IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140304

Docket: M112067

Registry:
Vancouver

Between:

Jessica Glesby

Plaintiff

And

Kendall MacMillan

Defendant

Before:
The Honourable Mr. Justice Baird

Reasons for Judgment

Introduction

[1]            
This is an assessment of damages relating a motor vehicle accident on
April 24, 2009 at the intersection of Dunbar Street and West 29^th
Avenue, Vancouver B.C. Liability has been admitted.

[2]            
The plaintiff was a back seat passenger in a vehicle stopped at a red
light when it was struck from behind by the defendant’s vehicle. The plaintiff
was wearing a seatbelt. She did not strike anything inside the vehicle. Both
vehicles were damaged but could be driven from the scene.

[3]            
As a result the plaintiff claims to have pain and discomfort in her
neck, shoulder and upper back which remain unresolved over four years later. These
injuries, she says, have impacted negatively on her quality of life and
compromised her ability to earn an income.

[4]            
The defendant concedes that his negligence caused the plaintiff injuries
for which she is entitled to compensation, but argues that her claims for
general and special damages are extravagant and unsustainable; that her present
difficulties are attributable to pre-existing conditions for which he is not
liable; that her claims for loss of future income earning capacity and future
care are without merit and should be dismissed; and that she has failed to
mitigate her losses.

Position of the Parties:

Plaintiff

[5]            
The plaintiff has claimed non-pecuniary damages of $85,000 – $95,000;
special damages of $60,000; damages for loss of future income earning capacity
of $200,000; for decreased housekeeping capacity of $10,000; and for cost of
future care of $100,000.

Defendant

[6]            
The defendant’s has argued that a just and reasonable award would be
non-pecuniary damages of $31,500 (being $45,000 reduced by 30% for failure to
mitigate); special damages of $17,000; and no award for loss of future income
earning capacity, decreased housekeeping capacity, or cost of future care.

Agreement on Past income Earning Capacity

[7]            
During the trial the parties settled on an amount of $25,000 net of tax for
loss of past income earning capacity. Counsel agreed that the plaintiff had no
claim under this heading before September 12, 2011, because until then she
worked or went to school full-time without any pecuniary loss. Inherent in this
agreement is a concession by the defendant that the plaintiff suffered from an
impairment of earning capacity after that date. I will address this factor in
greater detail below.

Evidence

The Plaintiff

a. Pre-accident

[8]            
The plaintiff is now 28 years old. She was 24 at the time of the
accident. She is well-educated, intelligent and artistic. I find that, when her
physical health was good, she was a vigorous and energetic person. She enjoyed
walking, cycling, dancing, and travelling, and other activities which she now
claims are largely beyond her capacities.

[9]            
Since her high school years the plaintiff has experienced low periods of
depression and anxiety. Her difficulties in this connection are well documented.
She also has a history of irritable bowel syndrome. Her older sister has
Crohn’s disease. The plaintiff’s doctors are concerned about the possibility
that this disease may run in the family. The plaintiff is under the care of a
gastroenterologist with whom she consults from time to time. Neither of these
pre-existing conditions affected the plaintiff’s competence or capacity in her
daily life before the accident.

[10]        
The plaintiff has a history of diligence and initiative in the workplace
and community. She got her first job in a Dunbar flower shop at the age of 16. Later
she was employed by Jenny Craig and was well regarded and swiftly promoted in
that organization. She taught ESL and art to children during and after high
school. Over the years she has been actively engaged in community art, specialising
in “yarn bombing”, otherwise known as graffiti or guerilla knitting.

[11]        
The plaintiff graduated high school in 2003, after which she was offered
advanced placement at Emily Carr College of Art, where she obtained her Bachelor
of Media Arts degree in spring 2007. She then devoted herself to teaching art
on a casual basis and working for Jenny Craig as a program director. The
plaintiff entered the UBC Faculty of Education in the autumn of 2008. She completed
her Bachelor of Education degree and was nearing the completion of her
practicum at University Hill Elementary School when the accident occurred. She
was an energetic and able student teacher. She won an “Outstanding Practicum
Award” from UBC in November 2009.

b. Post-Accident

i)
April 24, 2009 – September 12, 2011

[12]        
In the months after the accident the plaintiff consulted with her family
physician a number of times complaining of tightness and pain in her neck, right
shoulder, and back. She reported that the pain was exacerbated by moving and lifting
as well as by sitting for more than 10 minutes. However, she had full range of
motion on examination and no point tenderness. She experienced frequent spasms
in her paracervical and trapezius muscles. She was prescribed anti-inflammatory
medication and advised to remain active and attend for physiotherapy and
massage.

[13]        
After some early improvements in her physical health, the plaintiff
claims that her recovery stalled and her symptoms, including the back spasms,
have continued to this day. Her rehabilitative efforts have included massage
and physiotherapy, chiropractic treatments, Pilates, and acupuncture.

[14]        
Following the accident, in the late summer of 2009, the plaintiff and her
fiancé, Mr. Ian Wojtowicz, departed for Boston to do post-graduate work. The
plaintiff went in for a Master of Arts degree at Boston University while Mr. Wojtowiecz
was enrolled at MIT. The plaintiff lived and studied in Boston until spring
2010, a period during which she said her activities continued to be restricted
by her injuries. She was unable to cycle or walk as much as she liked, and her
lack of physical strength caused stress in her relationship with her fiancé,
particularly when it came to intimate relations.

[15]        
The plaintiff sought and received treatment at Boston University Student
Health Services. It was recommended that she should continue with a core strengthening
program and increase her levels of physical activity, which the plaintiff
claims to have attempted within the limits of her pain tolerance. The clinical
records for this period also refer to a number of medical consultations
concerning the plaintiff’s bowel problems, which had started to flare up more
frequently than before the accident.

[16]        
Notwithstanding these problems, the plaintiff managed her academic work
in Boston with remarkable success. She achieved “A” grades in every course. On
her return to Vancouver in the spring of 2010, she acquired additional credits
from Emily Carr and UBC and garnered praise and high marks for her work. In the
fall of 2010 she worked consistently as a teacher on call for the Vancouver School
Board. In January 2011 she was granted a contract teaching position at
University Hill Elementary, where she had done her practicum.

[17]        
The plaintiff’s first appointment with her family doctor on returning from
Boston to Vancouver was June 3, 2010. Between that date and April 26, 2011, her
physician’s clinical records establish a pattern of regular consultations, but these
focused on the plaintiff’s bowel problems and her growing levels of stress and
anxiety. She also received advice about facial hair removal and an unrelated
knee complaint. It was not until April 26, 2011, when the plaintiff’s doctor
gave her a referral for massage therapy, that the plaintiff’s medical consultations
returned to the subject of her accident related soft tissue injuries. I note,
as well, that on May 30, 2011, the plaintiff’s doctor gave her a note to ICBC
recommending massage therapy and a core strengthening regime.

ii. September
12, 2011 onwards

[18]        
The plaintiff’s next visit to her family doctor was on September 15,
2011. As previously stated, from the date of the accident until approximately
this time, there was no interruption in the plaintiff’s studies and she lost no
time at work. She was coping with her problems successfully and getting on with
her life.

[19]        
A brief digression is necessary here. On September 6, 2011, the
plaintiff started a temporary full-time teaching contract at David Thompson
Secondary in Vancouver that was to run until the December school holiday. She worked
the four day week after Labour Day, but on the first Monday of term, September
12, 2011, she booked off to attend an examination for discovery in the present
litigation.

[20]        
This absence was recorded in her Vancouver School Board employment file
as “leave without pay”. At discovery, in response to questions about her
current employment status, the plaintiff testified that she was a full-time
teacher. She made no reference to debilitating pain or limitations while teaching,
and certainly did not mention or even intimate that she was poised to take an
extended leave of absence for medical reasons.

[21]        
A couple of hours after she finished her examination, the plaintiff e-mailed
the personnel department of the Vancouver School Board to ask if her status for
the day could be changed from “leave without pay” to “sick leave”. She claimed,
in this e-mail, to be suffering from strep throat and said that she could
provide a doctor’s note. I infer that her motivation for making this request
was so that she would be paid for the day. There was no mention of any more
serious health problems.

[22]        
However, the plaintiff never returned to work at David Thompson Secondary.
Instead she applied for and was granted a medical leave with the support of her
family doctor on the basis of consultations on September 15 and 21, 2011. In
clinical notes relating to the consultation on September 15, the doctor noted
that the plaintiff’s abdominal pain, diarrhea and anxiety had increased a lot
with her new job. The September 21, 2011 clinical notes confirm that the
plaintiff could not work due to abdominal cramping, diarrhea and anxiety. The
doctor filled in forms for the School Board indicating that the date from which
the plaintiff was unable to perform her teaching duties was September 12, 2011,
the day on which she attended for discovery and testified for a couple of hours
without distress.

[23]        
In connection with the medical leave application the Vancouver School
Board obliged the plaintiff’s family doctor to complete a “Certificate of
Attending Physician”. This document set out that the plaintiff was being
treated primarily for exacerbation of Crohn’s disease and secondarily for anxiety.
These conditions, the doctor certified, were solely responsible for the plaintiff’s
inability to perform as a teacher. There was no mention of the accident-related
deficits which the plaintiff now claims were a significant contributing factor
to her withdrawal from her job at David Thompson Secondary.

[24]        
The plaintiff was cross-examined about this. She agreed that her bowel
and anxiety problems had worsened, but said that her accident-related physical
limitations played a role in her decision to seek a medical leave. She said
that she found herself in unfamiliar surroundings with physical demands beyond
her diminished physical capacities, and she had no accommodation from her
colleagues who were, of course, unaware of her difficulties. She also testified
that, notwithstanding her avowed medical disability, she was obliged her to
carry on preparing lessons for her replacement.

[25]        
The plaintiff was medically cleared for a gradual return to work in
December 2011. From January to June 2012 she had a 0.28 contract at Windermere
High School in Vancouver which she supplemented with teacher on-call work. This
combination was advantageous, she said, because it permitted her to work at a
reduced pace and reintegrate into the workplace on her own timetable. During
the 2012-2013 school year, the plaintiff secured another contract teaching at
Killarney High School on a 0.7 basis between October and March, and she also did
supply teaching here and there. She testified that she managed her teaching obligations
well enough by consistently attending for massage and physiotherapy. It was
during this period that she started Pilates, which helped a good deal.

[26]        
During the present school year, 2013-2014, the plaintiff has not worked.
She testified that she decided to take a break to complete her Master’s thesis
on yarn bombing, which she said has been delayed by her chronic pain and the
countless hours that she has had to spend on rehabilitative treatments and
interventions. Part of her claim in this case is that the defendant should
reimburse her for additional tuition that she has had to pay Boston University because
of this delay. The plaintiff denied that she has been unemployed this year
because there have been no openings for junior teachers in her area of
specialty.

[27]        
The plaintiff testified that her physical health has deteriorated with
the passage of time. She has gained thirty pounds since the accident because
she is severely limited in the amount she can exercise. She told me that there
have been times when she has not been able to lift her camera to take
photographs. She has been forced to buy a car because she lacks her previous
mobility on foot and bicycle. It now takes her five days to unload a carful of
groceries because she can only carry a couple of bags to her apartment at a
time. Before her move to Boston in 2009, she claimed to be unable to lift a
dinner plate, set a table, or carry her own water bottle.

[28]        
The plaintiff’s presentation in court was striking. I had her under
observation for most of this eight day trial. She was constantly bending and
stretching, alternating between sitting and standing, and, while standing,
shifting her weight from one foot to the other. Now and again she stretched out
on the floor of the courtroom for reasonably long periods of time. She had a
heating pad that she applied to her back and shoulder, including while she was
testifying. She gave the appearance of being in constant and quite severe pain
and discomfort.

Supporting Witnesses

[29]        
The plaintiff called a number of her friends and relatives to testify
about changes in her since the accident. Amelia Ewart testified that she and
the plaintiff are close friends who met in July 2012. They see one another
often. She made it clear that she was unaware until a number of weeks before
trial that the plaintiff had been involved in a motor vehicle accident. Her
evidence was limited to the observation that the plaintiff seemed to be
uncomfortable sometimes and had to stretch while they were walking. She
referred to one occasion when the plaintiff claimed to be unable to lift a
small box.

[30]        
Patricia McLean, the plaintiff’s former employer, testified that she has
kept in touch with the plaintiff since she worked at her flower shop in the
Dunbar area. She meets with the plaintiff every few months to socialize. She
said that the plaintiff does not appear to have her usual energy since the
accident. Instead of going for walks they now visit over a cup of coffee. She
said that the complainant is not as “perky” as she was, but she was not sure
why.

[31]        
Ian Wojtowicz was the plaintiff’s fiancé and lived with her before and
after the accident. He said that their post-accident activities were circumscribed.
They did not walk as often or as far as previously, or cycle together as much. He
said the plaintiff had to stretch often and she was more irritable. He was not
always sure whether this was related to her injuries or to other factors. He
said that their walks were often cut short, not because the plaintiff was in
pain, but because they were arguing. Their sex life was negatively affected. He
said that the plaintiff’s pain had made their sojourn in Boston much more
difficult than expected.

[32]        
Harley Glesby, the plaintiff’s father, testified that the plaintiff no
longer seems comfortable in her body. She is constantly twisting, turning and
stretching. She cannot participate in family functions as she used to. She goes
home early from family dinners. She has lost energy and is incapable of her
customary recreational and social activities. She has tried to remain upbeat,
he said, but becomes frustrated and upset by her lack of progress and
improvement.

[33]        
Karen Glesby testified that her daughter has been in constant and
obvious pain since the accident. She has been negatively affected in every
aspect of her life. The plaintiff is “a different person.” She cannot sit still
at family dinners, frequently leaving the table to stretch, apply heat or to
lie down. She has tried hard to get better by exercise, massage and
physiotherapy, and has been saddened and frustrated by her lack of success. She
is quicker to temper and less patient than before the accident.

[34]        
The plaintiff’s sister, Sara Costin, testified that the plaintiff cannot
do nearly as much physical activity now as before the accident. She cannot sit
comfortably for any length of time. She is constantly stretching or lying down
on the floor. She leaves family functions early because she is exhausted and
exasperated. She does not dance at family celebrations as she used to. She is
consumed with attending physiotherapy, massage, and other appointments, which
she approaches “like a project that she is constantly managing”.

[35]        
Brittany Mitchell, a fellow student from the UBC education faculty, testified
that the plaintiff looked to be in pain after the accident, and described one
occasion where the plaintiff stretched out on the floor of a lecture hall
because she was uncomfortable sitting.

Medical and Therapeutic Evidence

[36]        
I have read and considered expert opinion evidence from the following care
givers:

·      
Dr. Max Kleinman, physiatrist;

·      
Dr. Cecil Hershler, physiatrist;

·      
Dr. Taslim Hameer, general practitioner;

·      
Robin Armstrong, chiropractor;

·      
Miles Buckman, therapist;

·      
Dr. Iain Dommisse, orthopedic surgeon;

·      
Dr. Mark Riley, psychiatrist.

[37]        
I heard viva voce testimony from all of the above persons except
for the chiropractor, Robin Armstrong. All were retained by the plaintiff
except for Dr. Dommisse and Dr. Riley, who performed independent
examinations of the plaintiff at the behest of the defendant. Additionally, I
heard testimony from Katherine Couch-Burrows, a registered massage therapist
who treated the plaintiff before and after the accident. With the consent and
approval of both counsel, filed in a document agreement at the outset of trial,
I have also read and considered a wide variety of clinical records and notes
concerning the plaintiff’s therapeutic treatment since the accident.

[38]        
From these various sources, I am confident that I have full and fair
overview of the plaintiff’s clinical progress, present condition and prognosis.
I would note the following areas of agreement or uncontradicted opinion:

·      
The plaintiff enjoyed good physical health before the accident
and was pain free.

·      
The plaintiff suffered a moderate or Grade II whiplash injury as
a result of the accident and has suffered from pain and discomfort to her neck,
right shoulder and back.

·      
The majority of persons who sustain such injuries recover within
a year a year or two, but a minority of perhaps 10-15 per cent never recover
and experience permanent pain and deficits.

·      
Most of the plaintiff’s symptoms are self-reported, and the
weight to be ascribed to the various medical opinions based upon those reported
symptoms will be diminished should I find that the plaintiff has exaggerated or
lied.

·      
On the other hand, if is accepted that the plaintiff is a true
and reliable historian who continues to suffer in the reported manner approximately
four and a half years after the accident, it is likely that her pain is here to
stay and unlikely to improve.

·      
The plaintiff has a history of anxiety, depression and irritable
bowel syndrome. These conditions did not affect the plaintiff’s basic
functioning or capacity before the accident, but they are clearly doing so now.

·      
The plaintiff’s pre-existing conditions, also called negative
prognostic indicators, may have been exacerbated by the soft-tissue injuries
sustained in the accident and/or have resulted in diminished resilience to the
pain and stress caused by those injuries, thereby creating a ”cycle of pain” and
a prolonged period of recovery.

·      
The plaintiff does not suffer from any mental illness, pain disorder
or somatic symptom disorder.

·      
The plaintiff has been diligent in attempting to rehabilitate
herself, although not by resort to either a pain clinic or medical cannabis, as
recommended by Dr. Kleinman and Dr. Hershler, respectively.

[39]        
I will focus, in the following discussion, on the evidence of Drs.
Kleinman, Hershler, Dommisse and Riley, but first will comment briefly on the
evidence of the other clinicians.

[40]        
Dr. Hameer’s report comprises a useful chronology of the
plaintiff’s treatment and progress since the accident, gleaned mostly from the
plaintiff’s clinical records, as Dr. Hameer herself only became the
plaintiff’s consulting physician in late December, 2011. Given her recent
involvement with the plaintiff, I found Dr. Hameer’s courtroom testimony,
while helpful, to be somewhat peripheral. I have borne in mind, however, that
as late as August, 2013, Dr. Hameer referred the plaintiff to massage and
physiotherapy because she reported continued suffering from back spasms. The
plaintiff has relied heavily on this symptom, which she argues, along with a reduction
in range of motion in her neck and cervical spine, constitutes ongoing
objective proof of accident-related injury.

[41]        
The evidence of Miles Buckman consisted mostly of a repetition of the
plaintiff’s narrative of her post-accident feelings and anxieties which was
only minimally useful. On the other hand, he has counseled the plaintiff for
years, before and after the accident, and I accept his evidence that her
anxieties seem to have increased post-accident and to focus on matters, such as
where she should live and with whom, that did not seem to trouble her
pre-accident. He described this as a “reactive identity crisis”, meaning that
the plaintiff’s identity as a fit and responsible human being has been
compromised by the accident. He said that she will require additional counselling
to overcome this crisis.

[42]        
I have kept in mind the observations and opinions of the two chiropractors,
and I accept the evidence of their limited involvement in the plaintiff’s
treatment. I note in particular the report of Dr. Robin Armstrong, who
began a series of consultations with the plaintiff on November 22, 2011, only a
month or so after the plaintiff began her disability leave from work, wherein
she complained primarily of her unrelated bilateral knee pain and only
secondarily of injuries from the accident.

[43]        
Dr. Kleinman’s report was based on a single consultation with the
plaintiff on January 19, 2012, some 33 months post-accident. He diagnosed soft
tissue injury and chronic pain with associated depressive symptomology, though
he freely conceded that any psychological dimension to the plaintiff’s problems
was beyond his realm of expertise. His report explicitly concedes that the
plaintiff’s symptoms were not objective and that he was relying on her
truthfulness in coming to his opinions.

[44]        
Dr. Kleinman advised the plaintiff to attend a pain clinic, but at the
time of trial, over four years post-accident, she had not followed this advice.
She testified, at first, that this was because the defendant had refused to pay
for it and she could not afford it. Later she said that she resisted the idea
of the pain clinic because she was reluctant to admit or concede that her pain
was irremediable. She now accepts this and has taken steps to enrol in such a
clinic at St. Paul’s Hospital.

[45]        
Dr. Kleinman also recommended active therapy focused on increasing
strength, flexibility and endurance. He testified that passive treatments such
as physiotherapy and massage should only be resorted to secondarily, to supplement
an active rehabilitative regime, and that these passive treatments should taper
off with time and be used only when “flare-ups are of significant concern”. The
plaintiff followed this advice with her stretching exercises and Pilates.
Before and after her consultation with Dr. Kleinman, from July 2011 to May
2012, she pursued a core strengthening program, but abandoned it because it was
not helping and, in fact, occasionally aggravated her problems. Since then the
documentation before me clearly indicates that she has relied predominantly on
physiotherapy and massage, precisely the sorts of passive treatments that Dr. Kleinman
warned should only be used as back-up. In fact, her recourse to such treatments
accelerated sharply after her consultation with Dr. Kleinman. In 2012 she
attended for massage therapy on 76 occasions, almost twice as often as in 2011,
and for physiotherapy on 61 occasions, compared with 13 treatments in 2010 and
none in 2011.

[46]        
Dr. Kleinman also recommended that a functional capacity evaluation
should be done to identify the precise nature of the plaintiff’s physical
abilities and deficits, especially relating to her ability to perform her job as
a school teacher. He believed, and I respectfully agree, that such an
evaluation would clarify the plaintiff’s ability to cope with daily life, both
at work and home, and enable a tailor-made plan for treatment, rehabilitation
and, if necessary, accommodation of her reduced capacities. The plaintiff did
not take this advice, and her failure to do so was not explained.

[47]        
Dr. Hershler examined the plaintiff on May 2, 2013, some five
months before trial. His diagnosis was much the same as Dr. Kleinman’s,
but without discussion of a possible interrelationship of physical and
psychological factors. Soft tissue injury and chronic pain were the culprits,
he said, and echoed Dr. Kleinman’s recommendation that the plaintiff should
embark upon a core strengthening program. He also encouraged the plaintiff to consider
the use of medical cannabis to manage her pain. The plaintiff has not taken this
advice, either. She has reservations about the legality of the acquisition and
use of cannabis, and, in any event, she is a committed life-long abstainer from
narcotics and drugs of all sorts.

[48]        
Dr. Dommisse examined the plaintiff on January 31, 2012, a couple
of weeks after Dr. Kleinman. He gave the opinion that the plaintiff should
have recovered fully from her injuries by the time of trial. There were no
objective symptoms of injury, he said, and from the musculoskeletal standpoint
there appeared to be nothing wrong with her. On physical examination she did
not appear to be in pain and denied that any teaching-related activity aggravated
her condition. She displayed a reduced range of motion of her cervical spine,
but testing the limits of this range caused her no pain. He observed no back
spasms during his approximately 40 minute examination of the plaintiff. He
palpated for spasms but detected none. He agreed in cross-examination that back
spasms can come and go, depending on what caused them. He specified, however,
that he would not expect this symptom to be absent on examination and palpation
if it were caused by soft tissue injury.

[49]        
Dr. Dommisse conceded in cross-examination that a minority of grade
II whiplash sufferers do not recover full functionality, usually because of
pre-existing frailties or “negative prognostic indicators” specific to the
individual, including anxiety, depression and irritable bowel syndrome. These
negative indicators, Dr. Dommisse agreed, can prolong the pain and
physical distress caused by soft tissue injuries, while the pain of such
injuries can exacerbate pre-existing conditions, setting off a cycle of pain
that can be difficult to break.

[50]        
The existence of this cycle of pain was endorsed by Dr. Riley, who
met with the plaintiff on August 22, 2013, less than two months before trial. While
his evidence went mostly to establish that the plaintiff suffered from no
mental illness, pain disorder or somatic symptom disorder, he testified that persons
predisposed to anxiety, depression and gastrointestinal problems may react
negatively to the additional stressor of chronic pain. In the plaintiff’s case,
he said, as these predispositions did not affect her daily life before the
accident, it was reasonable to suppose that the additional stressor of chronic
pain may be the explanation for her prolonged incapacity. He agreed that the
plaintiff was not disproportionately fixated on her “pain experience”, was
motivated to recover, and had taken appropriate steps towards rehabilitation. I
note, as well, Dr. Riley’s testimony that the plaintiff “needed to do some
stretching” during their 2.5 hours together.

The Yarn
Bombing Video

[51]        
The defendant submitted in evidence a clip of video footage showing the
plaintiff out and about on the UBC campus talking about yarn bombing. This video
was shot on November 24, 2010, by reporters for the campus newspaper. In this
video the plaintiff appears to be relaxed, comfortable, enthusiastic, and pain
free. There is no sign of distress or discomfort. When asked to comment upon
this video clip, the plaintiff said that she was trying to be professional and
positive, that she “wanted to be proud of herself”, and that she was “clinging
to her identity”. She also thought that the film crew might have edited out footage
in which she exhibited discomfort.

Evidence from the Vancouver School Board

[52]        
The defendant called Mr. Christopher Alderman, the assistant staffing
manager with the Vancouver School Board. He contradicted the plaintiff’s
assertion that she had been obliged to continue preparing lessons for David
Thompson Secondary after she was approved for medical leave. This is not how
things work. Once a teacher is on medical leave, there are no further classroom
related requirements. The Board requires that the teacher should focus on
getting well.

[53]        
Mr. Alderman also gave evidence relevant to the plaintiff’s
contention that she has taken the present school term off work to complete her master’s
thesis. While it is true that she has not worked for the Vancouver School Board
so far this year, Mr. Alderman testified that there has been nothing
voluntary about this. The plaintiff has applied for no less than 18 contracts
with the Board since June. Her latest application was on October 1, 2013, one
week before this trial started. She has not been hired because she is either
not properly qualified for the contracts on offer or more senior teachers are
ahead of her in the queue. There are 50 art teachers employed full-time within
the Vancouver School District, most of them covering other subjects as well,
and almost as many on the “Teacher on-Call” list. There is not much demand for
art teachers.

Discussion

[54]        
This is a common but nevertheless difficult species of case. The
plaintiff appears to have been involved in a low-medium velocity accident
resulting in moderate whiplash injuries from which most people recover fully.
But here the plaintiff says that she continues to suffer miserably. She claims
that every aspect of her daily life continues to be negatively impacted by
accident-related pain, and that her condition is getting worse. She says that
she has been materially and permanently compromised in her ability to earn
income as a school teacher. She has spent large sums on physiotherapy, massage,
acupuncture, Pilates, strength training and counselling. She says that the
defendant should be held liable to pay such costs to date and for years to come.
She seeks an aggregate award of close to $500,000.

[55]        
The defendant responds that an objective assessment of the evidence shows
that, after this relatively minor collision, the plaintiff was able
successfully to get on with her life after a brief convalescence. In the two
and a half years post-accident, she moved to Boston and took a master’s degree
in education, achieving stellar marks, and when she returned, she worked
full-time in Vancouver as a contract teacher and excelled in all her tasks.

[56]        
The defendant says that if the plaintiff experienced a decline in
competence and capacity starting in the fall of 2011 it was not caused by the
accident, but by a worsening of her antecedent problems with anxiety and irritable
bowel syndrome for which he is not responsible. The medical evidence plainly
supports this theory, he says. He places particular emphasis on the paucity of musculoskeletal
complaints in the plaintiff’s clinical history after she returned from Boston,
as well as her GP’s September 2011 certification to the Vancouver School Board
that the plaintiff’s Crohn’s symptoms and anxiety were solely responsible for the
disability that prevented her from working.

[57]        
In the alternative, the defendant says that the plaintiff is
exaggerating her injuries and has failed to mitigate her losses by not
following Dr. Kleinman’s advice to go to a pain clinic and take vocational
capacity testing.

[58]        
It will be obvious that the credibility of the plaintiff and the
reliability of her testimony are central to the determination of this case. In
assessing the plaintiff’s credibility, I bear in mind, first of all, that her
case depends mostly, if not completely, upon her subjective assessment and
reporting of her injuries. The expert opinions that I have considered are based
on the accuracy of the plaintiff as an historian of her own condition and
progress. The law requires that I approach such evidence with some caution, and
I have done this.

[59]        
I find that aspects of the plaintiff’s testimonial evidence were exaggerated
or untrue. I do not accept, for example, that her physical deficits were ever
such that she could not set a table, lift a dinner plate, or carry a water
bottle. I do not believe that it takes her five days to unpack groceries from
her car. Her explanation for her apparently pain-free demeanour during the yarn
bombing video I found more curious than persuasive. I do not accept that her
refusal to attend a plain clinic had anything to do with cost, especially when
I consider the large sums that she has spent on other treatments, including the
many expensive consultations with Miles Buckman which, quite frankly, do not
seem to have helped much.

[60]        
Mr. Alderman’s evidence, which I accept without hesitation, leads
me to reject the plaintiff’s evidence that she was obliged to prepare lessons
at David Thompson School after being granted a medical leave. I furthermore
dismiss as untrue her assertion that her present unemployment from teaching is
voluntary, or caused by her desire to devote herself full-time to the
completion her master’s thesis. She is out of work because, at present, the
Vancouver School Board has no work for her.

[61]        
I find that I cannot rely entirely on the plaintiff’s testimonial
evidence. Accordingly, I turn to other evidence to attempt to determine where
the truth lies and whether or not, in the aggregate, such evidence tends to
support the plaintiff’s claims of ongoing accident related disability.

[62]        
I would begin with the observation that, over the years, the plaintiff seems
to have presented herself in different ways to different people. While the
plaintiff’s mother and sister gave evidence that is consistent with her own narrative
of pain and suffering, in my assessment her father and fiancé were more
reserved. They testified to a significant difference in the plaintiff’s
demeanour, competence and ability after the accident, to be sure, but neither of
them described the acuity of ongoing pain and discomfort that was testified to
by the plaintiff, her mother, and sister, or, for that matter, that was displayed
in my courtroom during this trial.

[63]        
I found the evidence of the remaining supporting witnesses to be
curiously muted and lacking in emphasis. Ms. Ewart did not even know that
the plaintiff had been in an accident until being told as much shortly before
trial, prior to which I infer that she had noticed nothing amiss. Ms. McLean’s
observations of the plaintiff’s physical comportment were similarly flat and ambiguous,
and fell a long way short of corroborating the plaintiff’s urgent portrayal of
her difficulties. Ms. Mitchell, for her part, did not seem to know the
plaintiff particularly well, and her specific observations of the plaintiff’s
physical demeanour were limited and not terribly persuasive. If these witnesses
had ever, on any occasion, observed the unremitting pain symptoms testified to
by the plaintiff and others and displayed during this trial, they did not say
so. Furthermore, the plaintiff did not present with such apparently advanced
symptoms during a 2.5 hour consultation with Dr. Riley only six weeks or before
trial.

[64]        
In the face of the complainant’s claim to be badly injured and
permanently disabled, and given the constant and acute pain symptoms by which
she appeared to be afflicted during trial, I find the absence of consistent,
cogent, independent corroborative evidence to be troublesome. When I consider
the medical evidence, furthermore, I find it remarkable that the plaintiff
consulted with her family physician on an approximately monthly basis during
the year or so after her return from her graduate studies in Boston in the
spring of 2010, but accident-related injuries were never mentioned or noted. The
plaintiff testified that this was because her GP has a “one complaint per
visit” policy, but I cannot accept this. If she suffered from the sort of serious
soft tissue pain that she described in evidence and displayed by her demeanour in
court, she would have sought her doctor’s help for it during this period,
failing which her doctor would have noticed her obvious distress and taken
action.

[65]        
I have come to the reluctant conclusion that the plaintiff is exaggerating
the nature and extent of her physical difficulties caused by the accident and that
she has attempted to mislead me on some important points. I have come to the
conclusion that her demeanour and presentation in court, to some degree at
least, was histrionic. On the basis of the evidence which I do accept, I find that
the accident of April 24, 2009 caused the plaintiff grade II whiplash injuries,
and that it is reasonable to suppose that her recovery was prolonged by the
sort of “pain cycle” described by Drs. Dommisse and Riley.

[66]        
However, as of September 12, 2011, when the plaintiff started her
disability leave from work, the medical evidence clearly suggests that plaintiff’s
problems in life have been caused by the worsening of her pre-existing gastrointestinal
complaints and anxiety, which are unrelated to the accident and in no wise
attributable to the defendant’s negligence.

[67]        
If left to my own devices, I might well have drawn the boundary of the
defendant’s liability for the plaintiff’s pain, suffering and loss around the
time that she departed David Thompson Secondary on medical leave on September
12, 2011. However, as I said earlier, it seems to me to be inherent in the parties’
mid-trial settlement of damages for past income loss that the plaintiff’s
accident related problems must have persisted for some time thereafter. Accordingly,
I am prepared to accept that, on the basis of the plaintiff’s earning history,
the agreed amount would be roughly equivalent to the net income that the
plaintiff might have earned had she been employed full-time as a teacher during
the entire 2011-2012 school year, or roughly three years after the accident. As
far as I am concerned this is the outer limit of the defendant’s liability.

[68]        
On the totality of the evidence, the plaintiff has failed to establish that
the defendant should be held liable for her subsequent deficits or impairments,
whatever they may be, or that the defendant’s negligence has caused a real and
substantial possibility of a future event leading to an income loss.

[69]        
I decline to find that the plaintiff failed to mitigate her losses by
not taking medical cannabis. Dr. Hershler’s advice came after the end of what,
for the reasons just stated, I consider to be a reasonable recovery period. In
any event, I accept as sincere the plaintiff’s reservations about the acquisition
and use of cannabis.

[70]        
Her failure to follow Dr. Kleinman’s advice that she attend a pain
clinic and take vocational testing is a slightly different matter.
Participation in a pain clinic would have shed valuable light on the
plaintiff’s physical condition and prognosis, and functional capacity testing would
have been useful in determining the extent, if any, of her physical limitations,
especially relating to her ability to work. While I did not draw an adverse
inference from the plaintiff’s failure to pursue these options, it did have an
impact on my evaluation of the case. Combined with my misgivings about the
plaintiff’s testimonial credibility, and the absence of consistent, independent
corroborative evidence concerning her claim to be seriously and permanently
injured, and the fact that, as the years have passed, her clinical history
strongly suggests that her present problems are primarily gastrointestinal in
nature, the plaintiff’s failure to follow Dr. Kleinman’s recommendations has contributed
to an ambiguous record in this case which falls short, all things considered, of
establishing the full extent of her claim on a balance of probabilities.

[71]        
It follows that I will award the plaintiff non-pecuniary and special
damages, in addition to the agreed past wage loss, but her claims for loss of
future income earning capacity, decreased housekeeping capacity, and cost of
future care are dismissed.

Non-pecuniary Damages

[72]        
In Stapley v. Hejslet, 2006 BCCA 34 noted the following
concerning the purpose of non-pecuniary damages:

[45] Before embarking on that task, 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).

[73]        
In this case, the plaintiff cited the following cases in support of her
submission for an award under this head of $85,000.00 to $95,000.00: Dorosh
v. John, 2013 BCSC 1442; Newmann v. Eskoy, 2010 BCSC 1275; Clark
v. Kouba, 2012 BCSC 1607; Pett v. Pet,  2009 BCCA 232; Perry v.
Perry, 2011 BCSC 432; Andrusko v. Alexander, 2013 BCSC 985; Esau
v. Myles, 2010 BCSC 43; Kardum v. Asadi-Moghadam, 2011 BCSC 1566; Gauthrie
v. Narayan, 2012 BCSC 734; Jorgensen v. Coonce, 2013 BCSC 158; Aubin
v. Ball, 2013 BCSC 962.

[74]        
In support of an award of an award for $45,000.00 under this heading,
the defendant relies on Sekhon v. Nguyen 2013 BCSC 281 and Dakin v.
Roth 2013 BCSC 8.

[75]        
Considering the factors outlined in Stapley, I note the
following. The plaintiff is now 28 years old and suffered from accident related
deficits and pain for a period of three years. Her period of recovery was prolonged
because of her pre-existing conditions of irritable bowel syndrome and anxiety,
and the defendant was responsible for this extended pain and suffering. Because
of the accident, the plaintiff was compromised in her ability to enjoy the
pleasures of everyday life, and she lost three good years during which she
ought to have been enjoying her physical capacities at their peak. The
defendant’s negligence deprived her of the optimal enjoyment of her year away
in Boston, and caused her problems on her return to Vancouver as well. These
are factors which, in my view, militate for an award higher than that which has
been argued for by the defendant, and non-pecuniary damages are hereby set at
$60,000.00. I include in this an amount for past decreased housekeeping
capacity.

Special Damages

[76]        
It is well established that an injured person is entitled to recover the
reasonable out-of-pocket expenses incurred as a result of an accident. This
comes from the 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,
[2011] SCBC 944 at paragraph 281; Milina v. Bartsch (1985), 49 BCLR (2d)
33 (SCC) at p. 78. I will allow all of the expenses claimed by the
plaintiff to the end of June 2012, which, as previously stated, I have
determined to be the end of a reasonable recovery period in the circumstances
of this case. These are as follows:

[77]        
For clarity, I have taken these figures from the table set out in trial Exhibit
4, Tab 22, and netted any expenses incurred after June 30, 2012. I have
specifically omitted to include the additional tuition fees payable to Boston
University. In my view the defendant is not responsible for the plaintiff’s
failure to complete her thesis in a timely manner. I have also allowed only
$5,000.00 of the amount claimed for counselling expenses with Dr. Miles
Buckman, including the claim for parking. In my assessment, the amount claimed
was excessive and far greater than that the defendant ought reasonably to be
required to pay. The evidence was by no means clear about what, specifically, the
plaintiff and Dr. Buckman discussed or accomplished during their sessions together,
or the extent to which their therapeutic relationship after the accident was
devoted to her “reactive identity crisis” or to other issues. The matter was
not much clarified by Dr. Buckman’s rather vague testimony and the absence, in
his counselling practice, of note-taking or record keeping.

Summary

[78]        
My award in this case is as follows:

[79]        
The plaintiff will have her costs unless there are issues of which I am
unaware.

“Baird J.”