IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121219

Docket: 43779

Registry:
Kamloops

Between:

Elizabeth McKay

Plaintiff

And

Jeremiah Powell
and Virginia Seher

Defendants

– and –

Docket: 43780

Registry:
Kamloops

Between:

Elizabeth McKay

Plaintiff

And

Daniel Todd and
Bill Todd Ltd.

Defendants

– and –

Docket: 43781

Registry:
Kamloops

Between:

Elizabeth McKay

Plaintiff

And

Dennis Chappell

Defendants

Before:
The Honourable Mr. Justice Meiklem

Reasons for Judgment

Introduction to the Issues

[1]            
This trial concerned the assessment of damages for soft tissue injuries
sustained by Ms. McKay in three motor vehicle accidents between March 2008 and
March 2009. In all three collisions a vehicle driven by Ms. McKay was struck
from the rear. Liability has been admitted on behalf of all defendants and the
court has not been asked to apportion causation for the damages claimed between
the three defendants.

[2]            
The first accident, on March 3, 2008, was the most significant in terms
of impact force and consequential injury. That accident caused significant
damage to Ms. McKay’s Dodge Caravan as it was struck from behind by a pickup
truck while she was stationary and checking for traffic to her left as she was
merging into the traffic. The subsequent collisions of February 24, 2009 and
March 6, 2009 were comparatively minor impacts, but they occurred before Ms.
McKay had fully recovered from the first accident and they had the effect of
setting back and prolonging her recovery.

[3]            
Ms. McKay continues to experience headaches, soreness and pain in her
neck and shoulders and occasional numbness in her arms and hands. The plaintiff
seeks an award for non-pecuniary damages in the range of $50,000 to $75,000,
past income loss of $30,379.40 (in addition to benefits already paid out), loss
of earning capacity in the range of $30,000 to $65,000, and cost of future care
of $13,000.

[4]            
The defendants acknowledge a non-pecuniary loss but assert that the
appropriate award under that head of damages is $40,000. They dispute the
plaintiff’s claims that she was disabled from employment past the point of
wage-loss benefits already paid or that she is limited to her present part-time
work by accident-related injuries. The defendants assert that Ms. McKay has
failed to establish any lost future income earning capacity. Special damages
claimed in the amount of $3,192 were agreed to in closing argument.

[5]            
There is an issue concerning the reliability of Ms. McKay as a reporter
that initially emerged, it would appear, from the May 4, 2009 report of Dr.
Maryana Apel, a Calgary physiatrist, who conducted an independent medical
examination (“IME”) for the defendants’ insurer, Insurance Corporation of
British Columbia (“ICBC”), on May 4, 2009.

The Plaintiff’s Background and the March 3, 2008 Accident

[6]            
Ms. McKay is the mother of three children who were ages approximately eight,
five and one at the date of the first accident in March 2008. She was then age
26 and was residing, and still does reside, on a rural property near Kamloops
with her common law spouse. She does not have a high school diploma, and she
was a stay-at-home spouse and mother until, following the arrival of their
third child, she decided to seek employment to help out with depressed family
finances. Her spouse was a truck driver, but after suffering significant
injuries in a work-related accident in 2010, he has been retrained as a welder
and now works in a truck dealership repair shop.

[7]            
Ms. McKay saw a job posting on a bulletin board at the school where her
two older children were in grade 2 and kindergarten respectively, and she was
hired on February 8, 2008 at a saw sharpening business. She was classified as a
labourer and her job functions were largely physical. She prepared saw blades
for sharpening and was training to sharpen knives, and she packaged and
delivered saw blades to customers. Some larger saw blades required two people
to manoeuvre. She worked a 40-hour week, 8 a.m. to 4:30 p.m., Monday to Friday,
and earned $12.00 per hour. Her youngest daughter was cared for during work
hours by a woman whose children attended the same school as Ms. McKay’s older
daughters. Ms. McKay’s routine was to pick up all three daughters at the
sitter’s after work. The March 3, 2008 accident occurred as she was driving
from her workplace to pick up her children.

[8]            
Ms. McKay was wearing a lap and shoulder seat belt, but described the
impact as causing her body to hit the steering wheel of her van and then to hit
the back of her seat. She was able to pull over and converse with the other
driver involved and she proceeded to drive to the babysitter’s. She said she
initially felt shaken and her ribs hurt and she felt stiffness in her neck and
back and a headache caused by her neck stiffness. The babysitter carried her
infant daughter to the car and her mother-in-law (who resides on the same
property) helped her with the baby when she got home.

[9]            
Ms. McKay’s spouse was working night shift at the time, and after
preparing his lunch, Ms. McKay retired to bed. She was stiff from her hips to
her neck and had a headache. She did not sleep well and was even stiffer in the
morning, so after taking the children to school and the baby to the sitter’s,
she went to see her physician, Dr. Langford. By that time her arms and hands
were “tingly” and she had a severe headache. Dr. Langford prescribed
Cyclobenzaprine (Flexeril), Naproxen, Tylenol 3, and physiotherapy, and advised
her to take one to three weeks off work. Ms. McKay carried on to her workplace
to advise her employer of her injury and the doctor’s advice. Her employer, Mr.
Stankiewicz, did not express any concern about her prospective absence at that
time, but telephoned her a couple of days later to terminate her employment. He
did not provide her with his reasons for doing so.

[10]        
Mr. Stankiewicz testified that there were no issues with Ms. McKay’s job
performance and she was performing fairly well. He was expecting to expand her
functions to include more travelling to serve customers. He did not recall
specifically how he had handled Ms. McKay’s termination, but it appears that
part of his reasoning was that she was still in a probationary period. In any
event, he hired another woman to fill the job. That person was laid off
temporarily about one year later, because of a business downturn, but was
rehired about three months later.

The Plaintiff’s Progress and Treatment Following the First Accident.

[11]        
Ms. McKay started physiotherapy on March 10, 2008 and attended 23
sessions up to the end of August 2008 when funding by ICBC was terminated.

[12]        
In mid-March 2008, Ms. McKay’s physician, Dr. Langford, prescribed
massage therapy, and she attended eight sessions between March 25 and April 22,
2008. Her main complaints during those sessions were of daily headaches up the
back of her neck and into her temples, usually starting in the middle of the
day. She found the message therapy very beneficial.

[13]        
In the latter part of April, 2008, Ms. McKay decided to try chiropractic
treatment. Her message therapist provided the name of one, and ICBC authorized
funding for that. She attended four sessions in May 2008, and found that
although those sessions helped relieve the sharp pain at the base of her skull,
she was generally in more pain on leaving the sessions than she was beforehand.
She followed Dr. Langford’s advice that she should stop attending the
chiropractor.

[14]        
Dr. Langford has discontinued his medical practice and the only partly
useful evidence available from him in this case is his April 14, 2008 report to
ICBC on their CL19 medical report form. Dr. Langford’s handwriting is nearly
illegible, but I am able to discern that he reported a Grade 2 classification
for neck and upper back as well as lower back, and he reported that the
patient’s motor vehicle accident injuries disabled her from working full duties
full-time. He answered the question as to when she would be able to return to
the workplace in any capacity with “unknown, expect 3 months minimum”, and
indicated that she was capable of carrying out domestic tasks with pain.

[15]        
Between June 2008 and August 19, 2008, Ms. McKay participated in a ten-week
Supervised Active Rehabilitation Program (“SARP”), funded by ICBC and
supervised by the same physiotherapist. She found her symptoms improved under
this program, and the discharge report states that her lifting capacity
increased and she made steady gains through the latter portion of the program.

[16]        
Although Dr. Langford’s clinical notes are largely illegible, his notes
of Ms. McKay’s attendance on August 25, 2008 indicate that she reported that
full domestic duties were still too much and he made a note that she was still
unable to work. Ms. McKay testified that by the end of August 2008, and the
completion of the SARP, her headaches had reduced to once per week, and her
neck and shoulder pain had decreased, but she was still experiencing numbness
in her arms occasionally.

[17]        
At the end of August 2008, Ms. McKay did not yet feel ready to seek
employment, and she decided to improve her education so as to be able to seek
more suitable work. She enrolled in an English 50 (university preparation
developing writing skills) class at Thompson Rivers University (“TRU”) in the
fall semester 2008. This course involved three two-hour classes per week. She
completed and received credit for the course.

[18]        
The ICBC funding for income loss and physiotherapy treatments terminated
in September 2008, with Ms. McKay’s enrolment at TRU. In November Ms. McKay’s
symptoms returned and she attended two physiotherapy sessions at her own
expense. Her complaints on the first session on November 12, 2008 were recorded
as follows:

Was feeling good and doing
exercises, but progressively getting worse since leaving SARP. Tried taking
Amtryptilline, but didn’t like so tried Lyrica, and now has upper back spasms
and neck spasms. Getting worse in last few days. Stopped taking Lyrica.

[19]        
In January 2009, Ms. McKay enrolled in English 60 at TRU, hoping that
this would enable her to later pursue a Human Resources program. She withdrew
from that course in March 2009, following the third accident, finding herself
unable to concentrate or sit through the classes.

The February 24, 2009 Accident and Subsequent Treatment

[20]        
The second accident occurred as Ms. McKay was driving her children to
school. She was stopped in traffic on Columbia Street and a vehicle rear-ended
hers as it was struck from the rear by a third vehicle. She was able to
anticipate the collision, and although it was minor, she felt it through her
hips and it flung her forward. After exchanging information with the other
driver, she pulled into an adjacent shopping centre parking lot and awaited the
arrival of her spouse. She attended a nearby medical clinic and was examined by
a doctor, who diagnosed a strain of the lower and mid back and prescribed Naproxen.
On March 3, 2009, another doctor at the same clinic prescribed Flexeril and
physiotherapy.

[21]        
Ms. McKay attended the physiotherapy clinic on February 25 and March 2,
2009.

The March 6, 2009 Accident and Subsequent Treatment

[22]        
In this accident, Ms. McKay’s minivan was rear-ended by another minivan,
en route to her classes at TRU, once again while she was stopped in traffic.
The vehicle damage was minor, but Ms. McKay was thrust forward with enough
force to knock her foot off her brake pedal, and a butterfly hair clip on the
back of her head was broken as her head hit the headrest.

[23]        
Ms. McKay immediately attended the same medical clinic, where acute
upper and lower back and neck strains were diagnosed and she was given a
prescription for Tylenol 3. She returned home, but later in the day her mother-in-law
drove her to the hospital. There she was examined for complaints of neck pain
and tingling to both hands and CT imaging was performed, which revealed no
abnormalities of bones, joints or soft tissue. The noted diagnosis was cervical
strain.

[24]        
Ms. McKay testified that, prior to the second and third accidents, she
felt that she was about 75% recovered from the first accident. I note, however,
that she attended the physiotherapist on February 4, 2009, presumably on her
own initiative and at her own expense, and her complaints were of ongoing
tightness in her neck and upper back.

[25]        
She testified that following the third accident on March 6, 2009, she
was put back to the condition that she was in after the first accident, if not
worse. She attended 17 more physiotherapy sessions between the March 2009
accident and June 15, 2009, and she attended eight message therapy sessions
between the March 2009 accident and April 21, 2009. Her complaints recorded by
those treating practitioners generally mirror the complaints recorded in the
aftermath of the March 2008 accident.

[26]        
In August 2009, Dr. Langford referred Ms. McKay to a neurologist for
carpal tunnel studies to investigate the cause of the numbness in her arms and
hands. This was a natural line of enquiry, because Ms. McKay had undergone a
carpal tunnel release on one side in 2003. The consultation report indicated
that the nerve conduction studies were normal, and there was no evidence of
carpal tunnel syndrome.

[27]        
In October 2009, Ms. McKay obtained part-time employment in the apparel
department of a Kamloops Superstore. Although she was still experiencing back
pain, headaches, and numbness in her arms and hands, she was motivated by
financial need. Her starting wage was $8.75 per hour, and she generally worked
15 to 20 hours per week, although she occasionally worked 37 hours in a week. The
average shift was four and a half hours, with an occasional eight-hour shift. Her
job functions included setting up product displays, sales and cleaning up
change rooms.

[28]        
Ms. McKay testified that she sometimes missed work if she had a
particularly bad day with pain, and could not relieve the symptoms with
painkillers. In that event, she was required to advise her employer at least
one hour before her shift started. She said that she kept a record of missed
work on a calendar, but she has misplaced the calendar and she did not provide
an estimate of how much work she has missed.

[29]        
Ms. McKay still works part-time at the Superstore up to 24 hours per
week. She was offered a full-time position in the house wares department in the
fall of 2010, but declined because, she said, it involved more heavy lifting
than the apparel department and longer hours, and she felt that her pain
symptoms precluded her accepting that position. In September 2011, she was
transferred to the position of cashier at her request. That position involves
less lifting, but there is a lot of repetitive movement, which aggravates her
neck and shoulder symptoms. She has also missed shifts as a cashier on account
of pain. Her wage rate increased to $10.95 per hour in August 2012.

[30]        
Ms. McKay testified that she continues to suffer headaches of varying
intensity, episodic numbness in her hands and arms and episodic and varying
neck and shoulder pain. She tries to avoid medication, but occasionally resorts
to anti-inflammatory medication and pain medication such as the Tramadol that
she presently uses as needed. She employs heat and ice packs, lying down and
supports her neck on a pillow, massage and stretching to relieve her symptoms.

[31]        
In describing activities interfered with she lists housework, firewood
preparation and storage, gardening and yard work, joining her children in yard
play, and in their sporting interests such as soccer, volleyball, and
basketball, and her own interest in swimming and crafts. Her mother-in-law,
Mrs. Holm, added to that list fruit picking and processing from eight fruit
trees on their shared property. Ms. McKay’s spouse, Mr. Holm, testified as to
her inability to do the full array of homemaker tasks such as baking and
preparing home-cooked meals. He said that his mother does 99% of the outside
work that Ms. McKay used to do.

The Expert Evidence

Dr. Maryana Apel’s Independent Medical Assessment of May 4, 2009

[32]        
Ms. McKay travelled to Calgary for an independent medical assessment
requested by ICBC, conducted by Dr. Apel, a physiatrist, on May 4, 2009. Dr.
Apel’s report, dated the same day as her examination, included her opinion that
Ms. McKay had probably suffered an aggravation of a pre-existing fibromyalgia
condition. Dr. Apel’s report also stated that Ms. McKay exhibited significant
symptom amplification behaviour which might be due to underlying pre-existing
emotional psychological problems or to secondary gain. Dr. Apel said that the
question as to which of those factors was the explanation should be answered by
a forensic psychologist or psychiatrist. There was no evidence from a
psychologist or a psychiatrist.

[33]        
Dr. Apel’s opinion that Ms. McKay was amplifying her symptoms was
explored thoroughly in cross-examination, and seems to originate primarily from
Dr. Apel’s observation that there was obvious voluntary resistance and guarding
on the part of Ms. McKay when Dr. Apel tested passive ranges of motion of the
neck and upper extremities. Dr. Apel’s observation stands in rather stark
contrast to all the other medical evidence presented.

[34]        
I note that Dr. Wade, rheumatologist, commented in his report, which I
will deal with later, that he found Ms. McKay to be a very straightforward and
honest individual. The physiotherapist and massage therapist’s clinical notes,
of which there are many, make no mention of amplification of pain symptoms in
reporting on range of motion tests. The occupational therapist’s report stated
that Ms. McKay gave full and consistent effort and did not embellish her
symptoms or limitations.

[35]        
I note also that Dr. Apel’s examination took place only two months
following the last accident, while Ms. McKay was still under active regular
physiotherapy treatment.

[36]        
I am unable to rationalize Dr. Apel’s conclusion of pain amplification
with her rather firm diagnosis of fibromyalgia that was based to a large extent
on the patient reporting 16/18 fibromyalgia specific tender points to be
“exquisitely painful”. Dr. Apel was confronted with Dr. Wade’s December 2011
report in which he reported finding no tender points in keeping with
fibromyalgia, and her reply was that fibromyalgia waxes and wanes. She was not
asked why she interpreted slow and guarded movement as amplification on the
range of motion tests, but relied on the patient’s reporting of pain on the
fibromyalgia tender points in diagnosing fibromyalgia.

[37]        
In any event, even if Dr. Apel was correct in observing symptom
amplification on the occasion of her examination of Ms. McKay on May 4, 2009,
that would not affect my impression of Ms. McKay’s reliability as a reporter in
respect of her symptoms and the effect of the injuries on her life. My
impression is that she is a straightforward and honest individual who tends to
understate rather than exaggerate things. In other words, if there was symptom
amplification on that occasion, I would certainly rule out malingering as the
cause.

[38]        
On page 13 of her report, Dr. Apel says the following:

It is the writer’s opinion that
the accident(s) more likely than not played some role in fibromyalgia
aggravation. Nevertheless, it appears that had the accidents not happened the
patient more likely than not would still have developed a fibromyalgia
condition.

[39]        
The first sentence in this passage postulates pre-existing fibromyalgia.
The second sentence seems to presume no pre-existing fibromyalgia, and Dr. Apel
is purporting to negate the unstated, but logical alternative that if
fibromyalgia did not pre-exist, but is present now, it could have been caused
by the accidents. There is absolutely no stated foundation for this fall back
alternative opinion that absent the accidents Ms. McKay would likely have
developed a fibromyalgia condition.

[40]        
Dr. Apel was cross-examined about her opinion of pre-existing
fibromyalgia. She agreed that Ms McKay did not tell her that she had prior
fibromyalgia. She agreed that there was no prior mention of fibromyalgia in the
minimal medical records provided to her, which consisted of Dr. Langford’s
illegible notes up to October 2, 2008, and the physiotherapist’s clinical
records to August 19, 2008. In the end she agreed that her conclusion was based
on the fact that Ms. McKay had "conditions which go together with
fibromyalgia." The conditions that she was referring to are set out in the
following passage from the paragraph immediately preceding the previous quote:

She had fibromyalgia related
complaints including longstanding history of non-specific chest pain and
irritable bowel syndrome, which more frequently than not is consistent with or
can be a predecessor of a fibromyalgia-like condition. In addition, it has been
found that people with significant psychological and emotional problems have
greater incidence of fibromyalgia. Those issues were refused to be discussed by
this patient; hence appropriate information should be sought.

[41]        
I find Dr Apel’s conclusion of pre-existing fibromyalgia to be
speculative and non-persuasive. As Mr. Scordo pointed out in argument, there is
no medical record or evidence to that effect, and the plaintiff was functioning
as a mother and a wife with no apparent limitations and working full-time
outside the home in a physically demanding job. There is some merit in Mr.
Scordo’s argument if Dr. Apel’s diagnosis of fibromyalgia in May 2009 was
correct, it is logical to conclude that the motor vehicle accidents were the
cause of the fibromyalgia.

Dr. Wade’s December 6, 2011 Report

[42]        
Dr. John P. Wade, a rheumatologist, examined Ms. McKay on November 30,
2011 on behalf of plaintiff’s counsel. The latter portion of the covering
letter to his longer report includes the following useful summary of his
findings:

Over the course from March 2009 through to my assessment of
November 30, 2011 she was globally better by a self-estimated 75%.

At the time of my assessment of November 30, 2011 Liz McKay
had symptoms of mechanical neck pain. She specifically had symptoms of right
more than left neck pain on physical examination. These are likely residual
from the initial accident of March 3, 2008 but were aggravated by the lesser
accidents of February 2009 and March 2009.

At the time of my assessment of November 30, 2011 Liz McKay
had symptoms of mild right thoracic outlet syndrome. She had symptoms of
numbness with elevation of the right arm. It is of note that she would often
complain of problems with overarm activity or doing activity with her arms
elevated. It would be my opinion that her right thoracic outlet syndrome is
secondary to her mechanical neck pain. She likely has functional spasm in the
neck resulting in a functional thoracic outlet syndrome of the right upper
extremity.

I note that Liz McKay tends toward hypermobility of her
joints. Individuals that tend to be hypermobile will often have increased soft
tissue or musculoligamentous injuries as a result of trauma.

At the time of my assessment of November 30, 2011 Liz McKay
did not have clinical features to suggest bilateral carpal tunnel syndrome.

At the time of my assessment of November 30, 2011 Liz McKay
did not have joint complaints, sleep disturbance, morning fatigue, or tender
points in keeping with soft tissue rheumatism or fibromyalgia.

It is my opinion that Liz McKay has had residual symptoms of
mechanical neck pain from the initial accident of March 3, 2008. She reports
headaches that are likely muscle tension headaches that are a result of the
soft tissue injuries of the cervical spine.

I would recommend that Liz McKay embark upon further
rehabilitation with a gentle range and strengthening exercise program of the
cervical spine. She would further benefit from thoracic outlet exercises to
minimize the symptoms of thoracic outlet syndrome.

I note that Liz McKay is
currently working on a part-time basis which she enjoys very much. It would be
hoped that with further rehabilitation and improvement of symptoms to the neck
and right thoracic outlet syndrome she would be less symptomatic in the future
with activities of day to day living, recreation and occupation.

Dr. Mosewich’s November 24, 2011 Report

[43]        
Dr. Loland took over as Ms. McKay’s family physician and referred her to
neurologist, Dr. Mosewich, for evaluation of her neck pain and bilateral arm
paresthesias. His report stated the following:

PHYSICAL EXAMINATION

Soft tissue pain was noted in the neck, shoulders, and
scapular regions bilaterally. There were trigger points in multiple areas.
Radial pulses were symmetric. Abduction and external rotation of the arms did
not cause any reduction in the radial pulse and it did not exacerbate her
symptoms.

There were no cranial nerve findings. Strength was normal in
upper and lower extremities, deltoid, biceps, infraspinatus, triceps, wrist
extensors, finger extensors, and intrinsic hand muscles were examined. There
was no atrophy. Upper and lower extremity reflexes were graded at 1+ and
planter responses were downgoing. No sensory findings were noted on a thorough
examination of upper extremities. Gait and balance appeared normal.

ELECTROPHYSIOLOGIC STUDIES

Nerve conduction studies were essentially normal except for a
borderline prolonged left median motor distal latency relative to the left
ulnar motor distal latency. A needle electrode examination was not felt to be
required.

IMPRESSION

Elizabeth has a chronic soft tissue pain disorder affecting
the neck and shoulders. This is associated with chronic headache and bilateral
arm paresthesias. This symptom complex could be called whiplash associated disorder.
Many patients with ongoing post-whiplash pain describe nonspecific paresthesias
in the arms and headache. There is no evidence of a specific compressive
monoeuropathy affecting either upper extremity, and there is no evidence of
brachial plexopathy. There is also no evidence of myslopathy or radiculopathy.
Patients in this clinical setting are often said to have myogenic or
posttramatic thoracic outlet syndrome, but I feel this condition is
overdiagnosed and nonspecific. There is no evidence that she has true
neurogenic-thoracic outlet syndrome as a cause for the arm parathesias.

I tried to be as reassuring as
possible. I mentioned that pain modulators such as gabapentin or tricyclic
antidepressants are often employed in this setting. I would avoid the use of
addicting medications for pain. Regular exercise and physiotherapy are
recommended. I would not recommend any type of surgical intervention. Further investigations
are not required.

Physical Capacity Evaluation by OT
Consulting/Treatment Services Inc. – May 31, 2012 – Excerpt:

In my opinion, Ms. McKay is employable full-time in
occupations within her physical capacity. She has restrictions for performing
some physical work activities, as given below, and will need to select
occupations within her capacity and/or will require accommodation. Therefore,
she is not considered to be competitively employable in a full range of
occupations for which she might otherwise be suited. Depending on the physical
demands of any given job, accommodation may include having the ability to take
micro breaks, having a job with a variety of work activities so that she is
able to change her position and movements rather than performing highly
repetitive work, and having assistance from co-workers. Such accommodation may
require a supportive employer.

Physical activity factor limitations include the following:

1. Strength. Based on results of strength
testing for occasional and frequent lifting. Ms. McKay is restricted to work in
limited strength occupations, or in light strength occupations where it is
known that the demands are at the lower end of the range.

2. Bending/Stooping. Ms. McKay is able to
perform repetitive bending and short periods of bending or stooping
occasionally but is not suited to work in occupations that involve sustained
bending or stooping or short periods of intensive bending. She finds crouching
comfortable, and in some situations she can use this posture to limit the
amount of bending or stooping required when working at lower surfaces.

3. Reaching. She is able to perform
occasional short period of repetitive or sustained reaching but is not suited
to work in occupations where reaching is required frequently or for prolonged
periods. She is restricted from work in occupations that involve intensive
reaching forwards for more than brief periods.

4. Sitting. Ms. McKay’s tolerance to
sitting is within normal limits. However, based on symptoms of neck and upper
shoulder pain, she is probably not suited to work in sedentary occupations that
involve sustained use of a work-intensive posture such as looking down and
working with her hands.

5. Standing. Ms. McKay is able to stand
for extended periods but discomfort with sustained standing in one spot, and if
standing were a key job demand, she would perform best if able to move around.
In some situations, she could us a sit/stand stool so that she could alternate
between sitting and standing, but this is not always feasible.

Vocational
Considerations

At the time of the motor vehicle
accident, Ms. McKay had been working at a saw-sharpening business for a short
period of time, having been a stay-at-home mother before that. She was let go
from her job before she was able to attempt to return to work.

Since 2010, Ms. McKay has been working
for Real Canadian Superstore. She is hired (as are most staff) as a part-time
employee. She works 24 hours per week with shifts of 4 hours, 8 hours or 8.5
hours. Initially she worked in the apparel department, but she had difficulty
with some of the physical demands including lifting boxes of clothing, hanging
merchandise on racks and folding garments on a table. She was also unhappy
working in this department. Ms. McKay has switched to working as a cashier at
the check-out counters, which also includes work at the customer service desk
and in the garden centre. She has less difficulty meeting the physical demands
than she had when working in the apparel department, but she is sore and tired
after 5 hours and finds it difficult to manage working an 8-hour shift which
does not have a lunch break.

In my opinion, based on assessment
findings, Ms. McKay has restrictions for some of the physical demands of her
job working at a check-out. These restrictions include difficulty with
prolonged stationary standing, difficulty handling heavier items and difficulty
with intensive reaching. While she is able to manage in her present part-time
position, which allows her time for rest and recovery between shifts, I
question her ability to work full-time if such work became available to her.

Ms. McKay reported that she wanted to
train as an insurance broker so as to have a job that was more of a career than
her present one and that was less physically demanding. Work of this type would
be a good match to her physical capacity in terms of strength requirements, but
she would need to be able to stand and take breaks to relieve pain from
sustained sitting, and she would also need to ensure that her work station was
set up according to ergonomic principles so as to minimize strain on her neck
and shoulders.

Non-Pecuniary Damages

[44]        
Clearly the cumulative effects of the three accidents in this case have
placed Ms. McKay in a position where she has chronic pain disorder as stated by
Dr. Mosewich, regardless of the lack of consensus as to whether there is possibly
a thoracic outlet syndrome or fibromyalgia in play. No expert has ventured a
specific prognosis as to complete resolution of her symptoms. Dr. Wade holds
out a hope that further rehabilitation with exercises will reduce her symptoms
while participating in daily activities, recreation and occupation. Dr.
Mosewich recommended regular exercise and physiotherapy, but recognized a
continuing need for pain modulating medication. If Dr. Apel’s diagnosis of
fibromyalgia is correct, the plaintiff’s condition will wax and wane, but there
will be no full recovery.

[45]        
The plaintiff has referred me to two cases for comparison of awards;
namely; Bergman v. Standen, 2010 BCSC 1692 in which $75,000 was awarded
for non-pecuniary damages and Narain v. Gill, 2012 BCSC 848, where the
award was $50,000.

[46]        
The defendants have referred me to two cases: Fifi v. Robinson,
2012 BCSC 1378 and Sandher v. Hogg, 2010 BCSC 1152 where the awards were
$42,000 and $40,000 respectively.

[47]        
The impact of the injuries sustained by the plaintiffs in the
defendants’ cases was significantly less serious than this case. For example,
Ms. Fifi, an apprentice cabinet maker, returned to work two weeks following the
accident. The trial judge in that case also had serious concerns about her
credibility which impacted his assessment of her complaints of pain. In Sandher,
the trial judge concluded that there was a realistic prospect for significant
improvement in the foreseeable future, even though she found some chronic pain
would continue for an uncertain period of time.

[48]        
The Narain case involved a relatively inactive single woman
living at her parents’ home, who had a pre-existing history of back pain from
previous accidental injuries for which she had been compensated. As the trial
judge, I found that the post-accident changes in Ms. Narain’s activities were
more related to her psychological symptoms than to her physical disabilities.
The Narain case is reasonably comparable, but there was some
consideration of the unreliability of the plaintiff’s evidence and some failure
to mitigate.

[49]        
Of the cases cited to me, the Bergman case is the most similar to
the present case in terms of the personal situation of the plaintiff. Ms.
Bergman was also a young wife and mother whose ability to function as such was
significantly affected by pain which was found unlikely to significantly
improve. If she followed recommendations for a structured and rigorous
conditioning program and focused on improving her function, the court found
that the impact of the injury on her life would moderate, but not abate
entirely. Those findings are similar to my findings in this case, although I
think it is fair to say that, based on the evidence in this case, Ms. McKay did
not previously share the variety of joint outdoor recreational activities with
her husband as did Ms. Bergman, nor did she previously play a sport at a high
level, as Ms. Bergman did.

[50]        
Considering the cited cases, the individual circumstances in the present
case, and the factors relevant to assessing this head of damages as set out in Stapley
v. Hejslet, 2006 BCCA 34, I assess non-pecuniary damages in the amount of
$65,000.

Past Income Loss

[51]        
The plaintiff has quantified the claim under this head of damages on the
assumption that but for the accident, Ms. McKay would have continued to work at
Hank’s Saw Service up to October 15, 2009, with the exception of the three-month
period that her replacement was laid off for lack of work. The defendants argue
that the job at Hank’s Saw Service was not necessarily a permanent one and
employment there was dependent on market conditions, and in any event, a
replacement was not hired for several months. They also argue that the
plaintiff has not proved that she was terminated because of the accident.

[52]        
Mr. Stankiewicz did testify that he did not rush to replace Ms. McKay,
and that he thought it was a while later that he hired her replacement. He did
not say that it was several months later, however.

[53]        
Mr. Stankiewicz was able to recall that the replacement was laid off for
three months about a year after she started, and then rehired. He professed not
to recall how he handled Ms. McKay’s termination, but I am sure that if she was
terminated for any reason other than her inability to come to work, he would
have remembered that. He said she was performing her job fairly well, so it is
unlikely that he would “let her go” as Ms. McKay recalled it, rather than
temporarily lay her off, if the motivation was an improbable downturn in his
business some three weeks after she was hired, particularly in a situation
where a lay off would obviously have given her an opportunity to recover from
the accident. I am satisfied that but for the first accident, Ms. McKay would
have continued to work full-time on the same basis that her replacement did.

[54]        
The plaintiff has provided (in submissions) detailed tables quantifying
the claim for net income loss after statutory deductions for income tax and
employment insurance premiums from March 4, 2008 to February 13, 2009 based on
a 40-hour week and $12 per hour. The net income loss to February 13, 2009 was
$21,061.30. To be deducted from this sum is the total of TTDs and wage loss
advances paid by ICBC in the amount of $10,471.24. After a three-month gap to
recognize the lay off period of the replacement labourer, the submitted tables
compute the net income loss from May 15, 2009 to October 14, 2009 as $8,502.40.

[55]        
From the commencement of Ms. McKay’s employment at Superstore in
mid-October 2009, counsel for the plaintiff has calculated lost income on the
basis of the 13 hours per week difference between 37 full-time hours and the 24
hours that Ms. McKay usually works. The assumptions in that calculation benefit
the defendants to some degree because there is no inclusion of time lost for
pain-related absences which have undoubtedly occurred, nor of those weeks where
less than 24 hours were scheduled. Most significantly the methodology for this
period of time abandons any presumption that Ms. McKay would have been
continuously employed at Hank’s for 40 hours per week at $12.00 per hour up to
the date of trial. The plaintiff has quantified the income loss since October
15, 2009 at $11,286.94.

[56]        
The total past income loss claimed, in excess of amounts paid for TTDs
and wage loss advances, is $30,379.40.

[57]        
The defendants take the position that the plaintiff’s evidence is
unreliable when she says that she turned down the offer of a full-time position
in the house wares department because she felt she was limited by her pain
symptoms. They say that she is working part-time because that is what she wants
to do.

[58]        
There is no evidence that contradicts the plaintiff’s self-assessment on
this issue. The findings of occupational therapist, Alison Henry, that Ms.
McKay already has restrictions for some of the physical demands of her present
check out job, and she is sore and tired after five hours are consistent with
the plaintiff’s evidence. It must also be remembered that Ms. McKay is a mother
of three children and has not yet regained her full pre-accident form as a
homemaker, and is still performing that role with restrictions.

[59]        
I am satisfied that the restrictions caused by these accidents are the
main reason that she has not been working full-time at the Superstore (or
elsewhere) prior to the trial date. I assess past income loss in the amount of
$30,380.00 in excess of amounts paid.

Loss of Future Earning Capacity

[60]        
The defendants’ position on this head of damages mirrors their position
on past income loss, namely, that I should discount the plaintiff’s evidence of
continuing restrictions as unreliable, and hold that she is just as capable of
earning income as she was before the accidents, albeit with some intermittent
pain.

[61]        
It is clear from my findings in respect of past income loss and the fact
that Ms. McKay’s restrictions did not suddenly resolve themselves at trial,
that there will be a loss of capacity to earn income carried into the future.
It will not be indefinite, because there are retraining options open to Ms.
McKay, such as her stated and partially executed plan to study for
qualification as an insurance clerk that will enable her to work full-time
within her limitations.

[62]        
In my assessment, an award that is fair and reasonable under this head
of damages is $25,000.00

Cost of Future Care

[63]        
I find the recommendations of occupational therapist, Alison Henry, in respect
of an exercise program, a personal trainer for three sessions, and
physiotherapy assessment and prospective sessions to be reasonable and necessary
for the plaintiff’s further rehabilitation. I assess the cost of those services
as $1,326.40, based on the ranges of cost provided by Ms. Henry.

[64]        
As to the non-medical services suggested by Ms. Henry, I am not
persuaded that Ms. McKay’s future condition requires, or that she would
realistically utilize the services of a homemaker, or hired personnel to
perform home or yard maintenance previously performed by her. Prescription
medication costs are estimated at $27 to $58 annually. I estimate the present value
of $40 per year for ten years using a discount rate of 3.5% to be approximately
$333.00.

[65]        
I assess total future care costs at $1,659.40.

Special Expenses

[66]        
These are no longer contested and I award special expenses as claimed in
the amount of $3,192.00. I will leave it to counsel to agree on court order
interest calculations.

Summary of Awards

Costs

[67]        
The plaintiff is entitled to costs unless there are relevant
circumstances unknown to me, in which case costs may be spoken to.

“I.C. Meiklem J.”

MEIKLEM J.