IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120607

Docket: M110637

Registry:
Vancouver

Between:

Michelle
Narain

Plaintiff

And

Sukhmander
Singh Gill

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Meiklem

Reasons for Judgment

[1]          
This is a personal injury claim arising out of a motor vehicle accident
on February 20, 2009, when a minivan driven by the defendant crossed the centre
line on 92^nd Avenue in Surrey, British Columbia at approximately 1
a.m. and struck head-on a Jeep Cherokee driven by the plaintiff.

[2]          
The defendant has taken no part in this proceeding. The Insurance
Corporation of British Columbia (“ICBC”) is not admitting liability, but liability
is not contested, and I find that the defendant was negligent and caused the
accident.

[3]          
The physical damage to both vehicles indicates that the impact was
significant. It appears that air bag deployment was a significant factor in
moderating the plaintiff’s injuries; nevertheless, she was badly shaken, and
immediately after the impact she was unable to speak and said she could not
feel her legs. She was taken by ambulance to Royal Columbian Hospital and
released later the same day. She was driven by friends home to her parents’
house where she rested in bed for two weeks. She described her injuries as
extreme soreness of her neck, shoulder and her back. She felt as if there was some
shifting of her jaw which temporarily interfered with her ability to speak. She
said that her mother helped her to the bathroom and gave her a sponge bath,
helped her dress, and at times came and slept with her.

[4]          
She described her condition in the month following the accident as being
extremely sore in the mid to lower back with shooting pains to her shoulders
and a stiff neck. She had a cut on her left knee and her knee was also sore.

[5]          
Approximately one month after the accident, she began attending
physiotherapy and attended twelve sessions between March and May of 2009. In July
of 2009, she started going to physiotherapy at an aquatic centre. The majority
of her visits there were in August, but continued into November 2009.

[6]          
Ms. Narain was employed as an administrative assistant at a health
products manufacturing company, Flora Manufacturing & Distributing Ltd. (“Flora”)
at the time of her accident, and had been so employed since January 2007. Her
job function was primarily data entry. Her injuries prevented her from
continuing that employment for a number of months, but she decided to return to
work full-time on November 9, 2009.

[7]          
Between the date of the accident and November 2009, she received some no-fault
employment benefits from ICBC, and long-term disability payments from a private
insurer, who is entitled to be subrogated. Ms. Narain acknowledged that her
family doctor, Dr. Hasham, had encouraged her to return to work in May 2009,
but she did not do so. Dr. Hasham again encouraged her to make a gradual return
to work in August of 2009, which she did not do, opting instead for the
physiotherapy program at the aquatic centre. In early October 2009, her
employer offered her a gradual return to work, but she did not feel emotionally
ready to accept that offer, even though she returned full-time about one month
later.

[8]          
She testified that she felt some financial pressure to return to work
and she said she was then feeling “quite a bit better”, although not fully
recovered. She said she still had knee pain and mid and lower back pain. She
was still awakened by pain two or three times nightly, and her back pain
interfered with her breathing.

[9]          
When Ms. Narain returned to work, she returned in the capacity of a
customer service representative because her previous job functions had been
taken over by someone else. Her new job involved much of the same work, but she
spent more time on the telephone with customers.

[10]       
On her return to work, she found that she was often in pain when bending
or getting up and down and she could not sit for very long. There was an
occupational therapist at work who recommended a foot rest, a new chair, and a
keyboard tray, which her employer did provide. She said that she had to lie on
her back for a few minutes when she got home from work, and occasionally took
Tylenol if the back pain was particularly bad.

[11]       
In the fall of 2010, Ms. Narain was promoted to inside sales
representative, which involved meeting customers directly. She says that she
liked the change, but she noticed the lower back pain more frequently because
of an increased need to be present at her desk. When asked to describe her
condition at the end of 2010, she said that her neck and shoulder had improved,
there was still stiffness and pain in her left knee, which would not, for
example, let her sit with one leg crossed over the other. She said that her
back was still stiff and very sensitive to sitting unsupported. By then she was
sleeping better, but was sore on waking.

[12]       
Ms. Narain was referred to Dr. H.A. Anton, a specialist in physical
medicine and rehabilitation, who first saw her on September 7, 2010. On that
occasion, Ms. Narain told Dr. Anton that her biggest problems were back pain
and pain in the left knee. The back pain usually involved the lower lumbar area
on both sides, and the mid-back pain occurred between the shoulder blades. She
told Dr. Anton that she felt her low back pain had not changed and her mid-back
pain was growing worse. She told Dr. Anton that her knee pain was actually
growing worse in that it now hurt throughout the day, and she could not kneel
or get up from kneeling without support due to pain.

[13]       
When Dr. Anton asked about her mood, she told him that she felt “down”
since the accident and felt depressed at some point every day.

[14]       
After assessing Ms. Narain and assuming listed facts, derived in part
from Ms. Narain’s self-reporting, Dr. Anton set out the following opinions in
his October 29, 2010 medical/legal report:

Based on my assessment of Ms. Narain and the
specific facts listed, it is my opinion she suffered injuries in the motor
vehicle accident on February 29, 2009 which included:

1.         Injuries
to soft tissue structures in the low back.

2.         Injuries
to the left leg, including a laceration to the left knee and a contusion or
other soft tissue injury to the knee.

3.         An
injury to the jaw, likely involving soft tissue structures.

4 
Injuries to soft tissue structures in the neck and shoulder girdle.

5.         Contusions
or soft tissue injuries to both wrists.

6.         Contusions
or soft tissue injuries to both ankles.

7.         Bruising
to the lower abdomen.

8.         An
abrasion to the right knee.

Ms. Narain’s history of a brief loss of
consciousness or altered level of consciousness after the accident makes it
possible she also suffered a mild traumatic brain injury (in different
terminology a cerebral concussion). If so, it is very unlikely she has any
residual problems from that.

Ms. Narain’s complaints included pain in the
lower back and mid back. She felt her mid back pain was growing worse.

Ms. Narain’s current back pain needs to be
interpreted in the context of her history of pre-existing back problems after
prior motor vehicle accidents. Her current pain appears to be worse than her
pain predating the most recent accident, but her past history suggests she
would have been at risk for episodes of back pain even if the accident had not
occurred.

Ms. Narain’s current back pain is probably
mainly mechanical in nature. The term mechanical back pain refers to pain
exacerbated by postures and activities that mechanically load the spine. Many
factors can contribute to mechanical back pain. Probably the most important in
the setting of soft tissue injuries is deconditioning.

It is possible that some of Ms. Narain’s
pain is discogenic (arising from an abnormality in an intervertebral disc)
because her pain is exacerbated by sitting, which increases pressure within the
disc. If so, that would not change her managements.

It is probable that Ms. Narain’s situation
after the accident was complicated by deconditioning. The term deconditioning
refers to loss of strength, flexibility and endurance due to reduced exercise
and activity. Deconditioning may occur after soft tissue injuries and reflects
reduced exercise and activity due to pain and anxiety about experiencing pain
with activity.

Ms. Narain’s situation has been complicated
by anxiety and depressed mood. The latter predated the accident but may have
been exacerbated by stressors specific to the accident. I would defer to a
psychiatrist regarding the contribution of the accident to her depression.

There is a complex relationship between
depression and depressed mood. Depression is a common complication of chronic
pain. It can also contribute to pain complaints and reduce the effectiveness of
treatment for pain. It follows that optimal treatment of Ms. Narain’s pain
requires optimal treatment of her psychological condition.

Ms. Narain requires an integrated approach
to management of her chronic pain, treating both psychological and physical
factors.

I recommend that Ms. Narain be referred to a
registered psychologist for assessment and cognitive behavioural therapy to
assist her with her depressed mood and also pain. The number of treatment
sessions required would best be determined after initial assessment.

I recommend that Ms. Narain be referred to a
kinesiologist for assessment and an individualized and supervised one to one
exercise program. That will need to be integrated with her psychological
intervention. It should include specific exercise for core stability and
flexibility as well as more general cardiovascular exercise. She would likely
require up to three sessions per week for a period of up to twelve weeks.

Considering the nature of Ms. Narain’s
injuries, her time away from work was reasonable. It is possible depression has
also contributed to her disability for work but I would defer to my colleagues
in psychiatry regarding that.

Ms. Narain reported continuing pain severe
enough to affect her participation in activities. Pain is subjective and it is
not possible to objectively quantify disability due to pain. With that caveat,
it is my opinion Ms. Narain’s pain could affect her participation in work. She
continues to work despite her pain, but if there were a change in her
circumstances and she had to do more physically demanding work, then it could
become more difficult for her to continue working.

It is also my opinion that Ms. Narain’s pain
could require she modify or restrict her participation in physically demanding
household tasks.

Ms. Narain’s long term prognosis is still
uncertain and will depend in part on her response to further treatment. She has
the potential to improve with time and further treatment and get back to her
previous level of symptoms and function. Negative prognostic factors include
the duration of her pain and the possible role of psychological factors in her
pain.

Ms. Narain also reported left knee pain. Her
pain is probably at least in part patellofemoral. Patellofemoral pain arises
from the patellofemoral component of the knee joint or associated structures.
The patella normally tracks smoothly in a groove on the femur as the knee is
bent and straightened. Anything that disrupts that smooth tracking can lead to
local irritation, inflammation and pain. The vastus medialis obliquus (VMO)
component of the quadriceps muscle plays an important role in movement of the patella
on the femur. Direct trauma to the knee or loss of strength in the VMO can lead
to patellofemoral pain. Exercise to strengthen the VMO and restore more normal
function of the patellofemoral joint is a key component of treatment.

In the absence
of any prior history of knee pain, it is probable that Ms. Narain’s knee
injuries contributed to the subsequent development of patellofemoral pain.

[15]       
Ms. Narain did not follow Dr. Anton’s recommendations that she see a
registered psychologist for assessment and cognitive behavioural therapy to
assist her with her depressed mood and pain, and she did not see a kinesiologist for assessment. She testified that she was not able to
afford these referrals.

[16]       
In April 2011, Ms. Narain received a “letter of
incident” from her employer listing several occasions on which she had left
work early on account of doctors’ appointments or sickness, half of which had
occurred in January 2011. Although the letter also noted absences on December
23, 2010 and April 1, 2011 for sickness, the letter also advised Ms. Narain of
the desirability of staying home and calling in sick when she was ill, rather
than coming to work. The letter also indicated several ways in which her employer
wished to see her improve her sales performance.

[17]       
Ms. Narain’s employment was terminated by her employer
on August 10, 2011. Her termination purported to be for cause, described as: “too
many issues that have been ongoing and lead us to determine that it is [in] the
best interest for [sic] Flora if we part ways. ”Flora offered to indicate on
her record of employment that she had resigned if she so wished. She was
offered eight weeks pay in lieu of notice in exchange for a full and final
release, and Ms. Narain accepted that offer.

[18]       
Dr. Anton performed a further medical examination and
assessment of Ms. Narain on October 24, 2011, and produced the following
report:

Based on my reassessment of Ms. Narain, my
opinion regarding the nature of the injuries she suffered in the accident on
February 20, 2009, has not changed. Those injuries were described in my earlier
report dated October 29, 2010.

Ms. Narain’s chief complaint when I
reassessed her was back pain. She reported that had improved and was still
improving.

I previously expressed the opinion Ms.
Narain had mechanical back pain and possibly discogenic pain. My opinion
regarding that has not changed.

Ms. Narain also complained of continuing
pain in the left knee.

I previously expressed the opinion that Ms.
Narain’s knee pain was probably at least in part patellofemoral and discussed
the factors that could cause such pain, including dysfunction in the vastus
medialis obliquus (VMO) muscle.

I also noted the presence of a lesion over
the left distal femur with the appearance of an osteochondroma on prior x-rays.
I felt it was possible (but not probable) that was contributing to Ms. Narain’s
pain. I recommended repeat x-rays of the knee to evaluate that. I could not
find any confirmation those were done, so I ordered x-rays when I reassessed
Ms. Narain. However, I have not been able to determine if those were done by
the time of completion of this report.

Based on the available information, it is my
opinion that Ms. Narain’s persisting knee pain is (as before) patellofemoral
pain.

Ms. Narain’s complaints when I saw her included
muscle twitching. That has since resolved and is no longer a problem.

Ms. Narain’s situation after the accident
was complicated by anxiety and depressed mood with a background history of
multiple life stressors that predated the accident. As noted in my earlier
report, depression is a frequent complication of chronic pain. It can also
contribute to pain complaints and reduce the effectiveness of treatment for
pain.

It is clear that Ms. Narain continues to
struggle with her mood. She has unfortunately lost her job since I last saw her
and that has contributed to additional stress.

Ms. Narain reported her continuing pain was
severe enough to affect her participation in activities. She specifically
reported her pain was exacerbated by sitting, which was a requirement in her
work.

Pain is subjective. Assuming Ms. Narain’s
description of her pain is accurate, it is my opinion that the back and knee
pain would affect her participation in work, household chores and recreational
activities. In particular, she would probably have difficulty with activities
that involved frequent bending; frequent or heavy lifting; prolonged sitting,
especially without good trunk and back support; kneeling; or squatting. It
follows that she has a continuing partial disability for such activities.

It is possible that Ms. Narain’s continuing
psychological symptoms affect her participation in activities but I would defer
to a psychiatrist regarding specific psychiatric diagnosis and associated
disability.

I previously recommended Ms. Narain
participate in a kinesiologist supervised exercise program. That has not
occurred but, to Ms. Narain’s credit, she has been exercising regularly on her
own. She should continue to do that. I again recommend she have 12 to 24
sessions of supervised exercise with a kinesiologist to optimize her exercise
program.

Ms. Narain’s program should include general
cardiovascular exercise; specific exercises for the VMO component of the
quadriceps muscle; and exercise for postural control and core stability.

Given Ms. Narain’s continued depression and
anxiety, I recommend further psychological intervention. As before, I suggest
Ms. Narain be referred to a registered psychologist for assessment and
cognitive behavioural therapy to assist her with her depressed mood and pain.

Ms. Narain may also wish to discuss a trial
of alternative antidepressant medication with her family physician or be
referred to a psychiatrist for advice about pharmacological treatment. Drugs
like Effexor or Cymbalta may help both pain and depressed mood.

Ms. Narain is concerned about the appearance
of her scars and that may be exacerbating her psychological distress. I
recommend she see a plastic surgeon for an opinion about options for scar
treatment.

It is still too early to predict Ms. Narain’s
final prognosis because she should have further treatment. With that caveat, it
is my opinion she can improve with further treatment but is now at the point
where the prognosis for resolution of her pain is guarded. The longer her pain
persists, the less likely it will resolve.

Ms. Narain had a pre-existing history of
back pain. She will at best improve to the point where she continues to have
episodes of back pain similar to those she had before the accident.

Ms. Narain is considering other work options,
including retraining or further education. I would advise her to consider work
that does not involve activities that could increase her back or neck pain as
described above. I also recommend a vocational assessment to help her identify
realistic and appropriate options.

Ms Narain will
probably not develop late complications from her injuries such as
post-traumatic arthritis. She will probably not require surgical treatment for
her back pain or knee pain. I recommend annual review of her exercise program
by a physiotherapist or kinesiologist to ensure it is still appropriate to her
circumstances.

[19]       
Ms. Narain has not found another job since her termination in August
2011, although she testified that she searches for jobs online on a daily
basis, principally for administrative work or clerical work. She has received
no offers for interviews. She says she is interested in daycare, but does not
think she could do that type of work because of kneeling and back pain
limitations. She also feels these limitations rule out residential care aide or
laboratory assistant work.

[20]       
On cross-examination, Ms. Narain said that she is currently collecting
employment insurance. She has advised the employment insurance people that she is
willing to accept work, but as far as actual job applications, she has only applied
at the Vancouver Coastal Health Authority and some medical offices.

[21]       
Ms. Narain acknowledged on cross-examination that she had received a
memorandum dated July 4, 2007, nearly two years prior to the accident, which
documented a meeting concerning her work attendance and commitment to work. The
purpose of the meeting was described in the memorandum as: “Met with Michelle
to go over a few things that need immediate change in order for employment to
continue.” It noted that one of the issues was that she had missed a lot of
work on account of being sick or not feeling well, and a few times for family
or personal reasons.

[22]       
Ms. Narain’s pre-accident medical condition was the subject of
considerable cross-examination because she was involved in two previous motor
vehicle accidents. The first of these occurred on March 9, 1999 at age 13, and
the second on December 31, 2005.

[23]       
In respect to the 1999 motor vehicle accident, Ms. Narain said her
symptoms lasted four or five years. She had chronic back pain and headaches and
saw several neurologists and orthopedic specialists. In respect of this
accident, she reported to Dr. Anton in October 2010 that she may have been left
with “a little bit of back pain from that accident.” The major symptom referred
to in a neurologist’s report of August 25, 2000 was daily throbbing headaches
of variable intensity and duration. Further neurologists’ reports in August of
2002 and March of 2003 reported little improvement in her headaches, and she
was reporting to these neurologists that she was fairly sedentary, and did not
go to the gym on a regular basis.

[24]       
Ms. Narain acknowledged that she was still complaining to her general
physician of chronic back pain from the 1999 accident in March 2003.

[25]       
In October 2003, Ms. Narain attended an orthopedic specialist
complaining of left pelvic pain and pain extending down into the left side of
her leg, the onset of which she attributed to the 1999 motor vehicle accident.
She advised that attempting sports aggravated the pain and she avoided same.
She reported that she was afraid to go to a gym and work out because of the
symptoms which came on after workouts, and she complained of left buttock
muscle wasting, the appearance of which concerned her. The orthopedic surgeon’s
examination of October 30, 2003 revealed a leg length difference with the left
leg being about two centimetres shorter than the right, and her left calf
measurement one centimetre less in circumference than the right. It was noted
at that time that she had good range of motion in her back in all directions
without any pain. The orthopedic surgeon diagnosed lumbar strain and suggested
that some of her problem was due to mechanical pain secondary to a leg length
discrepancy.

[26]       
In a June 3, 2005 letter, following an evaluation for her chronic
post-traumatic headaches, neurologist Dr. Robinson reported to Ms. Narain’s
general physician. He set out Ms. Narain’s self-reporting of additional
problems continuing from the 1999 accident, including her report that after
missing school for a couple of days she did return to school, but found that
her headaches, neck, mid-low back and hip pain made it impossible for her to
return to her recreational activities. She further indicated that she had
difficulty sitting any longer than 30 to 45 minutes without beginning to have
back and hip pain.

[27]       
Ms. Narain was once again referred to orthopedic surgeon, Dr. Hill, on
August 5, 2005 to deal with recurring pain in her back and left buttock region.
She reported that she had some pain with bending and prolonged standing and that
weight-bearing tended to aggravate the pain. Dr. Hill reported that her
clinical examination was strongly suggestive of a disc herniation and it was
appropriate to have MRI studies done, which he said he would be ordering.

[28]       
At trial, Ms. Narain adopted the truth of all her self-reporting to the
above doctors and to Dr. Cecil Hershler, a physical medicine and rehabilitation
specialist, whose consultation report dated June 8, 2006, was placed in
evidence. Ms. Narain reported to Dr. Hershler that following the 1999 accident,
she began to develop some pains in her upper and lower back, and over time the
symptoms in her upper back resolved, but she was left with persistent pains in
her low back and hips and her low back became numb with prolonged sitting at a
computer or a desk. She reported to Dr. Hershler that since the accident she
had not done too much exercise. Although she had gone to the gym for a while
she did not do any specific strengthening of her pelvis muscles or buttock
muscles. She was concerned that working as a medical secretary she is forced to
sit for long periods and had noticed at school that this triggers back pain and
numbness. Dr. Hershler noted an approximately eight-year history of episodic
low back pain and numbness and wasting in the left buttock. He also noted that
a recent MRI had ruled out a disc herniation, but did not rule out a remote
nerve injury. Dr. Hershler’s recommendation was strength training with emphasis
on trying to build up the mass of the left buttock.

[29]       
Ms. Narain testified that the December 2005 motor vehicle accident had
aggravated her pre-existing injuries from the 1999 accident, but I note that
Dr. Hershler’s June 2006 letter makes no reference to the 2005 accident, and Ms.
Narain settled her claim with the insurer in respect of both accidents at the
end of 2006, just prior to starting her employment with Flora in January 2007.

[30]       
Ms. Narain acknowledged in cross-examination that before the February
2009 accident, she was still getting headaches and back pain, but they were
getting better with all her gym work.

[31]       
Earlier reference was made to Ms. Narain’s emotional health. Dr. Anton
notes that her anxiety and depressed mood pre-dated the accident, but may have
been exacerbated by stressors specific to the accident. A major pre-accident
stressor was the desertion of her husband, after approximately one month of
cohabitation following his belated entry into Canada in June 2008. Prior to his
arrival, he had asked her to buy a considerable amount of furniture, which she
purchased on credit. One of the pre-existing and continuing sources of her
depression is her resulting indebtedness. Ms. Narain agreed that she had
received counselling from her family doctor in October 2008 for depression
connected to her marriage breakdown.

The Reliability of the Plaintiff’s Evidence

[32]       
The third party is correct in suggesting that there were troubling
inconsistencies in Ms. Narain’s evidence, which should cause the court to
question the reliability of her evidence, particularly with respect to her
pre-existing condition. There were internal inconsistencies within her trial
testimony and inconsistencies between various past reports and between trial
testimony and previous reports.

[33]       
Ms. Narain corrected her earlier trial testimony by acknowledging in
cross-examination that she had not actually met her Fijian husband as an adult
before she went over to marry him in May 2007.

[34]       
One of the more significant inconsistencies, because it related more
directly to her disabilities than did some of the others, concerned her
tolerance for sitting for long periods. She acknowledged at trial the accuracy
of contemporaneous records indicating that she reported sitting tolerance
limited to two hours as of September 2009, and by November 2009 it was four
hours with changing positions. At examination for discovery on August 18, 2011,
when asked how long she could sit before her back would start to stiffen up
when she first returned to work after the accident (which was in November
2009), she responded “Probably 45 minutes, 35 to 45 minutes and then I’d have
to get up and walk around.”  Then, when asked to state how long she could sit
in January 2011 before it started to stiffen up, she said “A little bit longer;
maybe an hour an hour and 20.”

[35]       
Clearly the passage of nearly two years would be expected to affect her
memory of her sitting tolerance specifically in November 2009, but it appears
that she either took an unacknowledged guess or simply made up an answer to the
those questions at her examination for discovery.

[36]       
Counsel for the third party pointed out Ms. Narain’s convoluted and
inconsistent explanations of her weight, her exercise regimen and her
participation in sports at various times in the past.

[37]       
Once again, allowances must be made for the general frailty of human
memory on some specific matters, but I did find Ms. Narain’s inconsistency on
several matters significant enough to affect her overall reliability as a
reporter.

[38]       
Perhaps no one can be expected to accurately remember what their weight
was on specific past dates, for example, but at her examination for discovery
on August 18, 2011, Ms. Narain said she then weighed 158 lbs compared to
175-180 lbs at the time of the accident in February 2009; in October 2010, she
reported to Dr. Anton that she then weighed 170 lbs, having gained a lot of
weight since the accident, when she had weighed 130 lbs. It is very difficult
to explain such a glaring inconsistency in a manner that could restore the
court’s confidence in the reliability of Ms. Narain’s evidence.

General Damages, Non-Pecuniary Loss

[39]       
One of the universal difficulties in assessing or quantifying pain and
the consequent effect on enjoyment of life is the subjective nature of pain. As
Dr. Anton pointed out in his first report, it is not possible
to objectively quantify disability due to pain. Doctors generally accept
the self-reporting of their patients as factual. The court must assess the
reliability of the plaintiff’s testimony in the context of the adversarial
process, where testimonial reliability is questioned, sometimes with vigour, as
in this case. The universal difficulty with assessing the effects of a
plaintiff’s pain is compounded in this case, because the issue involves
comparing Ms. Narain’s pain levels and disabilities pre-existing the subject
accident to pain levels and disabilities following the accident, based on her
self-reporting in the past and at present, overlaid with pre-existing and
ongoing depression.

[40]       
Ms. Narain suffered a number of minor injuries in this accident that were
transitory or fully resolved within a number of weeks. Specifically, the last
six injuries listed in Dr. Anton’s reported quoted in para. 14 above fall into
that category. The most significant of her injuries were the aggravation of
previous soft tissue injuries to her low back and a new injury to her knee,
which has resulted in continuing pain. Although Ms. Narain also expressed
concern about the appearance of a scar from the laceration on her knee, I find
her concern in that regard overstated. There were no photographs of that injury
in evidence, and when she displayed it to the court from the witness box, albeit
at a distance of approximately four metres, I had difficulty discerning the
scar.

[41]       
Dr. Anton suggested the possibility that Ms. Narain’s continuing
psychological symptoms affected her participation in activities. He recommended
that she be referred to a psychiatrist regarding specific psychiatric diagnosis
and associated disability. There was no psychiatric evidence in this case, but
on my view of the existing medical evidence, the plaintiff’s evidence, and the
evidence of her three female friends who testified, I find it is likely that
the post-accident changes in Ms. Narain’s activities and social contacts are
more related to her psychological symptoms than to her physical disabilities.

[42]       
It is noteworthy that the plaintiff’s second cousin and friend, Sonja
Sharma, described the plaintiff prior to the accident as free-spirited and
happy-go-lucky, but less so post-accident.

[43]       
Julie Samant spent a lot of time with the plaintiff in the two years
prior to the accident, and their activities together included going to the
beach, going out to dinner, and dancing. She testified that the plaintiff was
much happier and confident before the accident, and she sees her now as having
no confidence and being unhappy. She said that they had not done much together
in the last two years; Ms. Samant describes herself as being busy, but the
plaintiff has declined to join her in activities saying that she could not
because of pain. When asked if she thought Ms. Narain could work out at a gym
every day, she stated emphatically “Oh no!”

[44]       
 Ms. Samant’s evidence is quite revealing when contrasted with that of
Tracey Cheung, a former workmate of Ms. Narain between the time that Ms. Narain
returned to work following the accident and her termination; that is, between
November 2009 and August 2011. Ms. Cheung testified, in cross-examination, that
after August 2010 she went to a gym with the plaintiff for one hour after work,
five times per week, and that they saw each other almost every weekend. It
would appear that the plaintiff’s portrayal of her circumstances to Julie Samant
must have involved a significant psychological component.

[45]       
The third party’s argument that Ms. Narain has failed to mitigate her
damages is most pertinent in respect of her failure to follow up on the
psychological intervention recommended by Dr. Anton. Ms. Narain, already in
need of counselling and psychiatric consultation prior to the accident for the
stressor of her marriage breakdown, subsequently had the stress of not only the
accident, but losing her employment and a lengthy period of unemployment, as
well as this litigation. Clearly, Dr. Anton’s recommendation of further
psychological intervention should have been pursued.

[46]       
Notwithstanding Dr. Anton’s comment that her length of time off work was
reasonable considering the nature of her injuries, his opinions are expressly
dependent on the accuracy of Ms. Narain’s self-reporting, and I do not think the
length of her work absence is an objective measure of the severity of her
injuries for the purposes of comparing this case to others. I note that Dr.
Anton first met and examined Ms. Narain ten months after her return to work,
and her own family doctor had recommended that she attempt a return to work as
early as three months after the accident. Ms. Narain’s work record suggests
that she was not highly motivated to work, and during her convalescence she
received some funds from ICBC and long-term disability benefits. Additionally,
in my view, she has made only a token effort to find new employment and no
effort to undertake the upgrading she spoke of after she lost her job in August
2011.

[47]       
Ms. Narain did not exhibit any discomfort while seated for extended
periods of time in the witness box at trial.

[48]       
The ongoing pain in her knee is largely unexplained. A recent imaging
displayed a benign bone tumor, which Dr. Anton thought was a possible, but not
likely, cause of the pain. Dr. Anton was of the view that exercises to
strengthen the VMO component of her quadriceps muscle is a key component of
treatment to restore more normal function of the patellofemoral joint where the
pain originates.

[49]       
Although Dr. Anton said it was too early to predict Ms. Narain’s final
prognosis, she will at best improve to the point where she continues to have
episodes of back pain similar to those she had before the accident.

[50]       
The plaintiff submits that the appropriate award for non-pecuniary
damages is $65,000.00. The cases submitted for comparison were:

Boyle v. Prentice, 2010 BCSC 1212, ($65,000);
Marchand v. Pederson, 2011 BCSC 852, ($65,000);and
Simmavong v. Haddock, 2012 BCSC 473 ($75,000)

[51]       
The third party submits that the plaintiff has suffered a moderate
whiplash injury from which she has, or will, make a full functional recovery to
her pre-accident state, and submits that the appropriate award is $35,000.00 to
$45,000.00. Reference is made to the following cases by the third party:

Sudbury v. Kohlen, 2007 BCSC 1369;
Lim v. Anderson, 2012 BCSC 263;
Daitol v. Chan, 2012 BCSC 209; and
Milburn v. Ernst, 2012 BCSC 93

[52]       
The range in the cases cited by the third party was $45,000.00 to
$60,000.00.

[53]       
In my view, an award of non-pecuniary damages in the amount of
$50,000.00 as compensation for pain, suffering, loss of enjoyment of life, and
loss of amenities, is fair and reasonable in the context of comparable cases. In
assessing that award, I have taken into account the plaintiff’s failure to
mitigate by not acting upon Dr. Anton’s recommendations for psychological
assessment and therapy and for professionally directed exercises to strengthen
her VMO muscle.

Past Loss of Income

[54]       
During their closing submissions, counsel expressed an expectation that
they might be able to agree on the quantum of past wage loss, subject to my
decision on the mitigation issue. I was subsequently advised that past wage
loss is agreed to be $18,225.00 on that basis. Ms. Narain’s long-term
disability insurer is subrogated to the amount of $8,504.20 from the award
under this head of damage, if I correctly understand the evidence.

[55]       
I am satisfied that Ms. Narain was probably physically able to at least
attempt an earlier return to work as suggested by her family doctor, but there
is no evidence that part-time work was available to her any earlier than
approximately early October when Flora offered her a gradual return to work. On
her evidence, she declined that offer because she did not feel emotionally
ready to return at the time. The evidence does not enable me to quantify the
wage loss that would have been ameliorated if she accepted that offer; the
terms of the offer were not presented, and one can only speculate as to whether
Ms. Narain would have returned to full-time employment by November 9, 2009, as
she did, if she had started in October on a graduated basis.

[56]       
I award the sum of $18,225 for past loss of income.

Loss of Future Earning Capacity

[57]       
This is the most contentious head of damages in this case. The plaintiff
seeks an award of $150,000.00, and the third party submits that the plaintiff
has failed to establish that she has suffered any lost earning capacity.

[58]       
The difficulties of proof include the fact that Ms. Narain had some
pre-existing pain, but there was no pre-accident assessment of her function to
provide baselines for the functional capacity evaluation of Ms. Narain
performed on December 21, 2011 by Mr. Pakulak of Harbourview Rehabilitation or
the vocational assessment by Lawless Consulting conducted on November 29, 2011.

[59]       
The plaintiff relies on the following passages from Mr. Pakulak’s
report:

In my opinion, Ms. Narain is best suited for activity
requiring light level strength. She demonstrated functional limitations
specific to prolonged and repetitive below waist level work,
prolonged and repetitive overhead work, prolonged positioning of the neck and
shoulders, forceful or repetitive use of the arms and shoulders and prolonged
sitting. She did demonstrate the strength sufficient for some activity at the
entry level of the medium category but given her response to testing
(significant increases in pain levels during the assessment and a reduction in
work pace and capacity over the course of the assessment) it is anticipated
that prolonged activity above a light level and/or without provisions for the
above limitations will adversely impact her productivity and safety.

In my opinion, Ms. Narain demonstrated the
physical capacity to be employable at up to a light level on a full or part
time basis with restrictions and limitations as noted above. Below waist
level work should be kept to an occasional basis. If she is required to
complete tasks requiring prolonged positioning of the neck and shoulders for
overhead work or for work in front of the body (including below waist level
work) or forceful use of the arms and shoulders, she will be expected to
experience increases in symptoms that will be likely to result in reduced
productivity over time. If these positions are required, provisions for
microbreaks should be available in order to assist her in managing increases in
symptoms. If completing work requiring prolonged sitting, she will require the
flexibility to take breaks to shift and change positions and would benefit from
the provision of ergonomic equipment to reduce back strain.

It is also my
opinion that her overall ability to compete for work in an open job market is
significantly reduced due to her ongoing injuries and resultant physical
limitations. That is, the overall number of jobs that she would be able to
compete for given her physical limitations are significantly limited.

With respect to
her previous work as an inside sales person, the physical demands of that work
are described in the NOC under the category of Sales Representatives Wholesale
Trade (non-technical) (6411) and are described as requiring light level
strength, sitting, standing and walking, verbal interaction and near vision.
Given her reported job demands and my experience working with others in this
occupation, I would concur with this description. It is my opinion that she did
demonstrate the capacity to complete this work on a full time basis at a
competitive and sustainable pace. That said, testing results suggest that the
demands for prolonged sitting and prolonged positioning of the neck and
shoulders for work in front of the body will continue to result in increases in
symptoms. She will require the flexibility to take microbreaks and will benefit
from the provision of ergonomic equipment to reduce back strain.

[60]       
The third party points out that Mr. Pakulak’s opinion confirms the
plaintiff’s capacity to perform the functions of her previous job on a full-time
basis at a competitive and sustainable pace.

[61]       
The third party submits further that the court should only consider
impairment of capacity in respect of jobs in fields that the plaintiff actually
worked in, was trained in, or for which she has aptitude or interest. I agree
that application of the “real and substantial possibility” test to future
losses effectively eliminates from consideration innumerable jobs that were
never real possibilities for Ms. Narain.

[62]       
The plaintiff places specific emphasis on the following portions of the
vocational consultant Mr. Lawless’ January 13, 2012 report:

Regarding Ms. Narain’s post-injury
vocational options, the information I reviewed indicates she has pain related
restrictions for strenuous occupations, plus limitations for ones that involve
sitting. Secondary emotional issues may also be affecting her. These alter her
vocational prospects at a point still early in her working life.

…Also I think potential employers would be
less willing to accommodate applicants like Ms. Narain, as they usually have
many other applicants without physical limitations to [choose] from. A further
concern that affects her in all sales related occupations is that more than
most others, sales needs enthusiasm, motivation and a positive presentation on
the part of the sales personnel. Those without such personal characteristics
often aren’t competitive in this area. Although Ms. Narain has some experience
here, she’s been noted to have mood issues along with a downbeat personality
profile. I’m reluctant to advise someone for work in sales who is not free of
emotional difficulties and has a generally positive disposition.

In addition to the aforementioned
limitations for occupations Ms. Narain had worked in and aspired to, she is
facing a loss of potential access to the labour market generally. That is,
there will now be fewer jobs she could perform (or perform without difficulty)
compared to before her accident. Such a reduction of vocational potential is
especially salient for a younger worker like herself. To explore this potential
loss I analyzed the NOC using the HRSDC’s on-line search tool that can
determine the number of occupations potentially available to Ms. Narain before
and after her injury by examining the NOC database of 923 Occupational
Unit Groups and Subgroups with reference to criteria determined by her
interview, vocational testing, and documentation.

In putting together a pre-injury profile for
Ms. Narain, I considered she was capable of college level education. For
aptitudes I considered her scores from the vocational test battery along with
the listings for occupations in which she has worked. For physical capacity I
assumed good health and no restrictions before her accident, including suitably
for "Medium" strength work (defined as lifting up to 20kg). The
analysis from this profile revealed potential access to 457 Occupation Unit
Groups and Subgroups in the NOC data base.

In determining Ms. Narain’s post injury
profile, I kept the above factors constant except for reducing her strength to
"Light" (defined as lifting up to 10kg) and excluding "Other
body positions" (bending, stooping, kneeling, etc.) to reflect the medical
and allied information. Accordingly the analysis eliminated 173 job titles, or
about 38% reduction to her pre-injury profile. I then ran a second analysis
removing, as well, sitting. This isn’t to say she is restricted from such
occupations but limited in them. A further 93 job titles were affected, or 20%.
What this means in lay terms is that of all the occupations Ms. Narain might
have accessed before her accident, she is restricted from over a third now and
may have difficulty in another fifth. From a vocational rehabilitation
perspective, this represents a significant loss of opportunity.

My final concern
for Ms. Narain is that her difficulties place her at greater risk of future
unemployment and underemployment. It’s impossible to accurately quantify
anyone’s risk for this, although it’s been well established in research that
disabled persons on a whole are less attached to the workforce. That’s
especially true if they are young and female. For this reason it’s ever more
important for Ms. Narain to [choose] an appropriate vocational path, so a short
course of vocational counselling is in order. A half dozen sessions should
suffice, and this service is normally charged at around $100 per one hour
session.

[63]       
The weight to be attached to Mr. Lawless’ report and opinions is
affected by some of the assumptions he makes in the absence of a pre-accident
baseline. As the third party pointed out, Mr. Lawless assumed the plaintiff’s
ability to access medium strength jobs pre-accident without an evidentiary
basis or asking the plaintiff, and he assumed she was capable of graduating
from college without knowing what her grades were in high school. She was in
fact an average to below average student with particularly poor skills in
mathematics.

[64]       
Mr. Lawless noted the limitations relating to Ms. Narain’s emotional and
mood issues, which in my view are not only the symptoms most definitely
pre-existing the accident in question, but also are the symptoms that are
clearly amenable to the treatment recommendations of Dr. Anton, which Mr.
Lawless does not mention.

[65]       
In my view, the evidence does not establish a real and substantial
possibility that the added psychological stress of this accident and the resulting
injuries will have a permanent or lasting effect on the plaintiff’s
psychological health so as to be a contributor to any loss of future earning
capacity over and above the effect of her physical injuries.

[66]       
Dr. Anton’s second report noted the loss of her job as an additional
stressor for Ms. Narain. Considering Ms. Cheung’s evidence of how active she
and the plaintiff were in the year preceding that job loss, and the plaintiff’s
relative inactivity and lack of motivation in seeking employment or retraining since
her termination, I think it is likely that her depressed mood since August 2011
is in greater part due to that termination, rather than to the residual effects
of the accident, which she had worked through for nearly two years and which
had apparently not been significant enough to motivate her to seek the
assessment and therapy recommended by Dr. Anton.

[67]       
In my assessment the plaintiff’s pre-accident ability to earn income has
been impaired to some degree by the aggravation of pre-existing back pain
symptoms and new knee pain symptoms, both of which are attributable to the
accident, and are not yet fully resolved. The resolution of these symptoms is
being delayed by pre-existing psychological issues and the unrelated
post-accident stressor of being fired.

[68]       
I do not accept the third party’s argument that Ms. Narain has fully
recovered her pre-accident state of health and that her capacity to earn income
is undiminished. Nor do I accept the measure of damages suggested by the
plaintiff as being fair and reasonable. There is a reasonable prospect of full
recovery to pre-accident status with the appropriate interventions and
therapies, but there is a real and substantial possibility that her pain
symptoms will not fully abate to that point. In the latter event, I find that
the plaintiff will suffer an impairment of her earning capacity in one or more
of the ways described in Brown v. Golaiy, [1985] B.C.J. No. 31.

[69]       
I assess the value of her potential loss of future earning capacity at
$30,000.00.

Loss of Housekeeping Capacity

[70]       
Mr. Pakulak opined that, although Ms. Narain has been living with her
parents since the breakdown of her marriage, and demonstrated a capacity to do
light household cleaning chores provided she paced herself, she would require
assistance to do more physically demanding chores, “consistent with her
reported difficulties”. He anticipated that she would need increased levels of
assistance if she moved into her own home or had children. This opinion relies
on Ms. Narain’s self-reporting and apparently presumes there will be no further
improvement in Ms. Narain’s back pain. That presumption is inconsistent with
Ms. Narain’s report to Dr. Anton in October 2011 that her back pain had
improved and was continuing to improve.

[71]       
Mr. Pakulak declined to predict how much help she might need because
this would depend on the size and layout of her future home and the number of
children she might have. In my assessment, and considering the gym routines she
is presently performing, one to one and a half hours per day, five days per
week, if Ms. Narain’s mother was not doing the vacuuming in their home, Ms Narain
would be capable of doing it, although she may have to pace herself until she
conditioned her back.

[72]       
The claim under this head of damages is intended to compensate for
necessary replacement services. Ms. Narain clearly has no current loss, but
there is a contingent possibility of a future loss, the value of which I assess
at $5,000.00.

Cost of Future Care

[73]       
The plaintiff submits future care costs with a present value totalling
$26,573.00, plus HST for rehabilitation/treatment, assistive devices and
medication (Advil). This claim is based primarily on costing Mr. Pakulak’s
recommendations, which incorporate Dr. Anton’s recommendations in respect of
psychological assessment and therapy, and a kinesiologist.

[74]       
The third party suggests the proper assessment is $6,520.00, with the
largest single item of disagreement being $11,002.00, plus HST, claimed by the
plaintiff for a fitness pass. The third party’s position is that the plaintiff
went to a fitness club before the accident and strength training was
recommended as ongoing treatment from the March 1999 accident, so the need for
a fitness pass does not arise from this accident. I find that the fitness pass
is required to fully implement the exercise therapy, but I think it is fair and
reasonable on the evidence in the case to provide for both for a period of five
years from the date of trial, rather than for the plaintiff’s lifetime.

[75]       
There is no disagreement that the plaintiff requires exercise therapy,
psychological assessment and counselling and vocational counselling. The third
party expressly agrees with the cost of psychological counselling at $3,010.00.

[76]       
The third party submits that the assessed future care costs should be
discounted to reflect the possibility that the plaintiff will not make use of
the recommended services, as she did not follow previous recommendations and
did not follow up with Dr. Hershler after she settled her previous claims. I do
not find that suggestion appropriate.

[77]       
Mr. Pakulak’s costing includes a vocational assessment, but this has
subsequently been done by Mr. Lawless for trial purposes. Mr. Lawless
recommended six sessions of vocational counselling which is normally charged at
$100.00 per one hour session.

[78]       
Using the mid-ranges of Mr. Pakulak’s estimates and the present value
tables provided, I assess the award for future care costs at $10,225.34. The
components of that sum are as follows:

Special Damages

The plaintiff claims a total of $3,284.73 for a laptop computer,
a stereo, and clothing destroyed in the accident, and user fees for
physiotherapy and a gym membership. The third party agrees to the user fees,
but suggests the electronic items lost were probably not worth the cost
incurred to replace them, and I should award one half the value claimed. I do
not think that the plaintiff should be expected to search for and purchase an equivalent
value used laptop or stereo. Replacement cost is the usual starting point in
assessing damages relating to destroyed property. Adjustment can be appropriate
if any resultant betterment is significant, but the evidence presented does not
lead me to that finding. I award special damages in the sum of $3,284.73.

Summary of Awards

[79]       
I have made the following assessments:

Costs

[80]       
The parties may apply if there are pre-trial circumstances unknown to
the court that bear on the issue of costs, but if there are no issues of that
nature, the plaintiff is entitled to costs on Scale B.

“I.C. Meiklem J.”

MEIKLEM J.