IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130516

Docket: M80254

Registry:
Kelowna

Between:

Valerie
Thorne

Plaintiff

And

Isabelle
Lind

Defendant

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment

Introduction

[1]            
Valerie Thorne was injured when Isabelle Lind drove into the car Ms. Thorne
was driving, in Kelowna, B.C. on September 6, 2006.

[2]            
The defendant admits liability for the accident.  It is not contested
that Ms. Thorne suffered some injuries to her neck, right shoulder, and
upper back area.

[3]            
There is one causation issue.  The defendant disputes that the accident
caused Ms. Thorne to suffer injuries to her lower back, right hip, and
right leg. The defendant says that while there is evidence that Ms. Thorne
had ongoing medical problems in those areas in the last few years, the onset of
those problems was too long after the accident occurred to have been caused by
the accident.

[4]            
All of the injuries caused pain, and Ms. Thorne suffered emotional difficulties
as well.

[5]            
 The assessment of damages for Ms. Thorne’s injuries is also
contested.

[6]            
I will approach the issues in this case in the following order:

·       background
facts

·       the
accident

·       post-accident
treatments and symptoms

·       legal
principles

·       causation

·       diagnosis
and prognosis

·       special
expenses

·       loss
of earning capacity

·       future
care expenses

·       housekeeping
expenses

·      
non-pecuniary damages.

[7]            
First I will comment briefly on credibility.

[8]            
I found that Ms. Thorne was careful in her testimony.  She
displayed appropriate but controlled emotion at times regarding matters one
would expect to cause emotion, such as when describing her pain or the strain
on her family relationships.  Ms. Thorne did not appear to exaggerate her
evidence.

[9]            
After the accident Ms. Thorne behaved like someone who wanted to
get back to her pre-accident life and who was willing to work hard to
accomplish this despite her pain, emotional difficulties, and setbacks in her
treatment.  She lost only a half day of work.  She pursued numerous therapies. 
She changed careers to one which she thought she would be better able to handle
the physical requirements of.  Her conduct post-accident was of a person trying
to limit her losses and to get better.  Her conduct was not that of a person
trying to amplify her damage claim.

[10]        
There were evidentiary inconsistencies between Ms. Thorne’s
testimony and some of the information in the medical records.  None of these
inconsistencies led me to conclude that she was not attempting to tell the
truth at trial and when being interviewed by her physicians.  These
inconsistencies can easily be explained by human error, such as a
misunderstanding or a miscommunication between the physician and patient.

[11]        
I also note that none of the people who performed independent medical examinations
on the plaintiff, and none of her medical treatment providers, concluded that Ms. Thorne
was not telling the truth about the symptoms that she was experiencing, even
after testing her.  Some of those who treated her felt that she was, if
anything, stoic (for example, Dr. Wickstrom and Dr. Zettl).

[12]        
I concluded that the plaintiff was a credible and reliable witness.

Background

[13]        
Ms. Thorne was born in 1962 in Prince Rupert, B.C., where she grew
up.

[14]        
After finishing high school in 1980, she entered the work force and did
not pursue higher education.

[15]        
In 1993, she obtained a job as a receptionist in a dental office.  She
continued in that field, eventually also working as a dental assistant.

[16]        
In 1997, she married her husband, Dan Thorne.  He works in police
enforcement and his employment has taken him to different locations in the
province.

[17]        
As of early 2006, the couple and their three children lived in Kamloops,
B.C.  The youngest children were two girls, ages 6 and 7 at the time of the
accident.  Dan’s sister Deana also lived with the family for a period of time.

[18]        
Ms. Thorne was very active in recreational activities with her
children, particularly the girls.  They played at various sports activities
including volleyball, badminton, trampoline, skiing, sledding, tubing, soccer,
bicycling, and swimming.  Ms. Thorne was also active in running, golfing,
and in practising yoga.

[19]        
Ms. Thorne’s pre-accident health was very good.  She had in the
past had occasional migraine headaches but had linked these to diet and so had
successfully avoided them by avoiding certain foods.  She did not recall having
any prior back problems, but acknowledged that she may have had the occasional
ache or pain similar to that which most people have known.

[20]        
In March 2006, Ms. Thorne and her family moved to Kelowna where Dan
Thorne had a new posting with his position.

[21]        
In approximately May 2007, Ms. Thorne was hired by the B.C. Cancer
Agency in Kelowna, working as a dental assistant.  Ms. Thorne worked a
total of 15 hours over two days per week.  She felt interested in her work and
thought about one day becoming a dental hygienist or perhaps working as an
assistant in an orthodontist’s office.  She was taking a course in respect of
the orthodontic assistant work.

The Accident

[22]        
On the day of the accident, Ms. Thorne took her two daughters to
school and then went to a yoga session approximately 1½ hours long.  She then
went out to lunch with her husband and, after lunch, headed towards the school
to pick up her daughters.  She was driving a minivan and wearing a three-point
lap and shoulder seat belt.  The van had a headrest.

[23]        
Ms. Thorne was travelling through an intersection on a green light
when she noticed a car approaching on her left.  She honked her horn and the
car did not stop.  She tried to swerve to the right to avoid it, and then put
her brakes on and braced her arms as she anticipated the impact.

[24]        
The other car drove into her vehicle, hitting it on the front driver’s side
and front door.

[25]        
Ms. Thorne’s recounting of what happened immediately after the
accident suggests that she was somewhat dazed by it.  Her instant thought was
that she had to try to move the vehicle out of the intersection but it would
not start and the front driver’s side wheel was twisted.  Someone approached
her and told her it was okay and she needed to get out of the vehicle.  She
could not open her door and so used the back sliding door to get out of the
vehicle.

[26]        
She recalls instantly getting a headache and being very nervous and
shaking.

[27]        
She also recalls feeling her neck and back start seizing up.  She
testified that her back hurt across the middle, around the shoulder blade area,
up her neck, and then down her spine.  She does not recall one side of her body
hurting more than the other, just that it felt very tight, achy, and “like a
hot pain”.

[28]        
As she described the accident in her testimony, Ms. Thorne was
clearly still upset about it.  Asked how she was feeling emotionally after the
accident, she said she was “pretty shaken up”.

[29]        
After the accident, Ms. Thorne’s husband Dan came from his work to
pick her up and take her home.

Post-Accident Treatments and Symptoms

[30]        
I will now review the evidence of Ms. Thorne’s symptoms and
treatment post-accident.

Dr. David Goldberg

[31]        
A couple of days after the accident, Ms. Thorne went to see Dr. Goldberg,
a general practitioner in Kelowna, who worked out of a walk-in clinic near her
home.  She was not yet a patient of any family physician, having only recently
moved to Kelowna.

[32]        
In describing her symptoms to Dr. Goldberg, Ms. Thorne told
him that her shoulder, back, and neck were quite painful, particularly the
right side of her body.  According to her evidence, she described the pain
around her shoulder cuff, shoulder blade area, up to her neck, and down her
back.  She described having trouble sleeping because of the pain and having a
hard time concentrating.

[33]        
Dr. Goldberg was not called as a witness.

Wesley Polack, RMT

[34]        
Dr. Goldberg immediately referred Ms. Thorne to a registered massage
therapist, Wesley Polack.  She saw him for treatment seven times in September
and three times in October of 2006.

[35]        
Ms. Thorne testified that at her first meeting with Mr. Polack,
she explained what had happened, and that she was having pain across her
shoulders into her neck, and down her back.  She said he went down her whole
back but it was all very sore and there was not a lot that he could do on that
first visit.  She said that in subsequent treatments he spent a lot of time on
her shoulders and neck, and he began to loosen things up.  However, she still
felt a lot of pain.  Ultimately she did not feel that his treatment was helping
her very much overall and so she moved on to other treatment providers after
early October 2006.

[36]        
Mr. Polack testified at trial.  While he could no longer remember Ms. Thorne
specifically, he was able to testify about his treatment based on his clinical
records.  His explanation of his clinical records was helpful as they had
proven illegible to most of the other physicians who testified at trial.

[37]        
Mr. Polack testified that at the first visit that he saw Ms. Thorne,
on September 11, 2006, she reported that her entire back was very sore.  He
used two upwards arrows to indicate the degree of pain.  He explained that the
entire back, noted as “EB” in his records, indicates the entire area from the
gluteus maximus and low back right up to the bone base of the skull, and
lateral wrapping around the thoracic area and ribs.  He noted on her first
visit that the back was very tight and the muscle was under a high degree of
contraction or spasm.  As a result, he was only able to do very light treatment
on her.

[38]        
Mr. Polack explained that as a registered massage therapist, he is
able to feel spasm through his hands as he can feel the vibration of the muscle
itself sometimes and also can sometimes feel the heat from the area.  He can
feel the muscle fibres guarding an entire area that has been damaged.

[39]        
Mr. Polack was taken through his entire clinical records and
confirmed that throughout the time he saw her Ms. Thorne was reporting her
entire back as a problem.  However, the most acute area, which he concentrated
on, was in her upper back.  On September 21, 2006 he noted that her lower back
had increased “tonus”, meaning stiffness or guardedness.  His last treatment of
her was on October 6, 2006 when again he addressed her entire back, but with a
focus on her upper back.  He noted that she was showing slight improvement in
that he was able to apply the massage therapy at more depth.  In the beginning,
his mere touch increased her pain levels.

[40]        
When Mr. Polack first saw Ms. Thorne, he met with her and
asked her questions about her areas of pain.  His intake form includes a
diagram of the human body on which he sketched the areas of pain.  These areas
noted the mid-to-upper back and neck.  He agreed in cross-examination that he
did not illustrate the lower back in the diagram.  However, he did not vary
from his evidence that once he began to touch her, he discovered that her
entire back was an issue, including the lower back.

[41]        
Mr. Polack’s clinical records also note Ms. Thorne’s
complaints of dizziness and headaches.

Joel Kryczka, Physiotherapist

[42]        
In October 2006 Ms. Thorne went back to Dr. Goldberg and
explained she was still having pain.  He referred her to a physiotherapist,
Joel Kryczka, at the Pinnacle Physiotherapy Centre in Kelowna.

[43]        
Ms. Thorne’s first visit to Mr. Kryczka was on October 10,
2006.

[44]        
Ms. Thorne recalls telling Mr. Kryczka about her different areas
of pain, including her neck, across her back, and right shoulder blade.  She
told him it was mostly her right side giving her the pain.  She said she told
him about feeling dizzy and her back being sore and that her right shoulder was
sometimes so sore that she would avoid using it.

[45]        
Mr. Kryczka testified at trial.  At his initial interview of Ms. Thorne
on October 10, 2006 he filled out a pain diagram indicating an area of pain in
the right neck, right shoulder and right upper back areas.  He did not write
down any complaints of pain in the lumbar spine, right hip, right leg, or groin
area.

[46]        
Mr. Kryczka explained that on examination of Ms. Thorne during
that first visit he noted that she was very stiff and very tender on palpation
in the shoulder muscles and very painful with resisted external rotation of the
right shoulder.  He only assessed her upper spine that day but made a note to
do a further assessment and assess her lumbar spine if indicated.  He recorded Ms. Thorne’s
report that she had trouble sleeping and that she had headaches.

[47]        
Mr. Kryczka saw Ms. Thorne also on October 13 and 17, 2006,
and made no record of any complaint in the lumbar spine or right hip areas.  He
did note on October 17, 2006 that she complained of soreness after vacuuming and
washing floors for 1.5 hours.

[48]        
On October 20, 2006, Mr. Kryczka treated Ms. Thorne and
recorded in his clinical records that she had a sore lumbar spine in all ranges
of motion.  He explained in his evidence at trial that she was weak on both
sides of her hips, but weaker on the left side hamstring and left gluteus
muscles than on the right.  Her right anterior hip muscles were tighter than
the left.

[49]        
Mr. Kryczka prescribed exercises for Ms. Thorne, and recorded
when he saw her on October 24, 2006 that her lumbar spine had some improvement.

[50]        
The next visit by Ms. Thorne to Mr. Kryczka was on October 30,
2006.  He noted that she now complained of increased pain in the lumbar spine
area.  He noted that when she bent forward or to the side at the waist, she had
pain.  She was very weak on her right side in trying to do a knee-lift bridge. Mr. Kryczka’s
notes indicate that Ms. Thorne reported that she had been in a prolonged
sitting position in a course, bending forward, and that this left her sore.

[51]        
Mr. Kryczka then saw Ms. Thorne show some progress in early
November, but after that she seemed to deteriorate.  She had trouble doing a
straight leg raise on her own or assisted, on her right side.  Mr. Kryczka
observed that her entire lower right side was extremely weak and was declining,
and he was worried about it.

[52]        
 The defendant’s theory of Ms. Thorne’s injuries is that her reports
of right hip and low back pain to Mr. Kryczka occurred too late in time
after the motor vehicle accident to be related to the accident.

[53]        
In her evidence in direct, Ms. Thorne explained that when she was
seeing her physiotherapist, Mr. Kryczka, she did start to have more pain
in her lower back and her hip.  She “finally talked” to him about it when she
realized it was not going to go away and then they started doing a lot of work
on her lower back and hip.  She said that she was given exercises and tried different
therapies at his direction, but he could not figure out what to do next.

[54]        
Ms. Thorne explained that because her sister has multiple
sclerosis, Mr. Kryczka expressed concern that Ms. Thorne needed to be
checked to make sure that she did not also have MS.  Ms. Thorne said
he was more concerned about this than she was as she had previously been
checked for MS, due to the familial history, and did not have it. 
Nevertheless, she agreed with the recommendation and was referred by Mr. Kryczka
back to Dr. Goldberg to follow up on this possibility in November 2006.

Dr. David Craig, Neurologist

[55]        
Dr. Goldberg referred Ms. Thorne to a neurologist, Dr. Craig.

[56]        
Dr. Craig assessed Ms. Thorne in December 2006.

[57]        
Dr. Craig performed different tests on her using needles.  He
followed up with her in 2007 and referred her to an MRI.

[58]        
Ms. Thorne’s evidence is that Dr. Craig did not think that she
had MS. 

Dr. Willie Cheyne, Sports Physician

[59]        
Ms. Thorne was also referred to a specialist in sports medicine, Dr. Willie
Cheyne who saw her and reported back to Dr. Goldberg in May 2007.  Dr. Cheyne
ordered x-rays and an MRI of her lumbar spine.  This was not explored to any
great extent in the evidence.

Continued Physiotherapy

[60]        
Ms. Thorne testified that throughout 2007 and 2008 she continued to
feel a great deal of neck, right shoulder, right arm, right hip, right leg, and
back pain.

[61]        
Ms. Thorne went back to treatment with Mr. Kryczka in 2007 and
continued seeing him for treatment until her last treatment with him in July 2008.

[62]        
Mr. Kryczka agreed in cross-examination that his first record of Ms. Thorne
complaining of hip pain was on January 22, 2007, when her lumbar spine was sore
and she wondered if that was contributed to by shovelling.  However, as early
as October 30, 2006 he noted problems with her lumbar spine including problems
with weakness on her lower right side, and in November 2006 he noted problems
with right-side lift raises and stiff hip flexors.

Dr. Wendy Wickstrom, Family Physician

[63]        
In May 2008, Ms. Thorne obtained a new family physician, Dr. Wendy
Wickstrom, who testified at trial.

[64]        
Dr. Wickstrom has been in practice for over 20 years.  She has been
in Kelowna practicing general medicine for approximately 12-13 years and sees a
variety of patients, including in-hospital care.

[65]        
Dr. Wickstrom testified that the main problem when she first saw Ms. Thorne
as a patient on May 12, 2008 was her right hip, primarily its weakness and
pain.  Ms. Thorne also complained of neck pain on both sides and although
she was not sure of this, Dr. Wickstrom believes she also complained of
back pain.

[66]        
Dr. Wickstrom agreed in cross-examination that when she saw Ms. Thorne
again on May 20, 2008, she recorded her range of motion in her back as good and
did not note any pathology regarding her lumbar spine.  From May to September
2008, she made no note of Ms. Thorne having a shoulder complaint or a
lumbar spine problem.  Rather, the predominant problem that she noted in her
records was weakness in the right leg.

[67]        
Dr. Wickstrom felt that at one point Ms. Thorne went through a
mild depression and that she was having a lot of difficulty dealing with her
injuries.  Ms. Thorne struck her as someone who pushes through her pain.

[68]        
Ms. Thorne complained of some joint pains not associated with the
accident and was assessed for possible arthritis in September 2008.  These
investigations came back negative.

[69]        
Dr. Wickstrom saw Ms. Thorne on May 2, 2011 after a second
motor vehicle accident on April 28, 2011.  According to Dr. Wickstrom’s
records, Ms. Thorne had some exacerbation of her neck, arm and chest pain,
but the flare up of her symptoms was short-lived.  This was consistent with Ms. Thorne’s
evidence.

Dr. Shawn McCann, Physical Medicine and Rehabilitation

[70]        
Dr. Wickstrom referred Ms. Thorne to a specialist in physical
medicine and rehabilitation, also known as a physiatrist, Dr. Shawn
McCann.

[71]        
Dr. McCann first saw Ms. Thorne in October 2008.  By that
date, Ms. Thorne had undergone a significant amount of physiotherapy with Mr. Kryczka.

[72]        
Ms. Thorne was still having neck and right arm pain when she saw Dr. McCann,
but it had improved over time.  Her main complaint was in her right lower back,
right hip, and right leg area, which she described as having gotten worse over
time.

[73]        
Dr. McCann testified at trial.  He explained that he assessed Ms. Thorne
at her initial visit to him on October 2, 2008, and on several visits
thereafter: May 14, 2009; October 21, 2009; October 20, 2010; December 1, 2010;
November 9, 2011; and October 3, 2012.

[74]        
Dr. McCann performed numerous examinations of Ms. Thorne over this
course of time and consistently noted her experiencing pain and tenderness in
her right lower back, right buttock, right hip, and right thigh.

[75]        
This is consistent with Ms. Thorne’s evidence that she continued to
experience pain in these same areas.

[76]        
Dr. McCann tried and referred Ms. Thorne to various types of
treatment: specific stretches; trigger point injections; intramuscular
stimulations treatment (IMS treatment); and a right L5-S1 medial branch block.

[77]        
Dr. McCann reported that Ms. Thorne only had temporary relief
with the latter procedure.

[78]        
Ms. Thorne’s evidence confirmed that she only had slight and
temporary relief from any of these treatments.

[79]        
Dr. Wickstrom testified that she saw Ms. Thorne on September
15, 2009, approximately one month after Ms. Thorne had the L5-S1 medial branch
nerve injection.  In her opinion, Ms. Thorne did not have significant
improvement from this injection.  Dr. Wickstrom was challenged on this in
cross-examination, and taken to Dr. McCann’s report where he wrote that
the medial branch block gave Ms. Thorne “some temporary relief of her
symptoms”.  Dr. Wickstrom explained that sometimes patients report relief
immediately after the injection but it does not last.  She stood by her own
observations approximately one month after the injection, that the injection
did not appear to have helped.

[80]        
In October 2009, Dr. McCann ordered an MRI with arthrogram of the
right hip to make sure that Ms. Thorne did not have a labral tear.  This
MRI was not performed until September 15, 2010 and it appears that it was not reported
until February 2011.

[81]        
The MRI report noted a “slight irregularity” and that was “suggestive of
a partial incomplete tear of the proximal portion of the ileofemoral
ligament”.  In his evidence, Dr. McCann explained that this report is
written in the manner in which radiologists report findings, but it confirmed for
him that there was an incomplete tear of Ms. Thorne’s proximal portion of
the ileofemoral ligament.  In his opinion, “this is definitely the potential
source of the pain into the right hip and lateral hip area” (at p. 11 of
report dated October 3, 2012).

Additional Treatment

[82]        
At almost the same time as she began treatment with Dr. McCann, Ms. Thorne
also began attending a new physiotherapist, Dawn Mills.  Ms. Thorne felt that
this physiotherapist gave her some relief from ongoing dizziness and neck and
shoulder pain.

[83]        
Ms. Thorne testified that in April 2009 she was referred to another
physiotherapist, Kirsten Vinge.  She saw her for many treatments.

[84]        
Also, Ms. Thorne saw massage therapist Tao Farrell on a couple of
occasions in March 2010.  He referred her to a psychologist, Dr. Lynne
Zettl.

[85]        
In November 2012, Dr. Wickstrom prescribed a pain killer and a drug
to assist Ms. Thorne’s sleep.  Other than that, she felt that Ms. Thorne
was not interested in pain medications and was managing her pain through her
various therapies.

[86]        
From time to time, Ms. Thorne has seen a chiropractor to help her
deal with pain in her neck and hip area.

[87]        
 More recently, Ms. Thorne has been referred by Dr. McCann to Dr. Etheridge
for prolotherapy injections into her right hip.  Ms. Thorne had injections
in October 2012 and January 2013, and testified that she obtained some relief. 
She is expecting further treatments this month.

[88]        
Dr. Wickstrom agreed with reports from Dr. Etheridge, who has
done prolotherapy injections for Ms. Thorne, that the injections have
overall reduced her pain by 30-40%.  The plan is to continue with this
treatment.

Dr. Lynne Zettl, Psychologist

[89]        
Ms. Thorne explained that she found dealing with her physical
limitations and pain since the accident had seriously affected her mood and her
relationships with her children and husband.

[90]        
Ms. Thorne became quite emotionally upset giving this evidence. She
came across as sincere and credible.  She described how she suffered pain when
her daughters would sit on her lap and how she felt restricted in being able to
engage in physical activities with them.  She testified that her mood was extremely
irritable and she became withdrawn.  She was extremely nervous and agitated
driving or as a passenger.  She had trouble sleeping.  All of this negatively
impacted her marriage as well.

[91]        
This evidence was corroborated by evidence from Ms. Thorne’s
husband.  It was also corroborated by her sister-in-law, Deana Thorne.  These
witnesses were spare in their words and did not appear prone to exaggeration.  I
believed their evidence.

[92]        
Dr. Wickstrom’s evidence confirmed that she had referred Ms. Thorne
to counselling for psychotherapy, to a psychologist named Dr. McEachern. 
However, Ms. Thorne reported back and testified at trial to the effect
that the rapport with this psychologist was not good.  Dr. Wickstrom
approved of Ms. Thorne seeing Dr. Zettl and did not make further
referrals.

[93]        
Dr. Wickstrom did not prescribe any mood altering drugs for Ms. Thorne.

[94]        
Ms. Thorne began seeing Dr. Zettl in March 2010 and regularly
saw her up to approximately the summer of 2012.  Over time, her mood started to
improve as she worked with the psychologist.

[95]        
 Dr. Zettl testified at trial.  She is a registered psychologist in
B.C.  She has a Ph.D. in Clinical Psychology.   She specializes in the
evaluation and treatment of post-traumatic stress disorder (PTSD) as well as
chronic pain.

[96]        
Dr. Zettl explained that with the regular counselling, by the
spring of 2011, Ms. Thorne had recovered enough to start an exercise
routine including walking, running, yoga, and golfing, and she was able to
pursue full-time employment.  Dr. Zettl reports that by this date, Ms. Thorne’s
mood had improved and her pain levels had reduced in frequency and severity.

Kirsten Vinge, Physiotherapist

[97]        
The plaintiff has pursued numerous physiotherapy sessions in order to
treat her pain and limitations.

[98]        
One of those physiotherapists, Kirsten Vinge, testified at trial.  She
explained that she first treated Ms. Thorne on April 24, 2009 and
continues to treat her.

[99]        
Ms. Vinge’s observations of Ms. Thorne were consistent with Ms. Thorne’s
evidence that she felt a lot of restriction and pain in her right leg and low
back.  Ms. Vinge noticed there was a lot of restriction through Ms. Thorne’s
lumbar spine, including muscle spasm.  Ms. Thorne was having significant
right leg pain and low back pain which were pretty much constant.

[100]     Initially,
Ms. Vinge treated Ms. Thorne from April to October 2009, but did not
feel they were making great gains, and by October 2009, Ms. Thorne’s
injuries had flared up again.

[101]     The
physiotherapy treatment then abated and Ms. Thorne was seen by Dr. Zettl.

[102]     Ms. Thorne
returned to treatment with Ms. Vinge in August 2010.

[103]     Ms. Vinge
testified that the continuing complaints from Ms. Thorne were pain in her
right hip which would sometimes also involve pain shooting down the right leg. 
There was also the pain in the right shoulder which sometimes included shooting
pain.  In the past year she has observed that some of the pain and restrictions
in her range of motion have moved to Ms. Thorne’s left side.

[104]     The
defendant suggested that the left-sided complaints were not credible.  I do not
have the same view.  It does not strike me as incredible that long-term
problems on one side of the body could eventually lead to problems on the other
side, whether from favouring the sore side and over-using the other side,
changes in posture, or other reasons.  In any event, the plaintiff is not
advancing a claim for problems to her left-side.

[105]     Ms. Vinge
observed that Ms. Thorne had quite a bit of restriction in her thoracic
spine.  She also had difficulty initiating movement of her right hip, including
lifting her right hip or moving it into flexion.

[106]     Ms. Vinge
observed Ms. Thorne is now doing “significantly better” than she was in
2009 when she first saw her.

Legal Principles

[107]     As already
mentioned, the defendant admits that she was negligent.

[108]     The
parties do not dispute the applicable legal principles that apply to a claim by
a plaintiff against a negligent defendant, which I will now summarize.

[109]      A
defendant is only liable for the injuries that her negligence caused the
plaintiff.  In proving causation, the plaintiff must prove on a balance of
probabilities that but for the defendant’s negligence, the plaintiff would not
have suffered the injuries for which she claims: Clements v. Clements,
2012 SCC 32 (“Clements”) at para 8; Midgley v. Nguyen, 2013 BCSC
693 at paras. 167-172.

[110]     When
assessing damages, the plaintiff is only to be compensated for the injuries
caused by the defendant.  The damages assessment is an attempt to put the
plaintiff in a position she would have been but for the injuries caused by the
defendant’s negligence.  The damages assessment does not compensate the
plaintiff for expenses or loss she would have incurred in her life in any
event, even without the accident, nor does it seek to put her in a better
position that she would have been if the accident had not occurred: see Moore
v. Kyba, 2012 BCCA 361.

[111]     As
mentioned, Ms. Thorne was in another motor vehicle accident in April 2011. 
The evidence was that this caused her to take some limited time off work.  She
felt that her existing injuries were temporarily exacerbated by the second
accident, but this exacerbation then went away and she returned to the way she
felt prior to that accident.  Her evidence in this regard was not
contradicted.  To the extent Ms. Thorne suffered any damages as a result
of the second accident, not attributable to the first accident, I have not
considered those damages in the case at bar.

[112]     The
assessment of damages requires the court to consider what the plaintiff’s
original position would have been had the accident not occurred, and what her
position is likely to be in the future, considering any injuries caused by the
accident.

[113]    
Past actual events must be proven on a balance of probabilities; however
past or future hypothetical events need only be proven on the basis of relative
likelihood as explained by Major J. of the Supreme Court of Canada in Athey
v. Leonati, [1996] 3 S.C.R. 458 at paras. 27 – 29.

[114]     Here, the
following categories of damages are claimed:  special expenses; loss of earning
capacity; future care expenses; housekeeping expenses; and non-pecuniary
damages.

[115]     The
assessment of a plaintiff’s loss of earning capacity, past and future, typically
requires consideration of hypothetical pre- and post-accident earning capacity
scenarios.  Thus, in considering these scenarios, the court is to consider what
is a real and substantial possibility, and make contingency allowances for the
possibility that the assumptions may prove to be wrong: Perren v. Lalari,
2010 BCCA 140; Falati v. Smith, 2010 BCSC 465, aff’d 2011 BCCA 45.

[116]     Damages
for the cost of future care are to compensate the plaintiff for expenses she
will likely incur in the future due to her injuries caused by the accident. 
Here the contentious aspect of the claim relates to expenses for physiotherapy
and counselling, and for housekeeping expenses.  Since these expenses are based
on hypothetical future events, they are to be assessed with a mind to positive
or negative contingencies reflecting the likelihood that they will be incurred
due to the injuries suffered by the plaintiff as a result of the defendant’s
negligence.

[117]    
Non-pecuniary damages are also referred to as damages for pain, suffering,
and the loss of enjoyment of life.  A number of factors are to be considered in
assessing these damages.  Some of these factors were summarized in the
oft-cited decision of Kirkpatrick J.A. in Stapley v. Hejslet, 2006 BCCA
34 at para. 46 as including:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

…

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

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

Causation

[118]     I turn now
to the factual issue of whether or not the accident caused the plaintiff’s
injuries.

[119]     There are
three general areas of symptoms that the plaintiff has experienced:  her neck,
upper back, and right shoulder and arm, which I will group together as her
upper body; her lower back, right hip, and right leg, which I will group
together as her lower body; and her mood.

Causation: Upper Body Complaints

[120]     I will
address the question of causation in relation to the upper body complaints
first.  Quoting from the defendant’s written submission, “[t]he defendant
concedes that the plaintiff sustained soft tissue injuries to her neck,
shoulder girdle and right thoracic spine. “ Orally the defendant qualified this
to submit that there may be some aspect of right shoulder pain not related to
the accident.

Dr. Shawn McCann

[121]     Dr. McCann’s
evidence is consistent with that of Dr. Anton’s, below, that the accident
likely caused Ms. Thorne to suffer injuries to her neck and posterior
scapula, and right lower back pain.

[122]    
Dr. McCann’s opinion at page 14 of his report is:

Neck and posterior scapular
pain. … it is my opinion the patient suffered a Type II Whiplash
Associated disorder of her cervical spine as a result of the motor vehicle
accident.

[123]     Dr. McCann
feels that Ms. Thorne had impingement of her right shoulder but, in his
opinion, symptoms of this were not recorded in the physical therapist or
massage therapist notes right after the accident, and so he is unable to
attribute this pain to the accident.

Dr. Hubert Anton

[124]     The defence
called Dr. Anton as a witness at trial.  He is a medical doctor practicing
in the specialty of Physical Medicine and Rehabilitation.  He assessed Ms. Thorne
on September 17, 2009, at the request of the plaintiff’s counsel.

[125]    
Dr. Anton confirmed that in his opinion, the plaintiff suffered the
following injuries in the accident:

1.         Injuries
to soft tissue structures in the neck and shoulder girdle, the right side more
affected than the left.

2.         Injuries
to soft tissue structure in the right upper back.

3.         Possible injuries to soft
tissue structures in the lower back.

Dr. Joseph Schweigel

[126]     The
defendant retained Dr. Schweigel to perform an independent medical
examination of Ms. Thorne which he did on November 9, 2009, producing a
report the same day.  He was sent further medical reports to review in 2010 and
prepared a supplement report on February 2, 2010.

[127]     Dr. Schweigel
is an orthopaedic surgeon.  He concluded that the accident caused Ms. Thorne
to sustain soft tissue injuries to the neck, shoulder, and upper back,
straining muscles and ligaments.  He described this as a mild soft tissue
injury, as opposed to a moderate injury (in contrast to Dr. McCann’s
opinion).

Conclusion: Causation Upper Body

[128]     I conclude
that it is more likely than not that, but for the accident, Ms. Thorne
would not have suffered the injuries to her neck, right shoulder, and upper
back, which caused her pain symptoms following the accident.  While Dr. McCann
had some reservations about attributing a right shoulder impingement to the accident,
the other experts did not make this distinction.  She did not have right
shoulder problems before the accident and had documented problems in this area
after the accident.  On a balance of probabilities, I find it more likely than
not that all of the symptoms in her right shoulder were caused by the accident.

Causation: Lower Body

[129]     The key
issue is whether or not Ms. Thorne’s lower back, right hip, and anterior
leg pain was caused by the accident.  On this issue, what troubled all of the
experts was the seemingly delayed reporting of symptoms in these areas.

[130]     The
defendant suggested that Ms. Thorne did not report symptoms in these areas
until more than one month after the accident, if one relies on the clinical
records, leading to the inference that the accident did not cause these
problems.  This is the key to the defendant’s experts’ opinions.

[131]     I find
that it would be wrong to say that Ms. Thorne had not complained of entire
back pain, including low back pain, early on after the accident.

[132]     Mr. Polack,
the massage therapist, testified that Ms. Thorne complained of entire back
pain, including lower back pain, in September and early October 2006. Mr. Kryczka
noted that she complained of lumbar pain on October 20, 2006.

[133]     Regardless,
it is fair to make the observation that the focus of Ms. Thorne’s initial
complaints was her right shoulder and upper back and neck; but later these
areas began to get better and the area of greatest complaint became her low
back and right hip, with pain going down her right leg, and the lower body area
of complaint worsened.

Dr. Shawn McCann

[134]    
Dr. McCann did not think that the reported lower back pain was
outside a time period that could be medically connected to the accident.  In
his opinion, it was caused by the accident.  He concluded:

Right lower back pain.  It is more probable than not
that this woman suffered a moderate soft tissue injury to her lumbar spine
and buttock area at the time of the motor vehicle accident of September 8,
2006 that has resulted in increased pain and discomfort in the area of the
right lower back.

[Emphasis
added.]

[135]     As for the
right hip and right leg, Dr. McCann was puzzled, as were many of the
treatment providers, by the fact that this complaint was delayed, and then
seemed to worsen with time.  However he concluded that these injuries were
caused by the accident.

[136]     Dr. McCann
approached the causation issue logically:  the pain and weakness in the right
hip/leg area was real; the partial tear in the proximal portion of the
ileofemoral ligament could cause that pain; a trauma of some significant force
would have to cause that kind of tear; Ms. Thorne did not report any
problems in that area prior to the accident; and Ms. Thorne denied having
any other kind of incident causing traumatic force to her body after the
accident.  He concluded that in his opinion the right hip/leg injury was probably
caused by the accident.

Dr. Hubert Anton

[137]     The
defendant relies on Dr. Anton’s opinion because he questioned whether or
not Ms. Thorne’s pain and weakness in the right leg was caused by the
accident, based on the delayed onset of those symptoms and the lack of any
neurological abnormality or diagnosis that would explain them.

[138]     Dr. Anton
concluded his opinion with the comment that it was still too early to give a
final prognosis.  He felt that further investigations were necessary.  Since he
has not seen the plaintiff since the September 17, 2009 visit, or read
subsequent medical records, his opinion can only go so far.

Dr. Joseph Schweigel

[139]      Dr. Schweigel
was strongly of the view that since there was “no documentation” in the medical
records of low back or right leg/hip pain in the days following the accident,
that the accident did not cause any injury to these areas.

[140]     He did not
doubt that Ms. Thorne subsequently had low back pain but he felt that this
must have been caused by her vacuuming and washing floors on October 17, 2006,
coming from underlying degenerative arthritis or possibly from a labral tear
caused by those activities.

Analysis of Causation of Lower Body Complaints

[141]     When
analyzing the evidence of causation as it relates to Ms. Thorne’s lower
body complaints, I note that Dr. McCann saw Ms. Thorne on more
occasions than did Dr. Anton or Dr. Schweigel, as the latter
physicians only saw Ms. Thorne once.  I consider that Dr. McCann had a
better ability to assess the patient than did either of these other two
physicians.

[142]      Also, when
Dr. Anton and Dr. Schweigel gave their opinions, they were not aware
of the information later revealed in the arthrogram/MRI report of February 2,
2011, given to Dr. McCann.  Neither Dr. Anton nor Dr. Schweigel
was asked to comment on that report’s findings that were “suggestive of a
partial incomplete tear of the proximal portion of the ileofemoral ligament.” 
Because of this, I am unable to give much weight to either of Dr. Anton’s or
Dr. Schweigel’s opinions regarding the cause of Ms. Thorne’s right
hip and right leg pain.

[143]     There is
no opinion evidence to contradict Dr. McCann’s evidence that the partial
tear could cause Ms. Thorne to suffer the pain in her right hip and right
leg of which she complains.

[144]     In
addition, neither Dr. Anton nor Dr. Schweigel knew that when Ms. Thorne
first went to massage therapy, on September 11, 2006 which was soon after the
accident, the therapist noted that her entire back was very sore and tight.  Mr. Polack
emphasized her significant pain through the use of double arrows.  He testified
that he also identified spasm in her back.

[145]     Drs. Anton
and Schweigel were only aware of problems in Ms. Thorne’s upper back
initially and they gave significant weight to what they saw as an absence of
records of lower back pain.  However, they were not able to read the notes of Mr. Polack,
massage therapist, properly.

[146]     Dr. Schweigel
recognized in his opinion of November 9, 2009 that an argument might be made
that Ms. Thorne’s discomfort in her neck and upper back was so severe that
it initially superseded any discomfort that she may have had in her lower back. 
This is a logical explanation for why the medical treatment clinical notes
initially focussed on Ms. Thorne’s complaints to her neck and upper back
and shoulder area.

[147]      It seems
to me entirely possible that a stoic patient might think to herself that what
she needs to have treated is her most acute pain, and might therefore only
raise that initially as the focus of the treatment she desires from medical
personnel.  The more acute pain may mask the other pain, or put it more in the
background with the patient thinking that it is just soreness that will go away
and not realizing that the more modest pain is going to pose a longer term
problem.  Ms. Thorne came across as a witness as someone who was trying to
“work through” her pain, and she explained that she initially was hoping her
hip pain and low back pain would go away.

[148]     The basis
for Dr. Schweigel rejecting this possibility is his interpretation of
medical records that indicated to him that Ms. Thorne’ s initial neck and
upper back pain was mild and in his view it could therefore not have superseded
other pain.   This is also his basis for ruling out a moderate soft tissue
injury:  his conclusion that her pain was only mild.

[149]     I do not
think Dr. Schweigel’s reading of the medical records matches the facts of
what Ms. Thorne was experiencing.

[150]     Dr. Schweigel
was unable to decipher the massage therapy clinical records of Mr. Polack who,
as of Ms. Thorne’s first visit to him on September 11, 2006, noted that
her entire back was “tonus” or tight and she was “very sore”.

[151]     Dr. Schweigel
discounts a record of Ms. Thorne’s visit to her family doctor on September
11, 2006 indicating she had “more severe pain between her shoulder blades”. 
Dr. Schweigel concluded that the pain could not have been severe because
she was not prescribed painkillers. This was a mistaken inference, as Ms. Thorne
testified that did not wish to take prescription medications for her pain.

[152]     I found
that Dr. Schweigel appeared to lose some impartiality in the way that he
phrased his opinions and in giving evidence in cross-examination at trial.  He
advanced propositions in black and white terms that other physicians expressed
as more nuanced.  He seemed to stray into the territory of being an advocate
when he insisted his reading of medical documentation could lead to no other
conclusion than the conclusion that Ms. Thorne did not have low back pain
in the days or weeks following the accident, and that her pain was only mild.

[153]     The whole
of the evidence that I heard at trial leads me to conclude that Ms. Thorne’s
pain after the accident was moderate or severe, not mild, and that she had
entire back pain, including the lower back.

[154]     I preferred
Dr. McCann’s evidence regarding the lower back and hip to that of Dr. Schweigel
or Dr. Anton. Dr. McCann’s conclusion that the soft tissue injury was
moderate fits with the rest of the evidence at trial.  He carefully considered the
fact that there appeared to be a delay in reporting of some of the pain – the
low back and the right hip and right leg pain – but he concluded that the most
logical conclusion nonetheless was that the accident most likely caused those
injuries.

[155]     There are
two other possible explanations for the delayed documentation of Ms. Thorne’s
low back pain and right hip/leg pain: one is that Ms. Thorne is making up
the pain; the other is that she suffered some other trauma after the accident,
which she has deliberately not disclosed to the court.  Neither explanation is
at all likely.

[156]      Ms. Thorne
was observed by many medical professionals, all of whom found evidence to
support her complaints of low back and right hip/leg pain.  Dr. McCann
explained that Ms. Thorne would need a significant trauma to cause the
tear revealed on the arthrogram.  The prospect that simply washing floors or
vacuuming might cause such a trauma is not realistic.  I also find it unlikely
that Ms. Thorne would have suffered some other accident and deliberately
hidden it in these proceedings.

[157]     Dr. Wickstrom
was cross-examined on this hypothetical proposition: if a person is in an
accident and their initial complaints relate to the neck, shoulder and thoracic
spine, and then 30 days later or more they complain of lumbar spine pain, the
lumbar spine pain would not normally be associated with the accident.  Dr. Wickstrom
strongly disagreed.  She explained that the neck, spine, and lumbar vertebrae
and thoracic vertebrae are all linked through ligament and muscle.  Often when
there is injury to one area of the spine, other areas adjust and problems can
be seen later.  As well, she noted that one significant injury can override
other things going on in the body, due to pain pathways.  She has often seen
people come in with a new complaint one month after the accident, with no cause
for the complaint other than the accident.

[158]     Dr. Wickstrom’s
explanation for a patient’s delay in reporting a pain complaint after an
accident appears consistent with common sense.  It is consistent with Dr. McCann’s
opinions as well.

[159]     The
Supreme Court of Canada reminds us that the “but for” causation test “must be
applied in a robust common sense fashion”: Clements at para. 9.

[160]     I conclude
that it is most likely that the accident did cause injuries to Ms. Thorne’s
low back and right hip and right leg area, causing her the pain and weakness
that has continued to plague her since.  But for the accident, it is likely
that she would not have suffered these injuries.

Causation: Mood

[161]     Ms. Thorne’s
evidence portrayed a deteriorating emotional state following the accident.  She
tried several different forms of therapy and exercise to try to get better. 
She continued to work despite her discomfort.  She was frustrated that she
could not get better. It would be fair to describe Ms. Thorne as being
quite miserable.  She became very short-tempered and irritable at her husband
and children and began to retreat from others.

Dr. Lynne Zettl

[162]     Dr. Zettl
diagnosed Ms. Thorne as suffering from PTSD and mild Major Depressive
Disorder.  She reports there was no prior history of these disorders and it is
her opinion that they were caused by the September 8, 2006 motor vehicle
accident and injuries.

[163]     Dr. Zettl
observed that Ms. Thorne deals with her symptoms instinctively by
withdrawing from activity and contact.

[164]     Dr. Zettl
was also of the view that Ms. Thorne suffered from post-concussion
disorder for at least two years post-accident, but the bulk of these symptoms
had resolved by the time she saw Ms. Thorne.  She bases this on Ms. Thorne’s
reports of having balance issues, dizziness, feeling that she was “in a fog”,
and having a difficult time organizing and planning.

[165]     The
defendant points out that none of Ms. Thorne’s treating physicians
diagnosed her with concussion.

[166]     Dr. Zettl
addressed the fact that Ms. Thorne did not wish to pursue taking
anti-depressant medications.  Dr. Zettl reviewed the fact that Ms. Thorne
had discussions with her physician regarding these and her physician agreed
with her decision.  Dr. Zettl commented that new research shows that daily
exercise and psychotherapy are more effective than antidepressants to deal with
depression.

[167]     There are
some potential weaknesses with Dr. Zettl’s opinion, including the fact
that she had to rely on the plaintiff’s reported symptoms.  However, I found
that the plaintiff’s presentation in court and description of her symptoms over
time closely matched the symptoms described by Dr. Zettl.

[168]     Another
potential limitation of Dr. Zettl’s opinion is that she appeared not to be
aware of the extent of Ms. Thorne’s current recreational activities.  For
example, she wrote that Ms. Thorne tries to golf nine holes with her
husband once every two weeks in the summer.  In fact, Ms. Thorne testified
that last summer she golfed eighteen holes approximately once per week with her
husband, although using a riding golf cart which she did not need to use prior
to the accident.

[169]     I do not
find this very significant.  Ms. Thorne’s sister-in-law described Ms. Thorne
as having changed after the accident, so that she now moves her body as though
she is elderly. There are people in their 80’s who golf. There is no evidence
to suggest that Ms. Thorne is a competitive golfer with an aggressive or
extremely physical golf swing.

[170]     Ms. Thorne
struck me as a very reliable witness, who was not attempting to exaggerate her
claims in this case.  Her family physician is aware of how much Ms. Thorne
has golfed with her husband.  I consider the fact that Dr. Zettl was unaware
of the extent of the golfing activity to be simply a result of a
misunderstanding in communications between Ms. Thorne and Dr. Zettl.

Dr. Kevin Solomons

[171]     Dr. Solomons
is a psychiatrist who at the request of the defendant performed an independent
medical examination on the plaintiff on August 16, 2012.  He provided an
opinion report dated October 5, 2012 and testified at trial.

[172]     Much of
his evidence confirms the plaintiff’s evidence as to her problems with mood
post-accident.  However he applies a different diagnosis than Dr. Zettl. 
In Dr. Solomons’ opinion, the accident was not severe enough to cause PTSD
nor does Ms. Thorne meet the criteria for Major Depressive Disorder.

[173]     Dr. Solomons
agreed that Ms. Thorne suffers from mechanically based chronic pain, as
opposed to a psychiatric pain disorder.

[174]    
In Dr. Solomons’ opinion, Ms. Thorne’s chronic pain following
the accident caused her to experience stress.  In his opinion the diagnosis
best fitting her symptoms is “Adjustment Disorder with Mixed Anxiety and
Depressed Mood, secondary with pain”.  In Dr. Solomons’ opinion:

Her symptoms were of a moderate
degree and did not impair her occupational functioning.  They may have had an
impact on her domestic and recreational functioning, although the primary impact
on these aspects of her functioning was the pain itself.  Though her emotional
symptoms may have caused or contributed to difficulties in her relational
functioning (which she described as strained) following the accident, she
reported to me that her relationships have now returned to normal.

[175]     It strikes
me as relatively insignificant what label one uses to describe what Ms. Thorne
went through emotionally after the accident, if one concludes that the accident
caused this emotional suffering.  If, as Dr. Solomons notes, the accident
caused the chronic pain, then the emotional suffering was caused by the
accident.

[176]     I am
satisfied on the evidence that but for the accident and its after-effects
including the pain from her injuries, Ms. Thorne would not have suffered
the deterioration in mood that she experienced after the accident.

Diagnosis and Prognosis

[177]     I will now
address the current diagnosis and prognosis for Ms. Thorne in respect of the
same three areas: her upper body; her lower body; and her mood.

Upper Body

[178]     Dr. McCann’s
opinion is that Ms. Thorne’s neck and posterior scapular pain and
discomfort, caused by the accident, lasted until approximately 2011.  It now is
intermittent but is aggravated by more extreme tasks.

[179]     Dr. Wickstrom
prepared a report dated December 12, 2012, in which she reviewed each of Ms. Thorne’s
reported injuries and the course of these injuries over the years.  With
respect to neck pain, Dr. Wickstrom wrote that it started after the
accident and continued “really up until approximately a year ago with
intermittent pains and limitation in range of motion”.  Dr. Wickstrom
explained at trial that her intention was to indicate that the neck pain had
improved but had not completely resolved.

[180]     Dr. Wickstrom
was aware that Ms. Thorne was golfing, using a cart, and was running on a
treadmill approximately three times per week.  She was aware of this when she
wrote her report of December 12, 2012, stating that the injuries have resulted
in significant limitations in Ms. Thorne’s personal life.  Dr. Wickstrom
commented in cross-examination that the exercises including golf that Ms. Thorne
does help her emotionally because she enjoys it, and they will not cause her
further damage.  At one point, Dr. Wickstrom did advise Ms. Thorne to
stop running but Ms. Thorne reported back feeling stiff and feeling more
pain, and that movement was good for her.

Right Lower Body

[181]     The
symptoms in Ms. Thorne’s lower body have turned out to be more significant
and limiting to her than her initial upper back, neck and shoulder complaints.

[182]     Since her
right hip symptoms have lasted over 5 years, it was Dr. McCann’s opinion
in 2011 that Ms. Thorne has probably reached the maximum recovery she is
going to reach.  In other words, it is likely that her symptoms will continue.

[183]     Dr. McCann
noted two additional treatments that may help Ms. Thorne.  He thought that
she might be able to obtain some relief from prolotherapy.  This is a therapy
which injects a sugar based solution into the ligament to speed up recovery. As
it turns out, she has had some relief from that therapy.

[184]     As well,
in relation to her lower back pain, which Dr. McCann feels is mechanical
in nature coming from the soft tissue structures in the lumbar spine, Dr. McCann
felt that if it worsens she may be a candidate in the future for a right L5-S1 medial
facet rhizotomy.  The relief that might be provided by that type of surgery is
variable, and usually only provides temporary relief as well.  He felt that it
was reasonable for the patient to instead continue to try to manage her pain
through her lifestyle.

Mood

[185]     After her
counselling with Dr. Zettl, the cloud over Ms. Thorne has lifted.

[186]     As Ms. Thorne
described it, she feels currently that she still needs emotional improvement
but she is not in the same dark place as she was before.  She does not feel
back to normal, but feels that she is on the mend and if she can continue
counselling she can help deal with her stress and anxiety levels and stay on a
more even keel.  She explained when she is dealing with a lot of pain it raises
her stress and anxiety levels.

Dr. Lynne Zettl

[187]     Dr. Zettl’s
opinion is that Ms. Thorne’s PTSD is resolving, but she is vulnerable to
having symptoms increase in severity and frequency under stress and without
treatment of ongoing chronic pain.  In her opinion, Ms. Thorne’s chronic
pain keeps her PTSD and depression from resolving completely.

[188]     Dr. Zettl
noted that Ms. Thorne is likely to have continuing limitations in her
participation in her personal relationships with her husband and her children,
and will not have the energy to participate in them at the same level as
pre-accident.  As well, she will be unable to do all the recreational
activities she previously enjoyed without exacerbating her pain level from a
4/10 to an 8/10.  She will not have the capacity to deal with increased stress
and change in her employment, and will require flexibility and a variety of
movement and activity so she can deal with chronic pain.

[189]     Dr. Zettl
recommended that Ms. Thorne continue in psychotherapy twice per month for
the next two years, and then on an ongoing monthly basis.  However, Ms. Thorne
did not find it necessary to follow this recommendation over the past year.

[190]     In the
last approximately one year, Ms. Thorne is no longer seeing Dr. Zettl,
but continues to see Ms. Vinge, the physiotherapist.  While Ms. Vinge
has had some counselling training, she does not hold herself out as a
counsellor.  Nevertheless, Ms. Thorne does find that seeing Ms. Vinge
regularly helps her mood.

Dr. Kevin Solomons

[191]     Dr. Solomons
credits Ms. Thorne’s counselling with Dr. Zettl as alleviating much
of the emotional sequelae of her pain.   He considers that it was reasonable
for her to receive this counselling treatment.

[192]     I note
that even if one was to disagree with Dr. Zettl’s diagnosis, she must have
had some understanding of Ms. Thorne’s symptoms to be able to treat her as
successfully as she did.

[193]     As for
prognosis and future care needs, Dr. Solomons disagrees with Dr. Zettl’s
opinion as to the quantity of future psychological treatment that Ms. Thorne
may need.  However, he agrees with Dr. Zettl that Ms. Thorne is
vulnerable to relapse under stress or change.

[194]     Dr. Solomons
thinks that Ms. Thorne will likely continue to find ongoing pain to be
stressful.  He noted that she may relapse from time to time in her ability to
cope, in which case in his opinion a short course of 6 to 12 counselling
sessions will likely restore her coping abilities.  He estimated the cost of
such sessions may range between $150 to $200 per session.  He acknowledged in
cross-examination that it is difficult to predict how many times this assistance
might be needed by Ms. Thorne in the future.

[195]     I turn now
to the assessment of damages.

Special Expenses

[196]     The
plaintiff incurred a large number of expenses in relation to medical
treatments, totalling $30,255.48.  Of this claim, approximately $8,615.00
relates to housekeeping services.  I will consider this item separately.  The
majority of the claim relates to massage therapy, physiotherapy, and
counselling.

[197]     There was
no medical evidence to support the $290 spent for homeopathic treatment.

[198]     The
plaintiff’s claim includes a claim for the approximately $1,069.64 cost of
attending yoga, which the plaintiff finds therapeutic.  However, the plaintiff
readily agreed in cross-examination that she attended yoga before the accident,
and her expenses have not increased in this regard.  She agreed that there is
nothing new about the yoga expenses as a result of the accident.  I conclude
that even without the accident having occurred, Ms. Thorne would have
incurred these expenses.  She is therefore not entitled to compensation for
them.

[199]     Ms. Thorne
was encouraged by her family doctor to continue the various massage, physiotherapy,
and counselling treatments.  She did not pursue treatment when she felt it was
of no longer any benefit.  I find that all of the other medical expenses were
reasonably and necessarily incurred to treat her injuries.

[200]     I note
that there was no spike in treatment following Ms. Thorne’s 2011
accident.  I find that all of the claims relating to her treatment expenses
relate to the accident at issue in this case.

[201]     The
treatment costs, when the housekeeping, homeopathic, and yoga expenses are
deducted, add up to $20,280.84. On top of this I would add the approximately
$100 spent on prescriptions, for a total of $20,380.84.

[202]     In
addition, Ms. Thorne claims approximately $2,010 relating to mileage to
attend the various appointments.  I acknowledge that some fuel expense was incurred,
but some of these trips to appointments were also combined trips for errands. 
I would assess $1,000 as  appropriate.

[203]     In
addition, Ms. Thorne makes a claim for the costs of re-training, namely a
Certified Educational Assistant (“CEA”) course which cost her $3,442.50.  Dr. Anton’s
opinion was that it was “medically reasonable” for Ms. Thorne to change
jobs, if her descriptions of pain and workplace exacerbating factors were
accurate.  I accept her evidence that she chose to take training as a CEA and
to change jobs because she felt it would mean that she would not have to remain
in a single position for long periods of time and that this would be better for
her to manage her pain.  While there are physical aspects of her new job, she
is better able to manage them than she was able to manage the physical aspects
of her position as a dental assistant.

[204]     Furthermore,
choosing to train as a CEA was a way for Ms. Thorne to mitigate her
damages:  she might well have a higher past loss claim were it not for her
effort to take this training after hours and then to switch careers once she
was qualified.  I therefore find that the expense she incurred in taking the
CEA training was reasonable and necessary.

[205]     I award
the plaintiff $24,823 in total as special expenses.

Loss of Earning Capacity

[206]     In order
to assess the plaintiff’s claims in relation to loss of earning capacity, it is
necessary to review her work history and career plans before and after the
accident, and determine whether or not her injuries impose some limitations on
her ability to work.

[207]    
There are two arguments advanced by the plaintiff’s counsel:

·       that
Ms. Thorne would have worked more hours for more pay than she did work,
prior to trial, but for the accident; and,

·      
that Ms. Thorne would have worked more hours for more pay in
the future than she is now capable of working, but for the accident.

[208]     The
plaintiff’s counsel bases both theories on the premise that but for the
accident, the plaintiff would have taken one year off work in 2010 to train as
a dental hygienist, after which she would have worked as a dental hygienist
earning $80,000 per year.  On this theory, the plaintiff’s injuries limited her
to working as a CEA earning approximately $22,000 per year plus Employment
Insurance benefits during the summers, bringing her total earnings to around
$25,000 per year.

[209]     The
defendant argues that the plaintiff has in fact suffered no loss of earning
capacity, past or future.  The plaintiff’s employment income has risen since
the accident, with the plaintiff moving from her work 2 days a week as a dental
assistant, to her work as a CEA, working part of 5 days per week during the
school year.

[210]     I note
that I did not find the medical opinions relating to work tolerance helpful in
that the physicians largely relied on Ms. Thorne’s reports as to how many
hours she was able to tolerate due to pain.  This was not a case where there
were occupational assessments performed or expert opinions as to Ms. Thorne’s
functional abilities.

[211]     Also,
there were changes in the hours that Ms. Thorne worked from year to year
as a CEA and I was left with the sense that the physicians may have been
confused as to what year was being talked about when they made their notes. 
Furthermore, the evidence did not clarify the use of terminology:  ordinarily
full-time work means working 35 to 40 hours per week; but at times “full-time”
was used to refer to 25 hours per week as a CEA.  I therefore have no
confidence as to what a particular physician may have meant when referring to Ms. Thorne
working or not working full-time.

[212]     I am of
the view that I am equally able to judge Ms. Thorne’s evidence as to her
ability to work, and the comments in medical opinions on this point are
therefore of little weight.

Future Plans to Become a Dental Hygienist

[213]     Prior to
the accident, Ms. Thorne was working 2 days per week in her employment as
a dental assistant.  She still had two young children at home.

[214]     Ms. Thorne
testified that her plan was to increase her work hours, over time, starting when
her youngest daughter reached 10 years old, which would be in 2010.  Initially,
in 2006, she wanted to increase her hours at her then current employer to three
days per week, and had plans to apply for part-time work as a receptionist in
September 2006.

[215]     Ms. Thorne
testified that before the accident she wished to become a dental hygienist. 
She understood that she could use some of her dental assistant training as
credits.  Working in that capacity, she expected she would more than double the
hourly rate she was earning as a dental assistant.

[216]     A dental
hygienist was called as a witness to testify as to her hourly rate.  Indeed,
she earns roughly double the hourly rate that the plaintiff was earning as a
dental assistant, and typically full-time work is 38 hours per week.  However,
this witness agreed that there are many more institutions now training dental
hygienists, and the competition for jobs has increased in the last couple of
years.

[217]     Unfortunately
there was not enough evidence on this prospect to persuade me that it was ever
a reasonable possibility that Ms. Thorne would take the dental hygienist
training and obtain employment in that field.  In 2010, when she would have
started to consider this option, she would have been 48 years old.

[218]     The
evidence of Ms. Thorne and her husband suggests that the nearest
institutions offering dental hygienist courses were based in either Prince
George or Vancouver.  Ms. Thorne testified that she planned to pursue this
career in 2010, by spending a couple of years taking courses online, and then
attending a final year on-site in Vancouver.   I note that this would have
meant that she would be finishing up her dental hygienist training sometime in
2013, when she was age 50 or 51.

[219]     The
defence points out that Ms. Thorne had other goals that were not
necessarily consistent with becoming a dental hygienist.  Ms. Thorne had
worked as a dental assistant and receptionist since 1983 without taking
concrete steps to become a dental hygienist.  In 2006 she was taking a course
to be able to assist at an orthodontist’s office.

[220]     There was
no evidence as to how Ms. Thorne intended to juggle her family
responsibilities with attending dental hygienist training in a long-distance
location.  Her daughters are still young and in school, and she is the primary
person taking care of them and the household.

[221]     There was
also no evidence as to how long Ms. Thorne might expect to be unemployed
if she were to pursue this option, beyond the one year attending school in
Vancouver.

[222]     I do not doubt
the notion that becoming a dental hygienist was a dream of Ms. Thorne’s. 
However, I cannot but conclude that other life events — marriage, raising
children — and not the accident, would have equally interfered with this dream
being achieved.  Without more information showing that she had researched the
requirements of a dental hygienist and had more of an established plan to
pursue that goal, I am not able to conclude that becoming a dental hygienist was
a realistic possibility nor that the claim for loss of earning capacity should
be premised on it.

Limitations at Work

[223]     Ms. Thorne
testified that, following the accident, she found it increasingly difficult to
perform her job duties as a dental assistant.  She found that her job required
her to sit for long periods of time, and this was difficult for her hip and
back.  She also found the reaching position, where she would hand instruments
to a dentist from a seated position, to be hard on her shoulder.

[224]     She also
feels that her shoulder injury contributed to her failing a typing test in
September 2006, which she needed to pass in order to qualify to be a
receptionist at her work.

[225]     On her own
initiative, because of her assessment that she needed a job where she could
move around and shift positions rather than sitting or standing for too long at
a time, she decided to pursue training as a CEA.  She pursued this training,
taking a night and weekend course beginning in September 2007 and ending in
June 2008.

[226]     The
defendant made much of a report by Dr. McCann in his consult report to Dr. Wickstrom
dated October 2, 2008.  In that report, he wrote that Ms. Thorne “finds
standing is her most painful position”.  However, in a later report, Dr. McCann
wrote that Ms. Thorne found sitting to be the most difficult position.  This
suggests he may have made a mistake in one of his reports.  But he also noted
that she found prolonged sitting and prolonged standing to be difficult.  In my
view, none of this is inconsistent with Ms. Thorne’s evidence that she
feels the need to move around to avoid worsening her pain and stiffness.

[227]     Dr. Wickstrom
corroborated Ms. Thorne’s evidence that she reported having problems in
her dental assistant employment because she had to sit and lean forward in a
position that aggravated her pain.  Although normally this hearsay evidence is
not admissible to bolster a plaintiff’s credibility, to the extent there is a
suggestion that Ms. Thorne may have been changing her story over time,
this evidence is consistent with her evidence at trial that she was having
difficulties at the time she was seeing Dr. Wickstrom in 2008.

[228]     Eventually
Ms. Thorne left her job as a dental assistant for employment as a CEA,
towards the end of 2008.  I have already noted that I accept Ms. Thorne’s
evidence that the reason she made this career change is that she thought she
could manage it better than employment as a dental assistant or receptionist,
due to her pain in sitting for prolonged periods of time.

[229]     As a CEA, Ms. Thorne
is able to work more hours than she had as a dental assistant, and to earn more
per hour.  She is also able to be home from work to be involved with her
children coming home from school, and has summer and school holidays off work
as well, which is something she regards as beneficial.

[230]     She is
very good at her job as a CEA, according to the person who supervises her
work.

[231]     Ms. Thorne
has never lost days of work because of her injuries.  Her employment income
after the accident is more than it was before the accident.

[232]     I accept
the thrust of Ms. Thorne’s evidence that prior to the accident, her
long-term plan was to increase her employment once her youngest daughter turned
10 years old, in 2010, starting gradually.  Unfortunately, this is difficult to
quantify.  But even before 2010, as early as 2009, Ms. Thorne did in fact
increase her hours of work.  From 2009 to present, she has worked in the range
of 20 hours to 25 per week.

[233]     Ms. Thorne’s
evidence was that she turned down opportunities to work “full-time” as a CEA
and instead chose to accept “part-time” work in the 2010-2011 school year when
offered a position at a middle school.  There is a difference between 25 “full-time”
hours and 20 part-time hours, i.e. approximately 5 hours extra per week for “full-time”
work, earning approximately $21/hour.  Her evidence was that she felt that in
the prior year working the greater hours had been too difficult for her with
her pain.

[234]     Ms. Thorne’s
evidence was that in the 2011-2012 school year she again accepted a “full-time”
contract.

[235]     However, Ms. Thorne’s
evidence was that in the current school year, 2012-2013, she is working 20
hours per week as a CEA, and an additional 2.5 hours per week as a supervisor
of children during breaks (it was unclear to me whether this is recess or lunch
breaks).  The latter position pays slightly less than the former. Her evidence
suggested that she had been offered more hours, as a “full-time” position
caring for the same child she currently assists, but she felt too limited by
pain to take on that position.  On my calculations, the difference in hours
works out at most in the range of $3,000 or $4,000 per school year.

[236]     The
defendant argues that Ms. Thorne’s evidence that she turned down longer
hours this school year was contradicted by another witness, Kayla Ashman,
the person who assigns these contracts in the school district.  Ms. Ashman
testified that the school district did not want a single person looking after
the child who Ms. Thorne currently assists, but instead wished to assign
the child between two different CEAs.

[237]     I am not
convinced there was a contradiction between these two witnesses as opposed to
some other explanation. Ms. Thorne was never challenged on her evidence
that she deliberately declined working more hours during the current school
year (2012-2013) because of her pain.

[238]     In Ms. Thorne’s
employment as a CEA, she is able to move around more frequently than if she had
a desk-job.  However, there are still physical aspects to the work.  At times
she may have to manage or assist a large child.

[239]     Craig
Washburn is a CEA who has worked at the same school as Ms. Thorne.  He
first met her in the 2011-2012 school year.

[240]     He
confirmed that from his observations, Ms. Thorne appeared to have a sore
back.  For example, she had difficulty getting up off the floor or from a
bending over position, at times.  As well, he noticed her putting her hand
behind her back to rest on her right lower back and right hip, seeming to
indicate soreness.  He also observed that she is uncomfortable sitting or
standing for a long period of time and so liked to change positions often
during the day.  For example, she may stand for part of a school assembly
rather than remaining seated the whole time.

[241]     Ms. Ashman
is a resource teacher at the school district where Ms. Thorne works.  She
described Ms. Thorne as one of her best CEAs and as being great with kids.

[242]     Ms. Ashman
identified that the CEAs employed by her school district must be capable of
performing all physical aspects of the job.  The job can be sometimes
physically demanding depending on the student assigned to the CEA.

[243]     Ms. Ashman
did note that the school at times provides some accommodation for Ms. Thorne. 
For example, Ms. Ashman noticed that it was difficult for Ms. Thorne
to get up off the floor.  Since she was first assisting with a kindergarten
student, Ms. Ashman spoke to the school’s occupational therapist and had a
stool provided to assist Ms. Thorne.

[244]     I accept
Ms Thorne’s evidence that since the accident, she has found that her pain increases
when she works longer hours.

[245]     With
respect to pre-trial loss of earning capacity, the question is whether, but for
the accident, there is a real possibility that Ms. Thorne would have
sought and obtained employment that provided more hours or more pay than she
actually did obtain pre-trial.  I find there is a substantial possibility that
she would have done so were it not for the pain she suffers due to her injuries
caused by the accident.  However, I must also take into account the possibility
that she would only have increased her hours modestly, given that she still had
two children who were at home after school hours, and the strong chance that
she would have chosen employment that allowed her to continue to be the primary
caregiver in the home.

[246]     As for
future loss of earning capacity, the same question applies:  but for the
accident, is there a real possibility that Ms. Thorne would have sought
and obtained employment that would provide more hours or more pay than she
actually will obtain now that she is coping with injuries and pain?  I find
that there is such a real possibility that Ms. Thorne would have been able
to increase her employment hours and earnings over time as her children got
older and especially once her children finished high school.

[247]      There is
no easy way to assess Ms. Thorne’s loss of earning capacity.

[248]     The
evidence in this case does not support performing the type of calculations
advanced by plaintiff’s counsel –  comparing a dental hygienist’s income to the
actual income being earned by the plaintiff now, and projecting it forward to
age 65.  I note that the plaintiff’s counsel has not suggested any
contingencies or present value calculations that would be applied to such an
approach, leaving such adjustments to the court’s imagination.

[249]     I find
that Ms. Thorne’s injuries have left her with less stamina to work and
made her somewhat less attractive to future employers.  On the other hand, her
injuries have not prevented her from working.  The possibility that the
injuries have caused her to suffer some limits in her working capacity must be
partially discounted by the possibility that she would not have pursued a full
spectrum of employment options given her prior work history, her age, and the ages
of her children.  The possibility that her limitations are becoming more
manageable with her treatment must also be taken into account.

[250]     It seems
to me the most appropriate approach is to consider the plaintiff’s loss as
similar to the impairment of a capital asset, as discussed in Brown v.
Golaiy, (1985), 26 B.C.L.R. (3d) 353 (S.C.).

[251]     On this
basis, I assess Ms. Thorne’s total loss of past and future earning
capacity as $40,000.

Future Care Expenses

[252]    
The plaintiff seeks compensation for the following future expenses:

·       physiotherapy,
massage therapy, or other forms of therapy such as chiropractic;

·       counselling
for mood and pain coping; and

·      
housekeeping assistance.  I will address this expense separately.

[253]     The
defendant argues the proposition that common sense must govern claims of this
nature, citing Penner v. Insurance Corporation of British Columbia, 2011
BCCA 135 at para. 13, which cites Travis v. Kwon, 2009 BCSC 63 at paras. 109-111.

[254]     I agree
with the common sense proposition.  However, I note that the present case is
not like the cited cases, in that here the plaintiff has not hired an expert
who has put forward a laundry-list of every possible item that will be needed
in the future, including small items like cold packs or dusters.  Rather, the
plaintiff has been sensible in her approach of explaining honestly what she has
been through in the last several years, and predicting that some of these
expenses are likely to continue in the future.

[255]     Over the
course of the approximately 7 years since the accident, the plaintiff has spent
approximately $3,500 per year on various therapies.  Her efforts have been
fruitful in that her symptoms have become more manageable, and so she is
unlikely to need the same intensive level of therapy on a week-to-week basis in
the future.

[256]     Dr. Wickstrom,
Ms. Thorne’s family physician, is of the opinion that Ms. Thorne will
continue to need physiotherapy, counseling, and chiropractic treatments. I
accept the logic that if the plaintiff’s injuries continue, which is likely, from
time to time it will be medically necessary for her to receive some of these
kinds of treatments, and she is entitled to an award for the cost of future
care to reflect this.

[257]     I do not
accept she will need counselling to the full extent predicted by Dr. Zettl.

[258]     I find
that there is a real and substantial possibility that Ms. Thorne will need
some ongoing therapies such as physiotherapy, massage therapy or occasional
chiropractic therapy, as well as psychological counselling, to manage her ongoing
pain and symptoms caused by the accident.

[259]     It seems
there is some likelihood that over time there will be less and less medical
necessity for some number of the overall treatments, and these will become more
of a tool for Ms. Thorne to obtain greater enjoyment of life.  To the
extent the latter is the case, the award of non-pecuniary damages will
compensate her.

[260]     I find
that it is reasonable to assess Ms. Thorne damages for the cost of future
treatments, whether physiotherapy, massage therapy, counselling, or other
treatments to assist her in dealing with stiffness and pain, in the amount of
$20,000.

Housekeeping Expenses

[261]     The
plaintiff claims past and future housekeeping expenses as part of the special
expenses claim and the claim for the cost of future care.

[262]     Prior to
the accident, Ms. Thorne performed the majority of interior housekeeping
work in her household including cooking, cleaning, and laundry.

[263]     After the
accident, Ms. Thorne found that the heavier chores, such as washing floors
and windows, scrubbing bathrooms, and vacuuming, were too painful for her to
perform.

[264]     Eventually
she hired a housekeeper in February 2009, and she continues to hire that
service twice per month.  To date she has spent approximately $8,615.00 on
these services.

[265]     Ms. Thorne
testified that she continues to need this assistance because the heavier chores
are still too painful for her to perform.  While her husband does some of the
household work, mainly the outdoor yard work, his full-time job often takes him
away from home.

[266]     The
defendant challenged Ms. Thorne in cross-examination, suggesting that she
only hired a housekeeper once she had started working more hours as a CEA in
February 2009.  Ms. Thorne acknowledged that she did not hire a
housekeeper until then.  The sense of her evidence was that after the accident her
household was not being kept up to the standards she had followed pre-accident
and eventually she felt it necessary to hire a housekeeper.  This was confirmed
by her sister-in-law’s observations.

[267]     Since the
most hours that Ms. Thorne has worked as a CEA has been 25 hours per week,
I do not accept the implication raised in cross-examination that her employment
is the sole reason for hiring a housekeeper.  Ms. Thorne’s working hours
leave her with enough time to do her own housekeeping all other things being
equal.

[268]      What I
have difficulty with in this case is drawing the line between a medically
necessary expense, and a choice made to incur an expense in order to have more
enjoyment in life

[269]     There is
no evidence from a physician or other medical professional that housekeeping
assistance is medically necessary, or that Ms. Thorne is functionally
unable to perform housekeeping tasks.  Rather, the evidence suggests that
certain housekeeping tasks will exacerbate her symptoms and so she
understandably would prefer to get help with these activities rather than
suffer the risk of increased pain.  By paying for housekeeping assistance, she can
enjoy her home more and she is left more able to perform her employment
functions and to engage in other, more pleasant, activities.

[270]     I have
concluded that the evidence does not satisfy me that the housekeeping expense
is medically necessary and should be compensated as an aspect of past or future
care costs.  I have, however, taken it into account in the assessment of
non-pecuniary damages, in appreciating that due to her injuries she will suffer
more pain doing these types of activities and less enjoyment of life.

Non-Pecuniary Damages

[271]     I turn now
to the category of non-pecuniary damages.

[272]     Ms. Thorne
explained at trial the many uncomfortable symptoms she has endured in various
degrees following the accident:  headaches; feelings of dizziness; long lasting
pain in her neck, shoulder and upper back; pain in her lower back; pain in her
right hip and leg; and emotional problems.

[273]     Ms. Thorne
testified at trial that she still gets headaches 2 or 3 times per week, and
severe pain in her neck 3 or 4 times per month.

[274]     Ms. Thorne
testified that she continues to have episodes of more severe pain and stiffness
and continues to search out ways to treat these problems. In November 2012, she
woke up with her back seized up and then was referred by her physiotherapist to
a chiropractor, who she has seen.  That led to a referral to a kinesiologist
with whom she is working to ensure she is performing exercises correctly.

[275]     Ms. Thorne
testified that her most serious pain currently is in her lower back.   She feels
it is a radiating pain that shoots off into her right hip in the back and above
her buttocks.  The pain also shoots into her groin and down her right leg to
about her knee.

[276]     As for her
mood, she feels that she is learning to deal with her pain but as it increases
so do her stress and anxiety levels.

[277]     There is
no doubt that her injuries seriously affected her enjoyment of life in the
past.  They have negatively impacted her enjoyment of every aspect of her life:
her personal relationships; her ability to care for her home to the same
standards as pre-accident; and her ability to enjoy work.  While Ms. Thorne
has found ways to cope, she is likely to always be coping with pain and her symptoms
in her future, and this will continue to limit her enjoyment of life.

[278]    
The plaintiff suggests the following authorities are useful:

·                
Cleeve v. Gregerson, 2007 BCSC 1112 ($85,000 non-pecuniary
damages)

·                
Beagle v. Cornelson Estate, 2012 BCSC 1934 ($90,000
non-pecuniary damages)

·                
Combs v. Bergen, 2013 BCSC 321 ($70,000 non-pecuniary
damages)

·                
Ortega v. Pena, 2012 BCSC 1884 ($80,000 non-pecuniary
damages)

[279]    
The defendant cites the following authorities as more comparable:

·                
Cabral v. Brice, 2010 BCSC 197 ($50,000 non-pecuniary
damages);

·                
Perry v. Ismail, 2012 BCSC 123 ($42,500 non-pecuniary
damages);

·                
Warner v. Cousins, 2012 BCSC 1737 ($50,000 non-pecuniary
damages);

·                
Wepryk v. Juraschka, 2012 BCSC 974 ($50,000 non-pecuniary
damages); and

·                
Williams v. Loverock, 2013 BCSC 153 ($50,000
non-pecuniary damages).

[280]     Of course,
no two cases are alike.

[281]     In this
case, the plaintiff not only suffered serious pain for almost seven years since
the accident, she is likely to continue to do so.  Her pain has been in two
separate areas of her body: upper body and lower body.  In addition, the
plaintiff here suffered serious emotional distress as a result of her injuries.

[282]     Ms. Thorne
is not as likely to get the same enjoyment from her work that she otherwise
would have, but for her injuries, due to her pain.  Thus, while her injuries
may not be reflected in a large loss of earning capacity award, her loss of
enjoyment from her work may be reflected in the award for non-pecuniary
damages.

[283]     Ms. Thorne
used to be able to keep her house spotlessly clean, but now finds her pain
inhibits her ability to maintain it at the same level.  While I have concluded
it is not medically necessary for her to hire housekeeping assistance, no doubt
it is important for her to be able to do so in order to better enjoy life and
cope with her injuries.

[284]     Ms. Thorne
used to be much more physically affectionate with her children, and active in
playing sports with them, but her injuries have seriously inhibited this
behaviour.  This clearly has imposed on her a large emotional loss, as it made
her more distant from her youngest children as they were growing up than she
would have otherwise been.

[285]     Ms. Thorne
used to be able to be more active recreationally with her husband.  While she
has found ways to compensate for this, she nevertheless no longer can get the
same pleasure from recreational activities that she used to do.

[286]     In all the
circumstances here, I find that an appropriate award for non-pecuniary damages
is $75,000.

Conclusion

[287]     I conclude
that the accident caused Ms. Thorne to suffer injuries to her neck, upper
back and right shoulder; to her lower back, right hip and right leg; and to her
mood.

[288]    
I have awarded her the following damages:

[289]    
The total damages awarded are $159,823.

[290]    
The plaintiff would ordinarily be entitled to her costs at the ordinary
scale.  However, if there are facts of which I am not aware relating to costs,
the parties are at liberty to seek a further hearing before me on costs.

“S.A. Griffin, J.”
The Honourable Madam Justice Susan A. Griffin