IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150731

Docket: M132536

Registry:
Vancouver

Between:

Amal
Aminmohamed Dhanji

Plaintiff

And

David
John Holland

Defendant

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

INTRODUCTION

[1]            
The 39-year-old plaintiff, Amal Aminmohamed Dhanji, claims against the
defendant John Holland for damages for personal injuries.  On November 22, 2011,
the plaintiff was struck by the defendant’s vehicle while she was walking in a
marked crosswalk at the intersection of 2^nd Avenue and Crowe Street
in Vancouver, British Columbia.

[2]            
The defendant has admitted liability.

[3]            
Ms. Dhanji claims that as result of the accident she suffered
bruising, contusions and pain in her left arm and left and right hips, soft tissue
injuries to her mid back and upper back, pain in her low back, headaches,
chronic pain syndrome and depression.

ISSUES

[4]            
The main issues on this assessment of damages are:

·      
the nature and extent of the injuries to the plaintiff caused by
the negligence of the defendant;

·      
whether the plaintiff has failed to mitigate her damages; and

·      
the assessment of damages for pain and suffering and loss of
enjoyment of life, past and future loss of earning capacity, costs of future
care and special damages.

BACKGROUND

Plaintiff’s Original Position

[5]            
The plaintiff, who is single, was born and raised in Burnaby.  At high
school, Ms. Dhanji played basketball, volleyball, tennis and soccer, was
outgoing, and led an active social life.  In addition to her studies, she worked
up to 20 hours a week.  After graduating from high school, the plaintiff
attended Douglas College, and then Simon Fraser University, where she graduated
in 2001 with a Bachelor of Science degree in biology.  While attending
university, she continued to demonstrate a strong work ethic.  While pursuing
her studies, she worked at Costco as a cashier and membership clerk 20 to 25
hours per week.

[6]            
During her university years, and throughout her employment at Costco,
the plaintiff participated in a range of social and recreational activities.  She
attended the Costco softball team’s games and “subbed in” to play from time to
time.  She enjoyed hiking, participated in intramural sports, and attended the
gym a couple of times a week.

[7]            
Ms. Dhanji is a member of the Ismaili Muslim community.  Prior to
the accident, she attended mosque one evening a week, and as a volunteer, assisted
with security at special events and taught religion classes to children on
Saturday mornings.

[8]            
While attending Simon Fraser University, the plaintiff developed an
interest in DNA forensic work.  Following her graduation from SFU, she
completed a course in forensic technology at the British Columbia Institute of Technology.
The plaintiff continued to work at Costco for up to 40 hours a week, and was
promoted to a supervisory position.

[9]            
In July 2004, the plaintiff applied for and obtained employment as an
exhibit clerk at the RCMP forensic laboratory in Vancouver on a six-month term
contract.  While working 40 hours a week at the forensic lab, she continued to
work 25 hours per week at Costco.  From 2004 through 2006, the plaintiff held a
series of term appointments at the forensic lab.  In December 2006, she was
offered and accepted a DNA analyst position.  She successfully completed the training
process and qualified as a DNA analyst in June 2008.  The plaintiff has
continued to work at the forensic lab as a DNA analyst since June 2008.

[10]        
Prior to the accident, the plaintiff worked a compressed shift of four
10-hour days.  She spent about 60% of her time in the laboratory working at a
lab bench processing DNA samples.  For the remaining 40% of her time, she
worked at a desk documenting her work and completing correspondence.  DNA
analysts are assigned batches of samples for processing.  Analysis involves a
four-step process of extraction, measurement and copying of DNA, and then
separating the copies and sending them for identification.  Each batch of
samples assigned to an analyst may require up to a week to complete.  DNA
analysis requires concentration.  Accuracy is paramount.  The analysts are
preparing evidence for use in court and must often work to deadlines. The
plaintiff’s work involves periods of sustained sitting, and for the manual
processing of DNA samples, some physically demanding work with the upper arms in
holding and manipulating pipettes and test tubes during the sampling process.

[11]        
As a DNA analyst, the plaintiff was and is eligible to work overtime
shifts on the weekends at double time.  As I discuss in more detail later in these
reasons, before the accident the plaintiff worked some Saturday overtime
shifts, generally not more than once a month, and usually not during the
summer.  In addition, Ms. Dhanji was able to bank overtime worked during
the week when it was necessary to stay late in order to complete a step in the
DNA sampling process.  Extra hours worked during the week are banked at time
and a half.  The plaintiff was able to take the banked overtime as time off.

[12]        
In September 2008, the plaintiff decided that with the benefits of paid
double time for Saturday shifts at the forensics lab, she no longer needed to
work at Costco. She terminated her employment at Costco but continued to
socialize with her circle of friends there.  Before the accident, the
plaintiff’s recreational and social activities included hosting dinners and
travelling with her friends, hiking, volleyball and attendance at the Costco
softball games.

[13]        
On May 15, 2010, Ms. Dhanji suffered a severe ankle sprain while
hiking on the Squamish Chief.  Conservative treatment, including physiotherapy,
produced some improvement to the pain and swelling the plaintiff experienced.  However,
the plaintiff’s limitations, including an inability to run, hop or hike,
persisted into 2011. Ultimately, in November 2011, an orthopedic surgeon, Dr. Stephen
Pinney, recommended ankle repair surgery, which the plaintiff underwent on
January 11, 2012.

[14]        
The plaintiff did not play volleyball or softball or hike after her
ankle injury.  However, by the time of the accident, she was exercising at the
gym on a regular basis.

[15]        
Between 1992 and 1997, Ms. Dhanji suffered whiplash injuries to her
neck and back in three motor vehicle accidents.  The plaintiff testified that
in the 1997 accident she suffered low back pain, “really bad whiplash” and pain
in the neck.  She said her symptoms lasted for about a year following that
accident.  Ms. Dhanji also gave evidence that she experienced no symptoms
of back or neck pain during the 10 years preceding the accident of November 22,
2011.

[16]        
The plaintiff did experience intermittent “back tightness” which she
attributed to work-related “wear and tear” for several years before the
accident.  She treated this complaint with massage therapy once every month or
two.  At the time of the accident, Ms. Dhanji had mild multi-level
degenerative changes to her cervical and thoracic spine.  Dr. Russell
O’Connor, the physiatrist who was retained by plaintiff’s counsel to conduct an
independent medical examination of Ms. Dhanji, testified that these
degenerative changes shown on an MRI of the plaintiff’s neck and back
pre-existed the accident.  Dr. O’Connor also testified that 20% of
patients in their ’30s have asymptomatic degenerative changes to their spine.

[17]        
I find that before the accident, the plaintiff was outgoing, had an
active social life, enjoyed the company of her friends, and was dedicated to
her work as a DNA analyst.  Ms. Dhanji was hard-working, ambitious, and
interested in opportunities for promotion within the forensic lab.  She was
both physically and mentally capable of performing all of the duties of her
position.  The plaintiff regularly attended mosque, both as a worshipper and a
volunteer.

[18]        
Ms. Dhanji had no prior history of depression.  Apart from her
intermittent complaints of back tightness, Ms. Dhanji had not suffered
from any significant symptoms of mid back, lower back or upper back pain for
many years before the accident.  The degenerative changes to her cervical and
thoracic spine were asymptomatic.

[19]        
As a result of her ankle injury, the plaintiff had stopped some of her
physical activities, including hiking, volleyball and softball.  At the time of
the accident, her ankle prevented her from hopping or running.  While the
plaintiff was required to take eight weeks off work following her ankle
surgery, at the time of the accident her ankle injury did not interfere with
the performance of her duties as a DNA analyst, aside from occasional time off
to attend physiotherapy treatments.

The Accident and its Aftermath

[20]        
At approximately 7:00 p.m. on November 22, 2011, Ms. Dhanji was
injured when the front-end of the defendant’s Hummer vehicle struck her left
arm and hip, causing her to fall to the pavement, on her right side.  The
plaintiff recalls that immediately after the accident she experienced pain in
her left arm and right hip. Ms. Dhanji was transported by ambulance to
Vancouver General Hospital, where x-rays revealed no fractures. She was given
Tylenol 3 and advised to consult her family physician. The plaintiff did not
suffer any head injury or loss of consciousness in the accident.

[21]        
After Ms. Dhanji’s parents took her home from the hospital, her
sleep was disrupted by pain. She woke the following morning with pain and
stiffness in her left arm, right hip and back. The plaintiff saw her family
physician, Dr. Olivia Sampson on November 23, 2011 and reported pain in
her left arm, hips, back and neck, for which Dr. Sampson prescribed
Tylenol 3 and recommended physiotherapy.

[22]        
Ms. Dhanji was off work for the remainder of 2011 and until her
ankle surgery of January 11, 2012.  The plaintiff testified that her back pain
prevented her from working due to her inability to sit for prolonged periods of
time.

[23]        
On her doctor’s recommendation, the plaintiff attended physiotherapy treatments
for pain in her mid and upper back, neck, left arm and right hip.  She found
the physiotherapy provided some relief and also took Tylenol 3 and regular
Tylenol to manage pain.

[24]        
 For about four days following her ankle surgery, while the pain was intense,
she took oxycodone. Once her ankle pain subsided, the plaintiff resumed
physiotherapy, receiving treatments for both her ankle and her accident-related
injuries.

[25]        
The plaintiff required eight weeks for recovery from her ankle surgery. 
Accordingly, she would not have been able to work during that time regardless
of the accident.

[26]        
The plaintiff testified that eight weeks after her ankle surgery she was
able to walk normally, but continued to experience intermittent swelling of her
ankle for some time. Physiotherapy for her ankle ceased three months after her
surgery. Ms. Dhanji testified that she has had no restrictions with
respect to her ankle since late 2012, and no symptoms of ankle pain or swelling
in the last year.

[27]        
Ms. Dhanji began a gradual return to work in March 2012. 
Initially, she worked four hours per day, four days a week. Mid and upper back
pain inhibited her ability to sit for prolonged periods of time.  Her employer
permitted her to take extra breaks as required and initially limited some of
her duties in the lab. The plaintiff slowly increased her hours of work until
she resumed a 40-hour week in November 2012, working five eight-hour days per
week.  Ms. Dhanji found that she could cope with an eight hour shift, but
lacked the endurance to work her former compressed schedule of four 10-hour
days.

[28]        
In 2012, the plaintiff began an active rehabilitation program under the
direction of a kinesiologist, who also developed a program of exercises for her
to perform independently in the gym.  Her program with the kinesiologist and
the gym exercises produced some improvement to the plaintiff’s back pain,
although the mid back pain, in particular, continued to trouble her.

[29]        
When the plaintiff was first assessed by Dr. O’Connor in February
2013, her mood was affected by chronic pain, however she was not prepared to
acknowledge that she was suffering from symptoms of depression or anxiety.  Dr. O’Connor
found that despite Ms. Dhanji’s participation in active rehabilitation,
she was deconditioned.  On the physiatrist’s recommendation, Ms. Dhanji
increased her kinesiology appointments to four times a week and continued her
independent exercise program, working out to up to one and a half hours a day.

[30]        
The plaintiff found that as a result of her exercise regime, her neck
pain improved, although her mid back pain persisted.  The plaintiff testified
that she continues to experience constant back pain but only experiences neck
pain and headaches when her back pain is aggravated.

[31]        
The plaintiff also experienced an improvement in her mood as her
physical symptoms improved. The plaintiff testified that through 2013 she
continued to experience mid back pain; that she was fatigued by the end of her
work days; and that by the end of the week her symptoms of back pain were
aggravated to the point where she needed her weekends to recuperate.

[32]        
In March 2014, the plaintiff began a relationship with a man who lived
in Abbotsford.  At age 38, the plaintiff was interested in building a permanent
relationship and wanted to start a family.  By 2014, the plaintiff was working
a schedule of five nine-hour days, Monday through Friday one week, followed by
four nine-hour days the next week. About three times a week, the plaintiff,
after completing her nine-hour shift, spent two hours commuting to Abbotsford,
and an hour the following morning returning to the lab. Ms. Dhanji devoted
her time to her relationship and let her exercise regime lapse.  As her level
of fitness deteriorated, her symptoms regressed. The plaintiff testified that
she began to experience more back pain in the summer of 2014 and that as the
intensity of that pain increased, she also experienced neck pain and headaches.

[33]        
The plaintiff did continue to see a physiotherapist for relief of back
pain about once a month.

[34]        
The plaintiff’s partner insisted that she only receive treatment from a
female physiotherapist.  Unfortunately, Ms. Dhanji’s relationship ended
suddenly in December 2014 as a result of her partner’s lack of empathy for her
persistent pain, and his demands that she not see the male physiotherapist who
had effectively treated her for some time.  Ms. Dhanji was understandably
upset and hurt, and mourned the end of the relationship for about two months
after the breakup.

[35]        
When Ms. Dhanji was examined again by Dr. O’Connor in March
2015, she complained of mid back pain, neck pain and headaches, and
acknowledged that she had recently experienced symptoms of depression.  She had
just started counselling and cognitive behavioural therapy with a psychologist,
Dr. Suhail.

[36]        
In February 2015, Ms. Dhanji resumed cardiovascular and back
strengthening exercises at the gym, one or two times per week.  Ms. Dhanji
testified that she intends to work up to the same level and intensity of
training that she achieved in 2013, but pain and fatigue have undermined her
motivation to do so.

[37]        
At the time of trial, the plaintiff’s most significant symptoms were mid
and upper back pain.  Ms. Dhanji continued to complain of suffering neck
pain and severe headaches when her back pain was aggravated.  She continues to
experience discomfort when sitting for prolonged periods of time.  She takes
Tylenol when required to assist in coping with her pain on workdays. Ms. Dhanji
attends mosque less frequently than she did before the accident because she
finds it difficult to sit on the floor for prayers and meditation.

[38]        
In short, the plaintiff continues to experience significant mid back
pain three and a half years after the accident.  Other symptoms, including neck
pain and headaches, which had previously abated, had reappeared at the time of Dr. Connor’s
second report of March 2015.  The plaintiff is able to cope, with some
discomfort and pain, with her work during regular hours, but since the
accident, has only rarely worked Saturday overtime shifts. The plaintiff’s
continued back and neck pain have restricted some of her recreational, social
and religious activities.

[39]        
Before addressing the extent to which plaintiff’s injuries, including
her chronic pain and depression were caused by the defendant’s negligence, I
will review the medical evidence.

THE PLAINTIFF’S CONDITION

Medical Evidence

  Dr. Russell O’Connor, Physiatrist

[40]        
Dr. O’Connor examined the plaintiff on February 1, 2013 and
reassessed her on March 27, 2015.

[41]        
On his examination on February 1, 2013, approximately 14 months after
the accident, Dr. O’Connor reported that the contusions and bruising to
the plaintiff’s left arm and right hip had resolved.  In Dr. O’Connor’s
opinion, as a result of being struck on her left side and knocked to the ground
by the defendant’s vehicle, Ms. Dhanji had also suffered a prominent
emotional response to the accident, significant weight gain, and neck, mid back
and low back pain.  Dr. O’Connor thought that the plaintiff, who denied
problems with anxiety or depression, had not come to terms with the emotional
impact of the accident on her.

[42]        
At the time of his first examination, the plaintiff weighed 200 pounds. 
The plaintiff reported she had gained approximately 20 pounds since the
accident.  Based on her body mass index, Ms. Dhanji’s weight placed her in
the obese category.  More importantly, Dr. O’Connor found the plaintiff to
be quite deconditioned, despite her work with a personal trainer.

[43]        
By February 1, 2013, the plaintiff’s neck pain had subsided, although it
continued to trouble her, particularly at the end of a long work week.  Her low
back pain had significantly improved and in Dr. O’Connor’s opinion was not
a limiting factor at the time of his first examination.  Ms. Dhanji’s mid
back pain was her principal limiting factor and was aggravated with prolonged
sitting.

[44]        
In Dr. O’Connor’s opinion, the plaintiff was capable of full-time
work as a DNA analyst and was able to work out four days a week for an hour and
a half at a time.  However, she was not working out at a sufficient level of
intensity to strengthen her back muscles.

[45]        
Dr. O’Connor attributed the plaintiff’s period of disability from November
22, 2011 until her ankle surgery of January 11, 2012 to the motor vehicle
accident.  He thought that as a result of the ankle surgery, Ms. Dhanji
would have been off work in any event for the eight weeks between her ankle
operation and the commencement of her graduated return to work in March 2012. 
In Dr. O’Connor’s opinion, the plaintiff’s slow graduated return to work
from March to November 2012 was related to the accident.  The main limitation
for the plaintiff’s return to full-time work was her mid back pain.

[46]        
Dr. O’Connor thought that by February 1, 2013 the plaintiff had not
yet reached her maximum medical improvement.  He offered a guarded prognosis:

How well she will respond to
further strength and conditioning and getting her back muscles to the point
where they can actually protect her back and keep her back stable, as well as
improve the tolerance to sitting with improving the conditioning and endurance
of these muscles, is yet to be determined. She has been doing this to date, but
at present her muscles are still quite weak, and she needs to redouble her
efforts in this regard. This is not to say she has been doing anything wrong,
just that she has not quite gotten there yet.

The fact that she still has
symptoms at the over-one-year mark means that the prognosis is guarded that her
symptoms are going to completely resolve, at least in the short term.

I would estimate an
approximately 30-percent chance that she will be left with permanent symptoms
of mid back discomfort to some extent intermittently. However, it is more
likely − I would estimate a 70-percent chance − that her symptoms will slowly improve should she work
on conditioning and with the passage of time.

It
is also important to recognize that there may be other psychosocial factors
that are affecting her pain experience. She is quite emotional about the
accident still. This type of problem can fuel ongoing chronic discomfort or
pain, particularly muscles-type tension, and reduce the patient’s tolerance for
discomfort.

[47]        
Dr. O’Connor recommended that the plaintiff see a psychologist for
her emotional issues related to the accident.  He also recommended a continued
progressive strength and conditioning program to strengthen the plaintiff’s
back.

[48]        
When Dr. O’Connor re-examined Ms. Dhanji on March 27, 2015 he
found that her condition had deteriorated.

[49]        
Although she had just started to see a psychologist, the plaintiff had
been reluctant to pursue psychological or psychiatric treatment.  She showed
prominent symptoms of depression and anxiety.  Dr. O’Connor recommended
the plaintiff take anti-depressants and that she be seen by a psychologist and
a treating psychiatrist.

[50]        
With respect to the plaintiff’s weight gain, Dr. O’Connor noted Ms. Dhanji
had not lost any weight when her physical activity had stopped while she was in
her relationship.  Her functional capabilities had declined; her pain had
gradually and steadily increased.  Although the plaintiff’s fitness had
improved in 2013 and early 2014, her deconditioning had increased again.

[51]        
The plaintiff’s neck pain had recurred with her reduced physical
activity, increased stress at work and home, and work demands.  The plaintiff’s
mid back, which had improved while the plaintiff worked on muscular
strengthening, continued to trouble her.  Dr. O’Connor thought that part
of Ms. Dhanji’s ongoing mid back pain was muscular and that likely part of
it was related to irritation or wear of the cervical facet joints, at the C5-6
level.

[52]        
On her second examination, the plaintiff also complained of headaches,
which were not identified as a problem on her first examination.  In Dr. O’Connor’s
opinion, the headaches were related to a combination of deconditioning, the plaintiff’s
low mood and pain at the top of her neck.  He thought the headaches would
improve if the plaintiff were aggressively treated for her mood, disturbed
sleep and neck pain.

[53]        
Other factors which Dr. O’Connor thought might be contributing to
the plaintiff’s neck pain and headaches were the worsening of her mood, her
work and the break-up of her recent relationship.

[54]        
The plaintiff also complained of pain down her right arm.  Dr. O’Connor
ruled out nerve root impingement.  He thought this was most likely myofascial
pain involving muscles in the neck and shoulder, and some mechanical pain from the
lower cervical facet joints.

[55]        
Dr. O’Connor thought the plaintiff was capable of full-time work
with some accommodations.  The plaintiff’s mood was limiting her capacity to
cope with work.  Ms. Dhanji had made modifications, including use of
ergonomic chairs, a hot pack and magic bag to assist her in managing her neck
and mid back pain.  The plaintiff’s chronic pain limited her tolerance for
prolonged sitting and repetitive activity involving the full extension of the
shoulder muscles, such as reaching overhead or out to the side or front.

[56]        
Dr. O’Connor’s prognosis of March 27, 2015 included the following:

I would estimate approximately
a 15-20% chance that her symptoms will persist sufficient or severe enough that
it will cause her to go off work at one point or another. It is more likely
than not that she will maintain her employment. However, her pain is still into
the moderate to severe level. She is struggling and in fact since I last saw
her things have actually worsened. However, it is important to take into
consideration that her symptoms had actually gotten better for a period of time
when she was exercising more regularly and, if she gets back to this, she
should be able to manage. The hard part is that, unless exercise is something a
patient really enjoys doing and it is done for lifestyle and because it is
something they enjoy, it is very difficult to get patients to continue with an
exercise program. If it is done for "therapy” so to speak, most patients
fall off the wagon and have a very difficult time continuing on with this.
Unless it is a lifestyle that they really enjoy doing, it is much less likely
for them to be able to continue on or manage with. In that situation, looking
at other solutions that will help with the patient’s pain would be important to
consider, including the injections that are outlined below.

It is more likely than not
that the patient’s symptoms will persist and bother her anywhere from a mild to
occasionally moderate extent indefinitely. There should be further improvement
should she be able to get out of her current situation of low mood,
deconditioning, and increased stress. With appropriate management of these
factors, her pain should improve to the point where it is into that mild
category but she is still able to manage at home work and recreationally with
some modifications.

There is a very real chance,
however, that her mood, anxiety, and deconditioning do not improve and that her
pain still persists at the present level in the moderate and occasionally
severe range. In that situation, patients are much more likely to have troubles
with depression or anxiety. This will need to be kept in consideration when
looking at future life jobs and plans for her.

The
most likely outcome would be that her symptoms continue to bother her to a mild
and occasionally moderate extent if she was to maintain her exercise routine
and promptly and aggressively treat her mood difficulties should they rear
their head as they are presently. This would be a lifelong battle as her pain
has proven to be chronic and most mood problems, if they have been present as
long as they have for this patient, tend to also be chronic and a lifelong
battle. For this reason, they will often rear their heads intermittently
through one’s lifetime and she will need to continue to be managed on an
ongoing basis.

[57]        
In addition to recommending anti-depressant medication to treat the
plaintiff’s mood, Dr. O’Connor recommended a strength and conditioning program
for her neck and shoulder girdle.  Based on the positive effects of the
plaintiff’s exercise regime in 2013, Dr. O’Connor thought that the
plaintiff’s headaches and neck pain would significantly improve if she resumed
an active exercise program.  If the strength and conditioning program did not
produce the desired results, he thought a C2-3 facet joint block injection
might assist in treating the plaintiff’s neck pain and headaches.

[58]        
Finally, Dr. O’Connor recommended that the plaintiff see a personal
trainer or kinesiologist every three to five years to help her in adjusting her
exercise program to manage any continuing symptoms.

  Dr. Paul
Devlin, Psychiatrist

[59]        
Dr. Devlin assessed Ms. Dhanji on March 24, 2015 at the
request of plaintiff’s counsel.  Dr. Devlin noted that the plaintiff
became tearful when describing her frustration with her prolonged symptoms of
pain.  Ms. Dhanji reported a low mood, that her sleep was sometimes
disrupted by pain, and that she felt physically deconditioned and incapable of
summoning the energy required to lose weight through exercise.

[60]        
In Dr. Devlin’s opinion, the plaintiff suffers from a chronic pain
syndrome and depression.  He reported that:

[The plaintiff] does not
appear to have had any period of time over the last four years when she has
been completely free of depressive symptoms. She is an intelligent, capable,
resourceful, resilient kind of person who has struggled to maintain a
reasonable face. The effects of depression are neurovegatative with disturbance
in sleep, energy, concentration, motivation and stamina all of which are
endorsed by this lady.

I
believe this lady is suffering from a mild to moderate chronic depression
largely as a result of the injuries that she sustained which I would describe
as a chronic myofascial pain syndrome sustained in the index motor vehicle
accident.

[61]        
Dr. Devlin thought the plaintiff’s depression would improve with
treatment.  He recommended a combination of medication and 25 to 30 hours of
cognitive behavioural therapy with a psychologist.  Dr. Devlin also
thought the plaintiff would benefit from a full assessment at a pain clinic, at
an approximate cost of $8,000.

[62]        
In cross-examination, Dr. Devlin agreed that a variety of factors
contributed to Ms. Dhanji’s depression when he saw her in March 2015.  In Dr. Devlin’s
opinion, those factors included her pain, sleep disruption, her weight gain and
consequent loss of self-esteem, financial problems, social isolation from her
friends, stopping volleyball, softball and hiking, and the break-up of her
relationship in December 2014.

[63]        
Although the plaintiff told Dr. Devlin she had put on about 20 pounds
since the accident, her weight had fluctuated within a range of approximately
180 to 200 pounds before and after the accident.  Ms. Dhanji’s own
evidence about her weight was unreliable.  She was not in the habit of weighing
herself or recording her weight, and was unable to recall her weight at various
times. The plaintiff’s weight appears to have fluctuated with her level of
physical activity.  I find that her weight probably increased following her
ankle injury, and then fell while she maintained a high level of exercise
through 2013, before increasing again when she stopped exercising in 2014 during
her relationship.  Before and after the accident, the plaintiff’s weight,
fluctuating between 180 to 200 pounds, placed her in the obese category.

[64]        
The plaintiff testified that she had no financial problems. She is
entitled to unlimited sick pay and has received her full base salary since the
accident.  I find that Dr. Devlin was incorrect in asserting that
financial troubles contributed to the plaintiff’s depression.

[65]        
With respect to social isolation, while the plaintiff’s contact with her
friends has diminished since the accident, she continues to host dinners from
time to time, has travelled with friends to Las Vegas and Whistler and still
attends softball games with her friends. Some of the plaintiff’s friends have
married or had children, and for that reason no longer see her as often as they
did formerly.

[66]        
Counsel for the defendants argues that Ms. Dhanji’s reduction in
sports activities is attributable in large part to her ankle injury. He refers
to the plaintiff’s testimony that she has not played volleyball or softball
since 2009 and has not hiked since she injured her ankle in May 2010.  However,
the plaintiff’s ongoing back and neck pain have also limited her physical
activities.  While Ms. Dhanji is capable of exercising, her tolerance of
repetitive activities that strain her back is reduced.  The plaintiff tried
hiking once in 2014, but found that it exacerbated her back pain and left her
fatigued. She and has not resumed hiking for fear of aggravating her back and
neck pain.

[67]        
Ms. Dhanji’s break-up with her boyfriend was undoubtedly also a significant
factor contributing to her depression when Dr. Devlin saw her.

[68]        
In cross-examination, Dr. Devlin maintained that the plaintiff’s
depression was directly related to her physical pain and chronic pain syndrome,
which she developed after the accident.  The plaintiff had no prior history of
depression.

Findings of Fact: the Plaintiff’s Injuries

[69]        
Although the plaintiff’s evidence regarding her weight was unreliable,
overall, I found the plaintiff to be a credible witness who gave her testimony
in a straightforward manner and without embellishing her symptoms or
complaints.

[70]        
I find that in the accident the plaintiff suffered significant bruising
and contusions, particularly to her left arm and right hip, all of which had
resolved in a matter of weeks and well before Dr. O’Connor’s first
examination of February 1, 2013.

[71]        
I also find that since the accident the plaintiff has experienced
persistent pain in her mid-back, which remained her principal complaint at the
time of trial.  Ms. Dhanji’s low back pain had substantially resolved, and
had ceased to be a limiting factor by February 1, 2013.

[72]        
During the 14 months following the accident, the plaintiff’s neck pain
improved, but at the time of Dr. O’Connor’s first examination, continued
to trouble her intermittently.

[73]        
I accept the opinion of Dr. O’Connor that by the time of his second
examination in March 2015, the plaintiff’s condition had deteriorated. 
Although her neck pain had improved while she engaged in active rehabilitation
and exercise sessions through 2013, after the plaintiff ceased exercising in
2014 she suffered from more intensive mid back pain accompanied by intermittent
flare-ups of intense neck pain, and headaches.

[74]        
The plaintiff has also suffered some intermittent pain down her right
arm, which Dr. O’Connor attributed to myofascial pain involving the
muscles of the neck and shoulder girdle, and possibly some irritation to the
C5-6 facet joint.

[75]        
I also accept the evidence of Drs. O’Connor and Devlin that Ms. Dhanji
suffered symptoms of depression and anxiety following the accident and that she
developed chronic myofascial pain syndrome which persisted at the time of
trial.

[76]        
I find that due to her chronic pain, the plaintiff experiences
intermittent sleep disruption.  In addition, I accept Dr. Devlin’s
diagnosis that Ms. Dhanji suffers from mild to moderate chronic
depression.  In the next section of these reasons, I will set out my findings
concerning the causes of that depression.

[77]        
I also find that Ms. Dhanji’s prognosis is guarded.  As Dr. O’Connor
explained, it is more likely than not that Ms. Dhanji’s symptoms of mid
back and neck pain will persist indefinitely, troubling her from a mild to
occasionally moderate extent.  The plaintiff will likely realize some
improvement if she is able to resume and maintain an active exercise program, and
with treatment for her depression. However, if Ms. Dhanji does not improve
and maintain her physical conditioning, there is a real likelihood that she may
experience bouts of moderate to severe pain.

CAUSATION

[78]        
The basic test for determining causation is the "but for"
test.  The plaintiff bears the burden of establishing that "but for"
the negligent act or omission of the defendant, the injury would not have
occurred: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21.

[79]        
As the Court observed in Resurfice at para. 23:

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.  It ensures that a defendant will not be held liable for the
plaintiff’s injuries where they “may very well be due to factors unconnected to
the defendant and not the fault of anyone”: Snell v. Farrell, at
p. 327, per Sopinka J.

[80]        
The "but for" test must be proved on a balance of
probabilities, rather than with scientific precision: Athey v. Leonati,
[1996] 3 S.C.R. 458, at paras. 13, 16.

[81]        
It is not necessary for the plaintiff to establish that the defendant’s
negligence is the sole cause of the injury.  As long as the defendant is part
of the cause of the injury, the defendant is liable, even if his or her act
alone was not enough to create the injury: Athey v. Leonati, at para. 17.

[82]        
Causation must be established on a balance of probabilities before
damages are assessed: Blackwater v. Plint, 2005 SCC 58 at para. 78.

[83]        
The soft tissue injuries which Ms. Dhanji sustained to her neck and
back in the motor vehicle accidents of 1992, 1996 and 1997 had all resolved
many years before the accident of November 22, 2011.  The mild tightness in her
back that the plaintiff experienced intermittently before the accident, and for
which she received occasional massage therapy treatments, was related to her
sedentary work.  Her pre-accident back discomfort did not interfere with her
functioning, and was of a much lesser order of magnitude than the low back, mid
back and neck pain that Ms. Dhanji suffered following the accident.  Dr. O’Connor
identified the accident as the cause of the plaintiff’s ongoing mid back and
cervical spine pain, although he thought that irritation or wear of the
cervical facet joints was likely also contributing to the plaintiff’s
discomfort.  In Dr. O’Connor’s opinion, the recurrence of Ms. Dhanji’s
neck pain is consistent with the soft tissue injuries she sustained in the
accident.  He explained that pain may be referred from the back into the neck
and shoulder.  As he observed, “soft tissue pain tends to move around”.  I find
that but for the defendant’s negligence, Ms. Dhanji would not have
suffered the low back, mid back and neck pain that troubled her after November
22, 2011, or the chronic mid back and neck pain from which she continues to
suffer.

[84]        
 The plaintiff associates her headaches with bouts of intense neck
pain.  Dr. O’Connor noted in his report of March 27, 2015 that headaches
had only recently become a significant problem.  In the medical records he
reviewed, Dr. O’Connor found no reference to the plaintiff complaining
about headaches before 2014.  Taking into account the delay in the onset of the
plaintiff’s headaches, I accept Dr. O’Connor’s opinion that the headaches
are “a secondary factor related to the chronic neck tension, possibly gradual
development of some wear-and-tear arthritis in the cervical spine, or related
to her depression or stress rather than directly and immediately related to the
motor vehicle accident.”  I find that Ms. Dhanji has not shown that but
for the accident, she would not have suffered from the headaches.

[85]        
I find that the plaintiff’s right arm pain, as Dr. O’Connor
advised, involves referred pain from the muscles in the plaintiff’s neck and
shoulder girdle, and conclude that the accident is a cause of that pain.

[86]        
But for the defendant’s negligence, Ms. Dhanji would not have
incurred the contusions and bruising to her left arm, left thigh and right hip,
all of which had resolved well before Dr. O’Connor’s first examination of
February 1, 2013.

[87]        
I have already discussed the fluctuations in the plaintiff’s weight
before and after the accident.  I am not persuaded that Ms. Dhanji
experienced significant weight gain as a result of the accident.  In both her
original state, and since the accident, Ms. Dhanji has tended to put on
weight during periods of inactivity. Her reporting of her weight gains to Drs.
O’Connor and Devlin was unreliable.  I have found that she had gained weight
before the accident, following her ankle injury.  The plaintiff has not
established that, but for the accident, she would not have experienced the
weight gain of which she now complains.

[88]        
The plaintiff had no history of depression or mood disorder before the
accident.  Following the accident, and as her chronic pain persisted, she
developed symptoms of depression, including low mood, tearfulness, insomnia, and
a decline in her energy, motivation and stamina which continued, at varying
levels, to the time of trial.  I accept Dr. Devlin’s opinion that the
plaintiff’s depression is directly related to the chronic pain she developed
after the accident and that her depressed mood resulted from the chronic pain. 
I find that but for defendant’s negligence, the plaintiff would not have
developed chronic pain syndrome; that the accident caused the onset of Ms. Dhanji’s
depression; and that her continuing chronic back pain is a significant cause of
Ms. Dhanji’s ongoing mild to moderate chronic depression.  I also find
that the break-up of her relationship took an emotional toll on Ms. Dhanji
and was a contributing factor to her depression from December 2014 through the
time Dr. Devlin saw her in late March 2015.

[89]        
I find that the defendant’s negligence is the principal cause of the
plaintiff’s ongoing depression.  I would attribute 80 per cent of her post-December
2014 depressive condition to the accident, and 20 per cent to non-tortious
factors, including the break-up of her relationship, for which the defendant is
not responsible.

MITIGATION

[90]        
The defendant submits that Ms. Dhanji’s damages should be reduced
for failure to mitigate.  Specifically, the defendant contends that the
plaintiff has failed to mitigate by:

(a) failing to follow the recommendations of Drs. Sampson
and O’Connor in early 2013 that she take psychological counselling for the
emotional consequences of her injuries;

(b) failing to follow the recommendations of Dr. Devlin
and Dr. O’Connor of late March 2015 that she take anti-depressant
medication; and

(c) failing
to maintain her exercise and active rehabilitation program through most of 2014
as recommended by her family doctors and Dr. O’Connor.

[91]        
In Chiu v. Chiu, 2002 BCCA 618 at para. 57, Low J.A. stated:

The onus is on the defendant to
prove that the plaintiff could have avoided all or a portion of his loss.  In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things:
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably.  These principles are found in Janiak
v. Ippolito, [1985] 1 S.C.R. 146.

[92]        
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 at para. 56, Garson J.A., for the Court, described the mitigation
test:

I would
describe the mitigation test as a subjective/objective test. That is whether
the reasonable patient, having all the information at hand that the plaintiff
possessed, ought reasonably to have undergone the recommended treatment. The
second aspect of the test is “the extent, if any to which the plaintiff’s
damages would have been reduced” by that treatment. The Turner
case, on which the trial judge relies, uses slightly different language than
this Court’s judgment in Chiu: “there is some likelihood that he or she would
have received substantial benefit from it …”.

[Emphasis
in original.]

[93]        
The authorities relied upon by the defendant include Qiao v. Buckley,
2008 BCSC 1782, where the court reduced the plaintiff’s non-pecuniary damages
by 30% for her failure to participate in counselling recommended by her family
doctor and psychiatrist; Salzmann (Litigation Guardian of) v. Bohmer, 2009
BCSC 1586, where non-pecuniary damages, damages for loss of earning capacity
and special damages were reduced by 20% for the plaintiff’s failure to pursue
conditioning and exercise programs; and Latuszek v. Bel-Air Taxi, [1992]
Ltd., 2009 BCSC 798, where the plaintiff’s damages were reduced by 40% for
failure to take anti-depression medication, or to exercise.

[94]        
The defendant contends that the plaintiff acted unreasonably in failing
to follow the recommendations made by Drs. Sampson and O’Connor in early 2013
that she take psychological counselling, and the recommendations of Drs. Devlin
and O’Connor made in late March 2015 that she take anti-depressant
medications.  The defendant must also establish, on the balance of
probabilities, that had Ms. Dhanji followed those recommendations her
damages would have been reduced.

[95]        
I will deal first with Ms. Dhanji’s failure to take anti-depressants. 
At page 3 of his report of March 27, 2015, Dr. O’Connor, after recommending
that the plaintiff see a psychologist and a treating psychiatrist, went on to
recommend that in the meantime, her family doctor could consider medication
that would help with both pain and mood "should there be a significant
wait for this consultation".

[96]        
Ms. Dhanji began the cognitive behavioural therapy recommended by
Drs. O’Connor and Devlin in the spring of 2015 and had completed four
sessions by the time of trial.

[97]        
The plaintiff testified that she did not wish to take anti-depressant
medications because she thought there was a stigma attached to their use and
because she found exercise to be effective in improving her mood.  While fear
of stigma would not, on its own, provide a fully informed reasonable patient
with a justification for declining anti-depressant medication, Ms. Dhanji
had previously realized an improvement in her mood from exercise.  Further,
Drs. Devlin and O’Connor both gave evidence that exercise is a recognized and effective
means of treating depression.

[98]        
The defendant has not shown the plaintiff acted unreasonably in
declining to use the anti-depressant medication recommended three months before
trial, in circumstances where she had embarked upon psychological counselling
and had resumed exercising.  Nor has the defendant shown that the use of anti-depressant
medications since late March 2015 would have reduced the plaintiff’s damages.

[99]        
Ms. Dhanji’s failure to follow the 2013 recommendations of
Drs. Sampson and O’Connor that she take psychological counselling is more
problematic.  Ms. Dhanji declined counselling when it was initially
recommended because she did not accept that her mood had been affected by her injuries. 
She was also concerned about what she perceived as the stigma of being treated
by a psychologist or psychiatrist; was reluctant to discuss her psychological
problems with others; and was also concerned about the cost of psychological or
psychiatric care.  She was unaware that psychiatric treatment would be
available through the Medical Services Plan and made no inquiries to determine
whether her employer’s extended benefits plan covers psychological services. 
In my view, none of the plaintiff’s concerns excuse her failure to obtain the
counselling recommended in 2013.

[100]     Ms. Dhanji
did pursue a vigorous active rehabilitation and exercise program through 2013
and realized some improvement to her mood while she was doing so.  When she stopped
exercising in 2014 both her physical symptoms and her mood regressed.

[101]     Dr. Devlin
thought that if the plaintiff had pursued the recommended counselling in 2013
she would "possibly be better".  That evidence, standing on its own,
would not discharge the defendant’s burden of proving that earlier attendance
at counseling would have reduced the plaintiff’s loss.  However, later in the
trial, the plaintiff, in cross-examination, agreed that counselling was
helpful, and said that she intended to continue the cognitive behavioral
therapy she had started in the spring of 2015.

[102]     As Dr.
Devlin explained, the purpose of cognitive behavioral therapy is to assist the
plaintiff in managing her chronic pain and to modify her perception of pain. 
Dr. O’Connor thought that if the plaintiff had followed his February 2013
recommendations, which included both physical conditioning and therapy with a
psychologist, she would have been better than she was by the time of trial.

[103]     On the
whole of this evidence, I am satisfied that the plaintiff’s failure to act on
the recommendations of Drs. Sampson and O’Connor of early 2013 that she attend
counselling was unreasonable, and that had she done so she would have
benefitted by some reduction of her loss.  Bearing in mind that Ms. Dhanji
failed to mitigate by delaying a recommended treatment, rather than refusing to
take counselling at all, I assess the appropriate reduction of the plaintiff’s
non-pecuniary damages at 10%.

[104]     The
defendant also urges that Ms. Dhanji failed to mitigate when she abandoned
her active rehabilitation and exercise program between March and December
2014.  In cross-examination, Dr. O’Connor testified that if Ms. Dhanji
had continued her exercise and conditioning through 2014 she would probably
have had some improvement in her back pain and neck symptoms.  Later in his
cross-examination, Dr. O’Connor said that only a very small percentage of
people are able to exercise, as the plaintiff had done through 2013 and early
2014, for one and a half hours four times a week.  In his second report, Dr. O’Connor
noted that most patients have difficulty maintaining a continuous exercise
program, and that there are varying times in everybody’s life when priorities
change.  Ms. Dhanji had diligently followed Dr. O’Connor’s
recommendation that she increase the frequency and intensity of her exercises
for about one year by the time her relationship with her boyfriend in
Abbotsford became serious.  At 38 she wanted to form a long-term relationship,
and to start a family.  As Ms. Dhanji testified, she decided to make her
relationship a priority.  Several times a week, after working a 9-hour day at
the forensic lab in Vancouver, she commuted to Abbotsford.  Ms. Dhanji
lacked the time to maintain her exercise regime while she pursued what she
hoped would become a permanent relationship.  After that relationship ended
suddenly in December 2014, she started to exercise again.  In the particular circumstances
of this case, I am not persuaded that the plaintiff’s choice to give priority
to her relationship was unreasonable.  Ms. Dhanji was not required to meet a
standard of perfection in her efforts to mitigate her damages.  Since that
relationship has ended, she has renewed her efforts to improve her
conditioning.  The defendant has not established that Ms. Dhanji failed to
mitigate her damages by stopping her exercise and conditioning program during
her relationship.

ASSESSMENT OF DAMAGES

Non-Pecuniary damages

The Law

[105]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life, and loss of amenities.  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.

[106]     In Stapley
v. Hejslet, 2006 BCCA 34 at para. 46, the Court identified a non-exhaustive
list of the factors to be considered when assessing non-pecuniary damages. 
They include the age of the plaintiff; the nature of the injuries; severity and
duration of the pain; disability; emotional suffering; loss or impairments of
life; impairment of family, marital and social relationships; impairment of
physical and mental abilities; and loss of lifestyle.

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

[108]     The
plaintiff is 39 years old.  As a result of the soft tissue injuries she sustained
in the accident, Ms. Dhanji has experienced constant back pain, usually of mild
to moderate intensity, but at times severe.  While her low back pain had
substantially resolved within 14 months of the accident, she continues to
suffer from neck pain, which at times is severe.  According to Dr. O’Connor,
whose opinion I accept, the plaintiff will probably experience mild to
occasionally moderate mid back pain indefinitely.  If she is able to maintain
an active exercise regime, and improve her mood through the treatment of her
depression, she may realize some reduction in pain.  There is however a very
real chance that if her mood and conditioning do not improve, her pain may persist
in the moderate to occasionally severe range.  It is more probable than not
that Ms. Dhanji will have to cope with mild to occasionally moderate chronic mid
back pain throughout her life.

[109]      As a
result of her chronic pain, the plaintiff has experienced persistent mild to
moderate depression since the accident.  With the benefit of psychological
counselling there will likely be some improvement in the plaintiff’s mood, and
her ability to manage her pain.  However, given the persistence of her symptoms
of depression over the past three and a half years, there is a real possibility
that she will experience intermittent bouts of depression or low mood
indefinitely.

[110]     The pain
and discomfort the plaintiff experiences during prolonged periods of sitting
required her to undertake a graduated return to work over a six-month period. Ms.
Dhanji is capable of working full-time with the accommodations available to her
at the forensic lab.  Through the use of an ergonomic chair, the application of
heat, and taking short breaks during long periods of sitting, she is able to
manage the pain and discomfort she experiences during the workday. However, by
the end of the week she is fatigued and requires the weekends to recover.  Ms.
Dhanji is resilient and dedicated to her work.  However, the pain and
discomfort she experiences during the work day have diminished her enjoyment of
her work.

[111]     While the
plaintiff’s contact with some of her friends has reduced as a result of changes
in their lives, I find Ms. Dhanji’s chronic mid back and neck pain has also
impaired her social life.  As a result of her fatigue, she tends to stay at
home more on the weekends.  Her friends, Ms. Woodall, Ms. Hutchinson and Ms. Ostenall
all corroborated Ms. Dhanji’s evidence that she has been less outgoing since
the accident.  Although she continues to host dinners from time to time, and to
travel with her friends, she does so at a diminished level.

[112]     With
respect to physical activities, she is capable of exercising but her tolerance
for repetitive activities involving the use of her shoulders and arms is reduced.
Her recreational activities are restricted.  Ms. Dhanji no longer hikes.  She
found that activity aggravated her back pain.

[113]     Although
the plaintiff is unable to complete all of the tasks involved in cleaning her
condominium in a single day, as she did for before the accident, she is able to
cope with her housekeeping by spreading the cleaning over the week.  At the
time of trial, Ms. Dhanji found that heavier tasks, such scrubbing floor tiles
or mopping, tended to aggravate her symptoms.

[114]     Ms. Dhanji
has also reduced her attendance at mosque, due to the discomfort she experiences
in sitting on the floor for prayers and meditation.

[115]     The plaintiff
continues to enjoy a close relationship with her parents but worries that her
chronic pain may restrict her in assisting with their care as they age.

[116]     Ms. Dhanji
is a stoic individual who is endeavouring to cope with her chronic mid back and
neck pain.  She is frustrated and depressed by the persistence of her symptoms.
Although she is able to cope, with some pain and discomfort, with the demands
of her position as a DNA analyst, she has suffered some impairment of lifestyle.

[117]     In support
of her submission that the appropriate award of non-pecuniary damages in this
case would be $120,000, Ms. Dhanji relies on Eccleston v. Dresen,
2009 BCSC 332, McCarthy v. Davies, 2014 BCSC 1498, Fox v. Danis,
2005 BCSC 102, aff’d 2006 BCCA 324 and Chahal v. Righele, 2014 BCSC
1086.

[118]     The defendant
referred to Brousseau v. ICBC, 2012 BCSC 1676, Lourenco v.
Pham, 2013 BCSC 2090, Singh v. Borejszo, 2013 BCSC 1584, Wepryk
v. Juraschka, 2012 BCSC 974, Hay v. Benzer, 2014 BCSC 1522, Amini
v. Mondragaon, 2014 BCSC 1590, MacDonald v. Kemp, 2014 BCSC 1079, Redl
v. Sellin, 2013 BCSC 581 and Brunelle v. Yoshida , 2014 BCSC 1006 in
arguing that the appropriate range for non-pecuniary damages here is between $50,000
and $60,000.

[119]     The cases
cited by the plaintiff involve injuries more serious than those suffered by Ms. Dhanji.
In McCarthy, where the plaintiff was awarded $100,000 in non-pecuniary
damages, she suffered soft tissue injuries to her neck, shoulder and back in a
motor vehicle accident that prevented her from returning to work as a
registered nurse.  In Fox, the 34-year-old female plaintiff received an
award of $100,000 for non-pecuniary damages.  She sustained permanent injuries
to her neck and lumbar spine, including permanent nerve damage to her lower
back.  In Chahal, the 46-year-old female plaintiff was awarded non-pecuniary
damages of $120,000.  In addition to back pain and headaches that were unlikely
to improve, the plaintiff suffered psychological injuries including a major depressive
disorder, post-traumatic stress disorder and a panic disorder with agoraphobia.
Her psychological injuries appear to have been significantly worse than those
suffered by Ms. Dhanji.

[120]     The defendant
has referred to a number of authorities which bear some similarity to this
case.  In Lourenco, the 22-year-old female plaintiff was struck by the
defendant’s Honda Civic vehicle while walking in a crosswalk.  She suffered
soft tissue injuries and pain in her neck, back, elbows, knees and buttocks.  Her
neck and back pain continued three and a half years after the accident.  Her
family doctor diagnosed chronic pain.  She was awarded $50,000 for non-pecuniary
damages.  While the plaintiff complained about anxiety, her psychological
injuries, which did not include a depressive disorder, were less significant
than those of Ms. Dhanji.

[121]     In Hay,
the court awarded a 19-year-old female plaintiff $55,000 for non-pecuniary damages.
The plaintiff, a pedestrian, was struck by a truck, and was thrown about a
foot or a foot and a half into the air before falling on her tailbone and hitting
her head on the pavement.  She suffered soft tissue injuries and chronic pain
in her neck, back, shoulders and tailbone, as well as headaches and sleep
disruption that continued five and a half years after the accident. The trial judge
also found she experienced increased anxiety and “lasting psychological effects”.

[122]     In Redl,
the 41-year-old female plaintiff was awarded $55,000 as damages for pain and
suffering.  She sustained pain in her neck, shoulder, arm, back and hip,
headaches, and suffered from chronic pain disorder at the time of trial, four
years after the accident.  Her ongoing complaints included a stiff neck that
troubled her almost daily, intermittent low and mid back pain and occasional
headaches.  The trial judge characterized her chronic pain syndrome as falling
at the lower end of the spectrum of severity.  In the instant case, Ms. Dhanji
experiences constant mid back pain.  As I have previously noted, while she has
managed to cope with her chronic pain at work, her enjoyment of her work has
been diminished.

[123]     Finally, in
Brunelle, the 26-year-old female plaintiff sustained soft tissue
injuries and pain in her back and neck, headaches, disrupted sleep, and
depression. While her symptoms were ongoing at the time of trial, they had not
prevented her from engaging in sporting or recreational activities. The trial judge
found that the plaintiff was not seriously impeded in her ability to enjoy most
of life’s activities or to remain fully employed.  In Brunelle, the
plaintiff was awarded non-pecuniary damages of $60,000.

[124]     Taking
into account the plaintiff’s particular circumstances; all of the Stapley
factors, including the probability that the plaintiff will live with chronic
mid back pain indefinitely; my finding that her depression is largely but not
entirely caused by the defendant’s negligence; and after considering all of the
authorities cited by counsel, I assess the plaintiff’s damages for pain and
suffering and loss of enjoyment of life in the amount of $75,000.  I reduce that
amount by 10% for the plaintiff’s failure to mitigate and award Ms. Dhanji non-pecuniary
damages of $67,500.

Past Loss of Earning Capacity

[125]     Compensation
for past loss of earning capacity is based on what the plaintiff would have,
not could have, earned but for the injury she sustained: Rowe v. Bobell
Express Ltd., 2005 BCCA 141; M.B. v. British Columbia, 2003 SCC 53.

[126]     Under
s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, a
plaintiff is entitled to recover damages only for his or her past net income
loss.  This means that in the ordinary course, the court must deduct the amount
of income tax payable from lost gross earnings: Hudniuk v. Warkentin,
2003 BCSC 62; Lines v. Gordon, 2009 BCCA 106.

[127]     The burden
of proof of actual past events is a balance of probabilities.  An assessment of
loss of both past and future earning capacity involves consideration of hypothetical
events.  The plaintiff is not required to prove these hypothetical events on
the balance of probabilities.  The future or hypothetical possibility will be
taken into consideration as long as it is a real and substantial possibility
and not mere speculation: Athey v. Leonati at para. 27.

[128]     On a claim
for past loss of earning capacity, the plaintiff must first establish on a
balance of probabilities that the injuries she sustained caused an impairment
of her earning capacity.  Then, in determining what might have happened in the
past to enable the plaintiff to earn income, but for the accident, the court
must decide if the event was a real and substantial possibility and then
determine the likelihood of it occurring: Smith v. Knudsen, 2004 BCCA
613 at paras. 28, 29, 36 and 37.

[129]     The
plaintiff claims that but for the accident, she would have earned an additional
$21,400 in overtime between November 22, 2011 and the commencement of the trial
on June 22, 2015.  In addition, she says she lost the opportunity for a
six-week temporary appointment to a supervisory position in the summer of 2012
which would have generated an additional $596 in gross income.

[130]     At the
time of the accident, the plaintiff’s salary as a DNA analyst was $62,009.  Her
salary increased to $64,491 in December 2011.  Since then she has received a
series of pay increments.  Her current salary is $67,936.

[131]     Because
the plaintiff is entitled to unlimited paid sick days, she was paid her full
salary during the period she was off work between November 22, 2011 and March
6, 2012, and during her graduated return to a regular 40-hour work week between
March 2012 and November 2012.

[132]     I am
satisfied that but for the injuries the plaintiff sustained in the accident,
and in particular her persistent back pain, the plaintiff would have earned
additional income between November 22, 2011 and the time of trial.

[133]     Dealing
first with the loss of opportunity to obtain the temporary supervisory
assignment, Ms. Dhanji’s supervisor, Dr. Horley, testified the
plaintiff would have been offered the position, but was passed over because
senior management determined that they could not have a person on a graduated
return to work fill the supervisory position.

[134]     For the
six-week temporary assignment in July and August 2012, Ms. Dhanji would
have been paid based on an annual salary of $71,787 instead of her DNA
analyst’s salary at the time of $66,604.  The plaintiff and the defendant
agree, and I find, that Ms. Dhanji lost the opportunity to earn an
additional $596.04 for the six-week temporary assignment.  As required by
s. 98 of the Insurance (Vehicle) Act that gross amount must be
reduced by 17% to $494.72, based on the plaintiff’s 2012 tax return.

[135]     I turn
next to the plaintiff’s claim for lost overtime.

[136]     In each of
the two full years before the accident, Ms. Dhanji worked an average of
101 hours of overtime.  Both Dr. Horley, and Mr. Hiron Poon, Ms. Dhanji’s
current supervisor, testified that weekend overtime shifts paid at double time
were available to the time of trial, and remain available.  I find that but for
the injuries Ms. Dhanji sustained in the accident, she would have worked more
overtime.

[137]     Based on
101 hours per year, at the applicable double-time rates for 2012 through 2014,
and an additional 50 hours for January 1 to June 22, 2015, I find that the
maximum amount the plaintiff could claim for past loss of overtime to the date
of trial would be $22,518.  That amount is the sum of the overtime notionally
available to the plaintiff from January 1, 2012 to  June 22, 2015, calculated
for each year by multiplying the overtime hours by double the plaintiff’s
straight time hourly rate of pay.  The applicable straight time rates are
conveniently summarized at para. 124 of the defendant’s written
submissions.

[138]      I accept
the defendant’s submission that because the plaintiff missed eight weeks from
work in 2012 for ankle surgery (representing 15% of 2012), she would not have
worked overtime during that period, if the accident had not occurred.   Adopting
the defendant’s calculations, the plaintiff’s claim for overtime for 2012 must
be reduced by 15% or $936.30.  There must also be deductions for the occasional
overtime actually worked by the plaintiff in 2013 and 2015, totalling
$2,518.74.

[139]     Ms. Dhanji
worked no overtime in 2014.  The plaintiff gave evidence that while she was
devoting her time to her relationship with her partner in Abbotsford between
March and December 2014, she was not available to work overtime on the
weekends.  I find that there is no real and substantial possibility that, but
for the accident, Ms. Dhanji would have worked overtime between March and
December 2014, which accounts for 83% of that year.  Accordingly, the amount
for 2014 overtime must be reduced by 83%, or $5,456.42.

[140]     The result
is a reduction from the “maximum” overtime claim of $22,518 of $8,910.46,
leaving a gross amount of $13,607.54.  Taking into account the plaintiff’s tax
rates for the period in question, that amount, which I round to $13,600, must
be reduced by 18% to $11,152.  Adding the net amount of the plaintiff’s
recovery for loss of opportunity to serve in the acting supervisor’s position,
I assess the plaintiff’s damages for past loss of earning capacity in the
amount of $11,650.

[141]     The
plaintiff’s capacity to work overtime shifts before trial was impaired by her
back pain.  The defendant has not shown that Ms. Dhanji would have reduced her
loss of overtime had she obtained psychological counselling when it was first
recommended in early 2013. There will be no reduction of the award for past
loss of earning capacity.

Loss of Future Earning Capacity

[142]         
The
standard of proof for the evaluation of hypothetical events that may affect an
award of damages for future loss of earning capacity is simple probability,
rather than the balance of probabilities: Athey v. Leonati.  As the
Court of Appeal held in Rosvold v. Dunlop, 2001 BCCA 1 at para. 9:

[9]
… Possibilities and probabilities, chances, opportunities and risks must all
be considered, so long as they are a real and substantial possibility and not
mere speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.

[143]         
In
Rosvold at paras. 10 and 11, the Court of Appeal described the task
of the trial judge as follows:

[10]      The
trial judge’s task is to assess the loss on a judgmental basis, taking into
consideration all the relevant factors arising from the evidence: Mazzuca v.
Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.) at para. 121, aff’d
[1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors may be
relevant can be found in Parypa v. Wickware, supra, at para. 31;
Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J.  They include:

[1]  whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

[2]  whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

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

[4]  whether
the plaintiff is less valuable to himself as a person capable of earning income
in a competitive labour market.

[11]      The
task of the court is to assess damages, not to calculate them according to some
mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning
capacity as a capital asset has been established, that impairment must be
valued. The valuation may involve a comparison of the likely future of the
plaintiff if the accident had not happened with the plaintiff’s likely future
after the accident has happened. As a starting point, a trial judge may
determine the present value of the difference between the amounts earned under
those two scenarios. But if this is done, it is not to be the end of the
inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644
(C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness
and reasonableness of the award must be considered taking into account all the
evidence.

[144]         
In
Perren v. Lalari, 2010 BCCA 140, Garson J.A., after reviewing the
authorities, identified the basic principles articulated in Athey and Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, as:

1. 
A future or hypothetical possibility will be taken into consideration as long
as it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and

2. 
It is not loss of earnings, but, rather, loss of earning capacity for which
compensation must be made [Andrews at 251].

[145]     As Garson
J.A. emphasized in Perren at para. 32, the plaintiff must always
prove there is a real and substantial possibility of a future event leading to
an income loss.  If the plaintiff meets that burden, then the plaintiff may
prove the quantification of the loss of earning capacity on either an earnings
approach or a capital asset approach.  Where the loss is readily measurable,
the earnings approach will be more useful than the capital assets approach.

[146]     I must
first determine whether the plaintiff has established a real and substantial
possibility of a future event leading to an income loss.  If so, the court must
assess, rather than calculate damages according to the likelihood of the event
occurring.  The award must be adjusted for both positive and negative
contingencies, and the court must consider the overall fairness and
reasonableness of the award: Rosvold at para. 11.

Positions of the Parties on Future Loss of Income Earning
Capacity

[147]     The
plaintiff contends that her chronic back and neck pain have rendered her less
competitively employable and have restricted her opportunities for promotion
within the RCMP forensic lab service. She claims $250,000 for her loss of
future earning capacity.

[148]      In support
of that claim, the plaintiff offers three scenarios.  The first is a measure of
her loss of overtime, assuming she remained in her present position as a T2 Biology
Analyst until retirement at age 65.  In the two years before the accident, the
plaintiff earned an average of $6,640 per year of overtime.  Assuming she
continues to work overtime at her current post accident level of one or two
overtime shifts per year, her annual loss of overtime pay would be
approximately $6,000.  Applying Mr. Carson’s income loss multipliers, the
present value of lost overtime to age 65 would be $126,534.

[149]     The
plaintiff’s second scenario assumes that but for the accident Ms. Dhanji would
have been promoted to the position of an S2 Reporting Scientist.  Using the
difference of $8,320.50 per year between Ms. Dhanji’s current T2 salary and the
median income for the S2 position of $76,256.50, and applying the income loss
multiplier to age 65, the plaintiff calculates the present value of her loss in
the amount of $175,460. Because reporting scientists also have the opportunity
to work overtime shifts, the plaintiff also claims for lost overtime at an S2
double-time rate of $73.32 per hour.  Assuming Ms. Dhanji would have worked eight
hours of overtime per month to age 65, the plaintiff estimates the present
value of lost overtime in the S2 position at $148,445.80.  Under the second
scenario, the plaintiff says the present value of her combined loss of salary
and overtime would be $323,906.

[150]     The
plaintiff’s third scenario assumes that but for the accident Ms. Dhanji would
have been promoted to the position of T4 Instrument Technologist.  Making the
same assumptions as in the previous example concerning the hours of overtime
lost per month and taking into account the difference of $11,623 per year
between Ms. Dhanji’s current salary and the median salary for the T4 position of
$79,559, the plaintiff estimates her combined loss of salary and overtime to
age 65 at approximately $400,000.

[151]     Allowing
for the positive contingency that her condition may improve, the plaintiff submits
that $250,000 would be a fair award for her loss of future earning capacity.

[152]     The
defendant submits that other than some limited loss of overtime, there is no
real and substantial possibility of a future loss of earnings caused by the
accident. While there is some possibility the plaintiff may occasionally miss
work as a result of flare-ups of her pain, she will incur no income loss
because she has unlimited sick leave.  Further, if Ms. Dhanji takes the
recommended conditioning and psychological treatment, her condition may
continue to improve, enabling her to gradually increase the amount of overtime
she works. The defendant also contends that any impairment of the plaintiff’s
future earning capacity is partially the result of her failure to mitigate.

[153]     In addition,
the defendant says that the plaintiff’s injury will not prevent her from being
considered for promotion and that she remains a valued employee of the RCMP.  The
defendant argues that there are very few higher paying positions available at
the forensic lab and that Ms. Dhanji’s prospects for promotion are both very
low and unchanged by the accident.  The defendant’s position is that any award
for loss of future earning capacity should be limited to a modest amount for
lost overtime.

Discussion and Analysis of Future Loss of Earning
Capacity

[154]     Since
November 2012, Ms. Dhanji has managed, with some accommodations, to perform all
of the duties of her position as a DNA analyst over her regular work weeks of
between 36 and 45 hours.  She experiences some discomfort and is fatigued by the
end of the week. Since the accident, and principally as a result of her chronic
mid back and neck pain, she has lost overtime work which but for the accident,
would have been available to her.  I have accepted Dr. O’Connor’s opinion
that it is probable that her chronic pain will persist and will trouble her indefinitely
from a mild to occasionally moderate extent. There is also a real chance that
her depression and deconditioning may not improve and that her pain may persist
at the moderate to occasionally severe level.  It is likely that her continuing
mid back pain will at times limit her tolerance for prolonged sitting and
repetitive activities involving her shoulders and arms, and also induce fatigue,
thereby limiting her capacity to work weekend overtime shifts.  I find there is
a real and substantial possibility that the plaintiff’s chronic pain will in
the future impair her capacity to work overtime and thereby lead to an income
loss.

[155]     Had the
accident not occurred, the plaintiff, who is devoted to her work as a DNA
analyst, would most likely have continued to work at the forensic lab until
retirement at age 65.  She would have sought to take advantage of any
opportunities for promotion.

[156]     Dr.
O’Connor believes that it is more likely than not that the plaintiff will
maintain her employment. Ms. Dhanji remains committed to her work. I find that
it is most likely that the plaintiff will continue to work at the forensic lab
until she retires at age 65.

[157]     There is a
chance that some point in the future, the plaintiff might be laid off, or have
her employment terminated as a result of a reorganization by her employer. I
rate that chance as very small, given the plaintiff’s seniority, the nature of
her work and the high regard in which she is held by her employer.  If the
plaintiff were laid off, it might take her longer to find new employment than
other employees who are able to function without any limits imposed by chronic
pain.

[158]     Dr. Horley,
who supervised Ms. Dhanji from 2008 until December 2014, confirmed that the
plaintiff is able to satisfactorily perform all of her duties as a DNA analyst.
She regards Ms. Dhanji as a valuable employee. The plaintiff’s friend and
colleague, Ms. Ostenall, also gave evidence that Ms. Dhanji is able to do all
the work assigned to her, with breaks.

[159]     At the
time of trial, Ms. Dhanji, who is qualified to perform manual DNA analysis, was
cross-training in robotic DNA sampling.  She expected to successfully complete
that training shortly after the trial.  When qualified, she will be able to
perform the full range of manual and robotic DNA sampling work, which will
enhance her value to her employer.

[160]     Dr. Horley
testified that the plaintiff currently lacks the strength and endurance to
perform the duties of the T4 instrument technologist position.  That work
involves the maintenance of robotic equipment.  Instrument technologists must
be able to lift the robotic arm and twist and manoeuvre their bodies in order
to work inside the robotic devices.

[161]     Reporting
scientists are responsible for analysing DNA profiles, writing reports, and if a
case goes to trial, testifying in court.  The work is largely sedentary.
However employees are able to take breaks as required.  Unlike DNA analysts,
research scientists are not required to work for prolonged periods bent over a
lab bench.  The plaintiff is physically capable, with the workplace
accommodations available to her, of performing the duties of a research
scientist.

[162]     Opportunities
for promotion within the RCMP forensic lab service are limited. Few instrument
technologist or research scientist positions become available each year.  Dr. Horley
testified that only one or two research scientist positions open up each year.  Promotions
are highly competitive.  The positions are posted internally and are open to
RCMP employees across Canada.  Seniority, education, training, performance on
tests designed to emulate the requirements of the position and an interview are
all taken into account in the selection process.  Ms. Dhanji is now one of
the most senior DNA analysts in the Vancouver forensic lab.  The time she has
missed from work since the accident has not affected her seniority.

[163]     Absent the
accident, Ms. Dhanji had a chance for promotion to an instrument technologist
position, although her opportunities for obtaining that position were limited,
and far from certain.  As a result of the accident, she is at present unable to
meet the physical requirements for the position.  If she is able to maintain
and benefit from her conditioning program, there is a possibility that her
chronic pain may be reduced to a mild level, such that she would be able to
meet the requirements of the instrument technologist position.  However, there
is the real possibility that her chronic pain may persist at a level which
would preclude her eligibility for that promotion. I find that the plaintiff’s
already limited opportunity for promotion to the position of instrument
technologist has been diminished, but not eliminated by the injuries she
sustained in the accident.  I also find that the plaintiff’s prospects for
future promotion as a research scientist have not been impaired by the
accident.

[164]     There is a
real and substantial possibility that with conditioning and psychological
therapy, the plaintiff may realize improvement in her mood and a reduction of
her chronic pain enabling her to increase her overtime hours. I must also take
into account the contingency that Ms. Dhanji may not experience improvement to
her chronic pain and that her mid back pain may persist at the moderate to
occasionally severe level, and continue to limit her capacity to work overtime
shifts.  There may also be times when for reasons unrelated to the accident the
plaintiff chooses not to work overtime as frequently as she did before the
accident.  As we have seen, for most of 2014, Ms. Dhanji chose not to work any
overtime in order to spend weekends with her partner.  Ms. Dhanji wants a
permanent relationship and would like to have children.  There is a real
possibility that there will be periods when she is either unable or unwilling
to work weekend overtime shifts due to other demands or priorities in her life.

[165]     The
plaintiff’s estimate of lost overtime to age 65 in her current T2 biology
analyst’s position provides a starting point for the assessment of her loss of
future earning capacity.  That estimate assumes that but for the accident the
plaintiff would have worked the same amount of overtime as she did before
November 22, 2011 each year until her retirement.  In addition to the
contingencies I have already discussed, there is a real possibility that as the
plaintiff aged, in the years approaching her retirement, she would have reduced
her overtime in any event. Taking into account all of the contingencies, both
positive and negative, I find that the plaintiff, but for the accident,
probably would have worked about 50% of the overtime she has claimed. That
would reduce her claim for the present value of lost overtime at the T2
position to about $63,000.  However, I must also take into account the
contingency that the plaintiff will earn promotion to a research scientist
position but may be unable to work overtime at her pre-accident level.  In that
case, her loss of earning capacity will be greater than if she continues in the
DNA analyst position until her retirement.  I must also bear in mind that Ms.
Dhanji has incurred some loss of earning capacity as a result of the impairment
of her already limited prospect for promotion to an instrument technologist
position.

[166]     Taking all
of these factors into account, and recognizing that the award must be fair to
both parties, I would assess the plaintiff’s damages for loss of future earning
capacity in the amount of $90,000.

[167]     I would
not reduce the award for the plaintiff’s failure to take psychological
counseling when it was first recommended in 2013.  The plaintiff’s loss of
future earning capacity flows from her persistent back and neck pain. She has
resumed her conditioning exercises. While her chronic pain is affected by her
mood, Ms. Dhanji is now receiving cognitive behavioral therapy, and intends to
continue that treatment.  The defendant has not shown that the plaintiff would
have reduced her future loss of earning capacity had she not delayed her
psychological therapy.

Cost of Future Care

[168]     Claims for
cost of future care must be medically justified and reasonable.  The award of
damages must be moderate and fair to both parties: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.) at para. 210.

[169]     In Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at paras. 21-22 McLachlin
C.J. stated:

21        Damages for cost of future care are a matter of
prediction.  No one knows the future.  Yet the rule that damages must be
assessed once and for all at the time of trial (subject to modification on
appeal) requires courts to peer into the future and fix the damages for future
care as best they can.  In doing so, courts rely on the evidence as to what
care is likely to be in the injured person’s best interest.  Then they
calculate the present cost of providing that care and may make an adjustment
for the contingency that the future may differ from what the evidence at trial
indicates.

22        The resulting award may
be said to reflect the reasonable or normal expectations of what the injured
person will require.  Jane Stapleton, "The Normal Expectancies Measure
in Tort Damages" (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58,
that the tort measure of compensatory damages may be described as the "’normal
expectancies’ measure", a term which "more clearly describes the aim
of awards of compensatory damages in tort: namely, to re-position the plaintiff
to the destination he would normally have reached . . . had it not been for the
tort". The measure is objective, based on the evidence.  This method
produces a result fair to both the claimant and the defendant.  The claimant
receives damages for future losses, as best they can be ascertained.  The
defendant is required to compensate for those losses.  To award less than what
may reasonably be expected to be required is to give the plaintiff too little
and unfairly advantage the defendant.  To award more is to give the plaintiff a
windfall and require the defendant to pay more than is fair.

[170]     Relying
upon the recommendations of Drs. Devlin and O’Connor, the plaintiff claims
costs of future care for cognitive behavioural therapy, assessment at a pain
clinic, the costs of a gym membership and the assistance of a personal trainer
or kinesiologist to help her in maintaining the strength and conditioning
program recommended by Dr. O’Connor, and the cost of help with home cleaning
and maintenance tasks.  The plaintiff testified she did not intend to take anti-depressant
medications.  Accordingly, no claim is advanced for the costs of medication.

  Cognitive
Behavioural Therapy

[171]     Dr. Devlin
recommended 25 to 30 sessions of this psychological therapy to assist the
plaintiff in coping with chronic pain.  Ms. Dhanji had taken four sessions at a
cost of $185 per session by the time of trial.  The cost of a further 25
sessions is $4,625.  The defendant submits that there should be a deduction
from any amount assessed for cognitive behavioural therapy to reflect the fact
that Ms. Dhanji is eligible to claim up to $2,000 for the cost of therapy from
her extended health plan.  The plaintiff’s group insurer has a subrogated claim
for amounts paid to treat injuries sustained by the plaintiff in the accident.  In
these circumstances, it is not appropriate to make the deduction sought by the
defendant.  I assess the cost for psychological therapy in the amount of $4,625.

  The Pain Clinic

[172]     Dr. Devlin
thought the plaintiff would benefit from a full assessment by a pain clinic,
where she would receive a multi-disciplinary assessment from a range of
treatment providers, including occupational therapists and kinesiologists.  He
thought $8,000 was a conservative estimate of the cost of that service.  Ms.
Dhanji said she would pursue that treatment to help her cope with her pain.  I
find that assessment at a pain clinic is medically justified and that the cost
of this treatment as estimated by Dr. Devlin is reasonable.  Accordingly, I
would allow this item in the amount of $8,000.

  Gym Membership and Personal Trainer

[173]     Dr.
O’Connor recommended a strength and conditioning program for the plaintiff’s
neck and shoulder girdle, and thought that an ongoing exercise program would
likely assist the plaintiff in improving her mood and conditioning, and
reducing the level of her chronic pain.  When Ms. Dhanji attended the Performance
Institute for her active rehabilitation program in 2012, her gym membership
cost $500 per year.  Using an annual cost of $500 and Mr. Carson’s cost of care
multiplier, the plaintiff claims the present value of the cost of a gym
membership for the remainder of her expected life in the amount of $14,846.  I
accept $500 as a reasonable cost for an annual gym membership.  As the
plaintiff ages, her attendance at the gym may decline.  Later in life, medical
conditions unrelated to the accident may prevent her from exercising.  In my
view, there is a real and substantial possibility that the plaintiff will use the
gym membership to assist in the management of her back and neck symptoms to age
70.  The present value of a $500 annual gym membership to age 70 is $11,506.  However
there are other contingencies that I must take into account.  There may be
periods when the plaintiff does not attend the gym as a result of other demands
upon her time.  As Dr. O’Connor pointed out, most patients “fall off the wagon”
and have a very difficult time maintaining a continuous exercise program.  There
is also the possibility that the plaintiff may suspend or terminate her
exercises if her chronic pain improves significantly.  I find that the cost of
a gym membership is medically justified.  However, taking into account all of the
contingencies, both positive and negative, I assess the reasonable cost of this
item at $6,000.

[174]     With respect
to Dr. O’Connor’s recommendation that Ms. Dhanji have help from a personal
trainer or kinesiologist every three to five years in order to adjust her
exercise programs, I note that the plaintiff has already worked extensively with
a kinesiologist.  Further, she will receive additional assistance from a
kinesiologist as part of her treatment at the pain clinic.  With the personal
training and kinesiology the plaintiff has already received, and will receive
from the pain clinic, she should be able to manage her own exercise program.  I
am not persuaded that the cost of additional kinesiology is justified and
reasonable.  Accordingly, I make no award for further personal training or
kinesiology.

Homemaking
Assistance

[175]     Ms. Dhanji
also claims for the cost of homemaking assistance for the remainder of her life
in the amount of $22,269.75.  The amount claimed is the present value of 30
hours of homemaking assistance per year at the rate of $30 per hour to age 85.  Dr.
O’Connor thought Ms. Dhanji might need some assistance with lighter chores
during flare-ups of her symptoms, and that the plaintiff would require some
help with heavy seasonal activities such as heavy yard work or seasonable
garden or home cleanup.  Ms. Dhanji has managed to perform her housekeeping
chores since the accident, albeit with some pain and discomfort, by spreading
them over the week. From the time of the accident to trial, she coped without
hiring any help.  However she said that her standard of general upkeep had
fallen from what it was before the accident.  At present, she resides in a
condominium and is not required to perform any of the heavy yard work or home
maintenance tasks contemplated by Dr. O’Connor.

[176]     There is a
real possibility that the plaintiff will experience occasional flare-ups of
moderate to severe pain that impair her capacity to perform repetitive tasks
such as vacuuming or mopping the floor. There is also the chance that in the
future she may own a home and require occasional assistance with seasonal yard
work and maintenance.  Conversely, there is a real possibility that Ms. Dhanji
may share a home with a partner who is prepared to take on the heavier tasks as
part of the normal give-and-take of a relationship.  The plaintiff’s needs for
housekeeping assistance may also vary from year to year and may decline if her
condition improves to the point where she only experiences mild chronic pain with
occasional flare-ups of moderate pain.  There is also the possibility that in
old age she may require housekeeping assistance for reasons unrelated to the
accident.

[177]     Taking all
of these factors into account, I find that some limited provision for housekeeping
costs is medically justified.  I accept the plaintiff’s evidence that
homemaking services are available at costs ranging from $20-$30 per hour. 
Weighing all of the contingencies, and the plaintiff’s demonstrated capacity to
manage most housekeeping tasks most of the time, I find that Ms. Dhanji will
probably require considerably less assistance than that proposed by her
counsel. Doing the best that I can, I would allow roughly one third of the
amount claimed.  I assess the plaintiff’s future housekeeping costs in the
amount of $7000.

[178]     For those
items which I have found to be medically justified and reasonable, I assess the
plaintiff’s damages for costs of future care in the total amount of $25,625.

Special Damages

[179]     The
plaintiff is entitled to recover reasonable out-of-pocket expenses incurred as
a result of the accident in order to restore her to the position she would have
been in had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281;
Milina v. Bartsch at para. 170.

[180]     The
plaintiff claims special damages of $7,202.87 for out-of-pocket expenses
incurred for drugs, gym passes, ambulance services and fees for physiotherapy,
massage therapy and counselling. Her special damages claim includes $2,115 for
25 massage therapy treatments.

[181]     The
plaintiff told Dr. O’Connor that before the accident she intermittently
attended massage therapy once or twice a month for "wear and tear". 
Her pattern and frequency of attendance was similar before and after the
accident.  The plaintiff also testified that she attended massage therapy
before the accident to take advantage of her extended health benefit, which
paid for some, but not all of her sessions.  The plaintiff has not established
that but for the accident she would not have incurred the costs for massage
therapy she now claims.  Accordingly, the claim for massage therapy is denied.
The plaintiff is awarded special damages in the amount of $5,087.87.

CONCLUSION

[182]     To
conclude, damages are awarded as follows:

Costs

[183]    
Unless there are matters which counsel wish to bring to the Court’s attention,
the plaintiff is entitled to costs of the action at Scale B, together with her
reasonable disbursements.  If necessary, counsel are at liberty to make written
submissions in respect of costs.

“PEARLMAN
J.”