IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130625

Docket: M093384

Registry:
Vancouver

Between:

S.R. and F.R.

Plaintiffs

And

Edoardo Trasolini,
E. Trasolini Pool
Construction Ltd. and John Doe Corporation

Defendants

Before:
The Honourable Madam Justice Ballance

Reasons for Judgment

INTRODUCTION

[1]            
On July 20, 2007, the plaintiff’s sedan was struck from the rear by
a pick-up truck driven by the personal defendant (the “Accident”).  Liability
for the Accident has been admitted.

[2]            
The plaintiff, S.R. (“Ms. R.”), asserts that the injuries flowing
from the Accident have severely impacted her life and seeks damages under the
usual heads.  She is one of two plaintiffs in this action.  This trial was
confined to her claim only.  Central to the dispute is whether the Accident
caused the development of Ms. R.’s chronic pain condition/fibromyalgia
with associated emotional and cognitive difficulties.  Encompassed within that
issue is the question of whether she had been suffering from chronic physical
pain and/or psychological maladies prior to the Accident.  Also controversial is
Ms. R.’s alleged diminished earning capacity.

BACKGROUND

·       Education
and Experience

[3]            
Ms. R. was just shy of her 51^st birthday at the time of
trial.  She is an articulate, well-educated woman, who is fluent in several
languages.

[4]            
Ms. R. is a devoted adherent to the Bahá’í faith.  As an active
Bahá’í, her religion acts as her moral compass in life and, as she put it,
takes precedence over everything.  Followers of the Bahá’í teachings commit to
serve humanity in the broad sense – a tenet exemplified by the manner in which Ms. R.
has lived her life.

[5]            
Born in Iran, Ms. R. relocated to Italy where she spent 13 years
before immigrating to Canada in 1983.  While in Italy, she completed the first half
of a six-year program to study medicine.  After arriving in British Columbia,
she took undergraduate classes at the University of Victoria for three years
while doing regular shift work at the video rental business she established with
her brothers, who were also university students at that time.  Upon
subsequently moving to Vancouver, Ms. R. attended the University of
British Columbia (“UBC”) for two years and travelled to Italy on a scholarship
to obtain certification to teach Italian.  In 1989, she returned to UBC where
she completed her bachelor of arts degree in languages and literature.

[6]            
After receiving her degree, Ms. R. lived in Malta for one year
doing volunteer work in a Bahá’í sponsored venture. 
Thereafter, in about 1990, she travelled around Europe and briefly returned to
Canada before relocating to Romania to serve in a volunteer capacity to help
establish Bahá’í communities in that country.  While there, she was elected to
the national body governing the Bahá’í organization in Romania.  Ms. R. recalled
it as the most fulfilling time of her life.

[7]            
Approximately five years later, in 1995, Ms. R. returned to Canada
and enrolled in courses at UBC with the idea she might pursue a master’s
degree.  At the same time, she performed volunteer community service under the
auspices of the Bahá’í religion.  As well, she worked as a case manager for the
British Columbia Council of Human Rights where her duties included analyzing
incoming complaints, compiling reports and making recommendations for
individual cases.

[8]            
In 1997, Ms. R. accepted an offer to serve as a volunteer at the
Bahá’í headquarters in Haifa, Israel.  She managed and directed the department
that welcomed visitors and pilgrims to the Bahá’í holy places.  She was
responsible for the personnel in that department and interacted with the
various component departments.  Her expenses for housing, food and clothing, as
well as to travel home once per year, were covered.

[9]            
In the years leading up to the Accident, Ms. R. periodically
experienced episodes of neck, shoulder and back pain, and occasionally received
manual therapy for some of her symptoms.  Her regular family doctor was Dr. Mitchell
Mendelson who owned and operated a walk-in clinic (the “Mendelson Clinic”)
which was near to the apartment that Ms. R. shares with her mother.  When Ms. R.
attended the Mendelson Clinic, she would see Dr. Mendelson if he was
available or would otherwise consult one of his physician colleagues.

[10]        
After completing her five-year tenure in Israel, Ms. R. came back
to British Columbia and, in 2002, took a full-time paying position with
Goldline Telemanagement Inc., an international company that provides telephone
services and parts.  She was the sales manager for the territory spanning from
British Columbia to Saskatchewan and was responsible for managing and training
field and office employees.  Her annual salary was $28,800.  While at Goldline,
Ms. R. continued to carry out volunteer work for Bahá’í related endeavours.

[11]        
In 2004, Ms. R. had massage therapy to relieve muscle tension and
tightness in her lower back on three occasions in the concentrated period
between February 12 and 19.  Her evidence is that her discomfort
resolved with the third session and she did not feel the need to continue.  She
returned for a single massage treatment on October 6, 2004 complaining of
a stiff neck.  Ms. R. testified that her neck discomfort resolved with a
single treatment.  The massage therapist did not testify.  Ms. R.’s
testimony is supported by the therapist’s records in evidence and I accept
it as accurate.

[12]        
Ms. R. testified that in July 2004, she strained her back from
lifting boxes at work.  She received two chiropractic treatments that month
which she claims resolved her symptoms.  Supportive of Ms. R.’s testimony
is the chiropractor’s intake form which documents her complaint as “lower back
pain when lifting”.  However, that form, which was not filled out by Ms. R.,
also describes the initial onset as “chronic”.  Ms. R. credibly denied
having chronic back pain at that time or before then.  She likewise denied
having used the descriptor of “chronic”, explaining that she may have said that
her pain was ongoing, by which she intended to convey that it had not resolved
from the lifting mishap.  Her testimony is harmonious with the preponderance of
the medical evidence, and I accept it.

[13]        
Ms. R. did not see a doctor in 2004 about any of the foregoing
complaints.

[14]        
On December 20, 2004, she saw a doctor at the Mendelson Clinic
complaining of insomnia, low energy and impaired concentration and memory, and
reported that she had taken two weeks off from work.  According to the chart
entry from that date, she revealed that she had been experiencing flashbacks to
a sexual assault that she had endured at the hands of a family member when she
was a little girl.  She followed up with the clinic doctor two days later and
reported feeling more anxious and tightness in her chest.  In the meantime, on December 21,
she had a massage to relieve the stiffness through her upper back and
shoulders.

[15]        
The evidence establishes that in December 2004, Ms. R. was
laid off from Goldline, which enabled her to increase her volunteer work in the
Bahá’í community.  Throughout most of 2005, she collected employment insurance
benefits.

[16]        
Ms. R. made no complaints of anxiety or psychiatric-type symptoms
and received no kind of manual physical therapy in 2005.  During that year, she
saw Dr. Mendelson or his colleague at the Mendelson Clinic on one occasion
only for an unrelated matter.

[17]        
At the beginning of December 2005, Ms. R. secured a full-time
paid position as the regional coordinator for the Bahá’í Training Institute for
the British Columbia and Yukon region.  Her position required her to travel and
interface with others about half the time, and otherwise she was able to work
from her home office.  She consulted with agencies and communities throughout
her base, as well as the Bahá’í national body, and trained personnel working at
the grassroots level in the various communities.  Ms. R. loved her work and
happily devoted long hours for a monthly salary of approximately $3,000.  She
testified that she had no physical limitations or difficulties coping with the
demands of her job, although she sometimes found the travelling caused her
discomfort.  At the same time, she also taught Italian at the Italian Cultural
Centre, approximately 6 to 8 hours per week, for which she was paid an hourly
rate of $28.

[18]        
On September 11, 2006, Ms. R. was examined at the Mendelson
Clinic at which time she reported low back pain and discomfort in her
paraspinal muscles.  At trial, she attributed her discomfort to stress in her
work situation. Complying with her doctor’s advice that she exercise as an
outlet for stress relief, she began to use free weights and exercise machines
at a local gym.  She did not have the benefit of a personal trainer.  Less than
a month later, she returned to the Mendelson Clinic complaining that she had experienced
headaches and shoulder pain for the preceding three weeks.  The doctor charted
overuse of the weights, with incorrect technique, and recommended that she
attend physiotherapy.  The corresponding physiotherapist’s records indicate
that Ms. R. reported that the symptoms in her upper back and shoulders had
been triggered by exercises at the gym.

[19]        
Ms. R. had four additional physiotherapy treatments and two
massages in 2006.  The physiotherapist instructed her on the implementation of
an exercise regimen, and I find that she reasonably complied with it.  Ms. R.
persuasively testified that by December 18, 2006, her symptoms had
completely resolved.

[20]        
Four months passed before Ms. R.’s next complaint of any physical
pain.  On April 18, 2007, she told Dr. Mendelson she had experienced persistent
left shoulder pain for four days.  I accept her evidence, which is
consistent with the notation in her clinical chart, that these symptoms
developed after she had lifted a heavy computer bag and twisted the wrong way while
travelling for work.  Pursuant to her doctor’s advice, she saw her
physiotherapist two days later and pinpointed the same movement as the trigger
of her pain.  One additional treatment appeared to resolve her symptoms.  She
also told her physiotherapist that five years earlier she had hurt her left
shoulder while skiing.  I accept Ms. R.’s evidence that her skiing injury
had resolved long before her visit to that physiotherapist.

[21]        
Due to budget constraints, Ms. R. was laid off from the Bahá’í Training
Institute in May 2007.  That month she complained to the doctor of
decreased energy, appetite, concentration and motivation, as well as depression
and insomnia.  As was the case when she last reported such symptoms some two and
a half years previously on December 20, 2004, she also disclosed the
sexual abuse she had suffered as a child.

[22]        
Ms. R. was referred to Dr. A. Sidky, a psychiatrist, whom she
saw on May 24, 2007.  Before she met with him, she had learned that her
paid position with the Bahá’í Training Institute was coming to an end. 
According to Ms. R., Dr. Sidky spent a great deal of their session
asking for details about her parents and other matters she considered to be
collateral.  He also advised her to participate in group therapy.  However, she
felt too much shame around the abuse issue to raise it in that forum.  Ms. R.
stated that, in the end, she was dissatisfied with Dr. Sidky and did not
return, opting instead to try to sort out the matter on her own.

[23]        
In his consult letter to the referring physician at the Mendelson Clinic,
Dr. Sidky described the reason for the referral as Ms. R.’s lack of
self-confidence, and that she did not view herself as important.  The consult
letter does not mention Ms. R.’s historic sexual abuse.  Dr. Sidky
did not testify and his letter was not admitted into evidence for the truth of
its contents or as opinion evidence.  It was Ms. R.’s understanding that
she had been referred to Dr. Sidky because of the difficulties she had
been encountering in relation to the flashbacks of her sexual assault, and that
is why she attended.  She testified that her lack of self-confidence mentioned
by Dr. Sidky in his consult letter was related to those childhood abuse
episodes which brought forth other negative emotions.  She would not agree that
she had gone to see him because she was disillusioned or unhappy with her job
at the Bahá’í Training Institute.  The probabilities of the situation support
her evidence

[24]        
Ms. R. began to receive employment insurance benefits and decided
to take some time to consider her vocational options and future.  One of her
areas of general interest was the field of education.  In June 2007, she
applied for a full-time clerical position at the UBC bookstore as a means of “getting
her foot in the door” at UBC in furtherance of possibly establishing a career connected
to education.  She did not get the job.

[25]        
Also in June, Ms. R. tripped and fell onto her right shoulder.  Dr. Mendelson
diagnosed a possible rotator cuff injury and prescribed ice, rest, Advil and
physiotherapy.  She received three physiotherapy treatments from Cathy Yackness
and two chiropractic sessions in respect of her shoulder during the last four
days of June.  Before then, Ms. R. had not seen her chiropractor for
nearly three years.  On her third physiotherapy appointment on June 29, she
told Ms. Yackness that her shoulder was feeling much better.  Ms. R. testified
that she did not feel the need to continue treatment after that session.  It
was clear to Ms. Yackness that Ms. R. had improved after the first
treatment, and that she had a significant positive response to the therapy.  Ms. R.
was next seen by a doctor at the Mendelson Clinic on July 9, 2007,
complaining of a bad cold.  Her chart contains no mention of any residual
shoulder difficulties or physical problems.  I conclude that Ms. R.’s
right shoulder symptoms had resolved before that appointment.

[26]        
At the time of the Accident on July 20, 2007, Ms. R.’s sole
gainful employment was her part-time teaching position at the Italian Cultural
Centre.

·       The
Accident and its Aftermath

[27]        
On the rainy afternoon of July 20, 2007, Ms. R. slowed to turn
from Marine Drive onto Taylor Way in West Vancouver.  She had to apply her
brakes abruptly to avoid hitting the car in front and was struck from the rear
by the pick-up truck driven by the personal defendant.  Ms. R. recalled
that upon impact her whole body moved forward and back and that she
instinctively extended her right arm to restrain the movement of her elderly
mother, who was a passenger in the front seat.

[28]        
Ms. R. described the force of the impact as medium.  Her mother, F.
R., also credibly testified that the collision was of medium, not small, force,
and that she too had been injured.  The personal defendant testified that he
had merely “nudged” into Ms. R.’s vehicle.  He remembered seeing damage to
the body of her sedan from the Accident and claimed there had been none to
his.  A metal hitch consisting of two loops extended at the front of the
defendant’s truck.  The photographs of the damage done to Ms. R.’s
vehicle, which totaled approximately $5,000 in repairs, show that the truck hitch
penetrated the rear bumper of her car with enough force to bore a hole into
it.  That photographic evidence served to undermine the defendant’s
characterization of a nudge-like collision.

[29]        
Ms. R. was shaking and trembling with shock at the scene.  Within
hours, she began to feel pain in her neck area and shoulders.  Believing that
her symptoms would subside in time, she refrained from seeing Dr. Mendelson
for a week.  When her pain instead intensified, she attended the Mendelson
Clinic on July 27.  A regimen of physical and massage therapy was advised.

[30]        
 Ms. R. diligently complied and underwent 47 such treatments
over the course of the ensuing seven weeks.  During those sessions, she consistently
reported pain, largely in her neck, shoulders, and upper back.  She also experienced
headaches and, over time, began to develop tightness and discomfort along her lower
back.  I do not doubt Ms. R.’s evidence that she carried out the daily
strengthening and stretching exercises recommended by her physiotherapist as
best she could, given her discomfort.

[31]        
Ms. R. also tried several acupuncture treatments throughout the
fall of 2007.  She understood she would experience a dramatic improvement after
only five sessions, but found them to be only marginally beneficial. 
Disappointed with that course of therapy, she resumed her regular physiotherapy
sessions.  Although the manual treatments Ms. R. received in this period
helped reduce the intensity of her physical pain, for the most part they
produced temporary relief only.

[32]        
Ms. R. followed up at the Mendelson Clinic on September 14, October 25
and November 29, 2007 in respect of her accident-related injuries.  She
was sent for various investigations including x-rays of her neck, shoulder and
lumbosacral spine.  The x-rays of her shoulders were unremarkable; those done
of her neck and back revealed degenerative changes at some levels of her spine. 
There was consensus among the medical experts that these “wear and tear”
degenerative changes were very common in people of Ms. R.’s age and that
there was insufficient evidence to link them with the symptoms that emerged
after the Accident.  In closing submissions, defence counsel confirmed that he was
not making anything of these findings.

[33]        
Around November 2007, Ms. R. successfully applied to convert
her regular employment insurance benefits to medical insurance benefits.  She
continued to hold her teaching position at the Italian Cultural Centre.

[34]        
Ms. R. was committed to trying to find relief and hoped for a
resolution of her ongoing symptoms.  To that end, she maintained regular
appointments at the Mendelson Clinic during the first half of 2008.

[35]        
The evidence shows that Ms. R. enjoyed some improvement of her
symptoms, particularly in the early spring of 2008.  That said, I find
that her overall condition fluctuated and she was never entirely pain free.  Dr. Mendelson
made the point that it is not uncommon for soft tissue symptoms to wax and
wane.  He was not convinced that Ms. R. had genuinely been enjoying a
pattern of improvement in this timeframe.

[36]        
Ms. R. is hard of hearing in both ears.  Prior to the Accident, she
had been receiving medical attention for her hearing loss at the Western
Institute for the Deaf and Hard of Hearing (the “WIDHH”).  She testified that
after the Accident, she did not feel capable of seeking employment without
assistance.  She learned that the WIDHH had resources available to help her
look for a job and enrolled in its job search program in about the spring of 2008. 
Various employment counsellors helped her update and modify her résumé, prepare
cover letters and apply for work.

·       Decline
in 2008

[37]        
Ms. R.’s uncontradicted evidence is that in around June 2008,
the Insurance Corporation of British Columbia discontinued funding for her
physiotherapy and other manual treatments.  That summer marked a turning point
for the worse.

[38]        
Ms. R.’s baseline pain increased significantly and became more
widespread, moving into her hips and groin area, knees and elsewhere.  Her sleep
was poor, her mood was low, she started to encounter difficulty with simple
movements like walking and lifting her arms and felt overwhelmed.  She
effectively abandoned any meaningful job search efforts with the WIDHH from
approximately June until December 2008.

[39]        
Ms. R. was not able to identify a specific event or situation that may
have precipitated or triggered the expansion of her physical pain and
significant decline other than the cessation of her manual therapy treatments.

[40]        
Her condition continued to spiral downwards into the fall of 2008.  By
September, her tolerance for physical activity was very low and her mobility
had become severely restricted.  She essentially became housebound, spending
most of her time in bed, and gradually put on weight.  Her energy was depleted
and she experienced aspects of cognitive decline, such as trouble thinking and impaired
concentration.  Ms. R. eventually found that she was not able to perform
her modest teaching duties at the Italian Cultural Centre and resigned.  Reluctantly,
she also stepped down from the three highly-placed volunteer positions she held
with various Bahá’í organizations, which she thoroughly enjoyed, because she
felt she would be unable to carry out her tasks.

[41]        
At some point within this period, or possibly earlier, Ms. R.
obtained a handicap parking pass to curtail the amount of walking required when
she drove her car to her various appointments.

[42]        
Ms. R. described this as the most terrible time of her life; she
felt disconnected from the world and “harassed” by the pain which appeared to
have no end in sight.  At her lowest point, which spanned approximately six
months, she was unable to attend to her own personal hygiene and private grooming
without her mother’s assistance.  She felt very ashamed about the depth of her
reliance on her mother.  At times, she felt suicidal.

[43]        
Soon after the Accident, and during subsequent periods of time, Ms. Yackness
again treated Ms. R.’s shoulder area.  She testified that after the
Accident, her treatment of Ms. R.’s shoulder and in general was
considerably different than it had been before.  In June 2007, Ms. Yackness
had provided physical therapy to the front aspect of Ms. R.’s right
shoulder, whereas in August – after the Accident – she treated the back of
her shoulders, as well as her neck and back.  Eventually, her treatment expanded
to Ms. R.’s hips, pelvis, groin area and the joints in her thoracic spine. 
The sessions after the Accident were more time intensive and longer in duration,
and Ms. R.’s progress fluctuated, as did her subjective complaints of pain.

[44]        
Ms. R. resumed physiotherapy on September 6, 2008.  Before the
end of that year, she saw Dr. Mendelson or one of his colleagues several
more times reporting increased and diffuse pain.  She also complained that the
naproxen she had been prescribed caused her gastrointestinal upset so she was
given an alternate anti-inflammatory to try together with analgesic
medication.  Because the conventional medications she had tried were not
well-tolerated, Ms. R. also consulted a homeopathic doctor to explore the
prospect of using a natural source of pain medication.  She explained that by
that stage, she was prepared to try anything to diminish her symptoms.

[45]        
Between October and November 2008, Ms. R. attended at the
hospital emergency department four times complaining of diffuse musculoskeletal
pain and seeking a referral to a physiatrist and refill of medication.  She was
referred to Dr. Viem Nguyen, a physiatrist.  However, due to her confusion
about the date, she missed the appointment.  She was next referred to Dr. Elliot
Weiss, a physiatrist with St. Paul’s Hospital.

[46]        
Ms. R. was assessed by Dr. Weiss on December 23, 2008 and
was seen by him in follow-up on February 20, 2009.  He ordered additional
diagnostic investigations relative to Ms. R.’s shoulder and sacrum.  His
records indicate that he provided her with a prescription for oxycodone, which she
evidently did not fill.  Ms. R. agreed that she declined a prescription
from Dr. Weiss for antidepressant medication.  Dr. Weiss did not testify
at trial.

·       Events
in 2009 and 2010

[47]        
Ms. R. renewed her employment search with the assistance of the
WIDHH in about December 2008.  The vast majority of positions she applied
for in the ensuing months were with the Vancouver Organizing Committee for the
2010 Olympic and Paralympic Winter Games (“VANOC”).  I accept her evidence
that as her condition persisted, she felt increasingly less capable of handling
positions with a high level of supervisory responsibility and modified her
résumé numerous times to reflect her lesser ambitions.

[48]        
Ms. R.’s routine of regular physiotherapy continued throughout
2009.  She also received many massage treatments and followed up with Dr. Mendelson
or a colleague in relation to her Accident-related injuries reasonably consistently.

[49]        
On April 2, 2009, Ms. R. became a patient of Dr. Nguyen,
the physiatrist to whom she had been originally referred in 2008.  She recounted
to him that her symptoms had expanded in June and July 2008 and that
her pain had become more pronounced, resulting in significant restrictions to
her mobility, poor sleep and low mood.  She also told him that her symptoms had
progressively improved in the preceding couple of months and that she was
maintaining an active exercise program, consisting of core strengthening and
stretching and using a stationary bicycle.  She further reported being able to
carry out activities of daily living with greater ease.  Ms. R. testified
that as her pain symptoms improved, so too did her downcast mood and appetite,
but that she continued to struggle with her sleep.

[50]        
Dr. Nguyen’s impression at that time was chronic neck and low back
pain.  He also suspected that Ms. R. may have suffered from “frozen
shoulder”.  He encouraged her to incorporate water-based activities into her exercise
routine and discussed with her the outpatient chronic pain program at St. Paul’s
Hospital (the “Pain Program”).  After her initial appointment with Dr. Nguyen,
Ms. R. sought a second opinion from another physiatrist.  He advised her
to continue seeing Dr. Nguyen.  She also switched physiotherapists from
time to time in the hope that they would give her better treatment results.

[51]        
On May 14, 2009, Ms. R. saw Dr. Romayne Gallagher.  Dr. Gallagher
has extensive experience in the areas of palliative care, chronic pain and pain
management.  She is currently the head of the division of palliative and
residential care in the Department of Family and Community Medicine and the physician
director of the palliative care program at Providence Health Care.  She is also
a clinical professor in palliative care at the Faculty of Medicine at UBC and
is a part-time consultant at the St. Paul’s chronic pain clinic.  Acting in that
latter capacity, she pre-screens potential candidates for enrolment in the Pain
Program and evaluated Ms. R. for that purpose.

[52]        
During that assessment, Ms. R. reported pain in multiple areas and
drew a pain diagram that, in Dr. Gallagher’s view, matched many of the classic
fibromyalgia tender points.  Ms. R. also told Dr. Gallagher that her
pain fluctuates considerably, varying between being tolerable and severe.  She
disclosed that when her pain is bad, she feels irritable and very depressed.  She
further confided that after the Accident, she was no longer able to derive much
enjoyment from former pleasures such as food or socializing, felt like her life
was on hold and sometimes felt suicidal.

[53]        
Dr. Gallagher’s physical findings in conjunction with Ms. R.’s
complaints and the symptoms of her pain pattern suggested musculoskeletal pain
with mood disorder secondary to chronic pain and insomnia.  Dr. Gallagher
believed that Ms. R.’s presentation had elements that met the criteria for
fibromyalgia.

[54]        
I accept Dr. Gallagher’s evidence that, consistent with her
general practice, she provided Ms. R. with a two or three weeks’ supply of
an anticonvulsant called Lyrica, as well as an antidepressant called Cymbalta. 
Indeed, her consult report of May 14, 2009 records that she had started Ms. R.
on Cymbalta.  Both types of medications have been shown to relieve symptoms
associated with fibromyalgia.  Ms. R. testified that she tried both
medications, however, she was not able to recall how many tablets of either she
may have taken.  According to her, Lyrica was effective initially but then made
her feel drowsy and caused diarrhea, nausea and vomiting.  She recounted
similarly adverse effects from taking Cymbalta.  Ms. R.’s medication
intolerance was not limited to those drugs.  Prescription and over-the-counter
analgesics and anti-inflammatories also caused her gastrointestinal problems
and stomach pain.

[55]        
Dr. Gallagher explained that the Pain Program is a
multidisciplinary treatment protocol that works with patients in individual and
group settings to help them develop multiple appropriate methods, including non-pharmacological
skills, to manage pain while improving function.  She considered Ms. R. to
be an excellent candidate to attend.

[56]        
Ms. R. was seen again by Dr. Nguyen on August 12, 2009. 
They discussed the management of her pain symptoms and the role that the Pain
Program would play in educating her about non-medication management of her
chronic pain.  Dr. Nguyen testified that the discussion upset Ms. R.
because she was looking for a wholesale cure and not merely strategies to cope
with an ongoing pain condition.

[57]        
While awaiting admission into the Pain Program, Ms. R. continued to
receive physiotherapy, as well as some massage, and a series of chiropractic
treatments.  She was periodically seen in follow-up by the homeopathic doctor,
as well as by Dr. Mendelson or a fellow physician.  Ms. R. also
underwent additional assessments as part of the pre-admission screening
protocol preparatory to participate in the Pain Program.  Those included an
evaluation by a psychiatrist to determine whether she would benefit from the
program and by a physiotherapist to ascertain her physical ability to attend. 
The assessors identified concerns about whether she was sufficiently mobile to
participate and encouraged her to increase her daily movement and exercise. 
Eager to attend and determined to gain admission, Ms. R. gradually built
up her physical stamina to ready herself for enrolment.

·       Pain
Program – 2010

[58]        
Ms. R. attended and actively participated in the components of the
Pain Program from May 18 until June 17, 2010.  She had been very
optimistic about the benefits to be derived from the program.  Although it did
not give her the depth of healing she had hoped for, she learned and
implemented effective techniques to cope with and manage her pain, and was
launched on a path of improved mobility, sleep and reduced pain.  Despite her
progress, Ms. R.’s symptoms continued to wax and wane, which Dr. Nguyen
characterized as typical for persons with chronic pain.

[59]        
Upon her discharge, Ms. R. resumed regular physiotherapy and
massage appointments and, throughout the balance of 2010, was seen in follow-up
at the Mendelson Clinic and the pain clinic and by various physicians,
including Drs. Nguyen and Gallagher and her homeopathic doctor.  She was also referred
to a counselor whom she saw for approximately six months after completion of
the Pain Program.  Those sessions incorporated biofeedback techniques to
improve Ms. R.’s sleep which she found helpful.

[60]        
On July 26, 2010, Ms. R. told Dr. Nguyen that she felt
comfortable to start an employment search and was optimistic she could land a
job.  The next month she likewise reported significant benefits from the Pain
Program to Dr. Gallagher.

[61]        
When Ms. R. saw Dr. Nguyen on September 15, 2010, he was
under the mistaken impression that she had been able to tolerate Lyrica and
suggested to Dr. Mendelson that her dose be increased.  However, Dr. Mendelson
assumed that the specialists were prescribing the medication and took no steps
in that regard.

·      
Events in 2011 and 2012 until Trial

[62]        
Ms. R. followed a similar, although somewhat scaled-back, course of
therapeutic treatments and medical follow-up throughout 2011 and 2012 to the commencement
of trial.

[63]        
Dr. Mendelson closed his clinic in the spring of 2011.  He last saw
Ms. R. on April 20 that year at which time she reported an exacerbation
of neck, shoulder and left hip pain.  A few days later, he completed a medical
report in support of Ms. R.’s application for disability benefits under
the Canada Pension Plan.  On the form, he recorded her diagnosis as musculoskeletal
injury involving her neck, shoulders and low back, leaving her with chronic
pain syndrome.  In the section for prognosis, he wrote “unlikely to see
complete resolution, hopefully to return to the workforce in next six months.” 
All the while and unbeknownst to Dr. Mendelson, Ms. R. had been
sending out batches of résumés with the help of the WIDHH.  They covered a broad
range of potential positions.

[64]        
The defendants made much of the fact that Ms. R. had not made Dr. Mendelson
aware that she had been distributing résumés before and at the time that he
completed the CPP form.  The defence asserts that applying for disability
benefits while at the same time looking for work was not only inconsistent, it
also raises a concern about Ms. R.’s credibility more generally.  In her
testimony, Dr. Gallagher clarified that she was the one who had made Ms. R.
aware of her entitlement to apply for disability benefits because her sense was
that Ms. R. was not assessing services and resources that were available
to her.

[65]        
The theory advanced by the defendants is that by actively submitting
résumés and seeking the assistance of the WIDHH with her job search, Ms. R.
must have regarded herself as being capable of performing full-time work and in
all probability was able to work full-time.  The defendants contend that Ms. R.’s
work capacity potential, as suggested by her actions, had not been adequately
understood by Drs. Mendelson, Gallagher or Nguyen when they composed their
respective expert opinions, discussed later in my reasons.

[66]        
The preponderance of the evidence paints a different story.  Ms. R.’s
search was unfocused and as she aptly characterized it, “all over the map”,
applying for jobs across a wide variety of sectors that she may or may not have
been qualified for or had any realistic prospect of obtaining.  I conclude
that her scattered manner of search was due in large measure to her muddled
thought processes which typified much of that period and was symptomatic of her
condition.

[67]        
Whether due to her own inflated and unrealistic sense of capacity or a
reluctance to accept her fate, or a combination of those or other influences, Ms. R.’s
post-Accident search for work was not reflective of her compromised degree of
functioning.  The evidence I accept overwhelmingly demonstrates that since
the Accident, she has been disabled from working on a full-time basis.

[68]        
Coinciding generally with when she submitted her application for CPP
benefits and discouraged by the lukewarm responses to her job search, Ms. R.
came to realize her limitations and decided to shift her efforts and seek
retraining in languages and teaching.

[69]        
Although she harboured doubts about her physical stamina to attend, in July 2011,
she started a 12-month diploma program at UBC to teach English as a second
language.  I accept her evidence that nearly immediately she found that
the prolonged classroom sitting and level of concentration required to keep up
with the demanding caseload was unsustainable, and withdrew from the course.

[70]        
It subsequently occurred to Ms. R. that she might wish to act as a personal/
life coach for individuals suffering from chronic pain and discussed that option
with Dr. Gallagher.  She pursued that avenue by taking a one-day training
class at a local college in August 2011.  Building on that success, she
enrolled in the first branch of a more intensive course similar in kind and has
been moving through its component sessions over the past six months or so and
plans to continue until completion in July 2012.

[71]        
In March 2012, Ms. R. received these retroactive CPP disability
payments:

·      
seven monthly payments of $548.87 for 2010;

·      
twelve monthly payments of $558.20 for 2011; and

·      
three monthly payments of $573.83 for 2012.

[72]        
Ms. R. was involved in a second motor vehicle accident in April 2012,
shortly before the commencement of trial.  The extent of the evidence about the
collision was little more than Ms. R.’s testimony in-chief that the left
side of her neck, shoulder and chest were injured as a result, which prompted
her to marginally increase the regularity of her physiotherapy sessions.

·       Post-Accident
Travel

[73]        
Between September 2007 and 2011, Ms. R. traveled to various
destinations, including Europe, mostly to attend family functions and usually
in the company of her mother.  The evidence satisfies me that she found each
trip physically challenging and that it was difficult for her to manage her
pain at the destination without the comforts and adaptations available to her
at home.  On at least two occasions, she was not able to cope and returned home
early.

·       Credibility

[74]        
The assessment of Ms. R.’s credibility and the reliability of her
evidence is pivotal in determining her pre-Accident physical health, the
causation of her injuries and her damages.  It is also material to the weight
to be given to the medical opinions to the extent that they are tied to Ms. R.’s
subjective reporting, perception of her symptoms and recitation of her pre-Accident
condition.

[75]        
For the most part, Ms. R. impressed me as a forthright and credible
witness.  There were a small number of deficiencies in her evidence on minor
matters.  Additionally, some aspects of her evidence were unreliable due to her
poor memory occasioned by the Accident.  In evaluating her testimony against
the whole of the evidence, I conclude that the shortcomings are of no
moment and did not taint her credibility at large or on central issues.

[76]        
To this I would add that throughout the course of the trial,
I observed Ms. R. having to stand and reposition herself while in the
courtroom.  I did not find her presentation to be exaggerated or
theatrical; rather, I found it appeared authentic and consistent with her
asserted symptoms of pain and discomfort, basically all over, most of the time.

·       Evidence
of Ms. R.’s Friends and Co-workers

N.N.

[77]        
N.N. was a thoroughly credible and reliable witness.  She has known Ms. R.
since the late 1980s when they were both students at UBC.  The two friends spent
considerable time together while at school and travelled throughout Europe
several times.  In the year or so leading up to the Accident, their
interactions consisted of telephone calls approximately every two weeks and personal
visits three to four times per year, including a family get-together each Christmas
at N.N.’s home on the North Shore.

[78]        
N.N. persuasively testified that when she saw Ms. R. over the Christmas
break prior to the Accident in 2006, she had no noticeable physical
limitations.

[79]        
N.N. described Ms. R. as a bubbly, energetic person with a positive
personality in those pre-Accident days.  After the Accident, the frequency of
their face-to-face interactions diminished largely because Ms. R. had physical
difficulty driving over to visit.  They kept in touch over the phone and talked
mostly about Ms. R.’s pain and the various treatments she was undergoing. 
Ms. R. did not have the same high degree of energy or effervescent
demeanour.

[80]        
On the occasions that N.N. met with Ms. R. after the Accident, she
noticed that her movements were more guarded and far slower, and that she struggled
to lift and move things.  N.N. remembered being particularly shocked in December 2008
when she observed the difficulties that her friend faced in doing the most
simple tasks, such as moving the computer mouse, sitting down and taking a
plate of food.

S.G.

[81]        
S.G. is a student in the Department of Education at UBC.  He too was an impressive
witness.

[82]        
S.G. came to know Ms. R. in 2001 through their shared connection to
the Bahá’í faith.  They had overlapped as regional coordinators for the Bahá’í Training
Institute for a year or so until May 2007.  Through that association, S.G.
interacted with Ms. R. frequently in the year or two preceding the
Accident and occasionally travelled with her throughout the Lower Mainland and
outside of the province by car and air.  Their paths also crossed outside of
the work environment at Bahá’í functions.  S.G. characterized his co-worker as
the “energizer bunny”, and described her as incredibly sociable, an effective
networker and in constant motion.  Although S.G. is about 20 years younger than
Ms. R., her high level of energy made him feel old and often left him
wondering how she was able to maintain such a pace.

[83]        
S.G. did not see evidence of a single physical limitation on Ms. R.’s
part prior to the Accident.  He persuasively recounted the dramatic decline she
underwent following the Accident.  He recalled that the first time he saw her
afterwards, he thought, “wow, she is in a lot of pain” and noticed that she
began to move quite gingerly.  Her personality also changed significantly in
that she seemed deflated, became less social and more reserved and lacked the
same “hop in her step”.  Before the Accident, Ms. R. had never mentioned
to S.G. that she felt pain.  After the Accident, she repeatedly spoke of her
pain and of its adverse repercussions.

[84]        
S.G. explained that in the Bahá’í religion, active service to the faith
is an honour and privilege and is “your life”.  He could see that Ms. R.’s
attendance at Bahá’í-related gatherings became irregular.  In November 2010,
she was nominated by her Bahá’í peers to a council position, but either
declined it or stepped aside shortly after accepting.  Ms. R. testified,
and I accept, that she did so because she was not confident that she could
perform the duties expected of her on account of her Accident-induced
impairments.

[85]        
In the year before the trial, S.G. saw Ms. R. roughly twelve times
at various get-togethers.  It is his impression that in the year or so before trial,
she has become more mobile than she was in the initial few years post-Accident.

Ms. R.’s mother

[86]        
Ms. R.’s mother, F.R., who was 78-years old at the time of trial,
also gave convincing corroborative evidence about her daughter’s physical and
emotional health and function before and after the Accident.  She was a credible
witness, without exception.

[87]        
Mother and daughter have lived together in their 900-square foot
apartment in downtown Vancouver since approximately 2004.  F.R. spoke of the gradual
and profound deterioration that she witnessed first-hand in her daughter after the
Accident.  She testified about her daughter’s daily need for assistance with
the most basic everyday tasks and of her inability to continue to carry her
equal share of domestic tasks, such as shopping, cleaning and cooking that had
been the norm prior to the Accident.  F.R. recalled that at some point in 2008,
her daughter declined further and was not able to accomplish anything on her
own.  In consequence, F.R. assumed all of the household chores and shopping and
had to help her daughter shower, dress and even comb her hair.

[88]        
F.R. also said that her daughter’s concentration has become impaired and
that she is so forgetful that she has to be reminded constantly of what it is
she needs to do.  She confirmed that when her daughter feels well, she uses the
gym and the pool in their apartment building.  She recounted an especially
telling incident that occurred in an airport when she and her daughter were
traveling to a family function and a porter brought a wheelchair to where they
were standing.  It was apparent to F.R. that the porter believed the wheelchair
was for her use when it was actually for her daughter.

[89]        
F.R. testified that after the Accident, her daughter rarely left the
apartment, often preferring to stay in her room, sometimes on the computer,
rather than socialize.  She also testified about the “English corner” gatherings
they held at their apartment where her daughter voluntarily taught English to
between two and seven people once a week.  After the Accident, F.R. eventually
had to assume the full burden of setting up for the classes and preparing
refreshments for the pupils.  Ms. R. had also been tutoring students in
English on Friday nights and stopped doing that because of her symptoms.

[90]        
F.R. described her daughter as active, energized and happy, with a lot
of vigor before the Accident.  In the aftermath, she became fatigued and her vivaciousness
drained away, little by little, “like a candle burning down and losing its life”.

·       Ms. R.’s
Medical Experts

Dr. Romayne Gallagher

[91]        
Earlier I summarized Dr. Gallagher’s impressive credentials
and qualifications.  Suffice it to say, she has specialized medical knowledge
and vast clinical experience in the field of chronic pain and its treatment.

[92]        
Dr. Gallagher saw Ms. R. on three occasions between May 14,
2009 and January 12, 2012.  On examination during her last appointment, she
found that Ms. R. had pain in almost all of the classic fibromyalgia
trigger-point locations throughout her body.  That said, both
Drs. Gallagher and Nguyen explained that according to the American College
of Rheumatology, it is acceptable to make a valid diagnosis of fibromyalgia simply
by relying on the patient’s history and evaluation of the symptoms and without
conducting a physical examination or testing for the presence of trigger points.

[93]        
In Dr. Gallagher’s opinion, the trauma of the Accident either
caused Ms. R.’s fibromyalgia or contributed to its onset in a major way. 
In her report dated January 12, 2012, she provided an overview of what is
known about fibromyalgia:

Fibromyalgia is one of what are now being called Functional
Somatic Syndromes (FSS) are defined as a group of related syndromes,
characterized more by symptoms, suffering and disability, than by structural or
functional abnormality. While the American College of Rheumatology Fibromyalgia
criteria are: widespread pain above and below the waist and 11 out of 18
prescribed points on the body being tender, with a moderate light to moderate
force, other clinicians have added the clinically relevant prominent symptoms,
such as fatigue, sleep disturbance and cognitive impairment. Ms. R. meets
all these criteria.

The pathogenesis of fibromyalgia is thought to be central
sensitization. Central sensitization that involves hyperexcitement of the
central neurons though various synaptic and neurotransmitter/neurochemical
activities, has been demonstrated in several FSS. People experience
hyperalgesia (increased pain to normally painful stimuli) or allodynia (pain
with normally non-painful stimuli).

Genetic studies have revealed a
genetic predisposition to fibromyalgia.

[94]        
Dr. Gallagher agreed that there are multiple potential causes of
fibromyalgia.  As to its etiology, she explained:

There are various triggers involved in the development of
fibromyalgia in susceptible individuals. Bennett and colleagues provided an
Internet survey of 2,596 people with [fibromyalgia]. Approximately 21% of
responders indicated that they could not identify any triggering events of
their illness. Over 73% of those who indicated some triggering event made
attributions to emotional trauma or chronic stress. The next most common
attribution was acute illness (26.7%), followed by physical stressors (surgery,
motor vehicle collisions, and other injuries). Various infectious agents have
been linked to the development of [fibromyalgia], as well as to that of the
closely related chronic fatigue syndrome.

Increased rates of [fibromyalgia]
have been demonstrated among patients undergoing cervical trauma during motor
vehicle accidents. Wynne-Jones and colleagues found a 7.8% frequency of
widespread pain within 12 months among a cohort of patients who underwent a
motor vehicle collision. The prevalence of fibromyalgia in the general
population is around 2%.

[95]        
Dr. Gallagher was cross-examined at length relative to the defence
theory that Ms. R. experienced pre-existing symptoms and/or the
symptomatic origins of fibromyalgia or a chronic pain condition before the
Accident.

[96]        
Dr. Gallagher had not reviewed Ms. R.’s medical records before
writing her opinion and Ms. R. had not told her about any of her
pre-Accident medical complaints or treatments.  Although defence counsel raised
the matter as a point of deficiency on Dr. Gallagher’s part, he chose not
to cross-examine her about any of the entries in Dr. Mendelson’s chart concerning
Ms. R.’s pre-Accident medical symptoms.  In re-direct examination, Dr. Gallagher
was taken to specific medical records documenting some of Ms. R.’s pre-Accident
complaints of neck, shoulder and back pain.  She persuasively explained that Ms. R.’s
right shoulder pain in June 2007 did not mark the start of the development
of fibromyalgia.  Dr. Gallagher agreed that fibromyalgia has some symptomatic
overlap with depression.  When taken to the May 7, 2007 chart entry that
noted “depression and insomnia” and referencing the report of childhood sexual
abuse, she testified that in the absence of a concurrent report of diffuse
physical pain, those symptoms did not suggest the beginnings of the onset of
fibromyalgia at that time.

[97]        
In response to general questions regarding the relevance of Ms. R.’s
pre-Accident physiotherapy and chiropractic treatments, Dr. Gallagher
testified that whether Ms. R. had a treatment “here or there” for some
individual injury did not bear any relationship to the syndrome she now has.  In
answer to this line of questioning at large, Dr. Gallagher clarified that
fibromyalgia is defined by a broad constellation of characteristic symptoms. 
They typically involve widespread musculoskeletal pain, insomnia,
non-restorative sleep and poor memory and concentration and impaired cognitive
thinking, and may include psychiatric symptoms such as depression and anxiety. 
She explained that when assessing for fibromyalgia, she does not ask patients
if they have symptoms of depression or anxiety because so much of the
population does.  As a clinician, what she is looking for in relation to
fibromyalgia is a persistent history of the co-existence of those and other cognitive
and physical symptoms.

[98]        
Dr. Gallagher persuasively maintained that her awareness of the
various pre-Accident chart entries recording Ms. R.’s complaints of pain,
depression and anxiety in no way altered her opinion.

[99]        
Dr. Gallagher does not offer a rosy prognosis for Ms. R.’s
future.  She predicts a greater than 50% probability that fibromyalgia will be
a lifelong chronic affliction affecting Ms. R. to some degree for many
years to come.  Despite the improvement of her depression and other positive
strides made by Ms. R. following her participation in the Pain Program, Dr. Gallagher
remarked that her generalized pain, headaches, memory lapse, poor
concentration, depleted energy levels and interrupted sleep have by no means
resolved.  During their final session, Ms. R. was still reporting ongoing
symptoms and signs that Dr. Gallagher believed were consistent with fibromyalgia. 
She testified that Ms. R.’s symptoms are prone to episodic aggravation and
flares that will likely resolve back to a baseline degree of disability.  In
her view, during those periods Ms. R. may need more frequent treatment and
occasional supportive coaching sessions to successfully continue her self-management
therapies.

[100]     Dr. Gallagher’s
thinking is that the major limitations to Ms. R.’s future functioning will
be her lingering fatigue, non-restorative sleep, cognitive impairment and
widespread pain, all of which are features of fibromyalgia.  It is her belief
that Ms. R. has arrived at a stage in her illness which necessitates a
number of self-management strategies supplemented with reasonable physical
therapies.  She recommended additional online resources to help Ms. R.
manage her anxiety and depressive symptoms.  As a general proposition, Dr. Gallagher
also endorsed participation in exercise, but was careful to note that the
studies indicate that exercise may not necessarily improve an individual’s pain
or concentration.

[101]     Dr. Gallagher
testified that Lyrica and several antidepressants have been shown to reduce pain
and improve function in individuals suffering from fibromyalgia.  She expounded,
however, that current medical studies and literature were not entirely
encouraging with respect to the pharmacological management of fibromyalgia
symptoms because many patients derive no benefit from the medication.  She
testified that the trials of Lyrica and Cymbalta she had given to Ms. R.
were more than sufficient to determine whether either drug would be tolerated
or beneficial.  Dr. Nguyen confirmed that within just days it can be known
whether or not a medication is going to be adequately effective.

[102]      Dr. Gallagher
pointed out that Ms. R. almost always had significant side-effects to
medication which posed a barrier to symptom management through pharmacological
means and, for that reason, was enrolled in the Pain Program that concentrated
on teaching non-pharmacological ways to control and cope with the symptoms.

[103]     Dr. Gallagher
believed that before the Accident, Ms. R. had been fully functioning and
working at the Bahá’í Training Institute as a provincial representative.  I find
that nothing turns on the fact that she may have been unaware that Ms. R.
was laid off from her employment shortly before the Accident and was therefore
not working at that time.  This is because the preponderance of the evidence
indicates that Ms. R. was a high functioning person capable of full-time
employment at the time of the Accident.

[104]      Dr. Gallagher
understood in a general way that after the Accident Ms. R. had made some
efforts to find flexible part-time employment.  She did not know nor
specifically ask Ms. R. whether she had been applying for full-time work
in 2009 or 2010.  When she wrote her report in 2012, Dr. Gallagher’s view
was that Ms. R. was not capable of full-time work, but could probably perform
part-time work on an intermittent basis if she was given an accommodation to
take breaks when needed.  Upon learning that Ms. R. had enlisted the
assistance of the WIDHH in a job search and periodically sent out résumés for
full-time positions within that timeframe, she did not retreat from or modify
her opinion about Ms. R.’s impaired capacity to work on a full-time basis.
Dr. Gallagher agreed that she would encourage a patient to try to find
work and testified that, in her experience, most of them wish to at least try
to do so.

[105]     It was
suggested to Dr. Gallagher in cross-examination that until Ms. R.
actually tried a full-time position, it simply could not be known whether or
not she was incapable of handling it or not.  Dr. Gallagher would not
agree with that supposition.  Rather, she affirmed her opinion to the effect
that Ms. R. was currently disabled from full-time work, explaining that it
was a product of her clinical judgment and experience based on Ms. R.’s
presenting symptoms.  She was also clear that she would defer to Dr. Nguyen’s
experience as a physiatrist with respect to the assessment of Ms. R.’s
work capacity.

[106]     In closing
submissions, defence counsel portrayed Dr. Gallagher as not always
responsive and “on the offensive” in cross-examination.  I do not share
that view.  To my mind, she was an extremely informative and balanced expert
witness.  I have placed considerable weight on her opinion evidence.

Dr. Viem Nguyen

[107]     Dr. Nguyen
is an expert in the area of physical medicine and rehabilitation.  As
mentioned, Ms. R. was first referred to him on April 2, 2009 and had
three appointments with him in follow-up between August 12, 2009 and February 2012.

[108]     Dr. Nguyen
agreed with Dr. Gallagher’s diagnosis of fibromyalgia.  In terms of
management or prognosis, it made no difference to him whether the syndrome was
classified as a chronic pain condition or fibromyalgia.

[109]     In his
expert report dated January 15, 2012, Dr. Nguyen addressed causation as
follows:

Ms. [ R] had not previously suffered any soft
tissue injuries to her neck or back before the [Accident].  She also did not
have any prior history of chronic neck and back pain relating to myofascial
pain before her [Accident].  She had been employed full-time and functioning
independently at home and at work prior to her [Accident].

As such, Ms. [R’s] soft
tissue injuries to her neck and back, resulting in chronic myofascial neck and
back pain, and her subsequent related disability and inability to perform her
usual work duties, likely are directly related to and caused by the [Accident].

[110]     Dr. Nguyen’s
premise that Ms. R. had not been suffering from any lingering chronic pain
symptoms before the Accident was central to his opinion on causation.  He was
cross-examined at length about the validity of that underlying assumption.

[111]     Ms. R.
did not tell Dr. Nguyen (or Dr. Gallagher) about any of her
pre-Accident complaints of pain, depression or anxiety.  The rationale she gave
at trial for not informing them was that those injuries and complaints were not
chronic in nature but, rather, had resulted from discrete injuries or incidents
and had cleared up with treatment.

[112]     Dr. Nguyen
did not have the benefit of reviewing the Mendelson Clinic chart at the time he
prepared his expert report and only received it the day before he testified.  He
would not agree with the unqualified proposition that his opinion on causation
could be faulty in light of the fact that he had not performed a complete advance
review of all of Ms. R.’s pre-Accident medical records.  Dr. Nguyen explained
that whether that omission would impact on his ultimate opinion would depend on
the contents of those records.  That was a reasonable, if not an obvious,
response.

[113]     Defence
counsel went on to direct Dr. Nguyen’s attention to specific entries to Ms. R.’s
medical chart.  When taken to the record of her right shoulder complaint in June 2007,
Dr. Nguyen noted that the injury appeared to implicate the front of her
right shoulder.  He testified that there are different types of shoulder pain
that involve different aspects of the shoulder girdle.  In April 2009, he
examined all parts of Ms. R.’s shoulder and had not detected any
difficulties relating to the front aspect of it which encompassed her rotator
cuff tendons.  He had, therefore, focused more on the back/posterior part of
her right shoulder which she described as being symptomatic.

[114]     In
response to questioning that he would have wanted to know about any complaints
of right shoulder pain a month before the Accident, Dr. Nguyen agreed that
more information would generally be better, particularly if the complaints
pertained to the back part of Ms. R.’s shoulder (which they did not),
rather than the front.  In re-direct examination, he testified that Ms. R.’s
evidence to the effect that her shoulder injury in April 2007 had resulted
from the lifting of heavy luggage and resolved after two therapy treatments
suggested that she had recovered from that incident prior to the Accident.

[115]     Dr. Nguyen
explained that not all soft tissue injuries and symptoms evolve into chronic
pain, which he defined as being fairly constant pain (distinct from
intermittent pain) for a duration beyond three months.  In response to further
questioning, he added that while it was true that chronic pain symptoms
typically wax and wane, they nevertheless continue to be present and
experienced on an ongoing basis, albeit at fluctuating levels of intensity.

[116]     In
cross-examination, Dr. Nguyen was asked to hypothesize that three months
before a motor vehicle accident, a patient reported back, neck and shoulder
pain, insomnia, depression, avoiding socialization and reduced cognitive
ability and motivation.  Building on that, he was asked whether such a grouping
of symptoms within that three-month window would strongly suggest the emergence
or kernels of a chronic pain condition.  In Dr. Nguyen’s view, the
conclusion urged by defence counsel did not necessarily follow from the
hypothetical posed.  He emphasized that the nature and underlying cause of the
symptoms was key and had to be identified and considered.  Dr. Nguyen
would likewise not agree that the hypothetical symptomology indicated that a
chronic pain situation was in development.  He clarified that it would depend
on whether that cluster of symptoms had persisted throughout the three-month
timeline and were active and bothering the patient at the time of the
collision, as opposed to manifesting on a more episodic and short-lived basis.

[117]     While Dr. Nguyen
agreed that he would be interested in knowing whether Ms. R. had
experienced this myriad of complaints in the three months preceding the Accident,
he maintained that in assessing causation, it would be essential to also know
the cause of those complaints.  For the purposes of his opinion, he assumed
that Ms. R. had not suffered from any ongoing chronic symptomology in those
areas prior to the Accident.  The preponderance of the evidence affirms the
validity of his base assumption.

[118]     For the
purposes of his opinion, Dr. Nguyen had mistakenly assumed that Ms. R.
had been gainfully employed on a full-time basis when the Accident happened. 
The source of his erroneous information was not explored.  The evidence certainly
does not show that Ms. R. deliberately misrepresented that fact to him. 
More to the point, however, Dr. Nguyen did not indicate that the
clarification of this point in any way altered his opinion.  On the totality of
the evidence, I find that nothing of significance turns on Dr. Nguyen’s
misunderstanding.  This is because the evidence establishes to my satisfaction
that Ms. R. was fully capable of working full-time prior to the Accident
and was not doing so because she had been recently laid off and was contemplating
her future options, while performing her volunteer service. I also find
that the injuries Ms. R. sustained as a result of the Accident would have
prevented her from resuming a full-time position after the Accident had she one
to return to.

[119]     Dr. Nguyen
was questioned about Ms. R.’s use of prescription medication and the
efficacy of the pharmacological treatment of fibromyalgia.  He had not prescribed
medication for Ms. R. because he relied on her other treating physicians,
such as Dr. Gallagher and Dr. Mendelson, to initiate those treatment
options.  He was aware that Ms. R. had problems tolerating prescribed
medications although he had no detailed information as to how long she had
tried Lyrica or any antidepressant.  As had Dr. Gallagher, he noted that
the segment of the Pain Program that Ms. R. attended was aimed at teaching
patients non-pharmacological means to manage their pain symptoms.

[120]     Dr. Nguyen
agreed with the general proposition that side-effects can potentially lessen
over time with sustained use of the medication, but added that it would depend
on the side-effect.  He cautioned that the danger of a patient discontinuing a
medication such as Lyrica too soon had to be weighed against the danger of the
constancy of side-effects, particularly where they were severe.  The essence of
his evidence on this point was that the efficacy of prescribed medication had
to be assessed on a case-by-case basis.

[121]     Dr. Nguyen
agreed that cognitive behavioural therapy has been shown to be moderately
effective in treating chronic pain patients and that greater benefit can be
achieved where that therapy is coupled with exercise.  As to whether the most
effective treatment overall would be to add pharmacological intervention to the
foregoing, he stressed that it would all depend on the individual patient.  It
is noteworthy that neither he nor Dr. Gallagher expressed a view that a
pharmacological approach to chronic pain conditions invariably represented a
superior therapeutic intervention or was a successful therapy across the board.

[122]     Dr. Nguyen
shares Dr. Gallagher’s pessimistic prognosis.  In his opinion, Ms. R.
will likely continue to have widespread pain involving her neck, back and other
areas on an ongoing and permanent basis.  He also anticipates that she will
experience episodic flares that will worsen her baseline pain.  Dr. Nguyen’s
hope is that with the use of the strategies Ms. R. learned at the Pain
Program and analgesic-type medications, she will be able to reduce the intensity
and duration of her symptoms.

[123]     Dr. Nguyen
similarly offered a poor prognosis for Ms. R. to return to and be able to
tolerate full-time work in the future in light of the duration of her
disability connected to her chronic complaints.  It is his belief that the
likelihood of her ability to do so could be increased with vocational counselling
to help her identify appropriate future employment options.  He also holds the
view, shared by Dr. Gallagher, that the likelihood of her capacity to work
full-time would be enhanced by establishing a work schedule that would allow
her to gradually increase the number of hours worked and to take regularly
scheduled breaks throughout the course of her day to enable her to move around
and stretch and thereby promote tolerance to a full work day.  Dr. Nguyen
recommended that Ms. R. continue to perform regular daily exercise and
combine some form of low impact cardiovascular exercise with water-based
exercise. He endorsed her ongoing access to facilities where her exercise
program can continue to be done, such as a local gym or community centre.  Dr. Nguyen
suggested she receive instruction from a personal trainer or a kinesiologist
when initiating new parts to her exercise program, or when she anticipates an
increase in the duration or intensity of her exercise.  Additionally, he
suggested a re-assessment of her exercise program and performance at regular
intervals of every six to eight weeks by a personal trainer or kinesiologist,
so that her program can be modified accordingly.  He also suggested that Ms. R.
undergo a vocational assessment which, according to the evidence, would cost
between $4,700 and $5,400, plus applicable taxes.

Dr. Mitchell Mendelson

[124]     Dr. Mendelson
authored his expert opinion on July 3, 2009, which was before Ms. R.
completed the Pain Program.  His report was rather dated by the time of trial.

[125]     Dr. Mendelson
wrote:

Ms. [R.] suffered a musculoligamentous
injury involving her neck, shoulder and low back.  She has underlying
degenerative changes of her neck and back but many of her complaints could
be attributable to the [Accident].  She has been seen by a Physiatrist, a Rehabilitation
specialist and at the pain clinic.  She is slowly improving and finds that she
has less pain and increase mobility.  Considering the length of time this has
gone on she may continue to have long-term pain but it is hoped that she should
continue to improve [italics added]

[126]     At trial, Dr. Mendelson
clarified that his use of the words “could be” italicized in the above passage
was not the best choice.  He considered it more accurate to say that her
degenerative findings were very non-specific and her complaints “could very
well be” related to the Accident.  He also elaborated about the symptoms,
treatment and prognosis of Ms. R. over the entire period that he had
treated her before he closed his clinic in 2011.

[127]     In
cross-examination, Dr. Mendelson agreed that the Accident could have
exacerbated the right shoulder symptoms that Ms. R. had experienced in June just
before the Accident.  As has been noted, however, Dr. Nguyen placed
considerable importance on the fact that before the Accident, Ms. R.’s
shoulder symptoms were felt in the front and after the Accident, they were
experienced in the back aspect.  The existence and importance of that distinction
was corroborated by the testimony of the physiotherapist, Ms. Yackness.  I prefer
the evidence of Dr. Nguyen on the matter which, in my view, effectively
neutralizes Dr. Mendelson’s perhaps less considered view.

[128]     In closing
argument, defence counsel noted that Dr. Mendelson had not diagnosed Ms. R.
with fibromyalgia.  It was not clear to me whether this observation was being
offered as a means of calling into question the diagnosis of fibromyalgia made
by Drs. Gallagher and Nguyen.  Certainly, Dr. Mendelson was not asked
directly whether he disagreed with their diagnosis.  In any event, I have
accepted their diagnosis as accurate.

·       The
Defendants’ Medical Expert

 Dr. Donald G. Werry

[129]     Dr. Werry
is a highly qualified and experienced orthopedic surgeon.  His expertise is in
the area of knee and hip replacement, which has been his exclusive practice
domain for approximately the past two years.

[130]     Dr. Werry
conducted an independent medical examination of Ms. R. on July 7,
2011.  His essential opinions in relation to the pivotal issue of causation
are:

(1)   Ms. R.
probably suffered a mild soft tissue injury to her neck and back as a result of
the Accident, which probably healed within several months;

(2)   Ms. R.
had documented depression, anxiety, insomnia, lack of motivation, decreased
energy and back pain before the Accident.  It is more likely than not that her
symptoms would have been diagnosed as fibromyalgia at some point, even had the Accident
not occurred; and

(3)   it
is possible that the Accident served as an aggravating factor for pre-existing
symptoms, although the likely severity of the Accident and associated soft
tissue injuries were mild.

[131]     Dr. Werry
was subjected to a pressing cross-examination that proved fruitful for Ms. R.
In the process, he qualified, corrected and, in some instances even retreated
from, important assertions contained in his expert report.  I have recited
a non-exhaustive sampling below.  The cumulative effect of his concessions
undermined his opinions concerning the state of Ms. R.’s health prior to
the Accident, her prognosis and the issue of causation more generally.

[132]     In the
body of his report, Dr. Werry selected for comment certain pre-Accident notations
in Ms. R.’s medical chart.  He considered the entry of October 4,
2006 that recorded complaints of headache and shoulder pain to be significant. 
However, he had erroneously described the duration of those symptoms as three
months rather than three weeks.  When his attention was drawn to that mistake, Dr. Werry
agreed that the surrounding circumstances of the injury, including its
duration, were important.  In redirect examination, he stated that his error
did not impact his opinion.  Considered against the totality of his evidence,
it is difficult to credit the legitimacy of his stance.

[133]     Dr. Werry
wrote that Ms. R.’s clinical chart for April 18, 2007 documented “persistent
left shoulder pain”.  He agreed that it was possible to interpret his summation
of the record as indicating that Ms. R.’s shoulder pain had been present
for a long time; however, it had not been.  Dr. Werry had reproduced an
abbreviated version of what actually appeared in Ms. R.’s chart.  The
complete notation read “persistent left shoulder pain x 4 days”.  Dr. Werry
agreed to the common-sense proposition that knowing that the so-called
persistent pain was reported to have lasted only four days was important,
especially where, as here, it was being offered to suggest that it may be
indicative of a pre-existing health problem.  Dr. Werry did not know the surrounding
context giving rise to this complaint.  He also chose not to include or address
in his report the fact that the assessment of that shoulder pain as recorded by
the examining physician was that it may have been brought about from Ms. R.
lifting heavy luggage.  He agreed that notation by the examining physician provided
additional context to that pain complaint and that her symptoms could have
resulted from such activity.  With respect to the determination of pre-existing
problems, Dr. Werry additionally agreed that it would also be important to
know that Ms. R.’s symptoms had resolved after just two physiotherapy
visits.

[134]     In terms
of his comment that Ms. R. had documented back pain prior to the Accident,
Dr. Werry acknowledged that her chart recorded only one such complaint. 
He agreed that it could be fairly described as a “one-off kind of thing”, and
was not suggestive of a pre-existing chronic back problem.

[135]     In his
report, Dr. Werry mentioned that before the Accident, Ms. R. had
reported emotional symptoms, such as depression, insomnia, anxiety, low-energy
and decreased motivation to her physician.  He agreed that there were only two
such references in the clinical records:  one on December 20, 2004 and the
other roughly two and a half years later on May 7, 2007, and that the
referral to Dr. Sidky coincided with the latter.  Dr. Werry did not
consider these emotional symptoms to be chronic and acknowledged that being
informed of the circumstances within which those complaints were made would be
very important with respect to his ultimate opinion.  He said he did not know
the context of those visits, and yet, the face of those entries explicitly
provide some degree of context in that they refer to Ms. R.’s childhood
sexual abuse.  With respect to fibromyalgia, Dr. Werry agreed that
presenting emotional and cognitive difficulties must be taken into account
along with the physical symptoms.  He agreed that Ms. R.’s emotional and cognitive
complaints in May 2007 were not sufficient to establish fibromyalgia in
the absence of the requisite accompanying physical symptoms.  The co-existence
of those two broad categories of symptoms as a prerequisite to fibromyalgia had
been emphasized by Dr. Gallagher.

[136]     Dr. Werry
had no cogent information about the force of the impact.  His conclusion that
the soft tissue injuries sustained by Ms. R. to her neck and back were mild
was based on the fact that she was able to drive away from the scene and carry
out her planned activities, and did not experience symptoms for about 24 hours. 
He effectively unwound the underpinnings of his own logic in cross-examination by
conceding that it was in fact common for soft tissue injuries induced by a
motor vehicle collision to emerge within that initial 24 hour period.

[137]     Acknowledging
that his area of expertise is not in the field of fibromyalgia, Dr. Werry came
to concede that he could not legitimately opine that Ms. R.’s symptoms
would have been diagnosed as fibromyalgia at some point, even had the Accident
not occurred, and retracted his written opinion to the contrary.

[138]     In his
analysis, Dr. Werry drew a conceptual line between Ms. R.’s
musculoskeletal injuries on the one hand, and symptoms that aligned with a
diagnosis of fibromyalgia or a chronic pain condition on the other.  He then
proceeded to opine on elements of causation and Ms. R.’s prognosis from a
strictly musculoskeletal point of view, meaning without reference to her non-physiological
symptoms.  He followed that approach even though he acknowledged that
fibromyalgia comprises a broad constellation of symptoms with two main aspects:
widespread physical pain and emotional and cognitive deficits such as anxiety,
depression and impaired memory and concentration.  In adopting that curiously
divided approach, Dr. Werry’s opinions did not take into account significant
elements of the totality of Ms. R.’s symptomology.

[139]     To
illustrate, he explained that his statement that Ms. R.’s generalized body
pain could not be explained on an organic basis meant that it could not be
explained from a purely musculoskeletal perspective.  At the same time, he
acknowledged that fibromyalgia is not a musculoskeletal condition and that Ms. R.’s
diffuse body pain could be explained on the basis of fibromyalgia or chronic
pain.  He similarly clarified that his opinion to the effect that Ms. R.’s
soft tissue injuries attributable to the Accident probably healed within
several months was narrowly confined to the predictable course of healing from
a biologic point of view.  He claimed not to intend to convey the notion that her
accompanying symptoms such as pain would have necessarily healed or resolved
within that timeline.

[140]     In his
report, Dr. Werry wrote that Ms. R.’s physical examination was
normal.  In cross-examination, after conceding that many elements of his
physical examination revealed findings that could not be described as “normal”,
Dr. Werry explained that his characterization of her as normal was a
limited assessment that he made strictly as an orthopaedic surgeon.  He also
referred to Ms. R.’s sensitivity to his general palpating on examination. 
In cross-examination, he agreed that this finding was not unusual in a person
suffering from fibromyalgia, explaining that due to a dysfunction in their pain
processing abilities, such persons experience pain differently than does a
so-called normal person.

[141]     Dr. Werry
wrote that Ms. R.’s physical activity had been “extraordinarily” limited
since the Accident.  He also noted that she made candid remarks to him about her
lack of motivation and occasional “laziness” with respect to exercise.  Ms. R.
testified that she does encounter problems with motivation because of the pain
she feels and, because she places high expectations upon herself, she regards
herself as lazy if she is not able to do her regular exercise routine at the
gym and pool in her apartment.  Given the condition she suffers from, however,
she does not consider herself, and did not intend to portray herself to Dr. Werry,
as indolent in the sense of choosing not to be active when she was otherwise
capable of activity.  Ms. R. is clearly not an idle woman, and I accept
her explanation.  Moreover, and in any event, Dr. Werry agreed that chronic
pain and fatigue feature prominently in fibromyalgia and those symptoms impact
an individual’s ability to carry out sustained exercise and activity, and
therefore, persons afflicted with fibromyalgia/chronic pain find it difficult
to always be active.

[142]     Dr. Werry
agreed that fibromyalgia is a chronic pain syndrome for which there is no cure
and which can only be managed through various therapies and treatment.  Yet,
his opinions about Ms. R.’s prognosis and work capacity were made from an
exclusively musculoskeletal perspective and were blind to her other symptoms
and the features of fibromyalgia such as abnormal pain processing.  The
artificiality of his approach was starkly captured in his opinion that while he
believed Ms. R. was capable of work such as teaching from a
musculoskeletal standpoint, she may not be capable from a “fibromyalgia point
of view”.

[143]     I found
Dr. Werry’s assessment to be unhelpfully circumscribed and of negligible
value by addressing only a partial picture of the complex cluster of Ms. R.’s
symptoms.  Amplifying my concern about the quality of his opinion is that he candidly
acknowledged that he is not an expert in the field of fibromyalgia and would “definitely”
defer to the opinion of a rheumatologist or physiatrist such as Dr. Nguyen
with respect to a diagnosis of fibromyalgia.  Indeed, to the extent that palpation
of the traditional trigger points remains a valid diagnostic measure, Dr. Werry
was not even able to accurately identify all of the relevant body points.

[144]     This is a
case involving fibromyalgia, a complex pain syndrome that encompasses both
physical and psychological components.  Dr. Werry’s expertise is in the
field of orthopedic surgery.  While that has provided him with a threshold
expertise in the realm of soft tissue injury, his expertise in orthopedics has
him dealing with patients who are very different from Ms. R.

[145]     Dr. Werry’s
admitted lack of expertise, his unsatisfactory interpretation of many of Ms. R.’s
pre-Accident clinical records and his detachment from certain of his key opinions,
either directly or by way of significant qualification, in the course of
cross-examination are such that I place no weight on his opinions on every
point of departure from those held by Drs. Gallagher and Nguyen.  The
one exception I would make is that I do accept his unchallenged
recommendation that Ms. R. would benefit from the ongoing supervision of a
kinesiologist or exercise-oriented physiotherapist, with the objective of her
successfully progressing with a reconditioning program.

Causation

·       Overview

[146]     For Ms. R.
to recover damages, there must be a causal link between the Accident and her
injuries.  The law does not draw a distinction between injuries that are
psychological in nature and those that are physical.  The primary test used in
determining causation is known as the “but for” test.  Ms. R. bears
the burden of showing, on the balance of probabilities, that “but for” the
defendants’ negligent act or omission, her injury would not have occurred.  Applying
it to the case at hand requires that Ms. R. establish that it is more
likely than not that without the Accident her injuries would not have occurred. 
A plaintiff does not need to establish that the defendant’s wrongful conduct is
the sole cause of the injury.  So long as the plaintiff proves a substantial
connection between the injuries and the defendant’s negligence beyond the “de minimus”
range, the defendants will be fully liable for the harm suffered, even if other
causal factors, which the defendant is not responsible for, were at play in
producing the harm: Athey v. Leonati, [1996] 3 S.C.R. 458; Blackwater
v. Plint, 2005 SCC 37; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements
v. Clements, 2012 SCC 32.

[147]     The
causation test does not demand scientific precision and is not to be applied
too rigidly: Snell v. Farrell, [1990] 2 S.C.R. 311.  Causation is a
practical question of fact which can best be answered by ordinary common sense. 
As Dardi J. reminded in Midgley v. Nguyen, 2013 BCSC 693, at para. 172,
the legal concept of causation is different from the more rigorous standard
that approaches scientific certainty in the medical field.

[148]     The Court
will exercise caution in inferring legal causation by exclusive or substantial
reference to a temporal sequence of events, which may take the form of comparing
the plaintiff’s condition in the pre and post-Accident scenarios: Madill v.
Sithivong, 2012 BCCA 62 at para. 20; White v. Stonestreet, 2006
BCSC 801 at paras. 74-75.  As I noted in Erickson v. Sibble,
2012 BCSC 1880, however, it does not follow that the judicial insistence of
caution signifies judicial thinking that temporal reasoning is an illegitimate
analysis or a branch of logic to be seldom invoked: see also, Midgley.

·       Analysis
of Causation

[149]     The
defendants submit that as a result of the Accident, Ms. R. merely sustained
soft tissue injuries and a likely aggravation of pre-existing neck, shoulder
and back symptoms.  They contend that Ms. R.’s injuries followed an
expected course of improvement in the months following the Accident and,
thereafter, she experienced a “spontaneous and acute” episode of pain and
alleged incapacity.  The tenor of this branch of the defence argument is that Ms. R.’s
decline which started in 2008 and, inferentially, the onset of her
fibromyalgia, was unrelated to the injuries stemming from the Accident.

[150]     In closing
argument, defendants’ counsel clarified his position relative to the issues of Ms. R.’s
pre-existing health.  He stated that although she had no active or ongoing
condition per se before the Accident, the evidence supported a
correlation between when she was employed and her complaints of pain, indicating
a susceptibility on her part of not being resistant to stress and activities of
work.  In the course of argument, defence counsel appeared to say that this
submission related more to the assessment of damages than to the issue of
causation.

[151]     A good
deal of the defence position is fastened upon elements of Dr. Werry’s
expert opinion that I have rejected.  The whole of the evidence that
I accept falls significantly short of establishing that before the
Accident Ms. R. experienced chronic symptoms in her shoulder, back, neck
or other parts of her body, or suffered from or was in the early stages of
fibromyalgia or a chronic pain condition.

[152]     I am
satisfied that the physical aches and pains that Ms. R. occasionally
reported and in respect of which she sought treatment prior to the Accident predominantly
resulted from identifiable trauma or incidents, such as a fall, overuse or improper
use of weights and lifting heavy items, and in any case resolved with
appropriate treatment within a relatively short time.  It is likewise plain
that Ms. R. did not experience ongoing fatigue, decreased energy,
cognitive impairment or emotional symptoms prior to the Accident.

[153]     I find
that, in consequence of the Accident, Ms. R. at first experienced headaches
and soft tissue injuries to her neck, shoulder and back that waxed and waned
and even improved for a short while, but gradually evolved into the
constellation of symptoms known as fibromyalgia.  Implicit in my conclusion is
the rejection of the defence theory that her severe physical, cognitive and
emotional deterioration in June 2008 was wholly unrelated to the Accident
or her initial soft tissue injuries induced by it.  Relying on the opinions of
Drs. Gallagher and Nguyen, as well as Ms. R.’s self-account and the
preponderance of the lay evidence material to causation, I conclude that Ms. R.
would not have developed fibromyalgia, nor would have experienced the
constellation of symptoms she has testified about at all, or with the same frequency,
duration and intensity, but for the negligence of the defendants.

[154]     Neither
party made submissions about whether the injuries sustained by Ms. R. were
divisible or indivisible as between the two collisions.  The determination is a
question of fact and is relevant to the issue of causation, as well as damages.

[155]     Divisible
injuries are those capable of being separated and having their damages assessed
independently.  Indivisible injuries are those that cannot be separated out and
have liability attributed to the constituent causes and their damages assessed
independently: Athey; Bradley v. Groves, 2010 BCCA 361 at para. 20;
Blackwater; Moore v. Kyba, 2012 BCCA 361.

[156]     Indivisible
injuries, whether they are occasioned by a combination of non-tortious and tortious
causes or solely by tortious ones, result in joint liability to the plaintiff. 
Absent contributory negligence, the plaintiff can claim the entire amount from
any of them.  As Bradley points out at para. 34, the tortfeasors’
rights to seek contribution and indemnity from each other and the ultimate apportionment
as between themselves pursuant to the Negligence Act, R.S.B.C. 1996,
c. 333, is a matter of indifference to the plaintiff.

[157]     Liability
for the Accident was admitted in this case and there was no evidence elicited at
trial to remotely suggest that Ms. R. was contributorily negligent to the
second collision.

[158]     The
injuries Ms. R. sustained in the subsequent accident aggravated some of
the injuries that had been caused by the Accident.  Her injuries are plainly
indivisible and Ms. R. is entitled to recover all of her damages from the
within defendants.

Damages

·       Overview

[159]     The essential
purpose of damages is to restore, as best as is possible with a monetary award,
an injured plaintiff to the same position he or she would have been in had the
negligence not occurred.

[160]     People
have different physical and psychological susceptibility to injuries.  A
fundamental principle in the assessment of damages is that the defendant must
take the plaintiff as she is.  A plaintiff whose unique psychological makeup or
pre-existing physical condition makes her more vulnerable to sustaining injury
is to be compensated for the entire extent of her injury, both physical and/or
psychological, caused by the defendant’s negligence.  This is so even where due
to some unique feature of the plaintiff, the foreseeable injury was greater or
of a more dramatic or severe or different type than one would expect an average
person to sustain.  It is no answer for a defendant to say that the plaintiff
would have suffered less injury or a different kind of injury or no injury at
all if he or she had been less susceptible or vulnerable.  It is the foreseeable
impact of the Accident on the actual plaintiff and not on a fictional one that
is relevant for compensatory purposes: Athey.

[161]     Equally as
fundamental is that a defendant is not expected to put the plaintiff in a
better position than the plaintiff had been in the moment before the Accident
happened.  It is the difference between the plaintiff’s original position with
any attendant risks and shortcomings (e.g. a pre-existing condition) just before
the Accident, and the injured position after and as a result of the Accident,
that comprises the plaintiff’s loss: Athey at paras. 34-35.

[162]     A
pre-existing condition, latent or active, is part of the plaintiff’s original
condition.  Where there is a measurable risk that a pre-existing condition
would have detrimentally affected the plaintiff in the future without the
defendant’s negligence, that risk must be taken into account and serves to
reduce the award of damages.  The contingency of a pre-existing condition
manifesting on its own at some point does not have to be proven to a certainty;
it is given weight according to its relative likelihood: T.W.N.A. v. Canada
(Ministry of Indian Affairs), 2003 BCCA 670.

[163]     In the
case at hand, the medical evidence that I accept does not support the
finding that Ms. R. suffered from a pre-existing condition of any kind
before the Accident.  Accordingly, there was no measurable risk that, without
the Accident, Ms. R. would have experienced the injuries that surfaced
after the Accident, including the development of fibromyalgia.  Thus, there is no
cogent basis to reduce her damages on that footing.

·       Non-Pecuniary
Damages

[164]     The
parties are significantly apart on this head of damages.

[165]     Ms. R.
seeks an award in the $90,000 to $150,000 range.  The defendants counter that
damages of between $40,000 and $60,000, at most, would be ample.

[166]     Non-pecuniary
damages are intended to compensate a plaintiff for the pain, suffering and loss
of enjoyment of life and of amenities experienced as a result of the defendant’s
negligence.  They are meant to compensate for such damages suffered to the date
of trial and those that the plaintiff will suffer into the future.

[167]     The award
should be fair and reasonable for both parties as those concepts are measured
against the adverse impact of the particular injuries on the particular
plaintiff: Hunt v. Ugre, 2012 BCSC 1704 at para. 176.  While fairness
is assessed by reference to awards made in comparable cases, because each case
is decided on its own unique facts and calls for an individualized assessment,
it is neither possible nor desirable to develop a “tariff”: Lindal v. Lindal,
[1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005 BCCA 56 at 25. 
The process is one of assessment and is not amenable to mathematical precision:
Drodge v. Kozak, 2011 BCSC 1316; Trites v. Penner, 2010 BCSC 882;
Lindal.

[168]     In Stapley
v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A. set out a
non-exhaustive list of factors to be considered in awarding damages under this
head.  They include:  the plaintiff’s age; the nature of the injury; the
severity and duration of the pain; disability; emotional suffering; loss or
impairment of life; impairment of family, marital and social relationships;
impairment of physical and mental abilities; loss of lifestyle; and the
plaintiff’s stoicism.

[169]      The
injuries sustained by Ms. R. have caused her years of suffering,
fluctuating degrees of chronic pain all over her body that is sometimes quite
severe, and the concomitant diminution of joy and pleasure to most aspects of
her life.  Although her symptoms have gradually improved, particularly in the
year or so leading up to trial, they remain sufficiently significant to
continue to meet the diagnosis of fibromyalgia.  The expert opinion evidence
that I accept is skeptical that Ms. R. will ever fully recover to her
former self despite her completion of the Pain Program, commitment to physiotherapy
and other treatment modalities and reasonable exercise when she is able.

[170]     A formerly
outgoing, sociable and highly energized and engaged woman, Ms. R. is now
more reclusive and has had to lean heavily on her aging mother to perform her
share of household chores and, for about a six-month period, to assume most of
her personal grooming.  She worries about her future, including how she will be
able to care for her elderly mother in the passing years.

[171]     The
Accident has left Ms. R. to confront the grim reality that she has an
incurable and complex syndrome that manifests as chronic pain and an array of
other unwelcome physical, psychological and cognitive impairments.  For years
to come, possibly indefinitely, she will be vulnerable to episodic aggravation
of her physical symptoms, which in turn, will disrupt her sleep and produce an
adverse effect on her overall emotional and cognitive well-being.  The person
she was before the Accident has been forever altered.

[172]     While the
toll taken on Ms. R. by the ill-effects of the Accident have been life-
altering domestically, emotionally, recreationally, socially and vocationally,
the most deleterious consequence for her is that it has limited her ability to
fully realize her most passionate of life’s goals, namely to serve her faith.

[173]     I have
reviewed all of the cases placed before me by counsel.  I do not propose
to review them in detail as they provide general guidelines only, other than to
say that only one of the authorities relied on by the defendants involved a
plaintiff afflicted with fibromyalgia or a chronic pain syndrome.  Ms. R.’s
authorities are far more instructive in light of their factual similarities to her
circumstances; even still, they are not determinative.

[174]     Having
considered the evidence as a whole and the application of the governing
principles, it is my opinion that a fair and reasonable award for Ms. R.’s
non-pecuniary damages is $130,000.

·       Loss
of Earning Capacity/Opportunity

[175]    
The legal framework that informs an award for loss of earning capacity
was helpfully summarized by Dardi J. in Midgley at paras. 236-240:

The recent jurisprudence of the Court of Appeal has affirmed
that the plaintiff must demonstrate both an impairment to his or her earning
capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a “capital asset”
approach: Perren v. Lalari, 2010 BCCA 140 at para. 32. Regardless
of the approach, the court must endeavour to quantify the financial harm
accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y at para. 183.

 As
enumerated by the court in Falati v. Smith, 2010 BCSC 465 at para. 41,
aff’d 2011 BCCA 45, the principles which inform the assessment of loss of
earning capacity include the following:

(i) The standard of proof in relation to hypothetical or
future events is simple probability, not the balance of probabilities: Reilly
v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be
given weight according to their relative likelihood: Athey at para. 27.

(ii) The court must make allowances for the possibility that
the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency must show a “realistic
as opposed to a speculative possibility”: Graham v. Rourke (1990), 75
O.R. (2d) 622 at 636 (C.A.).

(iii) The court must assess damages for loss of earning
capacity, rather than calculating those damages with mathematical precision: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43.
The assessment is based on the evidence, taking into account all positive and
negative contingencies. The overall fairness and reasonableness of the award
must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.

 Although
a claim for “past loss of income” is often characterized as a separate head of
damages, it is properly characterized as a component of loss of earning
capacity: Falati at para. 39. It is compensation for the impairment
to the plaintiff’s past earning capacity that was occasioned by his or her
injuries: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley
v. Bath, 2010 BCCA 10 at paras. 31-32; X. v. Y at para. 185.

 While
the burden of proof relating to actual past events is a balance of
probabilities, a past hypothetical event will be considered as long as it was a
real and substantial possibility and not mere speculation: Athey at para. 27.

This court in Falati at para. 40 summarized the
pertinent legal principles governing the assessment of post-accident, pre-trial
loss of earning capacity and concluded that:

[40] … the determination of a plaintiff’s
prospective post-accident, pre-trial losses can involve considering many of the
same contingencies as govern the assessment of a loss of future earning
capacity. … As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA
613, at para. 29,

“What would have happened in the past but for the
injury is no more ‘knowable’ than what will happen in the future and therefore
it is appropriate to assess the likelihood of hypothetical and future events
rather than applying the balance of probabilities test that is applied with
respect to past actual events.”

[176]     The law
has long recognized that unknown contingencies and uncertain factors make it
impossible to calculate lost opportunities and a loss of earning capacity with
any precision: Erickson at para. 271.  It is because the
occurrence of hypothetical and future events is unknown that allowances must be
made for relevant and realistic positive and negative contingencies.

Past Loss

[177]     Assessing Ms. R.’s
damages for loss of earning capacity, both past and future, is difficult
because by choice, she did not work every year and at the time of the Accident
was unemployed and at crossroads of sorts about her future.

[178]     Ms. R.
submits that the assessment of her past loss claim should incorporate two basic
propositions:

(i)     she
was earning $36,000 annually before she was laid off from the Bahá’í Training
Institute seven weeks or so before the Accident, and another approximately $3,200
from teaching Italian.  The quantification of her past wage loss should
therefore take into account that she was capable of earning $39,200 annually;
and

(ii)    at
the time of the Accident, she was receiving employment insurance benefits which
she was content to do for about a year while she planned what her vocational future
held in store.  Ms. R. contends that commencing in about the summer of
2008 she would have found a paid full-time job had the Accident not happened.

[179]     Building
on that core, Ms. R. asserts that it is reasonable that her wage loss be
assessed as lost earnings at the rate of $40,000 per year ($160,000) over four
years, starting in the summer of 2008.  She submits that the global figure be
discounted by a factor of 25% to reflect negative contingencies and that an
additional deduction of 20% be taken for income tax, yielding a total net loss
of $96,000.

[180]     The
defendants’ position is that Ms. R. was unemployed with no immediate job prospects
at the time of the Accident, and has no provable loss of income claim.

[181]     Neither
position is tenable on the evidence.

[182]     In the
first place, Ms. R. does not have a demonstrated history of sustained annual
employment earnings.  She is not driven by money or the trapping of the material
world.  Throughout most of her adult life, service to her faith has taken precedence
over pursuing remunerative work.  Although she was mulling over the direction
of her future after being laid off in May 2007, there was no cogent
evidence to suggest that she planned to deviate from her well-settled life
priorities or embark on any major re-training.

[183]     In the ten
year period immediately preceding the Accident, Ms. R. held only two paid positions
in addition to teaching Italian.  The cumulative duration of her full-time gainful
employment in the span of that decade amounted to no more than three years and
eight months (assuming she spent two years with Goldline), all of which was concentrated
in the last five years.  Of that, she had not held a full-time position with
the same employer for more than two years.  Again, that two-year span assumes that
she remained with Goldline that length of time, which is not entirely clear on
the evidence.  Ms. R. spent the first five years of that ten-year stretch
in Israel serving her faith and did not participate in the paid workforce at
all.  In her full-time positions between 2002 and the date of the Accident,
Ms. R. earned the relatively modest annual salaries of $28,800 and
$36,000, respectively.

[184]      I regard
her work history in the five to seven year period immediately preceding the
Accident, rather than the entire ten years, to be a fair reflection of her
likely employment pattern thereafter, absent the Accident.

[185]     Ms. R.
owns a condominium on Georgia Street in Vancouver and a one-quarter interest in
what she describes as a family property in Victoria, British Columbia.  She
testified that she rents the Vancouver property as a short-term furnished
apartment.  According to her, it produces a monthly rental amount of
approximately $2,000, which may fluctuate depending on whether it is rented in
the high or low season, and whether there are periods when it stands vacant.  Ms. R.
indicated that although she includes the gross income derived from her partial
interest in the family rental property, that income does not come to her
directly.  She was not asked to elaborate on that point.

[186]     The summaries
of Ms. R.’s income tax returns for the years 2005 through 2009 inclusive
were in evidence.  In those years, her reported rental income was as follows:

2005         Gross rental – $30,550          Net
rental – $4,532

2006         Gross rental – $41,700          Net
rental – $2,934

2007         Gross rental – $46,050          Net
rental – $5,980

2008         Gross rental – $55,947          Net
rental – $13,981

2009         Gross
rental – $41,845          Net rental – $8,822

[187]     Ms. R.
could not recall her rental income, either gross or net, for 2010 or 2011.

[188]     The
schedules to Ms. R.’s tax returns detailing the deductions taken against
the gross rent were not before me, and evidence about how the net figures were calculated
was non-existent.

[189]     According
to Ms. R., in the two or three years prior to trial, she has found it
difficult to meet her expenses from all sources of income available to her.  While
I accept that to be accurate, it is worthwhile to examine her spending in
that timeline.  In addition to being able to cover her day-to-day living costs,
she has had adequate funds to travel and pay for various treatments and
retraining pursuits.  I would add that after being laid off in May 2007,
she clearly considered herself able to afford to take as long as a year away
from the paid workforce.

[190]     I think
it is reasonable to infer that the amount of net rental income declared by Ms. R.
for tax purposes is not reflective, and is likely considerably less than, the
amount that she actually has in hand and at her disposal from that source in
any given year.

[191]     All things
considered, I conclude that the passive rental income received by Ms. R.
has helped to ameliorate any sense of a pressing financial necessity for her to
be gainfully employed on an annual basis, and has allowed her to devote
significant amounts of her time in the unpaid service to the Bahá’í community,
here and abroad.

[192]     That is
not to say, however, that if the Accident had not occurred, Ms. R. would
not have pursued gainful employment after being laid off from the Bahá’í
Training Institute.  I believe that she would have, as discussed below.
I also think it realistic that she would not have relinquished her job
teaching Italian anytime soon, had the Accident not occurred.

[193]     The
defendants contend that Ms. R.’s WIDHH-assisted job search after the
Accident was extensive and that it is significant that it did not result in a
single offer of employment.  Quoting the adage, “the proof is in the pudding”,
they assert that her lack of success indicates that she simply lacks the
transferable skills required to land a paying job.  On this reasoning, the
defence argues that Ms. R. has not sustained any wage loss or loss of
capacity prior to trial.

[194]     The
obvious and fatal flaw in this analysis is that it purports to measure Ms. R.’s
employment potential had the Accident not occurred by reference to the fruits
(or lack thereof) of her job search efforts undertaken in her compromised
post-Accident state.  Somewhat at odds with this position, the defendants at the
same time acknowledged that her job search after the Accident was scattered
and, to some extent, reflected unrealistic expectations.  I have already
concluded that her unfocused approach was symptomatic of her Accident-induced
syndrome.

[195]     It cannot
be reasonably disputed that the injuries flowing from the Accident have
impaired Ms. R.’s earning capacity up to trial.  More specifically,
I find that despite the gradual progress she has made in the year
preceding trial, she has remained disabled from working full-time since the
Accident.  The evidence persuades me that starting only recently, at the
beginning of 2012, Ms. R. became capable of working part-time hours and
then only on an intermittent basis and so long as she had an accommodating
employer.  I hasten to note, however, that by that stage, she had
undertaken retraining at the Coaches Training Institute – a path that I consider
to have been reasonable to follow in the circumstances – which I find
precluded her from embarking on any part-time work within that pre-trial
timeline.

[196]     The
evidence indicates that since the Accident, and because of it, Ms. R. lacked
the ability to concentrate with the sustained precision required to work as a
certified interpreter or translator if she were to become qualified as such. 
She tried tutoring but found that she lacked the necessary stamina and degree
of concentration.  She experienced the same impairments in attempting to
maintain her teaching position at the Italian Cultural Centre.

[197]     The
evidence supports the following real and substantial possibilities had the
Accident not happened:

(i)     Ms. R.
would have taken several months, and up to a year, out of the paid workforce to
do volunteer work and consider her future prospects;

(ii)    she
would have maintained her part-time teaching position with the Italian Cultural
Centre for a considerable period;

(iii)   she
would have sought and obtained remunerative employment on a full-time basis
suitable to her skills and education at a minimum pay grade equivalent to the
average salary of her two prior full-time jobs and more likely approaching the
remuneration she received at the Bahá’í Training Institute; and

(iv)   she
would have worked in that full-time position for less than two years, within
the four years or so falling between the beginning of the summer of 2008 and
the date of trial.

[198]     The single
largest negative contingency affecting Ms. R.’s earning capacity is that she
would have chosen to assume a prolonged voluntary commitment to serve the Bahá’í
community.  In allowing for that and other non-speculative, negative and
positive contingencies, I am satisfied of a medium to relatively strong
chance that the real and substantial possibilities set out above would have
materialized.

[199]     Assessing
the relative chances of the real and substantial possibilities of what would
have happened in the past but for Ms. R.’s injuries, I am satisfied
that her diminished capacity has resulted in a pecuniary loss.

[200]     On the
whole of the evidence and aiming for overall fairness, I quantify Ms. R.’s
loss to trial to be $40,000.  As she is only entitled to receive her net loss,
I direct counsel to make the necessary calculations to determine that
figure, with liberty to apply if they are unable to reach agreement.

Future Loss

[201]     My task is
to compare the likely future of Ms. R.’s working life if the Accident had
not happened, to her likely future working life after the Accident: Gregory
v. I.C.B.C., 2011 BCCA 144 at para. 32.  Many of the considerations
material to Ms. R.’s claim for past loss of earning capacity have
application to her future loss claim.

[202]     The
defence’s simple contention is that Ms. R. has failed to prove any loss
under this head.

[203]     Ms. R.
argues that the Accident is responsible for an impairment of her future earning
capacity that gives rise to a substantial possibility of significant pecuniary
loss.  Her counsel proposes that her diminished capacity ought to be quantified
by one of two scenarios.  The first is premised on the footing that Ms. R.
would have earned the sum of $40,000 annually until age 65.  Applying the multipliers
contained in the report of the economist, Robert Carson, and deducting 25% for
additional negative contingencies not already factored into Mr. Carson’s
numbers, including that Ms. R. may be able to work part-time, results in
the present value of her loss at $347,070.

[204]     The alternate
approach advocated by Ms. R. uses the mid-range of the salaries of
foreign-born women, age 50 years or older, working in
administrative/supervisory occupations as compiled by Mr. Carson, with a
25% deduction.  This methodology yields a future loss of $437,212.50.

[205]     For the
reasons already given in addressing Ms. R.’s past loss claim, the
foregoing approaches are constructed on highly implausible hypotheticals.  There
is no realistic evidentiary grounding to support either analysis.  The defence
position is also extreme and without merit.

[206]     Ms. R.’s
alternate submission, based on the loss of capital asset approach, is that she
be awarded damages between $150,000 and $200,000.

[207]     The
syndrome Ms. R. suffers from is incurable.  As Dr. Nguyen observed, she
will likely continue to have neck and back pain on an ongoing and permanent
basis, with episodes of worsening of her baseline pain.  The prognosis for Ms. R.’s
full recovery is accordingly guarded at best, giving rise to a realistic and
substantial possibility that the associated diminution of her full-time earning
capacity could unfortunately be of a prolonged duration, and perhaps even
permanent.  The prospect of her capacity to work part-time is more optimistic and
will likely be enhanced by the results of her vocational evaluation that will
help her identify possible future employment options in her impaired state. 
Still, for her to re-enter the workforce successfully, even on a part-time
basis, Ms. R. must do so gradually and with an employer who is prepared to
tolerate the workplace accommodations she requires to enable her to take breaks
to stretch and move around.

[208]     The
evidence amply supports a real and substantial possibility that, without the
Accident, Ms. R. would have maintained her preferred pattern of taking
paid employment for select periods of time only in favour of opting to serve
her faith on a voluntary basis from time to time and possibly for considerable
segments of time.  On the other hand, the contingency that, had the Accident
not happened, she may have voluntarily withdrawn from the paid workforce in
order to return to school for further education or retraining, is speculative
on the evidence.  Nor is there a real and substantial possibility that, absent
the Accident, Ms. R.’s remuneration would have been appreciably more or
less than the level of earnings she was paid at the Bahá’í Training Institute.

[209]     The
realistic possibility of her being able to put her proficiency in languages to marketable
use does exist, but carries a relatively low chance of ever actualizing given
her cognitive weaknesses.

[210]     The
evidence amply establishes that Ms. R.’s future earning capacity has been
deeply compromised by her injuries.  She has also proven a real and substantial
possibility that her diminished capacity caused by the Accident will generate a
pecuniary loss into the future.  The next step is to quantify that loss.

[211]     In my
view, this is not an appropriate case to engage the “earnings approach” to
assess Ms. R.’s damages.  It is instead preferable to quantify Ms. R.’s
loss by taking into account the factors that inform the capital asset approach
laid out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.). That
assessment involves considering factors such as whether she: (i) has been
rendered less capable overall of earning income from all types of employment;
(ii) is less marketable or attractive as a potential employee; (iii) has lost
the ability to take advantage of all job opportunities that might otherwise
have been open; and (iv) is less valuable to herself as a person capable of
earning income in a competitive labour market. The evidence establishes that
all of these factors have application to Ms. R.

[212]     Bearing in
mind the applicable legal principles, including the Brown criteria, in
light of the evidence and applying the present value tables in Mr. Carson’s
report, I conclude that in all the circumstances the sum of $95,000 is a
fair and reasonable measure of Ms. R.’s loss of future earning capacity.

·       Special
Damages

[213]     Ms. R.
is permitted recovery of the out-of-pocket expenses she reasonably incurred as
a result of her injuries.  Her entitlement is derived from the fundamental
principle that an injured person is to be restored to the position she would
have been in had the negligence not happened: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99
(C.A.) at 78.

[214]     Ms. R.
seeks an award of $14,797.84 in special damages for which she has provided
supporting invoices.  They relate predominantly to physiotherapy, massage
therapy, acupuncture and the fees she has paid to the Coaches Training
Institute in respect of the courses she has taken to become a personal/life
coach.  To a lesser extent, the damages also cover prescription and
over-the-counter medications, minor exercise equipment, a heating pad,
homeopathic sessions and a handicap parking pass.

[215]     Without
offering reasons, the defendants object to the following elements of Ms. R.’s
claim:

(1)    shiatsu
therapy – $39.20;

(2)    homeopathy
sessions – $690,00;

(3)    Optimum
Herbal Group – $660.99;

(4)    UBC
non-refundable course deposit – $100.00; and

(5)    Coaches
Training Institute fees – $3,895.

[216]     Ms. R.
saw a homeopathic doctor to help her address her pain and other symptoms
because she found that she was not able to tolerate conventional medication and
was vigilant in her quest for symptomatic relief.  I have not been
persuaded that there is anything inherently unreasonable for an injured
plaintiff to seek assistance from a homeopathic doctor; the reasonableness of
that course of action must be assessed in the context of the particular case.  I am
of the view that Ms. R.’s conduct in that regard was reasonable and was
not pursued to excess.

[217]     The single
session of shiatsu therapy to help relieve her symptoms was likewise entirely
reasonable.

[218]     Ms. R.
paid the deposit to UBC in the spring of 2011 in the good faith of completing
the year-long course to learn English as a second language and thereby upgrading
her language skills to enhance her employment prospects.  It, too, was a
reasonable expenditure given Ms. R.’s circumstances and was lost because
she was unable to pursue the course on account of her Accident-induced injuries.

[219]     The law
has long-recognized the cost of reasonable retraining to be a proper element of
recovery under future loss: Palmer v. Goodall (1991), 53 B.C.L.R. (2d)
44 at 59 (C.A.); Power v. Carswell, 2011 BCSC 1672 at paras. 201-202. 
Counsel did not direct my attention to any authorities concerning recovery of
that expense where it has been incurred before trial.  However, I can see
no principled reason to deny recovery of such cost where it is incurred prior
to trial provided it is otherwise reasonable and appropriate.  Given the nature
of Ms. R.’s deficits brought about by the Accident and the poor outcome of
her post-Accident job search, it was reasonable for her to take appropriate
steps to enhance her general employability by taking those courses. 
Accordingly, she is entitled to compensation for that out-of-pocket cost in the
amount of $3,895.

[220]     I have no
cogent evidence about the services provided by the Optimum Herbal Group and,
therefore, am not able to allow that expense.

[221]     To conclude,
the amount of $14,136.85 is awarded as special damages.

·       Cost
of Future Care

[222]     The
purpose of damages for the cost of future care is to compensate for a financial
loss reasonably incurred to sustain or promote the mental and/or physical
health of an injured plaintiff: Gignac at para. 30.  The services
and items must be justified as reasonable in the sense of being medically
required or justified, and in the sense that the plaintiff will be likely to
incur them based on the evidence: Milina; Izony v. Weidlich, 2006
BCSC 1315; Kuskis v. Tin, 2008 BCSC 862.

[223]     Recommendations
made by a medical doctor or made by various other health care professionals are
relevant in determining whether an item or service is medically justified: Gregory
at para. 38.  An evidentiary link between the medical assessments and the
recommended treatment is essential: Gregory at para. 39; Gignac
at paras. 31-32.  General contingencies and those specific to the
plaintiff are to be taken into account where appropriate: Gignac at para. 52.

[224]    
The approach to be taken in assessing future care costs was settled by
the Supreme Court of Canada in Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9, at paras. 21-22:

Damages for cost of future
care are a matter of prediction. No one knows the future. Yet the rule that
damages must be assessed once and for all at the time of trial (subject to
modification on appeal) requires courts to peer into the future and fix the
damages for future care as best they can. In doing so, courts rely on the evidence
as to what care is likely to be in the injured person’s best interest. Then
they calculate the present cost of providing that care and may make an
adjustment for the contingency that the future may differ from what the
evidence at trial indicates.

The resulting award may be
said to reflect the reasonable or normal expectations of what the injured
person will require. Jane Stapleton, “The Normal Expectancies Measure in
Tort Damages” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the
tort measure of compensatory damages may be described as the “‘normal
expectancies’ measure”, a term which “more clearly describes the aim of awards
of compensatory damages in tort: namely, to re-position the plaintiff to the
destination he would normally have reached … had it not been for the tort”. The
measure is objective, based on the evidence.  This method produces a result
fair to both the claimant and the defendant. The claimant receives damages for
future losses, as best they can be ascertained. The defendant is required to
compensate for those losses. To award less than what may reasonably be expected
to be required is to give the plaintiff too little and unfairly advantage the
defendant. To award more is to give the plaintiff a windfall and require the
defendant to pay more than is fair.

[225]     Ms. R.
claims an award for the cost of manual therapies over the next five years, a gym
membership renewed annually for five years, 20 sessions of personal training
and a vocational assessment.  She also seeks an award for the future cost of
housekeeping services, discussed under separate heading below.

[226]     With respect
to her claim for a gym membership, I accept Ms. R.’s evidence that
the equipment at the gym in her apartment building is in poor condition,
malfunctions from time to time, and is in limited supply and thus not always
available for use.  I find also that the cleanliness of the pool has been
an issue in recent months.

[227]     The
defendants’ position was not developed beyond referring to the recent Court of
Appeal decision of Gignac v. ICBC, 2012 BCCA 351, and seemingly agreeing
that the cost of cognitive behavior therapy was warranted.  I note here
that there was no evidence concerning the amount associated with such therapy,
or whether Ms. R. would be likely to participate in it.

[228]    
On the evidence and particularly the recommendations of the medical
experts, and taking into account the relative contingencies, I am
satisfied that the reasonable expenses set out below represent therapies and services
that would be beneficial to Ms. R. and promote her health and well-being,
are medically justified within the meaning contemplated by the authorities and are
likely to be incurred by Ms. R.  Expressed in present-day values, these
reasonably incurred costs are:

(1)     massage
and physiotherapy, including an exercise-
oriented physiotherapist as recommended by Dr. Werry                  $3100

(2)     annual
gym membership for five years                                            $5,100

(3)     personal trainer                                                                     $799,
plus tax

[229]     I have
allowed Ms. R’s claim for the fees she paid to the Coaches Training
Institute.  Under this damages head, she seeks an award to cover the costs of a
vocational assessment in accordance with the recommendation made by Dr. Nguyen. 
In my view, the personal/life coach training that Ms. R. has been taking,
does not render redundant or unreasonable Dr. Nguyen’s recommendation that
she undergo a vocational assessment; they are not mutually exclusive courses of
action.

[230]     I consider
it reasonable and beneficial for Ms. R. to have the vocational assessment
recommended by Dr. Nguyen, and award the sum of $5,200, plus applicable
taxes.

[231]     In sum, Ms. R.
is awarded $14,199, plus taxes as indicated above, for the costs of her future
care.

·       Cost
of Homemaking Services and Loss of Housekeeping Capacity

[232]      It is
beyond legitimate debate that, due to the Accident, Ms. R. has been unable
to do her share of the household cleaning, grocery shopping, meal preparation
and laundry.  Of these domestic tasks, she is currently only able to occasionally
drive her mother to the grocery store and provide minimal help with meal
preparation on a sporadic basis.  Since the Accident, her mother has performed the
lion’s share of the housekeeping that Ms. R. regularly performed before
the Accident but is unable to carry out due to her injuries.

[233]     It is
reasonable to infer from the evidence that Ms. R.’s ability to resume some
degree of housekeeping tasks will gradually get better in tandem with the forecasted
improvement of her symptoms.  That said, the evidence demonstrates it is
unlikely that she will ever again be able to carry out household chores on the
demanding end of the spectrum, such as heavy cleaning, or be able to do the less
demanding domestic tasks with the regularity they require.

[234]     The
evidence indicates that the replacement cost of those chores is in the
neighbourhood of $23 per hour.

[235]     Ms. R.
seeks compensation relative to her impaired ability to do housekeeping under
two heads of damages: as a component of the cost of her future care in the
amount of $59,800, and as a standalone award for loss of housekeeping capacity
in the amount of $12,500.  The former figure of $59,800 is predicated on the
assumption that Ms. R. will require homemaking services for 10 hours per
week at the rate of $23 per hour, 52 weeks per year over the ensuing five
years.  It is my understanding from the submissions of Ms. R.’s counsel
that the latter category of damages is intended to reflect Ms. R.’s loss
of capacity in the intervening period between the Accident and trial.

[236]     Turning
first to Ms. R.’s claim for loss of housekeeping capacity, the leading
decisions are Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.), a
decision of a five-member panel of the Court of Appeal, and McTavish v.
MacGillivray, 2000 BCCA 164.

[237]    
In McTavish, Huddart J.A. comprehensively surveyed the
majority and minority decisions in Kroeker, as well as other pertinent authorities,
and summarized the essential principles in relation to past and future loss of
capacity claims.  At para. 43, her Ladyship emphasized the important point
that claims for loss of housekeeping capacity are distinct from claims
respecting the plaintiff’s future cost of care:

As I have noted, the majority in Kroeker quite
clearly decided that a reasonable award for the loss of the capacity to do
housework was appropriate whether that loss occurred before or after trial. It
was, in my view, equally clear that it mattered not whether replacement
services had been or would be hired. It did not adopt the analogy with future
care as a general rule. Nor did it permit, nor in view of the authorities to
which I have referred could it have permitted, a deduction for the
contingency that replacement services might not be hired. Allowances for
contingencies are for risk factors that might make the loss of capacity more or
less likely.

[238]    
Because an award for the loss of housekeeping capacity reflects the loss
of personal capacity, which is an asset, the issue of whether the plaintiff had
used replacement services or is likely to hire such assistance in the future
does not inform the analysis.  That distinguishes those damages from future cost
of care awards as recently affirmed by Kirkpatrick J.A. in O’Connell v. Yung,
2012 BCCA 57 at para. 67:

…Damages for the cost of future care serve a different
purpose from awards for loss of housekeeping capacity.  Unlike loss of
housekeeping capacity awards, damages for the cost of future care are directly
related to the expenses that may reasonably be expected to be required (Krangle
at para. 22).  Determining the amount of a reasonable cost of future care
award entails a unique set of considerations, as Professor Cooper-Stephenson
explains at 416:

It is clear that both the need
and the opportunity for the expenditure of moneys is relevant to the
assessment.  Therefore, if the plaintiff’s medical condition may require care
of a less expensive nature—such as institutional care—then the award for future
cost of care should reflect that possibility.  Equally, it would seem, if the
evidence is not conclusive that more expensive care will be available, or that
the plaintiff will find such care to be physically and emotionally
satisfactory, then the award should reflect those possibilities; the reduced
award will then reflect the best estimate of what will be reasonably necessary
to provide optimum care.  In this sense, the court is bound to look to the
actual spending potential of the plaintiff.

[239]     Ms. R.
has established entitlement to compensation for her loss of housekeeping
capacity from the date of the Accident to the date of trial.  Before address
the quantum of that loss, I will deal with her claim for housekeeping
services as a component of her future cost of care.  First, I note that there
has been no recommendation by any physician or other health care provider that Ms. R.
would benefit from hiring such replacement services.  Arguably, that evidentiary
link may be reasonably inferred from consideration of the entirety of the
medical assessments and other relevant evidence.  Even so, another hurdle is
that there is no cogent evidence that Ms. R. would actually employ those
services, were they provided.  I conclude, therefore, that Ms. R. is
not entitled to damages for this loss as a component of her future care award.

[240]      However, that
does not close the analysis.  In my view, the fact that Ms. R. has not
established entitlement to those damages under the rubric of the costs of her future
care does not necessarily preclude an award conceptualized as the loss of her
future housekeeping capacity.  The evidence is overwhelming that since the
Accident, she has suffered an impairment of her housekeeping capacity and that it
will continue into the future.

[241]     Keeping in
mind that an award for the loss of housekeeping capacity is meant to compensate
Ms. R. for her diminished loss of capacity – the loss of her asset – and
is not a precise mathematical calculation, and taking into account the relevant
contingencies supported by the evidence as best I am able, I conclude
that the sum of $38,000 is a fair award to reflect the whole of Ms. R.’s
loss of housekeeping capacity before trial and afterwards.  It should go
without saying that I have not included any part of this award in the
assessment of Ms. R.’s non-pecuniary damages.

Mitigation

[242]     The tenor
of defence counsel’s questioning of a number of witnesses about the benefits Ms. R.
would realize from exercise and her adherence to an exercise regime after the
Accident, as well as her use of Lyrica, antidepressants and other medications,
suggested the development of a mitigation argument from the defendants. 
Although I understood defence counsel to confirm in his closing
submissions that he was not pursuing that line of argument, the devotion of
trial time to those factual issues was such that I choose to briefly
address the point.

[243]     A
plaintiff’s positive duty to act reasonably in mitigating her losses is well-established:
Janiak v. Ippolito, [1985] 1 S.C.R. 146; Chiu (Guardian ad litem
of) v. Chiu, 2002 BCCA 618; Shapiro v. Dailey, 2012 BCCA 128.

[244]     In my
view, Ms. R. took reasonable steps to assist in her own recovery and
followed the advice of her physicians to the extent that she was reasonably able
including, following as best she could appropriate stretching and exercise, and
reasonably trying medications given or prescribed to her.  Having regard to the
adverse side-effects that she suffered while taking most medications, Ms. R.’s
decision to not continue to take Lyrica or Cymbalta or give another
antidepressant a try, was not unreasonable in all the circumstances.

[245]     In sum,
the defendants have not discharged their onus to establish, on a balance of
probabilities, that Ms. R. failed to act reasonably, much less that her
damages would have been less had she acted differently.

COSTS

[246]    
If the parties are unable to agree as to costs, they may file written
submissions implementing a time table of their choosing that incorporates a
final deadline of September 18, 2013.

__________ “Ballance
J.”_________
Ballance J.