IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130930

Docket: M111971

Registry:
Vancouver

Between:

Camelia Mezo

Plaintiff

And

Graeme W. Malcolm
and Tyla R. Kanigan

Defendants

Subject
to Rule 15-1

Before:
The Honourable Madam Justice Russell

Reasons for Judgment

Introduction

[1]            
The car belonging to the plaintiff, Ms. Camelia Mezo, was hit in a
rear-end accident by a Dodge Ram truck on Highway 1 on November 23, 2010 (the
“Accident”).

[2]            
At the time of the Accident, the plaintiff was three months pregnant.

[3]            
The plaintiff’s 2000 Ford Taurus was written off as a result of the
damage suffered in the collision.

[4]            
The defendants admit that the plaintiff suffered injuries as a result of
the collision.

[5]            
Liability for the Accident is admitted.

Issues

[6]            
The issues in this lawsuit are as follows:

A.       What is
the appropriate amount to be awarded for non-pecuniary damages?

B.       What is
the appropriate amount to be awarded for loss of future earning capacity?

C.     What is
the appropriate amount to be awarded for loss of housekeeping capacity?

D.     What
amount should be awarded to the plaintiff’s mother for her in-trust claim?

E.      Is the
plaintiff entitled to an award for the cost of future care? If so, what amount
should be awarded?

F.      What
amount should the plaintiff be awarded as special damages, if any, for her
travel expenses in attending medical appointments and treatment and for
over-the-counter medications in the absence of receipts?

[7]            
There is no claim for past wage loss.

[8]            
The defendants do not assert the plaintiff failed to mitigate her
damages.

[9]            
In this trial, there were three witnesses with the surname “Mezo”. They
are the plaintiff, Camelia Mezo, her mother, Aurora Mezo, and the plaintiff’s
husband, Florin Mezo. To avoid confusion, I will refer to these witnesses by
their first names.

The Plaintiff

[10]        
Until April 29, 2013, Camelia was an executive assistant with Niradia
Enterprises (“Niradia”), a property management company which manages and owns Single
Room Occupancy buildings, sports bars, and a hotel.

[11]        
Her duties were varied and challenging.

[12]        
By all accounts, her employer was also challenging. He would
occasionally arrive late in the day and insist that his staff remain working as
long as he did notwithstanding that they had started their work day at the
regular time.

[13]        
Camelia would, on occasion, have to leave to go to a medical appointment
and she felt he was annoyed.

[14]        
Camelia, for the first time in her life, was dismissed without cause the
day before the trial. She was not given any explanation for her termination
other than that it was not about her work, it was more about a personality
conflict with her employer.

[15]        
The defendants attempted to call the Human Resources Manager who
terminated the plaintiff but could not serve a subpoena in a timely way and
were apparently advised by the employer in no uncertain terms that she would
not attend without a subpoena and even if a subpoena were served, his counsel
would want to examine it carefully, thus ensuring a delay in the Manager’s
attendance at court.

[16]        
Therefore, the only evidence the Court has about the employment of the
plaintiff is that Gerry Nichele, the employer, appeared displeased if Camelia
had to leave for a medical appointment during the unpaid overtime hours he
required his staff to work from time to time.

[17]        
This lack of cooperation with the Court, while admittedly based on
comments from counsel without the presence of Mr. Nichele, indicates a
deliberate willingness to interfere with an important civic duty. However, this
description appears consistent with that of the employer described by the
plaintiff:  someone who had no hesitation in demanding extra hours of his
employees without any overtime payment to them. Perhaps those employees will
review the Employment Standards Act of British Columbia to see if its
protection and enforcement provisions are useful to them.

Pre-Accident Condition of the Plaintiff

[18]        
The plaintiff is 38 years old. She was born in Romania and emigrated to
Canada in 1993 when she was 17 years old.

[19]        
She spoke no English when she arrived in Canada and before she could
finish high school she took English as a Second Language courses. However, this
did not hold her back.

[20]        
She finished high school in 1996 and began attending Simon Fraser
University where she completed three years toward a Bachelor of Science degree.
Her career aims changed and she moved to the British Columbia Institute of
Technology, where she continued studies in computer science and worked at the
same time.

[21]        
She began employment in hardware and software troubleshooting and web
design until she began attending CompuCollege, where she obtained a two-year
business diploma so she could work with people instead of computers.

[22]        
Camelia began her job as an Executive Assistant with Northland
Properties (“Northland”) in February 2009. She was successful at Northland,
where she had a wide range of responsibilities. She left Northland for Niradia
in July 2012 because it paid better, was closer to home and looked as if it
offered greater opportunity.

[23]        
The plaintiff was very active as she grew up in Romania. She was a
swimmer, a Latin dancer, and a tennis player from the time she was small. In
Canada, she continued to be active and played basketball and tennis, went
hiking and skiing, attended a gym, and did yoga. She and her family enjoyed
skiing as a family group and had season’s passes at Cypress and spent ski
vacations at local mountains.

[24]        
Swimming at the Canada Games Pool was a regular activity for her. She
swam at least three to four times a week and sometimes every day.

[25]        
The new house she and her husband purchased in Surrey in March 2010 has
an enclosed swimming pool and she used the pool extensively.

[26]        
She and her mother attended an aerobics step class at Centennial Centre
before the Accident. She and her husband had memberships with Dynamics Fitness.

[27]        
Florin is an avid hiker and is very fit. The two of them have hiked trails
around Whistler Mountain and have done the eight-hour (round trip) Garibaldi
Lakes hike, which she described as arduous and for accomplished hikers only.

[28]        
The house in Surrey required extensive renovation. She and Florin took
out all the carpets, refinished the floors, removed wallpaper and redid the
walls, cleaned the house throughout including the windows and skylights,
painted throughout, renovated the outside gardens which had not been looked
after for 20 years and were extensively overgrown with high hedges, scrubbed
the exterior cobblestones, and cleaned the ponds on the property. The plaintiff
did all the yard work. The plaintiff’s father gave her a hedge trimmer as a
gift. She performed all this work while “on vacation”.

[29]        
Inside the house, she was responsible for cleaning the 2,400 square foot
house. Florin cooked and helped with the grocery shopping. She did the rest of
the household labour.

[30]        
The plaintiff was born with her right leg slightly shorter than her left
leg. She had remedial surgery in Romania when she was a child. Since then she
has occasionally had low back pain for which she attends a chiropractor who
does “adjustments” on her back.

[31]        
No damages for injury to her lower back are sought in this action.

[32]        
Following the hard work on the house renovations her hands and joints,
particularly her knees, were sore. When she saw her doctor, Dr. Klein, he
referred her to a rheumatologist. At this time, August – September 2010, she
was planning to become pregnant and wanted to be certain she was healthy. By
the time of her consultation with the rheumatologist, she was feeling better
and the rheumatologist made no recommendations about her condition.

[33]        
Aside from the wear and tear accumulated with growing older, the
plaintiff did not suffer from any serious pre-existing conditions before the
Accident and she enjoyed an active lifestyle.

The Accident

[34]        
The plaintiff was on her way home from work when she was sitting in
traffic on Highway 1 at approximately 6:00 p.m. The traffic had come to a stop
when she was rear-ended by the Dodge Ram truck driven by the defendant, Ms. Tyla
Kanigan, but owned by the defendant, Mr. Graeme Malcolm.

[35]        
After the collision, the trunk of her Ford Taurus would not close, the
exhaust pipe was dragging and the brakes were grinding metal on metal. The
impact was sufficient to result in damage to the frame of the Ford Taurus and
it was written off.

[36]        
There is no issue with the plaintiff’s use of her seatbelt or headrest
and no argument of contributory negligence.

[37]        
No emergency vehicles attended the scene.

Post-Accident Condition of the Plaintiff

[38]        
Immediately following the impact, the plaintiff felt shocked and
disoriented. She was concerned for the safety of the baby she was carrying. Her
head hurt and she felt nauseated. Her hands would not stop shaking.

[39]        
She woke up with a headache the next day and her nausea continued. Her
neck hurt on both sides and she felt pressure. She arrived at work at her usual
start time but was not feeling well. Her then-employer, Northland, sent her to
a walk-in clinic across the street from her office.

[40]        
Because she was pregnant she was not able to undergo the recommended
X-rays or take ibuprofen to relieve the pain of her headaches.

[41]        
After some internet research she found a family physician, Dr. Jay Martens,
and he recommended massage therapy and the use of a chiropractor. He also said
she could take Tylenol for her headache pain but she remained concerned for the
safety of her baby and she declined to take any pills.

[42]        
She missed three days of work that week and left work at noon on Monday
of the following week.

[43]        
By this time, her headaches were severe and continuous, her neck still
sore on both sides, but worse on the right side, with restricted range of
motion, her left collarbone was very sore from the seatbelt, she felt spasms in
her upper back between her shoulder blades and on her right side, and her left
arm was numb. The nausea also continued.

[44]        
The plaintiff used a topical remedy, Voltaren, as well as ice, hot
showers and lying down on a rubber ball between her back and the floor.

[45]        
The headaches were particularly severe shortly after the Accident and
she felt as if the pressure inside her head moved from back to front and pushed
her eyes out. They became worse as the day progressed and her fatigue worsened.
Lying down eased the pain as did a cold compress on her forehead.

[46]        
The constant nausea lasted two to three weeks.

[47]        
The plaintiff attended at Affinity Massage Therapy, as recommended by Dr. Martens,
on November 26, 2010.

[48]        
In December 2010, she went to her chiropractor, Dr. Barry Sauser.

[49]        
Her sleep was interrupted sufficiently that she moved to another bedroom
to avoid waking her husband.

[50]        
At work she did her best to carry on as before, but she could not sit in
front of the computer because it made her dizzy and nauseous and the letters on
the screen seemed to shake. She took breaks, stretched, and tried to move a
little after every hour or so for 10 to15 minutes.

[51]        
Northland was an accommodating employer and provided the plaintiff with
a footrest and an ergonomic pillow for her spine and changed the position of
her computer screen. It was also flexible with respect to her work hours. The
plaintiff made up any time she missed by leaving early by working on Saturdays.
She was able to maintain her workload. Her sick time was not deducted from her
salary and she does not claim any past wage loss.

After the Accident, the plaintiff was unable to perform the
same household work she had done in the past. Her husband took over carrying
the laundry to the laundry room and she would put the clothes into the machine.
He did the vacuuming as the plaintiff was unable to move the vacuum in the
repetitive motion required. She did not do dishes as bending over the sink
caused her neck and upper back pain. Cleaning the bathrooms was beyond her
capacity at this point.

[52]        
Her mother did most of the housework that Florin did not do during the
time up to arrival of the baby. She would come to assist the plaintiff once or
twice a week. Before the Accident, the plaintiff’s mother did not come to the
house to do housework.

[53]        
As the plaintiff’s pregnancy progressed, she was no longer able to
attend for massage therapy, one of the few ways she had achieved some pain
relief. It became too uncomfortable for her to lie down on the massage table. The
chiropractic help could continue because the sessions were short and the
chiropractor could open his table to accommodate her pregnant belly.

[54]        
Her last treatment from Affinity Massage Therapy before her delivery was
on January 18, 2011.

[55]        
The plaintiff went on maternity leave on May 1, 2011 and had her
daughter on May 19, 2011.

[56]        
During the time after the Accident and up to her delivery, the plaintiff
continued to swim, perform the exercises and stretches suggested by her health
care providers, and did modified yoga almost daily.

[57]        
By the end of her pregnancy, she was feeling substantial relief from the
symptoms caused by the Accident, however, following the natural birth, and over
the next two to three months she began to feel the upper back pain return and
increase.

[58]        
She could not comfortably lift her baby or hold her to breast feed. Her
neck hurt from bending down over the baby and her headaches returned.

[59]        
To breast feed the baby, she had to have the baby delivered to her,
support her with a pillow and then hold her sufficiently close to allow the
baby to latch on to the breast. Holding the position was painful for the
plaintiff and the baby would lose the breast and the process would have to
begin again.

[60]        
The plaintiff then attempted to pump breast milk and feed the baby with
a bottle. However, her supply of milk dwindled and she gave up breast feeding
after about one month. This was a source of disappointment to her.

[61]        
In addition to problems feeding the baby, she also had difficulty with
lifting her from her bassinet, lifting her on to her change table, and bathing
her. She could change the baby once she was on the change table but could not
lift her up to it.

[62]        
Holding the baby with one hand in the bath while washing her with the
other caused her collarbone pain to flare. The plaintiff did not bathe the baby
on her own for many months. Her mother would come every day and would help with
not only the housework but all the baby care which the plaintiff found painful.

[63]        
Use of the car seat for the baby also presented problems for the
plaintiff. She could not lift the baby into the car seat. Putting the car seat
into the car was painful for her. To take the baby for her initial checkups
with the doctor was not something she could do alone and her mother came with
her.

[64]        
When the plaintiff’s upper back and neck pain recurred following the
birth of the baby, her doctor recommended X-rays. He also suggested she
consider breast reduction surgery to assist with the upper back pain.

[65]        
As the plaintiff testified, she was willing to try anything short of
snake charmers to reduce her pain.

[66]        
She had the surgery on January 24, 2012 and took two days off to
convalesce.

[67]        
There does not appear to be any evidence that the upper back pain suffered
by the plaintiff was reduced by the surgery. However, her low back pain,
unrelated to the Accident, was somewhat improved.

[68]        
Her efforts to take steps to recover from her injuries are demonstrated
by her willingness to have surgery.

[69]        
It is her and her husband’s evidence that she had not considered breast
reduction surgery prior to the Accident.

[70]        
Florin helped with the baby and with housework but his job as a chef at
Beach Grove Golf Club required him to work 10-hour days, five days a week.

[71]        
On his two days a week free from work, he was able to give the
plaintiff’s mother a break while he helped the plaintiff.

[72]        
When her replacement did not work out, the plaintiff returned to work at
Northland in January 2012, before her maternity leave expired.

[73]        
On her return to work, her parents looked after the baby. Florin would
take the baby to their home and the baby would stay with them for three to four
days a week. I infer from the evidence that Florin would look after the baby
for one to two days a week on his days off. The plaintiff would pick up the
baby on Friday after work and she and the baby would spend the weekend
together.

[74]        
Florin left for Ireland in December 2012 to take up a 1-year position as
a sous-chef in a 5-star hotel located in Ashford Castle, a job which offered
substantial professional development and prestige.This left the plaintiff on
her own with a baby and a large house to maintain while still suffering symptoms
arising from the Accident.

[75]        
She rented out the Surrey house and in January 2013 she moved to a small
apartment in the same apartment building in which her parents live. She spends
a great deal of time with them and they continue to assist her with childcare,
making meals, and cleaning and maintaining her apartment, since many
housekeeping tasks remain difficult for her.

[76]        
She continues to have massage therapy, has recently begun acupuncture
which has helped to reduce pain, does yoga, and she follows her own exercise
program recommended by her therapists.

[77]        
Her doctor also recommended physiotherapy but when it did not achieve
any results the plaintiff did not continue with it.

[78]        
Her counsel has listed her current symptoms as follows:

a) Left Arm and Collarbone: Her collarbone and
left arm have now recovered.

b) Headaches:  She continues to get the
headaches, although they are now intermittent. She . . . gets really bad ones
three or four days per month and another three or four days per month she finds
them coming on in the afternoon. She relies on Advil and Tylenol to help.

c) Neck: The pain is still constant, although
it is of variable intensity. Her range of motion is still restricted. She
testified that shoulder checking remains difficult. Unexpected movements
aggravate her neck pain. She relies on Advil and Celebrex to provide some
relief.

d) Upper/Mid Back:  This area remains sore and
sore to touch. She still experiences the sensation of numbness and pins and
needles. It is still constant. She tries to relieve it through stretching,
massage therapy, and acupuncture.

e) Sleeping:  She
is still awakened by her symptoms although not as frequently as before.

[79]        
Her husband reports that her energy level is reduced and she has had mood
changes since the Accident.

[80]        
She has been unable to return to her previous level of recreational
activities.

[81]        
I am satisfied that the plaintiff’s evidence was believable, credible
and unchallenged on cross-examination.

[82]        
The plaintiff’s mother, Aurora, gave evidence on her behalf. She stated
that before the Accident, she and the plaintiff participated in many activities
together, including skiing, aerobic step classes, and swimming. These joint
activities ceased following the Accident.

[83]        
Before the Accident, Aurora would help her daughter once in a while. For
example, she helped when the plaintiff and Florin moved to the Surrey house.

[84]        
After the Accident and before the birth of her granddaughter, Aurora
would go to the house to do housework once a week for two to four hours
depending on her own tasks. She would vacuum, mop floors and do dishes.

[85]        
After the baby arrived, Aurora was at the Surrey house almost every day
to help with everything:  housework, cleaning, gardening, and especially care
for the baby. She noticed that any activity the plaintiff had to do where she
had to bend over was painful for her.

[86]        
Aurora would go to the house at 2:00 or 3:00 p.m. and would stay four to
five hours. However, if the plaintiff was not feeling well, she would stay
overnight.

[87]        
As the baby grew older, Florin could help with her when he arrived home
from work at about 10:30 p.m. and Aurora could go home.

[88]        
She estimated her weekly time to help at the plaintiff’s home at around
20 hours a week for the period from May 2011 to January 2012.

[89]        
When the plaintiff returned to work, her parents assumed the major care
for the baby. Even when the plaintiff was with the baby on the weekend, Florin
would drive her and the baby over to spend the day with her parents.

[90]        
By the time Florin went to Ireland, the plaintiff was slightly more able
to lift the baby but Aurora was still assisting her a great deal.

[91]        
Now that the plaintiff lives in the apartment building, Aurora keeps the
baby every day and occasionally overnight. The evidence was that if the baby
was not in bed by the time the plaintiff got home from her treatments, she
would demand to be picked up and it would hurt the plaintiff’s back. To avoid
this, Aurora would put the baby to bed and that would mean keeping her
overnight.

[92]        
Aurora is still helping the plaintiff with her housework in her
apartment and vacuums and does dishes for her. She tries to assist the
plaintiff with those activities which cause her back pain when she does them
herself.

Expert Evidence

The plaintiff’s expert: Dr. Mark Adrian

[93]        
Dr. Mark Adrian is a physical medicine and rehabilitation
specialist with special expertise in the subspecialty of spine, musculoskeletal
and sports medicine in which he trained at the Mayo Clinic. He is also
certified in the subspecialty of pain medicine by the American Board of
Anesthesiology. He is what is popularly known as a physiatrist.

[94]        
Currently he is on staff at Vancouver General Hospital and is a Division
Member of the Department of Physical Medicine and Rehabilitation at the
University of British Columbia. His practice has emphasis on the assessment and
management of spine, musculoskeletal and musculoskeletal-related neurologic
disorders.

[95]        
He saw the plaintiff on July 11, 2012 for the purpose of providing an
independent medical examination.

[96]        
Dr. Adrian diagnosed the presence of mechanical neck and mid back
pain as well as cervicogenic (related to neck) headaches.

[97]        
He opines that the plaintiff’s pain comes from structural damage to the
tissues of the spinal column. As I understand it, this translates as soft
tissue injury but located in the tissues of the spinal column such as the
intervertebral discs, the spinal joints, the spinal muscles, and ligaments.

[98]        
These injured tissues cause pain, both acute and chronic, when they are
stressed by activities that involve awkward neck positioning, such as sitting,
stooping, reaching, and lifting.

[99]        
Dr. Adrian was able to reproduce the plaintiff’s symptoms by using
physical examination maneuvers that physically load the tissues of her spinal
column. As he noted:

. . . the physical examination
findings support the symptoms that Ms. Mezo experiences. Ms. Mezo
suffers from chronic mechanical neck and mid back pain.

[100]     He states
the headaches are caused by neck pain.

[101]     When
considering the kind of force suffered by the plaintiff in the Accident, he
states that the physical reactions caused by a rear-end impact can cause a back
and forth movement which places abnormal forces to the spinal tissues of the
neck and injury resulting in pain to the neck and mid-back.

[102]     Dr. Adrian
opines that that the plaintiff’s current mechanical neck and mid back pain
symptoms are causally related to the motor vehicle accident.

[103]     Because of
the lapse of 20 months since the Accident and the continuing pain suffered by
the plaintiff, it is Dr. Adrian’s view that the persistence of the symptoms
indicate a poor prognosis for full functional recovery. He states Ms. Mezo
will likely be permanently partially disabled as a result of her injuries.

[104]     He says
that prolonged sitting, static or awkward positioning involving her spinal
column, heavy or repetitive lifting, reaching or impact activities will likely
continue to cause her difficulty because they place physical forces on the
painful and injured spinal tissues in her neck and mid back. His opinion was
not seriously challenged in cross-examination.

The defendant’s expert: Dr. Paul Bishop

[105]     Dr. Bishop
is a qualified chiropractor, a medical doctor and the holder of a Ph.D. in
pathology examining the cause of intervertebral disc degeneration in the human spine.
He is a Clinical Professor in the Division of Spine, Department of Orthopaedics
at the University of British Columbia and a staff physician in the Combined
Neurosurgical and Orthopaedic Spine Program at Vancouver General Hospital. He
currently holds the Endowed Research Professorship in the Non-operative Spine
Care at the International Collaboration on Repair Discoveries National Spring
Institute. He has been the Deputy Editor of The Spine Journal and has
held and holds many academic positions focused on the investigation of spinal
pain.

[106]     He is part
of the non-operative spine outpatient clinic at Vancouver General Hospital and
has been since 1999. In this capacity, he sees 12 to 15 patients a day for a
minimum of three days a week. Despite his impressive qualifications and
experience, for the purpose of the B.C. College of Physicians and Surgeons, he
is a General Practitioner because there is no spine subspecialty.

[107]     He saw the
plaintiff for an independent medical examination on behalf of the defendants on
December 18, 2012 and prepared an addendum on March 8, 2013 after reviewing a
pre-Accident cervical X-ray and a post-Accident MRI performed in January 2013.

[108]     It is Dr. Bishop’s
unequivocal view that all soft tissue injuries heal within 12 to 16 weeks after
a motor vehicle accident. Therefore, he says that the plaintiff’s symptoms outside
this time range cannot be soft tissue injuries related to the trauma of the
Accident. He makes no qualification to this statement.

[109]     He points
to the plaintiff’s treatments by a chiropractor and massage therapist before
the Accident and says that she had pre-existing symptoms at the time of the
Accident. However, he does not make reference to the fact that the plaintiff
suffered occasional pain in her lower back, rather than the pain she reported
in her mid-back and neck after the Accident.

[110]     He also
agreed he could have been mistaken about the plaintiff’s attendance at a
massage therapist before the Accident and she could have said she occasionally
went to a spa where she would have a massage as part of her beauty treatment.

[111]     Put
shortly, he says that the plaintiff may indeed suffer increased pain with an
increase in activity levels. He does not say why this is so and neither does he
explain the source of the pain she suffers.

[112]     In his
physical examination of the plaintiff, he did not discover any non-organic
signs. He did not deny that she suffers pain.

[113]     On
cross-examination, he agreed he could not diagnose the source of the
plaintiff’s pain.

Analysis of the expert evidence

[114]     I found Dr. Bishop
to be rigid in his point of view and unable to do other than say that if the
plaintiff’s pain continued long past the 12 to16 month time limit for the
healing of soft tissue injuries, the pain could not come from soft tissue
injuries. In my view, this begs the question of why the plaintiff continues to
suffer pain from activities which place stress on her spine. That her injuries
are not objectively demonstrable does not mean she does not suffer pain.

[115]     Dr. Bishop
agreed in cross-examination that there can often be soft tissue injuries in
patients where the pain endures more than 16 weeks but which are not
objectively determinable.

[116]     The
plaintiff’s pre-existing low back pain has not been a factor in the injuries
stemming from the Accident.

[117]     I did not
find Dr. Bishop’s report helpful.

[118]     Dr. Adrian
did find a causal link between the Accident and the plaintiff’s continuing
symptoms. However, he also said it was unlikely the plaintiff would demonstrate
any sustained improvement.

[119]     Despite
this prognosis, the plaintiff’s left arm symptoms have continued to improve to
the point that at trial, she no longer has numbness and tingling in her left
arm. I take this to mean that there is some possibility of improvement in the
plaintiff’s condition over time but that it is likely she will continue to
suffer from the injuries caused by the Accident.

[120]     I prefer
the evidence of Dr. Adrian to that of Dr. Bishop as it was a more
nuanced opinion and appears to be supported by the plaintiff’s account of the
changes in her physical state as a result of the Accident.

Causation

[121]    
The plaintiff must satisfy the Court, on a balance of probabilities,
that but for the defendant’s negligent act, she would not have sustained her
injury. The “but-for” test is the general test for factual causation. The
negligent conduct must be substantially connected to the injury. This test was
most recently affirmed and set out in Clements v. Clements, 2012 SCC 32
at paras. 8-10:

[8] The test for showing causation is the “but for”
test. The plaintiff must show on a balance of probabilities that “but for”
the defendant’s negligent act, the injury would not have occurred. Inherent in
the phrase “but for” is the requirement that the defendant’s negligence was necessary
to bring about the injury ― in other words that the injury would not have
occurred without the defendant’s negligence. This is a factual inquiry. If the
plaintiff does not establish this on a balance of probabilities, having regard
to all the evidence, her action against the defendant fails.

[9] The “but for” causation test must be applied in a robust
common sense fashion. There is no need for scientific evidence of the precise
contribution the defendant’s negligence made to the injury. See Wilsher v.
Essex Area Health Authority, [1988] A.C. 1074 (H.L.), at p. 1090,
per Lord Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.

[10] A common sense inference of
“but for” causation from proof of negligence usually flows without difficulty.
Evidence connecting the breach of duty to the injury suffered may permit the
judge, depending on the circumstances, to infer that the defendant’s negligence
probably caused the loss. See Snell and Athey v. Leonati, [1996]
3 S.C.R. 458. See also the discussion on this issue by the Australian courts: Betts
v. Whittingslowe (1945), 71 C.L.R. 637 (H.C.), at p. 649; Bennett
v. Minister of Community Welfare (1992), 176 C.L.R. 408 (H.C.), at
pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R.
53; Roads and Traffic Authority v. Royal, [2008] HCA 19, 245
A.L.R. 653, at paras. 137-44.

[122]     The trial
judge must adopt a “robust and pragmatic approach to determining if a plaintiff
has established that the defendant’s negligence caused her loss”: Clements
at para. 46. At the same time, causation need not be established with scientific
precision: Snell at 328. Where causation is established by inference
only, it is open to the defendant to argue or call evidence that the injury was
inevitable: Clements at para. 11.

[123]     The
plaintiff must also establish legal causation, which arises once factual
causation is proved. Legal causation is examined at the damages stage of the
analysis. The plaintiff’s injury must be a reasonably foreseeable consequence
of the defendant’s negligence. Reasonableness is assessed by examining whether
it was foreseeable that a person of ordinary fortitude would suffer the injury
at issue: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paras. 12,
18. It is a basic principle of damages in tort law that the defendant need not
put the plaintiff in a better position than his original position and should
not compensate the plaintiff for any damages he would have suffered anyway (the
crumbling skull rule): Blackwater v. Plint, 2005 SCC 58 at para 78. At
the same time, the defendant must take his victim as he finds him (the thin
skull rule): Blackwater at para. 79.

[124]     In this
case, where liability is admitted, I do not understand the defendants to take
the position that the plaintiff did not suffer any injury as a result of their
negligence.

[125]     The issue
on causation focuses on whether the defendants are liable for the extent and
duration of the injuries she suffered.

[126]     The
defendants say that the plaintiff has continued to demonstrate improvement over
time and to state, as Dr. Adrian does, that her prognosis for full
recovery is poor ignores the evidence.

[127]    
The defendants point to the following improvements to support their
position:

a)         her neck is still sore
but not as bad as before, with only occasional flare ups;

b)         her left arm pain and
numbness has resolved by the date of trial;

c)         the pain in her left
collarbone flared up twice in 2011 but seems to have resolved since the birth
of her daughter;

d)         her mid-back is still
sore to the touch and tingles but seems to be somewhat better than it was;

e)         her headaches which initially
occurred daily, are now more intermittent and severe headaches come 3-4 days a
month and she has an additional 3-4 days a month where the headaches develop in
the afternoon.

f)          she still has problems sleeping but instead of
the insomnia happening every night, it has decreased to 3-4 nights a week.

[128]     The
plaintiff has proved both factual and legal causation:  but for the Accident
she would not have suffered the injuries she did. However, I agree with the
defendants’ submissions that her prognosis is not quite as gloomy as it was
when Dr. Adrian examined her.

[129]     It is my
view that there may well continue to be some slow progress in her healing and
some hope her headaches, insomnia, pain in her mid-back and her neck will
continue to diminish. There is no certainty she will ever have the same
physical capability she had before the injuries she suffered in the Accident,
but the extensive assistance she has received from her mother has no doubt
contributed to the improvement she is feeling over the last six months. Her
mother’s generous help has allowed the plaintiff to avoid the activities which
exacerbate her pain and, in my view, has helped in the healing process.

Damages

A. Non-pecuniary Damages

[130]    
Non-pecuniary damages compensate the plaintiff for pain, suffering, loss
of enjoyment of life and loss of amenities. This type of compensation must be
fair to all parties. This is done in part by comparing the circumstances at
issue with other cases of similar circumstances. A non-exhaustive list of
relevant factors for the court to consider when determining an appropriate award
for non-pecuniary loss was developed by Madam Justice Kirkpatrick in Stapley
v. Hejslet, 2006 BCCA 34 at para. 46:

[46]      The inexhaustive list of common factors … that
influence an award of non-pecuniary damages includes: 

(a)        age of the plaintiff; 

(b)        nature of the injury; 

(c)        severity and duration of pain; 

(d)        disability; 

(e)        emotional suffering; and 

(f)         loss or impairment of life; 

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

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

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

[131]     However, a
non-pecuniary damages award will ultimately turn on the particular
circumstances of the case.

[132]     The
defendants take the position that the plaintiff’s ability to continue to go to
work following the Accident should be considered in the determination of the
award of non-pecuniary damages. While this is undoubtedly a relevant factor,
there are several other factors to consider in this determination.

[133]     The
plaintiff was a young, fit woman at the time of the Accident.

[134]     The plaintiff’s
pregnancy at the time of the Accident added to the fear she felt and impacted
on her ability to achieve any pain relief. I accept her evidence that she chose
to endure the pain rather than risk damage from medication to her unborn child.

[135]     After the
baby’s birth, her neck, back and arm pain interfered with her ability to care
for her baby. She lost the opportunity to breastfeed her baby after a short
period of time. For a conscientious contemporary mother, this was a serious
loss.

[136]     Her
ability to lift the baby was compromised due to her back and neck pain. One of
the joys of motherhood is to hold the infant close. Losing this opportunity is
another serious loss. Having her mother enjoy this pleasure no doubt was
helpful to the baby’s wellbeing, but it does not replace the disappointment
suffered by the plaintiff.

[137]     The
athletic lifestyle enjoyed by the plaintiff, Florin, and the plaintiff’s mother
is now beyond the ability of the plaintiff due to her injuries. It is all well
and good for Dr. Bishop to say that it is likely her pain will increase
with more activity but that does not mean re-injury, but the continuing pain
does and will interfere with her activities. Not every accident victim is able
to ignore pain to the extent Dr. Bishop seems to suggest is desirable.

[138]     I agree
with Dr. Adrian that she will continue to suffer some degree of disability
for the foreseeable future.

[139]     Fortunately,
her relationship with her husband does not seem to have suffered, but she did
move to a separate bedroom to avoid disturbing his sleep. I can infer from that
circumstance that there would be some interruption in their time together.

[140]     I have
considered the authorities on non-pecuniary damages provided to me by both
parties. For the plaintiff: Tarzwell v. Ewashina, 2011 BCSC 1464;
Noon v. Lawlor, 2012 BCSC 545; O’Rourke v. Kenworthy, 2009
BCSC 1277; Guthrie v. Narayan, 2012 BCSC 734; and Lim v.
Anderson, 2012 BCSC 263.

[141]    
For the defendant: Coutakis v. Lean, 2012 BCSC 970;Sekhon
v. Nguyen, 2013 BCSC 281; and Dakin v. Roth, 2013 BCSC 8.

[142]     Not
surprisingly, in the cases cited by the plaintiff the non-pecuniary damages
awarded are greater than in the cases cited by the defendants.

[143]     The
plaintiff submits that she should receive non-pecuniary damages in the range of
$70,000 to $80,000, excluding damages for lost housekeeping capacity and loss
of future earning capacity.

[144]     The
defendants submit that the proper range of non-pecuniary damages is $35,000 to
$45,000.

[145]     Taking
into account the circumstances of this case, I award the plaintiff the amount
of $60,000 for non-pecuniary damages.

B. Loss of Future Earning Capacity

[146]     The
plaintiff has proved herself to be a hardworking, diligent employee who, with
an accommodating employer, can continue to work at an office job. As long as
she is able to move around and stretch and has access to an ergonomic set-up
for her workspace, it appears she can, at least at this point, continue to
work.

[147]     We do not
know why she was terminated by Niradia just before trial but the fact that from
time to time her employer required overtime of all employees and appeared
unhappy when she was occasionally unable to work late due to therapy
appointments to deal with her injuries, suggests this may have been a factor in
her termination. The assurance the termination had nothing to do with her work
in my view relates more to an employer wishing to avoid liability for wrongful
dismissal or a human rights complaint than it does to providing an honest
explanation for the decision to terminate her.

[148]     The
defendants argue that she has failed to prove that she has suffered a loss of
earning capacity from the fact that she did not miss much work after the
Accident. However, Dr. Adrian’s report states that the plaintiff is
probably permanently partially disabled as a result of the injuries she
suffered in the Accident. Dr. Adrian also lists the functions affected by
the plaintiff’s injuries and they include most of the movements one would
expect to make in a job that requires sitting in front of a computer.

[149]     The
plaintiff seeks an award of $50,000 to $100,000 under this head of damages. The
defendants argue that no award should be made.

[150]    
There is general agreement on the principles that govern awards made
under this head. Walker J. made a useful summary in Ruscheinski v. Biln,
2011 BCSC 1263 at paras. 114-116:

[114]    For an award under this head of damages to be made,
Ms. Ruscheinski must demonstrate a “substantial possibility that lost
capacity will result in pecuniary loss”: Perren v. Lalari, 2010 BCCA
140 . . . Steward v. Berezan, 2007 BCCA 150 . . . A future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Perren at para. 30.

[115]    If the plaintiff discharges the burden of proof,
then he or she may prove quantification of that loss by an earnings approach or
by a capital asset approach: Perren  at para. 32; . . .

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

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

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

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

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

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

[151]     In
Perren, Garson J.A. distinguishes between the two approaches to the
assessment of future loss of earning capacity. She states that where there is a
demonstrated pecuniary loss which can be quantified, although it is still a
loss of capacity which is being quantified, it is a measure of the real
possibility of loss.

[152]     She goes
on to say that where a loss of future capacity is proven, but it is not
measurable in a pecuniary way, then the second approach, the loss of a capital
asset, is an appropriate way to analyze such a loss.

[153]    
She sets out the principles governing the determination and measure of
an entitlement of an award for loss of income earning capacity at para. 32
of Perren:

A plaintiff must always
prove . . . 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
. . . or a capital asset approach . . . The former approach will be more useful
when the loss is more easily measurable . . . The latter approach will be more
useful when the loss is not as easily measurable. . . A plaintiff may indeed be
able to prove that there is a substantial possibility of a future loss of income
despite having returned to his or her employment . . .

[154]     This
plaintiff must now find employment with the fact of her injuries and her need
for accommodation put before a potential employer. It is generally the case
that employers prefer to hire employees without a history of injury and who do
not require ergonomic aids and the flexibility to move around during their work
day.

[155]     It is also
the case that as the plaintiff ages, it is more than likely she will be less able
to cope with the fatigue which accompanies pain.

[156]     The long
hours she put in at Niradia may be beyond her capability and, unlike at
Northland, she may not have an employer who allows her to make up for missed
hours on Saturdays.

[157]     While it
is the case that the plaintiff did not call any fellow employees as witnesses
to her diminished capacity, I accept the expert evidence of Dr. Adrian
that notwithstanding her diligence and strong work ethic, she is likely
partially disabled by her injuries. At the same time, there is evidence of some
improvement in the plaintiff’s condition.

[158]     I find
that the plaintiff is less marketable in the competitive labour market and has
likely lost the ability to take advantage of all job opportunities which might
otherwise have been available to her had she not been injured. And we know that
she must now search out new employment.

[159]     I find she
has established a real and substantial possibility that in the future she will
not be able to maintain the earnings she enjoyed pre-Accident and this is due
to her injuries. She has been rendered less capable overall from earning an
income from all types of employment.

[160]     As has
been noted in many cases, the measure of this loss is not a mathematical
calculation, it is an assessment. Reilly v. Lynn, 2003 BCCA 49 at para. 101.

[161]     At the
plaintiff’s last job she earned approximately $50,000 per year, plus a bonus.
Based on expert evidence, there is a substantial possibility that she will have
a permanent partial disability that will reduce her future earning capacity.
However, this loss is likely to be minor over time as the plaintiff is diligent
and has indicated that she wants to continue working.

[162]     I award
the plaintiff $25,000 for loss of future capacity. I have based this assessment
on half of her previous salary, which will give her partial compensation over
the next two years. In awarding this amount, I have taken into account the
contingency that her condition may improve over time and it is a true unknown
what her actual loss will be.

C. Loss of Housekeeping Capacity

[163]     The
parties are agreed that some amount should be awarded for the fact that the
plaintiff is no longer able to perform the housekeeping tasks that she used to
perform.

[164]     In keeping
with the character of the plaintiff as an extremely hard working person, she
did all the cleaning in a 2,400 square foot house and all the gardening on a
large property before the Accident.

[165]     Since the
Accident in November 2010, she has been unable to do more than minimal tasks in
the house and she was forced to move out of the house into a small apartment
close to her parents. Even so, she does little housekeeping because vacuuming,
dusting, washing dishes, and carrying the laundry basket all cause pain in her
neck and back.

[166]     The Court
of Appeal has said that damages for the loss of housekeeping capacity may be
awarded even though the plaintiff has not incurred any expense because housekeeping
services were gratuitously replaced by a family member: Dykeman v.
Porohowski, 2010 BCCA 36 at para. 28, as cited in X. v. Y., 2011
BCSC 944 at para. 246.

[167]     Here of
course, the services were replaced mostly by Aurora and to a much lesser degree
by Florin.

[168]     I note
that X. v. Y. goes on to say that recovery may be allowed for both the
future loss of the ability to perform household tasks as well as for the loss
of such abilities prior to trial. As is the usual rule, the amount of
compensation awarded must be commensurate with the plaintiff’s loss (at para. 246).

[169]     Were it
only to compensate for Florin’s assumption of tasks, I would not award anything
but a nominal amount. However, Aurora took over all of the work of the
plaintiff within the house and still performs housekeeping duties for her so
that she does not hurt herself.

[170]     While the
plaintiff’s capacity is improving, she is still limited by her injuries from
performing functions in the house which place stress on her spine.

[171]     I award
the plaintiff $10,000 under this head of damages.

D. In-Trust Award to Aurora Mezo

[172]     Aurora’s
help to the plaintiff is a shining example of motherly devotion. She has
stepped in to take over the burden of housework, gardening and, since the birth
of the baby, the childcare in the plaintiff’s life.

[173]     It is my
view that the care given by Aurora has benefited the plaintiff and thus,
reduced her damages, by allowing her to avoid activities which exacerbate her
pain.

[174]     As a
result, in the situation where Dr. Adrian postulated there was little hope
for sustained improvement in the plaintiff’s condition, the plaintiff has shown
some improvement.

[175]     The
evidence is that post-Accident and before the birth of the baby, she came once
or twice a week to clean the plaintiff’s house. This equates to about four
hours a week over the 25 weeks after the Accident and before the baby arrived. She
had not helped her daughter in this way before the Accident.

[176]     After the
birth of the baby, in May 2011, she was there for many hours almost every day
and often overnight. She not only maintained the house and gardens, she looked
after the plaintiff and performed all the care services required for the baby
because the plaintiff could not feed the baby comfortably, could not lift her
and thus could not change or bathe her without assistance. She accompanied the
plaintiff to the doctor because the plaintiff found it painful to try to put
the baby and the car seat into and out of the car. This daily care lasted from
May 2011 to January 2012 when the plaintiff returned to work.

[177]     Thereafter,
Aurora looked after the baby at her apartment a minimum of three to four days a
week and overnight and continued to assist with housework at the Surrey home
and to look after her daughter and the baby at her apartment on weekends after
Florin drove the plaintiff over.

[178]     After
Florin left for Ireland in December 2012, and the plaintiff moved to the
apartment beside her parents’ apartment, Aurora continued to look after the
baby while the plaintiff worked and often overnight.

[179]     To put a
monetary value on the time and work she gave to her daughter would result in a
very large award, but I am limited by the notion of what would be reasonable in
the circumstances: Farand v. Seidel, 2013 BCSC 323 at para. 100,
citing Bystedt (Guardian ad litem of) v. Bagdan, 2001 BCSC 1735.

[180]     The
maximum value of the services rendered is the cost of obtaining the services
outside the family and these should be services over and above what would be
expected. I have used this general value and have made deductions according to
the contingencies I have noted.

[181]     Since she
also had her own business and job to carry on with, she sacrificed any hope of
leisure time to care for her daughter and her granddaughter. This sacrifice was
necessitated by the injuries from the Accident. It is clear that had she not
given of herself to help her daughter and granddaughter, it would have been
necessary for the plaintiff to hire a nanny and a housekeeper.

[182]     The defendants
argue that the childcare given by Aurora after the plaintiff returned to work
should not factor into any in-trust award. I understand the logic of this
argument but it is the case that having 24-hour childcare available to the
plaintiff allowed her to return to work sooner than she would otherwise have
done and to maintain her employment at Northland and later at Niradia where
long hours were from time to time required. It is the rare childcare situation
which would provide such seamless coverage.

[183]     From the
time of her return to work, the plaintiff would have had to find childcare. I
understand that it would not have been possible to duplicate the daycare
provided by her parents but I am of the view that even if the plaintiff had
been physically able to care for her baby after she returned home from work,
her parents would still have helped to look after the baby. Therefore, I will
only allow childcare expenses for the period from the birth to the plaintiff’s
return to work since it is reasonable to assume the plaintiff would have been
able to look after her baby without assistance during this time were it not for
her injuries.

[184]     The
plaintiff also claims as part of the in-trust award for the travel expenses
incurred for her mother to travel back and forth to her Surrey house. I am
prepared to award some amount for this travel but I will not award the entire
amounts claimed because the plaintiff’s mother, as a devoted grandmother, would
undoubtedly have undertaken many trips to the plaintiff’s house after the birth
of the baby.

[185]     There will
also be a small in-trust award for the continued help Aurora gives to the
plaintiff with housekeeping.

[186]     In total,
and with deductions for the contingencies I have noted above, the in-trust
award to Aurora will be $21,900. This award is composed of $4,000 for the help
given for the period post-Accident to the birth; $15,000 for the period from
the birth to the plaintiff’s return to work; $1,400 for the period from the
return to work to present for housekeeping assistance only; and $1,500 for
reasonable transportation expenses.

E. Cost of Future Care

[187]     The
plaintiff takes Celebrex, a non-steroidal anti-inflammatory prescribed by her
doctor. The cost of Celebrex is $85.74 for 100 capsules. She uses one a day for
a total of 30 a month which comes to approximately $26.00 per month. She is
likely to continue to need the Celebrex for the foreseeable future.

[188]     She also
uses one Tylenol daily and one Advil at night for pain relief at an estimated
cost of $30.00 per month.

[189]     The
acupuncture sessions which have afforded her some relief cost $50.00 each and
she took one session a week for five to six weeks before trial. Her evidence is
that the acupuncture helps with the pain and she intends to continue to use it
from time to time.

[190]     She has continued
to attend for massage therapy although instead of two sessions a week, she now
goes for one session weekly which costs $52.50.

[191]     She
continues to do yoga at home and to utilize the exercises she learned through
sessions with a kinesiologist. There will be no award for these exercises.

[192]     Her
counsel estimates that she is spending approximately $270 per month to address
her injuries, not including the cost of acupuncture.

[193]     The
plaintiff claims $10,000 for the cost of future care.

[194]     The
defendant says that no award should be granted under this head. I find this
position unreasonable given the evidence that the plaintiff continues to suffer
pain from her injuries and will likely do so for the future. She is entitled to
seek relief from that pain. Her loss of future capacity would be exacerbated
were she not able to continue treatment for her injuries. The tortfeasor should
pay the cost of this treatment.

[195]     I find she
has demonstrated medical justification for her claim for cost of future care
and the claim is reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33.

[196]     I agree
with the plaintiff’s submission that her use of medications, massage therapy
and acupuncture will taper off over the next few years. I award her $7,500 for
the cost of future care since there is the possibility that her condition will
continue to improve and her need for these services and medications will
decline.

F. Special Damages

[197]     The
parties have come close to reaching agreement on special damages. So far, the
amount of $4,825.88 is agreed by the defendants to be appropriate recompense to
the plaintiff.

[198]     The
defendants resist the amount of $72.80 for the cost of the surgical bra
required by the plaintiff following her breast reduction surgery. As I have
already found that the surgery was undertaken by the plaintiff to attempt to
alleviate her upper back pain resulting from the Accident, the surgical bra is
part of her reasonable expenses arising from the defendants’ admitted
negligence. This amount will form part of her special damages.

[199]     During the
trial, the defendants stated that they would not pay for the over the counter
medications used by the plaintiff since she did not have receipts for them. They
do not deny that she took Tylenol after the birth of the baby when she stopped
breast feeding but insist that she ought to have saved her receipts.

[200]     Were the
amount claimed for pain relief medications taken by the plaintiff unreasonable,
I would not award the plaintiff any amount in the absence of receipts. However,
the defendants have already profited from the fact that she would not take any
medications for the 25 weeks from the Accident to her delivery. I find the
estimate of $30 per month for the over the counter pain relief claimed by the
plaintiff for the 21 months to trial from the time she finished breast feeding
to be extremely reasonable. I award her an additional $630.

[201]     I also
accept the additional prescription receipts recently located by the plaintiff
for an additional amount of $192.00.

[202]     The
defendants also refuse to pay the plaintiff’s transportation expenses. There
are few receipts for the plaintiff’s transportation and parking costs for
attendances at doctors’ appointments, massage and physiotherapy appointments,
and acupuncture. The plaintiff estimates $250.00 under this head. She gave
evidence she drove to her appointments so it is clear that some transportation
costs would be incurred. I will award $200.00 as a token amount in the absence
of supporting documents.

[203]     Special
damages will be awarded in the amount of $4,825.88 as agreed plus the amounts
of $72.80, $630.00, $192.00 (less $63.62 for the mistaken December estimate for
prescription costs) and $200.00 for a total of $5,857.06.

Summary

[204]     I award
the plaintiff a total of $130, 257.06 in damages under the following headings:

[205]    
Costs will be in the cause and subject to Rule 15-1. If the parties wish
to make submissions on costs, they may make arrangements with the Registry to
arrange time before me.

“L.D. Russell J.”

_______________________________________

The
Honourable Madam Justice Loryl D. Russell