IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150911

Docket: M103571

Registry:
Vancouver

Between:

Chelsey Gillian
Hall-Smith

Plaintiff

And

Brian H. Yamelst,
Jacqueline Tina Yamelst,
George C. Teed and Kami Cabs Ltd.

Defendants

Before:
The Honourable Madam Justice Dillon

Reasons for Judgment

Introduction

[1]            
The plaintiff was a passenger in a taxi when it was involved in a motor
vehicle accident on February 25, 2009. Liability has been admitted. The
plaintiff claims non-pecuniary damages, past wage loss, loss of housekeeping
capacity, loss of future earning capacity, costs of future care, and special
damages.

Facts

(a) Circumstances of the accident

[2]            
On the cold and snowy night of February 25, 2009 in Kamloops, British
Columbia, the plaintiff was a front seat passenger in a taxi headed to a hockey
game at the coliseum when the taxi was hit from behind while stopped at a
light. The plaintiff could not remember whether the taxi hit the vehicle ahead.
The plaintiff said that the hard impact caused her to first hit the dash with
her left knee and then to back into the headrest. She said that she was scared,
uncomfortable, and immediately in shock. All vehicles pulled to the side of the
road. The plaintiff said that she got out of the taxi and walked away.

[3]            
George Teed (“Teed”) was the driver of the taxi. He described the
conditions as snowy and very icy with the road rutted with ice on February 26.
While stopped to make a left turn, he noticed that the car behind, going about
5 or 10 kilometers per hour, was not going to stop. The driver did not brace
himself and his body was pushed forward about five inches. Teed said that the
impact was light, a “bump”. His car very lightly bumped the car in front. Teed
asked the belted front seat passenger is she was “OK” and she said that she was
“fine”. All the vehicles were pulled over. Teed said that there was no damage
to the car in front of the taxi and that the taxi’s plastic front bumper was
cracked. The passenger said that she was continuing on to the coliseum and
walked away.

[4]            
Brian Yamelst (“Yamelst”) was also headed to the hockey game at the
coliseum that night. He said that it was cold and the road was slick. His
vehicle was in the iced wheel tracks as he attempted to slow down and stop in
the left turn lane before the lineup in front. But, his wheels locked as he
applied the brakes and he slid into the vehicle in front. He thought that he
was going about 10 to 15 kilometers per hour when he started to slide and was
going about 5 kilometers per hour at the point of impact. He did not move
physically upon impact and nobody in his vehicle hit anything inside the
vehicle. He moved his vehicle to the side of the road to exchange information.
There was no damage to his vehicle. Yamelst described the damage to the taxi as
a chip to the plastic covering. Yamelst said that the passenger got out of the
cab, declaring that she “had no time for this”, and walked in the direction of
the coliseum.

[5]            
The descriptions of the circumstances of the accident from both the taxi
driver and Yamelst, along with the lack of significant damage to any vehicle
involved, leads to the conclusion that this was a very minor accident with a
bump to the rear of the taxi causing a light impact. The plaintiff’s
description of a “hard” impact is rejected in favour of the description
provided by the two drivers.

(b) Prior history of the plaintiff

[6]            
The plaintiff was 20 years old at the time of the accident. She had a
long history of drug abuse, alcoholism, a criminal record, no appropriate
education, no significant employment and homelessness. It all started when she
started experimenting with drugs and alcohol in grade 7. By grade 8, she was
skipping school, not going home, and trying whatever drugs she could get
including mushrooms, ecstasy, marihuana, cocaine and crack cocaine. Soon, she
did not go to school and lived in hotels and “peoples’ houses”.

[7]            
The plaintiff said that she used crack cocaine “all day every day” from
the end of grade 8, about 12 years old, to age 19. While this is not entirely accurate
because there was a period of abstinence while jailed, it is a fair summary of
the plaintiff’s life up to the time of the accident. She initially received
money from her father but ended up in prostitution and selling drugs. She was
involved in a significant car accident when she was 15. The car rolled over
several times. Although not belted in, the plaintiff said that she was not
injured. By age 16, she was using heroin. She was homeless.

[8]            
The plaintiff was convicted of possession of drugs for the purpose of
trafficking. She breached probation. She continued using drugs contrary to
probation orders. She had multiple convictions for breach of recognizance or
probation. She was convicted of assault. After imprisonment for 64 days and a
conditional sentence, the plaintiff went to live with her mother and attended a
recovery programme for 30 days called “Sage” as part of her conditional
sentence. Here she developed the idea of going into nursing, foregoing her
dream to become a doctor.

[9]            
Following the Sage recovery in May 2008, the plaintiff said that she had
difficulty finding a job but found part time work as a landscaper, in a
restaurant, in a coffee shop, and in a jewellery store. From T4 income tax
receipts entered into evidence, it appears that the landscaping job was
actually in 2010. Nonetheless, she remained on social assistance. She attended
a drug support group and played baseball with them. In direct examination, she
said that she started updating her education at university in Kamloops and
enrolled in Mathematics and English in September 2008. She said that she
performed average. In cross-examination, however, it became apparent that the
plaintiff failed to complete the math course and did not register for the next
semester due to a drug relapse.

[10]        
Despite efforts following her initial drug rehabilitation at Sage, the
plaintiff testified that she had “slips” when she reverted back to drugs, the
last before the accident being around Christmas. At that time, she used
ecstasy, marihuana, cocaine and crack cocaine for an uncertain period of time.
Other information indicated that the cocaine and marihuana use continued until
she entered further drug rehabilitation in April 2009.

(c) Circumstances of the plaintiff following the accident

[11]        
In direct examination, the plaintiff said that immediately following the
accident, she was very confused, with neck spasm and pinching pain in her back.
She called her mother to come and get her but was vague about the time or her
activity before her mother arrived. The mother testified that she picked up her
daughter at night, she thought around 10 or 11 o’clock, but could not remember
the exact time. It cannot be concluded that the plaintiff continued to the hockey
game despite the accident, although she quite possibly did.

[12]        
The plaintiff said that she took Advil when she got home and attended at
a medical clinic the next day.  She was very uncomfortable, stiff, and in
intense pain with pinching in her neck and shoulders. She testified that her
left knee was also in pain, although this complaint did not appear in the
clinic’s notes which reported tenderness at the neck, shoulder and back.

[13]        
The doctor prescribed medication with codeine (which the plaintiff did
not want to take), stretching, and physiotherapy (which the plaintiff could not
afford).

[14]        
Within a week of the accident, the plaintiff said that she had a “slip”.
A friend gave her a Percocet and she relapsed into drug addiction. She
continued to go to school but “fell asleep”. She moved from Percocet back to
marihuana and cocaine. She went to Calgary and fell into the drug abyss even
more. She said that she was “back at square one”. Eventually, she was persuaded
to go to Vancouver to enter another treatment programme.

[15]        
The plaintiff testified in direct examination that the last time that
she used drugs was on April 15, 2009 when she entered a three-month drug
rehabilitation programme at Turning Point. In fact, she entered the programme
on April 22, 2009. She said that she left in June 2009, suggesting in direct
examination that she had completed the programme. In fact, the programme was to
have been 180 days with completion in October 2009. She was discharged from the
programme on June 1 for unspecified behaviour reasons.

[16]        
On the referral form completed by the plaintiff for entry into the
Turning Point programme, she stated that she had no current health issues. The
plaintiff could not explain this except to say that she felt horrible at the
time. She also could not explain that the reasons that she gave in direct
testimony for her most recent drug relapse related to taking Percocet for pain
from the accident, but she failed to mention the motor vehicle accident or its
related injuries in any information given to Turning Point. Upon entry, the
plaintiff stated that she was still using marihuana and cocaine but failed to
mention her Percocet use. On the individual service plan completed by the
plaintiff for Turning Point in late May 2009, the plaintiff stated that her
only physical impairment was a pinched nerve in her neck. She explained that
she was not in a frame of mind to be thorough about her low back pain,
headaches or left knee pain. Her goals at the time included going to the gym,
swimming, rollerblading, and “hip hop dance”, among other things.

[17]        
The plaintiff said that her back and neck bothered her daily while at
Turning Point. She felt uncomfortable and tense. She had headaches when she
tried to focus, read, or use computers. She had no formalized treatment for her
injuries while there. During this time, she broke her finger playing dodgeball
in an outside activity and attended at a doctor. When asked how she could have
engaged in such a sport with her constant neck and law back pain and headaches,
the plaintiff said that this was one of her “better days”.

[18]        
In an ICBC document of April 2009, the plaintiff described her injury as
a pinched nerve in her neck. When the plaintiff attended at a medical
practitioner in May 2009, she complained only of headaches and neck stiffness.
In August 2009, she complained only of neck pain.

[19]        
Following Turning Point, the plaintiff described that life was great as
she started to look for work and made plans to return to school. When asked if
the injuries dampened her enthusiasm, the plaintiff replied that she could not
do all activities like “bungee jumping”. She felt “under the weather” in the
morning and did not think that the injuries would go on as they had. She lived
with a boyfriend and two dogs. She said that she found anything on her knees or
standing for long periods to be painful to her back. She slept a lot, remained
in pajamas during the day, and had no energy.

[20]        
In cross-examination, the plaintiff said that by October 2009, her knee
did not bother her daily but she experienced constant neck pain and headaches
upon awakening quite often. Low back pain was daily, the intensity dependent
upon what she was doing. There was also some mid back pain. She had attended
walk in medical clinics but could not remember the nature of complaints or whom
she saw. She was able to waterslide and go river rafting in July 2009 and river
rafting again in August 2009.

[21]        
The plaintiff said that she got a part time job in a shoe store in the
summer of 2009. She suffered pain in her lower back and could not climb a
ladder a couple times and called in sick a few times. She was also on social
disability at the time, having claimed it for reasons related to drug
dependency. She lasted six months at the shoe store at this time but returned
to this employment later.

[22]        
The plaintiff began attending Dr. Harjee, a family physician, in October
2009. At that time, the plaintiff reported neck and back pain and headaches.
The doctor found good range of movement but limited neck and back movement with
pain. There was no discussion or observation of a knee injury. The doctor noted
a prior history of chronic mood and anxiety disorder and well as substance
abuse disorder and was aware that the plaintiff was on disability but did not
know exactly why. By late 2009, the plaintiff said that she had pain in her
neck, mid back, low back, and knee. She had headaches and undefined “previous
addiction issues”. Dr. Harjee reported in January 2010 that the plaintiff’s
neck and back pain remained unchanged and that the plaintiff reported knee
symptoms for the last two months with “no apparent precipitating factor”. He
recommended strengthening of her knees.

[23]        
By the end of the first year, the plaintiff testified in direct
examination that the pain was always there but physiotherapy helped. She tried
to roller blade once but had to stop. White water rafting was uncomfortable and
she was too sore the next day to go on dune buggies. She had to stop frequently
when driving.

[24]        
In February 2010, the plaintiff enrolled in a medical office assistant
programme. She passed the entrance requirements and obtained a student loan.
The course was for 37 weeks, with four to five school hours per day during
weekdays. The plaintiff said that she also worked part time at the shoe store
again and then studied “nine to ten hours”. Focussing brought on headaches and
backache. The plaintiff said that she had good grades, A’s and B’s. She
completed the course in November 2010.

[25]        
It was in 2010 that the plaintiff worked as a landscaper. There is no
evidence that the plaintiff was unable to perform this work or that she
performed in pain. The plaintiff was in error when she told experts that she
had worked as a landscaper only in 2008. She earned more from this employment
than she did in her work at the shoe store.

[26]        
After completion of the medical office assistant programme, the plaintiff
had difficulty obtaining work because of her criminal record but she gained
temporary full time employment for one month at UBC hospital as a medical
office assistant in 2011. She found the long commute and having to get up early
difficult. The job ended because the plaintiff did not like the commute time
and she knew that a background check would reveal her criminal record. When
asked whether the injuries interfered with her job, the plaintiff replied that
sitting for long periods was difficult with lower back and neck pain and
headaches.

[27]        
During the summer of 2011, the plaintiff attempted white water rafting
again unsuccessfully due to back pain. She attended at a gym and jogged. She
testified that she struggled with housekeeping work.

[28]        
In June and August 2011, Dr. Harjee found the plaintiff with increased
lower back pain and other non-accident related pain issues. There was no neck
or knee pain reported. The doctor found her fit for enrollment in a licensed
practical nurse programme.

[29]        
About this time, the plaintiff enrolled in a licensed practical nurse
programme, taking the mature student exam. She testified in direct examination
that she wrote to the college for special permission to enter the programme
because of her criminal record. She stated in direct examination that she also
knew that her previous addiction would be a hindrance to obtaining certain
positions. However, when the letter that she had written in support of her
application was placed before her in cross-examination, it is apparent that she
pretended that she suffered only from alcoholism and had been rehabilitated
only for that purpose. She also failed to mention her conviction and
imprisonment for drug trafficking, mentioning only the assault. The plaintiff
began the programme. She stated in direct examination that she enjoyed the
classes but she had “issues with her back and financially”. She remained in the
programme for five weeks, stating in direct examination that she decided that
her injury and finances made this not the right decision. The plaintiff told
Dr. Harjee that finances prevented her from continuing, without mention of
problems with her back. When the letter of November 1, 2011 from the college
withdrawing her from further study due to failure to meet entrance requirements
was put to her on cross-examination, the plaintiff admitted that she knew that
the college would have done a criminal record check but suggested that nobody
had told her that her criminal record for illicit drugs would prevent her from
admission to the programme. From all of this, it is apparent that the
plaintiff’s back injury had nothing to do with her dismissal from the nursing
programme.

[30]        
Dr. Harjee reported nerve root irritation in the left foot and sciatic
changes in the plaintiff in the fall of 2011 which he followed up on with an
MRI and referral to a specialist. These were not related to this accident and
were unusual and premature for a person as young as the plaintiff. In December
2011, the plaintiff was still complaining of low back pain but had also
developed pelvic and groin pain which the doctor said was not related to the
accident.

[31]        
The plaintiff had started active rehabilitation at a gym run by a
friend. From October 2011 to January 2012, she worked out four days per week.
She felt stronger and developed confidence. However, the plaintiff testified
that her neck was “achey and pinchy” every day, mostly in the morning depending
on what exercise she had done the day before. Her low back was still in daily
pain and she started to get numbness in her feet. Headaches were not daily.

[32]        
The plaintiff appears not to have worked again until 2012 when she
obtained work in gym’s daycare where she worked for about four to six months.
She also worked on weekends for nine months as a care aide for a paralyzed man.
In this position, she worked long shifts doing packing, giving bed baths, using
patient lifts, and doing household cleaning chores. She worked as a care aide
on this basis until September 2012.

[33]        
Dr. Harjee saw the plaintiff in July 2012 when she reported lower back
pain that radiated to her upper back and shoulders. He could not determine the
cause of the shoulder pain.

[34]        
The plaintiff had become engaged to be married and followed her fiancé
in his work as an electrician. They had met through group anonymous drug
rehabilitation which the plaintiff still continued on a regular basis. The
fiancé knew about the accident and that the plaintiff suffered neck and back
pain as a result. The couple moved to Slave Lake in September 2012. The
plaintiff obtained employment as a cashier in a grocery store in Slave Lake.
But, this employment did not last long because the plaintiff found it
exhausting to stand for long hours. She then obtained employment part time as a
receptionist at a medical clinic. She stated that her back got really sore and
her knees hurt walking to work in the cold. She shared household tasks with her
fiancé but could not do such things as put the duvet cover on alone. They
attended a gym three days per week and drug rehabilitation meetings five times
per week. She suffered from low mood and depression. The plaintiff moved back
to the Vancouver area in September 2013. The plaintiff said that she could not
help with the moving.

[35]        
In Vancouver, the plaintiff obtained full time work at the False Creek
Surgical Centre from October to December 2013. The salary was $37,000 per year.
She found sitting at a desk for eight hours to be a struggle. She did not like
competing with other women in the office. She did not like the commute. She
stated in direct and at first in cross-examination that she was let go because
she could not focus on her work due to her back injury. However, upon
discovery, she had said that she was let go because of financial cutback prior
to the end of her probation period. During her three months at the surgical
centre, the plaintiff took time off to travel to Thailand, complaining that the
long flights were difficult on her lower back. She then obtained part time work
as a medical office assistant at another clinic, which also lasted for only
three months, from January to March 2014. This period was interrupted by
another trip, this time to Mexico where the plaintiff complained that lower
back pain prevented the plaintiff from going on long hikes.

[36]        
The plaintiff described that her fiancé was away working for long
periods of time. While he was away, the plaintiff said that she did not do
housework, even though she cared for two dogs. She found working full time
exhausting and left whatever cleaning that she did to the weekends. She left
dishes in the sink and did not clean the bathtub. When her fiancé came home, he
cleaned the house in a day. The fiancé, however, said that the plaintiff did
most of the housework while they lived in Slave Lake and does most of it now,
although she does fall behind at times. He said that he does the heavy lifting
but would have done so regardless of the plaintiff’s condition.

[37]        
The plaintiff said that she could not snowboard for more than a day and
was sore and tired afterwards. However, she had not done the sport for many
years so that is not surprising, in any event of the accident. Her fiancé
described that he and the plaintiff are active with hiking, rollerblading,
attending the gym, and snowboarding. He said that the plaintiff has difficulty
on steep slopes and that they had to cancel some hikes in Mexico because of the
steep steps involved.

[38]        
The plaintiff appears to suffer from social anxiety and panic attacks
related to her future, all unrelated to the accident. She now talks about
getting a business degree and having a nanny for the three children that she
wants to have in the future.

[39]        
The plaintiff returned to the care of Dr. Harjee in March 2014. At that
time, the plaintiff reported ongoing lower and mid back pain and shoulder pain
which the doctor associated with the accident. Groin pain reported in April
2014 could not be attributed to the accident.

[40]        
In June 2014, the plaintiff obtained a job for a forest products company
and has remained there in full time employment. She likes her clerical job
doing accounts payable and other desk related work. She earns $36,000 per year,
plus bonus and a percentage of company profits. She said that the company is
aware of her injuries and accommodates her by leaving boxes to be lifted by
others. However, the office worker who assists the plaintiff with the boxes
said that he did this for the previous office clerk and was not performing this
task as a specific accommodation. She works out in the company gym.

[41]        
The plaintiff was involved in two motor vehicle accidents in 2014. One involved
someone sideswiping her vehicle and another involved someone backing into her
vehicle. The plaintiff said that no injury resulted.

[42]        
At the time of trial, the plaintiff described that her symptoms of low
and mid back pain, neck pain, and headaches are always there. The plaintiff
said that other physical complaints have developed since the accident. The
plaintiff described “groin area” and hip pain that was achy and “popped out”,
requiring her to “hit it to get it back in”. She has problems with her right
knee. The hip pain causes both legs to go numb and radiates pain down her legs.
These complaints have endured for three years, since about 2012. But, the
plaintiff said that the most troubling complaint is her low back and neck.
Despite these complaints, the plaintiff is physically and socially active as
revealed in Facebook dispatches.

(d) Expert opinions

[43]        
Dr. Harjee prepared a report on April 1, 2013 in which he provided an
opinion based upon his knowledge of the plaintiff to July 2012. He concluded
that the plaintiff suffered a whiplash/strain injury to her neck and back which
developed into chronic mechanical neck and back as well as groin and knee pain.
The later pains were late manifestations in conjunction with de-conditioning as
a result of her injuries. He considered that the degenerative changes found by
MRI pre-existed the accident but were asymptomatic prior to the accident. He
concluded that the plaintiff had chronic symptoms as a result of the accident
which would endure indefinitely. Dr. Harjee did not update his report following
continuing treatment of the plaintiff from March 2014. At trial, Dr. Harjee
reviewed the December 2011 opinion of Dr. O’Connor, a specialist in physical
and rehabilitation medicine, and agreed with the opinion of Dr. O’Connor.

[44]        
Dr. O’Connor prepared two reports in relation to the plaintiff, dated
December 13, 2011 and March 9, 2013. He conducted an extensive review of
all of the records related to the plaintiff and examined her twice. Generally,
his opinion is preferred given his expertise and thoroughness. Dr. O’Connor
concluded in his first report that the plaintiff suffered soft tissue injury to
her neck, mid-back and lower back in the accident, along with aggravation of
pre-existing degenerative disc disease. The worsening of the disc problem as a
result of the accident was the main continuing limiting factor in December
2011. The pain in her neck and back were largely related to strain from chronic
anxiety since the accident. This would have worsened in the withdrawal period
from drugs. The pain in the groin and knee were not related to the accident.
Ongoing problems were expected to relate to chronic muscle tension, anxiety,
and deconditioning with symptoms related to the degenerative changes placing
her at increased risk.

[45]        
For his second report, Dr. O’Connor examined the plaintiff again. At
this time, four years after the accident, the plaintiff said that she had hit
both knees in the accident, something that she had not mentioned before. Based
upon this report, the doctor concluded that the plaintiff suffered knee pain as
a result of the accident. However, he also said that his opinion with respect
to causation remained the same and that the motor vehicle accident was the
trigger for neck, mid back and low back pain. This leaves knee and groin pain
as unrelated to the accident. In cross-examination, the doctor agreed that
there was no supporting medical information for knee pain as a result of the
accident and agreed that if there was no report of mid back pain for a year
following the accident, then it also was likely not caused by the accident.
When faced with the suggestion that the plaintiff reported mid and low back
pain and knee pain only eight months following the accident when she attended
upon Dr. Harjee, Dr. O’Connor said that either these issues did not bother her
up to then or they were a new condition. When Dr. O’Connor was shown the ICBC
claim and other documents prepared by the plaintiff which did not mention back
or knee pain, he concluded that the neck pain reported could lead to mid back
pain but the lower back pain was less likely to have been related to the
accident. When Dr. O’Connor was reminded of the notation of back pain in the
clinical notes of the doctor who examined that plaintiff the day after the
accident, he resiled somewhat from this opinion. Some of the plaintiff’s
symptoms arose from chronic anxiety that was not caused by the accident. Dr. O’Connor
considered that the plaintiff was capable of full time light or sedentary work
with possibly heavier work if she conditioned herself.

[46]        
The plaintiff was assessed on March 8, 2013, almost four years after the
accident, by Russell McNeil, an occupational therapist who performed a
functional capacity evaluation and report on cost of future care. He tailored
the tests that he performed towards the job requirements of a medical office
assistant or licensed practical nurse, the two jobs that the plaintiff had
indicated that she was interested in. The expert expressed no opinion with
respect to causation. The expert concluded that the plaintiff demonstrated a
capacity for modified light to light level strength activity. While there were
restrictions in the plaintiff’s mobility and activity tolerance, she was able
but restricted due to pain. In cross-examination, it became apparent that the
plaintiff exaggerated her injuries to the expert. She overstated her attendance
at physiotherapy. She implied that she had to leave her full time work at UBC
because she could not tolerate prolonged sitting, not informing the expert that
the work was temporary and she left because of the commute. She also told the
expert that she left the licensed practical nurse programme because of the
prolonged sitting and financial difficulty. She erroneously told the expert
that she worked as a landscaper in 2008, omitting that she performed this work
in 2010 after the accident. The expert found that the plaintiff had severe
weakness in both knees which could create a greater load on the spine and cause
pain in the lower back. Her main difficulty was with static positions, those
that required her to maintain a position for longer periods.

[47]        
Derek Nordin performed a vocational assessment of the plaintiff in March
2013. He could not find evidence that the plaintiff had gone any further than
grade eight in her education. Based upon testing, he found the plaintiff to
have limited aptitude with performance in the bottom 10 percent of the
population, almost below the point of employability. She would be academically
very challenged to complete a licensed practical nurse programme and could
academically tolerate only a six to one year programme of education. Despite
this, the plaintiff had done the medical office assistant programme which
established a potential to access careers as a nurses’ aide. The pre-accident
occupations available to the plaintiff, excluding a licensed practical nurse
due to her drug abuse history and criminal record, placed her with potential
earnings in the range of $20,689 to $43,654 per year. Mr. Nordin was under the
impression that back pain and headaches had prevented the plaintiff from
continuing in the UBC job as a medical office assistant. He did not know that
the plaintiff had worked as a landscaper since the accident. He concluded that
the plaintiff might not be able to engage in full time work because of
restrictions in sitting, standing, and walking caused by back pain.

Non-pecuniary Damages

[48]        
The plaintiff maintains that the bulk of her current symptoms and
ongoing limitations with work, home and recreation would not have existed but
for the accident. The testimony of the plaintiff created the impression that
all of the plaintiff’s symptoms of back pain, neck pain, hip pain, knee pain,
headaches and inability to focus were the result of this very minor accident.
The plaintiff’s testimony ignored the reality that getting into school and work
after her unscheduled lifestyle of drugs and street life would result in a
continuing lassitude that would be hard to shake. The energy and stamina
required to rehabilitate from serious drug addiction, to go to school and to
work is demanding and tiring in and of itself. Standing or sitting all day
while concentrating can lead to a sore neck and back, regardless of anything
else. The plaintiff denies ever having discussions during drug rehabilitation
about the effect of illicit drug use upon her brain, her memory, or her ability
to focus. Certainly, the plaintiff’s use of serious drugs from age 11 or 12 and
her grade eight education left her with diffused abilities far below the norm.
She is to be credited for turning her life around since the accident: but, the
accident was not the cause of all of the plaintiff’s woes.

[49]        
Plaintiff’s counsel submitted that the groin and hip pain and the panic
attacks and low mood were not caused by the accident. However, the neck pain,
low and mid back pain, knee pain, and headaches were caused by the accident and
these symptoms are ongoing.

[50]        
The plaintiff lacked credibility about the nature of her injuries. The
physical complaints were out of proportion to the severity of the accident.
While this court appreciates that not all plaintiffs respond the same way to a
minor incident and that a minor accident does not in itself define injury, this
plaintiff’s response was so unrealistic as to affect credibility. The plaintiff
was vague or could not remember when asked about post-accident activities in
cross-examination and her answers were contrary to other witnesses. The
documentary evidence that the plaintiff completed herself in April and May 2009
belied the suggestion that she was still considerably disabled from injury
sustained in the accident or that she was suffering back and knee pain. ICBC
and Turning Point documents completed by the plaintiff mentioned only pain in
her neck. She misled Mr. Nordin by attributing her relapse back into drugs
shortly after the accident as due to taking prescribed medication, by implying
that her UBC employment was permanent and that she left due to increased back
pain, and by telling him that she left the licensed practical nurse programme
due to back pain and financial difficulty.

[51]        
The preponderance of medical opinion does not find that knee or groin
pain was caused by the accident. The plaintiff’s fiancé was unaware of any knee
pain.

[52]        
It is accepted that the plaintiff suffered soft tissue injury to her
neck and mid back as a result of the accident. Dr. O’Connor also said initially
that she suffered exacerbation of a pre-existing degeneration of the spine that
caused low back pain that had not existed prior to the accident. However, the
doctor changed this view when faced with the suggestion of no complaint of back
pain until the plaintiff saw Dr. Harjee in October 2009 and the plaintiff’s
failure to report back pain in important documentation in April and May 2009.
In these circumstances that were brought to Dr. O’Connor’s attention, he
concluded that the farther the low back pain complaint was from the accident,
the less likely that it had been caused by the accident. But, the plaintiff had
reported back pain in her first visit to the doctor immediately after the
accident. In this circumstance, Dr. O’Connor’s initial opinion still prevails
and it is accepted that the plaintiff suffered exacerbation of her pre-existing
degenerative condition as a result of the accident and began to have pain in
her lower back that did not exist prior to the accident. In any event, the
injury to the plaintiff’s neck and back had largely resolved by the time that
the plaintiff saw Dr. O’Connor in December 2011. At that time, any residual
pain was as a result of the exacerbation of the pre-existing degenerative disc
condition and heightened pain from chronic anxiety unrelated to the accident.
The plaintiff would have suffered back pain at an early age eventually in any
event of the accident. In all of the circumstances, it cannot be concluded that
all of the plaintiff’s present symptoms are as a result of the accident. The
prognosis of Dr. O’Connor is accepted, however, so that at least a small part
of her ongoing back and related pain is attributable to the accident and there
is no prospect for resolution with time.

[53]        
Despite her injuries, the plaintiff was able to enter and succeed in a
rehabilitation programme for the first time within two months of the accident.
She felt sufficiently secure in her physical wellbeing to engage in dodgeball
and other activities. She was able to work at a shoe store where she maintained
part time employment for the first time. She completed a nine month medical
office assistant programme that was rigorous in time demands. She was able to
get work as a medical office assistant but did not keep the work for reasons
that were not related to injury from the accident. She eventually found
employment suited to her and has successfully worked full time since June 2014.
Given the plaintiff’s pre-accident background and her dependence upon social
assistance due to chronic anxiety, she has done quite well since the accident
despite injury. The plaintiff has managed despite the injuries. From all of
this, the nature of the injuries suffered in the accident, and the existence of
other non-accident related physical ailments, it is concluded that the injuries
suffered in the accident were relatively minor and did not prevent the
plaintiff from establishing herself away from a troubled past.

[54]        
The plaintiff claims $65,000 for non-pecuniary damages and the defendant
says that a fair award is in the range of $10,000 to $20,000. The authorities
provided by both parties are distinguishable from the facts of this case,
although helpful.

[55]        
It is important to remember that non-pecuniary damages are awarded to
compensate an individual for the pain, suffering and loss of enjoyment of life
and loss of amenities caused by the accident and that the compensation awarded
should be fair and reasonable to both parties (Miller v. Lawlor, 2012
BCSC 387 at para. 109 (Miller)). The fact that this was a low velocity
collision does not rule out injury (Dao v. Vance, 2008 BCSC 1092 at
para. 19; Naidu v. Gill, 2012 BCSC 1461 at paras. 33-34). The
inexhaustive list of factors to be taken into account in the assessment of
non-pecuniary damages is well established as listed in Miller at para.
105 and Buttar v. Brennan, 2012 BCSC 531 at para. 35. These factors have
been considered in coming to the conclusion here.

[56]        
The plaintiff had substantially recovered from the effects of the
accident by December 2011 when she first saw Dr. O’Connor, except for
aggravation of the pre-existing degenerative disc disease. The impact of the
accident upon the life of the plaintiff was not significant. She was able to
recover to the extent that only her neck pain was worthy of her comment by the
spring of 2009. She was able to rehabilitate and educate herself for the first
time. She was able to start serious work and eventually get and maintain full
time employment that she never had before. She started and has maintained a
stable family life. As in Sevinski v. Vance, 2011 BCSC 892 at para. 84,
it not possible to determine here the extent of the plaintiff’s participation
in sports and other activities prior to the accident based upon her evidence
and prior lifestyle. There is no evidence of prior regular participation that
was hindered by the accident.

[57]        
The plaintiff is awarded $20,000 for her non-pecuniary damages.

Past Wage Loss

[58]        
The plaintiff’s earnings in the year prior to the accident were $68. She
lived on social assistance. She had no work history, an education limited to
grade eight, a criminal record, and a criminal illicit drug lifestyle. Although
she has planned to go back to school to obtain high school graduation, the
plaintiff has not done so.

[59]        
In the year of the accident, she earned $4,473, mostly at the shoe store
and otherwise received social assistance. In 2010, she earned most employment
income from landscaping work and also received social assistance of over
$10,000. In 2011, she earned $3,711 and received over $10,000 in social
assistance. In 2012, she earned slightly more at $8,636 and received over
$10,000 in social assistance. Her income tax returns for 2013 and 2014 were not
in evidence but the plaintiff confirmed that she received social assistance in
2013 when she returned to Vancouver from Slave Lake. The social assistance was
based upon a disability related to chronic anxiety and depression unrelated to
the accident. The plaintiff was aware of the limit of income that she could
earn to still qualify for assistance and worked within that limit until June
2014 when she secured and maintained full time work.

[60]        
The plaintiff has now established and maintained full time work in a
position that suits her limited abilities. Her earnings in excess of $36,000
per year are in the mid- range of the expectations of Mr. Nordin based upon her
capacity irrespective of the accident.

[61]        
The plaintiff’s argument that she would have started full time work in
June 2009 but for the accident is rejected. The plaintiff’s past work history,
poor education, and continuing problems unrelated to the accident suggest
otherwise. It would have taken the plaintiff some time to establish herself
with a working lifestyle in any event of the accident. The course that she did
take was progressive and in keeping with the expectation for rehabilitation
regardless of the injuries sustained in the accident. There is no evidence that
the plaintiff missed a job opportunity or gave up employment because of her
injuries. She admitted that she restricted her work in order to qualify for
continuing social assistance benefits. Her ability to compete to secure work
was hampered by her criminal record and past history of drug abuse.

[62]        
No amount is awarded for past income loss.

Loss of Future Earning Capacity

[63]        
The plaintiff claims that the impact of her injuries upon her income
earning ability should result in an award of $72,000 which represents the
equivalent of two years of her present gross income. The plaintiff says that
she is now incapable of heavier jobs such as a care aide or landscaper and so
is less valuable to herself as a person capable of earning income. The
defendant says that no award should be given under this head because the
plaintiff’s inability to perform as a licensed practical nurse is unrelated to
the accident.

[64]        
Mr. Nordin said that someone suffering from knee pain that made it
difficult to walk or stand was unlikely to withstand the demands of a care aide
or licensed practical nurse. The knee problems that the plaintiff has are not
caused by the accident. Mr. Nordin was mistakenly under the impression that the
plaintiff was unable to complete work as a medical office assistant because of
back pain. He also did not know that the plaintiff had worked as a landscaper
since the accident and included landscaping as one of the occupations that was
closed to the plaintiff as a result of this accident. In this circumstance, it
is difficult to rely upon Mr. Nordin’s conclusion that heavier work is now
closed to the plaintiff. He also found that the plaintiff might not be able to
regularly engage in full time work.

[65]        
Has the plaintiff established a real and substantial possibility that
she will suffer a loss of income in the future as a result of her injuries? As
stated in Perren v. Lalari, 2010 BCCA 140 at para. 32, has the plaintiff
proven that there is a real and substantial possibility of a future event
leading to an income loss? Any residual pain that the plaintiff still suffers
is as a result of the exacerbation of the pre-existing degenerative disc
condition as a result of the accident and heightened pain from chronic anxiety
unrelated to the accident. The former condition would have occurred at some
point in the future, that point being uncertain.

[66]        
The plaintiff is presently working full time as an office clerk and
manages well in this full time position with no accommodations. She has been
able to perform some heavy work as a landscaper since the accident. She has also
worked as a medical office assistant, leaving for reasons unrelated to her
injuries. She may return to this work in the future. Many of her symptoms do
not relate to the accident. In this circumstance, it cannot be concluded that
there is a real and substantial possibility of a future event leading to an
income loss.

Special Damages

[67]        
Dr. O’Connor said in December 2011 that appropriate treatment for the
plaintiff was conservative management with strength and conditioning. In 2013,
he said that further passive therapies were unlikely to make a significant
difference on a long term basis. Dr. Harjee had approved of physiotherapy,
massage and chiropractic therapy to March 2013 but did not encourage passive
treatments after that time. He also encouraged conservative measures including
pool and gym activities. Dr. Harjee’s referral for physiotherapy in January
2010 was related not only to injury from the accident but also to knee pain
which was not caused by the accident. However, most of the referral for 2011
and 2012 appear to relate to injury sustained in the accident. Based upon these
opinions, the plaintiff should receive reimbursement for the cost of massage, a
professional trainer, and physiotherapy to March 2013. Excluding costs related
to obtaining clinical records, these damages total $4,187.

[68]        
The plaintiff’s claim for a new mattress is denied. There is no evidence
to suggest medical need. Further, the plaintiff said that her old one was given
to her by social assistance, was 10 years old, and “had flowers on it”. She and
her fiancé wanted a new mattress. It is as simple as that.

[69]        
There was also insufficient evidence to support medical need for
assistance in moving or cleaning related to the move to and from Slave Lake.
The plaintiff was able to do landscaping and work at a shoe store prior to
this. The claim for mileage in the amount of $902.70 is also denied because
there was no evidence on this matter.

[70]        
Special damages are awarded in the amount of $4,187.

Loss of Housekeeping Capacity

[71]        
The plaintiff has claimed $13,572 for lost housekeeping capacity over
the last six years as a separate head of damage, based upon figures provided by
Mr. McNeil of $2,262 per year for homemaking assistance. This figure was based
upon two hours of homemaking assistance per week for heavier chores but Mr.
McNeil was unaware of the costs of this service in the plaintiff’s location. As
referred to earlier, Mr. McNeil was also unaware that the plaintiff had engaged
in heavier work as a landscaper since the accident. The plaintiff self-reported
restrictions in her ability to perform housekeeping tasks to Mr. McNeil and
testified that her mother-in-law assists her in that regard. However, her
fiancé testified that the plaintiff does the housework, helped with dishes
sometimes by his mother when she comes over. He said that his mother would have
done this anyways when she came over. The mother was not attending or assisting
in response to an inability of the plaintiff. The plaintiff’s husband does his
chores around the house regardless of the plaintiff’s condition and has not
taken on any greater tasks.

[72]        
It is certain that a plaintiff whose ability to perform housekeeping
services is diminished should be compensated for that loss (Rezaei v.
Piedade, 2012 BCSC 1782 at para. 95). When family members perform work that
the plaintiff can no longer do, those tasks have market value which represents
a tangible indication of the loss suffered (Rezaei v. Piedade at paras. 95-96).

[73]        
There is no evidence here, aside from the statements of the plaintiff,
to support the assertion that she could not perform household tasks. In fact,
the plaintiff’s husband suggested otherwise. The plaintiff’s assertions in this
regard were exaggerated and her claim in this regard is not reasonable.

Costs of Future Care

[74]        
Mr. McNeil made certain recommendations for costs of future care. These
include the services of a kinesiologist for the rest of her life, a fitness
pass to a facility with a pool, devices for pain management while sleeping, and
homemaking assistive devices. It should be recalled that Mr. McNeil made no
findings with respect to causation and it has been established that not all of
the plaintiff’s ongoing symptoms were caused by the accident. In addition,
there is no medical evidence that any of these devices or services is required.
The homemaking activity that troubles the plaintiff relates mostly to bending
and kneeling. At the end of the assessment, the plaintiff was of average
ability related to bending and the kneeling is not related to the accident.

[75]        
There must be medical justification for claims for costs of future care
and the claims must be reasonable (Milina v. Bartsch, [1985] B.C.J.
No.2762, 49 B.C.L.R. (2d) 33, 1985 CarswellBC 13 at para. 199). These costs are
not intended to make life more bearable or enjoyable but should reflect what
the evidence has established as reasonable necessary to preserve the
plaintiff’s health (Milina v. Bartsch at para. 201). The plaintiff
also has to establish that there is a real and substantial risk of pecuniary
loss in order to receive damages under this head (Travis v. Kwon, 2009
BCSC 63 at para.108).

[76]        
In this case, there is evidence that the plaintiff has access to a gym
and a pool through her accommodations. There is no medical evidence that any of
the recommendations of Mr. McNeil are necessary for preservation of the
plaintiff’s health. In these circumstances, the claim for costs of future care
is denied.

Conclusion

[77]        
The plaintiff is awarded $24,187. Costs follow the event, except if
either party wishes to speak to the matter.

“Dillon J.”

________________________________

The Honourable
Madam Justice Dillon