Sabre, it is performed on a project basis pursuant to a contract.  Her employment situation is, therefore, less secure than it was prior to 2005 and Ms. Kuskis does not enjoy all of the same benefits she did when she was an employee.  She is, at present, exploring alternate employment opportunities in the travel and hospitality industries.

Future prognosis

[130]        In May 2004, Dr. Baggoo reported that, while she has benefited from treatment, Ms. Kuskis’ prognosis for significant future improvement was guarded given the passage of time.  In May 2005, she expressed hope that Ms. Kuskis will continue to receive relief from her chronic pain symptoms with medication and other treatment.  She also stated:

I anticipate that she will continue to experience some degree of neck, upper back, and shoulder pain in varying degrees as well as ongoing headaches.  She will continue to be followed closely by Dr. Dhawan and myself.

[131]        Dr. Schweigel testified that, assuming Ms. Kuskis’ head and neck pain has, in fact, worsened significantly, as I find it has, her future prognosis is poor.

[132]        According to Dr. Robinson, no therapy has been found to cure chronic headaches related to soft tissue injury of the head and neck.  Minor alterations in her current medications may be of assistance but Ms. Kuskis will probably continue to have headaches and right shoulder pain for many years to come.

[133]        In Dr. Robinson’s opinion, despite her ongoing difficulties, it is probable that Ms. Kuskis will experience further improvement over the course of the next three to five years.  In his view, she may return to her pre-accident level of headache frequency eventually, depending on whether she suffers any aggravation of her neck and shoulder pain.

[134]        I accept the opinions of Drs. Baggoo, Schweigel and Robinson with respect to Ms. Kuskis’ future prognosis.  I find that, with treatment, Ms. Kuskis headaches will probably continue to improve over the course of the next five years.  I also find, however, that the low grade neck and shoulder pain caused by the accident will probably persist indefinitely.  As a result, some aggravation of Ms. Kuskis’ pre-existing headache condition will also persist.


Non-pecuniary Damages

[135]        Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.  The compensation awarded should be fair and reasonable to both parties:  Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 299; Jackson v. Lai, 2007 BCSC 1023 at ¶ 134.

[136]        For purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases.  Such cases, though helpful, serve only as a rough guide.  Each case depends on its own unique facts:  Andrews; Jackson; Jenkins v. Bourcier, 2003 BCSC 388 at ¶ 87; Radford v. Drobot, 2005 BCSC 293 at ¶ 62.

[137]        The range of damages in cases involving primarily soft-tissue injury with some emotional problems, sleep disruption and the like tend to range from $35,000 to $125,000:  Unger v. Singh, 2000 BCCA 94 at ¶ 32.

[138]        Common factors that influence an award of non-pecuniary damages include age of the plaintiff, nature of the injury, severity and duration of pain, disability, emotional suffering, loss or impairment of life, impairment of family, marital and social relationships, impairment of physical and mental abilities, loss of lifestyle, and the plaintiff’s stoicism (a factor that should generally not penalize the plaintiff):  Stapley v. Hejslet 2006 BCCA 34 at ¶ 46.

[139]        Ms. Kuskis seeks an award of $90,000 for non-pecuniary damages.  She relies on the following cases in support:  Jackson ($100,000); Djukic v. Hahn, 2006 BCSC 154 ($125,000); Fox v. Danis, 2005 BCSC 102 ($100,000); Maillet v. Rosenau et al., 2006 BCSC 10 ($110,000); Prince-Wright v. Copeman, 2005 BCSC 1306 ($100,000); and Unger ($90,000).

[140]        The defendants submit that, taking into account the difference between Ms. Kuskis’ pre-accident and post-accident experience, the appropriate award for non-pecuniary damages is between $30,000 and $40,000.  They rely on the following cases in support:  Jenkins ($35,000); Radford ($40,000); Vanderstap v. Romanuik, 2004 BCSC 219 ($35,000); and Nicholson v. Pham, 2005 BCSC 1527 ($30,000).

[141]        Ms. Kuskis has suffered a significant worsening of her painful pre-existing migraine disorder and a new form of headache due to her soft tissue injuries.  She has also suffered a new form of low grade, but persistent, neck and shoulder pain.  As a result of her increased headaches and pain, she is sometimes exhausted, irritable and unhappy.  She is also less able to produce large volumes of computer-based work in short periods of time.  Given her changed employment circumstances this compromised work capacity, though minimal, is a source of potential frustration and stress.

[142]        Ms. Kuskis is a stoic and determined person.  Despite her increased headaches and neck pain she remains physically active, upbeat and productive most of the time.  She requires painful steroid injections, however, to control her increased neck and shoulder pain and associated symptoms.  She also occasionally requires strong medication such as Oxycodone to manage her pain.

[143]        Although Ms. Kuskis can work, travel and socialise most of the time without significant impairment, her personal life has been diminished by her increased headaches and pain.  In particular, Ms. Kuskis’ ability to form and maintain intimate relationships has been compromised by her increased irritability and fatigue.  This, too, is a source of frustration and stress.

[144]        Taking into account all of the circumstances and the referenced authorities I assess non-pecuniary damages at $65,000.

Past Income Loss

[145]        After the accident, Ms. Kuskis missed a total of 18 days work at Uniglobe due to headaches.  She was, however, able to make up the time and did not lose any income as a result.

[146]        Ms. Kuskis presented her claim for past income loss on the basis that, but for the accident, she would have remained a full-time employee of Uniglobe.  According to Ms. Kuskis if she had not been injured she would not have moved to Sabre, sold her home in Ladner and opened her businesses on Mayne Island.  She argued, therefore, that she has lost the difference between what she would have earned at Uniglobe as a full time employee and what she did earn, net of taxes, from all sources since 2003: approximately $88,000.

[147]        I have concluded that Ms. Kuskis did not leave Uniglobe as a result of her headaches and neck and shoulder pain.  Rather, she left Uniglobe for the reasons she gave at the time:  to enhance her career goals in training and skill development and for the opportunity to work from home, which she enjoyed.  I have also concluded that Ms. Kuskis’ business ventures performed poorly because of her inexperience, not because of problems with headaches and neck pain.  It follows that her past income loss claim, as presented, must fail.

[148]        Although I do not accept that there is a causal relationship between Ms. Kuskis’ decision to leave Uniglobe and business failures, on one hand, and her accident-related injuries, on the other, I have found that her capacity to produce large volumes of computer-based work in short periods of time has been reduced.  That being so it is, in my view, appropriate to consider whether Ms. Kuskis has established a compensable past loss of capacity to earn.

[149]        A claim for past loss of capacity to earn is a claim for the value of work that a plaintiff would have performed but was unable to perform because of the injury at issue:  Rowe v. Bobell Express Ltd., 2005 BCCA 141 at ¶ 30.

[150]        Ms. Kuskis has recently returned to working in the travel industry.  She did not do so, however, until shortly before trial.  Until August 2007, when her restaurant closed, Ms. Kuskis’ time and energy was focused on her small business ventures.  In the circumstances, I am not satisfied that she would have performed additional income generating work but for her injuries.  Accordingly, I make no award for past loss of capacity to earn.

Loss of Future Earning Capacity

[151]        A claim for loss of future earning capacity raises two issues:  (1) has the plaintiff’s earning capacity been impaired to any degree by her injuries and, if so, (2) what amount should be awarded:  Fox at ¶ 91.

[152]        To determine the question of impaired capacity the court considers factors such as whether the plaintiff has been rendered less capable overall of earning income from all types of employment; is less marketable or attractive as a potential employee; has lost the ability to take advantage of all job opportunities that might otherwise have been open; and is less valuable to herself as a person capable of earning income in a competitive labour market:  Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353.

[153]        To quantify a loss of earning capacity the court conducts an assessment, based on the evidence, rather than applying a purely mathematical calculation:  Rosvold v. Dunlop, (2002) 84 B.C.L.R. (3d) 158; Durand v. Bolt, 2007 BCSC 480.  For assessment purposes, income earning capacity is viewed as a capital asset and all relevant positive and negative contingencies must be considered:  Fox at ¶ 92 and 102-103; Parypa v. Wickware, 1999 B.C.J. No. 270.

[154]        One method of assessing loss of future earning capacity is to compare the likely future income of the plaintiff if the accident had not occurred with the likely future income of the plaintiff now that it has occurred.  In addition, the overall fairness and reasonableness of the award must be taken into account:  Rosvold at ¶ 11.

[155]        Relevant contingencies for consideration may be general or specific in nature.  Such contingencies include, for example, the potential for improvement in health, opportunities for advancement, and the usual chances and hazards of life:  Djukic at ¶ 105.

[156]        Ms. Kuskis submits that she is partially disabled from working to full capacity by pain and exhaustion that is causally related to her injuries.  This partial disability, she says, will be long-standing, if not permanent, in nature.  She claims that, but for the accident, she would have continued to work as an operations manager for Uniglobe or a similar employer until age 65.  Assuming annual compensation valued, as of 2002, at $68,400, with normal earnings growth potential and discounted for labour market contingencies, the net present value of one third of her “without accident” income would be $335,000.  In Ms. Kuskis’ submission, this sum represents a fair and just assessment of her lost future income earning capacity.

[157]        The defendants submit that Ms. Kuskis has not suffered a loss of future income earning capacity.  They emphasize that she maintained full-time employment from the date of the accident through to June 2005, when she was terminated by Sabre for reasons unrelated to her injuries.  Since then, she has consistently demonstrated an ability to work hard at various jobs requiring both physical and mental exertion.  In addition, there is no reliable expert evidence that her ability to work has been compromised by her injuries.  In the circumstances, in their submission, no award under this head of damages should be made.

[158]        In the alternative, the defendants submit that if an award for future loss of earning capacity is to be made the economic evidence of Mr. Taunton presented on behalf of Ms. Kuskis is unhelpful.  This is so, in their submission, because it is based on several flawed assumptions.  For example, the annual income figure used by Mr. Taunton is inflated and significantly higher than what Ms. Kuskis actually earned when she left Uniglobe in 2003.  It also assumes, in the absence of evidence, that Ms. Kuskis would have enjoyed significant earnings growth had she stayed at Uniglobe.

[159]        It is abundantly clear that Ms. Kuskis was an exemplary employee when she worked for Uniglobe and Sabre.  Although she left Uniglobe voluntarily, given her lay off at Sabre and business failures, she now finds herself looking for a comparable job.  To date, she has been able to secure only contract work rather than full-time employment.  No evidence was provided by either party regarding the state of the labour market in the travel and hospitality industries at the present time.

[160]        According to Ms. Porter, whose evidence I accept, Ms. Kuskis’ considerable skills have remained intact since the accident, as have her work ethic and positive attitude.  She is, however, less able to complete the same high volume of computer-based work she could complete before the accident and it is sometimes obvious that she is exhausted.  In these circumstances, it is apparent that her earning capacity, viewed as a capital asset, has been impaired.  She is less capable overall of earning income from all types of employment and less attractive as a potential employee.

[161]        It is also apparent that, given the increase in her headaches, neck and shoulder pain and associated symptoms, Ms. Kuskis has, in recent years, been pushing herself to work beyond her reasonable limits.  Although she has managed well, and will likely continue to do so, I am satisfied that, in future, she will sensibly choose to slow down.  I find that, while she remains capable of working full time, her days of putting in 60 hour work weeks have likely come to an end.

[162]        Taking into account all of the evidence and relevant contingencies, including the prospect that Ms. Kuskis’ health will continue to improve and she will find another secure travel industry job quickly, I assess her loss of future earning capacity at $75,000.

Cost of Future Care

[163]        An award for the cost of future care is notional and imprecise in nature:  Strachan (Guardian ad Litem of) v. Reynolds, 2006 BCSC 362.  The court must consider evidence regarding what care is likely in the injured person’s best interest and calculate its present cost, with appropriate adjustment for contingencies in all of the circumstances of the case:  Courdin v. Meyers, 2005 BCCA 91.

[164]        In making an award for future care costs the court must take into account both what is medically required and what expenses the plaintiff will likely incur.  Items and services that the plaintiff is unlikely to use in the future cannot be justified as reasonably necessary aspects of the cost of future care:  Izony v. Weidlich, 2006 BCSC 1315.

[165]        Ms. Quastel made several recommendations for future care items and services for Ms. Kuskis.  They include:  a multi-disciplinary chronic pain management program; psychological counselling; botox injections; massage therapy; exercise; heavy housecleaning and gardening assistance; and home maintenance.  Her recommendations were generally supported by Dr. Dhawan.

[166]        As noted, Ms. Kuskis misreported her history to Ms. Quastel in several material respects.  As a result, I conclude that Ms. Quastel’s impression of her future care needs is erroneous and many of her recommendations are, in my view, unjustified.  For example, I am satisfied that Ms. Kuskis has not needed, and will not in future need, help with housecleaning, gardening or home maintenance.  I am also satisfied that she has maintained a reasonable level of fitness since the accident and will continue to do so in future.

[167]        As to botox injections, the evidence reveals that Ms. Kuskis received one botox injection from Dr. Dhawan but did not find it helpful in managing her headaches.  In these circumstances, an award for future injections is unjustified.  Similarly, it is clear that Ms. Kuskis has not received massage therapy for several years and does not intend to seek it out in future.  Accordingly, no award for the cost of massage therapy should be made.

[168]        Ms. Kuskis appeared, in her testimony, to be unaware of what would be involved in attending at a multi-disciplinary chronic pain management program.  I do not conclude from this, however, that such a service, if made available, would be unutilised.  On the contrary, given her compromised emotional state and current circumstances, I am satisfied that Ms. Kuskis would benefit from attending such a program and would likely do so given the opportunity.  According to Mr. Taunton, the present value of the cost of a chronic pain management program is $12,357.  As the program includes stress management, there is, in my view, no need for a further award for psychological counselling.

[169]        Taking into account all of the evidence, I award $12,357 for the cost of future care.

Special Damages

[170]        The parties agree that Ms. Kuskis is entitled to an award of $7,500 for special damages for expenses incurred for the past cost of care.  I accept that such an award is justified on the evidence.


[171]        In summary, the damages are as follows:

Non-pecuniary Loss

$  65,000.00

Past Income Loss


Loss of Future Earning Capacity


Cost of Future Care


Special Damages





“The Honourable Madam Justice Dickson”