IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151019

Docket: 1241531

Registry:
Prince George

Between:

Leona Marie
Zaluski

Plaintiff

And

Susan Ann Verth
and James Verth

Defendants

Before:
The Honourable Mr. Justice Tindale

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff seeks damages for injuries that she received in a motor
vehicle accident that occurred on January 2, 2011 ("MVA"). The
plaintiff seeks compensation for non-pecuniary damages, past wage loss, loss of
future earning capacity, special damages and cost of future care.

[2]            
The defendants have admitted liability for this accident.

[3]            
On January 2, 2011 the plaintiff was driving her father’s 2004 Pontiac
Grand Am motor vehicle on 10th Avenue in the city of Prince George province of
British Columbia. The defendant Susan Verth was traveling northbound on Laurier
Crescent in her Kia Rondo motor vehicle when she was unable to stop at a stop
sign due to icy road conditions and collided with the motor vehicle that the
plaintiff was driving.

[4]            
The plaintiff was wearing her seatbelt at the time of the collision.
Both motor vehicles sustained significant damage.

THE EVIDENCE

 The Plaintiff

[5]            
The plaintiff is 40 years of age having been born on October 24, 1974.
She was raised in the Park Ridge Heights area of Prince George. Prior to the
MVA the plaintiff enjoyed many outdoor activities including riding motorbikes,
quads and snowmobiles.

[6]            
The plaintiff has had a number of jobs since she was 14 years of age,
which have included working as a clerk at a store and working at a wood
processing mill.

[7]            
The plaintiff testified that working at the mill was physically
demanding work and at one point she pinched a nerve in her back and was off
work for approximately 1 1/2 months.

[8]            
The plaintiff has been employed driving a pilot truck escorting oversize
loads on the highway. This job was physically demanding as she would assist the
truck drivers in tying down there loads.

[9]            
In 1999 the plaintiff purchased her own truck and started her own
business as a pilot truck driver. The plaintiff struggled financially with this
business and in 2007 she had drained her bank accounts and filed for
bankruptcy.

[10]        
The plaintiff then took a medical office assistant course and found
part-time employment at the Nechako Medical Clinic. She started employment
there on February 19, 2010. This was part-time employment of approximately 3
days a week with shifts in duration of 4 to 6 hours.

[11]        
The plaintiff has a daughter who was born October 21, 2003. Once the
plaintiff’s daughter was in grade 1, the plaintiff applied for a job at the
Phoenix Medical Imaging Clinic. She started there in the fall of 2010. Her job
was a casual part-time and relief position.

[12]        
The plaintiff had breast reduction surgery on December 7, 2010. She
testified that she healed very well from this procedure.

[13]        
The plaintiff describes on January 2, 2011 that she was involved in a
T-bone collision at approximately 9:00 AM. After the collision she indicated
she was in shock and she reached for her phone to dial 911. Emergency vehicles
responded to her call and ambulance attendants checked her over. Ultimately her
father took her to the hospital. She described that her neck was sore as well
as her hands. She also hit her knees on the dashboard. She described that she
had a bruise on her knees.

[14]        
The plaintiff testified that her neck injury has never resolved. She has
upper shoulder pain on both sides of her shoulders as well as low back pain.
She indicated that the shoulder pain has not resolved either. The low back pain
is a daily occurrence.

[15]        
The plaintiff also testified that she has problems with her hands, which
includes numbness and spasms. The plaintiff says she has terrible insomnia
because of the pain and experienced severe headaches for a short period of time
after the MVA.

[16]        
The plaintiff testified that after the accident she missed one day of
work initially from the Nechako Medical Clinic that being January 2, 2011.

[17]        
The plaintiff’s last shift at the Nechako Medical Clinic was on January
24, 2011. The plaintiff resigned from that employment on March 18, 2011.

[18]        
While employed at the Nechako Medical Clinic the plaintiff was scheduled
approximately 8.5 hours a week and was earning $15.60 per hour.

[19]        
The plaintiff continued working at the Phoenix Medical Imaging until
November 2012. She testified that she missed approximately one month of work
from there in the fall of 2011.

[20]        
The plaintiff testified that by November 2011 she was taking large
amounts of over-the-counter pain medication. The plaintiff testified that she
was taking as many as 24 Tylenol-1 tablets a day.

[21]        
The plaintiff had some back complaints prior to the MVA. The plaintiff
on November 10, 2009 attended at the Nechako Medical Clinic complaining of
chest pain. On November 26, 2009 she again attended there complaining of left
upper back pain for which she was described Tylenol 3 for the pain. She could
not remember what the attendances were specifically regarding.

[22]        
The plaintiff testified that before the MVA the intensity of pain in her
back on a scale of 1 – 10 was 1. After the MVA the pain would range from 6 –
10.

[23]        
The plaintiff testified in the fall of 2011 she had attended at
physiotherapy and worked very hard to rehabilitate herself. She was however not
funded by ICBC to attend at the Canadian Back Institute and she testified that
it was at this point she lost her drive and motivation to recover.

[24]        
The plaintiff stopped working in November 2012 because she realized that
her work was aggravating her pain. In 2013 the plaintiff did some work as a
pilot truck operator however she found the long trips aggravated her injuries.
For the year 2014 the plaintiff estimates that she had approximately $3000 revenue
from driving a pilot truck.

[25]        
Since the MVA the plaintiff says that she does not clean her house and
it is now dirty. She also does not do a lot of her outdoor activities such as
camping and fishing anymore. She testified that she has gone hunting on a number
of occasions.

[26]        
The plaintiff’s income for the years 2006 – 2013 can be summarized as
follows:

2006 – Total income – $3840 (Gross
business income $57,973, Net business income -$4440, Universal childcare
benefit $600)

2007 – Total income $41 (Gross
business income $49,420, Net business income-$1159, Universal children benefit
$1200)

2008 – Total income $300

2009 – Total income $9937 (Total
earnings $1440, Universal childcare benefit $1000, other income $781, Social
assistance payments $6716)

2010 – Total income $18,519 (Total
earnings $16,387, Social assistance payments $2132)

2011 – Total income $20,828 (Total
earnings $17,140, EI benefits $3688)

2012 – Total Income $17,280

2013 – Total income $6402 (EI
benefits $5685, Gross business income $11,057, Net business income $717)

[27]        
The plaintiff testified that she has recently received financing from
her parents to purchase a florist shop. At the time of the trial this business
venture was in its initial stages.

[28]        
On cross-examination the plaintiff agreed that she had neck and back
discomfort prior to the MVA. The plaintiff then denied telling Dr. Kahn and Dr.
Malpass that she had neck and back pain in order to be eligible for her breast
reduction surgery.

[29]        
The plaintiff was then directed to her Examination for Discovery
evidence of July 18, 2013. The plaintiff gave the following answers in response
to question 70 and 71:

70- Q. But what I’m interested in is the records seem to
indicate some neck and back pain prior to before the accident that form part of
your reason to have the breast reduction. What I’m interested in is what the
nature of those physical symptoms were.

A.  I’m saying that I didn’t have back pain, and if I
generalize to my family doctor or the breast reduction doctor, it was a general
term to make sure I had enough qualifications to be eligible for the breast
reduction.

71- Q. So if I – – if I understand you correctly, you didn’t have
any neck or back symptoms at all, you just told your doctor that in order to
make sure you had the operation.

A. Correct.

[30]        
The plaintiff was then asked if she was misleading the court today or whether
she lied at the examination for discovery about whether or not she had back and
neck pain prior to the MVA. The plaintiff responded that she was under a lot of
medication at the time of the examination for discovery and she could have said
anything.

[31]        
The plaintiff agreed on cross-examination that she had stress before the
MVA. The plaintiff also agreed that she had been hunting approximately 10 times
since the MVA.

[32]        
Exhibit 5 tab 4 at page 69 is a clinical record from Dr. Kahn, the
plaintiff’s family doctor, for December 9, 2009 which states that the plaintiff
is " having backaches, neck aches for six months…" On
cross-examination the plaintiff denied telling Dr. Kahn that she had back pain.
The plaintiff when asked why she obtained Tylenol 3 and flexeril at that time said
she may have had back pain.

[33]        
The plaintiff agreed that she has had financial stress her entire life.

[34]        
The plaintiff stated on cross-examination that she did have anxiety
before the MVA, however it never interfered with her life. This is despite the
fact that she had a panic attack which caused her to attend on Dr. Verway on
June 18, 2009 and obtain medication for that condition.

[35]        
On cross-examination it was put to the plaintiff that she quit her job
at the Phoenix Medical Imaging because she was impulsive and she would not receive
benefits as a part-time employee. She denied that and stated that she quit her
job at the Phoenix Medical Imaging because her pain was off the charts and her
sister in-law’s father who had been taking pain medications had died from
complications with his stomach.

[36]        
The plaintiff was then read Questions 291 – 312 from the transcript of
her  examination for discovery from July 18, 2013:

290- Q. Tell me why it is you stopped working at – – at
Phoenix since the time of the accident up to November 2012.

A. Can you – –

292-Q. Why did you stop working at Phoenix in November of
2012?

A. Oh. I was on a huge amount of pain medication for my pain
and I decided I needed to try and get off them to an acceptable amount at
least.

293-Q. And it appears you’ve done that.

A. Correct.

294-Q. Have you made any attempt to return to Phoenix to work
then?

A. No.

295-Q. Why not?

A. I’m unclear what my working limitations are. My anxiety
and depression is – – is high.

296-Q. I thought that was under control.

A. No. I’m on medication for it. Let’s me function, but…

297-Q. Okay. Well, that begs the question again. If the
anxiety and depression are under control with the medication and you’ve reduced
the pain medication to an acceptable level, and I understand you love the
Phoenix position, why don’t you return?

A. Because I don’t see myself working full-time hours ever
eight hours a day, five days a week, to be eligible for benefits. And that is –
– I don’t know. I see myself working there for part-time the rest of my life is
not my future goal.

298-Q. I’m not sure I understand that.

A. I’m lost. I don’t know where I’m supposed to be going,
what I’m supposed to be doing.

299-Q. Have you tried to return to Phoenix?

A. No.

300-Q. Have you – – have you ever called them to ask them if
they would consider taking you back even on a part-time basis?

A. No.

301-Q You had a good relationship, I take it, with your
employers?

A. I did.

302-Q. They liked you, you liked them?

A. Correct.

303-Q. And during the time that you were working for them
between the time of the accident and you quitting in November, they were
accommodating?

A. Very.

304-Q. So can you tell me what specific thing is holding you
back from returning to work?

A. If I’m only gonna work part time I want to do a job that
I’m happy to do every day, that’s fun.

305-Q. I seem to recall somewhere during the course of the
materials in there that you refer to the Phoenix as the dream job.

A. Correct.

306-Q. Wasn’t that fun?

A. Fun is full benefits, a high hourly wage.

307-Q. What were you getting at an hourly wage at Phoenix?

A. $18-ish maybe 19.

308-Q. Okay. So is the reason you didn’t return is you’re not
gettin’ paid enough?

A. No. It’s because I’m not going to get full benefits.

309-Q. Well, wouldn’t you agree that you don’t know that
unless you give it a try?

A. Casual part time will never be eligible for benefits. I’ve
already asked them about that.

310-Q. All right. So the real reason is though you enjoy the
job and they treated you well, the option of returning would be a casual
part-time position regardless what the number of hours are or how they define
you, and that would mean no benefits which is not attractive to you so you want
a better position than that.

A. Yes. Less stressful job.

311-Q. All right. So that begs the question. Have you sent
out any resumes are made any investigations about getting a better job?

A. No.

312-Q. All right. Have your resume?

A. I do.

[37]        
The plaintiff when asked whether these answers were true responded that
she was extremely medicated at the time of the examination for discovery and
that it was not her job to make the defendant’s lawyer aware of her mental
condition but rather it was her lawyer’s job.

 Mike Zaluski

[38]        
Mr. Zaluski is the brother of the plaintiff and is 43 years of age. He
described the plaintiff as a physically active child. As an adult he described
her as also being active and very eager to engage in family activities.

[39]        
Mr. Zaluski described the plaintiff after the MVA as a wreck. He says
that he has seen the plaintiff crying on numerous occasions since the MVA.

[40]        
Mr. Zaluski testified that after the MVA he went hunting with the
plaintiff, his son and their father. The plaintiff shot an elk. He described
that the plaintiff was complaining about being stiff and was taking medication
during this hunting trip.

[41]        
Mr. Zaluski testified that since the MVA the plaintiff does not clean
her house to the level that she did prior to the MVA.

[42]        
On cross-examination Mr. Zaluski testified that when he went hunting
with the plaintiff it was approximately a 4 1/2 hour drive to the hunting site
and a 4 1/2 hour drive back. He also testified that they stayed overnight during
that trip.

[43]        
Mr. Zaluski agreed that when the plaintiff went bankrupt in 2008 she was
stressed out.

 Fred McLeod

[44]        
Mr. McLeod is the manager of the Phoenix Medical Imaging. He knows the
plaintiff through her employment there which began in November of 2010. The
plaintiff was hired as a casual worker. The physical aspects of her job include
answering the phone, moving files, and moving radiographic films which are in
bags and are moved on a cart.

[45]        
Mr. McLeod testified that the plaintiff would have worked between 60 to
70 hours for the month of January 2011. The plaintiff would also cover for
people who are on vacation.

[46]        
Mr. McLeod testified that he had a recollection that the plaintiff did
not refuse the taking of any shifts when she was called upon to do so.

[47]        
Mr. McLeod confirmed that in his letter of March 15, 2012 he was only
able to identify four 7.5 hour shifts that the plaintiff may have missed from
work from January until November 2011. He did however agree that there could
have been other shifts missed.

[48]        
On cross-examination Mr. McLeod testified that he made it clear to the
plaintiff when he hired her that she was a casual employee and there would be
no benefits. He also agreed that they would have accommodated the plaintiff’s
injuries however she never asked for any accommodations.

 Jennifer Talkington

[49]        
Ms. Talkington is the assistant manager for the Nechako Medical Clinic.
She confirmed that the plaintiff was an employee from February 19, 2010 until
January 24, 2011. At the time of the MVA the plaintiff was scheduled for 8.5
hours per week at a hourly rate of pay of $14.50.

 Valency Ann Brown

[50]        
Ms. Brown has known the plaintiff for approximately 24 years. Prior to
the MVA she described the plaintiff as an energetic go-getter. She also
described that the plaintiff enjoyed outdoor physical activities such as
biking, hiking and walking her dogs.

[51]        
Ms. Brown has never known the plaintiff to complain of bodily pains
prior to the MVA.

[52]        
Ms. Brown testified that after the MVA the plaintiff was very down in
terms of her mood and looked exhausted all the time. Ms. Brown came over to the
plaintiff’s house and cleaned it on occasion. Ms. Brown noted that the
plaintiff looks sad a lot of the time.

[53]        
On cross-examination Ms. Brown agreed that the plaintiff’s bankruptcy in
2008 caused her some stress. Ms. Brown also agreed that other than going for
walks with the plaintiff she did not do other outdoor activities with her.

EXPERT EVIDENCE

Plaintiff’s Expert Evidence

 Dr. Rhonda Shuckett

[54]        
Dr. Shuckett was qualified as an expert in rheumatology. She assessed
the plaintiff on two occasions. The first being October 23, 2012 and the second
occasion was May 12, 2014.

[55]        
Dr. Shuckett provided two medicolegal reports dated November 1, 2012 and
June 2, 2014. She also provided a supplemental report dated January 13, 2015.

[56]        
Dr. Shuckett in her medicolegal report dated November 1, 2012 made the
following diagnoses:

i)  Neck injury, mainly soft tissue
musculoligamentous injury. She noted that on x-ray there is some structural
change of C3/4 which she thought may be pre-existing. Dr. Shuckett opined that
this could have rendered her neck more susceptible to injury.

ii)  Thoracolumbar pain with some
mid back pain evidenced on thoracolumbar pain rotation in each direction which
was somewhat decreased.

iii) Myofascial pain, particularly
in the upper to mid back area where there are muscle knots and paravertebral
muscle spasm.

iv) Mechanical low back pain and
sacroiliac ligament strain bilaterally.

v) Chronic pain syndrome. Dr.
Shuckett opined that the plaintiff may be getting into some chronic pain syndrome
but to her credit she is working at her regular part-time job. Dr. Shuckett
noted that the plaintiff had a normal affect when she saw her.

[57]        
Dr. Shuckett opined that the MVA was the cause of her various physical symptoms.
She did note that the plaintiff had complained to other medical treaters that
she had neck pain, back pain and shoulder discomfort as a result of her breast
size prior to the MVA. The plaintiff had breast reduction surgery in October of
2010.

[58]        
Dr. Shuckett in her medicolegal report dated June 2, 2014 made the
following additional diagnoses:

i) Right neck and shoulder girdle
pain with muscle spasm and myofascial pain.

ii) Mechanical low back pain with
upper sacroiliac ligament strain.

iii) Previous diagnosis of chronic
pain syndrome. She opined that she was not at this point convinced that the
term chronic pain syndrome applies to the plaintiff.

[59]        
Dr. Shuckett noted that the plaintiff stated that the drug Cymbalta
"has taken the edge off the pain".

[60]        
Dr. Shuckett in her January 13, 2015 report reviewed a medicolegal
report of Dr.  Kulwant Riar. She deferred to the opinion of Dr. Riar as to the
plaintiff’s emotional health issues. As a result of reading Dr. Riar’s report
she opined that the plaintiff did suffer from chronic pain syndrome.

[61]        
On cross-examination Dr. Shuckett agreed that the plaintiff did not
suffer from fibromyalgia. Dr. Shuckett agreed that the plaintiff on October 23,
2012 told her that she was not experiencing back pain prior to her breast
reduction surgery. Dr. Shuckett agreed that there was a disconnect between what
the plaintiff told her regarding her back pain and what she told Dr. Malpass
who performed the plaintiff’s breast reduction surgery and what she had
previously told Dr. Kahn.

[62]        
Dr. Shuckett also agreed on cross-examination that the plaintiff’s range
of motion was relatively good in her low back.

 Dr. Kulwant Riar

[63]        
Dr. Riar was qualified as an expert in psychiatry and forensic
psychiatry. He assessed the plaintiff on May 14, 2014 and prepared a
medicolegal report dated July 6, 2014.

[64]        
Dr. Riar opined that the plaintiff suffered musculoligamentous strains
as a result of the MVA and she developed a somatic symptom disorder where the
pain is a prominent symptom.

[65]        
Dr. Riar opined that the plaintiff did not experience any symptoms of
post-traumatic stress disorder, or specific phobia to traffic or driving. He
did note that the plaintiff had symptoms of generalized anxiety disorder and
major depression following the MVA. The plaintiff also had symptoms of social
phobia, obsessive-compulsive behaviors, cognitive dysfunction, and behavioral
changes which were related to her anxiety and depressive disorders.

[66]        
Dr. Riar opined that in the absence of any previous history of somatic
symptom disorder the MVA is the cause of her symptoms. He did note that the
plaintiff had a previous history of depression in her late teens however she
was symptom free for many years before the MVA. Dr. Riar opined that in the
absence of the MVA the plaintiff most likely would not have suffered symptoms
of anxiety and depression and further that the plaintiff’s addiction to
narcotics, and her use of marijuana and alcohol would not have occurred.

[67]        
Dr. Riar stated the following with regard to the plaintiff’s treatment
and her level of disability at paras 22 and 23 of his medicolegal report dated
July 6, 2014:

22. As far as treatment is concerned, I note that she does
not do much of her own exercises, and should be encouraged to do so in order to
avoid any deconditioning, and strengthen her musculature. As far as psychiatric
intervention is concerned, it is important that her marijuana and alcohol use
should be addressed in treatment. At the same time, she should be seen by a
psychiatrist to manage her depression with psychotherapy, as well as
psychotropic medications. If that is not available, she should see a
psychologist for ten to fourteen one- hour sessions, for cognitive behavior
psychotherapy, and her family doctor should encourage her to try antidepressant
medication in adequate dosage, on a regular basis, for at least six months or
so.

23. As far as disability is
concerned, I felt that, for a while, Ms. Zaluski has been at least partially
disabled due to her anxiety and depression, as she is having problems coping in
social situations, has cognitive dysfunction, low energy, low mood, etc. As far
as her short- term psychiatric prognosis is concerned, that is for the next six
months, it is guarded. With a little bit of an organized and aggressive
psychiatric intervention, though, her functioning can be changed. Looking at
her previous functioning prior to the accident, I believe that her long-term
psychiatric prognosis is favorable, and eventually her psychiatric symptoms
will remit. Once in that state, there will be improvement in her pains, and her
ability to deal with residual pains. As far as long-term prognosis is concerned
even after the resolution of her present psychiatric symptoms, Ms. Zaluski
remains vulnerable to recurrence of depression or anxiety, but this has to do
with her constitutional vulnerability, and not much effect from the accident in
question.

[68]        
On cross-examination Dr. Riar agreed that the plaintiff can be addicted
to painkillers without having pain. He also agreed that this is the same for
alcohol.

[69]        
Dr. Riar stated that 10 to 14 one hour psychotherapy sessions would be
covered through the Medical Services Plan if provided by a psychiatrist. The
sessions would be $150 an hour if provided by a psychologist.

[70]        
Dr. Riar agreed that the prognosis for the plaintiff is favorable.

 Dr. Iftkhar Kahn

[71]        
Dr. Kahn is the plaintiff’s general medical practitioner. He has been
her general medical practitioner since November 26, 2009. Dr. Kahn testified
that on December 9, 2009 the plaintiff saw him complaining of back and neck
aches for the previous six months because of her large breasts.

[72]        
Dr. Kahn further testified that the plaintiff did not see him with
regard to neck and back pain after December 2009 until the MVA.

[73]        
Dr. Kahn first saw the plaintiff after the MVA on January 4, 2011 at which
time she was complaining of neck pain at the base of her skull as well as
headache and pain in both of her hands.

[74]        
Dr. Kahn testified that on January 25, 2011 he wrote a prescription for
physiotherapy for the plaintiff with regard to her upper back and neck pain.

[75]        
Dr. Kahn provided a medicolegal report dated September 11, 2011 in which
he opined that the plaintiff suffered a cervical sprain secondary to impact
sustained during the MVA.

[76]        
Dr. Kahn on cross-examination agreed that on November 25, 2011 the
plaintiff told him that Celebrex has done magic and she is almost symptom-free.

[77]        
Dr. Kahn testified that the plaintiff did not like to take medication
and was resistant initially to taking antidepressants.

[78]        
Dr. Kahn testified that on December 20, 2013 the plaintiff told him that
Cymbalta has been helping her pain and that she "feels like a new
woman". Dr. Kahn testified that Cymbalta is both an antidepressant and a chronic
pain medication.

[79]        
Dr. Kahn testified on cross-examination that any headaches suffered by
the plaintiff as a result of the accident had settled down by May 31, 2011.

DEFENDANT’S EXPERT EVIDENCE

 Dr. Mark Boyle

[80]        
Dr. Boyle was qualified as an expert in orthopedic surgery. He prepared
three medicolegal reports concerning the plaintiff dated March 19, 2013,
December 9, 2014 and December 23, 2014.

[81]        
Dr. Boyle in his medicolegal report dated March 19, 2013 opined that the
plaintiff suffered a myofascial strain of the cervical spine. Dr. Boyle further
opined that the plaintiff would not require surgery and that medical management
of this condition should be in the form of stretching and strengthening
exercises as well as over-the-counter anti-inflammatory medications.

[82]        
Dr. Boyle specifically opined that narcotic medications were not
appropriate for the plaintiff.

[83]        
Dr. Boyle opined that the plaintiff’s thoracic complaints are related to
her cervical complaints.

[84]        
Dr. Boyle also opined that the plaintiff suffered a myofascial strain of
the lumbar spine. Dr. Boyle opined that her prognosis was good for resolution
of these symptoms and that she would not require surgery. Dr. Boyle indicated
that medical management should be in the form of stretching and strengthening
exercises, core stabilization exercises, gentle aerobic fitness, weight control
and anti-inflammatory medication.

[85]        
Dr. Boyle opined that it was appropriate for the plaintiff to take
approximately one month off of work for physiotherapy. Dr. Boyle did not feel
that it was appropriate for the plaintiff to have taken off any more time from
work and that there would not be any disability expected for the plaintiff.

[86]        
Dr. Boyle in his medicolegal reports dated December 9, 2014 reviewed
further medical documentation relating to the plaintiff including records from
Dr. Kahn and Dr. Shuckett. These records did not change his opinion which he
gave in his medicolegal report dated March 19, 2013.

[87]        
On cross-examination Dr. Boyle agreed that it was possible that there
may be periods of time when the plaintiff’ symptoms are asymptomatic and then could
become symptomatic.

[88]        
Dr. Boyle also agreed that most patients who are symptomatic after three
months remain so indefinitely.

 Dr. Douglas Connell

[89]        
Dr. Connell provided a medicolegal report dated December 16, 2014. He is
a radiologist. Dr. Connell opined that the pre-accident radiograph of the
thoracic spine of the plaintiff demonstrate changes which are present at T2-3,
the mid and lower thoracic vertebral bodies. Dr. Connell opined that these
degenerative changes are unaltered in comparing the pre and post accident
radiographic and MRI studies.

[90]        
Dr. Connell further opined there is a long-standing anterior disc
protrusion with calcification in the cervical spine. Dr. Connell opined that
this change would not have been caused by the MVA.

[91]        
Dr. Connell noted that there is degenerative disc disease in the lumbar
spine. However as there is no preaccident imaging of the lumbar spine Dr.
Connell could not say with certainty if these changes were present prior to the
MVA.

MEDICAL EVIDENCE

Plaintiff’s Medical Witnesses

 Dr. Kristian Malpass

[92]        
Dr. Malpass performed breast reduction surgery on the plaintiff on
December 7, 2010. Prior to any breast reduction surgery Dr. Malpass has his
patients complete a Breast Reduction Consult Questionnaire which the plaintiff completed
on July 29, 2010.

[93]        
In the Breast Reduction Consult Questionnaire the plaintiff among other
things indicated that she had symptoms of neck and back pain as well as
shoulder discomfort.

[94]        
Dr. Malpass testified that he does not have a grading scale with regard
to any symptoms that the patient may relate to pain symptoms. In coming to an
opinion as to whether breast reduction surgery is required Dr. Malpass weighs
neck and back pain more heavily than other symptoms.

[95]        
On cross-examination Dr. Malpass agreed that the presence of neck and
back pain improves the chances that he would recommend breast reduction
surgery.

[96]        
Dr. Malpass also agreed that the plaintiff refused to give him an
authorization to speak to the defendant’s lawyer.

 Wendi McKay

[97]        
Ms. McKay is a Registered Massage Therapist. I did not qualify her as an
expert witness in these proceedings.

[98]        
Ms. McKay testified that she first saw the plaintiff on August 16, 2011
and continued to treat her until June 11, 2013. Ms. McKay also treated the
plaintiff on a few occasions at the end of 2014.

[99]        
Ms. McKay testified that she treated the plaintiff on 113 separate
occasions. Ms. McKay had discussions with the plaintiff from time to time about
taking a break from massage therapy however she said the plaintiff after a
month or so would have a flare up and have to return to her for treatment.

[100]     Ms. McKay
testified that the plaintiff as of August 2, 2013 owes her $8152.57. Ms. McKay
also testified that there is a 8% per annum charge for interest on this amount.

[101]     On
cross-examination Ms. McKay agreed that she did not receive any direction from
a medical doctor for the continuation of massage therapy for the plaintiff.

[102]     Ms. McKay
agreed on cross-examination that she never told the plaintiff that her
vertebrae had popped out and that she put it back in.

[103]     Ms. McKay testified
on cross-examination that she encouraged the plaintiff to exercise and do a
stretching routine. She agreed that the plaintiff had told her that she was not
doing exercises and that Ms. McKay had to strongly remind her of the importance
of exercise.

POSITION OF THE PARTIES

 The Plaintiff

[104]     The
plaintiff seeks the following damages:

i) Non-pecuniary damages: $110,000
– $130,000

ii) Past loss of income/capacity:
$60,000

iii) Loss of future earning
capacity: $340,000

iv) Cost of future care: $70,000

v) Special damages: $10,475.20

[105]     The
plaintiff argues that she has suffered significant physical injuries which are
chronic in nature as well as psychological disorders as a result of the MVA.

[106]     The
plaintiff relies on the following cases for an assessment of her non-pecuniary
damages: Jackson v. Jefferies, 2012 BCSC 814; Morena v. Dhillon,
2014 BCSC 141; S.R. v. Trasolini, 2013 BCSC 1135; Ashcroft v.
Dhaliwal, 2007 BCSC 533; Marois v. Pelech, 2009 BCCA 286; and Eccleston
v. Dresen, 2009 BCSC 332.

[107]     In the
case of Jackson the court summarizes the law with respect to
non-pecuniary damages. The remaining cases involve individuals who have
suffered chronic pain as well as fibromyalgia and severe depression and
emotional problems.

[108]     The
plaintiff argues that if the MVA did not occur she would have continued working
at the Nechako Medical Clinic and Phoenix Medical Imaging. The plaintiff
further argues that it is possible that she would have found a suitable
full-time position with benefits.

[109]     The
plaintiff argues that on average she earned $583.22 every two weeks at the
Nechako Medical Clinic which would equate to approximately $15,163.72 gross per
year. The plaintiff argues that she has lost three years of wages in the
approximate amount of $48,000.

[110]     The
plaintiff further argues that she was working approximately two eight hour shifts
per week at the Phoenix Medical Imaging and as such a conservative estimate of
one year income would be $18,000.

[111]      The plaintiff
also argues that it is possible that she may have secured additional work for
vacation coverage. The plaintiff argues that her lost wages from the Phoenix
Medical Imaging is $40,000.

[112]     The
plaintiff acknowledges that she had income as a pilot truck driver in 2014 and
suggests $6000 should be used to offset her past wage loss. The plaintiff
argues that her gross wage loss is $82,000. Factoring in a deduction for income
tax and other mandatory benefits the plaintiff seeks $60,000.

[113]     The
plaintiff argues that both Dr. Shuckett and Dr. Riar have stated that the
plaintiff is disabled due to the MVA. Specifically Dr. Shuckett questions how
well the plaintiff would fare as a medical office assistant and feels that the
plaintiff is no longer suitable for work as a pilot truck operator on a
full-time basis. Dr. Riar opined that the plaintiff was at least partially
disabled due to her anxiety and depression though the plaintiff concedes that Dr.
Riar’s prognosis over the long-term is favorable.

[114]     The
plaintiff argues that she will lose approximately $20,000 per year as a result
of the MVA to the age of 65. Applying an annual discount rate of 2.5% her
future loss of income would amount to $338,312. The plaintiff further argues
that given her inability to make repairs and renovate her property the amount
for loss of future earning capacity is $340,000.

[115]     The
plaintiff argues that her cost of future care should include $2100 for 10 to 14
one hour sessions with a psychologist at a cost of about $150 per session.

[116]     The
plaintiff also argues that she should receive compensation in the amount of
$260 per month for Cymbalta for her lifetime. The plaintiff says this cost amounts
to $3120 per year and assuming that the plaintiff will live another 40 years
this amounts to $120,000 for the prescription drug which has a present day
value of $52,777.

[117]     The
plaintiff also seeks coverage to attend a gym or yoga program. The plaintiff
seeks $70,000 for future care costs.

[118]     Finally
the plaintiff seeks special damages in the amount of $10,475.20. The list of
special damages can be found in Exhibit 5 in these proceedings.

[119]     The
plaintiff argues that she has not failed to mitigate her losses. She notes that
she did follow the advice of her medical practitioners and engage in a yoga
program as often as possible. The plaintiff also points to the fact that she
was suffering from a cognitive disorder as a result of the MVA and there is no
evidence in this case that the plaintiff would have overcome her condition if
she had more extensive treatment.

[120]     The plaintiff
also argues that she is a credible witness. She acknowledges she has made
mistakes and there are discrepancies in her evidence though she was genuinely
trying to provide accurate testimony. She said that she was confused at the
examination for discovery. The plaintiff asks this court to take into account
her psychological condition when assessing her credibility.

[121]     The
plaintiff argues that the MVA is the cause of all of her identified medical
injuries. Further the plaintiff argues that her pre-existing constitution made
her vulnerable to the effects of the MVA and that there has been no evidence
brought forward to support an argument that her pre-existing constitution would
have resulted in her current issue regardless of the accident.

 The Defendant

[122]     The
defendant argues that the following damages should be awarded to the plaintiff:

i) Non-pecuniary damages:
$20,000-$35,000

ii) Past wage loss: $1000

iii) Future loss of earning
capacity: $0

iv) Loss of housekeeping capacity:
$0

V) Future care costs: $2100 for
psychological treatments, $500 for a kinesiologist and $300 for a gym
membership.

[123]     The
defendant argues that there should be a 25% deduction from any award the
plaintiff receives for her failure to mitigate her losses.

[124]     The
defendant argues that the plaintiff has significant credibility issues. The
defendant says the plaitiff was evasive and argumentative.

[125]     The
defendant further argues that the number of hours that the plaintiff worked at
the Phoenix Medical Imagery are inconsistent with the extent of her injuries.
The defendant argues that it is clear the plaintiff quit her job at the Phoenix
Medical Imagery because she could not get benefits not because her pain was
restricting her from working.

[126]     The
defendant further argues that the plaintiff is not credible especially in
regards to whether or not she had pre-existing back and neck pain.

[127]     The
defendant points to the fact that the plaintiff during her examination for discovery
testified that she had been hunting on one occasion since the MVA however at
trial it became apparent that she has been hunting on 10 occasions. She did
testify that she was hunting from her vehicle and not hiking through the bush
on these 10 occasions.

[128]     The
defendant argues that the plaintiff has failed to mitigate her damages because
Dr. Kahn suggested that she should take antidepressants and she was reluctant
to do so.  Also Ms. McKay told her on many occasions that she needed to
exercise. The defendant says there should be a 25% deduction for the plaintiff’s
failure to mitigate.

[129]     The
defendant argues that Dr. Boyle’s opinion should be accepted that the plaintiff
had a mild whiplash injury which would have justified one month off of work.

[130]     The
defendant argues that none of the experts say that the plaintiff will have any
disability in the future. In fact Dr. Riar opines that the plaintiff’s
prognosis with regard to her psychological injuries is favorable. The defendant
argues that there is no basis for an award for future loss of earning capacity.

[131]     The
defendant argues that while Mr. Zaluski testified as to the plaintiff’s
emotional state. He knows very little about her life and any of the stressors
in her life.

[132]     The
defendant accepts Dr. Boyle’s recommendation for a kinesiologist in the amount
of $500. The defendant also accepts that $300 for a gym pass or yoga classes as
suggested by Dr. Shuckett is also reasonable. Finally the defendant accepts the
recommendation of Dr. Riar that $2100 for counseling is warranted.

[133]     The
defendant argues that there is no evidence that the plaintiff needs to continue
taking Cymbalta for life and specifically Dr. Riar does not suggest this.

[134]     The
defendant argues that the plaintiff has suffered modest injuries and an award
for non-pecuniary damages in the range of $25,000-$35,000 is appropriate.

[135]     The
defendant relies on the following cases for the assessment of the plaintiff’s
non-pecuniary damages: Ward v. Zhu, 2012 BCSC 782; Huntley v. Daley,
2014 BCSC 978; Gulbrandsen v. Mohr, 2012 BCSC 1869; Harshenin v.
MacLeod, 2013 BCSC 2219; Lawrence v. Parr, 2014 BCSC 2004; Rogalsky
v. Harrett, 2014 BCSC 1255; Yang v. Fitzsimmons, 2014 BCSC 838; Thibeault
v. MacGregor, 2013 BCSC 808; and Ahmadi v. West, 2014 BCSC 2050.

DECISION

 Non-Pecuniary Damages

[136]    
The credibility of the plaintiff is a significant issue in this case.
Mr. Justice Abrioux discussed the factors to be considered in assessing a
plaintiff’s evidence in the decision of Buttar v. Brennan, 2012 BCSC
531at paras 24-25:

[24] In a case such as this where there are little, if any,
objective findings except some minor degenerative changes in the neck, back and
knee, the following should be taking into account by the trier of fact:

…the assessment of damages in a moderate or moderately
severe soft tissue injury is always difficult because the plaintiffs are
usually genuine, decent people who honestly try to be as objective and factual
as they can. Unfortunately every injured person has a different understanding
of his own complaints and injuries, and it falls to judges to translate
injuries to damages Price v. Kostryba (1982), 70 B.C.L.R. 397 at 397
(S.C.);

…the court should be exceedingly careful when there is little
or no objective evidence of continuing injury and when complaints of pain
persist for long periods extending beyond the normal or usual recovery (Price
at 399);

…an injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence– which could be just his own evidence if the surrounding
circumstances are consistent– that his complaints of pain are true reflections
of a continuing injury (Price at 399);

…the doctor’s function is to take the patient’s complaints
at face value and offer an opinion based on them. It is for the court to assess
credibility. If there is a medical or other reason for the doctor to suspect
the plaintiff’s complaints are not genuine, are inconsistent with the clinical
picture or are inconsistent with the known course of such an injury, the court
must be told of that. But it is not the doctor’s job to conduct an
investigation beyond the confines of the examining room Edmondson v. Payer,
2011 BCSC 118 at para. 77, aff’d 2012 BCCA 114;

…in the absence of objective signs of injury, the court’s
reliance on the medical profession must proceed from the facts it finds, and
must seek congruence between those facts and the advice offered by the medical
witnesses as to the possible medical consequences and the potential duration of
the injuries Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1127 at
para. 73;

…in a case of this kind care must be taken in reaching
conclusions about injury alleged to have continued long past the expected
resolution. The task of the court is to assess the assertion in light of the
surrounding circumstances including the medical evidence. The question is
whether that evidence supported the plaintiff’s assertion and, if not, whether
a sound explanation for discounting it was given Tai v. De Busscher,
2007 BCCA 371 at para. 41.

[25] In light of the above, an assessment of the plaintiff’s
credibility is critical:

the test must reasonably subject his story to an examination
of its consistency with the probabilities which surround the currently existing
conditions. In short, the real test of the truth of the story of a witness in
such a case must be its harmony with the preponderance of the probabilities
which a practical and informed person would readily recognize as reasonable in
that place and in those conditions.

Faryna v. Chorny, [1952]
2 D.L.R. 354 at 357.

[137]     In my view
the plaintiff was a very poor historian in terms of not only the progression of
her injuries but any pre-existing injuries that she may have had. I also found
the plaintiff to be evasive and combative in her evidence.

[138]     The
plaintiff’s evidence is confusing as to whether or not the plaintiff had neck
and back pain prior to the MVA. What is clear is that the plaintiff was
prepared to tell Dr. Kahn and Dr. Malpass whatever they needed to hear so that
she could obtain the breast reduction surgery whether it was true or not. It is
also clear that the plaintiff contradicted her own evidence on this point
during the trial and at the examination for discovery.

[139]     I also
found the plaintiff to be evasive with regard to her reason for ending her
employment with the Phoenix Medical Imaging. The plaintiff according to the
evidence of Mr. McLeod which I accept missed very few shifts while employed
with Phoenix Medical Imaging. She was also working considerable hours during
the year 2012 including 117 hours in August of 2012.

[140]     I find
that the plaintiff quit her job with the Phoenix Medical Imaging because she
would not receive benefits through that employment. It was not because of her
injuries or psychological condition.

[141]    
In Bulpitt v. Muirhead, 2014 BCSC 678 at paras. 77-78 Mr. Justice
G.C. Weatherill summarized the law on causation of injuries:

[77] The "but for" test is the general test for
factual causation: the plaintiff must prove on a balance of probabilities that
but for the defendants’ negligence, he would not have suffered his injury. The
defendant’s negligence must have been a necessary cause of injury. This test
was most recently summarized and affirmed by the Supreme Court of Canada in Clements
(Litigation Guardian of) v. Clements, 2012 SCC 32 (S.C.C.) at paras 8-10
(see also Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18
(S.C.C.) at paras. 28-29).

[78] The classic statement of
the law of causation by Mr. Justice Sopinka in Snell v. Farrell, [1990]
2 S.C.R. 311 (S.C.C.) 328 is that causation need not be determined by
scientific precision. It is a practical question of fact that can be answered
by ordinary common sense.

[142]     Based on
all of the evidence I do however accept that the plaintiff did receive a mild
soft tissue injury to her neck which affected her shoulders and back. I also
accept Dr. Riar’s evidence that the plaintiff as a result of the MVA as
suffered a somatic symptom disorder as well as anxiety and depression. I do not
accept that the plaintiff has been disabled for any lengthy period from working
as a result of these injuries. She was able to work significant hours at the
Phoenix Medical Imaging well after the MVA. She only missed one day of work
from the Nechako Medical Clinic as a result of the MVA.

[143]     In my view
the plaintiff has exaggerated the severity and duration of her physical
symptoms. I do not accept that her psychological condition disabled her from
working.

[144]     The
plaintiff does not suffer from disorders such as fibromyalgia, Post Traumatic
Stress Disorder or severe and prolonged headaches. The cases that the plaintiff
relies upon are of individuals who are much more seriously injured than the
plaintiff in this case and have many of the above noted disorders.

[145]     The facts
of the cases that the defendant relies upon more closely approximate the
physical injuries of the plaintiff however these are not cases that have the
same level of psychological injury that the plaintiff has experienced in the
case at bar.

[146]    
The inexhaustive list of factors for assessing non-pecuniary damages as
set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46 can be
summarized as follows:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering;

(f) loss or impairment of life;

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff).

[147]     In my view
given the nature and duration of both the plaintiff’s physical and
psychological injuries and considering the factors in Stapley the
appropriate amount for non-pecuniary damages is $50,000.

DUTY TO MITIGATE

[148]    
In Fox v. Danis, 2005 BCSC 102 the court reviewed the law on a
plaintiff’s duty to mitigate her damages at paras 35-37:

[35] There is no dispute that every plaintiff has a duty to
mitigate his/her damages, and that the burden of proving a failure to fulfill
that duty rests with the defendant, the standard of proof being the balance of
probabilities: Janiak v. Ippolito, [1985] ! S.C.R. 146.

[36] In this case, the Defendant submits that the Plaintiff
failed to mitigate her losses in that she failed to exercise as recommended by
her family doctor.

[37] To succeed in proving these
submissions, the Defendants must establish, on the balance of probabilities,
that the Plaintiff failed to undertake this recommended treatment; that by
following that recommended treatment she could have overcome or could in the
future overcome her problem; and that her refusal to take that treatment was
unreasonable: Janiak v. Ippolito, supra and Maslen v. Rubenstein
(1993), 83 B.C.L.R. (2d) 131 (C.A.).

[149]     In my view
the defendant has not established on the balance of probabilities that if the
plaintiff was more diligent in performing her exercises or taking
antidepressant medications this would have enabled her to overcome her
problems. The recommendation of Dr. Riar is for counseling which is relatively
expensive. Also Dr. Boyle suggested that the plaintiff should have the weekly
guidance of a kinesiologist or physiotherapist in guiding her through
exercises. This was not a treatment plan recommended by her medical
practitioners. There will not be a deduction from the plaintiff’s award for
failure to mitigate her losses.

PAST WAGE LOSS

[150]     The
evidence of the plaintiff is that she took one day off of work initially after
the accident and approximately one month in the fall of 2011.

[151]     Dr. Boyle
opined that it would be reasonable for the plaintiff to have taken one month
off of work.

[152]     I have
already found that the plaintiff did not quit her job at Phoenix Medical
Imaging as a result of her injuries. There is no evidence that the plaintiff is
disabled from working. Dr. Riar in opining that the plaintiff has been at least
partially disabled did not qualify what he meant by the term "for a
while". Nor did he give evidence that this related to her ability to work.
In any event I have found that the plaintiff has exaggerated her physical
symptoms and I do not accept that there is a basis for a significant past wage
loss claim.

[153]     Compensation
for past wage loss is based on what the plaintiff would have, not could have
earned but for the injury that was sustained: Rowe v. Bobell Express Ltd.,
2005 BCCA 141 at para. 25; M.B. v. British Columbia, 2003 SCC 53 at
para. 27.

[154]     The
plaintiff shall be compensated for one month of wages for her past wage loss.

[155]      Based on
the plaintiff’s calculations that she would have earned $15,163.72 per year at
the Phoenix Medical Imaging this equates to approximately $1263.64 a month.
Taking into account income tax and other mandatory deductions a reasonable
amount for past wage loss is $1000.

LOSS OF FUTURE EARNING CAPACITY

[156]     I do not
agree with the plaintiff’s submission that the evidence of Dr. Shuckett and Dr.
Riar would support an award for future loss of earning capacity. As I have
already explained Dr. Riar indicated that the plaintiff may have been partially
disabled for a while without explanation as to how long that will be and in any
event he does not say that she was or is disabled from working. Dr. Shuckett
queried whether the plaintiff would be able to drive a truck full time.

[157]     I do not
have the benefit of a functional capacity or occupational therapist report in
this case. I also do not accept the plaintiff’s evidence as to why she quit her
job at Phoenix Medical Imaging.

[158]     The
plaintiff submits that this is a case where it is appropriate to quantify the
loss of earning capacity of the plaintiff on an earnings approach. The
plaintiff argues because she has just started a new business her income as a
medical assistant  should be used to calculate any loss.

[159]     A
plaintiff must always prove that there is a real and substantial possibility of
a future event leading to an income loss; Perren v. Lalari, 2010 BCCA
140 at para 32.

[160]     In my view
there is no evidence to support that there is a real and substantial
possibility of a future event leading to an income loss in this case. The
plaintiff’s evidence is unreliable in terms of the impact of her injuries on
her vocational abilities. The medical evidence does not support that she will
not be able to work in the future. The evidence also does not support an award
for the plaintiff in relationship to making repairs and renovating her
property.

[161]     The
plaintiff’s claim for loss of future earning capacity is dismissed.

COST OF FUTURE CARE

[162]     I accept
Dr. Riar’s recommendation that $2100 for 10 to 14 counseling sessions is
reasonable and necessary. I also accept the recommendations of both Dr. Boyle
and Dr. Shuckett that a gym program is warranted in this case for one year. I
accept the recommendation of Dr. Boyle that a kinesiologist or physiotherapist
should be employed for a period of approximately 6 weeks to assist the
plaintiff in her exercise routine.

[163]     There is
no evidence that the plaintiff requires the drug Cymbalta for the rest of her
life. Dr. Riar does not make this recommendation. I do however find that it
would be reasonable for the plaintiff to be compensated for her Cymbalta for
approximately one year while she continues her rehabilitation.

[164]     I award
the following amounts for future cost of care:

i) 10 – 14 counseling sessions:
$2100

ii) one year gym membership: $500

iii) kinesiologist: $500

iv) Cymbalta prescription for one
year: $3000

Total: $6100

SPECIAL DAMAGES

[165]     Upon
reviewing the list of special damages provided by the plaintiff in my view it
is not reasonable that the plaintiff attended Ms. McKay the registered massage
therapist for over 100 visits.

[166]     In my view
the appropriate amount for special damages is $6000.

SUMMARY

[167]     I award
the plaintiff the following amounts for the injuries she sustained in the MVA:

Non-Pecuniary Damages: $50,000

Past Wage Loss: $1000

Loss of Future Earning Capacity: $0

Cost of Future Care: $6100

Special Damages: $6000

Total: $63,100

[168]    
The parties have leave to bring this matter before me on the issue of
costs if necessary.

 “R.S.
Tindale, J.”