IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140129

Docket: M113748

Registry:
New Westminster

Between:

Harpreet Sendher

Plaintiff

And:

Joe Wong and
Fortune 888 Enterprises Ltd.

Defendants

– and –

Docket: M113720

Registry:
New Westminster

Between:

Harpreet Sendher

Plaintiff

And

Sandeep Nizar

Defendant

– and –

Docket: M113721

Registry:
New Westminster

Between:

Harpreet Sendher

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

– and –

Docket: M146138

Registry:
New Westminster

Between:

Harpreet Sendher

Plaintiff

And

Michelle Marie
Leith

Defendant

Before:
The Honourable Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff, Ms. Harpreet Sendher, is a 35 year old registered
nurse who works in the pediatric oncology department at Children’s Hospital in Vancouver,
B.C.  She claims damages resulting from injuries she sustained in a series of four
motor vehicle accidents.  The accidents in question occurred November
10, 2007, February 8, 2008, March 5, 2008, and May 1, 2012. Liability for
the accidents is admitted.

[2]            
She contends that the accident injuries have caused chronic headaches
and chronic soft tissue pain to several areas of her body including her neck,
shoulders, upper back and lower back. She contends that the accidents forced
her to curtail her working hours from full time to part time, and that the
injuries have caused permanent pain and disability, and a commensurate
reduction in her capacity to work, with the result that she will be unable to
work full time for the remainder of her expected career as a nurse.

[3]            
The defendants contend that the plaintiff sustained mild to moderate
soft tissue injuries to her neck, low back and shoulders in the accident of
November 10, 2007, which injuries were exacerbated in the March 5, 2008
accident. The defendants argue that the accidents of February 8, 2008 and May
1, 2012 resulted in only minor injuries, if any at all.

[4]            
The defendants contend that the plaintiff has understated the extent to
which she was already injured prior to the accidents in question, and has
overstated the extent of the injuries she has sustained and their consequences.
The defendants also contend that if the plaintiff is suffering from a
psychological condition it is not caused by the accidents in question. They
contend that the plaintiff’s evidence is not credible or reliable in general.

[5]            
The plaintiff has been involved in a total of 10 motor vehicle
accidents.  Her claims relate to four out of the five most recent accidents. 
For convenience of reference I have assigned numbers to the accidents in
chronological sequence. In some instances for the purposes of these reasons I
will describe the accidents by use of the numbers assigned. The dates of the
accidents and numbers assigned to them are as follows.

1.    
MVA #1   Fall, 1995;

2.    
MVA #2   October 29, 1999;

3.    
MVA #3   September 9, 2002;

4.    
MVA #4   February 25, 2006;

5.    
MVA #5   June 16, 2007;

6.    
MVA #6   November 10, 2007;

7.    
MVA #7   November 24, 2007;

8.    
MVA #8   February 8, 2008;

9.    
MVA #9   March 5, 2008; and

10. MVA #10 May 1, 2012.

[6]            
The plaintiff claims damages for MVA#s 6, 8, 9 and 10, which I
have underlined in the foregoing list.

[7]            
The plaintiff made legal claims arising out of
MVA #2, the 1999 accident. She says that MVA #3 (2002) and MVA #4 (2006) caused
exacerbation of the injuries she sustained in MVA #2, but although she was not
at fault she made no legal claims in respect of those two accidents.

[8]            
On February 4, 2005 she settled her legal claims
arising out of MVA #2 for $95,500 plus costs and disbursements of $10,627, for
a total of $106,257.  ICBC allocated the settlement amount as $50,000 for non-pecuniary
loss, $40,000 for future capacity loss, $2,500 for cost of future care, and $3,000
for past income loss and special damages.  However, there is no evidence that
the plaintiff herself endorsed or was aware of ICBC’s allocation of the
settlement amount.

[9]            
 The plaintiff contends that prior to the
accidents in question here (and in particular MVA #6 of November 10, 2007),
although she was still suffering from some lingering effects of the prior
accidents, she was working full time and was relatively healthy.   She contends
that the accident injuries forced her to reduce her work to part-time (.82 FTE or
82% of full time) effective September 20, 2009, and to further reduce her hours
to .63 FTE as of September 20, 2010.  Currently she continues to work at the
.63 level, which she contends is the most she can sustain.  However she says
that she loves her work and has no wish to change jobs in order to be able to work
full time.

[10]        
She claims monetary damages as follows:

[11]        
The defendants contend that the plaintiff is entitled to an award of non-pecuniary
damages of between $40,000 to $50,000, less 25% for failure to mitigate, and a
modest award for past loss of wages for a period of no more than six months
following MVA #6, to April, 2008, at which time she temporarily returned to
full time work.  They deny the validity of the plaintiff’s other claims.

II.              
Background Facts

A.             
The Plaintiff

[12]        
The plaintiff graduated from high school in Surrey,
B.C., in June, 1995.  In September 1995 she entered nursing school at UBC. She
graduated from nursing school in January 1999, and began working as a registered
nurse at B.C. Women’s Hospital in Vancouver.  Later in 1999 she began working
at B.C. Children’s Hospital in Vancouver in the pediatric oncology ward, where
she continues to work at present.  She is unmarried and has no children or dependents. 
She continues to reside in Surrey with her parents and younger brother.

[13]        
Nursing positions at the hospital are described as “lines”.  Lines are
full time (1.0) or part time.  Nurses work 12 hour shifts, but get paid for 11
hours.  Shifts are scheduled over a cycle of three rotating periods, each of
six weeks.  Full time work involves 19 shifts in the first and second six week
periods and 18 shifts in the third period.  A .82 FTE (part time) line, such as
that the plaintiff began working in September, 2009, involves working a
rotation of sixteen shifts in the first two periods, and fifteen shifts in the
third period.   The .63 line the plaintiff has been working since September,
2010 involves twelve shifts in the first two periods and 11 shifts in the third
period.  Thus, over the course of 18 weeks the plaintiff now works 35 shifts,
or about two shifts per week, leaving aside vacations.

[14]        
On September 20, 2009 the plaintiff reduced her
hours from full time to .82 FTE by taking a temporary .82 FTE line for one year
during a co-worker’s maternity leave.

[15]        
On September 20, 2010 the plaintiff further reduced her
hours from the .82 FTE line she had been working to .63 FTE.  She has continued
to work at 63% of full time to the present, and plans to continue working at
that level indefinitely.

B.             
The Accidents

[16]        
At the time of MVA #1 (1995) the plaintiff was a first year nursing
student at UBC. She was on her way to UBC when her vehicle was rear-ended on
the Alex Fraser Bridge.  She suffered pain in her neck and back that lasted
about two months. There were no residual consequences.

[17]        
At the time of MVA #2 (October 1999) the plaintiff was working as a
nurse at B.C. Women’s Hospital.  She was returning home to Surrey from
her work in Vancouver.   She was driving on Highway 91 near Knight Street at about
7:30 or 8:00 p.m.  Her vehicle was struck by a vehicle to her side, causing her
vehicle to strike the highway median.  She injured her neck, upper back, left
shoulder and left arm.  She suffered numbness and tingling into her left arm
and fingers, and headaches. Later she was diagnosed with Thoracic Outlet
Syndrome (TOS) and developed migraine headaches. Her injuries from this
accident never fully resolved. The plaintiff testified that her injuries
eventually “started to settle” and she “learned to live with it”.  She noted
particular improvement in her symptoms after she started seeing a chiropractor,
Dr. Kliem, beginning in November, 2005.

[18]        
MVA #3 occurred on September 9, 2002.  Once again the
plaintiff’s vehicle was struck from the rear on the Alex Fraser Bridge. She was
on her way to work.  She proceeded to Vancouver General Hospital for
treatment.  She again suffered neck and upper back pain, with numbness and
tingling in her arm.  The plaintiff testified that in general the 2002 accident
caused her condition to return to its 1999 status until sometime in 2003.

[19]        
Ms. Sendher suffered from headaches prior to MVA #2, but she started
suffering from migraine headaches in 2003.  She saw a neurologist, Dr. Spacey,
in early 2004.  She had previously seen a neurologist in 2000 and a
neurosurgeon in 2001.   She was prescribed Imitrex to control her migraine
headaches.  She says she learned to cope with her migraine headaches, by using
Imitrex when needed, but acknowledges she lost work due to her migraines.  She
says she could take the medication when she perceived a migraine heading coming
on and would be “good to go”. She was started on anti-depressant medication, Celexa,
in 2002.

[20]        
MVA #4 occurred on February 25, 2006.  The plaintiff was driving
on 80^th Avenue when a vehicle on her left collided with her vehicle.
There was damage to her vehicle’s passenger side.  She again suffered re-injury
and aggravation of previous injuries to her neck, back and left shoulder, TOS
symptoms, and headaches.  According to the plaintiff her injuries gradually resolved
over time and she returned to her previous condition.

[21]        
MVA #5 occurred June 16, 2007.  The plaintiff was driving on the Highway
17 exit from Highway 99 in Delta B.C., in heavy rain.  The plaintiff lost
control of her vehicle, which spun and struck a lamp standard forcefully.  There
was severe damage to her vehicle.  Emergency medical personnel and firefighters
attended.  She was taken by ambulance to Delta Hospital for treatment, although
the plaintiff says she was not treated and was discharged after only one hour. 
The plaintiff says that once again she suffered re-injury and aggravation to
her prior injuries, and now suffered from tingling feelings in her right
arm as well as her left.

[22]        
 Prior to MVA #5 she was continuing to see her chiropractor Dr. Kliem
regularly.  Following this accident she complained to him of severe constant
daily neck, left shoulder and upper back pain.  She also complained of pain in both
arms, headaches, dizziness and nausea, mood swings and depression, low back
pain, hip pain, knee pain, and foot pain, among other things. However he says
that many of her complaints were either resolved or much improved prior to MVA #6.

[23]        
Similarly, according to the plaintiff, by the time of MVA #6 her
injuries sustained in MVA #5 had substantially resolved and her general
physical status was “back to baseline”, that is, her injuries were the same as
they had been prior to that accident.

[24]        
The first accident for which the plaintiff claims compensation in these
proceedings is MVA #6 on November 10, 2007.  Ms. Sendher was heading
eastbound on Highway 91, heading home at about 9 p.m., after being out for
dinner.  She collided with Mr. Wong’s vehicle which for some reason was on
the highway across her path.  Ambulance, firefighters and police attended the
scene.  Ms. Sendher was taken to Royal Columbian Hospital in New
Westminster for treatment, and was discharged with a diagnosis of neck sprain. 
The photographs show that there was moderate damage to both vehicles, although
based upon its value Ms. Sendher’s vehicle was considered a total loss. 
She testified that the impact was more severe than MVA #5 and was a “very
forceful” impact.  She testified that she injured her neck, upper back, left
shoulder, and she suffered low back pain, and hip pain, and tingling.

[25]        
She was unable to work for the remainder of November 2007.  She tried to
work one day but managed only two hours.

[26]        
MVA #7 occurred November 24, 2007. The accident seems to have been very
minor as it was neither mentioned by the plaintiff in her evidence nor referred
to in the medical evidence.

[27]        
The plaintiff attempted a graduated return to work in December 2007 and
January 2008, but this was not successful, and she began a medical leave for
six weeks commencing February 1, 2008.  She returned to full time work in April
2008.

[28]        
 MVA #8, the second accident for which the plaintiff claims compensation
in these proceedings, occurred on February 8, 2008.  Ms. Sendher
was driving her father’s Ford Explorer Sport.  The vehicle was struck from the
rear at the intersection of Blundell Road and No. 3 Road in Richmond.  The
accident resulted in only minor damage to the vehicle’s rear bumper, with
estimated repair costs of $610.  The plaintiff described the impact as a “jolt”. 
She testified that the accident resulted in some increase in her neck and upper
back injuries.

[29]        
MVA #9, the third accident for which the plaintiff claims compensation
in these proceedings, occurred on March 5, 2008, in Surrey, on Highway 10.  The
vehicle being driven by the plaintiff was again struck from the rear, when she
was turning left into a gas station.  She described the collision as a “very
hard impact”.  Repair costs of $6,300 were incurred for her vehicle, and $12,000
for the defendant’s vehicle.  The plaintiff testified that she immediately felt
shaken.  She suffered neck and back pain, including low back pain.  She did not
go to the hospital. She drove the vehicle to her home which was only 15 minutes
away.

[30]        
The plaintiff testified that following MVA #9 her condition
progressively worsened.  She did not see the improvements in her condition she
had previously seen.

[31]        
As noted she continued to work full time (1.0) until September 2009,
when she reduced her work to .82.  The .82 position she took was a one year
position to replace a nurse on maternity leave.  As noted, commencing September
20, 2010 she further reduced her work hours to .63, which she has maintained to
trial.

[32]        
MVA #10, the fourth accident for which the plaintiff claims compensation
in these proceedings, occurred May 1, 2012.  Ms. Sendher was driving northbound
on 176^th Street in Surrey.  As she was turning right onto 88^th
Avenue her vehicle was once again struck from the rear.  She described the
collision as a “hard impact”, but not as severe as MVA#6.  The damage to her
vehicle was minor. The costs of repair were $750.  The plaintiff testified that
she injured her neck, upper and lower back, and her right side sacroiliac.
After a few weeks she also noted pain in her feet and legs.  She noticed the
right sacroiliac pain several weeks after the accident as well.  She states
that the right sacroiliac pain is felt in the right side of her lower back, and
going down into the leg.  The pain is exacerbated by activities such as work. 
The pain causes her to limp at the end of a long shift.

[33]        
The right side sacroiliac symptoms and the low back pain are
substantially new symptoms arising after MVA #10.

[34]        
In overall terms, the plaintiff says that her condition is much worse
than it was prior to MVA #6.  She says that, “I just could not get back to the
level I had before”.

[35]        
She has continued to see her chiropractor, Dr. Kliem, regularly,
which she has done since late 2005.

[36]        
Currently, the plaintiff’s primary areas of complaint are:

1.     Pain in
the lower back, and right side sacral and hip areas;

2.     Left
shoulder blade pain, neck and left upper arm pain;

3.     Pain in
the upper back, and between her shoulder blades;

4.     Arm pain
and weakness, and numbness and tingling in both arms and both hands;

5.     Headaches;

6.     Dizziness, 
nausea, problems with balance;

7.     Chest
pain;

8.     Leg pain;

9.     Pain in the
ankles and heels of both feet; and

10. Changes to her
cognitive ability, energy level, and sleep patterns, irritability, and lessened
general sense of well being.

C.             
Medical Evidence and Other Expert Evidence

1.              
Dr. Winston Gittens – Neurosurgeon

[37]        
At the request of the plaintiff’s counsel, Dr. Winston Gittens
prepared a report dated December 10, 2012, based upon his examination of the plaintiff
conducted November 30, 2012.  He testified at trial.

[38]        
I was favourably impressed by Dr. Gittens’ evidence.  He is highly
qualified and experienced.   There are no credibility or reliability issues
with respect to his evidence, which I thought was fair and balanced.  He
carefully and thoroughly reviewed the plaintiff’s very extensive clinical
records and reports relating to the entire period from 1995 to the date of his
report.

[39]        
Dr. Gittens’ central conclusion is that the plaintiff is experiencing chronic myofascial or musculoskeletal pain involving
the cervical spine, lumbar spine and shoulder girdle areas.

[40]        
According to Dr. Gittens her headaches primarily
pre-existed the subject accidents but worsened with the subsequent accidents. 
Her headaches seem to be aggravated by her neck symptoms.

[41]        
More specifically, Dr. Gittens made the following diagnoses:

1.    
Chronic pain (chronic pain disorder) mainly
back, lumbosacral and pelvic areas, neck and shoulder girdles.  Mainly
myofascial or musculoskeletal with a high probability of sacroiliac joint
dysfunction;

2.    
Chronic headaches, migrainous with muscle
contraction component;

3.    
Early cervical spondylosis probably asymptomatic;

4.    
History of non-neurogenic thoracic outlet
syndrome;

5.    
No neurological deficit either radicular or the
result of myelopathy; and

6.    
Probably mild ulnar nerve neuropathies or
neuritis, left greater than right.

[42]        
Dr. Gittens noted that based upon his review of the records and
information available to him, the plaintiff continued to suffer from injuries
related to the 1999 accident when the recent accidents occurred.  In his view
her ongoing symptoms are the result of all of the injuries she sustained in all
of the accidents since 1995.  He thought that the recent accidents had, in
particular, contributed to her lower back pain.

[43]        
He found no significant neurological injury or abnormality, although she
had symptoms suggestive of ulnar nerve dysfunction.  He suspected as well that
the series of accidents could accelerate the progression of degenerative
changes in her cervical spine, but this condition may or may not result in
symptoms.

[44]        
In his view, her symptoms are likely to persist and result in a partial
long term disability barring improvement in her condition.

[45]        
He recommended that she become involved in a self-directed exercise
program, and that she return to as much of a normal lifestyle as possible. He
suggested that she see a neurologist for advice about managing her headaches. 
He is of the view that she would benefit from an interdisciplinary or multidisciplinary
pain program, with psychological counselling. He recommended against regular
chiropractic treatment except for flare-ups of her symptoms.

[46]        
He recommended consideration of a possible change of occupation, perhaps
within the nursing field, if treatment is ineffective and if her symptoms
persist.

2.              
Dr. Shaohua Lu – Psychiatrist

[47]        
At the request of plaintiff’s counsel, Dr. Lu
prepared a report dated January 2, 2013.  He testified at trial.

[48]        
Dr. Lu noted that the plaintiff has a prior
history of chronic pain.   He states that chronic pain has a psychological
dimension, and that, as is common to patients with chronic pain, she reports “changes
to her cognitive ability, energy level, sleep patterns, [increased] irritability
and [reduction] to her general sense of well being.”

[49]        
Dr. Lu diagnoses a chronic Adjustment
Disorder, with mixed anxiety and depressive features.  Adjustment Disorder is
not considered a major psychiatric condition.

[50]        
Dr. Lu states that the plaintiff does not
have major depression.  Her psychological symptoms are perpetuated by her pain
and associated secondary loss (i.e. “decreased ability to work full time in a
highly technical job, personal activities, and personal responsibility”) and
functional changes.

[51]        
Dr. Lu states that she is at substantial
risk for development of post-traumatic stress disorder (PTSD) and major depression,
as both chronic pain and Adjustment Disorder are risk factors for major
depression. If she develops major depression, she has a considerable risk of
serious functional decline.  Moreover, future accidents could cause PTSD.  Thus,
her injuries have rendered her more vulnerable to further psychiatric
difficulties.

[52]        
Dr. Lu suggests that she should continue
with psychotherapy.  She may benefit from antidepressant medication.

[53]        
Dr. Lu states, “[i]t is important for her
to learn to maintain her work and continued level of activity despite her
pain.”

3.              
Dr. Jacqueline Purtzki – Physical Medicine
and Rehabilitation Consultant

[54]        
At the request of plaintiff’s counsel Dr. Purtzki prepared
a report dated June 29, 2012 based upon an examination of the plaintiff conducted
on June 8, 2012, quite soon after MVA#10.  She also testified at trial. The
plaintiff relies quite heavily on her evidence.

[55]        
Dr. Purtzki diagnosed:

1.     Chronic
soft tissue pain;  in Dr. Purtzki’s opinion, the recent accidents resulted
in re-injury and reactivation of musculoskeletal pain primarily involving her
neck, upper back and shoulder girdle areas which the plaintiff had suffered
from since the 1999 MVA;

2.     Chronic
headaches; the soft tissue injuries likely contribute to headaches related to
her neck injury, and cause exacerbation of migraine headaches she previously
suffered from;

3.     Thoracic
outlet syndrome, previously diagnosed;

4.     Chronic
pain disorder with depression;

5.     General
physical deconditioning; and

6.     Plantar
fasciitis resulting in foot and ankle pain.  This condition could be the result
of the recent MVA (MVA #10), or could be unrelated.

[56]        
In Dr. Purtzki’s opinion, the plaintiff’s
complaints are the cumulative result of the four accidents “superimposed on the
previous but relatively quiescent condition from her 1999 MVA.” In cross
examination she conceded that the plaintiff had chronic pain prior to 2007, in
certain areas of her body.  She also acknowledged that people with chronic pain
tend to perceive that their condition is getting worse.

[57]        
She made a number of treatment recommendations,
including (like Dr. Gittens) an interdisciplinary pain program, and she
highly recommends exercise, such as aquatic exercises, yoga or Pilates.

[58]        
In terms of prognosis, Dr. Purtzki states
that the prognosis for improvement is “extremely poor”.  In her view, although
the plaintiff would like to continue in her occupation as a pediatric oncology
nurse, she will likely have to change to more sedentary work.

4.              
Dr. O.M. Sovio – Orthopaedic Surgeon

[59]        
Dr. Sovio provided a report at the request
of defence counsel.  The report is dated August 2, 2011, and is based upon an examination
conducted on June 29, 2011.  Dr. Sovio also testified at trial.

[60]        
Dr. Sovio concluded that there was a
paucity of physical findings which would account for the plaintiff’s complaints
and her reported degree of disability.  In his view, from a physical standpoint,
there was no evidence that she would be unable to function as a nurse, working
full time.  He states that “factors other than physical” appear to be affecting
her situation.  In that respect I infer that Dr. Sovio is referring to
psychological factors, or perhaps malingering.

[61]        
Based upon his review of the medical records, Dr. Sovio
doubted the veracity of the plaintiff’s report to him that she was 100%
functional prior to the November 2007 accident (MVA #6).  Based upon his
interpretation of the records, he believed she was already partially disabled
prior to that accident.

[62]        
As he discerned no physical findings, he provided
no diagnosis or prognosis.  He suggests that no further physical attention be
directed to her condition. In his opinion further medical investigations are
unwarranted, and in particular, ongoing massage or chiropractic treatments
should be discouraged.   In his view she needs to realize that no further
medical consultation will be of any benefit, and she needs reassurance that she
has no significant physical problems.  He states she should undertake a self-directed
exercise program.

[63]        
Although Dr. Sovio’s report was based upon
his examination prior to MVA #10, there is no reason to think that accident affects
his opinions in any way.

5.              
Dr. Stephen Kurdyak – G.P.

[64]        
Dr. Kurdyak is Ms. Sendher’s family doctor.

[65]        
Dr. Kurdyak provided a report to plaintiff’s counsel dated February
10, 2010, and updated that report with further reports dated April 19, 2011 and
February 26, 2013. He also testified at trial.

[66]        
In his first report Dr. Kurdyak refers to Ms. Sendher’s
previous accidents (i.e. those prior to MVA #6 on November 10, 2007) and states
that Ms. Sendher reported that immediately prior to that accident she was
symptom free, pain free, and fully active at work and in her recreational activities. 
In his testimony at trial Dr. Kurdyak amended those statements, and said
that she reported only that she was “back to her baseline” of symptoms prior to
that accident.

[67]        
I will return to this point later on.

[68]        
In his first report Dr. Kurdyak diagnosed chronic soft tissue pain
in the context of prior thoracic outlet syndrome.  He encouraged her to
maintain her activities as much as possible and attempt to gradually return to
the gym for exercise.  He states that Ms. Sendher sustained “significant
soft tissue injuries to the neck, shoulders, back and hips as a result of the
MVA on November 10, 2007”, which were “more severe in the context of her prior
soft tissue injuries from previous MVAs as well as her pre-existing diagnosis
of thoracic outlet syndrome.”  He states that MVA #8 and MVA #9 exacerbated her
symptoms from MVA #7.  He states that he is concerned she has developed a
chronic pain syndrome, and “her prognosis for a full recovery remains
guarded”.  He states that she has been unable to sustain a full work load, and
“I am concerned that she may be unable to continue with her employment as a
nurse due to her injuries.”

[69]        
Dr. Kurdyak’s report of April 19, 2011 notes that Ms. Sendher
has seen a neurologist, Dr. Sian Spacey, on June 4, 2010, who diagnosed
“past history of migraines which have been exacerbated by the motor vehicle
accidents.”

[70]        
Dr. Kurdyak makes a diagnosis of “chronic soft tissue/myofascial
pain in neck, shoulders, lumbar area with associated headaches and extremity
numbness.”  He states:

In summary, Ms. Sendher continues
to have significant difficulty related to chronic soft tissue pain involving
her neck, shoulders, upper and lower back as well as associated tension and
migraine headaches. Due to the long duration of her symptoms her prognosis for
a full recovery is poor. Ms. Sendher has been tolerating reduced working
hours [i.e. roughly two days per week by that time] but I do not anticipate her
increasing her working hours in the foreseeable future. Her symptoms are severe
enough that she may be unable to continue her employment as a nurse due to the
physical demands of the job. Ms. Sendher has also been unable to
participate in many of her pre-accident recreational activities as a result of
her injuries.

[71]        
Dr. Kurdyak suggested possible treatments including a graduated rehabilitation
program, a pain clinic program, and/or intramuscular stimulation.

[72]        
Dr. Kurdyak’s third report, dated February 26, 2013, is quite
similar to his second report. He refers to the further accident of May 1, 2012 (MVA
#10).  Dr. Kurdyak notes that he made a re-referral to Dr. Travlos
who diagnosed “myofascial pain syndrome and evidence of right SI joint
pathology…” and that Dr. Travlos recommended an exercise program. Dr. Kurdyak
states that she tried Pilates but was forced to stop, and that she saw a
psychologist for counselling.  He notes that a cervical spine MRI showed some
degree of premature degenerative disc disease, probably caused by the
cumulative effects of the MVA injuries.  He states that her prognosis for full
recovery remains poor.  He states that she needs treatment as previously
mentioned and also ongoing psychological counselling and vocational services in
relation to the decision about her ability to continue in her current work as a
nurse.

[73]        
At trial Dr. Kurdyak recalled that he recommended Ms. Sendher
attend a pain clinic program in 2004 or 2005 but he was unsure as to what had
happened with that recommendation.  Clearly, however, the plaintiff did not
attend.

6.              
Mr. Paul Pakulak – Occupational Therapist

[74]        
Mr. Pakulak prepared a report dated July 21, 2011 based on an
assessment conducted on July 15, 2011. Following MVA #10, Mr. Pakulak
prepared another report dated January 15, 2013 based upon an assessment
conducted on December 17, 2012.  His opinions were essentially unchanged from
his first report to his second report.

[75]        
Ms. Sendher reported to Mr. Pakulak that at the time of MVA #6
in November 2007 she had made a near full recovery from the injuries she
sustained in the prior motor vehicle accidents, and had returned to most of her
activities of daily living without limitation.

[76]        
In Mr. Pakulak’s opinion, based upon the tests that he
administered, Ms. Sendher was functionally best suited for activities
requiring sedentary or light level strength.  She demonstrated physical
capacity to be employable up to a light level on a full time basis with some
restrictions.  She demonstrated the basic capacity to complete most of her
work’s physical demands, but he expected her work would result in increases in
her symptoms and reduced capacity and productivity over time.  Overall, in his
opinion, she did not demonstrate the physical capacity to work as a registered
nurse on a full or part time basis at a competitive or sustainable pace.

[77]        
He observed that despite her limitations she had in fact carried on with
her work on a part time basis.  In his view, her ability to continue with her
work will depend on her ability to manage pain and her willingness to work with
pain and have significantly reduced activity levels outside of work. She had
the capacity to complete most aspects of domestic work with limitations.

7.              
Mr. Robert Gander – Functional Capacity Evaluator

[78]        
Mr. Gander assessed the plaintiff on January 16, 2013 at the
request of defence counsel and prepared a report dated January 27, 2013. He testified
at trial.

[79]        
According to Mr. Gander, the plaintiff did not always provide full
physical efforts in the tests administered, and was reluctant or declined to
participate in some tests out of concern that she would aggravate her
symptoms.  He therefore questioned the reliability of the test results.  In his
view she was likely capable of greater functional capacity than she demonstrated
on his examination.

[80]        
Nevertheless, he believes she is capable of performing the duties of a
registered nurse within certain limitations, such as avoidance of heavy lifting
or heavy pulling and pushing. With certain accommodations therefore, in his
view she is capable of performing the demands of her current job on full time
basis.

8.              
Dr. Wolfgang Kliem – Chiropractor

[81]        
Dr. Kliem has treated Ms. Sendher since November 14, 2005.  He
provided chiropractic treatments for the plaintiff’s injuries throughout all
the subsequent MVAs in which she has been involved. He provided a report dated
June 10, 2011 and testified at trial.

[82]        
In Dr. Kliem’s view, her prior accident injuries (1999 to June 16,
2007) left her vulnerable to further physical injury, as she sustained in the
subsequent accidents.

[83]        
Dr. Kliem states that she received relief from her long standing
complaints when he began treating her in 2005, and that she improved rapidly
after suffering further injuries in MVA #4 and MVA #5, but that following MVAs
#6 to #10 she has had only temporary relief of one or two days after treatment.
She has continued to see him for treatment once every two weeks, but in his
view she needs to increase the frequency of the treatments to once or twice per
week.  In fact, according to Dr. Kliem, if she does not receive at least
one chiropractic treatment every two weeks she has a greater than 95% chance of
her condition worsening, with the potential for total disability.

9.              
Dr. Andrew Eisen – Neurologist

[84]        
Dr. Eisen prepared a report dated January 3, 2013.  The plaintiff
objected to admission of the evidence.  The Dr. Eisen’s report and
evidence was heard on a voir dire, subject to a ruling by me as to
admissibility, which I set out below.  Dr. Eisen did not examine the
patient.

10.          
Richard M. Carlin – Vocational Rehabilitation Consultant

[85]        
Mr. Carlin prepared a report dated January 22, 2013, at the
request of plaintiff’s counsel, based upon an interview and vocational tests
conducted on December 13, 2012.

[86]        
Based upon published information regarding the physical demands
of the duties of general duty nurses, together with Ms. Sendher’s
description of the demands of her work and the various medical records and
reports (other than that of Dr. Sovio), Mr. Carlin states that Ms. Sendher’s
capacity to continue working in her current role as pediatric nurse is “tenuous
at best”.  Mr. Carlin suggests that Ms. Sendher seek work that is
primarily sedentary in nature. Options include managerial or leadership
positions in the nursing field, or working in non-clinical care positions such
as performing physical examinations or working within the insurance industry as
an adjudicator or claims manager. She could increase her qualifications by
obtaining a master’s degree in nursing, which would enhance her opportunities
in advanced roles such as nursing education, research, or management.  Mr. Carlin
also considered other non-nursing career options but was not able to suggest
anything concrete, as Ms. Sendher is “focussed on remaining in the nursing
field.”   In his testimony Mr. Carlin confirmed that she was very unwilling
to alter the nature and kind of work she was doing.

[87]        
This comment accords with her testimony at trial.

D.             
Commentary regarding Medical and Expert Evidence of the Plaintiff’s
Condition

[88]        
I found Dr. Gittens’ report and opinion to be the most useful
medical evidence adduced at trial.  The plaintiff attacked the credibility of Dr. Sovio’s
evidence, but I found his evidence useful, in relation to the question of
whether there are objective physical findings of injury.  His doubts about the
veracity of the information he was given by the plaintiff accord with my own
views.  I also found Dr. Purtzki’s evidence to be useful, but she relied
more heavily than Dr. Gittens on the plaintiff’s self-reports, which are
not entirely reliable.  The plaintiff understated her pre-accident injury
status to Dr. Purtzki, in saying that prior to MVA #6 she was “almost
symptom free”.  I formed the view that for these reasons in general Dr. Purtzki’s
evidence was less reliable than that of Dr. Gittens. I formed the view
that her prognosis was somewhat overly negative, in the context of all the
evidence available to me including my evaluation of the plaintiff.  I have similar
concerns with Mr. Pakulak’s evidence, which relies heavily upon the plaintiff’s
self-reports.

[89]        
In general I accept Dr. Lu’s psychiatric opinions, although his
diagnosis likely overstated the severity of the plaintiff’s psychiatric
conditions, due to her exaggeration.

[90]        
Although the evidence of the chiropractor Dr. Kliem was useful in
terms of the treatment history and the plaintiff’s complaints from time to
time, I place no weight on his formal medical legal opinions, for a number of
reasons.  He is not a medical doctor and therefore lacks appropriate
qualifications to provide medical opinions in the full sense.  In my view he
lacked appropriate objectivity in relation to his patient, and the effects of
his treatment.  His report often overstates matters, such as his reference to
MVA#7, in common with MVA #6 and MVA #8, as “severe”, when it was very minor. 
He described most of her conditions as “severe”.  Some of his evidence had an
unrealistic air of precision, such as his comment that if she does not receive
at least one chiropractic treatment every two weeks she has a greater than 95%
chance of her condition worsening, with the potential for total disability.  I
do not accept his opinion that she would benefit from regular chiropractic
treatment. In view of the overwhelming evidence that the plaintiff would
benefit from exercise and remaining as active as possible, it is more likely
that over-reliance on passive treatments has hindered the plaintiff’s recovery.

[91]        
As noted, the plaintiff objected to admission of Dr. Eisen’s
evidence.  Dr. Eisen did not examine the patient. In its submissions, the
defence placed almost no reliance on his evidence.  As I place no weight on Dr. Eisen’s
opinions it is not strictly necessary that I decide the admissibility issue,
which was reserved.  However, the plaintiff’s objections properly go to weight
only, and therefore the report and the evidence are admitted into evidence.

[92]        
I did not find Mr. Gander’s concerns
regarding the reliability of the plaintiff’s presentation persuasive, and have
not relied upon his comments in that regard in forming my own views.

E.             
Other Evidence

[93]        
Ms. Sendher’s mother testified that Ms. Sendher lives with her
and her husband and Ms. Sendher’s younger brother in South Surrey.  Ms. Sendher
has her own suite in the house, and sometimes cooks for herself.  She is not
expected to do any housework other than cleaning her own suite.  The parents do
the shopping. The house has a pool but Ms. Sendher does not use it as she
cannot swim.  Ms. Sendher’s exercise is limited to walking her dog. She
used to go to the gym but does not do so anymore.

[94]        
Ms. Sendher’s mother testified that her daughter’s health was
fairly good in the 2006-2007 period, but her health has since deteriorated.
However she seemed quite hesitant and unsure in relation to any specifics about
her daughter’s health over the course of time.

[95]        
Nurse colleagues at Children’s Hospital have noted that Ms. Sendher
appears to suffer from neck and shoulder pain, headaches, and a right sided
limp.  She is highly regarded and competent in her work as a nurse.  There are
no formal accommodations for her in relation to her work.  Her supervisor
during 2007 and 2008 recalls observing that from 2001 onward she appeared to be
in pain at times. The supervisor observed her to be in more pain and to
struggle with her work after the fall of 2007 (i.e. coinciding with MVA #6) and
more so again after March 2008 (i.e. coinciding with MVAs #8 and #9).

[96]        
A friend from university who is a nurse testified to the many vigorous
physical activities she introduced Ms. Sendher to, and that they used to
participate in together in the past. These activities included skiing, hiking,
rock climbing, and kayaking.  She testified that by 2005 Ms. Sendher had a
limited ability to participate in a moderate hike.  Currently their joint activities
are limited to walks. Ms. Sendher is noted to walk very slowly now in
comparison with the past.

F.             
Assessment of the Evidence

[97]        
As is common with injuries of the sort the plaintiff complains of, the plaintiff’s
claims are based largely on her own subjective reports of pain.

[98]        
In such circumstances the court must take a cautious approach.  The
appropriate approach to assessing injuries which depend on subjective reports
of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R. 397
(S.C.) by McEachern C.J. In referring to an earlier decision, he said:

In Butler v. Blaylock, [1981] B.C.J. No. 31,
decided 7th October 1981, Vancouver No. B781505, I referred to counsel’s
argument that a defendant is often at the mercy of a plaintiff in actions for
damages for personal injuries because complaints of pain cannot easily be
disproved. I then said:

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

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

[99]        
In this case, in my view the plaintiff’s evidence must be treated with
some considerable caution.

[100]     A central issue is the extent to which Ms. Sendher was already
injured prior to MVA #6.  She submits that she was functioning very well and
that she was only minimally injured prior to MVA#6.  However her evidence about
this was inconsistent.

[101]     Ms. Sendher tended towards advocacy in her testimony at trial. Her
answers on cross examination were often long and argumentative, and sometimes
evasive. Although some matters were freely conceded, these tended to be in
areas where concessions were clearly necessary, such as with respect to her
well documented pre-existing health complaints.

[102]     On all of the evidence, I formed the view that the plaintiff likely
understates the degree of physical symptoms she was continuing to suffer from
prior to MVA#6. I also formed the view that she is quite self-absorbed, oversensitive,
and has a tendency to exaggerate her symptoms and disabilities.

[103]     She
testified at trial that while she suffered several years of chronic pain and
limitation of function after the 1999 accident (MVA #2), she experienced
notable improvement after 2005.  She said that by 2006-2007 she started feeling
really well, and that she was symptom free at times.  She testified that the
June 2007 single vehicle accident, where she was herself solely at fault (MVA
#5), caused only a minor setback in her condition.  She still suffered from
migraine headaches but these were infrequent.  She says that by November 2007
just before MVA #6 her neck and back symptoms had returned to the condition
they were in prior to MVA #5, which was quite good.

[104]     I had
difficulty accepting this critical evidence in the context of all the other
evidence in the case, including the medical records, and her own evidence about
the further accident injuries she suffered in MVA #4 and MVA #5.

[105]     There is a
considerable body of evidence supporting the view that prior to MVA #6 the
plaintiff was already suffering significantly from a variety of health concerns
and injuries of the same general types as those of which she now complains.

[106]     Ms. Sendher
acknowledges she was still suffering from effects of the 1999 MVA when she
settled her claims arising from that accident in early 2005.  The amount of the
settlement ($95,500 plus costs and disbursements) supports
this.

[107]     Ms. Sendher
acknowledged that she probably did in fact (contrary to Dr. Kurdyak’s evidence
at trial) tell her G.P. Dr. Kurdyak she was “symptom free” prior to MVA #6,
and that this was not entirely accurate. Although in my view she downplayed the
extent of this, she acknowledged that as of that accident she was still
suffering to some extent from the effects of her accidents stretching back to
1999 and in particular from the effects of MVA #5 which occurred on June 16,
2007.

[108]     Although
in general I accept Dr. Kurdyak’s evidence, I was troubled by the change
in his evidence in relation to this issue, which in the end resulted in his
evidence being inconsistent with that of the plaintiff.

[109]     On her
examination for discovery she testified that after MVA #5 she went to Toronto
for a month, returning in August, 2007, and she was feeling the best she had in
a long time. She was doing what she would normally do.  She said her TOS
symptoms were not bothering her at all by then, and migraine headaches were
infrequent.

[110]     However, when she saw a massage therapist, Mr. Stephen Kliem, on
August 13, 2007 (post MVA #5 and pre MVA #6), she had a long list of
complaints, including pain in her left hand and arm, right hand, forearm, arm
and shoulder, numbness in her right hand, headaches, constantly occurring
dizziness, and nausea.  She said that her work aggravated her symptoms and left
her exhausted.

[111]     It is clear that she presented herself to the massage therapist as
suffering substantially and consistently as a result of her accident injuries
including in particular the most recent MVA, MVA #5.

[112]     On October 22, 2007 she reported to her chiropractor that she had
been suffering from severe migraine headaches “for weeks.”  On October 29, 2007
she reported that her headaches were “pounding, excruciating, blinding” and of
such intensity they were causing her to pass out.

[113]     At trial she was forced to concede that her examination for
discovery evidence concerning her pre MVA #6 condition was “not exactly
accurate.”

[114]     Ms. Sendher’s
accumulated sick time of 1.5 days per month under the terms of the nurses’
collective agreement.  Unused sick time is accumulated (banked) over time.  She
could also take unpaid sick time if necessary.   Ms. Sendher had typically
taken a very large amount of time off from work due to illness.  A forensic
accountant, Mr. Gordon Milne, calculates that Ms. Sendher took paid
and unpaid sick leave of 739 hours over the three year period preceding MVA #6.
Although the policy of the hospital is that staff should not come to work if
they have even a minor contagious illness, her illness record prior to the relevant
accidents is extraordinary, and was well above the norm, as her employer noted.

[115]     During
2007, pre accident, Ms. Sendher had used virtually all available sick bank
hours and continued to take considerable unpaid sick leave. The total of paid
and unpaid sick time for roughly 11 months in 2007 pre MVA #6 was about 274
hours, or about 25 full shifts, based upon 11 hours paid for each 12 hour
shift.

[116]     At the
same time, the evidence supporting the contention that Ms. Sendher was
functioning well pre MVA #6 is unpersuasive. It rests largely on her own
uncorroborated and inconsistent testimony. The evidence of the collateral
witnesses supports that Ms. Sendher was healthy and vigorous in the
1990’s, prior to MVA #2, but not afterwards. If the plaintiff was as healthy as
she claims, then it calls her work ethic into question.

G.            
Extent of Injuries Sustained and Prognosis

1.              
Current Condition of the Plaintiff

[117]     The
medical and other evidence establishes that, in summary, the plaintiff is currently
suffering from the following conditions:

1.     Chronic
soft tissue pain, mainly to her back, particularly her low back and pelvic
areas, and to her neck, upper back and shoulder areas, and ankle and foot pain;

2.     Sacroiliac
joint dysfunction;

3.     Chronic
pain syndrome (or Chronic Adjustment Disorder);

4.     Chronic
headaches;

5.     Early
cervical spondylosis;

6.     Thoracic
outlet syndrome; and

7.     Mild ulnar
nerve neuropathy or neuritis.

2.              
Injuries Suffered in the Accidents and Prognosis

[118]     Based upon
Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 32 and 35, the
plaintiff is entitled to compensation which would, as far as money is able to
do so, put her back to the "original position" that she had prior to
the injury.  She is not entitled to be put in a better position. Thus, the
defendants need not compensate the plaintiff for any debilitating effects of a pre-existing
condition which the plaintiff would have experienced anyway, and likewise, if
there is a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendants’ negligence, then this can be taken into account in reducing the
overall award.

[119]     Prior to
the accidents in question, the plaintiff was already suffering from chronic
soft tissue pain in multiple parts of her body, chronic headaches, and thoracic
outlet syndrome.  Although she was managing to work full time, I find that she
was already suffering from chronic injuries and chronic pain syndrome which
were substantially compromising her quality of life.

[120]     However, I
accept that the recent accidents for which the plaintiff is now claiming
compensation have resulted in significant worsening of her prior condition, and
effects on more areas of her body, such as, most notably, her low back, right
sacroiliac and hip areas.  Her headache complaints were substantially
pre-existing.

[121]     I accept Dr. Gittens’
prognosis, which is generally in accord with those of Dr. Purtzki and Dr. Kurdyak.
I also accept the prognosis of Dr. Lu, who states that her psychiatric
prognosis is contingent on the clinical course of her chronic pain and her
ability to maintain her work. If her pain remains, she is at high risk of
developing major depression, or PTSD if she has future accidents.

[122]     As noted,
in Dr. Gittens’ view, her symptoms are likely to persist and are likely to
result in a partial, long term disability, barring improvement in her
symptoms.  He recommended that she return as much as possible to a normal lifestyle. 
He recommended a self-directed exercise program. He recommended other treatment
options including that Ms. Sendher see a neurologist for advice with
respect to her headaches, and an interdisciplinary or multidisciplinary pain
program, with psychological counselling.  He recommended consideration of a
possible change of occupation, perhaps within the nursing field, in the event
that treatment is ineffective and if her symptoms persist.

[123]     The
plaintiff makes somewhat elaborate arguments concerning the appropriate
analysis to be adopted in this case relating to allocation of the plaintiff’s
damages as between her pre-existing condition and her claims arising from the
accidents for which she seeks compensation.  She argues that the injuries she
sustained in MVA #2 (1999) and MVA #10 (2012) resulted in injuries that are
divisible from the injuries she sustained in MVAs #5 to #9.  She argues that
MVA #5 resulted in little or no continuing injury as of MVA #6. She submits
that 10% of her post MVA #6 and her current pain and dysfunction relates to the
MVA #2 injuries, (and, as I interpret the submissions, her injuries sustained
in MVAs #3 and #4) and the other 90% relates to the accidents for which
compensation is sought.  The plaintiff submits that to the extent if any that
MVA#5 resulted in a continuing injury (which she denies), such injuries are
indivisible from those sustained in MVAs #6 to #10 and are therefore
compensable.  She submits that of the 90% allocation of injury caused by MVAs #6
to #10, or MVAs #5 to #10, 10% is attributable to MVA #12.  In summary, the
plaintiff submits that 10% of her loss is attributable to her prior condition,
and 90% to the compensable accidents.

[124]     In my view
none of the plaintiff’s injuries are divisible in any real sense, and within
the meaning of the relevant authorities.  Rather, the plaintiff’s pre-existing
condition is simply a factor that must be taken into account in relation to
causation, and in relation to the assessment of damages for each aspect of her
claims.

[125]     The
plaintiff and defence agree there is no practical need to allocate damages
payable as between the defendants, due no doubt to the common insurer and absence
of applicable coverage concerns.

H.             
Failure to Mitigate

[126]     The
defence argues that Ms. Sendher has failed to mitigate her loss, on two grounds: (1) failure to exercise as recommended; and (2) with
respect to wage loss, failure to seek other jobs or retraining.

[127]     In my view both of these contentions have merit, but the defence has
established the grounds for a deduction on only the first contention.

[128]     A
plaintiff has an obligation to take all reasonable measures to reduce his or
her damages, including undergoing treatment to alleviate or cure injuries: Danicek
v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111, at para. 234.

[129]     The onus
is on the defendant to prove that the plaintiff acted unreasonably and that
reasonable conduct would have avoided all or a portion of his loss.

[130]     Whether
the plaintiff acted reasonably is a factual question and it involves a
consideration of all of the circumstances: Gilbert v. Bottle, 2011 BCSC
1389, at para. 202.

[131]     The defendant
must do more than show that the plaintiff failed to engage in treatment that
could or might have been beneficial:  Gregory v. Insurance Corporation
of British Columbia, 2011 BCCA 144, at para. 56.

[132]     The
defendant must prove two things:

1.     That the
plaintiff acted unreasonably in failing to pursue a course  of medical
treatment recommended to him by doctors; and

2.     The extent
to which, if any, the plaintiff’s damages would have been reduced had he acted
reasonably:  Chui v. Chui, 2002 BCCA 618, at para. 57.

[133]     Ms. Sendher
does not engage in any physical activity other than occasionally walking her
dog.

[134]     Her G.P., Dr. Kurdyak,
states in his first report of February 22, 2010 that Ms. Sendher was
encouraged to maintain her activities as much as possible and to attempt to
gradually return to the gym to exercise there.  In his testimony at trial he
confirmed that he has been encouraging Ms. Sendher to exercise and be as
active as possible for several years.

[135]     In her
report Dr. Purtzki lists “deconditioning” as one of the plaintiff’s
problem areas. She states that she would “highly recommend” core strengthening
exercises, especially aquatic exercises with swimming, yoga or Pilates. She
adds that there is no medical contraindication to starting these types of
exercises. Unfortunately, although Ms. Sendher’s home has a swimming pool,
she is afraid of water and cannot swim.  I observe that she was able to engage
in kayaking and sailing in the past, while wearing a life jacket, so it seems to
me that with reasonable safeguards the plaintiff might be able to participate
in shallow water activities, either at home or elsewhere.  She reported to Dr. Kurdyak
in 2013 that she tried Pilates but was “forced to stop”.  Dr. Gittens also
recommended that the plaintiff exercise and attempt to return to as much of a
regular lifestyle as possible. Dr. Sovio states that she needs to be
reassured she should carry on with an exercise program and recommends that she
do so. Like Dr. Gittens, he sees no benefit to long term chiropractic
treatment.

[136]     At trial,
the plaintiff said she had not read Dr. Gittens’ report. She had no
explanation as to why she had not read it, other than saying that she
understood her symptoms are not going to improve. My impression is that Ms. Sendher
is simply resigned to her situation.

[137]     I find
that the plaintiff has received very well qualified medical advice that she
should engage in an exercise program, to the limits of her ability, and she has
chosen to ignore this advice.  She has chosen instead to remain inactive and to
rely on passive treatment, most particularly chiropractic treatment, though
these treatments have not proven to be helpful for several years, and long term
chiropractic treatments are not medically advised for her except perhaps for short
term pain relief.   She has ample time to exercise or to engage in any
reasonable treatment, as she has been working part time for several years now
and has no domestic obligations or other demands on her time.  She explained
that she is afraid exercise may cause problems, and she spends her off days
recovering her energy for her next shifts. In view of the medical evidence,
this is just unreasonable.  While the doctors did not expressly opine that
exercise would improve her condition, Dr. Kurdyak, Dr. Purtzki and Dr. Gittens
all recommended exercise as a treatment. The obvious implication of this
recommendation is that exercise would have improved Ms. Sendher’s situation,
either by treating her injuries or at least reducing the severity of her
symptoms. As such, on the totality of the evidence in the context of the nature
of the plaintiff’s complaints and injuries I am prepared to reach the
conclusion that the plaintiff damages would have been reduced had she acted
reasonably by exercising as the doctors recommended.

[138]     In my view
a 20% reduction is appropriate.

[139]     The
plaintiff contends that her work as a pediatric oncology nurse is physically
strenuous and she has great difficulty in completing her shifts. As noted, Dr. Gittens
recommended consideration of a possible change of occupation, perhaps within
the nursing field, in the event that treatment is ineffective and if her
symptoms persist.  She has not yet undertaken the treatment options recommended
for her by Dr. Gittens and Dr. Purtzki.

[140]     She has
not considered taking any further training or education that might allow her to
take on more sedentary, less strenuous work such as in supervision or
administration. She does not wish to take a different job that would take her
away from her work as a bedside nurse in pediatric oncology. She explains that
she loves her work, is happy in it, and is focussed on remaining where she is.

[141]     As noted, Mr. Carlin
confirmed that she said she was very unwilling to alter the nature and kind of
work she was doing.  He suggested other, more sedentary career options for her
to consider. He suggests that she participate in vocational counselling.

[142]     While one
can have sympathy for her desire to remain in her present job and admiration
for her dedication to it, the question is whether her position is unreasonable
in the context of her claim for damages from the defendants.

[143]     Ms. Sendher
has now been working on a part time basis at .63 FTE, since September 2010, a
period of more than two and a half years pre-trial. While she has managed to
continue working, it has become obvious that this change alone has not caused
her health to improve.  I am satisfied that at this juncture, acting
reasonably, given the advice that Ms. Sendher has received, unless her
health improves (for example through treatment she has not yet undertaken), Ms. Sendher
must consider retraining to a more sedentary occupation.  To this extent I
accept the submission of the defence.

[144]     This will
be relevant to consideration of future loss of earnings capacity.

[145]     However I
am not satisfied that the defence has established the extent to which, if at
all, the plaintiff’s past loss of earnings damages would have been reduced had she
acted reasonably in relation to seeking other work, prior to trial. The
reduction in her hours as a means of adapting to her injuries was reasonable to
a point.  The plaintiff would have required considerable time for recovery and
to evaluate her condition.  It is reasonable to take time to consider her
changed circumstances and to obtain medical and vocational advice. She now has
that.   The defence provided no concrete examples of other jobs that the
plaintiff should have taken in the past, nor any evidence of alternative
earnings in such jobs.

III.            
Assessment of Damages

A.             
Non-Pecuniary Loss – Assessment

1.              
Legal Principles

[146]    
In Gillam v. Wiebe, 2013 BCSC 565, I set out the legal principles
related to assessment of non-pecuniary loss:

[68] The purpose of an award of non-pecuniary damages is
to compensate the injured person for his or her pain and suffering, loss
amenities of life, and loss of expectation of life. However, the law recognizes
that money cannot provide true restitution, because what has been lost is
irreplaceable, and in any event there is no market in which the value of the
loss can be objectively determined. The award is intended to provide solace,
not in the sense of sympathy, but in the sense that money can be used to make the
injured person’s life more endurable. Money is awarded because it will serve a
useful function in making up for what has been lost in the only way possible;
accepting that what has been lost is incapable of being replaced in any direct
way. As was explained in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33,
at para. 171:

For those losses which cannot be
made good by money, damages are to be awarded on a functional basis to the end
of providing substitute pleasures for those which have been lost. This is the
philosophical justification for awarding damages for non-pecuniary loss.

[69] Of necessity, the award must be arbitrary or
conventional. The award must be fair and reasonable, fairness being gauged by
earlier decisions: Andrews v. Grand and Toy, [1978] 2 S.C.R. 229, at paras. 87
– 89.

[70] The general principles relating to assessment of
non-pecuniary loss are set out in the decision of the B.C. Court of Appeal in Stapley
v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 [Stapley], at paras. 45
and 46:

[45] …I think it is instructive
to reiterate the underlying purpose of non-pecuniary damages. Much, of course,
has been said about this topic. However, given the not-infrequent inclination
by lawyers and judges to compare only injuries, the following passage from Lindal
v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in
Canada (1981), at p. 373). In dealing with an award of this nature it
will be impossible to develop a "tariff". An award will vary in each
case "to meet the specific circumstances of the individual case" (Thornton
at p. 284 of S.C.R.).

[46] The inexhaustive list of
common factors cited in Boyd 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).

[71] The overriding
consideration is “appreciation of the individual’s loss”. As a result, the
award will vary in each case to “meet the specific circumstances of the
individual case”: Stapley, at para. 45.

[147]      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 that experience: Dilello
v. Montgomery, 2005 BCCA 56, at para. 25.

2.              
Non-Pecuniary Loss – Quantum

[148]     The
plaintiff’s health was already significantly compromised as a result of her
prior accident injuries.  The lifestyle changes caused by the injuries are
limited due to her prior injuries. She was not engaging in the vigorous
activities she did in her university days.  Although tangible lifestyle effects
are limited I accept that she is now generally less able to participate in
work, leisure and domestic activities than she was previously.

[149]     Before the
subject accidents occurred she was able to cope with full time, demanding work
as a nurse. I accept that the exacerbation and increase in her physical
problems arising from the injuries sustained in the subject accidents has restricted
her ability to continue in her present position on a full time basis, since MVA
#6.  As Dr. Gittens states, her symptoms are likely to persist and are
likely to result in a partial, long term disability, “barring improvement in
her symptoms.”

[150]     The
likelihood of improvement in her condition is difficult to assess. She is
resigned to her condition.  She has failed to engage in recommended treatment,
most notably an exercise program. She is receiving psychological counselling,
which it is recommended she continue.  She has not yet participated in a pain
clinic program. However in my view, while it is more likely than not that her
symptoms will continue to some extent permanently, there is also a significant
probability of substantial improvement.

[151]     If her
symptoms do not improve, she will be forced to consider a change in her
career.  Her disability is far from total, and there is in my view a good
likelihood that with motivation on her part she could obtain other satisfactory
work utilizing her expertise and skills.  She should therefore be able to work
full time, should she choose to do so. This in my view lessens somewhat the
risks of depression or possible PTSD to which Dr. Lu referred.

[152]     She is not
a stoic.  She has a tendency to exaggerate her symptoms and their consequences.
This makes the severity of her symptoms difficult to assess.

[153]     She
testified that she thought her injuries were a factor standing in the way of
her wish to develop a relationship, get married and have children.  She was 30
years of age at the time of MVA #6.  Having children is not absolutely
contraindicated medically, according to Dr. Purtzki, although Dr. Purtzki
suggested that she would experience an increase in low back pain and might wish
to seek obstetrical medical advice “when the time comes”. I interpret this to
mean should pregnancy occur.   I accept that chronic pain and chronic pain
syndrome could inhibit her ability to develop a permanent relationship. 
However she had these conditions before, albeit to a lesser extent.  The
plaintiff’s evidence about this issue was quite limited, beyond the assertion.
I accept this matter as relevant to the assessment of non-pecuniary loss but in
all the circumstances I give it limited weight.

[154]     The defence submits that an award of between $40,000 and $50,000 is
appropriate, citing Sharifi v. Chaklader, 2012 BCSC 685 ($50,000); Dennis
v. Fothergill, 2012 BCSC 1510 ($40,000); Unger v. Bailey, 2012 BCSC
932 ($50,000 including loss of housekeeping); Rozendaal v. Landingin,
2013 BCSC 24 ($40,000); and Dian v. Grewal, 2010 BCSC 759 ($50,000). In Dennis
and Dian, the aggravation of pre-existing back, shoulder and neck
complaints was short-term and largely resolved at trial. In the other cases, either
the aggravation of the plaintiff’s injuries caused by the accident was not as
great (Unger) or the injuries were much less severe (Rozendaal),
or both (Sharifi).

[155]     The
plaintiff submits that an award of between $100,000 and $125,000 is
appropriate, citing Morlan v. Barrett, 2012 BCCA 66 ($125,000); Hooper v. Nair, 2009 BCSC 862
($104,500); Poirier v. Aubrey, 2010 BCCA 266 ($100,000); and Zylstra
v. Hughes, 2001 BCCA 326 ($100,000). Although these cases deal with
post-accident injuries that are similar to Ms. Sendher’s, they are
distinguishable because the plaintiffs either had no pre-existing injuries or
had pre-existing injuries which were much less serious than those afflicting Ms. Sendher
before the subject accidents.  For instance, in Morlan and Poirier,
as a result of the accidents, the previously hard-working, motivated, and
high-energy plaintiffs could no longer perform the activities and the jobs,
even part time, from which they had derived much satisfaction.  The Court of
Appeal also recognized that the $125,000 award in Morlan was “generous”. 
In Hooper, but for the accident, there was only a “small but
measurable risk” that the plaintiff’s pre-existing back problems would have resulted
in back pain.  The award in Hooper also included loss of housekeeping
capacity.

[156]     The
circumstances of this case are unique and are not sufficiently similar to any of
the authorities relied on by the parties.  I am of the view that the
non-pecuniary losses are greater than in the cases cited by the defence, but
less than in the cases cited by the plaintiff given Ms. Sendher’s
significantly compromised pre-accident condition.  Therefore, I find that an award
of $75,000 is appropriate.

[157]     After
reduction by 20% the net award is $60,000.

B.             
Loss of Earning Capacity

1.              
Past Loss of Earning Capacity

a)             
Legal Principles – Past Loss of Earning Capacity

[158]     The award for
past loss of earning capacity is based on the value of the work that the
plaintiff would have performed but for her accident injuries. The award is
properly characterized as a loss of earning capacity: Bradley v. Bath,
2010 BCCA 10 at paras. 31-32; Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106, at para. 153; X. v. Y., 2011 BCSC 944, at para. 185.

[159]     The
plaintiff need not establish the actual loss of earnings on a balance of
probabilities. What would have happened prior to the trial but for the accident
injuries is hypothetical, just the same as what may happen in the future, after
the trial.

[160]    
In Smith v. Knudsen, 2004 BCCA 613, at para. 29, Rowles J.A.
stated:

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

[161]     However
the plaintiff must establish on a balance of probabilities that there is a
causal connection between the accident injuries and the pecuniary loss claimed;
mere speculation is insufficient: Smith v. Knudsen para. 36; Athey,
at para. 27; Perren v. Lalari, 2010 BCCA 140, at para. 32;
Falati v. Smith, 2010 BCSC 465, at para. 41, aff’d 2011 BCCA 45.

[162]     Just as in
the case of the assessment of future loss of earning capacity, in the case of
past loss of earning capacity, if the plaintiff establishes a real and
substantial likelihood of the pecuniary loss asserted, the assessment of
damages to be awarded as compensation depends upon an assessment of the degree
of likelihood of the particular loss, combined with an assessment of the value
of the loss.

[163]     In cases
where it is appropriate to proceed with an assessment of the value of the loss,
s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
stipulates that a person who suffers loss of income is only entitled to
recover the net income amount as damages: X. v. Y., at para. 187; Lines,
at paras. 152-186.

b)             
Assessment – Past Loss of Earning Capacity

[164]     Based upon
calculations presented in Mr. Milne’s evidence, Ms. Sendher claims past
wage loss of $88,009 to the commencement of the trial on April 15, 2013.  The
calculation is essentially based on what she would have earned had she
continued to work full time (1.0 FTE), rather than .82 FTE and later, and now,
.63 FTE.  Mr. Milne’s calculations incorporate a reduction of 6.25% to
account for the plaintiff’s historically high level of unpaid sick leave (i.e.
sick leave in excess of the contractual allowance for paid sick leave).  The
plaintiff argues that this 6.25% reduction is commensurate with the 10% level
of pre-existing injury she argues applies.

[165]     Mr. Milne’s
report also refers to a possible additional loss or claim of $10,452 if the
plaintiff had continued to work in a higher pay category (Direct Patient Care
Level 2, instead of the plaintiff’s usual position of Direct Patient Care Level
1), but I heard no evidence about this distinction at trial and in any event no
such claim was put forward in the plaintiff’s submissions.

[166]     The
defence position is that the plaintiff’s past wage loss does not exceed about
six months’ duration. She returned to full time work in April 2008.  The
defence position is that there is no claim for past or future loss of earnings
or earning capacity following her return to full time work.

[167]     I accept
that to date the plaintiff has been rendered unable to work full time in her
present employment due to the injuries suffered in the accidents for which
compensation is claimed.  While her health was already compromised, I accept
that but for the recent injuries she would have been capable of carrying on
with full time work.

[168]     I accept Mr. Milne’s
calculation of past wage loss of $88,009, which, as noted, takes into account a
reduction of 6.25% based upon the plaintiff’s historical levels of unpaid sick
leave.  The calculation covers the period from November 10, 2007 (MVA #6) to
her return to full time work in April 2008, and her loss of income as a result
of reducing her hours in September 2009 and further reducing them in September
2010.

[169]     This claim
is reduced by 20% for failure to mitigate.

[170]     Therefore
the damages for past loss of earning opportunity are assessed at $70,400.

2.              
Future Loss of Earning Capacity

a)             
Legal Principles – Future Loss of Earning Capacity

[171]     The Court’s
essential task is to compare the likely future of the plaintiff’s working life
if the accident had not happened with the plaintiff’s likely future working
life after the accident: Gregory, at para. 32.  Insofar as
possible, the plaintiff should be put in the position he or she would have been
in but for the injuries caused by the defendant’s negligence: Lines,
at para. 185.

[172]     The
appropriate means of assessment will vary from case to case: Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353; Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260; Pett v. Pett, 2009
BCCA 232.

[173]     The
assessment of damages is a matter of judgment, not calculation:  Rosvold
v. Dunlop, 2001 BCCA 1, at para. 18.

[174]     There are
two possible approaches to assessment of loss of future earning capacity: the
“earnings approach” from Pallos and the “capital asset approach” in Brown.
Both approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measureable way: Perren
v. Lalari, 2010 BCCA 140, at para. 12.

[175]     The
earnings approach involves a form of math-oriented methodology such as:  (i)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value; or (ii) awarding the plaintiff’s entire annual
income for a year or two: Pallos; Gilbert, at para. 233.

[176]     The
capital asset approach involves considering factors such as whether the
plaintiff (i) has been rendered less capable overall of earning income from all
types of employment; (ii) is less marketable or attractive as a potential
employee; (iii) has lost the ability to take advantage of all job opportunities
that might otherwise have been open; and (iv) is less valuable to herself as a
person capable of earning income in a competitive labour market: Brown; Gilbert,
at para. 233.

[177]    
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49, at para. 101:

[101]    The relevant principles
may be briefly summarized. The standard of proof in relation to future events
is simple probability, not the balance of probabilities, and hypothetical
events are to be given weight according to their relative likelihood: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 27.  A plaintiff is entitled
to compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 at 135 (C.A.).  The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the
end of the inquiry; the overall fairness and reasonableness of the award must
be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task
of the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.).  Finally, since the course of future events is unknown, allowance must
be made for the contingency that the assumptions upon which the award is based
may prove to be wrong: Milina v. Bartsch, supra, at 79.

b)             
Assessment – Future Loss of Earning Capacity

[178]     The
plaintiff submits her loss should be assessed at $667,613 based on the
difference between full time earnings and part time (.63) earnings to age 65.  The
plaintiff submits that if her medical condition deteriorates then her loss
would be greater than this; therefore this calculation provides a reasonable
and in fact conservative assessment of her loss.

[179]     The
defence argues the plaintiff has not established that she is not capable of
working full time in her current position, and she has not established a real
and substantial possibility of a future event leading to an income loss. 
Alternatively, the award should be modest.

[180]     I accept
that the plaintiff’s capacity to earn an income remains compromised, and that
due to her accident injuries she is partially disabled, and will likely remain
so indefinitely.  As noted, I accept Gittens’ prognosis, which is that her
symptoms are likely to persist and result in a partial, long term disability,
barring improvement in her symptoms.  As Mr. Carlin states, her ability to
continue working in her present capacity is tenuous.  In her current injured
state she is not fully capable of performing strenuous occupations such as her
current position.

[181]     However, while
the prognosis for complete resolution of her symptoms is low, there is a
prospect that her symptoms could improve with time, and particularly with
treatment including exercise therapy.  There is also of course a chance her
condition could worsen.

[182]     She is far
from completely disabled. She was able to work full time for 17 months post-accident
(April 2008 to September 2009), then at .82 FTE for a further year after that,
then finally at .63 FTE from September 2010 to trial.  An improvement in her
condition could result in an ability to work greater hours. She remains highly competent
in her present position. She has career options, as noted by Mr. Carlin,
which she has so far refused to consider. That is her prerogative but the
defendants are not liable to compensate her for potentially avoidable loss, so
the fact that she has viable career options is relevant to the analysis.  It
seems likely that the plaintiff’s personal circumstances have permitted her to
suffer a reduction in her income, thus her incentive to work full time is less
than it might be if she had heavy financial obligations.

[183]     There is
no evidence before me as to earnings that would be applicable for supervisory
or managerial positions. However there is no suggestion that her income would
be reduced in such positions.  A common sense inference is that should Ms. Sendher
obtain such work, her income will likely increase.

[184]     There are
negative contingencies to consider.  The evidence establishes that many nurses
work less than full time, and there is a possibility the plaintiff would have
chosen to work part time in the future even without being injured.

[185]     The part
time lines are highly sought after.  Working part time can be valuable in terms
of coping with child care duties, for example.  The nurse can work full time
while continuing to “own” a part time line, by taking temporary full time
positions, which are not hard to come by.  The plaintiff applied for and
received a .63 FTE line in early November 2007, pre MVA #6, just to have it available
for herself in case she wanted it in future.  Despite owning the part time
line, the plaintiff continued to work full time (other than while on medical
leave) by taking a temporary full time line.  When she reduced her hours to .82
FTE in September 2009 she took a temporary one year .82 line. She says she
intended to go back to full time work thereafter but her health did not allow
it. Instead she reverted to the .63 line she already owned.

[186]     In my view
the plaintiff’s submissions very significantly overstate the value of her loss
of earning capacity.  It is not reasonable to assume that she will work at 63%
of a full time position with a commensurate reduction in earnings until
retirement. She is capable of working full time in other positions, perhaps
with retraining. She might have chosen to reduce her hours in any event, or
other life circumstances could have caused a loss of income.

[187]     Some rough
guidance can be obtained by considering the plaintiff’s pre-accident earnings,
and also by considering the amount of her proven loss in the five and one-half
years prior to trial. She earned $68,300 for full time work in 2006.  Her loss
pre-trial is established at $88,009, leaving aside the reduction for failure to
mitigate.  Thus, $225,000 would represent roughly three years of full time
earnings at $75,000, and 2.5 times her loss over the course of 5.5 years pre-trial,
including several months where she was not working at all.

[188]     In my view
$225,000 represents a fair and reasonable assessment of the value of the
plaintiff’s loss of future earning capacity.

C.             
Costs of Future Care

[189]     The plaintiff
claims for the costs of participation in a pain clinic program, and for costs
of continuing psychological treatment. The parties agree that a pain clinic
would cost $12,000 and that psychological counselling costs are approximately
$175 to $200 per hour.  Lately the plaintiff has been seeing a psychologist, Mr. Owen
James, for treatment. Dr. Lu advises that she should continue with
psychotherapy treatment, but does not state for how long.  I have no evidence
from Mr. James.  The plaintiff claims for the costs of psychotherapy of
$2,100 to $2,400 per year, to the end of her life, for a total present value
award of $48,274.80 to $55,171.20.

[190]     Notably,
the plaintiff does not claim for future chiropractic treatment costs. The
evidence is that such treatments are not helping the plaintiff and are not
medically indicated.

[191]     The
defence disputes the justification and reasonableness of any award for cost of
care.

[192]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her to her pre-accident condition in so far as
that is possible. The award is to be based on what is reasonably necessary on
the medical evidence to preserve and promote the plaintiff’s mental and
physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).

[193]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of
future care; and (2) the claims must be reasonable: Milina, at
para. 84.

[194]     Future
care costs must be justified both because they are medically necessary and they
are likely to be incurred by the plaintiff.  If a plaintiff has not used a
particular item or service in the past it may be inappropriate to include its cost
in a future care award:  Izony v. Weidlich, 2006 BCSC 1315, at para. 74.

[195]     Each case
falls to be determined on its particular facts: Gilbert, at para. 253.
An assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.

[196]     The
plaintiff’s testimony about whether she would attend a pain clinic was somewhat
equivocal but generally positive.  The defence disputes the efficacy of such
treatment, but the fact is that Dr. Kurdyak, Dr. Gittens and Dr. Purtzki
have all recommended it.  I am satisfied that the treatment and the cost is
justified and reasonable. Therefore the cost of a pain clinic at $12,000 is
allowed.

[197]     The pain
clinic is multidisciplinary or interdisciplinary treatment and therefore includes
psychological counselling, as mentioned by Dr. Gittens, so there is clearly
some overlap between that cost and the cost of psychological counselling.

[198]     There is
no evidence that the plaintiff would benefit from psychological treatment of
indefinite or long term duration.  Given the allowance for the pain clinic
treatment, in my view one year is reasonable.  Therefore $2,400 is allowed for
this purpose.

[199]     The total
award for cost of care is therefore $14,400.

D.             
Loss of Homemaking Capacity

[200]     The
plaintiff claims for the cost of two hours of housekeeping assistance per week,
at $24 per hour, or $2,500 per year, for her lifetime, resulting in a present
value claim of $57,470.

[201]     The
award is for the loss of capacity: O’Connell v. Yung, 2012 BCCA 57, at para. 67.

[202]     The plaintiff
bases the claim on the evidence of Mr. Pakulak and Dr. Purtzki. 
Mr. Pakulak stated that Ms. Sendher demonstrated the capacity to
complete most aspects of household cleaning in her current residence provided
she can pace herself; however, if she were to move into her own home or have
children she would likely experience increased difficulties with the work and
would require some assistance with the more physically demanding household
chores. Dr. Purtzki states that Ms. Sendher may require some ongoing
help with heavy household duties and that if she is to have children she would require
additional household and childcare help.

[203]     Clearly these opinions are qualified and hypothetical.  The
plaintiff has no household duties at present.  Moreover, these comments assume
that the plaintiff’s condition will not improve. The plaintiff’s claim is based
upon the remainder of her life. In my view a negative contingency would be
appropriate as the plaintiff could require domestic assistance in future in any
event.

[204]     In my view a reasonable assessment of the value of lost housekeeping
capacity in this case is $10,000.

E.             
Special Damages

[205]     An injured
person is entitled to recover the reasonable out-of-pocket expenses they
incurred as a result of an accident.  This is grounded in the fundamental
governing principle that an injured person is to be restored to the position he
or she would have been in had the accident not occurred: X. v. Y., at para. 281;
Milina, at para. 78.

[206]     The
plaintiff claims $14,982 as special damages.  Of this $2,463.15 is for massage
therapy, $12,104.15 is for chiropractic treatments, chiefly with Dr. Kliem,
and the rest is for physiotherapy and medications.

[207]     The
plaintiff had already been seeing Dr. Kliem for years prior to the subject
accidents, and had also obtained massage therapy.  It became fairly clear quite
some time ago that the chiropractic treatments were not providing anything
beyond temporary relief.  In my view proper compensation for expenses
reasonably incurred as special damages caused by the subject accidents would be
$6,000.

IV.           
Conclusion and Summary

[208]     The
plaintiff is awarded the following amounts:

[209]     The
parties have liberty to apply, within 60 days, with respect to statutory
deduction and set off issues if they are unable to agree.

[210]    
The plaintiff is entitled to costs, unless there are matters of which I
am not aware.  The parties have liberty to apply with respect to costs if
necessary, provided again that the application is filed within 60 days.

“Verhoeven J.”