IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20110628

Docket: 44272

Registry:
Vernon

Between:

Jamie Rae Marchand

Plaintiff

And

Brent Pederson and
Chrysler Financial Services Canada Inc./

Services Financiers
Chrysler Canada Inc.

Defendants

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

[1]            
This is an assessment of damages arising out of a motor vehicle accident
that took place July 13, 2007, when the plaintiff was 21 years of age.

[2]            
The plaintiff was stopped at an intersection, waiting for traffic to
clear, when she was rear-ended by the defendant’s vehicle. The damage was
significant. The rear passenger portion of the back of the plaintiff’s vehicle
was crushed in right up to the passenger front door.

[3]            
The plaintiff was bleeding from her forehead where glass had been embedded.
She was taken by ambulance to Vernon Jubilee Hospital. Three long lacerations
to her head were sutured and there is some mild scarring which remains today
and which bothers her on occasion. She describes as hurting all over after the
accident and for the next several days she laid on her couch and was unable to
move. She had pain in her lower back, neck, between the shoulder blades, and
her ribs felt like they were burning. She had difficulty sleeping and she had nightmares
about driving.

[4]            
At the time of the accident she was a production worker in a slaughter
house which was a physically demanding job. She lost 11 days of work, but
returned to work on a graduated basis because she needed the money. She was
back working full-time approximately a month after the accident. The work
aggravated her pain and she missed numerous days due to her injuries. She
attended her family doctor, received chiropractic treatment, physiotherapy, and
massage therapy treatments. She also established an exercise program with the
assistance of a personal trainer.

[5]            
The pain from the accident settled into her neck and lower back. When
she returned home after work she would lie down; her housekeeping slipped and
she was less physically active than she had been prior to the accident.

[6]            
She did go on camping trips, quadding and four-by-fouring with friends
on a few occasions but those activities revolved more around drinking than
anything else. She participated in those activities, including a powder puff
demolition derby. She was not injured in the demolition derby and the alcohol
masked her pain when she was camping and four-by-fouring with friends.

[7]            
The plaintiff’s grandfather had an automotive repair and paint shop on
his property and she always had a dream of working in a similar type of
industry. In the fall of 2008 she received funding from her Native band office
and entered a three-year program with annual classroom instruction segments
followed by work experience. She successfully completed the first portion of
the program and received a certificate in automotive collision repairs/painting
and refinishing in October 2009 and had a grade point average of 89%. However,
the course work aggravated her neck and the heavier lifting and stretching aggravated
her other symptoms, more particularly, her lower back. She described how she
would lie down to ease the pain when no one was around to see her.

[8]            
The plaintiff then started to work for Northgate Auto. She, however,
ended up doing odd jobs and painting the shop’s interior. That work also
aggravated her back. The job ended around Christmas time with the business
shutting down without notice to her.

[9]            
The plaintiff found work in mid-January 2010 at Carstar Auto in Kelowna
where she was doing auto body painting, including masking and sanding. Again,
although she loved the job, it aggravated her symptoms. When she would return
home from work she was in significant pain. This is confirmed by her live-in
boyfriend, Luke Wandler. He did approximately 70% to 80% of the housework.

[10]        
The employment with Carstar ended in the late spring of 2010 when there
was not enough work and she was laid off. She continued to seek work in the
automotive industry but without success. 

[11]        
She then commenced working as a clerk at La Senza, a women’s store, but
in the fall of 2010 she moved with Mr. Wandler to Calgary because she was
not getting enough hours and thought there were more opportunities in Calgary.

[12]        
The plaintiff obtained short-term work of a few days as a waitress but
found that she could not tolerate the physical aspects of the work. She then
worked at Shoppers Drug Mart selling cosmetics but was terminated because she
wanted additional hours of work. She now works as a sales associate at La Senza
and also works at Booster Juice, sometimes working from 7 a.m. until 2 or 3
p.m. at Booster Juice and then working the evening shifts at La Senza. When she
returns home she has to lie down because of the pain. She is sometimes in tears
and her social life is minimal. During the last month she has had two massage
therapy treatments.

PRE-MOTOR VEHICLE ACCIDENT

[13]        
The plaintiff was raised by her grandmother who taught her to be
physically active and independent. She graduated from WLC Secondary School in
2004, received an achievement award in communication and worked part-time
during high school as a chamber maid.

[14]        
She was physically fit, attended a gym, enjoyed swimming, running,
hiking and snowboarding. Save and except for the gym, which she continues to
attend, she is restricted with respect to the other physical activities she
once enjoyed.

CREDIBILITY

[15]        
The defendant submits that to a great extent the plaintiff’s case rests
on her own credibility and refers to the often cited decision of McEachern
C.J.S.C. in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) at 399
where he cited his unreported decision of Butler v. Blaylock (7 October 1981),
Vancouver B781505, (B.C.S.C.) which states:

I am not stating any new principle when I say that the court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery period.

An injured person is entitled to
be fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.

[16]        
The plaintiff’s grandmother gave evidence that prior to the July 13
motor vehicle accident there were no limitations shown by her granddaughter,
but there was a significant difference after this motor vehicle accident. She
describes the plaintiff as physically active, enjoying exercising and swimming,
and happy-go-lucky until the accident. After the accident she found her granddaughter
to be not as bubbly. She cried a lot and wanted more compassion.

[17]        
Luke Wandler, the plaintiff’s boyfriend since July 2009, describes her
lying down because of pain, and her restricted activities and social life which
are consistent with the evidence of the plaintiff.

[18]        
The four experts whose evidence is before the Court, whose testing included
regimes designed to catch symptomatic amplification and inconsistent behaviour,
all found that the plaintiff demonstrated full effort and there was no
suggestion that she was anything but credible.

[19]        
I found the plaintiff to be not a very good historian when it came to
dates, she was sometimes vague and her extracurricular activities of quadding
and camping are somewhat inconsistent with her physical limitations. I am
satisfied that those activities were more youthful exuberance and poor judgment
fuelled by alcohol than anything else. I am satisfied that the plaintiff
answered the questions to the best of her ability, her evidence was not
inconsistent in any material way, and she was straightforward and honest. I
accept her evidence that she continues to suffer pain as a result of this motor
vehicle accident.

CAUSATION

[20]        
Dr. Apel, a specialist in physical medicine and rehabilitation,
filed a report July 16, 2009, which was the date of her examination of the
plaintiff. She found that the plaintiff’s condition improved and continued to
do so with treatment, mostly by physiotherapy, for about 1½ years. She then
states “any improvement plateaued about si[x] months ago”. Overall, she
perceives her condition to have improved to about 75% of her pre-accident level
of functioning and health.

[21]        
The chief complaints of the plaintiff at the time of the examination
were low back pain, upper back pain, wrist discomfort, neck pain, leg numbness,
headaches and chest pain.

[22]        
Dr. Apel concluded that:

 Based on the mechanism of injury
described and noted, and consistent with symptoms present[ed], it appears that
evidence of fibromyalgia condition, mild mechanical neck pain, thoracic outlet
syndrome, and possibly T6 and lumboscacral ligament enthesopathy are related to
the collision in question causationally. The difficulties not related to the
collision are carpal tunnel syndrome, hypermobility syndrome, past emotional
and psychological difficulties by history, past gastrointestinal problems by
history or Osgood-Schlatter condition suspicion.

[23]        
Dr. Apel recommends a well-rounded exercise program to emphasize
core strengthening, stretching and cardiovascular conditioning in respect to
the fibromyalgia. She also recommends stretching exercises for the neck pain,
and similar exercises including rowing, swimming and Pilates for the
hyper-mobility syndrome.

[24]        
Under vocational recommendations, she states that:

Overall difficulties make it
doubtful for Jamie to pursue and succeed in choosing a career as an
apprentice/mechanic with speciality in body shop and painting. Highly repetitive
activities, strenuous activities, potential use of high impact or vibrational
tools and limited engagement of ergonomic devices at her workplace are likely
to make her difficulties interfere with vocational success and, hence, her
employability, especially considering the significant work span in years. Jamie
is likely to succeed better in duties which are sedentary or light to medium or
“c” vocational categories, with avoidance of highly repetitive activities, especially
sustained sitting, sustained neck flexion, or highly repetitive/sustained neck
extension, sustained or repetitive upper extremities elevation at or above
shoulder level, sustained gripping, prolonged keyboarding, in favour of
activities with more variety, position changes availability, and appropriate
ergonomic setup.

[25]        
Under prognosis the doctor states:

Obviously the patient’s
prognosis is not set in stone. Her condition in large part affect functional
and vocational restrictions and limitations and her prognosis can be affected
by a number of factors including her conditioning and fitness levels, her
vocational satisfaction. Hence, I refer you to the recommendations offered
above.

It might be valuable for the
patient to pursue said recommendations and to be reevaluated, including electrodiagnostically,
in 12 – 18 months time. At that time, having had greater exposure to field work
as well as to the recommendations described above provided compliance and
resources are available, I would be in better shape to provide more factual
prognosis for long term management and symptoms.

[26]        
With respect to fibromyalgia Dr. Apel states:

She had fibromyalgia specific
tender points, some significantly painful; some moderately so, but all
consistently different than reaction received palpating nearby control points. Overall
the number of tender points, fibromyalgia specific, was 15/18. Jamie presented
with appropriate effort, absence of symptoms or pain magnification behaviour,
and she was very consistent in her responses to painful and nonpainful stimuli
comparison. She was not in aggravated distress upon examination completion.

[27]        
Lydia Phillips, an occupational therapist, prepared a report dated
January 16, 2010. From the functional capacity evaluation conducted by Ms. Phillips,
she determined that the plaintiff qualified for working in a light to medium
category. At page 6 of her report it is noted:

While her pain did not become “functionally
limiting” during the testing period, it should be noted that the activities done
during testing were all time limited (i.e. the work circuit, which included low
level and above shoulder reaching with weight, lasted 45 minutes total rather
than several hours). It is likely that continuation of such postures and
activities over a longer period of time would result in continued increases in
pain symptoms. At times, Ms. Marchand will likely experience functionally
limiting pain when she is required to work in positions of low or high reach
for long periods of time.

At page 8 Ms. Phillips states:

In analyzing FCE findings, it is
my opinion that Ms. Marchand will experience a significant increase in her
pain symptoms on a regular basis as she continues to work as an auto-body
painter.

At page 9
she states:

In
summary, while Ms. Marchand may be well-advised to consider other
professions that are not as physically demanding as auto-body painting, I am
not advising her to discontinue her work because she clearly loves the job. There
is a reasonable expectation that she will be able to manage such work as long
as she remains in good physical condition and her work environment is able to
accommodate her. That being said, she will likely experience functionally
limiting pain on occasion due to her work activities.

[28]        
Dr. Wallace, a psychological and vocational rehabilitation
consultant, was of the opinion that 17% of occupational profiles require medium
strength capacity and that 29% of occupational options require body posture
such as bending, stooping and kneeling.

[29]        
Dr. Wallace, with respect to the plaintiff’s interest in the auto
body business, states:

While I am cognisant of her
interest in this field, it is my opinion that her continued employment in the
more physically demanding areas places her at risk for early termination and
increased periods of unemployment.

In addition, individuals who
experience multiple jobs with them being let go because of inabilities to meet
the basic foundational skills leads over time to what has been described as a “crumbling
resume”. Quite simply, this type of work history raises a “red flag” to prospective
employers making it even more difficult for individuals to even obtain
employment in their trade.

Dr. Wallace recommends that the plaintiff consider
a different career path.

[30]        
The defendant filed a medical/legal report by Dr. Nowak, a
certified physiatrist. Dr. Nowak was of the view that the plaintiff had “a
history of chronic pain in the lower thoracic and lumbar spine … that she has
complained [of] since a MVA on April 7, 2006”.

[31]        
Further on he states:

Since March 14, 2007, Ms. Marchand
was treated by Dr. Kinakin on 24 occasions, until the end of May. As well,
her neck pain to the right side is documented in Dr. Kinakin’s records.

[32]        
Dr. Nowak concludes:

It is
possible that the lower back pain, as well as the neck stiffness that Ms. Marchand
reported after her accident on July 13, 2007, might be an aggravation of her
pre-existing condition.

[33]        
In answer to the question of whether the motor vehicle accident caused
or contributed to the injury complained of Dr. Nowak states:

It might be, that the accident in
question, might have contributed temporarily to her pre-existing and chronic
low back pain and or neck pain.

[34]        
Dr. Nowak also expressed an opinion about whether Ms. Marchand’s
injuries may have occurred at some point even in the absence of the motor
vehicle accident:

 It is my considered opinion that
all musculoskeletal pains that Ms. Marchand might experience at the
present time would have occurred even absent the accidents that she was involved
in.

[35]        
With respect to fibromyalgia, Dr. Nowak states:

Ms. Marchand reported pain
on pressure at low-intensity levels (<= 4 kg) at the 2^nd
costochondral junction bilaterally, at the upper outer quadrant of the buttock,
at both lateral elbows (2 cm distal to the epicondyle) bilaterally, at the
medial fat pads on both knees proximal to the articular line, as [well] as the
over the right supraspinatus muscle at the origin of the muscle (9 tender
points in total).

[36]        
On cross-examination Dr. Nowak agreed that there are 11 tender
points required for a diagnosis of fibromyalgia and since Ms. Marchand
only had 9 she did not qualify for that diagnosis. He agreed however that she
had pain in all four quadrants and that she reported pain that he assumed was
real.

[37]        
The doctor agreed that fibromyalgia can wax and wane and he agreed that
it is possible that on one day there may be 9 trigger points and on another day
there could be 12. He agreed that that would not be surprising. He also agreed
that fibromyalgia is more frequent in women than men and more frequent when an
individual has a history of psychological upset or stress. He agreed that
in his experience when there is constant pain, anxiety and gender (female), that
is ripe ground for fibromyalgia. He agreed that given her pre-existing
emotional distress that she was at greater risk to experience amplified pain.

[38]        
The plaintiff was involved in a prior motor vehicle accident on April 7,
2006 and Dr. Nowak was of the view that she had non-specific mechanical
pain in the back. That is mechanical pain that comes from movement. In
non-specific pains it is difficult to pinpoint because it is in such areas as
the muscles or the distal joints. He describes chronic pain as lasting longer
than expected. He was of the view that chronic pain does not mean it is pain
forever and chronic pain can be treated. He assumed the plaintiff had chronic
back pain up to the time of the motor vehicle accident of July 13, 2007. He
said he assumed that the lower back pain was ongoing given the fact that she
attended at chiropractic treatment with Dr. Kinakin from March 2007 until
mid-June 2007.

[39]        
He acknowledged however that in the first part of his report he referred
to the chiropractic treatments stopping at the end of May 2007. He also
acknowledged that the last appointment the plaintiff had for chiropractic
treatment was June 3, 2007.

[40]        
He was of the view that the pain was getting worse and that, he
acknowledged, was from the intake report which he acknowledged was at the time
of her first treatment on March 14, 2007. He also assumed that the intake
report showed that the pain was remaining constant but acknowledged that that
was incorrect; that he misread the document and what is contained in the
document is that the pain is coming and going.

[41]        
When he was asked to assume that the chiropractic treatment ended and
she did not have pain prior to the second accident, would that mean that the
pain was not chronic?  The doctor refused to answer the hypothetical question
when it was initially put to him.

[42]        
Dr. Nowak was of the view that he did not consider the plaintiff
suffered any injuries from the second accident. When he was shown Exhibit 2, the
pictures of  the plaintiff’s car, and asked if he would expect the occupants to
be injured, he agreed that he would. When asked if he would modify his opinion
he stated no.

[43]        
When asked if he would defer to Ms. Phillips’ opinion about the
plaintiff’s limitations he said that he accepted Ms. Phillips’ report. He
later on said that he was not in a position to accept her report.

[44]        
I find Dr. Nowak’s evidence to be problematic. He initially refuses
to answer a question based on assumptions. It is clear that he is wrong in his
reading of the intake report of Dr. Kinakin where he assumed that the pain
was remaining constant. He is not accurate in the date of the last chiropractic
treatment. I am of the view that Dr. Nowak is more of an advocate than an
expert and I give very little weight to his evidence. I prefer the evidence of Dr. Apel
when it comes to the diagnosis of fibromyalgia and the other conclusions
reached by Dr. Apel. I am satisfied that the plaintiff may have improved
somewhat from her last visit with Dr. Apel but I am satisfied that she
continues to suffer a long term disability in respect to the fibromyalgia in
the lower and upper back. I accept Ms. Phillips’ functional capacity
evaluation and the limitations that the plaintiff has in respect to job
opportunities because of her physical restrictions. I am also satisfied that
the report of Dr. Wallace is fair and balanced and should be given a great
deal of weight. I accept the plaintiff’s evidence that she stopped seeing her
chiropractor, Dr. Kinakin, because she no longer had pain, but the
chiropractor asked her to continue to see him because he was of the view that
she had subluxation, which is poor posture so he was giving her treatment for
that. She confirmed that she did not have any pain when she stopped seeing Dr. Kinakin.
I accept her evidence.

NON-PECUNIARY DAMAGES

[45]        
The defendant says that the range of non-pecuniary damages should be
between $30,000 and $35,000 and when adjusted for inflation is most likely
closer to $40,000. The plaintiff says that the range of damages is between $60,000
and $90,000.

[46]        
The function of non-pecuniary damages is to compensate the plaintiff for
pain, suffering and loss of enjoyment of life and loss of amenities. Taking
into account the relatively young age of the plaintiff (she is now 24 years
old), the chronic nature of her injuries, the severity and duration of her pain,
her disabilities, her emotional suffering and loss of her social and marital
life, I am of the view that a proper award would be in the amount of $65,000.

LOSS OF EARNING CAPACITY

[47]        
The test for a claimant under this head of damages was set out in Steward
v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152. At para. 17, Mr. Justice
Donald wrote:

The claimant bears the onus to
prove at trial a substantial possibility of a future event leading to an income
loss, and the court must then award compensation on an estimation of the chance
that the event will occur…

[48]        
Considering this head of damages then, the court must determine the
extent of the future loss of income earning capacity by taking into account all
substantial possibilities and assessing the likelihood of their occurrence
based on the evidence.

[49]        
There are four considerations which are often cited in determining the
value of the loss as set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.), [1985] B.C.J. No. 31 at para. 8:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

[50]        
I am satisfied that the plaintiff meets all four criteria as set out in Brown
v. Golaiy. I am satisfied that she has been willing and able to work hard despite
her ongoing problems.

[51]        
The task for the Court is clear in that “the court is to assess damages
not to calculate them on some mathematical formula”: Mulholland (Guardian ad
litem of) v. Riley Estate (1995) 12 B.C.L.R. (3d) 248 (C.A.) at para. 27.

[52]        
But for the accident I am satisfied that the plaintiff would have been
successful in becoming qualified in the automotive repair and painting business. She
had a strong performance in the scholastical portion of her apprenticeship
training, she has a history of a strong work ethic and, according to Robert
Carson of Associated Economic Consultants Ltd., she would earn $51,320 per year
in British Columbia in the motor vehicle body repair industry, or in Alberta
would earn $61,270 per year.

[53]        
Assuming that she would have been able to complete her degree
qualifications by 2013 and earning $51,000 per year, that would translate into
a present value of $1,259,000. Taking into consideration risk factors such as
unemployment, injuries and reduced hours, that should reduce the amount by 20%.
When taking into account choice variables of leaving the labour force, working
part-time, having children, that should translate into a discount of 30%,
leaving a present value of $705,064.

[54]        
It is my view that because the plaintiff had difficulty in obtaining
work that would qualify her on the apprenticeship program after her first
semester, and because of the risky nature of the automotive repair business,
that sum must be further discounted.

[55]        
I am satisfied that the plaintiff, because she is highly motivated, will
retrain to the fields that she showed interest in, drafting and special
education for children. However, there is no evidence as to the actual value of
expected income from those jobs.

[56]        
The plaintiff says that loss of capacity/loss of opportunity should be
assessed in the $100,000 to $150,000 range. The defendant says there should be
no award based on Dr. Nowak’s report. I am satisfied that the loss of
capacity/loss of opportunity for the plaintiff is in the area of $140,000.

COST OF CARE

[57]        
It is recommended by Ms. Phillips that the plaintiff be provided
with a vacuum cleaner, snow blower, and some other mechanical assistance. I am
not satisfied that the plaintiff’s claim is made out with those matters because
they have been performed at the present time by her boyfriend, she has no yard
to mow, and there is snow removal provided by the condominium corporation. The
plaintiff has, prior to the motor vehicle accident, worked out at a gym so that
is not something that she has had to do because of the accident. I am satisfied
that vocational counselling of $1,000 and tuition for upgrading at $10,000 is
appropriate and I award the sum of $11,000.

SPECIAL DAMAGES

[58]        
There are special damages for chiropractic treatment, physiotherapy and
massage therapy, and exercise equipment. They appear to be reasonable and I
award the sum of $1,500.

LOSS OF INCOME TO DATE

[59]        
The plaintiff, at the time of the accident, was earning $18.40 per hour.
She has lost income of 11 days plus working part-time on a graduated scale. Her
present income is of minimum wage and, doing the best I can with the limited
available information, I award loss of past wages in the amount of $8,000.

[60]        
I am satisfied the plaintiff is entitled to her costs.

The
Honourable Mr. Justice F.W. Cole