IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150306

Docket: M138480

Registry:
New Westminster

Between:

Samantha Ann
Lemyre

Plaintiff

And

Gertrude Loretta
Stubbert, Lorna Kerr, James Safronick

and Fleet Wing
Enterprises Ltd.

Defendants

Before:
The Honourable Madam Justice Fleming

Oral Reasons for Judgment

(Via
telephone)

[1]            
THE COURT: The plaintiff, Samantha Lemyre, claims damages for
injuries she sustained in a motor vehicle accident. Liability has been admitted
by the defendant, Gertrude Stubbert, in this fast track action brought pursuant
to Rule 15-1 of the Supreme Court Civil Rules. The plaintiff
discontinued the action against the other defendants. The plaintiff seeks
non-pecuniary damages, special damages, and the cost of future care.

[2]            
The accident occurred on January 15th, 2010 at the intersection of 14th
Avenue and Cedar Street in Mission, B.C. At the time of the accident, the
plaintiff was a passenger in the front seat of a truck driven by Lorna Kerr. Ms.
Lemyre’s daughter, Jennifer Safronick, was in the back seat having just been
picked up from school. Ms. Kerr was turning left when the truck collided with
or was struck by Ms. Stubbert’s car. Ms. Lemyre was aware the accident was
about to occur and braced herself prior to the collision. Ms. Lemyre recalled
the force of the impact pushing the truck to the other side of the road. There
was moderate damage to both vehicles.

[3]            
In her notice of civil claim, the plaintiff alleges the accident caused
injuries to her neck, left arm, and left collarbone, loss of sleep, loss of and
restriction of movement, continuing pain and emotional distress. She complains
that she continues to suffer from constant neck and left arm pain, as well as
frequent headaches. She does not assert the accident worsened the symptoms of
Crohn’s disease which she had suffered from for many years and has received
disability benefits for since 2008.

[4]            
The defendant takes the position the plaintiff suffered mild soft tissue
injuries in the accident that should have resolved in a short period of time.
She argues that the plaintiff’s ongoing complaints are the result of a
pre-existing condition, namely, neck pain.

[5]            
At the trial, the plaintiff relied upon her own testimony, that of her
two adult children and a close friend, as well as expert evidence from her
family doctor, her treating gastroenterologist, and a specialist in physical
medicine and rehabilitation.

[6]            
The defence called no witnesses and relied upon the medical/legal report
of an orthopaedic surgeon.

The Plaintiff’s Circumstances Prior to the Accident

[7]            
The plaintiff, who is now 47, was born in England. She moved to Canada when
she was 11. At the age of 17, she was diagnosed with Crohn’s disease, an
inflammatory bowel condition. Since then the plaintiff has suffered from
ongoing intermittent flare-ups that include abdominal pain which is at times
severe, diarrhea, fatigue, dehydration, and a loss of appetite or an inability
to eat. She has undergone surgery twice and has been hospitalized on many
occasions. The first surgery occurred in 1987 and involved a resection of her
bowel.

[8]            
The plaintiff’s son, Tyler, was born in 1986 and her daughter, Jennifer,
in 1993. In 2001, the plaintiff and her children moved to England to spend time
with her father and extended family. While there, in or about 2008, the
plaintiff slipped and fell in a bathtub. She testified to banging the front of
her head and seeking some medical treatment for a possible concussion but
described the incident as minor. She denied suffering any injury to her neck in
the fall.

[9]            
After returning to Canada in 2008, the plaintiff applied for and began
to receive disability benefits from the provincial government because of her
Crohn’s disease.

[10]        
In 2009, the plaintiff experienced a severe flare-up of her Crohn’s
disease and underwent a second surgery. It took her a long time to recover and
she continued to experience abdominal pain for which she was prescribed pain
medication. She refused other forms of medication. The plaintiff testified to
experiencing migraine headaches prior to the accident that started when her
children were young. They occurred once or twice a month and were managed quite
successfully with medication.

[11]        
The plaintiff testified that despite her Crohn’s disease she was a very
active person prior to the accident. She walked frequently, she took pride in
her tidy home, she cooked and cleaned every day, she very much enjoyed spending
time with her children, and when they were younger she found great pleasure in
taking them to the park and playing with them. She said her activities were not
restricted in any way except when she experienced a Crohn’s flare-up which
occurred unpredictably and variably. Typically, an episode would last a day or
two. She stayed at home close to the bathroom and perhaps in bed at those times.

[12]        
At the time of the accident, the plaintiff’s son Tyler was living with
her and Jennifer was living with her father, James Safronick.

[13]        
Ms. Lemyre spent weekends with Jennifer, either at her own home or at
Mr. Safronick’s. Sometimes Ms. Lemyre would stay longer and remain for the
balance of the week.

[14]        
On the day of the accident, Ms. Lemyre was visiting Mr. Safronick. The
accident occurred after she and his partner Lorna Kerr, had left and picked up
Jennifer at school.

[15]        
Ms. Lemyre testified that she did not feel injured immediately after the
accident. She was concerned about Jennifer who was crying and shaking, and the
defendant, Ms. Stubbert. Ms. Lemyre described Ms. Stubbert as elderly and
wearing an oxygen mask.

[16]        
An ambulance attended the scene but Ms. Lemyre and Jennifer returned to
Mr. Safronick’s home with Ms. Kerr. Within an hour or so of the accident,
Ms. Lemyre began to feel stiffness and pain in her neck and left arm. Later
that day, she went to the Emergency Department at Mission Hospital. Her arm was
placed in a sling that increased the pain in her neck so she removed it. She
was advised by the attending physician to follow up with her family doctor
which she did on or about January 23rd, 2010.

[17]        
In the days following the accident, the symptoms in Ms. Lemyre’s neck
and arm worsened and interfered with her sleep. She described constant pain,
numbness, and tingling in her left arm shooting down from her neck. She said
her neck would freeze. In addition, the plaintiff’s leg and hip were
painful for a couple of months. She testified that her Crohn’s symptoms
continued as they had before the accident, meaning intermittently and including
bouts of sometimes severe abdominal pain, diarrhea, fatigue and loss of
appetite.

[18]        
Shortly after the accident, Ms. Lemyre’s family doctor referred her to
physiotherapy. She attended three sessions and after each session she developed
a severe headache. She advised her doctor and did not continue the treatment.

[19]        
The plaintiff said her neck and arm symptoms had not improved by the
middle of 2010, describing her neck as feeling really tight, much like a taut
elastic band. Her family doctor referred her to another general practitioner, a
Dr. Shaw, who specialized in treating pain. He provided her with injections
into her neck which she understood were intended to relieve pressure in the
area and increase movement. Ms. Lemyre found them helpful, but the improvement
lasted for only up to one week after each injection. She also received one Botox
injection from Dr. Shaw which relieved her neck symptoms until they returned
about one month later.

[20]        
By the beginning of 2012, the plaintiff’s neck, arm, and Crohn’s symptoms
remained the same. She described her neck pain as interfering with her ability
to manage her Crohn’s disease by reducing her appetite and preventing her from
eating frequent small meals as required. Later that same year, the plaintiff
travelled to England to visit her father who was very ill and then passed away.

[21]        
Ms. Lemyre testified that in early 2013 she was hospitalized for a
Crohn’s flare-up. She said she simply could not eat and the pain from her
Crohn’s was really bad. At the hospital she was treated with IV fluids and pain
medication. She testified that during that same time her neck, left arm, and
headache symptoms were unchanged.

[22]        
In 2014, the plaintiff began to try to complete her Grade 12. After
completing some course work she discontinued her studies. She could not
tolerate bending her neck, et cetera. In October 2014, she started a part-time
job as a receptionist that did not affect her disability benefits. She found
she was unable to do the work because of the pain in her neck.

[23]        
The plaintiff attended a pain clinic at the Jim Pattison Outpatient
Centre located in Surrey in or about 2014 for pain management further to a
referral made by her family doctor in 2012. She testified to receiving frequent
injections into her neck at the clinic that continued until 2015. Again, they
helped temporarily, but the symptoms later returned. She denied being offered
the services of various other health care professionals such as a
kinesiologist, a physiotherapist, a psychologist, or an occupational therapist
while attending the clinic. She testified to being willing to try additional
treatments for her injuries.

[24]        
Presently, the plaintiff has the same degree and frequency of pain in
her neck that continues to extend into her left shoulder and her left arm down
to her elbow. Though the tingling has gone away, she still experiences numbness.
Ms. Lemyre testified to the difficulties involved in coping with the
combination of her Crohn’s episodes and the accident symptoms. She has
struggled with housework and cooking. Certain tasks, including vacuuming, are
particularly painful. She needs help carrying a laundry basket and lifting
heavy pots. She used to cook every day and now estimates that she may cook once
a week. While she used to clean the house every day, she now sometimes goes for
a week without doing so which she finds upsetting. Since the accident, the
plaintiff has stopped driving.

[25]        
As mentioned, in addition to her own testimony the plaintiff relied on
the evidence of her adult children and her close friend, Linda Baker, who is
now also a family member by virtue of the marriage between her daughter and Ms.
Lemyre’s son, Tyler. Their evidence regarding the state of the plaintiff’s
health and functioning before and after the accident is entirely consistent
with that of the plaintiff.

[26]        
All three testified that Ms. Lemyre was a high energy person prior to
the accident except when experiencing acute Crohn’s symptoms. She was a very
engaged and devoted parent who enjoyed being involved and active with her children.
Each testified to her meticulous housekeeping and the time and care she spent
doing housework. Tyler described his mother as a clean freak. Both Jennifer and
Tyler gave evidence that they had very little responsibility around the house
before the accident. Jennifer testified that her mother seemed to like doing
everything for them. Tyler also recalled his mother helping out and being very
involved in caring for other children in the extended family while they lived
in England. Tyler confirmed his mother had a rough time for a couple of months
after her bowel surgery in 2009, but after that she seemed back to her normal
active self. He said he bought her a dog and she took the dog to the park all
the time.

[27]        
None of the three witnesses remembered the plaintiff ever complaining of
neck pain before the accident or in relation to the fall she had in England. Tyler
and Jennifer could not recollect her wearing a neck brace after that fall. Tyler
testified he actually overheard his mother’s fall in the bathtub because his
bedroom was close by. He did not remember her saying she was injured in any way.

[28]        
Tyler testified that after the accident his mother did complain to him
of headaches. He described her as really sore. She would ask him to apply cream
to her neck to ease the pain.

[29]        
Jennifer testified that Ms. Lemyre was very stiff and sore in the two
days following the accident. She remained at Mr. Safronick’s home and lay in
bed unable to do much of anything. Jennifer could see the pain in her mother’s
facial expression. After that, Jennifer saw her mother on weekends and
described her as stressed out and annoyed because of the pain. In June 2010,
Jennifer moved back in with her mother and testified that her mother still
seemed stressed and in pain. No longer able to walk her dog, Ms. Lemyre would
just let him outside instead.

[30]        
Over the years Jennifer has moved out in and out of her mother’s home
several times. They have seen each other regularly when not living together. Jennifer
has not noticed any improvement in her mother’s condition.

[31]        
Tyler remained at home until on or about 2011 and since then he has
continued to see his mother every couple of weeks on the weekends. She
sometimes stays at his home for the weekend.

[32]        
Both Jennifer and Tyler described Ms. Lemyre’s need for assistance with
housework and cooking after the accident. She was not able to lift anything
much including pots, laundry baskets, et cetera. She found vacuuming extremely
painful. Tyler testified to buying his mother a dishwasher because he hated
doing dishes himself and she needed the help.

[33]        
Ms. Smith and the plaintiff have been friends for 20 years. They spent
time together regularly as their children were growing up. The friendship was
interrupted for about two years from sometime before the accident until
approximately 18 months after it occurred. Before she learned about the
accident, Ms. Smith could see that the plaintiff seemed different. She moved
more slowly and seemed to be in pain. Since then, Ms. Smith has not observed
any improvement in Ms. Lemyre’s condition. She testified that Ms. Lemyre holds
her neck a lot and suffers from bad headaches. Last summer, Ms. Lemyre stayed
with Ms. Smith for three to five weeks. In the past, Ms. Lemyre had been very
helpful when visiting. This time, however, she spent most of her time lying
down and was unable to do much of anything.

[34]        
A few years ago, Tyler married Ms. Baker’s daughter and they now have a
two-year-old daughter. Tyler described a very close relationship between his
mother and his daughter, as did Ms. Baker. Both Tyler and Ms. Smith have
observed Ms. Lemyre having difficulty picking up the child or if she does,
being very sore the next day.

The Medical Evidence

[35]        
Each of the expert reports, in addition to containing the physician’s opinions,
also summarize the plaintiff’s history as related by her at particular points
in time. With one exception, the plaintiff confirmed the accuracy of the
reports with respect to the information she provide to the various physicians.

Dr. Warshawski

[36]        
Dr. Warshawski has been the plaintiff’s family doctor since 1991
excepting the years spent in England. She prepared a medical/legal report dated
August 16, 2013. In that report, Dr. Warshawski described some visits that
occurred prior to the accident during which the plaintiff is said to have
complained of neck pain. According to Dr. Warshawski, the plaintiff saw
her for neck pain on two occasions in 2009. The doctor writes on August 12,
2009 the plaintiff was complaining of neck pain since the fall in England in
2008 for which she had cortisone injections and used a neck brace. On January
12th, 2010, the plaintiff again complained of intermittent neck pain,
apparently stating she could wake up with it and it could last all week.

[37]        
In direct examination, the plaintiff could not recall seeing Dr.
Warshawski for neck symptoms prior to the accident. In cross-examination, she
went further and denied experiencing or complaining to Dr. Warshawski of neck
pain in relation to the fall. Further, Ms. Lemyre testified to meeting with the
doctor to discuss her concerns about this aspect of her report. Dr. Warshawski
had no recollection of any discussion with the plaintiff about this issue.

[38]        
The plaintiff’s first visit to Dr. Warshawski after the accident was
January 23, 2010. The doctor found decreased range of motion in the plaintiff’s
neck in all directions, tenderness over her mid cervical spine, her left para
cervical muscles and her left upper trapezius muscles. The doctor ordered an
x-ray of the plaintiff’s cervical spine that was reportedly normal. In addition
to referring her to physiotherapy, the doctor re-prescribed Tylenol 3 which the
plaintiff was already taking for Crohn’s disease. Dr. Warshawski subsequently
referred the plaintiff for an MRI and to a neurologist. In February 2010, Dr.
Warshawski prescribed amitriptyline and gave her a sample of Lyrica in response
to the plaintiff’s complaints constant headache and neck and scalp pain. In
June 2010, Dr. Warshawski asked the plaintiff to re-try physiotherapy. She referred
to the plaintiff to a neurosurgeon and a second neurologist as well as
Dr. Shaw.

[39]        
Dr. Warshawski’s report indicates the plaintiff continued to see her
regularly and reported ongoing pain and, to a lesser extent, headaches up to
the date of her report. On some occasions she also visited Dr. Warshawski in
relation to symptoms of Crohn’s. In or about 2012, Dr. Warshawski prescribed
the plaintiff Valium for anxiety and as a muscle relaxant in addition to
Percocet for severe pain. In Dr. Warshawski’s opinion, Ms. Lemyre suffered soft
tissue injuries to her neck in the accident. Dr. Warshawski’s report provides
that while the plaintiff had some pre-existing neck pain, her symptoms became a
lot worse due to the accident and have remained so.

[40]        
In a supplemental report, Dr. Warshawski recommended further Botox
injections and, if those reduced her level of pain, an exercise program
designed by a physiotherapist. Dr. Warshawski expected the plaintiff would
require pain medication and Valium in the future for pain and spasms and for
Crohn’s.

Dr. Prest

[41]        
Dr. Prest has been the plaintiff’s treating gastroenterologist on and
off since 1988. She prepared a medical/legal report dated June 20, 2014 which
outlines the history of treatment for Ms. Lemyre’s Crohn’s disease and
symptomology.

[42]        
Dr. Prest described the plaintiff as suffering from significant Crohn’s
disease which in the past was treated with steroid medication. Dr. Prest
testified to the limited benefits of such treatment. In the late 1990s, the
plaintiff’s symptoms were treated with an anti-inflammatory. She again took
steroids while in England. Following her surgery in 2009, the plaintiff elected
not to take biologic medication because of possible side effects. For the most
part, the plaintiff has relied on Tylenol 3 to manage the pain caused by her
Crohn’s.

[43]        
Dr. Prest opined that since prior to the accident the plaintiff has
experienced "almost an ongoing chronic abdominal pain. Her bowel pattern
fluctuates as do her eating patterns and weight". She noted at times the
plaintiff had suffered from significant weight loss. Dr. Prest offered no clear
opinion about the accident’s effects on the plaintiff’s Crohn’s disease.

Dr. Adrian

[44]        
Dr. Adrian is a specialist in physical medicine and rehabilitation. His
report dated November 28, 2011 indicates Ms. Lemyre reported to him daily pain
that spread from her neck to her left outer shoulder to the level of her elbow
since the accident that was physically limiting. She also reported experiencing
some numbness and tingling from the back of her forearm into the thumb, index
and longer fingers. She complained of headaches triggered by neck pain every
few days over the left neck area which spread to the left side of her head. During
headaches, she was nauseous and occasionally vomited. Ms. Lemyre described
pre-accident headaches as migraines over the forehead triggered by
psychological stress and not neck pain.

[45]        
Upon examination, Dr. Adrian found a limited range of motion in the
plaintiff’s left shoulder. She reported tenderness over the base of her neck
and minor tenderness over the outer aspect of her shoulder. His diagnoses were
chronic mechanical neck pain stemming from the musculoskeletal structure of the
cervical spine and left arm/shoulder pain. With respect to the pre-accident
neck pain symptoms described in the medical records, he wrote that Ms. Lemyre
indicated those symptoms were not physically limiting. Dr. Adrian concluded it
is unlikely they would have become so but for the accident. His opinion was
that her neck was probably vulnerable to injury. Regarding her left shoulder
and arm symptoms he found they were likely referred pain from her neck and
probably due to a mild left rotator cuff tendinopathy. He found were no clear
neurological deficits during his clinical examination of the plaintiff.

[46]        
Dr. Adrian concluded Ms. Lemyre’s current headaches were caused by the
accident.

[47]        
He found the prognosis for further recovery of her injuries was poor,
given the lapse of 20 months since the accident. Given the negative impact of
those injuries on Ms. Lemyre emotionally and on her activity level, and her
need for narcotic medication to control her pain, Dr. Adrian opined that she
may benefit from participation in a multi-disciplinary chronic pain and
rehabilitation program.

Dr. John Arthur

[48]        
The defendant relies upon the expert report of Dr. John Arthur dated
June 5, 2014. Dr. Arthur is an orthopaedic surgeon. He found limited range of
motion in the plaintiff’s neck. He too noted a history of neck complaints prior
to the accident based in part on the clinical records of Dr. Warshawski. Ms.
Lemyre complained to Dr. Arthur of constant neck pain radiating into the
left shoulder and arm and ongoing headaches, the worst of which lasted four to
five days and occurred about twice per month. She described an earlier problem
of tingling in her index, ring and middle fingers on her left hand as improved.
In addition, she advised that for over a year she had experienced discomfort in
her lower back that occasionally troubled her at nighttime.

[49]        
Dr. Arthur concluded that the plaintiff’s complaints were related to the
accident, describing them as soft tissue injuries with some degree of radicular
component but no objective neurological findings. Dr. Arthur also concluded the
plaintiff has greater difficulty with household activities due to the accident.
He recommended she participate in an active rehabilitation program once her
headaches were under control. He also regarded facet blocks as appropriate. He
agreed with Dr. Adrian’s recommendation that the plaintiff participate in a
chronic pain and rehabilitation program that includes a multi-disciplinary team.
With recommended treatment, Dr. Arthur stated he would hope for improvement in
the plaintiff’s condition. Finally, he offered the opinion that the plaintiff
has not been "maximally treated".

Causation

[50]        
Turning to the issue of causation.

[51]        
The burden is on the plaintiff to prove causation. She must establish
the defendant’s negligence caused both her injuries and the resulting losses. The
former is concerned with establishing the existence of liability, the latter
with the extent of that liability (Blackwater v. Plint, 2001 BCSC 997 at
para. 364 [Blackwater]).

[52]        
The general test used to determine causation is the "but for"
test. Accordingly, the plaintiff bears the onus of proving on a balance of
probabilities that but for the defendant’s negligence her injuries would not
have occurred (.Athey v. Leonati, [1996] 3 S.C.R.; 458 [Athey]; Blackwater;
Clements v. Clements, 2012 SCC 32 [Clements]). The test for
causation is not to be applied too rigidly and is to be contrasted with the
more exacting standard that approaches scientific certainty in the medical
context (Snell v. Farrell, [1990] 2 S.C.R. 311 at 328).It is essentially
a practical question of fact which can best be answered by ordinary common
sense (Athey  at paras. 13-17; see also Farrant v. Laktin, 2011
BCCA 336 and Midgley v. Nguyen, 2013 BCSC 693 at para. 172).

[53]        
The plaintiff is not required to show the defendant’s negligence is the
sole cause of her injuries. So long as there is a substantial connection
between the harm she has suffered and the defendant’s negligence beyond the de
minimis range, the defendant will be liable. In other words, as long as the
defendant’s negligence is part of cause of the injuries, she is liable, even if
her negligence alone was not enough (Athey at para. 15).

[54]        
There is no apportionment between tortious causes and non-tortious
causes of an injury. The law does not excuse defendants from liability merely
because other causal factors for which they are not responsible also helped to
produce the harm (Athey at para. 19).

Credibility

[55]        
The Court may believe all, none, or some of a witness’ evidence. In cases
involving subjective complaints of pain, it is particularly important to
exercise caution and examine the plaintiff’s evidence carefully (Price v.
Kostryba (1982), 70 B.C.L.R. 397 (S.C.)).If her account is not convincing,
the hypothesis upon which the medical evidence rests is undermined.

[56]        
The factors to be considered when assessing credibility and reliability
of evidence were summarized in Bradshaw v. Stenner, 2010 BCSC 1398 at
para. 186. They include the firmness of the witness’ memory, the ability of a
witness to resist the influence of interest in modifying her recollections,
whether the witness’ evidence harmonizes with independent evidence that has
been accepted, whether the witness changes her evidence during direct and
cross-examination or is otherwise inconsistent in her recollections, whether
the witness’ evidence seems generally unreasonable, impossible, or unlikely, whether
the witness has a motive to lie, and the witness’ demeanour generally. Fundamentally,
the question is whether the witness’ evidence is consistent with the
probabilities affecting the case as a whole.

[57]        
The defendant here took no real issue with the plaintiff’s credibility
but did urge the Court to find that the plaintiff was experiencing neck pain
immediately prior to the accident, despite her inability to recall and/or her
denial of ever having complained of those symptoms to her family doctor.

[58]        
I note it was not suggested to Dr. Warshawski that the descriptions of
the plaintiff’s complaints of neck pain prior to the accident were inaccurate. This
however was the thrust of the plaintiff’s own evidence. In cross-examination,
the plaintiff was asked about the three pre-accident visits reviewed above. The
plaintiff said she had migraine headaches but not neck pain in 2009 and early
2010. The evidence of her children and Ms. Smith was that they had no awareness
of her suffering from neck pain before the accident. As I have said, they
denied any knowledge of her wearing a neck brace after her fall in England as
described by Dr. Warshawski.

[59]        
Apart from the conflict between the report of Dr. Warshawski and the
testimony of the plaintiff and the lay witnesses on this specific point, the
evidence as a whole is remarkably consistent.

[60]        
In general, I found the plaintiff to be a credible witness. She provided
direct, somewhat circumscribed answers to the questions she was asked. There
was very little if any change in her evidence between direct and
cross-examination, and no hint of exaggeration when describing the nature and
extent of her injuries.

[61]        
In denying any pre-accident neck pain, the plaintiff was believable and
not defensive. Ms. Lemyre’s evidence regarding her pre- and post-accident
functioning was confirmed by that of her children and Ms. Smith. They too
struck me as credible witnesses who tried their very best to provide accurate
testimony. Tyler readily acknowledged a problem with dates and timeframes. Otherwise,
I regard each as providing reliable evidence.

[62]        
It is difficult to understand, however, how Dr. Warshawski’s records for
three pre-accident visits could be as inaccurate as the plaintiff suggests. I
find it simply improbable that Dr. Warshawski could have on three occasions in
2009 and early 2010 recorded the plaintiff reporting neck pain entirely in
error.

[63]        
Given my impression the plaintiff was being truthful when she denied
reporting neck pain to Dr. Warshawski and given that it was not something she
discussed with her friends and family, I conclude that the neck pain she
experienced before the accident was not significant. There was no suggestion
that it interfered with her level of functioning. I am also satisfied that the
references to the neck brace and cortisone shots in Dr. Warshawski’s report are
likely not correct, given the combined evidence of the expert witness and the
three lay witnesses on this point and a reference to the plaintiff using
steroid medication for Crohn’s as opposed to a neck injury while in England.

Findings of Fact

[64]        
Based on the plaintiff’s testimony and the expert evidence, I have no
hesitation in finding that as a result of the accident Ms. Lemyre has suffered
significant soft tissue injuries that have caused significant if not severe and
almost constant neck pain which radiates to her left arm, as well as frequent
headaches that are different from those she suffered before the accident. In
other words, I find that but for the accident, she would not have suffered from
the neck and arm pain she has experienced since the accident, nor the frequent
headaches. Symptoms of tingling and numbness that extended from her left arm
into her left hand were also caused by the accident but have lessened.

[65]        
There appears to be no dispute that she also suffered for a period of
some months from pain in her hip and leg.

[66]        
Based on the opinions of Dr. Adrian, Dr. Warshawski, and the
plaintiff’s own evidence regarding her ongoing accident-related symptoms, I
find it unlikely the plaintiff’s condition will substantially improve.

Damages

[67]        
Turning to the question of damages.

[68]        
The essential purpose of damages is to restore as best as possible with
a monetary award an injured plaintiff to her original position, that is, the
same position she would have been in had the negligence not occurred (See: Athey
from paras. 31 – 36).

[69]        
A fundamental principle in the assessment of damages is that the
defendant must take the plaintiff as she finds her. A plaintiff whose
pre-existing physical condition makes her more vulnerable to sustaining injury
is to be compensated for the entire extent of her injury caused by the
defendant’s negligence. It is no answer for a defendant to say that the
plaintiff would have suffered less injury or a different kind of injury or no
injury at all if she had been less susceptible or vulnerable.

[70]        
At the same time, the defendant is not required to put the plaintiff in
a better position than she would have been in but for the accident and
compensate the plaintiff for the effects of a pre-existing condition which the
plaintiff would have experienced anyway.

Impact of Pre-existing Neck Symptoms

[71]        
Where there is a measurable risk that a pre-existing condition would
have resulted in a loss to the plaintiff in the future without the defendant’s
negligence, then that risk of loss must be taken into account in assessing
certain heads of damages and serves to reduce the award (Athey at para.
35)

[72]        
As explained in TWNA v. Canada, 2003 BCCA 670 at para. 48, a
measurable risk need not be proved on a balance of probabilities:

Whether manifest or not, a
weakness inherent in a plaintiff that might realistically cause or contribute
to the loss claimed regardless of the tort is relevant to be settled in the
damages. It is a contingency that should be accounted for in the award. Moreover,
such contingency does not have to be proven to a certainty. Rather, it should
be given weight according to its relative likelihood.

Non Pecuniary Damages

[73]        
The principal claim advanced by Ms. Lemyre is for non-pecuniary damages
which are awarded to compensate a plaintiff for her pain, suffering, loss of
enjoyment of life, and loss of amenities caused by the defendant’s negligence. The
jurisprudence provides that the award should be fair and reasonable to both
parties. Fairness is measured against awards made in comparable cases which may
provide a rough guide because each case calls for individualized assessment and
must be decided on its own unique facts: Trites v. Penner, 2010 BCSC 882
at para. 188; see also Stapley v. Hejslet, 2006 BCCA 34.

[74]        
The defendant argues the size of the plaintiff’s award for non-pecuniary
damages must take into account her history of pre-existing neck pain. She takes
the position there is no reason to believe the plaintiff would have been free
of neck pain absent the accident, either now or in the future. Based on the
opinion of Dr. Adrian, the defendant also submits the plaintiff’s
pre-accident neck pain was a chronic condition, since she was reporting
symptoms for two years before the accident. Ultimately the defendant suggests,
the plaintiff sustained soft tissue injuries that resolved soon after the
accident and any continuing problems are related to her pre-existing condition.

[75]        
The difficulty with the defendant’s position is that it is simply not
supported by the medical evidence reviewed above. While Dr. Adrian found the
plaintiff was vulnerable to neck pain and headaches based on her pre-accident
symptoms, there is no suggestion in any of the expert reports that Ms. Lemyre
would have experienced the ongoing and current symptoms of neck and arm pain or
headaches without the accident.

[76]        
In fact, Dr. Adrian’s opinion, which I accept, is that it is unlikely
the plaintiff’s pre-accident neck symptoms would have become physically limiting
but for the accident. Nowhere in the evidence is it suggested the plaintiff’s
functioning or lifestyle was impaired by neck pain prior to the accident, nor
that it was ongoing, constant or significant. While the plaintiff reported
intermittent neck pain just a few days before the accident, it was one of two
issues discussed that day. No objective findings were noted. In contrast, at
the first appointment following the accident, the family doctor examined the
plaintiff’s neck and found decreased range of motion in all directions and
paresthesia in her left arm. At the next appointment in early February 2010,
the doctor was concerned enough about the intensity of the plaintiff’s neck
pain to order a private MRI.

[77]        
I am mindful that the defendant need not establish a measurable risk
that a pre-existing condition would have resulted in a loss to the plaintiff in
the future without the defendant’s negligence on the balance of probabilities. It
is a contingency that should be given weight according to its relative
likelihood. Despite this low threshold, it is my view the evidence here does
not support the conclusion there was a measurable risk the plaintiff’s
pre-existing neck pain would have caused or contributed to the loss claimed by
the plaintiff regardless of the accident. Accordingly, I conclude that a
reduction in her award is not appropriate.

[78]        
The plaintiff seeks $120,000 in non-pecuniary damages and relies upon
the following cases:

a)    Agar v.
Morgan, 2003 BCSC 630, varied 2003 BCCA 579;

b)    Morgan v.
Scott, 2012 BCSC 1237;

c)     Adkin
v. Grant, 2014 BCSC 1304;

d)    Garcha v.
Duenas, 2011 BCSC 365;

e)    Pisani v.
Pearce, 2012 BCSC 1118.

[79]        
The defendant regards an award of $30,000 to $35,000 is appropriate and
relies on the following authorities:

a)    Millar v.
Hennan, [1994] B.C.J. No. 547 (S.C.);

b)    Leenstra v.
Miller, [1990] B.C.J. No. 1424 (S.C.);

c)     Glesby
v. MacMillian, 2014 BCSC 334;

d)    Johal v. Conron,
2013 BCSC 1924;

e)    Moini-Shirazi
v. Sun, 2010 BCSC 2021.

[80]        
Few of the above listed cases involve facts similar enough to those here
to be of much assistance to the Court.

[81]        
In my view, both Agar and Morgan are distinguishable,
insofar as they involve plaintiffs who suffer from more disabling pre-existing
conditions that were significantly worsened by the accident in the case of Morgan,
and accelerated in the case of Agar.

[82]        
The factual circumstances in Glesby are also distinguishable, but
perhaps the most similar among the cases relied upon by the defendant. The
plaintiff in that case was much younger and suffered to a far lesser extent than
Ms. Lemyre from Irritable Bowel Syndrome. Following the accident, the plaintiff
was able to complete graduate studies and achieve high grades. In addition, the
Court did not accept that she suffered from constant pain and found aspects of
her evidence to be exaggerated or untrue, prior to awarding her $60,000 in
non-pecuniary damages.

[83]        
Similarly, in Johal the plaintiff suffered from several
pre-existing conditions that caused daily pain that affected all aspects of her
life. As a result, she was unable to work and received disability benefits. The
accident was found to have caused mild to moderate soft tissue injuries to her
neck and back which aggravated her pre-existing conditions and caused new
symptoms of pain. Taking into account her pre-existing conditions, which would
have impacted her in the future regardless of the accident, the Court awarded
the plaintiff $35,000. I have not made such a finding in this case.

[84]        
Stapley v. Hejslet, supra, sets out at para. 46 a non-exhaustive
list of factors to be considered when assessing non-pecuniary damages. They
include the plaintiff’s age, the nature of the injury, the severity and
duration of the pain, disability, emotional suffering, loss or impairment of
life, impairment of family, marital and social relationships, impairment of
physical and mental abilities, loss of lifestyle, and the plaintiff’s stoicism (which
generally speaking should not be penalized). Many of these factors are at play
in this case.

[85]        
I note that Ms. Lemyre’s claim for non-pecuniary damages includes an
award for the impact of her injuries on her performance of household duties. She
has not pursued a loss of capacity claim for the same.

[86]        
The plaintiff has now suffered from near constant pain in her neck and
left arm as well as frequent headaches for approximately five years. Prior to
the accident, the plaintiff was an active, engaged person in between the
episodes caused by her Crohn’s disease. When she was well, she enjoyed walking
and caring for her home, both inside and out, and cooking. She enjoyed her life
which included time with her children and friends and was able to function
well.

[87]        
Since the accident, the plaintiff no longer walks for exercise. She
struggles to perform housework which causes her considerable pain and
discomfort. She no longer cooks every day and instead prepares meals about once
a week. Although the plaintiff herself denied suffering from depression after
the accident, her daughter has observed significant changes in the plaintiff’s
emotional state. At first she was stressed and now she is really
"short", not having been like that before the accident. She no longer
drives. She is unable to care for and play with her granddaughter as she once did
with her own children and others in her life.

[88]        
Given Ms. Lemyre’s ongoing symptoms and their impact on the enjoyment of
her life, I consider a reasonable award for non-pecuniary damages to be $75,000.

Cost of Future Care

[89]        
Turning to the cost of future care, Ms. Lemyre claims costs of $13,500
to attend a pain management program. Her estimate is based upon the cost of
attending a private multi-disciplinary program offered through an agency called
Orion Health located in Surrey, B.C. She is entitled to compensation for the
cost of future care based on what is reasonably necessary to restore her to her
pre-accident condition insofar as that is possible. When full restoration
cannot be achieved, the Court must strive to assure full compensation through
the provision of adequate care. The award is based on what is reasonably
necessary based on the medical evidence to preserve and promote the plaintiff’s
mental and physical health. The test for determining the appropriate award
under this heading is an objective one: Gignac v. Insurance Corporation of
British Columbia, 2012 BCCA 351 at paras. 29 – 30; Tsalamandris v.
McLeod, 2012 BCCA 239 at paras. 62 – 63.

[90]        
The defendant opposes the award sought by Ms. Lemyre. She argues there
is no medical evidence suggesting the plaintiff requires additional treatment
given that she already attended a pain clinic at the Jimmy Pattison Outpatient
Clinic in 2014 and early 2015. However, the only evidence about the treatment
provided by that pain clinic was that the plaintiff received repeated
injections in her neck and was not offered other services of the sort
contemplated by Dr. Adrian. His report provided that the goal of participating
in such a program would be to optimize the plaintiff’s level of fitness,
instruct her in pain management and coping strategies, review her narcotic
intake and assess the need for ergonomic modifications in her home that might
make certain household tasks less uncomfortable.

[91]        
Dr. Arthur agreed with Dr. Adrian’s recommendation in his much more
recent report and Dr. Warshawski made a similar recommendation. There is
absolutely no suggestion that any of the goals identified by Dr. Adrian were
addressed by the pain clinic the plaintiff has already attended. Although Dr.
Adrian uses the phrase "the plaintiff may benefit from participating"
given the whole of his recommendation, the opinion of Dr. Arthur and Dr.
Warshawski and the plaintiff’s current condition, I find the plaintiff has
established that attending a multi-disciplinary pain management program such as
the one offered by Orion Health is reasonably necessary to promote her physical
and mental health. I am also satisfied that Ms. Lemyre will attend such a
program if provided with an award for its cost. I therefore award her $13,500
for the cost of future care.

Special Damages

[92]        
Ms. Lemyre is entitled to recover the reasonable out-of-pocket expenses
she incurred as a result of the car accident for s special damages. She claims
$4,431.93.

[93]        
The defendant argues that some of the expenses she has included were not
medically recommended and therefore should not form part of an award for
special damages.

[94]        
Those expenses include a posture care mattress and a water pillow as well
as some topical ointments which the plaintiff hoped would help to reduce her
level of pain. In addition, the plaintiff includes $922.98 for Dr. Warshawski’s
billings for office visits related to the accident. The plaintiff submits those
billings were paid by her insurer but she is concerned that the same amount may
be deducted from her award for damages given that the defendant has provided no
assurances in this regard.

[95]        
Given that they are not out-of-pocket expenses, and it is uncertain
whether the mattress was recommended and the water pillow was not, I conclude
an award of $2,752.96 is reasonable.

[96]        
Those are my reasons.

[97]        
MS. MUNRO: And My Lady, that’s costs pursuant to Rule
15-1?

[98]        
THE COURT: Yes, though if the parties are not able to agree as to
costs, then they have leave to appear before me.

[99]        
MS. MUNRO: Thank you, My Lady.

“Fleming
J.”