IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151202

Docket: M124968

Registry:
Vancouver

Between:

Kathryn Barbara
McLean

Plaintiff

And:

Tegan Lee Kraft

Defendant

Before: The Honourable Madam
Justice Watchuk

Reasons for Judgment

I.                
INTRODUCTION

[1]            
On September 11, 2010 the vehicle driven by the plaintiff, Kathryn
McLean, was struck from the rear by the vehicle driven by the defendant. 
Liability for the motor vehicle accident has been admitted.

[2]            
Ms. McLean claims for damages arising from the injuries she
sustained in the accident under the headings of general and special damages,
past and future loss of income, future care costs and loss of housekeeping
capacity.

[3]            
Although the plaintiff has recently changed her name to her maiden name,
Kathryn Nangle, for ease of reference in these reasons I will use the name in
which the action was commenced, Kathryn McLean.

II.              
ISSUES

[4]            
It is not disputed that Ms. McLean was injured in the motor vehicle
accident (referred to as “the accident” or “the collision”).  The issues for
determination are the extent of those injuries, the degree to which she has
recovered, and the damages to which she is entitled.

[5]            
On behalf of the plaintiff it is submitted that Ms. McLean has
suffered from her injuries, including a hip injury, for four years and that most
of the symptoms will continue into the future.

[6]            
The defendant concedes that the plaintiff sustained injuries to her
neck, back and left arm, and developed headaches following this accident.  It
is the defendant’s submission that these injuries were largely resolved within
2 years, or by the fall of 2012.

[7]            
Credibility is in issue.  The defendant submits that as Ms. McLean made
some inaccurate reports of her circumstances to her family doctor, his evidence
and reports and that of other doctors and treaters cannot be relied upon.  The
issue of reliability of the plaintiff’s evidence is raised by her inability to
recall the progression of her injuries and recovery.

[8]            
An issue is also raised by the defendant who submits that the evidence
of the plaintiff is insufficient to support her claims for damages.  In
response, the plaintiff submits that the court can draw inferences from the
evidence presented in the trial as a whole.

[9]            
Two of the treating physicians, the family doctor and a specialist in
sports medicine, and a physiotherapist testified at trial with their clinical
records but did not provide expert opinions or reports.  The defendant says
that those witnesses cannot be shielded from cross-examination on their medical
opinions and that an adverse inference should be drawn, particularly with
regard to the failure to call the family doctor as an expert witness.

[10]        
Further, both counsel provided extensive submissions on the issue of the
degree of weight or reliance that should be placed on the reports and evidence
of Mr. Russell McNeil, an occupational therapist, and Mr. Dan Bos, a
physiotherapist.

III.            
EVIDENCE AT TRIAL

[11]        
The relevant evidence of the witnesses is summarised below.  It will
form the basis of the necessary findings of fact which will be addressed in the
later section headed Discussion.

A.             
THE PLAINTIFF

1.              
Background

[12]        
The plaintiff was born in 1969 and raised in North Vancouver.  In high
school, in approximately 1986, she injured her left Achilles tendon in track
and field.  She was injected with cortisone which resulted in her being put in
a cast.  This was a negative experience for her.

[13]        
The plaintiff graduated from high school in 1987.  She did not take any
post-secondary education.  Her first job after high school was a company called
the Mail Room where she did secretarial work for less than a year.  She then
worked for a company called Can Tec in an administrative secretarial position until
she was married in 1988 to Bruce McLean.

[14]        
Ms. McLean moved to Mayne Island with her husband because her
husband’s employer moved there.  Prior to the birth of her first child Julia in
1989, they moved back to the mainland.  She then went to work at Capilano
College at the main reception and filling in with secretarial work for other
departments.  Her second child, Emily, was born in 1993.  She then went to work
at Dr. Sweeney’s dental office in West Vancouver where she worked approximately
30 hours a week.  Initially she worked at reception and then she gradually
started doing dental assisting.  In 1996 her son Jakob was born.

[15]        
The family then moved to Abbotsford.  At that time her husband had
started his own construction company called Coast Mountain Construction doing small
commercial projects.  The plaintiff did work for Coast Mountain Construction
such as payables, statutory declarations and other paperwork, as well as physical
work such as fetching and carrying and cleaning up.  This continued until they
separated in 2006.

[16]        
In 2002 the plaintiff began work at Dr. Aghdasi’s dental clinic.  Initially
she assisted Dr. Penner, who did orthodontics once a month there on Fridays. 
Her youngest child, Sophia, was born in 2002.  Later she began assisting Dr. Aghdasi
on Monday evenings at the clinic.

[17]        
With regard to homemaking, the plaintiff was proud that she kept a clean
and tidy home.  She did the cooking for the family and made wholesome food
which was particularly important to her because her daughter Emily has juvenile
diabetes.  She was an avid and frequent baker.  Her favorite thing to bake was
pie and she took pleasure from people enjoying her baking.

[18]        
Aside from baking, the plaintiff also did many crafts including scrapbooking,
cards and gift wrapping.  She also did seasonal crafts such as wreaths,
ornaments and advent calendars.  At Christmastime she would make approximately
30 cards.  Like her baking the plaintiff took pleasure in giving people her
handmade crafts.  Her scrapbooking also provided an avenue for socializing
including scrapbooking trips with her friends.  Scrapbooking also was a form of
telling her family story.

[19]        
The plaintiff participated in family trips to Whistler and Lasqueti
Lake.  They also went on regular camping trips.  In the summer, time was spent
at Hatzic Lake in a trailer.

[20]        
As a result of her husband’s decision in June 2006 that he did not want
to be married anymore, they separated and later divorced.  After the
separation, the plaintiff’s financial circumstances became difficult and
stressful.  In the fall of 2008, the plaintiff was forced to leave the family
home due to foreclosure.  She and her children lived for a short period of time
in a friend’s basement.

[21]        
In November 2008, the plaintiff began full time work at Hendrix Restaurant
Equipment and Supplies doing administrative and secretarial work and running
the showroom.  She also continued working Monday nights at the dental clinic
assisting Dr. Aghdasi.  It was stressful to be a single mother and working
more than full time hours, but she testified that the Hendrix job itself was
not stressful.  Her family doctor, Dr. Dueck, prescribed medication for
stress.  The plaintiff’s use of prescription medication prior to the accident
was not positive.  She tried the medication that the doctor recommended for her
anxiety but it made her nauseous.

[22]        
The plaintiff was laid off from Hendrix in March 2010 because her position
was made redundant.  She returned to the dental office working four hours per
week on Mondays.  It became the plaintiff’s intention to find a full time job
in a hospital doing administrative work as she wanted job security and medical
benefits. The Abbotsford Regional Hospital
and Cancer Center opened in 2008 but she also considered moving to Vancouver.

[23]        
In order to facilitate a job at a hospital doing administrative work,
she completed an on-line medical terminology course.  Prior to the accident she
started looking at hospital job postings.  She thought her chances at finding a
hospital administrative job were good because her sister is a radiation therapist working at the B.C. Cancer Agency and her
brother in-law is an anaesthesiologist who also worked at the B.C. Cancer
Agency and B.C. Women’s Hospital. 

[24]        
In 2009, in her fourth move since the separation, the plaintiff moved
with her children to a townhouse in Abbotsford where she continues to live with
the two youngest children.  Emily, her partner and baby, Greyson, reside in the
basement suite of the townhouse.

2.              
The Accident of September 11, 2010

[25]        
The accident occurred on Saturday, September 11, 2010 in Abbotsford at
the railway tracks near the intersection of Highway 11 and Clayburn Road.  The
plaintiff was driving and still drives a 2004 Toyota Sienna minivan.  At the
time of the accident the plaintiff was with her son on their way to drop him off
at the driving range.  She was stopped at a stop sign before a set of railway
tracks.  Her right foot was on the brake at the time of impact.  She described
the rear end impact as shockingly hard.  It propelled her minivan forward and
over the first railway track.

[26]        
She did not strike anything within her vehicle but did recall feeling
the seatbelt “lock across (my) body” and was conscious of her neck as well as
her leg on the brake pedal.  Her airbag did not deploy.  She was able to exit
the vehicle, speak with and comfort the defendant and eventually drove away
from the accident site.  She took her son to the intended destination of the
golf driving range and returned home.

[27]        
It was her evidence that after checking to see whether her son was all
right, she exited the minivan and went to check on the driver of the motor
vehicle that had hit her.  The vehicle that rear-ended hers sustained
significant damage.  She observed the hood was crumpled, the windshield was
shattered and the airbags had deployed.  The plaintiff also gave evidence as to
the emotional state of the defendant at the scene.  She hugged the defendant
who was crying.

[28]        
The minivan bumper sustained damage in the accident and she recalled
seeing misalignment and gaps between the bumper and quarter panels of the
minivan after the accident.  The minivan was repaired subsequent to the accident;
there was over $2000.00 in repairable damage.  The plaintiff testified that
subsequent to the accident the trunk leaks and the minivan gets moldy when it
rains.  The tie rod and bushing had to be replaced on the minivan and the
Insurance Corporation of British Columbia (“ICBC”) refused to pay for these
repairs.  She took the minivan back to where it had originally been repaired
after the accident on two separate occasions.

[29]        
However, there is no claim in this action for accelerated depreciation nor
is there a failure to repair claim.

[30]        
Melissa Gole was a witness to the accident.  She was traveling eastbound
on Clayburn Road and had stopped at a stop sign prior to a set of railway
tracks on the west side of Highway 11.  She saw the plaintiff’s vehicle stopped
facing hers on the opposite side of the railway tracks.  Ms. Gole then saw
a vehicle traveling westbound on Clayburn Road careen through the intersection
at Clayburn Road and Highway 11 on a yellow light into the rear of the
plaintiff’s vehicle.  On impact the plaintiff’s vehicle was pushed a few feet
forward.  She provided the plaintiff with her contact information.

[31]        
The evidence of the witness was that the plaintiff’s vehicle moved 3 to
4 feet as a result of the impact.  She observed both the defendant and
plaintiff exit their respective vehicles and “chat civilly”.  Ms. Gole did
not call anyone; she spoke to the plaintiff and remained at the accident site
for approximately 15-20 minutes.  She stated she thought the defendant
“probably did brake but again I’m not sure” as she thought the defendant
“realized too late” that the plaintiff’s vehicle was stopped.

[32]        
The defendant testified she was driving her 1995 Honda Civic at the time
of the accident.  She immediately admitted liability and apologized at the
scene itself and when she saw the plaintiff later, again apologized for the
accident.  The defendant suffered, in her words, minimal injuries.  The front
end of her vehicle was damaged, her windshield was cracked due to the airbag activating
and she was at the accident site for roughly one hour.  As best as she could
recall she sped up to “beat the yellow” then saw the stopped van and “hit the
brakes” but she could not brake in time to avoid the collision.

[33]        
The defendant confirmed that
her vehicle was significantly damaged by the accident and that it had to be
towed from the scene.  It had been old but in good condition and was ultimately
sold for scrap. No authority figures attended the accident site and
rendered assistance, tickets or comment.

3.              
Post Accident Events, Treatment and Recovery

[34]        
The plaintiff had a headache,
neck pain and back pain the evening of the accident.  She sought medical
attention the next day, Sunday, at a walk-in clinic.  Prior to the accident she
agreed to cover a co-worker’s shifts at the dental clinic.  She worked the
Monday.  The plaintiff indicated that she did not call in sick as it was
difficult to do so at the clinic and she needed the money.  The sitting, twisting
and leaning position required for chairside dental assisting was particularly
painful.  She found some activities of daily living such as grocery shopping
difficult. 

[35]        
She saw her family doctor, Dr. Dueck,
soon after.  She was given three prescriptions and she filled two of them.  She
did not fill the prescribed T3 due to prior negative side effects.  The
plaintiff however ultimately filled the prescription when she could not bear
the pain anymore.  In the weeks that followed the accident the plaintiff was in
agony. 

[36]        
The plaintiff initiated
physiotherapy on the referral of Dr. Dueck approximately a month after the
collision.  The plaintiff noted right groin pain about four to six weeks
post-collision.  She believes that it was there all along from the accident
with the low back pain but she became more aware of it with ongoing work
hours.  Dr. Dueck referred her to Dr. Chu, a physiatrist, but there
was a mix up with the appointment time and she missed it.

[37]        
The plaintiff found that
sterilizing equipment, writing charts, and creating medication packages were
some of the easier tasks at work on her body.  She found the static position
required for three-way suctioning difficult.  She avoided lifting heavier items
out of awkward places. 

[38]        
In February 2012 she
increased work to 12 hours a week.  She commenced working Monday evenings doing
reception for four hours and Tuesdays doing dental assisting for eight hours. 
The plaintiff noted that with her attempts to work more than 12 hours she had
significant aggravation of her symptoms.  Her co-workers have attempted to
assist her at work by not allowing her to access heavier and awkwardly stored
supplies like the plaster box.  She also was given the opportunity to stand
whenever possible.

[39]        
On the day of her appointment
with Dr. Greidanus in May 2014, the plaintiff was having a severe
left sciatica episode.  She states that she informed the doctor she was having
significant issues with left-sided sciatica that day and that the examination
was painful. 

[40]        
The plaintiff says that the
last scrapbook she completed was in 2011 for Emily’s graduation.  This was an
online scrapbook as she could not sit long enough to complete one herself.  The
plaintiff has not made a scrapbook for her grandson Greyson.  She now only
makes three or four Christmas cards.  The plaintiff only bakes occasionally
now.  She admits to buying store-bought cakes to celebrate family events.  In
terms of her cleaning, she does a little bit here and there.  The state of her
house is disappointing to her.  The children assist.  Having paid cleaning help
was not satisfactory.  She has not done any heavy or seasonal cleaning since
the accident.  The activities that she does with her children is reduced since
the accident.  The plaintiff has concerns as to her youngest child Sophia’s
health due to the plaintiff’s own physical limitations.  The plaintiff feels
badly that she is now a cranky mom. 

[41]        
The plaintiff states that she
recently reduced her hours of dental assisting at the clinic.  She states that
she just could not do it anymore.

[42]        
In terms of her ongoing symptoms,
the plaintiff has headaches 3 to 4 times a week instead of daily headaches.  She
has ongoing upper and low back pain.  Her right hip aches with prolonged
activity.  Her left sciatic pain is significant.

[43]        
The plaintiff states that since
starting active rehabilitation again her pain has been aggravated but she has
some better movement.

B.             
WITNESSES

1.              
Family and Friends of the Plaintiff

(a)           
Julia McLean

[44]        
Ms. Julia McLean, who is now 25 years old, is the plaintiff’s
eldest child.  She works at Children’s Corner, a facility that provides respite
care for children with open files with the Ministry of Children and Families.  Until
May 2011, Ms. McLean resided with her mother and siblings who are now 22,
18 and 12 years old.

[45]        
During her childhood she recalled her mother baking almost daily.  Her
mother did all the cooking and they rarely ate frozen or processed food.  Her
mother prepared the lunches.  Growing up they only took medication if it was
absolutely necessary.  Her mother kept a spotless house and taught her how to
clean.  The children’s chores included their bathroom, bedrooms, vacuuming and
dusting.

[46]        
Julia recalled her mother gardening.  Her mother and father built a
large deck.  She identified a photograph of her and her mother gardening on the
deck that her parents built.  She recalled that as a child they went camping
every summer and in addition they spent time at a trailer at Hatzic Lake.  As a
family they took a couple of trips to Alberta and would go to Whistler and
Lasqueti Island.  Ms. McLean said that family trips still took place after
her parents separated, and in the summer of 2010 the plaintiff took her
children to Whistler.

[47]        
Julia also observed her mother doing crafts prior to the accident including
sewing, cardmaking and scrapbooking.  Her mother would sew them matching
clothes.  She gave evidence as to the extensive activities that she, Jakob and
Emily participated outside of school and that it was her mother who would take
her to practices and games.  Her mother also volunteered at the school.  After
her parents’ separation, her mother was still busy with these activities.  After
her mother started working full-time at Hendrix there were more slow cooker
meals.  She and her mother also went for vigorous walks together.

[48]        
At the time of the collision, Julia was living at home and was a
full-time university student who was also working approximately 30 hours per
week.  After the collision, she drove her mother to physiotherapy as her mother
had difficulty driving.  Julia did more house cleaning after the collision.

[49]        
In May 2011, Julia moved out of the family home and commenced a
full-time job.  Most weeks she returns home from Tuesday noon to Thursday noon
on her days off.  In May 2014 she assisted her mother to attend a medical
appointment with Dr. Greidanus and observed her limping and shuffling.

[50]        
Since the collision she has observed her mother baking a couple of times
and doing some crafts.  They have been on short trips to Lynden, Washington and
to Penticton.  She has gone walking with her mother a few times and said that her
walking is much different now. 

(b)           
Laura Larsen

[51]        
Ms. Laura Larsen is a friend of the plaintiff and also works
at the same dental office as a certified dental assistant.  They met in 2000
through a mutual friend.

[52]        
Prior to the accident they would go walking, meet for coffee, and go
shopping together.  Ms. Larsen described these walks as fast and the plaintiff
as a motivated walker.  The plaintiff’s home was meticulous and the plaintiff
was a baker.  Ms. Larsen stated that the plaintiff helped her move and helped
her pack boxes, clean and scrub walls.  The plaintiff helped Ms. Larsen go
through her closet and get rid of old clothes.  She subsequently received from
the plaintiff a scrapbook made up of the old clothes which she got rid of that
day. 

[53]        
Since the collision, the friends continue to do the same things such as
coffee dates, walks and picnics, but the walks are more leisurely.  There are
now no cookies at the plaintiff’s home which is “not quite the same”.

(c)           
Tyra Crump

[54]        
Ms. Tyra Crump is a friend of the plaintiff.  They met in 2008
at their children’s school.  Ms. Crump was also a single working mother
and involved in volunteering for the same non-profit organisation.  Ms. Crump
and the plaintiff provided each other with childcare assistance which involved
carpooling, after school care and snacks.  This arrangement lasted
approximately two years while they were both working full-time.

[55]        
Ms. Crump described the plaintiff’s home as “supermom standard”,
being very clean and tidy and organized.  She described the healthy snacks her
son was provided while in the plaintiff’s care.  She trusted and continues to
trust the care of her son to the plaintiff.

[56]        
Ms. Crump also indicated that she would have coffee dates with the
plaintiff either at a coffee shop or at their homes.  At the plaintiff’s home
she was served home-made baked goods.  She received handmade cards from the
plaintiff.

[57]        
The plaintiff’s activity level prior to the collision was described as
really busy with four active children.  Ms. Crump described the
plaintiff’s personality prior to the collision as kind and funny and
optimistic.  Since the collision she has not seen the plaintiff as much, partly
due to the plaintiff’s doctor and physiotherapy appointments.  Their friendship
and involvement in volunteering for the non-profit organisation continues.

(d)           
Susan Hample

[58]        
Ms. Susan Hample is a certified dental assistant who works in
the same office as the plaintiff.  They met in 2007 at Dr. Aghdasi’s
dental office.  She described the plaintiff as a kind, positive person who
remembered birthdays with handmade cards.  She recalled the plaintiff brought
baked goods to the clinic about once per month.

[59]        
Prior to the collision the plaintiff, who she described as reliable,
efficient and organised, covered shifts for Ms. Hample.  When they were
both at work, they did not work in the same operatory at the same time.  Ms. Hample’s
duties as a certified dental assistant included intra-oral tasks such as taking
X-rays and putting on rubber dams as well as suctioning.  Procedures can last
from 30 minutes to 3 hours.

[60]        
Ms. Hample knew of the plaintiff’s separation and financial
struggles.  Her husband worked at Hendrix and when a full-time administrative
position became available there, she informed the plaintiff of the job.

[61]        
On Monday evenings, when the plaintiff is the receptionist, they are
both in the office.  Since the collision in 2010, she has observed that the
plaintiff cannot do everything she did before as she has trouble bending and
picking up.  Ms. Hample has assisted the plaintiff with some reaching and
bending.  It is obvious to Ms. Hample that she is in pain and not herself. 

2.              
Employers

(a)           
Dr. Alex Penner

[62]        
Dr. Penner is a dentist with whom the plaintiff has worked since
2002.  He is also a complaint investigator with the College of Dental Surgeons
of British Columbia.  Dr. Penner works at Dr. Aghdasi’s dental clinic
on a monthly basis performing orthodontic services.

[63]        
Dr. Penner was the Deputy Registrar at the College of Dental
Surgeons British Columbia from 2001 to 2009.  He testified regarding certified
and uncertified dental assistants.  A certified dental assistant goes through a
period of training and is registered with the College while a dental assistant
is not registered with the College.  Section 8.05 of the Bylaws of the
College of Dental Surgeons of British Columbia dated April 3, 2009
describes the restricted activities of uncertified dental assistants under the
supervision of a dentist.

[64]        
The College of Dental Surgeons of British Columbia subsequently put out
a pamphlet regarding the services of certified dental assistants and dental
assistants, which is a two-page document entitled “A Guide to CDA services”
dated September 2009.  This document indicates that a dental assistant is a
person other than a certified dental assistant or a dental hygienist who
assists a dentist in the provision of services while under the supervision of a
dentist.

[65]        
Further stipulated in this document are the services that a dental
assistant can provide.  These include “not restricted” services such as
chairside assisting, oral hygiene instruction, sterilization, fluoride varnish
application and developing radiographs.  As well, a dental assistant can expose
dental radiographs if delegated by a dentist and that dental assistant has
completed the dental radiography module.  In addition, a dental assistant who
is authorized and supervised by a dentist can dispense restorative materials
into a prepared cavity, apply topical anesthetic, place and remove the dental
dams and dental dam clamps and support and remove impression materials after the
dentist has placed them.

[66]        
Dr. Penner confirmed that the plaintiff had commenced working with
him as an uncertified dental assistant in 2002 for approximately one day per
month.  When he is doing orthodontic work at Dr. Aghdasi’s office he is
working in 2 to 3 rooms in a fast-paced schedule with more than one person
assisting him.  He also does restorative work while doing orthodontic work if
required.  The dental assistant in addition to assisting by leaning forward
holding the suction and providing air and water when needed, is also prepping
and cleaning the room, sterilizing equipment and preparing the patients.

[67]        
Prior to the accident Dr. Penner thought the plaintiff was a good
dental assistant and effective in dealing with patients who were, for the large
part, children.  He noted her to be happy and cheerful.  Other than staff
Christmas parties, he did not socialize with the plaintiff outside of the
dental clinic.

[68]        
After the collision he has observed that the plaintiff is not as quick
and therefore not as effective.  She appears to be in some discomfort a good
part of the time.  She is not as happy or chipper.  Dr. Penner makes
accommodations wherever possible by allowing her to stand when needed, and by not
asking for tasks which can aggravate her such as picking up boxes or reaching
over her head.  He is less satisfied with her work after the collision.

(b)           
Dr. Faro Aghdasi

[69]        
Dr. Aghdasi is a dentist and the plaintiff’s employer at his dental
clinic in Abbotsford.  He confirmed that the plaintiff is an uncertified dental
assistant.  He believes that she started working there with Dr. Penner one
Friday per month in 2003.  Dr. Aghdasi confirmed that in 2006 the
plaintiff increased her hours at the dental clinic and started working Monday
nights assisting him.  He found her to be proficient and helpful and eager to
learn.

[70]        
When staff are sick or away he prefers that co-workers cover those
shifts.  He did not see the quality of her work change when the plaintiff found
full-time work outside of the dental office in 2008 and 2009.  In the 12 years
that the plaintiff has been an employee, due to the size of the office, there
were no performance reviews done.  The plaintiff’s employee file consists only
of her contact information and date of birth.

[71]        
The plaintiff worked shifts on Monday evening, and Tuesday and Thursday
afternoons.  When another employee left in 2012, the plaintiff took the Tuesday
shift and they changed the Thursday schedule.  The plaintiff also covered
shifts for other employees.  Dr. Aghdasi said that awhile ago the
plaintiff wanted to stop work completely but he asked her to do the reception
job.

[72]        
The plaintiff was paid $13 to $14 per hour when she commenced work at
his office, and is now paid $17.85 per hour.  There are no benefits except
holiday pay.

[73]        
After the collision in 2010, he noted that the plaintiff had difficulty
and some restrictions with some movements.  He accommodates by allowing her to
stand up when she is tired or in pain.  Dr. Aghdasi has been satisfied
with the plaintiff’s performance throughout.

3.              
Treating Physicians and Physiotherapists (non-expert witnesses)

[74]        
Dr. Dueck, Dr. Peters and Ms. Bulawka testified as
non-expert witnesses.  Their notes were provided.  At the commencement of the
trial I ruled that evidence of their observations, examination and treatment
was admissible.  No opinion evidence was allowed to be led in direct
examination because these witnesses were not called as expert witnesses and did
not provide reports pursuant to Rule 11 of the Supreme Court Civil
Rules, B.C. Reg. 168/2009.

(a)           
Dr. Kenneth Dueck

[75]        
Dr. Dueck is the plaintiff’s family physician of over 17 years.  He
is also the physician to the plaintiff’s children.  He works at a private
practice in Abbotsford with several other doctors who share administrative
staff.  Dr. Dueck confirmed that he takes clinical records
contemporaneously with patient visits.  These records are electronic.

[76]        
Dr. Dueck confirmed that in the two years prior to the accident he
did not treat the plaintiff for musculoskeletal issues.  He saw the plaintiff
prior to the accident for issues of anxiety and depression and he prescribed
the plaintiff medication.  It was discontinued due to negative side effects.  No
referral was made to outside counselling for issues of anxiety or depression.

[77]        
The plaintiff has continued to see Dr. Dueck since the accident.  The
first appointment after the accident was on September 14, 2010.  With
reference to his clinical records in direct examination he confirmed that he
performed a physical examination on this visit.  He noted that the plaintiff’s
neck was tender bilaterally and that her neck had restricted range of motion. 
He also observed paraspinal tenderness of the medial scapular borders bilaterally
and lumbar spasm and restricted range of motion of the lumbar spine.  He noted
that the left arm was tender over the forearm.  He prescribed the plaintiff
Naproxen, Flexeril and T3, and told her to follow up with him in two weeks and
to stretch and use heat.  Dr. Dueck saw the plaintiff three times in the
following month.

[78]        
When he saw the plaintiff on November 2, 2010 it was his
recommendation to continue to limit work to four hours per week.  He completed two
EI medical certificates on behalf of the plaintiff on January 12, 2011 and
March 31, 2011.  These documents reflect his recommendation to the
plaintiff to limit her work hours.

[79]        
Although Dr. Dueck referred the plaintiff to Dr. Chu, the
physiatrist, on August 4, 2011, the plaintiff missed this appointment due
to a misunderstanding.  No further appointment has been scheduled.

[80]        
At the request of ICBC, Dr. Dueck completed a CL-19 Medical Report
regarding the plaintiff.  As part of the completion of this report he undertook
a physical examination of the plaintiff which is found under Section B of the
report.  Due to an error at his office he was under the impression that the
March 7, 2011 report was not submitted to ICBC and as such he undertook
the process again with the plaintiff on March 31, 2011.  Dr. Dueck
completed another CL-19 on April 20, 2012 at the request of ICBC.  Dr. Dueck
again performed the physical examination of the plaintiff and his observations
are noted in the report.  The reports document the plaintiff’s ongoing
limitations.

[81]        
Dr. Dueck confirmed that he saw the plaintiff on February 3,
2012 when he did a physical examination.  He concluded that the plaintiff could
increase to 12 hours a week at work.

[82]        
With reference to his December 11, 2013 clinical record, Dr. Dueck
confirmed that it was his intention to refer the plaintiff back to Dr. Chu.

[83]        
Dr. Dueck indicated that he attempted to accurately record the
significant and salient features of what the plaintiff reported in his clinical
records.

(b)           
Dr. Reginald Peters

[84]        
Dr. Peters is a sports medicine doctor with a private practice in
Abbotsford.  The plaintiff saw him four times at the referral of Dr. Dueck.

[85]        
Dr. Peters first saw Ms. McLean on April 1, 2011 at which
time he provided a consultation report to Dr. Dueck.  During that same visit,
he tested the plaintiff’s right hip by internally rotating it.  He observed the
test was positive.  He also performed the anterior hip impingement test on the
plaintiff’s right hip which was also positive.  He palpated the plaintiff’s
right buttock along the sciatic nerve and he observed there to be tenderness. 
He recommended that the plaintiff be seen by Dr. Gilbart and that she have
an MRI arthrogram.  Dr. Peters confirmed that on April 1, 2011 he
faxed the referral to Dr. Gilbart’s office and that he requisitioned an
MRI arthrogram of the plaintiff’s right hip.  Dr. Peters confirmed that he
received a response from Dr. Gilbart’s office and that the plaintiff had
been placed on a waitlist.

[86]        
The plaintiff was seen again by Dr. Peters on November 27,
2012 at the referral of Dr. Dueck.  He confirmed that he noted improvement
of the plaintiff’s right hip symptoms.  He did physical testing of her neck,
intrascapular area, latissimus dorsi and right SI joint.  He noted there was
pain and tenderness in the right paracervical regions in the left and right
trapezius.  There was also pain and tenderness in the intrascapular region. 
There was also tenderness in the paralumbar region.  With loading of the
latissimus dorsi pain was exacerbated.  He saw the plaintiff again on January 17,
2013.  He recommended walking and stretching.  He last saw the plaintiff on May 16,
2013 and recommended conservative treatment.

[87]        
Dr. Peters confirmed that as far as he was aware the plaintiff was
still on Dr. Gilbart’s waitlist through his office.

(c)           
Jennifer Bulawka

[88]        
Ms. Bulawka is a physiotherapist.  She started treating the
plaintiff on October 15, 2010 at the Apollo Physiotherapy clinic in
Abbotsford where the plaintiff was treated ten times.  Ms. Bulawka then
moved physiotherapy clinics and started treating the plaintiff at Abbotsford
Sports and Orthopaedic Physiotherapy on November 17, 2010.  The first
clinic record taken on November 17, 2010 indicates that the plaintiff was
seen at Apollo for hip, lumbar spine, sacroiliac joint and cervical spine
issues.

[89]        
The treatment provided by Ms. Bulawka initially included ultrasound
to take down inflammation in the plaintiff’s cervical spine.  She also provided
manual therapy to the cervical and thoracic spine to reduce muscle spasm and increase
joint mobility.  She reviewed exercises and a stretching program for the
plaintiff’s lumbar spine and hip.  Ms. Bulawka stated that she used heat
and TENS to decrease pain and inflammation.

[90]        
On the visit of November 18, 2010, Ms. Bulawka performed a
joint mobilization of the right hip and sacroiliac joint.  At the next
appointment of November 22, 2010, she noted that the plaintiff’s hip was
catching at 90°.  Ms. Bulawka was also providing treatment for the
plaintiff’s headaches directed at the upper cervical spine.  On December 1,
2010 she recommended that the plaintiff try hip traction at home with a weight
on the ankle leaning off the stairs.

[91]        
On January 28, 2011, Ms. Bulawka advised the plaintiff of a
possible labral injury of the right hip.  On February 23, 2011 she did
physical testing of the right hip in particular flexion adduction and internal
rotation.

[92]        
Ms. Bulawka confirmed that she wrote a letter dated March 7,
2011 to the plaintiff’s family physician regarding the plaintiff’s condition.  The
purpose of the letter was to update the family physician on the plaintiff’s
condition and the possibility of pursuing imaging.  She says that she could not
recommend the plaintiff return to work on a regular part-time or full-time
basis as her job as a dental assistant required both sustained sitting and
standing postures which were aggravating her injuries.

[93]        
Ms. Bulawka continued to treat the plaintiff into the spring of
2011.  On November 23, 2011 she saw the plaintiff for treatment and was
aware that the plaintiff had initiated a program at Innovative Fitness.  When
she saw the plaintiff again on December 7, 2011 she observed that the
plaintiff’s condition had worsened.  Due to Ms. Bulawka’s own absences
from Abbotsford Sport and Orthopedic Physiotherapy clinic she saw the plaintiff
sporadically until June 27, 2012, when she last saw the plaintiff for
treatment.

4.              
Expert Witnesses

(a)           
Dr. Robert W. McGraw, Orthopaedic Surgeon

[94]        
Dr. McGraw saw the plaintiff at the request of her counsel for the
purposes of a medical legal assessment on May 22, 2012.  He has extensive
experience with hip replacement surgery.

[95]        
In his report he noted that the plaintiff did not exhibit any
non-organic activity or pain magnification behavior.  He reviewed the clinical
records provided to him, took a history from the plaintiff and undertook a
physical assessment.

[96]        
In the assessment, Ms. McLean described present pain and symptoms
as follows: her low back is the worst pain.  It radiates down to her right knee
and is described as sciatica.  Upper back pain is intermittent mild pain
between her shoulder blades, and she is beginning to have days free of neck
pain.  Headaches occur six out of seven days.  Her right hip results in an achy
sensation in the right groin.  It is also noted that although Dr. McGraw
includes the self-report of Ms. McLean that she has a limp, he did not
observe a limp and recorded an observation of a normal gait.

[97]        
The diagnoses and discussion of Dr. McGraw are set out in his
report as follows:

Orthopaedic Diagnoses

As a result of the road traffic accident of September 11,
2010, Ms. McLean sustained the following injuries:

1.         Cervical spine –
musculoligamentous soft tissue injury not associated with neurological
impairment or fracture.

2.         Thoracolumbar spine –
musculoligamentous soft tissue injury not associated with neurological
impairment or fracture.

Discussion

Neck

In the road traffic accident of September 11, 2010, Ms. McLean
sustained uncomplicated soft tissue injuries to the cervical spine.  The
symptoms are ongoing.  There are no neurological features. The long-term
prognosis is good.  The writer does not anticipate there will be any
long-term complications such as the development of post-injury arthritis. 
Further, the writer does not anticipate there will be any need for surgery for
any soft tissue injuries that may have occurred in the neck in the road traffic
accident of September 11, 2010.

Thoracolumbar Spine

In the road traffic accident of September 11, 2010, Ms. McLean
sustained uncomplicated soft tissue injuries in the lumbar spine.  The
symptoms are ongoing and have not resolved with a physiotherapy program which
consisted of manipulation and electrical stimulation.  Further, she did not
respond beneficially to a supervised active exercise program conducted by a
kinesiologist. The prognosis for complete recovery of the low back pain
remains guarded.  In the writer’s opinion, there are no neurological
findings.  There is unexplained pain in the right leg, particularly in the
right buttock and posterior thigh to the level of the right knee.

Undiagnosed Complaint of Pain in Right Groin

Ms. McLean is uncertain as to when the pain in the right
groin began.  She thinks it was soon after the accident.  On physical
examination, there is pain on flexion, adduction and internal rotation.  This
maneuver is suggestive of a torn acetabular labrum.  A plain MRI study did not
show a labral tear.  The symptoms persist.

Recommendations

Right Hip

In order to clarify the complaints in the right hip, the
writer would recommend an image-guided injection of local anesthetic into the
right hip joint, preferably conducted by a radiologist in a radiology setting. 
The purpose of this simple test would be to rule in or out the presence of soft
tissue pathology within the hip joint.  If the symptoms were temporarily
eliminated in the right hip joint by this test, the writer would recommend
proceeding to an MRI arthrogram.  This consists of an MRI study of the right
hip joint preceded by an intra-articular injection of gadolinium.

[Emphasis added.]

[98]        
The MRI arthrogram was completed in May 2013 by Dr. Ko.

(b)           
Dr. William Craig, Physiatrist

[99]        
Dr. Craig is a physiatrist who prepared a medical legal report
dated the February 24, 2014 at the request of the plaintiff’s counsel.  Based
on his review of the clinical records, the history taken of the plaintiff and
his physical examination he opined that the plaintiff sustained a moderate soft
tissue injury to her neck and back as a result of the accident.  He also stated
that the right labral tear was likely due to the collision.

[100]    
The following portions of his report set out factors regarding her
delayed recovery, occupational difficulties and the prognosis:

4. your
explanation, if any, for the persistence of Ms. McLean’s ongoing MVC
induced complaints;

Her treatment has been appropriate to date.  She had a couple
of factors that could have impaired her recovery from injuries from this
accident.  She had a history of depression and anxiety that pre-dated this
accident.  Also according to the May 7, 2011 CL-19 from Dr. Dueck, she had
some prior neck tightness and discomfort that pre-dated this accident.  She
also has a job that involves working for prolonged periods in an awkward
position, which would likely aggravate her symptoms.

5. occupational
(e.g. dental assistant, construction cleaning) and recreational difficulties
currently experienced by Ms. McLean that can be properly associate with
her MVC-related residuals;

She has been unable to return to the construction cleaning
job.  She has difficulty working in awkward positions, which is typical for
individuals with myofascial pain.

8. your
prognosis for full functional and pain free recovery; 

Ms. McLean is over three years out from the
September 11, 2010 accident and continues to be symptomatic.  I feel that
prognosis is more favourable for the right hip symptoms, given there are some
treatment options available.  If there is significant improvement in her
symptoms from the local anesthetic injection, then a labral repair is an
option, but I would defer further comment on prognosis to an orthopedic surgeon
who does hip arthroscopies.

¶49      Prognosis
is more guarded for resolution of her neck and back symptoms, particularly
given that she has had some concurrent mood issues since the September 11,
2010 accident.

[101]     Dr. Craig
recommended that the plaintiff participate in regular recreation such as
cycling as well as a gym-based program with restrictions on overhead lifting
and no heavier weights involving the lower limbs.  His recommendations
addressing the plaintiff’s neck injuries include intramuscular stimulation,
active release and trigger point injections.  He also recommended various
medications.  His recommendations for the neck injury were also directed at
alleviating the headaches.  He noted if the neck recommendations did not
relieve the plaintiff’s headaches specific migraine medication was an option.  For
the back Dr. Craig recommended a core strengthening program.

[102]     With
regards to employment, Dr. Craig said that the plaintiff should be capable
of part-time to full-time sedentary to light employment provided that this does
not involve working in awkward prolonged positions.  He agreed with Russell
McNeil that the plaintiff would not be capable of full-time work as a dental
assistant or returning to heavier work such as construction cleaning.

[103]     It is
noted that there is no evidence from the plaintiff of construction cleaning
since working for her husband’s company to 2006.  There is similarly no
evidence from her or any witness of the plaintiff’s involvement in jogging as
referred to by Dr. Craig.

(c)           
Dr. Chung Ko, Radiologist

[104]     Dr. Ko
is a staff radiologist at the Abbotsford Regional Hospital.  He performed an
MRI arthrogram of the plaintiff’s right hip on May 3, 2013.  Dr. Ko
prepared a one-page medical legal report dated September 15, 2013 based on
that procedure.  The report reads:

A small nondisplaced acetabular
labral tear is suspected in the anterosuperior corner of the hip joint best
seen on Image 5, Series 3 and Image 3, Series 5 and Images 12 and 13, Series 7
where there is undermining of the labrum by the injected contrast.

[105]     Dr. Ko
on direct examination confirmed that he in fact did see a tear.  A portion of
the transcript reads as follows:

Q         Thank you, Doctor.  Doctor, did you visualize
a non-displaced acetabular labral tear in the anterosuperior corner of the hip
joint of the Plaintiff?

A          The image appearance is consistent with a
tear.

Q         So, Doctor, did you visualize a tear?

A          I see the tear, yes.

Q         Thank you.

THE COURT:  I’m sorry?  I didn’t — sorry, Dr. Ko,
I can’t hear you.

A          I saw the tear.

MS. VENEGAS:  He’s saying, "I saw the tear”.

THE  COURT:  All right.

[106]     Dr. Ko
stated that he used the word “suspected” in his report because an MRI is not 100%
accurate.  Confirmation of a tear is only achieved through surgery or
arthroscopy.  There is a high probability of a tear.

[107]     Dr. Ko
gave no opinion regarding causation of the suspected tear.

(d)           
Dr. Thomas Greidanus, Orthopaedic Surgeon

[108]    
At the request of counsel for
the defendant, Dr. Greidanus, an orthopaedic surgeon, prepared a report
dated May 6, 2014 after an assessment of the plaintiff that day.

[109]    
In both Dr. Greidanus’s
medical legal report and on cross-examination, Dr. Greidanus confirmed
that the plaintiff cooperated with the assessment.  He did not know that she was
having a severe sciatica episode.

[110]    
As the date of the
examination was recent and proximate to the trial, I set out the plaintiff’s
complaints as reported to Dr. Greidanus:

PRESENT COMPLAINTS

1.         Headaches
from the occipital region to the top of her head and this may occur three or
four days a week.  She takes Advil for this. 

2.         Neck
discomfort and soreness more on the right side of her neck.  “It feels like
a concrete yoke on my neck”.  This is aggravated by working, by looking
down or up. 

3.         Pain
across the back of her shoulders and trapezius muscle region.  This is a daily
occurrence.  The symptom is worse with stress.

4.         Lower
back pain, more on the left side.  “Everything aggravates” this pain. 
She started kinesiology exercises again but she states that this aggravates the
lower back and “sciatic nerve pain”. 

5.         “Sciatic
nerve pain”.  She refers to the pain in her left buttock region radiating
down posterior left thigh and now just below the knee.  This is aggravated by
sitting too long.  She has noticed this for the past several months. 

6.         Right
anterior hip “achy”.  This is noticed if she sits too long or if she
walks for an hour.  She does a lot of sitting and then at the end of the day
the “achy pain” will be more noticeable, and she states she has noticed this
discomfort in anterior aspect of right hip since the accident. 

[111]    
The plaintiff’s self-report
regarding her psychological history was recorded as follows:

PSYCHOLOGICAL HISTORY

She states she has been anxious since the accident.  When asked if she
was anxious prior to the accident, she stated “Maybe once”.  She
indicates for mood she feels “more than sad but not depressed”. 

[112]    
The diagnoses are:

Diagnoses:

1.         Neck sprain — resolved.

2.         Low back sprain — resolved.

3.         Alleged
sciatica on the left side.  No objective positive findings on this examination.

4.         Suspect
a degree of anxiety.

….

Your diagnosis and prognosis:  The Diagnoses are listed above.

Her prognosis is very good, in my opinion.  In my opinion, she will not
require home care assistance, and she will be able to participate in gainful
employment to support herself and her children. 

[113]    
Dr. Greidanus confirmed
on cross-examination that the only measurements noted in his report that were
taken using a tool was flexion at T12 and L5/SI with an inclinometer.  Dr. Greidanus
confirmed on cross-examination that these ranges constituted a moderate lumbar
restriction.  This result is omitted from his report at page 5 at the last
paragraph.

[114]    
Dr. Greidanus also
agreed that there was a degree of error with visual estimates of range of
motion.

[115]    
Dr. Greidanus views the
plaintiff’s prognosis as “very good”.  He opined that 6-12 months off work
would have been reasonable, considering her injury and job duties.  He
anticipates no permanent disability.  His opinion is that no further treatment
is required and that physiotherapy, chiropractor treatments, massage, and
acupuncture are not medically essential.

[116]    
With regard to the labral
tear, the report sets out the history from the medical records:

Appendix—Medical Records:

I have reviewed the
Medical Records.

Of note, physiotherapist,
Jennifer Bulawka expressed concern about a labral tear right hip on March 7,
2011.

On April 7, 2011, Family
Physician Dr. R Peters, with an interest in Sports Medicine, questioned a
possible labral tear right hip.  He noted restricted abduction of right hip to
35 degrees.

On November 27, 2012, Dr
Peters found that right hip symptoms had improved.  The client was reluctant to
have a right hip injection of Marcaine [local anesthetic] and Cortisone.

MRI Arthrogram right hip
May 3, 2012 reported by Dr. Chung, “A small non displaced labral tear in
anterosuperior corner of right hip joint.

On the Medical/Legal
report by Orthopaedic Surgeon Dr. Robert McGraw, he noted normal range of
motion of both hips [abduction was 50 degrees on both sides].  On flexion,
adduction and internal rotation of right hip the client noted some pain, but
there was no clicking of the hip.  Dr. McGraw recommended injection of
right hip with a local anesthetic.  If there was relief of pain then this would
suggest symptoms might arise from soft tissue.  I can find no evidence in the Medical
Records that such an injection took place.

Dr. W. Craig,
Physiatry Specialist, on February 24, 2014 suggested a trial of right hip
injection with a local anesthetic.

Family Physician, Dr
Peter Dueck, reported his diagnoses of Anxiety/Depression prior to the
Accident, for example, March 25, 2010.

On my examination on May
6, 2014, there was full range of movement of right hip without pain.

Comment: I do not believe that this client has a significant labral tear
in the right hip.  Many asymptomatic individuals may have a labral tear of the
hip.  As with a number of radiologic studies, [including labral tear of the hip
or shoulder, meniscus tear in the knee, rotator cuff tear the shoulder, lumbar
disc protrusion], just because a radiologist reports a tear, and especially
small tear, this does not mean the tear is clinically significant or causing
any symptoms.

[117]    
In cross-examination, Dr. Greidanus
confirmed that it was his understanding that the accident was not significant
and could not have caused the injury to the plaintiff’s right hip.  If it did
cause a tear, he would have expected it to be posterior and not anterior as she
reports. 

[118]    
There is no record of Dr. Greidanus’s
examination of the plaintiff’s right hip in terms of adduction or internal
rotation.  He did not do combined movements of the plaintiff’s right hip with
tests such as FABER, which involves combined flexion, abduction and external
rotation.  Dr. Greidanus also confirmed that he did not do the internal
rotation quadrant test which involves taking the hip into a flexed position and
then over pressure looks for impingement signs in the groin area.

[119]    
Dr. Greidanus stated that
it is not known if there is a tear in the plaintiff’s right hip.  The gold
standard for diagnosis is arthroscopic surgery.  There are many folds in the
hip where dye can get in and be mistaken for a tear.  In cadaver studies 93‑95%
of hips have a tear.  It is very common and there can be no symptoms.  The
onset of pain from a labral tear can develop insidiously but he would not
expect it from a small suspected tear.

[120]     In cross-examination, his opinion regarding the
labral tear was that it was questionable as there is not enough evidence to say
that there is a tear.  There were no symptoms of a labral tear and the
plaintiff was not sure when it started.  In his opinion, is not relevant to the
plaintiff’s injuries and it is a red herring. 

(e)           
Dan Bos, Physiotherapist

[121]     Mr. Dan
Bos is a physiotherapist who treated and continues to treat the plaintiff.  In
his expert report dated May 19, 2014, he opines that the plaintiff
suffered from a sprain of the L5 – S1 facet joint, the right ilio lumbar
ligament complex, the right sacroiliac joint, the T4 – 6 motion segments and
the C0 – C1/C1 – C2 motion segments.  There was a strain to the right lower
lumbar spine muscles, mid thoracic paraspinals, upper trapezius bilaterally and
the sub occipital muscles.  There was also a compression injury to the right
hip resulting in anterior – superior acetabular labrum injury.  It is his
opinion that these injuries resulted from the accident.

[122]     Mr. Bos
notes that any sitting positions will place chronic stress on the anterior
aspect of the labrum.  He opines that over time the labral tear will worsen.  The
best way to prevent this from happening is to limit sitting activities and
maintain range of motion and strength within the hip joint.  The most recent
advice to the plaintiff was to continue working 10 to 12 hours a week until
further treatment such as prolotherapy is undertaken.  He recommends working
with the registered kinesiologist, prolotherapy and ongoing physiotherapy once
every two to three weeks to maintain spinal alignment, pelvis mobility, hip
mobility and soft tissue flexibility around the injured areas.

(f)            
Russell McNeil, Occupational Therapist

[123]     Mr. Russell
McNeil undertook a functional capacity evaluation of the plaintiff on November 7,
2013.  This evaluation included an assessment of effort.  Mr. McNeil
concluded that the plaintiff gave high levels of effort and testing.  He also
found her self-reports of pain to be consistent with objective observations.

[124]     Mr. McNeil’s
opinion regarding the plaintiff’s overall functional capacity is that the
plaintiff demonstrated the capacity to perform activity that requires light
level strength.  The plaintiff had restrictions in her capacity for activity
requiring static horizontal reaching as well as restrictions in her capacity to
perform below waist work requiring bending and stooping.  There were
restrictions in the plaintiff’s tolerance to perform static head/neck
positioning and flexion (looking down) and extension (looking up).  There were
measured restrictions in her upper and lower extremity strength as well as
restrictions in her capacity to perform two-handed carrying and two-handed
lifting.  There were restrictions in her tolerance for sitting in a work intensive
posture as well as restrictions performing prolonged static standing.  Overall
there were restrictions in her endurance which affected her capacity over the
course of the assessment.

[125]     It is his
opinion that the plaintiff is incapable of performing the work of a dental
assistant on a full-time basis.  However, he did not differentiate between
certified and uncertified dental assistants.  With regard to her ability to do
the work on a part-time basis he opines that the plaintiff has restrictions.  He
states that the plaintiff has restrictions in her capacity to perform the
strength and stamina requirements of the work and she would require
accommodations.  Even when working on a part-time basis she will require
accommodations including frequent changes in position.  Mr. McNeil
identifies this level of work as “light”.

[126]     With
regard to work as an administrative assistant, Mr. McNeil opines that
although the plaintiff has the capacity to do the work on a part-time and
full-time basis, she has restrictions.  Based on the assessment results, the
plaintiff has demonstrated restrictions in her capacity to perform work as an
administrative assistant on a full-time basis; however with accommodation she
is capable of working on a full-time basis.  The plaintiff has demonstrated
restrictions in her capacity for prolonged sitting and work intensive posture
and would require accommodations including changes in position.  Mr. McNeil
identifies this level of work as “sedentary”.

[127]     The
plaintiff was also assessed in her capacity to do work as a construction
cleaner.  This level of work is categorized as “light to medium”.  He opined
that she did not have the capacity to do this work on a part-time basis.  He noted
the plaintiff’s restrictions for prolonged static and repetitive work intensive
posture such as working above shoulder level, bending, crouching and kneeling.

[128]     With
regard to vocational activity, Mr. McNeil opines that the plaintiff has
restrictions in her capacity to perform seasonal cleaning and daily housework.

[129]     In his cost
of future care report dated May 8, 2014, Mr. McNeil states that the
plaintiff requires assistance with homemaking chores, specifically four hours
of homemaking assistance per week for heavier chores.  He also opines that the
plaintiff requires assistance with seasonal cleaning in the amount of 16 hours
per year.  For the plaintiff to perform sedentary office work, she would
benefit from ergonomic devices.  Mr. McNeil agrees with the
recommendations made by Dr. Craig in his report of February 24, 2014 regarding
rehabilitation and specifically exercise instruction by a kinesiologist as well
as access to a fitness pass.

(g)           
Robert Carson, Economist

[130]     Mr. Robert
Carson is a consulting economist with an interest in labour.  He has extensive
experience using statistics.  He prepared a report dated May 16, 2014 with
the calculation of the present values of the future care recommendations made
by Russell McNeil in his report dated May 8, 2014 and those of Dan Bos in
his report dated May 19, 2014.

[131]     In
addition, Mr. Carson provided a report dated May 30, 2014 with the
calculation of past and future income loss based on full-time work in three
jobs.  In doing so he used statistical information gathered by Statistics
Canada and the Hospital Employee Union contract.

5.              
Other Witnesses

(a)           
Tom McAleese

[132]     Tom
McAleese is a medical exercise specialist who owns CORE Fitness and
Rehabilitation in Abbotsford.  He employs kinesiologists at this facility.  He
saw the plaintiff on April 16, 2014 and performed a postural assessment
and physical testing for the purposes of developing an exercise program for the
plaintiff.

[133]     The observations
of various kinesiologists related to the plaintiff’s neck, upper back, low back
and hips are found in his report.  It was his evidence that the plaintiff
completed a 5-week program and was in the process of completing a second
program.

(b)           
Zoltan Nagy

[134]     Mr. Zoltan
Nagy is an employee of the Specialist Referral Clinic.  He testified regarding
the absence of a report from Dr. Gilbart.  He confirmed that the plaintiff
was seen by Dr. Gilbart for the purposes of a Medical Legal Assessment on
June 27, 2011; however there was no report written following this.  Mr. Nagy
could not provide any explanation as to why a report was not written.

[135]     Mr. Nagy
stated that there were no charges related to the plaintiff’s assessment on June 27,
2011.  He confirmed that the file of the Specialist Referral Clinic regarding
the plaintiff contains letters from counsel for the plaintiff dated April 15,
2011; June 9, 2011; June 16, 2011; August 18, 2011; September 26,
2011; October 19, 2011; December 13, 2011 and August 7, 2013.

[136]     I draw no
adverse inference from the failure to call or submit a report from Dr. Gilbart.

IV.           
DISCUSSION

A.             
Overview

[137]     In this
case the ultimate issue for the court is the quantum of damages under the
applicable heads that the plaintiff is entitled to as a result of the collision
on September 11, 2010.  I will deal with the extensive submissions on the
issues of the reports of Mr. Bos and Mr. McNeil, and the use of
clinical notes, particularly those of Dr. Dueck, in order that the quantum
of damages can be assessed.

[138]     The law is
not in issue between the parties.  It is set out to summarise the principles
that counsel agree are to be applied to the findings of fact.

B.             
Credibility and Reliability of the Plaintiff’s Evidence

[139]     Prior to
turning to the evidence as a whole, it is necessary to deal with the
credibility and reliability of the evidence of the plaintiff.

[140]    
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at
para. 186:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)).  The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont.H.C.); Faryna v. Chorny, [1952] 2 D.L.R. [354]
(B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)).  Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[141]     If the
plaintiff’s account of his or her change in physical, mental, and/or emotional
state as a result of the accident is not convincing, then the hypothesis upon
which any expert opinions rest will be undermined: Samuel v. Chrysler
Credit Canada Ltd., 2007 BCCA 431 at paras. 15 and 49.

[142]     One of the
issues raised by the defendant is the lack of temporal specificity and
sufficiency of the plaintiff’s evidence which it is submitted is not set out
with a time frame or sequence thus rendering it less reliable overall.  The
foundation which must be provided by the evidence of the plaintiff herself is
deficient.  I agree.  This lack will be further referred to below.

[143]     It is also
noted that the plaintiff’s memory of her circumstances and the progression of
her injuries and recovery is incomplete.  Her evidence contained many answers
which indicated that she did not know or could not remember.  Although at times
the responses seemed somewhat evasive, I am satisfied that the plaintiff sincerely
did not remember many matters which are standard facts in similar cases.  This
occurred in the area of her work history with Dr. Penner and Dr. Aghdasi,
the dates, months, seasons or years of medical treatment, and the history of
improvements and setbacks.  One response to a series of questions in rather
gentle cross-examination was:  “I honestly have just had so many aches and
pains.”  She also said that her brain was absolutely full when unable to
respond to another question.

[144]     There is
an issue of inaccurate reporting to her family doctor.  Although Ms. McLean
repeatedly testified that the Hendrix job was not stressful, and that it was
her working life in general which was stressful, the clinical notes of Dr. Dueck
indicate that she reported that job being stressful.  She also told Dr. Dueck,
long after the child support issues were substantially resolved and she was
receiving regular spousal and child support, that her former husband was not
paying child support.  In cross-examination she denied making that report which
is clearly set out in the doctor’s clinical notes.

[145]     In the
assessment with Mr. McNeil, Ms. McLean advised him that one of her
jobs was as a construction cleaner.  Dr. Craig refers to a return to that
job in his report.  There is no evidence that Ms. McLean worked as a
construction cleaner or in any area of construction after her separation in
2006.

[146]     Dr. Craig
also notes her self-report regarding a return to the activity of jogging. 
There is no evidence of the plaintiff’s jogging in the testimony of her or any
of the witnesses.

[147]     In the
report of Dr. McGraw, he notes that the plaintiff has job prospects at a
hospital.  There is no evidence of anything further than an intention to apply
for a job at a hospital in the future.  His report also notes that the children
are “now” assisting with house cleaning whereas it was Julia’s evidence that
she and her siblings had assisted with the cleaning while growing up and prior
to the collision.  She reported that the collision occurred when she was rear-ended
by a Honda travelling at high speed.  The evidence is that the defendant braked
before the collision but could not stop in time.

[148]     Dr. Greidanus
records in his report that the plaintiff told him when asked if she was anxious
prior to the accident, she stated “maybe once”.  This report is inconsistent
with the records of Dr. Dueck who records a number of discussions
regarding anxiety, stress and depression.

[149]     There is
therefore a pattern of exaggerations, minimisations, gaps, and internal and
external inconsistencies in the evidence of the plaintiff and her reports to
physicians and treaters.  The absence of memory renders some of her evidence
less reliable.  While for the most part I accept that her testimony was
well-intentioned, it is not entirely credible.

[150]     I am
mindful of the stresses of testifying in court regarding an event which caused
pain and stress to a witness.  I am also mindful of the law with regard to
reliance upon statements in examinations for discovery and clinical records as
set out in Edmondson v. Payer, 2011 BCSC 118 at paras. 32-33:

[32]      That observation applies with even greater force to
statements in clinical records, which are usually not, and are not intended to
be, a verbatim record of everything that was said.  They are usually a brief
summary or paraphrase, reflecting the information that the doctor considered
most pertinent to the medical advice or treatment being sought on that day. 
There is no record of the questions that elicited the recorded statements.

[33]      When statements of a party are relied on for the
truth of their content, the authors of Sopinka, Lederman & Bryant, The
Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009)
point out at paragraph 6.398 that one rationale for the admissibility of such
statements is that “it is always open to the party to take the witness box and
testify either that he or she never made that admission or to qualify it in
some other way.”  The authors also emphasize at paragraph 6.413, that the whole
of a statement must be put into evidence:

Thus, if an admission contains statements both adverse and
favourable to a party and if an opponent tenders it, he or she may thereby be
adducing evidence both helpful and damaging to his or her cause.

[151]     However, after
considering cross-examination of the plaintiff on her statements, I conclude
that I must view the evidence of the plaintiff and her reports to physicians
and caregivers with caution.  While I generally accept her evidence that she
was injured in the motor vehicle accident and that she suffered pain and
detriment to her working ability and enjoyment of life, the degree of pain, the
history of improvement and the effects of the injuries must be more carefully
considered in the context of the evidence as a whole.

C.             
Non-Pecuniary Damages

1.              
Position of the Parties

[152]     The
parties have differing views of an appropriate quantum of general damages.  The
plaintiff seeks $80,000 to $100,000.  The defendant submits that general
damages should be assessed at between $15,000 and $45,000.

2.              
Law

[153]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities.  The compensation awarded should be
fair to all parties, and fairness is measured against awards made in comparable
cases.  Such cases, though helpful, serve only as a rough guide.  Each case
depends on its own unique facts: Trites v. Penner, 2010 BCSC 882
at paras. 188-189.

[154]     In Stapley
v. Hejslet, 2006 BCCA 34, leave to appeal ref’d [2006] SCCA No. 100,
the Court of Appeal outlined the factors to be considered when assessing non-pecuniary
damages at para. 46:

The inexhaustive list of
common factors cited in Boyd that influence an award of non-pecuniary
damages includes:

(a)  age of the
plaintiff;

(b)  nature of
the injury;

(c)  severity
and duration of pain;

(d)  disability;

(e)  emotional
suffering; and

(f)   loss or
impairment of life;

I would add the following
factors, although they may arguably be subsumed in the above list: 

(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: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

3.              
Consideration of the Factors

[155]     The
plaintiff was rear-ended in a motor vehicle accident on September 11,
2010.  Her minivan was damaged but she was able to drive away from the scene.

[156]     Ms. McLean,
who was born in 1969, was 41 years old at the date of the accident and 45 at
the time of trial.  Since the separation from her husband in 2006 she has been
a single parent of four children who were born in 1989, 1993, 1996 and 2002. 
They were all resident with her after the separation.  In 2011 the eldest
child, Julia, moved out, and the second child now lives in Ms. McLean’s
basement suite with her partner and their one-year old son, Greyson.  The two
youngest children, now ages 18 and 12, continue to live at home.

[157]     The
highest level of education Ms. McLean achieved was high school education. 
Her work history has included a number of jobs as a secretarial or
administrative assistant, and as an uncertified dental assistant.  With the
exception of a full-time position as an administrative assistant for 1½ years from
2008 to 2010, all of her jobs have been part-time or of short duration.

[158]     Ms. McLean’s
present work is as an uncertified dental assistant and receptionist part-time
for a dental office in Abbotsford.  Until April 2014, she continued to
work Monday evenings, Tuesdays and some Fridays as was her schedule for the
same employer prior to the accident.  She no longer works on Tuesdays.  She is
paid $17.45 per hour.  The dentists think highly of her work and they and co-workers
have made accommodations to assist her since the accident.

[159]     Although
her evidence was that her intention is to find full-time employment in order to
better support her family, there is no evidence of job applications before or
since the accident.

[160]     Prior to
the accident, Ms. McLean experienced headaches and neck discomfort from
time to time.  She was not being treated for musculoligamentous injuries.  Nine
months prior to the accident her long-time family doctor, Dr. Dueck, noted
that all of her activities of daily living, social and physical especially, had
been affected by her anxiety and depression.  Around that time the doctor gave
her a variety of questionnaires with respect to her mood and anxiety.

[161]     The
pre-existing mood and anxiety problems are relevant to the determination of the
factors regarding emotional suffering, loss or impairment of life, loss of
lifestyle, and impairment of family, marital and social relationships.

[162]     The use of
this information by the court is dependent on the law with regard to the use of
clinical records.  The defendant also submits that an adverse inference should
be drawn because the doctor with the best evidence regarding the plaintiff’s
history, course of injuries and recovery could not provide evidence of his
opinions since he was not called as an expert witness.

[163]     With
regard to the use of clinical records, Edmondson discusses the limited
purposes for which clinical records are admissible.  At paras. 23 to 29
the court states:

[23]      …  It is therefore important to review the limited
purposes for which clinical records are admissible.  It is easy to lose sight
of those limitations in cases of this kind, where the time spent parsing a
single note made by a doctor often far exceeds the length of the medical
appointment that the note records.

[24]      Clinical records may be admissible as business
records pursuant to s. 42 (2) of the Evidence Act, R.S.B.C. 1996,
c. 124 [Evidence Act], which reads:

(2)  In proceedings in which direct oral
evidence of a fact would be admissible, a statement of a fact in a document is
admissible as evidence of the fact if

(a)  the document was made or kept in the
usual and ordinary course of business, and

(b)  it was in the usual and ordinary
course of the business to record in that document a statement of the fact at
the time it occurred or within a reasonable time after that.

[25]      In Olynyk v. Yeo (1988), 55 D.L.R. (4th)
294, 33 B.C.L.R. (2d) 247 [Olynyk cited to D.L.R.], the Court of Appeal
said at 300:

The words "to record in that document a statement of
the fact" mean, in our opinion, that the fact occurred within the
observation of someone who has a duty himself to record it or to communicate it
to someone else to record as part of the usual and ordinary course of business.

[26]      Section 42 of the Evidence Act therefore
makes records admissible to prove such things as a doctor’s direct observations
of the patient’s medical condition, the results of tests performed or ordered
by the doctor, and the medical advice given.  It eliminates the need for
doctors to give oral evidence of those facts, of which they are unlikely to
have independent recollection.  But as the court noted in Olynyk, this
“does not make everything in a document admissible just because the document is
one which for some purposes falls within the section.”: at 301.

[27]      The principles governing the admissibility and use
of clinical records (and business records generally) were summarized by
Burnyeat J. in McTavish v. MacGillivray (1997), 38 B.C.L.R. (3d) 306 at
311-12 (S.C.):

1.   The notes taken must be made
contemporaneously.

2.   The notes must be made by someone
having a personal knowledge of the matters being recorded.

3.   The notes must be made by someone
who has a duty himself or herself to record the notes or to communicate the
notes to someone else to record as part of the usual and ordinary course of
their business.

4.   The matters which are being
recorded must be of the kind that would ordinarily be recorded in the usual and
ordinary course of that business.

5.   A statement in the records of the
fact that a certain diagnosis was made will be admissible.

6.   Recorded observations, diagnosis
and opinions will be admissible providing they are recorded in accordance with
points 1 through 4.

7.   The fact that the referring doctor
relied upon another doctor’s opinion to assist in coming to his or her own
diagnosis and opinion is only evidence of that fact so that the other opinion
does not become evidence unless it is otherwise admissible.  Accordingly, it is
only evidence of the fact that the referring doctor wished or required that
opinion to be received before forming his or her own opinion.

8.   Statements made by parties or by
experts which are recorded in the usual and ordinary course of business but
which lie outside the exception to the hearsay rule are hearsay and will not be
admitted into evidence unless they can be brought within Section 14 of the
Evidence Act which allows for the admissibility of such statements if it
can be shown that they are proof of a prior inconsistent statement.

[28]      The last point refers to the procedure for
cross-examining a witness on a prior inconsistent statement.  Section 14
of the Evidence Act reads:

(1)  Subject to subsection (2), if a
witness, in cross examination as to a former statement made by the witness
relative to the subject matter of the proceedings and inconsistent with the
present testimony of the witness, does not distinctly admit to making the
statement, proof may be given that the witness did in fact make that statement.

(2)  Before
giving the proof referred to in subsection (1),

(a)  the circumstances of the supposed
statement, sufficient to designate the particular occasion, must be mentioned
to the witness, and

(b)  the witness must be asked whether or
not the witness made the statement.

[29]      Portions of clinical
records that report statements made by the plaintiff, including the plaintiff’s
description of symptoms, are therefore evidence of the fact the plaintiff made
the recorded statements on those occasions.  Where the recorded statements are
inconsistent with the plaintiff’s evidence at trial, they may be used in
cross-examination to impeach the plaintiff’s credibility.

[164]     In
assessing the evidence of a doctor’s clinical records, subject to
cross-examination, the records are proof that the doctor made the note and
proof that the patient made a statement recorded by the doctor although the context
may not be known.  However, the records are not proof that the statement made
by the patient is true or accurate.

[165]    
With regard to drawing an adverse inference, the law is thoroughly set
out in Buksh v. Miles, 2008 BCCA 318 at paras. 30 to 35:

[30]      The notion of adverse inference is related to the
best evidence rule.  The observation in Wigmore’s Evidence in Trials at
Common Law, Chadbourne Rev. (Toronto & Boston: Little Brown &
Company: 1979) vol. II, §287, at 202-3, offers valuable guidance:

Furthermore, it seems plain that possible witnesses whose
testimony would be for any reason comparatively unimportant, or cumulative,
or inferior to what is already utilized, might well be dispensed with by
a party on general grounds of expense and inconvenience, without any
apprehension as to the tenor of their testimony.  In other words, put
somewhat more strongly, there is a general limitation (depending for its
application on the facts of each case) that the inference cannot fairly be
drawn except from the non-production of witnesses whose testimony would be superior
in respect to the fact to be proved.

[Emphasis in original.]

[31]      The general proposition long applied in British
Columbia, stated by Mr. Justice Davey in Barker v. McQuahe
(1964), 49 W.W.R. 685 (B.C.C.A.), is that an inference adverse to a litigant
may be drawn if, without sufficient explanation, that litigant fails to call a
witness who might be expected to give supporting evidence.  Further, said Mr. Justice
Davey at 689, a plaintiff seeking damages for personal injuries “ought to call
all doctors who attended him in respect of any important aspect of the matters
that are in dispute, or explain why he does not do so”.

[32]      It seems to me that the tactic of asking for an
adverse inference is much over-used in today’s legal environment, and requires,
at the least, a threshold examination by the trial judge before such an
instruction is given to the jury.

[33]      A judge trying a case with a jury is bound to
instruct the jury as to the applicable law, and thereby to assist the jury in
its consideration of the evidence and determination of the facts.  Whether an
adverse inference is drawn from failure to call a witness is a question for the
trier of fact.  In this case, I cannot say the trial judge erred in the content
of the instruction she gave the jury on the matter of adverse inferences. 
However, it bears reminding that the delivery of medical care is not now as it
was in 1964 when Mr. Justice Davey made his comments in Barker. 
There is, today, a proliferation of “walk-in” medical clinics where the role of
the “walk-in” clinic physician may be more limited than was the role of a
family physician in 1964.  Further, even people who have a family doctor may
attend one or more such clinics as a matter of convenience, but still rely upon
their family physician for core medical advice and treatment.  The
proposition stated by Mr. Justice Davey does not anticipate this present
model of medical care.  Likewise, the discovery process available to both sides
of a lawsuit is not now as it was in 1964 when, in explaining his view on the
need to call all treating physicians, Mr. Justice Davey referred to the
professional confidence between a doctor and the patient.  Today, the free
exchange of information and provision of clinical records through document
discovery raises the possibility that an adverse inference may be sought in
circumstances where it is known to counsel asking for the inference that the
opinion of the doctor in question was not adverse to the opposite party.

[34]      Taking the admonition of Mr. Justice Davey to
the extreme in today’s patchwork of medical services raises the likelihood of
increased litigation costs attendant upon more medical reports from physicians
or additional attendances of physicians at court, with little added to the
trial process but time and expense, and nothing added to the knowledge of
counsel.  Perhaps the idea that an adverse inference may be sought, on the
authority of Barker, for the reason that every walk-in clinic physician
was not called fits within the description of “punctilio” that is no longer to
bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie,
[1978] 2 S.C.R. 1299, in a different context.

[35]      In this environment,
and bearing in mind the position of a lawyer bound to be truthful to the court,
it seems to me there is a threshold question that must be addressed before the
instruction on adverse inferences is given to the jury:  whether, given the
evidence before the court, given the explanations proffered for not calling the
witness, given the nature of the evidence that could be provided by the
witness, given the extent of disclosure of that physician’s clinical notes, and
given the circumstances of the trial (e.g., an initial agreement to introduce
clinical records that work contrary to the inference, or incorporation of that
witness’s views or observations in the report of a witness called by the other
side) a juror could reasonably draw the inference that the witness not called
would have given evidence detrimental to the party’s case.

[166]     The
plaintiff submits that it was not necessary to call Dr. Dueck or Dr. Peters
or Ms. Bulawka as expert witnesses since there were other witnesses who
provided expert reports.  While that explanation is accepted with regard to Dr. Peters
and Ms. Bulawka, the concern remains with regard to Dr. Dueck.  He
attended as a witness but, as the defendant submits, was shielded from full
cross-examination with regard to his opinion because he was not called as an expert. 
I will discuss the relevance of Ms. Bulawka’s evidence below.

[167]     This case
is unique.  Here Dr. Dueck is the plaintiff’s family doctor as he has been
for 17 years.  She continues to trust and rely on him.  In addition to his
involvement in the plaintiff’s treatment after the collision, he is the witness
with the best evidence of the plaintiff’s health prior to the collision, and in
particular her mood, anxiety and depression.  Given the nature of the note made
by him on January 14, 2010 regarding “anxiety/depression”, his evidence
would be relevant to the issue of the additional effect of the collision on the
plaintiff’s enjoyment of life, and it may well be adverse to the interests of
the plaintiff.  This case is therefore distinguishable from the cases relied on
by the plaintiff, particularly Djukic v. Hahn, 2006 BCSC 154.  I
draw an adverse inference from the fact that Dr. Dueck was not called as
an expert witness.

[168]     Dr. Dueck
recorded in his clinical notes that he made observations and a diagnosis on
January 14, 2010 that the physical, mental, social and occupational, and
especially the social and physical areas of her life were affected by anxiety
and depression.  His note is under the heading of Mental Health Plan and the
note is headed “Anxiety/Depression”.  There is a further note dated March 25,
2010 also headed “Anxiety/Depression”.  These and other similar notes are
admissible.  Ms. McLean does not take issue with the fact that she was
suffering from such anxiety at that time.  What is not known from the doctor is
whether it would be his opinion that her enjoyment of life continued to be
diminished by ongoing anxiety and stress after the collision.  If so, the lack
of participation in or enjoyment of those activities cannot be wholly
attributable to the collision.

[169]     With
regard to the factor of loss or impairment of life and lifestyle, Ms. McLean
submits that her leisure activities have been severely affected by the injuries
she sustained in the accident.  In particular, although she was previously an
avid scrapbooker and baker, she engages in those hobbies and other crafts
minimally now.  Housecleaning, she testified, was her pleasure and took her to
a happy place.  Now she is no longer a meticulous housekeeper nor is she an
active healthy cook for her children and baker as she once was.  She once was
an active walker and now can walk for shorter times.

[170]     However, I
am not persuaded by the evidence that is before the court that the accident is
the cause of the loss or restriction of these activities.  The evidence does
not support the temporal or causal connection between the accident and the
reduction of these previously enjoyed activities.  There is no evidence from
the plaintiff or her witnesses that the activities important to her stopped at
the date of the collision other than difficulty grocery shopping in the
immediately following weeks.  There is no evidence from the plaintiff that she
is unable to scrapbook or bake due to certain injuries which are aggravated by
those activities.  Other than her walking, there is no evidence as to the
progression of her ability to resume those activities as she recovers.  The
evidence of walking comes primarily from the witnesses Dr. Craig, Dr. Peters,
Julia McLean and Ms. Larsen.

[171]     Many
witnesses described the plaintiff as kind and positive and thoughtful.  They
did not say that these lovely characteristics have changed.  The witnesses did
not state that that the baking or housecleaning or creating crafts ceased on or
shortly after the accident.

[172]     Julia, who
is a remarkable young woman, testified that her mother had kept a spotless
house when the children were growing up.  She had observed her mother on family
trips and making crafts and sewing and baking in years past as well as being
active with volunteering and the children’s activities.  The evidence is that
since the collision they have gone on a couple of short trips.  She has
observed her mother baking a couple of times and doing some crafts.  However,
Julia no longer lives at home and has a limited opportunity to observe.

[173]     I do note
the testimony of Julia that her mother’s walking is different now, that she
helps her mother with housework more since the collision, and that she has
assisted her mother by driving including home from the appointment with Dr. Greidanus. 
Although Ms. McLean described herself as having become a “cranky mom”,
Julia did not describe her in that way.

[174]     Ms. Larsen
testified that she, the plaintiff and their friends continue since the
collision to have coffee dates, walks and picnics.  However, the walks are more
leisurely and there are no cookies at the plaintiff’s home which is not the
same.

[175]     Ms. Crump’s
evidence was that she has not seen the plaintiff as much since the collision
although their friendship and involvement in volunteering continues.  There was
no evidence of changes from the plaintiff’s previous supermom standard although
I note that there has been a reduced opportunity to observe.

[176]     The
evidence of the plaintiff’s co-worker, Ms. Hample is that the plaintiff made
cards and brought baking to the office.  There is, however, no time frame for
those activities or their cessation, if any.  Ms. Hample has noted that
since the collision the plaintiff has difficulty bending and picking up, and
she assists the plaintiff who she observes to be in pain.

[177]     The
evidence of the plaintiff is of limited assistance.  She testified that prior
to the collision she was a constant cleaner with an intense housekeeping
regime.  When asked how she cleans her home since the collision, the plaintiff
responded:  “I just — I can’t do what I used to do.  I can’t blast out
cleaning.”  She did not say why.

[178]     With
regard to scrapbooking, the last scrapbook created was online in 2011 because
she could not sit then to do a regular scrapbook.  She has not made a scrapbook
for Greyson or many Christmas cards.  Other than the difficulty sitting in
2011, and I understand some continued difficulty sitting, there was no reason
stated for the cessation of these activities.

[179]     The
plaintiff testified that she now bakes maybe once a month, but not the monthly
cakes she previously baked.  She no longer makes almond roca because it is too
intense and takes too long.  Again, there was no reason given nor was there a
reason which related to her injuries.

[180]     I am
mindful of the plaintiff’s physical limitations, particularly with walking. 
However, some activities such as scrapbooking and baking could be undertaken
without sitting for long periods, heavy lifting or reaching, or moving her head
in a way that would aggravate injuries.

[181]     The note
of Dr. Dueck raises a concern that her mood and anxiety may have had an
ongoing contribution to the loss of enjoyment which pre-dated the accident. 
The opinion of Dr. Craig states that a factor that could have impaired her
recovery from injuries from this accident is her “history of depression and
anxiety that pre-dated this accident.”  However, it is the lack of evidence
that is determinative.  The plaintiff has not proven that her loss of enjoyment
of life from reduced participation in important leisure activities is entirely
caused by the collision.

[182]     Ms. McLean
confirmed in cross-examination that throughout 2010 and 2011 no work was missed
or turned down for accident-related injuries.  Minimal work (about four to six
hours each year) was missed for that reason in 2012 and 2013.  In this regard,
the plaintiff was stoic.  The evidence regarding 2014 in unclear.  The
plaintiff reduced her hours in April 2014 although the reason for doing so was
stated only as that she could not continue.  On a broad view of the evidence as
a whole, I accept that her ongoing sciatica and lower back injuries contributed
to the reduction of hours in 2014.

[183]     These
issues highlight the fact that the evidence of the plaintiff is bereft in many
respects with regard to the nature of the injury, the severity and duration of
pain, and disability.  To put that evidence in context I first summarise the
expert medical opinions.

[184]     The expert
medical evidence of Dr. McGraw, Dr. Craig and Dr. Greidanus and Mr. Bos
discuss her back and neck injuries.  Sequentially, Dr. McGraw in June 2012
diagnosed uncomplicated soft tissue injuries to the cervical and lumbar spine. 
The long-term prognosis, he opined, for the cervical spine injuries was good,
and of the lumbar spine, guarded.  He refers to the diagnosis of Dr. Dueck
that Ms. McLean developed sciatica after six months.

[185]     Dr. Craig
in his report of February 2014 opined that Ms. McLean suffered moderate
soft tissue injuries to her neck and back.  He stated that the prognosis is
more guarded for resolution of these injuries “particularly given that she has
had some concurrent mood issues since” the accident.  He also diagnosed a right
labral tear.

[186]     In his
report of May 2014, Dr. Greidanus made the following diagnoses:  Neck
sprain – resolved; Low back sprain – resolved; Alleged sciatica on the left
side.  No objective positive findings on this examination; Suspect a degree of
anxiety.  His diagnosis does not include a labral tear.

[187]     The report
of the physiotherapist, Mr. Bos, diagnoses strains to the right lower
lumbar spine muscles, mid thoracic paraspinals, upper trapezius bilaterally and
the suboccipital muscles.  He also diagnoses a compression injury to the right
hip resulting in a labrum injury.

[188]     The early
history of her injuries is well set out in the evidence of the plaintiff: 
immediately after the accident she felt or was conscious of her leg on the
brake pedal and her neck.  When she telephoned ICBC to make a report, she
stated that she had a headache and her neck and back were bothering her.  Those
symptoms continued the next day when she attended a walk-in clinic.

[189]     In the
week post-accident when she first saw her family doctor, she had a bad
headache, very stiff and sore neck and extremely sore lower back and sore upper
back, as well as left arm complaints like pins and needles.  The twisting and
bending and sitting that are necessary in her job made her back more sore.  Ms. McLean
had committed to working extra shifts and she did not miss any work – either
her regularly scheduled days or the extra shifts.

[190]     For those
two working weeks she was in agony and had excruciating headaches.  The
plaintiff describes her headaches as:  “for a good two years it was constant
awful awful pain”.

[191]     The neck,
upper and lower back pain, and left arm sensations continued through the next
week.  Within a month she attended physiotherapy.  The left arm “pins and
needles” resolved in four to six weeks.

[192]     During
this period of time, the plaintiff had difficulty grocery shopping as she could
not push a full grocery cart.

[193]     However,
there are then large gaps in the plaintiff’s evidence of her injuries.  The
next direct evidence regarding the neck and back injuries is with regard to
increasing her work hours in May 2012.  Ms. McLean testified that at that
time, the headaches, neck, back and hip were excruciatingly painful.

[194]     In the
plaintiff’s direct evidence, the next discussion of injuries and pain is then
regarding the day of the appointment with Dr. Greidanus on May 6,
2014.  She was having great difficulty with her lower back and her left leg
sciatic nerve.  She was in agony and needed the assistance of her daughter,
Julia, to get home from the doctor’s office.  This pain had been going on for a
matter of weeks at that point.

[195]     Ms. McLean
testified that after the collision, she stopped the structured exercise program
at Innovative Fitness because her “pain was increasing”.  The timing is not
known nor is the area or intensity of the pain.  At Core Fitness in the spring
of 2014 there has been pain, again in an unknown area, but she continues to
attend with some breaks for reasons unrelated to the collision.

[196]     At the
conclusion of her direct evidence, the plaintiff stated that she has had recent
improvements with the IMS needles administered by Mr. Bos.  In a leading question
she answered in the affirmative to improvements since doing IMS, starting at
Core Fitness, and reducing her hours.  The improvements are a reduction in
headaches to two to three times per week on average, a better range of motion
in her body and although there is still “pain”, she is moving better.  There
was no other direct evidence from the plaintiff regarding the extent or degree
of recovery from her injuries.

[197]     In
cross-examination, Ms. McLean agreed that in November 2012 when she saw Dr. Peters
she had had improvement in her right hip pain, but would not agree that the
improvement was significant as reported by Dr. Peters who stated that it
was “certainly not nearly as discomforted” as his earlier assessment.

[198]     With
regard to her neck, the plaintiff was reminded of the report of Dr. Peters
where he had found that by November 2012 she had been able to extend and flex
her neck fully.  She did not agree with the doctor’s finding regarding her
neck.  The plaintiff did agree that at the time of Dr. Peter’s note that
her major complaints were chronic headaches, chronic lower back pain and lower
sacrum pain.  The right hip was not in the top three.  She told Dr. Peters
that she was very reluctant to try a corticosteroid injection in the right hip
as had been recommended by a number of treaters including Dr. McGraw.  The
reasons given were based on her experience as a teenager with an injection that
resulted in her being in a cast, and a worry that she could not be immobilised
as a single mother.  The plaintiff to date has not had an injection for her
right hip.

[199]     The
plaintiff agreed that in May 2013 she reported improvement in her symptoms to Dr. Peters. 
She was able to fully flex her right hip but had an aching discomfort after
sitting for a long time.  Her walking was up to one hour.

[200]     In further
cross-examination, she at first could not answer if her left sciatic pain had
improved by the fall of 2012 because it was so painful at the time of her
testimony, 2014, as it had been for the recent months in the spring of 2014 and
the weeks before the trial.  She then agreed that there had been improvement of
the sciatic pain in both sides in 2012.

[201]     The left
arm sensation of pins and needles after the collision appear to have been
investigated in 2012 after three episodes that year of left arm heaviness.  It
has not recurred and was diagnosed as benign.

[202]     The
evidence regarding a labral tear commenced with a leading question in direct
examination after Ms. McLean had described her injuries and her first
attendance at physiotherapy.  She was asked:  “Did you suffer from right groin
pain after the collision?”  She responded in the affirmative and was then asked
and answered:

Q         How soon after
the collision did you notice this pain?

A          I believe it was
always there.  I, myself, I’ve never had back pain like that, and I thought it
was radiating into my groin, but then it became clear to me, I’d say within
four to six weeks, that it was definitely its own entity.

[203]     The
plaintiff was, shortly thereafter, asked in direct:  “Was it your understanding
that there was a possibility of a labral tear?”  She responded that yes, it had
come up in a discussion with Jen, the physiotherapist Ms. Bulawka.

[204]     The entire
remaining evidence of the plaintiff regarding her hip was that it was exacerbated
in May 2012 when she increased her work hours.  She reluctantly agreed in
cross-examination that it had improved by the visit of November 2012 to Dr. Peters. 
She agreed that in the May 2013 examination by Dr. Peters she was able to
fully flex her hip although there was aching discomfort after sitting for a
long time.

[205]     Ms. Bulawka,
in a letter to Dr. Dueck dated March 7, 2011, stated that she
suspected there to be a possible labral tear of the right hip.  She had had
that concern since her treatments of Ms. McLean in the fall of 2010.  As
discussed above with regard to the medical records of Dr. Dueck, Ms. Bulawka
gave evidence without being qualified as an expert witness.  Her clinical
records are admissible for the purpose of her observations and treatment and
the diagnoses recorded.  However, as she was not an expert witness in these
proceedings, there could be no evidence regarding her opinion of an injury to Ms. McLean’s
right hip, and that opinion could not be tested in cross-examination.  Her evidence
regarding the hip is therefore given minimal weight.

[206]     Dr. McGraw
noted in June 2012 with regard to the hip that there was no clicking which is
one indicia.  He noted hip pain on flexion, adduction and internal rotation
which is “suggestive of a torn acetabular labrum”.

[207]     Dr. Craig
in February 2014 opined that the right labral tear was likely due to injuries
from the accident.  However, I note that Ms. McLean had described to him
an ache in her groin present approximately 50% of the time that increased with
sitting, working in a flexed position and walking greater than twenty minutes.

[208]     In
cross-examination, Dr. Craig agreed that he was relying on the patient to
give an accurate representation of her history and current symptoms.  There is
no evidence from Ms. McLean of the state of her hip injury in February
2014, or indeed at any time other than May 2012.  She agreed that it had
improved by November 2012.  As stated above, the fact that she made that report
to Dr. Craig does not, particularly in these circumstances where she gave
minimal evidence regarding her injuries and exaggerated or misrepresented other
facts to treaters, make that report true.  Dr. Craig’s diagnosis was
dependent, at least in part, on facts not proven.

[209]     Dr. Craig
stated that the prognosis was more favourable than with the neck and back
injuries “given that there are some good treatment options available” such as
an injection or a labral repair.

[210]     It was
unfortunate that Dr. Craig testified by way of video deposition.  It would
have been of great benefit to the court to have been able to clarify his
opinion regarding his conclusion that the labral tear was likely caused by the
collision, particularly with regard to the delay in onset of any symptoms of
pain in the right groin, and the report given by Ms. McLean of her
symptoms.

[211]     Mr. Bos
also stated in his report and confirmed in oral evidence that it was his
opinion that the plaintiff had suffered a labral tear as a result of the
accident.  However, he did not satisfactorily explain the delay in onset of the
symptoms which had first been noted by Ms. Bulawka.  The extent to which
he relied on her suspected diagnosis and Ms. McLean’s self-reports which
may not have been accurate, was not clear.  Finally, although his
qualifications as a physiotherapist are accepted, I do not attribute weight to
his opinion with the intricacies of this diagnosis.

[212]     With
regard to the issue of the labral tear, I prefer the evidence of Dr. Greidanus. 
He examined the plaintiff in May 2014 and reviewed all of the medical records
including those of Dr. Peters (who testified in these proceedings as a
non-expert) regarding the suspected labral tear to the right hip.  Dr. Greidanus
interpreted the MRI that was the substance of the brief testimony of Dr. Ko,
whose testimony differed from his report.  In his oral evidence, Dr. Ko
saw a tear whereas in his report a tear was suspected.

[213]     Dr. Greidanus’
evidence discussed and was persuasive with regard to the late onset of the hip
pain, the minimal likelihood of the injury occurring from this type of
collision, the location of the tear which is not where it would be expected
from the collision, and the fact that labral tears are common and often do not
have accompanying pain.  I accept his opinion that there is not enough evidence
to substantiate that there is a labral tear in the plaintiff’s right hip.

[214]     I must
consider the evidence as a whole in order to determine the nature, severity and
duration of the injuries suffered by Ms. McLean in the collision.  The
evidence of Ms. McLean is not full and complete.  The evidence of the
expert and other witnesses is generally consistent that the injuries were
headaches and soft tissue injuries to her neck and upper and lower back, and
sensations in her left arm.  Sciatica to both sides followed from the low back
injury.

[215]     The
severity and duration of the plaintiff’s injuries is not as clear on the
evidence.  The court cannot, as invited by the plaintiff, infer these factors
from the fact of attendance at doctors and physiotherapists.

[216]     The report
of Dr. Greidanus states that the neck and low back sprain have resolved. 
However, I conclude that his examination and report were primarily directed to
the issue of the hip injury and there is other evidence which supports a
finding of some continuing injury to the neck and back.

[217]     The
headaches were at first intense and constant.  Dr. McGraw noted her self
report that a reduction in headaches to six out of seven days had occurred by
May 2012.  However, she testified that in May 2012 they increased with her
increase in her work hours.  Most recently they are an average of two or three
times per week.  I conclude that the severity and frequency diminished after
about two years.  I accept that the headaches continue as she described.

[218]     Dr. McGraw
also recorded the plaintiff’s self report regarding her neck that on the date
of the examination, she was beginning to have some pain free days.  Similar to
the headaches, the evidence is inconsistent as she testified that the neck pain
increased in the same month with the increase in work hours.  Dr. Peters
made the objective finding that full extension and flexion of her neck had
returned by November 2012.

[219]     The
evidence and report of Mr. Bos is of limited assistance.  Although his
report is lengthy, the objective examinations are not related in any way to any
time period or to each other.  On the report, it is not possible to determine
when any of the listed observations were made.  In cross-examination, some
observations were related to his clinical notes.  It is not the task of the
court to cross reference an expert report to clinical notes in order to discern
the date of those observations.

[220]     I do find
on the evidence of Mr. Bos that there was improvement throughout in the
treatment of the plaintiff’s injuries.  There are frequent statements to that
effect in the report.  Further, Mr. Bos confirmed that he was aware of the
ethical considerations of his profession that direct physiotherapists to be
mindful of continued improvement in the course of treatment.  As Ms. McLean
attended 159 treatment sessions with the clinic, he confirmed that he would not
have continued treatment without demonstrated progress of recovery from her
injuries.

[221]     Similarly,
the evidence of Ms. Bulawka confirmed that in the months that she treated Ms. McLean
after the collision, there were injuries and there was improvement.  It was
clear that Ms. Bulawka was very involved with Ms. McLean and had a
real connection with her.  At times her evidence veered into the realm of
advocacy on behalf of the plaintiff.

[222]     Ms. McLean
agreed in cross-examination that the left sciatic pain had improved by the fall
of 2012.  However, in the spring of 2014 it returned.  It has been treated with
IMS needles and rehab which assist with both pain and improving movement.  The
right sciatic pain is resolved.

[223]     I conclude
that the injury to the plaintiff’s neck and upper back were substantially
improved after two years.  This is the time period when the sciatic pain,
headaches and neck had improved.  Since then, some sciatic pain has returned
and low back pain continues.  It is the headaches, low back and sciatic pain
which are ongoing.

[224]     Approximately
4-6 weeks after the accident, Ms. McLean noticed a pain in her right hip. 
It has been diagnosed as a labral tear by Dr. Craig; Dr. Greidanus
opines that there is insufficient evidence to confirm the tear.  As stated
above, I prefer the evidence of Dr. Greidanus.  I do not find that there
is sufficient evidence to establish that the plaintiff has a labral tear. 
There is also an issue of causation.  It is not clear on the evidence that if a
labral tear exists it was caused by the accident.  In any event, there was a
significant improvement in the hip pain after two years and further improvement
by May 2013.  Further, as described by Dr. Craig, there are good treatment
options available although Ms. McLean has declined to avail herself of the
injections.  If I had found that a tear resulted from the collision, I would
have found a failure to mitigate as her failure to take the recommended
treatment was unreasonable.

4.              
Non-Pecuniary Damages Assessed

[225]     The
plaintiff argues that an appropriate award for non-pecuniary damages in this
case would be between $80,000 and $100,000.  The plaintiff relies on Stapley
v. Hejslet, 2006 BCCA 34; Combs v. Moorman, 2012 BCSC 1001; Knight
v. Belton, 2010 BCSC 1305; and Hildebrand v. Musseau, 2010 BCSC
1022.

[226]     The
defendant argues that an appropriate award for non-pecuniary damages would be
between $15,000 and $45,000.  However, none of the cases relied on by the
defendant award less than $35,000 in non-pecuniary damages.  The defendant
relies on Pavlovic v. Shields -and- Pavlovic v. Dickinson, 2009 BCSC
345; Fortin v. Lowden, 2009 BCSC 1123; Brock v. King, 2009 BCSC
1179; Redl v. Sellin, 2013 BCSC 581; Wepryk v. Juraschka, 2012
BCSC 974; Hamilton v. Vance, 2007 BCSC 1001; Sylte v.
Rodriguez, 2010 BCSC 207; Ragneborg v. Giesbrecht, 2009 BCSC 110; Parker
v. Shah, 2013 BCSC 1599; Rogalsky v. Harrett, 2014 BCSC 1255; Schmidt
v. Hawkins, 2010 BCSC 1154; and Dutchak v. Fowler, 2010 BCSC 128.

[227]     Plaintiff’s
counsel referred to the injuries and the loss of lifestyle on the ranch of the
plaintiff in Stapley.  I find that the severity, the lasting effects of
the injuries, and the loss of lifestyle are significantly more severe in Stapley
than in the present case.  Ms. McLean has been able to continue as an uncertified
dental assistant throughout her recovery.  In addition, it is not clear that
the changes in the plaintiff’s activities, such as scrapbooking, were caused by
the accident. Hildebrand can also be distinguished on its facts
including that the 21-year-old broke various bones, convalesced for
eight-and-a-half-months and had a permanent disability in his ankle.

[228]     I find the
circumstances in Combs and Knight are also markedly worse than
those experienced by Ms. McLean.  In Combs, the plaintiff suffered
severe injuries that required treatment in a hospital immediately following the
accident.  In addition, the plaintiff was suffering from daily pain in her
neck, back and hip four years after the accident.  In Knight, the
plaintiff’s injuries were more serious and she was only able to return to a
reduced schedule of four hours of work a week after ten months and one full day
a week after more than a year after the accident.

[229]     In Brock,
relied on by the defendant, the plaintiff was able to continue working in her
office position but, as a result of the accident, was limited in what she could
do with household duties including bending, carrying and stairs.  In awarding
the plaintiff $50,000, Mr. Justice Punnett found that the plaintiff
continued to suffer from headaches, back and neck pain that interfered with
work and daily activities.  In addition, this award included compensation for
the loss of future housekeeping capacity.

[230]     In Wepryk,
the plaintiff was 43 years old and working as a hairdresser.  At the time of
the accident, the plaintiff had a well-managed anxiety and depression disorder
and her home was described as immaculate.  Post-accident, the plaintiff was not
able to do all of her previous housekeeping tasks and entertained less.  The
headaches and pain in her neck, shoulder and back, present at trial, affected
what activities she could do and she was also awarded $50,000.

[231]     In Schmidt
and Dutchak, the plaintiffs had largely returned to their
pre-accident activities by the date of the trial although some tasks caused
pain not present before the accidents.  In both cases the plaintiff was awarded
$45,000.

[232]     While each
case must be assessed on their particular facts, I find that the circumstances
of the plaintiff are most similar to those in Brock and Wepryk,
even though in this case there are issues with credibility and an adverse
inference.  I therefore award the plaintiff $50,000, taking into account the
limitations she has with respect to heavy housework, especially the ability to
bend.  I am not persuaded that the reduced frequently in activities such as
scrapbooking and baking are the direct result of the accident.  I also find
that Ms. McLean’s level of continuing pain in her back and headaches and
sciatica, while present, are on the lower end of the cases referred to.  The
pain in her hip I have found is not caused by the accident and the neck pain is
largely resolved.

D.             
Loss of Past and Future Housekeeping Capacity

[233]     Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652, 178 (C.A.), is the leading
authority in British Columbia on this head of damage.  It is a separate head of
damage that can be awarded in circumstances where the plaintiff’s capacity and
ability to perform household tasks have been compromised by injury.  The damage
award is to be commensurate with the loss.

[234]     Kroeker
was discussed in Wesbroek v. Brizuela, 2014 BCCA 48.  At
paras. 74-77, Garson J.A. stated for the Court of Appeal:

[74]      I agree that the trial judge miscategorised the
homemaking award under the head of future cost of care damages.  In O’Connell
v. Yung, 2012 BCCA 57 at paras. 59−68, this Court clarified
that homemaking costs, properly considered, are awarded for loss of capacity
and are distinct from possible future cost of care claims.  An award ordered
for homemaking is for the value of the work that would have been done by the
plaintiff but which he or she is incapable of performing because of the
injuries at issue.  The plaintiff has lost an asset: his or her ability to
perform household tasks that would have been of value to him or herself as well
as others in the family unit but for the accident.  This is different from
future care costs where what is being compensated is the value of services that
are reasonably expected to be rendered to the plaintiff rather than by
the plaintiff.

[76]      As noted in O’Connell damages for loss of
capacity to complete homemaking tasks are not dependent upon whether
replacement costs are actually incurred because what is being compensated is
the loss of capacity itself.  In contrast, damages for future cost of care are
“directly related to the expenses that may reasonably be expected to be
required” (O’Connell at para. 67) and cannot be awarded should no
such reasonable expectation of an actual future expense be found.  In the
instant case, the evidence supports an award for the loss of capacity to
perform certain homemaking tasks; however, I agree that this award should be
approached conservatively.

[77]      Gibbs J.A., speaking
for the majority in Kroeker, suggested a cautionary approach to awards
for the loss of ability to perform household tasks.  At para. 29 he wrote:

There is much merit in the contention that the court ought
to be cautious in approving what appears to be an addition to the heads of
compensable injury lest it unleash a flood of excessive claims.  But as the law
has developed it would not be appropriate to deny to plaintiffs in this
province a common law remedy available to plaintiffs in other provinces and in
other common law jurisdictions.  It will be the duty of trial judges and this
Court to restrain awards for this type of claim to an amount of compensation
commensurate with the loss.  With respect to other heads of loss which are
predicated upon the uncertain happening of future events measures have been
devised to prevent the awards from being excessive.  It would be reasonable to
expect that a similar regime of reasonableness will develop in respect of the
kind of claim at issue in this case.

Ultimately, the award for loss of
ability to perform household tasks in Kroeker was reduced by two-thirds,
from $23,000 to $7,000.  As in Kroeker, a cautionary approach should be
taken here.

[235]     The
defendant submits that any losses the plaintiff has incurred with regard to her
ability to perform housekeeping tasks are properly compensated as part of the
non-pecuniary damage award.  I agree.

[236]     This is an
appropriate case to include any losses suffered by the plaintiff with regard to
housekeeping ability in the award for non-pecuniary damages because the
evidence is insufficient to make a determination of the extent of loss.  While
I accept that the plaintiff’s injuries have had an effect on her ability to do
some heavier house cleaning tasks, the evidence of the plaintiff is bereft of
specific concerns.  She says for example that her closets are not as clean, and
I can assume although it was not stated, that she refers to the time after the
collision.  But there is no evidence as to why she is unable to clean closets. 
It is not known if it is because of pain and if so, which area is rendered
painful by such cleaning.  Further, it is not known how this alleged difficulty
progressed over the four years since the collision or the present state and
reason for any ongoing difficulty.

[237]     There is
therefore no separate award for loss of housekeeping capacity.

E.             
Past Loss of Earning Capacity

[238]     It is the
submission of the plaintiff that the injury she sustained as a result of the
collision caused an impairment such that it impeded the plaintiff’s ability to
sustain full-time work.  She submits that the wage loss from full-time work can
be assessed with regard to employment as a hospital administrative assistant or
as a dental assistant or as a general administrative assistant.  On the basis
of the income figures taken from the Income Loss Report of Mr. Carson, the
losses are quantified at $174,448.00, $142,233.00, and $161,764.00
respectively.  The award sought is $159,481.66, as a gross amount under this
head of damage.

[239]     However, Ms. McLean
did not work full-time at the time of the collision.  Thus it is not a matter
of sustaining full-time work but obtaining full-time work.

[240]     The
defendant submits that there has been no past wage loss proven and as such
there should be no award of damages under this heading.

[241]    
The income earned by Ms. McLean from her employment with Dr. Aghdasi
since the date of the accident is as follows:

INCOME
(from Dr. Aghdasi employment only):

2010                2011                2012                2013                  2014

$2756             $3,207             $9,790           $10,682              $7,068

2010
income prorated from Sept. 11, 2010 is $859

2014 income is prorated to
Aug. 25, 2014 (based on 12 hrs/week, at $17.85/hr)

[242]     In the
years prior to the accident, her earnings from all sources were:

[243]     In
addition, since 2011, Ms. McLean receives approximately $3000 per month
for child and spousal support.

[244]     The
plaintiff’s detailed work history is as follows.  After graduation from high
school in North Vancouver in 1987, she worked at a secretarial service in
Vancouver, The Mail Room for approximately one year.  Commencing in 1988, she
worked at Can Tec in an administrative secretarial position for approximately
one year.

[245]     In the
early 1990s, she worked at Capilano College in North Vancouver at the main
reception desk for approximately six months as a receptionist and in a clerical
position.

[246]     For
approximately six months in 1994 to 1995, the plaintiff worked as an
uncertified dental assistant approximately 30 hours per week at a dental office
in West Vancouver.  After her third child was born in 1996, the plaintiff
assisted her husband in his construction company, Coast Mountain Construction
with basic bookkeeping and typing quotes and some physical work including
cleaning for approximately ten years until their final separation in 2006.

[247]     In
February 2002, the plaintiff began work at Dr. Aghdasi’s office once
per month as an uncertified dental assistant assisting Dr. Penner who did
orthodontics at that office.

[248]     In 2003,
the plaintiff also began working with Dr. Aghdasi for four hours per week on
Monday evenings as an uncertified dental assistant.

[249]     The
plaintiff’s full-time employment with Hendrix Restaurant Equipment and Supplies
commenced in 2008.  That employment continued for 1½ years until the job was
made redundant as a result of the company’s move.  During that time, the
plaintiff continued her work at Dr. Aghdasi’s office for four hours on
Monday evenings but she gave up her work with Dr. Penner on Fridays.  She
therefore worked full-time with an additional four hours part-time in another
location on Monday evenings.  She reported to Dr. Dueck that she found the
full-time job at Hendrix stressful.

[250]     After the
position at Hendrix ended in 2010, Ms. McLean received unemployment
insurance and then returned to working Monday nights for Dr. Penner to
assist him with his orthodontic practice on a more casual basis.  On the Monday
after the accident in September 2010, Ms. McLean commenced working
extra shifts for a coworker for two weeks as she had previously committed.  For
those two weeks, she worked four days a week to carry out her commitment as she
needed the extra income, although she was in pain.

[251]     After
those two weeks, she went back to her schedule of four hours on Monday night
and assisting Dr. Penner either on Fridays or weekends as needed.  She
assisted when needed with extra shifts.

[252]     In
February 2012, she increased her weekly work schedule to 12 hours per week,
taking on extra hours on Tuesdays to assist Dr. Aghdasi in addition to her
four hours Monday evening at reception and the assisting of Dr. Penner.

[253]     In
May 2012, Ms. McLean increased her hours from 12 hours a week but
found that the extra hours resulted in more pain in her neck, back and hip and
headaches.

[254]     From
January 2013 her hours again become 12 hours per week.  In approximately
April 2014, she stopped working Tuesdays.  Dr. Aghdasi did not know
why the plaintiff reduced her hours of work.  The plaintiff said that she could
not continue but she did not testify as to why she was unable to continue
working.  In the spring of 2014, Ms. McLean was also dealing with her
son’s illness and her other health concerns.

[255]     There is
evidence in the clinical records of Dr. Dueck and Ms. Bulawka that
they recommended that the plaintiff limit her work hours.  However, there is no
evidence that she acted on this advice, or that she would have worked more
hours.  That she continued, until April 2014, to work substantially all of her
previous hours and take on extra hours is, in my view, determinative of her
ability to do so and her preference to continue her part-time schedule.

[256]     The
evidence of the plaintiff was that for 2010, and 2011, she did not turn down or
miss any hours working at the dental clinic as a result of accident-related
injuries.  Only four to six hours per year were missed in 2012 and 2013.  In
addition from 2011 to 2013, she also covered extra shifts for coworkers for
approximately two weeks each year.  In 2012 and 2013, she would also work 2½ to
3 hours on Thursdays if she was needed.

[257]     In 2013,
she earned her highest earnings at the dental office: $10,682.

[258]     There is
no evidence that she would have worked full-time in any capacity.  The entire
evidence regarding her intention to obtain full-time employment is as follows
as submitted by the defendant:

111.     The Plaintiff
testified that it was her intention to obtain full time employment doing
administrative work particularly at the “new hospital in Abbotsford”.  It
remains her plan to seek a full time position.  Reference was made to relatives
associated with the Abbotsford Hospital in some way (brother in law is a Doctor
and sister is a retired employee of the BC Cancer Agency) but they were not
called leading to a possible adverse inference both in terms of the failure to
call same and in terms of failure to mitigate in terms of actually seeking
employment.

112.     The Plaintiff confirmed in cross
that she has not applied for any positions at any other dental office,
hospital, medical clinic or any other sort of employment since the date of the
subject accident.  The only effort made of any kind was to review some on line
postings “on the Fraser Health web site” but has never actually applied
anywhere before or after the subject accident nor taken any sort of additional
training or courses since the subject accident.  There is no evidence that the
Plaintiff was prevented from seeking or working full time (at the very least)
as a receptionist (at the very least) due to the subject accident.  It is the
actions of the Plaintiff that must trump or over-ride the submission that but
for the accident she would have been working full time.  It was and is her
choice to be a part time participant in the labour force – just as she has been
since 2002 (with the exception of her time at the restaurant supply company).  Be
it the need to raise her children and see them out of the house and/or dealing
with/settling her marital issues as well as the established fact that she
receives money from enough sources to support herself and her children as all
possible reasons for only working part time those are her reasons and no
criticism of those choices is submitted but they cannot be re-interpreted and
presented as some sort of proof to substantiate a non-existent past wage loss
claim.

The plaintiff completed an on-line course in 2010 prior
to the accident.

[259]     On a broad
view of her evidence, I accept that the reduction in work hours in April 2014
was due at least in part to ongoing accident-related low back pain and sciatica
although there were other stressors in the plaintiff’s life at that time.  I
cannot find that there were any other work-related losses suffered by the
plaintiff in this time period which are attributable to the accident.

[260]     It is not
known when in April those work hours were reduced.  From mid-April to the end
of August 2014, 19 weeks with 8 hours per week missed at $17.85 per hour, result
in a past wage loss of $2713.  This amount is the loss suffered.  I so award.

F.             
Future Loss of Earning Capacity

[261]     The plaintiff
submits and I agree that the capital asset approach to assessing her loss of
future earning capacity is the correct approach.  The law in that regard is set
out by Garson J.A. in the case of Perren v. Lalari, 2010 BCCA 140 at
para. 32:

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss.  If the
plaintiff discharges that burden of proof, then depending upon the facts of the
case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown.  The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok.
 The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych.  A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment.  That was the
case in both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[262]     The
plaintiff relies on the Functional Capacity Evaluation Report of Mr. Russell
McNeil dated December 23, 2013.  Counsel provided extensive and helpful
submissions regarding this report.  I have considered those submissions in
arriving at the following conclusions.

[263]    
The strong concerns of the defendant that the report should be given
little or no weight are summarised in an excerpt from the first submission:

96.       No
differentiation was made between the duties of a non certified and certified
dental assistant in his reports and in fact he did not know which qualification
she held but assumed she was a certified dental assistant.  That is a basic
fundamental element of this case and that alone is a fatal flaw in our
submission.  It is not clear at all to the reader that he is using only
elements of an American classification system (O-Net vs. the Canadian NOC) and
it was only under cross examination that it became clear how many elements of
the O-Net details report were not considered by him.  Similarly the broad range
of the job descriptions encompassed by the O-Net classification system only
became apparent under cross-examination.  He did not seek any information from
the Plaintiff’s actual employer nor any documentary evidence – be it from the
College of Dental Surgeons or anyone else.  It was established his FAB system
is portable so clearly it could have been applied when she was actually working
(or at home – there was no home or work visit) if it is the valuable tool he
considers it to be.  Instead non real world simulations were used and one of
the job descriptions he used had no relevance at all given the lack of evidence
about any sort of construction site cleaner position so the Court is left with
his opinion about dental assistant positions and administrative assistant
positions.  A further fundamental difficulty is that his report contradicts
what the Plaintiff has actually been doing since the accident and has been able
to do – her level of disability according to him – it is submitted – is
supported by no one and does not reflect what has been happening in the
Plaintiff’s vocational life.

97.       Regarding
O-NET, the complete (his report does not list the complete detail report) 
O-NET Details Report for Dental Assistants was put to Mr. McNeil and
entered as an Exhibit.  He confirmed that he relied, in part, on the physical
demands listed therein.  He agreed that the “Sample of Reported Job Titles”,
which includes certified dental assistants, dental assistants, certified
registered dental assistants, orthodontic assistants, surgical assistants,
amongst others, is not listed in his report.  He does not believe that the wide
variety of job titles makes any difference.  It is submitted that this is
either advocacy or illogical – either way that alone undermines the utility of
his reports.  He believes that certified and uncertified dental assistants
require all the same physical tasks.  This is clearly wrong as per the evidence
of Dr. Aghdasi, Dr. Penner and even the Plaintiff’s argument – recall
the pamphlet introduced on behalf of the Plaintiff authored by the College
after the Defendant had entered the relevant College By-Laws.  Some of the
“Core Tasks” (that the Plaintiff is not certified to do i.e. taking x-rays,
fabricating impressions) were put to Mr. McNeil; however, he stated that
the Core Tasks are not his concern; it does not matter to him whether or not
she can take an x-ray, he focuses on the physical demands of the
classification, which he considers to be the starting foundation to determining
someone’s capacity to return to the job.  He repeated that he is not concerned
with the specific tasks that the Plaintiff does at work, just the physical
tasks.  His understanding of the physical requirements of the job comes from
what the Plaintiff tells him about what she does and the basic requirements of
her job.  He then testified that he does not need to know what job duties she
has to perform, that she could be scratching her head all day, he just needs to
know physically what she does all day.  Similarly, with the exception of any
physical tasks, he is not concerned about any of the other headings listed in
the O-NET Detailed Report (i.e. Tools and Technology, Skills, Knowledge, Work
Activities, Work Context, Job Zone, Education, Credentials etc.).

98.       The
same is true with respect to the O-NET Detailed Report for Executive
Secretaries and Executive Administrative Assistant.  With respect to
administrative assistant, Mr. McNeil confirmed his opinion that the
Plaintiff is capable of full-time work with accommodations at a competitively
employable work place and capable of part-time work as well.

99.       With
respect to construction site cleaning, he understood that the Plaintiff was
working two weekends a month at the time of the accident as well as dental
assisting four hours a week on Mondays and 8-10 hours a week on Tuesdays.

100.     He
confirmed that the level of work required for dental assistants, from O-NET, is
“sedentary”, which involves lifting and carrying less than 15 pounds.  He
agreed that in testing the Plaintiff was able to lift 15 pounds although she
would need to be able to lift 20 pounds to be considered able to do “light”
work, the next category.  He later confirmed (p.47 of his report) that the
Plaintiff carried 30 pounds for 30 feet two times and 20 pounds on the third
try.  He confirmed that both the dental assistant and administrative assistant
jobs fall into the “sedentary” category.  He also confirmed the Plaintiff was
able to safely handle 20 pounds.

101.     Mr. McNeil
confirmed that he did not test pushing or pulling in his assessment.

102.     It was his understanding that at
the time of the accident, the Plaintiff was working four hours a week as a
dental assistant and was also working as a construction site cleaner.  If the
latter is true no evidence was presented in that regard (and is not mentioned
by anyone else nor in the tax returns) and if not true then the Plaintiff
provided fundamentally incorrect information.  In either case it reflects
poorly on not only Mr. McNeil but the reliability and credibility of the
Plaintiff.

[264]     The
primary issues taken by the defendant were with Mr. McNeil’s
qualifications, his use of the ONET or American job standards, and his use of
the job standard for a certified dental assistant since he was unaware that the
plaintiff was an uncertified dental assistant which involves different work.

[265]     The
defendant further notes credibility issues with the plaintiff’s self-reports to
Mr. McNeil as, again, she includes her work as a construction cleaner when
there was no evidence of that job in her testimony.  Contrary to her testimony,
she told Mr. McNeil that she would have increased the number of hours
worked as a dental assistant, and that she was advised not to look for work in
a medical office or hospital.  Similarly, the plaintiff reported to Mr. McNeil
that she had just started jogging daily prior to the accident when there was no
evidence of jogging in her testimony.  Ms. McLean reported constant daily
headaches to Mr. McNeil.  This is inconsistent with her reports to other
doctors at that time.  As stated above, I have found that the plaintiff’s
self-reports are not entirely credible.  The results of examinations and
assessments are therefore flawed to the extent that they are necessarily based
in part on those self-reports.

[266]     With
regard to the issues raised regarding the qualifications of Mr. McNeil,
for the purpose of this report, I accept his qualifications.

[267]     I agree
that it is problematic that Mr. McNeil utilised a standard that was not
accurate in that he tested the plaintiff for a category of work, certified
dental assistant, that differs from her work as an uncertified dental assistant. 
I accept the evidence of Dr. Penner regarding the distinction which can be
summarised as the reduced ability to do work inside a patient’s mouth.

[268]     However,
the narrative of the report discusses the problems encountered by Ms. McLean
at work since the collision which are sitting, reaching and bending.  I accept
her evidence in that regard.  It was corroborated by her employers and her
co-worker, Ms. Hample.

[269]     On the
evidence, it is likely that Ms. McLean would seek full-time employment at
some time in the future.  I accept that while the plaintiff could continue her
part-time work as a dental assistant, it is unlikely that she could work
full-time as a dental assistant.  The accident resulted in her loss of that
capacity and renders her a less valuable employee in that work on a full-time
basis.

[270]     The report
states that she is capable of full-time work as an administrative assistant
with restrictions for prolonged sitting and with accommodations.  Based on her
past history I find that it is unlikely that she would seek employment in a
hospital setting, but more likely would look for work similar to that she
performed at Hendrix in the general labour market.

[271]     But for
the accident, the plaintiff may have sought full-time work in her field as an
uncertified dental assistant.  She has lost that ability as a result of the
accident.  Notwithstanding the accident, I find it unlikely that she would have
sought and obtained work as an administrative assistant in the public sector
with the attendant enhanced benefits and somewhat higher wage.  As a result of
the accident, her job search and job performance in a full-time job as a
general administrative assistant will be somewhat restrained by the need for
accommodations.

[272]     It is the
submission of the plaintiff that an award of $250,000 should be made under this
head of damages.  The defendant submits that no award should be made in this
respect.

[273]     The report
of Mr. Robert Carson dated May 30, 2014 is of limited assistance in
applying the capital asset approach, particularly given the plaintiff’s work
history.  I am satisfied that the plaintiff has lost the ability to take
advantage of all employment opportunities and is somewhat less marketable to
employers.

[274]     While the
plaintiff may desire to work as an administrative assistant in a hospital, the
evidence does not support a finding that she will pursue that intention. 
However given the circumstances, I find there is a substantial possibility that
the plaintiff’s lost capacity might result in a pecuniary loss.  In the
circumstances of this case the loss cannot be calculated on a loss of earnings
approach.  I find that as a result of the injuries the plaintiff will be limited
from opportunities that might otherwise have been available to her.  In
addition, she may need accommodations from an employer which would make her
less employable.

[275]     It is not
possible to determine exactly what path the plaintiff’s life will take.  This
award cannot be made with any mathematical precision.  I would award $75,000
for loss of future earning capacity.

G.            
Cost of Future Care

[276]     Mr. Carson
prepared a report dated May 26, 2014 which lists the calculations of the
net present values of the future cost of the care items and services
recommended by Mr. McNeil and Mr. Bos.  He calculated the total
present values of the items and services to the life expectancy of Ms. McLean
at $222,703 including the present value of taxes.  The calculations assume that
the recurring costs will remain constant throughout the remaining period of Ms. McLean’s
life expectancy which is 40.2 years from the valuation date.

[277]     The
plaintiff submits that as some of the costs have already been incurred, an
allowance of $150,000 would be appropriate.

[278]     With
regard to some of the items and services included in the claim, the defendant
urges restraint.  This was addressed in Travis v. Kwon, 2009
BCSC 63, which was cited in Penner v. Insurance Corporation of British
Columbia, 2011 BCCA 135:

[13]      Ms. Katalinic
drew our attention to the Court’s comments in Travis v. Kwon, 2009
BCSC 63, where Johnston J. said this about claims for damages for
future care costs:

[109]    Claims for damages for cost of future care have
grown exponentially following the decisions of the Supreme Court of Canada in
the trilogy of decisions usually cited under Andrews v. Grand & Toy,
Alberta Ltd., [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577.

[110]    While such claims are no longer confined to
catastrophic injury cases, it is useful from time to time to remind oneself
that damages for future care grew out of catastrophic injuries and were
intended to ensure, so far as possible, that a catastrophically injured
plaintiff could live as complete and independent a life as was reasonably
attainable through an award of damages.

[111]    This is worth mentioning because the passage of
time has led to claims for items such as, in this case, the present value of
the future cost of a long-handed duster, long-handed scrubber, and replacement
heads for the scrubber, in cases where injuries are nowhere near catastrophic
in nature or result.

This is a reminder that a little
common sense should inform claims under this head, however much they may be
recommended by experts in the field.

[279]     Mr. Carson
attributes $122,639 to homemaking.  However, I rely on the report of Dr. Craig,
rather than that of Mr. McNeil, which states that the plaintiff should be
capable of doing all of her household work but would be limited in doing
household repairs or heavier yard tasks.

[280]     Taking
into account primarily the rehabilitation and health items which are generally
accepted, as well as the seasonal cleaning, I assess the cost of future care at
$63,000.

H.             
Special Damages

[281]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident.  In this case,
Ms. McLean claims special damages in the amount of $20,721.

[282]     The
defendant takes issue with that amount and submits it is excessive and that a
total award of special damages of, at most, $10,000 is appropriate.  Issue is
taken primarily with the cost of physiotherapy.  However, the evidence of Mr. Bos
and Ms. Bulawka was that improvements resulted from the ongoing and
extensive physiotherapy.

[283]     I
therefore allow the plaintiff’s claim for special damages in the amount of
$20,721 as submitted.

I.                
Summary

[284]    
In summary, as a result of the injuries sustained in the motor
vehicle collision of September 11,
2010 Ms. McLean is awarded damages as follows:

[285]     With
regard to costs, unless there are matters of which I am unaware, Ms. McLean
is entitled to her costs on Scale B.  If either party seeks a different
cost result, submissions should be filed within 30 days of the date of these
reasons.  A reply submission should be provided 21 days thereafter.

“The Honourable
Madam Justice Watchuk”