



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Quigley v. Cymbalisty,









2021 BCCA 33




Date: 20210126

Dockets:
CA46555; CA46556; CA46557

Docket: CA46555

Between:

Robyn Kathleen
Quigley

Appellant

(Plaintiff)

And

Eugenie Cymbalisty

Respondent

(Defendant)

- and -

Docket: CA46556

Between:

Robyn Kathleen
Quigley

Appellant

(Plaintiff)

And

Wanda Jonsen

Respondent

(Defendant)

- and -

Docket: CA46557

Between:

Robyn Kathleen
Quigley

Appellant

(Plaintiff)

And

Jessica Johanson

Respondent

(Defendant)




Before:



The Honourable Madam Justice Fenlon

The Honourable Mr. Justice Hunter

The Honourable Mr. Justice Butler




On appeal from:  An
order of the Supreme Court of British Columbia, dated
November 5, 2019 (
Quigley v. Jonsen
, 2019 BCSC 1812, Nanaimo Dockets M76543;
M74318; M75819).




Counsel for the Appellant:



G. Cameron

C.R. Phillips





Counsel for the Respondents:



G. Ritchey





Place and Date of Hearing:



Vancouver, British
  Columbia

September 24, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

January 26, 2021









Written Reasons by:





The Honourable Mr. Justice Butler





Concurred in by:





The Honourable Madam Justice Fenlon

The Honourable Mr. Justice Hunter








Summary:

The appellant was injured in
three motor vehicle collisions. She appeals the judges damages awards for her
future loss of earning capacity and the cost of future care, alleging that the
judge erred in applying the relevant legal tests and in misapprehending or
ignoring the evidence. Held: Appeal dismissed. The judges conclusions on the
appellants future loss of earning capacity were reasonably supported by the
evidence and were made in accordance with the applicable legal principles. It
is not the Courts role to reweigh the evidence on appeal. Similarly, the judge
did not err in his assessment of the cost of future care but rather used the
available evidence to determine an award that was medically justified and
reasonable in the circumstances.

Reasons for Judgment of the Honourable
Mr. Justice Butler:

Introduction

[1]

The appellant, Robyn Quigley, was injured in three low velocity motor
vehicle collisions that occurred in December 2012, June 2013, and March 2014.
Her actions against the defendant drivers were heard at the same time.
Liability was admitted by the defendants, as was the fact that, at the time of
trial, the appellant continued to suffer from the effects of the physical and
psychological injuries sustained in those accidents. The sole issue at trial
was the quantum of damages.

[2]

In reasons indexed as 2019 BCSC 1812 (the Reasons), the trial judge
awarded Ms. Quigley damages of $381,503, including $150,000 for future
loss of earning capacity and $64,558 for the cost of future care. Ms. Quigley
appeals the two future loss awards, arguing the judge failed to properly apply
the tests for loss of future earning capacity and cost of future care despite
making favourable findings of fact. She also argues that the judge
misapprehended, misconceived, or ignored evidence in determining the cost of
future care award.

[3]

The respondents submit the judge made no errors in determining the
amounts to award for those heads of damage. They say the appellants arguments
attack the findings of fact made by the trial judge but that she is unable to
identify any palpable and overriding errors that would warrant interference on
appeal. In particular, the respondents submit that the judges inferences of
fact were reasonably supported by the evidence available to him.

[4]

For the reasons that follow, I would dismiss the appeal.

Reasons

[5]

The appellant is an artist and art teacher. She has two university
degrees in fine arts, including a Master of Fine Arts and has had a number of
exhibitions of her work. She was married in 2000 and moved to Nanaimo in 2002.
After the birth of her son in 2006, she started a small business providing
private and group art lessons. From its inception in 2009, the business
returned a profit. She continued to operate the business after the collisions
and up to the date of trial: Reasons at paras. 13, 1014.

[6]

The judge found that Ms. Quigley was physically and emotionally
healthy prior to the motor vehicle accidents (MVAs). He found her to be a
credible witness with an effervescent personality and a gift for relating to
her students: Reasons at para. 8. The appellant was passionate about the
business and the judge described its significance to her:

[15]      The profits from the
business may have been less than handsome, but it is clear that an important
return for Ms. Quigley is the sense of satisfaction she gets from spurring
her students creativity. She also derives real pleasure from the bond she
forms with her students. She has taught many students in the past ten years,
and her husband described walking around Nanaimo with her is like being in the
company of a rock star. Ms. Quigley testified that she enjoys this
recognition of her teaching efforts.

[7]

The judge was also persuaded that at the time of trial, the appellant
continued to suffer pain. The respondents did not question the appellants
credibility and the judge found that she had gone the extra mile to mitigate
her losses. He found that the appellant had doggedly carried on with the
business notwithstanding persistent pain. Nevertheless, the judge accepted the
respondents position that when assessing damages he should be cautious about
taking too much from her demeanour in the witness box and should not lose
sight of the fact that [the appellant] is capable of projecting positivity
and upbeat energy: Reasons at paras. 1719.

[8]

The judge noted that there was little controversy in the medical opinion
evidence about the appellants injuries and the extent of her disability. She
suffered a whiplash disorder with cervicogenic headaches, soft tissue injury
to her upper thoracic area, and anxious mood. While there had been some
improvement, Ms. Quigley has chronic pain due to musculoskeletal and
soft-tissue-type-injuries. The judge accepted the psychiatric diagnosis that
the appellant suffered an adjustment disorder with chronic anxiety, and
somatic symptom disorder. The judge also accepted the prognosis from the
expert physiatrist that [i]t is likely [the appellant] will remain
symptomatic with chronic pain and some limitation as a result.  [T]he chances
of complete resolution of symptoms where she would return to a point of being
symptom-free are quite slim.: Reasons at paras. 2024.

[9]

In addition, the judge accepted the evidence from a treating
psychological counsellor who noted recent improvement in the appellants
condition saying she is better able to manage her pain and anxiety. Her
self-esteem and confidence are building, and she is happier and less tearful.
The psychologist predicted that the appellant would make further progress in
recovering from her emotional injuries: Reasons at para. 26. The judge
concluded his assessment of the extent of the appellants injuries as follows:

[27]      I think it likely that Ms. Quigley
will continue to make some modest progress, both physically and emotionally,
and the elimination of the anxiety associated with this litigation will help
that improvement process. However, notwithstanding the prospect of some
improvement, the damages assessment must account for the likelihood of the
continuation of a significant level of pain with the attendant need to modify
her work and home life, and account for the risk of physical and emotional
relapses.

[10]

The judge then returned to the issue of mitigation, noting that broadly,
the defendants have little cause for complaint about [the appellants] efforts
to minimize her losses. However, the defendants did argue that the appellant
ought to have purchased $15,440 of ergonomic equipment recommended by an
occupational therapist: Reasons at paras. 2829. All of the medical
experts and the appellant herself were of the view that the equipment would be
of assistance to her. However, the judge found that the appellant had been
unable to purchase the equipment because of her impecuniosity; going further in
debt to acquire the expensive ergonomic equipment was not a realistic option.
Accordingly, he rejected the mitigation argument and found that the plaintiff
had acted reasonably: Reasons at paras. 3235.

[11]

The judge then considered non-pecuniary damages and past loss of earning
capacity. He recognized that the appellant identified as an artist, teacher,
businessperson, mother, and spouse and that having to endure pain from the
injuries suffered in the MVAs had a significant impact on her ability to fulfil
and enjoy those roles. He awarded $110,000 for non-pecuniary damages. This
included a slight upward adjustment for impairment of her housekeeping
capacity. He also awarded a net past income loss of $33,000: Reasons at paras. 41,
51, 73. Neither of those awards are challenged on appeal.

[12]

On future loss of earning capacity, the judge set out the earnings and
capital asset approaches to quantifying the appellants loss and referred to
the leading authorities in this province. The judge found that the appellant
wanted to continue her business and concluded that she would be able to do so,
but at a reduced capacity. He awarded damages for that future loss of capacity
on the basis that she would continue the business but would not be able to work
to the same level as she would have but for the accident. He estimated that the
diminishment in her capacity would result in an annual loss of income of
approximately $6,000 in relation to her business and $1,000 for lost art sales.
He applied the $7,000 annual loss and a multiplier of 17 to age 70. This
produced a loss of capacity of $120,000, which he then adjusted upwards to take
into account various contingencies, including pain flare-ups and other
setbacks. He concluded that $150,000 was a fair and reasonable measure of the
diminishment of the appellants future earning capacity: Reasons at paras. 5260.

[13]

Lastly, the judge considered each of the appellants claims for costs of
future care. These included various therapy expenses, medications,
housecleaning services and the cost of the ergonomic equipment. He awarded a
total of $64,558 for that head of damage: Reasons at para. 75. Added to
the $110,000 for non-pecuniary damages, $33,000 for past loss of earning
capacity, $150,000 for future loss of earning capacity, and $23,945 in special
damages, the judge awarded Ms. Quigley a total of $381,503.

Grounds of Appeal

[14]

The appellant argues the judge erred:

1.

In failing
to properly apply the test for future loss of earning capacity, thereby coming
to erroneous conclusions on this head of damages; and

2.

In failing
to properly apply the test for determining the cost of future care awards, and
in misapprehending, misconceiving, or ignoring material evidence regarding
future care costs, thereby coming to erroneous conclusions.

[15]

I will consider each ground of appeal in turn.

Future Loss of Earning Capacity

Appellants Position

[16]

The appellant says the judge appropriately recognized that the evidence
established a real and substantial possibility she would suffer a future loss
of earning capacity. However, she says the judge failed to properly apply the
principles governing assessment of loss of earning capacity to his findings of
fact about the appellants circumstances. Instead of assessing her loss by
examining factors that would demonstrate the magnitude of her loss, such as the
impairment of her ability to work to full capacity and grow the business, the
judge applied a flawed replacement cost analysis. The appellant says the
failure to apply the proper principles is an error of law which resulted in an
award that significantly undercompensated her future loss. However, the
appellant says that even on the judges flawed methodology, the award he
calculated was significantly lower than the replacement cost expense he
intended to compensate.

[17]

The appellant submits that in arriving at his conclusion about the
appellants future loss of capacity, the judge must have ignored or failed to
take into account evidence that he purportedly accepted. This includes the fact
that the appellant had to sacrifice her personal and home life to keep the
business operating; her specific involvement in the business as pivotal to its
success; its trajectory of growth; and the real possibility that her business
could fail, forcing her to access a job market in which her ability to succeed
would be impaired. Further, she says the judges conclusion that her symptoms
would likely improve is divorced from the medical evidence that the judge
accepted.

Respondents Position

[18]

The respondents say that the judges findings of fact are reasonably
supported by the evidence and provide a proper basis for the award of future
loss of capacity. The respondents stress that inferences drawn about
hypothetical future events are fundamentally different from findings of fact
about past events. The respondents note the high level of deference to be
afforded to inferences drawn by a trial judge about future hypotheticals so
long as they are reasonably supported by the evidence. In this case, there was
a significant body of medical and other evidence about matters relevant to the
appellants future symptoms and her ability to work. The respondents submit
that the appellant is asking this Court to do that which it cannot do: reweigh
the evidence in order to draw alternate inferences from those drawn by the
judge.

[19]

In addition, the respondents submit that the appellant failed to present
evidence to support any different analysis than the one undertaken by the
judge. They say the appellant failed to provide useful or relevant evidence
that the judge could have used to assess the economic impact her injuries might
have on her ability to earn income in the future. This failure makes her
arguments largely theoretical or speculative and say they do not lend support
for the argument that the judge erred in principle. On the contrary, they say
the judge considered and weighed the available evidence and did the best he
could where the evidence was lacking.

Standard of Review

[20]

A failure to apply the governing legal principles attracts the standard
of review of correctness. The standard of review applicable to findings of fact
and inferences drawn from facts directly proven is palpable and overriding
error. However, where an erroneous finding of the trial judge can be traced to
an error in characterization of the legal standard, then the correctness standard
of review is applied:
Housen v. Nikolaisen
, 2002 SCC 33 at paras. 810,
27, 3133.

[21]

As this ground of appeal is concerned with inferences about future
hypothetical events, the correct approach for an appellate court is to
determine whether the inferences drawn by the trial judge are reasonably
supported by the evidence. If so, there is no palpable and overriding error and
it is not for the reviewing court to interfere or reweigh the evidence. In
H.L.
v. Canada (Attorney General)
, 2005 SCC 25, Justice Fish, for the
majority, stated:

74        I would explain the matter this way. Not
infrequently,
different
inferences may reasonably be drawn from facts
found by the trial judge to have been directly proven. Appellate scrutiny
determines whether inferences drawn by the judge are reasonably supported by
the evidence. If they are, the reviewing court cannot
reweigh the evidence
by substituting, for the reasonable inference preferred by the trial judge, an
equally  or even more  persuasive inference of its own. This fundamental rule
is, once again, entirely consistent with both the majority and the minority
reasons in
Housen.

[Emphasis in original.]

Analysis

[22]

As I will explain, I am of the view that the appellant is not able to
show that the judge erred in his application of the relevant legal principles.
Rather, she is inviting this Court to reweigh the evidence and substitute its
own inferences about her future loss of earning capacity. I find that the
inferences drawn by the judge are reasonably supported by the evidence.

[23]

While the judges review of the applicable principles and his analysis
of the appellants claim was stated succinctly, it was based on his thorough
review of the evidence and is responsive to the arguments advanced at trial.

[24]

The appellant does not dispute the judges summary of the applicable
legal principles at para. 53. The judge acknowledged the two approaches to
future loss assessmentthe earnings approach and the capital asset
approachand that his task was to make a fair and reasonable award by weighing
the real and substantial possibilities of loss according to their relative
likelihood. He also recognized the need to make allowance for the possibility
that the assumptions upon which the award is based may be wrong.

[25]

After explaining the general approach, the judge turned to the
appellants argument that she was entitled to be compensated as if she were
intent on maximizing the financial returns from her capital asseteven though
she may not have done so in the past. I note that this is similar to the
argument advanced on appeal. At trial, in support of this argument, the
appellant pointed to evidence that she said should have led to favourable
answers to the four factors set out in
Brown v. Golaiy
(1985), 26
B.C.L.R. (3d) 353. The judge rejected the argument, stating:

[54]      This argument is not tenable in the aftermath of
the judgment of McLachlin C.J.C. in
M.B. v. British Columbia
, 2003 SCC
53

at para. 50:

These damages are not ... based on
a fixed value that has been assigned to an abstract capacity to earn. Rather,
the value of a particular plaintiffs capacity to earn is equivalent to the
value of the earnings that she ... would have received over time, had the tort
not been committed.

This approach dovetails with instructions from our Court of
Appeal indicating that
the essential analysis is comparing the plaintiffs
working life if the accidents had not happened with her working life after the
MVAs, and then give consideration to the overall fairness and reasonableness of
the assessment taking account of all of the evidence
:
Rosvold v. Dunlop
,
2001 BCCA 1 at para. 11;
Gregory v. Insurance Corporation of
British Columbia
, 2011 BCCA 144

at para. 32.

[Emphasis
added.]

[26]

The judge determined that the assessment should not focus on the
appellants theoretical capacity, that is, economic evidence showing the
average earnings of a person of similar age with a Masters degree in Fine Arts.
This statistics-based evidence might be valuable if the appellant had been
unsettled in her career choice or if she were unable to carry on with the
business, which was not the case: Reasons at para. 55. Rather, the judge
held that the focus of the assessment should be on the appellant and her
particular circumstances, noting that her singular goal was to establish the
art school business. Not only had she done so, but she had been able to
continue the business in the years leading up to trial. He found that she
derived important non-monetary returns from the work and that making money was
never at the core of why she established her business or why she carried on
after the MVAs despite her pain: Reasons at para. 56.

[27]

The judges key conclusion is that the appellant would be able to continue
to operate the business and would seek to do so after the MVAs, albeit at a
reduced capacity. The judge explained this significant inference as follows:

[57]

But
for the MVAs, I am certain she would have continued to operate her business
indefinitely.
The
medical evidence
and her own track record establishes that she is able to continue in her
business notwithstanding her injuries, although she has to make accommodations
for herself.
I think it is highly unlikely that she will choose to shut down
her business, or otherwise be in a position of having to access the labour
market
. It is not irrelevant to the assessment that she is less capable
overall from earning income from all types of employment, or is less marketable
or attractive as an employee to potential employers, or has lost the ability to
take advantage of all job opportunities that might have been open to her if she
was not injured, or is less able to earn income in a competitive labour market.
However, I am assessing damages for this plaintiff and I must take into
account that it is highly unlikely, with or without the MVAs, that she would
explore employment options outside of her business. In these circumstances, the
primary focus of the assessment must be on the effect of her injuries on her
capacity to produce income from her business
.

[Emphasis added.]

[28]

Having identified the focus of the assessment, the judge used his
assessment of the appellants past loss of capacity as the starting point of
his analysis. The appellant criticizes this approach, saying that the judge
used a replacement cost analysis that failed to consider the appellants loss
of capacity. I disagree. It is important to note that the judge considered, and
accepted, the appellants position regarding her claim for past loss of income,
which was presented as a claim for past loss of earning capacity. That claim
had three parts: (1) reimbursement for the expense of hiring employees she
would not have hired but for her injuries; (2) loss of revenue to the business
because of her impaired capacity for teaching; and (3) loss of ability to
create and sell her own art. The appellant quantified that claim (before
consideration of income tax) at $37,485. The judge awarded $39,000, adjusted to
$33,000 after accounting for income tax: Reasons at para. 51. In doing so,
the judge accepted the appellants submission (made in response to the
respondents argument that the judge should draw an adverse inference from the
failure to call employees) that the evidence establishes that the plaintiff
was able to substantially mitigate her financial losses through the steps
taken to teach fewer hours and hire additional employees: Reasons at para. 48.

[29]

In accepting the appellants submissions on how to quantify the past
loss, the judge considered but did not attempt a reduced profits analysis to
guide the assessment of future loss because of the lack of evidence:

[49]
I conclude that there are too many variables and
too many unknowns to attempt a reduced profits analysis
. Despite the MVAs, Ms. Quigley
earned more money from the business than she did before the MVAs, and her
business continues to grow. At the time of the MVAs she was still in the fairly
early stages of establishing her business,
and it would be guesswork to try
to compare the actual returns against what she might have achieved but for the
MVAs
.

[Emphasis added.]

[30]

Having found that the appellant would continue to operate her business
in the future, and without any other evidentiary basis on which to assess her
future loss, it was reasonable for the judge to use his assessment of her past
loss of capacity as the starting point for the future loss assessment. The
judge reasoned:

[58]      I think an appropriate
starting point of the analysis is what I have found to be an average annual
loss of capacity since the third MVA of approximately $7000  $6000 in relation
to her business and about $1000 for lost art sales. I adopt a multiplier of 17
to age 70, based on the labour market statistics applicable to persons with a
masters degree, increased somewhat to account for my impression that Ms. Quigley
is a person with a greater than average inclination to remained employed. It
makes sense to use the multiplier to age 70 because the multiplier is derived
using labour market participation rates, so the multiplier reflects the fact
that it is unlikely that people in this statistical cohort will still be
working at age 70. A starting figure of approximately $120,000 for the loss of
capacity is the product of a $7000 annual loss and a multiplier of 17.

[31]

The judge then adjusted the $120,000 starting figure upwards to account
for the possibility of future flare-ups and setbacks, a shorter career than she
might otherwise have enjoyed, and the slight chance that she might have chosen
to alter her career path. He also took into account the possibility that she
could experience improvements in her condition and the likelihood that the
ergonomic equipment would assist her. He acknowledged that the assessment was
difficult but concluded that $150,000 is a fair and reasonable measure of the
diminishment of Ms. Quigleys future earning capacity: Reasons at para. 60.

[32]

I see no error in the judges analysis. Indeed, the appellant has not
identified any error in principle other than to argue that the judge arrived at
an award on a replacement costs basis. The appellants argument is based on
the proposition that the judges approach was limited and flawed because he
considered only the cost of hiring additional teachers to replace the work that
might have been done by the appellant. That is a misreading of the judges
reasons. He did not restrict his analysis in that way. He took into account the
various components of her financial loss based on the evidence presented and
the appellants arguments on loss of capacity. These included the cost of
hiring additional teachers, loss of revenue to the business because of the
appellants impaired capacity for teaching, and the loss of the ability to
create and sell her own art. The judge determined that this was the fairest
approach for valuing her loss of capacity based on the evidence before him.
Further, the assessment had to take into account the judges conclusion that
she was going to continue to operate the business as she would have done but
for the injuries.

[33]

As the respondents argue, the appellants approach to her loss of
capacity is theoretical in that there is an absence of evidence that could
demonstrate the economic impact of her injuries and reduced capacity. As
Justice Savage observed in
Gao v. Dietrich
, 2018 BCCA 372, the capital
asset approach can be appropriate where it is difficult to quantify a loss, but
the approach is not a panacea for situations where what could have been
proven, or at least given some evidentiary foundation, was not proven or given
an evidentiary foundation: at para. 62. Here, the judge used the
available evidence as the foundation for his assessment of the appellants
loss.

[34]

The appellants complaint about a replacement cost approach suggests
that the judge inappropriately performed a calculation rather than undertaking
an assessment, contrary to the directions given by this Court in
Schenker v.
Scott
, 2014 BCCA 203 at paras. 5053, and
Jurczak v. Mauro
,
2013 BCCA 507 at paras. 3536. I disagree. The judge identified the proper
approach at para. 53: a loss of capacity award should be assessed, not
calculated, and economic analysis and arithmetic assistance ought to be used to
help frame the award. That is precisely what the judge did. He determined an
approximate annual loss of capacity, taking into account the appellants past
experience, and used that as a starting figure for loss of capacity. He
applied a multiplier of 17 to age 70, based on expert economic evidence and
factors particular to the appellant. He then identified and weighed positive
and negative contingencies based on the evidence and adjusted the starting
figure upward by 25%. The judges reasons clearly show that he
assessed
the appellants loss of capacity taking into account the evidence and the
arguments at trial.

[35]

The appellant argues that the judges approach ignored evidence that the
appellant had the capacity to teach at least 28 hours per week. I do not agree.
The appellant is asking this Court to reweigh the evidence about the
appellants capacity to work based on a single piece of evidence about one week
in 2012, her busiest ever week, when the appellant taught for 28 hours. As the
respondents note, the evidence about the appellants pattern of work was not
extensive. However, it is clear that she was required to perform a wide variety
of tasks to operate the business in addition to teaching. The respondents
concede that in 2012, the appellant taught 22 hours per week on average. In
2019, after the MVAs, the evidence also shows that she was able to teach an
average of 12.5 hours per week. The difference between these figures is nine-and-a-half
hours, which is very close to the eight hours used by the judge as the amount
of teaching time to be replaced. Taking into account the judges conclusion
that it was likely the appellants condition would show a modest improvement,
the judges use of eight hours as the amount of replacement teaching required
per week was reasonably supported by the evidence.

[36]

The appellant argues that the judges conclusion that the plaintiffs
condition would improve is divorced from the medical evidence that the judge
purported to accept. She says the only physical evidence referred to by the
judge was Dr. Zakis finding that the appellant showed less muscular
tenderness and an improvement in range of motion. However, that is not an
accurate characterization of the judges reasoning. The judge referred to the
medical evidence in some detail and, as I have indicated, accepted Dr. Zakis
conclusion that it was likely the appellant would remain symptomatic with
chronic pain and some limitation. He did not ignore the medical evidence, but
concluded on all of the evidence that it was likely the appellants condition
would improve. That evidence included, in addition to Dr. Zakis physical
evidence:

·

Dr. Beattie, the treating psychological counsellor, noted
improvement in the appellants ability to manage her pain and anxiety and
predicted further progress (Reasons at para. 26);

·

The appellants husband and mother reported recent improvements
to her condition as a result of her sessions with Dr. Beattie (Reasons at para. 26);

·

Dr. Ancill opined that if the appellant underwent successful
treatment for anxiety, headaches and pain, she would experience symptomatic
improvement (Reasons at para. 25);

·

Dr. Thompson agreed that there was room for improvement in
the appellants condition with a consistent level of exercise and the benefit
of psychological counselling;

·

All of the medical experts were of the view that the ergonomic
equipment (which the judge allowed for in the cost of future care award to
enable her to afford its purchase) would be of assistance to the appellant; and

·

The judges view that the elimination of the anxiety caused by
the litigation would improve her condition (Reasons at para. 27).

Taken together, there was a sufficient body of evidence on
which the judge could (and did) rely to infer that it was likely the
appellants condition and capacity to work would improve. Of course, the judge
heard the witnesses and was in the best position to weigh their evidence.

[37]

The appellant identifies four specific factors that she says the judge
failed to consider:

a)

the impairment
to her capital asset as owner and operator of the art school and the pivotal
importance of her contributions to that business;

b)

the trajectory
of the business, including that it was only three years old when the first
accident occurred;

c)

the fact
that her contributions to the business could not simply be replaced by others
and that without her full energies the business would not thrive; and

d)

the real and
substantial possibility that the business would fail and that she would be
forced to access the job market.

[38]

The suggestion that the judge failed to consider the last of these
factors is not supportable. There was no evidence to support the proposition
that the business might fail. Further, the judge specifically took into account
the possibility that the appellant might have chosen to shut down the business
or otherwise have to access the labour market, though he found it highly unlikely,
with or without the MVAs, that she would explore employment options outside of
her business: Reasons at para. 57.

[39]

The first three of these alleged failures involve consideration of
factors that were clearly before the court on the evidence at trial. It is
clear from the Reasons that the judge identified each of these factors and took
them into account in assessing damages. For example, the judges assessment of
the past loss of capacity, as described at para. 50, is based on his
finding that the appellant could not work to full capacity. The same assumption
was carried through to his future loss assessment: at para. 58. Further,
throughout the Reasons the judge acknowledged the appellants abilities as a
teacher and manager of the business: see paras. 28, 57.

[40]

The judge also set out in some detail the history and trajectory of the
business. He clearly acknowledged that the appellant was the schools driving
force. The appellants suggestion that the judge failed to consider these
factors is without merit. The appellant is not able to demonstrate a failure to
consider the evidence and relevant factors. Her real argument is that the judge
should have drawn a different inference about the appellants future loss of
capacity. However, where the inferences drawn were reasonably supported by the
evidence, and in the absence of an error in principle, it is not this Courts
role to reweigh the evidence or draw different inferences on appeal.

[41]

In summary, I would not give effect to this ground of appeal. The judge
examined the available evidence and performed an assessment of the appellants
loss of capacity in accordance with the applicable principles. His conclusions
were reasonably supported by the evidence and I find no palpable and overriding
error to warrant interference on appeal.

Cost of Future Care

[42]

The parties do not dispute the legal principles used by the trial judge
to assess the cost of future care but disagree on their application.

[43]

The purpose of the award for costs of future care is to restore the
injured party to the position she would have been in had the accident not
occurred:
Andrews v. Grand & Toy Alberta Ltd.
(1978), 83 D.L.R. (3d)
452 (S.C.C.) at p. 462;
Gignac v. Insurance Corporation of British
Columbia
, 2012 BCCA 351 at para. 29. This is based on what is
reasonably necessary on the medical evidence to promote the mental and physical
health of the plaintiff:
Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33,
adopted in
Aberdeen v. Zanatta
, 2008 BCCA 420 at para. 41.

[44]

It is not necessary that a physician testify to the medical necessity of
each item of care for which a claim is advanced. However, an award for future care
must have medical justification and be reasonable:
Aberdeen
at para. 42;
Gao
at para. 69.

[45]

In
Lines v. W & D Logging Co. Ltd.
, 2009 BCCA 106, Justice
Saunders described the correct approach to appellate review of cost of future
care awards:

[9]        ... Thus it was stated some time ago, in a passage
that has equal force today, in
Nance v. British Columbia Electric Railway
Company Ld.
, [1951] A.C. 601 at 613-14, [1951] 3 D.L.R. 705 (P.C.):

... Whether the assessment of
damages be by a judge or a jury, the appellate court is not justified in
substituting a figure of its own for that awarded below simply because it would
have awarded a different figure if it had tried the case at first instance.
Even if the tribunal of first instance was a judge sitting alone, then, before
the appellate court can properly intervene, it must be
satisfied either that
the judge, in assessing the damages, applied a wrong principle of law (as by
taking into account some irrelevant factor or leaving out of account some
relevant one); or, short of this, that the amount awarded is either so
inordinately low or so inordinately high that it must be a wholly erroneous
estimate of the damage
.

[10]      On questions of law or principle, the question for
this Court is correctness. However, where the question is one of mixed fact and
law, as explained in
Housen v. Nikolaisen
, the deferential standard
applies.

[Emphasis added.]

[46]

It is not open for this Court to substitute a figure of its own simply
because it would have awarded a different figure if it had tried the case at
first instance. Rather, the judges assessment of damages may only be
overturned if there was no evidence on which he could have reached his
conclusion, if he proceeded on an incorrect principle of law, or if the result
reached was a wholly erroneous estimate of the damage:
Gignac
at para. 19;
Kim v. Lin
, 2018 BCCA 77 at para. 40.

Analysis

[47]

At trial, the appellant sought a $200,000 award for cost of future care.
The respondents submitted that $32,000 would be appropriate. The judge awarded
$64,558, and made a slight upward adjustment to the non-pecuniary damages award
for impairment of the appellants housekeeping capacity.

[48]

The appellant submits that the judge made three errors in assessing this
head of damages: (1) first, by holding that future care costs (specifically,
massage) should be paid out of non-pecuniary damages; (2) second, by finding
that Ms. Quigley was likely to improve, which limited the amount of time
for which certain items of care were awarded (including massage and
medication); and (3) in his appreciation of the evidence regarding massage
therapy, medication, and housekeeping capacity.

[49]

The respondents submit that the medical evidence provided little
guidance as to the frequency or duration of various recommended treatment,
specifically with respect to massage therapy, medications, and Botox. As such,
the judge used what evidence was available to assess what was medically
justified and reasonable. The respondents further submit that the judge
made no error in principle on non‑pecuniary damages in relation to either
massage or housekeeping capacity.

[50]

The appellant does not dispute the awards for ergonomic equipment and
services ($17,708), psychological counselling ($10,000), physiotherapy, or
kinesiology ($5,000), and fitness costs ($25,000). I will consider each of the
disputed awards in turn.

Massage Therapy

[51]

The judge briefly summarized the evidence of the doctors:

[64]      Dr. Zaki and Dr. Thompson
are generally supportive of active forms of therapy and exercise such as
physiotherapy, kinesiology, Pilates, and gym exercise. Dr. Zaki supports
massage therapy on an as-needed basis, but Dr. Thompsons evidence was not
supportive of massage.

[52]

The judge concluded that an allowance of $1,500 was sufficient to
provide for medically justified massage therapy:

[68]      Up until recently, Ms. Quigley took massage
occasionally  about 50 treatments beginning in 2016. Currently she sees her
massage therapist very regularly, and does get some short-term pain relief.
I
conclude that massage therapy during flare-up periods is medically justified
,
but if the plaintiff wishes to take regular massage it ought to be paid from
the non-pecuniary damages. A $1500 allowance will be sufficient to provide the
medically justified coverage.

[Emphasis added.]

[53]

The appellant submits the judge erred in finding that massage therapy
should be funded from non-pecuniary damages. Further, she says the judge
misapprehended Dr. Thompsons evidence, who acknowledged on cross‑examination
that he would support massage therapy if the appellant reported relief from it.
The evidence established that she had averaged 15.7 sessions per year from 2016
to January 2019, and weekly thereafter. As such, the appellant submits the
judge erred to award the equivalent of only 20 sessions of massage therapy, for
the rest of her life.

[54]

The respondents submit that the judges comment that if the plaintiff
wishes to take regular massage it ought to be paid from the non-pecuniary
damages is not a statement that pecuniary losses are to be paid from
non-pecuniary damages. Rather, the judge concluded that the only medically
justified massage therapy was during periods of flare-ups. The respondents say
that his comment should be interpreted to suggest that if the appellant wanted
additional massage therapy, it could be paid for out of non-pecuniary damages,
which intend to compensate a plaintiff for her pain and suffering.

[55]

On cross-examination, Dr. Thompson stated as follows with respect
to massage:

Q [Counsel for the defendants]: Do you see this woman using
massage, not to cure her or to make her much better, but just for symptom relief?

A [Dr. Thompson]: Some people will do that. The problem
of course is that often massage is very temporary, and I think she mentioned
that to me.
And the other problem with sort of continued passive therapies
beyond the acute phase is that there isnt much medical evidence to support
their use
. And second, sometimes overuse of passive therapies at the
expense of active therapy can be detrimental, both in terms of, you know,
decreased physical conditioning, and it can also sometimes negatively reinforce
misbehaviour. And I guess the other point Id make is that often in someone
like Ms. Quigleys circumstance, the sort of goal of treatment is to give
them the skills to self-manage their symptoms. So, for example, if she did find
that massage in certain areas was beneficial, a physiotherapist or a massage
therapist may be able to show her how to use a rolling technique where you take
a ball or a similar sort of device to self-massage the area.

Q: Doctor, if massage is used for symptom relief along with
an exercise program and counselling, would you agree that that would be
suitable for this woman?

A: Yes and no. As I said, I have some concerns about, you
know, continued use of passive therapies beyond the acute phase
because it
isnt supported by medical evidence and because it may develop some dependency
as well
.

Q: If Robyn Quigley reports that she gets benefit, i.e.
symptom relief from massage therapy, and that she sees that as a benefit -- and
this is, doctor, a woman with a very active life and with a drive to maximize
her functioning -- would you accept that for her, while theres no long-term
benefit, if it gives her symptom relief, then its worthwhile her doing, again,
along with the gym, Pilates, exercising and staying very active?

A: I would not disagree with that. I mean, if she does feel
that it makes a difference. But, as I pointed out, there are techniques that
patients can do on their own to do that sort of thing for themselves, and that
gives them the flexibility of doing it when they need it and not taking time
out of the day to go to see a massage therapist.

Q: And if this woman also says Ive tried it and massage
gives me relief, and even though it's inconvenient for me to take time to go to
massage, its worth my while to do that. Would you accept that from her?

A: I would accept it.
Something that she and the massage
therapist or physiotherapist had made an effort to try and get her to do it for
herself, give her the flexibility of doing it on her own time, and when she
needed it
.

[Emphasis added.]

[56]

Based on the foregoing, I am of the view that the judge did not
misapprehend Dr. Thompsons evidence. Dr. Thompson opined that the
medical evidence did not support the use of continued passive therapies like
massage beyond the acute phase. Rather, he noted that the goal is to assist
patients to develop skills to self‑manage symptoms that massage may
alleviate, through techniques learned from physiotherapists or massage
therapists.

[57]

The appellant also argues that Dr. Zaki was in favour of massage.
In Dr. Zakis expert report, he stated that [m]assage therapy can be
utilized on an as‑needed basis as a non-pharmacological way of managing
pain flare-ups as needed. As such, Dr. Zaki may be more accurately
characterized as being in favour of massage on an as-needed basis to manage
pain flare-ups.

[58]

On appeal, the appellant asks that this Court award $109,200 for massage
therapy. This represents the annual cost of $3,900 for one massage per week for
28 years using the present value multiplier

used by the judge. In my view, the evidence
of Dr. Zaki and Dr. Thompson does not support such an award. Neither
doctor opined that the appellant would require that frequency or duration of
massage therapy to manage her symptoms. On the basis of the expert evidence, it
was not unreasonable for the judge to conclude that $1,500 was sufficient for
medically justified massage coverage during flare-up periods.

[59]

Further, the judge did not find that
medically necessary
massage
therapy should be funded from non-pecuniary damages. Rather, the judge based
his pecuniary award on what was medically necessary, and stated that any
further massage therapy would have to be funded from other sources. In
Gignac
,
Justice Bennett for the Court made similar comments at para. 42,
holding that if the appellant wishes to buy furniture to enable him to return
to this hobby, he will need to rely on the funds from the non-pecuniary award.
In my view, the judge did not err in principle in his discussion of
non-pecuniary damages or in his assessment of a reasonable award for massage
therapy.

Medications

[60]

The judge awarded $1,750 for prescription medications. He accepted the
defendants analysis on this amount, given the plaintiffs pattern of usage and
his expectation that the plaintiff will experience some improvement.

[61]

The appellant submits that there was no basis in the evidence for the
selection of a two-year period for use of medication. She notes the physicians
support for Ms. Quigleys use of medications, her continued use in fact,
and Dr. Zaki and Dr. Ancills prognosis that debilitating headaches
would continue for the foreseeable future. She submits that the judge erred to
find that her condition was likely to improve, which radically limited the
amount of time for which medications were awarded.

[62]

The respondents submit that there was no guidance in the medical
evidence with respect to the frequency or duration of recommended medications.

[63]

First, as discussed above, the judges inference that the appellant
would experience some improvement is reasonably supported by the evidence.

[64]

Second, the judges award for medications was reasonable based on the
evidence. The appellant seeks a $21,117.60 award for medication, based on a
current annual cost of $754.20 and a multiplier of 28. This assumes that the
appellant would continue to take her current medications indefinitely. In my
view, the medical evidence does not support this claim. In his expert report, Dr. Thompson
wrote as follows:

Ms. Quigleys desire to
limit medication use to over the counter medication for her
musculoskeletal/orthopaedic symptoms would be appropriate. In addition to
minimizing side effects associated with prescription medication, the level of
medical evidence to support the efficacy for most prescription medications for soft
tissue injuries is low. [Medical Legal Report of Dr. J.P. Thompson, 2829.]

[65]

Similarly with Botox, I am of the view that an award of $3,600 is not
unreasonable or a wholly erroneous estimate of the damage. The judge found that
there is ample medical justification for a Botox trial, but that it is a
challenge to determine an award that takes into account the various
possibilities, including the possibility that the treatment would not be
effective. At trial, counsel for the appellant agreed that $3,600 would be a
reasonable award:

My friends last submission, My Lord, was on the Botox, and
she has submitted that an appropriate award is $3,600, which provides 12 treatments.
My Lord, I think thats probably worthwhile. I say that in part because
everything shes tried before, shes tried and in the end it didnt provide
much benefit.
So I would say that the $3,600 for the Botox is reasonable
.
Its unfortunate that she didnt have the Botox before trial and then we would
all know how effective or ineffective it is.

[Emphasis added.]

[66]

On appeal, the appellant departs from this position and seeks an award
of $33,600, representing the annual cost of $1,200 for quarterly Botox
injections for 28 years. I would not give effect to this argument for two
reasons. First, this Court is reluctant to permit a party to resile from a
position deliberately taken at trial. As Justice Frankel stated in
Sahlin v.
The Nature Trust of British Columbia, Inc.
, 2011 BCCA 157, 
although the practice is not immutable, this
Court has, in the past, refused to allow a party that has deliberately adopted
a position in the trial court to resile from that position on appeal: at para. 38.

[67]

In some circumstances, the taking
of inconsistent positions can constitute an abuse of process:
Fortinet Technologies (Canada) ULC v. Bell Canada
, 2018 BCCA 277 at para. 23
. While I do not suggest that
the change of positions in this case rises to that level, there would be an
element of unfairness in allowing the appellant to resile from the concession
made at trial.
Because of that
concession, the judge was not asked to consider the arguments of the parties
and did not give reasons on that issue. To allow the appellant to change that
position on appeal would be contrary to the interest of finality. While the
award for Botox is a minor issue in this case, permitting an appellant to take
a position on appeal contrary to a concession made at trial should not be
encouraged.

[68]

That is a complete answer to this argument. However, I am also of the
view that the award is reasonably supported by the evidence. Though Dr. Zaki
stated that Botox injections can be quite effective in reducing headaches and
severity of muscle spasms, he did not recommend that the appellant receive four
injections a year for an indefiniteor anyperiod. As agreed by counsel at
trial, the evidence supported a trial of Botox and nothing more.

Housekeeping Services

[69]

The judge concluded that the claim for housekeeping services has not
been shown to be medically required or justified. Further, he was quite sure
that Ms. Quigley would not make use of such services: Reasons at para. 73.
However, the judge did make a slight upward adjustment to the non-pecuniary
damages award for impairment of her housekeeping capacity. This was
reflected in his non‑pecuniary damages award of $110,000.

[70]

The appellant disputes what she characterizes as an effectively nil
award for housekeeping services. She submits that the evidence indicates a
significant impairment to her functioning at home, which was exacerbated by her
efforts to go the extra mile to mitigate her economic losses, which in turn
benefitted the defendants on other heads of damages. She submits that the
appropriate award is $72,800, based on two hours per week of assistance at $25
an hour and a multiplier of 28.

[71]

The loss of housekeeping capacity may be compensated by a pecuniary or
non-pecuniary award:
McTavish v. MacGillivray
, 2000 BCCA 164 at para. 73;
Kim
at para. 28. It is within the trial judges discretion whether
to address such a claim as part of the non-pecuniary loss or as a segregated
pecuniary head of damage:
Liu v. Bains
, 2016 BCCA 374:

[26]      It lies in the trial
judges discretion whether to address such a claim as part of the non-pecuniary
loss or as a segregated pecuniary head of damage. In
McTavish
at paras. 68-69,
the Court suggested that treating loss of housekeeping capacity as
non-pecuniary loss may be best suited to cases in which the plaintiff is still
able to perform household tasks with difficulty or decides they need not be
done, while remuneration in pecuniary terms is preferable where family members
gratuitously perform the lost services, thereby avoiding necessary replacement
costs.

[72]

In
Kim
, Chief Justice Bauman suggested that where a plaintiff
suffers an injury which would make a reasonable person in the plaintiffs
circumstances unable to perform usual and necessary household work, that loss
may be compensated by a pecuniary damages award. Where the plaintiff suffers a
loss that is more in keeping with a loss of amenities, or increased pain and
suffering, that loss may instead be compensated by a non-pecuniary damages
award. However, this is not an inflexible rule. It remains within the judges
discretion to determine whether pecuniary or non-pecuniary damages are more
appropriate:
Kim
at para. 33.

[73]

The appellant relies on
Gregory v. Insurance Corporation of British
Columbia
, 2011 BCCA 144, in which this Court overturned the trial judges
decision not to award damages for housekeeping assistance and home and yard
maintenance. However, the circumstances in the present case are distinguishable
from those in
Gregory
, where this Court held that the trial judge erred
in concluding that housekeeping assistance was not medically necessary when, in
fact, an expert occupational therapist recommended that the plaintiff receive
multiple hours per week of assistance:
Gregory
at paras. 40, 47.

[74]

In the present case, the judge concluded on the basis of the appellants
testimony that she was able to continue to perform the necessary household
work. She stated that she did the work with some increase in her symptoms,
including headaches. Nevertheless, she chose to do that work herself rather
than have others perform it. There was no medical or other expert evidence
recommending housekeeping assistance. I see no error in the judges
appreciation of the evidence. With that factual foundation, it was within the
judges discretion to determine whether pecuniary or non-pecuniary damages were
appropriate:
Kim
at para. 33. I see no error in his decision to
compensate the appellant by awarding an increase in the amount for
non-pecuniary damages, rather than making a pecuniary award.

[75]

In summary, the appellant asks this Court to reweigh the evidence
presented at trial on the future care expenses and award larger amounts than
the judge did. That is not the task of this Court. The appellant is unable to
demonstrate that the judges assessment was based on any incorrect principle of
law, nor was it wholly erroneous either in aggregate or in any of the
individual areas discussed above. Further, there was limited medical evidence
to support the assertion that the treatments or medications were necessary let
alone as to their frequency or duration. Despite the shortcomings of the
evidence, the judge used the available evidence to fashion an award that is
medically justified and reasonable in the circumstances. I would not give effect
to this ground of appeal.

Disposition

[76]

I would dismiss the appeal.

The Honourable Mr. Justice Butler

I AGREE:

The
Honourable
Madam Justice Fenlon

I AGREE:

The Honourable
Mr. Justice Hunter


