IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141126

Docket: M144628

Registry:
New Westminster

Between:

Michelle Cross

Plaintiff

And

Lee Randolph
Boehlke

Defendant

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
The plaintiff, Ms. Cross, was injured in a motor-vehicle accident
that took place on August 20, 2011 on 203rd Street in the City of Langley,
Province of British Columbia when her vehicle came into collision with a
vehicle driven by the defendant, Mr. Boehlke.

[2]            
Both liability and damages are in issue.

[3]            
The plaintiff was 21 years old at the time of the accident and 24 years
old at the time of trial.

[4]            
She and her fiancé had three children at the time of trial, the first
born September 29, 2007, the second born December 7, 2009 and the third born August
23, 2012.

[5]            
Ms. Cross says that she met her fiancé about ten years ago. He is a
commercial roofer, and they planned to get married on May 31, 2014.

[6]            
The plaintiff herself originally left school sometime during grade 8 but
subsequently obtained her grade 12 requirements in 2009.

Liability

[7]            
The collision occurred after the plaintiff had exited the driveway of
her townhouse residential complex on the east side of 203rd Street, with the
intention to cross the northbound lane on 203rd Street and make a left turn on
203^rd Street to proceed southbound after crossing the northbound lane.

[8]            
203rd Street at that point had one lane for travel southbound and one
lane for travel northbound.

[9]            
Mr. Boehlke was proceeding northbound on 203rd Street at the time
and their two vehicles came into collision near the centre line on 203rd Street
across from the entrance to the driveway.

[10]        
To the south from the driveway that Ms. Cross had exited, and on
the same side of the street as the driveway, was a park area with a parking lot
abutting 203rd Street.

Evidence of Ms. Pennington

[11]        
The independent witness Ms. Pennington says she was operating her
motor-vehicle southbound on 203rd Street at the time around 5:00 p.m. to 6:00
p.m. under conditions of clear, dry weather, heading towards her mother’s place
for dinner.

[12]        
She says she was quite familiar with the area as she drove that route
almost daily and she was travelling that day approximately at the speed limit
of 50km/h.

[13]        
She says as she was passing the townhouse complex in which Ms. Cross
resided, to her left she saw Ms. Cross’ vehicle at the edge of the
driveway inching out to the sidewalk on 203rd Street on the east side.

[14]        
At this point in time she estimates her vehicle was still three to four
car-lengths north of the driveway proceeding south. She assumed Ms. Cross’
vehicle was going to come across the northbound lane and turn left to proceed
southbound as she was.

[15]        
She says after seeing Ms. Cross’ vehicle at the edge of the
driveway and after being satisfied Ms. Cross was going to stay stationary
in the driveway she turned her vision forward southbound.

[16]        
She says on looking forward again she saw a northbound truck by a bridge
south of the driveway Ms. Cross was in, and travelling northbound down a
slope.

[17]        
She noticed the truck appeared to be speeding and coming quickly towards
her vehicle and her best estimate was that it was going double the speed limit
of 50km/h.

[18]        
She cannot say for sure how fast the truck was travelling but “really
quickly”.

[19]        
She says it was only maybe a second later when she passed by the
position of Ms. Cross’ vehicle.

[20]        
She says the last time she saw Ms. Cross’ vehicle it was not yet on
203rd Street and she never saw it again prior to the collision occurring.

[21]        
The northbound truck passed by her vehicle as she proceeded southbound
and she heard a crash behind her but did not see the collision. She says it was
approximately four seconds after she passed the driveway that Ms. Cross
was in, when she heard the impact.

[22]        
She is unable to estimate the distance from the driveway to the point
south on 203rd Street where she first saw the truck. She also allows any
estimate of its speed over three years later is problematic on her part.

Evidence of Ms. Cross

[23]        
Ms. Cross says she left her townhouse complex at about 5:00 p.m.
that day with her fiancé and their two sons.

[24]        
She says it was hot and sunny at the time and they were going to her
parents’ place.

[25]        
She says she proceeded on the exit driveway towards 203rd Street and
stopped her vehicle before the sidewalk on the east side. She saw no
pedestrians nearby on the sidewalk and 203rd Street to the south, her intended
destination, was clearly visible.

[26]        
She says she pulled out and saw a black truck far away to the south on
203rd Street travelling north and thought she had plenty of time to proceed and
let two southbound vehicles pass by before she proceeded into the southbound
lane.

[27]        
She says a bridge to the south was approximately 500 feet away and she
saw this truck at the top of a hill on the other side of the bridge. She
allows, however, that she is not very good at estimating distances.

[28]        
She says after looking left she inched forward into the northbound lane
further until the front of her vehicle was close to the centre line.

[29]        
She cannot recall how long her vehicle remained stationary near the
centre line as she was waiting for southbound vehicles to clear. She estimates
that she was stopped there eight seconds before impact.

[30]        
When she looked south again she says Mr. Boehlke’s truck was right
on top of her and she tried to turn into the southbound lane but his truck struck
her and slid along her left side.

[31]        
She says he swerved left and hit her in the southbound lane on her left
side as her vehicle continued moving forward.

[32]        
She says the collision occurred over the centre line mostly in the
southbound lane and she points to a photograph of the two vehicles at rest
after the collision with the truck partly over the centre line and the front of
the truck against the left-rear quarter panel of her vehicle.

[33]        
She disagrees the accident happened in the northbound lane. She says the
truck was definitely speeding.

Evidence of Mr. Telford

[34]        
Mr. Telford, the passenger in Ms. Cross’ vehicle, also says
the collision occurred around 5:00 p.m. on a sunny day. He confirms Ms. Cross
pulled up to the sidewalk on 203rd Street and he says he looked left and saw no
traffic proceeding northbound.

[35]        
He says the bridge was about 450 feet away to the south from the
driveway and the far end of the parking lot on the east side of 203rd Street
was approximately 200 feet away.

[36]        
He says he took a quick glance left and could see to the far side of the
bridge where he saw no vehicles northbound.

[37]        
He says Ms. Cross inched her vehicle forward four or five feet and
waited four or five seconds for vehicles travelling southbound to pass by her
vehicle and she was just about to turn left into the southbound lane, but still
in the northbound lane, when she was hit by the Boehlke truck.

[38]        
He says he did not even see the Boehlke truck prior to impact.

Evidence of Mr. Boehlke

[39]        
Mr. Boehlke agrees the collision occurred around 5:00 p.m. that day
under sunny conditions.

[40]        
He says he was also familiar with the area because he lived close by.

[41]        
He says he was on his way back to his place at the time in his black
1998 Toyota pick-up truck which he says was in good mechanical condition. He
says he was in no rush as he proceeded northbound on 203rd Street.

[42]        
He says he thinks he was going about the speed limit but can’t say for
sure and saw the Cross vehicle for the first time in the driveway of the
townhouse complex with the front of her vehicle flush against the sidewalk.

[43]        
At this point in time he says his truck was approximately one-half way
through the length of the parking lot on the east side.

[44]        
On an exhibit he marked the position of his vehicle where he was when he
first saw the Cross vehicle and he puts his distance at that point at
approximately 60 feet away.

[45]        
He says he never saw the Cross vehicle enter the northbound lane until a
moment before the collision and once he saw it he applied his brakes heavily
and turned left to try to avoid a collision.

[46]        
He says the point of impact was in the northbound lane but on impact his
truck was pulled to the left with the Cross vehicle continuing to move forward.

[47]        
He says he consumed no alcohol that day and no one was ticketed for the
accident nor charged.

[48]        
His previous examination for discovery was put to him when he said he
could not recall the weather that day and said he had worked that day, prior to
looking at a calendar later to see it was a Saturday and confirming he had not
been working that day.

Conclusion on Liability

[49]        
Section 176(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
requires the driver about to enter or cross a highway from a driveway or a
private road to yield the right-of-way to traffic approaching on the highway so
closely as to constitute an immediate hazard.

[50]        
An approaching vehicle is an “immediate hazard” when its driver must
take some sudden or violent action to avoid the threat of a collision if the
vehicle seeking to enter or cross a highway does not yield the right-of-way: Keen
v. Stene (1964), 44 D.L.R. (2d) 350; [1964] B.C.J. No. 130 (QL) [Keen].

[51]        
Speed and distance generally determine what constitutes an immediate
hazard: Peek v. S. Cunard & Co. (1958), 40 M.P.R. 236.

[52]        
In Keen, Mr. Justice Davey added the caution to this law
that in most collision cases estimates of time, speed and distance do not lend
themselves to mathematical analysis because the estimates are by their very
nature uncertain.

[53]        
He said the situation confronting a motorist waiting at a stop sign
calls for quick appreciation and judgment. That driver ought not to enter a
through street unless it is clear that oncoming traffic does not constitute an
immediate hazard. He said excessive refinement of what traffic is an immediate
hazard will defeat the right-of-way law that exists.

[54]        
He went on to say that waiting in a stopped position gives that person
no right to enter the highway as he/she has no right to enter the highway until
there is no approaching traffic sufficiently close to constitute an immediate
hazard. The obligation of oncoming traffic to yield to that person the
right-of-way only arises once he/she enters the highway while oncoming traffic is
far enough away to not constitute an immediate hazard.

[55]        
Finally, s. 144(1) of the Motor Vehicle Act prohibits a
person from driving a motor vehicle on a highway “at a speed that is excessive
relative to the road, traffic, visibility or weather conditions”.

[56]        
The witnesses, being the plaintiff, her fiancé Mr. Telford, and the
independent witness Ms. Pennington all say they saw Mr. Boehlke’s
truck for the first time at or near a bridge to the south of the driveway the
plaintiff was exiting from onto 203rd Street.

[57]        
No evidence was given at trial from anyone as to the name of this
bridge, where it was in relation to a hill to the south of the driveway, and
what the measured distance to the bridge or the hill was from the driveway.

[58]        
This is obviously because no one made any effort to determine these
exact distances which is indeed unfortunate since much depends on that distance
if Mr. Boehlke was there when the plaintiff came out onto the northbound
lane on 203rd Street.

[59]        
Ms. Pennington puts the speed of Mr. Boehlke’s truck at double
the speed limit of 50 km/h while allowing that she is unable to estimate the
distance to where he was when she first saw his vehicle, and admits any
estimate of his speed three years later is problematic.

[60]        
Although the plaintiff says the bridge was approximately 500 feet away,
she also admits that she is not very good at estimating distances.

[61]        
The plaintiff’s passenger, Mr. Telford, says the bridge was about
450 feet away and he could not see any vehicles northbound while they were stationed
in the driveway.

[62]        
On the other hand, Mr. Boehlke says he saw the plaintiff’s vehicle
for the first time on the driveway when his truck was approximately one-half
way through the length of the parking lot at a distance away that he says was
approximately 60 feet, and going approximately 50 km/h.

[63]        
The plaintiff says she proceeded safely across the northbound lane
before she stopped at the centre line for what she estimates to be eight
seconds to let southbound vehicles pass by her, before being struck by Mr. Boehlke’s
vehicle.

[64]        
Mr. Telford says the plaintiff waited for four or five seconds at
the centre line for southbound vehicles to pass.

[65]        
In my view, most or all of these estimates of time and distance are matters
of some speculation.

[66]        
At 50 km/h a vehicle travels approximately 44 feet per second. If Mr. Boehlke
was only 60 feet away when the plaintiff came out onto the northbound lane on
203rd Street he would have reached the plaintiff’s vehicle in approximately one
and one-half seconds at 50 km/h.

[67]        
If this was accurate as to his speed and distance he definitely would
have constituted an immediate hazard to her.

[68]        
Even if he was going faster than 50 km/h., if he was only 60 feet away
when she came out onto the northbound lane on 203rd Street he still would have
constituted an immediate hazard to her, requiring her to yield the right-of-way
to him.

[69]        
In fact, for her to come out onto the northbound lane in these
circumstances would have been very dangerous for her.

[70]        
I reject Mr. Boehlke’s estimate of speed and distance when he first
saw the plaintiff’s vehicle.

[71]        
The plaintiff says she stopped at the centre line approximately eight
seconds to let southbound vehicles clear. Mr. Telford estimates four or
five seconds.

[72]        
Whether she was stopped at the centre line eight seconds or four to five
seconds or some other time period, she was blocking potential traffic
northbound in the northbound lane while stopped there.

[73]        
In my view, this was a dangerous practice because while Ms. Cross could
gain the right of way by entering the highway as long as Mr. Boehlke was
not at that moment an immediate hazard, there was no right of her to stop in
the lane to allow traffic southbound to cross in front of her while northbound
traffic potentially approached.

[74]        
The better practice was to wait in the driveway until all southbound
traffic had passed by her before entering onto the northbound lane on 203rd
Street, and only after checking the position of northbound traffic, in order to
proceed from the driveway across the northbound lane and into the southbound
lane without stopping.

[75]        
Regardless, the most consistent evidence is that Mr. Boehlke’s
vehicle was back a sufficient distance when the plaintiff came out of the
driveway onto 203rd Street and he was travelling at an excessive rate of speed.

[76]        
If he was travelling at double the speed limit, as Ms. Pennington
says, then he would have been travelling 88 feet or so per second. If he was
400 feet back, he would have reached the plaintiff’s vehicle stopped at the
centre line in five seconds or so which would have given him sufficient time to
stop before the collision.

[77]        
If he was back 400 feet and travelling 50 km/h., he would have reached
her vehicle in eight seconds or so, well within the time needed to stop in
time.

[78]        
Either way, he would not in those circumstances have constituted an
immediate hazard to her and would have been required to yield the right-of-way
to her vehicle entering 203rd Street into the northbound lane.

[79]        
While I have great doubts about Ms. Pennington’s estimate of Mr. Boehlke’s
vehicle travelling twice the speed limit, because it is extremely difficult, if
not impossible, to accurately estimate the speed of an oncoming vehicle while
travelling towards that vehicle, I do conclude that Mr. Boehlke was
travelling well over the speed limit of 50 km/h and was a sufficient distance
back from the driveway when the plaintiff came into the northbound lane, that
he did not at that point constitute an immediate hazard to her but was required
to yield the right-of-way to her vehicle and to stop before the point of the
impact.

[80]        
It may be that whatever speed Mr. Boehlke was travelling at from whatever
distance away, he saw the plaintiff’s vehicle leave the driveway into the
northbound lane but assumed that she would continue into the southbound lane
without stopping. It may be that he was completely surprised when she stopped
at the centre line.

[81]        
However this is all speculation on my part as there was no evidence of
this conduct. With the plaintiff stopping at the centre line in the northbound
lane to allow southbound traffic to clear and being there to be seen by Mr. Boehlke
in sufficient time to stop, I am not able to impose any liability on the
plaintiff because none of her actions in stopping at the centre line in the
northbound lane constituted contributory negligence on her part causing the
collision.

[82]        
I find liability against Mr. Boehlke for 100% of the plaintiff’s
provable damages.

Damages

The plaintiff

[83]        
Prior to the motor-vehicle accident Ms. Cross was primarily
responsible for looking after their children while her fiancé, Mr. Telford,
was at work. She loved baking and did all the cooking, cleaning and household
chores. Mr. Telford did not assist with household duties according to her
evidence. Their socializing they did with others was limited as finances were
tight and their children took most of their time.

[84]        
Prior to the accident, she says her fiancé had the responsibility when
he got home from work to play with the children and do any barbequing.

[85]        
She says she and her fiancé had a rough time prior to the accident and
she thought about a marriage counsellor as she had depression and was given a
prescription for it, but never took the drug. Instead, she says they worked out
their problems leading to their present intention to be married on May 31, 2014.

[86]        
Her mother has told her in the past that the man works and she has the
table ready for dinner with a glass of water.

[87]        
Prior to the accident, she also worked part-time at her parents’ poultry
farm where she had started working as a young child and continued to work there
on a part-time basis for her entire life up to the time of the accident.

[88]        
She was initially paid $15 per hour, recently raised to $17.50 per hour.
Her mother took care of her children while she worked.

[89]        
Ms. Cross says in the months leading up to the accident she was working
there approximately 20-25 hours per week, egg-sorting, doing gardening tasks
and other heavier cleaning duties.

[90]        
She says her salary cheques were not necessarily her full salary as she
and her fiancé were paying back loans from her parents out of her salary.

[91]        
As a result of the accident and the injuries she sustained she was taken
by ambulance to the hospital and spent the next week at home on bed rest. Her
evidence is in this time period she could not do the basic activities of daily
living on her own and needed help bathing and dressing herself.

[92]        
She says her two sons were sent to stay with her mother for the first
two weeks following the accident.

[93]        
She saw her family physician, Dr. Hansen, approximately one week
after the accident with complaints of nausea, pain in her neck, upper back,
shoulders and hips. She also suffered from headaches. She says her right hip
was pushed into the centre console of her vehicle in the accident.

[94]        
She says Dr. Hansen told her to take pain pills for relief.

[95]        
Dr. Hansen did not give evidence at trial so his opinions are not
part of the record, but his clinical records were put into evidence.

[96]        
Ms. Cross says she missed a few months from work but returned in
November 2011 as her family finances were tight. She says she made this
decision on her own without any recommendation from Dr. Hansen but on her
return to work she was restricted in her work activities and focused on jobs
that did not involve manual labour.

[97]        
By six months after the accident she says she was still suffering from
headaches, neck pain, shoulder pain, upper and lower back pain, and hip pain.

[98]        
She did not see Dr. Hansen for her injuries after December 2011
until January 24, 2013, according to his clinical records.

[99]        
She did take physiotherapy treatments but says she only gained temporary
relief. It was the same for chiropractic treatments on referral from her mother
that she first took in late 2011 and again in late 2012.

[100]     She also
saw a pain specialist, Dr. Chu, in the fall of 2013 who she says gave her
back injections for pain.

[101]     In
December 2011 she found out she was pregnant with her third child and she
stopped all her medications and treatment.

[102]     She says
this pregnancy was difficult with her injuries but her third child was born
healthy in August 2012. She had worked enough hours to qualify for maternity
leave which commenced in July 2012 and lasted one year.

[103]     In the two
months prior to trial she says her headaches improved but her injuries to her
shoulders, hips and back remained and pain was present all day every day.

[104]     She says
her sleep is also affected as she is up once or twice in the night for hip and
back pain.

[105]     Presently
she says she takes medication for pain, sleep, and mood disorders or
irritability and emotion.

[106]     Her fiancé
now helps with the household duties 50% of the time, more than she says he
likes. She does not think she does her fair share of household chores.

[107]     Her mother
helps out by taking her children while she rests.

[108]     She says
that when her children are no longer small she wants to go back to work at the
poultry farm and possibly attend business school.

[109]     She also
says she and her fiancé want to buy their own poultry farm some time.

[110]     Earlier
this year she says she returned to work leaving her fiancé to do more work at
home and she intended to keep working there until she and her fiancé could
purchase their own farm or create their own business, although she has had to
take more time off before the trial. She made this decision on her own to see
if it makes a difference to her injuries and their effect.

[111]     She sees a
counsellor presently who she says encourages her.

[112]     On January
19, 2013 she saw Dr. Hyams, a general physician who practices in a chronic
pain clinic accepting referrals from doctors in British Columbia for the
confirmation of diagnoses and further management of chronic pain disorders.

[113]     She was
referred there by her lawyer. I will deal with Dr. Hyams’ evidence later
in this judgment.

[114]     Ms. Cross
says that after seeing Dr. Hyams, she saw two or three other doctors and
counsellors for her injuries.

[115]     In 2008,
she recorded total earnings on her tax return of $3,850, in 2009 $267, in 2010
$4,232, in 2011, $1,574, in 2012, $9,888, and $3,281 of employment insurance
benefits and in 2013 $3,864.32 and $6,369 of employment insurance benefits.

[116]     She says
she had almost no income in 2009 because this was the year her second child was
born and she took a long break.

[117]     She says
the debt to her parents is approximately $8,200. Her fiancé works at the
poultry farm on the weekends with all of his pay going to pay down the debt.

[118]     Dr. Sovio,
an orthopedic surgeon retained by the defence reviewed medical records for Ms. Cross
but he did not examine her.

[119]     I will deal
with his evidence later as well.

Mr. Telford

[120]     Mr. Telford
supports Ms. Cross’ evidence of her injuries and the consequences to her
health.

[121]     He
confirms that prior to the accident she had no physical complaints or limitations
and enjoyed going to the park with her children, swimming, and socializing with
family and friends.

[122]     He says
she also took care of the household chores and made dinner and took care of the
children while he helped out after work. He acknowledges he did not do much of
the household chores himself but he says after the accident he has assumed
approximately 50% of the household duties.

[123]     He says
that after the accident she was in a lot of pain in the first two or three
weeks and suffered from more stress than normal. He confirms she needed help
getting into and out of bed and getting dressed.

[124]     He says
she got slowly better in the first six months but complained all the time of
pain and headaches.

[125]     He
confirms their financial situation is always tight.

[126]     He says
she was up in the night after their third child was born in August 2012 until
the child started sleeping through the night.

[127]     He says in
2014 Ms. Cross still gets up once or twice a night at least two times per
week and in the last few months before trial still had pain, an inability to
work a full day and had good and bad days. Any heavy lifting around the house
such as gardening, and taking out the garbage is out of the question for her.

[128]     He says
the biggest issue for her is staying on top of household chores which stresses
her out.

[129]     She is not
presently working outside the home. He says their plan is to start their own farm
at some time in the future but says anytime soon appears out of the question
now. He does not think she will ever be returning to the poultry farm.

Mrs. Cross

[130]     Ms. Cross’s
mother, Mrs. Cross says she is a farmer and bookkeeper as well as
completing her bachelor of music degree.

[131]     She and
her husband own the poultry farm from which they sell eggs to other farmers.

[132]     Her
daughter has worked there since approximately age six or seven and she confirms
she was making $15 per hour at the time of the accident but since increased to
$17.50 per hour.

[133]     Her pay
was raised to $17.50 per hour because she trains other egg collectors.

[134]     Prior to
the accident her daughter was egg-collecting, gardening and doing general work
around the 26 acre farm. Egg-collecting requires a lot of standing and moving
of the arms to sort the eggs and put them into trays. At the end of the day, she
was required to clean the egg room as well.

[135]     In the six
months prior to the accident, her daughter was working 15-20 hours per week and
had no physical limitations.

[136]     Mrs. Cross
acknowledges however that her daughter did have some back and neck pain from
her 2007 accident but says it was not disabling and her daughter did not have
any headaches.

[137]     In the
past she and her husband had loaned their daughter money for such things as a
bed, a vehicle and vehicle insurance. Their daughter and her father worked out
how much of her cheques were to be held back to pay down the debt but there was
no set schedule of debt repayment.

[138]     Mrs. Cross
says that typically 50% of her daughter’s income was held back to pay down the
loans.

[139]     She also
says at some point she started taking taxes out of her daughter’s income.

[140]     She says
initially after the accident, her daughter lost 65 hours of work or
approximately $1,100 but says this did not include the money held back from her
to pay down the debt.

[141]     In the
first few weeks after the accident, she was complaining of back, neck and hip
pain and Mrs. Cross was required to take care of the children for a couple
of weeks.

[142]     By
December 2011-January 2012 she was doing better but still living with
complaints of pain although eager to return to work.

[143]     When she
did return to work she could not do the work she had done before and had to be
re-trained to do bookkeeping.

[144]     Mrs. Cross
says she did not take to bookkeeping easily and had to take breaks and her
efficiency dropped dramatically.

[145]     Mrs. Cross
says she will do everything to find a job on the farm for her daughter.

[146]     In 2014, her
daughter continues to complain of pain every day but appears to make a real
effort to push through it.

[147]     Her mother
says it is emotionally difficult for her as she prides herself on having an
organized house.

[148]     She says her
daughter was not working for the six weeks or so prior to trial as she is
taking time off to see if this makes things better for her.

[149]     Mrs. Cross
says that part of her wants to push her harder but she recognizes she does not
totally understand her daughter’s condition.

Dr. Hyams

[150]     Dr. Hyams
prepared a report of February 3, 2013 in which he diagnosed chronic fatigue
from myofascial pain syndrome as well as concurrent depression and general
anxiety. He described myofascial pain syndrome as a chronic pain lasting longer
than six months from increased tightness or knots in the muscles.

[151]     In his
report he said Ms. Cross’ depression and anxiety were partly due to her
inability to cope with her ongoing symptoms she is experiencing following the
accident, but other stressors in her life were partly responsible for Ms. Cross’
depression and anxiety.

[152]     He said he
had difficulty linking the cause of her depression and anxiety directly to the
accident as she did have previous psychological treatment prior to the
accident.

[153]     He also
observed a history of difficulty with cognition which he described as a difficulty
with the ability to focus, and a difficulty with the ability to do multi-tasks
of a higher brain function. He observed she had difficulty with subtraction.

[154]     He
diagnosed her in his report as unable to work due to her pain and fatigue. At
that time she was on employment income which he believed related to her
increased difficulties with focusing and concentration at work.

[155]     On the
basis of her complaints to him, he concluded she was unable to do the heavier
tasks at home such as making beds, cleaning the house, vacuuming and heavy
laundry. Her pain also interfered with her ability to socialize.

[156]     He also
reviewed the clinical records of Dr. Hansen and observed that on April 13,
2010 Ms. Cross was complaining of neck pain aggravated by her nursing of her
second child at that time. She was having headaches two or three times per week
from suboccipital pain and temporal pain and she was taking 400-600 mg of
Ibuprofen three times per day. Her sleep was disrupted secondarily to her neck
and head pain.

[157]     He says at
trial he asked Ms. Cross about this note in Dr. Hansen’s clinical
records and she told him she took two years to recover from her previous
motor-vehicle accident. Dr. Hyams is of the opinion that what was
significant after April 2010 was that she was able to return to her normal
duties at the poultry farm.

[158]     In his April
13, 2010 note, Dr. Hansen had also documented tenderness and tightness
over the trapezius muscles and the latissimus dorsi muscle, as well as
myofascial strain of the cervicothoracic lumbar spine and tension headaches
aggravated by her pregnancy and breast feeding.

[159]     On June
16, 2010 Dr. Hansen documented she was feeling good with no ongoing pain
documented.

[160]     Dr. Hyams
also noted from Dr. Hansen’s records that he saw Ms. Cross days after
the motor-vehicle accident on August 20, 2011 and subsequently in December 2011
and March, April and May 2012, without any evidence of ongoing complaints
related to the motor-vehicle accident.

[161]     He did not
find that record to be strange of no complaints from the accident documented on
these visits over this time period.

[162]     He
observed Dr. Hansen did give Ms. Cross a note on July 10, 2012 stating
that she was disabled from work effective immediately.

[163]     Dr. Hyams
concluded from her medical history and his examination that Ms. Cross had
almost completely recovered from her earlier motor-vehicle accident in 2007 but
had ongoing symptoms from the accident of August 20, 2011 including a whiplash
injury affecting her neck with ongoing tenderness and myofascial spasm,
bi-lateral hip pain likely associated with ongoing myofascial spasm and chronic
tension-type headaches which he considered to be a common phenomenon with
myofascial pain, but which he believed, through treatment, could lead to
improvement in the headaches.

[164]     Finally he
diagnosed depression and anxiety as referred to previously and from the medical
information provided he observed that she had suffered from depression prior to
the August 2011 accident which he said was the only pre-existing medical
condition to his knowledge that could have an impact on her soft-tissue
injuries, including her myofascial pain disorder and whiplash associated
injuries.

[165]     In his
opinion, as of February 3, 2013 she had developed a chronic pain disorder and he
says it is a common phenomenon that patients with chronic pain and pre-existing
depression can develop more severe depression as a result of the continuation
of the pain symptoms.

[166]     He said
there were multiple stressors in her life including her inability to work, her
difficulty in carrying out her role as a mother to her children, and her role
as a wife. In his opinion, all of these stressors have had an impact on her and
caused her depression to exacerbate.

[167]     He said it
was difficult to objectively assess her level of cognitive impairment and also
her degree of depression and anxiety impacting her overall functionability.

[168]     He
recommended a cervical spine x-ray to exclude degenerative changes or
instability of her neck.

[169]     He
recommended that she undergo EEG testing, possible trigger point injections, possible
occipital minor and major nerve root blocks and Botox for headaches.

[170]     He also
recommended for her depression and anxiety it would be desirable for her to
continue to see a counsellor or a psychologist for ongoing cognitive behaviour
therapy.

[171]     In his
opinion her prognosis remained guarded as a result of her ongoing severe pain
as well as her clinically significant depression and anxiety.

[172]     He said her
prognosis does deteriorate the longer the pain persists and it is further
impacted by the diagnosis of her concurrent anxiety and depression.

[173]     He does
not think she will return to her previous level of functioning.

[174]     He thinks
she could get better with the treatment he has recommended. He points out that
she had physiotherapy and chiropractic treatment in the past but not enough of
them because of a lack of finances for them and because she became pregnant.

[175]     He says if
treated initially as he has recommended he expects she would have been in
better shape than when he saw her.

Dr. Sovio

[176]     Dr. Sovio
disagrees with Dr. Hyams as to the treatments that he has proposed for Ms. Cross.
He says there is nothing to suggest any of this would be beneficial to her.

[177]     He does
not feel that she should take more chiropractic or massage treatments.

[178]     He does
believe she would benefit much more from an exercise program and perhaps a
physical rehabilitation program to improve her strength and fitness.

Submissions on Damages

[179]     Counsel
for Ms. Cross submits that by the time of the 2011 accident she had either
entirely recovered from her injuries sustained in her 2007 motor-vehicle
accident or her ongoing symptoms were so minor as to be negligible when
determining the appropriate quantum of her non-pecuniary damages.

[180]     It is
submitted that she has developed a chronic myofascial pain syndrome and her
prognosis is guarded with her unlikely to completely return to her pre-accident
level of function.

[181]     He seeks
an award of $80,000 for her general damages.

[182]     In doing
so he relies on the judgment in Werner v. Ondrus, 2013 BCSC 100 where
the plaintiff, a 23-year-old was also found to have developed myofascial pain
disorder with continuing neck and low back pain and pain in both hips. She was
still able to snowboard and wakeboard following the accident but her
participation aggravated her symptoms, her prognosis was guarded, and her
general damages were assessed at $73,000.

[183]     In McConvey
v. Hart, 2013 BCSC 1058 the plaintiff, a 49-year-old woman was found to
have pre-existing depression and in her motor-vehicle accident to have suffered
ongoing pain in her neck, shoulder, lower back and headaches, categorized as
myofascial pain syndrome. Her non-pecuniary damages were assessed at $80,000.

[184]     In Moritz
v. Schmitz, 2013 BCSC 668 the female plaintiff was 17 years of age at the
time of her motor-vehicle accident and approximately 23 years of age at trial.
She was found to have soft-tissue injuries to her neck, upper and lower back,
and shoulders as well as headaches. The symptoms were considered to be chronic.

[185]     She had a
pre-existing psychiatric illness which worsened for approximately one year
after the accident before it was found to have improved, although it was considered
to be a likely contributing factor to her chronic pain. She was awarded $80,000
for non-pecuniary damages.

[186]     Defence
counsel cites Prince v. Quinn, 2013 BCSC 716 where the plaintiff, aged
39, sustained soft-tissue injuries to her upper back and neck area with
headaches from her motor-vehicle accident. The pain was found to be constant
and substantial for an initial period of three months followed by intermittent
episodes of discomfort.

[187]     The Court
concluded that her problems would probably diminish with physical exercise. Her
award for general damages was set at $40,000.

[188]     In Sandher
v. Hogg, 2010 BCSC 1152, a 23-year-old woman was found to be suffering from
chronic pain in her back and shoulder. The court concluded there was a
realistic prospect for significant improvement in the foreseeable future, but
also a realistic prospect that she would never recover to her pre-accident
level of fitness. It was determined that she would have some continuing chronic
pain for an uncertain period of time and her general damages were assessed at
$40,000.

[189]     In Lumley
v. Balilo, 2013 BCSC 1052, a 22-year-old female plaintiff suffered
soft-tissue injuries to her neck and back in her motor-vehicle accident. Her
injuries did not incapacitate her from work or social or recreational
activities and she made significant recovery with her current symptoms being
mild and controlled through occasional non-prescription medication. She was awarded
$25,000 for general damages.

[190]     In Bray
v. Gaete, 2004 BCSC 335, the plaintiff suffered a minor soft-tissue injury
to her neck and shoulders and a moderate soft-tissue injury to her low back. It
was found that she continued to work long hours in spite of the pain where the
demands of work aggravated her low back complaints as a likely factor in their
duration and severity. She was awarded $20,000.

[191]     Counsel
for Mr. Boehlke submits the plaintiff has suffered nothing more than a
mild to moderate soft-tissue injury and an award to her should be in the order
of $25,000 to $30,000 for general damages.

[192]     In my
opinion the plaintiff’s cases reflect better the plaintiff’s injuries and their
consequences than the defendant’s cases.

Issue of mitigation

[193]     On the
issue of mitigation I accept the evidence of Ms. Cross that when she
learned she was pregnant with their third child in December 2011 she stopped
all her treatments and medications because of her pregnancy. Her third child
was born healthy in August 2012 and I have no criticism of her decision made in
December 2011 to stop her medication and treatment while she was pregnant.

[194]     As it was,
Dr. Hyams has identified a note from Dr. Hansen of June 10, 2012
stating that Ms. Cross was disabled from work effective immediately, so Dr. Hansen
obviously remained involved with her treatment.

[195]     After
August 2012 when her child was born, she took further chiropractic treatments
and saw Dr. Hyams on January 19, 2013.

[196]     The
defendant bears the burden of proving the plaintiff failed to mitigate her
damages and that involves proof the plaintiff did not take treatment as
recommended, and that recommended treatment, if taken, would have benefited
her.

[197]     Counsel for
Ms. Cross concedes Dr. Hyams did agree more mechanical treatment
during the acute stages of her recovery would have led to greater improvement
in her condition, but he submits the defendant has failed to show these recommendations
were in fact made to her during the acute stages of her recovery, and the
extent to which earlier treatment would have benefited her.

[198]    
I accept this submission. Ms. Cross took physiotherapy when Dr. Hansen
recommended it, she followed his recommendation to rest and take medication,
she resumed chiropractic treatments after her child was born in August 2012,
and I subscribe to the views as set-out in the case of Edmondson v. Payer,
2011 BCSC 118 where in para. 36 it was said:

…For example, the absence of
reference to a symptom in a doctor’s notes of a particular visit cannot be the
sole basis for any inference about the existence or non-existence of that
symptom. At most, it indicates only that it was not the focus of discussion on
that occasion.

[199]    
Similarly in para. 37 it was stated:

…But a plaintiff whose condition
neither deteriorates nor improves is not obliged to constantly bother busy
doctors with reports that nothing has changed, particularly if the plaintiff
has no reason to expect the doctors will be able to offer any new or different
treatment.

[200]    
Similarly in Myers v. Leng, 2006 BCSC 1582 the Court said at para. 50:

…His decision not to continue to
see a doctor about his neck and back complaints was clearly based on a
reasonable conclusion that the doctors could only provide temporary relief from
the pain by prescribing medication and physiotherapy.

[201]     These
comments certainly reflect the relationship between Ms. Cross and Dr. Hansen.
He told her to take rest and medication. She did that. She had no reason to see
him again about these motor-vehicle injuries unless there was some change in
her condition because she already knew what his recommendations were.

[202]     I conclude
that the defendant has failed to prove that Ms. Cross failed to mitigate
her damages by visiting Dr. Hansen more often and taking further treatment.

Assessment of general damages

[203]     There is
another issue, however, that does impact the plaintiff’s claim for general
damages, past wage loss, and loss of future income earning capacity.

[204]     This issue
is the lingering effects of her injuries from her 2007 motor-vehicle accident. Mr. Boehlke
has no responsibility for these injuries or their lingering effects. He only
has a duty by way of damages to put the plaintiff in the condition she was in
prior to the August 20, 2011 motor-vehicle accident.

[205]     The plaintiff
may have returned to full-time duties after the 2007 accident, but her mother
has acknowledged that she had some residual back and neck pain from her 2007
accident. Dr. Hansen’s note of April 13, 2010 indicates neck pain
aggravated by nursing her second child, headaches two or three times per week,
disturbed sleep secondarily to her neck and head pain and the taking of
Ibuprofen, an anti-inflammatory agent three times per day.

[206]     In
addition, Dr. Hyams also said that while her depression and anxiety was
partly due to her accident injuries, other stressors in her life are also
partly responsible. He said he had difficulty linking the cause of her
depression and anxiety directly to the accident which I conclude means he was
not able to make that causal connection.

[207]     I conclude
some of these stressors unrelated to her motor-vehicle injuries are the ongoing
state of her marriage, her anxiety about taking care of the house, her children
and her husband, and meeting the expectations of her mother of being a good
housewife and mother.

[208]     Dr. Hyams
says her depression pre-accident could have an impact on her accident injuries,
even though he also says her chronic pain and pre-existing depression can
develop into more severe depression.

[209]     Taking all
of these concerns into account it is my conclusion the plaintiff’s award for
general damages should be $70,000.

Past wage loss

[210]     Plaintiff’s
counsel refers to the letter from Mrs. Cross that the plaintiff lost 65
days of work initially for a total of $1,100 of lost income, and her evidence this
did not include the money held back from her to pay down the loan to her
parents.

[211]     Plaintiff’s
counsel says that would raise the amount to approximately $2,200 if her parents
were taking 50% of her income. However, he submits an award for this claim of
$1,500 would be appropriate.

[212]     The
defendant’s counsel submits the plaintiff has not satisfied her onus of proving
a claim beyond $1,100 as her time off work was not medically supported.

[213]     I accept
plaintiff’s counsel’s submission $1,500 past wage loss to allow for her
parent’s taking some of her income to pay down the debt to her parents. An
injured party does not have to seek medical support for time off work during
the acute stages of recovery, in my opinion. In any event, Dr. Hansen advised
her to rest.

Loss of future income earning capacity

[214]     Future
income earning capacity is a capital asset of a person. It is to be assessed
and not calculated although often calculations can form the basis for an
appropriate assessment.

[215]     Ms. Cross
has worked her entire working life at her parent’s farm. She does not say that
she has any intention of working elsewhere in the future. She only says she and
her fiancé want to own their own farm someday.

[216]     Simply
saying that they have a plan to own their farm someday, by itself, does not
provide the necessary evidentiary basis for assessing her loss of future income
earning capacity on that possibility.

[217]     Her mother
says she will do to everything she can to find a job on the farm for her
daughter. In view of her work background, it is my conclusion that absent this
accident and her injuries Ms. Cross would have continued working at her
parents’ farm until she and her fiancé had enough money to purchase their own
farm. Whether they ever would have had enough money to purchase a farm on their
own is a matter that will remain as speculation.

[218]     Plaintiff’s
counsel submits the plaintiff’s evidence is that her plans were to increase her
hours at her parents’ farm to full-time once her youngest child reaches school
age. She also says she possibly would have attended business school.

[219]     Dr. Hyams’
opinion is that her prognosis remains guarded as a result of her ongoing pain.

[220]     He also
says other stressors in her life are partly responsible for her depression and
anxiety and he has difficulty linking the cause of her depression and anxiety
to the motor-vehicle accident.

[221]     He does
not believe the plaintiff will return to her previous level of functioning,
although he does recommend certain medical procedures to alleviate her pain.

[222]     I accept these
opinions.

[223]     Plaintiff’s
counsel submits on the evidence there is a real and substantial possibility Ms. Cross’
limitations will result in a capital loss to her of her future income earning
capacity. I agree.

[224]     Plaintiff’s
counsel submits that the most likely employment prospect for Ms. Cross in
the future would have been an increase of her hours at the farm to full time, as
it was the only employment she has ever known and it is unlikely that her
education and skill set could offer her any job prospects that would ever pay
comparably to employment at her parents’ farm. I agree.

[225]     Plaintiff’s
counsel submits that if the plaintiff can only continue to work part-time on
the farm and never be able to work full-time, she will lose up to 15 hours of
work per week over the remaining time of her working life to age 65 and her
loss of gross wages will be in the order of $466,200.

[226]     This is
not a present value amount which allows for investment of the capital amount
through the years while taking into account the effect of income tax. It is
this net amount that is missing from the evidence for the purpose of providing
a basis for a loss of future income earning capacity award.

[227]     Plaintiff’s
counsel goes on to deal with contingencies by allowing for the possibility of Ms. Cross
still being able to return to full-time work at the farm, or deciding to have
more children and remaining at home as a mother.

[228]     However,
he submits that while all these contingencies he considers are unlikely, a
reasonable award for loss of future income earning capacity should be $150,000.

[229]     Defence
counsel submits that there is no loss of future income earning capacity proven
and the claim should be dismissed. He submits the evidence falls far short of
the requirement of proving a real and substantial possibility of a future loss
of income earning capacity.

[230]     Even
though I agree the plaintiff’s parents will provide her with as many hours as
she can work at the farm in the future, it is my conclusion that her parents
are not going to pay her for no work at all.

[231]     It is my
conclusion that there is a real and substantial possibility that the plaintiff
will suffer a loss of future income earning capacity at her parents’ farm in
the future because I accept Dr. Hyams’ opinion that she will never return
to her former level of functioning.

[232]     Taking all
of the evidence into account as well as the contingencies I consider a fair
award for loss of future income earning capacity is $100,000.

Special damages

[233]     Special
damages are ordered in the amount as claimed of $1,834.

Summary

(a)  Non-pecuniary damages are
assessed at $70,000.

(b)  Past wage loss is assessed
at $1,500.

(c)  Loss of future income
earning capacity is assessed at $100,000.

(d)  Special damages are ordered
in the amount of $1,834.

(e)  The plaintiff will have her
costs of the action.

“The Honourable Mr. Justice Truscott”