IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130528

Docket: M126918

Registry:
New Westminster

Between:

Melissa McKenzie

Plaintiff

And

Jaspal S. Sidhu
and SafecoTrucklines Ltd.

Defendants

Before:
The Honourable Madam Justice E.A. Arnold-Bailey

Reasons for Judgment

Introduction

[1]            
Melissa McKenzie (“the plaintiff”) is suing Jaspal S. Sidhu and Safeco
Trucklines Ltd. (“the defendants”) in negligence for damages in relation to
injuries she sustained in a motor vehicle accident (“the accident”) that
occurred on July 18, 2008. The accident occurred when Mr. Sidhu, driving a large
tractor-trailer, attempted to make a left turn into a commercial driveway across
a busy thoroughfare and the trailer collided with the rear left side of the
plaintiff’s vehicle. The defendant Safeco Trucklines Ltd. was the registered
owner of the tractor unit and the defendant Sidhu was its “owner/operator”. Liability
for the accident is in issue, as is the quantum of damages sought by the
plaintiff for injuries she alleges were caused by the accident. The plaintiff
seeks non-pecuniary damages, special damages, future income loss, loss of earning
capacity, cost of future care and special costs for the days of the trial spent
on liability.

[2]            
 The accident occurred on July 18, 2008 between 4:00 and 4:30 p.m. when
the plaintiff was heading westbound on 96^th Avenue near 195^th
Street, in Surrey, British Columbia. The plaintiff was driving her 2005 Pontiac
Sunfire vehicle. She was caught up in traffic, which was heavy in both
directions, and had been stopped when the defendant Sidhu, who had been
travelling eastbound attempted to make a left turn behind her vehicle across 96^th
Avenue into the driveway of a commercial mall. As the defendant Sidhu embarked
upon his left turn, part of the trailer hit the left rear of the plaintiff’s
vehicle as the trailer angled across the westbound lane. The plaintiff’s vehicle
was damaged when the trailer collided with it in the area of the left rear roof
support and the impact shattered the rear windshield. Fortunately, realizing
that he had hit something, the defendant Sidhu stopped the tractor-trailer and backed
up about two feet. Otherwise, from the plaintiff’s point of view, the collision
would have been much more serious.

[3]            
The plaintiff was 28 years old at the time of the accident. She claims
to have sustained injuries in the accident: soft tissue injuries to her neck, lower
left back and shoulders and injuries to her left hip and thigh. She claims to have
experienced considerable pain and discomfort from the injuries to her left hip
and thigh up to the time of trial – some four years after the accident. She
sought medical attention and has engaged in a long regime of treatment.
Unfortunately, her injuries have not fully resolved.

[4]            
The plaintiff aspired to be an RCMP officer, although she had failed the
physical test that applicants are required to pass (the “PARE” test) twice
prior to the accident. As a result of her injuries from the accident she has
since given up her plan to pursue a career as an RCMP officer. Since the
accident, she has completed her Bachelor’s degree in Criminology and is now
working as an insurance adjuster.

[5]            
From the age of eight years old, the plaintiff has been involved with
raising and riding Quarter horses. Just prior to the accident she was keeping a
horse in Washington State and travelling there regularly for riding lessons.
She trained and showed a number of horses and was regularly attending horse
shows. The plaintiff claims that she can no longer ride horses or be involved
in their care to the extent she was before prior to the accident. She also
claims that her ability to pursue other physical activities, like running, is
much diminished. She has gained weight and the physical limitations she now has
arising from injuries sustained in the accident have caused her to limit or no
longer pursue the physical activities she previously enjoyed. She continues to suffer
from pain in the area of her left hip and thigh, and from sleep disruption and
fatigue.

[6]            
The plaintiff’s position is that the defendants are wholly liable for
the accident; in particular, that the defendant Sidhu was negligent by commencing
a left turn when there was insufficient room for him to safely complete the
turn, thereby striking her vehicle with the trailer. It is her position that
she was not blocking the commercial driveway into which the defendant Sidhu was
turning, but in any event she was unable to move because of the stopped traffic
in front and to the side of her. It was, according to the plaintiff, Mr.
Sidhu’s responsibility to make the left turn safely.

[7]            
The defendants’ position regarding liability for the accident is that
the plaintiff was stopped in a manner so as to partially block the driveway and
then she started to move with the traffic, and suddenly stopped. In their view,
she is wholly or partially liable for the accident due to her negligence. In
the event that the defendants are found wholly or partially liable for the
accident, they submit the accident did not cause the plaintiff’s injuries as
claimed. Alternatively, they submit that the proper quantum of damages for
injuries sustained by the plaintiff is considerably less than the amounts claimed.
They submit the plaintiff was not as seriously injured as she claims and that
some of her pain and injuries were pre-existing. Furthermore, they submit there
is no indication she would have passed the PARE test, and even if she had, there
is no indication that she would likely have been accepted to become an RCMP
officer. The defendants also submit there is no reliable evidence that the
plaintiff over time will make less income from her present employment as an
insurance adjuster as compared to a police officer.

The trial

[8]            
The evidence at trial was heard over approximately five days split
between 2011 and 2012. Final submissions were heard on the last day of the hearing
and the Court requested and subsequently received further written submissions
and authorities regarding the plaintiff’s claim for loss of future earning
capacity.

[9]            
I also note that certain documents put to several witnesses in
cross-examination were marked as exhibits for ease of future reference given
their detail, but were agreed not to be admissible for the truth of their
contents. In particular, this applies to the clinical records put to Dr.
Eksteen in cross-examination marked as Exhibit 2.

[10]        
The evidence called on behalf of the plaintiff was comprised of her
testimony on the issue of liability and claims related to her injuries. On the
issue of liability the plaintiff also called Lisa Mohr, who witnessed the
accident, and read in portions of the examinations for discovery of the
defendant Sidhu and Mr. Dhillon on behalf of the defendant Safeco Trucklines
Ltd. With regards to her condition before and after the accident she called her
boyfriend, Christopher Ordano. She also called a former co-worker she met after
the accident, Sarah Moore. In terms of medical evidence the plaintiff tendered
the reports of Dr. Eksteen, Dr. le Nobel, and Dr. Armstrong, each of whom was
cross-examined extensively on behalf of the defendants.

[11]        
The evidence called on behalf of the defendants was comprised of the
testimony of the defendant, Mr. Sidhu.

The evidence and findings as to reliability and credibility

Melissa McKenzie, the plaintiff

[12]        
The plaintiff described that on July 18, 2008, just prior to the
accident, she was on her way home to Squamish travelling westbound on 96^th
Avenue at 195^th Street in Surrey, BC, approaching 192^nd
Street. She was travelling in the left most of the two westbound lanes. She was
driving her 2005 Pontiac Sunfire vehicle, which had a standard transmission. 
She was wearing her lap and shoulder seatbelt and the headrest was properly
adjusted. She recalled that it was rush hour on a Friday afternoon and there
was a high volume of traffic.

[13]        
The plaintiff said she was just passed the driveway to her right hand side
in “stop and go traffic.” She saw the tractor-trailer coming towards her from the
other direction, turning left toward the driveway, which, by that point, was
behind her. She saw the tractor-trailer inching forward like it was trying to
cut in through the traffic behind her. The plaintiff said she started to move
forward and then stopped again, at which point the tires of the trailer started
to come into her lane. She said that there was nowhere for her to move as there
was traffic in front of her and to her right. She said that she had slammed on
her brakes and had her left foot on the clutch so she would not stall. The
plaintiff said she used her horn, hoping the driver of the tractor-trailer
would hear it and look and see that she was there. She heard the tractor-trailer’s
airbrakes going on and off as the trailer’s tires were coming towards her. At
that point, she heard a “grinding, screeching noise” and then the rear glass
window of her vehicle exploded, bursting into her vehicle. She said the bottom
edge of the trailer was right behind her driver’s door and its tires were right
in front of her window. Then a person she came to know as Lisa Mohr came
running up to her vehicle, told her to turn it off, and to get out. The
plaintiff recalled that her legs were “slammed forward” and she had to crawl
out over the front passenger seat. Ms. Mohr called 9-1-1 for the plaintiff and
stayed with her.

[14]        
The plaintiff recalled that she felt “very, very shaky” after the
accident. A fire fighter who attended suggested that she take some photos of
the accident with a camera she had with her, and she did so. The photos are
Exhibit 6 and they show the scene of the accident as the plaintiff described it,
except when they were taken the tractor-trailer had already backed up several
feet after the impact. A firefighter moved her vehicle off the main
thoroughfare beyond the driveway, from which it was then towed.

[15]        
 The plaintiff was also shown Exhibit 4, which is a diagram of the area
of 96^th Ave. and 195^th Street, and Exhibit 5, which
purported to depict the scene of the accident and show the positions of her
vehicle and the tractor-trailer. The plaintiff agreed that the diagram in
Exhibit 5 showed her vehicle where she recalled it to be, but said that the tractor-trailer
was more towards the east than is depicted. The plaintiff said that the driver
of the tractor-trailer approached her after the accident and said to her that
he was sorry and did not look. After being checked by the firefighters and then
the ambulance attendants, the plaintiff decided that she would remain at the
scene and called her boyfriend, Mr. Ordano, to come to assist her.

[16]        
The plaintiff described her background in some detail, including her
involvement with horses, which started when her family moved to Squamish when
she was young. Her family became involved with raising and breeding horses in a
barn they built on their property. Over the years, they have kept between ten
and sixteen horses at any given time. They built an indoor riding ring and the
members of her family were involved in raising, training, caring for and
showing Quarter horses. The plaintiff is the eldest of five children. She was
fully involved in all physical activities related to the horses, including
doing barn chores that involved cleaning stalls, grooming and exercising
horses, and moving bags of grain and bales of hay that each weighed in the
range of 60 lbs. As a youth she was an excellent and accomplished rider, and had
represented BC twice at the World Show held in Fort Worth, Texas. She also
showed twice representing BC in the All American Quarter Horse Congress in
Ohio.

[17]        
In 2003 she injured her left ankle in a motor vehicle accident when she slammed
the brake pedal on it when trying to avoid a vehicle in front of her that had
suddenly braked. The plaintiff said her left ankle was initially very slow to
heal but by the end of 2005 to 2006 it had healed.

[18]        
In 2004, the plaintiff said that she stepped away from the horse
business and moved to Vancouver to attend Kwantlen University College (now
known as Kwantlen Polytechnic University) and take some criminology courses. She
moved to the Okanagan for a time between 2005 and 2006 to be with a boyfriend
who had become an RCMP officer. She then returned to Squamish in June 2006
after that relationship ended, and took up her usual routine of riding,
training and caring for horses at her family’s barn. Her ankle got better to
the point that she resumed running and did the Sun Run training in the winter
of 2006-2007.

[19]        
The plaintiff started showing horses again in 2007 and trucked several
horses to a show in Monroe, Washington. She described the rigours of loading,
hauling, caring for the horses, and competing in multi-day shows. That year, she
attended another show in Langley. The plaintiff said that she did everything on
her own for these shows and indicated that she did not suffer any difficulties,
pain, nor receive any injuries in preparing for the these shows or
participating in them. She met her present boyfriend, Mr. Ordano, in the summer
of 2007. He attended some horse shows with her. The plaintiff indicated at that
time she did not need Mr. Ordano’s help with any of the physical activities or
chores associated with hauling or showing horses.

[20]        
The plaintiff described how she had aspired to be an RCMP officer
because of her family’s association with the RCMP through her father who was a
justice of the peace in Squamish. In the spring of 2007 she decided to pursue a
career as an RCMP officer. She wrote and passed her written exam and booked her
PARE test. She needed to pass the PARE test before she attended the interview.
The PARE test may be described as a timed obstacle test involving challenging
tasks that require physical strength, endurance and speed. The plaintiff had
been training for the Sun Run over the winter of 2006-2007 and modified her
training to include elements of the PARE test. The plaintiff described her
training regime, which she did with a female friend.  At times Mr. Ordano
trained with her.

[21]        
When the plaintiff first took the PARE test in August 2007 she completed
it but not in the allocated time because during one of the exercises she “ended
up kinking her back.” It took a while for the right side of her back to settle.
She also experienced some swelling of her left ankle after the test, which would
swell periodically. She said when the swelling in her left ankle subsided it
was fine. In training for her re-test, she took extra care to not aggravate
these injuries.  She re-booked the PARE test for a date in November 2007, but
her grandmother, with whom she had been close, died several days prior to the
test date. She started the test but did not complete it. The plaintiff said she
planned to do the test again in the summer of 2008 to give her lots of time to
prepare. However the accident occurred prior to the plaintiff’s re-taking the
PARE test.

[22]        
Over the winter of 2007-2008 the plaintiff had become more involved with
various horses and she and her mother decided that the plaintiff would take a
horse to a trainer in Monroe, Washington, with a view to going back to the
“Worlds” as an amateur and showing again. During the spring of 2008, the
plaintiff was travelling frequently to Monroe to take lessons, usually on
Saturdays. She showed that horse in May and in July 2008 before the accident
and had a riding lesson the day before the accident. The horse was challenging to
ride but the plaintiff said she was up to the physical challenge. In the spring
of 2008, up to and after the accident the plaintiff was working part-time at
Starbucks in North Vancouver from eight to 20 hours a week.

[23]        
The night after the accident the plaintiff stayed at Mr. Ordano’s. She
said she felt very dizzy and “body sore” and like she had a rock in the area of
her left thigh; she described it as a very hard lump. She felt nauseous and
very out of sorts. She did not have a contact number for other staff at the
Starbucks and Mr. Ordano drove her to work for 4:45 a.m. because she was
feeling dizzy. He stayed with the plaintiff while she remained at Starbucks for
several hours until other staffing arrangements were made, at which time Mr.
Ordano drove her to the Park and Tilford Medical Clinic where she saw Dr.
Sutherland. It was a Saturday and she felt she needed to see a doctor, as
opposed to waiting to make an appointment with her family doctor in Squamish,
Dr. Eksteen. The plaintiff recalled that she spent ten minutes at most with Dr.
Sutherland. The plaintiff did not change into a gown and she said she felt
rushed. She said that she did tell Dr. Sutherland about the rock-like lump in
her left thigh but the doctor did not examine it, being more concerned about
her other symptoms. The plaintiff recalled that Mr. Ordano said they should
take some photos of the discolouration on her left leg (Exhibit 11), which they
did about 24 hours after the accident. These photographs are not of a good
quality but they do show bruising.

[24]        
The plaintiff said that she continued to feel this rock-like lump in her
left thigh for three to six days and then it started to release. She felt
soreness in her neck and the lower left side of her back, which was the
opposite side of her back where she had experienced pain after the PARE test in
August 2007. She also experienced pain that stayed in the area of her left hip.
The plaintiff said that the pain prevented her from sleeping, which was a significant
difficulty for her.

[25]        
The plaintiff went back to her work at Starbucks several days after the
accident. She was given light duties and not required to do any heavy lifting.
She would elevate and apply heat to her leg during her breaks. The plaintiff re-attended
at the Park and Tilford Medical Clinic on July 27, 2008, and saw Dr. Tichy. She
saw Dr. Eksteen, her family doctor, in Squamish on July 31, 2008. Thereafter,
and up to the date of the trial, the plaintiff went to many appointments with
doctors, specialists, and physiotherapists. Recently, she had been attending a
new physiotherapist recommended by Dr. Armstrong: Mr. Kotopski. The plaintiff filed
a list of the appointments she attended since the accident (Exhibit 12). She
also filed a number of notes from various doctors, including notes from Dr. Eksteen
that she should not drive a manual vehicle. The plaintiff found when she tried
to drive her vehicle with a manual transmission after it was fixed following
the accident that her left leg would spasm in the upper left side, causing her more
pain and a burning sensation. Therefore, she rented a vehicle with an automatic
transmission.

[26]        
The plaintiff described generally how the injuries she sustained in the
accident have affected her life’s activities, including work and her university
studies. In addition, her physical activities are significantly limited in
terms of riding, running and working out at the gym. She described how she
found it very difficult to sleep since the accident as her left side went numb
when she lay down. She said the discomfort, pain and lack of sleep, especially
right after the accident, made it very difficult to study and work. She
described an ongoing pain and irritation as a burning sensation in her left
leg. She said the fatigue she experiences makes it harder to get her work done
and it takes her a longer time to do work than a normal person. This results in
her having to take work home to complete in the evenings. She says at work she
has a good chair and she can get up and walk around. She said that she does not
make a “big stink” about her condition and only those close to her know about her
problem as she does not want it to interfere with her employment. She said that
she consistently changes shoes and often stretches. She said she was on
crutches for at least a month after the accident, which made it very hard for
her to get around at university. She felt her fatigue impacted negatively on
her exam performance. The plaintiff said that she has also tried to schedule
medical appointments to have the least impact on her employment as an insurance
adjuster.

[27]        
In terms of riding, the plaintiff said that Dr. Armstrong recommended in
the spring of 2011 that she could get on her “old tired horse” and just walk
her around and that is what she has been doing. She said that since the accident
she has not done any of the more aggressive or strenuous riding she did prior
to the accident. The plaintiff said that she has not taken the ten weeks off
work as recommended by Dr. Armstrong because of the salary she would lose from her
present employment.

[28]        
The plaintiff explained that she felt she recovered completely from the
2003 injury to her left ankle and that Dr. Eksteen and other caregivers were
impressed that she was able to return to rigorous physical training, including
the Sun Run training in 2005 and 2006. Since the accident the plaintiff
understands from her caregivers that she is not allowed to run and is only
permitted to ride a bike. Therefore, she is not able to train for the PARE test
or achieve the level of physical fitness required for police work, thus being
unable to pursue a career in policing.

[29]        
The plaintiff referred to information contained in Exhibit 17 regarding the
salaries earned by police officers in different police and law enforcement
agencies over years of service. This information from 2011 shows a range of
salaries for the RCMP with a starting salary of $48,104, an increase to $77,944
in the fourth year, to $86,636 in the tenth year, to $90,535 in the fifteenth
year and to $95,967 in the twentieth year. The material indicates opportunity
for overtime pay and benefits. There is a roughly similar progression of
salaries for police officers with other forces. Also included was information
as to the average hourly wages earned by insurance adjusters in Canada,
including an average hourly rate of pay of $26.24 in the Lower Mainland area of
BC.

[30]        
The plaintiff indicated that she graduated with a Bachelor of Arts in
Criminal Justice from the University of the Fraser Valley in June 2010. Had she
been able to successfully complete the PARE test in 2008 she would have
followed the process to gain entrance to the RCMP by being interviewed. As she
had already passed the written test the plaintiff had hoped to enter the RCMP
and successfully complete the basic training so as to start as a constable.

[31]        
The plaintiff was cross-examined extensively on her evidence. The
following points are of note:

·      
She was not shaken on her evidence that her vehicle was past the area
of the driveway on 96^th Avenue when the accident occurred. She
agreed that she had just started to move in the traffic. She agreed that she
slammed on her brakes when she saw the rear wheels of the trailer coming into
her lane. She disagreed that she could have moved to her right to avoid the
trailer. She also disagreed that there was no traffic in front of her at the
time she saw the trailer coming towards her, although after her vehicle had
been struck by the trailer she said all the traffic ahead left.

·      
She agreed that the damage to her vehicle from the accident was
limited to the left rear pillar and the broken rear window.

·      
When it was put to the plaintiff that she had described to Dr. le
Nobel that her vehicle may have been pushed sideways in the accident she said
that was what she told him at the time, but as the accident was three and a
half years prior to the trial she could not confirm that now.

·      
She admitted that the notes of Dr. Sutherland from the
appointment the day after the accident (within approximately 18 hours) refer
only to tenderness in the area of her left shoulder and neck. With regards to
Dr. Sutherland’s note “No abrasions/bruises, no swelling in feet” the plaintiff
indicated that she had her clothing on during the examination. When Dr.
Sutherland asked her if she had seen any bruises as of that time she told Dr.
Sutherland she had not (although elsewhere in her testimony I note that the
plaintiff confirmed that within a few hours of the accident she saw a bruise on
her left thigh, in addition to the rock-like lump). In her examination for
discovery evidence, which she adopted at trial as correct, the plaintiff said
that she was dizzy and shaking when she went to see Dr. Sutherland and at the
time it felt like there was a rock in her leg, “more like a block” than a pain,
and she described to Dr. Sutherland that it felt like she had a rock in her
upper (left) thigh, at which point Dr. Sutherland felt her thigh through her
pants.

·      
The plaintiff agreed when she attended the same clinic a week
later and saw Dr. Tichy. He noted that she had hurt her left leg and on
examination noted “tenderness lateral aspect mid thigh left” and then
“contusion?” The plaintiff said she was in a lot of discomfort and pain for
which she sought pain medication. She said “It was like the rock released and
that’s when it was starting to get really painful” but neither doctor would
give her any medication for pain without her seeing her family doctor, Dr.
Eksteen, in Squamish, which she did on July 31, 2008.

·      
The plaintiff stated that the rock-like feeling in her leg was
most prominent in the first five to seven days after the accident, such that
when she saw Dr. Eksteen he noted the day after the accident she had felt
stiff, dizzy, had aches and pains all over and that she had seen a doctor who diagnosed
her with a soft-tissue injury. He also noted she had been doing modified duties
at work and reported that “sitting was the worst thing”, making no mention of
the rock-hard lump. Dr. Eksteen did however note that the plaintiff mentioned
pain in her left hip and thigh that “felt like ants crawling or a burning
sensation”. She stated that this sensation was in the same area where she had
initially felt the rock-like lump.

·      
It is clear that the plaintiff worked shifts at Starbucks as a
barista after the accident that ranged in length from four to seven hours, but
she maintains that she was on modified duties for the first couple of months.
Her crutches were in the back part of the Starbucks outlet as she could not use
them in the front area where patrons were served. Her hours varied up to
approximately 25 hours a week. She became a shift supervisor there in 2008.

·      
The plaintiff also took on part-time clerical employment at a law
firm in the summer of 2008 after the accident. By the fall of 2008, she had two
part-time jobs and was attending classes at Fraser Valley University.

·      
She agreed that she kept a rental vehicle with an automatic
transmission for which she now seeks reimbursement from the defendants from
shortly after the accident in July 2008 until April 1, 2009 (to March 18, 2009
as per the invoices) upon the recommendation of Dr. Eksteen and a
physiotherapist that she not drive a vehicle with a standard transmission. She
was referred to two notes regarding the rental car from Dr. Eksteen, dated
November 14, 2008 and December 23, 2008 respectively, the latter which stated
“This patient should not drive a manual shift car until further notice.” Her
own vehicle was repaired after the accident by the end of July 2008. She had
the coverage for the rental vehicle extended to Washington State. She also had
Mr. Ordano added as an additional driver because at the time she was on
crutches and Mr. Ordano drove her to appointments and to classes. She agreed
she put significant mileage on the rental vehicles.

·      
The plaintiff agreed that she continued to work part-time at
Starbucks after the accident until February 2010. She worked three days a week
at a law firm from September 2008 until October 2009, and continued to take two
to four classes per semester towards her degree. In re-examination she said her
hours at Starbucks fluctuated from eight to twelve hours a week because of her
unavailability due to part-time work at the law firm. She attended university
part-time until she completed her degree. When asked about Dr. Eksteen’s notes
from an appointment on February 12, 2008 (pre-accident), to the effect that a
physical job was probably not a good option for the plaintiff in the long run,
she responded that she was probably briefing him on the first PARE test months earlier,
but that she did not recall discussing career options with him. Regarding Dr.
Eksteen’s reference to her being prone to chronic myofascial pain, she believed
him to be referring to her previous ankle injury that he was checking. The
reference to back spasms was also in relation to the first PARE test and she
considered that her physical problems had resolved by the time of the February
12, 2008 appointment.

·      
When it was put to the plaintiff that Dr. Armstrong, to whom she
had described the accident as the trailer causing “considerable compression to
the Pontiac” and breaking the back window, the plaintiff said she would have
told him that the trailer hit the side of her car.

·      
With reference to a note from a personal trainer who was
assisting her, dated May 29, 2009 (to the effect that the plaintiff had damaged
the heel of her boot by banging it while riding at a horse show) and whether
she was showing horses at this time, the plaintiff said that she took her older
horse to a show just to participate and just walked and jogged the horse
around, as she discussed with Dr. Eksteen. She said she did not “show” the
horse as she would have before, as she was unable to ride “heavily”. She said
that Dr. Eksteen told her it would be good for her morale to be around her “horseshow
buddies” again and to take a safe horse. She also explained a further note from
October 6, 2009, where on a Saturday ride she “got hammered in left foot” when
her horse brushed the side of the riding ring at home, such that her foot got stubbed.
The plaintiff explained that she was on her old, retired horse at the time.

·      
The plaintiff did not agree that her being accepted into training
as an RCMP officer was uncertain, although she agreed that many applicants do
not pass the written examination or the PARE test. She indicated previously
when she was considering working as a civilian member of the RCMP that she had
taken and passed the required psychological tests, but agreed she would have had
to take them again for regular member status. She also agreed there was no
guarantee that if she had become an RCMP officer she would have received the
promotions upon which projected salary increases were based, as contained in
the material she found on the Internet.

[32]        
The plaintiff was recalled on April 10, 2012, when the trial resumed and
provided brief additional evidence in further direct and cross-examination. She
filed updates to several exhibits, including an updated list of her
appointments with health care providers (increasing the number of visits from
116 to 127), some additional receipts for her special expense claim, and her
2011 T4 slip from her current employment indicating a total gross annual income
solely from her employment as an insurance adjuster of $47,633.58.

[33]        
In terms of her physical condition arising from the injuries she
suffered in the accident, the plaintiff indicated that, for the most part, it had
remained unchanged, with a period of heightened sensitivity in November and
December 2011. She advised that she has continued with physiotherapy with Mr.
Kotopski and she has made some progress in terms of her body being “very
straight” but the sensitivity in her legs has not changed very much. Her level
of horse riding had not changed in terms of intensity, but she had started deep
water aerobics with the approval of her caregivers as she was missing running
and cardio exercise. She said she has to be careful not to overdo the water
aerobics, which make her sore but have been good for her.

[34]        
In cross-examination the plaintiff indicated that her former employer
had been bought by another insurance company, Intact Insurance, and that her
salary remained unchanged since April 2011. She expected a salary review in the
next month or so and agreed that there were opportunities for advancement, but
indicated that they occur as a result of on the job training and experience.
When it was suggested to her that claims examiners and claims managers may make
between $70,000 and $100,000 per year, the plaintiff indicated that she did not
know and had not made recent inquiries. She admitted that a claims examiner
“maybe … could” make an annual salary in the range of $70,000.

[35]        
Regarding certain medical appointments the plaintiff agreed that she did
see the doctor for other reasons upon occasion, but when she sees Dr. Eksteen
the first thing he asks is how she is doing with her injuries from the
accident, and she normally sees him every six to eight weeks.

[36]        
In re-examination the plaintiff indicated when she saw Dr. Eksteen on
January 27, 2012, his notes referred to her water aerobics and when she saw him
on February 6, 2012, he noted she could do “higher intensity but lower impact
training” and she should continue with physiotherapy.

[37]        
Overall, I accept the testimony of the plaintiff. She was honest and
forthright about matters pertaining to her health before and after the
accident. Although perhaps a little self-focused and overly inclined to shift personal
responsibility to external events or forces (for example, her failure to
qualify for application to the RCMP, in terms of a timely completion of the
PARE test), I find that the plaintiff has established that she was injured in
the accident and that the injuries she sustained, particularly those to her
left thigh and hip, have caused her considerable discomfort and pain since the
accident. Her other soft tissue injuries appear to have resolved within several
months of the accident, but the difficulties with her left hip and thigh have
continued. Although the pain and discomfort have subsided and become
intermittent, her physical strength and confidence have been significantly
undermined by chronic pain emanating from the area in her left hip and thigh
injured in the accident. Specifically, I accept that she can no longer ride
horses at the intensity usual for her and that she can no longer engage in the other
forms of rigorous physical activities that she used to enjoy, like running or
participating in heavy work at the horse barn. Although her evidence as to her
very limited return to horseback riding since the accident conflicts with that
of Mr. Ordano, I find that I prefer her evidence. I accept her evidence as to
the medical assistance and treatments she has sought out to assist her in
relation to her injuries and to aid in her recovery, although it is clear that
not every appointment with Dr. Eksteen related only to her recovery from
injuries sustained in the accident.

[38]        
Further, it is clear that the plaintiff has diligently followed the
advice she has been given by the doctors and physiotherapists she has seen and
has checked with them before engaging in activities that might slow her
recovery or aggravate her condition. It is simply not plausible that a woman
who is as diligent and motivated a worker as the plaintiff would choose to
malinger and exaggerate the extent of her injuries or the discomfort and pain
she describes, for the privilege of attending countless medical and physiotherapy
appointments and receiving the injections given by Dr. Armstrong into the
afflicted areas of her left hip and thigh.

Christopher Ordano, the plaintiff’s boyfriend

[39]        
Mr. Ordano, age 29 at the time he testified, is the plaintiff’s
boyfriend. He works in the construction industry as a project manager. He first
met the plaintiff in August 2007. At the time he met her she was training to
take the PARE test as she was seeking employment as an RCMP officer. He went
with her for some training sessions, was present when she trained on the course
and also when she took the PARE test. He trained with her, running laps and
climbing stairs. Mr. Ordano said while she was training, she was at a higher
level in terms of physical ability than he was.

[40]        
Mr. Ordano said that he and the plaintiff share an interest in horses.
When they first started dating, Mr. Ordano described going with the plaintiff
to a horse show in Langley and one in Monroe, Washington on the Labour Day
weekend in 2007. He described the long and very strenuous days that the
plaintiff would typically put in: loading, hauling, caring for the horses she
took to the show; riding in four to six events a day; mucking out stalls; and
exercising and cooling the horses. He said that she did not require his help to
do these things. Mr. Ordano also has visited her parents’ property in Squamish
where her family keeps their horses. He has seen her perform all the tasks
around the barn. Prior to the accident he did not see her encounter physical
difficulties in doing these tasks.

[41]        
Mr. Ordano also said that prior to the accident he and the plaintiff
liked to do physical activities outside, including hiking, running, and ATV
riding.

[42]        
On the day of the accident Mr. Ordano recalled receiving a call from the
plaintiff just after it occurred. He said she sounded very shaken up on the
telephone and was initially unable to tell him what had happened. He went to
pick her up in the parking lot adjacent to where the accident occurred. By the
time he attended, her vehicle had been moved to the parking lot. He had given her
the vehicle as a gift and it had a standard transmission. That evening he said
he noticed that the plaintiff continued to be very shaken up. They went to his
place in North Vancouver and she slept there. The next morning he saw that some
bruising had started on her thigh. He took two photographs of the bruises on
her thigh with his cell phone (Exhibit 11), which he admitted were not of the
best quality. He described the bruise he saw to have “a little bit larger surface
area than a normal small impact type bruise” and as it developed it seemed to
have “kind of more of a hard consistency to it.” That same day he went with the
plaintiff to the Park and Tilford Medical Clinic.

[43]        
After the accident, Mr. Ordano said he definitely noted that the
plaintiff experienced emotional changes. He said she experienced a lot of
frustration at not being able to do certain things. He also observed that she had
anxiety when near tractor-trailers or other large vehicles on the highway. He
said that her driving habits changed and she became ill at ease when driving
with others. He also noticed that she did a lot of grimacing with pain and
showed a definite favouritism to her left leg. She has shown a real avoidance
of any sort of activities that could cause an impact with that area of her leg.
Her involvement with horses has suffered and that is the area of her life that
has been affected the most. He indicated that the plaintiff does not compete in
horse shows since the accident and her involvement in the care of the horses at
her family’s place is diminished. Others in her family, and upon occasion Mr.
Ordano, have had to assume her prior duties at the barn. She still does chores
but she is limited to doing much less and to not moving or lifting heavy
objects. They do not go riding ATVs any more. When they go on her family’s
annual vacation to Disney World, Mr. Ordano noted that the plaintiff avoids
certain rides that might cause an impact. In sum, Mr. Ordando said that since
the accident she avoids physical activities that could cause damage to her left
leg or require her to use it more.

[44]        
Mr. Ordando said he has accompanied the plaintiff on multiple visits to
doctors, physiotherapists, and others involved in her treatment, but certainly
not to all of them. In his view she has followed the advice she has been given,
has been open in her discussions with doctors about what activities she may
resume and her desire to get back to her pre-accident level of activity. Mr.
Ordano indicated that in the year prior to the accident and since the accident
he was not aware of the plaintiff having any illnesses or experiencing any
further or other injuries to the areas of her body affected by the accident.

[45]        
Mr. Ordano was cross-examined at great length. Points of note arising in
cross-examination include the following:

·      
Mr. Ordano was present on both occasions when the plaintiff
failed the PARE test. Despite this, he considered her pre-accident goal of
passing the test to be very attainable. It was his view that her legs, being
shorter than the legs of a male, made it harder for her to complete the test in
the allocated time. He indicated that she did not suffer any injuries while
doing the tests, but she did appear to become overly anxious about the test.

·      
He confirmed that he saw the bruise on the plaintiff’s left thigh
the day after the accident before he went with her to the medical clinic.

·      
Mr. Ordano indicated that to his knowledge the plaintiff had not
ridden horses at all since the accident. He recalled that when he had attended
medical appointments with the plaintiff the focus of the conversation regarding
riding was whether she was in a condition to ride, rather than “any occurrence
of riding”. He also indicated that she may have been on a horse since the
accident when he was not present.

·      
He indicated that he attended her family’s place in Squamish
several times a week and that the plaintiff’s involvement with the care of the
horses is definitely reduced since the accident. She does some of the lighter
chores but the heavier physical jobs fall to others, including him. He
indicated that she does not show her younger horse that she was training prior
to the accident although she still has it. She has three horses and shares
responsibility for their care and the other horses at the family’s barn with
other family members. He said, since the accident, the plaintiff has been
unable to move full bales of hay or bags of grain.

·      
Mr. Ordano indicated that after the accident the plaintiff had a
limp and that she has had problems with her left leg up to the current time in
terms of a slight limp or experiencing pain in that leg. He indicated that the
activities they do together since the accident are more sedentary and if they
go to see a movie the plaintiff will sometimes complain about the pain when she
has been sitting too long. At times after the accident he drove her to her
classes, in part because she was having nagging pains in her leg or was
experiencing fatigue, and in part for security considerations associated with
night classes. He also indicated that the plaintiff had gone with her family on
their yearly trips to Disney World since the accident.  On those trips she
preferred the more leisurely activities as opposed to the higher-impact rides
because of potential impact on her leg.

·      
With regards to the plaintiff’s rental of an automatic vehicle
after the accident Mr. Ordano indicated that at times he drove it to assist the
plaintiff in getting around and this included going to the U.S. upon occasion
for shopping or other reasons.

[46]        
The evidence of Mr. Ordano is confirmatory of the evidence of the
plaintiff as to her physical health and strength prior to and after the accident.
He had a somewhat odd way of answering some questions. Either he usually
expresses himself in a somewhat stilted and apparently contrived manner, or he
was doing so in court for the purpose of enhancing the plaintiff’s claim.
Regardless, except as to his denial of the plaintiff doing any horseback riding
at all, I accept the rest of his evidence as to the physical activities the
plaintiff pursued before and after the accident. I find compelling his
observations about the overall reduction in the plaintiff’s level of physical
activity, her strength since the accident, her limping at times and the
favouritism she shows her left leg, as well as her fear of further injury to it
from certain kinds of activities. It is also clear from his testimony that her
mental outlook has been negatively affected by the pain from the injuries she
sustained in the accident.

Sarah Moore, the plaintiff’s friend and former co-worker

[47]        
Ms. Moore is a friend of the plaintiff’s from the insurance company
where they both used to work and where the plaintiff continues to work. She met
the plaintiff in February 2010, when the plaintiff started as a junior
adjuster. Ms. Moore and the plaintiff worked together for about a year and a
quarter until Ms. Moore left in May 2011. She continues to see the plaintiff as
her new work location is nearby. Ms. Moore indicated that when she first met
the plaintiff she would ask her if she wanted to work out or go running and the
plaintiff would always tell her that she could not because of an injury and
based on doctor’s orders. Ms. Moore said she did not know the extent of the
plaintiff’s injury but she “did see her rubbing her leg and her thigh and stuff
like that, quite a bit in the office.” Ms. Moore said that at the insurance
company all the employees were set up with ergonomic chairs and desks. She
observed that the plaintiff worked really long hours as she had a high file load
that required her to put in early mornings and late evenings. The plaintiff was
required to sit at her desk all day on the phone, but she could get up for half
a minute periodically. When asked if the plaintiff was the type of person who
was frequently off sick, Ms. Moore responded, “I don’t think Melissa has ever
taken a sick day. She will come in to the office with no voice, she’s been sent
home sick, but even when she’s sent home she’ll still bring files with her.
She’s just dedicated to her job in that way.” Since Ms. Moore moved to work at
a different insurance agency she said that she and the plaintiff get together
about once every two weeks. They occasionally go shopping but most of the time
it’s a sit-down coffee. Ms. Moore indicated that she continues to go running
but she has been unable to persuade the plaintiff to join her.

[48]        
In cross-examination Ms. Moore confirmed that there were no special
accommodations at work specifically for the plaintiff, as opposed to what all
the employees had. She also indicated that the telephone that the plaintiff
used was a wireless headset and agreed that she could stand up and stretch
during a phone call. Ms. Moore confirmed that the plaintiff worked ten to
twelve hour days. She also indicated that the plaintiff did not want to
exercise unless she ran it past her doctor first and the plaintiff was doing
exercises through physiotherapy. Sometimes they would go out together for
drinks after work. Ms. Moore also indicated that the plaintiff indicated that
she used to ride horses and could not do that anymore. When she and the
plaintiff went shopping they usually went to Bellingham or Coquitlam and they
would take turns driving. However, she said that they did not spend long hours
shopping and they usually went with a purpose. Ms. Moore agreed that on these
occasions she did not see the plaintiff showing any sign of disability or
physical problems.

[49]        
Ms. Moore impressed the Court as a truthful and reliable witness who,
other than being a casual friend of the plaintiff’s, had no connection to the
present litigation and no motive to exaggerate the impact of the plaintiff’s
injuries from the accident. Her evidence shows the commitment of the plaintiff
to her work, the degree to which she was inclined to follow the directions of health
care providers and the plaintiff’s stoical approach to her daily work in the
context of the pain she was experiencing from her injuries.

Lisa Mohr, a witness to the accident

[50]        
Ms. Mohr witnessed the accident. She worked in the immediate vicinity of
where it occurred. She was leaving the area adjacent to the driveway into which
the defendant Sidhu was endeavouring to turn his tractor-trailer. Ms. Mohr was
in her vehicle, which was stopped and facing south, waiting to make a left turn
on to 96^th Avenue. She was very familiar with that driveway as she
had worked at that location for eight years. That day she recalled that the
traffic was very heavy and at a standstill. It was her habit to wait patiently
until it was clear on both sides to make her left turn onto 96^th
Avenue to travel eastbound. Her vehicle was first at the top of the driveway
waiting to turn left.

[51]        
Ms. Mohr observed that the tractor-trailer was waiting to turn left in
the left lane of the two eastbound lanes on 96^th Avenue. To her left
Ms. Mohr saw the tractor-trailer start to move up and turn left in the driveway
where she was stopped. She saw him pulling forward and “right away [she] heard
a very loud popping noise.” She turned her head to the right as the noise came
from that direction and she saw that the rear window of the plaintiff’s vehicle
was smashed out. At that point the tractor-trailer was still moving and Ms.
Mohr thought that it was going to drive right over the plaintiff’s vehicle.
Then she saw the tractor-trailer make a sudden stop such that it “jolted quite
a bit”. She said that the vehicle that was struck was stopped so that its rear
was to the west of the driveway. When Ms. Mohr was shown the diagram (Exhibit
5) she agreed that the rear of the plaintiff’s vehicle as depicted was exactly
where she saw it.

[52]        
After the collision Ms. Mohr pulled her vehicle out onto 96^th
Avenue right beside the plaintiff’s vehicle. Ms. Mohr then pulled her vehicle
in front of the plaintiff’s and approached the plaintiff’s vehicle. Ms. Mohr
recalled when she first looked into the plaintiff’s vehicle to ask her to roll
down her window that the plaintiff looked shocked and panicked. Ms. Mohr opened
the front passenger side door and the plaintiff came across the front seat and
out of her vehicle via the passenger seat. When Ms. Mohr helped the plaintiff
across the street she saw that the plaintiff was visibly shaking. Ms. Mohr
called 9-1-1 and waited with the plaintiff until emergency personnel arrived.

[53]        
On cross-examination, Ms. Mohr indicated that prior to the collision she
recalled there were two trucks stopped in the westbound lanes to the east of
the driveway. She agreed that they were as shown in Exhibit 5, except they may
have been a bit closer to the driveway. She agreed that when she first observed
the scene there was traffic ahead of the vehicles stopped in the westbound
lane, including ahead of the plaintiff’s vehicle in the westbound lane closest
to the center line. Ms. Mohr did not see the plaintiff’s vehicle move at all
prior to being struck. She reiterated that traffic westbound was at a
standstill. She indicated that during the time when she heard the noise and
looked over and saw the tractor-trailer make its shuddering stop, she could
only guess that the rest of the traffic started to move because she was able to
pull up beside the plaintiff’s vehicle. Ms. Mohr confirmed that she was
watching where the driver of the tractor-trailer was going as he was pulling
into his left turn because he was going to turn in right next to her vehicle
sitting at the mouth of the driveway. With regards to the plaintiff’s demeanour
while they waited together for 20 minutes to half an hour for the firefighters
to arrive, Ms. Mohr noted that the plaintiff was visibly shaken, a little bit
incoherent, and was stuttering.

[54]        
Ms. Mohr impressed the Court as a reliable and very credible witness in
terms of exactly how the accident occurred. She was truly an independent
bystander and demonstrated good observational abilities. She was paying
attention to the movements of the tractor-trailer driven by the defendant Sidhu
as he was commencing his left turn directly in front of her, with the goal of manoeuvring
his very large rig into the mouth of the driveway directly next to her vehicle.
I accept the evidence of Ms. Mohr as to how the accident occurred, the location
of the vehicles involved and the state of the plaintiff after the accident.

The plaintiff’s read-ins from the examination for discovery of Rajinder
Dhillon on behalf of the defendant Safeco Trucklines Ltd.

[55]        
Mr. Dhillon, a partner and part owner of the defendant Safeco Trucklines
Ltd., attended for examination for discovery on November 4, 2011. Mr. Dhillon
said he was called by Mr. Sidhu after the accident and he went to the scene
where he saw that “a truck had made a turn into the back side of the car and
the trailer had hit the mirror of the car, the back side, rear mirror.” Then he
agreed that the trailer had hit the back-left post area of the car. At the
scene Mr. Dhillon agreed that the tractor-trailer was still partway through its
turn, sitting on the street and the plaintiff’s vehicle was sitting there also.
When shown the drawing of the scene that became Exhibit 4 at trial, Mr. Dhillon
agreed that it depicted the scene of the accident reasonably accurately. With
regards to the drawing that is Exhibit 5, Mr. Dhillon indicated that the
contact between the plaintiff’s vehicle and the trailer was “a little bit
behind the rear — the front wheels, front axle” of the trailer.

[56]        
Mr. Dhillon agreed that the weight of the tractor unit was 7,892 kg. He
also produced the insurance and registration documents for the tractor unit
owned by Safeco Trucklines Ltd., although he indicated that Mr. Sidhu owned the
tractor unit. Mr. Dhillon said the defendant Safeco Trucklines Ltd. owned the
trailer, which weighed 13,400 lbs. empty. The tractor and the trailer, loaded,
together weighed under the legal limit of 80,000 lbs. and the maximum load on
the trailer was 45,000 lbs.

[57]        
I accept the evidence of Mr. Dhillon as read in.

The plaintiff’s read-ins from the examination for discovery of the defendant
Sidhu

[58]        
From the read-ins from his examination for discovery on January 25,
2011, Mr. Sidhu testified that he was the owner/operator of the tractor unit
that was hauling a trailer belonging to the defendant Safeco Trucklines Ltd. He
was travelling eastbound on 96^th Avenue, waiting to make a left turn
into a driveway to unload some goods. He recalled that the accident occurred between
3:30 p.m. and 4:00 p.m. Mr. Sidhu agreed that the vehicle he struck was stopped
in a line of traffic westbound stopped beside him. He moved to turn in a break
in the traffic as the westbound traffic started to move. He said he moved
slowly and that he had to watch the oncoming traffic and people walking on the
pathway. He also said he was watching the two trucks stopped in the two
westbound lanes before the driveway he was about to turn into. Mr. Sidhu said
that he had to be focused all around himself; first he noted the cars to his
left (proceeding westbound) were travelling; and then he saw that the trucks
(proceeding eastbound) had stopped for him. Then he started his turn, looking
again to his left and to the front and then to his right for the trailer. He
saw that he had lost his view of the plaintiff’s vehicle in his mirror so he
leaned forward and looked out the window and saw that the plaintiff’s vehicle
was stopped, whereas he said when he started to move it had started to move.
When it was put to him that he did not see the plaintiff’s vehicle when it
stopped, Mr. Sidhu stated “When I lost the view from my mirror, so because I
have to be focused on this side and this side as well, and when I glanced at
this, at that time it stopped”, at which point Mr. Sidhu said he also stopped.
He agreed that he lost view of the plaintiff’s vehicle and the vehicles in
front of it in his left rear-view mirror because of the angle of his tractor as
he turned left. When he lost the view from his smaller mirror Mr. Sidhu said
that he had to stick his head out of the window to see. He agreed that when he
stuck his head out of the window to look, the plaintiff’s vehicle had stopped
and the collision had already occurred.  He also agreed that as far as he knew
the plaintiff’s vehicle was stopped at the time the trailer struck it. He
agreed that he did not see her vehicle immediately before the collision and
that there was nothing she could have done to avoid the collision as her vehicle
was stopped and his trailer ran into her.

[59]        
Mr. Sidhu agreed that when he got out and looked after the collision, he
saw that the bottom part of the left side of his trailer had hit the area of
the rear driver’s side of the plaintiff’s vehicle, and included in the damage
to her car was that the back window had been smashed out. Mr. Sidhu agreed that
the plaintiff’s vehicle was stopped near the intersection with the driveway.
Mr. Sidhu denied hearing any honking of the horn. He agreed that he told the
plaintiff that he was sorry about causing the accident. Mr. Sidhu said that the
trailer was 53 feet long and its weight empty was 8,500 kg, but he had at least
a portion of a load on.

[60]        
At a further examination for discovery on November 4, 2011, Mr. Sidhu
was shown a drawing of the scene that showed the tractor-trailer commencing its
left turn into the driveway. Mr. Sidhu indicated that the tractor unit would
have been positioned much closer to the east side of the driveway and the
trailer also was more accurately further to the east to align with the tractor.
Mr. Sidhu agreed that the point of impact between the trailer and the
plaintiff’s vehicle was just in front of the forward set of the rear trailer
wheels and tires. He agreed that when he started his turn he considered that he
had enough room to make the turn safely.

Jaspal S. Sidhu, the defendant and driver of the tractor-trailer

[61]        
At trial the defendant Sidhu testified with the assistance of a
Punjabi-speaking interpreter. He has had his Class 1 driver’s licence in BC
since 1999. He recalled that the accident occurred when he attempted to turn
left off 96^th Avenue into a commercial driveway having previously been
travelling eastbound. He described the traffic westbound as “very heavy, bumper
to bumper.” He indicated that he came to a full stop before beginning his turn.
Mr. Sidhu marked on Exhibit 5 where his tractor-trailer was stopped and where
the two westbound trucks, one in each of the westbound lanes, had stopped just
before the entry to the driveway in line with the gate. Mr. Sidhu placed the tractor-trailer
and the plaintiff’s vehicle significantly more towards the eastern edge of the
driveway. Mr. Sidhu waited to commence his left turn until the traffic
proceeding westbound that included the plaintiff’s vehicle started to move
ahead. At that time he said his tractor-trailer was still stopped. He testified
that when he saw that the plaintiff’s vehicle had “moved quite ahead, like
close to the trailer and [he] thought he should start moving.” Then as he
started the turn Mr. Sidhu said he was not able to see her vehicle as the truck
turned a little more. He tried to look through both his big and small mirrors
and he did not see her vehicle. Somewhat inconsistently, he then stated that when
he “put [his] face out through the window” he saw that “[his] truck was almost
hurting her car” and he stopped his truck right away. After the tractor-trailer
had come into contact with the plaintiff’s vehicle he moved it back a few feet.

[62]        
On cross-examination Mr. Sidhu agreed that before he started his left
turn he saw the plaintiff’s vehicle and the other vehicles stopped immediately
in front of it. The westbound traffic was starting and stopping, bumper to
bumper. Mr. Sidhu recalled that he had waited five to seven minutes, maybe
longer, to make his left turn. He agreed that he waited until he was satisfied
that the driveway was completely clear so he could make his turn. As to where
the plaintiff’s vehicle was when he commenced his turn Mr. Sidhu stated “…it
was just parallel to me and when it moved just through the middle of the
trailer at that time I started my turn.” He agreed that before he started his
turn he considered he had a wide enough opening in which to make his turn, and
that the plaintiff’s vehicle was moving at the same time he was moving. He
agreed that he did not see the plaintiff’s vehicle change from moving to
stopped as he could not see it in his mirror. When it was put to Mr. Sidhu that
he thought because the traffic had started to move that the opening would
become large enough to turn in, he responded “maybe.” He further agreed that he
started his turn because he thought the westbound traffic was going to keep
moving. He agreed based on his drawings on Exhibit 5 that he placed the tractor-trailer
more to the east, such that its cab was in line with the driveway and the left
side of the trailer came into contact with the left rear side of the plaintiff’s
vehicle. Then, after a portion of his examination for discovery was put to him,
Mr. Sidhu indicated that “maybe” the plaintiff’s vehicle was located where it
was initially depicted in the diagram in Exhibit 5. After striking her vehicle
Mr. Sidhu indicated that he backed up about two feet. He also agreed that
because he could not see the plaintiff’s vehicle in his mirror, he did not know
where it was just prior to when the trailer struck it; the only way he could
have seen it was if he had turned around and looked out his side window, as
opposed to relying on his mirror.

[63]        
Insofar as Mr. Sidhu’s evidence at trial is in conflict with his earlier
evidence at the examination for discovery, I accept the former, but I do not
regard the inconsistencies as to when exactly the plaintiff may have started to
move her vehicle in the line of traffic or when she may have stopped to be of
any real consequence. The fact is that the defendant Sidhu, in choosing to make
a left turn with such a large vehicle across two lanes of traffic on a very
busy thoroughfare into the very defined space of the mouth of a driveway (that
was particularly tight given the presence of Ms. Mohr’s vehicle) was negligent
insofar as he failed to discharge this difficult turn without striking the plaintiff’s
vehicle as described. To the extent he lost view of her vehicle, it was his
obligation to do whatever was necessary to check whether the plaintiff’s
vehicle at the end of the line of traffic had moved off sufficiently so as to
permit both the tractor and the long trailer attached to it to safely make the
turn. I find that the traffic had started to move and Mr. Sidhu assumed that it
would continue to move and had moved sufficiently to give him the space to
turn. He was negligent in failing to ensure that the line of traffic continued
to move, which he could have done by keeping a sufficiently vigilant lookout as
he commenced the left turn. The defendant Sidhu’s evidence at trial as to where
the tractor-trailer was in relation to the plaintiff’s vehicle is at odds with
his discovery evidence and the evidence of other witnesses. I find he is
mistaken that the tractor-trailer was more to the east prior to commencing its
turn as he indicated at trial. To put the tractor-trailer where Mr. Sidhu put it
would have had him commencing his turn into the driveway at an even more extreme
angle, which would have made him even more likely to strike the plaintiff’s
vehicle with the trailer at the location where he places it. Where the evidence
of the defendant Sidhu as to how the accident occurred conflicts with the
plaintiff’s or Ms. Mohr’s, I find that I accept their evidence over his.

Dr. Ben Eksteen, the plaintiff’s family doctor

[64]        
Dr. Eksteen was qualified to provide expert opinion evidence as a
practitioner specializing in family medicine. He works in family medicine,
emergency medicine and providing anesthesia in Squamish. He has been the
plaintiff’s family doctor up to the date of the trial and for years prior to
the accident.

[65]        
In his report, dated May 19, 2011, Dr. Eksteen stated the following
regarding his diagnosis of the plaintiff:

The highest level of clinical diagnosis
at this point is persistent pain from the left lower back to the left lateral
thigh including the left hip area. The pain has mixed features of neuropathic
pain and soft tissue pain.

In terms of subjective complaints, Miss
McKenzie is still having discomfort in her left lower back to her left lateral
thigh, about 3/4 of the way down her thigh. Her pain has been
intermittent; she has difficulty lying on that side and it is sore to deeper
pressure.  At times, she has a burning, tingling sensation. Her balance is also
affected with certain movements or postures as a result of pain and possibly
weakness of the left thigh and hip.

In terms of current, objective findings,
Miss McKenzie has tenderness to deeper palpation in the above-noted
distribution from the left lower back right down to the lateral thigh.
Tenderness starts in the area of the superior buttock on the left. She has
decreased range of motion of the left hip, especially forward flexion. She is
limited by discomfort. She does describe a popping sensation with movement in
an anterior direction of left. She gets occasional spasming [sic] of the left
lateral thigh as well as at times, since the accident she has had problems
sleeping secondary to discomfort in the left hip, buttock, thigh.

The characteristics of her clinical
picture have been fairly similar since the date of injury, although there has
been very gradual improvement. The discomfort is now somewhat less severe, and
more intermittent. Currently, there are no other
diagnoses or areas affected pertaining to the motor vehicle accident in
question.

[Emphasis
added.]

[66]        
Dr. Eksteen stated his prognosis as follows:

I remain positive about Miss McKenzie’s long
term prognosis in terms of a full recovery, although nobody can predict the
course of such clinical scenarios of persistent pain. It will also depend
somewhat on upcoming opinions from the pain clinic and an orthopaedic surgical
appointment. It is promising that she’s had gradual improvement of her
symptoms, even though it has been slow. Because of gradual improvement and
involvement of her condition, I cannot at this point state that there is any
permanency of her current condition. It is impossible to say when a full
recovery will occur.

Miss McKenzie’s activities of daily living,
recreational, social, house and yard work activities are still all affected in
various degrees. Activities of daily living are affected by pressure on the
area in question. For example, she has difficulty and sometimes discomfort with
sleeping on her left side to the point where she is avoiding sleeping on her left
side. Her house and yard work are affected in terms of movement and also
balance to a degree. She has difficulty with heavier house and yard work, for
example, lifting heavier objects from the floor or ground level, and
intermittent problems with twisting while weight bearing and carrying
something.

Her recreational and social activities are
also still affected. She used to be an avid and keen runner, having
completed longer distance races before this accident. She has been limited
in her ability to run and is currently on a two minute run, two minute walk
program. She has been an avid horseback rider all her life and this has been
affected greatly with discomfort and weakness which is persistent with riding,
especially with more challenging horses.

[Emphasis added.]

[67]        
In his report Dr. Eksteen stated that the plaintiff’s walk/run program
was recommended by himself and Dr. le Nobel, and prior to this she had hardly
done any running since the accident. He also stated that her horseback riding
has been limited in frequency and intensity. In both these recreational
activities Dr. Eksteen indicated that the plaintiff had been limited by
discomfort in the left buttock, hip and thigh region and also partly by
caregiver instruction. He reported that the plaintiff was able to perform basic
household chores, light cleaning and light yard work, but that she experiences
some discomfort or “twinging” in the area of her left hip if she does heavier
lifting or pivoting using her left thigh and hip. At the time of his report the
plaintiff was not on any medications, although he had administered and she had
benefited from medications at times, and may again require medication if her
condition worsens. This may include medication used for neuropathic pain,
likely pregabalin once to twice daily, and over-the-counter anti-inflammatory
medications like Ibuprofen as needed. He indicated that the plaintiff will
benefit from ongoing physiotherapy, guidance and treatment as “she is quite
compliant with rehabilitation.” He also recommended the occasional guidance of
a kinesiologist or personal trainer for a program of further strengthening and
more aggressive rehabilitation. He recommended both for a period of six to nine
months. Finally, Dr. Eksteen indicated that the plaintiff was awaiting an
appointment at the pain clinic at St. Paul’s Hospital and further assessment by
an orthopedic surgeon.

[68]        
A number of matters were raised with Dr. Eksteen on cross-examination,
which included reference to entries regarding the plaintiff in his clinical
notes from April 19, 2007 to February 26, 2009. The following points from his
cross-examination are of note:

·      
As of June 22, 2007, well prior to the accident, Dr. Eksteen had
been monitoring the plaintiff’s left ankle which had been injured in April
2003, and for which he had referred her to Dr. le Nobel.

·      
During an appointment with the plaintiff on February 12, 2008,
Dr. Eksteen noted that the plaintiff reported she had failed the PARE test for
RCMP training, and that she had “quite a bit of spasms in her back, and [her
left] ankle flared as well after the test.” She reported to him that she had
seen a physiotherapist who suggested that she might want to back off such
activities, and Dr. Eksteen noted “It is probably not a good option for her
long term”, referring to qualifying to become an RCMP officer. He further
noted, “She understands this and is probably looking at an alternative career
option. Although she would like to do the PARE test once more just to say that
she can do it.” Regarding this comment, Dr. Eksteen indicated that he was
probably just repeating the physiotherapist’s view as related to him by the
plaintiff, and thus it was still subjective reporting by the plaintiff and not
his conclusion. However, he agreed that his medical assessment at that time
indicated that the plaintiff was “prone to chronic myofascial pain” and she
seemed to have had a flare up of ankle problems and back spasms.

·      
Dr. Eksteen confirmed that during his first appointment with the
plaintiff after the accident, on July 31, 2008, she reported to him that she
was travelling in a car and was hit by a tractor-trailer that caused her car
window to shatter. The accident resulted in her being quite shocked. She
reported that she did not experience much by way of symptoms at first, but the
next day she felt stiff, dizzy and had aches and pains all over. She saw a
doctor the day after the accident and had been diagnosed with a soft tissue
injury. The plaintiff also reported that she had modified duties at work at
Starbucks. She reported that sitting was the worst thing for her and that she
had pain in her left hip and lateral and anterior left thigh, at times
experiencing that “It felt like ants crawling or a burning sensation.” He found
her sensation in that area to be normal. He agreed he had noted that the
plaintiff had “Quite a bit of tenderness in the lateral anterior thigh.” He
noted that her straight leg-raising test was to 45 degrees on the left and to
60 degrees on the right, and that it could have been limited in the left leg by
discomfort in her leg or lower back. He also agreed that had he observed a
rock-like lump in the muscle of her left thigh he would have noted such a
finding and he did not.

·      
In her August 21, 2008 visit, Dr. Eksteen noted, based on what
the plaintiff reported, that she had “ongoing pain in her left hip, slight
improvement, still sore, mostly with external rotation. Seeing physio. Didn’t
find Celebrex of much help. Starting to take Lyrica and sleeping a bit better.”
In terms of his findings, Dr. Eksteen noted “Little tender, lateral aspect of
left hip and left upper buttock area,” a finding he agreed had subjective and
objective components.

·      
Dr. Eksteen was asked to review the findings of Dr. Sutherland at
the Park and Tilford Medical Clinic from the plaintiff’s attendance on July 19,
2008 (the day after the accident), which he did. He agreed, based on Dr.
Sutherland’s findings that a diagnosis of a grade two whiplash sounded “about
right.” He also agreed that there was no mention in Dr. Sutherland’s objective
findings of any specific tenderness in the left thigh or a rock-like lump. Dr.
Eksteen agreed that in a subsequent examination of the plaintiff at the same
clinic a week later on July 27, 2008 by Dr. Tichy, it was noted that the
plaintiff had tenderness in the lateral aspect of her left mid thigh. While the
doctor’s notes referred to the possibility of a contusion in the lateral aspect
of the same thigh, Dr. Eksteen agreed there was no mention of a rock-like lump.

·      
Dr. Eksteen noted regarding a visit with the plaintiff on
September 30, 2008 that she was “Gradually improving, still attending physio.
Still has discomfort, pain in the left lower back and into the left hip. Pain
into the thigh has now subsided quite significantly.” With regards to the pain
into her thigh having subsided, Dr. Eksteen indicated that must have been what
she reported at the time. He also noted during this visit that the plaintiff
was still driving an automatic vehicle and that she “will have difficulty with
manual car in terms of repetitive movement of her left leg. Also finds it hard
to do a shoulder check with her left leg extended.” Also regarding this visit
Dr. Eksteen noted that with guidance from kinesiology the plaintiff could
return to work, which he indicated could have meant return to full-time work in
full capacity, or that she had not been at work at all. He agreed that he
thought that the plaintiff was not working since the accident as she had prior
to it.

·      
Dr. Eksteen agreed that he referred the plaintiff to Dr. Dean
Johnston, a neurologist in October 2010. His view of Dr. Johnston’s report was
that it ruled out certain neurological pathologies, but not neuropathic pain.

·      
Dr. Eksteen referred in his notes from visits on November 13,
2008 and December 23, 2008 when the plaintiff reported that she had received
injections from Dr. le Nobel in her hip and back respectively. On December 23
she reported she had discomfort in the area of her left thigh and hip, and
after Dr. le Nobel injected her back it had improved. As well, Dr. le Nobel
recommended that she not drive a standard vehicle. Dr. Eksteen gave the
plaintiff a note to that effect on that day.

·      
When it was put to Dr. Eksteen that the first time he noted that
the plaintiff had difficulty balancing on her left leg was during the
appointment on January 22, 2009, Dr. Eksteen indicated that as a busy family
practitioner he often leaves the details of patients’ mechanical findings to a
physiotherapist or kinesiologist. He also pointed out a comment by the
plaintiff noted on August 6, 2009 that her balance had improved.

·      
Dr. Eksteen confirmed that at the time he wrote his report he
understood that the plaintiff was horseback riding. He commented that at
different times he and the plaintiff had considered whether she should resume
riding (in consultation with the physiatrist, the physiotherapist, the
kinesiologist, and the personal trainer) and whether it was time to reintroduce
horseback riding, limiting it to riding gentler, more mild-mannered horses. As
of the date of his report, Dr. Eksteen said that the plaintiff must have
resumed riding. He did not know whether the plaintiff had said anything about
riding in competitions. He did recall that she had been doing very modest
horseback riding for some time and probably wanted to introduce more rigorous
riding, as recommended by her caregivers. His first note about the plaintiff
riding after the accident was on October 29, 2009, to the effect that she was
still experiencing ongoing pain in her left lower back into her left lateral
thigh following the motor vehicle accident and was riding horses carefully
every now and then.

·      
Dr. Eksteen reviewed all his notes of the plaintiff’s
appointments from July 31, 2008 through to May 2, 2011. He indicated at various
times throughout this period when the plaintiff reported to him experiencing: a
burning sensation, a buzzing sensation, numbness, a rumbling sensation,
tingling or a zapping sensation. Those are all descriptions she provided
regarding pain in her left hip and thigh that were indicative of neuropathic
pain, including her reference to the sensation of feeling “like ants crawling”
and a burning sensation during her first visit to him after the accident. Also
noted was that at various times the plaintiff feels pain towards the end of the
day, that her leg was unchanged (noted on April 26, 2010) and the pain in her
left leg “comes and goes” with discomfort in the lateral aspect. He noted that
she was unable to run, but had been doing some riding and some gym work and was
functioning at work as an insurance adjuster, which was going well. His note
from her last visit on July 11, 2011 was that the plaintiff had been riding her
bike and doing some gym work, “tolerating all that fine.”

[69]        
Dr. Eksteen impressed the Court as a diligent, skilled, extremely busy
and hard-working family physician. To the extent that he was inaccurate as to
the extent of the plaintiff’s employment after the accident or other minor
matters I do not regard that to reflect negatively on the substance of his
evidence or on the credibility of the plaintiff in terms of what she told him and
what he noted during the various appointments. It is clear on his evidence that
the plaintiff suffered long term pain and neurological symptoms in the area of
her left hip and thigh that she injured in the accident. Dr. Eksteen has
managed her care since that time and has considerable insight into the cause
and extent of her difficulties, including the chronic pain she continues to experience
in the area of her left hip and thigh.

Dr. John le Nobel, a specialist in physical medicine and rehabilitation

[70]        
Dr. le Nobel was qualified to provide expert opinion evidence as a
medical doctor specializing in physical medicine and rehabilitation. He
provided a report with regards to the plaintiff, dated May 11, 2011, that
included a history he had compiled of her visits after the accident on July 18,
2008, and also referred to seeing her about four years earlier with respect to
left ankle pain after an earlier motor vehicle accident that occurred on April
16, 2003.

[71]        
Dr. le Nobel made the following factual assumptions in his report: that
the plaintiff was in a motor vehicle collision on July 18, 2008, following
which she “had pains in her low back, left quadriceps, tingling around her left
outer thigh and left ankle and pain in at her left ankle, as well as
restriction in activities for a time”; she felt she had recovered
“symptomatically and functionally from the April 16, 2003 collision injuries in
time”; she had been able “to engage in physically demanding work and in
recreational activities appropriate for her age for a year or more before the
July 18, 2008 motor vehicle collision”; and she “has been symptomatic and
restricted in her activity tolerance following the July 18, 2008 motor vehicle
collision.”

[72]        
In his report Dr. le Nobel stated that his diagnosis of the plaintiff
“some two years and seven months following the July 18, 2008 motor vehicle
collision” was that she suffers from chronic pain, which he defined as “pain
which persists for longer than tissue healing is felt to require. Tissue
healing is generally felt to occur within 10 to 12 months of injury.” He
further stated in his report:

I diagnose chronic trochanteric bursitis based on the recurrent
findings of tenderness at the bony prominence of the left femur.

Melissa McKenzie’s examination at times has shown restricted
lumbar spine extension movement and pain aggravation with such movement
consistent with mechanical low back pain. […]

Melissa McKenzie’s assessment with aggravation of her low
back pain with backward bending is indication that the mechanical low back pain
is generated, at least in part, through posterior spinal structures such as the
lumbar facet joints. […]

I diagnose deconditioning, based on Melissa McKenzie’s
account of reduced activity tolerance subsequent to the motor vehicle collision
July 18, 2008 as well as her description of weight gain subsequently to the
motor vehicle collision. She has had persistent interference with her sleep. In
my experience sleep interference is common sequelae when patients have ongoing
pain and reduced activity tolerance subsequent to physical trauma.

Melissa McKenzie has felt some improvement in her symptoms
although still remains symptomatic and remains limited in her activity
tolerance over two years and seven months since the July 18, 2008 motor vehicle
collision. The most limiting diagnosis apparent at Melissa McKenzie’s more
recent visits is the chronic pain around the left hip trochanteric prominence.

[Emphasis added.]

[73]        
Dr. le Nobel stated that in his view the plaintiff’s left trochanteric
pain since July 2008 had “arisen on account of effects of the July 18, 2008
motor vehicle collision.” He based this opinion on the plaintiff’s account of
not having these symptoms and limitations before July 18, 2008; on the records
of Dr. Eksteen; and on his own earlier assessments of the plaintiff in 2004 and
2005 that did not indicate problems around her left hip trochanteric
prominence. Specifically, Dr. le Nobel noted:

Review of my April 21, 2004
document includes reference to tingling pain at the outer left thigh and low
back pain to the left of the lumbar spine and tenderness through the lower
lumbar spine midline. Tightness of the hip flexor muscles as well was noted
April 21, 2004. No tenderness was recorded at the left hip trochanteric
prominence at that visit or at subsequent visits October 7, 2004 or May 18,
2005. These records, as well as Melissa McKenzie’s own practitioner’s records and
Melissa McKenzie’s account of her physical capabilities in the year or more
before the July 18, 2008 motor vehicle collision implicate the July 18, 2008
motor vehicle collision as the cause of her ongoing pain since that time.

[74]        
With regards to the plaintiff’s “Impairment and Disability” Dr. le Nobel
wrote:

Although she has felt some reduction in her symptoms
compared to earlier following the motor vehicle collision, Melissa McKenzie has
not recovered from her injuries. Absent some as yet unrealized improvement, she
is anticipated to remain symptomatic and remain limited in the future, most
likely for the next several years and possibly longer, depending on further
investigations and responses to further treatment.

Melissa McKenzie has been limited in her standing and lifting
tolerance subsequent to the motor vehicle collision. She has been limited in
her driving and her recreational activities such as horseback riding and
running. She continues to be limited in her tolerance for recreational
activities. Her post accident limitations are as a consequence of the motor
vehicle collision.

[…] From her recent descriptions of her work hours, she
is able to manage in the range of 10 hours a day in her present occupation.

Melissa McKenzie’s reduced recreational capabilities and
the loss of enjoyment of life as a consequence of this reduction is anticipated
to continue in future, most likely for the next several years and possibly
longer.

[Emphasis added.]

[75]        
In his report Dr. le Nobel recommended further investigation of the
plaintiff’s left thigh pain with magnetic resonance contrast scanning to try to
identify more specifically the “areas of inflammation around the left hip
trochanteric prominence” such that with this information “it might be possible
to inject with local anesthetic and corticosteroid into the pain generators at
the left hip trochanteric prominence.” He also indicated that ultrasound
investigation of the plaintiff’s pelvis and abdomen could help to identify
“structures in the pelvis and abdomen which may be impinging on the nerves to
the left thigh.” He suggested that magnetic resonance imaging of her lumbar
spine “could be of help in determining if there is a protruding lumbar disc
impinging on the nerves to the left thigh.”

[76]        
Dr. le Nobel recommended that the plaintiff may benefit from ongoing
assistance from a kinesiologist or exercise-based physiotherapist to attempt to
improve her level of physical fitness. He recommended access to a fitness
facility and assistance from a physiotherapist or kinesiologist several times
monthly over the following eight to ten months, with possible modification
depending on her response. He also indicated that ongoing use of medication,
including anti-inflammatory medication and night time sedative may benefit the
plaintiff. His view was that without addressing sleep interference, in
combination with attempts to improve fitness and pain reduction, her chances of
successful rehabilitation are reduced. In his opinion it was unlikely that
surgery would assist the plaintiff.

[77]        
The cross-examination of Dr. le Nobel included the following points of
note:

·      
In 2004 Dr. le Nobel reported to Dr. Eksteen that the plaintiff
had “quite significant snapping of her hips and flexion deformities of the
hips, worse on the left side.”

·      
When the plaintiff came to see Dr. le Nobel on October 31, 2008,
she wrote a description of the accident that described a large highway
tractor-trailer, turning left, that “started driving his trailer over the back
of my car”, that she “laid on [her] horn and slammed on [her] clutch and
brake.” She described that the back window of her car blew out and she was
frozen with her feet pressed to the floor until a witness banged on her window
to get her out. Dr. le Nobel thought that the topic of the plaintiff being pushed
sideways came up in his discussion with her. He agreed that in his report to
Dr. Eksteen on November 4, 2008, he referred to the back of the plaintiff’s
vehicle being “crushed” in the accident.

·      
The plaintiff also wrote that she started to stiffen up within
four hours of the accident, it felt like “there was a rock in [her] left thigh”
and the next morning “the left leg still had a rock in it and [her] left hip
and low back were sore.” Dr. le Nobel agreed that when he examined her he did
not see or feel this “rock” in the plaintiff’s left thigh.

·      
Dr. le Nobel confirmed comments he wrote on October 31, 2008 that
indicated the plaintiff had told him she had tried some of her pre-accident
activities, including horseback riding, to a limited extent post-accident and
they had been “tolerable.” Dr. le Nobel said that to him this meant that she
had been on the back of a horse and the horse had moved. Dr. le Nobel said he
understood that she had “mucked the horses and maybe just done some walking on
them, not any faster riding.”

·      
When Dr. le Nobel was questioned about his conclusion that the
accident had caused the plaintiff’s injuries, as opposed to them being
cumulative from the various physical activities she pursued prior to the
accident. He agreed that his opinion about causation was based primarily on the
plaintiff’s assertion that her complaints came on after the accident. However,
Dr. le Nobel also indicated he understood that the plaintiff had been pursuing
a variety of physical activities during the winter of 2007-2008 without any
symptoms. He did agree that when a repetitive stress injury occurs it does not
necessarily become apparent right away. He also agreed that bursitis can arise
in a number of ways, including as a result of a repetitive stress injury or an
overuse injury.

·      
Dr. le Nobel said that when he saw the plaintiff in October 2008
she did not have the hip deformity that he had noted in 2004.

·      
Dr. le Nobel agreed that in his report where he indicated that
emergency personnel attended and hospital care was recommended for the
plaintiff in fact she did not attend the hospital following the accident.

·      
Dr. le Nobel confirmed that the plaintiff indicated to him in
September 2008 that she had attended pool therapy for two or three sessions
during September 2009 and felt that she tolerated this well. She was running
twice a week, horseback riding about once a week and also doing barn work
several times a week.

·       When
Dr. le Nobel examined the plaintiff on October 31, 2008, he noted that she was
tender at the outer prominence of her left hip and rotating her hip to 40
degrees while lying prone was aggravating to her. As well, he noted that she
was tender through the lower lumbar spine in the midline and tender through the
length of her spinal column. When it was put to him that tenderness was not an
objective sign of injury but rather a “hybrid sign” Dr. le Nobel stated:

Well, it seems to me that what we’re trying to
establish was whether she was tender over the … trochanteric prominence, and
she comes in and sees me I don’t — I don’t want to count the times… She
comes in and sees me at roughly half a dozen times a year and every time she’s
tender over that same spot and not in other places. I do an injection with
freezing in that area and she says it takes the pain away for a while. So that
seems pretty obvious to me.

·      
Dr. le Nobel indicated that on March 20, 2009, the plaintiff was
tender along the anterior pelvic brim, which is just above where the left hip
joint is, and he gave her an injection to the lateral cutaneous nerve of her
left thigh, thinking that might help alleviate her pain as sometimes the nerve
running down the thigh passes through that area. He explained the trochanter is
at the highest point of the hip if a person is lying on their side and it is
the “whole fluted area at the upper end of the thigh bone where it flutes
outward…”

·      
Finally, Dr. le Nobel confirmed that he was comfortable with a
diagnosis of trochanteric bursitis and did not agree with a diagnosis of
sacroiliac dysfunction.

[78]        
In re-examination Dr. le Nobel agreed, based on a review of Dr.
Eksteen’s notes from the plaintiff’s February 12, 2008 visit that Dr. Eksteen’s
findings of normal range of motion, no trigger points and no objective findings
of any ankle problem indicate that as of that time the plaintiff was tolerating
physical activity, including horseback riding and cycling, quite well.

[79]        
Dr. le Nobel impressed the Court as a highly skilled professional who
was motivated to help alleviate the plaintiff’s ongoing pain and discomfort,
which he attributes to the accident. He had the added benefit of having treated
the plaintiff in 2004 for injuries he does not regard to be related to her
ongoing pain and discomfort associated with the injuries she sustained in the
accident. Dr. le Nobel is obviously attuned to the possible sources of her pain
given his testimony regarding the injections he has given the plaintiff (approximately
half a dozen times a year to alleviate tenderness over the trochanteric
prominence) that she reported temporarily reduced the pain. Regardless of Dr.
le Nobel’s exact diagnosis he is attuned to the possible sources of her pain to
the extent he is able to treat her and temporarily reduce her discomfort. I
make this comment because of the findings of Dr. Armstrong that follow, and
whose evidence on the exact diagnosis of the plaintiff’s condition I prefer
over the diagnosis of Dr. le Nobel.

Dr. John Armstrong, a specialist in the diagnosis of causes, supervision, management
and treatment of chronic pain

[80]        
Dr. Armstrong was found to be qualified to give expert opinion evidence
as a physician with an expertise in chronic pain management, the diagnosis of
causes of chronic pain and the supervision and treatment of chronic pain. He
also has a Ph.D. in Neurology and Neurosurgery from McGill University. Dr.
Armstrong has an extensive background in the diagnosis and treatment of chronic
pain, including assisting individuals with prolonged recoveries following back,
neck, shoulder, pelvic or hip girdle or limb injuries.

[81]        
Dr. Armstrong did a full review of the plaintiff’s background,
lifestyle, the details of the accident and her injuries. In particular, he
noted the following in his report dated June 14, 2011:

In my opinion, Ms. McKenzie had a normal childhood albeit
with some restriction growing up owing to an intense program of horseriding.
She had high school education with some post-secondary courses, an entry level
work history, an active lifestyle, and little adversity in her life before the
MVA. She had been carrying a heavy debt load related primarily to student
loans.

Aside from her female gender and a brief period of abuse,
there were no apparent risk factors for the development of chronic pain or for
a sacroiliac joint injury.

[…]

In understanding the MVA and her initial complaints, I have
relied on her self-report to me and on the Documents, especially the crew
report and the Emergency Room (ER) records from Lions Gate Hospital (LGH).

According to Ms. McKenzie, on July 18, 2008 about 4:30 PM,
she was the restrained driver and sole occupant of a Pontiac Sunfire (2005) on
her way to visit her boyfriend. While travelling along in slow traffic, she
encountered an oncoming tractor trailer that turned left before leaving enough
room to avoid forcefully scraping the driver side of her car. The contact with
the trailer caused considerable compression to the Pontiac and the back window
was broken.

At the scene she was shaken but there was no alteration or
loss of consciousness. She was able to get out of the Pontiac through the front
passenger door. She evidently made forceful contact with the driver side door
as soon after she had a large bruise and hematoma (collection of blood) in her
left thigh. […]

Emergency services attended but
she declined to go to hospital. Her car was not drivable and her boyfriend
attended the scene to pick her up an [sic] take her to his place. At his house
she recalled feeling unsteady on her feet and dizzy. The hematoma began to
emerge that evening and became rock-hard.

[82]        
Dr. Armstrong conducted a neurological examination of the
plaintiff in which he noted that she had some weakness in her left leg,
“proximally more than distally, from favouring the leg to avoid pain.” He also
noted that there “was altered sensation in the distribution of the left lateral
femoral cutaneous nerve to the thigh.” He did not note any other neurological
sensory loss.

[83]        
With regards to his musculoskeletal examination of the plaintiff,
Dr. Armstrong noted that the plaintiff was generally slack-jointed, and stated
that “[e]xcessive joint mobility can be a risk factor for a sacroiliac joint
disorder”. He further noted:

Her head and
shoulders were protracted (shifted forward from their proper, more erect
position). The left shoulder was elevated in the absence of shortening in the
trapezius and levator scapulae muscles. No active myofascial trigger points
were identified.

Forward flexion of the lumbosacral spine was
diminished but recovery to the upright position was normal. The paraspinal
muscles were tender, weak, and poorly coordinated in their contractions with
evidence of some spasm.   The ribcage was rotated to the right. The waist fold
was higher on the right side. No active myofascial trigger points were
identified.

The left posterior superior iliac spine
(PSIS) and left anterior superior iliac spine (ASIS) were tender. The PSIS is
the origin (enthesis) of the long posterior sacroiliac ligament, an important
stabilizing structure for the sacroiliac joint. The ASIS is the proximal
enthesis of the inguinal ligament. When the sacroiliac joint becomes unstable,
these ligaments become overloaded and they shorten up, thereby exerting
continuous and excessive traction on their entheses, causing these sites to
become irritated and tender. The tightened inguinal ligament can also entrap
the lateral femoral cutaneous nerve to the thigh, especially if there has been
weight gain.

I found the pelvic brims were not
consistently level: there was intermittent elevation on the right or left side.
When I performed the dynamic Gillet test, there was hypermobility bilaterally
with reversible upslip (innominate shear) of the hemipelvis relative to the
sacrum on either side. The FABER or Patrick test was positive, more so on the
left.

The left hip was restricted in internal
rotation because the piriformis muscle was tight, having shortened in an
attempt to add stability to the sacroiliac joints. The insertion (enthesis) of
the piriformis at the left greater trochanter was very tender causing an enthesitis
easily confused clinically with trochanteric bursitis. The left vastus lateralis muscle (a component of the quadriceps
muscle) was tender down the side of the left thigh but there was no tenderness
at or below the knee laterally making a myofascial disorder of the left
iliotibial band unlikely in my opinion.

 [Emphasis added.]

[84]        
Dr. Armstrong’s opinion regarding the plaintiff
is as follows:

A.  The importance of factors present
before, at the time of, and after the MVA

[…]

It is my opinion Ms. McKenzie was
involved in a collision involving considerable compressive force to her left
hip girdle and left hemipelvis with significant torque around her lap belt, her
pelvis being relatively fixed and her feet fixed in depressing the clutch and
brake. This is the kind of situation that can result in soft tissue injury to
one or both sacroiliac joints.

Undetected sacroiliac joint dysfunction and
her persistence in the workforce likely have delayed her recovery.

B. Diagnoses relative to her injuries

1. Chronic myofascial disorder involving the muscles and ligaments primarily of the left hip and
pelvic girdle, a soft tissue condition that is (i)
associated with shortening of muscles and ligaments (stiffness), increased and
unbalanced resting and active muscle tensions, and muscle and ligament
discomfort and irritability (pain, tenderness, spasm and likely trigger point
activity), weakness, and fatigue; (ii) aggravated by abnormal spinal postures
and muscular deconditioning related to the coping tactic of pain avoidance and
by increased tension in the muscles of the neck and back secondary to anxiety
that serves to sustain an increase in the activity of the sympathetic nervous
system (adrenaline drive for "’fight or flight"); and (iii)
perpetuated by sacroiliac joint dysfunction with spinopelvic instability and
malalignment, the effects of which are transmitted up the spine from the low
back to the base of the skull through the continuum created by the axial bony
and soft tissues and make recovery from upper body complaints difficult or
impossible.

The following complications of (1) had also
arisen.

(i) Left-sided myofascial enthesopathic pain
as explained

(ii) Left-sided meralgia paresthetica as
explained

When I examined her, I found no active
myofascial trigger points but this does not rule out that her muscles are
harboring latent ones that likely become active only under certain conditions,
for example, when she is more active, fatigued or stressed.

Her chronic myofascial disorder had
improved somewhat with rehabilitation but, when I saw her, there were ongoing
residual complaints and findings related to it and these were likely being
sustained by spinopelvic instability owing to persistent sacroiliac joint
dysfunction. She had been plateaued in her recovery for some time because the
sacroiliac joint problem had not been resolved. In my opinion, she had yet to
reach maximum medical improvement and had clearly not regained her pre-MVA
condition.

2.  Sacroiliac joint dysfunction. As I have explained, the effects of
spinopelvic instability and malalignment attributable to sacroiliac joint
dysfunction can be transmitted up the spine to become the sustaining factor for
stubborn and enigmatic misalignment in the upper body (e.g. ribcage rotation)
because the axial and para-axial bony and soft tissues form a continuum from
the base of the spine to the base of the skull.

3.  Chronic pain and the emergence of its
complications including a possible increased
sensitivity to pain (peripheral and/or central nervous system sensitization),
emotional distress (Adjustment Disorder), cognitive slowing and distortion,
nonrestorative skeep[sic], and fatigue. The overall pain experience and the
speed of recovery are often aggravated by these complications but this should
not be misconstrued in a way that suggests the pain or other symptoms are
psychological in origin or that the patient is malingering.

An increased sensitivity to pain can occur
in susceptible individuals who are exposed to persistent pain and possibly
results from functional and structural neuroplastic changes that alter the way
pain signals are initiated and processed in the nervous system. Little is
presently known about what causes these changes but there are likely both
genetic and environmental factors.  When they occur, these neuroplastic changes
appear to be maintained and to be irreversible so that pain actually becomes a
chronic neurological disease, meaning the prospects for the individual ever
becoming pain-free are very-guarded. An extreme example of such neuroplastic
change is chronic widespread pain of fibromyalgia syndrome (FMS) which Ms.
McKenzie appears not to have developed.

Except when clinical features of neuropathic
pain are already present, it is difficult, in the current state of our
knowledge, to know for certain if a person who has chronic pain is susceptible
to neuroplastic change and the development of an increased sensitivity to pain
(lowered pain threshold). Since, when I examined her, Ms. McKenzie had no
evidence of neuropathic pain other than in association with entrapment of the
left lateral femoral cutaneous nerve to the thigh, it is uncertain what her
susceptibility might be. It is hoped that, in future, techniques such as
functional MR imaging (fMRI) may help to determine susceptibility to these
changes and demonstrate them objectively when they are present.

[Bold and underlining
in original deleted, new emphasis added.]

[85]        
Dr. Armstrong offered the following opinion regarding causation:

In my
opinion, the forces applied in the MVA to her left thigh, pelvis and sacroiliac
joints were likely to have been sufficient to overload and injure these
structures causing an acute myofascial disorder and sacroiliac joint
dysfunction. The myofascial disorder failed to resolve and became chronic owing
primarily to the perpetuating effects of the accompanying and unresolved injury
to her sacroiliac joints, the persistent spinopelvic misalignment, the
increased muscle tension resulting from ongoing emotional distress related to
the MVA, her continuance in the workplace, and the abnormal posturing and
physical deconditioning consequent to pain avoidance.

Owing to the persistence of her injuries and
possibly in response to certain risk factors I have described, there has been
the development of chronic pain and the emergence of its complications,
including the possibility of neuroplastic change.

Absent the MVA or other similar trauma,
it is my opinion that, on a balance of probabilities, Ms. McKenzie would likely
not have experienced a chronic myofascial disorder or sacroiliac joint
dysfunction nor would she have developed chronic pain and its complications.

[Emphasis
added.]

[86]        
Dr. Armstrong recommended “a more focused and carefully supervised
program of rehabilitative exercise aimed initially at ameliorating her sacroiliac
joint problem” to provide pain relief in relation to her myofascial disorder.
He recommended that she eliminate all forms of manipulative treatment or other
forms of passive therapy if these therapies were to the exclusion of active
therapy. He recommended that she engage in aligning and stabilizing exercises
and the regular use of a proper-fitting inter-trochanteric (sacral) belt
available for a cost of about $75. He also recommended customized physiotherapy
for about 20 sessions over the course of ten weeks. These services cost about
$75-$100 per hour and are not covered by MSP. Once her sacroiliac joints are
aligned and more stable, Dr. Armstrong recommended that the plaintiff pursue a
steady course of progressive core strengthening exercises and posture control
under the supervision of a physiotherapist, which should help to improve her
axial myofascial disorder with supervision three times weekly for the first six
weeks. Then she could graduate to a self-managed program with visits twice monthly
to a physiotherapist to ensure she continues to progress. Dr. Armstrong
estimated that this process would take the plaintiff up to a year of regular
daily and disciplined exercise, after which she will need a maintenance program
of exercise three or four times a week at a gym, which typically costs about
$600 per year. He also recommended that she buy a pedometer and engage in a
progressive walking program, aiming to achieve 9000 to 10,500 steps daily. Once
the plaintiff’s pain and other symptoms are better controlled, Dr. Armstrong
recommended that she attend a clinical psychologist with experience in chronic
pain management for about 20 sessions at a cost of $175 per hour, not covered
by MSP. He recommended that she take ten weeks off work to focus on her
rehabilitation.

[87]        
In terms of the plaintiff’s present and future impairments and the
potential for improvement or deterioration, Dr. Armstrong noted that:

The natural history of unresolved chronic
pain is that most patients find it continuously difficult to manage physically,
cognitively, socially and emotionally in their everyday lives and at work or at
school. If these individuals are successful in maintaining or returning to
employment as competitive and reliable workers, it is usually in a part-time,
more sedentary capacity and in an accommodative environment where they can pace
themselves to avoid overwhelming pain, emotional and cognitive distress, and fatigue. 
Ms. McKenzie was actually working full-time when I saw her.

If she can stabilize her sacroiliac joints,
improve her chronic myofascial disorder and regain some core strength. Ms.
McKenzie’s capacity to continue as a full-time sedenatary [sic] worker will
likely improve but there can be no guarantee of how much, if any, improvement
she can achieve. Greater productivity and lowering any need for accommodation
in the workplace will depend on the outcome of attempts to better control her
symptoms, improve her coping skills, alleviate her chronic axial myofascial and
sacroiliac joint problems, and restore core strength.

In the face of continuous and ongoing
sacroiliac joint dysfunction and impairment of core strength and stability, it
is reasonable, in my opinion, that, initially, she should take some time off
work, say during the 10 weeks or so she works with Mr. Kotopski, to focus on
her rehabilitation. In the presence of ongoing spinopelvic instability,
continuing at work right now will likely be counter-productive to her
rehabilitation.

Absent additional and successful treatment
for her pain and other symptoms to include counseling around pain coping
strategies, relaxation, cognitive distortions, and improved access to her
feelings; rehabilitation for her physical problems; and time off work, I do not
see her capacity as a worker changing in the foreseeable future.   The reality
is that, absent substantial improvement in her overall condition and
persistence of spinal malalignment, she will likely, in my opinion, experience
a progressive wearing out of her sacroiliacjoints and her lower lumbar
vertebral segments, rendering bet-more vulnerable to an intolerance of
prolonged static upright postures. This would make sedentary work even more
difficult for her, resulting in potential inability to earn a living and
chronic unemployment, which outcomes will have profound repercussions for her
future.

Unstable sacroiliac joints will possibly
complicate pregnancy and childbirth owing to unrestored core strength and
instability of the spinopelvic ring (entrance to the birth canal).

Most of her energy and efforts has gone into
her job and her rehabilitation. Thus, she had been unable to fully resume her
recreational, social and household activities owing to core strength and
stability compromised by her condition and her persistence in the workplace.
This situation is also unlikely to change, absent better symptom control, some
time away from work, and additional and successful rehabilitation.

[Emphasis
added.]

[88]        
Dr. Armstrong’s opinion as to the prognosis for the plaintiff is as
follows:

For the foreseeable future, it is certain
(100% chance) Ms. McKenzie will continue to experience ongoing sleep disorder
and fatigue, secondary to her chronic pain and diminished physical capacity,
both of which persist because of an unresolved chronic myofascial disorder and
sacroiliac joint dysfunction. Little or no improvement is to be expected in the
foreseeable future absent better pain control, enhanced application of her
coping skills, and additional and successful physical rehabilitation to improve
her underlying sacroiliac joint dysfunction and rebuild spinopelvic stability
and core strength.

If these treatment and rehabilitative goals
can be achieved, her chronic pain and other symptoms and her physical capacity
will likely improve but, at this time, no firm prognosis can be given as to the
extent of any improvement. Generally speaking, the longer chronic myofascial
and sacroiliac joint dysfunction persists, the less favorable is the chance for
significant improvement with additional rehabilitation.

Increased sensitivity to pain is likely to
diminish over time if the pain experience becomes less severe with additional
appropriate treatment, counseling, and physical rehabilitation. Owing to the
presence of chronic pain beyond two years, increased sensitivity to pain has
possibly developed in her nervous system owing to neuroplastic changes that
will persist on a permanent basis. While the issue of neuroplastic change is
uncertain, even with additional successful treatment, her prognosis for
returning to her condition as it was before the MVA is extremely guarded.

For the foreseeable future, it is certain
(100% chance) Ms. McKenzie will continue to experience a chronic myofascial disorder
and a persistent limited physical capacity especially for spinal loading,
absent additional and successful physical rehabilitation for her underlying
problems of sacroiliac joint dysfunction and diminished core strength. Once
again, it is not possible to predict how much improvement she will obtain or
whether she can return to her pre-MVA status.

Her overall prognosis is reflected in the
prognosis of other patients with chronic pain. In her case, the prognosis is
very guarded indeed in respect to achieving diminished pain and full recovery
of pre-MVA physical, emotional, cognitive, recreational, domiciliary,
occupational, and social function.

[…]

I trust I have also made it clear why her recovery has been
legitimately prolonged by the complexity of her problems and why, even if she
obtains the additional and successful treatment, counseling and rehabilitation
she needs, her outlook for further recovery remains guarded.

[Emphasis added.]

[89]        
Cross-examination of Dr. Armstrong included the following points of
note:

·      
Dr. Armstrong acknowledged that he made a mistake by referring to
the emergency room records from Lions Gate Hospital as the plaintiff did not go
to a hospital after the accident;

·      
Dr. Armstrong relied on the plaintiff’s account of the accident
and he understood that to take out the back window of her vehicle required
significant compression, but he agreed that he was not an expert on what force
was required to break the back window. He said based on his experience it takes
considerable force to injure the sacroiliac joint.

·      
Dr. Armstrong also corrected the date he saw the plaintiff to
April 28, 2011 as opposed to the date stated in his report, and confirmed that
he only saw her on one occasion.

·      
He agreed that the sacroiliac joints function as shock absorbers
to prevent force being transmitted up the spine and they are able to withstand
a fairly significant force without becoming disturbed.

·      
He stressed that an individual’s background is relevant to their
risk of developing chronic pain and a traumatic childhood, violence, and abuse
are all risk factors, as is stress. He acknowledged that stress from being
heavily in debt can be a risk factor.

[90]        
Upon careful review I find that I accept the evidence of Dr. Armstrong
without reservation despite the several factual errors he made. He impressed
the Court as an extremely experienced and knowledgeable professional who, by
virtue of his knowledge and experience, diagnosed the plaintiff’s condition as
a “chronic myofascial disorder involving the muscles and ligaments primarily of
the left hip and pelvic girdle” with aspects of sacroiliac joint dysfunction
and chronic pain. He clearly views the accident as causing the plaintiff’s
injuries that persist in her left hip and thigh. He regarded the initial force
of the accident as applied to her left thigh, pelvis and sacroilliac joints as
“likely to have been sufficient to overload and injure these structures.” He
found this caused “an acute myofascial disorder and sacroiliac joint
dysfunction” that failed to resolve and became chronic due to the factors he
outlined.

[91]        
Notably, I find the fact that significant tenderness at the enthesis of
the piriformis at the left greater trochanter is, in Dr. Armstrong’s opinion,
easily confused clinically with trochanteric bursitis as diagnosed by Dr. le Nobel.
This lends additional strength to the opinion of Dr. Armstrong and also serves
to strengthen aspects of Dr. le Nobel’s opinion. While I accept the opinions of
Dr. Armstrong first and foremost as to the nature of the plaintiff’s condition,
the fact that two skilled medical specialists have diagnosed conditions in the
area of the plaintiff’s left hip and thigh that account for her ongoing pain
and discomfort and both attribute it to the force applied to that area of her
body in the accident, gives a cumulative overall strength to each of their
opinions and to the plaintiff’s case.

Findings on the evidence

Liability for the accident

[92]        
Based on the evidence of the witnesses and my findings of credibility
and reliability as set out previously, I find that the defendant Sidhu is
solely liable for the accident due to his negligence in commencing to turn the
tractor-trailer left through heavy traffic when it was unsafe to do so and
without keeping an adequate lookout for traffic in the immediate area of the
trailer. This finding is primarily based on the evidence of the plaintiff, Ms.
Mohr and aspects of the defendant Sidhu’s evidence.

[93]        
Counsel for the defendants sought a finding that the plaintiff was
blocking the driveway or the intersection of the driveway with 96^th
Avenue, in violation of s. 189(1)(b) and (c) of the Motor Vehicle Act, R.S.B.C.
1996, c. 318 [MVA]. My findings on the evidence do not support this
conclusion. The plaintiff was likely past the mouth to the driveway when struck
by the tractor-trailer. In any event, the defendant Sidhu was legally obliged
to make his left turn across the lanes of oncoming traffic safely, which he
failed to do. In this regard I note that s. 166 of the MVA states:

Turning left other than at intersection

166  A driver of a vehicle must not turn the vehicle to
the left from a highway at a place other than an intersection unless

(a) the driver causes the vehicle to approach the place
on the portion of the right hand side of the roadway that is nearest the marked
centre line, or if there is no marked centre line, then as far as practicable
in the portion of the right half of the roadway that is nearest the centre
line,

(b) the vehicle is in the position on the highway
required by paragraph (a), and

(c) the driver has ascertained that the movement can be
made in safety, having regard to the nature, condition and use of the highway
and the traffic that actually is at the time or might reasonably be expected to
be on the highway.

[94]        
The defendant Safeco Trucklines Ltd. is also liable as the owner of
tractor unit. There is no evidence to a support a finding other than both
defendants are jointly and severally liable for the negligent act of the
defendant Sidhu.

Causation

[95]        
The defendants relied on White v. Stonestreet, 2006 BCSC 801 [White]
with regards to causation, it being their position that the plaintiff had
pre-existing injury, pain and weakness in her left leg due to the 2003 motor
vehicle accident that contributed to the injuries and pain she now attributes
to the accident.

[96]        
In White, the 30 year old plaintiff was involved in a motor vehicle
accident and sought non-pecuniary damages for pain, suffering and loss of
amenities. The plaintiff claimed that he had a pre-existing back condition that
was asymptomatic before the accident but which became symptomatic because of
the accident. The trial judge held that it was not established on a balance of
probabilities that the plaintiff’s continued back problems were caused by the
motor vehicle accident, finding that temporality is not the same as causation.
The plaintiff’s continuing lower back symptoms were not found on a balance of
probability to be caused by the accident, and non-pecuniary damages were fixed
at $35,000 taking into account the findings on causation.

[97]        
I note that the Supreme Court of Canada has recently decided a case
regarding causation, Ediger v. Johnston, 2013 SCC 18, in which Rothstein
and Moldaver JJ. for the Court stated:

[28]      This Court recently summarized the legal test for
causation in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R.
181.  Causation is assessed using the “but for” test:  Clements,
at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1
S.C.R. 333, at paras. 21-22. That is, the plaintiff must show on a balance of
probabilities that “but for” the defendant’s negligent act, the injury would
not have occurred: Clements, at para. 8.  “Inherent in the
phrase ‘but for’ is the requirement that the defendant’s negligence was
necessary to bring about the injury — in other words that the injury would not
have occurred without the defendant’s negligence”  (ibid. (emphasis
deleted)).

[29]      Causation is a factual
inquiry (Clements, at paras. 8 and 13).  Accordingly, the trial
judge’s causation finding is reviewed for palpable and overriding error (H.L.
v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras.
53-56).

[98]        
In the present case, I find that the plaintiff has established on a
balance of probabilities that her injuries – the soft tissue injuries and her
long term chronic myofascial disorder in the area of her left hip and thigh,
the sacroiliac joint dysfunction and her chronic pain – occurred as a result of
the collision between the tractor-trailer driven by the defendant Sidhu, as
caused by his negligence in making the unsafe left turn. But for this negligent
act the plaintiff’s injuries would not have occurred.

[99]        
This finding arises from the plaintiff’s testimony as to her physical
abilities prior to the accident and the nature and extent of the injuries, pain
and physical limitations she suffered almost immediately after the accident and
thereafter. It also arises from the evidence of Ms. Mohr, Mr. Ordano, Dr.
Eksteen, parts of the testimony of Dr. le Nobel, and the evidence of Dr.
Armstrong. I find that the plaintiff was recovered from prior injuries to her
left ankle and lower back that might have had an impact on the extent of the
injuries caused by the accident, including any injuries sustained in the 2003
motor vehicle accident. To the extent she may have had any residual weakness or
vulnerability to injury in her lower back, pelvis or hips that contributed to
the extent of the injuries caused by the accident, which I do not regard to be
established on the evidence, it was the accident caused by the defendants’
negligence that triggered any reactivation of them.

Summary of findings regarding the nature and extent of plaintiff’s injuries
and their impact on her life

[100]    
I summarize briefly the findings from the evidence with regards to the
nature and extent of the plaintiff’s injuries and their impact upon her as
follows:

1.     As of 2005-2006
the plaintiff had recovered from an earlier injury to her left ankle sustained
in the 2003 motor vehicle accident.

2.     Prior to
the accident (July 18, 2008) the plaintiff, 28 years old, was very physically
active and generally strong, despite the fact that she failed to pass the PARE
test on two occasions. She regularly ran, worked out, did heavy work around the
barn related to the care of horses and rode and trained challenging horses at a
competitive level.

3.     Prior to
the accident the plaintiff had also recovered from injuries she sustained in
the first PARE test, taken in August 2007, when she “kinked” the right side of
her back and aggravated the prior injury to her left ankle, which became
temporarily swollen. She resumed her physical training but failed to successfully
complete her second attempt at the PARE test in November 2007 for reasons
associated with her grandmother’s death.

4.     In the
accident she sustained soft tissue injuries to her neck, back and shoulders, as
well as to her left hip and thigh. Within hours of the accident she noticed a
rock-like lump in her upper left thigh and Mr. Ordano attempted to take a
picture of bruising in this area of her left thigh. This lump dissipated over
time and was not observed by Dr. Sutherland or by Dr. Eksteen, who first saw
the plaintiff on July 31, 2008. The injuries other than to the area of her left
hip and thigh (and to a lesser extent her lower left back) resolved by
approximately December 2008, but pain, discomfort and signs of neurological
pain in the area of her left hip and thigh continued up to the date of trial,
with gradual overall improvement but intermittent flare ups.

5.     The evidence supports Dr. Eksteen’s conclusion that “[t]he highest
level of clinical diagnosis at this point is persistent pain from the left
lower back to the left lateral thigh including the left hip area. The pain has
mixed features of neuropathic pain and soft tissue pain.”

6.     Although
the Court does not accept Dr. le Nobel’s diagnosis of chronic trochantric
bursitis, the Court does accept that he has treated the plaintiff with repeated
injections to the area of her left hip trochanteric prominence that have
temporarily reduced her pain. In 2004 Dr. le Nobel noted the plaintiff to have tingling
pain at the outer left thigh, low back pain to the left of the lumbar spine,
tenderness through the lower lumbar spine midline and tightness of the plaintiff’s
hip flexor muscles. He did not note any tenderness at the left hip trochanteric
prominence prior to the accident.

7.     In 2004
Dr. le Nobel noted the plaintiff to possess certain hip deformities, but his
views in this regard changed as a result of his examinations of the plaintiff
subsequent to the accident to the extent he no longer regarded such deformities
to be present.

8.     Dr. le Nobel
did not regard the plaintiff to have recovered from her injuries from the
accident and considered her likely to remain symptomatic and to remain limited
in the future, most likely for the next several years and possibly longer
depending on further investigations and responses to treatment. He recognized
that she is able to manage ten hour days in her present occupation, but
considered her reduced recreational capabilities and loss of enjoyment of life
likely to continue into the future, most likely for the next several years and
possibly longer.

9.     The Court
accepts Dr. Armstrong’s diagnosis of the plaintiff’s condition arising from
injuries sustained in the accident. He regarded the accident to have caused a
considerable compressive force to the plaintiff’s left hip girdle and left
hemipelvis with significant torque around her lap belt. His diagnosis is that
she suffers from chronic myofascial disorder that had improved
somewhat with rehabilitation but was “likely being sustained by spinopelvic
instability owing to persistent sacroiliac joint dysfunction,” chronic pain,
emotional distress, cognitive slowing and distortion, non-restorative sleep and
fatigue.

10. Based on the opinion of Dr.
Armstrong it is certain that the plaintiff will continue to experience a chronic
myofascial disorder and persistent limitations to her physical capacity for
spinal loading. He was unable to predict how much improvement she will obtain
and whether she will return to the status she enjoyed prior to the accident.
His view of her prognosis was “very guarded indeed” in terms of her achieving “diminished pain and full recovery of pre-MVA physical,
emotional, cognitive, recreational, domiciliary, occupational, and social
function.”

11. In the past the plaintiff has
benefited from injections to the afflicted area which have provided her with
temporary pain relief. Continued physiotherapy with Mr. Kotopski as recommended
by Dr. Armstrong may be beneficial and time away from work to focus on her
rehabilitation is still warranted. The other forms of treatment recommended by
Dr. Armstrong may be of assistance to the plaintiff.

12. The plaintiff has a strong work
ethic and is somewhat stoical in nature, such that she continued to work and
attend courses after the accident, albeit in the first few months in
considerable discomfort, initially using crutches intermittently. Because of
injuries sustained in the accident the plaintiff gained weight, became
de-conditioned, and suffered from increased fatigue due to sleep disruption
caused by pain and numbness on her left side.

13. The plaintiff has gradually
returned to some forms of less rigorous physical activity including water
aerobics and occasional horse riding on less demanding horses, but she avoids
activities that involve heavy lifting or risk the impact of significant force
in the area of her left hip and thigh.

14. It is certain that the plaintiff
will continue to experience a chronic myofascial disorder and a reduced
capacity for heavy lifting or strenuous activities that cause an impact to her
pelvic area. Further physical rehabilitation and core strengthening may
alleviate her condition. Dr. Armstrong is not able to predict how much the
plaintiff may improve from these treatments or if she will be able to return to
her physical condition as it was prior to the accident.

15. The evidence falls short of
establishing that the plaintiff would likely have gained admission to the RCMP
or other police force as a regular police member, although she aspired to that prior
to the accident. This is in part because she failed the PARE test twice before
the accident and had not taken the required psychological tests to be an RCMP
police officer. However, the main reason for this finding is it is pure speculation
that had she passed these tests the plaintiff would have gained admission into
the RCMP (or another comparable police force) as a police officer and had a
long career. The evidence suggested that applicants to the RCMP had a one in
500 chance of being accepted as a cadet trainee.

16. The evidence also fails to establish
a significant reduction in income from employment in relation to the
plaintiff’s current employment as an insurance adjuster compared to a police
officer.

Damages

Non-pecuniary damages

[101]    
The plaintiff seeks an award of non-pecuniary damages in the range of
$120,000, whereas the defendants’ position is that any such award ought to be
less than $40,000.

[102]     The
decision of Stapley v. Hejslet, 2006 BCCA 34 [Stapley]
reviews the common factors that inform an award of non-pecuniary damages:

46     The inexhaustive list of
common factors cited in Boyd that influence an award of non-pecuniary
damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[103]     The
plaintiff relies upon the following decisions:

·       
Maillet v. Rosenau et al., 2006 BCSC 10, in which
the 28 year old plaintiff was in a serious collision, hitting her head on the
rear window of the truck. She had no pre-existing medical conditions. She did
suffer a period of depression in relation to an earlier medical problem. The
emotional and physical issues related to that medical problem were resolved at
the time of the accident. The plaintiff came from a difficult family and social
background that might have caused psychological issues. She suffered a mild
traumatic brain injury in the collision. The plaintiff now suffers chronic pain
syndrome relating to head, neck and shoulders and major depression. The doctor
indicated that it would be unlikely for the plaintiff to recover. Powers J.
awarded $110,000 in non-pecuniary damages.

·       
Samuel v. Levi, 2008 BCSC 1447, in which the
plaintiff was a UBC student struck by a car initially reporting injuries to her
knee. However, shortly after the accident, she presented to the student health
services with weakness, difficulty breathing, chest discomfort and jaw pain.
She experienced emotional trauma from the event and presented to physicians as
profoundly depressed and tearful.  Her pain increased over the following few
months after the accident to a point of full incapacitation. Diagnosis of the
plaintiff’s injuries was difficult and at different points led to different
prognoses. She had suffered six years of vacillating, chronic and disabling
pain, fatigue and weakness due to a complex somatoform disorder and conversion
disorder. The plaintiff had received a variety of alternative and conservative
therapies with limited success. She engaged in limited social and recreational
activities, and was mostly sedentary because she was easily fatigued. The
plaintiff’s prognosis was that the plaintiff would likely continue to suffer from
depression.  B.J. Brown J. awarded $100,000 in non-pecuniary damages and stated
the following at paras. 98-99:

98 I
have considered the cases with respect to non-pecuniary damages provided by
each of the parties. In my view, $100,000 is an appropriate award for
non-pecuniary damages in this case. As I have indicated, the accident has had a
dramatic impact on the plaintiff. She is not able to pursue her life’s dream of
becoming a research scientist. She is not able to undertake any sustained
activity. Her injuries, received in the motor vehicle accident have caused her
to modify all aspects of her life. She is limited in the amount of exercise
that she can undertake. Her husband does many of the household chores.

99 However,
Dr. Samuel is not as disabled as are some of the individuals in the cases to
which I have been referred. She is able to cope with her complaints by limiting
her activities, reducing her exposure to cold, et cetera. Accepting, as I do,
Dr. Hurwitz’s opinion, even if she is treated for her somatic disorder, she is
likely to continue to suffer from depression which is likely to interfere with
her enjoyment of life as well as her ability to obtain employment.

·       
Eccleston v. Dresen, 2009 BCSC 332, in which the 43
year old plaintiff was in an accident where she was found 60 percent liable.
The plaintiff suffered a whiplash-type injury to her upper spine and has
developed chronic pain since the accident. Prior to the accident the plaintiff
was on social assistance and remained on social assistance to the time of
trial. The Court held that she suffered moderate soft tissue injury to her neck
and upper back. She continued to suffer from chronic pain. She was also
depressed as a result of the pain she experienced. The plaintiff’s condition
was likely permanent. The Court found that the plaintiff had a predisposition
to depression and related somatoform pain conditions and her damages should
thus be reduced by 10% to reflect that contingency. Barrow J. awarded $120,000
in non-pecuniary damages reduced by 10% contingency and stated:

136 I
am satisfied that in the plaintiff’s case, she had a predisposition to
depression and related somatoform pain conditions. […] Recognizing that the
plaintiff’s prior experience with depression and the attendant somatoform symptoms
was the result of unusual events, namely, the fire and the death of her
daughter’s friend, and recognizing that her role as a single parent was coming
to an end with the maturation of her children, I do not consider that it was a
large risk. I fix it at 10 percent, and the damages that would otherwise be
appropriate will be reduced to reflect that contingency.

137 As
to the likely course of the plaintiff’s condition, I note that she has recently
weaned herself from prescription pain medication, medication that was not
helping her in any event. I accept Dr. O’Breasail’s opinion that Ms. Eccleston
would likely benefit from intensive psychotherapy and a review of her
anti-depressant medication with a view to determining whether some combination
of those kinds of medications may benefit her. With these interventions, it is
reasonable to assume that over time, but not in the near future, the
plaintiff’s perception of pain will diminish. I am likewise satisfied that it
will not disappear but it will diminish.

138 The
plaintiff has suffered greatly as a result of the motor vehicle accident. The
soft tissue aspect of her injury is moderate in severity. The chronic pain to
which it has given rise has existed now for some six years and remains almost
completely debilitating for her. It has profoundly affected virtually every
facet of her life. I consider that it will continue to do so for the next five
years, but with appropriate drug and psychotherapy, there is a likelihood that
it will diminish but not resolve entirely. In these circumstances, I consider
that an appropriate award of non-pecuniary damages is $120,000 which is to be
reduced by 10 percent for the contingency discussed above.

·       
Slocombe v. Wowchuk, 2009 BCSC 967, in which the 25
year old plaintiff was in a car accident and suffered injury to lumbosacral
spine area and a mild traumatic brain injury. The plaintiff continued to
experience pain from soft tissue injury. The plaintiff had pre-existing
spondylolisthesis condition, which became symptomatic after the accident. 
Prior to the accident, he was high energy, a physical laborer, in good health
and his lifestyle changed dramatically as a result of accident. Morrison J.
awarded $125,000 in non-pecuniary damages.

·       
Poirier v. Aubrey, 2010 BCCA 266, in which the 38
year old plaintiff was in a car accident and her soft tissue injuries developed
into chronic pain. The trial judge considered a proposed change in treatment
and the reports by three doctors as indicative of a substantial and real
possibility of significant improvement.  The Court of Appeal rejected that
conclusion and found that the plaintiff did not have a strong prognosis of
recovery.  The pain affected all aspects of her life, severely limiting her
enjoyment of life and her ability to earn an income. Lowry J.A. for the Court
of Appeal raised an award of $60,000 in non-pecuniary damages at trial to
$100,000.

·       
Tsalamandris v. MacDonald, 2011 BCSC 1138, in
which the plaintiff was involved in two motor vehicle accidents, one in 2005
and one in 2006. As a result of the accidents, the plaintiff suffered soft
tissue injuries, chronic pain and a depressive disorder. The prognosis was
uncertain. At the time of the second accident the 47 year of plaintiff was
staying home with one child and advanced in pregnancy with a second. She had an
active lifestyle. She had some residual discomfort from a prior accident in
2001, but it did not interfere with her activities. Since the accident she had
been depressed and unable to take care for her children. Griffin J. awarded
$100,000 in non-pecuniary damages, which remained the same on appeal but the
judgment was varied on other grounds: see 2012 BCCA 239.

[104]    
Counsel for the defendants reminded the Court of the oft-quoted comments
in Price v. Kostryba (1982), 70 B.C.L.R. 397 (B.C.S.C.), at 399
as to the caution a court must use when there is “little or no objective
evidence of continuing injury and when complaints of pain persist for long
periods extending beyond the normal or usual recovery” and the need for
convincing evidence that “complaints of pain are true reflections of a
continuing injury.”

[105]     Counsel
for the defendants relied upon:

·       
McLean v. Thompson & Thompson, 2011 BCPC
15, a Small Claims Court decision in which the 57 year old claimant was bitten
twice by a wolf-dog hybrid. The injuries were substantial and she required
surgery. The wound sites remained sensitive to pressure at time of trial. The
plaintiff suffered emotional distress, flashbacks, and nightmares.  She
remained scared of large dogs and dogs off leash which has restricted her
outdoor activities. The judge awarded non-pecuniary damages of $7,500.

·       
Laroye v. Chung, 2007 BCSC 1478, in which the 38
year old plaintiff was hit by a car when riding a bike.  The accident
aggravated injuries received in two motor vehicle accidents in 1998.  There had
been no improvement in his condition since the accident and the pain was severe
enough to require the use of ice and pain killers. He also was limited in his
outdoor activities such as running. Meiklem J. awarded non-pecuniary damages in
the amount of $40,000.

[106]    
In the present case I find that the decisions outlined above upon which
the plaintiff relies as authority for an award of $100,000 or higher may be
distinguished as pertaining to cases where the overall circumstances, the
extent of the plaintiff’s injuries, the ensuing pain and suffering, and
negative impact on daily life exceed those sustained by this plaintiff. The
cases relied upon by the defendants may be distinguished upon their facts.

[107]    
In the present case, reviewing the factors set out in Stapley, I
note the following:

·      
The plaintiff is a young, active woman, age 28 at the time of the
accident.

·      
The pain and disability she continues to suffer from arising from
the injury to her hips, lower back and left thigh has lessened with time but
remains a serious problem, at least on an intermittent basis. It is properly
characterized as mild to moderate chronic pain. This pain and disability is
likely to continue unabated into the future for an undetermined period of time.
The prevailing view is that her prognosis is poor to guarded and that further
treatment may have little or no positive effect.

·      
Her activities at work and recreationally are circumscribed by
the pain and weakness she experiences and her understandable reaction is to
favour and protect her lower back and left leg.

·      
Her present work takes her longer because of the pain and
discomfort she experiences, but at present her overall job performance or
opportunities of advancement do not appear to be negatively impacted.

·      
As a result of the injuries sustained in the accident the
plaintiff has had to give up rigorous horse riding, including competing and
high level training, running and other strenuous outdoor activities that risk
an exacerbation of her pain and disability.

·      
She has lost physical strength and conditioning that she seems
unlikely to regain. Dr. Armstrong referred to possible complications arising
from her accident-related injuries should she become pregnant.

·      
The plaintiff remained more or less fully employed from the time
of the accident onwards pursuing part-time work at Starbucks, clerical work at
a law firm, and a program of post-secondary studies that she successfully
completed.

·      
She has exhibited a significant measure of stoicism.

·      
She is presently able to function in the key areas of her life
including full-time employment, albeit with some discomfort and increased
fatigue, by making the necessary accommodations, although she was required to
make significant adjustments in the first four to six months post-accident.

·      
She pursues physical exercise but at a level of lesser intensity
than pre-accident.

·      
She is not presently taking any prescription medication and there
is no evidence that the injections to reduce pain by Dr. le Nobel continue.

·      
She had to give up her aspiration to become a police officer
after the accident due to her inability to engage in rigorous physical training
and re-take the PARE test.

·      
There is no significant evidence of impairment of her social and
family relationships due to injuries sustained in the accident.

·      
There is no evidence that the plaintiff suffers from significant
depression or other mental health problems arising from injuries sustained in
the accident.

[108]    
In light of the above, I find that the plaintiff is entitled to a substantial
award of non-pecuniary damages, although not in the range submitted by her
counsel.

[109]    
In the present case I award $85,000 in non-pecuniary damages.

Special damages (including the claim for car rental)

[110]    
I award the plaintiff $4,098.26 in special damages. This amount is
derived from the plaintiff’s schedule of special damages as listed with
receipts in Exhibit 14A. These amounts relate to physiotherapy, parking, and
therapeutic items recommended by doctors.

[111]    
The plaintiff also claims reimbursement for car rental costs from August
1, 2008 to March 18, 2009, in the amount of $5,591.68. The cost of the initial
car rental while the plaintiff’s vehicle was being repaired (from July 21, 2008
to August 1, 2008, in the amount of $362.45) was paid on behalf of the
defendants. I note that the plaintiff’s vehicle was repaired after the accident
and returned to her in fairly quick order and presumably by August 1, 2008, as
the defendants covered the cost of car rental to that date.

[112]    
It is the plaintiff’s position that Dr. Eksteen recommended that she not
drive a vehicle with a standard transmission, which her vehicle was, during her
recovery. Therefore, she claims that she ought to be reimbursed for her rental
of a series of cars with automatic transmissions for a further 7.5 months.

[113]    
The defendants dispute the amount that the plaintiff claims for this car
rental. Their counsel points to the fact that in addition to the plaintiff
driving the rental vehicle, Mr. Ordano also became an authorized driver of the
rental vehicles and very significant mileage was recorded on them, including
use that extended into Washington State.

[114]    
 I find that the plaintiff had a duty to mitigate in terms of the
subsequent rentals of a vehicle with an automatic transmission as recommended
by her caregivers. Given the nature of the plaintiff’s injuries, in my view, it
is reasonable to reimburse her for a reasonable further period after the
accident to permit time for her medical situation to stabilize and to give her
opportunities to consult medical practitioners and receive advice. The first in
the series of bills for which the plaintiff claims reimbursement covers the
period of August 1, 2008 to October 21, 2008. It is in the amount of $2,629.26.
I find in the particular circumstances of this case that it is appropriate for
the plaintiff to be reimbursed for that period only and I deny recovery of the
cost of further periods of car rental thereafter.

Future income loss

[115]    
The plaintiff claims loss of future income from ten weeks of employment
in order to devote herself to rehabilitation as recommended by Dr. Armstrong.
The actual net amount of this claim based on current pay stubs at the time of
trial is $6,489.90.

[116]    
When I consider this claim in the context of the overall program
recommended by Dr. Armstrong I note he suggests an intensive program of
rehabilitative exercise designed by a physiotherapist who the plaintiff sees
three times a week for six weeks. This is followed by a self-managed exercise
program that includes a great deal of walking in which she continues to see a
physiotherapist twice a month for up to a year. He recommends that she then
move to a program where she attends the gym to exercise three to four times a
week. Once she has made progress in her rehabilitative program, Dr. Armstrong
recommends that the plaintiff see a psychologist with experience in chronic
pain management for 20 sessions.

[117]    
It is entirely reasonable that the plaintiff have this opportunity to
pursue further rehabilitation and engage in pain management techniques and
therapy that may serve to improve her overall chances of pain reduction and at
least partial recovery. I grant this part of the plaintiff’s claim.

Loss of earning capacity

[118]    
The plaintiff seeks a large award for loss of earning capacity.

[119]    
Counsel for the plaintiff submits that her loss of earning capacity
should be assessed using an earnings approach as the shortfall between the
income from a policing career, compared to her future income in the general
insurance field. The plaintiff submits that passing the PARE test and being
accepted into the RCMP was a real and substantial possibility: see Reilly,
infra at para. 101.

[120]    
Based on the plaintiff earning $30,000 a year less in the general
insurance field than she would have as a police officer, after taking into
account positive and negative contingencies and calculating the net present
value of that amount over thirty years (to age 62) at a 2.5% discount rate, the
plaintiff seeks an award of $627,909 under this head of damages.

[121]     The
plaintiff’s counsel relies on the following authorities, namely:

Brown v. Golaiy, 1985 CanLII 149, 26 B.C.L.R. (3d) 353
(S.C.) [Brown]

Palmer v. Goodall, 1991 CanLII 384, 53 B.C.L.R. (2d)
44 (C.A.) [Palmer]

Kwei v. Boisclair, 1991 BCCA 645 [Kwei]

Reilly v. Lynn, 2003 BCCA 49 [Reilly]

Steward v. Berezan, 2007 BCCA 150 [Steward]

Djukic v. Hahn, 2007 BCCA 203 [Djukic]

Sinnott v. Boggs, 2007 BCCA 267 [Sinnott]

Ellis v. Star, 2008 BCCA 164 [Ellis]

Ashmore v. Banicevic, 2009 BCSC 211 [Ashmore]

Romanchych v. Vallianatos, 2010 BCCA 20 [Romanchych]

Perren v. Lalari, 2010 BCCA 140 [Perren]

Cikojevik v. Timm, 2010
BCSC 800 [Cikojevik]

[122]    
Alternatively, in the event that the Court finds the capital asset
approach to be applicable, counsel for the plaintiff submits that the
plaintiff, 28 years old at the time of the accident, and 31 years old at trial,
has a long employment life before her. The plaintiff is a less attractive
employee to potential employers and has lost the ability to take advantage of
all the job opportunities which might otherwise have been open to her. Counsel
for the plaintiff also submits that since being injured in the accident the
plaintiff will not be able to be employed in any type of work which requires
certain position or movements that would affect her back, hip or leg.

[123]    
The defendants rely on the same authorities as the plaintiff but to
different ends.

[124]    
The defendants’ position is that the plaintiff has not established that
she has suffered a diminishment of her capital asset as a result of any injury
sustained in the accident.

[125]    
Counsel for the defendants submits that it is mere speculation that the
plaintiff would have passed the PARE test absent the accident, and even more
speculative that she would have gained entry into the RCMP or a comparable
police force and had a long career as a police officer.

[126]    
The defendants also submit that there is no evidence that the plaintiff
is incapable of earning as much or more in fields other than policing, and
specifically as an insurance adjustor and making advancements in that career
path to claims’ manager.

[127]    
In the alternative, if the plaintiff is found to have a real and
substantial possibility that income will be lost in the future, then the
defendants submit that the capital assets approach from Brown is more
appropriate where the loss is less easily measurable because the plaintiff did
not already have an established career. The award must be adjusted to account
for positive and negative contingencies and must be based on evidence which the
defendants submit is lacking.

[128]    
Using the framework from Brown, counsel for the defendants
maintains that: the plaintiff was not rendered less capable overall from
earning income; the plaintiff is not less marketable or attractive as an
employee to potential employers; the plaintiff has not lost the ability to take
advantage of all job opportunities which might otherwise have been open to her,
had she not been injured; and the plaintiff is not less valuable to herself as
a person capable of earning income in a competitive labour market.

[129]    
To this end, he points out that the plaintiff obtained employment at a
law firm at the end of the summer 2008 and then obtained full-time employment
in the general insurance field where she continues to work.  Considering the
negative and positive contingencies, the defendants’ position is that the
plaintiff has failed to establish any diminishment of her capital assets as a
result of her accident.

[130]    
Counsel for both the plaintiff and the defendants agree on the framework
of legal analysis put forward by the plaintiff in his supplemental submissions,
(based on the law as summarized in Reilly, at para. 101, namely:

1.     Whether or
not the injury will result in a real and substantial possibility that income
will be lost in the future – bearing in mind that the test is not a ‘balance of
probabilities’ but an assessment as to whether or not a ‘real and substantial
possibility’ exists;

2.     The loss
is assessed, not calculated, based on the likelihood of the real and
substantial possibility occurring in the future;

3.     The Court
will use either the earnings approach as identified in Steenblok v.
Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.) or the capital asset
approach identified in Brown based on the four factors:

                         
I.         
the plaintiff will be rendered less capable overall from earning
income from all types of employment;

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

                     
III.         
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to her had she not been injured; and,

                     
IV.         
the plaintiff is less valuable to herself as a person capable of
earning income in a competitive labour market.

4.     Positive
or negative contingencies may be used to adjust the award; and,

5.     The
overall fairness and reasonableness of the award needs to be considered.

[131]     In
addition, I note the Court of Appeal decision in Perren comments on the
two approaches to the assessment of future loss of earning capacity:

[12] These cases, Steenblok,
Brown, and Kwei, illustrate the two (both correct) approaches to the
assessment of future loss of earning capacity. One is what was later called by
Finch J.A. in Pallos the ‘real possibility’ approach. Such an approach
may be appropriate where a demonstrated pecuniary loss is quantifiable in a
measurable way; however, even where the loss is assessable in a measurable way
(as it was in Steenblok), it remains a loss of capacity that is being
compensated. The other approach is more appropriate where the loss, though
proven, is not measurable in a pecuniary way. An obvious example of the Brown
approach is a young person whose career path is uncertain. In my view, the
cases that follow do not alter these basic propositions I have mentioned. Nor
do I consider that these cases illustrate an inconsistency in the jurisprudence
on the question of proof of future loss of earning capacity.

[132]     In Perrin,
after reviewing the jurisprudence, Garson J.A. for the Court, states:

[32] A plaintiff must always prove, as was noted by
Donald J.A. in Steward, by Bauman J. in Chang, and by
Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos and
Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[Emphasis in original.]

[133]    
In the present case I have found that the plaintiff’s evidence aimed at
proving the quantification of loss of earning capacity, by way of a comparison
between what she may have earned in the future as a police officer compared to what
she will earn as an insurance adjuster, falls short of the mark. I have
previously stated my reasons for those findings. Therefore, the earnings
approach is not applicable in this case.

[134]    
The plaintiff’s loss of earning capacity is not so easily measurable.
However, I am satisfied that she has suffered such a loss. I find that the
injuries she sustained in the accident and the assessment of their long-term
impact on her physical strength and stamina for the foreseeable future do
result in a real and substantial possibility that she will suffer future income
loss. That loss is to be assessed on the likelihood of a real and substantial
possibility of it occurring in the future.

[135]    
The plaintiff was 28 years old when the accident occurred. Some four
years later at trial she continued to struggle with the ongoing pain and
limitations from the injury to her left hip and thigh. Prior to the accident
she was a very physically active person who was returning to competitive horse
riding, doing strenuous physical training with the goal of passing the PARE
test and aspired to be a RCMP officer, a job that requires a measure of
physical fitness and strength. While I have found that I do not accept she
likely would have become a police officer, she possessed considerable physical
strength and endurance prior to the accident, for example as noted by Mr.
Ordano. She was pursuing her studies and working part-time at Starbucks at the
time of the accident. Like many young adults these days she was gradually
developing a future course of employment based on her abilities and job
availability.

[136]    
In terms of the first factor in Brown, I find that as a result of
injuries she sustained in the accident she has been rendered less capable
overall from earning income from all types of employment. In my view, it is
overly narrow and ill-founded to adopt the view that because this young woman
has found sedentary employment post-accident that she has been able to keep, in
part by her own dogged efforts to keep up with her work in the face of the
fatigue and intermittent pain she experiences, that she has not been rendered
less capable overall in terms of income from future employment as a result of
her injuries. Her course in life was evolving when the accident occurred. Given
the prognosis of Dr. Armstrong and the other doctors, her foreseeable future
does not include a return to her pre-accident level of physical strength and
endurance. In terms of the second factor in Brown, while the plaintiff
goes to some length not to make an issue of her physical limitations at her
present work, it is a real and substantial possibility that even sedentary
employment may become problematic for her in the future and she will be
therefore less marketable and attractive to potential employers, not to mention
that more physical types of employment are likely beyond her future
capabilities. In relation to the third factor in Brown, the injuries she
sustained in the accident and their aftermath have clearly limited her future
employment options. Finally, in terms of the fourth Brown factor, it is
clear that the plaintiff is less valuable to herself as a person capable of
earning income in a competitive labour market. She has lost her edge in terms
of drive and energy, although she has compensated reasonably well. She has lost
the ability to pursue forms of employment that include a component of
performance based on physical strength and endurance.

[137]    
Among the cases cited to me, I find the Court of Appeal decision in Sinnott
to be most relevant. It is an appeal of a damage award for loss of earning
capacity arising from injuries sustained by a young woman (16 years old) in a
motor vehicle accident. She was found to be likely to continue to suffer from
neck and shoulder pain and headaches indefinitely and to likely have trouble
with strenuous and physically demanding work.

[138]    
The appellant claimed that Brown only supported an award in
circumstances where a plaintiff is able to continue an occupation but their
earning capacity is negatively affected.

[139]    
The Court of Appeal held that in situations where the plaintiff is young
and faces limitations in their ability to work competitively in jobs that may
have previously been open to them, they should be compensated.  The fact that
the appellant did not have clear plans and was competing successfully for
employment did not disentitle her to compensation for lost earning capacity or
require that an award be made only under the head of damages for non-pecuniary
losses. The trial judge’s award of $30,000 for loss of earning capacity was upheld.

[140]    
Also of guidance is the Ashmore case, which involved a plaintiff
who sustained injuries in a motor vehicle accident and was working for IBM as a
media director. L. Smith J. reviewed the law in relation to Brown and
the capital asset approach and concluded that the Brown analysis
survives the comments in Steward and the latter does not modify the test
to require a higher standard of proof than the “substantial possibility” test.
Citing Djukic, the learned judge stated that Steward only applies
to specific facts where the plaintiff did not contemplate any return to the
trade and showed no sign that his current employment was affected by the
accident. In this case, the Court had no difficulty finding that the plaintiff
was made less capable overall of earning income from all types of employment
and faced limitations on his ability to work competitively in jobs that were
previously open to him. The Court also weighed the fact that at the time of
accident, the plaintiff had not had a clear record of making money on projects
which may in the future have been open to him. He was awarded damages of
$60,000 for loss of earning capacity.

[141]    
Having considered the evidence and the relevant legal principles based
on a capital asset approach, I find that a fair and reasonable award for loss
of earning capacity in this case is $75,000. In arriving at this amount, I take
into account that the medical limitations upon the plaintiff arising from her
injuries are likely to be prolonged. Weighing in the other direction is the
fact that the plaintiff was relatively young at the time of the accident and
her career path was yet to be realized.

Cost of future care

[142]     The test
to be applied when the Court considers awarding the cost of future care is set
out by McLachlin J. (as she then was) in Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 84, as follows:

[…] The test for determining the appropriate award under the
heading of cost of future care, it may be inferred, is an objective one based
on medical evidence.

These authorities establish (1) that there must be a medical
justification for claims for cost of future care; and (2) that the claims must
be reasonable.

[…] The award for cost of care
should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health.

[143]    
I have previously set out the recommendations of Dr. Armstrong regarding
the program of future care he recommends for the plaintiff. Both Dr. le Nobel
and Dr. Eksteen indicated that the plaintiff might benefit from ongoing
assistance from a program of exercise-based physiotherapy or a program of
physical therapy developed by a kinesiologist or personal trainer for up to
nine or ten months. Both Dr. le Nobel and Dr. Eksteen indicated that the
plaintiff may need prescribed medication in the future to deal with pain or
problems sleeping.

[144]    
The plaintiff seeks an amount of $10,000 as reasonable estimate of the
cost of her future care given the recommendations of the doctors.

[145]    
I note that the 20 sessions with a psychologist at $175 per session will
cost $3,500. Mr. Kotopski, the physiotherapist recommended by Dr. Armstrong
charges $55 per visit based on his invoices from 2012. The intensive regime of
physiotherapy for six weeks with three visits per week, followed by two visits
per month for up to a year easily exceeds $2,000. A gym membership according to
Dr. Armstrong is approximately $600 per year. It is not unreasonable that the
plaintiff will require this kind of rigorous exercise regime (that includes
working out in a gym) on an ongoing basis for up to four years to assist with
pain management, at an estimated cost of $2,400. A further amount for
prescribed medications of $2,000 is reasonable. In addition, she will face
transportation costs to attend these various sessions. I find that an award of
$10,000 for the cost of future care is reasonable in all the circumstances.

Costs

[146]    
Unless there are offers which have been exchanged which affect the
matter of costs, I find that as the successful party, the plaintiff is entitled
to her costs at Scale B. If parties still wish to make submissions based upon
offers that have been made, then such can be arranged through the registry.

[147]    
I decline to award special costs as sought by the plaintiff for those
days of the trial spent on the issue of liability. Although the defendants’
case to resist a finding of liability was weak it was not totally without
merit. It did serve to extend the trial by at least two days. However, the test
for special costs – that they are not to be awarded “unless there is some form of
reprehensible conduct, either in the circumstances giving rise to the cause of
action, or in the proceedings, which makes such costs desirable as a form of
chastisement”- is not met in this instance: Stiles v. Workers’ Compensation
Board of British Columbia (1989), 38 B.C.L.R. (2d) 307 at 311 (C.A., per
Lambert J.A.).

Conclusion

[148]    
Therefore, based on these reasons I find that the defendants are jointly
and severally 100 percent liable for the accident.

[149]    
I grant the plaintiff the following relief:

1.     $85,000 in
non-pecuniary damages;

2.     $6,727.54
in special damages which includes $2,629.26 in car rental costs;

3.     $6,489.90
in future income loss;

4.     $75,000 in
loss of earning capacity;

5.     $10,000
cost of future care;

6.     Pre-judgment
interest at the prevailing rate; and,

7.     Costs at
Scale B.

“The Honourable Madam Justice
Arnold-Bailey”