IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140410

Docket: 11 0576

Registry:
Victoria

Between:

Shantel Dawn
Kristiansen

Plaintiff

And

Jenny Grewal,
Michael Amandeep Grewal
and Manjit Grewal

Defendants

Before:
The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

I.     INTRODUCTION

[1]            
The plaintiff seeks damages for personal injury as a result of a motor
vehicle accident. Liability is admitted.

[2]            
On December 4, 2009, the plaintiff was driving her 1991 Pontiac Sunbird
along Jacklin Road in Victoria, B.C. She had just passed the intersection with
Sooke Road and was proceeding uphill. As she did, the defendant Jenny Grewal,
who was driving a 2008 Jeep Wrangler, exited a parking lot to the plaintiff’s
right and struck the right rear section of the plaintiff’s vehicle (the “Accident”).

[3]            
The plaintiff did not strike her head or lose consciousness. When the
parties exchanged information at the scene, Ms. Grewal noted that the plaintiff
was quite upset and crying.

[4]            
The plaintiff alleges that she sustained the following injuries as a
result of the Accident: pain and suffering; nausea; headaches; neck pain and
restriction in rotation; tingling where her spine meets her skull; shoulder
pain and shoulder blade pain on her left side; lower back pain; posttraumatic
stress disorder (“PTSD”); cognitive disorder not otherwise specified; and
traumatic brain injury.

II.    PARTIES’ POSITIONS

Position of the Plaintiff

[5]            
The plaintiff claims that she continues to
suffer chronic pain as a direct result of the Accident. She further claims that
she suffers from psychological complaints and PTSD, which makes her
unemployable.

[6]            
The plaintiff claims damages under the following heads:

a)  general
or non-pecuniary damages, as assessed by the court;

b)  $72,086.04
for past wage loss from September 5, 2011;

c)  loss of
future earning capacity, as assessed by the court;

d)  special
damages:

a.  $931.11 for prescriptions;

b.  $16,331.72 for physiotherapy;

c.  $1,595.00 for psychotherapy;
and

d.  $895.94
for miscellaneous expenses;

e)  cost of
future care, as assessed by the court;

f)   interest
pursuant to the Court Order Interest Act; and

g)  costs.

Position of the Defendants

[7]            
The defendants do not dispute that the plaintiff suffered mild to moderate
soft tissue injuries in the Accident.

[8]            
However, the defendants submit that the Accident was not the cause of
the plaintiff’s psychological complaints and alleged cognitive impairments.
They point to the fact that the injuries the plaintiff sustained did not
prevent her from continuing to work on a full-time basis for 21 months after
the Accident, after which the plaintiff’s psychological complaints began. They
say that since the plaintiff’s psychological complaints were first observed 21
months after the Accident, they are too remote to be recoverable in law.

[9]            
The defendants further submit that the duration and severity of the plaintiff’s
physical complaints should be evaluated with particular scrutiny in light of
her ability to continue to work on a full-time basis for 21 months after the Accident,
and the subsequent overlay of psychological complaints that began on September
5, 2011, which they say were not related to the Accident.

[10]        
The defendants further submit that in light of
the plaintiff’s pre and post-Accident medical history, the court should award non-pecuniary
damages for her soft tissue injuries in the range of $50,000 to $60,000.

III.    CREDIBILITY

[11]        
Before I begin my review of some of the evidence and make my findings of
fact, permit me to say that I found the plaintiff to be a very credible witness
and I was impressed with her candour when she gave her testimony.

[12]        
As I noted in Pacheco v. Antunovich, 2014 BCSC 176 at para. 10,
the “credibility of the plaintiff is very important … where the foundation for
most of the plaintiff’s complaints is subjective.” See also: Bradshaw v.
Stenner, 2010 BCSC 1398 at para. 186.

[13]        
I also found Katlin Griffiths, the plaintiff’s long-time friend; Brandi
Vaincourt, the plaintiff’s former manager; and Colin Kristiansen, the
plaintiff’s estranged husband, to be very credible witnesses.

[14]        
Among the experts, I found that Dr. Koch’s report and his testimony in
court seemed to lack objectivity. In fact, he seemed to be more of an advocate
for the defendants and ICBC. I have difficulty accepting any of his evidence.

IV.   EVIDENCE

[15]        
The plaintiff was born on March 11, 1985. She began working at Cash
Store Financial on September 21, 2008. She married Colin Kristiansen on
September 9, 2009.

[16]        
The Accident occurred on December 4, 2009. The then 24-year-old plaintiff
was proceeding uphill in a residential neighbourhood in Colwood, a municipality
in the western part of greater Victoria. The plaintiff was in her pyjamas and
had just dropped her husband off at his place of work. She was on her way home.

[17]        
At around 7:30 a.m., the defendant driver, Jenny Grewal, drove out
of her condominium’s driveway and apparently did not see the plaintiff. Ms.
Grewal drove the Jeep into the side of the Pontiac, causing the back end of the
plaintiff’s vehicle to end up in the oncoming lane. The nose of the Jeep came
to rest across the yellow centre line. The plaintiff testified that she felt
the impact was “hard”.

[18]        
The damage to the plaintiff’s vehicle was to the passenger door and rear
wheel well (it was a 2-door automobile). The tire at that location would rub
against the body of the vehicle whenever the car hit a bump in the road. The
Pontiac was subsequently written off. Damage to the Jeep’s passenger side front
end totalled $800.67.

[19]        
After the Accident, the plaintiff drove to the side of the road. When
the defendant driver tapped on her window, she noticed the plaintiff was upset
and crying. The plaintiff called her mother from the Accident scene and her
mother also testified that the plaintiff was crying. The plaintiff’s mother
said that she advised the plaintiff not to bother with the police because the
car was still driveable. The plaintiff’s mother further testified that she saw the
plaintiff that evening and noted that the plaintiff was shaky, crying, couldn’t
lift her arms, and was distraught over the car.

[20]        
The plaintiff had not been injured in a motor vehicle accident prior to
this one.

[21]        
At the scene, the drivers exchanged information and the plaintiff called
her mother and husband. The plaintiff then went home and reported the Accident
to her insurance company. By that time, she was experiencing low back pain, an
area which had never before been troublesome.

[22]        
According to the plaintiff, the effects of the Accident were: headaches;
neck, shoulder and arm problems; increased memory difficulties; and low back
complaints.

[23]        
On December 28, 2009, about three weeks after the Accident, the
plaintiff’s right shoulder was hurting badly. According to the plaintiff, the
pain was so severe that she was hyperventilating and was taken to a clinic. The
medical personnel at the clinic sent her by ambulance to Victoria General
Hospital. The plaintiff testified that she emphasized to the ambulance
attendant that she had a neck problem, so that he would not think she had
meningitis.

Plaintiff’s Pre-Accident Physical Health

[24]        
The plaintiff’s pre-Accident health was relatively good. However, at age
20, four years before the Accident, she had a very serious and potentially life-threatening
left leg operation. It took a year for her to learn to walk again. As a result
of this operation, she had a slight drop foot in her left leg. According to
her, there was a minimal effect on her working.

[25]        
She testified that her mental health was good before the Accident;
however, her memory eroded after the surgery. She had to use a day timer book
to keep track of appointments.

Injuries Sustained in the Accident

a.  Headaches

[26]        
The plaintiff claims that she has had headaches, both ordinary and
migraine, which she was not prone to before the Accident. She said that she might
have had a migraine headache two times a year before the Accident. Since then, she
began having daily migraine-like headaches where she would have to be in a dark
place as she was sensitive to light, sound and smell. She testified at trial
that these headaches are now down to twice a month.

[27]        
She testified that she also had ordinary headaches. They were initially daily,
then less and less. She testified that when she became a Branch Manager in
December 2010, a year after the Accident, her headaches were three times a week.
They now occur about three times a month.

b.  Neck and Shoulders

[28]        
The plaintiff testified that she had no previous trouble with her neck
and shoulders. Immediately after the Accident, she said that she had painful
restriction and tingling where her neck meets her skull. Consequently, she
started to nurse her injuries and avoided turning her head.

[29]        
She testified that she has had pain every single day since the Accident.
Some days are better than others. Today she thinks she is as good as she is going
to get. On extremely bad days, carrying a coffee mug is hard. Pulling a shirt over
her head or holding a purse were also challenges for her. She testified that if
she held a purse on her shoulder it created tension in the area of her
collarbone and neck.

[30]        
The plaintiff also testified that she did not have her hair cut for
about a year after the Accident because tugging on her hair was excruciating to
her neck and shoulders. She testified that she did not feel as good about
herself as a result. She testified that her hair became grey after the
operation when she was 20, but colouring her hair hurts her so she uses a spray
to keep it black.

[31]        
She further testified that she cannot make up her bed. She can put the
pillowcases on but testified that it took her one to two hours to put the cover
on the duvet.

[32]        
She testified that holding her elbows and arms up causes fatigue and
pain when using a mouse or keyboard, unless she uses an ergonomic gel pad.

c.  Arms

[33]        
The plaintiff testified that her arms were healthy before the Accident. Now,
she can only lift them to about the 10:00 o’clock position, as she demonstrated
on the witness stand.

[34]        
The plaintiff testified that she has difficulty holding her phone. For that
reason, she obtained a headset for work and a “Jawbone” headset for her
cellular telephone, on the advice of Dr. Stanwood, her family doctor. The
headset at work was on the advice of her rehabilitation consultant, Barbara
Phillips.

[35]        
The plaintiff testified that she has problems handing objects to people,
as holding items causes fatigue and sometimes the object drops to the floor.

[36]        
The plaintiff testified that her arms can hurt even when she does nothing
all day. Sometimes they hurt because of her aggravating them due to use. In
bed, putting her arm down the side of her pyjama leg helps to reduce discomfort.
She testified that when they lived together, her husband Colin would hold her
arm in a correct position while they watched movies at home.

[37]        
She testified that she cannot open cans unless she uses an electric can
opener. Sometimes she has other people open cans for her. She testified that
the cranking motion aggravates her neck and shoulder area. She also testified
that she uses a special cloth or rubber mat when opening a jar.

[38]        
The plaintiff also testified that she compartmentalizes household items
into small baskets, so as not to aggravate her arms and shoulders when she
needs to retrieve them. She puts much used items at the best height while less
used items are stored higher or lower. She testified that she puts teapots and
food items at the front of a cupboard, so that she does not have to reach very far
in to retrieve an item.

[39]        
She testified that she cannot use an umbrella because it requires her to
keep her arms up. She uses hoods and scarves instead.

d.  Low Back

[40]        
The plaintiff testified that she had no problems in her low back before
the Accident. She had an area of vertebrae near her bra strap that was
sometimes painful, but nothing else.

[41]        
The plaintiff testified that her sciatic area now hurts her. The range
of motion in her lower back is restricted some days. Most days she can touch
the floor, but sometimes she cannot. According to her, coming up from a bent
position is what causes the most pain, a shooting pain in her lower back.

[42]        
She now only has one pair of shoes with shoelaces, her gym shoes, which
she leaves tied all the time and slips into them. She testified most of her
shoes now are slip-ons or zip-ups because they are easier to put on.

e.  Memory

[43]        
The plaintiff testified that before the Accident her memory had been
affected by the left leg operation. She had to use a day timer to keep track of
appointments, something she had not had to do before the surgery.

[44]        
However, she claims that after the Accident, her memory loss has become
more severe. She has had to use the day timer not only to keep track of
appointments, but also to write down things that she had done so that she could
keep track of what she was doing. She testified that even with the use of a day
timer, she still forgets appointments. She even forgets things that occur
weekly or daily, such as picking up her niece from school. She sometimes forgets
to look at her day timer and misses appointments. Other times she shows up early
at appointments because she has misstated when she is supposed to be at a
particular place. She also forgot about her best friend’s surgery.

Treatment of Injuries

[45]        
Six days after the Accident, the plaintiff went to Parkway Physiotherapy
and Performance Centre on the recommendation of Dr. Stanwood. She was at
Parkway until no provider would pay for her treatment. She then went to Langford
Physiotherapy and Medical Acupuncture to see physiotherapist Rod Mitchell,
whose business was across the hallway from her employer. Mr. Mitchell would
take a direction to pay.

[46]        
The plaintiff testified that over the years she has gone through quite a
number of modalities in order to improve, including: physiotherapy;
intramuscular stimulation (“IMS”); treatments at the Myo Clinic with needles;
saline injections; massage therapy; acupuncture; a personal trainer; and exercising
as directed by a personal trainer at a public gym.

[47]        
Massage helped her for about 48 hours, but was excruciating at the time
that she underwent it. She also could no longer afford it as it cost $98 a
session.

[48]        
The plaintiff had gastric bypass surgery on November 7, 2011. This
resulted in her losing approximately 90 pounds, which made the stress on her
joints less. However, according to her, weight loss did not make an appreciable
difference in her condition with respect to her physical injuries.

[49]        
The plaintiff testified that physiotherapy and manual manipulation
helped ease her pain, but did not relieve it. It helped her move more easily and
she found she was less “jammed up” for about 24 to 48 hours.

[50]        
She testified that IMS reduced pain. It is very painful for half an hour
afterwards, but the effects last 48 hours. She also had acupuncture, which she
said helped a lot with headaches, but the relief did not last even 24 hours.

Accommodation of Injuries

[51]        
The plaintiff testified that she has had to do numerous things,
including reducing activity, to avoid causing migraines. For her neck, shoulder,
and arm pain, she developed coping mechanisms, such as using a metal riser
around the house. She also started using lightweight baskets as compartments to
store things because pressure from using her shoulder gives her headaches. She
testified that she finds washing her hair and raising her arms irritates her,
so she does it less frequently than she did before the Accident (every four
days as opposed to every second day). She does not blow dry her hair any longer;
she washes it in the evening so it dries overnight.

[52]        
According to the plaintiff, another mechanism that she employs is avoiding
certain tasks around the house and asking other people do things for her, such
as laundry and scrubbing pots. She also gets help in the shower, asks strangers
at the store to help her put items in her basket, and requests carryout service
to her car.

[53]        
She testified that she has to consider her daily needs when she goes out,
but it is hard to anticipate what those will be. She has a rolling cart for her
purse and pillows. She pushes her seat back in the car and uses a pillow behind
her back. If her arms are bothering her, she puts pillows on her sides so that
her forearms rest on a surface, an example being when she uses a mouse or a
keyboard. Fidgeting and rocking helps her feel comfortable. She will pin her
arms against her body or sit on her left hand, as she did on the stand, so as
not to aggravate her arm.

[54]        
As far as feeding her family is concerned, she testified that on good
days she makes huge portions and freezes them, so that on bad days there is
food available to be baked in the oven.

[55]        
She testified that she uses a small mirror because she cannot stand when
she uses the mirror in the bathroom. She uses a riser in her living room,
dining room, and in her bed. She testified that she cannot use her upper body
to lift herself from the bathtub.

Change in Personality

[56]        
Prior to the Accident, the plaintiff was very outgoing. She would go out
on the town and to theatres and movies. Her obesity never bothered her and she
was self-confident. When Colin proposed, he asked if they should wait to be
married until after her gastric bypass surgery and she said “no”.

[57]        
Evidence of the drastic change in her post-Accident personality was
given by witnesses Brandi Vaincourt, Katlin Griffiths, and Shantel’s mother,
Joanne McCarthy.

Continued Employment Post-Accident

[58]        
The plaintiff testified that when she was a young child she had a
learning disability, which meant that she could only spend about half an hour
on a topic before having to move to something else, otherwise she would not
comprehend. This was not a problem for her when she was at work because her
work is fast paced and she changes tasks often.

[59]        
In December 2010, a long-time ambition to become a Branch Manager was
realized. She became Branch Manager of a standalone “Instaloans” location. She
worked with two other staff. This was a significantly busier branch than the
one in Langford. There was a lot more work and more walk-in customers. Her
employer encouraged its managers to “manage your branch as if it was your own
business”. She described a great many duties. There were some very busy days,
depending on when government agencies would pay out things like CPP or Family
Child Credits. The staff only work up to 40 hours per week, and if someone did not
show up, she was supposed to work those hours.

[60]        
As Branch Manager, she was entitled to earn bonuses. Every month in 2011,
from January to her last full month in August, she earned bonuses. In the meantime,
according to her, her Accident-related injuries were causing her difficulties
at work. She took pain medications. She said her pain was intolerable. She
could not get in to physiotherapy because Langford Physiotherapy had reduced their
hours and she was 35 to 40 minutes away from that location. Parkway had a team
of physiotherapists, but it closed at 7:00 p.m.

[61]        
She also had various personnel problems at the branch. Of the two people
who worked with her, one of them was a transferee from Ontario who would
sometimes not show up and finally resigned on June 30, 2011. After that, she
had two trainees who could not be left alone for two weeks according to company
policy. She had an ergonomic assessment when she became Branch Manager, but
could not afford to pay for many of the suggestions.

[62]        
She testified that the recommended headset helped, but her office was
physically too small to do all of the recommended changes that Barbara Phillips
had suggested. She was unaware that her employer could help pay for some of the
recommendations.

[63]        
While she was a Branch Manager, she made five applications for a Regional
Manager position, none of which were successful. She felt that being a Regional
Manager would accommodate her pain problems better because she would then be
able to work out of one location, have no customer files, and be at a desk in
an office with a laptop. In other words, she thought it would offer a more
sedentary position.

V.    EXPERT EVIDENCE

[64]        
At trial, the plaintiff tendered expert evidence from a physician,
physiatrist, neuropsychologist, psychologist, neurologist, rehabilitation
specialist, vocational consultant, two physiotherapists, two psychiatrists, and
an economist. The defendants tendered rebuttal expert evidence, including
evidence from an orthopaedic surgeon. The following is a very brief summary of
some of the medical evidence. Additional expert evidence will be discussed in
the remainder of the judgment below.

[65]        
Dr. Stanwood gave evidence. He had been the plaintiff’s doctor from when
she was a young infant. He first saw the plaintiff after the Accident on
December 7, 2009. In his first report dated February 20, 2012, he stated:

…During this visit the details
of the accident were reviewed. Shantel had complaints of pain in her neck and
lower back as well as some tingling at the base of her skull. … On examination
she had a reduction in the range of motion most noticeable with rotation and
side flexion. … I suggested that she seek the help of a physiotherapist

[66]        
The plaintiff returned on January 21 and February 12, 2010. She attended
on April 21, 2010 for her annual physical examination:

As part of this visit, her car
accident injuries were reassessed. She was complaining of daily headaches, pain
and stiffness in the neck radiating across the shoulders, at times severe,
often aggravated by bright lights and loud noises. Her lower back was doing
reasonably well at this point and she was continuing to attend a physiotherapist
approximately 2 times per week.

[67]        
Dr. Stanwood provided a second report dated October 4, 2013. In January 2014,
he noted that the plaintiff had restricted range of motion in some fields.

[68]        
The plaintiff was also assessed by a physiatrist. Dr. MacKean first conducted
an assessment on December 9, 2010, one year after the Accident. In her first
report dated March 30, 2012, Dr. MacKean advised that her impression at the
time of her initial assessment was that the plaintiff had sustained a Grade II
whiplash-associated disorder of the cervical spine and upper back, as well as
mechanical low back pain in the lumbar spine and sacroiliac joint regions. Dr.
MacKean referred the plaintiff to physiotherapy and recommended an ergonomic
workplace assessment.

[69]        
More recently, Dr. J. Arthur, an orthopaedic surgeon, had an opportunity
to examine the plaintiff on behalf of the defendants. In his report dated May
24, 2012, Dr. Arthur noted that, in his opinion, the plaintiff sustained soft
tissue injuries involving her neck and back. These injuries were, he says,
reasonably related to the Accident:

…She has somewhat reduced range
of motion of the neck consistent with a neck complaint but certainly no
neurological findings. These complaints, in my opinion, are best described as
soft tissue in nature and are reasonably related to the motor vehicle accident
in question.

[70]        
Dr. MacKean’s second report dated July 18, 2013, relates to an
examination of the plaintiff on the same day. She wrote at page 5:

With regards to the injuries sustained in the motor vehicle
accident she is most likely close to the point of maximal medical improvement
as it has been over three to [sic] half years following the date of the motor
vehicle accident. It is likely she will have ongoing chronic pain involving the
neck and upper back and lower back region with occasional headaches.

I would recommend that [she] have continued access to
physiotherapy … twice a month as she has been doing.

I would strongly recommend that
she continue with her regular gym program and she should have a gym pass so
that she can continue with that.

VI.   FINDINGS OF FACT

[71]        
I find as a fact that although the plaintiff continued to work
immediately after the Accident, she did so with a considerable amount of pain.
In this regard, I accept not only the evidence of the plaintiff, but also that
of her estranged husband and her friend since childhood, Katlin Griffiths. I
find that after the Accident, after work, instead of partying and doing the
things that she enjoyed before, she was confined to her home or bed. I accept
the evidence of her estranged husband when he said that he decided to leave the
plaintiff because he did not want to have to care for her, as he did for his
mother, for the rest of her life.

[72]        
I also find as a fact that as a result of the Accident, the plaintiff
suffered PTSD. I rely on Dr. Reeves’ evidence in this regard. Dr. Reeves has
been the plaintiff’s treating psychologist with respect to Accident-related
PTSD and driving anxiety since June 8, 2012. She confirmed on the stand that
the plaintiff’s Accident-related PTSD has been the sole focus of her treatment.

[73]        
I accept Dr. Reeves’ testimony that there has been considerable
improvement in the plaintiff’s Accident-related PTSD. In her report dated
August 7, 2013, Dr. Reeves states: “On August 6, 2013, Ms. Kristiansen and I
agreed that she no longer needs to see me to work on PTSD. She said that she
will continue to use the strategies and is hopeful her anxiety symptoms will
continue to decrease.”

[74]        
As further evidence of improved psychological functioning, Dr.
O’Breasail, one of the plaintiff’s psychiatrists, confirmed that while the plaintiff
“has suffered from Posttraumatic Stress Disorder and Major Depressive Disorder,
[these] are largely in remission” as of July 9, 2013.

Psychological Crash of September 5, 2011

[75]        
There is much evidence that the constant pain finally got to the plaintiff.
Nevertheless, she was stressed out at work due to long hours and training new
staff.

[76]        
At her attendance at the hospital on September 5, 2011, the plaintiff’s
mother was with her. She stated that before taking the plaintiff to the hospital,
the plaintiff told her that she was in too much pain and just could not do it
anymore.

[77]        
When they went to the hospital that day, she was admitted and there was
much discussion about stress and anxiety. However, one of the points that Dr.
Ishkanian, the attending psychiatrist, noted under “History of Presenting
Illness” was: “On further questioning she says that things have been much worse
over the last two weeks.” He went on: “She says her sleep has been somewhat
more broken up over the last two weeks, this may be secondary to pain and
migraines.”

[78]        
The next day, September 6, 2011, physiotherapist Brian Woltz from
Langford Physiotherapy, who had treated the plaintiff approximately four times
in August 2011, found that her symptoms were much worse.

[79]        
The plaintiff was asked in cross-examination about her application for
short-term disability benefits submitted to Great-West Life. Under “Claim
Information”, it stated: “If the disability is due to accident, give date
accident occurred: Year: N/A”. In answering that question, the plaintiff said
that she did not attribute the depression and anxiety to the Accident, but that
it was from pain from the Accident. She said it had nothing to do with
stressors at work since there was nothing to be depressed about.

[80]        
The date of that Great-West Life “Claim Information” document is
September 27, 2011. Dr. Stanwood attended on Ms. Kristiansen that same day. In
his report of February 20, 2012, he wrote: “September 27, Shantel presented for
reassessment and continued to complain of fatigue and tiredness. She looked
absolutely exhausted in the office. Her concentration was poor however she
remained non-suicidal.”

[81]        
In the subsequent telephone record with Great-West Life from October 11,
2011, the plaintiff spoke about the fact that she had been in a motor vehicle
accident in 2009. She was asked: “What are some of your stressors?” She
answered: “Work”. When asked “Anything in particular about work”? She replied: “Problem
with staff, high turnover, has to cover any missed shifts if people aren’t
there.”

[82]        
Soon after the plaintiff’s “breakdown” on September 5, 2011, Great-West
Life referred the plaintiff to Dr. J. Wooder, a psychiatrist. Dr. Wooder
evaluated the plaintiff for the first time on November 25, 2011, for the
purpose of an independent medical examination. Dr. Wooder subsequently started
treating the plaintiff on January 27, 2012. Dr. Wooder diagnosed traumatic
brain injury and a concussive disorder.

[83]        
However, in his report dated October 31, 2012, Dr. D. Cameron, the
plaintiff’s neurologist, stated:

24.       Following
my neurological examination of Ms. Shantel Dawn Kristiansen and following my
review of the medical records and clinical documents, it is my opinion that Ms.
Kristiansen suffered soft tissue and musculoskeletal injuries affecting her
neck and lower back sustained at the time of the motor vehicle accident of
December 4, 2009.

29.       … I therefore disagree with Dr.
Wooder regarding the diagnosis of a mild traumatic brain injury or concussion,
and the diagnosis of post traumatic brain injury syndrome or post concussion
syndrome.

[84]        
Dr. A. O’Breasail similarly disagrees with Dr. Wooder. In his report
dated July 29, 2013, he stated: “In the course of the accident she did not
appear to experience a concussion or traumatic brain injury.”

[85]        
Dr. B. Tessler, a neurologist retained by the defendants, has prepared a
report dated February 27, 2013. In it, he expresses his opinion that “[t]here
is no indication that the patient sustained a head injury or a brain injury.”

[86]        
Dr. Stanwood testified that the trip to the emergency room on September
5, 2011, after which the plaintiff did not go back to work until trial (with
the exception of her failed graduated return outlined below), was precipitated
around pain and coping with work and life stressors relating to her injuries.

[87]        
In cross-examination, Dr. Stanwood said that he referenced Dr. Wooder’s
report regarding depression and a bipolar disorder triggered by the Accident. He
said he used that information and made his own conclusions. Dr. Stanwood said the
plaintiff’s depression in September 2011 was triggered by the Accident. The
available information including his own notes caused him to say that.

Additional Stressors on the Plaintiff

[88]        
The plaintiff’s pre-Accident history is an
unfortunate one and includes: physical and emotional abuse by her father as a
young girl; multiple bladder surgeries at a young age; blood clots in her left
leg and abdomen, leading to a fasciotomy and skin graft; her father’s recent
separation from his male partner; the deaths of three of her grandparents; the
institutionalization of her sister; stress from a supervisor at work; and
financial debt.

[89]        
Following the Accident, the plaintiff’s stress
levels were further challenged by: chest pain and shortness of breath,
resulting in her hospitalization on December 28, 2009; gastric bypass surgery
on or about November 7, 2011; permanent separation from her husband, Colin
Kristiansen, in January 2013; a sexual assault in February 2013; and taking
over custody of her niece in April 2013.

[90]        
The plaintiff returned to work on October 7, 2013, but, for a variety of
reasons, this graduated return to work failed on December 24, 2013.

VII.  CAUSATION

Legal Principles

[91]        
A very succinct summary of the law of causation was stated by Madam
Justice Dardi in Smith v. Moshrefzadeh, 2012 BCSC 1458 at para. 59.
Listing the leading cases, she said:

The primary test to be applied in
determining causation is commonly articulated as the “but for” test:
a defendant will be fully liable for the harm suffered by a plaintiff, even if
other causal factors were at play, so long as the plaintiff establishes a
“substantial connection” between the injuries and the defendant’s negligence
beyond the de minimus range: Farrant v. Latkin 2011 BCCA 336
(B.C.C.A), at paras 9 and 11; Athey v. Leonati, [1996] 3 S.C.R. 458; Blackwater
v. Plint, 2005 SCC 58; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements
v. Clements, 2012 SCC 32.

Analysis

[92]        
Applying the law to the facts of this case, I have no difficulty finding
that the pain that the plaintiff experienced was a direct result of the Accident.
I also find that the PTSD suffered by the plaintiff was also caused by the Accident.

[93]        
However, I agree with the defendants’ submission that
the evidence presented at trial suggests the Accident was not the cause of the plaintiff’s
psychological complaints or cognitive deficits, which presented for the first
time on September 5, 2011.

[94]        
It is not disputed that the plaintiff continued
to work on a full-time basis from December 4, 2009 to September 5, 2011, a
period of 21 months. During that period, on December 19, 2010, the plaintiff
was promoted to Branch Manager.

[95]        
The testimony of Brandi Vaincourt, the
plaintiff’s former manager, confirmed that Cash Store Financial is not an
organization that promotes staff who are not performing. According to the plaintiff’s
testimony at trial, the promotion gave rise to additional stressors, including
greater responsibility, staffing issues, and longer hours. On direct
examination, the plaintiff advised that the new location was “exceptionally
busy” and that she worked “long hours”. On cross-examination, she confirmed she
had been working 13-hour days “for about all of August and July [2011] mostly”.

[96]        
The plaintiff continued to work as Branch Manager on a full-time basis
until September 5, 2011. It was at that time that she was admitted to the
Emergency Department at Royal Jubilee Hospital.

[97]        
Although the plaintiff had been attending her family doctor and a
physiotherapist regularly during this period, there is no reference in the
records to any psychological symptoms or cognitive deficits.

[98]        
In particular, Dr. Stanwood acknowledged on cross-examination that his
notes contain no notations with respect to psychological complaints between
December 4, 2009 and September 5, 2011.

[99]        
Apart from that, it appears the plaintiff’s primary complaints when
admitted to the hospital on September 5, 2011, were of workplace and other
stress.

[100]     The plaintiff
was seen at Royal Jubilee Hospital by Dr. R. Ishkanian, a psychiatrist. As
summarized in his consultation report dated September 5, 2011, he noted that the
plaintiff was vague about her reasons for being in the hospital, but stated
that she “has multiple medical problems and is very stressed out at work.”

[101]     Dr.
Ishkanian’s impression was that the plaintiff had experienced a “two week
history of increasing feelings of sadness and anxiety, she is overwhelmed by
multiple areas of her life, including work and financial concerns. However, she
has remained quite functional and is working full-time.”

[102]     The plaintiff
did not return to work after September 5, 2011. Rather, she applied for
disability benefits through Great-West Life.

[103]     On
September 15, 2011, Dr. Stanwood completed a Great-West Life form called an
Attending Physician’s Initial Statement. On the form, Dr. Stanwood confirmed
the primary diagnosis of “Depression – Adjustment Disorder”, and stated that,
in his opinion, the plaintiff’s condition first prevented her from working on
September 5, 2011, again, 21 months after the Accident.

[104]    
On September 27, 2011, a Great-West Life Notice of Claim form was
completed by Ms. Kristiansen. It stated:

1.   What is the
nature of your condition? Depression & Anxiety

2.   If disability is due to an accident,
give date accident occurred:
Year NA Month __ Day __

[105]     As noted
above, the plaintiff was subsequently referred by Great-West Life to Dr.
Wooder, who assessed the plaintiff for the first time approximately two years
after the Accident. Dr. Wooder then began treating the plaintiff on January 27,
2012.

[106]    
At the request of plaintiff’s counsel, Dr. Wooder prepared a report
dated May 2, 2012, in which he made a number of diagnoses, including:

·       
Cognitive Disorder Not Otherwise Specified/post-concussional
disorder;

·       
Post Traumatic Stress Disorder;

·       
Obsessive Compulsive Disorder;

·       
Major Depressive Disorder possibly most likely part of Bipolar
Mood Disorder;

·       
Panic Attacks; and

·       
Possibly Organic Personality Change due to a Medical Condition
(traumatic brain injury)

[107]    
It appears that the plaintiff’s bipolar disorder was the reason she
stopped working after September 5, 2011. On cross-examination, Dr. Wooder
revealed the following:

A:         Okay. So what – in my letter to Great West
Life, the reason for her going off work in September was it sounded to me,
based on the history that I obtained from her, that she had had a brief manic
or hypomanic episode followed by a severe depressive episode, and that why she
went off work.

And contrary to – and I have
made – and in fact, in my report I stated that I do not believe that the motor
vehicle accident most likely had anything to do with her developing a bipolar
illness

I’ve seen her for a length of
time and she’s given me at least three distinct episodes that would clearly
satisfy the diagnosis of a hypomanic or a manic episode. Apparently there’s a
family history of it. I’m fairly confident of that diagnosis and that is why I
believe she went off work.

Q:        Because of the bipolar?

A:         That is my belief. That is my understanding. I’m
not saying there were no other factors going on with her. I’m not saying she
did not have difficulties in that period of time. My understanding is that
she did, but that is my understanding of why she went off work at that
particular time and it had nothing to do with the accident.

[Emphasis added.]

[108]    
It also appears that pain was not the reason the
plaintiff stopped working on September 5, 2011. On re-direct examination, Dr.
Wooder stated the following:

A:         I’m certainly not saying she
did not have pain during the years following the accident … And it’s not my
area of expertise

I’m referring –
I’m looking at my notes, my handwritten notes that I took on November 25^th,
2011, and she did not say that pain was the issue for her going off work. I
know this is not what you might want to hear, not maybe what anybody wants to
hear, but I have to give you an accurate representation.

[Emphasis
added.]

[109]     I agree with the defendants’ submission that it appears there were
other, more likely reasons for the “breakdown” the plaintiff experienced on
September 5, 2011, such as increased responsibility, work-related stresses, and
long hours that came with the Branch Manager position. Further, there is a complete
lack of a temporal connection between the Accident and the onset of the
plaintiff’s psychological symptoms.

[110]     Accordingly, I find that the plaintiff’s psychological complaints
were not caused by the Accident on December 4, 2009.

VIII. REMOTENESS

Legal Principles

[111]    
Remoteness will bar a plaintiff’s recovery even
when factual causation is made out under the “but for” test. In Mustapha v.
Culligan of Canada Ltd., 2008 SCC 27 at para. 3, McLachlin C.J.C,
writing for the Court, set out the requirements for a successful action in
negligence:

[3]        A
successful action in negligence requires that the plaintiff demonstrate (1)
that the defendant owed him a duty of care; (2) that the defendant’s behaviour
breached the standard of care; (3) that the plaintiff sustained damage; and (4)
that the damage was caused, in fact and in law, by the defendant’s breach. I
shall examine each of these elements of negligence in turn.  As I will explain,
Mr. Mustapha’s claim fails because he has failed to establish that his damage
was caused in law by the defendant’s negligence. In other words, his damage is
too remote to allow recovery.

[112]     In Mustapha, the plaintiff suffered serious psychological
injury as a result of seeing dead insects in bottles of water supplied by the
defendant. The Court disallowed his claim in negligence because, although
caused in fact by the negligence of the defendant, the injury was not caused in
law by the defendant; it was too remote to be recoverable.

[113]    
Remoteness was also discussed in Milliken v.
Rowe, 2012 BCCA 490. The Court of
Appeal discussed reasonable foreseeability and said:

[24]      At para. 12 of Mustapha,
Chief Justice McLachlin restated that the basic principle in the remoteness
inquiry is that “it is the foresight of the reasonable man which alone can
determine responsibility” (referring to The Wagon Mound (No. 1), Overseas
Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388
(P.C.) at 424). In para. 13, she succinctly clarified the scope of remoteness,
stating:

…Any harm which
has actually occurred is “possible”; it is therefore clear that possibility
alone does not provide a meaningful standard for the application of reasonable
foreseeability. The degree of probability that would satisfy the reasonable
foreseeability requirement was described in The Wagon Mound (No. 2) as a
“real risk”, i.e. “one which would occur to the mind of a reasonable man in the
position of the defendan[t] … and which he would not brush aside as far-fetched”
(Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C.
617 (P.C.), at p. 643).

[25] I read this as stating that if
something is possible from a practical, factual perspective, it is foreseeable,
but it is not reasonably foreseeable at law. To be recoverable, damages must be
not only foreseeable theoretically, but also must not be too remote, that is,
they must be reasonably foreseeable (Rainbow Industrial Caterers Ltd. v.
Canadian National Railway Co., [1991] 3 S.C.R. 3, 84 D.L.R. (4th) 291).

[26]      In the determination of reasonable
foreseeability and the remoteness inquiry, the Chief Justice in Mustapha
reiterated that the central question is whether “the harm [is] too unrelated
to the wrongful conduct to hold the defendant fairly liable” (quoting A.
Linden and B. Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont:
LexisNexis Butterworths, 2006). She continued in para. 16:

…the law of tort
imposes an obligation to compensate for any harm done on the basis of reasonable
foresight, not as insurance. The law of negligence seeks to impose a result
that is fair to both plaintiffs and defendants, and that is socially useful. In
this quest, it draws the line for compensability of damage, not at perfection,
but at reasonable foreseeability. [Italic emphasis in original.]

[27]      It
also is clear from the judgment that reasonable foreseeability is determined at
the time of the tort (at para. 19).

[Underline
emphasis added.]

[114]    
The plaintiff must show that her injuries were a
reasonably foreseeable consequence of the defendants’ negligent actions. In Smith
v. Both, 2013 BCSC 1995, the court put it this way:

[96]      The
plaintiff must also satisfy the Court on a balance of probabilities that her
injuries were a reasonably foreseeable consequence of the defendant’s negligent
actions. To demonstrate that the injuries she suffered are not too remote to be
viewed as legally caused by the defendant’s negligence, Ms. Smith must
show that it was foreseeable that a person of ordinary fortitude would suffer
the injuries she did: Mustapha v. Culligan of Canada Ltd., 2008
SCC 27 at paras. 12, 18.

Analysis

[115]     The plaintiff
has to show, on a balance of probabilities, that her psychological difficulties
were a reasonably foreseeable consequence of the defendants’ negligent actions.

[116]     In my view,
the plaintiff’s psychological injuries were simply not reasonably foreseeable. That
is, it was not reasonably foreseeable by the defendants, at the time of the
tort, that the plaintiff would suffer the mental injuries she now attributes to
the Accident.

[117]     I agree
with the defendants’ submission that damages for the plaintiff’s
psychological complaints or cognitive deficits which presented for the first
time on September 5, 2011, are too remote in law to be recoverable in
any event.

IX.   DAMAGES

Non-Pecuniary Damages

[118]    
In Stapley v. Hejslet, 2006 BCCA 34 at
para. 46, Kirkpatrick J.A., writing for the majority, outlined the factors
to be considered when assessing non-pecuniary damages:

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

(a)        age
of the plaintiff;

(b)        nature
of the injury;

(c)        severity
and duration of pain;

(d)        disability;

(e)        emotional
suffering; and

(f)         loss
or impairment of life;

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

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

(h)        impairment
of physical and mental abilities;

(i)         loss
of lifestyle; and

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

[119]    
Counsel for the defendants submits courts have
long confirmed that caution should be applied when complaints of pain persist
for long periods of time extending beyond the normal or usual recovery. However,
in Lehtonen v. Johnston, 2009 BCSC 1364, it was also noted that the same
caution should be applied when a plaintiff develops new, different, unusual,
and more serious subjective complaints, long after the event said to be the
cause of those complaints:

[94]      As Chief Justice McEachern stated
in Price v. Kostryba, [1982] B.C.J. No. 1518:

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

[95]      I might add that the same caution
must be exercised when a plaintiff’s recovery not only deviates significantly
from the normal course of recovery, but where a plaintiff develops new,
different, unusual and more serious subjective complaints long after the event
said to be the cause of those complaints.

[96]      In
saying this, I have not concluded that Ms. Lehtonen has fabricated these
symptoms. I accept that she subjectively perceives these things to be true. I
do not consider her perception of these symptoms to be reliable, however. I
consider it more probable than not that they are subjective physical
manifestations of a complex interplay of emotional, physical and psychological
factors unrelated to the motor vehicle accident.

[120]     In support of her claim for non-pecuniary damages, the plaintiff
referred me to the following authorities: Bains v. Brar, 2013 BCSC 1828;
Ahadi v. Valdez, 2013 BCSC 714; Han v. Chahal, 2013 BCSC 1575; Tsalamandris
v. MacDonald, 2011 BCSC 1138; Shapiro v. Dailey, 2010 BCSC 770; Marois
v. Pelech, 2009 BCCA 286; Hutchings v. Dow, 2006 BCSC 629; and Alden
v. Spooner, 2002 BCCA 592.

[121]     The defendants referred me to the following cases in support of a
general damages award of $50,000 to $60,000: Schweighardt v. Palamara,
2003 BCSC 1149; Hardychuk v. Johnstone, 2012 BCSC 1359; and Wahl v.
Sidhu, 2010 BCSC 1466.

[122]     Non-pecuniary or general damages are awarded to compensate the
plaintiff for pain, suffering, loss of enjoyment of life, and loss of
amenities. The compensation awarded should be fair and reasonable to both
parties. Fairness is measured against awards made in comparable cases. Such
cases, though helpful, serve only as a rough guide. Each case depends on its
own unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189.

[123]     After referring to the guidelines in Stapley
v. Hejslet and applying the law to the facts of
this case, I award the plaintiff the sum of $140,000.00 for non-pecuniary
damages.

Past Wage Loss

[124]     Counsel for the plaintiff confirmed in his opening remarks that the plaintiff
is not seeking past wage loss for the period from the date of the Accident to
September 5, 2011.

[125]     I agree with the defendants’ submission that the plaintiff is not
entitled to past wage loss from September 5, 2011 to the date of trial. As
noted by Dr. Wooder during cross-examination, the reason the plaintiff went off
work on September 5, 2011, was due to a bipolar disorder which was not caused
by the Accident. Further, Dr. Wooder noted that pain was not mentioned by the plaintiff
as a reason why she went off work at that time.

Loss of Future Earning Capacity

[126]    
A claim for loss of future earning capacity is not based on a
balance of probabilities, rather, the issue is whether there is a real and
substantial possibility of the loss occurring. In Perren v Lalari, 2010
BCCA 140, the Court of Appeal confirmed the following with respect to a claim
for loss of income earning capacity:

[32]      A plaintiff must always
prove … that there is a real and substantial possibility of a future event
leading to an income loss. If the plaintiff discharges that burden of proof,
then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and Romanchych.
A plaintiff may indeed be able to prove that there is a substantial possibility
of a future loss of income despite having returned to his or her usual
employment. That was the case in both Pallos and Parypa. But, as
Donald J.A. said in Steward, an inability to perform an occupation that
is not a realistic alternative occupation is not proof of a future loss.

[Underline
emphasis in original.]

[127]     In light
of the consensus with respect to traumatic brain injury and concussion, and
with respect to her PTSD and major depressive disorder being in remission, the
nature of the plaintiff’s ongoing disability is unclear.

[128]     I find
that there is no substantial possibility of a future event leading to an income
loss as a result of the Accident of December 4, 2009. Accordingly, the plaintiff
is not entitled to an award for future wage loss or loss of earning capacity.

Cost of Future Care

[129]    
In Izony v. Weidlich, 2006 BCSC 1315, the court indicated that an award under this head
of damages should only be made for items or services that the plaintiff has
used in the past or is likely to use in the future:

[73]      … The defendant cites Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) for the proposition that future
care costs must be objectively based on medical justification and
reasonableness.

[74]      I
agree that future care costs must be justified as reasonable both in the sense
of being medically required and in the sense of being expenses that the
plaintiff will, on the evidence, be likely to incur (see generally Krangle).
I therefore do not think it appropriate to make provision for items or services
that the plaintiff has not used in the past (see Courdin at
para. 35), or for items or services that it is unlikely he will use in the
future.

[130]    
The applicable principles were also described in
Kuskis v. Hon Tin, 2008 BCSC 862 at paras. 163-64:

[163]    An award for the cost of future
care is notional and imprecise in nature: Strachan (Guardian ad Litem of) v.
Reynolds, 2006 BCSC 362. The court must consider evidence regarding what
care is likely in the injured person’s best interest and calculate its present
cost, with appropriate adjustment for contingencies in all of the circumstances
of the case: Courdin v. Meyers, 2005 BCCA 91.

[164]    In
making an award for future care costs the court must take into account both
what is medically required and what expenses the plaintiff will likely incur.

[131]    
The quantification of future care costs was
discussed by the Supreme Court of Canada in Krangle (Guardian ad litem of)
v. Brisco, 2002 SCC 9 at para. 21:

[21]      Damages
for cost of future care are a matter of prediction. No one knows the future. Yet
the rule that damages must be assessed once and for all at the time of trial
(subject to modification on appeal) requires courts to peer into the future and
fix the damages for future care as best they can. In doing so, courts rely on
the evidence as to what care is likely to be in the injured person’s best
interest. Then they calculate the present cost of providing that care and may
make an adjustment for the contingency that the future may differ from what the
evidence at trial indicates.

[132]    
Further, in Penner v. Insurance Corporation
of British Columbia, 2011 BCCA 135, the Court of
Appeal reminded us that common sense should inform damages awards under this
head:

[13]      Ms. Katalinic drew our
attention to the Court’s comments in Travis v. Kwon, 2009 BCSC 63, where
Johnston J. said this about claims for damages for future care costs:

[109]    Claims
for damages for cost of future care have grown exponentially following the
decisions of the Supreme Court of Canada in the trilogy of decisions usually
cited under Andrews v. Grand & Toy, Alberta Ltd, [1978] 2
S.C.R. 229, [1978] 1 W.W.R. 577.

[110]    While
such claims are no longer confined to catastrophic injury cases, it is useful
from time to time to remind oneself that damages for future care grew out of
catastrophic injuries and were intended to ensure, so far as possible, that a
catastrophically injured plaintiff could live as complete and independent a
life as was reasonably attainable through an award of damages.

[111]    This is
worth mentioning because the passage of time has led to claims for items such
as, in this case, the present value of the future cost of a long-handed duster,
long-handed scrubber, and replacement heads for the scrubber, in cases where
injuries are nowhere near catastrophic in nature or result.

This is a
reminder that a little common sense should inform claims under this head,
however much they may be recommended by experts in the field.

[133]     Barbara Phillips, physiotherapist and rehabilitation specialist,
prepared a report dated October 15, 2013. In it, she made recommendations for
physical therapy, psychological treatment, and the cost of medications. She
made recommendations for workplace accommodations in her previous report dated
April 30, 2012.

[134]     I agree with the defendants that the proposed future care costs
relating to the plaintiff’s psychological complaints, i.e. medication and
counselling, are not recoverable. However, a modest award for some ongoing
physical therapy and workplace accommodations as proposed is appropriate.

[135]     I award the following amounts for the plaintiff’s cost of future
care:

[136]     Bearing in mind that the award for costs of future care must be moderate
and fair to both parties, I assess damages for cost of future care in the total
amount of $2,500.

Loss of Housekeeping Capacity

[137]     It has been accepted that loss of housekeeping capacity is a
separate head of damages: McTavish v. MacGillivray, 2000 BCCA 164 at
para. 63. It is the loss of an asset which an individual had prior to an
accident and no longer has.

[138]    
In Jones v. Davenport,
2008 BCSC 18 at para. 92, the court summarized the test for loss of
housekeeping capacity as follows:

[92]      … I infer from the authorities
that a plaintiff must establish a real and substantial possibility that
she will continue in the future to be unable to perform all of her usual and
necessary household work. It would also need to be shown that the work that she
will not be able to do, will require her to pay someone else to do, or will
require others to do it for her gratuitously.

[Emphasis
added.]

[139]     Ms. Phillips prepared a report in relation to the plaintiff’s
housekeeping capacity dated September 13, 2013. In it, she made recommendations
for weekly and seasonal housecleaning for the remainder of the plaintiff’s
life:

[140]     The defendants submit that no award should be made for loss of
housekeeping capacity.

[141]     In assessing damages under this head, I have taken into account the
difficulty the plaintiff has had, and may continue to have in the future, in
performing her housekeeping duties. I conclude that the plaintiff has suffered
some loss of housekeeping capacity. She will be forced to incur expenses in the
future as a result. I award $23,000 for loss of housekeeping capacity.

Special Damages

[142]     An injured person is entitled to recover reasonable out-of-pocket expenses
incurred as a result of an accident in order to restore the claimant to the
position he or she would have been in had the accident not occurred: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at para. 170.

[143]     The
defendants submit the plaintiff is entitled to reasonable and appropriate
out-of-pocket expenses for treatment of her physical injuries.

[144]     The plaintiff submits a total of $19,753.77 for special damages,
broken down as follows:

The plaintiff drew my attention to the fact that some of
the physiotherapy costs were paid, while others were incurred and are still
owed under a direction to pay.

[145]     The total
amount of $19,753.77 will be awarded.

IX.   CONCLUSION

[146]     To
summarize, I award:

[147]     I also order
interest to be paid to the plaintiff pursuant to the Court Order Interest
Act. This is to include prejudgment interest on the award of special
damages: Thibeault v. MacGregor, 2013 BCSC 808 at paras. 134-135;
and Jones v. Davenport at para. 106.

[148]     The plaintiff
is entitled to her costs of this action.

“Romilly J.”