IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120201

Docket: M117003

Registry:
New Westminster

Between:

Jordin Lee Araki

Plaintiff

And

Barbara Ann
Guitard, Joseph Scott Guitard
and Andrew Lee Bowden

Defendants

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

[1]            
In this action, the plaintiff seeks to recover damages which she says
resulted from a motor vehicle collision that occurred on February 21, 2007. Liability
is admitted by the defendants. The sole issue is the determination of damages.

Background

[2]            
On February 21, 2007, the plaintiff, then a 17-year-old grade 12
student, was riding in a car driven by her friend, the defendant Andrea Lee
Bowden. The two had left the school to do an errand and were on their way back
when the collision occurred. The plaintiff was seated in the front passenger
seat and was wearing a lap and shoulder belt. The vehicle had stopped in an
intersection and was proceeding forward when it was struck from the left by a
van. The brunt of the impact was taken by the left driver’s side door. The
impact was reasonably severe; there was significant damage to the left side of Ms. Bowden’s
vehicle and it was shoved some distance. Photos in evidence show the damage. I
note that the airbags in the Bowden vehicle did not deploy. Neither of the
occupants of the car reported any loss of consciousness.

[3]            
Both the plaintiff and Ms. Bowden got out of the vehicle. Emergency
personnel attended; both of the young women declined the offer of the ambulance
crew to check them out. They arranged to be picked up by the plaintiff’s mother
who took them to her home.

[4]            
The defendant Ms. Bowden testified at trial. She agreed the force
of the collision was significant. She said she did not incur any significant
injuries in the incident.

[5]            
The plaintiff says that the force of the collision caused her to come
into violent contact with the interior of the car and that she sustained
injuries to her right-hand side; specifically, she claims that she hurt her
right shoulder as well as neck and mid back on the right side. She also
testified that she experienced headaches following the accident. While the
headaches and the neck and back pain have substantially resolved, she says that
the injury to her shoulder has continued to cause problems for her and that
even now, nearly five years after the accident, the pain persists and that it
meaningfully interferes with her comfort and her ability to do her job and to
engage in everyday activities.

The Injuries and Their Effects

[6]            
There was a substantial body of medical and related evidence before the
Court. It included the reports of Dr. Chapman, the plaintiff’s family doctor;
the report of a sports medicine specialist, Dr. Shearer; and the reports
of three orthopaedic surgeons, Dr. Moola, Dr. McKenzie and Dr. Regan.
As well, there was a report from Dr. Hirsch, a doctor with a specialty in
physical rehabilitation, and there was a functional capacity evaluation report
prepared by an occupational therapist. All of these witnesses, with the
exception of Dr. Hirsch, were called for cross-examination at trial.

[7]            
Based on all of the evidence, I am satisfied that it has been proven
that the plaintiff sustained physical injuries in the collision. Those included
injuries to the right side of her neck, the right side of her upper and mid
back, and to her right shoulder. As well, she experienced occasional headaches.

[8]            
The headache condition resolved within a short time, a matter of months
at the most.

[9]            
The back and neck discomfort have substantially resolved although it is
not exactly clear when. I am satisfied that state had been attained within
three years of the accident. The discomfort from those particular areas was not
especially significant; it would be fairly described as modest. If there are
occasional discomforts in those areas now, I find they are associated to the
shoulder pain.

[10]        
The plaintiff’s right shoulder has continued to be painful. The pain and
discomfort has significantly lessened since the early stages following the
accident, but remains an issue nevertheless. The pain is not constant but
intermittent. It is affected by her activities; for example, when she is
reaching overhead or when her shoulder is subject to load in a certain way,
discomfort will result. Also, on occasion she experiences discomfort as a
consequence of taking certain postures; that is, it is a matter of how she is
sitting or lying.

[11]        
The matter of the shoulder injury has been extensively investigated. The
conclusion which emerges is that there is no detectable damage to her shoulder
structure. The pain is muscular or musculoligamentous in nature. There is no
reason to believe that surgical intervention would be warranted. Given its
persistence, it is unknown whether it can be expected to resolve. Certainly the
prognosis for a complete recovery is guarded: the shoulder pain may not
resolve.

[12]        
A persistent theme running through virtually all of the reports is that
physical therapy, exercise constituting graduated movement, is recommended. One
of the reports, that of Dr. Hirsch, specifically recommends against
passive treatment modalities such as chiropractic or massage therapy, although
both Dr. Regan and Dr. Moola stated that massage was an acceptable
form of therapy. Dr. Regan indicated his view that swimming would be a
desirable activity to promote rehabilitation. The other experts tended to
support that view.

[13]        
I pause to note that it appears, regrettably, that the plaintiff’s
commitment to regular and consistent physical exercise has been less than might
have been expected. She engaged in two rounds of physiotherapy; in each case,
apparently she stopped because she found the process frustrating. Otherwise, it
is not entirely clear what she has done to support her recovery. At time of
trial, she was taking massage therapy weekly and had been doing so for
approximately one year. She also said that she was stretching using a “Thera-Band”.
This was being done on a weekly basis. The measures seem to be substantially
less than optimal.

[14]        
In terms of functional impact, I conclude that, because of the shoulder
condition, the plaintiff is subject to some practical limitations, although
they are relatively modest. Her ability to reach out and reach up with her
right arm is slightly restricted by pain she experiences. That is also true
with respect to her ability to lift and carry weights in excess of 30 pounds.

[15]        
Overall, it was the conclusion of the functional capacity evaluator that
the plaintiff is suited to light and some modified medium level strength tasks.
The opinion of the evaluator was that she also demonstrated functional
limitations, specific to prolonged and repetitive work involving her right
shoulder.

[16]        
The significance of these findings must of course be considered in light
of the principle that it is the Court’s duty to examine the plaintiff’s
circumstances, not in an absolute way, but rather in a relative sense. What is
being assessed is the effect of the defendants’ responsibility for her
situation – the difference between how she was prior to the injury and how she
is now. In that vein, I note the evidence of the functional capacity evaluator
who indicated that the plaintiff is a person of small stature: she is five feet
tall and weighs approximately 120 pounds. As I understand the evaluator’s
testimony, in the absence of the injury at bar and its effects, she is someone
who would be expected to be capable of activity requiring medium-level
strength.

[17]        
It is that difference which must be used to determine the matter of an
appropriate award of damages relating to her diminished capability to perform
physical tasks.

[18]        
The accident did not appreciably impact the plaintiff’s attendance at
school. She missed a minimal amount of class and completed her final year of
high school, graduating as scheduled.

[19]        
Following graduation, the plaintiff was employed in different jobs in
the restaurant industry. There is nothing in the evidence to suggest that her
work was affected or impacted by the injuries, with the exception of a minor
wage loss claim which will be dealt with later in these Reasons. Although the
plaintiff testified that she had and then quit a food preparation job in a
restaurant where she found herself experiencing discomfort because of shoulder
pain when chopping, there is no basis to conclude that the consequences of the
accident were the cause of her leaving that job or that they otherwise impacted
her employment.

[20]        
In 2008, the plaintiff enrolled in a medical office assistant (“MOA”)
program at a private college. That was a 12-month course which she completed in
March 2009. She described some discomfort during the program but nothing that
interfered with her ability to perform. Following graduation she found
employment. At first she had a part-time position but subsequently secured
full-time work.

[21]        
Since her graduation, the plaintiff has shown herself to be a diligent
and reliable worker. Her present employer and a co-worker testified at trial,
both to that effect. It is also apparent that she has chosen to work hard; for
much of the time since embarking on her career, she has held more than one job
such that her usual work week is six or seven days and she routinely works well
in excess of 40 hours per week. At times, she has worked up to
60 hours per week.

[22]        
The flavour of the evidence seems to be that she may be somewhat
excessive in her focus on work, and that others around her wonder whether this
is an entirely healthy pattern.

[23]        
The plaintiff described how she became aware of the job of medical
office assistant, and that resulted in her pursuing the training. The effect of
her evidence is that she has had a long-standing interest in being in a job in
the medical field. In her testimony, she indicated in a general way an interest
in pursuing the training to become a licensed practical nurse (LPN) or a
medical technician of some sort, such as in a laboratory. This latter interest
was only mentioned in a quite cursory way in her evidence.

Damages: Analysis and Discussion

[24]        
The plaintiff claims damages under a number of different heads. Each of
those will be examined individually.

Non-pecuniary damages

[25]        
The plaintiff seeks an award of damages to compensate her for pain,
suffering and the loss of enjoyment of life that have resulted from the
negligence of the defendants.

[26]        
The plaintiff says that the injuries she sustained have resulted in a
pattern of pain and discomfort that, while it has abated to some extent, has
diminished her quality of life. She says it has impacted her enjoyment of such
pastimes as softball, that it has made the performance of her everyday
household chores more difficult, that it has interfered with her ability to
play with her young nephew and that it has made the performance of her job more
difficult. She says as well that the logical conclusion to be drawn from the
medical evidence is that, while there may be some room for improvement in the
future, her pain is likely permanent.

[27]        
In the submission of the plaintiff, a fair and reasonable award for
non-pecuniary damages is $65,000. In support of that, a number of authorities
are cited:

(a) Henri
v. Seo, 2009 BCSC 76;

(b) Milliken
v. Rowe, 2011 BCSC 1458;

(c) Barnes
v. Richardson, 2008 BCSC 1349; and

(d) Hmaied
(Litigation guardian of) v. Wilkison, 2010 BCSC 1074.

[28]        
The defendants do not substantially dispute the plaintiff’s claims of
injury. However, they contend that the plaintiff’s failure to mitigate her
situation by appropriately pursuing her rehabilitation is a factor which weighs
against her. The defendants submit that an appropriate award is in the range of
$35,000‑$40,000. They offer a number of authorities in support of that:

(a) Campbell
v. Banman, 2008 BCSC 626;

(b) Chalmers
v. Russell, 2010 BCSC 1662;

(c) Duley
v. Friesen, 2007 BCSC 1723;

(d) Goertz
v. Kujala, 2006 BCSC 667;

(e) Jones
v. Ma, 2010 BCSC 1125;

(f) Palmer
v. Blake, 2003 BCSC 1219;

(g) Sinnott
v. Boggs, 2006 BCSC 768; and

(h) Perren
v. Lalari, 2010 BCCA 140.

[29]        
I have examined each of the decisions provided to me by counsel. Of
course, the facts of any given case will almost always be unique and unlike any
other, although the decisions of other courts and cases that are somewhat
similar can provide useful guidance.

[30]        
In the present case, the headaches resolved quite quickly; the neck and
back pain resolved, for the most part, within a reasonable time. The shoulder
pain has, however, persisted and continues to cause discomfort. Although not
certain, it seems reasonable to expect that this may not fully resolve. She may
continue to experience that discomfort indefinitely. That is a relevant
consideration.

[31]        
In the course of trial, there was evidence which suggested that the harm
sustained by the plaintiff had been especially significant because the shoulder
injury had impacted her ability to throw a ball, and that she had been
precluded from pursuing a pastime for which she had great passion and in which
she was especially gifted: softball. In fact, certain of the medical reports
indicated that she either had a scholarship or was a serious candidate to be
awarded one. In fact, that seems to have been a misunderstanding. Some of the
witnesses who testified for the plaintiff painted a picture suggesting she was
a young woman who was quite highly skilled and to whom playing ball was a very
important focus. With respect, I find myself somewhat restrained in accepting that
representation in all its fullness. It is clear that her family, her
parents particularly, consider that to have been important to her, and I accept
that it was an enjoyable pastime for her. However, to be fair, I am driven to
conclude that the plaintiff was a quite conventional young woman who had
participated in soccer and then quit the year prior to the accident. As for
softball, she played in a recreational way at the house league level and, for
one year, at the lower level of the so-called “rec” league. She apparently
enjoyed her involvement, but I am disinclined to accept that softball was an
all-consuming passion or that she was deprived of a pastime which was
especially central to her. Nevertheless, the injury seems to have taken away
her ability to participate in sports which involve throwing, and that is
something that she did.

[32]        
In all the circumstances, I am influenced by the fact that the effect of
this injury does cause the plaintiff discomfort of a discernible sort and that
occurs not infrequently, both at work and while doing other things.

[33]        
I am of the view that an appropriate award under this head is $50,000.

Past Loss of Income

[34]        
The claim under this head is modest. The evidence indicates that the
plaintiff missed approximately one week of part-time work following the
accident. I am satisfied that her absence was a reasonable response to the
injuries and that she sustained a loss as a consequence.

[35]        
The claimed loss is in the amount of $200. The plaintiff is entitled to
recover that.

Loss of Future Earning Capacity

[36]        
Since her graduation from the MOA program, the plaintiff has been
employed in that field. In her last complete year of work, she earned
approximately $32,000. She has worked hard and has put in additional shifts to
attain that income. The plaintiff’s testimony is that she aspires to improve
her employment circumstances, although she wishes to stay in the general field
of medical-related work. Specifically, she says that she is interested in
possibly pursuing training to become an LPN. She has also indicated an interest
in becoming a lab tech, although no details of that possible career path were
provided.

[37]        
Evidence was adduced with respect to the LPN program offered at
Vancouver Community College and also concerning the income for persons in that
field.

[38]        
The thrust of the plaintiff’s submission is that it is likely she will,
at some time in the future, seek to find other better employment in the medical
support field, and when she does, the effects of the injuries she sustained
will render her less capable of earning income. The submission as articulated
by her counsel was that the plaintiff has been rendered less capable overall
from earning income from all types of employment, is less marketable or
attractive as an employee to potential employers, has lost the ability to take
advantage of all job opportunities which might otherwise have been open to her
had she not been injured, and is less valuable to herself as a person capable
of earning income in a competitive labour market. He says the Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353, approach is appropriate where the loss
is not measureable in a pecuniary way. He says that an obvious example of such
an approach is where the plaintiff is a young person whose career path is
uncertain. In the submission of plaintiff’s counsel, when the plaintiff’s
relatively youthful age is taken into account and the permanent nature of the
injury is considered, an appropriate award under this head of damage is in the
range of $50,000‑$75,000.

[39]        
The defendants take the position that the case has not been made to
warrant an award for a loss of capacity. However, in the alternative, they
submit that if the Court sees fit to make such an award, damages should be
limited to approximately six months to one year of the plaintiff’s annual
earnings.

[40]        
Both the plaintiff and the defendants submit that the decision of the
Court of Appeal in Perren v. Lalari (2010 BCCA 140) is apposite.

[41]        
The plaintiff’s case as it relates to this claim is modest. While she
may well hope to pursue the vocation of LPN, the evidence does not satisfy me
that the effect of her injury will meaningfully impact her pursuit of that
career. It has not been proven that any functional capacity limitations she has
as a consequence of the defendants’ conduct will materially affect that. Other
issues, such as the fact that her academic record would require upgrading, and
whether she is otherwise suited to such a program, are relevant considerations,
but I do not propose to dwell upon them here. There is certainly no reason to
conclude that she would be foreclosed from pursuing that vocational path.

[42]        
The plaintiff has not proven that the injury has specifically affected
her in a way that any particular occupation choice that would otherwise have
been available has now been foreclosed.

[43]        
Notwithstanding that, it is necessary to consider whether there is a
real and substantial possibility that her injury (the right shoulder) and its
limitation will cause an income shortfall during her working career. That is,
in a case such as this, an imprecise evaluation. The plaintiff is young and her
career path is uncertain. There are a number of possibilities and contingencies
involved: while she says that she is interested in pursuing a vocation in the
medical field, there are a number of different forms that might take, whether
as a technician, an LPN, or some other particular speciality; how she will
progress in that endeavour cannot be predicted; there are of course always
vagaries in terms of the job market that will affect how a career trajectory
actually plays out. All of these unknown factors underscore that the Court’s
determination of an appropriate award is very much a matter of making the best
assessment. It is not a task which allows for a straightforward calculation. As
well, it must be appreciated that this is not compensation for pain and
discomfort she might experience in her occupational environment. That has been
addressed by way of the non-pecuniary damage award.

[44]        
All that considered, I find that there is a basis to make an award under
this head, although not at the magnitude sought by the plaintiff. In my view,
an appropriate amount is $35,000.

Cost of Future Care

[45]        
The plaintiff asks that she be awarded $5,000 to enable her to continue
to receive massage therapy. The cost of that treatment is $50 per one hour
session; her current routine is to attend weekly.

[46]        
The defendants urge the Court to deny this claim; in the alternative,
they say a minor amount for massage therapy could be awarded.

[47]        
It is reasonable to conclude that the plaintiff should continue to
receive appropriate therapy for the injury she sustained. Evidently she
considers massage therapy to be the best course of treatment. Based on the
totality of the evidence, one might think that an appropriate routine of
physical exercise would be the preferred course for her.

[48]        
Nevertheless, I am satisfied that there is a legitimate need which is a
consequence of the conduct of the defendants and I will award her $3,500 under
this head.

Special Damages

[49]        
The plaintiff has submitted a schedule of expenses that she claims she
incurred as a consequence of the injury caused by the defendants’ negligence. That
includes fees for physiotherapy and massage, medications, costs for attendances
at medical and therapy appointments, and a fee paid for softball for the 2007
season. Because of her injury, the plaintiff was unable to participate; the fee
she had prepaid was not recoverable.

[50]        
I am satisfied that the sums claimed are reasonable and should be
recovered. She is awarded $2,365 under this head.

Summary of Awards

[51]        
Ms. Araki has established entitlement to the following damage
awards:

Costs

[52]        
Unless there are matters of which I am unaware, the plaintiff will have
her costs on Scale B.

“The
Honourable Mr. Justice Williams”