IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120326

Docket: M091296

Registry:
Vancouver

Between:

Meena Rani Mohan

Plaintiff

And

Iftikar Khan, John
Doe and
Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Bowden

Reasons for Judgment

Introduction

[1]            
The plaintiff, Meena Rani Mohan, is seeking damages for personal
injuries and other losses in relation to a motor vehicle accident. The
defendants deny liability and, if liability is established, disagree with the
quantum of damages sought by the plaintiff.

The Accident

[2]            
On May 14, 2007, at or near the intersection of Kingsway Street and 16th
Avenue in the City of Vancouver, a vehicle driven by the defendant, Mr. Iftikar
Khan, collided with a vehicle driven by the plaintiff.

[3]            
The day was sunny and clear, and the roads were dry. The plaintiff was
driving from her home to pick up her daughters at their daycare. She was
wearing a lap and shoulder seat belt. Her vehicle was a white Jeep Cherokee. It
did not have air bags.

[4]            
After turning onto Kingsway, the plaintiff travelled west in the centre
lane and then changed to the curb lane in preparation for a right turn onto 16th
Avenue. She checked her mirror and signalled to turn onto 16th Avenue. She saw
two vehicles coming up behind her and she said she thought that they were
speeding. The plaintiff testified that “in the blink of an eye” one of the
vehicles hit her vehicle. She remembers little else about the circumstances
surrounding the accident. Her next memory is of waking up at Royal Columbian
Hospital. The defendant’s vehicle was travelling behind the plaintiff’s vehicle
in the same direction and collided with the rear of the plaintiff’s vehicle. The
resulting damage to both vehicles was extensive. Both were complete write-offs.

[5]            
Constable Christopher Fox of the RCMP investigated the accident. Photographs
taken by him at the scene are found in Exhibit 5. He described the two vehicles
and noted extensive rubber skid marks ending at the rear of the defendant’s
vehicle. The skid marks are visible in the photos.

[6]            
Constable Fox spoke with some individuals in the area but did not speak
with the plaintiff.

[7]            
RCMP Constable Canmar Bal also attended the accident scene. He arrived
at the scene about 15 minutes after the dispatch call. After speaking with a
witness and observing the skid marks, which he described as being fresh, he
concluded that the skid marks had been left by the defendant’s vehicle. He then
decided to issue a ticket to the defendant for the offence of excessive
speeding, which he defined as exceeding the posted speed limit by more than 40 kilometres
per hour. The posted speed limit was 50 kilometres per hour.

[8]            
Mr. Adriano Merlo testified that he saw the accident while he was
travelling east on Kingsway. He lived nearby and he recognized the plaintiff,
who was his neighbour, when he passed by her at Stride Avenue. He described
seeing two cars passing him westbound at high speed and looked back to see a
cloud of smoke and said he knew that there had been an accident. He turned back
and went to the scene where he found the plaintiff slumped over the steering
wheel asking about her children. He reached into her vehicle, put the
transmission in park and turned the engine off.

[9]            
Mr. Connor McPhee testified that while he was driving his vehicle
westbound on Kingsway before the accident occurred, a vehicle was following him
closely while he was travelling at about 65 kilometres per hour. He said that
the vehicle passed him on the passenger side of his vehicle and then engaged in
what appeared to him to be a drag race with another vehicle in front of Mr.
McPhee. He said he heard both vehicles revving their engines and described them
as “taking off” from where he was and going straight ahead. He estimated that
they were travelling up to twice his speed. He noticed the white Jeep, which is
the plaintiff’s vehicle, in the right hand lane in front of one of the
vehicles, and realized that a collision was going to occur. He did not observe
the Jeep make any turn or lane change and saw it only in the right hand lane. He
then saw the vehicle behind the plaintiff’s vehicle, which I have concluded was
driven by the defendant, collide with the rear of the plaintiff’s vehicle. Mr.
McPhee immediately went to the scene and saw someone trying to calm down the
woman in the driver’s seat of the Jeep. He said that the vehicles were
positioned as shown in Photo 9 of Exhibit 5. There is no question that the
front end of the defendant’s vehicle collided with the rear end of the
plaintiff’s vehicle.

[10]        
The defendant, Mr. Khan, testified. He described the accident and the
circumstances leading up to it quite differently than the plaintiff and other
witnesses.

[11]        
Mr. Khan said that he had dropped off his wife and was on his way to Shoppers
Drug Mart with his one-year-old daughter in the rear seat of his vehicle. He
said that after a right turn onto Kingsway he stopped at a red light at 14th Avenue.
He said the driver in the vehicle next to him was revving the engine and he
started revving the engine of his vehicle to show off the sound of his
after-market exhaust pipes. He then said he travelled west on Kingsway at
between 50 and 50 kilometres per hour next to the car in the left lane that he
described as going faster than him. He said the white Jeep changed lanes in
front of him and he had no time to apply his brakes before rear-ending it. He
described the white Jeep as turning into the right lane at the time he collided
with it. He says that he was not racing with anyone before the accident. He
says that the skid marks at the scene were not made by his car and that his
tires were wider than those marks. He says he took measurements and photographs
of the skid marks the next day. He did not produce any evidence of either.

[12]        
After the collision, Mr. Khan said that the plaintiff got out of her
vehicle and came back to talk to him and then went back to her vehicle.

[13]        
He said that he intended to dispute the ticket he was given for
excessive speeding but was not able to go to court because he was busy at work,
so he ended up paying the fine.

[14]        
Mr. Khan said that he was proud of his vehicle. It was turbo-charged and
he agreed with counsel that it was capable of going fast. He said that he did
not consider the revving of engines to be a sign that two vehicles were going
to race. He says he revved his engine just to show the other driver how loud
his exhaust pipes were. He agrees that when the light at 14th Avenue turned
green, the vehicle beside him took off really fast but he denies engaging in a
race with that vehicle. He says he only applied the brakes of his vehicle after
colliding with the plaintiff’s car. This is at odds with his evidence in his
examination for discovery where he said that he slammed on his brakes after the
Jeep came into the lane in front of him. When asked why he didn’t apply his
brakes when the Jeep entered his lane, he said he assumed that the Jeep would
return to the left-hand lane. During cross-examination he conceded that the
accident did occur after the Jeep was well into the right lane in front of him.

[15]        
Regarding the photo of the skid marks taken by the police, he said he
had not been aware that they had taken photos at the scene. He said that it was
a coincidence that the photos show the skid marks ending at the rear wheels of
his vehicle.

Liability

[16]        
I reject the defendant’s version of how the collision occurred in its
entirety.

[17]        
In assessing the defendant Khan’s credibility, I have considered the
factors described in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186,
by Dillon J. as follows:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Faryna]; R. v. S. (R.D.), [1997] 3. S.C.R. 484 at para. 128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[18]        
In my view, the defendant’s version of the events leading up to the
crash was highly unlikely. It was also inconsistent both with the credible
testimony of the other witnesses and with the probabilities affecting the case
as a whole.

[19]        
I find that the defendant was operating his vehicle at a speed far in
excess of the posted speed limit such that when he came up upon the plaintiff’s
vehicle, which was properly situated in the right hand lane, he applied his
brakes but was unable to stop before colliding with the rear of the plaintiff’s
vehicle. I also find that the skid marks shown in the photograph in Exhibit 5
were made by the defendant’s vehicle when the defendant attempted to stop
before colliding with the plaintiff’s vehicle.

[20]        
There is no doubt that the defendant, Mr. Iftikar Khan, owed a duty of
care to other persons, such as the plaintiff, operating vehicles on the roadway.
By operating his vehicle at an excessive speed such that he was unable to take
evasive action or stop before colliding with the plaintiff’s vehicle, the
defendant did not exercise the standard of care that would be expected of a
reasonable person in the circumstances. As a result, the defendant breached his
duty of care and the result was that his vehicle collided with the plaintiff’s
vehicle.

[21]        
I have no hesitation in concluding that but for the negligent actions of
the defendant in the operation of his vehicle the collision with the
plaintiff’s vehicle would not have occurred. (Resurfice Corp. v. Hanke,
2007 SCC 7)

[22]        
Accordingly, I find the defendant, Mr. Khan, wholly liable for the
collision and the resulting damage and injury. Furthermore, the evidence does
not establish that the plaintiff contributed in any way to causing the
accident.

Injuries

[23]        
The plaintiff is seeking damages for injuries she suffered as a result
of the collision with the defendant’s vehicle. The task of this Court is to
consider the position that the plaintiff would have been in if not for the
accident which resulted from the defendant’s negligence.

[24]        
The plaintiff is 41 years of age and has lived in Canada since 1996 when
she arrived from India. She is married but separated from her husband. Since
that time she has been the sole caregiver for her three daughters: one 14 years
of age; and twins aged 12. Her children are active in sports. Her husband resides
in B.C. but, since January 2011, when he paid her a lump sum of $20,000 in
response to a court order, he has not provided any financial support to her.

[25]        
Prior to the accident, the plaintiff was employed by Canada Post on a
part-time basis. She worked eight-hour shifts each Friday, Saturday and Sunday.
Before the accident occurred, she had planned to work on a full-time basis when
her children were old enough to look after themselves. Before coming to Canada
she obtained a Bachelor of Arts, Bachelor of Education and Master of Arts in
India. She has also worked as a high school teacher for two years.

[26]        
Before the accident the plaintiff regularly attended exercise and yoga
classes. She also frequently drove her children to school and other activities.

[27]        
She was involved in another motor vehicle accident in 2004 resulting in
some neck and shoulder injuries. She did not work for about four weeks
following that accident. She said that those injuries resolved before the
collision in 2007. She also suffered a soft tissue injury to her foot at Canada
Post but says that injury had also healed before the collision with the defendant.

[28]        
The plaintiff does not remember much after the collision occurred until
she realized that she was at the Royal Columbian Hospital where she had been
taken after the accident. She does not remember feeling any pain at the
hospital but when she went home she said that she experienced pain in various
parts of her body, especially around her head. For a period of three months she
used a wheel chair and required assistance around the house from a hired
caregiver.

[29]        
She visited her family physician, Dr. Petrovic, and was prescribed Percocet,
a pain medication. She said that it did little to help relieve her pain.

[30]        
Upon the recommendation of her family doctor, about five months after
the accident, the plaintiff began attending a physiotherapist. She received
physiotherapy until early in 2008 from Michelle Wong. She said that, as a
result, her condition improved. She also started doing some yoga which she
described as primarily breathing exercises.

[31]        
The plaintiff testified that about one year after the accident, she was
becoming increasingly frustrated because she was continuing to experience pain
and it was not going away.

[32]        
In September 2007, the plaintiff began receiving disability insurance
payments from Sun Life in the amount of about $1,200 per month. She said that
she was no longer able to drive a vehicle but was able to use the HandyDART and
taxis from time to time when she needed transportation.

[33]        
In 2007 she visited Dr. Wittenburg, an oral surgeon, because of
continuing problems with her left jaw. He recommended that she use a mouth
guard while she slept and she found that using it helped her sleep.

[34]        
She started massage therapy in 2008 for her neck, jaw and hip. She found
that this eased her pain somewhat and increased her flexibility.

[35]        
She was able to do more work around her home in 2008, and in 2009 she
started walking more for exercise. She still found that it was difficult to
stand for long periods of time. She continued to experience pain but she said
that with exercise and massage the pain was eased somewhat. She described her
pain as going from moderate to severe every day.

[36]        
She described her pain as being on the left side of her neck, her arm,
and the left side of her jaw and head. As she became more active she noticed
pain in her back and her hips.

[37]        
In March 2009 she visited a chiropractor, Dr. Gavin Shong, who had been
recommended to her by her massage therapist. He treated her lower back. During
2009 she went to Dr. Shong once a week.

[38]        
She visited Dr. Currie, an orthopaedic surgeon, in April 2009 to help
with her lower back pain.

[39]        
Dr. Currie provided a report of his consultation with the plaintiff to
Dr. Petrovic on April 23, 2009. Dr Currie diagnosed the plaintiff as
having a “fairly well established” chronic pain syndrome. It appears that he
found no organic basis, making it difficult for an orthopaedic assessment. His
report indicates that he told the plaintiff to wean herself off passive
modalities and to concentrate on a self-directed active daily exercise program
to increase her mobility. In cross-examination the plaintiff said she did not
remember being told this by Dr. Currie and expected that she would have heard from
Dr. Petrovic about Dr. Currie’s recommendations and if this had been
recommended by Dr. Petrovic, she would have done it.

[40]        
In the middle of 2009 she began acupuncture treatments and continued
those until January 2011. She found that the treatments helped ease her pain
somewhat but discontinued the treatments because her acupuncturist advised her
that she needed emotional help rather than acupuncture treatment.

[41]        
In October 2009, Dr. Petrovic referred her to a pain clinic at St. Paul’s
Hospital in Vancouver. She is currently on the wait list and expects to be
accepted into the clinic a few months after this trial.

[42]        
In 2010 she increased her exercise by walking with her children to
school and walking to do her grocery shopping. She continued to experience pain.

[43]        
She says she has not been able to venture to work since the accident.

[44]        
The plaintiff continues to use prescribed medication for her pain
including Zopiclone to sleep every night, Gavapentin three times a day and
Tylenol 3 once each day. These medications were prescribed for her by Dr.
Petrovic.

[45]        
During and since 2010 she has increased her physical activities around
her home and does some exercise. She uses a yoga ball and a dumb-bell about
half an hour in the morning and half an hour each evening. She has also engaged
in some T’ai Chi.

[46]        
The plaintiff testified that she still feels neck pain and pain in both
hips down to her legs. She says she is still unable to work and feels dependent
upon friends and family. She said that she has not inquired about obtaining any
part time work with Canada Post because her priority is to reduce her pain. She
said that she has not sought any alternative work that may be less physical. She
says she is hopeful that if the St. Paul’s pain clinic helps her to manage her
pain, then she will return to work at Canada Post. She says that in her current
emotional state she could not handle even less physical work such as that of a
secretary. Since the accident she says she has had difficulty focusing on any
work.

[47]        
Under cross-examination, the plaintiff did not agree that she was
describing her pain as worse than it really was. She did agree, however, that
her condition has improved since the accident occurred. As a result, she has
been walking more and going to her appointments without assistance but says
that she still experiences pain. She has also been helping her children more at
school but says she still needs help from her daughters with household chores
such as removing her clothes from the washing machine.

Expert Evidence

Medical Evidence

[48]        
Dr. Dana Petrovic testified. She was the plaintiff’s family physician
from June 2005 until March 2010 when she left private practice. Based on her
education and experience I accepted her as an expert in the field of family
medicine. A significant part of her private practice involved treating patients
who had been injured in motor vehicle accidents.

[49]        
Dr. Petrovic’s letter of September 30, 2007, to plaintiff’s counsel and
her clinical notes of visits with the plaintiff were filed as exhibits. Her letter
states that at the time of her initial consultation, which was two days after
the accident, x-rays showed no acute injuries, but the plaintiff was
experiencing pain and had a limited range of motion in her neck, back and left
hip area. Dr. Petrovic prescribed the drug Percocet, a strong pain-killer, and
recommended rest for the plaintiff. Her letter and notes appear to be primarily
based on the plaintiff’s own description of her symptoms. Some statements of
opinion by Dr. Petrovic, such as “she cannot work,” I take to be a reflection
of what the plaintiff told her and not based on an objective evaluation.

[50]        
A review of Dr. Petrovic’s notes essentially reflects the plaintiff’s
testimony about how her condition progressed after the accident.

[51]        
At a consultation on October 2, 2008, Dr. Petrovic noted that the
plaintiff stated that she was in extreme pain and described the things that she
was unable to do. Dr. Petrovic also noted that the plaintiff refused a referral
to a psychiatrist regarding her pain.

[52]        
By October 28, 2008, Dr. Petrovic concluded that the plaintiff had a
complex pain syndrome and planned to refer her to a pain clinic. Dr. Petrovic
suggested a prescription for anti-depressant medication but the plaintiff
resisted any suggestion that she was suffering from depression despite multiple
symptoms observed by Dr. Petrovic.

[53]        
In cross-examination, Dr. Petrovic agreed that she accepted what the
plaintiff told her about her symptoms because their relationship was based on
trust. She also agreed that the plaintiff was not following the normal pattern
of someone who had suffered soft tissue injury in a motor vehicle accident. She
said that such patients usually recover more quickly from their injuries.

[54]        
While Dr. Petrovic said that she felt that something quite unusual was
going on with the plaintiff’s condition and she could not understand the
ideology of the pain, she did not believe that the plaintiff was acting
intentionally. She did agree that the plaintiff was highly resistant to seeing
anyone regarding the psychological component of her pain.

[55]        
Dr. Lisa Caillier testified as an expert in the field of physical
medicine and rehabilitation. She works as a medical doctor in that field at G.F.
Strong Institute in Vancouver. She has experience with patients suffering from
chronic pain with both a physical and emotional component.

[56]        
Dr. Caillier examined the plaintiff on October 19, 2009, and again on
May 25, 2011. In her report dated October 19, 2009, she described the plaintiff
as a “very vague historian”. It does not appear that the plaintiff was able to
provide a clear history of her complaints. She complained to Dr. Caillier of a
variety of musculoskeletal issues including neck pain, jaw pain and pain in other
areas of her body.

[57]        
On examining the plaintiff, Dr. Caillier said there were “non-organic
pain findings,” by which she meant that there was an underlying psychological
or emotional component to the pain.

[58]        
Dr. Caillier’s diagnosis was that the plaintiff had chronic pain
disorder which was predominantly soft tissue in nature. She also opined that
the plaintiff’s chronic pain symptoms likely negatively impacted her sleep,
mood and ability to function.

[59]        
Dr. Caillier said that the plaintiff exhibited “symptom magnification”
and explained that as meaning responses to testing which were beyond a normal
reaction in that all movements appeared to create pain. She did not mean that
the pain was not present but that there was an underlying emotional or
psychological component to the pain.

[60]        
She described the plaintiff as likely having an underlying mood disorder
which negatively impacted on her ability to cope with the pain as well as
worsening her sleep. She said that her cognitive complaints were likely to be a
result of poor sleep, mood, anxiety, pain and lack of functional interaction
with the environment.

[61]        
Dr. Caillier noted the plaintiff’s involvement in a previous motor
vehicle accident on April 10, 2004, which gave rise to symptoms including
sensory disturbances and pain issues.  She went on to state the following:

It is my opinion that, in part, Ms. Mohan’s ongoing soft
tissue symptoms are as a result and attributable to the motor vehicle accident
of May 14, 2007. However, the underlying emotional and psychological issues as
well as maladaptive behavioural response to the pain are further amplifying her
symptoms and having a negative impact on her recovery to date.

It is my opinion that Ms. Mohan’s pre-existing degenerative
changes within the cervical and lumbar spine were likely aggravated in the
motor vehicle accident of May 14, 2007. It is my opinion that the mechanical
symptoms are not the main feature of Ms. Mohan’s neck and back pain.

It is my opinion that the motor
vehicle accident of May 14, 2007 had a negative impact on Ms. Mohan’s emotional
and psychological well-being resulting in impaired coping and management of her
symptoms.

[62]        
With regard to her prolonged period of recovery, Dr. Caillier said:

It is my opinion that Ms. Mohan’s lack of activity and
reliance on others immediately following the motor vehicle accident only served
to harm her recovery further, rather than hasten it.

It is my opinion that Ms. Mohan’s lack of physical activity
and regular strengthening and endurance-building exercises is further having a
negative impact upon her chronic pain, cognitive functioning, mood and sleep.

…unless Ms. Mohan chooses to increase her activity by
participating in active rehabilitation program (sic) as well as continuing this
on independently and undergoes further treatment of sleep and psychological
issues, her prognosis to recover from these injuries is poor.

If Ms. Mohan chooses to not be
active and continues to favor the left side as well as prevent herself from
doing activities, her symptoms will only continue to progress and she will not
experience any recovery.

[63]        
When asked in cross examination about these comments by Dr. Caillier,
the plaintiff said she did not remember being told this and said that she has
not engaged in an active rehabilitation program.

[64]        
In her report dated May 26, 2011, Dr. Caillier noted that the
plaintiff’s complaints continued to be similar to those expressed on October
19, 2009. She reported that the plaintiff continued to have non-organic pain. She
said that the plaintiff had suffered soft tissue injury involving the neck,
chest, posterior shoulders, low back and lateral hip and gluteal muscle regions.
She also reported that the symptoms attributable to the previous accident of
April 10, 2004, had probably been exacerbated by the accident in 2007.

[65]        
Dr. Caillier again diagnosed the plaintiff as having chronic pain
disorder. She again reported symptom magnification and other findings that
suggested a psychological and emotional component to her pain resulting in a
maladaptive pain response. She describes the plaintiff as having an ongoing
psychological dysfunction that accounted for the majority of her physical
symptoms. She also reported that her soft tissue physical symptoms are made
worse by her poor state of physical conditioning. Although the plaintiff had
been involved in some yoga and stretching classes she was not exercising enough.

[66]        
In her recommendations in her second report, Dr. Caillier said:

Ms. Mohan needs to be exercising
regularly. She is not doing this at the present time. The breathing techniques
and intermittent yoga practice that she is doing within her home are not enough
to manage her physical symptoms. Ms. Mohan would benefit from being involved in
a pool-based exercise program. She would likely benefit from being involved in
a gentle aqua fit program. The goal of exercise is to manage her physical
symptoms as well as to positively impact upon her emotional well being.

[67]        
In cross-examination the plaintiff said she had received Dr. Caillier’s
reports but she did not remember Dr. Caillier making these comments or
recommendations. She said she has not been involved in a pool-based program.

[68]        
Dr. Caillier also recommended that the plaintiff enroll in a
comprehensive pain program.

[69]        
Dr. Caillier was not of the opinion that the plaintiff was intentionally
exaggerating her pain and was satisfied that the plaintiff’s pain was real.

[70]        
Dr. Bruce Blasberg testified as an expert in oral medicine. He is a
member of the College of Dentists of B.C.

[71]        
Dr. Blasberg did not examine the plaintiff and prepared his report dated
July 4, 2011, based on records provided to him by plaintiff’s counsel. He
commented on the possible sources of joint pain in the jaw and opined that had
it not been for the motor vehicle accident on May 14, 2007, the plaintiff would
not likely have developed the reported jaw disorder. He noted from the records
reviewed that the hospital records referred to the plaintiff’s jaw pain on the
day of the accident and there was no indication of a prior history of jaw pain.
In cross-examination, Dr. Blasberg agreed that the plaintiff had not been
diagnosed with any fracture to the jaw or any bone trauma or head injury. He
also agreed that it would have been preferable if he had seen the plaintiff
personally before preparing his report.

[72]        
Dr. Olli Sovio is an orthopedic surgeon licensed in B.C. and California.
I accepted him as an expert in that field. He examined the plaintiff on
December 9, 2010, and prepared a report for these proceedings dated
December 16, 2010.

[73]        
Dr. Sovio opined that the plaintiff’s complaints related to soft tissue
injuries.  He was not able to pinpoint any physical injury that would cause her
pain. He described the plaintiff’s complaints as so widespread that they seemed
to involve the entire body. He noted some exaggeration of symptoms such as
describing her pain as 10 out of 10 on a scale of 1 to 10. He said such a
description would normally mean that the person would be hospitalized. He said
that the plaintiff said she could not move her neck without pain, but noticed
that when she got up from a prone position she moved her neck, apparently
without pain. This led him to consider the possibility that there were
non-physical sources of her complaints.

[74]        
Dr. Kevan Shong testified as a chiropractor. He started treating the
plaintiff on April 1, 2009, and continued until May 2011. He says that she
experienced some temporary relief from the treatments he provided to her. He
did not know why the plaintiff stopped seeing him.

[75]        
William Hardman testified. He described himself as a doctor of
traditional Chinese medicine and acupuncture. He has treated patients who have
had symptoms of chronic pain disorder. Mr. Hardman began treating the plaintiff
in July 2009 using acupuncture and acupressure techniques.

[76]        
The plaintiff attended for treatments until 2011 when Mr. Hardman
decided that her lack of improvement did not justify continuing treatment. He
had concluded that she had post-traumatic stress disorder and needed a
different form of treatment.

[77]        
Ms. Jeanie Bezdan, a registered massage therapist, has experience
treating patients with injuries from motor vehicle accidents and has treated
persons with chronic pain disorder. She testified that she began treating the
plaintiff in June 2008 and continued until August 2011, during which time she
treated the plaintiff 31 times. She said the plaintiff would initially
experience some relief from her pain symptoms but her pain would return before
her next treatment. She said that her report of the plaintiff’s pain is only
based on what the plaintiff told her. Ms. Bezdan wanted the plaintiff to work
with a kinesiologist so that she could develop an appropriate exercise program.
As far as she knows, the plaintiff did not see a kinesiologist.

[78]        
Ms. Micheline Wong, a physiotherapist, testified. She has experience
treating patients with chronic pain disorder and treated the plaintiff in 2007
and 2008. She worked on the plaintiff’s range of motion and performed some
stretching and strengthening techniques. After 16 sessions, the plaintiff’s
doctor did not recommend any more active treatment and she also was of the view
that there was little improvement. Ms. Wong discontinued treatments because Dr.
Petrovic advised her that the plaintiff should not have any more “active
treatments.”

[79]        
Dr. Stephen Anderson testified. He is a psychiatrist, and I accepted him
as an expert in the field of psychiatry. His experience includes forensic
psychiatry and medical legal work. He has treated patients with chronic pain
disorder. Of the patients he sees, he said that perhaps 20% to 30% have been
diagnosed with chronic pain disorder.

[80]        
He first examined the plaintiff on May 1, 2008, and carried out a
psychiatric assessment. He diagnosed the plaintiff with chronic pain disorder. He
described that as meaning the experience of pain by the plaintiff for more than
six months. Dr. Anderson opined that the plaintiff would not likely have
developed her “constellation” of physical, cognitive and emotional difficulties
had she not been injured in the accident of May 14, 2007.

[81]        
Although he did not find evidence that psychological factors played a
significant role, in order to determine the role of psychological factors in
her pain, Dr. Anderson recommended that she be seen by a psychologist with
experience in assessing patients with chronic pain. He also was of the view
that she would benefit from seeing a psychologist to learn pain-coping
strategies. He also suggested that she engage in regular aerobic exercise. He
recommended that she be referred to a rheumatologist in relation to the complaints
of pain throughout much of her body and a neurologist in respect of her
complaints of headache pain. He also said that having experienced pain for more
than one year, she would be best treated in a multidisciplinary pain clinic
where both physical and emotional factors could be addressed.

[82]        
In cross-examination the plaintiff said she had received Dr. Anderson’s
reports but did not remember those recommendations by Dr. Anderson. She said
she has not seen a psychologist.

[83]        
Dr. Anderson next assessed the plaintiff on June 16, 2011. His opinion
of her condition changed. He reported that the plaintiff had developed a major
depressive disorder. He explained that major depressive disorder commonly
occurs in patients who have chronic pain disorder. He said that in this case
that was because the plaintiff has experienced pain for over four years, which
has worn her down both emotionally and physically.

[84]        
Dr. Anderson said that her depressive symptoms overlapped with her
symptoms of chronic pain disorder and included fatigue, insomnia, tearfulness,
suicidal thinking, hopelessness, helplessness, loss of interests, weight gain,
reduced cognitive functioning, guilt feelings, social withdrawal and low
self-esteem.

[85]        
Dr. Anderson again recommended that the plaintiff receive therapy from a
psychologist with experience treating chronic pain disorder and provided her
with two names. He also recommended that she be referred to a treating
psychiatrist for pharmacotherapy as well as a comprehensive pain clinic.

[86]        
Dr. Anderson opined that the plaintiff’s pain was neither intentionally
produced nor feigned. He remained of the view that her physical, cognitive and
emotional difficulties likely developed from her injuries in the accident of
May 14, 2007.

[87]        
Because he diagnosed the plaintiff with chronic major depressive
disorder in addition to chronic pain disorder, Dr. Anderson said that the fact
that the plaintiff had not responded to treatment with anti-depressant
medication bodes poorly for her long-term psychiatric prognosis. He opined that
if his recommendations were followed, the plaintiff’s prognosis would likely
improve but it is unlikely that she would return “to her pre-morbid level of
emotional functioning and will remain emotionally fragile on a long-term
basis.”

[88]        
Dr. Anderson said that he saw no evidence of what he described as
conscious secondary gain, which would include making things up to achieve
monetary gain, nor any evidence of malingering. Although he opined that her
pain was real, he also said that he could not rule out malingering. He said
whether she was malingering was up to this Court to decide.

[89]        
Dr. Maelor Vallance was called by the defendants. He is a licensed
psychiatrist in B.C. and a clinical Professor Emeritus at the University of
British Columbia. He graduated in the Faculty of Medicine at Glasgow University
and began practising in Canada in 1964. He has retired from practice but
continues to do medical-legal evaluations. He has treated many patients with
chronic pain disorder.

[90]        
He assessed the plaintiff on December 14, 2009. He reported that the
amount of pain the plaintiff described was excessive in light of the nature of
the accident and elapsed time since the accident as well as the objective
physical findings. Because her pain had continued beyond the time period that
would have been expected in the circumstances, he concluded that psychological
factors were involved.

[91]        
He noted that while an active exercise program had been recommended by
some of her advisors, she did not appear to have followed those recommendations.
As a consequence, he said that her physical deconditioning was likely now a
factor in the continuation of her symptoms.

[92]        
Dr. Vallance agreed with Dr. Anderson that the plaintiff had not developed
post-traumatic stress disorder. He concluded that the appropriate diagnosis of
the plaintiff was an “adjustment disorder” which is a reaction to stress as
well as a depressed mood. He said that a pain disorder is accompanied by the
same factors as an adjustment disorder. How one would describe her condition
would depend somewhat on whether your focus was on the pain or the
psycho-social factors.

[93]        
He said the plaintiff had considerable fear of pain and was
overprotective of herself. She also appeared to be under a great deal of stress,
partly from an abusive relationship with her ex-husband and the need to support
her three children. Her fear that she could not look after herself and her
children contributed to her depression.

[94]        
Dr. Vallance agreed that the plaintiff’s complaints of pain, in excess
of what might be expected from the initial trauma, are consistent with chronic
pain disorder.

[95]        
Dr. Vallance testified that the pain was real and while it can only be
determined subjectively, he accepted it at face value. He said that pain may
still be experienced by someone even though the physical source of the pain has
gone.

[96]        
The defendant called Dr. Philip Teal, a neurologist, to testify. I
accepted Dr. Teal as an expert in the field of neurology. He has
experience with patients with chronic pain and noted that in this area of
medicine there is an overlap between psychiatry and neurology.

[97]        
Dr. Teal conducted a neurological evaluation of the plaintiff on June
23, 2011. He noted that throughout the evaluation the plaintiff demonstrated
overt pain behavior with grimacing, sighing and crying spells. However, he said
that the plaintiff also demonstrated a full range of cervical and lumbar
movement without apparent restriction. She was able to get in and out of her
chair easily and to fully flex to place items on the floor. He also noted
considerable overreaction to non-painful stimuli.

[98]        
Dr. Teal’s opinion was that the plaintiff did not sustain any
neurological injury. He also opined that it was unlikely that she sustained a
mild traumatic brain injury.

[99]        
Dr. Teal reported that, based on his review of the records of the
ambulance crew, it was probable that the plaintiff sustained soft tissue
injuries to her neck, and possibly to her low back as well as other soft tissue
injuries to extremities. He also concluded that she sustained a Grade II
cervical strain as a result of the accident. He said it was also possible that
she sustained a soft tissue injury or myofascial strain to the thoracolumbar
spine. By this he meant a typical strain from stretched or torn muscles in the
area of the chest and low back. He said it was impossible to determine the
severity of any myofascial injury to her lumbar spine due to her abnormal pain
behaviour and marked pain amplification as well as the presence of inconsistent
non-anatomic and non-organic findings on the physical examination.

[100]     He
described her behaviour in respect of pain as being enormously inconsistent. He
said the plaintiff would exhibit pain reactions to back movement but within
seconds she would bend over and pick something up without any indication of
pain. He also said that she lacked co-operation in strength testing.

[101]     Dr. Teal
opined that the plaintiff’s primary problems are related to symptoms of pain
that are significantly amplified by psychological factors. Her reports of
diffuse severe pain, Dr. Teal reported, were inconsistent with the nature of
the injury sustained or the severity of the trauma. He said that the pain she
described would be more consistent with the passing of a kidney stone or the
pain associated with childbirth than the pain of a myofascial injury.

[102]     Dr. Teal
concluded that the plaintiff did not fulfil the criteria of a chronic pain
disorder despite her multiple symptoms of pain. He said that he could not
exclude the possibility of secondary gain and psychological factors as being
the major cause of the plaintiff’s pain. Dr. Teal’s opinion was that mood
disturbances, psychological factors and issues of secondary gain were likely
the major contributors to her diffuse and widespread pain. He said in view of
the apparent forces involved in the motor vehicle accident and that her
injuries appeared to be entirely soft tissue in nature he would have expected
her to have been off work for no more than three months due to physical
injuries.

[103]     Dr. Teal
said that after he had evaluated the plaintiff and ruled out organic issues
giving rise to pain he would normally refer the patient elsewhere. He would not
necessarily defer to a psychiatrist in arriving at a diagnosis and says that he
would reach his own conclusion. While he noted inconsistent behavior in
relation to her complaints of pain, he said that some of his observations were
consistent with chronic pain disorder. He agreed that her pain could be
significantly amplified by psychological disorders. He said that the presence
of malingering is a matter for the judge to determine.

[104]     Dr. Teal
said that because of the obvious inconsistencies in her behaviour which she
claimed caused her pain and her poor co-operation with his evaluation, he could
not exclude secondary gain as being a factor with the plaintiff. By secondary
gain he meant something like work avoidance.

Evidence Regarding Occupational Capacity of Plaintiff

[105]     Megan
Stacey, an occupational therapist, was called to testify by the plaintiff. Based
on her experience I accepted her as an expert in the field of occupational
therapy.

[106]     Ms. Stacey
conducted a “physical capacity evaluation” of the plaintiff on May 2, 2011,
and prepared a “cost of future care” analysis. In preparing her report, Ms.
Stacey relied on the reports of other medical personnel including the diagnosis
of adjustment disorder by Dr. Vallance and chronic pain disorder by Dr.
Caillier.

[107]     The
physical capacity evaluation related to the plaintiff’s physical strengths and
limitations regarding employability.

[108]    
Ms. Stacey concluded that:

In my opinion, with consideration
only to her present physical capacity, Ms. Mohan is considered to be
non-employable at the present time. While she demonstrated the ability to
perform some aspects of limited strength work during this evaluation, it is
this evaluator’s opinion that her activity tolerance is such that she does not
demonstrate the ability to meet the standards of safety and productivity of
most workplace settings. Based on her symptom response and her difficulties
with pain management, it is also a concern as to whether she would be capable
of attending a place of work consistently and/or reliably.

[109]     Ms. Stacey
testified that she found the plaintiff to be non-employable in any job at the
time of her report which was July 15, 2011. She said she was not qualified to
express an opinion regarding the prognosis for the plaintiff.

[110]     Ms. Stacey
also reported that pain appeared to be a significant issue for the plaintiff
and that she considered herself to be limited in her activities by pain. She
reported that the plaintiff’s participation in the testing procedures was
limited at times by the plaintiff’s response to pain. Ms. Stacey concluded that
the plaintiff did not provide full effort in all aspects of testing. As a
result, she reported that her assessment may not be representative of the
plaintiff’s maximum physical capacity although it was representative of her
current functional ability considering her experience of pain.

[111]     Ms. Stacey
also prepared a cost of future care analysis and considered the effects of the
plaintiff’s injury on her ability to perform the activities of daily living and
then recommend services, equipment and supplies to enable the plaintiff to
function at a level that is as close as possible to her pre-injury status.

[112]     Ms. Stacey
testified that she assumed that the plaintiff would benefit from the various
treatment recommendations but would not return to pre-accident functioning. She
said in making this assumption she relied on the medical opinions provided to
her in relation to the plaintiff.

[113]     Ms. Stacey
sets out a summary of her recommendations and the estimated costs associated
with following them in Appendix B to her report which is Tab 7 of Exhibit 2.

[114]     Ms. Stacey
did not visit the work place of the plaintiff at Canada Post, nor did she
contact Canada Post to discuss the plaintiff’s work.

[115]     In cross
examination, Ms. Stacey agreed that effort testing is important in determining
the reliability of the tests and agreed that the plaintiff did not provide full
effort in all aspects of testing. She nevertheless opined that the tests were
reliable. She also agreed that her evaluation was a one-day assessment with one
follow-up phone call and did not involve a continuing evaluation.

[116]     While Ms.
Stacey noted five inappropriate symptoms of pain, she did not record what those
symptoms were and said they would not assist in the functional evaluation.

[117]     In
reporting the symptom profile of the plaintiff where on a scale of 1 to 10, 10
is the worst pain that the person can imagine, the plaintiff had reported pain
of between 8.75 and 9.25 in different areas of her body. Ms. Stacey did not
consider that this level of pain required that the plaintiff attend a hospital.

[118]     The
defendants called Mr. Gerard Kerr, an occupational therapist, to provide a work
capacity evaluation. I accepted him as an expert in the field of occupational
therapy.

[119]     Mr. Kerr
carried out an assessment of the plaintiff’s functional abilities and
limitations to determine her work capacity on May 14, 2011.

[120]     In the
summary of his findings, Mr. Kerr noted that the plaintiff participated in
effort testing with variable levels of effort, making that testing challenging.
At times, Mr. Kerr reported, her performance improved under distraction. Accordingly,
he said that the test results would only show the plaintiff’s minimal
functional abilities and suggests that she is physically more capable that she
demonstrated or perceived herself to be. He noted that there was a strong
psychological component to her presentation that made an accurate determination
of her functional abilities not possible. He said, however, that he did not draw
any conclusions as to whether the plaintiff was deceiving him and said that
determination is left to the trier of fact.

[121]     Mr. Kerr
concluded that the plaintiff would not tolerate the physical demands required
of her job at Canada Post. While he reported that the plaintiff did not
perceive herself as capable of performing any work, his only comment regarding
other work possibilities was that he could not determine her capacity for part-time
work.

[122]     Brian
Gorman, a superintendent with Canada Post, was called by the plaintiff to
testify. He described the nature of the work that the plaintiff would have
performed at the parcel distribution centre in Richmond. He was familiar with
the plaintiff and was her supervisor when she was hired. She worked three days
a week and was paid $24 per hour as a parcel handler. He described her as a
competent worker and did not observe any problems with her work. He did not
recall any absenteeism on her part that was out of the ordinary. He recalled
that she was injured in 2007 when a container fell on her foot, but he did not
notice any problems with her work after she returned to her job. He said that
the normal progression for an employee would be to start as a casual employee
and then progress to part-time and finally full-time employment. He did not
note anything on the part of the plaintiff’s work that would have placed her
job in jeopardy.

[123]     In
cross-examination he said that Canada Post does have a graduated return to work
program for anyone who has been injured. That program involves coming back and
working on light duties and then gradually working up to more demanding
physical duties. He said that if someone was incapable of standing for a long
period of time then they would be assigned to another area where standing would
not be required. He said that to participate in this program an employee would
require a medical opinion that they were suitable for the return to work. He
said that a return to work would also involve liaison between Canada Post and
Sun Life as the disability insurer.

[124]     He said he
had last spoken with the plaintiff in 2007 and had not spoken to or seen her
since that time. He said that she has not contacted him about the possibility
of returning to work.

[125]     A friend
and neighbour of the plaintiff for 14 years, Ms. Theresa Anderson, testified. She
described the plaintiff before the motor vehicle accident as a happy normal but
reserved person. She saw her after the accident and said she looked “terrible”
and was all swollen and would not talk or move. She said the plaintiff was an
“emotional wreck” and would cry frequently. She admitted that she did not know
the type of injuries suffered by the plaintiff in the accident. Ms. Anderson
said that over time she noticed that the plaintiff was improving and saw her
smiling and appearing quite happy but she was not as active as she had been
before the accident.

Economic Evidence

[126]     The
plaintiff’s income tax information for the years 2001 to 2008 was tendered as
evidence. Her gross earnings for each of those years ranged from $15,200 in
2001 to $21,875 in 2008.

[127]     Mr. Curtis
Peever, an economist with Associated Economic Consultants Ltd., provided a
written report, which was filed as Tab 9 of Exhibit 2. It included income
multipliers that could be used to calculate the present value of future
employment income. His expertise was not challenged and he was not called to
give viva voce evidence. The defendants did not challenge the report of
Mr. Peever.

Submissions

Plaintiff’s Submissions

[128]     Plaintiff’s
counsel submits that there is a consensus among the medical experts that the
plaintiff suffers from chronic pain disorder stemming from both a general
medical condition and from psychological factors. Dr. Caillier, Dr. Anderson
and Dr. Vallance have all diagnosed the plaintiff with chronic pain disorder.
The medical experts did not find that the pain described by her is faked. Dr.
Petrovic and Dr. Caillier both testified that they accepted the plaintiff’s
pain as being real. Dr. Vallance testified that the plaintiff has a very
intense fear of pain which helped to explain her presentation. Dr. Teal states
that it was his opinion that the plaintiff’s primary problem related to
symptoms of pain that were being amplified by psychological factors. That
opinion would appear to rule out intentional feigning.

[129]     Counsel
submits that she presented her evidence in a very straightforward, credible and
candid manner. She was neither combative nor evasive in cross-examination.

[130]     With
regard to the plaintiff’s exaggerated pain responses noted by some of the experts,
the experts have stated that this is a common finding in patients with chronic
pain disorder.

[131]     Counsel
submits that there should be no deduction for the plaintiff’s failure to
mitigate. The defendant has the onus of proving that the plaintiff failed to
mitigate her losses.

[132]     While Drs.
Anderson, Currie and Caillier recommended an active rehabilitation program, Dr.
Petrovic did not, and saw it as of questionable benefit. The plaintiff relied
on Dr. Petrovic as her primary care giver.

[133]     Counsel
also argues that the plaintiff was motivated to do what was necessary to get
better and paid for massage therapy, physiotherapy, chiropractic treatment and
acupuncture. Counsel also says that the evidence did not clearly establish that
an active rehabilitation program would have resulted in a benefit to the
plaintiff.

[134]     Counsel
says that the defendant has failed to prove that the plaintiff failed to
mitigate by not participating in an active rehabilitation program but if a
failure to mitigate is found by the court the appropriate reduction in damages
would be 10%.

[135]     With
regard to the plaintiff’s failure to seek psychological intervention as
recommended by Dr. Anderson, counsel submits that the plaintiff would have had
to fund this out of her own pocket and it was very expensive. I do not recall
her evidence to that effect but rather that she did not remember Dr. Anderson’s
recommendation to attend a psychologist with experience regarding chronic pain
disorder.

[136]     Counsel
submits that the defendant did not prove that the plaintiff failed to mitigate
by obtaining psychological treatment. If the Court finds that she did fail to
mitigate in that fashion, then the reduction should only be 10% because of the
uncertainty of the resulting benefits.

[137]     The
plaintiff claims under the following heads of damages:

1)    Non-pecuniary
damages;

2)    Past income
loss/opportunity;

3)    Future loss of
income or earning capacity;

4)    Costs of future
care; and

5)    Special damages

[138]     Plaintiff’s
counsel submits that the plaintiff’s injuries have had a profound effect on the
quality of her life and that a reasonable award to compensate the plaintiff for
her non-pecuniary loss is $150,000. In determining the range, the plaintiff
relies on the following decisions of this court: Felix v. Hearne, 2011
BCSC 1236; Chawdhry v. Burnaby (City), 2008, BCSC 1337; Morlan v.
Barrett, 2010 BCSC 1767; and Marois v. Pelech, 2007 BCSC 1969 (aff’d
at 2009 BCCA 239).

[139]     Counsel
submits that the plaintiff’s injuries have rendered her totally disabled since
the date of the accident until the date of the trial. In her last two full
years of employment with Canada Post, the plaintiff’s income was slightly more
than $30,000 per annum. On that basis the plaintiff has lost gross wages of
$133,845.44 during the period of her disability. After applying the appropriate
tax deduction of 20%, her net wage loss totals $107,076.35. Counsel submits
that the plaintiff’s receipt of disability insurance benefits and Canada
Pension Plan benefits should not be deducted from this award of damages for
wage loss.

[140]     With regard
to her future loss of earning capacity, the plaintiff submits that her injuries
will likely render her unemployable for the balance of her working life. Counsel
says this is supported by the evidence of Dr. Caillier and Dr. Anderson.

[141]     Counsel
argues that if the plaintiff had moved to full-time hours, she would likely
have been earning $50,000 per annum but for the accident and therefore it is
reasonable to calculate her future loss based on a pre-accident earning
potential of $40,000. Using the income multiplier provided by Curtis Peever,
the present value of an annual income of $40,000 until the plaintiff reaches
age 65, allowing a contingency of 24% for labour market conditions and
employability, is $520,890. Allowing for the general uncertainties associated
with attempting to quantify the future loss of earning capacity, the plaintiff
submits that a reasonable award in this category would be $500,000.

[142]     With
regard to the cost of future care, the plaintiff relies on the recommendations
of Megan Stacy and says that they are reasonably necessary to preserve the
plaintiff’s health and lifestyle.

[143]     The
plaintiff also relies on the cost of care multipliers supplied by Curtis Peever
which, when applied to Ms. Stacy’s recommendations, range from a low of
$547,941 to a high of $1,157,491. Accepting that a significant contingency
should be applied to allow for the fact that some of the recommendations may
end up being unnecessary, or only necessary for a shorter period of time, the
plaintiff submits that an award of $175,000 is reasonable. This is a 50%
reduction of the low estimate of the present value of future care costs.

[144]     Special
damages claimed are set forth in Tab 18 of Exhibit 1 and an updated list is
found in Exhibit 6. The total claimed is $30,168.17.

Defendants’ Submissions

[145]     The
defendants’ counsel submits that where, as in this case, symptoms of injuries
have continued well beyond the normal recovery period for such injuries and
there is a lack of objective evidence to determine the source of the symptoms,
the credibility of the plaintiff is a crucial issue.

[146]     Counsel
points to a number of examples of exaggerations by the plaintiff that were
noted by the experts such as her lack of effort during physical capacity
assessments, pain magnification or amplification, lack of cooperation on
examination and inconsistent pain behaviors. Counsel also gave the example of
the plaintiff telling some of her medical advisors that she was rendered
unconscious by the accident and had a fractured jaw. There was no independent evidence
that the plaintiff was rendered unconscious by the accident or that she had
suffered a broken jaw.

[147]     The
defendants point out that the plaintiff has only produced one collateral
witness, her former neighbour Ms. Teresa Anderson, who had only seen the
plaintiff once a month during the past year and hardly at all for the preceding
10 months. Ms. Anderson herself had suffered some injuries in the past and
recommended exercise in a swimming pool to the plaintiff. Asked about the
plaintiff’s pain, Ms. Anderson says that she believes the plaintiff’s
complaint but says the plaintiff had recently appeared happy and changed for
the better. The defendants say that this evidence falls short of being
convincing collateral evidence.

[148]     With
regard to non-pecuniary damages, the defendants accept that the plaintiff has
suffered moderate soft tissue injuries with associated depression as a result
of the accident. However, the defendants say that she has grossly exaggerated
and feigned her symptoms of pain to maximize her recovery of damages. The
defendants say that an appropriate award for non-pecuniary damages would be
between $40,000 and $50,000. If the Court finds the plaintiff to be a credible
witness and someone who has not grossly exaggerated her condition but does in
fact suffer from chronic pain disorder as a result of the accident, then an
award in the range of $65,000 to $70,000 would be appropriate. The defendants
referred to decisions of this Court in support of that position, namely Niloufari
v. Coumont, 2008 BCSC 816, and Wahl v. Sidhu, 2010 BCSC 1466.

[149]     With
respect to past loss of income, the defendants say that the plaintiff has never
contacted Canada Post about the possibility of returning to work in any
capacity since the accident occurred over four years ago. The defendants say
also that the plaintiff’s reason for returning to work until she was without
pain was not realistic as many people work with some pain. Brian Gorman’s
evidence was that Canada Post will accommodate injured employees by giving them
jobs that are less physically demanding. He also said that Canada Post has a
program involving a gradual return to work for such employees. The plaintiff
did not inquire about these possibilities. The defendants submit that the
plaintiff grossly exaggerated her injuries and should have been able to return
to work long before this trial. Allowing the plaintiff one year off work as a
result of her injuries, the defendant considers that an award of $30,000 would
be appropriate in this category of damages provided that the Court accepts that
the plaintiff suffered a chronic pain disorder.

[150]     Addressing
the plaintiff’s claim for future loss of earning capacity, the defendants say
that the plaintiff has done nothing to attempt a return to work. While she did
testify that she wanted to return to work and start working full-time, the
defendants say that there was no corroborative evidence from any collateral
witness or former co-worker. The defendant submits that the plaintiff would be
employable if she embarked on a more dedicated and motivated active treatment
regime. The defendants say that an award of $30,000 for time off for one year
to allow further rehabilitation is reasonable in the circumstances. If the Court
does not accept the evidence of a chronic pain disorder, then they say that
there should be no award under this head of damages.

[151]     With
regard to the cost of future care, the defendants agree that the plaintiff will
likely benefit from participation in a chronic pain clinic and an active,
supervised rehabilitation program. The defendants say, and the plaintiff
agrees, that the law in relation to this head of damages is clear. An award for
costs of future care must be medically justified and reasonable. (Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). The defendants say that there
is no medical basis to justify most of the items and treatment recommended by
Ms. Megan Stacey. The defendant points out that Dr. Caillier does not recommend
massage therapy or chiropractic treatment and does not even consider the additional
recommendations of Megan Stacey. Having failed to undertake several
recommendations of her medical advisors, the defendants also say that there is
no way of knowing that the plaintiff will participate in any of the programs
recommended by Ms. Stacey. Further, the defendants submit that little weight
should be given to Ms. Stacey’s opinion because she appeared to act more as an
advocate for the plaintiff than as an independent expert.

[152]     The
defendants submit that an award of between $15,000 to $18,000 would be
reasonable in this category. If the Court does not find the plaintiff to be
suffering with a chronic pain disorder, then they submit that there should be
no award under this heading.

[153]     The
defendants say that an award of $5,000 to $8,000 would be reasonable as special
damages because the plaintiff only experienced temporary relief from them. The
plaintiff testified that she did not even remember what the physiotherapist,
Ms. Micheline Wong, had recommended to her.

[154]     The
defendants also submit that there is clear evidence that the plaintiff has
failed to mitigate her damages. They say that her failure to mitigate is so
closely connected to her failure to return to work that it cannot be treated
only as a reduction to her claim for non-pecuniary damages.

[155]     The
defendants say that the plaintiff has a positive duty to mitigate by taking all
reasonable measure to reduce loss and damages caused by the defendant’s
negligence. This duty is based on the general proposition that a defendant
should not be held liable for damages that the plaintiff could reasonably have avoided.
(Hsu. v. Williams, 2011 BCSC 1412; Graham v. Rogers, 2001 BCCA
432). The defendants say that the plaintiff refused to follow certain
recommendations of her medical advisors that would have assisted her recovery. These
included not participating in an active rehabilitation program as recommended
by Dr. Caillier. Dr. Petrovic’s record of December 18, 2009, stated that
the plaintiff was then capable of being assessed for an active rehabilitation
program. Nevertheless, the plaintiff did not try to become more active.

[156]     With
respect to her psychological symptoms, Dr. Petrovic testified that the
plaintiff consistently refused her recommendations to see a psychologist or a
psychiatrist and take anti-depressant medication at an earlier stage following
her injury. Dr. Petrovic testified that in her view these steps would have
helped the plaintiff.

[157]     The
defendants submit that taking into account the effects of the plaintiff’s
refusal to accept a number of reasonable recommendations from her medical
advisors, the plaintiff’s damages under all heads should be reduced by between
30% and 40%, and cites the decision in Antoniali v. Massey, 2008 BCSC
1085, as support of this position.

Analysis

[158]     This case
went to trial approximately 4½ years after the motor vehicle accident in which
the plaintiff was injured. There is no question that the plaintiff suffered
soft tissue injuries from the accident. Had those injuries taken three or four
months to resolve, this litigation would most likely not have taken place. What
has led to this court case and a substantial claim for damages is that the
plaintiff asserts that she suffers from what is described as chronic pain
disorder long after her physical injuries from the accident have resolved.

[159]     Based on
the evidence of the medical experts it is apparent that chronic pain disorder
is a condition that involves both physical trauma and psychological factors.

[160]     The
diagnosis of chronic pain disorder is largely subjective in nature and based on
the plaintiff’s description of her condition to the medical practitioners
supported by some testing. The expert evidence is that this condition cannot be
objectively confirmed. If the plaintiff’s account of her condition as a result
of the accident is not convincing then the hypothesis upon which the expert
opinions are based is undermined. (see Samuel v. Chrysler Credit Canada Ltd.
2007 BCCA 431 at paras. 15, 49 and 50).

[161]    
In Yoshikawa v. Yu, [1996] 21 B.C.L.R. (3d) 318 at paras. 12-13, Lambert
J., as he then was, summarized the principles to be applied in assessing claims
of psychological injury as follows:

It is important to understand what is established and what is
not established by the decision in Maslen v. Rubenstein. I propose to
set out a number of principles extracted from the reasons of Mr. Justice
Taylor, for the Court, in the Maslen case. The first point is a
preliminary point and appears in Maslen at p. 133 under the heading “(a)
The Background”.

1.         The plaintiff must establish that the pain,
discomfort or weakness is “real” in the sense that the victim genuinely
experiences it.

The remaining ten points are drawn from the part of the
reasons headed “(b) The Basic Principles” at pp. 134 to 137:

2.         The plaintiff must establish that his or her
psychological problems have their cause in the defendant’s unlawful act.

3.         The plaintiff’s psychological problems do not
have their cause in the defendant’s unlawful act if they arise from a desire on
the plaintiff’s part for such things as care, sympathy, relaxation or
compensation.

4.         The plaintiff’s psychological problems do not
have their cause in the defendant’s unlawful wrongful act if the plaintiff
could be expected to overcome them by his or her own inherent resources, or
“will-power”.

5.         If psychological problems exist, or continue,
because the plaintiff for some reason wishes to have them, or does not wish
them to end, their existence or continuation must be said to have a subjective,
or internal, cause. (NOTE: I consider that this proposition must deal with the
conscious mind, otherwise it seems to me to beg the question; see my first
observation, later in this Part of these reasons.)

6.         If a court could not say whether the plaintiff
really desired to be free of the psychological problems, the plaintiff would
not have established his or her case on the critical issue of causation.

7.         Any question of mitigation, or failure to
mitigate, arises only after causation has been established.

8.         It is not sufficient to ask whether a
psychological condition such as “chronic, benign pain syndrome” is “compensable”.
Such a psychological condition may be compensable or it may not. The
identification of the symptoms as “chronic benign pain syndrome” does not
resolve the questions of legal liability or the question of assessment of
damages.

9.         It is unlikely that medical practitioners can
answer, as matters of expert opinion, the ultimate questions on which these
cases often turn.

10.       Mr. Justice Spencer, at trial in the Maslen
case, put the overall test quite correctly in these words:

[C]hronic benign pain syndrome will attract damages … where
the plaintiff’s condition is caused by the defendant and is not something
within her control to prevent. If it is true of a chronic benign pain syndrome,
then it will be true also of other psychologically-caused suffering where the
psychological mechanism, whatever it is, is beyond the plaintiff’s power to
control and was set in motion by the defendant’s fault.

11.       There must be evidence of a “convincing” nature to
overcome the improbability that pain will continue, in the absence of objective
symptoms, well beyond the recovery period, but the plaintiff’s own evidence, if
consistent with the surrounding circumstances, may nevertheless suffice for the
purpose.

I am sure Mr. Justice Taylor did
not consider that the “basic” principles which he set out exhausted all the
possibilities for the application of principle to the difficult problems in
these cases. The general principles which apply in relation to causation in law
will apply to psychological injury as they apply to physical injury.

[162]     Turning
first to consider whether the plaintiff’s expressed pain is “real”, the
defendants argue that the plaintiff has been dishonest and has grossly exaggerated
her symptoms and pain after the normal period of recovery for soft tissue
injuries.

[163]     Based on
the testimony of the medical experts I am satisfied that the pain described by
the plaintiff, in large part, is real and I do not find her to be dishonest. However,
in my view, she has exaggerated her symptoms to some degree.

[164]     Examples
of this exaggeration include her first visit to Dr. Petrovic when she was
carried into the doctor’s office by her husband because she said she was a
“paralyzed person” and could not move her body. Dr. Petrovic testified that in
all of her years of practice she had never encountered this behaviour from a
person who had suffered soft tissue injuries in a motor vehicle accident. This
visit was just two days after the accident and before the chronic pain disorder
had begun.

[165]     There are
other examples of exaggeration by the plaintiff. The plaintiff told some of her
medical advisors that she had been rendered unconscious and had broken her jaw
in the accident when there is no evidence that either had occurred. Dr.
Caillier described “symptom magnification” by the plaintiff, by which she meant
that the plaintiff showed more than a normal reaction as she described all of
her movements as creating pain. Dr. Sovio said that the plaintiff exaggerated
her pain when she said that on a scale of 1 to 10 her pain level was 10. Dr.
Sovio said that would normally require hospitalization. Dr. Teal testified that
the plaintiff overreacted to non-painful stimuli and demonstrated inconsistent
behaviour in relation to her reported pain. He also said that her reported pain
was more consistent with childbirth than with the soft tissue injuries that the
plaintiff had sustained. The exaggeration by the plaintiff will be considered
in the assessment of damages.

[166]    
With regard to causation, there is some evidence that the plaintiff had
pre-existing and on-going problems at the time of the accident. It appears that
before the accident the plaintiff maintained a somewhat sedentary lifestyle. Dr.
Caillier reported at page 6 of her second report that “…there was likely a
state of physical deconditioning that existed prior to the accident.” Further,
at page 5 of her second report, Dr. Caillier states:

It is my opinion that, in part,
Ms. Mohan’s physical symptoms are attributable to the motor vehicle accident of
May 14, 2007; however, in part they are also likely secondary to pre-existing
symptoms related to work related injury of which she had symptoms involving the
left lower extremity at the time of the motor vehicle accidents, as well as
having left-sided body symptoms stemming from the April 2004 pedestrian struck
motor vehicle accident.

[167]     Nevertheless,
Dr. Anderson’s opinion was that the plaintiff would not likely have developed
her “constellation of physical, cognitive and emotional difficulties had she
not been injured in the accident of May 14, 2007.”

[168]     Having
considered these opinions and the opinions of the other experts, I am satisfied
that the motor vehicle accident, which I have already determined to have resulted
from the defendant Mohan’s negligence, was largely, although not exclusively,
the cause of the plaintiff’s “constellation” of conditions. The plaintiff has
established on a balance of probabilities that the defendant’s negligence
materially contributed to her condition. I am also satisfied that the
plaintiff’s condition is not motivated by a desire for secondary gain. By that
I mean the third principle stated by Lambert J. I accept that the plaintiff
wishes to be free from her pain; however, her failure to mitigate, much like
the exaggeration of her symptoms, in my view should be considered in the
determination of damages.

[169]     Dr.
Anderson and Dr. Caillier both expressed the opinion that the plaintiff
suffered from chronic pain disorder. None of the medical experts said that the
plaintiff does not suffer from chronic pain disorder. The defendant’s expert
neurologist Dr. Teal opined that the plaintiff’s primary problems were related
to symptoms of pain which are significantly amplified by psychological factors.
At the same time, he agreed with counsel for the plaintiff that some of his
observations were consistent with someone with chronic pain disorder.

[170]     I am
satisfied that the plaintiff’s condition is properly described as chronic pain
disorder.

Damages

Mitigation

[171]     In my
view, the evidence establishes that the plaintiff failed to take certain steps
recommended by her medical advisors and, as a result, failed to mitigate her
loss.

[172]    
I have applied the tests in Chiu v. Chiu, 2002 BCCA 618, where
the Court of Appeal states at para. 57:

…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.

[173]     Dr.
Anderson recommended that the plaintiff participate in a supervised exercise
program. She did not follow that advice. I do not accept that because active
rehabilitation was not recommended by her family doctor, Dr. Petrovic, she need
not follow the recommendations of Dr. Anderson. I also note that as early as
December 18, 2009, Dr. Petrovic’s records state that the plaintiff was capable
of being assessed for an active rehabilitation program.

[174]     With
regard to the plaintiff’s psychological symptoms, in his report of May 8, 2008,
Dr. Anderson recommended that the plaintiff be seen by a psychologist with
experience in treating patients with chronic pain disorder. He recommended 20 treatments
of psychotherapy with a focus on pain-coping strategies. At that time, Dr.
Anderson’s long term prognosis was fair because he felt that the plaintiff had
not developed a major psychiatric disorder. She did not follow this
recommendation.

[175]     Three
years later, on June 16, 2011, Dr. Anderson concluded that the plaintiff had
developed a major depressive disorder. This led him to change his prognosis and
state that patients who have more than one psychiatric disorder (i.e. chronic
pain disorder and major depressive disorder) do not respond well to treatment.
Although Dr. Anderson was not asked to comment on the effects of the failure of
the plaintiff to follow his earlier recommendations, he again recommended that
the plaintiff receive 30 sessions of therapy from a psychologist with
experience in treating chronic pain disorder and provided her with the names of
two such qualified psychologists. The plaintiff did not follow those
recommendations. It might reasonably be inferred that if the plaintiff had
attended therapy sessions with a qualified psychologist as recommended by Dr.
Anderson on two occasions, she may not have developed the major depressive
disorder that resulted in a more negative prognosis by Dr. Anderson.

[176]    
Dr. Caillier also recommended that the plaintiff engage in more physical
activity including regular strengthening and endurance building exercises. The
plaintiff did not follow Dr. Caillier’s recommendations. The impact of not
following those recommendations is the subject of comment by Dr. Caillier:

If Ms. Mohan chooses to not be
active and continues to favor the left side as well as prevent herself from
doing activities, her symptoms will only continue to progress and she will not
experience any recovery.

[177]    
In Dr. Caillier’s report of May 26, 2011, she notes again:

Ms. Mohan needs to be exercising
regularly. She is not doing this at the present time. The breathing techniques
and intermittent Yoga practice that she is doing within her home are not enough
to manage her physical symptoms. Ms. Mohan would benefit from being involved in
a pool-based exercise program. She would likely benefit from being involved in
a gentle Aqua Fit program. The goal of exercise is to manage her physical
symptoms as well as to positively impact upon her emotional well being.

[178]     In respect
of the recommendations of both Dr. Caillier and Dr. Anderson, when cross
examined the plaintiff simply said she did not remember that they had made them
to her.  Considering the decision of the British Columbia Court of Appeal in Wahl
v. Sidhu, 2012 BCCA 111, I must determine if the cross-examination of the
plaintiff regarding her failure to follow the recommendations of her doctors
was sufficient to discharge the onus on the defendant of showing a failure to
mitigate on the part of the plaintiff.

[179]     In my
view, further questions to the plaintiff by the cross-examiner as to why she
did not follow the recommendations would have been superfluous. Having had the
opportunity to explain why she did not follow the recommendations, the
plaintiff said in each case that she did not remember that they had been made.
I do not consider that the defendant thereby failed to satisfy the requirement
of Wahl v. Sidhu.

[180]     In both of
his reports Dr. Anderson recommended that the plaintiff be referred to a
comprehensive multidisciplinary pain clinic. The evidence was that there was a
two-year wait list for the public clinic at St. Paul’s Hospital. Even though the
recommendation was made in May 2008, by the time of the trial, in October 2011,
the plaintiff had still not been enrolled in that clinic and only went on the
wait list in 2009.

[181]     The
clinical records of Dr. Petrovic show that that the plaintiff consistently
refused to take her recommendation to see a psychiatrist and start taking
anti-depressant medication at an early stage after the accident.

[182]     Counsel
for the plaintiff argues that in the East Indian community the culture is such
that the plaintiff would resist the diagnosis of a mental health disorder. The
only evidence of this is some testimony by Dr. Vallance, a psychiatrist, who
the Court does not consider an expert in East Indian culture. Plaintiff’s
counsel also argued that the cost of psychological counselling would have been
too much for the plaintiff. I do not recall that the plaintiff ever testified
to that effect. Rather, she seemed not to have recalled the recommendations
made by Dr. Anderson. The plaintiff was able to afford other forms of treatment
which she chose over the recommendations of the experts.

[183]     I rely on
the opinions of both Dr. Anderson and Dr. Caillier to conclude that their
recommendations might well have resulted in significant improvement to the
plaintiff’s condition had they been followed soon after they were made.

[184]     In my
view, the plaintiff’s failure to mitigate must be considered in relation to all
heads of damages.

Non-Pecuniary Damages

[185]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation awarded should be
fair to all parties and fairness is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough guide. Each case
depends on its own unique facts. (Trites v. Penner, 2010 BCSC 882).

[186]    
The approach to assessing injuries which depend on subjective reports of
pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R. 397 by
McEachern C.J. In referring to an earlier decision, he said:

In Butler v. Blaylock, (1981) B.C.J. No. 31, decided 7th
October, 1981,…I referred to counsel’s argument that a defendant is often at
the mercy of a plaintiff in actions for damages for personal injuries because
complaints of pain cannot easily be disproved. I then said:

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.

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.

[187]     Having
considered the cases referred to by counsel for both parties, and factoring in
the failure of the plaintiff to mitigate as well as her exaggeration of her
symptoms, I have concluded that an award of non-pecuniary damages should be $100,000.

Past Loss of Income

[188]     Dr.
Anderson’s opinion as of May 8, 2008, was that due to her pain the plaintiff
was “not likely competitively employable at the present time”.

[189]     In her
report dated October 9, 2009, Dr. Caillier opined that the plaintiff is not
able to fulfil the role of her position as a parcel sorter. She went on to say
that if the plaintiff participates in an active rehabilitation program, chooses
to be more active and undergoes treatment for sleep and emotional difficulties,
it is likely that she will be able to participate in a graduated return-to-work
program and possibly return to her previous position.

[190]     By May 26,
2011, Dr. Caillier’s opinion had changed. She was of the opinion that the
combination of physical de-conditioning, chronic pain, ongoing psychological
and emotional symptoms and poor sleep was negatively impacting on the
plaintiff’s ability to be employed in any capacity, including that of being a
part-time parcel sorter. Dr. Caillier did not say that the plaintiff was not
able to work in any capacity.

[191]     Under this
head of damages I also note that during the 4½ years that she did not
work, the plaintiff never inquired at Canada Post to determine if there was
work available that was suited to her condition. Her former supervisor
testified that Canada Post would accommodate injured employees and said that
there were jobs available at Canada Post which were less physical than her
former job. He also said that Canada Post would bring back an injured employee
on a graduated work plan if that was supported by medical reasons. Her reason
for not inquiring was that dealing with her pain was her first priority. I do
not consider that to be a reasonable basis for the plaintiff not inquiring
about suitable, non-physically demanding work in a plan that involved her
gradual return to work.

[192]     Considering
the plaintiff’s failure to mitigate, I have concluded that a reasonable award
for past income loss is $90,000.

Future Loss of Earning Capacity

[193]     A claim
for loss of future earning capacity raises two questions: firstly, has the
plaintiff’s earning capacity been impaired by her injuries and, if so,
secondly, what compensation should be awarded for the resulting financial harm
that will accrue over time? This is not a purely mathematical calculation and
must be based on a consideration of all the relevant evidence. The result will
vary from case to case.

[194]     If the
plaintiff’s position is accepted, she will not be employable for the rest of
her working life. While that view is supported by some of the experts, it is
not clear that the plaintiff might be employable after she embarks on a
dedicated treatment regime to address her emotional and physical symptoms.

[195]    
Although the long term prognosis for the plaintiff was described as poor
by Dr. Anderson in his June 2011 report, and Dr. Caillier’s report of the
plaintiff’s future employability on May 26, 2011, was quite negative, to some
extent the plaintiff’s non-employability should be attributed to her failure to
mitigate by not following the recommendations of those professionals. In
particular, in her first report, Dr. Caillier opined that:

If Ms. Mohan participates in an
active rehabilitation program as well as chooses to be more active and
undergoes treatment for sleep and emotional difficulties, it is likely that she
will be able to participate in a graduated return-to-work program and possibly
return to her previous position.

[196]     As the
plaintiff did not follow that advice it is difficult to determine with any
certainty the period of time that the plaintiff would have remained unemployed
had she followed it.

[197]    
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para.
101:

The relevant
principles may be briefly summarized. The standard of proof in relation to
future events is simple probability, not the balance of probabilities, and
hypothetical events are to be given weight according to their relative
likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27.  A
plaintiff is entitled to compensation for real and substantial possibilities of
loss, which are to be quantified by estimating the chance of the loss
occurring: Athey v. Leonati, supra, at para. 27, Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.).  The valuation of the loss of
earning capacity may involve a comparison of what the plaintiff would probably
have earned but for the accident with what he will probably earn in his injured
condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.).
However, that is not the end of the inquiry; the overall fairness and
reasonableness of the award must be considered: Rosvold v. Dunlop
(2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette,
[1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to
assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.).  Finally, since the course of future events is unknown, allowance
must be made for the contingency that the assumptions upon which the award is
based may prove to be wrong: Milina v. Bartsch, supra, at 79.

[198]     While the
evidence of Drs. Caillier and Anderson is that the plaintiff will likely be
unemployable for the rest of her life, it is my view that her inability to
return to work is in part attributable to her failure to mitigate as described
earlier in these reasons.

[199]     I also do
not accept that but for the accident the plaintiff would have been earning
$40,000 to $50,000 per annum. There is no evidence that the plaintiff took any
steps towards obtaining full-time employment and it remains speculative to
conclude that she would have done so. I am prepared to accept that the
plaintiff may have earned $35,000 based on anticipated increases in her salary
for her continued part-time work. Allowing for the same contingency and
uncertainties of the labour market as the plaintiff has applied in her claim
under this head and reducing the amount because of the plaintiff’s failure to
mitigate, I have concluded that a reasonable award is $400,000.

Cost of Future Care

[200]     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 insofar as
that is possible. When full restoration cannot be achieved, the court must
strive to achieve compensation by the provision of adequate future care. The
award is to be based on what is reasonably necessary based upon the medical evidence
to preserve and promote the plaintiff’s mental and physical health.

[201]     The test
for determining the appropriate award under this heading is an objective one
based on medical evidence. There must be both medical justification for the
claims and the claims must be reasonable.

[202]     If a
plaintiff has not used a particular item or service in the past it may be
inappropriate to include its cost in a future care award. (Izony v. Weidlich,
2006 BCSC 1315 at para. 74).

[203]     The
plaintiff relies on the recommendations of Megan Stacey and although she is not
a medical professional, to the extent that her recommendations are supported by
the evidence of the medical experts, then it is my view that they are
appropriate.

[204]     In my view
the future care services recommended by Ms. Stacey that are supported by the
medical evidence are as follows:

1)    Pain management
program – present day cost of $6,300 to $13,825;

2)    Consultation
with a psychologist for 30 sessions – $5,250 to $5,400;

3)    Supervised
exercise program – $1,440 to $2,700 for the first year and $240 to $600 for
subsequent years;

4)    Community centre
pass (assumed to be necessary for exercise program) – $344 per year; and

5)    Prescription and
non-prescription medication – yearly total cost of about $3,000.

[205]     The other
items of medical and non-medical services and equipment are not supported by
medical evidence.

[206]     I have
discounted the cost of consultations with a psychologist and supervised
exercise program because of the plaintiff’s continued refusal to undertake
either in the face of earlier recommendations by her medical advisers.

[207]     I have also
considered the present value calculation provided by Curtis Peever; however,
the assessment of damages for cost of future care is not an exact science. In
my view a reasonable award in this category is $75,000.

Special Damages

[208]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they have incurred as a result of an accident caused by
the defendant’s negligence. This is grounded in the principle that the court
will attempt to restore the injured person to the position she would have been
in had the accident not occurred.

[209]     To the
extent that the special damages claimed by the plaintiff arise from passive
modalities of treatment which provided the plaintiff with, at best, only
temporary relief such as physiotherapy, massage therapy, acupuncture and
chiropractic treatment and were not recommended by the medical experts, they
will not be allowed.

[210]     In my view
a reasonable award for special damages $8,000.

[211]     The plaintiff
is entitled to costs at Scale B unless the parties wish to address the issue of
costs.

“Bowden
J.”