IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121129

Docket: M105424

Registry:
Vancouver

Between:

Ahla Rezaei

Plaintiff

And

Francisco Piedade
and Latin Supermarket Ltd.

Defendants

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

[1]            
This action arises from a motor vehicle accident in which the plaintiff,
Ms. Ahla Rezaei, was injured. The accident occurred on March 20, 2009 at
the intersection of Imperial Street and Waverly Avenue in Burnaby, British
Columbia (the “Accident”). Liability for the Accident was admitted by the
defendants. The trial occupied three days. The plaintiff called eight
witnesses, four of whom were experts. The defendants called no evidence.

[2]            
Ms. Rezaei has advanced claims for:

a)       non-pecuniary losses;

b)       loss of income;

c)       the losses arising from her
delayed University graduation;

d)       the costs of her future
care; and

e)       a
loss of housekeeping capacity.

[3]            
Ms. Rezaei’s special damages have been agreed on at $4,337.81.

The Accident

[4]            
Ms. Rezaei was 17 years old at the time of the Accident. She was
driving her mother’s van and was returning home after running various errands. Her
vehicle was struck from behind while she was waiting to turn left onto Waverly
Avenue. The defendant Mr. Piedade’s discovery evidence was that he was
traveling 45 to 50 km per hour leading up to the Accident and that he hit the
brakes on his vehicle, a van, when he was about 15 feet from the plaintiff’s
vehicle. The collision pushed the plaintiff’s vehicle into the intersection.
Both vehicles were badly damaged and were written off. The plaintiff, who was
able to get out of her vehicle to call her mother, was thereafter taken to the
hospital by ambulance. She was released later that evening wearing a neck
collar and was taken home by her father.

An Overview of the Plaintiff’s Pre-Accident Condition

[5]            
The plaintiff, and witnesses called on her behalf, gave detailed evidence
that addressed the specific claims she has advanced. I intend to address such
detailed evidence in its proper context.

[6]            
Ms. Rezaei was in her last term of Grade 12 at South Burnaby High
School at the time of the Accident. Her health was excellent. She suffered from
no apparent physical or emotional impediments. She was an honor roll student
and had been for several years. She took a heavy course load that included
mathematics, calculus, physics and chemistry. She took her studies seriously.
Her goal was to enroll in the Faculty of Engineering at the University of
British Columbia after her graduation from high school.

[7]            
Ms. Rezaei was on her school’s Dragon boat team and on the “Green Team” –
an environmental initiative organized by students. She was a social, happy and
positive person. She had a wide circle of friends with whom she enjoyed going
out. She was physically active and regularly went to the gym, to yoga or
Pilates or swimming with her friends. She would periodically snowboard and
sometimes she skated or played soccer with her younger siblings. She was
diligent. She worked part-time at Sears in Grade 10. Thereafter she worked at
her mother’s daycare, the House of Angels, in both Grades 11 and 12.

[8]            
She was actively involved in helping around the home and, from a young
age, was expected to assist with household tasks such as cooking, cleaning and
caring for her twin siblings, who are currently ten years old.

[9]            
Different aspects of the foregoing evidence were advanced by the
plaintiff, her mother, Mr. Li (her high-school principal) and Ms. Toghiani-Risi
(a long-time friend). None of this evidence was contested in any serious way and
I find that the foregoing profile fairly and accurately describes Ms. Rezaei’s
emotional and physical state as well as her activities prior to the Accident.

[10]        
Two issues, however, warrant comment and I will develop them more fully in
due course. First, there is some issue about whether Ms. Rezaei had a
pre-existing problem with her lower back and whether she had a pre-existing
anxiety disorder. Second, while I accept the general parameters of the
foregoing description, its details seem exaggerated. Thus, Ms. Rezaei was
said to have worked at her mother’s daycare in Grade 12 for an hour in the
morning before school and from 3:00 to 6:30 p.m. after school on Mondays
to Fridays. She was said to have worked still longer hours on professional days
or holidays. Apparently she also helped clean around the house for one to two
hours a day and helped take care of her siblings for one to two hours a day. Between
Dragon boat training, going to the gym and swimming, she ostensibly had some
physical exercise on most days, as well. Lastly, she was said to be a diligent
student who also spent time with friends. Most of this evidence came from the
plaintiff and her mother. These descriptions of Ms. Rezaei’s activities,
in combination, seem somewhat overstated.

Ms. Rezaei’s Injuries and Causation

[11]        
The plaintiff claims she suffered numerous injuries as a result of the
Accident. She struggled with headaches and pain in her neck, mid-back, low
back, right shoulder, right and left wrist, and right ankle after the Accident.
The plaintiff has also had some emotional difficulties, in particular, anxiety
attacks which she ascribes to the Accident. The defendants accept that most of
these injuries were caused by the Accident. Some issues arise with four
specific injuries.

a)       Right Wrist/Hand

[12]        
Dr. Crossman, an expert in physical medicine and rehabilitation
called on behalf of the plaintiff, was reluctant to express an opinion on
whether the plaintiff’s right wrist and hand injury was caused by the Accident.
His reluctance arose from the fact that Ms. Rezaei did not complain of
this particular injury until early May 2009, about six weeks after the
Accident. Dr. Crossman acknowledged, however, that the pain in her right
shoulder, which radiated downward, may have “masked” her right wrist pain and
raised other explanations for this delay as well.

[13]        
In Snell v. Farrell, [1990] 2 S.C.R. 311 at 328, Justice Sopinka,
for the court, confirmed that “causation need not be determined with scientific
precision” and that, in given cases, an inference of causation can be drawn: see
330-31 and 336.

[14]        
In Sam v. Wilson, 2007 BCCA 622, 78 B.C.L.R. (4th) 199, Justice
Smith, for the majority, said:

[144]    Thus this Court held in Moore v. Castlegar &
District Hospital (1998), 49 B.C.L.R. (3d) 100, 103 B.C.A.C. 187, that it
is not open to a trial judge to draw a common-sense inference of the cause of a
medical condition where both parties have led expert medical evidence of
causation. Speaking for the Court, Hollinrake J.A. said,

[11]      With respect, I think in a case like this where
there is affirmative medical evidence leading to a medical conclusion it is not
open to the court to apply “the common sense reasoning urges in Snell v.
Farrell.” […]

[15]        
These comments are not directly engaged in this case. Though Dr. Crossman
was reluctant to express a medical conclusion on causation to the appropriate legal
standard he left the issue open. He expressed the basis for his reservation and
explained the factors that militated against that reservation. He said he left
it to the court to address this six week gap in time and its significance.

[16]        
There are a number of cases where such inferences of fact have been
drawn by a court: Cherry (Guardian ad Litem) v. Borsman (1992), 94
D.L.R. (4th) 487 at 505-506, 70 B.C.L.R. (2d) 273 (C.A.); Levitt v. Carr (1992),
66 B.C.L.R. (2d) 58, [1992] 4 W.W.R. 160 at 179-186 (C.A.).

[17]        
In this case I conclude, on the balance of probabilities, that the
Accident caused Ms. Rezaei’s ongoing wrist pain. She said, and I accept,
that she believed she had both her hands on the steering wheel of her vehicle
when she was struck from behind. She complained immediately of right shoulder
and right arm pain. She spent almost all of the ensuing six weeks at home.
There is no record of her injuring her right wrist in any way during this
period. There is no evidence of any pre-existing right wrist injury. Thereafter,
the plaintiff’s right wrist pain became sufficiently acute that she was referred
to a neurologist. With this backdrop, I consider the inference I have drawn to
be pragmatic and an exercise of “ordinary common sense”.

b)       Pre-existing Lower Back Pain

[18]        
The plaintiff saw her current family doctor, Dr. Frank, for the
first time on April 16, 2008. At that time, Dr. Frank made a clinical note
that the plaintiff had previously experienced lower back pain and had received some
chiropractic treatments. There is no reference to back pain in Dr. Frank’s
notes in the ensuing year. Ms. Rezaei had limited memory of this matter
but believed that, at some point, she injured herself snowboarding and
thereafter saw a chiropractor a few times.

[19]        
Ms. Rezaei was also cross-examined about a clinical note in her
earlier family doctor’s records, dated June 2007, that made reference to low
back pain. She had no memory of the event or note. It is not clear if this
reference is to the same incident which she subsequently reported to Dr. Frank.

[20]        
Finally, Ms. Rezaei was cross-examined about an ambulance report
generated shortly after the Accident which made reference to Ms. Rezaei
having “chronic back pain”. Ms. Rezaei did not know anything about the
reference. The note, without more, establishes little.

[21]        
Ultimately, the plaintiff had no memory of any real back pain before the
Accident other than in association with menstrual pain. I accept that evidence.
She was, as I have said, active and athletic. Ms. Rezaei, her mother and Ms. Toghiani-Risi
all said that the plaintiff was healthy and free from any pre-existing
difficulties. I accept that evidence and conclude on the balance of
probabilities that her ensuing low back pain was caused by the Accident.

[22]        
I also observe that the defendants did not suggest to any witness,
expert or otherwise, that Ms. Rezaei’s post-Accident low back pain might
have arisen in any event as a result of an existing condition. There is no such
evidence before me.

c)       Headaches and Migraines

[23]        
Ms. Rezaei complained of headaches on her first visit to Dr. Frank.
She continued to complain of headache pain in the ensuing months. In November
2009, the plaintiff complained to Dr. Frank of photophobia, which
suggested to Dr. Frank that the headaches were migraine-like in nature. Dr. Frank
prescribed a migraine medication, Zomig, to Ms. Rezaei.

[24]        
The defendants argued that the plaintiff’s migraines are distinct from
her headaches and arose independently from the Accident. This issue was canvassed
most fully during the cross-examination of Dr. Robinson, a neurologist.

[25]        
This issue is important because Ms. Rezaei’s headaches and/or
migraines are amongst the most severe and enduring of her symptoms.

[26]        
Dr. Robinson explained that post-traumatic headaches are not well
understood and have not been extensively studied. He said that there are no
defining characteristics for such headaches and that they are often confused
with migraines and other forms of headaches. He further explained that there is
a spectrum of severity associated with such headaches. One end of that spectrum
includes headaches that have migraine-like features and that respond to
medications designed to deal with migraines. He further said that these
headaches often continue after a neck injury, which may have been associated
with the onset of the headaches, has abated. He considered that some of the
triggers for the plaintiff’s headaches/migraines, such as studying or sitting,
were more typical of accident-related headaches. This is consistent with the
evidence given by the plaintiff. It is also consistent with the history taken
by Dr. Crossman who observed that the plaintiff’s headaches, including her
severe headaches, tend to come on with increased neck pain.

[27]        
Importantly, Dr. Robinson said that it would be a “huge stretch”
and “extraordinarily unlikely” that the plaintiff’s “migraines” arose
spontaneously or “de novo” as opposed to having been caused by the
Accident. I accept this evidence and his conclusions.

[28]        
Finally, I note that the plaintiff said her parents painted her bedroom
with a dark color in the summer of 2009, or within a few months of the
Accident, to address her photosensitivity and its impact on her headaches. This
further narrows the time period after the Accident when the plaintiff began to
have severe headaches with migraine-like attributes.

d)       Anxiety

[29]        
There is no evidence that Ms. Rezaei ever struggled with anxiety
attacks or that she had ever taken any anxiety related medication prior to the Accident.

[30]        
The general evidence of her mother and of Ms. Toghiani-Risi was
that the plaintiff displayed no pre-existing anxiety condition. Her mother
described her as calm and patient. Ms. Toghiani-Risi said that the
plaintiff was not easily stressed.

[31]        
However, the report filed by Dr. Frank said that the plaintiff’s “anxiety
disorder predated her Accident”, and that this disorder had a “significant
effect on the post MVA recovery and forced the recognition of an ongoing
anxiety disorder.” She was not asked to explain or expand on this conclusion by
the plaintiff and was not cross-examined on it by the defendants.

[32]        
On cross-examination, Dr. Robinson said that the plaintiff gave no
history of any anxiety issues and that there was no basis to make a diagnosis
of a pre-existing anxiety disorder before the Accident. He did say that the
fact the plaintiff had a panic attack at the scene of the Accident suggested
she had “a tendency” to anxiety.

[33]        
Though there appears to be some conflict between these two opinions, I
consider this conflict to be more apparent than real. There is no evidence, as
I have said, that the plaintiff had any objective pre-Accident manifestation of
an anxiety disorder. Instead, it appears that she had an anxiety disorder that
was latent and that the Accident “forced its recognition”, or that she had “a
tendency” towards anxiety before the Accident.

[34]        
The reality, however, is that the plaintiff had a panic attack at the
Accident, that she had discussions about her anxiety with Dr. Frank at their
first meeting after the Accident and that she was prescribed Celexa, an
anti-anxiety medication, by Dr. Frank at their second meeting. She has
since struggled with anxiety, had a number of panic attacks in various contexts
and has taken anxiety medication on an ongoing and regular basis.

[35]        
The opinions of Dr. Frank and Dr. Robinson are both consistent
with the plaintiff having either a pre-existing but dormant condition or a
tendency towards anxiety. Such a “tendency” is consistent with a pre-existing
vulnerability that would engage “thin skull” principles. In saying this, I
recognize that the burden of establishing causation lies with the plaintiff.

[36]        
In Lewis Klar, Tort Law, 4th ed. (Toronto: Thomson Carswell,
2008) at 487, the author succinctly states:

A defendant will be held liable
for the full extent of a plaintiff’s injuries, not withstanding that they were
more serious due to a pre-existing condition, or the increased vulnerability of
the plaintiff, as long as the initial injuries were of a kind that was
reasonably foreseeable.

[37]        
In Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318, [1996] 8 W.W.R.
239 (C.A.), Justices Lambert, Cumming, and Rowles gave separate reasons but
concurred in the result. Mr. Justice Lambert confirmed that “thin skull”
principles extend to psychological injuries. Specifically, at para. 19, he
said:

In my opinion there is no basis
for giving a more restrictive application to this principle in cases where
psychological injuries are suffered than would be given in cases where only
physical injuries are suffered. A predisposition to suffer psychological injury
in circumstances such as those brought about in a particular case by a
defendant’s wrongful act does not relieve the defendant of the liability to
compensate the plaintiff for the injuries represented by those psychological
symptoms. Such relief could only occur, as I have said, if the psychological
symptoms would have occurred in any event, even without the defendant’s
wrongful act, through an application of the cause-in-fact test.

[38]        
At para. 114 of her separate reasons, Justice Rowles stated, “[it]
appears to be well-entrenched in tort law” that “there is no difference in
principle between an egg-shell skull and an egg-shell personality”.

[39]        
In this case I consider that the plaintiff has established that she
suffered from a pre-existing psychological vulnerability and that the Accident
caused her anxiety to surface or become apparent.

[40]        
The latter portion of the foregoing quote from Lambert J.A. addresses
the “crumbling skull” doctrine which was succinctly explained in Athey v.
Leonati, [1996] 3 S.C.R. 458:

[34]      … The “crumbling skull” doctrine is an awkward
label for a fairly simple idea. It is named after the well-known “thin skull”
rule, which makes the tortfeasor liable for the plaintiff’s injuries even if
the injuries are unexpectedly severe owing to a pre-existing condition. The
tortfeasor must take his or her victim as the tortfeasor finds the victim, and
is therefore liable even though the plaintiff’s losses are more dramatic than
they would be for the average person.

[35]      The so-called
“crumbling skull” rule simply recognizes that the pre-existing condition was
inherent in the plaintiffs “original position”. The defendant need not put the
plaintiff in a position better than his or her original position. The
defendant is liable for the injuries caused, even if they are extreme, but reed
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40.
Likewise, if there is a measurable risk that the pre-existing condition would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malac v. J. C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at
pp. 851-852. This is consistent with the general rule that the plaintiff
must be returned to the position he would have been in, with all of its
attendant risks and shortcomings, and not a better position [emphasis in
original].

[41]        
Recent cases from both the B.C. Court of Appeal and B.C. Supreme Court
continue to paraphrase this Ianguage. Some representative examples include: T.W.N.A.
v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at paras. 26-37,
22 B.C.L.R. (4th) 1; Zacharias v. Leys, 2005 BCCA 560 at paras. 13-21,
219 B.C.A.C. 88; Penland v. Lofting, 2008 BCSC 507 at paras. 93-97,
60 C.C.L.T. (3d) 265; Carr v. Simpson, 2010 BCSC 1511 at paras. 113-117.

[42]        
As is plain from the language of Athey, the crumbling skull rule
should be considered at the assessment of damages stage. This was most clearly
confirmed by Smith J.A. in T.W.N.A. At para. 21, he wrote: “Thus,
the thin skull rule is a rule of liability relating to legal causation”. At para. 26,
he wrote: “The assessment of damages engages the ‘crumbling skull’ doctrine”.

[43]        
The relevant case law does not address an explicit “burden” or “onus” for
establishing that the crumbling skull rule applies. The general tenor of the
decisions, however, is that the defendant must establish it to the requisite
standard, likely because it will be the defendant who alleges it.

[44]        
An example of how this looks in practice is provided by Penland,
where MacKenzie J., as she then was, said:

[97]      In this case, while
find the medical evidence reflects that the Plaintiff suffers from
osteoarthritis, there is no evidence before the court that this is a
progressive, degenerative disease. I have already said that I cannot take
judicial notice about the nature of the osteoarthritis. Therefore, I am left
with the evidence that this disease did not impair her previous activities. The
evidence simply reflects that pre-accident, the Plaintiff had a static
condition that did not limit her activities in any way. There is no evidence
before the court that this would have changed in the future. This disposes of
the Defendant’s argument that this is a “crumbling skull” case because there is
no evidence before the court that osteoarthritis is a progressive and
degenerative disease. I [cannot] find, in the absence of any medical evidence
about the Plaintiff’s prognosis, that there is a measurable risk that this
pre-existing condition would have detrimentally affected the Plaintiff in the
future. To do so would be to speculate as there is no evidence to support that
assertion. Accordingly, I decline to reduce her damages.

[45]        
The absence of explicit language about the burden of proof is likely explained
by the standard of proof that is required. Unlike causation, which the
plaintiff must establish on the balance of probabilities, future hypothetical
events, like a crumbling skull, are given weight according to their relative
likelihood: Athey at paras. 26-28. There is, therefore, no clear
threshold per se, just an accumulation of evidence.

[46]        
The court must be satisfied that the evidence is not “mere speculation”.
There must be a “real and substantial possibility”, “measurable risk”, or
“realistic chance” that the crumbling skull would manifest itself: see, e.g. Athey
at paras. 27, 35-36, 48; T.W.N.A. at para. 59; Zaruk v.
Simpson, 2003 BCSC 1748 at paras. 39, 41, 22 B.C.L.R. (4th) 43.

[47]        
If the requisite standard is met, the approach normally taken is to
apply a percentage discount to the award that would otherwise be made: York
v. Johnston (1997), 148 D.L.R. (4th) 225, 37 B.C.L.R. (3d) 235 at para. 8
(C.A.).

[48]        
In this case, none of these issues were canvassed by the defendants with
either Dr. Frank or Dr. Robinson and I lack the evidential foundation
required to make any such assessment.

The Plaintiff’s Injuries, their Resolution and effect on her, and the Prognosis
for those Injuries

[49]        
For the month or two that followed the Accident, the plaintiff stayed at
home and missed most of her classes – a point I will return to. In the
ensuing months, she gained 20 – 30 pounds as a result of her inactivity.
For a four month span, she did not have a period.

[50]        
Over time, some of her injuries resolved. The pain in her left wrist and
right ankle resolved in six months. The numbness in her right hand resolved
over the ensuing 18 months. Ms. Rezaei diligently attended physiotherapy
from shortly after the Accident until May 2010. She also routinely attended at
a kinesiologist from November 2009 until May 2010. She said that she
discontinued both these forms of treatment in May 2010 because she felt she had
significantly improved and because the degree of such improvement had
plateaued.

[51]        
Ms. Rezaei testified that she continues to have some difficulty
with her low back and, in particular, a spot on her back which she described as
her “stuck spot”. She also described a “constant” aggravating feeling in her
back that is periodically painful. She continues to have some difficulty with
her right hand or wrist particularly with turning motions and when writing. Occasionally
her right hand gives way. She said her right hand still “feels different” from
her left hand. Her neck also continues to be painful at times. This pain is
made worse when she studies. This, in turn, leads to headaches. She continues
to have some soreness in her right shoulder particularly, for example, if she
carries her backpack.

[52]        
She continues to be on medication to address her anxiety. She
periodically has trouble sleeping and will sometimes wake up when she turns
over. She has been on various migraine medications, both preventative and
curative, for extended periods of time. She does not find over-the-counter pain
medications to be effective.

[53]        
She said she has good and bad days. On her good days, she can get up and
go to school. On her “okay” days, she gets by with pain. And on her bad days,
her migraines prevent her from getting out of bed. On some days, she struggles
with anxiety and pain of different types. She said she has “no symptom-free
days”.

[54]        
There are aspects of the plaintiff’s evidence that are difficult to
reconcile with the evidence of Dr. Frank and Dr. Crossman and,
indeed, with the claims she advances.

[55]        
In May 2012, the plaintiff told Dr. Frank that “she was at 90%” of
her pre-Accident function. She reported some ongoing problems and pain. Dr. Frank’s
report states: “I would agree that she’s back to about 90% of her former
function and am not certain that she will be able to return to her pre-Accident
status.”

[56]        
Dr. Crossman opined:

If Ms. Rezaei paces herself
and takes regular stretching breaks, she probably can participate in most of
the activities that she did prior to the MVA, again with some anticipated
increased pain. I do not think she would be restricted in her ability to
participate in domestic activities, such as cooking or cleaning. She might be
limited in her ability to perform heavier forms of yard work due to her lower
back pain, should this be a requirement in the future. Sustained cervical
flexion and extension, and repetitive or forceful overhead activities with the
right arm, might also increase her symptoms.

[57]        
I observe that the plaintiff does not advance any claim for a loss of
future wages, past the point when she expected to graduate. She also does not
seek any costs of future care that would relate to her requiring ongoing
assistance with her household activities.

[58]        
Some aspects of the plaintiff’s description of her current status did
not align with the foregoing medical opinions and painted a more enduring,
encompassing and severe level of impairment. Ms. Rezaei indicated that,
for all practical purposes, she is unable to clean her apartment. This task
falls to her boyfriend and roommate. She is unable to get groceries or to cook.
She has struggled significantly on the occasions that she has traveled. She has
yet to take a full course load at university. She cannot carry a backpack with
a textbook in it. She does not walk the family dog. Her help around the family
home is limited to “five to 10 minutes here and there”. She does not go to yoga
or Pilates. She does go to the gym regularly and has a personal trainer, but
her activities there are much more limited. She cannot run. She is limited in her
ability to swim. If she does anything physical she needs days to recover. She
tends to stay at home. She never goes to the movies. She feels sad, frustrated
and, on some days, hopeless. If all of this evidence were accurate, it would speak
to a relatively significant level of ongoing impairment.

[59]        
I raised my concern with the disconnect between aspects of the plaintiff’s
evidence and that of the experts who gave evidence on her behalf, as well as with
the failure to advance any claim for some of the categories of loss she
described with her counsel.

[60]        
I was told that some part of this disconnect is a function of the
language the plaintiff uses. She describes certain things as “horrible” or said
that they were “killing her”. The reports of Drs. Crossman, Robinson and Frank
revealed she periodically used similar language when describing her status to
them.

[61]        
Aspects of my concerns, however, go beyond a young person’s use of
language. Her description of her present level of functionality simply does not
align with the opinions of Drs. Crossman or Frank nor with other objective
evidence. For example, in 2011 and 2012, she worked on a part-time basis and
throughout much of the summer at the Eagle Ridge Golf Course. Though she was
not required to carry heavy items, she was required to, and did, stand
throughout much of her eight hour shifts. In addition, Ms. Toghiani-Risi said
that she regularly went to films with the plaintiff, though the plaintiff would
sometimes get up to stretch.

[62]        
I do not consider that the plaintiff purposely sought to mislead the
court. Nevertheless, I have already said that I believe her pre-Accident level
of activity was somewhat overstated. Similarly, whether through a lack of care
or some degree of hyperbole, either of which would detract from the reliability
of her evidence, I consider her description of her present level of impairment
to be somewhat exaggerated.

[63]        
I accept the plaintiff’s description of her injuries after the Accident
and their early impact on her schooling, social life and physical status. I
find that some of these physical injuries have resolved. Others continue to
persist, particularly her neck, low back and right hand, albeit on a much less
frequent basis and in a less intense way.

[64]        
I accept that she continues to struggle with headaches and anxiety and
requires medication to assist with both. I further accept that, periodically,
her headaches can be quite severe and interfere more dramatically with her
day-to-day life. I accept that she is not able to engage with the same vigor in
some of the physical activities she used to.

[65]        
I accept that she goes out less frequently than she did before the Accident,
and that she is less patient, more easily frustrated and more easily angered than
in the past. These latter findings are supported by the plaintiff’s evidence,
as well as the evidence of her mother and Ms. Toghiani-Risi.

[66]        
I find that she has regained most of her pre-Accident functionality and
can undertake most household activities, albeit with care. I accept that
certain activities that involve heavier or repetitive lifting are beyond her.

[67]        
I also find that she has worked diligently on her recovery, that she is
carefully following the advice of her caregivers and that she continues to
diligently follow the stretching and exercise regimes she was provided. No
issue was taken with these matters.

[68]        
Finally, all three experts foresee some level of ongoing difficulty for
the plaintiff. Their evidence and opinions in this respect were not contested
in any meaningful way. Based on these opinions, I find that she will continue
to have some level of residual difficulty with her neck and back on an episodic
basis (Dr. Frank). Some of her accident-related symptoms will be present
for many years to come. She is unlikely to be able to fully return to her pre-Accident
status (Dr. Frank). She may be limited in her ability to perform heavier
or repetitive types of physical activity (Dr. Crossman). She is likely to
require assistance with her anxiety and headaches in the long term (Dr. Frank/Dr. Robinson).
When she finishes university, it is expected that some of her stress will
lessen. Furthermore, if she learns to manage her anxiety, it is probable that
her headaches and sleep patterns will improve.

Non-Pecuniary Loss

[69]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, 263 D.L.R.
(4th) 19, Justice Kirkpatrick identified the following non- exhaustive
considerations that are relevant to an award of non-pecuniary damages: the age
of the plaintiff; the nature of the injury; severity and duration of pain;
disability; emotional suffering; loss or impairment of life; impairment of
family, marital and social relationships; impairment of physical and mental
abilities; loss of lifestyle; and the plaintiff’s degree of stoicism. The
object is to provide the injured person with reasonable solace for his or her
misfortune – thus, an appreciation of the individual’s loss is central.

[70]        
Having regard to the foregoing considerations, the plaintiff argues that
an award of $70,000 to $75,000 for her non-pecuniary losses is appropriate. The
authorities relied on by the plaintiff do not fully support such an award, even
recognizing that aspects of each such case will inevitably differ from the
particular circumstances of the plaintiff. Each of Fennell v. Hiebert,
2012 BCSC 1086, Bancroft-Wilson v. Murphy, 2008 BCSC 1035, aff’d 2009
BCCA 195, 92 B.C.L.R. (4th) 304 and Ashmore v. Banicevic, 2009 BCSC 211,
and the various authorities they refer to were useful; although, aspects of the
injuries of the plaintiffs in these cases were more severe.

[71]        
In Fennel, a decade after the accident, the plaintiff continued
to have relatively serious headaches on alternate days and continued to have three
to five chronic and debilitating migraines a month. In addition, the plaintiff’s
award of $70,000 for non-pecuniary loss included a component for loss of
housekeeping capacity, a category of loss that I have addressed separately. In Bancroft-Wilson,
the plaintiff was very active physically before his accident. He had virtually
stopped playing all sports in the years following the accident. He also
continued to suffer with regular and debilitating headaches. The court found
that his injuries and headaches had affected his career opportunities, and were
likely to continue to do so. He was awarded $70,000 for his non-pecuniary
losses. In Ashmore, the plaintiff struggled with “debilitating”
headaches and neck and jaw pain five years after his accident. His life and
activities had been significantly affected. He was awarded $80,000 for his non-pecuniary
losses.

[72]        
I consider that the findings I have made about the plaintiff’s injuries,
including their severity, their impact on her activities, lifestyle, schooling,
and general well-being and their prognosis support an award of $50,000.

[73]        
The defendants submit that an award of $30,000 to $40,000 fairly
compensates the plaintiff for non-pecuniary losses. One aspect of this
submission is premised on the assertion that the causal relationship of the
plaintiff’s migraines or migraine-like headaches to the Accident has not been
established – a proposition I have not accepted. I also consider that the
defendants’ submissions understate both the initial effect of the Accident on
the plaintiff as well as the plaintiff’s ongoing struggles (which are likely to
continue). Finally, I do not consider that the authorities relied on by the
defendants align with the circumstances of the plaintiff or the findings I have
made.

Loss of Income for Work at the Daycare

[74]        
The plaintiff’s claim for past and future wage loss is said to be a “straightforward
calculation”. The claim is premised on the thesis that Ms. Rezaei would
have continued to work at her mother’s daycare during the school year and would
have worked the same number of hours, on average, that she had worked in the
six months preceding the Accident. On this basis, the plaintiff would have
earned $1,133.33 per month while in university. The plaintiff’s claim is also
premised on her working full time at the daycare during the summer months of
each school year at $2,400 per month. The plaintiff and her mother both said
they had discussed this arrangement, in concept, prior to the Accident. I
accept that they had these discussions.

[75]        
The foregoing calculation is carried through to the end of May 2013 when
it was originally anticipated that the plaintiff would graduate from
university. Based on these assumptions, the plaintiff would have earned
$1,133.34 per month for 34 months (September to April of each year) and $2,400
per month for 16 months (May to August of each year). This would yield a total
of $76,933.22.

[76]        
Counsel for the plaintiff accepts that one must subtract the amount Mrs. Rezaei
has actually earned during this time from the total. The plaintiff has earned $17,250.43
from various forms of employment, including some work at the daycare. The
plaintiff’s total claim is thus $59,682.79 before taxes. Of this figure,
$50,082.79 is properly a past wage loss claim. $9,600 is a future wage loss
claim in that it extends from the date of trial through to May 2013.

[77]        
Significant aspects of this claim cannot be sustained. The claim is
premised on the plaintiff working the same number of hours at the daycare that
she had worked historically. I have already said that I question the accuracy
of some of those historical figures. More importantly, this underlying premise
is unrealistic. The plaintiff would have had to work 25 hours a week or more at
the daycare ($1,133.34 translates to about 110 hours of work per month). To
achieve this, she would have had to be at home by about 1:30 p.m. or so
every day. In saying this, I am also assuming the plaintiff would not have been
able to work for an hour each day before she left for university.

[78]        
When the plaintiff had these conversations with her mother she was
proposing to enroll on a full-time basis at the Faculty of Engineering at the
University of British Columbia. She would have had a very heavy course load.
Her daily commute to the university would have exceeded one hour in each
direction. Furthermore, the evidence of Ms. Toghiani-Risi was that she and
the plaintiff had discussed getting an apartment near the University of British
Colombia. Had this occurred, the whole of this aspect of the claim would fail.

[79]        
She is now enrolled at Simon Fraser University in a science program. The
fact that she has not carried a full course load in the last three years is
addressed in her claim for her delayed graduation. If she had carried a full
course load, with the lengthy lab work that she made reference to in her
evidence, she would again be curtailed in her ability to work part-time. Though
there was no direct cross-examination on this issue, I believe I can consider,
in a general way, the demanding nature of her current program. I can further
consider that classes, with the best of efforts, are usually somewhat
interspersed over the course of the day. Still further, in the context of other
aspects of the plaintiff’s claim, her counsel’s written brief emphasizes that
the plaintiff was “a hard-working student and studied hard”.

[80]        
The written submission filed by her counsel also indicates that the
plaintiff has now quit her part-time work “to concentrate on her studies”. I
expect that, if she had taken a full course load from the outset, particularly
with her aspirations of doing graduate work, she would have had to “concentrate
on her studies” in a serious, focused and time-consuming manner. The plaintiff also
said that the daily commute to and from Simon Fraser University by bus takes about
two hours.

[81]        
The plaintiff’s claim thus presupposes that she would have had seven
hours a day (five hours of work and two hours of commute time) from Monday to
Friday to work at the daycare, in addition to time for her course load, her
studies, her help around the house (for which she has advanced a separate
claim) and her other activities. I do not accept these contentions.

[82]        
The claim is further flawed because it does not recognize that, in
September 2011, the plaintiff moved out of her home to be closer to school. She
will be moving home this coming November. Thus, during this period of time, at
least during the school year, she would not have been able to work at her
mother’s daycare in any event. Finally, I consider that the plaintiff’s
part-time course load has provided her more opportunity to work on a part-time
basis than she otherwise would have had.

[83]        
Recognizing that this assessment is necessarily quite rough, and
recognizing that Ms. Rezaei earned some money working part-time, I
consider that the sum of $7,500 adequately compensates the plaintiff for the
aspect of her wage loss claim that pertains to her diminished ability to work
during the school year.

[84]        
Those aspects of the plaintiff’s claim that focus on her summer work at
the daycare are similarly flawed. The central premise is that she would have
worked for a full four months from May until the end of August each summer.
This seems unlikely.

[85]        
First, in 2009, when she was still in high school, the plaintiff would
have had classes or exams well into June. Had she taken any summer holidays,
she would have been able to work for perhaps two months. In addition, the
plaintiff has not been free to work for four months in past years. In 2010, the
family went to California in the summer for two weeks. In 2011, the family took
a six-week summer trip to Iran. I therefore consider that the plaintiff would
have been able to work for three months each summer on average. Over four years,
this would generate $28,800 at most. The precise amount that the plaintiff has actually
earned over the past three summers is not clear. The plaintiff expects to go to
school this coming summer, albeit on a part-time basis. She should, accordingly,
be able to work part-time as well. I have fixed the amount she has earned over
the past three summers and what she can likely earn this coming summer at
$13,000. Her claim for lost summer income is thus $15,800.

[86]        
I have determined the plaintiff’s total award for loss of wages is
$23,300.

Delayed Graduation

[87]        
The plaintiff’s former high school principal, Mr. Li, testified
that he recalled Ms. Rezaei and that she was a good student who was
engaged in her high school. She was a likely scholarship candidate. He said
that there was no reason she would not have been able to take a full course
load at university and that most students with her academic background did. In
her first and second terms of Grade 12, she had an 85% and 83.75% overall
average, respectively. In her third term, after the Accident, her average was
53.25%. She ultimately graduated with a 78.1% average for her Grade 12 year.
Both the plaintiff and Ms. Toghiani-Risi said that the plaintiff had
expected to take a full course load when she went to university. I accept the
foregoing evidence and consider that this was an entirely realistic expectation
on the part of the plaintiff.

[88]        
In the ensuing years at Simon Fraser University, the plaintiff has
generally taken a part-time course load. She has often taken additional courses
at the outset of an academic term only to later drop them. She has had to
repeat certain courses to improve her grades. The details of what has happened
from term to term are of no moment. The fact is that, at this point, her
graduation has been delayed by at least one year and seven months, from May
2013 to December 2014. She requires 120 credits to graduate; she currently has
67 credits.

[89]        
The plaintiff’s anticipated graduation date is premised on her taking
and carrying a full-time course load henceforth, something she has not yet
done. It is further premised on her studying in the summers, or at least part
of them, and on being able to take the courses that she requires in the summer.
If she is unable to graduate by April 2015, her plans to go to graduate school
and obtain a Master’s Degree would be further delayed.

[90]        
Ms. Rezaei presently plans to work in public health or health administration.
The expert report of Mr. Peever, an economist, establishes that $35,000
per annum represents an average salary for the jobs that the plaintiff might be
suited for when she graduates. No objection was taken to that figure.

[91]        
The defendants sought to argue that the plaintiff could have made up some
time by taking more courses in the summer. The plaintiff did say that she has,
at times, chosen to work during the summer rather than study. She also said
that she felt she needed a break. Dr. Frank has opined that “her
persistence in schooling even though she was significantly disabled has been
impressive”. Dr. Robinson stated that “[h]er accident related symptoms
have been an impediment in pursuing her postsecondary education.”

[92]        
Counsel for the defendants, in his submissions, said that he did not
question the plaintiff’s efforts to reasonably mitigate her losses. Yet, the
foregoing submission directly engages the issue of mitigation. The onus of
establishing that a plaintiff has not acted reasonably to mitigate his or her
losses falls on the defendant. In this case, the defendants have not satisfied
that onus. I would also observe that this issue is somewhat artificial. Had the
plaintiff gone to school during the summers, her summer wage loss claim would
have increased. The amount that she originally anticipated earning while
working at her mother’s daycare approximates the amount that she hopes to earn
on graduation.

[93]        
The plaintiff’s present claim, in conceptual terms, is supported by each
of Pelkinen v. Unrau, 2008 BCSC 375 at para. 98; and Williams v.
Nekrasoff, 2008 BCSC 1520 at para. 36.

[94]        
The plaintiff’s graduation has already been delayed. I find this delay
was caused by the Accident. I also consider that there is a real and substantial
possibility that her graduation may be further delayed. I consider that a total
delay of two years is likely for the plaintiff’s graduation. Accordingly, I award
the sum of $70,000 for this head of loss.

Loss of Housekeeping Capacity

[95]        
This claim is based on the plaintiff’s diminished ability to assist with
household chores. In McTavish v. MacGillivray, 2000 BCCA 164, 74
B.C.L.R. (3d) 281, Huddart J.A. said:

[63]      As we have seen, it is
now 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. It is equally well established that the loss of housekeeping capacity is
the plaintiff’s and not that of her family. When family members have
gratuitously done the work the plaintiff can no longer do and the tasks they
perform have a market value, that value provides a tangible indication of the
loss the plaintiff has suffered and enables the court to assign a specific
economic value in monetary terms to the loss. This does not mean the loss is
that of the family members or that they are to be compensated. Their provision
of services evidences the plaintiff’s loss of capacity and provides a basis for
valuing that loss. The loss remains the plaintiff’s loss of economic capacity.

[96]        
Ms. Rezaei and her mother both testified that the plaintiff was
unable to assist with various household activities after the Accident. While I
have said that aspects of the evidence which addressed the plaintiff’s pre-Accident
household activities seemed exaggerated, the present calculation advanced on
behalf of the plaintiff for this head of loss is reasonable.

[97]        
It assumes, in real terms, that the plaintiff would have helped with
various household chores that she was no longer able to perform for a total of
500 hours from the time of the Accident until she moved into her apartment in
September 2011. This timeframe aligns with the report of Dr. Crossman in
November 2011 and his assessment that the plaintiff was, at that time, capable
of performing most household tasks. This 500 hour figure translates to about a
half hour per day of household activity which, again, I consider reasonable.

[98]        
I agree with the plaintiff that a figure of $15 per hour represents a
reasonable market value for such services. That figure is consistent with the
figure used in Deo v. Deo, 2005 BCSC 1788 at para. 15 and in Chamberlain
v. Giles, 2008 BCSC 171 at para. 127. The $15 figure is also generally
consistent with what the plaintiff’s mother now pays her housekeeper.

[99]        
Accordingly, I award the plaintiff $7,500 for her loss of housekeeping
capacity.

Cost of Future Care

[100]    
In Fifi v. Robinson, 2012 BCSC 1378, Verhoeven J. succinctly
said:

[151]    The purpose of the award
for costs of future care is to restore, as best as possible with a monetary
award, the injured person to the position he or she would have been in had the
accident not occurred. The award is based on what is reasonably necessary on
the medical evidence to promote the mental and physical health of the
plaintiff: Gignac v. Rozylo 2012 BCCA 351, at paras. 29-30, citing
Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) and Aberdeen
v. Zanatta, 2008 BCCA 420.

[101]     The
plaintiff’s claim for future costs of care is supported by the reports and
evidence of each of Drs. Robinson, Frank and Crossman.

[102]     Dr. Robinson
opined that Ms. Rezaei would require different migraine medications for the
next three to five years. Based on the evidence of what the plaintiff presently
spends on such medications, this gives rise to an expense of between $1,700 and
$2,800, approximately, over that period of time. The midpoint of these figures is
$2,250.

[103]     Dr. Frank
testified that the plaintiff will require daily anxiety medication for the “long-term”
and explained that she believed this would be a “lifelong problem”. Over the
next ten to 25 years, the cost of such medication would give rise to an expense
of between $8,000 and $20,000, approximately. Keeping in mind the prospect of
positive and negative contingencies, adjusting for the necessary present value calculations
and in the absence of more guidance, I consider that a figure of $8,000 is
appropriate. I believe this figure to be reasonable when considered in
conjunction with the counseling that Drs. Frank and Robinson recommended and their
view that such counselling would also assist the plaintiff in managing her
anxiety.

[104]     Specifically,
each of Drs. Frank and Robinson recommended that the plaintiff have
psychological counseling involving cognitive behavioral therapy. Dr. Frank
recommended ten to 20 sessions and indicated that the cost of each such session
was between $125 and $150. Dr. Robinson stated that the plaintiff should
have 12 or more sessions and that the cost of each such session was between $150
and $160 per hour. I consider that an amount of $2,500 properly addresses these
costs.

[105]     In her
report, Dr. Frank indicated that the plaintiff would require occasional
physiotherapy services for recurrent episodes of neck and back pain. Dr. Crossman
also stated that Ms. Rezaei would require periodic refresher visits with a
physiotherapist or kinesiologist. He suggested that this would be required approximately
four times per year. I consider that an amount of $1,000 is reasonable for such
future treatments.

[106]     The sum of
these various individual future care expenses is $13,750.

Summary

[107]     I have
awarded the plaintiff the following amounts for the following specific
categories of loss:

[108]     I am
satisfied that the global amount of $168,887.81 fairly compensates the
plaintiff for her losses.

“Voith J.”