IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130125

Docket: 31123

Registry:
Penticton

Between:

Amber Werner

Plaintiff

And

Kevin Ondrus and
Monica Ondrus

Defendants

– and –

Docket: 31124

Registry:
Penticton

Between:

Amber Werner

Plaintiff

And

Derek John Liebel
and Cynthia Liebel

Defendants

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

I.                
Introduction:

[1]            
The plaintiff, Amber Werner, unfortunately suffered injuries in two
motor vehicle accidents which occurred less than a year apart. She now seeks
compensation for the injuries she suffered as a result of these two accidents;
the trials of which were heard together in Kelowna, BC. Liability was admitted
by the defendants in each case.

[2]            
The first accident occurred on November 30, 2006 when Ms. Werner was 17
and still attending high school.  Ms. Werner was a passenger in an SUV driven
by her current fiancé, Kevin Ondrus, and owned by Mr. Ondrus’ mother. Their
vehicle hit an icy patch near Summerland, B.C., went into a slide at a speed of
approximately 60 kmh, spun approximately 180 degrees and impacted a concrete
barrier. Due to the impact, Ms. Werner’s head struck the side passenger’s
window. She could not see out of her left eye for approximately 45 minutes. She
was helped out of the vehicle and taken to hospital in an ambulance and
released from hospital the same day.

[3]            
The second accident occurred in Osoyoos, B.C. on September 4, 2007 while
the plaintiff was a passenger in a pick-up truck driven by Mr. Ondrus. She was
sitting in the middle seat of the pick-up wearing a lap belt. Mr. Ondrus had
stopped at a pedestrian crosswalk to allow pedestrians to cross when he looked
in his rear-view mirror and saw a jeep approaching from behind at significant
speed. In Mr. Ondrus’ words, they were “nailed”, there was a “big impact” and
the vehicles stuck together, with the jeep actually stuck under the rear end of
Mr. Ondrus’ pick-up. The plaintiff’s head struck the dash board. She
experienced immediate pain, was “seeing stars” and once again was shaken up and
taken to hospital, this time in Oliver, B.C.

[4]            
X-Rays taken of her cervical spine and lumbar spine following the first
accident, and of her cervical spine following the second accident all proved
negative, ie. there was no apparent structural damage to the spine.

[5]            
Ms. Werner is now 23 years of age. She lives in Osoyoos with her common
law partner, Mr. Ondrus, and is pregnant. The couple is expecting their first
child in February 2013.

[6]            
Prior to the accidents, Ms. Werner’s evidence was that she had suffered
knee problems “due to having grown too fast”, that she was active in sports and
although she experienced swelling in her knees from time to time, the pain was
such that it never prevented her participation in sports. She did receive
chiropractic therapy “once or twice” on her knees and when the swelling
recurred, she would apply ice and the swelling would soon recede. Ms. Werner had
no recollection of prior problems with her back but at one time did receive a
massage, which she explained by stating, “I wanted dad to pay for a massage”.

[7]            
Before undertaking an assessment of the plaintiff’s claims for damages I
will review the plaintiff’s work and activity history before and after the
accidents followed by evidence of Ms. Werner’s pain and suffering including the
medical-legal evidence. In addition to a claim for non-pecuniary damages, Ms.
Werner seeks damages for past wage loss, future loss of capacity, the cost of
future care and special damages.

II.              
Background

A.             
The Plaintiff’s Work History

[8]            
At the time of the first accident, Ms. Werner was still a high school student
and was working part-time at a delicatessen in Osoyoos. Her duties included
serving, food preparation, clean up and other miscellaneous tasks. Following
the first accident she missed one week of work for which she has been
compensated by the defendant.

[9]            
Between the times of the two accidents, Ms. Werner returned to work at
the delicatessen and also started working part-time for Slocan Valley
Contracting Ltd. for approximately 20 to 25 hours per week following her
graduation from high school. Slocan Valley is a small construction company
owned by Renee Paquin, who has been in a relationship with the plaintiff’s
father for several years. As with most construction companies, the amount of work
available is not consistent and the demand for workers, particularly unskilled
workers, varies depending on available projects at any particular time. During
the time leading up to the second accident, the plaintiff’s duties primarily
included clean-up work, delivery and removal of lumber, holding chalk lines for
layout purposes and other general labour assistance as required. She also
performed some clerical work.

[10]        
During 2007 up to the time of the second accident, Ms. Werner had earned
a total of $2,080, at a rate of $20 per hour working part-time for Slocan
Valley. As would be expected, most of those earnings came after her graduation
from high school in June of 2007.

[11]        
Ms. Paquin testified that during the summer of 2007 Slocan Valley had
procured a large project and her plan was that Ms. Werner would begin to work
full-time once the project began. As commencement of the work on that project
was delayed from July to September, 2007, the start of the project coincided
with the second accident and, as a result, Ms. Werner was unable to perform the
physical aspects of the job due to the injuries she suffered. She did attempt
to return in late 2007 and performed some painting but could not continue due
to pain from the injuries sustained in the second accident.

[12]        
Ms. Paquin further testified that if Ms. Werner had been able to accept
full-time work with Slocan Valley in September of 2007, work on the large
project would have continued through “mid 2009”.

[13]        
Also following the second accident, Ms. Werner returned to work at the
delicatessen on September 16, 2007. I am advised that the accident-related time
off from this job resulted in a loss of earnings of $735; this amount is agreed
upon by the parties.  She continued to work part-time at the delicatessen.

[14]        
After considering that Ms. Werner would not have been able to work from
mid-December 2007 until mid-January 2008 due to a death in her family, the
plaintiff claims she missed 30 weeks of work at Slocan Valley and a monetary
loss of $15,000 from that employment and excluding the lost income from work at
the delicatessen.

[15]        
In April of 2008 Ms. Werner commenced work at the Osoyoos Credit Union
on a part-time basis as a teller. In the spring of 2012 she began to work full-time
and was promoted to the position of member service representative and continues
in that position. Work as a member service representative is preferred by Ms.
Werner as a teller’s position involved sitting for long periods of time which
was painful. Also, Ms. Werner reports that she continues to have difficulty
carrying any heavy items including cash boxes and cases of supplies and so
often obtains assistance from one or more other credit union employees.

[16]        
Finally, in 2010, Ms. Werner worked as a server at the “Thirsty Turtle”
in Osoyoos through the summer months earning minimum wage plus tips.

[17]        
Ms. Werner’s income as declared on her income tax returns for the years
2006 to 2011 was as follows:

a)    2006: income was $2,451
all earned at the delicatessen.

b)    2007: income was
$$9,068 from employment at the delicatessen and at Slocan Valley Contracting.

c)     2008: after starting
work at the credit union in April, the plaintiff earned $18,994.

d)    2009: working at the
credit union, the plaintiff earned $25,624.92.

e)    2010: the plaintiff
earned a total of $28,788 at the credit union and the Thirsty Turtle.

f)      2011: the plaintiff’s
income of $33,828.69 was all earned at the credit union.

[18]        
As Ms. Werner is now working full-time at the credit union as a member
service representative earning $19.75 per hour, her income will likely exceed
$40,000 for 2012 and with her baby expected in February, she will be on
maternity leave from the credit union. It is her current intention to remain
with the credit union after maternity leave and she is also hoping to have more
children in future years.

B.             
The plaintiff’s activities pre-accident

[19]        
The evidence presented at trial indicates that Ms. Werner was very
active prior to the first accident. During the winter months, she regularly
engaged in snowboarding and for several years took advantage of an annual pass.
She also enjoyed participating in bicycling, softball, volleyball, running and
other sports.

III.            
Effects of the Accidents upon the Plaintiff

A.             
Ms. Werner’s evidence

[20]        
Following the first accident, Ms. Werner experienced pain in her right
wrist, neck and back. In order to relieve some of the pain, she attended
physiotherapy regularly.

[21]        
Prior to the second accident, Ms. Werner had largely recovered; she had
returned to most of her recreational activities and had commenced work with
Slocan Valley, some of which work included heavy lifting. She and her family
doctor, Dr. de Vries, testified that she was receiving physiotherapy after the
first accident from a physiotherapy clinic in Osoyoos although no records of
those sessions were in evidence. Dr. de Vries testified that Ms. Werner was
“getting better slowly”.

[22]        
Following the second accident, Ms. Werner testified that her neck and
back pain was considerably worse than after the first accident and that she also
began to experience pain in both hips. According to Dr. de Vries, the pain in
both hips continued to worsen after 2007 and as of June 2010 Ms. Werner
continued to experience daily pain in her neck and down her entire spine. Dr.
de Vries recommended ongoing physiotherapy and also recommended that to
alleviate the pain at its worst, Ms. Werner should attempt to work shorter
shifts at the credit union.

[23]        
Ms. Werner was prescribed Gabapentin and Tylenol 3 to control muscle spasms
and pain.

B.             
Dr. le Nobel’s evidence

[24]        
Dr. de Vries referred Ms. Werner to Dr. John le Nobel in late 2010. Dr.
le Nobel is a specialist in Physical Medicine and Rehabilitation. He has
extensive experience in this specialized field and has acted as the Medical
Director of the Lions Gate Hospital Rehabilitation Ward since 1985. He also holds
privileges at G.F. Strong Rehabilitation Centre in Vancouver; a facility 
exclusively dedicated to rehabilitative medicine. Dr. le Nobel testified at
trial by video conference.

[25]        
In his first report relating to Ms. Werner, dated December 7, 2010, Dr.
le Nobel described the patient’s “Current Symptoms” in part as follows at page
2.3:

Amber Werner reports headaches and neck pain and pain in her
low back, right and left hips. She has difficulty sleeping, a lifelong trait
worsened subsequent to the motor vehicle collisions. She has a poor sleep most
or every night. She reports weight gain of 20 pounds to a current 140 pound
range. She is a non-smoker and takes little alcohol and does not affirm use of
recreational drugs. She has knee pains at times. She does not affirm
nervousness or depression.

The neck pain is the worst of her areas. She is sore in the
trapezius muscles on either side, always present to some extent and coming at
any time of the day. Movement in any direction may worsen the neck pain. She is
aware of crepitation or a grinding sensation in her neck.  At times her neck
symptoms have been such that she sought evaluation. She does not feel her neck
pains have changed notably over the past year.

She is sore in the low back. The
pain there tends to come and go. She has pain at the front of her right and
left hips, generally worse when the low back pain is worse. At times she tries
to relieve her back pain with stretching movements in various directions.
Sitting aggravates her low back. She is not aware of the low back changing with
ingestion or elimination. The low back and hip pains are not changed with her
menstrual period. Either or both areas may be particularly bad at any given
time. She is not aware of any specific movement which aggravates the hip pain.

[26]        
In the same report, Dr. le Nobel reported the following diagnoses at
page 1.3:

It is now 3 years and 11 months since the November 30, 2006
motor vehicle collision. Based upon the time elapsed since being injured, I
diagnose her pain symptoms as chronic. (Chronic pain symptoms are pain symptoms
which persist for longer than tissue healing is felt to require. Tissue healing
is generally felt to occur within 10 to 12 months of injury).

I diagnose diffuse myofascial pain. (Myofascial pain is pain
felt to be generated in injured musculoligamentous soft and connective tissue
structures in and near the symptomatic areas. Myofascial pain is felt to be a
cause of some cases of chronic pain).

I diagnose mechanical spinal pain. (Mechanical spinal pain is
pain felt primarily in the spinal column, at times referred from the spinal
column to adjacent areas of the trunk and limbs, made worse by changes in
posture and changes in position).

Amber Werner’s assessment features of pain aggravation with
backward bending implicate posterior spinal structures such as the facet joints
as pain generators. (The facet joints are load bearing paired posterior joints
of the spinal column. The facet joints come under increased pressure with
backward bending such as at today’s assessment. The facet joints are subject to
injury with rapid forceful backwards bending such as is known to occur with
motor vehicle trauma).

I diagnose deconditioning based on Amber Werner’s account of
weight gain over the past several years since the motor vehicle collision and
based on her description of reduced activities overall since November 2006.

I diagnose sleep interference.
Amber Werner’s sleep interference is, by her description, a lifelong problem.
From her account today her lifelong problem of sleep interference has been
worsened by the motor vehicle collision. Absent the motor vehicle collision I
would not have anticipated such worsening of her sleep quality.

[27]        
Also in his report of December 7, 2010, Dr. le Nobel made the following
statements:

Causation

Amber Werner’s absences from work, I believe, were reasonably
attributed to effects of the motor vehicle collisions. (page 1.4)

From her description of being
symptom free prior to the motor vehicle collisions and her description of
ongoing pain since November 30, 2006 I feel the brunt of responsibility for her
chronic pain since November 30, 2006 is borne by the motor vehicle collisions [of]
November 30, 2006 and September 4, 2007. It is acknowledged that Amber Werner
has participated in activities such as snowboarding and wakeboarding with
aggravation of her symptoms following these activities. Absent the motor
vehicle collisions, Amber Werner would less likely have been limited in her tolerance
for such activities and would less likely have experienced such protracted
symptoms following these activities.

[28]        
Dr. le Nobel continued with statements of Ms. Werner being partially
disabled with respect to her current work (at that time, as a part-time teller
at the credit union) and being less able to participate in recreational
activities. He also stated that her prognosis is “guarded”, pointing out that
her ongoing pain over almost 4 years (at the time) and accounts of symptoms not
diminishing indicated her symptoms were likely to continue, “likely for the
next several years and possibly longer.” Dr le Nobel recommended further
investigation, including cervical spine magnetic resonance image scanning for
additional explanation of her history of “radiating numbness to her upper limbs
from time to time” along with X-rays, pain block injection analgesic
medication, and continued work with a physiotherapist in concert with a kiniesiologist
in a progressive exercise reconditioning programme over the course of the next
12-18 months “with the understanding that this time projection may be modified,
depending on at what level Amber Werner’s course plateaus”.

[29]        
In February of 2012, Dr. le Nobel again met with Ms. Werner. Many of his
findings from 2010 were still present. In this report dated February 3, 2012
his recommendations were as follows at p.1.4:

There are treatment strategies which may benefit Amber
Werner. Further attention to her exercise reconditioning with additional
strengthening for her hips abductor muscles and neck muscles would be
appropriate. Additional stretching for her quadriceps muscles would be
appropriate. Tailoring her exercise regimen more closely to the strength and
energy requirements of her work and recreational activities would be appropriate
and hopefully could be organized by her physiotherapist, perhaps with some
additional physiotherapy sessions and/or help from a kinesiologist. It would be
appropriate for Amber Werner to be taught to diarize the exercise in a training
log.

Pain modulating strategies including provision of a
transcutaneous nerve stimulator for use at home on a liberal patient-directed
ambulatory basis may help provide Amber Werner with a non-pharmacological pain
modulating strategy. Allow $200 to $300 for the stimulator and three to four
physiotherapy sessions at $80 per one hour session to familiarize her with the
use of the stimulator.

A trial of tricyclic analgesic/anti-depressant medication
with low dose amitriptyline 5-10 mg taken two to three hours before bed may
help to lessen her pain and improve her sleep quality.

Topical non-steroid anti-inflammatory cream applied a number
of times daily to some of her painful areas may benefit.

Amber Werner has tried extra
strength Tylenol, as many as six doses per day. This has not been successful in
relieving her pain. A further trial of Tylenol extra strength up to 1 gram four
times daily in conjunction with recording her activity and trying ti increase
her activity tolerance would be of interest.

[30]        
Under the heading of “prognosis”, Dr. le Nobel noted that “[a]ttendance
at a chronic pain facility may be of benefit”. He opined that surgery would not
be of benefit to Ms. Werner and that even with full implementation of his above
noted recommendations:

I would allow six to eight
months of the above measures to gauge their utility. A full return to all of
her pre-accident activities in a symptom-free state is not anticipated. In that
respect her prognosis is guarded. Some improvement is reasonably projected.

[31]        
Based upon Dr. Le Nobel’s expertise and experience in the field of
rehabilitation, the consistency of his evidence and his frankness under
cross-examination, I found the evidence of Dr. le Nobel to be very convincing.

C.             
The evidence of Dr. Boyce

[32]        
The defence called Dr. David W. Boyce, a very experienced orthopaedic
surgeon who has been in private practice in Kelowna since 1991. Dr. Boyce
stated that he has a “special interest in hip/knee arthroplasty, foot/ankle
surgery and arthroscopic knee surgery”. Dr. Boyce’s specialty is surgery
dealing with injuries to the musculoskeletal system, typically on patients
suffering trauma. His usual practice after surgery and his follow up meetings
with patients is to refer the patient to a rehabilitation specialist, physiotherapist
or other discipline for continuing care and rehabilitation.

[33]        
Dr. Boyce examined Ms. Werner on two occasions and prepared
medical-legal reports dated September 9, 2008 and February 16, 2012 which were
entered as exhibits at trial.

[34]        
In his report of September 9, 2008, Dr. Boyce’s opinion was:

Based on this patient’s clinical history as well as physical
findings she has likely suffered a strain of her paraspinal soft tissues in the
cervical and lumbar region. It is most likely related to the ligamentous and
tendinous tissues in the area. She has noted gradual improvement although she
still has symptoms mainly related to activity or sitting for long periods.

I have reassured her that there
is no concern of long tem sequelae and that she should have a full return of
function related to both work and recreational activities.

[35]        
In his report of February 16, 2012, Dr. Boyce stated:

Since the previous assessment and resultant report, this
patient has had ongoing neck pain with related stiffness. She stated that both
sides of her neck seem to become painful and stiff related to persistent
activity such as working out or driving. This seems to vary on a day to day
basis. She also still has occasional tingling in her arms, which is
short-lived.

Similarly, she has upper and lower back discomfort but this
much less problematic than her neck pain.

Thirdly she has discomfort in both hips. She describes this
as a lateral hip pain. There seems to be a lumbosacral origin of this
discomfort. She stated that when her hips are bothersome she seems to have
tingling in her legs at times.

She stated that she has had
minimal improvement recently. She still attends physiotherapy on a weekly basis
where she receives massage as well as manipulation in the next and low back
region, with occasional attention to her hip pain. She uses a TENS machine
regularly.

[36]        
Dr. Boyce’s second report continued and he made reference to the
findings of Dr. le Nobel in his report of December 7, 2010 and also to the
findings of Dr. Stewart, a rheumatologist, dated December 2009 who had
concluded that Ms. Werner “had cervical and lumbar strain with persistent
myofascial pain”.

[37]        
At trial, Dr. Boyce seemed very uncomfortable as a witness and was
reluctant on occasion to answer questions on cross-examination. For example,
when asked if he agreed that “chronic pain” could be assessed if soft tissue
injury and pain lasts longer than 18 months when the patient has been compliant
with a prescribed program, he was at first reluctant to agree on any definition
of chronic pain. Dr. Boyce did eventually agree, albeit reluctantly, that if
there were objective physical findings of soft tissue injury persisting after
the anticipated recovery period, the patient could be considered to be
suffering chronic pain. In this case, he agreed there were objective findings
of pain by Dr. le Nobel.

[38]        
Overall, I prefer the evidence of Dr. le Nobel who, as a rehabilitation
specialist, is more qualified than Dr. Boyce, a surgeon, to opine on physical
and psychological components of pain and to make an assessment of chronic pain
persisting over time.

D.             
Ms. Stefishen’s evidence

[39]        
Kris Stefishen, the physiotherapist who has been treating Ms. Werner
since early 2008, also testified at trial. Ms. Stefishen reported consistent
stiffness in Ms. Werner’s neck, back and in her shoulder blades, muscle spasms
which are attributable in part to the body compensating for stiffness resulting
in pain, stiffness in other areas, abnormalities in hip movement, and stress.

[40]        
Ms. Stefishen also testified that Ms. Werner has exercised as prescribed
by her doctors as she had strived to continue to be “in shape” as she had been
before the accidents. She further testified that Ms. Werner has had no loss of
muscle over time and no fluctuation in muscle tone since she began treating Ms.
Werner. Ms. Stefishen recommends continuation of physiotherapy as needed: at
least once a week or more depending on pain levels.

[41]        
I accept that Ms. Werner’s pain, including neck, hip and back pain
continues and has had a significant impact on: her capacity to work comfortably;
her participation in recreational activities and her domestic activities.  As
of the date of the trial, her pain had continued for almost 6 years from the
date of the first accident; there is a guarded with little prospect that she
will fully recover.

IV.           
Defendant’s submissions as to Ms. Werner’s injuries

[42]        
The defendants’ submissions regarding the injuries claimed by Ms. Werner
are threefold. Firstly, the defendants acknowledge Ms. Werner has suffered
“some soft tissue injury” but state that those injuries were relatively minor.
Secondly, the defendants submit that Ms. Werner’s pre-accident problems with
her neck and back have, in part, contributed to her current injuries and should
be taken into account in assessing damages. Finally, the defendant’s allege
that the injuries claimed by Ms. Werner in connection with her hips are not
related to the action and there is no causal connection between the accidents
and the hip pain she has suffered.

[43]        
Regarding the defendant’s position that the injuries suffered by Ms.
Werner were relatively minor, several arguments, many of which were repetitive,
were relied upon to support that position. The substance of those submissions
and do not bear repeating, save for the following, which I have listed and
addressed in turn:

a.     An
allegation was made that imaging of Ms. Werner’s spine has shown no abnormalities.

This statement is correct, however, the claim is for
soft tissue injuries which are now considered to have caused chronic pain. The
fact that there are no structural spine injuries is therefore irrelevant.

b.     An
allegation that the plaintiff, at the time of trial, was not taking medication.

Ms. Werner testified that she had ceased taking
medication, including Gabapentin and Tylenol 3, once she made a decision to
attempt to become pregnant. There is no question she was previously taking
medication for the pain.

c.     Ms. Werner
missed very few days of work following the two accidents and has missed very
few days of work since commencing employment at the credit union.

The number of days of work lost due to injuries does not
bear a direct relationship to the extent of the injuries and the pain and
suffering endured by Ms. Werner. I have found that she has indeed suffered from
the injuries and Ms. Werner has never claimed those injuries were debilitating;
only that they were painful and no doubt made her participation in employment
more difficult.

d.     It is
alleged that Ms. Werner has remained active in sports, has maintained her
household duties and she has been able to maintain her social life.

Again, these allegations merely point to the fact that
Ms. Werner has attempted to live a normal life following the accidents. The
plaintiff’s claim is not based upon a finding of total long term disability,
but rather, prolonged and indefinite pain and suffering. Additionally, while Ms.
Werner has returned to play several sports in which she was active before the
accidents, the evidence satisfies me that the extent of her participation has
been reduced and she now paces herself so as to reduce pain from these
activities. With respect to household work, her evidence is that she is now
required to space out her work so as to avoid aggravating the injuries but
still feels pain. Finally, absent any claim of depression or similar
psychological effects, I fail to see why Ms. Werner’s ability to maintain a
“social life” has any connection whatsoever with the injuries she has suffered.

[44]        
The defence position that the plaintiff’s activities are indicative of
very minor injuries also fails to consider the “stoicism” that an injured
person can show to try to return to his or her previous level of activity. As
Justice Goepel stated in Guthrie v. Narayan 2012 BCSC 734, in para. 30:

Ms. Guthrie is seeking
compensation for what she has lost, not what she can still do… She should not
be punished for trying to get on with her life and enjoying it the best she can
regardless of the limitations imposed on her as a result of the accident.

[45]        
Further, in Stapley v. Hejslet, 2006 BCCA 34 at para 46, Kirkpatrick
J.A. noted that a plaintiff should generally not be penalized on account of
their stoicism.

[46]        
Regarding the defence reliance on Ms. Werner’s pre-accident health
problems, the evidence satisfies me that those conditions were very minor. Ms.
Werner’s “Confidential Patient History Form” for a massage therapist, which was
completed in 2005 was in evidence. On this form Ms. Werner described her
condition and symptoms of “lower back pain, knee problems…”. The complaints
regarding her back pain were very minor and Ms. Werner referred to her knee
problems as being related to her fast growth. She indicated that she eased the
swelling in her knee with an ice pack. In my view, the complaints described
bear no relationship to the injuries claimed as a result of the accidents.

[47]        
The third issue raised by the defence was an apparent lack of evidence,
especially soon after the accidents, of injuries to her hips. The first
reference in the medical-legal reports is in the report of Dr. De Vries in his
report of September 29, 2010 when, referring to the 2007 accident, the doctor
stated at page 2:

She now had pain in her neck and back again that was a lot
worse than before. She also started getting pain in both hips after the
accident, but is unsure how long after.

Since 2007 the pain in both hips
is getting worse.

Those words would indicate that Ms. Werner had previously
reported hip pain. Dr. De Vries became Ms. Werner’s family doctor in 2009 and
Ms. Werner had previously consulted another doctor at the same clinic but Dr.
De Vries did testify that he had looked at his predecessor’s notes when he was
consulted by Ms. Werner.

[48]        
Also, I referred above to “Current Symptoms” portion of the report of
Dr. le Nobel of December 7, 2010 in which Ms. Werner reported hip pain.

[49]        
Counsel for the defendants also cross-examined Ms. Stefishen, the
physiotherapist for Ms. Werner, regarding the lack of references in her notes
prior to 2009 of any reports of hip pain by Ms. Werner. Ms. Stefishen testified
that earlier notes in her file referencing pain in the sacroiliac area could
also be considered to be hip pain and there was evidence at trial of the close
proximity of the hips and the sacroiliac which could explain the lack of any
earlier reference to hip pain. Also, the evidence is clear that the hip pain
has worsened and arose primarily from the second accident in 2007.

V.             
Findings: Ms. Werner’s injuries

[50]        
In conclusion, and for the reasons set out above, I accept that Ms.
Werner’s pain (including neck, hip and back pain) has had a significant impact
on her capacity to work, on her recreational activities, her quality of sleep
and her domestic activities. Each of these impediments, save for her capacity
to work as a Member’s Services Representative, have, as of the date of the
trial, continued for almost 6 years from the date of the first accident. I also
accept the evidence of Dr. le Nobel that Ms. Werner is suffering chronic pain
with no reasonable expectation that the pain will fully subside or cease. I do
not accept the arguments of the defence to the effect that the injuries
suffered by Ms. Werner were very minor.

VI.           
Damages

[51]        
The plaintiff and defendant submissions under the various heads of
damage are as follows:

A.             
Non-pecuniary damages

[52]        
Having generally accepted the evidence of Ms. Werner, Drs. De Vries and
le Nobel as well as Ms. Stefishen regarding the injuries of Ms. Werner and the
extent of her pain and suffering, the authorities provided to me by the
plaintiff’s counsel are much more applicable to this case than those put
forward by the defence. Counsel for the plaintiff seeks non-pecuniary damages
for pain and suffering in the amount of $80,000.

[53]        
In support of that claim I have been referred to the decision of Stapely
v. Hejslet, 2006 BCCA 34 where at paras 45 – 46 the following were set out
as the factors to consider when assessing an award of non-pecuniary damages.
Kirkpatrick J.A. stated as follows:

[45]      … I think it is instructive to reiterate the
underlying purpose of non-pecuniary damages.  Much, of course, has been said
about this topic.  However, given the not-infrequent inclination by lawyers and
judges to compare only injuries, the following passage from Lindal v. Lindal,
supra, at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation.  It therefore will not follow that in
considering what part of the maximum should be awarded the gravity of the
injury alone will be determinative. An appreciation of the individual’s
loss is the key and the "need for solace will not necessarily correlate
with the seriousness of the injury" (Cooper-Stephenson and Saunders,
Personal Injury Damages in Canada (1981), at p. 373).  In dealing with an award
of this nature it will be impossible to develop a "tariff". An
award will vary in each case "to meet the specific circumstances of the
individual case" (Thornton at p. 284 of S.C.R.).

[Emphasis added.]

[46]      The inexhaustive list of common factors cited in Boyd
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).

[54]        
The plaintiff relies on Bergman v. Standen, 2010 BCSC 1692, Jamieson
v. Duteil, 2001 BCCA 516 and Whyte v. Morin, 2007 BCSC 1329 to
provide a guiding light as to the appropriate amount of compensation.

[55]        
In Bergman, the plaintiff, a young mother of two young children,
suffered a Grade II whiplash injury to her neck and upper back which resolved
after several months, contusions and bruises to her face and chest as well as a
sore wrist which resolved shortly after the accident and “most significantly,
she suffered a mechanical injury to her lower back that . . . . caused her
significant pain and discomfort in the four and a half years since the
accident.” The court also found “her back will remain symptomatic
indefinitely”. The award for non-pecuniary damages, which included $2,500 for
past loss of housekeeping capacity, was $77,500.

[56]        
In Jamieson, the Court of Appeal upheld the trial judge’s award
of $75,000 for non-pecuniary damages but did say the award “is well on the
generous side”. The injuries to the 25 year old female plaintiff were soft
tissue injuries to the T7-11 area (mid-back) and chronic myofascial pain syndrome
with poor prospects for recovery. At paragraph 34 of the trial judgment, the
trial judge said:

There is no doubt that the
plaintiff’s injuries have interfered substantially with her enjoyment of life.
To a large extent, she holds her life around recovering from her work and
preparing herself for the next work day. Her participation in outdoor
activities, such as hiking, has been curtailed. She has lived with pain, and
will continue to do so. There will evidently be flare-ups related to the
chronic myofascial pain syndrome superimposed on her already vulnerable back.

The court also noted that the plaintiff had a history of
back problems prior to the accident.

[57]        
The injuries of the plaintiff in Jamieson are similar to those
suffered by Ms. Werner and in both Jamieson and the case at bar, the
plaintiffs were young women either still attending or recently graduated from
secondary school. In both cases, several years had passed between the date of
the accident and the trial and there was an expectation that the chronic pain
would continue. In Jamieson, however, it would appear as though the
plaintiff was curtailed from outdoor activity whereas Ms. Werner has resumed
outdoor athletic activity, albeit at a reduced pace and incurring pain after
activity. Ms. Werner is definitely not in the position of having to curtail her
activities.

[58]        
Finally, counsel for Ms. Werner referred to the decision of Madam
Justice Smith in Whyte, another case in which Dr. Le Nobel provided
expert opinions for the plaintiff. Justice Smith, in referring to the evidence
of Dr. le Nobel, at paras. 22 and 23:

[22]      This witness agreed on cross-examination that the
plaintiff’s prognosis might be more positive if she improved her cardiovascular
fitness, lost weight and obtained assistance with her alcohol habit, and that
stressors in her life would affect her outcome and prognosis.

[23]      However, Dr. le
Nobel’s opinion is that the prognosis is guarded; while the plaintiff might be
able to regain a significant portion of her lost fitness, full return to all of
her pre-accident capabilities in a symptom-free state was not anticipated.

[59]        
In assessing damages for pain and suffering, Justice Smith found, at
paras. 63 and 64:

[63]      Ms. Whyte suffered injuries in the April 2004
accident affecting her neck, shoulder and hip. She was unable to work for a
month due to acute pain and has suffered ongoing pain, primarily in her neck,
but more recently extending into other areas of her body. For reasons related
to her personality and her circumstances, she has not taken significant time
off work, but I am satisfied that she has experienced the pain she has
described, and that she has to some extent worked through pain in order to
continue to bring in an income to her family (for which she was the sole
breadwinner for some periods of time).

[64]      The pain has led to
difficulties in her work and to a reduction in her ability to enjoy life, in
particular the recreational activities she enjoyed previously. The pain has
caused her to greatly reduce her activity level and to become deconditioned. I
find that she will likely continue to experience pain for some time but will
most probably make a substantial recovery within a few years, particularly if
she follows the recommendations of Dr. le Nobel. I advert to the principles for
awarding damages for pain, suffering, loss of enjoyment of life and loss of
amenities described in Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229, 83 D.L.R. (3d) 452. On the evidence and in the light of the
awards in the authorities to which I have been referred, I concluded that an
award of $80,000 for general damages is fair and reasonable in this case.

[60]        
I find that the circumstances of Ms. Werner in respect of the nature of
the injuries suffered in the two motor vehicle accidents and the pain,
suffering and inconvenience resulting therefrom, are more akin to the
circumstances, pain and suffering and other factors as found in the three
decisions referred to by counsel for the plaintiff. The only distinguishing
feature is that Ms. Werner has been more diligent with following a program of
physiotherapy and exercise as suggested by her doctors and physiotherapist. To
this end, she has done more to mitigate her loss and as a result of her
participation in rehabilitative activities, she will likely be able to lessen
the effects of her injuries in the future, however, her injuries are chronic
and are likely to continue for some time in the future. As a result, I find
that an award of $73,000 for non-pecuniary damages for pain and suffering is
both fair and reasonable. In making this finding I note that the plaintiff is
still very young and has been in pain for a prolonged period of time despite
adherence to a recommended course of rehabilitation. While she is able to
participate in many of the activities that she had enjoyed prior to the
accident, I am convinced that she does so at a reduced level, and has accepted
that she will experience increased symptoms following these activities.

B.             
Past Wage Loss

[61]        
As stated above, the parties have agreed that the sum of $735 for Ms.
Werner’s loss of income at the delicatessen following the second accident
should in included under this head of damage. The plaintiff claims a total of
$15,852.60, which must be reduced by the amount of $117.60 as I understand that
amount has already been paid by the defendant. I will address the remaining
claim of $15,000.

[62]        
The remaining claims under this head relate to loss of income from her
employment with Slocan Valley and any loss of income as a result of work missed
at the credit union.

[63]        
Regarding work lost at Slocan Valley, I agree with counsel for the
defendants that the maximum time that Ms. Werner lost in that employment would
be from September 4, 2007 to April 20, 2008 (approximately 7.5 months) when she
started work with the credit union. Ms. Werner admitted during
cross-examination that: she took the Slocan Valley job to supplement her income
from the delicatessen; that she did not intend for the Slocan Valley job to be long-term;
and that she likely would have continued to look for other, more long-term
employment during her tenure at Slocan Valley.

[64]        
In that time period of 7.5 months I find it appropriate to deduct the
time between mid-December 2007 and mid January 2008 when she was not available
for work due to a death in the family.

[65]        
The evidence of Ms. Paquin was that if Ms. Werner had been able to
perform work for Slocan Valley in the fall of 2007 and the early months of 2008,
the work would have been available to her. However, considering that Ms. Werner
was working part-time at the delicatessen, was considering other career
opportunities, and in light of the fact that there would have been work
stoppages over the winter of 2007-2008 due to the seasonal weather, I have
assessed the plaintiff and defendant’s position and as best as I can, I conclude
that reasonable compensation for lost of past income with Slocan Valley for the
is $12,000.

C.             
Loss of Capacity to Earn Income

[66]        
Counsel agree that the test for entitlement to damages for loss of
capacity to earn income is that set out in the decision of Perren v. Lalari,
2010 BCCA 140 [Perren] by Madam Justice Garson who adopted the following
words of Mr. Justice Bauman (as he then was) in Chang v. Feng, 2008 BCSC
49:

[76] This appears to be an express direction to first
enquire into whether there is a substantial possibility of future income loss
before one is to embark on assessing the loss under either approach to this head
of loss, in particular, under the capital asset approach as well. (I note
that Justice Russel arrived at a similar conclusion in Naidu v. Mann
2007 BCSC 1313 and see also Bedwell v. McGill, 2008 BCCA 6, para. 53)

[Emphasis from Perren.]

[67]        
Also, in considering a claim under this head, the principles set out by
the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 456 and
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 were
summarized by Justice Garson as follows:

1.         A future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation [Athey at para. 27], and

2.         It is not loss of earnings but, rather, loss of
earning capacity for which compensation must be made [Andrews at 251].

[see: Perren at para 30]

[68]        
In considering whether there is, in this case, a substantial possibility
of future income loss, the following evidence was of assistance:

a)    Ms. Werner has
worked for the credit union for over four years and has advanced from the
position of part-time teller to full-time member sales representative. Her
evidence is that she does suffer pain during workdays, however, in her current
position, in which she is not required to remain seated for long periods of
time and is no longer required to carry heavy coin containers, is less
demanding physically than the teller position. Ms. Werner did testify that she
does seek assistance with carrying stationary supplies which is part of her job
description which was corroborated by another employee, Mike Crane, who
testified he did carry some boxes to assist Ms. Werner. However, another
witness, Cindy Grigg, the supervisor of tellers at the credit union and the
person who hired Ms. Werner, stated at trial that she had no knowledge of Ms.
Werner needing assistance for physical tasks at work since 2008. Ms. Grigg also
stated that until shortly before the trial, she was not aware of Ms. Werner
having suffered injuries in a motor vehicle accident. Finally, Ms. Grigg stated
that Ms. Werner has been a good employee, causing no problems at work and had
obtained a promotion to member services representative over two other employees
who had also applied for the position.

I conclude that
based on all of the evidence that Ms. Werner does experience pain on many
occasions at work, however, she is not limited in any significant way from
performing her duties at the credit union.

b)    Ms. Werner also
testified that prior to the two accidents, she had wanted to work as a massage
therapist or as a baker. More specifically, regarding the latter, she enjoyed
baking cakes, had taken baking classes in Penticton and had considered a career
in that field. Although I do not doubt that Ms. Werner had previously
considered a career in the fields of massage therapy and in baking, I find that
her intentions in that respect were preliminary and there was no substantial
likelihood of significant income loss from not having pursued or being
precluded from pursuing those vocations.

c)     There is
no doubt, however, that Ms. Werner is precluded, as a result of her injuries,
from any type of physically demanding work. For example, if she were to have
pursued a career as a labourer or trades person in the construction industry,
her injuries would likely have prevented that career. Based on the evidence, I
do not believe that Ms. Werner ever seriously intended to pursue a career in
construction. Instead, I find that she had taken on the part time work with
Slocan Valley in part due to a lack of hours at the delicatessen and due to the
better hourly rate of pay at Slocan Valley.  I also note that when working for
Slocan Valley, Ms. Werner was earning $20 per hour and it is unlikely that if
she could have continued with that work, her rate of pay would have increased
in any significant way. It is also significant to point out that Ms. Werner’s
current rate of pay at the credit union is $19.75 per hour and so there is no
significant loss in terms of income and in fact there is likely a benefit to Ms.
Werner being at the credit union in terms of consistent work hours and
benefits.

d)    There is no
evidence of any other more physically demanding work to which Ms. Werner
aspired “but for” the accidents and no evidence of loss as a result of not
being able to pursue alternative careers.

[69]        
Ms. Werner stated in her evidence on two occasions that she intends to
continue her employment at the credit union and that after her maternity leave
she intends to return to her current position. She enjoys her job, which
appears to be a secure position, enjoys the people she works with, and is paid
an amount comparable to or better than she may have earned in the construction
industry.

[70]        
I therefore find that there is only speculation and no substantial
possibility of a loss of future earning capacity and, accordingly, the
plaintiff’s claim is dismissed under this head of damage.

D.             
Cost of Future Care

[71]        
Under this head of damage, Ms. Werner seeks the cost of additional
physiotherapy treatment, possibly with the participation of a kinesiologist, a
transcutaneous nerve stimulator for use at home, medication to improve her
sleep quality, the cost of attending a chronic pain facility and compensation
for assistance in performing household tasks.

[72]        
The test for an award of the costs of future care was reviewed by Madam
Justice Humphries in Juraski v. Beek, 2011 BCSC 982 at para. 103:

[103] According to Milina v.
Bartsch, supra, an award for cost of future care must be medically
justified and reasonable, using an objective test: what is reasonably necessary
to preserve the plaintiff’s health. While there must be a medical justification
for the claims, medical necessity is too stringent a test (Zapf v. Muckalt (1996),
26 B.C.L.R. (3d) 201 (B.C.C.A.)

[73]        
In his report of December 7, 2010, Dr. le Nobel had recommended Ms.
Werner work with her physiotherapist and kinesiologist in a “progressive
exercise reconditioning programme” which could continue for 12 to 18 months.

[74]        
As noted above, in his report of February 3, 2012, Dr. le Nobel
recommended the following regarding physiotherapy:

There are treatment strategies
which may benefit Amber Werner. Further attention to her exercise
reconditioning with additional strengthening for her hip abductor muscles and
neck muscles would be appropriate. Additional stretching for her quadriceps
muscles would be appropriate. Tailoring her exercise regimen more closely to
the strength and energy requirements of her work and recreational activities
would be appropriate and hopefully could be organized by her physiotherapist,
perhaps with some additional physiotherapy sessions and/or help from a
kinesiologist. It would be appropriate for Amber Werner to be taught to diarize
the exercise in a training log.

[75]        
I understand Dr. le Nobel’s references to exercise, physiotherapy
assistance, stretching etc. in his 2012 report as “appropriate” as a
recommendation for such treatments. As stated above, I also accept the opinions
of Dr. le Nobel over those of Dr. Boyce based largely upon Dr. le Nobel’s
expertise in rehabilitative medicine as opposed to Dr. Boyce’s expertise as a
surgeon.

[76]        
Dr. le Nobel is not recommending “indefinite” and “intermittent”
physiotherapy as was suggested by counsel for Ms. Werner. Rather I understand
his statement above as a recommendation for Ms. Werner to obtain the assistance
of her physiotherapist, and possibly a kinesiologist, in developing an exercise
and stretching regimen better suited to the strength and energy requirements of
her work and recreational activities. Ms. Werner has had the benefit of
considerable physiotherapy following the 2010 report of Dr. le Nobel.

[77]        
I find that the additional future physiotherapy and kinesiology
treatments recommended by Dr. le Nobel could amount to an additional monthly
appointment to assist Ms. Werner in developing and maintaining her exercise
regimen and a reasonable period of time for those continuing treatments will be
over the next 12 to 18 months. With one appointment per month over 15 months at
a cost of $80 per appointment, and assuming some increase in the cost over that
period, my award for the future cost of physiotherapy and kinesiology is $1,250.

[78]        
Regarding the use of a transcutaneous nerve stimulator and sessions with
a physiotherapist to assist Ms. Werner in familiarizing her with its use, Dr.
le Nobel stated in his 2012 report that the same “may help provide Amber Werner
with a non-pharmacological pain modulating strategy”. While this recommendation
stops short of a firm treatment directive, it nevertheless provides a
sufficient medical justification for the treatment and appears to be a
reasonable approach given the plaintiff’s overall circumstances, including her
pregnancy. I award a total of $600 towards this cost.

[79]        
Regarding the ongoing cost of medications, due to her pregnancy Ms.
Werner is appropriately avoiding any medication. Dr. le Nobel did recommend
analgesic / anti-depressant medication, medication to assist sleep quality, an
anti-inflammatory cream and extra strength Tylenol. I expect that the plaintiff
will resume taking pain medication, as needed, following the birth of her
child, as is recommended by her physician. As some pain is likely to continue
for years, I award the amount of $4,000 for future medication costs.

[80]        
In his 2012 report, Dr. le Nobel stated, at p. 1.5 “Attendance at a
chronic pain facility may be of benefit.” This again, is hardly a firm
recommendation and only recognizes that attendance at such a clinic “may”
assist Ms. Werner. Such evidence is merely speculative and does not meet the
test of “medically justified and reasonable”. Accordingly the claim for the
cost of a pain clinic is dismissed.

[81]        
The final claim under this head is for compensation is for the future
cost of housekeeping services. There was evidence from Ms. Werner regarding the
difficulties she has had in maintaining her home which she now performs less
often and in shorter stages due to pain when she works too much around the
house. There was no mention in the medical reports for any medical need for
this type of assistance.

[82]        
In assessing cost of future care, it is necessary to assess what is
“reasonably necessary to preserve the plaintiff’s health”, and in doing so, “the
court should examine whether on the evidence the plaintiff has used the items
or services in the past and whether the plaintiff will likely use the items or
services in the future”: see X v. Y, [2011] BCJ No. 1378 at para
256.

[83]        
In my view, the plaintiff has not demonstrated that she is physically
unable to perform household duties, or that she has needed or used these replacement
services in the past or would be likely to use them in the future. Instead, I
find it more appropriate to indicate that of the total award for non-pecuniary
damages ($73,000), $3,000 shall be attributed to compensate the plaintiff for diminished
ability to perform housekeeping tasks: see Hussain v. Cho, 2012 BCSC 194
at paras 26-28, citing O’Connell v. Yung, 2012 BCCA 57;

E.              
Special Damages

[84]        
The parties have agreed to the sum of $14,947.30 for special expenses for
treatments, medication, MRI costs, mileage and other matters that remain
outstanding and I so order full payment of that amount.

VII.          
Summary and Conclusion:

[85]        
In summary, I find that the plaintiff has established damages in the
following amounts:

[86]        
As there has been divided success on the issues, I award the plaintiff
50% of her costs under Scale B.

“Jenkins J.”