IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100318

Docket:
M116371

Registry: New Westminster

Between:

Valerie Gregory

Plaintiff

And

Insurance
Corporation of British Columbia and

Tamara Walton

Defendants

Before: The Honourable Madam Justice Kloegman

Reasons for Judgment

[1]            
On November 20, 2006, the plaintiff was driving
her mother and two small children north bound on Foster Street in White Rock,
British Columbia. She proceeded through the intersection of Foster Street and
Prospect Avenue when she was struck by the defendant’s west bound vehicle,
which had failed to stop at the stop sign. The defendant admits liability for
the accident.

[2]            
The plaintiff’s vehicle was traveling at about
30 kilometres per hour when it collided with the defendant’s vehicle. The
plaintiff gripped the steering wheel and braced herself because she knew that
despite her braking, she could not avoid the accident. The damage to the
plaintiff’s vehicle was not major. She was able to drive it away from the scene
of the accident and it cost about $3,200 to repair.

[3]            
The plaintiff testified that immediately after
the collision she felt a bit sore but was more in shock. She was able to drive
her mother home, and to drive to her family doctor. She complained to him of a
sore neck, back, shoulder, leg and head. He prescribed anti-inflammatories and Tylenol
3.

[4]            
The plaintiff continued to suffer headaches for
a few weeks. She suffered neck and back pain for a few months. It is not clear
from the evidence how long it took for the neck and back complaints to
substantially resolve themselves, but both parties seem to agree that by today
they have substantially resolved.

[5]            
The major injury suffered by the plaintiff was
to her left shoulder. Dr. Day, orthopaedic surgeon, described this injury as an
abnormality in the subscapularis tendon at the site of the superior border. In
addition, there was inflammation in the subacromial bursa. On cross examination
Dr. Day testified that the plaintiff does not have a severe advanced injury or
a major traumatic injury, but she does have post traumatic tendinopathy causing
some discomfort.

[6]            
Dr. Chin, the orthopaedic surgeon who removed
the plaintiff’s inflamed bursa in March 2009, found no tears, no subluxation,
no sign of instability and no arthritis in the left shoulder mechanism. He did
find a lot of bursitis or a thick, tight, subacromial bursa which can cause
constant irritation, so he “cleaned it up”. He agreed with Dr. Day’s diagnosis
of chronic post traumatic tendinopathy which could be due to insubstance
tearing or scarring.

[7]            
The other medical witness, Dr. Chu (physiatrist)
agreed with Dr. Chin that the plaintiff has no restriction in her range of
motion and no loss of strength in her left shoulder. Dr. Chu described the
plaintiff as having a “mild impairment” in the left shoulder in that she
suffered discomfort when performing certain movements.

[8]            
Although the diagnosis of the plaintiff’s
shoulder injury arising from the accident was not seriously disputed, the
prognosis remained a major issue at trial. Dr. Day wrote in his medical legal
report of November 17, 2009, that there was a possibility that the plaintiff
would improve slightly. However, at his deposition two months later he conceded
that if she had not improved by then he did not expect a complete resolution. She
would continue to have limitation in performing heavier, prolonged physical
activity or repetitive stress movements involving her shoulder. She was not at
risk for arthritis or further surgery. Dr. Chin seemed to agree with Dr. Day.

[9]            
Dr. Chu opined that the plaintiff should have no
further problems with left sided neck and shoulder girdle muscle pain, but the
prognosis was “guarded” for resolution of the shoulder joint pain. He felt the
chances of it resolving were very small. He was uncertain as to whether she
would experience future problems with her shoulder.

[10]        
In the circumstances, I accept the prognosis of
the two orthopaedic surgeons over that of Dr. Chu. Dr. Chu was concerned that
the plaintiff had suffered a partial tear of the subscapularis tendon which
could lead to further damage and problems in the future. However, the
admissible evidence did not establish a tear of the tendon, and therefore any
opinions based on this unproved assumption must be given lesser weight.

[11]        
Due to the plethora of shoulder injury cases in
the case law, it is important to distinguish the plaintiff’s shoulder injury
from some of the shoulder injuries suffered by other plaintiffs in other cases.
In the case at bar, the plaintiff does not have:

1.       neurological deficit;

2.       instability in her shoulder;

3.       frozen shoulder;

4.       restricted range of motion;

5.       dislocation or subluxation;

6.       arthritis; and

7.       muscle wasting.

[12]        
However, I accept that the plaintiff does have
ongoing chronic pain in her shoulder which is exacerbated by certain movements.
There was no suggestion that the plaintiff was a malingerer or was exaggerating
her symptoms. Notwithstanding that pain is a subjective symptom, the medical
professionals found some objective corroboration in the tendinopathy and
bursitis. Unfortunately, the plaintiff will likely continue to suffer various
degrees of pain in her left shoulder in the future. To this extent she is
mildly restricted in her activities and potential for employment.

[13]        
In summary, I find that the accident caused
injury to the plaintiff, primarily in her left shoulder joint, which injury is
mildly impairing and likely of a permanent nature. This injury has caused and
will continue to cause the plaintiff pain and suffering, and has caused and
will continue to cause some loss in her ability to earn income both in the past
and the present. As discussed below, the operation of legal principles serves
to reduce the future care costs claimed by the plaintiff and to reduce overall
the damages to the plaintiff for her failure to mitigate.

Non-Pecuniary Damages

[14]        
The plaintiff was injured by the accident in
November 2006. At that time she was a stay at home mother with a toddler and a
baby. Thus a large component of her daily activities were physical, such as
housecleaning, shopping, diapering and transporting small children. She carried
on with these duties without outside help other than from family members, but
she was in pain which caused her to be impatient and less demonstrative with
her children. She lowered her standard of housekeeping and stopped helping her
husband with house renovations or yard work.

[15]        
The plaintiff testified that after Christmas
2006 her injuries had plateaued with occasional flare ups. She and her family
went to Mexico in February and March 2007 where she rested and avoided taking
the children in the surf. She returned from Mexico pregnant.

[16]        
From April 2007 to June 2007 she underwent
physiotherapy. During the summer of 2007 she worked for Darcy Mackenzie looking
after her children for three days per week, 10 hours a day. In August 2007, she
went to see Dr. Yao, orthopaedic surgeon, on the recommendation of her family
doctor. The plaintiff testified that Dr. Yao told her she had a soft tissue
injury and that he expected she would have full recovery. On cross examination,
the plaintiff admitted that Dr. Yao had recommended that she receive cortisone
injections but she never followed his recommendation.

[17]        
In November 2007, she gave birth to her third
child. She found it difficult to nurse him because of pain in her left shoulder.

[18]        
In January 2008, she returned to see Dr. Yao and
insisted on an MRI scan. In May 2008, her family doctor sent her to Dr. Smit
who sent her to Dr. Chin who performed surgery in March 2009. The plaintiff
testified that until the surgery, she experienced more or less the same level
of pain, but after surgery she had the highest level of pain she had previously
experienced. Although the pain eased after a week, it still continued so she
tried physiotherapy and acupuncture. This provided only temporary relief and
today the plaintiff still has a throbbing, aching, sometimes burning sensation
in her shoulder.

[19]        
Prior to the accident, the plaintiff attended a
gym regularly. She still attends the gym regularly but instead of aerobic
classes she focuses on exercises for her shoulder. Prior to the accident she
performed all manner of housekeeping tasks. She still performs those tasks but
more slowly and breaks them up throughout the day. She still tends to her
children, but feels she is restricted in lifting, carrying and holding them as
much as she would like. Her friend, Ms. Assels, testified that the plaintiff is
still “supermom” but less carefree and patient with the children.

[20]        
The plaintiff relies on the decision of Steward
v. Berezan, 2005 BCSC 1812; Dycke v. Nanaimo Paving and Seal Coating
Ltd., 2007 BCSC 455; and Schnare v. Roberts, 2009 BCSC 397, to
support a claim for $90,000 non-pecuniary damages. The defendant relies on Chan
v. Kao, 2009 BCSC 626; Lopez v. VW Credit Canada Inc., 2008 BCSC
320; Thauli v. Gill, (unreported, October 23, 2009, New Westminster
Action No. M104529, ); Grant v. Diels, [1996] B.C.J. No. 1765 and John
v. Landry, 2006 BCSC 1767, to support an award for non-pecuniary damages in
the range of $22,000 to $75,000, depending on whether I find that the plaintiff
is permanently impaired or not, and to what extent.

[21]        
As I have found that the plaintiff is likely
permanently impaired, albeit to a minor degree, the cases of Thauli, Grant
and John are more helpful. Reviewing these cases and keeping in mind the
more severe injuries described in those cases, I am of the view that $60,000 is
reasonable compensation for the plaintiff’s pain and suffering in this case.

Past Income Loss

[22]        
The plaintiff had a plan at the time of the
accident to continue daycare services of the type she had performed for Ms.
Mackenzie from May 2004 to August 2006 and again during the summer of 2007. She
admitted that she would not have been able to offer daycare services in her own
home until they had sold their townhouse and bought their new home in June 2008.

[23]        
The defendant submits that the plaintiff would
not have continued to perform daycare in light of her third pregnancy. Alternatively,
if she had been restricted in caring for preschoolers, she could still have
cared for older children. Finally, the defendant submits that the plaintiff
earned more during 2007-2008 as an employee of her husband’s business than she
would have as a nanny. With respect to the latter submission, the defendant is
correct that the income tax records reflect income splitting between the
plaintiff and her husband, but there is no reason why added income from child
caring would have necessarily affected this arrangement.

[24]        
In my view, given the plaintiff’s determination
and need for extra income, it was more likely than not that the plaintiff would
have provided in-home daycare services from September 2008 for two children. 
This would have provided her with a probable income of $1,400 per month.  Therefore
I award the plaintiff $25,200 under this head of damages.

Loss of Future Income and
Earning Capacity

[25]        
As is often the case in personal injury actions,
this is the most difficult head of damages to assess with any degree of
certainty.

[26]        
The Court of Appeal has stated in Steward v.
Berezan [supra] and again in Bedwell v. McGill, 2008 BCCA 6
that the plaintiff must first prove a substantial possibility of a future event
leading to an income loss before the court embarks on a valuation process.

[27]        
The defendant submits that the plaintiff has not
established her injuries have resulted in a substantial possibility of a future
event leading to an income loss. I disagree. Firstly, the plaintiff is somewhat
restricted in her capacity to earn income through childcare. Although she is
capable of after school care for older school aged children, this likely would
result in less income than daycare for infants, toddlers and preschoolers. Secondly,
the plaintiff has a history of employment in office administration. Although
she retired from this work to start her family, it was always her intention to
return to it once her own children were of school age. Ms. Percy, occupational
therapist, has opined that because of the plaintiff’s vulnerability to
repetitive stress in her shoulder, she could not perform a job that required
extensive keyboarding. Most office jobs involve computer work and the plaintiff
would be barred from office positions that relied heavily on this. The
plaintiff’s limitations in lifting heavy items such as small children or in
typing extensively, establishes a realistic substantial possibility of loss of
earning capacity in the future.

[28]        
The second part of a trial judge’s task as set
out in Steward v. Berezan is to “estimate the chance that the event
[leading to loss] will occur”. In my opinion, the plaintiff has been rendered
less capable of earning income from some, but not all, types of employment. She
has lost the ability to take advantage of some, but not all, job opportunities
which might have been open to her had she not been injured. She is less
competitive in certain areas of employment and less marketable as an employee. Therefore
she is entitled to an award for loss of a capital asset and I give her $50,000
under this head.

Future Care

[29]        
The plaintiff relies heavily on the report of
Ms. Percy, occupational therapist, to support her claim for $123,202.79 for
future care of costs. These costs include housekeeping assistance for the
indefinite future, seasonal housekeeping, home and yard maintenance,
rehabilitation assistance, gym membership to age 75, chiropractic treatment for
four years, vocational evaluation and assistance, assistive devices, and
childcare. In addition, the plaintiff claims $6,320.93 based on an IKEA
estimate to redo her kitchen cupboards. The defendant submits that with the
exception of gym membership and vocational assistance, the plaintiff’s claims
under this head of damages are neither reasonable nor medically justified. The
defendant submits that these items of future care serve to make the plaintiff’s
life more enjoyable, but they should be paid for with the plaintiff’s award for
non-pecuniary damages.

[30]        
It is trite law that a court cannot award
damages for costs of future care without medical justification (Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). In the case at bar, there are
no recommendations from the medical practitioners for housekeeping assistance,
home and yard maintenance, chiropractic treatment, assistive devices, childcare
or kitchen renovations. In fact, Dr. Chu, physiatrist, recommended against any
further chiropractic treatment of the sort that the plaintiff had been
receiving. The only recommendation made by Dr. Chu was for the plaintiff to
continue with her exercise program to help with the myofascial pain. Dr. Day agreed
that the plaintiff needed to maintain her muscle strength and mobility, which
is also accomplished with exercise.

[31]        
The defendant submits that the plaintiff can
exercise at home using weights and thermal bands. The defendant submits,
alternatively, that because the plaintiff attends a gym also to maintain a
healthy weight, the defendant should not be required to bear the entire cost. The
plaintiff did not seem to disagree with this alternative submission, as she is
only claiming $5,000 of the estimated $10,000 cost.

[32]        
I award the plaintiff $5,000 for gym membership,
$843.75 as claimed for rehabilitation assistance, and $2,600 as claimed for
vocational evaluation and assistance for a total of $8,443.75 future care
costs.

Special Damages

[33]        
The defendant agrees to pay the plaintiff’s
remaining claim for special damages in the sum of $2,497.19.

Mitigation

[34]        
As I mentioned earlier, the plaintiff was
prescribed a course of medical treatment which she refused to follow. Dr. Yao
advised the plaintiff as early of August 2007 that she would need a cortisone
injection if her symptoms persisted. In July 2008 her shoulder pain was ongoing
so Dr. Yao arranged for the injection. The plaintiff did not attend for
treatment, because of what she “read on the internet” and what she had
discussed with her claims adjuster and chiropractor. She did not discuss cortisone
shots with any of her doctors. Both Dr. Day and Dr. Chu were of the view that
injections are a reasonable first approach. Although not necessarily curative,
they reduce the inflammation to allow the body to heal the affected area. Sometimes
the relief is only temporary but sometimes the injections bring long term
benefits. There was no evidence that they could be harmful in any way, and I
find that the plaintiff’s basis for refusing them was unreasonable.

[35]        
In Turner v. Coblenz, 2008 BCSC 1801, the
court reduced the plaintiff’s damages by 10% to reflect her failure to receive
injection therapy that had a 50% chance of success. I am of the view that the
same reduction of 10% is appropriate in the case at bar.

Conclusion

[36]        
I make the following award to the plaintiff on
account of injuries suffered in the accident of November 20, 2006:

“Kloegman J.”