IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101110

Docket: 14931

Registry:
Smithers

Between:

Kelsey Chamberlin,
an Infant by Her
Litigation Guardian, Thomas Chamberlin

Plaintiffs

And

Beverly Lois Profeit

Defendant

Before:
The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

A.       NATURE OF THE PROCEEDINGS

[1]            
On March 14, 2005, the plaintiff, Kelsey Chamberlin was a front seat
passenger in her father’s Honda Civic. They were proceeding north on Ospica
Drive, in the City of Prince George, when their vehicle collided with a vehicle
owned and operated by the defendant, Beverly Lois Profeit (the “car accident”).
Liability of the defendant is admitted by her counsel.

[2]            
The plaintiff claims that as a result of this accident she has suffered
injuries and claims damages from the defendant for:

a)       special damages;

b)       general damages;

c)       interest pursuant to the Court
Order Interest Act, R.S.B.C. 1996, c. 79;

d)       costs; and

e)       such further and other relief as this Court
may seem just.

B.       EVIDENCE ADDUCED AT TRIAL AND FINDINGS OF FACT

[3]            
From the evidence adduced at trial, I find as a fact that the defendant
caused the car accident when she drove across Ospica Drive in front of the
plaintiff’s father’s vehicle. The plaintiff’s father described the car accident
as a T-bone, but the photos introduced into evidence indicate that the damage
caused to both vehicles as a result of the collision was minimal. It is
noteworthy, however, that there is no engineering evidence about body mechanics
or the force of the impact.

[4]            
Further, I find that the plaintiff, who was 14 years old at the time of
the accident, suffered a whiplash injury, seatbelt bruises, lacerations and a
bump on her head. In this regard, I accept the evidence of the plaintiff and
her father that the day after the accident, the plaintiff was in such pain in
her neck and shoulder area, as a result of the injuries suffered in the
accident, that she was taken to Emergency at the Bulkley Valley District
Hospital. I also find as a fact that the plaintiff still suffers from pain from
the trapezius muscle to the neck area; although, I am not satisfied that the
plaintiff has proved, on a balance of probabilities, that this chronic pain was
caused as result of the car accident.

[5]            
During the last two years, the plaintiff attended St. Michaels
University School, a private school in Victoria, where she completed her Grades
11 and 12 with almost straight A’s.

i.        Activities of the Plaintiff before the Car Accident

[6]            
I accept the evidence of the plaintiff and her father that the plaintiff
was involved in skiing (cross-country and downhill), figure skating,
snowboarding, gymnastics, dancing and tobogganing prior to the car accident.

[7]            
I find as a fact that the plaintiff had suffered no injuries to her neck
or shoulder area prior to the car accident.

ii.       Activities of the Plaintiff after the Car Accident

[8]            
I find that, despite the injuries suffered by the plaintiff during the car
accident, she continued to be active after the car accident. From the evidence
adduced at the trial, it is clear that she continued with her dancing; she
continued with her tobogganing; she continued with her snowboarding; she
continued with her volleyball; and she continued with her rock and wall
climbing.

[9]            
Two weeks after the car accident, on March 26, 2005, the plaintiff was
involved in an incident where, while tobogganing, her toboggan ran into the
side of a truck. From the evidence, I find as a fact that this collision
aggravated the injury that the plaintiff suffered in the accident of March 14,
2005. In coming to this conclusion I have placed some reliance on the admitting
form that was prepared when the plaintiff attended the Bulkley Valley District
Hospital on April 5, 2005.

[10]        
Evidence that the plaintiff continued to play volleyball shortly after
the car accident is supported by her visit to the Bulkley Valley District Hospital
on September 30, 2005 for a wrist injury suffered while playing volleyball. The
plaintiff made another visit to the same hospital on April 28, 2005, for a sore
wrist incurred while playing volleyball. The plaintiff testified that on both
occasions she was playing volleyball with friends.

[11]        
In her testimony the plaintiff admitted that in March to June of 2005,
she continued dancing even though her injuries limited her movements. The
plaintiff admitted that she went to ballet school in Parksville shortly after
the accident and, because of her injuries, she could not put her arms above her
head and was sore after dancing. She further testified that she tried to stay
active despite the injuries suffered by her in the car accident.

[12]        
The plaintiff testified that although she still did snowboarding after
the accident, she was afraid of falling because falling caused her considerable
discomfort.

[13]        
The plaintiff testified that in 2007 she worked at Extra Foods in
Smithers. This job involved lifting boxes and mopping the floor. She testified
that this activity made her sore.

(a)      The Moose Collision Incident

[14]        
Evidence was led that in 2008, the plaintiff was the passenger in a
vehicle driven by a close family friend when the vehicle collided with a moose.
From the evidence adduced at this trial, I find that this accident caused an
aggravation of the plaintiff’s neck and shoulder injuries suffered in the car
accident.

(b)      The Plaintiff’s Participation
in the Annual Schuss Boomer Downhill Race

[15]        
Evidence was led by the defence that despite her injuries, the plaintiff
participated in the annual “Schuss Boomer Downhill race” on the ski slopes in
Smithers. This a fun race held in the spring of each year to celebrate the end
of the winter. The participants are asked to dress up in costumes and then
asked before their downhill run to guess what their times for completing the
course would be. Prizes are awarded to the participant whose guess is closest
to the actual time it takes for them to complete the run.

[16]        
There is evidence that on April 8, 2006, the plaintiff completed the
course in 2:14.45, which was a speed of 56 km/hr. In 2010, the plaintiff
guessed that she would complete the course in 2:13:36; her actual race time was
2:14:31.

(c)      Physical Activities of
the Plaintiff while at St. Michaels University School

[17]        
There is evidence that, notwithstanding her injuries, the plaintiff was
required to take part in certain physical activities while attending school in
Victoria.

[18]        
In September 2008, while in Grade 11, the plaintiff was required to participate
in a four-day hiking trip at Strathcona Park. This necessitated her hiking with
a backpack. The plaintiff testified this was very difficult for her. She
testified that at the end of the first day of that trip she was in real pain
and she had to get the help of some of her classmates to carry some of the
stuff in her backpack. She testified that throughout that trip she had to work
through pain. She testified that she was frustrated because she could not enjoy
the trip as much as her classmates.

[19]        
The plaintiff experienced similar pain and discomfort while on two other
St. Michaels University School trips: one in Manning Park and another in
Penticton. I might add that the plaintiff engaged in rock climbing while on the
Penticton school trip.

[20]        
The last physical activity to which I would refer is evidence of the
plaintiff’s school trip to Kenya, Africa in March 2009. On this trip, the
students, including the plaintiff, helped build a school in rural Kenya. This
involved mixing concrete, using a pickaxe and laying bricks. I am satisfied
with the plaintiff’s evidence that she endured severe pain trying to do some of
these tasks. Her evidence in this regard was corroborated in full by her
teacher who accompanied her on that trip. I found that teacher, Mr. Cook, to be
an unbiased, independent witness. I accept his evidence in total.

C.       INJURIES SUFFERED BY THE PLAINTIFF

[21]        
There could be no doubt that the plaintiff suffered a whiplash injury as
a result of the accident. I accept the plaintiff’s evidence that the morning
after the accident she was in excruciating pain and, as a result, attended the
Bulkley Valley District Hospital. I accept her evidence that she still suffers
pain to her neck and shoulder muscles. In this regard I place great reliance on
the evidence of Mr. Cook.

[22]        
Dr. Marlene Rossouw (now Dr. Muller) attended to the plaintiff for her
injuries on April 4, 2005. She testified that during that visit the plaintiff
was complaining of pain to her neck and stiffness in her neck muscles. She
testified that she referred the plaintiff to a physiotherapist.

[23]        
Dr. Rossouw became re-acquainted with the plaintiff during a consult,
which took place after the plaintiff moved to Victoria to attend St. Michaels
University School. In the plaintiff’s medical legal report dated November 21,
2009, the doctor wrote:

After getting reacquainted with Kelsey I realized that she is
indeed still suffering with symptoms similar to when I last saw her in
Smithers. She reported symptoms including:

-neck pain (severe), left sided
after prolonged sitting

-muscle spasm
and pain (prolonged in nature) in left neck, trapezius, left upper back induced
by strenuous activities such as carrying heavy objects, axe picking,
shovelling, running around and bending over while playing with small children
and carrying a back pack.

[24]        
Dr. Schweigel, an orthopaedic surgeon, reviewed the reports of the
general practitioners who attended to the plaintiff. Dr. Schweigel also
examined the plaintiff himself. In his medical report he stated, in part:

… if one accepts the fact that
her neck range of motion was normal on April 5, 2005, in the Emergency, then
one has to conclude that she had a minor soft tissue injury to the cervical
spine or no soft tissue injury to the cervical spine because of the MVA of
March 14, 2005 and that she had a mild soft tissue injury to the cervical spine
on March 27, 2005 from the tobogganing accident. This is the only conclusion I
can make. I have already given my reasons why she had no injury to the cervical
spine because of this MVA of March 14, 2005 and/or at the very most, a very,
very minor soft tissue injury to the neck because of the MVA of March 14, 2005.
If she had a very, very minor soft tissue injury to the cervical spine because
of the MVA of March 14, 2005, then that soft tissue injury could have quite
easily have resolved within days after this MVA. This brings us back to the
tobogganing accident of March 27, 2005. She had some physical abnormalities at
that time to the cervical spine with loss of motion. She had facial abnormalities.
One then has to ask the question “Did she have a minor soft tissue (sic) to the
cervical spine or a moderate soft tissue (sic) to the cervical spine because of
this tobogganing accident?” The fact that she had normal range of motion of the
cervical spine on April 5, 2005, approximately one week after the tobogganing
accident, together with no other physical abnormalities in the cervical spine,
leads me to conclude that she had a minor soft tissue injury to the cervical
spine because of the tobogganing accident.

[25]        
Applying my findings to the law as enunciated below, I order that the
defendant pay to the plaintiff the sum of $27,500 for non-pecuniary damages, $449.78
for special damages, court order interest and costs.

[26]        
In order to determine the legal basis for this award, it may be prudent
for me to instruct myself on the law as it applies to these types of cases.

D.       THE LAW AND ANALYSIS

[27]        
The first principle in personal injury cases is that the plaintiff be
returned to the position that she would have been in absent the defendant’s
negligence: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32, 140
D.L.R. (4th) 235. To this effect, the court may award special damages and
general damages. Special damages are those which the plaintiff claims and
proves as reasonable out-of-pocket losses and expenses; they cannot be inferred
from the nature of the act. In contrast, general damages arise under
presumption of law; they are presumed to flow from the negligence of the
defendant and cannot be assessed with precision.

[28]        
In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83
D.L.R. (3d) 452, the Court broke down the general damages award into
non-pecuniary loss, cost of future care, and loss of prospective earnings. This
approach has become standard in British Columbia. For example, see: Kailey
v. Kellner, 2007 BCSC 1449; Myers v. Leng, 2006 BCSC 1582; and Sinnott
v. Boggs, 2006 BCSC 768, aff’d 2007 BCCA 267, 69 B.C.L.R. (4th) 276.

[29]        
According to the Supreme Court of Canada in Andrews at 265
(S.C.R.), calculating the total award for damages:

… is largely a matter of
arithmetic. Of course, in addition, it is customary for the Court to make an
overall assessment of the total sum. This, however, seems to me to be a
hangover from the days of global sums for all general damages. It is more
appropriate to make an overall assessment of the total under each head of
future care, prospective earnings, and non-pecuniary loss, in each case in
light of general considerations such as the awards of other courts in similar
cases and an assessment of the reasonableness of the award.

[30]        
In the case at bar, the plaintiff claims special and general damages. To
succeed, she must prove, on a balance of probabilities, that the defendant
caused or contributed to her injury: Athey; and Snell v. Farrell,
[1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289. On the basis of the evidence adduced
at this trial, I find that the plaintiff has not established a causal
relationship between the injuries she suffered as a result of the defendant’s
negligence and the pain she was experiencing at the time of trial. The
plaintiff was injured as a result of the accident in issue, but the injuries
were time limited and discrete from her current ailments.

i.        Non-Pecuniary Damages

[31]        
In Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19,
Kirkpatrick J.A., writing for the majority, proposed a list of factors that may
be considered when determining an award for non-pecuniary damages. At para. 46
of that decision, she wrote:

The inexhaustive list of common factors cited in Boyd
[v. Harris (2004), 237 D.L.R. (4th) 193, 2004 BCCA 146] that influence
an award of non-pecuniary damages includes:

(a)     age of the plaintiff;

(b)     nature of the injury;

(c)     severity and duration of
pain;

(d)     disability;

(e)     emotional suffering; and

(f)      loss or impairment of
life;

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

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

(h)     impairment of physical and
mental abilities;

(i)      loss of lifestyle; and

(j)      the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54, 136 A.C.W.S. (3d) 982).

[32]        
By using lists of factors, such as the one above, awards for
non-pecuniary damages should be roughly similar for persons with similar
injuries. However, each case turns on its own specific facts. Thus, the awards
as they relate to soft tissue injuries suffered in motor vehicle accidents in
British Columbia have varied widely. For example:

(a) Henri v. Seo, 2009
BCSC 76, in which the plaintiff, a high school student at the time of the
accident, suffered soft tissue injuries that resulted in chronic pain in her
neck and headaches. In the six years since the accident, the plaintiff remained
active despite the chronic pain and did not miss any of her school classes or
lose any time from her employment. Non-pecuniary damages were assessed at
$50,000.

(b) Keller v. Cole,
2001 BCCA 550, in which the Court of Appeal upheld an award of $40,000 for a
soft tissue injury in the neck, in which the plaintiff had a pre-accident
history of neck problems. In that case, the trial judge concluded that the
plaintiff had largely returned to her pre-accident state approximately 4.5
years after the motor vehicle accident.

(c) Sinnott, where
the plaintiff, who was 21 years old at the date of trial, had “gotten on with
her life” but continued to suffer from soft tissue pain four years
post-accident. The pain did not cause her harm, but limited her function in
some activities. Non-pecuniary damages were assessed at $35,000.

(d) Myers, in which
the court awarded $25,000 in non-pecuniary damages for soft tissue injuries
sustained in a low-velocity impact motor vehicle accident with six weeks’ total
disability, and ongoing pain in the neck and back and headaches, aggravated by
heavier physical work, three years after the collision.

(e) Golam v. Fortier,
2005 BCSC 598, where the plaintiff received $25,000 in non-pecuniary damages
for a mild to moderate soft tissue injury. Although the plaintiff continued
with his daily activities, he did so in pain. At trial (two years
post-accident), the judge found that the plaintiff would continue to suffer
pain from the car accident injury, that there was no permanent disability and
that the pain would eventually resolve.

(f) Jacobs v.
McLaughlin, 2008 BCSC 483, involving a claim against three defendants for
injuries sustained in three motor vehicle accidents. There were no pre-existing
soft tissue injuries from the first accident at the time of the second accident.
In the second accident, the plaintiff sustained soft tissue injuries. At para. 269,
the court held:

[269] … that the maximum duration the soft tissue injuries
could be reasonably attributed to the motor vehicle accident of January 25,
2005 is from that date until May 3, 2006, when the MS relapse overwhelmed all
other concerns. After that point, even if there were residual symptoms, their
significance was “miniscule” or unrelated and not attributable to the
negligence of the defendant.

The plaintiff continued to
experience intermittent pain in the 16 months after the accident, but it did
not interfere with her day-to-day function to any great extent. She completed
post-secondary courses with reasonably good grades, met friends for coffee,
played scrabble and went for walks. These facts indicated that she was able to
cope with the residual pain. Non-pecuniary damages were assessed at $23,500.

(g) Bray v. Gaete,
2004 BCSC 335, involving a low-velocity impact, with the plaintiff sustaining
minor neck and low back injuries, and having continuing symptoms. The court
awarded $20,000 in non-pecuniary damages.

(h) Kailey, where
the plaintiff received injuries in two separate low-velocity impact motor
vehicle accidents, both of which resulted in minimal damage to the vehicle. The
court held:

[63]      The plaintiff suffered
soft tissue injury to his neck and upper back in the collision of April 2,
2005.  His initial disability lasted approximately five weeks and resulted in
his being unable to work for about a month.  He returned to work on May 8, 2005
at which time his major symptoms had improved although his neck pain and
occasional headaches continued.

[64]      On August 15, 2005, Mr.
Kailey was injured in a second motor vehicle collision which resulted in a mild
aggravation of his existing soft tissue injuries.  These symptoms, primarily of
neck pain, lasted for a further five to six weeks by which time those related
symptoms had largely dissipated.

[65]      Mr. Kailey’s continuing
symptoms stem from his left shoulder and, in my view, have not been shown to be
related to these motor vehicle accidents.

…

[67]      I award non-pecuniary damages for the first accident
of $15,000, and for the second of $5,000.

(i) Ton v.
Daimlerchrysler Services Canada, 2007 BCSC 665, in which the plaintiff sued
for damages resulting from the second of three motor vehicle accidents which
occurred on November 8, 2002, August 20, 2003 and May 21, 2004. She suffered
neck and back pain in each of these accidents. The court found that the
plaintiff was 85-90% recovered at the time of the second accident and that it
was “virtually impossible” to determine whether her condition at the time of
trial was attributable to the second or the third accident. The court assessed
general damages for pain and suffering at $6,000 for the second accident,
concluding at para. 12 that:

[12]      It is more probable that
the plaintiff’s current problems are more likely attributable to the May 21,
2004 accident than the April 2003 accident. I conclude that for the following
reasons:

1.   She was
85-90% recovered from the 2003 accident within approximately eight months.

2.   The
plaintiff’s doctor described the 2003 accident as a moderate injury to her neck
and low back.

3.   The
plaintiff’s doctor described the 2004 accident as a severe exacerbation with
marked pain and stiffness.

4.   The first
time the plaintiff was prescribed a prescription anti-inflammatory was after
the third accident.

5.   The plaintiff missed no work during
the eight months after the 2003 accident, but missed 3 or 4 days of work
because of soreness after the 2004 accident.

[33]        
The plaintiff suggests an award for general damages in the range of
$70,000 to $80,000. In my opinion, this sum is too high in light of my
findings. The plaintiff suffered a whiplash injury, seatbelt bruises,
lacerations and a bump on her head. While there is evidence that the plaintiff
continues to experience some pain from the trapezius muscle to the neck area,
she has failed to establish that it is a result of the accident in issue. The
plaintiff continues to engage in recreational activities such as downhill
racing, dancing and hiking, and completed high school with good grades.

[34]        
I assess non-pecuniary damages at $27,500. This sum fairly compensates
the plaintiff in light of her age, the pain and suffering she experienced after
the accident, the restrictions in the enjoyment of the activities that she
engaged in at school and recreationally, the discomfort she experienced while
working, and the general loss of lifestyle that resulted from the negligence of
the defendant. In making this conclusion, I draw support from the decisions of Sinnott
and Jacobs.

ii.       Cost of Future Care and Future Loss of Earnings

[35]        
The defendant is only liable to the extent of the damage caused by
his/her negligent act: Andrews.

[36]        
 In Jacobs, the plaintiff was awarded $23,500 for non-pecuniary
damages resulting from injuries sustained in the second of three successive
motor vehicle accidents. At paras. 276-277, the court found the plaintiff
did not satisfy “the evidentiary onus upon her to demonstrate a substantial
possibility of a future event of loss resulting from soft tissue injuries” and
did not establish a medical foundation for an award for future care for
injuries sustained in the second accident.

[37]        
In this respect, the present case is similar to Jacobs. The
plaintiff has not established that the pain and suffering that she currently
experiences is a result of the accident in issue. As noted by Dr. Schweigel in
his medical report of August 29, 2007: “she does not have to restrict herself
in any activities she so wishes. She will not be restricted in the future from
any type of work, social and sport activities she wants to do.” Therefore,
although the plaintiff is entitled to non-pecuniary damages, she is not
entitled to an award for future losses. To make an award for future loss would
put the plaintiff in a position that is better than she would have been but for
the car accident: Athey at para. 32.

iii.       Special Damages

[38]        
The plaintiff may be reimbursed, at the expense of the defendant, for
any reasonable expense that she incurred as a result of the accident in issue.

[39]        
On the basis of the evidence adduced at this trial and on the basis of
the findings made by me, I order that, in addition to the non-pecuniary damages
awarded to the plaintiff, she receive special damages as follows:

E.       CONCLUSION

[40]        
The plaintiff is awarded non-pecuniary damages of $27,500 and special
damages of $449.78. The plaintiff’s claims for cost of future care and future
lost earnings are dismissed. The plaintiff is entitled to her costs and
interest in accordance with the Court Order Interest Act.

“Romilly J.”