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Post Crash Alcoholism Claim Dismissed at Trial

Written by admin on . Posted in Uncategorized.


Last year I highlighted a claim which successfully advanced damages for alcoholism which developed following motor vehicle collision related injuries.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering a similar claim which was rejected at trial.
In this week’s case (Dennis v. Fothergill) the Plaintiff was injured in a 2007 rear-end collision.   She alleged that the injuries resulted in chronic pain which led to post collision alcoholism.  Madam Justice Bruce noted “serious reservations about the credibility of the plaintiff’s evidence overall” and dismissed the claim for post collision alcoholism.  In doing so the Court provided the following reasons:
87]         Turning to the superimposed illnesses of depression and alcoholism, I find there is insufficient, cogent evidence to establish a causal connection between these illnesses and the accident. While there is evidence that people who suffer from chronic pain can develop depression and alcohol dependence in response to the pain experience, there is a lack of evidence to establish a causal connection on the facts of this case. The plaintiff did not raise any concerns about her mood or her alcohol dependence with her physicians until December 2009 during an unrelated consultation with Dr. Zentner when asked about alcohol consumption and in December 2010, when she reported symptoms of depression to Dr. Swope. Thus there is a significant time gap.
[88]         Further, the only evidence of when and how the plaintiff began drinking to mask the pain subsequent to the accident is the plaintiff’s testimony, which is significantly inconsistent. The plaintiff’s disclosure to Dr. Zentner in December 2009 that recently her consumption of alcohol had increased to two or three glasses per day is not consistent with her testimony that since the accident she was consuming the same amount or more each night. The plaintiff’s testimony regarding the motivation for drinking is also inconsistent with her description of her past history with alcohol and her pre-accident injuries. The plaintiff testified that growing up with an alcoholic stepfather taught her to fear alcoholism and steeled her against becoming alcohol dependent as an adult. Prior to the accident she rarely drank and often abstained entirely. This positive attitude toward a healthy lifestyle and aversion to alcohol generally is quite inconsistent with a decision to immediately resort to drinking to lessen pain and improve sleep after the accident. Surely it would have taken some considerable time to break down a resolve to abstain from alcohol consumption that had sustained the plaintiff until she was 42 years old. The plaintiff’s description of how the drinking began is also inconsistent with a failure to develop alcohol dependence when faced with a similar history of chronic pain in her neck, shoulders and back prior to the accident. Lastly, the plaintiff’s evidence that she immediately began drinking alcohol for pain reduction after the accident is inconsistent with the fact that her neck pain was actually improving in early October 2007, just a few days after the accident.
[89]         I am also satisfied that there were many other stressors in the plaintiff’s life, apart from the injuries related to the accident, that are far more likely to be connected with her depression and alcoholism. The plaintiff had difficulties in her workplace; she left the Bee Hive because of disputes with clients that threatened the salon’s business. Had she not left voluntarily, Ms. White would have terminated her arrangement with the plaintiff. The plaintiff had significant financial problems. Her condominium leaked and she needed to raise $65,000 to pay for her share of the repairs. There was also an ongoing dispute with Visa over a $6,000 debt that led to a protracted lawsuit. She was behind on her mortgage, strata fees and income tax. It is significant that during the counselling sessions the plaintiff attended in 2011 and 2012, the subject of the accident never came up and pain was mentioned only once in the context of the plaintiff’s decision to go back to yoga for pain management. It was alcohol, relationships and financial problems that arose before the accident or were unrelated to the accident that formed the basis of her discussions with the counsellor. In addition, the plaintiff had a prior bout of depression in 2004 and 2005 that stemmed from financial worries and the troubling Visa lawsuit. She also had a significant family history of depression that created a risk for developing this illness.
[90]         While I find the evidence of Dr. Lu establishes that the plaintiff currently suffers from depression and alcoholism, I am unable to conclude on a balance of probabilities that these illnesses have a causal connection to the accident or to the injuries caused by the accident. Dr. Lu’s opinions about the causal connection to the accident are highly dependent upon the veracity of the plaintiff’s description of her chronic pain and its origins. As described above, the plaintiff has been dishonest with her physicians and has provided inconsistent evidence at trial. I found she was not a credible witness. Her explanations for these inconsistencies were neither candid nor reasonable. Dr. Lu agreed that alcoholics do not tell the truth about their drinking and try to appear functional when they are not. He testified that an alcoholic’s ability to work is the last to go. Thus the failure to call any corroborating witnesses outside of the workplace to describe the plaintiff’s drinking habits before the accident is a significant omission. I accept that the plaintiff may have lost contact with friends since the accident; however, this fact does not explain why she could not approach one of them to testify on her behalf about her pre-accident health and lifestyle. In all of the circumstances, it would be unsafe to accept the plaintiff’s description of her alcohol consumption as accurate either before or after the accident without some corroborating evidence. None of the collateral witnesses had any real knowledge of the plaintiff’s drinking habits because they did not socialize with her outside of the workplace. They could only say that she did not appear to come to work hung over. Ms. Hicks had no direct contact with her daughter until four years after the accident.
[91]         Accordingly, for these reasons I find that the plaintiff has failed to prove on a balance of probabilities that her current alcoholism and depression is causally related to the accident…

ICBC Denied Liability Withdrawal Following Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Reasons for judgement were recently shared with me by my colleague in Nanaimo addressing ICBC’s attempt to withdraw a formal admission of liability following examinations for discovery.
In the recent case (Smith v. Smith) the Plaintiff was injured while riding as a passenger in a vehicle involved in a 2008 roll-over collision.  ICBC initially took the position that the driver of this vehicle was negligent and responsible for the crash.  In the course of the lawsuit ICBC continued with this position and formally admitted liability.
Both the Plaintiff and Defendant were examined for discovery.  During these examinations evidence was adduced which made ICBC’s lawyer wish to raise the ‘inevitable accident‘ defence.  ICBC sought to withdraw their admission of liability arguing that ‘new information’ came to light through the discovery process.  Mr. Justice Greyell disagreed finding that the ‘new information’ was nothing more than the Defendant’s account of the collision and was available to ICBC all along.  In dismissing ICBC’s request for amended pleadings the Court provided the following reasons:
[28]  The evidence which was elicited at the examinations for discovery of the plaintiff and the defendant on February 21, 2012 was clearly available to ICBC had the adjuster chosen to request it.  There are, to use the words of Rholing at para. 18, no new facts which have come to the attention of the defendants which were not available when the admission was made.
[29]  What appears to have happened in this case is similar to what occurred in Boyd: counsel took a different view of the facts than did the adjuster when the matter was considered shortly after the accident.
[30]  Third, the plaintiff, in my view, would clearly be prejudiced should the Court allow the defendant to withdraw the admission at this late stage of these proceedings…
[31]  Accordingly, the interests of justice are not, in my view, served by permitting the defendant to withdraw his admission.
To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

You Can't Be Forced to Show Your Hand: Litigation Privilege and Expert Reports

Written by admin on . Posted in Uncategorized. 78 Comments on You Can't Be Forced to Show Your Hand: Litigation Privilege and Expert Reports


Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with the limits of the Court’s power to order litigants to reveal which experts they may rely on at trial.
In the recent case (Amezcua v. Norlander) the Plaintiff was injured in two separate collisions.  The first took place some 14 years ago.  Commenting on the pace of litigation the Court noted that “the wheels of justice have ground so slowly that at times they stopped“.
The Defendant was apparently not aware of the nature of the injuries the Plaintiff was advancing.  An application was brought at a Case Planning Conference seeking the Plaintiff to “confirm which experts and expert reports it plans to rely on at trial“.  The Defendant argued that the Court can make such an order under Rule 5-3(1).
Master Baker noted that such an order would infringe on litigation privilege.  The Court did, however, order an accelerated date for the Plaintiff to serve his expert reports noting the slow pace of litigation.  Master Baker provided the following reasons:

[7]As I said above, the defendant Taylor asks for an order that the plaintiff “…confirm which experts and expert reports it plans to rely on at trial”.  In Galvon v. Hopkins, Kloegman J. declined to order that a party name a neurologist consulted by the party, along with the date of the appointment, or to advise of the names of subsequent experts or the dates of their appointments.  After considering several authorities, she concluded:

I do not see anything in Rule 5?3 governing case planning conferences that clearly, expressly, and specifically allows the presider to compel a party to provide another party with the details of any potential expert witnesses before that party has even consulted with the expert or made an election whether to call the witnesses’ evidence at trial.

Rule 5-3 does have clear and express provisions respecting experts: Rule 5-3(1)(k) permits the Court to direct the appointment of joint experts, to order that they consult, to limit the number of experts, to set dates for service of experts’ report (i.e. other than those set by Rules 11-6(3) and (4)), or to direct what issues upon which they may be called.  But none of these (other than by advancing the service date for reports) requires that a party disclose either the expert’s identity, or the area of his or her expertise before serving the report.

[8]Rule 5-3(1)(k) is not inconsistent, in my view, with the reasoning in Galvon.  The disclosure aspects of that Rule assume that evidence has been gathered, assessed, and considered essential to a party’s case.  The only question remaining then is when it will be disclosed, thus Rule 5-3(1)(k)(iv), permitting service dates other than those provided by Rule 11-6.  It is important and instructive to note the court’s reference to “potential” expert witnesses; it seems to me that Kloegman J. was concerned with protecting litigation privilege during the evidence-gathering phase, so that the party assembling his or her case is free to do so without the requirement of disclosing experts (or, I conclude, directions) that may prove fruitless and avoid adverse inferences.

[9]The defendant Taylor’s request, however, comes within Rule 5-3(1)(k) and does not ask the name or expertise of potential witnesses, but rather the details of the experts it will rely on at trial.

[10]This case, as I have mentioned, has an extraordinary aspect.  The first accident occurred approximately 13 years ago.  Such delays sometimes occur when, for example, the plaintiff is an infant.  That is not the case in this situation.  The defence is justified in its frustration and perplexity in not knowing, in any reliable way and after 13 years, the nature or extent of medical injuries suffered by the plaintiff.  That being the case, the plaintiff is ordered to deliver the reports of experts upon which she intends to rely at trial, no later than November 1, 2012.

ICBC Employees Escalate Job Action; Reduce Claims services

Written by admin on . Posted in Uncategorized.

In the ongoing contract dispute  between ICBC and their employees, COPE 378 has just announced escalating job action which will affect claims handling services.  The following specific measures have now come into force which individuals advancing personal injury claims should be aware of:
This new action will require members to stop attending meetings as follows:

  • Pretrial meetings
  • Committee Authority meetings
  • Risk Assessment Committee meetings
  • Mediations and Pretrial Committee Strategy meetings
  • Aligned Counsel team meetings

And/or any meetings that would be considered to be related to the above meetings.

Working Adjuster Caseloads per the 2009 Workload Guideline

The last workload guidelines by the Corporation were presented to the Workload Committee in 2009 and sets out the appropriate file levels for Claims Adjusters and Bodily Injury Adjusters as follows:
Workload Guidelines – Claims Field Services
Claims Adjuster
Guidelines:  51.25 CA files opened per adjuster per month
Bodily Injury Adjuster
Guidelines:  10.5 BI exposures opened per adjuster per month (Claim Centres)
Guidelines:  5 BI exposures opened per adjuster per month (Litigation Centres)
Claims Adjusters and Bodily Injury Adjusters are to work to these guidelines.  For example, Claims Adjusters from October 11 to November 11 take no more than 51 files per month.
Claims Forms
We are also placing a ban on specific forms being used by the claims division. These forms include:

  • Claim Plan Form – CL398
  • Interview notes forms WEB1362 & WEB1525
  • Call to/from Customer form – WEB 1751
  • Settlement form CL460

Please use CWMS notes in place of these forms where information needs to be captured for the purpose of file handling.

Road Maintenance Claims "Clearly Require Expert Evidence" Addressing Standard of Care

Written by admin on . Posted in ICBC Liability (fault) Cases.

If a road maintenance company unreasonably fails to maintain a road for which they are responsible they can be held civilly liable for resulting harm.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, discussing the complex nature of  such claims finding that such cases clearly require expert evidence to succeed.
In last week’s case (Collins v. Rees) the Plaintiff was injured in a 2005 collision when she lost control of her vehicle colliding with the side of the Massey Tunnel and was then struck by another vehicle.  She sued the contracting company responsible for maintaining that stretch of roadway arguing they failed to take proper steps to prevent the build up of ice.
Mr. Justice Williams noted that the claim must fail as there was no evidence to prove icy conditions caused the loss of control but further that cases such as this cannot succeed without expert evidence addressing the standard of care.  The court provided the following comments:
 
[36]         With respect to the issue of standard of care, I can find nothing in the record which could be said to constitute evidence going to prove the applicable standard of care of the defendants. To find that on the evidence before this court would require guesswork and speculation. I am unable to infer that standard from the evidentiary record.
[37]         Inference is the exercise of reaching a logical conclusion by reasoning from proven facts. Here, the proven facts from which the inference could be drawn are not present.
[38]         Insofar as applying my own knowledge of every day matters, that would not be an appropriate way to deal with this issue. Decisions as to the proper steps, measures and procedures to sign and maintain a highway system in a large metropolitan community are undoubtedly complex things. I am sure that engineers have spent their entire lives working on those very issues. The same applies with respect to issues such as drainage and vapour barriers. It is not reasonable to expect that a trial judge, as a layperson, will draw the inferences to establish this element. It is clearly a matter that requires expert evidence.
[39]         Accordingly, I find the plaintiff has adduced no evidence with respect to the element of the applicable standard of care and, as well, the issue of the defendants’ failure to meet that standard of care and that, therefore, the defendants’ applications must succeed.

Notice of Fast Track Action Does Not "Turn Any Action Into a Fast Track Action"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15.


One practice that has arisen since the new rules of court were introduced a few years ago relates to parties occasionally slotting actions into the fast track rule when the case is not suitable for fast track litigation.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this practice finding that a Plaintiff’s claimed damages (as opposed the Defendant’s perceived valuation) is a driving force.
In last week’s case (Narain v. Gill) the Plaintiff was injured in a motor vehicle collision.  In the early stages of litigation ICBC filed a Notice of Fast Track.  Prior to trial the Plaintiff made a formal settlement offer of  $200,000 and the Defendant provided a formal offer of $102,500.  Following trial damages of $116,737 were assessed.  At issue was the appropriate costs award.   Mr. Justice Meiklem had to decide whether the Notice of Fast track made the lesser Rule 15 costs scale applcable.  In deciding that the plaintiff’s valuation is a driving factor the court provided the following reasons:
[12]         Counsel for the third party argues that the plaintiff was notified that the third party considered this to be under Rule 15-1 with the filing of the notice and a matter is only removed from fast track by court order, either by the court on its own motion, or the application of any party and the court so orders, as provided by Rule 15-1(6)…
[17]         As I read Rule 15-1(2), the simple filing of a notice of fast track action in form 61 does not turn any action into a fast track action; rather, any party may file such notice “if this rule applies to an action” [my emphasis]. It is Rule 15-1(1) that defines when the rule applies, and it is important to note that the monetary criteria set out in subrule (1)(a) depends on the total amount of money claimed by the plaintiff for pecuniary loss and to be claimed by the plaintiff for non-pecuniary loss.
[18]         Counsel for the plaintiff in the case at bar communicated to counsel for the third party his belief that the claims being advanced exceeded the $100,000.00 limit. After that communication, there was no insistence on the action proceeding as a fast track action, and it would be reasonable to infer from third party counsel’s subsequent conduct in not adding the required notation to subsequent filings, agreeing to an extension of the trial estimate to five days and making a formal offer exceeding the $100,000.00 limit, that third party counsel had tacitly agreed with plaintiff counsel’s view that this was not an action to which Rule 15-1 should apply.
[19]         In short, I do not view the failure to add the required notation to the style of cause as an irregularity curable by amendment in order to conform to reality, as was done in the Foster case. This is not an action in its infancy that would benefit from an amendment making it clear that it is subject to Rule 15-1. This action was never clearly within the definition set out in Rule 15-1(1), and the filing of a form 61 notice did not change that.
[20]         That being said, hindsight will hopefully instruct counsel to clarify opposing counsel’s intentions, and, if necessary, seek an order by consent or otherwise to avoid similar circumstances arising in the future.

$4,000 Non-Pecuniary Assessment for 4 month long soft tissue injuries

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries caused by a Low Velocity Impact.
In last week’s case (Naidu v. Gill) the Plaintiff was involved in a 2008 rear-end collision.  The crash resulted in little vehicle damage.  The Plaintiff alleged he had injuries caused by the crash which were on-going at the time of trial.  The court found that the plaintiff was an “unreliable historian” and did not accept that the Plaintiff’s ongoing complaints were related to the crash.  The Court did, however, accept that the crash caused a modest soft tissue injury which resolved 4 months following the collision.  In doing so Mr. Justice Kelleher provided the following reasons:
[36]         Mr. Naidu suffered soft tissue injuries in the 2008 motor vehicle accident.  The injuries were not severe.  It is significant that no prescription medication was suggested or prescribed; Mr. Naidu has been able to work throughout the period since then.  No report of an injury was made to ICBC for over a year.  Mr. Naidu was able to travel to Asia on three occasions in 2010.  Mr. Naidu made three visits to a physician in early 2009 and made no mention of pain symptoms from the accident.  Finally, while the extent of the damage to the vehicle is not determinative for the reasons I just explained, it is not irrelevant that the damage to the vehicle was minor.  
[37]         The evidence does not establish causation for the symptoms persisting past approximately January 2009.  It is at least equally likely that the symptoms which resulted in his complaints in April 2009 and September 2009 were caused by physically demanding work as a security guard…
[39]         I conclude that the symptoms from the September 2008 accident persisted into early 2009.  The plaintiff has not discharged the onus of proving that his symptoms since that time were caused by the accident.  I have reviewed a number of authorities including Bagasbas v. Atwal, 2009 BCSC 512; Gradek v. Daimler Chrysler Financial Services Canada Inc., 2009 BCSC 1572; Ostovic v. Foggin, 2009 BCSC 58; and Ceraldi v. Duthie, 2008 BCSC 1812.
[40]         An award of $4,000 is appropriate.

Jaywalking Pedestrian Found 75% at Fault For Collision

Written by admin on . Posted in Uncategorized. 61 Comments on Jaywalking Pedestrian Found 7561 at Fault For Collision

Adding to this site’s archived caselaw addressing fault for collisions involving jaywalking pedestrians, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an impact.
In last week’c case (Sandhu v. John Doe) the Plaintiff was attempting to cross a four lane road way.  She was not crossing in a designated crosswalk.  The vehicles in the curb land came to a stop and the lead motorist motioned for her to cross.  As she proceeded into the second lane she was struck by the Defendant motorist.
The Plaintiff sued the motorist that struck her and also the motorist that signalled for her to cross.  The Court dismissed the claims against the latter motorist and further found that both the Plaintiff and the motorist that struck her were at fault for the impact.  In assessing 75% of the blame on the Plaintiff Mr. Justice Bowden provided the following reasons:
[18]         In my view, as the plaintiff was not crossing the road in a crosswalk, the plaintiff was required to yield the right of way to Ahmed’s vehicle. At the same time, Ahmed was required to exercise due care to avoid colliding with a pedestrian on the highway.
[19]         I find that the plaintiff was negligent in attempting to cross the street where there was no crosswalk, marked or unmarked, and, more significantly, by walking into the lane in which the defendant Ahmed was travelling, without looking to determine if a vehicle was approaching before entering that lane.
[20]         The defendant Ahmed was also negligent in passing two stopped vehicles when the possibility of a pedestrian attempting to cross was reasonably apparent, even if he believed that the vehicles were also intending to turn into the mall after they stopped.
[21]         In my view, no liability attaches to John Doe. There is no evidence that the plaintiff made any attempt to locate John Doe. Even if he had been located, the mere act of indicating to the plaintiff to cross in front of his vehicle, in my view, would not attract liability nor relieve the plaintiff of her duty of care…
[25]         Considering the conduct of the plaintiff and the defendant Ahmed and the surrounding circumstances, I have concluded that a reasonable apportionment of liability is 25% to the defendant Ahmed and 75% to the plaintiff.

Supreme Court Holds Failure To Disclose HIV Status Can Still Vitiate Sexual Consent In Canada

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 79 Comments on Supreme Court Holds Failure To Disclose HIV Status Can Still Vitiate Sexual Consent In Canada

In 1998 the Supreme Court of Canada held that failure to disclose HIV positive status could vitiate consent making otherwise consensual sexual encounters criminal in nature and further exposing the non-disclosing party to civil suits for damages for sexual assault.  This reasoning has been controversial over the years and the Supreme Court of Canada revisited the issue in reasons for judgement released today.
In today’s case (R v. Mabior) Chief Justice McLachlin held that failure to disclose can still vitiate consent but not in all circumstances adding a “significant risk” factor to the analysis.  The Court provided the following reasons:
[104]                     To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status.  Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation).  A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV.  On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used.  However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play.
 

Court Considers It "Unsafe" To Rely on Defence Doctor's Opinion In Chronic Headache Case

Written by admin on . Posted in ICBC Headache Cases, Uncategorized. 51 Comments on Court Considers It "Unsafe" To Rely on Defence Doctor's Opinion In Chronic Headache Case

In my continued efforts to highlight judicial scrutiny of expert testimony in BC injury litigation, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, finding an expert “displayed a somewhat compromised objectivity” and that it was “unsafe” to rely on his opinion.
In this week’s case (Smith v. Moshrefzadeh) the 54 year old plaintiff was injured in a rear end collision in 2008.  As a result she suffered from soft tissue injuries to her neck and shoulders which caused chronic headaches.  At trial the Defendant produced an orthopaedic surgeon who provided opinion evidence that the probability that the crash resulted in the chronic symptoms was “negligible“.  Madam Justice Dardi did not accept this evidence and provided the following critical comments:
[62]         I accept the opinions of Dr. Helper, Dr. Robinson and Dr. Craig and, where they differed, I prefer their opinions to that of Dr. Wahl.  I found each of Dr. Robinson, Dr. Helper, and Dr. Craig, who are very well-qualified and experienced practitioners, to be careful and fair-minded in their testimony.  Their opinions, without exception, were not weakened in cross-examination.  Each of the doctors persuasively discounted Dr. Wahl’s opinion that the degeneration of Ms. Smith’s cervical spine shown on her x-rays is the cause of her current symptoms.  While Dr. Wahl is no doubt a well-qualified orthopaedic surgeon, his practice is focused on the surgical management, not the medical management, of the spine.  Dr. Wahl clearly had not reviewed Ms. Smith’s medical records as carefully as the other expert witnesses and as I mentioned earlier his report was predicated on a misconception as to the timing  of the onset of Ms. Smith’s symptoms.  Given the significant concessions he made in cross-examination and the Court’s impression that he displayed a somewhat compromised objectivity in preparing his report, I consider it unsafe to rely on his opinion.
In assessing non-pecuniary damages at $80,000 the court provided the following reasons:
[65]         In summary on this point, Ms. Smith’s chronic headaches and neck and upper back pain and discomfort which were caused by the accident have persisted for some three and a half years.  She experiences episodic flare-ups.  The pain fluctuates in intensity and is aggravated by physical activity.  Ms. Smith’s symptoms are exacerbated by the physical demands of the commercial salmon and herring fisheries.  She can no longer engage in the prawn fishery.  She has constant and daily headaches which vary in intensity.  The headaches are usually of a mild to moderate severity, but at least a few times per week they become severe enough that she needs to rest in a quiet environment.  For the most part, however, even though she describes feeling like she is “hanging on by a thread”, she forces herself to carry on with her fishing work and with maintaining her household routines and family life.  In order to carry on, she takes prescription medication on a daily basis.
[66]         There is a possibility that, by undertaking the treatments recommended by the specialists who testified at trial, Ms. Smith will experience some improvement in her symptoms and will be able to manage her pain and discomfort more effectively.  However, I find that it is unlikely that she will make a full recovery to her pre-accident status…
[76]         I have reviewed all of the authorities provided by both counsel.  Although the cases are instructive, I do not propose to review them in detail as they only provide general guidelines.  In broad terms, the cases relied upon by the defence involve plaintiffs with symptoms that had significantly improved by trial.  In considering Ms. Smith’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.