Bjarnson v. Parks,


2009 BCSC 48

Date: 20090122
Docket: S062890
Registry: Vancouver


Gina Rosa Bjarnason



Laura Michel Parks and Hafizulla Sakhi


Before: The Honourable Madam Justice Ballance

Reasons for Judgment

Counsel for the Plaintiff:

E. Bond,
M. B. Rankin

Counsel for the Defendants:

R. V. Burns

Date and Place of Trial:

June 17,18, and 19, 2008


Vancouver, B.C.


[1]                The principle issue in this case is the quantum of damages to be awarded to the plaintiff in respect of injuries caused by a motor vehicle accident.  Liability has been admitted.


[2]                The plaintiff, Gina Fenwick (née: Bjarnason) is a French immersion elementary school teacher.  At the time of the accident, she was 28 years old.

[3]                On January 15, 2005 Ms. Fenwick was stopped at a red light when her vehicle was rear-ended by a vehicle driven by the defendant Sakhi.  The collision caused significant damage to Ms. Fenwick’s vehicle.  Ms. Fenwick testified that the impact felt like a violent force which caused her to lurch forward and then threw her back into her seat.  Later that day, her mid to upper back region, her neck and her shoulder areas began to stiffen.  By the next morning, pain in those areas had set in and she had a throbbing headache.  Simple movements, even getting out of bed, were an ordeal.

[4]                Ms. Fenwick saw her family physician, Dr. Mamacos, four days after the accident.  His two expert reports were in evidence and he testified at trial.  The evidence of the plaintiff and her physician establishes that initially after the accident, Ms. Fenwick suffered soft tissue injuries to both sides of her neck, her upper and mid-back and her upper trapezius region on both sides.  Pain and discomfort persisted for roughly six to eight weeks with considerable intensity.  She also suffered from splitting headaches.  They were constant at first but, over time, became intermittent and diminished in intensity.  Her headaches did not disappear entirely until five or six months after the accident.

[5]                Ms. Fenwick missed two weeks of work immediately after the accident in January 2005.  She gradually returned to work in February, working half-days.  According to her employment records in evidence, Ms. Fenwick missed a total of 57.5 hours of work in January and February 2005.  She claims that all of those missed hours were due to the injuries she sustained as a result of the accident.

[6]                Ms. Fenwick has been an athlete her entire life.  To use the vernacular, she is a jock.  She enjoys activities that are vigorous and physically demanding.  Prior to the accident, she regularly jogged, played field lacrosse competitively, danced with a Ukrainian dance group and participated in salsa dance.  She also coached some sports.

[7]                During the initial phase, Ms. Fenwick was unable to carry on with any of her sports or recreational pursuits.  On the advice of her family doctor, she began physiotherapy and attended twelve sessions between January and March 2005.  She complained to Dr. Mamacos that the physiotherapy at times aggravated her symptoms.  At trial, Dr. Mamacos explained that was not an uncommon reaction.

[8]                By around the end of February 2005, Ms. Fenwick had resumed playing field lacrosse once a week.  She gradually increased the frequency of her involvement to two practices and one game per week.  Around the same time, she returned to her Ukrainian dance class twice per week, for three hours each session.  Ms. Fenwick testified that she was not able to dance as “full out” as she had before the accident until about April 2005.  Ukrainian dance is her passion.  Fuelled by her desire not to disappoint her Ukranian dance troupe and mindful of the considerable time that she had already invested in readying herself to participate in a dance competition, she participated in a dance festival in June 2005.  Ms. Fenwick also resumed salsa dancing within about two months of the accident.    She testified that the dance movements actually loosened up her muscles and helped her feel better. 

[9]                Ms. Fenwick stated that sometime in March or April 2005, she took on a second type of lacrosse, called box lacrosse, as a new endeavour.  She acknowledged that box lacrosse is an intense contact game.  She testified, however, that for an athlete of her calibre, it did not take much physical exertion for her to participate in the box lacrosse league that she had joined.  

[10]            Ms. Fenwick agreed that within six to eight weeks after the accident, she was able to participate in lacrosse and dance to the fullest extent and as competitively as she wished.

[11]            At the time of the accident, Ms. Fenwick lived at home with her mother, Ms. Legebokoff.  Ms. Legebokoff testified that during the period immediately after the accident, her daughter appeared to be lethargic and depressed, and she lounged around home.  All of this was completely out of character for Ms. Fenwick.  Ms. Legebokoff testified that once her daughter resumed some of her physical activities, she perked up and seemed to improve mentally.  She described her daughter as a highly disciplined athlete who has a rather stoic nature and is not a complainer.  She supported her daughter’s evidence to the effect that she was a committed team player who would not take lightly to the notion of letting down other team members even when she was uncomfortable.  According to Ms. Legebokoff, her daughter did not participate as intensely in her recreational activities when she recommenced them after the accident.  She pointed out as well that her daughter was doing more coaching and choreography than physical participation.

[12]            According to Ms. Fenwick, even after she resumed her recreational pursuits, she continued to experience intermittent discomfort in her neck, her mid to upper back areas and across the top of her shoulders.  This made her feel irritable and run down, and bothered her generally.  She testified that a number of the movements related to her teaching job, such as prolonged sitting, bending over and leaning forward, working at her desk doing things such as marking her pupils’ work and preparing lesson plans, and attending staff meetings, routinely aggravated her symptoms.  She was not able to avoid these postures while at work.

[13]            Ms. Fenwick acknowledged that by approximately April, 2005, her enjoyment of participating in sports, other than running, and dance was no longer adversely affected by her injuries.  It took longer for her to feel sufficiently improved to resume running.

[14]            Before the accident, Ms. Fenwick had independently tutored two students.  The tutoring required her to sit next to her students for extended periods of time, which aggravated her discomfort.  She explained, and I accept, that there was no other tutor to fill in for her and that she felt guilt-ridden about letting down her students.  She therefore resumed tutoring sooner than she would have otherwise liked.

[15]            Throughout the first half of 2005, Ms. Fenwick used Advil regularly and applied ice packs daily.  She was also prescribed Tylenol 3 which she took occasionally.  She claims that between April 2005 and the end of the school term, she missed two and a half days of work due to her injuries.

[16]            Ms. Fenwick saw Dr. Mamacos at various times throughout January and February and on May 30, 2005.  He testified that at her visit on May 30 he was concerned that she continued to be symptomatic.  As a possible change of direction, he suggested that she “perhaps” attend the Karp Rehabilitation Centre (“Karp”).  She did not do so at that juncture.  She says that she felt some improvement in her discomfort for the time that she was out of the classroom during her 2005 summer break because she was able to avoid the work-related postures that she found particularly aggravating. 

[17]            When Ms. Fenwick returned to work in the fall of 2005, she was assigned to teach kindergarten for the first time.  I accept her evidence that she quickly found the kindergarten classroom setting to be especially aggravating because the desks and tables were so low.  She was required to be hunched over a good deal of the time.  Ms. Fenwick recalls that sitting in a low chair at circle time with the children was particularly aggravating and uncomfortable.  She continued to take Advil daily and regularly applied ice packs to help reduce inflammation, both at work and at home.

[18]            Ms. Fenwick returned to Dr. Mamacos on October 3, 2005.  She reported that her symptoms were ongoing and that they had been significantly aggravated that fall from work.  On examination, Dr. Mamacos made findings of neck discomfort with decreased rotation and lateral flexion, muscle tenderness, and spasms in her trapezius.  During this visit, Ms. Fenwick explained that she had not attended Karp because she felt that she had been improving and also because of the time constraints.  Dr. Mamacos suggested a referral to the Canadian Back Institute because it had more clinics that might dovetail more conveniently with Ms. Fenwick’s work schedule.

[19]            I accept Ms. Fenwick’s evidence that her symptoms worsened throughout November 2005.  She missed two days of work that month which she attributes to her soft tissue injuries.  She was also absent from work due to her injuries on December 9.  On that day, she returned to see Dr. Mamacos seeking a referral to Karp.

[20]            Ms. Fenwick enrolled in the Karp program around January 13, 2006.  She claims to have had a persistent flare-up of her symptoms in January 2006 which caused her to miss four and a half days of work.  She also missed one day in early February 2006.  I accept that all of these missed work days, and those claimed in 2005, were on account of discomfort from her injuries sustained in the accident.

[21]            At Karp, Ms. Fenwick was given a routine for daily stretches.  I accept that she followed that regime and incorporated exercises into her own home program, which she followed several times per week.  In February 2006, shortly after she began the program at Karp, the kindergarten teacher whose class Ms. Fenwick had been covering returned from maternity leave.  Ms. Fenwick accepted a one-day per week position with the Vancouver School Board; she also became a substitute teacher for the Coquitlam School Board, working between one to four days per week.  She did not return to teaching kindergarten.

[22]            She attended all fifteen of her recommended sessions at Karp through March 2006.

[23]            In cross-examination, Ms. Fenwick agreed that the active rehabilitation program at Karp had been successful and that by the end of March 2006, although her back pain was not gone entirely, her symptoms had improved significantly.  Ms. Fenwick credits her participation at Karp as improving her condition although not exclusively.  She also believes that not working full-time during that period and not teaching in a kindergarten classroom, where she would be required to assume extra-compromising positions, were beneficial factors to her recovery.  I accept all of these reasons as being legitimate factors at play in her improvement.

[24]            After the accident, Ms. Fenwick needed to buy a new car.  One happy outcome of the accident was that her future husband was working at the car dealership.  In the summer of 2006, Ms. Fenwick, her mother and her fiancé travelled to Russia for seven to eight weeks to learn Russian and explore the countryside.  She testified that while in Russia she was not pain free but she continued to keep physically strong.  Her mother testified that they were enrolled in a five-week language course in Russia and that her daughter complained about the prolonged classroom sitting.  I accept that Ms. Fenwick continued to do her stretches and exercises during this time to help minimize and control her discomfort.

[25]            Ms. Fenwick and her fiancé married later that summer.  She also participated in an eight kilometre run in August 2006 and in a ten kilometre run in November 2006.  She agreed that she was able to participate as vigorously as she liked in those events.

[26]            In the fall of 2006, Ms. Fenwick obtained a full-time position with the Coquitlam School Board.  Although she had improved considerably, Ms. Fenwick says that she still experienced episodic pain in her neck and mid to upper back and upper shoulder regions.  She used non-medicinal methods to try to manage the pain (such as ice, heat and lying down).  She felt that her improvement had plateaued, and that she was not 100% recovered.

[27]            Ms. Fenwick became pregnant in 2007.  She claims that her symptoms worsened dramatically during her second trimester of pregnancy which coincided with the commencement of the 2007 school year.  She testified that her back pain became just as intense as it had been before she attended Karp and, for a time, was similar to what she had experienced four to five months after the accident.  According to Ms. Fenwick, the pain worsened as she gained weight throughout the remainder of her pregnancy.  For the first time, she found that lying down did not reduce the strain and diminish the pain in her back.  Because of her pregnancy, she considered it prudent not to take Advil.  She used an ice pack frequently and had difficulty falling asleep due to pain.

[28]            Ms. Fenwick’s daughter was born on March 5, 2008.  At the time of trial, Ms. Fenwick was on a maternity leave.  Her baby daughter is rather fussy and insists on being carried most of the time.  Ms. Fenwick says that carrying her daughter typically aggravates her symptoms and that she can only carry her for a few minutes before the pain is too intense.  Ms. Fenwick testified that bending over the sink to wash the baby bottles and dishes has also been causing her occasional flare-ups.  Because she is nursing, she is not able to take Advil or other pain medication.

[29]            With the arrival of her daughter, Ms. Fenwick has not been able to find the time to do her stretching and strengthening exercises diligently.  She says that she would have to seek out child care in order to free up the time to do so during the day.  Presumably, her husband is home most evenings and one or both days of the weekend.  It was not explained why she does not do her regime at those times.

[30]            Dr. Mamacos has been a general practitioner for more than 30 years.  He encounters patients with soft tissue injuries as a matter of daily routine in his medical practice.  In his opinion, the accident caused Ms. Fenwick significant soft tissue symptoms.  He stated that as at November 2, 2005, she had made some progress, but she was not completely better.  He says that her symptoms were completely suggestive of a soft tissue injury involving the neck and upper back.  I accept that.  Referring to her position as a kindergarten teacher, he stated that her work required a fair amount of physical bending, which made her more susceptible to discomfort.  I find that to be accurate as well.

[31]            In Dr. Mamacos’ opinion, when he examined Ms. Fenwick on March 5, 2007,  she had made good progress although she still suffered from some residual symptoms.  His belief was that she had plateaued in her recovery and that she would continue to have periodic residual back and neck symptoms.

[32]            Dr. Mamacos also stated that Ms. Fenwick was at risk for relapse because she was an active person.  He said that a relapse would likely require intermittent intensive therapy.  In his view, her pregnancy had caused a serious relapse.  He agreed that back discomfort is a relatively common ailment in pregnant women.  However, he testified that Ms. Fenwick’s complaints of back pain while pregnant were not manifest in the place that pregnant women usually experience such pain.  His inference was that her back pain was related to the soft tissue injuries that she sustained in the accident.  I accept his evidence.  Dr. Mamacos referred Ms. Fenwick to massage therapy while she was pregnant to help alleviate her discomfort.  He also recommended that she purchase a Tens stimulator to help relieve back pain while pregnant.

[33]            In his first report, dated November 2, 2005, Dr. Mamacos wrote that during Ms. Fenwick’s visit on May 30, 2005 she stated that she was still doing physiotherapy and the stretches that it involved.  In his subsequent report dated March 29, 2007, Dr. Mamacos once again recorded that on May 30, 2005, Ms. Fenwick was attending physiotherapy but she was a little disappointed at her progress.  It was clear from Ms. Fenwick’s own evidence that by that date, she had discontinued physiotherapy but was regularly doing the stretches that she had been shown.  In cross-examination, Dr. Mamacos agreed that at this stage after the accident, he had assumed that Ms. Fenwick had been continuing with her physiotherapy.  When it was pointed out to him that Ms. Fenwick’s last physiotherapy treatment was on February 28, 2005, he testified that on occasion people get frustrated with physiotherapy.  He agreed however, that attending for only nine sessions of physiotherapy as opposed to making on-going visits continuing months later, would indicate that her injuries may be less severe.

[34]            The defendants argue that Dr. Mamacos based his opinion, in part, on his mistaken understanding about the amount of physiotherapy that Ms. Fenwick received and that, as a result, his opinion should be accorded little weight.  I cannot accede to that argument. 

[35]            Dr. Mamacos had other indications during the May 30 visit (eg. decreased rotation of her neck with pain on lateral flexion) and subsequently that Ms. Fenwick’s condition was not improving.  As well, he understood that she was continuing to follow her own stretching routine at that time, which is accurate.

[36]            In assessing the totality of Dr. Mamacos’ evidence, it is clear that his mistaken understanding about how long Ms. Fenwick attended physiotherapy was not a pivotal factor in arriving at his diagnosis or prognosis of her condition.  In my view, it does not compromise or otherwise devalue his opinion about the significance of Ms. Fenwick’s soft tissue injury and the likelihood of her susceptibility to flare-ups into the future.

[37]            Dr. Mamacos was not aware that Ms. Fenwick had returned to field lacrosse by the end of February 2005.  He agreed that an injured person’s involvement in activity can be a measurement of recovery.  However, he also clarified that “sports people” like Ms. Fenwick do physical things that others would not contemplate.  He said that he was not surprised that Ms. Fenwick had resumed dance and lacrosse soon after the acute phase of her injuries.  Upon learning that she had returned to these activities within six to eight weeks of the accident, Dr. Mamacos did not resile from his diagnosis of Ms. Fenwick, and I do not consider this point to establish a sound reason to accord less weight to Dr. Mamacos’ opinion.

[38]            As to enrollment in Karp, Dr. Mamacos agreed that generally once an individual had recovered from an acute pain phase of soft tissue injury, the sooner the person was able to participate in a rehabilitation program, the better.  He testified that Ms. Fenwick’s acute phase had come to an end approximately six to eight weeks after the accident and agreed that would have been a useful time for her to participate in the Karp program.  However, Dr. Mamacos also stated that he had some misgivings about the approach taken at Karp.  He criticized it for being a cookie-cutter program rather than customized to the needs of each patient.  He explained that for this reason attendance at Karp can be beneficial for some but not for others and, therefore, had not been overly enthusiastic about Ms. Fenwick attending Karp. 

[39]            I am not bothered by the fact that Dr. Mamacos did not write a note supporting Ms. Fenwick’s decision to take time off work on account of her injuries in January and February 2005 or in respect of the other work absences in 2005 or early 2006.  I accept Ms. Fenwick’s evidence that the 112.5 hours that she missed from work within that time frame, were due to the injuries caused by the accident.

[40]            I found Ms. Fenwick to be an extremely credible witness and a reliable historian about the nature and intensity of her post-accident symptoms and the effect of those symptoms on her life and work.

[41]            The defence called no evidence.


(a)        Non – Pecuniary Loss

[42]            Non-pecuniary damages are awarded to compensate a plaintiff’s pain, suffering and loss of enjoyment of life.  The fundamental principle, articulated in a variety of ways, is that fairness and reasonableness of the amount of an award is measured by the adverse impact of the particular injuries on the particular individual plaintiff.  Consequently, while fairness is assessed by reference to awards made in comparable cases, it is “impossible to develop a tariff”: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637, 129 D.L.R. (3d) 263.  In the end, each case is decided on its own unique facts: Kuskis v. Tin, 2008 BCSC 862, [Kuskis]; Noriega v. Lewars,.2008 BCSC 1405.

[43]            In Stapley v. Hejslet, 2006 BCCA 34, at para. 46, Kirkpatrick J.A. enumerated a non-exhaustive list of factors to be considered in awarding non-pecuniary damages.  They include: the plaintiff’s age; the nature of the injury; the severity and duration of the pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle.

[44]            The evidence establishes that as a result of the accident, Ms. Fenwick sustained soft tissue injuries to her neck, and her mid and upper back, her shoulder and her upper trapezius areas, and that those injuries caused her pain and discomfort, including headaches.  The acute phase of her injuries spanned for approximately six to eight weeks after the accident.  During that time, her pain was often intense and her headaches were severe and persistent, causing her to lounge around home in a rather depressed state.  Long after this initial phase, her symptoms were prone to being aggravated by her required posture and movements at work, such as prolonged sitting, bending and leaning forward.  They were severely and repeatedly aggravated during the time that she taught kindergarten in particular.

[45]            Ms. Fenwick is a lifelong athlete.  She was physically active and, I infer, in top physical condition, at the time of the accident.  She gradually returned to her former active lifestyle.  By approximately April 2005, she was fully engaged in her recreational pursuits except for running which she did not fully resume until considerably later.

[46]            There is no doubt that Ms. Fenwick’s symptoms have improved significantly; she candidly admits that to be the case.  Even though she was ultimately able to resume her sports and dance without physical impairment, I accept her evidence that her back and neck discomfort was not completely resolved when she did so.  I find that her injuries made her susceptible to flare-ups and continue to do so.  To date, the most intense of those flare-ups occurred during the latter two trimesters of her pregnancy, which essentially amounted to a full-blown relapse.  She has also experienced intermittent but chronic difficulty brought on by holding her baby daughter for more than brief intervals.  I find that will not get better as her daughter grows and becomes heavier.  I accept Ms. Fenwick’s evidence that she intends to have at least one more child, and quite possibly two.

[47]            Given the complexity of the non-bony human structure, and having no medical evidence to the contrary, I do not regard it as implausible or defying common sense that Ms. Fenwick was able to perform sports and dance without physical impairment or pain, and yet, at the same time, found that less physically intensive movement, including seemingly mundane postures, aggravated her soft tissue injuries.

[48]            The acute pain phase, the episodic aggravation of her symptoms and the relapse she suffered during pregnancy have caused Ms. Fenwick pain and suffering and have adversely affected her quality of life.  At the same time, it must be recognized that Ms. Fenwick’s enjoyment of her sporting and dance activities was diminished for a relatively short span of time overall.

[49]            That Ms. Fenwick has not been engaged in her exercise routine regularly since the birth of her daughter indicates that the episodic flare-ups that she experiences caused by carrying her baby daughter and leaning forward to wash bottles and the like, are neither severe nor long lasting.  As an athlete, she is highly attuned to the benefits of physical exercise.  I think that she would have found a way to adhere to an exercise regime had her symptoms been extremely uncomfortable and/or persistent.  The explanation offered by the plaintiff of not being able to find appropriate day care for an hour or so in order to have time to exercise, rings rather hollow. 

[50]            The defendants contend that Ms. Fenwick has failed to mitigate her damages by not enrolling at Karp when Dr. Mamacos initially recommended that she do so at the end of May 2005.  Approximately one month after Dr. Mamacos raised, as an option, the prospect of the plaintiff attending Karp, she commenced her summer holiday and was therefore not working for an extended period.  Her symptoms improved over the summer and she believed that she was recovering.  I find that to be a reasonable explanation for Ms. Fenwick’s decision not to pursue the Karp referral at that time.  When it became apparent to her in mid to late fall 2005 that her symptoms had not fully resolved and that she was regularly experiencing painful flare-ups, she returned to Dr. Mamacos for a referral to Karp in December.  She promptly enrolled in the program in mid January 2006.  There is no question that Ms. Fenwick’s participation in the Karp program assisted in her rehabilitation in a significant way.  I accept, however, that additional beneficial factors were also at play which served to enhance her improvement at that time.  Specifically, she was no longer teaching kindergarten and was no longer teaching on a regular full-time basis and therefore was not putting her body in the aggravating postures on a nearly daily basis.

[51]            I am not persuaded that the progress made by Ms. Fenwick after completing the Karp program would have necessarily been achieved had she participated in it while teaching kindergarten for the entire period.  More importantly, the evidence does not sufficiently indicate that had she undertaken the Karp program at any earlier stage, it would have ameliorated the symptom aggravation brought on in the kindergarten classroom setting in the fall of 2005, or prevented the occurrence or diminished the intensity of the relapse during her pregnancy, prevented her struggles in carrying her infant daughter, or made her overall physical condition today more superior and better able to withstand future flare-ups or periodic aggravation.

[52]            I find the defendants have not discharged their burden to prove a failure to mitigate loss on the part of Ms. Fenwick.

[53]            Ms. Fenwick seeks an award for non-pecuniary damages of between $35,000 and $50,000.  The defendants urge a far smaller sum of between $9,000 and $18,000 is appropriate.

[54]            In my opinion, a fair and reasonable award for Ms. Fenwick’s pain and suffering and her loss of enjoyment of life is $35,000.

(b)        Loss of Sick Leave Entitlement

[55]            Ms. Fenwick received continuation of her wages by drawing on her sick leave benefits.  She was paid for all of her work absences until her sick bank was depleted.  She seeks damages to reflect that depletion.  She also seeks reimbursement for past wage loss flowing from fifteen hours of missed work, captured in the 112.5 hours of absence for which she received no income continuation.  The aggregate amount of damages she seeks is the sum of $5,469.18 which is the product of the hours missed (112.5) multiplied by her hourly rate of pay of approximately $48.61.

[56]            This court has long recognized the loss of sick bank credits as a compensable loss (see generally: McCready v. Munroe (1965), 55 D.L.R. (2d) 338, 54 W.W.R. 65 (B.C.S.C.)).  In Lavigne v. Doucet (1976), 14 N.B.R (2d) 700 at para. 12 (C.A.), the New Brunswick Court of Appeal held that the depletion of a plaintiff’s accumulated sick leave arising from injuries suffered in an accident removed a benefit that he or she would otherwise have and, therefore, constitutes a genuine loss.  That conceptual approach was approved of by McLachlin J. (now the Chief Justice) in Ratych v. Bloomer, [1990] 1 S.C.R. 940 at 972, 69 D.L.R. (4th) 25:

I accept that if an employee can establish that he or she has suffered a loss in exchange for obtaining wages during the time he or she could not work, the employee should be compensated for that loss. Thus in Lavigne v. Doucet the New Brunswick Court of Appeal quite rightly allowed damages for loss of accumulated sick benefits.

[57]            Some years later the issue was revived before the Supreme Court of Canada in Cunningham v. Wheeler, [1994] 1 S.C.R. 359, 113 DLR (4th) 1, where Cory J. confirmed at 13 that an employee who uses sick leave in order to receive wages while off work and loses those sick day credits is entitled to receive compensation.

[58]            In Roberts v. Earthy, 1995 CanLII 1421 (B.C.S.C.) [Roberts], Clancy J. held at para. 8 that it was not necessary to adduce evidence showing that any consideration was paid by the plaintiff or negotiated on the plaintiff’s behalf through a collective agreement or other employment arrangement.  He did so on the basis that the accumulation of sick days is not related to what has come to be known as the insurance exception to the compensatory principle where such supporting evidence is generally required.

[59]            The case authorities do not appear to support a universal approach to the quantification of the loss flowing from the depletion of sick leave benefits.  For example, in Collins v. Ma, 1990 CanLII 1634 (B.C.S.C.), the court endorsed a contingency calculation being applied in order to take into consideration the likelihood of an employee drawing on the lost banked sick days in the future.  That approach was followed by the court in Olson v. Nixon, [1991] B.C.J. No. 155, 1991 CarswellBC 1346 (S.C.).

[60]            In Roberts, however, Clancy J. made no deduction for contingencies.  Likewise, more recently in Choromanski v. Malaspina University College, 2002 BCSC 771, the court rejected the defence argument that there should be a  reduction of the loss taken based on the plaintiff’s work history and the rate at which he had traditionally availed himself of his sick benefits. 

[61]            In my view, whether it is appropriate to make deductions for contingencies in quantifying the loss will depend upon the presence or absence of certain factors.  Those would include, for example, whether there is a maximum limit of accumulated sick leave, whether the plaintiff is able to cash out accumulated sick leave days on termination or retirement, whether the plaintiff has several years of employment remaining in which to potentially use the sick leave or has only a few months of employment left until retirement with a significant sick leave remaining, or whether the plaintiff has left the employment in which he earned the sick day credits altogether.  It cannot be predicted with any degree of certainty whether a person who is healthy today will be so tomorrow.  Illness or injury can afflict any one of us at any time.  Placing much if any reliance on the plaintiff’s past use of sick benefits strikes me as an unsound and potentially unfair approach because it fails to adequately protect a plaintiff against an unexpected serious or catastrophic illness in the future which could occur in any otherwise healthy plaintiff, or against a future injury, which, by its nature, is unpredictable.  In neither case would those future events necessarily be related to the plaintiff’s past use of sick benefits.

[62]            I accept that had Ms. Fenwick not used her sick leave credits, she would have been entitled to transfer them from her then employer, the Vancouver School Board, to her new employer, the Coquitlam School Board.  As well I am satisfied that, pursuant to her collective agreement, any monies awarded to Ms. Fenwick on account of lost sick days is repayable to her then employer in order to replenish her sick leave bank.  Beyond that, the evidence pertaining to the details of the portability of Ms. Fenwick’s sick day credits was not well developed.  I do not have cogent evidence as to whether there is a maximum number of sick days allowable, the formula for which she has earned them or whether she is able to cash them out on retirement or termination.

[63]            As best I can decipher from the evidence, the loss that Ms. Fenwick has sustained is a potential future loss in the sense that it would only be experienced if she has insufficient sick leave credits to adequately cover a future period of absence due to illness in respect of which she could have drawn upon the lost sick bank for income continuation.

[64]            Ms. Fenwick thoroughly exhausted her accumulated sick leave as a result of the accident.  She is a relatively young woman in the early stages of her career as a teacher.  I have found that she likely will experience flare-ups of her symptoms caused by this accident from time to time in the future which may require her to miss brief intervals of time from work.  She may also suffer from other illness or medical conditions in the future which will keep her from work. 

[65]            I am satisfied that fair and reasonable damages for this loss is compensation which reflects the actual hours Ms. Fenwick missed from work and used as sick time, multiplied by her approximate average hourly rate, without deduction.  To that, I would add her wage loss stemming from fifteen hours of unpaid absences attributable to her injuries.  The total damages amount to $5,469.18.

[66]            Ms. Fenwick’s counsel raised a concern about whether damages for Ms. Fenwick’s lost sick bank entitlement could be validly characterized as pre-trial earnings or income and thereby attract a deduction for income tax pursuant to sections 95 and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.  In my view, this kind of loss is not in the character of past wage loss.  Accordingly, there will be no deduction for income tax. 

(c)        Loss of Future Earning Capacity

[67]            Ms. Fenwick is seeking damages for diminished earning capacity in the future, which she attributes to the injuries suffered in the accident.  She contends that a reasonable sum would be equivalent to one-half of her annual salary, being approximately $25,000.  The defendants’ position is that the evidence does not support a conclusion that Ms. Fenwick’s work capacity has been diminished.  The defence notes that before she took her maternity leave, she was performing all of her teaching duties and that there is no evidence to suggest her performance was in any way substandard.

[68]            The issue here is whether Ms. Fenwick’s future earning capacity has been impaired or diminished by the injuries she sustained by the negligence of the defendants.  If it has, then it raises the companion issue of what amount, in light of all the evidence, should the Court award as compensation for that impairment.  Because this is a future loss, Ms. Fenwick need only prove the realistic or substantial possibility, as distinct from the probability, that owing to her injuries caused by the accident, her earning capacity has been impaired.  It has long been recognized that unknown contingencies and uncertain factors make it impossible to calculate lost future earning capacity with any precision.  The process of quantification in respect of any impairment is one of assessment based on the evidence, taking into account all relevant positive and negative contingencies:  Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158; Durand v. Bolt, 2007 BCSC 480, 71 B.C.L.R. (4th) 261. 

[69]            In Palmer v. Goodall (1991), 53 B.C.LR. (2d) 44 at 59 (C.A.), Southin J.A. made the following clarifying remarks in relation to the concept of future impairment:

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

[70]            In determining whether a plaintiff’s earning capacity has been impaired, the court will consider 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 (S.C.); Kuskis.

[71]            Ms. Fenwick is a young professional woman with many working years ahead.  While she may not endure pain daily or even regularly, her condition is nonetheless chronic and was caused by the accident.  She is susceptible to periodic flare-ups of her back discomfort into the foreseeable future and, according to Dr. Mamacos, is more vulnerable to suffering injury from what would otherwise be minor events or causes.  I accept that.

[72]            Dr. Mamacos is hopeful that Ms. Fenwick’s appreciation of her limitations will prevent a serious relapse.  Aside from the instance involving her pregnancy, the main activities that trigger flare-ups of her symptoms are seemingly innocuous movements such as carrying her infant daughter and postures related to her work as a teacher that are not tied exclusively to postures assumed in the kindergarten setting. In all probability, these would be seen as negative features to a prospective employer and would render Ms. Fenwick a less marketable and attractive employee.  There is also a realistic possibility that certain teaching avenues such as kindergarten and possibly even the early primary grades, as well as non-teaching positions that require prolonged sitting and other postures which Ms. Fenwick finds aggravating, have been foreclosed in part to Ms. Fenwick. 

[73]            The evidence indicates that Ms. Fenwick’s future earning capacity has been impaired by the injuries she suffered in the accident.  In my opinion, the degree of Ms. Fenwick’s diminishment is relatively modest, but exists nonetheless.

[74]            I consider it appropriate to use her annual salary as a reference point of sorts in assessing her damages.  In my opinion, an award of $20,000 is fair and reasonable.

(d)        Cost of Future Care

[75]            Ms. Fenwick is also advancing a claim for the cost of future care of between $3,000 to $5,000, to reflect her need for future therapy and therapeutic aids.  The defence submits that in all likelihood she will not require anything for future care.  Defence counsel points out that the last time she had anything akin to treatment was when she attended Karp more than two years ago.  The defence further argues that it will be difficult to attribute the need for any future treatment to the accident given Ms. Fenwick’s very active lifestyle.

[76]            In his expert reports and in the course of giving evidence, Dr. Mamacos advised of Ms. Fenwick’s need for future intermittent intensive therapy to combat and help her cope with symptom flare-ups.  He estimated that each flare-up would likely be associated with four to five visits to a physiotherapist and/or a kinesiologist.

[77]            I consider it more likely than not that Ms. Fenwick will sustain a financial loss into the future on account of therapy costs required as a result of the injuries caused by the accident.  I am satisfied also that it would be beneficial for her care to purchase the Dr. Ho Tens system, which was estimated to cost approximately $180.  However, in my view, the evidence offered in support of the future cost of a personal trainer for Ms. Fenwick was not adequately developed and cannot support an award.

[78]            On the totality of the evidence, I consider the sum of $2,000 to be fair and adequate damages for the cost of Ms. Fenwick’s future care.

(e)        Special Damages

[79]            Ms. Fenwick is entitled to the sum of $252 in special damages as claimed.

(f)        Costs

[80]            If the parties are unable to agree on costs, Ms. Fenwick’s counsel is at liberty to file written submissions within 60 days of these reasons.  Mr. Burns, for the defence, is to file his response within 45 days of receipt of those submissions.  Any reply submissions are to be filed 15 days thereafter.

“S. Ballance J.”
The Honourable Madam Justice Ballance