IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130110

Docket: M62973

Registry:
Nanaimo

Between:

Patricia
Stovel

Plaintiff

And:

Alexandra
Paul, David John Paul and Tina Annette Paul

Defendants

Before:
The Honourable Mr. Justice Johnston

Reasons for Judgment

[1]            
The plaintiff, Patricia Stovel, was injured in a motor vehicle collision
in Nanaimo, B.C., on September 2, 2009. The defendants admit liability for the
accident and further admit that Ms. Stovel sustained some injury, loss and
damage as a result of the accident. At issue is the extent of those injuries
the accident caused to Ms. Stovel, or to which it contributed by way of
aggravating pre-existing conditions, and the quantum of damages to be awarded
to Ms. Stovel in the circumstances.

Background

[2]            
Ms. Stovel is 64 years old. She taught for 25 years in Manitoba, largely
in the special needs field, before retiring and moving to British Columbia in
1996.

[3]            
Ms. Stovel is not a good historian, in the sense that she did not relate
her background in a chronology that was easy to follow: instead, I have
reconstructed her pre-accident history from what she has said in evidence. I do
not fault her for this, and in particular, I do not draw any inference adverse
to Ms. Stovel as a result of her inadequacies as an historian.

[4]            
Ms. Stovel was married when she was 22, in about 1970. Her husband was
in an accident while riding his bicycle, I understand not many years into the
marriage. He went to hospital, and was discharged with medications. He went
home, where he went to bed and Ms. Stovel fell asleep on the couch. Ms. Stovel
found her husband dead in the bed the next morning.

[5]            
The significance of this is that Ms. Stovel, who had not been a drinker
until then, turned to drink and became an alcoholic. She continued to teach:
she says she was a binge drinker and that if she were affected by alcohol when
she was supposed to teach, others would cover for her.

[6]            
Ms. Stovel joined Alcoholics Anonymous in 1981, and stopped drinking for
about 10 years. In the early 1990’s, she came to doubt that she had been an
alcoholic, and after discussing things with some medical people, she resumed
social drinking. By early 1996, she realized she was drinking alone, resumed
her contact with Alcoholics Anonymous, and moved to British Columbia. She has
not consumed alcohol since. Alcoholics Anonymous, and the friends she has made
there, are an important part of her life.

[7]            
Ms. Stovel was involved in a number of minor motor vehicle collisions in
Manitoba in which she says she was not injured. She describes them as minor
bumps usually caused when another vehicle would slide into her vehicle on icy
roads.

[8]            
Ms. Stovel said that the exception to this was a 1991 accident in which
she sustained some injury. The nature and extent of the injuries resulting from
that accident were not explored in any detail in the evidence.

[9]            
Additionally, Ms. Stovel had some form of surgery to her right knee in
the 1980s, caused by either injuries or wear and tear, stemming from athletic
and recreational activities as a youth and young adult.

[10]        
Although Ms. Stovel had retired from teaching in Manitoba, when she
moved to British Columbia she obtained employment at the Chemainus Native
College and worked there until 1998 or 1999.

[11]        
In 1998 Ms. Stovel was in a serious head-on collision, as a result of
which she had injuries mostly to her right neck and shoulder. For a time she
had little or no use of her right arm. After that accident Ms. Stovel developed
sciatica in her right leg. She used a cane and took prescribed morphine for
pain for about seven years after the 1998 accident.

[12]        
Ms. Stovel says that she had hypertension and tended to anxiety before
the 1998 accident but was not receiving any active treatment for either
condition at the time of that accident. She describes a very active lifestyle
in Manitoba involving long canoe trips, camping, cross-country skiing and scuba
diving. When she arrived in British Columbia in 1996 she immediately joined
Alcoholics Anonymous, bought an ocean kayak, and took up camping, largely on
Vancouver Island. She had brought her 17 foot canoe with her when she moved from
Manitoba.

[13]        
Ms. Stovel bought a house with a large yard when she arrived in British
Columbia. The house has a self-contained suite plus an additional bedroom
downstairs, both of which she has rented to generate income to help with her
mortgage payments.

[14]        
After the 1998 accident, Ms. Stovel said that she had some depression
because her injuries significantly reduced her activities and altered her
lifestyle. She acknowledges some anxiety as well and says she was prescribed
Celexa for these conditions. In addition, she bought a TENS machine which she
used daily for pain relief for about seven years, Obus Forme supports for
sitting, both at home and in her car, a stationary bicycle which she used
daily, and an exercise ball. She used all of these items until 2007 or 2008
when she felt she no longer needed them and put them away.

[15]        
Following the 1998 accident, Ms. Stovel had paid homemaking assistance
for about three years to help her with laundry, dishes, housekeeping, vacuuming
and some cooking. When that ended, she got help from friends for heavier tasks
such as the laundry.

[16]        
For three years after her 1998 accident, Ms. Stovel did not go out much
as she was having trouble walking. Alcoholics Anonymous meetings were held at
her home for that reason.

[17]        
Ms. Stovel used a cane, gradually reducing her reliance upon it, until
she was using it only when she went outside for longer walks, and in 2006 she
stopped using the cane entirely. Ms. Stovel hired people to do her outside yard
work after the 1998 accident and did not resume taking care of her yard herself
until somewhere around 2006 or 2007.

[18]        
Although she was not fully recovered by 2006, Ms. Stovel was
substantially recovered, enough that she was no longer using the equipment that
she had used for exercise, pain control, etc., and had resumed travelling. In
2006 Ms. Stovel went to Ontario to visit a friend. The friend was driving the
two of them to a restaurant when the friend fell asleep at the wheel and
drifted into a ditch. The car hit a rock and flipped end for end. Both Ms.
Stovel and her friend went to the hospital but Ms. Stovel says that she
suffered very little injury in that accident, beyond some sore muscles. I
accept that evidence in the absence of any significant contradiction.

[19]        
After the 1998 accident, Ms. Stovel sold her sea kayak. About three
years after the 1998 accident, she replaced the sea kayak with a smaller,
lighter kayak and resumed kayaking at some point prior to the motor vehicle
accident in September 2009, although she started with smaller kayaking trips in
calmer waters.

[20]        
After the 1998 accident, and as she recovered from her injuries, Ms.
Stovel gradually took on more responsibilities with Alcoholics Anonymous. In
2006 or 2007 she took on the position of alternate general services
representative, and eventually she became a general services representative.
This required her to go to district meetings and assemblies. Some of these were
quite some distance away from her home, and required her to travel long days,
usually in a car pool arrangement. She said some of the meetings would last for
up to 10 hours, so that both the car journey to and from the meeting and the
meeting itself would require prolonged sitting.

[21]        
Ms. Stovel credits her involvement in Alcoholics Anonymous with helping
her to overcome the effects of the injuries from the 1998 accident, saying that
its approach to alcoholism – taking recovery one hour at a time, one day at a
time – translated well to recovering from her injuries, and the support of
fellow members was of great assistance.

[22]        
Immediately before the 2009 accident, Ms. Stovel said that she had
ongoing right neck and shoulder problems that were occasionally very sore, and
right-sided sciatica. She agrees that she had a tendency toward anxiety but
says that it was well controlled by Celexa. She attended a chiropractor a
couple times a year for what she called “tune-ups”. She denies any hearing or
balance problems prior to the 2009 accident, but when cross-examined on the
basis of her physician’s clinical records, she recalled that she had some
ringing in her ears that was successfully treated by a manipulation of her temporal
mandibular joint by her dentist, and that she had some dizziness when she had
bad sinusitis, for which she was treated surgically. Both conditions, she said,
were temporary and not recurring.

[23]        
Ms. Stovel said that just before the 2009 accident she was doing all of
her own housework, yard work, was camping, hiking, and kayaking, although not
to the degree she had before the 1998 accident. Prior to this accident, Ms.
Stovel’s social life was centered largely, although not exclusively, around her
Alcoholics Anonymous friends.

Accident

[24]        
On September 2, 2009, Ms. Stovel was driving her car when it was hit
broadside by the defendant, Alexandra Paul. She had no warning of the impending
collision and recalls being thrown back and forth inside her vehicle and
watching it travel toward a pole. Ms. Stovel’s car was written off as a result
of the collision.

[25]        
Immediately after the accident, Ms. Stovel had a bleeding finger and was
shaking. She says she felt “woozy”. She also realized when the ambulance
arrived that she could not hear the attendant clearly when the attendant was on
her right side; he sounded muffled to her.

[26]        
Ms. Stovel was taken to hospital where she was x-rayed and her lacerated
finger was treated and she was released.

[27]        
Ms. Stovel had been expecting a house guest to arrive the day of the
accident, to stay with her for four days. She arranged for her friend, the
witness Ms. Faux to pick up the house guest, who then stayed with her for 14
days because Ms. Stovel needed help in the immediate post-accident period. Ms.
Stovel said that she was very emotionally labile after the accident, she was
anxious, she had trouble thinking straight, and would burst into tears. She
continued to feel shaky. Her right neck and shoulder pain was increased, and
she had new pain on the left side of her neck and shoulder. The pain on both
sides went into her back. Ms. Stovel had some bruising on her chest, right hip
and right ankle that resolved in three weeks. The nail fell out of her injured
finger and it took two or three months to grow back.

[28]        
Ms. Stovel also had a headache following the accident.

[29]        
The hearing impairment Ms. Stovel had noted immediately after the
accident continued and as well she developed a tinnitus in her right ear. She
described this as a high pitched constant noise.

[30]        
Ms. Stovel says that, sometimes while walking, she notices that her
balance is not good, she sways and does not feel steady and has to hold onto
something to steady herself. She has fallen three times since the accident, the
last time in 2012 when she suffered a minor injury to her right hand.

[31]        
For the first two months after the accident, Ms. Stovel was too afraid
to drive. She describes this as post-traumatic stress, although there has not
been a formal diagnosis of a post-traumatic stress disorder put in evidence. In
any event, Ms. Stovel had counselling recommended by a friend and arranged
further counselling through the Mental Health and Addictions office. She had
eight sessions of individual counselling, then six weeks of group counselling.
By the time of the group counselling, which was suggested to her by a
psychiatrist, she says she was able to drive herself. She has put in evidence a
certificate of completion for that group counselling dated December 16, 2009.

[32]        
Ms. Stovel also availed herself of the assistance of her Alcoholics
Anonymous group where she says she received much support.

[33]        
The defendants admit that the accident caused the plaintiff some hearing
loss, some tinnitus, and some balance difficulties. They say the hearing loss
and tinnitus are largely ameliorated by a hearing aid and they accept that the
cost of the hearing aid and replacement batteries is properly an item of loss
for which they should compensate the plaintiff. Ms. Stovel says the hearing aid
is a bit of a nuisance in that in public, such as a restaurant or meeting
situation, the hearing aid picks up background noises and makes things sound
“tinny”, and that when she wants to converse with one person in such
surroundings, she has to turn down the hearing aid and lean in to hear what is being
said. She finds that she is frequently turning the hearing aid up or down.

[34]        
Ms. Stovel acknowledges that she always had some background level of
anxiety that was, she says, well controlled by Celexa before the accident.
Dr. Carruthers, her family physician, does not entirely agree and says
that from time to time Ms. Stovel’s anxiety would spike, sometimes in relation
to a change in various medications.

[35]        
This requires a bit of elaboration. Ms. Stovel is intolerant to many
medications and from her point of view, when she is told to take a medication
which she does not tolerate well, it produces anxiety. There is little or no
medical support for Ms. Stovel’s belief that elevation in her anxiety
levels is a direct result of any particular medication she has been prescribed,
but her medical history suggests that at least some of the increases in her
anxiety correspond either to beginning a new drug or stopping a drug, with
perhaps an emotional response to the side effects of either starting a new drug
or withdrawing from its use.

[36]        
In any event, it appears that since the September 2009 accident, Ms.
Stovel has increased her dosage of Celexa by adding to the one 20 mg pill she
was taking each morning a further one-half of a 20 mg pill each night.
Additionally, prior to this accident, she was taking an anti-spasmodic
medication at night to control muscle spasms when she lay down. That dosage has
doubled since this accident.

[37]        
After the 2009 accident, Ms. Stovel got out the equipment she had put
away following her 1998 accident, including the TENS machine, the exercise
bicycle, her exercise ball, a Shiatsu machine and various cushions. She had to
replace the pads and leads on the TENS machine because they had deteriorated,
and now uses it when she travels or has to sit for longer periods in a cramped
position. She has resumed using the exercise bicycle, exercise ball, a Thera-Band
and other items to stretch her muscles and get exercise, all she says as a
result of her accident injuries.

[38]        
Ms. Stovel says she has been unable to do her heavier yard work since
the September 2009 accident. She is unable to kneel down, not so much because
of any injury to her knees but because the position requires her to extend her
neck to see what she is doing and she finds this quite uncomfortable. As well,
she is not able to do the heavier work such as stacking firewood or turning
soil in her garden bed.

[39]        
Much of this outside work has been done by various tenants since the
2009 accident. Some of them have been compensated through reduction in rent,
which has been more convenient for the tenants because one or more of them have
been unemployed from time to time, and preferred rent reduction to payment. One
of the tenants was paid cash. Ms. Stovel’s current tenant will not accept
payment because she says he enjoys the work and wants the yard to look nice
when he brings his children home on access visits.

[40]        
Inside the house, Ms. Stovel has modified her housekeeping so that she
uses a lighter vacuum instead of the heavier one she used to use for the carpeted
areas of the home. She no longer washes windows, and fairly frequently gets
some cooking help from one of her tenants, Mr. Garrett. Additionally, she finds
she is unable to move heavier pieces of furniture to clean underneath them and
needs some help doing that.

[41]        
Ms. Stovel has curtailed her recreational activities. Where before this
accident she would hike trails of moderate difficulty, she now finds that she
has to stay on flat and level ground. She is not able to walk as far nor for as
long as she did before this accident. She has arranged camping trips since the
2009 accident but has cancelled on each occasion because she has not felt up to
it because of her injuries. She acknowledges that during the summer of 2012
there were other problems in her life involving the health of family members
that also would have prevented camping in any event.

[42]        
Ms. Stovel does not go out as much anymore, and has reduced her shopping
and other pleasure excursions she says because of pain. She has given up her
position as general service representative for the Alcoholics Anonymous group
because she could no longer tolerate the travelling or sitting through long
meetings. She has replaced that position with another position in the group
that does not require travel or sitting long periods.

[43]        
Ms. Stovel had taken up stained glass work prior to the 2009 accident
and finds she cannot do it anymore because she cannot apply the pressure
necessary to score the glass or the strength necessary to snap it once it is
scored. She has replaced this activity with water colour painting.

[44]        
Ms. Stovel estimates that her condition reached a plateau some time in the
middle of 2010 and while she now has good days and bad days, her condition is
generally static.

[45]        
Ms. Stovel acknowledges that at least some of her difficulties with
sitting for prolonged periods of time are attributable to her pre-accident
sciatic pain.

[46]        
In his evidence at trial, Dr. Carruthers testified that x-rays taken of
the plaintiff’s neck on September 2, 2009, showed existing arthritic or
degenerative changes unrelated to the accident. When compared to x-rays taken a
year later, these changes did not appear to be any worse. Dr. Carruthers says
that, whatever the state of Ms. Stovel’s degeneration was on the day of the
accident, she had not complained of any symptoms which he attributes to those
degenerative changes prior to the September 2, 2009, accident. He agreed that,
by its nature, arthritis or degeneration is a progressive condition, likely to
change over time and while it might be reasonable to suppose that Ms. Stovel
could eventually have had symptoms in her neck caused by her degenerative condition,
he was unable to say when that might have occurred had the accident not
intervened.

[47]        
Dr. Carruthers generally corroborated Ms. Stovel’s evidence that her
anxiety was under control prior to the September 2, 2009, accident. He did not
think that increases in her anxiety since the accident were attributable to
medications prescribed for her but was more inclined to the view that any
variation in the symptoms for which the medicines were required resulting from
changes in medications might have increased Ms. Stovel’s anxiety.

[48]        
In the second of his two written opinions, Dr. Carruthers states:

I think that in the normal course of recovery from a whiplash
injury to a healthy neck, soft tissue pain would usually improve over the
course of months or years.

Degenerative arthritic changes however, do not typically
improve over time, but rather worsen over time.

I think there is a lot of evidence that major whiplash
injuries are not good for the neck or spine and, statistically, many patients
are left with significant ongoing pain and disability.

I cannot determine, with any
certainty, what this patient’s neck and back health would be today if she had
not been involved in a motor vehicle accident in September 2009. I think there
is a probability that she would be significantly better than she is at the
present time if the accident had not occurred.

[49]        
Elsewhere in that report Dr. Carruthers states that the accident “…
likely aggravated a tendency to chronic anxiety. I believe her chronic pain
symptoms may be a significant trigger to her ongoing anxiety.” Dr. Carruthers’ opinion
is that the acute anxiety state Ms. Stovel experienced following the accident
was directly related to psychological trauma in the accident.

[50]        
Dr. Carruthers’ diagnoses as of July 2012 included:

1.         Chronic soft tissue pain in the posterior neck and
upper and low back.

2.         Chronic
recurring headaches, which are primarily of a muscle contraction pattern and do
not suggest classic migraine.

3.         Acute
severe Anxiety State following her accident, which now seems to be reasonably
well controlled but requiring ongoing medication. Diagnosis:  probable Chronic
Generalized Anxiety Disorder.

4.         As of
September 2, 2009 and October 12, 2010, she had evidence of degenerative facet
joint changes at C2-3 as well as minimal degenerative disc disease seen
extending from C3-C4 to C6‑7. No significant bony foraminal narrowing was
seen. As of August 11, 1998, she had “Slight facet OA noted in upper
cervical spine”.

5.         Moderately severe sensorineural
hearing loss in the right ear with associated right-sided tinnitus, now using a
hearing aid. Dr. Noel has given a detailed otolaryngology opinion.

[51]        
Medical opinions from Dr. Noel and Dr. David, both specialists in
otology and neurotology, confirm and support the admission from the defendants
that the accident caused the plaintiff hearing loss, tinnitus, and, according
to Dr. David, difficulties with balance. Dr. David characterized the
right-sided hearing loss as mild to moderately severe and Dr. Noel has said
that the plaintiff will need to replace her hearing aid approximately every
five years.

Analysis

[52]        
A defendant is only liable for injuries to another that he or she
caused. The general principles for causation are discussed in Athey v.
Leonati, [1996] 3 S.C.R. 458, and recently re-affirmed in Clements v.
Clements, 2012 SCC 32, 346 D.L.R. (4th) 577. The plaintiff must prove that
the defendant’s negligence caused or contributed to his or her injuries (Athey
para. 16). The test is whether the plaintiff’s injuries would not have occurred
“but for” the defendant’s negligence (Athey para. 14). This test is
not to be applied too rigidly. It is a practical question of fact, which may be
answered by ordinary common sense and does not require scientific precision (Athey
para. 16).

[53]        
It is not necessary for the plaintiff to show that the defendant’s
negligent conduct was the sole cause of the injury (Athey para. 17). It
is sufficient to show that the defendant was part of the cause. The Court held
in Athey: “There is no basis for a reduction of liability because of the
existence of other preconditions: defendants remain liable for all injuries
caused or contributed to by their negligence” (para. 17).

[54]        
On the evidence, I conclude that the accident caused the plaintiff’s
hearing loss as admitted by the defendants, and tinnitus, as well as
difficulties with her balance. I further conclude that a pre-existing but asymptomatic
condition of arthritic degeneration in the plaintiff’s neck was made
symptomatic by the injuries in this September 2009 accident.

[55]        
I conclude that the plaintiff also had suffered aggravation of
pre-existing soft tissue weakness to the right side of her neck and a new soft
tissue injury to the left side of her neck, left shoulder and upper back.

[56]        
The plaintiff further suffered a split to the skin of her middle finger
on her right hand that resolved in three months and minor bruising to her chest
and hip which resolved in about three weeks.

[57]        
I find that the plaintiff had a predisposition to anxiety that was
symptomatic from time to time prior to the 2009 accident but was well
controlled prior to the accident. That anxiety condition was significantly
aggravated by the accident and that aggravation continued for some months
afterward but was almost back to its pre-accident level by six months after the
accident. To the extent that it remains somewhat elevated above the
pre-accident anxiety levels, it is successfully managed by a slight increase in
the dosage by Celexa.

[58]        
The accident and the injuries have impaired the plaintiff’s enjoyment of
life, reduced the recreational and leisure activities in which she formerly
engaged, but, perhaps most significantly, have impaired to some extent what I
find was a central part of the plaintiff’s social interactions and that is her
involvement in Alcoholics Anonymous. Alcoholics Anonymous has been very
important to the plaintiff since she emerged from alcoholism years ago, and
thus this impairment is perhaps more significant than it might otherwise have
been.

[59]        
There has been no loss of income as a result of the accident.

Damage Assessment

[60]        
The starting point for the assessment of damages is that “the defendant
need not put the plaintiff in a better position than his original position and
should not compensate the plaintiff for any damages he would have suffered
anyway”: Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3 at para.
78.

[61]        
This case presents a combination of divisible and indivisible injuries.
The Court of Appeal discussed the principles to be applied in Bradley v.
Groves, 2010 BCCA 361, 8 B.C.L.R. (5th) 247, and recently restated them in Moore
v. Kyba, 2012 BCCA 361.

[62]        
The court in Bradley stated: “Divisible injuries are those
capable of being separated out and having their damages assessed independently.
Indivisible injuries are those that cannot be separated or have liability
attributed to the constituent causes” (para. 20).

[63]        
If injuries are divisible, then the defendant is liable only for the
injury he or she caused. If an injury is indivisible, then the plaintiff is
entitled to compensation for the losses resulting from that indivisible injury,
regardless of whether it had multiple tortious or nontortious causes (Moore
para. 43; Bradley para. 24). In the case of multiple tortfeasors,
liability for indivisible injuries is joint and several (Bradley
para. 21).

[64]        
The court in Bradley confirmed that the aggravation of a
pre-existing injury creates an indivisible injury (para. 37).

[65]        
In this case, the divisible injuries caused by the defendants’
negligence include Ms. Stovel’s partial hearing loss, tinnitus, balance
difficulties, the new injuries to the left side of her neck, left shoulder and
upper back, and her finger injury. For these, the defendants are entirely
responsible to compensate her without reduction or apportionment.

[66]        
Indivisible injuries include conditions that were already in existence
but were aggravated by the defendants’ negligence: these include the increase
in Ms. Stovel’s anxiety after this accident, and the increase in symptoms in
her right neck, shoulder and upper back. The extent to which these indivisible
injuries would have caused Ms. Stovel to have pain or to experience a loss of
enjoyment of life if this accident had not occurred is a matter for assessment
of damages.

[67]        
Part of Ms. Stovel’s neck complaints stem from the pre-existing
degenerative arthritic changes to her neck, which were not causing her problems
before the accident, and now cause her discomfort. As I understand Dr.
Carruthers’ evidence, it is not possible to predict when, if ever, that
degenerative condition might have become symptomatic if the accident had not
occurred, and I infer from that that it is equally impossible to predict the
severity of any symptoms that might have arisen naturally.

[68]        
I therefore approach Ms. Stovel’s neck as a combination of divisible
injuries – the injuries to the left neck and shoulder, as well as those making
symptomatic the pre-existing but asymptomatic degenerative condition of her
cervical spine – and indivisible injuries – those aggravating the right neck
and shoulder problems from 1998 as well as those contributing to any aggravation
of her pre-accident anxiety condition. For the divisible
injuries, the plaintiff is entitled to full compensation; for the indivisible
injuries, her damages assessment must reflect only the harm caused by the
defendants’ negligence.

[69]        
Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, sets out a
helpful list of factors to be considered in assessing damages for pain and
suffering, loss of amenities and loss of enjoyment of life at para. 46:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering;

(f)         loss or impairment of life;

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

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

[70]        
Ms. Stovel is now 64 years old; she was 61 at the time of the accident.
Her injuries included partial deafness, tinnitus, impaired balance, soft tissue
injuries to her neck, shoulder and upper back, including aggravation of similar
prior injuries to her right side. She has almost daily headaches, and her
anxiety and muscle spasm problems, which she had before the accident, have been
made worse. Her anxiety immediately after the accident resembled post-traumatic
stress disorder. Those symptoms, together with the symptoms from her soft
tissue injuries, reached a plateau some time in 2010.

[71]        
Ms. Stovel did not spend much time in her evidence describing her pain,
instead she talked about the impacts her various physical and emotional
problems have had on her ability to go about her activities of daily living,
and on her recreational and social activities. She impressed me as someone who
had grown accustomed to dealing with problems, as evidenced by the way in which
she sought out counselling to deal with the post-traumatic stress disorder-like
symptoms she experienced immediately after the accident, or the way she resurrected
her pain control (TENS) and exercise equipment (exercise bike, exercise ball, Thera-Band)
and put them to use.

[72]        
Ms. Stovel did not exaggerate her symptoms; instead she tended to
present them in a matter-of-fact way, and indeed, volunteered that other
problems unrelated to her accident had likely prevented her from trying to
resume kayaking in 2012.

[73]        
Ms. Stovel has ongoing disability, in that she is no longer able to do
the heavy work around her house and garden in the same way she did before the
accident, although she is still gradually resuming more of this heavier work.

[74]        
The accident significantly impaired Ms. Stovel’s recreational and social
pursuits. She is resuming some of them, but in a lesser, more restricted
fashion.

[75]        
The defendants cite authorities for damages that range between $30,000
for ongoing tinnitus and balance problems in a relatively young man (Haile
v. Johns, Plasman and ICBC, 2003 BCSC 843, 2005 BCCA 517), through $55,000
to $60,000 for combined hearing loss and soft tissue injuries (Turner v.
Coblenz, 2008 BCSC 1801, Chong v. Tran, 2001 BCSC 1417), and up to
$80,000 for ongoing soft tissue injuries to neck and upper back, with daily
headaches (Smith v. Moshrefzadeh, 2012 BCSC 1458).

[76]        
The plaintiff relies on authorities that range from $100,000, including
an allowance for loss of housekeeping (Smusz v. Wolfe Chevrolet Ltd., 2010
BCSC 82), to the same amount plus $15,000 for loss of housekeeping (Poirier
v. Aubrey, 2010 BCCA 266), through to $110,000 (Charlebois v. Vandas, 2004
BCCA 356, Zen v. Readhead, 2011 BCSC 190), although adjusting Charlebois
for inflation would bring it to around $124,000, according to counsel.

[77]        
Both counsel quite properly concede that damage assessments are an
acutely individualized process, and that authorities can at best be a rough
guide.

[78]        
A difficulty arises where an obviously injured plaintiff does not
describe the pain associated with the injuries, and is not fulsome in
describing the effects of that pain on her life. It is the reverse of the
difficulty encountered where a trier of fact is persuaded that there is genuine
pain that is ongoing, but is concerned that the plaintiff’s descriptions of the
pain are overstated or otherwise suspect. In this case, I am careful to not
infer from this plaintiff’s tendency to merely describe the effects of her
ongoing problems flowing from the accident that those problems are not pain
related. On the other hand, I must be careful not to read too much between the
lines, and infer pain that may not be there, or there to any greater extent
than is really the case.

[79]        
Balancing the factors listed in Stapley, recognizing that the
list there was decidedly not exhaustive, and taking into account the evidence
as a whole, I conclude that an appropriate award of non-pecuniary damages that
would be fair to all parties is $90,000.

[80]        
Ms. Stovel makes a relatively modest claim for costs of future care,
based in part on the opinion of Ms. Head. Some of the items recommended are not
much in dispute, such as the hearing aid, and ongoing need for batteries. This
item is medically justified (Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 (S.C.)), and I award $13.00 annually for battery replacement; $70.00 every
2.5 years for ear mold replacement; $280.00 in 2014, then every five years
thereafter for repairs; and $2,400.00 in 2015, then every five years thereafter
for replacement.

[81]        
As to the claims for physiotherapy and chiropractic treatments, each
might provide symptomatic relief when symptoms flare up, but I note that
neither are recommended by Dr. Carruthers on an ongoing or intensive basis. The
plaintiff has not made out a case for either as being medically justified and I
make no award for either form of treatment.

[82]        
I view the claim for repair and replacement of the TENS machine
differently. It also provides symptomatic relief, but unlike physiotherapy or
chiropractic, to which the plaintiff turns only occasionally, the TENS
equipment is required daily to alleviate symptoms and to allow Ms. Stovel to maximize
her activities and enjoyment of life. This goes beyond the kind of “solace” for
which non-pecuniary damages are intended, and in my view is medically justified
in the same way that ongoing pain killing medications are justified.

[83]        
Therefore, the claims as presented for the TENS equipment are allowed:
$178.08 in December 2013 for replacement; $22.40 in mid-2013 and every 1.5
years thereafter for lead wires; $20.16 in 2016, then every 5 years thereafter
for electrode pads; $20.00 yearly for Spectra Gel 202, and $16.00 per year for
batteries.

[84]        
The claims for additional prescription medication are medically
justified and awarded at $149.65 per year for Citalopram (Celexa) and $182.50
per year for Cylcobenzaprime (Flexeril).

[85]        
The claims for homemaking and home and yard maintenance are similarly
reasonable and in my view medically justified. That Ms. Stovel has had help
until now for some of these tasks, without having to pay, is no answer: a
person whose injuries impair their ability to do what is needed should not be
obliged to rely on the kindness of friends or tenants.

[86]        
Inside the home help is claimed for two to four years, as a reflection
of the reality that Ms. Stovel is slowly increasing her ability to do her own
work inside the house, as well as the fact that advancing age, and the effects
of unrelated problems such as the pre-existing sciatica, would likely have
resulted in her hiring some help in any event. Most important, the claim is
advanced for help with seasonal heavy cleaning twice a year. I award the
mid-point of the claim, or $400.00 per year for four years.

[87]        
For yard work and maintenance outside the house, again, Ms. Stovel’s balance
difficulties and increased pain make some assistance medically necessary. I
find, however, that if the accident had not intervened, her pre-existing
sciatica, residual soft tissue injuries and advancing age would have led her to
hiring help for heavier outdoor tasks at approximately the same future point. I
therefore award the mid-point of Ms. Head’s suggested range, or $1,500.00 per
year for four years for outside yard and maintenance work.

[88]        
I make no award for the minor mileage claims or pillow replacement as
the evidence supporting each was inadequate.

[89]        
Counsel have indicated that they will be able to agree on the present
value of these future costs, and any tax implications, between them. If I have
not understood them correctly, or they are unable to agree, they may speak
further to this portion of the award.

[90]        
Ms. Stovel has claims for out-of-pocket expenses. With the exception of
the items I specifically deal with, the claims as advanced are awarded for a
total of $4,000.00, as a round number.

[91]        
I have disallowed the claims for cream and pillow purchased from the
chiropractor, but allow the chiropractic treatment as proper and justified
treatment for symptomatic relief in 2011. I have deducted what I understand to
be agreed as amounts already repaid by the defendants, totalling $203.00 for
treatments at CBI, for a Thera-Band, and for completion of a medical marihuana
form.

[92]        
In this award is an allowance for amounts either paid to tenants for
working around the house, or amounts by which their rent was reduced, as
reasonably spent amounts to do work that injuries from this accident prevented
Ms. Stovel from doing herself.

[93]        
In summary, I award:

[94]        
If counsel need to speak to a costs award other than the usual order
that Ms. Stovel has her costs of the action, they may make arrangements to
do so.

               “R.T.C.
Johnston, J.”             

The
Honourable Mr. Justice Johnston