IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130430

Docket: M125814

Registry:
New Westminster

Between:

Carol Devilliers

Plaintiff

And

Adam McGregor
McMurchy

Defendant

Before:
The Honourable Mr. Justice A. Saunders

Reasons for Judgment

[1]            
This is an assessment of damages arising out of a motor vehicle accident
which occurred on September 5, 2008. The plaintiff, Carol De Villiers, was then
a 39 year-old wife and mother of two teenage boys. She alleges that as a result
of this rear-end collision she now suffers chronic severe low back pain,
controlled with the continuous use of narcotic pain patches. She claims general
and special damages, past loss of income, loss of future earning capacity.

[2]            
Liability for the accident is admitted. The two vehicles – the plaintiff’s Ford Focus sedan and the
defendant’s Toyota pickup – had been in
traffic, proceeding westbound on Georgia Street in Vancouver, nearing the
entrance to Stanley Park. The force of the rear-end collision caused the rear
window of the plaintiff’s car to pop out of its frame. The plaintiff’s car was
then propelled forward into the car ahead of it, which in turn was pushed
forward into another car. Ms. De Villiers’ left arm hit the steering
wheel, causing abrasions and significant bruising. Both front airbags deployed,
and her glasses were knocked off her face. On examination for discovery, the
defendant acknowledged that he rear-ended Ms. De Villiers with substantial
force. This is evident from post-collision photographs of the parties’ vehicles,
which show significant damage.

Injuries

[3]            
The day after the accident, Ms. De Villiers saw her family
physician, Dr. Schuurman, complaining of neck, back and shoulder pain. The
precise nature of the plaintiff’s complaints at that time is in issue; the
defendant contends that the plaintiff’s complaints of low back pain did not
begin until weeks later, too late to infer the injury was caused by the
accident. The evidence relating to this issue is discussed below.

[4]            
Dr. Schuurman referred Ms. De Villiers to physiotherapy, and,
when her complaints of pain did not resolve, recommended massage therapy at the
end of October 2008. Beginning in January 2009, Ms. De Villiers began
receiving intramuscular stimulation (IMS) treatments from Mr. Yan, a
physiotherapist and acupuncturist. By February 2009, her neck and shoulder
injuries were pretty much resolved, but she continued to experience low back
pain. She had returned to doing all the household tasks she previously
performed, except for vacuuming. A referral was made to a physiatrist, Dr. Chu,
in March 2009, but Dr. Chu was unable to see her until November. The
massage therapy treatments were discontinued in June 2009, however Ms. De
Villiers continued IMS treatments with Mr. Yan.

[5]            
In May 2009, Dr. Schuurman prescribed Gabapentin; Ms. De
Villiers was experiencing continuous low back pain, with an intensity as low as
4 and as high as 8 on a scale of 10.

[6]            
In September 2009, Ms. De Villiers was assessed by an orthopedic
surgeon, Dr. Grypma, for ICBC. In a written report dated September 2,
2009, Dr. Grypma gave his opinion that the subject accident was “100%
responsible” for her back and neck pain. He believed that passive therapies,
including IMS, should be discontinued; he noted that while the IMS had relieved
some of her pain, he stated that “it is not curing her and it is my opinion
that it is not going to give her a whole lot more relief.” However, Dr. Grypma
felt she would benefit from active physiotherapy, and he recommended a work-hardening
program. Upon completion of 8-12 weeks of active physiotherapy, he recommended
that she should continue to exercise regularly. He noted her weight – Ms. De Villiers had weighed about 300
pounds at the time of the accident, and by September 2009 had lost
approximately 20 pounds – and Dr. Grypma
stated that further weight loss would significantly help her recover. He gave a
prognosis of there being a significant chance for further improvement. He noted
that it had taken her five years to recover from a whiplash injury she had
sustained in 1994, and said, “I suspect that because of the magnitude of trauma
that she sustained in her accident September 5, 2008 it is probably going to
take her a while before she gets pain free from this accident.” He noted that
permanent impairment was unlikely – possible, though not probable – and that it would probably take another six
months, or even longer, before any significant recovery was seen.

[7]            
Ms. De Villiers undertook the active physiotherapy program beginning
in the fall of 2009. She has continued to exercise since this program. She has
lost and has kept off approximately 90 pounds, however her low back pain has
continued. Her current exercise routine involves going to the gym or swimming
pool three or four days a week. She is able to use a treadmill and an
elliptical trainer, and also works on her abdominal core muscles. At home she
does yoga and exercises using a Wii. However, she feels her recovery has
plateaued as of approximately two years ago.

[8]            
Ms. De Villiers was assessed by the physiatrist Dr. Chu in
November 2009. He switched her off Gabapentin and onto Cesamet (synthetic THC),
but she discontinued it as it made her too drowsy. Beginning in April 2010, she
undertook several series of injections: one round of injections of anesthetic,
“peppering” the L3/4/5 ligaments and spinous processes; and then two rounds of
anesthetic with cortisone, spaced about a month apart. When these only produced
short-term pain relief, several prolotherapy injections were undertaken. This
is a somewhat controversial treatment involving the injection of high
concentrations of dextrose and anesthetic. A round of eight injections, spaced
about a week apart, was undertaken, followed by another round of five.
Ms. De Villiers was also was given trigger point injections by a Dr. Yousef
at Surrey Memorial Hospital’s pain clinic in May 2010.

[9]            
Dr. Chu’s injection treatments were discontinued in February 2011. In
his medical-legal report dated March 9, 2011, he stated that the pain had “calmed
down” and was then at a maximum intensity of 6 out of 10, whereas it had been
at 8 out of 10 before the prolotherapy had begun. Dr. Chu thought at that
point that Ms. De Villiers had reached maximal medical recovery. He felt
the prognosis for resolution of Ms. De Villiers’ mechanical low back pain
was poor, and that it was likely she would probably always have some degree of
low back pain for the foreseeable future. He was of the view that she would not
do herself any harm by keeping physically active within reason, was probably
not at increased risk of developing any accelerated degenerative changes, and
was not at increased risk of requiring surgery.

[10]        
Dr. Chu saw Ms. De Villiers once more in May 2012. At that
time, she reported that her back pain had returned to its previous level of
intensity, usually at about 6 but flaring up to 8 out of 10. He recommended
that Ms. De Villiers be started on a long-acting opioid patch. Dr. Schuurman
has followed through on this recommendation, and Ms. De Villiers now continuously
wears a Butrans patch. This moderates her low back pain down to a level of 2 or
4. However, at least a couple of times a day, she testified, she gets “breakthrough”
pain, for which she additionally takes Tylenol 3. Her daily dosage of Butrans
has recently been increased.

[11]        
Ms. De Villiers has also recently taken a pain management course
through the Surrey Memorial Hospital pain clinic.

[12]        
Dr. Schuurman wrote in a report dated February 22, 2012, that Ms. De
Villiers could expect to have chronic pain indefinitely, and that no further
recovery was expected. She noted that Ms. De Villiers had been cooperative
and consistent in following through with the treatment options presented. Dr. Schurmann
had also screened Ms. De Villiers for depression and ruled it out as a
contributing factor.

[13]        
As a result of her back pain, Ms. De Villiers cannot sit
comfortably for more than approximately 30 minutes at a time. She described
activities such as leaning, stooping and bending as being a real problem, and
standing in place for more than 20 minutes will really aggravate her back. She
finds driving long distances to be very uncomfortable, but because of the
accident she feels safer being in control as the driver, and finds that the
concentration required in driving helps take her mind off her back pain. She
has flown, but finds that she has to break up her trips into shorter segments. When
on vacation, she usually rests and walks. She no longer snorkels, as she is
afraid that activity will re-injure her back. She has seriously aggravated her
back pain on a couple of occasions, doing routine activities, and has learned
to be very protective of her back.

[14]        
Ms. De Villiers was working in a sedentary office job at the time
of the accident. She continued in that position until December 2010, when she
quit in the face of an imminent layoff. She had been able to continue work
despite her discomfort, as she was in an office where she was able to take
breaks and to get up and move around when her back pain became intrusive.

[15]        
The continuing chronic low back pain has had an impact on Ms. De
Villiers’ social life. Prior to the accident, she had a habit of seeing one
particular friend every week, and spending the day with her shopping. She can
now only shop for a few hours at a time, and has to sit frequently. Her friend,
Ms. Maritz, testified as to Ms. De Villiers’ evident discomfort,
constantly having to adjust her sitting posture and, when at Ms. Maritz’s
home, frequently lying down. Ms. De Villiers and her husband would also,
prior to her accident, see a movie once every six weeks on average, sometimes
with another couple; now, because of the limited tolerance she has for sitting,
she finds sitting through a movie a challenge.

[16]        
Ms. De Villiers is an avid knitter, and had to discontinue that
activity for about a year after the accident, as it would bring on neck or
shoulder pain; she has returned to this activity.

[17]        
Ms. De Villiers estimates that because of her back pain, she now
spends about an hour or two a week less doing housework. She has modified her
homemaking tasks; she can no longer clean the entire house all in one go. Her
husband and her two sons help with activities that require repeated stooping or
bending, such as vacuuming and unloading the dishwasher. Her family has given
her a “robot” vacuum, which she depends upon. Her family has had to hire a
contractor on one occasion since the accident to wash windows.

[18]        
Ms. De Villiers’ evidence as to her present-day level of disability
was supplemented, and confirmed to some extent, by the evidence of an
occupational therapist, Ms. Megan Stacey, who conducted a physical
capacity evaluation (as well as a cost of future care evaluation) in June 2012.
Some restrictions were found in some tests. In other tests, Ms. De
Villiers’ function was normal. Ms. Stacey noted that in a self-reporting
questionnaire, the Spinal Function Sort, Ms. De Villiers rated herself as
either “Mildly Restricted” or “Unable” to perform the various listed
activities; she did not rate herself as “Able” in any category. Relative to her
performance during testing, Ms. Stacey felt that Ms. De Villiers
tended to underestimate her actual physical capacity.

[19]        
Ms. Stacey’s opinion is that Ms. De Villiers exhibited the
capacity of someone “Non-Competitively Employable” in sedentary office-based
employment:

The individual meets most of the
requirements of work within given strength categories but has limitations that
restrict access to the full range of occupations for which she is otherwise
qualified. She may require a sympathetic employer, modified work hours or
environmental/ergonomic intervention.

[20]        
That Ms. De Villiers has, through the use of medication, retained
some significant level of functioning despite her chronic pain is illustrated
by the comments of Ms. Stacey, in her cost of future care report dated August
7, 2012:

Ms. De Villiers was asked to provide written information
regarding her pain levels, pain management and activities during the afternoon
and evening after the assessment as well as on the next day. She wrote that
following the assessment, she made lunch and took a “quick trip” to the corner
store for milk. She then baked bread and other foods (for three hours). She
rested for a while before making dinner. Following dinner, she watched
television and knitted. At approximately 8:00 p.m., she did some computer work.
She went to lie down at 9:30 p.m. She reportedly took 2 tablets of Tylenol #3
at 1:00 p.m. and again at 5:00p.m.

Ms. De Villiers reported that the following day, she
took her regular Gabapentin but no additional pain medications. She indicated
that she was “starting to come back to the normal level of pain (before the
assessment).”  Her legs were less achy and her back was “calming down after all
the additional requirements at the assessment.”  She felt that she was
“returning to [her] ‘normal’ level of pain.”

[Emphasis added.]

Ms. De Villiers acknowledged the accuracy of this
summary.

Causation

[21]        
Dr. Grypma, the orthopedic surgeon who assessed Ms. De
Villiers for ICBC in September 2009, was later given further medical records by
defence counsel, and provided his comments in a report dated January 5, 2012. He
wrote a further report dated March 28, 2012, in response to the opinions of the
plaintiff’s physicians, including the family physician Dr. Schuurman’s
report of February 22, 2011, and the physiatrist Dr. Chu’s report of March
9, 2011.

[22]        
In his January 5, 2012 report, Dr. Grypma raised a question as to timing
of the onset of low back pain following the accident. He noted that Dr. Schuurman’s
notes do not specifically refer to Ms. De Villiers’ “low back” until the
entry of October 30, 2008, i.e. approximately eight weeks post-accident. He interpreted
Dr. Schuurman’s records as indicating that there was no complaint of low
back pain, and that Ms. De Villiers had not in fact been suffering low
back pain, until then. He stated in his report that if the low back pain did
not start until more than a week after the motor vehicle accident, it was
unlikely that Ms. De Villiers sustained any injury to the lower back.

[23]        
Dr. Grypma also noted that in the CL-19 report prepared for ICBC by
Dr. Schuurman in March 2009, no limitations were noted with respect to Ms. De
Villiers’ cervical, thoracic or lumbar spine, and the spinal range of motion
was full. He was therefore of the view that her injury was only a Grade I
soft-tissue injury, using the Québec
Task Force classification. His opinion was that even if the low back pain did
start within seven days of the accident, it was likely a Grade I soft-tissue
injury only. As the natural history of such injuries is recovery in four to six
weeks, he felt it was unlikely that her current low back pain had been caused
by the accident. Instead, he felt it was more likely that her weight, her
physical deconditioning, and degenerative disc disease (mild degenerative disc
changes and facet changes having been detected in an August 2011 MRI) were the
causes of her enduring symptoms.

[24]        
Dr. Schuurman’s note of her first post-accident assessment of Ms. De
Villiers, on September 6, the day following the accident, reads in part:

Neck stiff,
full ROM

. . .

Impression: 
STI to neck

back

Contusion left arm

To the left of those notes there is a very rough sketch of
the outline of a torso, with cross-hatching down the spine from the neck down
to the bottom edge of the drawing. Dr. Schuurman gave evidence that this
drawing was meant to show diffuse pain through the entire neck and back down to
waist level, which to her was the lumbar spine. If Dr. Schuurman had felt
that Ms. De Villiers only had a thoracic injury, she believes she would
have been more precise in her shading of the drawing.

[25]        
The next visit was on September 15, 2008; Dr. Schuurman’s notes for
that day refer to continuing pain in the neck, shoulders, thoracic spine and
right buttocks. As Dr. Schuurman noted, an injury to the buttocks does not
normally result from a rear-end collision, so this indicated something possibly
related to her back.

[26]        
The notes for October 2 and October 16 make no specific reference
to Ms. De Villiers’ back, although the October 2 notes contain another
drawn outline of a torso, with cross-hatching indicating diffuse pain through
the neck, across the shoulders and down the spine.

[27]        
The note for October 28 clearly states:

upper back is “40%” improved

low back
still very painful

R buttocks pain and tightness
since MVA

[28]        
The March 2009 CL-19 report completed by Dr. Schuurman states that
the initial objective findings were tenderness over the neck, thoracic
and lumbar spine. This report was filled out long before Dr. Grypma ever
made an issue of the date of onset of the low back symptoms. Clearly, Dr. Schuurman’s
recollection when she filled out this form, from reviewing her notes, was that
the lumbar pain had dated from the initial visit. Dr. Schuurman was not
cross-examined on that entry.

[29]        
Ms. De Villiers’ evidence was that her neck and upper back were
very stiff, and her lower back sore, within a very short time after the
accident. The next day, when she saw Dr. Schuurman, her whole back was
hurting and her neck and shoulders were particularly stiff. Initially her neck,
upper back and shoulders were more of a problem, but those injuries resolved. As
they resolved, her low back pain became her main complaint, and it has
worsened.

[30]        
On September 8, 2008, Ms. De Villiers went to an ICBC claim centre
and was interviewed regarding her injuries. A CL-24 form was prepared, reviewed
by Ms. De Villiers and signed by her. The injury description was
originally typed in as:

Neck, upper back, stomach, left
arm, left shoulder, left shoulder.

Ms. De Villiers reviewed the form, crossed out the
last “shoulder” and wrote in “elbow”. In cross-examination, she agreed that she
did not say that her low back was injured, and that when given the opportunity
to correct the form she had not added any reference to her lower back. Her
explanation for this was that her neck and upper back were “screaming the
loudest”. Defence counsel did not suggest to Ms. De Villiers in
cross-examination that her low back was not in fact hurting and had not been
injured in the accident.

[31]        
I have no difficulty accepting the evidence of Dr. Schuurman and of
Ms. De Villiers as to the timing of commencement of her lower back pain. I
find that her symptoms of low back pain, though at first minimal and
overshadowed by her other symptoms, did come on very shortly after the
accident, and that the proximity in time was sufficiently close so as not to
lead to any doubt as to the accident being the cause.

[32]        
In his report of March 9, 2011, Dr. Chu wrote:

In a typical whiplash injury one gets acceleration and
deceleration forces applied to the spine.

There is typically a small tear
within the supportive muscles around the spine, which leads to the acute
whiplash pain that almost everyone gets if the forces are large enough. However,
sometimes there could be mechanical injuries to the spine such as in her case,
injuries to the posterior elements, mainly the ligaments that attach to the
spinous processes. Sometimes when one gets rear ended and thrown forward one
gets jackknifed around the lap belt and that can sometimes injure the spine. That
is what has happened with Ms. De Villiers. She also had no previous
problems with low back pain before this motor vehicle accident. It was probable
that the motor vehicle accident has been the direct cause of her ongoing mechanical
low back pain.

Dr. Chu was not cross-examined on this opinion.

[33]        
Dr. Grypma’s change in his opinion between his first report of
September 2009 and his second report of January 2012 seems largely to have been
predicated on the assumption that Ms. De Villiers’ low back pain only
emerged after a material delay. As I have found, this assumption is not correct.

[34]        
I am not persuaded by the alternative theories Dr. Grypma put
forward. In attributing Ms. De Villiers’ continuing symptoms in part to
deconditioning, Dr. Grypma completely overlooked Ms. De Villiers’ ongoing
exercise routine, which has led to a 90-pound weight loss. He also gave no
explanation as to how the relatively mild degenerative changes seen in the MRI
study could account for Ms. De Villiers’ chronic pain and its resistance
to the various treatments she has undertaken, without the accident having been
a critical factor in the onset of her complaints. To accept his changed
opinion, I would have to find that the emergence of symptoms of back pain in
proximity to the accident was mere coincidence. I am not prepared to make that
finding.

[35]        
Furthermore, Dr. Grypma’s interpretation of Dr. Schuurman’s
CL-19 report as only demonstrating a Grade I soft tissue injury overlooked the
fact that Dr. Schuurman clearly found it to be a Grade II injury; the
second page of the CL-19 form has a ticked box next to the description of a
Grade II injury:

Neck/upper
back

musculoskeletal
signs:

·       
decreased ROM

·       
point tenderness.

Dr. Grypma initially maintained on
cross-examination that a Grade II injury classification requires both
decreased range of motion, and point tenderness. However, he conceded that the
Québec Task Force Grade
II classification uses point tenderness as a clinical sign, distinguishing this
injury from a Grade I injury in which there are no clinical signs. Attempting
to defend his position that this was not a Grade II injury, Dr. Grypma
then asserted that Ms. De Villiers’ injury could be viewed as a “Grade 1.5”.
There is no evidence of such a classification being recognized. I was not
impressed by this testimony.

[36]        
Dr. Grypma contended that as patients waiting for hip replacements
usually have chronic pain over two to three years prior to having surgery, and
the vast majority of these patients eventually recover, there is every reason
to believe that Ms. De Villiers will also recover from her chronic low
back pain. I found this analogy facile and argumentative. Dr. Grypma did
not claim any expertise in the field of chronic pain treatment.

[37]        
Overall I found Dr. Grypma’s evaluation of Ms. De Villiers to
be ill-considered and superficial, and I give no weight to his evidence.

[38]        
I accept the opinion of Dr. Chu. I find that Ms. De Villiers’
chronic low back pain has been caused by the accident.

Damages

Non-Pecuniary Damages

[39]        
Ms. De Villiers has sustained a significant back injury leading to
significant pain that has become chronic and likely permanent. She is managing
the pain with medication, and as a result has been able to function with
restrictions.

[40]        
The plaintiff’s counsel submits that the appropriate range of
non-pecuniary damages in the present case is $70,000 – $90,000, citing Culos
v. Chretien, 2012 BCSC 105; Dawson v. Gee, 2000 BCSC 147; Demedeiros
v. Heinrichs, 2001 BCSC 1475; and Kasic v. Leyh, 2009 BCSC 649. Of
these cases, I find Culos and Kasic to bear the greatest similarity
to the present case.

[41]        
Culos concerned a male plaintiff whose age was not stated but who
was described as being near retirement from his land development business. He
had been struck by the defendant’s car when crossing the street. At the time of
trial, six years post-accident, he was suffering neck and back pain daily,
which he was managing with over-the-counter medications. He remained physically
active to some extent, though he had had to give up golf, skiing and running.
Collateral witnesses testified to him seeming to have less drive, energy and
focus. The plaintiff had sought relief through regular physiotherapy treatments
for 1½ years, and then occasionally underwent massage therapy for about 3
years. His low back had periodically been symptomatic prior to the accident,
but he had no history of neck pain. The opinion of his physiatrist, which was
accepted by the court, was that the accident had aggravated his low back
condition, and had activated previously asymptomatic degeneration in the neck.
His condition was likely permanent. He was awarded $75,000.

[42]        
In Kasic, the plaintiff, a 50 year-old male, had suffered
injuries as a result of a rear-end collision. The head, neck and upper-back
injuries resolved in due course, but he was left with serious chronic low back
pain. He had been able to continue working as a building caretaker, but was
unable to do heavy tasks. He underwent a course of rehabilitation therapy, as
well as physiotherapy, massage therapy, chiropractic treatments, and injections
on three occasions. He would take over-the-counter medications only, and would
limit use of them as they bothered his stomach. His condition was permanent. He
was awarded $70,000.

[43]        
Defence counsel submitted primarily that non-pecuniary damages should be
assessed in the range of $15,000 to $30,000, on the basis of Dr. Grypma’s
revised opinion. Alternatively, if the plaintiff’s low back pain were determined
to have been caused by the accident – which I have found to be the case – it
was submitted that damages of $40,000 would be appropriate, citing, among
others, Kipling v. Richmond, 2004 BCSC 1446; Napoleone v. Sharma,
2008 BCSC 1539; Elgood v. Ellison, 2010 BCSC 442; Sandher v. Hogg,
2010 BCSC 1152; and Eng v. Titov, 2012 BCSC 300. However, while these
cases do concern plaintiffs who have suffered chronic pain injuries, none of
them concern plaintiffs who experience pain as intense as that suffered by Ms. De
Villiers, requiring continuous use of opioids.

[44]        
While Ms. De Villiers has retained some considerable level of
function, through the use of medication, the intensity of her pain when she is
not medicated is a distinguishing feature of this case. The recent increase in
her dosage is also a concern, as it points to the prospect of long-term loss of
efficacy. If her pain cannot be effectively controlled, it appears possible
that it may become disabling. I also take judicial notice of the fact that
dependency is a risk with any opioid, though presumably she will continue to be
closely monitored by her physician.

[45]        
I award general damages in the amount of $75,000.

Loss of Earning Capacity

[46]        
Ms. De Villiers and her husband were married in 1988. They have two
sons, now age 22 and 20. She home schooled both children.

[47]        
She had completed her high school education in South Africa, and then had
begun studies towards obtaining qualifications as a medical technologist, which
were interrupted when she got married. In the late ‘80’s and early ‘90’s she
took courses in executive secretarial studies and bookkeeping, and a
correspondence course in computer programming. She has continued to be able to
use these skills to some extent; her husband is self-employed as a construction
estimator and detailer, and Ms. De Villiers works about 3 or 4 hours a
week, keeping his books up to date and attending to his business banking.
However, other than a full-time job she held briefly in 1991, when she and her
husband had immigrated to Canada and he was looking for work, she only ever
worked “very casually” up until 2005.

[48]        
In or around 1999 Ms. De Villiers took a correspondence course in
aromatherapy – the use of essential oils, either inhaled or applied topically,
sometimes with massage, to alleviate ailments. She obtained a certificate. This
field became her passion.

[49]        
In 2000, she and her family moved to San Diego. She testified that aromatherapists
in California were required to have formal training in massage, and so she took
a massage therapy course at Mueller College in San Diego, graduating in 2001.
The family returned to the Lower Mainland in 2003, and in 2004 she became a
registered member of a B.C. aromatherapists’ association. Ms. De Villiers
had a few clients whom she would treat from her house. She has never become a
registered massage therapist, and conceded in cross-examination that the
courses she took in San Diego represent only a fraction of the training
required to become a registered massage therapist in British Columbia.

[50]        
In 2005, she and a few friends formed a company, Graceful Wellness Inc.,
and obtained a franchise to operate a store for an aromatherapy retailer, Saje
Natural Wellness. She worked in the store at Metrotown in Burnaby, B.C.,
selling products and giving advice to customers. She and one other employee of
the store also gave massages to customers; there was a massage chair in the
store, and customers would be charged $1.00 per minute for massages, of which Ms. De
Villiers, or her co-worker, kept 65%. (Ms. Susan Schmale, the former
controller of Saje, testified that in-store chair massages were viewed by Saje not
as a profit centre, but as a service to complement and promote the aromatherapy
products.)

[51]        
Ms. De Villiers was still not employed full-time; her focus was
then on home schooling of her sons, the younger of whom completed his high
school studies in December 2008.

[52]        
The Metrotown operation was not a success, and in November 2007 the
corporation bought back the franchise from Graceful Wellness. Ms. De
Villiers acquired the shares in the company from her business partners in May
2008, for the sum of one dollar.

[53]        
Since 2005, Ms. De Villiers had also worked casually at other Saje
stores, and at their corporate warehouse, where she packed products for
shipment to stores. She also provided consulting services to Saje, assisting
the corporate offices with preparing applications to Health Canada for product
approvals. From the closing of the Metrotown store in November 2007, for
approximately the next year, Ms. De Villiers continued to work for head
office and for other Saje retail locations. In November 2008, she accepted an
office position at Saje’s corporate offices, working as a bookkeeping/data
entry clerk. This was a three-quarter time position. She worked in that
position for the next two years. She also occasionally worked at Saje retail
locations. Ms. De Villiers quit Saje in December 2010 when a layoff was
imminent due to downsizing of corporate staff. (Ms. Schmale confirmed that
Ms. De Villiers would have been laid off, had she not left voluntarily.)

[54]        
Ms. De Villiers was employed in this bookkeeping position in
September 2008 when the subject accident occurred. The accident was on a
Friday; she worked a half-day on the following Monday, and then resumed her
pre-accident work schedule. As her back pain became more prominent, she found her
movements at work were mildly restricted; for example, when filing she found
that she could not bend over for very long. At Saje, when she was in pain, she
was able to get up from her desk and stretch. There were days when she left
early because of back pain or resulting fatigue, but for the most part she was
able to work full days.

[55]        
Ms. De Villiers’ dream, for many years, had been to open her own
full-time aromatherapy practice. Once her younger son had completed his home
schooling in December 2008, her intention was to rent a room in a wellness
centre or clinic and pursue this line of work. She understood from a friend
with an aromatherapy practice that she could expect to pay rent of approximately
$400 per month. At the time of the accident, she had not taken any concrete
steps to start her own aromatherapy practice.. However, she already had her
credentials as an aromatherapist. She owned a massage table and two massage
chairs. She testified that after finding space, she would only need a business
license, and insurance to start her practice.

[56]        
Since the accident, Ms. De Villiers has not been able to pursue
this dream, as her back injury has precluded her from engaging in the physical
exertions required to provide massages. Even when working at other Saje retail
locations following the accident, she was unable to do any chair massages for
customers. Asked in cross-examination whether she could now go into business
simply as an aromatherapy consultant – advising customers what aromatic
preparations to use, without doing massages – she answered that she would be in
competition with large national businesses such as Saje, and she did not think
this could be successful.

[57]        
Ms. De Villiers continued to work with Saje’s corporate office in
the bookkeeping position until December 2010; as described above, she quit in
the face of an imminent layoff. (She did do some consulting and research work
for Saje in 2012, though her total income was less than $6,000.)

[58]        
Ms. De Villiers and her husband had been planning a trip to
Mazatlan, Mexico in March 2011, so she did not look for work in the months of January
and February. In April 2011, she began regularly checking newspaper classified
ads, and two internet classified advertising sites, for positions she felt
suited for. She heard of a third such website in December 2011, and began to
check that regularly as well. Her focus has been on applying for bookkeeping or
office clerical positions, as she would prefer working in an office to direct
contact with the public. She has replied to a few dozen such ads by email with
her resume attached, but aside from being interviewed for receptionist
positions at two different chiropractic clinics she has had no luck finding
employment. She has not investigated or pursued any other means of finding such
employment: she has not posted her resume online, has not mailed unsolicited
resumes, has not registered with a temp agency, and has not sought assistance
or advice from a career centre or vocational counsellor.

[59]        
One step which Ms. De Villiers has taken towards employment has
been to commence training as an acupuncturist. Although her injuries would
prevent her from engaging in aromatherapy massage, she has maintained her
interest in health-related fields. She was intrigued by her exposure to needle
therapies through her physiotherapist, and she believes she would be fit to
pursue a career in this field. She has taken one year of study at PCU College
of Holistic Medicine in Burnaby, at a cost of $5,100, and needs to complete two
more years to graduate. Financial considerations have prevented her continuing
this training for the time being.

[60]        
The principles upon which awards for loss of earning capacity are made
were summarized by Madam Justice Huddart in Rosvold v. Dunlop, 2001 BCCA
1:

[8] The most basic of those principles is that a plaintiff is
entitled to be put into the position he would have been in but for the accident
so far as money can do that. 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.) (Q.L.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.)
(Q.L.). 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) 126 (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.

[11] The task of the court is to
assess damages, not to calculate them according to some mathematical
formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995),
12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity
as a capital asset has been established, that impairment must be valued. The
valuation may involve a comparison of the likely future of the plaintiff if the
accident had not happened with the plaintiff’s likely future after the accident
has happened. As a starting point, a trial judge may determine the present
value of the difference between the amounts earned under those two scenarios.
But if this is done, it is not to be the end of the inquiry: Ryder
(Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.)
(Q.L.); Parypa v. Wickware, supra. The overall fairness and
reasonableness of the award must be considered taking into account all the
evidence.

[61]        
Justice Huddart went on to reiterate, at para. 12 of her reasons, that a
plaintiff who will still be able to earn income at the pre-accident level, but
has had some career paths closed to him or her because of injury, will still be
entitled to some award of damages. As explained by Madam Justice Southin in Palmer
v. Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 (C.A.):

Because it is impairment that is
being redressed, even a plaintiff who is apparently going to be able to earn as
much as he could have earned if not injured or who, with retraining, on the
balance of probabilities will be able to do so, is entitled to some
compensation for the impairment. He is entitled to it because for the rest
of his life 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
ability.

[62]        
Although Ms. De Villiers conceded in cross-examination that her
husband’s income is sufficient to meet her family’s needs, I do find it
probable that she would have continued to work, for a substantial period of
time, but for the accident, either in a clerical/bookkeeping position as at
Saje, or in aromatherapy. There is a real and substantial possibility of a
future loss of income, as a result of her injuries. And, to some extent at
least, each of the Brown v. Golaiy factors noted above do come into play
in assessing her loss. The possibility that she would not have worked at all,
or only worked part-time, is to be treated as a negative contingency.

[63]        
Having said that, there is a real difficulty in the present case
assessing the extent of the plaintiff’s loss. First, I note that all forms of
massage therapy are regulated in British Columbia, and require practitioners to
be registered with the appropriate college; Massage Therapists Regulation,
B.C. Reg. 280/2008, s. 5. Under the regulation, “Massage therapy” is
defined as:

… the kneading, rubbing or
massaging of the human body, whether with or without steam baths, vapour baths,
fume baths, electric light baths or other appliances, and hydrotherapy or any
similar method taught in schools of massage approved under the Physiotherapists
Act, but does not include any form of medical electricity.

This definition, on its face, would include a massage
rendered by an aromatherapist. All massage therapists must be registered with
the College of Massage Therapists. Ms. De Villiers is not a registered
massage therapist, she has not undertaken the training in this discipline, and she
has expressed no intention to have done so prior to the subject accident.

[64]        
Mr. Kennedy advised me in the course of argument that there are in
fact many aromatherapists in business in the Lower Mainland who are not
registered massage therapists, and he submits therefore that the regulatory
regime I have described should not act as a bar to the plaintiff’s claim.
Accepting that, however, and accepting that this status quo will
continue – that aromatherapists will be permitted to continue to render
massage, either through lack of enforcement by the College, or through a change
in the legislation – I still have no evidence as to the quantum of Ms. De
Villiers’ alleged loss.

[65]        
Mr. Kennedy argues that we could, as a starting point, base
calculations on the “$1 per minute” fee charged to customers for chair massages
at the Saje retail location, i.e. $60 per hour. If Ms. De Villiers had
been able to start an aromatherapy business in early 2011, he argues, we could
discount the past two years as only producing very modest income while the
business was in its start-up phase. However, with a growing clientele, it would
not be unreasonable to find that, even working part-time, Ms. De Villiers
could now be doing 4 or 5 one-hour massages a day, yielding $1200 per week.
Applying negative contingencies, and with allowances for vacation and sick
time, 40 weeks a year of work could produce an income of $48,000. While Mr. Kennedy
concedes this is speculation, he says that speculation is necessary, as Ms. De
Villiers has been entirely prevented by the defendant’s conduct from exploring
this opportunity and proving what income could be made. He submits that an
award in the range of $100,000 to $150,000 is indicated.

[66]        
I am not persuaded by this argument. It seems dubious that a $1 per
minute fee charged in a retail location is in any way analogous to what an
aromatherapist charges per hour or half-hour in a private spa or clinic
setting. I have no evidence that massage practitioners who are not registered
massage therapists are able to charge as much as $60 per hour. I have no
evidence as to the income levels of aromatherapists or aromatherapy clinics. If
there are schools or colleges in B.C. which provide instruction in this
discipline, I have no idea whether their graduates are able to find steady
work, and no idea what incomes they enjoy. I have no evidence as to the demand
for aromatherapy in the Lower Mainland.

[67]        
In short, I have no evidence that Ms. De Villiers’ ability to earn
income as an aromatherapist would be any greater than the residual earning
capacity she still possesses, and which she did put to use in her post-accident
employment. And, while there is a possibility that Ms. De Villiers, but
for the accident, could have earned an income in aromatherapy beginning in
early 2011, after leaving Saje, I am not persuaded that she has made reasonable
efforts to find employment. Her loss of income since then cannot fairly be
attributed to her injuries. Her entitlement to some measure of compensation by
reason of the fact that she can no longer pursue her long-held dream of a
career in aromatherapy massage is only nominal.

[68]        
Ms. De Villiers’ compensation for loss of earning capacity is to
reflect the degree to which her future employment could be impacted by her
disability. In that regard, there is evidence from the occupational therapist Ms. Stacey
as to the plaintiff being non-competitively employable. That evidence, however,
has to be balanced against the evidence of the plaintiff having worked
successfully in a sedentary position for more than two years following the
accident, with no substantial accommodation having to have been made by her
employer. Finally, I must consider the fact that her chronic low back pain – should
it worsen, should it become unmanageable, or should her ability to function
decrease – could lead to a further loss of capacity. In this regard, the recent
need to increase the dosage of her opioid pain patch is worrisome.

[69]        
I award the plaintiff $50,000 under this heading.

Special Damages

[70]        
The plaintiff seeks the following categories of special damages.

Medication

[71]        
Ms. De Villiers has taken a variety of medications to control her
lower back pain: Tylenol, Gabapentin, Pregabalin, Nabilone, and, more recently,
Butrans patches. The cost totals $7,782.71. I find these expenses reasonable,
and I allow this amount.

Physiotherapy

[72]        
From December 20, 2008 to and including May 12, 2012, Ms. De
Villiers a total of 77 physiotherapy sessions with Mr. Yan. It appears
that most if not all of these sessions involved the application of IMS
treatment. Ms. De Villiers seeks the cost of these sessions – $3,850 – plus
mileage charges of $525, calculated on the basis of $0.50 per kilometre, for a
total of $4,375.

[73]        
Mr. Yan indicates in his report dated February 24, 2012, that by
the latter half of 2009 his treatments succeeded in significant reduction of
neck and upper back pain, but similar progress was not made in respect of the
lumbar pain. In that regard, his treatments have produced only temporary pain
relief.

[74]        
It appears from the evidence of Dr. Yan – in particular his report
of April 12, 2012 – that he has pursued this course of therapy on the premise
that Ms. De Villiers has been suffering neuropathic pain, as a consequence
of nerve root irritation at the L5-5 level. This diagnosis has not been made by
any of the plaintiff’s treating physicians.

[75]        
In my view it was reasonable for Ms. De Villiers, having been
referred to physiotherapy initially, to have experimented with the IMS
treatments offered by Mr. Yan, up until November 2009, when she came under
the care of her physiatrist Dr. Chu. Beyond that time period, there is no
apparent medical justification for the physiotherapy treatments. I award the
cost of 40 treatment sessions, plus mileage, a total of $2,280.

Massage Therapy

[76]        
From November 2008 to June 2009, the plaintiff underwent 41 sessions of massage
therapy. She seeks the cost of these sessions – $2,875 – plus mileage of
$190.80, a total of $3,065.80. In my view, the cost of a dozen treatment
sessions may fairly be viewed as reasonable. Beyond that point, there is no
evidence that the treatments would have had any therapeutic benefit beyond
temporary pain relief, and the cost cannot be justified. Including mileage
expenses, I allow $730.

Fitness Membership and Fees

[77]        
Ms. De Villiers seeks recovery of her gym membership and monthly fees,
charges for swimming at a local recreation centre, and associated mileage. The
claimed amount is $2,636. This includes more than $1,850 for mileage charges
associated with 321 visits to the gym.

[78]        
It appears that Ms. De Villiers was not at all physically active at
the time of the accident. Dr. Schuurman’s report of August 24, 2010 notes
that on examination on July 7, 2009:

… she weighed in at 296 lbs.
Her height was 5’6”. She was clearly over weight and getting no physical
exercise. We discussed the importance of weight loss and exercise in her
recovery program.

[79]        
Thereafter, it appears Ms. De Villiers began walking regularly, and
gradually began to lose weight. Dr. Chu recommended that she undergo an
active rehabilitation program, and she did so at ICBC’s expense. Dr. Chu
remarked in his report of March 9, 2011:

There are no specific cures for
this chronic mechanical back pain. I did not recommend any ongoing passive
treatments such as electrical stimulation or heat or manual treatments. There
can be temporary relief but it won’t change the outcome. I would recommend that
she continue to pursue an exercise program to work on strengthening the muscles
around the core such as the back muscles and abdominal muscles to better
support the spine. That won’t cure the problem but it should help with
protecting the painful area. She should continue on with her gym membership
indefinitely. Losing weight would probably be of some benefit for the low back
pain.

It appears Ms. De Villiers began regular gym
sessions in June 2010.

[80]        
As noted above, through sticking to her exercise routine Ms. De
Villiers has lost 90 pounds – almost one-third of her initial body weight. This
has undoubtedly had, and will have, health benefits for her beyond recovery
from the subject injuries. She has continued with this routine, despite the
fact that improvement of her back pain has plateaued over the last two years
approximately. In my view, it is a stretch to say that these fitness-related
expenses were caused by the accident. Ms. De Villiers’ new-found
dedication to fitness is admirable, but the expense of pursuing this goal cannot
reasonably be laid at the feet of the defendant. These claims are disallowed.

Additional Mileage and Parking Expenses

[81]        
Ms. De Villiers seeks recovery of additional mileage charges for
attendances at her treating physicians, the MRI clinic, the back pain program
at Surrey Memorial Hospital, and the active rehab therapy facility. These total
$1,052.00, and are allowed. There are also unitemized parking expenses, the
dates of which appear to correlate to these allowable expenses, and I allow
them in the claimed amount of $92.25.

[82]        
The claims for mileage in respect of the attendance at the occupational
therapist for the cost of future care and physical capacity evaluations, and
attendance at the independent medical examination by Dr. Grypma, are
claimable as disbursements, rather than as special damages.

Tuition Costs

[83]        
Ms. De Villiers seeks recovery of tuition paid to the holistic
medicine college for her studies in acupuncture, $5,100.00. As described above,
she has undertaken this training as a substitute for working in the field of
aromatherapy massage, which she is no longer able to do. However, as I have
explained, I am unable to find on the evidence that her potential loss of
income as an aromatherapist was any greater than the residual earning capacity
she still enjoys. This expense is not recoverable.

Miscellaneous Expenses

[84]        
I allow the claimed cost of the robotic vacuum, the lumbar bolster
support, the TENS machine and pads, totalling $622.64. For the reasons
explained above under the sub-heading “Fitness Membership and Fees”, the
claimed fitness equipment costs are disallowed.

Cost of Future Care

[85]        
The occupational therapist Ms. Stacey states in her report that Ms. De
Villiers would benefit from consultation with a pain management specialist for
a review of her medications and to determine if participation in a
multidisciplinary pain management program would be suitable. She puts the cost
of such a program at a range of $5,175 to $10,350. Ms. Stacey is herself
not a specialist in chronic pain, and I can give no weight to her opinion. Such
a program has not been prescribed by either Dr. Schuurman or Dr. Chu.
Moreover, I have no evidence that such a program would offer any greater
benefit than the courses which Ms. De Villiers has already attended at
Surrey Memorial Hospital. On the evidence, I am not able to make this award.

[86]        
For the reasons given above, in respect of the special damages claims, I
make no award for the cost of future gym memberships, fitness expenses or, as
advocated by Ms. Stacey, kinesiology consultations.

[87]        
Ms. De Villiers’ injuries have diminished her capacity to perform
housework. There is a significant probability that her family will have to hire
contractors in the future to perform heavier tasks such as window cleaning.
There is a possibility of assistance being required for lighter tasks, and an
award in respect for such replacement services is appropriate, regardless of
whether they would be hired: see McTavish v. MacGillivray, 2000 BCCA 164
at para. 43. Ms. Stacey has presented estimates of costs for yard
maintenance and light house cleaning, of up to nearly $4,000 per year. In my
view, her opinion is founded on a misapprehension of the actual extent of Ms. De
Villiers’ current disability. The defence concedes that if causation between
the accident and the low back pain is established, an award in this respect in
the range of $2,000 to $5,000 would be appropriate. This is not an entirely
unreasonable position, though it is on the low side of what is necessary and
justifiable at present, and further in my view it understates the risk of her
condition deteriorating and more help being required than at present. I award
$12,000.

[88]        
Ms. De Villiers seeks the future cost of medication: $1494.48 for
Butrans, and $248.37 for Tylenol, a total of approx. $1,743.00 annually.
Utilizing the discount rate of 3.5%, I award the present value of such annual
expenditure over a period of 35 years, $34,861.

[89]        
Lastly, for the reasons stated above under the heading “Tuition Costs”, the
cost of any future acupuncture training is not recoverable.

Conclusion

[90]        
The plaintiff is awarded the following sums:

[91]        
The plaintiff will also have her costs at Scale B. If there are factors
affecting a costs award I am unaware of, arrangements may be made through
Supreme Court Scheduling, New Westminster to speak to the issue.

“A.
Saunders J.”