IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120726

Docket: M112976

Registry:
Vancouver

Between:

Asiyya Pisani

Plaintiff

And

Jill Pearce and
Bailey Pearce

Defendants

Subject
to Rule 15-1

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff Asiyya Pisani was injured in a head on collision on
December 29, 2009. Liability is admitted. The only issue is damages.
Ms. Pisani was 20 years old at the time of the accident and a full time university
student. She graduates from university this summer and will be working this
fall at Ernst & Young as a staff accountant. Ms. Pisani continues to
experience intermittent symptoms of pain arising from the accident. One of the
issues relates to the extent her symptoms may impact on her plans to becoming a
chartered accountant.

A.    THE
ACCIDENT

[2]            
The late evening of December 29, 2009 Ms. Pisani was driving her almost
brand new 2009 Mercedes C300 4Matic. Her sister Serena was in the passenger
seat. They had come from having dinner with their father in downtown Vancouver
and were returning home to their mother’s home in Coquitlam. Ms. Pisani entered
the intersection east bound on Como Lake Avenue at Porter Street in Coquitlam
when suddenly they were struck by a west bound sport utility vehicle.
Immediately before the head on collision, Ms. Pisani braced herself on the
steering wheel and slammed on the brakes. She felt her body jerk, the seat belt
constrain her, and the air bags deploy. The first thing she remembers after the
collision was lifting her head and seeing dust from the airbag. Ms. Pisani and
her sister managed to get out of the vehicle and walk to the sidewalk. Ms.
Pisani noticed that her lip was bleeding.

[3]            
Police and firefighters attended the accident scene, and a tow truck
separated the two vehicles. The damage was so extensive that both vehicles were
later written off.

[4]            
Ms. Pisani’s mother, Khadija Pisani, lives only about a minute away from
the accident scene. She testified that when she arrived at the accident scene
her two daughters were standing on the sidewalk. They were cold, shivering, in
shock, and shook up.

[5]            
About an hour after the accident, Ms. Pisani was at home when she felt
shocks travelling from her lower back up towards her neck. She had a headache
at the back of her head towards the base of her neck. She felt a lot worse the
next day with pain in her neck and shoulders. She felt very tender and stiff. The
pain in her neck was so severe that she could not turn her head. Her lower back
throbbed incessantly. She still had shocks travelling from her lower back to
the base of her neck.

B.    MEDICAL
TREATMENT

[6]            
The day after the accident, Ms. Pisani attended a walk-in clinic near
her home. The medical records indicate that she was sent for x-rays. She
attended the walk-in clinic again on January 22, 2010 and was prescribed
massage therapy and physiotherapy. She had never attended massage therapy or
physiotherapy before the accident.

[7]            
Ms. Pisani had her first physiotherapy session on February 3, 2010 when
she saw Tony Jan. Mr. Jan testified that on February 3, 2010 he observed
puffiness and spasticity in her right neck muscles, and muscle spasms down both
sides of her spine. The tension felt like a cable running down her back. He
referred her to Heather Vint, another physiotherapist, and also saw Ms. Pisani
on March 27, 2010.

[8]            
Ms. Vint saw Ms. Pisani on March 24, 27, 29, and 31, 2010. During most
of the visits, Ms. Vint applied various treatment modalities, including soft
tissue release and acupuncture. She also recommended various exercises or added
exercises for Ms. Pisani to do at home. Ms. Vint noted that Ms. Pisani had
muscle spasms in her right hip and along her spine. Her clinical impression was
that Ms. Pisani had impaired right hip and sacroiliac joint mechanics.

[9]            
Both Mr. Jan and Ms. Vint have an actual recall of Ms. Pisani despite
the number of patients they see. Mr. Jan testified that he remembered her
because her age and presentation stood out. It is rare for someone so young and
physically fit to have a cable like tension running down her back.

[10]        
When Mr. Jan last saw Ms. Pisani on February 11, 2011 the tension
pattern in her right neck area and the cable like tension running down her back
had improved slightly but still remained.

[11]        
Ms. Pisani also saw her family physician Dr. Shamin Jetha for symptoms
arising out of the accident, on April 12, April 29, and August 31, 2010.

[12]        
The defendants criticize Ms. Pisani for not seeing Dr. Jetha more frequently.
However, Ms. Pisani had her own personal reasons for not seeing her more
frequently. She felt Dr. Jetha always seemed too busy to want to see her, and
did not take her complaints seriously. As an example, Ms. Pisani testified that
she used to complain to Dr. Jetha that she had difficulty hearing, but Dr.
Jetha basically brushed her complaints aside. It was only when Ms. Pisani
attended an audiologist on her own and found she had hearing loss in the high
frequency range, did Dr. Jetha take her seriously. Ms. Pisani has a
hearing aid that she wears at times.

[13]        
Dr. Jetha did not testify, but her clinical records indicate that on
August 31, 2010 she recommended to Ms. Pisani that she continue with
her personal trainer, and go swimming. Ms. Pisani swam for about two months but
stopped. She found the intensive cardio workout from swimming caused her to
lose too much weight. Ms. Pisani is five feet two inches tall, and weighs
between 99 to 100 pounds.

[14]        
Ms. Pisani testified that after physiotherapy she was in a lot of pain
because the treatment focussed on aligning her hips. She stopped physiotherapy
and returned to her personal training with Ben Kerswell. She had stopped seeing
him after the accident. She found that working with him helped her more than physiotherapy,
and reduced her pain symptoms.

[15]        
Ms. Pisani also attended massage therapy on approximately seven
occasions. She testified that the sessions relieved her neck and shoulder pain
only a little because there was “a significant amount of guarding”. She also
found that massage therapy helped relieve her pain rather than treating her
symptoms. She stopped attending massage therapy about a year ago because she
found personal training was better at alleviating pain.

[16]        
Ms. Pisani testified that she did not return to her personal trainer
earlier than May 2010 because the doctor at the Care Point walk-in clinic told
her to take it easy and to have massage and physiotherapy treatments, which she
did.

[17]        
Ben Kerswell testified that he first began training Ms. Pisani on July
23, 2009. At that time she presented with a slight rounding of her shoulders
and slightly shortened hamstrings and hip flexors. He saw her regularly two or
three times a week until just before Christmas 2009. By then, she had
alleviated most of her flexibility issues and generally increased her overall
strength.

[18]        
Mr. Kerswell first saw Ms. Pisani after the accident on May 8, 2010. Her
strength levels were considerably lower than they were in December 2009. She
complained of pain in her lower back, in her shoulder into her trapezius muscle,
and in her neck. She could no longer squat parallel to the floor, do lunges,
any exercise involving her lower body, vertical push pull movements (an overhead
press or pull down movement), or anything involving a full range of motion,
without rounding her lumbar spine. Any type of hip extension movement, even
simply lying on the floor, caused her lower back pain. However, from May 8,
2010 to just before Christmas 2011 when he last saw her, her strength improved.
Her range of motion also improved but was still limited. Any hip extensions or
push pull movements continued to bring on a lot of persistent pain. Her major
pain complaints were fairly consistent and concerned her lower back, shoulder,
and neck.

[19]        
Ms. Pisani testified that her father paid for her personal training
sessions with Mr. Kerswell. They were $90 an hour or session. She testified
that when her father encountered financial difficulties, she had to cut back on
her spending, and she stopped seeing Mr. Kerswell because of the cost. Ms.
Pisani was not cross-examined on this aspect of her evidence.

C.    MS.
PISANI’S LIFE BEFORE THE ACCIDENT

[20]        
Ms. Pisani’s parents are separated. Her mother is an account manager
with a software company. Her father owns a company that is involved in
developing websites. Ms. Pisani’s older sister Serena attends medical school in
Dublin, Ireland. At the time of the accident Ms. Pisani was a full time student
in her third year in the business faculty at Simon Fraser University. She plans
to become a chartered accountant.

[21]        
At the time of the accident, Ms. Pisani – as her mother testified –
wanted to assert some independence. She had moved out of her mother’s home, and
lived on her own in an apartment near Brentwood Mall in Burnaby.

[22]        
Ms. Pisani’s best friend Alyse Amlani described her as very outgoing,
very motivated, athletic, and involved in many extracurricular activities. She
liked to be in charge. She was a leader. She had been the assistant captain of
their soccer team. She organized social activities for their friends, and
activities for their sports teams.

[23]        
Mrs. Pisani similarly described her daughter as very outgoing, always on
the go, enthusiastic, very energetic, and very active socially. She rarely
remained at home. She was always out for various activities or socializing with
her friends.

[24]        
Ms. Pisani did well in her studies. She achieved a 3.5 grade point average
in the fall 2009 semester just before the accident. In addition to studying and
attending classes, she spent 15 to 20 hours a week engaging in other activities.
She grew up dancing. She had taught dancing and had been a competitive dancer
in tap dance, hip hop, and ballet. She had many trophies and medals for her dancing.
She went dancing with friends or her boyfriend at least every couple of weeks. She
played soccer, dodge ball, attended yoga classes, went bicycling, kayaking,
hiking in the summer, and skiing in the winter. She saw her personal trainer
once or twice a week depending on her school schedule. She attended the mosque.
Apart from some hearing loss in the high frequency range, she was in good
physical health.

[25]        
Hussain Dhanni has been Ms. Pisani’s boyfriend for the last six years. He
testified that every year before the accident they hiked the first and second
peak of the Squamish Chief. Some summers they did the hike twice. They went
bicycling, dancing, and skiing. They often spent time hanging out and walking
around downtown Vancouver, spent time with friends, and generally did what
young couples do together.

D.    MS.
PISANI’S LIFE AFTER THE ACCIDENT

[26]        
Ms. Pisani’s injuries prevented her from carrying out her normal living
activities, including cleaning her apartment, shopping, and sleeping. She found
it difficult to do simple things like cleaning the bathtub or carrying grocery
bags because her back ached so much. She needed help with grocery shopping
because carrying a shopping bag aggravated her back. She could barely walk
because of what feels like a jam in her hips, particularly her right hip. She could
not manage the three or four minute walk from her apartment to Brentwood Mall.
Before the accident she used the stairs to get to and from her second floor
apartment. After the accident she had to use the elevator. Even now, she
testified that she has difficulty walking a couple of blocks without later
experiencing pain in her lower back.

[27]        
Mr. Dhanni testified that after the accident, Ms. Pisani needed help carrying
grocery bags. She needed help unloading the dishwasher, and replacing light
bulbs. Mrs. Pisani testified that before the accident, her daughter kept her
apartment very clean. After the accident she saw dishes on the counter, and the
bathtub not cleaned. She testified that she needed the help of her housekeeper
to keep her apartment clean.

[28]        
In May 2010 Ms. Pisani moved back home with her mother, following a home
invasion in her apartment.

[29]        
Ms. Pisani testified that after the accident it took her a lot longer to
study than before the accident, in order to keep up her grades. Pain made it
more difficult for her to concentrate and was very distracting. If her back was
throbbing, it took away from her ability to focus, and she became less
efficient at studying. She had to go over the same material over and over
again, which is not something she had to do before. She had to take time to
stretch in an effort to alleviate the pain, and that added to the time it took
for her to study.

[30]        
Both Mr. Dhanni and Mrs. Pisani observed that before the accident,
Ms. Pisani studied at a desk or dining room table. After the accident, she
studied on the floor so that she could stretch. At times she studied on the
couch; but she no longer sat to study.

[31]        
As a result of taking more time to study, Ms. Pisani had less time for her
extracurricular activities. However, when she tried to do any of her usual
extracurricular activities, she could not do them. She experienced too much
pain.

[32]        
Since the accident she has not gone hiking because her hip gives her
trouble and hurts. She and Mr. Dhanni went on a three day ski trip to Whistler
about a year after the accident. She skiied for only one of the three days. Skiing
put too much pressure on her hip and caused her a lot of pain. She has not
returned to skiing. She tried dancing at school and at a studio but the lower
back pain it causes is too much for her to bear. She last tried dancing a few
months ago, but it still caused throbbing back pain. She does not intend to
return to dancing until she can do so without so much pain. She has not
returned to playing soccer. She testified that given the fact she cannot walk
even a couple of blocks without experiencing back pain at night, she does not
think soccer is an option.

[33]        
She has tried going to the mosque. However, sitting on the floor causes
significant pain in her lower back and hip throughout the time she is sitting
and afterwards. Mr. Dhanni’s parents deliver the prayers and it is important
that she attend the mosque to support them. Mr. Dhanni attends the mosque every
Friday evening, and at least two or three other big events each month. Ms.
Pisani wants to attend, but since the accident has attended less than five
times. Before the accident, she attended at least once a month.

[34]        
On cross-examination, Ms. Pisani was asked why she did not sit on the
chairs at the mosque. She testified that she is a 23 year old who looks fit. There
are only a few chairs and they are reserved for the elderly. The elderly have to
get to the mosque at least one hour early in order to get a chair. Her
grandmother gets to the mosque two hours early so that she and her grandfather
can get a chair.

[35]        
Ms. Pisani never said so, but I am inclined to think that out of respect
for the elderly, she would not think of sitting on a chair that is reserved for
them. Ms. Pisani strikes me, from her evidence and her demeanour, as a person
who is respectful, and who does not want to draw attention to herself by doing
anything out of the ordinary.

[36]        
Ms. Amlani has also noticed a change in Ms. Pisani since the accident. She
testified that Ms. Pisani is a lot more reserved, and not as outgoing or social
as she used to be. They used to go out every couple of weeks, but since the
accident, they rarely go out. She now sees her approximately once every three
months. She seems busier with school, and seems to have less time for social
activities.

[37]        
Ms. Amlani testified that Ms. Pisani was not going to come to her
birthday at a club in April 2010 because she felt that she could not dress up
and wear high heels. However, she did attend, but did not wear high heels. She
only stayed for about an hour, and left early. She complained that her lower
back and hip hurt and she could not dance. Ms. Amlani testified that she had
her April 2011 birthday party at a club. Ms. Pisani attended for a couple
of hours and this time danced “a little bit”.

[38]        
Mr. Dhanni has seen a significant change in Ms. Pisani since the
accident. In February 2010 during the Olympics, they went downtown to walk
around some of the Olympic sites. However, Ms. Pisani was in pain from walking.
After just an hour, they cut the evening short and went home. On another
occasion during the Olympics, they went to see the Canada hockey game at
Moxie’s. Ms. Pisani expressed discomfort throughout the game. When Canada won,
everyone was on the street celebrating the victory. Ms. Pisani only wanted to
return home.

[39]        
In the spring of 2011 they purchased tickets to see one of their
favourite folk artists at the Waldorf Hotel. No sooner had they arrived, than
Ms. Pisani complained about back pain. They stayed for only a few songs, cut
the evening short, and went home.

[40]        
Mr. Dhanni testified that since the accident, Ms. Pisani no longer
engages in the physical activities they used to do because of pain. Before the
accident, she had no difficulty hiking up and down the Squamish Chief. She was
very physically fit. However, they had to cancel their annual hiking trip. They
no longer go bicycling or dancing. They now generally remain at home and indoors
most of the year, and watch television or play videos. Before the accident, if
they went out socially, Ms. Pisani always wore high heels. Now if they go
out, she no longer wears high heels because they cause her pain.

[41]        
Mr. Dhanni said that he can read Ms. Pisani’s body language when she is
uncomfortable with pain. When she is in pain, she becomes irritable. It is
apparent from Mr. Dhanni’s testimony that Ms. Pisani is often irritable.

[42]        
They no longer have the same relationship they had because they no
longer do the same things they did before. She is no longer very sociable or
outgoing. Their intimate relationship has been affected because of her pain
symptoms.

[43]        
Mrs. Pisani has observed big changes in her daughter since the accident.
She was unable to do many of the things she did before the accident and was
very frustrated. She had a hard time walking, complained that her hip hurt, and
often remarked that she was in pain. She expresses frustration during exam
times. She no longer goes out very often, and spends most of her time at home. When
her boyfriend or cousins come over, they do not go out like they did before.
Now they simply hang out at home. She avoids going to the mosque because it
hurts for her to sit down.

[44]        
However, Ms. Pisani claims that her condition has improved. Her bloody
lip healed within a couple of hours after the accident. The headaches lasted
only about a week after the accident. Of the pain in her lower back, hip, and
neck and shoulder, her hip pain was the most painful, but her lower back pain
is the most frequent.

[45]        
For six months to a year after the accident, because of neck pain, she
used a rolling backpack to and from classes instead of wearing a backpack. She
no longer uses the rolling back pack, but limits the number of books she
carries. She carries only the books she needs and stores other books in her
vehicle in between classes. She also removes any unnecessary papers from any
binders in order to limit, as best as she can, the weight she must carry.

[46]        
Her neck and shoulder pain are related. The pain is generally on the
right side of her neck and shoulder. Approximately two months after the
accident, her neck and shoulder pain were no longer constant but intermittent. Her
neck and shoulder have continued to improve until about a year ago. She still
experiences pain and flare ups when she studies, or works on a computer. Ms.
Pisani used to sit near the front of the class because of her hearing
disability. Since the accident, she sits near the back of the class so she can
get up and stretch during the lectures. She continues to take breaks, but not
as frequently. She now only needs a break every hour or two. She walks around,
and if she can, stretches against a door to stretch her neck and shoulder; and
lies on the floor to stretch her back.

[47]        
She has no neck pain if she engages in no activities at all. The longest
she has been without neck or shoulder pain is one or two weeks when she has not
been studying or working on a computer.

[48]        
By approximately two months after the accident Ms. Pisani’s lower back
pain was no longer constant, and improved with personal training. She is able
to remain seated for between one or two hours before experiencing lower back
pain. She could not wear high heel shoes for about a year and a half after the
accident without aggravating her back. She has returned to wearing heels but
they are only up to an inch and a half high. Even then, she experiences
throbbing back pain. The longest she has been pain free from lower back pain is
one or two days; and only if she stays home and does nothing except relax on
the couch. Generally every evening when she lies down she feels pain in her lower
back. The muscle spasms used to occur about five or six times a day. They now
occur perhaps every other day, and are not as distracting.

[49]        
Ms. Pisani’s hip pain has also continued to improve. She testified that
her right hip has been at the same level of recovery for six months. The
longest she has been without hip pain has been a week, but is unable to
identify what causes her hip to be pain free.

[50]        
From August 20 to September 10, 2010 Ms. Pisani paid to travel to Ghana
in order to work in a rural area as a volunteer teacher for a non-profit
organization. The flight to Ghana took 11 hours. She had an aisle seat but
found it difficult because there was no room for her to stretch. The return
flight was worse because she could only get a seat in the middle of a row. Her
hip and back pain was severe.

[51]        
She was able to work in Ghana because as she put it, all she had to do
was stand to teach, and sleep. Weekends were difficult because the group
travelled in small buses for as long as eight hours. There was no space for her
to move. She sat and had to bear throbbing back pain.

[52]        
One weekend she flew to Kenya to visit family. They decided to go
horseback riding. Ms. Pisani said that she tried riding for one hour, but she
experienced hip pain both during and after the ride.

[53]        
Ms. Pisani had shorter flights last year to Florida, Edmonton, Las
Vegas, and Phoenix. There was no evidence that the flights caused her problems.
That is likely because as she says, she is now able to sit for one to two hours
without having to get up to stretch. But walking is still very tiring for her.

E.    MS.
PISANI’S PLANS TO BECOME A CHARTERED ACCOUNTANT

[54]        
In the fall of 2010 Ms. Pisani successfully applied for an internship
position at Ernst & Young. She worked as an intern for four months in the
summer of 2011. She enjoyed her time at the firm but struggled with sitting and
using a computer and keyboard. Typing and sitting for long periods of time
caused pain in her neck and shoulders. The pain was so distracting that it was
difficult for her to focus, and added to the time it took to do her work. As an
intern she was required to work only 20 chargeable or billable hours each week.
She managed to meet the goal; but not without pain and additional time.

[55]        
However, she told no one at Ernst & Young about her injuries. She
testified that it was very competitive to obtain her job at the firm, promotions
are very competitive, and she does not want her injuries to reflect on her
ability to work, or to appear weaker than any of her peers.

[56]        
Likewise, Ms. Pisani was given accommodation while writing her
university exams. The time she took to stretch could be used to extend the time
she was allowed to write the exam. However, Ms. Pisani never took advantage of
the accommodation. She did not want any special attention during the exam.

[57]        
Ms. Pisani graduates this summer from university and is under contract
to return to Ernst & Young in September 2012 as a staff accountant. She is
concerned that it will take her longer to meet what she expects will be a
chargeable target of 40 to 50 hours a week. She is concerned with “eating
hours”; that is, working and not billing her hours. With the work and time
constraints, she is concerned about her ability to take time off to stretch in
order to deal with pain in her neck and shoulder. She is concerned with the
busy time of the year at tax time and year ends, when accountants routinely
work 15 hours a day during the week and on weekends. She is concerned with
whether her injuries will prevent her from working in the manner that is
expected of a person who wants to become and remain a successful chartered
accountant.

[58]        
There are two routes that Ms. Pisani can take to becoming a chartered
accountant. The first and preferred route is to complete a series of online
modules, while working full time for 30 months at an accounting firm, followed
by three uniform exams. The exams are four hours each, and difficult. The
second route is to complete the Masters of Professional Accounting Program
(“MPAcc”) at the University of Saskatchewan in Saskatoon, by attending university
full time at a tuition cost of $14,000, plus room and board.

[59]        
Ms. Pisani prefers the first route. The second route involves a six
month delay to becoming a chartered accountant, and the additional cost of
tuition and living in Saskatoon. However, last summer after working at the
firm, Ms. Pisani decided that she could not work full time and work on
the modules because of length of time it took her to do her to work because of
her increased pain symptoms. She applied for and decided to take the MPAcc
route.

F.    THE
REPORT AND EVIDENCE OF DR. H.A. ANTON, PHYSIATRIST

[60]        
Dr. H. A. Anton is a specialist in physical medicine and rehabilitation,
or physiatrist. He conducted an independent medical examination of Ms. Pisani
on November 29, 2011, at the request of her counsel. Ms. Pisani testified that
everything in Dr. Anton’s report of November 29, 2011 seems correct.

[61]        
The facts and assumptions in Dr. Anton’s report include the following:

5.         Ms.
Pisani was involved in a motor vehicle accident that occurred on December 29,
2009.

7.         Ms.
Pisani reported the subsequent onset of pain shooting from her lower back to
the top of her neck.

8.         Ms.
Pisani told me her most significant problem early after the accident was neck
pain, which she described as the worst pain she had experienced.

9.         Ms.
Pisani reported she later developed back pain and pain in the area of the hips,
the right worse than the left.

10.       A
handwritten progress note from Care Point Medical dated December 30, 2009
described pain in the left side of the neck and upper trapezius.

11.       Emergency
Records from Royal Columbian Hospital dated December 31, 2009, documented
complaints of midline neck pain radiating across both shoulders, lower back
pain, and headache.

12.       An
assessment form from Total Therapy dated March 24, 2010 showed pain over the
scapular area and upper thoracic area below the scapula bilaterally; pain in
the lumbar area bilaterally; pain in the right sacroiliac area; and pain over
the right groin.

13.       Ms.
Pisani’s treatments included massage therapy, physiotherapy and acupuncture.

14.       Ms.
Pisani reported she later began working with a personal trainer, which she felt
was the most helpful treatment.

15.       Ms.
Pisani reported significant improvement in her symptoms over time.

16.       Ms.
Pisani reported her biggest problem at the time of my assessment was
intermittent low back pain that mainly occurred after activities.

17.       Ms.
Pisani also described pain in the hips, the right side more frequently affected
than the left, and variously involving the iliac crest, upper gluteal area, and
groin.

18.       Ms.
Pisani no longer had neck pain but had intermittent pain in the right shoulder
girdle in the area of the upper scapula and trapezius.

19.       She reported
that pain was exacerbated by typing for long periods, studying, writing exams
and stress.

[62]        
Dr. Anton is of the opinion that Ms. Pisani suffered soft tissue
injuries to her neck, shoulder girdle, and lower back from the accident. Her
current back pain is probably in part mechanical. It is also probably in part
myofascial because he observed involuntary muscle contraction in her right
paraspinal muscles. This suggests that there is irritability within the muscles.
Myofascial pain is a regional soft tissue pain syndrome that arises from
muscles. It can develop after soft tissue injuries. The pain is perpetuated by
aggravating factors in daily life. The aggravating factors for Ms. Pisani
include sustained postures from sitting, activities that load the affected
muscles, such as carrying a backpack or other physical activities, and
sometimes psychological stressors; in this case the psychological stressors of
being a student.

[63]        
Dr. Anton encourages Ms. Pisani to continue exercising. He recommends
that she engage in an active rehabilitation program consisting of 12 to 24
sessions of “hands on” one on one exercise with a kinesiologist experienced
with rehabilitating soft tissue injuries. She needs exercises directed at core
stability and improving the muscles required for posture, so that she can
tolerate prolonged postures or activities better than she does now. If she suffers
flare ups, she will likely recover more quickly if she has strong postural
muscles and core stabilizers. Dr. Anton also recommends that an occupational
therapist review Ms. Pisani’s work station at home.

[64]        
In his report he states:

Ms. Pisani has improved and has the
potential to improve further with the recommended program. However, the longer
her pain persists, the less likely she is to become pain free. Considering she
still has pain nearly two years after the accident, it is most probable she
will have intermittent pain with some postures and activities indefinitely.

Ms. Pisani will probably not develop late
complications from her injuries such as post-traumatic arthritis. She will not
require surgery in future.

Ms. Pisani plans to become a chartered
accountant. That is overall a good fit for her physical capacity. However,
sustained postures and activities (such as prolonged use of a computer or
sitting at a desk) required in that profession could cause flare ups of pain.
It will be important that she have a work station and chair that are
ergonomically correct. It will also be important she have the opportunity to
take "microbreaks" (brief alterations in routine, activity or
position) to reduce her risk for symptoms.

I recommend there be provision for an
occupational therapy ergonomic assessment of Ms. Pisani’s work place once she
has completed her studies.

I also recommend provision for annual review
of Ms. Pisani’s exercise program by a kinesiologist to ensure it is still
appropriate.

If Ms. Pisani had to work in a physically
demanding job in future, she would be at risk for increased pain. That means
the range of jobs available to her in future will probably be reduced.

[Emphasis added.]

[65]        
At trial, Dr. Anton testified that by “indefinitely” he means “permanently”.
However, Dr. Anton has no diagnosis for the cause of the hip pain, and no
prognosis for its recovery. However, he testified that whatever the cause of
the hip pain, it arose from the accident. It is possible that the hip pain does
not arise from her hip joint, but is referred from her lower back or sacroiliac
joint. The history and physical findings are insufficient to confirm a diagnosis
of sacroiliac. The most definitive diagnostic test requires injections of a
local anaesthetic into the joint under x-ray; he does not recommend the test at
present. He states that the test might be reconsidered if she develops more
back or hip pain in the future.

[66]        
The defendants called no medical evidence.

G.   THE
ASSESSMENT OF DAMAGES

[67]        
Ms. Pisani seeks damages ranging from a total of approximately $334,000
to $369,000, and costs. The defendants argue that she is entitled to damages
totalling less than $28,000, and costs.

[68]        
Ms. Pisani argues that she is entitled to compensation as follows:

[69]        
The defendants say that she is only entitled to the following:

[70]        
Ms. Pisani impressed me as a young woman who is not only vivacious, but
driven to succeed. She is not a person who feels sorry for herself or tries to
attract attention to herself out of pity. Quite the opposite: she manages
whatever hurdles life throws in her way as best she can. She is doing what she
can to succeed in life; and she is doing what she can to recover from the
injuries she sustained in the accident. She most certainly is not a malingerer.
I found her to be very credible.

[71]        
In their written closing argument the defendants called Ms. Pisani’s
evidence into question several times. They stated that she should not be
believed, but without first having tested the veracity of the evidence by
specifically cross-examining her on the specific points. It offends the common
law rule in Browne v. Dunn (1893), 6 R. 67 (H.L.).
The defendants should not be allowed to rely on evidence they contend is
contradictory to her evidence without putting the evidence to her and allow her
an opportunity to explain or justify the apparent contradiction.

1.     NON-PECUNIARY
DAMAGES

[72]        
The non-exhaustive list of factors that may be considered in assessing
non-pecuniary damages is set out in Stapley v. Hejslet, 2006 BCCA
34, at para. 46:

(a)        age of the
plaintiff; 

(b)        nature of the
injury; 

(c)        severity and
duration of pain; 

(d)       
disability; 

(e)        emotional
suffering; and 

(f)         loss or
impairment of life; 

(g)        impairment of
family, marital and social relationships;

(h)        impairment of
physical and mental abilities;

(i)         loss of
lifestyle; and

(j)        
the plaintiff’s stoicism

[73]        
Ms. Pisani was injured in a significant head on collision. Her 2009
Mercedes C300 4Matic was written off. She sustained soft tissue injuries to her
shoulder, neck, and back. She will likely suffer flare ups from time to time
for the rest of her life. She now has problems with her hip that prevent her
from enjoying activities she used to enjoy. There is no diagnosis for the
problem with her hip, and there is little or no evidence that it will improve. Her
relationship with her boyfriend and her friends has been adversely affected.

[74]        
Her social life and her extracurricular activities have been adversely
affected. She has difficulty attending the mosque because sitting on the floor
causes her pain. She cannot dance, play soccer, hike, ride her bicycle, or ski.
Dancing has always played a big and important part of her life. Hopefully by
carrying out Dr. Anton’s recommendations, she will improve her postural muscles
and core stabilizers and may be able to resume most of her activities.

[75]        
Ms. Pisani relies on Mayenburg v. Lu, 2009 BCSC 1308 [Mayenburg],
Garcha v. Duenas, 2011 BCSC 365 [Garcha], and Crane
v. Lee, 2011 BCSC 898 [Crane].

[76]        
Mayenburg is a decision that has similarities to the facts in
this case. There, the plaintiff was a 20-year old student at the time of the
accident. She sustained soft tissue injuries to her neck and back that were
likely permanent. She also had myofascial and mechanical low back pain. Her
injuries had minimal impact on her lifestyle or her ability to enjoy her usual
activities. She had not returned to horseback riding. However soon after the
accident, she returned to hiking, biking, running (which had increased), and
dancing. She suffered back pain when hiking steep trails, and when dancing. She
was awarded $50,000 in general damages. Ms. Pisani argues that she is not able
to enjoy most of the activities she enjoyed before the accident, so her award
should be higher.

[77]        
In Garcha, the plaintiff was 48 years old at the time of the
accident. He sustained soft tissue injuries to his neck and back, and
tendonitis in his shoulder that would resolve with time. As a result of the
injuries, he was unable to garden, take long walks with his wife, or attend the
gym. He was also unable to attend the Temple regularly because sitting cross
legged on the floor caused him back pain. He was crankier after the accident,
and had difficulty with household chores. The Court awarded him $70,000 in
non-pecuniary damages.

[78]        
In Crane, six years after the accident, the plaintiff suffered
from daily low back pain that was unlikely to resolve. The soft tissue injuries
to her upper back and neck had resolved. She was an avid horseback rider. She
resumed riding, but not jumping, even though after a day of riding she suffered
pain. She could not resume wakeboarding and snowboarding, and suffered anxiety
when she was driving. As part of her work in sales, she was required to stand a
lot. She could stand in place for up to one hour before it became painful. Her
prime fitness activity before the accident was running. She was unable to run
and resorted to walking. By two years after the accident, she could walk to her
limit of 30 to 40 minutes. The defence argued that an award for non-pecuniary
damages between $2,000 to $6,000 was adequate. The Court awarded the plaintiff
$100,000.

[79]        
The defendants advanced a lengthy argument relating to Ms. Pisani’s
evidence that her injuries have not improved since around September 2011, and
that she did not see Dr. Jetha for further treatment options. The thrust of the
argument is that because she did not see Dr. Jetha for further treatment, and
stopped seeing her personal trainer in December 2011, her injuries “…were
less of a significant factor in her life than is apparent from the plaintiff’s
closing submissions, and that any plateau in the plaintiff’s recovery was not
apparent to her.”

[80]        
The defendants also argue that Ms. Pisani stopped seeing her personal
trainer, not because of financial circumstances, but because her injuries were
no longer significant. The defendants contend that Ms. Pisani comes from a
family of means and can afford the cost of personal training. They point to
evidence that her mother is a business woman, her father has his own business,
her sister is in medical school, Ms. Pisani drove a nearly new Mercedes at the
time of the accident that must have been worth $50,000, she paid to work for
three weeks in Africa in the summer of 2011, and so on and so forth. However,
Ms. Pisani was not cross-examined in relation to the reasons she gave for why
she stopped personal training.

[81]        
The defendants could have called Dr. Jetha to testify about what she
would have recommended if Ms. Pisani had seen her in the fall of 2011. Ms.
Pisani followed the advice of the physicians and physiotherapists. They told
her to exercise; and she did.  She cannot be faulted for not returning to see
Dr. Jetha. As Mr. Justice Smith stated in Edmondson v. Payer,
2011 BCSC 118, aff’d 2012 BCCA 114, at para. 37, “…a plaintiff whose
condition neither deteriorates or improves, is not obliged to constantly
bother  busy doctors to report that nothing has changed, particularly if the
plaintiff has no reason to expect the doctors will be able to offer any new or
different treatment.”

[82]        
The defendants rely on the following decisions as supporting an
appropriate award of non-pecuniary damages to Ms. Pisani in the range of
$19,000 to $30,000: Hoang v. Smith Industries Ltd. et al, 2009
BCSC 275 [Hoang], Davies v. Larabie et al, 2005 BCSC 1167
[Davies], Estable v. New, 2011 BCSC 1556 [Estable],
Wiest v. Angus et al, 2001 BCSC 98 [Wiest], Parihar
v. Allan and Yee, 2006 BCSC 1505 [Parihar], Manson v.
Kalar, 2011 BCSC 373 [Manson], and Kain v. Kirkman et al
and Pritchard v. Kirkman et al, 2006 BCSC 1770 [Kain].

[83]        
In Estable, the court awarded $30,000, and in both Parihar
and Manson the award for non-pecuniary damages was $25,000. In the
remaining cases, the awards ranged from $15,000 to $19,000. I do not intend to
distinguish each of those cases on their facts, only to say that the awards
sought were far less than what Ms. Pisani seeks here, and the plaintiff was
either able to return to all or most of his or her recreational activities, or
as in the case of Wiest, it is not entirely clear.

[84]        
In addition, in Estable much of the reason why the plaintiff was
unable to engage in her recreational activities was from an injury the court
found was unrelated to the accident.

[85]        
In Parihar, where the plaintiff was awarded $25,000 for
non-pecuniary damages, he had returned to weight lifting, although he could not
lift as much as he lifted before. He had also returned to playing ice hockey
and roller hockey, although not as competitively.

[86]        
In Manson, the plaintiff was also awarded $25,000 for
non-pecuniary damages. He suffered injuries to his lower back and neck from a
motor vehicle accident. He pursued very little treatment for his injuries, and
despite his doctor’s recommendations, did not undertake a core muscle
conditioning program, or all of his physiotherapy sessions. The court was also
not persuaded that the fact that the plaintiff was no longer skiing or golfing
was attributable to the accident.

[87]        
In this case, Dr. Anton suggests that Ms. Pisani’s neck, shoulder, and
lower back symptoms should hopefully improve with one on one training with a
qualified kinesiologist. Dr. Anton also suggests that if Ms. Pisani fails to
have a good response to the training, she may not be able to resume dancing. She
will probably suffer flare ups of her injuries for the rest of her life. She is
still only 23 years old. There is also no evidence that her hip problem will
resolve.

[88]        
I conclude that a fair and reasonable award of non-pecuniary damages is
$80,000.

2.     LOSS
OF EARNING CAPACITY

[89]        
Ms. Pisani seeks $125,000 to $150,000 for loss of earning capacity. The
parties are agreed on the relevant legal principles relating. If the plaintiff
establishes that as a result of her injuries there is a real and substantial
possibility that she will suffer an income loss, then she is entitled to
damages for loss of earning capacity. See Perren v. Lalari, 2010
BCCA 140, at para. 32; and Sobolik v. Waters, 2010 BCCA 523,
at para. 42.

[90]        
Dr. Anton in his report states that Ms. Pisani’s plan to become a
chartered accountant is overall a good fit for her physical capacity. However,
prolonged use of a computer or sitting at her desk could cause flare ups of
pain. He states that in addition to having an ergonomically correct work
station and chair, it will be important that “…she have the opportunity to
take ‘microbreaks” (brief alterations in routine, activity or position) to
reduce her risk for symptoms.”

[91]        
Ms. Pisani argues that she is in the midst of becoming a chartered
accountant in one of the larger international accounting firms. The work
demands long hours. Sitting for long hours and working at her computer will
cause her neck and back pain. The pain affects her ability to concentrate and
complete tasks. Salary increases and promotions are based on her ability to
meet or exceed time constraints. The workplace is competitive and mini-breaks
will be frowned upon or simply unavailable to her. She will be unable to modify
her work habits by working on the floor as she does at home. She will be unable
to take breaks as frequently, or at all, because she will be primarily working at
clients’ offices.

[92]        
However, I do not view Ms. Pisani’s future prospects that dimly. I
expect that with an ergonomic work station and chair, and a one on one exercise
program with a qualified kinesiologist, she will strengthen her postural and
core muscles so that she will be able to tolerate prolonged postures and
positions better than she does now. Strong postural and core muscles will
decrease her symptoms and she can recover better from any flare ups. While
there was no evidence that mini-breaks will be frowned on or unavailable to
her, common sense tells me that no accounting firm, or client of the firm will
object if she takes a mini-break or micro-break while she is working, or what
Dr. Anton refers to as “brief alterations” in routine, activity, or position.

[93]        
Ms. Pisani testified that she can sit during lectures but needs a break
every hour or two. She can drive for an hour and a half before her lower back
starts to hurt. I do not think any employer will complain if she takes periodic
breaks to stretch; or that taking mini-breaks will affect her income earning
ability.

[94]        
While Ms. Pisani argues that the facts in Mayenburg are distinguishable,
I find they are similar. Mr. Justice Myers stated in Mayenburg at paras.
54 to 58.

[54]      The real question, therefore, is whether Ms.
Mayenburg’s ability to earn income as an accountant or similar job is
impaired.  I do not think that is the case.

[55]      Ms. Dobbin’s finding with respect to sitting was
based on testing Ms. Mayenburg in a sitting position over the course of
two hours and 25 minutes in a non-supportive chair.  Furthermore, Ms.
Mayenburg was able to sit in a classroom for two hour lectures.

[56]      In the absence of evidence to the contrary I think
I can assume – whether as a matter of judicial notice or common sense – that an
accountant or similar professional is not tied to his or her seat for any fixed
duration.  Ms. Mayenburg will be free to get up and stretch as she
wishes.  Similarly, I do not think that a prospective accounting firm or
similar employer would balk at hiring Ms. Mayenburg if she told them that she
would have to get up and stretch periodically.

[57]      Just as Ms. Mayenburg was able to complete her
studies successfully, there is no reason to think that her injuries will impede
her ability to be a successful accountant.  She might suffer some
discomfort while performing her job, as she does when hiking and running, but that
is what the general damages are meant to compensate.

[58]      These comments apply
with greater force to prospective self-employment as an accountant or similar
professional.

[95]        
I am not satisfied that there is a real and substantial possibility that
she will suffer an income loss as a result of her injuries. I decline to make
an award to Ms. Pisani under this head of damages.

3.     DELAYED
ENTRY

[96]        
Ms. Pisani seeks damages of $90,000 as a result of the six month delay
in becoming qualified as a chartered accountant.

[97]        
The defendants argue that Ms. Pisani never advanced a claim for delayed
entry in her pleadings, and at no time prior to the trial were they put on
notice that she was advancing a claim for delayed entry. However the defendants
raised no objection to the admissibility of the expert reports of Douglas C.
Hildebrand dated January 26, 2012 and February 2, 2012 relating to the
assessment of Ms. Pisani’s claim for delayed entry. In response to Mr.
Hildebrand’s expert opinion, the defendants relied on the report dated February
13, 2012 by Darren Benning. Both experts testified at trial and were
cross-examined. It is now too late for the defendants to complain that they
failed to have proper notice.

[98]        
The defendants also argue that there are many reasons unrelated to
Ms. Pisani’s injuries as to why she would presumably want to attend the
MPAcc program. They include an opportunity to travel (presumably to Saskatoon)
and to gain a Masters degree. However again, none of those matters were put to
Ms. Pisani on cross-examination and I give no weight to the argument. I
find her decision to take the MPAcc route a reasonable one given her
circumstances and symptoms at the time.

[99]        
There is no disagreement that if Ms. Pisani took the first route, she
would expect to receive her chartered accountant designation by the end of
February 2011. With taking the second or MPAcc route, she will be delayed by
six months. There is also no disagreement that there is an income loss
associated with the delay, or the methodology in estimating the loss. There is
also no disagreement that Ernst & Young is one of the “big four” accounting
firms in Vancouver and there is no available or published data on the earnings
of the accountants working at the firm. The only disagreement relates to the
data used for determining the average and the median incomes.

[100]     Mr.
Hildebrand, an economic consultant, estimated the present value of Ms. Pisani’s
income loss as a result of the six month delay. He used data from the most
recent 2006 Statistics Canada data, and a salary survey completed by the
Canadian Institute of Chartered Accountants (“CICA”) in 2011. Using the 2006
Census data earnings results in figures that are lower because those who work
in accounting related fields include not only designated chartered accountants,
but also certified management accountants, certified general accountants, and
unaccredited accountants or bookkeepers. Mr. Hildebrand prefers the data from
the CICA voluntary salary survey as being more reliable and states that the
earnings data in the 2012 Salary Guide (Accountants and Financing) by Robert
Half is generally consistent with the CICA survey.

[101]     The loss estimates
using the Census data range from $7,000 to $22,000, while the loss estimates
using the CICA data is $55,000 to $64,000. Mr. Hildebrand then applied several
upward adjustments, and concludes that the present value loss or impact of a
six month delay is $59,906 “in trial year dollars”, excluding things such as
fringe benefits.

[102]     Mr.
Benning’s primary criticism relates to what he considers an overstatement of
the calculations with the use of the CICA data. Unlike the Census data, the
CICA data is not random and only 29 percent of the chartered accountants who
received the survey bothered to respond. It is therefore biased. It is not
possible to know whether the 71 percent of the chartered accountants who did
not respond to the survey have compensation levels that are similar to those
who responded. He is concerned that the survey did not distinguish between male
and female earnings, because males generally earn more than females. Other
concerns are that Mr. Hildebrand used the $180,345 average earnings from
the CICA survey, rather than the median earnings of $123,000; used an excessive
contingency for non-wage benefits; extended Ms. Pisani’s participation rate in
the work force until age 70 when the average retirement age for females based
on the Census data is 62; and included an upward adjustment to account for
working in Vancouver. However, Mr. Benning did not provide or calculate an
estimate of what he considers to be a reasonable estimate of the loss caused by
the six month delayed entry. However, all of his concerns are reasonable
concerns that should be taken into account.

[103]     Ms. Pisani
argues that she has a strong attachment to the work force. But other than
working during the summer for her father, and her summer internship, these are
very early days in her working life. I have no way of knowing — and neither
does she — whether she will take time out of the work force to have or to
raise children. It is very difficult at this early stage of her life, when she
has just graduated from university, whether she will work past the age of 65.
The calculations relied on by her as supporting the damages she seeks is the
perfect world where no or few contingencies are taken into account, and she
takes no time out of the work force until past the normal retirement age. It
may be that she does not remain at one of the “big four” accounting firms for
the length of her working life. While I recognize that Ms. Pisani is a very
energetic and driven individual, any award must not only be fair to her, but
fair to the defendants.

[104]     Doing the
best I can, I think an award of $35,000 is reasonable.

4.     LOSS
OF HOUSEKEEPING CAPACITY

[105]     Ms. Pisani
seeks $600 for past loss of housekeeping capacity, and $40,000 for future loss
of housekeeping capacity. At present Ms. Pisani is not required to do any
housework because her mother employs a live-in housekeeper. Apart from grocery
shopping with her mother, there is no evidence that Ms. Pisani has attempted
any household chores since she moved back home in May 2010. She has made
significant improvement in her symptoms since then.

[106]     Ms. Pisani
testified that when she moves out in about five years, she believes that she
will have difficulty with grocery shopping, vacuuming, and cleaning activities
like scrubbing the bathtub or toilet. She estimates that when she moves out on
her own, she will need housekeeping assistance once or twice a week for two to
three hours at $10 an hour, until age 65.

[107]     However
again, I do not take such a dim view of what she may be able to do in the
future. Dr. Anton did not state in his report or testify that Ms. Pisani will
have difficulty doing housework in the future. He stated that she “…will probably
be at risk for flare ups of pain with heavy cleaning.” He was never asked what
he meant by heavy cleaning. However, I do not think that cleaning the bathtub
or toilet, or even vacuuming can be said to be heavy cleaning. I do not think
she will need help with heavy cleaning four to six hours a week.

[108]     In Poirier
v. Aubrey, 2010 BCCA 266, the Court of Appeal awarded the plaintiff
$15,000 for loss of housekeeping capacity. She was 38 years old at the time of
trial and therefore older than Ms. Pisani. However, she was more seriously
injured than Ms. Pisani. Her husband had to do all of the cleaning in the
house, and her daughter had to come and do the laundry. After she separated
from her husband and moved into a small apartment, she still was unable to do simple
things like regularly washing dishes, clean floors, shop for food, and was
limited to making simple meals or eating prepared meals.

[109]     I
seriously doubt that Ms. Pisani will be that limited when she moves five years from
now into her own place.

[110]     Ms. Pisani
must not be overcompensated under this head of damage. I conclude an award of
$5,000 for loss of housekeeping capacity is appropriate.

5.     COST
OF FUTURE CARE

[111]     Dr. Anton
recommends that Ms. Pisani have 12 to 24 private sessions with a kinesiologist,
and estimates a cost of $50 to $100 a session and an annual assessment at $100
a session for each year thereafter. Ms. Pisani claims $2,400 for these costs. In
addition she claims an additional sum of $600 for the workplace assessment, for
a total cost of future care award in the sum of $3,000.

[112]     The
defendants agree that Dr. Anton’s recommendations for future care should be
adopted, and consent to the workplace assessment cost of $600. However, the
defendants say that it would be more appropriate to take an average of 18
sessions, and the average cost of $75 a session. Dr. Anton was not cross-examined
on the number of sessions or on the cost. I see no reason why the figure should
be reduced to the average when it is clear that that Ms. Pisani needs a
supervised exercise program. She used to attend personal training twice a week
on a regular basis. I do not see 24 sessions as unreasonable, taking into
account that the purpose of the sessions are to strengthen Ms. Pisani so that
she is able to better tolerate her ability to sit and work at a computer, and
be able to engage in the activities she used to enjoy.

[113]     I award
her the sum of $3,000 for cost of future care.

6.     SPECIAL
DAMAGES

[114]     Special
damages are agreed at $997.95

CONCLUSION

[115]     The
plaintiff is awarded the following damages totalling:

[116]    
The plaintiff is also entitled to her taxable costs and disbursements.

“Loo J.”