IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140708

Docket: M111077

Registry:
Vancouver

Between:

Rosalynd Javier

Plaintiff

And

Richard Hooper

Defendant

– and –

Docket: M113846

Registry:
Vancouver

Between:

Rosalynd Javier

Plaintiff

And

Joyce Deloris
Farren

Defendant

– and –

Docket: M126047

Registry: Vancouver

Between:

Rosalynd Javier

Plaintiff

And

Muhammad Naveed
Waraich and Ayesha Waraich

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
The plaintiff, Rosalynd Javier, claims damages for personal injuries
arising from motor vehicle accidents which occurred April 18, 2009, March 1,
2011 and August 20, 2012. I will refer to these as the “First Accident”, “Second
Accident” and “Third Accident”.

[2]            
The plaintiff commenced three separate actions which were consolidated
and heard together at trial.

[3]            
The First Accident occurred April 18, 2009 when the plaintiff was a
front seat passenger in her Honda Civic motor vehicle when that vehicle was
rear-ended by the defendant Mr. Hooper at the intersection of Fraser Highway
and 64th Avenue in Surrey, BC.

[4]            
The Second Accident occurred on March 1, 2011 when the plaintiff’s
vehicle, after having stopped at the intersection of Fraser Highway and 156
Street in Surrey, was rear-ended by a vehicle driven by the defendant Ms. Farren.

[5]            
The Third Accident occurred August 20, 2012 when the plaintiff was
driving northbound on 148th Street in Surrey. Upon entering the intersection of
Fraser Highway on a green light, her vehicle was struck by a vehicle driven by
the defendant Ms. Waraich which had entered the intersection against a red
light.

[6]            
The defendants in each action admit liability and accordingly what remains
in issue between the parties is the assessment of the plaintiff’s damages.

[7]            
I will first discuss the plaintiff’s background and work history and
then describe the injuries she sustained in each of the three accidents, the
medical evidence lead at trial, my conclusions about the effect those injures
had on the plaintiff and then my assessment of damages under the various heads
of damage for which the plaintiff claims.

The Plaintiff’s Background

[8]            
Ms. Javier, at the time of trial, was a 56-year-old real estate salesperson.

[9]            
She is a slight person in stature, being 4’11” tall and weighing 96
pounds.

[10]        
Ms. Javier was born in the Philippines and came to Canada in 1987 when
she was 29 years old.

[11]        
She currently resides in a townhouse in Surrey with her 82-year-old
mother who she cares for. She comes from a large family: many of her brothers
and sisters reside in the lower mainland area of Vancouver and are successful
business persons or professionals.

[12]        
Ms. Javier was married in the Philippines before she moved to Canada.
She had two children by that marriage. Her eldest was born in 1987 and now
resides in Edmonton. Her youngest son was born in 1995 with Down’s syndrome
and, after developing leukemia, died when he was 12 years of age.

[13]        
As might be expected, Ms. Javier had a difficult time coping with her
young son’s diagnosis and prognosis. He unfortunately required three bone
marrow transplants, none of which succeeded and he was ultimately placed in
palliative care. Ms. Javier spent much time at the hospital attending to him
during these very difficult years.

[14]        
In 2000 she left her husband as a result of his drug addiction problems
and in 2001 commenced working part-time in her sister’s dental office. That job
subsequently became full-time until she had to give it up as a result of her
youngest son’s illness.

[15]        
After her young son passed away she moved to live with her sister to
help her cope with her grieving process.

[16]        
Before the First Accident occurred in April 2009, Ms. Javier testified she
was over her initial grieving for her youngest son’s death, had commenced going
enjoying a more active social life and had developed several relationships with
men. The last relationship she had was with a man from California. They saw one
another one half dozen times a year – either she traveled to California or he
traveled here or they met in Las Vegas. The relationship started in 2009 prior
to the First Accident and ended in 2010.

[17]        
The plaintiff described herself as an active and happy person prior to
the First Accident. She testified that, being single, and having only herself
to rely on financially, she realized she had to build a life and financial
security for herself for the future. This is what led her to a career in real
estate.

[18]        
The plaintiff was involved in one prior motor vehicle accident on
December 17, 2006 when she was a passenger in a pickup truck which was hit near
the front by another truck at an intersection. She testified she injured her
shoulders and neck and had received both physiotherapy and massage therapy
treatments; that she had missed a few days from work and that the injuries had
cleared up after 4 to 6 months. She settled her claim for damages with the defendant
in that case. She testified she was fully recovered at the time of the First Accident.

The Plaintiff’s Work History

[19]        
There can be little doubt Ms. Javier has had a strong work ethic during
her working career. While her family was young she worked at numerous positions
including Regis Pictures, Kentucky Fried Chicken, McDonald’s and at a courier
company. She then took a word processing secretarial course in 1991. She and
her husband owned a successful auto body shop which she managed. In 1995 she
took a medical office assistance course.

[20]        
Between 1998 and 2005 the plaintiff was occupied looking after her two
sons and later in this period attending the hospital during periods her younger
son was hospitalized and receiving treatment. Initially she worked as a dental administrative
assistant at her sister’s dental office but ultimately had to give up work and
go on welfare.

[21]        
In 2005, with the encouragement of her sister-in-law and brother, both
of whom were involved in real estate, she decided to obtain her real estate
license. The plaintiff said she did so as she had no husband and didn’t want to
remain on welfare. She wanted to build assets and become self-sufficient.

[22]        
She completed her licensing examination in January 2006 and commenced
work with HomeLife Benchmark Realty (“HomeLife”) on February 21, 2006. She
remained associated with HomeLife as a commission salesperson until October
2011.

[23]        
By all accounts she did well in her profession. In 2011 she achieved the
distinction of being named a member of the Medallion Club, recognizing her as
being in the top 10% of salespersons for that year.

[24]        
In October 2011 she changed agencies and became associated with Sutton
West Coast Realty (“Sutton”) where she continues to date.

[25]        
She testified she thought that by changing agencies she would become more
exposed to the Vancouver real estate market where houses generally traded at a
higher market price and where, as a result, commissions were generally higher. Further,
the monthly fixed costs for a realtor associated with Sutton were less than at
HomeLife.

[26]        
I will review Ms. Javier’s sales with both HomeLife and Sutton later in this
decision when I consider her claim for lost income.

The First Accident (April 18, 2009)

[27]        
The plaintiff was a passenger in a Honda Civic which was being driven by
her son when it was struck from the rear by a pickup truck when stopped for a
red light at an intersection. The impact was severe enough to push the
plaintiff’s Honda into the vehicle in front of it and to push that vehicle
ahead and into the vehicle in front.

[28]        
Ms. Javier was shaken up, in shock and felt tight in her chest and had
difficulty breathing following the impact. She had pain in the upper part of
her chest and was taken to Langley Hospital by ambulance where she remained for
several hours. Her chest and neck were x-rayed and she was given medication for
her pain and anxiety.

[29]        
Over the next several days she developed pain in the right side of her
neck, in her right and left shoulders and her lower back with pain radiating
into her right leg. She experienced headaches and had difficulty sleeping.

[30]        
She attended her general practitioner, Dr. Lim, who she said advised her
to commence physiotherapy and massage therapy and gave her exercises to do at
home and prescribed medication for pain and anxiety.

[31]        
Ms. Javier took two to three weeks off work and then returned to selling
real estate. She testified she worked through her pain by trying to stay
positive and focused on selling.

[32]        
In 2010 Ms. Javier earned commissions on the sale of 16 properties and moved
out of her sister’s basement suite where she was living and into an apartment. She
said she was still was having headaches, right sided neck and shoulder pain,
upper back pain and buttock pain.

[33]        
Ms. Javier continued to seek physiotherapy and massage therapy on a
regular basis. I will review the periods of time she took such treatment when I
review the evidence of each therapist.

[34]        
 She testified she was also experiencing depression and anxiety which
she said affected her ability to market herself with attendees at the church
she attended and other potential clients. She also experienced decreased libido
and sexual relations with her boyfriend.

[35]        
By January 2011 the plaintiff said she was feeling 70 per cent recovered
from the injuries sustained in the First Accident.

The Second Accident (March 1, 2011)

[36]        
The Second Accident occurred on March 1, 2011. Although there was no
visible damage to her vehicle she said she “freaked out” as she didn’t want to
get hit again.

[37]        
She sustained no physical injury in the accident and missed no time from
work. She did experience some increased anxiety following this accident.

The Third Accident (August 20, 2012)

[38]        
The Third Accident occurred on August 20, 2012. Ms. Javier was driving a
Honda CRV which she had recently bought as she thought she would be safer driving
a larger vehicle. The plaintiff’s vehicle was struck on the left side by a BMW
which ran a red light at the intersection through which the plaintiff was
traveling.

[39]        
Upon impact the plaintiff testified she felt a sensation in the right
side of her neck. After getting out the vehicle and sitting on the curb to
recover her senses she returned to her vehicle and continued to work to do a
home inspection at one of the houses she had for sale.

[40]        
Ms. Javier testified the Third Accident caused the symptoms she
sustained in the First Accident to get worse, particularly her neck and right
shoulder pain. She testified her depression and anxiety also worsened.

[41]        
She testified following the Third Accident she laid on her couch a lot
and found herself crying. She testified Dr. Lim advised her to continue
physiotherapy and massage therapy which she did.

[42]        
The plaintiff testified in direct examination she was off work until
December 2012 and that during that period she considered quitting her real
estate career, but reconsidered after a discussion with her boss at Sutton, Mr.
Mike Hofer. She said one of her coworkers, Ms. Angela Le, assisted her with her
real estate listings for a period following the Third Accident. She testified
that during the period she was off work she “did not want to do anything”; that
she found it hard to talk to clients; and that she procrastinated and felt
depressed.

[43]        
The plaintiff testified that by January 2013 she was starting to feel
better and was more motivated at work. However, in the fall of 2013 she said
she had a flare-up of her symptoms, particularly in her right shoulder. She
again started a series of massage therapy and physiotherapy on the advice of
her family doctor and that she had recovered to about the level she had been
before the Third Accident (i.e. about a 70% recovery after the First Accident).

[44]        
The plaintiff continued to attend physiotherapy into 2014 and does
exercises on equipment at home for her right shoulder and upper back. She bought
a chair massager for use at home when she was unable to see her massage therapist.
She also stretches, goes to the gym in her condominium and walks regularly.

[45]        
The plaintiff says that even though she has improved 70% from the
injuries sustained in the First Accident, she does not have any pain free days.
She describes the pain in her right shoulder and upper back and neck as “always
there” and at times, particularly after prolonged sitting and driving as “excruciating”.

[46]        
In cross-examination Ms. Javier acknowledged she had told Dr. Barry Vaisler,
an orthopedic and hand surgeon who assessed her, she had not been injured in
the Second Accident and that she had worked both before and after that
accident. She also agreed she had continued on to work following the Third
Accident to do a house inspection.

[47]        
Ms. Javier agreed she had been going out with men socially since about
2006 and that she had had a “blissful” relationship with her last boyfriend,
had travelled to see him and to Las Vegas, but had broken the relationship off
as it was a long distance relationship which was not dealing with her needs.

Plaintiff’s Pre-Accident Medical History

[48]        
In May 2003 Ms. Javier attended RehabMax for physiotherapy arising from
a sore right neck which had been bothering her for “many years” and weakness in
her right arm. She was treated on six occasions ending in September of that
year.

[49]        
In April 2005 the plaintiff again attended physiotherapy as a result of
a flare-up in neck pain.

[50]        
In November 2007 she again attended physiotherapy because she had pain
in the right side of her neck and right arm which had been aggravated in a
motor vehicle accident.

The Plaintiff’s Real Estate Work History

[51]        
As stated, the plaintiff started her real estate career at HomeLife.

[52]        
The number of her sales increased significantly over the following years.
In 2006 she earned commission on the sale of three houses; in 2007 on seven
houses and in 2008 on 13 houses. Notwithstanding the injuries she sustained in
the First Accident she sold 16 houses in 2010.

[53]        
In 2011 she earned commission on 20 properties and was awarded a
“Medallion Club” membership for being in the top 10% of realtors in the Fraser
Valley for sales.

[54]        
In October 2011 Ms. Javier changed agencies. She commenced working with
Sutton in Vancouver. She thought she could sell between 20 to 30 higher priced
homes and hence earn higher commissions. She did not earn any commissions from
October to December 2011 after she joined Sutton.

[55]        
In 2012 the plaintiff sold ten properties, nine before the Third
Accident and one after.

[56]        
In 2013 she sold 11 properties and in 2014, to the date of trial she had
earned commissions on three more property sales although the commission had not
yet been paid.

[57]        
In the course of conducting her real estate business the plaintiff incurred
business expenses including fees, commissions and other expenses payable to the
brokerage house, commission rebates often demanded by clients and marketing
expenses. The plaintiff testified such expenses ran at between 40 to 60% of her
gross commissions. She testified the average commission was approximately $6,000
per sale and that she had to earn commissions on about ten sales per year to
break even after expenses.

[58]        
The plaintiff’s earnings as a real estate agent were:

[59]        
In cross-examination Ms. Javier agreed her real estate expenses were
high because she gave incentives to purchasers or sellers and it was her choice
whether to do so or not and that such expenses affected her net income.

[60]        
Ms. Javier was cross-examined on the significant difference between her
gross income and her advertising expenses shown on her 2011 and 2012 income tax
returns (which was a cause for the significant drop in Net income between 2011
and 2012). She was unable to explain the variation, testifying she had given the
expenses to her accountant who had prepared the returns and that she had relied
on his advice.

[61]        
Ms. Javier acknowledged she ordered calendars for marketing purposes in
or about October/November 2012 which she had mailed out to about 52 clients,
but that she found it difficult to do more than this.

[62]        
When the question was put to her that she had become “very successful in
2011” she agreed and said it was because she had started to feel better and was
able to work harder.

[63]        
She agreed she had attended a realtor’s conference in November 2012
which was held at Whistler but said at the time she was still in pain and was
driven there as she could not drive. She testified she did not participate in
activities except to eat meals with others, go for a short half hour walk and
then rested.

[64]        
She agreed that both before and after the Third Accident she worked
seven days a week: that she wanted to achieve sales that would place her in the
Medallion Club again. She said some days she needed a break because the long
hours stressed her neck and lower back. She testified she was working hard
despite the fact that she continued to experience pain from the First Accident.

[65]        
When comparative sales figures for 2011 and 2012 were put to the
plaintiff she agreed that by the end of September in each of those years she
had sold 16 properties in 2011 and nine in 2012 she agreed she was working very
hard in the first nine months of 2012 to try to reach the Medallion Club level
of sales.

[66]        
She testified that to reach the Medallion Club level in 2012 she would
need to sell between 20 and 25 properties and would need to sell at least nine
more between September and December 2012 to reach that level of sales. She
agreed with the suggestion she had a “lot of catching up” to do.

[67]        
She agreed she had completed one more transaction after the Third
Accident and had spent time negotiating and closing the transaction.

[68]        
Ms. Javier agreed that as a result of the three accidents she had not
lost any clients but she needed to phone them to remind them she was there.

[69]        
She agreed in cross-examination when she saw Yung Le, her
physiotherapist, on October 3, 2012 she told him she had gone back to work, but
disagreed that she told him she had returned to working her regular hours as
noted in the RehabMax clinical records of that date.

[70]        
She agreed she told Ms. Theresa Wong, the occupational therapist, on
April 13, 2013 that she had been off work for several months following the
Third Accident but had returned to work in January 2013.

[71]        
Ms. Javier agreed she had obtained and been involved to some degree with
listings after the Third Accident on August 31, October 29, November 15,
November 16, 2012, but said Ms. Le had assisted her with some.

[72]        
Ms. Javier agreed she had sold ten properties during the period January
1, 2013 to September 30, 2013 and one property from that date to the end of
December 2013.

Medical Evidence

Dr. Chuck Jung

[73]        
Dr. Jung is a clinical psychologist who saw the plaintiff on May 14, 21
and 28, 2010 for an assessment and again for psychological interventions on
June 25 and July 16, 2010. Dr. Jung prepared a medical legal report dated
September 15, 2010 and was cross-examined on his report at trial.

[74]        
At the time he saw Ms. Javier she was complaining of headaches, neck
pain, nausea, buzzing in her ears, sore shoulders, numbness, and tingling in
her hands, pain in her upper, mid and lower back and problems with fatigue.

[75]        
Dr. Jung found she had symptoms of anxiety, depression and adjustment
difficulties related to her physical problems. He said she reported feelings of
helplessness, low self-esteem and anxiety when driving in traffic.

[76]        
Dr. Jung testified Ms. Javier had poor insight into the nature of her
psychological problems. He diagnosed her as “experiencing an Adjustment
Disorder with anxiety and depressed mood (chronic) and Pain Disorder associated
with general medical condition and psychological factors”.

[77]        
Dr. Jung recommended 12 sessions of psychological treatment followed by
an assessment for the need of further treatment. He also recommended she
continue with her physical rehabilitation.

[78]        
Dr. Jung had not seen the plaintiff since July 2010 and accordingly had
no opinion to offer as a result of the plaintiff’s involvement in the Second
and Third Accidents.

Dr. Nairn Stewart

[79]        
Dr. Stewart is a specialist in physical medicine and rehabilitation. She
saw the plaintiff at the request of her counsel on July 7, 2009 and prepared a
medical report dated May 29, 2011. Dr. Stewart was cross-examined at trial.

[80]        
In her report she noted at the time she saw her Ms. Javier was complaining
of pain in her left neck, shoulder blade, armpit and upper arm, right trapezius
muscle, and low back, as well as headaches. Dr. Stewart recorded Ms. Javier
told her she cried easily and felt she had withdrawn socially from family and
friends. She reported having flashbacks to the accident and was nervous both
while driving and as a passenger in a vehicle. She was taking medications
Celebrex, Ativan and Advil.

[81]        
Ms. Javier reported a sitting tolerance of 45 minutes, limited by back
pain.

[82]        
Dr. Stewart testified Ms. Javier reported that despite her symptoms she
was able to do all her job activities. Dr. Stewart testified she got the
impression from what Ms. Javier told her she was hard-working and “driven” when
it came to her real estate career.

[83]        
Ms. Javier had taken two sets of treatment at Karp Rehabilitation and a
number of sessions of massage therapy. Dr. Stewart reported Ms. Javier told her
both sessions provided relief but the relief was temporary.

[84]        
On physical examination Dr. Stewart noted increased muscle tension in
both trapezius muscles and a decreased range of motion in her neck because of
pain but there was full range of motion in both shoulders and hips and mid
back. She found Ms. Javier to be “extremely tense and protective of herself.”

[85]        
She noted that x-rays performed at the hospital on the day of the First
Accident showed “mild to moderate degenerative changes throughout the lower
neck” and an MRI done January 21, 2010 “revealed evidence of severe
supraspinatus tendinopathy and severe biceps tendinopathy/partial tears”. Dr.
Stewart was of the opinion these findings were “incidental”: that is, “neither
caused by the motor vehicle accident nor contributing significantly to her
symptoms since the motor vehicle accident.”

[86]        
Dr. Stewart was of the opinion Ms. Javier had sustained soft tissue
injuries to her neck and back with pain radiating into her shoulders which
“have undoubtedly been aggravated by increased muscle tension”. She testified she
found no evidence of injury to her shoulders. Dr. Stewart noted that Ms. Javier
had “many fears and misconceptions about her body” (eg. fear she had cancer)
and it was her opinion Ms. Javier had suffered from symptoms of posttraumatic
stress disorder which were contributing to the increased tension in her
muscles, thereby aggravating her pain since the First Accident.

[87]        
Dr. Stewart recommended Ms. Javier commence yoga for stretching and
muscle relaxation.

[88]        
At the time she wrote her report she commented that if Ms. Javier was
still experiencing symptoms two years after her injury “it was likely that
those symptoms will be ongoing and that she would be unable to do physically
demanding work”. She was of the view Ms. Javier was “best suited to work at the
sedentary to light level of physical activity with the flexibility to change
her work tasks and position periodically throughout her workday” and that she
would require a “good ergonomic setup” at her workstation.

[89]        
Again, Dr. Stewart had not seen Ms. Javier following the Second or Third
Accidents.

Dr. Roy O’Shaughnessy

[90]        
Dr. O Shaughnessy is a forensic psychiatrist. He saw Ms. Javier for a
psychiatric assessment “to determine whether she has suffered any mental
disorder as a result of injuries sustained in either motor vehicle accident of
April 18 2009 or March 1, 2011”.

[91]        
Dr. O’Shaughnessy conducted an office assessment of her on July 10, 2012
and provided a medical legal opinion dated July 16, 2012. Dr. O’Shaughnessy was
cross-examined at trial on his report. When asked to comment on both accidents,
he identified the accident of April 18, 2009 as being the cause of his
psychological findings.

[92]        
Dr. O’Shaughnessy was of the opinion Ms. Javier had experienced “a great
deal of anxiety”, most of which was directly related to her physical injuries
and pain sustained in the First Accident.

[93]        
He stated:

I have little doubt that her
non-organic signs were in fact directly related to the anxiety she experienced
related to the injuries and her perceived concerns that this may lead to more
pervasive impairment or dysfunction

[94]        
Dr. O Shaughnessy was of the opinion Ms. Javier met the Diagnostic and
Statistical Manual of Mental Disorders, 4th ed. (“DSM-IV-TR”) criteria of
Adjustment Disorder with Depressed and Anxious Mood. He described this as being
a mental disorder in which individuals experience greater than expected or
normal degrees of symptoms such as anxiety or depression following an
identifiable stress, in this case, the First Accident.

[95]        
Dr. O’Shaughnessy noted that Ms. Javier’s anxiety symptoms had improved
but continued to be evident, especially when she has a flare-up of pain. He
noted what he described as the “bidirectional relationship” between her pain
and her enhanced anxiety: that is, when she experiences pain, she immediately
thinks of catastrophic circumstances and the resulting anxiety increases her
focus on the pain.

[96]        
Dr. O’Shaughnessy was of the opinion Ms. Javier’s prognosis was “quite
positive” and he recommended ten sessions of cognitive behavioral therapy to
assist her in managing her anxiety.

[97]        
Dr. O’Shaughnessy disagreed with defence psychiatrist Dr. Levin’s
opinion. He noted in his report

…with respect I do not think
that opinion [that Ms. Javier did not have any symptoms of any mental disorder
of any type] is consistent with the actual data which in fact document both
objective descriptions of her anxiety and depressed mood as well as her
subjective reports of dysfunction

[98]        
In cross-examination Dr. O’Shaughnessy agreed he was not aware of the prior
motor vehicle accident of December 17, 2006 in which Ms. Javier was involved.
He agreed that accident could have been a stressor causing some of the
plaintiff’s current condition “if it was a significant accident”.

[99]        
He also agreed most adjustment disorder diagnoses were of short term
duration once the “stressor” ceased but that if the condition continued for
more than six months it could become chronic and persistent.

[100]     Dr.
O’Shaughnessy also agreed the symptoms must be clinically significant and occur
within three months of the stressor(s) to qualify as a diagnosis of Adjustment
disorder.

[101]     In cross-examination
Dr. O’Shaughnessy was taken through the various physiotherapy reports and the
clinical records of Dr. Lim. He agreed there was no reference to complaints of
anxiety during the course of the plaintiff’s physiotherapy treatments (he
questioned whether such a complaint would be made to a physiotherapist) and he
testified he could not read most of Dr. Lim’s clinical records and said he “got
little” from his review of Dr. Lim’s records.

[102]     He
testified he understood the Second Accident involved a “gentle impact” and
while it may have aggravated her pain it was his view the First Accident was
the precipitating cause of his diagnosis.

Dr. Barry Vaisler

[103]     Dr.
Vaisler is an orthopedic and hand surgeon who saw the plaintiff for an
independent medical legal examination on April 2, 2012 for injuries arising
from the First and Second Accidents. Dr. Vaisler prepared a medical legal
report of July 13, 2012 and was cross-examined on that report at trial

[104]     Dr. Vaisler
was of the opinion Ms. Javier “most probably sustained a soft tissue injury to
her neck and low back, along with mild sub acromial impingement of both
shoulders” as a result of the First Accident.

[105]    
 It was Dr. Vaisler’s opinion that

in view of the prolongation of
her neck pain for over three-and-a-half years following the motor vehicle
accident it is more likely than not that she sustained a soft tissue injury to
one or more cervical facet joints as a result of the [First Accident].

[106]     Dr.
Vaisler noted Ms. Javier had a history of intermittent episodes of neck pain
since 2003 and that x-rays taken of her neck in April 2009 showed “moderate
multilevel cervical degenerative disc disease” which was present prior to the First
Accident. Dr. Vaisler’s view was that if Ms. Javier’s symptoms persisted it
would be “worthwhile” for her to be assessed at a pain management clinic and to
undergo facet joint blocks under x-ray control.

[107]     Dr.
Vaisler also recommended a regular program of exercises including a repeat neck
and back education program at Karp Rehabilitation and a gym membership for six
to eight months with initial supervision of her exercise program by a
kinesiologist or personal trainer. He also suggested she obtain an Obus Forme
type of back support for prolonged sitting and driving and would most probably
require help with the heavier aspects of housework and household chores for the
foreseeable future.

[108]     In cross-examination
Dr. Vaisler agreed Ms. Javier had degenerative disc disease throughout her
lower spine which he was “pretty sure” was age-related, that the plaintiff had
reported periodic neck pain since 2003 and that even without the accident she
would have experienced occasional neck pain for which she would have required
physiotherapy.

[109]     Dr.
Vaisler did not see Ms. Javier following the Third Accident.

Ms. Theresa Wong

[110]     Ms. Wong,
an occupational therapist with LifeMark Health Centre, prepared a functional
capacity evaluation and cost of future care report dated May 14, 2013 following
assessments of Ms. Javier conducted on April 9 and 17, 2013. Ms. Wong was
cross-examined on her report at trial.

[111]     Ms. Wong
was of the view Ms. Javier “presented with a heighted pain focus” and accordingly
she informed her opinions based on her objective findings rather than Ms.
Javier’s subjective reports of pain.

[112]     Ms. Wong
was of the opinion Ms. Javier demonstrated the capacity to meet to the physical
requirements of her job as a real estate agent but had reduced functional
capacity for forward reaching with her right arm, and could sit and stand as
long as she had opportunities for stretching and altering posture. She was
described as being functional for “occasional walking”. Ms. Javier reported
increased neck and right shoulder pain on performing reaching and back pain on
pushing.

[113]     Ms. Wong
was of the view Ms. Javier had overall functional capacity to fulfill the job
functions of a realtor but that her complaints of pain and her reduced
functional capacity arose from injuries sustained in the First Accident.

[114]     She
recommended:

–           
8 to 12 sessions of psychological counseling for
cognitive-behavioral therapy and active pain management strategies at a cost of
$175 per hour (total cost between $1,400 – $2,100);

–           
6 hours of occupational therapy to assist in proper body
mechanics and work simplification education to enable her to more fully
participate in housekeeping activities at $90 per session or $648 (including
travel);

–           
An ergonomic assessment of her home office (cost included in
above);

–           
12 one half hour sessions with a kinesiologist (Ms. Wong
suggested she return to Karp Rehabilitation) at $65 per session or $780; and

–           
The purchase of an adjustable ergonomic office chair, keyboard
tray and footstool at a total cost of $690.

Mr. Yung Le

[115]     Mr. Le is
a physiotherapist with RehabMax who treated Ms. Javier for various periods of
time commencing May 4, 2009 on the recommendation of her family physician.

[116]     He
performed a spinal assessment on May 4, 2009 and noted she had pain and
stiffness on both the right and left sides of her neck, right sided shoulder
pain, low back pain, tingling in her foot, that she felt nauseous, had
headaches and decreased concentration.

[117]     Mr. Le
found a 75% reduction in the range of motion in her neck and lumbar spine.

[118]     Mr. Le saw
the plaintiff on 27 occasions between May 4 and August 24, 2009 and testified
she responded well to physiotherapy reporting reduced pain and increased range
of motion.

[119]     On
November 23, 2009 Ms. Javier re-attended Mr. Le reporting ongoing pain in her
lower back and hips. She told him she felt as if her lower back bones were
“collapsing”. She continued to receive a further 13 treatments from December
2009 through February 2010. Mr. Le testified Ms. Javier told him she felt the
treatments were helpful in decreasing her neck and shoulder pain but thought
she should have continued access to physiotherapy

[120]     As noted,
an MRI scan performed January 21, 2010 found her supraspinatus tendon to be
mildly expanded. The impression of the technician who did the MRI was she had
“severe supraspinatus and bicipital tendinopathy”.

[121]     Mr. Le did
a spinal assessment again on July 28, 2010. Ms. Javier was complaining of right
sided neck pain, headaches and upper shoulder pain. Mr. Le said he treated her
on a further three occasions in August and two in September 2010 when ICBC
stopped covering her treatments.

[122]     When he
saw her September 8, 2010 she was “very stressed out” and “very teary”.

[123]     Ms. Javier
returned for a further series of some 17 treatments commencing December 8, 2010
continuing through to May 10, 2011. Mr. Le testified she was initially
complaining of headaches, soreness in her upper right trapezius between her
shoulder blades, and continued flare-ups of pain in her left neck and low back.
She reported the Second Accident to Mr. Le but said she sustained no injury
except increased anxiety while driving.

[124]     Mr. Le
described a pattern in his treatment whereby Ms. Javier would have a flare-up
of pain, then attend for treatment which would cause the pain to settle down
but it would then flare-up again and she would return for more treatment.

[125]     Mr. Le saw
her January 24, 2012 for left neck, upper right arm and upper trapezius muscle
pain and again September 8, 2012 following the Third Accident in which she told
him the pain in her right neck and low back had increased. He noted an
increased limitation in the range of motion to her neck and low back (75% of
normal).

[126]     Mr. Le
then saw Ms. Javier a further 19 times between September 8, 2012 and March 16,
2013 and 11 times between October 28, 2013 and January 3, 2014. She continued
to complain of right neck and arm pain and pain in the trapezius area of the
right shoulder. The pain at times was persistent but at other times would
improve with treatment only to reoccur.

[127]     Mr. Le
testified he had treated Ms. Javier in 2003 for right elbow pain from which she
recovered; once in April 2005 for neck pain; and twice in November 2007 for
injuries to her right neck, shoulder and elbow which were “aggravated” after a
motor vehicle accident that year. The next time he saw her was in April 2009.

[128]     In cross-examination
Mr. Le agreed in 2003 Ms. Javier had complained of right upper trapezius muscle
pain and had 7 treatments.

[129]     He agreed
that after the First Accident Ms. Javier was discharged from further treatments
on February 12, 2010. He testified he had given her a plan for exercising and
he had planned to monitor her progress.

[130]     Mr. Le
agreed the first time Ms. Javier complained of numbness was in her visit to him
on September 8, 2010.

[131]     Mr. Le
testified on May 10, 2011, Ms. Javier was not discharged from his care but
stopped attending treatments and that she returned January 24, 2012 for one
treatment session and it was not until eight months later on September 8, 2012,
after the Third Accident that she returned. He agreed this was the first time
he noted a reduced range of motion since May 2009 and that she told him she had
aggravated the injuries sustained in the previous accidents.

[132]     Mr. Le agreed
in cross examination Ms. Javier told him on October 30, 2012 she had returned
to work, working her regular hours.

Ms. Toni Svoboda

[133]     Ms. Svoboda,
Ms. Javier’s treating massage therapist, testified she saw Ms. Javier for several
blocks of treatment. She first saw her commencing April 13, 2010 for 11
treatments which continued to June 25, 2010. She testified her primary areas of
complaint were her neck, back and lower back mostly on the left but some
treatment to the right side of her body. She said on the date of the last
treatment she did not discharge Ms. Javier, but hoped she would continue with
treatments.

[134]     Ms.
Svoboda next saw Ms. Javier on October 5, 2010 for treatment of her right
shoulder, low back, hips and numbness in her right leg.

[135]     She saw
her again for a further series of treatments commencing February 2, 2011 for
low back and hip pain and then May 5, 2011 (after the Second Accident) for both
shoulders and her lower back and then on September 15, 2011 for right shoulder
and arm pain and right lower back pain. Ms. Javier reported “feeling better” in
visits of September 20 and October 20, 2011.

[136]     In January
2012 she treated her twice for her left shoulder which was still hurting her. Ms.
Javier next saw Ms. Svoboda August 27, 2012 after the Third Accident for a
series of eight sessions ending December 13, 2012. She advised Ms. Svoboda she
had been in another accident and she was treated for right neck and right shoulder
pain, left lower back and right hip pain and a painful left leg.

[137]     Ms. Svoboda
described Ms. Javier as being upset, anxious and appearing to be “in a lot of
pain” when she attended her treatments.

[138]     In cross-examination
Ms. Svoboda agreed the plaintiff had no complaints of lower back pain between
April 13, 2010 and October 5, 2010 and that on the latter date she first
complained of numbness in her right leg. She also agreed on her February 2,
2011 visit, Ms. Javier told her that her lower back “went” three days previous
when she had bent over to pick an object up. Ms. Svoboda agreed she considered
this significant, but said she had “always” worked on her lower back, but had
not noted it in her records.

[139]     Ms.
Svoboda agreed she would have expected the plaintiff to have attended her on a
more frequent basis.

Dr. O.M. Sovio

[140]     Dr. Sovio
is an orthopedic surgeon who saw the plaintiff at the request of the defendants
on April 19, 2011, following the Second Accident. Dr. Sovio prepared a medical
report of April 21, 2011 and a further updated report of September 30, 2013. He
was cross-examined on his reports at trial.

[141]      At the
time he initially saw her Ms. Javier was complaining of headaches, ringing in
her ears, pain in the left side of her neck radiating into her left arm, a sore
back and discomfort in the trapezial area of her shoulders. She advised him she
was not injured in the Second Accident although she became quite anxious
following that accident.

[142]    
Dr. Sovio noted Ms. Javier had a full range of motion of both her neck
and lumbar spine; that there was nothing to suggest nerve root impingement or
any shoulder abnormality. Dr. Sovio did not think the MRI of the right shoulder
had anything to do with the First Accident. He noted

there does not appear to be
anything significant ongoing as far as physical injury is concerned. This
lady’s presentation is exaggeration as far as the description of her discomfort
is concerned

[143]     He opined
that “[f]rom the physical standpoint I feel that this lady needs to be
reassured that nothing significant is ongoing and that she needs to carry on
with her life in a normal and unlimited fashion”.

[144]     In his
report of October 11, 2013 Dr. Sovio reviewed additional medical records and
the opinions of Dr. Stewart and Dr. Vaisler. He disagreed with Dr. Stewart’s
diagnosis that Ms. Javier had shoulder tendinitis. He also disagreed with Dr. Vaisler’s
opinion Ms. Javier suffered a facet joint injury and with his recommendation
she have facet joint blocks for diagnostic purposes.

[145]     In cross-examination
Dr. Sovio agreed he had only seen Ms. Javier on one occasion, some two years
following the First Accident. He agreed with the suggestion that because the
plaintiff’s complaints appeared entirely subjective (that is he found no
objective signs of injury) that did not mean her complaints were not real. He
agreed his concern was that the plaintiff’s description of pain (as “excruciating”)
was out of proportion to what he found on his physical examination. He also
agreed that given the damage to her vehicle in the First Accident and the fact
she attended hospital in an ambulance, it was likely she did suffer soft tissue
injuries from the First Accident. He said he did not see an organic basis for
severe pain and it was possible her pain had psychiatric components.

[146]     Dr. Sovio
agreed the hospital records he examined indicated the plaintiff was “very
anxious” and was given medication to calm her down. He agreed that if the
plaintiff suffered from an adjustment disorder he would defer to the opinion of
a psychologist or psychiatrist for that diagnosis and treatment.

[147]     Dr. Sovio
agreed the plaintiff did have chronic shoulder inflammation as shown on her MRI.
He agreed with Dr. Vaisler the finding of impingement in her shoulder area
would be susceptible to ongoing pain on overhead reaching and that such pain
would wax and wane depending upon her level of activity.

[148]     Dr. Sovio
recommended she undergo a supervised exercise program to improve the tolerance
to activity in this area.

Dr. Andrew Levin

[149]     Dr. Andrew
Levin, a psychiatrist, saw Ms. Javier at the request of the defendants on
August 4, 2010 to assess her for psychological/emotional difficulties arising
from the First Accident. He prepared a medical legal report dated August 20,
2010 and a further report dated October 11, 2013 in which he reviewed additional
medical documentation relating to her Second and Third Accidents. Dr. Levin was
called to give evidence at trial and was cross-examined on the report.

[150]     Dr. Levin
noted when he interviewed Ms. Javier that “[f]rom a psychological perspective
she presented with some vulnerabilities related to her what seemed-to-be
histrionic personal traits”. He described these traits as “prominent” and as
“characterized by a pervasive pattern the excessive emotionality,
expressiveness, gregariousness and dramatic, flamboyant behavior”. He did not
think she fulfilled the DSM-IV-TR criteria for histrionic personality disorder.

[151]    
He wrote that:

from a psychiatric perspective,
Ms. Javier’s underlying histrionic personality traits superimposed on
biological vulnerability [family history of depression] most likely predisposed
her to the development of a more significant emotional reaction in response to
different stressors in her life.

[152]     Dr. Levin
concluded, given her prior experiences (previous motor vehicle accident and
recovery from her son’s death), that Ms. Javier had shown significant
resilience to stressors in the past. He considered this and the fact that she
had continued to drive and work and have contact with clients after the First
Accident as indicative her emotional/psychological reaction to the First Accident
did “not exceed a normative reaction to the stress”. He concluded she did not
develop any “major mental illness or significant psychological/emotional
disturbance” which would require intervention by a psychologist or
psychiatrist. He was of the view she would probably benefit from a “brief
psychoeducation” session provided by her family physician.

[153]     In his
October 11, 2013 medical report Dr. Levin stated there was “no significant
difference” between his opinion of Ms. Javier’s reaction to the First Accident
(that is that it “represented a transient emotional distress that did not
exceed a normative reaction event”) and Dr. O Shaughnessy’s diagnosis of “an Adjustment
Disorder with Depressed and Anxious Mood as described in Diagnostic and
Statistical Manual of Mental Disorders, fifth ed. He agreed with Dr.
O’Shaughnessy that Ms. Javier’s prognosis was “quite positive”.

[154]     In
cross-examination Dr. Levin agreed psychiatric diagnoses were not based on “black-and-white
science”.

[155]     He agreed
he had not discussed with the plaintiff how she was performing as a realtor and
whether her work/revenue had decreased since the First Accident. He agreed if
such was the case the loss could be attributed to anything, including to the First
Accident. He agreed one’s emotional state could affect motivation and drive.

[156]     Dr. Levin
acknowledged he did not see the plaintiff following either the Second or Third Accidents
and that he had no knowledge of the plaintiff’s reaction following the Third Accident.

Work Related Witnesses

Stuart Loutet

[157]     Mr. Loutet
was in charge of the HomeLife branch where Ms. Javier worked as a real estate
sales representative commencing in February 2006. He testified he provided her
with what he described as “quite a bit” of guidance when she first started her
career.

[158]     He
testified it was his opinion Ms. Javier had the motivation, intelligence and
personality to become a successful realtor. He gave evidence as to the growing
number of real estate transactions she was involved in from 2006 forward.

[159]     He
testified while the real estate market had declined in 2013, such declines do
not generally affect top end realtors. He said that by 2011, with the number of
deals she had completed, she would have been in the top 25% of realtors in the
office and that she was “moving toward the top 10 to 20% of realtors”, a group
who he said “once they get there they tend to stay there and have a good
career”.

[160]     Mr. Loutet
testified Ms. Javier was within the top 20% of the realtors in the Fraser
Valley and he saw no reason why she could not maintain or increase her level of
completions and the commissions she earned.

[161]     In cross-examination
Mr. Loutet acknowledged the plaintiff sold 17 properties in 2009; 16 in 2010
and 23 in the 2011 (in three of the sales in 2011 she received a commission as
both a buyer’s agent and seller’s agent).

[162]     Mr. Loutet
agreed that in 2009, the year of the First Accident, of the plaintiff’s 17 completions,
12 occurred in the last six months of the year.

[163]     He also
agreed the gap in the plaintiff’s sales between November 19, 2008 and March 18,
2009 was affected by the slow real estate market at that time.

Mike Hofer

[164]     Mr. Hofer
was the managing broker with Sutton, the company with whom the plaintiff became
a real estate salesperson in the fall of 2011. He explained the difference in
commission structure between Sutton and HomeLife. Sutton charged a flat
commission and a transaction fee per sales transaction and monthly fees for
administration, and other fixed monthly expenses which generally totalled $600
– $700 per month.

[165]     Mr. Hofer
described the attributes of a successful realtor as having the ability to
connect with people and gain their trust, tenacity, energy assertiveness and
the ability to “get over” rejection. He described the plaintiff as very
energetic, bubbly, friendly, outgoing, hard-working and diligent.

[166]     He
testified that after the Third Accident he noticed a drop off in the
plaintiff’s activity level.

[167]     Mr. Hofer
left his position with Sutton in March 2013.

[168]     He
testified he thought a sales representative would make approximately $8,000 for
each unit sold (assuming an average selling price of $500,000 and commission at
7 ½%).

[169]     He
testified that typically a broker who made the Medallion Club status would
remain at that level of sales. He said he was comfortable in testifying that
the plaintiff should be able to earn $24 – $25,000 in real estate commissions
per month.

[170]     Mr. Hofer
testified the real estate market was more robust in 2011 that in 2012. He said
“China turned off the tap” which “seriously curtailed” the market in 2012. The
top producers did not suffer as much. He described the market in 2013 as “balanced”:
that the Medallion Club admission level was probably not as high as a result of
tighter bank restrictions on the export of capital from China.

[171]     Mr. Hofer
testified he was confident the real estate market in Vancouver would grow in
2014 with a consistent buyer pool and reduced supply but thought the growth
would be in a single-digit amount.

[172]     Mr. Hofer
agreed that the trend in 2012 had continued into 2013 although activity had
picked up in the latter part of 2013. He agreed there was no pressure for an increase
in real estate prices in 2014.

[173]     Mr. Hofer
agreed based in her sales history, the plaintiff had not earned $8000 in
commission per transaction.

Position of the Defendants

[174]     The
defendants say the plaintiff was not a credible witness as her evidence
contained a number of inconsistencies. Those inconsistencies included her
testimony in direct examination that after the Third Accident she was “mainly”
in bed or on the couch and although answering some calls from clients she had a
much reduced energy level. However, in cross examination, when shown her
listings and sales following August 30, 2012 the defendants say it is clear she
was working hard “grabbing every opportunity available” to her. The defendants
noted of the seven new listings obtained by the plaintiff in 2012, five had
been obtained after the Third Accident, and she had agreed in cross-examination
she had driven to, inspected and measured properties, met with vendors and
prospective purchasers and agents, conducted market research, and continued her
marketing activities.

[175]     The defendants
also pointed to what were asserted to be inconsistencies in the plaintiff’s
evidence between her testimony that she was not working regular hours in
November 2012 and what she told Mr. Le in October 2012 that she had returned to
work regular hours. Further, on her examination for discovery when asked “Would
you say before August, 2012 and during 2012 you worked seven days a week doing
some form of realtor work every day?”, she responded “Yes, I just take a break
when I go to church, when I do my shopping and a little gallivanting”.

[176]     The
defendants also refer to what they say are inconsistencies in whether the
plaintiff’s son assisted her with open houses, her relationship with one of her
boyfriends and her demeanor on the witness stand.

[177]    
 The defendants refer to the comments of McEachern C.J. in Price v.
Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.):

the court should be exceedingly
careful when there is little or no objective evidence of continuing injury and
when complaints of pain persist for long periods extending beyond the normal or
usual recovery.

[178]     The
defendants also submit the plaintiff had suffered from pre-existing injuries to
her neck since at least 2003 and to her back from further incidents in 2005 and
2006 and had attended physiotherapy for treatment to her neck, lower and mid
back as well having complaints of headaches and right arm numbness.

[179]     The
defendants say the plaintiff would have continued to have had ongoing
intermittent physiotherapy for her neck pain in any event of the three accidents
under consideration in this case.

[180]     The
defendants say the plaintiff has failed to prove she requires ongoing
physiotherapy treatment as there are no expert medical reports after the Third
Accident which supports such treatment.

[181]     The
defendants noted neither Dr. Stewart nor Dr. Jung saw Ms. Javier after their
respective assessments in July 2010; both were done before the Second and Third
Accidents and Dr. O’Shaughnessy and Dr. Vaisler had not seen her since July
2012.

Adverse Inference

[182]     The defendants
say the Court should draw an adverse inference against the plaintiff for not
calling her attending family physician, Dr. Lim, the physician who had treated
Ms. Javier on an ongoing basis for 25 years.

[183]     The
plaintiff says it has called five specialists to testify, each of whom has had
Dr. Lim’s clinical notes to review and that Dr. Lim, as a general practitioner,
would not have added to the body of evidence required to assist the Court make
a proper determination in this case. Further, the plaintiff says the defendants
gave it no notice it was intending to make such argument.

[184]    
In Rintoul v. Gabriele, 2011 BCSC 858 the court dealt with an
argument by the defendant asking the court to draw an adverse inference from
the failure of by the plaintiff to call a treating therapist. The court refused
to do so, concluding it did not have sufficient information before it to
conclude the testimony would have been helpful to addressing the issues before
it. The court referred to Buksh v. Miles, 2008 BCCA 318 where Saunders
J.A. stated at paras. 33 and 34:

[33] …the free exchange of information and provision of
clinical records through document discovery raises the possibility that an
adverse inference may be sought in circumstances where it is known to counsel
asking for the inference that the opinion of the doctor in question was not
adverse to the opposite party.

[34] Taking the admonition of Mr.
Justice Davey to the extreme in today’s patchwork of medical services raises
the likelihood of increased litigation costs attendant upon more medical
reports from physicians or additional attendances of physicians at court, with
little added to the trial process but time and expense, and nothing added to
the knowledge of counsel. Perhaps the idea that an adverse inference may be
sought, on the authority of [Barker v. McQuahe (1964), 49 W.W.R.
685 (B.C.C.A.)], for the reason that every walk-in clinic
physician was not called fits within the description of “punctilio” that is no
longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste.
Marie, [1978] 2 S.C.R. 1299, in a different context.

[185]     I am of the
view I should not draw an adverse inference against the plaintiff for not
calling Dr. Lim. Dr. Lim’s clinical records were reviewed by each of the
physicians who did testify.

[186]     Dr. Lim
recommended Ms. Javier attend physiotherapy and massage therapy and each of
those therapists were called and provided the court with their clinical records.
Defence counsel had and took advantage of the opportunity to cross examine
those witnesses on their records of the plaintiff’s treatment, her complaints,
and her prior medical history.

[187]     I am of
the view Dr. Lim would have added little to the medical evidence the Court did
hear concerning the plaintiff’s diagnosis or prognosis. I am also of the view his
testimony would likely have added substantial time to the trial. Defence
counsel had access to Dr. Lim’s clinical notes and had ample opportunity to
utilize those notes in cross-examination of the plaintiff’s physicians and care
givers.

Finding on Credibility of Plaintiff

[188]     I will
first address the credibility concerns about the plaintiff’s evidence raised by
the defendants.

[189]     There are
contradictions in Ms. Javier’s testimony, particularly about her abilities to
perform her work as a realtor following the Third Accident. On the one hand she
testified she did not have the energy or motivation to meet with clients and
pursue her career; that she was in pain and laid on her coach or in bed for a
number of months following the Third Accident. On the other hand the evidence
clearly shows she obtained listings, was actively involved in pursuing real
estate deals within a much shorter time and that she had told her care givers
at the time she had returned to her regular hours of work by October 2012.

[190]     In my view
Ms. Javier was a credible witness. Her evidence must be viewed from a number of
perspectives. The first is that this case involves three separate motor vehicle
accidents which occurred over the span of three-and-a-half years. The injuries
sustained in the First and Third Accidents were similar. The latter accident
aggravated the injuries sustained in the First Accident.

[191]     The
parties argued the case on the basis that the plaintiff’s injuries are
indivisible and I agree that they are. Some of the inconsistencies in the
plaintiff’s evidence are explained by the simple fact that given the length of
time between the First Accident, the trial and the similarity of injury, it
would be difficult for anyone to recall with any precision how they were
proceeding in their recovery at any given time.

[192]     Second, as
noted by a number of the professional witnesses who offered opinions at the
trial, Ms. Javier is a demonstrative, anxious and emotional person. A large
part of her demeanor and how she portrayed herself is wrapped up in the anxiety
and concern for her well-being, as testified to by Dr. O’Shaughnessy whose
diagnosis of Adjustment Disorder with Depression and Anxious Mood I accept.

[193]     Third, I
do not accept Ms. Javier was consciously trying to deceive the Court in her
evidence. When confronted by inconsistencies in either the medical evidence or
her examination for discovery she generally agreed and corrected herself.

[194]     Lastly the
evidence satisfies me while Ms. Javier did participate in activities (such as
obtaining listings, taking calls from clients and some marketing activities)
she did not put the same effort as she had prior to the Third Accident into
those activities until approximately January 2013. As she testified she went
through a period where her motivation to become fully engaged in her profession
suffered to the extent she considered giving up selling real estate. In my view
the medical evidence, including that of her therapists, Mr. Le and Ms. Svoboda
provides a clear and accurate picture upon which to assess Ms. Javier’s
injuries.

[195]     I accept Ms.
Javier told Mr. Le that she had returned to work “her regular hours” as a real
estate salesperson on or about October 30, 2012. I also accept that Ms.
Javier’s motivation level at that time was lower than it was pre-Third Accident.

[196]     I accept
Ms. Javier’s evidence that she still suffers from ongoing neck pain, right
shoulder pain, low back pain and intermittent headaches. The reliability of Ms.
Javier’s ongoing complaints following the third Accident is corroborated by the
functional capacity evaluation conducted by Ms. Wong in April 2013 as above
discussed.

[197]    
As noted recently by Williams J. in Dunne v. Sharma, 2014
BCSC 1106 at paras. 92 – 93

[92] As for the issue of psychological injuries, it is
recognized that such claims, where there is no tangible, objective support to
confirm the condition, and where the condition continues past what one might
expect to be a sensible or reasonable recovery, have to be carefully
scrutinized. In Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318, 62
A.C.W.S. (3d) 288 (C.A.), Justice Lambert discussed the conceptual approach to
assessing such a claim. Without treating the matter too simplistically, it
seems to me that the considerations a trier of fact must take into account
include these:

a)     Is the
pain or discomfort or unusual condition real? Is the plaintiff actually
experiencing it?

b)     The cause
of the condition must be genuinely related to the defendant’s wrongful act, not
driven by any improper motivation of the plaintiff, such as seeking sympathy or
care for care’s sake, or to gain compensation.

c)     A claim
will not be compensable if the plaintiff could overcome the condition by
exertion of his or her own resources – willpower and determination. The court
must be satisfied that the plaintiff genuinely seeks to overcome the condition.

d)     Expert
medical or psychological opinion evidence relevant to the issue should be
carefully scrutinized and considered by the court.

[93] That summarization is
neither elegant nor, I am sure, perfectly comprehensive. However, it attempts
to capture the court’s task: recognizing that psychological injuries can result
from the tortfeasor’s conduct, and because such injury is usually not verifiable
by the usual objective means, the court must examine all of the circumstances
and all of the evidence, with care, to ensure that such claims are honest and
real. The task is complicated as well because of the difficulty with respect to
predictions and prognosis in such matters.

[198]     I am
satisfied in this case, after a careful review of all the evidence Ms. Javier’s
claim is “honest and real”, is not driven by an improper motive and that her
claim is attributable to the negligence of the defendants.

[199]     I turn to
the issue of the assessment of damages.

Causation

[200]     The
plaintiff must establish on a balance of probabilities that but for the
defendants’ negligence she would not have suffered the injuries that she did: Clements
v. Clements, 2012 SCC 32 at paras. 8-10.

[201]     Where, as
here, there are multiple tortfeasors, the defendants are not excused from
liability because other causal factors for which they are not responsible also contributed
to produce the harm. As long as a defendant is part of the
cause of an injury, the defendant is liable, even though his or her act alone
was not enough to create the injury: Athey v. Leonati, [1996] 3
S.C.R. 458 at paras. 17-20.

[202]     The
defendants are not required to compensate the plaintiff for expenses or loss she
would have suffered in her life in any event, even without the accident: Blackwater v. Plint, 2005 SCC 58
at para. 78. The defendants must compensate for the
damages they caused but not for the effects of another other wrongful act that
would have occurred anyway. This is known as the
“crumbling skull rule”: Blackwater, at para. 80.

[203]     However, defendants
must take the victims of their negligence as they find them, and will be liable
for the plaintiff’s injuries even if the injuries are unexpectedly severe owing
to a pre-existing condition. This is known as the “thin skull rule”: Blackwater,
at para. 79.

[204]     I do not
accept the defendants’ argument that the plaintiff’s injuries were caused by
previous injuries, such as the motor vehicle accident she was involved in in
2006. Prior to the First Accident the plaintiff attended physiotherapy very
sporadically and made only minor complaints that had resolved by the time of
the accidents. I find that the plaintiff’s injuries were caused by the three
accidents at issue in this trial.

Non-Pecuniary Damages

[205]     The principal
factors a court must take into account in determining non-pecuniary damages
were set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46. Those
factors include the age of the plaintiff, the nature of the injury, the
severity and duration of the pain, disability, emotional suffering, loss or
impairment of life, the impairment of family, marital and social relationships,
the impairment of physical and mental abilities, loss of lifestyle, and the
plaintiff’s stoicism.

[206]     The
plaintiff seeks an award of non-pecuniary damages in the amount of $100,000 and
relies on the decisions of Jones v. Arjun, 2013 BCSC 1313; Loveys v.
Fleetham, 2012 BCSC 358; Jackson v. Mongrain, 2010 BCSC 1866; Juraski
v. Beek, 2011 BCSC 982; Coutu v. Rowe, [1996] B.C.J. No. 1781 (S.C.);
Kasidoulis v. Russo, 2010 BCSC 978; West v. Hamel, [1997] B.C.J.
No. 1706 (S.C.); Prince-Wright v. Copeman, 2005 BCSC 1306; Poirier v.
Aubrey, 2010 BCCA 266; and Marois v. Pelech, 2009 BCCA 286.

[207]     The defendants
submit a non-pecuniary award in the range of $35 – $40,000 is more appropriate.
The defendants rely on Rozendaal v. Landingin, 2013 BCSC 24; Olianka
v. Spagnol, 2011 BCSC 1013; Vela v. MacKenzie, 2012 BCSC 438; and Nair
v. Cindric, 2013 BCSC 2128.

[208]     While the
cases cited by counsel are a useful guide each case must be determined on its
own facts.

[209]     After
reviewing the authorities submitted by counsel, I award non-pecuniary damages
in the amount of $70,000.

Loss of Earning to Date of Trial

[210]     The
plaintiff does not claim she lost income following the First or Second
Accidents; the loss of past income claim arises after the date of the Third
Accident as a cumulative effect of all three accidents.

[211]     The
plaintiff submits her loss of commissions from the date of the Third Accident
to the date of trial is a net amount of $132,363. Plaintiff’s counsel argued
this amount is reached by taking $78,000 per annum for the two years as the
income she could have expected to earn ($156,000) less the amount she actually
earned ($3,637 in 2012 and $20,000 (estimated in 2013) for a net amount of
$132,363.

[212]     The
plaintiff says the $78,000 in annual commission is supported by the evidence
she could have achieved 20 to 30 sales per year with an average commission of
$6,000 per sale or $120,000 to $180,000 annual gross commission subject to
variable expenses of 40% to 60% leaving a “theoretical net income of $60,000 to
$96,000 or an average of $78,000”.

[213]     The
plaintiff says this amount is not a “pure wage loss” but rather, represents a
loss of earning capacity or a “lost opportunity” to earn income and hence
should attract no income tax.

[214]     The defendants’
position is that the plaintiff has not proven any losses attributable to the
defendants during this period: that any loss in income or lost opportunity to
earn income was the result of the decline in the real estate market in 2012 –
2013 as demonstrated by the much lower target to achieve Medallion Club status
in 2012 and the plaintiff’s net income after considering her high level of
expenses.

[215]     Compensation
for past loss of earning capacity is to be based on what the plaintiff would
have, not could have, earned but for the injury that was sustained: M.B. v.
British Columbia, 2003 SCC 53 at para. 49; see also Rowe v. Bobell Express
Ltd., 2005 BCCA 141.

[216]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, a
plaintiff is entitled to recover damages for only his or her past net income
loss. This means that in the ordinary course the court must deduct the amount
of income tax payable from lost gross earnings: Hudniuk v. Warkentin,
2003 BCSC 62 at para. 22.

[217]     The
question to be determined is whether “but for” the Third Accident the plaintiff
would have earned more income from real estate sales than she actually did
following that accident up to the date of trial.

[218]     The
starting point from an income loss perspective is that even though Ms. Javier
suffered injuries in the First Accident and had recovered to 70 percent, what
injuries she was left with prior to the Third Accident did not affect her
ability to effectively function as a real estate salesperson. Plaintiff’s
counsel did not argue she could have obtained more listing or sold more
properties than she did prior to the Third Accident.

[219]     The
plaintiff testified she was working in 2012 to make the Medallion Club again:
that she was working long hours and was working hard. However, by September
2012 she had only sold nine properties compared to the sixteen she had sold to
that date in 2011. As the defendants submit, she “was clearly not on track” to
make the Medallion Club as she had been in 2011. To the date of the Third
Accident she had sold seven less properties in 2012. She sold one more property
in 2012 in mid-November.

[220]      The
effort the plaintiff was putting into her work after the Third Accident,
notwithstanding her injuries, was not insubstantial. She obtained five new
listings after this accident – the first on August 31, 2012, another October
29, then November 15 and two November 16.

[221]     I conclude
from the evidence before me that the plaintiff was trying her best to perform
her functions as a real estate agent but that the decline in the real estate
market which was occurring in 2012 and 2013 significantly affected her sales.

[222]     I do not
accept Ms. Javier could have achieved the level of sales projected by her
counsel.

[223]     I am also
of the view however that given the nature of the plaintiff’s injuries and her
evidence about how the injuries and ongoing pain affected her mood and
disposition her sales did suffer.

[224]     Dr. Levin
noted her motivation and drive could suffer given her injuries. Mr. Hofer
testified he noticed a drop off in Ms. Javier’s activity level following the
Third Accident.

[225]     I conclude
that between the Third Accident and the date of trial it is more likely than
not that she lost several opportunities to obtain listings and make commissions
on sales.

[226]     I find
that but for the accidents, the plaintiff would have earned one more commission
in the remaining four months of 2012 and three more commissions in 2013. On the
basis that she earned approximately $6,000 gross per commission, she would have
earned $24,000 more in commissions between the date of the Third Accident and
the date of the trial. I would reduce this gross amount by 50% to reflect her expenses,
for an award of $12,000 for past wage loss.

[227]     The above
amount is subject to income tax. I will leave it to counsel to resolve that issue
with liberty to apply in the event they require directions.

Future Income loss

[228]    
In Schenker v. Scott, 2014 BCCA 203 Mr. Justice Harris (speaking
for the court) recently reviewed the law concerning an award for loss of future
earning capacity at para. 50:

[50] The principles specific to assessing an award for loss
of future earning capacity are well settled: see, for example, Rosvold v.
Dunlop, 2001 BCCA 1, and Perren v. Lalari, 2010 BCCA 140. These
principles were recently canvassed by this Court in Meghji v. British
Columbia (Ministry of Transportation and Highways), 2014 BCCA 105, where
Smith and Willcock JJ.A. writing for the Court said:

(ii) The approach to assessing
loss of future earning capacity

[81] It is correct to say that an
award of damages under this head is a result of the careful weighing of all the
evidence and the application of considered judgment to that evidence. It is not
a calculation: Mulholland v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
at para. 43, [1995] B.C.J. No. 1823 (C.A.). Because the court is required to
take into account all substantial possibilities it is necessary to use careful
judgment in weighing those possibilities. In order to ensure that all
reasonable substantial possibilities are taken into account, however, the
conventional approach is that described in Lines [2009 BCCA 106]. In
that case, at para. 57, Saunders J.A. held:

There are two major components to
an assessment of loss of future earning capacity. One is the general level of
earning thought by the trial judge to be realistically achievable by plaintiff
but for the accident, taking into account the plaintiff’s intentions and
factors that weigh both in favor of and against that achievement, and the other
is the projection of that earning level to the plaintiff’s working life, taking
into account the positive and negative vagaries of life. From these two major
components must be applied an analysis that produces a present value of the
loss, adjusted for all appropriate contingencies.

[82] The standard of proof to be
applied when evaluating hypothetical events such as loss of future earnings, is
simple probability rather than the balance of probabilities: Athey v.
Leonati, [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102.

[51] In assessing a claim for future income loss, whether
under an earnings approach or a capital asset approach, a court must first
inquire into whether there is a substantial possibility of future income loss:
see Perren v. Lalari, at para. 25. As Madam Justice Garson said at para.
32:

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

[52] In Perren, an award of $10,000 for future loss of
income was set aside where the trial judge had found that the plaintiff was
less marketable than before the accident but not in a way that demonstrated a
substantial possibility that she would suffer an associated pecuniary loss.

[53] Recent cases have reconfirmed the importance of relating
findings of fact to the assessment of damages: see, for example, Morgan v.
Galbraith, 2013 BCCA 305 at para. 56, and Jurczak v. Mauro, 2013
BCCA 507 at para. 29. Mathematical, statistical or economic evidence, where
available, may well be of assistance in assessing damages. As Madam Justice
Stromberg-Stein points out in Jurczak:

[35] Quantifying a loss may be
aided by some mathematical calculation, but there is no particular formula. As
stated in Rosvold v. Dunlop, 2001 BCCA 1:

[8] The most basic
of those principles is that a plaintiff is entitled to be put into the position
he would have been in but for the accident so far as money can do that. An
award for loss of earning capacity is based on the recognition that a
plaintiff’s capacity to earn income is an asset which has been taken away. Where
a plaintiff’s permanent injury limits him in his capacity to perform certain
activities and consequently impairs his income earning capacity, he is entitled
to compensation. What is being compensated is not lost projected future
earnings but the loss or impairment of earning capacity as a capital asset. In
some cases, projections from past earnings may be a useful factor to consider
in valuing the loss but past earnings are not the only factor to consider.

[11] The task of
the court is to assess damages, not to calculate them according to some
mathematical formula. Once impairment of a plaintiff’s earning capacity as a
capital asset has been established, that impairment must be valued. The valuation
may involve a comparison of the likely future of the plaintiff if the accident
had not happened with the plaintiff’s likely future after the accident has
happened. As a starting point, a trial judge may determine the present value of
the difference between the amounts earned under those two scenarios. But if
this is done, it is not to be the end of the inquiry. The overall fairness and
reasonableness of the award must be considered taking into account all the
evidence.

[18] The
assessment of damages is a matter of judgment, not calculation. …

[Emphasis added by
Stromberg-Stein J.A.]

[36] This process is “an assessment
rather than a calculation” and “many different contingencies must be reflected
in such an award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18.
“Ultimately, the court must base its decision on what is reasonable in all of
the circumstances. Projections, calculations and formulas are only useful to
the extent that they help determine what is fair and reasonable”: Parypa v.
Wickware, supra, at para. 70.

[37] With that said, if there are
mathematical aids that may be of some assistance, the court should start its
analysis by considering them. For example, in Henry v. Zenith (1993), 31
B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this Court held that
a trial judge’s failure to consider an economist’s projections of a plaintiff’s
lost future earning capacity contributed to the judge committing an error in
principle, which “resulted in a wholly erroneous estimate of the damages”.

[229]     The
plaintiff claims $210,000 for loss of future earning capacity based on an
earnings analysis.

[230]     As in the
claim for loss of commissions to the date of trial the basis underlying the
plaintiff’s claim is that Ms. Javier would have made between 20 and 30 sales
per year and, with an average commission of $6,000 on each sale, would have
earned between $120,000 and $240,000 per year, which amount, after taking into
account variable expenses of 40% to 60% would result in an annual income of
between $60,000 to $96,000 per year.

[231]     The
plaintiff says the resulting average of $78,000 should be discounted by 70% (to
take into account the percentage the plaintiff says she had recovered by the
time of trial) to reach an amount of $23,400 as an average loss per year which,
projected forward for 9 years to age 65 (when the plaintiff intended to retire)
equates to $210,600.

[232]     The
defendants say there is no evidence to support any loss of future earning
capacity claim: that the plaintiff has not met the test set out in Perren
that there is a real and substantive possibility of a future event leading to
income loss.

Discussion

[233]     Since the
First Accident in 2009 Ms. Javier’s real estate sales increased to such an
extent she achieved a very high level of success in 2011. The plaintiff
testified that in January of that year she was 70% improved. Her success in
selling real estate then occurred notwithstanding the injuries she sustained in
the First Accident. The plaintiff’s claim for future loss of net income is
based on her achieving that level again.

[234]     Ms. Javier
has demonstrated a unique skill as a real estate salesperson and high degree of
motivation in achieving her goals. Up to 2012 she achieved a very remarkable
degree of success in a short period of time.

[235]     After the
Third Accident she returned to work by October working her “regular hours”. At
the time of trial she again felt 70% improved: that is, she was at the same
status of recovery she was in after the First Accident and her state of health
was similar to her state of health before the Third Accident.

[236]     There is limited
medical evidence before the Court as to Ms. Javier’s current medical prognosis.
The only professional witness who had seen Ms. Javier subsequent to the Third
Accident was Ms. Wong. Ms. Wong testified Ms. Javier is able to perform the job
functions required of a realtor. Ms. Wong noted Ms. Javier did have limited
functionality and was in pain during testing but this did not affect Ms.
Javier’s ability to perform her functions selling real estate.

[237]     However,
Ms. Javier has only recovered 70% from the injuries sustained in the accidents and
continues to suffer from Adjustment Disorder with Depressed and Anxious Mood
which remains untreated following Dr. O’Shaughnessy’s diagnosis in July 2012. I
am of the view that Ms. Javier has established that there is a real and
substantial possibility that she will continue to suffer income loss as she
copes with the effects of and undergoes treatment for these psychological
problems.

[238]     I find
that the plaintiff will continue to earn approximately three fewer commissions
than she would have but for the accidents for three years. On the basis that
she would have earned $6,000 per commission, this comes to a gross loss of
$54,000. Subtracting 50% for expenses, I award the plaintiff $27,000 for future
earnings loss.

Cost of Future Care

[239]     As
discussed in Prempeh v. Boisvert, 2012 BCSC 304 at para. 107, an award
for cost of future case must be based on medical evidence as to what is
reasonably necessary to preserve and promote the plaintiff’s mental and
physical health. In assessing cost of future care, the court should consider
whether the plaintiff would likely use the items or services in the future.

[240]    
Madam Justice Dardi in Prempeh observed that this assessment is
not a precise exercise:

[108]    The assessment of
damages for cost of future care necessarily entails the prediction of future
events: Courdin v. Meyers, 2005 BCCA 91 at para. 34; Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205 at
para. 21. The courts have long recognized that such an assessment is not a
precise accounting exercise and that adjustments may be made for “the
contingency that the future may differ from what the evidence at trial
indicates”: Krangle at para. 21; X. v. Y. at
para 267. The extent, if any, to which a future care costs award should be
adjusted for contingencies depends on the consideration of the specific care
needs of the plaintiff and the expenditures that reasonably may be expected to
be required – taking into account the prospect of any improvement in the
plaintiff’s condition or conversely the prospect that additional care will be
required: O’Connell v. Young, 2012 BCCA 57 at paras. 67-68; Gilbert
v. Bottle, 2011 BCSC 1389 at para. 253.

[241]     Based on
these principles and the recommendations made by the various physicians and
care givers who treated Ms. Javier, I award these amounts for cost of future
care:

1.     Twelve
sessions of psychological counselling including cognitive behavior therapy as
recommended by Dr. O’Shaughnessy and Dr. Jung at a cost of $175 per hour (as
per Ms. Wong) or $2,100;

2.     Twelve
one-half hour sessions with a kinesiologist including a home assessment at a
cost of $65 per session (as per Ms. Wong) or $780;

3.     Six hours
of occupational therapy as recommended by Ms. Wong at $90 per hour and travel
expenses for a total of$648;

4.     An
allowance for home ergonomic office equipment as recommended by Ms. Wong of
$690.

[242]     In my view
there is a substantial likelihood Ms. Javier will need ongoing physical therapy
and massage therapy to assist her managing her pain as she goes through the
above treatments. I award her $3,500 to cover the cost of such future care as
well as to cover the cost of a gym membership to assist her to keep up her
exercise program.

[243]     Accordingly
I award the plaintiff $7,610 for cost of future care.

Special Damages

[244]     Ms. Javier
claims special damages for various expenditures made not already paid by the
defendants. I allow the following:

1.     Scott Road
Chiropractic for various treatments between 2010 and October, 2013 – $715.00;

2.     Rehabmax –
for various treatments between May 7, 2009 and November 6, 2013 –  $2,256;

3.     Gym passes
November 14, 2009 to March 12, 2013: $209.20;

4.     Mileage to
and from various office visits with Dr. Lim and other healthcare providers. The
amount claimed is $1,168.19. The kilometers travelled are approximate and are
to and from Ms. Javier’s home. I note her evidence at times she went to her
treatments from work. Further, the list of physicians on the list includes
physicians who I am not satisfied provided treatment causally related to the
injuries sustained in the accidents. I therefor reduce the amount claimed to
$750;

5.     Prescriptions
November 30, 2009 to September 17, 2013 – $118.77;

6.     December
2009 – gym trainer $40;

7.     Roda’s
Home Massage – $100; and

8.     Amount
outstanding to Dr. Chuck Jung Associates – The amount claimed is $720. I will
leave it to counsel to work out how much, if any of this amount has already
been paid by ICBC. Counsel have liberty to apply if they are not able to reach
agreement.

[245]     The
plaintiff claims the amount spent for a massager at Bed and Bath of $367.30. I
do not consider this a reasonable expense. The plaintiff purchased it in an
effort to try to find relief from her neck and shoulder pain but none of her
treatment providers appear to have recommended such purchase and there is some
question as to the relief it provided to her. I disallow this claim.

[246]     I do not
consider the expenses claimed for Dr. Luciuk ($40); Lonsdale Quay – pain
release roll on ($53.64); Metro Royal T Jewellery for a pain necklace ($52.50)
to be supported on the evidence as necessary and reasonable.

[247]     I also do
not allow the amount of $1,624.91 claimed as interest at the rate of 29.9% and
fees for a loan of $3,000 taken out by the plaintiff to assist her pursue this
action and to “to sustain her needs”. In my view there is no authority which
would permit such a claim.

Summary

[248]     In
summary, I award the plaintiff the following amounts:

“Greyell J.”