IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150831

Docket: S24769

Registry:
Chilliwack

Between:

Susan Nancy
Stoneson

Plaintiff

And

The Estate of
Amanda Candice Testa

Defendant

Before:
The Honourable Mr. Justice N. Smith

Reasons for Judgment

[1]            
The plaintiff Susan Stoneson seeks damages for injuries in a motor
vehicle accident that occurred on July 13, 2010. Liability is
admitted and the major issue is the extent, if any, to which the plaintiff’s
earning capacity has been impaired.

The Plaintiff

[2]            
Ms. Stoneson, who is now 57, left high school in grade
11 and began living with her future husband at the age of 16. She was married
at 17 and had the first of her two children at 19. She completed her high
school education as an adult and in 1995, at the age of 37, entered a nursing
program at the University College of the Fraser Valley. She graduated with a
bachelor’s degree in nursing and became a registered nurse in 1999.

[3]            
She initially worked as a public health nurse
with the Fraser Valley Health Authority but wanted to work in rural communities.
In 2006, Ms. Stoneson joined Health Canada as part of “resource team” serving
isolated First Nations communities on the north coast of BC. Nurses are often the
primary care givers in those communities. The plaintiff is a status Metis and says she loves working in First Nations
communities. At one point, she was nominated for an award of excellence
for nurses in those communities.

[4]            
During her early years with Health Canada, Ms.
Stoneson usually worked half time in order to pursue advanced nursing education.
She obtained a Master’s degree in 2007 and did an additional course of study–which
she described as comparable to a second Master’s degree–to qualify as a nurse
practitioner. A nurse practitioner is specifically qualified to act as primary
care giver, making diagnoses and, with some exceptions, prescribing medications.
The plaintiff says that in a remote rural community with no doctor, a nurse
practitioner can function much like a family practice physician.

[5]            
At the time of accident at issue, Ms. Stoneson
was working full time as a regional nurse practice consultant with Health Canada. That involved teaching and supervising less
experienced nurses, sometimes on-site in remote communities, sometimes in
Vancouver. She was able to use a home office to prepare education materials. At
the same time, she continued working to obtain her Nurse Practitioner
certification.

The Accident and
its Result

[6]            
The accident occurred when the plaintiff’s vehicle was stopped in rush
hour traffic on Highway 1 in Burnaby, BC. and became the third car in a
three-car collision. A vehicle driven by the defendant Amanda Testa hit another
vehicle from behind and that vehicle in turn struck the plaintiff’s vehicle. Liability
has been admitted on behalf of Ms. Testa, who has since died of an unrelated
cause. The action against the owner and driver of the middle vehicle, Julio and
James Guerra, was discontinued.

[7]            
The collision caused extensive damage to both the Testa
and Guerra vehicles. The impact on the plaintiff’s vehicle was absorbed
primarily by a rear trailer hitch, but was later found to have also bent the
frame.

[8]            
The plaintiff’s family physician, Dr. Steve Bester,
says that the accident caused soft tissue injury to the neck, shoulders and
upper thoracic spine. The plaintiff testified that this caused the most
acute pain during the first three months after the accident and then began to
improve. However, she says the pain, stiffness and mobility limitations have never
completely resolved.

[9]            
She says her neck and back pain is always present, with exacerbations “once
or twice every couple of weeks” that last for “a couple of days.” The exacerbations
are caused by sitting at a computer, driving long distances, repetitive
movements and stress. She takes multiple medications, both prescription and
non-prescription, on a daily basis and says this reduces the pain to a dull ache
with which she can perform a number of functions until the medication wears
off.

[10]        
Prior to the accident, the plaintiff suffered from chronic low back pain
as a result of an accident in 2002. She said the pain was not disabling, a fact
that is clearly confirmed by her work and educational record during the period.
She testified that the accident at issue aggravated the low back pain, which is
now present as a “dull ache,” but is much less severe than the neck and upper
back pain.

[11]        
In the period immediately following the accident, the plaintiff
continued working, but her employer accommodated her by temporarily eliminating
travel to remote communities and permitting more work from home. This lasted
for three or four months. According to Marilyn McGarry, her supervisor at the
time, Ms. Stoneson was then able to return to her work in remote communities. Ms.
McGarry said she was not aware of any physical limitations, although she never
had occasion to observe the plaintiff first hand in those settings. During the
periods when the plaintiff was working in the Lower Mainland, Ms. McGarry said
she continued to assign more work that could be done at home.

[12]        
The plaintiff continued to work full time while also attending
physiotherapy and, in 2012, obtained her Nurse Practitioner certification. At
approximately the same time, Health Canada transferred its rural nursing
services in BC to a new First Nations Health Authority. The plaintiff opted to
stay with Health Canada and took a part time position working two weeks out of
four in First Nations communities in Northern Alberta.

[13]        
The plaintiff testified she is able to do that job because it involves
working two weeks out of four and she is able to benefit from the “recovery
time” when she is not working. She also said that she able to obtain help from
others on site, such as paramedics, when heavier work, such as transferring
patients onto and off of stretchers, becomes necessary.

[14]        
The plaintiff’s current position is by definition a part-time one in
which it is not possible to work more than 80% of full time. She testified
that, but for her injuries, she would likely be working at the 80% level. When
not working at the Health Canada job, she said she would have the opportunity
to earn extra income by working casual nursing shifts at hospitals. She says
that because of her injuries she cannot work more than two weeks at a time and
needs the following two weeks to rest and recover.

[15]        
The plaintiff’s work is divided among four different communities and for
part of her time there she is on-call 24 hours a day. That results in
significant overtime pay. Under the collective agreement in place, any after-hours
call, no matter how brief, entitles her to payment for a minimum of three hours
overtime. In 2013, her total income was $115,397.00, of which
approximately 40% was overtime.

[16]        
In January 2014, while working in one of the northern Alberta
communities, the plaintiff slipped on snow and ice and injured her rotator cuff.
She had surgery in May 2014, and returned to work in January 2015. As of the
date of trial, the plaintiff was back to her previous two weeks on, two weeks
off schedule and said her shoulder was back to normal.

[17]        
In 2006, the plaintiff bought a motorcycle for recreational purposes but
said she had to sell it after accident because she was unable to turn her neck
sufficiently and her neck pain was aggravated by vibrations. Her family owns a
boat, but she says it now stays primarily at the dock because she cannot
tolerate wave action. She also owns a horse, but said it is now primarily a pet
because the prospect of falls makes riding to risky.

[18]        
She also says she has not been able to help care for or play with her
grandchildren, aged six, four and three. “I’m the one who would have been going
on waterslides and amusement rides with them,” she says, “but I can’t do it.”

[19]        
Dr. Christopher Watt is an occupational medicine
and sports medicine physician. He attributes the plaintiffs neck pain to the
accident, which he says also made the pre-existing low back condition
permanently worse. He believes the plaintiff is now suffering from “Posttraumatic
Myofascial Pain Syndrome (defined as regional soft tissue pain syndrome
associated with the presence of a trigger point in the involved muscle).”

[20]        
Dr. Watt’s opinion is based in part on
functional testing conducted by Chris Nguyen, a functional capacity evaluator. Based
on that testing, Dr. Watt says the plaintiff has permanent impairment in her
capacity for repetitive reaching above eye level, lifting and carrying. The
effect of these impairments is that she does not technically meet the published
physical requirements for her occupation and would not be able to work full
time.

[21]        
The plaintiff also attended a functional
capacity evaluation at the request of defence counsel, but no report from that
examination was produced.

[22]        
Dr. Aaron MacInnes is an anesthesiologist and
pain management specialist. In a report, dated March 16, 2015, he said:

Since the motor
vehicle accident Ms. Stoneson has developed constant painful symptoms
throughout the cervical, thoracic and lumbar spine areas. These symptoms are
most severe in the cervical spine and left shoulder girdle region. These
symptoms are now chronic and again likely mechanical or musculoskeletal in
cause… it is my opinion that the motor vehicle accident is most likely
responsible for the current constant, daily symptoms and their associated
disability.

[23]        
Dr. Bassam Masri, an orthopedic surgeon, examined the plaintiff at the
request of the defence counsel. He agrees that the accident caused a soft
tissue injury to the neck, with pain radiating to the upper shoulders and related
headaches. He also said the accident aggravated the pre-existing back condition
and all of her pain may have been aggravated by her subsequent slip and fall.

[24]        
Dr. Masri said an injury like the plaintiffs would usually have improved
significantly by now and he is unable to explain the persistence of the
plaintiff’s symptoms. But, he says: “[a] small subset of patients will continue
to have symptoms after an injury, and she may be one of those.”

Credibility

[25]        
Counsel for the defendant submits that the plaintiff is an unreliable
witness and refers to a number of inconsistencies in her reports to doctors and
to her inaccurate recollection of certain dates, such as the date of the
previous accident that caused the ongoing back pain. I do not find these to be
any more than the normal minor errors and inconsistencies that occur when a
person describes past events or an ongoing condition on multiple occasions to
different people for different purposes over a period of several years. Few if
any people have the kind of encyclopedic and consistent memory that defence
counsel in these cases frequently seem to expect of plaintiffs.

[26]        
Counsel notes that in order to do her job, the plaintiff must do some of
the physical tasks she says she incapable of doing. For example, she testified
that she is able to rely on paramedics to do some of the heavy lifting, but the
evidence indicates that paramedics are only available in one of the four
communities she works in.

[27]        
Defence counsel also relies on a letter the plaintiff sent to the
Alberta Workers Compensation Board in relation to her subsequent shoulder
injury. In that letter, the plaintiff emphasized the physical aspects of her
job, including travel with 40 to 50 pounds of luggage and mobilizing patients
with possible cervical spine injury. Counsel says that contradicts the
plaintiff’s position at trial in regard to her abilities. He suggests the
plaintiff is prepared to say one thing when seeking compensation for her slip
and fall injury and something different when seeking compensation for the
injuries suffered in the motor vehicle accident.

[28]        
I frankly do not see the contradiction the defendant relies on. The
plaintiff’s evidence at trial of the physical tasks that may be involved in her
work did not differ from what she told the Alberta Compensation Board. But as I
understand the plaintiff’s evidence, these heavier tasks are relatively
infrequent. Most of her work consists of seeing patients in a clinic or at
their homes. I also did not understand the plaintiff to say that she is
absolutely incapable of doing what is necessary, but that some tasks are
particularly difficult and painful, that she asks for help with those tasks
whenever it is available and that after two weeks of work she needs two weeks
off.

[29]        
At one point in cross-examination, counsel pointed out that the
plaintiff didn’t ask for any injury-related accommodations when she began her
new position in Alberta. Her response was that she believed she could do the
job effectively by making her own adjustments as necessary and by relying on
the fact that it was only half time. This is consistent with the evidence of
her family physician, Dr. Bester, who describes the plaintiff as “very stoic.”

[30]        
In my view, all of the evidence shows the plaintiff to be a highly
motivated individual who obtained professional qualifications relatively late
in life and continued to upgrade her qualifications into her mid-fifties. That
has given her the opportunity to do work that she enjoys and considers
important. There would have been no reason for her to obtain advanced
qualifications, such as the nurse practitioner designation, if she did not
intend to use them as much and for as long as possible.

[31]        
There is no medical evidence that questions or denies the plaintiff’s
current condition and no reason to believe she is working or doing less than
she is capable of. In short, I found her to be an impressive and entirely
credible witness whose evidence was not contradicted in any significant way.

Causation

[32]        
The defendant suggests that the accident is only a partial cause of the
plaintiff’s injuries and submits that damages be reduced by 25% to reflect both
the pre-existing low back injury and the subsequent slip and fall, which
aggravated the neck injury. It is submitted that the injuries are “divisible”
and the defendant is only liable for the injuries she caused.

[33]        
Where tortious and non-tortious cases each contribute to an injury, the
law does not permit apportionment. That is made clear in Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 23, where the Supreme Court of Canada said apportionment
between tortious and non-tortious causes is contrary to the principles of tort
law. While apportionment is possible where injuries are divisible, as with
injuries to different parts of the body, that will rarely be the case when a
tortfeasor aggravates a pre-existing condition or causes a condition that is
subsequently aggravated by other events. In Bradley v. Groves, 2010 BCCA
361, the Court of Appeal said at para. 37:

…showing that there are multiple
causes for an injury will not excuse any particular tortfeasor found to have
caused an injury on a “but-for” test, as “there is more than one potential
cause in virtually all litigated cases of negligence” (at para. 19). It may be
that in some cases, earlier injury and later injury to the same region of the
body are divisible. While it will lie for the trial judge to decide in the
circumstances of each case, it is difficult to see how the worsening of a
single injury could be divided up.

[34]        
Although counsel for the defendant characterizes his submission as one
of causation and divisible injury, it is really a question going to damages. A
tortfeasor is not liable for injuries a plaintiff would have suffered in any
event. The Court in Athey said at para. 35:

The defendant need not put the
plaintiff in a position better than his or her original position. The
defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if
there is a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award. [Emphasis in original.]

[35]        
The evidence is that the plaintiff had chronic low back pain for a
number of years before the accident and that the accident aggravated that
condition, although the plaintiff says that remains a less significant cause of
pain and limitation then the neck injury. There is no evidence that a low back
condition, prior to the accident, had significantly interfered with the
plaintiff’s work, education or lifestyle. Nor is there any evidence that, but
for the accident, the low back condition would have been likely to deteriorate
in the future. However, as will be seen below, I have considered that as a
contingency factor in assessing the plaintiff’s loss of future earning capacity.

[36]        
As for the subsequent slip and fall that caused an injury to the rotator
cuff, the evidence shows that it also probably aggravated the neck injury, but
there is no evidence that it would have caused any neck injury in the absence
of the injury that was already present due to the accident.

Non-Pecuniary Damages

[37]        
The plaintiff continues to suffer a variety of symptoms
from her injury, with the neck and upper back pain producing the most
debilitating effects. She continues to be heavily dependent on medication. Her
leisure activities have been curtailed and her relationship with her family,
including her grandchildren, has been negatively affected. Nothing in the
evidence suggests that the plaintiff can expect improvement in her condition.

[38]        
The plaintiff seeks non-pecuniary damages of $115,000,
relying on Fox v. Danis, 2005 BCSC 102, aff’d 2006 BCCA 324, Clark v.
Kouba, 2012 BCSC 1607, aff’d on other grounds 2014 BCCA 50 and Dorosh v.
John, 2013 BCSC 1442.

[39]        
In Fox, a plaintiff who was 34 at the time of
the trial suffered permanent injuries to her neck and lumbar spine, including
ongoing nerve damage in her lower back. The court found that she was in pain
every day and was not able to work full time. Non-pecuniary damages were
assessed at $100,000.

[40]        
In Clark, a 49-year old plaintiff had chronic
soft tissue injuries that the court found to have impacted all aspects of her
life. She did not miss any work due to the accident, but modified her workday
and arrived home exhausted and irritable. The court awarded non-pecuniary
damages of $85,000.

[41]        
In Dorosh, a 35-year old plaintiff had
soft tissue injuries that produced chronic pain five years post-accident and
the prognosis was “guarded.” She had a number of un-related, pre-existing
conditions that made her vulnerable. Non-pecuniary damages were assessed at
$90,000.

[42]        
The defendant submits that Ms. Stoneson is
entitled to non-pecuniary damages of between $50,000 and $85,000 and relies
primarily on Combs v. Bergen, 2013 BCSC 321. In that case, the plaintiff
was 42 at the time of trial and was still suffering from neck pain, lower back
pain and headaches three years after the accident. The court referred
particularly to the impact on her ability to manage a house and family and on
her leisure activities. There was conflicting medical evidence about whether
improvement in her condition was possible. She was awarded $70,000.

[43]        
Of course, no two cases are precisely comparable and it  is necessary to
consider the plaintiff’s individual circumstances and the factors for
consideration set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46. I
find the plaintiff has suffered from pain that is more or less constant, although
of varying intensity. That pain is likely to be permanent and has affected most
aspects of her life. I assess non-pecuniary damages at $100,000.

Past Income Loss

[44]        
Loss of past income is a hypothetical assessment guided
by the plaintiff’s earnings prior to the accident. It is not an exact
calculation: Wallman v. John Doe, 2014 BCSC 79 at para. 485.

[45]        
The plaintiff began her new job in Alberta in late 2012. I accept her
evidence that she chose to work only half time because of her accident-related
injuries. Although the job is by definition part-time, it is possible to work
up to 80% of full time and her current supervisor, Ms. Letendre, agreed on
cross-examination that such a position would likely be available to the
plaintiff if she asked for it. The evidence is that nurses doing what the
plaintiff does are in high demand and there is a high turnover.

[46]        
In 2013, the plaintiff earned approximately $115,000, including a large
amount of overtime. Ms. Letendre testified that efforts are being made to keep
overtime from being excessive, but I am not persuaded there is much the
employer can do about it. Given the isolated nature of the communities in which
the plaintiff works and the limited availability of other care providers, it
would seem that the need for overtime is directed entirely by patient needs. Ms.
Pecson, a Canada Health payroll clerk testified the plaintiff’s level of
earnings were typical of nurse practitioners in her position.

[47]        
The plaintiff did not work in 2014 because of her shoulder injury and
has had a gradual return to work in 2015. I find that, but for the injuries the
plaintiff sustained in the accident, she would more likely than not have begun
the Alberta job at the 80%, rather than the 50% level and would have earned
proportionally more base salary and overtime from November 2012 through December
2013.

[48]        
The plaintiff says that, during the times she was not working in the
Health Canada job, she could have earned extra income working casual nursing
shifts in hospitals. The plaintiff was starting a new job, involving a great
deal of time away from home. The job involved a great deal of overtime and I
find the plaintiff would likely still have needed some of what she calls
recovery time. While it is possible she would have worked some casual shifts
during her time off, I do not find it likely she would have done so to any
significant degree.

[49]        
I therefore assess past income loss based on her 2013 income, increased
to include the last two months of 2012. The total income would have been
increased by 60% if the plaintiff was working on an 80% basis and I award
damages of $80,000 for past loss of income. No deduction for income tax will be
necessary because it is agreed that the plaintiff, as a First Nations person
earning income on reserves, is not required to pay income tax.

Loss of Future Earning Capacity

[50]        
Damages for loss of earning capacity are a matter of assessment, not
calculation according to a mathematical formula. 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: Rosvold
v. Dunlop, 2001 BCCA 1 at paras. 8-11; Clark at paras. 76-77.

[51]        
I find that the plaintiff’s injuries are likely to continue to limit her
ability to work. The most likely estimate of the future income she could have
earned in the absence of her injuries is the income and overtime to be earned
by working at her present job on an 80%, rather than 50% basis. The plaintiff
says she would be able to continue working at that job until age 70.

[52]        
The plaintiff’s job is a stressful one involving a great deal of overtime.
Even in the absence of the accident, she may have found working to age 70, at
least on an 80% basis, to be too demanding. There is also the possibility that
her pre-existing lower back condition might have caused more problems in the
future than it had in the past. I am also not satisfied that there is a real
possibility of extra, casual work during her time off.

[53]        
I therefore base the assessment of future income loss on the extra
income the plaintiff could have earned by working on an 80% basis to age 65.
Based on her half-time income for 2013, the additional income would be $69,000
a year. The actuarial multiplier contained in the report of the defendant’s
economic expert, Mr. Szekely, produces a present value of $508,000.

[54]        
The multiplier from Mr. Szekely’s report that I have used does not
consider “labour market contingencies” such as unemployment. That is
appropriate in this case because the plaintiff is well-established in a job for
which there is high demand.

[55]        
There are, however, other contingencies that must be considered. In
addition to her pre-existing low back condition becoming more symptomatic,
there is also the fact that a large portion of her income is based on overtime
and therefore not predictable. Applying what I consider to be a reasonable deduction
for those contingencies, I award $450,000 for loss of future earning capacity.

Cost of Future Care and Special
Damages

[56]        
The evidence on the cost of future care is not entirely satisfactory
although the parties agree that the plaintiff will have some ongoing therapy
and medication needs. They differ widely on the amount and neither party has
provided a net present value calculation for the annual costs.

[57]        
The best medical evidence comes from the pain management specialist, Dr.
MacInnes, who recommends regular access to a fitness facility with occasional
assessment by a physiotherapist, kinesiologist and/or personal
trainer to monitor and guide activities. The plaintiff will also have a
continuing need for the medications she now uses. Reasonable total costs will
be in the vicinity of $1200 a year. Rather than putting the parties to further
expense of obtaining present value calculations for a relatively small annual
cost, recognizing that the plaintiff’s needs will likely vary over time and
doing the best I can with the evidence before me, I award $15,000 for cost of
future care.

[58]        
The parties agree on special damages of $1,472.

Summary

[59]        
In summary, the plaintiff will have judgment as
follows:

[60]        
Subject to any matter of which I am not currently aware, the plaintiff
will have costs at scale B.

“N.
Smith, J.”