IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150827

Docket: 95069

Registry:
Kelowna

Between:

Leah Kam

Plaintiff

And

Colin Van Keith

Defendant

Before: The Honourable Mr. Justice
Cole

Reasons for Judgment

ACCIDENT AND CIRCUMSTANCES

[1]           
On April 4, 2011, the plaintiff had stopped her car at a red light when
she was struck from behind by the defendant. She described the impact as being
very hard. She felt that she was hit by the defendant at “full speed” and
despite the fact that her foot was on the brake, the car was pushed into the
intersection.

[2]           
Liability has been admitted. The plaintiff claims she sustained injuries
to her neck, upper and lower back, shoulders, she suffers from depression,
sleep disturbance, fatigue, headaches and has chronic pain. The defendant quite
properly concedes that the plaintiff’s credibility is not in issue. In addition
to the experts, the plaintiff called her husband, her sister-in-law, her mother
and two coworkers. All the evidence called on behalf of the plaintiff was from
credible witnesses.

[3]           
Prior to the accident, the plaintiff was a committed athlete. She was
active in many sports, played an average of two games of soccer a week, plus
two practices. She and her husband would go hiking in the wilderness, she
rollerbladed on the seawall, she played golf periodically, went swimming,
skiing, did pole-dancing, and was described by her husband as being driven,
enthusiastic, gung-ho, a practical joker with a large group of friends, and a
close family.

[4]           
Her mother and sister-in-law gave evidence and substantiated the
plaintiff’s gregarious personality and physical fitness. She and her mother
also took a trip to Scotland, and on another occasion to Nova Scotia. They
would also go shopping together.

[5]           
After the accident, the plaintiff’s life changed profoundly. She has
gained approximately 30 pounds, now suffers from low self-esteem, is concerned
about her body image, experiences anxiety when driving, car trips are now more
difficult as she now has to stop periodically even when going from Kelowna to
Kamloops to visit with her stepchildren.

[6]           
Her intimate relations with her husband are painful and difficult. She
has become isolated and not kept up with her friends or family. She has not
played competitive soccer, skiing, kickboxing, rollerblading, pole-dancing or
any intensive hiking. She can walk on flat surfaces but only for approximately a
half hour before stopping to rest. Although she loves her job, she returns home
exhausted and fatigued. The loss of enjoyment in her life has greatly affected
the quality of her life. She has attempted golfing but cannot golf for more
than three or four holes. Once she was off for a week because she hurt her back
while trying to tee off at the golf course with her husband.

[7]           
She can no longer do any of the heavy work around the house, such as
scrubbing the floors, bathrooms and vacuuming. Those jobs have been taken over
by her husband. They originally shared the household duties equally. She no
longer takes trips with her mother and sees her mother less often than before. She
feels depressed and hates even shopping for clothes because she does not like
the way she looks.

[8]           
Since the accident she has actively pursued treatment through her doctor
Dr. B.K. Eliason. She has, since March 20, 2012 until April 29,
2015, taken a total of 72 acupuncture treatments with a break between the November
26, 2013 and April 2, 2014 appointments when she attended, at the expense of
ICBC, an exercise worker program organized by a kinesiologist. ICBC refused to
pay for any further expenses relating to the kinesiologist but she has pursued
the techniques and programs developed by the kinesiologist and does weight training
and exercises at home and works out on a regular basis.

[9]           
In addition between April 13, 2011 and November 29, 2011 she has
attended 32 physiotherapy treatments, has purchased a pillow and an orthopedic
bed, and has a monthly pass at the YMCA.

[10]       
She has continued to work full-time. She is described by her employer as
an exemplary worker. She does the work of 1½ people and has only lost a few days’
work because of the accident. She is stoic and is dedicated to improving her
health. She has followed the directions of the medical professionals but she
has not had any significant improvement since the date of the accident save and
except that her headaches and shoulders were painful initially but gradually improved.
She continues to have lower back pain which restricts her from participating in
her normal daily activities.

[11]       
Dr. Apel specializes in physical medicine and rehabilitation. On
May 14, 2013, Dr. Apel notes that the plaintiff’s complaints related to
her lower back where she has daily pain on the right or left side and at worst
radiates to her tailbone. Prolonged sitting aggravates her symptoms. She still
had intermittent neck pain an average of twice weekly with occasional longer
and more severe flare ups, jerky movements and sustained sitting are aggravating
factors and on occasion upon aggravation of pain she had headaches. Dr. Apel
concluded that there was evidence of fibromyalgia which she felt pre-dated the
accident but was significantly aggravating and exacerbated by the motor vehicle
accident, that she had “Chronic regional myofascial pain syndrome … affecting
the pelvic region and pelvic floor muscles, worse on the left, and seems to be the
reason for clinically expressed mechanical lower back pain with ligamental
sacroiliac joint insufficiency bilaterally.” She also suffered from headaches
which seemed to be related to the “musculoskeletal/myofascial discomfort with
likely component of medication overuse.” In her follow-up report of September
9, 2014, the plaintiff still had complaints of lower back pain, worse on the
left side, radiating across daily, intermittent in description, aggravated upon
prolonged sitting. Flare ups of pain usually start in the area of the tailbone.
This pain radiates to the back and both thighs on occasion, and this problem
remains the most significant subjective complaint. Ms. Kam commented on
occasional neck discomfort usually on sudden jerk-like movements.

[12]       
Dr. Apel concludes that:

1.         Evidence
of fibromyalgia – improved

2.         Chronic
regional myofascial pain syndrome most pronounced at the pelvic region and
pelvic floor muscles was not investigated … due to pregnancy

3.         No significant complaints were
noted … of headaches, which seemed to have improved

[13]       
She recommended that there be a “well-rounded exercise program with
cardiovascular conditioning, core strengthening and stretching exercises should
be implemented as recommended in the past.”

[14]       
The evidence of fibromyalgia improved “as a result of hormonal and body
change due to pregnancy”. She also agreed that fibromyalgia is incurable and it
can wax and wane. She specifically concluded that the interstitial cystitis
which the plaintiff suffered from for some time is in fact a sharp pain that is
not similar to the back or muscle pain (chronic regional myofascial pain
syndrome) that the plaintiff suffers from.

[15]       
Dr. Apel does not state the plaintiff has fibromyalgia but does
find she has some symptoms of fibromyalgia. She makes a conclusive diagnosis of
chronic regional myofascial pain syndrome which is unchallenged by the other experts.

[16]       
Dr. Eliason, her general practitioner, said that as a result of the
accident she suffered soft tissue injury cervical spine and soft tissue injury L-S
spine. That was on March 17, 2014. On September 17, 2013, he diagnosed her as
having soft tissue injury to the lower back and episodic neck pain and pain
radiating to the top of her shoulders. Dr. Eliason was of the opinion that
it is likely the plaintiff would have further improvement over time although he
said there was a possibility the plaintiff will not obtain complete resolution
of her symptoms.

[17]       
Dr. Piper, an orthopedic surgeon examined the plaintiff on
September 17, 2013.

[18]       
He found that she had a:

…significantly flattened lumbar lordosis.
She had a moderate degree of paravertebral muscle spasms in the entire lumbar
paravertebral musculature She was tender to palpation over the paravertebral
muscles and also tender to palpation over both right and left sacroiliac joints.
She had mild tenderness on palpitation over the coccyx and over the
sacro-coccygeal region.

He also found she had limited extension with some
aggravation of her back pain.

[19]       
Dr. Piper concludes that:  “I think she continues to be symptomatic
as a result of a soft tissue injury to the musculoligamentous structures of the
low back.” He recommends “a very aggressive rehabilitation program directed to
her low back”, and was of the view that a kinesiologist should be retained and
to enter into a program to improve her core.

[20]       
In a follow-up report of January 20, 2015, after receiving Dr. Apel’s
report of May 14, 2013 and September 9, 2014, and chart notes from Dr. Eliason,
Dr. Piper concluded that he agrees with Dr. Eliason’s diagnosis of
soft tissue injury to the cervical spine and lumbar spine and notes that “Dr. Eliason
hopefully suggests that it is likely she will have further improvement over the
course of time although suggests as well that it is possible that she will not
obtain the complete resolution of her symptoms.”

[21]       
Dr. Piper also acknowledges that although his prognosis is that the
plaintiff’s symptoms should gradually resolve over time, he admitted that in some
cases pain can persist and get worse.

[22]       
In the May 14, 2013 report Dr. Apel opines that “Ms. Anderson’s
(formerly Kam) residual difficulties are chronic pain, limitation of energy,
and limitation of sleep, with related chronic pain psychology and emotional
problems.”

[23]       
She opines “residual disability is likely including general chronicity
of pain, susceptibility of pain exacerbation upon exposure to possible future
trauma, stress and illness.”

[24]       
I was impressed with Dr. Apel. She saw the plaintiff on two
occasions. Her report was thorough and detailed as was her examination. I am
satisfied that the kinesiologist that worked with the plaintiff (which I assume
was in response to Dr. Piper’s recommendation in his first report) between
November 2013 and April 2, 2014 along with her continual rigorous workout
program that she had continued to do following his recommendation of a kinesiologist
has not improved her condition and I am satisfied that it is unlikely her
symptoms will improve in any significant way. In my view she had tried
everything possible. She has applied herself in a rigorous discipline fashion
and four years after the accident she still has chronic lower back pain.

RANGE OF DAMAGES – NON-PECUNIARY

[25]       
Non-pecuniary damages are awarded to compensate a plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The factors to
consider are set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
leave to appeal refused, 2006 SCC 100. Any assessment of damages of course must
be fair to both parties, and must be decided on the facts of the particular
case.

[26]       
The plaintiff is still relatively young, being born in November 1975. The
nature of her injuries are significant and they have subsisted at least in the
lower back for four years. The plaintiff has suffered emotionally and her life
has been impaired. It has also adversely affected her family, her marital
relationship and her social relationships. She is incapable of doing practically
all the sporting activities that was a vital and vibrant part of her personality
and her relationship with her husband, her family and friends. Although she
only took three days off work purely because she is stoic is not a reason to
generally penalize the plaintiff.

[27]       
The plaintiff says the following cases are appropriate:

Beagle v. Cornelson,
2012 BCSC 1934, non-pecuniary damages at $90,000, adjusted for inflation: 
$93,400

Foran v. Nguyen, 2006
BCSC 605, non-pecuniary damages at $90,000 adjusted for inflation:  $103,400

Rizzolo v. Brett, 2010
BCCA 398, non-pecuniary damages at $125,000, adjusted for inflation:  $136,500

Danicek v. Alexander Holburn
Beaudin & Lang, 2010 BCSC 1111, non-pecuniary damages at $180,000,
adjusted for inflation:  $200,100

[28]       
The Danicek case involved chronic headaches where the symptoms
existed for nine years. The present case does not have any cognitive issues and
in my view the Danicek case is of little assistance.

[29]       
The defendant says that the following are relevant cases:

Hatch v. Kumar, 2013
BCSC 2049, non-pecuniary damages at $50,000

Prempeh v. Boisvert,
2012 BCSC 304, non-pecuniary damages at $60,000

Zamperini v. Da Costa,
2013 BCSC 797, non-pecuniary damages at $65,000

Hay v. Benzer, 2014 BCSC
1522, non-pecuniary damages at $55,000

[30]       
The defendant’s cases do not, in my view, deal with the significant types
of injuries suffered by the plaintiff. Although the range is between $50,000
and $60,000, the defendant quite properly conceded at trial that the
plaintiff’s damages should be assessed at $70,000.

[31]       
I am satisfied, considering all of the evidence that the proper award is
the amount of $125,000.

PAST WAGE LOSS

[32]       
The parties have agreed that past wage loss of $10,000 is appropriate.

FUTURE WAGE LOSS / LOSS OF CAPACITY

[33]       
The plaintiff had been employed with BFI Canada Ltd. at the time of the
motor vehicle accident and was earning $22/hour. Following the accident,
because of her strong work ethic, she only lost three days of work. On May 16,
2011, she commenced work for Waste Management Inc. where she earned $183/day. She
is described by her district manager as an exceptional employee with an impeccable
history and work ethic and does the work of 1½ people. A job opening came up as
a route manager in June of 2013 and Karen Dilullo, the district manager,
described the plaintiff as someone who would have been a “natural succession”
to move up in the company. The plaintiff had exceeded expectations in her
annual reviews and if it was up to Ms. Dilullo she would have hired the
plaintiff for the route manager job not only because of her work ethic but
because the company favours internal applicants. In fact, an internal applicant
did in fact obtain the job. The plaintiff did not apply for this job because
the job entailed long periods of time driving either from Kelowna to Penticton
or Kelowna to Kamloops and the North Okanagan. She would then be sitting inside
a dump truck type of vehicle that collects the waste where there is a lot of
jerking and movement inside the cab because part of the job entails training
the truck drivers in terms of efficient driving and complying with safety
standards.

[34]       
Drew Dennis, the district manager for Waste Management Inc., stated in a
letter dated July 8, 2003:

Currently, Leah Anderson is an Operations Specialist (Collections)
with Waste Management Inc. in Kelowna, BC. As with many companies, Waste
Management identifies and promotes talent within the organization to greater
responsibility and roles, which in Leah’s case would be a Route Manager (Collections).

Recently, an opening has occurred
for the Route Manager role in Kelowna, which Leah’s experience and knowledge
base would have made her a leading candidate for. In an additional meeting with
me regarding the role, it became readily apparent that due to the nature of
some of the expectations of the role, such as performing weekly ride-along
assessments with drivers as well as daily travel to out-district sites, such as
Kamloops and Penticton, the current physical state of her back would be a major
concern. Given this, Leah determined that she could not pursue the role.

[35]       
The salary for a route manager ranges from $60,000 to $78,000 per year. Route
managers are also eligible for quarterly bonuses, or incentive plans. Targeted
annual payout is $9,000 with all goals met. The minimum payout is zero. The
maximum annual payout for incentives is $18,563.

[36]       
The defendant has quite properly conceded that the plaintiff would most
likely obtain the promotion.

[37]       
I am satisfied also that there was a real and substantial possibility
that she would obtain the promotion and that the proper approach is the
earnings approach as compared to the capital asset approach discussed in Perren
v. Lalari, 2010 BCCA 140 at para. 32.

[38]       
The plaintiff was earning $53,000 per year but now because of promotion,
receives $57,000 per year.

[39]       
The plaintiff says that taking into account the difference in what she
now earns, considering that she would have been earning $60,000 with bonuses up
to $18,000/year and not taking into account further promotions that at
$10,000/year is a conservative figure and with her current age (39 years), she
has 26 years of work to age 65 or at $260,000 wage loss the present value is
calculated at $215,000. The plaintiff says that taking into account the fact
that she may have to work to age 70 and because of her work ethic, she would
most likely meet all her goals as she has in the past and receive substantial
bonuses.

[40]       
The position of the defendant is that there are a number of negative
contingencies that must be considered. The defendant says there are still
potentials for improvement in her health, and opportunities for advancement. There
is a realistic possibility that her health will improve because of an improved program
by a kinesiologist. She had indicated she would consider reapplying for the job
if out-of-town travel could be reduced. There is a contract coming up in the
near future with the City of Kelowna that the plaintiff’s company may bid on
which would reduce travel. The plaintiff has indicated that she would “love to
return to university and complete her bachelor of science degree” which would
lead to an entirely new career path. The defendant says that an appropriate
award for loss of future earning capacity is $60,000 which represents one year
of the plaintiff’s current salary. I am satisfied taking into account all the
negative and positive contingencies that an appropriate award is $160,000.

COST OF FUTURE CARE

[41]       
The plaintiff says that she is entitled to what is medically justified
in respect to cost of future care as long as there is some evidentiary link
between a physician’s assessment of pain, disability and recommended treatment.
The claims of course must also be reasonable.

[42]       
In terms of “reasonable” Smith J. in Bystedt v. Hay, 2001
BCSC 1735 when asked what expenses would be incurred by a reasonable minded
person with financial resources to pay stated at para. 163:

Thus, the claim must be supported
by evidence that establishes the proposed care is what a reasonable person of
ample means would provide in order to meet what the plaintiff "reasonably
needs to expend for the purpose of making good the loss"

[43]       
The defendant says that the plaintiff did not inquire from Dr. Eliason
what the Mackenzie types of exercises were, that were recommended by Dr. Apel.
Dr. Piper also agreed with Dr. Apel that Mackenzie types of exercises
would be beneficial and recommended a kinesiologist. However, it was Dr. Apel’s
opinion that was not challenged that stated that Mackenzie type exercises were
the same kind of exercises a kinesiologist would show his or her client.

[44]       
I am satisfied that the equipment recommended for the plaintiff
including the comfort mattress, neck support pillow, standard work station,
ergonomic work chair, foot stool and ergonomic keyboard are appropriate. But
there is no basis for the opinion that her comfort mattress needs to be
replaced every 10 years or that the neck pillow every five years or the work
station every five years; similarly with the chair, footstool and keyboard. Those
bold statements as to the number of years is not of any assistance. What one
would want to do is have some basis for that opinion and take into account the
fact that but for the accident she would have had to replace her mattress on a
periodic basis in any event.

[45]       
The parties presently rent premises, but hope to purchase a house with a
yard. I am satisfied that the cost of lawn maintenance is not realistic because
the parties do not have sufficient funds at this time when both of them are
working to even afford to purchase a comfort mattress, let alone a home. There
is also no evidence whatsoever that now with the birth of their first child on
the horizon that their economic situation will be improved to the point where they
could purchase a home. The evidence is that they do not have any savings even
when both are working full-time. It is admitted by the plaintiff that the cost
of a steerable snowmobile is not necessary.

[46]       
I also reject the cost of a gym/pool pass as that matter is something
that the plaintiff has always enjoyed. She has had a pass at the YMCA as part
of her pre-accident routine.

[47]       
I am satisfied that a modest sum for medication is appropriate. A
kinesiologist on an ongoing basis and a yoga pass are all appropriate in the
circumstances.

[48]       
Without the benefit of an economic report to assist in the determination
of the present value of these various awards and taking into account the
contingency both negative and positive, I award the plaintiff the sum of
$90,000.

[49]       
In addition I award the sum of $15,000 for loss of housekeeping capacity
considering that the plaintiff and her husband were, pre-accident, sharing
household duties 50/50 and that most of the heavier work will now have to be
done by her husband.

SPECIAL DAMAGES

[50]       
The plaintiff claims special damages in the amount of $12,508. Those
damages I am satisfied are reasonable.

[51]       
The plaintiff is entitled to costs.

The
Honourable Mr. Justice F.W. Cole