IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100527

Docket: M084244

Registry:
Vancouver

Between:

Narinder Kaur Dial

Plaintiff

And

Dhanvir Singh
Grewal

and Friends
Roofing Ltd.

Defendants

Before:
Associate Chief Justice MacKenzie

Reasons for Judgment

[1]          
On October 3, 2006, the plaintiff, Narinder Kaur Dial, was injured in a
motor vehicle accident in Surrey, British Columbia. The defendants admit
liability.

[2]          
It is common ground that the plaintiff suffered soft tissue injuries to
her neck and right shoulder impingement (commonly referred to as tendonitis or
bursitis) as a result of the accident. It is also common ground that the
accident exacerbated the plaintiff’s pre-existing low back and headache
conditions. What is at issue is the extent of both the plaintiff’s new injuries
and the aggravation of her pre-existing conditions, and whether they disable
her from working.

[3]          
The plaintiff seeks non-pecuniary damages of $80,000, as well as damages
for diminishment of earning capacity, both past and future, loss of homemaking
capacity, special damages and cost of future care.  The defendants counter that
an appropriate award for non-pecuniary damages is in the range of $27,500 to
$35,000, depending on my assessment of the evidence. They contend that the
plaintiff’s claim for special damages is excessive, and that her remaining
claims are unsupported by the evidence. The defendants further submit they have
proven a significant failure on the part of the plaintiff to mitigate her
damages.

[4]          
For the reasons that follow, I find on the evidence as a whole that an
appropriate award for non-pecuniary damages is $50,000 for the injuries the
plaintiff sustained to her neck and right shoulder, the aggravation of her
pre-existing low back condition and headaches, and more minor injuries to her
ribs, and dizziness. I also award the plaintiff modest damages for loss of
homemaking capacity, cost of future care, and most of the special damages
claimed.  I do not find that the plaintiff has proved her claims for past and
future loss of earning capacity, and I therefore make no awards for those
claims.

The Plaintiff

[5]          
I pause at the outset to indicate that I have considered the totality of
the evidence tendered at trial but will not review it all in these Reasons.

The Plaintiff’s
Examination in Chief

[6]          
The plaintiff has limited knowledge of English and gave her evidence at
trial through a translator.

[7]          
The plaintiff was born in India in 1974 and was 35 at the time of trial.
In 1999, she immigrated to Canada with her sister and mother, and settled in
Surrey, British Columbia. She married Avtar Singh Dhadwal on December 31, 1999.
Mr. Dhadwal joined the plaintiff in Canada in 2001, and they now have three
daughters aged 9, 6, and 3. The plaintiff, her husband, her mother, and her
three daughters reside in a two bedroom basement suite which they rent in
Surrey.

[8]          
The plaintiff completed grade 12 in India. Before arriving in Canada she
learned sewing but did not work outside the home. In Canada, the plaintiff
initially worked in a bridal shop and a chicken factory, and then found work at
a greenhouse. After injuring her back pulling heavy carts of produce at the
greenhouse, she completed a two-week security course and obtained a licence to
work as a security guard. At the time of the accident, the plaintiff was on
maternity leave after the birth of her third daughter on April 29, 2006.

[9]          
I review the plaintiff’s evidence as to her employment history in detail
later in my discussion of her claim for damages for loss of earning capacity.

The Accident

[10]       
The accident occurred at approximately 8 p.m. on October 3, 2006. The
plaintiff was in a Dodge Caravan heading northbound on 128th Street in Surrey.
Her middle daughter was in the back seat behind the driver’s seat.

[11]       
The plaintiff was wearing her seatbelt. She was driving straight and the
personal defendant was stopped to make a left turn. As she drove closer, he
accelerated into his turn and his van hit the area above the plaintiff’s left
front tire.

[12]       
The plaintiff does not remember how her body moved during impact.
However, she remembers feeling a cracking sound towards the left side of her
neck. She felt as if her neck had broken, and she had a severe headache.

[13]       
After the impact, the plaintiff was unable to get out of the vehicle to
attend to her daughter in the back seat.

[14]       
The police and ambulance attended the scene of the accident.  While in
the ambulance, the plaintiff felt pain in her neck and right shoulder. The plaintiff’s
sister, Mrs. Kuldeep Gill, attended and rode in the ambulance to the hospital.

[15]       
The plaintiff testified that at the hospital, she could not move her
back due to severe pain, but was unable to pinpoint the location of the pain.
She had a headache, and pain in her neck, shoulder, and lower back. She was
sent for x-rays, given pain relievers (Tylenol 3), and sent home that night.

[16]       
At home, the plaintiff’s mother attended to her and took care of the
children. The plaintiff testified she was unable to stand or pick up her infant
daughter due to pain in her head, neck, lower back, shoulder blades, right
shoulder and right leg. The following few days she had trouble sleeping because
she was in pain and was also reliving the accident. She was taking pain killers
and felt intoxicated. The plaintiff described the pain at the time as 10 on a
scale of 1 to 10, with 10 being the most extreme.

[17]       
The plaintiff saw her family doctor, Dr. Kanwarjit Singh, after the
accident. She changed doctors in early November 2006 and began seeing Dr. Jiwan
Sidhu. Dr. Singh and Dr. Sidhu both recommended physiotherapy.

[18]       
The plaintiff saw a physiotherapist, Mr. Tung of Jaideep Tung Therapists
Inc., who treated her neck, shoulders, and lower back. However, the plaintiff
said that the physiotherapy exercises were painful and made her neck and back
crack.

[19]       
As physiotherapy was also expensive, the plaintiff purchased a massage
tool and used it at home to relieve muscle tightness in her shoulder blades,
right shoulder, both sides of the neck, right side of the buttock, and low and
mid-back. She also bought a large heating pad but did not find it effective.

[20]       
The plaintiff purchased pain relievers and various rubs and balms (such
as Tiger Balm and Rub A535) which her mother, husband, or sometimes daughter,
would massage to relieve the pain.

[21]       
The plaintiff underwent various treatments and therapies in the years
after the accident. She saw an aquatherapist at the Sun God Sports and
Orthopaedic Physiotherapy Clinic for her shoulder, neck, back and leg. From May
2007 to January 2009, she obtained monthly passes for the pool. On the
recommendation of the aquatherapist, she walked in the water and alternated
between the warm and cold pools. She testified that the pool exercises did not
aid in her recovery and so she stopped attending in January 2009.

[22]       
On Dr. Sidhu’s recommendation, the plaintiff received acupuncture
treatment from Dr. Situ, a Chinese medicine doctor at Sunway Clinic in
Richmond.

[23]       
From September 2007 to January 2008, the plaintiff received monthly
trigger point injections at various sites to reduce pain, including her neck,
mid-back, shoulder blades, lower back and right hip joint area. However, she
experienced only very transitory relief.

[24]       
The plaintiff also received chiropractic treatment, primarily from Dr.
Randhir Garcha but on two occasions from Dr. Scott MacKenzie. The chiropractors
treated her neck, shoulders, and mid-back by cracking, massaging, and putting
heat on the affected areas. The plaintiff received around 90 treatments from
Dr. Garcha, but said they did little to reduce her pain. Any relief was
temporary.

[25]       
The plaintiff currently takes pain medication during the day, including
Tramacet, Tylenol 3, and Celebrex.

[26]       
For the first two months after the accident, the plaintiff did not have
a car and was afraid to drive. For this reason, and because her English was
poor, her sister took her to appointments. The plaintiff started driving to her
appointments about three or four months after the accident and took her eldest
daughter to assist with English.

The Plaintiff Before The Accident

[27]       
Before the accident, the plaintiff’s relationship with her husband, Mr.
Dhadwal, was strained. Mr. Dhadwal had difficulties adjusting to life in
Canada. He became physically and verbally abusive towards the plaintiff and
developed substance abuse problems. The abusive behaviour and addiction lasted
from 2001 until he sought treatment in 2007. The plaintiff believes her husband
has been clean since early 2008, although he takes prescription methadone
daily.

[28]       
The plaintiff’s financial situation before the accident was also
strained as her husband was dealing with his addiction and she was on maternity
leave. She planned to return to work in March or April 2007 after her maternity
benefits ceased. The plaintiff testified that she intended to return to work as
a security guard, if possible, or to find employment elsewhere. At one point,
she testified that she was planning to return to work in the fall of 2006.
However, she had done almost nothing to prepare for that event. I find on the
evidence, including that she had taken a full year of maternity leave after the
birth of her second child, that she would probably have taken the full year of
leave. During closing submissions, her counsel conceded that she would probably
have been on maternity leave until April 2007, so her past loss of income
claim, if accepted, would not start until then.

[29]       
In terms of her physical health before the accident, the plaintiff
admitted to having a pre-existing history of headaches brought on by stress and
exacerbated by bright light. During cross-examination, she admitted that the
headaches had occurred daily since 1995 and lasted a few hours at a time. The
headaches continued even after she saw a specialist, Dr. Knazan, in 2000.

[30]       
The plaintiff’s evidence about her pre-existing headaches was confusing.
For instance, in cross-examination she referred to something Dr. Singh gave her
to drink that improved the headaches. We do not know what that was, and Dr.
Singh gave no evidence about it.

[31]       
The plaintiff agreed she also had a history of seizures, and has had
about three since coming to Canada. The last one occurred in May 2006. The
seizures and loss of consciousness were usually brought on by highly stressful
situations, such as the loss of her father in 1991 and her brother in 1995. The
plaintiff also had a thyroid condition and high blood pressure before the
accident. Both have been, and continue to be, treated with medication.

[32]       
Before the accident, the plaintiff suffered low back pain from her heavy
labour work at the greenhouse. She testified in chief that the pain was not
continuous, but came on with heavy work and lifting. The pain would sometimes
last two to three days and was treatable with Tylenol.  However, I note that
this evidence was not accurate and must be tempered by the evidence of Dr.
Singh (reviewed below) and the plaintiff’s own admissions on cross-examination.

[33]       
For instance, the plaintiff testified that in April 2005, she had
suffered three to four months of severe low back pain. She indicated in chief
that the pain decreased with medication and she would then have occasional pain
with heavy housework. However, it is significant that she agreed that she had
told Dr. Singh on numerous occasions after April 2005 that her low back pain
was worsening and persistent. In fact, the plaintiff’s low back pain was so
severe that Dr. Singh wrote medical notes on four occasions in 2005 (in April,
May, June and August), each time advising that the plaintiff was unfit to work
for four weeks due to her low back pain. The plaintiff gave the notes to Human
Resources Development Canada.

[34]       
The plaintiff gave confusing evidence when asked whether pregnancy
worsened her low back pain. She responded, “No. It was not making it worse. I
was doing the security job and the pain would increase as I had to sit for a
longer time”. She also said that she was pregnant and that her weight had gone
to the front, and agreed that while she was working as a security guard from
the end of December 2005 until leaving for her maternity leave, having to sit
increased her pain in her low back.

[35]       
The plaintiff testified that her back pain became continuous during
pregnancy and after delivery of her youngest daughter in April 2006. In fact, under
cross-examination, she agreed with the accuracy of Dr. Winston Gittens’ report
that in June 2006 “she seem[ed] to be significantly incapacitated” by her back
pain.

[36]       
Dr. Gittens is a neurosurgeon, and he examined the plaintiff on June 27,
2006. In a report dated June 29, 2006, he wrote:

It
is my understanding that for some time now she has had intermittent lower back
pain which was related to her period. Two to three years ago the pain increased
and it has been significantly worse since April 2005. Currently the pain is
reported to be relatively constant, aggravated by bending, lying flat on her
side, and standing. There are two areas of pain localization. One is at the
lumbosacral junction and the other one along the iliac crest and the lower
portion of the iliac crest. Her symptoms are eased by sitting for a short
period of time. There is also radiation of pain into both buttock areas and
into the lower extremities bilaterally to the calves. There is numbness in the
right foot and cold dysesthesiae in that foot as well. She admits to weakness
particularly in the right foot.

[37]       
The plaintiff accepted this as true.

[38]       
The plaintiff did not complain of pain in her neck, right shoulder or
shoulder blades before the accident. Medical records indicate a shoulder problem
in 2001 but it had resolved long before the accident.

Dr. Singh

[39]       
Dr. Singh was the plaintiff’s family doctor from her arrival in Canada
in December 1999 until November 2006. He was called as a witness by the
defendants.

[40]       
Dr. Singh’s evidence is enlightening as to the plaintiff’s medical
history before the accident. As earlier noted, the plaintiff’s evidence as to
her pre-accident low back history is not reliable because of her poor memory.
Dr. Singh’s evidence is therefore important in accurately demonstrating the
seriousness of her pre-existing condition.

[41]       
Dr. Singh recorded approximately 21 visits from the plaintiff in 2000.
She complained of neck pain and shoulder pain, which Dr. Singh diagnosed as
tendonitis. She also complained of headaches and lower back pain radiating into
her legs. The plaintiff gave birth to her first daughter in July 2000. Dr.
Singh stated that low back pain is often common during and after pregnancy, as
carrying weight in the abdomen puts added pressure on back muscles.

[42]       
Dr. Singh advised the plaintiff to make diet and lifestyle changes, and
to begin exercising in order to manage her obesity and resultant health issues.
However, on December 29, 2000, Dr. Singh recorded that the plaintiff had
“compliance issues”, meaning she did not follow his directions or take
prescribed medication.

[43]       
In 2001, Dr. Singh recorded approximately 30 visits from the plaintiff.
She reported domestic stressors (marital problems) and complained of lack of
sleep, headaches, nausea and photophobia. Dr. Singh diagnosed her with migraine
headaches.

[44]       
In 2001, the plaintiff first complained to Dr. Singh of low back pain
from work at the greenhouse. Dr. Singh observed spasm, decreased movement and
tenderness in the area.

[45]       
On October 4, 2001, the plaintiff complained of right shoulder pain. Dr.
Singh diagnosed her with tendonitis and prescribed anti-inflammatory
medication. On cross-examination, Dr. Singh confirmed that this pain in the
plaintiff’s right shoulder had resolved and did not reappear until after the
motor vehicle accident.

[46]       
Dr. Singh recorded approximately 16 visits from the plaintiff in 2002,
primarily related to headaches. He diagnosed her with tension headaches. The
plaintiff also complained of right leg and lower back pain on July 10, 2002.
Dr. Singh prescribed regular Tylenol for the pain.

[47]       
Dr. Singh recorded approximately 22 visits from the plaintiff in 2003.
The plaintiff gave birth to her second daughter in February 2003. The plaintiff
complained of anxiety and migraine headaches, and Dr. Singh prescribed Paxil.
On October 21, 2003, Dr. Singh noted that the plaintiff had stopped taking
Paxil and he counselled her to resume it.

[48]       
On many occasions in 2003, the plaintiff complained of low back pain
which extended into her right leg. Dr. Singh noted the plaintiff’s obesity,
concluding that the back pain was mechanical and muscular, not the result of a
bone fracture.

[49]       
On June 1, 2003, the plaintiff complained of neck pain. Dr. Singh
confirmed on cross-examination that this was the only complaint of neck pain until
after the accident in 2006.

[50]       
Dr. Singh recorded approximately 23 visits from the plaintiff in 2004. 
She complained of severe headaches, low mood and stress from ongoing marital
and family problems. Dr. Singh diagnosed her with migraine headaches. The
plaintiff also reported that her low back pain was getting worse and radiating
into her right leg. She had pain and numbness in both legs. Dr. Singh reviewed
a CT scan which showed a small disc herniation at the L4, L5 and S1 level. He
referred the plaintiff to an orthopaedic surgeon.

[51]       
Dr. Singh recorded approximately 22 visits from the plaintiff in 2005.
The plaintiff again complained of headache and depression brought on by marital
discord. She also continued to complain of acute low back pain. Dr. Singh prescribed
exercise and told the plaintiff to take time off work. In 2005, Dr. Singh wrote
four medical notes for the plaintiff, each advising that she was unable to work
for four weeks due to low back pain. He provided these notes on April 26, May
26, late June 2005 and August 1, 2005.

[52]       
Dr. Singh recorded approximately 25 visits from the plaintiff in 2006.
The plaintiff was pregnant with her third daughter and gave birth via Caesarean
section in April 2006. Again, the plaintiff complained of headaches, stress,
depression, and low back pain. Dr. Singh again advised the plaintiff to lose
weight.

[53]       
The motor vehicle accident occurred on October 3, 2006. Following the
accident, the plaintiff complained to Dr. Singh of right shoulder pain,
persistent neck pain, lack of sleep, and worsening low back pain. Her last
visit to Dr. Singh was on November 6, 2006.

[54]       
In summary, Dr. Singh recorded a history of depression, headaches,
obesity and low back pain. On cross-examination, he agreed that the plaintiff
did not report any neck pain for two years before the motor vehicle accident,
or any shoulder pain for five years before the accident. He also stated that
the plaintiff’s tension and migraine headaches were “well managed” with
medication. Finally, Dr. Singh admitted that frequent lower back pain is often
related to pregnancy and child birth, which the plaintiff experienced in 2000,
2002-2003, and 2006.

The Plaintiff After The Accident

Dizziness:

[55]       
For the first couple of months after the accident, the plaintiff said
she experienced dizziness every time she stood up. The dizziness gradually
reduced in frequency over the following several months. She has not felt dizzy
in the last six months.

Neck:

[56]       
The plaintiff testified that she feels pain in her neck on a daily
basis, and that the pain persists even when she takes medication such as
Tramacet and Tylenol 3. From the time of the accident until trial, the
plaintiff described her neck pain as 8 to 9 out of 10. Treatment by a
physiotherapist, acupuncturist or chiropractor eases the pain only for a short
time, and it returns within hours.

Shoulders:

[57]       
The plaintiff testified that from the date of the accident until trial,
she has had continuous pain in her right shoulder that ranges from 4-5 to 8-9
out of 10. It is exacerbated by household activities such as preparing meals,
combing her children’s hair, doing laundry and other chores that require her to
lift her arms. The plaintiff is right handed.

[58]       
The plaintiff also said that she has had continuous pain in her shoulder
blades since the time of the accident to the present. The pain ranges from 4-5
to 8 out of 10, and is exacerbated by lying down, which makes sleeping
difficult.  Massage, chiropractic treatment and medication help alleviate the
pain.

Ribs:

[59]       
The plaintiff first noticed soreness in her ribs when she returned home
from the hospital after the accident. This pain lasted for two to three months
after the accident.

Headache:

[60]       
The plaintiff had a severe headache on the day of the accident. The
intense pain decreased a few days afterward, but has remained at 5-6 out of 10,
as it is now.  However, I observe that she had serious headaches before the
accident, as already noted.

Low Back:

[61]       
The plaintiff felt pain in her low back immediately after the accident
which continues to this day. It begins above the waist and radiates through the
right buttock and into the right leg. She described the pain as 4-5 out of 10,
and said that it worsens with physical activity such as standing, walking, and
driving.

[62]       
In May 2007, the plaintiff saw Dr. Gittens again about her low back pain
(she had previously seen him in June 2006 before the accident). In a letter to
Dr. Singh, Dr. Gittens noted the plaintiff had “chronic mechanical lower back
pain”. He recommended that she receive a series of epidural steroid injections,
perform certain exercises and lose weight. The plaintiff stated that she was
not able to perform the exercises but that she reduced her food intake to try
to lose weight. This was ineffective.

[63]       
On September 7, 2007, the plaintiff attended Surrey Memorial Hospital
for her low back and right leg pain. The plaintiff did not recall telling the
hospital staff about her pre-accident history of lower back pain.

Effect on the Plaintiff’s Life:

Household chores:

[64]       
The plaintiff testified that before the accident, she did most of the
cooking, cleaning, bathing and clothing of the children, laundry, grocery
shopping and banking. Her mother sometimes assisted with chores and care of the
children. As the defendants point out, Mrs. Gill, the plaintiff’s sister, must
also have assisted, given that she lived with the plaintiff’s family until she
married in early 2004.

[65]       
Since the accident, the plaintiff has had difficulty with all household
tasks, especially cooking, which requires stirring, kneading dough, and lifting.
She also struggles with laundry, as it requires her to lift heavy wet clothes.

[66]       
As the plaintiff has been unable to perform all her household work, her
mother, husband, and sister have provided significant assistance. The
plaintiff’s husband helps bathe the children, vacuums, and does the heavy
lifting and grocery shopping, often unaccompanied by the plaintiff.

[67]       
The plaintiff said she is now able to do some cooking and comb the
children’s hair. She is also able to do some laundry, using her left hand to
lift and hang clothes. However, she said all of these activities cause her pain
in the neck, right shoulder and arm.

[68]       
In the summer of 2008, the plaintiff travelled to India with her middle
daughter while the rest of the family stayed in Canada. While in India, the
plaintiff lived at her maternal grandparents’ home. She did no household work,
the climate was warmer and she felt less pain in her low back upon return to
Canada.

Employment:

[69]       
The plaintiff testified that she has not been employed since the accident.
She continues to receive monthly CPP benefits of $1133. However, she admitted
that she has accompanied her husband to his security guard job, and on 10 – 15
occasions, has worked in his place when he was occupied at another job. She
usually worked up to three hours until he arrived. Significantly, on four or
five occasions, she covered her husband’s entire eight-hour shift.

[70]       
The plaintiff testified that before the accident, she planned to
eventually upgrade her English skills and continue working until age 65.

Social Activities:

[71]       
Before the accident, the plaintiff attended the Sikh Temple three or
four times a week. She did not attend the Temple after the accident, and now
does so only once every few months.

Marital Life:

[72]       
The plaintiff testified that her marital life has been “fine” over the
two years since early 2008 after her husband was treated for drug addiction.
She testified that before the accident, their intention was to have another
child, but now she has difficulty caring for the children they already have.
However, in cross-examination, the plaintiff testified, as did her husband,
that they intend to have a fourth child.

Reliability of the
Plaintiff

[73]       
The plaintiff’s testimony was vague and inconsistent with respect to
various matters, and I found her to be an unreliable witness. In so finding, I
have taken into consideration that she testified through an interpreter.

[74]       
The plaintiff failed to describe the severity of her lower back
condition before the accident, not only to the Court in her examination in
chief, but also to Dr. Vaisler and other medical personnel who dealt with her,
including staff at Surrey Memorial Hospital. I was surprised to learn during
her cross-examination just how serious both her pre-existing low back condition
and headaches were before the accident. To her credit, the plaintiff admitted
the accuracy of the contents of various clinical records put to her in
cross-examination. She generally testified that if something was written down,
it was correct.

[75]       
I conclude both that the plaintiff did not remember the severity of her
low back symptoms and headaches before the accident, and that she attempted to
minimize what she did recall. I certainly agree with the observation of Dr.
Singh that she is a poor historian.

[76]       
I cannot rely on the plaintiff’s use of the pain scale to describe the
severity of her symptoms at various intervals after the accident. The scale
(based on escalating pain from 0 to 10) was overused and inconsistent with the
vagueness of her evidence in general.  The plaintiff described extreme levels
of pain which were unpersuasive when considered with her activities at those
times. This includes, for instance, video surveillance of the plaintiff grocery
shopping with her family in April 2009. The video showed her walking around a
grocery store for about 40 minutes, reaching up with her right arm for bread,
and squatting without apparent discomfort. The plaintiff testified that she
would take two Tylenol 3 tablets before going grocery shopping; however, that
would not seem to account for the apparent ease with which she reached,
squatted and walked about for 40 minutes. I can only conclude she was feeling
much better by the time of the video.

[77]       
The plaintiff also substituted as a security guard for her husband on 10
– 15 occasions from November 2007 to April 2008, which was inconsistent both
with her testimony that she had not worked since the accident and the intensity
of pain she described.

[78]       
I further observe that Dr. Vaisler, in his medical report of September
21, 2009, noted at p. 8 that on examination of the plaintiff on March 12, 2009,
“she did not appear to be in any obvious discomfort during the interview nor
did she exhibit any definite findings of pain behaviour during the
examination.”

[79]       
I find that the plaintiff did not accurately recall the degree of her
pain to the detail and over the length of time elicited in her direct evidence.

[80]       
The unreliable nature of the plaintiff’s evidence, and resulting
inaccuracy as to her pre-accident low back condition and headaches, was offset
by the accuracy of the evidence of Dr. Singh, a witness called by the
defendants whom I found to be a thorough and forthright witness. His evidence
provides a clear picture of the severity of the plaintiff’s low back problems
and headaches before the accident. Dr. Singh’s testimony, together with Dr.
Gittens’ report of June 29, 2006, with which the plaintiff agreed, provide a
vivid picture of the serious nature of her pre-existing back condition.

[81]       
Drs. Singh, Sidhu, and Garcha and Mr. Schalk testified at trial and used
their clinical records to refresh their memories. The clinical or hospital
records of non-witnesses were not admitted into evidence for their truth, but
only for the purposes agreed to by counsel. Their agreement was to the effect
that: observations and treatments by the doctors are facts and admissible for
their truth; statements made by the patient are admissible for the fact they
were made but not for their truth; and, diagnoses made by the doctors are
admissible for the fact they were made but not for their truth.

[82]       
However, the contents of the records that were put to the plaintiff in
cross-examination are admissible for their truth because she agreed with them.
She often indicated her agreement by saying simply, “If it is written there,
then it is true”. I do not recall any instance in which she failed to agree
with the contents of a record put to her, and thus she adopted as true those
passages in her testimony. The effect was to confirm, in my view, the severity
of both her pre-existing lower back condition and her headaches before the
accident.

[83]       
The Court is also not without evidence of the plaintiff’s ongoing
symptoms because there are various objective findings of the medical
professionals that support certain of the symptoms she described. Her counsel
provided a helpful summary of objective findings on the physical examinations
conducted by the treating and assessing doctors and caregivers that support the
nature and extent of what I find to be the plaintiff’s injuries. The objective
findings also support some of the plaintiff’s evidence about ongoing symptoms,
which are not as debilitating as she described.

[84]       
The plaintiff’s evidence as to the intensity of her pain was not
entirely reliable. Therefore, I have based my conclusions on the objective
findings of the medical personnel.  I have also relied on the reports of Drs.
Vaisler and Regan, which are not in serious conflict as to her current
symptoms, diagnosis, and prognosis.

Collateral witnesses

[85]       
Mr. Dhadwal, the plaintiff’s husband, and Mrs. Gill, the plaintiff’s
sister, testified that after the accident, they assisted the plaintiff for some
time with homemaking and childcare. Mrs. Gill provided extensive assistance in
this regard. She also said the plaintiff was in pain, as reflected in her
behaviour. Mrs. Gill was a more precise witness, and very credible.

[86]       
Mr. Avtar Bhatti was called by the defendants. He testified that he had
spoken to the plaintiff at his berry farm on two occasions that he could
recall. On one occasion in July or August 2007, the plaintiff told him that she
was there to assist her mother to pick berries for an hour or so. The plaintiff
denied that she had spoken to Mr. Bhatti, but agreed she did attend Mr.
Bhatti’s berry farm with her mother who worked at picking berries in the summer
of 2007.

[87]       
I accept Mr. Bhatti’s evidence and find that either the plaintiff did
not remember talking to Mr. Bhatti, as the incidents were brief, or that she
was not telling the truth. It is more likely that Mr. Bhatti’s evidence
represented one more example of how the plaintiff’s poor memory made her a poor
historian. His evidence further underscores my finding that the plaintiff’s
evidence was unreliable and her evidence difficult to assess.

Video Evidence

[88]       
The defendants tendered video surveillance evidence of the plaintiff
taken at various times until April 2009. It depicts the plaintiff doing leg
exercises for 20 minutes at the gym on November 28, 2007, without any apparent
difficulty. Additionally, it shows her on December 7, 2007, walking with a
child and carrying a light laundry basket with her right hand. She walks fairly
slowly, speaks to a man sitting in a car, appears to limp a bit. I have already
referred to the video of the plaintiff grocery shopping in April 2009. I did
not otherwise find the video surveillance to be helpful.

Treating Physicians and Professionals

Dr. Jeevan Sidhu

[89]       
Dr. Sidhu became the plaintiff’s family doctor in November 2006, a month
after the accident. He did not have a complete picture of the plaintiff’s
condition before the accident, but was very forthright under cross-examination
as to the records that related to her previous condition.

[90]       
When Dr. Sishu first saw the plaintiff on November 6, 2006, he found
that although she had full range of motion in her neck, she had tenderness and
pain at the maximum limits of movement. His treatment plan was to have her
start physiotherapy and chiropractic treatment.

[91]       
The plaintiff saw Dr. Sidhu a few more times between that first visit
and December 13, 2006, when he noted that she had lower back pain, and pain in
all directions of her cervical spine. He diagnosed myofascial pain involving
her neck and lower back muscles.

[92]       
Between December 13, 2006 and February 20, 2007, either Dr. Sidhu or
another physician at the same clinic saw the plaintiff. She was assessed by Dr. Tewr,
who noted bilateral neck pain and lower back pain. He confirmed soft tissue
injuries and recommended massage, aquatherapy, and continued chiropractic
treatment.

[93]       
There followed a few more visits at the same clinic. Dr. Sidhu’s records
then reflect that on March 21, 2007, the plaintiff reported that her lower back
pain had worsened since she started the pool therapy. His records indicate that
over the next two-and-a-half years, she continued to have bilateral neck pain,
as well as right shoulder and lower back pain.

[94]       
In his entry for June 15, 2009, Dr. Sidhu noted that the plaintiff
reported that her neck and back pain were not improving, and that treatments
only helped temporarily. The plaintiff then suggested that she wanted to try
acupuncture and acupressure treatment, which Dr. Sidhu approved.

[95]       
Dr. Sidhu readily agreed that the plaintiff had back pain before the
accident, and that the findings in the March 2007 MRI were consistent with the
plaintiff’s complaints when she saw Dr. Gittens in June 2006. This confirms her
significant low back problem prior to the accident. Dr. Sidhu also confirmed
that the findings in the two CT scans of the plaintiff’s low back done in
December 2004 and July 2005 were consistent with her complaints of low back
pain before the accident.

Dr. Randhir Garcha

[96]       
The plaintiff received chiropractic treatment from Dr. Garcha on more
than 85 occasions, starting a month after the accident and continuing until
about the end of April 2008. At that point, Dr. Garcha advised the plaintiff
that he had done all he could for her, and that she should stop treatment and
attend only when she had flare-ups or increased pain.

[97]       
The plaintiff only attended on three further occasions. She did,
however, try another chiropractor, Dr. MacKenzie, but with no further success.

[98]       
Dr. Garcha’s findings on the plaintiff’s first appointment on November
7, 2006 were that she had reduced range of motion of her neck and lower back,
and that she presented with neck pain bilaterally, headaches, lower back pain
bilaterally with pain to the knees, and right shoulder and arm pain to the
wrist. He noted difficulties sleeping, sitting, and standing and walking for
more than ten minutes.

[99]       
Dr. Garcha noted that heat and massage relieved the plaintiff’s pain. He
administered various treatments, including heat and stretches. Several times,
Dr. Garcha advised the plaintiff to engage in an active lifestyle,
including walking, stretching, and exercising, but not to lift heavy items.

Kevin Schalk

[100]     [100]   Mr.
Schalk is a physiotherapist. He treated the plaintiff from February 26, 2007
until November 25, 2007. In the history she related to him on her first visit,
the plaintiff said she had no problems before the accident; she did not mention
her low back, headaches or sleeping problems.

[101]     Mr. Schalk
testified the plaintiff had tight sub-occipital muscles (at the base of the
skull) and tight upper fibers of the trapezius. He said there was no change in
her pain or condition over the time he treated her. He did not observe a
gradual decrease in pain level.

[102]     Mr. Schalk
noted on June 27, 2007, that the plaintiff was not interested in doing
exercises and he saw little effort on her part. He felt her motivation and
effort were a bit low. He noted on July 18, 2007, that the plaintiff had a
noticeable limp and was not weight bearing as much on her right side.

[103]     Mr. Schalk
said the plaintiff was increasing her exercises very little as time went by,
although she was increasing them. He saw her several times with her small
children, and thought they were with her quite often. The plaintiff denied
this.

[104]     Mr. Schalk
said that the plaintiff simply stopped attending for physiotherapy in late
November 2007 without providing a reason. He continued to see her occasionally
at the pool.

Expert Evidence

Dr. Barry Vaisler

[105]     Dr.
Vaisler is an orthopaedic surgeon who testified on behalf of the plaintiff. He
assessed the plaintiff on March 12, 2009, and provided a medical report dated
September 21, 2009.

[106]     I found
Dr. Vaisler to be a fair and objective witness. I accept his opinion, except,
for reasons I discuss later, as to the plaintiff’s inability to work because of
her right shoulder injury.

[107]     Dr.
Vaisler’s report sets out the history of the plaintiff’s injury in some detail. 
This summary is useful because it provides a concise and thorough history of
the plaintiff’s visits to medical personnel, diagnoses, procedures and
treatments from the time of the accident to his examination of her on March 12,
2009. It is based on the clinical records that he reviewed and which are
subject to counsels’ agreement as to the purpose for which they are admissible.
They also form part of the foundation for Dr. Vaisler’s opinion. This medical
history is consistent with and gathers together the other evidence, which
supports its accuracy.

[108]     Dr.
Vaisler’s review of the history of the plaintiff’s injuries was not disputed,
except insofar as it contained the plaintiff’s subjective complaints, which are
hearsay in any event. The defendants argue that her testimonial evidence about
her complaints was unreliable.

[109]     I observe
that the plaintiff’s complaints as noted in Dr. Vaisler’s post-accident history
are generally consistent with the parts of her testimony that I accept. They
are also consistent with the objective findings regarding her injuries. Thus,
the hearsay nature of the plaintiff’s statements in Dr. Vaisler’s summary is
not of great concern. Of course, it is the testimonial evidence of the
plaintiff that I must assess, and not her hearsay statements.

[110]     The
following review of the plaintiff’s post-accident history derives substantially
from Dr. Vaisler’s report.

[111]     After the
accident, the plaintiff was taken by ambulance to Surrey Memorial Hospital. The
ambulance crew report noted that she was complaining of neck and low back pain,
along with a frontal headache. On admission to the emergency department, she
was assessed and diagnosed as having sustained a soft tissue injury. X-rays of
her lumbar spine were reported to be normal, but x-rays of her cervical spine
demonstrated a probable stable fracture of the spinous process of the C2
vertebrae. Arrangements were made for a CT scan and the plaintiff was
discharged home.

[112]     The
plaintiff advised Dr. Vaisler that over the following number of days, she had a
significant exacerbation of the pain in her neck, low back, posterior shoulders
and, specifically, her right shoulder.

[113]     The
plaintiff saw Dr. Singh on October 4, 2006, at which time she reported
headache, neck pain and right shoulder symptoms. Dr. Singh noted painful
restricted movement of her cervical spine with no neurovascular abnormalities,
and diagnosed a cervical strain. A CT scan of her cervical spine the following
day indicated a well corticated bony fragment between the spinous process of
the C2 and C3 vertebrae. The bony fragment was reported by the radiologist to
most likely be an old healed fracture fragment. No acute injury was noted. The
plaintiff was also noted to have moderate right foraminal narrowing due to
uncovertebral degenerative change at C2/3 and C3/4.

[114]     The
plaintiff saw Dr. Singh on October 6, 2006, complaining of painful restricted
movement of her right shoulder, along with moderate tenderness.

[115]     On October
10, 2006, the plaintiff was seen in the emergency department of Delta Hospital.
She complained of ongoing neck, left shoulder and upper back pain. She was
noted on examination to have a full range of motion of her neck with tenderness
on the left side of her neck and left shoulder. X-rays of her right shoulder
taken on October 13, 2006 were reported to be normal.

[116]     The
plaintiff saw Dr. Singh three times between October 16 and November 6, 2006.
She reported persistent pain in her neck, low back and right shoulder, as well
as headaches. Dr. Singh started her on physiotherapy, and also referred her to
Dr. Shahid for an orthopaedic consultation.

[117]     The plaintiff
saw Dr. Shahid on December 1, 2006, and reported pain throughout her entire
back.  He noted that she was attending for physiotherapy and chiropractic
treatments. On examination, Dr. Shahid noted that the plaintiff had full range
of motion of her trunk but that she complained of pain with movement. He also
noted that downward pressure applied on her shoulders provoked pain in her low
back. She had diffuse tenderness over her thoracic and lumbosacral paraspinous
muscles with tenderness mainly over the left posterior iliac crest. He did not
note any muscle spasm or neurologic abnormalities. Dr. Shahid diagnosed the
plaintiff as having sustained a soft tissue injury, and instructed her in the
principles of back care. He also recommended that she be referred to the
Canadian Back Institute for a muscle conditioning programme.

[118]     The
plaintiff saw Dr. Sidhu on January 16 and February 2, 2007, reporting of neck
and low back pain. Dr. Sidhu noted that she had a full range of motion but had
pain with movement.

[119]     The plaintiff
was referred to Sun God Sports and Orthopaedic Physiotherapy Clinic. At an
assessment on February 26, 2007, she reported pain in her neck and low back.
The plaintiff was noted to have a restricted range of motion of her cervical
spine, and painful extension of her lumbar spine. Her physiotherapist noted on
that date that she had no problems before the accident.  The plaintiff
continued to report shoulder, neck and lumbar spine symptoms on subsequent visits
on May 4 and June 5, 2007.

[120]     When the
plaintiff saw Dr. Sidhu on March 7, 2007, she was still complaining of neck and
low back pain, along with headaches. On examination, he noted paracervical and
paralumbar tenderness, along with limited flexion of her lumbar spine to her
knee and a full range of motion of her cervical spine but with pain with
movement.

[121]     An MRI of
the plaintiff’s lumbar spine was carried out on March 14, 2007. It was reported
as showing a small annular tear with a moderate-sized diffuse disc bulge at
L4/5. The bulge was flattening the anterior thecal sac. There was mild
bilateral foraminal narrowing especially involving the L4 nerve root on the
right. There was an annular tear at the L5/S1 level with a posterocentral and
right paracentral broad based disc protrusion which was contracting the
posterocentral and right paracentral broad based disc protrusion which was
contracting the right S1 never root.

[122]     The
plaintiff saw Dr. Sidhu on March 21, 2007, and continued to report low back
pain. Dr. Sidhu advised her to limit activity, engage only in pool therapy and
avoid any lifting or repetitive bending. He also referred her to Dr. Gittens
for a neurosurgical opinion.

[123]     The
plaintiff saw Dr. Gittens on May 2, 2007. Dr. Gittens reviewed the MRI findings
with her and recommended referral to Surrey Memorial Hospital for a series of
epidural injections, weight loss and further rehabilitation or an exercise
program. He did not feel surgery was indicated.

[124]     When she
saw Dr. Sidhu on May 11, 2007, the plaintiff was continuing to complain of neck
and low back pain.

[125]     The
plaintiff saw Dr. Regan for an independent orthopaedic medical examination on
July 23, 2007. I discuss his report in detail later.

[126]     The
plaintiff was assessed at the Surrey Memorial Hospital Pain and Symptom
Management Clinic on September 7, 2007 for management of her low back and right
leg pain. On examination, she was noted to be ambulating with a limp. Muscle
strength in her right lower limb appeared to be slightly weaker than the left,
and she had reduced sensation to light touch on the lateral aspect. She was
tender from L3 to S1 over the coccyx and especially over the iliotibial band
and her right sacroiliac joint. She was diagnosed as having iliotibial band
syndrome, along with radicular pain from her L4/5 disc injury. The plaintiff
was given trigger point injections over her right iliotibial band and right
sacroiliac joint, and she was advised to speak with Dr. Sidhu with regards to
antidepressants for her depression.

[127]     The
plaintiff attended the clinic again on November 2, 2007.  The examining
physician noted no improvement as a result of the trigger point injections. The
plaintiff was given an epidural steroid injection. She attended for a follow-up
appointment on December 6, 2007 and was noted to have improvement in the pain
radiating down her legs but continuing low back and right sacroiliac joint
pain. She was given facet joint injections at L3/4 and L4/5, as well as in the
right sacroiliac joint. At an appointment on January 17, 2008, the plaintiff
was noted to have improved but was still complaining of low back pain and had
some tenderness of her iliotibial band. She was given injections in the right
sacroiliac joint and bilateral blind facet joints.

[128]     The
plaintiff saw Dr. Sidhu on February 6, April 4, September 17 and October 16,
2008. She consistently reported pain in her neck, low back (primarily on the
right side), and pain radiating either down her right leg or to her right hip.
At the October 16 appointment, Dr. Sidhu also noted the plaintiff’s complaints
of shoulder pain. He concluded that she was incapable of pursuing any gainful
occupation and that he did not expect any change.  He saw the plaintiff again
in November 2008 when she complained of persistent shoulder pain.  He arranged
for her to undergo an MRI examination, which was subsequently carried out on
December 16, 2008.

[129]     The MRI
indicated a small partial bursal-sided tear in the subscapularis tendon and a
partial articular sided tear of the posterior subraspinatus and anterior
infraspinatus tendon. A Type 1 acromion was noted. Dr. Sidhu arranged for the
plaintiff to see Dr. Telfer for an orthopaedic opinion with regards to her
right shoulder pain.

[130]     The
plaintiff informed Dr. Vaisler that she was subsequently managed with an
injection into her right shoulder, but that it failed to relieve her symptoms.
She also informed him that her right should pain had worsened for three or four
months prior to his seeing her.

Opinion

[131]     Dr.
Vaisler’s opinion is that as a result of the accident, the plaintiff sustained
a soft tissue musculo-ligamentous injury to her neck and low back, along with
subacromial impingement of her right shoulder.

[132]     With
respect to the plaintiff’s neck, Dr. Vaisler indicated that he expected her
neck symptoms to improve with the treatment recommendations he provided, which
included a regular program of neck strengthening and postural exercises, and
attendance at a neck and back education program. Dr. Vaisler further stated, at
p. 10 of his report, that “at this point in time, over 2 ½ years after the
motor vehicle accident, it is more likely than not that she will continue to
complain of intermittent and disabling neck pain from time to time with the
above noted activities for the foreseeable future.”  Those activities included,
for example, prolonged sitting and driving (which, in terms of relevance to her
claim for loss of future earning capacity, security guard work does not seem to
require).

[133]     With
respect to the plaintiff’s low back, Dr. Vaisler noted that she had a history
of back problems before the accident and in his (undisputed) opinion, the
accident probably aggravated pre-existing symptoms she was having before. He
reviewed Dr. Singh’s pre-accident clinical records and noted that the plaintiff
had had complaints of low back and right lower limb pain since at least July
20, 2002. He observed that when seen by Dr. Sidhu on December 20, 2004, the
plaintiff was complaining of pain radiating to both lower limbs with associated
numbness, and that the pain appeared to be worsening since April 2005.

[134]     Dr.
Vaisler also noted that Dr. Gittens saw the plaintiff on June 29, 2006, at
which time she complained of constant low back pain, with radiation to both
calves and associated numbness and weakness of her right foot. He further
observed that two CT scans of the plaintiff’s lumbosacral spine carried out on
December 11, 2004 and July 8, 2005 demonstrated disc bulging at L4/5 and L5/S1.
Dr. Vaisler observed that Dr. Gittens was arranging for the plaintiff to have
an MRI scan of her lumbar spine when he saw her on June 29, 2006. The MRI was
not done until March 2007, after the accident.

[135]    
Dr. Vaisler opined, at p. 10 of his report:

More
likely than not, her pre-existing lumbar degenerative disc disease with mild
disc protrusions at L.4/5 and L.5/S.1 rendered her more at risk for sustaining
a back injury as a result of the accident of October 3, 2006 and is at least in
part responsible for the prolongation and severity of her current back
symptoms.

[136]     With
respect to treatment, Dr. Vaisler said that the plaintiff should engage in back
and abdominal muscle strengthening exercises, which would be helped by
attendance at a back and neck education program. He also said that she should
improve her general physical conditioning and make use of an Obus Forme back
support. With these treatment recommendations, Dr. Vaisler opined, at p. 11,
that “it is more likely than not that her low back symptoms will gradually
improve, but more likely than not that she will continue to complain of
intermittent pain and disability related to her low back with the above noted
activities for the foreseeable future”.

[137]    
It is common ground between the parties that the plaintiff’s right
shoulder injury was caused by the accident. Dr. Vaisler’s opinion with respect
to her shoulder was as follows, at p. 12 :

In
view of the persistence of right shoulder symptoms 2 ½ years after the motor
vehicle accident, it is more likely than not that her shoulder symptoms will
continue to persist in spite of the above noted treatment recommendations. If
she feels she is not managing, the next step is proceeding with an arthroscopic
subacromial decompression of her right shoulder which is carried out under
general anaesthetic on a day care basis.

[138]     Dr.
Vaisler explained that if the plaintiff had the surgery, her post-operative
physiotherapy would probably require 3-4 months, followed by a graduated return
to activities over the following 2-3 months.

[139]     Dr.
Vaisler was of the view that the plaintiff was not capable of working
competitively on a part-time or full-time basis when he saw her on March 12,
2009. He also expressed the view that if her right shoulder symptoms failed to
respond to treatment, she would most probably be unable to return to work
involving sustained or repetitive reaching at or above shoulder level, or heavy
lifting above the waist.

[140]     As counsel
for the defendants point out, however, Dr. Vaisler is not an occupational
therapist. Further, he relied to some extent on the plaintiff’s self-reporting
that she had not worked since the accident, which was untrue. As earlier noted,
she worked as a security guard in substitute for her husband on numerous
occasions between November 2007 and April 2008.

[141]     Additionally,
the only work the plaintiff could return to after her third maternity leave was
that of a security guard. Her low back condition before the accident prevented
her from doing any work that involved labour. According to the evidence, work
as a security guard does not require any sustained or repetitive reaching at
and above shoulder level, or heavy lifting above waist level.

[142]     For these
reasons, I do not accept Dr. Vaisler’s opinion with respect to the plaintiff’s
inability to work as a result of the injury to her right shoulder.

[143]     Dr.
Vaisler also stated that the plaintiff should undergo his treatment
recommendations for the pain on the lateral aspect of her right hip and
shoulder. He said she may require further epidural steroid injections for
sciatica and that would be best done under the supervision of Dr. Gittens.

[144]     In his
testimony at trial, Dr. Vaisler said that the results of his physical
examination of the plaintiff’s low back were very similar to those of Dr.
Gittens, except that Dr. Gittens found some weakness in the plaintiff’s right
leg. Dr. Vaisler confirmed the annular tear at L4-5 and L5-S1 vertebrae in the
low back were, in fact, herniations of the disc at those levels, and that the
CT scan done in July 2005 showed evidence of pressure on the thecal sac that
would result in pain in the low back and radiating down the legs.

[145]     Dr.
Vaisler agreed that the CT scan of the lumbar spine done in July 2005 referred
to an impingement on the nerve root that can cause pain and can be very
disabling.

[146]     Furthermore,
Dr. Vaisler agreed that the annular tear, if pressing against the nerve root,
could cause pain. He said the symptoms from tears can take weeks, months, or
years to disappear, and may never disappear.

[147]     Dr.
Vaisler observed that Dr. Gittens, based on what the plaintiff had told him in
late June 2006, said the plaintiff was “significantly incapacitated” as a
result of her low back/leg pain.  Dr. Vaisler confirmed that the findings of
the March 2007 MRI were consistent with the plaintiff’s complaints in late June
2006 when she saw Dr. Gittens, just three months before the accident. I do
observe, however, that late June 2006 was only two months after the plaintiff
gave birth by Caesarean section to her third child, and that pregnancy and
working as a security guard exacerbated her back pain.

[148]     Dr.
Vaisler was clear that the plaintiff’s pre-accident low back pain was the
result of the abnormalities in the discs and/or the degeneration of the discs.
He indicated that the herniations were probably causing the pain, but it may
have been from the facet joints or the degeneration.

[149]     Dr.
Vaisler agreed that the plaintiff’s low back condition before the accident
would affect her ability to function at work and at home.

Dr. William Regan

[150]     Dr.
William Regan is an orthopaedic surgeon who specializes in joints of the upper
extremity and knees.  He provided an opinion on behalf of the defendants. Dr. Regan
conducted physical examinations of the plaintiff and completed two medical
reports, one dated July 26, 2007, and the other, December 1, 2009.

[151]     In both
his reports, particularly that of December 2009, Dr. Regan reviewed the
plaintiff’s medical history as derived from her clinical records. However, Dr. Vaisler
had a greater number of the plaintiff’s clinical records, and as I have already
summarized his review of the plaintiff’s medical history, I will not go through
it again here.

July 26, 2007 Report:

[152]     In completing
the July 26, 2007 report for the plaintiff’s ICBC claim adjuster, Dr. Regan
reviewed the plaintiff’s CL-19 medical report prepared by Dr. Sidhu and the
Surrey Memorial Hospital emergency room records. The records in Dr. Regan’s
possession indicated that immediately following the accident, the plaintiff
felt headache, back pain, and neck pain radiating into her right shoulder and
low back.

[153]     On
cross-examination, Dr. Regan said that he did not have the records of the
plaintiff’s physiotherapists and chiropractor, whom she had visited numerous
times. He also agreed that he did not have a copy of Dr. Gittens’ consultation
report from before the motor vehicle accident, and that this record would have
been important, as it made clear that the plaintiff had low back pain before
the accident. He only received Dr. Gittens’ report the morning he testified at
trial.

[154]     In
addition to reviewing medical records, Dr. Regan also conducted a physical
examination of the plaintiff on July 23, 2007. He noted at p. 2 of his report
that the plaintiff’s chief complaints were “low back pain radiating down her
right buttock, right sided cervical spine pain radiating into her right
shoulder with associated headaches and right shoulder pain”.

[155]     On
examination, Dr. Regan noted that the plaintiff’s neck pain was in the region
of the C7/T1 level with spinous process pain in this area. He did not note any
paraspinal spasm, but did note pain along the right trapezius. The plaintiff’s
cervical spine had a full range of motion and there was no cervico-thoracic
pain. On stance phase, she had low back pain on the right, radiating into the
right gluteal fold.

[156]     Dr.
Regan’s objective findings were that the plaintiff had poor lumbar spine
movement and her right shoulder had a full range of motion with moderately
positive impingement signs – that is, pain elicited upon lifting the arm. Dr.
Regan noted crepitation, a palpable or audible noise, in the right shoulder
that was not seen on the left.

[157]     Dr. Regan
diagnosed the plaintiff with paraspinal cervical and lumbar spine pain; right
trapezial muscle strain; degenerative disc disease in the lumbar spine,
radiating to her right buttock; and mild impingement syndrome in the right
shoulder.

Opinion:

[158]    
At p. 5 of his report, Dr. Regan expressed his opinion that:

It
is clear there was previous evidence of injury to her cervical spine, as
evidenced by an old corticated bone fragment between the C2/3 level.

[159]     However,
during cross-examination, Dr. Regan admitted that while there was clear
evidence of prior damage to that area, it could have been asymptomatic for a
number of years.

[160]    
Dr. Regan continued, at pp. 5-6 of his report:

In
addition, she had previous problems with her low back, as evidenced by a prior
CT scan showing degenerative disc disease and disc bulging at the L4/5 and
L5/S1 levels. As a result, the motor vehicle accident of October 3, 2006 has
served to aggravate pre-existing soft tissue injuries to the cervical and
lumbar spine, but is not causative of them.

[161]     Under
cross-examination, Dr. Regan clarified that the accident did cause the
plaintiff’s neck pain.

[162]     With
respect to the plaintiff’s right shoulder, Dr. Regan also opined at p. 6 of his
report that the “mild impingement syndrome right shoulder is temporally the
result of the motor vehicle accident of October 3, 2006.”

[163]     Dr. Regan
expressed his view that no surgical intervention would help the plaintiff’s
neck or low back, and he agreed with Dr. Gittens’ recommendations for
conservative care, stating that local injections and/or acupuncture for her low
back were advised. In addition, Dr. Regan supported the use of an Obus Forme
pillow to support the neck, continued pool exercise, physiotherapy and
stretching. He also observed that the plaintiff’s flat affect did not bode well
for her recovery from her physical ailments, and indicated that she might need
counselling to deal with this.

[164]     Dr. Regan
stated that the plaintiff’s best possibility of gaining significant pain relief
lay with abdominal strengthening and weight reduction. He opined that losing a
significant amount of weight would help her low back pain and likely her neck
pain. Dr. Regan recommended an MRI for clarity of diagnosis to plan further
treatment in the event the plaintiff’s right shoulder did not settle with a
combination of pool exercises and weight reduction.

December 1, 2009 Report:

[165]    
As earlier noted, Dr. Regan reviewed an array of clinical records in
preparing his second report. He also conducted a physical examination of the
plaintiff on November 20, 2009. He summarized her chief complaints at the time
as follows, at p. 5 of his report:

She
complains of pain predominantly noted in her spine. This is predominantly on
her right and left side of her neck, radiating to the posterolateral aspect of
her right shoulder. She has associated headaches with proximal radiation of her
neck pain, and her pain radiates distally to her elbow and forearm. She notes
no numbness into her right upper extremity.

[166]     On
examination, Dr. Regan once again found that the plaintiff had a flat affect
and was significantly out of shape and overweight for her height. He found that
her right shoulder moved with guarding to 145 degrees of active forward
elevation, and he noted continued crepitation over the subacromial space right
shoulder, not seen on the left. He also noted pain over the posterolateral and
lateral aspect of the right shoulder. Most of her pain was over the right side
of the paraspinal area in the thoraco-lumbar spine.

[167]     Dr. Regan
diagnosed the plaintiff with right greater than left paraspinal muscle pain, cervical;
trapezial muscle pain on the right; impingement syndrome in the right shoulder;
and degenerative disc disease in the lumbar spine.

Opinion:

[168]     Dr.
Regan’s opinion in his second report remained consistent with that in the
earlier July 26, 2007 report.

[169]    
At p. 8, Dr. Regan considered the fact that the plaintiff had a prior
history of cervical spine trauma with evidence of a corticated bone fragment
and degenerative changes at the C2/3 and C3/4 levels. He stated:

It
is clear that she had previous degenerative disc disease lumbar spine, as
evidenced by previous CT scans and consultation with spine surgeon, Dr. Robert
Schweigel, prior to the accident in question. As a result, her motor vehicle
accident of October 3, 2006 has aggravated these pre-existing problems, but is
not causative of them.

[170]     At trial,
Dr. Regan testified that the plaintiff’s right shoulder pain was caused by a
combination of irritation of her neck from the accident and consequent pain
radiating to the shoulder, pain referred from the trapezius muscle which was
injured in the accident, and some intrinsic pathology of her shoulder.

[171]    
With respect to the plaintiff’s prognosis, Dr. Regan wrote as follows,
at p. 9:

Her
prognosis is guarded at this time.  She used to function as a security guard. 
She has had a great deal of conservative care to manage her back and neck pain,
which is her most significant complaint. In spite of everyone’s best effort,
she has not responded well to a conservative treatment algorithm. She has been
assessed by a neurosurgeon, who does not feel operative intervention is
indicated.

[172]     Dr. Regan
opined that the mainstay of treatment was for the plaintiff to get her body
weight in line with her height, which would significantly help her low back
pain. He suggested an aqua-exercise program and further injections. In
addition, Dr. Regan opined that the plaintiff required help with her mood
disorder and proper control of her diabetes and hypothyroidism.

[173]     Dr. Regan
agreed with Dr. Vaisler’s opinion against operative intervention for the
plaintiff’s right shoulder, opting instead for conservative care. He believed
that results of surgery in her case would be poor and should be avoided at all
cost; the additional trauma of surgery could worsen her chronic pain, and she
would not easily rehabilitate because of her mood disorder.

[174]     On
cross-examination, Dr. Regan agreed that the prognosis for full recovery from
neck and back pain after two years of symptoms is very poor unless some
corrective measures are taken. He believes the plaintiff will continue to
experience pain in the neck, shoulder, and low back.

CAUSATION

[175]    
The principles of causation from Athey v. Leonati, [1996] 3
S.C.R. 458 at 466-468, were concisely summarized by Ross J. in McCreight v.
Currie, 2007 BCSC 127 at para. 112, as follows:

(a)        causation
is established where the plaintiff proves, to the civil standard of a balance
of probabilities, that the defendant caused or contributed to the injury;

(b)        the
"but for" test is the general test for causation. Where this test is
unworkable, causation is established where the defendant’s negligence
materially contributed to the occurrence of the injury;

(c)        the
defendant’s negligence need not be the sole cause of injury; so long as it is a
material cause, the defendant will be liable;

(d)        there
is no apportionment between tortuous and non-tortuous causes;

(e)        the
plaintiff is to be restored to the position she would have been in absent the
defendant’s negligence. Therefore, the defendant need not compensate the
plaintiff for the debilitating effects of pre-existing conditions which the
plaintiff would have experienced anyway; and

(f)        if there is a measurable risk
that a pre-existing condition would have detrimentally affected the plaintiff
in the future, that must be taken into account and the award reduced
accordingly.

[176]     The
application of those principles requires comparing the plaintiff’s condition
before and after the accident. This exercise is difficult because, as discussed
earlier, the plaintiff was a poor historian. Her evidence as to her
pre-accident condition was vague and inaccurate until she agreed with the
contents of certain clinical records when they were put to her in
cross-examination. These records revealed the severity of her pre-accident low
back condition and headaches.

[177]     The
plaintiff had a pre-existing history of headaches brought on by stress.  She
also suffered low back pain from her heavy labour work at the greenhouse. The
pain had worsened by April 2005, such that Dr. Singh wrote four medical notes
that year, each indicating that she was unable to work for four weeks due to
her low back pain. The plaintiff was “significantly incapacitated” with back
pain in late June 2006, just two months after the birth of her third child by
Caesarean section, and had seen a specialist about it. However, in the ensuing
months from July to the end of September 2006, the plaintiff’s low back pain
was improving such that just before the accident, she was able to do light
packing for the family’s move, as well as light housekeeping and cooking.

[178]     Mr.
Dhadwal, the plaintiff’s husband, testified that the plaintiff had a lower back
problem in 2005 but he did not recall much.

[179]     Both Mr.
Dhadwal and Mrs. Gill, the plaintiff’s sister, supported the plaintiff’s
evidence that she was in considerable pain in the months after the accident.
They both significantly assisted in household tasks and childcare. Mr. Dhadwal
said that Mrs. Gill cleaned the house, bathed the children, and prepared food
for them. This went on for approximately three years after the accident until
six months before he testified in early March 2010. I do note, however, that
the plaintiff could only do light chores and light packing even before the
accident, and was incapacitated as of late June 2006.

[180]     The
experts and other objective evidence of injury do support a finding that the
plaintiff was in considerable pain in the months after the accident. The pain
gradually improved to the point that she was able to do security work, as
demonstrated by her substituting for her husband on 10 – 15 occasions between
November 2007 and April 2008. It is likely that she was unable to perform any
more than that amount of work immediately before the accident in any event.

[181]     Although
Dr. Regan’s description of the plaintiff’s injuries is consistent with that of
Dr. Vaisler, I find Dr. Vaisler’s report to be more reliable because he had all
of the information about the plaintiff’s pre-existing condition that Dr. Regan
did not. Further, Dr. Regan referred in his report to a pre-existing shoulder
injury that he said was aggravated by the accident. However, the plaintiff had
been asymptomatic with respect to her shoulder for years before the accident,
and I consider that the accident caused her right shoulder impingement.

[182]     The
objective findings of injury and pain described in the evidence of the medical
witnesses  – Drs. Regan, Vaisler, Garcha and Sidhu – all provide support for a
conclusion that the accident caused the plaintiff’s right shoulder impingement,
and soft tissue injury (musculo-ligamentous) to her low back and neck (with
associated headaches). The injury to her low back prolonged and aggravated the
plaintiff’s pre-existing back condition. The accident exacerbated the intensity
and frequency of the plaintiff’s pre-existing headache condition, which has now
likely returned to its pre-accident state. The accident also caused dizziness,
which essentially resolved about six months before trial, and
musculo-ligamentous injury to the plaintiff’s ribs, which resolved two or three
months after the accident.

[183]     Dr.
Vaisler and Dr. Regan agree on the nature of the plaintiff’s shoulder injury,
which I find is the most prolonged of the injuries caused by the accident. She
has a right shoulder impingement.  It causes the plaintiff pain with sustained
use and lifting of her right arm. It is probable that her shoulder symptoms
will continue in spite of the treatment recommendations.

[184]     Dr. Regan
agreed that conservative care of the plaintiff’s right shoulder should be
advocated at all costs, and he noted that Dr. Vaisler said surgical
intervention should be held as a last resort. Dr. Regan said the impingement is
in an area not usually helped with operative intervention.

[185]     The
plaintiff has full range of motion in her neck and did so when Dr. Vaisler saw
her on March 12, 2009. She had no paracervical muscle spasm but pain at the
extremes of movement. I find that he plaintiff’s neck injury is an ongoing, but
intermittent, problem that will probably improve if she is more active, as suggested
by Dr. Vaisler. If she carries out a regular program of neck strengthening and
postural exercises on her own, and attends a neck and back education program
such as that offered by the Canadian Back Institute or Karp Rehabilitation, it
will improve significantly.

[186]     The
plaintiff should also obtain an Obus Forme back support for prolonged sitting
and driving as Dr. Vaisler recommended, and embark upon a regular physical
fitness routine, such as swimming or Pilates. She must follow the advice of Dr. Regan
who said, “[t]he mainstay of treatment for her is to get her body weight in
line with her height, which will significantly help her low back pain.” He also
suggested an aqua-exercise program for her and perhaps further trigger point
injections. Dr. Vaisler similarly said that weight loss would also be
beneficial.

[187]     Significantly,
the accident aggravated the plaintiff’s pre-existing low back injury (including
degenerative disc disease) and pain by imposing a soft tissue injury on it.

[188]     However, I
find that at least by April 2008, the exacerbation of the plaintiff’s low back
pain caused by the accident had resolved to a state approximately similar to
its state just before the accident, when she was able to do light packing and
household work.  Were this not the case, she would not have been able to
substitute for her husband as a security guard. Although she generally worked
two to three hours at a time, she did three to four full time shifts, and she
would not have been able to do more than that immediately before the accident,
in any event. I therefore find that the plaintiff returned to her pre-accident
state regarding her low back injury about 14 – 18 months after the accident.

[189]     I note, as
well, the evidence of Dr. Vaisler that when he examined the plaintiff on March
12, 2009, her back had returned to its pre-accident condition, as described by
Dr. Gittens in his report of late June 2006, and as it had improved somewhat
over the summer of 2006, just before the accident. This is consistent with the
video surveillance of the plaintiff grocery shopping in April 2009.

DAMAGES

Non Pecuniary

[190]     The
purpose of a non-pecuniary damage award is to compensate a plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. While each award
must be made with reference to the particular facts of the case, other
decisions may assist the court in arriving at an award that is fair to both
parties: Smaill v. Williams, 2010 BCSC 73 at para. 78.

[191]    
In Staply v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at para.
46, Kirkpatrick J.A., for the majority, set out a non-exhaustive list of
factors to consider in assessing general damages:

(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;

(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, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C.C.A.)).

[192]     The
defendants submit that damages in the range of $25,000 to $35,000 are
appropriate under this head, with $27,500 as the upper end of reasonable. They
rely on the following authorities: Job v. Van Blankers, 2009 BCSC 230; Perreault
v. Wolczuk, 2001 BCSC 195; and Campbell v. Makela, 2003 BCSC 634.

[193]     In my
view, these decisions provide a range of non-pecuniary damages that is too low
based on the circumstances of the present case, where the plaintiff continues
to suffer from neck and shoulder injuries three-and-a-half years after the
accident, and has chronic pain. The accident aggravated her previous low back
injury, which did not resolve to its pre-accident condition until sometime
between November 2007 and April 2008, about 18 months after the accident.

[194]     The plaintiff
relies on the following cases in support of her submission that $80,000 is the
appropriate quantum for non-pecuniary damages: Kasic v. Leyh, 2009 BCSC
649; Predinchuk v. Spencer, 2009 BCSC 1396; Thomas v. Bounds,
2009 BCSC 462; and Lee v. Metheral, 2006 BCSC 1841.

[195]     I find,
conversely, that these cases support higher awards than is fair in this case
because the defendants have no obligation to compensate the plaintiff for
symptoms attributable to her pre-accident low back condition.  That said, I
find that an award that is just and fair to both parties is $50,000.

[196]     As I have
already discussed, the plaintiff’s testimony about her symptoms and pain was at
times vague and at others, exaggerated. Nevertheless, I accept that she
suffered substantial pain for months after the accident, as is supported by the
medical evidence in this case. Her pain gradually improved, and she was able to
substitute for her husband at work about 14 to 18 months after the accident,
albeit primarily for a few hours at a time but also with a few full-time
shifts. By that time, her neck and shoulder pain were manageable. The
aggravation of her pre-existing low back condition had also resolved such that
her back had returned to its pre-accident condition.

FAILURE TO MITIGATE

[197]     A plaintiff
has a duty to take reasonable steps to minimize any loss relating to her
injuries. The requirement that a plaintiff mitigate her losses prevents her
from recovering for harm and loss caused by her own neglect. However, the
defendant bears the onus of proving that the plaintiff could reasonably have
avoided some part of her loss by mitigation: Graham v. Rogers, 2001 BCCA
432, 90 B.C.L.R. (3d) 69, leave to appeal refused [2001] S.C.C.A. No. 467, per
Rowles J.A., for the majority.

[198]     In the
present case, the defendants say that the plaintiff unreasonably failed to
follow the advice of doctors and medical personnel, including Dr. Vaisler and
Dr. Regan, to lose weight and to exercise. Dr. Sidhu also testified that
losing weight and exercise would be very beneficial for the plaintiff.

[199]     Dr.
Vaisler agreed that Dr. Gittens’ recommendations in June 2006 that the
plaintiff lose weight and undertake an exercise program, given her low back
complaints, were appropriate. The plaintiff told Dr. Vaisler that she had not
been doing any exercises for her low back. Her evidence on examination for
discovery was that she had not been doing any regular exercises before the
accident.

[200]     The
plaintiff acknowledged that she was advised by doctors, both before and after
the accident, to lose weight, primarily to improve her lower back symptoms.
This included Dr. Vaisler and Dr. Regan.

[201]     The
surveillance video shows the plaintiff using an exercise machine at the gym.
She decided not to renew her gym membership in January 2009, saying that exercising
did not improve her symptoms. I understood her to be mainly referring to her
low back symptoms.

[202]     The
plaintiff blames her weight on a thyroid problem, but no evidence was called to
support this theory. She also argues that there is a trend of weight loss of
almost 25 pounds documented by the various medical practitioners. Despite this
weight loss over the period from the accident to late 2008, it did not make any
difference to her medical condition. Accordingly, she submits that the
defendants have not met the burden of proof on this issue.

[203]     There is
no evidence of the plaintiff’s weight at the time she testified at trial in
early 2010. She is overweight, and may have gained back any previously lost
weight. There is also no evidence that she followed any medically prescribed
diet or diet of her own. All that the plaintiff said was that she reduced her
food intake, but did not lose any weight.

[204]     The
plaintiff’s evidence about walking (as exercise) was inconsistent as between
cross-examination and examination for discovery. Her evidence in the area of
exercise and weight loss was defensive.

[205]     All that
said, it is my interpretation of the evidence that the medical advice to lose
weight was directed at the plaintiff’s low back condition, which I find had
returned to its pre-accident state by at least April 2008. I do not find on the
evidence that any failure to exercise or to lose weight had any negative effect
on the plaintiff’s chronic neck and right shoulder impingement, which were the
new injuries caused by the accident.

[206]     If I am
wrong in that conclusion, then, as Dr. Sidhu testified, I find that the
plaintiff’s injuries made it difficult for her to exercise or lose weight. It
is also difficult to do either when suffering from low mood or depression,
which, based on the medical evidence, the plaintiff had both before and after
the accident. The defendants must take the plaintiff as they found her,
including her emotional condition.

[207]     Therefore,
all things considered, I cannot find that the defendants have proven a failure
to mitigate that is relevant to the plaintiff’s ongoing injuries caused by the
accident.

PAST AND FUTURE LOSS OF
EARNING CAPACITY

[208]     The
plaintiff testified about her employment history after emigrating to Canada in
1999.

[209]     From
December 1999 until the birth of her first child in July 2000, the plaintiff
worked at a bridal shop, arranging flowers and doing other jobs at the owner’s
request. She worked six days a week for minimum wage.

[210]     In 2000,
after a six month maternity leave, the plaintiff worked for about one month
packing chickens at a factory. She worked five days a week, earning $8.50 per
hour. Her tax return for 2000 reflected total earnings of $5,600, and
Employment Insurance benefits of $3,955 while on maternity leave (her eldest
daughter was born in July 2000).

[211]     In about
March 2001, the plaintiff found work at a greenhouse through a labour
contractor. The job involved picking tomatoes and packing them into crates. She
worked nine hours a day, six days a week during the busy season, and eight hours
a day when there was less work. The rate of pay started at $7.15 per hour with
gradual 25 cent increases.

[212]     The
plaintiff’s tax return for 2001 showed earnings from her greenhouse work of
$8,642. She also received Workers’ Compensation Benefits of $3,589 for an
injury to her right ankle while working at the greenhouse, and $175 in
Employment Insurance benefits.

[213]     In 2002,
the plaintiff earned $7,781 from her work at the greenhouse.

[214]     In 2003,
the plaintiff received $13,024 in Employment Insurance benefits while on a year
of maternity leave for her second child, born February 22, 2003.

[215]     In 2004,
the plaintiff earned $10,373 through her work at the greenhouse, and some
janitorial work at a jail in Coquitlam. She also received Employment Insurance
benefits of $1,104 for an injury to her right toe that occurred at home when
she dropped something on it. The injury resolved within about a month and a
half.

[216]     In 2005,
the plaintiff earned $8,899 from the greenhouse work and the janitorial job.
She also received Employment Insurance benefits of $3,808 because she injured
her low back pulling heavy carts of tomatoes at the greenhouse. The plaintiff
did not apply for benefits for about a month after leaving her job because she
hoped to recover and return to work. However, as she found the pain did not
improve, she applied for sick benefits and also completed a security guard
course.

[217]     The
plaintiff started working for Active Security in late December 2005. Her job
entailed attending stores, construction sites, schools and factories, and
making rounds, checking doors and locks, and performing other duties as
required by the client. The work was usually in eight-hour shifts, but the
plaintiff sometimes worked up to 12 hours or an eight-hour shift supplemented
by a four-hour shift at another company. (In February 2006, she obtained work
from Agilent to supplement income from Active Security). She was paid $9.36 per
hour and worked until going on maternity leave in mid-April 2006.

[218]      At
the time of the accident, the plaintiff was still on maternity leave after the
birth of her third daughter on April 29, 2006.

a)         Past Loss of Earning
Capacity

[219]     The
plaintiff says that she had a consistent work history before the accident, and
that she returned to work after her previous two maternity leaves.  She says
that but for the accident, she would have also returned to work after her third
maternity leave.

[220]     The
plaintiff submits that her past loss in this area can be assessed as either a
past loss of earning capacity or as a loss of opportunity to earn income.
However, she says a pure mathematical calculation would not be appropriate.
Taking into account the various contingencies and her earning history before
the accident, the plaintiff submits that a global award of $50,000 would be
appropriate under this head of damage.

[221]     The
defendants say the evidence fails to prove any past loss of income. Instead,
they say, the evidence shows the following:

–     The plaintiff has a very sporadic
work history;

–     The plaintiff was unable to
continue working at the greenhouse as of April 2005 because of significant low
back problems;

–     After leaving her job at the
greenhouse, the plaintiff did not return to any type of employment until the
end of December 2005;

–     Even more sedentary security guard
work increased her pre-existing low back problem and she was “significantly
incapacitated” by the end of June 2006. (I observe that the plaintiff’s
evidence was confusing on this issue, as she initially agreed with this
statement but then said her low back pain increased as a security guard because
she was pregnant and her weight was carried at the front);

–     The plaintiff had significant
headaches that existed for years before the accident and continued afterwards;

–     There was no evidence of
opportunities available to the plaintiff to work in any capacity as at the date
of the accident or afterward. Despite saying that she wanted to return to work
in October 2006, she did not look for work after the birth of her third child
and before the accident;

–     The plaintiff was caring for three
very young children while her husband worked full-time at a glass shop
(starting in January 2007) and on call as a security guard. She had applied for
and received a full year of maternity leave benefits so had no recorded
intention of returning to work until April 2007, despite saying she wanted to
return earlier;

–     The plaintiff described herself to
doctors and therapists as a housewife and stay-at-home mom, both before and
after the accident;

–     There is no opinion evidence from
an expert as to the plaintiff’s ability to work in any capacity or any field of
endeavour; and

–     The plaintiff did work on many
occasions as a substitute security guard for her husband between November 2007
and April 2008, so either she was capable of doing so or had the same back
problems when doing so as she had before the accident.

[222]     I agree
with the defendants.

[223]     The
plaintiff’s sporadic employment history included time off for back pain, (Dr.
Sidhu wrote four letters from late April 2005 to August 2005 in support of her
taking four weeks off work each time), time off for a foot injury that occurred
at home, three maternity leaves and time off when her mother had surgery. The
plaintiff’s back pain and delivery by Caesarean section left her incapacitated
in the spring of 2006. She did not plan to return to work after the birth of
her third child in April 2006 until April 2007.

[224]     The
plaintiff said that before the accident, she and her husband intended to have a
fourth child. She planned to leave three to three-and-a-half years between
children, so the fourth child would have been born between about April and
October 2009. She would have taken maternity leave of at least one year as in
the past. Her low back pain would likely have flared up and required her to be
off work well before the delivery date. The plaintiff had experienced a serious
bout of low back pain before and after the delivery of her third child, and had
low back pain for years before then. She also had other health problems
including frequent headaches, a thyroid condition and high blood pressure.

[225]     A
plaintiff is entitled to be compensated for the loss of the value of the work
she would have performed but for the injuries sustained in the accident: Rowe
v. Bobell Express Ltd., 2005 BCCA 141.  In my view, however, there is
insufficient evidence to support the plaintiff’s claim for loss of past earning
capacity as a result of the accident. She had limited earning capacity even
before the accident.  As Dr. Vaisler stated, the plaintiff’s low back
condition before the accident would have affected her ability to function at
work and at home in any event of the accident. Taking into account the
significant negative contingencies in the period from April 2007 (the end of
maternity leave after her third child) to approximately April 2009 (the start
of maternity leave for the birth of her fourth child), I decline to make an
award for loss of past earning capacity.

b)        Loss of Future Earning
Capacity

[226]     The
plaintiff submits that she was employed for many years before the accident, and
that her time off work was mainly for maternity leaves. She was forced by her
mechanical back injury to leave her greenhouse labouring job, but she then took
a two-week course to become a security guard. I observe that given her lack of
education and inability to speak English, the plaintiff’s employment options
were limited before the accident; her only real opportunity after the accident
is as a security guard.

[227]     The
plaintiff argues that her commitment to employment was demonstrated by the fact
that she renewed her security licence after the accident. However, she says she
is unemployable because of the injuries she suffered in the accident. She seeks
$100,000 in damages for the loss of the capital asset that is her earning
capacity.

[228]     In my
view, the evidence simply does not support this claim.

[229]    
In Perren v. Lalari, 2010 BCCA 140, Garson J.A., for the Court,
set out, at para. 30, the basic principles articulated in Athey v. Leonati,
[1996] 3 S.C.R. 458 and Andrews v. Grand & Toy Alberta Ltd., [1978]
2 S.C.R. 229:

1.         A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and

2.         It is not loss of earnings but,
rather, loss of earning capacity for which compensation must be made [Andrews
at 251].

[230]     At para.
32, Garson J.A. discussed the alternative approaches to assessing this type of
loss.  She indicated that a plaintiff must always prove that there is a real
and substantial possibility of a future event leading to an income loss. If the
plaintiff discharges this burden, then she may prove the quantification of that
loss of earning capacity either on an earnings approach or a capital asset
approach.

[231]     In the
present case, I find that the plaintiff has not proven a real and substantial
possibility of a future event leading to an income loss.

[232]     The
plaintiff’s mechanical low back injury means that she cannot return to the
labouring work that she left permanently in April 2005. The only work for which
she is trained is that of a security guard. The plaintiff started work in that
capacity in late December 2005, and had had serious bouts of back pain earlier
that year. A serious flare-up of pain interfered with her security guard work
in the spring of 2006.

[233]     The
plaintiff’s primary problems are her low back and right shoulder symptoms. Her
neck injury is not sufficiently serious to prevent her from working. The
plaintiff’s own evidence revealed that work as a security guard does not
require her to engage in lifting or repetitive activities that involve raising
her right arm above her shoulder. She confirmed that work as a security guard
is not physical in nature.

[234]     As I have
already discussed, I do not accept Dr. Vaisler’s opinion on this issue, as the
plaintiff did not tell him that she had replaced her husband as a security
guard on 10 to 15 occasions between November of 2007 and April 2008. His
concern was her neck and shoulder symptoms but I do not find any link between
those injuries and an inability to work as a security guard. Indeed, the
plaintiff demonstrated that she was able to do so.

[235]     There is
no persuasive evidence that the plaintiff would not be able to return to work
as a security guard if she so chose and was able to find such work. Further,
any impediment to her working in that capacity derives from her pre-existing
lower back injury and headaches, for which the defendants have no obligation to
compensate her.

[236]     Significantly,
I think it highly doubtful that the plaintiff would have returned to work absent
the accident because she planned to have fourth child, and her husband’s income
was improving with his recovery from his addictions. The cumulative effect of
the demands of caring for four young children, the severity of her pre-existing
mechanical low back problem, the frequency of her pre-existing headaches, and
her other health problems such as high blood pressure, low mood and thyroid
condition create so many negative contingencies that I cannot find on the
evidence that she has proven a real and substantial possibility of a future
event leading to an income loss.

[237]     I decline
to make an award for loss of future earning capacity.

LOSS OF HOMEMAKING
CAPACITY

[238]    
The law is now settled that loss of homemaking capacity is compensable.
Huddart J.A. summarized it as follows in McTavish v. MacGillivray, 2000
BCCA 164, 74 B.C.L.R. (3d) 281 at para. 63:

As we have seen, it is now well
established that a plaintiff whose ability to perform housekeeping services is
diminished in part or in whole ought to be compensated for that loss. It is
equally well established that the loss of housekeeping capacity is the
plaintiff’s and not that of her family. When family members have gratuitously
done the work the plaintiff can no longer do and the tasks they perform have a
market value, that value provides a tangible indication of the loss the
plaintiff has suffered and enables the court to assign a specific economic
value in monetary terms to the loss. This does not mean the loss is that of the
family members or that they are to be compensated. Their provision of services
evidences the plaintiff’s loss of capacity and provides a basis for valuing
that loss. The loss remains the plaintiff’s loss of economic capacity.

[239]     In Kroeker
v. Jansen (1995), 4 B.C.L.R. (3d) 178, 123 D.L.R. (4th) 652 (C.A.), the
majority held that loss of housekeeping capacity was compensable as damages
distinct from non-pecuniary damages, and that where appropriate, such an award
should be made regardless of whether help was acquired.  As Gibbs J.A. put it
at p. 183 (cited to the B.C.L.R.), “… housekeeping and other spousal
services have economic value for which a claim by an injured party will lie
even where those services are replaced gratuitously from within the family.”

[240]     The
plaintiff seeks damages under this head in the amount of $10,000.  The
defendants counter that while the plaintiff’s mother and husband did some
household chores and assisted with child care after the accident, both also did
these chores before the accident.

[241]     There is
no question, based on the evidence of the plaintiff, and supported by that of
her sister and her husband, that Mrs. Gill undertook much of the plaintiff’s
homemaking work after the accident. She did the housekeeping, bathed the
children, and helped prepare food.

[242]     I find
that the household work performed by Mrs. Gill, in particular, did replace
expenses to a significant extent. Her services were over and above what would
be expected from a sister. I disagree with the defendants that Mrs. Gill’s
evidence lacks particularity as to when she attended, what chores she did, or
for how long. Instead, I found her to be a credible witness whose evidence was
reliable. She clearly undertook a significant burden of the household work
after the plaintiff’s accident.

[243]     The
plaintiff can only be compensated under this head of damages for loss of
homemaking capacity caused by her low back condition up to approximately April
2008, by which time her back had returned to its pre-accident condition.
However, her right shoulder and neck pain continue to interfere with her
homemaking activities, depending on what chores she undertakes.

[244]     There is
no evidence before me as to how the plaintiff arrived at the figure of $10,000
as a reasonable award under this head of damages. As well, some caution and
restraint are required when assessing an appropriate award, particularly where,
as here, the plaintiff had pre-existing physical limitations. I find that
$5,000 is a just and fair award for loss of homemaking capacity.

SPECIAL DAMAGES

[245]     The
plaintiff is entitled to compensation for any proven special expenses incurred
as a result for the injuries she suffered in the accident.

[246]     The
plaintiff seeks $8,003.11 as special damages in accordance with the schedule of
special damages set out in her Book of Documents – Volume III. She submits that
she reasonably incurred those expenses for various items and treatments,
according to the receipts provided, as a result of the injuries sustained in
the accident. The Court also heard from her treating practitioners as to the
treatments they recommended.

[247]     The
defendants submit that there is little medical evidence as to whether the
extent of the physiotherapy and chiropractic treatment the plaintiff undertook
was medically necessary and reasonable. They also say that the plaintiff told
her doctors and therapists on numerous occasions that neither the physiotherapy
or chiropractic treatment improved her symptoms. They add that there are no
records and no evidence about the acupressure/acumassage and about whether this
type of treatment was medically “necessary”, as opposed to merely “beneficial.”
Finally, the defendants say there was little, if any, change in the plaintiff’s
low back condition after the accident, and that they should not have to bear
any costs of treatment, other than for a short period to deal with a minor
aggravation, depending on the Court’s assessment.

[248]     I observe
that Dr. Sidhu recommended both chiropractic treatment and aquatherapy for
mobility and pain relief. The aquatherapy was to avoid impact exercises on the
plaintiff’s back. Clearly, it was reasonable, as was the gym pass for fitness
until January 2009 when the plaintiff stopped attending the gym. Dr. Sidhu also
did not tell her to cease chiropractic treatment.

[249]     Dr. Garcha
had been treating the plaintiff for her neck, shoulder and upper back, as well
as her lower back injury. It was not until April 2008 that Dr. Garcha told the
plaintiff not to return for further chiropractic treatment, as it was not
improving her condition. I have already found that the plaintiff’s low back
condition had returned to its pre-accident condition by that time. I conclude
that all the chiropractic treatment the plaintiff undertook was entirely
reasonable in the circumstances, as she was motivated to try to improve her
condition over the long-term.

[250]     Dr. Sidhu
also confirmed that he recommended and approved the acupuncture. He said the
plaintiff wanted to try it, and he “okayed it”. The plan was for her to try
acupuncture and acupressure.

[251]     The
defendants admit that the plaintiff did purchase the prescriptions set out in
the second Agreed Statement of Facts on the days indicated. However, they say
that some of the medications were for her low back condition for which (at
least past April 2008) they are not responsible. They also say the amount of Tramacet,
Celebrex and Tylenol 3 shown on the list is less than the amount the plaintiff
described having taken, so it does not accord with her evidence.

[252]     Even
though the defendants need not compensate the plaintiff for lower back symptoms
after April 2008, the same medications were also to alleviate the plaintiff’s
neck and shoulder symptoms which were, and sometimes remain, very painful. I
further note that the plaintiff was not required to pay for medication that
exceeded a certain threshold level, and that her doctor provided her with
samples of medication to avoid some expense.

[253]     I have
studied the plaintiff’s schedule of expenses, and have also considered the
defendants’ able arguments. Even accepting that her low back condition had
returned to its pre-accident state at least by April 2008, I do not find any of
those expenses unreasonable. Between the accident and April 2008, the plaintiff
reasonably incurred those expenses for her back, neck and shoulder injuries.
After April 2008 until trial, she required some chiropractic treatment, the
medications, and acupuncture and acupressure massage for her neck and shoulder,
in any case.

[254]     I am not,
however, satisfied with the figure of $1,000 for transportation, parking and
non-prescription medicine. The evidence in support of that amount is
unsatisfactory. Instead, I allow $500 for that part of the claim for special
damages.

[255]     Thus, I
award special damages in the amount of $7,503.11.

COST OF FUTURE CARE

[256]    
[256]   The test for establishing a claim for the cost of future case is
set out in Milana v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), where
McLachlin J. (as she then was) said, at p. 84:

The test for determining the appropriate award under the
heading of cost of future care, it may be inferred, is an objective one based
on medical evidence.

These authorities establish (1) that there must be a medical
justification for claims for cost of future care; and (2) that the claims must
be reasonable.

The award for cost of care should reflect what the evidence
establishes is reasonably necessary to preserve the plaintiff’s health.

[257]     Relying on
Chiu v. Chiu, 2002 BCCA 618, 8 B.C.L.R. (4th) 227, for the proposition
that it is not necessary that “specific items of cost of future care be
approved by medical experts”, the plaintiff claims cost of future care in the
amount of $30,000. She submits that an award under this head is abstract in the
sense that it is not simply a mathematical calculation as it is necessary to
consider her current medical condition, pre-existing circumstances, the expert
opinions, and her life expectancy.

[258]     Thus, the
plaintiff relies on Dr. Regan’s suggestion in his first report that a pool pass
would be helpful to her physical and mental state, as well as on the
recommendations in his second report that she take an aqua-exercise program and
perhaps further trigger point injections.

[259]     The
plaintiff also points to her own evidence that she used medications and
treatments such as a Rub A535, Tiger Balm, Tylenol 3, physiotherapy, exercise,
chiropractics and acupuncture to assist her to manage her pain.

[260]     In that
Dr. Regan opined that her prognosis is guarded more than three years after the
accident, the plaintiff submits she will experience pain for the foreseeable
future and will require treatment to manage it. Dr Vaisler also said in his
report that it is more likely than not that her shoulder symptoms will continue
to persist in spite of his treatment recommendations.

[261]     The
plaintiff also relies on the cost of a community centre gym pass at $45 per
month, $540 per year. The schedule of special damages sets out the substantial
amounts that she has incurred for other forms of treatment.

[262]     The
plaintiff says that assuming she spends an average of $2,000 per year on
various treatments (including physiotherapy, chiropractics, and acupuncture)
and medications until she is 80, the amount would total $45,890.

[263]     Although
the plaintiff acknowledges that she did have lower back symptoms before the
accident, she submits she was functional and managing her symptoms well.

[264]     The
defendants respond that the evidence fails to support a claim for cost of
future care. They say that much of the medication that the plaintiff took was
directed toward her pre-existing back injury, and they point out that she was
prescribed these same types of medications in the three months leading up to
the accident for her low back problem and ongoing headaches.

[265]     I note
that Dr. Vaisler indicated that the plaintiff would benefit from an Obus
Forme-type back support, as well as a regular physical fitness routine, such as
swimming or Pilates. He also recommended a neck and back education program,
such as that offered at the Canadian Back Institute or Karp Rehabilitation.
However, such a program would mainly treat the plaintiff’s back condition, and
the defendants need not compensate her for any ongoing low back pain. Dr. Regan
suggested weight loss, an aqua-exercise program and trigger point injections.
However, these were also mainly for her back.

[266]     Both Dr.
Vaisler and Dr. Regan opined that surgery on the plaintiff’s shoulder should be
a last resort.

[267]     It seems
to me that the evidence of Dr. Vaisler and Dr. Regan does provide some medical
justification for a small award for cost of future care to promote and maintain
the plaintiff’s mental and physical health, which will improve her neck and
shoulder symptoms. However, there is an unsatisfactory lack of specific
evidence with respect to this head of damage, and certainly none anywhere near
sufficient to support a claim of $30,000.

[268]     The best I
can do in the circumstances is to base this award on specific items that are
supported by the evidence and that relate to the plaintiff’s ongoing neck and
shoulder pain.

[269]     A regular
fitness regime would improve the plaintiff’s shoulder and neck symptoms, and
elevate her mood which, in turn, would further improve those symptoms. The
plaintiff paid $45 a month for a pass to the Sun God Sports and Orthopaedic
Physiotherapy Clinic, or $545 a year.  A reasonable length of time for a gym
pass would be about three years for a total cost of $1635.

[270]     I do not
believe the plaintiff is motivated to undertake any further chiropractic
treatment, as it did not provide more than transient pain relief. She might
take further physiotherapy, but she previously stopped going without providing
a reason. If she takes it again in the future for her neck and shoulder, it
probably will not be for long, as she will be able to learn the exercises and
do them on her own.

[271]     The
defendants are not responsible for the plaintiff’s current low back condition.
Therefore, I consider a few more sessions of physiotherapy for the plaintiff to
learn neck and shoulder exercises to be medically justified and reasonable. The
receipts show a cost of $25 as a user fee for each physiotherapy session with
Mr. Schalk. If the plaintiff went approximately four times a year for
three years as a refresher to learn exercises (by which time her neck will be
much better if she uses it normally as Dr. Vaisler recommended), the cost would
be about $300.

[272]     I do not
know how much medication the plaintiff will take in the future to address her
shoulder and neck symptoms, as opposed to her pre-existing back and headache
conditions.  Nor was I given any suggestion as to how long she would take those
medications. The evidence is simply unsatisfactory in that area. The
plaintiff’s neck and shoulder conditions are chronic, even though the neck will
likely improve with normal use. Given the unsatisfactory nature of the
evidence, I can only find it reasonable to make a modest award of $50 a month
for three years.  Thus, the total amount that is fair under this head of damage
and consistent with my view of the evidence is $1800.

[273]     Thus, the
total amount awarded for cost of future care is :

Gym pass                              $1,635

Physiotherapy                      $300

Medication                            $1,800

Total:                                      $3,735

Conclusion

[274]     In
summary, the Court makes the following awards:

Non-pecuniary damages                            $50,000

Loss of homemaking capacity                   $5,000

Special damages                                         $7,503.11

Cost of future care                                       $3,735

Total:                                                             $66,238.11

[275]     Court
order interest is awarded on the award for special damages.

COSTS

[276]    
The plaintiff seeks costs in accordance with the Tariff. Counsel may
speak to costs if they are unable to agree.

“A.
MacKenzie A.C.J.”

____________________________

Associate Chief Justice MacKenzie