IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141202

Docket: M095398

Registry:
Vancouver

Between:

Ann Chong

Plaintiff

And

Chi Yong Lee and
John Lee

Defendants

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

INTRODUCTION

[1]            
This is an assessment of damages for injuries sustained by the
plaintiff, Ann Chong, in a motor vehicle accident which occurred on December 1,
2007 at the intersection of Fraser Street and East 33rd Avenue in Vancouver, British
Columbia.  The plaintiff, who was 48 years old at the time, was the seat-belted
driver and sole occupant of her vehicle.  Ms. Chong, who was driving northbound
on Fraser Street, had brought her vehicle to a stop at the intersection when a
vehicle driven by the defendant Chi Yong Lee and owned by the defendant John
Lee struck her vehicle from behind.

[2]            
Liability is admitted.

[3]            
The plaintiff claims that she suffered soft tissue injuries to her low
back, mid back, upper back, neck and right shoulder, headaches, sleep
disturbance, emotional distress, anxiety and depression as a result of the
defendants’ negligence.  At the time of trial, more than six years after the
accident, the plaintiff continued to complain of chronic pain.  Ms. Chong also
maintains that her injuries have prevented her from returning to the workforce,
as she planned to do after her younger daughter graduated from high school in
2011.  The plaintiff claims non-pecuniary damages, damages for loss of past and
future earning capacity and costs of future care, damages for loss of
homemaking capacity and special damages of $48,666.76.

ISSUES

[4]            
The issues raised in this action are:

(a)      What injuries did the plaintiff suffer as a
result of the December 1, 2007 motor vehicle accident?

(b)      Did the accident cause or contribute to the
plaintiff’s ongoing complaints of chronic pain?

(c)      What
amounts, if any, are payable to the plaintiff for non-pecuniary damages, past
and future loss of earning capacity, cost of future care, loss of homemaking
capacity and special damages?

[5]            
In addressing these issues, it will be necessary to assess the
credibility and reliability of the plaintiff’s evidence.

POSITIONS OF THE PARTIES

The Plaintiff

[6]            
The plaintiff submits that but for the motor vehicle accident of
December 1, 2007 she would not have experienced the chronic pain in her lumbar
and thoracic spine, neck and right shoulder, or the sleep disruption and
anxiety that continue to afflict her.

[7]            
 Ms. Chong says that, absent the accident, she would have returned to
the workforce in the fall of 2011 after her younger daughter, Valerie, left
home to attend university. The plaintiff left the workforce in the fall of 1993
in order to care for her two young children.  She submits that her injuries
have impaired her ability to upgrade her skills or to return to work in a
retail position.  Ms. Chong maintains she has suffered an annual loss of
earning capacity of $30,000 to retirement at age 65.

[8]            
The plaintiff says that before the accident she was a meticulous
housekeeper who performed the bulk of the homemaking activities for her
family.  She submits that taking into account the time others now spend in
performing services she used to provide, her loss of efficiency in performing
housekeeping tasks and the loss of services that are no longer performed at
all, she has suffered, and will continue to suffer a loss of homemaking
capacity equivalent to about 10 hours per week.

[9]            
Ms. Chong submits that her chronic pain, disrupted sleep, fatigue and
anxiety have impaired her relations with her husband and daughters and have
limited her social relationships to the point where she rarely entertains and
has reduced her contact with her friends.  In short, the plaintiff contends
that the injuries she suffered in the accident have had a profound and
detrimental effect on her life.

The Defendants

[10]        
The defendants accept that Ms. Chong suffered mild soft tissue injuries
in the accident.  However, they contend that the plaintiff had substantially
recovered from her injuries by the summer of 2008 and that her injuries caused
by the accident had essentially resolved either by December 2010, or by
mid-2011 at the latest.

[11]        
The defendants submit that Ms. Chong’s continuing complaints are
entirely subjective, disproportionate to her injuries and have continued well
beyond the normal course of recovery for a Grade 1 whiplash.

[12]        
According to the defendants, the plaintiff is neither a credible nor a
reliable witness.  Her evidence at trial was repeatedly impeached when she was
confronted with prior inconsistent statements from her examination for
discovery.  The defendants say that since 2011 the plaintiff has increasingly and
obsessively focused on the accident, its perceived effects, and the litigation
process.

[13]        
The defendants argue that the plaintiff’s damages should be limited to a
modest award for pain and suffering and loss of enjoyment of life, reasonable
and medically justified special damages, and a nominal award for cost of future
care.  The defendants dispute that the plaintiff had any vocational plan at the
time of the accident.  They say Ms. Chong has led no evidence about how long
she would have worked or whether she would have worked part-time or full-time. 
The defendants submit that the plaintiff has not met her onus of establishing a
real and substantial possibility of a future event leading to income loss. 
Similarly, the defendants argue that the plaintiff has not established a loss
of past or future homemaking capacity.  Rather, they say her evidence goes no
further than showing that Mr. Chong helped out with shared domestic
responsibilities while the plaintiff was in the initial stages of her recovery
from a mild whiplash disorder.  As for special damages, the defendants submit
that many of the expenses claimed were incurred after the plaintiff had
recovered from her injuries, and that the plaintiff continued to incur expenses
for therapies she pursued contrary to medical advice.

BACKGROUND FACTS

The Plaintiff’s Original Condition

[14]        
Ms. Chong did not suffer from neck, back or shoulder pain, or indeed any
chronic pain before the accident.  She had no previous history of insomnia,
anxiety or depression.

[15]        
After graduating from high school in 1977, Ms. Chong married her
husband, Felix Chong, in 1981.  The plaintiff and her husband have two
children, Stephanie, born in 1986, and Valerie, born in 1993.  Stephanie Chong
now lives independently in Vancouver while Valerie has attended university in
Waterloo, Ontario since 2011.  For the last 20 years, Mr. Chong has been
employed by Telus as a Senior Technology Specialist.

[16]        
At the time of the accident, Ms. Chong was a busy homemaker.  While her
elder daughter had left home to attend university in Ontario, Valerie, who was
then 14, was heavily involved in extracurricular music programs at both her
school and the Vancouver Music Academy.  Before the accident, Ms. Chong would
typically drive Valerie to school at 7:30 a.m., then return home to do the
housekeeping and prepare the evening meal before returning to Valerie’s school
to pick her up and transport her to and from her music lessons at the Vancouver
Academy of Music.

[17]        
Ms. Chong had a close relationship with both her daughters.

[18]        
Ms. Chong took pride in her home.  She was described by her husband and
by a friend, Deanna McGregor, as a meticulous housekeeper.  Before the
accident, the plaintiff did most of the cleaning, grocery shopping, cooking and
gardening, although Mr. Chong helped her with heavier tasks.  Ms. Chong enjoyed
cooking for her family, both throughout the week and on special occasions.  She
was outgoing, and took pleasure in entertaining neighbours and her friends.

[19]        
The plaintiff’s evidence that she took particular pleasure in her garden
is supported by the testimony of her friends, Deanna McGregor, Margaret Chow
Liu and Alice Chin, as well as by the evidence of Felix, Stephanie and Valerie
Chong.

[20]        
Before the accident, for exercise, the plaintiff walked with her husband
or with friends, typically for up to an hour and a half at a time.  She was not
active in other sports or recreational activities.

[21]        
The plaintiff and her husband enjoyed road trips to Seattle, Portland,
Los Angeles and Alberta.  Before the accident, she had no difficulty sitting in
a vehicle for long periods.

[22]        
Turning to Ms. Chong’s pre-accident education and employment, following
her graduation from high school in 1977, the plaintiff took courses at Langara
College and later BCIT, where she obtained a certificate in advertising and
public relations in 1981 and a certificate in marketing in 1986.

[23]        
After leaving high school, the plaintiff worked for the Chinese Cultural
Centre for one year teaching citizenship classes.  From 1978 to 1984, she
worked part-time, and later full-time as a costing clerk for an electrical
contractor.  From 1984 through 1985, she was employed as an assistant manager
at a clothing store.  In 1986, the plaintiff began to work part-time at
Woodward’s.  She accepted a full-time position at Woodward’s in 1987, was later
promoted to the position of assistant to a buyer, which she held until December
1991.  Ms. Chong testified that in late 1991 she left Woodward’s, which was
then in financial difficulty, to take a sales position at Fabricana, a textiles
retailer, where she worked until Valerie’s birth in February 1993.  After her
maternity leave, she returned to Fabricana in August 1993 and remained there
until October 1993 when she decided to devote all of her time to raising her
two young children.

[24]        
Ms. Chong testified that she earned about $29,000 a year at Fabricana,
inclusive of her annual bonus.

[25]        
Ms. Chong had not returned to the workforce before the accident.  The
plaintiff testified that in 2007 she had submitted applications for employment
to Hudson’s Bay and Winners’ stores in Metrotown mall in order to “test the
waters” for employment in retail, although she did not intend to return to the
workplace until Valerie graduated from high school in 2011.

The Accident

[26]        
The plaintiff had stopped her RAV 4 vehicle and was facing forward when
she was struck from behind by the defendants’ Toyota Corolla.  Ms. Chong was on
her way to have Valerie’s violin bow re-strung.   Ms. Chong recalled a loud
impact and testified she was immediately overwhelmed by the noise of the
impact.  Although the plaintiff was able to exit from her vehicle on her own,
she said she felt uneasy, and returned to her car.  She called her husband, and
asked him to bring his camera.  Mr. Chong arrived about five minutes later and
took a number of photos at the accident scene.

[27]        
Ms. Chong testified that she was in a state of shock.  She did not
recall experiencing pain at the time of the accident.  Mr. Chong drove the
plaintiff to have the violin bow re-strung and then dropped her off at the
scene of the accident.  Ms. Chong was able to drive her vehicle the short
distance to her home.

[28]        
The plaintiff’s RAV 4 sustained damage requiring $5,346 in repair
costs.  The Insurance Corporation of British Columbia declared the defendants’
vehicle a total loss.  The Court heard no evidence of the speed of the
defendants’ vehicle at the point of impact.  However, I infer from the evidence
of the damage to both vehicles that the impact involved at least moderate
force.

THE PLAINTIFF’S CONDITION POST ACCIDENT

The Plaintiff’s evidence

[29]        
The plaintiff testified that she began to experience pain in her right
neck and shoulder on the late afternoon of December 1, 2007, which became
progressively worse that night and over the remainder of the weekend.  She
began to experience difficulties sleeping shortly after the accident.

[30]        
Because Ms. Chong’s family doctor, Dr. Heather Jenkins was away from her
office, the plaintiff first saw Dr. Jenkins’ locum, Dr. Fiona Duncan, on Monday
December 3, 2007.  The plaintiff reported pain in her lower back, right upper
back, her right neck and right shoulder.  Dr. Duncan noted that the plaintiff
had full range of motion in her neck but with pain at the full range of motion
in all directions.  Dr. Duncan prescribed Tylenol 3 and referred the
plaintiff for physiotherapy.  Between December 6, 2007 and mid April 2008, Ms.
Chong attended 39 sessions of physiotherapy at West 4th Physiotherapy.  Ms.
Chong found that some sessions provided temporary relief, but she obtained no
consistent benefit from the physiotherapy.

[31]        
Ms. Chong also saw a kinesiologist and received acupuncture treatments
through West 4th Physiotherapy in 2008.  In addition, with Dr. Jenkins’
approval, Ms. Chong began restorative yoga classes in early 2008 and started to
exercise in the gym at the Sunset Community Centre between three and five times
per week.

[32]        
On the recommendation of Dr. Jenkins, Ms. Chong participated in an
active rehabilitation program at KARP Rehab during April and May 2008.  Ms.
Chong testified that she felt stronger after finishing the KARP program and
that she felt better for a while following the end of that program in late May
2008.

[33]        
The plaintiff continued her physiotherapy after the KARP program, and in
early 2009, began training with a personal trainer at the Langara YMCA.

[34]        
In November 2008, Dr. Jenkins first prescribed Tramacet to assist with
pain relief, and Zoplicone to assist with the plaintiff’s continuing sleep
disturbance.

[35]        
On December 4, 2008, the plaintiff began to receive intramuscular
stimulation (IMS) treatment from Matthew Powell, a physiotherapist at West 4th
Physiotherapy.  Although this therapy, which involved the insertion of multiple
needles at trigger points in her back, neck and shoulder muscles, was painful,
the plaintiff found that it produced significant, if temporary reductions in
her pain.  Mr. Powell testified that he observed increases in the plaintiff’s
reported pain and muscle tightness when she was stressed, when she reported
difficulties at home, when she had changed her medication, or if she was
exercising too aggressively.

[36]        
Although Dr. Weiss, a physiatrist to whom Dr. Jenkins referred the plaintiff,
recommended in December 2008, January 2009 and February 2009 that Ms. Chong
limit the IMS treatments unless they were providing longer term benefits, Mr.
Powell provided 102 IMS treatments to Ms. Chong between December 4, 2008 and
May 15, 2013.

[37]        
From September 2009 through September 2012, Ms. Chong received massage
therapy treatments from Mr. Andrew Peters.  Mr. Peters testified that he did
not observe any substantial variation in the plaintiff’s symptoms, although
they increased and decreased throughout the three years he treated Ms. Chong. 
According to Mr. Peters, fluctuations in the plaintiff’s pain and stiffness
were attributable to many factors, including how much she was sitting, whether
she was working out, and other stressors in her life.  Mr. Peters gave evidence
that he observed the plaintiff to be despondent and in significant pain during
several sessions through the course of his treatment.

[38]        
Mr. Peters also testified that he repeatedly discussed with the
plaintiff her poor “head forward” posture.  He agreed that Ms. Chong’s poor
posture could cause pain in her neck.

[39]        
On November 19, 2009, Mr. Peters noted that the plaintiff’s tissue tonus
– a measure of tissue health – was the best that he had ever seen despite Ms.
Chong’s denial of improvement.  In cross-examination, Mr. Peters agreed that
there was a disharmony between Ms. Chong’s subjective complaints and his
objective findings.

[40]        
Mr. Peters also gave evidence that Ms. Chong’s massage therapy
treatments in 2011 were largely concerned with her postural issues.

[41]        
Mr. Peters thought that Ms. Chong attended his treatments in part for
support and validation.  Mr. Peters said that he likes his patients to be more
autonomous and had encouraged the plaintiff to engage in self-care, and to
reduce her dependency upon him.

[42]        
Ms. Chong testified that she and Dr. Jenkins discussed reducing the
frequency of her treatments, including both the IMS and massage therapy
sessions.  The plaintiff understood that Dr. Jenkins wanted her to taper off
and eventually stop these treatments.  However, the plaintiff found that when
she did stop, her pain increased, as did her sleep disruption.   Ms. Chong
testified that her ability to function and to perform daily activities was
reduced when she stopped these therapies.

[43]        
In February 2012, the plaintiff began a weekly exercise program with
Mr. Scott Andrews, a personal trainer at the downtown YMCA.  Mr. Andrews
testified that over the one and a half years that he trained the plaintiff, she
was consistently willing to work hard on an exercise program aimed at
strengthening and stabilizing her core muscles.  Despite her efforts, Ms. Chong
has difficulty mastering the proper exercise techniques.

[44]        
 Mr. Andrews also worked on improving the plaintiff’s posture throughout
her training.  Like Mr. Powell and Mr. Peters, Mr. Andrews testified that
changing one’s posture can be quite difficult.  He said that it may take
decades to realize lasting improvement in posture.

[45]        
In September 2012, on the advice of the physiatrist, Dr. Weiss, Ms.
Chong suspended her IMS treatments with Mr. Powell and her deep tissue massage
therapy.  The plaintiff and her husband both testified that her complaints of
pain increased while she was not receiving these therapies.

[46]        
In April 2013, on the recommendation of Dr. Weiss, the plaintiff
attended the UBC Sleep Clinic where her sleep was monitored and she was
diagnosed as suffering from obstructive sleep apnea.  Dr. Jenkins testified
that condition was not caused by the motor vehicle accident.  However, she
thought that the plaintiff’s chronic pain was also a significant contributing
factor to her disruptive sleep.

[47]        
In December 2012, Dr. Jenkins referred Ms. Chong to Dr. Pamela Squire, a
physician who restricts her practice to pain management.  Ms. Chong, on Dr. Squire’s
recommendation, attended an eight-week chronic pain self-management program
offered through the University of Victoria, attended a pain support group, and received
further massage therapy from a new therapist, Mr. Mark Finch.  These programs
and therapies were aimed at assisting the plaintiff in learning to manage her
chronic pain.

[48]        
Dr. Jenkins also referred the plaintiff to a psychologist, Dr. Mark
Lau.  Between March 2013 and the time of trial, Ms. Chong attended 25 cognitive
behavioural therapy (CBT) sessions with Dr. Lau.  Ms. Chong testified that the
CBT is teaching her to understand her pain and to identify triggers for her
depression.  She also found the techniques for mindfulness meditation taught by
Dr. Lau were helpful in calming her thoughts and reducing her pain
symptoms.  At her first session, the plaintiff reported to Dr. Lau that she
felt guilt, anxiety and anger, had a low mood, worried about the effects of her
medications and about driving, worried about travelling due to her pain, and
that she experienced nightmares that interfered with her sleep and
significantly reduced her ability to function.  Dr. Lau administered a
depression inventory on which the plaintiff reported difficulties with
concentration, low energy, sad and depressed mood, and a sense of worthlessness
and hopelessness.  The plaintiff also reported passive suicidal thoughts.  By
mid- October 2013, the plaintiff’s suicidal ideation had escalated to the point
where Ms. Chong talked about taking medication to commit suicide.  Some of Dr.
Lau’s sessions focused on assisting the plaintiff to manage suicidal ideation. 
Ms. Chong testified that due to her attachment to her daughters she would never
act on her suicidal thoughts.

[49]        
Dr. Lau testified that after 25 sessions of treatment, Ms. Chong’s
reported symptoms of anxiety and depression were the same or worse than when
she began her therapy.  Dr. Lau gave evidence that throughout his treatment the
plaintiff frequently complained of sleep disturbance.  He said that her
disturbed sleep could have affected her reporting of other symptoms.

[50]        
In May 2013, on Dr. Jenkins’ referral, the plaintiff began attending the
ChangePain clinic where she received treatment from Dr. Brenda Lau, a
specialist in pain medicine.  Her treatment has included IMS sessions, trigger
point injections, and Lidocaine infusions.  Ms. Chong testified that she
experienced at 75% reduction in her level of pain following the first Lidocaine
infusion in October 2013.  Following this treatment, the plaintiff said that
she was able to sit through a movie, and to attend a symphony and an opera. 
She also enjoyed some relief from her headaches.  The initial Lidocaine
infusion appears to have provided the plaintiff with significant relief for
about three months.

[51]        
Dr. Jenkins testified that by the time of trial, the physicians at the
ChangePain clinic had assumed the primary management of the plaintiff’s chronic
pain.  On Dr. Brenda Lau’s recommendation, the plaintiff was continuing
physiotherapy.  At the time of the trial, Ms. Chong was also practising yoga,
walking, performing the exercises provided by her physiotherapist and also
exercising in her home gym and at the downtown YMCA.

[52]        
Ms. Chong is frustrated and angered by the persistence of her symptoms. 
She testified that she takes her frustration and anger out on her family and
friends.  Mr. Chong confirmed that the couple quarrel more frequently than they
did before the accident.  He said that as a result of the plaintiff’s disrupted
sleep, they have occupied separate bedrooms since shortly after the accident.

[53]        
Mr. Chong, the plaintiff’s daughters, and her friend Ms. Chin all
testified that the plaintiff’s conversation frequently focuses on her pain and
symptoms.  The plaintiff testified that after the accident her concerns about
her pain and her preoccupation with her own circumstances led her to pay less
attention to the needs of Valerie.  She that her relationship with both of her
daughters, and particularly Valerie, had weakened.  Mr. Chong gave
evidence that both Stephanie and Valerie now confide more in him than they do in
their mother, and that this is a complete reversal from the way things were
before the accident.

[54]        
The plaintiff testified that her pain and fatigue have diminished her
social life and that since the accident she has been unable to host Christmas
parties or other large gatherings.

[55]        
Ms. Chong testified that while she is still able to perform some
housekeeping tasks, she has difficulty cleaning the windows, or carrying
equipment to wash the floors.  The plaintiff testified that she is no longer
able to maintain the same standard of cleanliness that prevailed before the
accident.  Both the plaintiff and Mr. Chong estimated at the trial of trial,
Mr. Chong spent approximately 10 hours a week doing housework that he did not
perform before the accident.

[56]        
With respect to the garden, Ms. Chong testified that her pain prevents
her from digging, turning soil and mulching and said that she finds it
difficult to bend down to put plants in the ground.  Mr. Chong testified that
his wife still enjoyed spending time in the garden, and that typically she
would spend 30 to 45 minutes at a time either watering or puttering about in
the garden.

[57]        
On road trips since the accident, the plaintiff has experienced pain
from prolonged sitting and finds that frequent stops are necessary to enable
her to stretch.

[58]        
In May 2008, the plaintiff and Mr. Chong travelled to Kingston, Ontario
to attend Stephanie’s graduation ceremony.  The plaintiff experienced some
discomfort on the flight to Toronto and the drive to Kingston, but was able to
sit through the 2.5 hour graduation ceremony.  In 2010, the plaintiff and Mr.
Chong went on a cruise from Seattle to Alaska.  Again, the plaintiff
experienced some pain and discomfort. She chose not to participate in a shore
excursion because she did not think she would be able to cope with the motion
of car or bus transportation to nearby ice fields.  While the plaintiff has
continued to travel since the accident, she has done so with some restrictions
and diminished enjoyment.

Credibility and Reliability of the Plaintiff’s Evidence

[59]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186,
as follows:

Credibility involves an assessment
of the trustworthiness of a witness’ testimony based upon the veracity or
sincerity of a witness and the accuracy of the evidence that the witness
provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50
D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[60]        
If the plaintiff’s account of his or her change in physical, mental, and
or emotional state as a result of the accident is not convincing, then the
hypothesis upon which any expert opinions rest will be undermined: Samuel v.
Chrysler Credit Canada Ltd., 2007 BCCA 431, at paras. 15, 49-50.

[61]        
In cross-examination, Ms. Chong’s testimony was repeatedly impeached
when prior inconsistent statements from her examination for discovery were put
to her.

[62]        
The plaintiff testified that her husband drove her to her first doctor’s
appointment following the accident on December 3, 2007.  On her examination for
discovery of June 16, 2011, when Ms. Chong was asked, at question 153 how she
got to her doctor, her evidence was “I believe I drove.”  When asked if her
answer on discovery was true, Ms. Chong responded “I guess so.”

[63]        
When asked in cross-examination whether she learned about posture at
physiotherapy, the plaintiff said she did not know how to answer.  She was then
referred to questions 315 to 318 from her discovery where she said that the
physiotherapist talked about posture.  When asked in cross-examination whether
Matthew Powell had talked to her about posture, the plaintiff responded
“possibly”.  She professed not to remember whether Matthew Powell had spoken to
her about posture, but when pressed agreed that he had done so.  Ultimately,
the plaintiff acknowledged that she had been told repeatedly by her therapists
to work on her posture.

[64]        
In cross-examination, the plaintiff denied that she sat through the full
two and a half hours of her daughter Stephanie’s convocation.  She said she got
up and left during the ceremony.  Ms. Chong was then referred to her
examination for discovery where, at questions 428 and 429 she said she sat for
two and a half hours and could not get up and move around because of the
seating.  Ms. Chong did not deny giving that answer but maintained that she did
leave the convocation in the middle of the ceremony.

[65]        
The plaintiff acknowledged that by the time of trial she had received
about five years of personal training and that her strength had continued to
improve during that training.  When defendants’ counsel suggested that Ms.
Chong had learned a lot from her personal trainers and physiotherapists, she
became argumentative and asserted that she had “learned some” from the
physiotherapists.  On the continuation of the plaintiff’s examination for
discovery on December 18, 2013, at questions 1254 to 1256, Ms. Chong had agreed
that she had learned a lot from the personal trainers and from her physiotherapists
about exercise.  When cross-examining counsel persisted, Ms. Chong agreed that
she had received a lot of guidance from physiotherapists, personal trainers and
KARP about exercising, and that Dr. Jenkins had told her she should become
independent of physiotherapy and massage therapy.

[66]        
On cross-examination, Ms. Chong acknowledged that it was possible that
by June 2011 she was having more good days than bad days.  On her discovery of
June 16, 2011 at questions 408 to 409, the plaintiff agreed that it was fair to
say that she then had more good days than bad days.

[67]        
Also on that discovery, at questions 325 to 332, the plaintiff was asked
about her mobility issues.  Ms. Chong gave evidence that she had difficulty
turning her neck sometimes; that it sometimes affected her driving; and that
sometimes it was difficult for her to do chores at home like gardening and
cleaning.

[68]        
The plaintiff agreed that while that was her status in June 2011, by the
time of trial she was doing more grocery shopping and more cleaning.

[69]        
On her discovery of June 16, 2011, Ms. Chong, when asked what she could
then not do around the house, identified window cleaning, an activity she did
once a month.  At pages 64-65, questions 493 to 504, she gave the following
evidence:

Q       Well, what is it you can’t do around the house
still?

A        I haven’t washed the windows, climbed up a
ladder for a while since, well, since before the accident. I haven’t been able
to do that.

Q       Okay. That’s not a regular thing that you
would do though, is it, washing the windows?

A        Well, I did it once a month.

Q       Okay. Leaving aside the once-a-month activity,
what is it on a daily basis that you still can’t do?

A        I don’t know if there is anything I can’t do.
I think I limit          what I do because I am concerned about causing any other
increased tension or pain.

Q       Okay, and that was my point. Have you talked
to somebody about that?

A        No.

Q       Why not?

A        Uhm, I don’t know. I, I don’t know if I have talked
to my doctor about that yet.

Q       Has anybody told you that you suffered some
sort of injury that it will get worse or something if you try to do more
activity?

A        Not that I recall.

Q       Okay. Haven’t you been told actually to be as
fit as you can and resume as many normal activities as you can?

A        I don’t recall anybody saying that.

Q       Okay. So, this is just your concern on your
own that, at the three and-a-half year mark, if you do too much, you might, you
might cause  more problems?

A        It’s a concern.

Q       Okay, but not something you have discussed
with a medical professional?

A        I don’t recall if I did.

Q       Okay. But is that why you limit yourself, because
you are concerned that you might, you might hurt more or something?

A        I think           there is always a concern
of that.

Q       Is that why you limit yourself though? Is that
the reason?

A        I don’t know.

Q       Well, is there another reason?

A        Not
that I can think of.

[70]        
When asked if those answers were true, Ms. Chong said they were “true at
the time”.

[71]        
On the continuation of her examination for discovery, Ms. Chong gave the
following evidence in answer to questions 1385 through 1391:

Q       Can you do all the basic cleaning except
perhaps the vacuuming?

A        Can you define?

Q       Cleaning counters, washing dishes.

A        Yes.

Q       You can — general maintenance, general
cleaning, sorry.

A        Some.

Q       But can you do dusting, keeping counters clean,
those sort of things?

A        Dusting at my level. If I have to get up
high, no.

Q       What if you get up on a ladder?

A        I find it difficult sometimes.

Q       But is it fair to say that the main help you
need is with heavier such as vacuuming?

A        Yes. And windows.

Q       Can you clean toilets and sinks, things like
that?

A        Yes.

[72]        
At trial, Ms. Chong agreed that before the accident, her husband did
some of the vacuuming.

[73]        
The plaintiff testified she had talked to Dr. Jenkins about returning to
work but could not remember when she did so.

[74]        
At question 528 of her examination for discovery, Ms. Chong said that
she did not think she had ever discussed with any medical people whether she
could go back to work.

[75]        
Dr. Jenkins noted that after the accident, the plaintiff on many
occasions had expressed interest in returning to the work place, although to
her knowledge, Ms. Chong did not have a clear vocational aspiration.

[76]        
At trial, the plaintiff gave evidence that in 2012 she had taken a
course in cardiopulmonary resuscitation (CPR) for which she received her CPR
certificate.  Ms. Chong claimed that she had received her certificate without
doing everything physically required to complete the course.  In
cross-examination, she said she had knelt down on the ground and worked on the
CPR dummy for maybe a minute or two.  On her examination for discovery of
December 18, 2013, at questions 1410 to 1411, the plaintiff was unable to
recall how she practiced on the dummy.  She said it was possible she knelt on
the ground, but that she did not recall.  In light of Dr. Squire’s evidence
that a person would not receive the certificate without demonstrating she could
successfully perform CPR, I find the plaintiff’s evidence that she was awarded
her certificate without completing all of the course requirements to be
implausible.

[77]        
At questions 629 to 633, the plaintiff acknowledged that there were
activities that she could do, including small lifting, small carrying, walking
and sitting for periods of time but that she has not tried to put all the
things she can do into place in a job.

[78]        
the plaintiff disagreed that in her conversations with friends and
family she dwells upon her pain.  That evidence is inconsistent with the
testimony of her collateral witnesses.  The plaintiff’s friends, Margaret Chow
Liu and Alice Chin both said that the plaintiff complained a lot about her
pain.  Stephanie Chong referred to her mother telling the family the details of
her treatments and letting them know when she is in pain.

[79]        
The plaintiff disagreed with Stephanie Chong’s evidence that the
litigation had been important to her mother and to the family for a long time. 
That denial is inconsistent with the evidence that Ms. Chong keeps detailed
notes of her therapy, has shown her physicians photos of the accident scene,
wanted her husband to attend and take notes during her examination by Dr. Hirsch,
and was concerned that Dr. Jenkins would not provide a medical legal report
that would, from Ms. Chong’s perspective, accurately reflect her symptoms and
injuries.  Ms. Chong also admitted that when the stress of the litigation is
over, she expects to move on with her life.

[80]        
The plaintiff’s evidence about her plans to return to work and when she
would have been able to take on new employment was inconsistent, and at times
confused.  In cross-examination, Ms. Chong agreed that it would not have been
possible for her to work even part-time while Valerie remained in school. 
However, she went on to say that she must have talked to her husband about
working while Valerie was in Grade 8.  When defendants’ counsel put the
proposition to Ms. Chong that she never had that discussion with her husband
before the accident, her response was “I don’t know.”  The plaintiff was then
asked whether she felt with all of Valerie’s activities that she had the
ability to work full-time.  Ms. Chong answered probably not, but that she was
considering it.

[81]        
The plaintiff was reminded that in her direct examination she said she
did not plan to return to work until early 2012.  She was asked if that
statement was true or if she planned to work in early 2007.  Her answer was “I
don’t know.”  Ms. Chong acknowledged that in 2007 her primary role was to care
for Valerie.  She said she did not want to go back to work full-time but was
exploring her options in 2007.  The plaintiff said that when she went out
looking for jobs in 2007 she was testing the market.  Ms. Chong said that
in 2007 she put her resume together hastily.  She explained the omission of
Fabricana from the resume by stating that until recently she had forgotten that
she had worked for Fabricana.  That explanation is difficult to reconcile with
her evidence in direct that before the accident she did not plan to return to
work in a position that paid less than her annual salary of $29,000 at
Fabricana.

[82]        
During her direct examination, the plaintiff gave evidence that the
Insurance Corporation of British Columbia had paid for her KARP rehabilitation
treatment, and that she had suffered physical and psychological injuries during
the course of that treatment.  Ms. Chong gave extensive evidence about alleged
shortcomings in her treatment at KARP and asserted that the KARP trainer had
invited her to collaborate with him in providing a fraudulent record of the
dates on which he had provided treatments to her.

[83]        
On the application of the defendants, and after hearing submissions from
the parties, I discharged the jury and the trial continued by judge alone.

[84]        
The plaintiff led no evidence to support her allegations of negligent
treatment by KARP or misconduct by her trainer.  The plaintiff’s allegations
were contrary to her own evidence that she benefited from the KARP training,
and her reports to Dr. Jenkins of improvements realized through the KARP
program.  I find that Ms. Chong’s evidence of mistreatment at the hands of
KARP is not credible. I also find the plaintiff gave that evidence in a
deliberate but misguided attempt to garner sympathy from the triers of fact
based on unfounded allegations of mistreatment by one of her care providers.

[85]        
I have found that some of the plaintiff’s evidence is not credible.  I
also find that Ms. Chong is not a reliable witness regarding the progress and
extent of her recovery.  I say that recognizing that no plaintiff whose
symptoms have persisted over a number of years can be expected to recall with
complete accuracy the extent of her injuries at particular stages of her
treatment.

[86]        
I find that Ms. Chong had a tendency in her testimony at trial to
downplay her progress and to overstate the extent of her restrictions.  When
she did so, it was not my impression that she sought to deliberately mislead
the court.  Rather, over the years since the accident, the plaintiff has become
focused on her pain, and frustrated by her inability to achieve an entirely
symptom-free recovery.  As a consequence, Ms. Chong underestimates her ability
to perform daily activities and to manage her ongoing symptoms.  For example,
in the passages from her examination for discovery which I have set out above,
the plaintiff was hard-pressed to identify any housekeeping activities, other
than window cleaning and vacuuming, for which she required assistance, but said
that she had limited her activities out of concern that she might re-injure
herself.  Where there are discrepancies between the plaintiff’s evidence at
trial of her symptoms and the progress of her recovery and the plaintiff’s
contemporaneous reports of her progress as noted in the clinical records of her
care providers, I prefer the evidence of her care providers.

The Medical Evidence

  Dr. Heather Jenkins

[87]        
Dr. Jenkins practises family medicine.  The plaintiff has been her
patient since 1999.  Dr. Jenkins had the benefit of seeing the plaintiff
regularly concerning the injuries she suffered from shortly after the accident
through October 2013.

[88]        
When Ms. Chong first attended Dr. Jenkins’ clinic on December 3, 2007, two
days after the accident, she reported pain in her lower back, upper back, neck
and right shoulder, and difficulty sleeping due to pain.  The treating physician,
Dr. Duncan, diagnosed musculoskeletal pain relating to the plaintiff’s lumbar
back, upper thoracic back, neck and shoulders.  She classified the plaintiff’s
soft tissue injuries, which involved pain and tenderness without significant
restriction to Ms. Chong’s range of motion for the affected areas, as Whiplash
Associated Disorder, Grade 1.

[89]        
 Dr. Duncan recommended physiotherapy and massage therapy to help
resolve her pain.

[90]        
The plaintiff also required prescription medications to assist her in
managing her musculoskeletal pain.  In her medical/legal report of December 4,
2013, Dr. Jenkins advised that the plaintiff had used medications
intermittently over the six years following her accident, including:

(a)      anti-inflammatories: Naproxen, Celebrex;

(b)      analgesic pain medications: Tylenol #3,
Tramacet, BuTrans patch, Nabilone;

(c)      sleeping medications: Zoplicone;

(d)      anti-spasmodic medications: Flexeril, muscle
relaxant;

(e)      anti-depressant medications: Cymbalta,
Zoloft;

(f)       chronic
pain medications: Cymbalta, Lidocaine Infusion.

[91]        
The plaintiff also participated in a structured rehabilitation program
through KARP during April and May 2008.  Upon completing the program, the
plaintiff reported improved daily functioning and Dr. Jenkins noted objective
improvements.

[92]        
Dr. Jenkins reported that over the course of many years, she encouraged
the plaintiff to taper her regular use of therapists, but recommended that
physiotherapy and massage therapy would be beneficial during flare-ups of the
plaintiff’s musculoskeletal pain.

[93]        
Dr. Jenkins referred the plaintiff to a physiatrist, Dr. Weiss, whose
investigations established that the plaintiff had no underlying problems
relating to her spine.  A bone scan performed in 2008 showed the plaintiff had
no active inflammation of the joints of her spine and back following the
accident.

[94]        
In October 2009, Dr. Jenkins altered her diagnosis of the plaintiff’s injuries
to chronic pain.

[95]        
Dr. Jenkins reported that Ms. Chong began to show signs of clinical
depression by May 2009.  She counselled the plaintiff on the use of cognitive
behavioural techniques to help manage her mood.  Although Dr. Jenkins referred
the plaintiff to a counsellor at that time, Ms. Chong did not follow up with
this recommendation.

[96]        
By June 2012, Dr. Jenkins thought that the plaintiff met the criteria
for depression.  Ms. Chong was treated with the anti-depressant medication
Cymbalta from March 2010 to May 2012, with Zoloft from November 2012 to March
2013 and with Cymbalta from March 2013 to October 2013.

[97]        
In 2013, the plaintiff attended at the UBC Sleep Disorder Clinic and was
diagnosed with mild to moderate obstructive sleep apnea.

[98]        
In April 2013, Dr. Jenkins referred the plaintiff to the ChangePain Program,
where she received treatment from Dr. Brenda Lau, a specialist in the management
of chronic pain.  Treatment at the ChangePain clinic included dry needling of
the plaintiff’s axial spine and neck and a Lidocaine infusion.  The ChangePain
physicians initially recommended that Ms. Chong curtail her activity and
fitness programs.  In Dr. Jenkins’ opinion, the consequences were that Ms.
Chong became deconditioned and lost much of the structure of her day.

[99]        
In her report of December 3, 2013, Dr. Jenkins diagnosed chronic pain
involving the plaintiff’s lumbar spine, upper thoracic para-vertebral muscles,
trapezius muscles and neck muscles, disrupted sleep in the context of moderate,
obstructive sleep apnea, and depression in partial remission.

[100]    
Dr. Jenkins offered the following prognosis:

Ms. Chong has had a prolonged
experience with her injuries and chronic pain and will likely continue to do so
indefinitely. At this point, it is unrealistic to expect that she will have
complete resolution of her symptoms. This type of chronic musculoskeletal pain
typically waxes and wanes in its clinical course and while it is probable that
Ms. Chong will experience improved functioning in the years ahead, this is tempered
by the reality of her advancing age and the global, gradual muscle weakening
that typically accompanies this. In addition, she will likely have flares of
her pain that will cause her temporary setbacks in both her performance and her
subjective, quality of life. She may need to use over-the-counter or
prescription medications during these flares. Over the years since her MVA, Ms.
Chong has purchased a variety of assistive devices, including cushions and
pillows to help with her chronic back pain. I expect that she will continue to
use these types of support in the future.

At the current time, Ms. Chong
is undertaking a new medication therapy, under the supervision of Dr. Lau at
the ChangePain Program: lidocaine subcutaneous infusion. This is a novel/therapeutic
intervention to her and, based on the one trial that she had done, she felt it
was helpful for her global sense of pain relief, improved functioning and sense
of restorative sleep. It is expensive (over $200) and Dr. Lau has started the
process of moving her over to the Chronic Pain Clinic at St. Paul’s Hospital,
where Ms. Chong has been told that she may be able to receive this therapy,
subsidized. I am unable to provide a medical opinion about the future role of
this type of medication for her and whether it will have utility in terms of
her functioning. It may, but I will defer this opinion to the chronic pain
experts.

The medical literature clearly
does not support the use of ongoing, regularly scheduled therapy (physiotherapy
and massage therapy) for chronic pain to improve prognosis. At the present
time, Ms. Chong is doing intermittent physiotherapy with Mark Finch. There is a
role for therapy during acute flares and Ms. Chong may wish to use either
massage or physiotherapy in the future when her back pain is exacerbated. It is
difficult to provide a prognostic opinion about how frequently she may have
flares, or similarly, how often she may seek Massage or Physiotherapy.

It
is, however, reasonable to assume that this may happen to an extent that it
impacts her functioning in a significant capacity, probably once to twice per
year. This opinion acknowledges that Ms. Chong has a daily chronic background
muscular pain.

[101]     It was Dr.
Jenkins’ opinion that the plaintiff would benefit from self-directed exercise. 
However, Dr. Jenkins thought there was no further role for personal trainers or
kinesiologists in managing the plaintiff’s chronic pain.  Dr. Jenkins noted
that at the time of her report, Ms. Chong was receiving advice from physicians
specializing in pain management who had recommended that she return to fitness
under the supervision of a kinesiologist.  While Dr. Jenkins was prepared to
accept that recommendation on a short term basis, she noted that Ms. Chong had
already received the benefit of years of education and advice from personal
trainers about reasonable and safe rehabilitation exercises.

[102]     Dr.
Jenkins also opined that the plaintiff’s depression was a consequence of her
chronic pain and functional limitations arising from the accident.  At the time
of her report, the plaintiff was receiving individual therapy from Dr. Mark Lau,
and was participating in a peer support group that used cognitive behavioural
techniques to assist with mood management.  In Dr. Jenkins’ opinion, the most
influential factor affecting the plaintiff’s mood was a worsening of her
chronic pain.  Dr. Jenkins thought it was possible that a future prolonged
exacerbation of the plaintiff’s pain could aggravate her depressive symptoms.

[103]     With
respect to sleep disruption, Dr. Jenkins noted that immediately following the
accident some of the plaintiff’s sleep problems arose from pain due to her
injuries.  However, the plaintiff’s obstructive sleep apnea was not
attributable to her injuries.  In Dr. Jenkins’ opinion, the plaintiff’s ongoing
sleep difficulties probably had more than one cause. She thought the
plaintiff’s chronic pain had a significant impact on her sleep.

[104]     Dr.
Jenkins thought the plaintiff was capable of taking courses to improve her
workforce skills, although she would need to take breaks, change positions and
perhaps require more time than a typical student to complete the course
requirements.  Similarly, with respect to future employment, activities
involving repetitive movements of her back and upper arm would be likely to
flare her back pain.  The plaintiff would need to be able self-pace, take
breaks and stretch during the work day.  Dr. Jenkins said that if the plaintiff
could find a job that permitted her to do so, she would encourage her to take
it.

[105]     In
cross-examination, Dr. Jenkins agreed that by April 2008 Ms. Chong was able to
work through the progressive exercise program at KARP with no restrictions and
that the KARP rehabilitation program produced significant gains for the
plaintiff.

[106]     Dr.
Jenkins counselled the plaintiff that she was getting stronger and that while
her level of functioning would improve, she could not realistically expect to
be pain free.

[107]     In
cross-examination, Dr. Jenkins testified that she thought the concerns
Ms. Chong expressed in January and August 2010 about driving her daughter
were anxiety-based rather than due to any physical limitations.  Dr. Jenkins
encouraged the plaintiff to drive.  By mid-December 2010, Ms. Chong reported
that she was driving more, including with Valerie.

[108]     Dr.
Jenkins confirmed that by the summer of 2010 Ms. Chong had completed a walking
clinic and reported that she was walking up to eight kilometers at a time.  Dr.
Jenkins agreed this was a positive development.

[109]     On
December 16, 2010, Dr. Jenkins noted that Ms. Chong’s mood was upbeat, and that
although she continued to complain of musculoskeletal pain, her exercise
included Pilates, walking and personal training.  Dr. Jenkins testified that this
was a very positive visit, that the plaintiff had more mobility, was more
active with her friends, and had not complained of depressive issues between
August and December 2010.

  Dr. Pamela Squire

[110]     Dr.
Squire, a specialist in the treatment and management of pain performed an
independent medical examination of Ms. Chong for plaintiff’s counsel on
December 4, 2012.

[111]     Dr. Squire
diagnosed fibromyalgia but found that Ms. Chong just met the criteria for that
condition.  Dr. Squire explained the diagnostic criteria for fibromyalgia. 
First, the patient must self-report pain and symptom severity at or above
prescribed levels on two questionnaires −
the Widespread Pain Index (WPI), and the Symptom Severity (SS) scale.  Second,
the plaintiff’s symptoms must have persisted at a similar level for at least
three months.  Third, the patient must not have another disorder that would
otherwise explain the pain.  Ms. Chong’s self-reporting on the WPI and SS
scales just met the levels required for a diagnosis of fibromyalgia.

[112]     Dr. Squire
also performed a tender point examination.  She explained there are 18 tender
points, or sites of local tendon and bursa pain, and that a finding of 11 or
more tender points is consistent with a diagnosis of fibromyalgia.  On her
examination, Dr. Squire found six positive tender points.

[113]     Other
diagnostic possibilities to explain the plaintiff’s neck and back pain, her
fatigue and insomnia included chronic myofascial or muscle related soft tissue
pain with secondary depression.  Dr. Squire noted that despite the plaintiff’s
efforts to reduce her pain through exercise, medications and intramuscular
stimulation she had not realized long-lasting pain relief.  The fact that the
plaintiff had a good range of motion in her neck indicated to Dr. Squire that
Ms. Chong did not have any underlying disorder of the joints or soft tissues of
her neck.  Dr. Squire thought that the plaintiff’s persistent neck pain might be
generated from her cervical facet joints.  She recommended a trial of medial
branch blocks to rule out cervical facet joint generated pain.  If the cervical
medial branch blocks were positive, then she thought radio frequency neurotomy
would be an appropriate treatment.

[114]     If facet
joint pain was ruled out, Dr. Squire recommended that Ms. Chong receive a
series of trigger point injections.  If those injections did not produce
sustained improvement in the plaintiff’s muscle function, then Dr. Squire
recommended a trial of Botulinum toxin (“Botox”) injections for relief of the
plaintiff’s neck pain and headaches.

[115]     Dr. Squire
also diagnosed insomnia caused by the plaintiff’s chronic pain.  At the time
she saw the plaintiff, Dr. Squire also thought that Ms. Chong was suffering
from moderate but improving depression.  Dr. Squire attributed the plaintiff’s fibromyalgia,
chronic neck, back and bilateral hip pain, headaches, fatigue, insomnia and
cognitive difficulties to the accident of December 1, 2007.

[116]     In Dr.
Squire’s opinion, Ms. Chong suffers from complex chronic pain and would benefit
from an interdisciplinary pain clinic offering medical, physical and
psychological support for her.

[117]     In
cross-examination, Dr. Squire was referred to page two, paragraph 21 of her
report where she observed that “Ms. Chong does not report early resolution of
symptoms.”  Dr. Squire was then asked why she made no reference to the
physiotherapists’ records for January 2008, which noted the plaintiff had
normal range of motion and was walking for exercise.   Dr. Squire acknowledged
that she ought to have commented on these positive factors and that it was
important to note improvements during a patient’s early treatment.

[118]     Dr. Squire
also agreed that it would have been helpful for her to know that Ms. Chong had
reported improvements while attending the KARP Rehab program in April and May
2008.

[119]     When
pressed in cross-examination, Dr. Squire agreed that the plaintiff never told
her, and she did not report the positive developments described in
Dr. Jenkins’ clinical record for July 15, 2008.  At that point,
approximately eight and a half months after the accident, Dr. Jenkins noted
that Ms. Chong continued to be active with walking, gym and driving, although
she continued to have pain with prolonged sitting, and ongoing pain and
stiffness in her neck and shoulders.  Dr. Squire agreed that the plaintiff
was doing quite well in the fall of 2008 and made further improvements while
receiving IMS therapy in the spring of 2009.

[120]     Dr. Squire
was unable to explain why she made no reference to Dr. Jenkins’ clinical note
of December 16, 2010 in her report.  Three years after the accident, Dr. Jenkins
noted that Ms. Chong’s mood was upbeat, she was continuing to increase her
walking capacity, was driving her daughter and working on her core exercises,
although she continued to report pain as a consequence of her activities.  Dr.
Squire agreed that by December 2010 the plaintiff was doing well.

[121]     When Dr.
Squire examined Ms. Chong in early December 2012, the plaintiff reported that
after sitting for more than two hours she became severely limited by pain.  This
represented an improvement from the initial stages of the plaintiff’s
treatment, when Ms. Chong was not able to tolerate sitting for more than an
hour.

[122]     Dr. Squire
agreed that sleep disruption, problems at home, and the plaintiff’s menopause
were all factors that may affect her mood and may cause or contribute to her
pain.

[123]     Dr. Squire
agreed that when she examined the plaintiff, Ms. Chong’s neck extension was
normal and pain free, that the plaintiff reported no pain on either extension
or rotation and that Ms. Chong had a normal range of motion in her lumbar
spine.

[124]      Dr.
Squire acknowledged that there are patients who become dependent on a cycle of
treatments and who may go to their therapists for support and validation.

[125]     In
cross-examination, Dr. Squire agreed that the length of recovery for most Grade
1 whiplash cases is three to six months, but testified that 30% of patients do
not recover within that time.  On re-examination, Dr. Squire stated those
patients go on to experience chronic pain.

  Dr. Gabriel Hirsch

[126]     Dr. Hirsch,
an expert in rehabilitation medicine, examined Ms. Chong at the request of the
defendants on November 9, 2010.

[127]     Dr. Hirsch
found that the plaintiff’s neck and back alignment and mobility was normal,
aside from reduced neck side flexion.  On his examination of the plaintiff,
Dr. Hirsch found no evidence of fibromyalgia and no objective evidence of
any neurologic deficit or nerve root irritation.  He did find mild tenderness
in the plaintiff’s neck, shoulder girdle region and lower back.

[128]     In Dr.
Hirsch’s opinion, the plaintiff sustained soft tissue injuries to the muscles,
tendons and ligaments of her neck, shoulder girdle and back in the accident. 
He acknowledged that at the date of his examination it was difficult to
quantify the severity of the injuries Ms. Chong suffered in the accident. 
However, he thought the plaintiff likely had significant symptoms and
limitations on her activities for at least four to six months following the
accident that were directly attributable to her injuries.

[129]     Dr. Hirsch
referred to the clinical record of Dee Malinski, a registered physiotherapist,
for September 5, 2008 which noted that the plaintiff’s lumbar spine was no
longer a main area of focus, that both subjective and objective findings showed
the plaintiff had progressed, and that her sitting tolerance was greater than
one hour.  At that time, Ms. Chong reported that her pain was intermittent and
reduced to mild to moderate from moderate plus.

[130]     Dr. Hirsch
thought that by the summer of 2008 the plaintiff would have been physically
capable of furthering her education, and that her neck, shoulder girdle and
back symptoms had improved in the summer of 2008 to a degree that rendered her
physically capable of working in occupations that involved sedentary, light and
light to moderate physical demands.  Dr. Hirsch thought that by the summer of
2008 the plaintiff was likely capable of re-entering the workforce as a retail
store manager.  He also thought that over the year preceding his examination
there had been some improvement in the plaintiff’s symptoms based on her
favourable response to cortisone injections, massage therapy and regular
exercise.

[131]     Dr. Hirsch
recommended that the plaintiff continue with her exercise program.  He did not
think additional injections or further investigations were warranted.  He
believed the plaintiff might benefit from a few sessions with a clinical
psychologist to relieve her fear of causing herself harm through her daily
activities, and to familiarize her with cognitive behavioural pain management
strategies.

[132]     Dr. Hirsch
offered a relatively positive prognosis.  He thought there would be some
further improvement of Ms. Chong’s neck, shoulder girdle and back symptoms and
that she was likely to make a good or very good recovery.  In light of the
duration of her symptoms, she might be left with intermittent discomfort or
pain but he did not expect those symptoms to restrict her day to day activities
to any significant degree.

[133]     Dr. Hirsch
thought that Ms. Chong was physically capable of working full-time in
occupations for which she was qualified by her education and work experience. 
He also thought the plaintiff had the physical ability to perform all of her
domestic tasks and yard-related activities.

[134]     By his
second report of December 9, 2013, Dr. Hirsch commented on Dr. Squire’s
treatment recommendations.

[135]     Dr. Hirsch
noted that since his previous report of November 9, 2010, Ms. Chong had
attended 18 one-hour sessions of cognitive behavioural therapy.  He supported
the plaintiff receiving a few additional sessions to reinforce her pain
management strategies.  Dr. Hirsch also recommended that the plaintiff continue
a self-directed exercise program to strengthen her neck, shoulder girdle and
back, and improve her conditioning.

[136]     Dr. Hirsch
disagreed with Dr. Squire’s recommendation that the plaintiff receive treatment
at a multi-disciplinary pain clinic. In Dr. Hirsch’s opinion, Ms. Chong had
already received sufficient psychotherapy, and enough physiotherapy and
physical training to enable her to continue a self-directed exercise program.

[137]     Dr. Hirsch
did not recommend medial branch block or Botox injections, prolotherapy, or
opioid-based medications.

[138]     With
respect to Dr. Squire’s diagnosis of fibromyalgia, Dr. Hirsch noted that when
he examined the plaintiff using a “distraction” method, she did not complain of
tenderness at any of the 18 sites associated with fibromyalgia.

[139]     In
cross-examination, Dr. Hirsch agreed there was no relationship between range of
motion and pain and that a patient with full range of motion could still
experience pain.

[140]     Dr. Hirsch
also agreed that Ms. Chong’s ongoing chronic pain was related to the accident
and that her tension headaches were caused by the accident.

[141]     Dr. Hirsch
disagreed with Dr. Squire’s recommendation that Ms. Chong should receive
further IMS therapy if her level of functioning deteriorated.  Dr. Hirsch
recommended that IMS should be stopped altogether on the basis that it is an
invasive procedure and had not produced a sustained benefit.  Dr. Hirsch
thought prolonged treatment that produced no sustained improvement created
therapeutic dependency, and that the plaintiff needed to assume more control of
her own care.

Findings of Fact on Plaintiff’s Injuries

[142]     In
assessing the opinions of the medical experts, I give less weight to the
evidence of Dr. Squire than to the evidence of Drs. Jenkins and Hirsch.  Dr.
Jenkins treated the plaintiff for six years following the accident.  Doctors
Jenkins and Hirsch each impressed me as professionals doing their best to
provide objective assistance to the Court.  Dr. Squire only saw Ms. Chong on
one occasion, five years after the accident.  Of more significance, Dr. Squire
failed to note the progress made by the plaintiff at various stages of her
treatment.  In cross-examination, Dr. Squire acknowledged that it was important
to take into consideration the plaintiff’s progress and that there were
instances where she had failed to do so.  Notably, Dr. Squire was unable to
explain her failure to refer to the plaintiff’s significant progress as
recorded in Dr. Jenkin’s clinical note for December 16, 2010.  Further,
although requested by plaintiff’s counsel to do so in her report, Dr. Squire
provided no opinion on the extent, if at all, to which Ms. Chong’s domestic
activities or earning capacity were impaired by her injuries.

[143]     I find
that the plaintiff suffered mild to moderate soft tissue injuries to the
muscles, tendons and ligaments of her neck, shoulder girdle and back.

[144]     I find
that the plaintiff has failed to establish, on the balance of probabilities,
that she suffers from fibromyalgia.  Dr. Squire, who was the only physician who
made a confirmed diagnosis of fibromyalgia, found that Ms. Chong just met the
criteria for that diagnosis. Dr. Hirsch found no evidence of fibromyalgia.  His
testing of all 18 tender points elicited no complaint of pain from the
plaintiff.  Fibromyalgia is a diagnosis of exclusion.  Dr. Squire recognized
there were possible alternative diagnoses, including chronic myofascial pain. 
That diagnosis is consistent with Dr. Jenkins’ diagnosis, and with Dr. Hirsch’s
acknowledgment that the plaintiff’s pain from the soft tissue injuries to her
back, shoulder girdle and neck has become chronic.

[145]     I accept
the evidence of Dr. Hirsch that the plaintiff suffered significant pain and
restrictions on her activities for at least 4 to 6 months following the
accident. I also find that by the spring of 2008, the plaintiff was making
progress in her recovery.  Dr. Jenkins noted in April and May 2008 that
although the plaintiff found the KARP active rehabilitation program demanding,
she was able to complete all the exercises without restriction.  I find that
the plaintiff continued, with some fluctuation in her symptoms, to make some
further improvement through 2009 and 2010, and that by the time of her
examination for discovery in June 2011 she had made a substantial, but not
complete recovery from her injuries.

[146]     I find
that by June 2011 at the latest, the plaintiff was able to perform almost all
of her housekeeping activities and that any limits on those activities were
self-imposed by Ms. Chong’s fear of re-injury, rather than due to any physical
restrictions.  Dr. Hirsch’s opinion that the plaintiff was physically capable
of performing her domestic activities without significant restrictions at the
time of his examination in November 2010 is supported by the plaintiff’s own
evidence on her discovery.

[147]     Ms.
Chong’s fear of hurting herself while performing daily activities is a manifestation
of the anxiety the plaintiff has suffered since the accident.

[148]     I accept
that the plaintiff’s pain is chronic, and find that Ms. Chong continued to
suffer intermittent flares of her back, shoulder, neck pain and related
headaches to the time of trial.

[149]     I also
accept the plaintiff’s evidence that since the accident she has suffered from
sleep disruption.  I accept Dr. Jenkins evidence that following the accident,
the plaintiff’s chronic pain disrupted her sleep. In 2013, the UBC Sleep
Disorder Clinic diagnosed obstructive sleep apnea. That condition is unrelated
to the injuries suffered by the plaintiff in the accident. Relying on Dr.
Jenkins’ opinion that the plaintiff’s ongoing sleep disorder probably has more
than one source, I find that the plaintiff’s chronic pain and obstructive sleep
apnea contribute in equal measure to Ms. Chong’s continuing complaint of sleep
disruption.

[150]     Regarding
prognosis, Dr. Hirsch thought that with the benefit of some additional advice
from a clinical psychologist to alleviate her fear of harming herself while
performing daily activities, and with continued exercise, the plaintiff would
experience some further improvement in her neck, shoulder and back symptoms. 
He thought the plaintiff would make a good recovery, but expected she might
experience intermittent pain and discomfort.  In Dr. Jenkins’ opinion, the
plaintiff is unlikely to experience complete resolution of her symptoms.  I
accept Dr. Jenkins’ opinion that Ms. Chong is likely to experience intermittent
flare-ups of her back, neck and shoulder pain, and that those flare-ups may
have a significant but temporary impact on the plaintiff’s level of functioning
once or twice a year.

CAUSATION

The Law

[151]    
The
basic test for determining causation is the "but for" test.  The
plaintiff bears the burden of establishing that "but for" the
negligent act or omission of the defendant, the injury would not have occurred:
Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21.

[152]    
As
the Court observed in Resurfice at para. 23:

[23] 
The "but for" test recognizes that compensation for negligent conduct
should only be made "where a substantial connection between the injury and
the defendant’s conduct" is present. It ensures that a defendant will not
be held liable for the plaintiff’s injuries where they "may very well be
due to factors unconnected to the defendant and not the fault of anyone": Snell
v. Farrell, at p. 327, per Sopinka J.

[153]     The
"but for" test must be proved on a balance of probabilities, rather
than with scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458,
at paras. 13, 16.

[154]      
It
is not necessary for the plaintiff to establish that the defendant’s negligence
is the sole cause of the injury. As long as the defendant is part of the cause
of the injury, the defendant is liable, even if his or her act alone was not
enough to create the injury: Athey v. Leonati, at para. 17.

[155]      
Causation must be established on a balance of probabilities
before damages are assessed.  As McLachlin, C.J.C. stated in Blackwater v.
Plint, 2005 SCC 58 at para. 78:

It is important to distinguish
between causation as the source of the loss and the rules of damage assessment
in tort.  The rules of causation consider generally whether "but for"
the defendant’s acts, the plaintiff’s damages would have been incurred on a
balance of probabilities.  Even though there may be several tortious and
non-tortious causes of injury, so long as the defendant’s act is a cause of the
plaintiff’s damage, the defendant is fully liable for that damage. The rules of
damages then consider what the original position of the plaintiff would have
been.  The governing principle is that the defendant need not put the plaintiff
in a better position than his original position and should not compensate the
plaintiff for any damages he would have suffered anyway: Athey….

[156]     The most
basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been if not for the defendant’s negligence, no
better or worse.  Tortfeasors must take their victims as they find them, even
if the plaintiff’s injuries are more severe than they would be for a normal
person (the thin skull rule). However, the defendant need not compensate the
plaintiff for any debilitating effects of a pre-existing condition which the
plaintiff would have experienced anyway (the crumbling skull rule): Athey v.
Leonati, at paras. 32-35.

[157]     The medical
evidence supports a finding that the plaintiff suffered mild to moderate soft
tissue injuries to her neck, shoulder and back as a result of the accident. 
Ms. Chong did not suffer from any pre-existing condition that would account for
her back, neck and shoulder pain, or her headaches. The plaintiff has met her
burden of establishing that but for the defendants’ negligence, she would not
have sustained those injuries.

[158]     Accepting
the evidence of Dr. Jenkins, I find the accident was a cause of the plaintiff’s
sleep disruption.  I have found that Ms. Chong’s sleep disruption is
attributable 50% to her accident-related chronic pain, and 50% to her unrelated
obstructive sleep apnea.

[159]     There is
no evidence that the plaintiff suffered from significant anxiety before the
accident.  I find that as a result of the accident, the plaintiff developed
apprehension about driving, which she had overcome by December 2010, when Dr.
Jenkins reported that she was driving more, and with Valerie. The plaintiff has
also developed an excessive  fear of re-injuring herself which has led her to
self-limit her participation in activities, including housekeeping, which she
is physically capable of performing.

[160]     Dr.
Jenkins noted symptoms of depression in May 2009, which she attributed to the
accident.  Dr. Jenkins did not make a diagnosis of clinical depression until
July 2012.  By that time, multiple factors unrelated to the accident were
contributing to Ms. Chong’s mood swings, fatigue and depression.  Dr. Squire
thought that after Valerie Chong left home to attend university in 2011, the
plaintiff’s separation from her daughters, or “empty nest syndrome”, might be a
factor contributing to Ms. Chong’s depression.  Dr. Jenkins agreed that the
plaintiff’s peri-menopausal symptoms included mood swings, irritability, and
short-term memory loss. Other factors that affected the plaintiff’s mood
included her obstructive sleep apnea, marital discord, Ms. Chong’s strained
relationship with Dr. Jenkins, and her belief that some of her friends did not
accept that she was injured to the extent she claimed, and had rejected her. 
The plaintiff’s increasing focus on the litigation and the accident also led
her to overestimate her restrictions and to underestimate her ability to get on
with the daily functions of her life.

[161]     The
plaintiff did not plead a claim for damages for depression, and did not apply
to amend her pleadings.  During the course of the trial plaintiff’s counsel advised
that a claim for depression was not being pursued.

[162]     However,
leaving clinical depression aside, I am satisfied that as a result of the
persistence of her neck, back and shoulder pain, the plaintiff suffered from
anxiety and emotional distress. I find that the defendants’ negligence was a
cause of her anxiety and emotional distress. The plaintiff has had the benefit
of extensive counseling for the management of chronic pain. I find that it is
probable that as the plaintiff increases her level of activity, and finds that
she can cope with discomfort and continue to function, her anxiety and
distress, as it relates to the accident, will diminish.

ASSESSMENT OF DAMAGES

Non-Pecuniary damages

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

[164]      In
Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of Appeal
identified a non-exhaustive list of the factors to be considered when assessing
non-pecuniary damages. They include the age of the plaintiff; the nature of the
injury; severity and duration of the pain; disability; emotional suffering;
loss or impairment of life; impairment of family, marital and social
relationships; impairment of physical and mental abilities; and loss of
lifestyle.

[165]      The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with her injuries and their consequences,
and the plaintiff’s ability to articulate that experience: Dilello v.
Montgomery, 2005 BCCA 56 at para. 25.

[166]     The
correct approach to assessing injuries which depend on subjective reports of
pain, and which, as here, have persisted beyond the normal period for recovery
was discussed in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), by
McEachern C.J. (as he then was).  In referring to an earlier decision, he said:

In Butler
v. Blaylock, [1981] B.C.J. No. 31, decided 7th October 1981, Vancouver
No. B781505, I referred to counsel’s argument that a defendant is often at
the mercy of a plaintiff in actions for damages for personal injuries because
complaints of pain cannot easily be disproved. I then said:

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

An
injured person is entitled to be fully and properly compensated for any injury
or disability caused by a wrongdoer. But no one can expect his fellow citizen
or citizens to compensate him in the absence of convincing evidence – which
could be just his own evidence if the surrounding circumstances are consistent
– that his complaints of pain are true reflections of a continuing injury.

[167]     I bear
that caution in mind in assessing Ms. Chong’s non-pecuniary damages.

Discussion and Award of Non-Pecuniary Damages

[168]     Counsel
for the plaintiff referred to Unger v. Singh (2000), 72 B.C.L.R. (3d)
353, where the Court of Appeal, in reviewing a jury award of non-pecuniary
damages of $187,000, considered the range of damages in cases involving
primarily soft tissue injuries with some emotional problems including sleep
disruption, nervousness or depression.  The Court held that the range was then
from $35,000-$125,000, but emphasized that those numbers were only guides. In Unger,
the Court held that the appropriate award for the plaintiff who had suffered
injuries in two accidents to her neck, shoulder, lower back and left arm, as
well as psychological problems that had largely resolved by the date of trial,
was $90,000.

[169]     The
plaintiff submits that the appropriate award of damages for pain and suffering
and loss of enjoyment of life is in the range of $110,000 to $120,000.  In
support of that submission, the plaintiff relies upon the following
authorities: Ashcroft v. Dhaliwal, 2007 BCSC 533, Morena v. Dhillon,
2014 BCSC 141, Prince-Wright v. Copeman, 2005 BCSC 1306, Jackson v. Lai,
2007 BCSC 1023, Gosselin v. Neal, 2010 BCSC 456, and Gosal v. Singh,
2009 BCSC 1471.

[170]     Those
cases involved more serious injuries than Ms. Chong sustained in this case.  For
example, in Ashcroft, the court awarded non-pecuniary damages of $120,000
to a 57-year-old plaintiff who suffered soft tissue injuries to her neck,
shoulders, back, hip, upper arms and legs, and post-traumatic stress disorder
and depression in two motor vehicle accidents.  The plaintiff’s psychological
injuries disabled her from returning to the workforce. Here, there is no
evidence that Ms. Chong suffered any psychological injury as a result of the
accident that would prevent her from returning to the workforce.

[171]     In Morena,
the plaintiff, a 47-year-old mother of two school-aged children, was awarded
general damages of $130,000.  In addition to soft tissue injuries to her neck,
shoulders, back, upper arms and legs, the plaintiff’s injuries included post-traumatic
stress disorder, severe depression, cognitive impairment and heart palpitations. 
Her long-term prognosis for significant depression was poor.  The plaintiff was
fully disabled from any work other than employment one hour a day as a school
lunch supervisor.

[172]     In Jackson,
the court assessed general damages of $100,000 for a 42-year-old female
plaintiff who suffered soft tissue injuries to her neck, back, and right arm
and shoulder, post-traumatic stress disorder and depression as a result of the
defendant’s negligence. The plaintiff was expected to be able to return to her
former employment within five years after trial, with some ongoing symptoms.

[173]     For their
part, the defendants submit that the appropriate quantum of non-pecuniary
damages for Ms. Chong is in the range of $25,000 to $45,000.  In support of
their position, the defendants rely upon Harshenin v. MacLeod, 2013 BCSC
2219, Thibeault v. MacGregor, 2013 BCSC 808, Hunt v. Ugre, 2012
BCSC 1704, and Hatch v. Kumar, 2013 BCSC 2049.

[174]     Many of
the cases cited by the defendants involved plaintiffs who, like Ms. Chong, were
not entirely credible or reliable witnesses, and whose subjective complaints of
pain persisted well beyond the expected time of recovery. For example, in Harshenin,
the 60-year-old plaintiff claimed to suffer pain in his neck, shoulders and
back three and a half years after his accident.  The Court had serious
reservations about the plaintiff’s credibility and reliability, and did not
accept the opinions of the plaintiff’s medical experts that he suffered from
chronic pain because those reports were based on his subjective and unreliable
reporting.  Rather, the Court accepted the opinion of the defence expert that
there were no objective findings to explain the plaintiff’s ongoing complaints.
The Court found the plaintiff had suffered a mild neck injury which should have
resolved within two months of the accident, and awarded non-pecuniary damages
of $25,000.  That plaintiff’s injuries were less severe than those of Ms.
Chong.

[175]     Similarly,
in Thibeault, the Court found that the plaintiff’s claim that an
accident which occurred three years before trial has left her with continuous
and unrelenting pain was exaggerated and was based entirely upon her unreliable
self-reporting. Based on a finding that the plaintiff had suffered a moderate
whiplash injury to her neck and shoulder, and an exacerbation of a pre-existing
injury to her mid-and lower back, the Court assessed non-pecuniary damages of
$35,000.

[176]     In Hatch,
the 49-year-old plaintiff was initially diagnosed with a neck and mid back
strain following her accident.  She received physiotherapy and message therapy,
participated in a graduated return to work program, and returned to her
full-time employment seven months after the accident.  More than a year after
the accident she continued to complain of pain in her back.  She received
injections that alleviated but did not resolve her persistent pain. The Court
found that by the time of trial, three years after the accident, the
plaintiff’s condition had plateaued.  The Court accepted the plaintiff’s
evidence of her continuing symptoms, and the advice of her experts that full
recovery was uncertain, and that after the passage of three years it was less
likely that she would make a full recovery.  In assessing general damages of
$50,000, the Court took into account the plaintiff’s former very physically
active lifestyle.  As the defendants submit, that is a distinguishing feature. 
However, the plaintiff in Hatch does not appear to have suffered the
anxiety and emotional distress I have found Ms. Chong experienced as a result
of her accident.

[177]     I must
make an award of non-pecuniary damages tailored to Ms. Chong’s particular
injuries and circumstances.

[178]     Here, I
have found significant inconsistencies between the plaintiff’s testimony at
trial and her evidence on discovery, and discrepancies between her evidence at
trial and the progress she reported to her care providers. I also bear in mind
that Ms. Chong’s subjective complaints of pain have persisted well beyond her
expected recovery time.  I have also found that over the course of the
litigation the plaintiff has become increasingly focused on her injuries and
that this has led her to exaggerate her limitations and to underestimate her
capacity to cope with her residual pain and discomfort.

[179]     Approaching
her evidence with caution, and taking into consideration all of these factors,
I have also found that the plaintiff did develop persistent or chronic neck,
back and shoulder pain (although not as severe or limiting as she alleges), and
that her ongoing sleep disruption is 50% attributable to the defendants’
negligence.  In addition, I have found that the plaintiff experienced
significant pain and limitations on her activities for at least four to six
months following the accident.  She continued to experience some pain thereafter
and had made a substantial recovery by June 2011, some three and a half years
after the accident.  While the plaintiff made further progress to the time of
trial, I have accepted the evidence of Dr. Jenkins that Ms. Chong has
experienced flares of her pain, and that she will likely continue to do so in
the future.

[180]     The plaintiff
has suffered anxiety and some emotional distress attributable to the accident. 
Her persistent pain and discomfort has diminished her social life, has affected
her relations with her daughters and has diminished her intimate relations with
her husband. I also find the plaintiff has suffered some loss of enjoyment of
the pleasure she took in her home and garden, particularly during the six
months following the accident during which her injuries restricted her ability
to perform domestic activities.  I have found that by mid-June 2011 at the
latest, the plaintiff was capable of performing almost all housekeeping
activities, and that any limitations thereafter were self-imposed, rather than
warranted by any physical restriction.

[181]     Taking all
the evidence into account, I find that an award of non-pecuniary damages to Ms.
Chong in the amount of $70,000 is fair and reasonable to both parties.

Past Loss of Earning Capacity

[182]     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:  Rowe
v. Bobell Express Ltd., 2005 BCCA 141; M.B. v. British Columbia,
2003 SCC 53.

[183]     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; Lines v. Gordon, 2009 BCCA 106.

[184]     The burden
of proof of actual past events is a balance of probabilities. An assessment of
loss of both past and future earning capacity involves consideration of
hypothetical events. The plaintiff is not required to prove these hypothetical
events on a balance of probabilities. The future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Athey v. Leonati at para. 27.

[185]     On a claim
for past loss of earning capacity, the plaintiff must first establish on a
balance of probabilities that the injuries she sustained caused an impairment
of her earning capacity.  Then, in determining what might have happened in the
past to enable the plaintiff to earn income, but for the accident, the court
must decide if the event was a real and substantial possibility, and then
determine the likelihood of it occurring: Smith v. Knudsen, 2004 BCCA
613 at paras. 28, 29, 36 and 37.

[186]     On the
balance of probabilities, the plaintiff has not established that her injuries
impaired her earning capacity to the time of trial.  In cross examination, Ms.
Chong acknowledged that she did not plan to return to the workforce until after
Valerie left home for university in 2011.  Mr. Chong testified that in light of
Valerie’s busy schedule it would have been unrealistic for his wife to have
returned to work before Valerie completed high school.  I find that the
plaintiff had no intention of returning to work before Valerie left home, and
no definite plan about the career opportunities she would pursue, or whether
she would work full-time or part-time.

[187]     The
plaintiff’s evidence that when she tested the waters in 2007 she received an
offer of employment from Winners that she did not accept because the annual
salary was less than $29,000 is inadmissible hearsay and is not supported by
any documentary evidence, or any evidence from her prospective employer.

[188]     Ms. Chong
recognized that in light of her lengthy absence from the workforce, she would likely
require some retraining before she secured employment.  The plaintiff testified
that she enrolled in one course at Langara College in each of 2011 and 2012,
but in both instances had to withdraw due to her difficulties with pain and
endurance. Based on the plaintiff’s self-report, Dr. Jenkins thought that if
Ms. Chong chose to take further courses to improve her workforce skills she
would likely have similar difficulties with pain and would need to take breaks,
change positions and might require more time than a typical student to complete
the course requirements.

[189]     Based on
objective findings on his examination of the plaintiff, Dr. Hirsch, an expert
in rehabilitation medicine, concluded that the plaintiff was physically capable
of working full-time in occupations for which she was qualified by her
education, work experience and transferable skills.  Dr. Hirsch thought that
the plaintiff was capable of meeting the sedentary, light, and light to
moderate physical demands of a retail manager’s position, or similar
occupation.  Taking into account the plaintiff’s tendency to overstate her
limitations, Dr. Hirsch’s specialty, and his objective findings, I prefer his
evidence on the plaintiff’s capacity to return to the workforce, and to engage
in retraining.  Further, by June 2011, the plaintiff’s injuries had
substantially resolved.  The plaintiff was capable of prolonged sitting for
between one and two hours, and was cleaning her home.  By the time Valerie left
home in the fall of 2011, the plaintiff was exercising at home and with a
personal trainer, was walking for an hour and a half or more, and doing yoga.
She was engaged in a broader range of physical activities that before the
accident.

[190]     The plaintiff
has not adduced expert evidence of a work capacity evaluation to demonstrate
that her injuries restricted her capacity to earn income at or after the time
she says she would have returned to the workforce.

[191]     The
plaintiff’s claim for damages for past loss of earning capacity is dismissed.

Future Loss of Earning Capacity

The Law

[192]                 
 The
standard of proof for the evaluation of hypothetical events that may affect an
award of damages for future loss of earning capacity is simple probability,
rather than the balance of probabilities: Athey v. Leonati. the Court of
Appeal held in Rosvold v. Dunlop, 2001 BCCA 1 at para 9:

[9] 
… Possibilities and probabilities, chances, opportunities and risks must all
be considered, so long as they are a real and substantial possibility and not
mere speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.

[193]                 
In
Rosvold at paras. 10 and 11, the Court of Appeal described the task
of the trial judge as follows:

[10]
The trial judge’s task is to assess the loss on a judgmental basis, taking into
consideration all the relevant factors arising from the evidence: Mazzuca v.
Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.) at para. 121, aff’d
[1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors may be
relevant can be found in Parypa v. Wickware, supra, at para. 31;
Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

[1]
whether the plaintiff has been rendered less capable overall from earning
income from all types of employment;

[2]
whether the plaintiff is less marketable or attractive as an employee to
potential employers;

[3]
whether the plaintiff has lost the ability to take advantage of all job
opportunities which might otherwise have been open to him, had he not been
injured; and

[4]
whether the plaintiff is less valuable to himself as a person capable of
earning income in a competitive labour market.

[11]
The task of the court is to assess damages, not to calculate them according to
some mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 (C.A.). 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: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644
(C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness
and reasonableness of the award must be considered taking into account all the
evidence.

[194]                 
In
Perren v. Lalari, 2010 BCCA 140, Garson J.A., after reviewing the
authorities, identified the basic principles articulated in Athey and Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, as:

1.         A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and

2.         It
is not loss of earnings, but, rather, loss of earning capacity for which
compensation must be made [Andrews at 251].

[195]     As Garson
J.A. emphasized in Perren at para. 32, the plaintiff must always
prove there is a real and substantial possibility of a future event leading to
an income loss.  If the plaintiff meets that burden, then the plaintiff may
prove the quantification of the loss of earning capacity on either an earnings
approach or a capital asset approach.  Where the loss is not readily measurable,
the capital asset approach will be more useful than the earnings approach.

[196]     Where the
assessment is based on the capital asset approach, the court must consider four
questions in Brown and make findings of fact concerning the nature and
extent of the plaintiff’s loss of capacity and how that loss may impact the
plaintiff’s ability to earn income: Morgan v. Galbraith, 2013 BCCA 305
at para. 56.

[197]     I must
first determine whether the plaintiff has established a real and substantial
possibility of a future event leading to an income loss.  If so, I must assess,
rather than calculate damages according to the likelihood of the event
occurring.  The award must be adjusted for both positive and negative
contingencies, and the court must consider the overall fairness and
reasonableness of the award: Rosvold at para. 11.

[198]     The
evidence falls short of establishing a real and substantial possibility of a
future event leading to income loss.  The plaintiff’s past work history and
wages are factors I must take into account in assessing loss of earning
capacity: Vaillancourt v. Molnar Estate, 2000 BCCA
685 at para. 72.  The plaintiff’s past employment was in the field of retail
sales and sales management.  Aside from Ms. Chong’s evidence that she earned
$29,000 in her last position with Fabricana, there is no evidence of the
plaintiff’s prior employment income.

[199]     By the
time of trial, Ms. Chong was physically capable of returning to work in a
retail position.  In making that finding, I have accepted Dr. Hirsch’s opinion
that the plaintiff is capable of returning to work in the kinds of positions
she formerly occupied.  I also accept that the plaintiff’s ongoing symptoms may
cause her discomfort, and that she will require breaks and the ability to
stretch or change position. Her pain will likely occasionally flare, and she
will need to self-pace. However there is no evidence that prospective employers
are unlikely to accommodate her in this regard.

[200]     The
evidence is insufficient to establish a substantial possibility that the
plaintiff will suffer a loss of earning capacity due to the injuries she
sustained in the accident.

[201]     The
plaintiff has not shown that her injuries have rendered her less capable overall
of earning income from all types of employment or have made her less marketable
as an employee to prospective employers.  Nor has she established that she is
no longer able to take advantage of job opportunities that might have been open
to her but for the accident.  While the plaintiff may perceive herself as less
valuable to prospective employers, as she puts into practice the counselling
she has received in managing pain and coping with discomfort, she will likely
demonstrate to herself that the residual effects of her injuries have rendered
her no less valuable as a person capable of earning income now than she was
before the accident.

[202]     I award no
damages for future loss of earning capacity.

Loss of Past and Future Homemaking Capacity

The Law

[203]     In Kroeker
v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.), the Court  recognized that
spousal services for the performance of household tasks can have an economic
value for which damages may be awarded.  However, the Court, at para. 30,
emphasized a cautious approach to awarding such damages.

[204]    
In Westbroek v. Brizuela, 2014 BCCA 48, the Court held that an
award of damages for loss of homemaking capacity is distinct from possible
future cost of care claims.  As the Court explained at para. 74:

I agree that the trial judge
miscategorised the homemaking award under the head of future cost of care
damages. In O’Connell v. Yung, 2012 BCCA 57 at paras. 59−68, this
Court clarified that homemaking costs, properly considered, are awarded for
loss of capacity and are distinct from possible future cost of care claims. An
award ordered for homemaking is for the value of the work that would have been
done by the plaintiff but which he or she is incapable of performing because of
the injuries at issue. The plaintiff has lost an asset: his or her ability to
perform household tasks that would have been of value to him or herself as well
as others in the family unit but for the accident. This is different from
future care costs where what is being compensated is the value of services that
are reasonably expected to be rendered to the plaintiff rather
than by the plaintiff.

[Emphasis in original.]

[205]     As counsel
for Ms. Chong submitted in his closing argument, damages for the difficulty the
plaintiff has or will have in performing her usual household tasks with less
efficiency and comfort than she did before the accident, or where the tasks
have never been and will never be done, or for the loss of the amenity of an
orderly home may be assessed as non-pecuniary damages for loss of amenity: Frobel
v. Dean, [1991] S.J. No. 374 (C.A.); McTavish v. MacGillivray
(2000), 74 B.C.L.R. (3d) 281 (C.A.), 2000 BCCA 164 at para. 69.  And see also Eaton
v. Regan, 2005 BCSC 3 at para. 46.

Discussion

[206]     I have already
taken into account the plaintiff’s discomfort and the restrictions she
experienced in performing household tasks, particularly during the first six
months following the accident, as well as the plaintiff’s loss of amenity of an
orderly house in the award of non-pecuniary damages.

[207]     I have
found that by June 2011 at the latest, Ms. Chong was capable of performing
almost all of her pre-accident homemaking activities.  Before the accident, Mr.
Chong provided the plaintiff with some assistance with heavier tasks, including
vacuuming.  I find that to the extent that Mr. Chong has assisted the plaintiff
with housekeeping activities since the accident, or may do in the future, his
assistance falls within the normal give and take of this family’s shared
housekeeping responsibilities.  The plaintiff has not established a claim for
past or future loss of housekeeping capacity.

Cost of Future Care

[208]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her to her pre-accident condition in so far
as that is possible.  When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care.  The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams (Guardian ad
litem of) v. Low, [2000] B.C.J. No. 408 (S.C.); Spehar (Guardian ad
litem of) v. Beazley, [2002] B.C.J. No 1718 (S.C.).

[209]     The test
for determining the appropriate award for cost of future care is an objective
one based on medical evidence.  The claims founding an award for cost of future
care must be both medically justified and reasonable.  The award of damages
must be moderate and fair to both parties: Milina v. Bartsch at
p. 84.

[210]     Future
care costs must be justified both because they are medically necessary and they
are likely to be incurred by the plaintiff.  The award of damages is thus a
matter of prediction as to what will happen in future.  If a plaintiff has not
used a particular item or service in the past it may be inappropriate to
include its cost in a future care award: Izony v. Weidlich, 2006 BCSC
1315, at para. 74.

[211]     The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff.  Negative
contingencies may be offset by positive contingencies.  In other cases,
however, the award is reduced based on the prospect of improvement in the
plaintiff’s condition or increased based on the prospect that additional care
will be required.  Each case falls to be determined on its particular facts: Gilbert
v. Bottle, 2011 BCSC 1389 at para. 253.

[212]    
At trial, the plaintiff claimed costs of future care totalling
$47,838.55.  Those costs consist of the following items and amounts:

(a)      gardening services in the amount of $497.69
yearly to age 70 at a present value of $6,191.76;

(b)      gym membership of $672 yearly to age 65 at a
present value of $6,470.69;

(c)      yoga twice weekly to age 70 at a present
value of $13,685.10;

(d)      24 additional sessions of psychological
treatment by Dr. Mark Lau at a cost of $4,200;

(e)      medications in the amount of $1,000 per year
to age 70 at a present value of $12,441;

(f)       six months additional treatments at
ChangePain at a cost of $3,000; and

(g)      10
sessions of physiotherapy at Copeman Health at a cost of $185 per session, for
a total $1,850.

[213]     I will
deal first with the claim for further physiotherapy.  Drs. Jenkins and Hirsch
were both opposed to the prolonged use of physiotherapy or massage therapy to
treat chronic pain.  They thought it offered no clinical benefit and would
prolong the plaintiff’s dependency on her therapists rather than encourage her
to take control of her own care.  Dr. Jenkins did acknowledge that the
plaintiff might wish to use either massage or physiotherapy intermittently,
when her back pain was exacerbated.

[214]     In her
report of December 4, 2013, Dr. Jenkins referred to the ChangePain clinic
recommending that the plaintiff reactivate her exercise program with
specialized assistance from a private trainer with Copeman Health.  By that
time, both Drs. Jenkins and Hirsch thought that Ms. Chong had received all the
personal training she required from physiotherapists or personal trainers.  I
share that view.  The plaintiff has not shown that the cost, at $185 per
session, of the proposed physiotherapy is reasonable or medically justified. 
However, I do accept that the plaintiff might intermittently use and benefit
from physiotherapy or massage therapy when her chronic pain flares.  In 2013,
the plaintiff paid $80 per hour for the services of West 4^th Avenue
Physiotherapy clinic.  She received most of her massage therapy at a cost of
$90 to $100 per hour.  I find that a reasonable allowance for the future cost
of physiotherapy or massage therapy is 10 sessions at $90 per session for a
total of $900.

[215]     With
respect to the proposed costs of future care by ChangePain, they include two
Lidocaine infusions at a cost of approximately $600 each, and 18 acupuncture
treatments over six months at a cost of $100 per treatment.  Ms. Chong reported
significant improvements from the first Lidocaine infusion she received in the
fall of 2013.  Dr. Jenkins described the treatment as “novel” but deferred to
the chronic pain experts on its utility.  Dr. Squire, supports this therapy. 
Dr. Hirsch does not endorse it.  Bearing in mind the degree of relief the
plaintiff reported from this treatment, I accept that Ms. Chong will use
this therapy and find that she will likely benefit from it.  However, I am not
satisfied that Ms. Chong requires the proposed 18 sessions of acupuncture.  She
may benefit from some further acupuncture therapy during flares of her back and
neck pain.  Taking all of these factors into account, I find that $1,500 is a
reasonable allowance for the cost of future care through ChangePain clinic.

[216]     All of the
medical experts thought the plaintiff would benefit from psychological
counselling to assist her in managing her pain and coping with her day to day
activities.  Dr. Lau advised that after 25 sessions the plaintiff’s mood was no
better, and perhaps worse, then when he commenced the therapy.  However, the
plaintiff testified that she had derived some benefit from the CBT therapy. 
Although Dr. Hirsch believed that by the time of trial the plaintiff should
have acquired adequate knowledge to implement cognitive behavioural pain
management strategies, he was not adverse to Ms. Chong having a few additional
treatment sessions to reinforce these strategies.  I am satisfied that some
further psychological counselling is medically justified and find that a
reasonable allowance for this item is $1,750, for 10 sessions with Dr. Lau.

[217]     With
respect to gardening, none of the plaintiff’s physicians have recommended this
service.  I have found that by mid June 2011, the plaintiff was physically
capable of performing almost all of her domestic activities.  I also find that
by the time of trial the plaintiff was capable of performing her pre-accident
gardening activities.  Before the accident, Mr. Chong looked after some of the
heavier tasks, such as mowing the lawn and digging.  I find this item is
neither reasonable nor medically justified.

[218]     Drs.
Jenkins and Hirsch agree that the plaintiff should continue to engage in a
self-directed exercise program several times a week.  The doctors agree that
exercise will provide a long term benefit for the management of chronic pain. 
The plaintiff has followed the medical experts’ recommendations, and has made
use of the YMCA membership she acquired after the accident.  I find that the
cost of $6,470.69 for the YMCA membership to age 65 is reasonable and medically
justified.

[219]     The
plaintiff has claimed for yoga to age 70.  Yoga is one of the activities that
Dr. Jenkins recommended for the plaintiff’s exercise regime.  Taking into
account the possibility that the plaintiff may not continue yoga to age 70 or
attend classes at a frequency that would justify the cost of annual membership
at a yoga facility, I would allow $7,000 for this item, or roughly half the
amount claimed.

[220]     With
respect to medication, at the time of Dr. Jenkins’ report, the plaintiff had
discontinued the use of anti-depressant medication.  However, Dr. Jenkins
thought that the plaintiff’s pain would flare from time to time and that it was
possible that a prolonged exacerbation of her pain could aggravate the
plaintiff’s depressive symptoms.  There is also a real possibility that the
plaintiff’s condition will continue to improve, and that her need for
medication will decrease.  Further, Ms. Chong’s costs of medication include the
cost of medicine for her sleep disruption, which is only attributable in part to
the injuries caused by the defendants.  Taking all of these factors into
account, I conclude that some provision for future cost of medication is
medically justified, and award $3,000 for this item.

Special Damages

[221]    
An
injured person is entitled to recover reasonable out-of-pocket expenses
incurred as a result of an accident, in order to restore the claimant to the
position he or she would have been in had the accident not occurred: X. v.
Y., 2011 BCSC 944 at para. 281; Milina v. Bartsch at
p. 78.

[222]     The plaintiff
claims special damages of $48,666.76.  The defendants do not dispute that Ms.
Chong incurred the expenses she claims, but submit the plaintiff had recovered
from the effects of the accident by late 2010, and is entitled to no special
damages beyond 2010.  The defendants also contend that the plaintiff is only
entitled to a portion of her special damages to 2010, because she failed to
heed medical advice to reduce her therapies. According to the defendants, a
reasonable allowance for special damages would be $11,500.

[223]     The
plaintiff has claimed $9,700 for physiotherapy sessions at West 4th
Physiotherapy clinic from December 6, 2007 to May 15, 2013.  Those sessions
extended well beyond the time that Dr. Jenkins and Dr. Hirsch thought ongoing
physiotherapy was medically justified, and well beyond June 2011, by which time
the plaintiff had substantially recovered from her injuries.  In my view, half
the amount claimed, or $4,850, is a reasonable allowance for the West 4th
Physiotherapy costs.

[224]     Similarly,
Ms. Chong has claimed $5,910 for 63 massage therapy sessions with Mr. Peters
between September 16, 2009 and September 22, 2012.  Again, taking into account
the recommendations of Drs. Jenkins and Weiss that the plaintiff taper this
therapy, I find that a reasonable allowance for massage therapy is $3,000.

[225]     Ms. Chong
has claimed an additional $1,885 for massage therapy provided by Mr. Mark Finch
in 2013, well beyond the date of the plaintiff’s substantial recovery, and
after Drs. Jenkins and Hirsch had both concluded that ongoing massage and
physiotherapy was no longer beneficial. The plaintiff has not shown this
expense was reasonably incurred.

[226]     For the
same reason, I would disallow the claim for seven sessions of physiotherapy for
specialized exercise guidance at Copeland Healthcare Center in 2013 at a cost
of $1,295.00.

[227]     The
plaintiff has claimed a total of $8,250.30 for YMCA membership and personal
training to the date of trial.  Dr. Hirsch thought the plaintiff would benefit
from further personal training for three to six months beyond November 9, 2010,
the date of his report, to ensure that Ms. Chong was exercising with the proper
technique.  Allowing the amounts claimed for the YMCA membership of
approximately $670 each year, and extending the cut-off point for personal
training to June 2011, I would reduce the amount claimed by $3,600 to eliminate
personal training that is not medically justified.  By June 2011, the plaintiff
had the benefit of almost two and a half years of personal training sessions at
the YMCA.  She ought to have been capable of managing her own self-directed
exercise program by mid-2011.  Expenses subsequently incurred for a personal
trainer were unreasonable and ought not to be borne by the defendants.

[228]     The
amounts claimed for therapies provided by ChangePain for lidocaine injections
and acupuncture were incurred for therapies that provided some benefit to Ms.
Chong.  They were administered by Dr. Brenda Lau, a physician to whom the
plaintiff was referred by Dr. Jenkins.  I find the amount claimed for these
therapies was reasonably incurred in the course of the plaintiff’s medical
treatment.

[229]     Ms. Chong
has incurred expenses totalling $4,375 for 32 psychology sessions provided by
Dr. Mark Lau at a cost of $175 per session.  The plaintiff was referred to Dr.
Lau by Dr. Jenkins.  Twenty five of the sessions were for cognitive behavioural
therapy.   All of the medical experts agree that cognitive behavioural therapy
will assist the plaintiff in coping with pain and discomfort.  Although at the
time of trial the plaintiff had only derived a limited benefit from her
psychological treatments, Dr. Jenkins supported this therapy, as did Dr. Hirsch.

[230]     Dr. Lau
acknowledged in cross-examination that some of his time was devoted to the
plaintiff’s complaint that Dr. Jenkins was not supporting her, and to her focus
on the litigation, which increased as the trial date approached.  The
defendants say they should not have to pay for psychological services unrelated
to the accident.  In re-examination, Dr. Lau explained that it was important to
listen to the plaintiff’s concerns in order to develop a therapeutic
relationship.  Dr. Lau counselled the plaintiff for both chronic pain and her
depressive symptoms, which had multiple sources, some unrelated to the
negligence of the defendants.  In the circumstances, I find that it is fair and
reasonable to make some deduction from the amount claimed for psychological
services.  Without detailed information concerning the allocation of Dr. Lau’s
time, my assessment is, of necessity, somewhat arbitrary.  I would reduce the
amount claimed for psychological services by $1,500.

[231]     The
plaintiff has claimed $6,757.62 for medications.  The medications consist of
prescription pain, anti-depressant and sleep medicines recommended by the
plaintiff’s physicians, as well as some over the counter pain and sleep
medications.  I have found that the plaintiff’s sleep disorder is only 50%
attributable to the defendants’ negligence.  I have also found that there are
numerous factors in addition to the accident, which have contributed to the
plaintiff’s anxiety and mood disorders.  Accordingly, I assess the plaintiff’s
reasonable expenses for medications incurred as a result of the defendants’
negligence at $3,400, or roughly half the amount claimed.

[232]     Ms. Chong
has claimed $499.54 for gardening in September 2008, $615 for gardening in June
2009, $1,150 for gardening services between December 14, 2010 and August 31,
2011, $74 for gardening services on July 23, 2012 and $747.60 for landscaping
services in December 2013.  The plaintiff acknowledged that Mr. Chong did the
mowing, digging, and heavier work in the garden before the accident and that
she and her husband had only engaged gardening services occasionally, when Mr.
Chong was too busy to do the gardening.  I agree with the submission of the
defendants that they are not responsible for the cost of services Mr. Chong
provided before the accident.  The plaintiff’s claim for the cost of gardening
services is disallowed.

[233]     The
plaintiff’s claims for the cost of yoga, an activity recommended by
Dr. Jenkins, are reasonable.

[234]     In light
of the recommendations of Drs. Jenkins, Weiss and Hirsch that the plaintiff
pursue self-directed exercise, I find that it was not unreasonable for her to
acquire the home exercise equipment and supplies she has claimed in her
schedule of special damages.  Those expenses and the amounts claimed for
devices such as the travel pillow, car seat cushions and heating pad are
reasonable and justified to assist the plaintiff in coping with discomfort
caused by her injuries.

[235]     Finally, I
would reduce the amount claimed for parking at the YMCA by half, or $132, to reflect
the fact that some of the parking expense was incurred for personal training
costs which I have found to be unreasonable.

[236]     I have
reduced the amounts claimed for special damages by a total of $22,615.22. 
Accordingly, I assess the plaintiff’s special damages in the amount of $26,051.54.

SUMMARY

[237]    
In summary, damages are awarded as follows:

Costs

[238]    
Unless there are matters that counsel wish to bring to the attention of
the Court, the plaintiff will have her costs at Scale B, and her reasonable
disbursements.  If submissions on costs are necessary, counsel are at liberty
to schedule a hearing through the Registry.

“PEARLMAN J.”