IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130228

Docket: M112159

Registry:
Vancouver

Between:

Cindy Louise Combs

Plaintiff

And

Kirby Lloyd Bergen

Defendant

Before:
The Honourable Mr. Justice Steeves

Reasons for Judgment

Introduction

[1]            
The plaintiff seeks damages as a result of a motor vehicle accident in
September 2009. She continues to have neck pain, lower back pain and headaches.
Her vehicle was rear ended by the defendant’s vehicle. The defendant admits the
accident took place but denies that there were injuries that justify
significant damages.

Background

[2]            
The plaintiff is currently 42 years old. She has been married for about 19
years, she has three teenage sons and the family lives in Abbotsford, British
Columbia. Since May 2012, she has worked as an assistant branch manager at a
credit union in Abbotsford. Prior to the assistant branch manager position, the
plaintiff worked in the Human Resources Department of her employer in Langley.
Her husband is a lineman and he also works part time as a real estate agent.

[3]            
The plaintiff testified about her activities before and after the
September 2009 accident.

[4]            
She described herself as very active both in and out of the house prior
to the accident. For example, before the accident she was an active sewer, she
cooked a good deal and she did home maintenance projects, including in the
garden. As well, she played slow pitch baseball and golf and water skied with
her family. In her evidence, the plaintiff described herself as being very
active with her children, including being league manager of a hockey league.

[5]            
The plaintiff testified that, since the September 2009 accident, she is
severely limited in what she can do. For example, she changed her work location
(from Langley to Abbotsford, when she took the assistant branch manager
position) because she was not able to drive in traffic for long periods of time.
This change also resulted in an increase in pay. She is not able to cook for
her family and they take on that function themselves or they buy prepared
meals. She is no longer able to play baseball or golf, and she no longer sews
or does projects around the house.

[6]            
The change in the plaintiff’s activities is discussed in more detail
below.

The Accident

[7]            
On September 8, 2009, the plaintiff was driving a large sports utility
vehicle and her three children were with her. It was the first day of school,
about noon, and the road was dry. She was wearing a three point seatbelt.

[8]            
The plaintiff travelled on Vie Road in Langley and she approached a four
way stop intersection at McCallum Road. There is a slight elevated grade just
before this intersection and then the road levels out. There were cars at all
four corners waiting to enter the intersection. The car ahead of the
plaintiff’s was signalling to turn right and it moved to the stop line and then
stopped. The plaintiff moved her vehicle forward and also stopped.

[9]            
In her evidence the plaintiff described watching the car in front of her
and the other cars in the intersection: as she said, “I didn’t want to get into
trouble in the intersection.” At that point she “felt an impact from behind.”

[10]        
She checked to see that her children were alright and then she pulled
over. The car behind her, driven by the defendant, also pulled over. When the
plaintiff stepped out of her vehicle, she “felt instant pain in [her] lower
back” when her foot touched the ground, as she put it in her evidence. The
usual information was exchanged between the plaintiff and the defendant. The
plaintiff inspected her vehicle and noticed, in her words, “two punch marks” on
her back bumper. The final cost to repair the plaintiff’s vehicle was $479.43. She
agreed that she did not see any damage on the defendant’s vehicle. And she did
not see the defendant’s vehicle prior to the impact, so any estimate she had of
the defendant’s vehicle was conjecture.

[11]        
The defendant also testified. On the date of the accident he was driving
a large pick up that he agreed was “a heavy” vehicle. His son was with him. The
defendant’s accounts of what happened at the intersection just prior to the
impact with regards to the volume of cars stopped at the intersection and cars
waiting to enter the intersection are consistent with the plaintiff’s accounts.

[12]        
According to the defendant, he moved from a stopped position and
proceeded slowly towards the stop sign as the cars before him moved forward. He
took his foot off the brake and “before I put my foot on the fuel” the
plaintiff’s vehicle stopped. The defendant immediately put his foot back on the
brake and stopped his vehicle. He testified that he did not notice any impact.”
He did not see the plaintiff’s vehicle move and he was “not 100% sure I hit
her”. Later in his evidence he stated, “I actually thought it did not happen
because I did not feel anything.”The defendant also described his son saying
“wow” as a reference to the impact. There were some loose materials in the
defendant’s vehicle; he testified that they may have been “jostled” but his
cell phone did not fall from a position he placed it on the dashboard.

[13]        
The defendant had his seat belt on; he had no injuries, nor did his son.
He also testified that there was no damage to his vehicle. There were marks at
the point of impact but, according to the defendant, these were there before
the accident. He was asked in cross examination if the plaintiff was holding
her neck while he was talking to her. He denied this and said that she was
looking at her vehicle.

[14]        
The plaintiff did not go to work the next day at her position in the
Human Resources department of her employer in Langley. She was stiff and
“sore”, she had headaches, pain in her neck and pain in her lower right back.
She was not comfortable standing or sitting. She testified that she was
uncomfortable all the time and, over all, she was “a mess.” She did not return
to work until January 2010, after a one month graduated return to work.

[15]        
The plaintiff found the return to work difficult. In particular she
struggled with the driving to and from Langley as a result of her lower back
pain and other symptoms. She described this as a problem with the stress of
driving in heavy traffic. Ultimately, in May 2012, she was able to get the
position of assistant branch manager with the same employer in Abbotsford. This
actually paid her more money than the work in human resources in Langley.
However, according to the plaintiff, this change removed her from the
headquarters of her employer and it meant her opportunities for career
advancement were significantly diminished.

Expert Evidence

[16]        
The evidence in this case included reports from five experts. I
summarize these as follows.

1.       Dr. R. Bacchus, February 2, 2012

[17]        
Dr. Bacchus is the family physician of the plaintiff and he provided a
written report dated February 2, 2012 for the plaintiff. He recorded a number
of visits by the plaintiff with regards to her accident.

[18]        
The first visit the plaintiff made to Dr. Bacchus was on September 14,
2009, six days after the accident. She complained of pain in the posterior aspect
of her neck with radiation out towards her shoulders. Her pain also extended down
her thoracic back region and into the upper lumbar region. There were
complaints of headaches. Back and neck range of motion was approximately five
percent of normal. She was “exquisitely tender” to palpation in her posterior
neck and back. A diagnosis of severe grade two soft tissue injuries was made.
There was another visit on September 28, 2009, and the complaints of discomfort
in the neck and back continued, as did the headaches. The plaintiff had further
appointments with Dr. Bacchus on October 16, November 18, December 15, 2009,
and January 26, 2010.

[19]        
On October 25, 2010, about 13½ months after the September 2009 accident,
Dr. Bacchus again examined the plaintiff. She had been attending a chiropractor
after a period of physiotherapy, about one time per week. She was obtaining
massage therapy on a weekly basis. According to Dr. Bacchus’s report, “she
was working full time, and, obviously, improved to a significant extent as
compared to the January 2010 visit.” Heavy housework was still difficult for
her, extension of the neck was 75% of normal but full in other aspects, range
of motion was 90% normal in the back. The plaintiff explained to Dr. Bacchus
that she did not golf or play baseball during the summer because of her
injuries.

[20]        
Appointments continued into 2011, and a final review recorded in
Dr. Bacchus’s report was January 30, 2012, about 29 months after the motor
vehicle accident. The plaintiff reported that she “was not a lot different”
than at the November 7, 2011 visit. Overall she had “some good days and some
bad days.” She received massage therapy every couple of weeks and it gave her
relief for about eight to ten days. She was seeing a psychologist for some
driving anxiety. Range of motion was the same as the visit on November 7, 2011
(about 80% of normal in the neck and back) and there was minor tenderness. The
plaintiff required some Advil to get through the day and heavy housework was
still difficult. The plaintiff was described as “an active individual” but she
was “afraid to ski in case she has a fall.” She tried to golf the previous year
but she paid a “significant price” for this activity (this is Dr. Bacchus
quoting the plaintiff). Swinging a bat in baseball was still difficult and she
only played about three innings at a time.

[21]        
In summary, Dr. Bacchus described the plaintiff as suffering “quite
significant soft tissue injuries to her neck and back as a result of the
September 8, 2009 accident” and there had not been problems with these areas of
her body previously.

[22]        
Dr. Bacchus reported as follows:

With various treatments which have been outlined in this
correspondence to you, along, of course, with tincture of time, the patient has
improved significantly. That being said, she has been plateaued for some time,
and remains symptomatic with discomfort and stiffness mainly in the right side
of her neck and right side of her back.

This patient has been fully compliant with all treatment
recommendations. She is very motivated to completely recover, but despite her
best efforts, has been unable to do so.

As mentioned above, she is back to work, albeit, with
residual discomfort. Furthermore, she is unable to pursue her usual
recreational activities at this point in time. As she is now approximately 2.5
years post MVA, it is my expectation that her neck and back discomfort will be
permanent, at least, to some extent. As time passes she may expect to continue
to experience some improvement, but it is my expectation that she will never
become fully symptom free.

That being said, I do not believe the patient is at risk for
the development of osteoarthritis in her injured areas.

I do not believe she will come to surgery in the future as a
result of these injuries.

I expect she will be able to work at the Credit Union as long
as she wishes, albeit, with discomfort.

I believe she will need help with her heavy housekeeping
chores on a long term basis.

As mentioned above in this
correspondence, she has been advised to remain as active as possible with her
recreational activities. She will have to use common sense, but as long as she
does so, although [sic], she may experience discomfort with her sporting
activities, she will be doing herself no harm. Finally, as I expect her soft
tissue injuries and discomfort to be, in all likelihood permanent to an extent,
I do not believe she will be able to snow ski, water ski, golf and or play slow
pitch baseball to the same degree as she did pre motor vehicle accident.

2.       Dr. J. Rice, March 28, 2012

[23]        
Dr. Rice is a chiropractor who treated the plaintiff. He provided a
written report dated March 29, 2012, and he testified for the plaintiff.

[24]        
The first treatment was on March 26, 2010, about six and a half months
after the September 8, 2009 accident. The following summarizes some aspects of
Dr. Rice’s report and includes his recommendation:

Cindy has improved since the
accident but it is my opinion that she will continue to experience symptoms and
that they are most likely permanent. My recommendation is that she continues to
get massage therapy and to continue with core exercises on a regular basis. I
also recommend that she gets regular chiropractic adjustments to help maintain
proper spinal motion and to maintain her current level of spinal health.
Finally, I advise her to maintain as active as possible, but to listen to her
body and limit the activities that cause significant flare ups. This includes
golf, water skiing, snow skiing and softball. I believe that she will always
require assistance with heavier housework to prevent increased discomfort.

[25]        
In cross examination, Dr. Rice was asked about the opinion of Dr.
Bacchus that there would be some improvement in the plaintiff’s condition. He
acknowledged that was “possible” but said there had been no improvement in the
first two years. Her range of motion was better “going forward with treatment”
but scar tissue remained and that would cause ongoing pain. He denied that
overall the plaintiff was improving, but he agreed that the present symptoms
did not negate improvement.

3.       Dr. M. Kleinman, May 14, 2012

[26]        
Dr. Kleinman is a physiatrist and he is an expert for the plaintiff. His
evidence was entered by means of a video disposition. He examined the plaintiff
on April 25, 2012, and his report is dated May 14, 2012.

[27]        
Dr. Kleinman diagnosed chronic soft tissue sprain/strain to the cervicothoracic
and lumbosacral spine, chronic mechanical pain in the cervical and lumbosacral
spine, chronic spinal deconditioning and chronic post traumatic headaches.
Further, the plaintiff’s “current presentation is directly and causally related
to” the September 2009 accident.

[28]        
Dr. Kleinman concluded that the plaintiff would likely continue to require
assistance with regards to her work, including flexibility in her schedule, the
ability to alter postures, as well as the use of ergonomic aids.

This type of assistance will
likely limit her scope of vocational options were she to leave her current
place of employment. I believe that Ms. Combs may in the future have a loss of
earning capacity in that she is less capable due to her functional
restrictions, may be deemed less marketable to a potential employer for the
same reason and therefore would lose the ability to take advantage of potential
job opportunities rendering her less valuable to herself in a competitive
marketplace. I would state that but for the indexed accident I do not believe
that she would be in this position. I could not identify any pre-existing
factors which would have left her compromised from a physical perspective.

[29]        
Dr. Kleinman also concluded as follows:

From a similar perspective, Ms. Combs also continues to have
difficulties with respect to housekeeping and home maintenance. By her own
admission, she attempts to complete some tasks but has significant amounts of
difficulty and requires assistance from her husband and children. In fact she
has now hired outside help to assist with these tasks as she finds it too
difficult. An up to date In-Home Evaluation is warranted to identify barriers
within the home as well as to introduce education, assistive devices and coping
strategies. It is my opinion that given her current presentation, Ms. Combs
should be considered substantially disabled from heavier housekeeping and home
maintenance and the In-Home Assessment should also provide a dollar cost
estimate required to support Ms. Combs on a go forward basis.

Ms. Combs indicated that since
the time of the accident, she has been unable to participate in a variety of
social and recreational activities. Specifically she indicated that she is
unable to golf, water or snow ski. She also has difficulty playing in a slow
pitch league with her husband. I believe that her difficulties are consistent
with the nature of the injuries sustained. On balance, I do not believe that
Ms. Combs could participate in these activities without exacerbation and risk
of re-injury. It is my opinion that the accident-related impairment have
therefore materially impacted her with respect to participating in social and
recreational activities as she did prior to the accident.

[30]        
As an overall conclusion, Dr. Kleinman stated as follows:

It is now well over 2½ years since the time of Ms. Combs’
accident. She presents with ongoing pain, restricted range of motion and
functional limitation. The nature of her injuries, as well as the longstanding
duration of her problems are negative prognostic indicators with respect to
further improvement. While Ms. Combs has made some level of improvement, her
response to various forms of treatment has been recalcitrant and these issues
along with the other factors identified are also predictive of a poor long term
prognosis.

Maximum medical improvement as
defined in the [American Medical Association] Guides 6^th edition is:
“the point at which a condition has stabilized and is unlikely to change
(improve or worsen) substantially in the next year with or without treatment”.
Given that Ms. Combs has reached this state, further recovery of function on a
pain-free basis can no longer be anticipated to a reasonable degree of medical
certainty and her condition should be considered permanent and static.

[31]        
In cross examination, Dr. Kleinman was questioned about “chronic” soft
tissue injuries and he replied that anything that is more than six months is
termed chronic. In the case of the plaintiff, it had been two and a half years
since her injury and Dr. Kleinman did not expect the plaintiff’s difficulties
to resolve: “we don’t talk about pain elimination; we talk about pain
management.” There was “excellent motivation” but, considering the two and a
half years that have passed, “there’s nothing that is going to cure her.” Dr. Kleinman
was not aware, as described by Dr. Bacchus, that the plaintiff played nine
holes of golf. Nor did the plaintiff describe to him that she went for walks
for exercise. He agreed that these should be included as positive indicators. The
plaintiff also did not advise Dr. Kleinman that she used yoga as a relaxation
technique. Dr. Kleinman disagreed with Dr. Bacchus’s opinion that the plaintiff
could expect to experience some improvement. According to Dr. Kleinman, the
plaintiff has plateaued and is not going to experience any improvement. He
said, “Many family physicians are overly optimistic about their patient’s
recovery.” He relied on his expertise in physical medicine rehabilitation to
prefer his opinion over that of Dr. Bacchus. He agreed that the plaintiff
should be as active as she can within the limits of her pain and within the
limits of her chronic condition, to carry on as normal of a life as she can.

[32]        
Dr. Kleinman recommended nerve blocks and trigger point injections and
these were made “in an attempt to better manage her pain, not to cure her
pain.” How much relief would be obtained would be “variable” and it is “not a
pain curative technique.”

[33]        
With respect to massage treatments, Dr. Kleinman described this as “a
passive modality”. He generally does not encourage the use of massage on an
ongoing basis and he would expect the plaintiff to “taper it down.” However,
the plaintiff was able to work, unlike some other patients who could not work.
If massage allowed her to continue working, then it is “a supportive
technique.” Dr. Kleinman did not recommend massage on an ongoing basis and he
had the same conclusion with respect to physical therapy.

4.       Ms. Jasmine Shivji, August 24, 2012

[34]        
Ms. Shivji is an occupational therapist for the plaintiff and her report
is dated August 24, 2012. She also testified.

[35]        
Ms. Shivji concluded that the plaintiff would not be competitively
employable in job titles that required the following physical demands:

[36]        
Ms. Shivji made a number of recommendations with respect to cost of
future care and these are summarized below.

5.       Dr. N. K. Reebye, October 3, 2012

[37]        
Dr. Reebye is a physiatrist licensed to practice within British Columbia
and his report of October 3, 2012 was submitted in support of the defendant. His
report is a response report.

[38]        
With regards to Dr. Bacchus’s report of February 2, 2012, Dr. Reebye
disagreed with Dr. Bacchus’s statement that he expected the plaintiff would
never become completely symptom free. According to Dr. Reebye, “There is no
evidence to cause concern that Ms. Cindy Combs will never become fully symptom
free and to give negative feedback that she will never be symptom free.” He
recognized that a small percentage of patients do continue to have symptoms
over time depending on multiple factors like psycho social problems and other
issues. It was noted that the plaintiff was young, active, back to work, and
she was not abusing medication. On this basis, Dr. Reebye concluded that it was
highly unlikely that the plaintiff would fall into the category of patients who
continue to have symptoms over time “even though she has been experiencing
symptoms for about 2.5 years.”

[39]        
Dr. Reebye also opined that the plaintiff does not require ongoing
treatments with a physical therapist or chiropractic treatments or other
passive modalities such as massage. The need for medications will also decrease
over time. He stated that, “It is not uncommon for some patients to experience
symptoms 2.5 years after soft tissue injuries, especially if there is an
element of anxiety and the stresses of pending litigation.”

[40]        
Dr. Reebye acknowledged that trigger point injections would be useful
for persistent specific areas of severe and localized tenderness. However, it
is “highly unlikely” that the plaintiff will require a change of jobs as a
result of the September 2009 accident or that she will become less competitive
in the market place. An in-house assessment and providing long term
housekeeping and homemaking would be a barrier to full improvement. Dr. Reebye
relied on de-conditioning of the plaintiff as the cause of some of the weakness
exhibited in her assessments. She would benefit from an active exercise program
and does not require ongoing manual therapy. A gymnasium pass would be very
useful, as would be yoga classes. Things such as a massage chair are a matter
of personal choice and not needed for the injuries sustained in the September
2009 accident. Ms. Shivji’s recommended that a grab bar would be “useful for
safety, but not specifically for injuries sustained.”

6.       Mr. Wayne Enright, November 5, 2012

[41]        
Mr. Enright is an occupational therapist consultant. He examined the
plaintiff on October 29, 2012, and he provided a report on behalf of the
defendant dated November 5, 2012. He also testified.

[42]        
Mr. Enright made a number of findings with regards to the plaintiff’s
limitations and difficulties as follows:

1.         Prolonged sitting can aggravate
her headaches if she does not take breaks. Typically she will sit for up to 1/2
an hour, except when driving (during which she may sit for longer periods),
to manage her pain. She sat continuously for 2 hours for the drive to this assessment and this caused pain between her
shoulder blades.

2.         Standing and/or walking on cement
surfaces is uncomfortable after approximately 30 minutes, e.g. when grocery
shopping. She is more comfortable standing on a field or carpeted surface. She likes
to keep moving about while standing She takes a camping chair when watching her
children’s games and might sit for some of the time.

3.         Lifting and carrying is very
limited when her back is "out" which typically happens once a month
and it takes a couple of days to recover. When her back is not "out"
she is still cautious with heavier lifting. She reported "I’m probably
comfortable with a 10 pound limit" but she thought she may be able to lift
more.

4.         Pushing and pulling a vacuum
cleaner is difficult because this is a one hand motion involving the right
hand. Her right side is aggravated by too much right hand pushing and pulling.
She does not have difficulty pushing a grocery cart which is 2-handed.

5. Difficulty with heavier household
chores. … She is able to do surface cleaning, e.g. wiping a counter or
tables. She folds laundry. She is doing more laundry but usually the kids do
this as she has challenges getting laundry out of the laundry – which is
awkward because it is a top load washer. She shares the cooking because of her
work schedule – "we use the crock pot a lot". She is not physically
limited with cooking although she uses more light weight cookware when able.
She is able to make the bed with her husband – as they get up at the same time.
She never does vacuuming, cleaning toilets, etc. She reported she has tried
them but then her pain is aggravated or her back might go out (although this is
unpredictable, e.g. her back could go out with painting her toenails). She is
able to do dishes with some discomfort but this is an easier task to
pass to her children.

6.         Extending or arching her trunk
backwards is aggravating to her low back.

7.         Reaching up and forward or
reaching forward to the outer range of her movement can cause pain in the mid
back area. She notices this when getting items from a shelf.

8.         Decreased strength in the hands
such that she has difficulty opening jars or opening some bags. This was not a
problem prior to her accident.

9.         Occasional sleep disturbance.

10. Increased irritability and
shortness which she attribute to constant pain. She did not think her mood is
otherwise changed from pre-accident.

11. Decreased outdoor yard work.
Pre-accident she did all the yard work (lawn cutting, gardening) because her
husband was busy travelling and her sons were younger. Now she has her sons
doing this and she herself does up to 10-20 minutes of outdoor work before
taking a break and then doing more outdoor work again. She estimates being able
to do 35 to 40 minutes maximum in a day (over an hour including breaks). Mainly
she is picking weeds in the gardens. Now that her sons are older they are doing
the lawns, weed eating, shrub trimming, and loosening up the soil in the garden
with a garden claw utensil. She estimates that she would be doing more
gardening now if she didn’t have her accident. She no longer plants flowers or
hanging baskets which she would have liked to have done but she doesn’t have
the capacity to maintain this. She finds her children don’t do the lawn very
well either – as they are always in a hurry.

12. Decreased participation in leisure
pursuits. During the year prior to her accident she was on a mixed slow pitch
team with her husband (March to July two to three times a week); she golfed as
a family from May until October one to two times a week on a 9 hole executive
course (they have a recreational property at Black Mountain Ranch in Washington
State, near Mount Baker); she went downhill skiing a few times a year; and she
water skied from May until September depending on weather (they have a boat).
Since the accident she has tried slow pitch and baseball but she has difficulty
with the batting (swinging the bat) which aggravates her low to mid back and
can cause swelling in her back. She has had the same difficulty with golfing
and only lasted for 3 holes out of 9. She has not tried snow or water skiing
but has been on the boat once. The lake was rough on this occasion and she hurt
her back and neck with the pounding motions on the boat. She is not participating
in any of her pre-accident leisure pursuits now. She now goes for walks. She
reads for 20 to 30 minutes at a time. Mainly she is busy with family commitments,
spectator sports with her children and with work.

13.       Prolonged
keyboarding as required by her job irritates her neck and upper back. She does
not think the ergonomic changes implemented at her work in July 2012 have
helped. She tends to get up and take breaks which are a natural part of her
job, e.g. to meeting with people, check on coworkers, etc.

[43]        
Mr. Enright provided detailed recommendations with regards to future
care and these are set out below.

[44]        
Mr. Enright’s report was prepared in response to Ms. Shivji’s August 24,
2012 report. Mr. Enright disagreed with the levels of limitation recommended by
Ms. Shivji. In particular, he disagreed that the plaintiff is only employable
on a part time basis. According to Mr. Enright that conclusion is not
consistent with the history of the plaintiff’s job performance or the findings
of the testing given to her. For similar reasons, Mr. Enright disagreed with
Ms. Shivji that the plaintiff was not competitively employable as an assistant
branch manager or as a learning and development advisor. In general, according
to Mr. Enright, the plaintiff’s physical capacity is greater than that
described in Ms. Shivji’s report. He noted that Ms. Shivji did not have the
benefit of Dr. Reebye’s report of October 3, 2012.

[45]        
Mr. Enright noted different opinions on prognosis as between Drs.
Bacchus, Kleinman and Reebye. For the purposes of providing “a reasonable projection
of cost of future care needs”, Mr. Enright assumed a “mid-range outcome in
terms of prognosis.” By that he meant that the plaintiff will make modest
improvements in her symptoms and functioning level but that she will not fully
recover.

[46]        
Mr. Enright was also of the opinion that the plaintiff was able to
perform more housekeeping tasks than she currently does. However, he
acknowledged that she would have difficulty with some “arduous and heavier
housekeeping tasks such as window cleaning and seasonal cleaning.” In a number
of areas Mr. Enright agreed with Ms. Shivji’s recommendation about future care
and in some cases he agreed with her estimate of the cost of that care.

[47]        
In his report Mr. Enright stated that there were four separate placebo tests
that raised questions about the plaintiff’s effort at the assessment, as well
as the consistency of her reported pain and disability. Ms. Shivji found that
there were two such test results. Mr. Enright was questioned about these non-organic
results in cross examination. He agreed that the plaintiff gave a good effort
during her assessment with him, although he qualified this answer by saying
that there were a couple of things that she could have given more effort with.
However, he ultimately concluded that, “[w]hat she told me was what I observed
and she was pretty accurate.” He decided to “not give much weight to the four
non organic test results.”

[48]        
Also in cross examination, Mr. Enright stated that he did not equate
pain with disability and that he did not agree with Ms. Shivji’s opinion that
the plaintiff was competitively unemployable. He agreed that she was
accommodating herself in the assistant bank manager position and that position
allowed for this accommodation. He denied he was agreeing with all of Dr.
Reebye’s report and he repeated that he was taking a mid range between Dr.
Reebye (being the most optimistic) and Dr. Kleinman (being the least optimistic)
about the limitations of the plaintiff.

[49]        
Mr. Enright accepted that a gym pass for the plaintiff was appropriate
and he did not put a specific end date on that pass. He thought that perhaps
age 70 or somewhere in the range of 60-80 years old would be an appropriate end
date. The use of chiropractic services would be useful but only for a short
period, according to Mr. Enright, and a modest amount for massage therapy for
flare-ups would help her better manage the pain.

Comparison of Ms. Shivji and Mr. Enright

[50]        
The following table compares the recommendations of Ms. Shivji and Mr.
Enright with regards to the future care of the plaintiff.

Analysis

[51]        
There was a motor vehicle accident on September 8, 2009, involving the
plaintiff and the defendant. The defendant admits an accident took place and
accepts that some damages are payable.

[52]        
Both vehicles were of a heavy build. They were moving slowly, perhaps
very slowly, towards a regulated intersection, the defendant immediately behind
the plaintiff. The plaintiff stopped her vehicle (her children were passengers)
in response to some traffic in the intersection. She testified that she “felt
an impact” from the rear. In her words, the damage to her vehicle was “two
punch” marks” on the rear bumper of her vehicle. Photographs indicate two very
small dents. The cost of repair for the plaintiff’s bumper was $479.43.

[53]        
The defendant testified that he had lifted his foot from the brake to
move forward and he had not put it on the gas pedal. At first, he was “not 100%
sure I hit her On the other hand, the defendant’s son, who was with him in the
vehicle, said “wow” at the point of impact, according to the defendant. The
defendant says there was no damage to his vehicle or, if there was any damage,
it was not possible to discern it from a number of previous small scuffs and
scrapes.

[54]        
Fortunately for both parties, the impact of the collision was minimal.

[55]        
The plaintiff’s first concern was, understandably, for her children. She
did feel an “instant pain” in her lower back when she stepped out of her
vehicle immediately after the accident. She did not go to work the next day as
she had headaches, pain in her neck and pain in her lower back. She did not
return to full-time work until January 2010.

[56]        
According to the expert medical evidence, the plaintiff suffered a soft
tissue injury to her neck and back. There is no evidence of problems in these
areas prior to the September 2009 accident. There has been improvement since
the accident with, for example, the plaintiff being more physically active. Dr.
Bacchus, the family physician, thought there had been “significant” improvement
and more was possible. However, activities such as golf and water skiing that
the plaintiff did before the accident will not be available to her to the same
extent. On the other hand, Dr. Kleinman opined that any improvement was
unlikely given the time that has past with little or no improvement.

[57]        
Overall, the evidence is that some damages are payable as a result of
the negligence of the defendant. They are as follows.

Special damages

[58]        
The plaintiff seeks special damages in the amount of $8,951.10 for a
number of expenses including physiotherapy, house cleaning and lawn care. The
defendant says special costs of $4,457.40 are payable. The main differences are
that the defendant submits that no damages are payable for things like lawn
care and a gym pass.

[59]        
I agree with the defendant to the extent that some of the special
expenses claimed by the plaintiff (lawn care, for example) were incurred by her
before the September 2009 accident. On the other hand, Mr. Enright, an expert
for the defendant, agreed with Ms. Shivji that a gym pass was appropriate.

[60]        
I fix special damages at $6,500.

Past income loss

[61]        
The plaintiff seeks past income loss in the amount of $18,287.25 and the
defendant agrees with this amount. However, the plaintiff also seeks payment
for her employer’s contributions to the Canada Pension Plan (CPP) and s to her
pension. These amounts are $831.05 and $1,737.29, respectively. The defendant
opposes any payment for these amounts.

[62]        
There is authority for the plaintiff’s submission on benefits to the
effect that “the compensatory principle requires that the full value of lost
fringe benefits must be taken into account when computing loss of working
capacity” (Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2^nd
ed. (Toronto: Carswell, 1996) at 240). This reasoning was adopted by the
Newfoundland Court of Appeal in Taylor v. Hogan (1998), 160 Nfld. &
P.E.I.R. 93 at para. 41 (Nfld. C.A.). I conclude that is appropriate in this
case.

[63]        
Past income loss is set at $18,287.25 plus CPP and pension contributions.
Total is $20,855.59.

Non-pecuniary damages

[64]        
A previous judgement has set out the legal approach to non-pecuniary
damages (Rhodes v. Biggar, 2010 BCSC 762),

[140]. It is now well-accepted law that the statement of the
legal test for causation is that set out in the case of Resurfice Corp. v.
Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 at paras. 21-23:

[21] First, the basic test for
determining causation remains the “but for” test. This applies to multi-cause
injuries. The plaintiff bears the burden of showing that “but for” the
negligent act or omission of each defendant, the injury would not have
occurred. Having done this, contributory negligence may be apportioned, as
permitted by statute.

[22] This fundamental rule has
never been displaced and remains the primary test for causation in negligence
actions. As stated in Athey v. Leonati [[1996] 3 S.C.R. 458], at para. 14
per Major, J., “[t]he general, but not conclusive, test for causation is
the “but for” test, which requires the plaintiff to show that the injury would
not have occurred but for the negligence of the defendant”. Similarly as I
noted in Blackwater v. Plint, at para. 78, “[t]he rules of causation
consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s
damages would have been incurred on a balance of probabilities.”

[23] The “but for” test recognizes
that compensation for negligent conduct should only be made “where a
substantial connection between the injury and the defendant’s conduct” is
present. It ensures that a defendant will not be held liable for the
plaintiff’s injuries where they “may very well be due to factors unconnected to
the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327,
per Sopinka, J.

[141] The purpose of non-pecuniary damage awards is to
compensate the plaintiff for “pain, suffering, loss of enjoyment of life and
loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para. 134; see
also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83
D.L.R. (3d) 452; and Kuskis v. Hon Tin, 2008 BCSC 862 [“Kuskis”].
While each award must be made with reference to the particular circumstances
and facts of the case, other cases may serve as a guide to assist the Court in
arriving at an award that is just and fair to both parties: Kuskis, at
para. 136.

…

[144] There are a number of factors that courts must take
into account when assessing this type of claim. Madam Justice Kirkpatrick,
writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263
D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

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

[65]        
In this case the plaintiff seeks non-pecuniary damages in the range of
$80,000 to $100,000. Previous cases relied on include: Kaleta v. MacDougall,
2011 BCSC 1259, and Smith v. Moshrefzadeh, 2012 BCSC 1458. On the
other hand, the defendant submits that the range is $35,000 to $50,000 and
previous cases relied on include Wepryk v. Juraschka, 2012 BCSC 974; Mar
v. Young, 2009 BCSC 1251; and Burton v. Insurance Corporation of British
Columbia, 2011 BCSC 653.

[66]        
The injuries to the plaintiff include soft-tissue injury to her neck and
lower back. Fortunately, the impact of the accident and the injuries were not
serious. However, the impact on the plaintiff includes the inability to manage
a large house and her family as she did before the 2009 accident. Specifically,
she does little or no sewing and she cannot participate in sports on her own
and with her family as she did before the accident. Some of these activities occurred
when her children were younger and, with the children growing up, these
activities are no longer part of the family life. Nonetheless, there are
genuine losses in the things that the plaintiff can do now compared with what
she could do before the 2009 accident. She is relatively young at age 42, and
the evidence is clear that relations within the family have been tested as the
plaintiff has learned to cope with her disability.

[67]        
I conclude that damages for non-pecuniary damages in the amount of $70,000
are appropriate.

Future earning capacity

[68]        
I adopt the following description from a previous judgement about the
approach to future earning capacity (Tsalamandris v. McLeod, 2012 BCCA
239 at para. 31),

The appellants do contest how the trial judge then went about
assessing that loss [of future earning capacity]. The trial judge set out to
apply the principles canvassed in Rosvold v. Dunlop, 2001 BCCA 1, saying
at para. 259:

The principles that govern the measurement of damages for
loss of earning capacity were thoroughly discussed in Rosvold v. Dunlop,
2001 BCCA 1, 84 B.C.L.R. (3d) 158. The principles set out in that case can be
summarized as follows:

1. the assessment of damages is not
a precise mathematical calculation but a matter of judgment;

2. a plaintiff is entitled to be
put in the position she would have been but for the accident;

3. an award for loss of earning
capacity recognizes that the ability to earn income is an asset and the
plaintiff deserves compensation if this asset has been taken away or impaired;

4. since these damages must often
be based on a hypothetical, the standard of proof of a hypothetical is “real
and substantial possibility” and not mere speculation;

5. the court must consider the real
and substantial possibilities, and give weight to them according to the
percentage chance they would have happened or will happen;

6. one starting approach to
valuation may be to compare the likely future of the plaintiff had the accident
not happened, and the likely future of the plaintiff after the accident has
happened, and to consider the present value of the difference between the
amounts earned under these two scenarios. (I note that in using the word
“likely”, the Court on this point was meaning what hypothetical was a real and
substantial possibility);

7. however, the overall fairness and reasonableness of the
award must be considered, taking into account all of the evidence.

[69]        
The cases suggest an alternate approach, the loss of earnings method,
for the assessment of future earning capacity. These involve the so-called
“Brown factors” as follows (Perren v. Lalari, 2010 BCCA 140 at para.
11),

In Kwei [Kwei v. Boisclair (1991), 60 B.C.L.R.
(2d) 393, 6 B.C.A.C. 314], where it was not possible to assess damages in a
pecuniary way as was done in Steenblok [(1990), 46 B.C.L.R. (2d) 133
(C.A.)], Taggart J.A., speaking for the Court, held that the correct approach
was to consider the factors described by Finch J., as he then was, in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353. Mr. Kwei had suffered a significant
head injury with significant permanent sequelae that impaired his intellectual
functioning. However, both before and after the accident, he worked at a
variety of low paying jobs, thus making it difficult for him to demonstrate a
pecuniary loss. Mr. Justice Taggart cited the Brown factors with approval:

[25]      The trial judge, as I
have said, referred to the judgment of Mr. Justice Finch in Brown v. Golaiy.
Future loss of earning capacity was at issue in that case. It stemmed from
quite a different type of injury than the injury sustained by the plaintiff in
the case at bar. But I think the considerations referred to by Mr. Justice
Finch at p. 4 of his reasons have application in cases where loss of future
earning capacity is in issue. I refer to this language at p. 4 of Mr. Justice
Finch’s judgment:

The means by which the value of the
lost, or impaired, asset is to be assessed varies of course from case to case. Some
of the considerations to take into account in making that assessment include
whether:

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

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

3. 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. The plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.

[70]        
The plaintiff seeks damages for loss of future earning capacity in the
amount of $100,000.00, using a capital asset approach. The basis of this
submission is that the plaintiff had to move from the headquarters of her
employer to her current position as an assistant branch manager because of the
injuries related to the September 2009 accident. That move took her out of the
career path she was on before the accident and reduced opportunities for
advancement. The plaintiff relies on a number of cases including: Brown v.
Golaiy, supra; Rollheiser v. Rollheiser, 2012 BCSC 1512; Clark v.
Kouba, 2012 BCSC 1607; Neumann v. Eskoy, 2010 BCSC 1275; and Juraski
v. Beek, 2011 BCSC 982.

[71]        
The defendant submits that the plaintiff has found the perfect job as
assistant branch manager. She is paid more than in her previous position, it is
closer to her home and she chose to take this position independent of any
injuries from the 2009 accident. Her claim is purely speculative and there is
no real and substantial possibility of a future event that will lead to an
income loss, according to the defendant. Among other cases, the defendant
relies on Athey v. Leonati, supra; Perren v. Lalari,
supra; Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); and Chang
v. Feng, 2008 BCSC 49.

[72]        
The plaintiff is 42 years old. She had some difficulty returning to work
after the November 2009 accident but she was able to do so. Her losses for this
have been addressed above under past income loss. Her gross employment income
in 2011 was $55,742.45. She changed jobs in May 2012 to work near her home as an
assistant branch manager with an increase of pay. The result is that there has
been an increase in income since the 2009 accident rather than a loss. On these
facts there is no event that permits a calculation of loss of future earning
capacity on a loss of earnings basis.

[73]        
This result, however, does not necessarily mean that there is no loss of
future earning capacity,

Even a plaintiff able to earn as much after his injury as
before his injury is entitled to compensation for the impairment, because some
occupations will be closed to him, “and it is impossible to say that over his
working life the impairment will not harm his income earning capacity.”

Perren v. Lalari 2010 BCCA
140 at para. 15, citing Parypa v. Wickware, 1999 BCCA 88 at para.
63); see also paragraph 11, citing Kwei v. Boisclair (1991), 60 B.C.L.R.
(2d) 393.

[74]        
Has there been a loss of capacity on a capital asset approach in this
case, as urged by the plaintiff?

[75]        
For the plaintiff, the move in work locations from her employer’s
headquarters in Langley is significant because she essentially gave up the
career path she was on. That path, but for the 2009 accident, would have
resulted in more opportunities than she has now. In my view, there are problems
with this view. First of all, the transfer to Abbotsford was, after all, a
promotion with an increase in pay and it is illogical to characterize it as the
end of the plaintiff’s career.

[76]        
I also do not accept that the plaintiff is stuck as an assistant branch
manager for the rest of her working life and that there will never be further
opportunities for her in the future. That view is not consistent with her
obvious talents and accomplishments. Nor is it consistent with the kind of employer
who promoted her. According to the evidence of the branch manager, the
plaintiff was hired as the best candidate and her current performance is to the
level expected of the position and the time spent in the position. The manager
did not know about the 2009 accident until she was asked to give evidence in
this litigation.

[77]        
The plaintiff does nonetheless have some lingering and legitimate
concerns about the long-term effect of the 2009 accident. Her symptoms have
improved since then. One doctor believes they will improve some more, others
conclude that her symptoms are chronic and will continue for the foreseeable
future. As it stands now, there are chronic symptoms that raise legitimate
concerns about future employability. For example, I presume that the plaintiff would
seriously consider declining a promotion to a different position at her
employer’s head office in Langley because of the commute. I conclude that these
concerns raise a real and serious possibility of a future loss of income; she
is less marketable as an employee and some opportunities are now closed to her.
I emphasize that, again, I do not accept that all future opportunities for this
42 year old plaintiff are at an end. For example, in the future a position of
branch manager near the plaintiff’s home may well open up. The plaintiff disagrees
but, in my view, it cannot be dismissed out of hand.

[78]        
Quantifying this loss is a difficult application of contingencies,
especially given the young age of the plaintiff. She may enjoy challenging work
with increasing levels of responsibility and earnings without any further
setbacks. Alternatively, she may find that her career will be set back in ways that
are related to the 2009 accident. In these circumstances I assess the
plaintiff’s loss of future earning capacity at $50,000.

Future care (including housekeeping)

[79]        
I conclude that the plaintiff is entitled to some costs for future care.

[80]        
Loss of housekeeping capacity has been described as follows (McTavish
v. MacGillivray, 2000 BCCA 164 at para. 63):

… it is now well established that
a plaintiff whose ability to perform housekeeping services is diminished in
part or in whole ought to be compensated for that loss. It is equally well
established that the loss of housekeeping capacity is the plaintiff’s and not
that of her family. When family members have gratuitously done the work the
plaintiff can no longer do and the tasks they perform have a market value, that
value provides a tangible indication of the loss the plaintiff has suffered and
enables the court to assign a specific economic value in monetary terms to the
loss. This does not mean the loss is that of the family members or that they
are to be compensated. Their provision of services evidences the plaintiff’s
loss of capacity and provides a basis for valuing that loss. The loss remains
the plaintiff’s loss of economic capacity.

[81]        
Previous decisions have also cautioned trial judges to use restraint in
awarding these types of damages so as to ensure they are commensurate with the
loss (Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d)
178 at para. 29 (C.A.)).

[82]        
I select the recommendations of Ms. Shivji and Mr. Enright as providing
the basis for assessing damages under this head. They were retained by the
plaintiff and defendant, respectively. As can be seen from the above chart,
they also agree on some items and Mr. Enright has recommended a higher amount
than Ms. Shivji in one area, a one-time expense for occupational therapy. In
other areas, experts such as Dr. Reebye accept the value of, for example, yoga
exercises. I also adopt Dr. Kleinman’s view that passive modalities such as
physiotherapy, massage therapy and chiropractic treatment are not useful over
the long term.

[83]        
With the above comments in mind, I fix damages for future care as follows,

Summary of damages

[84]        
The plaintiff is entitled to the following damages,

[85]        
The parties may make submissions on the implementation of this judgement,
including the application of an escalator amount to future costs. The issue of
costs can also be addressed by further submissions received within forty-five
days of this judgement (or appeal or review).

“Steeves,
J.”