IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130924

Docket: M-105145

Registry:
Vancouver

Between:

Sherrie Campbell

Plaintiff

And

Cathy Van Den
Broek

Defendant

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
The plaintiff is a 61 year old woman who lives at 101- 5374 203rd Street
in Langley, British Columbia.

[2]            
On July 16, 2010, the plaintiff was injured in a motor vehicle accident
caused by the defendant. Liability is admitted but the defendant does not admit
damages.

[3]            
The accident occurred at the intersection of Robertson Crescent and 248^th
Street, in Langley, B.C. The defendant’s motor vehicle entered the intersection
against a stop sign and collided with a vehicle operated by the plaintiff. The
plaintiff’s vehicle was driven off the road and into an adjacent field. Both
vehicles were severely damaged.

[4]            
The plaintiff claims injuries to her jaw and ear, to her neck, back and
hips, to her knees, feet, ribs and breast and bruising to her lower abdomen.
Photographs taken shortly after the accident show massive bruising above the
plaintiff’s right breast, her abdomen, her left knee and her left foot.

[5]            
The plaintiff also claims to have suffered a concussion with resulting
cognitive deficits and psychological injuries including anxiety and depression.

[6]            
The plaintiff seeks, in addition to general damages, damages for lost
income and loss of opportunity to earn income and impairment of her future
earning capacity.

II

[7]            
The plaintiff gave extensive evidence of her past history and
circumstances. She was born in Oliver, B.C. on August 17, 1952. The family
moved about a bit. The last school the plaintiff attended was Alpha in Burnaby.
She completed grade 7. In the aftermath of a family break up she says she left
school to look after her younger brother.

[8]            
The plaintiff gave birth to a daughter on March 18, 1969 and was forced
to give the child up for adoption. This led to a mental breakdown and shock
therapy. The plaintiff says she fled the hospital after one episode of that
treatment.

[9]            
The plaintiff says she entered the work force when she was 12 or 13
peeling potatoes at a restaurant for 50¢
a sack. She worked at restaurants both before and after the birth of her
daughter. She worked thereafter for a furniture manufacturer and at Western
Wire in Burnaby.

[10]        
The plaintiff then went to work for her mother in a mobile catering
business for about one year. She then went to another mobile catering business
and worked there for about 3 years. She then bought her own catering truck and
operated a business in partnership with a man named Bob Reid for about 8 years.
She married Mr. Reid and the business dissolved when the marriage ended. The
plaintiff took one truck out of that business and started her own catering
business, in about 1980 when she was 28 years old.

[11]        
The plaintiff operated her business for a year then moved to Nelson for
a year before coming back and buying her mother’s business in 1983 or 84. She
married Michael Campbell in 1987 and had a business for 5 years until they sold
it in 1992. That year the plaintiff and her husband adopted a little girl,
Danielle. In 1994 they adopted a son Nicholas. After the children came into
their lives the plaintiff stayed home to take care of them.

[12]        
In about 1998 the plaintiff helped a friend set up a restaurant, making
all the food for about 4 months. This was gratuitous. It was also the
plaintiff’s last connection with the food business.

[13]        
Around 2002, the plaintiff got interested in Financial Services,
specifically with going to work for Primerica Financial Services, selling RRSP’s,
RESP’s and Life Insurance. She liked the business very much, particularly the
flexible hours, and the personal contact with clients. She worked part time and
studied for exams that were necessary to become licensed as an insurance and
mutual funds salesperson.

[14]        
In 2003 or 2004 the plaintiff began working without a trainer. She was
busy making calls and attending various functions where she could introduce her
products to people. In 2005 her progress was interrupted by a medical problem
which left her blind for 3 months. The plaintiff lost her license and had to
rewrite her exams to get it back.

[15]        
The flexible hours worked well for the plaintiff. She said she worked in
the evenings after her husband had gone to bed. He worked throughout the
marriage with Howard Centre Leasing and would be out the door at 5 or 5:30 a.m.

[16]        
The plaintiff’s long range plan was to work for Primerica full time when
her son graduated (the year she turned 60).

[17]        
The plaintiff had a number of medical issues before the accident
including some shoulder and hip pain and trouble sleeping. She had some
problems with her arms since about 1989.

[18]        
The plaintiff was always interested in horses and presently has one,
“Misty”. During her marriage to Mr. Campbell, the plaintiff lived on an acreage
in Langley and later on one in Aldergrove suitable for horses. It was sold when
the plaintiff and Mr. Campbell divorced in 2012. She now lives in an apartment
in Langley. The plaintiff now boards the horse. She has not been riding for 5
years.

[19]        
Both of the children had particular difficulties which required the
attention of doctors and counsellors. The plaintiff and her husband went to
several family therapy sessions until Mr. Campbell said he did not want to go
any more.

[20]        
There was tension in the house in the latter years of the marriage. One
issue was the plaintiff’s mother, who lived with the plaintiff and her husband.
By about 3 or 4 years before the marriage ended things settled into a pattern
where they had stopped doing things together.

III

[21]        
Following the accident the plaintiff was driven to Langley Memorial
Hospital. She rode in the front seat while the defendant rode in the back. At
the hospital the plaintiff says she waited 4 or 5 hours to see a doctor, by
which time she was in pain throughout her body, although it was worse on the
left side than the right. The plaintiff slept through the weekend following the
accident, but the pain got worse. She saw a doctor on the Monday.

[22]        
The plaintiff then saw a number of doctors and had a number of tests and
images taken. She continued, after these interventions to have pain throughout
her body. She found she was very anxious when she drove and that she had become
forgetful. She kept a calendar detailing her condition over the next two and a
half years up until the trial.

[23]        
The plaintiff said that in 1988 she had an operation on her feet which
healed without any trouble. After the accident the plaintiff could not walk on
her left foot. She was advised to get an “air boot” for it. She did at a cost
of about $125. She wore it for 6 weeks. Both feet eventually got better,
although she still experiences occasional burning in both of them.

[24]        
The general bruising and battering the plaintiff took to her chest,
ribs, abdomen and right breast, neck and knees made it hard to carry out
ordinary functions. The plaintiff found it hard to drive or to lift or push
anything. She had to get housekeeping assistance, although it had tapered off
to about 2 hours every 2 weeks by the time of trial.

[25]        
The plaintiff says she had a really bad ache in the side of her head and
sharp pains in the left side of her jaw in the immediate aftermath of the
accident. She had never had jaw problems before the accident.

[26]        
The plaintiff attended Aldergrove Physiotherapy about 10 times between
October 4 and November 10, 2010. She found this to be no help. It was then
suggested she go to a Larry Klyne for physio. She went 2 times a week and later
once a week for about 6 months with some relief. The plaintiff also had a
course of acupuncture treatment for her jaw from Mr. Klyne. She says she only
got temporary relief from these treatments.

[27]        
The plaintiff took treatments for her jaw from Maria Zerjau which
resulted in some improvement.

[28]        
The plaintiff says that she felt a fullness in her head immediately
after the accident and that she had noise in her head (tinnitus) from a time shortly
afterwards. She says it went away at one point and returned. She thinks there
has been improvement. She finds this annoying and distracting. She has noticed
balance problems since shortly after the accident. She says she has
occasionally fallen. These problems have improved somewhat over time. She saw
two therapists, Marion Priest and latterly Val Reynolds. There was a gap in
time between November of 2011 and July of 2012 when the plaintiff did not get
treatment for the vestibular problems.

[29]        
The plaintiff has had treatment to her knees. She has had cortisone
shots and was using a brace that cost $1,235. She feels her knees are getting
worse and impair her mobility.

[30]        
The plaintiff does not remember the impact at the accident scene. Her
first recollection is of coming back to consciousness at the scene. She feels
she is more forgetful as a result of the accident. She now has a constant
earache. She feels that she has difficulty getting organized since the
accident. She finds it difficult to pay attention to things, even long enough
to read a book or watch TV.

[31]        
The plaintiff says that, in her present condition she does not want to
see people, and that she has become withdrawn. She says she had nightmares
every night for 3 months after the accident. She says driving has caused
anxiety attacks, although they also come on spontaneously. The plaintiff says
she has learned to breathe deeply and that this sometimes alleviates them.

[32]        
The plaintiff says she can no longer do the work she was doing at
Primerica. Her earnings have dropped to about $80 per month. She thought she
might earn about $10,000 per month at Primerica had she gone into it full time
when she had planned to. She does not know what she can do for employment now.

[33]        
In cross examination the plaintiff acknowledged a more detailed account
of the abuse she suffered at the hands of her stepfather, the trauma surrounding
giving up her child and the shock therapy that was administered. She
acknowledged that parts of her memory were affected by the treatment.

[34]        
She went through her three marriages and acknowledges that her first
husband had shot her in the hand. She said the bullet remains there to this
day. She had physio treatments as a result.

[35]        
The plaintiff acknowledged that she had a difficult early menopause that
coincided with the early years of her daughter and that she and Mr. Campbell
had serious difficulties in their relationship once they had Nicholas. She was
treated in the early 1990’s by a psychiatrist for her menopause and anger
management issues.

[36]        
The plaintiff acknowledged neck problems and shoulder pain in 1998 and
that the shoulder problems began about 10 years before that.

[37]        
The plaintiff acknowledged shoulder problems in 2003 when she started
with Primerica.

[38]        
The plaintiff’s extensive past medical history was canvassed with her.
She does not substantively deny any of the records, and I think it best to deal
with these issues by reference to them.

[39]        
The plaintiff acknowledged that she has been driving since October 1,
2010 and that she has not taken pain medication for the two years before trial
for accident related injuries. She acknowledged that she has been encouraged to
return to work but has not done so.

IV

[40]        
The plaintiff called an old friend Belinda Burns to testify as to her
observations of the plaintiff before and after the accident. She described an
active social relationship the plaintiff and Mr. Campbell and others before
their children started going to different schools and they didn’t see each
other as much. She said her husband stopped drinking and that affected the
amount of time they spent together because her husband and Mr. Campbell would
drink together. She described the plaintiff’s active interest in horses and
said they enjoyed going to Vancouver Canucks games together.

[41]        
Ms. Burns learned of the accident on Danielle’s facebook page. She
called the plaintiff to see how she was doing. She found her unresponsive and
remote. When she saw her just before Christmas 2012, the encounter was brief
and the plaintiff was walking with a limp. She says that before the accident
the plaintiff was funny and talkative but that now she seems blank and loses
her train of thought.

[42]        
Ashley Singh, is a 28 year old acquaintance who met the plaintiff in
2004. The plaintiff helped her out setting up a coffee shop. She found the
plaintiff’s help invaluable. She also got involved in Primerica through the
plaintiff, who trained her. During that time she spent a lot of time with the
plaintiff. Ms. Singh says that she has noticed a huge change in the plaintiff
since the accident. She is slow. She has trouble going up stairs or getting
into a car. She says the plaintiff is hard to converse with because she has
become forgetful and tells the same stories over and over.

[43]        
Ms. Singh has provided cleaning services for the plaintiff that were
paid for by ICBC.

[44]        
Mr. Campbell testified that he is an account manager for the Carter Auto
Family and was married to the plaintiff. He said they separated on July 16,
2011, when he left the family home. He said the parties had developed separate
lives before the accident. He would go to work early, come home, make dinner
for the children and go to bed, while the plaintiff would be up later. He said
the atmosphere at home was uncomfortable. The plaintiff spent considerable time
in the basement with her mother.

[45]        
He said the plaintiff did not ride horses much after 2004 and that she
had developed complaints in her hips, shoulders and neck by then. He said the
plaintiff had trouble with stairs before the accident. He said their lives were
separate before the accident but that he postponed leaving for more than a year
because of it. He said the plaintiff’s knees were sometimes sore before the
accident.

[46]        
Mr. Campbell said that the plaintiff was excited about the Primerica
business and that she planned to do it full time after the children were out of
school. He said it was a “cutthroat” business and that it involved a lot of
rejection.

[47]        
Mr. Campbell thought the plaintiff had started to lose interest due to
the rejections.

[48]        
After the accident he noticed that the plaintiff’s balance was poorer as
was her memory. He said she was overwhelmed with all the medical attention and
sometimes cancelled appointments because she was sick of it. He acknowledged
that she was enterprising in the past.

V

[49]        
The plaintiff’s past medical record has been thoroughly canvassed by the
defence to show that the plaintiff suffered from an array of pre-accident
conditions which impact the assessment the court must make respecting the
effect of the July 16, 2010 accident on her life and employment prospects.

[50]        
The plaintiff’s dentist, Dr. Agnes Chan gave the following brief account
of the plaintiff’s pre and post-accident attendances:

Aug. 13, 2005: Mrs. Campbell complained of a dull ache
in her upper left face and sinus area. It was worse in the evening when tired
and her teeth were also sensitive to hot and cold. #27 was sensitive to
palpation in the root tip and muscle areas.

Aug. 4, 2009: Patient woke up the previous morning and
had a toothache in #28 area. It travelled to the upper left jaw, to the front
teeth, to the lower left and down to the ear. She reported of having sinus
problems and ear aches for about a month. She could not chew around #28 area.
#27 was very sensitive to percussion and #25 had some sensitivity. She was
having spontaneous dull aches in the upper left area and #27 showed radiolucencies
in the apical and furcation areas, indicative of pulpitis, clenching, and
periodontal problems. Root canal treatment and a nightguard were prescribed.

Jul. 14, 2010: Patient came in for a routine recall
exam, no TMJ problems were mentioned and jaw opening was normal.

Jan. 29, 2011: Patient reported her left face and head
was hit in MVA Jul. 16, 2010. Her left temporalis, left masseter and left TMJ
were very tender on palpation. She could not open her mouth to normal range
without hurting. Her left TMJ was tender when she moved her jaw from left to
right. She could not chew on her left side.

Mar. 2, 2012: Patient presented with jaw locking
problems and could not even chew on her right side. TMJ and masticulatory
muscles were tender to palpation, especially on the left side and she could
barely open her mouth.

Oct. 12, 2012: Patient came in for recall exam. She
reported that her TMJ clicked and locked once in a while. She had earaches on
the left, and her left TMJ had pain when she moved her jaw side to side. Her
left masticulatory muscles were tender on palpation and she could only open her
mouth to approximately 18mm without hurting.

Therefore, based on observations from my clinical notes,
it is my opinion that before the car accident on July 16, 2010, Mrs. Campbell
had periodic myofacial pain of her masticulatory muscles mainly due to
clenching. When she came in for her recall exam two days before the accident,
no problems with her TMJ were reported and her jaw opening was normal. Her car
accident on July 16, 2010 had aggravated her chewing musculature problems,
caused her to have chronic TMJ pain, limited opening of her mouth, occasional
locking of her jaw, and pain on chewing food.

[Emphasis added.]

[51]        
The plaintiff had a history of neck, arm and shoulder pain. There are
documented complaints of “upper extremity symptoms” going back 10 years in a November
19, 2007, note in the plaintiff’s clinical records. This was described at the
time as rendering the plaintiff unable to do housework. The note was from an
orthopaedic consultant, the plaintiff’s family physician. His pre-accident notes
are replete with references to neck and shoulder pain, difficulty lifting her
arms, some low back aching, grip weakness, depression, a burning sensation in
her back, back spasms and pain in the face, ear and jaw. There are suggestions
that these things interfered significantly with the plaintiff’s activities and
her ability to drive. On June 24, 2010, just before the accident, Dr. Robson
summed up the plaintiff’s situation as follows:

Feels her life is in shambles.
She has a dtr w conduct disorder, son w ADD, husb is alcoholic & they gen
avoid each other. They’ve been to counselling w a counsellor named Fred West
but she doesn’t see this as being helpful. She conts to smoke & yet has sev
resp infs/yr on top of her COPD, the most recent in Apr. She’s been on
Wellbutrin prev & this gave her hives. She was given Champix script &
prob should try this before embarking on her next anti-depressant which will be
Effexor. Encouraged to connect w Langley Mental Hlth as this will be an ongoing
prob.

[52]        
There is a past history of hip pain, knee pain and respiratory problems.
Insomnia, anxiety and depression also feature in her records.

[53]        
The plaintiff’s complaints respecting tinnitus, hearing loss and
dizziness or loss of balance appear to be new.

[54]        
The plaintiff’s knee problems appear to relate to the accident, although
Mr. Campbell testified that she had problems with her knees before. The doctors
opine at some length about the degree to which the accident may have
accelerated the plaintiff’s degenerative condition.

[55]        
The plaintiff’s cognitive difficulties and memory problems are also
extensively dealt with in the medical reports.

VI

[56]        
Dr. Anthony Ciavarella saw the plaintiff shortly after the accident, on
July 19, 2012, and periodically until October 18, 2012. He prepared a report on
October 25, 2012. He described the plaintiff’s injuries and prognosis in the
following, rather unusual format:

A.A.1.  Blunt
trauma to the left side of the head and jaw.

This
injury has caused medical problems with left temporomandibular joint (TMJ)
dysfunction and pain.

This problem
was greatly improved with a custom made mouth guard.

This problem is currently stable
and has good prognosis.

A.A.2.  Blunt
trauma to the left sided head and jaw.

This injury has caused
dysfunction in the left inner ear balancing system, resulting in problems with
balance and co-ordination. This problem is still active and triggered with
quick movements such as turning her neck to the left. There has been some
success with vestibular physiotherapy treatments received at Langley
Physiotherapy. Ms. Campbell has recently started another vestibular
physiotherapy program at Langley Physiotherapy. The prognosis here is deferred
until after this current program is completed.

A.B1. Seat
belt compression injury and blunt trauma to the right breast tissue, producing
a large hematoma (mass of blood), under the skin and deep into the breast
tissue. Although this hematoma has since largely diminished in size; the
surrounding region is still tender and sensitive to light touch from clothing.
Ms. Campbell is ‘living with this increased skin sensitivity’.

The prognosis here is a gradual
reduction in skin sensitivity over time as measured in months to years.

A.B2.   Seat
belt compression injury and blunt trauma to the lower waist/upper pelvic
region.

This injury
has caused extensive bruising to the right and left regions of the anterior
superior iliac spines (top and front of the pelvic bone, usually near the
belt line). This bruising has left large residual patches of skin
discolouration in these regions.

This region
is no longer painful.

Prognosis is good but the skin
discoloration is likely to be permanent.

A.B3.   Seat
belt compression injury to the mid anterior chest region.

This injury
caused localized pain and skin abrasions.

This region
is no longer painful.

Prognosis is good.

A.C1.   Blunt
trauma to the left breast region.

This injury
caused localized pain. This region is no longer painful.

Prognosis is good.

A.C2.   Blunt
trauma to the anterior and posterior lower chest wall.

This injury caused localized
pain and temporarily aggravated a pre-MVA airflow problems (Asthma/COPD)
requiring increased medication to re-establish the decreased air flow. This
region is no longer painful. As the temporary aggravation of the pre-MVA
airflow problems cleared, Ms. Campbell’s breathing problems returned to their
pre-MVA level. Prognosis is good.

A.D1.   Myofascial
sprain of the posterior upper cervical spine, left sternoclavomastoid muscle,
anterior shoulder girdle muscle groups.

These
injuries required physiotherapy treatments.

There are
residual problems in the shoulders and cervical spine.

Prognosis will need some time for
more improvement.

A.D2.   Seat
belt compression injury to the left lateral neck causing localized
musculoskeletal pain and dysfunction.

The injuries
required physiotherapy treatments.

Turning
the neck quickly is reported to still be problematic.

Prognosis will need some time
for more improvement.

A.E1.   Impact
injury left medial (inside) knee joint region.

This
injury caused extensive localized bruising, edema, pain and joint dysfunction.
Ms. Campbell had multiple therapeutic interventions to the left knee, including
physiotherapy, custom knee bracing and intra-articular knee injections of
intra-articular knee injection of triamcinolone (a corticosteroid medication)
and ropivicaine (a local anesthetic) with limited success. Ms. Campbell has
also had a left knee joint injection with Durolane (a viscosupplementation
product with the protective properties of synovial fluid) with limited success.

The left
knee region pain and joint dysfunction is an ongoing problem interfering with
day to day activities such as walking and bending. The surrounding skin in
this region is still very sensitive to touch.

The left knee
region pain, skin sensitivity and joint dysfunction are all ongoing problems.

Prognosis is deferred.

A.E2. Aggravation
of clinically silent left medial (inside) knee osteoarthritis secondary to the
impact injury to the left medial knee joint region.

It is
probable that Ms. Campbell had a pre-MVA left knee joint condition consistent
with clinically silent (not painful and not dysfunctional) osteoarthritis.
This evidence is seen in the plain film x-ray report 25 August 2010 (‘severe
narrowing is seen in the medial compartment of the knee’). It is also
probable that the impact injury to the left medial knee joint region caused
this clinically silent problem to become both symptomatic and dysfunctional. As
already stated, Ms. Campbell had multiple therapeutic interventions to the left
knee, with limited success.

The impact
injury aggravation of clinically silent left medial (inside) knee
osteoarthritis secondary is an ongoing problem.

Prognosis is deferred.

A.F1.   Impact
injury left foot and lower ankle region.

This
injury caused extensive bruising, edema and pain to the left foot and lower
ankle region, making weight bearing painful. This injury responded well to
wearing a fracture boot (equivalent to a removable caste) for 6 weeks with
subsequent mobilization. The localized skin in this region is still sensitive
to light touch.

Prognosis good.

A.G1. Impact
injury to the right lateral lower knee and upper leg region with aggravation of
clinically silent left knee medial osteoarthritis.

The impact
injury to the right lateral lower knee and upper leg region caused localized
pain causing pain and dysfunction.

It is
probable that Ms. Campbell had a pre-MVA left knee joint condition consistent
with clinically silent (not painful and not dysfunctional) osteoarthritis
(‘There is severe medial compartmental joint space narrowing’ – CT bilateral
knees 8 March 2011).

As a natural
consequence to shifting weight from an injured region to a less injured region,
the left knee and ankle/foot injuries shifted the burden of day to day
ambulatory activities to the right leg.

It is
probable that the increased burden of day to day ambulatory activities to the
right leg, aggravated a pre-MVA right knee joint condition consistent with
clinically silent osteoarthritis.

Ms. Campbell
has had right knee intra-articular knee injection of triamcinolone (a
corticosteroi medication) and ropivicaine (a local anesthetic) with limited
success.

Prognosis is deferred.

A.H1. An
aggregate accumulation of mental stressors, pain and physical dysfunction:

Ms.
Campbell’s pre-MVA psychiatric condition is consistent with long term anxiety
and sleep disturbance. Pre-MVA, both problems were stable and treated with
alprazolam 0.5 mg and trazodone 150 mg daily.

On 9
September 2010, her mental health assessment was consistent with a diagnosis of
major depressive disorder (MDD) and generalized anxiety disorder GAD). At that
time her Personal Health Questionnaire (PHQ-9) score was 20 out of 27 (20/27).
The PHQ-9 is a validated tool for diagnosing depression. A score of 20/27 is
consistent with severe depression. Also at that time her Generalized Anxiety
Disorder (GAD-7) questionnaire of 17/21. The GAD is a tool for diagnosing
generalized anxiety disorder. A score of 17/21 is consistent with severe
anxiety. The antidepressant medication Effexor was added to alprzolam 0.5 mg
and trazodone 150 mg daily.

Her most
recent assessment of the MDD and GAD occurred on 1 October 2012. At that time
PHQ – 9 = 21/27 and GAD = 21/21, indicating that both problems were not in
remission.

On 24 October
2012, her medication treatment was adjusted to cipralex 30 mg daily and
Wellbutrin XL 300 mg daily. She was encouraged to continue with psychotherapy
with the psychologist Dr. Banner and to continue with group therapy programs
for anxiety with Langley Mental Health.

It is
probable that the aggregate accumulation of mental stressor, pain and physical
dysfunction due the MVA related events made a large material contribution in
initiating her current problems with MDD and GAD.

Prognosis is deferred.

[Emphasis added.]

[57]        
Dr. Ciavarella listed the plaintiff’s complaints as of October 18, 2012,
as follows:

D: Appendix Medical Office Visits – Complaints, Examination
& Medical problems: Visits 30 August 2010 through to 18 October 2012.
Between the dates listed here Ms. Campbell had the following complaints,
examination & medical problems:

D1.1.   life
stressors aggravating problems with anxiety and chronic depressive reaction

D1.2    increasing
problems with sleep disturbance

D1.3    not
going out any more, not seeing people, poor personal hygiene

D1.4    problems
with mental focusing, short term memory

D1.5.   balance
problems, ‘shaky’,

D1.6    ongoing
issues with left knee pain

D1.7    increasing
problems with right knee pain

D1.8    ongoing
issues with large right breast hematoma

D1.9    multiple
musculoskeletal complains including neck, left knee, left foot, anterior chest

D1.10  physically tired with
little reserve capacity

[58]        
Dr. Ciavarella described referrals to 8 other physicians and no fewer
than 25 diagnostic images over the time he saw the plaintiff.

[59]        
Several specialists’ reports and evidence were before the court. Dr. Bruce
Blasberg, an oral surgeon, accepted that the plaintiff’s complaints of jaw pain
could have resulted from the motor vehicle accident. His review of the records
suggested to him that the plaintiff’s past complaints of jaw pain before the
accident were likely sinus and dental-related rather than jaw joint and muscle
problems. Dr. Blasberg’s prognosis was as follows:

Prognosis:       The prognosis for myalgia of masticatory
muscles and left TMJ arthralgia is favourable. Ms. Campbell improved during the
period I had the opportunity to examine her. It is more likely than not that
she will continue to improve. I did not identify any anatomic abnormalities of
the jaw muscles or jaw joints that would prevent Ms. Campbell from recovering
fully. While Ms. Campbell is more likely to fully recover there are factors in
her case that might adversely affect her ability to fully recover. Having
chronic pain in other body sites and psychosocial issues such as alteration in
mood and stress in family interpersonal relationships might interfere with full
recovery. Ms. Campbell could continue to experience episodes of jaw pain and
dysfunction that require management for the foreseeable future.

I defer to Ms. Campbell’s physician to comment on the
importance of her emotional state, social situation and state of her general
health in relation to recovering from her musculoskeletal injuries.

Disability: Ms. Campbell experienced pain with chewing
certain foods and pain with wide mouth opening. These are activities of daily
living that were compromised by Ms. Campbell’s temporomandibular disorder.

Jaw pain was a site of pain that was part of a more
widespread persisting pain experience. Chronic pain affects most areas of one’s
life including energy level, concentration, restful sleep, concentration,
altered mood, irritability, anxiety, interpersonal relationships. I defer to
Ms. Campbell’s physician to comment on her disability with regard to chronic
pain of which the jaw was one site.

[Emphasis added.]

[60]        
Dr. Neil Longridge, a specialist in Otolaryngology, and in particular he
evaluation of tinnitus, hearing loss, and dizziness, wrote on March 24, 2011:

This patient has a significant left caloric reduction.
This is an objective test and it is impossible to simulate. This finding in the
absence of any other satisfactory explanation in my opinion is probably due to
the accident. She has imbalance, unsteadiness and dizziness subsequent to a
motor vehicle accident. Symptoms are present and documented several months
after the accident.

***

There is an abnormality on Sensory Organization Test (SOT).
She was unable to maintain stance at all on SOT condition 6, had difficulty
maintaining stance on condition 5 where it is also abnormal. These findings are
characteristic for a disturbance of the balance system, probably of the inner
ear. This is an objective test. Sensation induced during this test is the same
feeling of veering that she gets which supports its origin in the balance
system, probably of the inner ear. My experience with this condition is that if
it is present for two years, in my opinion, it is likely to be present on a
long-term, permanent basis.

***

This patient has a disturbance of her balance system. As
she ages it is probable that she is more likely to run into difficulties with
balance and unsteadiness than someone who has not had the insult to her balance
system which she has incurred. Clearly this is something which is only
going to occur in significant old age, but should be kept in mind. Potentially
there is an increased likelihood of falls and for this reason osteoporosis
management has to be optimized.

This patient’s balance system has been injured and should she
incur a further injury she would be more vulnerable to damage than somebody who
had not had a previous injury.

She has some tinnitus which is episodic, brief and therefore
should be regarded as very mild.

[Emphasis added.]

[61]        
On August 28, 2012, Dr. Longridge observed:

Despite the passage of time, review of this patient shows
that she has persistent symptoms of instability, of poor balance and a tendency
to veer towards the right and to bump walls on the right. She uses the
strategy of being near the right-hand wall so that she does not stumble into it
and injure herself or fall. This combination of care and strategy has reduced
the significance and prominence of her symptoms but they persist. My
experience with imbalance is that if it is present for two years, in my
opinion, it is likely to be present on a long-term, permanent basis.

She stated to me that her bone density is abnormal and should
she fall she is at risk of fracture because of this. Optimizing management of
her osteoporosis is indicated to minimize the risk of fracture due to
osteoporosis from a fall as far as is possible.

My experience with patients who have had a vestibular
insult and undergo vigorous physiotherapy is that the physiotherapy produces an
improvement, but when they cease the vigorous physiotherapy their symptoms tend
to recur. I use an analogy here of the runner training for the Olympics who
ceases to train for two or three weeks and cannot perform at the same level
three weeks after having won the gold medal. Similarly, with patients who had
optimized function by physiotherapy, when they cease to perform these
maintenance and training activities their impairment returns to some extent.
For this reason it is important that ongoing home-based vestibular
physiotherapy is maintained with occasional supervision by a physiotherapist to
make sure that the program is maintained optimal for the patient’s needs.

During this assessment the patient was able to complete CVEMP
testing and results are abnormal with amplitude of response below the accepted
lower limit on both sides. This probably means that there is a disturbance of
the saccule of the utricle on both sides. This is a gravity detector organ in
the inner ear and this abnormality is compatible with her complaints of poor
balance. This is an objective test.

The tinnitus she had when I last saw her, which was not
substantially intrusive when I last saw her, has remitted and in my opinion is
unlikely to recur but may should she have a further similar injury to the one
which she incurred.

[Emphasis added.]

[62]        
Dr. G. M. McKenzie a specialist in Sports Medicine, and surgery on the
shoulders and knees assessed the plaintiff in a report dated September 3, 2011,
for her knee, neck, hips and foot complaints. His opinion was as follows:

In my opinion she has had an injury to her left knee with
this accident. She had evidence of bruising and knee pain immediately. In
my opinion she had some pre-existing but asymptomatic degenerative changes in
the knee. In my opinion the motor vehicle accident has activated her
degenerative changes. Were it not for this accident she was at risk for
developing pain in the knee. Having said that she may have gone on for a long
period of time if not forever without being symptomatic in this knee.

She developed right knee pain approximately a month later. In
my opinion this is likely secondary to her abnormal gait but not due to a
primary injury.

She has not yet reached maximum medical improvement. She
won’t reach that stage until she is approximately 2 to 2 ½ years from the time
of the accident. Treatment should consist of further attempts at weight loss.
She has already lost 30 pounds which is beneficial. Unfortunately she can’t
take anti-inflammatories which would usually be a first line treatment. She
might benefit by taking Extra Strength Tylenol 2 pills 3 times a day for pain control.
As Dr. Rose apparently suggested she may also benefit by cortisone injections
into the knee or viscosupplementation. Unfortunately those are unpredictable. I
doubt that unloader bracing would be helpful as her knees would be very
difficult to brace and clinically she does not have significant genu varum.

She may show further improvement with the passage of time.
She has had minimal improvement thus far (estimates 15%). A final prognosis
cannot yet be given. In my opinion the causation of her current knee pain is
the motor vehicle accident as I detailed above.

She is still having problems with neck pain. In my opinion
she has aggravated a pre-existent condition. She has a well documented
history of neck pain previously. In my opinion the likely diagnosis is chronic
myofascial pain. She has had a 75% improvement thus far and in my opinion she
may improve further with the passage of time. In my opinion no further
investigations or treatment are required other than some stretching and
isometric strengthening exercises. A final prognosis cannot yet be given. In my
opinion the causation of the aggravation of her neck pain is the motor vehicle
accident.

She is complaining of bilateral hip pain. In my
opinion she has trochanteric bursitis. She was pre-disposed to this in view of
the fact that she had a previous history of trochanteric bursitis approximately
10 years go. This came on in a delayed fashion and is not primary due to
injury. She thinks it was due to her abnormal gait and that may indeed be
correct. It could however have just come on spontaneously and so as to whether
or not the motor vehicle accident is causative it is possible but not definite.
As to a degree of probability I don’t think I can give that with any degree of
certainty.

She has bilateral foot pain. The left side is worse than the
right. She has some pain and tenderness in the medial aspect of the foot. In my
opinion she may have injured the posterior tibial tendon and/or the medial
joints of the foot. She has also noted a significant improvement in that
regard. She might benefit by some over-the-counter shock absorbing insoles.
Again analgesics such as over-the-counter Extra Strength Tylenol might be
beneficial. She has not yet reached maximum medical improvement. In my opinion
there may be further improvement with the passage of time but as to whether or
not it will resolve completely only time will tell. In my opinion the
causation of her foot problems is the motor vehicle accident as it came on with
the accident and there was bruising in the area.

[Emphasis added.]

[63]        
Dr. McKenzie accepted that these injuries did not prevent the plaintiff
from working but that the cause lay elsewhere, given what the plaintiff had
told him. She had said her major problem was anxiety in motor vehicles and panic
attacks, as well as cognitive issues respecting poor memory and word searching
that she thought was improving.

[64]        
Dr. McKenzie provided updates on May 2, 2012 and October 4, 2012, On May
2, he observed:

In my opinion this lady has improved her neck to a point
where it is actually better than the symptoms she had prior to her accident. In
my opinion she will have no long term problems in her neck as a result of this
motor vehicle accident.

She has also had improvement in her hip pain. In my opinion
as this pain has resolved she will have no ongoing problem in either hip as a
result of this accident.

She continues to have some foot pain. On today’s examination
however it was quite benign. In my opinion the prognosis for resolution of
the foot/ankle pain is good. Since I saw her last time she had a
significant improvement in her pain and in my opinion this improvement is
likely continuing.

She unfortunately is having ongoing problems in areas which
are not areas of my expertise and I will not opine on those issues.

With regard to her ongoing musculoskeletal complaints her
main problems continue to be in the knees, the left side worse than the right.
It remains my opinion that this lady had some pre-existent but asymptomatic
degenerative changes. With this accident she had a direct blow to her knees as
evidence by the bruising and swelling. She now has ongoing pain which in my
opinion is due to activation of her degenerative changes. In my opinion the
motor vehicle accident activated those changes. As I stated previously were
it not for the motor vehicle accident she was at risk for developing pain in
her knees. I base this on the fact that she had some degenerative changes and
is obese. That being said there is no scientific way to predict when or even if
she would have developed this pain were it not for the motor vehicle accident.
In my opinion the motor vehicle accident caused her degenerative changes to
become symptomatic and is responsible for the current pain that she is having
in her knees now.

***

Although she has not yet reached maximum medical improvement
(she is still less than 2 years from the time of the accident) in my opinion
the prognosis for full resolution of her knees back to the asymptomatic status
is guarded at best. I base this on the fact that there is no obvious trend or
tendency towards improvement in her knees. If improvement is going to occur I
would have expected at least some improvement by now and there essentially has
been none. That being said, once a degenerative joint is activated by injury
improvement can occur for a number of years and I would estimate in the range
of 3 to 3 ½ years. As I indicated above however I would have expected some
of that improvement to have occurred already and that does not seem to be the
case.

[Emphasis added.]

[65]        
On October 4, 2012, he observed:

It remains my opinion that this lady’s neck improved to the
same level, or even better, than the pain that she had prior to this motor vehicle
accident. In my opinion she will not have any long term problems in her neck as
a result of this accident.

When I saw her last she had had an improvement in her hip
pain. Unfortunately that has now recurred. In my opinion this is more likely
due to the pre-existing problems that she had in her hip and has not been
caused by this accident. As she has not had ongoing persistent hip pain from
the time of the accident until now, it would be my opinion that her current hip
pain is not due to the motor vehicle accident, either from a primary point of
view or a secondary point of view. This lady has evidence of trochanteric
bursitis on both sides, and also has some evidence of pain which may be coming
from the joint itself due to degenerative changes (as per her new hip x-rays).
She may benefit by further injections into her hips. She has had a good result
with that in the past.

She no longer has issues with her
feet. In my opinion those have essentially resolved. In my opinion she will not
have any long term problems in the foot or ankle as a result of this motor
vehicle accident.

[66]        
Dr. McKenzie considered the prognosis for the plaintiff’s knees to be
“poor”.

[67]        
The plaintiff was assessed by Dr. Elizabeth Zoffmann, a psychiatrist, on
three separate occasions, the last of which was October 2, 2012. Her opinion then
was that the plaintiff had “chronic generalized anxiety with decreased driving
related anxiety.” Her impression of the plaintiff was as follows:

Ms. Campbell has had a minimal initial response to
antidepressant treatment of her depression and anxiety. These gains were noted
by other assessors in the summer of 2012 but she has slid back in the face of
new and increased stressors. She has taken steps to pursue treatment for the
depression but the results of the increased does will not be evident for two to
three weeks and at that time one might be able to know if a further increase is
necessary.

Low motivation and disinterest related to depression
interacts with her metabolic problems still reduces the odds that she will be
able to physically mobilize herself to increase her fitness and decrease her
weight. The ongoing weight problems interact with her knee problems – causing
her pain that in turn interacts with her mood state and worsens her depression.

Ms. Campbell may no longer have obstructive sleep apnea. She
should undergo another overnight oximetry test to verify this.

Ms. Campbell describes and demonstrates symptoms of
ongoing poor concentration with loss of focus, inattention, forgetfulness and
an inability to read for any substantial period of time. These symptoms are
worse when she is feeling stressed and overwhelmed. She describes being
quite overwhelmed when her ex-husband failed to pay spousal support on time.
Her depression and anxiety contribute to heightened stress sensitivity. Her low
energy and apathy (areas of function also related to depression) are barriers
to increasing her social and potential occupational competence.

[Emphasis added.]

[68]        
Dr. Zoffmann said the prognosis was open to question as treatments were
ongoing. She felt that as of the date of the report:

Ms. Campbell is unlikely to be able to obtain, maintain or
sustain competitive employment. It remains to be seen whether further
psychiatric treatment will ameliorate her psychiatrically-related problems as
set out above sufficiently to allow a partial return to work. I defer to
experts in employment rehabilitation but my understanding is that a person with
Ms. Campbell’s constellation of problems has a very low probability of
attaining competitive employment status.

[Emphasis added.]

[69]        
The plaintiff was assessed on October 15, 2012, by Dr. K.J. Ho, a
neurologist, respecting her “apparent concussion resulting in cognitive
difficulties.” He observed:

1.         Ms. Campbell probably incurred a mild
concussion as a result of the MVA of July 16, 2010.

2.         The absence of the mention of headaches,
especially early after the MVA, and the much delayed mention of difficulties
with memory, thinking and concentration would be in keeping with the mildest of
concussions and the probable absence of a significant “post-concussion syndrome’.

3.         Ms. Campbell’s long-standing and pre-existing
depression and anxiety worsened significantly following the MVA. It is my
opinion that this is the major cause of her later documented difficulties with
memory, concentration, thinking, word-finding and other cognitive difficulties.

4.         Other contributing causes to her cognitive
difficulties include chronic dizziness which developed following the MVA as
well as the development of Obstructive Sleep Apnea which can cause cognitive
clouding.

5.         Therefore, it is my opinion that, although
there was an apparent concussion, there is no evidence to support a diagnosis
of cognitive difficulties as a direct result of brain injury from the MVA.

[Emphasis Added]

[70]        
The plaintiff was assessed by Dr. Elizabeth Bannerman, whose findings
were as follows:

Ms. Campbell currently meets diagnostic criteria for a
Major Depressive Disorder, Recurrent, Moderate Severity and a Generalized
Anxiety Disorder, Chronic. The latter has been present throughout her adult
life, but now the content of her worry and anxiety has expanded to include
driving, her vocational future, and physical functioning.

While pain is certainly both a precipitating and maintaining
factor for her mood disturbance, I do not believe that Ms. Campbell meets
diagnostic criteria for a Pain Disorder.

Ms. Campbell’s current Global Assessment of Functioning (GAF)
score is 58, reflecting moderate impairment in her social and occupational
functioning.

[Emphasis added.]

[71]        
On January 11, 2012, Dr. James Schmidt, another psychologist had
observed:

In light of all of the information at my disposal, I am of
the opinion that Ms. Campbell, at this point in time, does show significant
emotional disruption. This includes significant symptoms of both anxiety and
depression. The anxiety symptoms include both generalized anxiety and specific
symptoms of Posttraumatic Stress Disorder. The information I have would lead
me to conclude that although she may have had some problems with depression
before the accident the anxiety developed following it.

[Emphasis added.]

[72]        
In a follow up report on October 10, 2012, he said:

6.         Taking all of the information together, I would
conclude that although it is possible that Ms. Campbell suffered a mild
traumatic brain injury, also known as a concussion, in the accident in
question, it is unlikely that this has left her with any persisting effects if,
indeed, it did occur. That said, persisting effects of mild traumatic brain
injury cannot definitely be ruled out until some of the other problems that she
has, which can easily explain her current cognitive difficulties, have been
resolved. I would further conclude that the accident did have a significant
impact on her emotional state. I would agree with Dr. Hoffman’s formulation
that Ms. Campbell was an individual who, prior to the accident in question,
struggled with both anxiety and depression but was, for most part, able to keep
them at a level that did not allow them to significantly disrupt her life. The
added stressors arising from the accident in terms of pain, disruption of her
life plan and so on simply overwhelmed her ability to cope with these ongoing
difficulties, and they hence became much more intense and impactful on her
day-to-day life. Further, these problems have persisted to the present time.

7. Prognosis in this case remains somewhat
uncertain, although it is certainly more guarded now than when I originally saw
her for the preliminary evaluation. This is because her symptoms have persisted
over time despite the provision of treatment. That said, it remains my
opinion that, with more intensive treatment, there is still good reason to hope
that her emotional and behavioral difficulties will substantially improve. In
particular, I would recommend that she receive more regular psychotherapeutic
intervention, at least on a weekly basis.

[Emphasis added.]

VII

[73]        
The defence led evidence from Dr. Robert Froh, a specialist in adult
reconstructive surgery, who conducted an examination and provided a report
dated February 4, 2012. His conclusion was as follows:

This patient’s diagnoses includes:

1.         A soft tissue injury to the cervical spine,
Quebec classification grade 2 by the patient’s history. There is one entry from
Dr. Robson that suggests she might have a decreased range of motion of the
cervical spine post-MVA. There is no evidence here of any structural damage to
the cervical spine nor of any disc herniation or nerve root impingement. This
patient does have significant pre-existing degenerative changes of the cervical
spine. These degenerative changes are a mitigating factor in the length of time
it takes to recover from soft tissue injuries such as these. This patient’s
cervical spine examination is now completely normal except for slight stiffness
that the patient claims is her normal range of motion. This would be secondary
to her body habitus (significant obesity) and significant pre-existing
degenerative change at the cervical spine.

2.         A soft tissue injury to the seatbelt area
from a shoulder and lap belt. This involved the left clavicle, chest wall
including the sternum with a hematoma at the right breast. There was also
bruising across the lower abdomen and pelvis. All of these findings have
resolved except for some very slight tenderness over the clavicle and sternum
with no evidence of prior fracture or disruption.

3.         A significant soft tissue injury to the left
forefoot. There was no fracture and Lisfranc’s joint was always stable. There
is mild residual tenderness over the medial arch where the patient has a low
and flexible arch and she pronates. She would benefit from the use of
orthotics. This would probably improve or completely eradicate her arch pain.
The low arch and pronation are unrelated to the motor vehicle accident.

4.         Bilateral knee pain due to mild medial
compartment degenerative changes and patellofemoral degenerative changes. There
is also pes anserine bursitis bilaterally. These symptoms are due to some
generalized soft tissue pain in both lower legs and poor patellofemoral
mechanics. The mild degenerative changes at both the medial compartment and
patellofemoral compartment bilaterally pre-existed the motor vehicle accident.
There is no mechanical problem here. There has been no structural damage to
either knee. Specifically, there has been no fracture or bony injury. There has
been no meniscal injury or impaction injury to the articular surfaces. I note
that this patient had an MRI scan, which showed no evidence of significant bone
contusion.

5.         Left termpomandibular joint dysfunction. This
was a pre-existing condition that the patient had in 2009 for which she
obtained a night splint form her dentist and had a CT scan of the TM joint and
jaw for pain at her left-sided jaw and face. The motor vehicle accident
obviously aggravated this pre-existing condition. This pre-existing condition
is well-documented by Dr. Chan. Dr. Robson obtained CT scans of the face and
jaw because of these symptoms. For an accurate diagnosis and prognosis, you
would have to get an opinion from one of the dental/oral medical specialists
that the patient has seen.

6.         A possible diagnosis of concussion. The
patient told me that she had a diagnosis of a concussion by Dr. Ho the
Neurologist. In fact, he did not diagnosis (sic) a concussion. Dr. Ciaveralla
thought that she might have had a concussion. I do note that the patient had
documented problems with her memory prior to the motor vehicle accident. She
had late-onset of vertigo. I will leave any opinion as to whether the patient
had a concussion up to the two Neurologists that the patient has seen post-motor
vehicle accident.

Problems 2 and 3 are directly related to the motor vehicle
accident from July 2010. Problem 1 is a soft tissue injury superimposed on a
significant pre-existing history of degenerative change. The patient claims to
have been asymptomatic at her neck prior to the motor vehicle accident from
July 2010. In fact, this is not true and she had symptoms at her neck and both
arms and sought the treatment of a Neurosurgeon in 2008 and 2009. She has
well-documented degenerative changes at the cervical spine pre-dating the motor
vehicle accident including plain x-ray imaging, CT scan imaging and MRI
imaging. There has been slight progression in her cervical spine degenerative
changes since her initial imaging done in 2005. None of the degenerative
changes seen on the more recent x-rays and CT scan of the cervical spine are in
any way related to the motor vehicle accident. None of these changes are
traumatic and all of them are degenerative in nature and occur over many years.

Problem number 4 appears to be a precipitation of both
medial and patellofemoral pain after impaction of her knees in the motor
vehicle accident. She has not sustained any structural damage to the knees but
is now symptomatic with her pre-existing patelloemoral and medial compartment
degenerative changes. None of these changes are related to the motor vehicle
accident from July 2010 and these have taken many years to occur. They are
certainly not uncommon in patients of this age and in particular in patients
who are significantly obese. None of the imaging, including an MRI scan of the
knee and CT scan of the knee, show any sign of traumatic injury.

The usual time off work after soft tissue injuries such as
these is between 6 and 12 weeks. With the pre-existing degenerative changes at
the neck and knees, you could certainly have prolonged recovery and periods of
up to six months or longer might be acceptable for time off work. I note that
this patient worked only part-time as a financial planner. This is a completely
sedentary occupation and even if the patient had significant symptoms at her
knees and neck, she should have been able to return to work without difficulty.
Once the patient’s neck symptoms resolved, she should have been able to get
back to her full job, which is part-time financial planning. In fact, she could
have gone to full-time financial planning or any other sedentary job on a
full-time basis. The fact that she has ongoing aching at her arch and pain
at her knees has no bearing on whether she is capable of doing a completely
sedentary job.

The patient claims memory problems which may have pre-existed
or may be related to the GP’s diagnosis of depression. At any rate, this is a
reason she feels she cannot get back to financial planning. For an opinion in
this regard, you would have to speak to one of the two Neurologists who saw the
patient post-motor vehicle accident. Certainly, going through the medical
record, it does not appear that the patient had a significant head injury.

While this patient may have aching at her knees with
activities, I would not restrict her from any kind of vocation or recreational
activity. She is quite capable of doing more than sedentary work and
certainly she is capable of doing work that entails walking, standing, and
climbing stairs. She would not be capable of doing any kind of laboring job
but, given her pre-existing neck and knee problems as well as her generalized
deconditioning and obesity, she would not be a candidate for any kind of
labouring job prior to the motor vehicle accident. This patient has had
prior significant degenerative change at the neck with a prior disc herniation
that settled down. She would have been at considerable risk for having neck
symptoms in the future, regardless of whether she was involved in the motor
vehicle accident from July 2010. This patient had significant medial and
patellofemoral degenerative changes at both knees prior to the motor vehicle
accident. While the patient claims they were asymptomatic, she is a low-demand
patient doing a sedentary occupation. While the patient claims they were
asymptomatic, she is a low-demand patient doing a sedentary occupation.
While I would not say it is probable, it certainly is possible that she would
have had knee symptoms at some point in time regardless of whether she was
involved in the motor vehicle accident from July 2010 or not. These
degenerative changes at the medial compartment and patellofemoral compartment
of both knees are progressive in nature and typically, over years and decades;
they do progress and tend to cause symptoms. There are, however, many people
who develop significant degenerative changes who, while they might have
stiffness, do not have significant pain although they typically modify their
activities over time to compensate for the degenerative changes.

The patient’s degenerative changes at the neck and both knees
will progress over time, as is the nature of these degenerative changes. The
progression in the arthritis in the neck and both knees will not be any faster
as a result of the motor vehicle accident. There was no structural damage to
either knee or to the neck and there will be progressive degenerative changes,
as there would have been even if the patient had not had the motor vehicle
accident. While it is possible that the patient may require surgical
intervention at the neck or either knee in the future, this would not be
because of the motor vehicle accident. It would be because of the pre-existing
and progressive degenerative changes found in all three of these areas.

This patient will not require any ongoing treatment. She
needs to lose weight, improve her cardiovascular health, and work on her
quadriceps strength. She does not need any passive treatment from a
Physiotherapist or a Chiropractor. She does need an exercise program that she
would do at home. I note that she has not done this since the motor vehicle
accident. Other intervention in the future regarding her degenerative changes
might include further activity modification, regular anti-inflammatories, and
injections to the knees of either steroid or a visco-supplement for symptom
relief. Medial offload braces oftentimes will improve medial compartment
osteoarthritis symptoms, however the patient’s body habitus does not lend
itself well to bracing at the knees. Ultimately, if she gets progressive
changes at the knees, she may require surgical intervention in the form of
arthroplasty. All of these modalities that she may require in the future, are
unrelated to the motor vehicle accident from July 2010.

[Emphasis added.]

[74]        
The defence led evidence from a dentist Dr. Sujay Mehta. He noted:

Sherrie Campbell suffered traumatic injuries following a
motor vehicle accident 16^th July 2010. Dr. Robson’s clinical
notation on 27^th July 2010 reviews pains to the neck, writs, chest,
abdomen, left knee, left foot and dysphagia. She reviewed history of jaw
locking a few weeks after the MVA.

The clinical records from July 2009 do note ongoing concerns
with sinus and TMJ pains that resulted in further investigation with CT scans
to the temporomandibular joint which were concluded as normal. The dental
records prior to the MVA of July 2010 also suggested use of a mouth guard
following the ongoing jaw pains although the clinical records are incomplete
with no objective measurements to jaw or mouth range of motion nor do the records
include palpation to the temporomandibular joint or muscles of mastication.

Given the history presented to me, it is my opinion that
the motor vehicle accident of 16^th July 2010 has likely aggravated
the jaw complaints that were occurring a year before when she was investigated
for jaw and face pains with CT and recommended a night guard for possible
bruxing.

The prognosis is difficult to determine at this time given
the ongoing pain complains since the traumatic injury of 16^th July
2010. The prognosis is further complicated by the fact she has had a
pre-existing left facial pain that may not have received adequate management at
the time of onset from July through October 2009.

[Emphasis added.]

Dr. Mehta was not satisfied further surgical treatment was
warranted.

[75]        
The defence led evidence from Dr. Alexander Levin, a psychiatrist, who
gave a report on April 12, 2012. After an extensive review of the plaintiff’s
history and the available records, including some of the reports tendered in
this proceeding Dr. Levin’s opinion was as follows:

Overall, I would like to reiterate that Ms. Campbell
presented with a significant pre-existent history of what seems to be recurrent
depression. At the time of the Motor Vehicle accident in question she was
receiving treatment with antidepressant and antianxiety medications. As a
result of the motor vehicle accident in question, Ms. Campbell did not develop
any new, not previously existent, psychiatric condition that would require any
separate psychopharmacological or psychotherapeutic intervention.

It does not seem that following the motor vehicle accident in
question, Ms. Campbell experienced any significant worsening of her
pre-existent depression that would require additional psychopharmacological
intervention. Although Ms. Campbell described the development of driving
anxiety, she was able to resume driving alone as well as assuming the
responsibility for driving her children. This clinical presentation would not suggest
the presence of post-traumatic stress disorder or any other specific
psychiatric condition. Ms. Campbell’s somewhat isolated complaints of driving
anxiety did not seem to have any clinical significance as she was able to
overcome them on her own prior to her psychotherapy session with Dr. Bannerman.
If anything, Ms. Campbell reported that following a session with Dr. Bannerman
she experienced a worsening of her driving anxiety. From a clinical
perspective, I did not find any evidence that Dr. Bannerman’ form of
psychotherapy resulted in any improvement or alleviation of Ms. Campbell’s
anxiety symptomatology. I am convinced that Ms. Campbell actually required the
psychotherapy performed by Dr. Bannerman.

Ms. Campbell presented with ongoing complains of physical
problems and pain. I defer an opinion regarding the physical injuries sustained
by Ms. Campbell during the motor vehicle accident in question to specialist in
internal medicine, neurology and orthopaedic surgery. However, from a
psychiatric perspective, Ms. Campbell did not present with a pervasive
preoccupation with pain or time consuming activities to manage that ain to the
extent that she would be diagnosed with pain disorder as a psychiatric
condition. Ms. Campbell presented with a number of coexistent situational
stressors that seemed to play a significant role in maintaining her ongoing
anxiety and “dysphoria”. The combination of these situational factors
(including the motor vehicle accident in question and related physical
injury/pain) probably contributed to Ms. Campbell’s overall experience of
anxiety and dysphoria, but did not cause the development of any separate, not
previously existent, psychiatric condition. In my clinical opinion, the
emotional and psychological effects of the motor vehicle accident in question
on her pre-existent depressive disorder were transient. They did not produce
any psychiatric disability and also did not change her prognosis.

[Emphasis added.]

[76]        
Several of the medical witnesses attended for cross-examination on their
reports. Dr. Ciavarella, Dr. Zoffmann, Dr. Levin, and Dr. Froh were all ably
cross-examined by counsel to some occasional affect in demonstrating the degree
to which the reports are not definitive, but are themselves subjective and open
to question where they appear to have been selective or founded on debatable information.
One notable instance was Dr. Longridge’s explanation about his apparently
arbitrary cut off of six months for linking TMJ to a past event like an
accident. This served to illustrate that the experts are sometimes guessing,
and that the advantage they have over the court appears to be simply that
theirs is an educated guess. Notwithstanding the weaknesses illustrated
on cross-examination, I am, however, satisfied that as much of the reports as I
have reproduced will serve to outline the issues the court must weigh and
consider.

[77]        
Dr. Robson, the plaintiff’s family physician, was called to outline the
plaintiff’s history as reflected in his clinical records. Inasmuch as the
plaintiff’s history is repeatedly documented in the medical reports and the
other evidence I do not think it necessary to summarize Dr. Robson’s evidence
here.

VIII

[78]        
The plaintiff’s position is that the accident was a life-altering event.
She submits that despite an extremely traumatic childhood and youth, and two
failed marriages, she had done well and shown herself to be both
entrepreneurial and resilient, given the further challenges she had in her third
marriage and with her children’s difficulties. Despite her significant
pre-existing conditions she was managing her household, gardening, looking
after her horse, and doing things like going to casinos with her mother and
living an ordinary social life.

[79]        
The plaintiff submits that the motor vehicle accident was serious, as
exemplified by the damage to the vehicles and the very significant battering
the plaintiff took as the photographs show.

[80]        
She suffered injuries to her jaw, neck, chest, ribs, knees, feet and
breast. She attended “countless” appointments for different modes of therapy
(over 100 according to the admissions) as well as two attendances at hospital
for panic attacks and 11 visits for various diagnostic imaging appointments.

[81]        
The plaintiff submits that since the accident she has experienced a loss
of ability to concentrate, and to remember things. This has driven her to stay
home much more than she did before the accident. These changes were noted by
the lay witnesses, Belinda Burns and Ashley Singh. Dr. Ho suggests that the
plaintiff’s longstanding and pre-existing depression and anxiety worsened
significantly following the accident, and that it is the major cause for her
difficulties with memory concentration and cognition.

[82]        
The plaintiff submits that, but for the accident, and despite her
pre-existing and ongoing medical complaints, she would have been able to pursue
her goal of working full time as a financial consultant for Primerica. She
submits that the weight of the medical and therapeutic evidence is that this is
now impossible and that her residual employability in a competitive marketplace
is “nil”. She submits that it is a form of extreme speculation to think
otherwise, given her age and her educational physical and emotional and
cognitive limitations.

[83]        
The plaintiff submits that she has suffered a post-accident income loss
that may be calculated by taking her known income for 2008 – 2010 and
projecting reasonable amounts, assuming the plaintiff would have begun to work
full time in mid-2012. The plaintiff submits that this yields the following
calculations:

[84]        
The plaintiff submits that thereafter it is reasonable to project an
income of $30,000 or so per annum. She calculates this loss using the
multiplier supplied by Robert Carson, an actuary as follows, showing the loss
for $25,000, $30,000 and $35,000 respectively:

[85]        
The plaintiff claims cost of future treatment, calculated on the recommendations
of several treating professionals, as follows:

TMJ

Maria Zerjav year 1                               $1,800.00

Dr. Blasberg                                            $525.00

Topical medications $400.00

 $2,725.00

Vestibular treatments

Monthly for 2 ½
years (30 visits x $50)   $1,500.00

then bi-weekly for
one year                       $300.00

ongoing at 4 times
per year ($200.00 per

year) for life
200/1,1000 x 16,063 $3,200.00

 $5,000.00

CBT (Dr. Bannerman report) $5,320.00

Homemaker assistance

$1,560.00 per year for 5 years

1,560/1,000 x 5,321                                                  $8,300.00

TKR rehabilitation

Total knee
replacement rehab

Ms. Campbell will
probably need a total

replacement of her
left knee, if not also

her right knee.
Rehab after a total knee

replacement is a
painful and long-drawn-out

process ($100 per week x 12 weeks)                         $1,200.00

Prescription medications

Cipralex ($60.00 per
month)

Wellbutrin ($35.00
per month)

A total of $104.00
per month of $1,248.00 per year

for 2 years –
$1,248/1,000 x $2,826 $3,526.00

 $26,071.00

[86]        
The plaintiff submits that general damages for pain and suffering and
loss of enjoyment of life should be assessed in the range of $105,000 –
$130,000. The cases cited as comparables include:

Pett v. Pett, [2008] B.C.J. No. 873, 2008 BCSC 602;

Bjornson v. Field, [2007] B.C.J. No. 2734, 2007 BCSC
1860;

Dulay v. Lachance, [ 2012] B.C.J. No. 352, 2012 BCSC
258;

Moukhine v. Collins, [2012] B.C.J. No. 150, 2012 BCSC
118;

Stovel v. Paul, 2013 BCSC 30;

Eccleston v. Dresen, [2009] B.C.J. No. 483, 2009 BCSC
332;

Szymanski v. Morin, [2010] B.C.J. No. 5, 2010 BCSC 1;

Zimmerman v. Beattie, [2005] B.C.J. No. 755, 2005 BCSC
502;

Yeung v. Dowbiggin, [2012]
B.C.J. No. 267, 2012 BCSC 206.

[87]        
The plaintiff claims special damages of $13,773.29. Of these $8,975.31
have been agreed. The remaining $4,797.98 is made up as follows:

[88]        
The plaintiff claims that these were reasonable and necessary expenses.

[89]        
In summary, the plaintiff submits that she is entitled to damages as
follows:

IX

[90]        
The defendant submits that the plaintiff’s past income loss is very
modest. She submits that the plaintiff’s ability to pursue the Primerica
opportunity was interrupted until October 1, 2010, when she started driving
again, and that thereafter her opportunity to do that work was interrupted by
her separation from Mr. Campbell in July 2011. The defendant submits that any
loss is only attributable to the first few months after the accident. She suggests
an appropriate amount would be $2,500.

[91]        
The defendant submits that the plaintiff’s future loss of income is
minimal. The submission is two-fold: factually, the defendant submits that the
plaintiff is able to carry on her Primerica activities presently,
notwithstanding the injuries suffered in the accident; legally, that is, as a
matter of proof, the defendant submits that the plaintiff has failed to carry
the burden of establishing a loss of future income earning capacity. The latter
submission is made with reference to Athey v. Leonati, [1996] 3 S.C.R.
458 at para. 27, to the effect that purely speculative claims will not give
rise to compensation for loss of future income earning capacity; and Perren
v. Lalari 2010 BCCA 149, to the effect that a plaintiff must always prove
that there is a “real and substantial” possibility of a future event leading to
income loss. The defendant submits that the plaintiff has failed to prove such
a possibility.

[92]        
The defendant submits that modest allowances for future care for the jaw
physio therapy recommended by Dr. Blasberg (up to $1,050) and for the topical
medication he also recommended ($1,500) should be allowed. She submits that the
vestibular physiotherapy recommended by Dr. Longridge should be allowed at
$2,000. She submits that a reasonable allowance for future psychotropic
medication would be $3,000, and for cognitive behavioral therapy recommended by
Dr. Zoffmann, $5,000 would be appropriate, for a range of $5,376 – $7,859.

[93]        
The defendant submits that damages for pain and suffering and loss of
enjoyment of life should be assessed in the range of $50,000 – $70,000. The
cases cited as comparables are Warren-Skuggedal v. Eddy, 2009 BCSC 1085;
Higgerty v. Huzell et al, 2000 BCSC 1091; Piper v. Hassan,
2012 BCSC 189; and Qiao v. Buckley, 2008 BCSC 1782.

[94]        
The defendant’s submission on the special damages which are not
agreed is that Dr. Bannerman’s therapy was not necessary, according to Dr.
Levin. The defence contends that it was therapy that would have been necessary
for other reasons than the accident, specifically in helping the plaintiff to
deal with the breakdown of her marriage. The defendant suggests that half of
the claim, or $1,982.50 should be paid by the plaintiff.

[95]        
The Perfection Cleaning account was paid for by ICBC before January 6,
2011. The period for which the plaintiff claims a further $1,950 (5 hours per
week at $30 per hour until March 4 then 5 hours every 2 weeks to April 29,
2011), the defendant submits was a time when she was not in need of such
assistance.

[96]        
The defendant submits that the plaintiff cannot prove the expenditures
on medication which are disputed because she cannot produce receipts. On that
basis the defendant submits those claims should be disallowed.

[97]        
In summary the defendant submits that the appropriate range of damages
is as follows:

X

[98]        
In attempting to assess the plaintiff’s damages, in the context of
numerous and conflicting medical opinions and numerous therapeutic
interventions, I think it important to recall that the plaintiff was seriously
bruised and battered in the accident, literally from head to foot. Had she been
completely healthy at the time the accident occurred, it would not have been
surprising to find that her recovery was prolonged, or that she was left with
residual problems in her knees or feet or other parts of her body, particularly
given her age.

[99]        
As it is, the plaintiff was not particularly healthy to begin with, as
the medical record shows. She was, however, functional, and able to carry out
the demands related to Primerica to at least a limited extent. I think the
evidence of Ashley Singh is pertinent to the plaintiff’s prospects at
Primerica. She is a young woman with considerable energy. She passed the
plaintiff in sales quite early in their relationship. I think it doubtful that
the plaintiff was likely to make a success of Primerica on a full time basis, even
if she had had the chance. Mr. Campbell’s evidence is that she was already tiring
of the rejection that was an unpleasant but inevitable part of the job. The
plaintiff’s description of herself as a person who likes people, and who
enjoyed the work for that reason, was, I think, unlikely to withstand full-time
exposure, in any event.

[100]     The
plaintiff’s condition includes chronic jaw pain, pain in her knees which
activated or aggravated “clinically silent” osteoarthritis, vestibular problems
affecting balance and co-ordination, aggravation of a pre-existing neck
problem, (which has now returned to at least its pre accident status), problems
with her feet, and a worsening of pre-existing anxiety and depression.

[101]     The
plaintiff’s pre-accident life was described by her family doctor, perhaps using
her term, as “in shambles”, worsened after the accident with the stresses
associated with the final breakup of the marriage. This was not a consequence
of the accident. It is very clear from the evidence that the parties had
drifted apart to a point where separation was only a matter of time. I accept
Mr. Campbell’s evidence that, if anything, he postponed leaving because of the
accident. The weight of the medical opinion I accept is to the effect that the
injuries suffered in the accident may have contributed to the plaintiff’s
present psychological difficulties, but only as one factor.

[102]     Dr. Froh
suggested that the plaintiff’s knee and foot pain would not have prevented her
from working at a sedentary occupation. He appears to have considered the
Primerica job sedentary. He also suggested that it was possible that even if
there had not been an accident, the plaintiff’s knee symptoms may have become
painful in any event. He specifically notes that he would not have said it was probable
that such pain would necessarily develop.

[103]     Dr. Levin,
the psychiatrist called by the defence was of the opinion that the plaintiff
had a long standing history of recurrent depression and that the effect of the
accident was “transient”. Dr. Levin was firmly of the opinion that no new
psychiatric condition developed as a result of the accident.

[104]     I accept
that the plaintiff’s injuries were superimposed on medical conditions that
were, in some respects, temporarily aggravated (the neck) but have returned (according
to some of the medical opinion) to pre accident levels; that like the knee pain
some, appear to have been latent but to have been triggered by the accident (although
they may have become symptomatic in any event); and that some appear to be
relatively new or different in kind: the jaw pain, for example, appears to be
distinct from pre-accident sinus complaints, and the vestibular difficulties
appear to be recent, and to be related to the accident.

[105]     The lay
witnesses are of assistance in assessing the plaintiff’s claims. Both noticed
marked changes in the plaintiff’s demeanour, and attitude and the way she
appeared to move. I accept that the plaintiff may not be suffering from a
wholly new set of conditions, but the accident contributed to meaningful
incremental changes in the plaintiff’s psychological anxiety and distress.
These have significantly impacted her enjoyment of life and her energy. I think
that Dr. Froh underestimates the physical demands of the Primerica work, which
is not entirely sedentary, but, as I understand the evidence, required calls
and attendances at various kinds of events. I do not find it difficult to
accept that the injuries the plaintiff suffered had an impact on her ability to
carry out a sales job, which is largely what the Primerica job appears to be.
At the other end of the spectrum, I think it clear that the plaintiff was not
capable of any kind of heavy labouring work before the accident. She had,
however, managed work with at least moderate physical demands in the past, and
it is not clear to me that she had fully lost that capacity. She met the
essential demands of a family with multiple challenges.

[106]     The
plaintiff has dealt with many tribulations in her life. The over-all impression
she gives is of a person who simply kept going despite these difficulties and
who had some entrepreneurial initiative. Despite a tendency to depression she
appears to have been, in the past, fun and amusing with her friends, and although
her marriage was nearly over before the accident, Mr. Campbell’s departure and
the disruptions that followed, selling the family home, and finding a new place
to live, would have been upsetting to anyone. The accident did not cause these
problems but it certainly made the plaintiff’s situation more difficult to deal
with, and exacerbated her pre-existent tendency to depression and anxiety.

[107]     The
differences between the medical reports are not reconcilable, but offer the
court a range of perspectives. The court must avoid visiting damages upon the
defendant that load pre-and co-existing difficulties unfairly on the accident.
On the other hand, it must also recognize that for a person with serious
limitations, a relatively small change may have significant practical
consequences.

[108]     I think
the defendant has quite fairly recognized that damages for pain and suffering
and loss of enjoyment of life are significant. Of the cases cited, Qiao v.
Buckley appears analogous, although the plaintiff in that case was somewhat
younger than the plaintiff in this case. She does not appear to have suffered
quite the degree of injuries the plaintiff suffered in the accident itself.
Damages of $75,000.00 were assessed.

[109]    
The plaintiff has tendered cases addressing certain basic principles of
damages assessment. In Boyd v. Harris, [2004] BCJ No. 472, 2004
BCCA 146, the Court of Appeal described the nature of the task as follows, at
para. 42, per Smith J.A.:

42.       The identification of
comparable cases is not a simple task. Each case is unique. The process should
be systematic and rational, not conclusory. We must therefore search for common
factors that influence the awards, such as, most obviously, the age of the
plaintiff and the nature of the injury. However, comparisons can be made on a
more abstract level, as well. The factors to be considered include the relative
severity and duration of pain, disability, emotional suffering, and loss or
impairment of enjoyment of life. The awards in the comparable cases must be
adjusted for inflation. When the appropriate range is identified, adjustments must
be made for the particular circumstances of this case, including the
plaintiff’s need for solace, which must be considered subjectively: Penso v.
Solowan, supra, at 261.

[110]     Several of
the cases tendered by the plaintiff address various combinations of head, neck,
shoulder and lower back pain (Pett); similar types of injury plus mild
brain injury (Bjornson); chest, arm, elbow, leg, knee (osteoarthritis
rendered symptomatic) (Dulay); headaches, nausea, sore neck, dizziness (Moukhine),
and neck, back, headaches, hearing loss, tinnitus, anxiety disorder (Stovel);
and, spine and neck injuries anxiety and depression (4 accidents) (Yeung).

[111]     I do not
accept the range to be as high as the plaintiff has submitted. Rather, taking
account of the degree to which the cases cited are comparable, and the
plaintiff’s unique combination of injuries: those from which she suffered for a
time but has recovered (bruising, neck pain); those from which she always
suffered but which have been exacerbated by the accident (anxiety); and those
which are attributable to the accident (knee pain becoming symptomatic, the
vestibular issues), allowing for the possibility that the latter might have
become symptomatic in any event, and assessing the credibility of the
plaintiff’s complains in light of the medical evidence and what the lay
witnesses had to say, and the effects of inflation on comparable decisions, I
am of the view that the plaintiff’s damages for pain and suffering and loss of
enjoyment of life should be assessed at $90,000.

[112]     I am of
the view that past income loss would have been very modest and that it is
likely that, in any event, the plaintiff would have earned, at best, modest
sums from Primerica. Although the plaintiff started driving again on October 1,
2010, I accept that the injuries the plaintiff suffered, when superimposed on
the other non-accident related stresses, and particularly on the issues
respecting the breakdown of the marriage, may have made some difference to the
plaintiff’s ability to earn an income even after the separation. In other words
I do not think it quite as clear cut as the defence submits, which is that
following the separation the plaintiff would in any event, have been off work
for non-accident related reasons. I assess $10,000 for past wage loss.

[113]     I do not
think the plaintiff’s prospects at Primerica were nearly as good as she submits.
But for the accident I see little reason to think the plaintiff would have made
much money in that line of work, and there is some indication that, despite the
plaintiff’s evidence, her enthusiasm was waning. The plaintiff had some limited
capacity to work, despite her pre-accident injuries and conditions but I would
not put her prospects at higher than $10,000 in any particular year. On the
other hand, I think there is some prospect that she might have worked past the
age of 65. I think the plaintiff may yet be capable of some employment within
her limitations, but do not consider the possibility a significant contingency
in mitigation. The plaintiff is within the range when many people leave the
workforce, as it is.

[114]     The
plaintiff has provided present value tables for multipliers of $1,000 to age 65
($4,229) and to age 70 ($8,218). Doing the best I can, recognizing that this is
an exercise in assessment, and not mathematics I fix future income loss
attributable to the change in the plaintiff’s income earning capacity,
considered as a capital asset, brought on by the motor vehicle accident at
$30,000.

[115]     The
parties agree that special damages of $8,975.31 are payable. There is a dispute
over $4,797.98, claimed by the plaintiff.

[116]     The
defence submits that half of Dr. Bannerman’s treatments at $1,982.50 should be
attributed to other causes and deducted (ICBC has paid the other half as part
of the $8,975.31), and also because Dr. Levin suggested it was unnecessary. The
treatment was however recommended by a number of the therapists and medical
personnel treating the plaintiff. On balance I do not think the plaintiff’s
condition is divisible as the defence suggests. The plaintiff needed the
therapy and whether “but for” the accident it would have been required is not
possible to say. I think the same is true for the cleaning bills. They are
allowed.

[117]     I accept
the defence submission that the proof offered for Wellbutrin, Bupropion, Cipralex
and Ativan was inadequate. This requires a deduction from the claimed total of
$865.48.

[118]     The
plaintiff seeks an allowance of cost of future care. I do not think she will
require all the treatment the doctors and therapists suggest, or that, as time goes
by, the injuries suffered in the motor vehicle accident will necessarily be
causative of her ongoing needs. Against the plaintiff’s claim for $26,071, I
allow the sum of $10,000.

[119]    
Costs will be to the plaintiff unless there are reasons for further submissions.

“The Honourable Mr. Justice McEwan”