IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100125

Docket:
M071139

Registry: Vancouver

Between:

Jolanta Smusz

Plaintiff

And

Wolfe Chevrolet Ltd. and Ryan Fritz
Wright

Defendants

Before: The Honourable Madam Justice Loryl Russell

Reasons for Judgment

Introduction

[1]            
The plaintiff, Jolanta
Smusz, was involved in a motor vehicle accident on October 8, 2006 between
Bridge River and Kamloops, BC on Highway 24. 

[2]            
Ms. Smusz was hit by
the defendant Wright’s car when he was searching for his sunglasses in the
glove compartment while driving at highway speed.  Mr. Wright’s car
crossed the centre line.  Ms. Smusz attempted to avoid his car by steering to
her right and instead of hitting her head-on, Mr. Wright sideswiped her car,
causing it to veer left across the highway into a ditch where she hit an
embankment.

[3]            
Both airbags in Ms.
Smusz’s car deployed.  She was initially trapped in the driver’s side of the
car but was able to exit through the passenger door.

[4]            
Ms. Smusz’s two-year old
Toyota Matrix was written off with repair costs estimated at $17,000.  The
defendant’s car was also a total loss after flipping down the centre of the
highway.

[5]            
Liability is admitted
but causation and the extent of the injuries and psychological sequelae
suffered by the plaintiff are at issue.

[6]            
The defendants also
allege a failure to mitigate by the plaintiff.

Facts

[7]            
The plaintiff is a 46-year
old immigrant from Poland.  She arrived in Canada in 1990 with her husband, son
and daughter.

[8]            
In Poland, she attended
public school for eight years and then a technical school for five years,
specializing in agriculture.  She did not work in agriculture but obtained a
job as a cashier until she had her children.  Her employment could be
characterized as unskilled.

[9]            
On arrival in Canada,
she was unemployed.  She looked after her children and considered herself a
homemaker. 

[10]        
She and her husband had
a difficult relationship which she found stressful.  He left in 2001 but they
reconciled sporadically until their divorce in 2004.  She had financial
difficulties following their several separations because he did not pay any
support to her.  In 2001, she was prescribed Ativan, an anti-anxiety medication,
to assist her in dealing with her marital difficulties.

[11]        
Ms. Smusz suffered low
back pain in 2001 which was treated by a chiropractor for a month.  Her pain
resolved after this treatment.

[12]        
In January 2005, Ms.
Smusz complained of anxiety to Dr. Tomaszewski.  Later that year she went to a
walk-in clinic complaining of stress related to multiple phone calls from her
ex-husband.  She was prescribed one course of anti-anxiety medication but when
she told her husband she would call the police for a restraining order if he
continued to harass her, he stopped calling and her stress resolved.  There was
no evidence she renewed the prescription for the medication. 

[13]        
Ms. Smusz’s first
language is Polish.  Her English skills are very limited and for the most part
she has remained sequestered in her own language community.

[14]        
Ms. Smusz did not go to
work even after her marriage foundered because she wished to stay home with her
children.  Several years before the accident, she worked part-time with a
friend, Mirka Konarczewski, doing housework.  They talked about setting up a
business which would employ other cleaners and allow them to make some profit
from their work.  However, Ms. Konarczewski moved to Langley, BC away from
the area in which they both lived and the plan was not pursued.  During the
time Ms. Smusz worked with Ms. Konarczewski, she earned between $10 and $12 per
hour.

[15]        
Because Ms. Smusz was
not interested in working full-time while her younger child remained in school,
she took a position with a landscaping company, Acura Landscaping, for three
days a week, eight hours a day.  She was paid $12 per hour.  The work was
steady during the spring, summer and fall but it was often the case that there
would be a winter layoff for three months.  In any event, Ms. Smusz would have
been eligible for Employment Insurance benefits over the winter layoff.

[16]        
The landscaping work
was moderately heavy labour and involved raking, pulling weeds, lifting bags of
garden waste and some degree of physical fitness.  The heavier work was
performed by the male employees.

[17]        
She worked through the
winter of 2005-2006 but her employer gave evidence she may have been subject to
a winter layoff in 2006-2007.  She worked up to the accident date of October 8,
2006 and did not return to work thereafter.  In 2005, from May to December, she
earned $12,380.  To the date of the accident in 2006, she earned $10,737
commencing January 2006.  I note she worked her regular 24 hours per week for
each week from January 2006 to the date of the accident with no time off for
vacation (Exhibit 2, Tab 7).  This totals 37 weeks.

[18]        
Had she been able to
work all 52 weeks, she would have earned $14,976 annually. 

[19]        
The evidence of the
witnesses was consistent that Ms. Smusz was a vivacious, energetic “life of the
party” person.  She was known as someone who enjoyed socializing, dancing and
entertaining.  She enjoyed baking cakes for birthdays, and celebrating with her
friends in the Polish community.  Certainly the pre-accident pictures exhibited
in this proceeding show her to be an active, positive person and this
impression was substantiated by each of the witnesses who testified on her
behalf.

[20]        
She was not involved in
any organized social activities or volunteer organizations prior to the
accident.

[21]        
Ms. Smusz had a
relationship with her boyfriend which was satisfying to her.  She lived for her
children and worked at a low level job that allowed her to do all the housework
and cooking for them while they did their schoolwork. 

[22]        
The accident occurred
on Highway 24 outside Kamloops, BC.  On October 8, 2006, as the defendant’s car
came head-on towards her, Ms. Smusz had thoughts of dying and leaving her
children alone.  She thought she smelled smoke and that the car was on fire
post-impact.  When the driver’s side door would not open, she thought she was
trapped inside.  A passing motorist opened the passenger door and helped her
out.

[23]        
The weather in October
was chilly at the location of the accident.  When Ms. Smusz exited the
car, she was cold and nauseated, with numbness in her left hand.  She also felt
sleepy and the witness, Jennifer Collins, who assisted her at the scene,
testified that she covered Ms. Smusz with a blanket and prodded her awake as
she nodded off.  Ms. Collins observed that Ms. Smusz was shivering and in
obvious pain.

[24]        
More than 45 minutes
passed before the ambulance reached Ms. Smusz.  She was thoroughly chilled by
that time but despite feeling very cold, the ambulance crew noted that she had
an irregular pulse which fluctuated from 87 beats per minute to as high as 150
beats per minute nearly one hour after the impact.  Her chief complaint, as
reported to the ambulance crew, was neck pain.

[25]        
The doctors at
Clearwater Hospital diagnosed her with soft tissue injuries and discharged her
with Ibuprofen and a prescription for Tylenol 3.

[26]        
Her boyfriend took her
to his place at Bridge Lake where she remained for approximately one week
before her son came to drive her back to her home in Burnaby.  She could not
recall how long she stayed at her boyfriend’s place but her family doctor, Dr.
Tomaszewski, noted her son drove her home to Burnaby seven days after the
accident.

[27]        
Ms. Smusz found the
drive home to be frightening and her son testified that she saw every oncoming
car as a potential head-on collision risk.  She was constantly telling him to
slow down while he tried to allay her fears by driving with extreme caution. 
Once she was home she continued to be fearful of driving and suffered
nightmares about the accident.  However, she forced herself to resume driving
about three weeks after the accident and although she has been transformed into
an extremely cautious driver, she is able to drive.  Her nightmares have
reduced in number to about one a month currently.

[28]        
Ms. Smusz’s daughter,
Ewelina, testified that her mother was not able to teach her to drive a year
and a half after the accident because Ms. Smusz was made so anxious by the
process that she could not continue.  Ewelina Smusz had to take professional
driving lessons to learn to drive despite the fact that her mother had
successfully taught her brother to drive some years before.

[29]        
Ms. Smusz’s son, Marek,
testified that when his mother is a passenger she continues to exhibit anxiety
over such matters as speed and being close to the centre line.

[30]        
Ms. Smusz’s evidence
about the feelings she experiences when driving past the scene of the accident
was somewhat confused.  Certainly, shortly after the accident she found passing
the accident site to be frightening.  I am unclear whether this remains a
problem today although if her fear persists it seems as if she has found a way
to deal with this fear by closing her eyes as her boyfriend drives her past the
site and she is now able to pass the site without incident.

[31]        
Initially, her injuries
included chest bruising, abrasions and an injury to her knee.  These resolved
relatively quickly, with the knee aided by a number of sessions of
physiotherapy following the accident.

[32]        
The most significant physical
injuries from the accident were a disc herniation in her neck and continuing
low back pain.  The herniation has resulted in referred pain down her arm to
her hand.  It appears that some improvement to the pain in her arm and hand
could be effected by surgery but such surgery is invasive and carries some
risk.  Neither the pain in her neck nor the low back pain from which she
suffers would be resolved by surgery.  As a single woman without resources and
still responsible for the support of her daughter, she is fearful of possible
surgical complications which could further impede her healing.  To date, she
has chosen not to have surgery.  In the result, she is left with continuing
pain and disability.

[33]        
As well, there is some
disagreement among the experts about whether she is an appropriate candidate
for surgery, partly due to the fact that she is physically deconditioned.  At
this point, however, since her neck and arm pain are not only not improving but
are worsening, surgery may be the only helping mechanism open to her despite
her wishes to the contrary.

[34]        
Currently, her neck
injury causes dizziness if she moves her head too quickly, or remains in a
static position with her head down for too long.  This is an improvement, since
in the first six months she was constantly dizzy and often nauseated as a
result.  Her insomnia has also improved with the Noritryptiline she was
prescribed shortly after the accident.  She still suffers from headaches about
two times a month where for the first six months following the accident she had
severe headaches almost daily.

[35]        
To assist with her
fears and nightmares following the accident, Ms. Smusz went for five sessions
of psychological counselling with Dr. Chuck Jung.  She was entitled to some 12
sessions which would have been paid for by ICBC and Dr. Jung called her to
follow up, but she did not attend for the remaining seven sessions.  She
testified that she did not understand she should continue and she was concerned
about paying for the sessions out of her limited resources.  She was able to
benefit from the sessions she did attend since she returned to driving
relatively quickly.

[36]        
There is also no doubt
the plaintiff suffers from depression.  She had had brief episodes of reactive
depression surrounding the break-up of her marriage and the stress of some harassment
from her husband following their final separation.  However, in neither
instance was the depression deep or long-lasting.  The depression which has
accompanied the pain of her injuries has no doubt affected her ability to
recover from her injuries and her ability to follow recommendations respecting
active steps to take which might have speeded her improvement.

The Lay Evidence

[37]        
The plaintiff called
several friends and her two children to testify.  Not surprisingly, all the
witnesses indicated that they hoped for a good outcome from the trial for the
plaintiff.  The plaintiff’s daughter, in particular, testified that she hoped
the financial result of the trial would benefit the family since money had
always been a problem.

[38]        
I find nothing sinister
about this evidence.  I find it supports the candour and good faith of the
witnesses and I would find it suspicious were they to deny that they hoped for
a good outcome for the plaintiff. 

[39]        
The witnesses all
stated that the plaintiff’s former energy and positive approach to life had
changed and she was no longer the optimistic person she had been before the
accident. 

[40]        
The plaintiff’s son and
daughter stated that although their mother had improved since the accident, she
still exhibited nervous behaviour when driving and was unable to look after
them as she did before her injuries.  Both the plaintiff’s children testified
they had tried to read the medical experts’ reports to the plaintiff but they
could not translate or explain the technical terms contained in the reports. 
There was no evidence they had been able to outline the experts’ medical
recommendations to the plaintiff.

[41]        
Marek and Ewelina Smusz
indicated that they were both required to help the plaintiff with cooking and
cleaning which she had always done in the past.  Marek Smusz advised that
he now performs about 10 hours of housework a week.

[42]        
Marek Smusz said that
it seemed as if all the fun in the plaintiff’s life was gone.  He described her
before the accident, as a regular person, smiling, happy and someone who cared
about others.  Now she does not go out, and she wastes time sitting at home.  Where
before she enjoyed a relationship with a boyfriend, now she does not care.

[43]        
The plaintiff’s boyfriend,
Mr. Dyczkowski, testified that their relationship had been negatively affected
by the plaintiff’s depression, and by her lack of ability to take part in
outdoor activities following the accident.  Previous to the accident, they had
hiked and enjoyed outdoor activities.  He was candid that he had taken her to
Mexico twice since the accident to try to help her morale but that the trips
had not been successful on that front.  With respect to driving, he noted that
the plaintiff had showed some improvement since the accident but was still a
“jumpy” passenger.

[44]        
Mr. Dyczkowski stated
that it was hard to say whether he and the plaintiff were still in a
relationship.  Certainly it appeared to me that the injuries which followed the
accident have adversely impacted the romantic relationship which formerly
existed between the plaintiff and Mr. Dyczkowski.

[45]        
 The lay evidence does
not support the assertion that the plaintiff participated in a substantial
number of activities before the accident.  While there was some evidence she
had participated in camping with friends, the last date on which she had camped
with a group was given by Ms. Konirzewska as approximately 2002.   The
plaintiff was described as highly energetic by her friends and as someone who
enjoyed dancing and partying and would always bake a cake for a birthday party,
something she no longer does. 

The Expert Evidence

[46]        
A number of experts
gave evidence at trial including for the plaintiff, Dr. Tomaszewski, a
family practitioner; Dr. Ancill, a psychiatrist; Dr. Hudoba, a neurologist; Dr.
Jung, a psychologist; Dr. Vaisler, an orthopod; Russ McNeil, an occupational
therapist with a specialty in functional capacity evaluation; Dr. Pullyblank,
a psychologist with expertise in the psychological and vocational assessment of
residual employability, and Robert Carson, an economist.

[47]        
For the defendants, the
following experts were called:  Dr. Arthur, an orthopod; and Dr. Davis, a
psychiatrist.

[48]        
Among the doctors who
were called both by the plaintiff and by the defendants, it is common ground
that the plaintiff suffered injury in the accident.  I note that Dr. Arthur,
the orthopod called by the defendants, stated as follows:

Her complaints
of neck and left-sided pain have been persistent since the motor vehicle
accident and thus I believe the motor vehicle accident does play a role in her
ongoing complaints and may well be responsible for the C6-7 disc protrusion.

[49]        
It also appears to be
common ground among the doctors experienced in physical medicine, that the
plaintiff is more likely than not to continue to suffer from intermittent
annoying and disabling back pain from time to time for the foreseeable future.

[50]        
In a recent report
dated February 2, 2009, Dr. Hudoba made the following physical findings
respecting Ms. Smusz’s continuing symptoms:  chronic musculoskeletal pain of
the neck and lower back; moderate right paracentral disc herniation at C3-4 on
the right side and moderate paracentral disc protrusion at C6-7 on the left
causing the irritation of the left C7 root; and a possible bulging lumbar disc
irritating the lumbar roots.

[51]        
Dr. Hudoba concluded
that the neck and left arm pain Ms. Smusz continues to suffer are a result of
the injuries she sustained in the accident of October 8, 2006 and her low back
pain might have been aggravated by the injuries she sustained in the October 8,
2006 accident.  Dr. Hudoba was also the physician who recommended caution to
Ms. Smusz in any exercise programme she undertook.  She was:

. . . to avoid any
activity where there can be possibility [sic] of extensive and sudden motions
of the neck or prolonged flexion or extension of the neck.  The examples would
by [sic] chiropractic manoeuvres on the neck, fall at skiing, [sic] fall at
climbing,[sic] fall from the horse, [sic] cycling with low lying handles,
swimming with neck extension and similar.  At situations like these, if the
neck is overly bent or twisted, the herniated disc could possibly become larger
and press and injure the nerve root or even the cord.

[52]        
Dr. Hudoba administered
four trigger point injections into her trapezius muscles which were to be
accompanied by physiotherapy to improve the strength of her core muscles.  He
also prescribed painkillers and anti-inflammatories.

[53]        
The plaintiff found
some relief from the injections but did not undertake the simultaneous
physiotherapy recommended.  Neither did she complete the series of injections
prescribed by Dr. Hudoba.  Whether this was due to her poor comprehension of
English and resulting confusion over her appointments, or because she was unable
to pay for the injections, was not clear.  However, I do not find fault with
her because I find she was unable to clearly understand much of the complicated
and occasionally conflicting medical information she was receiving.

[54]        
However, it remains the
case that Dr. Hudoba stated that in his view, while it was somewhat speculative
to say, it was likely the plaintiff’s neck pain would have improved more had
she finished the series of injections and attended for physiotherapy as he had
recommended, but he could not say her arm pain would have improved.  It should also
be noted that the plaintiff had earlier attended some 35 session of
physiotherapy with some improvement noted. 

[55]        
In this respect, as in
some others, her language difficulties make her a thin-skulled plaintiff.  As
pointed out by her counsel, with respect to her failure to complete the series
of injections recommended by Dr. Hudoba, I note Dr. Hudoba is of Czech origin
and his English is accented and not always easy to understand.  He communicated
with the plaintiff in English without an interpreter present and I believe it
is entirely possible that the plaintiff did not comprehend his instructions to
her or the importance of completing the series of injections.

[56]        
Dr. Vaisler, an
orthopaedic surgeon, saw the plaintiff for an independent medical examination
on October 23, 2008.  His findings are very similar to those of Dr. Hudoba but
his recommendations differed somewhat.  Dr. Vaisler believes the plaintiff
would be assisted by a “regular programme of neck strengthening and postural
exercises … and would benefit from attending a neck and back education
programme to teach her how to minimize the pain she is experiencing and how to
avoid acute exacerbations of pain.”

[57]        
Once again, I note the
conflict between this advice and that given by Dr. Hudoba which I have
quoted above.

[58]        
Dr. Vaisler also
suggested that a cervical fusion at C6-7 could possibly give the plaintiff
significant relief from the pain radiating down her left upper arm, the spasm
on the left side of her neck and left trapezius muscle and the sensory
abnormalities in her left hand.  However, he also noted that even with surgery,
it is more likely than not that Ms. Smusz would continue to experience
intermittent annoying neck pain which would likely not be significantly
improved by neck surgery.

[59]        
Dr. Vaisler also opined
in cross-examination that he believed the plaintiff was capable of some light
work which would include a combination of sitting and standing.  It was his
view that, if the plaintiff were to follow his recommendations for exercise,
she would possibly be able to return to work.  He did not suggest any actual
job to which she could return and, of course, it was not within his field of
endeavour to actually define employment which Ms. Smusz could perform with her
existing limitations.  He was clear that the plaintiff could not return to
landscaping due to her low back symptoms.

[60]        
Dr. Vaisler did not
discuss his or any treatment recommendations with the plaintiff in the course
of his examination.  This was unfortunate as an interpreter was present who
could have assisted the plaintiff in understanding Dr. Vaisler’s
recommendations. 

[61]        
Dr. Arthur, an
orthopaedic surgeon, testified for the defence.  Despite his view that exercise
was the answer for the plaintiff, he also opined that a surgical outcome would
likely assist with the symptoms in the plaintiff’s arm and hand.  However, he
agreed with Dr. Vaisler that the neck pain would not be significantly relieved
by surgery, nor would the dizziness and low back pain suffered by the
plaintiff.  Dr. Arthur was of the view that the plaintiff was not a good
candidate for surgery because she had not followed the recommendations for conservative
treatment options.

[62]        
Dr. Arthur did state
that the injuries suffered by the plaintiff in the motor vehicle accident of
October 8, 2006 “played a role in” her pain and disability.  I take this to
mean that Dr. Arthur finds the motor vehicle accident is the most likely cause
of the C6-7 disc protrusion, the major factor in her neck and arm pain.

[63]        
Dr. Ancill was retained
by the plaintiff as a psychiatrist with a special interest in trauma.  He has
both written and taught on the psychiatric consequences of trauma including
Post Traumatic Stress Disorder (“PTSD”) and chronic pain syndromes.  He has
also treated patients suffering from psychiatric consequences of trauma for
over 20 years.

[64]        
In his first report of
August 8, 2007, Dr. Ancill found that the plaintiff met and exceeded the
DSM-IV-TR criteria for PTSD and also suffers from a related major depression of
moderate severity.  Both of these conditions resulted from the October 8,
2006 accident.  In addition to the medical conditions from which the plaintiff
suffers, he also found that she had developed a pain disorder associated with
psychological factors.  The headaches from which the plaintiff continues to
suffer, he viewed as a consequence of the trauma and stated that such headaches
were difficult to treat.  Those diagnoses were confirmed in his subsequent
report of September 2, 2008.

[65]        
Dr. Ancill did note
some improvement in the plaintiff’s PTSD and in her depression over the two
years in which he examined her.  He felt that she would benefit from further
psychiatric assessment and from psychological counselling and was surprised to
learn that the plaintiff had not completed her series of treatments with the
psychologist, Dr. Jung. 

[66]        
The diagnoses of PTSD
and of depression were based on Dr. Ancill’s considerable experience in the
field and his clinical observations of the plaintiff along with the use of
diagnostic tools such as the Hamilton Depression Scale to measure the severity
of the depression and the criteria set out in DSM-IV-TR.  He was clear that he
did not use either of those tools as a “shopping list”, but performed an
independent assessment of the plaintiff.  Dr. Ancill examined her on two
occasions and reached his conclusions by taking a clinical history and making a
mental state examination.  He also conducted interviews of two collateral
witnesses: her son, Marek and her boyfriend, Mr. Dyckowski.

[67]        
I found Dr. Ancill to
be a helpful and reasonable witness.  While he was confident about the
reliability of his opinion, he was also open to suggestions on
cross-examination that the plaintiff’s failure to follow up on more psychiatric
assistance and to complete her counselling sessions with Dr. Jung could have
slowed her recovery and avoided “entrenched behavioural patterns”.

[68]        
Dr. Jung was consulted
by the plaintiff and was qualified as an expert psychologist with particular
interest in cognitive behavioural therapy.  His reports were dated February 27,
2008 and February 24, 2009.

[69]        
Dr. Jung recommended
the plaintiff attend 12 sessions with him.  However, she did not continue after
she had completed five sessions.  In cross-examination, he stated that her PTSD
would have improved and she would have been better able to cope with her pain
had she completed her sessions.  He indicated that he knew finances were a
concern for her but he was not aware of how her sessions were paid for. 

[70]        
The sessions with Dr.
Jung were $160.00 each.  I inferred from Dr. Jung’s evidence that he
believed the plaintiff’s concerns about money prevented her from completing the
12 sessions.

[71]        
He found that the
plaintiff met the diagnosis of PTSD, although in his later report he described
the PTSD as mild to moderate.  In that later report, he noted that her
depression (earlier described as mild) was increasing.  He stated, too, that
the PTSD and depression were interfering with her ability to cope with her pain
and it was his view she had developed a pain disorder.

[72]        
It is Dr. Jung’s view
that the plaintiff requires further psychiatric follow-up with a view to
determining whether anti-depressants would assist her.  He also recommended 25
additional counselling appointments and referral to a multidisciplinary pain
clinic.

[73]        
Dr. Pullyblank, a
psychologist, saw the plaintiff for psychological and vocational assessment. 
His particular interest is residual employability.

[74]        
In his report dated
March 3, 2009, Dr. Pullyblank opined that the plaintiff continues to suffer
from PTSD and mild to moderate depression with her symptoms exacerbated by a
high debt load and uncertain financial future.  He found that she was concerned
about the medical issues surrounding any surgical resolution of her symptoms and
that these concerns were complicated by any delay of the resolution of her
financial situation if she were to have surgery.

[75]        
It was Dr. Pullyblank’s
conclusion that the plaintiff is unemployable at her present level of physical,
psychological and cognitive functioning.

[76]        
Among the physical
barriers, he noted her generalized pain disorder which caused her perception of
pain to be heightened which, coupled with her pain avoidance behaviour, limited
her activity.  Finally, the dizziness and nausea which occur when she moves her
head, further limit her movement.

[77]        
Dr. Pullyblank opined
that the plaintiff’s emotional functioning is impaired by PTSD, an anxiety
disorder.  The presence of such anxiety would likely interfere with the usual
coping skills required to maintain performance and composure when meeting day-to-day
challenges in a job.

[78]        
He stated that the
cognitive difficulties facing the plaintiff result from PTSD and chronic pain. 
He finds the plaintiff to be in a high state of arousal which complicates her
ability to concentrate and remember.  If she were to attempt a non-physical
job, he points out the additional challenges of trying to learn new working
procedures in English, a language in which she has only rudimentary skills
and         about which she feels she is not capable of improvement.  Any
training for jobs which would interest her cannot commence until and unless she
has resolved the physical and emotional problems she is currently experiencing.

[79]        
Dr. Pullyblank endorses
the plaintiff’s needs for further sessions with Dr. Jung and recommends
consulting a physiotherapist or kinesiologist to assist in developing an
exercise programme consistent with the plaintiff’s physical condition.

[80]        
Dr. Davis is a psychiatrist
who prepared a medical-legal report for the defendants and was called for
cross-examination at trial. 

[81]        
Dr. Davis’ report
differed substantially from those of all other experts.  It is his opinion that
none of the plaintiff’s current emotional difficulties stems from the motor
vehicle accident.  He is firmly of the view that her depression is solely
attributable to her financial problems, her lack of a supporting husband and
her limited skills in English.

[82]        
To support his
position, Dr. Davis pointed to the two reactive depressions which had affected
the plaintiff before the accident as establishing an “ongoing depression” and
therefore her current symptoms were not causally related to the motor vehicle
accident of October 2006.

[83]        
I note that when he
wrote his report, Dr. Davis had not reviewed Dr. Tomaszewski’s notes of
appointments with the plaintiff one week following the accident which recorded
the occurrence of nightmares and acute anxiety.  Dr. Davis stated that
these symptoms were important but appeared to minimize them by indicating they
would only be a problem caused by the accident in the first six months or so,
at the same time as her soft tissue injuries should have been resolving.

[84]        
I have reviewed Dr.
Davis’ testimony and find it to be argumentative, unyielding and seriously at
odds with what I view to be the preponderance of other and more credible
medical evidence.  I do not accept his findings.

Non-Pecuniary Damages

[85]        
The purpose of
non-pecuniary damage awards is to compensate the plaintiff for “pain,
suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai,
2007 BCSC 1023 at para. 134; see also Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452; and Kuskis v. Tin,
2008 BCSC 862 [Kuskis].  While each award must be made with reference to
the particular circumstances and facts of the case, other cases may serve as a
guide to assist the court in arriving at an award that is just and fair to both
parties: Kuskis, at para. 136. 

[86]        
There are a number of
factors that courts must take into account when assessing this type of claim.  Madam
Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet,
2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para.
46:

[46]      The inexhaustive list of common
factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that
influence an award of non-pecuniary damages includes:

(a)        age of
the plaintiff;

(b)        nature
of the injury;

(c)        severity
and duration of pain;

(d)        disability;

(e)        emotional
suffering; and

(f)         loss or impairment of life;

I would add the
following factors, although they may arguably be subsumed in the above list:

(g)        impairment
of family, marital and social relationships;

(h)        impairment
of physical and mental abilities;

(i)         loss of
lifestyle; and

(j)         the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, Liang and Zheng, 2005 BCCA 54).

[87]        
The plaintiff was 43
years old at the time of this accident.  She suffered injuries which, although
not requiring more than a brief visit to the hospital, were nonetheless
significant.  The medical evidence was mostly consistent:  her physical
injuries include moderate right paracentral disc herniation at C3-4 on the
right side and moderate paracentral disc protrusion at C6-7 on the left causing
irritation of the left C7 root; and a bulging lumbar disc irritating the lumbar
roots, all of which result in chronic left-sided neck, arm and low back pain,
dizziness and headaches.  She suffered from PTSD, now substantially resolved,
but still suffers from insomnia, occasional nightmares, depression and chronic
pain some three years after the accident.

[88]        
The chronic pain caused
by the injuries received in the accident has resulted in depression, no doubt
complicated by her difficult financial situation, but the plaintiff was happy
and energetic before the accident notwithstanding the fact that she had very
little money. 

[89]        
She was able to work in
a job which did not require great skill and which did not pay well but in which
she could have continued for the indefinite future.  It gave her some income
and gave her the sense of participating in her family’s finances.

[90]        
The evidence of her
friends and family support the substantial change she has undergone as a result
of the accident.  From a positive, lively person who enjoyed participating in
her community, she has become somewhat reclusive and quiet and it appears she
may even lose her romantic relationship because her physical limitations
interfere with the activities she used to enjoy with her boyfriend.

[91]        
While she had suffered
brief episodes of depression in the past, I am satisfied they were reactive
depressions and were fully resolved at the time of the accident.  I have no
doubt that because she has suffered depression in the past, she was vulnerable
to depression, but she is the thin-skulled plaintiff here rather than a
crumbling skull plaintiff.  However, I find that the depression which followed
the accident and her chronic pain means that she is at risk of developing an
even more severe depression in the future.

[92]        
Immediately following
the accident, the plaintiff also had chest bruising and abrasions which
resolved quickly.  Her knee injury troubled her for about six months but is now
resolved.

[93]        
There is a possibility
she will require surgery in the future to address the herniation at C6-7 since
the conservative treatment measures employed so far have not provided the
plaintiff with any relief.  She has resisted this surgery because, even if it
is successful, she will be left with continuing neck pain so resort to surgery
would only be a desperate measure if she begins to suffer nerve damage which
follows from the herniation or if her chronic pain worsens.

[94]        
The plaintiff’s anxiety
is worsened by the possibility she will need surgery in the future.

[95]        
The plaintiff is also
less able to perform her household work than she was and has received
assistance from her children.  When she does do her housework, she does it more
slowly and with some pain.  This is a substantial change from the enthusiastic
homemaker she was before the accident. 

[96]        
I have considered the
plaintiff’s loss of housekeeping capacity and the help she has been given and
will continue to receive from her children under this head of damages and would
assess the loss at $10,000.

[97]        
Considering the factors
listed above, and upon reviewing the case law provided by both counsel, I find
that an appropriate award of non-pecuniary damages is $100,000.00, including
the loss of housekeeping capacity.

Past Wage Loss

[98]        
Ms. Smusz would likely
have continued working for Acura Landscaping but for the accident.  At that job
she earned $12.00 per hour.

[99]        
I accept the defendants’
analysis that the plaintiff’s gross past wage loss over the two years and 10
months preceding trial would amount to $28,500.00, adjusted for seasonal
lay-offs.  However, the plaintiff would also have qualified for Employment
Insurance benefits of approximately $2,000 for each of the three seasonal
layoffs she would have experienced. 

[100]    
These benefits would
add an additional $6,000.00 to her earnings for a total of $34,500.00 gross
earnings.

[101]    
On the basis of
Lines v. W & D Logging Co. Ltd, 2009 BCCA 106, 90 B.C.L.R. (4^th)
203, I order that the past wage loss be attributed to the year in which it was
earned for the purposes of calculating the net wage loss as required by the Insurance
(Motor Vehicle) Act.  I note that this approach has been followed by Madam
Justice Boyd in Wittenberg v. Ellis, 2009 BCSC 1561.

[102]    
Given the minimal
income earned by the plaintiff, her personal deduction and her ability to take
an “equivalent to married” deduction for her daughter, I assume that there will
be almost no tax deducted from the series of annual wage losses awarded to the
plaintiff.  However, as suggested by counsel, I will leave the net income
figure for past wage loss to be agreed upon.  Failing agreement, counsel may
apply. 

Loss of Earning Capacity

[103]     In Hooper v. Nair, 2009 BCSC 862, I
set out the elements to be proved to demonstrate a loss of capacity as follows,
at paras. 119-125:

[119]    In order to be successful under
this head of damages, the plaintiff must prove a substantial possibility of
future income loss:  see Parypa v. Wickware, 1999 BCCA 88, 169 D.L.R.
(4th) 661; Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133, [1990] B.C.J.
No. 1158 (C.A.); Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th)
152.

[120]    The purpose of this damage award is
to compensate the party for the loss of earning capacity as a capital asset,
not to compensate for the lost earnings themselves:  see Palmer v. Goodall
(1991), 53 B.C.L.R. (2d) 44 at 59, [1991] B.C.J. No. 16 (C.A.); Parypa
at para. 63.

[121]    In considering this claim, a court
must determine the extent of the future loss of income-earning capacity by
taking into account all substantial possibilities and assessing the likelihood
of their occurrence, based on the evidence: Parypa at para. 67; Steward
at para. 17.

[122]    There are, of course, inherent
difficulties in assessing such damages which were recognized by Justice Dickson
(as he then was) in Andrews, where he stated at 251:

We must now gaze
more deeply into the crystal ball.  What sort of career would the accident
victim have had?  What were his prospects and potential prior to the accident? 
It is not loss of earnings, but, rather, loss of earning capacity for which
compensation must be made: A capital asset has been lost: what was its value?

[123]    To assist in this assessment, there
are four considerations which are often cited in determining the value of the
loss and are set out in the decision of Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353, [1985] B.C.J. No. 31 at para. 8 (S.C.) [Golaiy]:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The
plaintiff is less valuable to himself as a person capable of earning income in
a competitive labour market.

[124]    While a first step in this
determination may involve some element of mathematical calculation, “the law is
clear that in these cases the task of the court is to assess damages, not to
calculate them on some mathematical formula”: Mulholland (Guardian ad litem
of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248, [1995] B.C.J. No. 1823 at
para. 43 (C.A.).

[125]   A court
must consider all of the evidence that is reasonable in the circumstances in assessing
such an award; reference to projections, calculations and formula may be useful
insofar as determining what is “fair and reasonable”: Parypa at para.
70.  It is important for courts to “look at all relevant factors, especially
general incapacity, before fixing an amount”: Morris v. Rose Estate
(1996), 23 B.C.L.R. (3d) 256, 75 B.C.A.C. 263 at para. 24.  A court should also
be guided, to some extent, by the claimant’s actual earnings prior to the
accident: Smith v. Knudsen, 2004 BCCA 613, 247 D.L.R. (4th) 256 at
para. 34 [Knudsen].

[104]    
In the circumstances of
this case, the plaintiff argues that she is no longer competitively employable
even at a sedentary level of work.  While Dr. Vaisler and Dr. Arthur opine that
she can do some level of light work, they did not make any specific suggestion
of jobs which she could do.

[105]    
The defendants suggest
she could babysit for older children and point out that the plaintiff agreed
she might be able to work for her boyfriend in some office capacity.

[106]    
I do not consider the
plaintiff to be competitively employable for either job.  As a babysitter, she
must be reliable on a day-to-day basis, physically and emotionally able to cope
with sudden emergencies in the home, and stable in temperament.  With her
recurrent headaches and chronic pain, I do not see how she could be sufficiently
reliable to meet a family’s ongoing babysitting needs.   As well, were she to
have to do such tasks as physically separate children who were quarrelling, her
physical limitations would prevent her from acting quickly.  Her difficulties
with depression could result in a level of irritability not acceptable for a
babysitter.  Finally, she is on medication which could delay her reactions in
an emergency. 

[107]    
As for working in her
boyfriend’s office, at this point if he were to offer her a job, it would be an
act of charity, not the offer of a job at which she would be competitively
employable. 

[108]    
It is also very clear
that the plaintiff’s command of English is limited and would interfere with her
employability.  She is also lacking in education and training, so she could
only do a very low level job within her Polish language community.

[109]    
The plaintiff has
suffered the loss of a capital asset as a result of her injuries.  Her previous
employment as a landscaper is no longer available to her due to her physical
limitations.  We can, however, consider her future earning capacity by looking
at that past employment.

[110]    
The plaintiff contends
that she would have gone to work full-time once her daughter graduated from
high school.  I consider that contention to be unsupported by any evidence
other than the plaintiff’s bare assertion.  At the time of the accident, she
appeared to be content with her three-day a week schedule at Acura
Landscaping. 

[111]    
She was paid $12 per
hour at that job.  The wage rate reflected the expertise and level of training
required.

[112]    
Since the past wage
earning capacity of a plaintiff is a factor to guide the assessment of future
wage loss:  Knudsen, I consider that the plaintiff’s loss of future
capacity should be assessed on that basis.

[113]    
The plaintiff argues
that I should award a loss of future capacity based on the  possibility that
she would have gone into the housekeeping business full-time with her friend
and would have become an owner sending others out to work for her or have gone
back to work full time earning wages of approximately $30,000 per year.  I
consider these arguments to be speculative and not sufficiently grounded in the
evidence.

[114]    
With her younger child
in high school and close to the end of her public schooling, had Ms. Smusz
wanted to work longer hours she could have looked for other employment.  Her
rationale that she needed to be available for her daughter is not one I accept as
having prevented her from working more.

[115]    
I accept that it is
unlikely Ms. Smusz will be able to work again.  She may however, with
continuing treatment, improve sufficiently to find some minimal part-time work
and I must reflect that contingency in a deduction from the award for loss of
capacity, but there is also the possibility she will not improve or will
require surgery with a less than successful outcome in the matter of pain
resolution.  I find that on the evidence she is not marketable, she is less valuable
not only to herself but to employers, and is unable to take advantage of all
job opportunities which would have been available to her but for the accident: Golaiy.

[116]    
I accept Mr. Carson’s
net present value of an annual sum of $1,000 from the trial date to the
plaintiff’s 65th birthday is $14, 920.

[117]    
I find that the
plaintiff would likely have earned in the range of $15,000 to $18,000 per year
but for the accident.

[118]    
Therefore, I assess her
loss of future capacity at $239,000, subject to a 10% deduction for such
contingencies as periods of unemployment or illness.

[119]    
The defendants argue
that the plaintiff failed to mitigate her damages and should be subject to a
substantial reduction.  I will deal with that issue following my assessment of
the cost of future care.

Cost of Future Care

[120]    
I will begin with the
medications the plaintiff is currently taking.  They are as follows: 
Apo-Naproxen and Ratio-Cyclobenzaprine for pain; Mirtazapine for sleep and
depression; Tylenol 3 for pain; and Diffusimax, a topical pain killer used by
the plaintiff for her shoulder pain.

[121]    
The net present value
of the cost of these medications over the plaintiff’s life expectancy is
$20,625.  Her counsel cautions that the cost of medication increases over
time.  But I am satisfied that her needs for medication may decrease with
treatment and over time.  I will award her $15,000 for medication.

[122]    
I accept that the
plaintiff still requires some psychological counselling to assist her in dealing
with her pain and her fear of pain.  I am prepared to award her $10,000 towards
the cost of attending an interdisciplinary pain clinic at which I am informed
she will receive psychological counselling as part of the programme. 

[123]    
That there should be a
place for exercise in the plaintiff’s life is clear, but she has not made any
effort to participate in exercise, other than to attend physiotherapy, since
the accident.  In fact, she did not attend any organized exercise before the
accident.  I am not convinced that a monthly pass to a community centre would
be of use to her given her inability to venture outside her own language
group.  As well, I have found that there remains some uncertainty about her
ability to perform some kinds of exercise.  Therefore, I award the sum of $500
for the plaintiff to consult a kinesiologist to work out an exercise programme
which will be tailored to her physical limitations and which she can perform at
home.

[124]    
I was not given the
cost for an Obus Forme back support insert.  However, since counsel for the
defendants does not take issue with this recommendation, I will award $100 for
its purchase.

[125]    
The total award for
cost of future care is $25,600.00.

In Trust Claim/Loss of Housekeeping Capacity

[126]    
Following McTavish
v. MacGillivray et al., 2000 BCCA 164, 74 B.C.L.R. (3d) 281, the general
approach in BC is to compensate for the loss of housekeeping capacity but to do
so under the head of “general damages assessed in pecuniary terms” and I have
considered this loss in the award for non-pecuniary damages.

[127]    
Had the plaintiff or
members of her family incurred a monetary liability, I would award that
liability.  There is no evidence of any cost incurred.

[128]    
There was no evidence
presented that the plaintiff will be forced to hire someone in the future to
assist with housekeeping. 

[129]    
There will be no
separate award for loss of housekeeping capacity.

Special Damages

[130]    
Special damages are
conceded at $1,582.96.

Failure to Mitigate

[131]    
The defendants allege
the plaintiff failed to take steps both pre and post trial which would have
speeded her improvement and reduced her pain.

[132]    
They point out that
several doctors recommended she undertake an exercise programme and she failed
to do so.  They point out, as well, that the plaintiff only attended 5 of 12
sessions with Dr. Jung in May 2008, despite her continuing depression and the
effects of her PTSD.  Dr. Ancill also recommended she undertake psychiatric
treatment, a recommendation not followed by the plaintiff. 

[133]    
I am aware she did not
complete her sessions with Dr. Hudoba and did not accompany the trigger point
injections with physiotherapy as he suggested.

[134]    
The plaintiff responds
that she did not understand many of the recommendations of the doctors, nor
could her children translate the reports for her.  Her family doctor’s evidence
was somewhat confused on what he had advised the plaintiff but it is safe to
say that he did not spend time going through the medical reports with her.  He
was the only medical expert who spoke Polish. 

[135]    
While Beatta
Stepniewski testified she read and explained Dr. Hudoba’s report to the
plaintiff, this was the one report which cautioned against the plaintiff doing
exercises which would cause her to flex and extend her neck.  If the plaintiff
understood this report, it would increase her fear of movement.

[136]    
I note that the
plaintiff was in sorely impecunious circumstances throughout the pre-trial
period.  The plaintiff was concerned about the costs she would incur for
various treatments.  Although the costs of the sessions with Dr. Jung were paid
by ICBC, I did not hear evidence from the defendants that the costs of
psychiatric consultation would have been paid for. 

[137]    
There is no doubt that
the plaintiff’s lack of facility in English, and her impecuniosity have
hampered and possibly delayed her recovery.  I consider those handicaps to be
part of the way the defendants found the plaintiff and they must take her as
they find her. 

[138]    
The plaintiff should
have taken a less passive approach to her injuries than she did.  However, she
did go to her Polish-speaking doctor frequently and relied on him to direct her
to proper therapies.

[139]    
She attended a
substantial number of physiotherapy appointments, 35 in all.

[140]    
She attended at Dr.
Jung’s office for five sessions and was able to drive again.  However, her
depression has continued and there is some evidence that she may have had
greater improvement of the emotional component of her injuries had she
completed her treatment with Dr. Jung. 

[141]    
Dr. Vaisler testified
that he did not explain his recommendations, which included exercise, to the
plaintiff, although there was an interpreter present for his examination. 

[142]    
Surgery was not a
unanimous recommendation by the experts the plaintiff consulted and Dr.
Tomasczewski testified that he did not urge the plaintiff to undergo surgery as
he considers it a last resort.  Surgery would not relieve the plaintiff of her
persistent neck pain, even if the surgery were to be 100% successful so that
this treatment would not have reliably reduced or eliminated the effect of the
injury she had suffered.

[143]    
While the plaintiff did
not take all the steps she should have taken, I am satisfied that her inherent
characteristics interfered with her ability to mitigate.  However, I believe
she could have sought help from the interpreter she had met when she saw Dr.
Vaisler to at least gain a basic understanding of the treatment recommendations
made by the medical experts she consulted. 

[144]    
In the result, I will
reduce her total damages by 10% for failure to mitigate.

Conclusion

[145]    
The plaintiff is
awarded the following:

[146]    
I leave any present
value or tax calculations that I have not made, to counsel.

[147]     Subject to the submissions of the parties,
the plaintiff will have her costs plus interest under the Court Order
Interest Act, R.S.B.C. 1996, c. 79.

“L.D. Russell J.”

_______________________________________

The Honourable Madam Justice Loryl D. Russell