IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140403

Docket: M093866

Registry: Vancouver

Between:

Sheila Munoz

Plaintiff

And

Alvin A. Singh

Defendant

AND:

Docket: M112250

Registry: Vancouver

Between:

Sheila Munoz

Plaintiff

And

Pierre A. Dechaine

Defendant

AND:

Docket: M114292

Registry: Vancouver

Between:

Sheila Munoz

Plaintiff

And

Thi A. Le

Defendant

Before:
The Honourable Madam Justice Ballance

Reasons for Judgment

INTRODUCTION

[1]            
These three actions being heard together arise from three motor vehicle
accidents involving the plaintiff, Sheila Munoz, that respectively took place
on September 9, 2007, June 15, 2009 and June 21, 2011.  I will
sometimes refer to the accidents collectively, and at other times separately as
the “First Accident”, the “Second Accident” and the “Third Accident”. 
Liability for the accidents has been admitted by each of the defendants.

[2]            
That the accidents caused injury to Ms. Munoz is not in dispute. 
The contentious issues are the nature, severity and future functional effect of
her injuries.

Background

[3]            
In 1995, when Ms. Munoz was a teenager, she and her family moved to
Canada from the Philippines.  While still in high school, she took a part-time
job with McDonald’s Restaurant to enable her to contribute extra income to her
family.

[4]            
Ms. Munoz was interested in the hospitality industry and was impressed
with the career opportunities offered at McDonald’s.  After graduating from
high school in 1999 with solid grades, she elected to remain with McDonald’s and
began to work on a full-time basis.

[5]            
From the start, Ms. Munoz distinguished herself as a devoted and hard-working
employee who went “the extra mile” in her job.  She moved up the ranks with
relative dispatch, being promoted to a salaried manager, then to second
assistant manager, and eventually to first assistant manager.  She logged an
estimated ten additional hours of unpaid work every week because she believed
that level of devotion was required in order to succeed.  In 2004, Ms. Munoz
was promoted to a full restaurant manager.  She excelled in that position and
was rated as a “top performer” based on the reviews of her crew and assistant
managers, the business results achieved at the restaurant under her management and
through on-site evaluations.  She was also recognized as “Manager of the Year”
in her area.  That was a proud accomplishment for Ms. Munoz and marked a
high point in her career.

[6]            
Ms. Munoz met her future husband, Dexter Munoz, when they were both
working at McDonald’s.  They were married in June 2007.  After their wedding,
Mr. Munoz joined his new wife in the townhome where she resided with her
parents and brother.

[7]            
At the time of trial, Mr. Munoz worked the graveyard shift sorting
mail and packages for a courier company.  He is paid an hourly wage that totals
an annual salary of $42,000 “more or less”.  As a restaurant manager, Ms. Munoz
receives what she described as “good benefits” and earns a larger annual salary
of over $50,000.

●      First
Accident (September 9, 2007) and Aftermath

[8]            
The First Accident occurred in the pre-dawn hours as Ms. Munoz and
her passenger were en route to work an early shift at McDonald’s.  Ms. Munoz
was seven months pregnant at the time.  She was stopped at the intersection of
Main Street and Terminal Avenue when her car was rear-ended by the vehicle
driven by the defendant, Alvin Singh.  She did not hear an impact.  Although
she felt her car move, Ms. Munoz was not sure there had been an accident
until she looked behind and realized that her car had been hit.  Her
description of the relatively minor force of the collision was consistent with Mr. Singh’s
testimony.

[9]            
Not surprisingly, Ms. Munoz’s immediate and only thought was for
the well-being of her unborn child.  She called the police because Mr. Singh
would not produce his driver’s license.  Afterward, she continued along to
work; however, she left her job early that day because she had a headache.

[10]        
Within days of the First Accident, Ms. Munoz’s obstetrician
reassured her there was no cause for concern for the welfare of her baby.

[11]        
I accept Ms. Munoz’s testimony, credibly supported by her husband, that
shortly after the First Accident she started to feel low back pain and began to
have frequent headaches, prompting an appointment with her family physician, Dr. Edgardo
Wee.  She told Dr. Wee that her biggest concern was for her baby.  Because
she was pregnant, Ms. Munoz did not feel comfortable taking medication to reduce
her pain, an entirely understandable concern.  She asked what sort of therapy
she might safely do in light of her pregnancy.  Dr. Wee referred her to a
physiotherapist who provided her with a heating pad and administered some
massage; her pregnancy precluded more intensive manual therapy.

[12]        
The evidence establishes that prior to the First Accident, Ms. Munoz’s
health had been excellent.  She had planned to work until close to her due date
in November 2007, and on account of her pregnancy, had been performing
less physically demanding work duties than usual.  Ms. Munoz continued to
work after the First Accident.  However, due to its ill-effects, she used some
holiday time in order to start her maternity leave a few weeks earlier than she
had intended.

[13]        
After her daughter, Kamylle, was born on November 11, 2007, Ms. Munoz
noticed a worsening of her symptoms.  Her back pain intensified and travelled upward
into her shoulders and neck.  She endured more frequent headaches, which were
sometimes quite severe.  She could not recall for certain whether she had
experienced symptoms in her shoulders and neck prior to her daughter’s birth;
however, she had a clear recollection of those afflictions after Kamylle’s
arrival.  Ms. Munoz also experienced some fleeting numbness and tingling sensations
in her right leg.  She was not able to pinpoint precisely when it was after the
First Accident that those symptoms initially emerged.

[14]        
Cradling her infant daughter aggravated Ms. Munoz’s back pain and
she was not able to lift or carry her daughter as much as she liked.  As well,
the evidence shows that she had to refrain from doing her usual household chores
such as carrying the laundry, vacuuming and even grocery shopping because they
aggravated her symptoms.  I accept that on the occasions when she forged
ahead and performed those tasks despite her misgivings, she would frequently have
to lie down afterward and take Advil to manage the pain.  Her husband assumed a
greater share of the burden of everyday chores and in attending to Kamylle’s
needs.

[15]        
Ms. Munoz returned to physiotherapy a few months after her daughter’s
birth and, over the span of approximately 20 sessions, received treatment for
her low back and neck symptoms, and was given stretching exercises to do on her
own.  While the physiotherapy temporarily helped to relieve the symptoms, they would
always recur a few days later.  Ms. Munoz became discouraged by the lack
of lasting beneficial effect of those sessions.  Rather than continuing on with
that modality, she asked Dr. Wee about other treatment options and it was
decided she would enrol in an active rehabilitation program at Karp
Rehabilitation (“Karp”).

[16]        
In the spring of 2008, and while still on maternity leave, Ms. Munoz
attended Karp twice per week over a period of approximately two months.  Her
lower back was her primary area of concern, and her neck, upper back and
shoulder regions were secondary.  A rehabilitation trainer customized an
exercise and strengthening routine, which eventually incorporated free weights,
to strengthen Ms. Munoz’s back and leg and instructed her on stretching to
ease her pain.  She was able to walk and eventually run a little on a
treadmill.

[17]        
Ms. Munoz found the Karp program therapeutic and felt that it brought
her relief, making her more flexible and stronger overall.  At the completion
of the program, her back pain had become more intermittent and less severe than
when she had started.

[18]        
Ms. Munoz’s maternity leave came to an end in mid-October 2008. 
Instead of returning to work at that time, she opted to take four additional
weeks of holiday.  She resumed her full-time managerial position on December 1,
2008.

[19]        
Ms. Munoz’s duties as a restaurant manager include scheduling the shifts
of employees and other managers, developing and training all staff, controlling
and ordering inventory and building restaurant sales and profits.  If the
restaurant runs low on a product, it is her responsibility to drive the company
car to another location and borrow whatever is required.  The expectation of
her physical involvement in the inventory process includes taking the deliveries
off the truck and storing them inside the freezer or cooler, and ensuring that
the front counter is properly restocked every three to four hours.  To be an effective
manager, Ms. Munoz must be highly proficient in the operation of all
workstations.  Part of her job is to regularly “shadow” new employees, providing
them with feedback and direction as they carry out their tasks.  She typically works
from 8:00 a.m. until 6:00 p.m.

[20]        
Ms. Munoz also explained the importance of cleanliness in her function
as manager.  Approximately twice per hour, she patrols the premises to ensure
that the entire restaurant, including the dining area, patio and washrooms, is
clean.  Before the First Accident, she would collect garbage as necessary,
sweep and mop as required, and occasionally scrub toilets.

[21]        
I accept Ms. Munoz’s evidence that her managerial role
requires her to spend about half of her time doing administrative-type tasks at
a desk, and the other half performing duties that take her away from her desk,
such as assisting at the fry station, bagging food items, working the
production line, and filling orders.  At peak times, she directs “all hands on
deck”, and all staff, herself included, are expected to be on the floor to
serve customers.

[22]        
In her capacity as a manager, Ms. Munoz is not subject to any
specific policy regarding sick days.  Whenever she needs time off for illness,
she simply communicates with the area consultant.  I find that before the
First Accident, she had seldom taken a sick day.

[23]        
The evidence satisfies me that in addition to experiencing limitations
around the house and with respect to caring for her daughter, certain of Ms. Munoz’s
job duties exacerbated the adverse repercussions of the First Accident.  As a
coping strategy, she delegated some of the more physically demanding tasks to
her shift managers and employees.  For example, she had them move supplies,
reach the stock on the high shelves, and do cleaning tasks that she would have
done herself before the First Accident.  However, there was no getting around
filling in at the front counter or working on the production line at the busy
times or when employees were absent.  Ms. Munoz found those repetitive activities
“very tough” and straining.

[24]        
Before the First Accident, Ms. Munoz easily and competently performed
all manner of the job tasks that presented her with difficulties afterward.  In
the aftermath, workdays typically left her exhausted, sore and frequently with
a headache.  She would arrive home as a fatigued and sometimes irritable wife
and mother who needed to lie down at the expense of spending quality time with
her husband and daughter.

[25]        
Ms. Munoz saw Dr. Wee five more times in 2008 with respect to
her accident-related injuries.

[26]        
I accept Ms. Munoz’s testimony,
corroborated by her husband, that before the pregnancy she was able to run for
at least 30 minutes with no difficulty and regularly attended a fitness
facility where she would work out twice per week, for approximately one to two
hours each time.  Even with the benefits of the rehabilitation program at Karp,
her back pain continued to restrict her ability to run and exercise.  Despite
her genuine desire to resume the kind of fitness routine and level of
recreational activity that she had enjoyed before the First Accident, the
injuries induced by the First Accident precluded her from doing so.  I would
make the point that her limitations in these respects were due mainly to her
low back pain and not because being a new mother placed greater demands on her free
time.

[27]        
Baby Theovanna and Ms. Munoz
have been close friends since 1997.  In the early years of their friendship
they were together “24/7”, going dancing, attending social functions and
“hanging out”.  They saw less of one other after each met their future spouses
in 2004.  However, they still managed to visit at least once a month
thereafter.

[28]        
Ms. Theovanna testified that
when she saw Ms. Munoz after the First Accident, she could see that her
friend was not able to pick up her infant daughter and recalled that
Ms. Munoz complained of being in pain, especially her low back, and said
that she would get an ache in her back when she put the baby to bed.

[29]        
In about May 2009, Ms. Theovanna
encouraged Ms. Munoz to give kickboxing a try.  She testified that
although Ms. Munoz was hesitant, she agreed to attend a few classes but
was unable to keep up with the pace, had to take frequent breaks and did
not participate fully as she was not able to do the push-ups or the high kicks.

[30]        
I find that although Ms. Munoz’s symptoms had improved, they had
not resolved and were ongoing at the time of the Second Accident.

●      Second
Accident (June 15, 2009) and Aftermath

[31]        
The traffic was stop-and-go and
moving slowly as Ms. Munoz travelled along Highway 1 on June 15,
2009.  She was stopped and waiting for the car ahead to resume moving when she
looked in her rear-view mirror and saw a car “coming on strong, like he wasn’t
stopping”.  The oncoming car, driven by the defendant Pierre Deshaine,
rear-ended Ms. Munoz’s car, causing her to shift forward in her seat.  She
recalled that the impact was “big” compared to the force of the First Accident,
and that it made a loud bang.

[32]        
According to Mr. Deshaine,
the collision was minor and not serious.  He had his foot on the brake as he
approached Ms. Munoz’s car but does not recall the speed he was moving
when the cars collided.  He claimed to have only nudged Ms. Munoz’s car. 
There was little to no damage to his vehicle beyond perhaps a bent license
plate.  In cross-examination, he agreed that seven days after the Second
Accident, he prepared a statement in which he described the impact as a small
“thump”, rather than the “nudge” he characterized it as at trial. 
Additionally, Mr. Deshaine agreed that upon impact his seatbelt tightened
and that unrestrained items laying on one of his seats fell to the floor of his
car, and conceded that one of those items may have been his briefcase.

[33]        
Mr. Deshaine admitted that
his memory of the incident was better at the time he composed his statement
than it was years later at trial.  Despite his insistence that there was no
difference between a nudge and a thump, I find that there is a distinction
in that the former implies far gentler contact than does the latter.  Moreover
and in any event, I conclude that Mr. Deshaine’s vehicle hit Ms. Munoz’s
car with sufficient force to make a loud sound and to push her forward in her
seat, causing items on his passenger seat to fall to the car floor. 

[34]        
Ms. Munoz testified that by the time she arrived home, she had a
terrible headache.  She saw Dr. Wee the day after the Second Accident reporting
symptoms of neck soreness, right shoulder and arm pain, and upper and lower
back pain.  Within a few days, or at most a week, she began to feel back pain
that was considerably more intense than the back pain she was trying to learn
to live with after the First Accident.  She had several subsequent appointments
with Dr. Wee in connection with her injuries throughout the remainder of
2009.

[35]        
In addition to experiencing increasing pain concentrated in the same
areas that had been hurt in the First Accident, Ms. Munoz says she also felt
increased numbness, tingling and pain radiating down her right leg.  As time
passed, she began to have those sensations in her left leg as well.  Ms. Munoz
was cross-examined about the discomfort she claimed to feel in her lower
extremities after the Second Accident.  The exchange was as follows:

Q         And can you describe your leg symptoms after
this incident?

A          After the third incident I can’t remember.
They just — I mean, the biggest part of my leg was the numbness and tingling.
It was more constant after the second accident. And then it became less
frequent. Then the third accident happened. I guess — I don’t think it was
anything different from the second one. It comes and goes, you know. Sometimes
it’s there; sometimes it’s not there.

Q         And it’s a numbness and tingling in what leg?

A          The right, for the most part.

Q         What about pain?

A          Pain, it’s hard to — it’s not — it
doesn’t really hurt. But just, I guess, the pain starts from like, the lower
— the right lower back down to my buttocks and then pain all the way
radiating down so just —

Q         Yes?

A          — more of this
numbness and tingling and kind of like it’s just — I don’t know. It’s hard to
put it. I don’t think it’s more of a pain. It’s more of a numbness.

[36]        
In closing submissions, defence counsel interpreted Ms. Munoz’s
testimony to mean that pain was not one of the symptoms she experienced in her
lower extremities.  In my view, that does not fairly capture the nuanced tenor
of Ms. Munoz’s evidence given at that time or the totality of her evidence
on the point.

[37]        
As will be discussed, Dr. Wee did not record any complaints of
numbness, tingling or pain in Ms. Munoz’s lower extremities during her
appointments in 2008 or 2009, and at times he charted “no sciatica”.

[38]        
I accept Ms. Munoz’s evidence that as a result of her injuries
she only missed a few days from work “here and there”, and was sometimes late
for her shifts.  She persuasively explained that, despite her worsened symptoms,
she was motivated to keep performing in her job for fear of being perceived as “slacking
off”.   As a coping mechanism in the sense of making her symptoms more endurable,
rather than take her four weeks annual holiday as a block, she took short
breaks throughout the year.

[39]        
Ms. Munoz found that working at the intense pace demanded at the
peak hours particularly aggravated her back symptoms.  As the manager, she had
some control over scheduling and was able to scale back her allotment of shift
work at the busiest times.  I am satisfied she continued to delegate
inventory duties to her assistant managers and other physical tasks to her work
crew as best she could.  Still, she struggled to discharge her routine work
duties.

[40]        
Mr. Munoz gave credible testimony about his wife’s declining state
after the Second Accident.  I accept his evidence that she complained to him of
pain “mostly every day”, and that she often required a nap for at least an hour
after arriving home from work.  He testified, and I accept, that her mood became
flat and volatile.

[41]        
Sare Ismail was also a strong witness for Ms. Munoz.  She has a
been a swing manager at McDonald’s for approximately 22 years and began working
under Ms. Munoz before the Second Accident.  Their shifts overlapped approximately
three to five days per week over a span of roughly three years.

[42]        
Ms. Ismail corroborated Ms. Munoz’s account of the job responsibilities
expected of a McDonald’s restaurant manager.  She credibly recalled that Ms. Munoz
would ask other employees for assistance in performing her job duties and, after
the Second Accident especially, that she regularly complained of pain while at
work.

[43]        
Ms. Ismail recounted that when they began working together,
Ms. Munoz would show up late for work relatively frequently, often telephoning
in advance to say that she was in pain and would be late.  Ms. Ismail
personally received those calls “lots of times”.  According to her,
Ms. Munoz’s tardiness improved over time but after the Second Accident, it
“started all over again”.

[44]        
Ms. Ismail noticed that after Ms. Munoz has been sitting at
her desk for approximately 20 minutes, she would get up and walk around, and
that when she had been working in the kitchen, she complained of pain and
discomfort within two hours or less.

[45]        
Ms. Ismail has worked with “more than several” McDonald’s
restaurant managers in her career and her overall perception was that Ms. Munoz
was a good manager.  However, on the heels of making that statement, she
proceeded to outline a number of shortcomings.  First, in Ms. Ismail’s
view, Ms. Munoz lacks the requisite level of “hustle” at her job.  She
also said that other restaurant managers do not ask their subordinate employees
to assist with their managerial duties, except when they are pregnant.  In
contrast, said Ms. Ismail, after the Second Accident in particular, Ms. Munoz
required help with tasks almost daily such as retrieving supplies from her car,
cleaning the washrooms and collecting the garbage.  She remarked that relying
on others to perform the manager’s duties took those employees away from their
regular stations and created a coverage issue that affected the smooth
operation of the restaurant.

[46]        
Ms. Ismail was a wholly credible witness and I accept her
evidence without exception.

[47]        
An MRI scan of Ms. Munoz’s thoracic and lumbar spine was taken on July 30,
2010 (the “2010 MRI”).  It reported mild narrowing and desiccation of the L4-5 disc
and a broad-based disc bulge at the L4‑5 level, extending to a greater
extent on the right with displacement and compression of the right L5 nerve
root.  The impression noted for the thoracic spine was a disc bulge at T4-5.

[48]        
Ms. Munoz followed up with Dr. Wee in June 2010.  On his
referral, she tried massage therapy for between one and two months.  It enhanced
her flexibility and alleviated her symptoms somewhat; however, the positive effects
were short lived.

[49]        
In early August 2010, Ms. Munoz switched to a chiropractor, Dr. Satra
Minhas, who practiced in the same clinic as the massage therapist.  On the
clinic intake form, Ms. Munoz referred to the Second Accident and ticked
the boxes that indicated she experienced neck pain, headaches, tight shoulder
muscles, mid and low back pain, a pinched nerve in her back, and pain and “pins
and needles” in her legs.

[50]        
Dr. Minhas testified at trial.  She recounted that, at the in-take
appointment, Ms. Munoz reported pain in her mid-back, low back, neck and into
her right leg.  In the course of roughly 23 or 24 sessions over the span of ten
months, Dr. Minhas primarily treated those areas of complaint, as well as Ms. Munoz’s
headaches.  Although she did not have the results of the 2010 MRI, Dr. Minhas
chose not to adjust Ms. Munoz’s lumbar back due to her concern there may
be a disc issue.

[51]        
Over time, Ms. Munoz enjoyed some symptomatic relief from Dr. Minhas’s
treatments and found they helped her cope with the pain.  Even so, her pain and
other symptoms lingered and did not resolve.

[52]        
At some stage, after the Second Accident, Ms. Munoz re-tried
kickboxing but was not able to do the manoeuvers.

[53]        
Ms. Munoz returned to Dr. Wee on August 23, 2010.  For
the first time, he charted her subjective complaints of symptoms associated
with sciatica.  In terms of objective findings at that appointment, Ms. Munoz
was able to do full straight leg raises without restriction.  Through the
evidence of Dr. D.G. Werry, the medical expert called by the defendants,
it was established that the straight leg test is a clinical test designed to
detect lumbar nerve root impingement.

[54]        
On June 3, 2011, Ms. Munoz saw Dr. Cochien at a local walk-in
clinic.  She complained that symptoms “shoots down her legs”, alternating
between her left and right.  Ms. Munoz testified that at that time she was
experiencing tingling, numbness and pain, seemingly originating in her lower
back and radiating from there down into her legs.

[55]        
Although still symptomatic, Ms. Munoz had been gradually improving when
the Third Accident occurred.

●      Third
Accident (June 21, 2011) and Aftermath

[56]        
On a summer afternoon in the parking lot in front of the McDonald’s managed
by Ms. Munoz, the defendant, Thi Le, reversed her minivan into the
front end of Ms. Munoz’s stationary vehicle.  Ms. Munoz did not hear noise
of a collision and does not recall whether her body or her vehicle moved upon
impact.  Ms. Le testified that she was backing up very slowly when she hit
Ms. Munoz’s vehicle and that the collision was “very light.”  She believed
her vehicle sustained no damage and she did not notice any on Ms. Munoz’s
car.  The evidence establishes that the force of the Third Accident was the
most minor of the three accidents at issue.

[57]        
Immediately after the Third Accident, Ms. Munoz carried on to work
and saw Dr. Wee the following day, reporting a sore neck and ongoing low
back pain from her previous accidents.  The following day she returned to
Dr. Minhas for treatment and had many follow-up chiropractic sessions thereafter. 
I accept Dr. Minhas’s evidence that, after the Third Accident,
Ms. Munoz’s sensations of numbness and tingling or “pins and needles” in
her legs became more frequent and generally appeared to be worse in their intensity
and duration.  She also explained that Ms. Munoz’s overall condition improved
or worsened depending on her activities, and that her work was especially “tough
on her”.

[58]        
Ms. Munoz’s perception was that the Third Accident had aggravated
her headaches, and neck, shoulder and back symptoms, as well as the numbness
and tingling in both of her legs.  She testified that, in the aftermath, her
chief problem was with her low back and the numbness and tingling that radiated
into her buttocks and down her legs and occasionally down into her feet.

[59]        
Ms. Munoz had a second MRI scan of her thoracic and lumbar spine on
July 7, 2011 (the “2011 MRI”).  Her L4‑5 disc bulge was reported to
be slightly more pronounced than had been shown in the prior imaging of the
2010 MRI.  The bulge was noted to have slight contact with the traversing L5
nerve roots, without dorsal displacement and, as before, was slightly worse on
the right side.  Mild bilateral neural foraminal narrowing at the L5 level
caused by the disc bulge was also reported.

[60]        
When Ms. Munoz next saw Dr. Wee on August 12, 2011,
approximately seven weeks after the Third Accident, she complained of symptoms
associated with sciatica and requested a referral to active rehabilitation.  On
that occasion, she was again able to perform the straight leg raising test
without restriction or pain.

[61]        
At some point, Dr. Minhas suggested to Ms. Munoz that she see
a kinesiologist.  In pursuance of that advice, in late December 2011 or
thereabouts, Ms. Munoz began the first of approximately 20 sessions
with Brian Jones, a kinesiologist.  For a period of approximately three to four
months, they met at a gym once per week where, under his direction and with his
guidance, Ms. Munoz  exercised, stretched and did strengthening
movements.  She found Mr. Jones’s rehabilitation program especially
helpful.

[62]        
Ms. Munoz’s last appointment with Dr. Wee was on December 19,
2011 at which time he charted recurrent low back pain and “no sciatica”.  Dr. Wee
agreed that the latter notation meant that Ms. Munoz was not exhibiting
symptoms consistent with sciatica on that particular day.  This evidence is
important and I will return to it later in my Reasons.

[63]        
On February 7, 2012, Ms. Munoz underwent a comprehensive functional/work
capacity evaluation conducted by Dominic Shew, an occupational therapist/functional
capacity evaluator over the span of seven hours.  The day after that session in
Mr. Shew’s follow-up, Ms. Munoz reported awakening with terrible pain
in her lower back, legs and thighs and a somewhat less sore upper back.  She
had trouble getting out of bed and walking due to the pain and took aspirin
several times before, during, and after her shifts.

[64]        
By this stage, Ms. Munoz had come to lose confidence in Dr. Wee’s
care, and felt frustrated that she was always the one who had to suggest
courses of treatment that she might follow.  When her symptoms had not
significantly subsided two days after Mr. Shew’s testing, instead of
consulting Dr. Wee, she returned to Dr. Cochien’s walk-in clinic and
was seen there by Dr. Gurdeep Parhar.  Dr. Parhar advised her to
continue with Mr. Jones.

[65]        
A third MRI was taken of Ms. Munoz’s lumbar spine on August 29,
2012 (the “2012 MRI”).  In addition to reporting the L4-5 disc narrowing, it
noted mild bilateral facet arthropathy and ligamentum flavum hypertrophy.  The disc
bulge at that level resulted in mild central canal encroachment and mild
encroachment on both traversing L5 nerve roots.

[66]        
In about October 2012, Ms. Munoz was transferred to the
McDonald’s Restaurant in Kerrisdale as the restaurant manager.  Ms. Ismail
and Ms. Munoz described it as a larger and busier location.  I find that
the move to Kerrisdale has required Ms. Munoz to put in more work hours
than had been necessary at her former restaurant.  I also find that her
administrative duties have increased slightly at the Kerrisdale location and
that the prolonged sitting, among other activities, aggravates her symptoms.

[67]        
The evidence establishes that Ms. Munoz was enjoying a gradual
improvement of her symptoms in the latter part of 2012.  However, in the summer
that year, she and her family moved into a new townhome without her mother (her
father had passed away in 2009) and the move caused a flare-up of her
symptoms.  Then, in the late fall, she endured a prolonged and significant
flare-up coinciding with her transfer to the busier Kerrisdale operation. 
During the latter episode, her shoulders were sore, she had headaches three to four
times per week, her low back caused her pain, and the sensations and discomfort
in her lower extremities had re-emerged.  Ms. Munoz’s sense was that
recent flare had produced symptoms that were as intense as they had been after
the Second Accident.  I accept her evidence.

[68]        
I am satisfied that Ms. Munoz performs the stretches and
exercises that she learned from Karp and from Mr. Jones as often as her
schedule reasonably allows, and typically with greater frequency during bouts
of intense pain.  Defence counsel endeavoured to show any inconsistency between
Ms. Munoz’s trial evidence on this matter and her discovery testimony
given in August 2010.  I am satisfied there is no testimonial
inconsistency of any importance.

[69]        
Ms. Munoz legitimately worries about her future employment and
whether she can continue in her job.

[70]        
Maintaining her full-time job has taken a heavy toll on the quality of Ms. Munoz’s
personal life and continues to do so.  Her symptoms have caused her fatigue,
interfered with sexual intimacy and made her prone to mood swings and
irritability.  She is unable to fully interact with her daughter as much as she
wants to or in the ways that she would like and she is precluded from being the
wife and mother she wishes to be.  She feels as though pain has overtaken her
life and desperately wants to “be back to normal”.

[71]        
I am satisfied that Ms. Munoz and her husband had a relatively
definite plan to have two children.  They have reconsidered that part of their
future together because Ms. Munoz is worried about her physical ability to
endure another pregnancy and raise two children in light of the adverse effects
of the accidents.

Expert Evidence

●      Dr. Edgardo
Wee

[72]        
Dr. Wee was called by Ms. Munoz as a witness in his capacity
as her treating family doctor and as an expert in the practice of family
medicine.

[73]        
Although Dr. Wee’s written opinion is dated June 24, 2011, it
does not refer to any of Ms. Munoz’s appointments with him after June 16,
2009.  At one stage, he attributed Ms. Munoz’s back injury and the state
of her spine as revealed on the 2010 MRI to the First Accident and agreed that
his written report was somewhat limited in its scope to the effects of the First
Accident.  However, when he was subsequently directed to the fact that the 2010
MRI had been done after the Second Accident, he opined that the first two accidents
had contributed to Ms. Munoz’s back injury.

[74]        
In Dr. Wee’s opinion, Ms. Munoz had been partially disabled
since the first two accidents.  At trial, he clarified the nature of her
disability by stating that she would definitely benefit from avoiding heavy
lifting and repetitive bending as part of her work.

[75]        
In cross-examination, defence counsel explored the notation of “no
sciatica” made by Dr. Wee throughout his medical records.  He explained
that he would not have asked Ms. Munoz whether she had sciatica per se
but rather, using ordinary language, would have asked her whether she had
symptoms associated with sciatica, such as numbness and radiating pain.

[76]        
Dr. Wee’s report is, to some extent, founded on an incomplete
medical picture of Ms. Munoz which was not sufficiently supplemented or
rectified by his evidence at trial.  This shortcoming detracted somewhat from
the quality of his opinion in the overall weighing of the expert medical
evidence.

●      Dr. Fadi
Tarazi

[77]        
 Dr. Tarazi, an experienced orthopedic surgeon, was called as an
expert witness on Ms. Munoz’s behalf.  He performed his initial
independent assessment of Ms. Munoz on September 15, 2010, which was
after the Second Accident but before the Third Accident.  He reassessed her on September 28,
2012, following the Third Accident.  By then, he had been provided with a copy
of Dr. Werry’s expert report dated May 31, 2011, and some additional
medical records.  Dr. Tarazi produced two expert reports.

[78]        
Dr. Tarazi explained that the intervertebral disc is a semi-fluid
mass (cartilage) which can cause pain and functional limitations when injured. 
This type of pain – called discogenic pain – arises from the disc itself and can
manifest locally in the back and refer into the buttocks and legs.  Dr. Tarazi
clarified that disc bulges in the lumbar spine typically produce discogenic
back pain but do not invariably give rise to nerve or neurogenic pain, even
where there is nerve compression or  impingement.  Thus, a person suffering
from neurogenic pain stemming from a disc bulge will probably also experience discogenic
pain, whereas an individual with discogenic pain may or may not have neurogenic
pain.

[79]        
Dr. Tarazi emphasized that the patient’s subjective reports of
symptoms suggestive of nerve impingement and neurogenic pain, correlated with
available MRI findings, are an essential component of the diagnostic process. 
Ms. Munoz told Dr. Tarazi that after the First Accident she experienced
pain in her right leg and thigh and numbness radiating down her right leg.  She
also reported that following the Second Accident, the frequency and severity of
those symptoms intensified and manifested in both her legs, more pronounced on
the right side.

[80]        
Dr. Tarazi testified that nerve impingement caused by a disc protrusion
is often brought on by an individual’s activities.  For that reason, objective
signs of such impingement or compression may not be elicited on a clinical
examination where the patient is not partaking in the aggravating activities.  He
elaborated on this point in his first report:

Although the [2010 MRI] scan only
demonstrated the compression on the right L5 nerve root it is important to note
that the MRI scans are done in the supine position when the intervertebral disc
pressure is minimized.  When the patient bends forward this pressure is increased
and therefore any disc bulges or herniations can potentially increase in size
and impinge further on the nerve roots causing radicular pain.  In
Ms. Munoz’s case it is likely that this L4‑5 disc bulge is also
impinging on the left L5 nerve root during activity causing her left leg pain
and numbness.  The compression is mostly on the right side and that is why most
of her leg symptoms are on the right side.  Her clinical presentation including
the pain and numbness in both legs and difficulty with physical activity is
consistent with probable bilateral L5 neural element impingement with activity.

[81]        
In terms of causation relative to the First Accident, Dr. Tarazi opined
that it:

(1)   most
likely caused neck and back soft tissue strains, which have resulted in neck
and back pain;

(2)   likely
caused the L4‑5 disc bulge that has been compressing Ms. Munoz’s right
L5 nerve root, resulting in back pain;

(3)   likely
aggravated the pre-existing disc desiccation/spondylosis at the T4‑5 level
and the pre-existing T4‑5 disc bulge, resulting in back pain; and

(4)   likely
aggravated the pre-existing disc desiccation/spondylosis at the L4‑5
level, resulting in back pain.

[82]        
Part of the reasoning for Dr. Tarazi’s opinion, that the First Accident
had likely caused the L4-5 disc bulge that was compressing Ms. Munoz’s
right L5 nerve root, was that it was quite unusual for a female of Ms. Munoz’s
young age to have a lumbar spine disc bulge with compression on the nerve root in
the absence of a significant injury.  He was also influenced by the fact that
she had never worked in a physically laborious job, and that her disc
desiccation/spondylosis at that time was not very severe.  Also relevant to Dr.
Tarazi’s opinion was that, even if the First Accident was not of significant
force, a rear-end collision would likely have caused a flexion/distraction
injury to Ms. Munoz’s lumbar spine and that the mechanics of such an
injury was capable of producing a disc protrusion of the lumbar spine.  He
noted that the same collision was considerably less likely to have caused the disc
bulge in Ms. Munoz’s thoracic spine because it is anatomically protected
by the ribs and hence more able to withstand a flexion/distraction injury.  In Dr. Tarazi’s
view, those factors, together with the onset of symptoms as reported to him by Ms. Munoz,
indicated that her disc bulge was most likely not due to a degenerative process
but rather had come about as a result of the First Accident.

[83]        
Dr. Tarazi opined that even had Ms. Munoz’s disc bulge been present
before the First Accident, it was asymptomatic, and the First Accident
aggravated it to the point that it caused pain as well as the radicular symptoms
in her lower extremities.

[84]        
Dr. Tarazi also made the important point that the hormonal changes
tied to Ms. Munoz’s pregnancy likely resulted in her ligaments being
weakened and lax throughout her body.  He noted that any pain connected to such
ligamentous laxity generally resolves for women after they give birth and
finish nursing.  The fact that Ms. Munoz’s low back pain had persisted
long after childbirth further bolstered his opinion that her ongoing back pain
was almost entirely causally related to the accidents.

[85]        
Dr. Tarazi believes that Ms. Munoz’s T4-5 disc bulge likely
pre-dated the First Accident, and he concluded it was not contributing to her
overall symptomology in any significant way.

[86]        
As to the Second Accident, Dr. Tarazi opined that it aggravated Ms. Munoz’s
earlier neck and back conditions.  More specifically, it is his view that the Second
Accident most likely aggravated the L4-5 disc bulge to a point where the right
L5 nerve root compression increased, thereby worsening Ms. Munoz’s right
leg pain and numbness, in addition to causing new left leg symptoms.

[87]        
When Ms. Munoz saw Dr. Tarazi on September 28, 2012, after the
Third Accident, she stated that her neck and back pain and the symptoms that radiated
down into her lower extremities had been temporarily aggravated by the Third
Accident but were gradually improving.  Dr. Tarazi understood from Ms. Munoz
that she estimated that on a good day her condition had improved by about 80% in
comparison to her pain after the Second Accident, which was the worst pain she
had ever experienced.

[88]        
In Dr. Tarazi’s opinion, the Third Accident most likely caused soft
tissue injuries to Ms. Munoz’s neck and lower back, in addition to
aggravating the disc desiccation/spondylosis in her thoracic and lumbar spine,
and aggravating her lumbar disc bulge.

[89]        
To Dr. Tarazi’s mind, it is more likely than not that Ms. Munoz
has suffered discogenic back pain in addition to neurogenic pain stemming from the
compression or irritation of her L5 nerve root by her protruding lumbar disc. 
As well, he concluded that her headaches were probably triggered by the
chronicity of her neck and back pain.   It is his view that the accidents have
served to increase the rate of progression of Ms. Munoz’s pre-existing
lumbar disc desiccation/spondylosis which has further compounded her ongoing
back pain.

[90]        
Ms. Munoz was involved in a motor vehicle accident in 2000 as well
as a minor incident in late 2009 that involved no personal injury.  It is
common ground among the medical experts that those accidents are of no
consequence in this case.

[91]        
In both of his reports, Dr. Tarazi recommended Ms. Munoz
continue to receive conservative treatment for her symptoms.  He endorsed her
participation in a comprehensive rehabilitation program, and that she have
ongoing guidance provided by a physiotherapist or kinesiologist.  He also suggested
an exercise program to help with her posture and improve her strength and core
functioning.  Dr. Tarazi favoured Ms. Munoz performing the exercises in a
gymnasium setting with proper exercise equipment and a gym pass.

[92]        
Dr. Tarazi acknowledged that while such treatments may not
significantly improve Ms. Munoz’s pain or function, they would help
prevent flare-ups of her symptoms.  In his initial report, he opined that in
the likely event she had a flare-up of pain then, despite having received such
treatments, she would still be completely disabled from all forms of employment
for about four to six weeks.  To manage those acute episodes, he recommended Ms. Munoz
take anti-inflammatory medication and a short course of narcotic medications.  Fortunately
for Ms. Munoz, those concentrated periods of disability have not come to
pass.

[93]        
Dr. Tarazi opined that with further conservative therapy,
Ms. Munoz’s neck pain would likely continue to improve over the next two
years.  He foresaw that during this time of recuperation, her neck pain would
likely be aggravated by heavy lifting and sudden movements of her neck, as well
as by impact activities such as running and jumping.

[94]        
To Dr. Tarazi, the most grim prognosis concerned Ms. Munoz’s lumbar
spine.  Although surgical intervention was not warranted at present, he pointed
out that the 2011 MRI confirmed that her lumbar disc bulge had increased in
size since the 2010 MRI and that progression of the disc bulge would generally
translate into greater pain in Ms. Munoz’s legs and a heightened risk of her
requiring lumbar spine discectomy surgery.  Dr. Tarazi explained that surgery
of that kind necessitates a recovery time of about two years, and that patients
are unlikely to ever be able to return to heavy, laborious jobs.

[95]        
At the same time, however, Dr. Tarazi acknowledged the difficulty
in accurately prognosticating the future need for operative intervention in
respect of Ms. Munoz’s lumbar disc condition.  He linked this aspect of
his prognosis to the nature of Ms. Munoz’s future activities.  In broad
terms, he opined that Ms. Munoz’s pain is related to certain activities
and therefore, as a general proposition, the more she engages in those
aggravating activities, the more she will experience pain.  If she restricted
her physical activities to light or moderate levels, his view is that her risk
of requiring any surgery, although still present, would be relatively low.  If,
on the other hand, she were to engage in higher levels of physical activity
such as medium or highly physically strenuous activities or repetitive work, he
thought she would most likely require surgery in the future.

[96]        
Although Dr. Tarazi maintained his opinion relative to the potential
future need for lumbar spine discectomy surgery, it is fair to say that, in his
second report and at trial, he offered a less pessimistic prognosis.

[97]        
In Dr. Tarazi’s view, Ms. Munoz is able to perform most of her
job duties as a restaurant manager.  He opined that she can continue to do her
job so long as she maintains her habit of taking frequent breaks to alleviate
her pain, alternates between sitting and standing positions, and avoids heavy
lifting and similar straining manoeuvres.  He suggests Ms. Munoz be restricted
to light or moderately strenuous jobs, and avoid heavy lifting and quick or repetitive
movements of her torso.  He opined these restrictions would most likely apply
on a permanent basis, whether or not Ms. Munoz required surgery.  He projected
that if she were to change careers in the future, she would most likely be
permanently limited to performing light or medium level jobs that would not
involve any significant lifting, squatting, kneeling or impact activities such
as running or jumping.

[98]        
Dr. Tarazi also predicted that Ms. Munoz will continue to need
help with domestic chores.  He stated that if she did not have the help at home,
she would need to hire others to perform domestic tasks on a permanent basis.

[99]        
As to recreational pursuits, Dr. Tarazi opined that Ms. Munoz would
likely be able to get back to riding her bicycle and could resume her annual outdoor
camping trip within twelve months of his initial assessment.  However, he considered
it unlikely that she would be able to resume running or do jumping activities
on a regular basis in the future.

●      Dr. Donald
G. Werry

[100]     The
defence called Dr. Werry to give expert medical opinion evidence.  He is
an experienced orthopedic surgeon whose established clinical practice includes
treating patients suffering from musculoskeletal trauma, as well as performing
surgical joint replacements of the hip and knee.  Dr. Werry performed two
independent assessments of Ms. Munoz, which form the foundation of his
reports dated May 31, 2011 and September 14, 2012, respectively.

[101]     Dr. Werry
opined that the First Accident probably resulted in soft tissue injury in the
form of muscle strain and possibly mild ligament sprain in Ms. Munoz’s neck
and upper and lower back.  He stated that her low back pain may also have had a
component of discogenic pain, which may be accompanied by referred pain
primarily to the upper part of her lower extremities.

[102]     Dr. Werry
shared Dr. Tarazi’s view that Ms. Munoz’s headaches were probably due
to the pain and stiffness of her neck muscles.   He also agreed with Dr. Tarazi’s
observation that the natural anatomic changes that occur during the late stages
of pregnancy may have increased Ms. Munoz’s susceptibility to sustaining a
low back strain at the time of the First Accident.  He added that the weakness
of her abdominal muscles arising from her pregnancy was a further aggravating
factor for her post-accident low back pain.

[103]     It is Dr. Werry’s
view that the changes in Ms. Munoz’s thoracic and lumbar spine are
probably degenerative in nature as opposed to being caused by trauma (i.e. the
accidents).  To the extent that his opinion is to the effect that the disc
bulge in Ms. Munoz’s lumbar spine is degenerative and not the result of
trauma, it marked a central point of divergence from Dr. Tarazi’s opinion.

[104]     Dr. Werry
regarded the Second Accident as more severe than the first.  It clearly was.  He
opined that the Second Accident probably caused neck and back muscle strain and
ligament sprain that served to reactivate or aggravate Ms. Munoz’s injuries
stemming from the First Accident.  Based on the description of Ms. Munoz’s
symptoms, combined with the fact that she had missed only occasional shifts at
work as a result of the Second Accident, Dr. Werry concluded the severity
of her soft tissue injuries caused by the Second Accident were probably mild to
moderate.

[105]     In his
second report, Dr. Werry reiterated his view that it was unlikely that the
Second Accident had produced significant acute injury to Ms. Munoz’s
lumbar disc.  He reasoned that, had that occurred, she probably would have
experienced significant low back pain and spasm and resultant disability, and
lost substantial time from work.  That said however, Dr. Werry conceded
that the First Accident may have activated symptoms of a previously
asymptomatic thoracic and lumbar spine degenerative disease and contributed to Ms. Munoz’s
pain.  He went on to opine that the Second Accident may have activated or aggravated
symptoms arising from that degenerative lumbar disc, also causing pain.

[106]     Dr. Werry’s
view is that the Third Accident probably aggravated Ms. Munoz’s underlying
degenerative process and caused mild soft tissue injury to her low back.

[107]     Drs. Tarazi
and Werry disagreed about whether Ms. Munoz’s disc bulge caused her sciatica,
defined by Dr. Werry as lower extremity pain and symptoms that are classic
signs of lumbar nerve root compression/irritation.

[108]     Dr. Werry
testified that the diagnosis of sciatica was often not straightforward and that
the symptoms may arise shortly after an acute, severe onset of back pain or may
have far more mild and subtle presentation.  He also agreed that such symptoms
come and go, such that on one day a physical examination, including straight
leg testing, may prove normal and elicit no signs and on another may reveal
abnormalities.  He agreed further that lumbar neurogenic pain, particularly L4‑5
symptoms, can be triggered with activity, and that forward bending can cause
further nerve impingement and aggravate pain levels.

[109]     Throughout
his written reports and testimony, Dr. Werry emphasized that the MRI
imaging of Ms. Munoz’s lumbar spine, and specifically her disc bulge and
its relationship to the L4-5 nerve roots, must be interpreted in light of her
clinical history and clinical examinations.  He agreed this would encompass
Ms. Munoz’s subjective complaints.  His basic point, and one agreed to by
Dr. Tarazi, was that compression or irritation of the nerve root does not
invariably give rise to symptoms.

[110]     In his
reasoning, Dr. Werry was influenced by what he deemed to be a lack of documented
lower extremity symptoms or physical examination signs to suggest lumbar nerve
root irritation, as well as the fact that Dr. Wee had repeatedly charted
“no sciatica”.  After Dr. Werry carried out his initial physical
examination of Ms. Munoz, she told him she felt symptoms in her low back
and lower extremities, and radiating pain down her lateral thigh and leg.  He admitted
he was not surprised by that.  In his second report, he mentioned that Ms. Munoz
had experienced symptoms radiating into her right and left lower extremities in
2011 and perhaps earlier.  While on the one hand he allowed the possibility
that those symptoms were due to mild irritation of Ms. Munoz’s lumbar nerve
roots, on the other, he appeared to discount the likelihood because, on his
reading, the medical records did not indicate that her lower extremity symptoms
were connected to any lumbar nerve root compression/limitation.

[111]     On Dr.
Werry’s analysis, the prospect of any surgical intervention to treat Ms. Munoz’s
lumbar disc bulge was, accordingly, highly unlikely.  His rationale was that surgery
is generally only indicated where the associated nerve root compression causes
unremitting or worsening significant symptoms and signs, such as severe lower
extremity pain, muscle weakness, loss of reflexes and sensation, and bladder
dysfunction, which were not present in Ms. Munoz’s case.  As well,
Dr. Werry remarked that general statistics show that lumbar disc
protrusions – even those that cause lumbar nerve root deficits – often resolve
over time without surgery.

[112]    
In cross-examination, Dr. Werry was reminded that, in his own
physical examination of Ms. Munoz on May 31, 2011, he had elicited
left lower extremity symptoms when conducting a test involving her rising from
a full squat position.  He was also confronted with the following relatively
extensive documentary evidence of Ms. Munoz’s subjective complaints and some
findings of lower extremity symptoms, none of which he had mentioned in his
report:

–          right leg feels numb:  August 4, 2010 – Dr. Minhas’s
patient history intake;

–          left sciatica:  August 23, 2010 – charted
by Dr. Wee;

–          right leg numbness:  January 7, 2011 – charted
by Dr. Minhas;

–          shoots down legs, right or left alternate: 
June 3, 2011 – charted by Dr. Cochien (mistakenly referred to as Dr.
Parhar’s records by plaintiff’s counsel in the cross-examination of Dr. Werry);

–          low back pains with right sciatica:  August 12,
2011 – charted by Dr. Wee;

–          complaints of right lateral thigh, lateral
calf – numb/tingly, dull ache … right leg pain … pain right leg & lower
back … L4/L5 disc bulge.  Reduce exertion, aggravation:  September 13,
2011 – Dr. Minhas’s initial report to ICBC; and

–          right leg pain…leg
symptoms on examination and testing…. right leg numb/tingling and decreased
deep tendon reflexes in right leg on neurologic examination and testing …..and
motor weakness right leg +4/+5:  October 28, 2011 – Dr. Minhas’s progress
report to ICBC.

[113]     Dr. Werry
agreed that a number of the above notations had potential significance relative
to a diagnosis of sciatica.  He also agreed that numbness or tingling in the
foot, which I find Ms. Munoz experienced after the Third Accident, and
possibly earlier, can be a classic sign of sciatica.

[114]     In
cross-examination, Dr. Werry ultimately elevated the possibility of nerve
root involvement in Ms. Munoz’s case, to a “strong possibility”, all the while
cautioning that it was not a “certainty” that the MRI scans accounted wholly or
mostly for her reported symptoms.

[115]     Dr. Werry
testified that degenerative disc disease is a permanent condition where the
symptoms typically wax and wane and, in Ms. Munoz’s case, will probably
give rise to ongoing problems in the future.  He confirmed that the
degenerative changes in her spine, including the lumbar disc protrusion, have
the potential of causing a neurological deficit in the future.  He further confirmed
that if she has actually been experiencing nerve root irritation, that would
act as a compounding problem superimposed on her discogenic pain and other
symptoms associated with her degenerative disc.

[116]     No doubt
influenced by his conclusion that Ms. Munoz was not experiencing symptoms
linked to nerve compression/irritation, Dr. Werry forecasted a rosier picture
of her future than had Dr. Tarazi.  He considered the prognosis for her
neck pain to be good provided that she maintained good posture.  He also acknowledged
that Ms. Munoz may continue to experience intermittent mid back pain.  He stated
that she could minimize those symptoms by maintaining a regular exercise and
stretching program, utilizing proper lifting techniques, and avoiding heavy
lifting, much as she had been doing since the First Accident.

[117]     As for Ms. Munoz’s
low back, Dr. Werry’s view was that she may continue to have such pain,
particularly with any future pregnancies, but that it was not “inevitable” that
she would experience a worsening of her low back pain in the future.  He was
not surprised that, as recently as December 2011, the repetitious movements
required in “working the line” seemed to cause Ms. Munoz real discomfort. 
However, he regarded Ms. Munoz’s report that she had not experienced lower
extremity symptoms for the first six months or so of 2012 as a promising
indicator for her future.

[118]     Dr. Werry
observed that prolonged sitting was an aggravating factor for Ms. Munoz’s
low back pain and was to be avoided.  He considered it likely that she would
experience periodic flares of low back pain with heavy lifting or other heavy
physical activity, and that those activities should likewise be avoided in
favour of lighter and modified duties along the lines Dr. Minhas had recommended
in her report to ICBC.  In cross-examination, he agreed that she should
continue with modified duties at work.  He also agreed that chiropractic care
and massage therapy would provide symptomatic relief of pain to Ms. Munoz
when she experienced an aggravation of her symptoms.  Dr. Werry also advocated
a self-directed regimen of stretching and some exercise activity to promote her
aerobic fitness.  He agreed that Ms. Munoz may have to take analgesics and
anti-inflammatories in conjunction with such treatments in order to cope with
episodic flares of her symptoms.  As mentioned, however, he thought it unlikely
that she would require more invasive therapies such as injections or surgery.

[119]     Dr. Werry
predicted that Ms. Munoz should be capable of continuing her career as a
restaurant manager so long as she maintains her current good health and avoids
heavy lifting and intense physical activity.

[120]     Dr. Werry’s
treatment of the medical records as they concerned the documented subjective
complaints and findings of Ms. Munoz’s sciatica-like symptoms struck me as
highly selective and even unbalanced.  The rationales he purported to offer for
failing to address those complaints and findings in his overall analysis were
unsatisfactory.  Although I do not reject Dr. Werry’s opinions across
the board,  his omissions leave the impression of partiality and cast a
compromising cloud over the quality of his opinions.

●      Dominic
Shew, Occupational Therapist/ Functional Capacity Evaluator

[121]     As mentioned,
Mr. Shew conducted a one-day assessment of Ms. Munoz on February 7,
2012.  His functional/work capacity evaluation report dated February 14,
2012 was tendered as an expert report as part of Ms. Munoz’s case.  The
defendants did not require Mr. Shew to attend for cross-examination.

[122]     Mr. Shew assessed
Ms. Munoz’s physical and functional abilities and limitations in relation
to the demands of her occupation as defined by the National Occupational
Classification (“NOC”) and Dictionary of Occupational Titles (DOT), and commented
on her ability to perform productive, competitive employment as a restaurant
manager.  He found that Ms. Munoz provided high levels of physical effort
on testing, and that her subjective reports of abilities and limitations were
generally consistent with his assessment findings.

[123]     Ms. Munoz
demonstrated the basic strength to safely perform her line of work.  However, Mr. Shew
noted that she had difficulties, and reported an increase in her symptoms, when
manoeuvering heavier loads, indicating she would continue to benefit from
assistance with the more physically demanding tasks in order to remain safe and
productive in her job.  The physical test results also showed that tasks
requiring heavier demands should be performed only occasionally.

[124]     Ms. Munoz
demonstrated restrictions in tolerating tasks that necessitated overhead
reaching, bending and stooping, and squatting, suggesting that she is not well-suited
to work that requires those physical demands on a frequent basis.  However,
because her present position typically requires that she perform such demands for
shorter periods only, Mr. Shew anticipated that Ms. Munoz would be
able to safely manage brief periods of activity requiring such demands.

[125]     Mr. Shew reported
on demonstrated limitations to her toleration of tasks that required
work-intensive static positioning of the spine while repetitively reaching in
front and to the sides of her body in a seated position, such as that
encountered when performing computer or paperwork.  For that reason, he
concluded Ms. Munoz will continue to require the flexibility to change
positions at work to manage her symptoms and to remain functional when
performing those kinds of tasks over extended periods.

[126]     Mr. Shew
concluded that overall Ms. Munoz is likely safe and able to continue gainfully
with her current work on a part and full time basis.  He cautioned, however,
that because of her difficulties in managing the repetitive body positions, she
requires the ability to change positions and take breaks throughout her shift. 
He made the point that the decline in her speed and function over the course of
the one day evaluation suggested that if tasks requiring low level positions,
overhead reaching and computer work are required on a more frequent basis,
there would likely be a further reduction in her productivity as her work day
or work week progresses.

[127]     Mr. Shew
credits Ms. Munoz’s ability to continue to work despite her ongoing
difficulties as being likely due to the flexibility available to her in her
current management position, which allows her to change positions from sitting
to standing throughout her shift, and to delegate the more physically demanding
duties to others.  His view is that if Ms. Munoz were to change
occupations or if her job demands were to change or her accommodations at work
removed, she would likely have difficulty achieving and maintaining
expectations in terms of productivity in a more structured and competitive work
environment.  Mr. Shew further opined that her ability to compete for certain
jobs is likely reduced due to her decreased ability to complete and sustain
heavier and more physically demanding activities.

[128]     In the result,
his evaluation is that her overall capacity in an open job market has been
reduced due to her ongoing limitations.

[129]     Mr. Shew’s
clinical observations and test results indicate that Ms. Munoz is capable
of doing light to moderate homemaking chores, such as cleaning countertops and
dusting, so long as she paces herself appropriately throughout the day and
week.

[130]     Mr. Shew
recommended that Ms. Munoz wear appropriate supportive and orthopaedic footwear. 
He also endorsed the provision of an ergonomic assessment to identify the most
appropriate ergonomic equipment and modifications to Ms. Munoz’s
workstation, as well as to provide suggestions regarding her body mechanics to
best manage her symptoms and maintain her productivity.

OVERVIEW OF THE PARTIES’ POSITIONS

[131]     Ms. Munoz
asserts that in addition to soft tissue injuries to her neck, shoulder and
back, the accidents caused a disc protrusion in her lumbar spine and activated
a previously asymptomatic degenerative spinal condition.  She says the lumbar
disc bulge injury has resulted in nerve root compression/irritation that causes
tingling, numbness and pain in her lower extremities and into her feet.  Her
position is that any future pregnancy will significantly aggravate her symptoms
and, beyond that, she is likely to be plagued by episodic flare-ups and the
associated functional limitations they pose indefinitely, and may require
surgery which would completely disable her from work for about two years.  Ms. Munoz
seeks an award for non-pecuniary loss, future cost of care/housekeeping
services or loss of housekeeping capacity, and the loss of future earning
capacity.  The latter head of damages is the most contentious.  The parties
have agreed to the amount of special damages.

[132]     The
defendants concede that Ms. Munoz sustained mild soft tissue injuries to
her neck, shoulder and back as a result of the accidents.  They reject the
contention that she has suffered any symptoms of nerve irritation associated
with her lumbar disc bulge specifically, or from the accidents more generally. 
Alternatively, the defendants say that, to the extent she has experienced such
symptoms, the onset of them did not coincide with any of the accidents and were
not caused by them and, in any event, are minor in their impact on her
functionality.  They assert Ms. Munoz has suffered no impairment of her
earning capacity nor shown there is a substantial possibility that any
diminishment of her earning capacity would result in a pecuniary loss.  Drawing
on Dr. Werry’s opinion, they assert that that her prognosis is far
brighter than as predicted by Dr. Tarazi, and that she will continue
on a path of recovery and will not require back surgery in the future due to
the ill-effects of the accidents.

CAUSATION

●      Basic
Principles

[133]     The
primary test used in determining causation in negligence is the “but for”
test.  The plaintiff bears the onus of proving, on a balance of probabilities,
that “but for” the defendant’s negligent act or omission, the injury would not
have occurred: Athey v. Leonati, [1996] 3 S.C.R.; 458 [Athey]; Blackwater
v. Plint, 2005 SCC 58 [Blackwater]; Clements v. Clements,
2012 SCC 32 [Clements]; Ediger (Guardian ad litem of) v.
Johnston, 2013 SCC 18 [Ediger].  Inherent in the test is the
requirement that the injury would not have happened without the defendant’s
negligence: Clements at para. 8; Ediger at para. 28.

[134]     The
plaintiff need not establish that a defendant’s wrongful conduct is the sole
cause of his injury.  So long as a substantial connection between the harm and
the defendant’s negligence beyond the “de minimus” range is established,
the defendant will be fully liable for the harm suffered by a plaintiff, even
if other causal factors, which the defendants are not responsible for, were at
play in producing that harm: Farrant v. Laktin, 2011 BCCA 336; Athey;
Resurfice Corp. v. Hanke, 2007 SCC 7.

[135]     The law
has long recognized that plaintiffs frequently encounter substantial practical
difficulties in proving causation.  In the seminal decision of Snell v.
Farrell, [1990] 2 S.C.R. 311, the Supreme Court of Canada held that the
causation test does not demand scientific precision and is not to be applied
too rigidly.  Causation is a practical question of fact which can best be
answered by ordinary common sense.

[136]     The
concepts of etiology in the medical sphere and causation at law are not
synonymous.  The reason is that the “but for” test need only be proved on a
balance of probabilities, in contrast to the more rigorous standard that endeavours
to approach the level of scientific certainty familiar to the medical field: Midgley
v. Nguyen, 2013 BCSC 693 [Midgley], at para. 172.

[137]     In light of
the fact that Ms. Munoz was involved in three accidents, a further issue arises
as to whether the injuries she sustained are divisible or indivisible as
between the three collisions.  The determination is a question of fact and is
relevant to the question of causation, as well as to damages: Moore v. Kyba,
2012 BCCA 361 [Moore] at paras. 36 and 37.  Divisible injuries are those
capable of being separated and having their damages assessed independently. 
Indivisible injuries are those that cannot be separated out and have liability
attributed to the constituent causes and their damages assessed independently: 
Athey; Bradley v. Groves, 2010 BCCA 361 at para. 20; Blackwater.

[138]     At the
causation stage, the determination of the plaintiff’s injury or injuries as
divisible or indivisible is relevant to the question of what a particular defendant
is liable for.  In assessing damages, the characterization is relevant to the
amount of compensation the plaintiff is entitled to receive from a defendant: Moore,
at paras. 37 and 41.

[139]     In the
case at hand, the evidence amply establishes that the injuries flowing from the
Second and Third Accidents merged with the residual injuries of the First Accident
and with each other to create a single injury that is not attributable to one
particular defendant and cannot be distinguished from one another.   No cogent
arguments were made by either side to the contrary.  Moreover, I understood
defence counsel to concede in closing argument that Ms. Munoz’s injuries were
indivisible.

[140]    
 The main purpose of defence counsel calling the defendants to testify
at trial was to support a finding that all three accidents were relatively
minor in nature and, implicit in that, the notion that the injuries sustained
by Ms. Munoz were likewise minor.  This Court has repeatedly observed that
such reasoning is dubious in the absence of cogent evidence that weaves those
core propositions together: Gordon v. Palmer (1993), 87 B.C.L.R. (2d) 236;
Sooch v. Snell, 2012 BCSC 696.  As Dley J. instructively remarked
in Tarzwell v. Ewashina, 2011 BCSC 1464, at para. 51:

[51]      … Even if one accepts
the defendant’s version of the collision, as being minor with no resulting
physical damage to either car, that does not default to an assumption that
injuries could not result or must be minor.  The severity or extent of damage
to a vehicle is not determinative of the consequences to the vehicle occupants.

[141]     There was
no evidence that the force of each of the three collisions in this case could
not have produced the physical symptoms complained of by Ms. Munoz or are inconsistent
with the nature, severity or long-lasting duration of such symptoms.  Indeed,
the only evidence that touched on the point came from Dr. Tarazi who
opined that even if the force of the First Accident had been minor, the
mechanics of the injury were such that it could have caused Ms. Munoz’s
lumbar disc bulge.

●      Analysis

[142]     Ms. Munoz’s
credibility and the reliability of her evidence are key in determining the
nature and severity of her injuries caused by the accidents, and ultimately the
quantum of her damages.  The assessment is also material to the weight to be
given to the medical opinions to the extent that they are fastened upon her
subjective reporting, perception of her symptoms, and the recitation of her
condition before, between and after the accidents.

[143]     Ms. Munoz’s
credibility was not impugned at trial.  She emerged as a forthright, honest and
reliable witness.

[144]      At the
time of the First Accident, Ms. Munoz’s back was susceptible to injury due
to her pregnancy.  The evidence establishes that, as a result of the First
Accident, she suffered headaches and soft tissue injuries to her neck,
shoulders and along her spine.  Her low back pain emerged as the most enduring
and functionally limiting injury stemming from the First Accident.

[145]     On the question
of the causation of Ms. Munoz’s lumbar disc bulge, I prefer Dr. Tarazi’s
opinion over Dr. Werry’s, and conclude that it is more probable than not
that it was caused by the trauma of the First Accident.  The preponderance of
the evidence also establishes that the First Accident activated Ms. Munoz’s
asymptomatic disc desiccation/spondylosis in her thoracic and lumbar spine.

[146]     I accept
Ms. Munoz’s testimony that after the First Accident she experienced sensations
of numbness and tingling radiating from her low back into her right leg.  I am
not concerned that she did not report such symptoms to Dr. Wee until after
the Second Accident.  This is because the evidence demonstrates that these
symptoms were very mild and fleeting and did not become terribly bothersome to Ms. Munoz
until after the Second Accident.  It was her low back and, to a lesser extent,
her neck and headaches that were her dominant problems and interfered with her
work and life activities after the First Accident and, understandably, they were
the main focus of her discussions with Dr. Wee within that time frame.  Additionally,
my assessment of Dr. Wee’s testimony is that his notations of “no
sciatica” at any given appointment goes no farther than to convey that at the
particular visit, Ms. Munoz was not experiencing or complaining of such
symptoms, and does not denote that she reported having at no time experienced
them.  This is borne out by the fact that, on December 19, 2011,
Dr. Wee charted “no sciatica”, even though she had previously complained
to him of experiencing symptoms of that kind, and it is abundantly clear on the
evidence that within that general period, she had been treated by
Dr. Minhas in respect of such symptoms.

[147]     At the
time of the Second Accident, Ms. Munoz had not fully recovered from the
sequelae of the First Accident.  The preponderance of the medical evidence,
which is consistent with Ms. Munoz’s credible self-account and the lay
evidence, establishes that the Second Accident aggravated the ill-effects of
the First Accident.  More particularly as concerns her sciatica-type symptoms, I find
it more likely than not that the Second Accident aggravated Ms. Munoz’s L4‑5
disc bulge to the point of increasing the compression on her L5 nerve root and significantly
worsening her right leg symptoms, as well as causing symptoms in her left leg. 
I conclude that after the Second Accident the nature, severity and
frequency of Ms. Munoz’s symptoms of pain, numbness and tingling or, as
she sometimes characterized it, the pins and needles, radiating into her lower
extremities worsened and her overall low back condition was significantly
aggravated.

[148]     The
evidence satisfies me that Ms. Munoz’s neck, back and the symptoms related to
her lower extremities, although gradually improving, were lingering and had not
resolved when the Third Accident took place.  The probabilities of the evidence
are persuasive that the Third Accident caused additional soft tissue injury to
Ms. Munoz’s already compromised neck and lower back, aggravated the earlier
activated desiccation/spondylosis in her thoracic and lumbar spine and her L4‑5
disc bulge.

DAMAGES

●      Basic
Principles

[149]     The
essential purpose of damages is to restore, as best as is possible with a monetary
award, an injured plaintiff to the same position he or she would have been in
had the negligence not occurred.

[150]     People
have different physical and psychological susceptibility to injuries.  A
fundamental principle in the assessment of damages is that the defendant must
take the plaintiff as she is.  A plaintiff whose unique psychological makeup or
pre-existing physical condition makes her more vulnerable to sustaining injury
is to be compensated for the entire extent of her injury, both physical and/or
psychological, caused by the defendant’s negligence.  This is so even where due
to some unique feature of the plaintiff, the injury was greater or of a more
dramatic or severe or different type than one would expect an average person to
sustain.  It is no answer for a defendant to say that the plaintiff would have
suffered less injury or a different kind of injury or no injury at all if he or
she had been less susceptible or vulnerable.  It is the impact of the defendant’s
negligence on the actual plaintiff, and not on a fictional one, that is
relevant for compensatory purposes: Athey.

[151]     Equally as
fundamental is that a defendant is not expected to put the plaintiff in a
better position than the plaintiff had been in the moment before the accident
happened.  It is the difference between the plaintiff’s original position with
any attendant risks and shortcomings (e.g. a pre-existing condition) just
before occurrence of the negligent act or omission, and the injured position
after and as a result of such act or omission, that comprises the plaintiff’s
loss: Athey at paras. 34‑35.

[152]     A
pre-existing condition, latent or active, is part of the plaintiff’s original
condition.  Where there is a measurable risk that a pre-existing condition
would have resulted in a loss to the plaintiff in the future without the
defendant’s negligence, that risk of loss must be taken into account in
assessing certain heads of damages and serves to reduce the award: Athey
at para. 35; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012
BCCA 331.  The contingency of a pre-existing condition manifesting on its own to
cause a loss at some point does not have to be proven to a certainty – it is
given weight according to its relative likelihood: A.(T.W.N.) v. Clarke,
2003 BCCA 670.

[153]     There was
no cogent evidence that Ms. Munoz’s pre-existing disc
desiccation/spondylosis in her thoracic or lumbar spine would have become
symptomatic in the absence of the accidents.  Indeed, the only evidence on the
point came from Dr. Tarazi in cross examination.  He explained that the
accidents had accelerated Ms. Munoz’s degenerative process in her lumbar
spine and that her degeneration would have likely progressed gradually and
“very slowly” over many years had the accidents not happened, and even then,
such degeneration would not have necessarily entailed symptoms.

[154]     I am
not satisfied that there was a measurable risk that Ms. Munoz’s
pre-existing conditions would have detrimentally affected her in the future
regardless of the accidents.

●      Non-Pecuniary
Damages

[155]     Ms. Munoz
seeks non-pecuniary damages in the amount of $110,000.  The defendants counter
that an award in the range of $30,000 to $35,000 would be fair in the
circumstances.

[156]     Non-pecuniary
damages are intended to compensate a plaintiff for the pain, suffering and loss
of enjoyment of life and of amenities experienced as a result of the defendant’s
negligence.  They are meant to compensate for such damages suffered to the date
of trial and those that the plaintiff will suffer into the future.

[157]     The award
should be fair and reasonable for both parties as those concepts are measured
against the adverse impact of the particular injuries on the particular
plaintiff: Hunt v. Ugre, 2012 BCSC 1704 at para. 176.  While
fairness is assessed by reference to awards made in comparable cases, because
each case is decided on its own unique facts and calls for an individualized
assessment, it is neither possible nor desirable to develop a “tariff”: Lindal
v. Lindal, [1981] 2 S.C.R. 629 at 637; Dilello v. Montgomery, 2005
BCCA 56 at 25.  The process is one of assessment and is not amenable to
mathematical precision: Drodge v. Kozak, 2011 BCSC 1316; Trites v.
Penner, 2010 BCSC 882; Lindal.

[158]     In Stapley
v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A. set out a
non-exhaustive list of factors to be considered in awarding damages under this
head.  They include: the plaintiff’s age; the nature of the injury; the
severity and duration of the pain; disability; emotional suffering; loss or
impairment of life; impairment of family, marital and social relationships;
impairment of physical and mental abilities; loss of lifestyle; and the
plaintiff’s stoicism.

[159]     I do not
propose to reiterate my summation of the nature and progression of Ms. Munoz’s
symptoms caused by the accidents and their adverse impact on her life.  Suffice
it to say that, among other deficits, the accidents have left Ms. Munoz
with a lumbar disc bulge which has expanded and is impinging on her L5 nerve
root and causing her intermittent symptoms and neurogenic pain in her lower
extremities.  Her degenerative lumbar disc desiccation/spondylosis is a
permanent condition and is compounded by her symptoms of nerve
compression/irritation.

[160]     Ms. Munoz
was in her early 30s at the time of trial.  For several years now, she has
encountered a constellation of injuries, the most enduring and problematic of
which has been her low back pain and, to a lesser degree, the symptoms
radiating into her lower extremities.  Although her condition has improved, she
is susceptible to episodic flares of her symptoms which may persist for weeks
at a time merely as the result of performing commonplace tasks, manoeuvres and
physical postures, including her work duties, household chores and lifting her
child.  She has variously suffered from and continues to experience soft tissue
pain, discogenic pain and neurogenic pain, all stemming from the accidents.

[161]     Ms.
Munoz’s injuries have imposed functional limitations on her at work and in her
leisure time.  The ill-effects of the accidents have severely curtailed her
ability to engage in the fitness activities she enjoyed before the First
Accident.  They have also made it difficult for her to pursue or fully partake
in camping and other recreational activities that she did before the First Accident. 
In saying this, I acknowledge that after the accidents Ms. Munoz has
continued to socialize periodically with Ms. Theovanna and their core
group of friends, and has arranged, and sometimes hosts, those get-togethers.

[162]     Also of
significance for this young woman is that her injuries have interfered with her
intimate relationship with her husband.  They have also negatively affected the
quality and enjoyment of the time she has spent with her daughter since
infancy.  Understandably in the circumstances, her mood has flattened.

[163]     Although
Ms. Munoz’s symptoms wax and wane, they nonetheless persist and still
fatigue and restrict her.  Ms. Theovanna noticed the lack of energy in her
old friend and said that Ms. Munoz “seemed more alive” before the
accidents than afterward.  I accept that is the case and conclude that the
after-effects of the accidents are to blame for the unwelcome change.

[164]     As
I have noted in past cases, enduring pain, even when it is intermittent
and its intensity fluctuates, takes a toll on everyday living and casts a pall
over the pleasures of life.  The medical evidence indicates that Ms. Munoz will
be prone to  periods of aggravation of her pain and other symptoms for years to
come and likely indefinitely.  Trying to cope with the pain, even during the
times that it seems to be under control, has become part of her everyday life
and is frequently a struggle.

[165]     While the
progression of Ms. Munoz’s lumbar spine condition has not proved to be as
bleak a picture as initially painted by Dr. Tarazi, her lumbar disc bulge
has grown and continues to be aggravated by activities of work and life.  The
prospect of discectomy surgery cannot be ruled out.  The brighter prognosis
offered by Dr. Werry was fastened to his conclusion that Ms. Munoz
was not experiencing symptoms suggestive of nerve root compression/irritation,
however, I have found otherwise.

[166]     I have
reviewed all of the cases placed before me by counsel and do not propose to
review them in any detail as they provide general guidelines only.  Having
considered the evidence and the case authorities, in my opinion a fair and
reasonable award for Ms. Munoz’s non-pecuniary damages is $70,000.

●      Loss
of Earning Capacity

[167]    
The legal framework that informs an award for loss of earning capacity
was helpfully summarized by Dardi J. in Midgley at
paras. 236-240:

The recent jurisprudence of the Court of Appeal has affirmed
that the plaintiff must demonstrate both an impairment to his or her earning
capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a “capital
asset” approach: Perren v. Lalari, 2010 BCCA 140 at para. 32.
Regardless of the approach, the court must endeavour to quantify the financial
harm accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y at para. 183.

As enumerated by the court in Falati v. Smith, 2010
BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform the
assessment of loss of earning capacity include the following:

(i) The standard of proof in relation to hypothetical or
future events is simple probability, not the balance of probabilities: Reilly
v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be
given weight according to their relative likelihood: Athey at para. 27.

(ii) The court must make allowances for the possibility that
the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency must show a “realistic
as opposed to a speculative possibility”: Graham v. Rourke (1990), 75
O.R. (2d) 622 at 636 (C.A.).

(iii) The court must assess damages for loss of earning
capacity, rather than calculating those damages with mathematical precision: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43.
The assessment is based on the evidence, taking into account all positive and
negative contingencies. The overall fairness and reasonableness of the award
must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.

Although a claim for “past loss of income” is often
characterized as a separate head of damages, it is properly characterized as a
component of loss of earning capacity: Falati at para. 39. It is
compensation for the impairment to the plaintiff’s past earning capacity that
was occasioned by his or her injuries: Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at
paras. 31-32; X. v. Y at para. 185.

While the burden of proof relating to actual past events is a
balance of probabilities, a past hypothetical event will be considered as long
as it was a real and substantial possibility and not mere speculation: Athey
at para. 27.

This court in Falati at para. 40 summarized the
pertinent legal principles governing the assessment of post-accident, pre-trial
loss of earning capacity and concluded that:

[40] … the determination of a plaintiff’s
prospective post-accident, pre-trial losses can involve considering many of the
same contingencies as govern the assessment of a loss of future earning
capacity. … As stated by Rowles J.A. in Smith v. Knudsen, 2004
BCCA 613, at para. 29,

“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.”

[168]     The law
has long recognized that unknown contingencies and uncertain factors make it
impossible to calculate lost opportunities and a loss of earning capacity with
any precision: Erickson v. Sibble, 2012 BCSC 1880, at para. 271. 
It is because the occurrence of hypothetical and future events is unknown that
allowances must be made for relevant and realistic positive and negative
contingencies.  Quantification is an assessment process meant to reflect the
applicable positive and negative contingencies.  It is not a mathematical
calculation and there is no particular formula or methodology to be employed: Rosvold
v. Dunlop, 2001 BCCA 1 [Rosvold] at para. 8; Jurczak v.
Mauro, 2013 BCCA 507 at para. 36.

[169]     The cases
make clear that in advancing a future loss claim, the plaintiff must prove a
real or substantial possibility of future loss, as opposed to a theoretical
loss.  In other words, the award cannot be based on speculation: Rosvold;
 Perren v. Lalari, 2010 BCCA 140, 3 B.C.L.R. (5th) 303.  As was recently
observed by the Court of Appeal in Kim v. Morier, 2014 BCCA 63 at
para. 7, the onus on the plaintiff is not heavy but must nonetheless be
met in order to justify a pecuniary award.   Where a real or substantial possibility
of future loss has been established, compensation is awarded based on an
estimation of the chance that event will occur: Steward v. Berezan,
2007 BCCA 150, 64 B.C.L.R. (4th) 152

[170]     Evidence
of ongoing pain may be sufficient to ground a substantial possibility that a
plaintiff’s pain will adversely affect the future ability to work, even where,
at the time of trial, the plaintiff has not missed work due to the injury: Clark
v. Kouba, 2014 BCCA 50 [Clark] at 33.

●      Past
Loss

[171]     Ms. Munoz
is not pursuing a past loss claim.

●      Future
Loss

[172]     My task is
to compare the likely future of Ms. Munoz’s working life if the accidents
had not happened, to her likely future working life afterwards: Gregory v.
I.C.B.C., 2011 BCCA 144 [Gregory] at para. 32.

[173]     The
defendants submit that Ms. Munoz has failed to show, on a substantial
possibility basis, a future event leading to an income loss and that,
consequently, she is not entitled to an award under this head.  One of the
defendants’ arguments in support of their contention, is that there is no
evidence that Ms. Munoz’s condition will deteriorate to the point that she
will no longer be able to work as a restaurant manager at McDonald’s.  Of
course, that is not the test for recovery.

[174]     Through
sheer grit and determination and to her credit, Ms. Munoz, who is the main
breadwinner for her family, has continued to work after all of the accidents.  She
is not to be penalized for her stoicism: Clark at para. 34.  Of
her own accord, she has implemented accommodations in her job duties and tried
her best to “unofficially” restrict herself to light duties by enlisting the
help of co-workers to relieve her of the more physically demanding duties.  Ms. Ismail
made the point that other McDonald’s managers do not do that unless they are
pregnant.

[175]     Despite
taking care to minimize her aggravating work activities, such as prolonged
sitting and standing and repetitive movements, they simply cannot be avoided
altogether.  Ms. Munoz continues to find her responsibilities much more
difficult to discharge and more time consuming to complete in consequence of
the accidents, and feels she is constantly behind in her work.  She laments
that she can no longer go the “extra mile” to accomplish what she feels she
ought to in order to shine in her managerial role.

[176]     While her
injuries have gradually improved, they have not resolved, and may never resolve
completely.  Ms. Munoz continues to suffer flares of her symptoms.  During
those set-backs, her pain becomes more intense and functionally limiting. 
Ms. Munoz is relatively young and still in the prime working years of her
career.

[177]     The fact
that Ms. Munoz has not missed work due to her injuries is a relevant
factor for consideration; however, it is not a determinative one: Rosvold
at para. 10; Clark at para. 34.

[178]     The
evidence supports the finding of a high chance of a substantial possibility
that Ms. Munoz will be coping with episodic flares of her symptoms
throughout her future tenure with McDonald’s, and in any similar position she
may obtain in the hospitality/restaurant industry.  It is a matter of common experience
that, over time, ongoing pain will have a detrimental effect on a person’s
ability to work, even in circumstances where the employer is prepared to make
accommodations: Morlan v. Barrett, 2012 BCCA 66 at para. 41.  The logical
extension of that common experience is that the detrimental effect may be
accelerated or more profound where an employer ceases making such
accommodations or is not prepared to make them at all.

[179]     I conclude
that the accidents are responsible for an impairment of Ms. Munoz’s future
earning capacity.  There is a moderate chance of a real and substantial
possibility that her diminished capacity will manifest into the future
indefinitely.  That said, I find the chance of a substantial possibility
of Ms. Munoz requiring disc desiccation surgery to be on the low side.  I
have also taken into account the fact that if she were to have such surgery and
the outcome was successful, then her symptoms and impairment may be
significantly reduced in the result.  I have also taken into consideration
Dr. Werry’s evidence that a disc bulge may resolve on its own.

[180]     I am
satisfied that Ms. Munoz has proven a substantial possibility that her
diminished capacity caused by the accidents will generate a pecuniary loss in
the future.  As Ms. Munoz has established a real and substantial
possibility of a future event leading to an actual income loss, there is a
proper foundation to take the next step and quantify her loss.

[181]     Ms. Munoz
relies on the report of Darren Benning of Peta Consultants Ltd., consulting
economists.  For the purposes of estimating Ms. Munoz’s future loss, Mr. Benning
was told to assume:  (i) she would have continued in her job or a similar
position with McDonald’s earning $50,000 per year until her retirement not
later than age 65; and (ii) as a result of the accidents, she will suffer
an income loss corresponding to 50% of her future without-accidents income.

[182]     Mr. Benning’s
calculations, which allow for several negative labour market contingencies, as
well as for premature death, yielded a projected loss of $403,575.

[183]     Rounding
down ever slightly, Ms. Munoz asks for an award of $400,000.  Her position
is as unreasonable as the defendants’ stance that she is entitled to nothing
under this head of damages.

[184]     The primary
stumbling block for Ms. Munoz is with Mr. Benning’s core assumption
is that she will suffer an income loss equivalent to 50% of her future
absent-accidents income.  That is simply not a tenable finding on the evidence.

[185]     Given the
nature of the competing contingencies at play, it is difficult to postulate an
annual loss for Ms. Munoz’s many remaining years in the workforce.  To my
mind, it is not appropriate to
engage the “earnings approach” to assess her damages.  It is instead preferable
to quantify her loss by taking into account the factors that inform the capital
asset approach laid out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.) [Brown].

[186]     That
assessment involves considering factors such as whether Ms. Munoz: (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.  The evidence
establishes that at least three, and probably all four, of these factors have
application to Ms. Munoz.

[187]     Bearing in
mind the applicable legal principles, including the Brown criteria, in
light of the evidence, I conclude that in all the circumstances the sum of
$60,000 is the present value of a fair and reasonable measure of Ms. Munoz’s
loss of future earning capacity.

●      Cost
of Future Care/Housekeeping Services/Loss of Housekeeping Capacity

[188]     The
purpose of damages for the cost of future care is to compensate for a financial
loss reasonably incurred to sustain or promote the mental and/or physical
health of an injured plaintiff: Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9; Gignac v. ICBC, 2012 BCCA 351 [Gignac] at para. 30. 
The services and items must be justified as reasonable in the sense of being
medically required or justified, and in the sense that the plaintiff will be
likely to incur them based on the evidence: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.); Izony v.
Weidlich, 2006 BCSC 1315; Kuskis v. Tin, 2008 BCSC 862.

[189]     Recommendations
made by a medical doctor or made by various other health care professionals are
relevant in determining whether an item or service is medically justified: Gregory
at para. 38. An evidentiary link between the medical assessments and the
recommended treatment is essential: Gregory at para. 39; Gignac
at paras. 31-32. General contingencies and those specific to the plaintiff are
to be taken into account where appropriate: Gignac at para. 52.

[190]     Ms. Munoz
claims an award in the range of $20,000 to $25,000 for her cost of future care,
plus an additional $25,000 in damages for homemaking services.

[191]     Collectively,
the evidence of Mr. Shew and Drs. Werry and Tarazi support an award
for a variety of future care items such as chiropractic care, massage therapy,
supportive and orthopaedic footwear and over-the-counter medications (she finds
the side-effects of the prescription medications problematic) as being
reasonably necessary for the preservation of Ms. Munoz’s health.

[192]     The
difficulty Ms. Munoz faces is that, apart from the recommendations made by
Mr. Shew, there is no direct evidence or a cogent evidentiary basis from
which to infer the cost of the future care items she seeks.

[193]     The
evidence as a whole amply reveals that Ms. Munoz is committed to taking
the reasonable necessary steps to improve her condition and supports the
inference that she would wear the supportive and orthopaedic shoes described in
Mr. Shew’s report.  In the circumstances of this case, that would not be a
one-time outlay.  I am satisfied that Mr. Shew’s footwear recommendations
would be beneficial to Ms. Munoz and medically justified and likely to be
incurred by her.  I would also allow a nominal amount for the cost of her
future over-the-counter anti-inflammatory and pain medications.  In total,
I award the sum of $1,200 as the present value of those initial and
replacement footwear costs and medications.

[194]     As
mentioned, Ms. Munoz also seeks $25,000 in damages for homemaking
services.  The main hurdle with respect to those damages is the absence of any
cogent evidence to the effect that she would actually employ those services,
were they provided or their cost.  I conclude, therefore, that Ms. Munoz
is not entitled to damages for this loss as a component of her future care
award.

[195]     However,
that does not end the analysis.  In my view, the fact that Ms. Munoz has
not established entitlement to those damages under the rubric of the costs of
her future care does not preclude an award conceptualized as the loss of her
future housekeeping capacity.  The evidence is overwhelming that since the First
Accident, she has suffered an impairment of her housekeeping capacity and that
it will likely continue into the future.

[196]     Because an
award for the loss of housekeeping capacity reflects the loss of personal
capacity, which is an asset, the issue of whether the plaintiff had used
replacement services or is likely to hire such assistance in the future does
not inform the analysis.  That distinguishes those damages from future cost of
care awards as was recently affirmed by Kirkpatrick J.A. in O’Connell v.
Yung, 2012 BCCA 57 at para. 67:

…Damages for the cost of
future care serve a different purpose from awards for loss of housekeeping
capacity.  Unlike loss of housekeeping capacity awards, damages for the cost of
future care are directly related to the expenses that may reasonably be
expected to be required (Krangle at para. 22).  Determining the
amount of a reasonable cost of future care award entails a unique set of
considerations, as Professor Cooper-Stephenson explains at 416:

It is clear that both the need
and the opportunity for the expenditure of moneys is relevant to the
assessment.  Therefore, if the plaintiff’s medical condition may require care
of a less expensive nature—such as institutional care—then the award for future
cost of care should reflect that possibility.  Equally, it would seem, if the evidence
is not conclusive that more expensive care will be available, or that the
plaintiff will find such care to be physically and emotionally satisfactory,
then the award should reflect those possibilities; the reduced award will then
reflect the best estimate of what will be reasonably necessary to provide
optimum care.  In this sense, the court is bound to look to the actual spending
potential of the plaintiff.

[197]     Ms. Munoz
has established entitlement to standalone compensation for her loss of
housekeeping capacity.  Keeping in mind that an award of that kind is meant to
compensate her for her diminished loss of capacity – the loss of her asset –
and is not a precise mathematical calculation, and taking into account the
relevant contingencies supported by the evidence as best I am able,
I conclude that the sum of $10,000 is a fair award to reflect the whole of
her loss of housekeeping capacity before trial and afterwards.  It should go
without saying that I have not included any part of this award in the assessment
of Ms. Munoz’s non-pecuniary damages.

[198]     In sum, Ms. Munoz
is entitled to an award of $1,200 for the cost of her future care and $10,000
to compensate her for the loss of her housekeeping capacity.

COSTS

[199]    
Ms. Munoz is entitled to her costs at Scale B unless there are
any pertinent circumstances that should be brought to the Court’s attention. 
If a hearing is required, counsel are to reserve a date through Supreme Court
Scheduling.

__________ “Ballance
J.”___________
Ballance J.