IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130109

Docket: M094391

Registry:
Vancouver

Between:

Sharon
Rozendaal

Plaintiff

And

Jojo
Landingin, Johannes A. Rozendaal
Terry Groenick, and Canuck Towing & Services Ltd.

Defendants

–
and –

Docket: M096044

Registry:
Vancouver

Between:

Sharon
Rozendaal

Plaintiff

And

Hewitt
Chan, Jojo Landingin, and Johannes A. Rozendaal

Defendants

Before:
The Honourable Madam Justice H. Holmes

Reasons for Judgment

INTRODUCTION

[1]            
Sharon Rozendaal claims damages for soft tissue injury to her neck and
shoulder area and resulting cervicogenic headaches as a result of two separate motor
vehicle accidents on October 19, 2007 and February 10, 2008, the second
accident aggravating injuries from the first.

[2]            
In both accidents, Ms. Rozendaal was a passenger in the Honda CRV driven
by her husband Jojo Landingin.  In the first accident, on October 19, 2007, she
was the front passenger, and the car was rear-ended while stopped at the intersection
of Cambie Road and No. 5 Road in Richmond, B.C.  In the second accident,
on February 10, 2008, she was seated in the back of the car, and Mr. Landingin
rear-ended another vehicle on or near Alderbridge Way in Richmond.  The
defendants admit liability for both accidents.

[3]            
In addition to non-pecuniary damages for chronic pain, Ms. Rozendaal
claims damages for a small past wage loss, a significant future loss of earning
capacity, and some costs of future care.  She claims a modest amount of special
damages.

[4]            
The parties disagree about the extent of the injuries attributable to
the accidents, rather than to some other cause.  Ms. Rozendaal says that
the injuries resulted from the accidents, and are still ongoing.  The
defendants say that Ms. Rozendaal’s injuries from the accidents resolved
entirely within two months of the second accident, and that any neck or
shoulder pain and headaches she has experienced since then are properly
attributable to other causes, such as the intense physical demands of her training
as a Licensed Practical Nurse (LPN).

[5]            
The defendants say also that Ms. Rozendaal failed to mitigate her
damages because she did not undertake all of the therapies recommended to her
by her doctors.

THE MAIN ISSUES

[6]            
The parties’ positions and the evidence, which I will discuss below,
give rise to the following main issues:

1.              
whether Ms. Rozendaal’s recent and ongoing symptoms result from the
injuries caused by the accidents, and

2.              
whether Ms. Rozendaal failed to mitigate her loss from the accidents.

[7]            
I will briefly set out some of the facts relating to Ms. Rozendaal’s
claim, before then discussing these main issues in turn.  My findings in
relation to those issues will then guide the determination of Ms. Rozendaal’s
damages.

THE FACTS

General Background

[8]            
Ms. Rozendaal is 28 years of age.  She started a family with Mr. Landingin
while she was finishing high school in Richmond, B.C.  Their first son was born
in August 2002, shortly after Ms. Rozendaal’s graduation from high school,
and their second son was born in August 2006.

[9]            
Physical exercise has always been a main focus of Ms. Rozendaal’s
life.  Both in her childhood and as an adult, she took part in numerous sports
and outdoor activities with her parents, her sister, Mr. Landingin, and
others.  Exercise was both part of a healthy lifestyle, and an enjoyable focus
for time with friends and family.  For significant periods of her life, Ms. Rozendaal’s
activities included running, cycling, swimming, hiking the Grouse Grind
(sometimes several times per week), and working out or learning martial arts at
the gym.

[10]        
After graduating from high school, Ms. Rozendaal furthered her
education as she could, while also (and together with Mr. Landingin)
caring for the children and the household, and supporting the family through
paid employment.  She and Mr. Landingin shared these responsibilities as
best suited their circumstances at the particular time, working around the
employment available to them, and their respective hours of work.  They
continued their active lifestyle by organizing their exercise schedules around
their employment and the care of the children.

[11]        
Between the births of her two sons, Ms. Rozendaal completed a
program of general studies at Kwantlen College as well prerequisites for the
Registered Nurse’s (RN) program, while also running the family household and
looking after their first son.  During that period, Mr. Landingin worked
in two jobs to provide the family’s financial support.

[12]        
 Ms. Rozendaal then took up full-time employment in 2005 as a
receptionist at Exchange a Blade.  She took a maternity leave for the birth of her
second son, during which she took a real estate course through distance
education offered by the UBC Sauder School of Business.  She obtained her realtor’s
license in the spring of 2007.  She worked briefly with the Sutton Group in
Richmond and later with another realty company.

[13]        
In about July 2007, Ms. Rozendaal also took employment as a barista
at Starbucks, where she worked a very early shift so as to be able to share
child care with Mr. Landingin, whose shift at Honda Canada began mid-day.

Previous Accident in 2005

[14]        
Ms. Rozendaal had been injured in a previous motor vehicle accident
in 2005 when her vehicle was rear-ended.  She sustained neck strain and
headaches for several months afterwards.  This accident took place during her
pregnancy with her second son, and her injuries did not prevent her resuming
her usual activities as she recuperated from the birth and lost her baby
weight.

[15]        
Ms. Rozendaal testified that she might have missed a day of work
after the 2005 accident in order to go to a medical appointment, but the
accident otherwise caused no absences.  She could not remember whether she had
treatment for her injuries — she thought possibly physiotherapy — but the
medication options available to her were in any event limited by her
pregnancy.

[16]        
Ms. Rozendaal contends that her injuries from the 2005 accident
were completely resolved within a year, and there is no submission or, I find,
reliable evidence to the contrary.  Mr. Landingin’s sincere but somewhat
contradictory evidence about the duration of those injuries does not change
that conclusion.

[17]        
On the evidence, it is clear that the injuries from the 2005 accident were
of relatively short duration, but left Ms. Rozendaal more vulnerable to
re-injury in the 2007 and 2008 accidents now in issue.

The First Accident, October 2007

[18]        
The first accident, on October 19, 2007, happened when Ms. Rozendaal
and Mr. Landingin were taking the latter to work, with the two children in
their car seats.  The car was rear-ended while it was stopped at the
intersection of No. 5 Road and Cambie Road, by the defendant Mr. Groenink’s
1994 Ford pickup truck, owned by a towing company.

[19]        
Ms. Rozendaal went to a medical clinic that day.  She was given
pain medication for her neck and shoulders and headache, and was advised to
rest and follow up in a week or so.

[20]        
After about a week, Ms. Rozendaal started with Dr. Leong as
her family physician.  She reported neck and shoulder stiffness and pain,
headaches, and difficulty sleeping.  Dr. Leong diagnosed soft tissue
musculoskeletal injuries, gave Ms. Rozendaal some prescription medication,
and recommended physiotherapy

[21]        
Ms. Rozendaal went to about three or four physiotherapy sessions in
November and December 2007.  She testified that the massage components of the
sessions helped her headaches, and she liked the stretching and the hot
compresses.  However, she did not find the electrical machines to be helpful.

[22]        
Ms. Rozendaal did not miss work at either Starbucks or Exchange a
Blade after the first accident, except for medical appointments.  However, at
Starbucks she was put on light duties, so that she could avoid any heavy
lifting.  Ms. Rozendaal continued her real estate work at home as she
could.

[23]        
She testified that her injuries from the accident interfered with her
sleep and limited her recreational activities and her physical activities
around the home.  For example, she had trouble lifting groceries or the children’s
car seats.

Marriage and Honeymoon, November 2007 – early January 2008

[24]        
Ms. Rozendaal and Mr. Landingin married in November 2007, and
went to the Phillipines for a three-week honeymoon without the children,
returning in early January 2008.  It is clear from Ms. Rozendaal’s
evidence that her pain continued during the honeymoon.  Massages were available
and inexpensive, and they helped.

[25]        
After the honeymoon, Ms. Rozendaal resumed work at Starbucks and
continued with her realty work.  She testified, and I accept, that she did the
stretches the physiotherapist had shown her.  She also found relief in hot
compresses and the massages Mr. Landingin gave her.

The Second Accident, February 2008

[26]        
The second accident, on February 10, 2008, took place when Mr. Landingin
rear-ended another car on Alderbridge Way in Richmond.  Ms. Rozendaal was
in the rear seat of the Honda CRV talking on a telephone.  She testified, and I
accept, that the impact was quite significant, causing her to hit her head on
the seat behind her.

[27]        
After the second accident, Ms. Rozendaal’s headaches and neck and
shoulder pain worsened.  She testified that her symptoms from the first
accident had not resolved by this time; indeed, they had not improved at all in
the four months since the first accident.

[28]        
Ms. Rozendaal saw Dr. Leong the day after the second accident,
and was given pain and muscle relaxant medication, which she took until the
prescription ran out.  She was unsure about details, but thought that she
missed work at Starbucks that day in order to see Dr. Leong, as well as another
couple of days.  She continued working light duties at Starbucks and continued
her real estate work as she could manage at home.

[29]        
In a follow-up visit, an on-call doctor replacing Dr. Leong
referred Ms. Rozendaal to physiotherapy, and she attended about two sessions. 
Again, she found the massages helpful for her pain, but did not like the
electrical machines.  Some spa massages helped, as did the massages Mr. Landingin
continued to give her at home.  Also helpful was a shiatsu massage machine her
mother gave her, which Ms. Rosendaal used every day.

After the Second Accident

[30]        
In early 2009, Ms. Rozendaal worked for a period for Shopper’s Drug
Mart as an overnight supervisor and cashier.  This work was not physically
demanding, and Ms. Rozendaal’s injuries posed no difficulty.

[31]        
In late 2009, Ms. Rozendaal left that position for a better-paying
position with Cunningham Lindsey, where she worked in reception and office
administration.  She testified that her neck stiffness and tenderness troubled
her in this work, which required her to sit at a desk all day and to look
downwards for long periods.

[32]        
More generally, Ms. Rozendaal testified that her symptoms from the
accidents continued through 2009, while she worked at Shopper’s and then at
Cunningham Lindsey.  She continued to rely on various forms of massage, as well
pain medication, such as Tylenol and Advil.  She tried to return to her usual
activities, such as jogging and hiking the Grouse Grind, but with limited
success:  she could not manage these and other activities as often or as well
as before, and they left her with pain and headaches afterwards.  She testified
that she did what she could around the house, but could not manage the heavier
tasks.  For example, she could take the children on outings, but she could not
give them baths.

[33]        
In September 2010, Ms. Rozendaal began the Licenced Practical Nurse
training program, a twelve-month program at the time.  She graduated with
impressive results in September 2011.

[34]        
Ms. Rozendaal testified that her intention in taking LPN training
was to apply to transition from that program into the RN program.  Her goal
since childhood has been to qualify and work as an RN:  her mother worked as an
RN, as well as a realtor, and many other family members work in the health
industry.  However, with early parenthood and no viable child care options that
she and Mr. Landingin could afford, Ms. Rozendaal was unable to
embark on the four-year course of full-time studies.  Instead, she first took
the prerequisites for RN training, as I mentioned earlier, and later began LPN
training with a view to then “bridging” into RN training; this approach would abbreviate
the periods of full-time studies and would allow Ms. Rozendaal to take some
paid employment along the way.

[35]        
Unfortunately, the physical demands of the LPN program worsened Ms. Rozendaal’s
symptoms.  Lab work involved, for example, turning patients, or transferring
them from a bed to a wheelchair.  Ms. Rozendaal testified, and I accept,
that she successfully completed the physical tasks, but only with difficulty
because of her neck and shoulder injuries.  In particular, the practicum
components of the program left her exhausted and with headaches and
considerable neck and shoulder pain each day.

[36]        
Ms. Rozendaal testified also that throughout the program, the reading
and studying she needed to do in the evenings bothered her neck and worsened
her headaches.

[37]        
Other evidence confirmed the physical challenges of the LPN training
program and of LPN work itself.  The evidence of classmate Fazella Sharoom made
clear also that Ms. Rozendaal was limited in her ability to cope with
those challenges, despite her best efforts to do so.

[38]        
While I do not doubt Ms. Rozendaal’s account of the physical
difficulties she faced during the LPN program, I do not attribute all of those
difficulties to the injuries from the accidents.  Ms. Sharoom herself was
exhausted at the end of each day during the practicum components of the
program.  She agreed that to then undertake the research that had to be done in
the evenings was extremely difficult, and testified that she depended heavily
on support from family members to help her with the other demands at home.

[39]        
Ms. Rozendaal testified that to transition into the RN program, she
needs to complete 900 hours of work as an LPN (equivalent to approximately one
year of full-time work, according to Robert Carson, labour economist).

[40]        
By the time of the trial, she had applied for numerous LPN positions,
but had not yet obtained one.

[41]        
In the meantime, Ms. Rozendaal has worked in office administration
with Eculine Canada since November 2011.  She testified that she has no
difficulty performing this work, except that extended sessions using her computer
sometimes aggravate her neck and lead to headaches.

1. DID THE ACCIDENTS CAUSE
THE LATER AND ONGOING SYMPTOMS?

[42]        
The defendants contend that Ms. Rozendaal’s injuries from the first
(October 2007) accident largely resolved within three months, and her injuries
from the second (February 2008) accident resolved within two months.  They say
that on the broadest possible view, the injuries thus spanned a period of 6-8
months, between the time of the first accident and two months after the second
accident.

[43]        
The defendants say that evidence that the injuries resolved more quickly
than Ms. Rozendaal contends is found in her failure to pursue the full
recommended course of physiotherapy after each of the accidents.  In November
and December 2007, before her honeymoon, Ms. Rozendaal went to
approximately five of the twelve physiotherapy sessions for which payment
(except $15 per session) had been pre-approved, but did not resume
physiotherapy after her return in January 2008.  After the second accident, she
went to approximately two of the twelve physiotherapy pre-approved sessions in
respect of that accident, but did not continue.

[44]        
The defendants say that Ms. Rozendaal’s failure to resume or
continue physiotherapy after each of the accidents indicates in each case that
by then her symptoms were too mild to make the time and trouble of physiotherapy
worthwhile.

[45]        
On the evidence, I do not agree.  In each case Ms. Rozendaal gave
credible reasons for having discontinued physiotherapy.  For the following
reasons, I do not find that Ms. Rozendaal’s failure to continue
physiotherapy undermines her evidence that her symptoms nonetheless continued.

[46]        
As to physiotherapy after the first accident, Ms. Rozendaal explained
that she discontinued it in order to go on her honeymoon, and that she failed
to resume it on her return for several reasons:  the treatments were
time-consuming and took her away from her children; they were less helpful for
her pain than were her husband’s massages and pain medication; and she in any
event did the stretches the physiotherapist had shown her.

[47]        
As to physiotherapy after the second accident, Ms. Rozendaal gave similar
reasons for discontinuing after two sessions, and said also that approval for
payment depended on the twelve sessions all being taken within a time period
that was unrealistically short in her circumstances.

[48]        
As I will discuss below, Ms. Rozendaal’s decisions to discontinue
physiotherapy may not have been well-informed.  However, I find her given
reasons to be sincere and understandable in her circumstances.  Her failures to
continue physiotherapy do not indicate that her symptoms were no longer
significant in her life.

[49]        
I reach a similar conclusion in relation to the defendants’ submission
about Ms. Rozendaal’s failure to see her family doctor between February
2008 and September 2009.  Also, in the circumstances, N.H. Smith J.’s
well-known observations in Edmonson v. Payer, 2011 BCSC 118 at para. 37,
aff’d 2012 BCCA 114, are particularly apt:  a plaintiff is not obliged to
constantly bother busy doctors with reports that her symptoms and condition have
not changed.

[50]        
The defendants submit further that the evidence concerning the September
2009 visit itself indicates that Mr. Rozendaal’s symptoms had resolved by
that time.  That visit, on September 23, 2009, was to enable Dr. Leong to
complete the ICBC CL19 form in respect of Ms. Rozendaal’s claim. 
According to the notations on the form, Ms. Rozendaal reported no current symptoms,
and Dr. Leong found no signs.

[51]        
However, I accept Ms. Rozendaal’s explanation that she based her
reports to Dr. Leong on her condition on the very day of her visit to Dr. Leong,
and that she was having a good day on September 23, 2009.  This approach is
consistent with the instruction in the form itself which asks, “At the date of
this report list patient’s current subjective complaints”.

[52]        
I note also that the intermittent or “on and off” symptoms Ms. Rozendaal
described is consistent with the pattern Dr. Russell O’Connor,
physiatrist, described as classic for musculoligamentous strain and myofascial
neck pain.

[53]        
Ms. Rozendaal’s next medical visit was on March 13, 2010, for what Ms. Rozendaal
described as a “flare-up’.  Dr. Ying referred her for massage therapy, but
Ms. Rozendaal did not attend because of the cost.

[54]        
The defendants submit that the flare-up had no causal relationship to
the accidents, but on the evidence I do not agree.  No other potential cause is
identified — the LPN program did not begin until September 2010 — and, as I
find, Ms. Rozendaal continued to have symptoms from the accidents, which
waxed and waned with relatively minor physical events in her life.

[55]        
It is true that, as the defendants note, the first accident caused only minimal
damage to the Honda CRV.  The repairs cost only $820.33 gross.  I accept Mr. Groenick’s
evidence that the impact was only a small bump, which caused the Honda to move
slightly, but did not cause his log book to fall off the seat of his truck.

[56]        
However, it does not follow that Ms. Rozendaal is untruthful in
reporting symptoms after that accident that did not quickly resolve.  Rather, I
find Ms. Rozendaal to be sincere and truthful.  Although many of her
longer-term memories are impressions, rather than precise details or sequences,
I find their “gist” to be entirely reliable.

[57]        
Ms. Rozendaal’s account of her symptoms also finds support in the
evidence of Mr. Landingin and her friend Andrea Castro, who each testified
about the effects they noticed on Ms. Rozendaal’s mood and her behaviour
and activities.  Each testified about marked declines in her enthusiasm for and
ability to manage various activities she used to enjoy.

[58]        
There are minor inconsistencies in Ms. Rozendaal’s various
descriptions of the accidents, and between her descriptions and those of other
witnesses.  However, those inconsistencies do not affect my conclusion that Ms. Rozendaal
was injured in the ways she claims, with the effects on her that Mr. Landingin
described.  His account was an unintendedly sad one, and I found it sincere and
reliable.

[59]        
 The defendants submit also that objective indications of mid-back pain,
as contrasted with upper back or neck pain, appeared only after Ms. Rozendaal
began her LPN training.  They submit that much of the worst pain Ms. Rozendaal
now experiences is therefore more likely attributable to that cause, and not to
the accidents.

[60]        
Mid-back pain is not a basis of Ms. Rozendaal’s claim, and Dr. O’Connor’s
observations and findings that Ms. Rozendaal experienced it are largely
irrelevant.  I find no basis in the evidence for a conclusion that the symptoms
Ms. Rozendaal attributes to neck or shoulder areas are properly
attributable to mid-back pain caused during the LPN program.

[61]        
I conclude that the accidents caused the neck and shoulder pain and
headaches Ms. Rozendaal described, which still have not resolved.

2. DID MS. ROZENDAAL
MITIGATE HER LOSS?

[62]        
A plaintiff has an obligation to take all reasonable measures to reduce
his or her damages, including undergoing treatment to alleviate or cure
injuries: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC
1111 at para. 234.

[63]        
Once the plaintiff has proved the defendant’s liability for his or her
injuries, the defendant must prove that the plaintiff acted unreasonably and
that reasonable conduct would have reduced or eliminated the loss.  Whether the
plaintiff acted reasonably is a factual question and it involves a
consideration of all of the circumstances: Gilbert v. Bottle, 2011 BCSC
1389 at para. 202.

[64]        
I discussed above the fact that after each accident Ms. Rozendaal
did not pursue the full course of physiotherapy recommended to her.

[65]        
Also, when Ms. Rozendaal first went to the Stein Medical Clinic on
April 19, 2011 (after the family’s move from Surrey to Vancouver) because of
neck and shoulder pain from the physical activity associated with the move, she
was referred to active rehabilitation.  However, the cost (of at least $50 per
session) was more than she could manage, and she did not pursue the matter
further.  Instead, Ms. Rozendaal began working out with a close friend
Andrea Castro, doing exercises which, I find, she and Ms. Castro believed
approximated active rehabilitation training.  When they began, Ms. Castro
was training for the certification she now holds as a group fitness leader.  Ms. Castro
testified about the sessions with Ms. Rozendaal, and described her
progress as slow but determined and steady.

[66]        
On the medical evidence, I find that Ms. Rozendaal likely could
have improved to a greater extent and more quickly had she undertaken a
focussed course of strengthening and conditioning therapy or training designed
for her particular injuries, such as Dr. O’Connor outlined in his second
report.  The various forms of massage Ms. Rozendaal undertook gave her
relief from her pain, but, as Dr. O’Connor explained, passive therapies did
not help rehabilitate the muscles which, ultimately, were causing that pain.

[67]        
The question is whether Ms. Rozendaal acted unreasonably by failing
to undertake the recommended therapies or programs.  I find that in her
particular personal circumstances, she did not.

[68]        
The only potential mode of strengthening and conditioning recommended to
Ms. Rozendaal early in her treatment was physiotherapy.  She testified
that she found some of its modalities helpful, and others not.  Nothing in the
evidence indicated that the physiotherapy offered to Ms. Rozendaal to her
knowledge included strengthening and conditioning, and that she declined that
particular modality.

[69]        
Active rehabilitation was suggested to Ms. Rozendaal only in April
2011, more than two years after the second accident.  Moreover, its cost was
out of reach for Ms. Rozendaal and her young family.

[70]        
As I find, Ms. Rozendaal’s life circumstances left her unable to
fund any form of ongoing treatment or therapy.   From their early days
together, she and Mr. Landingin have worked extremely hard to educate
themselves for careers and to provide financial support and loving care for
their young family.  It is clear from the evidence that life was not easy for
them.  I have no difficulty accepting that other financial priorities displaced
ongoing physiotherapy or active rehabilitation for Ms. Rozendaal,
particularly since it seemed to her that massages from Mr. Landingin and
exercises she did at home were just as helpful.

[71]        
As I find, Ms. Rozendaal was mistaken in this assessment.  However,
it was only when Dr. O’Connor saw Ms. Rozendaal before preparing his
second report (of January 18, 2012), and asked her to demonstrate the exercises
she had been doing since he had seen her six months earlier, that he realized
that he had not given his instructions specifically enough:  Ms. Rozendaal
was doing light aerobic work and some gentle neck exercises, but no real
strengthening.  Dr. O’Connor testified that because Ms. Rozendaal had
evidently misunderstood his recommendation in the previous report, he described
the recommended conditioning more explicitly in the second report.

[72]        
The law does not require perfection in the pursuit of rehabilitation. 
It requires instead that a plaintiff make efforts which are reasonable and
sincere in the plaintiff’s own personal circumstances: Gilbert at para. 203.

[73]        
On this basis, in Tsalamandris v. MacDonald, 2011 BCSC 1138 at paras. 227-30,
varied on other grounds 2012 BCCA 239, the Court found no failure to mitigate
where the plaintiff was unable to pursue the recommended treatments because of
life circumstances that included a pregnancy, the care of small children at
home, and her inability to perform the recommended exercises properly without
the help of a personal trainer.

[74]        
I find similarly that Ms. Rozendaal’s efforts at rehabilitation
were reasonable and sincere in her own personal circumstances.

[75]        
Given Ms. Rozendaal’s situation, I also find no unreasonable
failure to mitigate in her failure to challenge her insurer to extend the
period within which physiotherapy was approved, or to investigate whether she
had group coverage for physiotherapy and massage therapy through her employment
with Cunningham Lindsey.

[76]        
Ms. Rozendaal did not fail to mitigate her damages.

3. WHAT DAMAGES SHOULD BE
AWARDED?

(a) Non-Pecuniary Damages

[77]        
Non-pecuniary damages try to compensate a plaintiff for the pain and
suffering and loss of enjoyment of life associated with the injury.  These
damages are not restitution, which is impossible for a non-pecuniary loss, but
attempt to make up through money for a loss which cannot be replaced in any
direct way.  They provide “substitute pleasures and amenities to make the life
of the injured person more bearable”: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 97 (S.C.), McLachlin J. (as she then was).

[78]        
A court assessing non-pecuniary damages must consider the individual
situation of the plaintiff, and the extent to which money can provide solace: Milina
at para. 262.  In Stapley v. Hejslet, 2006 BCCA 34, Kirkpatrick
J.A. at para. 46 set out the factors that a court should consider:

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

I would add the following factors, although they may arguably
be subsumed in the above list:

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

(h)        impairment
of physical and mental abilities;

(i)         loss
of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[79]        
The compensation awarded should be fair to all parties.  Awards made in
comparable cases provide a rough but helpful guide for the measure of fairness,
although each case depends on its own unique facts: Trites v. Penner,
2010 BCSC 882 at paras. 188-189.

[80]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his injuries and
their consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[81]        
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed by McEachern C.J.S.C. in Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.).  In referring to an earlier decision, he said,
at 399:

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved.  I
then said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer.  But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[82]        
Ms. Rozendaal claims non-pecuniary damages for chronic pain in her
neck, shoulders, and upper back, and associated headaches.

[83]        
I find on the evidence that before the accidents Ms. Rozendaal was
an extremely active and buoyant person, much of whose life revolved around
physical exercise, alone or with others.  She is now often moody and irritable,
and lacks the energy for the activities she used to enjoy.  This has affected
almost all aspects of her daily life, whether individual, family, or social.  She
leads a much more cautious and sedentary lifestyle, with far less joie de
vivre.

[84]        
Ms. Rozendaal relies on cases where non-pecuniary damages were
awarded in a range between $40,000 and $60,000:

·      
Sharpe v. Tidey, 2009 BCSC 948;

·      
Perry v. Ismail, 2012 BCSC 123;

·      
Cabral v. Brice, 2010 BCSC 197;

·      
Wiebe v. Neal, 2004 BCSC 984; and

·      
Shearsmith v. Houdek, 2008 BCSC 997.

[85]        
Ms. Rozendaal submits that an award of $50,000 is appropriate in
her case.

[86]        
The defendants submit that the award for non-pecuniary damages should be
much smaller.  They refer to cases where non-pecuniary damages fell within a
range between about $15,000 and $20,000:

·      
Anderson v. Cejka, 2010 BCSC 772;

·      
Sarowa v. Gill, 2010 BCSC 873; and

·      
Laxdal v. Robbins, 2009 BCSC 1074.

[87]        
In Anderson, the 53-year old plaintiff’s family physician
described the injuries as “non-limiting in terms of his lifestyle” (para. 39). 
In Sarowa, the plaintiff had a substantial chance of recovering (from
mild strain to the neck and lower back) within six months, and was almost
certain to recover within a year.  The 54-year old plaintiff in Laxdal substantially
recovered within about seven months of the accident.

[88]        
However, in those cases the injuries resolved much more quickly than I
have found Ms. Rozendaal’s injuries resolved.

[89]        
In my view, the appropriate award of non-pecuniary damages for Ms. Rozendaal
is $40,000.

(b) Past Wage Loss

[90]        
Ms. Rozendaal claims damages representing missed wages for two
days.  Her recollection was imprecise about dates, but she recalled in general
terms that after the first accident, she missed one day’s work from her barista
job at Starbucks in order to attend a medical appointment, and, she estimated,
two or three days’ work after the second accident for reasons related to it.

[91]        
The defendants submit that the evidence does not sufficiently prove this
loss, but I do not agree.  I accept Ms. Rozendaal’s evidence, imprecise as
to dates though it is, that she missed several days’ work because of the
accidents.  Starbucks’ employee attendance records and Dr. Kwang’s
clinical records also indicate more specifically that Ms. Rozendaal did
not work on October 31, 2007, the day she saw Dr. Leong, or on February
11, 2008, the day after the second accident.

[92]        
Ms. Rozendaal’s claim for two days’ gross earnings of $101 in total
is proven.  Damages for past wage loss are awarded in that amount.

(c) Loss of Future Earning
Capacity

[93]        
A claim for loss of future earning capacity raises two key questions:  first,
has the plaintiff’s earning capacity been impaired by his or her injuries; and
second, if it has, what compensation should be awarded for the financial harm
that will accrue over time as a result?  As far as possible, the plaintiff
should be put in the position he or she would have been in but for the injuries
caused by the defendant’s negligence: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106 at para. 185.

[94]        
The essential task of the Court is to compare the likely future of the
plaintiff’s working life had the accident not happened with the likely future given
the accident.  This is a matter of judgment based on the evidence; it is not a
purely mathematical calculation.  The appropriate means of assessment will
vary from case to case.  See: Gregory v. Insurance Corp. of British
Columbia, 2011 BCCA 144 at para. 32; Rosvold v. Dunlop, 2001
BCCA 1 at para. 18; Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.); Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.); and Pett v. Pett, 2009 BCCA 232.

[95]        
Low J.A. summarized the principles that apply in assessing loss of
future earning capacity in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27.  A plaintiff is entitled to compensation
for real and substantial possibilities of loss, which are to be quantified by
estimating the chance of the loss occurring: Athey v. Leonati, supra, at
para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135
(C.A.).  The valuation of the loss of earning capacity may involve a comparison
of what the plaintiff would probably have earned but for the accident with what
he will probably earn in his injured condition: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the
inquiry; the overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v.
Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of
the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.).  Finally, since the course of future events is unknown, allowance must
be made for the contingency that the assumptions upon which the award is based
may prove to be wrong: Milina v. Bartsch, supra, at 79.

[96]        
The defendants submit that Ms. Rozendaal has provided no evidence
of a real and substantial possibility that she will suffer actual income loss
in the future.  She is able to work in her chosen field, subject only to the
challenges of the labour market, and also to some restrictions on heavy
lifting.  The defendants submit that no evidence suggests that the restrictions
on heavy lifting will likely result in monetary loss.  Indeed, Ms. Rozendaal
succeeded admirably in the LPN program, obtaining a perceptorship on a highly
sought-after ward.

[97]        
As I view the evidence, there is a real and substantial possibility that
Ms. Rozendaal’s ability to earn income as an LPN and in other fields of
work will be limited by her injuries, by reason of the physical challenges of,
specifically, LPN work, and the strain Ms. Rozendaal experiences in sedentary
office work, particularly at a computer.

[98]        
I conclude that Ms. Rozendaal will for the most part suffer through
her symptoms in order to achieve her dream of, ultimately, working as an RN. 
She also feels a heavy responsibility to support her family as best she can.

[99]        
In my view, the possibility of Ms. Rozendaal giving up an
advantageous employment offer — whether in nursing or in another field — is
slight, because of her natural determination to succeed as an individual and as
a responsible spouse and parent.  However, there is a real and substantial
possibility that Ms. Rozendaal’s physical challenges will make her less
attractive to prospective employers, delaying her entry into a competitive
market.  Ms. Rozendaal performed extremely well in the LPN program. 
However, Ms. Sharoom noticed that she required help with physical tasks,
and testified that the work was therefore harder for her classmates.

[100]     Ms. Rozendaal’s
damages for loss of future capacity should reflect the present value to her of
one year’s earnings as an LPN.  On the basis of Mr. Carson’s evidence,
that value would be $49,720.

[101]     The award for
loss of future earning capacity will therefore be $50,000.

(d) Cost of Future Care

[102]     A
plaintiff is entitled to compensation for the costs of future care necessary to
restore her to her pre-accident condition in so far as that is possible.  On
the evidence, the costs must be both medically justified and reasonable:  Milina at 84.  They must also be costs which the
plaintiff is likely to incur.  Costs for items or services which the plaintiff
has not used in the past may be inappropriate to include in
the future care award:  Izony v. Weidlich, 2006 BCSC 1315 at
para. 74.

[103]     According
to the evidence of Dr. O’Connor, Ms. Rozendaal will require strength
and conditioning training to improve her function.  Although Ms. Rozendaal
has performed exercises on her own, access to a personal trainer or
physiotherapist will allow her to fully benefit from an exercise program.  Ms. Rozendaal
testified that such services, in her experience, cost approximately $50-65 per
hour.

[104]     Dr. O’Connor
also provided evidence that, despite any improvement in function, Ms. Rozendaal
will likely be left with pain.  As a result, Ms. Rozendaal requests
compensation for over the counter pain medication and occasional sessions with
a registered massage therapist for pain management.

[105]     Altogether,
Ms. Rozendaal claims damages of $7,500 in this category, and I award that
amount.

(e) Special Damages

[106]     Ms. Rozendaal
claims special damages totalling $790.01.  Of that amount, $114.37 is for drug
purchases and $675.64 is for various forms of therapy, including physiotherapy ($160),
massage therapy ($64.96), and yoga ($450.68).

[107]     I agree
with the defendants that the award should not reflect Ms. Rozendaal’s expenses
for yoga.  Ms. Rozendaal participated in yoga before the accidents, and, I
find, would have continued whether or not the accidents had occurred.

[108]     The
defendants also take issue with some expenses for physiotherapy and massage
therapy, which they say Ms. Rozendaal could have recovered through her
extended health group plan.  However, the evidence does not establish that such
coverage was available to her.

[109]     The award for
special damage will be in the amount of $340, to reflect all of the claimed
expenses except those for yoga.

SUMMARY OF DAMAGES AWARDED

[110]     Counsel
agree that the injuries from the two accidents are indivisible, and should be
compensated to the extent appropriate by single awards under each head of
damages: Bradley v. Groves, 2010 BCCA 361 at paras. 32-34.

[111]     On that
basis, Ms. Rozendaal’s damages are as follows:

_____________________________________
The Honourable Madam Justice H. Holmes