IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100611

Docket: 43850

Registry:
Vernon

Between:

Sarah Fennell

Plaintiff

And

William Donald
Hiebert and Donald Larrie Hiebert

Defendants

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
The primary issue in this plaintiff’s personal injury action is whether
the plaintiff’s ongoing complaints of pain in her right back and right shoulder
are caused by a motor vehicle accident in which she was involved 12 years ago.
The quantum of the plaintiff’s damages for non‑pecuniary loss, cost of
care, and reduction of earning capacity all turn on that causation issue.

Discussion

[2]            
On January 30, 1998 the plaintiff was a few months shy of 10 years old.
She was a properly restrained passenger in her family’s passenger van. That van
was struck from behind by a pickup truck driven by the defendant William Hebert
and owned by the defendant Donald Hebert. The impact was sharp, sudden and
unexpected. The Fennell van was driven into a clockwise rotation and then into
collision with the vehicle ahead. The van then left the road and ended up in
the roadside ditch.

[3]            
The Fennell family members were all upset by the collision. No one,
however, suffered acute injuries. The family was transported to the local hospital
at Armstrong, B.C. There they were assessed by the attending physician.
According to the brief form of medical report that the hospital physician
prepared, at the hospital the plaintiff complained of a bump on her head,
likely from impact with an infant’s car seat, and of neck stiffness.

[4]            
Before the accident happened, the plaintiff was a perfectly normal
nearly 10-year-old girl. She, her three sisters and one brother, and her mother
and father lived together on a three‑acre hobby farm near Armstrong. The
plaintiff was the oldest of her siblings. The family had moved on to the farm
approximately a year before the accident. According to the plaintiff’s father, Mr. Fennell,
the farm needed some building up.

[5]            
The Fennell family did not have a philosophy of running to the family
physician for every minor problem. Accordingly, the plaintiff did not see the
family doctor on anything like a regular schedule. Moreover, the plaintiff’s
mother, Mrs. Fennell, had great faith in chiropractic care. Approximately
one week after the motor vehicle accident, Ms. Fennell took the plaintiff
in to see the family chiropractor Dr. Ritchie. Dr. Ritchie’s clinic
records indicate that the plaintiff’s complaints at that time were of pain and
stiffness in the muscles of her neck.

[6]            
In October 1998 the plaintiff did see the family physician, and at that
time complained of pain when sitting for a long time or on carrying a heavy
load. The family doctor found that she had mild scoliosis of her spine and mild
tenderness in her right trapezius muscle. She was referred to physiotherapy.
There is a record of the plaintiff attending for two physiotherapy treatments
in October 1998. The record shows only the dates of attendance, but not what
problems the physiotherapist addressed.

[7]            
The plaintiff cannot recall having suffered from neck or shoulder pain
during the two or three years that followed the accident. Her attendances for
medical and chiropractic treatment do, however, strongly suggest that she was
voicing at least intermittent complaints about symptoms in those areas during
that time.

[8]            
The plaintiff’s independent memories of pain in her neck and right
shoulder begin when she was about 13 years old. These pains were associated
with prolonged sitting in one position or lifting heavy objects. It was when
the plaintiff reached 13 that her father began to take hay from fields he had
leased in the area. He relied on the plaintiff and her younger sister to help
with haying. As the plaintiff began to do the relatively heavy work of lifting,
stacking and shifting 60 pound hay bales she began to experience significant
pain in her neck and right shoulder. The plaintiff found that her pain became
worse the longer she lifted the bales. Eventually, the plaintiff’s symptoms
became so severe that she begged off from lifting the bales, and that chore
fell to her sister.

[9]            
When she was 16 years old, the plaintiff started working part‑time
in a country feed store in Armstrong. For approximately four years the
plaintiff worked at the store part‑time during the school year and full
time in the summer. The plaintiff was able to do all of the tasks required of
her at the store, but she found that lifting and carrying sacks of feed
aggravated her neck and right shoulder pain. The more she had to lift and carry
these objects, the worse the pain.

[10]        
The plaintiff graduated from grade 12. She worked for a while as a
swamper for a brush clearing crew. That work was not physically demanding and
she completed it without difficulty or interference from her neck and right
shoulder pain.

[11]        
The plaintiff then began to attend community college. She found that
studying also aggravated her neck pain. She learned to regularly stand and
stretch or shift her position. By making these adjustments, the plaintiff was
able to manage but not eliminate her discomfort. The plaintiff was,
notwithstanding her symptoms, able to maintain good grades in her classes.

[12]        
After several years at the community college, the plaintiff enrolled as
a student at the University of British Columbia Okanagan. Her goal is to earn a
Bachelor of Science degree in earth sciences. She wants to work in the field of
agrology. Agrology tends to involve outdoor work that concentrates heavily on
empirical analysis of various ecological systems. According to Dr. Wallace,
the vocational consultant who submitted a report for this litigation, agrology
exactly fits the plaintiff’s aptitudes and interests.

[13]        
The plaintiff has taken various earth sciences courses so far at UBCO.
Save one exception, she voiced no complaint about her ability to do the work
required of her. That exception had to do with a course for which she and
several other students performed some field work. The work consisted of digging
a pit adjacent to a stream bed and placing numerous buckets of rocks in the
pit. The rocks were later excavated along with whatever else had collected
around the rocks. The plaintiff found that pain in her neck and right shoulder
prevented her from carrying the heavy buckets of rocks to and from the stream
bed. She had to rely on her classmates to help her with that task.

[14]        
The plaintiff now works part‑time as a customer service
representative at a chartered bank. She is able to do her work, but she finds
that periodically she needs to get up from her keyboard and stretch or move
around. Her work allows her to do this, and her ability to do her job is not
significantly impaired by this need.

[15]        
The plaintiff was assessed by the occupational therapist Ms. Phillips,
and Ms. Phillips wrote two reports for the court. Unfortunately, Ms. Phillips’
reports were of little value in the assessment of the case. One of the reports
was a functional capacity evaluation. Its major finding was that the
plaintiff’s ability to work with weights was limited. The court could not rely
on that finding, however, because while Ms. Phillips did say that the
plaintiff’s lifting capacity was 22 pounds, she could not say what a “normal”
or “expected” capacity might be. Without that data, the court cannot assess to
what degree the plaintiff’s capacity has been diminished. If “normal” is, say,
142 pounds, then the plaintiff’s capacity is truly minimal. But if “normal”
lifting capacity is, say, 25 pounds, then any diminishment of the plaintiff’s
capacity would be nominal. Absent those data, Ms. Phillips’ opinion has no
value.

[16]        
The second report that Ms. Phillips penned for the court comprised
her opinions concerning the cost of caring for the plaintiff in the future.
That document was rife with the excesses often seen in such reports when
written by someone who does not care to exercise good judgment or common sense.
An example of lack of judgment will serve to describe the problems with Ms. Phillips’
report. To Ms. Phillips’ certain knowledge, to a very large degree the
plaintiff simply puts up with her neck and right shoulder pain. She does not
let it stop her from doing the things that she wants to do. She rides her
horse, works at her jobs, goes to school, does her studies and generally gets
on with life. Despite these clearly demonstrated aspects of the plaintiff’s
character, the cost of care report recommended that the plaintiff be provided
with any number of adaptive aides and relief help for ordinary work and
household tasks. The vast majority of these expenses cannot be justified in
this case. The only expenses that are remotely grounded in reality relate to
the benefit the plaintiff would get from a few sessions with a personal trainer
and a half‑year membership at an exercise gym. The physiatrist Dr. Vallentyne
endorsed those items as being of some potential benefit to the plaintiff
because they would address the plaintiff’s poor posture and would increase her
muscle tone. Such improvements would likely increase the plaintiff’s tolerance
for strenuous activity.

[17]        
 Dr. Vallentyne also testified that in his opinion the plaintiff
will continue to experience activity‑caused pain in her neck and right
shoulder. He felt that the plaintiff’s susceptibility to periods of aggravation
of neck and shoulder pain will be a permanent feature of the plaintiff’s life. Dr. Vallentyne
testified that the plaintiff’s current problems were caused by the injuries she
sustained in the motor vehicle accident. To reach that opinion, Dr. Vallentyne
depended upon the relatively unbroken chain of periodic complaints of pain that
the plaintiff has made since the accident. The doctor also relied on the fact
that the plaintiff continues to make these complaints so long after the
incident itself.

[18]        
Dr. Reebye testified that in his opinion the plaintiff does not
require any ongoing treatment. He felt that the plaintiff’s complaints were as
consistent with her being injured in one or more of her various equestrian
activities or the normal vagaries of life as with injuries sustained in the
motor vehicle accident.

[19]        
The plaintiff has had several spills from her horse over the years since
the motor vehicle accident. In one of those spills she broke her wrist, and in
another she required a number of stitches in her head after hitting a tree. The
plaintiff did not, however, indicate in her evidence or to any treating
physician then or now that her neck or right shoulder were injured in any of
these events. Other than those incidents, there was no evidence at trial that
suggested that the plaintiff’s complaints stem from any physical insults other
than the motor vehicle accident.

[20]        
On the whole, the evidence at trial was sufficient to establish that it
was more likely than not that the motor vehicle accident caused the plaintiff
to suffer a mild to moderate soft‑tissue injury to her neck and right
shoulder. That injury continued to be symptomatic in the two or three years
after the accident. The symptoms were not particularly acute, as evidenced by
the fact that experiencing them has faded from the plaintiff’s memory, but they
were severe enough to prompt her to make complaints and to seek treatment from
her chiropractor and family physician. Those symptoms began to be aggravated on
a more regular basis when the plaintiff became old enough to participate in
heavier chores around the family farm. They were also regularly aggravated by
her work in the country feed store.

[21]        
Dr. Vallentyne opined that the plaintiff is one of the 7 percent or
so of soft tissue injury sufferers whose symptoms simply do not disappear with
time. Given the persistence of the plaintiff’s symptoms since the accident, I
am persuaded that Dr. Vallentyne’s opinion accurately describes the
plaintiff’s situation. She does, in fact, have a soft tissue injury which does
and will continue to cause pain in her neck and right shoulder. That pain comes
on with heavy physical activity or when the plaintiff sits hunched over a desk
for more than an hour or two.

[22]        
The plaintiff does not allow the pain to limit her ordinary activities
of daily life. It would, however, be unreasonable to expect the plaintiff to
subject herself to activities that would regularly aggravate her symptoms. Such
activities would include lifting or carrying moderate to heavy objects. This is
not as great a limitation for the plaintiff as it would be for, say, a
strapping great labouring lad in his mid‑20’s. That is because the
plaintiff is constitutionally a slight and slender young woman. The plaintiff
has more than a regular helping of grit and determination, but her build is
such that no employer would reasonably expect her to do a lumberjack’s job.
That is to say, even if the plaintiff had not been damaged by the motor vehicle
accident, common sense dictates that the plaintiff would not have pursued a
career in an occupation that required her to regularly tote heavy weights over
hill and dale.

[23]        
The plaintiff’s evidence at trial provided a guide to the degree to
which her injuries will likely interfere with her performance in the future. In
all the time since the motor vehicle accident, the plaintiff’s injuries have
limited or prevented her from doing only a few things. Those things include
solo lifting and stacking 60 pound hay bales, hoisting a heavy western saddle
onto her gelding’s back, and lifting and carrying heavy buckets of rocks for
her stream study. Other than those activities, the plaintiff has simply carried
on with her life with a degree of intermittent pain. She deals with stiffness
and soreness from prolonged sitting by standing or stretching in place. Neither
the plaintiff nor any other witness described a future situation in which the
plaintiff might reasonably find it not possible to stretch or stand.

Assessment

Non‑Pecuniary Damages

[24]        
The parties referred the court to numerous authorities in which non‑pecuniary
damages were awarded to somewhat similar plaintiffs in somewhat similar
circumstances who had suffered somewhat similar injuries. Little purpose would
be served by closely analyzing each of those cases and pointing out how they
differ from or conform to the plaintiff’s situation. Suffice it to say that the
range of damages in these authorities lies between approximately $25,000 and
approximately $60,000. Generally speaking, those authorities stand for the
proposition that the greater the frequency and severity of the complainant’s
injuries’ interference with his or her life, the higher the award for non‑pecuniary
loss.

[25]        
In the plaintiff’s case, the injuries are permanent. They may become
somewhat more tolerable if the plaintiff adheres to a structured exercise
regimen, but they will nevertheless plague the plaintiff for the rest of her
days. The injuries will bother her when she does particularly heavy work with
her arms and shoulders, or when she sits for a prolonged period. The plaintiff
will, however, be able to enjoy the vast majority of what life has to offer
her.

[26]        
In my view the proper award for non‑pecuniary damages in this case
is $45,000.

Cost of Future Care

[27]        
The plaintiff quite sensibly abandoned her claim for the majority of the
future care items Ms. Phillips recommended in her inflated cost of care
report.

[28]        
The plaintiff will benefit from sessions with a personal trainer and
from membership at an exercise gym. I do not think that it would be reasonable
to limit those sessions or the membership at a gym to only six months as Dr. Vallentyne
suggested. That is because the plaintiff’s exercise regimen should be monitored
by someone who knows what he or she is doing when it comes to the human
physique.

[29]        
Doing the best that I can with the limited data available to me, I
assess the present value of the cost of the plaintiff’s future care for
periodic sessions with a trainer and for ongoing membership at an exercise gym
at the sum of $15,000.

Reduction of Earning Capacity

[30]        
The current threshold test to qualify for damages for reduction of
earning capacity is this: the evidence must show that there is a real and
substantial possibility of a future event leading to an income loss: Perren
v. Lalari, 2010 BCCA 140.

[31]        
The plaintiff is young and has not actually commenced a career yet. She
has, however, clearly decided upon a career path. She wants to work in
agrology. According to the evidence adduced at trial, an agrologist may work in
the field, or may work in a laboratory, or she may spend a good deal of time at
a desk managing information and writing reports. An agrologist’s work may also
involve a combination of those activities.

[32]        
The evidence established that the field work that agrology students, at
least, do includes moving heavy buckets. Ms. Phillips’ report also
described some of the activities that qualified agrologists do, including field
work. Those activites do, according to that report, include some heavier tasks
such as moving pumps and digging equipment.

[33]        
The plaintiff’s evidence established that the plaintiff does have
difficulty carrying and lifting heavy weights. Due to her injuries, there is a
real and substantial possibility that in the future the plaintiff will be
unable or have a reduced ability to carry out all of the field duties expected
of her as an agrologist. That reduction could impact her earnings. In my
opinion, that evidence is sufficient to satisfy the threshold test for
compensation for reduction of earning capacity.

[34]        
The question then becomes how large an award ought to be made? The
plaintiff seeks between $50,000 and $60,000 while the defendant argues that if
an award is made it should much more modest.

[35]        
In my view, the fact that the plaintiff has been able to carry on with
the vast majority of the ordinary activities of daily and work life argues
against a large award here. The interference that her injuries will present to
her as she moves through her career as an agrologist, while real, is likely to
be relatively infrequent.

[36]        
An award of $25,000 would, in my opinion, adequately compensate the
plaintiff for the reduction of her earning capacity.

Conclusion

[37]        
The plaintiff is entitled to judgment under the following heads of loss:

 Non‑pecuniary
damages              $45,000

 Cost
of future care                      $15,000

 Reduction
of earning capacity      $25,000

[38]        
The parties may speak to costs in the event that they are not able to
come to an agreement about that issue.

“P.J. Rogers J.”