IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160215

Docket: M164230

Registry:
New Westminster

Between:

Melissa Thorson

Plaintiff

And

Cornelius Vandop

Defendant

Before:
The Honourable Madam Justice Devlin

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Melissa Thorson, claims damages for injuries she
sustained as a result of a motor vehicle accident on May 7, 2013. At the time
of the accident, Ms. Thorson was stopped near the intersection of Fraser
Highway and 160^th Street in Surrey, BC when she was rear-ended by
the defendant, Cornelius Vandop. This proceeding was brought under Rule 15-1 of
the Supreme Court Civil Rules, B.C. Reg. 168/2009.

[2]            
Although
liability has not been admitted, there was no evidence led at trial to
suggest that Ms. Thorson was responsible for the accident. I am satisfied
that the plaintiff has established that the defendant was solely liable for the
collision.

[3]            
At issue are Ms. Thorson’s claims for non-pecuniary damages,
special damages and the cost of future care. Accordingly, the Court must
determine the nature and extent of the injuries suffered by Ms. Thorson
and the quantum of damages for those injuries.

THE FACTS

Prior to the Accident

[4]            
Ms. Thorson was 38 years old at time of trial and 35 years old at
the time of the accident. She married her husband Sebastian Simard in August
2009 and they have a five year old daughter. At the time of the accident her
daughter was two-and-a-half years old and they lived in Langley. They now live
in a single family residence in Surrey, BC.

[5]            
Ms. Thorson is very well-educated. She obtained a Community Support
Worker certificate from Kwantlen Polytechnic University; a Bachelor of Arts in
Psychology from UBC; and a Master’s degree in Education from the University of
Victoria. At the time of the accident, she was employed by Fraser Health as an
Adult Clinical Addictions Counsellor at Creekside Detox facility. She now works
at the Langley Memorial Hospital as a Mental Health Liaison and Case Manager.

[6]            
Ms. Thorson was in excellent physical and mental health. She was
very active and there was nothing that impeded or hindered her activities. She
attended the gym three to five times per week where she engaged in an intense
weight training regime. If not at the gym, she would participate in boot camp
sessions three times per week as well as doing yoga once per week. She and her
husband also enjoyed regular hiking although this tapered off after the birth
of their daughter. Although she was involved in a motor vehicle accident over
fifteen years ago, there were no lingering injuries from that accident. Other
than the occasional stress headache, which Ms. Thorson found relief
through massage, she was in good health.

The Accident

[7]            
The parties filed an Agreed Statement of Facts, which included details
of the accident. The accident occurred around 8:00 a.m. on May 7, 2013. Ms. Thorson,
driving a 2007 Mazda 3 sedan with her young daughter seated in the back seat,
was travelling westbound on Fraser Highway in Surrey, BC. Ms. Thorson had
come to a complete stop behind a number of other cars shortly before the
intersection of 160^th Street.  Mr. Vandop, driving a one ton
4×4 Dodge pick-up truck directly behind Ms. Thorson, failed to come to a
stop and rear-ended Ms. Thorson’s vehicle. The impact of the collision was
forceful and caused Ms. Thorson’s car to be pushed forward and shattered
the rear window. The back end and trunk was crushed and Ms. Thorson’s car
was rendered a total loss.

[8]            
After the collision, the cars were moved off the road to a safe
location. No emergency services attended the scene and Ms. Thorson’s car
was towed away. Ms. Thorson testified that she felt overwhelmed and scared
after the collision and she and her daughter were crying. They were able to
depart the accident scene on their own in a taxi.

Liability

[9]            
As stated earlier, although liability is not admitted, the defendant has
not suggested or put to the plaintiff that she was responsible for the
accident. In fact, during his examination for discovery, the defendant admitted
that at the time of the collision he was looking in his rear view mirror and
not paying attention to the car in front of him. Accordingly, I find the
defendant is solely responsible for the collision.

After the Accident

[10]        
Ms. Thorson did not go to work on the day of the accident. She felt
pain in both her neck and shoulders so she went to the Valley Centre Medical
walk-in clinic where she was seen by Dr. Aspinall. She was advised to
rest, apply ice to her sore area, take ibuprofen and follow-up with her family
doctor.

[11]        
On May 10, 2013, Ms. Thorson went to see Dr. Cox, her family
doctor. She had pain in her neck and shoulders with some stiffness in her upper
back. She also had a headache. Dr. Cox’s diagnosis was that Ms. Thorson
had a soft tissue injury and recommended rest, analgesics, and massage. As
detailed later in this judgment, she continued to see Dr. Cox over the
next couple of years as a result of the injuries sustained from the accident.

[12]        
Ms. Thorson experienced strong pain in her neck and shoulders
immediately after the accident. She rated the pain as six on a ten point scale.
She also experienced headaches. A few months after the accident she started to
feel pain in her lower back and hip flexors as well as headaches. Her condition
did not improve for the first six months. She continued to have significant
pain and the frequency of her headaches ranged from five to seven days per
week. Occasionally, her sleep would be disrupted by a headache.

[13]        
Ms. Thorson testified that in the first year since the accident she
experienced the same symptoms, but they fluctuated in frequency and degree. She
would often have a headache and her shoulder and neck were sore and tight. As
recommended by Dr. Cox, she would take a variety of medications to
alleviate her discomfort including Advil, Tylenol and Robaxacet.

[14]        
Ms. Thorson testified that she notices the discomfort in her neck
and shoulders every day and occasionally in her lower back. She testified the
problem areas are from the base of her skull to the middle of her back as well
as her right shoulder. While her headaches have become less frequent, now two
to three times per week, they can last the whole day.

[15]        
Ms. Thorson testified that she only missed work on the day of the
accident. As stated earlier, since that time, she has changed her employment
and now works for the Langley Memorial Hospital as a Mental Health Liaison/Case
Worker. During her work day, she does stretches and takes breaks to alleviate
any discomfort she feels. She also has her variety of over-the-counter
medications at her office in case she needs some medication to deal with the
pain and discomfort.

[16]        
In terms of her recreational activities, Ms. Thorson attempted to
resume her active lifestyle, but has had to reduce the frequency and intensity
of those activities due to her injuries. Ms. Thorson testified that she is
now very careful how she exercises and no longer tries to push herself. She has
stopped attending yoga. She tried to return to boot camp, but soon realized the
intensity of that exercise program aggravated her condition. Although she did
return to the gym for a period of time after the accident, she now prefers to
work out at home doing low impact exercises rather than weight training. She
also does more walking and some cycling. Needless to say, Ms. Thorson is
frustrated that she can no longer engage in the challenging, high level fitness
regime she enjoyed prior to the accident. She has resigned herself to a
maintenance fitness regime.

[17]        
In cross-examination, Ms. Thorson agreed that she was never
directed to stop going to the gym or to boot camp. She explained that she tried
to resume her same level of activity, but she stopped because it aggravated her
injuries. I accept that Ms. Thorson was able to determine if certain
activities aggravated her condition and there was no necessity to produce a
medical opinion to corroborate her assessment. It is evident that the injuries
have had a direct impact on her recreational pursuits.

[18]        
Ms. Thorson continues to do the majority of household chores in
addition to cooking, grocery shopping and doing yard work. Ms. Thorson has
had to rely on her husband to assist her with these activities more frequently
than before the accident.

[19]        
The injuries have also impacted Ms. Thorson’s relationship with her
daughter and her husband. Ms. Thorson testified that she can be less
patient and irritable with her husband and her daughter when experiencing pain.
She admitted she could be “edgy” and “snappy” if she is in pain. She said that
sometimes carrying her daughter would aggravate her symptoms. In terms of their
intimate relationship, Ms. Thorson and her husband testified that her
injuries are always on their mind and have had an impact on them in that they
are prevented from initiating relations when Ms. Thorson is in pain.

[20]        
Ms. Thorson continues to take over-the-counter medications to cope
with her pain. Those include extra strength Tylenol and Ibuprofen, Naproxen and
muscle relaxants such as Robaxacet. She testified that she takes some
combination of these medications three to four times per week to cope with the
pain.

[21]        
As detailed in the medical report from Dr. Cox, Ms. Thorson
has sought treatment through physiotherapy, massage, chiropractic care and
acupuncture. Ms. Thorson testified that she found the greatest relief from
physiotherapy. She did not find relief from either chiropractic care or
acupuncture. In cross-examination, she agreed that she had received massage
treatments for stress headaches prior to the May 2013 accident. Ms. Thorson
also agreed that she had experienced stress since the accident, including
selling the family home and moving to Langley. However, it is clear from the
evidence that the nature of the headaches Ms. Thorson experienced before
the May 2013 accident are much different than those she experienced after the
accident due to her neck and shoulder pain.

[22]        
Ms. Thorson testified that she has experienced some improvement in
her symptoms and they are now less frequent. To her credit, she described the
symptoms as an “inconvenience”. She continues to find some relief through
physiotherapy sessions, stretching and medications. Rather than dwell on the
pain and discomfort, Ms. Thorson has adjusted to the situation and is
determined to press on living her life to the best of her ability.

CIVILIAN WITNESS

Sebastian Simard

[23]        
Mr. Simard is the husband of Ms. Thorson. He is a police
officer employed with the RCMP. Mr. Simard first met his wife in 2006 and
they enjoyed doing a variety of recreational activities together including
long, gruelling hikes two to three times per month. He described his wife as a
fit and physically active woman who went to the gym on a regular basis and had
no restrictions on her activity level. He said they were happy and enjoyed
their time together. After their daughter was born in 2010, their focus shifted
to spending time with her and this reduced their hiking, but his wife continued
to pursue her high level fitness regime.

[24]        
Mr. Simard testified that in the first six months after the
accident, they both felt helpless because the treatments did not seem to
alleviate any of her pain. He found it very difficult to see his wife who was
once so physically active beaten down with the pain. He testified that on at
least two occasions, Ms. Thorson broke down crying, simply overwhelmed by
the restrictions on her because of her injuries.

[25]        
Over the past few months, Mr. Simard has noticed his wife’s
condition improve. While she continues to experience neck pain and frequently
uses medication to address the pain, the pain and discomfort has become part of
their lives. Despite the improvement, he testified that he continues to worry
if his wife will be able to participate in activities such as camping in the
summer. He explained that he constantly wonders “what if” or “can we” when
trying to plan activities.

[26]        
Mr. Simard testified he enjoyed doing recreational activities with
his wife and wishes that she could join him swimming and running. They are now
limited to walking and cycling together.

[27]        
With respect to their intimate relationship, Mr. Simard explained
he has become used to sleeping beside the “magic bag” his wife uses for her
sore neck. He said the pain can interfere with their relationship and he does
not initiate anything if he thinks his wife is experiencing pain.

[28]        
In terms of their future, he testified that he feels good, but is
concerned about how his wife’s restrictions might impact their future.

EXPERT EVIDENCE

Dr. Christopher Cox

[29]        
Dr. Cox is a family practitioner who prepared a medical-legal
report dated August 12, 2015, which has been admitted into evidence. The
defendant chose not to cross-examine Dr. Cox.

[30]        
Dr. Cox has been Ms. Thorson’s family doctor for over ten
years and is well acquainted with her medical history. He noted she had no
significant past medical history pertaining to the injuries she sustained in
the May 2013 motor vehicle accident.

[31]        
Dr. Cox saw Ms. Thorson on May 10, 2013 just three days after
the accident. He conducted a physical examination on her and diagnosed her as
having a soft tissue injury. The treatment plan consisted of analgesics, rest
time and massage.

[32]        
On June 5, 2013, Ms. Thorson was seen by a colleague of Dr. Cox
who also determined that Ms. Thorson had a soft tissue injury of the neck
and back. The treatment recommended was continued physiotherapy and Naprosyn,
an anti-inflammatory medication.

[33]        
Between June 21, 2013 and March 20, 2015, Dr. Cox saw Ms. Thorson
on nine occasions which are detailed in his report. It is clear from the report
that Ms. Thorson reported to Dr. Cox about her efforts to resume her
fitness regime and the consequential pain that resulted. He was also aware that
she was taking anti-inflammatories on an as needed basis, which he considered
appropriate. On August 30, 2013, Dr. Cox encouraged Ms. Thorson to
continue activities as tolerated. In January 2014, Dr. Cox noted
improvement in the neck, but the ongoing lower back pain seemed to be getting
worse.

[34]        
Dr. Cox opined that Ms. Thorson had a “grade 2 soft tissue
injury of her lower back as well as a grade 2 soft injury of her neck which has
resulted in some basal skull headaches”. Further, it was his opinion that the
May 2013 car accident was the sole cause of her condition.

[35]        
In terms of his prognosis, Dr. Cox opined that Ms. Thorson
should eventually recover. At page 4 of his report he stated:

In my opinion this lady should
recover eventually. She is relatively young and was extremely fit prior to the
motor vehicle accident. Although these injuries can take some time to settle
she should in the long term do well. I do not anticipate a major effect on
either her work or recreational activities. Based on my experience it may take
one to five years.

[36]        
With respect to future care, Dr. Cox was of the opinion Ms. Thorson
should continue with physiotherapy for one to five years. In summary, Dr. Cox
concludes his report on a positive note:

…..Melissa has no pre-existing
significant medical conditions. She was involved in an MVA and sustained a
grade 2 soft tissue injury to her cervical and lumbar spine as well as headaches
as a result of this. This has impacted both her personal, recreational, and
work life to some degree. However, she is relatively fit and her prognosis in
the long term would be relatively good.

Dr. D. Grover

[37]        
Dr. Grover was retained by the plaintiff’s counsel to do an
independent medical examination and to prepare a report. Dr. Grover is a joint
replacement and general orthopaedic surgeon. He prepared a medical-legal report
dated October 2, 2015, which was admitted into evidence together with his clinical
notes.

[38]        
Dr. Grover testified that he performed an independent medical
examination on Ms. Thorson on October 2, 2015 over a two hour period,
including a 45 minute physical examination. Dr. Grover testified that the
physical examination revealed mild tenderness and discomfort in the neck and
back areas. Dr. Grover was satisfied that Ms. Thorson was not
exaggerating or “putting on an act” during his examination.

[39]        
He testified that both before and after the meeting, he reviewed the
other medical reports that were provided to him including the notes of Dr. Cox.
Dr. Grover explained that in forming his opinion he relied on a variety of
sources of information including the medical reports provided to him, the
actual physical examination, the interview with the patient and medical
literature/reports.

[40]        
Dr. Grover opined that Ms. Thorson’s post-accident injuries
consist of: (1) myofascial injuries to the neck and back; (2) cervicogenic
headaches; (3) chronic pain.

[41]        
Dr. Grover explained that cervicogenic headaches arise from neck
pain, which rise up from the nerves in the neck into the head to cause the
headache pain. He also explained that unlike acute pain, which is immediate and
intense, chronic pain is lingering, sometimes permanent pain that is difficult
to treat. While it may be intermittent or “wax and wane” and may be mild in
severity, chronic pain is always present. In Ms. Thorson’s case, the fact
that she continues to have frequent headaches and pain in her neck and back two
years after the accident, constitutes chronic pain.

[42]        
Dr. Grover’s opinion was challenged on cross-examination in
particular with respect to his conclusion that there has been no improvement in
Ms. Thorson’s condition. When confronted with evidence from Ms. Thorson
and Dr. Cox regarding her improvement, Dr. Grover admitted that he
should have rephrased his report to reflect the fact that her condition had
“plateaued” meaning while her condition has improved, she is not symptom free.

[43]        
The defendant urges me to me to give little weight to Dr. Grover’s
opinion for two main reasons. Firstly, Dr. Grover made broad statements,
which could not be supported and his opinion was based on misplaced assumptions
such as the timing of the onset of her lower back pain. Secondly, his prognosis
was based on his finding that Ms. Thorson’s condition has not improved
when in fact the evidence demonstrated that there had been improvement. As
stated above, Dr. Grover acknowledged that some aspects of his report were
not phrased properly.

[44]        
While I agree that some aspects of Dr. Grover’s evidence are
problematic, I am not convinced that his opinion should be entirely dismissed.
I do find the report of Dr. Cox, Ms. Thorson’s long term family
physician, to be of more assistance given his knowledge of her pre and post-accident
condition and his ability to monitor her status over an extended period of
time. I note that both doctors agree that Ms. Thorson suffered soft tissue
injuries to her neck and lower back and resulting headaches. Both find that her
injuries have impacted her personal, recreational and work life to a certain
degree, but her prognosis in the long term is good.

CREDIBILITY AND RELIABILITY OF EVIDENCE

[45]        
The Court must carefully assess the credibility and reliability of the
evidence pertaining to the accident in order to find the facts. This involves a
careful consideration of the trustworthiness of the witnesses’ testimony, based
on the veracity and sincerity of the witnesses and the accuracy of the evidence
they provide: Bradshaw v. Stenner, 2010 BCSC 1398 [Bradshaw],
aff’d 2012 BCCA 296; Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna].

[46]        
Applying these principles to the present case, I found both Ms. Thorson
and her husband Mr. Simard to be honest and credible witnesses. I accept
their evidence regarding the impact the injuries have had on their daily lives.

[47]        
Ms. Thorson was clear and direct and impressed me as an honest,
straightforward and determined woman. She acknowledged that she had headaches
prior to the accident brought on by various stresses in her life. Ms. Thorson
made no effort to exaggerate her symptoms. In fact, she acknowledged that there
has been improvement in her condition and she now views her symptoms as an
“inconvenience”. It is admirable that Ms. Thorson characterizes her lingering
symptoms in this fashion and is indicative of her resilience and determination
not to allow her injuries to dominate her future.

[48]        
Similarly, Mr. Simard testified in a straightforward manner and
presented as a caring and concerned husband. He acknowledged that there have
been changes to their lifestyle after the birth of their daughter, but their
activities are more restricted because of his wife’s ongoing pain symptoms. Mr. Simard
explained that while his wife’s condition has improved over the years it still
prevails and impacts on many aspects of their daily living.

CAUSATION

The Law

[49]        
The plaintiff must establish on a balance of probabilities that the
defendant’s negligence caused or materially contributed to an injury. The
defendant’s negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the range of de minimus. Causation need not
be determined by scientific precision:  Athey v. Leonati, [1996] 3
S.C.R. 458 [Athey] at paras. 13-17; Farrant v. Laktin,
2011 BCCA 336 at para. 8.

[50]        
In Mirsaeidi v. Coleman, 2014 BCSC 415, Harris J. further
outlines the principles of causation at para. 50:

The primary test for causation
asks: but-for the defendant’s negligence, would the plaintiff have suffered the
injury? The “but-for” test recognizes that compensation for negligent conduct
should only be made where a substantial connection between the injury and the
defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[51]        
In special circumstances, the “but for” test proves unworkable, and the
law has applied a “material contribution” test. As Chief Justice McLachlin
wrote in Clements v. Clements, 2012 SCC 32 at para. 46:

…Exceptionally, a plaintiff may
succeed by showing that the defendant’s conduct materially contributed to risk
of the plaintiff’s injury, where (a) the plaintiff has established that her
loss would not have occurred "but for" the negligence of two or more
tortfeasors, each possibly in fact responsible for the loss; and (b) the
plaintiff, through no fault of her own, is unable to show that any one of the
possible tortfeasors in fact was the necessary or "but for" cause of
her injury, because each can point to one another as the possible "but
for" cause of the injury, defeating a finding of causation on a balance of
probabilities against anyone.

[52]        
Causation must be established on a balance of probabilities before damages
are assessed. As McLachlin C.J.C. stated in Blackwater v. Plint, 2005
SCC 58 at para. 78:

Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway: [Athey].

[53]        
The most basic principle of tort law is that the plaintiff must be
placed in the position he or she would have been if not for the defendant’s
negligence, no better or worse. In accordance with the “thin skull rule”,
tortfeasors must take their victims as they find them, even if the plaintiff’s
injuries are more severe than they would be for a normal person. However, under
the “crumbling skull rule”, the defendant need not compensate the plaintiff for
any debilitating effects of a pre-existing condition, which the plaintiff would
have experienced anyway: Athey at paras. 32-35.

Discussion

[54]        
The defendant concedes that Ms. Thorson suffered minor/mild soft
tissue injuries as a result of the collision. However, they maintain that Ms. Thorson
had a pre-existing condition as a result of injuries she incurred from an
earlier car accident. They argue that since Ms. Thorson admitted to having
occasional headaches one or two times per month before the May 2013 accident,
which were treated by massage, any award in damages should be reduced to
account for her pre-existing condition.

[55]        
Ms. Thorson’s position is that the defendant caused the multiple
injuries she sustained. Prior to the accident, Ms. Thorson was a heathy,
active and physically fit 35-year-old woman who was enjoying a happy family
life and career. According to Mr. Thorson, there is no alternative
explanation or cause for her injuries but for the accident. Dr. Cox, who
has been Ms. Thorson’s family physician for over a decade, stated in his
report that Ms. Thorson had no pre-existing significant medical
conditions. Dr. Cox opined that her soft tissue injuries and headaches
arose solely from the May 2013 motor vehicle accident. Dr. Grover agreed
with Dr. Cox’s conclusion as to the cause of Ms. Thorson’s injuries.

[56]        
I am satisfied that Ms. Thorson has established on a balance of
probabilities that the injuries were caused by the motor vehicle collision on
May 7, 2013.

ASSESSMENT OF DAMAGES

Non-Pecuniary Damages

Law

[57]        
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.

[58]        
In Stapley v. Hejslet, 2006 BCCA 34 [Stapley], Kirkpatrick
J.A. outlined the factors to be considered when assessing non-pecuniary damages
at para. 46:

The inexhaustive list of common factors cited in [Boyd v.
Harris, 2004 BCCA 146] 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 BCCA 54).

[59]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[60]        
The correct approach to assessing injuries, which depend on subjective
reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) by the late Chief Justice McEachern (recently quoted with approval
in Edmondson v. Payer, 2012 BCCA 114 at para. 2). In referring to
an earlier decision, he said:

In
Butler v. Blaylock, [1981] B.C.J. No. 31, decided 7th October 1981,
Vancouver No. B781505, I referred to counsel’s argument that a defendant
is often at the mercy of a plaintiff in actions for damages for personal
injuries because complaints of pain cannot easily be disproved. I then said:

I
am not stating any new principle when I say that the court should be
exceedingly careful when there is little or no objective evidence of continuing
injury and when complaints of pain persist for long periods extending beyond
the normal or usual recovery.

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

Discussion

[61]        
Ms. Thorson submits that her injuries warrant an award for
non-pecuniary damages in the range of $50,000 to $60,000. Counsel cites Kelly
v. Kotz, 2014 BCSC 244 ($45,000); Espinoza v. Espinoza, 2015 BCSC
762 ($55,000); Hatch v. Kumar, 2013 BCSC 2049 ($50,000); Redl v.
Sellin, 2013 BCSC 581 ($55,000); Best v. Jerzyk, 2015 BCSC 1877
($60,000) and Blackman v. Dha, 2015 BCSC 698 ($80,000) in
support of a range of non-pecuniary loss of between $45,000 and $80,000.

[62]        
Counsel for the defendant contends that the award for this head of
damages should be in the range of $25,000 to $30,000. In support of this
submission, defendant’s counsel cites De Abreu v. Huang, 2013 BCSC 398
($25,000); Manson v. Kalar, 2011 BCSC 373 ($25,000); Mirsaeidi v.
Coleman, 2014 BCSC 415 ($25,000); Pond v. Bucsis, 2013 BCSC 2001 [Pond]
($21,000) and Rogalsky v. Harrett, 2014 BCSC 1255 [Rogalsky]
($35,000).

[63]        
I find the plaintiff’s cases above more factually similar to the case
before me. With the exception of one case (Mirsaeidi), cases cited by
counsel for the defendant did not refer to a plaintiff that maintained a highly
active lifestyle before the accident; therefore, they did not suffer the same
extent of non-pecuniary losses as Ms. Thorson. One of the cases cited by
defendant’s counsel (Pond) involved a plaintiff that did not follow her
treatment recommendations and in another one (Rogalsky) an adverse
inference against the credibility of the plaintiff was drawn; the case before
me involves no such circumstances.

[64]        
I have considered the impact of the injuries on Ms. Thorson’s
general well-being in coming to a decision on the appropriate award under this
category. I accept that Ms. Thorson will continue to experience some
periodic, mild pain in her neck and shoulders, which will often cause headaches.
Going forward, Ms. Thorson will have to deal with a pain condition she did
not have before. With respect to the impact on Ms. Thorson and her family,
I accept that her relationship with her husband has suffered due to her
irritability caused by her pain and the overall stress of the situation. Mr. Simard
testified that he knows on certain days he has to give his spouse her space
because he can tell she is in pain. Ms. Thorson acknowledged that she has
become more “on edge” with her spouse and her daughter since the accident.

[65]        
I accept that Ms. Thorson’s recreational activities have been
curtailed as a result of her injuries. Prior to the accident, Ms. Thorson
engaged in what can best be described as an aggressive and challenging fitness
regime, which included frequent, sometimes daily weight training and gym
activities, bootcamp sessions, hiking and yoga. Ms. Thorson’s dedication
to her fitness regime was not curtailed after the birth of her daughter other
than a reduction in the frequency of hikes with her husband. However, since the
accident, Ms. Thorson has reduced both the frequency and intensity of her
fitness routine to one, which is best described as a low impact, maintenance
program.

[66]        
Ms. Thorson has been able to continue performing the various
household chores she did before the accident although sometimes this is
difficult due to some discomfort.

[67]        
Despite the recurring neck pain and headaches Ms. Thorson has
continued to work full-time, perform some low impact recreational activities
and raise her daughter. She remains a strong and determined woman who has
adapted as best she can to the intermittent pain, which she considers as an
inconvenience in her life.

[68]        
Having reviewed the cases provided by both parties, I assess Ms. Thorson’s
non-pecuniary damages at $50,000.

Costs of Future Care

Law

[69]        
Ms. Thorson is entitled to compensation for the cost of future care
based on what is reasonably necessary to restore her to her pre-accident
condition insofar as that is possible. When full restoration cannot be
achieved, the court must strive to assure full compensation through the
provision of adequate future care. The award is to be based on what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical health: Milina v. Bartsch (1989), 49 B.C.L.R. (2d) 33 [Milina]; Williams
v. Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC 1104; Gignac
v. Rozylo, 2012 BCCA 351 at paras. 29-30.

[70]        
The test for determining the appropriate award under the heading of cost
of future care is an objective one based on medical evidence. For an award of
future care there must be a medical justification for the claim, and the claim
must be reasonable: Milina at para. 84.

[71]        
Future care costs are “justified” if they are both medically necessary
and likely to be incurred by the plaintiff. The award of damages is
speculative, and thus requires a prediction as to what will happen in the
future. If a plaintiff has not used a particular item or service in the past,
it may be inappropriate to include the cost of that service in a future care
award. However, if the evidence shows that previously rejected services will
not be rejected by the plaintiff in the future, he or she can recover for such
services: Izony v. Weidlich, 2006 BCSC 1315 at para. 74; O’Connell
v. Yung, 2012 BCCA 57 at paras. 55, 60, and 68-70.

[72]        
The extent, if any, to which a future care costs award should be
adjusted for contingencies depends on the specific care needs of the plaintiff.
In some cases, negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiff’s
condition or increased based on the prospect that additional care will be
required. Each case falls to be determined on its particular facts: Gilbert
v. Bottle, 2011 BCCA 144 at para. 253.

[73]        
An assessment of damages for cost of future care is not a precise
accounting exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC
9 at para. 21.

Conclusion

[74]        
Ms. Thorson submits that an award of $5,000 ought to be granted for
this head of damages. She submits that the cost of future care consists of 12
physiotherapy sessions per year at $55 per session plus $100 per year for over
the counter medication such as Tylenol.

[75]        
The defendant acknowledges that physiotherapy has been recommended by Dr. Cox,
but argues that $330 is the appropriate amount as those sessions should be
limited to once every four months for the next two years. The defendant arrives
at this submission by relying on Ms. Thorson’s past usage of
physiotherapy, namely, the fact that her last physiotherapy session was in the
fall of 2015 and before that it was February 2014.

[76]        
With respect to the cost of medications, the defendant argues there is
no merit in this claim as neither Dr. Cox nor Dr. Grover recommended
any medications. I agree with the defendant that neither doctor recommended
medications explicitly, however Dr. Cox’s report certainly supported Ms. Thorson
seeking relief through over-the-counter medications and Ms. Thorson
testified that she has found relief in and uses a variety of over-the-counter medications at her office and home in case
she needs some medication to deal with the pain and discomfort.

[77]        
I accept Dr. Cox’s recommendations that Ms. Thorson continue
with physiotherapy treatments for the next one to five years. Given the August
2015 prognosis that Ms. Thorson’s condition should improve within the next
five years, I am satisfied that she should be awarded the cost of monthly
physiotherapy treatments for the next four years in the amount of $3,000. Ms. Thorson’s
general good health and fitness will serve her well in her recovery and I trust
that four years as opposed to five years is plenty of time for her to overcome
the effects of the accident. This is also consistent with the general prognosis
by Dr. Cox. In addition, I will make some allowance for over-the-counter
pain medication for the next four years in the amount of $400.

[78]        
Accordingly, I award $3,400 for the cost of future care.

Special
Damages

Law

[79]        
It is well established that an injured person is entitled to recover the
reasonable out-of-pocket expenses he or she incurred as a result of an
accident. This is grounded in the fundamental governing principle that an
injured person is to be restored to the position he or she would have been in
had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281;
Milina at para. 78.

Conclusion

[80]        
Ms. Thorson submits that an award of $2,553.15 should be made based
on the cost for physiotherapy, massage, chiropractic sessions, active
rehabilitation sessions, pain medications and mileage.

[81]        
The defendant submits the award should be reduced given that Ms. Thorson
was attending massage therapy treatments prior to the accident. He argued it is
reasonable to assume that she would have continued with those treatments in the
absence of the accident. I do not agree. It is important to note that the
pre-accident massage treatments were not a medical treatment for an injury that
occurred. Rather, it was massage to relieve stress and make Ms. Thorson
feel better. The post-accident massage was one of several treatment options
recommended to Ms. Thorson to deal with her chronic pain.

[82]        
Accordingly, I find that Ms. Thorson is entitled to reimbursement
for her special damages in the amount of $2,553.15.

SUMMARY

[83]        
In summary, I award Ms. Thorson damages as follows:

·      
Non-pecuniary Damages – $50,000;

·      
Cost of Future Care – $3,400;

·      
Special Damages – $2,553.15;

·      
Total Damages
Award = $55,593.15

[84]        
If the parties are unable to agree on costs, they may speak to the
issue.

“The Honourable Madam
Justice Devlin”