IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120404

Docket: M061609

Registry:
Vancouver

Between:

Madhuprit Sandhar

Plaintiff

And

Shelley Rolston,
Wallace Maass,
Helen Maass, and Gordon Groening

Defendants

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment

[1]            
The plaintiff was injured in a motor vehicle accident on May 3, 2004. The
plaintiff’s vehicle, while stopped, was struck from behind by a vehicle driven
by the defendant Groening, and her vehicle was pushed into another vehicle
stopped in front of her. Liability is admitted. The trial was for the purpose
of assessing damages.

[2]            
The plaintiff was 33 years of age at the time of the accident and is now
41. She lives with her husband and with her two children who are now 16 and 13,
and with her husband’s parents who are elderly.

[3]            
The plaintiff was employed by a company called Versacold Logistics,
which stores and distributes frozen food.

[4]            
The plaintiff was born and educated in England, where she obtained a
diploma in business in 1989. She met her husband in Canada and then again in
England when they decided to marry. In 1992, her husband was posted to British
Columbia with the RCMP.

[5]            
On coming to British Columbia, the plaintiff briefly had a consumer
service job with a furniture company and then for seven years worked in
administration with a company that manufactured wooden pallets. In 2003 she
became a customer service representative with Atlas Cold Storage, which is now
Versacold.

[6]            
Versacold has a large shipping and receiving facility where the
plaintiff is the first point of contact for truckers arriving with frozen
produce. She sits at a window adjacent to where the trucks arrive and is
responsible for routing them to one of several unloading bays. It is a
demanding job. The trucks arrive and depart frequently, and the plaintiff is
responsible for ensuring they load and unload produce of the right type at the
correct location. The job requires very careful concentration to detail. It is
not physically demanding but nor is it sedentary in the usual sense. The
plaintiff remains in the same location but needs to stand to make notes on a
whiteboard and to activate a buzzer which signals to others the arrival of
trucks and produce. To undertake these tasks she needs to reach above shoulder
height. She also uses a two-way radio to assign trucks to a particular door and
she uses a computer in the course of her working activities. Her work also
involves the management of a continual flow of a considerable volume of
paperwork.

[7]            
The plaintiff’s shift is from 6:00 a.m. to 2:30 p.m. Monday to Friday.
She arrives at work at 5:30 a.m. to catch up on the paperwork from the day
before. She likes to arrive early so that she can leave early and be home in
time for the return of her children from school.

[8]            
The office manager who supervises the plaintiff describes her job as “a
high stress” job and speaks very highly of the plaintiff’s competence. I have
no doubt the plaintiff is a valued employee, and part of her value to Versacold
is evidenced by the fact her employer has made modifications to her work
station to accommodate her physical difficulties following the car accident.
The plaintiff appreciates what her employer has done for her and
notwithstanding its stresses, the plaintiff obviously greatly enjoys her work.

[9]            
The plaintiff has been an energetic woman with high expectations for her
home and her social and recreational life. Housekeeping duties have been shared
with her husband, but clearly she has been the motive force behind the
housekeeping. Her home is on two levels, has five bedrooms and three full
bathrooms. The plaintiff’s parents-in-law live in the same home, and it appears
the plaintiff has been relied on to look after their needs as well as those of
her husband and children.

[10]        
Prior to her injuries, the plaintiff would arrive home from work at
about 3:15 p.m. and ensure the house was clean, and then cook the
necessary meals. She worked hard throughout the week because she wanted to
leave the weekends free for family purposes which often involved outdoor
activities. She also attended a gym, frequently with her husband, as well as
swimming during the week. She enjoyed inviting guests for dinner parties once
or twice a month and it is clear she placed considerable demands on herself.

[11]        
The plaintiff described the impact on her vehicle on the May 3, 2004, as
severe. She was wearing a seatbelt and did not strike any part of her body on
the interior of the car. Her children were in the car and were upset by the
collision. The plaintiff was too nervous to drive and called her father-in-law
who arrived to drive her and her children home. The plaintiff had a slight
headache and woke up the next morning with neck stiffness on the right side.
She described a “muscle knot” on the back of her right shoulder.

[12]        
The next day the plaintiff stayed away from work and went to see Dr.
Karen Mason, who has been her family doctor for many years. Anti-inflammatories
were prescribed and the plaintiff was given an exercise regime. The plaintiff
returned to work the next day.

[13]        
Ms. Sandhar began to have “more aches and pains” on the top of her right
shoulder. The “knot” was constantly present. She exercised while at home and
during small breaks at work but continued to feel increasing pain. On October
24, 2004, Dr. Mason recommended physiotherapy. There were 20 physiotherapy
sessions from November 15, 2004, and into 2005 at the Cloverdale Physiotherapy
Clinic. There was further physiotherapy in following years.

[14]        
When Dr. Mason examined the plaintiff in October 2004, there was “pain
in her right shoulder blade” and “some pain over her right trapezius with
lateral flexion of her neck and abduction of her right shoulder. She was also
tender over the rhomboid muscles. She had full [range of motion].” The
plaintiff next saw Dr. Mason regarding the accident symptoms in April 2006
with much the same complaints as in 2004.

[15]        
The plaintiff was experiencing considerable discomfort at work. Simple
tasks, such as brushing her teeth or hair and looking after her home were
difficult or impossible. She was relying on her left arm and her husband was
taking over household chores. There was no improvement over the following
months.

[16]        
In April 2007 an x-ray was taken of her right shoulder which revealed
mild acromioclavicular joint degenerative changes and a subacromial spur
formation. Dr. Mason referred the plaintiff to an orthopaedic surgeon and
to a colleague of Dr. Mason’s who, on April 20, 2007, administered a
cortisone injection to an area of the right shoulder. The injection provided
her almost immediate relief. The plaintiff described the results as “heaven.”
The plaintiff found she was free of pain for several months and went back to
doing all of her previous activities.

[17]        
There is a significant controversy about how long she remained
pain-free. The plaintiff’s evidence in chief was that the pain began to return
in the summer of 2007. She describes it as slight pain. In cross-examination,
her examination for discovery transcript was put to her. The transcript is
dated April 15, 2008, but I was informed the examination took place on April
15, 2009. Beginning at question 108 through 118, the transcript reads as
follows:

108 Q  The accident was back in 2004, was there any
improvement in your neck pain or mobility in 2005?  I know it’s going back a
while.

A          2009 now, I’ve just had my second cortisone
shot.  So let me go back to the first cortisone shot which was a year and a
half ago; very good success and I was back to doing everything prior to
whatever happened at the accident. And on the 1st of April this year I had number
two cortisone shot.  It’s been approximately two weeks, I would say, and not
such a success right now.

109 Q  When you had the first cortisone shot, did that
help relieve the pain and discomfort in your neck all the way into the shoulder
and arm?

A          Yes.

110 Q  Did the pain disappear completely after that
first shot or was it just a lower level of pain after that?

A          I noticed that when my body was under stress
there would be slight pain there noticeable.  But generally speaking I was
quite happy I had that cortisone shot.

111 Q  And were both cortisone shots given to you by Dr.
Fagan?

A          Correct.

112 Q  So I think the first cortisone shot was around
July of 2007 [in an agreed statement of facts the date is given as April 20,
2007]?

A          H’mm-mmm.

113 Q  Up to July of 2007, then, had there been much
improvement in your shoulder and neck pain?

A          No, as recommended by the doctor, you know,
resume back to normal duties and it’s take the antiinflammatories and if it’s unbearable
we’ll start physiotherapy and that’s when everything escalated from there.

114 Q  So the original course of treatment, was to try
the physiotherapy and that didn’t work?

A          H’mm-mmm.

115 Q  And then Dr. Mason referred you to Dr. Fagan who
did the shot?

A          No, Dr. Fagan recommended for me to get an
MRI done and then referred me to Dr Chang [Chan].  And, yeah, and then after that,
Dr. Chang had actually, was the specialist who had actually said to suggest to
administer a cortisone shot, after number two cortisone shot, he would
recommend surgery.

116 Q  So you had a first cortisone shot and then it
looked like everything improved?

A          Yes.

117 Q  And how long did that last for?

A          A year and a half.

118 Q  And then did the pain and discomfort start to
return?

A          It wasn’t until
we had that last little spell of snowfalls and then, of course, there I am, my
husband was away, and I was clearing up the driveway and then this pain
wouldn’t go away.  And I just thought maybe l pulled something and that’s when
we started, in January, the physiotherapy. And after maybe a whole month of
therapy the physio had said that, you know what, I honestly do believe your
cortisone, your first shot has now worn off, it’s

[18]        
At trial the plaintiff acknowledged that these answers on the discovery were
true. The snow shovelling activities referred to on the discovery occurred in
late December 2008.

[19]        
In Dr. Mason’s letter of May 18, 2009, she reports that the plaintiff
“had full, pain free range of motion and was very pleased with [the result of
the cortisone injection of April 2007].” She also records that the plaintiff
“was well until December 2008” which is consistent with the plaintiff’s
evidence on discovery. In cross-examination the plaintiff insisted she was
never free of pain after the motor vehicle accident which at all times was at
least slight but “because of that chore [the snow shovelling] the pain became
severe.”

[20]        
At the end of August 2007, the plaintiff was examined by Dr. Albert
Chan, an orthopaedic surgeon to whom she had been referred. Dr. Chan took a
history from the plaintiff, part of which reports that “the [cortisone]
injection gave her complete relief to her right shoulder pain. However the pain
was gradually returning at the time of seeing me.”

[21]        
The snow shovelling activity must have imposed considerable stress on
the plaintiff’s shoulder. It involved shovelling the driveway at the
plaintiff’s home over a three-day period as well as shovelling sidewalks.
Apparently she spent several hours on each of three consecutive days shovelling
snow.

[22]        
I conclude that the plaintiff was very largely, if not entirely, free
from pain after the cortisone injection in April 2007 and remained
substantially but not entirely pain-free throughout that year. In 2008 the pain
was still present to a slight extent, but nevertheless was markedly improved
over what it had been up to the time of the cortisone injection in April 2007.

[23]        
I find it impossible to reconcile a decision to shovel snow over a
three-day period for several hours each day with the presence of significant
shoulder pain at the time of making the decision. In my view, as she reported
to Dr. Mason, the plaintiff must have been feeling reasonably well at the time
she decided it was prudent to use a snow shovel for three days.

[24]        
The question which arises is whether the pain experienced after the snow
shovelling was a symptom the plaintiff, after engaging in a household chore, had
exacerbated the injuries from the accident of May 2004 or was she experiencing
the symptoms of a new injury which ought not to be attributed to the defendant’s
breach of duty. To put the question differently I ask myself if the plaintiff’s
circumstances are analogous to the plaintiff in Athey v. Leonati, [1996]
3 S.C.R. 458, such that I should treat the injuries from the motor vehicle
accident and the snow shovelling as indivisible, thus requiring the defendant
to compensate the plaintiff for all the pain and disability, income loss and
other pecuniary damages past and prospective from both the motor vehicle
accident and those which followed the shovelling activities.

[25]        
I will continue with the narrative and a discussion of the expert
evidence to reach a conclusion on whether the injuries following the snow
shovelling were different from the injuries diagnosed in 2004 and therefore
divisible and not compensable in this action.

[26]        
When Dr. Chan saw the plaintiff in August 2007, he reports that she
complained of “some discomfort in the lower cervical spine during range of
motion of the neck. The right shoulder had no obvious deformity. There was some
tenderness at the subacromial space. Active range of motion of the right
shoulder was quite well preserved compared with the left side. The impingement
test to the right shoulder was mildly positive. The shoulder was notably stable
and her strength was quite well preserved.”

[27]        
In commenting on the x-ray of her shoulder taken in April 2007 and
an MRI scan which was performed on August 18, 2007, Dr. Chan reports
degenerative changes in the acromioclavicular joint and that “no rotator
cuff tendon identified.” I understand this last finding indicates no damage to
the rotator cuff tendon was identified in that MRI scan report.

[28]        
Dr. Chan goes on to say that because the “magnetic scan did not showed [sic]
any significant permanent, structural pathology, we had decided to continue
with the non-surgical care.” Dr. Chan recommended physiotherapy and suggested
to Dr. Mason that the plaintiff could see her again if there was further
difficulty. Dr. Chan suggested if there was difficulty “we could consider subacromial
decompression surgery.”

[29]        
Dr. Chan provided a further letter of opinion to the plaintiff’s lawyers
on September 18, 2010. He comments that when he saw the plaintiff in
August 2007 there were clinical signs of recurrent impingent syndrome “and
rotator cuff irritation … [i]t was noted that there was some hypertrophy of the
acromioclavicular joint, but no rotator cuff tendon tear. Because the rotator
cuff tendon was still intact, and because she had significant improvement to
her symptoms with cortisone, I recommended to Ms. Sandhar that she should
continue with non-surgical care.”

[30]        
Dr. Chan saw the plaintiff again in September 2009. The plaintiff had
another cortisone injection in April 2009 which had not been helpful. Her
active range of motion had decreased slightly since 2007. There had been a
second MRI scan in July 2009 which revealed arthritic changes in the acromioclavicular
joint and mild supraspinatus tendonopathy. The plaintiff was told that she
could choose arthroscopic surgery to achieve a subacromial decompression. She
made that decision. It will be recalled that these findings and the decision to
elect surgery follow the severe increase in pain after the snow shovelling
activity in December 2008.

[31]        
The surgery was performed in March 2010. A “partial rotator cuff tendon
tear” was found. The plaintiff developed “post operative adhesive capsulitis”
which is commonly referred to as “frozen shoulder.”

[32]        
When Dr. Chan saw the plaintiff in September 2010, she was steadily
improving but had residual stiffness. Dr. Chan was optimistic the stiffness
would resolve over about two years but there was a possibility the plaintiff
might not regain full range of motion in her right shoulder.

[33]        
Dr. Chan added that the partial rotator cuff tendon tear and “some
rotator cuff tendonopathy i.e. degeneration” suggested “it is possible that she
can have future symptoms secondary to rotator cuff pathology.” If this
developed, Dr. Chan opined she could miss some days of work “because of
aggravation from time to time” which may be alleviated by physiotherapy.

[34]        
Dr. Chan next saw the plaintiff in November 2010. There was improvement
in range of motion and strength in the right shoulder which was slightly
decreased from the left.

[35]        
By January 4, 2011, on the next visit, the plaintiff “was also able to
move the shoulder much more spontaneously.” Return to work was discussed and
she was advised to return to work four hours a day gradually increasing that
time by two hours every two weeks if tolerated. The plaintiff returned to
Versacold in the autumn of 2010 to train new employees but she returned in a
very sedentary role. On January 10, 2011, she began a gradual return to work as
recommended by Dr. Chan. By February 7, 2011, the plaintiff had returned
to full-time work.

[36]        
Dr. Chan saw the plaintiff in March 2011. She was attending
physiotherapy once a week. She had “spontaneous movement of the right shoulder
with good mechanics.” There was some limitation in range of motion but
“impingement test was negative.” Dr. Chan reports the plaintiff’s “shoulder
motion is functional, but not perfect.” The “likelihood of further improvement
one year beyond the time of surgery is small.”

[37]        
The central controversy on this trial is a causation issue already
mentioned which emerges from the decision of the plaintiff to shovel snow in
late December 2008. On the morning after spending three days and several
hours each day shovelling snow from the driveway and sidewalks adjacent to her
home, the plaintiff awoke with a sharp pain in her right shoulder. The affects
of this greatly increased pain led to a second cortisone injection and then to arthroscopic
surgery in March 2010 to the plaintiff’s right shoulder. The plaintiff was
away from work for 10 months losing somewhat in excess of $31,000 in income,
part of which was paid by a disability insurer through her employer, which insurer
has a subrogated claim.

[38]        
The plaintiff argues the increased shoulder pain, and its consequences
were an aggravation of the pre-existing injuries and are indivisible and
therefore the defendant must compensate her for all injuries caused by both
events. The defendant, on the other hand, argues the injury which followed the
snow shovelling in December 2008 is a different injury from those caused
by the accident of May 2004 and therefore is divisible and the defendant
bears no responsibility for the post snow shovelling injuries.

[39]        
The defendant relies on the opinions of Dr. Jordan Leith, an orthopaedic
surgeon who evaluated the plaintiff on April 21, 2007, and who was provided
with the records of others who treated or examined the plaintiff. Following his
examination of the plaintiff, Dr. Leith wrote to defence counsel on
May 16, 2007, reporting the following:

There was tightness along the right trapezius that was
exacerbated with a rotation of the neck to the left and a lateral bending to
the left. There was tenderness over the trapezius as well and over the cap of
her shoulder. Her shoulder examination revealed full rotator cuff power at 5/5.
There was no crepitus. There was no instability. There were no signs of impingement
and no scapular winging.

Diagnosis:

1.         Soft tissue injury of para-cervical musculature.

2.         Possible impingement syndrome right shoulder.

The prognosis for recovery from such injury is normally good,
however, the symptoms affecting the shoulder have been present for nearly three
years now, which makes the prognosis less than optimal.

With regards to future
employment, Ms. Sandhar will likely have difficulties with any activities
that require repetitive use of shoulder at shoulder level or above or any use
that requires heavy lifting.

[40]        
Dr. Leith reported again on September 5, 2009, as follows:

Dr. Mason’s report, dated July 21, 2007, repeatedly
documented the symptoms and location of pain related to the right shoulder as
being posteriorally only. This is most consistent with a soft tissue
peri-scapular pain problem and not specifically a rotator cuff problem based on
the character and location of the pain.

A subsequent report by Dr. Mason dated May 18, 2009,
documented that an MRI performed on August 18, 2007 did not show any
pathology involving the rotator cuff. Dr. Mason also noted that
Dr. Chan, an orthopedic surgeon felt that there might be some impingement
syndrome occurring with the right shoulder.

This report of Dr. Mason
also noted that Ms. Sandhar presented to the office on December 29,
2008 with increased pain to her right shoulder after shoveling snow. The
examination of the right shoulder was different than earlier examinations with
respect to the location of the pain. This is most consistent with a new event
causing these symptoms and is more consistent with rotator cuff problem.

[41]        
The plaintiff is critical of Dr. Leith for adopting what is said to
be the role of an advocate for the defendant and seeks to exclude Dr. Leith’s
evidence on that basis. I am not persuaded Dr. Leith has failed in his duty to
the court. Dr. Leith has firmly held opinions which are at variance with
Dr. Mason who opines that the plaintiff aggravated her pre-existing injury
when she shovelled snow. Acceptance of Dr. Mason’s opinions could lead to
a finding that the injuries from the car accident and the snow shovelling are
indivisible, whereas acceptance of Dr. Leith’s opinions could lead me to
conclude the injuries are divisible. That does not make either an advocate.

[42]        
Dr. Mason has known the plaintiff for many years and examined her
on several occasions in relation to the injuries alleged at this trial. At
least superficially, those considerations suggest her opinions should be given
greater credence than those of Dr. Leith who examined the plaintiff only
once. However, my confidence in Dr. Leith’s opinions is reinforced on
considering the relative expertise of Dr. Leith and Dr. Mason in
respect of the injuries of which the plaintiff complains.

[43]        
Dr. Mason is a family doctor of long standing. She principally
cares for woman and children and has been much engaged in obstetrics. She
assists in the delivery of upward of 70 babies in a year. I have every reason
to believe Dr. Mason is a highly competent family physician but has no
specialist training or experience to match that of Dr. Leith.

[44]        
Dr. Leith has an active orthopaedic practice with a particular
interest in shoulder injuries and arthroscopic reconstruction of the shoulder,
elbow and knee. Dr. Leith has written and instructed in relation to that
particular interest.

[45]        
In addressing the complaints of the plaintiff, I prefer the opinions of
the Dr. Leith over those of both Dr. Mason and Dr. Chan.
Dr. Chan is an orthopaedic surgeon but without the specialized training
and experience that Dr. Leith enjoys in respect of shoulder injuries.

[46]        
Dr. Chan performed the arthroscopic surgery on the plaintiff. He
reported that the surgery of March 2010 disclosed a “partial rotator cuff
tendon tear.” Dr. Chan accepts this was not present in 2007 when the
plaintiff was scanned prior to the first cortisone injection. Dr. Leith
reports, on November 29, 2010, that the 2009 MRI reports “damage to the
rotator cuff” whereas the 2007 MRI “did not report any damages or changes to
the rotator cuff.”

[47]        
Dr. Leith was asked to give his written opinion on two questions
asked by defence counsel. The questions and his responses to them are as
follows:

You have asked:

1.         If Ms. Sandhar had not previously injured her
shoulder, could shoveling snow in and of itself have caused her current
shoulder symptoms?

My response to this would be: Yes, shoveling snow could
result in shoulder symptoms of this nature.

2.         Is the reoccurrence of Ms. Sandhar’s shoulder
pain simply an aggravation of her previous shoulder injury?

My response to this would be
affirmative if Ms. Sandhar has never had complete resolution of her symptoms
from the subject accident, then certainly other events would act as an
aggravating source to the right shoulder pain. If there was complete resolution
of the shoulder symptoms for a period of time after the subject accident,
followed by a subsequent event with a return of symptoms, then the subsequent
event would be considered more of an independent source of the pain, rather
than an aggravating source.

[48]        
Dr. Leith concluded that following the cortisone injection, the
plaintiff had complete relief of her symptoms for a considerable period of
time. This is consistent with the evidence the plaintiff gave on her
examination for discovery which she acknowledged was truthful and consistent
with what she had told Dr. Mason.

[49]        
In his report of May 16, 2007, Dr. Leith opines that because the
symptoms in the right shoulder had been present for nearly three years “the prognosis
is less than optimal.” He goes on to say “[t]he only option available to Ms.
Sandhar at this point would be consideration of an arthroscopic subacromial
decompression and debridement for this impingement syndrome.” In
cross-examination, Dr. Leith was pressed to agree that the reference to surgery
as the only option available is tantamount to a recommendation for that
surgery. Dr. Leith did not agree and gave his opinion that the surgery was “not
a medical option” but might have a placebo effect in relieving symptoms of
injuries whose “presentation is soft tissue only.”

[50]        
I am satisfied that the plaintiff, for several months after the
cortisone injection in 2007, had no symptoms of the type that she had been
experiencing since the May 2004 accident. I also conclude that the pain
gradually returned, but to a much lesser extent that had been the case before
the cortisone injection in April 2007. Dr. Leith is probably correct
that the snow shovelling activity did not reactivate or aggravate the previous
injuries, but instead caused a new injury to the plaintiff’s rotator cuff. That
injury lead to the arthroscopic surgery and the substantial loss of income over
10 months of absence from work.

[51]        
I conclude the injury from the snow shovelling is divisible. It was not
caused by an exacerbation of the injuries from the car accident and cannot be
blamed on the defendant.

[52]        
Even if the injury suffered from snow shovelling was indivisible, I
would be inclined to assign fault for it to the plaintiff herself. The plaintiff’s
circumstances are not analogous to those of the plaintiff in Athey v. Leonati,
supra. In Athey the plaintiff, on his doctor’s advice, returned
to his regular exercise regime and in so doing suffered a disc herniation. His
injuries while exercising were indivisible in the sense they were a natural
effect of the injuries caused by the defendant. Ms. Sandhar did not return
to her regular exercise regime when she shovelled snow. In my opinion, her
desire to manage all aspects of her household overcame prudence when she shovelled
snow over several hours on three consecutive days in December 2008. I have
little doubt that if she had asked Dr. Mason’s advice on whether she
should undertake that activity before she made the decision to do so,
Dr. Mason, or any other doctor who was informed of the plaintiff’s health
history, would have recommended against shovelling snow. Whether the plaintiff’s
decision to shovel snow ought to be characterized as an intervening act, which
relieves the defendant of the obligation to compensate for the deleterious
effects of that act, or ought to be characterized as a failure to mitigate, in
my opinion, the defendant is not responsible for the injuries which the plaintiff
suffered as a result of shovelling snow.

[53]        
In Hussack v. Chilliwack School District No. 33, 2011 BCCA 258,
the court observed that decisions of the court on the question of an
intervening cause, “say that if an injured party acts unreasonably and causes
him or herself further injury, the tortfeasor is not responsible for any
injuries suffered as a result of the second injury.” It was not reasonable for
the plaintiff to have shovelled snow in the fashion that she did in 2008. Even
if the injuries from that activity were indivisible, I would not award damages
for them.

[54]        
That does not mean compensation for the injuries from the car accident
is cut off from the date the plaintiff shovelled snow. If the car accident
injuries continued to have their effects after December 2008, the defendant
remains liable to compensate the plaintiff for those effects. See Dudek v.
Li, 2000 BCCA 321.

[55]        
There has been no mechanical derangement of the plaintiff’s neck and
shoulder caused by the car accident. I accept Dr. Leith’s view that the plaintiff’s
injuries were soft tissue injuries of the “whiplash” variety. The evidence is
that the whiplash was properly characterized as grade one. That is the least
damaging form of a whiplash injury. That does not mean the injuries were
insignificant. On the contrary, they caused pain and measure of disability from
May 2004 until the cortisone injection in April 2007. I accept that slight pain
returned later that year and through 2008. Despite the plaintiff’s ability to
carry on with work, the plaintiff found it to be uncomfortable to do so. I
accept that even if she had not suffered a new injury to her shoulder in December
2008, the pre-existing problems would have lingered even beyond 2008 for
perhaps about two years.

[56]        
I have been provided by the parties with numerous authorities on the
assessment of non-pecuniary damages in similar cases. As is usual, none of the
plaintiffs in those cases had injuries the same as the plaintiff before me. I
take into account the long course of difficulties experienced by the plaintiff
which would not have been suffered but for the car accident and that the car
accident injuries would have lingered for about six years while gradually
diminishing. The three years before the plaintiff had the cortisone injection
were difficult, but she did her best to carry on with her employment and with
her housekeeping with considerable discomfort. She lost much of her enjoyment
of life in those years. She returned to her pre-accident condition after April
2007 and had marked relief of pain for 18 months, but not complete resolution.
The plaintiff’s high expectations of herself in her employment, housekeeping
and recreational activities, increased the effect of the car accident injuries,
but the defendant must accept the plaintiff as she is.

[57]        
I assess non-pecuniary damages at $60,000. The plaintiff is entitled to
$133 for the one day of work she lost after the May 2004 accident.

[58]        
There is no basis on which to find the plaintiff has proven there is a
real and substantial possibility of a loss of income in the future from the car
accident related injuries. She has, as Dr. Chan opines, good if not
perfect function in her right shoulder. I do not believe she is less employable
in the type of work she has been engaged in for several years. She has no
desire to change from that work and she is clearly valued by her employer. She
is capable of working until retirement age in that capacity.

[59]        
The plaintiff is no longer undergoing physiotherapy and in my view, is
capable of managing whatever lingering effects there may be from her injuries by
her own exercise program.

[60]        
The plaintiff claims almost $10,000 for special damages. Most of that
claim is for expenses incurred after December 2008 and in particular after the surgery.
My finding that the injuries are divisible precludes recovery for those special
damages. I award special damages up to the time of the injury in December 2008
which I assess at $1,500.

[61]        
I make no award for loss of housekeeping capacity. The plaintiff did not
hire housekeeping help and the evidence leads me to conclude that she is now
able to perform her housekeeping chores much as she did before she was injured.
I understand no “in trust” claim is advanced for Ms. Sandhar’s husband’s
housekeeping. This no doubt derives from the fact he was involved in the
housekeeping before May 2004.

[62]        
Unless there are matters of which I am not informed, the plaintiff is
entitled to her costs.

“Affleck
J.”