IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130617

Docket: M121781

Registry:
New Westminster

Between:

Monique
Kondraczynski

Plaintiff

And

Gurdish
Kaur Rai, Joginder Singh Rai, John Doe and
the Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Fitch

Reasons for Judgment

A.       Introduction

[1]            
The plaintiff, Monique Kondraczynski, an employee of Canada Post,
sustained soft tissue injuries to the upper and lower divisions of her left
trapezius muscle in an automobile accident that occurred on November 6, 2007.  At
the time of the accident she was working as a temporary employee of Canada Post
but had been getting regular full-time hours as a letter carrier for about
three months. She was a few weeks shy of her fortieth birthday.

[2]            
The defendants admit liability.

[3]            
The plaintiff seeks non-pecuniary and special damages as well as awards
for past income loss and loss of future earning capacity.

[4]            
The parties are a considerable distance apart in quantifying the awards
that should be given in this case.

[5]            
The plaintiff submits that the chronic and disabling pain she has
experienced as a result of the accident is the sole reason she has been unable
to return, at least on a full-time basis, to the letter-carrying work she was
doing prior to the accident.  She testified that the injuries she sustained in
the accident have affected her quality of life and her ability to pursue
recreational activities she enjoyed prior to the accident.  She contends that
work-related injuries she suffered after the accident to her right knee and low
back were neither persistent nor disabling, as were the injuries she sustained
in the motor vehicle accident.

[6]            
The defendants submit that the evidence supports a finding that the
work-related injuries the plaintiff sustained after the accident were severe in
nature and persistent.  The defendants argue that these injuries, wholly
unrelated to the motor vehicle accident, have affected the plaintiff’s quality
of life and earning capacity.  Although the defendants do not dispute that the
plaintiff suffered mild to moderate soft tissue injuries to the left side of
her neck and left shoulder as a result of the accident, they contend that she
had largely recovered from those injuries by mid-2008 with some residual and
non-disabling symptoms lingering on.  The defendants argue that the plaintiff
has not proved there is a real and substantial possibility she will suffer a
future loss of earnings attributable to the injuries she sustained in the
accident.  In the alternative, the defendants submit that any award for loss of
future earning capacity should be relatively modest.  The defendants also
contend that the award for damages under all heads should be reduced by 20 to
25% to reflect the plaintiff’s failure to mitigate her damages.

B.       The Accident

[7]            
The plaintiff testified that she has no clear recollection of the
accident.  She recalls driving her Jeep Cherokee southbound on King George
Highway at the intersection of King George Highway and 80^th Avenue
in Surrey, British Columbia between 5:00 and 6:00 p.m. on November 6, 2007.  The
weather was dark and it was raining.  The plaintiff was alone.  She was wearing
her seat belt.  Although the plaintiff recalls being struck several times, she
did not provide a detailed account of the accident and testified that she could
not say who or what caused the impacts or the order in which they occurred.  She
recalls her vehicle coming to rest in the southbound lane beside the median
separating north and southbound traffic.  Both front seat airbags deployed.  She
had been cut on the left side of her head.  Her vehicle was written off.

[8]            
The plaintiff spoke with the police and a witness named John Anderson at
the scene but testified that she has no recollection of what she said to either
of them.  She testified that she was "shaken up" and in shock.  She
did not go to the hospital.  She was driven home from the accident scene by her
boyfriend, Roger Ward.  She went to work the next day but only to explain to
her employer what happened.  She thinks she took the next couple of days off
work.  She testified that in the days following the accident her whole body
became increasingly stiff and sore.

[9]            
John Anderson witnessed the accident.  I am satisfied that his account
of what occurred is reliable.

[10]        
Mr. Anderson testified that he was driving a three-ton truck
northbound on King George Highway at the intersection of 80^th Avenue
between 5:30 and 6:00 p.m.  It was raining and the traffic was quite heavy.  Mr. Anderson
was stopped in the dedicated left turn lane waiting to turn west onto 80^th
Avenue.  He was behind three or four vehicles also waiting to turn left.  The
light at the intersection was green.  From the elevated vantage point of his
truck he noticed that the first left-turning car in line (a red vehicle driven
by the defendant Gurdish Kaur Rai and owned by the defendant Joginder Singh
Rai) had pulled out into the intersection waiting for southbound traffic to
clear.  He testified that just as soon as the light for north and southbound
traffic turned yellow, the red vehicle turned left.  When it did, the oncoming
green Jeep being operated by the plaintiff was right at the crosswalk of the
intersection.  Mr. Anderson testified that the plaintiff could not stop. The
plaintiff tried to turn her vehicle to the right.  The impact pushed the
plaintiff’s Jeep over to the curb lane for southbound traffic.  The plaintiff’s
Jeep bounced off the curb, came back across the southbound lanes and went over
the median separating the northbound and southbound lanes, striking Mr. Anderson’s
vehicle and the car behind him.

[11]        
Mr.  Anderson testified that the plaintiff got out of her vehicle
but that she appeared to be dazed and confused and not know where she was.

C.       The Medical Evidence

[12]        
Dr. Dyment has been the plaintiff’s family physician since 1991.  He
has 37 years of family practice experience.  The plaintiff went to see him on
November 9, 2007, two days after the accident because her symptoms were getting
worse.

[13]        
Dr. Dyment testified that the plaintiff had not previously reported
to him any lower or upper back or neck pain.  On examination, she was noted to
have marked restriction of rotation of her neck and thoracic spine.  Forward
flexion of her lumbar spine was also restricted and she was tender in the
musculature beside her vertebrae.  The plaintiff was diagnosed as having an
upper and lower back strain.  Dr. Dyment prescribed massage therapy and
gave the plaintiff Tylenol No. 3 for pain.  Dr. Dyment believed the
plaintiff would be able to do inside work in a postal office on at least a
part-time basis, but that she would be off work from her regular duties as a
letter carrier.

[14]        
Dr. Dyment saw the plaintiff again on March 4, 2008.  The plaintiff
reported that her left arm was aching, her neck was tight, her low back was
sore on the right side and that she was experiencing shooting pains from her
neck into the back of her head.  On examination, she was noted to have
restriction in rotation of her cervical and thoracic spine.  She remained
tender over the back of the neck, mid back and low back.  She was particularly
tender over both trapezius muscles.  Dr. Dyment diagnosed neck and lumbar
strain with C4-5 referred pain into the left shoulder.  Dr. Dyment recommended
massage therapy to get the plaintiff in a more relaxed state and an active
rehabilitation program with a physiotherapist to more aggressively treat her
muscle tension.

[15]        
While Dr. Dyment agreed that the plaintiff did not come very often
to see him for neck and back pain after the accident, he testified that she was
not a person to come in frequently and she was not trying to "play him"
to advance her cause of action.  Dr. Dyment also testified that he was
aware the plaintiff had moved shortly after the accident and had to drive an
hour to an hour and a half to attend appointments with him.  He testified that
appointments for the plaintiff would take about three and a half hours of her
time.  Having said that, Dr. Dyment testified that the relative infrequency
of her visits did not affect the management of her complaints because he "sent
her off with objectives".

[16]        
Dr. Dyment next saw the plaintiff on July 7, 2008 in relation to a
Workers’ Compensation Board ("WCB") injury.  The plaintiff reported
that she hurt her low back while lifting an 80 pound parcel at work.  Dr. Dyment
saw the plaintiff on a second occasion in July, 2008 for the WCB lower back
strain.

[17]        
Dr. Dyment testified that the earlier motor vehicle accident
affected the plaintiff’s neck, mid back and low back.  The most significant
injury caused by the accident was, however, to the musculature of the plaintiff’s
neck.  He testified that the low back injury from the accident had resolved
itself before the plaintiff strained her low back again at work in July 2008.  The
plaintiff herself reported to Dr. Dyment in the summer of 2008 that her
low back had improved and was not much of a problem until the WCB injury.  Dr. Dyment
was unable to say whether the low back strain suffered in the earlier accident
rendered the plaintiff more susceptible to or otherwise "set her up"
for the work-related low back strain in July 2008.

[18]        
The plaintiff reported to Dr. Dyment on August 8, 2008 that her
neck was still tight but that it had improved since the November 2007 car
accident.  She told him that the ache in her left arm, which he believed to be
referred from her neck, lasted for two or three months before subsiding.  The
plaintiff’s central complaint in August 2008 was of ongoing pain in the back of
her neck, which was made worse by physical activity.  She described trying to
ride on the back of a motorcycle and experiencing extreme neck pain.  On
examination, the plaintiff was noted to have nearly full range of movement of
her neck except that rotation to the right was slightly restricted.  She was
also noted to have tender and palpable knots over her left trapezius muscle.  Dr. Dyment
concluded that while the plaintiff’s situation was resolving, "there had
still been no treatment other than her own stretching program and she really
needed an active exercise program through a physiotherapist."  Dr. Dyment
testified that the plaintiff told him ICBC had not yet determined who was at
fault in the accident and was, as a result, not providing funding for her to
obtain the therapy he recommended.

[19]        
On January 9, 2009, the plaintiff told Dr. Dyment that her symptoms
were somewhat better in her neck, upper back and mid back, although they were
made worse by lifting heavy objects.  She advised Dr. Dyment that ICBC was
still not covering the cost of any therapy.

[20]        
Her next visit to Dr. Dyment was on March 20, 2009.  By this time,
the plaintiff was sorting mail for one and a half hours and then doing a mobile
route delivering mail.  Her route was marked with potholes and she advised Dr. Dyment
that she had purchased an OBUS Forme back support to take with her in the
vehicle.  On examination, she had a full range of movement of her cervical,
thoracic and lumbar spines but was very tight over the trapezius and
paracervical muscles.  Dr. Dyment’s assessment remained the same and he
continued to recommend an active exercise program, but the plaintiff told him
that ICBC was still declining to pay for any treatment.

[21]        
In July 2009, the plaintiff reported to Dr. Dyment a recurrence of
the aching in her left arm.  Although her left shoulder and neck range of
movement was full, she was tender over the trapezius muscles.

[22]        
In August 2009, the plaintiff reported that her left arm was still sore
and that she was experiencing neck stiffness.  She was noted to be tender over
the C4-5 vertebrae and paracervical musculature.  Tests confirmed that there
was no nerve entrapment occurring within the bony structure of the neck itself. 
Dr. Dyment drew from this that the plaintiff’s soft tissue injuries were "potentially
reversible with active treatment".

[23]        
The plaintiff saw Dr. Dyment on three occasions in 2010.  In
February, she reported ongoing pain in her left arm and described having a lot
of neck and back pain.  Specifically, her right low back was aching and was "clicking
and popping".  In June 2010, she again reported neck stiffness and pain in
her arm.

[24]        
In August 2010, the plaintiff attended a walk-in clinic and advised the
treating physician that she was experiencing low back and knee pain.

[25]        
In September 2010, she reported to Dr. Dyment that her neck
symptoms were worse than before.  She advised Dr. Dyment that she was now
using a step van that required her to use her arms to pull herself into the cab. 
The steps of the van were steep and the plaintiff said that she would feel it
in her back as she hoisted herself into the vehicle.  The plaintiff also
reported experiencing headaches when her neck was tight.  Examination revealed
tenderness over the paracervical musculature and tenderness over the cervical
spine and both trapezius muscles.  She had a full range of movement except for
a slight restriction on rotation of the cervical spine to the left.  Dr. Dyment
wrote a note on the plaintiff’s behalf to her employer recommending that she
use a delivery van with a lower step up.  Canada Post accommodated this request
and the plaintiff was supplied with a van with a lower step up into the cab.

[26]        
The plaintiff was referred for an independent medical evaluation, which
was performed by Dr. Kousaie on January 17, 2011.  The plaintiff informed Dr. Kousaie
that she had been referred for physiotherapy following the accident but was
unable to afford the treatment cost.  The plaintiff advised Dr. Kousaie
that she was then working four hours a day at an inside job sorting mail but
would "bid" each day on extra hours available as a result of the
long-term absences of other Canada Post employees.  She advised that she was
averaging about 35 hours of work per week.

[27]        
Dr. Kousaie diagnosed a soft tissue injury mainly to the trapezius
muscle on the plaintiff’s left side.  There was also evidence of a soft tissue
injury in the area of the plaintiff’s neck and upper back.  He concluded that
the plaintiff’s injuries were caused by the motor vehicle accident.

[28]        
Dr. Kousaie recommended that the plaintiff strengthen the muscles
of her neck, upper back and shoulder areas.  In his report of January 17, 2011,
Dr. Kousaie noted that if the plaintiff persisted in performing physical
activity to strengthen the muscles of her neck, upper back and shoulder he was
hopeful her symptomatology would reduce.  He did not believe that the plaintiff
would be permanently disabled as a result of the pain she was suffering.

[29]        
The plaintiff saw Dr. Dyment on three occasions in 2011.  In
January, she described having increased and constant neck discomfort with
intermittent jolts of pain.  She told Dr. Dyment that her new job with
Canada Post required her to pick up parcels from a large box and load her truck
and that this caused her neck and back to hurt more.  As a result of the pain
she was experiencing doing this, she told Dr. Dyment, she successfully bid
on another job that involved sorting mail for letter carriers.  Dr. Dyment
once again discussed with the plaintiff her need to become involved in an
active rehabilitation program.  The plaintiff reiterated she was unable to
afford it and that ICBC was still not prepared to pay for the recommended
treatment.  On examination, the plaintiff was noted to have a lot of muscle
tension in both trapezia and her range of movement was restricted at the
extremes of rotation of her neck.  Massage therapy was again recommended by Dr. Dyment
to deal with her muscle tension.  In his report of February 2, 2011, Dr. Dyment
expressed his prognosis:

I would have expected an eventual full
recovery as there are no underlying serious structural problems to contribute
to an ongoing problem.  However it has now been three years without active
treatment and her symptoms have been increasing due to her work issues.  This
makes the chances of full recovery much less.  She really needs to be able to
engage in an active rehabilitation program to be able to deal with the physical
stresses of her job and she has been unable to afford this.

[30]        
In February 2011, the plaintiff advised Dr. Dyment that she was
working four hours in the morning sorting mail and then doing only one section
of mail delivery on foot.  Prior to the accident she had been doing three
sections of mail delivery on foot per day.  Each section consists of about one
and three-quarter hours of walking with mail satchels strapped to both sides of
the letter carrier at hip level.

[31]        
In a supplementary report dated March 23, 2011, Dr. Dyment opined
that the plaintiff "would be unable to work full-time letter carrying,
considering it is an eight hour job."  In fact, full-time letter carriers
walk their routes for five and one-quarter hours per day, not eight hours per
day.  The additional two hours are spent sorting mail to organize the delivery
routes.  The defendants contend that Dr. Dyment’s opinion as to the
plaintiff’s disability is worthless because it is premised on an inaccurate set
of facts as to the length of time the plaintiff would be required to carry mail
each day.  I do not agree.  In his later report of November 21, 2012, Dr. Dyment
recognized that a significant portion of a letter carrier’s eight-hour shift
would involve sorting mail before walking the three routes or sections.  His
opinion that the plaintiff would be unable to regularly work an eight-hour
shift as a letter carrier remained the same.  Specifically, he concluded that
the plaintiff’s soft tissue injury in the motor vehicle accident "has
significantly impacted her ability to do her regular occupation."

[32]        
In April 2011, the plaintiff described to Dr. Dyment feeling quite
distressed by the intense pain in her neck.  She told him again that she was
unable to pay for the physiotherapy treatment he recommended.

[33]        
The plaintiff did eventually complete a 24-session active rehabilitation
program under the supervision of Lawrence Klyne, a physiotherapist, between
July 13 and October 20, 2011.  The plaintiff complained to Mr. Klyne
of neck, upper shoulder and mid-back pain as well as weekly headaches.  She
advised Mr. Klyne that her doctor had recommended physiotherapy
immediately following the accident to help with her pain, headaches and other
impairments but that she could not afford the surcharge or user fees and was
not offered any funding for this by ICBC.  She told Mr. Klyne that her
neck pain was equal bilaterally but that her upper shoulder pain was more
intense on the left side.

[34]        
As part of the initial assessment process undertaken by Mr. Klyne,
the plaintiff’s average daily pain was rated at 31 out of 40.  The rehabilitation
program included exercise, manual therapy techniques to decrease her pain and
trigger points, laser therapy and acupuncture.  Following completion of the
program, the plaintiff showed slight improvement with her pain and headaches
and was able to tolerate more exercises with less irritation.  Her upper
shoulder knots were noted to be significantly reduced.  The plaintiff said that
she felt better having completed the program but was not anywhere near her
pre-motor vehicle accident state.  At the conclusion of the program, her
average daily pain was rated at 26 out of 40.  The plaintiff advised Mr. Klyne
that she was occasionally managing 10-hour letter carrying shifts, but not with
the same comfort level or as regularly as she did prior to the motor vehicle
accident.  She also stated that she was turning down some hours as a letter
carrier because of the pain she would experience following each shift.  The
plaintiff reiterated this in her testimony.

[35]        
The last three rehabilitation sessions overseen by Mr. Klyne
focused on how the plaintiff would safely continue her exercises in her
home-based gym.  Mr. Klyne supervised the plaintiff performing these
exercises and provided her with a detailed exercise sheet to facilitate
recollection by her of the exercises she was to do.  Mr. Klyne reported
that on discharge the plaintiff had made good progress towards achieving the
goals of reducing her pain and independently carrying on with a follow-up
exercise routine.  Mr. Klyne was of the view that the treatment plan
designed for the plaintiff would help maintain her range of motion and control
her neck pain and headaches.  Although Mr. Klyne was of the view that the
plaintiff would continue to have persistent neck pain and headaches that would
likely permanently interfere with her ability to work as a letter carrier on a
full-time basis, he was of the view that the plaintiff’s injuries would not
affect her ability to maintain modified employment with Canada Post.  He
recommended that the plaintiff continue with physiotherapy treatments
incorporating both laser and dry needling intervention.

[36]        
In his testimony at trial, Mr. Klyne confirmed that the purpose of
showing the plaintiff how to do the various exercises he recommended before
discharging her from the active rehabilitation program was to enable her to
keep improving.  She was to do these exercises three times a week.  Not doing
them would reduce her chances for improvement.

[37]        
The plaintiff was assessed by Dr. Hershler, a physiatrist, on
October 5, 2011.  Although she reported having occasional low-back pain, her
major complaint related to persistent neck and shoulder pain which, depending
on the nature of her activities, would increase throughout the day.  Dr. Hershler
reported that rotation of the plaintiff’s head to the left was limited by
muscle tightness and pain on the left side of the neck and across the left
shoulder.  The main finding was on palpation of the upper and lower divisions
of the left trapezius muscle.  Numerous tender points were identified in both
divisions by virtue of the plaintiff’s instinctive and involuntary withdrawal
from pressure and her verbal confirmation of pain.  In his deposition, which
was admitted at trial, Dr. Hershler testified that palpation is one of the
techniques used by physiatrists to obtain clinical information.  It involves
pressing into selected spots on the body.  If a patient instinctively and
involuntarily withdraws from pressure, it is a positive pain response and is
considered to be an objective clinical finding.  He likened an involuntary pain
response to palpation to a reflex that cannot be learned or feigned.

[38]        
Dr. Hershler concluded that the plaintiff’s history and his
physical findings are consistent with an injury to both divisions of the left
trapezius muscle caused by the motor vehicle accident on November 6, 2007.  He
predicted the plaintiff would likely continue to be symptomatic for the
foreseeable future and that this would result in some modification of the letter-carrying
duties she was discharging before the accident.  Dr. Hershler testified
that the likelihood of recovery decreases if the patient continues to be
impaired and symptomatic five years after the injury-causing event.  When he
saw the plaintiff, she presented with a four-year history of persistent pain
and stiffness in her left shoulder and neck.  He concluded that the plaintiff
had a 50% chance for recovering within the next year and a 50% chance that her
symptoms would continue indefinitely.

[39]        
Dr. Hershler noted that the active rehabilitation program
supervised by Mr. Klyne provided the plaintiff with some relief.  For this
reason, he recommended she continue with acupuncture treatments and upper body
strengthening exercises.

[40]        
The plaintiff saw Dr. Dyment on four occasions in 2012.  In March
2012, physical examination revealed a full range of motion of her neck but palpable
tension in both trapezii and over the paracervical musculature.  She advised Dr. Dyment
that her work duties then involved lifting bundles of mail from a large bin to
trays and sorting them for letter carriers.  She was also doing one section of
mail delivery.  She reported finding it difficult to carry on with this type of
work.  Dr. Dyment wrote a further note to the plaintiff’s employer
recommending her work be modified so that she did not have to transfer mail
from the bins to the trays in front of her.  He again recommended physiotherapy
but the plaintiff continued to assert that she was unable to pay for it.  The
plaintiff also reported feeling depressed and losing her motivation to engage
in recreational activities.  The plaintiff reported to Dr. Dyment that she
had to sell her home and move into a condo as she could not handle the
maintenance associated with home ownership – a point she reiterated in her
testimony.

[41]        
In September 2012, the plaintiff reported to Dr. Dyment that she
was experiencing chronic pain in her right knee with an onset of one year
earlier.  She was diagnosed with retropatellar arthritis and was prescribed
physiotherapy.  Dr. Dyment agreed in cross-examination that it was
speculative to link the plaintiff’s knee pain with the motor vehicle accident.

[42]        
The plaintiff was last seen by Dr. Dyment in October 2012.  Her
symptoms were essentially the same.  She was having pain in her neck radiating
across the back of both shoulders and down her left arm.  She reported no
improvement in her level of pain.  A heating pad and the analgesics she was
taking every day assisted with her pain management.  She remained tender over
the trapezii and paracervical musculature.  Dr. Dyment discussed with the
plaintiff the type of job she felt she could handle.  Ideally, it would involve
carrying less than 20 pounds, not driving a step vehicle (as getting in and out
was hard on her back) and being limited to two mail delivery sections, or foot
routes, per day instead of the three that comprise a full shift.  Even with
these restrictions, Dr. Dyment anticipated she would still be symptomatic.

[43]        
In his report of November 21, 2012, Dr. Dyment concluded that the
plaintiff experienced a significant neck strain as a result of the motor
vehicle accident and that, given the passage of time, the prospects for further
improvement of her soft tissue injuries were slim.  He also found that the
plaintiff’s injuries significantly impacted her ability to do her regular
occupation.

[44]        
Dr. Kousaie, who performed the independent medical evaluation in
January 2011, was asked to review additional documentation including the
subsequent reports of Dr. Dyment, the medical-legal opinion of Dr. Hershler
and the report of the physiotherapist, Mr. Klyne. Dr. Kousaie was also
asked to prepare a further written opinion. By a report dated December 17, 2012,
Dr. Kousaie confirmed his previous diagnosis and expressed the view that
the plaintiff was not disabled for the type of work she described doing in
January 2011 – specifically, four hours of inside work followed by four hours
of outside work.  I would emphasize that in providing this further opinion Dr. Kousaie
proceeded on the mistaken understanding that the plaintiff returned to
full-time letter carrying just a short period after the accident.  Dr. Kousaie
confirmed in cross-examination that this opinion was based on his understanding
that she had been doing her pre-accident letter carrying job since January 2008. 
Dr. Kousaie’s understanding in this regard is incorrect.  As will be
discussed, the plaintiff was unable to return to a full-time letter-carrying
position after the accident.  The weight I can give this part of Dr. Kousaie’s
opinion is affected by the erroneous premise upon which it is based.

[45]        
Despite the fact that Dr. Kousaie proceeded on a misunderstanding
as to the type of duties the plaintiff discharged following the accident, it is
noteworthy that he agreed with Dr. Dyment and Dr. Hershler that based
on the severity of the impact, the symptomatology described by the plaintiff
and the fact that she was tender over her left trapezius muscle, she would not
be able to perform letter carrying for a full eight-hour day.

[46]        
At the end of the day, the medical evidence is consistent that the
plaintiff suffered a soft tissue injury in the accident resulting in persistent
myofascial pain, particularly in the areas of her left shoulder and neck, which
have impaired her ability to perform her letter-carrying duties at the hours she
was performing those duties immediately before the accident.

D.       The Physical
Capacity Evaluation

[47]        
Kamila Zloty, an occupational therapist, performed a physical capacity
evaluation of the plaintiff on April 13, 2001.  She prepared a detailed report
outlining the findings she made following the evaluation and was called by the
plaintiff at trial.

[48]        
In short, Ms. Zloty concluded that the plaintiff was employable
with the potential to work in light and a selection of medium-strength
occupations.  The plaintiff’s physical restrictions relate to work-intensive
sitting, frequent reaching, handling with the left hand, occasional lifting of
more than 20 pounds above shoulder level, more than 30 pounds from knuckle to
shoulder level, and more than 40 pounds from floor level, as well as
frequent lifting and carrying weight in front of her.  Ms. Zloty testified
that her test results confirmed the plaintiff’s report that she was having
difficulties performing her regular work duties and partaking in recreational
activities without using pain medication.

[49]        
The defendants also engaged an occupational therapist, Ralph Cheesman,
who reviewed Ms. Zloty’s report and prepared a responding report
questioning the methodology Ms. Zloty employed and the reliability of the
test results she obtained.  Mr. Cheesman was called by the defendants at
trial.  He testified that if Ms. Zloty had followed standardized and
reliable lift capacity protocols, the plaintiff may very well have been rated
as having medium strength capacity.

[50]        
I did not find this evidence particularly helpful for a variety of
reasons and I need not resolve questions left by Mr. Cheesman’s evidence
as to whether the methodology and protocols used by Ms. Zloty skewed the
test results.

[51]        
First, Ms. Zloty did not observe the plaintiff in her work
environment performing her regular duties nor did the various tests
administered as part of the physical capacity evaluation purport to simulate
the demands of the plaintiff’s job.  Ms. Zloty agreed that there is
nothing better than an on-site evaluation.  On the whole of the evidence, I am
not satisfied that the tests Ms. Zloty had the plaintiff perform, some of
which appear to bear little relationship to the work she does, are a reliable
gauge of the plaintiff’s actual capacity to perform the tasks that her work
demands of her.

[52]        
Second, the plaintiff admitted that her symptoms and her capacity to
engage in repetitive or strenuous work vary from day-to-day. The physical
capacity evaluation is just a snapshot of how she performed on a given day some
two years ago.  In the circumstances, I am of the view that it would be unsafe
to make any firm factual findings based on this evaluation, let alone project
those findings well into the future.

[53]        
Third, in the two months leading up to the physical capacity evaluation,
the plaintiff did work close to full-time hours and, on a number of consecutive
days, worked eight-hour shifts, including five consecutive eight-hour days the
week before the physical capacity evaluation was conducted.  The evidence does
not establish whether those full-time hours were exclusively inside work or a
combination of inside work and outside letter-carrying extensions.  Either way,
there is an apparent contradiction between the test results and the reality of
what the plaintiff was doing at work immediately before the test was
administered.

[54]        
Fourth, Ms. Zloty testified that it was hard to finish the
assessment as the plaintiff became increasingly frustrated, irritable and angry
as the test progressed.  In fact, the plaintiff declined to complete some tests
due to self-reported pain.  In addition, the evaluation did not test frequent lifting
capacity as the evaluator concluded that the plaintiff was unable to perform
this aspect of the test due to her already demonstrated reaching limitation.  I
have difficulty understanding this evidence in light of the plaintiff’s
functional test outcomes with respect to reaching.  Specifically, the plaintiff
demonstrated her ability to reach with load to all required heights.

[55]        
Fifth, while I recognize Ms. Zloty’s opinion that the plaintiff
gave full effort during the evaluation and that her struggles to complete the
tests were supported by objective indicia of discomfort, I am troubled
by Ms. Zloty’s evidence that objective indications of a person’s inability
to complete a test include such things as sighing and grimacing – in other
words, self-reports.  In short, I am left to wonder whether the tests the
plaintiff did complete are a reliable gauge of her working capacities.

[56]        
Finally, some of the test results reported by Ms. Zloty suggest the
plaintiff perceives herself as being less capable than she actually is.  I
accept Ms. Zloty’s evidence on this point.  Unfortunately, the physical
capacity evaluation does not fully explore this important issue or permit me to
make any reliable factual finding about the extent of the gap between the
plaintiff’s perceptions and self-limitations on the one hand and what she is
actually capable of doing on the other.

E.       The Plaintiff’s
Evidence

[57]        
The plaintiff is a divorced single mother.  Her 14-year-old daughter
lives with her.

[58]        
The plaintiff started working for Canada Post as a temporary employee in
early May 2007.  She started as a mail service courier using a vehicle to pick
up and deliver parcels from businesses.

[59]        
Even though she remained a temporary employee, the plaintiff was able to
get full-time hours as a relief letter carrier in July 2007.  Her duties
consisted of sorting mail at the beginning of her shift and then completing
three sections of mail delivery on foot.  As noted above, each section is one
and three-quarter hours.  Each shift would, therefore, consist of about five
and one quarter hours of letter carrying.  Letter carriers use a satchel with
shoulder straps buckled at the chest and pouches at hip level on both sides to
carry up to 35 pounds of mail.  They also have the option of using a cart.

[60]        
Stephen Gale, the Fraser Valley West local president of the Canadian
Union of Postal Workers ("CUPW"), confirmed that as of the date of
the accident on November 6, 2007 the plaintiff was working about 79 hours every
two weeks.  He testified that temporary employees like the plaintiff are able
to bid on full-time assignments made available as a result of the extended absences
from work of other employees.  Mr. Gale reviewed the availability of
full-time assignments for temporary employees between the date of the accident
and shortly before the plaintiff became a part-time permanent employee of
Canada Post in February 2010.  He testified that based on the staffing needs of
Canada Post during that time and the plaintiff’s seniority, she would have had
no difficulty obtaining full-time hours as a letter carrier.

[61]        
The plaintiff testified that after the accident she was not able to work
full-time hours as a letter carrier.  Had she not been injured, the plaintiff
testified that she would definitely have continued as a letter carrier working
full-time hours.

[62]        
For a time after the accident, the plaintiff worked 5.37 hours a day doing
parcel delivery on a mobile or vehicle route.  She also worked as an inside
assistant marking parcels.

[63]        
The plaintiff testified that she injured her low back at work in July,
2008 while attempting to lift a 70 to 80 pound bag.  She was, at this time, working
a mobile parcel delivery route.  She testified that the injury was "pretty
painful" and that she was off work and in receipt of benefits from a
workers’ compensation claim she made in connection with this incident for six
weeks after the date of the injury.  She returned to work thereafter on a
graduated basis and was assigned different duties.

[64]        
The plaintiff became a permanent part-time employee of Canada Post in
February 2010.

[65]        
Since December, 2010 she has worked as an inside assistant sorting mail
for letter carriers from 5:00 to 9:00 a.m. five days a week.  She is,
therefore, guaranteed 20 hours per week.  The plaintiff testified that the work
of an inside assistant is generally done at waist to shoulder level.  Even so,
she testified that she sometimes has difficulty with sorting activities and is
assigned other duties.  I would note on this point that Josh Inman, who
supervised the plaintiff in approximately 2011, testified that the plaintiff
told him she had problems with her back as a letter carrier but never told him
she was having problems doing inside work sorting mail.

[66]        
The plaintiff testified that she signs up virtually every day for an
extension of her hours.  The extension may involve inside work or one section
of letter carrying.  She testified that she has accepted all work available to
her that she feels able to do.  Some days, however, she does not sign up for an
extension because of the pain she is experiencing in her neck and upper back.

[67]        
The plaintiff testified in chief that she does not tell her employer
about her pain because she does not want to appear "like a cripple". 
She also testified that she sometimes accepts full-time hours (whether as inside
work or a combination of inside work and an outside foot delivery route) even
when she is in pain.  When she does so, she uses an analgesic to get through
her shift.

[68]        
The plaintiff testified that no full-time positions with Canada Post
have come up that she considers herself to be capable of doing.

[69]        
She agreed that she has not applied for and lost out on any promotions
or positions that would have paid her more than she is currently making.

[70]        
The plaintiff testified that she waited four months between her first
and second visits to Dr. Dyment’s office because she felt there was
nothing he could do to help her.  She testified in chief that she did not go
for physiotherapy as recommended because ICBC would not fund it and she could
not afford to pay for it.  She testified that she stretches every day, works
out when she is not in pain and uses a heating pad to manage her symptoms.

[71]        
The plaintiff testified that prior to the accident she never had any
problems with her upper back, shoulder or neck.  Since the accident she has
experienced persistent pain and stiffness in her upper back, shoulder and neck,
particularly on the left side.  She testified that she is exhausted and in pain
at the end of her shift.  Household activities like cleaning and doing the
laundry aggravate her symptoms.  The plaintiff testified that she regularly
worked out at a gym before the accident, played slow pitch baseball in the
summer and enjoyed motorcycle trips with her boyfriend.  Since the accident she
has not participated in these recreational pursuits to the same extent.  She
testified that she cannot handle motorcycle trips of any length as it causes
extreme pain in her upper back.  She testified that the pain she experiences
impairs her ability to get restorative sleep.  She says that her pain is always
there and that her left shoulder and neck have not improved at all in the past
year.

[72]        
Roger Ward, the plaintiff’s boyfriend now and at the time of the
accident, testified that he has noticed a significant decrease in the plaintiff’s
energy level and motivation since the accident.  He confirmed that motorcycle
rides of any length cause the plaintiff discomfort and that he has to make
frequent stops so she can stretch.  He testified that they spend less time
together since the accident because she is tired and goes to bed by 7:00 to
7:30 p.m.

[73]        
The plaintiff testified that she hurt her low back again at work in May
2009 when she was walking up some steep stairs.  She missed one week of work
due to this injury and continued to experience difficulties on her return.  At
the time of this injury, the plaintiff was driving a step van on a mobile route
and experienced pain in her knee, lower and upper back in pulling herself up
into the van after a delivery.

[74]        
The plaintiff also tripped on some stairs in November 2011 and fell into
a wall.  She testified that she experienced some left shoulder pain after this
incident and missed one day of work, but that her symptoms from this mishap
resolved themselves completely.

[75]        
Finally, the plaintiff was involved in another motor vehicle accident in
April 2012.  She testified in chief that she was making a left turn when a
vehicle came "flying over a hill like a rocket and struck her".  She
testified that she was not hurt in this accident.

[76]        
The plaintiff testified that even though her pain symptoms probably
improved a little bit in the course of the active rehabilitation program, she
has not followed Mr. Klyne’s recommendation that she adhere to the
exercise program he designed and went over with her after she completed the
program in the fall of 2011.  Mr. Klyne recommended that she follow this
program three times a week.  The plaintiff admitted she has not done so and
explained that this is because she is exhausted and in too much pain.

[77]        
The plaintiff testified that in June 2008, about seven months after the
accident, she bought a 2,300 square foot detached home.  She testified that she
moved out after two and a half years because she could not keep up with the
housework and yard work, which aggravated her symptoms.  She now lives in a
strata unit.

F.       The Credibility
of the Plaintiff

[78]        
That the plaintiff suffered soft tissue injuries to the left side of her
neck and left shoulder in the motor vehicle accident on November 6, 2007 is not
contested.  I accept that the plaintiff’s injuries have persisted and, at least
to some extent, have impaired her ability to do the same work she was doing at
the same hours just prior to the accident.  For reasons I will develop more
fully, I am also of the view that because the plaintiff did not follow through
in a timely way with the treatment recommendations repeatedly made by her
physician and others, it is more likely at this stage that her symptoms will
persist.

[79]        
Assessing the extent of the plaintiff’s loss attributable to the motor
vehicle accident is made more challenging because of the way in which the
plaintiff gave her evidence, the substance of the evidence, and the impact
these two factors have on her credibility as a witness and the reliability of
her account.

[80]        
The plaintiff was defensive in cross-examination, at times combative
and, as she was reported to be in the functional capacity evaluation, quick to
frustration and visible anger.  She was reluctant to admit anything that might
undermine the extent of her claim.  Indeed, she was reluctant to concede
anything on cross-examination and only inclined to do so when confronted with
contradictory proof.

[81]        
On most of the issues discussed below, I accept that the plaintiff’s
evidence is the product of what has been described as the unconscious human
tendency to reconstruct and distort history in a manner that favours a desired
outcome: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10.

[82]        
On other points, particularly on the plaintiff’s adherence in
cross-examination to the assertion that she could not afford to pay for the physiotherapy
repeatedly recommended by Dr. Dyment and others, I simply do not accept
her testimony.  This finding goes not only to the reliability of her evidence –
it undermines my assessment of her credibility as a witness and the faith I can
put in her version of events.

[83]        
In the paragraphs that follow, I address 10 areas of the plaintiff’s
testimony that negatively affect either my assessment of her credibility as a
witness or the reliability of her evidence.

[84]        
First, the plaintiff testified in chief that she was unable to say much
about the accident itself.  Specifically, she testified that she was unable to
say who caused the impact or in what order she was struck.  Despite this, she
admitted telling an ICBC adjuster and Dr. Dyment that she did recall being
struck in the rear by an unidentified vehicle before being hit by the vehicle
driven by the defendant.  The plaintiff testified that her report of what
occurred was based on what she was told at the scene by a third party.  The
plaintiff’s report to ICBC was, however, presented as a first-person account of
the accident based on her own recollection of what occurred, not an account
pieced together on the basis of what she had been told by others.  The
plaintiff testified that she spoke with Mr. Anderson and the police after
the accident but did not mention speaking to any other third party who
witnessed the incident.  Mr. Anderson testified that he never told the
plaintiff that she had been struck from behind before the accident occurred.

[85]        
Second, although the plaintiff was able in her examination-in-chief to
give a fairly detailed account of the progression of her injuries since the
accident, in cross-examination she claimed to be unable to remember how she
fared or what her working life was like in the months after the accident.  She
was obviously frustrated with legitimate lines of questioning in
cross-examination and testified that these events happened a long time ago and
that she could only say that she has good days and bad days.

[86]        
Third, the plaintiff initially refused to agree with the suggestion put
to her in cross-examination that she improved in early 2008 to such an extent
that she was able to return to almost full-time hours.  When asked if her
working hours generally increased in January and February 2008, the plaintiff
professed that she was confused by the question before conceding that her hours
probably did increase.  The plaintiff’s pay stubs, put to her in
cross-examination, establish that by January 2008, and continuing through to
mid-April 2008, she had returned to roughly the full-time hours she was working
before the accident.  The plaintiff eventually conceded this was so but pointed
out she was doing a different job that involved inside duties.  It was fair and
appropriate for the plaintiff to point out that her return to work at something
approaching full-time hours involved different, less strenuous duties.  Her
reluctance, however, to admit that she had returned to work on a full-time
basis in early 2008 is just one illustration of the many occasions upon which
the plaintiff was reluctant to give any ground if she perceived that doing so
might compromise her claim.

[87]        
Fourth, when it was suggested to the plaintiff in cross-examination that
her symptoms were better in the fall of 2008 than they were in December 2007,
the plaintiff asserted that nothing about her situation had improved in that
time.  She agreed, however, that in May or June 2008 she accepted a mobile
parcel delivery job that sometimes involved lifting and delivering heavy
objects to post offices.  Her decision to do so would certainly suggest that
her symptoms had improved by then notwithstanding her protestations to the
contrary.  Further, I note Dr. Dyment’s report reflects that the plaintiff
told him in August 2008 her neck had improved since the November 2007 car
accident and that the ache in her left arm had resolved itself.  Indeed, it was
Dr. Dyment’s assessment that the plaintiff’s symptoms were resolving by
August 2008.  I do not doubt that the plaintiff continued to have symptoms
associated with the motor vehicle accident in August 2008 and thereafter.  That
she was unwilling, however, to admit to even the slightest improvement when her
return to full-time hours in early 2008 and her report to Dr. Dyment in
August 2008 would suggest otherwise, tells against her credibility.

[88]        
It is also noteworthy that, eight months after the accident, when the
plaintiff testified that she had experienced no improvement in her symptoms,
she moved from a townhouse that required relatively little upkeep to a 2,300
square foot detached home with a yard that required her to do outside
maintenance work.  That the plaintiff would make this move when she did, and
live there for two and a half years, suggests that she was, and believed herself
to be, more physically capable than she was prepared to acknowledge in her
testimony at trial.

[89]        
Fifth, in cross-examination the plaintiff initially maintained she was
unable to afford the massage therapy or physiotherapy recommended by Dr. Dyment
and that ICBC was not prepared to pay for any of the cost associated with this
treatment.  As is evident from my summary of the medical evidence, the
plaintiff repeatedly advanced this explanation for not following up on the
medical advice she had been given.  When pressed, she testified that ICBC would
pay nothing for her first treatment but would pay the $25 user fee for
subsequent visits.  When it was suggested to her that ICBC was, in fact,
willing to pay for up to 12 physiotherapy treatments but not advance money
against any future tort settlement for the purposes of covering additional user
fees, the plaintiff testified she did not remember that.  When she was shown
correspondence between her counsel and ICBC confirming that ICBC was not
denying coverage but refusing to pay user fees and pressed to agree that her
testimony did not reflect the true state of affairs, the plaintiff repeatedly
replied "sure".  I am satisfied she did so in an effort to downplay
the significance of an inconsistency in her testimony that she knew to be
important.  I am satisfied the evidence establishes that for a substantial
period before she followed up on the treatment recommendations made by Dr. Dyment
and other health care professionals, the plaintiff knew she was covered for all
but the user fees a service provider might charge.

[90]        
Despite the fact that the plaintiff was getting nearly full-time hours
in the spring of 2008 and renting the basement suite of her home to her mother,
she said she could not afford $300 in user fees for 12 physiotherapy
appointments.  She maintained her testimony on this point even when confronted
with the fact that she sought out chiropractic treatments between March and May
2009 and again in January 2010 for which she did not have any benefit coverage. 
She further agreed that she went to a chiropractor instead of a physiotherapist
despite Dr. Dyment’s contrary recommendation.  Having done so, she then
testified that she did not know whether chiropractic treatments were
recommended by Dr. Dyment.  Dr. Dyment recommended massage therapy
and physiotherapy for the plaintiff not chiropractic treatments and I am
satisfied that the plaintiff either knew this or was not listening to her
doctor’s recommendations because she was fully invested in the notion that no
one could help her.

[91]        
When asked in cross-examination if she made any inquiries about the
availability of physiotherapists that did not charge user fees, the plaintiff
testified that she believed she called some places.  The plaintiff had
previously been to see Mr. Klyne for physiotherapy for the low back strain
she suffered in July 2008.  Mr. Klyne does not charge user fees.  The
plaintiff admitted in cross-examination that she did not ask Mr. Klyne if
he could provide physiotherapy treatments to her without user fees as he did in
2008 for her work-related injury.

[92]        
The plaintiff agreed that she obtained employment benefits, including
coverage for physiotherapy, when she became a permanent employee in February
2010.  Although there may have been a waiting period for coverage, she agreed
that she had benefit coverage by September 2010.  The plaintiff also agreed
that she did not undertake physiotherapy treatments at this time even though
she knew she could get her user fees reimbursed.  She sought in cross-examination
to maintain the position that she could not afford to pay a $25 user fee per
visit up front even though she knew she would be reimbursed by her insurer
through her work benefit package.  She testified that she was "pretty
broke".  It is difficult to credit the plaintiff’s evidence on this point. 
I do not accept her explanations for failing to obtain the treatment her doctor
recommended either before or immediately after securing employment related
benefits.  I am satisfied that her refusal to do so until June 2011 was
unreasonable.

[93]        
Sixth, the plaintiff denied in cross-examination that she continued to
have low-back pain after her graduated return to work following the low back
injury in July 2008.  She testified that this injury had completely healed by
the fall of 2008 and that she had no continuing low-back pain.  But the
plaintiff also acknowledged in cross-examination that in early 2009 she
requested an OBUS Forme seat support, which was paid for by her supervisor.  She
denied that the seat support was specifically for low-back pain.  She testified
that it was for the comfort of her whole back.

[94]        
The plaintiff admitted that she missed six days of work as a result of a
recurrence of low-back pain in May 2009 that was triggered while she was walking
up a steep set of stairs delivering mail. She denied experiencing severe low-back
pain as a result of this incident but was shown the clinical notes of her
chiropractor in which she reported to him that she was having "severe"
low back pain.  She testified that she worded it incorrectly and that the
recurrence of her low back strain was not as severe as the original injury in
July 2008.  The plaintiff pursued compensation for missed work as a result of
the May 2009 low back strain.  In support of her claim for compensation, the
plaintiff advised WorkSafe BC that the strain stemmed from the previous "serious
injury" to her low back in July 2008 that "has not fully healed
properly."  She also advised WorkSafe BC that she had purchased an OBUS
Forme seat support because of "lower back discomfort".  The content
of the submission made by the plaintiff in support of her claim for
compensation is inconsistent with her testimony that her low back injury had
healed and that the seat support was purchased for her whole back, not her low
back.

[95]        
The plaintiff testified that she did not remember whether her low-back
pain continued into 2010.  When asked if she complained about low-back pain to Dr. Dyment
in 2010, the plaintiff testified that she probably did.  In fact, the plaintiff
advised Dr. Dyment in February 2010 that her right low back was "aching,
clicking and popping".  The plaintiff continued to complain to Dr. Dyment
about low-back pain in September 2010.  As mentioned, in November 2010 Dr. Dyment
wrote a note to Canada Post on the plaintiff’s behalf advising that she needed
a van with a lower step because the van she was driving was causing problems
with her low back and knee.  Canada Post accommodated this request and the
plaintiff agreed that the new van she was given, which had a lower step, did
not aggravate her low back or knee pain as much.  The plaintiff also agreed
that she continued to report right low back pain to Dr. Dyment in January
2011.  She sought to characterize her low-back pain as being "slight"
at the time of the September 2010 and January 2011 visits to Dr. Dyment.  I
am satisfied that the plaintiff was suffering from more than "slight"
low-back pain around the time of these visits.  In fact, that is why the work
accommodation was requested and implemented by Canada Post – to alleviate the
low back and right knee pain the plaintiff was experiencing as a result of
having to step up into a relatively high delivery van.

[96]        
The plaintiff also denied a suggestion put to her in cross-examination
that doing mail delivery extensions on foot in 2011 caused her low back to be
sore.  When Mr. Klyne’s clinical notes were put to her that she told him
she was experiencing soreness in her low back after completing a letter
carrying extension following her inside duties, the plaintiff admitted that
this was so.

[97]        
I am satisfied that the effect of the plaintiff’s evidence on this point
was to seriously understate the extent to which she continued to endure
potentially disabling low-back pain unrelated to the motor vehicle accident.

[98]        
I am similarly satisfied that the plaintiff significantly downplayed in
her evidence the right knee pain she has experienced since 2011.  The plaintiff
characterized her right knee pain in 2011 and 2012 as sometimes causing her
difficulty but testified that she has no pain now and could not even remember
the last time she had knee pain.  However, she reported to Dr. Dyment as
late as September 17, 2012 (just five months before the commencement of
the trial) that she was having "chronic pain in her right knee" with
an onset of about one year earlier.  She informed Dr. Dyment that her knee
would give out at times.  The plaintiff was diagnosed at that time with
retropatellar arthritis.  Dr. Hershler testified that retropatellar arthritis
would not normally interfere with a person’s ability to walk on the level but
would affect someone who is required to do the type of knee bends associated
with squatting or climbing stairs.

[99]        
Seventh, although the plaintiff testified that she has been unable to
return to letter carrying on a full-time basis since the accident because of
the discomfort she experiences, she has not explored options that would permit
her, at least potentially, to return to her pre-accident employment situation
accident.  Specifically, although the plaintiff is aware that letter carriers
have the option of using a cart or trolley on a walking route, she testified
that she has never tried using one nor has she ever made inquiries about doing
so. Despite this fact, she testified that carts were a "pain" and "awkward"
and that using one would make foot delivery even more difficult.  She testified
that she does not know of any carrier with Canada Post who uses a cart.

[100]     Mr. Inman,
who supervises Canada Post letter carriers, testified that while a trolley can
be used for mail delivery on foot, it takes longer and most carriers do not
want to use one.  Given that the plaintiff has, for whatever reason, never
actually explored using a cart for the delivery of mail on foot, it is difficult
to avoid the conclusion that she has simply closed her mind to accommodations
that might enable her to work full-time hours (or something closer to full-time
hours) as a letter carrier.  More to the point for present purposes, the
plaintiff’s testimony on this issue detracted from my overall assessment of her
credibility.

[101]     Eighth,
some of the plaintiff’s answers to questions posed to her in cross-examination
were not candid.  When asked whether she was aware that Canada Post has a duty
to accommodate its employees, the plaintiff replied, "I do know that now."
I am satisfied that the plaintiff was aware throughout the period under review
that her employer had a duty to accommodate her situation.  In fact, the
plaintiff asked for and received accommodation in November 2010 when Canada
Post obtained for her use a delivery van with a lower step up.  They
accommodated her with inside work when she was injured and unable to perform on
a full-time basis the duties of a letter carrier immediately following the
accident.  That she would not answer this question directly and in a manner
consistent with the rest of the evidence reflects negatively on her credibility
as a witness.

[102]     Jamie
Clarkson, Superintendent of the Langley and White Rock Post Offices, was called
by the defendants at trial.  She knows the plaintiff and is aware that she
currently works as a part-time inside assistant who sometimes extends her hours
to do one section of letter carrying.  Ms. Clarkson is familiar with
Canada Post accommodation policy.  Both she and Mr. Gale testified that
Canada Post has a duty to accommodate injured workers, which means finding them
meaningful work that fits within their limitations and permits them to return
to work at their regular hours.  Ms. Clarkson testified that if a letter
carrier has no limitations with respect to walking but cannot do the lifting
required of the job, they will sometimes be assigned a mobile route or,
alternatively, given a cart to do letter carrying if the route is not hilly.  Further,
if a letter carrier cannot carry the weight required, a further accommodation that
may be explored includes placing more relay boxes on the carrier’s route so
they can reload their satchels more frequently and carry less weight. 
Ms. Clarkson also testified that if a full-time or part-time Canada Post
employee is medically assessed as being partially permanently disabled (PPD)
the employer attempts to find work for them that fits with their limitations.  She
testified that PPD status does not affect an employee’s job security.  PPD
status is available to inside and outside workers.  To her knowledge, the
plaintiff has never applied for PPD status.  In reviewing this evidence, I
recognize that the duty to accommodate extends to finding work for a disabled employee
permitting them to work their regular hours which, in the plaintiff’s case as a
part-time employee, is 20 hours per week.

[103]     The
plaintiff testified on at least two occasions that she did not want to tell her
employer about the restrictions she suffered as a result of the accident
because she did not want to appear "like a cripple" and feared they
might get rid of her.  I do not accept the plaintiff’s evidence on this point. 
She has sought and received accommodations from her employer in the past.  I do
not accept that she honestly feared dismissal as a consequence of disclosing to
her employer the injuries she sustained in this accident and I am at a loss as
to why the plaintiff would suggest otherwise.

[104]     Ninth, the
plaintiff testified that she was in a further motor vehicle accident in April
2012.  As noted earlier, she testified that this accident occurred when she was
making a left turn at an intersection and was struck by a vehicle which "came
flying over a hill like a rocket".  She testified that she was not injured
in this accident despite the fact her vehicle was a write-off.  I accept her
evidence on this point.  I raise this issue because the plaintiff’s description
of the accident would leave any reasonable person with the impression that she
had been struck by another driver who was operating his or her vehicle in a
reckless fashion.  It was not until cross-examination that it came out that the
plaintiff was found responsible for this accident.  Her testimony on this point
is another factor undermining the faith I have in the reliability of her
evidence as a whole.

[105]     Finally,
although I did not find the evidence respecting the assessment of the plaintiff’s
functional capacity to be of much assistance, I do note Ms. Zloty’s
conclusion that the plaintiff perceives herself, in some significant ways, as
being less capable of doing activities than her test results would indicate.  Specifically,
the plaintiff perceived herself as being capable of discharging sedentary to
light duties only when some of the test results suggested that she would be
capable of light to medium work duties.

[106]     None of
these 10 considerations would, standing alone, necessarily detract from my
assessment of the plaintiff’s credibility as a witness or the reliability of
her evidence.  Individually, each might be attributable to some factor that
leads the analysis away from that conclusion.  For example, the plaintiff might
have committed to buying a detached home, and assumed the yard work and
maintenance that goes along with it, in the expectation that her injuries would
eventually heal.  Each factor in isolation may be explainable in ways that do
not negatively impact on my assessment of her credibility.  When viewed
cumulatively, however, these factors do have that effect.

[107]     I accept
that the plaintiff suffered soft tissue injuries in the accident and those
injuries have given rise to fluctuating but relatively persistent symptoms in
her neck and left upper back.  My concerns about the plaintiff’s credibility as
a witness and the reliability of her evidence present unusual challenges in
assessing the extent to which she is accurately reporting the severity and duration
of the pain and loss of enjoyment of life she has experienced as a consequence
of the motor vehicle accident (as opposed to some other cause) as well as the
extent to which her future earning capacity is impaired by the injuries
attributable to that accident.  It is to those issues that I now turn.

G.      Assessment of
Damages

(a)      Non-Pecuniary
Damages

[108]     Non-pecuniary
damages are awarded for intangible losses, such as pain and suffering, loss of
amenities and loss of enjoyment of life.  Such damages are, by their nature,
not susceptible to scientific itemization.  The award must be fair and
reasonable to both parties.  Fairness takes its meaning from awards given in
comparable cases, although each case is unique and will turn on its own
particular facts.

[109]     The
factors to be considered in assessing non-pecuniary damages were reviewed in Stapley
v. Hejslet, 2006 BCCA 34 at para. 46, and I have taken them into account.

[110]     The
plaintiff submits that an award for non-pecuniary damages in the range of
$80,000 – $90,000 would be appropriate.

[111]     The
defendants acknowledge that the plaintiff suffered "mild to moderate"
soft tissue injuries in the accident, but assert that the plaintiff largely
recovered from those injuries by the middle of 2008 with some residual and
non-disabling symptoms lingering on.  The defendants submit that an appropriate
award for non-pecuniary damages would be in the range of $25,000 – $40,000.  They
submit that the award should be reduced by 20 – 25% as a result of the
plaintiff’s failure to mitigate her damages.

[112]     I make the
following factual findings with respect to the claim for non-pecuniary damages. 
The plaintiff sustained moderate soft tissue injuries in the motor vehicle
accident of November 6, 2007, primarily to the upper and lower divisions of her
left trapezius muscle.  The plaintiff has experienced relatively persistent
myofascial pain on the left side of her neck, left shoulder and left upper back
since the accident.  Her symptoms have plagued her for five and a half years
and are, at this stage, likely to continue on at least an intermittent basis.

[113]      While I
accept that the plaintiff’s symptoms fluctuate (she has good days and bad) I do
not accept the defendants’ position that the plaintiff’s injuries caused by the
motor vehicle accident had largely resolved by the middle of 2008.  Not
surprisingly, the plaintiff’s symptoms are aggravated by certain recreational
and work-related activities.  As Dr. Hershler testified, the trapezius
muscle is a big worker muscle and is the primary upper body muscle we use for
carrying weight.

[114]     I accept
that managing the relatively persistent pain and discomfort attributable to
these injuries has contributed to the plaintiff becoming somewhat more
withdrawn and less social.  Although the evidence was relatively scant on this
point, I also accept that the plaintiff’s injuries have contributed to her
withdrawal from some of the recreational activities she enjoyed in the past.  Accordingly,
I find that the injuries sustained in the motor vehicle accident have resulted
in some loss of enjoyment of life and some impairment of the plaintiff’s social
relationships.  I also accept that the injuries have taken an emotional toll on
the plaintiff.  She is carrying the burden of supporting herself and her
daughter as a single mother and accepts work extensions to do outside letter-carrying
duties to enhance her income even though she occasionally experiences pain as a
result, which she manages with an analgesic.

[115]     The pain
and loss of enjoyment of life the plaintiff has experienced since the accident are
not, however, solely attributable to the injuries caused by that accident.  There
are other significant contributing factors unrelated to the motor vehicle
accident.

[116]      First, I
accept that the plaintiff severely injured her low back while lifting a heavy
parcel at work in July 2008 and that she aggravated that unresolved injury in
May 2009 while walking up stairs delivering mail.  She was off work for six
weeks on workers’ compensation with the original injury and for six days when
she aggravated that injury close to a year later.  She attended for
physiotherapy treatments after the first injury and chiropractic treatments
when she aggravated that injury in May 2009.

[117]     By
comparison, the plaintiff missed a day or two of work after the motor vehicle
accident and unreasonably delayed getting any treatment for the injuries she
sustained in the accident for three and a half years.  I recognize that the
amount of time a person is off work as a result of an injury does not, by
itself, necessarily reflect either the extent or permanence of that injury.  The
length of time the plaintiff was off when she injured her low back at work,
coupled with the persistence of her pain symptoms in relation to that injury
does confirm, however, that this injury was a significant and lasting event.

[118]     Although
the plaintiff sought to minimize the nature of her low back injury in her
testimony, I am satisfied on the evidence that her low-back pain has also been
a relatively persistent feature of her daily life since July 2008 and that it,
too, has affected the plaintiff’s ability to discharge her job duties without
pain, impaired her social relationships and curtailed her recreational
activities.

[119]      To a
lesser extent, I am also satisfied that the plaintiff has suffered and will
continue to suffer from chronic and sometimes disabling right knee pain.  I am
satisfied that her condition is not attributable to the motor vehicle accident
but, rather, to retropatellar arthritis.

[120]     Given the
effects of the plaintiff’s ongoing low back injury and the fact that she has
been diagnosed with retropatellar arthritis in her right knee, it is not
surprising that she experiences stiffness and pain while she is in a hunched
and knee-bent position riding on the back of Mr. Ward’s motorcycle – a
bike he admits was not designed for long-haul trips.  While I do not doubt the
plaintiff experiences neck and upper-back pain on these recreational outings, I
am also satisfied that she generally understated the discomfort she experiences
while doing recreational activities that are attributable to her low back and
knee.

[121]     The
challenge in this case, in light of the findings of fact and credibility I have
made, is to fairly compensate the plaintiff for the injuries she suffered as a
consequence of the motor vehicle accident.  I find that despite the
difficulties arising from both the manner in which the plaintiff gave her
testimony and the substance of her evidence on some key points, the medical
evidence does support a conclusion that the pain, loss of amenities and loss of
enjoyment of life experienced by the plaintiff are primarily attributable to
the injuries she suffered in the motor vehicle accident. I consider the
persistent low-back pain and right knee pain, which were not caused by the motor
vehicle accident, to be secondary but nonetheless significant contributors to
these losses, which will be reflected in a discount to the award that would
otherwise have be given for non-pecuniary damages.

[122]     The
plaintiff argues that the authorities support an award for non-pecuniary
damages in the range of $80,000 – $90,000. The defendants submit that an
appropriate award for non-pecuniary damages is in the range of $25,000 –
$40,000. Factoring in the submissions of counsel and the authorities put before
me as best I can, I find that a fair and just award for the non-pecuniary
damages the plaintiff suffered as a consequence of the motor vehicle accident
is $60,000.

[123]     I turn
next to consider whether the award should be reduced on account of the
plaintiff’s failure to mitigate her damages by obtaining medically recommended
treatment in a timely way following the accident and adhering to an exercise
regime designed by her physiotherapist to reduce the pain she has experienced
since.

[124]    
The test for failure to mitigate is set out in Chiu v. Chiu, 2002
BCCA 618 at para. 57:

The onus is on the defendant to
prove that the plaintiff could have avoided all or a portion of his loss.  In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things:
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably.  These principles are found in Janiak
v. Ippollito, [1985] 1 S.C.R. 146.

[125]     As to the
first component of the test, I am satisfied that the plaintiff acted
unreasonably in failing to follow Dr. Dyment’s repeated recommendations
(confirmed by others) that she "really needed" an active
rehabilitation program overseen by a qualified physiotherapist.  I reject the
plaintiff’s cost-based explanations for failing to follow through with this
treatment recommendation.  I do not accept the plaintiff’s position that ICBC
refused to pay for the recommended treatment and, as a consequence, the
defendants should be estopped from advancing this argument.

[126]     In my
view, the plaintiff’s evidence was clear that what ICBC was refusing to pay for
was any additional user fees that might be charged in connection with the
treatment.  In other words, ICBC did agree to pay for up to 12 physiotherapy
sessions but not for any surcharges a physiotherapist might charge until such
time as liability for the accident had been determined.  I am satisfied that
the plaintiff understood this.  Further, I am satisfied that, even assuming she
could not receive physiotherapy treatments without paying user fees (an
assumption perhaps unduly favourable to her given Mr. Klyne’s policy of
not charging user fees and the fact that the plaintiff likely knew this because
she had seen him before for treatments in relation to her low back injury) she
was well able to afford the cost of user fees.  Her adherence to the view that
she could not afford the user fees associated with physiotherapy even after
becoming a permanent part-time employee of Canada Post when she knew she would
be reimbursed for payment of user fees is not credible and I reject it.  I am
satisfied that in all the circumstances the plaintiff had no reasonable excuse
for failing to follow the sensible, clear and repeatedly reinforced treatment
recommendations of her physician for some three and a half years.

[127]      Further,
the plaintiff admitted that she has not followed the exercise regime Mr. Klyne
designed for her on discharge from the active rehabilitation program.  Her
explanation for doing so is that she is too tired and that the exercises he
recommended cause her too much pain.  I have no doubt the plaintiff has days
where doing the recommended exercises cause discomfort.  However, in light of
the benefits to be gained by regularly doing those exercises, I do not consider
the discomfort associated with performing them to be a reasonable excuse for
not following the customized exercise regime designed and recommended by Mr. Klyne
at the conclusion of the rehabilitation program.

[128]     As to the
second component of the test, I am of the view the evidence proves that the
plaintiff’s damages would have been reduced had she acted reasonably.

[129]     Dr. Dyment
did not recommend active physiotherapy treatments in the hope that it might
reduce the plaintiff’s symptoms.  Nor did Dr. Dyment merely suggest, as
the plaintiff contends, that he "anticipated" benefit would be derived
from physiotherapy.  To the contrary, as late as August 2009 Dr. Dyment
expressed the view that the plaintiff’s soft tissue injuries continued to be "potentially
reversible with active treatment".  In February 2011, Dr. Dyment
continued to opine that he would have "expected an eventual full recovery"
but that "it has now been three years without active treatment" and
this was at least one factor making "the chances of full recovery much
less."

[130]     More to
the point, when the plaintiff eventually did attend the active physiotherapy
program supervised by Mr. Klyne, she derived benefit from the program.  Her
pain symptoms were reduced.  Mr. Klyne reported that on discharge from the
active rehabilitation program in October 2011 the plaintiff had made good
progress towards achieving her main goal of pain reduction.  The plaintiff
admitted that she improved a little bit through participation in the program.  Mr. Klyne
further testified that the exercise routine he designed for the plaintiff prior
to her discharge from treatment would help her maintain her range of motion and
would control, within more manageable limits, her neck pain and headaches.  He
recommended that the plaintiff continue with the exercise program he designed
for her as well as ongoing physiotherapy treatments that would incorporate both
laser and dry needling.  Dr. Hershler made similar recommendations for
follow-up treatment in October 2011.  The plaintiff has done neither of these
things.

[131]     It is not
merely speculative to suggest that the plaintiff might have been assisted by an
early and continuous commitment to an active rehabilitation program.  I
conclude from this evidence that the plaintiff would have reduced her
non-pecuniary damages had she acted reasonably in the circumstances and
followed the recommendations of her physician and physiotherapist.

[132]     In light
of these findings, I reduce the award for non-pecuniary damages by 20% and
award the plaintiff $48,000.

(b)      Past
Income Loss

[133]     An award
of damages for loss of earning capacity, whether in the past or for the future,
represents compensation for a pecuniary loss.  The goal is to restore the
plaintiff to the position she would have been in but for the defendants’ negligence. 
Accordingly, compensation for past loss of earning capacity is to be based on
what the plaintiff would have earned but for the accident-related injuries: Rowe
v. Bobell Express Ltd., 2005 BCCA 141; M.B. v. British Columbia,
2003 SCC 53.

[134]     The
plaintiff seeks an award for past income loss (from the date of the accident to
the date of the trial on February 25, 2013) totalling $48,052.

[135]     The
defendants take the position that the plaintiff has not made a persuasive case
for ongoing pecuniary loss beyond January 2008 and suggest an award for past
income loss in the range of $5,000 – $7,000 is appropriate.

[136]     The
difference between the parties on this point is rooted in the methodology and
assumptions that should properly underlie fair assessment of the plaintiff’s
past income loss.

[137]     The
plaintiff tendered a report prepared by Kevin Turnbull, an economist,
addressing past and future income loss.  Mr. Turnbull was called as a
witness at trial.  The key assumption underlying Mr. Turnbull’s evidence,
one which governs his approach to both past and future income loss, is that the
plaintiff would, from the date of the accident, continue to make what she
averaged in wages per pay period from July 29, 2007 to November 3, 2007,
adjusted for changes to her hourly rate of pay.  As Mr. Turnbull’s report
makes clear, he was instructed by the plaintiff’s counsel to approach his
assessment of past and future income loss by "assuming that had she not
been injured in the accident she would have continued to work full-time as a
letter carrier to the degree that she had achieved just prior to the motor
vehicle accident."  For the reasons set out below, I do not accept the key
assumption underlying Mr. Turnbull’s evidence.

[138]     The
plaintiff began working for Canada Post in May 2007. Between May and July 2007
the plaintiff was averaging about 37.5 hours every two-week pay period. From
the end of July 2007 to the date of the accident on November 6, 2007 the
plaintiff was able to bid on and obtain full-time hours even though she was a
temporary employee of Canada Post.  As Mr. Gale, the local CUPW president
explained, temporary employees are able to bid on long-term absences and
thereby increase their hours.  The plaintiff did so between July 29, 2007 and
the date of the accident and worked as an outside letter carrier an average of
just under 80 hours per pay period for this three-month term.  In a two-week
period in September 2007 the plaintiff worked or was compensated for close to
95 hours.  Mr. Gale confirmed, and I accept his evidence, that given the
staffing challenges faced by Canada Post at the relevant time, along with the
plaintiff’s seniority compared to other temporary workers bidding for full-time
hours, she would have had continuous access to full-time letter-carrying hours
if she wished.

[139]     At her
hourly rate, the plaintiff made average gross earnings of $2,178.96 per pay
period between the end of July and beginning of November 2007.  As noted above,
Mr. Turnbull was instructed to use the average bi-weekly earnings of the
plaintiff from July 29 to November 3, 2007 as a baseline in estimating her past
and future income loss.

[140]     With
respect to past wage loss, Mr. Turnbull calculated the plaintiff’s absent-accident
earnings (what she would have made from the date of the accident to the date of
the trial assuming that her average gross earnings per pay period would
continue to be $2,178.96, excluding the time she was off work receiving WCB
benefits following her July 2008 low back injury) as $290,662.  He then
deducted the plaintiff’s actual earnings from the date of the accident to the
date of the trial of $217,315 to reach a total reduction in gross wages of
$73,347.

[141]     Mr. Turnbull
then assumed that the plaintiff would, between the accident and trial date,
miss 35 days of work for reasons unrelated to the accident.  Acting on this
assumption, he deducted the equivalent wages for 35 days of uncompensated time
off work from the gross wage loss.  On this point, there is evidence that in
the period between the accident and the date set for trial the plaintiff was
suspended for five days, off work for 10 days due to a labour dispute,
terminated for 10 days before she was rehired, missed five or six days of work
when she reinjured her low back in May, 2009 and was off one other day when she
tripped on some stairs in November, 2011.  This accounts for 31 of the 35
uncompensated, non-working days factored in by Mr. Turnbull.

[142]     The
plaintiff acknowledged that Canada Post management has expressed concern about
her attendance record.  The plaintiff explained that she would tell her
employer she was off work because of pain in her upper back or for some other
reason like a cold.  Apart from the fact this evidence is inconsistent with the
plaintiff’s claim that she did not want to disclose her injuries to her
employer for fear of being perceived "as a cripple" and possibly let
go, it is most unlikely that the plaintiff’s employer would be expressing
concern about her missing four days of work for unexplained reasons between the
end of 2007 and February 2013.  More importantly, Mr. Turnbull’s
assessment makes virtually no allowance for hours the plaintiff was unable to
work for reasons relating to her right knee and low-back injuries that were not
caused by the motor vehicle accident, including extensions to do outside
delivery work.  I conclude from this that some additional allowance beyond the
35 days assumed by Mr. Turnbull should be made for uncompensated time away
from work.

[143]     Net of
taxes and employment insurance premiums, Mr. Turnbull calculated the
plaintiff’s past wage loss as $48,052.

[144]     In his
evidence at trial, Mr. Turnbull testified that while he frequently uses
Census data, not actual earnings, to calculate past and future wage loss, he
prefers using actual earnings over Census data unless there is some reason to
believe that an individual’s actual earnings history is not representative of
what would have happened in the future.  He noted that one of the problems with
using Census data in this case is that mobile carriers tend to make less than
foot carriers and rural carriers make less than urban carriers.  Mr. Gale
also testified that rural carriers are paid a salary instead of an hourly wage
and tend to get fewer hours of work.  The wage difference between urban and
rural carriers was not otherwise quantified in the evidence.

[145]     Mr. Turnbull
testified that basing past and future wage loss calculations on actual earnings
as opposed to Census data comes down to a matter of professional judgment.  While
he acknowledged that the three-month period between the end of July 2007 and
the date of the accident is a small timeframe upon which to base earnings
projections, he thought the three-month period was sufficiently representative
to stand as a basis upon which the plaintiff’s absent accident earnings could
be determined.  He agreed, for obvious reasons, that a longer history of actual
earnings is desirable because more data makes the extrapolation more reliable. 
He agreed with the converse as well – that when you take a relatively short
history of actual earnings and project those earnings forward, the
extrapolation becomes less reliable in the long term.  Mr. Turnbull also
acknowledged that he was asked by the plaintiff’s counsel to base his
calculations on the three-month period of actual earnings as opposed to Census
data.  He testified, however, that if he thought the assumption he was asked to
make made no sense he would advise his client of this, which he did not do. 
Mr. Turnbull also agreed that using Census data carries with it the
advantage of providing the whole earnings history of a defined category of
worker, not merely a snapshot of one person at one point in time.  Having said
that, Mr. Turnbull testified that Census data represents something of
double-edged sword in that rural carriers make less than urban carriers and
that the Census data can skew that difference.

[146]     The
defendants tendered at trial a responding report prepared by an economist, Mark
Gosling, on the issue of past and future income loss.  Mr. Gosling also
testified at trial.  The central difference between the report of Mr. Turnbull
and the report of Mr. Gosling is that Mr. Gosling’s estimate of what
the plaintiff would have earned between the accident date and the date of trial
(as well as thereafter) is not based on the three-month snapshot of the
plaintiff’s actual earnings leading up to the accident but on Census data for
BC female letter carriers adjusted for wage inflation.  On this basis, Mr. Gosling
estimated the absent-accident earnings of the plaintiff from the accident date
to the trial date as $246,323.

[147]     Accepting
all of the other calculations and assumptions made by Mr. Turnbull (that
the plaintiff’s actual wages for that period were $217,315, that she would have
missed the equivalent of 35 days of work for which no compensation would have
been paid for reasons unrelated to the accident, and the same deduction for
income tax and employment insurance premiums) Mr. Gosling calculated the
plaintiff’s past wage loss as $16,595.  Obviously, if more than 35 days of work
were missed for reasons unrelated to the accident, the plaintiff’s past wage
loss attributable to the accident would be less than $16,595.

[148]     In his
evidence, Mr. Gosling was quite critical of Mr. Turnbull’s decision
to rely on the plaintiff’s three-month history of actual earnings immediately
before the accident as a baseline for his calculations.  He testified that this
three-month earning history is simply too short to provide any sort of reliable
indicator of what the plaintiff would have made in the future.  He testified
that this was a "textbook case" where it made sense to use Census
data, it was a "no-brainer" to do so and "no economist"
would use a three-month earning history to project earnings forward by five and
a half years (for past wage loss), let alone up to 25 years to estimate future
loss of earning capacity.  While I would not go this far, I accept as more fair
and reliable the approach adopted by Mr. Gosling.

[149]     As Mr. Gosling
pointed out in his testimony, someone in the plaintiff’s position who has never
before had access to such remunerative employment and is able to successfully
bid on full-time work may accept all of the hours available to them for a short
period but then make different choices.  Equally (and this observation is more
germane to the approach to future income loss) someone at 40 years of age is
likely to make different choices than they would at 50 years of age.  As he
explained, those choices are averaged out in the Census data.  Indeed, insofar
as past wage loss is concerned, he noted that Mr. Turnbull’s approach
would ascribe to the plaintiff an annual income which is 18% higher than the
average full-time, full-year wages for BC female letter carriers.  In my
respectful view, the statistical earnings for BC female letter carriers provide
a better indicator of probable earnings than actual earnings over the
three-month baseline period underlying Mr. Turnbull’s estimates.

[150]     Using that
data, I accept Mr. Gosling’s evidence that, assuming the plaintiff missed
35 days of uncompensated work time for reasons unrelated to the accident, her
past wage loss is $16,595.

[151]     As
indicated earlier in these Reasons, I do not believe the equivalent of 35 days
of missed work for reasons unrelated to the accident adequately takes into
account the hours of work the plaintiff missed for reasons unrelated to the
accident, including the hours she would have had available but been unable to
work due to the symptoms she was experiencing as a consequence of right knee
and low back pain.  I reduce the award by a further 20% to take account of
these factors.

[152]     Finally,
while I accept the plaintiff would likely continue to be periodically
symptomatic following the accident even with the benefit of early treatment, I
am satisfied that early treatment would have enabled her to accept more letter-carrying
extensions and hours than she did.  In the result, I further reduce the award
by 30% to take into account the plaintiff’s failure to mitigate her damages.

[153]     This
calculation results in an award of $8,298.  I round that off to $8,300 and
award this amount for past income loss.

(c)      Future
Income Loss

[154]     A claim
for loss of future earning capacity raises two key questions:  (1) has the
plaintiff’s earning capacity being impaired by her injuries; and, if so (2)
what compensation should be awarded for the resulting financial harm that will
accrue over time?

[155]     It is
incumbent upon the plaintiff to demonstrate a real and substantial possibility
of a future loss of earning capacity: Perren v. Lalari, 2010 BCCA 140
at paras. 30 – 32.  If the plaintiff discharges the burden of proving a
real and substantial possibility that lost capacity will result in a pecuniary
loss, then the plaintiff may prove quantification of that loss either by an
earnings approach or by a capital asset approach.  The assessment of damages is
a matter of judgment, not calculation.  Nevertheless, the award involves a
comparison between the likely future of the plaintiff’s working life if the
accident had not happened with the plaintiff’s likely future working life after
the accident: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA
144 at para. 32.  Insofar as possible, the plaintiff should be put in the
position she would have been in but for the injuries caused by the defendants’ negligence:
 Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185.

[156]     The
plaintiff contends that the most appropriate method to value her future
pecuniary loss is the earnings approach.

[157]     Mr. Turnbull
estimates the plaintiff’s future gross income loss at $15,314 a year.  Once
again, this figure assumes that the plaintiff would have continued to make what
she was making as a temporary letter carrier getting full-time hours in the
period between July 29, 2007 and November 6, 2007.  It is based on assumed
full-time, full-year earnings of $60,619 for 2012 and actual annual earnings
that year of $45,305.  Mr. Turnbull’s calculations also assume that all of
the plaintiff’s future income loss is attributable to the accident.

[158]     Mr. Turnbull
estimates the present value of the loss of $15,314 per year in 2013 dollars
from the date of the trial to age 65 as being $15,166.

[159]     Assuming
that the plaintiff would continue to suffer this rate of loss and that she
would work until the age of 65, Mr. Turnbull estimates the present value
of her future loss of income (adjusted for contingencies relating to mortality
rates and discounted 2.5% per annum, as per regulation) to be $232,252 [($15,166
/ $1,000) x $15,314 = $232,252].

[160]     Counsel
for the plaintiff acknowledges that Mr. Turnbull’s calculations respecting
future income loss do not make any allowance for non-accident related absences. 
The plaintiff submits that the appropriate range for future non-motor vehicle
accident related absences from work is two weeks per year.  Incorporating this
assumption into the applicable formula results in an estimation of the present
value of the plaintiff’s future loss of income as being $223,000.  Assuming an
average of three weeks annual absence from work for non-motor vehicle accident
related reasons would reduce the estimate of the plaintiff’s future income loss
to $218,000.  As a result, the plaintiff seeks an award for future income loss
in the range of $218,000 – $223,000.

[161]     The
defendants take the position that the plaintiff has not shown a real and
substantial possibility of a loss of earning capacity attributable to the
accident.  Alternatively, the defendants submit that the award for future
income loss should be in the range of $20,000.

[162]     I accept
that the plaintiff has shown a real and substantial possibility of a loss of
earning capacity as a result of the accident.  While unexplored work
accommodations may attenuate that loss somewhat, the plaintiff’s injuries are
persistent, likely to be with her on at least an intermittent basis in the
future and likely to affect her ability to accept all of the work hours that
will be available to her, particularly load-bearing activities like letter-carrying
extensions.  I am satisfied that she has met the test set out in Perren v.
Lalari.

[163]     For the
reasons expressed above, however, I do not accept the methodology employed by Mr. Turnbull
in estimating the plaintiff’s future income loss.  I am even less attracted to
utilizing the plaintiff’s income in the three-month period immediately
preceding the accident as a baseline for extrapolating future loss of income.  As
with the award for past income loss, I accept Mr. Gosling’s evidence that
utilizing Census data is more likely to be productive of a fair and reasonable
award.

[164]     According
to Census data, BC female letter carriers working on a full-time, full-year
basis typically earn about $52,103 per year.  If the plaintiff’s future
earnings are assumed to be in line with the statistical average, actual
earnings are estimated at $43,305 (the same amount used by Mr. Turnbull)
and an assumption is made that 75% of the earnings reduction is attributable to
the injuries the plaintiff sustained in the accident, the annual loss would be
$5,098.50 ($52,103 – $45,305 x 75% = $5,098.50).  In my view, an assumption
that 75% of the plaintiff’s future earnings reduction is attributable to the
injuries she suffered in the accident is a reasonable one in all the
circumstances.

[165]     Mr. Turnbull
estimates the present value of $1,000 of income lost annually from the trial
date to when the plaintiff turns 65 years of age to be $15,166.  Mr. Gosling’s
multiplier (adjusted only for discounting at 2.5% per annum and normal Canadian
female survival risks as indicated by Statistics Canada’s 2000 – 2002 Life
Tables) is $15,168, a figure very similar to the multiplier used by Mr. Turnbull.

[166]     Based on
an annual loss of $5,098.50 and a multiplier of $15,168, the present value of
the plaintiff’s future loss is $77,334.

[167]     As noted
above, the multipliers used by both Mr. Turnbull and Mr. Gosling are
adjusted only for mortality rates and discounting.  As Mr. Gosling points
out in his report, further refinements to the multiplier are available to
account for the possibility of labour force withdrawal before age 65 or the
possibility of working beyond age 65.  Factoring in a non-participation
contingency based on 2006 Census data for BC females with a post-secondary,
non-university certificate, the multiplier from the trial date to an assumed
retirement age of 65 is $12,438.  Utilizing this approach, and basing it on an
annual loss of $5,098.50, the present value of the plaintiff’s future loss is $63,415.

[168]     The
approach to future income loss is a matter of judgment, not calculation.  There
is evidence before me that the plaintiff may be more capable of engaging in
light to medium intensity work-related duties than she considers herself to be. 
There is also evidence before me that the plaintiff has not fully explored
accommodations available to her in the workplace that may permit her to
tolerate more hours than she is currently working.

[169]     I award
the plaintiff $60,000 for loss of future earning capacity.  I find that the
plaintiff’s disability would have been reduced and her future capacity to do letter-carrying
work enhanced had she taken the steps that were reasonable in the circumstances
and committed herself to an early treatment program for her injuries.  In the
result, I would similarly reduce the award for loss of future earning capacity
by 30% to take account of the plaintiff’s failure to mitigate her damages.  I
award the plaintiff $42,000 under this head of damages.

(d)      Special
Damages

[170]     I have
recalculated the plaintiff’s claim for special damages in accordance with the
agreement of counsel and award $131.70.

H.       Summary

[171]     In
conclusion, I award the plaintiff:

(a)      Non-pecuniary damages:
$48,000

(b)      Past income loss: $8,300

(c)      Loss of future earning
capacity: $42,000

(d)      Special damages: $131.70

Total:  $98,431.70

[172]    
Unless there is some reason that makes such an order inappropriate, the
plaintiff will have her costs at Scale B.

“FITCH J.”