



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Reimer
  v. Bischoff,









2017 BCCA 4




Date: 20170110

Docket: CA43236

Between:

Donna Reimer

Respondent

(Plaintiff)

And

Jesse Paul Bischoff

Appellant

(Defendant)

And

Helen Elaine Cheesman

Respondent

(Defendant)




Before:



The
  Honourable Mr. Justice Frankel

The
  Honourable
Mr. Justice
  Harris

The
  Honourable
Mr. Justice
  Savage




On appeal from:  An order of the Supreme Court of British
Columbia, dated
October 15, 2015 (
Reimer v. Bischoff
, 2015 BCSC 1876, Vernon Registry
50890).




Counsel for
  the Appellant:



A. Murray, Q.C.





Counsel for
  the Respondents:



K. Burnham





Place and
  Date of Hearing:



Vancouver, British Columbia

December 12, 2016





Place and
  Date of Judgment:



Vancouver, British Columbia

January 10, 2017









Written
  Reasons by:





The
  Honourable Mr. Justice Harris





Concurred
  in by:





The
  Honourable
Mr. Justice
  Frankel

The
  Honourable
Mr. Justice
  Savage








Summary:

In a motor vehicle accident trial where the sole issue
was damages, the trial judge awarded the respondent damages for jaw pain, future
cost of Botox and migraine medication, and loss of past and future income. The
appellant argues that those awards are not supported by the evidence. HELD: appeal
allowed in part. There is a thin, but sufficient evidentiary basis to support
the judges finding that the jaw pain was caused by the accident. The Botox
award is set aside as no admissible medical evidence supported that award. As
to the award for migraine medication, the judge erred in not considering his
findings that migraines from both accident and non-accident causes will
diminish over time, thus requiring additional adjustments for contingencies. However,
in the balance, this Court would not disturb the trial judges contingency
reduction for this award. The award for past and future income is reduced by
25%, as the judge erred in not accounting for how, as was the respondents
practice pre-accident, part-time workers would be hired from time to time in
any event of the accident based on fluctuations in business volume.

Reasons for Judgment of the Honourable
Mr. Justice Harris

Introduction

[1]

This is an appeal
of three components of a damages award arising out of a motor vehicle accident.
First, the appellant appeals an award for the cost of future care items for the
treatment of a temporomandibular joint (TMJ) injury on the basis that there was
no admissible evidence that the injury was caused by the motor vehicle
accident. Second, the appellant appeals an award made in respect of the future
cost of Botox treatment and migraine medications on the basis that those awards
rest on palpable and overriding errors of fact. Third, the appellant appeals
the award of past and future income loss, again alleging palpable and
overriding errors of fact.

[2]

The respondent was
injured in a motor vehicle accident on June 19, 2011. The respondent was
injured in a rear-end accident caused by the appellant. The forces involved in
the accident were significant. The respondents vehicle was a total loss. Liability
was admitted. The trial was restricted to the issue of quantum of damages.

[3]

At the time of the
accident, the respondent was 55 years old. She was self-employed. She ran
a copy franchise.

[4]

There is no
dispute that the accident caused the respondent substantial injuries. The trial
judge found that she suffered chronic dizziness and balance issues, soft tissue
injuries to her neck, shoulder and low back, jaw and ear pain and associated
headaches, aggravation of pre‑existing migraines, emotional stress and
mood disorder, symptoms of post-traumatic stress disorder, fatigue, and
cognitive deficits caused by the cumulative effect of her other injuries,
particularly a vestibular injury. The judge rejected a claim that the
respondent had suffered a mild traumatic brain injury as a result of the
accident.

[5]

Prior to the
accident, the respondents only significant health issue was a 20‑year
history of migraine headaches associated with her menstrual cycle. The
migraines usually lasted two to three days a month during which she experienced
photosensitivity, nausea and sensitivity to movement.

[6]

Insofar as the respondents
prognosis is concerned, the judge found that her TMJ injuries and remaining
soft tissue injuries would resolve with proper treatment; the psychological
difficulties including mood disorder, fatigue and migraine headaches would
improve over the long run with proper counselling and pharmacological
assistance, but the outlook was poor for balance, dizziness and memory
problems.

[7]

The trial judge
awarded the following
:




Non-pecuniary damages:



$100,000





Past Loss of Income/Loss of Capacity to Work
:



$  30,000





Future Loss of Income/Loss of
  Capital-Earning Capacity:



$  60,000





Future Care Costs:



$  84,000





Special Damages:



$    8,044





Total:



$282,044






[8]

It seems clear
from the reasons for judgment that the primary issues the judge had to grapple with
concerned the accuracy and reliability of the respondents evidence concerning
her injuries and their severity. In particular, the judge had to decide whether
the plaintiff had suffered a mild traumatic brain injury. He concluded that she
had not, based substantially on his rejection of her evidence about whether she
had lost consciousness at the time of the accident.

[9]

Given the
centrality of what were effectively the live issues at trial, it is not perhaps
surprising that the reasons for judgment are brief in respect of those
components of the damage award in issue on this appeal. I propose to refer to
those reasons in connection with each alleged ground of appeal.

[10]

Each ground of
appeal alleges, in one form or another, that the awards rest on palpable and
overriding errors of fact, principally because there was no evidence necessary
to support the award or, failing that, the judge did not assess the amount
awarded in light of applicable contingencies. It is unnecessary to rehearse in
detail the standard of review engaged by this appeal. Obviously, we apply a
deferential standard to findings of fact which are capable of being supported
by the evidence before the trial judge, considered in their totality:
Housen
v. Nikolaisen,
2002 SCC 33 at paras. 29‑37;
Friedl v. Friedl,
2009 BCCA 314, at paras. 28‑29;
Ediger v. Johnston,
2013
SCC 18 at para. 29.

Did the Judge Err in Awarding
Future Care Costs in Respect of the Respondents Jaw Injury
?


[11]

The judges
finding that the respondent suffered jaw pain is based principally on an
opinion provided by Dr. Blasberg. Here is what the judge found:

[47]      Dr. Blasberg,
an oral medical specialist, assessed the plaintiff on March 27, 2014 and
diagnosed her as suffering from a myofascial pain of her masticatory (jaw)
muscle with referral contributing to jaw pain, dental pain, ear pain, and
temple headaches.

[48]      Dr. Blasberg
also diagnosed the plaintiff as suffering from arthralgia of the right TMJ
which is characterized by pain and tenderness in the joint capsule and/or
synovial lining of the TMJ.

[49]      Dr. Blasberg
was of the view that her failure to immediately complain about specific jaw
pain is not unusual when there are injuries to the head. With proper treatment
as laid out in his report, he was of the view that There were no clinical
findings identified that would prevent Ms. Reimer from fully recovering
from these jaw conditions. While in my opinion it is more likely than not that Ms. Reimer
will fully recover, she might not, continuing to experience jaw pain, ear pain
and headache requiring self-management and professional advice and treatment.
I accept Dr. Blasbergs evidence that professional treatment would take
between 12 and 24 months.

[12]

Dr. Blasbergs
opinion that the jaw pain was caused by the accident was based principally on
his assumption, confirmed in cross-examination, that the respondent had
suffered ear and jaw pain together from almost immediately after the accident
in June 2011, until the date he examined her in 2014. Dr. Blasberg relied
on the respondents report to him that she had suffered those symptoms from
immediately after the accident. In his report he stated:

I assumed that Ms. Reimer was experiencing ear pain
and jaw pain beginning shortly after the motor vehicle accident as a result of
injury to the jaw muscles
.
She stated that jaw pain and ear pain occurred together. I assumed that the ear
pain was due to the injuries associated with the jaw muscles. There were no
clinical records reviewed that included any examination of the jaw structures
shortly after the motor vehicle accident to contradict my assumptions. Ms. Reimer
at her examination pointed to the ear, temple and jaw angle on the right as the
pain she was experiencing days after the motor vehicle accident. I assumed that
the focus of medical attention was directed toward the ear and the headaches
rather than the jaw structures. I assumed that a history of migraines, direct
trauma to the head at the time of the motor vehicle accident and a traumatic
brain injury with issues that took precedence over directing attention to jaw
structures.

[Emphasis
added.]

[13]

The trial judge
commented on the respondents evidence at para. 26:

The
plaintiff gave direct evidence concerning her temporomandibular joint (TMJ)
or jaw pain. She stated that she told Dr. Blasberg that she suffered from
right jaw pain beginning shortly after the accident on a daily/nightly basis
and this pain continued up to the present time. There is, however, no note of
jaw pain in records of the plaintiffs family doctor prior to December 2012, no
record of any dental visits until September 2012, and no report of complaints
to her dentist on eight subsequent visits between September 12 and
December 13, 2012. I accept the fact that the plaintiff does not have to
provide the same litany of complaints to every medical professional. Some
complaints are more important than others and purely because the plaintiff does
not mention these complaints on a consistent basis should not automatically
adversely affect the weight to be given to her evidence. However, here there is
no evidence of complaints for several years after the accident.

[14]

He went on to
comment on her evidence generally:

[38]      I
accept that the plaintiff has had difficulties with her memory but her memory
difficulties do not explain all the inconsistencies in her evidence and the
documentary evidence, particularly the conflict between her testimony and the
evidence of the various doctors. I am very hesitant to give a great deal of
weight to the plaintiffs evidence save and except where it has been
corroborated by other independent witnesses.

[15]

It is common
ground that the respondent did not testify at trial that she suffered right jaw
pain beginning shortly after the accident on a daily/nightly basis. It is
common ground that the judges finding in that respect is in error. She did not
testify that she suffered any jaw pain prior to the date of her examination by Dr. Blasberg.
She testified that she been referred to Dr. Blasberg in March 2014 for a stabbing
ear pain which she experienced a short while after the accident. She said
that she had told her doctor about it within the first couple of months after
the accident. She did not testify about what she told Dr. Blasberg, but
she did say that he felt different parts of the jaw, pressed in behind her ear
and when he did so she could feel the same type of pain.

[16]

Based on the
above, the appellant argues that the only evidence that the respondent suffered
ear and jaw pain
together
shortly after the accident is Dr. Blasbergs
statement in his medical opinion, which is an assumption on which the opinion
is based. The appellant argues from the proposition that an opinion must be
based on proven facts, that the fact of jaw and ear pain onset shortly after
the accident has not been proven. Accordingly, no weight can be given to the
opinion, particularly since the judge himself concluded that he could not give
a great deal of weight to the plaintiffs evidence unless it had been
corroborated. Here, there was no corroboration of any complaints to any
practitioners of jaw and ear pain for a considerable time after the accident.
Paragraph 26 quoted above suggests that the trial judge had indeed
rejected the plaintiffs evidence that she suffered jaw pain shortly after the
accident, but then relied on an opinion which rested on the unproven assumption,
or evidence that he had dismissed, in awarding damages in respect of the TMJ
injuries. In short, the judge reached a conclusion in making the award that was
inconsistent with his earlier finding, but in any event, for which there was no
admissible evidence.

[17]

The appellant also
points to a concession made by Dr. Blasberg that the respondents jaw
problem possibly (but not probably) could be related to root canal surgery done
a few months before he examined her. The respondent points out, however, that
there is evidence of the respondent suffering tenderness in her jaw before the
root canal surgery when she was examined by a Dr. Longridge in September
2013. Also, it appears that there is no other possible explanation of her jaw problem
unrelated to the accident.

[18]

The respondent
contends that the judge was entitled to rely on the opinion of Dr. Blasberg,
notwithstanding the admitted deficiencies in the evidence and the lack of
corroboration in the contemporaneous medical reports of complaints consistent
with the assumption on which the opinion rests. She points out that Dr. Blasberg
explains in the opinion why a patient may not recognize that the symptoms
relate to a jaw problem because the focus is placed elsewhere.

[19]

In my view, the
appellant proffers a strong argument that the trial judge made a palpable and
overriding error in accepting Dr. Blasbergs opinion that the accident
caused the respondents jaw problem. I agree with the general proposition that
facts constituting an assumption for an opinion must be proven, if the opinion
is to be given weight. The question here is whether there is
any
evidence capable of supporting the assumption on which the opinion rests.

[20]

I begin by observing that the judges general comment about the respondents
credibility is that he was very hesitant to give a great deal of weight to the
plaintiffs evidence save and except where it has been corroborated by other
independent witnesses. The judge does not say that he gives
no
weight
to her evidence. Moreover, the focus of his comments in para. 26 is on
whether the respondent suffered jaw pain shortly after the accident. I take his
comments to be a rejection of her evidence on that point. The question is,
then, whether that finding can be reconciled with the judges acceptance of Dr. Blasbergs
opinion.

[21]

In my opinion,
there is a basis upon which they can be reconciled. Dr. Blasberg assumes that
the respondent suffered ear pain shortly after the accident, of which there was
evidence, and further, that the ear pain could be explained by a jaw problem.
The respondent was not cross-examined on her complaints of ear pain. The
medical opinion explains how jaw pain may not be a focus of complaint, given a
constellation of other symptoms and perhaps more pressing concerns. It seems to
me that the judge accepted the general proposition, put by the doctor, that it
may be difficult for patients to distinguish a jaw issue from an ear problem,
given the locality of the pain. The unchallenged evidence that the respondent
felt the same type of pain (i.e., stabbing ear pains) when Dr. Blasberg
pressed on the relevant area in assessing jaw issues supports this view.

[22]

I take it, then,
that the trial judge must have been prepared to accept that the respondent
suffered from ear pain, and then accepted the opinion that the ear pain was
related to a jaw problem. Dr. Blasberg was not cross-examined on whether
reporting ear pain alone was a sufficient basis to ground his opinion. It is also
pertinent that the respondent did complain of ear pain some two years after the
accident to Dr. Stewart and Dr. Longridge, both of whom directed the
respondent to see a jaw or oral specialist. Dr. Stewart and Dr. Longridges
reports were before the root canal surgery, which is the only other explanation
for the jaw pain in the evidence. Given the evidence of Dr. Blasberg that a
patient may overlook jaw pain or confuse it for ear pain, combined with the
pre‑root canal surgery evidence of the respondents ear pain complaints
of a similar nature, there is just sufficient evidence for me to say that it was
open for the trial judge to accept that the jaw injury was caused by the
accident.

[23]

In my opinion, it
would clearly have been open to the trial judge to reject the claim that the
respondents jaw problem was caused by the motor vehicle accident. The opinion
might well have been rejected by the trial judge in light of his general
comments about the reliability of the respondents evidence. Nonetheless, there
was just enough evidence to support an assumption underlying the opinion, which
the judge must have considered to be a sufficient basis to accept it. As a
result, I would not accede to this ground of appeal.

Did the Judge Err in Awarding
the Cost of Future Care for Botox and Migraine Medications
?

[24]

The respondent has
a 20‑year pre‑accident history of migraine headaches, associated
with her menstrual cycle as I referred to above. The trial judges findings on
this point are the following:

[51]      It
is acknowledged that the plaintiff had low grade headaches continuously for
three months after the accident. One year post-accident she had hormone therapy
which resulted in her having migraine headaches as a result of her menstrual
cycle once every four months. She still reports, however, that she has migraine
headaches two to three times per month that are not related to her menstrual
cycle.

[52]      Dr. Dost
accepts that the accident has exacerbated the plaintiffs migraine headaches. Dr. Cameron
opined that the plaintiff is suffering from post-traumatic migraine headaches
and suggests that she also is probably suffering with intermixed
musculoskeletal headaches following this accident as a result of the head
trauma that she sustained at the time of the accident.

[53]      I
am satisfied that the plaintiff still suffers migraine headaches that were a
direct result of the accident. Although the plaintiff had a history of migraine
headaches prior to the accident, the evidence indicates that these migraines
increased in severity and frequency after the accident, and her attempts to
mitigate these migraines have not completely returned her to her pre-accident
condition.

[25]

After addressing
other claims, the judge dealt with future cost of care in one paragraph:

[109]    All
the remaining future costs of care have been recommended by medical
professionals including the occupational therapist and all in my view are
reasonable. For future costs of care I award the sum of $84,000.

[26]

Included in the
future cost of care award is $34,768.90 for Botox treatment. That award
represents 75% of the cost of for Botox treatments annually for life. The 25%
discount reflects the respondents submission that there should be an
adjustment to account for menstrual migraines, which are not related to the
accident. Also included in the award was $24,015 representing 75% of the annual
cost of migraine medications, Topiramate and Replax, over the course of the
respondents life.

[27]

I observe in
passing that the cost of future care report did not include a claim for the
cost of Botox. The claim for the cost of Botox arose during submissions at
trial.

[28]

As the trial judge
commented, the management of the respondents menstrual migraines involved
hormone treatment that reduced their frequency, but did not eliminate accident-related
migraines. Overall, the management of the respondents accident-related migraines
involves daily use of Topiramate to prevent the migraine headaches,
supplemented by Replax to mitigate the symptoms when they occur. The appellant
argues that there was no properly admissible medical evidence that these
medications were taken because of the accident, and submits that the respondent
would be taking the migraine prevention medication in any event of the
accident.

[29]

The parties do not
dispute that determining the cost of future care involves identifying medically
justified and recommended treatment responding to injury caused by an accident
that sustains or improves the mental or physical health of the plaintiff.

[30]

It is quite clear
on the record that the judge fell into error in concluding that the cost of
Botox treatment had been recommended by a medical professional. The respondent
had testified that she had in the past used Botox for cosmetic reasons, and
found that it provided relief from her migraines. The use of Botox to treat
migraine was confirmed to her by a Dr. Donat, and the respondent testified
that its use to treat migraines had been recommended to her by Dr. Donat
and Dr. Buttars. Neither of those opinions was in evidence in an
admissible form for their truth. The only admissible medical evidence
concerning Botox was an opinion that if the other preventive treatments should
become ineffective, then a trial with Botox might be recommended. There was no
evidence about the likelihood of the existing or alternative preventive
treatments, Topiramate and Replax, ceasing to be effective.

[31]

I am satisfied
that there was no medical evidence before the court capable of justifying the
cost of Botox treatment. Moreover, the possibility that Botox would be
recommended in the future was entirely speculative. In any event, the award
made for the cost of Botox treatment is a form of double recovery because it
duplicates the cost of treatment provided by the preventive and treatment
medications for which compensation had already been provided.

[32]

In my view, there
was no evidentiary foundation for the award of the future cost of Botox
treatment and no basis on which to assume, even on a discounted basis, that
treatment of the migraine headaches by using Botox would ever be medically
recommended for the respondent.

[33]

I would set aside
the award for the future cost of Botox treatment.

[34]

I turn now to
consider the award for the future cost of the preventive and treatment migraine
medications. There is no doubt that these treatments are medically justified.
Here, the appellants essential argument is that these treatments would be
needed in any event of the accident. The appellant further submits that the
award did not adjust the award for the trial judges own finding that the migraines
caused by the accident would improve over time.

[35]

On my review of
the evidence, it is clear that the respondent suffers from both menstrual and
accident-related migraines. The hormone treatment is effective in controlling
menstrual migraines for a three-month period, but accident-related migraines
occur regularly and frequently. There was no evidence that if the accident had
not happened, the hormone treatment would have been sufficient to avoid migraines
for three months at a time, with migraine medication needed only every fourth
month. The evidence is unclear whether the respondent likely would be on the
preventive medication regimen in any event of the accident, but it is clear
that she would be on that treatment to avoid or mitigate the accident-related
migraines. In these circumstances, I cannot say the judge erred in making an
award for migraine medication.

[36]

The trial judge imposed a 25% reduction to account for the fact that
some of the medication would be attributable to the prevention and treatment of
menstrual migraines. He does not consider his finding was that the respondents
accident-related migraines would improve over time. Equally, he did not factor
in a contingency to reflect the fact that the respondents menstrual migraines
would likely diminish and cease over time in light of her age. These
contingencies have opposing effects on the award; increasing the relative
frequency of accident-related migraine with menopause, but with a diminishing
frequency of accident-related migraines as the respondents health improved.
Although the judge did not factor these contingencies into the award (see,
Morlan
v. Barrett
, 2012 BCCA 66), I would not disturb it since it may be a
reasonable assumption that the positive and negative contingencies would cancel
each other out.

Did the Trial Judge Err in
his Award of Past and Future Income Loss
?

[37]

The trial judge
made an award of $30,000 for past income loss and $60,000 for loss of future
earning capacity. In reaching that conclusion, he rejected the respondents
theory of her income loss attributable to the accident. That theory rested on a
loss of gross profits for the respondents business, as well as incurring
additional labour expenses to run it.

[38]

The judge found as
a fact that the plaintiff did not lose any business as a result of the
accident. Rather, there had been a general decrease in gross revenue before the
accident, beginning in 2008. Secondly, the judge accepted that the respondent
had to work longer hours as a result of the accident to run her business, but
he provided compensation for that in his award of non‑pecuniary damages. Neither
party raised as an issue in this appeal whether it was an error to provide
compensation in that way. Thirdly, in explaining his award for future loss of
income, the trial judge defined the respondents loss to be her need for some
part-time help in order for her to continue to operate the business as she did
prior to the accident. Clearly, the judge formed the view that, because of the
accident, the respondent needed part-time help, beyond working longer hours, to
be able to operate her business.

[39]

The appellant
contends that the income loss award can only be explained on the basis that the
judge compensated for the replacement costs for the part-time employees taken
on since the accident. This seems to be a reasonable conclusion. The cost of
those employees to the end of 2014 was $26,873. Making some adjustment for the
costs incurred in 2015, of which there was no direct evidence, an award of
$30,000 is supportable on the evidence.

[40]

The problem with
this award, according to the appellant, is that apart from the first part-time
employee who was hired immediately after the accident for some months, there
was no evidence that the other part-time employees were hired because of her
injuries or to undertake particular tasks that the respondent was no longer
able to do because of the accident. In fact, the respondent ran the business
effectively on her own for close to a year after her first part-time employee
left. The appellant argues that, on the evidence, the respondent was capable of
doing all of those tasks necessary to run the business, although executing
those tasks took longer and required the respondent to work longer in the
evenings and on the weekends, matters which were compensated for in the non‑pecuniary
damages.

[41]

Moreover, the
appellant argues that, except for the immediate few months after the accident,
whether a part-time employee was engaged in the business depended on how much
work there was for the company, not on the need to have someone undertake tasks
the respondent could not do because of the accident.

[42]

In support of this
theory, the appellant points to the pre‑accident history of part-time
employment within the business. The appellant says that the record demonstrates
that when the work was there, a part-time employee was engaged. When the work
was not there, they were let go. A part-time employee was engaged in each year
between 2007 and 2010 when gross revenue ranged between approximately
$130,000-$140,000. In the second half of 2010, business slowed significantly
and at that time the part-time employee was let go because of the shortage of
work. The respondent admitted that at that time there was not enough work for
both of them. That same situation prevailed in the first part of 2011, the
respondent acknowledged, before the accident. After the accident, for some
months, she needed part-time help to run the business; a fact acknowledged by
the appellant.

[43]

After letting her
part-time employee go in late 2011, the respondent ran the business on her own.
She did so for approximately a year until she hired her son in September 2012.
The appellants theory is that as more work was available in 2012 to 2014, as
reflected by gross revenues in the range of $122,000-$125,000, so part-time
help was hired. In short, a part-time worker was hired because of increases in
the volume of business, not the accident, save for the worker hired for the
immediate months after the accident.

[44]

The respondent did
not testify that she hired part-time help to assist her in running the business
because of her injuries or because there were particular tasks she could no
longer do. Accordingly, the appellant argues that there was no evidence that
part-time help after 2011 was hired because of the accident and no evidence to
support the award. The appellant submits the evidence is only consistent with part-time
help being engaged after the accident, just as it was pre‑accident, when
there was sufficient business to demand it. In the result, the judges
conclusion that the respondent was going to need some part-time help in order
to help her continue to operate a business as she had done prior to the
accident has no evidentiary foundation. The absence of an evidentiary
foundation undermines both the past and the future award, since the future
award is calibrated to compensate for the future cost of part-time employees.

[45]

Again, there is
considerable force to the appellants argument. With the exception of the
part-time employee engaged immediately after the accident for some months,
there is no clear evidence that part-time employees were taken on to perform
the tasks that the respondent could no longer do as a result of the accident or
generally to assist her because of her injuries. Indeed, there was no clear
evidence that the respondent could not do those tasks necessary to run the
business. Certainly, because of her injuries, her capacity to perform her work
had been diminished and she struggled to perform her tasks efficiently. The
trial judge recognized as much, but compensated for the longer time it took her
to do the job in his award of non‑pecuniary damages.

[46]

It appears clear
that the trial judges estimate of the loss of earning capacity, both past and
future, is based on all of the costs of engaging part-time assistance. The
judge concluded that the respondent needed that part-time assistance to run her
business. This conclusion is distinct from his finding that it took the
respondent longer to perform her tasks. The question is whether the finding
that the respondent needed part-time help, as a result of the accident, was
open to the judge on the evidence.

[47]

The respondent had
certainly been injured in ways which compromised her ability to run her
business. The evidence certainly established that the respondent could be
confused, made mistakes, struggled to do what needed to be done, and took much
longer to do it. The respondent compensated, certainly in part, for those
challenges by working into the evenings and on weekends. The trial judge
accepted this. But recognizing that this is so does not mean that the
respondent was able to do all that she had to do, without help, simply by
working longer hours. It was, I think, open to the judge to infer from the
nature of the respondents injuries that the respondent needed some assistance
during regular hours to help her run the business effectively when her capacity
to discharge her tasks in a timely manner had been compromised because of the
accident. In my opinion, this is an inference which is supportable on the
evidence given the nature of the respondents injuries and her associated loss
of capacity (e.g., dizziness, fatigue, slowness), which affect the respondent
during both regular and non‑business hours. This inference underlies the
finding that the respondent needs some part-time help for her to continue to
operate a business as she had done before the accident.

[48]

I acknowledge that
there was little direct evidence to support the judges conclusion that
part-time assistance was required as a result of the injuries caused by the
accident. But in my opinion, what evidence there is is just sufficient to support
the inference and the finding that some part-time assistance was required as a
consequence of the injuries the respondent suffered and, accordingly, is
sufficient to withstand appellate review. It was open to the judge to find that
the respondents capacity to run her business as she had done before the
accident had been compromised by the accident and assistance was required.

[49]

The question then is
whether the judge erred in not applying some contingency to the quantum of the
award to reflect the likelihood that part-time help would be required from time
to time as the amount of work available to the business changed. The evidence
demonstrated that the employment of part-time help fluctuated with the amount
of work the business had. There is a compelling basis to infer that, quite
apart from the accident, when the work was there, such as when business is
booming, part-time help would be needed to run the business in any event of the
accident. The judge did not consider whether evidence of this contingency,
coupled with other contingencies such as age or general improvement in health
(based on his findings about the respondents prognosis) should lead to a
downward adjustment in the award. In my opinion, this was an error.

[50]

I would accede to
this ground of appeal to the extent that I would reduce both the past and
future income loss awards by 25% to reflect the contingencies described above.

Conclusion

[51]

To summarize, I
would allow the appeal only to the extent of:

a)

setting aside the award for the future
cost of Botox treatment, in the amount of $34,768.90; and

b)

reducing the awards for past and
future loss of income by 25%, in the amount of $22,500.

In total, the amount of the trial award
is reduced by $57,268.90.

[52]

In my view, the
outcome of this appeal reflects mixed success for the parties. I would order
each party to bear their own costs.

The Honourable Mr. Justice Harris

I
agree:

The Honourable Mr. Justice Frankel

I
agree:

The
Honourable Mr. Justice Savage


