IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120626

Docket: M136286

Registry:
New Westminster

Between:

Tanya Unger

Plaintiff

And

Chad Bruce Bailey

Defendant

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
This is an assessment of damage claim arising out of a motor vehicle
accident of June 30, 2010 for which the defendant has admitted liability.

[2]            
The issue for damages for the plaintiff is the extent to which she was
injured in the June 30, 2010 motor vehicle accident compared to her
pre-accident condition and the effect that has on her claims for future losses.

The Plaintiff

[3]            
Ms. Unger is a 33-year-old single woman with no dependents who has
had a succession of motor vehicle accidents in the past leading up to this accident.

[4]            
In 1999 she was involved in a single vehicle accident in which she
sustained a fracture to the C5 disc in her spine and underwent a fusion between
C4 and C6.

[5]            
Following recovery from that accident she was able to resume her normal
activities although she told her family doctor that her neck and back would
bother her after strenuous activity.

[6]            
On August 31, 2000 she was involved in a second motor vehicle accident
when the vehicle she was driving hit a parked vehicle. In that accident she
sustained neck and back pain that continued to bother her when she was involved
in a third motor vehicle accident on December 15, 2000.

[7]            
That accident exacerbated her neck and back pain that was still symptomatic
and gave her headaches.

[8]            
The next motor vehicle accident that she had was on February 10, 2007
when the vehicle she was in struck a tree and cement barrier. She again
suffered neck and back pain that she says she was experiencing only
occasionally up to that point in time. She says these symptoms of neck and back
pain completely resolved prior to a fifth accident of July 21, 2008.

[9]            
In that accident she sustained further neck and back pain and headaches which
she continued to complain of through to 2010, although she was able to return
to work by December 2008.

[10]        
She started a lawsuit as a result of the July 21, 2008 accident which
settled prior to the trial of this action. She says in that lawsuit there was
no claim for future losses.

[11]        
On June 30, 2010 she was operating her vehicle on 68^th Avenue
in Langley at 197^th Street when the defendant’s vehicle attempted a
left-hand turn off 197^th Street right in front of her vehicle. There
was no time for her to apply her brakes or stop and her vehicle broadsided the
defendant’s vehicle at the driver’s door.

[12]        
In this accident she suffered a minor bruise and cut to one of her knees
that resolved quickly but immediately felt stiffness in her neck and shoulders.

[13]        
She attended a walk-in clinic on July 1 while her family doctor was on
holidays. There x-rays were ordered and she was given pain medication and
referred for physiotherapy.

[14]        
Her family doctor was Dr. Cameron Smith and he saw her for the
first time on July 19, 2010 with complaints of disrupted sleep, headaches, neck
pain and upper and lower back pain.

[15]        
The plaintiff agrees that she had occasional flare-ups of her neck and
back pain before this accident and some restrictions on strenuous activities, but
says she had otherwise returned to all her previous activities.

[16]        
She was off work at the time Dr. Smith saw her and he kept her off
work until she returned gradually to work on December 13, 2010, leading to a
return to full-time work by January 17, 2011.

[17]        
Since returning to work the plaintiff says she has missed some more days
from work when she has been in too much pain and discomfort with lack of sleep
from the night before to go to work. Otherwise she says she has not missed work
for any other reason.

[18]        
She received insurance short-term disability payments and long-term
disability payments while she was off work, which she is required to repay.

[19]        
She says that her headaches and pain continued unabated for the first
six months after this accident before there was any improvement. In that
six-month period she had trouble with many activities such as sleeping, shoulder-checking
while driving, washing her tub, blow-drying her hair or even lifting her arms
above her head.

[20]        
She says the pain was constant.

[21]        
Around the end of 2010 she fell into a short period of depression that
was treated with anti-depressant medication for a time, but she has been
resistant to all medication throughout and she says her depressive state has
resolved into mere frustration now.

[22]        
The plaintiff through all the years has maintained a very physically
active lifestyle. She has been very dedicated to keeping up her physical
fitness including attending the gym to regularly work out, exercising outside,
swimming, and running and walking trails. She had to modify her activities
substantially in the first six months after this motor vehicle accident but
since then has tried to maintain her activities although to a lesser extent
because of ongoing pain in her neck and back.

[23]        
Dr. Smith has encouraged her throughout to engage in an active
exercise program which she is doing, and she has received the same advice from
the physical medicine and rehabilitation specialist to whom Dr. Smith has
referred her, being Dr. Chu.

[24]        
Until December 2010 Ms. Unger was taking physiotherapy and massage
therapy as prescribed, twice a week for both. Around that time she stopped the
physiotherapy because she continued thereafter doing the same exercises at
home. However she has continued since then to take massage treatments.

[25]        
Although her neck and back pain had decreased somewhat by December of
2010 she says that her symptoms have never cleared up and have always remained constant
to the present time. Her headaches can still be present as well occasionally depending
on the quality of the sleep she receives. Her sleep can still be disrupted by
pain every couple of weeks.

[26]        
Turning her head still causes pain in her neck and looking down as she
is required to do at her employment also causes her neck pain.

[27]        
She does agree however that there has been a 60% improvement in her neck
since 2010.

[28]        
The plaintiff has a Grade 12 education following which she completed a
six-month program at Vancouver Community College to become a medical laboratory
assistant. She has remained in that employment for the past five years. She
says her job requires her to look down a lot which not only causes her neck
pain but also gives her a headache.

[29]        
Dr. Smith referred her to Dr. Chu who carried out two
anaesthetic injections in her neck to determine whether her neck pain could be
blocked. These injections were very painful but beyond very temporary relief
were unsuccessful.

[30]        
She was also referred to Dr. Rankin, an anaesthetist, who performed
more injections to determine the source of pain. She says this was one of the
most excruciating experiences she has gone through and it left her neck bruised
and sore for a few days. Unfortunately that procedure was unsuccessful as well.

[31]        
Presently none of her consultants have any ideas of how to improve her
neck and back pain. She says that the pain has not changed much since the end
of the first six months after this accident and the pain never goes away.

[32]        
She takes headache and anti-inflammatory medication very occasionally
because she doesn’t like to take medications.

[33]        
Presently she says that driving long distances can be a problem because
of having to sit in one position although she says that having to turn her head
to check for traffic is no longer a problem. She says she still goes to boot
camp which is a one hour high intensity workout but not as often as she used to
as her upper back and neck hurt the following day if she does too much.

[34]        
She also doesn’t ride her horse as much as she did before as that tends
to aggravate her back as well.

[35]        
She does however run on the track and on the trails which she says she
does a few times a week for 30-60 minutes.

[36]        
She says she can no longer go to movies as she cannot sit in one
position for any length of time before her neck and back begin to ache.

[37]        
She has trouble sweeping and vacuuming, mopping and scrubbing the tub.
She hasn’t hired anyone to do this as she says if she doesn’t do it, it just
remains undone.

[38]        
She is not sure what her future career plans are. She says she would
like to change her career to one that won’t affect her neck when looking down
and doesn’t require her to sit or stand for a long time in one position.
However no concrete plans have been made.

[39]        
She still takes massage treatments and intends to continue to do so.
These treatments cost $33.60 per session and she is taking one session every
two weeks.

[40]        
She has had two vacations since the accident, once to Mexico in February
2011 and once to Osoyoos in the summer of 2011. She says the flight to Mexico
was a problem for her back although the vacation to Osoyoos was nothing but
enjoyable.

Dr. Smith

[41]        
Dr. Smith is supportive of the plaintiff’s complaints. He has been
her family physician since 1998.

[42]        
In his report of February 16, 2012 filed at trial, he reviews the
previous motor vehicle accidents in which she was involved, and acknowledges
that following the 1999 disc fusion surgery while she was able to resume normal
scheduled activities of daily living, her neck and back continued to bother her
after strenuous activity.

[43]        
For the second accident of August 31, 2000 he refers to her as having suffered
a paracervical myofascial strain that continued to bother her when she was
involved in the third motor vehicle accident on December 15, 2000. In that
accident he says she suffered exacerbation of her myofascial paraspinal strain
(I assume to be the same as her paracervical myofascial strain).

[44]        
He describes a myofascial pain as a soft tissue syndrome that animates
from muscles and their attachments and can be influenced by activities of daily
living that load a particular muscle or sustain a posture.

[45]        
A soft tissue injury serves as the catalyst for the development of
myofascial pain which is then perpetuated by aggravating factors in everyday
activities of daily living.

[46]        
In the February 10, 2007 motor vehicle accident he says the plaintiff
also suffered a paraspinal strain but he says her symptomatology resolved thereafter
and no mention was made of any residual headache, neck or back pain in
subsequent office visits later in 2007 or 2008 prior to the motor vehicle
accident of July 21, 2008.

[47]        
In that motor vehicle accident of July 21, 2008 he says she suffered
pain in her neck, shoulders and back along with headaches, resulting in poor
sleep, difficulty raising her left arm in abduction and an inability to
houseclean.

[48]        
He diagnosed myofascial paraspinal strain from this accident and he kept
her off work until a graduated return to work on November 17, 2008. She
continued to complain of stationary sitting at work, pain in her neck and
shoulder areas with lifting laundry baskets, reaching, bending over, getting in
and out of vehicles, and shoulder checking while driving.

[49]        
When he saw her on March 15, 2010 she described a 30 minute driving
tolerance and a continuing difficulty of shoulder checking when driving. She
was attending at that time in the gym four times a week doing cardio weights
and elliptical training and she had enrolled in a cardio boot camp three times
a week and was tolerating that activity.

[50]        
In his report of February 16, 2012 he reports that when he saw her on
March 15, 2010 she complained of leg and neck pain and low back pain and
examination at that time was consistent with her myofascial paraspinal strain.

[51]        
He reports that she still had to modify some activities such as leaning
over or lifting, putting her shoes on, tying laces, and cleaning tubs and
toilets. She was taking pain medication as needed.

[52]        
In a report of March 19, 2010 that he wrote for the July 21, 2008 motor
vehicle accident he acknowledged that the plaintiff had experienced myofascial
paraspinal strains for a period of time following her previous accidents but
said that they had all eventually resolved over time.

[53]        
He pointed out in this report that it was at that point in time 21
months since the 2008 accident and her choice of employment and commuter
distances from home, the developmental opportunity for social relationship
building and the pursuit of recreational leisure activities had all been
affected by the ongoing myofascial paraspinal strain.

[54]        
Nevertheless he considered her prognosis at that time for future health
to remain good.

[55]        
He subsequently saw her on June 8, 2010 for medical problems unrelated
to the 2008 motor vehicle accident and says there was no mention at that time
of any ongoing symptomatology referable to the 2008 motor vehicle accident.

[56]        
At trial he says from these facts he assumes that her symptomatology was
not significantly affecting her daily activities from March 15, 2010 to the
June 30, 2010 motor vehicle accident.

[57]        
When he saw her after the June 30, 2010 motor vehicle accident on July
19, 2010 she complained of disrupted sleep, headaches, neck pain, upper and
lower back pain, problems blow-drying her hair, not being able to read for more
than ten minutes or do computer work for more than ten minutes, and having
continuing difficulties doing shoulder checks while driving.

[58]        
His impression at that time was of an acute paraspinal strain and he
prescribed anti-inflammatory medication, as well as muscle relaxant medication
and analgesic medication. He also referred her for massage therapy and kept her
off work.

[59]        
In his report of February 16, 2012 he diagnoses her with myofascial
paraspinal strain, chronic pain disorder and co-morbid depression. He
acknowledges that her case is complicated by the evidence of myofascial
paraspinal symptoms being present following her previous motor vehicle
accidents.

[60]        
In this report he says the following:

… In Ms. Unger’s case, it is difficult to ascertain if
the ongoing myofascial paraspinal symptoms are a reflection of the relative
acuteness of the motor vehicle accident on June 30, 2010, or merely an
extension of the chronicity of the symptomatology evidenced, prior to the motor
vehicle accident. Ms. Unger had been seen in the office prior to the
accident, on June 8, 2010. This was for medical problems not related to the
previous motor vehicle accident but there was no mention at that time of any
on-going symptomatology referable to the 2008 motor vehicle accident.

In any event, the myofascial paraspinal strain syndrome can
often lead to the diagnosis of a Pain Disorder. A Pain Disorder is specified as
being chronic if the duration of the pain is six months or longer. The
essential features of pain disorders are pain that is the predominant focus of
the clinical presentation and is of sufficient severity to warrant clinical
attention. The pain causes significant distress or impairment in social,
occupational or other important areas of functioning. Psychological factors are
judged to play a significant role in the onset, severity, exacerbation or
maintenance of the pain. The pain is not intentionally produced or feigned. Ms. Unger
continues to have chronic pain which will in all likelihood continue
indefinitely at some lifestyle affecting level. Medications for pain will
undoubtedly be required indefinitely for the rest of Ms. Unger’s life, and
their use will coincide with the waxing and waning of symptoms, though complete
resolution of symptoms seems unlikely.

Depressive symptomatology can
occur in patients with chronic pain. It may amplify pain perception and in
itself cause significant disability. In fact, I have found in my practice,
patients have a tendency to underreport depressive symptomatology, as a result
of the perception of social stigmata associated with depression. Certainly
combinations of antidepressant, antianxiety and sleep medication have helped Ms. Unger
bring some stability to the depressive symptomatology component, influencing
her chronic pain. It is widely believed that mood disorders carry a risk of
recurrence. Surveillance of the need for use of antidepressant medication such
as Cymbalta, with its chronic pain control element, will be a key for Ms. Unger,
as would the ongoing adoption of cognitive behavioral psychological counseling
sessions.

[61]        
At trial he distinguishes the pain that resulted from the 2008 motor
vehicle accident, from the present pain disorder that he diagnoses, in saying
that from the 2008 motor vehicle accident the predominant symptom was not pain
but restriction of movement, while from the 2010 motor vehicle accident pain
has been the focus.

[62]        
He also says in his report that she is at significant risk of
development of cervical degenerative disc disease and early onset cervical
arthritis. He says a patient with myofascial paraspinal soft tissue injuries is
in theory at increased risk for the further development of degenerative disc
disease later in life, but the risk is usually small.

[63]        
At trial he clarifies that the risk of cervical degenerative disc
disease and cervical arthritis is not related to the 2010 motor vehicle
accident.

[64]        
He goes on to say that with the significant injury and spinal fusion in
the 1999 accident it is difficult to speculate how much affect the injuries in
the June 30, 2010 motor vehicle accident would have on the development of
cervical degenerative disc disease or early onset cervical arthritis.

[65]        
He says that the plaintiff will undoubtedly require the use of muscle
relaxants, anti-inflammatories, analgesics, anti-depressants and sleep
medications, while at trial he confirms that this is only in the case of
recurrences as the plaintiff is not presently taking any medications on any
regular basis.

[66]        
He concludes his report with a prognosis that her future health is good
at best and more probably fair when considering all factors, while at trial he
says the factors he is considering are all the previous motor vehicle accidents
and he agrees that her future health is probably only fair regardless of the
existence of the 2010 motor vehicle accident when considering all of her motor
vehicle accident history.

Dr. Chu

[67]        
In his report of October 13, 2011 Dr. Chu reviews the plaintiff’s
previous motor vehicle accidents and with respect to the July 21, 2008 accident
says that the plaintiff had a flare-up of her neck and back pain with headaches
but thereafter things improved to a certain degree with some residual pain and
discomfort in her neck intermittently before she was involved in the present
accident on June 30, 2010, which again flared up the pain in her neck.

[68]        
He considers her neck pain to be mostly mechanical pain with secondary
myofascial pain which he describes as widespread muscle pain.

[69]        
He describes mechanical pain as pain originating from specific
mechanical structures that can be pain-generators with the most common ones
being the facet joints and discs as a source of pain that sometimes can result
in chronic pain.

[70]        
He also recommends an active exercise program for the plaintiff and he
says that by the latter part of 2010 she reported having more good days than
bad days prior to returning to work.

[71]        
He describes her as having fluctuations of pain in 2011 depending on her
physical activities and he explains that with the fusion in her neck in 1999
other segments of her neck have to be able to move more to make up for the loss
of mobility in the fused joints and this puts more stress on the unfused joints
that can be more easily injured in any kind of whiplash accident.

[72]        
His diagnosis is that the plaintiff is experiencing mechanical neck
pain, probably facet joint pain in upper and mid neck, without any neurological
compromise. He also believes she has some secondary myofascial pain in the
shoulder girdle and neck musculature which he considers to be caused by a
tightening of the muscles surrounding the mechanical pain area leading to
further pain in the surrounding muscles.

[73]        
He also diagnoses some low back pain which he considers again to be
mechanical in nature from a disc herniation or disc tear but at trial he says
this low back pain was short-lived and due to low back pain that the plaintiff
had prior to the present accident in 2010 and unrelated to it.

[74]        
He considers that with each whiplash injury from her motor vehicle
accidents she developed mechanical neck pain and an increase of it, but it
settled down with some residual pain prior to the 2008 motor vehicle accident
when the neck flared up again and then improved again to a degree with some
residual pain remaining by the time of the June 30, 2010 accident.

[75]        
He considers that the 2010 accident has flared up the mechanical pain
again probably injuring the facet joints again and only settling down to a
certain degree with quite a lot of residual mechanical neck pain that
fluctuates depending on her physical activities that irritate the neck.

[76]        
He says in his report that the 2010 accident is responsible for a
certain part of her ongoing neck pain and spinal pain but just how much to
apportion to it is difficult to say. He thinks it is fair to say however that
this accident in 2010 has made things much worse.

[77]        
He has no recommendations to make for more testing. He considers it
might be useful to try some more anaesthetic blocks to see if the pain can be
localized but he acknowledges that he has already tried this and it has failed.

[78]        
He mentions another treatment option involving destroying nerve endings
that give sensation to the facet joints but says this is an invasive treatment
option that offers only short-term relief before the nerve endings grow back
and it is not a treatment option presently being contemplated.

[79]        
He recognizes that the plaintiff is quite motivated to keep active and
keep working and overall he considers that her level of disability of function
is fairly low.

[80]        
He does not consider that the 2010 motor vehicle accident added anything
new but simply added more of the same pain that she had experienced before and
he recognizes that she had improvement from her previous accidents before.
Nevertheless he considers that injury on top of injury diminishes recovery
chances.

[81]        
His prognosis is generally poor for resolution of the pain as there are
no specific cures that he can offer. He considers that the plaintiff has an
increased risk of developing accelerated degenerative changes in her spinal
segments that are not fused, both from the surgery in 1999 and from her
previous injuries as well as the 2010 injury.

[82]        
He says that just how much of an increased risk there has been as a
result of the 2010 motor vehicle accident is probably something that is not
knowable.

[83]        
He thinks that at some point the degenerative changes in her spine will
happen anyway with the spine having been fused.

[84]        
He considers her unlikely to require any surgical intervention as a
result of this mechanical neck injury or the last couple of mechanical neck
injuries and unlikely to be pain-free or recover fully from these injuries.

[85]        
He also considers that because of these injuries including the first
one, which would be in 1999, she is at increased risk of developing more
serious neck problems such as spinal stenosis although he says that is a
condition that won’t happen for a few decades down the road. He says the 2010
accident would not have increased this risk greatly.

Matthew Brass

[86]        
He is a friend of the plaintiff and has known her for about five years.

[87]        
He was aware of the 2008 motor vehicle accident when it happened and his
evidence is that the plaintiff’s injuries in that accident slowed her down for
about one and one-half years before she returned to approximately 95% of her
former self.

[88]        
He says that she has not really recovered from the June 30, 2010
accident. She tends to get down on herself for not being able to carry out her
activities as she did before and he says that he has to slow down for her when
he trains with her.

Deanna Phillips

[89]        
She has been a friend of the plaintiff’s since 1998. She says prior to
the June 30, 2010 motor vehicle accident they worked out together and went
to boot camp together.

[90]        
Since the June 30, 2010 accident she says the plaintiff does not
participate at boot camp to the extent that she did before.

Sandra Anderson

[91]        
She is a co-worker of the plaintiff and has worked with her for a few
years. She recalls the 2008 motor vehicle accident and the plaintiff’s return
to work when she was not yet fully recovered.

[92]        
She says that after the 2010 motor vehicle accident the plaintiff is
still not back to where she was prior to it and the plaintiff sometimes asks
her to use her pain medication. She says she can tell when the plaintiff is
stiff and in pain and it is not getting better.

[93]        
She agrees that this does not affect the workplace however as the
plaintiff continues to carry out all of her responsibilities like everyone
else.

Diane Unger

[94]        
She is the mother of the plaintiff. She owns a horse farm in Langley.

[95]        
In the spring of 2010 the plaintiff came on weekends to ride and she did
not see any limitations in her daughter at all.

[96]        
She says the June 30, 2010 motor vehicle accident had a lot of impact on
their plans to breed and train horses for barrel racing.

[97]        
She says she can see when the plaintiff is in a lot of pain and stiff
and sore.

Submissions

[98]        
Plaintiff’s counsel submits that the evidence demonstrates the plaintiff
had returned to her normal activities by the spring of 2010, before the June
30, 2010 accident, even though she still had some neck pain that occasionally
flared up.

[99]        
The June 30, 2010 motor vehicle accident gave her chronic pain and a
chronic pain disorder and provoked a period of depression along with painful
but unsuccessful medical procedures. Her prognosis now is only fair.

[100]     A claim is
made for non-pecuniary damages in the range of $65,000-$70,000 relying on a
number of awards made in other cases.

[101]     Special
damages are claimed and have been agreed upon in the amount of $4,560.55.

[102]     Past loss
of income has been partially agreed to in the amount of $15,500 and the
plaintiff seeks another $3,000 for loss of time from work after she had
returned to work in January 2011.

[103]     Cost of future
care is sought in the amount of $15,000 for the ongoing massage treatments.

[104]     A loss of
housekeeping claim is made in the amount of $10,000 or to be included in the
claim for non-pecuniary damages.

[105]     A loss of
future income-earning opportunity is also claimed in the amount of $25,000
which is said to be equal to approximately one year’s income, on the basis that
some occupations that otherwise would have been open to the plaintiff are now
closed to her because of her ongoing pain and restrictions of movement.

[106]     Defence
counsel concedes the plaintiff was injured in the June 30, 2010 motor vehicle
accident but says her claims are affected by her previous accidents and
injuries, especially the 2008 accident and injuries.

[107]     The
plaintiff was still having problems from the 2008 motor vehicle accident in
March 2010 and a diagnosis of chronic pain in 2012 from the 2010 motor vehicle
accident it is submitted should be considered suspect.

[108]     Dr. Chu
says there is an interplay between the plaintiff’s previous accidents and the
June 30, 2010 motor vehicle accident.

[109]     It is
submitted this is a case of application of the crumbling skull principle
whereby the plaintiff is not entitled to recovery for any of the symptomatic
injuries she was already suffering from at the time of the June 30, 2010 motor
vehicle accident and it is submitted the range for non-pecuniary damages should
be in the order of $25,000-$35,000 representing a two year injury from the 2010
accident.

[110]     Reliance is
placed on awards made in that range in other cases.

[111]     Special
damages are agreed in the amount of $4,560.55.

[112]     Past loss
of income is agreed in the amount of $15,500 and it is submitted no further
amount should be awarded because the plaintiff’s records indicate that she
missed significant time off work before the June 30, 2010 accident and there is
no indication of work days that she missed after she returned to work in
January 2011 that can clearly be identified as due to injuries in the 2010
motor vehicle accident.

[113]     No award
should be made for the loss of housekeeping claim as the evidence does not
support this claim and in any event it should be covered under the claim for
non-pecuniary damages.

[114]     The loss
of future income opportunity claim should be denied because the law requires a
real and substantial possibility of loss to support such a claim and the
evidence does not support this claim either.

[115]     The cost of
future care claim should be denied as the plaintiff was taking massage therapy
prior to the accident of June 30, 2010 and the necessity for it in the future cannot
therefore be tied to that accident.

Analysis and Decision

[116]     The
plaintiff has suffered injuries in six motor vehicle accidents to include the
present one on June 30, 2010.

[117]     Except for
the first accident in 1999 as a consequence of which a portion of her spine was
fused, the other five accidents have all resulted in her suffering neck and
back pain, and sometimes headaches.

[118]     By the
time of the accident of June 30, 2010 the plaintiff had resolved most of her
problems of pain and headaches but still had occasional flare-ups of her neck
and back pain and had to modify some of her activities.

[119]     Dr. Smith
says that it is difficult to ascertain if her ongoing myofascial paraspinal
symptoms are “a reflection of the relative acuteness of the motor vehicle
accident on June 30, 2010, or merely an extension of the chronicity of the
symptomatology evidenced, prior to the motor vehicle accident.”

[120]     He says
that when he saw the plaintiff on March 15, 2010 she complained of leg and neck
pain and low back pain and his examination at that time was consistent with a
myofascial paraspinal strain.

[121]     He then
goes on to say that in any event, the myofascial paraspinal strain syndrome can
often lead to a diagnosis of a pain disorder.

[122]     The fact
that he uses the phrase “in any event” indicates to me that he remains
uncertain as to the cause of her ongoing myofascial paraspinal symptoms even
though he says in his evidence at trial that he assumes from the fact that the
plaintiff did not complain on her visit of June 8, 2010 about her symptoms that
they were not significantly affecting her daily activities between March 15,
2010 and June 30, 2010.

[123]     The fact
that the plaintiff did not complain about her symptoms when she saw Dr. Smith
on June 8, 2010 for other reasons does not persuade me that she did not have
ongoing pain symptoms at that time. She was not at Dr. Smith’s office at
that time to discuss her symptoms but to discuss other medical issues affecting
her.

[124]     I accept
that her symptomatology may not have significantly affected her daily activities
between March 15, 2010 and June 30, 2010 because the plaintiff has always
carried out an active exercise program to improve her physical fitness and to
enable her to return to her former activities.

[125]     However, I
remain satisfied that her symptoms of back and neck pain remained in existence
after March 15, 2010 up to and including the time of this accident on June 30,
2010.

[126]     While I
accept the medical evidence that she suffers from chronic pain and will
continue to do so indefinitely as Dr. Smith has said, he has also said
that her future health is only fair regardless of the 2010 accident because of
the neck and back injuries from the previous accidents.

[127]     I also
accept Dr. Chu’s opinion that her level of disability of function is
fairly low because she is quite motivated to stay active and keep working.

[128]     Nevertheless
the plaintiff is still relatively young and presently focused on her fitness
and her motivation to remain as fit as she is now may wane over time as she
gets older and assumes more responsibilities in life.

[129]     I have
considered all the cases cited to me by both counsel on the issue of
non-pecuniary damages and I do not find any of them to be particularly helpful
because the facts of each are so unique.

[130]     The
plaintiff’s cases either deal with an accident where there were no previous
injuries, or an accident where there was substantial recovery from a previous
accident, or where there were two claims made as a result of two accidents
tried together, or where more serious injuries were involved than the plaintiff
here has suffered.

[131]     The
plaintiff is not to be compensated for her pre-existing injuries but only for
the injuries the June 30, 2010 accident caused her.

[132]     Taking
into account her continuing neck and back pain at the time of this accident of
June 30, 2010 and accepting the opinions of Dr. Smith and Dr. Chu as set out
above, I award her $50,000 for non-pecuniary damages, to include her claim for
loss of housekeeping ability.

[133]     Special
damages have been agreed in the amount of $4,560.55 and I award that amount for
this claim.

[134]     Past loss
of income is awarded in the amount as agreed of $15,500. I do not add any
amount to that figure because I have no idea how the $3,000 claim in addition
was arrived at.

[135]     I cannot
find any evidence of the plaintiff having taken massage therapy prior to the
June 30, 2010 accident. Dr. Smith says he referred her for massage therapy
after this accident.

[136]     Because I
conclude that her need for massage therapy is due in part to her pre-existing
injuries as well as the aggravation of those injuries that took place in the
June 30, 2010 accident, I award her the sum of $10,000 instead of the $15,000
claimed.

[137]     The
plaintiff is presently continuing to work at her employment as a medical
laboratory assistant. She returned to full-time employment after the 2010
accident by January 17, 2011 and continues to work full-time to the
present date.

[138]     For the
claim for loss of future income-earning opportunity I agree that with her
chronic pain disorder that will continue indefinitely there is a real and
substantial possibility of a future loss of income-earning capacity because
there will likely be employments that she cannot take on because of her chronic
pain.

[139]     As Mr. Justice
Finch (as he then was) said in Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353, she has been rendered less capable overall from earning income from all
types of employment, is less marketable or attractive as an employee to
potential employers, has lost the ability to take advantage of all job
opportunities which otherwise might have been open to her had she not been
injured on June 30, 2010 and is less valuable to herself as a person capable of
earning income in a competitive labour market.

[140]     At the
same time I recognize the uncertainty that both Dr. Smith and Dr. Chu
have had over how much of the plaintiff’s ongoing symptoms are related to this
accident of June 30, 2010 as opposed to simply an extension of her
symptomatology from the previous motor vehicle accidents.

[141]     The
plaintiff is presently functioning at a high level and Dr. Chu says her
level of disability is fairly low. She has remained in her former employment
and her co-worker Ms. Anderson says that she carries out all of her
responsibilities expected of her.

[142]     She does
not appear to have any plans presently to do anything different other than a
general wish to do so.

[143]     I consider
the plaintiff’s claim for $25,000 loss of income-earning opportunity to be a
moderate claim already taking into account the complication of her pre-existing
injuries and the effect that they will have on her future loss of
income-earning opportunity and I award that amount to the plaintiff for this
claim.

[144]     The
plaintiff will have her costs subject to any offers to settle.

“The Honourable Mr. Justice Truscott”