IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151106

Docket: 96976

Registry:
Kelowna

Between:

Brianna Scott

Plaintiff

And

Wayne Brent Hoey

Defendant

Before:
The Honourable Mr. Justice Bowden

Reasons for Judgment

Introduction

[1]            
The plaintiff, Brianna Scott, seeks damages in respect of injuries that
she alleges were sustained by her in a motor vehicle accident.

[2]            
Liability is admitted by the defendant.

Issue

[3]            
The issue is the extent of the injuries caused by the accident and the
resulting damages.

Plaintiff’s Background

[4]            
The plaintiff was born on April 14, 1993. She is 5’ 3” tall and weighs
103 pounds. At the time of the accident she was 13 years old and had just
completed grade 7 at school. At the time of trial she was 22 years of age and
is currently employed at her counsel’s law firm.

The Accident

[5]            
The accident occurred on June 23, 2006, at the intersection of
Springfield Road and Gordon Drive in Kelowna, British Columbia. The plaintiff
and some friends were walking on a crosswalk and were struck by a motorcycle
ridden by the defendant. One witness said that the motorcycle was travelling
slowly. Another said that the motorcycle had been stopped just prior to the
collision.

[6]            
There are different versions of how the accident impacted the plaintiff.

[7]            
She testified that she was struck first by the motorcycle and it hit her
on her left side. She says that she went over the windshield of the motorcycle
and fell on one of her friends. She also says that she landed near the
motorcycle.

[8]            
When the plaintiff visited her family doctor, Dr. McCloskey, on
July 5, 2006, she reported to him that she was thrown into the air. A report
from Dr. Hirsch, who saw her on November 14, 2014, says that she told him
that she was thrown 25 feet in the air from the impact of the motorcycle.

[9]            
Two of the young girls, who were with the plaintiff on the crosswalk,
gave statements that the motorcycle first hit someone in the crosswalk other
than the plaintiff.

[10]        
In her examination for discovery on February 18, 2014, the plaintiff
said that she could not remember what happened on the crosswalk after she
stepped off the curb. In my view that is the most credible version of what the
plaintiff has said about the accident, namely, that she cannot remember. While
she appears to have fallen, I do not accept that she was hit first by the
motorcycle nor that she was thrown into the air.

[11]        
The plaintiff was able to walk away from the accident and called her
father on a cell phone. She said that her father took her to the Kelowna
General Hospital and she went to the emergency ward. Her father did not confirm
that in his testimony.

Plaintiff’s Pre-Accident Condition

[12]        
The evidence shows the plaintiff to have been a normal active girl prior
to the accident.

[13]        
When she was 5 or 6 years old there is evidence that she had an issue
with anxiety. Her parents requested that she be referred by the school’s
counselor to Kelowna Mental Health because of her continuing fears and anxiety.
There is no evidence that she had any other problems with her health.

[14]        
At school she participated in physical education classes and played
recreational soccer in the community.

[15]        
In March 2006, the plaintiff broke her left wrist in a snowboarding
accident. She wore a cast until the fracture healed and did not suffer any
long-term effects from that accident.

Plaintiff’s Post-Accident Medical History

[16]        
Although the plaintiff said that she was seen in the emergency ward of
the Kelowna General Hospital right after the motor vehicle accident, no records
from the hospital were produced at the trial. One of the experts who testified,
Dr. Solomons, was told by the plaintiff in 2014 that she was not admitted
to the emergency ward but was seen by a nurse. The plaintiff told Dr. Shuckett,
another expert witness, that she did not go to the hospital by ambulance but
saw a doctor on the day of the accident. It appears that she may have attended
the hospital but was not admitted to the emergency ward.

[17]        
The plaintiff testified that as a result of the motor vehicle accident
she injured her knees, hips, lower and upper back and her neck. She also says
that she began suffering headaches and anxiety after the accident. She said
that her left wrist was injured but it was now better. I note that was the
wrist that was broken in her snowboarding accident four months before the motor
vehicle accident.

[18]        
According to his records, the plaintiff visited Dr. Gregory
McCloskey on July 5, 2006, about 12 days after the accident. He recorded that
she was involved in a motor vehicle accident and had “contused”, which I take
to mean bruised, her right foot, right knee, left wrist and her neck. He also
observed that she was walking normally, had some tenderness in her right foot,
around her right knee and her left wrist but had good range of motion. He noted
that her neck movements were a little stiff but her alignment appeared to be
normal. Dr. McCloskey’s notes do not indicate that he suggested any
treatment. He noted that he “reassured her”.

[19]        
The plaintiff’s complaints to Dr. McCloskey are consistent with
what her father reported in the motor vehicle accident report.

[20]        
Dr. McCloskey next saw the plaintiff on July 24, 2006, and recorded
that she had some “PTSD” following the accident meaning post-traumatic stress
disorder. He noted that she said at times she was quite anxious and panicky. He
also noted that she was still having visual flashbacks of the accident. He
“strongly urged” her to attend counseling. She did not follow that advice.

[21]        
The plaintiff visited Dr. McCloskey on September 8, 2006 and
January 1, 2007, with complaints unrelated to the motor vehicle accident. On
those occasions, he did not note any complaints by her relating to the
accident.

[22]        
The plaintiff testified that she continued to play soccer after the
accident and participated in a practice and a game each week but said she did
not play as well as she had before the accident. She admitted that she had told
Dr. Lea, Ms. Ingbritson and Dr. Shuckett, expert witnesses in
the trial, that she did not play soccer after the accident when in fact she had
continued to play soccer until she was 18 years of age.

[23]        
When the plaintiff next went to see Dr. McCloskey on September 13,
2007, he recorded that since the motor vehicle accident she continued to have
problems with her knees and “now her hips”. He also recorded that she was
“walking with a little bit of a limp”, had difficulty extending her left knee
and her right knee was tender to the touch. He suggested that she undergo
physiotherapy.

[24]        
On November 9, 2007, the plaintiff attended for physiotherapy with
Corrine Wade. Ms. Wade noted that this was an ICBC matter. She noted that
the plaintiff said her knees and hips hurt when she was walking or running. She
also wrote that the plaintiff suffered headaches twice a week. With regard to
the plaintiff’s history she noted that she used to play soccer but could no
longer play. She recorded that the plaintiff presented with weak core and
spinal muscles. She also observed swelling in one of her knees. She corrected
the plaintiff’s sacroiliac alignment and started her on hip, knee, pelvis and
postural exercises.

[25]        
The plaintiff next visited Ms. Wade on November 16, 2007. Her notes
indicate that the plaintiff’s back was “really sore”. She also recorded that
the plaintiff said that she heard a “pop” in her left sacroiliac joint when
going upstairs and on one occasion her left leg collapsed as she went upstairs.
Ms. Wade reviewed some home exercises with the plaintiff.

[26]        
On November 22, 2007, the plaintiff again attended for physiotherapy.

[27]        
She complained that she was sore all day especially after work.
Ms. Wade started her on a trial with a sacroiliac belt to decrease the
stress on her sacroiliac ligaments.

[28]        
The plaintiff’s next appointment with Ms. Wade on November 27, 2007,
was cancelled because Ms. Wade was away.

[29]        
She did not attend any further physiotherapy treatments because the
plaintiff thought her father could not afford to pay for them. She did not
understand that they would be paid for by ICBC. I note that her father earned
$65,000 from the employment he began in October 2006. In 2007, he purchased a
special edition Harley Davidson motorcycle for $17,000. It is difficult to
accept that the plaintiff was truly in need of physiotherapy at that time.

[30]        
The plaintiff testified at trial that she had never ridden on her
father’s motorcycle. In her examination for discovery she said she would not
get on her father’s motorcycle. Her father testified that he took the plaintiff
for a ride on his motorcycle on one occasion from her school to their home and
another time around the block. It appears that the plaintiff had been on her
father’s motorcycle at least twice before her examination for discovery.

[31]        
The plaintiff attended Dr. McCloskey on five occasions between
January 17, 2008 and December 9, 2009, regarding various issues unrelated to
the motor vehicle accident. On none of those occasions did Dr. McCloskey
note any complaints by the plaintiff regarding injuries from that accident.

[32]        
On December 1, 2010, Dr. McCloskey saw the plaintiff following a
second motor vehicle accident. He recorded that when she was a passenger in a
vehicle it was t-boned by another vehicle. She was wearing a seat belt and the
air bags did not deploy but she thought she struck her head. She also
complained of neck and back pain. He described tenderness in her neck and mid
to low back and said that her range of motion was restricted in all directions
by 5 to 10 degrees. He noted that she had suffered whiplash and recommended
physiotherapy.

[33]        
Dr. McCloskey saw the plaintiff again on January 18, 2011 and May
13, 2011. He did not note any complaints from her in relation to either the
2006 or 2010 motor vehicle accident. His notes regarding the visit on May 13,
2011, indicate that the plaintiff was under a lot of stress, was not sleeping
and worried about her mother who was in an abusive relationship and drinking
again. He suggested some natural remedies to help her with anxiety.

[34]        
The plaintiff was a passenger in her boyfriend’s vehicle when it was
rear-ended in December 2011. She said that her back and neck were sore for
about two weeks after that accident. She and her boyfriend each received about
$2,500 from ICBC as a result of their injuries from that accident. There was no
evidence as to the basis for those payments.

[35]        
Dr. McCloskey does not appear to have seen the plaintiff again in
relation to any of her motor vehicle accidents until November 17, 2012, by
which time the plaintiff had attained the age of nineteen and had control over
her claim. On that occasion the plaintiff complained of continuing pain in her
neck, back, right hip and both knees since the 2010 motor vehicle accident.

[36]        
The plaintiff attended physiotherapy on April 14, 2014, and was treated
for her complaints regarding her back, hips and neck.

[37]        
She did not complain to Dr. McCloskey or her physiotherapist about
headaches.

[38]        
Regarding her present condition, the plaintiff testified that her neck
is constantly hurting and she has tension headaches four or five times a week
for which she occasionally takes Tylenol. She says that her biggest problem is
her hips. She says that they constantly make a “popping” sound and they cause
her to walk “funny” or with a “swag”. She testified that she always sleeps with
a heating pad for her hips and her back. She says that she still suffers
anxiety whenever she is in the vicinity of a motorcycle. She also says that
since the accident in 2006 all of the injured areas such as her neck, back and
hips have become worse.

[39]        
I note that in the medical records in evidence there is no mention of
the plaintiff suffering headaches between 2006 and 2012. In cross-examination,
the plaintiff agreed that she did not complain to the physiotherapist or her
family doctor about headaches during that period.

Expert Medical Reports

Dr. Shuckett

[40]        
Dr. Rhonda Shuckett testified as an expert in the fields of
internal medicine and rheumatology.

[41]        
Dr. Shuckett saw the plaintiff on July 5, 2013, seven years after
the accident and two years before the trial. The plaintiff was then 20 years
old. Dr. Shuckett has not seen her for any follow up nor was she told what
the plaintiff’s current symptoms are.

[42]        
Dr. Shuckett expressed the view that the 2006 motor vehicle accident
was the main cause of the plaintiff’s symptoms with the caveat that the
headaches and neck pain may not be strongly linked to that accident. She deferred
to a neurologist as to the diagnosis and causation of her headaches which she
notes were not mentioned by any doctors including her family doctor for some
time after the accident.

[43]        
Although the plaintiff testified at trial that she awoke 6 to 7 times
each night, she did not report that to Dr. Shuckett who said that while
she may have trouble falling asleep some nights, when she does she sleeps
through the night.

[44]        
Dr. Shuckett noted that the plaintiff had a leg length discrepancy
of about 1 centimeter which may have pre-disposed her to low back and hip pain.
She also said that she observed the plaintiff walk with a normal gait.

[45]        
Some of Dr. Shuckett’s evidence arising under cross-examination
causes me concern and raises a question about the weight to be given to her
opinion.

[46]        
The plaintiff told Dr. Shuckett about her snowboarding accident
occurring before the motor vehicle accident. Dr. Shuckett said that she
should have explored that further with the plaintiff, such as asking her if she
experienced any neck or back pain after the snowboarding accident, but she did
not.

[47]        
In forming her opinion regarding the plaintiff’s mechanical back pain, Dr. Shuckett
admitted that she had assumed that the plaintiff’s hip pain started at the time
of the accident because the plaintiff filled out a form that indicated her hip
was bruised in the accident. The plaintiff did not give evidence about bruising
her hip and it was not mentioned by Dr. McCloskey in his notes of the
plaintiff’s first visit after the accident. The foundation for Dr. Shuckett’s
opinion regarding the plaintiff’s mechanical back pain appears to be lacking.

[48]        
Dr. Shuckett retracted her opinion that the plaintiff’s hip
complaints started “soon” after the accident. She agreed that 15 months was not
“soon”.

[49]        
Dr. Shuckett was not aware that the plaintiff had played soccer for
five years following the accident. She had understood that the plaintiff had
given up playing soccer as a result of the accident. She agreed that her
assumption was important in arriving at her opinion.

[50]        
In her report, Dr. Shuckett suggested that indications of back pain
could have meant neck pain. In cross examination she retracted that statement
and said she was wrong.

[51]        
Dr. Shuckett opined that the plaintiff’s injuries from the 2006
accident had not quite resolved by July 2013, and they were ongoing issues. Under
cross examination she said that was what the plaintiff had told her and it was
not her opinion.

[52]        
Dr. Shuckett’s opinion was that plaintiff’s left knee motion was
less than the right knee and there was some associated stress pain. She said
that this “likely” resulted from the 2006 motor vehicle accident. In cross
examination she qualified her opinion by saying that it was the right knee that
was contused in the accident and it was not clear when the symptoms in the left
knee arose. She agreed that this challenges her conclusion regarding the left
knee and said she would change “likely” to “may have”.

[53]        
Dr. Shuckett’s opinion was that the plaintiff is able to work on a
full-time basis.

Dr. Hirsch

[54]        
Dr. Hirsch was accepted as an expert in the field of physical
medicine and rehabilitation. He examined the plaintiff on November 20, 2014. Dr. Hirsch’s
opinion was that it was not probable that the 2006 accident caused the
plaintiff’s hip and low back complaints.

[55]        
While conceding that he could not exclude the possibility that the
plaintiff was injured in the 2006 accident, he opined:

Ms. Scott sustained fairly
minor injuries to her neck in the subject motor vehicle accident. It is my
opinion that with respect to these particular injuries Ms. Scott has made
a full recovery.

[56]        
Dr. Hirsch commented that the plaintiff scored positive on three of
the five Waddell tests and reported:

During today’s assessment,
inconsistencies were observed, which cannot be explained on a biological mode. It
is possible that they were psychologically driven, but a volitional component
could not be excluded.

[57]        
He agreed with Dr. Shuckett that a strengthening program guided by
a physiotherapist would be beneficial to the plaintiff.

Dr. Lea

[58]        
Dr. Lea testified as an expert in the field of psychology. He
assessed the plaintiff in October 2012 and found the plaintiff to suffer from
post-traumatic stress disorder but with a positive prognosis.

[59]        
It appears that Dr. Lea assumed a number of facts that were
incorrect or not established at trial. For example he reported that the
plaintiff said that she had to give up soccer after the accident.

[60]        
Dr. Lea also reported that the plaintiff could not go on long hikes
or off-roading with her partner, Rylan. The plaintiff did not lead evidence
about off-roading. In her examination for discovery in 2014 she said that after
the accident she was still able to and did hike. Jonathan Arstall testified
that after the accident the plaintiff went “quadding” (which I equate with
off-roading) with him once a month for 30 to 40 minutes.

[61]        
Dr. Lea said that the plaintiff described her pain as 6 or 7 on a
10 point scale where 10 would be the worst imaginable pain. He said she
described her worst pain as 9 out of 10. I note that the plaintiff did not
describe her pain levels on a numerical scale at trial.

[62]        
Dr. Lea said that the plaintiff reported times when she had to go
home early from work because of her symptoms. The plaintiff gave no such
evidence at trial.

[63]        
Dr. Lea reported that the plaintiff used Tylenol four out of seven
days per week on average. Her evidence at trial was that she used Tylenol two
or three times a month.

Dr. Solomons

[64]        
Dr. Solomons testified as an expert in the field of psychiatry. He
assessed the plaintiff on May 20, 2014.

[65]        
Dr. Solomons found that the plaintiff did not exhibit symptoms of
post-traumatic stress disorder and had never exhibited symptoms sufficient to
warrant that diagnosis. While he agreed that a severe motor vehicle accident
may cause PTSD, and the motor cycle accident in this case would have been
traumatic, he did not consider it of such magnitude to cause PTSD. He noted
that the plaintiff was not admitted to the emergency ward of the hospital, she
had no fractures and there was no bleeding. He expressed the view that all
psychiatrists would agree with him that this accident would not have resulted
in PTSD.

Dr. McCloskey’s Evidence

[66]        
Dr. McCloskey was the plaintiff’s general practitioner.

[67]        
His clinical notes indicate that on some of the plaintiff’s visits she
complained of injuries from the 2006 accident. In respect of other visits he
does not note any complaints in relation to that accident. Nevertheless, he
says that on most visits she complained that she still suffered from that accident
even though he did not record that in his notes. That is somewhat inconsistent
with his notes on January 16, 2014, when he recorded that the plaintiff had
visited him in relation to birth control issues but also made notes about her
physical complaints.

[68]        
Two weeks following the 2006 accident Dr. McCloskey noted that the
plaintiff’s neck movements were “a little stiff” but her alignment appeared
normal. Over the course of nine visits after that date, there is no mention of
neck complaints until December 1, 2010, following the plaintiff’s involvement
in the 2010 motor vehicle accident. He testified that when he saw the plaintiff
on August 8, 2013, her neck range of motion was normal.

[69]        
Dr. McCloskey agreed that the plaintiff’s hip complaints did not
start until late in 2007. The plaintiff first complained of low back pain to Dr. McCloskey
on December 1, 2010, following the 2010 car accident.

[70]        
While Dr. McCloskey said that he noticed the plaintiff’s limp he
said that he was not aware of her leg length discrepancy.

[71]        
Dr. McCloskey was not aware that the plaintiff had fallen down some
stairs in 2007. Nor was he aware that she had continued to play soccer after
the accident.

[72]        
Dr. McCloskey’s notes regarding the plaintiff’s visit on June 26,
2012, are as follows:

Continues to experience pain her
neck, back, right hip and both knees since the MVA from two years ago. There
are certain activities that she has to avoid and has pain with certain ranges
of motion, particularly with rotation of her neck and movement of her low
back…note that she has reduced mobility of her neck in rotation to the left and
right, lateral flexion to the left and right, flexion and extension all lack 5
to 10 degrees at the extent of mobility.

[73]        
Dr. McCloskey explained that his reference to “…the MVA from two
years ago” was intended to be a reference to her visit to him two years
previously rather than the motor vehicle accident in 2010. In a clinical note
to plaintiff’s counsel dated November 17, 2012, Dr. McCloskey says that
she had suffered injuries to her neck, back, right hip and knee in the 2006
accident and they were exacerbated by the 2010 accident.

[74]        
In my view, Dr. McCloskey tended to support the plaintiff’s
subjective complaints somewhat less than objectively. I give little weight to
his clinical note to plaintiff’s counsel in November 2012.

Plaintiff’s Work History and Future Aspirations

[75]        
The plaintiff started working at age 14 at a tanning salon where she
cleaned tanning beds. She worked at that job during the summer. She said that
she needed the money to pay her cell phone bills. I note that her father
testified that he paid for her cell phone when she was that age and throughout
her high school years.

[76]        
While still 14 years old, the plaintiff worked at “Booster Juice”, where
she made smoothies. She said it was hard for her to reach over the counter to
customers. She agrees that she did not tell Mr. Trainor, a Vocational
Rehabilitation expert, that she had any limitations at that job. She also said
that management was “mean” to her and she wasn’t prepared to stay there and
tolerate that when it “hurt her body”. In cross-examination she said that she
had asked for days off to play soccer but her boss was not accommodating so she
left the job. She worked there on a part-time basis for about seven months.

[77]        
The plaintiff was next employed as a sales person at a clothing store,
known as “Extreme”, in a Kelowna mall. She started on a part-time basis and
worked her way up to about 35 hours a week in the summer of 2011. She had
graduated from Kelowna Secondary school in June 2011. At that time she was 18
years old.

[78]        
Her family moved from Kelowna to Abbotsford in September 2011, and she
worked at a Superstore in Chilliwack from October to December. She then started
working at an “Extreme” store in Abbotsford on a full-time basis. For a brief
period she worked at both the Superstore and Extreme. She told Ms. Ingbritson,
an Occupational Therapist, that she left Superstore because of the pain she
experienced. She admitted in cross-examination that she did not tell her it was
because she had the opportunity to work full-time at Extreme.

[79]        
The plaintiff moved back to Kelowna in May 2012. She started working at
a clothing store called “Boathouse” and remained there until April 2013. She
said she left that job because she did not like the manager and there was an
unfounded allegation that she had stolen something.

[80]        
She also began working evenings at a beer and wine store called
“Woody’s” in August 2012, and continued with that job until April 2015. She
also worked at Woody’s Pub bussing tables for about two months. There was no
evidence as to why she left that job however she said that she had difficulty
stocking beer on the shelves.

[81]        
In 2014, she became an independent “Scentsy Canada” consultant. Her job
was selling a device that produces a pleasant scent in a house. She has
continued with that job to the current day.

[82]        
At the time of the trial the plaintiff was working at her counsel’s
office in Kelowna.

[83]        
The plaintiff testified that she wants to be a care-aid and work with
elderly people in a care home but she is concerned that her physical condition
would not allow her to assist people when they needed help.

[84]        
Alternatively she says she would like to be a medical office assistant.

[85]        
She admitted that she did not get very good grades at high school and
would have to upgrade her courses to qualify as a care-aid. She said that she
could upgrade at Vancouver Career College or Sprott Shaw but does not know what
the tuition is at those institutions. She said that she had been saving her
tips for her education but had to use that money to pay for her car insurance
on a car that she is leasing.

Report of Occupational Therapists

Rebecca Ingbritson

[86]        
Ms. Ingbritson reported that the plaintiff could work at a “Light”
physical demand level with limitations in sustained or repetitive postures. She
said that the plaintiff demonstrated poor tolerance for sustained low level
work, sustained work above shoulder level, static positions including standing
and sitting, and heavy lifting. She opined that her limitations were due to
bilateral hip, knee and low back pain.

[87]        
Ms. Ingbritson’s testing in November 2013, indicated that the plaintiff
had “good low back health” and, in cross examination, agreed that she was
capable of light to medium lifting. She said that that the plaintiff would not
be able to safely lift two flats of beer weighing 40 pounds. I noted that the
plaintiff testified that she was able to lift two flats of beer at her waste
level.

[88]        
Ms. Ingbritson said that the plaintiff would likely improve her
strength to the medium level if she followed the exercise program recommended
by Dr. Shuckett.

[89]        
It was apparent that Ms. Ingbritson understood that the plaintiff
did not play soccer after the 2006 accident. The plaintiff also told Ms. Ingbritson
that she quit the Boathouse and Superstore because of unmanageable pain when
that was not her evidence at trial. Ms. Ingbritson said that information
was significant and a real life confirmation of the plaintiff’s function.

[90]        
The plaintiff’s evidence was that she left the Boathouse because she did
not like her boss and took on a job with more hours at Woody’s Pub. As to her
job at Superstore, she told Niall Trainor that she stopped working there
because of the long commute and because she found a job with more hours at
Extreme.

[91]        
Although the plaintiff reported functionally limiting pain to Ms. Ingbritson,
Ms. Ingbritson said that the plaintiff performed better than the uninjured
population on various tasks.

Niall Trainor

[92]        
Niall Trainor is a Registered Rehabilitation Professional. He performed
a vocation rehabilitation assessment of the plaintiff with a view to
determining whether her value in the work force has been affected by the
injuries she sustained in the accident.

[93]        
Mr. Trainor summarized his conclusions at page 14 of his report in
Exhibit 11:

In my opinion, on account of Ms. Scott’s
limited aptitude for formal training, pre-morbidly she depended significantly
on her physical capacity as a mainstay of her employability i.e., many of her
pre-morbid vocational options involve physically demanding work. Accordingly,
the loss of physical capacity has significant ramifications for her
employability to the extent that there are fewer occupations to which she is
well-suited and she is rendered a less attractive prospective employee on
account of her reduced versatility and potential need for accommodation. Importantly,
in my opinion, she is now ill-suited to the occupation of Care aide on account
of her pain and functional limitations. I was able to identify a number of less
demanding occupations that fit with her employability profile. Some of these
would be available to her on the basis of her current qualifications, while
others require some formal training at the post-secondary school level.

[94]        
The evidence of Ms. Tiffany Lalonde, the manager of Extreme when
the plaintiff worked there, is inconsistent with the findings of Mr. Trainor.
She testified that the plaintiff was a good employee and, recalling in
particular the Christmas season of 2014, said that she did not notice the
plaintiff having any limitations nor did she ask for any accommodation.

[95]        
As Mr. Trainor relied on the opinions of Ms. Ingbritson he
assumed that the plaintiff was limited to sedentary and light occupations. In
cross examination, Ms. Ingbritson agreed that the plaintiff’s strength was
approaching the medium level. She also confirmed that the plaintiff was likely
to become medium strength if she followed the recommended exercises.

[96]        
It appears that the occupational options for the plaintiff suggested by Mr. Trainor
are not very reliable because they were based on his erroneous assumption of
her capabilities. If the plaintiff attains medium strength it seems that she
will not face the limitations that he mentioned in his report.

[97]        
Mr. Trainor also assumed that the plaintiff would require
accommodation from an employer and that her limitations would result in
prolonged absences from the work place. He assumed that she worked as a server
at Woody’s on Wednesdays to avoid the lifting requirements on that day.

[98]        
Those assumptions are not supported by the evidence.

[99]        
Notwithstanding his assumptions, Mr. Trainor noted that the
plaintiff had not missed any shifts, left early or requested any accommodation
from her employers. When he met the plaintiff, she had worked at Woody’s pub
for 17 months.

[100]     While of
the view that being a care aid was not a realistic option for the plaintiff
(based on his erroneous view of her capabilities) he noted a number of
occupations in which she was interested where she could earn a similar wage to
that of a care aid, many of them not requiring further training or upgrading.

[101]     There are
a number of other facts or assumptions referred to by Mr. Trainor which
are not supported by the evidence of the plaintiff. He reported that the
plaintiff was in shock after the accident and tried to run from the paramedics
at the scene. No such evidence was given by the plaintiff at trial. She also
told Mr. Trainor that she had been admitted to the emergency ward which
was not the evidence at trial.

[102]     Mr. Trainor
was of the view that the plaintiff was limited to working eight hour days. The
evidence was that she worked more than eight hours on a number of occasions
including a 14 hour day. She has also worked at two jobs for a period of time.

Analysis

[103]     Where, as
in this case, the plaintiff’s symptoms, considered by medical and other experts
some seven to nine years after the accident, were based on the subjective
evidence of the plaintiff with little, if any, objective evidence supporting
her claims, a trial judge must be careful assessing the evidence and the
plaintiff’s credibility (Price v. Kostryba (1982), 70 B.C.L.R. 397 S.C.).

[104]     The test
for establishing causation in this case is the “but for” test proven on a
balance of probabilities. Using common sense may be sufficient and there is no
requirement for scientific evidence. It is a factual determination (Clements
v. Clements, 2012 SCC 32).

[105]     While it
has been established that the plaintiff suffered some injuries as a result of
the motor vehicle accident in 2006, this court must be diligent in determining
the duration of the symptoms of the injuries and the extent to which those
injuries affected the plaintiff’s ability to function.

[106]     Of
particular significance in this case is the plaintiff’s credibility. I will
provide some examples of where it was lacking.

[107]     In direct
examination the plaintiff said that she did not do vacuuming at her home. Her
father testified that she did the vacuuming in the house. She also testified
that one of her duties when she worked in the tanning salon was vacuuming.

[108]     The
plaintiff’s testimony regarding her approach to saving money to pay for her
future education reflects on her credibility. At trial she testified that she
had stopped saving her tips in January 2015, and was living off of them. In her
examination for discovery on March 4, 2015, the plaintiff said that she was
working towards her goal of a career in the medical field by saving all of her
tips.

[109]     While on
the one hand the plaintiff wanted this court, as well as some of the experts,
to accept that she had limitations in some types of employment it emerged from
the evidence that she did not leave her jobs because of pain or difficulties in
functioning.

[110]     Ms. Ingbritson
testified that the plaintiff told her that she had left her job at the
Superstore and the Boathouse because her pain was not manageable. At trial, the
plaintiff testified that she left the Boathouse because her manager was
“horrible” and she had been bullied. Mr. Trainor had been told by the
plaintiff that she had been accused of stealing at the Boathouse so she quit.

[111]     The
plaintiff told Mr. Trainor that she left her job at Superstore because of
the long commute and because she could work more hours at Extreme.

[112]     In her
direct testimony the plaintiff indicated that she left her job at Booster Juice
in 2008 because her manager was “mean” and the work “hurt her body”. In
contrast, she told Mr. Trainor that she was playing soccer at that time
and her manager at Booster Juice would not give her time off to play so she left.
He said that the plaintiff did not recall any limitations in doing her job
there. In cross examination she admitted that she did not have any limitations
at that job.

[113]     The
plaintiff said that she experienced headaches consistently after 2006 as a
result of her injuries. She testified that her neck constantly hurt and caused
her headaches four or five times a week. It is notable that headaches are not
mentioned in the medical records between 2006 and 2012. Under cross examination
the plaintiff said that she could not dispute that she did not have headaches
in 2006 and agreed that she did not complain about headaches to her family
doctor after the 2006 accident. She said that she complained to her father
about her headaches but he did not give any evidence of her complaining about
headaches.

[114]     The
plaintiff alleges that her pain from the 2006 accident was made worse by the
2010 accident. The plaintiff testified in direct examination that she was not
hurt in the 2010 accident. Under cross-examination the plaintiff said that she
suffered neck and back pain and had complained of that to her doctor who
diagnosed her with whiplash. He referred her for physiotherapy but she did not
attend.

[115]     While the
plaintiff said that she had never ridden on her father’s motorcycle, he
testified about two occasions when she rode on his motorcycle.

[116]     While not
going directly to her credibility there are a number of examples of the
plaintiff exaggerating her condition to support her allegations.

[117]     She
testified that her neck was tight and had no range of movement. She also said
that caused her headaches. Dr. Shuckett opined that the plaintiff “…had
quite a full range of neck motion with some pain”. Dr. Hirsch’s opinion was
that although the plaintiff demonstrated to him that her neck motion was
restricted, her spontaneous movements such as the full right and left rotation
of her neck while laying on her back indicated that the plaintiff had a
positive range of motion in her neck.

[118]     Dr. Shuckett’s
report said that the plaintiff’s headaches seemed like tension muscular
headaches related to when she was stressed.

[119]     Apart from
noting that headaches were not mentioned by any practitioner including her
family doctor for some time after the 2006 accident Dr. Schuckett deferred on
the causation to a neurologist. A neurologist was not among the expert
witnesses at trial.

[120]     Based on
the results of the plaintiff from Waddell tests performed by Dr. Hirsch it
was his opinion that she demonstrated “exaggerated illness behavior”.

[121]     The
plaintiff testified that she walked with “her own little swag” and that her
limp had become worse from 2006 to 2014. Neither Dr. Shuckett nor Dr. Hirsch
noticed a limp.

[122]     The
evidence suggests that her hip pain may have started in about September 2007,
15 months after the accident. Although the plaintiff told Dr. Shuckett
that her hips were bruised in the 2006 accident there was no evidence led by
the plaintiff at trial about her bruising other than the notes of Dr. McCloskey
which do not mention bruising of her hip. He does not note any complaint of hip
pain until September 2007.

[123]     The
plaintiff’s testimony in direct examination created the impression that she had
injured both knees. In cross-examination she admitted that the problems with
her left knee began in September 2007 and around that time she had fallen down
some stairs at her father’s house. She said that she has had problems with knee
pain ever since.

[124]     The
plaintiff’s different versions of the accident indicate her willingness to
either exaggerate or make up versions of what happened when the motorcycle
entered the cross-walk. At trial and at her examination for discovery she said
that she was struck first, knocked over and landed on one of her friends. She
told Mr. Trainor that she landed on the pavement. The statements of two of
the other girls on the cross walk indicate that one of them was hit first and
the other girls fell on each other. The statements of witnesses do not indicate
that anyone was thrown into the air. Dr. Hirsch reported that the
plaintiff told him that she was struck by the motorcycle and thrown into the
air 25 feet away from the point of impact. The evidence does not support that
version. Probably the most credible explanation is the one the plaintiff gave
at her examination for discovery namely, that she could not remember the impact
of the accident on her.

[125]     I find
much of the plaintiff’s evidence regarding her injuries from the accident in
2006 to lack credibility. I also find that she has exaggerated the effect of
the injuries that she did sustain.

[126]     With
regard to the expert reports it is significant that the plaintiff was not
forthright in describing the impact of the 2006 accident on her.

[127]     The
plaintiff told a number of the experts who testified that she had to stop
playing soccer after the accident in 2006. For some of those experts that
information was considered important in arriving at their opinion regarding the
plaintiff’s condition. The evidence was that the plaintiff had not given up
playing soccer. Indeed, she continued playing after the accident and until she
was 18 years of age.

[128]     The
plaintiff tried to minimize her participation in soccer after the accident by
saying that she never played a full game. Under cross-examination she agreed
that none of the soccer players on her team played a full game.

[129]     In my view
the plaintiff’s misrepresentation of her condition following the accident is
significant. It indicates that the plaintiff wanted those professionals to
believe that she was incapable of functioning as a soccer player after the
accident when in fact she was. It also reduces the weight that I can give to
the opinions of experts regarding the plaintiff’s functionality when they were
not told of her continuing ability to play soccer.

[130]     I will
review the injuries that the plaintiff has alleged resulted from the accident
in 2006 and provide my conclusions in relation to their cause.

Neck Injury

[131]     I accept
that the plaintiff suffered some soft tissue injury to her neck as a result of
the accident in 2006.

[132]     Dr. McCloskey
noted that the plaintiff’s neck movements in July 2006, were a “little stiff”. He
did not mention any contusions in the neck or lower back. In spite of regularly
visiting her family doctor after that time he does not record any complaints
regarding her neck until December 1, 2010, after her second motor vehicle
accident.

[133]     During her
three visits to a physiotherapist in November 2007, there is no indication that
the plaintiff complained of neck pain.

[134]     When the
plaintiff visited Dr. Shuckett she complained of neck pain occurring twice
a month. I accept Dr. Hirsch’s opinion that some of the plaintiff’s
complaints were psychologically driven and that the plaintiff sustained fairly
minor injuries to her neck in the 2006 accident and has made a full recovery.

[135]     I have
concluded that the injury to the plaintiff’s neck from the 2006 accident was
minor and I infer from the evidence that it likely resolved by the end of 2006.

Headaches

[136]     The
plaintiff testified that she had headaches within the first year of the 2006
accident but did not comment on their frequency, severity or duration. She said
that her headaches were caused by her neck pain but told Dr. Shuckett that
they were brought on by anxiety. She did not complain to Dr. McCloskey or
her physiotherapist about headaches. According to Dr. McCloskey the plaintiff
is anemic and one of symptoms of anemia is a headache.

[137]     I do not
accept that the plaintiff suffered headaches as a result of the 2006 accident.

Back and Hip Pain

[138]     On July 5,
2006, Dr. McCloskey did not record any complaints by the plaintiff
regarding hip or low back pain. Low back pain is recorded by Dr. McCloskey
on December 1, 2010, following the 2010 accident. He first noted complaints by
the plaintiff regarding her hip in 2007, 15 months after the 2006 accident.

[139]     Dr. Hirsch
opined that the plaintiff’s hip and low back presented as normal but that she
displayed “exaggerated illness behavior” which is sometimes found in
individuals who present with low back pain.

[140]     Dr. Shuckett
noted that the plaintiff’s leg length discrepancy was not likely caused by the
2006 accident and it would predispose someone to hip and low back pain,
particularly if they played sports. Dr. Shuckett was not aware that the
plaintiff played soccer for five years following the accident. Dr. Shuckett
also assumed that the plaintiff’s hip complaint started with the 2006 accident
even though there was no evidence at trial about a bruised hip from that
accident.

[141]     I have
concluded that the evidence does not establish that the plaintiff’s complaints
regarding her hip and lower back were caused by the 2006 accident.

Knee Pain

[142]     Although
the plaintiff testified in direct examination that she injured both knees in
the 2006 accident, in cross examination she agreed that it was only her right
knee that bothered her after the accident. She also agreed that she started
having problems with her left leg in 2007 after she had fallen down some stairs
at her father’s house.

[143]     Dr. McCloskey
reported tenderness around the plaintiff’s right knee on July 5, 2006.

[144]     Dr. Shuckett
said that she believed that the plaintiff’s right knee hurt her soon after the
accident but was quite normal when she examined her. Dr. Shuckett resiled
from her opinion that the 2006 accident caused the left knee complaints of the
plaintiff.

[145]     Dr. Hirsch
said that the plaintiff’s knee symptoms were, “…by her own account … fairly
minor.”  He said that at the time of his examination her knees were
“unremarkable”.

[146]     In my view
the evidence has not established that the plaintiff’s complaints about her left
knee were caused by the 2006 accident.

[147]     I accept
that the plaintiff suffered a minor injury to her right knee which, I infer
from the evidence, likely resolved by the end of 2006.

[148]     To be
clear, it is my view that the evidence does not establish that the plaintiff is
currently suffering any pain, including chronic pain, that was caused by the
2006 accident.

Psychological Injuries

[149]     Dr. Lea,
a psychologist, found the plaintiff to have PTSD but with a good prognosis.

[150]     Dr. Solomons,
a psychiatrist, found that the plaintiff did not have PTSD and opined that she
never had the symptoms of PTSD.

[151]     Dr. Lea
was under the impression that the plaintiff was directly struck by a motorcycle.
In my view the evidence did not establish that the plaintiff was struck
directly.

[152]     Dr. Lea
had inaccurate information from the plaintiff that she had given up playing
soccer following the accident and no longer went off-roading with her partner. The
evidence is clear that the plaintiff continued to play soccer. In addition, the
plaintiff’s boyfriend, Jonathan Artstall testified that the plaintiff went
“quadding” with him once a month for 30 to 45 minutes. Dr. Lea was also
not told about the plaintiff’s fall down some stairs in 2007.

[153]     The
plaintiff’s complaints of problems sleeping are at odds with the evidence of Dr. Shuckett
who says that once she falls asleep she has no problem sleeping.

[154]     Based on
her complaints to Dr. McCloskey in 2006 he urged her to attend counseling.
She did not. She also indicated in her testimony that she did not see a need
for psychotherapy or counseling.

[155]     I accept Dr. Solomons’
opinion that the plaintiff did not meet the pre-conditions for a diagnosis of
PTSD and did not experience the symptoms required for such a diagnosis.

[156]     Assuming
some of her symptoms reflect psychological problems, the evidence does not establish
that they were caused by the 2006 accident.

The Plaintiff’s Functioning

[157]     With
regard to the plaintiff’s function, it is my view that her function is normal. Even
when the plaintiff reported pain, Ms. Ingbritson said that she performed
at a high level.

[158]     Following
the 2006 accident the plaintiff completed high school and continued to play
soccer until she turned eighteen years of age. She worked at numerous jobs
during high school and was employed on a full-time basis after graduation
sometimes working at two jobs and long hours on occasion. She has not been
limited in travelling with her boyfriend or family since the accident. At the
time of trial she worked full-time at her lawyer’s office earning $24,000 per
annum. It appears that she lives a full life largely unaffected by the 2006
accident.

[159]     Even if
the plaintiff is not able to qualify for the position of care aid (for reasons
of her limited scholastic achievement and aptitude and, perhaps, her normal
strength limitations), I do not accept that the plaintiff’s function would
prevent her from employment at a job where she could earn a salary equivalent
to or greater than a care aid such as a medical secretary or recreation leader
in a senior’s residence. These are among the recommended occupations for the
plaintiff in Mr. Trainor’s report.

[160]     While it
was not argued, I should comment on the implications of the involvement of the
plaintiff in a motor vehicle accident in 2010 and 2011. The evidence of the
plaintiff was that she was not hurt in 2010 accident. In respect of the
accident in 2011 she received $2,500 as damages from ICBC but testified that
she did not use that money for treatment because she did not need treatment. In
my view the plaintiff’s injuries from the 2006 accident had resolved by the end
of 2006 and there is no evidence to show that they were aggravated by the
accidents in 2010 or 2011.

Non-Pecuniary Damages

[161]     Based on
the decision of our Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34,
I must consider the following factors in determining an award of non-pecuniary
damages:

·      
Age of the plaintiff;

·      
The nature of the injury;

·      
The severity and duration of the pain;

·      
Disability;

·      
Emotional suffering;

·      
Loss or impairment of life;

·      
Impairment of family, marital and social relationships;

·      
Impairment of physical and mental abilities;

·      
Loss of lifestyle; and

·       The
plaintiff’s stoicism.

[162]     The
plaintiff argues that $150,000 is the appropriate amount of non-pecuniary
damages that should be paid to her. She relies on the following cases, namely, Cantin
v. Petersen, 2012 BCSC 549; Olson v. Ironside, 2012 BCSC 546; Houston
v. Kine, 2010 BCSC 1289; and Parfitt v. Mayes et al, 2006 BCSC 125.

[163]     Cantin
v. Petersen, has no application to the facts in this case. In that case,
the plaintiff suffered multiple injuries from a very serious motor vehicle
accident. Her injuries were so severe that they rendered Ms. Cantin
incapable of doing any job in the labour market.

[164]     In Olson
v. Ironside, the plaintiff was injured in a significant rear end collision.
As a result of her continuing pain after the accident the plaintiff was unable
to perform the physical tasks associated with her employment and she was
terminated. She was only able to work part-time with accommodation being made
for her symptoms. The court accepted that the accident caused the plaintiff
chronic soft tissue injuries, chronic headaches on a daily basis, chronic sleep
disruption; PTSD and major depressive disorder. She was awarded $100,000 in non-pecuniary
damages. I do not consider that case to be applicable to the facts in the case
at bar.

[165]     In Houston
v. Kine, the plaintiff was awarded $110,000 for non-pecuniary damages. The
court accepted that as a result of injuries sustained in a motor vehicle
accident, the plaintiff continued to suffer pain and discomfort in her neck and
upper back and constant chronic pain in her lower back four years after the
accident. The experts opined that she would suffer chronic pain for the rest of
her life. I note that the Court of Appeal has ordered a new trial in that case.

[166]     I do not
consider Houston v. Kine, to be of assistance. In the case at bar the
plaintiff’s injuries from the 2006 accident were minor in nature and, as I have
said, her complaints of pain many years after that accident are either not
credible or exaggerated.

[167]     In Parfitt
v. Mayes et al., the plaintiff received $120,000 as non-pecuniary damages. The
court in that case found that as a result of a motor vehicle collision, the plaintiff
suffered and continued to suffer pain but nevertheless carried on with her life
as best she could. It is distinguishable from the case before me because I am
not satisfied that the plaintiff’s current complaints of pain are a result of
the 2006 accident.

[168]     The
defendant submits that non-pecuniary damages in the range of $5,000 to $20,000
are appropriate in this case.

[169]     In my view
the facts and reasoning of Barrow J. in Jensen v. Felker, 2008 BCSC 541,
suggest that the amount of non-pecuniary damages awarded in that case
approximate those that should be awarded in the case before me. After reviewing
a number of authorities where short term injuries produced symptoms in the
plaintiffs for 12 to 14 months, Barrow J. awarded non-pecuniary damages of
$18,000.

[170]     While the
evidence supports a finding that the plaintiff’s injuries resolved within a
period of about six months following the accident I am prepared to assess
non-pecuniary damages on the basis that some of her symptoms may have continued
until November 2007, which is a period of about seventeen months after the
accident.

[171]     I award
the plaintiff $20,000 in non-pecuniary damages.

Cost of Future Care

[172]     The
purpose of an award for the costs of future care is to restore, as best as
possible with a monetary award, an injured person to the position she would
have been in had the accident not occurred. The award must be based on medical
evidence as to what is reasonably necessary to promote the mental and physical
health of the plaintiff: Gignac v. Insurance Corporation of British Columbia,
2012 BCCA 351, at para. 30. There must be some evidentiary link between a
doctor’s assessment of pain or disability and the care recommended by a
qualified health care professional: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144, at para. 39.

[173]     As I have
not found that the plaintiff’s current complaints were caused by the 2006
accident I am unable to find that any amount is reasonably necessary for her
future care. I would add that even if some of the programs recommended such as
walking, swimming and cycling were necessary for the plaintiff in the future in
my view it is not likely that she would use any funds for the purposes
suggested. She has had ample time to engage in a rehab program and has failed
to do so. She received funding confirmation and an advance in early 2015 and at
the time of trial had not used the funds beyond paying some user fees.

[174]     There is
simply no evidentiary basis that would entitle the plaintiff to home making
assistance. I am satisfied from the evidence that the plaintiff is capable of
performing the ordinary tasks of caring for and cleaning a home.

[175]     The only
evidence supporting the plaintiff’s need for psychological counseling is Dr. Lea’s.
He recommended 20 visits in 2012. It appears that her condition has changed
since his assessment to the point that her current presentation does not
require psychological counseling.

[176]     As to her
future need for Tylenol, the plaintiff’s evidence is that she uses Tylenol two
or three times a month for her headaches which I have found are not related to
the 2006 accident.

Past Income Loss

[177]     The
plaintiff seeks what is described as a nominal sum of $5,000 for past loss of
income.

[178]     The
evidence does not establish that the plaintiff has lost any past income. She
has not missed work because of the symptoms that she has alleged.

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

Loss of Future Income Earning Capacity

[180]     The
plaintiff bases her claim for loss of future income on her inability to become
a care aide. The expert, Mr. Carson, reported that her lifetime earnings
plus benefits as a care aide would be $918,900. When the actual earnings of the
plaintiff are determined based on the limitations resulting from the accident,
the plaintiff argues, the amount is expected to be $464,579. After deducting
that amount from the earnings and benefits of a care aide and allowing for the
plaintiff being involved 10% less in her future employment she rounds out her
claim for loss of future income to $500,000.

[181]     In my view
the plaintiff has not established an entitlement to an award for loss of future
income earning capacity. Even if I accepted that being a care aide was a
realistic occupation for the plaintiff, I accept Dr. Hirsch’s opinion that
the plaintiff has the physical aptitude to work full-time as a care aide or
another occupation of similar physical demands if she wishes.

[182]    
I decline to award any damages for loss of future income earning
capacity.

“Bowden, J.”