IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150410

Docket: M130525

Registry:
Vancouver

Between:

Roberto Matias and
Jasmin Matias

Plaintiffs

And

Edward Yi Hua Lou

Defendant

Before:
The Honourable Mr. Justice Steeves

Reasons for Judgment

A. INTRODUCTION

[1]            
The plaintiff, Jasmin Matias, seeks damages for a motor vehicle accident
that occurred on February 23, 2011. She and her husband, the plaintiff
Roberto Matias, were in the front seats of their vehicle when they were
rear-ended by another vehicle driven by the defendant. Liability is admitted.

[2]            
The parties have settled the claim of the plaintiff Roberto Matias.
I will use “plaintiff” to refer to Ms. Matias.

[3]            
The plaintiff currently suffers from bilateral frozen shoulders and soft-tissue
injuries to her shoulder, back and other parts of her body. She claims damages
for past wage loss, non-pecuniary pain and suffering, future home care and
future loss of earnings. Special damages are agreed.

B. BACKGROUND

[4]            
The plaintiff was 57 years old at trial. She is married to Roberto
Matias and they have three adult children. Her previous medical history includes
a left ankle sprain in 2009 and anxiety and depression over a workplace issue
in 1999.

[5]            
The plaintiff came to Canada in 1995 from the Philippines where she took
some courses and/or worked in business (including a diploma in business
administration), accounting, marketing and gemology. She ran businesses in the
Philippines designing and selling jewellery and selling/renting video games.

[6]            
After arriving in Canada, the plaintiff took continuing education
courses in accounting, import/export and other areas. She also worked in retail
sales and insurance. In 2004, she started a business called Jasmin’s Creations selling
her own jewellery, other peoples’ jewellery and scarves. She also worked as an
Avon sales representative for two months in 2010.

[7]            
The plaintiff’s work was generally part-time. She displayed her
jewellery and scarves at churches and craft fairs with some increase in hours and
income during, for example, Christmas. Her gross and net business income from
2006 to 2013 was as follows:

C. THE
ACCIDENT

[8]            
The accident occurred on February 23, 2011 when the vehicle in
which the plaintiff and her husband was travelling was rear-ended by the
defendant’s vehicle. She was wearing her seat belt. The husband, who was
driving, was also injured in the accident and his claim has been settled.

[9]            
The plaintiff testified that upon impact her whole body moved forward
and then backwards, with her buttocks coming off the seat, as if the vehicle
was rising and falling. She was able to get out of the vehicle and called 911,
took photos of the vehicles and dealt with the police and the defendant. She
then drove her husband home in their vehicle.

[10]        
When she returned home the plaintiff felt dizzy and had trouble
concentrating. She also began to feel pain in her left shoulder area and her
neck. She had difficulty sleeping that night. The next morning she woke up and
tried to pick up one of her small dogs and she felt pain in her upper and lower
back. She also experienced pain in her left shoulder and her neck.

[11]        
The plaintiff saw her family physician, Dr. Peter Yong. His chart
note is dated February 23, 2011 (as recorded in his report of August 19,
2014). The plaintiff thought she might have gone to a walk-in clinic that day
instead of seeing Dr. Yong; there is a record from a walk-in clinic dated February 25,
2011.

[12]        
In any event, Dr. Yong’s chart note is, in part, as follows:

…After the impact, she was
complaining of numbness on the left side of the body. On examination on February 23,
2011, there was tenderness of the cervical area. Rotation of the neck was 40°
to the right and left and flexion was 40°. There was tenderness of the left
shoulder-blade with stiffness. There was tenderness of the thoracolumbar area. Flexion
of the back was 7° and straight leg raising test was 80° on both sides. There was
also tenderness of the left shoulder. Abduction of the left shoulder was 120°. The
diagnosis was that of soft tissue injuries involving the neck, left shoulder
blade, and thoracolumbar area. She was advised to go for a course of
physiotherapy. She was given an anti-inflammatory medication called naproxen
250 mg one twice a day for pain and inflammation. At the time of the accident,
she was self-employed as a jewelry designer. Because of the accident, she was
advised to be off work.

[13]        
Since the 2011 accident, the plaintiff has received medical and
rehabilitation treatment (physiotherapy, chiropractic, massage) for her neck,
both shoulders and lower back. She also has the benefit of two hours per week
of home support for homemaking and house cleaning. Her injuries have caused
tensions in her marriage as she and her husband have adapted to her
limitations.

[14]        
After the accident, the plaintiff stopped making and selling jewellery
until the summer of 2011. At that time her husband provided increased
assistance for transportation and setting up. She stopped work again in January 2014
and has not worked since then.

D. EXPERT REPORTS

[15]        
The plaintiff submitted five expert reports from:

(a)  Dr. Peter Yong: He
is the family physician for the plaintiff. His report of August 19, 2014
records his chart notes for a number of visits by the plaintiff from February 23,
2011 to July 11, 2014. Dr. Yong opined that the plaintiff “suffered
from multiple problems as a result of the accident” and is unfit for work at
this time, the prognosis is guarded and she will continue to suffer physical
and psychological problems. He was cross-examined.

(b)  Dr. Joy Wee: Dr. Wee
is a specialist in physical medicine and rehabilitation and she treated the
plaintiff beginning on November 20, 2013. In her report of August 4,
2014 she described the course of treatment and provided opinions on causation. She
opines that it is possible that all of the plaintiff’s injuries (frozen
shoulders, low back, neck, vision, tinnitus) are related to the 2011 accident. She
was cross-examined.

(c)  Dr. Fred Shane: Dr. Shane
is a psychiatrist and his report is dated September 6, 2014. He opines
that the plaintiff suffers from a driving phobia and somatic symptom disorder.
He was not cross-examined.

(d)  Karen Winkler: Ms. Winkler
is an occupational therapist and her report is dated October 22, 2014,
based on a functional capacity evaluation on September 10, 2014. She
opines that, as a result of her injuries (including the frozen shoulders), the
plaintiff has reduced test results in a number of areas when compared with
averages and accepted standards. Ms. Winkler also provided a second report
dated January 28, 2015 in response to a report from an occupational
therapist retained by the defendant, Ana Flores. Ms. Winkler was
cross-examined.

(e)  Derek Nordin: Mr. Nordin
is a vocational rehabilitation consultant and his report is dated October 31,
2014. In the opinion of Mr. Nordin, the plaintiff is competitively
unemployable as a result of her injuries, including the frozen shoulders.
Further given her age and test battery results, he could not make any
retraining recommendations. Mr. Nordin was cross-examined.

[16]        
The defendant relies on the opinions of the following three experts:

(a)  Dr. Paul Winston: Dr. Winston
is a physiatrist and his report is dated September 17, 2014. Dr. Winston
provided extensive information about frozen shoulders. He accepts that the
plaintiff has the condition and that it is painful and disabling. However, he
opined that it was not related to the 2011 accident and, in any event, it
should resolve by summer 2015. He was cross-examined.

(b)  Dr. Christopher
Robertson: Dr. Robertson is a psychiatrist and his report is dated October 27,
2014 (based on an assessment on September 11, 2014). He said in his report
that he did not have enough information to make a diagnosis of somatic symptom
disorder. With respect to any driving phobia, he said the plaintiff met the
criteria for this for about a two year period but she has been improving. He
was cross-examined.

(c)  Ana Flores: Ms. Flores
is an occupational therapist and her report is dated December 9, 2014. She
prepared her report on the basis of reviewing the written information about the
plaintiff and she did not interview the plaintiff. She agreed with Ms. Winkler
on a number of areas. She recommends a pain management program for the
plaintiff. She was cross-examined.

E. CAUSATION

[17]        
As above, the defendant admits liability. There is, however, an issue of
causation with respect to whether all of the plaintiff’s current medical issues
are related to the 2011 accident. In her evidence the plaintiff presents with a
number of injuries.

[18]        
As noted above, Dr. Wee is the plaintiff’s treating physiatrist and
she began to treat the plaintiff in November 2013. In her report, Dr. Wee
identified the following issues “suffered in the accident”:

…tenderness at various regions
of the neck, with left neck pain extending to head at the back, sides and
forehead, causing tearing and pain of the left eye; blurry and double vision;
ringing in her ear; tenderness of shoulder and upper back; inflammation and
tears at shoulder tendons and reduced range of motion in shoulders; left rib
pain; left hip pain and bruising at the left groin/hip; left ankle and Achilles
tendon pain; left sciatica with numbness; tinnitus; insomnia and exhaustion;
tenderness was present at her left lumbar region and buttock; palpitations,
increased anxiety and post traumatic stress; worsened dizziness

[19]        
Dr. Wee also diagnosed bilateral frozen shoulders in February 2014.
According to Dr. Wee’s testimony, it is “possible” that all of these
problems are related to the accident.

[20]        
In his report of September 17, 2014, based on an assessment the
same day, Dr. Winston, a physiatrist retained by the defendant, recorded a
similar but shorter list of complaints from the plaintiff:

1.         Pain in shoulders due to frozen shoulders.

2.         Low back pain with pain radiating down into the
left leg.

3.         Left collarbone pain.

4.         Sore left ankle on the medial aspect.

5.         Sore neck on the left side.

6.         Difficulty with sleep due to pain.

7.         Low energy and
inability to complete tasks at home.

[21]        
A useful discussion of the general approach to causation is set out in a
previous judgment by Madam Justice Donegan (Johal v. Conron, 2013 BCSC
1924):

[68] The plaintiff must establish, on a balance of
probabilities, that the defendant’s negligence caused or materially contributed
to her injuries. The defendant’s negligence need not be the sole cause of the
injuries so long as it is part of the cause beyond the de minimis range.
Causation need not be determined by scientific precision: Athey v. Leonati,
[1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at
para. 9.

[69] The primary test for causation is the well-known “but
for” test. The question is: but for the defendant’s negligence, would the
plaintiff have suffered the injury? This test recognizes that compensation for
negligent conduct should only be made where a substantial connection between
the injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke,
2007 SCC 7 at paras. 21-23.

[70] In special circumstances, the “but for” test proves
unworkable. A “material contribution” test can be used to resolve this question:
Clements v. Clements, 2012 SCC 32.

[71] Causation must be established on a balance of
probabilities before damages are assessed: Blackwater v. Plint, 2005 SCC
58 at para. 78:

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

[22]        
The defendant accepts that the 2011 accident caused some soft tissue
injuries to the plaintiff. Specifically, it is accepted that pain, stiffness
and limitations in the neck and shoulders following the accident are related to
the accident. However, the defendant does not accept that the plaintiff’s
current problems, in particular her frozen shoulders, are related to the
accident.

[23]        
The causation issue, therefore, is which of the injuries and symptoms now
claimed by the plaintiff are related to the February 23, 2011 vehicle accident?

(a)      Shoulders

[24]        
There is medical evidence from Dr. Yong that the plaintiff had
symptoms in at least her left shoulder following the February 23, 2011
accident. The plaintiff says the symptoms did not stop and, indeed, they
developed into the bilateral frozen shoulders. In contrast, the defendant says
the left shoulder symptoms that were caused by the accident improved
considerably and the frozen shoulders are a different problem that is unrelated
to the accident. In addition, whether there were right shoulder problems of any
significance from the 2011 accident is in dispute.

[25]        
I begin with some general comments about the condition of frozen
shoulders, also called adhesive capsulitis.

[26]        
A frozen shoulder or frozen shoulders are painful and obviously
disabling. The plaintiff confirmed this in her evidence when she testified that
she had constant pain and she could not lift her forearms up further than just
below the level of her elbows. She has considerable difficulty getting dressed
and bathing. Her ability to do housework is greatly restricted. There is no
dispute the plaintiff suffers from this condition; the issue is whether it is
causally related to the 2011 accident.

[27]        
According to Dr. Winston, it arises in 10% of the general
population. People between 50 to 70 years of age can be of risk and it is also
associated with diabetes. Women are at higher risk. If a man is diagnosed with
frozen shoulder a test for diabetes would be appropriate. A shoulder fracture
can also be a risk factor. About 20% of cases are of bilateral frozen shoulders.
Apart from these risk factors, the specific aetiology is not known.

[28]        
The condition is literally a frozen shoulder so that, even if a patient
was under general anaesthetic, the shoulder would not move. It is caused by the
shoulder capsule fibrosing to the point of preventing movement in the shoulder
joint. It is usually not diagnosed until the actual “freezing” but prior to
that there would be a period of increased pain on movement related to the
condition.

[29]        
Dr. Winston opined that the pain might start about two months
before the diagnosis. In the case of the plaintiff here he thought the
plaintiff’s condition started about Christmas 2013. She would have had symptoms
before then but without any freezing/immobility until early 2014. The shoulders
were frozen when he saw the plaintiff in September 2014, although by that
time she had improved range of motion with less pain.

[30]        
Dr. Winston said that cortisone injections can reduce the pain of
frozen shoulder considerably but they do not cure the disease. When he read the
plaintiff’s medical files he noted that she had not received a cortisone
injection and he telephoned Dr. Wee to discuss this treatment of the
symptoms. According to Dr. Wee, the plaintiff decided not to use cortisone
because it was not applicable to tears (discussed below). In his evidence, Dr. Winston
said there was “no literature in the world” supporting that decision.

[31]        
Dr. Winston testified that frozen shoulder is reversible and in his
practice “everyone gets better.” He opined that this takes place within six
months to two years from the date of diagnosis. In a number of cases Dr. Winston
has treated frozen shoulder by simply giving general advice and waiting for the
condition to reverse on its own. He said the literature refers to “re-freezing”
in a small number of cases but he has never seen it in his clinical practice.
He opined that the plaintiff will recover by the summer of 2015 and a full
recovery can be expected.

[32]        
Turning to the specific issue of whether the plaintiff’s frozen shoulders
are related to the 2011 accident, her medical history from the February 23,
2011 accident to the diagnosis of frozen shoulders in 2014 is of some
significance

[33]        
The first medical report, dated the day of the accident on February 23,
2011 and from the plaintiff’s family physician Dr. Yong, described
tenderness of the left shoulder with abduction of 120 degrees and the diagnosis
was of “soft tissue injuries involving the neck, left shoulder blade, and
thoracolumbar area.” In a subsequent examination on March 3, 2011, Dr. Yong
described “tenderness of the shoulders.” On March 16, 2011, there was no
specific finding about the shoulders but there was neck pain that was
improving. On March 31, 2011, there was tenderness in the left shoulder
and abduction was 150 degrees. On April 19, 2011, there were no shoulder
symptoms recorded and on May 3, 2011 and May 19, 2011, there was
tenderness of the left shoulder. On June 16, 2011, there was also
tenderness of the left shoulder and problems lifting heavy luggage. Left
shoulder tenderness continued through visits in 2011 and 2012.

[34]        
In 2013, there were references to tenderness of the left shoulder and
then the focus changed to lower back issues, presumably because of a scan in July 2013
that found a disc protrusion at L5-S1 (discussed below). By the end of 2013
there was increasing shoulder pain and this is consistent with Dr. Winston’s
opinion that the frozen shoulders probably were symptomatic a few months before
they were diagnosed as frozen by Dr. Wee in February 2014.

[35]        
With respect to the right shoulder, Dr. Yong first recorded pain on
May 19, 2011. The next records of this problem were on February 2,
2012, May 15, 2012, September 13, 2012 and September 6, 2013. There
was reference to pain in “both” shoulders on December 19, 2013. There was
no reference to the right shoulder on January 31, 2014 and February 4,
2014. There were 37 visits in total to Dr. Yong from February 23,
2011 to February 4, 2014, with seven of these about right shoulder
problems.

[36]        
The frozen shoulders were then diagnosed by Dr. Wee in February 2014.

[37]        
From this history, I conclude that there are consistent findings of
left shoulder tenderness and pain between February 2011 and February 2014.
I also accept that these were, at least initially, related to the February 2011
accident. With respect to the right shoulder, the history demonstrates that
this condition was not a significant one between February 2011 and February 2014.

[38]        
There was something of a difference between the parties about the
significance of findings of “tenderness” in Dr. Yong’s chart. Dr. Yong
testified that his recording of tenderness meant pain on palpitation and that he
could feel tension in the muscle being touched. Dr. Mann, a chiropractor who
treated the plaintiff, described essentially the same thing in his evidence. Dr. Winston,
a physiatrist and witness for the defendant, did not specifically disagree with
this approach. He said he found pain on palpation but he did not have any note
of muscle tension. From this, I conclude that in some circumstances a
trained medical professional can find muscle tension as well as a response to
pain. I also accept that when both are present that increases the objective
assessment of any finding.

[39]        
There is a sharper difference between the experts about how to interpret
the findings of left shoulder abduction in Dr. Yong’s chart. Shoulder
abduction is lifting an arm straight and sideways from above the knee to the
highest point before there is pain or immobility. According to Dr. Yong
and Dr. Wee, 180 degrees is a “normal” finding of shoulder abduction; that
would be with arm fully extended arm in line with the body and at a right angle
to the floor. On the other hand, Dr. Winston testified that normal abduction
was in the range of 150-160 degrees and few people can do 180 degrees. He
explained that inactivity and tightening of muscles can restrict the range and
problems with the neck and shoulders can distort the use of the measurement. He
opined that he teaches how to measure shoulder abduction to family physicians,
many of them do not know how to measure it properly and they are “starved” for
instruction on the measurement.

[40]        
The significance of this dispute relates to Dr. Yong’s record of
abduction measurements in the 37 visits by the plaintiff (from the accident to
the diagnosis of the frozen shoulders). His findings of left and right shoulder
abduction were as follows on these visits (measurements on the right side were
taken only twice; no measurements of abduction on the right side were taken
during the other visits):

[41]        
Applying Dr. Yong’s view of abduction – that normal is 180 degrees
– the plaintiff had below average findings throughout this period in the left
shoulder. On the other hand, using Dr. Winston’s view that normal is in
the 130-150 degree range, there is little that is remarkable here. No literature
on the subject was submitted by either party. Regardless, it is clear that
there were minimal complaints and investigations of the right shoulder between
2011 and 2014.

[42]        
I accept Dr. Winston’s point that inactivity and tightening in the
muscles controlling shoulder movement would restrict the movement of the shoulder.
He also testified that 180 degrees was an unrealistic “normal” for most people.
This was demonstrated by all witnesses who lifted their arms to demonstrate abduction,
the most obvious point being that at about 120-150 degrees the scapula is
moving instead of the shoulder joint, as explained by Dr. Winston. The
plaintiff has been very inactive since the 2011 accident and, therefore, some
reduced abduction can be attributed to this. As to whether Dr. Yong’s
findings of abduction are significant, I also note his evidence that
abduction is not a measurement that can be replicated with precision each time.
He said he would allow a factor of 20% to compensate for this fact.

[43]        
For these reasons, I conclude that the plaintiff had some reduced
shoulder motion as measured by abduction. However, some of this can be
explained by inactivity on her part and some more of it can be explained by an
error factor to compensate for comparisons between assessments. Overall,
I conclude that Dr. Yong’s findings of abduction are noteworthy but
they do not support the plaintiff’s contention that she suffered from severe
restriction of shoulder movement between 2011 and 2014. That is, the evidence does
not support an association between symptoms in 2011, when there was modest
restriction of primarily the left shoulder, and 2014 when the plaintiff
suffered the significant and disabling condition of bilateral frozen
shoulders. At its worst in 2014, the plaintiff could not lift her
forearms up to the horizontal level and there was virtually no abduction.
However, this is a very different condition than in 2011 and in the one to two years
afterwards.

[44]        
Another sub-issue is that there is evidence of an ultrasound from March 2014
that shows tears of the supraspinatus tendons in both shoulders of the
plaintiff. It is submitted on her behalf that this is objective evidence of her
bilateral shoulder problems. For example, Dr. Wee opined in her report of August 4,
2014 that the tears “… progressed to limitations of motion at the shoulders,
commonly known as frozen shoulder …” Two issues arise from this evidence: were
the tears the result of the February 23, 2011 accident and, if so, were
they of causative significance for the frozen shoulders as diagnosed in February 2014?
Logically, if the answer to the first question is no, it is not necessary to
answer the second one.

[45]        
I accept the opinion of Dr. Winston on this point. As he testified,
the type of tear identified in this case would be expected to produce acute
symptoms almost right away. There is no way to determine the age of the tears
but there is a 50% likelihood that the tears are age related. I take Dr. Wee
to take the same general view when, in cross-examination, she said that she
would have expected a three year old injury (from the 2011 accident) to have
healed by the time of the March 2014 ultrasound that revealed the tears.

[46]        
Overall, I conclude that it is unlikely that the bilateral shoulder
tears are related to the February 2011 motor vehicle accident.

[47]        
A final issue with respect to the shoulders of the plaintiff relates to
the evidence of the improvement in her symptoms after the February 23, 2011
accident. She participated in an active rehabilitation program with Dr. Mann
soon after her injury, from March 1, 2011 until October 25, 2011,
over 50 sessions. A “Final Assessment” was completed on June 6, 2011.
There were visits after that date apparently at the suggestion of Dr. Mann,
but not specifically part of the original rehabilitation program.

[48]        
Dr. Mann’s June 6, 2011 assessment recorded a number of
improved findings. He testified that the plaintiff was back to normal by then with
improved but not normal rotator cuff and hamstring flexibility. His progress
notes indicated that she started two exercises involving the shoulders (lateral
pull down and seated row) using 20 pound weights and these increased to 30 and
then 40 pounds at the end. The prognosis was “good”, with “[s]ignificant
improvement in the patient’s condition” and “[a] full recovery is expected.”
The plaintiff in her evidence disputed these improvements but I prefer the
evidence of Dr. Mann.

[49]        
I also note that the plaintiff herself reported her left shoulder was
improving on several occasions. She told Dr. Winston that the pain was
improving by June 2011 and she testified a little improvement in 2012. She
reported to Dr. Yong on January 3, 2012 that her left shoulder was
improving. Dr. Yong does not record any left shoulder pain on March 13,
March 21 and May 15, 2012. She testified that she could not remember
the pain in 2013 but she told Dr. Yong on January 3, 2013 that the
left shoulder was improving. On cross-examination, she denied any improvement.

[50]        
From this evidence, I conclude that the plaintiff had success with
the active rehabilitation program conducted by Dr. Mann. He believed the
prognosis was for a full recovery when she was assessed in June 2011.
Although there were continued symptoms with the left shoulder, consistent with Dr. Mann’s
conclusion, there was improvement in 2012 and 2013. There were, again, minimal
issues with regards to the right shoulder.

[51]        
From all of the above, I conclude that there is consistent medical
and other evidence that the plaintiff suffered an injury to her left shoulder
in the February 23, 2011 accident. She also had a minor injury to the
right shoulder. The left shoulder problems continued with some improvement
until late 2013. She probably became symptomatic with the frozen shoulder then
and it was diagnosed in February 2014. At that point the bilateral frozen
shoulders became the primary medical problem.

[52]        
However, the evidence does not support a conclusion that the frozen
shoulders in 2014 were related to the 2011 accident. It is more likely that the
bilateral frozen shoulders arose after and independently of the 2011 accident.

(b)      Back

[53]        
The plaintiff complains of pain in her upper and lower back. She is
vague about these symptoms and I conclude that on many occasions her
reference to the upper back is intended to be a reference to her shoulders and
neck, which are addressed above and below, respectively. The low back is a
significant problem for the plaintiff, after the shoulders.

[54]        
Beginning about ten days after the February 23, 2011 accident, on March 3,
2011, Dr. Yong noted tenderness of the lumbar area and left buttock area. An
X-ray of the plaintiff’s lumbar spine on May 5, 2011 showed narrowing of
the disc space. Dr. Wee opined that this was a degenerative change, not
related to trauma, and Dr. Yong confirmed that most people over 50 years
of age have some amount of degenerative disc disease. From this I conclude
that the degenerative change was not caused by the 2011 accident. There is also
evidence that there can be degenerative changes without symptoms.

[55]        
Dr. Mann supervised active rehabilitation of the plaintiff from March 1,
2011 to October 25, 2011 including treatment of the lower back. His
initial assessment on April 27, 2011 was of a stiff lumbar back. His final
assessment on June 6, 2011 (as  explained above, the plaintiff continued
supervised exercises with Dr. Mann after this date) recorded the plaintiff
saying that her lumbar back was improved and Dr. Mann found the lumbar
range of motion was within normal limits. The prognosis was good although there
were continuing complaints about the back (and the neck). Significant
improvement was noted and a full recovery was expected.

[56]        
For the most part, the finding of lumbar tenderness continued throughout
the visits by the plaintiff to Dr. Yong in 2011 and 2012. There were also
findings that straight leg raising on the left side was 70° and there are
references to left leg pain (for example, March 31, 2011 and April 19,
2011). Nonetheless, the diagnosis continued throughout as being a soft tissue
injury, although there is a reference on July 7, 2011 to a possible
impingement of the lumbar nerve root. Between September 14, 2012 and February 19,
2013 there were no references to lower back problems.

[57]        
A CT scan of the lumbar spine on July 17, 2013 showed a disc
protrusion at L5–S1 which contacted and mildly deviated the left S1 nerve root.
As recorded in his chart, Dr. Yong thought this finding may have accounted
for the plaintiff’s symptoms of left leg pain with numbness. However, in
cross-examination, he also agreed that nerve root impingement can occur
spontaneously without trauma. Dr. Wee also thought that there might be a
connection between the finding of the disc protrusion and the left leg problems
recorded by Dr. Yong. But she testified that she could not say when the
findings of the scan occurred and the cause might have been a degenerative
change. Dr. Winston also thought there might be a connection but he said
that all back pain radiates down and he questioned the plaintiff’s current back
symptoms as being related to the 2011 accident.

[58]        
In addition, according to the chart of Dr. Wee, on November 20,
2013 there were no nerve root tension signs present and straight leg raising of
both legs was to 90°. There were left leg and foot problems such as tingling
following this but on April 22, 2014, after two sessions of lumbar
traction, straight leg raising was again normal, sensation was reported as
normal but the left great toe extensor remained weak.

[59]        
Complaints of left side back pain with pain radiating down the left leg
continued into the fall of 2013. Straight leg raising on both sides was 40° on September 6,
2013 but then 80° on both sides on October 24, 2013.

[60]        
On June 13, 2014, nerve conduction studies showed denervation at
the buttocks. Dr. Wee agreed this reflected an active denervation, not an
older one where recovery had been taking place. She also agreed that, if this
was a three year old injury, there would be signs of re-enervation or healing. Dr. Wee
also confirmed recent improvements with the plaintiff’s left foot numbness,
beginning in August 2014 and noted on January 22, 2015. For her part,
the plaintiff confirmed in her testimony that she has had recent improvement.

[61]        
In summary, it seems clear that the plaintiff had lower back problems
after and as a result of the February 23, 2011 accident. The primary
diagnosis was of a soft tissue injury. There is radiological evidence of
degenerative changes in the plaintiff’s back in May 2011 but these
pre-existed the accident. Active rehabilitation from March to October 2011
produced significant improvement in the plaintiff’s back with a prognosis for
full recovery. A CT scan in July 2013 showed a disc protrusion at L5-S1.
This likely explained the plaintiff’s left leg symptoms. However, taken
overall, the evidence, including the pre-existing degeneration, is that the
disc protrusion is not related to the 2011 accident. If the 2011 accident
aggravated the underlying degenerative changes that aggravation was a minor
one. Similarly, findings of denervation in the buttocks in June 2014 were
likely recent rather than related to the accident. Finally, the plaintiff’s
back symptoms are clearly improving, as reported by her and recorded by her
doctors.

[62]        
I conclude that the February 23, 2011 accident caused soft-tissue
injury to the plaintiff’s lower back with possibly a minor aggravation of
underlying degenerative changes. These are improving, albeit slowly. Any
current problems with a disc protrusion at L5-S1 or denervation are not related
to the 2011 accident.

(c)      Neck

[63]        
The plaintiff says she suffered neck pain as a result of the 2011
accident and I accept that was the case. For example, Dr. Yong’s
chart for July 31, 2012 recorded “neck strain causing headaches” although
the neck had a full range of motion.

[64]        
The issue is whether the plaintiff’s current neck pain four years after
the accident is related to the accident. As the plaintiff describes her
symptoms there is some overlap between the neck and shoulders.

[65]        
Dr. Wee testified that it is “possible” the current neck pain was
caused by the accident but that is not proof to a balance of probabilities.
I can only conclude that there is no medical evidence supporting a
relationship between the neck problems and the accident.

(d)      Psychological (including pain, driving and sleep)

[66]        
As above, there are expert reports in the field of psychiatry from the
plaintiff and defendant on this issue. Dr. Shane, an expert for the plaintiff,
has diagnosed a driving phobia, a somatic symptom disorder and an adjustment
disorder.

[67]        
With respect to somatic symptom disorder Dr. Shane concluded that
the plaintiff met the following diagnostic criteria from the DSM-V (the
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition):

(a)  one or more somatic symptoms
that are distressing;

(b)  excessive concerns regarding
one’s health which creates problems with anxiety over health concerns;

(c)  the symptoms typically
persist for more than six months.

[68]        
Dr. Robertson, the expert for the defendant, said he did not have “sufficient
information to state that [the plaintiff] would meet criteria for Somatic
Symptom Disorder which describes significant impact of mental health symptoms
on her physical pain.” In his oral evidence Dr. Robertson stated that he
could not find any unexplained physical symptoms; I take that to mean that
the plaintiff’s symptoms have a physical rather than somatic basis. However,
I also note, as did Dr. Robertson, that Dr. Winston commented that
anxiety and depression may be contributing to the plaintiff’s pain picture. Dr.
Robertson also agreed that the plaintiff presents herself as significantly in
pain. Certainly, that was her presentation in her evidence.

[69]        
Dr. Robertson did opine that the plaintiff met the criteria for a major
depressive disorder in late 2013 and early 2014, in the moderate to severe
range, but this has been in remission over the last few months. She also had
some moderate depressive symptoms since the accident in February 2011 but the plaintiff
has been able to maintain social, recreational and family relationships and
some work.

[70]        
As I read the two opinions on the issue of somatic symptom disorder, Dr.
Shane opines that the plaintiff meets the DSM-V criteria but Dr. Robertson says
he does not have sufficient evidence to make that diagnosis. Both doctors
accept that she presents with significant pain and Dr. Winston comments on the
relationship between her pain and her physical health.

[71]        
I accept Dr. Shane’s opinion that the plaintiff suffers from somatic
symptom disorder. This occurred as a result of the 2011 accident. Unfortunately
the plaintiff has not received any specific treatment for this (other than
general advice from Dr. Yong) and the condition continues to be a valid
diagnosis.

[72]        
Dr. Robertson, the expert for the defendant, also opined that the
plaintiff met the criteria for a specific phobia of driving or being a
passenger. Symptoms were present for about two years after the February 23, 2011
accident but have improved recently. He concluded that he did not have
sufficient information to state whether the plaintiff had a somatic symptom
disorder because her symptoms appeared to be related to physical causes. Dr. Shane,
the expert psychiatrist for the plaintiff, provided a clear diagnosis of a
driving phobia.

[73]        
The evidence is clear that the plaintiff suffered a phobia of driving or
being a passenger in a vehicle as a result of the 2011 accident. The only
difference between the two experts is whether the symptoms continue. I find
they have continued although with improvement, as the plaintiff testified.

[74]        
Dr. Shane opined that the plaintiff has an adjustment disorder with
mixed anxiety and depressed mood. He also thought there is an unspecified
depressive disorder. Dr. Robertson noted increased anxiety as a result of pain from
the 2011 accident as well as other unrelated medical and family issues. I conclude
that the plaintiff’s anxiety and depression can be adequately explained under
the diagnosis of somatic symptom disorder.

[75]        
There is a reference by Dr. Yong to post-traumatic stress disorder (for
example, July 7, 2011). However, both experts in psychiatry conclude the
plaintiff does not meet the criteria for this condition and I adopt those
opinions.

(e)      Other

[76]        
The plaintiff says that she has left eye problems related to the 2011
accident. Dr. Yong’s report of August 19, 2014 records his chart notes of October
4, 2011 in which he describes a referral to an eye doctor who thought that
vitreous syneresis was contributing to the problem. Dr. Wee testified that it
was possible the eye problem was related to the accident but that is not proof
to the required standard of balance of probabilities. There is no other medical
evidence that the left eye problem was caused by the 2011 accident. I find any
association has not been proven to the required standard.

[77]        
The plaintiff also says she has problems with tinnitus, a left rib, left
groin and Achilles tendon. Dr. Wee also says that it is possible these
conditions are related to the accident but, again, that is not sufficient
proof. Assuming that these injuries had some connection to the trauma of the February
23, 2011 accident, which is doubtful, any current problems are unrelated.

C. DAMAGES

[78]        
I have found above that the February 23, 2011 vehicle accident caused
soft-tissue injuries to the left shoulder and lower back. There was also a
minor aggravation of a disc protrusion at L5-S1 in the back and minimal soft
tissue injury to the right shoulder.

[79]        
The evidence does not support a causal relationship between the 2011
accident and the frozen shoulders which are causing the plaintiff the most
difficulty now. There is also a somatic symptom disorder and a driving phobia
that were caused by the accident. The evidence also does not support a conclusion
that other injuries such as vision problems and tinnitus were caused by the
accident.

[80]        
With the above in mind, I will proceed to consider the issue of damages.

(a)      Special damages

[81]        
The parties are agreed on an amount of $8,321.91 for special damages. I accept
that amount and make that order.

(b)      Past loss of income

[82]        
The plaintiff claims $40,000 for past loss of earnings; the defendants
say no damages are justified under this head.

[83]        
A claim for past loss of earnings is for the loss of earning capacity or
the loss of the value of the work that the plaintiff would have performed but
was unable to perform because of the injury (Rowe v. Bobell Express Ltd., 2005
BCCA 141 at para. 30).

[84]        
It seems clear that it is a matter of the loss of earning capacity
rather than the loss of actual income, although the loss of income can be a way
to measure loss of capacity. This is described by Kenneth D. Cooper-Stephenson
in Personal Injury Damages in Canada, 2nd ed. (Scarborough, Ont.:
Carswell, 1996) at 205-206 as follows:

…The essence of the task under
this head of damages is to award compensation for any pecuniary loss which will
result from an inability to work. “Loss of the value of work” is the substance
of the claim – loss of the value of any work the plaintiff would have done but
for the accident but now will be unable to do. The loss framed in this way may
be measured in different ways. Sometimes it will be measured by reference to
the actual earnings the plaintiff would have received; sometimes by a replacement
cost evaluation of tasks which the plaintiff will now be unable to perform;
sometimes by an assessment of reduced company profits; and sometimes by
the amount of secondary income lost, such as shared family income.

[85]        
Our Court of Appeal in Rowe at para. 32 also adopted the
following from an Australian decision (Arthur Robinson (Grafton) Pty Ltd. v.
Carter (1968), 122 C.L.R. 649 at 658, [1968] H.C.A. 9):

The respondent is not to be
compensated for loss of earnings but for loss of earning capacity. However much
the valuation of the loss of earning capacity involves the consideration of
what moneys could have been produced by the exercise of the respondent’s former
earning capacity, it is the loss of that capacity, and not the failure to
receive wages for the future, which is to be the subject of fair compensation.
In so saying, I realize that many statements may be found in the reported cases
where loss of earnings has been the description of this element in special
damages. But I do not find that in these it was necessary to consider or draw
the distinction between the loss of earnings and the loss of earning capacity.
But where in Australia attention has been drawn to the distinction,
authoritative expressions with which I respectfully agree have indicated that
it is loss of earning capacity and not loss of earnings that is to be the
subject of compensation. But though this is I think the recognized position in
Australia, the wages which would have been earned between the receipt of the
injury and the date of trial are somewhat illogically, as I think, calculated
and treated as special damages. In my opinion, it would be better that they
should not be so treated for amongst other things, such treatment tends to
plant in the mind the idea that it is the loss of the earnings which is to be
compensated. On the other hand, not to so treat them would help to emphasize
that it is the loss of earning capacity which is the subject of the damages.
However, in most cases they may have but small practical significance; and in
this case, in relative terms, none.

[86]        
In addition, a claim for past (or future) lost earning capacity is an
assessment rather than a calculation, it requires considerations of fairness
and reasonableness and all negative and positive contingencies are to be taken
into account (Abbott v. Gerges, 2014 BCSC 1329 at para. 165).

[87]        
In the subject case, I repeat the plaintiff’s history of income as
follows:

(a) The plaintiff testified that her only
income in 2014 was selling about $900 worth of stock. There is no evidence of
her net income for that year.

[88]        
The plaintiff’s total net income for the period 2006 to 2010 (the year
before the February 23, 2011 accident) is $6,583. An average amount over those
five years is $1,316.60. Calculating the plaintiff’s income from 2007 to 2103
on the basis of business use of household expenses does not assist the
plaintiff. It would result in an increase of $18 for 2013, less income for 2007
and 2010 and the same income for the other years.

[89]        
Between the accident and the trial was a four year period. However, from
the end of 2013 and certainly by February 2014, the primary problem for the
plaintiff was the frozen shoulders. Since that
condition is not related to the 2011 accident, I will not include 2014 in the
calculation of past loss of earnings. Applying the average of $1,316.60 from
the previous years to the years 2011 – 2013, an income of $3,949.80 would be
expected. She earned $2,560 over that period and that reflects a loss of
$1,389.

[90]        
In light of the modest earnings of the plaintiff and the onset of the frozen shoulders in 2013-2014, I conclude that the amount of
$1,389 represents the loss of the plaintiff’s earning capacity that can be
attributed to the 2011 accident.

(c)      Non-pecuniary damages

[91]        
The plaintiff seeks damages for non-pecuniary
loss in the amount of $85,000. This is on the basis of all of the plaintiff’s
injuries, including the frozen shoulders, being causally related to the 2011
accident. Cases cited to support this figure include Peake v. Higo, 2009
BCSC 265; Juraski v. Beek, 2011 BCSC 982; Mandra v. Lu,
2014 BCSC 2199; and Milliken v. Rowe, 2011 BCSC 1458.

[92]        
According to the defendant, total damages in the
amount of $45,000 to $55,000 for non-pecuniary loss are appropriate in this case.
The defendant excludes the bilateral frozen shoulders from this assessment. From
this, an amount should be deducted for the plaintiff’s failure to mitigate her
damages by not following recommendations for psychotherapy. The result would be
$48,000 in total. Authorities relied on by the defendant include Johal; Connolly
v. Cowie, 2012 BCSC 242; Prempeh v. Boisvert, 2012
BCSC 304; and Hay v. Benzer, 2014 BCSC 1522.

[93]        
The broad framework for the assessment of
non-pecuniary damages has been set out by our Court of Appeal (Stapley v.
Hejslet, 2006 BCCA 34):

[46] The inexhaustive list of common factors
cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an
award of non-pecuniary damages includes:

(a) age of the
plaintiff;

(b) nature of the
injury;

(c) severity and
duration of pain;

(d) disability;

(e) emotional
suffering; and

(f) loss or
impairment of life;

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

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

(h) impairment of
physical and mental abilities;

(i) loss of
lifestyle; and

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

[Emphasis
omitted.]

[94]        
The plaintiff was 57 years old at trial. She is married with three adult
children. She studied business in the Philippines and worked in real estate and
jewellery before coming to Canada in 1995. In Canada she continued her
jewellery business, working part-time selling her and others’ jewellery and
other things such as scarves. These sales took place at craft fairs and church
functions. Prior to the 2011 vehicle accident the plaintiff had minimal medical
issues.

[95]        
It is clear that the plaintiff suffered soft-tissue injuries to her left
shoulder and lower back in the 2011 accident. There was also a minor
soft-tissue injury to the right shoulder. In addition there is a somatic
symptom disorder and driving phobia arising from the 2011 accident. On the
basis of my conclusion on causation above, the frozen shoulders and other
conditions such as vision and tinnitus are not part of the assessment of
non-pecuniary damages because they have not been demonstrated to be related to
the 2011 accident.

[96]        
As a result of the injuries related to the accident, the plaintiff had
trouble sleeping immediately afterwards and she had difficulty performing daily
activities such as getting dressed, laundry, shopping, changing bed linen,
picking up her dog and house work. She stopped working until the summer of
2011. Her husband took over more of the housekeeping including cooking and
cleaning and he continues to do so.

[97]        
In the mind of the plaintiff, all of her current pain and limitations
are a result of the 2011 accident and the frozen shoulders.
However, there is real difficulty separating out the shoulder problems
that are related to the frozen shoulders and the ones
that are related to the 2011 accident. In her evidence, the plaintiff
demonstrated some confusion about her history and her telling of it included
some inconsistencies. Her doctors acknowledge she is a poor historian. The
reasons for this include an issue with English as a second language, the
genuine complexity of her medical conditions, her obvious distress from pain
and the stress of giving evidence itself. I do not find that the plaintiff is
dishonest. The defendant does not make that claim but urges caution when
considering the plaintiff’s evidence.

[98]        
I find that the plaintiff continues to have minimal left shoulder soft
tissue injuries as a result of the accident. Except for the frozen
shoulders, there is no evidence of any lingering issue with the right
shoulder. She also continues to have mild low back pain from the accident. The
objective evidence for these conditions is significantly less than the
plaintiff’s subjective descriptions. To some extent this is explained by the somatic
symptom disorder which I have found is related to the 2011 accident. Again, the
frozen shoulders are the dominant medical issue inducing
pain. The driving phobia continues and limits the activities and work of the
plaintiff and she is now reliant on her husband to drive her. Even as a
passenger she continues to have difficulty being in a vehicle.

[99]        
The plaintiff’s lifestyle has been significantly impaired but most of
this is a result of the frozen shoulders. Having said that, I accept that her
relationship with her husband has become more strained as they adjusted to her limited
function after the 2011 accident. This has become much more significant since
the onset of the frozen shoulders in late 2013 and into early 2014.

[100]     Despite
her difficulties, the plaintiff testified that she is improving, albeit slowly.
Her doctors have recorded her saying that and they confirm that is consistent
with their findings over time.

[101]     Bearing in
mind the injuries that are related to the 2011 accident, I assess the plaintiff’s
non-pecuniary damages for pain and suffering at $50,000.

[102]     The defendant
submits that non-pecuniary damages should be reduced because the plaintiff did
not complete a course of psychotherapy. However, in my view, the plaintiff was
entitled to make that judgment about her mental health and I do not agree her
decision creates an issue of mitigation.

(d)      Cost of future care

[103]    
The plaintiff seeks damages for future care in
the amount of $35,000, relying on the expert reports of Ms. Winkler and Ms. Flores.
The defendant submits that an amount of $10,000 is appropriate for future care.
The cost of future care for the frozen shoulders is not a consideration in
damages here, although it is obviously a consideration outside this litigation.

[104]    
A useful summary of the approach to be taken
when considering the cost of future care is that of McLachlin, J. (as she then
was) in a previous decision of this Court (Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.)):

[195] … In Andrews [Andrews v.
Grand & Toy (Alta) Ltd., [1978] 2 S.C.R. 229], supra, Dickson J.
(as he then was) distinguished damages for cost of future care from damages for
non-pecuniary loss in the following terms at p. 603:

The money for
future care is to provide physical arrangements for assistance, equipment and
facilities directly related to the [plaintiff’s] injuries. Additional money to
make life more endurable should then be seen as providing more general physical
arrangements above and beyond those relating directly to the injuries.

[196] The physical arrangements to be used
in assessing cost of future care are based on what is required to preserve and
promote the plaintiff’s health. In Andrews, supra, Dickson J.
said at p. 586:

…to the extent,
within reason, that money can be used to sustain or improve the mental or
physical health of the injured person it may properly form part of a claim. . .
.

[197] In Thornton [Thornton v. Sch
Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267], supra, the
court, in defining “optimal care” stated at p. 609:

…it is clear from
the medical evidence that the term merely connotes an ongoing practical level
of orderly care in a home environment.

[198] If there was any doubt as to whether
the award for cost of future care must be justified on a medical basis, it was
dispelled by MacDonald v. Alderson, [1982] 3 W.W.R. 385, leave to appeal
to the Supreme Court of Canada refused. In that case it was suggested that the
plaintiff, a quadriplegic, should be awarded sufficient funds to purchase and
maintain his own house on the non-medical grounds that this would give him a
greater sense of “ ‘autonomy, privacy, financial stability and pride of
ownership . . . and greater opportunities for gardening, owning a pet, and more
space for hobbies’”. The Manitoba Court of Appeal rejected this evidence as “subjective
theorizing” and reduced the award made at trial. The test for determining the
appropriate award under the heading of cost of future care, it may be inferred,
is an objective one based on medical evidence.

[199] These 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. On the latter point, Dickson J. stated
in Andrews at p. 586:

An award must be
moderate, and fair to both parties . . . But, in a case like the present, where
both courts have favoured a home environment, “reasonable” means reasonableness
in what is to be provided in that home environment.

[200] This then must be the basis upon which
damages for costs of future care are assessed.

[201] It follows
that I must reject the plaintiff’s submission that damages for cost of future
care should take into account the cost of amenities which serve the sole
function of making the plaintiff’s life more bearable or enjoyable. The award
for cost of care should reflect what the evidence establishes is reasonably
necessary to preserve the plaintiff’s health. At the same time, it must be
recognized that happiness and health are often intertwined.

[105]     The expert evidence on the specific issues of future care is
contained in the reports of the two occupational therapists, Ms. Winkler for
the plaintiff and Ms. Flores for the defendant. They are agreed on some
matters, but not all.

[106]     In my view the following claims for future care are justified on a
medical basis and are reasonable in this case:

(i)       Pain management

[107]     Ms. Flores
opines that the plaintiff would benefit from participation in pain management
assistance to assist her in her daily activities. On the basis of the finding
that the plaintiff suffers from somatic symptom disorder and her presentation
during her evidence, I agree that some pain management assistance is justified
on a medical basis. The objective is to provide training and education in
self-management of pain to the plaintiff in order to optimize her functional
capacity, bearing in mind that the defendant is not responsible for any pain
associated with the frozen shoulders.

[108]     The Change
Pain Program as described by Ms. Flores is appropriate for the plaintiff. It
includes an initial consultation, a pain program, trigger point injections and
options for follow-up. Some of the costs are covered by the Medical Services
Plan. A one-time cost of $750 is appropriate for pain management.

(ii)      Physiotherapy

[109]     Ms. Winkler
and Ms. Flores agree that physiotherapy is required for the plaintiff. They
differ inasmuch as Ms. Winkler includes the frozen shoulders
as part of her recommendations while Ms. Flores provides recommendations for
physiotherapy in that case and, in the alternative, in the case of the frozen shoulders not being related to the 2011 accident.

[110]     I conclude
that an initial somewhat intensive regime of physiotherapy is justified. This
will be two sessions per week over eight weeks and then one session per week
over a second eight weeks. The total sessions will be 24 at a cost of $55 per
session. Total one-time cost is $1,320.

(iii)     Massage therapy

[111]     There is
agreement that massage therapy provides relief of the plaintiff’s symptoms.
Physiotherapy may well increase symptoms in the short term.

[112]     There will
be one massage therapy session per week over 24 weeks. At $50 per session, the
total one-time cost is $1,200.

(iv)     Psychiatry and psychology

[113]     Ms. Flores
agrees with the assessment and recommendations of Ms. Winkler as to treatment
for somatic symptom disorder. Both observed the plaintiff being tearful and
emotional when discussing her injuries.

[114]     Psychiatric
services are covered by Medical Services Plan. Other than a reference to a cost
of $200 per hour there is no specific psychological program referenced in the
evidence. Pain management is considered above and the driving phobia is
considered below.

(v)      Occupational therapy

[115]     There is
agreement that occupational therapy would assist the plaintiff in her
activities at home and in the community. The objective is to provide education
and support to make functional gains and promote increased activity as required
for the injuries that are related to the 2011 accident.

[116]     I agree
that some occupational therapy is appropriate. There will be eight sessions
over two months. At a cost of $95 per session, there is a one-time cost of
$760.

(vi)     Driver rehabilitation services

[117]     The
plaintiff has a diagnosed driver phobia as a result of the 2011 accident. She
has been unable to drive since the accident and she is not comfortable being a
passenger. This limits her activities and work. Ms. Winkler and Ms. Flores
agree on the type of program and cost.

[118]     Ms. Winkler
provided as options two programs, the Holy Family Hospital driver rehabilitation
program and the Community Therapists driver rehabilitation program. They are
similar in design. There is an initial evaluation then and then up to ten
on-road lessons. This would start after the resolution of the frozen
shoulders, estimated by Dr. Winston to be in summer 2015.

[119]     A one-time
cost of $2,000 is assessed for driver rehabilitation.

(vii)    Household management

[120]     There is
agreement between Ms. Winkler and Ms. Flores that some assistance with
household management is justified. There is a difference on the extent of this
assistance. Ms. Winkler’s assessment includes recommendations for the frozen shoulders.

[121]     The soft
tissue injuries caused by the 2011 injury have improved and the expectation is
that they will continue to improve, with physiotherapy and other supports. The
plaintiff currently uses housekeeping and homecare assistance twice a week, one
hour each visit, and this includes assistance with the frozen
shoulders.

[122]     I conclude
that one visit a week for a one year period is an appropriate level of
household assistance in these circumstances. At a cost of $24 per hour the
total one-time cost is $1,248.

(viii)   Gym/pool pass

[123]     Ms. Winkler
and Ms. Flores are agreed that pool and gym activities would assist the
plaintiff to manage her symptoms.

[124]     At an
annual cost of $380 this is justified for two years. The total one-time cost is
$760.

(ix)     Transportation

[125]     The
primary injury related to the 2011 accident is the driving phobia and in my
view this issue has largely been addressed under driver rehabilitation above. I
accept that the frozen shoulders are a major impediment to the mobility of the
plaintiff but that is not something that is causally related to the 2011
accident.

[126]     I make no
award for transportation.

(x)      Equipment

[127]     Equipment
discussed by Ms. Winkler addresses the plaintiff’s frozen
shoulders including a long-handled reaching stick, dressing stick and
long-handled sponge.

[128]     The defendant
has provided a hospital bed, apparently to address neck and back pain at night.
A one-time replacement at current cost of this is justified. No cost has been
provided.

(xi)     Medication

[129]     The
plaintiff uses a number of medications but the evidence is not at all clear as
to which are for the soft-tissue injuries from the 2011 accident and which are
for the frozen shoulders. She does not, however,
overuse medications.

[130]     On the
basis of the plaintiff’s evidence and her presentation while giving evidence and
on the basis of the medical report, I conclude that the frozen
shoulders are the most significant reason for the current medications.

[131]     According
to Dr. Winston in his September 17, 2014 report, the medications currently used
by the plaintiff are Tramacet (for pain), A535 (heat rub), Aleve (anti-inflammatory)
and Salonpas (pain patch). Ms. Flores estimates the cost of these medications
to be $600 or more, depending on usage. Ms. Winkler recorded in her report of October
22, 2014 that the plaintiff uses Diclofenac, Clonazepam, Vimovo and Sublinox,
two of these being for sleep. Why these are two different lists is not
explained.

[132]     I accept
that the plaintiff is entitled to some medication for her soft-tissue injuries,
as distinct from the frozen shoulders. The evidence
does not permit a confident estimate of the duration although it will likely
continue to be necessary after the frozen shoulders are
resolved, hopefully in summer 2015. I assess a one-time cost of $500 for
medications.

(e)      Future loss of earning

[133]    
According to the plaintiff the loss of her future
earning capacity justifies damages in the amount of $75,000. The defendant
submits that damages for loss of future earning capacity should be $1,000.

[134]    
The following sets out the general approach to
the assessment of future earning capacity (Tsalamandris v. McLeod, 2012
BCCA 239 at para. 31):

[31] The appellants do contest how the trial
judge then went about assessing that loss [of future earning capacity]. The
trial judge set out to apply the principles canvassed in Rosvold v. Dunlop, 2001
BCCA 1, saying at para. 259:

The principles
that govern the measurement of damages for loss of earning capacity were
thoroughly discussed in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d)
158. The principles set out in that case can be summarized as follows:

1. the assessment
of damages is not a precise mathematical calculation but a matter of judgment;

2. a plaintiff is
entitled to be put in the position she would have been but for the accident;

3. an award for
loss of earning capacity recognizes that the ability to earn income is an asset
and the plaintiff deserves compensation if this asset has been taken away or
impaired;

4. since these
damages must often be based on a hypothetical, the standard of proof of a
hypothetical is “real and substantial possibility” and not mere speculation;

5. the court must
consider the real and substantial possibilities, and give weight to them
according to the percentage chance they would have happened or will happen;

6. one starting approach
to valuation may be to compare the likely future of the plaintiff had the
accident not happened, and the likely future of the plaintiff after the
accident has happened, and to consider the present value of the difference
between the amounts earned under these two scenarios. (I note that in using the
word “likely”, the Court on this point was meaning what hypothetical was a real
and substantial possibility);

7. however, the overall fairness and
reasonableness of the award must be considered, taking into account all of the
evidence.

[135]    
The cases also suggest using an approach based
on a loss of earnings method for the assessment of the loss of future earning
capacity. This involves the so-called “Brown factors” as follows (Perren
v. Lalari, 2010 BCCA 140 at para. 11):

[11] … In Kwei [Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 393], where it was not possible to assess damages in a
pecuniary way as was done in Steenblok [Steenblok v. Funk (1990),
46 B.C.L.R. (2d) 133 (C.A.)], Taggart J.A., speaking for the Court, held that
the correct approach was to consider the factors described by Finch J., as he
then was, in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. Mr. Kwei had
suffered a significant head injury with significant permanent sequelae that
impaired his intellectual functioning. However, both before and after the
accident, he worked at a variety of low paying jobs, thus making it difficult
for him to demonstrate a pecuniary loss. Mr. Justice Taggart cited the Brown
factors with approval:

[25] The trial judge,
as I have said, referred to the judgment of Mr. Justice Finch in Brown v.
Golaiy. Future loss of earning capacity was at issue in that case. It
stemmed from quite a different type of injury than the injury sustained by the
plaintiff in the case at bar. But I think the considerations referred to by Mr.
Justice Finch at p. 4 of his reasons have application in cases where loss of
future earning capacity is in issue. I refer to this language at p. 4 of Mr. Justice
Finch’s judgment:

The
means by which the value of the lost, or impaired, asset is to be assessed
varies of course from case to case. Some of the considerations to take into
account in making that assessment include whether:

1. The plaintiff
has been rendered less capable overall from earning income from all types of
employment;

2. The plaintiff
is less marketable or attractive as an employee to potential employers;

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

4. The plaintiff is less valuable to
himself as a person capable of earning income in a competitive labour market.

[136]     Turning to the evidence as above, the plaintiff has a history of
modest earnings. She earned an average of $1,316 over the five years before the
2011 accident (with a range of $2,656 to $123). I have found above that her
past loss of earnings is $1,389.

[137]     I do not consider this a case where the previous loss of earnings
can be directly transposed to the assessment of a future loss. This is because
there is reason to find that the medical problems that are related to the 2011
accident have improved considerably. Again, the current problem is the frozen
shoulders. On the other hand, the somatic symptom disorder and driving phobia
continue.

[138]     On a loss of capacity basis, I accept the plaintiff has been
rendered less capable from earning income from all types of employment and she
is less able to take advantage of all job opportunities that might have been
available to her but for the 2011 accident. I assess the loss of future earning
capacity at $15,000.

(f)       In trust claim

[139]     The
plaintiff makes an in trust claim in the amount of $10,000 to compensate Mr. Matias
for the care he has provided to the plaintiff. The defendant says there is no
basis for an in trust claim in this case.

[140]    
The principles to be applied to an assessment of an in trust claim have
been discussed in a previous decision (Bystedt v. Hay, 2001 BCSC 1735 at
para. 180) as follows:

[180] From a review of these authorities on can construct a
summary of the factors to be considered in the assessment of “in trust” claims:

(a) the services provided must
replace services necessary for the care of the plaintiff as a result of a
plaintiff’s injuries;

(b) if the services are rendered by
a family member, they must be over and above what would be expected from the
family relationship (here, the normal care of an uninjured child);

(c) the maximum value of such
services is the cost of obtaining the services outside the family;

(d) where the opportunity cost to
the care-giving family member is lower than the cost of obtaining the services
independently, the court will award the lower amount;

(e) quantification should reflect
the true and reasonable value of the services performed taking into account the
time, quality and nature of those services. In this regard, the damages should
reflect the wage of a substitute caregiver. There should not be a discounting
or undervaluation of such services because of the nature of the relationship;
and,

(f) the family members providing the services need not
forego other income and there need not be payment for the services rendered.

[141]     In this
case, there is no dispute that the care of the plaintiff was by a family
member, Mr. Matias, the husband. Similarly, the need for care was related to
the injuries suffered by the plaintiff until at least late 2013 or early 2014. Ms.
Flores and Ms. Winkler agree that an hourly rate for housekeeping and home care
would be $24 per hour. Mr. Matias works for Canada Post.

[142]     The
quantification of the specific time spent by Mr. Matias in assisting the
plaintiff is not available. I accept that this is not possible where some
assistance is provided in small amounts of time and other assistance is
provided over larger amounts of time. There is no question that Mr. Matias has
assisted the plaintiff with her daily activities such as dressing and bathing
since the 2011 accident. There was some sharing of household chores before the
accident but the evidence is clear that Mr. Matias has taken over more of the
cooking and cleaning of the house from the plaintiff.

[143]     I conclude
that some in-trust payment is warranted and I assess $3,500 as an appropriate
amount.

E. Summary

[144]     The
following damages are justified as being causally related to the injuries of
the plaintiff that arose from the 2011 vehicle accident:

“Steeves, J.”