IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130725

Docket: 09-1884

Registry:
Victoria

Between:

Leesa Marie
McCulloch

Plaintiff

And

Amanda Leigh Isaac

Defendant

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

[1]            
On May 8, 2008, the plaintiff was in the process of leaving a parking
lot in Salmon Arm, B.C. when her car was struck from behind by the defendant’s
vehicle.

[2]            
The defendant admits liability for the collision.

[3]            
Notwithstanding the minimal damage to both vehicles, the plaintiff
believes she suffered injuries to her neck and low back which continue to
affect her four years later.

[4]            
She is seeking compensation for her injuries, including non-pecuniary
damages, loss of future earning capacity, past special damages, loss of income and
costs related to her future care.

[5]            
The defendant advances the view that this was a very modest impact with
negligible damage and the plaintiff could not reasonably have been injured to
the extent now claimed. The defendant also alleges that the plaintiff failed to
mitigate her damages.

I.                
Evidence

A.             
Ms. McCulloch

[6]            
The plaintiff was born December 13, 1982, and is now 29 years old. She
lives in Salmon Arm with her husband and two children, aged five and seven.

[7]            
She is currently a homemaker. Before her marriage she last worked in
2002 as a waitress. She also performed cleaning services for her father’s
renovation business. She said she intended to return to work when her youngest
child entered kindergarten in September 2012.

1.              
Accident

[8]            
At the time of the accident, the plaintiff’s mother was a passenger in the
car. Both occupants had secured their seatbelts when Ms. McCulloch reversed out
of her parking stall and stopped in the traffic lane behind her car; she was
preparing to leave the parking lot when she observed a vehicle pulling out from
a parking stall behind. This car backed into the lane and struck the back end
of her car. The plaintiff said the collision caused damage to a fairly large
area of the bumper of her car. She described the area of damage as fairly large
but this did not correspond to the evidence of a small scratch (one to two
inches) at the top left of the bumper shown on photographs taken just after the
collision.

[9]            
The defendant testified that she was parked in a spot across from the
plaintiff’s car. She had slowly backed out of her parking spot when she heard the
back up sensor in her car sound a warning; she applied her brakes and felt a
very minor bump.

[10]        
The actual damage to the plaintiff’s bumper caused in the collision was
much smaller than that described by the plaintiff. The plaintiff did not accept
that the impact caused only a small scratch to the top left part of the bumper.

[11]        
There is an agreed statement of facts dealing with the damage to the
vehicle that will be dealt with later in these reasons. The plaintiff’s
description of damage was at variance to the agreed statement of facts.

[12]        
The plaintiff described her body as moving forward on impact following
which she began to feel nauseous and her neck began to stiffen. She felt that
the defendant was going quite fast and described the impact as more than a
minor bump. As she drove away from the scene, the plaintiff felt shaken up and
drove directly to the hospital where she was seen by a physician.

[13]        
The plaintiff was cross-examined about a handwritten statement in which
she described the defendant’s speed as in the range of 15 to 20 km/h as she
backed out and “smashed” into the plaintiff’s car. Counsel suggested she was
exaggerating the events of the accident; she denied that her description was an
exaggeration and denied overstating the force of the impact. She said she had
simply estimated the defendant’s speed.

2.              
Injury

[14]        
A few days after the accident the plaintiff visited her family
physician, Dr. Aitchison, where she reported experiencing a stiff neck and
low back pain. Dr. Aitchison told her she had soft tissue damage and
recommended she see a physiotherapist and do home exercises. He also advised
her to obtain massage services and try swimming.

[15]        
The plaintiff testified that she received massage therapy treatments for
almost two years and did pool therapy off and on.

[16]        
Ms. McCulloch acknowledged that it was important to follow her doctor’s
advice in regard to physiotherapy and exercise. She recognized that
physiotherapists have a particular skill and function in the recovery process.
She was made aware of the importance of working through pain as part of the
healing process. Her first physiotherapist visit was July 2008; she said that
was her first opportunity to see a physiotherapist. The physiotherapist told
her it would take six to eight visits and possibly more for her to achieve some
return to her pre-accident condition.

[17]        
The plaintiff said that the physiotherapy treatments on July 16 and
August 6, 2008 made her feel worse and she did not take any further
physiotherapy treatments.

[18]        
She was asked about a discussion with her family doctor on July 23 Dr. Aitchison
telling her that physiotherapy was the most important treatment she could
pursue; she could not remember this exchange. She did recall a general
discussion about physiotherapy and its value in aiding her recovery.
Nonetheless she went to one further physiotherapy treatment after July 23. She
said she told her doctor she was discontinuing physiotherapy.

[19]        
She was cross-examined about conversations with her family doctor in
August 2008, wherein she appears to have discussed her interest in seeking out
physiotherapy. She did not remember such an inquiry. She said she talked to her
doctor many times about physiotherapy aggravating her symptoms and her doctor
seemed fine with her decision to discontinue that treatment.

[20]        
She was asked about a February 12, 2009 conversation with her doctor
when she asked for a referral to physiotherapy. She did not remember asking,
but acknowledged that Dr. Aitchison referred her for further physiotherapy.

[21]        
She was asked about her comments to the doctor on February 12, 2009,
when she reported that physiotherapy and massage therapy were helpful; she did
not remember saying physiotherapy was helpful. She did not go to physiotherapy notwithstanding
obtaining a referral for physiotherapy treatment at that time.

[22]        
The plaintiff did not recall a March 6, 2009 letter from her doctor to
her lawyer discussing the importance of physiotherapy. Nor did she recall
telling her doctor she was going to physiotherapy; although Dr. Aitchison’s records
reflect this conversation.

[23]        
Ms. McCulloch acknowledged receiving a referral for physiotherapy with Ms. Johns
in July 2009. She said she did not go for that treatment because her previous
physiotherapy experience made her feel terrible. She was asked whether she told
her family doctor she wanted a different physiotherapist in September 2009, as
was recorded by her family doctor. She could not recall this discussion but
agreed that she had received a referral to Ms. Johns; she could not remember a
second recommendation to see Ms. Johns.

[24]        
The plaintiff received some massage therapy for two years but stopped
due to cost. She observed that massage therapy provided only temporary relief
of her symptoms.

[25]        
Her doctor recommended that she try swimming once per week and she
claimed to have followed a pattern of swimming four times per month. On cross-examination
Ms. McCulloch admitted to attempting swimming only three times. At her January
27, 2011 examination for discovery she described her post accident attempts
swim:

215      Q.        And did you try swimming on more than one
occasion?

 A.         No, no,
not really. I swear maybe three times and that was it.

[26]        
The plaintiff then said that she could not afford water aerobics. She
has done home exercises, stretching and walked intermittently for approximately
15 minutes but she received no other treatments.

[27]        
After the collision, the only medication she took was Tylenol.

[28]        
Prior to the accident she did not have pain in either area and described
her health as “good”. Since the accident she has continued to have low back and
neck pain.

[29]        
On January 3, 2009, the plaintiff’s husband kicked her in the chest and
ribs resulting in her attending the local hospital. She testified that the pain
from this incident lasted three to four months. On cross-examination she
conceded that that her rib pain lasted five or six months but she felt that this
incident did not have any impact on her neck or back.

3.              
Employment and training

[30]        
In 2010 the plaintiff took a five-month course as a nail technician
ending in February 2011. This course involved the plaintiff attending school in
Vernon (approximately one hour away from her home) five hours per day. She testified
that there was not a lot of practical work available. She sometimes did
additional practice outside of her school hours.

[31]        
Ms. McCulloch said that during her training she was working on people’s
nails and that she lost a few days from school as a result of her symptoms.
This evidence contradicted her discovery evidence in which she said she did not
miss any time from the practical work and that there were enough clients to
keep her busy.

[32]        
She wanted to work full-time after her children were in school but
believed the injuries precluded that option. The plaintiff was referred to her
discovery evidence where she said she wanted to restrict her work at home to
preserve some work-life balance. She did not want the long hours of work
required if she worked at a salon.

[33]        
 She planned to work at a salon but felt that the strain on her back of
doing this type of work restricted her opportunities. She made one application
to Body Waves Esthetics but declined the position paying $10 per hour because
she found that the cost of childcare was too high compared with her expected
earnings; accordingly, she abandoned that plan. She also denied receiving another
job offer at Body Waves and testified that she had not planned to do nail
technician’s work at her home. In her examination for discovery she had said
she wanted to work from home but could not do so because she could not obtain a
business license. Also, in her discovery evidence she had said she only wanted
a few hours of nail work at home. She testified that this was her intention at
that time. Her current intention is to work full-time but her injuries stand in
the way of this.

[34]        
Currently she would like to go back to work part-time at a different
occupation.

4.              
Activity

[35]        
Before the accident Ms. McCulloch was an active person who performed all
of the domestic chores in the family home. She would bicycle for prolonged
periods and could walk for hours. She was a stay-at-home mother and was
unrestricted in her household and recreational activity.

[36]        
Since the accident the plaintiff limits her walking to 15 minute
intervals due to worsening symptoms. She does not bicycle now and is limited in
her endurance for household chores such as laundry, cleaning and moving heavier
objects. She develops pain when mopping, sweeping and vacuuming. She now does
60% of the housework and her husband does 40%. She said that she does these
activities but she becomes stiff afterwards.

[37]        
Overall, she said she cannot do the things that were part of her pre-accident
life. Her mood has negatively changed and her relationships with her husband
and children have suffered.

B.             
Mr. McCulloch

[38]        
The plaintiff’s husband, Mr. McCulloch, is an auto mechanic and has been
married to the plaintiff for eight years. He confirmed that since their wedding
he was the sole income earner in their home.

[39]        
He described the plaintiff as having no health problems before the
accident. He indicated that the plaintiff suffers from irritable bowel syndrome
and anxiety, but the symptoms of those conditions did not hinder her before the
accident. He did not recall the plaintiff suffering pain in her low back, knees
and elbows for six months in 2006.

[40]        
He was asked about medical records, which reflected that he had kicked
his wife in the ribs in January 2009. He said there was some miscommunication
about this event; he said he did not kick his wife although they did collide.

[41]        
He described the plaintiff as physically active with the children and
participating in sports, bicycling, and home maintenance. He said the plaintiff
has slowed down since the accident and appears to be moody, irritable, and
unable to perform all of the family chores. He said that he now does
approximately half of the housework.

[42]        
He reported that the family vacationed at a local lake in August 2008
and in February 2009 they took a vacation; during this trip the plaintiff was
able to swim. He said the plaintiff does not do winter sports.

[43]        
He said that the plaintiff is more moody and irritable and that their
relationship has been impacted with additional stresses from time to time. He
said that the plaintiff intended to return to work when the children reached
school age; childcare at the time was too expensive for them.

[44]        
He said they have no plans to have more children.

[45]        
Mr. McCulloch gave evidence of the damage to their vehicle after the
accident. His evidence did not correspond with the admissions agreed upon by
the parties. I was the told by the plaintiff’s counsel I can disregard Mr. and
Mrs. McCulloch’s evidence where it conflicts with those admissions regarding vehicle
damage.

C.             
Ms. Benzai

[46]        
Ms. Benzai is the plaintiff’s mother. She was in the vehicle at the time
of the accident. She described the impact as hard and reported the car going up
and down with the impact.

[47]        
As they left the scene of the accident the plaintiff said she was not
feeling well and they drove to the hospital.

[48]        
Ms. Benzai observed that the plaintiff is less strong and active and
reported having pain. She described her daughter as less upbeat since the
accident. Her daughter appears frustrated at the limitation in things she is
able to do. Ms. Benzai observed that the plaintiff does fewer recreational
activities, including bike riding, and does not roughhouse with the children.

[49]        
She has watched her daughter try to do manicures and pedicures and
believes that Ms. McCulloch has difficulty because buffing and filing nails is
hard on her back.

[50]        
Under cross-examination, Ms. Benzai did not recall much about the
plaintiff’s courses. She cared for the plaintiff’s child when Ms. McCulloch
attended her nail technician course for the five months ending in February
2011. However, babysitting for the plaintiff was too onerous for her on a
full-time basis.

D.             
Ms. Peacock

[51]        
Ms. Peacock is part owner of Body Waves Aesthetics in Salmon Arm. The
plaintiff submitted a resume in response to a newspaper advertisement placed by
Ms. Peacock in her search for a nail technician.

[52]        
Ms. Peacock was prepared to employ the plaintiff because she had good
marks from her school. She said that the type of work the plaintiff might have
done included lifting and bending, as well as sitting for one to two hours. The
plaintiff could be faced with six manicure or pedicure customers in a day.
There were few opportunities to rest between customers. In addition to a half-hour
lunch break, the workday generally involves an eight hour shift. Part-time
workers worked between two and three days per week.

[53]        
Ms. Peacock offered Ms. McCulloch employment but she eventually declined
the job and told Ms. Peacock she could not afford the necessary daycare costs
when she was away from home.

[54]        
Ms. Peacock described the plaintiff as well put together, a good
communicator and top of her class. She was not aware of the car accident and
did not expect to be advised of the plaintiff’s injuries.

[55]        
Ms. Peacock hired an alternate employee.

[56]        
In the nail business Ms. Peacock paid a $10.25 per hour minimum wage or
a 40% commission on sales, whichever was higher. A 40% commission employee
could earn between $1,500 and $2,000 per month on a full-time schedule of work.
A part-time employee could earn between $600 and $800 per month.

E.             
Ms. Moore

[57]        
Ms. Moore is a 71 year old resident of Castlegar, B.C. She observed the collision
which is the subject of this action. She described the defendant’s car as moving
four to five feet before impacting the plaintiff’s car. The impact and the defendant’s
speed did not seem excessive and the plaintiff’s car did not move on impact.
She observed people coming from the plaintiff’s car and no one appeared injured.

F.             
Ms. Garrett

[58]        
Ms. Garrett is a physiotherapist practicing in Salmon Arm. She treated
Ms. McCulloch on one occasion, although the plan was to see the plaintiff
over a five or six week period. Ms. Garrett described the plaintiff’s report on
this visit including low back pain and stiffness in the upper back accompanied
with headaches.

[59]        
She observed restriction in the plaintiff’s L-5 S-1 joint. She observed
the plaintiff’s muscles were tight and her joints were very restricted.

[60]        
She taught the plaintiff exercises to extend her range of motion in the low
back and neck.

II.              
Medical Evidence

A.             
Dr. MacKean

[61]        
Dr. MacKean, a physical medicine and rehabilitation doctor, provided a
report dated March 15, 2012. Dr. MacKean was instructed by plaintiff’s counsel
and was provided with the records from Dr. Aitchison, Harbour Front Massage
Clinic Records, and Live Well Physiotherapy. Dr. MacKean’s opinion was based on
information received from the plaintiff together with a review of the materials
provided.

[62]        
The plaintiff told Dr. MacKean that she had been involved in the
motor-vehicle accident on May 8, 2008, and that she had no prior history of
neck or back pain. The plaintiff told Dr. MacKean that the back bumper of her
car was struck by a car backing out of an opposite parking spot. The plaintiff
reported that she had immediate onset of low back pain, tension and nausea
before attending the hospital in Salmon Arm immediately after the accident. The
Shuswap Lake Hospital records do not reflect the plaintiff’s recollection that
she had low back pain immediately following the collision.

[63]        
The plaintiff reported to Dr. MacKean that she had chronic low back pain
and ongoing neck and upper back tension. She also reported increases in low
back pain when bending or twisting, difficulty sleeping and restless legs at
night. The plaintiff reported her low back pain is associated with washing
floors but she still does most of the housework. She told Dr. MacKean that her
ability to ride a bicycle is limited in duration to 15 minutes and that low
back pain worsens if she walks more than 30 minutes.

[64]        
Dr. MacKean formed an impression of the plaintiff as follows:

1.         Grade one whiplash associated disorder cervical
spine and upper-back.

2.         Grade two soft tissue injuries involving the lower
back and sacroiliac joint regions.

In my opinion, the ongoing problems she describes with
persistent neck and upper back pain and stiffness and persistent lower back
pain are due to injuries sustained in a motor vehicle accident that occurred
May 8^th, 2008.

It has been four years following the date of the motor vehicle
accident and it is likely she will have ongoing chronic pain, involving her neck,
upper back, and lower back.

RECOMMENDATIONS:

I would recommend an active rehabilitation program working
with a physiotherapist or kinesiologist starting with a pool therapy program
and gradually progressing into a gym program under supervision. I think this is
the best way for her to try to get her pain symptoms under better control over
time.

I do not think she needs to go to regular physiotherapy or
massage therapy treatment as it is unlikely to provide her with significant
benefit after this length of time.

I would not recommend any further diagnostic imaging.

She is a stay-at-home mom and I
would expect she would have difficulty with activities that required repetitive
bending or twisting with the spine or with lifting or carrying activities.

B.             
Cross Examination of Dr. MacKean

[65]        
Dr. MacKean described chronic pain as pain that lasts longer than six
months. She explained that a grade one whiplash produces symptoms of some
tenderness but a victim will usually have a full range of motion.

[66]        
A grade two soft tissue injury to the low back will result in a decrease
in the range of motion and tenderness in the affected area.

[67]        
She commented on the CT scan findings. She said that 30% of people 30 –
35 years of age have mild degenerative changes in their back. There is no
direct association between degenerative changes and back pain; degenerative
changes do not always become painful.

[68]        
The findings set out in the CT scan report did not change Dr. MacKean’s
opinion.

[69]        
Dr. MacKean acknowledged that subjective complaints of the plaintiff
were the core basis of her opinion. She acknowledged that most pain symptoms
from injury appear between one and three days after the event causing an injury.
The acute phase lasts for a few months and involves a reduced range of motion
which is caused by muscle tightness.

[70]        
The plaintiff reported that she experienced low back pain immediately
after the accident; this indicated to Mr. MacKean that her low back symptoms
were caused by the accident. Dr. MacKean based her opinion on the plaintiff’s statement
that she had not experienced back pain before the accident and thus the doctor
did not think her pre-existing arthritis was caused by the accident. She also
relied on the plaintiff’s report that she had no prior history of neck or back
pain

[71]        
 Dr. MacKean was asked about the plaintiff’s family doctor’s notes which
indicated that in May 2006 she had joint pains in her wrists, low back, elbows,
knees and ankles for approximately six months. Dr. MacKean said that based on
the plaintiff’s report that she had no prior history of back pain, the
osteoarthritis in the facet joints was not likely caused by the car accident.
When Dr. MacKean was referred to the plaintiff’s medical records indicating Ms.
McCulloch had complained about low back pain for six months in 2006, she could
not comment on the cause of that low back pain at that time but she said the
complaints were consistent with osteoarthritis in the facet joints.

[72]        
 Dr. MacKean believed that degenerative changes are unpredictable but
can produce intermittent pain. She said that the plaintiff’s history of low
back pain lasting six months followed by an interval without pain, followed by
more back pain after the accident could be consistent with symptomatic facet
arthritis.

[73]        
The doctor acknowledged that physiotherapy is an important feature to
manage symptoms and helps to reduce pain and improve function.

[74]        
Dr. MacKean said rehabilitation involving active mobilization and
stretching is the most important strategy to follow in post-accident soft
tissue injury cases. She said everyone will improve if they are pursuing active
rehabilitation for four to six months.

[75]        
I note that Dr. MacKean’s conclusions were based on the assumption that
the plaintiff did not have a history of low back pain and that this assumption
was germane to her opinion. This was not true. As detailed below, Dr. Coghlan
opined that Ms. McCulloch’s complaints stem from her facet osteoarthritis and
not the soft tissue injury. The defence pointed out that Dr. Coghlan was not challenged
on this point. He suggested that when the plaintiff was examined by Dr. MacKean
she was likely experiencing joint inflammation which was not present during his
examination.

C.             
Dr. Coghlan

[76]        
The plaintiff was examined by Dr. Coghlan who is also a physical
medicine and rehabilitation physician.

[77]        
Dr. Coghlan’s June 13, 2012 opinion stated:

In her examination, Dr. MacKean noted that Ms. McCulloch had
a restriction of full flexion and to a lesser extent extension in her lower
back yet I saw her at the time of my assessment two weeks earlier, she had a
full range of flexion, 7cm, with no pain produced and extension was 2cm. I also
felt there was a slight scoliosis with forward flexion and with spinous
processes turned to the right.

Based on the fact that Ms. McCulloch complained of
significant symptoms in her lower back I felt it was appropriate to consider
taking a CT scan of the lumbar spine but she has not followed through with this
recommendation.

I would also disagree with Dr. MacKean’s prognosis as I feel
that Ms. McCulloch has not had an adequate rehabilitation program to get her
functionally moving and to restore core strength.

Based on my examination at the time I saw her I did not feel
that there was any evidence of any major dysfunction in the lumbar spine. So, I
would agree with Dr. MacKean’s recommendation of an active rehabilitation
program at this stage.

Finally I did not feel that Ms.
McCulloch is functionally disabled to the extent that she could not continue to
undertake regular housework and family responsibilities.

[78]        
On August 2, 2012, Dr. Coghlan wrote a supplementary report after a
review of the plaintiff’s CT scan which was performed June 21, 2012. The CT
scan contained the following:

[The plaintiff has] appropriate alignment of the lumbar
spine. Disk spaces and vertebral body heights are maintained.

The central canal and neural foramen are maintained at L2-3
and L3-4.

There is a broad based disc bulge at L4-5, mild bilateral
facet osteoarthritis and ligamentum flavum hypertrophy. The central canal and
neural foramen are maintained.

L5-S1 showed mild bilateral facet arthritis. The central
canal and neural foramen are maintained.

Mild bilateral SI joint
arthritis was noted.

[79]        
Dr. Coghlan set-out his opinion as follows:

These findings indicate significant underlying degenerative
disease and facet osteoarthritis.

It is my opinion that if Ms.
McCulloch had sustained significant injury to her back at the time of the
accident, she would have presented with more severe acute pain and spasm in her
lower back when she presented to the doctor five days later.

[80]        
Dr. Coghlan testified that when a variance occurs in the range of motion
findings between two separate medical examinations, there is usually an acute
strain in that area of the body in the intervening period between the two
examinations.

[81]        
He said that the CT scan showed significant disease at multiple levels in
the plaintiff’s back. He said that there is degenerative arthritis in the SI
joints which explained her history of ongoing back problems over the preceding
years. He noted that the plaintiff’s primary post-accident complaints were her
neck, shoulder and mid-back. Although her low back was stiff, he said that if
she had injured her low back in the accident, he would have expected more significant
low back pain and that it would have become her major complaint.

[82]        
Dr. Coghlan said the plaintiff’s arthritis in her back is a “wear and
tear” type disease and he distinguished her CT scan findings of arthritis from those
associated with a focal disc bulge.

[83]        
In cross-examination, Dr. Coghlan acknowledged that degenerative changes
in the back are not always accompanied by symptoms. Facet arthritis is more of
an inflammatory disease that progresses over time. He acknowledged that trauma
can cause quiescent facet arthritis to become symptomatic and significant
traumas can cause inflammation. This condition can worsen over time. He noted
that the SI joint can cause inflammation particularly in women.

[84]        
He said that if the plaintiff’s asymptomatic low back complaints had
been triggered by the trauma, he would have expected her to have more acute
pain and spasm at the time of the accident. He would also have expected to see
a limited range of motion which was not immediately present after the accident
but became variable after. He did not see this type of finding in the records
of the plaintiff’s family doctor.

D.             
Dr. Aitchison

[85]        
Dr. Aitchison was the plaintiff’s treating family doctor at the time of
the accident. She did not provide expert evidence at this trial although she
testified as to certain observations made of Ms. McCulloch during the time she
cared for her and reports made by the plaintiff. Dr. Aitchison based much of
her testimony on the clinical notes she made when speaking to Ms. McCulloch. I
accept that her notes accurately reflect the exchanges with the plaintiff.

[86]        
Dr. Aitchison testified that the plaintiff had a good range of motion on
May 13, 2008. She had a good range of motion on June 11, 2008 with pain on
palpation. She recommended physiotherapy and massage to help with the
plaintiff’s musculoskeletal symptoms. In August 2008, Dr. Aitchison again
discussed physiotherapy with the plaintiff. She hoped the plaintiff would
attend physiotherapy.

[87]        
On June 11, 2008, Dr. Aitchison referred the plaintiff for physiotherapy
and massage to help with pain. By August 27, 2008, Dr. Aitchison observed that
the plaintiff had a limited range of motion in the lumbosacral spine.

[88]        
On February 12, the plaintiff told Dr. Aitchison that she found physiotherapy
and massage therapy helpful. This was not true as she was not receiving therapy
at or near this time.

[89]        
On March 6, 2009, Dr. Aitchison wrote to the plaintiff’s counsel and
said:

Ms. McCulloch is following the
treatment program prescribed to her and I think she is benefitting from the
physiotherapy. I think the physiotherapy and the treatment plan we have
outlined is medically necessary for her to regain her functional abilities to
continue with her activities of daily living.

[90]        
The suggestion in this letter was also not true. The plaintiff did not
explain to her doctor that she was not following the advice to take
physiotherapy treatments.

[91]        
Dr. Aitchison confirmed other entries in her records outlying the
recommendations she made and observations she made of the plaintiff.

III.            
Causation and continuing symptoms

[92]        
This case presents a recurring difficulty in the assessment of
post-accident injury claims. In this case the damage to the plaintiff’s vehicle
was confined to a “scratch” costing $310 to repair. There were neither signs of
movement in the plaintiff’s rear bumper nor any structural damage to her
vehicle. The ICBC evaluator was unable to determine the actual point of impact.

[93]        
It is well established law that the defendant need not compensate the
plaintiff for the effects of a pre-existing condition if the plaintiff would
have experienced them regardless of the accident: Athey v. Leonati, [1996]
3 S.C.R. 458 at para. 35.

[94]        
As explained in Pavlovic v. Shields – and – Pavlovic v. Dickson, 2009
BCSC 345 at paras. 55-56:

[55]      The injury is deemed “thin skull” when there is a
pre-existing condition that is not active or symptomatic at the time of the
accident, and that is unlikely to become active but for the accident. If the
injury is proven to be of a thin skull nature, then the defendant is liable for
all the plaintiff’s injuries resulting from the accident.

[56]      A “crumbling skull”
injury is also one where there is a pre-existing condition, but one which is
active or likely to become active regardless of the accident. If the injury is
proven to be of a crumbling skull nature, then the plaintiff is liable only to
the extent that the accident caused an aggravation to the pre-existing
condition.

[95]        
The plaintiff is a young person who, before the auto accident, had
significant degenerative disease in her low back including a disc bulge and
mild facet osteoarthritis.

[96]        
The evidence revealed that in May 2006 the plaintiff was experiencing a
worsening of joint pain in her wrists, low back, elbows, knees and ankles. This
fact was not disclosed or noted by Dr. MacKean prior to the preparation of her
report. Thus, Dr. MacKean formed her opinion, in part, based on a fact that was
proven to be incorrect. Dr. MacKean agreed that the plaintiff’s low back pain
was consistent with osteoarthritis in the facet joints that was not caused by
the collision.

[97]        
The defendant urges me to conclude that the plaintiff did not sustain
any injury to her back due to the collision. She argues that the plaintiff’s
symptoms are an inevitable progression of the inflammatory disease in her facet
joints that were neither caused nor contributed to by the accident.

[98]        
The defendant argues that the medical evidence was largely dependant on
the reports given to the treating doctors and Dr. MacKean after the plaintiff
had engaged a lawyer to assist her. She argues that because those reports were
made at a time when she was not a disinterested party, they should be ignored. Leblanc
v. Ford Credit Canada Ltd 2003 BCSC1267 at para 5.

[99]        
The defendant further argues that Dr. Aitchinson’s clinical records
cannot be admitted as factual support for the plaintiff’s claims given that, at
the time she spoke with her doctor, she had already retained a lawyer to represent
her in this claim. She argues these statement are not admissible to prove the
facts set out in those records because they do not meet the tests set out in s.
42 of the Evidence Act, R.S.B.C. 1996, c. 124:

Admissibility of business records

42 (1) In this section:

"business"
includes every kind of business, profession, occupation, calling, operation or
activity, whether carried on for profit or otherwise;

"document"
includes any device by means of which information is recorded or stored;

"statement"
includes any representation of fact, whether made in words or otherwise.

(2)        In proceedings in which direct oral
evidence of a fact would be admissible, a statement of a fact in a document is
admissible as evidence of the fact if

(a) the document was
made or kept in the usual and ordinary course of business, and

(b) it was in the
usual and ordinary course of the business to record in that document a
statement of the fact at the time it occurred or within a reasonable time after
that.

(3)        Subject to subsection (4), the
circumstances of the making of the statement, including lack of personal
knowledge by the person who made the statement, may be shown to affect the
statement’s weight but not its admissibility.

(4) Nothing in this section makes
admissible as evidence a statement made by a person interested at a time when
proceedings were pending or anticipated involving a dispute as to a fact that
the statement might tend to establish.

(5)        For the purpose of any rule of law
or practice requiring evidence to be corroborated or regulating the manner in
which uncorroborated evidence is to be treated, a statement rendered admissible
by this section must not be treated as corroboration of evidence given by the
maker of the statement.

[Emphasis added.]

[100]    
The decision of the Court of Appeal in Mazur v.
Lucas, 2010 BCCA 473 (CanLII), 2010 BCCA 473 is apposite. This
decision concerned hearsay evidence relied upon by experts in forming opinions.
The Court said:

[40]      From these authorities, I would
summarize the law on this question as to the admissibility of expert reports
containing hearsay evidence as follows:

• An expert witness may rely on a variety of
sources and resources in opining on the question posed to him. These may
include his own intellectual resources, observations or tests, as well as his
review of other experts’ observations and opinions, research and treatises,
information from others – this list is not exhaustive. (See Bryant, The Law
of Evidence in Canada, at 834-835)

• An expert may rely on hearsay. One common
example in a personal injury context would be the observations of a radiologist
contained in an x-ray report. Another physician may consider it unnecessary to
view the actual x-ray himself, preferring to rely on the radiologist’s report.

• The weight the trier of fact ultimately
places on the opinion of the expert may depend on the degree to which the
underlying assumptions have been proven by other admissible evidence. The
weight of the expert opinion may also depend on the reliability of the hearsay,
where that hearsay is not proven by other admissible evidence. Where the
hearsay evidence (such as the opinion of other physicians) is an accepted means
of decision making within that expert’s expertise, the hearsay may have greater
reliability.

• The correct judicial response to the question
of the admissibility of hearsay evidence in an expert opinion is not to
withdraw the evidence from the trier of fact unless, of course, there are some
other factors at play such that it will be prejudicial to one party, but rather
to address the weight of the opinion and the reliability of the hearsay in an
appropriate self-instruction or instruction to a jury.

And:

[35]      Mr. Justice Sopinka concurred with
Wilson J. in the result in Lavallee, but made some clarifying remarks
which are relevant to the present appeal. In his view, the four propositions
from Abbey concerning the admissibility and weight of expert opinion
evidence may yield a result which is self-contradictory (at 898-899):

The combined effect
of numbers 1, 3 and 4 is that an expert opinion relevant in the abstract to a
material issue in a trial but based entirely on unproven hearsay (e.g., from
the mouth of the accused, as in Abbey) is admissible but entitled to no weight whatsoever.
The question that arises is how any evidence can be admissible and yet entitled
to no weight. As one commentator has pointed out, an expert opinion based
entirely on unproven hearsay must, if anything, be inadmissible by reason of
irrelevance, since the facts underlying the expert opinion are the only
connection between the opinion and the case: see Wardle,“R. v. Abbey and
Psychiatric Opinion Evidence: Requiring the Accused to Testify”(1984), 17
Ottawa L. Rev. 116, at pp. 122-23.

[36]      To resolve the contradiction, he drew
a practical distinction between evidence that an expert obtains and acts upon
within the scope of his or her expertise and evidence that an expert obtains
from a party to litigation touching a matter directly in issue (at 899-900):

In the former
instance, an expert arrives at an opinion on the basis of forms of enquiry and
practice that are accepted means of decision within that expertise. A
physician, for example, daily determines questions of immense importance on the
basis of the observations of colleagues, often in the form of second- or
third-hand hearsay. For a court to accord no weight to, or to exclude, this
sort of professional judgment, arrived at in accordance with sound medical
practices, would be to ignore the strong circumstantial guarantees of
trustworthiness that surround it, and would be, in my view, contrary to the
approach this Court has taken to the analysis of hearsay evidence in general,
exemplified in Ares v. Venner, 1970 CanLII 5 (SCC), 1970 CanLII 5 (SCC),
[1970] S.C.R. 608. In R. v. Jordan (1984), 39 C.R. (3d) 50 (B.C.C.A.), a
case concerning an expert’s evaluation of the chemical composition of an
alleged heroin specimen, Anderson J.A. held, and I respectfully agree, that
Abbey does not apply in such circumstances. (See also R. v. Zundel 1987
CanLII 121 (ON CA), 1987 CanLII 121 (ON CA), (1987), 56 C.R. (3d) 1 (Ont.
C.A.), at p. 52, where the court recognized an expert opinion based upon
evidence “… of a general nature which is widely used and acknowledged as
reliable by experts in that field.”)

Where, however, the information upon which
an expert forms his or her opinion comes from the mouth of a party to the
litigation, or from any other source that is inherently suspect, a court ought
to require independent proof of that information. The lack of such proof will,
consistent with Abbey, have a direct effect on the weight to be given to
the opinion, perhaps to the vanishing point. But it must be recognized that it
will only be very rarely that an expert’s opinion is entirely based upon such
information, with no independent proof of any of it. Where an expert’s opinion
is based in part upon suspect information and in part upon either admitted
facts or facts sought to be proved, the matter is purely one of weight.

[Emphasis
added]

[101]     The defendant says that I should closely question the plaintiff’s
reports to her doctors because she had retained counsel early in her recovery
and could have been influenced by the prospects of anticipated litigation. In
the defendant’s view, the plaintiff was not disinterested when providing the
statements: McTavish v. MacGillivray (1997), 38 B.C.L.R. (3d) 306 (S.C.)
at para. 13.

[102]     The defendant argues that the plaintiff’s case depends largely on her credibility
and in particular the exchanges and recommendations dealing with the doctor’s
recommendation that she pursue physiotherapy.

[103]     The defendant argues that I must carefully examine the plaintiff’s
evidence in order to conclude that her injuries were the result of such a minor
impact with so little damage.

[104]     Alternatively,
she argues that any accident related injury fully resolved shortly after the
incident.

[105]     The fact that there was no limit to her range of motion after the
accident and in circumstances when a restricted range of motion would be
expected within 72 hours is significant. Ms. McCulloch’s pattern of symptoms is
inconsistent with that expectation; she had full range of motion by May 13,
2008.

[106]     I accept
Dr. Coghlan’s opinion coupled with that of Dr. MacKean that if the plaintiff
had sustained a significant injury to her back at the time of the accident she
would have presented with more severe acute pain, limited range of motion and
spasms in the back when she presented to her doctor five days after the
accident. These symptoms were not observed by Dr. Aitchison.

[107]     Dr.
MacKean reiterated the importance of active rehabilitation in dealing with pain
symptoms from an injury. She said that it is the most important aspect of the
recovery process and that active rehabilitation needed to extend for four to
six months.

[108]     It is
clear from the evidence that the plaintiff did not pursue the recommendations
for physiotherapy suggested by her doctor. The evidence reveals that Ms.
McCulloch attended one physiotherapy treatment on July 16, 2008, and one
treatment on August 8, 2008. The plaintiff said the physiotherapy made her feel
worse. She was told that she would require six to eight visits and possibly
more to achieve a better outcome. After August 2008 she did not return to
physiotherapy. She did not recall her doctor telling her that physiotherapy was
a most important element in her treatment. This advice was confirmed by Dr. Aitchison.

[109]     She did
not recall the discussion with her family doctor on August 27 saying she was
pursuing physiotherapy. It is clear that her family doctor told her that
ongoing physiotherapy was important to achieving improvement.

[110]     She said
that she spoke to her doctor on many occasions about physiotherapy aggravating
her symptoms but could not recall telling the doctor she was seeking
physiotherapy.

[111]     She does
not recall asking her family doctor in February 2009 for a referral to
physiotherapy.

[112]     She does
not recall telling her family doctor that physiotherapy and massage therapy
were helpful to her. In any event, she did not attend a physiotherapy treatment
after obtaining the referral in February 2009.

[113]     She could
not recall the letter written to her lawyer in March 2009 recommending
physiotherapy as a necessary part of her treatment of the injuries. She did not
recall telling her doctor in February 2009 that she was finding physiotherapy
and massage therapy helpful. She did not recall telling her doctor she was
going to physiotherapy and that it was helping.

[114]     The
plaintiff recalled receiving a referral to Ms. Johns. She did not go to
Ms. Johns because physiotherapy aggravated her symptoms. This assertion is
not consistent with her reports to her doctor and the fact that she had not
been to physiotherapy since August 2008.

[115]     The
plaintiff did not recall a meeting with her family doctor in September 2009 at which
time she asked for a referral to a different physiotherapist. She received a
referral at that time.

[116]     Dr.
MacKean and Dr. Aitchison were unchallenged in their evidence that the
plaintiff would have benefited from physiotherapy treatments. Dr. MacKean’s
opinion was that 100% of patients with soft tissue injuries benefit from
physiotherapy through reduced pain and increased functional ability.

[117]     I agree
with the plaintiff’s position that the fact that an accident involves low velocity
forces and minimal damage does not lead to the conclusion that no significant
injury could be sustained: Lubick v. Mei and another, 2008 BCSC 555 at
para. 5 and Dao v. Vance, 2008 BCSC 1092 at paras. 18 – 21.

[118]     I accept
that the plaintiff suffered a grade one whiplash injury affecting her cervical
spine and upper back as a result of the accident. I also accept that the
plaintiff suffered some soft tissue injury to her lower back and sacroiliac
region superimposed on an osteoarthritic low back. However, the modest impact
of the accident on her back is quite separate from the long standing complaints
she has relating to her back. In my view, those symptoms result from the
pre-existing changes in her back and would likely have developed if the
accident had not intervened.

[119]     The
plaintiff seeks non-pecuniary damages of $50,000, arguing that the applicable
range in this case is $40,000 – $60,000. She also seeks compensation for the
impairment to her earning capacity at $30,000 to $40,000 and special damages.

IV.           
Non-pecuniary DAMAGES

[120]     Non-pecuniary
damages are intended to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation awarded should be
fair to all parties and depends on the particular circumstances of each person
and the impact the accident related injuries has on that plaintiff. Prior
decisions of this Court can be helpful in assessing Ms. McCulloch’s claim. Other cases may be helpful, but serve only as a rough guide. Each case
depends on its own unique facts: Trites v. Penner, 2010 BCSC 882
at paras. 188-189.

[121]    
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should
not, generally speaking, penalize the plaintiff: Giang v. Clayton, 2005
BCCA 54).

[122]     The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with one’s injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[123]    
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) by McEachern C.J. In referring to Butler v. Blaylock, [1981]
B.C.J. No. 31 (S.C.) he said at 399:

I referred to counsel’s argument that a defendant is often at
the mercy of a plaintiff in actions for damages for personal injuries because
complaints of pain cannot easily be disproved. I then said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

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

A.             
Plaintiff’s position

[124]     On the day
of the accident the plaintiff complained of stiffness in her neck and shoulders
and when seen by her family doctor she had begun experiencing low back pain.
She attended physiotherapy and massage. She was seen by Drs. Etheridge,
Cleveland and Aitchison. The plaintiff argues that she suffers neck and back
pain as a result of the accident four years ago and will continue to suffer in
these areas. She was asymptomatic at the time of the accident and her only
previous history of back pain in 2006 was not symptomatic in the time
immediately before the accident.

[125]     The
injuries to her low back and neck have affected her activities including
walking, lifting, carrying heavy items, picking up children, bike riding, and
water sports. She is no longer able to pursue a career as a nail technician and
will be limited in her ability to obtain employment with equivalent income
prospects.

[126]     The
claimant argues that non-pecuniary damages fall within the range of $40,000 to
$60,000 and that the appropriate amount to award in this case is $50,000. The plaintiff
refers to Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053 in
which the plaintiff was awarded $40,000 in non-pecuniary damages. In that case
the plaintiff complained of a stiff neck and low back pain. The low back pain
restricted most aspects of the plaintiff’s life for about one year and caused some
disabling effects for about five months of that year. The plaintiff had
residual symptoms three years after the accident and was expected to continue
with those symptoms for months to come. In Brock v. King, 2009 BCSC 1179,
Punnett J. considered injuries that continued more than three years after the
accident and involved back pain, neck pain and headaches. The injuries
interfered with the plaintiff’s work and her daily activities. Further
improvements could be expected but the plaintiff was left with some ongoing
chronic pain. The Court awarded $40,000 non-pecuniary damages.

[127]     In Lehtonen
v. Johnston, 2009 BCSC 1364, Baker J. assessed non-pecuniary damages of
$40,000 for a plaintiff who had sustained a mild soft tissue injury to her neck
and upper back and mild soft tissue injuries to her low back. In that case the
plaintiff’s neck and upper back pain resolved within six weeks but the lower
back symptoms persisted for approximately one year. The Court accepted that the
plaintiff continue to have subjective symptoms but concluded that her experience
more than one year after the accident was not caused by the mild injuries
suffered in the accident.

[128]     In Tarzwell
v. Ewashina, 2011 BCSC 1464, the plaintiff experienced headaches, back
discomfort and neck pain. The plaintiff had little relief from her symptoms and
her pain was managed and controlled but not likely to resolve fully. Dley J.
awarded non-pecuniary damages of $60,000.

[129]     In Bartel
v. Milliken, 2012 BCSC 563, Gerow J. awarded non-pecuniary damages of
$35,000 to a plaintiff who suffered injuries to her neck, back, shoulder and
sacroiliac joint. Although the plaintiff was continuing to have pain in those
areas dependent on her activity, the Court concluded that her accident related
symptoms resolved within seven months following which she had occasional
flare-ups and some ongoing restrictions in activity. The plaintiff was 51 years
of age and the damage to her vehicle was approximately $400.

[130]     In Stein
v. Kline, 2012 BCSC 573, Bracken J. awarded $40,000 stemming from the
plaintiff’s injuries to the right side of his back, neck and shoulders. Four
years after the accident the plaintiff continued to have occasional flare-ups
in his symptoms that may have required physiotherapy or massage therapy
treatments. It was likely that the plaintiff would have ongoing muscle
tenderness and occasional flare-ups in the future.

B.             
Defendant’s position

[131]     The
defendant argues that the plaintiff’s objective symptoms are inconsistent with the
symptoms she alleges to be ongoing and resulting from the accident.

[132]     The
defendant suggests that the severity of the collision is a factor to be
considered in assessing non-pecuniary damages: Bittante v. Zichy, 2008
BCSC 728 at para. 137; Yeh v. Ford Credit Canada Ltd. (1996), 25
B.C.L.R. (3d) 318 (S.C.) at paras. 6-7; Sinclair v. Norman and ICBC, (8
July 1996), Vancouver 93-8907 (B.C.P.C.).

[133]     The
defendant relies on Milanovic v. Bokenfohr, 2003 BCPC 316 in which the
plaintiff recovered $1,000 for non-pecuniary damages. That case involved a
collision resulting in very modest damage. The Court concluded that there was
no objective medical evidence to verify the existence of the claimant’s
injuries. The Court accepted that the plaintiff had some discomfort to his neck
and experienced headaches as a result of the accident. The effects of these
injuries did not persist more than six months after the accident.

[134]     In Mokanasingham
v. ICBC et al, 2009 BCPC 251, Dillon J. allowed non-pecuniary damages of
$1,000 for upper neck and back injuries that lasted for approximately five
months.

[135]     In Vuong
v. Wong et al, 2007 BCPC 172, the Court awarded non-pecuniary damages of
$2,000 as a result of injuries suffered in an accident in which the cost of the
repairs to the plaintiff’s car was $1,804.

[136]     In Seto
v. Ng and Kung, 2009 BCPC 218, the Court awarded $2,500 for non-pecuniary
damages relating to a motor vehicle collision. The claimant’s vehicle sustained
$442 in damages and he had fully recovered from his injuries four months after
the accident.

[137]     The
defendant argues that if the plaintiff’s ongoing complaints are due to the
injuries suffered in the accident, then her multi-level facet arthritis is the
source of her complaints and her entitlement to non-pecuniary damages is
modest. The defendant refers to Bray v. Gaete, 2004 BCSC 335. In that
decision Quijano J. considered injuries suffered in a low impact collision in
which the cost of repairs to the defendant’s vehicle was $2,611. The Court
considered the plaintiff had suffered headaches and low back pain that
compromised her ability to lift and twist. The Court described this as a minor
soft tissue injury to her neck and shoulders and a moderate soft tissue injury
to her low back which continued to be symptomatic. The Court assessed
non-pecuniary damages at $20,000.

C.             
Decision

[138]     The plaintiff’s
injury affecting her cervical spine and upper back were grade one injuries. Dr.
MacKean concluded the plaintiff will have ongoing chronic pain, involving her
neck and upper back. Although the impact of the collision appears minimal, the
evidence has satisfied me that her cervical and upper back complaints are
attributable to the defendant’s negligence.

[139]     Dr.
MacKean described the plaintiff’s low back and sacroiliac joint injuries as grade
two soft tissue injuries. He concluded that this injury was sustained in the
accident and the effects are ongoing.

[140]     I accept
that the collision caused some disruption to the plaintiff’s lower back based
on her earliest record of pain and stiffness in her low back. However, the
reduction in the plaintiff’s range of movement was delayed until late August
2008.

[141]     I do not
accept Dr. MacKean’s opinion that Ms. McCulloch’s longer term symptoms in her low
back were caused by the forces of the collision on May 8, 2008. Dr. MacKean’s
opinion was based on a flawed understanding of the plaintiff’s medical history.
I accept Dr. Coghlan’s opinion that if the plaintiff had sustained a
significant injury at the time of the accident she would have presented with
more severe acute lower back pain when she saw her doctor five days later.

[142]     I am
concerned that much of what is reported in the doctor’s notes does not reflect
the report of a disinterested person. She had retained a lawyer by July 2008
and was likely influenced by the impending legal process in her discussions
with her physicians. I do not accept that the plaintiff was, in any way,
deliberating misleading her doctors, but she was not disinterested in her
reports after that time.

[143]     This
coupled with the very minor nature of the damages to the vehicle which she did
not accept (in spite of her formal admissions) leads me to conclude that
Ms. McCulloch’s reports of ongoing symptoms she attributes to the accident
are not entirely reliable.

[144]     Although
it is possible that the accident triggered symptoms from the asymptomatic
osteoarthritis in her low back, the evidence satisfies me, on the balance of
probabilities, that she would have had low back symptoms sometime in the future
but for the accident. It is difficult to estimate the duration of the
plaintiffs low back symptoms caused by the accident but I am satisfied that
they should have been resolved by the time of the trial. Considering the
factors set out in Stapley and the cases cited by counsel, I award the
plaintiff non-pecuniary damages of $25,000.

V.             
Loss of Income Earning Capacity

[145]     The plaintiff
argues that I should award between $30,000 and $40,000 to compensate the
plaintiff for her loss of income earning capacity.

[146]     She argues
that after completing her nail technician’s course she was able to earn between
$17,850 and $24,000.

[147]     The
plaintiff argues that her prospects as a nail technician are likely ended and
she will be unable to achieve the economic success that was possible before the
accident.

[148]     Working as
a nail technician requires sitting for two hours at a time, bending, and lifting.
The plaintiff is unable to endure the physical discomforts arising from her
injuries when performing those duties.

[149]     The
plaintiff relies on Pallos v. Insurance Company of British Columbia
(1995), 100 B.C.L.R. (2d) 260 (C.A.) at para. 24 and Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.) arguing that she:

a.     has
been rendered less capable overall from earning income from all types of
employment;

b.      is
less attractive or marketable as an employee to potential employers;

c.     has
lost the ability to take advantage of her old job opportunities that might
otherwise have been open to her but for the injury; and,

d.     is
less valuable as a person capable of earning income.

[150]     The
defendant argues the plaintiff did not establish that she will suffer loss of
income in the future and no order should be made under this head of damage.

[151]    
The defendant says that there is no medical evidence to support a claim
that the plaintiff is unable to perform any type of work. The burden is on the
plaintiff to establish that her injuries have created a substantial possibility
that in the future she will be unable to her income. Mere speculation is
insufficient to justify an award. In Perren v Lalari, 2010 BCCA 140, the
Court said at para. 32:

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

[Emphasis in original]

[152]     When the
plaintiff was training as a nail technician, she was engaged in working five
hours per day for five months. The plaintiff applied for and obtained
employment as a nail technician but declined the job because of the expenses
required for children’s day care.

[153]     Ms. Peacock
commented that new nail technicians often have some difficulty in performing the
body positions necessary to conduct their duties. This feature of the job would
be the same for everyone.

[154]     Dr.
MacKean did not suggest the plaintiff was restricted or limited in the type of
work she was physically capable of performing. There was no functional capacity
evidence and Dr. Coghlan concluded that she is not functionally disabled from
regular housework or family responsibilities.

[155]     The
plaintiff’s health since the accident has obviously deteriorated in regard to
her physical endurance and related discomfort. I am unable to find that the evidence
establishes on balance that the ongoing effects of the accident will interfere
with the plaintiff’s income earning capacity. Second, there is insufficient
evidence of a substantial possibility that Ms. McCulloch will suffer a loss of
income due to the injuries caused in the car accident.

[156]     The
plaintiff has not established that the injuries from this accident have permanently
rendered her less capable overall from earning income from all types of
employment or made her less attractive or marketable as an employee to
potential employers. Additionally she has not proven that her ability to take
advantage of all other job opportunities that might otherwise have been open to
her but for the injury, have been foreclosed to her over the long term. She is
not less valuable as a person capable of earning income over the long term.

[157]     I do not accept
that the injury cause by the accident has resulted in disruption in her income
earning prospects.

VI.           
Future Care costs

[158]     The sum of
$3,000 is necessary to gain the services recommended by Dr. MacKean. She
argues that the services of a kinesiologist will require between $1,000 and $2,400
plus the cost of aquatic therapy. In total she says $3,000 will be sufficient
in the future care costs.

[159]     I accept
the evidence that the plaintiff suffers from some chronic neck and upper back
pain caused by the accident. Although these areas of discomfort do not appear
to be the most significant of the plaintiff’s complaints, I accept Dr.
MacKean’s recommendation that the plaintiff should pursue active rehabilitation
working with a physiotherapist or kinesiologist. I award the plaintiff $2,500
to compensate for treatments that will address these areas of ongoing
complaint.

VII.          
SPECIAL Damages

[160]     The
claimant seeks compensation of $1,165.40 for physiotherapy treatments. In
addition she seeks recovery for 402.4 kilometres driven at $.50/km to these
treatments. The defendant says she should be paid $.30/km. The defendant argues
that the number of physiotherapy treatments was excessive and that if the
plaintiff had undertaken the recommended physiotherapy earlier in her recovery,
the massage therapy costs would have been much reduced.

[161]     In the
circumstances, I do not accept that the plaintiff’s pursuit of massage therapy
treatments was unreasonable or excessive. There was no evidence to support the
suggestion that the number of massage treatments could have been reduced if the
plaintiff had received other therapies. I accept plaintiff’s claim in the sum
of $1,165 as well as $201.20 in driving costs.

VIII.        
Failure to Mitigate

[162]     The
defendant argues that the plaintiff failed to mitigate her losses in refusing
to follow the advice to take physiotherapy treatments. A plaintiff has an
obligation to take all reasonable measures to reduce his or her damages,
including undergoing treatment to alleviate or cure injuries: Danicek v.
Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234.

[163]     The burden
of proof to establish that Ms. McCulloch could have mitigated her loss rests
with the defendant: Janiak v. Ippolito, [1985] S.C.R. 146
at 163.

[164]    
In Antoniali v. Massey, 2008 BCSC 1085 at para. 31, Preston J.
outlined what a defendant must establish to demonstrate a plaintiff’s failure
to participate in rehabilitative therapy in order mitigate his or her injuries:

1.         that
a program of stretching and conditioning under the guidance of a personal
trainer would have reduced or eliminated the effect of the injuries;

2.         that
the reasonable plaintiff in Ms. Antoniali’s circumstances would have followed
such a program;

3.         that
Ms. Antoniali unreasonably failed to follow such a program and;

4.         the extent to
which Ms. Antoniali’s damages would have been reduced if she had followed such a
program.

[165]     Once the
plaintiff has proved the defendant’s liability for his or her injuries, the
defendant must prove that the plaintiff acted unreasonably and that reasonable
conduct would have reduced or eliminated the loss. Whether the plaintiff acted
reasonably is a factual question and it involves a consideration of all of the
circumstances: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202.

[166]     The
plaintiff referred to Meyers v. Leng, 2006 BCSC 1582 in which
Gropper J. concluded that it was reasonable for the claimant to eschew
physiotherapy because it had not been helpful and made her feel worse. In the
circumstances of this case, I do not accept the plaintiff acted reasonably in
refusing to follow the doctor’s advice. Her own evidence on this point was unconvincing
and contrary to her stated perceptions of physiotherapy later on.

[167]     The
plaintiff also relied on Robbie v. King, 2003 BCSC 1553 to highlight the
type of circumstance where this Court has declined to find a failure to
mitigate. In Robbie the Court said the duty to mitigate was to be
considered in the context of what is realistic and reasonable for the
individual. In this case, Ms. McCulloch’s explanation for refusing
physiotherapy treatments after attending only two appointments was not reasonable
or realistic. In view of the purported debilitating effects of her injuries and
the repeated discussions she had with her doctor about physiotherapy, she
failed to take the most reasonable and practical steps to deal with her
condition.

[168]     I accept
that physiotherapy was not a service that could be expected to induce total healing
or eliminate the root causes of the plaintiff’s physical complaints, but I am
satisfied that the defendant has proven that physiotherapy would have ameliorated
the plaintiff’s symptoms and accelerated her recovery. This service was
medically necessary to improve her functioning and facilitate a return to
activities of daily living. The plaintiff was informed that physiotherapy would
be beneficial in the recovery process and she unreasonably declined or failed
to pursue treatment.

[169]     I am also
satisfied that the plaintiff was not forthright with her doctor about her participation
with physiotherapy and I am satisfied that this added to her failure to
mitigate her losses. The plaintiff’s life would have been much improved if she
had followed the doctor’s advice.

[170]     The
defendant seeks a reduction in the plaintiff’s damages of 50% due to this
failure to mitigate. The plaintiff argues that if she is found to have failed
to mitigate then the appropriate reduction should be in the order of 10%: Ponipal
v. McDonagh 2009 BCSC 461 at paras. 28 – 29.

[171]     It is
difficult to assess the measure of improvement Ms. McCulloch might have
experienced if she had followed her doctor’s advice. In Antoniali, the Court
reduced pre-trial non-pecuniary damages by 15% and post-trial non-pecuniary damages
by 50%.

[172]     In this
case, I have concluded that the plaintiff’s failure to mitigate likely
prolonged her symptoms and deprived her of the higher level of function over an
extended period. I have decided that Ms. McCulloch’s failure to mitigate should
reduce her non-pecuniary damages by 10%.

IX.           
Summary

The plaintiff will recover:

Non-Pecuniary Damages                                         $22,500

Special Damages                                                        1,366

Cost for Future Care                                                   2,500

TOTAL                                                                   $26,366

[173]    
The plaintiff is entitled to costs subject to any submissions the
parties may wish to make.

“Armstrong J.”