IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140613

Docket: M121470

Registry:
Vancouver

Between:

Amy Ashley Kirkham

Plaintiff

And

Adam Sho
Richardson

Defendant

Before:
The Honourable Madam Justice Warren

Reasons for Judgment

INTRODUCTION

[1]            
Amy Kirkham seeks damages for personal injuries she suffered in a car
accident on January 5, 2011. She claims that she injured her neck, shoulders,
upper back, and left hip in the accident, and that she now suffers from
myofascial pain syndrome, cervical facet arthropathy, left hip girdle pain, and
chronic pain syndrome, all of which has disabled her from competing as a
professional triathlete and delayed her PhD studies by one year. She seeks
compensation for her personal injuries and the associated pain and suffering,
past loss of income, future loss of income, cost of future care, special
damages, and costs.

[2]            
Liability has been admitted. The defendant also admits that Ms. Kirkham
suffered soft tissue strain to her neck in the car accident but takes the
position that her injuries were resolving when her recovery was complicated by
injuries she suffered in a bike crash while competing in a triathlon four and
one-half months after the car accident, and that any ongoing symptoms and
disability are attributable to the bike crash.

ISSUES

[3]            
The primary issues are (1) causation with respect to the various
injuries Ms. Kirkham claims she sustained in the car accident and which
she asserts continue to affect her; (2) the impact, if any, of the subsequent
bike crash on those injuries, and (3) the amount of damages to which she is
entitled under various heads of damage.

BACKGROUND

Before the car accident

[4]            
Ms. Kirkham was 26 years old at the time of the accident. She lives
with her spouse, David Stephens, who is an elite cyclist. She has no children.

[5]            
Ms. Kirkham is an accomplished young woman. In the years prior to
the car accident, she pursued athletics and academics with uncommon discipline,
dedication, and determination. At the time of the accident, she was an aspiring
professional triathlete and a PhD student who effectively balanced her studies
and her sport.

[6]            
Ms. Kirkham graduated from York University in June 2008 with a
Bachelor of Science degree in kinesiology. She then moved to Vancouver and
completed a Master of Science degree in exercise psychology at UBC. In
September 2010, Ms. Kirkham commenced her PhD studies in rehabilitation
sciences at UBC. Her work is in the field of cardiovascular and exercise
oncology, with a focus on the impact of breast cancer chemotherapy on the
cardiovascular system.

[7]            
At the time of the accident, Ms. Kirkham was four months into her
PhD program. In addition to course work, she also worked as a teaching
assistant. She devoted at least 40 hours per week to her PhD studies, with much
of that time spent working on a computer. Dr. Kristin Campbell, a
professor who supervised Ms. Kirkham’s Master’s Degree and is supervising
her PhD, testified that Ms. Kirkham’s performance during her Master’s and
the first term of her PhD was very good.

[8]            
Ms. Kirkham has been a competitive runner since the age of 12. She
was on the varsity running teams at York University and received several
awards. She began competing in triathlons in 2007, eventually focussing on the
half-Ironman distance, which consists of a 1.9 km swim, a 90 km cycle, and a
21.1 km run.

[9]            
In 2009, Ms. Kirkham joined the Leading Edge Triathlon Club, a
performance- oriented private club for triathletes, and started training under
a coach named Alan Carlsson. Mr. Carlsson described Ms. Kirkham as a
very motivated and professional athlete.

[10]        
By 2010, Ms. Kirkham was competing as an elite triathlete, which
meant she was eligible for prize money. In 2010, she had several podium
performances (finishing in the top three) in half-Ironman races. She
acknowledged that she had not yet arrived as one of Canada’s leading
triathletes but she was getting there. According to Mr. Carlsson, in 2010,
Ms. Kirkham was moving into the top level of triathletes.

[11]        
Encouraged by her success in 2010, Ms. Kirkham decided to try to
qualify for the half-Ironman World Championship to be held in September 2011.
To qualify, she had to accumulate points based on her performance in a series
of half-Ironman races referred to as the “70.3 Series”. She planned to compete
in several 70.3 Series races in 2011, with the first scheduled for Puerto Rico
in March.

[12]        
Prior to the car accident, Ms. Kirkham was following an intense
physical training regime. She devoted approximately 20 hours a week to a rigorous
schedule of biking, swimming, running, and weight training. She trained six
days a week, for up to five hours a day, split between a morning and evening
workout.

[13]        
In addition to training, Ms. Kirkham saw a chiropractor, Dr. Jonathan
Gerrard, approximately three times a month for what Dr. Gerrard referred
to as “performance care”. He described this as consistent care directed at
enhancing athletic performance and preventing injury by treating the subtle
changes to the tissues that result from intensive physical training.

[14]        
Prior to the car accident, Ms. Kirkham suffered some sports-related
injuries but she never had an injury that prevented her from training. None of
the medical experts considered Ms. Kirkham’s pre-car-accident health to
have contributed to the injuries she suffered in the car accident or to her
current condition.

[15]        
Prior to the car accident, Ms. Kirkham’s social life revolved
around her athletics, with most social occasions consisting of training with
other high-level athletes. Ms. Kirkham’s friends, Amy Schneeberg, Sabrina
Wilkie, and Robert Johnson, described Ms. Kirkham as hard-working, driven,
goal-oriented, motivated, confident, and incredibly fit. Ms. Schneeberg, a
long-time runner and PhD student herself, testified that she and Ms. Kirkham
would do 16 km runs together before school. Ms. Wilkie, an elite distance
runner, described Ms. Kirkham as a “super keen” person, for whom school
was the first priority and training a close second. Mr. Johnson, an elite
triathlete who trained with Ms. Kirkham, described her as upbeat and
committed to her sport.

[16]        
As already noted, Ms. Kirkham’s spouse, Mr. Stephens, is also
an elite athlete. They met on an athletes’ dating website. Prior to the
accident, their lives were dedicated to sport and work. Mr. Stephens
described Ms. Kirkham as intensely focused on her PhD studies and her
triathlon training. They spent most of their time together participating in
physical activities such as lengthy bike rides. Even their vacations revolved
around athletics, including a trip spent cycling in the mountains in Spain.

The car accident:  January 2011

[17]        
At approximately 4:45 pm on January 5, 2011, Ms. Kirkham was
driving westbound on West 16th Avenue in Vancouver on her way to a training
session at UBC. She entered the intersection at Pine Street on a green light
and the defendant, who was traveling eastbound on West 16th Avenue, turned left
in front of her. The front of Ms. Kirkham’s car hit the passenger side
rear door of the defendant’s car. Although Ms. Kirkham applied her brakes
before the collision, the impact was sudden and hard. Ms. Kirkham was
wearing her seatbelt. The airbags in Ms. Kirkham’s car deployed.

[18]        
Ms. Kirkham’s car would not start following the accident and had to
be towed away. Ms. Kirkham was driven home by a police officer. Ultimately,
the car was written off.

Effects of the car accident:  January to early May 2011

[19]        
Shortly after the accident, Ms. Kirkham began feeling pain in her
neck, shoulders, and upper back, and she developed a headache. The next day, the
pain was more intense. She went to see Dr. Gerrard, who noted her chief
complaints as right neck pain, bilateral posterior shoulder/upper trapezii
pain, and mid-scapular pain. On examination, he noted tenderness, muscle spasm,
increased muscle tone and taut bands in the neck, upper back and shoulder
areas, and significantly reduced cervical range of motion in all six directions
(flexion, extension, right rotation, left rotation, right lateral flexion, and
left lateral flexion).

[20]        
Dr. Gerrard administered two questionnaires, the Neck Disability
Index and the Oswestry Low Back Pain Disability Index, which are intended to
assess the degree to which pain is interfering with a patient’s activities.
Although both indices are based entirely on the patient’s subjective responses
to written questions, Dr. Gerrard considers them to be particularly useful
for monitoring the progress of a patient’s symptoms over time. Ms. Kirkham
initially scored moderate to severe on the Neck Disability Index, which Dr. Gerrard
calculated as a 50% disability. He calculated her low back disability at
approximately 15% on the basis of the Oswestry Index.

[21]        
In mid-January 2011, Dr. Gerrard recommended that Ms. Kirkham
see a massage therapist and a physician. She started massage therapy with Tasha
Stewart at UBC Massage Therapy Clinic and saw Dr. Hall, a general
practitioner at a walk-in clinic. Dr. Hall recommended physiotherapy and Ms. Kirkham
then started treatments at Treloar Physiotherapy.

[22]        
Ms. Kirkham returned to the walk-in clinic approximately three
weeks later and saw another general practitioner, Dr. Shiu. Dr. Shiu
recommended that she continue with physiotherapy, massage therapy, and
chiropractic treatments, and he also prescribed a muscle relaxant. Ms. Kirkham
followed Dr. Shiu’s recommendations.

[23]        
Ms. Kirkham struggled after the accident to keep up with the weekly
readings for the two courses she was enrolled in. Her work required her to sit
at a computer for significant periods of time and this was very painful. She
made some adjustments to her equipment (for example, raising her laptop to eye
level, getting a wireless keyboard and mouse, and raising her chair) in order
to minimize the pain.

[24]        
Ms. Kirkham took approximately one week off from training after the
accident, and then gradually began again with a much-reduced regime. About a
week after the accident, she started some indoor cycling sessions, which were
much easier on her neck than outdoor riding because she could sit more upright
and keep her neck in one position. Shortly after starting the indoor cycling, Ms. Kirkham
added light swimming at about half the intensity that she had been doing before
the accident and with frequent breaks. She modified her swim stroke to
accommodate her neck pain and had to refrain from flip turns for a year because
it prevented her from tucking her chin into the required position. At about the
beginning of March 2011, Ms. Kirkham returned to gentle running, beginning
slowly on a treadmill and gradually increasing her running time.

[25]        
Ms. Kirkham got a new bike after the accident and had it modified
to accommodate her modified position. She testified that since the accident,
her left hip had been twisted forward and this necessitated adjustments because
one foot rested further forward than the other.

[26]        
During the three to four months following the accident, Ms. Kirkham’s
condition improved but did not resolve. She continued to have recurring pain in
her neck, shoulders, and upper back. The physiotherapy, massage therapy,
chiropractic treatments, and medication provided some relief but the pain
interfered with her studies and her training. She was emotional and irritable
from the pain and from her inability to train at her previous intensity.

[27]        
A symptom diary that Ms. Kirkham kept indicates that she did have,
even in January 2011, some good days. For example, the diary entry for January
15 states that she did a 70-minute bike workout in her aerobars (extended
handlebars used by bike racers that reduce the rider’s wind profile by lowering
the rider’s torso and keeping the rider’s elbows in close to the body) without
pain, but also without looking up. However, the diary also indicates she had
very significant pain on January 17, 18, and 19, and she could not use the
aerobars during a bike workout on January 23.

[28]        
Mr. Carlsson testified that during the three to four months
following the accident, Ms. Kirkham complained a lot about neck and back
pain, which he said affected her posture and technique. He said her training
progressed gradually over this period, but she was nowhere near where she had
been before the accident in terms of intensity, volume, and technique.

[29]        
Notwithstanding her pain, Ms. Kirkham assumed she would get better
and was still hoping to accumulate the points she needed to qualify for the
World Championship in September 2011. She persevered and continued to increase
the volume and intensity of her workouts, most often working through the pain.

[30]        
Ms. Kirkham cancelled a half marathon that she had planned to run
in Vancouver in February. She also cancelled the 70.3 Series half-Ironman in
Puerto Rico in March. However, after discussions with Dr. Gerrard, Ms. Kirkham
decided to compete in a 70.3 Series half-Ironman in April 2011 in New Orleans.

[31]        
Mr. Carlsson encouraged Ms. Kirkham to enter races in the
spring of 2011. He described Ms. Kirkham as “competition-oriented” and
said she needed the competition to stay motivated. He said the goal for the New
Orleans race was just to finish it.

[32]        
Ms. Kirkham saw a chiropractor in New Orleans before the race who
taped her neck, which is something she had never done before. The swim portion
of the New Orleans race was canceled due to high winds. The cycling portion was
relatively easy and flat, but, during the final 45 minutes, Ms. Kirkham
experienced significant neck pain and could see her power output dropping
significantly. The pain was relieved when she started the running portion. Her
symptoms did not worsen following the race, notwithstanding the pain she felt
while cycling.

[33]        
Ms. Kirkham’s cycling and running times in New Orleans were similar
to the times she had posted in half-Ironman events in 2010. Ms. Kirkham
testified that in the circumstances, she was happy with her performance.
However, she emphasized that she had been improving consistently at a rapid
rate in all three triathlon disciplines in 2010. She considered she had a lot
of potential for additional improvement and believed she would have
significantly improved her times had it not been for the car accident.

[34]        
Ms. Kirkham switched physiotherapists after the New Orleans race
and started seeing Marilou Lamy on a weekly basis. On the first visit, on April
26, 2011, Ms. Kirkham told Ms. Lamy that although she considered
herself approximately 50% recovered, she was not satisfied with her progress,
she could not perform at the same training level as before the car accident,
and she had difficulty sitting at the computer.

[35]        
On examination, Ms. Lamy noted upper facet joint dysfunction of the
upper cervical region as well as the mid/lower cervical area, with what she
referred to as a link to the right shoulder and arm causing discomfort in those
areas, and some neural tension. Ms. Lamy also noted restricted mobility in
Ms. Kirkham’s thoracic spine and left hip that seemed related to her neck
in that when she worked on improving the mobility in the thoracic spine and hip
area it also improved the neck mobility.

[36]        
Ms. Lamy said that she thought not enough had been done to improve
the strength and endurance in the muscles of Ms. Kirkham’s neck, upper
back, and pelvis and so she recommended Ms. Kirkham commence Pilates with
a colleague named Stephanie McCann. Ms. Lamy and Ms. McCann worked
together to tailor a program designed to increase Ms. Kirkham’s muscular
control.

[37]        
On May 5, 2011, Ms. Kirkham started seeing Dr. D.R.
Lloyd-Smith, a general practitioner specializing in sports medicine. Dr. Lloyd-Smith
testified that when he first saw Ms. Kirkham, she told him that she had
gradually increased her training to about 15 to 18 hours per week but was
continuing to have pain. He diagnosed Ms. Kirkham with a whiplash
associated disorder grade 2 with myofascial pain syndrome and recommended
trigger point analgesic injections. Ms. Kirkham felt immediate relief upon
receiving the first injections on May 6, 2011, lasting as much as a couple of
weeks.

[38]        
Ms. Kirkham’s performance at school suffered immediately following
the car accident. Dr. Campbell testified that in the period from January
to April 2011, Ms. Kirkham was not physically present as much as she had
been in the first term. Also, in Dr. Campbell’s view, Ms. Kirkham was
not making adequate progress with her main project and was missing deadlines. Dr. Campbell
characterized Ms. Kirkham’s performance during this time as unacceptable
and out of character. She scheduled a meeting with Ms. Kirkham for May 26,
2011, to discuss Ms. Kirkham’s performance in anticipation of submitting a
formal annual progress report on Ms. Kirkham to UBC.

The bike crash:  May 2011

[39]        
Although Ms. Kirkham was still suffering from pain that impeded her
training, she decided to participate in two half-Ironman races in May 2011. She
said she made this decision after finding that her symptoms did not worsen
after the New Orleans race. Dr. Gerrard, Dr. Lloyd-Smith, and Mr. Carlsson
all supported this decision.89

[40]        
Ms. Kirkham achieved a personal best time in the swim portion of
the first race in Spain; however, her neck pain was very bad during the last
hour of the cycling portion. Still, she recovered well following this race and
was optimistic about the next one.

[41]        
The second race was in Austria. The swim portion went well, but she
suffered significant neck pain from the beginning of the cycling. She swerved
while trying to pass another cyclist and crashed. She estimates she was
traveling approximately 40 km/hour at the time of the fall. She hit her head
and has no memory of the fall itself. She was taken to hospital by ambulance,
where she remained overnight. She had road rash on her left shoulder, left chin,
cheekbone, and neck, and was diagnosed as having suffered a concussion. She
said she was initially concerned that she may have aggravated her neck and
upper back injury and was relieved when she did not feel any change in her neck
and upper back symptoms following the crash.

[42]        
Ms. Kirkham left the hospital the day after the fall. She and Mr. Stephens
spent a couple of days being tourists, as originally planned, and then returned
to Vancouver. Mr. Stephens testified that during this time Ms. Kirkham
had a bit of a headache, but she was generally fine and did not complain about
any increased neck pain.

After the bike crash

[43]        
On May 26, 2011, the day after she returned to Vancouver, Ms. Kirkham
saw both Dr. Gerrard and Dr. Lloyd-Smith. Dr. Gerrard performed
a neurological exam, palpated Ms. Kirkham’s neck area, and did range of
motion testing. He said he did not find any significant change to her car
accident related injuries. Dr. Lloyd-Smith testified he found nothing new
on physical examination to suggest the bike crash significantly affected her
neck.

[44]        
Also on May 26, 2011, Ms. Kirkham met with Dr. Campbell in
anticipation of Dr. Campbell submitting an annual progress report on Ms. Kirkham
to UBC. At the meeting, Dr. Campbell told Ms. Kirkham about her
concerns regarding Ms. Kirkham’s performance, which were subsequently
reflected in the report she submitted in early June. Ms. Kirkham was
devastated by Dr. Campbell’s assessment. She said she had never had a bad
report in her entire life.

[45]        
 After about a week off training immediately following the bike crash, Ms. Kirkham
then commenced a regime significantly decreased due to her concussion symptoms.
Between May and July 2011, she focused on indoor cycling. She resumed track
running in August 2011. She did not compete in any races for the balance of
2011.

[46]        
In June 2011, Ms. Kirkham was feeling depressed about the
persistence of the neck pain and about having to significantly decrease her
training and cancel a race due to the concussion. Dr. Lloyd-Smith
suggested she see a counselor at UBC. Ms. Kirkham saw the counselor three
times because that was the maximum number of visits UBC would provide.

[47]        
In July 2011, on Dr. Lloyd-Smith’s advice, Ms. Kirkham went to
GF Strong Rehabilitation Centre, where she received some guidance for managing
concussion symptoms. It was suggested that she take some time off her studies
but she testified that by this time she felt that her concussion symptoms were
on the way to resolution. Although she did not take any time off from her
studies, her progress slowed over the summer due to her headaches and
concentration difficulties.

[48]        
Over the summer of 2011, Ms. Kirkham continued her physiotherapy,
chiropractic treatments, massage therapy, and trigger point injections. She
said her neck and shoulder symptoms remained about the same as they had been
prior to the crash. Her concussion symptoms resolved.

[49]        
Ms. Kirkham testified that she became overwhelmed in September
2011. The concussion symptoms had resolved but the injuries she sustained in
the car accident were not improving. She was experiencing daily pain, which was
exacerbated by working at the computer. She had not been working as a teaching
assistant between January and September 2011, but returned to teaching in
September which increased the demands on her time. She was continuing to attend
many physiotherapy, chiropractic, and massage therapy sessions each week, which
was time consuming. Her practitioners were recommending that she take on
additional rehabilitation such as yoga but she had no time to do it. She was
still feeling disappointed by Dr. Campbell’s progress report. At an
appointment with Dr. Lloyd-Smith in October she broke down.

[50]        
Dr. Lloyd-Smith thought Ms. Kirkham’s stress was impeding the
healing of her neck injury. He said she needed to reduce her computer use
because it exacerbated the neck pain. He recommended she take a leave of
absence from school. Ms. Kirkham discussed the idea with Dr. Campbell
and another academic mentor, both of whom were supportive. With that support, Ms. Kirkham
reluctantly applied for and received permission to take a leave of absence from
her PhD program from October 2011 to April 2012.

[51]        
During the leave of absence, Ms. Kirkham considered the
rehabilitation of her neck and back injury to be her job. She spent hours doing
yoga, stretching, and strength training. She continued regular physiotherapy
and chiropractic treatments and appointments with Dr. Lloyd-Smith. She
reduced her computer use to a couple of hours per week.

[52]        
In November 2011, Ms. Kirkham became ill with pneumonia. She was
bed-ridden for two to three weeks and suffered lingering symptoms for a further
few weeks. After she recovered from the pneumonia, she noticed that her pain
seemed quite a bit better.

[53]        
Ms. Kirkham said that by about January 2012 she was feeling quite
well. Dr. Gerrard noted that by January 2012 her cervical range of motion
had recovered in all directions except cervical extension.

[54]        
In early 2012, Ms. Kirkham returned to some training with Mr. Carlsson.
She started with cycling and, by February 2012, was doing about five hours a
week of swimming, cycling, and running. She then suffered a flare-up of her
neck symptoms. In April, on Dr. Lloyd-Smith’s recommendation, she
increased the dosage of her pain killers in the hope that it would allow her to
increase her training volume and intensity. She gradually increased her
training schedule through the spring; however, as noted by Dr. Lloyd-Smith,
she then developed some left lateral knee and left hip pain.

[55]        
In April 2012, Dr. Lloyd-Smith recommended that Ms. Kirkham
extend her leave of absence for another term to the end of August 2012. He felt
she had made progress but was not physically ready to go back to intense
computer work. Ms. Kirkham was reluctant, but extended her leave of
absence to September 2012.

[56]        
Because she was concerned about having to suddenly return to her studies
in September on a full-time basis, Ms. Kirkham took it upon herself to
resume some computer work in May 2012. She gradually increased her computer use
until August 2012, when she was managing four hours a day without any
significant pain.

[57]        
Ms. Kirkham continued to increase her training volume and intensity
over the summer of 2012. She participated in a few races but no triathlons. She
had some very good days but also days when the pain was bad, particularly when
she pushed hard in workouts. She was still having difficulty sustaining the
proper drop position while cycling, which required her neck to be extended for
lengthy periods of time.

[58]        
By August or September 2012, Ms. Kirkham was training at a level
close to her pre-accident level. Dr. Lloyd-Smith’s clinical record of
September 27, 2012, indicates that Ms. Kirkham reported being pain-free
80% of the time. However, she could not get down into her aerobars while
cycling and had difficulty looking up while swimming.

[59]        
Mr. Carlsson testified that throughout 2012 it was apparent that Ms. Kirkham
was still dealing with a lot of neck and back pain. He said her hours per week
of training were inconsistent. When the pain increased, she had to reduce the
training. He characterized her progress as one step forward, two steps back,
two steps forward, one step back. Even though she was close to her pre-accident
volumes of training, he considered that there was no noticeable pattern of
improvement in her performance.

[60]        
Mr. Stephens’ evidence about Ms. Kirkham’s progress throughout
2012 was similar to that of Mr. Carlsson. He testified that Ms. Kirkham
did get back to a training volume that approached her pre-accident level but he
said it went in waves. She would get the volume up and then have a flare-up in
pain and decrease her training again.

[61]        
Ms. Kirkham returned to her PhD studies on a full-time basis in
September 2012. However, she became exhausted and discouraged by what she
considered to be a lack of improvement in her athletic performance given she
was back to her regular training volumes. In October or November 2012, she
started having more significant hip pain.

[62]        
In the fall of 2012, Ms. Kirkham started seeing another
physiotherapist named Mr. Sean Campbell, who specializes in rehabilitating
high level athletes. Mr. Campbell focused on reprogramming the ways Ms. Kirkham
uses her muscles when she moves, which addresses the compensatory strategies
she has developed as a result of the pain from her injuries. Mr. Campbell
has also treated Ms. Kirkham with manual therapy, intramuscular
stimulation or IMS (a needling technique similar to acupuncture), exercise, and
taping. He testified that she has responded favourably to this treatment.

[63]        
In the fall of 2012, Mr. Campbell and Ms. Lamy recommended
that Ms. Kirkham stop her triathlon training and restrict her physical
activities to physiotherapy, yoga, Pilates, and strength training. Mr. Campbell
referred to this as a “therapeutic regime” to gradually increase her tolerance
for both work and athletics. Dr. Lloyd-Smith agreed with this approach. Ms. Kirkham
followed this recommendation, concluding she could no longer manage both her
studies and the intense training required of an elite athlete.

[64]        
Ms. Kirkham testified that she has been quite successful in her
studies since giving up training and is on track to finish her PhD in August
2015. Dr. Campbell said Ms. Kirkham’s performance in her studies
since September 2012 has been very good.

[65]        
On Ms. Lamy’s recommendation, and with Dr. Lloyd-Smith’s
support, Ms. Kirkham saw a sports psychologist three times in late 2013.
She canceled her last scheduled appointment with him as she felt she had made a
fair amount of progress.

[66]        
Ms. Kirkham testified that the injuries she suffered in the car
accident not only affected her academics and athletics but also affected daily
activities such as grocery shopping and homemaking. She said she still finds it
difficult to lift things like grocery bags and laundry. She testified that she
could not even do the dishes for the first couple of years following the
accident, but as her pain has become more manageable, she has resumed some of
these activities. She still avoids lifting because it causes pain.

[67]        
Ms. Kirkham testified that the accident has affected her
relationship with Mr. Stephens. She explained that she has been concerned
that his feelings towards her will change because she has changed so
dramatically. A passion for high level athletics is what originally brought
them together. He had started dating a woman who was extremely athletic,
confident, focused, and driven, and she has become someone else entirely. Her
confidence suffered, her body image suffered, she was often emotionally upset,
and this affected their relationship. While Ms. Kirkham’s triathlon career
suffered and ultimately came to an end, Mr. Stephens was excelling in his
cycling career, and Ms. Kirkham had to work hard not to resent his
success. He continues to train four to five hours on Saturday and Sunday
mornings and she is left at home alone. Ms. Kirkham testified that both
she and Mr. Stephens are not particularly interested in doing things for
fun. They both wanted to focus on becoming the best at something. He is
continuing to pursue that goal and she has been left behind.

[68]        
Ms. Kirkham has been able to pursue some recreational activities,
including recreational cycling. In December 2012, while on vacation with Mr. Stephens,
Ms. Kirkham cycled up Mount Haleakalā
on Maui, a 56 km “hill climb”, which took about four hours. She explained that
one sits more upright when cycling uphill and this is much easier on her neck.
Because she is unable to sustain the bent-over body position that is required
when racing or cycling downhill, Ms. Kirkham only cycled up Mount Haleakalā. Mr. Stephens met
her at the top to drive her back down. In May 2013, Ms. Kirkham and Mr. Stephens
spent six days at Mount Hood in Oregon, where they cycled and hiked.

[69]        
Ms. Kirkham testified that the injuries she suffered in the
accident have affected her relationships with her friends. She explained that
all her friends are athletes and their time together was spent in athletic
pursuits, particularly running. Her friends still plan trail runs and other
adventurous activities, and Ms. Kirkham is left out. Ms. Kirkham’s
evidence in this regard was corroborated by her friends Ms. Schneeberg, Mr. Johnson,
and Ms. Wilkie, who also testified about the changes they have witnessed
in Ms. Kirkham’s personality, from confident and upbeat to emotional and
depressed.

[70]        
Ms. Kirkham testified that it is hard for her to remain optimistic
that she will ever compete in triathlon again. It has been more than three
years since the accident and she finds it difficult to imagine she could ever
return to compete at her previous level after losing that time.

[71]        
At present, Ms. Kirkham’s neck, shoulder, and upper back pain is
manageable if she restricts her computer work to a normal workweek. Her pain
flares up if she has to spend more than about ten hours a day at her computer,
and also if she works at a location other than the office workstation that has
been specifically configured. She resumed some track running in January 2014,
but it exacerbated her pain. She continues to suffer from hip pain.

[72]        
Ms. Kirkham continues to work with and follow the advice of Ms. Lamy
and Mr. Campbell. She has reduced her chiropractic care because Mr. Campbell
recommended greater focus on active treatments. She continues to participate in
yoga, Pilates, strength training, and some track running and sees Dr. Lloyd-Smith
for trigger point injections. She takes pain killers and muscle relaxants as
prescribed by Dr. Lloyd-Smith.

[73]        
Ms. Kirkham remains optimistic about her future academic life. Upon
completing her PhD, she plans to do two or three years of postdoctoral study
and then apply for a professorship.

MEDICAL EVIDENCE

[74]        
Ms. Kirkham relied on medical reports written by Dr. Heather
Finlayson (who conducted an independent medical examination of Ms. Kirkham
at the request of Ms. Kirkham’s counsel) and her treating practitioners, Dr. Lloyd-Smith,
Dr. Gerrard, Ms. Lamy, and Mr. Campbell, each of whom also
testified at trial. The defendant relied on medical reports written by Dr. Marc
Boyle, who conducted an independent medical examination of Ms. Kirkham at
the request of counsel for the defendant, and who testified via video
deposition. A summary of the medical evidence is set out below.

Dr. Heather Finlayson

[75]        
Dr. Finlayson is a specialist in physical medicine and
rehabilitation. She also has a Diploma in sport medicine. She is a staff
physician for the GF Strong Rehabilitation Centre Neuromusculoskeletal
Rehabilitation Program, a consultant at Vancouver General Hospital, and a
Clinical Assistant Professor in the UBC Faculty of Medicine. She is trained in
the diagnosis, medical management, and rehabilitation of persons with spinal
cord injury, acquired brain injury, general medical disorders, neurologic
disorders, amputation, arthritis, soft tissue injuries, and musculoskeletal
pain syndromes.

[76]        
On November 21, 2013, Dr. Finlayson interviewed Ms. Kirkham
and conducted a physical examination. She also reviewed the medical reports of Dr. Lloyd-Smith,
Dr. Gerrard, and Ms. Lamy. It is Dr. Finlayson’s opinion that as
a result of the car accident, Ms. Kirkham is suffering from myofascial
pain syndrome, cervical facet arthropathy, left hip girdle pain, and chronic
pain syndrome.

[77]        
Myofascial pain syndrome is a form of soft tissue injury where pain
originates in muscles, tendons, ligaments, and fascia. Dr. Finlayson
testified that this diagnosis was supported both by Ms. Kirkham’s history
of pain and stiffness beginning after the accident and by her own physical
examination. Dr. Finlayson found taut bands of muscle in Ms. Kirkham’s
shoulder and neck areas on palpation, which Dr. Finlayson referred to as
trigger points. She noted that Ms. Kirkham’s positive response to trigger
point injections supported her diagnosis of myofascial pain syndrome.

[78]        
Cervical facet arthropathy is a condition in which pain originates in
the facet joints of the neck. Dr. Finlayson testified that whiplash is a
common cause of cervical facet arthropathy, as the movement of the neck causes
strain on these small joints. She testified that the small ligaments become
injured, leading to microscopic inflammation that is not visible on an x-ray.
She said this condition is distinct from arthritis, which generally refers to
changes to the joints themselves such as narrowing caused by wear and tear. She
testified that cervical facet arthropathy can trigger myofascial pain syndrome.

[79]        
Left hip girdle pain is pain from a muscle that extends across the
buttock, from the base of the spine to the left side of the hip, and pain and
tightness in a tendon that extends from the muscles around the hip down the
side of the leg to the knee. Dr. Finlayson testified that this diagnosis
is supported by Ms. Kirkham’s subjective reports of pain and Dr. Finlayson’s
physical examination, during which she found tightness in this muscle and
tendon complex. Dr. Finlayson’s opinion is that Ms. Kirkham’s left
hip girdle pain “is probably a direct consequence of deconditioning, i.e.,
reduced strength and muscular endurance as a result of her reduced activity level
following the MVA”.

[80]        
Dr. Finlayson’s diagnosis of chronic pain syndrome was based on Ms. Kirkham’s
history of pain lasting for greater than three to six months that is associated
with decreased mood.

[81]        
In Dr. Finlayson’s opinion, the car accident was “the primary
material contributor” to each of these diagnoses and the bike crash was not a
significant contributor. Her opinion was based primarily on the history relayed
by Ms. Kirkham and the medical reports indicating that the neck, shoulder
and upper back pain symptoms began following the car accident and were not
worsened after the bike crash.

[82]        
In cross-examination, Dr. Finlayson expressed the opinion that the
forces that would be expected to pass through the neck following a car accident
are different from the forces that would be expected to pass through the neck
following a direct trauma to the head. Dr. Finlayson acknowledged that she
does not know how Ms. Kirkham fell off her bike in Austria but maintained
that a direct trauma to the head, alone, would not involve the same mechanism
of injury as the car accident. I did not take Dr. Finlayson to be ruling
out the possibility of a whiplash injury in a bike crash. Rather, I took her to
be saying that the fact Ms. Kirkham suffered a concussion in the bike crash
would not, without more, support a finding that the crash aggravated her neck
injury.

[83]        
Dr. Finlayson’s prognosis is that it is “improbable that Ms. Kirkham
will be able to resume her previous level of triathlon training and
competition” and it is “improbable that she will achieve the same level of
success and be able to gain sponsorship [as a triathlete] as she would have
prior to the MVA”. However, she was also of the view that there is potential
for improvement in Ms. Kirkham’s pain and her ability to engage in
recreational level sports with continued physiotherapy at least one to two
times per month (and perhaps up to four times per month) for the next year,
assistance from a personal trainer or athletic therapist to oversee her
training program for at least the next year, psychological support, and an
ergonomic assessment of her home-based workstation. If there is no improvement
in the left hip girdle pain with ongoing rehabilitation, then consideration
should be given to corticosteroid injections and/or Botox injections. She also
testified that it is not enough for Ms. Kirkham to exercise alone, and
that she continues to require regular guidance from professionals.

[84]        
The defendant raised many issues regarding Dr. Finlayson’s
evidence. I have considered all of them and none, in my view, detracts from the
weight to be accorded to Dr. Finlayson’s evidence. I will address some of
those issues specifically.

[85]        
First, the defendant submitted that Dr. Finlayson’s report does not
distinguish her opinion from Ms. Kirkham’s version of what caused the
complaints and injuries, because the instruction letter from Ms. Kirkham’s
counsel asked Dr. Finlayson to include in her report the history as
relayed by Ms. Kirkham. I do not agree. There is nothing objectionable
about counsel’s request. A medical report like the one prepared by Dr. Finlayson
must be based, in part, on the patient’s subjective history. I note that
counsel for the defendant told Dr. Boyle, in his letter, that he “may wish
to append” to his report a “detailed account of interviews you have had with
the plaintiff”. There is no material difference between the two instructions.
Further, and more fundamentally, Dr. Finlayson’s report clearly
distinguishes between her opinion, which is in the body of her report, and the
history as relayed by Ms. Kirkham, which is contained in an appendix.

[86]        
Second, the defendant pointed out that Dr. Finlayson relied on the
reports of Ms. Kirkham’s treating practitioners but was not provided with
their clinical records. As a result, her opinions depend upon the accuracy of
those reports. While this is true, the reports Dr. Finlayson relied upon
were not shown to be inaccurate in any material way. For example, a form
prepared by Dr. Gerrard for ICBC outlines dates that he provided treatment
to Ms. Kirkham prior to the car accident. Dr. Gerrard explained that
he did not include dates after May 2010 because he ran out of space on the
form. The defendant submitted that this provided a skewed view to Dr. Finlayson
because Dr. Gerrard treated Ms. Kirkham regularly up to December
2010. However, Dr. Finlayson also had access to Dr. Gerrard’s report
dated September 14, 2012, which expressly states that he treated Ms. Kirkham
between March 2009 and December 2010. In any event, all the doctors, including Dr. Boyle,
agreed that Ms. Kirkham had no significant pre-existing injuries. Thus,
whether or not Ms. Kirkham saw Dr. Gerrard in the months just prior
to the car accident is immaterial.

[87]        
Third, the defendant notes that Dr. Finlayson did not have access
to the diagnostic imaging reports that showed no evidence of clinically
significant arthropathy. However, Dr. Finlayson’s evidence was that her
diagnosis of cervical facet arthropathy referred to microscopic inflammation
that is not visible on an x-ray.

[88]        
Finally, the defendant notes that Dr. Finlayson’s diagnosis of
myofascial pain syndrome was stated to be supported by Ms. Kirkham’s
positive response to trigger point injections. The defendant submits that Dr. Finlayson
could not have known when the first of those injections were performed (and
thus could not conclude that the bike crash was not a significant contributor
to the pain) as the date was not indicated in Dr. Lloyd-Smith’s report.
However, Dr. Finlayson’s report expressly notes that Ms. Kirkham told
her that Dr. Lloyd-Smith performed the injections on several occasions
starting “in about May 2011”. The first trigger point injections were done on
May 6, 2011.

Dr. D.R. Lloyd-Smith

[89]        
Dr. Lloyd-Smith is a general practitioner specializing in sports
medicine. He completed a sports medicine fellowship in 1983 and a diploma of
sports and exercise medicine in 1985. He works as a sports medicine physician
at the student health clinic and at a sports medicine centre at UBC. He is also
a clinical professor in the Division of Sport and Exercise Medicine in the
Department of Family Practice at UBC.

[90]        
Dr. Lloyd-Smith has been Ms. Kirkham’s treating physician
since May 5, 2011. He diagnosed her with whiplash associated disorder grade 2
and myofascial pain syndrome as a result of the car accident and treated her
with trigger point injections.

[91]        
In Dr. Lloyd-Smith’s opinion, the bike crash was not a significant
contributor to Ms. Kirkham’s ongoing symptoms. His opinion was based on
the fact that once Ms. Kirkham’s concussion symptoms improved, she
returned to the same condition he had noted when he saw her on May 5, 2011. In
cross-examination, he acknowledged that neck pain frequently co-exists with
concussion, but denied that whiplash and concussion have similar mechanisms of
injury. He said it is possible that a fall involving a concussion could also
cause a neck injury, but maintained his view, based on her subjective report
and his own physical examination after the bike crash, that Ms. Kirkham’s
neck injury was not aggravated by the crash.

[92]        
Dr. Lloyd-Smith’s prognosis is that Ms. Kirkham will return to
pain-free normal daily activity and variable but manageable pain associated
with her studies. In his view, she cannot pursue both the PhD and the elite
level training she engaged in before the car accident. He considers it possible
that once she completes her PhD and is no longer required to spend so many
hours on the computer, she could return to unlimited sport, but he also said
that with the loss of at least four years while she completes her PhD, it is
unlikely that she will return to her status as a professional triathlete.

[93]        
In addition to physiotherapy, massage therapy, chiropractic care, and
analgesic medication, Dr. Lloyd-Smith recommended Ms. Kirkham
continue with IMS treatments and trigger point injections. He did not provide a
recommended timeframe for these treatments to continue because, in his view,
the settling of myofascial pain syndrome is so variable. He also expressed the
view that it is important for Ms. Kirkham to maintain her fitness,
strength, flexibility, and balance through yoga and/or Pilates.

Dr. Jonathan Gerrard

[94]        
Dr. Gerrard is a chiropractor with a special interest in the fields
of repetitive strain injuries and soft tissue injuries. He also has expertise
in biomechanics. Approximately 50% of his practice consists of treating elite
athletes.

[95]        
Dr. Gerrard started treating Ms. Kirkham before the car
accident for performance care and continued after for injury rehabilitation. He
examined her on January 6, 2011, the day after the accident, and found a
significant alteration in Ms. Kirkham’s tissue texture within the
cervicothoracic paraspinal muscles with evident muscle spasm, taut bands, and
spinal stiffness. He continued treating her regularly until June 2013.

[96]        
It is Dr. Gerrard’s opinion that Ms. Kirkham sustained a
chronic type III (front impact), grade III (moderate severity) whiplash injury
to the cervicothoracic spine and in particular to her cervical thoracic facet
joints in the car accident. He testified that women with long slender necks are
predisposed to more significant whiplash injury.

[97]        
Dr. Gerrard used two indices to monitor Ms. Kirkham’s progress
between January 2011 and March 2013. The Neck Disability Index shows marked
improvement in Ms. Kirkham’s neck disability between January and March
2011, from 50% disability to about 12%, followed by a series of more moderate
peaks and valleys. Since August 2012, Ms. Kirkham’s neck disability scores
have remained fairly constant at about 10%. The Oswestry Index shows more
gradual but also variable improvement, starting at about 15% disability in
January 2011, decreasing (though not steadily) to zero disability in August
2011, and remaining at about 4% from February 2012 to March 2013.

[98]        
Dr. Gerrard also monitored Ms. Kirkham’s progress over time by
measuring her cervical range of motion. As already noted, by January 2012, the
range of motion had recovered in five of the six directions. The sixth,
cervical extension, was close to normal in August 2012, but returned to a
slightly negative variance in April 2013.

[99]        
In Dr. Gerrard’s opinion, the bike crash did not result in any
significant change to Ms. Kirkham’s car accident related symptoms. He
based this opinion on his examination of Ms. Kirkham after the crash and
the fact that his findings remained unchanged.

[100]     In
cross-examination, Dr. Gerrard expressed the opinion that Ms. Kirkham
slid off her bike when she crashed, though he acknowledged that he does not
actually know how she fell. This opinion was based on the speed at which Ms. Kirkham
was traveling just prior to the crash (approximately 40 km/h), the fact that
she was going around a left turn, and that she suffered abrasions on the left
side of her body. He said that during a slide there is more time to decelerate
and the mechanism of injury would be different than it was in the car accident.
As with Dr. Finlayson’s evidence, I did not take Dr. Gerrard to be
saying that it is impossible to suffer a soft tissue neck injury in a bike
fall. I took him to be saying that because of the different mechanisms of
injury involved in the two kinds of impact, it would be wrong to infer a soft
tissue neck injury solely from the fact that Ms. Kirkham fell off a bike
and suffered a concussion.

[101]     In Dr. Gerrard’s
opinion, Ms. Kirkham has a poor prognosis for full recovery. In his view,
she will have ongoing chronic intermittent upper back pain with neck stiffness,
especially if participating in a rigorous training regime.

[102]     Dr. Gerrard
recommended ongoing multidisciplinary care including physiotherapy twice a
month, massage therapy every two to three weeks, and continued trigger point
injections. He also recommended she resume monthly chiropractic care once the
physiotherapy goals have been achieved. In his view, passive treatments such as
massage and chiropractic care are required because the muscles that move the
facet joints are small and not voluntarily controlled.

[103]     The
defendant submitted that Dr. Gerrard was biased in favour of Ms. Kirkham
and “injected advocacy” in his reports. For example, defence counsel suggested
that in both the Austrian bike crash and a previous one, Ms. Kirkham fell
from her bike on the left side and hit her head, and that Dr. Gerrard
“refused to acknowledge even these common elements”. This mischaracterizes Dr. Gerrard’s
evidence. He did acknowledge these common elements. He did not acknowledge that
both bike crashes would necessarily involve the same mechanism of injury
because, as he explained, he knew Ms. Kirkham was going around a bend in
the Austrian crash and the speed at which she was traveling, while he did not
know similar details about the other crash.

[104]     Dr. Gerrard
knew Ms. Kirkham well, having treated her on a regular basis since 2009.
He was well positioned to testify about her condition after the car accident,
the progress in her condition up to May 2011, her condition after the bike
crash, and her progression since then. I found him to be a careful and precise
witness and do not consider any of the criticisms levelled by counsel for the
defendant to undermine his credibility or the weight to be given to his
evidence.

Ms. Marilou Lamy

[105]     Ms. Lamy
is a registered physiotherapist with 20 years’ experience in private practice.
She has a Bachelor’s degree in physiotherapy, a graduate diploma in manual
therapy, and a diploma in sport physiotherapy. She has worked with the Canadian
National Track and Field Team, including at many major events such as the
Olympics, the World Championships, the Commonwealth Games, and the Pan-American
Games.

[106]     Ms. Lamy’s
treatments, beginning in April 2011, have focused on regaining mobility and
control in Ms. Kirkham’s neck, upper back, and hip. She has employed
various types of manual therapy techniques, myofascial release, deep tissue
release, IMS, and postural awareness exercises.

[107]     It is Ms. Lamy’s
opinion that Ms. Kirkham’s improvement has been significant but is not
complete. In her view, Ms. Kirkham has returned to a functional level with
respect to the activities of daily living and to a normal level of work in her
PhD studies, but is not able to resume her pre-accident training load. In her
view, it is possible that Ms. Kirkham will continue to gain mobility,
strength, and flexibility.

[108]     In Ms. Lamy’s
opinion, Ms. Kirkham requires ongoing physiotherapy treatment twice
monthly, gradually decreasing to once per month. She testified that while she
initially planned to help Ms. Kirkham develop some “self-management
strategies” she has come to the view, over time, that Ms. Kirkham requires
one-on-one supervision.

[109]     Counsel
for the defendant submitted that Ms. Lamy’s evidence ought to be given
little weight because, among other things, she made changes to her report that,
in the defendant’s view, were intended to downplay the role of Ms. Kirkham’s
concussion in her progress or to downplay her progress overall. For example, in
an earlier version of her report, Ms. Lamy stated that Ms. Kirkham
“had difficulty progressing after that bike crash and struggled to manage work
and training due to the head injury”. Ms. Lamy deleted the words “due to
the head injury” in her subsequent report. She explained she had done so
because she did not consider herself qualified to express an opinion regarding
the reason for Ms. Kirkham’s struggle to manage her work and training.

[110]     The
earlier version of Ms. Lamy’s report contained the sentence “By December
2011, she had returned to a decent level of training” and, later, “She had
pneumonia in December and it set her back as she was not able to return to any
type of sport and activities until mid-January 2012”. The final version of the
report does not include those sentences. Instead, it says: “She continued
during that time to increase her training load and it was going well until
November 2011 when she had pneumonia.”

[111]      In my
view, the differences in the two versions of Ms. Lamy’s report are not
material. Further, I accept her explanation that no one influenced her to make
the changes and that the changes were prompted by her concern to not overstate
and to restrict herself to expressing opinions only within her expertise. I do
not consider any of the matters identified by counsel for the defendant with
regard to Ms. Lamy’s evidence or her report to undermine her credibility
or the weight to be given to the opinions she expressed.

Mr. Sean Campbell

[112]     Mr. Campbell
is a registered physiotherapist. He has a Master’s Degree in physiotherapy and
exercise science. Ms. Kirkham has been seeing Mr. Campbell at least
once a month and sometimes two or three times a month since the fall of 2012.

[113]     It is Mr. Campbell’s
opinion that Ms. Kirkham has developed compensatory strategies in the way
she uses her muscles to support herself when engaged in various activities and
that these compensatory strategies exacerbate her symptoms. For example, he
explained that when sitting and cycling, she engages her neck and shoulder
muscles to support her position which results in cervical and upper thoracic
compression. He has employed treatments such as manual therapy, IMS, exercise,
and taping in an effort to restore normal patterns and increase kinesthetic
awareness.

[114]     In Mr. Campbell’s
opinion, given Ms. Kirkham’s progress to date, the consistent exacerbating
factors in her symptomology and the physical requirements of her training
regime, it is unlikely that she will return to competitive triathlon.

[115]     In Mr. Campbell’s
view, Ms. Kirkham requires ongoing treatment, similar to what she is
currently receiving, at least for the duration of her PhD and postdoctoral
studies.

Dr. Marc Boyle

[116]     Dr. Boyle
is an orthopedic surgeon who practiced as such for 30 years. He is now retired
from active practice and his work is restricted to conducting independent
medical examinations at the request of ICBC.

[117]     Dr. Boyle
saw Ms. Kirkham for an independent medical examination on December 17,
2013. He interviewed Ms. Kirkham and conducted a physical examination. On
palpation, he noted tenderness over the left trapezius and rhomboid and normal
muscle tone. He also noted tenderness in the hip area and the gluteus maximus
muscle. Among other things, he reviewed clinical records of Dr. Gerrard, Ms. Lamy,
and Dr. Lloyd-Smith, records from the Austrian hospital where Ms. Kirkham
was treated after the bike crash, the medical/legal reports of Dr. Gerrard,
Dr. Lloyd-Smith, Dr. Finlayson, and Ms. Lamy’s original report.

[118]     It is Dr. Boyle’s
opinion that as a result of the accident, Ms. Kirkham suffered a
myofascial strain to her cervical spine and she may have sustained a soft
tissue strain to her lumbar spine. In his opinion, Ms. Kirkham exacerbated
these injuries when she fell off her bike in Austria. In his view, had it not
been for that bike crash, Ms. Kirkham’s car accident related symptoms
would have resolved within six to nine months following the car accident, and,
had they persisted beyond that, would not have been disabling.

[119]     Dr. Boyle
disagreed with Dr. Finlayson’s opinion that Ms. Kirkham suffers from
cervical facet arthropathy. His report noted that there was no radiological
evidence that Ms. Kirkham suffered from such a condition. In
cross-examination, he equated cervical facet arthropathy with arthritis of the
facet joints and he said that the condition occurs when the discs between the
vertebrae dry out, which narrows the joint space and leads to the formation of
bone spurs. He said there was no radiological evidence to support a finding
that Ms. Kirkham has any joint space narrowing or bone spur formation. As
already discussed, Dr. Finlayson explained that cervical facet arthropathy
is distinct from arthritis and involves inflammation not visible on an x-ray.

[120]     While Dr. Boyle
did not appear to disagree with Dr. Finlayson’s diagnoses of myofascial
pain syndrome, left hip girdle pain, and chronic pain syndrome, he disagreed
that the car accident was the primary contributor to these conditions. He said
that Ms. Kirkham’s symptoms became inhibiting following the bike crash and
any continuing symptoms are, in his view, attributable to the bike crash and
not the car accident.

[121]     In terms
of future care, it was Dr. Boyle’s opinion that Ms. Kirkham should
involve herself in a self-physiotherapy program. In other words, she should
carry out exercises on her own. In his opinion, she does not require formal
physiotherapy, chiropractic care, massage therapy, acupuncture, a sports
psychologist, occupational therapist or any other therapy. In
cross-examination, he expressed the view that chiropractic treatments, trigger
point injections, acupuncture, and massage therapy are not “curative” and are
therefore of no long-term benefit. However, he acknowledged that such
treatments would make Ms. Kirkham feel better in the short term.

[122]     Dr. Boyle’s
opinions that Ms. Kirkham exacerbated her car accident related injuries in
the bike crash and that her continuing symptoms are attributable to the bike
crash and not the car accident, were based on the following:

·      
in his opinion, when a person suffers the kinds of injuries Ms. Kirkham
suffered in the bike crash (concussion and abrasions on the face, neck, and
shoulder) he or she will also suffer flexion or extension of the cervical
spine;

·      
the Austrian hospital took x-rays of Ms. Kirkham’s neck; and

·      
Ms. Kirkham had been on an upward curve of improvement prior
to the bike crash, though not completely asymptomatic, and the resolution of
her car accident symptoms was “near complete”; thus, the only explanation for
the change in her condition after the crash is that she must have reinjured her
neck.

[123]     In my
view, these opinions ought to be given little weight because they either do not
follow from the premises upon which they are based or the premises themselves
are flawed.

[124]     Dr. Boyle
assumed that because Ms. Kirkham suffered a concussion and abrasions in
the fall, she must have injured her neck. However, he ignored Ms. Kirkham’s
actual symptoms following the bike crash. He reviewed the clinical records and
reports of Ms. Kirkham’s treating practitioners but neglected to consider
the lack of any significant change to Ms. Kirkham’s condition, as noted by
them. He acknowledged in cross-examination that the Austrian hospital records
state there was no indication of pain in the area of the cervical spine
following the crash and that the cervical spine moved freely. He did not attempt
to explain how, in the face of the findings of Ms. Kirkham’s treating
practitioners, the Austrian records, and Ms. Kirkham’s subjective report
that her neck symptoms were not worsened after the crash, he could nevertheless
conclude that Ms. Kirkham injured her neck in the crash.

[125]     It does
not follow that because the Austrian hospital took x-rays of Ms. Kirkham’s
neck, it is likely she suffered a neck injury. It goes without saying that
x-rays are a diagnostic tool used to determine whether someone has suffered an
injury. The mere fact x-rays were taken does not indicate an injury did indeed
occur. It is perplexing that Dr. Boyle relied on the fact x-rays were
taken at the Austrian hospital, but not on the hospital records indicating
there was no neck pain and the cervical spine moved freely.

[126]     Dr. Boyle’s
comments that the resolution of Ms. Kirkham’s symptoms was “near complete”
prior to the bike crash and that she experienced a significant change in her
condition afterward are inconsistent with the clinical records and reports of
the treating practitioners. Dr. Boyle appears to have relied on statistics
showing that the majority of patients who develop symptoms following a whiplash
will make a full recovery, rather than on Ms. Kirkham’s actual situation.
While Ms. Kirkham’s condition certainly improved between January and May
2011, it cannot be said that her symptoms were nearly resolved before the
crash. Further, it cannot be said that there was a significant change to her
neck and upper back symptoms following the bike crash. In cross-examination, Dr. Boyle
agreed that Ms. Kirkham’s treating practitioners would be in a better
position to state whether there were changes to her condition as a result of
the crash. As already noted, he had access to their records and reports and yet
did not refer to them in explaining the basis for his opinions.

[127]     Dr. Boyle
claimed that his assumption about Ms. Kirkham’s condition before the bike
crash was based on the history as relayed to him by her. Defence counsel
submits that Dr. Boyle was entitled to rely on that history and cannot be
blamed if that history is inconsistent with the clinical records. However, Dr. Boyle
acknowledged that he did not ask Ms. Kirkham very much about the
progression of her symptoms. He appeared to assume that Ms. Kirkham’s
recovery was near complete from what he was told about her attempts to return
to training and competition between January and May 2011, instead of
considering the evidence of her actual progression of symptoms over time.

[128]     Dr. Boyle’s
failure to consider Ms. Kirkham’s symptoms before and after the bike
crash, as noted by her treating practitioners, particularly given his admission
that those practitioners would be in a better position to state whether there
were changes in her condition following the bike crash, is, in my view, so
fundamental that it calls into question the reliability of Dr. Boyle’s
evidence generally. For these reasons, where there are conflicts in the expert
evidence, I prefer the evidence of Dr. Finlayson, Dr. Lloyd-Smith,
and Dr. Gerrard over the evidence of Dr. Boyle.

MS. KIRKHAM’S CREDIBILITY

[129]     The
defendant submits that Ms. Kirkham has overstated her symptoms,
particularly in the time period leading up to the bike crash, and that her
evidence that she had no change to her neck pain pattern or intensity following
the bike crash and that her concussion did not contribute to her decision to
take the leave of absence should not be believed.

[130]     The
factors to be considered when assessing credibility were summarized in Bradshaw
v. Stenner, 2010 BCSC 1398, at para.186, aff’d 2012 BCCA 296. They include
the firmness of the witness’s memory, the ability of the witness to resist the
influence of interest in modifying her recollection, whether the witness’s
evidence harmonizes with independent evidence that has been accepted, whether
the witness changes her evidence during direct examination and
cross-examination (or between examination for discovery and trial) or is
otherwise inconsistent in her recollections, whether the witness’s evidence
seems generally unreasonable, impossible, or unlikely, and the witness’s demeanor.
Fundamentally, the question is whether the witness’s evidence is consistent
with the probabilities affecting the case as a whole.

[131]     As Ms. Kirkham’s
case involves subjective complaints of pain, it is particularly important to
exercise caution and examine her evidence carefully: Price v. Kostryba (1982),
70 B.C.L.R. 397 (S.C.). If her account is not convincing, then the hypothesis
upon which her medical evidence rests will be undermined: Samuel v. Chrysler
Credit Canada Ltd., 2007 BCCA 431, at paras. 15, 43-44. Having said
that, this is not a case that is entirely dependent on subjective complaints. Dr. Lloyd-Smith,
Dr. Gerrard, and Dr. Finlayson all found objective symptoms including
muscle spasm and taut bands.

[132]     The
defendant submits that Ms. Kirkham’s evidence of the progression of her
symptoms, particularly just prior to the Austrian race, is inconsistent with
her evidence about her ability to train in the weeks prior to that race and her
decision to return to competition at that time. The defendant submits this is
similar to the claim in Sandhar v. Rolston, 2012 BCSC 495, where the
plaintiff continued to suffer from shoulder pain and yet decided to undertake
three days of snow shoveling. In Sandhar, Mr. Justice Affleck found
it impossible to reconcile a decision to shovel snow over three days for
several hours each day with the presence of significant shoulder pain.

[133]     In my
view, the decisions Ms. Kirkham made with respect to the resumption of her
training and attempts at competition bear no similarity to the plaintiff’s
decision in Sandhar to shovel snow. The evidence clearly
established that Ms. Kirkham is extremely focused, goal-oriented,
determined, and competitive. Triathlon was her passion. She changed the way she
trained in order to minimize the pain (such as cycling indoors initially,
changing her bike setup, modifying her swimming by not doing flip turns, etc.).
She was optimistic that she would get better. She had always recovered from
injuries before and assumed she would recover again. She was determined to
minimize her deconditioning so that when the pain resolved she would be ready
to go. She was prepared to train through pain, and she did so. She cannot be
faulted for having taken this approach. The defence submission in this regard
places her in an obvious “catch 22”. In trying valiantly to return to her
pre-accident lifestyle, she is said to have been exaggerating the effects of
her injuries; however, if she failed to try to return to her pre-accident
lifestyle, she likely would have been criticized for the same.

[134]     The
defendant submits that Ms. Kirkham was impeached on some key points in her
evidence. At most, the defendant has identified some minor differences in what Ms. Kirkham
said about her condition at various times and in very different circumstances.
Some of the alleged inconsistencies arise from statements made by Ms. Kirkham
on her website and Twitter feed. In Diack v. Bardsley (1983), 46
B.C.L.R. 240 (S.C.), at para. 30, aff’d (1984), 31 C.C.L.T. 308 (C.A.),
McEachern C.J.S.C. said the “usefulness [of minor variations between a
witness’s evidence at trial and on discovery] is limited because witnesses
seldom speak with much precision at discovery …”. The same can be said, but
with more force, about the precision and fullness with which people speak on
social media, particularly on Twitter where messages may not exceed 140
characters in length. Ms. Kirkham explained that she often tweeted
positive messages as this was one way of trying to keep up good relations with
her sponsors. Also, the fact that she did so is consistent with Ms. Kirkham’s
natural tendencies. She is a positive individual who was determined to recover
from her injuries, and in these circumstances it is not at all surprising that
she would have taken to social media to report, with enthusiasm, a particularly
good day.

[135]     The
defendant says that Ms. Kirkham claimed, in her evidence in chief, to have
been in constant pain from January to March 2011, getting only some relief from
her treatments, but that her own symptom diary establishes that she had some
pain-free days. First, many of Ms. Kirkham’s witnesses, particularly Mr. Stephens,
Dr. Gerrard, and Mr. Carlsson, corroborated her evidence of
significant disability during the first three or so months following the car
accident. Further, when her symptom diary is reviewed as a whole, it supports
the plaintiff’s evidence. While she did have some good days, they were often
followed by particularly bad days. In my view, the symptom diary corroborates Ms. Kirkham’s
evidence of her determination to persevere in the face of significant pain.

[136]     The
defendant also criticizes Ms. Kirkham for having written on her website
that she did not participate in triathlons in June and July 2011 due to both
her concussion and her neck injury, and yet on Twitter and in her evidence at
trial she testified that she could not train or race following the bike crash
due to her concussion. However, when Ms. Kirkham’s evidence is considered
as a whole, there is no inconsistency. At trial, she acknowledged that she
could not train following the bike crash because of her concussion symptoms,
but she also said that her neck symptoms continued to hinder her ability to
train and race.

[137]    
The defendant submits that Ms. Kirkham was impeached when she
testified at trial that a sprint triathlon she did in the summer of 2012 was
difficult and not enjoyable, yet she tweeted on June 11, 2012, that she
“Love[d] being on the bike again”. Ms. Kirkham’s evidence at trial was
that in July 2012 she competed in this sprint triathlon, which is about
one-quarter of the distance of a half-Ironman race. She said she had some good
training sessions in June and on that basis decided to try this race in July.
She said the race was not enjoyable. Her pace times for all three segments were
similar to what she had achieved in 2010 competing in half-Ironman races. As
she put it, she was doing “one-quarter of the distance but at the same speed,
which was pretty humbling”. She also said she had neck pain during the race.
The tweet which is said to be inconsistent with this evidence is dated June 11,
2012, some weeks before the sprint triathlon, and reads:

After all the drama, ended up
being a good workout!  3 hrs with 4X15 min tempo with ascending avg. W. Love
being on the bike again!

[138]     The tweet,
on its face, does not refer to a race but rather a bike workout. It appears to
indicate she had a good day of training on June 11, 2012. It is entirely
consistent with her evidence at trial that she had some good training sessions
in June. It is not at all inconsistent with her evidence of pain during a race
several weeks later, her performance at which provided her with disappointing
evidence of her lack of progress.

[139]     Ms. Kirkham’s
evidence about her pre-accident lifestyle, the impact of the car accident on
that lifestyle, and her efforts to return to her pre-accident condition was
corroborated by several other witnesses, including her treating practitioners, Mr. Stephens,
Mr. Carlsson, Dr. Campbell, Ms. Schneeberg, Mr. Johnson,
and Ms. Wilkie. The defence submitted that the evidence of Mr. Stephens,
Mr. Carlsson, Dr. Campbell, Ms. Schneeberg, Mr. Johnson,
and Ms. Wilkie ought to be given little weight because they are all
affected by natural human bias owing to their familiarity with and varying
degrees of affection for Ms. Kirkham. However, this too places Ms. Kirkham
in a “catch 22” position. The people in a position to comment on the impact of
the accident on Ms. Kirkham’s life are the people she shares her life
with. Had she not called any such people as witnesses, the court would likely
have been asked to draw an adverse inference from her failure to do so. I was
impressed by all of the witnesses called by Ms. Kirkham. They were all
careful and precise in giving their evidence. None was shown to be inaccurate.
I accept their evidence.

[140]     While Ms. Kirkham
may not have remembered precisely how she was feeling each day over the last three
and one-half years, this is to be expected particularly where, as here, she has
not enjoyed steady improvement. Rather, as described by Mr. Carlsson, her
progress is better characterized as one step forward, two steps back, two steps
forward, one step back, or as described by Mr. Stephens as progressing in
waves, or as described by Ms. Kirkham as a series of peaks and valleys. Ms. Kirkham’s
evidence was largely consistent with the statements she made on her Twitter
account, blog, and website and the statements attributed to her in the clinical
records of her treating practitioners. Her efforts to resume training and try
to compete notwithstanding continuing pain are consistent with her incredibly
driven personality. She was forthright and frankly described the efforts she
made to return to her pre-accident lifestyle. Her evidence is consistent with
the probabilities affecting the case as a whole. In short, I found Ms. Kirkham
to be a very credible witness and I accept her evidence.

ANALYSIS

Causation

[141]     Ms. Kirkham
must establish on a balance of probabilities that the defendant’s negligence
was both a factual and legal cause of her injuries. In a case such as this,
where there are multiple potential causes of injury, the court must also
consider whether her injuries are divisible or indivisible.

[142]     The
general test for causation in fact, established in Athey v. Leonati, [1996]
3 S.C.R. 458, at paras. 13-17, is the “but for” test: “but for” the
defendant’s negligence, would the plaintiff’s injuries have occurred? Cause in
fact need not be determined by scientific precision and is best answered with
ordinary common sense: Athey, at para. 16.

[143]     The
plaintiff need not establish that the defendant’s negligence was the sole cause
of the injury. If other potential causes exist, such as the bike crash in this
case, the plaintiff will still establish cause in fact if she can prove a
substantial connection between the injury and the defendant’s conduct, beyond
the de minimus range: Farrant v. Laktin, 2011 BCCA 336, at para. 11.

[144]     The
characterization of damage as divisible or indivisible is necessary to ensure
that the defendant is not held liable for injuries not caused by his or her
negligence: Athey, at paras. 24-25. If an injury is indivisible,
subject to contributory negligence and subject to the plaintiff also
establishing legal causation, the defendant is liable to the plaintiff for all
damages attributable to that injury regardless of the contribution of other
causes: Athey, at paras. 17-20. Indivisible injuries are
those that cannot be separated or have liability attributed to the constituent
causes whereas divisible injuries are those capable of being separated out and
having their damages assessed independently: Bradley v. Groves, 2010
BCCA 361, at para. 20. Whether damage is divisible or indivisible is a
question of fact: B.P.B. v. M.M.B., 2009 BCCA 365, at para. 74.

[145]     In order
to establish legal causation, the plaintiff must show that the type or kind of
injury she suffered was reasonably foreseeable or, in other words, not too
remote from the factual cause: T.W.N.A. v. Canada (Ministry of Indian
Affairs), 2003 BCCA 670, at para. 17; Hussack v. Chilliwack
School District No. 33, 2011 BCCA 258, at para 54.

[146]     The chain
of causation will be “broken” where an intervening event, rather than the
defendant’s conduct, is considered the proximate or legal cause of the
subsequent injury. This principle, known as novus actus interveniens,
recognizes that defendants should not be held liable for objectively unforeseen
consequences of their actions: Hussack, at para. 87; Yoshikawa
v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.), at para. 21.

[147]     The
question of whether an intervening event breaks the chain of causation is a
question of fact: Hussack, at para. 88.

[148]    
Where the intervening event consists of conduct of the plaintiff, the
question of whether it breaks the chain of causation depends upon whether the
plaintiff acted unreasonably. As stated by Madam Justice Bennett in Hussack,
at para. 82:

In essence, the decisions say
that if an injured party acts unreasonably and causes him or herself further
injury, the tortfeasor is not responsible for injuries suffered as a result of
the second injury.

Assessment of damages

[149]     Once
causation in fact and law has been established, the analysis shifts to the
rules of damages which determine the quantum of the defendant’s liability. The
fundamental principle in assessing tort damages is that the quantum should be
that which is required to place the plaintiff in his or her original position,
i.e. the position he or she would have been in absent the defendant’s
negligence: Athey, at para. 32. The defendant need not put
the plaintiff in a better position than his or her original position and should
not compensate the plaintiff for any damages he or she would have suffered
anyway: Blackwater v. Plint, 2005 SCC 58, at para. 78. The analysis
requires a determination of the plaintiff’s position after the negligence and
an assessment of what the plaintiff’s original position would have been, and it
is the difference between these positions that represents the quantum of the
defendant’s liability: Athey, at para. 32.

[150]     In
determining the plaintiff’s original position, it may be necessary to consider
any debilitating effects of a manifest pre-existing condition or to take into
account a measurable risk that a pre-existing condition would have
detrimentally affected the plaintiff in the future regardless of the
defendant’s negligence. This is the crumbling skull rule, and results in the
damages award being reduced to reflect circumstances inherent in the plaintiff’s
pre-accident condition: Athey, at para. 35.

[151]     Unrelated
intervening events may be taken into account in the same way as pre-existing
conditions. If an intervening event would have affected the plaintiff’s
original position adversely irrespective of the defendant’s negligence, it may
be appropriate to reduce the quantum of the defendant’s liability accordingly: Athey,
at paras. 31-32; T.W.N.A., at para. 36.

Findings of fact regarding the plaintiff’s injuries

[152]     Applying
the principles summarized above, I must determine:

1.       what injuries were
suffered by Ms. Kirkham as a result of the car accident and whether any of
them were also caused or exacerbated by the bike crash;

2.       if any of the injuries
were caused by both the car accident and the bike crash, whether the bike crash
amounts to a novus actus interveniens, breaking the chain of causation;
and,

3.       whether the injuries
suffered by Ms. Kirkham in the bike crash have affected her in any event
such that her damage awards should be reduced.

What injuries were suffered by Ms. Kirkham
as a result of the car accident? Were any also caused or exacerbated by the
bike crash?

[153]     It is not
disputed that Ms. Kirkham suffered soft tissue injuries to her neck,
shoulders, and upper back as a result of the car accident.

[154]     Ms. Kirkham
submits that she has also developed myofascial pain syndrome, cervical facet
arthropathy, chronic pain syndrome, and left hip girdle pain. She submits that
these conditions continue to affect her more than three years after the
accident, have forced her to give up her career as a professional triathlete,
and have delayed her PhD studies by a year.

[155]     The
defendant submits that while the soft tissue injuries initially affected Ms. Kirkham’s
studies and her training and competition as a triathlete, her symptoms and
function improved over the four and one-half months between the car accident
and the bike crash. The defendant also submits that had it not been for the
bike crash, her symptoms would have resolved and her function would have
returned within six to nine months following the car accident. The defendant
does not appear to take serious issue with the diagnoses of myofascial pain
syndrome, chronic pain syndrome, and left hip girdle pain, but, as already
noted, submits that Ms. Kirkham’s continuing symptoms are attributable to
the bike crash. The defendant disputes the diagnosis of cervical facet
arthropathy.

[156]     The
medical evidence clearly supports a finding that Ms. Kirkham suffers from
myofascial pain syndrome. Drs. Lloyd-Smith, Gerrard, and Boyle all agreed that
she suffered soft tissue or myofascial strain to her neck and upper back areas.
Dr. Finlayson and Dr. Lloyd-Smith are both of the view that she now
suffers from myofascial pain syndrome as a result. Dr. Finlayson is also
of the view that she suffers from chronic pain syndrome as a result. There is
no contrary evidence. I accept the evidence of Dr. Lloyd-Smith and Dr. Finlayson,
and find that Ms. Kirkham developed and continues to suffer from
myofascial pain syndrome and chronic pain syndrome.

[157]     Dr. Finlayson
is also of the view that Ms. Kirkham suffers from cervical facet
arthropathy. Dr. Boyle disagreed with this diagnosis. As already
discussed, Dr. Boyle and Dr. Finlayson appeared to be using the same
term, cervical facet arthropathy, to refer to different conditions. Little
turns on the name given to Ms. Kirkham’s condition as the effect on her is
the same. I find that she developed and continues to suffer from what Dr. Finlayson
described as cervical facet arthropathy.

[158]     Dr. Finlayson
is also of the view that Ms. Kirkham suffers from left hip girdle pain.
While Dr. Boyle said the “etiology of her [hip] complaints is unclear”, he
did not express the view that Ms. Kirkham does not have hip pain. He
disagreed with Dr. Finlayson’s opinion that the hip pain was a consequence
of deconditioning due to Ms. Kirkham’s reduced activity level following
the car accident. I will address the cause of the deconditioning later in these
reasons. For now, on the basis of Ms. Kirkham’s and Dr. Finlayson’s
evidence, I find that Ms. Kirkham is suffering from left hip girdle pain,
and, on the basis of Dr. Finlayson’s evidence, that it is caused by
deconditioning.

[159]     The next
question is whether Ms. Kirkham’s myofascial pain syndrome, chronic pain
syndrome, cervical facet arthropathy, and left hip girdle pain were caused by
the car accident, the bike crash, or both.

[160]     As already
stated, the defendant submits that but for the bike crash, Ms. Kirkham’s
symptoms would have resolved within six to nine months following the car
accident and any continuing symptoms and disability she suffers are
attributable solely to the bike crash. The defence theory is based on Dr. Boyle’s
opinion that Ms. Kirkham was on a path of recovery by mid May 2011, her
recovery was “near complete” by then, and her condition significantly worsened
after the bike crash.

[161]     In my
view, it is clear from the evidence that Ms. Kirkham’s recovery was not
“near complete” by May 2011, and she was not on a continuing path of recovery
at the time of the bike crash.

[162]     First, as
already noted, Dr. Finlayson, Dr. Gerrard and Dr. Lloyd-Smith
have contrary opinions and, for the reasons discussed, I prefer their evidence
over that of Dr. Boyle.

[163]     Second, Ms. Kirkham’s
evidence, as well as the evidence of Dr. Gerrard and Mr. Carlsson,
establishes that while Ms. Kirkham’s condition did improve in the first
three months following the accident, it then plateaued, with continuing peaks
and valleys. The results of the Neck Disability and Oswestry indices
administered by Dr. Gerrard show a marked improvement, particularly in her
neck disability, between January and March 2011, but followed by a plateau with
more moderate peaks and valleys. When Ms. Kirkham saw Ms. Lamy for
the first time in late April 2011 she considered herself 50% improved. She went
from no training immediately following the accident to as much as 18 hours per
week by early May 2011. However, her training was still nowhere near where she
had been before the accident in terms of intensity, consistency, and technique.

[164]     Third, Ms. Kirkham’s
evidence, as well as the evidence of Ms. Lamy, Dr. Lloyd-Smith, and Dr. Gerrard,
establishes that Ms. Kirkham was continuing to suffer from significant
symptoms at the time of the bike crash. On April 26, 2011, Ms. Lamy noted
upper facet joint dysfunction of the upper cervical region as well as the
mid/lower cervical area with right shoulder and arm discomfort and some neural
tension. On May 5, 2011, Dr. Lloyd-Smith diagnosed myofascial pain
syndrome and on May 6, 2011, he administered trigger point analgesic injections
which provided some relief. On May 6, 2011, Dr. Gerrard was continuing to
note palpatory tenderness in her cervical and thoracic spine. Ms. Kirkham
testified that she was treated by a physiotherapist in Spain before the Spanish
race and her neck was taped before both the Spanish and the Austrian races. She
also testified that her neck pain was very bad during the last hour of the
cycling portion of the Spanish race and that her neck was hurting right from
the beginning of the cycling portion of the Austrian race. I accept all this
evidence.

[165]     The next
question is whether the bike crash exacerbated the effects of the injuries
suffered in the car accident.

[166]     The
defendant submits that from the speed Ms. Kirkham was traveling and the
fact that she did not have more serious injuries to her body, it is reasonable
to infer that her helmet (and by extension, her head) absorbed much of the
impact of the fall. The defendant submits that because Ms. Kirkham had
road rash, her body must have contorted as she felt. From this, the defendant
advances the theory that the blow to Ms. Kirkham’s head and the contortion
of her body would have involved a rapid movement of her head and neck either
backwards and forwards and/or from side to side and this would have caused soft
tissue type strain to her neck, exacerbating her car accident related injuries.
The defendant acknowledges that Ms. Kirkham’s evidence at trial was that
she had no change to her neck pain pattern or intensity as a result of the
crash but suggested I should reject this evidence as defying logic.

[167]      I do not
accept the defence theory. First, it rests upon the assumption that the fall
would have resulted in neck movement consistent with the mechanism of injury
for whiplash, but that is entirely speculative because no one knows how Ms. Kirkham
fell. Although neck pain often co-exists with concussion, it was clear from Dr. Gerrard’s
evidence and Dr. Finlayson’s evidence that this is not invariably so.
Second, I accept Ms. Kirkham’s evidence that she had no change to her neck
pain pattern or intensity following the bike crash. It is consistent with what
she said at the time (as reflected in the Austrian hospital records and the
clinical records of her treating practitioners). It is also consistent with her
objective symptoms following the crash as noted by Dr. Lloyd-Smith and Dr. Gerrard.

[168]     The
defendant submits that Ms. Kirkham’s evidence on this point is
inconsistent with Jill Olson’s evidence. Ms. Olson performed an ergonomic
assessment of Ms. Kirkham’s workstation at UBC in August 2011. The
defendant’s written submission states that Ms. Olson testified that,
during that meeting, Ms. Kirkham told her that she experienced an
exacerbation of her car accident related injuries as part of her concussion. In
my view, this overstates Ms. Olson’s evidence. When asked what, if
anything, Ms. Kirkham told her about the injuries she had suffered in the
bike crash, Ms. Olson said she did not have anything in her notes in
quotation marks and so she does not know if Ms. Kirkham said anything specific.
Ms. Olson said she “would have taken some notes suggesting that she
sustained a concussion and her symptoms had been exacerbated”, but she
acknowledged that she spent very little time discussing the bike crash with Ms. Kirkham,
as her focus was on Ms. Kirkham’s current needs. Ms. Kirkham
testified that her concussion symptoms exacerbated the problems she was having
with her computer work for a time. She also testified that she had to
significantly decrease her training again as a result of her concussion
symptoms. Any or all of that could have caused Ms. Olson to note that “her
symptoms have been exacerbated”. Given the very short time they discussed the
matter, the fact that Ms. Olson made a point of saying that she does not
know if Ms. Kirkham said anything specific, and the vagueness of her note
about the symptoms having been exacerbated, I do not consider Ms. Olson’s
evidence to conflict with Ms. Kirkham’s.

[169]     Finally,
given the expert evidence that I have accepted, a finding that Ms. Kirkham
did not significantly aggravate her neck injury in the bike crash cannot be
said to defy logic. Dr. Lloyd-Smith, Dr. Gerrard, and Dr. Finlayson
all expressed the view that the bike crash did not significantly contribute to Ms. Kirkham’s
ongoing neck, upper back, and shoulder pain. Dr. Boyle disagreed with that
view, but for the reasons already expressed, I prefer the evidence of Dr. Lloyd-Smith,
Dr. Gerrard, and Dr. Finlayson over the evidence of Dr. Boyle.

[170]     I
do not accept the submission that, but for the bike crash in Austria, Ms. Kirkham
would have made a full recovery from the injuries she suffered in the car
accident within six to nine months. It is clear from the above summary that
this theory is not in accordance with the preponderance of the evidence, which
establishes that Ms. Kirkham continued to suffer the debilitating impacts
of the car accident before, at the time of, and after the Austrian bike crash.

[171]     For the
above reasons, I find that the bike crash did not exacerbate Ms. Kirkham’s
neck and upper back injuries and did not contribute to her myofascial pain
syndrome, chronic pain syndrome, or cervical facet arthropathy. I find that Ms. Kirkham’s
myofascial pain syndrome, chronic pain syndrome and cervical facet arthropathy
were caused by the car accident.

[172]     I have
found that Ms. Kirkham’s left hip girdle pain, which only became a
material issue for her in the fall of 2012, was caused by deconditioning. The
evidence clearly established that Ms. Kirkham suffered a concussion in the
bike crash and that she significantly reduced her training for at least three
months following the bike crash. Given the reduction in her training over the
summer of 2011 due to the concussion, the only reasonable inference is that the
concussion contributed to the deconditioning. For these reasons I find that the
left hip girdle pain is an indivisible injury caused by both the car accident
and the bike crash.

Did the bike crash break the chain of causation?

[173]     Counsel
for the defendant submits that Ms. Kirkham claims the bike crash in
Austria would not have occurred but for the injuries she suffered in the car
accident. Counsel for the defendant then responds that the bike crash was a
non-tortious intervening event sufficient to break the causal chain between the
car accident and Ms. Kirkham’s subsequent claimed damage.

[174]     In my
view, this submission mischaracterizes Ms. Kirkham’s position with respect
to the bike crash. She is not asserting that the defendant is liable for the
injuries she suffered in the bike crash, such as the concussion and abrasions.
Further, and in any event, it cannot be said that Ms. Kirkham acted
unreasonably in participating in the Austrian race. Her decision to do so was
supported by her treating practitioners and her coach. None of the
practitioners who testified indicated they had any concerns regarding her
safety in attempting the race. For these reasons, the defence of novus actus
interveniens does not apply.

Did the injuries suffered by Ms. Kirkham in
the bike crash affect her in any event such that her damage awards should be
reduced?

[175]     For the
reasons already set out, I have found that the bike crash did not exacerbate Ms. Kirkham’s
injuries. However, the concussion she suffered in the bike crash did contribute
to the deconditioning that in turn led to the left hip girdle pain.

[176]     The
defendant submitted that Ms. Kirkham’s concussion also contributed to her
decision to take a leave of absence from her PhD studies, and this should be
reflected in any award for loss of income earning capacity.

[177]     Ms. Kirkham
testified that in the summer of 2011 she was not concerned about the concussion
because the symptoms were resolving as expected. Rather, she was distressed by
the fact that she was continuing to experience neck pain, and this interfered
with her ability to work on the computer. The decision to take the leave of
absence was not made until October 2011 and, by that time, according to Ms. Kirkham,
her concussion symptoms had resolved. The stress that Ms. Kirkham was
feeling in September and October 2011, related in part to the time she was
spending attending the many rehabilitation sessions for her soft tissue
injuries.

[178]     Dr. Lloyd-Smith
testified that the concussion was not an issue in October 2011 when Ms. Kirkham
decided to take the leave. He recommended the leave because he thought Ms. Kirkham
needed to minimize her stress and reduce her computer use which was interfering
with the rehabilitation of her neck injury.

[179]     In my
view, there is no real and substantial possibility that Ms. Kirkham would
have taken a leave of absence in any event as a result of the concussion. Based
on the totality of the evidence, I find on the balance of probabilities that
the concussion did not contribute to Ms. Kirkham’s leave of absence from
her PhD studies.

[180]     The
defendant submitted that Ms. Kirkham’s concussion also contributed to her
decision to cancel triathlons in the summer and fall of 2011, and this should
be reflected in any award for loss of income earning capacity. Ms. Kirkham
acknowledged that as a result of the concussion symptoms over the summer of
2011, not only was she unable to compete in triathlons, she was not even able
to train. She also acknowledged that this hiatus from her training, together
with the pain she felt during the cycling portion of the Austrian race, forced
her to accept that she was not going to qualify for the 2011 World Championship
and so she decided there was no point in continuing to push through the pain.
In other words, she concluded that she had lost the 2011 season and so eased
back into training more gradually than she otherwise would have done. The only
reasonable inference from this evidence is that the concussion caused Ms. Kirkham
to cancel the races over the summer of 2011 and contributed to her decision to
cancel the race she had planned for the fall of 2011.

[181]     I will
address the contribution of the concussion to Ms. Kirkham’s left hip
girdle pain and to her decision to stop competing over the balance of 2011 when
I address the relevant heads of damage.

Summary

[182]     In
summary, and having taken into account all the evidence, I make the following
findings:

·      
Ms. Kirkham suffered soft tissue injuries to her neck,
shoulders and upper back as a result of the car accident.

·      
Those injuries have resulted in myofascial pain syndrome,
cervical facet arthropathy, and chronic pain syndrome, all of which continue to
affect Ms. Kirkham.

·      
Ms. Kirkham suffered a concussion and abrasions in the bike
crash which are divisible injuries for which the defendant is not liable.

·      
Ms. Kirkham did not exacerbate or aggravate her soft tissue
injuries in the bike crash and the bike crash did not contribute to Ms. Kirkham’s
myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.

·      
Ms. Kirkham’s soft tissue injuries and the concussion she
suffered in the bike crash both resulted in deconditioning that, in turn,
caused Ms. Kirkham’s left hip girdle pain, which is an indivisible injury.

·      
Ms. Kirkham took a leave of absence that delayed the
completion of her PhD studies by a year. The leave was required for Ms. Kirkham
to focus on rehabilitation of the injuries caused by the car accident. The
concussion did not contribute to Ms. Kirkham’s leave of absence from her
PhD studies.

·      
As a result of the concussion, Ms. Kirkham did not compete
in any triathlons during the summer of 2011. The concussion and the soft tissue
injuries both contributed to her decision not to compete in any triathlons over
the rest of 2011.

Damages

Non-pecuniary damages

[183]     Non-pecuniary
damages are intended to compensate for pain, suffering, loss of enjoyment of
life, and loss of amenities. In Stapley v. Hejslet, 2006 BCCA 34, at para. 46,
leave to appeal ref’d [2006] SCCA No. 100, the Court of Appeal set out a non-exhaustive
list of factors to be considered by the court in assessing non-pecuniary
damages including the age of the plaintiff, the nature of the injury, the
severity and duration of pain, the extent of disability and impairment of
physical and mental abilities, emotional suffering, impairment of family and
other relationships, and loss of lifestyle.

[184]     The
injuries Ms. Kirkham suffered in the car accident have had a very
significant impact on all aspects of her life. Based on Ms. Kirkham’s
evidence and the evidence of her treating practitioners, I find that the pain
in her neck and upper back areas was initially very intense, affecting her
virtually every day, that it then improved by about 50% by late April 2011, and
then plateaued with more modest peaks and valleys until the fall of 2012, when
she gave up her high level training. While not pursuing her studies, Ms. Kirkham
was able, particularly in 2012, to return to an intense level of training, but
could not sustain it once she returned to school in the fall of 2012. The pain
continues to be exacerbated by activities that require prolonged static
postures, such as computer work and bike racing.

[185]     Since
giving up her high level training in the fall of 2012, Ms. Kirkham’s pain
has become manageable as long as she restricts her computer work to a normal
workweek. She suffers flare-ups of pain when she has to do more. She also
continues to have pain if working away from her office workstation, engaging in
lifting, and when running.

[186]     In
addition to the pain, Ms. Kirkham was limited in her ability to perform
household chores and grocery shopping and had to call upon Mr. Stephens
for many of those tasks. She has been able to return to performing some of
these daily activities, although any kind of lifting still causes her pain.

[187]     Ms. Kirkham’s
injuries have affected her personal relationships with her husband and her
friends, as she can no longer engage in many of the physical activities they
choose to engage in. Her social life is entirely different than it was before
the accident.

[188]     The
injuries also interfered with Ms. Kirkham’s studies. She had to put her
education on hold for a year. The work has been made more challenging due to
the pain caused by the computer work. Her injuries led to her
uncharacteristically poor performance during the second term of her PhD, which
devastated her. Although she has managed to put her academic career back on
track, she has done so at the cost of her high level athletics.

[189]     The
biggest impact on Ms. Kirkham’s life has been the loss of her ability to
compete as an elite athlete. While many people might see an upside in the
switch from intensely demanding, competitive physical activities like
triathlon, running races, and time trials, to recreational and restorative
activities like bike riding, yoga, and Pilates, that is not how Ms. Kirkham
sees it. As she put it, neither she nor Mr. Stephens was interested in
engaging in activities for fun. They both wanted to work at being the best at
something. That dream has been taken from her. She has been devastated by and
continues to struggle emotionally with the loss of her identity as an elite
athlete.

[190]     Dr. Finlayson
and Mr. Campbell both expressed the view that while there is potential for
Ms. Kirkham to continue to improve and to engage in recreational sport
with continued physiotherapy and other care, she will never return to
competitive triathlon. Dr. Gerrard’s prognosis is similar. In his view, Ms. Kirkham
will sustain her current level of disability long-term. Dr. Lloyd-Smith is
slightly more optimistic. In his view, it is possible, but unlikely given the
delay, that Ms. Kirkham could return to elite level athletics once she
completes her PhD. I accept all this evidence and find that Ms. Kirkham
will continue to improve and will not be limited in her ability to participate
in recreational sport, but she is very unlikely to return to elite training and
competition.

[191]     Ms. Kirkham
submits that an award of non-pecuniary damages of $140,000 is appropriate. She
cites the following cases in support:

(a) Clark v. Kouba,
2012 BCSC 1607, aff’d 2014 BCCA 50 ($85,000);

(b) Isert
v. Santos (1997), 70 A.C.W.S. (3d) 470 (B.C.S.C.) ($60,000), rev’d 1999
BCCA 42 ($40,000);

(c) Bonham v. Smith
(1998), 50 B.C.L.R. (3d) 350 (S.C.) ($130,000); and

(d) Smith v. Fremlin,
2013 BCSC 800 ($90,000).

[192]     On the
basis of Dr. Boyle’s opinion that, but for the bike crash, Ms. Kirkham
would have recovered within six to nine months following the car accident, the
defendant submits that $20,000 to $30,000 is an appropriate award for non-pecuniary
damages. I have not accepted that opinion. In the alternative, the defendant
submits that even if the bike crash is not found to have caused or contributed
to the plaintiff’s continuing symptoms, an appropriate award for non-pecuniary
damages is in the range of $40,000 to $55,000. The defendant cites the
following cases in support of that alternative submission:

(a) Morrison v. Gauthier, 2009
BCSC 1271 ($55,000);

(b) Connolly v. Cowie, 2012
BCSC 242 ($50,000); and

(c) Haughain v. Kaufman,
2006 BCSC 911 ($40,000).

[193]     Awards of
non-pecuniary damages in other cases provide a useful guide but the specific
circumstances of each individual plaintiff must be considered as any award of
damages is to be based on the adverse impact of the particular injuries on the
particular plaintiff. In my view, some of the authorities submitted by Ms. Kirkham,
particularly Bonham, are a better guide when assessing Ms. Kirkham’s
non-pecuniary damages than those submitted by the defence. Although the
plaintiffs in the cases relied upon by the defendant were all athletes, it does
not appear that any were aspiring or likely to become professional athletes.

[194]     In Bonham,
the plaintiff had been one of Australia’s leading professional triathletes
prior to the accident that gave rise to the case. Following the accident, she
continued to experience success in triathlons, placing first at least four
times in Australian national and international competitions. However, the
injuries she suffered in the accident prevented her from being able to achieve
the highest level of success in her sport. I acknowledge that Ms. Bonham
was not an aspiring professional athlete at the time of her accident – she had
already arrived. However, she continued to succeed in her sport even after her
accident. While Ms. Kirkham was still aspiring, she was on the very verge
of breaking through. Unlike Ms. Bonham, it appears likely that Ms. Kirkham’s
triathlon career is over.

[195]     Having regard to the case law cited and the Stapley factors, I assess Ms. Kirkham’s non-pecuniary
damages at $130,000, but reduced by $10,000 to reflect the possibility that the
deconditioning associated with the concussion would have caused her hip pain in
any event.

Loss of income earning capacity

[196]     Both past
and future income loss is properly considered on the basis of loss of earning
capacity: Ibbitson v. Cooper, 2012 BCCA 249, at para. 19.

[197]     The burden
of proof for actual past events is a balance of probabilities. However, an
assessment of loss of both past and future earning capacity also involves
consideration of hypothetical events. The plaintiff is not required to prove
these hypothetical events on a balance of probabilities; rather, hypothetical
events are given weight according to their relative likelihood. The future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Athey, at para. 27;
Morlan v. Barrett, 2012 BCCA 66, at para. 38.

[198]     An award
for loss of earning capacity, whether past or future, requires the assessment
of damages which considers the overall fairness and reasonableness of the award
taking into account all positive and negative contingencies, not a calculation
according to a mathematical formula: Schenker v. Scott, 2014 BCCA 203,
at para 53.

Loss of Past Earning Capacity

[199]     The value
of a particular plaintiff’s capacity to earn is equivalent to the value of the
earnings that she or he would have, not could have, earned but for the injury
that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141, at para. 30;
M.B. v. British Columbia, 2003 SCC 53, at para. 49.

[200]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover only his or her past net income loss: Rizzolo
v. Brett, 2009 BCSC 732, at para. 72, aff’d 2010 BCCA 398.

[201]     Ms. Kirkham
claims that but for the injuries she sustained in the car accident, she would
have earned income from three sources:

(a)  a grant funded by the
Canadian Institutes of Health Research (“CIHR”);

(b)  income earned as a
teaching assistant; and

(c)  potential prize money from
triathlons.

[202]     Ms. Kirkham
acknowledged that her CIHR grant was not lost. Rather it was simply paused
during her leave of absence, and has now resumed. There is no real and
substantial possibility that she will suffer pecuniary loss as a result.

[203]     Ms. Kirkham
was forced to give up her work as a teaching assistant while on her leave of
absence and, upon returning to school, she reduced the teaching that she would
otherwise have engaged in. Her expert economics evidence established that up to
the time of trial she suffered a net income loss of approximately $6,200 due to
the reduction in her teaching assistant work. I find that she would have earned
that income but for the injuries she sustained in the car accident.

[204]     Ms. Kirkham
seeks approximately $31,000, representing lost triathlon prize money for the
period from the car accident to the trial.

[205]     Ms. Kirkham
estimated the prize money she would have won in each of 2011, 2012, and 2013.
For 2011, she listed each of the races that she had planned to compete in that
year and then compared the actual results of those races with her assessment of
how she would have performed on an average day assuming moderate improvement in
her performance over the prior year. On this basis, she estimated forgone prize
money for 2011 of $12,200. She estimated expenses of $4,166 for entry fees and
travel costs, for a net loss of prize income in 2011 of about $8,000.

[206]     Ms. Kirkham
performed a similar analysis to estimate lost prize money for 2012 and 2013,
but considered the races she would likely have competed in given her PhD
commitments. She included fewer international races because of those
commitments. She estimated net prize money of approximately $10,700 in 2012
($13,700 gross prize money less entry fees and travel costs of just under
$3,000) and $12,700 in 2013 ($14,750 gross prize money less entry fees and
travel costs of just over $2,000).

[207]     Ms. Kirkham
earned $3,000 in prize money from triathlon in 2010, but she acknowledged that
her expenses exceeded $3,000 that year. In her examination for discovery, she
indicated that travel expenses alone would exceed $3,000 a year. She also
testified that fees for the Regional Triathlon Centre were $3,000 per year, and
she did not factor that amount into her analysis. When competing in 2010, she
required performance care from Dr. Gerrard approximately three times per
month. Based on her special damages claim, Dr. Gerrard charges $45 per
session, so performance care would cost approximately $135 per month, or $1,620
per year.

[208]     For the
reasons already discussed, I have found that Ms. Kirkham did not compete
in any triathlons during the summer of 2011 as a result of the concussion, and
the concussion and the soft tissue injuries both contributed to her decision
not to compete in any triathlons over the balance of 2011. Her estimated gross
prize winnings for 2011 included $3,400 for four races in the summer of 2011
and $2,000 for one race in October.

[209]     There is
no doubt Ms. Kirkham won some prize money in 2010. Leaving aside the races
in 2011 that she missed due in whole or in part to the concussion, it is clear
she has not been able to race due to the car accident injuries. On the basis of
those findings, she has established an impairment to her capacity to earn
income from triathlon. However, the question remains as to whether she has
established a real and substantial possibility that this diminished capacity
has resulted in a pecuniary loss.

[210]     Considering
Ms. Kirkham’s performance in 2010, when she was relatively new to the
sport, Mr. Carlsson’s evidence as to her great potential, and Ms. Kirkham’s
evidence of her intentions regarding entering competitions, I find that there
is a real and substantial possibility that Ms. Kirkham would have earned prize
money of up to $12,000 a year in each of 2011, 2012 and 2013. However, in my
view Ms. Kirkham has underestimated the expenses associated with competing
internationally as a triathlete. I find it likely that the annual costs
associated with competing in triathlon would include approximately $800 in
entry fees, at least $3,000 in travel, $3,000 in fees for the Regional
Triathlon Centre, and $1,620 for performance care from Dr. Gerrard. That
does not include anything for clothing, shoes, and bikes, which, in my view,
would likely have been offset by sponsors. On this basis, it is my view that Ms. Kirkham
would have incurred costs of approximately $8,500 per year in order to compete
in triathlon.

[211]     For the
reasons set out above, Ms. Kirkham has established a real and substantial
possibility that the diminishment in her capacity to earn income from triathlon
has resulted in a pecuniary loss. However, once the impact of the concussion is
reflected, I find that at best she would have broken even in 2011. I assess her
diminished capacity to earn income from triathlon for 2012 and 2013 at $3,500
per year for a sum of $7,000.

[212]     The total
loss of past earning capacity for Ms. Kirkham is thus assessed as $13,200,
comprising the loss of teaching income and prize money.

Loss of Future Earning Capacity

[213]     If the
plaintiff has established both an impairment to her earning capacity and a real
and substantial possibility that the impairment will result in a pecuniary
loss, the loss may be quantified on either an earnings approach or a capital
asset approach: Schenker, at para 51; Perren v. Lalari, 2010
BCCA 140, at para 25.

[214]     The earnings approach is generally appropriate where
the loss is more easily measured such as where the plaintiff has some earnings
history or where the court can otherwise reasonably estimate what his/her
likely future earning capacity will be: Perren,  at para 32; Clemas
v. Gabrlik, 2013 BCSC 1412, at para. 170. This approach typically
involves an assessment of the plaintiff’s estimated annual income loss
multiplied by the remaining years of work and then discounted to reflect
current value, or alternatively, awarding the plaintiff’s entire annual income
for a year or two: Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260 (C.A.), at para. 43; Gilbert v. Bottle, 2011
BCSC 1389, at para. 233; Clemas, at para. 170. While there is
a more mathematical component to this approach, the assessment of damages is
still a matter of judgment not mere calculation.

[215]     The
capital asset approach, typically used in cases where the plaintiff has no
clear earnings history, involves consideration of a number of factors such as
whether the plaintiff has been rendered less capable overall of
earning income from all types of employment, is less marketable
or attractive as a potential employee, has lost the ability to
take advantage of all job opportunities that might otherwise have been open,
and is less valuable to herself as a person capable of earning income in a
competitive labour market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.), at para. 8.

[216]     Ms. Kirkham
claims that her future earning capacity has been impaired in two respects.
First, she claims that but for the car accident she would have completed her
PhD a year earlier and, as a result, she has been delayed by a year in
embarking upon her ultimate career as a university professor. Second, she
claims that but for the accident she would have continued to compete and earn
prize money from triathlon for at least another five years.

[217]     The first
aspect of Ms. Kirkham’s claim for future loss of income, that she was
delayed in embarking upon her career as a university professor, is based on the
theory that she will always be behind by a year as a result of the car
accident. Her expert economics evidence calculates this loss to range between
approximately $70,000 (if based on average earnings for female professors at
Canadian universities) and approximately $118,000 (if based on earnings for
male professors at the 75th percentile at American universities). Ms. Kirkham
seeks $112,760.50 as the average of the amount of earnings between male
professors at the 75th percentile at Canadian universities and at American
universities. It was not made clear why Ms. Kirkham considered it
appropriate to base her claim on average male earnings at the 75th percentile,
rather than average female earnings at the 75th percentile.

[218]     I find
that Ms. Kirkham has established that her future earning capacity has been
impaired by delay and that there is a real and substantial possibility that she
will suffer a pecuniary loss as a result. However, for reasons similar to those
expressed by Mr. Justice McEwan in Hillman v. Esaryk, 2014 BCSC
170, at paras. 23-25, I consider her suggested approach to assessing the
value of that loss to be artificial and to inadequately reflect contingencies
associated with her particularly driven and competitive personality.

[219]     The expert
evidence Ms. Kirkham relies upon for quantifying this loss does not appear
to reflect the fact that she intends to engage in at least two and perhaps more
years of postdoctoral study before attempting to obtain a job as a professor.
She testified that this would give her a better chance of securing a
professorship but at the cost of a lower income over the next few years. Also, Ms. Kirkham
demonstrated that she is an unusually ambitious and driven student. There is
every likelihood that she will continue to apply that discipline to her studies
and her profession. She has established that she has an extremely competitive
nature and in my view will make every effort to catch up to her earnings
potential. While she will be somewhat delayed in achieving her full income
potential, I am satisfied that a few years down the road, the difference
between graduating in 2014 and 2015 will be meaningless.

[220]     Although Ms. Kirkham
has no earnings history, I do agree the earnings approach is more useful than
the capital asset approach because Ms. Kirkham’s future career plans are
firm and, given the evidence as to her abilities and dedication, her career
path is likely to unfold as planned. The expert economics evidence indicates
that a starting salary for an assistant professor at a Canadian university is
between approximately $67,000 and $90,000 per year. Given that this is not a matter
of calculation, but rather of assessment, I consider that $70,000 will
adequately compensate Ms. Kirkham for the one year delay in launching her
career.

[221]     Based on
the evidence of Ms. Kirkham and the evidence of Mr. Carlsson, I find
that but for the car accident Ms. Kirkham would have continued to compete
and earn prize money from triathlon for another five years. She has established
a real and substantial possibility that the impairment to her earning capacity
will result in a loss of such prize money. The expert economics evidence she
tendered estimated her future loss at $10,491 per year, which is the average of
Ms. Kirkham’s own estimate of prize money and expenses during the three
years from 2011 to 2013. For the reasons explained above in the section
addressing Ms. Kirkham’s claim for loss of past earning capacity, it is my
view that Ms. Kirkham’s diminished capacity to earn income from triathlon
is more appropriately assessed at $3,500 per year. Applying the actuarial
multiplier of 4,699 as set out in Ms. Kirkham’s expert report, this
amounts to $16,500 for the five years.

[222]     The total
loss of future earning capacity for Ms. Kirkham is thus assessed as
$86,500, comprising the loss associated with the delay in her career and the
loss of prize money.

Cost of future care

[223]     Ms. Kirkham
is entitled to compensation for the cost of future care based on what is
reasonably necessary to restore her to her pre-accident condition insofar as
that is possible. When full restoration cannot be achieved, the court must strive
to assure full compensation through the provision of adequate future care. The
award is to be based on what is reasonably necessary on the medical evidence to
preserve and promote the plaintiff’s mental and physical health: Gignac v.
Rozylo, 2012 BCCA 351, at paras. 29-30. An assessment of damages for
cost of future care is not a precise accounting exercise: Krangle (Guardian
ad litem of) v. Brisco, 2002 SCC 9, at para. 21.

[224]     The test
for assessing an appropriate award for the cost of future care is an objective
one based on the medical evidence. There must be a medical justification and
the claims must be reasonable: Tsalamandris v. McLeod, 2012 BCCA 239, at
paras. 62-63. The costs are justified if they are medically necessary and
likely to be incurred. If the plaintiff has not used the particular service or
item in the past, it may be inappropriate to include its costs in the future
care award: O’Connell v. Yung, 2012 BCCA 57, at paras. 55, 60,
68-70.

[225]     Ms. Kirkham
claims the following as giving rise to costs of future care:

a)   physiotherapy three times
per month for a year;

b)   massage therapy once every
three to four weeks for a year;

c)    chiropractic
treatments once a month for a year after the physiotherapy sessions end;

d)   an
athletic therapist or kinesiologist twice a month for three years while she
completes her studies;

e)   injections for her hip and
knee pain (three treatments);

f)    psychological counseling
for a year;

g)   an ergonomic assessment of
her home-based workstation;

h)   a lifetime of yoga; and

i)     pain relief medications.

[226]     For the
most part, Ms. Kirkham’s claims were supported by her medical evidence. Dr. Boyle
expressed the view that although a course of physiotherapy immediately
following a soft tissue injury is appropriate, Ms. Kirkham no longer
requires formal physiotherapy and is capable of simply exercising on her own.
For the reasons already given, I prefer the medical evidence relied upon by Ms. Kirkham.

[227]     Ms. Kirkham’s
claim for ongoing physiotherapy for a year is supported by Dr. Finlayson, Dr. Lloyd-Smith,
Dr. Gerrard, Ms. Lamy, and Mr. Campbell. On the basis of their
evidence, I find that physiotherapy three times a month for the next year is
reasonably necessary to preserve and promote Ms. Kirkham’s health. Ms. Kirkham’s
brief of special damages contains a list of each item claimed. That list
indicates Ms. Lamy’s fee is $50. At three times a month, that amounts to
$1,800 per year.

[228]     Ms. Kirkham’s
claim for ongoing massage therapy is supported by Dr. Lloyd-Smith and Dr. Gerrard.
On the basis of their evidence, I find that massage therapy once a month for a
year is reasonably necessary to preserve and promote Ms. Kirkham’s health.
Ms. Kirkham’s brief of special damages indicates the cost of massage
therapy at $95 per session. At once a month, that amounts to $1,140 for the
year.

[229]     Ms. Kirkham’s
claim for monthly chiropractic treatments for one year after the physiotherapy
is supported by Dr. Lloyd-Smith and Dr. Gerrard. Although Ms. Kirkham
had regular chiropractic care prior to the car accident, that was performance
care and is different from the rehabilitation care provided by Dr. Gerrard
after the accident. I find that chiropractic care once a month for a year
following the completion of physiotherapy is reasonably necessary. Ms. Kirkham’s
brief of special damages indicates the cost of chiropractic care is $45 per
session. At once a month, that amounts to $540 for a year.

[230]     Ms. Kirkham’s
claim for the services of an athletic therapist, kinesiologist or personal
trainer such as Mr. Campbell is supported by Dr. Finlayson, but only
for a year. Mr. Campbell suggested ongoing treatment for the duration of Ms. Kirkham’s
graduate and postdoctoral work, but it is not clear from his evidence whether
this is in addition to the physiotherapy already addressed above. After
considering all of the evidence, I am satisfied that the services of an
athletic therapist or personal trainer are reasonably necessary, for a year,
particularly if Ms. Kirkham is to have any chance of competing in
triathlon again. Ms. Kirkham’s brief of special damages indicates Mr. Campbell
charges $140 per session. At twice a month, that amounts to $3,360 for a year.

[231]     I am not
satisfied that injections for Ms. Kirkham’s hip and knee pain are
reasonably necessary. She has not yet had such injections. The only medical
evidence suggesting such injections is Dr. Finlayson’s view that
“consideration should be given to” such injections if there is no improvement
in her left hip girdle pain with ongoing rehabilitation. There was no evidence
from Ms. Kirkham that she would undergo such injections. On balance, I am
not satisfied that an award for these injections is justified.

[232]     Ms. Kirkham’s
claim for psychological counseling for a year is supported by Dr. Finlayson.
However, I am not satisfied that Ms. Kirkham is likely to incur the cost.
She saw a sports psychologist three times in 2013 but canceled her last
appointment on the basis that she did not think further sessions were required.

[233]     Ms. Kirkham’s
claim for an ergonomic assessment of her home-based workstation is supported by
Dr. Finlayson. In my view, it also supported by the evidence as a whole,
as it is apparent that Ms. Kirkham’s pain is exacerbated by computer work
and that the modifications to her office workstation have helped. Ms. Kirkham
seeks $1,200 for the ergonomic assessment. In my view, that amount is
justified.

[234]     Ms. Kirkham’s
claim for a lifetime of yoga is not, in my view, supported by the medical
evidence. Dr. Lloyd-Smith expressed the view that Ms. Kirkham should
continue with yoga and/or Pilates sessions to maintain her fitness, strength,
flexibility and balance, but he did not express any view as to the appropriate
duration of yoga. Mr. Campbell’s report does not mention yoga, but he
recommended to Ms. Kirkham in the fall of 2012 that she stop her triathlon
training and restrict her physical activities to physiotherapy, yoga, Pilates,
and strength training. His report simply recommends “some form of ongoing
treatment” for the duration of her graduate and postdoctoral work. On
consideration of all the evidence, I am satisfied that yoga for three years,
while Ms. Kirkham finishes her studies, is justified, at $100 per month.

[235]     Ms. Kirkham’s
claim for pain relief medication is supported by Dr. Lloyd-Smith. Ms. Kirkham
seeks an award of $2,000 for tramadol but without any explanation as to how
that amount was calculated. Ms. Kirkham’s special damages brief indicates
that a 30-day supply of tramadol costs approximately $60. On this basis, I
award $720 for pain relief medication based on the cost of tramadol for a year.

[236]     In
summary, I assess Ms. Kirkham’s cost of future care as follows:

·      
the cost of physiotherapy ($1,800), massage therapy ($1,140), an
athletic therapist ($3,360), and pain medication ($720) for a year, and the
cost of chiropractic care ($540) for the year following the completion of
physiotherapy treatment, which amounts to $7,413 using the future cost of care
multipliers in Ms. Kirkham’s expert economics report,

·      
the cost of an ergonomic assessment at $1,200, and

·      
the cost of yoga at $1,200 per year for three years which amounts
to $3,419 using the future cost of care multiplier,

for a total of $12,032.

Special damages

[237]     Ms. Kirkham
is entitled to recover the reasonable out-of-pocket expenses she incurred as a
result of the car accident. Claims for special damages are subject only to the
standard of reasonableness; however, when expenses are incurred in relation to
treatment aimed at the promotion of a plaintiff’s physical or mental
well-being, evidence of medical justification for the expense is a factor in
determining reasonableness: Redl v. Sellin, 2013 BCSC 581, at para. 55.

[238]     Ms. Kirkham
claims $35,683.91 in special damages. That amount relates primarily to the
costs she incurred for chiropractic care, massage therapy, physiotherapy,
Pilates, and yoga. It also includes costs for medication and equipment such as
a laptop stand and ice packs.

[239]     The
defendant objects to Ms. Kirkham’s special damages claim on two bases.
First, the defendant submits that Ms. Kirkham’s treatment was
self-directed and excessive and did not follow a course set in consultation
with a medical doctor. The defendant points out that Dr. Hall’s
recommendation of physiotherapy and Dr. Shiu’s recommendation of
physiotherapy, massage therapy, and chiropractic care were not established at
trial, other than through Ms. Kirkham’s hearsay. Accordingly, the
defendant submits that on the medical evidence, Ms. Kirkham had not been
recommended such treatments until, at the earliest, her first visit with Dr. Lloyd-Smith
on May 5, 2011. The defendant submits that although Dr. Lloyd-Smith notes
that Ms. Kirkham had instituted physiotherapy, massage therapy and
chiropractic care once or twice a week, his report declined to endorse these
treatments.

[240]     I do not
accept that submission. Dr. Lloyd-Smith recommended continuing
physiotherapy, massage therapy, chiropractic care, medication, trigger point
injections yoga, and Pilates as future care. He was clearly aware that Ms. Kirkham
had been engaging in these treatments since the car accident. While he may not
have specifically said that he recommended she do so from the beginning, he
certainly did not indicate that he disagreed with these therapies. While Dr. Lloyd-Smith
did not see Ms. Kirkham until May 5, 2011, even Dr. Boyle testified
as to the value in physiotherapy for the first six to eight weeks following a
soft tissue injury. Finally, the medical evidence tendered by Ms. Kirkham
as a whole established a consensus for ongoing physiotherapy, massage therapy,
yoga, and Pilates with an eventual resumption of chiropractic care. If all of
these treatments are recommended into the future, it is reasonable to infer
that they were equally recommended in the past.

[241]     In my
view, it is also necessary to keep in mind Ms. Kirkham’s specific
situation. She was an elite athlete who was endeavouring to regain her status.
She cannot be faulted for her efforts in this regard. What is reasonable for Ms. Kirkham
may not be reasonable for a plaintiff who had a more sedentary pre-accident
lifestyle. Considering all the evidence, it is my view that the costs incurred
by Ms. Kirkham meet the standard of reasonableness.

[242]     The
defendant also objects to Ms. Kirkham’s claim for special damages on the
basis that as an elite athlete she received chiropractic treatments from Dr. Gerrard
for performance care before the car accident and would have continued to incur
that cost even if the car accident had not occurred. In my view, the principle
that an expense cannot be recovered if it can be shown that an independent
cause such as pre-existing injury would have necessitated the expense in any
event is inapplicable to Ms. Kirkham’s situation. She was not receiving
chiropractic care for rehabilitation of injuries prior to the car accident. She
was receiving performance care that assisted her in her efforts to become a top
level triathlete. Dr. Gerrard testified that the nature of the care he
provided to Ms. Kirkham after the car accident was different than that
provided beforehand. In my view, disallowing Ms. Kirkham’s claim for the
costs of chiropractic care she incurred after the accident on the basis that
she received performance care before the accident would be akin to reducing a
plaintiff’s special damages claim on the basis that the injuries suffered by
the plaintiff have rendered the plaintiff incapable of participating in
pre-accident activities and thereby have saved the plaintiff the costs
associated with those activities.

[243]     For the
foregoing reasons I find that Ms. Kirkham is entitled to reimbursement for
the special damages she has claimed in the amount of $35,683.91.

CONCLUSION

[244]     In summary, the damages awarded to Ms. Kirkham
are as follows:

[245]    
If the parties are unable to agree on costs, they may speak to that
issue.

“Warren
J.”