IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131122

Docket: M142602

Registry:
New Westminster

Between:

Lakshmi Nair, by
and through her
Litigation Guardian, Sreedevi Nair

Plaintiff

And

Katherine Cindric

Defendant

Before:
The Honourable Mr. Justice Skolrood

Subject
to Rule 15-1

Reasons for Judgment

Introduction

[1]            
This is a claim for damages for personal injuries suffered as a result
of a motor vehicle accident that occurred on December 23, 2009 (the “accident”)
at the intersection of 96 Avenue and Scott Road in Surrey, British Columbia. Liability
is not in issue.

[2]            
Ms. Nair claims that she suffered soft tissue injuries to her upper and
lower back and that she continues to experience pain and aggravation,
particularly in her upper back, to this day. In response, the defendant submits
that Ms. Nair suffered at best a minor soft tissue injury and that her injuries
were fully resolved by the end of 2010. The defendant says that Ms. Nair’s
ongoing complaints have been intermittent and subjective and that any symptoms
experienced after 2010 are unrelated to the accident.

[3]            
The central issue in the case is the severity and duration of any
injuries suffered by Ms. Nair in the accident.

The Accident

[4]            
Ms. Nair testified that, at the time of the accident, she was the front
seat passenger in a Ford Explorer driven by her brother. The vehicle was
stopped at a red light at the intersection when it was struck from behind by a
vehicle driven by the defendant. According to Ms. Nair, at the time of impact,
she was wearing a seatbelt and had her neck and back turned to the left to
speak to her brother.

[5]            
Ms. Nair described the impact as a “jolt” but she does not recall any
part of her body striking the vehicle as a result of the impact.

[6]            
Damage to her brother’s vehicle was minimal, with the cost of repairs
estimated to be approximately $620.00. No police or emergency personnel
attended the accident.

[7]            
The defendant driver, Ms. Cindric, testified that the accident occurred
as a result of her being distracted by children in her vehicle. She looked
behind her and then when she turned to face forward again her vehicle was close
to the vehicle in which Ms. Nair was a passenger. She said that she applied her
brakes but slid into the back of the vehicle in front of her. She described the
force of the impact as a “tap.” Ms. Cindric said that no one in her vehicle,
which included four children and her mother, was injured in the collision.

[8]            
Ms. Cindric confirmed that the damage to her vehicle, a Dodge Caravan, cost
approximately $2,800.00 to repair.

The Plaintiff’s Circumstances

[9]            
Ms. Nair was 14 years old at the time of the accident and in grade 9. At
the time of the trial, she was 18 years old and had recently graduated high
school at North Delta Secondary School. She is currently attending college and
studying forensic sciences.

[10]        
Since an early age, Ms. Nair has been involved in Indian classic dance
which is a form of dance involving intricate body movements and fast foot work.
Ms. Nair participated in the dance activity through a dance school in Surrey. Typically,
there would be one practice per week for an hour. However, each September the
dance school would put on a performance and practices would increase as the
performance approached, often to two or three practices per week.

[11]        
In September of 2012, Ms. Nair, along with two other young women,
participated in a graduation performance, known as an Arangetram, representing
the culmination of their dance instruction. The performance was held at the
Bell Centre in Surrey with about 600 people in attendance. Ms. Nair testified
that in preparation for that performance, the number of practices or rehearsals
increased to three times per week in the spring and then to five times per week
throughout the summer and leading up to the performance. More will be said
about this dance performance below.

[12]        
Ms. Nair is also a keen volleyball player. She testified that she played
volleyball for her school team beginning in elementary school and continuing
through grade 12 and club volleyball in grades 9 and 10. The school volleyball
season runs from September to November and then the club season, which is
community based, runs from December until the following spring.

[13]        
Ms. Nair played the position of libero, which is essentially a defensive
specialist who plays in the back row and is responsible for receiving serves,
passing the ball to the setter and digging spikes from the other team. Ms.
Nair’s volleyball acumen is reflected in the fact that she was named team most
valuable player for her school team in grades 8, 10 and 12, which would have
been in the years 2008, 2010 and 2012. She was also named the tournament most
valuable player at a tournament in October 2012.

[14]        
Ms. Nair also played school basketball through grade 9 but quit to
pursue her other interests.

[15]        
Ms. Nair testified that prior to the accident she regularly assisted her
mother in caring for her elderly grandmother who lives with the family. Ms.
Nair would help her mother transfer her grandmother between the grandmother’s
bed and her wheelchair and would also assist in bathing her grandmother.

[16]        
Ms. Nair also testified that she enjoyed gardening with her mother and
shopping with both her friends and her family.

[17]        
In terms of her pre-accident health, Ms. Nair testified that she had no
significant health issues. She was involved in a previous motor vehicle
accident in 2006 in which she was a back seat passenger in a vehicle that was
rear ended, however she says that she did not suffer any injuries in that
accident.

[18]        
In 2009 she saw her family physician for shin splints and he prescribed
orthotics. The day before the accident she injured her toe playing basketball
for which she also saw her family physician. Otherwise, Ms. Nair testified that
she was generally healthy and she denied ever having previous back pain. Ms.
Nair’s evidence in this regard was supported by the evidence of her mother.

Effects of the Accident

[19]        
Ms. Nair testified that following the accident, she experienced pain and
tightness in her upper back on the left side. Again, no emergency personnel
attended the accident and Ms. Nair did not seek immediate medical assistance.

[20]        
At the time of the accident, Ms. Nair was off school for the winter
break. She says that over the following days she continued to experience
tightness in her upper back and shoulders. She attempted to rest as much as
possible in hopes that the problem would resolve.

[21]        
School resumed in early January 2010 along with her extra-curricular
activities, in particular her volleyball and her dance. She testified that with
the increase in activity, she experienced an increase in her upper back pain.

[22]        
She told her mother that even sitting in the car caused her pain so her
mother arranged for her to see her family physician, Dr. Peach, in early
January 2010.

[23]        
Dr. Peach prescribed physiotherapy and Ms. Nair received 18 treatments
between January and May 2010.

[24]        
Ms. Nair says that approximately two months after the accident she
started experiencing pain in her lower back as well for which she received
physiotherapy during the January to May 2010 treatments.

[25]        
According to Ms. Nair, the physiotherapy treatments helped with the pain
in both her upper and lower back. She was also given stretching exercises to do
at home which she did regularly. She also stretched when engaged in her
recreational activities and took Advil as needed to manage the pain.

[26]        
Ms. Nair testified that throughout 2010-2012, she continued to
experience pain, predominantly in her upper back but periodically in her lower
back as well. Again, the pain was exacerbated by physical activity.

[27]        
She underwent additional physiotherapy treatments in October and
November 2010, December 2011 and April and July 2012. In March 2013, she had
four additional physiotherapy treatments by a new physiotherapist recommended
by her specialist and then, shortly before the trial resumed in October 2013,
she began massage therapy.

[28]        
In May 2013, she underwent testing for joint injury in hopes of
determining the source of her ongoing pain but that testing was negative.

[29]        
At the time of the trial, Ms. Nair testified that she continues to
experience regular pain in her upper back and periodic pain in her lower back. She
continues to stretch regularly and to take Advil as needed.

[30]        
Since the time of the accident, Ms. Nair has continued to participate in
her recreational activities. The club volleyball season commenced in early
2010, shortly after the accident, and that involved at least one practice per
week and numerous weekend tournaments. Ms. Nair was shown a January 28, 2010
entry in her physiotherapist’s clinical records that referred to her playing
six games in a volleyball tournament and she agreed that was accurate. Again,
however, Ms. Nair said that the physical activity caused her to experience
increased pain.

[31]        
Ms. Nair played club volleyball again in her grade 10 year in 2010 but
quit thereafter to focus more on school. As noted, Ms. Nair continued to play
school volleyball right through her grade 12 year and was named team most
valuable player in grades 10 and 12.

[32]        
Ms. Nair also continued with her classical dance, including a September
2011 recital and the September 2012 graduation performance. In each year, the
frequency and intensity of rehearsals would increase as the fall performance
neared. Again, Ms. Nair testified that she was able to participate in the
dancing but that it required her to stretch her back regularly and take Advil
to deal with the pain.

[33]        
Ms. Nair also testified that following the accident she was no longer
able to assist her mother in caring for her grandmother. She was not able to
help lift her grandmother to transfer her between her wheelchair and her bed nor
was she able to help bathe her grandmother. In the year leading up to the
trial, Ms. Nair resumed assisting her mother with some of the care of her
grandmother, although they now have the assistance of a care aid and that has
alleviated some of the burden on the family.

[34]        
Ms. Nair also testified that she is no longer able to go on extended
shopping trips with her family or her friends because she cannot walk or stand
for long periods of time.

Video Recording of the September 2012 Dance Performance

[35]        
There was considerable focus during the trial on Ms. Nair’s
participation in the September 2012 dance performance and its relevance to her
ongoing complaints.

[36]        
Shortly before the trial commenced, Ms. Nair produced a video recording
of the September 2012 dance performance. The video recording runs for
approximately two hours and 15 minutes and shows the entirety of the program,
excluding a 30 minute intermission.

[37]        
Counsel for Ms. Nair objected to the recording being admitted into
evidence. He cited the decisions in R. v. Maloney (No. 2) (1976), 29
C.C.C. (2d) 431 (Ont. Co. Ct.), and Cheema v. West Vancouver
(District) Police Department, [1991] B.C.J. No. 2257, (Sub. nom. Cheema
v. Ross) 82 D.L.R. (4th) 213 (C.A.), which hold that in order for video
recordings to be admissible, they must meet three criteria:

a)   
accuracy in representing the factors;

b)   
fairness and absence of any intention to mislead; and

c)     verification
under oath by a person capable of doing so.

[38]        
The primary objection raised by counsel for Ms. Nair was that the
authenticity of the recording could not be verified under oath. According to
Ms. Nair, three cameras were used to record the performance and then the recordings
were sent to India and spliced together. Absent evidence of how the splicing
was done, it was submitted that the Court could not be confident about the
accuracy of the recording.

[39]        
However, Ms. Nair gave evidence that the recording accurately depicted
what took place at the performance, other than a few spots where the sequencing
was wrong and where the music and dancing were out of sync. Further, the
recording had been shown to Ms. Nair’s medical professionals, both of whom
commented on the recording during their evidence. In the circumstances, I
determined that the recording should be admitted.

[40]        
Counsel for the parties were unable to agree on a set of excerpts of the
recording to present to the Court. Counsel for Ms. Nair pointed out that if
only excerpts of the recording were shown, for example only those portions
featuring Ms. Nair, it might leave the inaccurate impression that Ms. Nair
danced for the entire period covered by the recording.

[41]        
As a result, the entire recording was shown during Ms. Nair’s direct
examination, although portions not featuring Ms. Nair were fast forwarded
through. The recording shows Ms. Nair engaged in dance routines for extended
periods of time. The defendant submits that the recording shows Ms. Nair as
able to engage in a relatively complex dance routine with no apparent
difficulty. In response, Ms. Nair says that her dance routine was purposely
less complicated than the two other dancers, due to her back condition. Her
dance teacher, Ms. Gobynanth, confirmed that she designed a solo routine for
Ms. Nair that was less physically demanding and that gave greater emphasis to
facial expression.

[42]        
Ms. Nair also pointed out various points in her dance routines where she
says that her movements were not as fluid as the other dancers. She pointed to
several moves where she was required to bend her body to the left but where she
says she used an exaggerated head lean to cover for the fact that her ability
to bend to the left was limited. Ms. Nair also testified that she took pain medication
before the performance and during the intermission and that she took every
opportunity to stretch her back during breaks in the performance.

[43]        
Ms. Nair was cross-examined at some length about the recording. Much of
the cross-examination was concerned with taking Ms. Nair through the
performances of the other two dancers to point out apparent flaws in those
performances. The thrust of this line of cross-examination, as I understand it,
was to establish that no performance is perfect and that, from the perspective
of the casual observer, Ms. Nair was no more limited or flawed in her
performance due to her back condition, than the other two dancers.

[44]        
In the end, the viewing and re-viewing of the video recording occupied more
than one full day of trial. The treatment of the recording serves to illustrate
the potential limitations of this type of evidence. Essentially, what I took
from the recording is that Ms. Nair was able to participate in the dance
performance with no apparent difficulty, at least to a casual observer
unschooled in the technical requirements of Indian classical dance. However,
the recording tells the Court nothing of what measures Ms. Nair took to prepare
for the performance to accommodate her back, how she felt during the
performance, what she did during breaks in the performance to alleviate any
back problems, and how she felt after the performance. In other words, the
video recording provides essentially a snapshot of Ms. Nair’s functional
capacity at a particular point in time but is of limited utility in evaluating
her overall claim.

[45]        
On this point, I endorse the following comments of Mr. Justice Goepel,
as he then was, in Guthrie v. Narayan, 2012 BCSC 734 at para. 30, in
connection with photographs posted on the plaintiff’s Facebook page which were
introduced into evidence to contradict the plaintiff’s contention that the
accident had destroyed her quality of life:

30 In making these findings, I
have not overlooked the pictures posted on Ms. Guthrie’s Facebook page
concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms.
Guthrie is seeking compensation for what she has lost, not what she can still
do. The fact that she can spend a weekend with her friends in Las Vegas does
not gainsay her evidence that she continues to suffer from the aftermath of the
accident. She should not be punished for trying to get on with her life and
enjoying it the best she can regardless of the limitations imposed on her as
result of the accident.

The Medical Evidence

[46]        
Ms. Nair led evidence from two medical experts, Dr. Peach, her family
physician, and Dr. Helper, a specialist in physical medicine and
rehabilitation, who conducted an independent medical examination of Ms. Nair at
the request of her counsel.

[47]        
Dr. Peach, in his medical report dated June 17, 2011, provided the
following diagnoses:

a)     Chronic, recurrent
left side scapulothoracic muscle strain (ongoing recurrent pain due to injury
to the trapezius and rhomboid muscles on the left side of the upper to mid
back); and

b)    
Paralumbar muscle strain injury (muscle and soft tissue damage of a more
minor nature involving the muscles running along the side of the lower back).

[48]        
Dr. Peach noted that Ms. Nair has consistently complained of pain and
stiffness in the left mid and upper back region along with a more minor but
persistent pain in the lower left back region. Dr. Peach noted that Ms. Nair
had seen a physiotherapist between January and May 2010 and that she had
reported significant improvement as a result of that treatment.

[49]        
Dr. Peach wrote a second report dated April 12, 2012 in which he
essentially confirmed his earlier diagnoses, although he noted that the
paralumbar (lower back) muscle strain injury has largely resolved since the
time of his earlier report. In his second report, Dr. Peach opined that Ms.
Nair’s ongoing participation in her physical activities, notably her dance,
will serve her well for the future. He suggested as well that she would benefit
from intermittent treatment by a physiotherapist.

[50]        
Dr. Helper wrote a report dated November 2, 2012 in which he diagnosed
Ms. Nair as suffering from soft tissue mediated pain in the upper back
region, otherwise known as muscultendinous or myofascial pain, as well as soft
tissue mediated pain in the left lower back area. Dr. Helper expressed the
opinion that Ms. Nair’s upper back pain was directly related to the accident
however with respect to the lower back pain he said that it was difficult to
conclude whether it was caused by the accident or what he described as
“suboptimal biomechanics” in her lumbar region.

[51]        
The defendant did not adduce any medical evidence to counter the
evidence of Dr. Peach or Dr. Helper.

[52]        
In terms of treatment, as noted Ms. Nair initially attended
physiotherapy 18 times from January to May, 2010. She had another six
treatments in October to November 2010, three treatments in December 2011, two
treatments in April and July 2012 and a further four treatments in March and
April 2013. Ms. Nair also testified that within a month or so of the resumption
of the trial in October she commenced massage therapy on her upper back.

[53]        
In addition to this treatment, Ms. Nair says that her physiotherapists
have provided her with a course of home exercises and stretching that she does
regularly.

Findings With Respect to the Plaintiff’s Condition

[54]        
I find that Ms. Nair suffered a mild to moderate soft tissue injury to
her upper back. The evidence establishes that she has suffered pain in her
upper back since the date of the accident, which increases with physical
activity. Her condition has improved over time although she still experiences
pain and stiffness, again particularly when engaged in physical activity. Ms.
Nair has also experienced lower back pain, although both the intensity and the
frequency of the pain is less than with respect to her upper back pain.

[55]        
I also find that her back condition has had a moderate impact on Ms.
Nair’s lifestyle and recreational pursuits. The evidence established that Ms. Nair
did not miss any school as a result of the accident and that post-accident she continued
to participate fully in her primary recreational activities of volleyball and
Indian classical dance. Indeed, there was no evidence of a single volleyball
practice or game, or any dance rehearsal or performance, missed because of her
injuries. Moreover, it is apparent that she continued to excel at these
activities as reflected in the fact that she was named most valuable player of
her school volleyball team in 2010 and 2012 and that, as confirmed by her dance
teacher, she performed extremely well at her graduation dance recital in
September 2012.

[56]        
With respect to volleyball, it is worth noting that the position of
libero normally played by Ms. Nair is physically demanding in that it requires
the player to position herself low to the ground, to move laterally and often
to dive to retrieve balls spiked by the opposing team.

[57]        
 However, I accept her evidence that participation in these activities led
to an increase in back pain due to the injury suffered in the accident. I also
accept that Ms. Nair was required to take steps to alleviate the pain, such as
regular stretching and use of over the counter medications like Advil.

[58]        
It is apparent from the evidence that Ms. Nair’s personality is such
that she “soldiered on” despite the pain because of her passion for her
pursuits, in particular, volleyball and dance.

[59]        
Going forward, Ms. Nair is likely to experience periodic flare-ups of her
upper back pain, particularly when engaged in strenuous physical activities. The
expert medical evidence suggests that it is unlikely that her upper back pain
will resolve entirely.

Analysis

Causation

[60]        
It is well established that the plaintiff must prove on a balance of
probabilities that the defendant’s negligence caused or materially contributed
to an injury. The defendant’s negligence need not be the sole cause of the
injury so long as it is part of the cause beyond the range of de minimus.
Causation need not be determined by scientific precision:  Athey v.
Leonati, [1996] 3 S.C.R. 458, at paras. 13-17.

[61]        
The primary test for causation asks: but-for the defendant’s negligence,
would the plaintiff have suffered the injury? The “but-for” test recognizes that
compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is present: Resurfice
Corp. v. Hanke, 2007 SCC 7, at paras. 21-23; Clements v. Clements, 2012
SCC 32 at para 8 [Clements].

[62]        
Causation must be established on a balance of probabilities before
damages are assessed. As McLachlin, C.J.C. stated in Blackwater v. Plint,
2005 SCC 58 at para. 78:

Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is 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: [Athey
v. Leonati].

[63]        
As is also noted in Clements at para. 9, the “but for” test must
be applied in a robust common sense fashion.

[64]        
The defendant here submits that the evidence does not establish that the
accident caused the injuries alleged by Ms. Nair. Alternatively, the defendant
says that any injuries suffered by Ms. Nair in the accident resolved by the end
of 2010 and any ongoing symptoms must be the result of some other cause, in
particular her physical activities.

[65]        
In this regard, the defendant notes that the accident involved a
relatively minor impact, as reflected in the fact that the vehicle in which Ms.
Nair was a passenger suffered only minimal damage.

[66]        
The defendant cites Miller v. Darwel, 2005 BCSC 759 where the
court noted that the amount of damage to the vehicle provides some evidence of
the force of impact which in turn may be relevant to determining the extent of
any injuries suffered. The defendant submits that the relatively minor nature
of the accident is a relevant factor to consider, particularly given that Ms.
Nair’s complaints of ongoing pain are largely subjective.

[67]        
For her part, Ms. Nair cites the decision of Mr. Justice Thackray in Gordon
v. Palmer, 78 B.C.L.R. (2d) 236; [1993] B.C.J. No. 474 [Gordon] where
he said at paras. 4 and 5:

I do not subscribe to the view
that if there is no motor vehicle damage then there is no injury…Significant
injuries can be caused by the most casual of slips and falls. Conversely,
accidents causing extensive property damage may leave those involved unscathed.
The presence and extent of injuries are to be determined on the basis of evidence
given in court.

[68]        
Ms. Nair also notes that the damage to the defendant’s vehicle cost
approximately $2,800.00 to repair, which in her submission makes it clear that
the impact was more than minimal.

[69]        
As Mr. Justice Thackray noted in Gordon, the issue of causation
must be decided on the basis of the evidence led at trial. Having considered
all of the evidence, I am satisfied that Ms. Nair has established that the
accident caused the injury to her upper back. The uncontradicted evidence is
that Ms. Nair did not suffer from back pain prior to the accident and that she
has regularly experienced such pain since.

[70]        
The defendant’s position that any symptoms experienced after the end of
2010 were caused by other factors, such as her participation in her dance and volleyball
activities, is based on little more than speculation. In fact, the evidence
established that those activities exacerbated the pain that she experienced
resulting from the injuries suffered in the accident.

[71]        
With respect to her low back pain, again Dr. Helper indicated that it
was difficult to determine whether the pain was caused by the accident or
pre-existing structural defects in Ms. Nair’s back. In my view, nothing turns
on this issue in that Ms. Nair’s principal complaint relates to her upper back
and the additional low back complaints do not involve additional limitations nor
do they otherwise materially change the nature of her claim.

Non-Pecuniary Damages

[72]        
In Stapley v. Hejslet, 2006 BCCA 34 [Hejslet], the Court
of Appeal outlined the factors to be considered when assessing non-pecuniary
damages at para. 46:

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

(a) age of the
plaintiff; 

(b) nature of the
injury; 

(c) severity and duration of
pain; 

(d) disability; 

(e) emotional suffering;
and 

(f)  loss or impairment
of life; 

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

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

(h) impairment of physical and
mental abilities;

(i)  loss of lifestyle;
and

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

[73]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his injuries and
their consequences, and the plaintiff’s ability to articulate those experiences:
Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[74]        
 As noted above, Ms. Nair suffered a mild to moderate soft tissue injury
to her upper back as a result of the accident. While she also experienced
periodic low back symptoms as well, the pain and stiffness in her left upper
back has been her primary ongoing complaint. Ms. Nair claims that she will
likely continue to experience pain and aggravation from her injuries into the
future.

[75]        
I would note that there was minimal evidence about Ms. Nair’s current
and anticipated future activities. For example, she has completed her high
school volleyball career and there was no indication that she continues to play
volleyball, either competitively or recreationally. In terms of dancing, there
was mention in the evidence of a performance that she participated in
subsequent to the September 2012 recital but the evidence was otherwise vague
about any ongoing involvement in dance.

[76]        
Ms. Nair seeks non-pecuniary damages in the range of $35,000-50,000 and
she cites the following cases in support of her position:

a)   
Bjarnson v. Parks, 2009 BCSC 48

b)   
Christoffersen v. Howarth, 2013 BCSC 144;

c)    
Bartel v. Milliken, 2012 BCSC 563;

d)   
Edmondson v. Payer, 2011 BCSC 118;

e)   
Dutchak v. Fowler, 2010 BCSC 128; and

f)      Connolly
v. Cowie, 2012 BCSC 242.

[77]        
The defendant says that a more appropriate range of non-pecuniary
damages is $11,000-15,000 and cites the following cases in support:

a)   
Prasad v. Nyari, 2007 BCSC 5;

b)   
Morales v. Neilsen, 2009 BCSC 1890;

c)    
Vasilyev v. Fetigan, 2007 BCSC 1759; and

d)    Lessey v.
Canuel, 2013 BCSC 455

[78]        
In my view, many of the cases cited by Ms. Nair involve more extensive
injuries and more severe limitations on the plaintiffs’ ability to participate
in activities. Conversely, the defendant’s authorities reflect her position
that Ms. Nair’s symptoms resolved by the end of 2010 at the latest. I have
rejected that position and thus the range of damages proposed by the defendant
is unduly low.

[79]        
In assessing Ms. Nair’s claim for non-pecuniary damages, the Court must
balance two potentially competing factors. On the one hand, as noted in Hejslet,
she should not be penalized for her stoicism in continuing to pursue the
activities that she is passionate about, albeit with some pain. On the other
hand, an award of non-pecuniary damages is intended in part to compensate an
injured party for impairment of physical abilities and loss of lifestyle. Here,
the evidence is clear that while she continues to experience some pain  four
years after the accident, the impact on Ms. Nair’s lifestyle has been
relatively minimal, as reflected in the fact that she not only continued in her
activities uninterrupted but excelled at them.

[80]        
Taking all of the relevant circumstances into account, I find that a
fair and reasonable award under this head is $30,000.

Loss of Future Earning Capacity

[81]        
Ms. Nair advances a claim for loss of future earning capacity. Ms. Nair
is currently attending Douglas College in the forensic sciences program. She
testified that while she has not yet decided on a career path, she is
considering pursuing a career as a lab technician or a forensic scientist. She
is also considering law enforcement. However, she worries that these careers
will not be viable options for her because of her ongoing back issues.

[82]        
Ms. Nair testified that she is also concerned that due to her back
condition, she will have difficulty with her studies, for example if she is
required to sit for long periods of time on stools in lab classes. She also
expressed concern about her ability to function in an office job, again due to
problems she has sitting for extended periods of time.

[83]        
Notably, notwithstanding her concerns as expressed above, no evidence
was led to establish that Ms. Nair will be precluded from pursuing any specific
occupation or profession. No expert vocational evidence was adduced concerning
Ms. Nair’s occupational aptitudes or limitations and there was no expert
accounting evidence led about expected future income loss.

[84]        
In short, Ms. Nair’s claim for damages for loss of future earning
capacity is based on her concern that any ongoing back problems may cause her
difficulty in the future in respect of an as yet undefined career path.

[85]        
In Morgan v. Galbraith, 2013 BCCA 305, the Court of Appeal
reiterated the proper approach to assessing a claim for loss of future earning
capacity. Citing the Court’s previous decision in Perren v. Lalari, 2010
BCCA 140, Madam Justice Garson said at para. 53:

…in Perren, this Court held that a trial judge must first
address the question of whether the plaintiff had proven a real and substantial
possibility that his earning capacity had been impaired. If the plaintiff
discharges that burden of proof, then the judge must turn to the assessment of
damages. The assessment may be based on an earnings approach…or the capital
asset approach

[Emphasis in original]

[86]        
The courts will typically use the capital asset approach when assessing
the claim of a young person with no established career path or earnings history.
The factors to be considered under the capital asset approach are set out in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353; [1985] B.C.J. No. 31 at para 8 as
follows:

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.

[87]        
The fact that Ms. Nair had no defined career path at the time of the
accident or at the time of trial is not fatal to her claim. The court is often
called upon to consider such claims brought by children or youth who suffer
injuries before ever embarking on an employment path.

[88]        
The Court of Appeal addressed this issue in Sinnott v. Boggs, 2007
BCCA 267 [Sinnott], where Madam Justice Mackenzie at para. 16 said as
follows, citing the earlier Court of Appeal decision in Stafford v.
Motomochi,(1996), 28 B.C.L.R. (3d) 1 (C.A.):

[16] In the case at bar, Ms. Sinnott is a young person who
has not yet established a career and has no settled pattern of employment. In
such circumstances, quantifying a loss is more at large. Southin J.A. commented
on this distinction in Stafford

[42] That there can be a case in
which a plaintiff is so established in a profession that there is no reasonable
possibility of his pursuing, whether by choice or necessity, a different one is
obvious. For instance, on the one hand, if a judge of this Court were to be
permanently injured to the extent that he or she could no longer do physical,
in contradistinction to mental, labour, he or she would have no claim for
impairment of earning capacity because the trier of fact gazing into the
crystal ball would not see any possibility that the judge would ever abandon
the law for physical labour, assuming that immediately before the accident the
judge was capable of physical labour. But, on the other hand, if a plaintiff is
young and has no trade or profession, the trier of fact gazing into the crystal
ball might well consider whether the impairment of physical ability will so
limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw
v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from
obviously no impairment of earning capacity from a permanent physical
impairment, no matter how serious the impairment, to a very large potential
loss which must be based on all the circumstances of the particular plaintiff.

[89]        
In Sinnott the Court of Appeal upheld an award of damages for
loss of earning capacity of $30,000. The plaintiff there was 16 years old at
the time of the accident and 20 years old at the time of trial. She suffered
neck and shoulder pain that persisted four years after the accident and that
were expected to continue indefinitely. There was expert evidence that
established that the plaintiff would have some difficulty with strenuous or
physically demanding work, particularly if it involved lifting and carrying.

[90]        
The trial judge found that those limitations rendered her less capable
of earning an income and less marketable as an employee and accordingly awarded
her $30,000 under this head. This award was upheld on appeal.

[91]        
Ms. Nair also cites Lubke (Litigation Guardian of) v. Mattin, 2009
BCSC 709 [Lubke], where the court awarded $35,000 for loss of earning
capacity to a plaintiff who was 14 years old at the time of the accident and
who was left with chronic, intermittent low back pain that was triggered or
exacerbated by activities such as heavy lifting and bending.

[92]        
The defendant takes the position that Ms. Nair has failed to establish a
real and substantial likelihood that her earning capacity has been diminished. The
defendant notes the extent to which Ms. Nair has been able to carry on with
school and with her vigorous physical activities.

[93]        
The defendant cites Harris v. Xu, 2013 BCSC 1257 [Harris],
where Madam Justice Adair held that a plaintiff who can demonstrate a
diminishment in earning capacity but who cannot demonstrate any substantial
possibility that the lost capacity will result in a pecuniary loss is not
entitled to damages (at para. 134). Madam Justice Adair held that the plaintiff
there had not satisfied that burden and she dismissed the claim for damages for
loss of earning capacity.

[94]        
As pointed out by counsel for Ms. Nair, however, the plaintiff in Harris
was already retired at the time of the accident, had a variety of
pre-existing medical conditions and was committed to caring for her elderly
mother and it was these factors that led Madam Justice Adair to find that the
plaintiff had not demonstrated that she had suffered a loss.

[95]        
As with the claim for non-pecuniary damages, many of the authorities
relied on by Ms. Nair involve more serious injuries. For example, in Sinnott,
the plaintiff missed school following the accident and she was unable to
continue in various sporting activities in which she had been involved prior to
the accident. Further, there was evidence from a physical medicine and
rehabilitation specialist as to the plaintiff’s ongoing functional limitations.

[96]        
In Lubke, the plaintiff was more limited in his physical
activities after the accident and there was evidence of actual restrictions on
his ability to work. Other cases cited by Ms. Nair such as Bjarnson, Laroche
v. MacPhail, 2007 BCSC 1451, and Araki v. Guitard, 2012 BCSC 165,
are similarly distinguishable.

[97]        
In my view, in order to establish the requisite real and substantial
possibility of a diminishment in earning capacity, there must be an evidentiary
base that goes beyond mere speculation on the part of the plaintiff. There is
no such evidence in this case and accordingly, I find that Ms. Nair is not
entitled to damages under this head.

Cost of Future Care

[98]        
Ms. Nair submits that $10,000 is a reasonable amount in respect of her
anticipated cost of future care. This is based on the evidence of Dr. Peach that
Ms. Nair will require additional physiotherapy treatments for the next two
to three years, at an estimated cost of $1,200.00 and Dr. Helper’s evidence
that she would benefit from life-long participation in activities such as yoga,
Pilates and personal training.

[99]        
The defendant submits that both Dr. Peach and Dr. Helper noted that Ms. Nair
has done well with her home-based exercise program and that in any event she is
unlikely to take part in any proposed treatment plan. There is no basis for
this latter submission, particularly since it is apparent that Ms. Nair has
followed all treatment recommendations to date.

[100]     In my
view, while Ms. Nair’s condition has improved over time, it is likely that she
will experience intermittent bouts of pain and discomfort that will warrant
treatment, either in the form of physiotherapy or massage therapy such as what
she recently started receiving, for at least the next few years. She will also
likely continue to use over-the-counter medications to treat the pain. In the
circumstances, I think an award of $3,500.00 is appropriate under this head.

Special Damages

[101]     Ms. Nair
claims special damages of $981.10 comprising $840.00 for physiotherapy, $7.50
for rehabilitation supplies and $133.60 for mileage.

[102]     As noted
above, it is the defendant’s position that Ms. Nair recovered from any injuries
suffered in the accident by November of 2010 at the latest thus she should not
be required to recover special damages for any expenses incurred after that
date.

[103]     However, I
have found that Ms. Nair’s ongoing back problems, at least the upper back ones,
were caused by the accident and accordingly I would not limit her special
damages as proposed by the defendant. I find that the amount claimed of $981.10
is reasonable.

Summary

[104]    
In summary, Ms. Nair is entitled to the following:

[105]     Unless
there are circumstances that I am not aware of, Ms. Nair is entitled to her
costs of the action.

“Skolrood J.”