IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130607

Docket: M102713

Registry:
Vancouver

Between:

Tamara Lees

Plaintiff

And

Corilynne
Diane Compton, Andrew James Compton and Canadian Road Leasing Company/Compagnie
De Location Canadian Road

Defendants

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

INTRODUCTION

[1]            
On September 28, 2008, the plaintiff, Tamara Lees, was injured in a
motor vehicle accident when her vehicle was struck by a vehicle driven by the
defendant, Corilynne Diane Compton.  Liability for the accident has been
admitted. The trial was limited to an assessment of the plaintiff’s damages.

[2]            
The plaintiff asserts that she has a permanent painful and disabling
condition that has and will continue to affect her daily life and has prevented
her from enjoying many activities. She submits that as a result of her injuries
she has been rendered less capable of earning income and has lost the ability
to take advantage of all income earning opportunities that would have been
available to her if she was not injured.

[3]            
The defendants do not dispute that the plaintiff sustained some soft
tissue injuries as a result of the accident.  They submit however that the
impact of those injuries on the plaintiff has not been as significant as she claims. 
They submit that she made a substantial recovery within a year of the
accident.  They submit that some of her complaints were likely contributed to
by a subsequent accident which was the fault of the plaintiff.  They submit
that the plaintiff’s claim for past income loss is limited and her claim for
loss of future earning capacity is not supported by the medical or factual
evidence.

BACKGROUND

A. Personal History

[4]            
The plaintiff was born in April 1988 and is currently 25 years old.  She
was raised in West Vancouver where she resided with her parents until moving to
Montreal in September 2012 to attend McGill University.

[5]            
The plaintiff graduated from high school in 2006.  She then attended
Capilano College and in August 2008 transferred to Simon Fraser University
(“SFU”) where, in April 2012, she obtained a Bachelor of Arts degree with
honours in History and English.

[6]            
In September 2012, the plaintiff commenced studies at McGill University
where she is enrolled in a program to obtain a Master’s degree in history.  She
intends to then obtain a Ph.D. and ultimately work as a university professor.
The plaintiff’s goal to become a university professor predates the accident.

[7]            
In Montreal she lives by herself in a studio apartment close to campus.

[8]            
Prior to the accident the plaintiff was in good health.  She described
herself as being quite social, outgoing and carefree.  Growing up, she had been
very active in sports.  In high school she was a competitive mountain biker and
snowboarded frequently.  At the time of the accident, she was playing in a
competitive field hockey league.

B. The Accident and
Aftermath

[9]            
On September 28, 2008, the plaintiff was driving northbound on Burrard
Street accompanied by her boyfriend, Ryan Weymark.  Her vehicle was struck on
the driver’s side by a vehicle driven by Ms. Compton, who was proceeding eastbound
on West Second Avenue.

[10]        
Photographs of the two vehicles show heavy damage and deployed airbags. 
The damage to the plaintiff’s 2008 Honda Civic was in excess of $16,000.  The
vehicle was declared a total loss.

[11]        
Police, firefighters and ambulance attended following the accident.  The
plaintiff was examined at the scene by the ambulance crew’s paramedics but was
not transported to hospital.  She subsequently called her parents who came and
picked up the plaintiff and her boyfriend.

[12]        
Immediately following the accident, the plaintiff recalls experiencing
pain in her left arm and head.  Later that evening she began experiencing pain
in her neck, shoulders and back.

[13]        
The plaintiff attended her family doctor, Dr. Jansen, the day following
the accident.  She took a week off school and two weeks off her sales job at
American Eagle.  She missed one school assignment for which she received a
doctor’s note.

[14]        
Ms. Lees testified that she suffered significant neck pain over the
first three years following the accident.  She indicated she has experienced
some improvement although her symptoms still flare up on a regular basis.  She
testified that her neck pain gets worse as the day progresses.

[15]        
She testified that the injuries to her shoulder blades continue to cause
constant daily pain.  Similarly her middle and upper back symptoms have
remained consistently painful since the accident. She said that the injury to
her lower back mostly resolved after a year, although she still experiences periodic
flare-up.

[16]        
Ms. Lees testified that on a weekly basis the pain in her upper back
will radiate into her chest and specifically her sternum.  She says this has
caused her to experience panic attacks.  Her last significant panic attack
occurred in the summer of 2012 during a car trip from Tumbler Ridge to Elkford with
her boyfriend.  Despite numerous stops along the way to accommodate the
plaintiff’s symptoms, her pain resulted in a visit to the hospital Emergency
Room in Fernie.

[17]        
The plaintiff began to experience headaches following the accident.  The
frequencies of her headaches have abated over time, although she still
experiences them approximately once a week when her neck symptoms flare up.

[18]        
Ms. Lees testified that her injuries have caused her considerable
sleeping difficulties.  She has trouble with falling and staying asleep because
of pain.

[19]        
In the first few months following the accident, the plaintiff says she
was anxious about driving or riding in a vehicle, although the severity of that
anxiety has decreased over time.  She would ask her parents or boyfriend to
drive her where she needed to go as she was reluctant to drive herself.

Post-Accident Treatments

[20]        
Between February 2010 and September 2012, the plaintiff attended 59
massage therapy treatments.  Between October 1, 2008, and January 15, 2010, she
attended 77 physiotherapy appointments.  She had one further physiotherapy
appointment in June 2011. The plaintiff testified that the physiotherapy
stopped being of assistance to her after six or eight months.  She found that she
obtained short term benefits from the massage therapy but it did not provide
long term relief.

C. Impact of Injuries

[21]        
The plaintiff testified that the injuries have impacted her daily life.
She has become less social and more withdrawn. She does not commit to activities.
She is no longer able to ski or snowboard.  She says that when she tried biking
it exacerbated her injuries. Prior to the accident she practised and played
field hockey three times a week.  She says that subsequent to the accident,
other than one practise, she has not played field hockey.  She tried jogging
but found it too hard.

[22]        
Post accident the plaintiff has tried yoga and Pilates but has found it
difficult. She tried wake surfing but was concerned about aggravating her injuries.
She did learn to swim but found it neither helped nor exacerbated her injuries.

[23]        
The plaintiff still attends the occasional party and has taken several vacations
with her family or her boyfriend and his family. She says she is less inclined
to commit to social events due to her pain.

[24]        
The plaintiff says she has difficulty carrying heavy objects such as
school books and groceries. She found it hard to do household chores such as
laundry, cleaning her room and bathroom and vacuuming. After the accident her
parents often did such tasks for her.

[25]        
The plaintiff says her injuries have impacted her school work.  She says
she cannot sit for extended periods of time which impacts on her studying. Her
pain medication can make her “foggy”.

[26]        
The plaintiff testified that she worries about her future and how she
will be able to support herself. She is concerned how she will mange if she
becomes pregnant.

D. Work History

[27]        
The plaintiff’s employment history commenced with summer employment in
2005 and 2006 at a bike camp. In 2006 she began working 15 hours a week at the
Gap. She left the Gap in 2007 and began working as a part-time sales associate
at American Eagle, a position she had at the time of the accident.

[28]        
At American Eagle the plaintiff earned between $8.50 and $9.00 per
hour.  At the time of the accident, she worked at least four to eight hours a
week, and 20 hours a week during holidays and when the store received shipments.

[29]        
Following the accident, the plaintiff took two weeks off work. When she returned
she worked reduced shifts.  She testified that while at work she struggled to
perform the various duties required of her, including lifting boxes and stacks
of clothing or bending down to fold clothes.  She said that when she returned
to work after her accident her supervisor was very accommodating and excused
the plaintiff from performing strenuous activities.  She gave the plaintiff a
positive performance evaluation.

[30]        
In the spring of 2009, her supervisor was replaced.  Ms. Lees testified
that the new supervisor was less sympathetic to her difficulties and reduced
her amount of shifts.  In August 2009, she quit her job.  She said she did so
because her injuries made it too difficult for her to work.

[31]        
Ms. Lees did not confront her supervisor about her poor treatment.  She
said that after she left she did lodge a complaint with the head office of
American Eagle.  The American Eagle separation form indicated that the
plaintiff’s reason for leaving her employment was that she had accepted another
job.  In her letter of resignation, she thanked American Eagle for the
opportunity they gave her and said she got great benefits from working there. 
She did not mention anything about the car accident or any difficulties that
she had while employed.  Nor did she complain about how she was treated by her
new supervisor.

[32]        
In the fall of 2009, the plaintiff worked for a short time as a tutor.
She did not work again until September 2011 when she worked as a research
assistant at SFU, a job she continued to do until August 2012.  She said she
did not seek out other work after leaving American Eagle as she did not feel
capable of functioning in the retail, sales or service industry.

[33]        
Ms. Lees is presently living in Montreal and completing her Master’s
degree at McGill.  She has three classes and only attends school one day a
week.  She will complete the program in the summer of 2013.

[34]        
The plaintiff presently works a few hours a month taking photographs for
an SFU professor.  She says her injuries prevent her from working as a
teacher’s assistant at McGill.

[35]        
When she completes her Master’s degree she plans to take one year off
and then enroll in a Ph.D. program in September 2014. She testified that the Ph.D.
program will take 5 years to complete.  She hopes to start work as a university
professor in 2018.

E. Subsequent Accidents

[36]        
The plaintiff has been in three subsequent motor vehicle accidents.  The
first accident occurred on May 9, 2009. While the plaintiff was driving, she rear-ended
a Mercedes Benz vehicle with sufficient force that it was pushed into the rear
of a truck in front.  The accident was the plaintiff’s fault.  The Mercedes
Benz was a total loss.  The plaintiff’s vehicle required $7,600 in repairs.

[37]        
On December 12, 2009, the plaintiff was a passenger in her father’s
vehicle when it was rear ended in the state of Washington.  The vehicle she was
in sustained about $4,000 in damages.

[38]        
On April 2, 2011, the plaintiff was walking in a parkade at SFU when a
vehicle backed up and struck her.  She went to the SFU health clinic.

[39]        
The plaintiff said that she was not injured in any of these accidents. 
She said they did not in any way exacerbate her existing injuries she sustained
in the September 2008 accident.

MEDICAL REPORTS

[40]        
The plaintiff filed reports from Ms. Lees’ family doctor, Dr. Jansen,
and a rheumatologist, Dr. Shuckett.  Dr. Jansen and Dr. Shuckett both attended
trial and were cross-examined.  The defendant filed a report of Dr. Oliver, an
orthopaedic surgeon.  The plaintiff did not require Dr. Oliver’s attendance for
the purposes of cross-examination.  While the plaintiff testified that she has
suffered from anxiety and panic attacks, she led no medical evidence relating
those conditions to the accident.

A. Dr. Jansen’s Report

[41]        
Dr. Jansen’s report is dated May 6, 2012. She first saw Ms. Lees the day
following the accident and has seen her on several occasions thereafter.  Her
diagnosis of Ms. Lees’ injuries sustained in the motor vehicle accident is
myofascial stretch and strain of the cervical and thoracic spine with likely
subsequent development of early and mild osteoarthritic changes at T7/8.  She
opined that a full recovery to her pre-motor vehicle accident status was
unlikely due to the extensive therapy undergone to date.  She expressed
concerns that when she enters grad school for her Master’s degree Ms. Lees will
experience a recurrence of symptoms.  She found there was no period of
permanent disability but that her injuries did prevent her from participating
in field hockey and other strenuous sports activities.  She found that the
myofascial injury will continue to cause pain in Ms. Lees’ neck and thoracic
spine, particularly if she is entering a profession which requires prolonged
sitting, bending or lifting.  She anticipated that Ms. Lees would require
regular treatments in the upcoming year or two while she works towards
achieving her Master’s degree and hopefully thereafter she would only need
massage or physiotherapy on a monthly basis.

B. Dr. Shuckett

[42]        
Dr. Shuckett is a rheumatologist.  She assessed Ms. Lees on April 28,
2012.  On examination, she noted several objective signs of injuries including
palpable muscle firmness and spasms over the neck, shoulder and spinal
muscles.  Dr. Schuckett made the following diagnoses:

1)       the
neck injury, which is most likely musculoligamentous in nature with soft tissue
injury, particularly on the right side of the neck;

2)       myofascial
pain syndrome of the neck and shoulder girdle region, right side greater than
left, and right parascapular and parathoracic spine muscle spasm and myofascial
pain;

3)       injury
to the thoracic spine, particularly on the right side, with musculoligamentous
injury;

4)       headaches, most likely
cervicogenic, without migraine features; and

5)       impingement of both
shoulders.

[43]        
Dr. Shuckett testified that the plaintiff does not have chronic pain
syndrome.  She believed that the cause of her injuries was due primarily to the
motor vehicle accident.  She noted that Ms. Lees’ symptoms were described in close
proximity to the motor vehicle accident and have been consistent over time. 
She relied on the history that had been given to her by Ms. Lees.

[44]        
Dr. Shuckett noted that once pain had been present for such a long
period after the onset of soft tissue injuries, the chance of the soft tissue
injuries completely regressing or significantly improving diminished.  Given
that the plaintiff remained symptomatic three and one-half years after the
accident, Dr. Shuckett opined that while it was possible that her symptoms
might improve or ameliorate that it was more probable that she was going to be
left with her current symptoms for the foreseeable future.

[45]        
With regard to treatment, she believes Ms. Lees should try aquafit. 
While acknowledging that massage therapy did not influence the natural history
of her symptoms, she believed that message therapy could be rationalized if it
gives her some improvement.

C. Dr. Oliver

[46]        
Dr. Oliver examined the plaintiff and provided a report dated August 21,
2012.  He agreed with Dr. Jansen’s opinion that the plaintiff sustained
musculoligamentous soft tissue injuries at the neck and thoracic spine.  He questioned
Dr. Jansen’s diagnosis of the development of early osteoarthritic changes.  He
was in general agreement with the report of Dr. Shuckett except for her
findings of impingement in the shoulders.  With respect to prognosis, he
suggested that with appropriate and regular activity, the symptoms that Ms.
Lees experiences may further improve.  He agreed with the recommendation for
regular exercise including stretching and appropriate conditioning as applied
in aquafit exercise.  He did not believe that regular massage therapy would be
of benefit on a long term basis.

ADDITIONAL EVIDENCE

A. Plaintiff’s Witnesses

[47]        
In support of her case, the plaintiff called her parents, Mr. and Mrs.
Lees and her boyfriend’s mother, Lynn Weymark.  Her father recalls picking up
his daughter at the accident scene.  He observed that she was shaken up and
appeared to be in a fair amount of pain.  Both her parents testified how they
continued to observe their daughter favouring her neck and back on a regular
basis.  Mrs. Lees testified the plaintiff used ice and hot packs and took hot
baths to ease her pain.  She sees her constantly shifting in her seat and
standing up to stretch.  She has witnessed a decline in her energy level and observed
that she has trouble carrying things.

[48]        
The plaintiff’s parents confirmed that she stopped snowboarding and
mountain biking after the accident, and that she learned to swim in an effort
to alleviate her symptoms.  They described how their daughter has generally
become less sociable and more subdued.

[49]        
Mrs. Lees testified she would assist the plaintiff in carrying items
such as her course books.  She would also massage the plaintiff’s back from two
times a day to two times a week in an effort to alleviate her pain.  In the six
months following the accident, Mrs. Lees often drove the plaintiff to where she
needed to go due to the plaintiff’s fear of driving herself.

[50]        
Since the accident, when she was living at home, the plaintiff is asked
to do fewer chores since the accident.  Mrs. Lees now assists the plaintiff
with her laundry and cleans the bathtub on her behalf.

[51]        
Ms. Weymark described family activities that they have  invited the
plaintiff to since the accident.  The plaintiff has declined biking trips,
skiing lessons and has already declined to attend a canoe trip the Weymarks
planned for the upcoming summer.

[52]        
I note that the plaintiff did not call any contemporaries as witnesses. 
She did not call anyone she worked with at American Eagle. She did not call any
friends with whom she socialized or played sports. While I was advised that the
plaintiff’s boyfriend, due to work commitments in Tumbler Ridge, could not
testify at the trial, it was not suggested that he could not have testified by
deposition or some other means.

[53]        
The plaintiff did call Ms. Shelley Welch who was on her field hockey
team, the Vipers, at the time of the accident.  Her evidence was limited to
testimony that other than coming to one practice, Ms. Lees had not played field
hockey for the Vipers since the accident.  She, however, had no social
relationship with Ms. Lees and did not testify concerning the impact of the
injuries on her lifestyle.

B. Physiotherapy Records

[54]        
The defendants put to the plaintiff in cross-examination certain
excerpts from the clinical records of the physiotherapists who had treated her.
Plaintiff’s counsel agreed that the excerpts were admissible as business
records pursuant to s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124.

[55]        
 The plaintiff testified that as a result of the accident she gave up
field hockey, a sport that she loved and excelled at.  She said that following
the accident the only time she had attempted to play field hockey was when she
attended a practise approximately one month following the accident.

[56]        
The clinical records contain entries which contradict the plaintiff’s
evidence.  The plaintiff commenced attending West Vancouver Physiotherapy on
October 1, 2008.  She attended seven times in October and then returned on
November 26, 2008.  The clinical notes indicate that on November 26 the
plaintiff told the physiotherapist “intermittent neck sore with field hockey
and mid back sore with bending over – played two games”.

[57]        
Her next visit was on December 1, 2008.  On that occasion the
physiotherapist’s notes report that she stated “shooting pain playing field
hockey Saturday”.

[58]        
On January 20, 2009, she told the physiotherapist “Sore after field
hockey.  Good during, however”.

[59]        
On February 10, 2009, she is reported to have said “worse lately with
field hockey”.

[60]        
 Ms. Lees denied making any of those statements.  She insisted that the
only time she attempted to play field hockey subsequent to the accident was
when she attended at a practice approximately one month post-accident.

[61]        
The plaintiff testified that subsequent to the accident she had
attempted running on a few occasions, but the longest she had run was 15
minutes.  She denied she had ever run as far as 5 or 10 kilometres.

[62]        
On July 16, 2009, the notes of the physiotherapist indicated “Ran 10k
Tuesday”.  On September 9, 2009, the physiotherapist’s notes state “Light run
5k”.

[63]        
Again, as in relation to the field hockey notes, Ms. Lees denies that
she had run those distances and testified that the physiotherapist’s notes are
in error.

[64]        
The plaintiff gave evidence that she had difficulty studying.  She
denied that she would study 12-14 hours per day or ever study all night. Her
evidence on these points was again contradicted by the physiotherapist’s clinical
notes. On October 5, 2009, the clinical notes state “studying 12-14 hours
daily”. The notes for December 9, 2009, state ‘had 3.5 all nighters last
wk.”  Again Ms. Lees says the notes are in error.

DISCUSSION

[65]        
This case is dependent on the plaintiff’s subjective reports of pain and
how her injuries have impacted her life. In Price v. Kostryba, [1982] 70
B.C.L.R. 397 (S.C.), Chief Justice McEachern cautioned that courts must proceed
with care in dealing with cases where there is minimal objective evidence of
continuing injury.  He said at 399:

In Butler v. Blaylock, decided 7^th October
1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved.  I
then said:

I am not stating any new principle when I say that the court
should be exceedingly careful 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.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer.  But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[66]        
In this case, the plaintiff’s injuries are largely subjective in nature.
While the defendants acknowledge and I find that the plaintiff did suffer soft
tissue injuries, the difficult question is whether the extent and duration of
those injuries have been as significant and serious as the plaintiff alleges in
her evidence.

[67]        
There is little controversy in the medical reports themselves.  The medical
professionals are in general agreement that the plaintiff sustained musculoligamentous
soft tissue injuries at the neck and thoracic spine.  They also are in
agreement that she remains symptomatic. I agree with Dr. Shuckett that while
there might be some opportunity for improvement or amelioration of the
symptoms, she is probably going to be left with her current symptoms for the
long term.

[68]        
The more difficult question is the impact that these injuries have had
on the plaintiff’s life.  The plaintiff suggests that the injuries have had a
significant impact on her life.  She says she has been forced to give up sports
and is no longer capable of holding down a part-time job.  The plaintiff does
acknowledge that her long time goal of being a university professor remains
intact but submits that her injuries will in the future likely impact on her
ability to fulfill the functions of that employment.

[69]        
The excerpts in the clinical records suggest that the plaintiff’s
limitations are not as great as she claims.  The records clearly put in
question certain of the plaintiff’s evidence and raise issues as to her
credibility.  The records indicate that the plaintiff has misled the Court with
respect to playing field hockey subsequent to the accident, running subsequent
to the accident, and the impact of the accident on her study habits.

[70]        
In Edmondson v. Payer, 2011 BCSC 118 [Edmondson], N. Smith J., at paras. 26-38,
discussed the use that could be made of clinical records.  He noted that
statements made by a party, including a description of their symptoms, are
evidence of the fact that the plaintiff made the recorded statements on those
occasions.  When the recorded statements are inconsistent with the plaintiff’s
evidence at trial, they may be used in cross-examination to impeach the
plaintiff’s credibility.  Unlike prior inconsistent statements of an ordinary
witness, prior inconsistent statements of a party may also be treated as
admissions and accepted for the truth of their content.

[71]        
In Edmondson, N. Smith J. pointed out certain concerns in
relation to clinical records including the fact that they are usually not
intended to be a verbatim record of everything that was said and the records
may only be a brief summary or paraphrase. Those concerns are real and can, in
many cases, diminish the importance of a specific clinical note.

[72]        
The plaintiff submits that the physiotherapy records with respect to
field hockey, running and studying are unreliable and inaccurate.  In this
regard, they refer to the evidence of the plaintiff, her parents, Ms. Weymark
and Ms. Welch. They note that the defendant did not call any of the
physiotherapists to confirm the accuracy of the records, or to confirm whether
they were written contemporaneously or at the end of their shift after having
seen a number of other clients.

[73]        
In the course of the trial the plaintiff admitted that the physiotherapy
notes were business records and admissible pursuant to s. 42 of the Evidence
Act.  By definition, that means the document was made in the usual and
ordinary course of business and it was in the usual and ordinary course of the
business to record in that document a statement of the fact at the time it
occurred or within a reasonable time thereafter.  The notes record information
that would be of importance to a physiotherapist in formulating an appropriate
treatment plan. It is not the type of note which one would expect would be
wrongfully recorded.

[74]        
While I acknowledge the comments of N. Smith J. in Edmundson that
clinical records must be viewed with caution, in this case there are eight
separate notes that are in issue.  With regard to each note, the plaintiff
claims the physiotherapist is wrong and she never gave the information in
question because the information sets out activities in which she did not
participate and indeed could not participate because of her injuries.

[75]        
On the evidence before me I cannot disregard the physiotherapist’s
notes.  While it is possible that a clinical note may be in error it is highly
improbable that there would be eight such errors. There is also little evidence
that contradicts the notes. As noted earlier, other than Ms. Welch, the
plaintiff did not call any of her contemporaries as witnesses and Ms. Welsh’s
evidence was limited to her experience on one field hockey team.

[76]        
I find that the plaintiff made the statements to the physiotherapist
that are recorded in the clinical notes. Those statements raise significant
questions concerning the plaintiff’s credibility.  Her evidence must be viewed
with great caution.

[77]        
The statements made to the physiotherapist lead to the conclusion that
the impact on the plaintiff’s life of the injuries she suffered in the accident
is not as great as she now alleges.  That said, I do accept that the plaintiff
was injured in the accident.  The various notes concerning playing field hockey
reflect that fact.  Each of the entries indicates that she suffered discomfort
while playing field hockey.

[78]        
The running references are more problematical.  The significance of the
plaintiff going for a 5 or 10 km run is not confined to her credibility.  It
also gives insight into her recovery and the impact of the injuries.  It would
be a rare occasion for an individual to spontaneously run 10 km.  Each year in
Vancouver thousands train for several months to learn to run such a distance. 
The plaintiff’s reports of significant ongoing pain and disability are
inconsistent with such an accomplishment.

[79]        
 Similarly, throughout her testimony the plaintiff stated she had
difficulty studying.  She denied studying 12 to 14 hours per day or studying
all night.  Again, her evidence is contradicted by her reports to the
physiotherapist.

[80]        
I note that the physiotherapist’s notes concerning running and studying
occur within 10 to 14 months of the date of the accident.

[81]        
I cannot find on the evidence that the subsequent accidents aggravated
the plaintiff’s injuries.  The at-fault accident occurred on May 9, 2009.  The
clinical notes concerning the plaintiff’s 10 and 5 km runs were on July 16 and
September 9, 2009.  If the plaintiff had suffered any significant injuries in
the May 9, 2009 accident, it is most unlikely she would have been able to
embark on such runs so soon thereafter.

[82]        
Similarly, there is no basis to conclude that the plaintiff suffered
injury in either the December 12, 2009, or April 2, 2011 incidents.  In both
those cases, the plaintiff was not at fault.  If she had been injured in those
accidents, there would be no reason to claim otherwise.

[83]        
I find the plaintiff was injured in the accident.  As a result of the
accident, she suffered soft tissue injuries which continued to cause her some
difficulties.  The injuries, however, did not impact on her life to the extent
that she has claimed.

DAMAGES ASSESSMENT

A. Non-pecuniary Damages

[84]        
The plaintiff seeks $100,000 for non-pecuniary damages.  She submits she
has a permanent painful and disabling condition that has and will continue to
affect her daily life and has removed her from her athletic passions.  She
relies on the following cases: Clark v. Kouba, 2012 BCSC 1607
($85,000), Crane v. Lee, 2011 BCSC 898 ($100,000); Kilian v. Valentin,
2012 BCSC 1434 ($75,000); Klein v. Dowhy, 2007 BCSC 1151 ($75,000); and MacKenzie
v. Rogalasky, 2011 BCSC 54 ($100,000).

[85]        
The defendants submit an award between $35,000 to $40,000 would be
appropriate for the plaintiff’s non-pecuniary damages.  They rely on Sharpe
v. Tidley, 2009 BCSC 948; Sandher v. Hogg, 2010 BCSC 1152 and Rozendaal
v. Landingin, 2013 BCSC 24.

[86]        
In each of the cases cited by the defendants, the court ordered $40,000
for non-pecuniary damages.

[87]        
In Harnett v. Leischner, 2008 BCSC 1589, Russell J. summarized
the law with respect to non-pecuniary damages at para. 80-81:

[80]      The purpose of non-pecuniary damage awards is to
compensate the plaintiff for “pain, suffering, loss of enjoyment of life and
loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at
para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While
each award must be made with reference to the particular circumstances and
facts of the case, other cases may serve as a guide to assist the court in
arriving at an award that is just and fair to both parties: Kuskis at
para. 136.

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

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life.

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

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

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

[88]        
In this case the plaintiff is a relatively young woman.  The injuries
have caused pain and suffering and will continue to do so into the foreseeable
future.  While the injuries have had some impact on her life, I find it is less
so than she alleges.  Since the accident she has graduated from university,
commenced a doctorate program and her life goal of being a university professor
remains intact.  There is no evidence that her relationship with her boyfriend
has been significantly impacted.

[89]        
While the various authorities cited by the parties are of value, they do
demonstrate a wide divergence of opinion in relation to injuries which have
much in common. In the circumstances of this case the authorities cited by the
defendant are more reflective of the plaintiff’s injuries.   I award the
plaintiff $45,000 in non-pecuniary damages.

B. Past Wage Loss

[90]        
The plaintiff claims $28,754 in past wage loss.  Following the accident,
the plaintiff missed two weeks of work at American Eagle and returned to a
reduction in shifts.  Absent the accident, the plaintiff submits that her 2008
income would have been $4,000 leaving a loss of $605.

[91]        
The plaintiff submits she would have continued to earn $4,000 per year
at American Eagle or a similar retail job during her 2009/2010 years at SFU. 
Her total claim for those years is $7,209 based on deducting from $8,000 the
$791 she in fact earned in 2009.

[92]        
The plaintiff submits that in 2011 and 2012 she would have earned money
as a research assistant at SFU.  She testified that a research assistant’s
position pays $25 per hour as opposed to $8.50 at American Eagle.  The
plaintiff submits she would have earned approximately $12,000 per year in 2011
and 2012.

[93]        
The defendant submits that the past wage claim should be limited to $160
representing the two weeks’ work she lost at America Eagle as a result of the
accident.  The defendant says there is not sufficient evidence to establish
that the plaintiff’s failure to work after leaving her position at American
Eagle was as a result of the accident.

[94]        
I am in general agreement with the defendant’s position.  The plaintiff
was able to maintain her employment at American Eagle for almost one year
following the accident.  She received satisfactory performance reviews.  She
clearly had the capacity to work but subsequent to leaving American Eagle she
chose not to.  In light of all of the evidence, I cannot accept her bald
assertion that she did not seek other work because she was not capable of
working in the service or retail industry.

[95]        
The onus lies on the plaintiff to establish her loss.  She called no
evidence of any witness to support her claims that she was not capable of
carrying out her duties at American Eagle.  Her letter of resignation to
American Eagle suggests that she quit because she had obtained a different job.

[96]        
The evidence also indicates that once the plaintiff enrolled at SFU, she
devoted more and more time to her studies.  This in turn would impact on her
ability to work part-time.  There is no evidence that she even attempted to
seek such employment.  I award $150 for past wage loss.

C. Loss of Future Earning
Capacity

[97]        
The plaintiff submits that the medical evidence establishes that the
plaintiff’s injuries are permanent and will cause restrictions in her ability
to perform in her chosen career.  The plaintiff submits she has been rendered
less capable of earning income as a result of her injuries and has lost the
ability to take advantage of all income earning opportunities that would have
been available to her had she not been injured.

[98]        
The plaintiff led expert evidence with regard to the salary of Canadian
females working fulltime as university professors.  That evidence indicated
that the lump sum present value of the plaintiff’s future income as a
university professor, assuming that she would receive earnings commensurate
with those of an average Canadian female university professor until her
presumed retirement no later than age 65 would be $1,528,688.  The plaintiff
seeks as award of $382,172 which amount represents 75% of what she otherwise
would have earned.

[99]        
The plaintiff led no evidence to support her claim that she would be
unable to fully carry out the duties of a university professor.  A functional
work capacity evaluation report was directed to her ability to perform
productive competitive employment as a research assistant.  No evidence was led
with respect to the plaintiff’s ability to work as a university professor.

[100]     The
defendants note there are no medical opinions or other evidence that would
suggest the plaintiff cannot work as a university professor or that she can
only work part-time as a university professor.  They say the work capacity
evaluation report is of no assistance to the court as it was in regard to a
different form of employment.  The defendants submit that the evidence falls
far short of the requirement of providing a substantial possibility of a future
event leading to an income loss.  The evidence as a whole is insufficient to
support the plaintiff’s claim for a loss of capacity and should be rejected.

[101]    
The principles that govern awards for loss of earning capacity were
summarized by Walker J. in Ruscheinski v. Biln, 2011 BCSC 1263 at pars.
114-119:

[114]    For an award under this head of damages to be made,
Ms. Ruscheinski must demonstrate a “substantial possibility that lost
capacity will result in pecuniary loss”: Perren v. Lalari, 2010 BCCA
140, at paras. 4, 7, 21, 31, and 32, 137 D.L.R. (4th) 729; Steward v.
Berezan, 2007 BCCA 150 at para. 17, 64 B.C.L.R. (4th) 152. A future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Perren at
para. 30.

[115]    If the plaintiff discharges the burden of proof,
then he or she may prove quantification of that loss by an earnings approach or
by a capital asset approach: Perren at para. 32; Chang v. Feng,
2008 BCSC 49 at para. 76, 55 C.C.L.T. (3d) 203. 

[116]    Garson J.A. wrote in Perren at para. 11
that where the loss cannot be measured in a pecuniary way, “the correct
approach [is] to consider the factors described by Finch J., as he then was, in
Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. In Brown, he said
at para. 8:

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

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

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

3.         The plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him,
had he not been injured; and

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

[117]    In para. 12 of Perren, Garson J.A. said:

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, through 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.

[118]    A useful summary of the principles governing the
determination and measure of an entitlement of an award for loss of income
earning capacity is set out at para. 32 in Perren:

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 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]

[119]    In Sinnott v. Boggs, 2007 BCCA 267, 69
B.C.L.R. (4th) 276, Mackenzie J.A. made these remarks at paras. 16-17 in a
case involving a 16-year-old female who was awarded $30,000:

[16]      In the case at bar, Ms. Sinnott is a young
person who has not yet established a career and has no settled pattern of employment.
In such circumstances, quantifying a loss is more at large. Southin J.A.
commented on this distinction in Stafford

[42]      That there can be a case in which a plaintiff is
so established in a profession that there is no reasonable possibility of his
pursuing, whether by choice or necessity, a different one is obvious. For
instance, on the one hand, if a judge of this Court were to be permanently
injured to the extent that he or she could not longer do physical, in
contradistinction to mental, labour, he or she would have no claim for
impairment of earning capacity because the trier of fact gazing into the
crystal ball would not see any possibility that the judge would ever abandon
the law for physical labour, assuming that immediately before the accident the
judge was capable of physical labour. But, on the other hand, if a plaintiff is
young and has no trade or profession, the trier of fact gazing into the crystal
ball might well consider whether the impairment of physical ability will so
limit his future employment opportunities that he will suffer a loss. See
e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43]      There is, if I may use the word, a continuum from
obviously no impairment of earning capacity from a permanent physical impairment,
no matter how serious the impairment, to a very large potential loss which must
be based on all the circumstances of the particular plaintiff.

[17]      I agree with those observations. Ms. Sinnott
is in a category of those who are young and without a settled line of work. The
trial judge has found that Ms. Sinnott faces limitations on her ability to
work competitively in jobs that were previously open to her. In my view, that
finding is an adequate foundation for the trial judge’s award.

[102]     In this
case, the plaintiff’s lifelong goal has been to be a university professor.  As
noted by the defendants, there is no evidence that her ability to obtain such
employment has been compromised by the accident.  There is, however, evidence
in the workplace evaluation report that there may be other jobs the plaintiff
will no longer be able to carry out, if in fact she does not reach her ultimate
goal as a university professor.

[103]     While the
plaintiff may desire to teach history for a living, there is no guarantee that
she will be successful in that regard. Not everyone who seeks such a career
succeeds. Given the circumstances, I find there is a substantial possibility
that the plaintiff’s lost capacity might result in pecuniary loss.  In the
circumstances of this case the loss cannot be calculated on a loss of earnings
approach.  I find that as a result of the injuries the plaintiff will be
limited from opportunities that might otherwise have been available to her.  In
addition, she may need accommodations from an employer which would make her
less employable.

[104]     It is not
possible to determine exactly what path the plaintiff’s life will take.  This
award cannot be made with any mathematical precision.  I would award $50,000
for loss of future earning capacity.

D. Future Care

[105]     The plaintiff
seeks a loss of future care award in the amount of $43,776.  That sum is
calculated based on the recommendations in the work capacity evaluation report
in relation to rehabilitation and ergonomic modifications and ongoing
physio/massage therapy.  The latter is based on the recommendations of Drs.
Jansen and Shuckett.

[106]     The
evidence does not justify the costs of a kinesiologist or a fitness
membership.  The plaintiff’s accident happened some five years ago.  On the
evidence before me, I cannot find that the costs of a fitness membership or a
kinesiologist should be borne by the defendants.

[107]     The
ergonomic modifications total $467.  I would make that award.

[108]     With
regard to physiotherapy and massage therapy, the plaintiff seeks $70 per week
for the first two years followed by an amount of $70 per month thereafter.  The
present value of the proposed award is $32,319. There is some evidence that
occasional massage therapy is of assistance to the plaintiff.  I cannot find on
the evidence, however, that it is necessary in the amount sought.  I would
award $10,000 for ongoing massage therapy.

E. Special Damages

[109]     The
plaintiff claims special damages of $10,217.31.  Approximately $700 of the
expense claim for prescription medications were not borne by the plaintiff, but
were in fact covered through her father’s extended benefits plan.  Mr. Lees
testified that he is a member of a union and that his entitlement to benefits
is part of the collective bargaining agreement.  The plaintiff is covered under
the plan as his dependent.

[110]     The
defendants submit that the plaintiff likely made a substantial recovery within
a year or so of the accident and that any expenses beyond that timeframe cannot
be their responsibility.  Further, they submit that on the evidence the
physiotherapy and massage therapy treatments after the first eight months or so
were of little assistance.

[111]     I find the
plaintiff is entitled to recover the special damages amounts claimed including
the full costs of the prescription medication.  Such sums are recoverable
pursuant to the private insurance exception to double recovery: Cunningham
v. Wheeler, [1994] 1 S.C.R. 359; Napoleone v. Sharma, 2008 BCSC
1746.  The massage and physiotherapy treatments were recommended by the
plaintiff’s treating physician.  The massage therapy provides short term relief
to the plaintiff.  I find those amounts are all recoverable.

F. In Trust Claim

[112]     The
plaintiff seeks an in trust claim with regard to services provided to the
plaintiff by her parents.  The services included driving the plaintiff for six
months after the accident, giving the plaintiff massages, assisting with the
plaintiff’s laundry, scrubbing her bathtub, carrying her books and occasionally
assisting with grocery shopping.

[113]     In Ellis
v. Star, 2008 BCCA 164, the Court of Appeal found that such awards must be
sufficiently extensive or related to the injuries to justify such an award.  On
the facts of this case, I find that such an award is not justified.  As
previously noted, the impact of the injuries on the plaintiff’s life is not as
severe as she has suggested.  Although I am certain her parents did provide her
with assistance from time to time, that assistance was not sufficiently
extensive as to merit an in trust award.

[114]     In summary
therefore, I award the following sums:

[115]    
Unless there are matters of which I am not aware, the plaintiff is
entitled to her costs.  If either party seeks a different determination on
costs, they should file written submissions within 21 days of the date of these
reasons.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice Richard
B.T. Goepel