IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150217

Docket: 142917

Registry:
New Westminster

Between:

Kathryn R. McKay

Plaintiff

And

Sukhdarshan Singh
Raiwal

Defendant

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
This action arises out of a motor vehicle accident that occurred on July
13, 2010 in Abbotsford, British Columbia. The plaintiff, Kathryn McKay is
seeking damages for personal injuries. Liability is not in issue.

Background

[2]            
Ms. McKay was born on June 3, 1992. She attended Yale Secondary School
from which she graduated with honours in 2010. She was awarded a Lifetime
Champion Award that recognized her academic, athletic, and leadership skills.
At the time of graduation she had been accepted into university and her
intention was to attend commencing in January 2011.

[3]            
Ms. McKay started work at 14, first working at a raspberry farm picking
fruit and stocking orders. She then worked at a grocery store as a cashier. At
age 16 she was employed as a cashier at Home Outfitters where she worked
approximately 35 hours per week. In April 2010, a few months before the motor
vehicle accident, Ms. McKay was employed at Budget Car and Truck Rental. Her
duties included customer service and washing and detailing cars at the
Abbotsford Airport.

[4]            
It was Ms. McKay’s evidence that prior to the motor vehicle accident,
she was able to perform at all of these jobs without limitation.

[5]            
In December 2007, when she was 15, Ms. McKay began to experience back problems.
At the time she was playing baseball at an elite level and coaching as part of the
baseball academy program at her school. She stated that she strained her back
while doing sit-ups. She received chiropractic care from Dr. Munro commencing
in January 2008. In addition, she was seeing her family physician, Dr. Moore.
She also attended a pain clinic at BC Children’s Hospital between September and
December 2009.

[6]            
It was Ms. McKay’s contention that this condition only involved her
lower back, and therefore was quite distinct from the injuries suffered in the
motor vehicle accident. However, a review of the clinical records of Dr. Munro
and Dr. Moore calls this contention into question.

[7]            
Dr. Moore’s clinical records include the following entries in relation
to this issue:

a.       ”…[G]oing to a chiropractor for low back pain
which has been getting better. Not doing any exercises for it. …Some pain going
down the back of her thigh. Is painful to extend and rotate her back to the
left and laterally flex to the left. There is tenderness over the sacroiliac
area.”

Dr.
Moore Clinical Record, February 29, 2008

b.       “Has pain in her low back radiating up to her
shoulders. It hurts for her to move.”

Dr.
Moore Clinical Record, March 7, 2008

c.       ”She complains of pain all over her back.”

Dr.
Moore Clinical Record, March 31, 2008

d.       “Says she is in agony. Has pain all over her
back.”

Dr.
Moore Clinical Record, April 23, 2008

e.       ”Has pain up and down her back into her legs
and arms, all over her back. She can’t do a thing because of it. Does have pain
in both legs and numbness.”

Dr.
Moore Clinical Record, June 30, 2008

[8]            
Dr. Munro’s expert opinion makes reference to the following past history:

Past History:  Ms. McKay has a
significant past history of spinal pain. She initially presented to my office
on January 2008 with sacroiliac pain, low back pain, mid dorsal pain and neck
pain. She was very active in baseball as a catcher which seemed to be the
source of many complaints, She experienced recurrent neck pain, low back and
mid.

[9]            
A report from the Outpatient Psychiatry Clinic dated November 27, 2009,
states that Ms. McKay is being followed by the Complex Pain Service team who
referred her to the Psychiatry Clinic for assessment of mood and anxiety. The
report states in part:

IMPRESSION:

Katie is a 17-year-old adolescent
who presents with a two-year history of pain, which appears to have started
from a relatively mild sports related injury two years ago, but worsened with
disuse and deconditioning. Her function was significantly affected by the pain.
She describes a history of a major depressive episode when she initially
developed the pain symptoms. She states that her mood has improved
significantly. She currently denies any symptoms of a depressive disorder and
is enjoying school and work.

[10]        
She was diagnosed as having major depressive disorder in remission, and complex
pain with significant stressors. Ms. McKay reported that she was still in pain
but was getting used to dealing with it. She stated that she still could not
play baseball or run. Her mood was improved.

[11]        
The clinical notes for Dr. Munro for April 2, 2010, report left hip
pain, full spine pain, low back pain, ongoing difficulty at work, and
difficulty with prolonged standing. Thus it is clear that in the months
preceding the motor vehicle accident, Ms. McKay was continuing to suffer pain
and restriction from the sports injury and that she was continuing to receive
treatment for that injury.

[12]        
I find that prior to the motor vehicle accident, Ms. McKay had suffered
a back injury or strain in 2007. As a consequence of this injury, Ms. McKay
experienced pain all along her back, radiating to her shoulders, and into her
legs and arms. In addition, Ms. McKay experienced and was treated for
depression and anxiety which were related to her injury. Her condition was
disabling in that she was not able to participate in activities that she had
formerly enjoyed. While her condition had improved and she had returned to some
activities, her pain persisted and could be characterized as chronic by the
time of the motor vehicle accident. She was still receiving treatment for her
condition immediately prior to the motor vehicle accident.

[13]        
The motor vehicle accident occurred on July 13, 2010. Ms. McKay was a
passenger in a 2003 Dodge Ram truck driven by her then boyfriend. She was
seated in the middle of the front bench seat and wearing a lap seat belt. The
truck was travelling southbound on Clearbrook Road in Abbotsford when a 1992
Mazda Protégé driven by the defendant, Sukhdarshan Raiwal, who was travelling
in the opposite direction, turned left in front of their vehicle to enter a gas
station. The front of the plaintiff’s vehicle collided with the front passenger
side of the defendant’s vehicle.

[14]        
Ms. McKay stated that she extended her arm forward to brace herself on
impact and that her knee struck under the dashboard.

[15]        
Ms. McKay attended a walk-in clinic the next day. She was shaken up,
sore, and stiff between her shoulder blades. She said that she could not take
deep breaths. She was prescribed Naproxen, an anti-inflammatory.

[16]        
Ms. McKay did not miss any work following the motor vehicle accident.
However, she found that she was not able to keep up with the work and was transferred
to a slower location.

[17]        
She attended Dr. Munro on July 15, 2010. His clinical records report that
she complained of mid-dorsal pain, neck pain, right shoulder blade pain, low
back pain, and headaches.

[18]        
She attended her family physician, Dr. Moore on July 26, 2010. His
clinical records report that she had pain in the R12 area radiating up between
her shoulder blade and that if she sits for any length of time, her left leg
goes a little numb. On examination she had normal range of motion, no spasm,
tenderness, or neuropathy.

[19]        
Ms. McKay visited Dr. Moore again in relation to her injuries on October
8, 2010. His notes indicate that she reported that she was still in a lot of
pain. On examination she had a normal range of motion but pain on extension of
her back. She did not have tenderness, spasm, or neuropathy, and no pain in her
legs. She was experiencing grief at the loss of her grandparents and receiving
counselling. Dr. Moore prescribed an anti-depressant.

[20]        
In the clinical records for the visit on January 21, 2011, Dr. Moore
notes that she reported that she has low back pain, neck pain, and pain in her
upper shoulder blade area. Her range of motion was normal, there was no
neuropathy, and her shoulders were fine. There was some palpatory tenderness. Ms.
Mackay returned to Dr. Moore on January 31, 2011. His clinical notes report that
the anti-depressants seemed to be helping. He encouraged Ms. McKay to do
conditioning for her back and to attend to be reassessed in several weeks.

[21]        
Ms. McKay stopped seeing Dr. Moore in April 2011. It was her evidence
that she felt that he was not helping her to get better.

[22]        
Ms. McKay received a series of treatments from Dr. Munro until May 2011.
He records that Ms. McKay responded well to treatment. She reported a reduction
in her headaches, reduced spasm, and improved range of motion. Her pain was
reduced.

[23]        
Ms. McKay changed family doctors and chiropractors in 2011. She started
to see Dr. John Chan in April 2011. Her main complaint at the first visit was
left-side chest pain. She returned in July 2011 complaining of tenderness along
her sternum, left-side chest wall, and mid-back from T3 to T8. In visits in
August and October 2011, Ms. McKay complained of pain in her mid and lower back
and chest wall.

[24]        
Ms. McKay went to massage therapy once or twice at Dr. Chan’s
suggestion, but stopped because she found it too painful. She stated that she
attended physiotherapy in 2011 for two sessions but did not find that helpful.
Dr. Chan stated that he was encouraging Ms. McKay to lose weight and to be more
active. She agreed that Dr. Chan encouraged her to lose weight but stated that
she was not able to do so because she could not afford proper nutrition.

[25]        
In March 2011, Ms. McKay left her employment to start work in a group
home as a behaviour interventionist. The decision to change jobs and not to
attend university related to the opportunity of the new positon and did not
have anything to do with her injuries.

[26]        
She stated that she found some of the physical aspects of the job
problematic due to her injuries. She stated that she missed some work due to
appointments, but has no records documenting dates or lost wages. She remained
in this position until February 2012.

[27]        
Ms. McKay was in another motor vehicle accident in August 2011. She did
not stop in time and hit the rear of the vehicle in front of her at a speed of
approximately 30 kilometres per hour. She stated that she was not injured in
this accident.

[28]        
Ms. McKay stated that she got a gym pass in 2011, but found that the gym
caused her more pain. She said that she could not really do much.

[29]        
In February 2012, Ms. McKay started work as a life insurance agent. She
stated that she experienced no limitations at this job, except that long
periods of driving were problematic for her. She remained in this position
until August 2012.

[30]        
In February 2012, Dr. Chan referred Ms. McKay to Sport and Spine
Physiotherapy Clinic for her continuing complaints of back and chest wall pain.
At that time she had normal range of motion with tender paraspinal muscles
along her mid-back. At a visit on February 21, 2012, Dr. Chan administered
standardized tests for anxiety and depression and concluded that Ms. McKay was
moderately depressed and anxious. He prescribed Zoloft.

[31]        
Dr. Chan examined Ms. McKay again in June 2012. He notes that she
reported left wall and mid-back tenderness. At this time he referred her to Dr.
Grover, an orthopedic surgeon because of the duration of her pain.

[32]        
Dr. Grover saw Ms. McKay in September 2012. His impression was that:

Mrs. McKay has very likely
suffered musculoligamentous injuries to her back following the motor vehicle
accident. It also very likely reinjured her back because she has a previous
injury to her lower back. Regardless, she does not need any surgical
interventions. There is no role at this point for any MRI scans etc. She needs
to lose a tremendous amount of weight, start going to the gym, working out and
she needs some supervised physiotherapy which would likely help her to a
significant degree.

[33]        
Ms. McKay attended physiotherapy between October 2012 and July 2013. She
stated that she sometimes found this helpful. It was her evidence that the
physiotherapists did not give her any exercises to do at home.

[34]        
In October 2012, Ms. McKay started a new position as executive
assistant, receptionist, and residential care worker at Sources Community
Resource Society. The position involved office work during the week and working
with clients on the weekends. She stated that sitting for long periods was
problematic for her and she had difficulty lifting heavy boxes.

[35]        
In February 2013, Ms. McKay was in another motor vehicle accident. She
drove into the rear of the vehicle in front of her. She was travelling at about
40 kilometres per hour when she hit the brakes, which did not stop her vehicle.
She stated that she was not injured in this accident.

[36]        
Ms. McKay did not attend Dr. Chan again until May 2013. On this visit
she reported back pain. Dr. Chan referred her to Dr. Dhawan, a physiatrist.
This was her last visit with Dr. Chan. It was Ms. McKay’s evidence that Dr.
Chan was too difficult to get in to see. In addition, she did not believe that
he was helpful to her.

[37]        
In July 2013, Ms. McKay started with a new chiropractor, Dr. Simpson
Leung. She attended twice a week, later increasing to three to four times per
week for treatment. Dr. Leung administered both manipulation and laser therapy.
She stated that Dr. Leung gave her exercises to do at home but these seemed to
be more in the nature of mild stretches.

[38]        
Ms. McKay transferred to a new family physician, Dr. Amankwe in August
2013.

[39]        
In August 2013, Ms. McKay went off work until December 2013. She stated
that this was to accommodate seeing Dr. Leung three times a week and to promote
healing. She applied but was not approved for short-term disability. It was her
evidence that when she told Dr. Amankwe about this plan he approved; however
there is no evidence from the doctor including clinical records.

[40]        
Ms. McKay stated that before August she had missed occasional days, more
so in July. However, there is no documentation of missed days or missed wages.

[41]        
Ms. McKay resigned her positon with Sources Community Resource Society
in December 2013 and took a positon as a client service representative with
Abbotsford Chrysler. She remained in that positon until March 2014. She stated that
she found sitting for extended periods problematic.

[42]        
Ms. McKay commenced work at the Fraser Valley Child Development Centre
in April 2014. This positon involved work with children with autism. Ms. McKay
reported that she experienced some difficulties at this job; for example, she
could not sit on the floor with the children.

[43]        
In May 2014, Dr. Dhawan reported that Ms. McKay had settled into chronic
pain with soft tissue injuries to the cervical, thoracic, and lumbar spine with
myofascial pain affecting her neck, upper, and lower back. He outlined a
treatment plan which included steroid injections to the facet joints, weight
reduction, a nutrition program, and rehabilitation with a personal trainer. He
prescribed Cymbalta for mood and pain control.

[44]        
Ms. McKay stated that she had one injection which she found very painful
and not helpful. She did not return to Dr. Dhawan.

[45]        
Ms. McKay is now back with Dr. Moore since learning that she is
pregnant. She stated that at Dr. Moore’s recommendation she went off work on
October 24, 2014 at 16 weeks. However, there is no evidence from Dr. Moore,
including recent clinical records, to cast light on the medical reason for
this. Ms. McKay stated that her pain has become much worse since she has become
pregnant and that now she has excruciating pain every time she bends down.

[46]        
Ms. McKay stated that since the accident she has experienced headaches,
neck pain, double vision, dizziness, pain in her shoulders and between her
shoulder blades, pain in her mid-back piercing into her chest and radiating
down her arms with numbness in her hands, and pain in her pelvis, radiating
down her legs. She suffers from shortness of breath. Since the motor vehicle
accident, Ms. McKay has gained 60 pounds. She now weighs 220 pounds compared to
approximately 160 pounds at the time of the accident.

[47]        
She stated that, while the pain varies somewhat over time, she
experiences pain and headaches every day. As a result she has difficulties
bending, walking, and climbing stairs. Her ability to run or play sports has
been impaired. She has limitations with housework, laundry, and walking. She
cannot run. Laying down helps her pain.

[48]        
Ms. McKay testified that since the motor vehicle accident she has had
difficulty with housework. She said that she cannot move her arms back and forth
and cannot bend so that activities such as folding clothes, vacuuming,
sweeping, mopping, and cleaning the bathtub are all problematic. She can do
limited amounts of dusting and finds cooking a full meal problematic.

Lay Witnesses

Jeremy Kasdorf

[49]        
Mr. Kasdorf is Ms. McKay’s partner. They met in January 2014 and began
dating. They moved in together in July 2014. He stated that he observed Ms.
McKay had difficulty sitting; for example, she would become uncomfortable part
way through a movie. She is often very tired after work and appears to be in
pain. He does most of the household chores.

[50]        
He said that Ms. McKay’s symptoms have gotten worse during her
pregnancy. She complains of more back pain and more fatigue.

Kathryn McKay

[51]        
Kathryn McKay is Ms. McKay’s mother. She stated that Ms. McKay had
substantially recovered from the sports injury when she was injured in the
motor vehicle accident. It was her opinion that the problems Ms. McKay
encountered following the motor vehicle accident were more significant than
those arising from the sports injury.

[52]        
She stated that after the accident, Ms. McKay could not help with the
housework. She could not vacuum, lean over the sink, or help with laundry. She
became moody, angry, and despondent. Eventually in 2011, Ms. McKay’s mother
asked her to move out of the house. At the time Ms. McKay was angry with her
mother all the time. After she moved out, her mother would go over to her new
home to clean the house for her.

[53]        
It was her evidence that Ms. McKay’s condition has improved and that the
treatments with Dr. Leung have been beneficial.

Medical Evidence

Dr. Munro

[54]        
As noted earlier, Dr. Munro had treated Ms. McKay in relation to her
sports injury and was still treating her for injury at the time of the motor
vehicle accident. He treated her for the injuries suffered in the motor vehicle
accident until April 2011. It was his impression that Ms. McKay suffered mild
trauma to her cervical spine with recurrent mechanical dysfunction within the upper
segments. He noted complaints of recurrent headaches and neck discomfort, no
sensory loss or evidence of neurological deficit. She also suffered low back
pain of a mechanical nature with full but painful lumbar range of motion and
some point tenderness. He felt that she had sustained injury to her mid-dorsal
spine that was healing with complications.

[55]        
It was his impression that Ms. McKay’s perception of pain was at times
excessive to her disability and dysfunction.

Dr. Chan

[56]        
As noted above, Dr. Chan was Ms. McKay’s family physician from April
2011 to May 2013. Dr. Chan stated that Ms. McKay had sustained injury to her
left chest wall, neck, upper, mid, and lower back in the motor vehicle
accident. Her pain was mostly myofascial in nature. He outlined the treatment
program provided by Dr. Dhawan and stated that he was unable to give a
prognosis because he did not know her current status.

Dr. Leung

[57]        
Dr. Leung has been treating Ms. McKay since July 2013. It was his
opinion that as a result of the motor vehicle accident she suffered a grade II whiplash
injury to her neck; vertebral subluxation complexes of cervical, thoracic, and
lumbosacral spine; myofascial pain syndrome; musculoligamentous lumbosacral
sprain and strain; and cervicogenic headaches. He noted that her condition had
improved over the course of treatment as measured by his examinations, together
with her self-reports. However, he did not expect further improvement.

[58]        
Dr. Leung recommended an independent exercise program guided by either a
personal trainer or a physiotherapist to strengthen the shoulder girdle,
trapezius and neck musculature, and lower back. He recommended that she
continue with chiropractic treatments in conjunction with the exercise program.
Finally, he felt that assessment and possible treatment by a qualified psychological
professional would be appropriate.

Injuries Suffered

[59]        
Ms. McKay suffered soft tissue injuries to her neck, chest wall, and
back in the motor vehicle accident. As a result, she has suffered pain and
headaches. Assessing damages in this case is complicated by several factors.
First, at the time of the motor vehicle accident, Ms. McKay was still suffering
from pain and restriction arising from the sports injury in 2007. The treatment
for this injury had entailed a referral to a pain clinic at Children’s
Hospital, and to a psychiatric clinic for treatment of anxiety and depression.
Ms. McKay’s condition had improved by the time of the motor vehicle accident
but she was still symptomatic and still receiving treatment.

[60]        
The significance of the pre-existing condition is that the defendant
need not put the plaintiff in a better position than her original position and
is not required to compensate the plaintiff for injuries she would have
suffered in any event: Athey v. Leonati, [1996] 3 S.C.R. 458.

[61]        
In order to assess the injuries suffered in the motor vehicle accident,
it is therefore important to assess the plaintiff’s condition immediately
before the accident. Her present condition is to be assessed in relation to
what her condition would have been had the accident not occurred. In this case,
that would include the pain and restrictions associated with the continuing
effects of the sports injury.

[62]        
Assessing those matters is complicated by the fact that there has been
no continuity in Ms. McKay’s medical care. No doctor or chiropractor has
treated Ms. McKay from the time of the sports injury to the present, thus none
can comment from their professional experience on her condition before and
after the sports injury. Indeed, there has not been continuity of care since
the motor vehicle accident, thus none of the experts can comment on her
progress from the time of the accident to the present. Dr. Moore has perhaps
the most complete picture, since he treated Ms. McKay for the sports injury as
well as for the motor vehicle accident injuries until 2011 and is now treating
Ms. McKay once again. However, Dr. Moore did not give evidence and so the court
does not have the benefit of his perspective.

[63]        
Ms. McKay and her mother have testified about her condition in the aftermath
of the sports injury and from the time of the motor vehicle accident to the
present. However, I have significant concerns about the reliability of their
testimony in this regard. Both Ms. McKay and her mother stated that the
injuries suffered in the motor vehicle accident were different in kind from the
sports injury; however this is not reflected in the clinical records of Dr.
Munro and Dr. Moore. Their clinical records describe a pattern of symptoms very
similar to the pattern of complaints following the motor vehicle accident. In
addition, the clinical records suggest that Ms. McKay was still suffering from
more pain and restriction in the period prior to the motor vehicle accident
than the state of recovery described in their testimony. Finally, their
description of Ms. McKay’s state and the progress of her recovery since the
motor vehicle accident appears to be more negative and pessimistic than what is
reflected in the clinical records. For example, in the clinical records of Dr.
Leung, Ms. McKay reports significant improvement which, in my view, was not
reflected in her testimony.

[64]        
The court did not have the benefit of the testimony of Dr. Dhawan, the
physiatrist who treated Ms. McKay, although there is reference to his treatment
plan for her in Dr. Chan’s report. It appears that Dr. Dhawan, in common with
other professionals who treated Ms. McKay, recommended that she lose weight and
undertake a program of active rehabilitation. Ms. McKay has not followed these
recommendations.

[65]        
Ms. McKay, to her credit, has continued to work since the motor vehicle
accident. She has testified about limitations she suffered in her various jobs
and about continuing restrictions. However, there is no functional capacity
report or, as noted above, no evidence from Dr. Dhawan. Ms. McKay is advancing
a claim for future loss of capacity. I agree with the submission of her counsel
that a functional capacity assessment is not a requirement in every case where
such a claim is advanced, but the absence of such an assessment looms large in
the circumstances of the present case.

[66]        
I find that Ms. McKay suffered myofascial tissue injuries to her neck,
shoulders, back, and chest wall in the motor vehicle accident that exacerbated
her symptoms arising from the sports injury that she suffered in 2007. She has
continued to suffer pain and headaches as well as fatigue as a result of these
injuries. Ms. McKay was treated for depression and anxiety as a result of the
sports injury. In the aftermath of the motor vehicle accident she has required
treatment for depression from time to time. I find that the motor vehicle
accident was a causal factor in the recurrence of Ms. McKay’s depression.

[67]        
As noted earlier, I have concluded that Ms. McKay was continuing to
suffer from pain and restriction from the sports injury prior to the motor
vehicle accident and that her condition prior to the accident fit the
definition of chronic pain. Ms. McKay continues to suffer from pain and her
condition continues to fit the definition of chronic pain. I have concluded
that as a result of the motor vehicle accident, Ms. McKay suffers from chronic
pain that is somewhat, but not significantly more severe than the chronic pain
she suffered prior to the motor vehicle accident.

Non-Pecuniary Loss

[68]        
The plaintiff cited the following cases in support of the submission
that the appropriate range of damages for non-pecuniary loss in the present
case is $50,000 to $60,000: Dobbin v. Siewert, 2013 BCSC 1153; Iliopoulous
v. Abbinante, 2008 BCSC 336; and Stone v. Kirkwood, 2008 BCSC 1295.

[69]        
The position of the defendant is that the appropriate range of damages
for non-pecuniary loss is $18,000 to $25,000, citing Sidor v. Coulter, 2013
BCPC 11; Densem v. Sidal, 2012 BCSC 1008; Sourisseau v. Peters, 2012
BCSC 1163; and McCulloch v. Isaac, 2013 BCSC 1319.

[70]        
In my view, the position advanced by the plaintiff does not give
sufficient recognition to Ms. McKay’s condition prior to the motor vehicle
accident. The position advanced by the defendant does not account for the
significant exacerbation caused by the motor vehicle accident. In the
circumstances, I have concluded that the appropriate award for non-pecuniary
loss is $30,000.

Past Wage Loss

[71]        
Ms. McKay seeks an award of $10,000 to $15,000 for past loss of wages.
Counsel submits that Ms. McKay missed opportunities to earn income on two
occasions. The first was when she left the Sources Community Resources Centre
for four months from mid-August to mid-December 2013 to recuperate and take
additional chiropractic treatments. She earned $3,500 per month in that
position. In addition, Ms. McKay stopped work at her child development position
at about 16 weeks into her pregnancy. Counsel submits that were it not for her
injuries suffered in the motor vehicle accident, she would have worked an additional
ten weeks.

[72]        
The position of the defendant is that there is no evidence from Ms.
McKay’s physicians who were treating her at the relevant times that it was
medically necessary or reasonable for her to take time off work. Counsel
acknowledges that she might have needed some time off to accommodate medical
appointments, but notes that there is no evidence of what that was.

[73]        
I have concluded that Ms. McKay has not discharged her burden of proof
with respect to past wage loss. I accept that she left her employment from mid-August
to mid-December 2013. However, given the length of time that had elapsed from
the motor vehicle accident, the fact that she had been at work throughout that
period, the absence of evidence of any event that would have triggered a relapse,
and the absence of medical evidence recommending Ms. McKay to take time off
work, I find that a causal relation between the motor vehicle accident and the
absence from work has not been established. With respect to Ms. McKay’s
pregnancy, I make the same finding. There is no medical evidence in support of
the contention that Ms. McKay’s pregnancy has aggravated her injuries making
her unable to work.

[74]        
With respect to work missed because of medical appointments, again the
evidence is not sufficient to support an award. Ms. McKay stated that over the
years she has missed some work due to medical appointments, but she has
provided no more detail than that and there is no documentary evidence to
support or quantify this somewhat vague contention.

Loss of Earning Capacity

[75]        
The plaintiff seeks an award of $25,000 for loss of earning capacity.
Counsel submits that she has experienced difficulties in the workplace ever
since the motor vehicle accident. At Budget Car Rentals in the immediate
aftermath of the accident, she had to be moved to an office that was not as
busy where she did not have to clean as many cars. She had difficulties with
the physical aspects of caring for an autistic child when she was employed as a
behavioural interventionist. She had difficulties driving long distances as an
insurance agent. Sedentary positions such as Sources Community Resource Society
and Chrysler Abbotsford were very difficult. She finds her present position
very taxing and frequently has to sleep a full cycle after work each day.
Moreover, she needs to find ways to accommodate her injuries.

[76]        
The position of the defendant is that Ms. McKay has not established that
the accident has resulted in a diminished capacity for earning income in the
future. Counsel submits that the plaintiff has not demonstrated a “real and
substantial possibility” that any diminishment in earning capacity will result
in a pecuniary loss.

[77]        
In Perren v. Lalari, 2010 BCCA 140, Madam Justice Garson stated
the test for proving future income loss at para. 32 as follows:

A plaintiff must always prove, as was noted by Donald
J.A. in Steward, [2007 BCCA 150], by Bauman J. in Chang, [2008 BCSC
49], and by Tysoe J.A. in Romanchych, [2010 BCCA 20], that there is a
real and substantial possibility of a future event leading to an income loss.
If the plaintiff discharges that burden of proof, then depending upon the facts
of the case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, [(1990), 46
B.C.L.R. (2d) 133 (C.A.)], or a capital asset approach, as in Brown, [(1985),
26 B.C.L.R. (3d) 353 (S.C.)].

[Emphasis in original.]

[78]        
In the present case, I have concluded that Ms. McKay did not establish
that she lost time from work as a result of the accident. Moreover, while she
suffered injury, I find that she has not established that the injuries suffered
in the motor vehicle accident disabled her from performing her functions at
work.

[79]        
I find that there is no ongoing disability caused by the motor vehicle
accident that would impair Ms. McKay’s ability to earn income. Ms. McKay does
continue to suffer from pain. However, as Madam Justice MacKenzie noted in Moore
v. Cabral, 2006 BCSC 920 at para. 78, “Ongoing symptoms alone do not
mandate an award for loss of earning capacity.”

Cost of Future Care

[80]        
Ms. McKay sought an award of $5,000 for costs of future care based upon
the recommendations of Dr. Leung for ongoing chiropractic treatment, an
exercise program, and psychological counselling. The position of the defendant
is that a modest award to support future chiropractic treatment and an exercise
program would be appropriate in the circumstances.

[81]        
I award $5,000 for the cost of future care based upon the recommendations
of Dr. Leung.

Special Damages

[82]        
Ms. McKay sought to recover the following expenses as special damages:

[83]        
Ms. McKay has deducted $800 from the amount claimed regarding Dr.
Leung’s account for missed appointments in April 2014, which counsel concedes
are not an appropriate claim.

[84]        
In addition, counsel seeks an increase of 6% representing interest since
the treatments were financed through loans arranged through her counsel, citing
Phippen v. Hampton, 2014 BCSC 687 [Phippen].

[85]        
The position of the defendant is that Ms. McKay is entitled to be
restored to the position she would have been in had the accident not occurred. See
X. v. Y., 2011 BCSC 944. Because Ms. McKay was continuing to seek
treatment for her sports injury and would have continued to have chiropractic
treatment as “routine maintenance” even if the accident had not occurred, some
reduction should be made to the amount claimed for Dr. Leung, in addition to
the deduction for missed appointments.

[86]        
I am not prepared to make any award with respect to interest in relation
to special damages. With respect to the plaintiff’s submission in this regard,
I note that the decision relied upon by counsel is in relation to interest
charged on disbursements. In MacKenzie v. Rogalasky, 2014 BCCA 446, the
court overturned the decisions relied upon in Phippen and held that
interest expenses incurred to finance disbursements were not recoverable as
disbursements in this Province. In the course of that decision, Mr. Justice
Harris, for the court, discussed interest in relation to special damages as
follows at paras. 69-73:

[69]      Legislative reform through the enactment of the Pre‑judgment
Interest Act in the 1970s, overcame the general prohibition on awarding pre‑judgment
interest. At the time, the law on pre-judgment interest was “confused and
uncertain”: see British Columbia, Law Reform Commission, Report on
Debtor-Creditor Relationships (Project No. 2) Part IV – Pre‑judgment
Interest, LRC 12, (Vancouver, 1973) at 9‑10 (“LRC Report”).
In its 1973 report, the British Columbia Law Reform Commission observed several
critical areas where pre‑judgment interest was unavailable, including for
“unliquidated claims for damages for breach of contract”, and “where the claim
is founded on tort”: LRC Report at 10. As noted above, s. 1 of
what is now the COIA requires courts to award pre‑judgment interest
to a pecuniary judgment from the date on which the cause of action arose until
the date of the order. The reform also provided that pre‑judgment
interest be added on special damages which became recoverable in six-month
intervals. Special damages essentially are the principal amount of moneys paid
out arising from a wrong. Pre‑judgment interest is added to them, but not
to the cost (i.e., out-of-pocket interest expenses) of borrowing money to
finance them.

[70]      There are, in my opinion, some conclusions to be
taken from the history of legislative change respecting the recovery of
disbursements and pre‑judgment history. First, at the time when costs
(including expenses/disbursements) became recoverable by legislative
intervention, pre‑judgment interest was, generally, not recoverable
either on costs or on special damages. From this I infer that the legislature
did not intend to allow the recovery of out-of-pocket interest expenses as a
disbursement, when they were not generally recoverable otherwise either at
common law or by statute.

[71]      Second, nothing in the changes to the language of
the rule governing the recovery of disbursements supports an argument that, at
some point, interest expenses had become recoverable as a result of an
amendment to the rule.

[72]      Third, the enactment of the Pre‑judgment
Interest Act (now the COIA) does not support an argument that
out-of-pocket interest expenses became recoverable as disbursements. To
the contrary, the extent of the reform was to add pre‑judgment interest
to special damages at the rates provided under the legislation, not to treat
out-of-pocket interest expenses as special damages. The legislature did not
extend the right to recover pre‑judgment interest to disbursements even
though it must have known that disbursements are incurred before judgment. The
legislation specifically prohibits awarding interest on costs, which include
disbursements. In my view, this is confirmation of the proposition that the
legislature has determined that in respect of costs/disbursements there is no
pre‑judgment loss in respect of which it is appropriate to compensate for
the time value of money expended. Furthermore, the legislature has not acted on
the recommendation of the Law Reform Commission to amend s. 2(c) to permit
pre‑judgment interest to be added on disbursements: see Report on the
Court Order Interest Act, Law Reform Commission of British Columbia,
LRC 90 (1987), at 67‑9.

[73]      Accordingly, if
out-of-pocket interest expenses were recoverable as disbursements, the legislature
would have created an anomaly. Concretely, interest incurred to finance an
expert report to prove a case would be recoverable as a disbursement, but
interest incurred to finance payment for services necessitated by the wrong
would not be. The plaintiff would be restricted to pre‑judgment interest
under the COIA on the principal cost of those services. And this under a
legislative scheme where pre‑judgment interest is not added onto the cost
of disbursements. I cannot conclude that the legislature has intended to
create such an anomaly and conclude that the Rule 14-1(5) cannot be
interpreted as the respondents contend.

[87]        
With respect to the expenses claimed, while I agree that Ms. McKay would
have taken some chiropractic treatments as “regular maintenance” and as ongoing
treatment for her sports injury even if the motor vehicle accident had not
occurred, I do not agree that it is appropriate to make a deduction from the
amount claimed on that basis. That is because the evidence is clear that Ms.
McKay did take these treatments because of the injuries she suffered in the
motor vehicle accident.

[88]        
I award $15,810 as special damages.

Housekeeping Capacity

[89]        
Ms. McKay sought an award of $10,000 to compensate her for her
diminished capacity to do regular housekeeping tasks. The position of the
defendant is that the quality of the evidence in regard to this claim is poor,
but the defendant does not oppose a nominal award.

[90]        
I agree with the submission of the defendant that the evidence in
relation to this head of damages is somewhat vague. However, it does appear
that Ms. McKay has some continuing impairment in relation to household tasks
and that her partner has taken over many of the housekeeping duties. I award
$5,000 for this head of damages.

Summary

[91]        
In the result I award damages as follows:

[92]        
I decline to award damages for past loss of income and future loss of
earning capacity for the reasons noted above.

[93]        
If the parties are unable to agree on costs, they may, within 21 days of
these reasons, and before entry of the order reflecting these reasons, arrange
to speak to the issue at their and the court’s earliest convenience. Otherwise,
the order will provide for Ms. McKay to have her costs at Scale B.

“Ross J.”