IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100628

Docket: M062921

Registry:
Vancouver

Between:

Angela Beaudry

Plaintiff

And

Andrew Wayne
Kishigweb

Defendant

Before:
The Honourable Mr. Justice Rice

Reasons for Judgment

[1]            
The plaintiff seeks damages for injuries sustained in a motor vehicle
accident on August 11, 2005, near the intersection of Brunette Avenue and Braid
Street in New Westminster.  The accident occurred when the defendant, driving a
Dodge ½ ton pick-up truck collided with the rear of the plaintiff’s 1991 Dodge
Spirit.  The defendant admits that he had been driving at 50 km/h but swears
that he slowed down substantially before the collision.  It was not a severe
impact.

[2]            
After the collision, the plaintiff and the other driver drove to a
nearby gas station where the defendant says he thought the plaintiff looked
distraught.  The front bumper of his truck was damaged but he did not have it
repaired.  He saw the damage to the rear of the plaintiff’s vehicle and says
that he noticed a tail light was broken but not much more.  He says they spent
about 15 minutes at the gas station and then left.  The plaintiff testified
that she stopped to speak to her mother, whom she happened to see on Agnes
Street in New Westminster.  She then carried on to a previously scheduled
appointment in Surrey.  After that appointment, the plaintiff returned to New
Westminster to pick up her daughters, and then to pick up her cousin near the Lougheed
Mall.  She asked the cousin when they met to take over and drive the rest of
the way home.

INJURIES

[3]            
The plaintiff claims that the collision caused injuries to her head,
neck, upper back, chest, shoulders, arms, lower back and tail bone, abdomen,
pelvis, right ankle, knee and foot.  After the accident, and as a result of it,
according to the plaintiff, she began to suffer and continues to suffer chronic
pain.

[4]            
The defendant takes little issue with regard to the plaintiff’s claims
of injury except for the long-term suffering and inability to work due to
injuries allegedly caused by the accident.  The defendant submits that the
plaintiff has failed to establish a complete causal nexus between the accident
and her on-going pain and suffering.  The defendant submits that this on-going
pain and suffering of which the defendant complains has origin or origins farther
back in past, and must be considered in the context of her pre-morbid history
and various pre-existing ailments.

[5]            
The defendant submits that the evidence does not support limitation to
the plaintiff’s capacity to the extent that the plaintiff claims.  Rather, it establishes
that she has the capacity and will have the capacity to return to pre-accident
employment, and that, meanwhile, she remains capable as well of tending to housekeeping
and child care responsibilities.  The defendant suggests that the plaintiff has
chosen not to work in the workforce because her skills are at the minimum wage level,
close to the cost of child care, and that being so, she would prefer to stay
home and care for her children.  The defendant says that he should not be held responsible
for losses due to the plaintiff’s own choices and to her failure to mitigate
her losses.

[6]            
The defendant’s expert, Dr. Turnbull, a surgeon, assessed the plaintiff
on April 29, 2008, two years and 8 months after the accident.  On
cross-examination, he stood by his opinion that the plaintiff did not exhibit chronic
pain when he saw her because he noted that she moved quite freely during his
examination of her, which is not consistent with someone who has chronic pain. 
At page 5 of his report, he noted that the plaintiff showed no evidence of
being in pain when moving around.  He had the impression that she was able to
get on and off the examining table with agility.  He could find no evidence of
any physical limitations apart from the fact that the plaintiff was able to
reach only to her knees when she bent forward.  (Exhibit 18(b) medical/legal
report for Dr. Turnbull of June 25, 2008).

[7]            
Dr. Turnbull’s testified to his opinion that the plaintiff’s chronic
pain developed initially from the soft-tissue injury that she suffered as a
result of the accident.  He allowed that his opinion was based on the plaintiff’s
subjective report, and he noted also that she had suffered a pre-existing
history of back pain.  He also referred to a lipoma discovered at the base of her
spine.  It presented as a mass of tissue that had the effect of distorting her
nerves that ran to her right leg, as a result of which, she suffered some pain
and a cramping sensation, along with a reduced reflex.

[8]            
The plaintiff’s family physician at the time of the accident, Dr.
Maunsell did not testify, and neither was any report of his tendered in
evidence.  Dr. Collette, the plaintiff’s present family physician, prepared an
opinion dated February 9, 2010, and he testified.  His evidence is limited by
his having not begun to treat the plaintiff until July 2008, almost three years
post-accident.

[9]            
Dr. Collette testified that the plaintiff said to him that her torso rotated
to the right along with her neck at the point of impact, and that this
rotational force had some added effect.  It is very difficult to draw any
conclusion as to the effect of that circumstance in the evidence of the speed
of the vehicles at the time of impact.  It is rather uncertain.

[10]        
Dr. Collette noted muscle tension, headaches, aching upper back and neck
muscles with repetitive use, some chest wall discomfort, with some post-traumatic
symptoms but no post-traumatic stress syndrome.  He reported her lower back as 90%
better though it would get stiff at times, and she suffered from sore knees at various
times.  At page 7 of his report, Dr. Collette notes that from a physical
examination of the right knee, it appeared to be normal.  He describes
“post-traumatic pain inducing frustration, depression and anxiety as a result
of her significant life-style changes as a result of the injuries suffered due
to the accident”.

[11]        
At page 4 of his report, Dr. Collette notes that treatment has consisted
of physiotherapy, chiropractic manipulation, acupuncture/massage and
analgesics/narcotics/Gabapentin.  Dr. Collette noted earlier that the plaintiff
began taking morphine, Gabapentin and homeopathic remedies when the lipoma was
discovered that she had on her right spine about six months after the
accident.  In any event, Dr. Collette goes on to say “the medications have
decreased to almost nothing”.

[12]        
Injuries to the plaintiff’s neck, upper back and lower back are
soft-tissue in nature.  There is no objective report before the court, in the
defendant’s opinion, to explain the symptoms in the absence of an objective
injury.  The defendant warns against acceptance of the plaintiff’s subjective
reports of symptoms because, for a variety of reasons, the plaintiff is not a
reliable historian.

[13]        
Dr. Sehon, the plaintiff’s expert psychiatrist, postulated that the
plaintiff’s history of being sexually abused could explain why she was not
forthcoming about aspects of her history.  She did not volunteer certain
information to the physician who assessed her.  She certainly had her troubles
between the ages of 12 and 21.  She was diagnosed with major depressive
disorder as well as cocaine dependency.  Dr. Sehon testified that children and
teenagers who develop depression are prone to developing more malignant depression
as adults.  The psychiatric report of Dr. Ryan dated October 1999 indicated
that the plaintiff had been admitted as an in-patient and prescribed an antidepressant,
Effexor.

[14]        
Dr. Sehon prepared a medical/legal opinion dated May 8, 2008.  In his
opinion, the accident was not the cause of any new psychiatric or psychological
disturbance, nor did it exacerbate her pre-existing emotional problems.  Under
cross-examination, Dr. Sehon clearly explained the basis for his opinion and
confirmed that at the time he saw the plaintiff she was not depressed and he
concluded she has had a long-standing dysthymic disorder then in remission,
meaning that there can be no recovery but there can be periods of remission. 
She found the plaintiff was not suffering from depression or emotional upset
that was in any way disabling.

[15]        
The plaintiff’s history as recounted by her indicated a number of
unfortunate life events as she was growing up.  Dr. Sehon thought that the
plaintiff tended to minimize her significant pre-accident medical history.  On
a review of all of the evidence, it is apparent that the plaintiff had episodic
pain from a 1993 motor vehicle accident up to the collision.  She had a history
of cramping pain in her legs of long-standing nature.  She went to her family
physician on January 18, 2005 (7 months pre-accident) with complaints of aching
pain in her right leg.  The plaintiff testified that she had looked up the
expression “restless leg syndrome” and wanted to see if anything could be done
about the pain.

[16]        
The plaintiff bore a daughter in 2000 and then another in 2002 out of a
relationship with a person named Joe Delgiglio.  There are indications of abuse
during that liaison.

[17]        
The plaintiff received treatment at Lansdowne Massage Therapy Clinic
from 2000 to 2003.  She testified that she sought massage therapy during her
pregnancies.

[18]        
At the office of her chiropractor she filled out a questionnaire
December 27, 2005.  Put to her in cross-examination, she confirmed what she had
stated in the questionnaire. In the questionnaire she described the stresses
that were affecting her at the time, including “tense driving, courts, dealing
with an ex, hard time dealing with kids”.  She confirmed that she had not kept
up with an exercise program from before.  Her answer to the question was
“keeping up with my kids is enough exercise for now”.  She claimed to have no
money or time to participate in any class to enhance her healing capacity, but
she did start with a group the following week.  Things that she wanted to
discuss included, “what is my spine’s current position, explain what progress
has been made, what to expect/look forward to, why am I such a basket case,
fibromyalgia.”

[19]        
As regards to her chronic pain, Ms. Beaudry insists that she continues
to experience pain and discomfort.  She still has neck, back and shoulder pain,
headaches, dizziness and pain in her buttocks; she has difficulty sitting for
long periods of time.  This has affected, she says, her day-to-day activities
and quality of life.  Since the accident, as she puts it, she has had an
anxiety disorder.

[20]        
Dr. Herschler, a specialist in physical medicine and rehabilitation
wrote a medical/legal opinion dated June 7, 2006:

Due to her
symptoms, Angela was not able to return to her former vocation … The pains in
her neck and back combined with the numbness and dizziness make it impossible
for her to work.  This is the reason for her on-going disability.

…

In my opinion that she is not yet
capable of returning to work due to her injuries.  These injuries were caused
by the motor vehicle accident on August 11, 2005.

[21]        
Dr. Herschler reconfirmed that report in a further consultation report
January 10, 2007.

[22]        
Dr. Tarazi reported December 17, 2009, that the motor vehicle accident
was the cause of multiple musculoskeletal injuries, and that right knee pain
was on-going because of patellofemoral syndrome. He wrote:

The motor vehicle accident of
August 11, 2005, has caused a neck soft-tissue strain.  This has resulted in
pain that has been radiating to the shoulders and arms. …

… Her neck pain has been
present for four years now.  In my opinion, this pain is now chronic and will
likely remain on a permanent basis.  This will continue to affect her ability
to work as well as carry out her home housework and recreational activities. 
She will be limited to sedentary types of activities.

The motor vehicle accident of
August 11, 2005 has caused a lower back soft tissue strain; this has resulted
in pain which has become chronic in nature as it has only improved by about
twenty-five percent since the accident.  …

… I suspect that a large part
of her present disability is related to the depression and chronic pain.

[23]        
Dr. Collette agreed in his report of February 9, 2010 with the earlier
report by  Dr. Turnbull, also defence expert, and Dr. Collette stated in a
report of June 25, 2008, that:

My diagnosis is that Ms. Beaudry
has developed chronic pain, initially as a result to soft tissue injury that
occurred in the MVA of August 11, 2005

CAUSATION

[24]        
The plaintiff seeks to prove that due to the accident, her life has been
significantly affected for the worse.  The progress of her recovery has been
slow.  She had had a low grade depression before the accident which was not
disabling.  Mr. Fahey for the plaintiff characterizes the facts as a thin skull
situation, that is, one where the injuries suffered after the accident were not
symptomatic at the time of the accident.

DAMAGES

[25]        
The difficulty of assessing damages for soft-tissue injuries where the
plaintiff has a complicated psychological and behavioural background is
described in Rod v. Greco, 2003 BCSC 935, at para. 35:

As to physical injuries, because
of the mechanics of the motor vehicle accident [the plaintiff’s vehicle was
rear-ended] some must have been sustained by the plaintiff.  However, the
complex psychological and behavioural history both pre and post accident
outlined above made it difficult to identify them with any precision.

[26]        
The defendant argues that whether or not the plaintiff was a vulnerable
individual, she cannot be put back to a better position than she would have
been had the accident not occurred.

[27]        
The plaintiff argues for an award for non-pecuniary loss of $120,000.  Mr.
Fahey cites Zhang v. Law, 2009 BCSC 991, where the plaintiff was awarded
$125,000 in non-pecuniary damages.  The accident in that case caused, if
anything, a worse array of injuries including a mild traumatic brain injury. 
When the plaintiff in that case tried to return to work four weeks after the
accident, she noticed difficulty with her memory and with fatigue,
necessitating several breaks per day.  This in turn caused her to lose
motivation and be anxious.

[28]        
Mr. Fahey submitted for comparison the case of Eccleston v. Dresen,
2009 BCSC 332, in which a plaintiff aged 34 was injured when her motor
vehicle was struck from behind.  Six years after the accident the plaintiff
continued to suffer from depression and chronic pain.  The award was $112,000.

[29]        
Similar cases where chronic pain had developed produced awards also of
$110,000. See: Maillet v. Rosenau, 2006 BCSC 10; and Kosugi v.
Krueger (Litigation Guardian of), 2007 BCSC 278.

[30]        
Responding to this, the defendant accepts that the plaintiff was a vulnerable
individual, but that she should not be put in a position better than she would
have had the accident not occurred.  The defendants submits that the range for
non-pecuniary damages should be $35,000 to $55,000 with a deduction of up to
25% to take into account the fact that her pre-existing lumbar spine condition
(diagnosed after the accident) would have continued to cause her pain in her
lower back and right leg in any event of the accident, and that her
vulnerability to depression likely would have disrupted her life and her ability
to remain gainfully employed in any event.

[31]        
The defendant submits a number of cases which it argued are more in line
with the facts of this case, and amount to far less in terms of non-pecuniary
damages.  The cases are:

– M.N. v. Anderton, [1994] B.C.J. No. 2657 (S.C.): Non-pecuniary
damages: $13,500 ($18,337 in 2010 dollars).

– Masoodi v. Dennis, 2000 BCSC 825: Non-pecuniary
damages: $30,000 ($36,825 in 2010 dollars).

– Markstrom v. Samson, [1995] B.C.J. No. 1835: Non-pecuniary
damages: $35,000 ($46,400 in 2010 dollars).

– B.M.R. v. Carter, 2000 BCSC 660: Non-pecuniary
damages: $35,000 ($42,962 in 2010 dollars).

– Runghen v. Elkhalil, 2009 BCSC 467: Non-pecuniary
damages: $40,000.

– Tayler v. Loney, 2009 BCSC 742: Non-pecuniary
damages: $50,000 (reduced by 15% for failure to mitigate).

– B.M.M v. M.L.V., 2009 BCSC 1174: Non-pecuniary
damages: $55,000 (reduced by 5% due to pre-existing back condition).

– Chan v. Chen, 2003 BCSC
1554: Non-pecuniary damages: $55,000 ($62,203 in 2010 dollars)

[32]        
They range from $13,500 to $55,000 (approximately $18,000 to $62,000 in
2010 currency).

[33]        
The defendant submits that the very highest that the court should award
is $75,000 (to be reduced by 10% for pre-existing condition).  This is based on
consideration of Gohringer v. Hernandez-Lazo, 2009 BCSC 420.  In that
case, it was found by the courts that the injuries continued to affect the
plaintiff in a number of other ways and would continue to affect her for a
foreseeable time.  Injuries were depression, insomnia and anxiety disorder.

[34]        
With the virtual admission by the defendants that the plaintiff now
suffers from chronic pain, I must first of all decide what the condition of the
plaintiff was just before the accident.  Clearly she was not in the best of
shape and that must be taken into account.  She was susceptible to pain and
worse, depression, some of which could be said was the result of lifestyle
mistakes made in the past.  Having recovered from most of those, I agree that
it is not fair to reduce what she would otherwise receive simply on the basis
of a greater susceptibility because of her past.  On the other hand, to the
extent that those past experiences would have revisited her earlier in life
than is normal, account must be taken of that too.

[35]        
Considering the whole of the evidence, I find that, indeed, the
plaintiff suffers chronic pain as a result of the collision.  I award her
$85,000 in non-pecuniary damages.

PAST LOSS OF INCOME

[36]        
The plaintiff was employed at the time of her accident as a door-to-door
distributor seeking donations for the Foster Parents Plan.  According to Mr. Fahey,
she was earning commissions averaging $500.00 per week with a guaranteed
minimum wage for 35 hours per week.  She had been with the same company for
four months prior to the accident.  Her employer described her as an excellent
employee and expected before too long to be earning $4,000 per month.  Subject
to her negative contingencies, the plaintiff submits that $3,000 per month is
an appropriate sum and he calculates her lost wages from the date of the
accident to April 12, 2010, at 56 months, multiplied by $3,000 the sum of which
is $168,000. The plaintiff would allow a deduction of 12 months for time lost
due to pregnancy and post-childbirth, for a total of $132,000.

[37]        
Counsel for the defendant pointed out the lack of effort over the years
of the plaintiff to maintain a steady job, with the implication being that she
was not likely to carry on full employment then or presently.  She had worked
at a pizza place in high school, Dairy Queen, B.C. Buildings Corporation doing odd
jobs such as landscaping, seasonal work for approximately three years with her
mother selling fragrances at department stores, she worked in a law firm for
three months but was let go due to lack of experience.  She had worked at a
bottling depot for about three months after her children were apprehended in
2001.  She helped her mother deliver pamphlets for her mother’s water bottle
business.  Her main source of income between 1993 and 2005, however, was social
assistance and child support from the father of the two daughters.

[38]        
Prior to the accident, the plaintiff testified that she had contacted
the Ministry to inquire about opportunities to train for potential jobs.  She
was advised to seek further education or training by obtaining a student loan. 
In November 2004 she began taking a computer skills training course, which she
completed in February 2005.

[39]        
Between the end of April 2005 and the accident, the plaintiff had earned
$7,282.00.  The defendant submits that the court ought to accept a two-year
period of time as a reasonable length of time for the plaintiff to be off work
due to her injuries, but she could have gone back to work not after two years,
but three years, but in my opinion, during the balance of 20 months before the
trial, she would have likely been only able to carry out reduced (part-time)
work time due to pain and immobility as a result of the accident.  However, in
any event, I doubt that she would have remained in that employment.  There is a
significant probability she would have been unemployed for some time during
that period for reasons other than those that would be attributable to the
accident.

[40]        
I find that, taking the contingency of periods of unemployment into
account, the plaintiff’s income would have averaged approximately $1,500 per
month. Compensating her for 36 months at this full amount, and 20 months at
half the amount in recognition of a partial return to work, the total is
$69,000. Subtracting 12 months of full time salary for the plaintiff’s absences
from work, due to childbirth, the total is $51,000.

[41]        
Taking all of the above into account, I would thus award $51,000 for
past loss of income.

FUTURE LOSS OF EARNING CAPACITY

[42]        
The plaintiff claims to have limitations that disable her from
performing certain occupations so that she is not competitively employable.  Citing
Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.), it is submitted
that Ms. Beaudry:

a)    
is less capable overall from
earning income from other types of employment;

b)    
is less marketable or attractive
as an employee to potential employers;

c)    
has lost the ability to take
advantage of all job opportunities, which might otherwise have been open to her
had she not been injured; and

d)     is less valuable to herself as a person capable of
earning income in a competitive labour market.

[43]         
Considering also Pallos v. Insurance Corp. of British Columbia
(1995), 100 B.C.L.R. (2d) 260 (C.A.), the plaintiff submits that she is
planning to return to school fulltime in 2011 for vocational training for which
she seeks $24,000 from the end of trial to the beginning of that retraining
period.  April 23, 2010 – January 2011 = 8 months. 8 months x $3,000 per month
= $24,000.

[44]        
In addition, the plaintiff seeks $300,000 for loss of earning capacity
as a capital asset relating to the period after the retraining.  The total,
then, is $324,000.

[45]        
The plaintiff submitted in evidence the report of Dr. Dominic Shew,
occupational therapist, who performed a functional capacity evaluation.  He
concluded that the plaintiff is capable of part-time and up to full-time hours
in limited or sedentary light or modified medium strength categories.  He
suggested a number of jobs which would not likely suit her due to her physical limitations,
but he was not asked to estimate the number of jobs that would be available to
her.  I am not satisfied that her injuries present a very strong obstacle to
her finding employment that she can manage.

[46]        
The plaintiff does not have a track record of employment in the
preceding years.  If there are difficulties in performing some jobs, previous
lower back and right leg pain from before the accident may as likely as
anything be the cause.  For any such future income, there are negative
contingencies, including her pre-accident history of short-term employment
interspersed with long periods of unemployment.  I do not on the facts foresee
a strong likelihood that she will be out of work if she puts her mind to
obtaining and keeping a job.

[47]        
Dr. Levin testified that he could see no reason from a psychiatric
perspective for the plaintiff not to return to work, including the work she was
doing before the accident.  His opinion was that she seemed unmotivated to
return to work, which is not related to any psychiatric condition.  On
cross-examination, Ms. Beaudry indicated she was not interested in returning to
low paying jobs given the cost of childcare and she would rather be with her
children.  The defendant submits that there is no basis for the plaintiff’s
claim in this category.

[48]        
I am inclined to agree with the defendant that, while there are
limitations due to the chronic pain, the plaintiff is or will soon be able to
work full-time.  I am not convinced that there is a shortage of positions in
various kinds of employment open to her.  I award her $50,000 to reflect the
slight amount that I estimate it will cost her in terms of ability to work
fulltime at the pace that she did before the accident.

[49]        
I am reminded in any event that the assessment and loss under this head
is simply that, an assessment.  It is a well-established principle that the
trier of fact must step back from the mathematical calculations and consider
the reasonableness of the figure awarded as loss of earning capacity. Friesen
v. Pretorius Estate (1997), 37 B.C.L.R. (3d) 255 (C.A.).

HOUSEKEEPING IN-TRUST AWARD AND FUTURE COST OF CARE

[50]        
Ms. Beaudry testified that her ex-partner’s cousin, Clorinda, stayed
with her for about a week following the accident and provided assistance. 
After that, Clorinda provided assistance with grocery shopping and work around
the home.

[51]        
Shelley Trellert, the plaintiff’s mother, testified that she helped the
plaintiff with the care of her children and in her home.

[52]        
Allan Irvine, the plaintiff’s husband, did not know the plaintiff at the
time of the accident and did not meet her until 2007.  They were married in
2008 and their child was born in 2009.  Mr. Irvine testified about the amount
of housework he does and how his employment provides him with necessary
flexibility to be available in the home to assist with the child care and other
home duties.  The defendant submits that the plaintiff required assistance for
her children at the home various times before the accident and she sought
assistance from the Ministry for Children and Families, and from her own
family.  The soft-tissue injuries suffered by the plaintiff do not, says the
defendant, require the level of care beyond that expected of members of
families, to warrant a separate award for interest claimed.

[53]        
The plaintiff submits that her limitations will require help with
domestic services at an average cost of $22.88 per hour for a total cost of
$1,190.00 annually.  The present day value of this sum over the plaintiff’s
lifetime, her counsel calculates at $27,712.00.

[54]        
The evidence before me, I agree, was not enough for me to conclude that
the plaintiff has greater needs for housekeeping assistance than was the case
before the accident.  The plaintiff was married in 2008 and she and her new
husband had a child born in 2009.  She is entitled to make that choice, but to
the extent that it increases her work, I don’t believe that she is entitled to
payment for that extra work.  The evidence as presented does not meet a
reasonable standard of entitlement and I make no award on that account.

[55]        
The functional capacity evaluation by Dr. Shew confirms that Ms. Beaudry
is capable of limited, light and modified medium strength demands physically. 
The only evidence that she cannot do parts of her household work consists of
her subjective reports of pain.  The fact is that despite her pain, Ms. Beaudry
does carry out household chores.  The defendant is compensating the plaintiff
for her pain in the category of non-pecuniary loss and the facts apart from
that do not make out a claim for future care in my opinion.

SPECIAL DAMAGES

[56]        
The plaintiff submits that she should be compensated for the following
special damages:

[57]        
The defendant submits that some of the pain-relief medication claimed as
special damages were prescribed for Ms. Beaudry after the lipoma in her lower
spine was discovered approximately six months post-MVA. They argue that Ms.
Beaudry has not established that those medications are reasonable expenses
related to the soft tissue injuries she sustained in the accident.

[58]        
I disagree. There is medical evidence that Ms. Beaudry had chronic pain
during the time those medications were purchased that was caused by the MVA. I
do not accept that, but for the lipoma, Ms. Beaudry would not have needed those
pain medications or would have only required a reduced number of them. Thus,
the plaintiff will have the amount she has claimed for prescription medication,
with no reduction.

[59]        
The only other special expense with which the defendant takes issue is
the cost of the chiropractic treatment by Dr. Lepp. The defendant argues that
the plaintiff did not seek this treatment on the recommendation of a physician
(although they acknowledge that Dr. Collette testified that if Ms. Beaudry
obtains relief from the treatment, then he would recommend that she continue
it). The defendant further submits that it is more likely than not that the
reason the plaintiff continues to receive this treatment is because of her
long-standing lower back complaints which predated the MVA and have as their
cause an underlying, non-MVA related condition. In the alternative, the
defendant submits that I should apply a deduction to take into account
non-Accident related factors driving the plaintiff to seek treatment.

[60]        
The test for recovery as stated in Linda Rainaldi, ed., Remedies in
Tort, looseleaf, (Toronto: Thomson Reuters Canada, 2009), at S. 51 is as
follows:

Pre-trial expense will be recoverable as special damages if
the decision to incur the expense was reasonable. If the plaintiff honestly and
reasonably believes that an expenditure will improve his mental or physical
health, compensation will be allowed for the expense. It is irrelevant if the
expenditure was not, in fact, effective in improving the plaintiff’s health.

[61]        
There is a case holding to this same effect in this province. It is Brito
(Guardian ad litem of) v. Woolley, 2001 BCSC 1178, aff’d 2003 BCCA 397,
where Sinclair-Prowse J. (as she then was) wrote at para. 385:

With respect to the chiropractic
treatments, the Plaintiffs incurred this expense on the basis that it would assist
Elliott in keeping his back straight thereby helping him to keep his chest open
and to reduce the risk of scoliosis. Although, as I set out subsequently in
this Judgment, the evidence fell short of proving that all these treatments
were actually medically beneficial, at the time this expense was incurred it
was reasonable to expect that they were going to be beneficial. For these
reasons this expense is reasonable.

[62]        
I find that it was reasonable in the case at bar for the plaintiff to
have sought chiropractic treatment on her own from Dr. Lepp, even though she
was not referred to him by a physician. The plaintiff shall have the cost of
that treatment in her award for special damages, with no deduction, for the
same reasons as with respect to the medication expenses.

[63]        
I therefore award the plaintiff $10,750.11 in special damages.

CONCLUSION

[64]        
The following is a summary of my awards under the various heads:

“The Honourable Mr.
Justice Rice”