IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130430

Docket: M094365

Registry:
Vancouver

Between:

Angela Neyman

Plaintiff

And

Theodorus M.
Wouterse

Defendant

Before:
The Honourable Mr. Justice Walker

Reasons for Judgment

Introduction

[1]            
The plaintiff, Ms. Angela Neyman, currently 31 years old, was
injured in a low velocity rear-end motor vehicle collision on October 29, 2007
(“Accident”). She claims to have suffered injuries to her neck, upper and low
back, and left hip (near the gluteal muscle) that now, five years post-Accident,
are chronic and permanently impair her ability to earn income as an interior
designer. Although the defendant, Mr. Theodorus Wouterse, admits liability
and admits that Ms. Neyman was injured in the impact, his position is that
her injuries were relatively minor. Thus, at issue in this case is the extent
of Ms. Neyman’s injuries, the determination of which will determine the
assessment of the award to be made for non-pecuniary damages and whether any
other awards should be made.

[2]            
The assessment of Ms. Neyman’s injuries sustained in the Accident is
problematic due to the unreliability of her reporting and her failure to advise
the medical professionals who testified as expert witnesses of the extent of her
neck and upper back symptoms and headaches that pre-date the Accident. As well,
and as a result of dilatory conduct on his behalf in this litigation, which is not
attributable to his trial counsel, no expert medical evidence was tendered on
behalf of Mr. Wouterse (further details may be found at my reasons for
judgment indexed at 2013 BCSC 95). Nonetheless, I have determined, on a balance
of probabilities, that the Accident caused Ms. Neyman to suffer an injury to
her low back and left hip, an aggravation of her pre-existing neck and upper
back pain, an aggravation of her headaches, and a substantial aggravation of
her pre-existing mental condition known as “general anxiety disorder” (“GAD”).

The Accident

[3]            
In this section, I set out my findings of fact concerning the Accident
and the immediate aftermath.

[4]            
The Accident occurred on the Knight Street Bridge when Ms. Neyman
was driving northbound from Richmond to Burnaby to attend classes at the
British Columbia Institute of Technology (“BCIT”), where she was enrolled in
the interior design certificate program. The Accident occurred during the
morning rush hour. Ms. Neyman was driving her mother’s 1984 BMW 500 series
four-door sedan (which had a manual transmission). Mr. Wouterse was
driving his 2007 Pontiac Montana sport utility vehicle. Immediately following
impact, the parties got out of their vehicles, assessed the damage, and agreed
to meet at a side street off of the bridge to exchange driver contact
information.

[5]            
Ms. Neyman’s vehicle had come to a complete stop on the bridge
shortly before impact. She saw the Pontiac come towards her through the rear
view mirror. Ms. Neyman reacted instinctively to brace herself. Her right
leg was extended, although bent, and pressed against the brake pedal. Her left
leg was also extended, with her left foot pressed against the clutch pedal. Her
left hand was firmly pressed on the steering wheel, and her right hand was on
the gear shift. At impact, Ms. Neyman was not pushed or shifted forward; rather,
she felt her body twist in a counter-clockwise motion. No part of her body came
into contact with the vehicle upon impact. She was wearing a lap and shoulder
seatbelt.

[6]            
Mr. Wouterse’s vehicle was travelling at a slow speed, less than 10
kilometres per hour, when the impact occurred. Although he had applied the
brakes as soon as he saw the vehicles in front of him begin to stop, his
vehicle rolled into and bumped the rear of the BMW. Mr. Wouterse had been
travelling between 10 to 20 kilometres per hour immediately before braking. The
bridge deck was dry, and there was no evidence of any skid marks left by the
Pontiac.

[7]            
I agree with defence counsel that Ms. Neyman’s evidence that her
vehicle was pushed forward a foot was a guess. She conceded that in her
evidence. No expert evidence was tendered concerning the forces generated
through the BMW to Ms. Neyman on impact.

[8]            
Both vehicles suffered minor damage. The BMW required repair to its
muffler assembly and a strip located on the rear bumper at a cost of $88.40,
although it was never repaired.

[9]            
The impact was forceful enough, however, to cause the hard plastic front
grille of the Pontiac to come away from the body of the car. A passenger in Mr. Wouterse’s
vehicle found it lying on the bridge deck. Mr. Wouterse later glued the
grille together and re-affixed it to his vehicle. His vehicle’s front bumper and
fog lamps also required repair. The front grille assembly and front energy
absorber were replaced. The cost of repairs to the Pontiac totalled $1,495.40.

[10]        
Ms. Neyman felt some minor discomfort as she drove to BCIT. It
increased in intensity over time, and she began to feel pain. It became worse when
she arrived at school. She ended up crying due to the pain in her neck, upper
back and shoulders, and low back. She was excused from attending classes that
day. Thereafter, she drove to a friend’s home in Burnaby to rest. After Ms. Neyman
began to feel some relief after taking Advil, she drove to a medical clinic for
assessment and then home to rest. She was advised to continue to take Advil for
temporary relief when “the pain is bad”.

Ms. Neyman’s Account
of Her Pain and Suffering Following the Accident

[11]        
In this section, I set out a summary of Ms. Neyman’s account of her
pain and suffering following the Accident and the effect on her school, work,
and lifestyle.

[12]        
She provided an account of suffering from ongoing disabling neck, upper
back, low back, left hip, and left gluteal pain and stiffness, and vice-like
headaches following the Accident. During the week after the Accident, she
suffered from a stiff and sore neck, constant vice-like headaches located in
the front of her head, and low back and left hip pain that radiated down her
thigh and low back.

[13]        
She was “generally” better by summer 2008, but still suffered from a
sore but improved lower back, an improved but still stiff neck, and the “pinch”
in her left hip had decreased (but could be aggravated by twisting or awkward
postures).

[14]        
Ms. Neyman said that she currently suffers from:

(a)      a persistent stiff neck;

(b)      low back pain that “is a
constant struggle”, whether sitting or standing;

(c)      when
severe enough, low back pain that extends into her left hip (and on some
occasions, into the middle of her thigh) that causes a “pinching feeling”; and

(d)      a limp.

[15]        
By the end of the work week, her pain increases to the point that she has
to take an Advil “or two” and she feels physically spent. She begins to improve
once the weekend starts. Ms. Neyman blames all of her symptoms and
physical impairments on the Accident.

[16]        
Ms. Neyman’s evidence about her headaches was inconsistent. She
said that by some nine to ten months following the Accident, she suffered from
the occasional or odd headache. Later in her evidence, however, she said that
she currently suffers from vice-like headaches in the frontal region of her
head that can last “multiple” days in a row.

[17]        
Ms. Neyman also claims to suffer from a driving anxiety or phobia
that has improved with time.

[18]        
Ms. Neyman continues to obtain relief from her symptoms through
exercise (including swimming and participating in physical fitness camps known
as “survivor boot camp”), physiotherapy and massage therapy treatments, using an
ergonomic chair at work, and by altering her posture and seating position throughout
the day. She takes Advil, but only if she has a “really, really bad week”. Ms. Neyman
also obtains temporary relief from an analgesic cream that she applies to the
sore spots and from a heating device called a “Magic Bag” that she uses a
couple of times a week.

[19]        
The boot camps are intensive fitness programs set over a finite amount
of time (e.g., four weeks). Ms. Neyman seeks help from a trainer to modify
the program to allow her to participate at her own pace. Never having belonged
to a gym, Ms. Neyman is reluctant to join one because she thinks she is
better off in a program that is modified for her as opposed to attending generalized
fitness classes. She has continued to enroll in boot camps when her schedule
permits. Following medical advice, she has also taken swimming lessons to help
with her mobility and conditioning. She concedes that she is overweight and
needs to work on conditioning what she describes as her body’s “core”.

[20]        
Functionally, Ms. Neyman says the Accident has adversely affected
her social life with her boyfriend and friends because she is not able to
socialize as much on the weekends due to pain, fatigue, and ill mood. She has
encouraged her boyfriend to go out without her when she is suffering, in order
to avoid disrupting what should otherwise be a fun evening or event.

[21]        
She finds walking up hills or stairs and carrying out household chores
that require bending or lifting to be difficult. She can suffer a “pinch” in
her hip that stops her “in her tracks”. It is transient and resolves itself
with immediate cessation of activity.

[22]        
She gets help from her boyfriend and their roommate to perform the
heavier cleaning duties, but Ms. Neyman cooks the majority of the meals
and looks after cleaning the kitchen and lighter housework. She is able to
attend concerts in Vancouver and she travels to Seattle with her boyfriend for
weekends to watch baseball games. There are times that Ms. Neyman has to
stand or change postures during concerts and sporting events to relieve pain
and discomfort. As a result, she attends fewer concerts and movies than she did
before the Accident.

[23]        
Ms. Neyman graduated from high school in 2000. After drifting
through arts programs at Kwantlen College and Langara College, searching for courses
and a career that interested her, and receiving low and failing grades, Ms. Neyman
was eventually inspired by her father, who is an architect, to pursue interior
design as a potential career. To do that, Ms. Neyman could enroll in a
four-year degree program at Kwantlen College or a certificate program at BCIT
that is often pursued on a part-time basis.

[24]        
Ms. Neyman decided to pursue what she has described as a “compressed”
certificate program at BCIT that called for a significant course load of four
courses per semester. Ms. Neyman described this as a full-time course load.
She began taking courses in the fall 2007 semester. She took to interior design
immediately, and decided that it would be her chosen field.  She was now highly
motivated to get on with her career, and hoped to complete the certificate
program by July 2008. From there, she planned to pursue the diploma program,
which she hoped to finish by July 2009.

[25]        
Although Ms. Neyman was living at home to keep her costs down, she
felt that she needed to earn her own income to pay for the program because she
had already borrowed money from her parents to pay for her prior post-secondary
courses. To do that, Ms. Neyman continued to work significant hours (often
full-time) in sales at a Bombay Company furniture store.

[26]        
She began her employment with the Bombay Company close to four years before
the Accident in a temporary sales position that evolved over time into a
position that allowed her to work full time (or 40 hours) for many weeks at a
time. Just prior to the Accident, Ms. Neyman was responsible for
“merchandising of the store”, which included setting up the window and interior
displays, ensuring that the inventory levels of merchandise were appropriate,
and interacting with customers with sales. Her work also required her to lift
and move some furniture and climb ladders in the warehouse from time to time.
She also worked three to four hours per week for her father’s business to earn
additional income.

[27]        
She was, therefore, pursuing a very heavy school and work load when the Accident
took place during the first semester of her certificate program.

[28]        
Ms. Neyman’s academic records show that she was enrolled in a full
course load when the Accident occurred and that she continued to take a full
course load in the following winter 2008 semester. Her marks were inconsistent,
ranging from 96 per cent to a failing mark of 25 per cent (in the fall
semester). She was not able to complete a full course load in the spring/summer
2008 semester, and in those that followed. She passed some courses, failed others,
withdrew early or late for some, and for others, she simply stopped attending
class altogether. In some instances, she took the same courses three or four
times before obtaining a passing grade. Ms. Neyman attributed all of those
failures, as well as missed school projects, to her pain from the Accident.

[29]        
Most of her difficulties at BCIT concerned the physical aspects of
drafting plans by hand, which involved sitting on the edge of a chair drawing
plans to scale, while leaning over a drafting table for hours at a time. The
drafting table can be positioned at an incline ranging from 30 degrees to near
vertical depending on the draftsman and the task at hand. The drafter works to
keep the drafting pencil perpendicular to the page to “maintain a perfect edge
to draw a perfect line” and simulate computer modelling. Unfortunately, this
puts the drafter in an awkward posture through much of the manual drafting
process.

[30]        
Ms. Neyman claims that the injuries she suffered in the Accident
delayed her completion of the certificate program. She said that she completed
the requirements for the certificate program at the conclusion of the spring/summer
2010 semester. Yet her academic transcript shows her taking interior design
courses in subsequent semesters (i.e., fall 2010 and spring/summer 2011
semesters).

[31]        
Ms. Neyman decided to take a break from school because she had
“tapped out” her parents’ financial resources and “couldn’t do it physically
anymore”. She resumed her courses at BCIT in January 2013 in order to obtain a
diploma in interior design. Ms. Neyman says that she is required to
complete the program by 2014 in order to become certified as an interior
designer, which she is intent on doing.

[32]        
According to Ms. Neyman, lifting, sitting, and standing for long
periods has since the Accident aggravated her neck, back, and left hip pain.
She attributed her low marks in drafting projects to her inability to get her
drafting assignments done in time or in a proper manner because the drafting
stance or posture significantly aggravated her pain. There were a number of
times that Ms. Neyman turned in assignments that she knew were drawn
inappropriately (such as by free hand) or late, or both, due to the pain (which
she described as unrelenting at times) or fatigue (or both).

[33]        
Except for a brief period, Ms. Neyman has continued to work since
the Accident. She described problems at work due to the injuries she suffered
in the Accident. She claimed to have difficulty carrying out manual work for
her employers (initially, the Bombay Company and later, GC’s Door Express, a job
that involved lifting or moving heavy objects such as furniture or doors).

[34]        
Ms. Neyman began her most recent job with Pacific Rim Cabinets in
late March 2012. That company designs and manufactures custom kitchens. Her job
title is “operations support”, and she is paid $17.50 per hour. She is able to
adjust her posture and change positions throughout her work day. The majority
of her job duties involve drafting on a computer (with “Autocad” and “Planit”
software programs) as opposed to manual drafting. Evidence from one of Ms. Neyman’s
friends suggests that computer drafting is now employed in private industry as
the primary drafting tool as opposed to manual drafting.

[35]        
At Pacific Rim, Ms. Neyman works at a large drafting table that has
an adjustable incline. She has also been provided with an ergonomic chair,
which helps her perform her job. There are no heavy physical aspects to her job,
such as lifting. According to Ms. Neyman, Pacific Rim is extremely accommodating
to her back problems and what she describes as her “stomach issues” (a hiatus
hernia that causes heartburn) that are not related to the Accident. Pacific Rim
has allowed her to adjust her work hours to attend boot camp fitness programs
and medical appointments. Pacific Rim also supports her plan to complete her
diploma in interior design at BCIT while she is working full time. Ms. Neyman
enjoys her work there very much.

[36]        
In addition, Ms. Neyman continues to work part time for her
father’s custom millwork and renovation business, which she has done for many
years, maintaining its books and drafting its contracts.

Ms. Neyman’s
Pre-Accident Medical History

[37]        
I will now set out my findings of fact concerning Ms. Neyman’s
relevant pre-Accident medical history. In summary, Ms. Neyman suffered
from neck and upper back pain, headaches, and GAD prior to the Accident.
Drafting projects for her school work while at home caused her neck and upper
back muscles to spasm, requiring treatment for her pain from a registered
massage therapist.

Neck,
Upper Back, and Headaches

[38]        
Ms. Neyman suffered from neck and upper back pain and from headaches
prior to the Accident.

[39]        
Although Ms. Neyman denied suffering from any relevant pre-Accident
neck, back, and headache symptoms to the medical professionals and in her
evidence, the evidence of a registered massage therapist working at the Cook
Road Massage Therapy Clinic (“Cook Road Clinic”), including his clinical
records and the notes made by Ms. Neyman in them, demonstrates otherwise. Ms. Neyman
received massage therapy treatment for upper back and neck pain as well as for headaches
from massage therapist, Mr. Wendowsky, at the Cook Road Clinic on
November 4,11, and 25, 2005, and then again on October 5 and 12, 2007. The
notes contained in the clinical records were the subject of testimony given by Mr. Wendowsky
and were also put to Ms. Neyman in cross-examination. Despite Ms. Neyman’s
tendency to minimize her own notes and those made by Mr. Wendowsky, I am
satisfied that all of those notes and the evidence given by Mr. Wendowsky
accurately describe the symptoms Ms. Neyman reported and presented with, and
the treatment that was provided, on each visit.

[40]        
In completing her confidential medical history form for her first visit at
the Cook Road Clinic on November 4, 2005, Ms. Neyman reported that she suffered
from neck, shoulder, and upper back symptoms. She wrote on the form that
standing was an aggravating factor and described the duration of pain as “Too
long”. From the words that she used to describe her symptoms to Mr. Wendowsky
in November 2005, he understood that her neck and upper back pain “really
bothered her”, that it was chronic because it lasted for more than six months,
and that it was more prominent on the left side. She also reported that she
suffered from headaches, which were located between the nape of her neck and
the top of the back of her head. Those headaches were caused by muscle tension.
Three massage treatments in November 2005 brought relief to Ms. Neyman.

[41]        
Notably, when Ms. Neyman saw Mr. Wendowsky for treatment again
on October 5, 2007, several weeks before the Accident took place, she required
treatment because her left upper back and neck “seized” while working on a drafting
project at home for eight hours. Although her condition improved, she required
further treatment on October 12.

General
Anxiety Disorder

[42]        
Ms. Neyman suffers from GAD. It began in her adolescence and is the
result of a chaotic home environment. According to Dr. William Koch, a licensed
clinical psychologist called to testify as part of Ms. Neyman’s case, GAD
is a mental health condition “comprised of pervasive and difficult to control
worry accompanied by multiple symptoms of physical tension”. He identified a
number of traits and features of GAD, some of which applied to Ms. Neyman.
According to Dr. Koch, the disorder typically “waxes and wanes secondary
to variations in psychosocial stressors”, so that with “moderate amounts of
psychosocial stress, GAD sufferers will show greater impairment and be more
overtly distressed”.

[43]        
Individuals suffering from GAD tend to catastrophize, which means they
believe that something is far worse than it actually is. They are more
preoccupied with minor symptoms than others.

[44]        
Pain is considered chronic if it lasts longer than six months. According
to Dr. Koch, chronic pain conditions, particularly chronic back pain, are
“frequently associated with” GAD:

Chronic pain conditions are
frequently associated with Generalized Anxiety Disorder (GAD). In particular,
in a large community sample, GAD was more strongly related to the occurrence of
medically unexplained than other anxiety, mood, or substance use disorders, and
the combination of unexplained pain and GAD was associated with increased
disability and health care utilization, and reduced quality-of-life, compared
with pain disorder alone. GAD is particularly highly related to the presence of
chronic back pain. Further, the number of painful body sites and chronic pain
patients is related to the presence of GAD.

[45]        
Although she described “a long-standing history of excessive worry and
tension” to Dr. Koch, Ms. Neyman’s GAD symptoms were essentially in
remission immediately prior to the Accident despite a notable pre-Accident
event that took place in 2001. The event occurred when Ms. Neyman was attending
classes at Kwantlen College in Vancouver. She failed a course after she missed
a final exam that constituted 40 per cent of the final mark for the course
because she failed to make a note of the date. When she learned of what she had
done, she “spiralled” into a significant depression. She required treatment
from a psychiatrist and she failed to complete the other classes she was
enrolled in as a result.

[46]        
Dr. Koch thought that Ms. Neyman suffered from depression before
this incident occurred. He wrote in his report:

Ms. Neyman has a
childhood/adolescent history of being a somewhat shy child who was exposed to argumentative
parents who separated twice during their marriage. This has implications for
her anxiety proneness. She had difficulties with the teacher, as well as
surgery on a cyst in her back in grade 12 during which time she developed what
sounds like a clinically severe depression. This depression continued into her
first year at Kwantlen College (2000 – 2001) at the end of which she mis-recorded
the dates of her final exams, did not attend with resulting poor marks and then
attended psychiatric treatment.

[47]        
Dr. Koch opined, based upon Ms. Neyman’s account of her pre-Accident
history, that “[s]he recovered from her depression in short order after
attending treatment in 2001.”

[48]        
Test results conducted by Dr. Koch following the Accident reveal
that Ms. Neyman demonstrated a high level of catastrophizing despite low
levels of pain-related disability as compared to chronic pain “populations”. He
also found that despite her generally good insight, Ms. Neyman was most
reluctant to admit to her own common faults. She was more likely to blame
others for mishaps due to her own shortcomings. He also found her to be
resistant to treatment, a characteristic he described as highly personalized or
idiopathic, meaning that treatment may be more difficult and prolonged. He said
her “motivation for treatment appears low”.

[49]        
During trial, there were a number of times when Ms. Neyman’s
descriptions of her post-Accident physical symptoms were unduly magnified or
inconsistent. I attribute this to her GAD, which I go on to explain in a later
section was substantially aggravated by the Accident. Nonetheless, this is one
of the reasons why her account of her symptoms is not something that I am able
to rely upon at face value.

The Findings of the Medical
Professionals

[50]        
Since the Accident, Ms. Neyman has been examined by various doctors
from several different disciplines, as well as an occupational therapist. Those
who testified were:

(a)      Dr. Theo
van Rijn, a specialist in physical medicine and rehabilitation, an area of
medicine that is also referred to as “physiatry”;

(b)      Dr. Lisa
Caillier, also a physical medicine and rehabilitation specialist, who was
retained following Dr. van Rijn’s retirement from practice;

(c)      Dr. Gurdeep
Parhar, a general practitioner who specializes in occupational medicine, including
impairment and disability;

(d)      Min Trevor Kyi, an occupational
therapist; and

(e)      Dr. William Koch, a
psychologist.

[51]        
Neither the medical doctors nor Mr. Kyi found any objective
evidence of mechanical injury or neurological deficits to support Ms. Neyman’s
complaints of pain and disability. In reaching their opinions that Ms. Neyman
suffered soft tissue injuries from the Accident, the three medical doctors relied
very heavily on her subjective complaints of pain during examination and the
accuracy of her reports about her past history.

[52]        
The diagnoses made by Drs. Caillier and Parhar were assisted by an examining
technique known as “palpation”. Palpation is a longstanding technique used by many
doctors to test for the presence of injury. The examining doctor seeks to
obtain a patient’s subjective response to the application of digital pressure
to certain trigger points. If the patient complains of pain, that is considered
to be a subjective indicator. Because it involves subjective complaints, pain reported
during palpation is not, without anything more, determinative of injury. The
examining doctor must evaluate the results within the context of the patient’s
overall presentation and the history and consistency of symptoms, including the
consistency of subjective pain response upon palpation. Further, the pressure
must be applied with consistent force over time to obtain reliable results. Palpation
may also produce an objective indicator or response, such as muscle spasm or
tightness, to indicate injury. None of the medical doctors who testified found
any such objective evidence of injury from palpation, however.

[53]        
Decreased range of motion to the spine is another means to determine
injury, although it is not caused solely from injury. Thus, while decreased
range of motion caused by injury results from inflammation of soft tissue,
muscle, or ligaments, it can also result from tight muscles caused by cold temperatures,
physical activities, and certain inactivity, such as sitting or standing for
prolonged periods. The degree of restriction of range of motion can also vary
throughout the day and from day to day depending on activity or temperatures.

[54]        
 Impairment of range of motion is assessed from various perspectives or
planes. Some doctors use an instrument called a goniometer to test for range of
motion; others rely only upon their visual examination to determine
restriction. Overall, however, test results measured by the instrument are a
more accurate measure of the extent of decreased range of motion.

[55]        
Dr. Parhar was the only examining medical doctor to find evidence
of medically significant decreased range of motion in certain areas. His
findings were the result of his visual examination and were at odds with those
of Drs. van Rijn and Caillier.

[56]        
Doctors also look at the symmetry of the patient’s spine to detect injury.
Drs. van Rijn and Caillier found Ms. Neyman to be generally symmetric on
examination; in other words, they found no evidence of medically significant
asymmetry.

[57]        
Ms. Neyman told Dr. van Rijn that she suffered from some mild
neck and upper back pain prior to the Accident, but she denied suffering from
any pre-Accident pain and discomfort to Drs. Caillier and Parhar. Dr. Caillier
learned of it from her review of clinical records.

[58]        
I am satisfied that the information Ms. Neyman provided to Dr. van
Rijn minimized the nature of her pre-Accident symptoms. Dr. van Rijn set
out Ms. Neyman’s account in his report:

She had seen a massage therapist from time to time years ago
for some soreness in her neck and shoulder area when doing drafting. …

…

She has had physiotherapy and
massage in the past when she was doing a lot of work doing drafting or computer
work because of “soreness” of her neck and shoulder muscles but doesn’t recall
this as an ongoing and lasting problem. She had no difficulty undertaking her
usual (instrumental) activities of daily living. She was able to help out at
home as necessary and had no difficulty driving. … She doesn’t recall having
any difficulty with fatigue and was able to work long hours when working on
design ideas.

[59]        
Dr. Caillier also understood that Ms. Neyman’s pre-Accident
discomfort was minimal. She wrote in her report:

A review of clinical records indicates that from time to time
she would seek massage therapy for her neck and shoulder when she was involved
in drafting.

…

She denies having pre-existing
issues with pain. She reports that there were no issues with sleep, mood, or
anxiety.

[60]        
None of the medical professionals who testified on behalf of Ms. Neyman
were aware that she had suffered neck and upper back pain as well as headaches
prior to the Accident to the extent disclosed in the records of the Cook Road
Clinic or by Mr. Wendowsky in his testimony. As I have pointed out, the
assessments contained in their expert reports relied upon the accuracy of Ms. Neyman’s
account of her symptoms, including her pre-Accident history. None of the
medical experts had the benefit of reviewing the Cook Road Clinic records before
preparing their reports. I am satisfied from reading their reports and from
hearing their evidence that their reliance on Ms. Neyman’s account of her pre-Accident
history was highly significant to their opinions.

[61]        
To better appreciate the difficulties arising from the reliance placed
by the health care professionals on Ms. Neyman’s account of her pre-Accident
history, I have set out a summary of their overall opinions and findings. It
will become apparent that the diagnosis made by each medical doctor was based
in large part upon the accuracy of her history and the subjective complaints they
elicited from Ms. Neyman through “palpation”. It will also become apparent
that Ms. Neyman’s current ongoing pain and discomfort is primarily the
result of a substantial aggravation of her pre-existing GAD that was caused by
the Accident, which, unfortunately, has gone untreated.

Dr. van
Rijn

[62]        
Dr. van Rijn’s conclusions concerning the cause of Ms. Neyman’s
injuries, occupational restrictions, and future care needs are based upon her
reports of pain and impairment. There are no objective findings from his
examination.

[63]        
When Dr. van Rijn examined Ms. Neyman on October 27, 2010,
nearly three years post-Accident, he elicited subjective complaints of pain
from Ms. Neyman in three different areas: the neck, left hip, and low
back. Dr. van Rijn did not find any decreased range of motion or any
objective signs such as muscle spasm or tightening, nor did he find any
neurological or vascular abnormalities. During the examination, Ms. Neyman
told him that her neck and upper back had “substantially improved”, although
she still suffered from tension along her shoulder blades. Her main complaint
was ongoing problems with her lower back and left hip area.

[64]        
In describing the neck pain reported by Ms. Neyman, Dr. van
Rijn ruled out any objective indicators in the cervical spine and upper back.
He wrote:

She had full, unrestricted and pain free movement of her
neck, although she did complain of lower neck stiffness at the extremes of
ranges. Forward head flexion produced some aching along the left shoulder blade
area. No muscle tightening was noted in this area (region of the left
rhomboid – which originates in the upper thoracic vertebrae and runs obliquely
downwards to attach to the inner margin of the shoulder blade. Shoulder ranges
of motion were full, unrestricted and pain free.

No other musculoskeletal, neurological, or vascular
abnormalities were noted in the upper extremities.

[Emphasis added]

[65]        
For her low back and left hip pain, Dr. van Rijn elicited
complaints of pain when he palpated certain areas. Stress testing of lumbar and
sacroiliac joints also elicited reports of pain. But there were no objective
signs of injury found. Dr. van Rijn found Ms. Neyman’s stance and
gait to be normal:

When standing she had a relatively straight spine and a level
pelvis. She complained of pain in the lower back, especially on the left side,
in the left iliolumbar triangle (the area around the base of the spine and the
associated hemipelvis where numerous ligamentous and muscular tissues originate
or insert), in the left sacroiliac region and in the left buttock when
palpated. She had full forward flexion without pain. She could assume an
upright posture without a pathological reversal of her spinal curve. Extension
with or without side flexion was somewhat more troublesome with some symptoms
on the left side. Provocative testing for nerve root irritation in both lower
extremities was unremarkable. Tests ostensibly stressing the left lumbosacral
and sacroiliac joints caused pain. Bilateral active straight leg raising
increased her back symptoms.

…

On the day she was seen in my office, there was no pelvic
asymmetry, although she is aware this may occur from time to time.

[Emphasis
added]

[66]        
Dr. van Rijn concluded that Ms. Neyman suffered from soft
tissue injuries to her neck and upper back that had “substantially resolved”
over time. He postulated that the stiffness in her shoulder blades “could
be due to residual effects of the accident” (my emphasis).

[67]        
Dr. van Rijn did not provide any specific diagnosis concerning her
lower back and left hip. Instead, he concluded that Ms. Neyman suffers
from “non-specific symptoms”, a term which he says is a descriptor (as opposed
to a diagnosis) of pain generated somewhere from the lower back that does not
involve neurological processes or an inflamed joint. He explained that it is
possible in appropriate circumstances to isolate the location of the origin of
non-specific back pain with anesthetic injections, but that has not been done
in this case.

[68]        
Dr. van Rijn also did not provide a definite opinion concerning the
cause of Ms. Neyman’s low back and hip complaints. He postulated:

At the time of the accident she had her foot on the brake and
her left foot on the clutch: this body position at the time of impact may
have caused asymmetrical forces to act upon her lower extremities and pelvis,
resulting in more intense complaints in her left lower back, buttock,
sacroiliac region, as a result.

[Emphasis
added]

I am satisfied that the absence of any finding of pelvic asymmetry
explains Dr. van Rijn’s hesitation to attribute Ms. Neyman’s ongoing
low back and left hip complaints to the Accident.

[69]        
Lastly, Dr. van Rijn did not find any objective basis for Ms. Neyman’s
headaches. Instead, he based his opinion that her headaches, which he
attributed to muscle tension, were caused by the Accident upon her report that
she did not suffer any headaches before the Accident.

[70]        
Inexplicably, given the absence of any objective indicators of injury
and his qualified opinions, Dr. van Rijn was able to provide a more
certain prognosis. Given the duration of her symptoms, he stated that it is “likely”
that Ms. Neyman’s lifestyle and quality of life will be permanently
affected because of the ongoing Accident-related symptoms.

Dr. Callier

[71]        
Dr. Caillier was more definitive in her opinions. She saw Ms. Neyman
on June 22, 2012, as a result of Dr. van Rijn’s retirement. Dr. Caillier
diagnosed Ms. Neyman to be suffering from headaches and from chronic pain in
the neck, tops of her shoulders, upper back region, low back, and left hip. She
concluded that all those symptoms originate from soft tissue injuries, are
“residual” in nature, and are caused by the Accident. Dr. Caillier’s diagnosis
was predicated upon the accuracy of Ms. Neyman’s history, her review of certain
medical clinical records, and her findings on examination. Included in that
history was Ms. Neyman’s denial of “any pre-existing issues” with pain.

[72]        
According to Dr. Caillier, Ms. Neyman’s “main limiting
physical factor is her left low back pain.” Ms. Neyman is “limited in
activities that involve repetitive twisting, repetitive bending, or sustained
posturing, and heavier lifting and carrying” as a result of that pain.

[73]        
Dr. Caillier’s positive findings on examination were based upon Ms. Neyman’s
reports of pain on palpation. She did not find any restriction to range of
motion. She provided the following summary of her findings:

Examination today reveals soft
tissue tenderness to palpation involving the neck, low back and left greater
than right gluteal regions. There is tenderness to palpation involving the
piriformis muscle and piriformis syndrome testing does cause pain involving the
left piriformis muscle region. It does not cause pain to radiate into the leg.
There is weakness noted of her core and abdominal muscle strength, as well as
her hip abductors, and the hip abductor weakness is worse on the left side as
compared to that of the right. There is also weakness about the left hip girdle
itself, and this appears to be related to pain involving the left gluteal
region. There is no clinical evidence to suggest a radiculopathy, peripheral
neuropathy or myelopathy that is contributing to or is part of her ongoing
symptoms.

[74]        
Dr. Callier did not find any direct objective evidence of injury (such
as muscle tightening or spasm on palpation) or any clinical evidence to
indicate neurological involvement in any of Ms. Neyman’s ongoing symptoms.
It is also significant, in my view, that in June 2012, two years following Dr. van
Rijn’s examination and over four and one-half years post-Accident, Dr. Caillier
found the range of motion for Ms. Neyman’s neck, shoulders, and low back to
be within normal limits.

[75]        
Based on Ms. Neyman’s history and complaints on palpation, Dr. Caillier
thought the “likelihood” of Ms. Neyman becoming “pain-free is poor”. Her
prognosis was that Ms. Neyman “is likely to have on-going pain now and
beyond the next 12 months.” Dr. Caillier made the same diagnosis
concerning Ms. Neyman’s headaches based on what she described as their
“chronicity”.

[76]        
At the same time, Dr. Caillier was optimistic that Ms. Neyman’s
neck and upper back symptoms would not limit or restrict her activities,
stating, “despite what will likely be the chronicity of the symptoms these
symptoms should not limit or restrict her to participate in the functional,
recreational and vocational activities of her choosing.” She expressed the
opinion that Ms. Neyman’s low back and left hip symptoms can be “better
managed and improved” with an active rehabilitation program and exercise. Further,
she said that Ms. Neyman’s symptoms should improve with a rehabilitation
and exercise program directed by a person with specialized knowledge such as a
kinesiologist. Ms. Neyman is at risk, however, of future flare-ups and
restriction in function if she were to be involved in “another traumatic event”
or if she “sustained further injury to the low back and left gluteal hip”.

[77]        
According to Dr. Caillier, Ms. Neyman is capable of participating in a
regular exercise program and working as an interior designer even with her left
low back pain symptoms. Dr. Caillier was also confident that Ms. Neyman is
capable of completing the interior design diploma program on a part-time basis
should she choose to work full-time hours.

Dr. Parhar

[78]        
Dr. Parhar became Ms. Neyman’s personal physician in February
2010, approximately three years after the Accident.

[79]        
Dr. Parhar opined that Ms. Neyman suffered the following
injuries from the Accident: (a) musculoligamentous injuries of the cervical,
thoracic, and lumbar spine; (b) muscle tension headaches; (c) left hip
musculoligamentous strain; (d) anxiety symptoms and worsening of a prior
generalized anxiety disorder; and (e) chronic myofascial pain. His diagnosis
was based upon three sources.

[80]        
First, he relied on two “findings” from his examinations of Ms. Neyman:
her subjective reports of pain on palpation and his findings of decreased range
of motion. Dr. Parhar found decreased range of motion in the cervical and
lumbar spine on three different occasions in May and July 2011 and then in
September 2012.

[81]        
Second, he relied in part upon his review of other experts’ reports and
clinical records.

[82]        
Third, he relied on the accuracy of Ms. Neyman’s reporting. Dr. Parhar
stated in his report that he assumed that Ms. Neyman’s account of her pre-Accident
history and post-Accident symptoms was correct:

I assume to be true what Ms. Angela Neyman has told me
with respect to her symptoms, the impact of her symptoms on her functioning
ability, and her response to various treatment modalities.

…

Prior to the motor vehicle collision of October 29, 2007,
Angela had been well.

…

She did not receive any treatment
for any medical condition. Specifically, she did not have any prior problems
with neck pain, back pain, left hip pain, headaches, or anxiety.

[83]        
During his evidence at trial, Dr. Parhar sought to qualify his
comments in the last paragraph, stating that Ms. Neyman did not suffer from any
pain immediately prior to the Accident. To my mind, that clarification makes no
difference because Ms. Neyman did not tell him about any relevant
pre-Accident medical history.

[84]        
Dr. Parhar concluded that all of Ms. Neyman’s symptoms are due
to the Accident and that her injuries had reached their “maximum medical
improvement”, leaving her with permanent impairment, including impaired future
income earning capacity, even though musculoligamentous injuries resolve within
six to nine months for 90 per cent of the adult population.

[85]        
In all, I found that Dr. Parhar relied upon and accepted the
accuracy and reliability of all of Ms. Neyman’s subjective complaints of pain, her
pre-Accident medical history, and her description of her post-Accident symptoms
and work history. That in turn, unfortunately, led him to an erroneous conclusion
that all of her presenting symptoms, including restriction to range of motion,
must be due to the Accident.

[86]        
Furthermore, his findings concerning restriction to range of motion
stand alone. His findings were based upon visual examination and not from
instrument readings. When asked if he knew that he was the only medical doctor
who found restriction of range of motion, Dr. Parhar drifted, albeit
unwittingly and with the best of intentions, into advocacy in favour of his
patient. In answering the question, I found that he engaged in argument,
suggesting, but without being aware of their trial testimony to the contrary,
that the effect of certain portions of the reports prepared by Drs. van Rijn
and Caillier suggest that they found restriction to range of motion.

[87]        
In the circumstances, I am unable to rely upon his diagnosis and
prognosis.

Mr. Kyi

[88]        
Mr. Kyi is an occupational therapist who practises in the field of
functional capacity evaluation. Mr. Kyi is not a medical doctor. His
expertise is in function and disability. Mr. Kyi is also a clinical
associate professor with the University of British Columbia, Faculty of
Medicine, Department of Occupational Science and Occupational Therapy. In that
position, he is the first non-physician recipient of the Faculty of Medicine
award for outstanding clinical teaching from the University of British
Columbia. He has received post-graduate training in the United States and holds
a diploma from the University of Florida in functional capacity evaluation.

[89]        
Mr. Kyi was not qualified as an expert to diagnose the cause of any
limitations to functional capacity. Mr. Kyi’s role was to determine limits
that existed at the time the functional capacity testing was performed. For
example, he cannot say whether the restrictions to function that he found in Ms. Neyman’s
test results were caused by the Accident, whether they result from a condition
that pre-dates the Accident, or whether they are the normal result of
end-of-the-day fatigue (spoken of by some of the medical doctors) that followed
after six and one-half hours of physical activity. It is clear from his report,
however, that when carrying out his testing and evaluation of Ms. Neyman, Mr. Kyi
assumed that all of her limitations were caused by the Accident.

[90]        
Mr. Kyi explained that occupational therapists prefer to determine
restriction to range of motion from repetitive muscle tests as opposed to
relying on an evaluation that combines subjective complaints and range of
motion tests from either visual examination or measurements based on readings
from a goniometer. He explained that his testing protocols, which he said are
also used by other occupational therapists, are considered to be a highly
objective and reliable medical technique to detect physical function, capacity,
and disability.

[91]        
Mr. Kyi teaches his students at the University of British Columbia not
to rely on subjective complaints from palpation or a range of motion
examination using a goniometer because they produce inconsistent and unreliable
results. In his opinion, the better way to determine range of motion is to test
muscle speed through muscular velocity testing, which requires a person to be checked
for muscle strength at the beginning of the day and then again at the end of
the day after the patient has participated in a series of physical tests.

[92]        
Ms. Neyman did not tell Mr. Kyi about any of her pre-Accident
pain symptoms. Instead, she led Mr. Kyi to believe that her pre-Accident
history was not relevant. In his report, Mr. Kyi wrote:

She reports the absence of any limiting physical or
psychological issues just prior to her MVA.

Medical History: Ms. Neyman’s
history includes a car accident a couple of years prior to her 2007 MVA, but
without any notable injury. She also had some recent digestion issues, which
she was told relate to a hernia. She explains that this does not limit her
general function, though if she drinks certain types of alcohol, she feels a
strong pressure inside her abdomen.

[93]        
Mr. Kyi accepted and relied upon the accuracy of the history that Ms. Neyman
provided. The only way in which the information provided to Mr. Kyi about
her pre-Accident history could be correct is if by “just prior” to the Accident
on October 29, Ms. Neyman was referring to a short time before the Accident
because she had had a massage therapy treatment at the Cook Road Clinic on
October 12.

[94]        
Mr. Kyi put Ms. Neyman through a battery of tests for
approximately six and a half hours, including some specifically designed to
detect feigned pain behaviour. None was found. Ms. Neyman consistently
demonstrated top scores for effort. Many tests involved sustained arduous
physical activity. Mr. Kyi concluded that Ms. Neyman’s subjective
reports of pain were consistent with the test results. He found that Ms. Neyman
often understated her difficulties and functioning capacity restrictions while engaged
in certain tests. He perceived her to be highly motivated to complete the
testing. His report and assessment methodology are very comprehensive.

[95]        
The tests conducted by Mr. Kyi illustrate a nuanced analysis of
range of motion. For example, musculoskeletal screening showed Ms. Neyman to
have an “active range of movement within functional limits for her neck, trunk
and upper and lower extremities” except for neck rotation and tilt. Her neck
was found to be “tight and limited bilaterally”, with a range of motion limited
to approximately 75 per cent of full range. Yet certain muscle velocity tests
showed that in some areas, she suffered significantly decreased muscle speed in
her neck, shoulder, mid-back, and low back for some but not all physical
activities following sustained physical activity throughout the day.
Specifically, restriction to range of motion was detected for sustained static
bending, looking down, forward reaching, dynamic mobility and walking, and low wall-reaching
(low back only). No decline in function was found for light strength handling
at ideal work height (i.e., close to body and no bending), upper extremity
strength and grip control, and high wall-reaching for neck and shoulders. Mr. Kyi
also observed a mild limp in her left leg and a slowed walk at the end of the
testing day.

[96]        
Mr. Kyi concluded from the test results that without certain
accommodations made by her employer, Ms. Neyman is not, at present,
physically capable of working as an interior designer on a continuous, full-time
basis due to specific physical postures involved with that occupation. He said that
her main problem is with static standing (i.e., standing generally in one place
and not being able to move beyond three feet). Otherwise, he said that Ms. Neyman
is “quite good if she can move around”. Her difficulties with sitting were, he
explained, somewhat outside the norm because most people begin to experience
discomfort after sitting for two hours; Ms. Neyman’s discomfort starts as
her sitting approaches two hours.

[97]        
In Mr. Kyi’s opinion, certain physical rehabilitation (gym
membership with a physical trainer and physical therapy) and ergonomic devices (high
back support, orthopedic pillow, and angled document equipment holder) will
help to “maximize Ms. Neyman’s vocational feasibility”. With that assistance,
she will be “durable” to work 20 to 40 hours per week in her chosen field, with
an ability to tolerate a 40-hour work week, except for those times when she
suffers an exacerbation of her symptoms.  Thus, if Ms. Neyman “pushes it”
and “is willing to put up with some pain”, there will be some weeks where she
can work in the manual (as opposed to computer) drafting positions for 40 hours
per week. Mr. Kyi added a caveat, however, that “there will be times where
she will have a lot of trouble maintaining a 40 hour week” due to her low back
problems.

[98]        
Accordingly, if Ms. Neyman chooses to work as an interior designer,
then Mr. Kyi thinks that she should work at the lower end of a 20 to 40
hour work week unless she can find employment where accommodation is made for
her physical impairment, such as where she works now.

[99]        
In terms of Ms. Neyman’s ability to perform other activities, Mr. Kyi
opined that she can perform household tasks including cleaning and laundry, albeit
in some cases for a shorter period of time, and physical exercise.

[100]    
Other than these limitations, I found Mr. Kyi’s description of many
of the physical activities that Ms. Neyman is currently able to perform to
be encouraging.

Dr. Koch

[101]    
Dr. Koch evaluated Ms. Neyman on November 16, 2010 for two and
a half hours. In addition to obtaining her history, he had in hand Dr. van
Rijn’s report and clinical records from her doctor’s office and a treating
physiotherapist. He did not have any pre-Accident clinical records, including
the Cook Road Clinic records, available for review.

[102]    
In Dr. Koch’s opinion, Ms. Neyman’s pre-existing GAD was “substantially
aggravated” by the Accident, her reported pain and discomfort, and her
subsequent difficulties at school. He also diagnosed a chronic pain disorder.
In his opinion, Ms. Neyman’s “chronic pain difficulties emanated from”
physical injuries related to the Accident and “have been made worse by her GAD
with its excessive worry and physical tension”. Dr. Koch ruled out the
presence of post traumatic stress disorder, however.

[103]     Dr. Koch
described Ms. Neyman’s GAD and chronic pain to be “mutually maintaining
conditions. Ms. Neyman’s tendency to ruminate and catastrophize about pain
sensation and to avoid recreational activities because of the fear of re-injury
will maintain her chronic pain condition”. The worry and tension that forms the
core of GAD, he said, makes her more concerned about and more vigilant towards
pain sensation, and thus more risk averse with respect to activities that might
(or might not) aggravate aspects of her pain and headaches. Also, an increase
in psychosocial stressors will likely cause her to worry more and experience
more tension, which in turn will increase her pain and pain-related disability.

[104]    
Ms. Neyman did not tell Dr. Koch about her pre-Accident neck and
shoulder pain or headaches. From his review of Dr. van Rijn’s records, Dr. Koch
thought her pre-Accident history was insignificant:

A medical legal report by Dr. van
Rijn (October 27, 2010) noted that Ms. Neyman was involved in a previous
MVA in 2005, but did not sustain any injuries, nor did she have any ongoing
problems in her lower back or left hip in the past.

[105]     Even
though Dr. Koch wrote that, “[t]here were no pre-MVA clinical records
available for review, [making it] difficult to determine if Ms. Neyman
experienced any pre-existing psychological, emotional or physical problems
prior to the October 2007 MVA”, he was able to describe her pre-Accident
difficulties with school, mood, and social life that appear to have worsened
while she was in grade 11:

… Around Grade 11, her grades began to suffer. Then in
grade 12, she had difficulties in school that she attributed to a personality
conflict with an English teacher. As a result, she ended up taking English 12
in the summer post-graduation to improve her mark.

After high school, she attended Kwantlen College and worked
part time at various businesses, including a pizza delivery store, retail
outlet, and limousine company. By her report, she "stayed home a
lot", found meeting people hard, and described herself as "kind of
angry." She eventually ended her program at Kwantlen 2 courses short of an
associate of arts degree because she did not like her program. During her time
at Kwantlen, she suffered a discouraging mishap when she wrote down the dates
of her final exams for one term incorrectly, thus missing her exams and harming
her marks. She described herself at that time as "angry and
depressed" and evidently then entered into therapy with a Richmond-area
psychiatrist for a short time.

She then tried Langara College briefly in 2005-2006 but
"hated Langara". During this time she was working part time at a
local furniture retailer. In the fall of 2007, she began studying interior
design at BCIT, about which she was enthused as she had liked visual arts in
school and her father worked in the construction and design business. By her
report, she "loves" her course work which is a mixture of drafting
and planning design elements. She made it through that term but had to drop
classes the next term because of the interference of her back pain.

…

… She did report one previous
episode of depressed mood between approximately 2000 (in her final year of
secondary school) and the Spring/Summer of 2001 (her first year at Kwantlen
College) when she was depressed nearly every day, low in interest, socially withdrawn,
feeling worthless, and engaging in minor self-harm behaviour (non-injurious
scratching of self) because of her frustration with herself. By her report, she
was depressed most of her first year at Kwantlen. Thus, it is likely she
suffered a Major Depressive Disorder at that time. The triggers for her low
mood at that time were her difficulties in Grade 12 with a teacher, relative
social isolation, and then culminating in missing her final exams at Kwantlen
in the Sprig [sic] of 2001. She sought treatment from a Richmond area
psychiatrist and did well without psychotrophic medications.

[106]    
Although Ms. Neyman encountered difficulties with her GAD before
the Accident, any GAD symptoms she suffered from were so mild that her GAD was essentially
in remission when the Accident occurred . She was in excellent spirits because
she had finally embarked upon a career path in interior design, which she
enjoyed.

[107]    
Dr. Koch also accepted the veracity of Ms. Neyman’s statements
about her fear of driving and diagnosed it as a phobia, albeit not a
substantial one. According to Dr. Koch, phobias are “mental disorders that
are characterized by ‘marked and persistent fear of clearly discernible,
circumscribed objects or situations,’ and are usually accompanied by some form
of behavioral avoidance.”

[108]    
During his interview with Ms. Neyman, Dr. Koch found her to be
on guard to disclose emotional distress or difficulties, appearing reluctant to
admit to psychological difficulties. Some of her test results were consistent
with indicators of bi-polar disorder. Dr. Koch found her interest in
psychological treatment to be below average, “even in comparison to adults who
are not seeking mental health treatment”.  Ms. Neyman’s defensiveness to
psychological testing adversely affected her test results. Some of them are
not, on their face, compatible with a diagnosis of GAD. That, of course, causes
significant concern for their overall reliability. As a result, Dr. Koch
qualified the opinions that he expressed in his report with the following
caveat:

My confidence in the opinions
below is limited by (a) Ms. Neyman’s significant defensiveness in disclosing
emotional distress or difficulties, and (b) the absence of pre-MVA health
records. I have not yet received a completed family member report as collateral
information about Ms. Neyman’s functioning. If I receive such a report in
the near future, I will write an addendum to the current report.

If an addendum report was prepared, it was not tendered into
evidence.

[109]    
I have set out the following excerpt from the results of Dr. Koch’s
diagnostic interview because his opinion about her GAD, which I accept, summarizes
Ms. Neyman’s difficulties arising from her GAD and explains why Ms. Neyman’s
physical injuries and symptoms, which the medical doctors who testified conceded
resolve within one year in much of the general population, have not yet
resolved. Dr. Koch reported as follows:

She described a long-standing
history of excessive worry and tension. By her report, she worries excessively
and uncontrollably about work/school, her own health (particularly the impact
of her back pain on her ability to complete school in her design program and
work in that area), finances (currently has [approximately] $29,000 in debt as
a student), and punctuality (leaves home at 6:45 a.m. for a 9:00 a.m. class
when the commute is only 30 minutes. She worries excessively but more
controllably about interpersonal matters and her parents’ health (father
evidently has health issues, both parents smoke). Associated with her excessive
worry, she suffers frequent restlessness, muscle tension (back and neck), as
well as intermittent concentration problems (particularly in school),
irritability, and occasional mild fatigue. Her worry is said to interfere with
studying and creative work (e.g., creating designs for her current class
project), and to impact negatively on her mood. By her report, she has “always”
been a worrier… “kinda grew up being a worrier… grew up in chaos with my
parents”. By her report, her worrying became more severe and pervasive
following the subject MVA "never really worried about school before,"
and now also worries about her back pain and its trajectory (worsening or
improving). Notably, since the subject MVA, she has had sufficient difficulties
in school that she is now taking a course for the third time and must pass it
this term. By her report, her difficulties with this course are related to her
back pain, inability to sit for long periods of time at a drafting board, and
concentration problems secondary to pain and worry. From the above, it seems
that she meets criteria for a Generalized Anxiety Disorder that has been
present since adolescence at least, but that worsened substantially secondary
to her back pain and its interference with her current school program.

[110]    
Dr. Koch was firmly of the opinion that Ms. Neyman’s back pain
and headaches were “unlikely to improve substantially in the absence of
appropriate psychological and physical treatment”. Unfortunately, he found Ms. Neyman’s
motivation for psychological treatment (which he thought to reflect a pre-Accident
characteristic) to be low.

[111]    
Dr. Koch recommended that Ms. Neyman attend a pain clinic to
receive psychological and physical therapy to cause her GAD to go into
remission, even though he thought that Ms. Neyman would not be as good a
candidate as others due to her defensiveness. He wrote the following in November
2010 about her circumstances and the type of treatment that was required:

Generalized Anxiety Disorder is a chronic condition that
typically waxes and wanes secondary to variations in psychosocial stressors.
Under ideal psychosocial circumstances, GAD sufferers may fare well with little
overt display of anxiety, less healthcare seeking, and little functional
interference. With moderate amounts of psychosocial stress, GAD sufferers will
show greater impairment and be more overtly stressed. The reader should bear in
mind that Ms. Neyman currently has some pressure to pass a course that
will evidently have implications for her eventual graduation, that she has
substantial debt from student loans and health care (e.g., physio) bills, and
lives with her parents who evidently have a somewhat stressful relationship.
Thus, she has plenty to worry about. In the near future, presuming she passes
her course and program, she will have the stress of starting a career, paying
off debt, sustaining her romantic relationship and continuing her relationship
with her parents. Thus, it is unlikely that Ms. Neyman’s GAD will remit
any time in the foreseeable future without formal treatment.

…

She is an obvious candidate to attend a multidisciplinary
pain clinic where she could simultaneously receive psychological treatment for
her worry proneness and catastrophic reactions to pain, teach her to reduce psychologically-mediated
muscle tension, as well as receive those physical therapies necessary to
improve her core fitness. …

… Clinical trials of treatment for GAD suggest a minimum
of 15 hours of treatment, and one should likely add on another 10 sessions
for the specific phobia. The cost of private psychological treatment is
currently $170 per hour.

[Emphasis
added]

[112]    
I was not provided with an estimate of the cost for Ms. Neyman to
attend a pain clinic.

[113]    
If Ms. Neyman were to attend treatment, which she had not done as
of trial, then Dr. Koch’s prognosis is “guardedly positive”:

Overall, I think her prognosis for improving at this time is
guarded without treatment, guardedly positive with appropriate treatment. The
reader should note that Ms. Neyman is somewhat defensive with respect to
self-disclosure and somewhat resistant to treatment, which characteristics will
create obstacles for psychological treatment.

…

It is striking, and disappointing, to me that this young
woman who has two clearly interrelated health conditions (GAD and Chronic Pain)
has not had any formal treatment for them other than some physiotherapy that
was discontinued.

Non-Disclosure
of Ms. Neyman’s Pre-Accident Pain

[114]     None of Dr. van
Rijn, Dr. Caillier, Dr. Koch, or Mr. Kyi were specifically asked
whether their opinions would change if they had known of Ms. Neyman’s pre-Accident
symptoms and treatment. Nor did they offer up their opinions. Dr. Parhar
was the only medical expert to provide one.

[115]     Dr. van
Rijn did acknowledge, however, that if the information contained in the Cook Road
Clinic records was correct, then the general information from Ms. Neyman,
which he relied upon in his assessment, was incorrect.

[116]     Dr. Cailler
speculated about the meaning and effect of the Cook Road Clinic records. She assumed
that Ms. Neyman’s pre-Accident symptoms were insignificant and had resolved
with the massage therapy treatments, because no other records had been produced
showing any other complaints of pain or treatments. As for Mr. Wendowsky’s
note describing Ms. Neyman’s upper back and shoulder pain as “chronic”, Dr. Caillier
said that much depends on the context in which the information was conveyed to
the massage therapist. For example, she hypothesized that Ms. Neyman may
have only suffered from pain for two days, which she may have thought to be too
long, yet failed to provide a time frame to the massage therapist. Unfortunately,
when she gave that evidence, Dr. Caillier was not aware of Mr. Wendowsky’s
evidence (which I have said I accept) that Ms. Neyman led him to believe
that she suffered pain for at least six months.

[117]    
 Dr. Parhar dismissed outright any connection between Ms. Neyman’s
pre-Accident back and neck pain and headaches with her current symptoms, despite
being shown the Cook Road Clinic records. But he did not take the opportunity to
reflect on any of the following: the meaning of those records; his patient’s
failure to provide accurate reporting over some 13 sessions she spent at his
office in 2011 and 2012; the reason(s) why his range of motion findings
differed so substantially from those found by Drs. van Rijn and Caillier in
2010 and 2012, respectively; and the reliability of Ms. Neyman’s
subjective complaints made to him during palpation.

[118]    
In another instance, Dr. Parhar was not prepared to reconsider his
opinion that Ms. Neyman had to quit her job at the Bombay Company due to
injuries suffered in the Accident, even after being told that she had only
missed two shifts of work in the three years following the Accident and that
she eventually quit her job due to a personality conflict with her supervisor. In
explaining why her testimony at trial to the contrary would not change his
opinion, Dr. Parhar appeared argumentative. He described her employment as
a warehouse job as opposed to what it actually was – a sales position that required
occasional work in the warehouse. He also said that “people sometimes continue
in a job despite sort of ridiculously high amounts of pain symptoms for various
reasons”, even though his characterization of the intensity of the pain Ms. Neyman
endured while working at Bombay Company did not accord with her own evidence at
trial.

[119]    
Finally, Mr. Kyi’s findings do not address whether any of Ms. Neyman’s
functional limitations were caused by something other than the Accident.

[120]    
In the circumstances, and unfortunately, the evidence provided by the
medical doctors concerning Ms. Neyman’s pre-Accident symptoms and
treatments was of limited assistance to my assessment of damages.

Reliability and Credibility
of the Plaintiff’s Evidence

[121]     Ms. Neyman’s
account of her pre-Accident history to the medical experts was inaccurate and
misleading. At trial, she minimized events that challenged her account of
symptoms. In some instances, her evidence and attitude reflected poorly on her
overall credibility. Ms. Neyman is pre-disposed to catastrophize and is
unduly focused on the Accident as the cause of all of her symptoms. In addition
to her failure to disclose the true extent of her pre-Accident neck and upper
back pain and headaches to her testifying medical experts, if at all, Ms. Neyman
provided inconsistent advice to them concerning other symptoms that she blames
on the Accident. In contrast to her presentation before Mr. Kyi, I found that Ms. Neyman
tended to overstate the effects of the Accident on her work and school work,
while minimizing all events and symptoms unrelated to the Accident that suggest
she was enjoying a much higher level of function.

[122]     I also
found Ms. Neyman’s efforts to explain her failure to advise the medical
professionals of her pre-Accident symptoms and treatment to lack credibility.

[123]     As an
example, I found that Ms. Neyman’s justification for her failure to tell Dr. Caillier
about her pre-Accident headaches (i.e., because they were different in location)
was an inappropriate basis for Ms. Neyman to lead Dr. Caillier to
believe that she was wholly symptom-free prior to the Accident, especially when
she knew that Dr. Caillier wanted to know about any pre-Accident symptoms.

[124]     In another
instance, Ms. Neyman was pressed in cross-examination to explain why she
did not complain of vice-like headaches – on which she placed considerable
emphasis in her evidence in chief – when she sought medical attention following
the Accident in early November 2007. She downplayed the effect of her headaches
at that time, stating that she probably “forgot to mention it because the
headaches come and go”.

[125]     Ms. Neyman
provided different accounts of her problem with sleep due to her injuries,
leaving me to doubt its severity from 2010 onward. Her evidence at trial, which
was consistent with what she told Dr. van Rijn, was that her sleep was
generally good and occasionally interrupted due to pain. On the other hand, she
led Drs. Caillier and Parhar to believe that her sleep was disturbed to a much
greater extent from pain. For example, she reported to Dr. Caillier that
her sleep “was not great”.

[126]    
Ms. Neyman’s evidence that she continues to suffer from a driving phobia,
albeit one that has improved, is also questionable. Before a Facebook posting
that she made on January 9, 2009 was put to her, she gave the impression in her
evidence that she generally suffered from anxiety after the Accident, but that
it improved with time. In her Facebook posting, she wrote about driving her
mother’s manual transmission BMW late at night and at high speed. The entry reads:

Angela Neyman is finally
remembering how awesome it is to drive 120 clicks on a clear road in her car
(Ang ♥’s Speedy G).

[127]     I found that
Ms. Neyman’s responses to questions during cross-examination about that
entry reflected poorly on her credibility and indicated a mindset that
continues to be heavily focused on the Accident as the cause of every problem
or difficulty she has faced since. Once the Facebook entry was put to her, Ms. Neyman
denied suffering any phobia to driving that involved driving very fast, late at
night, and in the dark with a sore knee. I also found Ms. Neyman’s
attitude towards defence counsel during the exchange to have been
inappropriately condescending. I also found Ms. Neyman’s evidence to be at
odds with her previous testimony that in 2011, two years after the Facebook
posting, she was forced to purchase a vehicle with an automatic transmission
because she found driving a car with a clutch aggravated her hip. That evidence
is also inconsistent with her similar advice to Dr. van Rijn in 2010 that she
found it difficult to drive a standard vehicle, “as using the clutch aggravates
her back and hip pain.”

[128]     Many of
the answers she gave in cross-examination about a number of her Facebook
postings reflected a mindset to minimize physical and travel-related problems
not related to the Accident, and to discount as overstated those Facebook
postings that suggested she was, following the Accident, pursuing an
over-burdensome schedule by working mostly full-time hours while attending
school on a full-time basis.

[129]     I am,
respectfully, unable to accept the submission made by her counsel that a number
of Ms. Neyman’s postings on her Facebook that might reflect poorly on her
credibility should be characterized as youthful boasting to her peers. Her
comments on Facebook were made of her own volition. In my opinion, having
observed Ms. Neyman in the witness box over the course of several days, I
am satisfied that her Facebook comments accurately reflect her mindset when each
posting was made.

[130]     In all, I
found Ms. Neyman to be an unreliable historian in many respects. She is unduly
focused on the Accident as the cause of all of her pain and difficulties with
school and work. Accordingly, I find it difficult to place meaningful weight on
much of her evidence concerning the nature and extent of her pain and suffering
caused by the Accident and what happened to her on impact.

Limited Corroboration from
Lay Witnesses

[131]     Although corroborating
testimony about some of Ms. Neyman’s functional impairments and their adverse
effect on her lifestyle was provided by her mother, brother, friends, and
boyfriend, except for her brother and mother, none of those witnesses knew Ms. Neyman
before the Accident and were unable to remark on her pre-Accident function.

[132]     In
addition, Ms. Neyman’s brother has limited knowledge of Ms. Neyman’s
immediate pre-Accident function because, until recently, he had lived in
Toronto for a number of years.

[133]     Of
significance, though, is the evidence of Ms. Neyman’s mother. She
described mood changes in her daughter, from a happy, outgoing, social person
pre-Accident to a highly sensitive, impatient, and truculent individual post-Accident.
I am satisfied that the changes in personality observed by Ms. Neyman’s
mother are symptoms of the aggravation of her daughter’s catastrophization
resulting from the substantial aggravation of her GAD caused by the Accident.

Injuries Caused by the
Accident

[134]     In this
section, I set out my findings concerning the injuries caused by the Accident.
Those injuries are the result of a very modest impact caused by a rear-end collision.

Physical
Injuries, Symptoms, and Functional Limitations Caused by the Accident

[135]     Ms. Neyman
suffered soft tissue injuries to her neck, upper back, low back, and left hip from
the Accident. In turn, she has also suffered from headaches caused by muscle
tension from those injuries. The low back and left hip injuries are new and do
not pre-date the Accident. The Accident also caused an aggravation of her
pre-existing neck and upper back problems and headaches. Further, her
pre-existing GAD was substantially aggravated by the Accident, which in turn
has enhanced her symptoms and has prolonged her recovery well beyond the normal
period of time for soft tissue injuries of this nature.

[136]     Otherwise,
Ms. Neyman’s current symptoms are not supported by physically discernible and
reliable objective evidence. Ms. Neyman’s subjective complaints obtained
from palpation are not, standing alone, a reliable measure of whether injury
was caused by the Accident. Palpation failed to produce any objective indicators
of injury. Drs. van Rijn and Caillier found Ms. Neyman’s range of motion to
fall within normal limits based upon their visual examination. No range of
motion tests were conducted with a goniometer. The results of Dr. Parhar’s
range of motion tests are at odds with the other doctors. Dr. Parhar is
the only medical doctor to find restriction. His findings were based on visual
examinations that began some three months after Dr. Cailler’s tests
produced negative results. I accept Mr. Kyi’s evidence that his test
protocols are a more accurate and reliable assessment of function and
disability for Ms. Neyman because in this case his test results do not
depend so heavily on her subjective complaints. Yet Mr. Kyi’s tests do not
establish that any or all of Ms. Neyman’s functional impairments were
caused by the Accident. Physical exertion, fatigue, temperatures, and her
overall deconditioning may also impair range of motion and function even where
no injury exists.

[137]     Ms. Neyman
suffers from ongoing pain and functional restrictions from her injuries. Ms. Neyman’s
low back and left hip symptoms are her primary complaint. She currently suffers
functional impairment from her low back and left hip injury, which causes pain,
difficulty walking, standing, and sitting for prolonged periods, and a
noticeable limp that appears towards the end of the day. It is this injury that
poses a problem for her ongoing ability to earn income on a full-time basis as
an interior designer if she does not obtain treatment that includes an
appropriate physical conditioning regime and treatment for her GAD with a
psychologist.

[138]     According
to Dr. Caillier, Ms. Neyman is capable of working as an interior designer, “as
well as working within the computer-based system that she currently is using.”
I am satisfied from Dr. Caillier’s evidence that once Ms. Neyman’s left low
back symptoms (which are her “main limiting physical factor”) are resolved
through rehabilitation, she should be able to work full time as an interior
designer subject to any unanticipated exacerbations.

[139]     Ms. Neyman’s
pre-existing neck and upper back symptoms and headaches increased in intensity
and frequency following the Accident. Although they are now located in the
front of her head, all of her headaches are caused by muscle tension. All of
these symptoms have improved significantly since the Accident, most notably
within the first year. Ms. Neyman’s current functional limitations to her
neck and upper back and her headaches are currently minor, and are due only in
part to the Accident. Those symptoms should not prevent her from working in her
chosen occupation as an interior designer.

[140]     In terms
of her current lifestyle, Ms. Neyman’s functional impairments do not
prevent her from cycling, taking long walks for recreation, participating
(albeit not to the fullest extent) in exercise boot camps, travelling, shopping
for leisure for long periods at shopping malls, and attending movies and
concerts.

[141]     Taking all
of the reliable evidence into account, I am satisfied that Ms. Neyman
suffered pre-Accident neck, upper back, and shoulder symptoms that caused pain
and disability to such a degree that massage therapy was required. In October
2007, shortly before the Accident occurred, those symptoms, including muscle
tension and spasms, were triggered once more by drafting for school
assignments.

[142]     As well,
prior to the Accident, Ms. Neyman also suffered from headaches caused by
muscle tension, for which she sought relief from massage therapy.

[143]     Ms. Neyman’s
pre-Accident symptoms had been troubling her for at least six months prior to
her first consultation with Mr. Wendosky, the massage therapist at the Cook
Road Clinic.

[144]     I am also
satisfied that, absent the Accident, Ms. Neyman would have continued to
suffer neck and back pain as well as muscle tension headaches, which would all
require treatment from time to time. Those symptoms would have been triggered
by her manual drafting assignments and, upon graduation, manual drafting work
in the design field. I accept Dr. Caillier’s evidence that when a person
is drafting, particularly over a long period throughout the day, they can
become so immersed in the drafting process that they fail to realize the
compromising postures in which they have placed their neck and upper back.

Substantial
Aggravation of GAD

[145]     The Accident
also caused a substantial aggravation of Ms. Neyman’s pre-existing GAD, which
continues to cause her to focus, disproportionately so, on the injuries she
suffered in the Accident. Her propensity to worry about her injuries from the Accident
has been triggered by that aggravation, which in turn has led to increased pain
and discomfort that, absent the GAD, should have resolved long ago.

[146]     I accept
that Ms. Neyman is highly motivated to pursue recovery through exercise.
Unfortunately, she has failed to pursue treatment for her GAD even in the face
of Dr. Koch’s prognosis that her emotional and physical recovery is
guardedly optimistic if she follows his advice for treatment.

[147]     Ms. Neyman’s
explanation that she had to divert her financial resources to school and her
contention that attending treatment with a psychologist would significantly
encroach upon the time that she requires for school (including school
assignments) lacks merit. Ms. Neyman has chosen instead to work
substantial if not full time hours and complete her diploma program as quickly
as possible. She has also chosen to spend her funds to take vacations to
Toronto and Israel and to travel to Seattle on weekends to attend baseball
games. She also spends money on concerts in Vancouver. She has not made any
effort to set aside time for 15 one-hour sessions with a psychologist, even
though Dr. Koch made this recommendation in his report issued on November
29, 2010. I am satisfied that Ms. Neyman’s resistance to pursue treatment,
which is a function of her pre-Accident personality, has prolonged the pain
symptoms that she experiences.

[148]     I do not
accept the submission that Ms. Neyman’s current difficulties with her GAD
will cause her to suffer from low work productivity. According to Dr. Koch,
some, but not all, people who suffer from GAD “suffer marked work or social
impairment.” She is highly motivated to succeed in her chosen career as an
interior designer, and I do not consider that she will be impaired in achieving
her goal.

Driving
Phobia

[149]     I reject Ms. Neyman’s
claim that she currently suffers from a driving phobia. It is based solely on
her evidence at trial, which I found not to be credible. The most that can be
said is that as a result of the aggravation of her GAD caused by the Accident,
she was worried about driving in traffic for a brief time following the Accident.
I find that her anxiety resolved by early January 2009 and was never disabling.

Concluding
Remarks

[150]     I am,
respectfully, unable to accept the medical opinions that all of Ms. Neyman’s
symptoms were caused by the Accident and are now permanent because they rely so
heavily on Ms. Neyman’s subjective complaints and on the veracity of her inaccurate
and misleading pre-Accident medical histories. Further, opinions expressing a
negative prognosis about her recovery and her inability to work full time hours
overlook the beneficial effects that will be achieved for Ms. Neyman from
the treatment plans recommended by Drs. Koch and Caillier. I am satisfied that
if undertaken, those plans offer Ms. Neyman the opportunity to have her
GAD put into remission, to significantly increase her function and mobility, to
alleviate her pain and discomfort to her pre-Accident state, to work as an
interior designer on a full-time basis, and to engage in her pre-Accident level
of social and physical activities. Unfortunately, Ms. Neyman will always be at
risk for exacerbation of the physical injuries she sustained in the Accident,
which could temporarily disrupt her ability to earn income.

Assessment of Damages

Non-pecuniary
Damages

[151]     In Naidu
v. Mann, 2007 BCSC 1313, Russell J. reiterated the factors to be considered
in assessing non-pecuniary damages. Citing Stapley v. Hejslet, 2006 BCCA
34 at para. 46, she provided the following list: (a) age of the plaintiff;
(b) nature of the injury; (c) severity and duration of pain; (d) disability;
(e) emotional suffering; (f) loss or impairment of life; (g) impairment of
family, marital, and social relationships; (h) impairment of physical and mental
abilities; (i) loss of lifestyle; and (k) the plaintiff’s stoicism.

[152]     I am
mindful of the cases that hold that care must be taken in assessing damages for
soft tissue injuries when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods of time
extending beyond the normal or usual time for recovery: Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.); Sharma v. Didiuk, 2010 BCSC 280 at para. 72.

[153]     I found a
number of the cases cited to me by counsel for both parties to be helpful with
my assessment of the appropriate range for non-pecuniary damages in this case.

[154]     The awards
in Sharma and Hutchinson v. Cozzi, 2009 BCSC 243 are at the lower
end of the range. The facts and reasoning in those cases are well-described in
the brief submitted by defence counsel, from which I have taken the liberty of
summarizing in the next two paragraphs.

[155]     Sharma
was a minimal impact case where the defendant estimated speed on impact to be
between five and ten miles per hour. The cost of repairs was minor. The
plaintiff was on her way to school in morning rush hour at the time. No police
or ambulance attended the accident scene. The plaintiff found herself exhausted
and with tight muscles in her neck, both shoulders, and mid to low back by the
end of the day. By the evening, she had more discomfort than pain. The
plaintiff did not consult with her doctor until five days post-accident because
she thought the pain would disappear. The plaintiff developed pain in her neck
and shoulders over the next one to three weeks; it persisted while she attended
school over the next 10 months. Following school, she worked at a hair salon
for 25 hours per week, which she said was all she could manage. She was
eventually laid off from work because she was unable to carry out her work
properly, which she also blamed on the accident. The plaintiff was referred to
physiotherapy and massage therapy in 2005. She attended a second course of
physiotherapy in 2006 and 2007 after she had a child. The plaintiff returned to
work on a full-time basis until she had her second child. Expert evidence
established that the plaintiff suffered from chronic mechanical neck and lower
back pain and that recovery was unlikely. Before the accident, the plaintiff
enjoyed biking, swimming, and taking long walks and drives, which she had not participated
in since. She also had great difficulty performing household chores such as
cooking, cleaning, yard work, and home renovations. The award was $30,000.

[156]     In Hutchinson,
the plaintiff, a young man in his 20s with a checkered work history, sustained
moderate soft tissue injuries to his cervical, thoracic, and lumbar spine in an
accident that occurred on June 5, 2005. The judge found the plaintiff’s account
of his injuries to be credible. The discomfort and pain from those injuries were
“significant” for approximately one year; after that, the pain became
intermittent, although chronic. His injuries impaired his ability to work well
into 2007 and limited his vocational options as a gas fitter to light forms of
work for an indefinite period. He was awarded $40,000.

[157]     Kardum
v. Asadi-Moghadam, 2011 BCSC 1566 involved a 37-year-old architect who
suffered soft tissue injuries to his neck, shoulders, and back as well as
headaches from two accidents (June 2007 and October 2009). He lived an active
lifestyle prior to the accidents, engaging in exercise on a regular basis. As a
result of his injuries, he suffered from ongoing problems: constant headaches;
aggravation of pain caused by prolonged sitting, standing, and particular types
of exercises; and sleep and mood disturbance. The court found his prognosis to
be guarded, and although he may improve over the next year or two, the
plaintiff was unlikely to become symptom-free. Findings of chronic pain and
nerve impingement due to carpal tunnel syndrome were also made. He was awarded
$70,000.

[158]     In Ortega
v. Pena, 2012 BCSC 1884, a 50-year-old plaintiff who worked at a dry
cleaning facility suffered from chronic pain in her mid to low back region that
arose from soft tissue injuries. She also suffered a chronic mechanical low
back injury and an aggravation to a pre-existing lumbar spinal injury. Those injuries
impaired her ability to work and her lifestyle, such as her ability to dance
and take long walks. The prognosis was guarded. She was expected to continue to
suffer pain on an ongoing basis; pain management was required. The award was $80,000.

[159]     A 49-year-old
marathon runner was awarded $85,000 in Clark v. Kouba, 2012 BCSC 1607
for chronic pain resulting from soft tissue injuries to her neck and upper
back. She also suffered from persistent myofascial tension headaches. In
addition to running, the plaintiff was very sports oriented pre-accident,
participating in other activities such as kayaking. Because the plaintiff was
exceptionally committed to rehabilitation, recovery, and improving her health,
she was able to participate in marathon running post-accident.

[160]     In the
case at bar, Ms. Neyman continues to be functionally impaired by her low
back and left hip injuries, even though she has made a very good recovery from
her neck and upper back injury and from her headaches. Sitting, standing, and
walking for prolonged periods causes discomfort and often pain, and causes her to
limp by the end of the day. Unfortunately, it is the substantial aggravation of
her GAD that has compounded her subjective pain experiences, prolonged her disability,
and impaired her recovery.

[161]     Ms. Neyman’s
mood and interest in participating in certain social activities continue to be
adversely affected due to the combined effect of her low back and left hip pain
and the ongoing anxiety resulting from her aggravated GAD.

[162]     Mr. Wouterse
must take Ms. Neyman as she was at the time of the Accident and cannot
avoid the consequences of her inherent vulnerability to injury. Mr. Wouterse
quite properly concedes that Ms. Neyman was likely vulnerable to injury
due to her pre-existing GAD. I have found that the substantial aggravation of
her GAD is a significant reason why Ms. Neyman’s complaints of pain and
recovery have exceeded the expected time period of recovery for the majority of
adults. Accordingly, Mr. Wouterse must compensate Ms. Neyman for her
injuries caused by the Accident even though they are greater in intensity or
duration than those that would be suffered by the majority of the adult
population.

[163]     It is the
aggravation of Ms. Neyman’s GAD that distinguishes this case from the
cases cited by counsel for the defendant where the awards were at the lower end
(i.e., $30,000 to $40,000). Although I do not have the benefit of a diagnosis
or prognosis from the medical experts that takes into account Ms. Neyman’s
pre-Accident history, I am satisfied that the opinions expressed by Drs. Koch
and Caillier provide a reliable, medically sound, and optimistic prognosis for Ms. Neyman
so long as she pursues and follows their recommended treatment regime that
couples treatment of her GAD with a focused rehabilitation/exercise program. In
my opinion, an appropriate award for non-pecuniary damages in this case is $60,000.

Special
Damages

[164]     Ms. Neyman
spent $1,290 on physiotherapy treatments for which she should be compensated. Mr. Wouterse
does not dispute this claim.

[165]     Nor does
he dispute her claim for swimming lessons at the Minoru Aquatic Centre for
$123.37, or her claim for treatment at the Burnaby Square Orthopaedic &
Sports Centre for $815.98. He accepts those three claims as proven in the total
amount of $2,229.35.

[166]     Ms. Neyman
also seeks reimbursement of the cost of Survivor Boot Camp at $698.18, and the
cost charged by the Jewish Community Centre for low-impact tap dance lessons at
$156.80.

[167]     I do not
accept that these two amounts are recoverable. Ms. Neyman has not pursued
the rehabilitation program recommended by Drs. Caillier and Koch. Her evidence that
she lacked funds to pay for treatments with Dr. Koch is troubling in light
of her willingness to pay for programs that have not been recommended by her
doctors. Her claim for these amounts is not reasonable.

[168]     Therefore,
the total award for special damages is $ 2,229.35.

Cost of
Future Care

[169]     In
assessing costs of future care, courts must rely on “evidence as to what care
is likely to be in a person’s best interest”. The measure of such care is
“objective, based on the evidence”: Shapiro v. Dailey, 2012 BCCA 128 at para. 51;
Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at paras. 21-22.

[170]     There are some
cases where, on being satisfied that some item was necessary for the future
care of the plaintiff, the court was willing to “ballpark” the figure and “do
the best it can” in the absence of direct evidence: Chaban v. Chaban, 2009
BCSC 87 at paras. 65-73; Loewen v. Bernardi (1994), 93 B.C.L.R. (2d)
242.

[171]     Fortunately,
there is evidence concerning the cost of each proposed item of future care. In
some instances, I have direct expert evidence on which I can rely; in others, where
opinions were expressed without the benefit of Ms. Neyman’s accurate pre-Accident
history, I must determine from the evidence as a whole whether an item is
likely to be in Ms. Neyman’s best interests, and if it is, an appropriate
frequency. In assessing each cost of future care item, I have considered what
awards are necessary as a result of the injuries that were actually caused by
the Accident. Furthermore, I have relied on the treatment recommendations and
prognoses of Drs. Caillier and Koch in determining the appropriate awards to be
made.

(a)      Psychological
Treatment for GAD

[172]     Ms. Neyman
seeks an award of a minimum of $4,250 for 25 treatment sessions at $170 each,
based upon Dr. Koch’s recommendation. Of that amount, he recommended at
least 15 sessions to treat her GAD and 10 for her driving phobia.

[173]    
According to Dr. Koch, individuals suffering from GAD, such as
Ms. Neyman, could take longer to finish university or college, have a
poorer academic performance in relation to their level of intelligence, miss
more assignments because of illness or “illness behaviour”, complain more about
pain than others, and are more likely to miss work due to minor pain symptoms.
It is for that reason that she needs to complete the treatment program without
further delay.

[174]     I found
that although Ms. Neyman’s GAD was substantially aggravated by the Accident,
she does not currently suffer from a driving phobia. As a result, she is only
entitled to an award for the cost to treat her GAD.

[175]     I agree
with the submission made on behalf of Ms. Neyman that treatment may be
difficult or prolonged due to her resistance to it. Dr. Koch explained
that her resistance is part of her pre-Accident personality (or as he puts it,
it is idiopathic). I am satisfied that it will take much longer than a year for
Ms. Neyman to complete treatment. There is a point, however, where Mr. Wouterse
should not have to pay for Ms. Neyman’s failure to accept appropriate
medical advice that would ameliorate most, if not all, of her symptoms. Successful
treatment of Ms. Neyman’s GAD will substantially enhance her quality of
life, alleviate her symptoms, and reduce the risk of impairment of Ms. Neyman’s
ability to earn income in future years. It is reasonable to expect Ms. Neyman
to complete treatment within three years. In view of the substantial
aggravation of her GAD that was caused by the Accident and the difficulties
posed by her pre-Accident disposition, an award greater than the recommended
minimum should be made. In addition, and given the importance of successful
treatment of Ms. Neyman’s GAD to resolve her soft tissue injuries and to
maximize her future vocational opportunities, the award should err on the
higher side. l would increase the number of treatment sessions available to Ms. Neyman
to 30. The award is $5,100.

(b)      Rehabilitation
Program and Exercise Regime

[176]     I hold the
same view towards the costs of an appropriate rehabilitation and exercise
regime. A sufficient award should be made that affords Ms. Neyman the
opportunity to make a complete recovery that will, in turn, enhance her quality
of life and reduce the risk of impairment to her future income earning
capacity.

[177]     Support
for a focused rehabilitation program and exercise regime comes from Drs. Koch
and Caillier.

[178]     Dr. Koch
recommended a multi-disciplinary pain clinic that included a program to improve
Ms. Neyman’s core fitness.

[179]     Dr. Caillier
recommended that Ms. Neyman exercise for an hour at least three to four
times per week. Dr. Caillier recommended that Ms. Neyman participate
in an active rehabilitation program of at least 20 to 24 one-hour sessions directed
by a kinesiologist in a “gym-based environment” to improve the strength,
endurance, and flexibility of her neck, upper back, low back, core, and pelvis
region (particularly her hip abductors).

[180]     Dr. Caillier
also recommended that Ms. Neyman participate in a regular independent
exercise program in a gym at least three to four times per week for one hour
each time. That exercise program is essential to “facilitate long term
management of her pain”. According to Dr. Caillier, Ms. Neyman is
“capable of participating in a regular exercise program and should do so”. Ms. Neyman
will have “to work very diligently” to improve the strength of her hip
abductors through exercise. The reason is that “weakness of the left hip
abductors is likely resulting in increased reliance on the piriformis muscle;
thus, the tenderness and tension in this muscle is resulting in precipitation
of leg pains.” Dr. Caillier also provided her prognosis that with
“improved management of her symptoms” through active rehabilitation and
exercise, Ms. Neyman’s “limitations and restrictions will likely lessen.”

[181]     Dr. Parhar
also recommended that Ms. Neyman participate in a personal fitness program
to improve strength, range of motion, and flexibility in her cervical spine,
lumbar spine, and left hip.

[182]      Ms. Neyman
is currently overweight, at 220 pounds, which is approximately 40 pounds more
than she weighed pre-Accident. I accept the opinions of Drs. Koch and Caillier
that she requires a focused rehabilitation and exercise regime to increase her
flexibility and function, improve muscle and core strengthening, and reduce her
weight (which is also aggravating her low back and hip symptoms). Ms. Neyman’s
participation in boot camps on an ad hoc basis has offered her limited
assistance because instructors have made significant accommodations that
allowed her to opt out of certain exercise regimes. Ms. Neyman’s
participation in exercise programs and sporting activities post-Accident has
been sporadic. She will benefit from sessions with a kinesiologist or similarly
qualified physical therapist to design a focused rehabilitation and exercise
regime that will ultimately allow Ms. Neyman to overcome what I have found
to be her preoccupation with pain and discomfort.

[183]     The claim
advanced for the annual cost of a gym membership is $470 and $806.40 for a
kinesiologist and personal trainer. The total annual cost claimed is $1,276.40.

[184]     I do not
accept Ms. Neyman’s claim that she should receive these costs for many years.
It is reasonable to expect, however, that Ms. Neyman will require
assistance with her exercise regime beyond the completion of her treatments
with Dr. Koch. As her attitude and approach become less anxious, her
mobility and flexibility should improve. Dr. Caillier is also optimistic
that Ms. Neyman’s flexibility, function, and pain should improve with
dedicated participation in the rehabilitation and exercise programs.

[185]     Although Dr. Caillier
recommended “life-long” exercise for Ms. Neyman, that does not support Ms. Neyman’s
claim for an award that contemplates annual costs for a kinesiologist, gym
membership, and personal trainer for many years. Ms. Neyman was already
suffering from neck and upper back pain and headaches associated with her drafting
posture. I am satisfied that, if asked, Dr. Caillier would have
recommended that Ms. Neyman participate in regular and focused exercise at
a gym even if the Accident had not occurred, based on her pre-Accident symptoms.

[186]     I would
allow an additional two years beyond the completion of Dr. Koch’s
treatments, or five years in total. The total award under this heading is $6,382.

(c)      Occupational
Therapist

[187]     Dr. Caillier
recommended a work station review be undertaken by an occupational therapist to
“make adjustments as required” to ensure that “there is not undue stress placed
upon the musculature of [Ms. Neyman’s] neck, upper back, and shoulder
regions”. According to Dr. Caillier, that assistance should assist in the management
of Ms. Neyman’s headaches, in both frequency and intensity.

[188]     An award
is justified because of my determination that Ms. Neyman’s pre-existing
neck and upper back difficulties were aggravated by the Accident and prolonged
by the substantial aggravation of her GAD, which was also caused by the Accident.

[189]     Ms. Neyman
claims for the cost of a therapist at $120 per year for many years. In my
opinion, an appropriate award is for two annual sessions: one now, and the
other to be performed by way of a review five years from now after she
completes her psychological treatments and focused exercise regime. The award
is $240.

(d)      Equipment

[190]     Ms. Neyman
seeks an award for a high back Obusforme support at $22.39; orthopedic pillow
at $35; and an angled document/equipment holder to assist her at work at
$16.61. Support for these items is contained in the expert evidence. They are
to assist with her work and sleeping postures in order to relieve pain and discomfort.
There is, however, no basis to support Ms. Neyman’s claim for an award for
these items on an annual basis for years to come. A one-time payment for these
amounts should provide the necessary support for the next five years while she
receives treatment for her GAD and participates in the exercise regime.
Accordingly, the total award in this category is $74.

(e)      Physiotherapy
and Massage Therapy

[191]     Ms. Neyman
also seeks a lump sum award for massage therapy, physiotherapy, and acupuncture
at $7,500.

[192]     The expert
medical evidence is inconsistent in respect of this claim. Dr. van Rijn
did not support ongoing mobilization, but he did not rule it out entirely
either. He acknowledged that although mobilization of Ms. Neyman’s spine
and pelvis provides temporary relief, “it is unlikely that such ongoing
treatment will make that much difference to her outcome”.

[193]     Dr. Caillier
did not include it in her recommendations, despite being told by Ms. Neyman
that physiotherapy and massage therapy offered pain relief.

[194]     Support
for this award comes from Dr. Parhar, who opined that Ms. Neyman will
“require more passive modalities of treatment, such as massage therapy,
physiotherapy, and acupuncture to relieve her symptoms” when she suffers from
“particularly severe exacerbations”. He acknowledged that “while further
treatment in the form of physiotherapy and massage therapy, and further
medications may offer temporary pain relief, they are unlikely to resolve” Ms. Neyman’s
physical condition.

[195]     Ms. Neyman
has established on a balance of probabilities that she is now at risk of
exacerbation of her physical injuries as a result of the Accident. Massage
therapy and physical therapy will provide pain relief if she suffers an
exacerbation. If Ms. Neyman participates in the rehabilitation and
exercise programs for which I have made awards, then her condition should
improve substantially. Massage therapy or physiotherapy might be required in
the early stages of Ms. Neyman’s participation in those programs if she
strains herself. But the risk of exacerbation should decrease as she completes
the rehabilitation program.

[196]     This is a
case where a ballpark estimate must be made based on all of the evidence.
Although I have no specific evidence directed towards the future costs of
physiotherapy and massage therapy treatments, there is evidence of some of
those costs for Ms. Neyman’s special damages claim. In the circumstances,
I am of the view that a fairly nominal award should be made to allow Ms. Neyman
to obtain pain relief in the early stages of the rehabilitation and exercise
programs and for the risk of either a return or increase of symptoms should an
exacerbation occur. An appropriate award is $2,500.

(f)       Medication

[197]     Ms. Neyman
seeks $2,500 for anti-inflammatory medication and other analgesics.

[198]     Some
support for the claim is found in Dr. Parhar’s opinion. He expects Ms. Neyman
will require intermittent use of analgesics, such as ibuprofen and
acetaminophen, and more frequent use if she suffers an “acute exacerbation” of
pain.

[199]     In my
opinion, the amount claimed by Ms. Neyman is excessive because it is out
of line with her evidence that she takes an analgesic once a week or so when
the pain is “very bad”. It ignores the effect of her pre-Accident neck, upper
back, and headache symptoms. An appropriate award is one that recognizes that
her need for analgesics should decrease dramatically over the next five years
as she undertakes the active rehabilitation and exercise programs. A nominal
amount of $100 is more than sufficient in the circumstances.

(g)      Homemaking
Expense

[200]     Ms. Neyman
seeks an award of $5,000 for homemaking assistance. The expert medical evidence
is not consistent.

[201]     Dr. van
Rijn’s evidence supports Ms. Neyman’s claim for homemaking assistance,
albeit for “heavier chores” if she were “responsible for a larger home”.
According to Dr. van Rijn, although Ms. Neyman is able to manage
“basic homemaking chores”, he opined that for a larger home, she would likely
find it difficult to manage heavier cleaning activities (such as vacuuming,
washing floors, and cleaning the bathroom) if done on a sustained basis.

[202]     Dr. Parhar’s
opinion is aligned with that of Dr. van Rijn. He “would expect Angela to
have difficulty with heavier household chores, such as vacuuming, doing
laundry, spring cleaning, and yard work”.

[203]     Dr. Caillier
took a different view. She opined that Ms. Neyman should be able to carry
out household activities “with more comfort and ease” as she participates in
the rehabilitation and exercise programs. As a result, her opinion is that Ms. Neyman
“is unlikely to require household assistance or outside seasonal assistance”.
She went on to state that should she suffer a flare-up of symptoms while
engaged in activities around the home, “she needs to pace and prioritize what
needs to be done”.

[204]     In my
opinion, the opinions expressed by Drs. van Rijn and Parhar are inappropriately
pessimistic. Their opinions are predicated on Ms. Neyman’s subjective
account of her symptoms. They fail to take into account the significant
benefits that will accrue to Ms. Neyman from the active rehabilitation and
exercise and GAD treatment programs recommended by Drs. Caillier and Koch. Notwithstanding
that the award I have made for the costs of physiotherapy and massage therapy
in the event of exacerbation should promote swift pain relief from symptoms, I
am satisfied that there will likely be a few occasions, particularly in the
short term as she gets underway with her treatment for GAD and the rehabilitation
program, when Ms. Neyman will likely need some assistance from a housekeeper. I
would award a nominal amount of $500.

(h)      Childcare
Assistance

[205]     Ms. Neyman
seeks $2,500 for child care assistance.

[206]     The only
medical evidence in support of this claim comes from Dr. van Rijn. He
wrote that if and when Ms. Neyman becomes a parent, “the needs for
assistance will increase beyond those of an able-bodied person as a result of
injuries and ongoing symptoms secondary to the accident. In this case, hired help
may be necessary”. There was, however, no evidence concerning her plans to
raise a family. I do not know whether Ms. Neyman plans to start a family
over the next five years while she is pursuing her career as an interior
designer and is engaged in the rehabilitation and exercise program and
treatments for her GAD.

[207]     I am
satisfied that when Ms. Neyman completes those programs, her need for
childcare assistance should be eliminated. In addition, there is no evidence
from which I can conclude that her participation in those programs might be
interrupted in the next five years. In my opinion, her claim for childcare
assistance is speculative and is not warranted on the evidence.

[208]     Accordingly,
I would not make any award under this category.

(i)       Summary

[209]     In
summary, the total award for cost of future care is $14,896, representing: (a) psychological
treatments at $5,100; (b) rehabilitation and exercise regime at $6,382; (c) occupational
therapist at $240; (d) equipment at $74; (e) analgesics at $100; (f) passive
modalities such as massage therapy at $2,500; and (g) homemaking assistance at
$500.

[210]     Given the
immediacy and short duration of nearly all of these expenditures, I do not see
a basis to determine their present value. The actuarial evidence admitted at
trial assumes various discount rates and multipliers for a lump sum figure
applied over time. The present value of those amounts would result in a de
minimis discount for Mr. Wouterse because payment out for these costs will
begin immediately and all of the funds, except possibly a residual amount for
future physiotherapy and massage therapy costs, will be exhausted within five years.

Past Wage
Loss

[211]      Overall, I
am satisfied that Ms. Neyman was delayed in completing the certificate
program as a result of the injuries she sustained in the Accident. I find that
the injuries caused by the Accident compounded her difficulties in meeting her
assignment deadlines and contributed to the delay in completing her certificate
program. I do not agree, however, with the submission made on her behalf that Ms. Neyman
would have completed her certificate program in July 2009 if the Accident had
not occurred. I find that her pre-Accident symptoms would have been aggravated
by the drafting requirements in her courses. In addition, while her intention
was commendable, I agree with the submissions of defence counsel that Ms. Neyman’s
zealous pursuit of a full-time course load while working close to full-time
hours was not sustainable even if the Accident had not occurred, given her pre-Accident
difficulties with drafting.

[212]     I do not
accept Ms. Neyman’s contention that the injuries she suffered in the Accident
account for all of her missed assignments and for those that were handed in
late, for which she received lower or failing marks. Ms. Neyman admitted
that there were times that she turned her assignments in late because she was
caught in traffic en route to school. She also said that she found taking a
full course load with drafting assignments was fatiguing. She said that they depleted
her “creativity”.

[213]     I am
satisfied that had Ms. Neyman pursued a more reasonable course load at
BCIT while she chose to work close to or at full-time hours on a regular basis,
she would likely have taken three years to complete the certificate program if
the Accident had not occurred. This means that she would have completed the
certificate program by July 2010.

[214]     Before the
Accident occurred, Ms. Neyman planned to proceed directly to the diploma
program following her completion of the certificate program. She has not
deviated from that plan. I am satisfied that, absent the Accident, had she
continued to work the same hours she has to date while taking a more suitable
course load, Ms. Neyman would have completed her diploma in interior
design by July 2012. Accordingly, Ms. Neyman has been denied the
opportunity to work in that capacity since July 2012.

[215]     Expert
evidence tendered on behalf of Ms. Neyman, admitted by Mr. Wouterse, shows
that the average income earned in Canada by 25 to 29-year-old female interior
designers holding a diploma from institutions such as BCIT was $32,790 in 2005,
and is currently $40,532. Ms. Neyman’s past income loss claim is
predicated on the average between those two figures, or $36,661. Mr. Wouterse
did not take issue with Ms. Neyman’s proposed approach to use the
mid-point between 2005 and 2013, nor did he offer any alternative evidence or
approach to take. The approach is a sound one to use in this case. It neither
overstates nor understates the appropriate earning potential for Ms. Neyman
following her graduation from the diploma program.

[216]     Ms. Neyman
is, therefore, entitled to recover past wage loss, based on the average amount,
running from the date she would have graduated in July 2012 to the present,
less the income she has earned from Pacific Rim. The evidence at trial shows
that she earned a gross salary of $25,431.86 from the start of her employment
in March 2012 to December 21, 2012. There is no evidence to show her earnings
from Pacific Rim beyond that date. The parties should determine the actual amount
of her income from Pacific Rim to date and from there, calculate the actual
amount of her past wage loss. Failing agreement, counsel should arrange to
return before me to provide further submissions.

[217]     In
addition, Ms. Neyman is entitled to receive lost income from work from the
Bombay Company caused by the Accident.  Mr. Wouterse admits that Ms. Neyman
missed work at the Bombay Company immediately following the Accident and that she
is also entitled to recover $115.50 as a result.

Loss of
Earning Capacity

[218]     An award
for loss of earning capacity is made when a plaintiff proves that there is “a
real and substantial possibility of a future event leading to an income loss”.
Mere speculation is insufficient: Perren v. Lalari, 2010 BCCA 140 at paras. 30-32.
An ability to earn income is recognized as an asset for which a plaintiff
deserves compensation if the asset is impaired or taken away: Tsalamandris
v. MacDonald, 2011 BCSC 1138 at para. 259 [Tsalamandris BCSC], aff’d
2012 BCCA 239. If the plaintiff seeks to prove that their ability to work at a
certain occupation is impaired, they must show that this occupation was a
realistic alternative: Steward v. Berezan, 2007 BCCA 150.

[219]    
The principles governing the assessment of damages for loss of earning
capacity are set out in Rosvold v. Dunlop, 2001 BCCA 1. They were
summarized in Tsalamandris BCSC at para. 259, 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 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 after the accident had happened, and to consider the present value of
the difference between the amounts earned under these two scenarios. …;

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

[220]    
In Perren, the Court of Appeal described the four factors from Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 as useful considerations for
assessing a claim for loss of future income earning capacity. It said at para. 11:

… In 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, 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 [citation omitted]. 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.

[221]     In some
cases, it is not possible to assess future income loss in a purely mathematical
way because, for example, the plaintiff’s prior work history may be sporadic,
or it may involve a series of low-paying jobs that do not reflect the
plaintiff’s future employment potential had the accident not occurred. In other
cases, past employment may be non-existent. Accordingly, a plaintiff may prove
the loss of future income capacity on either an earnings approach (spoken of in
Steenblok, Perren, and Rosvold) or on a capital asset
approach (spoken of in Brown, Steward, Pallos v. Insurance
Corporation of British Columbia (1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C.
310, and in Perren). Neither approach is mutually exclusive. As
Russell J. pointed out in Naidu at para. 217, “they are simply
different ways of attempting to assess the same head of damages”. In either
case, the plaintiff bears the onus to meet the “substantial possibility” test: Naidu
at para. 219. Thus, the first step in assessing a claim falling under this
head of damages is “to enquire whether there is a substantial possibility of
future income loss before one is to embark on assessing the loss under either
approach”: Chang v. Feng, 2008 BCSC 49 at para. 76, cited with
approval in Perren at paras. 25-26.

[222]     An
estimate for quantum of damages for loss of income earning capacity can begin
with an extrapolation of earnings to find the present value of a claimant’s
projected future earnings. But that is only a starting point. Ultimately, the
award must be reasonable in the circumstances having regard to all of the
evidence, including actual earnings to date: Naidu at para. 221.

[223]     Ms. Neyman
has proven that she will suffer future income loss until she completes her
diploma program at BCIT. I have found that absent the Accident, she would have
completed that program by July 2012. She is now fully enrolled in the diploma program,
and I am satisfied that she will complete it by July 2014 so long as she does
not pursue her previous path of full-time hours at work.

[224]     Until
March 2012, when she was hired by Pacific Rim, Ms. Neyman’s work history
has involved lower paying jobs that do not fall within her chosen field. For
that reason, it is appropriate to assess her future income loss to July 2014 by
taking into account the average income for interior designers holding a diploma,
less the income she will earn at Pacific Rim. As I pointed out in the section
concerning the past wage loss claim, there is limited evidence regarding Ms.
Neyman’s actual earnings from Pacific Rim.

[225]     I do not
think it is possible, however, to determine her future income loss for this
period purely through a mathematical calculation because she should not be
expected to work her current full-time hours while she attends a full course
load to complete the diploma program by July 2014. In addition, Ms. Neyman’s
ability to maintain a full-time course load and work hours will be impacted because
she will need time away from work to attend treatments with a psychologist and
to participate in the rehabilitation and exercise program. Her loss of income
during this time is likely to increase by a significant amount.

[226]     Moreover, I
find that there is a substantial possibility that Ms. Neyman’s ability to
earn income as an interior designer will be impaired following graduation in
July 2014 because she will not have completed the rehabilitation and exercise
program or her treatments for GAD. Although her ability to work full-time hours
will not be affected by having to take courses after July 2014, it is likely to
be impacted from time to time by residual pain and restriction in function
until she completes her treatment for her GAD in the next three years and the
rehabilitation program in 2018. Plus, she will likely need time away from work
to complete them.

[227]    
I am also satisfied that there is a real and substantial possibility
that Ms. Neyman is at risk, from the Accident, of future income loss if
she suffers an exacerbation of her injuries, even though she will receive
physiotherapy and massage therapy treatments to alleviate her pain and
discomfort. That risk must be considered in the assessment of an appropriate
award.

[228]    
Ms. Neyman must be put into the position she would have been in but
for the Accident. Thus, the award must take into account her pre-Accident
symptoms and problems with manual drafting.

[229]    
While I agree with Ms. Neyman’s counsel that her poor marks in her
academic transcript may pose a problem for future job prospects, that is a
problem that results primarily from her decision to take a full-time course
load while working close to full time employment. I accept that the injuries
she suffered in the Accident contributed to some of her lower marks. I have
taken that into account in assessing an appropriate award for this head of
damages.

[230]    
For all of these reasons, I find that Ms. Neyman’s capacity to earn
income in the future has been impaired as a result of the Accident even though
she presently earns more than she did prior to the Accident. I agree with the
alternative submission made on behalf of Ms. Neyman that a lump sum award based
upon her anticipated earnings as an interior designer should be made. This approach
has been taken in other cases such as Brown; Pallos; Sharma; and
Miller v. Lawlor, 2012 BCSC 387. It is not appropriate to attempt to assess
the award on a pure mathematical calculation given the circumstances of this
case.

[231]    
I do not, however, agree with the submission made on behalf of Ms.
Neyman that a reasonable award should be based upon three years of lost income calculated
at $54,317 per year, which is the average full-time full-year earnings for
female interior designers working in British Columbia in 2006 reflected in 2013
dollars. An award in that amount fails to take into account negative
contingencies, such as Ms. Neyman’s pre-Accident medical history, and the
anticipated outcome of her treatment for GAD and her participation in the rehabilitation
program. Although most of her loss of income will occur in the next five years,
there is a substantial possibility that Ms. Neyman will suffer income loss from
time to time because she is susceptible to exacerbation of the low back and hip
injuries caused by the Accident. In my opinion, a fair and appropriate award is
the equivalent of one year of the average income for 31-year-old interior designers
holding a diploma in 2013, which Mr. Wouterse does not dispute is $52,030, plus
a slight upward adjustment for inflation and increased salary potential. The
award is $55,000.

Summary

[232]     Ms. Neyman
is awarded the following for damages arising from the Accident:

(a)      $60,000 for non-pecuniary
damages;

(b)      $2,229.35 for special
damages;

(c)      $14,896 for costs of
future care;

(c)      Past
wage loss to be calculated by the parties using Ms. Neyman’s actual gross
income to date, or failing agreement, to be determined following further
submissions;

(d)      $55,000 for loss of future
earning capacity; and

(e)      Court order interest on
appropriate amounts.

[233]    
Unless there is some matter of which I am unaware, Ms. Neyman is
entitled to her costs.

“P. Walker J.”

__________________________________

The Honourable Mr. Justice Paul
Walker