IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130131

Docket: M082806

Registry:
Vancouver

Between:

Satinder Jawanda

Plaintiff

And:

Sukwir Singh
Samra, also known as Sukwir Singh,
Ajay K. Dhir and Jasbir Jawanda

Defendants

And:

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice B.D. MacKenzie

Reasons for Judgment

Introduction

[1]            
Satinder Jawanda claims damages for injuries she sustained in a motor
vehicle accident on June 30, 2006.

[2]            
Liability has been admitted. The issue is whether all of Ms. Jawanda’s
injuries and ongoing symptoms, including chronic pain and numbness in her hands,
were caused by the accident, and, if so, what is a fair and proper assessment
of damages.

[3]            
At the outset it is helpful to remember the comments of
McEachern C.J.S.C. in Price v. Kostryba, 70 B.C.L.R. 397, [1982]
B.C.J. No. 1518 (S.C.). At para. 4, the Chief Justice stated:

… Human experience tells us
that these injuries normally resolve themselves within six months to a year or
so. Yet every physician knows some patients whose complaint continues for
years, and some apparently never recover. For this reason, it is necessary for
a court to exercise caution and to examine all the evidence carefully so as to
arrive at fair and reasonable compensation.

[4]            
The defendants and third party say the plaintiff’s injuries resolved
within this six-month to twelve-month timeframe and that any ongoing discomfort
or pain she now suffers from was not caused by the motor vehicle accident.

[5]            
Conversely, plaintiff’s counsel submits that some six years after the
motor vehicle accident Ms. Jawanda still suffers residual pain and discomfort
because of soft tissue injuries and the symptoms associated with thoracic
outlet syndrome.

[6]            
As defendants’ counsel observed, “the defendant’s view of this case is
in stark contrast to the plaintiff’s case …”

Facts

[7]            
The accident occurred at approximately 12:30 a.m. on June 30, 2006.
Ms. Jawanda’s husband was driving and she was sitting in the backseat wearing
a lap belt. Her two children were sitting beside her. Without warning their
vehicle was struck on the passenger side by the defendants’ vehicle.

[8]            
The impact was significant and caused considerable damage to the right
front fender and left front wheel of the plaintiff’s vehicle. It collided with
the median curb with significant force before coming to a stop.

[9]            
The Jawanda vehicle was “written off” because of the extensive damage.

Before the Accident

[10]        
The plaintiff was born March 16, 1977, in India. She was educated in
India and obtained a B.A. degree from a college in India. She married her
husband in India in 1998 and came to Canada in March 2000 to live with him.
They have two children aged 12 and 10.

[11]        
At the time of the accident, Ms. Jawanda was 29 years of age. She
is now 35.

[12]        
Since coming to Canada, Ms. Jawanda has improved her English to the
point where, when testifying, she did not have to rely continually on the
assistance of a translator. She did, however, need assistance with respect to
some of the questions asked by both counsel. It is therefore important to
remember, when considering the totality of the evidence presented by
Ms. Jawanda, that English is not her first language and she does need some
assistance with translation.

[13]        
Ms. Jawanda testified that since coming to Canada she has worked
hard in her role as a mother and homemaker.

[14]        
Ms. Jawanda entered the work force in the summer of 2002. While pregnant
with her second child, she worked with her mother-in-law picking blueberries in
Richmond, B.C. This was very hard work. She was in the fields for nine to
eleven hours a day, six days a week. After her second child was born she
returned to picking blueberries from July to October 2005.

[15]        
Ms. Jawanda was not employed at the time of the accident because
her husband’s new employment required him to work during the day. She remained
at home and provided care for the children.

[16]        
Ms. Jawanda testified that prior to the motor vehicle accident she
had no difficulties picking blueberries or doing the majority of the housework.
She testified she did not experience any neck or back problems or have any
other significant health concerns.

[17]        
She testified she was a very happy, upbeat person who enjoyed
socializing with her family and in-laws. She helped at the Temple in the
kitchen and enjoyed the usual social activities of shopping and going to movies
with her husband and friends.

[18]        
Mr. Jawanda confirmed that his wife was in good health before the
accident and had no physical limitations, either at home or while participating
in the arduous job of blueberry picking. He testified that she was “quite
happy” and cheerful and was not depressed or moody.

[19]        
The plaintiff’s testimony was also confirmed by her sister-in-law,
Ms. Sidhu. She testified she is quite close to the plaintiff and confirmed
Ms. Jawanda was “full of energy” and a very happy person who had no
physical or emotional difficulties before the accident. She confirmed that she
and the plaintiff helped in the kitchen at the Temple making bread and doing
dishwashing.

[20]        
The plaintiff’s mother-in-law, Mrs. Jawanda, who needed the
assistance of an interpreter to testify, similarly confirmed her
daughter-in-law worked diligently both in the home and picking blueberries and
had no physical limitations. She testified that in addition to reaching above
her shoulders in order to pick the high blueberries, the job required lifting
and transporting relatively heavy baskets of berries throughout the day. Even
though the plaintiff is five-foot three-inches and weighs only about
100 pounds, she was able to perform all these tasks before the accident.

After the Accident

[21]        
Ms. Jawanda testified that the second day after the accident she
had a sore neck and pain in her lower back and bruises on her legs. She also
testified that she developed upper back, shoulder and arm pain, that her arms
were “really stiff” and she had pain in her legs, and that these symptoms did
not improve in the first six months.

[22]        
Ms. Jawanda testified in cross-examination that generally the left side
was worse than the right side, she was “in a lot of pain” and advised her
medical practitioner of her symptoms. She was prescribed “Tramacet”, a strong
anti-inflammatory, and massage. She stopped taking Tramacet because it was “too
strong”. Since then she uses only Advil “sometimes twice a week” for pain and
headache relief.

[23]        
Ms. Jawanda testified that she developed headaches and reported this to
her family doctor, Dr. Parhar, “sometime” in the fall of 2006. She also
confirmed that she slipped on three steps coming down the living room stairs on
January 5, 2007. She testified she felt some “weakness” in her legs just
before she slipped. She explained that she “landed” on her bottom. She
testified the neck and back pain she had been suffering from did not get worse
as a result of this incident, even though she saw Dr. Parhar and her
massage therapist, Mr. Sidhu, shortly after this incident. Their clinical
notes indicate Ms. Jawanda mentioned she had slipped on the stairs.

[24]        
Ms. Jawanda testified that, even though she was in discomfort
because of the injuries she suffered in the motor vehicle accident, she
returned to picking blueberries with her mother-in-law in the summer of 2007.
Once again she worked hard and put in long hours. This time, however, she had
difficulty raising her arms to pick berries on the higher part of the shrubs.
She required assistance from her mother-in-law to do this part of the job.

[25]        
Ms. Jawanda testified that she was also incapable of lifting the full
baskets of berries and required further assistance from her mother-in-law to
perform this task. Mrs. Jawanda confirmed that she had to assist her
daughter-in-law in picking the higher berries and lifting and transporting the
full buckets of blueberries. She testified that her daughter-in-law complained
of pain in her neck, back and arms and that her hands were getting numb,
although there was no specific evidence as to when Ms. Jawanda complained to
her mother-in-law about numbness in her hands.

[26]        
Mr. Jawanda confirmed the testimony of his wife and said since the
accident she is fatigued and irritable, has lost weight and seems to be in
discomfort most of the time. He testified, “there seems to be always something.”

[27]        
He testified she still does some “household” activities, but he does
more housework now than he used to do, especially the vacuuming. They do not
attend the Temple as frequently as they did in the past because sitting on the
floor is “tough” for his wife.

[28]        
Mr. Jawanda testified that within one to three weeks after the accident
his wife said her shoulders, back and neck were sore and she developed
headaches. He testified that she complained of numbness and tingling in her
hands but he was unsure when this complaint was first made. He “believed” that
it was in the first year. He testified that he thought she complained of pain
in both hands but was not sure if there was constant pain.

[29]        
He testified that he believed that her complaints and symptoms were
worse in the first year following the accident, but she still complains of
“some neck pain.”

[30]        
Because of the difficulties Ms. Jawanda had in picking blueberries
and because the family needed her to work and earn income, she and her husband
discussed trying to find her less strenuous employment. As a result, she
obtained employment at the end of April or early May 2008 at an outdoor
vegetable market.

[31]        
This work, however, was very strenuous and repetitive, and resulted in
Ms. Jawanda needing the help of a co-worker to assist in lifting heavy
trays of vegetables, sometimes weighing 30 to 50 pounds, onto display shelves.
In addition, the work was outdoors and she needed to wash the vegetables and
fruit in cold water. This bothered her hands greatly. She testified the lifting
of the trays produced significant pain and discomfort in her arms and
shoulders. She said she was in “pain almost every day” while working at the
market.

[32]        
Her co-worker and neighbour Ms. Khangura confirmed this work
involved lifting heavy boxes of fruit and vegetables and that from time to time
the plaintiff could not pick up the boxes and would ask Ms. Khangura for assistance.

[33]        
Ms. Khangura confirmed that Ms. Jawanda was berated by her
employer because of her inability to work quickly and perform all aspects of
the job.

[34]        
Ms. Jawanda testified that, because of her inability to do all of
the work, coupled with the verbal abuse she received from her employer, she had
to leave this employment. She fortunately found work at a donut shop in Delta,
B.C. She has done well at this job as it is not as strenuous as her other
employment. There is no heavy lifting. Ms. Jawanda has been quite successful at
this job. In fact, in late 2011, she was promoted to supervisor. She says she
enjoys the job, she likes going to work and the people there treat her well.
However, she testified her pain “is still there” in her neck, back and shoulders,
and that some days are better than others. She also continues to experience
numbness in “both hands” as well as occasional headaches. The generality of
some of Ms. Jawanda’s evidence is illustrated by her statement that she
“never” goes a “week or a month” without a headache.

Medical Evidence

Dr. Parhar

[35]        
Dr. Parhar, Ms. Jawanda’s family doctor, saw Ms. Jawanda
two weeks after the motor vehicle accident. He confirmed that Ms. Jawanda
complained of soft tissue injuries to her neck, back and arms for which he
prescribed medication and massage therapy.

[36]        
He testified that at this first visit Ms. Jawanda did not complain of
headaches, even though she testified she had headaches a “few days” after the
accident. Ms. Jawanda testified she told Dr. Parhar of her headaches
in the fall of 2006.

[37]        
Dr. Parhar then saw Ms. Jawanda on July 30,
August 13, September 9, and November 4 and 11, 2006. He
confirmed that her complaints were generally the same, although on each
occasion there would be some difference in the specific area Ms. Jawanda
was saying was more painful than on a prior occasion.

[38]        
In November 2006, Dr. Parhar confirmed that Ms. Jawanda was
still complaining of back and neck pain.

[39]        
Dr. Parhar acknowledged that on November 11, 2006, there was
no reference to low back pain or shoulder pain. He did confirm there was
tenderness in the lower back and the neck region. He testified, “that’s
unchanged.”

[40]        
What is important to note, given the position of the plaintiff, is that
on November 4, 2006, Dr. Parhar noted that Ms. Jawanda
complained of pain in her left hand.

[41]        
Dr. Parhar testified:

So both on the March 16, 2008,
visit and the earlier one on November 4, 2006, she complained of pain in her
hand and, as I said, focused on the left fourth digit, and I thought there was
also some tenderness and swelling in that left hand, and this continued on the
visit of March 16, 2008, and I wasn’t sure exactly what was causing it. I
ordered some blood tests which — for arthritis and those turned out to be
negative, so I did blood tests after the March 16, 2008, visit for rheumatoid
arthritis and for lupus which are two conditions that might lead to hand pain.

[42]        
This evidence is significant because the plaintiff says the motor
vehicle accident caused her to now have thoracic outlet syndrome which has
caused numbness and swelling in her left fourth and fifth fingers. She
testified this is an ongoing problem for her.

[43]        
The defendants dispute the evidence of Dr. Parhar.

[44]        
The defendants say Dr. Parhar is an advocate for Ms. Jawanda
and the court should reject his evidence. They also say that he was not fair or
objective and his evidence should be given no weight.

[45]        
I do not agree with that assessment. I am satisfied Dr. Parhar was a
fair and candid witness who acknowledged the difficulty he had in diagnosing
Ms. Jawanda’s complaints. For example, when considering the joint pain in her
hand, Dr. Parhar acknowledged that “it didn’t really make a lot of sense
here.”

[46]        
Dr. Parhar confirmed that on the November 4, 2006, visit
Ms. Jawanda complained of neck and back pain and headaches as well as the
joint pain in her left fourth finger. He also testified that “on exam, I
thought the left fourth joint was swollen and quite tender, but she had full
range of motion and I just wrote it down and I had thought — or I made note in
my clinicals that I was going to send her for lab work.” Dr. Parhar testified
that:

… she’s coming in and she’s complaining
of left hand pain and I don’t know what’s causing it, so I order blood tests
and the blood tests come back negative. I still don’t know what’s causing it
and she’s complained of this now on two to three visits. I’m frustrated, she’s
frustrated. …”

Because of this uncertainty, in 2008 Dr. Parhar eventually
referred Ms. Jawanda to Dr. How, a rheumatologist, “to see if she could help
clarify that for me and the patient and hopefully treat it.”

[47]        
Dr. Parhar testified that after his visits with Ms. Jawanda in
2006 and in January and September 2007, he saw her on March 16, 2008 and
May 11, 2008. In his November 25, 2010 report, he noted, “on the most
recent visit of May 11, 2008, it is fairly clear that Satinder is still having
ongoing problems with her neck and back.” The defendants point out that on this
visit there was no reference to leg, arm or shoulder pain, even though at that
time Ms. Jawanda was engaged in strenuous duties at the fruit and
vegetable market. The defendants understandably invite the court to carefully
consider the comments made by Dr. Parhar in his second report on
November 25, 2010.

[48]        
At p. 5 of the 2010 report, Dr. Parhar states, “On these subsequent
visits, Satinder has continued to complain of back pain, neck pain and
headaches. She has also complained of pain in both legs, decreased sleep and
depressed mood.” The defendants say I should give no weight or very little
weight to Dr. Parhar’s evidence because there was no complaint of
headaches during the March and May 11, 2008, visits, only one of the
visits referenced back pain, nor was there any reference to decreased sleep or
depressed mood.

[49]        
However, when one reads that particular statement in light of the
preceding paragraph where Dr. Parhar noted the visits after the initial
visit of July 16, 2006, I am satisfied he is referring to all of the
subsequent visits after the motor vehicle accident up to May 11, 2008, not
just the March and May 2008 visits.

[50]        
Finally, the defendants note that at p. 6 of his 2010 report,
Dr. Parhar states:

At the current time, it is my
understanding that Satinder is unable to do heavier aspects of her day-to-day
household activities.

[51]        
The defence says that there is “no way” that Dr. Parhar could know
this because he had not seen or talked to the plaintiff in over two years. I am
satisfied that this does not in and of itself undermine Dr. Parhar’s
credibility as it is a reasonable inference that this was information he
received from other sources, given that at p. 3, he stated:

I have also relied and assumed to
be true, medical reports, clinical records and X-Ray reports.

[52]        
In his final report of July 17, 2012, Dr. Parhar noted the
following.

On the visit of June 19,
2012, Satinder complained of pain in her neck, in the right, left, and midline
regions. She also complained of lower back pain, which was located in the
right, left and midline regions of her lower back. She complained of right and
left hand numbness and aching. She had pain radiating into both her legs. While
she had headaches, she explained that they were better than she had noticed
previously. She continued to have difficulty falling asleep and remaining asleep.

[53]        
Dr. Parhar found there was reduced range of motion in some areas of her
spine and noticed tenderness to palpation. He then reported:

On the subsequent visit of
July 13, 2012 Satinder complained of ongoing neck pain on the right, left
and midline regions. She explained that the pain was worse on moving her neck
right and left. She continued to complain of pain in her lower back in the
right, left, and midline regions. She reported that she had continued to work
full time and full duties, due to her financial stresses.

[54]        
Dr. Parhar also referred to the report of Dr. How where she
noted Ms. Jawanda did not complain of neck, chest pain or joint pain when she
saw her in July 2008. Dr. Parhar agreed that Dr. How did not record
any symptoms of numbness or hand pain, just as he did not see any symptoms on
several visits by Ms. Jawanda.

[55]        
I therefore cannot agree with the defendants’ suggestion that
Dr. Parhar ignored Dr. How’s findings as to a lack of symptoms when
she examined Ms. Jawanda.

[56]        
Finally, in his July 17, 2012 report, Dr. Parhar for the first time
included post‑traumatic thoracic outlet syndrome as one of the
“conditions” that, in his opinion, resulted from the motor vehicle collision of
June 30, 2006.

[57]        
With respect to the diagnosis of post-traumatic thoracic outlet
syndrome, the defendants say Ms. Jawanda did not complain of hand pain or
numbness until some years after the motor vehicle accident. Indeed, in
cross-examination Ms. Jawanda said the tingling or numbness started “a
long time after the accident.” This again highlights the lack of specificity in
Ms. Jawanda’s evidence.

[58]        
However, I have already noted Dr. Parhar’s records indicate that:

Both on the March 16, 2008, visit
and the November 4, 2006 visit, she complained of pain in her left hand and, as
I said, focused on the left fourth digit, and I thought there was also some
tenderness and swelling in that left hand …

[59]        
Defendants’ counsel properly points out that, notwithstanding these
observations, Dr. Parhar did not mention in his reports of March 2008 and
November 2010 any hand or finger numbness, symptoms which would be
relevant to a diagnosis of thoracic outlet syndrome.

[60]        
While I appreciate the reasonableness of this submission, I am satisfied
it is also reasonable that Dr. Parhar did not at that point relate the
pain, swelling and numbness in the plaintiff’s left hand to the motor vehicle
accident. As such, this omission is not sufficient to reject his evidence on
this issue.

[61]        
Moreover, in lengthy and comprehensive cross-examination Dr. Parhar
denied that he was merely “parroting” Dr. Salvian’s opinion when Dr.
Parhar eventually diagnosed post-traumatic thoracic outlet syndrome.

[62]        
Dr. Parhar testified that upon reading Dr. Salvian’s report he
concluded, given Ms. Jawanda’s symptoms, that Dr. Salvian’s diagnosis was
reasonable. He testified it “finally” explained the symptoms in
Ms. Jawanda’s hand, and “that sort of actually makes sense because that
would — that would explain her clinical presentation.”

[63]        
Dr. Parhar also commented on the potential impact of Ms. Jawanda’s
slipping on the living room stairs. He testified that:

… typically for thoracic outlet syndrome we’re expecting
some sort of trauma to the chest in motor vehicle collisions when you have some
sort of back and forth motion that sort of puts pressure on the chest, again
scaffolding where somebody’s having their arm wrenched. If somebody falls onto
their bum, onto their buttocks and then has her hands out, I can’t see how the
forces would be transmitted up into the upper chest very easily.

… I wouldn’t expect trauma to
that part of the thoracic outlet.

[64]        
In cross-examination Dr. Parhar agreed that thoracic outlet
syndrome is a “very controversial diagnosis” because:

… the symptoms fluctuate,
because the physical exam findings aren’t always consistent and always clear
what they mean, and then the tests themselves, the investigations we send the
patients for aren’t always conclusive. So in my mind it’s quite — and that’s
why earlier this morning we asked about how many times I’ve diagnosed it. I’m
very careful and cautious diagnosing it just because there’s a lot of
uncertainty around it. So for those reasons I would say it’s controversial.

[65]        
Defendants’ counsel asked Dr. Parhar if he could say “one way or the
other” whether Ms. Jawanda’s thoracic outlet syndrome was caused by the
motor vehicle accident. Dr. Parhar replied:

… you know, medicine is much
more an art than a science, and what I mean by that is we will not have
definitive black and white tests for a lot of things that we have to manage.
And so the diagnosis and the management – you’re absolutely right, there could
be eight or ten explanations. We just have to go with the best one that we
have.

He then
testified:

I can say that she was not
symptomatic beforehand and was symptomatic afterwards. I can say that the
mechanism of injury fits with the muscles and ligament injuries of the neck or
back, the headaches, and would be in keeping with a traumatic thoracic outlet
syndrome otherwise I wouldn’t have listed it.

[66]        
Finally, Dr. Parhar concluded that even though Ms. Jawanda had
a predisposition for thoracic outlet syndrome because of her cervical rib:

In her case, and I have a note to
this effect, is that she was completely asymptomatic beforehand. So while she
would’ve been — while she could’ve been predisposed to getting it, it’s the
but for thing, is that if it hadn’t been for the motor vehicle collision, there
is no reason to think that she would have ever developed thoracic outlet
syndrome or she would have had to have some other trauma that I don’t know
about that would have caused it.

[67]        
Given the totality of the evidence, I accept that Dr. Parhar is a
credible, fair-minded expert who is not advocating on behalf of the plaintiff
in this litigation. I accept his evidence and his opinions that the symptoms
Ms. Jawanda still exhibits from time to time were caused by the motor vehicle
accident.

Dr. How

[68]        
Dr. How saw the plaintiff on July 4, 2008. She testified she
noted that Ms. Jawanda had been complaining of pain and swelling in all
her fingers approximately eight months prior to her examination, consistent
with Dr. Parhar’s testimony and records.

[69]        
At the time, the plaintiff did not complain of any neck or back pain.
Dr. How also made note that Ms. Jawanda did not say she suffered from
fatigue or headaches.

[70]        
Dr. How saw Ms. Jawanda again in November 2008. Dr. How
testified that according to her notes Ms. Jawanda had no symptoms of joint
pain in her fingers. She also testified that when she asked whether
Ms. Jawanda had neck pain or chest pain, she was asking the question in
general and not specifically relating to her pain at that moment. Dr. How
made another appointment for Ms. Jawanda in January 2009 because she was
interested in whether the cold weather would promote symptoms of pain in her
fingers, but the plaintiff or her husband cancelled that particular
appointment.

[71]        
The defendants say the evidence of Dr. How is significant and
contradicts Ms. Jawanda’s testimony when she says she was suffering from intermittent
and chronic pain. The defendants say that the explanation given by
Ms. Jawanda that she might have been feeling well that day or only having
minor pain should not be considered credible, given the observations of
Dr. How and the lack of complaints of pain by Ms. Jawanda at that
time.

[72]        
When confronted with Dr. How’s observations, Ms. Jawanda
testified in cross-examination, “I think I said, today I am not in pain.” She
did not recall if Dr. How asked her if she had headaches.

[73]        
Ms. Jawanda testified that she went to see Dr. How because of her
“swollen hand.” She testified that she did not tell Dr. How about pain in
her neck, shoulders and back and explained that her pain is intermittent. When
counsel suggested to her that she did not have constant pain for “years”, she
testified, “sometimes I have pain, sometimes not.”

Dr. Hershler

[74]        
Dr. Hershler is a physiatrist with specialty training in internal
medicine and physical medicine. He has been practicing since January 1985. He
testified that most of his practice is “chronic injury, chronic pain, and
chronic neurological symptoms.”

[75]        
Dr. Hershler examined Ms. Jawanda in October 2010. At that
point, she reported to Dr. Hershler that she continued to experience neck
and low back pain. In his report he stated:

The history and physical findings
are consistent with mechanical low back pain that appears to be localized to
the lumbar-sacral junction. There is evidence of misalignments of the pelvis
during forward bending. The injury is probably ligamentous, as well as probably
in the facet joints. Ms. Jawanda also has a soft-tissue injury to the neck
and shoulders, where the injury patterns are in muscle only.

[76]        
Dr. Hershler noted that Ms. Jawanda “continues to complain of
intermittent pain in the neck and low back.”

[77]        
Dr. Hershler described intermittent pain by saying, “It’s not
constantly there, but it — it occurs as episodes depending on certain
postures, movements, triggers, mechanical loads.” He then went on to testify,
“My sense was that it was a daily occurrence, but it wasn’t there all the
time.”

[78]        
Dr. Hershler clarified the notion of intermittent pain when he
stated:

Chronic pain is — is — or pain
as it extends doesn’t necessarily extend in a completely rigorous linear
fashion and there can be periods of time where people can feel relatively no pain
and other times where the pain can be extreme, so one often sees cyclical
patterns.

[79]        
Defendants’ counsel emphasized that Dr. Hershler noted
Ms. Jawanda told him she only had headaches during the last year, that is,
in 2009 and early 2010. Ms. Jawanda testified she did not advise
Dr. Hershler of “tingling” in her arms because she “did not have any that
day.”

[80]        
When asked why she apparently told Dr. Hershler she only had
headaches in the year preceding her visit to him, Ms. Jawanda said, “it’s
hard to remember.”

[81]        
In response to a direct accusation by defendants’ counsel,
Ms. Jawanda testified, “I am not lying.”

[82]        
Dr. Hershler concluded his report by stating:

Ms. Jawanda continues to experience mechanical low back
pain, as well as soft tissue pain of the neck and shoulders even though over
four years have elapsed since the accident. This is consistent with the
diagnosis of a chronic injury.

Given this history, it is unlikely that her symptoms will
resolve of their own accord. It is more likely than not that she will have to
deal with her symptoms on an ongoing basis.

At this stage, the chronicity of
her symptoms is such that Ms. Jawanda has a partial disability.

Mr. Sidhu’s Evidence

[83]        
Mr. Sidhu treated the plaintiff in the first few months after the
motor vehicle accident. Ms. Jawanda first saw Mr. Sidhu on
July 21, 2006. The defence points out that at that time
Ms. Jawanda did not complain to Mr. Sidhu about any headaches. This
is consistent with Dr. Parhar’s notes.

[84]        
The defendants, quite understandably, emphasize that it would appear
from Mr. Sidhu’s notes that each time Ms. Jawanda visited for massage
therapy, she was having less pain and improved range of motion. Mr. Sidhu
noted that on the visit of September 28, 2006, he recorded that
Ms. Jawanda stated she was having “minor pain occasionally.” Finally,
prior to her slipping on the living room stairs in January 2007, Mr. Sidhu
noted on October 11, 2006, that Ms. Jawanda was having “very minimal” pain,
“if at all.” He did, however, note “occasional” mid-back pain.

[85]        
Nevertheless, Ms. Jawanda testified that she stopped attending
massage therapy because it provided only temporary relief. She said she was
still in pain after receiving massage treatment and it was of no lasting
benefit. The defendants submit this is in direct contradiction to the clinical
notes of Mr. Sidhu.

Dr. Salvian

[86]        
The plaintiff was assessed by Dr. Anthony Salvian, a thoracic
surgeon with many years of experience with thoracic outlet syndrome. He saw
Ms. Jawanda on April 4, 2012, and provided a report dated
May 24, 2012.

[87]        
In his report, Dr. Salvian said:

It is my opinion that the
accident as described to me was of more than enough trauma to [describe] the
flexion extension type injury which would damage the scalene muscles and lead
to post traumatic brachial plexus irritation.

He further describes Ms.
Jawanda’s specific condition:

In Ms. Jawanda’s case we know
that she has bilateral cervical ribs which are one of the anatomic variants
that make her susceptible to developing post traumatic thoracic outlet syndrome
when there is injury to the scalene muscles.

[88]        
After considering his clinical findings and upon reviewing the medical
documentation, Dr. Salvian concluded Ms. Jawanda had headaches and
bilateral neck pain and numbness, tingling and pain radiating down the left
shoulder and arm into the hand and fourth and fifth fingers.

[89]        
As a result, at p. 24 he concluded that Ms. Jawanda “has a chronic
pain syndrome. It is unlikely that her myofascial neck pain will resolve and it
will tend to be exacerbated by activities.”

[90]        
He then went on to state:

With respect to her thoracic
outlet syndrome, it is now a permanent injury to the scalene muscles in an
already compromised thoracic outlet due to her congenital cervical ribs. It is
my opinion that Ms. Jawanda’s symptoms are unlikely to change or improve
but it is my opinion that the symptoms of numbness and tingling and
paresthesias would get worse if she was forced to overdo it or continue to do
heavy activities which exacerbated her symptoms. This would lead to more
chronic muscle and nerve injury and more prolonged pain.

[91]        
As with Dr. Parhar’s evidence, the defendants submit little weight
should be given to Dr. Salvian’s opinion, again on the basis that he is an
advocate on behalf of the plaintiff.

[92]        
The defendants submit that Dr. Salvian failed to take into account
the effect of the fall down the three steps on January 5, 2007, and how this
could have affected his conclusion as to causation, even though he was aware of
that slip and fall.

[93]        
The defendants also say Dr. Salvian did not note or discuss
Dr. How’s findings, nor did he consider the observations of
Mr. Sidhu.

[94]        
Moreover, the defendants said that Dr. Salvian’s diagnosis did not
take into account the plaintiff’s difficult, labour-intensive work at Calvin
Farms as being a possible cause of her thoracic outlet syndrome.

[95]        
As a result, the defendants say that Dr. Salvian did not give his
evidence in an objective, unbiased manner. Again, I do not agree with this
submission. Given the totality of the circumstances, I am satisfied
Dr. Salvian was a forthright witness who acknowledged that there was no
certainty with respect to the cause of the thoracic outlet syndrome and
provided a balanced and fair opinion.

[96]        
For example, when Dr. Salvian was asked in cross-examination whether
the fall in the living room “might have triggered the thoracic outlet syndrome,”
he fairly responded, “I think that anything like that could — could do it.”

[97]        
However, Dr. Salvian then went on to testify:

… Well I mean, it certainly
potential it could exacerbate it if she injured her neck significantly at the
time and if she’s suffered that type of flexion-extension injury, but I mean
you — I don’t know if it’s appropriate to say, that would– you would have to
ignore the fact that she’d just been in a car accident six months earlier.

[98]        
Dr. Salvian discussed in his testimony Dr. How’s report, but
would not agree with the defendants that when Dr. How noted
Ms. Jawanda did not complain of neck, back or chest pain, that that in and
of itself could undermine his diagnosis that the motor vehicle accident caused
the thoracic outlet syndrome.

[99]        
Dr. Salvian stated, “As I have said before, patients can have
intermittent symptoms.”

[100]     Moreover,
Dr. Salvian testified, “I found no evidence that there was an examination
for thoracic outlet syndrome or any examination of the neck or any examination
of the head.”

[101]     The
defendants put to Dr. Salvian the testimony and report of Dr. Hershler who
wrote that Ms. Jawanda told him that her headaches only developed some
time in 2009, and as a result that did not fit in “with your diagnosis that the
motor vehicle accident is the cause for her thoracic outlet syndrome.”

[102]    
Dr. Salvian acknowledged, “It’s a piece that doesn’t fit into the
puzzle,” but then testified:

Well, I think what it speaks to
is — is Ms. Jawanda’s understanding of why she perhaps is there or what
people are doing, because we know that she was telling her doctor and her
doctor has written that she had continued problems with neck pain and headache
at virtually the same time. So I — the fact that she may not have told
Dr. Hershler about her headache, I don’t — I don’t know what to make of
that. She certainly was telling her family doctor about her headache and she
didn’t go to see Dr. Hershler about …

[103]    
Dr. Salvian said his understanding of the medical evidence was that
Ms. Jawanda was having ongoing headaches as described by Dr. Parhar
and concluded:

Well that’s clearly an incorrect
statement that she has — I think that speaks to her — her– her history
giving, because we know that she was on — having ongoing headaches as
described by her family doctor.

[104]     When
counsel put to Dr. Salvian that because Dr. Hershler did not find
restricted range of motion and no other symptoms consistent with
Dr. Salvian’s diagnosis of thoracic outlet syndrome, that “those findings
don’t fit into a diagnosis of thoracic outlet syndrome,” Dr. Salvian
testified, “patients only get their symptoms with elevation of the arms. They
don’t have permanent damage to the nerves, so their reflections are almost
always normal as is their motor examination.” He also testified that it
appeared Dr. Hershler did not examine specifically for thoracic outlet
syndrome.

[105]    
Dr. Salvian noted at the conclusion of his report, “I acknowledge
that Ms. Jawanda’s history is somewhat complex,” but testified that:

The fact that she had a
significant history consistent with thoracic outlet syndrome, the finding of
the cervical ribs, and tenderness over the brachial plexus, and the fact that –
that she couldn’t keep her arms up in the air were all consistent with the
diagnosis of thoracic outlet syndrome.

Dr. Salvian then testified:

And my rationale for saying that
I thought that the motor vehicle accident was involved was number — as I’ve
put in the — the facts and assumptions, is that, number one, this is not an
uncommon thing to have following a flexion — extension injury of the neck.
Number two, she has a propensity to develop thoracic outlet syndrome, she has
bilateral large cervical ribs. Number three, she was — became much more
sedentary. When she tried to become more active, she had somebody else do those
things for her when she went berry picking, which seemed a legitimate
discussion with me. So I felt that, based on that sequence of events, that when
she finally started to do her thing, she became more symptomatic.

[106]     Dr.
Salvian also agreed with defendants’ counsel that the two most common
mechanisms of neck injury are automobile accidents, which result in
hyperextension and neck injuries, and repetitive stress injuries.

[107]     He
testified that the only evidence that would “impair” his opinion on causation
would be if the plaintiff “didn’t have any numbness, tingling or paresthesias
or pain in her hands.” He then stated, “that’s the diagnosis of thoracic outlet
syndrome.”

[108]     Finally,
Dr. Salvian acknowledged that the only “question mark” in his diagnosis
was that “it appeared that the symptoms were delayed in onset.” He stated,
however, that if the reporting by the plaintiff as to her symptoms was valid,
he would maintain his diagnosis that the thoracic outlet problems she now
suffers from were caused by the motor vehicle accident.

[109]    
With respect to the delay in the onset of her symptoms, Dr. Salvian
noted before the accident Ms. Jawanda had no difficulty in extending her
arms, reaching over her head to pick berries and lift heavy baskets of
blueberries. In cross-examination, Dr. Salvian considered whether the berry
picking after the accident or the strenuous activities at the fruit and
vegetable farm were more probable causes for “her complaints of thoracic outlet
syndrome than a motor vehicle accident.” He then testified:

… she did all these things
before she had her car accident and had no symptoms that I — that she told me
about or that was documented of numbness, tingling or paresthesias, or any
symptoms from her cervical ribs and — or thoracic outlet syndrome prior to the
car accident. She was involved in a car accident and, although she may have
been berry picking, and if I am wrong, then – then I stand to be corrected, but
she told me that she had to have somebody help her do the heavy stuff and that
she couldn’t do it, and that when she went to the job that required her to use
her arms overhead and do the heavy lifting, in fact she eventually had to quit
because they [sic] felt they were harassing her because she couldn’t do the
stuff when she couldn’t work fast enough.

Dr. Salvian further testified:

You’re talking about diagnosis.
Now we’re talking about causation. I think that it — it does make it — the
causation more problematic. Normally you would see those symptoms within a few
weeks to months of the accident. I’ve seen it up to a year. This would be
longer, and I — as I tried to express, you have to consider that she has the
diagnosis. I was confident she had a diagnosis of thoracic outlet syndrome. I
was asked about the possible causes. She was in a motor vehicle accident, she
had no symptoms beforehand. Following the motor vehicle accident, she developed
these symptoms, albeit they seem to be prolonged in their onset.

He then stated:

Hence, I felt that it was —
unlike now, I would not argue that once the syndrome has developed, those
activities — once the thoracic – the thoracic outlet has been altered by the
trauma, that you – that — that those things would certainly bring out her
symptoms and make her worse. But that was my reasoning as to the fact that
she’d had the architectural injury at the time – at the time of the motor
vehicle accident in a pre — person who was predisposed to develop thoracic
outlet syndrome. So that’s the rationale for my statement.

[110]     Given the
totality of Dr. Salvian’s evidence and his report, I am satisfied there is
convincing evidence to explain the delay in the onset of the thoracic outlet
symptoms.

[111]    
In his report, Dr. Salvian further stated:

It is my experience that patients have variable symptoms
related to their thoracic outlet syndrome depending on the degree of muscle
spasm and how active they have been.

…

Based on these facts and
assumptions of fact, then, it is my opinion that Ms. Jawanda’s symptoms of
numbness, tingling and paresthesias in the left more than the right arm, as well
as her symptoms of her arms “falling asleep” at night, are caused by symptoms
of post traumatic thoracic outlet syndrome with intermittent compression of the
nerves of the brachia plexus and occasional the subclavian artery in the
thoracic outlet.

[112]     When considering
causation, the plaintiff must prove that the defendants’ negligence caused or
contributed to her injuries. The test for causation is whether the plaintiff’s
injuries would not have occurred “but for” the defendant’s negligence (Athey
v. Leonati, [1996] 3 S.C.R. 458, paras. 14 and 16). Applying this test in
light of the medical evidence, I agree with the opinions of the medical
professionals that the motor vehicle accident was the cause of Ms. Jawanda’s
soft tissue injuries and her thoracic outlet symptoms.

Credibility

[113]     When
determining the amount of non-pecuniary damages to which the plaintiff is
entitled, the defence says I should not find the plaintiff a credible witness
and as a result any award for non-pecuniary damages should be modest.

[114]    
The defence reminds me of the following comments by McEachern C.J.S.C.
in Price v. Kostryba at para. 2, quoting Andrews v. Grand & Toy
Alta. Ltd., [1978] 2 S.C.R. 229:

In assessing damages for personal
injury, the focus should be on the injuries of the innocent party. Fairness to
the other party is achieved by insuring that the claims against him are
legitimate and justifiable.

And at para. 6 McEachern
C.J.S.C. went on to say:

The court should be exceedingly
careful when there is little or no objective evidence of continuing injury and
when complaints of pain persist for long periods extending beyond the normal or
usual recovery.

[115]    
At the same time, the comments of N.H. Smith J. in Carvalho v.
Angotti, 2007 BCSC 1760, are also helpful and relevant. He says at para. 15:

The attack on
the plaintiff’s credibility is based, in part, on various contradictions and
inconsistencies within her evidence at trial and between that evidence and her
discovery evidence, documents she prepared for other purposes, or statements recorded
in clinical records.  It is a rare case of this kind where such inconsistencies
cannot be found. By the time a personal injury case gets to trial, the
plaintiff typically will have provided information to a number of people –
including doctors, adjusters and disability insurers – on a number of occasions
over a period of years. This provides fertile ground for cross-examination
precisely because very few people will have perfect and identical recollection
on each of those occasions.

He then
states:

The record created on many of those earlier
occasions may consist of answers a plaintiff gave to questioners who were
primarily interested in only part of what the plaintiff had to say. For
example, a doctor treating a plaintiff for a specific injury may seek only very
general information about aspects of the plaintiff’s medical history unrelated
to the injury that doctor is treating.  The information recorded may only be a
brief summary or paraphrase of what the plaintiff said. The plaintiff will
usually have no specific recollection of what he or she said on that occasion,
but, when confronted with the record on cross-examination, will usually agree
with the suggestion: “That is what you told Dr. X, isn’t it?” The danger of
giving too much weight to such inconsistencies was noted by Parrett J. in Burke-Pietramala
v. Samad, 2004 BCSC 470, at paragraph 104:

 I make two observations at the
outset about Dr. Keyes’ criticism for the variations he finds exist in the
versions of symptoms given to various doctors. First of all, the reports are
those of a layperson going through a traumatic and difficult time and one for
which she is seeing little, if any, hope for improvement. Secondly, the
histories are those recorded by different doctors who may well have had different
perspectives and different perceptions of what is important. As Dr. Samad
made very clear his chart and records were a long way from being a verbatim
record, indeed, some of his entries from a full appointment and an examination
consisted of three or four phrases. I find little surprising in the variations
of the plaintiff’s history in this case, particularly given the human tendency
to reconsider, review and summarize history in light of new information.

[116]     I adopt
these observations when considering the inconsistencies in Ms. Jawanda’s
numerous statements to the various medical professionals she has spoken to over
the last several years.

[117]     Given the totality
of the evidence and even though there was inconsistent reporting from time to
time, I accept the evidence of Ms. Jawanda. I am satisfied she was a
credible witness who attempted to provide an accurate description of her
symptoms to the various medical practitioners she saw over a considerable
period of time. Given Ms. Jawanda’s language difficulties and the medical
opinions confirming chronic pain and thoracic outlet syndrome symptoms can be
variable, I have concluded her inconsistent reporting should not undermine her
overall credibility.

[118]     As
Dr. Parhar testified, “she’s pretty consistent about neck pain and she’s
pretty consistent about back. Now, sometimes it’s mid-back and lower back, but
she’s pretty consistent about the neck and the back.”

[119]     I accept
Ms. Jawanda’s evidence when she describes the injuries she says she
suffered in the accident and the pain and discomfort she still has from time to
time, depending on what particular activity she might be doing on any given
day.

[120]     For the
same reason, when I consider the clinical notes of Mr. Sidhu, I am satisfied
his observations of minimal pain on Ms. Jawanda’s last two visits are
because of the intermittent nature of her symptoms, rather than a full recovery
as of that point in time, as was suggested by the defendants.

[121]     In
addition, I accept Ms. Jawanda’s explanation as to why she did not see any
doctors from June 2008 to June 2010, apart from Dr. How.

[122]     Defendants’
counsel put to Ms. Jawanda that the reason she did not return to
Dr. Parhar, even though she testified she was still experiencing neck and
back pain, was because “there was nothing wrong with you.” Ms. Jawanda
disagreed and said she took Advil and walked and stretched as advised by
Dr. Parhar so felt there would be little more he could do for her. She
also explained it was difficult to make an appointment with Dr. Parhar and
the family had no second car at that time. She also testified that she went to
work “in pain” because she did not want to lose her job as the family needed her
income.

[123]     I accept
Ms. Jawanda’s explanation that she was doing what Dr. Parhar told her she
needed to do and was resigned to experiencing pain and discomfort. Therefore,
there was no need to attempt to schedule regular visits with Dr. Parhar or
any other general practitioner.

Non-Pecuniary Damages

[124]     The
purpose of an award for non-pecuniary damages is to compensate the plaintiff
for pain and suffering, disability and loss of enjoyment of life. What is a
fair award must be assessed for both losses suffered by the plaintiff to the
date of trial and for those she will suffer in the future.

[125]    
In Stapley v. Hejslet, 2006 BCCA 34, the court outlined factors
that should guide a court in awarding non-pecuniary damages. These include the
following:

(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 (a
factor that should not, generally speaking, penalize the plaintiff).

The Defendants’
Position

[126]     The
defendants say that the pain and suffering caused by the motor vehicle accident
resolved within several months of the accident. The defendants therefore say
there should only be a modest award for non-pecuniary damages.

[127]     In support
of this submission, the defendants rely on the following cases:

 Kingsfield
v. Powers, 2012 BCSC 526;

  Darji v.
Regimbald, 2006 BCSC 834; and

  Wild
v. Toth, 2004 BCSC 1449, [2004] B.C.J. 2318.

[128]     In each of
these cases the plaintiffs suffered whiplash type injuries to the back and neck,
as well as headaches. The plaintiff’s injuries resolved within approximately
six to twelve months. In each case the court awarded $12,000 in non-pecuniary
damages. The defendants say Ms. Jawanda should receive $12,000 in
non-pecuniary damages.

The Plaintiff’s Position

[129]     The
plaintiff submits that the evidence has established on a balance of
probabilities that Ms. Jawanda has a permanent partial disability because
of her neck and back injuries and injuries to structures in her thoracic
outlet. Even though Ms. Jawanda testified she has had no pain or swelling
in her hands since late November 2008, she still has numbness and tingling in
her hands, with the left hand generally more symptomatic.

[130]     The
plaintiff submits that her evidence has established that these injuries have
affected her daily life as well as her ability to work to full capacity. She
further says her ability to fully participate in family life, including
recreational activities with her husband and children, has been compromised
when compared to what she was capable of prior to the motor vehicle accident.

[131]     The
plaintiff testified that the pain and discomfort she suffers from as a result
of the accident has affected her relationship with her husband and children and
to a certain extent other members of the family by not being able to shop and
socialize as she once was able to do.

[132]     In
addition, the medical evidence consistently supports the conclusion that if I
accept the evidence of Ms. Jawanda as to her symptoms, then her progress
for complete recovery is not good and she does suffer from chronic pain.

[133]     The
plaintiff says that, given the totality of the evidence, there should be a
relatively significant award for non-pecuniary damages. The plaintiff says that
non-pecuniary damages in the amount of $90,000 would be fair and reasonable.

[134]     In support
of her submissions, the plaintiff relies on the following cases:

 Cimino
v. Kwit, 2009 BCSC 912, [2009] B.C.J. 1348;

  Foran
v. Nguyen, 2006 BCSC 605, [2006] B.C.J. 921;

  Killian
v. Valentin, 2012 BCSC 1434;

  Knight
v. Belton, 2010 BCSC 1305;

  Lamont
v. Stead, 2010 BCSC 432;

  Lee
v. McLean, 2010 BCSC 734; and

  Stapley v. Hejslet, 2006 BCCA 34.

[135]     As was the
case in Cimino, I accept Dr. Salvian’s conclusion that
Ms. Jawanda has thoracic outlet syndrome. This is in addition to the
soft-tissue injuries that from time to time she still suffers from according to
her testimony and her reporting to the medical practitioners.

[136]     Once again
the defendants stress the fact that Ms. Jawanda has been working regularly
since her return to blueberry picking in 2007. The plaintiff acknowledges that
she returned to the workforce in 2007 but picking berries caused her discomfort
and was significantly more difficult than it was in the past. Fortunately for
the plaintiff she has obtained a supervisory role at the Krispy Kreme doughnut
establishment in Delta which she is able to perform without significant
difficulties because of the lighter duties involved in her supervisory
capacity.

[137]     However, approximately
six years after the accident she still suffers from pain and discomfort.

[138]     On the
other hand, I agree with the defendants that the symptoms Ms. Jawanda
exhibits are not as significant as might otherwise be the case given the
intermittent nature of these symptoms and the fact that throughout the last
six-plus years her pain and discomfort receded significantly from time to time
as noted by her massage therapist when, in late 2006, there was only “mild
pain” reported by the plaintiff. In fact, in cross-examination, Ms. Jawanda
acknowledged that after she stopped getting massage therapy, she continued to
have “minor pain, not major.”

[139]     The
defence also urges me to consider the very small amount of over-the-counter
anti-inflammatory medication Ms. Jawanda has taken since the motor vehicle
accident. While this in and of itself does not undermine her credibility, it is
a relevant factor when considering the severity of her pain and should be taken
into consideration in determining what is a fair and reasonable award for
non-pecuniary damages. As such, Ms. Jawanda’s circumstances are less severe
than the plight of Ms. Cimino who, in the case relied on by the plaintiff,
required “significant pain medication” on a daily basis to control her pain.

[140]    
Similarly, when defendants’ counsel suggested to Dr. Parhar that if
Ms. Jawanda has thoracic outlet syndrome, it is “fairly mild”, Dr. Parhar
testified:

It fluctuates I think is probably
more accurate than calling it mild because it goes up and down and there’s
times where she’s complaining of the pain in her hand, there’s the times she
doesn’t have it at all.

[141]     Dr. Parhar
also wrote in his July 17, 2012, report that “as her pain symptoms have started
to come under better control, she has been trying to engage more fully in her
family activities.”

[142]     On this
point, Dr. Salvian concluded in his report that:

It is my opinion that the
myofascial neck and back pain has been her major complaint. It is my opinion
that the thoracic outlet symptoms of numbness, tingling and paresthesias into
the hand and fingers, have been controlled since she simply does not do any of
the activities with her arms, i.e. heavy lifting or repetitive activities that
would bring these symptoms on.

[143]     Balancing
all of the evidence I have accepted, I find Ms. Jawanda suffers from mild to
moderate chronic pain and thoracic outlet syndrome. Coupled with the
authorities referred to by counsel, I am satisfied a fair and appropriate award
for non-pecuniary damages is $75,000.

Loss of Future Earning Capacity

[144]     The
plaintiff says that because of the injuries she suffered in the motor vehicle
accident and the fact that she now suffers from a partial permanent disability
as well as chronic pain, her future earning capacity has been negatively
affected. The plaintiff submits she is entitled to compensation because of this
loss of future earning capacity.

[145]    
It is well settled that the court must enter into the realm of “crystal
ball gazing” to determine impairment of future earning capacity. As
Cumming J.A. said in Parypa v. Wickmare, 1999 BCCA 88, at
para. 62:

It is clear that this determination is not a precise or
mechanical exercise. The difficult and inherently uncertain task of predicting
the future is described in the following oft quoted passage by Dickson J.
in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251:

 We must now gaze more deeply
into the crystal ball. What sort of career would the accident victim have had?
What were his prospects and potential prior to the accident? It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: The Queen v. Jennings, supra. A capital asset has been
lost: what was its value?

Justice MacKenzie said at
para. 89 in Romanchych v. Vallianatos, 2009 BCSC 669, aff’d 2010
BCCA 20 (“Romanchych”):

The future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation: Athey v. Leonati, [1996]
3 S.C.R. 458, 140 D.L.R. (4th) 235 at para. 27.

[146]    
The defendants submit that Ms. Jawanda has not proven a claim for
reduced earning capacity. The defendants acknowledge the opinions of
Dr. Gouws, an occupational physician, and Ms. Craig, a functional
capacity evaluator, but submit their findings are “skewed” by the fact that the
plaintiff engaged in very physically demanding work at the Calvin Market
vegetable stand without taking time off or seeking medical treatment. Moreover,
the defendants say the fact that Ms. Jawanda has continued to work at the
Krispy Kreme establishment without interruption and without having to seek
treatment undermines her claim that she has suffered a real and substantial
likelihood of a loss of future earning capacity. However, as our Court of
Appeal said in Perren v. Lalari, 2010 BCCA 140, at para. 32:

… A plaintiff may indeed be
able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment. That was the
case in both Pallos and Parypa.

[147]     Conversely,
the plaintiff says that the evidence has established that there is a real and
substantial possibility that Ms. Jawanda has been rendered less capable
overall from earning income from the type of physically demanding employment
that she is suited to and is therefore less attractive as an employee to
potential employers. She is now restricted from future job opportunities which
require strenuous physical labour and as a result is less valuable as a person
capable of earning income in a competitive labour market.

[148]    
As Huddart J.A. said in Rosvold v. Dunlop, 2001 BCCA 1:

8.  … An award for loss of earning capacity
is based on the recognition that a plaintiff’s capacity to earn income is an
asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155
(C.A.). Where a plaintiff’s permanent injury limits him in his capacity to
perform certain activities and consequently impairs his income earning
capacity, he is entitled to compensation. What is being compensated is not lost
projected future earnings but the loss or impairment of earning capacity as a
capital asset. In some cases, projections from past earnings may be a useful
factor to consider in valuing the loss but past earnings are not the only
factor to consider.

9.  Because damage awards are made as lump
sums, an award for loss of future earning capacity must deal to some extent
with the unknowable. The standard of proof to be applied when evaluating
hypothetical events that may affect an award is simple probability, not the balance
of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458. Possibilities
and probabilities, chances, opportunities, and risks must all be considered, so
long as they are a real and substantial possibility and not mere speculation.
These possibilities are to be given weight according to the percentage chance
they would have happened or will happen.

10.  The trial judge’s task is to assess the loss
on a judgmental basis, taking into consideration all the relevant factors
arising from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128
(S.C.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what
factors may be relevant can be found in Parypa v. Wickware, supra,
at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

 1.         whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

 2.         whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

 3.         whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to him, had he not been injured; and

 4.         whether the
plaintiff is less valuable to himself as a person capable of earning income in
a competitive labour market.

[149]     Dr. Gouws
reported, because Ms. Jawanda’s workplace experience has been limited to mostly
entry-level jobs with a “fairly narrow set of skills,” it was his opinion “that
Ms. Jawanda is not as competitively employable in the open job market as she
would have been, absent the accident of June 30, 2006.”

[150]     I agree
with plaintiff’s counsel that the evidence has established a real and
substantial possibility that Ms. Jawanda’s ability to earn income in the
future has been put in jeopardy by her ongoing physical limitations because of
the injuries she suffered in the motor vehicle accident. Her earning capacity
has been diminished because her ability to maintain full-time steady employment
in the future is impacted by her present inability to compete for physically
demanding labouring jobs that she is suited to, given her past work experience and
her difficulties with the English language.

[151]     The work
Ms. Jawanda is able to perform focuses on physical labour. I am satisfied her
injuries have precluded her from being able to work in the future in some
physically demanding occupations. She is entitled to be compensated for this
loss of future earning capacity.

[152]     At the
same time, it is also necessary to acknowledge the potential for various
positive and negative contingencies occurring over the working career of any
plaintiff. These include potential improvements in health, opportunities for
advancement, decline in the economy and loss of employment and layoffs as well
as the usual chances and hazards of life (see Trites v. Penner, 2010
BCSC 882 at para. 228).

[153]     The
assessment for loss of future earning capacity requires the trier of fact to make
what Finch J. (as he then was) termed in Brown a “rough and ready”
valuation, and similarly precludes the trier of fact from attempting a
formulistic mathematical calculation (Romanchych, 2010 BCCA 20 at
para. 13).

[154]    
In fact, Groberman J.A. has recently said in Bradshaw v. Matwick,
2011 BCCA 111 at para. 33:

As this Court has noted on many
occasions, an assessment of future income loss is an exercise in judgment and
assessment, and not a mathematically precise calculation – see Parypa
v. Wickware, 1999 BCCA 88 particularly at para. 36. …

[155]    
In Morris v. Rose Estate (1996), 75 B.C.A.C. 263, 23 B.C.L.R.
(3d) 256 (C.A.), Donald J.A. said at para. 28:

… it is the judge’s sense of
what is fair compensation that matters. There is much more art than science in
the process.

[156]     As in Pallos,
the plaintiff continues to work full-time and in fact is making more per hour
than she was prior to the motor vehicle accident. However, this does not
preclude an award for future loss of earning capacity. Considering the totality
of the medical evidence, I am satisfied that Ms. Jawanda has limitations
to future employment opportunities because of her accident-related injuries.

[157]     In these
circumstances, the plaintiff submits $90,000 to $125,000 would be a fair and
reasonable assessment, which, as noted in Rosvold, is the overriding
principle.

[158]     Given the
totality of the circumstances and taking into consideration the various
contingencies that I have referred to, I am satisfied that a fair and
reasonable award for loss of future earning capacity would be $90,000.

Cost of Future Care

[159]    
The Court of Appeal recently considered this head of damages in Gignac
v. Rozylo, 2012 BCCA 351, and stated:

[29]      The purpose of the award for costs of future care
is to restore, as best as possible with a monetary award, the injured person to
the position he would have been in had the accident not occurred.

[30]      The award is “based on
what is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff: (Milina  v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008
BCCA 420 at para. 41.

[160]     In support
of this submission the plaintiff relies on Dr. Gouws’ report.

[161]    
At p. 29 of his report under the heading “Rehabilitation,”
Dr. Gouws wrote:

68.       Maximum
physical rehabilitation has not been reached. Ms. Jawanda would benefit
from participation in a structured rehabilitation program under the supervision
of a kinesiologist or physiotherapist who is well versed in rehabilitation
treatment of individuals with chronic conditions and who can help her develop
an appropriate self-directed exercise program.

Additional Household Help:

69.       I would recommend that
Ms. Jawanda be provided with some additional household help in the short
term, to allow her optimum time for her rehabilitation.

[162]     Dr. Salvian
also recommended that Ms. Jawanda avoid certain types of recreational
activity and “heavy” physical activity at the work place. He also recommended
Feldenkrais physiotherapy and working out with a kinesiologist or personal
trainer. Dr. Parhar supported these suggestions and also recommended that
Ms. Jawanda be provided with “home support to help with heavier household
chores, especially those that require bending, lifting and reaching.” He
suggested “perhaps” four hours per day once a week.

[163]     Based on
this evidence, the plaintiff submits that there should be a significant award
for the cost of the following future care services:

 1. Structured
rehabilitation program – Ms. Jawanda should embark upon a physical
rehabilitation program. Considering the medical evidence and Dr. Gouws’ opinion
that supervision by a kinesiologist or physiotherapist would “help her develop
an appropriate self-directed exercise program,” I accept the estimated one-time
cost of $600 as being reasonably necessary.

 2. Periodic
physiotherapy or massage therapy – Counsel submits that massage therapy
“related to flare-ups in the plaintiff’s myofascial pain condition” should
result in monthly massage visits until Ms. Jawanda is 65 years of age. The
amount claimed for this service is approximately $14,500, after applying the
plaintiff’s “care multiplier” to age 70. On this point, even though
Ms. Jawanda testified she stopped massage treatments because she was not
receiving any lasting pain relief, I am satisfied massage treatments are
reasonably necessary given the medical evidence pertaining to her soft tissue
injuries.

 However,
while I agree that future massage therapy for a reasonable period of time would
sustain or improve Ms. Jawanda’s mental or physical health, I am not satisfied
monthly treatments are necessary until age 65. I will allow an award for
massage treatments until she is 50 years of age, the same termination date
suggested for a gym membership which, based on the recommendation of
Dr. Gouws, is the most crucial part of Ms. Jawanda’s rehabilitation.
Utilizing the annual cost associated with massage therapy of $720 per year, as
submitted by the plaintiff, I am satisfied a fair and reasonable award under
this heading would be $10,800.

 3. Annual Gym Membership
at a YWCA – Given the medical evidence, there is no doubt Ms. Jawanda
should embark upon a relatively significant and regular exercise program. The
plaintiff submits that an annual membership to the YWCA in Surrey until Ms.
Jawanda reaches age 50 would be appropriate. I agree with this submission. Even
though Ms. Jawanda’s personal circumstances, including full-time work and
full-time parenting, might mean she will not be able to utilize such a facility
on a daily basis, I am satisfied that it is appropriate to impose the cost of
an annual membership. I am satisfied that a fair award under this heading, as
submitted by the plaintiff, would be $7,500.

 4. Housekeeping
Services – The most significant cost of future care services comes under
the heading of “housekeeping services.” The primary basis for this submission
is the reports of Dr. Gouws and Dr. Parhar. Dr. Gouws is recommending
“some additional household help in the short term.” Dr. Parhar recommended
“home support to help with heavier household chores, especially those that
require bending, lifting, carrying, and reaching …”

 Based
on Dr. Parhar’s recommendation, the plaintiff suggests four hours of
housekeeping services per week at $24 per hour plus HST to age 70. The
plaintiff submits that an award of approximately $112,000 is fair given these
recommendations. When considering this submission, it is important to recall
the guidance offered in Andrews at p. 243 where the Court concluded the
focus under this heading should be on the future needs of the injured party,
not the size of the future care award. Conversely, fairness to both sides is
achieved by ensuring the award is justified.

 In
these circumstances, I am unable to conclude that it is necessary or
appropriate to make weekly household support available to the plaintiff to the
extent as suggested by counsel. Firstly, there is insufficient evidence to
conclude this amount of assistance is reasonably necessary given Dr. Parhar
specifically referred to “her heavier household chores.” Dr. Salvian also referred
to “heavy activities.”

 Moreover,
Dr. Gouws also recommended additional help in “the short term.” In my opinion,
the submission of the plaintiff for four hours of housekeeping per week is for
a regular ongoing regime of basic housekeeping and as such I am not satisfied
an award in the range suggested by the plaintiff is “reasonably necessary on
the medical evidence.”

 As
McLachlin J. said in Milina v. Bartsch, 49 B.C.L.R. (2d) 33, [1985]
B.C.J. No. 2762 at para. 199 (S.C.), there must be medical justification and
the claim must be reasonable. Even though I have concluded Dr. Parhar was
a fair and objective witness when describing Ms. Jawanda’s injuries and
his medical opinion and prognosis, when I compare his recommendation to the
recommendations of Dr. Gouws and Dr. Salvian, I am not satisfied
there is sufficient evidence to support his suggestion that Ms. Jawanda
requires such significant housekeeping assistance.

 An
award under this heading must also take into consideration the contingency that
Ms. Jawanda might very well need household assistance much earlier than age 70.

 I
do, however, accept Ms. Jawanda should have some assistance in doing some
of the “heavier” household chores for a reasonable period of time and conclude
an award of $10,000 is reasonable under this heading.

 5. Seasonal
Heavy Housekeeping Services – Again, this is based on the recommendation of
Dr. Parhar, who was of the opinion that Ms. Jawanda would require
increased weekly “home support for seasonal activities such as heavier yard work
and spring cleaning.” I have difficulty with this recommendation because
Dr. Parhar recommends “an increased amount of weekly home support for more
seasonal activities.” I am not satisfied seasonal activities justify an
increase in “weekly” home support.

 Secondly,
plaintiff’s counsel reasonably acknowledged that a claim for “annual” yard work
would be inappropriate as Mr. Jawanda “would likely do the bulk of this in any
event.”

 As
a result, there is insufficient evidence to support the suggestion that prior
to the accident Ms. Jawanda was responsible for the “seasonal heavy
housekeeping services.” In addition, the need for assistance to perform “heavy
housekeeping” activities, such as spring cleaning, has already been accounted
for in the award under the heading of “housekeeping services.” I decline to
make a further award for “seasonal heavy housekeeping.”

 6. Feldenkrais
Physiotherapy – This therapy was recommended by Dr. Salvian. The
plaintiff claims 20 individual sessions at $78.40 per session over the next two
years. I am satisfied this is medically justified and a reasonably necessary
expense on the medical evidence. There will be an order that costs under this
heading be set at $1,568.

 7. Support
Aids to Age 70 – I am satisfied the plaintiff’s submission on the total
cost of support aids, given her difficulties, is justified and reasonable.
There will be an award under this heading of $883.

[164]     There will
therefore be an order for the cost of future care services in the amount of $31,351.

Management Fee

[165]     Counsel submits
that Ms. Jawanda has no experience in the “proper management and
protection of her financial resources and cost of care funds.” As such he
submits that if the plaintiff is successful in this litigation, a “modest fund”
designed to be utilized by the plaintiff from time to time in order to obtain
professional advice on the management of her award is fair and reasonable.
Counsel submits that $15,000 would be sufficient to provide her with the necessary
financial advice in the future.

[166]     I am not
satisfied the evidence has established that it is necessary to award a
management fee or an investment counselling fee. Ms. Jawanda and her husband
impressed me as sensible, mature persons who own their own home and maintain
responsible, full-time employment.

[167]     There is
no evidence to suggest that with the assistance of her husband Ms. Jawanda
would be incapable of properly managing her financial affairs or “lacks the
acumen” to invest or otherwise deal with the funds awarded for future care.
(See Mandzuk v. Insurance Corp. of British Columbia, [1988] S.C.J. No.
100). I decline to make an award for a management fee.

Special Damages

[168]     There is
no issue that the plaintiff has incurred costs of $570 for massage therapy.
There will be an order that special damages be set at $570.

Mitigation

[169]     While the
defendants acknowledge that they do not have a “strong” argument on mitigation,
I am asked to consider that “if the plaintiff’s injuries are as serious as
alleged, then the plaintiff has failed to take steps to improve her condition.”

[170]    
In Chiu v. Chiu, 2002 BCCA 618, our Court of Appeal stated at para. 57:

The onus is on
the defendant to prove that the plaintiff could have avoided all or a portion
of his loss. In a personal injury case in which the plaintiff has not pursued a
course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing the
recommended treatment, and (2) the extent, if any, to which the plaintiff’s
damages would have been reduced had he acted reasonably. These principles are
found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[171]     Defendants’
counsel says one example of Ms. Jawanda’s failure to mitigate is her
stopping the use of Tramacet because she felt it was causing drowsiness and
fatigue and upsetting her stomach. Irrespective of whether she advised
Dr. Parhar that that was the reason she stopped taking this prescription,
I am not satisfied this in any way meets the heavy burden on the defendants to
show that Ms. Jawanda has failed to mitigate her losses.

[172]     The
defendants also submit that Ms. Jawanda has failed to fully engage in an
active exercise program. Ms. Jawanda testified that Dr. Parhar and
Dr. Sidhu advised her to walk and do some stretching, a relatively minimal
exercise rehabilitation regime. She testified she walks regularly and does the
stretches “probably once or twice a week.” When asked why she did not do these
exercises every day, Ms. Jawanda said she is often “too tired” but she has been
doing them for four or five years. Even though it is a very modest exercise
program and Ms. Jawanda could have stepped up her rehabilitation regime, I
am satisfied she has followed Dr. Parhar’s recommendations to a substantial
degree. Moreover, the plaintiff has continued to work with her pain on a
regular basis. I accept that Ms. Jawanda has been as “active” as she can
be. This was acknowledged by the medical professionals as being an important
component in any rehabilitation program. In these circumstances I am not
satisfied the defendants have established that Ms. Jawanda has failed to
mitigate her loss.

Summary

[173]    
The award will be as follows:

Costs

[174]     Subject to
any submissions by counsel, Ms. Jawanda is entitled to her costs on Scale
B.

                   “B.D.
MacKenzie, J.”                   

The
Honourable Mr. Justice B.D. MacKenzie