IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150430

Docket: M141145

Registry:
New Westminster

Between:

Lorianne Elizabeth
Blackman

Plaintiff

And

Inderjeet Dha

Defendant

Before:
The Honourable Madam Justice Devlin

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Lorianne Elizabeth Blackman, claims damages for injuries she
sustained as a result of a motor vehicle accident on August 17, 2010. At the
time of the accident, Ms. Blackman was stopped at a red light on 56^th
Avenue in Surrey, British Columbia, waiting to turn left at the intersection of
152^nd Street, when her vehicle was struck from behind by the
defendant, Ms. Inderjeet Dha. This proceeding was brought under Rule 15-1
of the Supreme Court Civil Rules, B.C. Reg. 168/2009.

[2]            
Liability is not at issue in these proceedings. At issue are Ms. Blackman’s
claims for non-pecuniary damages, special damages and the cost of future care. Accordingly,
the Court must determine the nature and extent of the injuries suffered by Ms. Blackman
and the quantum of damages for those injuries.

THE FACTS

Prior to the Accident

[3]            
Ms. Blackman is a 37-year-old married mother of three children, ages
ten, eight and three. She was born on December 7, 1977 and married her husband,
Paul Blackman, on August 5, 2000.

[4]            
Ms. Blackman received a Bachelor of Arts in Music from Trinity
Western University in 2001 and a Bachelor of Education in Secondary Music from
the University of British Columbia in 2002. Ms. Blackman has been an
elementary school music teacher with the Surrey School District since 2002 and
currently splits her time working at Peace Arch Elementary and Bay Ridge
Elementary. As a music teacher, Ms. Blackman plays the piano and flute and
also sings with the students. Many of the songs are action songs which require
various movements. On occasion the students will use other instruments such as
drums, which requires Ms. Blackman to do some bending and lifting.

[5]            
Ms. Blackman was a healthy, happy and busy mother who worked full-time
and was active within her Church community. At the time of the accident she had
two children, with the third born in June 2011. Ms. Blackman enjoyed
spending time with her husband and children and engaged in various recreational
activities, including going swimming and to the local parks. Ms. Blackman
and her family would spend vacations with her parents in Vernon, B.C. Ms. Blackman
was also a member of her Church choir and volunteered at a fine arts program
offered through her Church.

[6]            
Ms. Blackman did the majority of the cooking and housework for her
family. At the time of the accident, Ms. Blackman was living in Coquitlam,
but her family moved to Langley, B.C. in June 2013.

THE ACCIDENT

[7]            
On August 17, 2010, Ms. Blackman was driving a 2002 Dodge Caravan
with her mother and two young children as passengers. As Ms. Blackman was
stopped for a red light on 56^th Avenue waiting to turn left at the
intersection of 152^nd Street in Surrey, she was struck from behind
by Ms. Dha, who was driving a 2006 Acura.

[8]            
Ms. Blackman testified she felt a hard impact when her vehicle was
hit and the car moved forward slightly, causing her to press firmly on the
brake. She said she felt discomfort in her neck within a few minutes of her
body being jolted forward. After she checked that her mother and children were
fine, she got out of the car and spoke to the other driver. They agreed to move
their cars out of the intersection into an adjacent parking lot to exchange
information. Following the accident, Ms. Blackman drove to meet the rest
of her family at a local restaurant. The cost of repair to her vehicle was
$1,017.25.

[9]            
Ms. Dha testified that her car was stopped behind Ms. Blackman’s
vehicle at the red light. She explained she had a cramp in her right foot and
as she moved to put her left foot on the brake her car rolled forward into the
back of the van driven by Ms. Blackman. In cross-examination, Ms. Dha
denied that she put her foot on the gas. She explained how 56^th
Avenue is situated slightly downhill and that was the reason why her vehicle
rolled into the van. Ms. Dha’s vehicle had minor damage to the front
licence plate which was repaired for a minimal cost.

After the Accident

[10]        
Ms. Blackman testified that immediately after the accident she felt
discomfort in her neck. By the second day, she experienced discomfort in her
neck, shoulder, upper back and right wrist and forearm, together with a
headache.

[11]        
With respect to the pain in her right wrist and forearm, Ms. Blackman
testified that it was a sharp pain that made it difficult for her to play the
flute. The symptoms improved after a few weeks of physiotherapy and are
presently resolved.

[12]        
Ms. Blackman described her headaches as beginning with a pain on
the left side of her neck, which then radiates forward to behind her eyes. Immediately
following the accident, she suffered from daily headaches which usually started
in the mid-afternoon and would last the rest of the day. In addition to headaches,
she suffered from neck and upper back pain. The pain is focused on the left and
right side of her shoulders and the upper back area between her shoulder blades.

[13]        
Ms. Blackman testified that the discomfort and pain impacted on her
ability to fully function as a music teacher. She testified that playing the
piano for an extended period of time triggers her back pain, playing the flute
can trigger her neck pain and resulting headaches, as does lifting heavy
musical instruments. Ms. Blackman testified she continues to enjoy her
work as a music teacher and perseveres through the pain.

[14]        
On August 18, 2010, Ms. Blackman went to see Dr. Naiker, her
family doctor. Dr. Naiker recommended she apply heat and ice to the sore
areas and take Advil for the pain. At her second visit, Dr. Naiker
recommended Ms. Blackman attend physiotherapy if her symptoms continued.

[15]        
Ms. Blackman began physiotherapy and active rehabilitation
treatments about five weeks after the accident, beginning with two visits per
week. The physiotherapy session consisted of an electronic stimulation
procedure on her neck, shoulders and upper back and then the application of
heat to those areas. She was also given exercises to do at home. In addition to
these treatments, Ms. Blackman’s husband would do massage on her neck and
shoulders, which also alleviated some of her discomfort.

[16]        
The symptoms became less frequent as a result of the physiotherapy, but
pain and discomfort had not completely resolved. In August 2014, Ms. Blackman
switched family doctors and began seeing Dr. Windy Brown. Ms. Blackman
testified that Dr. Brown recommended further physiotherapy which she has
commenced and continues to benefit from. Ms. Blackman also testified that
she takes Advil about five times per month for the pain. In August 2014 she was
also prescribed migraine medication to alleviate some of the headache pain.

[17]        
Although Ms. Blackman is able to do the majority of the household
chores as well as cooking, she has to pace herself with the tasks she does do. She
testified that while she can do the vacuuming, she avoids doing so as it
particularly aggravates her condition. Ms. Blackman testified that she finds
it difficult being unable to do all the chores she used to be responsible for, and
feels that she is missing out on family activities. She explained that sometimes
her pain keeps her from going to the park or swimming with her children and she
will occasionally cancel or withdraw from family events.

[18]        
Ms. Blackman’s injuries have also had an impact on her personal
enjoyment of playing instruments, including piano, flute and various brass
instruments. She testified that she attended a Music Camp in the summer of 2013
but was only able to play for one hour a day due to the pain in her neck,
shoulders and upper back. Similarly, her participation with the Church choir
has also decreased, as she often misses practices due to her headaches and pain.
Ms. Blackman testified that she is disappointed that she cannot continue
with her community activities to the same degree as before the accident.

[19]        
In an effort to continue to be engaged in social activities, Ms. Blackman
joined her Church slow pitch baseball league in April 2012. She testified that
it felt good to be active in a social setting, but she would suffer from
headaches afterwards. When cross-examined about her ability to play baseball,
she explained that it was slow pitch lob ball so as the catcher she only had to
pick up the ball. The physical requirements were minimal.

[20]        
Ms. Blackman also testified that she has trouble sitting for long
periods of times in addition to when she plays the piano. She said that travel
to Vernon to visit family is difficult because she is sitting during the five
hour drive. She recently flew to Ontario for a family matter and experienced
headache, neck and upper back pain on both flights.

[21]        
On December 20, 2014, Ms. Blackman was examined by Dr. Waseem.
The appointment lasted a couple of hours and Dr. Waseem examined her neck,
upper back and shoulders. Ms. Blackman also discussed her headaches with Dr. Waseem.
Dr. Waseem recommended a series of injections in her spine and shoulder,
as well as certain trigger points for her headaches. The estimated cost of that
treatment is $1600 per session. To date, Ms. Blackman has not had the
injection treatment.

[22]        
Ms. Blackman was cross-examined about a five page form she filled
out when she met with Dr. Waseem. She explained that in the section under
Current Status she indicated “can do” to questions regarding various
housekeeping activities. When challenged on this evidence, Ms. Blackman
explained that it was true that she “can do” vacuuming but it aggravates her
symptoms.

[23]        
Ms. Blackman testified that discomfort refers to a feeling which is
always present but does not impact on her normal activities, as opposed to pain,
which is more noticeable and will stop her from engaging in her regular activities.
While she has had discomfort since the day of the accident, the pain fluctuates
in frequency.

[24]        
In cross-examination, it was suggested to Ms. Blackman that she had
infrequent visits with Dr. Naiker. She explained this was because she did
not feel it was necessary to keep going back to the doctor since her symptoms
were the same and she was following the doctor’s recommendations of continuing
with physiotherapy, taking Advil and doing exercises.

[25]        
On cross-examination, portions of the examination for discovery
transcript were put to Ms. Blackman regarding the frequency of her pain. Ms. Blackman
explained that when she agreed that by late 2011 she had a headache “maybe once
a week” she was simply acknowledging the average frequency. She explained that
sometimes the frequency increased, but at no time did the pain completely
resolve.

[26]        
Ms. Blackman was also cross-examined as to the impact that her
pregnancy had on her pain levels. She indicated that the pain did not increase
while she was pregnant and she rarely raised it with her obstetrician or Dr. Naiker
because she was continuing with the recommended treatment.

CIVILIAN WITNESSES

Winnifred Ann Blackman

[27]        
Mrs. Winnifred Ann Blackman is the mother-in-law of the plaintiff. She
is retired after working 26 years in various capacities with the Salvation Army.
She has known Ms. Blackman for over seventeen years and believes they have
a good relationship. She testified that she has noticed a change in her
daughter-in-law since the accident. She explained that her daughter-in-law is a
private person who does not tend to share how she is feeling. Mrs. Blackman
testified that her daughter-in-law used to be more carefree, but since the
accident Mrs. Blackman said that on occasion she can see that the
plaintiff is tired and can tell by the look on her face if she had a headache. Further,
she testified that sometimes the plaintiff was abrupt with her children and has
stayed home from various activities because of pain.

Paul Andrew Blackman

[28]        
Mr. Blackman has been married to Ms. Blackman for about
fifteen years and they have three children together, ages ten, eight and three.
They both work full time and enjoy spending time with their children and
immediate family. He testified that before the accident, Ms. Blackman was
a happy, patient and loving person who was always smiling. He testified that
she was involved in the Church choir, loved playing the flute and was a devoted
elementary school music teacher. They enjoyed a happy home life where she did
the majority of household chores, including the cooking and cleaning.

[29]        
After the accident, he said his wife’s behaviour changed considerably. He
testified that Ms. Blackman is less patient and more abrupt with their
children. While she still tries to go with them to the park or swimming, she
does not participate in any of the activities. She has also reduced the amount
of time she spends with her other family members. He testified that his wife
has been on his softball baseball team since 2012 but she will sometimes sit
out of a game if the pain is bad. Mr. Blackman also testified that the
nature of his intimate relationship with his wife has changed.

[30]        
In terms of the operation of the household, he testified that there has
been a dramatic change and he now does the majority of the household chores. As
a result, he has fallen behind and the house is in a state of disarray. He
testified that while Ms. Blackman still cooks, she no longer prepares home-cooked
meals and instead opts for quick, frozen foods.

[31]        
In cross-examination, Mr. Blackman explained that his wife does not
experience pain every day. Sometimes she can appear to be pain free with some
discomfort, while other days the pain returns.

EXPERT EVIDENCE

Dr. Erushka Naiker

[32]        
Dr. Naiker is a family practitioner who was called as an expert in
family medicine by Ms. Blackman. Dr. Naiker was her family doctor at
the time of the accident. Dr. Naiker’s clinical records were admitted into
evidence, together with her medical legal report.

[33]        
Dr. Naiker saw Ms. Blackman on three occasions in 2010. The
first appointment was on August 18, 2010, the day following the accident. Ms. Blackman
told Dr. Naiker that she had been in an accident and that she had
intermittent headaches, which had resolved by the time of the visit. She also
complained of persistent neck stiffness and some pain in her wrists.

[34]        
At the next appointment on September 13, 2010, Ms. Blackman told Dr. Naiker
that she was still having some mild, intermittent headaches and some neck and
shoulder pain. Then again, on November 9, 2010, Ms. Blackman told Dr. Naiker
that she experienced neck pain when turning to either the left or right side,
but there were no associated headaches.

[35]        
Dr. Naiker testified that from these three examinations of Ms. Blackman,
she found that there was normal range of motion of her shoulder and cervical
spine. On one occasion, she noted bilateral trapezius tenderness.

[36]        
Dr. Naiker next saw Ms. Blackman on October 24, 2011, at which
time she advised she was experiencing pain and stiffness to the left side of
her neck that was intermittent and aggravated by prolonged sitting. Ms. Blackman
advised that the pain was alleviated by stretching and applying hot compressors.
She also reported headaches on average of once per week. Dr. Naiker noted
that Ms. Blackman was able to do all activities, although sometimes these
were followed by pain. Upon physical examination, Dr. Naiker noted
bilateral trapezius tenderness.

[37]        
On July 31, 2013, Ms. Blackman returned to see Dr. Naiker and
reported experiencing chronic intermittent neck pain which she said caused a
flare up of her headaches. Ms. Blackman stated the pain was relieved by
massage and applying heat. Dr. Naiker noted the pain was not affecting her
function or ability to work. The physical exam revealed a normal range of movement
of the shoulder and cervical spine but left sided trapezius muscle tenderness. Dr. Naiker
recommended that Ms. Blackman continue with massage therapy, stretching,
hot/cold compressors treatment, Tylenol and non-steroid anti-inflammatory drugs.
She also recommended physiotherapy and a good exercise program.

[38]        
On October 8, 2013, Ms. Blackman reported to Dr. Naiker that
she had still been experiencing chronic intermittent neck pain which in turn
aggravated her headaches. However, she reported that the headaches were
occurring less frequently and were mild in nature. Further, the pain in her
neck did sometimes radiate to her left shoulder but there were no known
aggravating factors.

[39]        
Dr. Naiker’s diagnosis was myofascial-like symptoms or whiplash
symptoms which were persistent. These symptoms included intermittent trapezius
muscular strain and cervicogenic headaches. In terms of a prognosis, Dr. Naiker
said because the symptoms did not alleviate within six months of the accident,
she is of the view that Ms. Blackman has chronic pain syndrome. Dr. Naiker
recommended that she continue with regular activities and stretching, and take
anti-inflammatories and muscle relaxants alongside massage therapy and
physiotherapy on an as-needed basis.

[40]        
On cross-examination, Dr. Naiker agreed that Ms. Blackman’s symptoms
can be described as mild. She also clarified that Ms. Blackman has chronic
pain as opposed to chronic pain syndrome. She agreed that chronic pain refers
to situations where a person has pain that has not resolved within six months,
whereas chronic pain syndrome refers to a situation where a person experiences
daily pain which impacts on the person’s mood and ability to function.

[41]        
Dr. Naiker was cross-examined extensively regarding her treatment
of Ms. Blackman during her pregnancy and the content of her clinical
records. Dr. Naiker explained that during the pre-natal examinations the
time is limited and her focus was on conducting a complete examination of her
pregnant patient. Since the focus of the examination was on pre-natal symptoms,
the clinical records contain information different than one might see in a
typical post-accident visit. Dr. Naiker also explained that the
computerized clinical reports were generated in a standard format with a variety
of fields that might not be relevant to that particular examination.

[42]        
Dr. Naiker agreed that Ms. Blackman has a soft-tissue injury
with mild, intermittent pain which is manageable. Dr. Naiker also stated
that since Ms. Blackman had muscle pain, it was not necessary to conduct
an X-ray. When asked about the need for continued physiotherapy sessions, Dr. Naiker
agreed that most patients should be able to do exercises on their own after a
few sessions but that, for some patients, further physiotherapy sessions can be
of some assistance in dealing with the pain.

Dr. Zeeshan Waseem

[43]        
Dr. Waseem is a physiatrist who was called as an expert by Ms. Blackman.
Dr. Waseem provided an expert medical opinion regarding the extent of the injuries
or impairments sustained by Ms. Blackman in relation to the accident. Dr. Waseem
based his opinion on a single assessment of Ms. Blackman, which took place
on December 20, 2014 and lasted 90 minutes. In addition, Dr. Waseem also
reviewed the clinical records of Dr. Naiker and CBI Physiotherapy.

[44]        
In order to determine if Ms. Blackman’s functional status had
changed post-accident, Dr. Waseem had her complete a questionnaire
regarding activities of daily living, which included questions regarding her
ability to perform housekeeping activities both pre and post-accident. She
reported that she could do all the same activities post-accident, although she
explained that she had to pace herself while doing chores and would avoid
vacuuming. Dr. Waseem also had Ms. Blackman indicate on a pain
drawing the areas of concern. She indicated that the upper back and shoulder
blade area were aching. However, in the pain diagram incorporated into his
opinion, Dr. Waseem added the aching symbols in the head area to reflect
her reported headaches.

[45]        
Dr. Waseem performed a detailed physical examination on Ms. Blackman.
Dr. Waseem testified that neck pain was reported with tilting her head
forward and she was tender to palpation in the scapular thoracic junction
bilaterally, which is the shoulder blade area. Upon performing shoulder
abduction in the physical examination, Ms. Blackman felt pain at the
intersection between the shoulder blade and the upper back. He testified that Ms. Blackman
did not give any signals of pain behavior, which suggested, in his opinion,
that she was not magnifying her complaints. Rather, Dr. Waseem testified
that he observed objective signs, such as tightness of her neck muscles, that
indicated Ms. Blackman was suffering from pain in her neck that originated
from her muscles.

[46]        
Dr. Waseem opined Ms. Blackman’s prognosis is poor for a full
recovery and that her injuries are considered permanent. Dr. Waseem
concludes in his report the injuries she sustained are as follows:

Chronic Cervical Spine Sprain/ Strain

The distribution of her symptoms involving
the paraspinals and trapezii muscles are characteristic of chronic myofascial
pain. Objective spasms were noted in these areas on today’s assessment and her
neck musculature was tender and tight to palpation suggesting that it is a
major pain originator. She also had postural abnormalities of the cervical
spine – her neck was forward and anterior. Maintaining such a neck posture
exerts greater strain and tension of the neck trapezii muscles.

Chronic Mechanical Neck Pain, Possible
Discogenic Neck Pain

Ms. Blackman’s neck pain is also
provoked with movement, specifically repetitive and prolonged neck flexion.
Provocation of neck pain specifically in this direction usually suggests
disc-mediated pain that is termed “discogenic”. Further diagnostic evaluation
and obtaining results of Ms. Blackman’s recent cervical spine X-Rays would
be useful in this regard.

Chronic Shoulder Interscapular Muscle
Strain with Possible Scapulothoracic Bursitis

On examination, Ms. Blackman’s shoulders
were internally rotated and she reported pain to palpation of the
scapula-thoracic junction and the rhomboid muscles suggestive of ongoing
chronic myofascial pain. Although her scapular movements were normal, pain was
provoked with scapular protraction suggesting irritation of the scapulothoracic
bursa and myofascial pathology.

Chronic Post-Traumatic Headaches
Suggestive of Occipital Neuralgia

Ms. Blackman’s headaches originate at
the base of the skull in the region where the greater occipital nerve lies and
crosses the nuchal ridge. Her headaches radiate into the fronto-temporal areas.
This description fits with the classification of occipital neuralgia a
condition wherein there is entrapment or irritation of the fibers of the
greater occipital nerve.

[47]        
Given that Ms. Blackman’s impairments have not resolved
spontaneously and persist after four years, Dr. Waseem recommended a
variety of treatments, including cervical spine injections which might reduce
her neck pain. Additionally, he testified that trigger point injections
directed towards neck musculature and rhomboid muscles may be effective. He
also recommended that Ms. Blackman continue with neck stretches and deep
neck flexor strengthening exercises, as well as other exercises to address her
posture issues.

[48]        
On cross-examination, Dr. Waseem was asked about the
appropriateness of some of the factual assumptions set out in his report. Dr. Waseem
denied being an advocate for Ms. Blackman but did acknowledge that some of
his comments were based on his assumptions rather than actual facts provided by
her. Dr. Waseem agreed that stretching and strengthening in the neck and
shoulder areas is certainly one of the best ways to treat the recurring pain. Dr. Waseem
also agreed that postural correction exercise and scapular stabilising
exercises will also serve to lessen the pain. With respect to Ms. Blackman’s
posture, Dr. Waseem did agree that poor posture could cause some of the
symptoms that she displays, but that it is also possible that the poor posture
is a result of the pain Ms. Blackman experiences.

[49]        
Dr. Waseem also acknowledged that the term “chronic pain” refers to
the duration of pain and not to the severity of the pain. He clarified that a
person does not need to have ongoing pain on a daily basis to suffer from
chronic pain. Rather, intermittent pain which fluctuates in frequency is also
considered chronic pain.

CREDIBILITY AND RELIABILITY OF EVIDENCE

[50]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398; aff’d 2012 BCCA
296, as follows at para. 186:

Credibility involves an assessment of the trustworthiness of
a witness’ testimony based upon the veracity or sincerity of a witness and the
accuracy of the evidence that the witness provides (Raymond v. Bosanquet
(Township), (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of
assessment involves examination of various factors such as the ability and
opportunity to observe events, the firmness of his memory, the ability to
resist the influence of interest to modify his recollection, whether the
witness’ evidence harmonizes with independent evidence that has been accepted,
whether the witness changes his testimony during direct and cross-examination,
whether the witness’ testimony seems unreasonable, impossible, or unlikely,
whether a witness has a motive to lie, and the demeanour of a witness generally
(Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,
[1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3
S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence
depends on whether the evidence is consistent with the probabilities affecting
the case as a whole and shown to be in existence at the time (Faryna at para. 356).

[51]        
If the plaintiff’s account of his or her change in physical, mental
and/or emotional state as a result of the accident is not convincing, then the
hypothesis upon which any expert opinions rest will be undermined: Samuel v.
Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15 and 49-50.

[52]        
Counsel for Ms. Dha submits that Ms. Blackman’s evidence is
not consistent or reliable. Ms. Dha’s counsel cautioned me that Ms. Blackman’s
complaints about pain levels are not objectively measureable and therefore I
should be careful about accepting this evidence, absent some corroboration. In
support of the submissions respecting the findings I should make in relation to
Ms. Blackman’s credibility, counsel for Ms. Dha relies on the
cumulative impact of the following considerations:

(1)      Her
complaints are out of proportion with the minor nature of the accident;

(2)      while
she could provide testimony about specific events during examination in chief,
she was vague and evasive during cross-examination;

(3)      her
evidence at examination for discovery and at trial was contradictory; and

(4)      her
evidence was contrary to the evidence contained in the documentation.

[53]        
I found Ms. Blackman to be a genuine and honest witness who was
doing her best to provide detailed testimony. While she did not agree with
every proposition put to her in cross-examination, I do not consider her to
have been evasive or vague. Rather, I found her a calm and careful witness who
endeavoured to provide an accurate account of her experience. I do not find
that she exaggerated the nature and extent of her injuries, nor do I find a
significant inconsistency or contradiction between her evidence at trial and on
examination for discovery. As McEachern C.J.S.C. said in Diack v. Bardsley,
(1983) 46 B.C.L.R. 240 at para. 30:

I wish to say that I place absolutely no reliance upon the
minor variations between the defendant’s discovery and his evidence. Lawyers
tend to pounce upon these semantical differences but their usefulness is
limited

[54]        
Indeed, Ms. Blackman was careful to explain that the pain has
improved and although it does continue on an intermittent basis, the pain is
mild.

[55]        
Ms. Dha pointed to the gaps in Ms. Blackman’s medical
treatment to support the defendant’s position that Ms. Blackman had
recovered from any injury incurred as a result of the accident. In Roy v.
Storvick, 2013 BCSC 1198 [Roy], Madam Justice Gropper rejected a
similar theory. At para. 100, Gropper J. stated the following:

I disagree with the defence’s theory that the medical
treatment sought by the plaintiff demonstrates that Mr. Roy’s “problems
were not as bad as [he] would lead us to believe.” I expressed my view of this
theory in Myers v. Leng, 2006 BCSC 1582 at para. 50:

I am not troubled by the gap in the
plaintiff seeking treatment. His decision not to continue to see a doctor about
his neck and back complaints was clearly based on a reasonable conclusion that
the doctors could only provide temporary relief from the pain by prescribing
medication and physiotherapy. The plaintiff did not consider either to be
helpful. It is a sensible and practical approach to medical treatment. If
continuous medical treatment can cure you, or make you feel better, then it is
worthwhile to attend on a regular basis. If it cannot, there really is no point
in taking the doctor’s time. The purpose of a seeing a doctor is not to create
a chronicle of complaints for the purpose of proving that you have ongoing pain
from an injury arising from a motor-vehicle accident. Rather than detract from
the accuracy of the plaintiff’s complaint, I consider the plaintiff’s course of
conduct, in not seeing the doctor on a continuous basis, to enhance his
evidence.

[56]        
In Edmondson v. Payer, 2011 BCSC 118; aff’d 2012 BCCA 114 [Edmondson],
Mr. Justice N. Smith expressed a similar view at para. 37:

…There certainly may be cases where a plaintiff’s
description of his or her symptoms is clearly inconsistent with a failure to
seek medical attention, permitting the court to draw adverse conclusions about
the plaintiff’s credibility. But a plaintiff whose condition neither
deteriorates nor improves is not obliged to constantly bother busy doctors with
reports that nothing has changed, particularly if the plaintiff has no reason
to expect the doctors will be able to offer any new or different treatment.
Similarly, a plaintiff who seeks medical attention for unrelated conditions is
not obliged to recount the history of the accident and resulting injury to a
doctor who is not being asked to treat that injury and has no reason to be
interested in it.

[57]        
Accordingly, I disagree with Ms. Dha’s position that the medical
treatment Ms. Blackman sought was inconsistent with someone who
experienced mild, recurring pain, including neck pain and headaches. As noted
in Roy and Edmondson, Ms. Blackman’s infrequent visits to Dr. Naiker
do not lead me to doubt the veracity of her complaints, as Ms. Blackman
testified she did not think it necessary to return to the doctor given that her
symptoms remained the same and she was following the doctor’s recommendations. Similarly,
the fact that the notes of Ms. Blackman’s pre-natal visits to Dr. Naiker
do not include repeated references to the recurring pain does not advance the
defendant’s position. Dr. Naiker explained that when she was examining Ms. Blackman
during a pre-natal visit her focus was the pregnancy, and she would not have had
time to deal with other issues. I acknowledge that there may be cases where one’s
failure to seek medical attention will result in the court drawing an adverse
inference about their credibility. This is not one of those cases.

[58]        
As noted above, I do not believe that Ms. Blackman exaggerated the
nature or extent of the pain she has experienced since the accident. Ms. Blackman’s
husband corroborated her evidence, as did the medical evidence of Dr. Naiker
and Dr. Waseem. Thus, I accept Ms. Blackman’s testimony relating to
the nature and frequency of her pain.

CAUSATION

The Law

[59]        
The plaintiff must establish on a balance of probabilities that the
defendant’s negligence caused or materially contributed to an injury. The
defendant’s negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the range of de minimus. Causation need not
be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R.
458 [Athey] at paras. 13-17; Farrant v. Laktin, 2011
BCCA 336 at para. 8.

[60]        
In Mirsaeidi v. Coleman, 2014 BCSC 415, Harris J. further
outlines the principles of causation at para. 50:

The primary test for causation asks: but-for the defendant’s
negligence, would the plaintiff have suffered the injury? The “but-for” 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.

[61]        
In special circumstances, the “but-for” test proves unworkable, and the
law has applied the “material contribution” test. As Chief Justice McLachlin
wrote in Clements v. Clements, 2012 SCC 32 at para. 46:

…Exceptionally, a plaintiff may succeed by showing that the
defendant’s conduct materially contributed to risk of the plaintiff’s injury,
where (a) the plaintiff has established that her loss would not have occurred "but
for" the negligence of two or more tortfeasors, each possibly in fact
responsible for the loss; and (b) the plaintiff, through no fault of her own,
is unable to show that any one of the possible tortfeasors in fact was the
necessary or "but for" cause of her injury, because each can point to
one another as the possible "but for" cause of the injury, defeating
a finding of causation on a balance of probabilities against anyone.

[62]        
Causation must be established on a balance of probabilities before
damages are assessed. As McLachlin C.J.C. stated in Blackwater v. Plint,
2005 SCC 58 at para. 78:

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: [Athey].

[63]        
The most basic principle of tort law is that the plaintiff must be
placed in the position he or she would have been if not for the defendant’s
negligence, no better or worse. In accordance with the “thin skull rule”,
tortfeasors must take their victims as they find them, even if the plaintiff’s
injuries are more severe than they would be for a normal person. However, under
the “crumbling skull rule”, the defendant need not compensate the plaintiff for
any debilitating effects of a pre-existing condition which the plaintiff would
have experienced anyway: Athey at paras. 32-35.

Conclusion

[64]        
Ms. Dha concedes that Ms. Blackman sustained a minor soft
tissue injury to her neck and upper back; however, she submits that her
injuries have healed over the course of time. Therefore, Ms. Blackman’s
current soft tissue complaints are not causally related to the accident.

[65]        
The parties agree that the extent of this collision was relatively minor.
Counsel for Ms. Dha submits that this is a factor to be considered when
assessing Ms. Blackman’s claims of injury.

[66]        
It has been well recognized by the courts that the limited amount of
motor vehicle damage is not “the yardstick by which to measure the extent of
the injuries suffered by the plaintiff”. As Mr. Justice Macaulay stated in
Lubick v. Mei and another, 2008 BCSC 555 at para. 5:

The Courts have long debunked as myth the
suggestion that low impact can be directly correlated with lack of compensable
injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray
J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that
if there is no motor vehicle damage then there is no injury. This is a
philosophy that the Insurance Corporation of British Columbia may follow, but
it has no application in court. It is not a legal principle of which I am aware
and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence
and extent of injuries are determined on the evidence, not with
"extraneous philosophies that some would impose on the judicial
process". In particular, he noted that there was no evidence to
substantiate the defence theory in the case before him. Similarly, there is no
evidence to substantiate the defence contention that Lubick could not have
sustained any injury here because the vehicle impact was slight.

[67]        
See also: Hoy v. Harvey, 2012 BCSC 1076 at paras. 47-49.

[68]        
Ms. Blackman’s position is that Ms. Dha caused the soft tissue
injuries she sustained, which has resulted in mild, intermittent pain to her
upper back, neck and shoulders and headaches. Prior to the accident, Ms. Blackman
was a pain-free, heathy, active and hard-working wife and mother who enjoyed
spending time with her family and her job as an elementary school music
teacher. According to Ms. Blackman, there is no alternative explanation or
cause for her injuries but-for the accident.

[69]        
The medical experts called by Ms. Blackman agree that she suffers
from soft tissue injuries in her neck and shoulder area as a result of the
accident. Both conclude that she will permanently have mild, intermittent pain
as a result of the injuries.

[70]        
On the totality of the evidence, I am satisfied that Ms. Blackman
has established on a balance of probabilities that the injuries were caused by
the motor vehicle collision on August 17, 2010.

ASSESSMENT OF DAMAGES

Non-Pecuniary Damages

The Law

[71]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The compensation
awarded should be fair to all parties, and fairness is measured against awards
made in comparable cases. Such cases, though helpful, serve only as a rough guide.
Each case depends on its own unique facts: Trites v. Penner, 2010 BCSC
882 at paras. 188-189.

[72]        
In Stapley v. Hejslet, 2006 BCCA 34 [Stapley], Kirkpatrick
J.A. outlined the factors to be considered when assessing non-pecuniary damages
at para. 46:

The inexhaustive list of common factors cited in [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 BCCA 54).

[73]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[74]        
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) by McEachern C.J.S.C. (recently quoted with approval in Edmondson
at para. 2). In referring to an earlier decision, he said:

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505, I referred to counsel’s argument that a defendant
is often at the mercy of a plaintiff in actions for damages for personal
injuries because complaints of pain cannot easily be disproved. I then said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery period.

An injured person is entitled to be
fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.

Conclusion

[75]        
Ms. Blackman submits that her injuries warrant an award for
non-pecuniary damages in the range of $65,000 to $100,000. In support of this
position, her counsel cites the following decisions:

·      
Beagle v. Cornelson Estate, 2013 BCSC 933: a 36-year-old
woman received an award of $85,000 for soft tissue injuries in the neck and
right shoulder and headaches. Although the injuries were not significant they
continued for over five years and were considered to be chronic.

·      
Neumann v. Eskoy, 2010 BCSC 1275: a 47-year-old male
received an award of $90,000 for chronic pain syndrome resulting in chronic
neck pain, sleep difficulties, headaches and fatigue, and also had a pre-existing
degenerative spine condition and osteoarthritis to the right hip.

·      
Smith v. Moshrefzadeh, 2012 BCSC 1458: a 54-year-old
female received an award of $80,000 for soft tissue injuries to her neck and
upper back, headaches radiating from the back of her neck, sleep disruption and
episodic flare-ups of pain.

·      
Kumar v. Elpidio, 2013 BCSC 236: a 44-year-old female
received an award of $80,000 for soft tissue injuries to her left shoulder,
neck and upper back, which resulted in myofascial chronic pain syndrome.

·      
Szymanski v. Morin et al, 2010 BCSC 1 [Szymanski]: a
55-year-old male involved in a rear-end collision received an award of $75,000
for soft tissue injuries to the left side of his neck, which resulted in
chronic neck pain.

[76]        
Counsel for Ms. Dha takes the position that Ms. Blackman’s
soft tissue injuries were very mild in nature and have had no effect on Ms. Blackman’s
ability to function on a day-to-day basis. Counsel for Ms. Dha contends
that the award for this head of damages should be in the range of $10,000 to
$15,000. In support of this submission, Ms. Dha’s counsel cites the
following two cases:

·      
Hoy v. Harvey, 2012 BCSC 1076: a 29-year-old male suffered
soft tissue injuries to his neck and shoulder area, as well as his back, which
resolved within months of his accident. He returned to his regular working life
and lifestyle. He received an award of $7,000.

·      
Sarowa v. Gill, 2010 BCSC 873: a 26-year-old female who suffered
a mild strain to soft tissue in her neck and back as a result of the accident. She
had substantially recovered from her accident after six months, although she continued
to have some mild, non-debilitating neck and lower back pain. She received an
award of $15,000.

[77]        
I have considered the impact of the injuries on Ms. Blackman’s
general well-being in coming to a decision on the appropriate award under this
category. Ms. Blackman is a stoic and determined person. Despite the
recurring neck pain and resulting headaches, she has continued to work full-time,
participate in some recreational activities and raise a family. I accept that Ms. Blackman
has dealt with the intermittent pain for over four years and will continue to
experience some periodic mild pain. In formulating the appropriate award, I
have taken a number of factors into account that will have an impact on her
overall well-being: the emotional suffering, including her frustration with not
fully participating in family activities; the adjustments she has made to her
lifestyle, including household chores; the effects of the injuries on her
relationship with her husband, children and extended family; and the impact on
her ability to play various musical instruments.

[78]        
Having reviewed the cases provided by both parties, I assess Ms. Blackman’s
non-pecuniary damages at $80,000.

Loss of Housekeeping Capacity

[79]        
Ms. Blackman seeks an award in the range of $10,000 to $15,000 for her
loss of housekeeping capacity. Ms. Dha submits that the evidence does not
support such a claim.

[80]        
Ms. Blackman relies on the decision in O’Connell (Litigation
Guardian of) v. Yung, 2012 BCCA 57 [O’Connell], which referred to
the leading cases of Kroeker v. Jansen (1995), 123 D.L.R. (4^th)
652 (B.C.C.A), leave to appeal refused [1995] S.C.C.A. No. 263 and McTavish
v. MacGillivray, 2000 BCCA 164.

[81]        
In O’Connell, Kirkpatrick J.A. summarizes the distinction between
loss of housekeeping capacity and cost of future care at para. 67:

As I understand the principle, it is the loss of a capacity –
an asset – that is compensated. Accordingly, because the award reflects the
loss of a personal capacity, it is not dependent upon whether replacement
housekeeping costs are actually incurred. Damages for the cost of future care
serve a different purpose from awards for loss of housekeeping capacity. Unlike
loss of housekeeping capacity awards, damages for the cost of future care are
directly related to the expenses that may reasonably be expected to be required
(Krangle at para. 22).

[82]        
Ms. Blackman testified, as did her husband, that prior to her
accident, she was someone who took responsibility for all household chores,
including cooking, washing dishes, laundry and household cleaning, such as
vacuuming. However, following the accident, while she can still do most
household chores, she has to pace herself and avoids vacuuming, as it tends to
aggravate her symptoms.

[83]        
While I accept that since the accident Mr. Blackman has had to
assist Ms. Blackman with the household chores, in particular the
vacuuming, I am not persuaded on the evidence that the adjustment is
sufficiently significant such that it justifies a discrete award of damages. In
Szymanski, at paras. 145-146, Ker J. declined to award a separate
amount of damages for loss of housekeeping capacity where family members had to
assist the plaintiff with some chores, and instead considered this impact on
the plaintiff’s overall lifestyle in his non-pecuniary damage award. Similarly,
I have considered Ms. Blackman’s challenges and discomfort in performing
household tasks as a factor in the assessment of non-pecuniary damages set out
above.

Costs of Future Care

The Law

[84]        
The plaintiff is entitled to compensation for the cost of future care
based on what is reasonably necessary to restore her to her pre-accident
condition, in so far as that is possible. When full restoration cannot be
achieved, the court must strive to assure full compensation through the
provision of adequate future care. The award is to be based on what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.) [Milina]; Williams v. Low, 2000 BCSC 345;
Spehar v. Beazley, 2002 BCSC 1104; Gignac v. Insurance Corporation of
British Columbia, 2012 BCCA 351 at paras. 29-30.

[85]        
The test for determining the appropriate award under the heading of cost
of future care is an objective one based on medical evidence. For an award of
future care there must be a medical justification for the claim, and the claim
must be reasonable: Milina at paras. 195-201.

[86]        
Future care costs are “justified” if they are both medically necessary
and likely to be incurred by the plaintiff. The award of damages is
speculative, and thus requires a prediction as to what will happen in future.
If a plaintiff has not used a particular item or service in the past, it may be
inappropriate to include the cost of that service in a future care award.
However, if the evidence shows that previously rejected services will not be
rejected by the plaintiff in the future, he or she can recover for such
services: Izony v. Weidlich, 2006 BCSC 1315 at para. 74; O’Connell
at paras. 55, 60 and 68-70.

[87]        
The extent, if any, to which a future care costs award should be
adjusted for contingencies depends on the specific care needs of the plaintiff.
In some cases, negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiff’s
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert
v. Bottle, 2011 BCCA 144 at para. 253.

[88]        
An assessment of damages for cost of future care is not a precise
accounting exercise. Rather, it is a matter of prediction that must be made in
light of the fact that no one knows the future: Krangle (Guardian ad litem
of) v. Brisco, 2002 SCC 9 at para. 21.

Conclusion

[89]        
Ms. Blackman submits that an award in the range of $10,470 to
$12,705 ought to be granted under this head of damages. She submits that the
cost of future care consists of $3,600 for monthly physiotherapy or massage
therapy for three years and $500 for anti-inflammatory medication, such as
Advil, for 25 years. In addition, Ms. Blackman estimates that $6,370 to
$8,605 is required for the various injection treatments recommended by Dr. Waseem.

[90]        
Ms. Dha submits that there is no evidence to suggest Ms. Blackman
will incur any future care costs. In particular, she argues the recommendation
by Dr. Waseem is purely speculative and should be given little weight. There
is no evidence to indicate that Ms. Blackman will require these injections
in the future.

[91]        
I agree with Ms. Dha that Dr. Waseem’s treatment
recommendations regarding various types of injections should be given little
weight. At best, these recommendations are speculative, and there is no
evidence before me regarding the cost of these injections, nor is there any
evidence that Ms. Blackman would seek out this form of treatment in the
future.

[92]        
I accept Dr. Naiker’s recommendation that Ms. Blackman will
continue to benefit from regular stretching and strengthening exercises as
recommended by a physiotherapist, together with massage. The evidence has
established that Ms. Blackman’s husband has been treating her with massage
since the accident, so there will likely be no cost for this service in the
future. Although Dr. Naiker did not specifically recommend Ms. Blackman
resume physiotherapy, she did acknowledge that some people do benefit from
additional physiotherapy sessions. I also must consider the fact that Ms. Blackman’s
new family doctor has recommended physiotherapy treatments.

[93]        
I am satisfied that Ms. Blackman will experience a relatively small
pecuniary loss relating to future physiotherapy and pain medication. I will
make some allowance for ongoing over-the-counter pain medication. A modest
award should also be made to allow her to obtain physiotherapy from time to
time to ensure she continues with an appropriate stretching and strengthening
exercise regime. Accordingly, I award $1,500 for the cost of future care.

Special Damages

The Law

[94]        
It is well established that an injured person is entitled to recover the
reasonable out-of-pocket expenses he or she incurred as a result of an
accident. This is grounded in the fundamental governing principle that an
injured person is to be restored to the position he or she would have been in
had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281;
Milina at para. 170.

Conclusion

[95]        
Ms. Blackman submits that an award of $1,060.50 should be made
based on an agreed amount of $965.50, as well as the cost of a massage machine
and heating pad.

[96]        
Counsel for Ms. Dha did not directly address this claim for
damages.

[97]        
Accordingly, I find that Ms. Blackman is entitled to reimbursement
for her special damages in the amount of $1,060.50.

SUMMARY

[98]        
In summary, I award Ms. Blackman damages as follows:

·      
Non-pecuniary Damages – $80,000;

·      
Cost of Future Care – $1,500;

·      
Special Damages – $1,060.50.

[99]        
Accordingly, her global damages award is $82,560.50.

COSTS

[100]    
If the parties are unable to agree on costs, they may speak to the
issue.

The
Honourable Madam Justice Devlin