IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150127

Docket: M144200

Registry:
New Westminster

Between:

Cindy Clair Corke

Plaintiff

And

Scott Andrews and
Scott Andrews Investments Inc.

Defendants

Before:
The Honourable Mr. Justice Joyce

Reasons for Judgment

Introduction and statement of issues

[1]            
On September 19, 2011, the plaintiff, Ms. Corke, was in her car,
stopped at the intersection of 96^th Avenue and 156^th Street
in Surrey, B.C., when her car was struck from the rear by a pickup truck being
driven by the defendant, Mr. Andrews (the “Accident”). The speed of the
pickup truck at the time of impact was not great and the physical damage to Ms. Corke’s
car was minimal.

[2]            
Ms. Corke sought medical attention from her family physician, a
chiropractor and a physiotherapist. She was also assessed at the instance of
her counsel by an anaesthesiologist and underwent a work capacity evaluation. Despite
a number of investigations and treatments, Ms. Corke continues to complain
of symptoms that she attributes to the Accident.

[3]            
Her principal complaint at the time of trial was with regard to her mid
back. Ms. Corke asserts that the injuries suffered in the Accident caused
significant physical impairment that resulted in ongoing pain and discomfort,
and a loss of both past and future capacity to earn income. She seeks damages
for:

(a)      pain, suffering, loss of
amenities and loss of housekeeping service;

(b)      past loss of income and earning
capacity;

(c)      loss of future earning
capacity;

(d)      cost of future care;

(e)      cost of retraining; and

(f)       special damages.

[4]            
It is the defendants’ position that this was a minor collision,
resulting in minor soft-tissue injury only and that Ms. Corke is entitled
to a modest award of damages.

The collision

[5]            
Ms. Corke was in the driver’s seat of her car, a 1989 Mazda 626,
when she stopped at the intersection. Without prior warning, Mr. Andrew’s
pickup truck struck the back of her vehicle. Ms. Corke described the collision
as a “whack” and said that she was thrown back into her seat, then forward. She
was restrained by her seatbelt. Ms. Corke did not believe that her vehicle
was pushed forward. She said that she was stunned by the unexpected collision
and felt an immediate stabbing pain in the middle of her back.

[6]            
Mr. Derrick Ross, a passenger who was in the back seat of the car
at the time of the collision, got out and checked to see if there was any
visible damage to the Mazda but did not see anything noteworthy. He assisted Ms. Corke
in the exchange of information between her and Mr. Andrews.

[7]            
The only damage to the Mazda was a couple of marks on the bumper and a
bent license plate. An engineering report prepared by Mr. James Bowler
estimated the change of collision speed of Ms. Corke’s car was something
less than 10.5 km/h. In his report he stated:

The test
Mazda’s damage estimate indicates the severity of this test was at least
slightly above the damage threshold and was more severe than this incident.
Taking into account the mass of the heavier Corke Mazda, this test indicates
the Corke Mazda likely sustained a speed change of less than 10.5 km/h in this
incident.

This collision was at least
severe enough to cause the black transfer marks from the Chevrolet’s front
license plate bracket protrusions onto the Mazda’s rear bumper cover. However,
I was unable to locate test data to quantify the severity required to make
similar marks. As such, I am unable to determine a lower bound for the
collision severity.

[8]            
Ms. Corke’s vehicle did not require any repairs.

[9]            
There was no visible damage to Mr. Andrew’s pickup truck.

Ms. Corke’s background and medical history prior to the Accident

[10]        
Ms. Corke is 37 years old and the single mother of two children who
are nine and thirteen years old. Her son lives with her mother in Saskatchewan
and her daughter lives with her in a home that she shares with another single
mother.

[11]        
Ms. Corke testified that prior to the Accident she was an active,
healthy person. She played softball, snowboarded and went on day-long hikes.
She lived with her daughter in a two-bedroom suite and used to spend
approximately two hours every two weeks cleaning the apartment. She enjoyed
cooking and entertaining friends.

[12]        
Ms. Corke has a hypothyroid condition, which she has had some ten years.
It has been managed with medication.

[13]        
Ms. Corke testified that before the Accident she had minor
headaches occasionally, which did not interfere with her activities. She said
that on occasion she had migraine headaches, but testified that she had her
last migraine headache approximately two years before the Accident.

[14]        
Ms. Corke received a number of chiropractic treatments before the Accident
from Dr. Banman and Dr. McCallum. She received a treatment from Dr. Banman
one week before the Accident.

[15]        
Ms. Corke testified that she sought chiropractic treatments for
back pain that was different from that which she experienced after the Accident
and that the treatments were effective to relieve the episodic pain.

[16]        
In a personal case history that Ms. Corke filled out when she first
saw her chiropractor, Dr. Banman, in November of 2008, she noted that the
reason for her visit was “migraines” and that she had them all her life. In the
case history, she attributed the migraines to stress and not taking care of
herself properly.

[17]        
At page 8 of his report dated February 7, 2014, Dr. Banman
commented on his treatment of Ms. Corke prior to the Accident as follows:

…Ms. Corke had been a
patient prior to the [Accident]. She did consult me regarding an acute episode
of lower back pain approximately one week prior to the [Accident]. However, she
indicated that the complaint, which showed up on the morning of the treatment
resolved quickly and was asymptomatic at the time of the accident. My clinical
records dating back to November 17, 2008 do not indicate any pre-existing
history of lower back pain nor of Ms. Corke’s current complaints.

[18]        
In cross-examination, Dr. Banman testified that before the Accident
he treated Ms. Corke on the following dates for the following complaints:

·      
November 19, 2008 – sore upper spine;

·      
December 10, 2008 – lower back;

·      
December 30, 2008 – lower back;

·      
June 23, 2009 – mid-thoracic spine pain and tightness;

·      
October 5, 2009 – mid-thoracic tightness, migraines;

·      
November 16, 2009 – right cervical thoracic pinch;

·      
March 19, 2010 – increased migraines, sore bottoms of feet; and

·      
September 11, 2011 – acute lower back pain.

[19]        
After his review of his clinical records, Dr. Banman admitted that Ms. Corke
saw him for treatment of lower back, mid-back and right cervical pain, as well
as for migraine headaches. Dr. Banman described the visits prior to the Accident
as relating to complaints of acute and episodic back pain and migraine
headaches.

Ms. Corke’s complaints and treatments following the Accident

Ms. Corke’s evidence

[20]        
After the Accident, Ms. Corke picked up her daughter and drove her
home. She then went to the Mission Memorial Hospital to be assessed. She said
that her neck and upper back tightened up as she made her way to the hospital
and she had stabbing pain in her mid-back.

[21]        
The next day, Ms. Corke went to see her family doctor, Dr. Campbell.
She said she was feeling stiff when she went to see him. On a follow-up visit
to Dr. Campbell, he prescribed physiotherapy and massage therapy.

[22]        
Ms. Corke stopped seeing Dr. Campbell because she did not
think he was giving her the care she needed. In May 2012, Ms. Corke began
seeing another general practitioner (“GP”), Dr. Jackson, who has remained
her GP. Ms. Corke has also been seen and assessed on two occasions by Dr. B.
Lau, an anaesthesiologist who specializes in pain management. She has been
examined and assessed by Dr. Horlick, an orthopaedic surgeon, and by Ms. Shannon
Smith, an occupational therapist, at the instance of the defendants.

[23]        
Since the Accident, Ms. Corke’s complaints have included pain and
discomfort in various parts of her back and neck, as well as her hips,
buttocks, legs and arms. Further, she complained of depression and difficultly
sleeping. In or about September 2013, Ms. Corke also began to suffer from
jaw pain.

[24]        
Over the three years since the Accident, Ms. Corke has received a
variety of treatments for her symptoms from a number of medical practitioners,
including:

·      
7 physiotherapy treatments between December 8, 2011 and January
28, 2012 at Cedar Valley Physiotherapy and Pain Clinic;

·      
16 chiropractic treatments from Dr. Erickson from March 2012
until June 2012;

·      
43 chiropractic treatments from Dr. Banman over the period
from June 2012 until May 2014;

·      
6 Intramuscular Stimulation (IMS) treatments from Ms. Bay
between September 11, 2012 and November 6, 2012;

·      
13 IMS treatments from Ms. Bay between September 11, 2013
and January 9, 2014;

·      
16 psychotherapy sessions with Dr. Bubber between October
12, 2012 and October 17, 2013; and

·      
63 exercise/training sessions at Core Fitness and Rehab between
May 21, 2013 and April 9, 2014.

[25]        
Ms. Corke testified that she did not obtain any relief for her
various symptoms from the physiotherapy treatments, but did have some temporary
relief from chiropractic treatments from Dr. Banman, although not from the
treatments that Dr. Erickson provided.

[26]        
Ms. Corke said that she did not begin to experience any real improvement
until 2013, when she engaged in an exercise program for core strength building
and began to obtain relief from the IMS treatments recommended by Dr. Lau.
She obtained relief from her jaw pain when she began using a mouth guard at
night.

[27]        
At trial, Ms. Corke complained primarily of mid-back pain that
wraps around her ribs, although she still experiences some neck pain if she
overexerts herself.

Dr. Banman

[28]        
After the Accident, Ms. Corke first saw Dr. Banman on
September 30, 2011, complaining of back and neck pain, buttock pain, shoulder
pain, jaw joint pain and left leg pain. On that occasion, Dr. Banman found
that Ms. Corke’s range of motion in the neck and low back was somewhat
restricted. He felt muscles spasm in her neck, mid-back and lower back.

[29]        
Dr. Banman saw and treated Ms. Corke approximately 44 times
following the Accident. In his report, he stated that over that period of time Ms. Corke
continued to complain of chest pain, back and rib pain, numbness and tingling
of her arms and occasional headaches. He said that he consistently found
tightness of the muscles and tissues along the neck and mid-lower back.

[30]        
Dr. Banman diagnosed the following injuries as arising from the Accident:

a)       a
strain/sprain of the soft tissues of the neck and upper back, mid-back and
lower back;

b)       injury to the facet joints
of the mid-lower back;

c)       injury of the nerves to
the arms, particularly on the right;

d)       injury
of the rib joint attachments in the back (to the spine) and to the rib
cartilage attachments in the front (to the breast bone); and

e)       chronic
pain, meaning pain that has persisted for more than six months.

[31]        
Dr. Banman further stated that Ms. Corke’s recovery did not
start to markedly improve until approximately June 2013, when she began to work
with a personalized trainer.

[32]        
Dr. Banman expressed the opinion that Ms. Corke has not
reached maximum recovery and will continue to benefit from a combination of
chiropractic treatments, physiotherapy and rehabilitation. He does not believe
that she will fully attain her pre-Accident condition and achieve a complete
resolution of her symptoms, particularly regarding her mid-back and chest area,
and will require chiropractic or physiotherapy care on a palliative basis for
relief on a monthly basis for at least the next two years.

Dr. B. Lau

[33]        
Ms. Corke relies heavily upon the opinion of Dr. Lau to
support her assertion that she continues to suffer significant disability. Dr. Lau
is an anaesthesiologist with a subspecialty in Pain Medicine.

[34]        
 Dr. Lau provided two reports: the first dated October 20, 2012,
and the second dated February 6, 2014.

[35]        
Dr. Lau’s first report was based on her interview and physical
examination of Ms. Corke, a review of medical records, including clinical
records and radiological reports, and a number of questionnaires completed by Ms. Corke.

[36]        
In her first report, Dr. Lau stated:

Clinically, Ms. Corke
demonstrated the signs and symptoms commonly associated with the diagnosis of
whiplash-associated disorder (WAD) affecting her head, neck and upper back.

[37]        
Dr. Lau was of the opinion that the Accident caused myofascial contractures
that led to pain and cutaneous sensitization. She stated:

…Myofascial pain results from injury to muscle, fascia
(connective tissue that covers the muscles), ligaments or tendons. It is often
associated with the development of painful trigger points or bands of muscles
and abnormally shortened muscles causing both localized pain and referred pain
including headache symptoms. In Ms. Corke’s case, this is affecting her
scalp, jaw muscles, neck and upper back.

Ms. Corke complained of altered sensation and pain in
the lower part of her right arm. These symptoms are due to irritation of the
nerves of the brachial plexus and classified as thoracic outlet syndrome (TOS).

Given the constellation of head and neck symptoms, she also
fits the criteria for cervicogenic headaches …. She did have a history of
migraine headaches that occurred once yearly. Current headache symptoms are not
the same and are in keeping with cervicogenic headache aggravated by tension
headaches.

Ms. Corke also fits the classic or newer criteria for
fibromyalgia, which looks at the widespread pain and symptom severity.

Classically chronic widespread pain syndromes such as fibromyalgia
result in a multitude of systematic symptoms such as headache, foggy thinking,
abdominal symptoms, wide spread body pain, significant fatigue, disturbed
sleep, and depressive symptoms. These are not easily separable from the general
chronic pain disorders, adjustment disorder or prolonged grief.

Hence Ms. Corke progress in
her symptoms and numerous areas involved may be linked to central
sensitization. Centralization of pain in laymen’s terms is the process of acute
pain transitioning to a chronic pain condition.

[38]        
Dr. Lau further stated that the exact cause of the pain in
widespread pain syndrome is still unknown.

[39]        
It was Dr. Lau’s opinion as of October 2012 that Ms. Corke
symptoms were continuous and resulted in a moderate disability affecting all
activities of her daily living. She felt that Ms. Corke had not reached
maximum medical improvement. She described the extent of her functional
impairment as “partial with the possibility of improvement”.

[40]        
With regard to prognosis, Dr. Lau offered the following opinion:

Myofascial pain also can be treated with a combination of
medications and interventions. Given the extent and severity of her symptoms
beyond 12 months, her prognosis for her recovery to a pain free state is poor.
However, I believe functional improvement is highly possible but will depend on
changes made in multiple aspects of her life. For example, medical therapies
can be trialled but will likely have side effect impact on cognitive function
and bowel and urinary behaviours.

Her myofascial pain may respond
to neuro-prolotherapy or intramuscular stimulation. Predicted prognosis is best
done after these trials.

[41]        
Dr. Lau made a number of recommendations including:

·      
laboratory investigations to rule out such things as lupus and
rheumatoid arthritis;

·      
a regular routine of low impact aerobic exercise and muscle
strengthening exercises to improve her general physical condition;

·      
intramuscular stimulation (IMS) or dry needling;

·      
trial of medications such as Duloxetine, Butrans patch,
pregabalin, cannabinoids such as nabilone or medical marihuana and lidocaine
infusion;

·      
enrolling in a pain self-management program; and

·      
a personal life coach to assist in a review of her life goals and
rebalance of her priorities.

[42]        
Dr. Lau provided an updated report on February 6, 2014. In that
report she stated, based on her review of documents and the history taken from Ms. Corke,
that Ms. Corke’s headaches, neck pain and arm pain had mostly resolved and
that Ms. Corke had not developed other sequelae of chronic widespread
pain, such as irritable bowel syndrome, chronic fatigue syndrome, irritable
bladder syndrome and interstitial cystitis.

[43]        
Ms. Corke reported pain on examination only in her neck and back,
which was aggravated by significant activity. Ms. Corke reported that she
continued to feel fatigue and TMJ symptoms, and that her depression symptoms
had worsened.

[44]        
Ms. Corke continued to complain of altered sensation in her right
arm and left lower arm, which Dr. Lau believed was most likely neurogenic
thoracic outlet syndrome.

[45]        
Ms. Corke’s mid-back pain was focused in the mid-thoracic and upper
lumber region with referred pain under the ribs in the front.

[46]        
Ms. Corke continued to complain of some mild pain in her legs below
her knees.

[47]        
As a result of a patient questionnaire, Dr. Lau felt that Ms. Corke’s
confidence in managing her pain had improved and that she had better coping strategies.

[48]        
Dr. Lau found positive myofascial tender points in the muscles of Ms. Corke’s
upper trapezius, neck, hips, sacroiliac joints and in the area where her ribs
met her sternum at the front. She concluded that Ms. Corke met the classic
criteria for fibromyalgia.

[49]        
She stated that Ms. Corke continued to have residual myofacial trigger
points and taut bands of muscles along her back. She stated at pages 7 – 8 of
her report:

… Trigger points occurring in muscle and fascia are
referred to as [myofascial] trigger points, and they can cause muscle spasm,
stiffness, shortening and fatigue, which hinder muscle lengthening, impair
muscle coordination, reduce range of motion and reduce muscle strength. She
used to have severe pain affecting her entire back. During our first
examination on June 27, 2012, her areas of pain demonstrated active myofascial
trigger points (MTrP), which are hyperirritable spots that generate spontaneous
pain or pain in response to movement, stretch or compression. During today’s
examination, while her neck, upper back and lower back symptoms appear to be
largely resolved, she has detectable latent MTrP, which are painful or
uncomfortable spots on compression only. (Cagnie 2013)

While her pain is centered in the
low thoracic region, there are several deep extensor muscles on both sides of
the spine that insert from the sacral area to the neck. Paraspinal muscles with
active or latent MTrP are in a state of abnormal contracture, stiffness,
reduced movement, and pain can transmit throughout the muscle itself and affect
all levels along the spine to the base of the skull. (Fernandez-de-Ias Penas
2011, Cote 2004)

[50]        
Dr. Lau stated that increased disability, reduced range of motion
and increased pain correlate with increased number of active trigger points. In
her opinion, this can lead to what she termed “central sensitization”, where
pain symptoms can be amplified with little forces or visible bodily injury.

[51]        
Dr. Lau’s recommendations for further treatment and rehabilitation
included:

·      
intramuscular stimulation (IMS);

·      
nutritional supplements;

·      
injections of lidocaine and magnesium, if the IMS treatments are
ineffective;

·      
other drug therapy, for example dantrolene or tizanidine;

·      
use of a night guard for TMJ pain;

·      
home exercise, use of proper posture and use of a TENS machine;
and

·      
psychological counselling.

[52]        
With respect to the future, Dr. Lau stated: “It is most likely that
she will continue to have some myofascial complaints although more disabling
flare-ups will likely be preventable given the above recommendations”. She anticipated
that activities requiring repetitive bending, lifting, pushing and use of her
arms overhead or fixed positions will aggravate Ms. Corke’s pain. Dr. Lau
felt that the prognosis for a pain-free state was guarded, but that further
functional improvement is highly possible.

Dr. Jackson

[53]        
Ms. Corke became a patient of Dr. Jackson after the Accident,
so he was not able to comment on her pre-Accident health. In his medical-legal report
dated February 5, 2014, Dr. Jackson noted the following regarding the
first visit on May 1, 2012:

…On cervical spine examination,
she was non-tender, with good range of motion. However, she had mild tenderness
of rotating the neck to the left, and mild tenderness on tilting the neck to
the left. On examination of the back, she had midline tenderness of the mid and
lower back, full range of motion of the back, and tenderness of the left
paralumbar region.

[54]        
Dr. Jackson prescribed physiotherapy and advised against heavy
lifting. He gave Ms. Corke a note supporting Employment Insurance (EI) for
one week.

[55]        
On May 8, 2012, Dr. Jackson recommended that Ms. Corke return
to her regular work duties, but not participate in any heavy lifting. He
advised Ms. Corke to continue with physiotherapy and exercise.

[56]        
On May 25, 2012, Ms. Corke underwent a CT scan of her cervical
spine and on June 13, 2012, she underwent an MRI of her cervical, thoracic and
lumbar spines. While there were some abnormalities on imaging, Dr. Jackson
did not believe there was any potential surgical intervention necessary to
correct or improve her condition.

[57]        
On September 14, 2012, Dr. Jackson prescribed continued chiropractic
treatments.

[58]        
On September 19, 2012, Dr. Jackson recommended a graduated return
to work plan for Ms. Corke, starting October 2012 and working three days
per week, four hours per day. He also referred her to a psychologist for features
of anxiety/depression.

[59]        
Dr. Jackson noted that, on October 29, 2012, Ms. Corke had a
consultation with Dr. Punambolam, a neurologist, who prescribed Gabapentin
because of bilateral chest wall tenderness.

[60]        
On January 14, 2013, Dr. Jackson prescribed continued
physiotherapy, heat therapy and regular exercise.

[61]        
On May 14, 2013, Dr. Jackson recommended that Ms. Corke
continue with psychotherapy and a rehabilitation program that she had
undertaken.

[62]        
Dr. Jackson reported that, on May 27, 2013, Ms. Corke reported
features of a likely recent flare up of fibromyalgia, a diagnosis that Dr. Lau,
an anaesthesiologist, had made. She was prescribed Gabapentin and Flexeril.

[63]        
On October 7, 2013, Ms. Corke continued to complain of bilateral
chest wall pain and on November 7, 2013, she complained of pain radiating
around her right chest wall.

[64]        
In January 2014, Ms. Corke completed a questionnaire that suggested
that she had a severely depressed mood, but reported that she was not finding
any benefit seeing a psychologist.

[65]        
In summary, Dr. Jackson offered the following diagnoses relevant to
the Accident, based on his own assessment and his review of the report of Dr. Lau:

·      
Post [Accident] traumatic injury to mid thoracic spine, with
secondary myalgia;

·      
Neurogenic thoracic outlet syndrome;

·      
Fibromyalgia;

·      
Cervicogenic headaches;

·      
[Temporomandibular] disorder [TMJ];

·      
Depressive disorder NOS with anxiety features;

·      
Chronic neck and mid-thoracic mechanical pain; and

·      
Whiplash-associated disorder.

[66]        
With regard to a diagnosis of fibromyalgia made by Dr. Lau, Dr. Jackson
stated:

[Ms.] Corke’s diagnosis of
Fibromyalgia is certainly probable, as chronic disabling pain involving the
neck, back and chest for greater than 2 years after a motor vehicle accident
causing just $500 worth of damages to the vehicle in a young woman would be
unusual to be all caused by the motor vehicle accident of 19 September 2011. As
Dr. Lau pointed out, Fibromyalgia may have been brought on by the physical
trauma initially caused by the motor vehicle accident of 19 September 2011.

[67]        
Dr. Jackson stated that Ms. Corke has received partial and, at
times, limited benefit from chiropractic treatments, physiotherapy, core muscle
strengthening exercises and psychotherapy.

[68]        
Dr. Jackson stated that:

I would agree with Dr. Lau’s
assessment of [Ms.] Corke as moderate disability, affecting all activities of
daily living.

[69]        
As for prognosis, Dr. Jackson stated:

As [Ms.] Corke’s symptoms have
lasted beyond 2 years, her prognosis in reaching a pain free state is poor.
However, there is room for functional improvement with [cold laser or therapeutic
laser therapy, low impact aerobic exercise, neural prolotherapy, an
occupational therapy assessment of the home and work environment and supervision
by a personal life coach].

Ms. Jennifer Bay, Physiotherapist

[70]        
When Ms. Bay first saw Ms. Corke on September 11, 2012, for IMS
treatments recommended by Dr. Lau, Ms. Corke was complaining of
cervical and thoracic spine pain, and pain in the right anterior rib cage.

[71]        
Ms. Bay treated Ms. Corke with IMS, which is a type of “dry
needling” that is used to reduce tight bands of muscle. Ms. Corke received
six IMS treatments between September 11 and November 6, 2012. Ms. Corke
experienced nausea during and after the treatments, and complained that her
muscles were extremely sore for up to a week after each treatment. As a result,
the treatments were discontinued.

[72]        
Ms. Corke was referred for further IMS treatments on September 11,
2013. Eleven treatments were provided between that date and January 9, 2014. Ms. Corke
tolerated these treatments normally, experiencing soreness for only two to
three days following each treatment, without nausea.

[73]        
Ms. Corke reported some reduction in pain during the course of the
treatments. Ms. Bay stated:

…[Ms. Corke] demonstrated
full functional active range of motion of the cervical and thoracic spine with
no reports of pain at end range of active range of motion. She stated that she
has been able to keep up with her active exercise program during these recent
IMS sessions as well as activities of daily living.

[74]        
Ms. Bay thinks that Ms. Corke will continue to have
“fluctuating symptoms of diffuse myofascial pain syndrome for years to come”
which can best be managed by a healthy diet and regular exercise. Ms. Bay
is of the view that, vocationally, Ms. Corke would do best with a job that
permits her to have frequent changes of position.

Dr. Horlick

[75]        
Dr. Horlick is an orthopaedic surgeon who saw Ms. Corke on one
occasion on January 31, 2014. In his report, Dr. Horlick noted that Ms. Corke
had two major areas of ongoing complaint when she saw him: (1) pain in her
mid-thoracic spine that radiated to her anterior chest wall, which was exacerbated
with prolonged immobilization and improved with movement; and (2) cervical
spine and para-cervical pain, which was intermittent and usually occurred with
prolonged immobilization or stress, and improved with range of motion and
change of position.

[76]        
Dr. Horlick also noted that Ms. Corke reported that she had
found improvement in her neck complaints since February 2013, and that her
previous complaints referable to her low back, legs and hips had also improved
significantly since February 2013.

[77]        
Dr. Horlick’s examination included the following findings:

·      
full range of motion of her cervical spine;

·      
subjectively tender to palpation along the lower cervical spine
and right and left paracervical regions (he could not detect any focal trigger
points);

·      
nontender to palpation over the sternoclavicular,
acromiclavicular and scapulothoracic regions;

·      
nontender to palpation over her deltoid musculature;

·      
full range of motion of shoulders;

·      
tests for thoracic outlet syndrome were negative;

·      
normal curvature of her thoracic spine but focally tender to palpation
in the T12 region;

·      
normal curvature of her lumbar spine with normal lateral flexion
without apparent discomfort; and

·      
normal rotation through her thoracolumbar spine without apparent
discomfort.

[78]        
Dr. Horlick reviewed the results of various imaging that had been
done with respect to Ms. Corke’s spine (X-ray, CT and MRI) and noted that
nothing of significant structural abnormality was found.

[79]        
Dr. Horlick provided the following opinion:

Her diagnosis would be in keeping with a myofascial injury to
her cervical and thoracic region. She has shown evidence both subjectively and
objectively of improvement. She is now off all medications with respect to
managing her pain, save for an antidepressant. She has been able to attend the
gym on a regular basis and increase her functional capacity in this regard and
is working with a personal trainer. She is now getting benefit from IMS
therapy, which previously she had been refractory to.

In my opinion, she has not reached her maximum medical
improvement, but will continue to show evidence of reduction in pain and
improvement in function with access to a fitness facility and introduction of a
reconditioning type protocol. In my opinion, it is unlikely she will have
progressive impairment or significant disability with respect to her vocation
or avocational pursuits as a consequence of these injuries. She is looking at a
further six months of recovery time.

Because of the paucity of any
objective physical findings on her physical examination and absence of
significant structural abnormality on her imaging studies to date, in my
opinion, she is not more vulnerable to recurrence of these type of injuries now
or in the future with respect to her vocation and avocational pursuits.
Presently, I would recommend that she continue on with a personal trainer for a
further three to six months and IMS treatment for a further three to six
months. However, after this point in time, she will not require any further
assistance with managing her musculoskeletal complaints, which [she] will be
able to do so on a self-directed protocol. I would also anticipate that she
will be able to return to most of her recreational pursuits in the near future.
Although I would endorse her pursuit of a vocational change, in my opinion, her
current subjective complaints do not preclude her from work in her previous
capacity predominantly in a desk job.

Ms. Shannon Smith, Occupational Therapist

[80]        
At this point, I will review the results of the testing done by Ms. Smith
with respect to Ms. Corke’s physical capacity on January 21, 2014, as set
out in her Work Capacity Evaluation. I will discuss her opinions regarding
occupational limitations later in these reasons.

[81]        
Ms. Smith found that Ms. Corke was able to perform jobs that
require reaching, handling, fingering and/or feeling ,and upper limb
coordination skills. She was capable of short interval overhead reaching with
her right and left arms, although prolonged overhead reaching caused feelings
of numbness. No limitations were found for brief interval neck extension. Ms. Corke
was able to use a keyboard for 15 – 30 minutes at a time. Her limitation in
that regard was primarily due to difficulty sitting still for a prolonged
period of time.

[82]        
Ms. Smith found that Ms. Corke was functional for basic stair
climbing, step ladder climbing, crawling and activities requiring basic
balance. She tolerated short intervals of mild to extreme stooping and was able
to crouch and kneel.

[83]        
Ms. Smith found that Ms. Corke had a reasonable sitting
tolerance of approximately 45 minutes to one hour.

[84]        
Ms. Smith opined that Ms. Corke was capable of sedentary,
light and select medium strength work activities on a full time basis.

Other evidence of Ms. Corke’s post-Accident condition

[85]        
Ms. K. Wolf, a friend of Ms. Corke, testified that she met Ms. Corke
when they both worked at a hotel. She testified that Ms. Corke was social,
active, seemed to have lots of energy and was always in high spirits. Prior to
the Accident, she did not observe Ms. Corke making any complaints of
physical ailments.

[86]        
Ms. Wolf testified that since the Accident, Ms. Corke has
often complained about her back, while sitting and driving. She is less
spontaneous and does not like to go out on social outings to the same extent as
before. On one car trip in 2012, Ms. Wolf experienced Ms. Corke
having to stop frequently. She also said that Ms. Corke is a much slower
and more cautious driver since the Accident. In Ms. Wolf’s words, she
drives “like an old lady”. Ms. Wolf admitted that she has only seen Ms. Corke
twice in 2014.

[87]        
Ms. K. Crooks is the woman with whom Ms. Corke and her
daughter share a house. They have known each other since 2009, when their
children attended the same daycare. She testified that they often went to
parks, took walks, went bike riding and did crafts and baked with the children.
Ms. Crooks and Ms. Corke used to go dancing together. She testified
that Ms. Corke was very active and always had a positive attitude.

[88]        
Ms. Crooks testified that after the Accident, Ms. Corke became
withdrawn and needed assistance. Ms. Crooks helped out by often picking up
Ms. Corke’s child from school.

[89]        
In April 2013, Ms. Corke and her daughter moved in with Ms. Crooks
and her son, who has some special needs emotionally and mentally. Ms. Crooks
testified that Ms. Corke helps out around the house mostly by helping with
her son. Sometimes she helps with the sweeping. From her observation, Ms. Corke
has the greatest difficulty with sitting for long periods of time. Ms. Crooks
finds Ms. Corke more reserved and temperamental than she was before the Accident.

Non-pecuniary damages

[90]        
The overriding consideration when assessing non-pecuniary loss is “an
appreciation of the individual’s loss”: Lindal v. Lindal, [1981] 2 S.C.R.
629 at 638. The factors that influence an award of non-pecuniary damages
include the age of the plaintiff, the nature of the injury, the severity and
duration of pain, disability, emotional suffering, loss or impairment of life,
impairment of family and social relationships, impairment of physical and
mental abilities, loss of lifestyle and the plaintiff’s stoicism (which should
not generally penalize the plaintiff): Stapley v. Hejslet, 2006 BCCA 34
at para. 46, leave to appeal ref’d [2006] S.C.C.A. No. 100.

[91]        
Despite the very low impact forces of the Accident, I am satisfied that Ms. Corke
sustained injury to her mid-back and neck as a result. Even Dr. Horlick
accepted that Ms. Corke suffered myofascial injury to her cervical and
thoracic spine.

[92]        
Dr. Horlick found little, if any, objective support for the chronic
pain described by Ms. Corke and attributed the lack of recovery to general
lack of fitness. He noted, in particular, that Ms. Corke’s subjective
complaints decreased when she engaged in a physical fitness program. He is of
the view that Ms. Corke has not reached maximum recovery and that she will
continue to experience further recovery if she continues with regular exercise,
particularly core strengthening exercises.

[93]        
I accept the evidence of Ms. Corke that the pain did spread to
other parts of her body over time and became chronic, even though the precise
cause of the continuing and spreading pain is difficult to determine.

[94]        
In her first report, Dr. Lau concluded that Ms. Corke
exhibited symptoms of fibromyalgia and expressed the belief that her chronic
widespread pain was likely due to centralization, whereby the pain in one area
of the body transitions to other areas. In her second report, Dr. Lau felt
that Ms. Corke met the classic criteria for fibromyalgia, but had not
developed other common sequelae of chronic widespread pain.

[95]        
By the time of Dr. Lau’s second report, Ms. Corke had
undertaken a program of core strengthening and physical fitness and had
obtained significant relief from IMS, after an initial aborted attempt with
that treatment modality. As Dr. Lau noted, by February 2014, Ms. Corke’s
symptoms related to her neck and arms had mostly resolved and her primary
continuing symptoms were now focused in her mid-thoracic and upper lumbar spine
as opposed to her entire spine. In addition, by this time, Ms. Corke was
coping better with her ongoing symptoms, both psychologically and functionally.

[96]        
Dr. Lau was doubtful that Ms. Corke would achieve full
recovery and believed she would continue to have some ongoing myofascial complaints
with more disabling flare-ups from time to time. However, she was also of the
opinion that further functional improvement was highly possible.

[97]        
Dr. Lau’s opinion that Ms. Corke could expect further functional
improvement is shared by her family physician, Dr. Jackson.

[98]        
I find that as a result of the Accident, Ms. Corke suffered injury
resulting in myofascial pain that spread, over the next several months, from
her back and neck to other areas of her body. With treatment and exercise, the
pain became more localized in her upper back and chest area so that, by
approximately two and a-half years after the Accident, the pain was felt mainly
in her thoracic spine and chest.

[99]        
In my opinion, Ms. Corke undertook appropriate treatments as
recommended by her medical advisors. On a review of the evidence, I am
satisfied that Ms. Corke has experienced a reduction in both the number
and severity of her symptoms as a result of the medical treatments and the
exercise programs that she has undertaken.

[100]     It is my
opinion that while Ms. Corke is not currently asymptomatic and will likely
continue to suffer some ongoing discomfort, she has recovered significantly
from the effects of the Accident. I accept that Ms. Corke will likely
experience flare-ups from time to time resulting in increased pain, which may
be treated by IMS treatments. I am of the opinion, however, that Ms. Corke
has achieved significant functional recovery and is likely to achieve further
functional recovery. She is currently able to attend to the physical demands of
daily living, although she has to be careful to pace herself so that she does
not aggravate her symptoms.

[101]     Ms. Corke’s
symptoms have affected her ability to enjoy her social life with her friends
and her daughter. She is less able to entertain, go to movies and go on long
journeys.

[102]     I am not
satisfied that Ms. Corke is at any higher risk of future injury as a
result of the Accident.

[103]     In terms
of quantum of damages, I have reviewed the cases provided by Ms. Corke,
namely: Foran v. Nguyen, 2006 BCSC 605 ($90,000); Ahonen v. Thauli,
2013 BCSC 1607 ($100,000); Tabet v. Hatzis, 2013 BCSC 1167 ($100,000); Morena
v. Dhillon, 2014 BCSC 141 ($130,000); and Stapley ($175,000 after appeal
from jury award of $275,000).

[104]     In Stapley,
the Court reviewed a number of decisions and concluded that they suggest a
range of $36,000 to $100,000 for a plaintiff who has suffered a mild to
moderate whiplash injury and who, as a result, has lost a degree of enjoyment
of life’s amenities. That is, of course, quite a broad range and the Court of
Appeal in Stapley ultimately awarded a much higher amount than this
suggested range due to the unique circumstances.

[105]     I have
also reviewed the cases provided by the defendants, namely: Carter v. Zhan,
2012 BCSC 595 ($35,000); Golam v. Fortier, 2005 BCSC 598 ($25,000); and Vela
v. MacKenzie, 2012 BCSC 438 ($27,000).

[106]     I see
little point in reviewing the facts of these cases in detail given that the
assessment of damages is so fact specific. Generally, however, the cases relied
on by the defendants involve plaintiffs whose symptoms were considerably less
severe, of shorter duration and had lesser impact on the amenities of life.

[107]     I conclude
that an appropriate award to compensate Ms. Corke for her pain, suffering
and loss of amenities is $75,000. In assessing damages under this head, I have
also taken into account the impact that Ms. Corke’s injuries have had on
her ability to do housework and care for her daughter, and do not intend to
make a separate award for loss of housekeeping capacity.

Loss of income and earning capacity

Employment history before the Accident

[108]     Ms. Corke
worked at a number of different kinds of jobs prior to the Accident, including retail
sales, bartending, work at a ski resort, hotel reception and seasonal work at a
cranberry packing plant. She also drew EI benefits when not employed or relied
on social assistance. Her most consistent employment in the period from 2007
until 2010 was seasonal work at the cranberry packing plant.

[109]     In 2010, Ms. Corke,
while unemployed, enrolled in a Federal Government internship program sponsored
by the YMCA. She was assigned to the Matsqui Institution, a Correctional Services
Canada (CSC) institution in Abbotsford, British Columbia, after spending
approximately one month of general training in Vancouver.

[110]     While
interning at Matsqui in the office of the assistant warden, Ms. Corke
obtained her GED designation.

[111]     On
February 24, 2011, Ms. Corke was offered a full time casual CR4 position
as Administration Services Assistant in the office of the Assistant Warden at Matsqui
at a salary equivalent of $42,897 per year. That contract was to last until
July 4, 2011. Under the rules of the Public Service Employment Act, S.C.
2003, c. 22, casual employees, such as Ms. Corke, are only able to
work a maximum of 90 days in each calendar year within the same department.

[112]     Ms. Corke’s
first casual position came to an end on May 12, 2011, when Ms. Corke left
the job because she had to undergo an operation. By this time, Ms. Corke
had worked a total of 51 days.

[113]     Ms. Corke’s
supervisor, Mr. Mark Bussey, the Assistant Warden (Operations) at Matsqui,
testified that Ms. Corke performed her job as his personal assistant to a
high level. She had an excellent work ethic, worked well with others, and was
constantly reading policies and asking questions. He encouraged her to seek
advancement and she expressed an interest in becoming either full time clerical
staff (CR4) or a corrections officer (CX). Mr. Bussey’s intention was to
try to obtain a full time, indeterminate position for her; he provided her with
a letter of recommendation and recommended her to other managers in Matsqui, in
case opportunities for work arose the following year.

[114]     On June
28, 2011, Ms. Corke obtained her second casual position with a start date
of July 11, 2011 and a termination date of September 2, 2011, at a salary
equivalent of $47,132 per year. She had just completed that contract when she
was involved in the Accident. Under this contract, Ms. Corke worked 39
days. Ms. Corke had, therefore, worked the maximum allowable 90 days in
2011 when the second contract came to an end.

[115]     At one
point not long before the Accident, Ms. Corke applied for the position of
CX1 when an opening was posted. She sat for the correctional officer intake
selection examination, but did not pass that examination. Mr. Bussey
testified that failing the test the first time is not an uncommon experience.

[116]    
Ms. Corke’s earnings in the five years and nine months prior to the
Accident were as follows:

Employment post-Accident and past loss of income

[117]     Following
the Accident, Ms. Corke had no opportunity to return to CSC because she
had worked the maximum days allowed for that year. She had not lined up any
casual work with a different Federal Government Department once her work at CSC
had reached the maximum allowable.

[118]     After the Accident,
Ms. Corke returned to the part-time position at the cranberry packing
facility, where she had previously worked. She was there from September 26,
2011 until November 4, 2011 and earned $3,342.

[119]     On January
5, 2012, Ms. Corke was offered another casual position with CSC as
Assistant to the Deputy Warden of Matsqui. That contract was for a period
ending March 31, 2012. Ms. Corke completed this contract and worked a
total of 55 days.

[120]     Ms. Corke
obtained another casual contract commencing on April 1, 2012. This contract was
to last until June 7, 2012. However, Ms. Corke only worked 16 days of that
contract, stopping on April 25, 2012, because of the effects of the Accident.
Her chiropractor at the time, Dr. Erickson, and her family doctor, Dr. Jackson,
supported her taking time off work because of the Accident.

[121]     If Ms. Corke
had not taken time off work she would have been able to work a total of 90 days
under the two contracts in 2012, whereas she only worked 71 days. The
defendants concede that Ms. Corke missed 19 days work as a result of the Accident.
That translates to a loss of $3,420 based on 7.5 hour days at $24 per hour.

[122]     Ms. Corke
did not seek any other form of employment in 2012. She was hoping that a posting
would come up for a correctional officer position for which she hoped to apply.

[123]     Ms. Corke
next obtained a casual contract with CSC on January 24, 2013, which was to last
until June 5, 2013. This contract offer was originally stated to be for five days
per week for 7.5 hours per day (37.5 hours per week). Ms. Corke testified
that was a mistake and that she had negotiated a contract working five hours
per day. The contract offer was amended to provide for 25 hours per week. According
to her time sheets, Ms. Corke worked 37 days under this contract up to
March 27, 2013, although she did not always work a full five hours per day.

[124]     On April
4, 2013, CSC advised Ms. Corke that her contract would be terminated as of
May 10, 2013. Ms. Corke agreed that the termination of the contract was
not related to any physical limitations as a result of the Accident. Time
sheets for the time after March 27, 2013 were not provided, however, it appears
that an additional 30 working days were available up to and including May 10,
2013, for a total of 67 days.

[125]     On July
18, 2013, Ms. Corke was offered another casual appointment by CSC. This
one was to be for the period from July 23, 2013 to September 12, 2013 for three
days per week and 7.5 hours per day (22.5 hours per week). Under this contract,
Ms. Corke worked as an assistant to the Assistant Warden, Mr. Bussey.
Mr. Bussey testified that Ms. Corke struggled at work and her
performance was not the same as it had been when she worked for him previously,
although Ms. Corke did complete the three day per week contract. That fact
is also confirmed by her Record of Employment.

[126]     The total
number of days worked in 2013, therefore, appears to be 89, one short of the 90
possible days.

[127]     The
plaintiff has not established that the one day that she was short of the
maximum in 2013 was due to the Accident.

[128]     I find
that under the first contract in 2013, Ms. Corke worked only five hours
per day, rather than the usual 7.5 hours per day as a result of her physical
limitations caused by the Accident. This represents a loss of 167.5 hours (67 x
2.5) at $24 per hour, or $4,020.

[129]     Ms. Corke
did not return to work for CSC in 2014. Indeed, she would not have been able to
do so on a casual basis because no contracts were available to her.

[130]     Ms. Corke
testified that by early 2014 she had decided not to pursue a career with CSC.
She decided that she would like to become a rehabilitation assistant. By the
time of the trial, she had not made application to any schools to pursue that
career.

[131]     I gather
that Ms. Corke has been supporting herself on social assistance since she
last worked at CSC, even though she is not, in my opinion, disabled from
employment as a result of the Accident.

[132]     In
accordance with the foregoing, I find that Ms. Corke’s actual past loss of
income to the date of trial amounts to $7,440.

Past loss of earning capacity

[133]    
The test for establishing past loss of earning capacity was described in
Hardychuk v. Johnstone, 2012 BCSC 1359 at paras. 175 – 178:

[175]  An award of damages for loss of earning
capacity, whether in the past or the future, represents compensation for a
pecuniary loss. The goal is to restore the plaintiff to the position he or she
would have occupied but for the defendant’s negligence. Accordingly,
compensation for past loss of earning capacity is to be based on what the
plaintiff would have, not could have, earned but for the accident-related
injuries: Rowe v. Bobell Express Ltd., 2005 BCCA 141; M.B. v. British
Columbia, 2003 SCC 53; Gregory v. Insurance Corporation of British
Columbia, 2011 BCCA 144.

[177]  The burden of proof of actual past events is
a balance of probabilities. An assessment of loss of both past and future
earning capacity, however, involves consideration of hypothetical, not actual,
events. The plaintiff is not required to prove hypothetical events on a balance
of probabilities. Rather, 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; Falati v. Smith, 2010 BCSC 465; aff’d 2011 BCCA
45.

[178]  As with the loss
of future earning capacity, the court’s task is to assess damages for past loss
of capacity rather than to calculate them mathematically. Allowances for
contingencies should be made and the award must be fair and reasonable taking
into account all of the circumstances: Falati.

[134]     Ms. Corke
claims damages for past loss of earning capacity during the time period from
2013 until the date of trial based on her assumption that, but for the Accident,
there was a real and substantial possibility that she would have qualified as a
corrections officer and obtained employment at that position as early as 2013.

[135]    
On this basis, Ms. Corke claims damages for past loss of earning
capacity based on the difference between what she says she could have earned as
a CX1 ($70,000 per year) and what she, in fact, earned for 2013 and 2014. Ms. Corke
submits the past loss is as set out indicated below:

*This figure is derived from Ms. Corke’s
T4, T4E and T7007 statements for 2013.

[136]     The
evidence in relation to this claim can be summarized as follows. In August
2012, Mr. Bussey forwarded to Ms. Corke a posting from the Canada
Public Service Commission advertising for applicants for the position of
Corrections Officer, CX1, in various regions of Canada. Mr. Bussey
testified that this poster targeted women, aboriginal persons and visible
minorities.

[137]     The
process for gaining employment as a CX1 was outlined by Mr. Bussey in his
evidence, as well as in the posting. The first step is to submit an application
pursuant to a posting. The applications are screened and those who are selected
for further assessment are required to complete a Pre-Employment Questionnaire.
The prospective employee must then pass a written examination. If the person
passes the examination, she or he must undergo a panel interview, physical and
psychological examination and background check. Once these requirements are
met, the person is placed in a partially qualified pool of candidates, from
which persons are selected to attend the training program in one of the four
regions of CSC. Mr. Bussey testified that the wait in the partially
qualified pool can be anywhere from six months to three years. The training is
undertaken at the prospective employee’s own expense. Upon successful
completion of the training program, a prospective employee is placed in a pool
of qualified candidates from which persons are selected for hiring as probationary
corrections officers.

[138]     Mr. Bussey
testified that the process for qualification for and hiring of full time
indeterminate CR4 positions is similar, although not as rigorous. These
positions involve a written examination and interview, but the physical and
security checks are not as rigorous and there is no onsite recruitment training
prior to being placed in the qualified pool. Mr. Bussey’s understanding
was that persons in the CR pool generally have to wait longer for an
indeterminate position than those in the qualified CX pool.

[139]     Ms. Corke
did not respond to any posting for CX or CR positions in 2012 because she was
not feeling at her best and she believed that she would not be able to pass the
examinations. In addition to her physical pain, Ms. Corke said that during
that time she was experiencing what she called “mental fog”.

[140]     Ms. Corke
submits that she would have been the perfect candidate for the August 2012 posting
if it had not been for her injuries. She submits that she possessed:

·      
youth but with maturity;

·      
a job coach, namely Mr. Bussey;

·      
familiarity with the language used in CSC; and

·      
administrative exposure to the CSC environment.

[141]     Ms. Corke
submits that she was a “shoe-in” candidate and that it was more than highly
possible that she would have been hired as a CX1 in 2013, if it had not been
for the Accident.

[142]     I cannot
accept that submission.

[143]     If Ms. Corke
had retaken and passed the CX1 examination in the fall of 2012, there were several
more steps that she would have had to successfully complete, all of which would
have taken some time. Even if she had completed each of these steps, it is
likely that it would have been well into 2013, or longer, before she was in the
qualified pool and eligible for a permanent position as a CX1.

[144]     However, at
each step of the way along the route to becoming a corrections officer there is
potential for failure. In my opinion, Ms. Corke’s work history as a casual
CR employee at CSC did not make her a “shoe in” for the position of correction
officer, which is a much different kind of position.

[145]     I am not
satisfied that there is a real and substantial possibility that Ms. Corke
would have succeeded in becoming a CX1 in 2013, even if she had not been
involved in the Accident. I am not satisfied that August 2012 was a “career”
moment for Ms. Corke.

[146]     In my
opinion, it is likely that if Ms. Corke had not been involved in the Accident,
she would have continued to work on a casual basis for CSC, just as she did, in
fact, work. She returned to the casual positions that were available in 2012
and 2013. In 2014, she did not work as a casual administrative clerk at CSC
because no such positions were available.

[147]     I do believe
that it is possible that Ms. Corke could have been successful in pursuing
a career as an administrative assistant with CSC if she had not been injured in
the Accident, given that she had demonstrated skill in that area while working
on a casual contract basis, according to Mr. Bussey.

[148]     In October
2013, Ms. Corke took the examination for the position of Administrative
Assistant CR4, but she failed the examination. Ms. Corke testified that
she “missed” a page of the examination because she was experiencing “foggy brain”
as a result of the Accident.

[149]     She may
have chosen to take the examination sooner or may have been more successful on
the exam had she not been suffering the effects of the Accident, however, it is
unlikely, in my view, that she would have completed the process required to make
the qualified pool and actually found employment prior to the date of the trial.

[150]     Accordingly,
I conclude that Ms. Corke’s past loss to the date of trial is the actual
loss as I determined it to be earlier in my reasons.

Loss of Future Earning Capacity

[151]    
In Hardychuk, Dickson J. set out the principles to be applied in
considering a claim for loss of future earning capacity at paras. 192 – 197:

[192]    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; Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260; Pett v. Pett, 2009
BCCA 232.

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

[194]  Insofar as is possible, the plaintiff should
be put in the position he or she would have been in, from a work life
perspective, but for the injuries caused by the defendant’s negligence. Ongoing
symptoms alone do not mandate an award for loss of earning capacity. Rather,
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 its occurrence: Lines v. W & D Logging
Co. Ltd., 2009 BCCA 106; Moore v. Cabral et. al., 2006 BCSC 920; Gregory
v. Insurance Corp. of British Columbia, 2011 BCCA 144.

[195]  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 and will be more or less
appropriate depending on whether the loss in question can be quantified in a
measurable way: Perren v. Lalari, 2010 BCCA 140.

[196]    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; Gilbert
v. Bottle, 2011 BCSC 1389.

[197]  The capital asset
approach involves considering factors such as i) whether the plaintiff has been
rendered less capable overall of earning income from all types of employment;
ii) is less marketable or attractive as a potential employee; iii) has lost the
ability to take advantage of all job opportunities that might otherwise have
been open; and iv) is less valuable to herself as a person capable of earning
income in a competitive labour market: Brown; Gilbert.

[152]    
Madam Justice Southin’s words in Palmer v. Goodall (1991), 53
B.C.L.R. (2d) 44 at 59 (C.A.), leave to appeal ref’d [1991] S.C.C.A. No. 54,
are also relevant to circumstances of this case:

In many cases, a plaintiff will
show that in order to earn as good a living as before i.e. to restore his
earning capacity he requires retraining. The cost of retraining, if it is a
reasonable proposition, is a proper element of compensation.

[153]     Ms. Corke
advances a claim under this head based on a comparison of what she could have
made as a CX1 until retirement at age 65 and what she is now capable of
earning. Ms. Corke submits that as a CX1 she could have earned
approximately $70,000 per year. This is based on Mr. Bussey’s evidence
that the base salary for a CX1 is approximately $66,000 per year and that there
is generally an opportunity to work overtime, raising the salary potential to
$70,000 to $75,000 per year.

[154]     With
regard to what Ms. Corke is capable of earning, she now hopes to train as
a rehabilitation assistant. She believes that she will find it easier to
tolerate the work of a rehabilitation assistant better than she could the work
of an administrative assistant. She believes that the salaries of those two
occupations would be comparable, in the range of $46,000 to $47,000 per year.

[155]     Earlier in
these reasons, I referred to the Work Capacity Evaluation done by Ms. S.
Smith and set out some of the findings of Ms. Smith based on the physical
testing that she administered to Ms. Corke. Ms. Smith did not provide
any express opinion as to whether or not Ms. Corke currently has the
functional capacity to perform the job of a corrections officer. That may be
because by the time Ms. Corke saw Ms. Smith, she had abandoned the
idea of pursuing a career with CSC, either as a corrections officer or as an
administrative assistant and, instead, planned to become a rehabilitation
assistant.

[156]     Ms. Smith
did, however, comment on Ms. Corke’s ability to work as an administrative
assistant and a rehabilitation assistant. As I have already noted, Ms. Smith
found that Ms. Corke was capable of limited, light and some medium
strength activities, reaching, keyboarding and periodic bending and stooping. Ms. Corke’s
primary functional limitation, as assessed by Ms. Smith, was for prolonged
sitting. She found that Ms. Corke could tolerate sitting for 45 minutes to
one hour at a time but only 15 to 30 minutes of work-intensive sitting, which I
understand to mean the kind of sitting that is involved if one is at a desk and
working intensively reading or keyboarding. Ms. Smith is of the opinion
that Ms. Corke can work full time in jobs meeting the foregoing
restrictions.

[157]    
Ms. Smith was of the view that it is Ms. Corke’s limitations
regarding not being able to sit for prolonged periods of time that would make
it difficult for her to work as an administrative assistant. Ms. Smith
commented as follows:

The results of this assessment
show that Ms. Corke’s current work intensive sitting capacity is
sufficiently compromised that it would be difficult for her to meet the demands
of most Administrative Assistant jobs on a part-time or full time basis. If a
specific work setting allowed for regular opportunities for standing as part of
the natural work flow (e.g. accessing a file room or mail room; going to the
printer or fax machine) and combined other job duties that allowed for
standing/weight bearing, as was the case when she was working as a Construction
Liaison Officer post-accident, she would be able to meet the demands of this
work on a full time basis. Alternatively, if an employer were willing and able
to accommodate her modified sitting posture (i.e. that maximizes her sitting
capacity) and ergonomic modifications (i.e. a sit-stand desk), th[e]n she would
also likely be capable of performing this work on a full time basis. Without
these specific modifications and/or accommodations, it is unlikely that she
would be successful in working in this capacity on a durable basis.

[158]     Ms. Smith
believes that Ms. Corke is able to meet the physical demands of the job as
a rehabilitation assistant in most settings, provided she can avoid prolonged
stooping. She may require assistance with patient transfers if she is working
with heavier adults and she would need to take breaks from prolonged sitting
when engaged in tasks such as report writing.

[159]     Mr. Derek
Nordin, a vocational consultant, expressed the opinion that a career as a
rehabilitation assistant would be an appropriate choice for Ms. Corke
based on her interest and aptitude. Mr. Nordin provided evidence that
there is a four-semester program at Capilano University for a diploma as a
Rehabilitation Assistance. He gave evidence that the cost of the program is
approximately $3,934 per year, plus an additional $2,100 per year for books and
supplies.

[160]     Ms. Corke’s
claim for damages for loss of opportunity in the future, based upon the loss of
an opportunity to become a corrections officer, suffers the same difficulty as
her claim for past loss of opportunity. I am simply not satisfied that there
was a real and substantial possibility that, but for the Accident, Ms. Corke
would have become a corrections officer. In my view, therefore, Ms. Corke’s
loss of opportunity claim based on a difference in earnings between that of a
CX1 and the occupation that Ms. Corke can now pursue must fail.

[161]     However, I
am satisfied that if Ms. Corke had not been injured in the Accident there
is a real and substantial possibility that she would have applied for a
position as a full time administrative assistant at CSC, and a real and
substantial possibility that she would have eventually succeeded in obtaining
such a position. She had the benefit of having worked a number of casual
contracts with CSC. She was, therefore, familiar with the work and the skills
required. She had impressed Mr. Bussey with her work ethic before the Accident
and would likely have made a good impression on an interview.

[162]     The
difficulty is in being able to say when she might have achieved such a
position, given the time it takes to progress through the process and the
uncertainty of when an opportunity might have arisen. The only thing I know is
that there was an opportunity in October 2013, in which Ms. Corke was not
successful. If that was the first opportunity, and if Ms. Corke had not
been suffering any symptoms from the Accident, she might have become employed
full time by sometime in 2014. If she had been symptom-free and still failed
the test in 2013, then it might have taken an even longer time to reach full time
employment. It is certainly possible that it would have taken Ms. Corke
until some time in 2015 to achieve full time employment as an administrative
assistant, even if she had not been injured in the Accident.

[163]     The
defendants submit that Ms. Corke is still capable of pursuing that career
path. The defendants submit that Ms. Smith’s evidence is that Ms. Corke
is capable of performing the tasks of an administrative assistant with some accommodation
and that it is likely that she would be given the necessary accommodation by
CSC. There is no evidence on that subject, other than the fact that Mr. Bussey
was able to help Ms. Corke obtain a casual contract with reduced work
hours. Whether or not CSC might provide the necessary accommodation, I am
satisfied that Ms. Corke is, at least, a less attractive candidate for the
position as a result of her continuing symptoms. In that respect, she has suffered
a loss of a capital asset.

[164]     The
difficulty is in assessing the value of the loss. One must consider that even
though the extent that Ms. Corke’s ability to work in the future as an
administrative assistant with CSC may be impaired as a result of the Accident,
she has now chosen another career path, namely a rehabilitation assistant. She
appears to have the aptitude for and can meet the physical demands of that job
and it apparently will provide her with a comparable income, according to Ms. Corke.
In the long run, she ought to be in the same position that she could have been
but for the Accident. It appears that it will take approximately two years of
training to qualify as a rehabilitation assistant, unless Ms. Corke can
take more than two semesters per year, but it would have taken some time for
her to qualify as an administrative assistant as well. It seems to me that she
was able to start that program in September 2014, which would mean that she
could have completed it by May 2016.

[165]     In my
opinion, this is not a case where one can determine with any degree of
precision the value of the lost capacity. Bearing in mind the fundamental
principle that a plaintiff should be put in as good a position but no better
position as she would have been but for the Accident, I conclude the fairest
way to assess the value of the loss under this head is by awarding Ms. Corke
the equivalent to the cost of training to become a rehabilitation assistant,
which, according to Mr. Nordin, is approximately $12,000, plus the
equivalent of one year’s salary at a potential of approximately $46,000 per
year. I find that the retraining will restore her earning capacity. In arriving
at this assessment of loss, I take into account the following contingencies:
(1) the possibility that Ms. Corke would not have been successful in
passing the examination for an administrative assistant position; (2) the possibility
that she would not have successfully completed the other steps necessary to
obtain a full time position; (3) the potential delay in Ms. Corke
achieving full time employment as an administrative assistant even if she had
passed the examination and completed the other steps necessary to obtain a
position.

[166]     I,
therefore, award Ms. Corke $58,000 for future loss of capacity.

Cost of Future Care

[167]     Ms. Smith
provided a list of recommendations for Ms. Corke’s future care. Depending
on the frequency of replacement, the present value of the goods and services
recommended by Ms. Smith is between approximately $15,000 and $35,000,
according to an economist, Mr. Robert Carson.

[168]    
In assessing this aspect of Ms. Corke’s claim, I apply the test set
out in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 84 (S.C.), aff’d
(1987), 49 B.C.L.R. (2d) 99 (C.A.):

[The] authorities establish (1)
that there must be a medical justification for claims for cost of future care;
and (2) that the claims must be reasonable.

[169]     Cost of
future care should be awarded for assistance, equipment and facilities directly
related to the plaintiff’s injuries, which can be used to sustain or maintain
the physical or mental health of the plaintiff. In so far as money claimed will
serve only as solace by providing substitute pleasures, it falls under the head
of non-pecuniary loss, not cost of future care: Milina at paras. 193
and 195.

[170]     The items
claimed under the head of costs of future care are as follows.

Physiotherapy

[171]     Ms. Smith
recommends IMS or other therapeutic interventions six to eight times each year
for a period of five to ten years. The net present value, based on a cost of
$60 per session, is between $1,652 and $4,388 according to the report by Mr. Carson.

[172]     Ms. Corke
has obtained relief from pain symptoms from IMS and Dr. Lau recommends
that she continue with such treatments, although she does not specify a time
frame for the treatments. She suggests that if Ms. Corke does not have
progressive pain relief within 8 to 10 months, she may have to try another form
of treatment, such as lidocaine injections. Dr. Horlick supports a
continuation of IMS treatments, but only for a further three to six months, by
which time he believes that Ms. Corke will not need further assistance
managing her symptoms, provided she continues with her exercise regime to keep
fit.

[173]     Based on a
consideration of the medical evidence as a whole, including the opinions of
both Dr. Lau and Dr. Horlick that improvement is either possible (Dr. Lau)
or probable (Dr. Horlick), I am of the opinion that it would be reasonable
to provide for a further two years of IMS treatments, six times each year, and
three treatments per year for a further three years to deal with potential flare-ups.
Using the present value charts provided by Mr. Carson, such treatment has
an associated cost of approximately $1,015.

Occupational Therapy – one time

[174]     Ms. Smith
is of the opinion that Ms. Corke would benefit from assistance from an
occupational therapist for additional education on pain management and support
in implementing coping strategies in the context of a return to school/work.
The cost associated with this is estimated to be $105 per hour for six to eight
hours, for a total cost of $630 to $840.

[175]     Dr. Lau
suggested that Ms. Corke would benefit from an occupational therapist
assessment of home and leisure activities and sleep supports, but does not
indicate what aspects of home and leisure activities require advice from an
occupational therapist. Based on all of the medical evidence, it is my view
that Ms. Corke is not in danger of causing herself any additional injury
by engaging in these activities in so far as she is able to do so. With the
exception of making a particular recommendation for bed and/or pillow support,
I do not see why Ms. Corke would require anyone to tell her how to pace
herself. Furthermore, according to Ms. Smith, Ms. Corke has reached
the point where she is able to function with the demands of daily life and able
to perform full time work in jobs that do not involve prolonged sitting or
stooping and do not require heavy strength. I am not satisfied that this
recommendation is justified on the evidence.

Kinesiologist/personal trainer

[176]     Ms. Smith
recommends that Ms. Corke continue with a personal trainer for 10 to 12
sessions to help her towards a self-directed exercise/fitness program. The
medical evidence indicates that it will be important for Ms. Corke’s
continuing recovery to become and remain fit. In my view, the use of a personal
trainer for this purpose is warranted. The estimated cost is $500 to $600,
which I find to be reasonable. I allow damages of $600 for the cost of a
personal trainer.

Gym membership

[177]     While membership
in a gym may not be strictly required in order to maintain a fitness program, I
am of the view that attending a gym where she can access a variety of equipment
and employ a variety of exercise strategies would be beneficial for Ms. Corke’s
rehabilitation. In my view, membership in a gym for two years, at a cost of
approximately $920, is reasonable.

Chiropractic treatments

[178]     While Ms. Smith
suggests chiropractic treatments up to ten times per year for up to ten years
for symptom management, ongoing chiropractic treatments are not supported by
the medical experts and I decline to make any award for future chiropractic
treatments.

Housekeeping services

[179]     Ms. Smith
suggests that while Ms. Corke is currently able to manage basic household
chores by using a paced approach, when she returns to school and/or work she
will need four to six hours per week of housekeeping support.

[180]     I am not
satisfied this cost is necessary. Ms. Corke shares a home with Ms. Crooks
and, therefore, is not responsible for all of the household chores. Based on
the medical evidence with regard to her current status, I believe that Ms. Corke
can continue to adopt a paced approach to contribute her fair share of
housekeeping duties without outside help. I am not satisfied that the medical
evidence supports this future cost.

Ergonomic chair, sit-stand desk and voice recognition software

[181]     Considering
the nature of the work of a rehabilitation assistant, as it was described, I am
not persuaded that these pieces of equipment are necessary to enable Ms. Corke
to perform the functions of that job.

Medications

[182]     Ms. Smith
suggests that Ms. Corke will have to take Sertraline, an antidepressant
medication, and non-prescription pain relievers, such as Tylenol and/or Advil,
for the next five to ten years. She is apparently taking Sertraline at the
present time.

[183]     I am
unable to find support in the evidence of the doctors of the need for
antidepressant medication for such a long period of time.

[184]     In my
opinion, an allowance of $1,000 for medications will provide ample compensation
for the future cost of medications necessary to deal with ongoing symptoms.

Special Damages

[185]     Ms. Corke
put forward a claim for special damages totalling $11,525.62. The defendants
accept most of the items claimed as appropriate but dispute three items:

(a)      Chiropractic treatments –
$2,560

The defendants submit that Ms. Corke
had attended for chiropractic treatments in the past prior to the Accident and
would likely have continued to do so on a regular basis if she had not been
injured. I am satisfied, however, that the chiropractic treatments for which
the claim is made were undertaken by Ms. Corke as a result of the injuries
that she sustained in the Accident and allow them.

(b)      Orthopaedic sandals –
$55.99

I accept the defendants’ submission
that the sandals were prescribed because of Ms. Corke’s congenitally
inverted feet and flat arches and not because of the Accident. This item is
disallowed.

(c)      Mouth guards – $655.35

I accept the defendants’ submission
that the TMJ issue, which arose in 2013, has not been proven to be the result
of the Accident and disallow this item.

[186]     I,
therefore, allow special damages in the amount of $10,814.28.

Summary of Damages

[187]    
In summary, I award Ms. Corke the following damages:

Costs

[188]     Subject to
any circumstances of which I may be unaware, Ms. Corke is entitled to her
costs in accordance with Rule 15-1(15) of the Supreme Court Civil Rules,
B.C. Reg. 168/2009, plus taxable disbursements.

“B.M.
Joyce J.”