IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111223

Docket: 43865

Registry:
Vernon

Between:

Carla Lisanne
Wilkinson

Plaintiff

And

Candy Lynn
Whitlock and Gary Whitlock

Defendants

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The plaintiff was injured in a motor vehicle accident on September 10,
2007. She seeks compensation for her injuries. Both liability and damages are
in dispute.

Liability

[2]            
The accident occurred at the intersection of 32nd Street and 32nd Avenue
in downtown Vernon. 32nd Street runs north and south at the point it intersects
32nd Avenue; 32nd Avenue generally tracks east and west. The intersection is
controlled by traffic lights.

[3]            
The plaintiff works at the Vernon Jubilee Hospital. The Vernon Jubilee
Hospital is on 32nd Street, south of the intersection with 32nd Avenue. When
the accident happened the plaintiff was alone in her vehicle, and travelling
southbound on 32nd Street. She was en route to the hospital where she was
scheduled to begin a shift at 10 p.m. She testified that as she approached the
intersection of 32nd Avenue she saw the traffic light for southbound traffic
turn green. It was still green when she reached the intersection and thus she
proceeded through without slowing down. She testified that she first saw the
defendant, Candy Lynn Whitlock, who was westbound on 32nd Avenue, a split
second before the two motor vehicles collided. In that split second she steered
to the right, but was unable to avoid the collision. The impact was
significant. The plaintiff’s Volkswagen Jetta was damaged beyond economic
repair. The defendants’ 2003 Pontiac Grand Prix sustained approximately $2,500
in damage.

[4]            
The defendant had dropped off her husband at the bus depot just before
the accident occurred. She had her 2-year-old daughter with her. While she was
at the bus depot she noticed an elderly woman who appeared to need assistance.
She kindly offered the woman a ride. Mrs. Whitlock left the bus depot and
drove west on 32nd Avenue en route to the elderly woman’s home. She testified
that as she approached the intersection of 32nd Street, the light for westbound
traffic on 32nd Avenue was red, and as a result she stopped. She testified that
she was the first car in line at the intersection. When the light turned green
she proceeded cautiously. Although she looked to her right, she did not see the
plaintiff approaching. She first became aware of the plaintiff’s vehicle when
the two vehicles collided. She testified that she was 100 percent sure that the
light turned green for traffic travelling in her direction before she proceeded
into the intersection. Mrs. Whitlock suffered minor injuries but was taken
to the hospital by ambulance as a precaution. Fortunately, neither her child nor
her elderly passenger were injured.

[5]            
The only independent witness to testify about the accident was Lisa
Nickoli. Mrs. Whitlock’s elderly passenger was not called, and by
agreement between counsel I am to take nothing from that fact. Ms. Nickoli
was travelling westbound on 32nd Avenue, some distance behind the defendant.
She testified that there were two motor vehicles stopped for a red light at the
intersection of 32nd Avenue and 32nd Street. She saw the first of those motor
vehicles turn right, and then saw the defendant’s motor vehicle proceed into
the intersection against the red light. She saw the plaintiff’s southbound
vehicle on 32nd Street and saw the collision. Ms. Nickoli stopped at the
scene of the accident and gave assistance to the parties while awaiting the
arrival of the Police and ambulance.

[6]            
I am satisfied that the plaintiff, the defendant and Ms. Nickoli
described the accident as they now recall it. The conflict in their accounts
arises from an honest mistake and nothing else.

[7]            
I am satisfied that the motor vehicle accident happened as a result of
the defendant proceeding through the intersection against a red light. I reach
this conclusion for several reasons. First, I accept the evidence of Ms. Nickoli.
She is an entirely independent witness and had an unobstructed view of the
events as they unfolded. Further, she said that as she saw the defendant begin
to move into the intersection she thought to herself there might be an
accident. She thought that because she knew the light was red. That is the kind
of detail which adds appreciably to the reliability of her account. I recognize
that Ms. Nickoli was significantly in error in the estimates of distance
that she gave about other aspects of the accident scene. Those errors do not,
however, detract from the reliability of her account more generally.

[8]            
Second, there are other circumstances which may explain Mrs. Whitlock’s
decision to proceed into the intersection against a red light. She was chatting
with the elderly woman that she had just met. More significantly, there was a
vehicle in front of her that turned right. It may be that Mrs. Whitlock
assumed that that vehicle proceeded because the light had changed.

[9]            
Finally, while, for reasons I will address below, the plaintiff’s
evidence is not reliable in all respects, I am satisfied it is reliable in
relation to the circumstances of the accident. Mrs. Whitlock’s account, on
the other hand, reveals that she was either not paying close attention or was
mistaken in one indisputable way. She said she looked to her right before
entering the intersection. She testified she did not see any southbound
vehicles on 32nd Street. There is a parking lot on the northeast corner of the
intersection, and thus Mrs. Whitlock’s view of the southbound traffic on 32nd
Street was unobstructed. The plaintiff was there to be seen; Mrs. Whitlock
simply did not see her.

[10]        
For all of these reasons I am satisfied that the light for southbound
traffic on 32nd Street was green and the plaintiff was entitled to, and did,
proceed through the intersection in a reasonable manner. I am satisfied that
the defendant proceeded through the intersection against a red light. It follows
that the defendant is entirely at fault for the collision.

Damages

[11]        
The plaintiff’s ongoing complaints relate to her back and her hip. I am
satisfied that her back problems are due to the motor vehicle accident. It was
conceded at the end of the trial that the plaintiff’s hip problems are not causally
related to the accident. I would have reached that conclusion on the evidence
had the matter not been conceded.

[12]        
There are three broad issues relating to the plaintiff’s injuries. The
first is the extent of her back problems and the degree to which those
problems, as opposed to her hip problems, limit her functioning and cause her
pain and suffering. The second is whether Ms. Wilkinson acted reasonably
in mitigating the effects of her injuries. The third issue is whether the
plaintiff has proven any future loss of earning capacity, and if so the extent
of that loss. There are a number of lesser issues which I will address in
the course of dealing with the three broad issues just noted.

[13]        
Superimposed on all of the foregoing is the issue of the plaintiff’s credibility
and/or her reliability. I will deal with that matter first.

Credibility

[14]        
Counsel for the defendant points to several aspects of the plaintiff’s
evidence which, he argues, should cause one to doubt her reliability. First, he
argues that she was generally evasive and, to a degree, argumentative on cross-examination.
Second, he points to a significant discrepancy between her account of the back
problems she experienced prior to this motor vehicle accident and the picture
of those problems that emerges from the clinical records. Third, he argues that
the plaintiff’s description of the difficulty that her hip causes her does not
accord with her presentation as revealed in surreptitiously recorded videotape
of her going about her day-to-day activities.

[15]        
Mr. Moffat argues that the manner in which Ms. Wilkinson gave
her evidence is due to her understandable anxiety and perhaps a consequence of
her somewhat difficult life, and is not a reason to doubt her credibility or
reliability. He argues that on close examination the videotape evidence is
consistent with and corroborative of her testimony. Further, and in any event,
he argues that her account is supported by the evidence of her former
boyfriend, David Baines.

[16]        
There is reason to approach the plaintiff’s evidence with caution. She
was defensive and evasive in cross-examination. I accept that anxiety may
explain her defensive posture, but it does not account for her tendency not to
answer questions directly. I do not, however, take much from these
circumstances.

[17]        
As to the videotape evidence, it is of some assistance. The plaintiff
was videotaped in January and February of 2008, May of 2009, and June and
October of 2010. The plaintiff’s left hip and groin became, on her description,
excruciatingly painful for no apparent reason when she was shopping. Although Ms. Wilkinson
could not recall the date of this event, I suspect it was likely in the fall of
2008. Ms. Wilkinson testified that although the pain in her hip or groin
varies, it often causes her “to waddle” when she walks as opposed to walking
with a normal gait. On examination for discovery she agreed that it caused her to
waddle most of the time. She said that it was a particular problem when she
walked after driving.

[18]        
The January and February 2008 videotape evidence is of little assistance
– the recordings are brief and do not show the plaintiff walking to any extent.
The May 2009 videotape evidence is much more extensive. On May 19, 2009 the
plaintiff was at a gas station purchasing flowers. To my eye, her gait appeared
normal. On June 14, 2009 the plaintiff was videotaped while at a garden centre,
and again her gait appeared normal. A year later, on June 15, 2010, there is videotape
of her walking. There is no apparent limp but she does appear stiff and careful
in the way she moves. On June 17, 2010 Ms. Wilkinson was videotaped
walking to her car with a grocery cart full of groceries. She was captured
loading the groceries into the hatchback of her vehicle. She did all of that without
apparent limitation. On June 19 of that year she purchased a three or four foot
tall house plant which she loaded and unloaded from her car, again without
apparent limitation. Finally, there is a lengthy videotape of her on June 19,
2010 at a garden centre with Mr. Bains and her daughter. She is captured
squatting down, standing up, and walking about the store without noticeable
limitation. In summary, the videotape reveals some minor stiffness or limitation
on some occasions. There are also occasions when she appeared to have little or
no visible limitation. Generally, the impression left by the videotape evidence
is of an individual less limited than Ms. Wilkinson’s evidence at trial
and on discovery would lead one to conclude.

[19]        
The final point raised by Mr. Braun is the discrepancy between the
accounts given by the plaintiff at trial and to some doctors she saw after the
accident of her pre-accident back problems and the picture that emerges of those
problems from the clinical records that are in evidence. Dr. Shawn McCann
is a specialist in physical medicine and rehabilitation. He examined the
plaintiff at the request of her lawyer on April 14, 2009. In his report dated
that day he wrote:

On direct questing [sic] of April
14, 2009, the [plaintiff] reports the only real previous lower back pain that
she had in the past was back pain that she had during delivery of her child,
who is currently 13 years old. This pain lasted approximately 3-6 months and
did not become a problem over time.

The child that the plaintiff was referring to was a daughter
born in October 1995.

[20]        
Dr. Curtis Latham became the plaintiff’s general practitioner in
December 1996 and remained her primary doctor until his retirement in 2008. The
clinical records of Ms. Wilkinson’s physician in 1995 show that she was
experiencing mid thoracic pain in November of that year. She was referred to
physiotherapy for treatment. In May 1997 she saw Dr. Latham complaining of
moderate back pain in the lumbar area, a pain that she told him she had been
experiencing since her pregnancy in 1995. She said the pain seemed to be
aggravated by stress. He prescribed an anti-inflammatory and anti-anxiety
medication. Ms. Wilkinson was seen by Dr. Latham in June when she
again complained of moderate low back pain. She said the pain was aggravated by
lifting her toddler. On September 25, 1997 she was again seen by Dr. Latham
and again her chief complaint was of pain in the lumbar area of her back. She
told her doctor that she was experiencing spasms on both sides of her lower
back. He prescribed a muscle relaxant and an anti-inflammatory and referred her
to physiotherapy. Fourteen months later, in November 1997, she saw Dr. Latham
and complained of moderate back pain that she said seemed to be caused by long
periods of sitting and was aggravated by carrying her toddler. On cross-examination
Ms. Wilkinson acknowledged that she did experience back pain in 1997 but
said that whatever the nature of her back pain it was not such that it caused
her any difficulty lifting her daughter. According to Dr. Latham in May
2000 she again complained of moderate low back pain with muscle spasms. Dr. Latham
referred her to massage therapy. By June 2000 Ms. Wilkinson reported that
her back spasms had improved with the massage therapy. In September 2000 Dr. Latham
noted she was “healing well” but still had some pain. He recommended a milder
over the counter anti-inflammatory and again referred her to the massage
therapist for supervised exercise. Finally, in November 2000 she reported some
ongoing back ache which she thought was aggravated when she lifted her children.
Ultimately Ms. Wilkinson agreed that she had experienced back pain prior
to the motor vehicle accident for significantly longer than she had told Dr. McCann.

[21]        
I do not think that Ms. Wilkinson was trying to deliberately
mislead the court or Dr. McCann; rather I think she described her current
and past medical issues as she now believes them to be or to have been. What
all these matters show however is that Ms. Wilkinson is not a particularly
reliable historian; that she understated her prior low back problems and to a
degree overstated her post-motor vehicle accident limitations.

The Plaintiff’s Pre-accident Health

[22]        
The plaintiff is a 44-year-old single mother of three children. Her
26-year-old son lives independently, and her 12 and 16 year-old daughters live
primarily with her in Vernon, although they also spend significant time with
their fathers. There is no evidence of the plaintiff’s education and work
history prior to 2003, but I infer she completed high school and worked at
least periodically as her children were growing up. In 2002 she returned to
school, and by the end of 2003 had completed the training necessary to be a
blood technician. A blood technician, at least in the hospital context, is a
person who takes blood samples from patients and has them analyzed on orders
from physicians. In November 2003 Ms. Wilkinson began work as a blood
technician at the Vernon Jubilee Hospital. She is employed there and in that
capacity today.

[23]        
Before turning to my findings relating to the injuries Ms. Wilkinson
suffered, I note that she was involved in another motor vehicle accident in
2005. It was a minor rear end collision. Some months after that accident she
experienced some numbness in the fingers of her right hand. She saw Dr. Latham
about that and he thought the numbness might be attributable to the earlier
accident. Whatever the cause of the numbness Ms. Wilkinson received
physiotherapy and that treatment was successful, in as much as the symptoms
subsided. She has not had any difficulties of that kind since. I am satisfied
that the 2005 motor vehicle accident is of no significance in relation to the
injuries Ms. Wilkinson suffered in the September 2007 accident or her
recovery from those injuries.

[24]        
As noted above Ms. Wilkinson had back pain following the birth of
her second child in 1995. She had her third child in or about 1999. She did not
experience back pain associated with that pregnancy or in its aftermath. By the
time of the accident, her back had been asymptomatic for over seven years.
During those seven years she completed her education and training as a blood
technician and was working fulltime at the hospital in that capacity. The job
involves a considerable amount of forward bending at the waist as well as a lot
of walking between wards and the laboratory. During the winters she exercised
at a gym three or four times a week. She enjoyed cross-country skiing, fishing,
and in the spring of 2006 she joined a women’s softball team.

[25]        
In February 2007, not long after she began a relationship with Mr. Harrison,
Ms. Wilkinson purchased a house in Vernon. The house required extensive
renovations as well as landscaping and the plan was that she and Mr. Harrison
would do that work together. They added a room to the back of the house,
extensively renovated the kitchen and bathrooms, and rebuilt the stairwells. As
for the landscaping, they had three truck loads of various sizes of rocks
delivered, they removed a shed, planned and installed a water feature,
constructed raised garden beds, replaced the decking on the deck and levelled
an area for parking a recreational vehicle she had purchased. Ms. Wilkinson’s
role in those efforts was significant and involved a lot of physical exertion,
something she was able to do without difficulty. In fact she enjoyed the work. They
were in the midst of that work when the accident happened.

[26]        
In summary, Ms. Wilkinson was in good health prior to the accident.
The back problems which arose following the birth of her second child had long
since resolved. She was a reasonably active and healthy working mother.

The Plaintiff’s Injuries and Prognosis

[27]        
Ms. Wilkinson was wearing her seat belt at the time of the accident.
The force of the impact caused her to bump her head against the driver’s side
window. She was immobilized at the scene by ambulance personnel and taken to
the hospital where x-rays were taken of her back and she was discharged that
same night.

[28]        
In the immediate aftermath of the collision her knees were sore as a
result hitting the console; she had a bump on her head which was also sore; her
neck was stiff such that initially she could not turn her head; she had
frequent headaches; and her back was sore from her hips to her neck. As a
result of her injuries Ms. Wilkinson was off work until early January
2008.

[29]        
Three days after the accident Ms. Wilkinson saw a locum in Dr. Latham’s
office. The locum found her to have normal range of motion in the cervical and
dorsal spine, with tenderness and muscle spasms in her upper body. The locum
prescribed naproxen (an anti-inflammatory) and Flexeril (a muscle relaxant).
She was saw Dr. Latham on September 19. He noted “marked stiffness on the
left side and upper back and shoulders, as well as soreness in both knees”. He
also found that her range of motion in her neck and cervical spine was
decreasing. He renewed the naproxen prescription and referred her to Sharon
Clarke, the physiotherapist. Ms. Wilkinson had received treatment from Ms. Clarke
in relation to the problems she had in the mid 1990s.

[30]        
On October 9, 2007 she saw Dr. Latham again. He noted yet a further
decline in the range of motion in her neck and lumbar spine. He recommended
that she remain off work for four months, that she continue with physiotherapy,
and that she consider joining a gym to aid in her rehabilitation. During the
remainder of October Dr. Latham noted “modest improvement”. He ordered
x-rays of her spine and they were taken on October 23. Those images showed mild
degenerative changes in her cervical spine but were otherwise unremarkable. Dr. Latham
saw Ms. Wilkinson on January 15, 2008 after she had returned to work. He
found that she was still experiencing pain with “marked tenderness” at the T11
and T12 vertrabal joints. Given the tenderness and the “postural sagging” he
noted in that area, Dr. Latham “urged” the plaintiff to begin a gym
exercise program and recommended that she loose a few pounds to ease the strain
on her back.

[31]        
Ms. Clarke was a careful witness. She first saw Ms. Wilkinson
in relation to this accident on September 19. She saw her regularly until
January 16, 2008. Like Dr. Latham, Ms. Clarke found that Ms. Wilkinson’s
range of motion in her neck was reduced on all three planes; her range of
motion in her back was at about 50 percent of normal in all directions. Her
back pain was primarily in the area of the junction between the sacral and
lumbar spine. Ms. Clarke’s findings were consistent with a diagnosis of
grade II whiplash. By November Ms. Wilkinson was “gradually improving”. Her
range of motion was increasing and her pain was decreasing as was her level of
disability – the latter two conclusions rest in part on Ms. Clarke’s
interview and in part on Ms. Wilkinson’s scores on standardized
questionnaires. By December Ms. Wilkinson’s neck pain had largely subsided
but her back remained painful and limiting, particularly at the T11 and T12
level. Ms. Clarke, in addition to other therapy, began taping Ms. Wilkinson’s
back at the T11/T12 level – that is she held the thoracic joints closed and
taped Ms. Wilkinson’s body such that the joints remained closed. This
provided Ms. Wilkinson with relief from some of the increased pain she was
then experiencing. On January 3, 2008 Ms. Clarke advised Ms. Wilkinson
to return to an exercise regime. She said to begin with aerobic activity and
then progress to weights. Ms. Clarke last saw Ms. Wilkinson on
January 16, 2008. She had an appointment for the next week but cancelled it. She
explained that she thought she would be able to receive therapy at the hospital
given that she had returned to work. As it turned out she either could not or
did not receive physiotherapy through her employment; neither did she return to
Ms. Clarke.

[32]        
Over the fall and winter of 2007, while Ms. Wilkinson was off work,
she continued to assist with the renovations albeit in a reduced way. The
account Ms. Wilkinson gave Ms. Clarke as to the degree to which she
was able to assist in the ongoing renovations is somewhat at odds with her
current recollection. What she told Ms. Clarke suggests that her abilities
were somewhat greater than Ms. Wilkinson now recalls them. I prefer Ms. Clarke’s
account. Ms. Wilkinson told her in October that she assisted with the
installation of a vapour barrier and insulation in the roof of her basement.
She also said that she had been assisting with drywall that fall. She helped
with the mudding and taping. She also helped to remove a shiplap wall and did
clean up. Although by the end of 2007 Ms. Wilkinson had recovered her
range of motion and her symptoms had improved, she remained physically limited
and in some pain as a result of her low back injury.

[33]        
Ms. Wilkinson testified that she returned to work in spite of her
physical condition because the alternative was to receive long term disability
benefits and those benefits would not have been enough to allow her to keep her
home. On returning to work she was offered a short term position at a downtown
laboratory. She accepted it because she thought the work would be less
physically taxing. It is convenient at this juncture to comment on Ms. Wilkinson’s
job. When working at the hospital, her job involves the various tasks associated
with drawing blood samples from patients and analyzing those samples in the
laboratory. She is frequently required to walk from the laboratory to the
various wards to draw blood. The act of drawing blood usually involves bending
over a patient, locating a suitable blood vessel, inserting a needle and
drawing the blood. How long Ms. Wilkinson might spend in the forward
bending posture necessary to draw blood varies from as little as 30 seconds in
the case of individuals whose blood vessels are easily identified and accessed,
to 10 or 15 minutes in the case of individuals, such as intravenous drug
addicts, whose blood vessels are notoriously difficult to access. Other
tasks to which Ms. Wilkinson might be assigned include working at a bench
in the laboratory packaging samples that are being sent to other facilities for
testing. Yet another is placing specimens in a petri dish which is necessary
for some tests. Both of these jobs involve some forward bending and sitting for
long periods. Although Ms. Wilkinson took her regular turn when assigned
to these tasks prior to the accident, she has avoided them when possible since.
The position she took at the downtown laboratory in January 2008 also involved
drawing blood except those patients were sitting in chairs during the
procedure, as opposed to laying on a gurney or in a bed. Ms. Wilkinson
found working in a generally fixed posture that involved forward bending very
painful. As a result she returned to her hospital position within two weeks.

[34]        
During the first six months of 2008, Ms. Wilkinson said that she
was able to do some chores at home, such as raking leaves and shovelling snow,
but that when she exerted herself in that way she suffered. She said that her
situation has remained more or less static in the three years since. She still
has reasonably constant pain in her mid and low back which is aggravated if she
sits for a long period or exerts herself. Notwithstanding this pain she does
not use pain or anti-inflammatory prescription medication to any appreciable
extent. She is now able to do most of the daily chores associated with her home
although she takes longer to do them and she often experiences increased back
pain as a result. The heavier chores remain beyond her ability.

[35]        
Her headaches were daily in the first several months. They diminished in
frequency and intensity over the next three years. She had not had any headaches
in the six months prior to the trial.

[36]        
In early 2008 Ms. Wilkinson and Mr. Harrison had an acrimonious
breakup. David Baines was acquainted with the plaintiff through mutual friends.
In March 2008 he and the plaintiff began dating. In June he moved into her
house. They lived together for the next two years and then separated in the
summer of 2010. They got back together in the fall of that year and remained
together until they finally separated in the spring of 2011. Mr. Baines
still cares for Ms. Wilkinson and holds out some hope that they will be
able to overcome their differences and get back together. Mr. Brun argues
that I should discount his evidence because of his obvious bias. While I
appreciate the risk that Mr. Baines may have, if only subconsciously,
tailored his evidence for ulterior purposes, I do not think that occurred. He
struck me as an entirely honest witness. He was overly solicitous of Ms. Wilkinson,
both while they were together and as he gave his evidence, and that is relevant
to assessing his evidence about her abilities and disabilities, but I am
satisfied he was truthful and otherwise objective.

[37]        
According to Mr. Baines Ms. Wilkinson enjoyed doing yard work
and while they were together, to his observation, she did as much as she could
often to the point of causing pain during the following days. He observed her
to walk with a limp and to arch her back as she walked in what he thought was
an effort to relieve her pain. She was unable to start her old gas powered lawn
mower, if it failed to start on the initial pull (something it rarely did). She
weeded the garden but did so on her knees as opposed to bending over. He did
most of the snow shovelling in the winter. Again she helped but as with other
similar chores, she was in pain afterwards. As for vacuuming, Mr. Baines
did the majority of it and when Ms. Wilkinson did it he would carry the
vacuum cleaner up and down the stairs. Overall, in Mr. Baines’ view, Ms. Wilkinson’s
apparent pain increased over the three years of their relationship. He did not
observe her to use much in the way of medication.

[38]        
One area in which Mr. Baines noted a decline in Ms. Wilkinson’s
physical ability is in relation to her gait. Specifically, she developed a limp
which increased over time to his observation. The limp is associated with her
hip pain which likely arose in the fall of 2008. To the degree that Mr. Baines
noted an increase in Ms. Wilkinson’s pain and a decrease in her mobility,
I am satisfied that was due to her hip difficulties.

[39]        
As noted, Mr. Moffat conceded that the plaintiff’s hip problem was
not directly caused by the motor vehicle accident. As I understand his position
however, it is that her gait and/or hip problems may be secondary to her back
injury or that her gait problems may be more pronounced due to her low back
injury. I am not satisfied on a balance of probabilities that either of these
propositions is borne out on the evidence. Indeed there is simply no medical
evidence on either point. It does not follow however that all of Ms. Wilkinson’s
physical difficulties are now a consequence of the problem she experiences with
her left hip. Her account, and the accounts of others, is that the issues are
quite distinct.

[40]        
Dr. Bester became Ms. Wilkinson’s general practitioner
following Dr. Latham’s retirement. He first saw her on September 24, 2009.
Over the next 18 months he saw her several times. He detailed his findings in
reports of October 28, 2010 and May 27, 2011. Dr. Bester impressed me as a
careful doctor and a careful and balanced witness. He was cross examined
on whether he looked for, and if so, whether he saw behaviour on the part of Ms. Wilkinson
that was either consistent or inconsistent with the narrative account she
provided. He was neither particularly credulous nor overly suspicious. The symptoms
he observed, particularly when he thought Ms. Wilkinson was unaware she
was being observed, corresponded with that which she reported to him.

[41]        
Initially, Dr. Bester’s focus was on Ms. Wilkinson complaints regarding
her left hip. It is clear that this problem dominated both Ms. Wilkinson’s
presentation and Dr. Bester’s attention. The problem was eventually
diagnosed as Psoas tendonitis. Whatever the level of Ms. Wilkinson’s
discomfort in her lower back, it was not such that Dr. Bester mentioned it
in his October 2010 report. In his May 2011 report however he wrote:

She told me that she still has
back pain on a regular basis…On examination she had a painful gait, muscle
tenderness in the lower back mostly on the R side. She did not have localized
tenderness over the vertebrae and had no clinical signs of nerve damage or
deficit

In his opinion she has chronic muscular back pain, the
intensity of which varies. He concluded that her low back pain is not likely to
recover given that she still had it some three and one-half years after the
accident.

[42]        
Dr. Shawn McCann is a specialist in physical and rehabilitative
medicine. He saw Ms. Wilkinson at the request of her lawyer. In his April
14, 2009 report he wrote that she reported that she had pain and spasms on the
right side of her back. She thought that this low back pain had increased in
the previous six months. She told him that she had neck pain following the
accident but that it had diminished over time and with the physiotherapy that Ms. Clarke
had provided. By April of 2009 it was “intermittent” and aggravated by overhead
or forward reaching activities. He found that she had normal range of motion of
her neck and only mildly limited range of motion in her lower back. The pain in
her lower back is, in his opinion, likely mechanical in origin. The x-rays that
were available to Dr. McCann were “within normal limits”. He thought
however that given the longstanding nature of her lumbar pain, an MRI would be
a useful diagnostic test. Such a test might also be helpful in understanding
her hip pain. The MRI was done on January 23, 2010. Dr. McCann reported on
it in his February 22, 2010 letter. The MRI revealed “no significant pathology”
other than mild degenerative changes in the L4-L5 and L5-S1 area. The absence
of significant damage to the lumbar discs is, in Dr. McCann’s opinion, a positive
prognostic indicator.

[43]        
In terms of recreational activities, Ms. Wilkinson testified that she
no longer cross-country skis, something she did prior to the accident and when
her children were younger. She has not played golf since the accident. My
impression is that neither of these activities were things that Ms. Wilkinson
pursued to any extent before the accident. Ms. Wilkinson is able to play
softball on the women’s team she played on prior to the accident, although she
now plays a less physically demanding position. She continues to fish and camp
largely in the same manner she did prior to the collision. The most significant
limitation she is faced with involves the work she was doing and no doubt would
like to continue to do on her house. I am satisfied she was able to do a
significant portion of household repairs and the tasks associated with a reasonably
ambitious renovation herself. She needed help with some of those tasks but she
was able to do many of them and enjoyed doing them. She is now limited to work
that does not involve heavy lifting or overhead or bending postures. She is
able to do her daily housework but the heavier seasonal tasks are generally
beyond her.

[44]        
The defendant argues that Ms. Wilkinson has failed to mitigate her
damages in that she has not followed the exercise programs that almost all of
her health care providers have recommended. It is convenient to address that
issue now in part because it is significant to my conclusions regarding the
limitations the plaintiff will likely face in future.

[45]        
The legal principles governing the issue of mitigation in the context of
damages for personal injury were addressed in Janiak v. Ippolito, [1985]
1 S.C.R. 146. In Chiu v. Chiu, 2002 BCCA 618 at para. 57, the Court
of Appeal summarized those principles as follows:

[57]      The onus is on the
defendant to prove that the plaintiff could have avoided all or a portion of
his loss. In a personal injury case in which the plaintiff has not pursued
a course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably. These principles are found in Janiak
v. Ippolito, [1985] 1 S.C.R. 146.

Although Janiak dealt with medical treatment, the
principles apply to any remedial measure that would, if pursued, reduce or
mitigate the loss (see generally Maslen v. Rubenstein (1993), 83
B.C.L.R. (2d) 131 (C.A.) at  para. 11).

[46]        
Dr. Latham was the first medical professional to recommend that the
plaintiff follow a course of physical exercise. He gave that advice in October
2007 and repeated it in January 2008. Ms. Clarke gave the plaintiff
similar advice and gave specific suggestions as to how she ought to pursue such
a program. Ms. Wilkinson told Dr. McCann that she tried exercising at
a gym in the spring of 2008 but it was too painful; she said she tried again in
March 2009 but again found it too painful. Dr. McCann’s opinion is that a
course of regular exercise would result in Ms. Wilkinson having less pain
and greater functional ability.

[47]        
The plaintiff has made some effort to exercise. She purchased an elliptical
exercise machine. She used it but only briefly because her hip was painful. I
accept her evidence on that point. I am satisfied she would have continued to
use the machine but for her hip pain. It was not unreasonable for her to not
continue with that form of exercise given her hip pain.

[48]        
In the fall of 2009 Mr. Moffat referred Ms. Wilkinson to Tim
Cooper, a kinesiologist and certified exercise physiologist. He assessed her
and found that she was “quite de-conditioned”. While she had reasonable
strength, her aerobic capacity and her flexibility were both markedly reduced. He
recommended a six week supervised exercise program at the conclusion of which
he proposed to reassess her and, I infer, prescribe an ongoing program for her
to follow unsupervised. She began this program in October 2010 after, according
to Mr. Cooper, he “received documentation that the recommendation from the
previous December had been approved”. According to Ms. Wilkinson, one of
the impediments to pursuing a structured exercise program was that she lacked
the funds necessary to do so. Once she had the funds, she completed the program.
Mr. Cooper reported on the results in his report of December 20, 2010. He
testified that she did not miss any appointments and that he found her to be
motivated. Her level of fitness improved, specifically her strength and aerobic
capacity. In Mr. Cooper’s opinion, if she continued with the exercise
program he designed she would benefit even further. He noted that she was able
to tolerate some but not all of the exercises he attempted with her. As with
the other witnesses, he found that she still was experiencing pain in her lower
back when he last saw her, and it was this self-reported pain which limited her
ability to follow all of the exercises he thought would otherwise be warranted.

[49]        
The other course of treatment that the defendant points to is physiotherapy.
Ms. Wilkinson saw Ms. Clarke over the fall of 2007 and into January
of 2008. She stopped going not because Ms. Clarke suggested she should
stop but rather she just missed her last appointment and never returned. According
to Ms. Wilkinson she stopped going because she had returned to work at the
hospital that month, and thought she might be able to get physiotherapy through
her employer. That turned out not to be the case and she simply stopped getting
treatment altogether until June of 2008 when she was treated by Paul Saunders
on the recommendation of Mr. Moffat. Mr. Saunders saw her three times
during that month during which he noted “continued improvement”.

[50]        
Returning to the principles set out in Janiak, and dealing with
the second one first, I am satisfied on a balance of probabilities that
continued physiotherapy at least during 2008 would have reduced some of the
plaintiff’s symptoms and increased her functionality. Further, I am satisfied
that the supervised exercise program that Mr. Cooper recommended would
have yielded ongoing benefits. I reach this conclusion because Ms. Wilkinson
did benefit from both Mr. Saunder’s and Mr. Cooper’s assistance. There
is no reason to think those benefits would not have continued and perhaps
provided further relief.

[51]        
The more difficult issue is whether it was unreasonable for the
plaintiff to not have followed up on these therapies. She testified that it was
largely due to a lack of financial resources. I accept her evidence in that
regard. She was in the midst of renovations which were costly. In addition she
had lost the assistance that Mr. Harrison was to have provided. The
renovations were also time consuming and physically taxing. Further, she
underwent a very difficult separation from Mr. Harrison which extracted
both a financial and emotional toll. In all these circumstances I am not persuaded
that the defendant has established that it was unreasonable for the plaintiff
not to pursue a fitness regime more diligently than she did. Most of the impediments
to the pursuit of such a program will be no longer exist once this trial is
over. I will address the implications of that when dealing with the damages for
future losses.

Non-Pecuniary Damages

[52]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal set out
some of the factors to be considered when assessing non-pecuniary damages at para. 46:

[46]      The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 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 BCCA 54).

[53]        
It is the plaintiff’s contention that an award of $75,000 in
non-pecuniary damages is appropriate. In support Mr. Moffat points to Falconar
v. Le, 2003 BCSC 1434; Pelletier v. Khaw, 2005 BCSC 1302; Rollins
v. Lovely, 2007 BCSC 1752; Hartnett v. Leischner and ICBC, 2008 BCSC
1589; Kasic v. Leyh, 2009 BCSC 649; Bove v. Lauritzen, 2009 BCSC
1698; and Taraviras v. Lovig, 2011 BCCA 200. The defendant argues that
$35,000 is reasonable. In support Mr. Brunn cites Iwanik v. Hayes,
2011 BCSC 812 and Sharma v. Didiuk, 2010 BCSC 280.

[54]        
As to the plaintiff’s authorities, Falconar v. Le is not helpful.
It involved an 80-year-old plaintiff who lost the ability to live independently
as a result of the injuries he sustained. Rollins v. Lovely, Bove v.
Lauritzen, and Hartnett v. Leischner are hip injury cases and, given
the concession regarding causation of the plaintiff’s hip injury, are of little
assistance. Pelletier v. Khaw involved a 38-year-old plaintiff who was
injured in an accident that occurred four years prior to trial. Horses,
including riding, training, boarding and selling them, were her vocation and
avocation. Despite her repeated and diligent efforts to overcome the affects of
her accident, efforts for which she “paid the price”, she was unable to do many
of the activities she enjoyed prior to the accident. Her injuries, and the
limitations she experienced as a result, were likely permanent. She was awarded
$65,000 in non-pecuniary damages. Kasic v. Leyh involved a 50-year-old
plaintiff who suffered a permanent partial disability as a result of a soft
tissue injury to his back. The injury was serious and permanent as was the pain
he experienced as a result. He consumed $40 to $50 in pain medication a month. As
to the effects of his injuries, Morrison J. wrote at  para. 76:

[76]      Mr. Kasic’s
injuries have had a significant effect on him personally, on the other members
of his family, and on all aspects of his life, physically, mentally,
emotionally. His injuries affect his work and leisure activities. He is no
longer the main breadwinner and he is concerned about his future. He encounters
pain every day, from the moment he gets up in the morning until he tries to
sleep at night.

He was awarded $70,000 in non-pecuniary damages.

[55]        
Turning to the authorities referred to by the defendant, Iwanik v.
Hayes involved a 61-year-old plaintiff who suffered a minor compression
fracture to her T12 vertebra and soft tissue injuries to her neck and lumbar
spine which gave rise to a sustained and prolonged aggravation of her
pre-existing fibromyalgia. She was awarded $50,000 in non-pecuniary damages. In
Sharma the 30-year-old plaintiff sustained a mechanical neck and low
back injury which was likely chronic. The injuries did not affect her ability
to do her job (hairdresser) but her level of pain was exacerbated by the postures
she was required to sustain. She was however able to continue with her work
right after the accident, albeit at a reduced level. She was awarded $30,000 in
general damages.

[56]        
I am satisfied that Ms. Wilkinson sustained a mild to moderate soft
tissue injury to her lower back. It was significantly painful and physically
limiting for the first four months following the accident. It has remained
painful since. She uses over the counter Tylenol regularly, and prescription
strength Tylenol with codeine intermittently to help her manage the pain. I am
not satisfied her lower back has deteriorated since early 2008. To the extent Ms. Wilkinson
has experienced increased pain it is associated with the hip condition she
developed independently of the accident. Her injuries have affected her
recreational activities and her ability to do the heavier chores around her
home. The injuries also significantly impeded her ability to do the renovation
work she was in the midst of when the accident happened. This was a source of
frustration and inconvenience to her. Finally, while I accept that her
condition plateaued in early to mid 2008, I am satisfied that if she were to
pursue a reasonable fitness program, her symptoms would moderate and her
functional abilities would improve. Even with exercise however, I do not
consider that she will ever be symptom or pain free.

[57]        
In these circumstances an award of $40,000 is appropriate.

Past Loss of Income

[58]        
The plaintiff was earning $38,000 a year in 2007. She was off work for three
and one-half months following the accident. I am satisfied that it was
reasonable for her to remain off work for that period.

[59]        
Over the three and one-half years since she returned to work she has
missed time on an intermittent basis. She lost some 18 shifts in 2008, 12 in
2009 and 13 in 2010. The plaintiff argues that this work loss was mostly due to
the accident. In fact she testified that 90 percent of it was due to her low
back problems.

[60]        
I am not convinced that the plaintiff’s lost income, in the years between
2008 and the trial, was due to the injuries she sustained in the accident, at
least not to the extent that she believes. First, I am satisfied that at least
some of the time she has missed was due to her hip and gait problems. Second,
and more importantly, the plaintiff lost significant time from employment prior
to the accident. I appreciate that some of those pre-accident absences were due
to specific and isolated circumstances (matrimonial problems and a difficult
child custody situation) but not all of them were.

[61]        
I am satisfied that the plaintiff lost five months’ income due to the
accident prior to the trial. She was earning approximately $3,166 a month. Thus
her gross wage loss was $15,830. I accept that her average tax rate was
approximately 10 percent. She is entitled only to her net past lost income (Hudniuk
v. Warkentin (2003), 9 B.C.L.R. (4th) 324). The award for past income loss
is therefore $14,250.

Loss of Future Earning Capacity

[62]        
The plaintiff argues that an award for loss of future income earning
capacity is warranted in this case. While recognizing that quantifying such an
award is not a matter of arithmetic, Mr. Moffat argues that Ms. Wilkinson’s
past income loss from 2008 until the trial is some indication of what the
future may hold for her. Based on that, and accepting Ms. Wilkinson’s
explanation for her absences from work, it is reasonable to conclude she will lose
income amounting to about 8 percent a year, or $4,000 (based on an anticipated
income of $50,000). Using the income loss multipliers in Mr. Carson’s May
4, 2011 report, this amounts to some $63,212.

[63]        
The defendant argues that no award should be made under this head. He
argues that the plaintiff has not proven a “real and substantial” possibility
of a future event giving rise to a loss of income. He argues that the plaintiff’s
employment history since the motor vehicle accident supports that conclusion as
does the evidence of Dr. McCann and the occupational therapist, Dianna
Robertson.

[64]        
The law relating to loss of future income earning capacity was recently
explained and summarized by Garson J.A. in Perren v. Lalari, 2010 BCCA
140. At para. 32 she wrote:

[32]      A
plaintiff must always prove…that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos and
Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment…

[65]        
Ms. Robertson carried out a functional capacity evaluation on
October 9, 2009. She assessed the plaintiff in her home in April 2010 and
interviewed the plaintiff in 2011. In her report of June 28, 2010 she concluded
that the plaintiff was “capable of continuing to work full time (with some limitations)…”.
Most of the limitations that Ms. Robertson had in mind were due to Ms. Wilkinson’s
hip problem. Further, she testified that given the improvement that Ms. Wilkinson
showed following her participation in Mr. Cooper’s exercise regime, it is
probable, although not certain, that with continued exercise she would do
better on a functional capacity evaluation.

[66]        
Dr. McCann wrote in his April 14, 2009 report that in his opinion
the plaintiff would be able to work in her profession “on an indefinite basis”.
In his May 9, 2011 report, a report he prepared after further investigations
were carried out into Ms. Wilkinson’s hip and gait problems, he wrote
that:

…I do not see any abnormalities
on this test [an MRI] that would prevent her from continuing to work full time
with full duties within her current job description of laboratory technician. However,
this acknowledges that there will be times at work where she is in more pain
and discomfort in her lumbar spine, especially when she performs increased
reaching, lifting or stooping

If she carried on with regular stretching and followed a
strengthening program, he concluded that she will maintain her level of
functionality indefinitely.

[67]        
Returning to the test to be applied in relation to damages for loss of
future income capacity, the question is whether the plaintiff has proven that
there is a real and substantial possibility of a future event causally related
to the injuries she sustained in the motor vehicle accident that will give rise
to an income loss, whether in her current employment or in any realistic future
alternative employment. In my opinion she has not discharged that burden. First,
as to Mr. Moffat’s suggestion that income loss since 2008 supports such an
award, I am unable to agree. As noted in dealing with the past income loss
claim, her absences from work prior to the accident were significant. Indeed
they generally corresponded with her entitlement to paid sick leave. Further, I
am satisfied that the residual time off that is attributable to the accident
will be mitigated to the point of insignificance with a structured exercise
program. Finally, the evidence of both Dr. McCann and Ms. Robertson
is to the effect that the plaintiff will be able to work fulltime and
indefinitely.

[68]        
I accept that Ms. Wilkinson will experience pain and discomfort due
to her employment from time to time. I have taken that into account in
assessing general damages.

Costs of Future Care

[69]        
The plaintiff is entitled to compensation for the cost of future care
based on what is reasonably necessary to restore her to her pre-accident
condition in so far as that is possible (Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.); Williams (Guardian ad litem of) v. Low, [2000]
B.C.J. No. 408 (S.C.); Spehar (Guardian ad litem of) v. Beazley,
[2002] B.C.J. No 1718 (S.C.)). The test to be applied in determining the
appropriate amount of an award for the cost of future care is objective; there must be a medical justification for the future care and the
claims must be reasonable (Milina v. Bartsch at p. 84). Moreover
common sense is important in assessing claims under this head (Penner v.
Insurance Corporation of British Columbia, 2011 BCCA 135, at paras. 12
and 13).

[70]        
Mr. Robertson has provided two cost of future care reports, the
first dated May 9, 2011 and the second dated May 18, 2011. I will deal first
with the one-time expenditures and then address those items which occur more
frequently.

[71]        
As to the former, they include physiotherapy in the amount of $850 for
15 sessions to provide aggressive stretching, a three-month yoga pass for $300,
an inversion table ($400), and an electric lawn mower ($500). All of these,
with the exception of the yoga classes and the lawn mower, are supported by the
evidence of Dr. McCann and to a lesser extent Dr. Bester. I am not
satisfied the yoga classes meet the applicable test. They were recommended by
the pedorthist, Travis Lehr. His recommendations flowed from the hip and
associated gait problems that Ms. Wilkinson experiences. The lawn mower is
an appropriate expense for the reasons noted above.

[72]        
The more frequent future care costs are interior seasonal house cleaning
($450 a year), heavy seasonal yard work ($1,120 a year), footwear ($275 a
year), medication (between $52 and $104 annually) and an annual gym pass ($368
to $537). The footwear is due to the hip and gait problems and is not the
responsibility of this defendant. The seasonal interior housework and yard
maintenance are supported by the medical evidence and by Ms. Wilkinson’s
evidence. Medication at $50 a year is also warranted as is an annual gym pass. There
is no explanation for the variation in the annual gym costs. I consider that
$400 a year is reasonable.

[73]        
I note the defendant’s argument that Ms. Wilkinson may well have
developed back problems in the future even if she had not been involved in this
accident. That argument is based on her history of back problems in the latter
half of the 1990s. I am not satisfied that there is a measurable risk of that
occurring and thus decline to discount the award on that basis. Further, while
I accept that Ms. Wilkinson’s functionality will likely improve with exercise
and stretching, I am satisfied that the tasks associated with annual interior
and exterior chores will remain beyond her.

[74]        
In summary, the plaintiff is entitled to $1,750 for onetime expenses,
and an award to cover annual expenses of $2,020. As I understand Mr. Carson’s
August 30, 2010 cost of future care multipliers, the present value of $1,000
annual expense incurred for the next 22 years, that is until Ms. Wilkinson
is 65 years old, is $15,500. I consider 65 the reasonable outer limit because Ms. Wilkinson
will likely be retired then and that will result in a decrease in her symptoms and
an increase in her ability to attend to at least some of these matters herself.
Further, her living arrangements may then require less assistance. Therefore,
the award for the cost of future care is $33,060 ($31,310 plus $1,750).

Special Damages

[75]        
Ms. Wilkinson is entitled to recover her reasonable out-of-pocket
expenses incurred due to the accident. The plaintiff is entitled to $1,349 in
special damages. These are for prescription drugs ($24 net of Blue Cross
coverage); physiotherapy sessions ($202 also net of Blue Cross), Interior
Health Leave of Absence billing of $1,069, an ambulance fee ($10.80) and the cost
of a medical report ($35).

Summary

[76]        
In summary, damages are awarded as follows:

a)    non-pecuniary
damages: $40,000

b)    past loss of
income: $4,250

c)     future
loss of income earning capacity: $0

d)    cost of future
care: $33,060

e)    special damages:
$1,349.

[77]        
Finally unless there are matters touching on the issue of costs about
which I am unaware, the plaintiff is entitled to her costs at Scale B.

“G.M.
Barrow J.”
The Honourable Mr. Justice Barrow