IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141231

Docket: 11-4258

Registry:
Victoria

Between:

Tanja
Thomasson

Plaintiff

And:

Brett
Moeller, Taurean Seib, Loren Perraton, and Robert Thomasson

Defendants

Before:
The Honourable Mr. Justice Bracken

Reasons for Judgment

[1]            
The plaintiff was injured in a motor vehicle accident at Nanaimo,
British Columbia on January 9, 2011.  At that time, she was a passenger in a
vehicle driven by her husband, the defendant Robert Thomasson.  Their two children
aged seven and five were also in the vehicle with them.  The defendant was
driving a full-size pick-up truck at the time.

[2]            
The action proceeded only against the defendant Robert Thomasson.  The
proceedings against all other defendants were dismissed by consent on
December 12, 2013.

[3]            
The issues in this action are:

 a)       The
nature and extent of the plaintiff’s injuries;

 b)       Whether
her injuries were caused by the accident;

c)       The assessment of damages
for non-pecuniary loss, past income loss, future income loss, cost of future
care and special damages.

 d)       Whether the plaintiff has failed to
mitigate her losses.

The Accident

[4]            
On the day of the accident, the plaintiff and defendant were en-route to
an appointment.  They were late for the appointment and they were in a hurry as
they intended to go on a family outing after the appointment had concluded.  It
had snowed that day in the Nanaimo area and the roads were slippery and
slushy.  The defendant was driving faster than he should have been given the
road conditions and the speed limits on the road.  The plaintiff had asked him
on at least one occasion to slow down, but he did not do so.

[5]            
They were travelling on the Nanaimo bypass which is a major route
running from the south to north.  They wished to turn off the highway at Mostar
Road which is a divided four-lane road.  When they turned, the defendant was
still driving at a faster than appropriate speed and as he started down Mostar
Road, he suddenly realized that both lanes of traffic had stopped ahead of
him.  He was not able to stop in time and he collided with the back of one
vehicle, glanced off that vehicle and came in contact with another before
coming to rest partly on the sidewalk at the side of the road.  There was
extensive damage to the defendant’s pick-up truck and it was eventually written
off as being not worth repairing.

[6]            
The plaintiff does not actually recall the impact of the collision;
however, she does recall turning to warn her children of the accident just
before the collision and she recalls the air bags deploying.  She was somewhat
confused.  Her husband came to the passenger side of the vehicle to open the
door to help her out of the vehicle.  He assisted her across the street where
she waited for an ambulance.  When the ambulance arrived, she was treated
briefly at the scene and then transported to the Nanaimo Regional General
Hospital where she was given further treatment and released home the same day.

The Plaintiff’s Injuries

[7]            
The plaintiff suffered injuries to her neck and back and both knees were
bruised.  She had low back pain and headaches, neck pain and upper back and
shoulder pain.  Her condition has deteriorated to what is now suggested to be a
chronic condition that is expected to persist over a very long time.  She says
that her life has been negatively impacted by the effects of the accident,
including her ability to work.  At the time of the accident she was employed as
a licensed practical nurse (“LPN”).  The plaintiff was born on November 27,
1975 and was 36 years old at the time of the accident.

Effect of the Accident on the Plaintiff

[8]            
She says that her lifestyle and life quality have been diminished as a
result of her injuries.  She is less capable of pursuing her recreational
interests of running, cycling and physical exercise, and she is not able to
maintain a full active lifestyle to care for her home, her children and her
garden.

[9]            
The plaintiff says that she was in an awkward position at the time of
the impact and her upper body was thrown backwards, then forwards and her knees
came into collision with the lower portion of the dashboard.  She was
immediately aware of pain in her neck and her knees and the pain became more
intense when she was at the hospital.  Later, she developed pain in her upper
back and she was nauseous and vomiting through that evening.

[10]        
She went to the office of her family doctor the next day where she was
seen by a locum physician who was in attendance that day.  An x-ray of
her neck was ordered and she was prescribed some medication for pain.  For the
next few days, she experienced continuing pain in her low back, her knees and
upper as well as headaches.  She did not respond well to the pain medication
and she slept poorly.  She said that she was tired at all times, sometimes
tearful and generally not feeling well.

[11]        
Prior to the accident, the plaintiff was described as energetic and
extremely fit.  She was very active as a runner and cyclist and she worked out
at a physical fitness centre on a frequent basis.  Her husband shared her
interests in physical activities and they often worked out together.  The
plaintiff has been described as having a somewhat driven personality and she
has worked either part-time or full-time since she was a teenager.  Following
graduation from high school, she worked in an office for a time and took a
business course of one year’s duration, receiving a diploma in 1993.  She was
employed full-time in office work until 1998.

[12]        
After their marriage, the plaintiff and defendant acquired a house in
Vancouver and spent several months doing renovations to improve its value.  This
involved significant physical activity and lifting.  The plaintiff actively
participated and she had no difficulty performing the work involved.

[13]        
In 1999, the plaintiff and defendant moved to Powell River where the
defendant had been offered a job with the British Columbia Ferry Corporation. 
Once again, the couple bought and renovated a house in Powell River over the
initial years that they lived there.  Around that time, the plaintiff decided
that she wished to follow a career as a licensed practical nurse.  She
commenced and completed the training and began work as an LPN at the Powell
River Hospital in 2002.  Her first child, Nathan, was born in 2003 and she was
on maternity leave until 2004.  She obtained a full-time position at the Powell
River Hospital commencing in January 2004 and she worked 37.5 hours of regular
time each week, plus occasional overtime.

[14]        
The plaintiff’s second child, Emalie, was born in 2005.  Again, the
plaintiff took some time off for maternity leave and in addition the plaintiff
was also engaged in physical work improving their home.  She returned to work
at Powell River Hospital in June of 2006, once again in a full-time capacity. 
She continued there until 2008 when the family moved to Nanaimo.

[15]        
The reason for the move to Nanaimo was so that the defendant could take a
better position with the Ferry Corporation, and both the plaintiff and
defendant felt that the move would provide greater opportunity for their
children.  The plaintiff obtained casual on-call work at the Nanaimo Regional
General Hospital (the “Hospital”).  She commenced work there on June 9, 2008
and continued in an on-call casual position for the most part until just prior
to the accident.  At the time of the accident, she was working full-time in a
temporary position, filling in for an employee who was away from work.

[16]        
Upon their move to Nanaimo, the couple acquired a home and spent
considerable time and effort in improving the property.  The plaintiff
participated in significant physical work including painting, assisting with drywalling
and she worked in the yard.  She participated in all of the physical work
involved including the renovation of one of the bedrooms in the home to a
work-out room for her and the defendant.

[17]        
The plaintiff also experienced a depressed mood soon after the
accident.  She had difficulty sleeping and complained of nausea and tiredness. 
She said that at times she had slurred speech, poor memory and dizziness.  She
was not able to participate in her normal routine or go to work.  She saw her
family doctor, Dr. Collins, frequently.  He confirmed her evidence that
she wanted to get better and that she was keen to get back to work as soon as
she was able to.

[18]        
She began massage therapy, physiotherapy including pool or water
therapy, acupuncture and exercise to strengthen the areas she had injured.  It
can readily been seen from her medical records that she sought out and
participated in the treatments that were recommended for her, but none were
particularly effective in spite of intense effort on her part.  At one point,
she tried a therapy known as “dry needling” which is a painful procedure that
involves inserting a needle through the skin and into the area where she was
experiencing pain.  The result was increased pain as well as side effects such
as nausea.  However, she felt that there was some improvement noted in the
range of motion of her back and neck.

[19]        
By February 2011, Dr. Collins noted some improvement in her condition and
for a time it appeared as though she would follow a fairly normal progression
of recovery from the soft tissue injuries she had incurred.  However, in spite
of some early optimism, her mood continued to be poor and she was very frustrated
by the changes to her life and her pain continued.

[20]        
She took some psychological counselling from Dr. Jones beginning in the
summer of 2011 as Dr. Collins had formed the view that her pain was becoming
chronic.  The medications he had prescribed for pain caused significant side
effects, particularly depressed mood.  The plaintiff felt that she made some
progress during the counselling sessions and said that she learned some skills
to cope with the limitations on her life and with the pain she continued to
experience.  Those skills assisted in improving her mood.

[21]        
She also saw other therapists including a physical medicine and
rehabilitation specialist who referred her to a program of physiotherapy.  She
attended 95 sessions of physiotherapy over the next 14 months or so
including some sessions intended to increase strength that she said were quite
painful.

[22]        
In January 2012 the plaintiff was referred to Dr. Deutscher, another
physical medicine and rehabilitation specialist.  He concluded that the
plaintiff had a “whiplash associated disorder” and that her treatment had been
thorough and comprehensive.  He recommended some medications and encouraged her
to continue with an active approach to therapy.

[23]        
Through the early part of 2012, the plaintiff received massage therapy
which she felt was beneficial.  She also began some chiropractic treatments
that also helped.  Over the summer of 2012 the plaintiff began a program that
was intended to get her ready to go back to work.  This involved physical
therapy and strength exercises to improve the condition of her upper back, neck
and shoulder.  On the advice of her physiotherapist she discontinued
chiropractic and massage treatments.  She progressed, but only slowly and with
continued pain.

[24]        
In December 2012 she began a graduated return to work.  By that time her
therapists had noted that she had improved her strength and mobility, but she
still experienced headaches, neck and shoulder pain.  She remained frustrated
with her progress, but went back to work on December 12, 1012.  She lasted only
two weeks at work before concluding that she was not ready for a return to work
as she could not manage the work without considerable pain.

[25]        
After her attempt to return to work in December 2012, she continued with
physiotherapy and began a series of sessions with a psychologist, Dr. Tessier. 
She said that she found these sessions helpful although as there is no report
of Dr. Tessier in evidence, it is not known what therapy was undertaken or
what Dr. Tessier concluded about her progress.

[26]        
The plaintiff also returned to massage therapy on a weekly basis and she
was prescribed pain relief by Dr. Collins.  The pain medication that she had taken
since the accident had an adverse effect upon her such that she developed
abdominal pain that was described as secondary to a peptic ulcer.  Her inability
to take appropriate medications had the effect of increasing her pain.  She was
also referred to Dr. O’Breasail, a psychiatrist who recommended that she take
an antidepressant medication.  She did so with some relief to her tension and
anxiety.

[27]        
The plaintiff still suffers headaches, low back pain, and a depressed
mood that has fluctuated in severity since the accident.  She says that she
experiences almost constant pain that is aggravated by physical effort,
particularly lifting or carrying anything heavy as well as prolonged sitting in
one position.  The defendant and other witnesses corroborate her symptoms and
describe her appearance as often having a look of pain on her face and note
that she frequently rubs her neck or shoulder area and shifts her position
frequently when sitting in a chair.

[28]        
It seems that the plaintiff’s mood disorder, while improving, is
directly related to her frustration at the limits upon her life that arise from
her injuries.  She still feels tired and she says she does not feel rested
after sleeping.  Although she has returned to work on a part-time basis she
still feels the effect of her injuries in that she is limited in her physical
activities and that her injuries have affected her life by limiting her
physical activities, reducing her intimacy with her husband and preventing her
from fully engaging in activities with her children.

[29]        
The plaintiff’s prognosis is seen as guarded by her physicians.  While
there has been significant progress such that she was able to go back to work
in 2013, she is still expected to have ongoing pain and emotional difficulties
associated with her injuries.  Dr. Collins expects that her symptoms will
likely be present for the rest of the plaintiff’s life.  Dr. Deutscher is of
much the same opinion.

[30]        
Dr. O’Breasail believes that the plaintiff has a major depressive
disorder and chronic pain that are the result of the injuries she received in
the accident.  He said that he is somewhat hopeful she will improve, but is of
the opinion that her problems will persist over the long term “regardless of
what treatment she receives”.

[31]        
The plaintiff was assessed by Dr. Semrau, a psychiatrist retained by the
defence to conduct an independent psychiatric examination.  Dr. Semrau was more
optimistic and believes that the chronic pain the plaintiff experiences is
psychologically based and he does not believe she has a major depressive
disorder and believes that there has been improvement.

[32]        
Dr. Moll, a neurologist who assessed the plaintiff on behalf of the
defence is of the opinion that the plaintiff’s pain is largely due to
depression and anxiety that she suffers.  He seems to believe that she has
likely recovered from the physical injuries and that her pain symptoms are
psychologically driven.

[33]        
Certainly there is a psychological component to the plaintiff’s
condition.  Whether it is a purely psychologically based problem, or
attributable to pain from physical injuries that have become chronic is not
clear.  It does appear that she will continue to suffer from the pain and
psychological symptoms that she says arose from the accident.  Her ability to
work and maintain the level of activity she enjoyed prior to the accident will
continue to be negatively affected.

Non-Pecuniary Damages

[34]        
The plaintiff seeks non-pecuniary damages in a range of $125,000 to
$140,000.  The defendant submits that the appropriate range is $70,000 to
$85,000 without adjustments related to mitigation and causation.  As to
mitigation, the defendant submits that the plaintiff failed to follow a course
of recommended psychological therapy known as cognitive behavioural therapy.  The
defendant argues that had she done so she could have returned to work earlier
and been able to tolerate more intense or heavy work.

[35]        
The defendant also submits that at least some of the plaintiff’s
problems could have been avoided or reduced as a result of unwarranted advice
that the plaintiff may have sustained a traumatic brain injury in the accident. 
The defendant argues that the problems of depression and chronic pain would
have been avoided or minimized and followed by a rapid recovery, but for that
advice.

[36]        
The defendant submits that if the court accepts that a significant part
of the plaintiff’s difficulties were caused by the stress associated with her
fear that she had suffered a brain injury, the plaintiff would have recovered
in about eighteen months and the damage award should be in the range of
$30,000.

[37]        
Likewise, the defendant submits that had the plaintiff followed the
advice given to her by Dr. Corney and accepted by Dr. O’Breasail that she take
psychological treatment known as cognitive behavioural therapy, she would have
recovered much sooner and would have been able to return to work by early 2012
at the latest.  The defendant acknowledges some uncertainty in this area, but
submits that an appropriate award of general damages would be in the range of
$50,000 to $55,000.

[38]        
The appropriate approach to the assessment of damages in these
circumstances is to determine the amount to be awarded for non-pecuniary
damages and then consider the impact, if any, of the issues of mitigation and
causation.

[39]        
The leading case on the assessment of damages in British Columbia is Stapley
v. Hejslet, 2006 BCCA 34.  At para. 46 the court set out several factors
for consideration:

The
inexhaustive list of common factors cited in Boyd that influence an
award of non-pecuniary damages includes:

(a)        age
of the plaintiff;

(b)        nature
of the injury;

(c)        severity
and duration of pain;

(d)        disability;

(e)        emotional
suffering; and

(f)         loss
or impairment of life;

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

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

(h)        impairment
of physical and mental abilities;

(i)         loss
of lifestyle; and

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

[40]        
The plaintiff is relatively young and was fit and active prior to the
accident.  She enjoyed regular exercise and fitness workouts as well as various
activities with her family.  Her injuries can be described as serious soft
tissue injuries that have developed into chronic pain syndrome.  I accept the
evidence that there is a strong likelihood that she will continue to be
affected by her injuries for the rest of her life.  She experiences daily pain
and reduced energy.  Her ability to work at her profession is limited.  She is
not able to participate in the program of fitness that she had followed and
enjoyed prior to the accident.

[41]        
The plaintiff has experienced serious emotional suffering leading to
depression that has at times been quite severe.  Her condition now seems to
have settled somewhat, but she still experiences low mood and mild to moderate
depression that is likely to continue for the foreseeable future.  She has been
described by the defendant and friends as having a much less exuberant approach
to life.  Her condition has diminished her ability to enjoy her relationships
with her husband and children as well as her friends and colleagues at work.

[42]        
The plaintiff relies on Sekihara v. Gill, 2013 BCSC 1387; Beagle
v. Cornelson Estate, 2012 BCSC 1934; Stanikzai v. Bola, 2012
BCSC 846; Crane v. Lee, 2011 BCSC 898; Bouchard v. Brown Bros.
Motor Lease Canada Ltd., 2011 BCSC 762; Slocombe v. Wowchuk,
2009 BCSC 967 and Marois v. Pelech, 2007 BCSC 1969. All
of those cases resulted in awards in the range of $90,000 to $140,000.  All of
them are somewhat comparable to the plaintiff’s injuries, although no two cases
are exactly alike.

[43]        
The defendant relies primarily on Clark v. Kouba, 2012 BCSC 1607
and Stull v. Cunningham, 2013 BCSC 1140.  In both cases the award
was $85,000 and the defendant submits the injuries in both cases were closer to
the plaintiff’s situation than the cases referred to by the plaintiff.  I agree
that Clark v. Kouba is close on its facts to the plaintiff’s situation
although the plaintiff is younger.  Upon consideration of the authorities, I am
of the view that the plaintiff’s injuries and condition are closer to the facts
in Clark v. Kouba rather than the plaintiff’s authorities.  In the
result, I award the sum of $95,000 as non-pecuniary damages.

[44]        
I do not accept that there is sufficient evidence to support the
defendant’s theory that the stress surrounding the plaintiff’s fear she had a
brain injury caused her to have depression or chronic pain syndrome.  It is not
clear to me whether the suggestion she explore that issue came from her family
doctor or her lawyer’s office.  I suspect the latter, but I am not convinced
the exploration of the issue of a brain injury leads to the conclusion her
problems were caused by her stress surrounding the medical and psychological
examinations related to that issue.  I am not prepared to reduce the award on
account of the defendant’s submission on causation.  The issue of mitigation
will be dealt with later in these reasons.

Past Wage Loss

[45]        
As a casual on-call employee at the Hospital, the plaintiff had no
seniority.  Seniority is accumulated by working at the Hospital as a casual or
part-time employee.  The opportunities for work were on an on-call basis and
often with very short notice.  The plaintiff accepted all of the shifts that
she was able to and her history shows that she was able to work approximately
70% of a full-time position.

[46]        
The plaintiff applied for every vacant position that came available. 
The main criterion for hiring was the level of seniority held by the
applicant.  The plaintiff wanted to work full-time at the Hospital as a
surgical LPN, but she was prepared to accept any opportunity and she did so. 
Gradually, she moved up the seniority list until she was in a position to be
offered a full-time temporary position in October of 2010 which she accepted. 
She was working in that position at the time of the accident.

[47]        
As noted, LPNs acquire seniority by working, and the more seniority she
has, the more likely she is to be offered shifts as the Hospital calls the most
senior person first with opportunities to work.  The most senior employees also
have priority for temporary or full-time positions that become available.  The
plaintiff began working at the Hospital with no seniority in 2008.  Over the
next few years, she slowly built up seniority.  She said that by the time of
the accident, she was approaching a position on the seniority list where she
would have had opportunities to compete for permanent full-time positions.

[48]        
As the position she was in at the time of the accident was temporary
position to replace an LPN on leave, she knew that it was likely she would be “bumped”
out of that position when the regular employee returned at the end of January 2011. 
At that time, she would have returned to her status as a casual employee.  Her
pattern of work would likely have been typical of what it was prior to the
accident at approximately 70% of a full-time position.  I find that she would
have continued in that pattern until such time as she was able to find a
full-time position.

[49]        
I am satisfied she would have continued to make herself available for
most if not all of the shifts that she was offered.  Given that she had
progressively been moving up the seniority list, I conclude she would have
continued to do so, but for the accident.

[50]        
The plaintiff submits that she would have obtained either a temporary or
permanent position within six months of January 31, 2011 or by August 1, 2011. 
She said that is what she expected from her knowledge of the hiring system at
the Hospital.  Her expectation seems consistent with the experience of a friend
of hers, Ms. Allison Green.  Ms. Green obtained a full-time permanent job after
about four and one-half years from the time she started in 2007.  Over that
time she took an extended leave period of approximately one year and thus she
was able to find a full‑time position in approximately three and one-half
years.  I expect that the plaintiff would have had a similar experience to Ms.
Green.  Given that the plaintiff commenced work at the hospital in July 2008,
if she followed a similar pattern as Ms. Green she would have obtained a
full-time position by January 1, 2012 at the latest.  Therefore, I conclude she
would have been hired as a full-time employee at the hospital by January 1,
2012.

[51]        
I found the plaintiff to be a credible witness.  The evidence satisfies
me that she has throughout her working life been determined and committed to a
long-time career of full-time employment.  By the time of the accident in January
2011, she was in a position to commit to the full-time obligations of an LPN.  Her
family supported her commitment and to some degree, the family lifestyle was
dependent on the salary she earned.

[52]        
I therefore conclude that the plaintiff was able and prepared to pursue
a long-term full-time career as an LPN.  The family had chosen to settle in an
area close to Nanaimo and it is likely that given her husband’s employment, she
would have continued to work at the Hospital until she retired at the age of
65.  I am also satisfied the plaintiff would have continued to work on an
on-call casual basis until she obtained a permanent full-time position.

[53]        
I find that she would have worked as many shifts as were available to
her until full-time work became available.  Allowing for gaps in her schedule
when work was not available to her, her past income loss is fixed at 70% of a
full-time employee.

[54]        
The hourly rate for an LPN through 2011 was $24.76 per hour plus at that
time, 11.4% in lieu of benefits.  Her 2010 income tax return showed T4 income
of approximately $37,000 which works out to about two-thirds of full-time. 
Given my findings as to when she would have been able to obtain a full-time
position, she is entitled to past income loss for the period from the accident
to the end of 2011.  While it is always difficult to determine what might have
happened, but for the accident, I think it likely that she would have continued
at the Hospital in much the same pattern as she had in 2010.  I therefore find
her past income loss for 2011 is $37,000.

[55]        
For the year 2012, by which time I conclude she would have had a
permanent full-time position, it is necessary to determine what a full-time
licensed practical nurse at the Hospital would earn.  The plaintiff has
calculated that number to be a rounded figure of $60,000 down from a precise
figure including various benefits of $63,147.  This takes into account a rate
of pay at $26.27 per hour, plus 11.8% the increased appropriate percentage to
be paid in lieu of benefits and holidays.  That figure also includes an
adjustment for holidays, shift differentials which are paid for night,
afternoon and weekend work, as well as extra pay for time that the plaintiff
would likely have worked on statutory holidays which carries a higher hourly
rate of pay.  The plaintiff has assumed that she would have worked an average
of two statutory holidays per year for a total increment of $456 per year.

[56]        
In his written submission, counsel for the plaintiff provided the detail
necessary to work out that calculation, but as the numbers are not seriously
challenged, I accept that the appropriate figure for a full-time licensed
practical nurse, including adjustments for the various benefits and pay
increments, is $60,000 per year.  I award that amount as past wage loss for the
year 2012, less $552 which represented the plaintiff’s 2012 earnings.  Thus,
the past wage loss for 2012 is $59,448.

[57]        
For 2013, the plaintiff earned $39,238.13.  Subtracting that amount from
$60,000, I award the amount of $20,762 as a rounded figure for past wage loss
in 2013.  I award the same amount for 2014 on the assumption that the plaintiff
would likely have earned a similar amount as she did in 2013 and again I use
the past income loss of $60,000 per year.

[58]        
The plaintiff suggests a tax rate of 18%.  I will accept that the total
figure has to be adjusted for tax reasons and for reduction of employment
insurance premiums.  The plaintiff calculated it on the basis of three and
one-half years.  I have made an award over four years and presumably the
arithmetic can be worked out by counsel.  If it is inconsistent, the issue may
be addressed.

[59]        
In summary, I award the plaintiff $137,972 on account of gross past
wages loss.  That figure is reduced by 18% which equals $24,834.96. 
Subtracting the latter figure from the gross past wage loss leaves a net past
wage loss of $113,137.04.

Medical Evidence and
Treatment

[60]        
The evidence shows that the plaintiff had a strong commitment to her
work and desired a full-time job as an LPN at the Hospital.  She was fully
aware that the route to a full-time position lay in building seniority through
hours worked.  She took on as many shifts as she could handle and it is clear
that more work was available if she had been able to accept it.  The call logs
of the Hospital show that there was work available for her most days in 2013.

[61]        
She gave evidence that she often tried to work even though she was
experiencing significant pain.  She did this on the advice of therapists who
encouraged her to try and work through as much pain as she could.

[62]        
Unfortunately, the nature of her work was such that her injuries were
aggravated and the pain made worse.  At least some of the work an LPN performs
requires heavy lifting.  An LPN is required to assist patients by lifting them
to reposition them in their hospital beds, or to help them in and out of bed. 
An LPN is also required to assist patients walking in the hallways or to use
the bathroom facilities.  There is apparently a policy in place that encourages
the staff to avoid any situation where they could be injured, but as the
plaintiff said in her evidence, that is not always possible.

[63]        
The plaintiff also finds it hard to sit for long periods of time to
complete entries on patient charts.  The effect of working regular shifts is
that she experiences pain and fatigue that leaves her less able and sometimes
unable to carry on with her non-work activities such as house and garden work
and participating in activities with her family.

[64]        
The plaintiff submits that she is likely to be disabled from working
full-time as a licensed practical nurse for the remainder of her working life. 
Several of the medical experts support her position.

[65]        
Dr. Christopher Collins has been the plaintiff’s family doctor for
several years and treated her prior to the accident.  He remained her family
doctor throughout the post-accident period.  In his reports, he described the
plaintiff as being “very motivated” to return to work and so far as he is
aware, she has been compliant with recommended treatment.  He noted in his
report of October 17, 2012 that her work exposes her to manual labour by
lifting and moving patients.  He says she had no pre-existing physical
condition that would have interfered with the performance of her work as an
LPN.  He also said that her “psychological state of mind” was stable before the
accident and that she had no predisposition to depression.  That conclusion is
somewhat inconsistent with other evidence of prior bouts of at least minor
depression.

[66]        
In his report of October 15, 2013, Dr. Collins said that while the
plaintiff had made significant progress, her progress remained guarded.  He
said she experienced significant changes in her emotional and physical
abilities.  He believed that is likely that some of her symptoms would be
present at least to some degree for the remainder of her life.  He also said
that she had gastric pain and a possible ulcer that resulted from her continued
use of certain medications that were used to control pain.

[67]        
On cross-examination, Dr. Collins said that the plaintiff was not
withdrawn in her dealings with him.  He acknowledged that as far as he knew,
the plaintiff had never received any cognitive behavioural therapy even though
he was aware it had been recommended by Dr. Corney, a psychologist and Dr.
O’Breasail, a psychiatrist.  Dr. Collins was also aware that Dr. Corney
was of the opinion that the plaintiff was suffering from a major depression. 
He said that he was aware of the co-morbidity of depression and chronic pain
and that he advised the plaintiff about that connection when dealing with her
injuries.

[68]        
Dr. Collins tended to agree with Dr. Corney that the plaintiff was
suffering from increased depression as a result of her injuries, but he did not
think anxiety was a serious issue with her.  He did agree with the proposition
put to him in cross-examination that the sooner the symptoms of psychological
overlay are treated, the better the outcome is likely to be.

[69]        
Dr. Deutscher is a specialist in physical medicine.  He saw the
plaintiff on December 28, 2012 on a referral from Dr. Collins.  He said that
she did not seem to be depressed and he said her mood was “okay”.  He saw no
evidence of abnormal pain behaviour.  He noted some restricted spinal rotation
to the left; otherwise, her ranges of flexion, extension and spinal rotation were
normal.  Dr. Deutscher found no evidence of neurological abnormalities. 
He did not find any indication of symptoms that would suggest ongoing past
concussion syndrome.  He said that her ongoing pain was consistent with chronic
pain associated with whiplash-type, soft tissue injuries.

[70]        
Dr. Deutscher is of the opinion that it is likely she will have
persisting pain on an ongoing basis with the possibility of some improvement in
the future, although there was no recent trend of improvement that he could
discern.  He also expressed the opinion that further medical interventions will
change the pattern of her pain and any improvement will likely have to come
from medication.  As she had tried a return to work by the time she saw Dr.
Deutscher, he felt it likely that she would be able to continue as an LPN, but
cautioned that she would be unlikely to manage “intense manual activity or to
perform work that does not allow her to reasonably optimize her body
mechanics.”

[71]        
On cross-examination, Dr. Deutscher said that the soft tissue injuries
such as those experienced by the plaintiff should resolve in 12 to 18 months in
a normal situation.  He noted that the plaintiff was young and otherwise very
fit and healthy.  He acknowledged that some individuals have symptoms of pain
long after the physical injuries have resolved.  He described this as centralized
or neurogenic pain.  He said that the signal the brain receives is not a pain
signal, but the brain mistakenly interprets a benign signal as pain.

[72]        
Dr. Deutscher agreed that neurogenic pain might be considered a cause of
the pain suffered by the plaintiff as she is a young, healthy individual whose
pain symptoms have persisted well beyond the predicted time for resolution of
the physical injuries.  He also agreed that from his review of the plaintiff’s
medical records, it appeared that the plaintiff was initially following a
normal recovery.

[73]        
At the time Dr. Deutscher saw the plaintiff, he found no physical
symptoms to account for her pain.  He was uncertain about whether or not the
plaintiff was experiencing neurogenic pain.  He said some experts are of the
opinion that what is sometimes referred to as neurogenic pain may actually be a
“persistent deep focus of pain” that resists treatment.

[74]        
Dr. Deutscher saw Dr. Corney’s report, but only after he had seen the
plaintiff.  He agreed that it is important to treat depression if it is
diagnosed.  He did say that he found the diagnosis of a major depressive
disorder surprising given his impression of the plaintiff during his
examination.  He did not consider the plaintiff to be depressed when he saw
her.

[75]        
Dr. O’Breasail provided a psychiatric report.  He saw the plaintiff on
December 17, 2013.  He received several medical reports and records before
consulting with the plaintiff.  It is Dr. O’Breasail’s opinion that the
plaintiff suffers from chronic pain secondary to injuries she received in the
accident.  He believes the accident was a precipitating cause of a major
depressive disorder.  He acknowledged the potential for co-morbidity between
pain and depression that gets in the way of a normal recovery.

[76]        
Like Dr. Collins, Dr. O’Breasail believed that the plaintiff was highly
motivated to return to work.  He recommended that the plaintiff continue with
psychological treatment and he recommended cognitive behavioural treatment
specifically as a way to address her chronic pain.

[77]        
On cross-examination, Dr. O’Breasail acknowledged that much of his
diagnosis depends upon what the plaintiff told him.  He believed the depression
resulted from the pain and resulting restrictions on the plaintiff’s activities. 
He agreed that early treatments of depression can improve the outcome and can
perhaps even prevent the development of co-morbidity of chronic pain and the
downward spiral of pain and depression that can often result.  He said that
there is a benefit in getting a patient to resume a normal routine as quickly as
possible.  In Dr. O’Breasail’s opinion, cognitive behavioural therapy is
the “gold standard” or optimum form of therapy and agreed that the sooner the
plaintiff was physically and psychologically capable of returning to work, the
better it would be for her.

[78]        
However, he also commented that it is not always possible to provide a
patient with the gold standard treatment, and cognitive behavioural therapy is
just one form of treatment in combination with other forms of therapy.  As
well, medication is often used in combination with the therapy, but he said it
is not possible to isolate one form of treatment as dominate over the others. 
He cannot say with certainty that removing depression would resolve the
plaintiff’s issues.  He said there must also be treatment for the diminishment
of pain.

[79]        
The plaintiff also provided a report from Mr. Min Trevor Kyi showing the
results of a functional work capacity assessment that he performed on the
plaintiff.  The assessment was conducted in Vancouver on November 7, 2013 and
took approximately seven and one-half hours.  Mr. Kyi conducted extensive
physical testing of the plaintiff during his assessment of her.  Prior to
conducting his assessment, he received reports from several doctors and
therapists who had treated the plaintiff and who had provided opinions or
information about her condition.

[80]        
Mr. Kyi carefully considered the work the plaintiff was required to
perform as an LPN.  He noted that while some hospitals have “no lift” policies
in place that reduce, but do not eliminate, the requirements of physically
lifting patients, the policy is not in place in all hospitals.  He also noted
that the job of an LPN still requires “… bending, reaching, applying medical
dressings and helping clients with personal care.”  He said that the precise
nature and extent of her work is unpredictable and at times may require her to
provide care to patients of varying ages, sizes and levels of disability.

[81]        
Mr. Kyi expressed the opinion that the plaintiff is able to work as an
LPN, but said that she has a work tolerance somewhere in the 20 to 40 hours per
week range.  He said that the lower part of that range would be “relatively
tolerable”, with “some residual energy remaining after work for other
activities”.  He said the upper end of 35 to 40 hours, essentially full-time
employment, while not impossible, would likely leave the plaintiff with
increased pain and thus in need of more medication and would result in a very
much reduced quality of life.  He recommended that the plaintiff participate in
work on a part-time basis only, with a preference for work in areas where there
is at least reduced exposure to assignments that require physical strength,
such as long-term care patients and rehabilitation areas of the hospital, where
patients are likely to require more physical assistance from staff.

[82]        
On cross-examination, Mr. Kyi acknowledged that he performed his
assessment based on a “non-accommodated” work environment.  He agreed that it
is reasonable to assume that Vancouver Island Health Authority is likely an
employer that has some policy to accommodate employees who suffer from
disabilities.  He said the plaintiff is likely to experience difficulty
managing transfers of patients to and from bed or bathroom facilities and in assisting
patients in bathing and use of the toilet.  He recommended providing a back
support, an ergonomic work station, and an active exercise regime for the
plaintiff in the hope that it might increase her tolerance to work longer
hours.

[83]        
Mr. Kyi could not give an exact number of hours the plaintiff is capable
of working.  He said there is no absolute cut-off.  She can likely work
somewhere between 20 to 40 hours each week in his opinion, but at the low end
of 20 to 24 hours he felt strongly that she would be able to do things aside
from work.  At the upper end of 35 to 40 hours each week, Mr. Kyi believed that
the plaintiff would experience adverse effects on her non-work life and will
have increased pain and restricted movement.  He said that she would likely be
less productive at the end of her shifts and that the non-work portions of her
life would suffer.  He did note that throughout his day of testing that the
plaintiff provided what he believed was excellent effort.

[84]        
The defendant requested Dr. Stanley Semrau, a psychiatrist, to conduct a
psychiatric assessment of the plaintiff.  Dr. Semrau did so on November 5,
2013.  He prepared an extensive report and reviewed the plaintiff’s complete
medical records.  At the outset, Dr. Semrau noted that the plaintiff was a
“productive and functional” person prior to the accident in spite of what he
described as “significant difficulties with relationships and various mental
health problems particularly depression”.  Based on the evidence, it appears
Dr. Semrau may have overstated the plaintiff’s past relationship and mental
health difficulties.  While there is some evidence of prior episodes of
depression, they were not “significant” nor were her relationship issues of
great significance.  Nevertheless, she did experience something of both.

[85]        
There have been conflicts between the plaintiff and her brother, and at
times, with her father.  Dr. Semrau said she also had difficulties with her
mother-in-law.  However, she has an obviously close bond with her mother and
her relationship with her husband has been long-lasting and happy.

[86]        
Dr. Semrau’s opinion is consistent with other evidence that the
plaintiff is a somewhat driven individual who, at times, may try to accomplish
too much.  There is evidence of some pre-accident depression, but it does not
appear to have caused any notable disruption in her work or family life.  Dr.
Semrau acknowledges that at p. 7 of his report where he stated:

Despite these difficulties Ms.
Thomasson had apparently been generally a very productive and functional person
in all major areas of her life almost all of the time pre-MVA.

[87]        
Even so, Dr. Semrau says that had the accident not occurred, the
plaintiff would have continued to struggle with chronic problems that would
result in low grade or episodic depression.  However, given her pre-accident
history, there is nothing to suggest such issues would have interfered with her
work or her desired career path as a full-time LPN.

[88]        
In spite of her problems, the plaintiff had maintained a positive home
and family life, assisted in renovation and upgrading of her home, and successfully
completed her training as an LPN.  She also worked full-time at the Powell
River Hospital even though she had two young children at home for some of that
period.  The pace of life she maintained may have taken a toll upon her
physical and mental health over time; however, there was no sign that it had
caused any difficulty for her before the accident, at least insofar as her work
and family life is concerned.  It appears that the plaintiff was well regarded,
happy and productive at work and at home.

[89]        
Dr. Semrau also considered whether the plaintiff had a mild traumatic
brain injury as a result of the accident.  He was quite emphatic in his
conclusion that it is very unlikely that she suffered any “… clinically
significant head injury” in the accident.  His conclusion is consistent with
the opinion of Dr. O’Breasail at p. 19.  Dr. Semrau concluded that the
plaintiff demonstrated vulnerability to the development of emotional symptoms
and that her personality makes her “poorly psychological tolerant” of
functional limitations.

[90]        
Dr. Semrau clearly feels that the plaintiff’s prognosis is uncertain. 
He was concerned that she had not fully engaged in the recommended cognitive
behavioural therapy when it was first recommended to her.  He is of the view
that her prognosis for recovery of any accident-related mental health symptoms
is good, but “accident unrelated mental health symptoms is only fair-moderately
good given the chronic nature of such difficulties …”  He summarized his
conclusion this way:

Ms. Thomasson’s longer-term
psychological / emotional state will likely be determined to some degree by the
extent of further physical symptom and functional recovery.  If substantial
further improvement occurs in these areas, MVA-related psychological /
emotional symptoms will likely fully resolve.  If substantial physical symptoms
or functional impairment persist, then psychological / emotional recovery is
likely to remain incomplete.

Given the evidence, the plaintiff’s physical symptoms have
not resolved.

[91]        
Dr. Corney is a psychologist who assessed the plaintiff to determine her
current level of cognitive and psychological functioning.  He summarized his
assessment and diagnosis in his report dated May 25, 2011, four months after
the accident.  He administered a series of cognitive tests and conducted an
extensive interview with the plaintiff as well as with her husband.  He
reviewed the plaintiff’s personal history and her post-accident symptoms.  Dr.
Corney noted that the plaintiff had symptoms of depression that he said they
were experienced post-accident.  He also said that he was not aware of any
significant psychological problems of the plaintiff before the accident,
although it was apparent from other evidence that the plaintiff had experienced
and had been treated for episodes of depression prior to the accident.  He
concluded that it was not possible to determine “… whether residual effects
related to mild traumatic brain injury are present, or if Ms. Thomasson’s
current symptoms can be attributed to psychological factors.”

[92]        
On March 22, 2013, Dr. Corney wrote another report.  That report
summarizes a subsequent interview with the plaintiff and her husband and again,
he administered an extensive battery of tests.  In the end, he reached the same
conclusion as he did in 2011.  He observed some improvement in her cognitive
functioning, but found her physical and emotional symptoms remained unresolved
and that because many of these symptoms overlap with the symptoms of mild
traumatic brain injury, it was not possible to conclude she had suffered a mild
traumatic brain injury.

[93]        
In light of the medical evidence, I find that the evidence is not
sufficient to prove that the plaintiff suffered a mild traumatic brain injury. 
It is more likely that the symptoms related to cognitive difficulties arose as
a result of pain and the stress-related anxiety caused by her inability to
carry on her normal routine of work and fitness activities.  There is no clear
evidence emerging from any of the reports to conclude the plaintiff suffered a
mild traumatic brain injury as her symptoms clearly overlap with other
emotional and psychological causes.

Loss of Future Earnings

[94]        
The plaintiff says she is only capable of working between 20 to 40 hours
per week.  She says that the higher end of that range will lead to an increase
in pain and the risk of further health problems along with a deepening of
depression.  Mr. Kyi, the occupational therapist, recommended that she work 20
to 25 hours per week.  The medical opinions of Dr. Collins, Dr. O’Breasail, and
Dr. Deutscher all support the presence of a disability that will restrict or
limit the plaintiff’s ability to work full-time.  The plaintiff says she can
work about 22 to 24 hours to work.  None of the medical reports suggest that
there is likely to be much improvement in the plaintiff’s ability to work as an
LPN.

[95]        
I accept the plaintiff’s submission that she had and displayed a desire
to return to work.  That submission is consistent with the evidence and with my
findings respecting her professional ambition and strong work ethic.

[96]        
As noted in Gregory v. ICBC, 2011 BCCA 144, an award for future
losses requires a comparison between the plaintiff’s likely future income had
the accident not happened, to be compared with the plaintiff’s future
post-accident period.  In doing so, I must determine how long the plaintiff
would likely have worked before retiring and the impact of various
contingencies that may have impacted the course of her life.

[97]        
As was stated in Hoy v. Williams, 2014 BCSC 234, at paras. 153
-157:

[153]    A
claim for loss of future earning capacity raises two key questions:  1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so
2) what compensation should be awarded for the resulting financial harm that
will accrue over time?  The assessment of loss must be based on the evidence,
and not an application of a purely mathematical calculation.  The appropriate
means of assessment will vary from case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.); Pallos v. Insurance Corp.
of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett, 2009 BCCA
232.

[154]    The
assessment of damages is a matter of judgment, not calculation: Rosvold v. Dunlop, 2001
BCCA 1 at para. 18.

[155] Insofar as possible, the plaintiff should be put in the
position he or she would have been in but for the injuries caused by the
defendant’s negligence: Lines v.
W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185.  The
essential task of the Court is to compare the likely future of the plaintiff’s
working life if the accident had not happened with the plaintiff’s likely
future working life after the accident: Gregory v. Insurance Corp. of British Columbia,
2011 BCCA 144 at para. 32.

[156]    There
are two possible approaches to assessment of loss of future earning capacity:
the “earnings approach” from Pallos,
and the “capital asset approach” in Brown.  Both approaches are correct.  The “earnings
approach” will generally be more useful when the loss is easily measurable: Perren v. Lalari, 2010
BCCA 140 at para. 32. Where the loss “is not measurable in a pecuniary way”,
the “capital asset” approach is more appropriate: Perren at para. 12.

[157]    The
earnings approach involves a form of math-oriented methodology such as i)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value or ii) awarding the plaintiff’s entire annual
income for a year or two: Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d)
260 (C.A.); Gilbert v. Bottle,
2011 BCSC 1389 at para. 233.

[98]        
In this case, the earnings approach is the better method as the
plaintiff’s loss can be calculated subject to adjustment for appropriate
contingencies: Reilly v. Lynn, 2003 BCCA 49; Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27.

[99]        
In this case, the plaintiff was qualified and well experienced as an LPN. 
She was a hard worker and well regarded by her peers and supervisors.  I have
concluded that she would have acquired a full-time permanent position by January 1,
2012 and as a result, she would have had a secure position in a health care
profession.  She had established her family and home and was secure in both.  I
find she would have worked full-time until likely retirement age at 65.  I find
that given two incomes, the likely pensions associated with those employers,
and given the plaintiff’s disciplined and determined nature, she will be able
to work two-thirds of full-time or 25 hours per week based on a week of 37.5
hours.  I apply the finding that full-time salary for an LPN equals $60,000 per
year.  The result is an annual income of $39,999.99 at two-thirds time, which I
will round up to $40,000.  That results in an annual loss of income of $20,000
per year commencing in the year 2015.

[100]     Using the
factors set out in Table 2 of the revised calculations of Mr. Wickson (Discount
factors allowing for contingencies), I apply a factor of 16.200 times $20,000
for a total loss of future income of $324,000.  I have used the revised
calculations to reflect the discount factors under the Law and Equity
Regulation 352/81.  That regulation is in effect at the date of the
judgment and in my view is appropriate even though it was not in effect as at
the date of the trial.  Therefore I award the plaintiff $324,000 as the loss of
her future income.

Cost of Future Care

[101]     I turn now
to the cost of future care.

[102]     Ms.
Barbara Phillips is an occupational therapist.  She is a physiotherapist by
training and a rehabilitation consultant.  She prepared a cost of future care
report which she described as a comprehensive study of the goods and services
that might be required by someone who has “… experienced a serious or
catastrophic injury or has chronic health needs.”

[103]     She went
to the plaintiff’s home on October 30, 2013 to perform her assessment.  She
also reviewed several medical and hospital records that were provided to her by
the plaintiff’s counsel.  That material did not include the report of the
psychiatrist Dr. Semrau, who prepared a report at the request of the
defendant’s counsel.

[104]     Based on
the information she received and her assessment, Ms. Phillips concluded that
the plaintiff will require some positional aids such as a cervical pillow and
back support, and ongoing therapy such as physiotherapy and massage therapy. 
She also felt that she would require some Pilates training and psychological
counselling on an ongoing basis.  She also recommended housecleaning assistance
to be provided every two weeks on a seasonal basis, with most of the services
continuing until the plaintiff is 75.  On cross-examination, she acknowledged
that if the underlying problem causing her pain were to resolve, then the need
for the services would be at least diminished if not eliminated.  The
recommendations she made are based on the reports she reviewed and the
plaintiff’s current condition.  She said she was aware there was some hope for
improvement, but no expectation that the plaintiff would not require services
for the remainder of her life.

[105]     Ms.
Phillips’ report assesses the plaintiff’s needs and anticipated future care as
at October 30, 2013.

[106]     Under this
head of damage the plaintiff claims a total of $88,833.50 for the cost of
future care.  The items claimed include physical items of support, as well as
massage and physiotherapy treatments, home assistance for cleaning and yard
care and physical training.  Ms. Phillips also recommended psychological
counselling as suggested by Dr. O’Breasail, and compensation for necessary
medications.  Obviously, it is difficult, if not impossible, to predict her
needs with perfection.  However, the assessment must be based upon what can be
justified by the medical evidence: Smith v. Moshrefzadeh, 2012 BCSC
1458.  In addition, future contingencies must be taken into account: O’Connell
v. Yung, 2012 BCCA 57.

[107]     One of the
difficulties in this case is that Ms. Phillips did not have access to all of
the available medical evidence.  She did not consider the report of Dr. Semrau
or Dr. Tessier, whose treating notes or any opinion were not made available to
the court.  Ms. Phillips acknowledged that the plaintiff’s need for
physiotherapy and massage therapy will depend upon the level of pain she
experiences over the years.  The same is true of her needs for medication and
cleaning assistance at home.  It must be remembered that the plaintiff is found
to be capable of up to about 25 or 27 hours each week as a licensed practical
nurse, so she is not incapable of some work at her home.  I appreciate her
hours of work may exacerbate her pain, but nevertheless, she is capable of at
least some physical effort.

[108]     I am
prepared to allow the physical aids itemized as a cervical pillow, a back
support and hot and cold packs as claimed in the amount of $2,436.

[109]     I will
allow a total of $10,240 for physiotherapy and massage therapy based on the
calculations of Mr. Wickson to age 65.

[110]     It may be
that a part-time permanent position at the Hospital may carry some benefits
such as a medical or dental plan that will cover some of her needed
medications.  Still, I expect she will spend some money in excess of any
benefits, perhaps for over-the-counter pain medications.  I will allow a figure
of $250 per year to age 65 in the sum of $5,120.

[111]     I will
allow the full amount claimed of $2,716 for psychological counselling, likely
to be spent in the first one or two years.

[112]     As to the
household cleaning, I agree that household care is reasonable as claimed at 1.5
hours per week at $25 per hour for a total of $1,957 per year.  However, I will
allow that amount to age 65 only, which is her anticipated retirement age. 
After that, she should still be able to carry on some work without having
expended effort at work.  Household cleaning is therefore allowed at $39,435. 
I make no allowance for seasonal cleaning in addition to the weekly cost as
that assistance provided together with the assistance of her husband should be
sufficient.

[113]     I
therefore allow the total amount of $57,947 (rounded to $57,950) as the cost of
future care.

Special Damages

[114]     I also
allow the special damages as claimed at $20,794.  If there is any difficulty in
determining the exact amount of any of those figures, the matter can be spoken
to.

[115]     The
plaintiff also claims a gross-up on the cost of future care as well as interest
at court order interest rates on the cost of future care.  I expect those matters
can likely be resolved by counsel, but if not, those and any others may be
spoken to.

Mitigation

[116]     The
defendant submits that the plaintiff has failed to mitigate her damages because
she failed to follow the advice of Dr. O’Breasail and Dr. Corney to take
cognitive behavioural therapy.  It is the defendant’s position that had she
done so, the depression she experienced and the resulting chronic pain she now
suffers would be much less or possibly even eliminated.

[117]     The
defendant submits that the pain the plaintiff suffers does not come from her
physical injuries, but rather it is a psychologically based type of pain.  The
defendant says that the pain the plaintiff experiences is what is referred to
as neurogenic in nature.  That is, it is pain experienced in the brain which
erroneously interprets benign messages from her body as pain.  Medical evidence
was that neurogenic pain is distinct from nociceptive pain which stems from an
underlying physical injury or pathology.  Neurogenic pain does not.

[118]     Dr.
O’Breasail and Dr. Collins accept that there is a distinction between the two
types of pain.  Dr. Deutscher was somewhat equivocal on that point.  He used
the term “central” or “centralized” pain rather than neurogenic pain.  He said
some physicians are of the view that there may in fact still exist some
persistent or deep focus of physical pain that has not been identified.  Thus,
the pain would still be caused by a physical injury.

[119]     All of the
medical experts agreed that depression can make pain worse and that successful
therapy can be useful in alleviating depression and will likely improve or at
least relieve pain symptoms.

[120]     The
defendant accepts the plaintiff has suffered painful soft tissue injuries
affecting her neck, shoulder, back and for a short term at least, her knees. 
However, the defendant says those injuries should have resolved within about 18
months of the accident.  The defendant says that the plaintiff was advised to
follow a course of psychotherapy that the defendant says very well could have
resulted in an earlier recovery and return to work, but she failed to do so.

[121]     Drs. Moll
and Deutscher both described a normal recovery period of 12 to 18 months for
uncomplicated soft tissue injuries.  Both formed at least the initial view that
the plaintiff’s injuries fell into that category.  Dr. Deutscher said that the
proper psychological or psychiatric treatment was likely to contribute to a
better recovery, but expressed some caution given the persistence of the
plaintiff’s symptoms and the length of time her symptoms have lasted.

[122]    
There is no doubt that the plaintiff’s injuries have not resolved.  The
question is whether the fact of her injuries have been so long lasting can be
attributed to her failure to take cognitive behavioural psychotherapy when it
was recommended by Dr. Corney in May of 2011 and later by Dr. O’Breasail. 
I note here that there is no evidence or report from Dr. Corney.  The defendant
said Dr. Corney’s report is in evidence through the evidence of Dr. O’Breasail
who endorsed such therapy in his report of October 22, 2013.  Dr. O’Breasail
said at p. 11 of his report:

With regard to treatment, in my
opinion, this woman should continue with the psychological treatment.  I
believe that if possible a cognitive/behavioural technique should be used to
specifically address her chronic pain, her depression and anxiety, and the link
therein.  I would suggest that she sees a psychologist intensely on a weekly
basis using cognitive/behavioural techniques for a period of three months then
decreasing in intensity following that to once every two to four weeks over the
following nine months.

[123]     When Dr.
Deutscher saw the plaintiff in September 2013, he said he did not find her to
be depressed at that time.  The plaintiff had some history of depression and
angry outbursts prior to the accident.  There is support in the medical opinion
that the accident exacerbated her situation as she was described as a hard
driving, motivated person who was unable to satisfy the demands she typically
placed upon herself after she suffered her injuries.

[124]    
Dr. Semrau who conducted a psychiatric exam at the request of the
defendant said at p. 19:

First it should be noted that due
to the lack of Ms. Thomasson having fully engaged in all potentially beneficial
types of treatment as described above so far, estimates of prognosis at this
stage are necessarily somewhat rough and could likely be significantly refined
once at least preliminary benefits of an enhanced treatment program can be
evaluated.

[125]     However,
at p. 18, after summarizing her post-motor vehicle treatment, he commented that
“In my opinion the mental health treatment which has been undertaken to date
has been generally appropriate …”

[126]     The
defendant submits that had the plaintiff taken cognitive behavioural therapy
when it was recommended in May of 2011, or shortly thereafter, the outcome of
treatment would have resulted in a significant improvement such that she would
be able to have returned to work perhaps as early as 2012.

[127]     The
plaintiff submits that to claim that cognitive behavioural therapy would have
resulted in sufficient improvement so that she could have been back to work
without restriction is overly optimistic.  The plaintiff points out that she
was very aggressive in pursuing therapy of many kinds and followed programs of
therapy that required a commitment of significant time and more importantly,
significant effort.  She also accepted what she said was the painful therapy of
“dry needling”.

[128]     The
plaintiff did seek counselling of part of the array of therapy she undertook. 
It does not appear that Dr. Corney’s report was passed on to Dr. Jones or to
Dr. Tessier.  However, the plaintiff did receive psychological treatment, but
it does not appear that she participated in any cognitive behavioural therapy
as part of her treatment with Dr. Jones or with any other psychologist. 
However, the treatments of Dr. Jones covered a period of several months.

[129]     The
defendant points out that there is no evidence from Dr. Jones and the defendant
submits an adverse inference should be drawn.  The defendant said that
initially, the plaintiff testified that she had provided Dr. Jones with a copy
of Dr. Corney’s report.  The inference was that Dr. Jones was likely aware
of the recommendation for cognitive behavioural therapy, but decided against
it.  However, under cross-examination, the plaintiff was less sure and said at
some point that she did not recall giving Dr. Jones a copy of Dr. Corney’s
report and she did not know if anyone else had done so.

[130]     The defendant
makes a similar submission respecting the plaintiff’s failure to call Dr.
Corney and another treating psychologist, Dr. Tessier.  As to Dr. Tessier,
there is no report disclosed and no documents or notes were provided.  Dr. Corney’s
reports were made available to the defence and while they were not evidence,
they were useful for the defence and formed the source of information that led
to a skillful cross-examination of the plaintiff and several of the medical
experts.  I am not prepared to draw an adverse inference because the plaintiff
failed to call Dr. Corney as an expert or as a fact witness even though the
defendant could not call him as part of its case.

[131]     Dr. Jones
was apparently listed as a potential witness, but was not called.  The defendant
says her evidence may well have shed some light on the issue of cognitive
behavioural therapy, most importantly whether she did receive Dr. Corney’s
report, and what type of therapy she delivered.

[132]     Dr.
Tessier was never mentioned as a potential witness for the trial and he is
still treating the plaintiff.  There is no evidence that Dr. Tessier is
delivering cognitive behavioural therapy or what benefit the plaintiff is
receiving from the treatment that she is getting.

[133]    
The defendant relies on two cases: Jones v. Trudel, 2000 BCCA
298 and Zawadzki v. Calimoso, 2011 BCSC 45 at para. 149.  The adverse
inference suggested respecting Dr. Jones seems to be that she did not
administer cognitive behavioural therapy or rejected its appropriate use. 
There is no evidence that the plaintiff has ever received cognitive behavioural
therapy for either Dr. Jones or Dr. Tessier.  I do not see how drawing
such an adverse inference advances the analysis in any way.

[134]    
As to the plaintiff’s failure to mitigate her loss by failing to take
cognitive behavioural therapy, I am not inclined to make such a finding.  The
law in this area is not controversial.  The leading cases are Janiak v.
Ippolito, [1985] 1 S.C.R. 146 and Chiu v. Chiu, 2002 BCCA 618.  In Chiu
at para. 57, the court said:

The onus is on the defendant to
prove that the plaintiff could have avoided all or a portion of his loss.  In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things: 
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably.  These principles are found in Janiak
v. Ippolito, [1985] 1 S.C.R. 146.

[135]    
Another case that has something of a factual similarity to this case is Jopling
v. Brodowich, 2009 BCSC 653 at para. 44 where Rice J. quoted from Fox v.
Danis, 2005 BCSC 102 (aff’d 2006 BCCA 324) at paras. 35-37.

The test for failure to mitigate by refusing to undergo
medical treatment is summarized in Fox v. Danis, 2005 BCSC 102 (aff’d
2006 BCCA 324, 228 B.C.A.C. 163), at paras. 35-37:

 [35]      There
is no dispute that every plaintiff has a duty to mitigate his/her damages, and
that the burden of proving a failure to fulfil that duty rests with the
defendant, the standard of proof being the balance of probabilities: Janiak
v. Ippolito, [1985] 1 S.C.R. 146.

 [36]      In
this case, the Defendant submits that the Plaintiff failed to mitigate her loss
in that she failed to exercise as recommended by her family doctor.

 [37]      To succeed in
proving these submissions, the Defendants must establish, on the balance of
probabilities, that the Plaintiff failed to undertake this recommended
treatment; that by following the recommended treatment she could have overcome
or could in the future overcome the problems; and that her refusal to take that
treatment was unreasonable: Janiak v. Ippolito, supra and Maslen
v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.).

[136]     Here, the
plaintiff sought out and participated in a wide variety of therapies.  She was
very proactive in trying to find a treatment that worked for her.  The evidence
indicates and I accept that she had at all times did her best to recover from
the injuries so she could return to work.  She wanted to work because she
wanted to build the necessary seniority to obtain a full-time position along
with the associated benefits of such a career.  She wanted to recover because
she was extremely active in recreational sport and with her family life.

[137]     I do not
find that she acted unreasonably in failing to take cognitive behavioural
therapy.  She was taking other therapy and was showing some improvement.  The
defendant accepts that he must prove that the plaintiff acted unreasonably in
failing to undertake the recommended treatment and says that the defendant must
go on to prove that there was a “possibility” that the course of treatment of
cognitive behavioural therapy would have improved the plaintiff’s recovery. 
The defendant submits that it is not necessary to prove that her condition
would definitely have been improved or even to prove on a balance of
probabilities.

[138]     The
language of other cases uses the words “likely” as in “she would likely have
improved.”  However, in my view, defendant’s counsel sets the bar too low when
he submits that all the defendant must show is a possibility her condition
would have been improved.  Even if I am wrong in that conclusion, it seems to
me that the evidence here is at best a suggestion that it “might have” caused an
improvement, not that it would have.

[139]     Obviously,
when dealing with psychotherapy or psychiatry, there is a great deal of room
for conjecture as to what might have happened had a particular course of
therapy been undertaken.  In this case, the plaintiff sought and accepted many
types of therapy in what I find was a genuine effort to recover her
pre-accident condition.  I do not find that the evidence satisfies me that
there was even a likely improvement possible as a result of cognitive
behavioural therapy.  At best, it suggests that it is a therapy that had some
possibility of being effective.  I do not accept that the plaintiff has failed
to mitigate her damages by not taking cognitive behavioural therapy.

[140]     The
defendant also submits that the plaintiff should have sought a workplace
accommodation so that she could have returned to work as an LPN with duties
that were appropriate to her condition.  The defendant called Mr. J. W.. Rose
who is the manager of disability management at the Vancouver Island Health
Authority.  (“VIHA”)  He gave evidence that the plaintiff had not made any
request for work accommodation.

[141]     Mr. Rose
said that VIHA is required to consider accommodation if requested.  He said
that accommodation might include a modification of duties to relieve against
heavy lifting or a move to clerical work.  He was not aware of any LPNs who are
working with a workplace accommodation at VIHA.  He said the first step is to
make a request and then VIHA would consider it.

[142]     On
cross-examination, Mr. Rose agreed that it might be difficult to work out a
form of accommodation for an LPN.  He agreed that some of the lift or sling
assists do not always work with complete success.  He also agreed that the work
of an LPN is often unpredictable and a care assistant is not always available
nor is it required that VIHA hire a care assistant to assist an employee who is
being accommodated in the workplace.

[143]     The
evidence of Mr. Rose was that once an employee makes a request for
accommodation VIHA then assigns representatives to work with the employee to
make arrangements for medical assessment and evaluation in an effort to find
clear information about the employee’s limitations.  The goal is to allow
employees the opportunity to work without discrimination on account of their
disability.  If an employee cannot be accommodated in their regular position,
attempts can be made to place the employee in another area of employment, although
the pay rate is not necessarily preserved.  Mr. Rose was aware the plaintiff
had tried a graduated return to work.

[144]     Applying
the analysis in Janiak v. Ippolito and the cases referred to above, I am
not able to say on the evidence before me that it was unreasonable of
the plaintiff not to apply for workplace accommodation.  It does not appear
that anyone at VIHA advised her of the policy or gave her any direction or
information on the issue.  There is nothing in the evidence to suggest the
plaintiff was, or should have been aware of the possibility of an
accommodation.  Also, given the nature of the work of an LPN, it does not seem
likely that it would have been easy to find the kind of accommodation the
plaintiff required.  The plaintiff can do the work of an LPN, but only for a
reduced length of time.  In all of the circumstances I find that the plaintiff
has not failed to mitigate her loss by seeking a workplace accommodation.

[145]     Thus, I
find that the evidence presented on mitigation does not satisfy me that I
should make a reduction for the plaintiff’s failure to mitigate her damages and
I award damages as already described.

Summary

[146]     The
plaintiff is entitled to court order interest and costs.

               “J.
K. Bracken, J.”               

The
Honourable Mr. Justice Bracken