IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101201

Docket: S17725

Registry:
Chilliwack

Between:

Crystal Warkentin

Plaintiff

And

Glenda Elizabeth
Riggs

Defendant

Before:
The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1]          
Crystal Warkentin claims damages for injuries that she sustained in a
motor vehicle accident (the “accident”) on March 14, 2005. She was driving west
on Old Clayburn Road near the intersection of Old Clayburn Road and Immel
Street in Abbotsford. She was driving a 2001 Mazda MX5 vehicle. Glenda Riggs,
the defendant, was driving a Ford Ranger pickup truck. The pickup truck struck
the Mazda on the passenger side, damaging it from the rear wheel well to the
front wheel well. The force of the impact propelled the Mazda to the south,
across the eastbound lanes of traffic. The Mazda came to rest on the south side
of Old Clayburn Road to the west of the point of impact. The defendant admits
liability for the collision.

[2]          
The principal issue is whether Ms. Warkentin’s injuries and continuing
symptoms, including chronic pain, were caused by the accident.

The Plaintiff’s Injuries

Plaintiff’s Evidence

Before the Accident

[3]          
The plaintiff was born in November 1974. While in high school, Ms.
Warkentin was employed by Dr. Takasaki, an orthodontist in Abbotsford. She
graduated from high school in June 1992. She did not consider going to
university full-time; Ms. Warkentin says: “I had to work”. She attended the
University College of the Fraser Valley (UCFV) part-time. She continued at UCFV
throughout 1993 and to the winter of 1994, when she decided to work full-time
at the orthodontist’s office. In 1998, the plaintiff married Todd Warkentin.

[4]          
In the fall of 2000, Ms. Warkentin decided to go into accounting. She
applied for the business administration program at UCFV and was accepted in
February 2001. She took two courses in each of two semesters per year. Before
the accident, she had completed some courses towards that degree. She requires
a further 18 courses in order to complete her degree in business
administration.

[5]          
While Ms. Warkentin pursued her education, she continued to work
full-time at the orthodontist’s office, although her employer became Dr. A. P.
Woo Inc. She was a financial coordinator. Beginning in July 2004, the plaintiff
began providing additional professional services to Dr. Woo Inc. through her
proprietorship, T. C. W. Consulting.

[6]          
Ms. Warkentin and her husband moved into their single family detached home
in Abbotsford in May 2002. The plaintiff describes performing extensive house
maintenance including gardening and painting. She would cook and clean every
second week although she had housekeeping help for a few hours every two weeks.
Ms. Warkentin describes her standards for housekeeping as “very high.”

[7]          
Ms. Warkentin says that she frequently entertained before the accident. She
would shop for groceries and prepare dinners. Ms. Warkentin said that she did
not have any difficulty sleeping before the accident and did not experience any
soreness or stiffness. She was able to accommodate working full-time and going
to school from seven to ten in the evening. The plaintiff describes herself as
very energetic and enthusiastic about the celebration of holidays. She also
engaged in recreational activities including volleyball, basketball, track and
field, skiing, and water sports. She also played hockey and softball. She began
golfing in 2001.

[8]          
Ms. Warkentin says that she complained to a chiropractor of sleeplessness,
memory loss, neck pain and back pain in January 2001. She also attended a
chiropractor during a 21-month period between April 2003 and January 2005. Her
complaints were related to soreness in her back and neck. Ms. Warkentin says
that she did not suffer any migraine or tension type headaches, enjoyed a
normal sleep pattern, experienced only occasional back pain and was generally
healthy.

The Accident

[9]          
Ms. Warkentin says that she was driving to work on March 14, 2005. She recalls
her vehicle being hit but she did not know what happened. She visited her
family doctor that afternoon complaining of body stiffness and tightness, as
well as neck, shoulder and upper back pain.

After the accident

[10]       
Within a few days or a week following the accident, Ms. Warkentin began
to have recurring headaches. She experienced difficulty sleeping. Ms. Warkentin
began attending physiotherapy at Glenn Mountain to address significant pain and
limitation of motion in her right shoulder. She experienced low back pain which
become more severe. She had pain in her right elbow, right shoulder, neck and
head.

[11]       
In February 2006 Ms. Warkentin had shoulder surgery, performed by Dr.
Crystal Smith. The findings of the surgery revealed a normal joint, no rotator
cuff tear, with a variant bicep tendon insertion. She missed four full days of
employment with Dr. Woo related to the surgery. The Glenn Mountain report of March
9, 2006 indicates that Ms. Warkentin reported that she had a lot of headaches after
the surgery, but she had not suffered headaches before that.

[12]       
In April 2006, Ms. Warkentin agreed to a position of controller at VIP
Mazda, which was owned by her father-in-law. She was offered $50,000 per year
to start employment with VIP Mazda. Ms. Warkentin says that she had understood
that upon receiving a certified general accounting designation her income would
increase to $100,000. She worked 40 hours a week and sometimes more. The job at
VIP Mazda was more complex than the position with Dr. Woo: there were more
employees, more departments, and more complex accounting procedures. Ms.
Warkentin said that she had no difficulties with the job until 2008.

[13]       
In her evidence, Ms. Warkentin states that throughout 2006 she was able
to concentrate fully at work and was able to work whatever hours were necessary.
She says that she had moderate infrequent headaches and some pain, although it
did not interfere with her work or homemaking tasks.

[14]       
Ms. Warkentin enrolled in an income tax course during the winter
semester of 2007. She says that she struggled with the course because of memory
difficulties due to lack of sleep and concentration.

[15]       
In 2007, Ms. Warkentin reported to her family physician and to Dr. J. S.
Jaworski, a specialist in physical medicine and rehabilitation, that the pain
in the right side of her neck and shoulder were steady and of considerable intensity.
She linked the pain to the injuries she received in the accident in March 2005.

[16]       
From 2008 onwards, Ms. Warkentin began to see several physicians at the request
of her counsel. She saw Dr. D. G. Hunt, a consultant in pain medicine, Dr.
Gordon Robinson, a neurologist whose clinical practice is devoted to the
assessment and management of patients suffering from headache disorders, Dr. R.
N. Stewart, a physical medicine and rehabilitation physician, and Dr. Jaworski.
Ms. Warkentin says that the physicians’ reports concerning her history before
and after the accident are accurate.

[17]       
In 2008 and 2009, Ms. Warkentin was having increased difficulty
functioning at work. Dr. Jaworski diagnosed Ms. Warkentin as having myofascial
pain syndrome (diffused pain) and identified tender/trigger points. By early
2008 Ms. Warkentin was suffering from noticeable fatigue. In April 2008 Dr. Jaworski
identified fibromyalgic points in the upper body bilaterally. In November 2008
Dr. Frew, the plaintiff’s family physician, detected 14 tender points.

[18]       
In October 2009, the plaintiff attended Orion Rehabilitation and
Assessment Centre (“Orion”), a pain clinic. Ms. Warkentin describes having learned
techniques to manage her pain. She learned to pace herself and avoid activities
which brought on pain, fatigue and exhaustion and cut her working hours to half-time.
At the time of trial, Ms. Warkentin says that she continues to suffer from the
following disorders, even after her program at the pain clinic: her headaches
are less severe, she has pain in the neck, head, right shoulder, which are
interconnected but less persistent, she experiences morning stiffness for at
least one hour and she is fatigued by the end of the work week. She spends
between 35 and 40 percent of her time on weekends recovering for the next week
of work. She experiences multiple awakenings during the night as a result of
pain. Ms. Warkentin notes improvement in her cognitive function if she is able
to keep her pain levels down. Ms. Warkentin considers that she cannot resume
her university studies and does not expect that she will achieve her degree in
business administration or her CGA designation. She has had to relax her
standards of house cleanliness and maintenance, reduce her activities including
home activities, entertaining and celebrating, participating in recreational
activities and family activities. She is ambivalent about whether she ought to
have children because it will require her to go off her medications during the
pregnancy and nursing. She also has concerns about her physical ability to care
for children.

[19]       
Ms. Warkentin reports the following areas of pain in her body:

1)       
headaches, including in the forehead and around both eyes;

2)       
base of neck radiating over one and/or both ears;

3)       
trapezius muscle;

4)       
right shoulder;

5)       
upper right back, worse than upper left;

6)       
pain radiating down to one or both elbows; low back pain;

7)       
pain sometimes in the thighs right above the knees;

8)       
knees; and

9)       
upper calves.

Medical Evidence

Dr. Frew

[20]       
Dr. Peter Frew provided evidence of Ms. Warkentin’s pre-collision medical
history from when she became his patient in August 2000. He said that she did
not complain of headaches, neck pain, shoulder pain, sleeplessness or other
disorders.

[21]       
After the accident, Dr. Frew referred Ms. Warkentin to a physiotherapist,
kinesiologist, massage therapist and acupuncturist. He referred her for arthroscopic
surgery to her shoulder, to Dr. Jaworski and to a neurologist. She had
radiographic investigations. She also received medications and injections which
Dr. Frew prescribed.

[22]       
Dr. Frew described Ms. Warkentin’s symptoms as she stated them to him
after the accident. In March 2005 she just complained of symptoms in her neck, low
back and upper shoulder. In August 2005 Dr. Frew noted problems with
sleeplessness and morning stiffness. In March 2007 Dr. Frew noted “headaches
problematic since MVA”. In May 2007 he noted that Ms. Warkentin complained of
feelings of hopelessness. In September 2007 he noted Ms. Warkentin describing
waking up to five times nightly. In May 2008 he provided advice regarding
chronic pain and headaches. On November 13, 2008, he screened Ms. Warkentin for
fibromyalgia and identified 14 out of 18 tender points.

[23]       
On November 13, 2008, Ms. Warkentin attended at Dr. Frew’s office and
complained that her pain was now in the left side of her neck and shoulder,
both of her elbows and both of her knees. She had not described these symptoms
before.

Dr. Jaworski

[24]       
As stated, Ms. Warkentin was referred to Dr. Jaworski in the fall of
2007 to assess her right shoulder, upper back, neck and headache symptoms
following the accident. Ms. Warkentin did not report any pre-accident symptoms
to Dr. Jaworski. He examined her on six occasions between September 2007 and
June 2008. He increased the dosage of amitriptyline prescribed by Dr. Frew,
which assisted Ms. Warkentin’s sleeping. In October 2007 he found
tender/trigger points over the plaintiff’s neck and back. In April 2008 he
found tenderness in fibromyalgia points in the plaintiff’s upper body
bilaterally. He noted that the restriction in the plaintiff’s neck mobility had
improved from the first examination of September 19, 2007. On May 2008 he
identified a chronic pain situation requiring management of lifestyle issues
and proper balance. When Dr. Jaworski last examined the plaintiff on June 11,
2008, Ms. Warkentin described pains in her neck and right shoulder. He noted
that “[i]n spite of her pains, she continued with her full-time unrestricted
work and she tried to stay mentally positive.” Dr. Jaworski found that
Ms. Warkentin had “mildly restricted neck mobility and … tenderness in
fibromyalgic points in her upper body bilaterally.” He considered that “[f]urther
management [of chronic myofascial pain syndrome] was empirical with the focus
on maintaining her functional status at least at the current level.”

Dr. Hunt

[25]       
 Ms. Warkentin was referred to Dr. Hunt by her counsel in January 2009. Dr.
Hunt’s primary diagnosis was: (1) Whiplash Associated Disorder with associated
cervicogenic tension headaches and myofascial pain syndrome; (2) status post right
shoulder arthroscopic acrominoplasty; (3) primary fibromyalgia syndrome (post
traumatic); (4) mood disorder (dysphoria), sleep disorder and cognitive
disorder secondary to chronic pain condition; and (5) inflammatory bowel
disease. Dr. Hunt opines that Ms. Warkentin’s injuries from the accident in May
2005 were the cause of the conditions which he diagnosed.

[26]       
Dr. Hunt considers that the management of these disorders is the same:
pain reduction. The elimination of pain is not possible. He recommended an
interdisciplinary chronic pain program, such as that offered by Orion, which
has the objective of learning to manage the pain. Ms. Warkentin undertook that
program in September 2009.

[27]       
Dr. Hunt considers that Ms. Warkentin is partially disabled from
performing full-time work and will likely be unable to participate in a normal
work environment full-time. She can work approximately four hours per day. Full-time
work will aggravate Ms. Warkentin’s pain, diminish physical tolerances and
bring on fatigue and mood disturbance. Ms. Warkentin must reduce activity that
aggravates her pain and brings on other negative effects.

[28]       
Dr. Hunt agreed in cross-examination that Ms. Warkentin’s condition did
not progress from regional pain in the neck and right shoulder to more
widespread pain until after Dr. Jaworski examined her in early 2008.

[29]       
The defendant objects to the admissibility of Dr. Hunt’s report of March
27, 2009 on the basis that Dr. Hunt is acting as an advocate on behalf of Ms.
Warkentin. She asserts that the report is “thinly disguised argument in the
guise of opinion”. Dr. Hunt does not provide a balanced discussion of fibromyalgia
and its possible application to Ms. Warkentin’s case. He discusses medical
principles and their application to the plaintiff in a biased and argumentative
manner. I will address the defendant’s objections further in these reasons.

Dr. B. Vaisler

[30]       
Dr. Vaisler is an orthopaedic surgeon who examined the plaintiff on
behalf of the defendant on May 29, 2008. He noted the following complaints:

1)       
neck pain;

2)       
pain in her right shoulder and trapezius muscles, which had improved
since the accident and was intermittent;

3)       
intermittent aching on the medial and lateral aspects of her right
elbow, occurring at night; and

4)       
minimal stiffness in her low back.

[31]       
At Dr. Vaisler’s exam, Ms. Warkentin denied any significant work
disability.

[32]       
Dr. Vaisler diagnosed the plaintiff as having sustained a “soft tissue musculoligamentous
injury to her neck and low back, along with post traumatic impingement of her
right shoulder as a result of the … accident of March 14, 2005.” Dr. Vaisler
opined that Ms. Warkentin may have complaints of intermittent annoying and
disabling neck pain from time to time with some activities for the foreseeable
future and that her right shoulder symptoms would improve.

[33]       
He considered that the plaintiff was “managing her accounting jobs and
should be able to continue on with that type of work for the foreseeable
future.”

Dr. R. N. Stewart

[34]       
Ms. Warkentin was referred to Dr. Stewart, a physiatrist, by her counsel
and was examined on May 6, 2009. Dr. Stewart recorded Ms. Warkentin’s
complaints:

She complained of a number of
problems resulting from a motor vehicle accident on March 14, 2005, including
neck pain; headaches; right shoulder pain; pain in the elbows and wrists, particularly
the right; pain in her upper and mid back, worse on the right; worsening of her
previous low back pain; pain in both knees; sleep disturbance; and “severe
fatigue”.

[35]       
Ms. Warkentin advised Dr. Stewart of Dr. Hunt’s fibromyalgia diagnosis.

[36]       
Dr. Stewart opined that Ms. Warkentin sustained soft tissue injuries to
her neck and back in the accident and that her symptoms had been aggravated by
increased muscle tension. She continues:

She experiences secondary muscle
tension headaches and clenching of her teeth. She has had appropriate rehabilitation
for her injuries but continues to experience neck, upper and mid back pain as
well as pain in the right shoulder and arm. She also has pain in both knees and
there has been a slight aggravation of her previous low back pain.

[37]       
The basis of Dr. Stewart’s opinion that the accident was responsible for
her complaint and symptoms is based upon her understanding that the complaints
were caused by the accident and were consistent since the time of the accident,
as described to her by Ms. Warkentin.

[38]       
Dr. Stewart is skeptical about a diagnosis of fibromyalgia. She explains
that she does not find it to be a useful diagnosis. She describes it as a “controversial
diagnosis.” She says that it is within her field of expertise but she has never
made such a diagnosis because she does not believe that fibromyalgia is a
condition of pathology that is any different from soft tissue pain. She
considers names such as myofascial pain syndrome, soft tissue injury and other
descriptives of conditions are more useful than the term “fibromyalgia.”

Dr. Gordon Robinson

[39]       
Dr. Robinson is a neurologist whose clinical practice is devoted to the
assessment and management of patients suffering from headache disorders. He examined
the plaintiff and prepared a report dated June 2, 2009.

[40]       
Dr. Robinson describes that Ms. Warkentin had headaches related to her
neck and shoulder pain soon after the accident. She continued to have frequent
headaches of mild to moderate intensity. Dr. Robinson opines that Ms.
Warkentin’s history in examination is consistent with chronic headache related
to neck injury.

[41]       
Dr. Robinson explains that headache is a common accompaniment of neck
injuries. The diagnosis of posttraumatic headaches rests entirely on a close
temporal relationship to the appropriate trauma. He describes the treatment of
chronic headache related to neck injury as usually difficult. He states, “there
is no ability to cure the chronic pain related to soft tissue injury and at most
patients may experience temporary benefit from one or other physical therapy.”
He considers that Ms. Warkentin does not find these treatment approaches to be
helpful. Dr. Robinson believes that Ms. Warkentin has had modest improvement
with the use of a combination of medications: amitriptyline, gabapentin and
tramadol. However, increasing the doses of the drugs would not improve her
condition. Dr. Robinson has had clinical experience with the use of botulinum
neurotoxin type A (“Botox”) in patients with chronic headache related to neck
injury. He would encourage Ms. Warkentin to seek this treatment.

[42]       
Dr. Robinson says that it is probable that Ms. Warkentin will continue
to have headache, neck and shoulder pain for many years to come, although there
is a possibility for improvement over the next three to five years,
particularly if she is responsive to therapeutic Botox.

Dr. Barry Koehler

[43]       
Dr. Koehler is a rheumatologist. His practice does not focus on fibromyalgia;
however, in his examination of patients he looks for discrete tender points
which he describes as having tenderness which is more intense than it is in
surrounding tissues. When he examined Ms. Warkentin on April 1, 2010, he found only
seven tender points in Ms. Warkentin. He also considered that Ms. Warkentin had
no complaints of widespread pain. In his view, Ms. Warkentin would therefore
not meet the criteria for the diagnosis of fibromyalgia. His prognosis of Ms.
Warkentin was based on her attitude and instructions which she had adopted from
her training at Orion. Dr. Koehler believes that people tend to improve and he
is optimistic that Ms. Warkentin will improve as well.

[44]       
Dr. Koehler testified that the cause of fibromyalgia is not known. He
agreed that there is a possibility of trauma causing fibromyalgia.

Dr. Rhonda Shuckett

[45]       
Dr. Shuckett is a rheumatologist who teaches and publishes on issues
related to fibromyalgia.

[46]       
Dr. Shuckett prepared a rebuttal report to that of Dr. Koehler. She
examined Ms. Warkentin on March 31, 2010 and assessed for painful tender points.
She found Ms. Warkentin to have discreet painful tender points totalling 13 out
of 18 distributed in all four quadrants of the body. She had no positive
control points (0/7).

[47]       
Dr. Shuckett acknowledged that there is a debate in the medical journals
about whether trauma can induce fibromyalgia. For causality, a temporal
association is important although fibromyalgia is not instantaneous. It can
take months, a year, or 18 months to evolve after a motor vehicle accident. In Dr.
Shuckett’s original report of April 6, 2010 she stated at page 14:

As far as causality of
fibromyalgia, this is a more debatable subject. There are studies both pro and
against a link between trauma, such as a neck injury, and fibromyalgia. In my
extensive experience seeing patients with soft tissue injuries I find it is not
unusual for them to evolve into a more diffuse generalized soft tissue pain
syndrome such as fibromyalgia.

[48]       
She also states on that page:

Just when [Ms. Warkentin] evolved
to fibromyalgia is not clear for me to say. I can just comment that I agree
that it is present at the current time. I believe that the MVA has likely
materially contributed to the evolution into fibromyalgia but, again, there is
room for debate here.

[49]       
In her evidence, Dr. Shuckett agreed that the medical literature is not
determinative of whether or not trauma can cause fibromyalgia at all, and in
this case it is debatable because of the delay of the onset of fibromyalgia.

Physiotherapy and Kinesiology Evidence

[50]       
Edgar Emnacen is an occupational therapist. He was qualified as an
expert functional capacity evaluator and ergonomic assessor. He opines that the
symptoms which Ms. Warkentin reports are mostly reliable as she presented with
a corresponding loss of range of motion. She did report incapacitating pain
during the testing but was able to continue with the testing. When she was
examined by Mr. Emnacen on June 23, 2009, she did not report any pain in her
lower extremities. He testified that while Ms. Warkentin has physical capacity,
the activity required to give effect to that capacity generates headache and
pain.

[51]       
Ms. Warkentin was treated at Glenn Mountain Rehabilitation Centre over
two periods: the first immediately following the accident, from May 2, 2005 to June
29, 2005; and the second between March 9, 2006 and June 20, 2006. Reports for
the centre were prepared by kinesiologists who were involved in her
rehabilitation. These kinesiologists included Tina Carey, Kerri-Ann Huck and
Jeff Derksen, all of whom gave evidence.

[52]       
The June 2, 2005 Glenn Mountain records indicate that Ms. Warkentin
stated that she felt “80% of her pre MVA status”, that Ms. Warkentin “relays
that she does most of the cooking and general light cleaning tasks [and] has a
cleaning lady … to do thorough cleaning…” , and that “Ms. Warkentin states
that sleeping is normal.” On June 29, 2005 the Glenn Mountain records state: “Crystal
reports that she is doing well overall achieving about 90% pre-MVA status”. It
continues, “Crystal relays that she is able to do all her pre-MVA household
chores … she can do the normal every day cleanup. She has no problems
cooking, except that she still needs her husband to lift big pots of water. Sleeping
and driving are fine for Crystal.” The records were prepared by the kinesiologist
who provided treatment to Ms. Warkentin, each of whom confirmed in evidence
that they wrote what Ms. Warkentin told them.

[53]       
Ms. Warkentin explained that she understood that she was being asked to
comment on her improvement from the time that she first attended at Glenn
Mountain after the accident, not from her pre-accident condition. She urges
that references to her “pre-MVA” condition should be read in that context.

Admissibility of Dr. Hunt’s reports

Position of the Parties

[54]       
The defence argues that Dr. Hunt’s report of March 27, 2009 (the
“report”) is inadmissible on the basis that he is not impartial: his reports
are presented in an argumentative way, emphasizing matters which benefit the
plaintiff’s position and ignoring those which do not support the plaintiff’s
position; he purports to quote from the medical literature but does not present
it in an objective way; and he ignores the medical literature which does
not support the plaintiff’s position.

[55]       
The defence argues that Dr. Hunt’s report of April 14, 2010 (the
“rebuttal report”) is also inadmissible as it was delivered after the deadline
for delivery of experts reports set out in Rule 40A, and is not responsive to
Dr. Koehler’s opinion.

[56]       
The plaintiff says that Dr. Hunt is a clinician with a specific
scientific interest in chronic pain matters, including the course, treatment and
nature of pain as well as fibromyalgia. His opinions are objective and
impartial; he advocates for his opinion within his field of expertise. In his
testimony, Dr. Hunt was ready to provide both sides of position, but the
defence objected to him providing evidence on matters not addressed in his
written report.

Decision on admissibility

[57]       
In his Curriculum Vitae, Dr. Hunt describes his professional and
academic history from 2006 to the present as “Expert Medical Legal Consultant
providing opinions on behalf of patients with chronic pain who are seeking
legal remedies with respect to their condition.”

[58]       
Dr. Hunt’s report adopts a particular format. He uses bold font to
highlight words and phrases which benefit the plaintiff’s claim and support his
diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical
reports. That which is contrary to the plaintiff’s claim or does not support
his diagnosis is either omitted or presented in non-bolded font. This emphasis
in support of the plaintiff’s claim and the exclusion of contrary matters is
advocacy.

[59]       
The report contains multiple sections of text which are indented
and presented in a small font. Dr. Hunt’s evidence in direct examination was
that all of those indented and small font sections, with the exception of one
which actually mentioned the plaintiff by name, were quotations from the
medical literature. On cross-examination, Dr. Hunt
was unable to provide citations for many of the excerpts included in his report
as indented small font text. On his second day of cross-examination, he
produced a portion of a textbook which he described as the source of many of
his excerpts. On reviewing the textbook, however, it became clear that Dr. Hunt
chose and presented the textbook excerpts in a manner which supported the
plaintiff’s claim and his diagnosis.

[60]       
At page 16 of his report, Dr. Hunt presents the following paragraph in
small font indented text:

The ability of physical trauma,
such as a motor vehicle accident, to trigger the development of fibromyalgia
remains a subject of intense debate. On the one hand, there are a plethora of
case reports and anecdotal accounts of individuals who have developed FMS in
close association with a motor vehicle accident. A case control study in Israel
revealed that automobile accidents with whiplash neck injuries were more
likely to result in symptomatic FMS than were industrial accidents limited
to a bony fracture of a lower extremity. (22% versus 2% of all subjects).
It is apparent that significant forces were applied to Ms. Warkenton
[sic] in the MVA of April 8, 2007 and she suffered as a consequence multiple
injuries. (emphasis in report)

[61]       
“FMS” refers to fibromyalgia syndrome.

[62]       
Dr. Hunt’s evidence on his first day of testimony was that the entire paragraph
was a quotation from the medical literature, with the exception of the last
sentence which referred directly to the plaintiff and was inadvertently
presented in small font indented text. Dr. Hunt was
asked to identify in the textbook the quotation noted above. He referred to page
273 of a textbook published in 2005, Wallace & Clauw, Fibromyalgia and
Other Central Pain Syndromes (Philadelphia: Lippincott Williams &
Wilkins, 2005).

[63]       
The actual textbook reference on page 273 is different from the
quotation presented by Dr. Hunt in small font indented text at page 16 of his
report. The actual excerpt from the Wallace & Clauw textbook was as
follows:

The ability of physical trauma,
such as an MVC, to trigger the development of FM remains the subject of intense
debate (153). On the one hand, there are a plethora of case reports and
anecdotal accounts of individuals who have developed FM in close temporal
association with an MVC (154-157). On the other hand, several authors have
raised legitimate arguments regarding the scientific veracity of this linkage
and have argued appropriately that prematurely accepting such an association
could be more harmful than beneficial – to both individual patients and society
(158 – 159). To date there is only a single case-control study directly
examining the relationship between FM and MVC. Buskila et al found that 22% of
patients with neck injury and 2% of patients with leg injury developed FM 1 year
after MVC (160). (underlining added)

[64]       
“MVC” refers to motor vehicle collision, which Dr. Hunt refers to as “MVA”.
“FM” refers to fibromyalgia.

[65]       
The Buskila study was published in 1997 and is cited at Dan Buskila et
al, “Increased Rates of Fibromyalgia following Cervical Spine Injury” (1997)
40:3 Arthritis & Rheumatism 446.

[66]       
The first two sentences in the textbook reference were quoted by Dr.
Hunt at page 16 of his report. Those two sentences, while acknowledging an
intense debate on the causal relationship between trauma and fibromyalgia,
describe only the side of the debate in support of such a causal relationship. Dr.
Hunt omitted the next sentence which dealt with the argument “on the other
hand”. He then paraphrased the reference to the Buskila study but did not
include the caution in the textbook that it was “only a single case-control
study”.

[67]       
Dr. Hunt’s reference to the Buskila study in support of a causal
relationship between trauma and the development of fibromyalgia was unbalanced.
The Buskila article itself noted, at 451, that future studies addressing the
issue of trauma and fibromyalgia should document the chronology of symptoms
following a trauma, prospectively and longitudinally.

[68]       
In 2006, a prospective longitudinal study, cited at Tischler et al, “Neck
Injury and Fibromyalgia – Are they really associated?” (2006) 33:6 The Journal
of Rheumatology 1183, was conducted specifically in order to test the
conclusions of the Buskila study. The conclusions of the Tischler study were
contrary to those in the Buskila study. Tischler’s study did not support a link
between neck trauma and fibromyalgia and stated that more studies were needed
to resolve this issue. Dr. Hunt did not refer to the Tischler study and was not
aware of its existence until presented with it at trial.

[69]       
On page 16 of his report, Dr. Hunt introduced the section on causality with
the following sentence:

In support of a traumatic
cause to her fibromyalgia, the following points are made:” (emphasis of Dr.
Hunt)

[70]       
The first point under the heading “In support of a traumatic
cause” (emphasis of Dr. Hunt) was: (a) Temporal Association. This section was
presented in small font indentation and refers to the plaintiff by name. After
noting that Ms. Warkentin experienced musculoskeletal pain of a progressively
diffuse nature, Dr. Hunt inserted the following sentence in his small font
indented text:

Typically, the progression from
acute regional pain to more widespread pain and fatigue predictably occurs
within weeks to several months and Ms. Warkenton’s [sic] clinical course
reflects such a pattern. (emphasis of Dr. Hunt)

[71]       
Dr. Hunt agreed in cross-examination that Ms. Warkentin’s condition did
not progress from regional pain in the neck and right shoulder to more
widespread pain until after Dr. Jaworski examined her in early 2008.

[72]       
In this context, Dr. Hunt’s report omits another sentence from the
Wallace & Clauw textbook. After the sentence Dr. Hunt quotes in his report,
the next sentence of the excerpt from Wallace & Clauw, at 273, is:

If such a pattern is not seen in
a given individual, it is unlikely that the MVC had any role in leading to the
development of FM.

[73]       
With Dr. Hunt’s agreement that Ms. Warkentin’s condition did not
progress from regional pain to more widespread pain until after early 2008, the
omission of this sentence is important. Ms. Warkentin had ongoing neck and
right shoulder discomfort following the accident; she did not progress from
regional pain to acute widespread pain until three years after the accident. The
required temporal association referred to in Wallace & Clauw has not been
met, even if there is some potential causal connection between trauma and the
development of fibromyalgia. Dr. Hunt’s omission of that sentence demonstrates
bias and advocacy.

[74]       
In Dr. Hunt’s description of the prognosis of persons with fibromyalgia
at  page 18 of his report, he says:

The
condition of fibromyalgia is a life-long condition and can fluctuate,
particularly when the patient’s tolerance for physical activity is exceeded or
they are under significant psychological or emotional load and symptoms become
much more intrusive. (emphasis of Dr. Hunt)

[75]       
Dr. Hunt’s statement that fibromyalgia is a life-long condition is not
qualified. The Wallace & Clauw textbook on which Dr. Hunt relies does not
support Dr. Hunt’s statement in respect of the permanence of the condition. At
page 25 of the Wallace & Clauw textbook, the authors say:

One study has reported that most
of the patients (47%) had improved or no longer satisfied the criteria for
fibromyalgia after 2 years and minimal intervention (105). In a
population-based study of persons with chronic widespread pain only 35% still
had the condition after a follow-up period of between 1 and 3 years (11).

[76]       
Turning now to the rebuttal report, I note that it is simply a
reiteration of the report. Dr. Hunt acknowledges this in the final paragraph of
the rebuttal report.

The medical diagnoses and their
full description found in the “Opinion Reasoning and Analysis” section of the
March 27, 2009 medical legal report are still appropriate and the accompanying
comments remain valid…[T]here is no new documentation or findings…which
change the opinions expressed in the [report] …

[77]       
In his testimony, Dr. Hunt was resistant to suggestions by defence
counsel that he did not present an objective opinion in his report. He was unwilling
to admit that he omitted references to the plaintiff’s medical history or her
medical records which did not support her claim or his diagnosis. He was
reluctant to agree that his presentation of the medical literature which
provided only those quotes that supported his diagnosis and prognosis, despite
being shown that those omitted sentences were necessary in the context of his
opinion, would mislead the court about the state of knowledge within his field
of expertise.

[78]       
The pre-conditions for the admissibility of expert evidence are set out
in R. v. Mohan, [1994] 2 S.C.R. 9 at para. 17. They are: relevance; necessity
in assisting the trier of fact; the absence of any exclusionary rule; and a
properly qualified expert.

[79]       
In Sengbusch v. Priest (1987), 14 B.C.L.R. (2d) 26 (S.C.), McEachern
C.J.S.C., as he then was, delineated the limitation of admissibility of expert
reports that provide argument in guise of opinion. Chief Justice McEachern
said, at p. 40:

In my view it is appropriate for the Court to enforce
reasonable limits upon the admissibility of opinion evidence. Too often, as in
this case, persons with special training or experience are retained to
construct scenarios or advance arguments in the form of an opinion when, with
proper assistance from counsel, the Court is able to analyze the evidence and
reach a proper conclusion on commonplace problems…

It is unnecessary… for counsel
to adduce arguments in guise of evidence.

[80]       
In Vancouver Community College v. Phillips, Barrett (1987), 20 B.C.L.R.
(2d) 289 (S.C.), Mr. Justice Finch, as he then was, stated at para 27:

So long as the expert remains in
the role of a confidential advisor, there are sound reasons for maintaining
privilege over documents in his possession. Once he becomes a witness, however,
his role is substantially changed. His opinions and their foundation are no
longer private advice for the party who retained him. He offers his
professional opinion for the assistance of the court in its search for the
truth. The witness is no longer in the camp of a partisan. He testifies in an
objective way to assist the court in understanding scientific, technical or
complex matters within the scope of his professional expertise. He is presented
to the court as truthful, reliable, knowledgeable and qualified…

[81]       
I find that Dr. Hunt is not a neutral and impartial expert providing
assistance to the court, but rather an advocate on behalf of the plaintiff. The
report is argument, not opinion. He did not provide a balanced discussion of
fibromyalgia and its possible application to the plaintiff’s case. His
discussion of the medical principles and their application to the plaintiff’s
case is biased, argumentative and contrary to the requirements for the
admissibility of an expert report.

[82]       
Dr. Hunt’s own description of his role as an “Expert Medical Legal
Consultant providing opinions on behalf of patients with chronic pain who are
seeking legal remedies with respect to their condition” indicates that he does
not consider his role as an expert to be that of an objective advisor to the
court.

[83]       
Dr. Hunt’s perceived role is amply demonstrated in his report. The
format he uses is designed to emphasize matters which support the plaintiff’s
claim and his diagnosis.

[84]       
Dr. Hunt presents the medical literature in a manner that suggests that
there is consensus about the causal connection between motor vehicle accidents and
the onset of fibromyalgia. He attempted to mislead the court regarding the
medical literature upon which he relies by referring only to portions which
support his diagnosis and prognosis and omitting portions which do not. He does
not refer to the cautions and qualifications in the medical literature. He is
not current with the medical literature, notably the 2006 prospective
longitudinal study by Tischler, which was conducted specifically in order to
test the conclusions of the Buskila study.

[85]       
Dr. Hunt’s testimony, particularly in cross-examination, supports my
conclusions about his report; he acted as the plaintiff’s advocate rather than
as an independent expert.

[86]       
Dr. Hunt’s report of March 27, 2009 is likely to distort the
fact-finding function of the trier of fact, and therefore its prejudicial
effect far outweighs its probative value. I find that it is inadmissible. Because
the rebuttal report is a reiteration, it is also inadmissible. I specifically
reject Dr. Hunt’s diagnoses as expressed in the report and his medical opinion
that they were caused by the accident. I reject Dr. Hunt’s diagnosis and
prognosis of fibromyalgia and his opinions about the plaintiff’s functional
limitations associated with fibromyalgia.

Analysis of the Evidence

[87]       
Before the accident, Ms. Warkentin had some complaints of sleeplessness,
memory loss and back pain, for which she sought chiropractic treatment. These
complaints did not interfere with Ms. Warkentin’s ability to function. She was
active, social, enthusiastic and ambitious.

[88]       
After the accident, the plaintiff developed recurring headaches with
pain to a moderate degree. The headaches continue. Ms. Warkentin has had
difficulty sleeping. She has ongoing symptoms of pain in her right side, head,
neck, shoulder and elbow. By June 2005, Ms. Warkentin reported to the therapist
at Glenn Mountain that she felt 80 percent of her pre-accident status and that
her sleeping was normal. By the end of June 2005, she advised the therapist at
Glenn Mountain that she was able to resume her pre-accident household chores,
had no problems cooking, could assume her normal duties and was doing well
overall, achieving about 90 percent of her pre-accident status. I note that the
plaintiff suggests that she misunderstood the question that she was asked by
the therapists at Glenn Mountain and was comparing her progress in June 2005 to
that of her immediate post-accident symptoms. I do not accept that explanation.
The therapists’ evidence was clear that they wrote what Ms. Warkentin advised
them. Even accepting Ms. Warkentin’s explanation, her comments to the
therapists demonstrated an improvement in her symptoms from the time of the
accident.

[89]       
Between February and March 2006, Ms. Warkentin had surgery performed on
her right shoulder and was off work for four full days. By March 9, 2006, there
were no restrictions associated with her shoulder. Dr. Vaisler considered that
the plaintiff’s shoulder pain was caused by the accident and that the shoulder
pain would continue to resolve.

[90]       
In 2007, Ms. Warkentin complained to Dr. Frew that she continued to have
headaches and was beginning to feel hopeless. She was waking up five times
nightly. She did not complain of widespread diffuse pain or pain throughout her
body.

[91]       
Ms. Warkentin attended Dr. Jaworski in the fall of 2007 with her
complaint of right sided neck and shoulder pains. These symptoms continued
through 2007. In April 2008, Ms. Warkentin attended at Dr. Jaworski’s office
and advised him that her complaints had remained the same and she was working without
restrictions.

[92]       
Dr. Jaworski noted in his examination of June 11, 2008 that Ms.
Warkentin had “mildly restricted neck mobility and she ha[d] tenderness in
fibromyalgic points in her upper body bilaterally.” This was the first mention
of bilateral pain, although Dr. Jaworski considered that the plaintiff could
continue with her full- time unrestricted work. While he considered that Ms.
Warkentin had myofascial pain, it was mainly in the plaintiff’s right sided
neck and shoulder. The development to a diagnosis of fibromyalgia, or something
like it, was first observed by Dr. Frew in his examination of November 13, 2008.
It was that time when Ms. Warkentin complained that her pain was now in the left
side of her neck and shoulder, both of her elbows and both of her knees.

[93]       
Dr. Stewart provided her report after examining the plaintiff on May 6,
2009. Dr. Stewart did not diagnose fibromyalgia, but did consider that the
plaintiff sustained soft tissue injuries to her neck and back in the accident. Dr.
Stewart opines that the accident was responsible for the plaintiff’s pain and
assumed that it was related to the accident based on the plaintiff’s statements
to her.

[94]       
The physicians that examined the plaintiff in 2010, Dr. Koehler and Dr. Shuckett,
have opposite views of whether the plaintiff experiences widespread pain and
whether she suffers from fibromyalgia.

[95]       
On all the evidence, I accept that the plaintiff now suffers from
widespread pain, which is possibly fibromyalgia or a more diffused generalized
soft tissue pain syndrome, and that that syndrome resulted in the plaintiff
seeking the assistance of the pain management program at Orion. It is that
chronic pain syndrome which has caused the plaintiff to cut her working hours
and avoid activities which bring on pain.

[96]       
Of the experts whose reports are admissible, Dr. Shuckett provides an
equivocal statement regarding the connection between the injuries the plaintiff
sustained in the accident and her current presentation of fibromyalgia or chronic
pain. She states in her evidence that the temporal association between
fibromyalgia and trauma is not instantaneous and suggests that it could take
months, a year, or 18 months to evolve after an accident.

Causation

[97]       
Based on the medical evidence, I find that the plaintiff’s symptoms of
widespread chronic pain or fibromyalgia did not arise until early 2008, three
years after the accident.

[98]       
While the plaintiff is clearly of the view that her symptoms are related
to the accident, the medical legal opinions do not support such a conclusion. Dr.
Stewart’s opinion is based on information provided to her from the plaintiff,
and specifically does not address the period between March 2005 and November
2008 where Ms. Warkentin did not complain of widespread chronic pain.

[99]       
I find that the medical evidence supports a conclusion that the
plaintiff suffers from the condition of either fibromyalgia or widespread
chronic pain but does not support a conclusion that it is a result of injuries
sustained in the accident.

[100]     However,
the medical evidence is not determinative of the issue of causation. As the
plaintiff points out, the court needs to deal with “legal causation”.

[101]     This
notion was addressed in the decision of Snell v. Farrell, [1990] 2
S.C.R. 311. At para. 29 of that decision, Sopinka J., for the Court, states
that “causation need not be determined by scientific precision.” It is a
question of fact which can be answered with the application of “ordinary common
sense”.

[102]    
Sopinka J. continues at para. 34:

34     It is not therefore essential that the medical experts
provide a firm opinion supporting the plaintiff’s theory of causation. Medical
experts ordinarily determine causation in terms of certainties whereas a lesser
standard is demanded by the law. As pointed out in Louisell, Medical
Malpractice, vol. 3, the phrase "in your opinion with a reasonable degree
of medical certainty," which is the standard form of question to a medical
expert, is often misunderstood. The author explains, at p. 25-57, that:

Many doctors do not understand the phrase … as they
usually deal in "certainties" that are 100% sure, whereas
"reasonable" certainties which the law requires need only be more
probably so, i.e., 51%.

[103]    
Causation was also addressed in Athey v. Leonati, [1996] 3 S.C.R.
458, where the Court stated:

13        Causation is established where the plaintiff proves
to the civil standard on a balance of probabilities that the defendant caused
or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R. 311; McGhee
v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).

14        The general, but not conclusive, test for causation
is the "but for" test, which requires the plaintiff to show that the
injury would not have occurred but for the negligence of the defendant: Horsley
v. MacLaren, [1972] S.C.R. 441.

15        The "but for" test is unworkable in some
circumstances, so the courts have recognized that causation is established
where the defendant’s negligence "materially contributed" to the
occurrence of the injury: Myers v. Peel County Board of Education;
[1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All
E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A contributing
factor is material if it falls outside the de minimis range: Bonnington
Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30
B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

16        In Snell v.
Farrell, supra, this Court recently confirmed that the plaintiff must prove
that the defendant’s tortious conduct caused or contributed to the plaintiff’s
injury. The causation test is not to be applied too rigidly. Causation need not
be determined by scientific precision; as Lord Salmon stated in Alphacell
Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by
Sopinka J. at p. 328, it is "essentially a practical question of fact
which can best be answered by ordinary common sense". Although the burden
of proof remains with the plaintiff, in some circumstances an inference of
causation may be drawn from the evidence without positive scientific proof.

[104]    
Although neither party referred to the Supreme Court of Canada decision,
Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, it is
presently the leading authority on the test for legal causation. The court
notes that the starting point is the “but for” test:

21     First, the basic test for determining causation
remains the "but for" test …

23     The "but for" test recognizes that compensation
for negligent conduct should only be made "where a substantial connection
between the injury and defendant’s conduct" is present. It ensures that a
defendant will not be held liable for the plaintiff’s injuries where they
"may very well be due to factors unconnected to the defendant and not the
fault of anyone": Snell v. Farrell, at p. 327, per Sopinka
J.

24     However, in special circumstances, the law has
recognized exceptions to the basic "but for" test, and applied a
"material contribution" test. Broadly speaking, the cases in which
the "material contribution" test is properly applied involve two
requirements.

25     First, it must be
impossible for the plaintiff to prove that the defendant’s negligence caused
the plaintiff’s injury using the "but for" test. The impossibility
must be due to factors that are outside of the plaintiff’s control; for
example, current limits of scientific knowledge. Second, it must be clear that
the defendant breached a duty of care owed to the plaintiff, thereby exposing
the plaintiff to an unreasonable risk of injury, and the plaintiff must have
suffered that form of injury. In other words, the plaintiff’s injury must fall
within the ambit of the risk created by the defendant’s breach. In those
exceptional cases where these two requirements are satisfied, liability may be
imposed, even though the "but for" test is not satisfied, because it
would offend basic notions of fairness and justice to deny liability by
applying a "but for" approach.

[105]    
The plaintiff suggests a robust and pragmatic approach to the facts
leads to the followings conclusions:

[T]he collision of March 14, 2005 was the legal cause of what
the medical personnel first observed in 2008 and later observed 2009, namely the
presence of a sufficient number of tender points in all four quadrants. Crystal
Warkentin from the outset had pain in the neck and shoulders. From the outset
she had headaches. No later than August 10, 2005 she had sleep disturbance. By no
later than May 11, 2007 she had mood disturbance and warranted a referral to a
physiatrist. By September 19, 2007 Dr. Jaworski diagnosed her as having
myofascial pain syndrome, being diffused pain, and identified tender/trigger
points. By early 2008 she suffered noticeable fatigue. By April 3, 2008 Dr.
Jaworksi identified fibromyalgic points in the upper body bilaterally. These
are all hallmarks of fibromyalgia. On November 13, 2008 Dr. Frew detected 14
tender points.

Temporality is … present in the
facts of this case. The defence will say that the requirement of temporality
has not been met because the fibromyalgic criteria must be met within months of
the collision to establish a causal link between the collision and the
condition. The plaintiff cannot argue with the reality that she was not tested
soon after the collision and thus cannot positively affirm that she met the
fibromyalgia criteria within months of the collision. That said, no one, other
than perhaps the court, can say or naysay the proposition that she would have
met the criteria had she been tested at an earlier date than the first
tender/trigger point observations of Dr. Jaworksi in September 2007. On a
robust common sense approach … it is open for the court to make such a
finding based on the symptoms set out [in the paragraph above].

[106]     I agree
with the principles to which the plaintiff refers. However, even taking a
robust and pragmatic view of the evidence, which I have, I am not satisfied
that the plaintiff has proven on a balance of probabilities that the accident
caused the fibromyalgia and/or the widespread myofascial pain which Dr.
Jaworski or Dr. Frew observed in the plaintiff in 2008.

[107]     The
plaintiff bears the onus of demonstrating that the accident was the cause of
her current symptoms. It is insufficient to assert that she has met that onus by
suggesting that she could have had symptoms earlier, but she was not tested for
the fibromyalgia criteria at that time.

[108]      Applying
the principles of Athey and Resurfice, I cannot find that but for
the accident Ms. Warkentin would not have developed fibromyalgia and/or chronic
myofascial pain syndrome. I cannot find a substantial connection between the
plaintiff’s injuries and the defendant’s conduct. Even assuming, without
deciding, that the plaintiff could rely on the “material contribution test”, I would
not find that the accident materially contributed to the onset of this
widespread pain. There is too long a period between the accident and the onset
of the symptoms. Dr. Shuckett acknowledged that the connection is debatable in
any event, but suggested that 18 months between the accident and the onset of
fibromyalgia symptoms may demonstrate a connection. The plaintiff’s symptoms
were not observed until three years after the accident. Applying the common
sense test in Snell does not permit me to conclude that the accident and
the widespread pain and/or fibromyalgia are probably connected.

[109]     I conclude
that Ms. Warkentin suffered soft tissue injuries causing ongoing symptoms to
her neck and right shoulder. She also suffers from ongoing headaches which are
attributable to the injuries she sustained in the accident. There has been some
reduction in Ms. Warkentin’s ability to perform recreational activities;
however the injuries caused by the accident are not the source of any disruption
in her ability to perform her job with VIP Mazda or her consulting work for Dr.
Woo. Any such disruption is due to symptoms that were not caused by the
accident.

Damages

Non-Pecuniary Damages

[110]    
In Stapley v. Hejslet, 2006 BCCA 34, the court addressed the
underlying purpose of non-pecuniary damages at paras. 45 and 46:

[45]      Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for non-pecuniary
damage should not depend alone upon the seriousness of the injury but upon its
ability to ameliorate the condition of the victim considering his or her
particular situation. It therefore will not follow that in considering what
part of the maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury
Damages in Canada (1981), at p. 373). In dealing with an award of this
nature it will be impossible to develop a "tariff". An award will
vary in each case "to meet the specific circumstances of the individual
case" (Thornton at p. 284 of S.C.R.).

[Emphasis in original.]

[46]      The inexhaustive list of common factors cited in Boyd
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 (QL), 2005 BCCA 54).

[111]     As a
result of the plaintiff’s widespread myofascial pain, all of the factors which
ought to influence an award of non-pecuniary damages are present. However,
given my findings on which injuries were caused by the accident, I am guided by
the authorities provided by the defendant in regard to soft tissue injuries
similar to those from which the plaintiff suffers.

[112]     In Hauer
v. Clendenning, 2010 BCSC 366, the plaintiff was awarded non-pecuniary
damages of $50,000 in respect of her soft tissue injuries and pain in her neck,
shoulder and back which were ongoing at the date of trial, four years after the
accident. The plaintiff was able to sustain her pre-accident income level,
however, work activities and activities of daily living resulted in pain.

[113]     In
Driscoll v. Desharnais, 2009 BCSC 306, the plaintiff was awarded $55,000 as
non-pecuniary damages related to his suffering soft tissue injuries and pain in
his neck, shoulder and back with disturbed sleep. The plaintiff had reduced
capacity at work and was unable to participate in some of the activities that
he enjoyed. The injuries were likely to continue in the future.

[114]     In Ching
v. McCabe, 2006 BCSC 1589, the plaintiff was awarded $50,000 (reduced 50
percent due to contributory negligence) in respect of headaches, soft tissue injuries
and pain in the neck, back and shoulder, and mild stress which continued four
years after the accident and would likely continue in the future.

[115]     In all the
circumstances, I assess the plaintiff’s non-pecuniary damages as $50,000.

Past Income Loss

[116]     The
plaintiff has proven that she missed four days from work related to the
shoulder surgery, for which I find the defendant liable. Ms. Warkentin is
entitled to $1,592 relating to that loss of income. In respect of the time
which Ms. Warkentin missed for appointments, the evidence demonstrates that Ms.
Warkentin received a salary from her employers Dr. Woo and VIP Mazda. It was not
calculated on an hourly basis and was not reduced by the appointments which the
plaintiff attended. I therefore do not award any further amounts related to
past income loss.

Loss of Future Earning Capacity

[117]     As a
result of my conclusions concerning causation in this matter, the plaintiff has
not proven that she has a real and substantial possibility of income loss in
the future due to injuries that she sustained in the accident. She was able to
continue with her work until the fibromyalgia and/or chronic pain prevented her
from doing so; but, as I have found, those injuries are not attributable to the
accident.

[118]     The
plaintiff has not proven that the soft tissue injuries which I have found to be
caused by the accident will result in any loss of future earning capacity.

Future Care

[119]     I do not
find that the plaintiff will require any future care in respect of those
injuries which she sustained in the accident.

Special Damages

[120]     The
plaintiff has presented a special damages document brief which itemizes her
special damages over the period of time from the accident to the time of trial.
Some of those are properly claimed against the defendant as they relate to
injuries which I have found are attributable to the accident. Other special
expenses are related to the generalized pain condition of which the plaintiff
now complains. I am unable to determine which of the special damages are
attributable to which injuries.

[121]     I invite
the parties to review the plaintiff’s special damages and determine which are
attributable to the defendant’s liability and which are not, based on my
conclusions concerning causation. If the parties are unable to agree on the amount
of special damages, they have leave to apply and I will consider that head of
damage.

Summary

1.         Non-pecuniary
damages     $50,000

2.         Past income loss: $ 
1,592

Total                                                   $51,592

[122]     Special
damages are to be assessed.

Costs

[123]    
The parties have liberty to speak to costs.

“Gropper J.”