IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121018

Docket: 45399

Registry:
Vernon

Between:

Laura Travelbea

Plaintiff

And

Jason Douglas
Henrie

Defendant

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The plaintiff, Laura Travelbea, brings this action to recover damages
for injuries she sustained in a motor vehicle accident in Vernon on September
15, 2008. Liability is admitted; at issue is the assessment of damages.

[2]            
On the day of the accident Ms. Travelbea was doing errands after
work. She was driving her 2000 Pathfinder. She came to a stop on 30th Avenue
when the vehicle in front of her stopped to allow a pedestrian to cross the
street. Ms. Travelbea saw the defendant approaching and realized he might
hit her so she braced for the impact. The defendant, who was driving a 1995
Chevrolet three-quarter ton pickup truck, struck her from behind. The
defendant’s insurer estimated that Ms. Travelbea’s vehicle would cost
$2,199 to repair. Both vehicles were operable after the collision, and once the
drivers had exchanged particulars they proceeded on their way. Neither the
police nor medical personnel were called to the scene.

[3]            
Ms. Travelbea did not seek medical attention the day of the
accident, although she began to feel poorly that evening. The next day she
awoke with a headache and pain in her neck and upper and lower back. While the
low back pain subsided fairly quickly the pain in her upper back and neck has
not. She continues to experience pain in those areas today, some four years
after the accident.

[4]            
Ms. Travelbea is 53 years old. She works as cashier at a health
food store in Vernon. She has an adult daughter and an adult stepdaughter from
her first marriage. In the mid 1980s she completed a course which qualified her
to teach aerobics. Her interest in physical exercise led her to take up
running. In 1994 she completed her first marathon. In 1997 she met her husband,
Brian Travelbea, while participating in a relay running race. They married in
2002. Mr. Travelbea is 62 years old and retired from a career with the
telephone company. He is an avid endurance athlete and coach. He began his
athletic endeavours as a road cyclist and competed in that sport on the
national level. He then took up long distance running. His participation in
these sports evolved into an interest in triathlon racing. In 1982 completed
his first Ironman race in Hawaii. He continues to compete in triathlon races
and coach others for both Olympic distance and ironman events.

The Positions of the Parties

[5]            
The plaintiff seeks general or non-pecuniary damages of $100,000. She
argues that she is entitled to compensation for a loss of future income earning
capacity and claims $40,000 in that regard. She takes the position that her
injuries will give rise to a need for future care for which she claims $65,310.
Next she seeks an award for loss of housekeeping capacity of $10,000. Finally,
she seeks special damages of $17,020.

[6]            
In terms of general damages, the plaintiff argues that when account is
taken of the factors set out in Stapley v. Hejslet, 2006 BCCA 34, an
award that is greater than awards given to plaintiffs with similar injuries is
warranted. That is so, it is argued, because to a significant degree
Ms. Travelbea’s sense of self worth, her social circle and, to a degree,
her marriage are bound up with endurance athletic endeavours. She takes the
position that because of her injuries she can no longer participate in those
activities, and as a result she has suffered a significant loss.

[7]            
The defendant argues that general damages of $35,000 are appropriate. He
takes the position that no award for future care or loss of future income
earning capacity is warranted. As to special damages the defendant argues that
$1,500 is all that is properly recoverable. Moreover, the defendant argues the
plaintiff has failed to properly mitigate her losses.

[8]            
The defendant’s position rests primarily on two contentions. First, he
argues that the plaintiff is only entitled to be put in the position she was in
before the accident, not a better position. She had been experiencing neck and
upper back pain for several years prior to 2008. Second, the defendant contends
that the plaintiff’s injuries are not as serious as she maintains they are. He
argues that her evidence is not reliable and in some instances not credible.
When account is taken of these two factors and when regard is taken of the
objective evidence of her level of functioning, a more modest award than that
suggested by her is appropriate.

Discussion

a)       General Damages

[9]            
 The measure and the purpose of an award of damages in tort was
succinctly set out by Major J. in Athey v. Leonati, [1996] 3 S.C.R. 458.
At paragraph 32 he wrote:

… The essential purpose and
most basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been in absent the defendant’s negligence (the
"original position"). However, the plaintiff is not to be placed in a
position better than his or her original one. It is therefore necessary not
only to determine the plaintiff’s position after the tort but also to assess
what the "original position" would have been. It is the difference
between these positions, the "original position" and the
"injured position", which is the plaintiff’s loss. …

[10]        
The first issue is to determine Ms. Travelbea’s “original
position”. She argues she was a healthy and vigorous athlete who regularly
competed and trained for endurance events. While she had aches and pains, they
were not due to any particular underlying medical issue but rather were a
consequence of her heavy training regime. Implicit in her position is that had
she stopped or significantly reduced the amount of exercise she was doing prior
the accident, she would not have experienced any limitation on her function or
any pain associated with the ordinary activities of daily living.

[11]        
This case depends to a considerable degree on the plaintiff’s
reliability and credibility. As with many claims based on soft tissue injuries,
there is no objective medical evidence; rather there are the subjective
complaints of the plaintiff and the evidence of those who have observed her
going about her daily tasks.

[12]        
There are a number of aspects of the plaintiff’s evidence which the
defendant says provide a basis for questioning her credibility and reliability.
I will deal with the most significant of them.

[13]        
The plaintiff was examined for discovery on July 21, 2011. She was asked
whether, in the two years prior to the motor vehicle accident, she had any neck
pain. She was asked if she received any treatment for neck pain during those
two years. She was asked if she had any upper back pain during that same
period. To each of these questions she answered, “I don’t recall”. At trial she
agreed that she had received approximately 90 physiotherapy or massage therapy
treatments in the three years prior to the accident, and that most of those
treatments related to her upper back and shoulders. In January 2008, she
completed an intake questionnaire when she moved to a different massage
therapist. In response to a question about which area she was interested in
receiving treatment for she wrote “back, left shoulder, neck”. She wrote that
those areas had been bothering her for five or more years off and on.

[14]        
The plaintiff retained Dr. Andrew Travlos, a specialist in
rehabilitation and physical medicine, to assess her injuries. She saw him on
April 27, 2011. He was given the clinical records of Ms. Travelbea’s
physiotherapists for the period beginning about a month before the accident and
ending just before he saw her. He was not given the records for the several
years before the accident. He was, however, provided with her family doctor’s
clinical records and noted two entries, one in 2001 and the other in 1999,
regarding shoulder complaints. As to her medical history prior to the accident,
Dr. Travlos wrote:

…She described aches and pains
from various exercises over time but no specific areas of concern. She denied
any previous neck or upper body complaints …

[15]        
Ms. Travelbea testified that her pre-accident complaints were
different than the pain and discomfort that she has experienced since the
accident. She was thinking of the latter when answering Dr. Travlos’s
questions. Whatever the nature of those complaints, it is clear that with the
exception of the two matters that Dr. Travlos noted, they did not rise to
a level that Ms. Travelbea thought it necessary or prudent to seek medical
attention.

[16]        
There is no doubt that Ms. Travelbea had previous “complaints” in
the ordinary sense of that word, and that those complaints related to her neck
and upper back. Moreover, ordinarily I might conclude that a witness who
claimed not to recall whether he or she had received treatment for complaints
in the relatively recent past was not being truthful. The inclination to reach
that conclusion would be more pronounced were they as extensive as those
Ms. Travelbea received. I accept however that from Ms. Travelbea’s
perspective, the two things (the pain she experienced as a result of the
accident and the aches and pains she had from endurance training) were quite
different. I accept that she had in mind the former when she was asked about
prior treatment. Some support for that can be found in her description to
Dr. Travlos about her aches and pains from exercising.

[17]        
Aside from the foregoing Ms. Travelbea is not a particularly
reliable historian. She said on examination for discovery that prior to the
accident she did about six to eight sprint or Olympic distance triathlons a
year. She said that was not a firm number but an estimate. According to the
agreed statement of facts she did two sprint triathlons in 2006; one sprint
triathlon and one half-ironman triathlon in 2007; and one sprint triathlon in
2008.

[18]        
At trial she was asked how many hours a week she worked in 2008, the
year of the accident. She said that she worked between 16 and 20 hours a week
as a receptionist at a physiotherapy clinic. She said she reported all of her
income. Her 2008 income tax return shows employment income of $4,676 which
equates to about eight hours a week.

[19]        
She testified about her race results before and after the accident. She
said that her abilities decreased. The actual results of her races do not
support that conclusion. She came 112th out of 126 competitors in a sprint
triathlon in Summerland in 2006. Her time was 1:38. A year later she finished
130th in a field of 175 competitors in a similar event in Oliver. Her time was
1:32. She raced in the same event the next year, just three months before the
accident. She finished with a time of 1:45 placing 158th out of 176 racers. In
March 2009 she raced in a UBC sprint triathlon. She finished 230th in a field
of 335. Her time was 1:39. In 2009 she completed an Olympic distance triathlon,
finishing 241 in a field of 256.

[20]        
Her recollection of the course of her recovery is also suspect. She saw
Dr. Duncan Laidlow at the request of the defendant in April 2010. She told
him that her condition had improved somewhat since the accident. He wrote in
his April 14, 2010 report:

Over the course of time she has
improved, in that [the plaintiff] initially had steady pain in the neck and mid
back area and now the neck pain and upper back pain comes and goes.

She told Dr. Travlos a year
later that in the year before she saw him she thought her condition had further
improved. He wrote:

…The records do show improvement
over time and she is also aware that she is better than she was last year at
this time.

Yet on examination for discovery in July 2011, she said that
since she had seen Dr. Laidlow her condition had deteriorated.

[21]        
I do not think Ms. Travelbea was intentionally trying to mislead on
these or others matters. The accounts she gave to both Dr. Travlos and
Dr. Laidlow and to others are generally consistent with the account she
gave at trial. Both Dr. Travlos and Dr. Laidlow described her as a
straight forward person. She presented that way in giving her evidence. I think
the explanation for these aspects of her evidence lies elsewhere. A functional
capacity evaluation was done by Sheila Branscombe. Part of that evaluation
involved the administration of tests to attempt to gauge how a person’s self
report of their abilities compares with their actual abilities as demonstrated
by performance. Ms. Travelbea was found to under rate her abilities on one
test and she displayed a somewhat heightened sense of her disabilities on
another. I think that Ms. Travelbea has a somewhat exaggerated view of her
pre-accident abilities and that she perceives her post-accident limitations to
be greater than they actually are. She thought she worked more than she actually
did; she thought she raced more than she actually did and she thought there was
a greater disparity in her race performance than there actually is. I will take
these aspects of the plaintiff’s evidence into consideration when assessing
damages.

[22]        
Returning to the question of her pre-accident condition, notwithstanding
her frequent attendances for physiotherapy and massage therapy in the two or
three years prior to the accident, I am satisfied the discomfort she was
seeking relief for was due to the physical training she was doing. She
testified that her shoulder problems were due to the mechanics of her freestyle
swim stroke. The records show that on many of her physiotherapy or massage
therapy visits the subject of her training regime was discussed, including her
swimming technique. She said that her husband, who also monitored her training,
encouraged her to seek treatment for aches and pains before they became
problematic. She said that she followed that advice and that was why she went
to physiotherapy and massage therapy so frequently. I accept her evidence in
that regard.

[23]        
I am satisfied that Ms. Travelbea had neck and upper back
discomfort prior to the accident but it was due to her exercise regime. The
frequency and intensity of that pain increased with heavy exercise, but even
then it did not prevent her from exercising nor did it impair the enjoyment and
satisfaction she derived from exercising.

[24]        
As to her post-accident condition, I am satisfied that
Ms. Travelbea suffered a mild to moderate soft tissue injury to her neck
and upper back in the collision. She did not have immediate pain following the
collision, but later that evening she began to experience discomfort and over
the next several days the pain became worse. She was working in a
physiotherapist office at the time and initially sought treatment from one of
the physiotherapists in the office. She first saw her doctor a few days later.
She saw him on two further occasions in 2008 and six more times in 2009. She
saw him three times in 2010. On each occasion he referred her for physiotherapy
and massage therapy. In 2010 he also referred her for acupuncture. He did not
prescribe any medication.

[25]        
Ms. Travelbea saw Dr. Laidlow at the request of the
defendant’s insurer in April 2010. She told him that she was receiving
physiotherapy treatments twice a week and that she had also received some
acupuncture treatments. She told him the treatments resulted in “slight
improvement”. She said she had received some stretching instruction from
physiotherapists and that too provided her with some relief. On examination
Dr. Laidlow found her to be tender in the shoulder area. She had a reduced
range of motion in her neck and upper shoulder. He concluded her pain was
myofascial in origin and recommended a targeted stretching program under the
supervision of a personal trainer. He was of the view that further acupuncture
or physiotherapy was not warranted. He thought she would continue to improve if
she were to embark on the stretching program he suggested.

[26]        
Dr. Travlos saw her a year later. He found “no overt pain
behaviours”. He thought her pain was mechanical in origin, but did not rule out
myofascial pain. He suggested three different medications which he thought
might at least improve her level of functioning and reduce her pain. Although
he though it possible, if not likely, that she would experience some further
improvement, he thought she would probably not fully recover and would always
have some residual symptomatology.

[27]        
Ms. Travelbea testified that aside from the one dose of
nortriptyline, which was one of the medications recommended by
Dr. Travlos, she has only taken over-the-counter medications. She takes
both Advil and Aleve. She said that in spite of the physiotherapy and other
treatments she has taken, and in spite of the medications she takes, her pain
never goes away.

[28]        
As to the effect of her injuries on her recreational activities, she
initially continued to train and participate in endurance events such as
triathlons, half marathons and duathlons but she did so at a price. That price
was a significant amount of pain. The discomfort she experienced caused her to
reduce and then almost eliminate her training. She last raced in June 2009.
Most of the events Ms. Travelbea participates in include a road bicycling
component. She finds the posture necessary for road cycling particularly
difficult. Her neck becomes very painful and that gives rise to tingling in her
hands and arms.

[29]        
Ms. Travelbea is a physically strong person. She enjoyed working
alongside her husband as they completed renovations to a summer cabin they have
on Okanagan Lake. She mixed cement, carried heavy lumber, did the mudding and
taping of the drywall and generally did all the tasks that her husband did. As
he put it, they were very much a team. The cabin renovation was in process
during the summer of 2008. Following the accident Ms. Travelbea is much
more limited in what she can do. Her husband said that he had her stain some
boards. He arranged it so she could do it in a comfortable posture and yet she
was only able to work for 15 minutes before she had to rest.

[30]        
The Travelbeas were a team when it came to housework as well. They
divided the tasks more or less equally. Ms. Travelbea now finds that
washing the floors and vacuuming painful to the point where she is unable to do
them without paying a significant price.

[31]        
Finally, Ms. Travelbea has gained weight. The evidence about her
weight is not consistent. She said that she weighs now what she weighed on the
day of the accident (about 160 pounds). Her husband said he thought that she
weighed about 125 pounds in September 2008. In conjunction with his supervision
of her training he kept track of her weight. While I cannot conclude what she
weighed in September 2008 I am satisfied she has gained weight. First, I accept
Mr. Travelbea’s evidence that she was monitoring her own weight and was
discouraged as it increased. He said he took the scale out of the bathroom to
prevent her from doing this. He also said that she had become so self conscious
about her weight that it had a negative effect on their intimacy. It also seems
to me that weight gain is a common concomitant of a transition from a life that
involved vigorous and frequent exercise to one that is primarily sedentary.

[32]        
The consequences of Ms. Travelbea’s injuries are confirmed by the
collateral witnesses, all of whom I found credible and reliable. Charlene Fair
is very active in a Vernon running group. She met the Travelbeas when they
joined the group in 2007. She said that initially they were both very active.
Ms. Fair took up road biking in part as a result of her association with
the Travelbeas. While running is the basis or focus of the club, there is a
social aspect to it as well. They have pot luck gatherings and many of them
also ride together. As a group they volunteer at events such as the Run for the
Cure. Ms. Fair said that following the motor vehicle accident
Ms. Travelbea’s participation in the group declined markedly. She stopped
running with them and stopped both road riding and going to the indoor spinning
classes that Mr. Travelbea led during the winter. She said that
Ms. Travelbea’s personality has changed since the accident. She seems much
less happy; in fact she often seems angry, which was not part of her nature
before the accident. Ms. Fair explained the role of exercise in her life.
She said that while none of them, with the exception of Mr. Travelbea, are
high level athletes, training and racing are a big part of their lives. It is
something they did both for fitness and personal satisfaction and it was
something around which they organized much of their social life. I think that
accurately describes the role of exercise in Ms. Travelbea’s life.

[33]        
Jamie Sockman is a triathlete and a marathon runner. She met
Ms. Travelbea when Ms. Travelbea began training with the master’s
swim club in Vernon. They became friends. She said the plaintiff was not one to
complain. Before the accident she found her to be a very positive and
supportive person, always keen to train. In fact they often swam, cycled and
ran together. After the accident she said the plaintiff tried spinning classes
but soon stopped. So too with swimming.

[34]        
Mr. Travelbea is 62 years old. He is retired and now devotes his
energy to participating in triathlons and coaching triathletes. He is a
nationally certified triathlete coach. He said that the plaintiff has changed
emotionally since the accident. Prior to the accident she was outgoing,
spontaneous and always interested in new challenges. In the years since, she
has become withdrawn and irritable. She has lost much of her self confidence.
As noted, he said she has gained weight and is self conscious about that. He
said their relationship has suffered as a result of these changes.

[35]        
Mr. Travelbea echoed the observations of Ms. Fair and Ms. Sockman
as to Ms. Travelbea’s training. He said that her social circle has
diminished as a result of her inability to participate in training and racing.
He said she did reasonably well in the UBC sprint triathlon in 2009 but she did
poorly in the half marathon event in April of that year. She was only just
ahead of some participants who walked most of the course. He said he supported
her racing in 2009. He thought it was important for her psychologically,
although he had reservations about whether she was properly trained for the
events she entered. In the Olympic distance triathlon she completed in June
2009 she was among the last finishers. They were taking down the course when
she crossed the finish line and she found that profoundly disappointing and embarrassing.

[36]        
From the foregoing I conclude the following. The plaintiff sustained a
mild to moderate soft tissue injury to her neck and upper back. Now, some four
years after the accident, it remains painful and limiting. I think it more
likely than not that if she commits to the focused stretching that
Dr. Laidlow recommended she will increase her level of functioning. I
think it more likely than not that if she takes the course of medication,
whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will
experience an even greater improvement in her functionality. She will, however,
be left with residual pain and limitations. I think it unlikely she will ever
be able to ride a road bicycle for any appreciable period of time. As a result
both that training and triathlon racing will remain beyond her ability. She may
be able to ride a bicycle that can be operated in a more upright posture. I
think it more likely than not that she will be able to swim and run, albeit not
at the level or for the distance she did previously. I think it also likely
that with this improvement in function she will recover some of her self
confidence and some of the depression which seems to have settled over her will
lift.

[37]        
Ms. Travelbea’s injuries have affected her much more significantly
than they would someone whose life did not revolve around the kinds of athletic
endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and
did it four, five or six days a week. She enjoyed training as much or more than
competing. It was in the midst of athletic pursuits that she met her husband.
Training was a significant part of their relationship. They trained together
and often raced together. It was the focus of much of their social activity.
Her ability to train and the level of fitness she was able to sustain as a
result was an important aspect of her sense of self worth.

[38]        
There is a further aspect to the plaintiff’s injuries that is relevant
to the assessment of general damages. In 2005 Mr. Travelbea took a
transfer with his job and Ms. Travelbea quit her job so they could move to
Vernon. They moved because Ms. Travelbea wanted to care for her ailing
parents. Her father died before the motor vehicle accident and her mother died
in the spring of 2012. Ms. Travelbea’s mother suffered from Parkinson’s
disease and she had a postural condition that resulted in her being unable to
stand upright. When she stood she was bent ninety degrees at the waist. By the
time of the motor vehicle accident she was in an assisted-living facility but
Ms. Travelbea continued to take her to her various medical and other
appointments and provided significant personal care. Following the accident she
was unable to do these things. She had difficulty loading and unloading her
mother’s wheelchair, and found the posture she needed to adopt to accommodate
her mother’s postural limitations beyond her. I will deal with the claim for
the cost of the replacement of these services when dealing with special
damages, but for purposes of non-pecuniary damages, I am satisfied that the
loss of the ability to do these things for her mother was felt emotionally by
the plaintiff and is a factor to take into account under this head.

[39]        
In terms of general damages the plaintiff points to Kasidoulis v.
Russo, 2010 BCSC 978, Grigor v. Johal, 2008 BCSC 1823, Neumann v.
Eskoy, 2010 BCSC 1275, Kardum v. Asadi-Moghadam, 2011 BCSC 1566, Pelkinen
v. Unrau, 2008 BCSC 375, Johnstone v. Canada (Attorney General),
2006 BCSC 1867, Smith v. Williams, 2011 BCSC 1806, and Vagramov v.
Zipursky, 2010 BCSC 414 in support of the position that an award of
$100,000 is appropriate.

[40]        
The defendant argues that cases such as Filimek v. Braaten, 2009
BCSC 866, Olianka v. Spagnol, 2011 BCSC 1013, Manson v. Kalar,
2011 BCSC 373, Ryan v. Klakowich, 2011 BCSC 835, Olynyk v. Turner,
2012 BCSC 1138 and Wilkinson v. Whitlock, 2011 BCSC 1781 are similar to
Ms. Travelbea’s situation and support a much lower award.

[41]        
The plaintiff in Kasidoulis was a 38-year-old school teacher. She
was pregnant at the time of the accident. Her injuries were significantly
disabling. She could not work nor care for her children following the accident.
Her pain was pronounced and remained so at the time of the trial.
Dr. Travlos was of the opinion that she would never be able to work full
time. Her pain was chronic and left her exhausted. It gave rise to a
significant change in her personality. She was awarded $90,000 in non-pecuniary
damages.

[42]        
In Grigor the 49-year-old plaintiff was awarded $90,000 in
general damages. He suffered nerve root impingement in his low back and was in
chronic pain. He was off work for two months following the accident and then
only returned part time, at least initially. This pain limited his ability to
work, gave rise to a profound change in his disposition, and interfered with
his recreational and other activities.

[43]        
The plaintiff in Neumann was 47 years old. He too had chronic
pain as a result of soft tissue injuries. His pain left him exhausted and it
persisted in spite of his best efforts to overcome it. He was off work for two
months following the accident and although he was eventually able to return to
his employment it was unclear how long he would be able to continue.

[44]        
The plaintiff in Kardum was a 37-year-old architect and an avid
runner. He sustained a soft tissue injury that developed into chronic pain. He
had ongoing headaches and his sleep was significantly disrupted. His pain and
the inability to sleep through the night left him exhausted and irritable. His
relationship with his fiancé was negatively affected. It was thought that his
condition might improve somewhat but it would never completely resolve.
Armstrong J. awarded $70,000 in non-pecuniary damages.

[45]        
Finally, in Johnstone the 32-year-old plaintiff was riding his
bicycle downhill at some speed when the defendant crossed into his lane. Brooke
J. noted that most of the plaintiff’s physical injuries had resolved by the
time of the trial. What did not resolve, and would likely remain a permanent
feature of the plaintiff’s life, were the psychological consequences of the
accident. He developed chronic pain and suffered from post-traumatic stress
disorder and major depression. He had been an avid cyclist at the time of the
accident in addition to participating in many other sports. Most of those were
no longer open to him at all; others only in a very reduced way. He had been
prone to depression prior to the accident and found physical exercise the best
way to both prevent it and ameliorate its consequences when it could not be
prevented. He was unable to do that because of the accident. He was awarded
$100,000 in general damages.

[46]        
The circumstances of the plaintiffs in the foregoing cases differ from
Ms. Travelbea’s situation in several important respects. First, while
Ms. Travelbea’s injuries have had a significant effect on her life, the
physical effects of her injuries have been felt primarily, but not exclusively,
in reasonably demanding athletic endeavours. She has continued to work; in fact
she has not missed a single day of work due to the accident. At least initially
she continued with her recreational pursuits. I accept that she did not derive
anything like the enjoyment from them that she did before, but she continued to
do physically demanding exercise. While I suspect there is a psychological
overlay to her situation, no one has diagnosed her with any specific condition,
including depression or chronic pain. When I earlier described her depression I
meant that in the lay sense. Her affect was at times flat as she testified; her
husband and friends described her as withdrawn, lacking in spontaneity and
generally verging on unhappiness. Second, I am satisfied that her condition
will improve. Both physiatrists are of that view and there is no reason to
conclude otherwise. She will be left with residual problems, but they will not
be as disabling as her symptoms are now.

[47]        
As to the defendant’s authorities, in Filimek the 36-year-old
plaintiff suffered soft tissue injury to his back. He was very physically
active. He was in significant pain following the accident, so much that he was
unable to work for two weeks. His sporting activities were interrupted and he
gained considerable weight. By the time of the trial, just two years after the
accident, he had returned to most of his pre-accident sporting activities and
his only ongoing complaint was intermittent and unpredictable back spasms.
While those spasms were painful, they only occurred three or four times a year
and their frequency was declining. He was awarded $30,000 in general damages.

[48]        
The 53-year-old plaintiff in Olianka suffered moderate soft
tissue injury to his back that manifested itself in spasms. By the time of the
trial, almost three years after the accident, he had made a “significant
recovery”. While he still experienced intermittent pain, those episodes were
becoming less frequent and less intense. He was expected to make a complete
recovery. The court awarded him $30,000 in non-pecuniary damages.

[49]        
 The 53-year-old plaintiff in Manson sustained mild to moderate
soft tissue injuries to his cervical and lumbar spine. His symptoms had
persisted almost three years by the time of the trial and were expected to
continue a further two to four years. His injuries did not significantly affect
his activities or his general lifestyle; the changes to those things were found
to be due to other circumstances. He was awarded $25,000.

[50]        
In Olynyk I awarded $40,000 in general damages, less a reduction
to reflect a contingency based on a pre-existing condition. He was 46 years old
and sustained mild soft tissue injuries to his neck and moderate soft tissue
injuries to his back. He continued to experience pain at the time of the trial
(some three years post accident) and that pain was likely permanent, although
it would likely further abate.

[51]        
I awarded the 44-year-old plaintiff in Wilkinson $40,000 in
general damages. Her injuries were similar to those suffered by the plaintiff
in the matter at hand. She too had not followed a fitness regime that various
doctors had suggested she would benefit from. If she were to do that it was
expected her condition would improve, although she was not expected to ever be
entirely free of pain.

[52]        
While the injuries to the various plaintiffs in the foregoing cases were
in some respects similar to the injuries sustained by Ms. Travelbea, none
of them had the effect that her injuries have had on her.

[53]        
The defendant recognizes that the plaintiff’s injuries have affected her
ability to participate in endurance athletic events. He argues, however, that
her participation in such events was going to decline with her advancing years
regardless of the accident. Endurance athletes are prone to injury and the
likelihood of injury increases with advancing years. He argues that Ms. Travelbea’s
particular situation, and the other evidence in the case, supports those
general propositions. Ms. Fair is 55 years old and has done endurance
events about as long as the plaintiff and at about the same level. She came to
court on crutches because she had sustained a stress fracture of one of the
bones in her foot. Prior to the accident Ms. Travelbea had injured her
shoulder in the course of her swimming training. It was that injury that
resulted in a significant number of her pre-accident physiotherapy
appointments. She had also injured her IT band while running. After the
accident she developed plantar fasciitis. That condition kept her from running
(other than in the pool) and cycling for almost a year.

[54]        
Taking all of the foregoing into account, and having regard to the
non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet,
I consider that an award of $50,000 is appropriate in this case. Included in
this amount is $3,000 which I have determined is the appropriate compensation
for the plaintiff’s lost capacity to perform housekeeping tasks.

[55]        
The defendant argues that any award of general damages should be reduced
on the basis that the plaintiff failed to mitigate the consequences of her
injury. Her failure is said to consist of not taking the medication that
Dr. Travlos recommended and not following Dr. Laidlow’s advice to
pursue a targeted and supervised stretching regime.

[56]        
Kerr J. summarized the law as it relates to the duty to mitigate in Jobs
v. Van Blankers, 2009 BCSC 230 where at paragraph 107 she wrote:

[107]    The law imposes upon plaintiffs the
duty to mitigate their losses. This includes taking reasonable steps to
minimize any loss relating to injuries, so as to prevent plaintiffs from
recovering for harm and loss caused by their own neglect. In Graham v.
Rogers, 2001 BCCA 432, leave to appeal to S.C.C. refused, [2001]
S.C.C.A. No. 467, Madam Justice Rowles writing for a majority of the Court
of Appeal succinctly stated the principle of mitigation of damages in personal
injury cases at ¶35:

Mitigation goes to limit recovery based on
an unreasonable failure of the injured party to take reasonable steps to limit
his or her loss. A plaintiff in a personal injury action has a positive duty to
mitigate but if a defendant’s position is that a plaintiff could reasonably
have avoided some part of the loss, the defendant bears the onus of proof on
that issue.

[57]        
To succeed in the context of a personal injury claim, a defendant must
prove that a qualified medical or other professional recommended a course of
treatment or therapy; that the plaintiff failed to follow the recommendation;
that the plaintiff’s failure was unreasonable; and that had the plaintiff
pursued the treatment the consequences of his or her injuries would have been
reduced.

[58]        
In his April 2010 report Dr. Laidlow wrote that
Ms. Travelbea’s entire exercise program should be reviewed. He made
specific recommendations about stretching and suggested she engage a trainer to
supervise that aspect of her exercise regime. He was and remains of the view
that following such a program would increase her range of motion and, as a
result, her functionality. Ms. Travelbea did not follow up on this advice.
She testified that she took a number of exercise classes and that she spoke
with a person at the gym she belongs to about how to use various pieces of
equipment but that is obviously not what Dr. Laidlow had in mind. She did
not give anyone, including her physiotherapists, a copy of Dr. Laidlow’s
report. I am satisfied that had she followed Dr. Laidlow’s recommendations
she would have increased her functionality and thus reduced some of the
consequences of her injuries. I am also satisfied it was unreasonable for her
not to follow that advice.

[59]        
Dr. Travlos recommended two medications in his April 2011 report
(in fact he commented on three but only two are relevant for the present
purposes). The first was a Celebrex. He wrote that this medication “should be
of some benefit” to Ms. Travelbea although he did not expect it would
resolve her problem. The plaintiff did not take that medication because her
family doctor told her it might cause kidney damage. Next Dr. Travlos
recommended a course of nortriptyline. He wrote that a number of his patients
with injuries similar to those of the plaintiff had experienced significant
reductions in the intensity of their pain. Ms. Travelbea obtained a
prescription for nortriptyline six months after she saw Dr. Travlos. She
took one pill and developed diarrhea. While Dr. Travlos did not rule out
the possibility that the medicine might cause diarrhea, he thought it very
unlikely; it’s much more common side effect is constipation. I am satisfied
that had she followed Dr. Travlos’s recommendations about these
medications it is more likely than not that she would have had relief from some
of the pain she has experienced. I am not satisfied that her decision not to
take either medication was reasonable. As to the nortriptyline, it was
unreasonable to conclude that it caused the problem she experienced. It might
have but to reach that conclusion, on the basis of a single dose (and a dose
that was only one quarter the strength that Dr. Travlos recommended) and
in the face of the expected side effects it was likely to produce, was
unreasonable. To not even try the Celebrex because of the possibility of kidney
damage was unreasonable. According to Dr. Travlos the risk of kidney
damage is very remote, absent long-term consumption of much higher dosages.

[60]        
I am satisfied that the defendant has established that the plaintiff
failed to reasonably mitigate the consequences of her injuries. I have taken
into account the benefit that I think it likely she will derive from the
exercise and the medication going forward in assessing her general damages. She
would have experienced some benefit in the past had she followed the medical
advice she received. The stretching would not (and will not) yield immediate
results nor will those results be particularly significant in the plaintiff’s
overall situation. The medicine will likely give some relief and that relief
will be (and would have been) almost immediate. I think it reasonable to reduce
the award of general damages by a modest amount to reflect the mitigation that
would have occurred by now. I set that amount at $1,500.

b)       Loss of Future Income Earning Capacity

[61]        
In Perren v. Lalari, 2010 BCCA 140 Garson J.A. summarized the
legal principles applicable to a claim of loss of future income earning
capacity. At paragraph 32 she set out the fundamental proposition that must be
established before such an award can be made. She wrote:

A plaintiff must
always prove … that there is a real and substantial possibility of a
future event leading to an income loss.

[62]        
Ms. Travelbea has worked in clerical or retail service positions
throughout her adult life. Her jobs have always been part time. She was
employed as a receptionist in a physiotherapy clinic at the time of the
accident. She and another employee were job sharing, covering a single
full-time position between them. When her job sharing partner quit, the
position was filled by a person willing to work full time. Ms. Travelbea
then worked briefly as a receptionist in another clinic until she secured a job
at the health food store in September 2009. She was initially working 32 hours
a week in the produce department. At her request she was given a cashier job in
January 2012. She made this request because she found some of the lifting she
was required to do painful. She said at trial that she asked for a reduction in
her hours from four days a week to three days a week because four days a week
was too much for her in the sense that it was taxing her physical abilities,
notwithstanding that she is not advancing a claim for past wage loss. On
examination for discovery she said she “preferred more steady work, three days
a week”. She was asked why she was not working full time and she said “[m]y
husband is semi-retired and that’s our choice, that I work part-time.”

[63]        
As noted, Ms. Travelbea has not missed any time from work due to
her injuries. Her condition has gradually improved in the past four years. For
the reasons already given, I am satisfied she will achieve still further
improvement in her level of function in the months to come. There is no
suggestion her current job is at risk. Although she changed jobs due to her
physical limitations, she worked in the produce department for two and one-half
years without missing any time.

[64]        
The plaintiff argues that support for this head of damages is found in
the functional capacity evaluation of Ms. Branscombe. She concluded that
Ms. Travelbea is not able to carry out the demands of a grocery store
cashier, at least as the demands of that position are generically described in
the Dictionary of Occupational Titles. Ms. Branscombe found
Ms. Travelbea to be physically capable of work in the light to medium
range. She concluded that Ms. Travelbea is not able to carry out all of
the demands of her position as a grocery clerk primarily because she has
difficulty sustaining postures needed for above-shoulder work and forward-reaching
or neck-extension postures. That conclusion is based in part on the assumption
that a grocery store cashier is required to do things at above-shoulder level
up to one third of the time. It may be that Ms. Travelbea was required to
work above-shoulder level when she was in the produce department, but there is
no evidence her present position requires that. Further, whatever forward
reaching is involved in her job, she is able to do it; she sought out the
position and has been doing it without apparent ill effect for eight months.
She did the more physically demanding produce job for over two years. I do not
find Ms. Branscombe’s conclusion that Ms. Travelbea is limited in her
ability to perform a grocery store cashier’s role persuasive. It might be otherwise
if Ms. Travelbea wanted to work full time or if her condition deteriorates
but there is no real and substantial possibility of either of those things
happening.

[65]        
In these circumstances I am not persuaded there is a real and
substantial possibility of a future event that will lead to an income loss that
is causally related to Ms. Travelbea’s physical limitations.

c)       Cost of Future Care

[66]        
The plaintiff claims approximately $65,010 in cost of future care
damages. That sum is made up of $1,421 in annual medication expenses; annual
physiotherapy, massage therapy and acupuncture costs of $240; occupational
therapy assistance of $900; seasonal homemaking and maintenance of $1,500
annually; and one-time equipment expense of $2,220 (extension mirror, hands-free
blow dryer, knee bolster, long-handled scrubber, three-step stool, robotic
vacuum, and a powered bicycle).

[67]        
In Milina v. Bartsch,
[1985] B.C.J. No. 2762 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.),
McLachlin J. (as she then was) summarized the legal principles that govern the
future care awards. She held that the test is objective and based on the
medical evidence of what is medically justified or is reasonably necessary to
preserve the plaintiff’s health. In Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 Garson J.A. wrote at paragraphs 38 and 39
that:

[38]      Courts do accept testimony from a variety of health
care professionals as to necessary and reasonable costs of future care: Jacobson
v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377
(S.C.) at para. 182; in which Levine J. (as she then was) said:

[182]    The test she enunciated
does not, in my view, require that the evidence of the specific care that is
required by the plaintiff be provided by a medical doctor. In Milina v.
Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as
to the type of care that should be provided.

See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53,
63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.

[39]      I do not consider it
necessary, in order for a plaintiff to successfully advance a future cost of
care claim, that a physician testify to the medical necessity of each and every
item of care that is claimed. But there must be some evidentiary link drawn
between the physician’s assessment of pain, disability, and recommended
treatment and the care recommended by a qualified health care professional:
 Aberdeen at paras. 43, 63.

[68]        
With these principles in mind I turn to the specific items claimed.
Dr. Travlos did not mention, never mind recommend, further physiotherapy,
massage therapy or acupuncture. Dr. Laidlow did mention such therapies but
said that he saw no benefit in her carrying on with them. This aspect of the
claim is not supported by the evidence. Nor in my view is the cost of an
occupational therapist. For the reasons given above I am satisfied that
Ms. Travelbea is able to do her job now and she will continue to be able
to do it, or any other similar position that she is likely to take. I am not
persuaded the evidence supports an award for the services of an occupational
therapist.

[69]        
As to medications, Ms. Branscombe’s recommendations are based on
the plaintiff taking nortriptyline, two over-the-counter anti-inflammatories,
and two other “natural” remedies. While Ms. Travelbea said she would not
take nortriptyline because of the side effects; she may revisit that
conclusion, particularly after she considers Dr. Travlos’s evidence. It
may also be that she concludes the consequence she attributed to the drug was
actually due to something else. It may also be that there are other medications
similar in action which would assist her (such as Celebrex or Lyrica, both of
which Dr. Travlos thought might be helpful). I have assessed her general
damages on the basis that she will get some relief from one or another of these
medications and it is appropriate that she recover their cost. I also think it
reasonable to expect she will continue to take over-the-counter medications
such as Advil and Aleve. There is a significant discrepancy between the
consumption Ms. Branscombe based her recommendations on (six tablets of
each daily) and the amount Ms. Travelbea testified she took. She said she
might take six of one or the other on a “bad day” but that in general her
consumption was much less. As to the natural remedies, no medical professional
or other witness has recommended either of the ones that Ms. Travelbea
takes. I am not satisfied the cost of those remedies is properly compensable.

[70]        
In summary, the annual cost of the medications is $185 consisting of $76
for Advil, $62 for Aleve and $47 for Nortriptyline. The present value of that
annual expense to the end of Ms. Travelbea’s expected life is $3,407.

[71]        
The equipment Ms. Branscombe recommended includes a motorized
bicycle, an extension mirror, a hands-free blow dryer, a knee bolster, a
long-handled scrubber, a stool, and a robotic vacuum cleaner. The extension
mirror and the blow dryer are intended to allow Ms. Travelbea to do
personal grooming without lifting her arms above shoulder level. To the extent
she can reduce the need to adopt that posture, her pain will likely be reduced.
I think it reasonable to cover these relatively minor costs. I do not
understand how an under-the-knee bolster would assist Ms. Travelbea. It is
something that relieves pressure on her low back. As for the homemaking
equipment, Ms. Travelbea has a stool. She said that she has been cleaning
the bathtub by actually getting in it but she would prefer to try a
long-handled scrubber. She thought the robotic vacuum extravagant, but would
like to try it. As I understand the evidence, Mr. Travelbea has taken up
much of the vacuuming. I have considered that in dealing with the loss of
housekeeping capacity and thus do not think the cost of a robotic vacuum is
reasonably necessary.

[72]        
Ms. Travelbea said she would not ride a motorized bicycle, however
she also said she is looking for a bicycle that she can ride without the
discomfort that riding a road bike causes. Dr. Travlos recommended that
she look into a bicycle with different geometry so that she could continue to
get the benefit that cycling provides without the neck pain she experiences on
a road bicycle. I infer that a mountain bicycle or a cruiser style bicycle is
what Dr. Travlos had in mind and that such a bicycle would provide a
reasonable substitute for the cycling she used to enjoy. I will allow $1,500
for the purchase of such a bicycle. In summary, equipment costs of $1,637 are
recoverable.

[73]        
The final aspects of the cost of future care relate to home maintenance
and seasonal homemaking. The Travelbeas have just moved into a new
single-family home in a strata, and as a result Ms. Travelbea said she did
not know what seasonal maintenance would be required. The homemaking tasks that
Ms. Branscombe had in mind involve things such as washing the siding,
cleaning the gutters and painting. The seasonal homemaking chores involve
window washing, washing the walls, cleaning the carpets, and cleaning the
kitchen appliances. All of these things involve either overhead reaching or
postures that require neck extension.

[74]        
The defendant argues that this aspect of the plaintiff’s claim is not
reasonable given that Ms. Travelbea was able to complete two triathlons
following the accident. She should be able to do the kind of tasks that
Ms. Branscombe had in mind. Further he argues that there is no evidence
that the home the plaintiff lives in will actually require the kind of outdoor
seasonal maintenance the cost is predicated on. I recognize that
Ms. Travelbea did complete two triathlons after the accident. She did
those in 2009 and has not competed in any since. I am satisfied she did those
races because she was determined to continue with that form of recreation,
believing that if she was determined enough she would be able to overcome her
limitations. While her determination was commendable, she was wrong in her
assessment. She competed at considerable cost in terms of subsequent pain. I am
satisfied that overhead reaching is something she can do but only with pain. It
is something that she ought to avoid if she is to remain as functionally
capable as possible in other areas of her life.

[75]        
I think it reasonable to infer that windows and walls will have to be
washed and that there will likely be some exterior seasonal maintenance that
will be beyond Ms. Travelbea’s functional ability. I think an annual cost
of $1,000 is reasonable for these tasks. The present value of that annual
expense to age 70 (which is when I find that Ms. Travelbea would likely
not be doing such tasks in any event) is $12,880.

[76]        
In summary, Ms. Travelbea is entitled to $17,924 for the cost of
her future care.

d)       Loss of Past and Future Housekeeping Capacity

[77]        
In Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R.
(3d) 178, Gibbs J.A. on behalf of a majority of the Court of Appeal held at
paragraph 9 that "housekeeping and other spousal services have economic
value for which a claim by an injured party will lie even where those services
are replaced gratuitously from within the family". In McTavish v.
MacGillvray, 2000 BCCA 164, Huddart J.A. wrote at paragraph 63 that it is
"well established that a plaintiff whose ability to perform housekeeping
services is diminished in part or in whole ought to be compensated for that
loss.”

[78]        
As to how that loss is valued and compensated, there are two options.
One involves compensating the loss as a separate head of pecuniary damage. Such
an approach is often appropriate if the claim can be valued, and it is usually
valued by reference to the cost of replacing the lost capacity. Alternatively,
the loss can be compensated for as part of the general non-pecuniary damage
assessment. This is sometimes appropriate when the evidence does not otherwise
permit a quantification of the loss. The latter approach was taken by Joyce J.
in Eaton v. Regan, 2005 BCSC 3 at paragraphs 40 to 46. Under either
method the plaintiff must prove a loss of capacity.

[79]        
The evidence on this aspect of the plaintiff’s claim comes from the
plaintiff and her husband. He testified that Ms. Travelbea was a
meticulous housekeeper and a good and imaginative cook. Since she sustained her
injuries he said he has assumed the greater share of the housekeeping. He said
he now does all the laundry, washes all the floors, and does about half of the
cooking. Prior to the accident both the plaintiff and her husband said they
shared the household tasks about equally. She said that initially she was able
to still do her share but over time her capacity has diminished particularly in
relation to washing the floors, vacuuming, laundry and the more significant
semi-annual cleaning tasks. There is no evidence as to how much time
Mr. Travelbea spends on the tasks that he would not have spent but for the
accident; nor is there any evidence as to what the value of that work might be
(although I would be prepared to infer that it is worth at least minimum wage).

[80]        
In view of the foregoing I consider that, as was done in Eaton,
it is appropriate to compensate the plaintiff for this loss, both past and
future, by way of the general damage award. I have included in that award the
sum of $3,000 for that purpose. In determining this sum I have taken into
account that the plaintiff has been separately compensated for her lost ability
to do seasonal maintenance.

e)       Special Damages

[81]        
The parties agree that special damages of $1,450 are properly
recoverable for accident related physiotherapy. At issue are three other
expenses: physiotherapy and related passive therapies subsequent to April 2010
($4,700); the cost of gym membership ($580); and the cost of home care for the
plaintiff’s mother ($14,240).

[82]        
 The plaintiff’s family doctor stopped prescribing physiotherapy in
April 2010. Dr. Laidlow said that such therapies were not warranted. The
plaintiff told him that she only received “slight benefit” from those
treatments even prior to April 2010. The plaintiff said she learned of
Dr. Laidlow’s view on the matter either during her visit to his office or
shortly after. The post-April 2010 physiotherapy and related therapies are not
recoverable.

[83]        
While I agree that no medical professional has recommended that the
plaintiff work out at a gym, Dr. Laidlow did recommend that she
participate in supervised exercise and specifically stretching. She joined a
gym and took pilates and yoga classes, among others. I think joining the gym
and taking these kinds of programs was reasonable in an effort to overcome the
effects of the accident. The cost of past gym membership is properly
recoverable.

[84]        
Ms. Travelbea’s mother’s health was significantly declining by
2005. She was in an assisted-living facility by September 2008.
Ms. Travelbea was able to take her to her appointments and perform some
personal care tasks for her. After the accident she was unable to do those
things. She could not manage lifting her mother’s wheelchair and, because of
her mother’s awkward posture, she could not do the personal care tasks she had
done previously. In January 2009 she hired Nurse Next Door to do this work. By
November 2009 her mother’s condition had deteriorated to the point where she
required 24-hour care and as a result Ms. Travelbea moved her to facility
with that level of assistance. Thereafter the services of Nurse Next Door were
not needed.

[85]        
The defendant argues that the claim for the plaintiff’s mother’s care,
care which the plaintiff had been providing, is not recoverable.
Ms. Travelbea was not obligated to provide the care that she did for her
mother; it was something she did out of love and affection. The cost of
replacing the care she provided is not Ms. Travelbea’s loss; it might be
her mother’s loss but if so it is not recoverable as a special damage in this
action. I accept that being unable to help her mother was a loss experienced by
Ms. Travelbea and that is properly reflected in her non-pecuniary damage
award but her mother’s expense in replacing the plaintiff’s gratuitously
provided services is not recoverable.

[86]        
The plaintiff is entitled to special damages of $2,010.

Costs

[87]        
Unless there are matters touching on the question of costs about which I
am unaware, the plaintiff is entitled to her costs at Scale B.

“G.M. Barrow J.”
The Honourable Mr. Justice Barrow