IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160330

Docket: M123077

Registry:
Vancouver

Between:

Jaspreet Kaur
Nijjar

Plaintiff

And

Susan Marie Hill

Defendant

Docket: M133281

Registry:
Vancouver

Between:

Jaspreet Kaur
Nijjar

Plaintiff

And

Peter Henry
Giesbrecht

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
On September 3, 2010, a motor vehicle driven by the plaintiff Jaspreet
Nijjar was stopped at an intersection when struck from behind by a vehicle
driven by the defendant Susan Hill.  Ms. Hill has admitted that the
accident was caused by her negligence.

[2]            
On May 23, 2012, Ms. Nijjar was driving eastbound on 96^th
Avenue in Surrey when a vehicle driven by the defendant Peter Giesbrecht struck
a third vehicle which then collided with Ms. Nijjar’s vehicle.  Mr. Giesbrecht
has admitted that the collisions were caused by his negligence.

[3]            
Ms. Nijjar alleges that she suffered soft tissue injuries and
psychological injuries caused by one or both accidents; and seeks damages.  The
parties disagree about the severity, duration and impact of the accident
injuries and the appropriate quantum of damages to be awarded under each head
of damages.  The defendants also allege that the plaintiff failed to mitigate
her losses. Counsel for all parties agreed that the task of this Court is to
assess damages globally and that it is not necessary to apportion the loss
between the two accidents.

FACTS

[4]            
Ms. Nijjar was born in October 1984.  She was 25 years old when the
first accident happened; 27 at the time of the second accident; and 30 at time
of trial.  She grew up in India and completed high school there in 2004.  After
graduating from high school, she attended two years of post-secondary education. 
Ms. Nijjar was physically active in high school and college and
participated in a variety of team sports.

[5]            
In 2006, Ms. Nijjar immigrated to Canada and moved into the home of
her aunt.  Ms. Nijjar did not describe her family of origin, but there is
evidence that her father lives in India and she has a sister living in British
Columbia.  In November 2012, Ms. Nijjar married Harpal Benipal.  Ms. Nijjar
and Mr. Benipal have one child, born in August 2014.

PRE-ACCIDENT EMPLOYMENT
AND INCOME

[6]            
 Ms. Nijjar’s first job in Canada was working at a McDonald’s
restaurant.  She washed dishes, stocked shelves, cleaned floors, and helped
assemble food orders when the restaurant was busy.

[7]            
In 2007, Ms. Nijjar was paid $23,475 by McDonald’s.  She earned an
additional $17,450, reported as “net business income” working as a janitor at a
Superstore.  Her line 150 income for 2007 was $40,925.  Ms. Nijjar worked
as a cleaner under contract to a company referred to as “PICS”.  Ms. Nijjar
testified that she did cleaning jobs four or five hours a day, five to six days
a week.

[8]            
In 2008, Ms. Nijjar continued to work at McDonald’s and as a
cleaner.  She also worked as a cashier at a Chevron station.  In that year she
declared $19,042 in employment income and $22,360 net business income for line
150 income of $40,296.

[9]            
Ms. Nijjar testified that in 2009 she worked as a cashier at
Chevron and also worked at Sears Canada.  She worked as a cleaner for a company
that constructed new homes.  She also worked as a security guard for The
Invicta Group Inc. providing security services at a truck yard. In order to
work as a security guard Ms. Nijjar needed a licence.  She took courses
over a period of two months and passed an exam to obtain the licence.  In 2009,
she also took one day of training with a company called Contemporary Security
ULC, to prepare her to work in security at the 2010 Olympic Games.

[10]        
Ms. Nijjar reported earnings of $21,836 in 2009 and net business
income of $19,800, for a total line 150 income of $40,656.

[11]        
2010 is the year in which the first of the two accidents happened. From
January to March 2010, Ms. Nijjar worked at one of the Vancouver sites for
the Olympic Games as an employee of Contemporary Security.  She testified her
job involved scanning purses and back-packs.  She worked for Sears Canada.  She
worked for Synergy Building Maintenance Inc. as a janitor; and, she testified,
also did a small amount of work for PICS.  She declared employment income of
$39,069 and net business income of $3,000 for a line 150 total income of
$42,091 in 2010.

THE FIRST MOTOR VEHICLE ACCIDENT

[12]        
On September 3, 2010, Ms. Nijjar was driving her 2002 Pontiac
Sunfire on route to a corner store.  She had stopped at an intersection when
her vehicle was struck from behind.  She testified that the back of her head
struck the head-rest and she immediately felt pain in her head.  She and the
other driver exchanged insurance information after which Ms. Nijjar drove
home.  Ms. Nijjar’s vehicle was eventually repaired at a cost of about $1,300.

[13]        
Ms. Nijjar testified that she did not take time off her security
guard job following the accident, but that she did not work as a janitor in the
time between the accident and her departure on a trip to India in December
2010.

[14]        
Following the accident, Ms. Nijjar took time off from her job at
Sears.  She went back to work at Sears on October 17, 2010 and worked until
December 11, 2010, before leaving for India to visit her father, who was ill.  Ms. Nijjar
testified that she asked Sears to give her a leave of absence but the leave was
refused.  Ms. Nijjar’s supervisor told Ms. Nijjar she would have to
resign and reapply when she returned from India.  After returning from India in
early February 2011, Ms. Nijjar applied to work at Sears but was not re-hired.

[15]        
After returning from India early in February 2011, Ms. Nijjar
resumed working as a janitor and as a security guard and worked both jobs
without interruption until the second accident in May 2012.

MS. NIJJAR’S
DESCRIPTION OF HER INJURIES FROM THE FIRST ACCIDENT

[16]        
Ms. Nijjar testified that following the September 3, 2010 accident
she had neck pain, pain in her upper, middle and lower back; and almost constant
headaches.  She testified she had headache every day for the first four months,
lasting five to six hours each day.  She testified that in the first six months
of 2011 her headache improved somewhat, but that she still had headaches two to
three times a week lasting two to three hours.

[17]        
Ms. Nijjar testified that the pain in her neck was constant and
“severe” for the first four months following the accident.  She testified that
the pain in her upper back, middle back and lower back was constant and “severe”
every day post-accident in 2010 and every day in the first half of 2011.

[18]        
Ms. Nijjar testified that in the second half of 2011 her headaches
were “mild”, recurring two to three times a week for one to two hours each
time.  She testified she had “mild” neck pain two to three times a week if she
bent or lifted, played outdoors with her cousins, or played tennis.  She
testified that her upper and middle back caused mild pain one to two times a
week if she was bending or lifting.  She said her lower back pain remained
“severe” and recurred every day in the second half of 2011.

[19]        
Ms. Nijjar testified that in the first five months of 2012 − before the second motor
vehicle accident −
she continued to have pain in her neck, upper and mid-back and lower back, and
headaches.  She described her headaches as 50 to 80% improved, recurring
perhaps once a week and lasting one hour.  She had neck pain one to two times a
week for one to two hours.  Her upper back and mid-back were about 80% better,
with pain recurring about once a week for one hour.

[20]        
She testified that the pain in her lower back remained “severe” and
daily, with only 10 to 20% improvement from September 2010 until the second
accident in May 2012.

FACTS, CONTINUING

[21]        
Ms. Nijjar’s husband, Harpal Benipal, testified that he was born in
India and completed high school there.  He immigrated to Canada in September
2003.  Since 2009 he has worked as a taxi driver.  Neither Mr. Benipal nor
Ms. Nijjar testified about their relationship prior to marriage except
that Mr. Benipal said that in January 2012 they were making plans for
their wedding to take place in India later that year.  Mr. Benipal and Ms. Nijjar
flew to India together on October 1, 2012 in advance of their wedding.

[22]        
Although Mr. Benipal gave some “after” evidence about his
impressions of Ms. Nijjar’s physical condition after the May 23, 2012
accident, he did not give any evidence about her condition or activities before
the accident.

THE SECOND MOTOR VEHICLE ACCIDENT

[23]        
The second motor vehicle accident happened on May 23, 2012.  Ms. Nijjar
was driving eastbound on 96^th Avenue, returning home from work.  She
was driving a Honda Civic.  Her vehicle was struck on the driver’s side by
another vehicle, causing what she described as the “window side” air bag to
deploy.  She testified the inflated air bag struck the left side of her face
and her left arm.  She testified she hit her head on the vehicle head rest and
immediately experienced neck pain.  An ambulance arrived (Ms. Nijjar told Dr. Hershler
that the ambulance arrived “by chance”).  Ms. Nijjar was taken to hospital
for examination.  Ms. Nijjar believes that x-rays were taken.  Ms. Nijjar
was at the hospital for a couple of hours.  Mr. Benipal visited her
there.  A family member drove Ms. Nijjar home from the hospital.

[24]        
The damage to Ms. Nijjar’s Honda Civic exceeded the value of the
vehicle and she received a cash pay-out of approximately $11,000.

MS. NIJJAR’S
DESCRIPTION OF HER INJURIES FROM THE SECOND ACCIDENT

[25]        
Ms. Nijjar testified that the day after the May 23, 2012 accident
her entire body was painful, but especially her left ear, the left side of her
neck and jaw, and her left arm, likely due to impact from the air bag.  She
testified she felt a little confused and disoriented but the medical evidence
does not establish concussion or traumatic brain injury.

[26]        
Ms. Nijjar testified that the pain in her ear, face and jaw lasted
one to two months, or perhaps the jaw pain lasted three months.  She described
her neck pain as constant and “really sharp” for the rest of 2012 and the first
half of 2013.  She said that by the second half of 2013 she had daily neck pain
but described it as mild to moderate.

[27]        
According to her testimony, Ms. Nijjar’s neck pain actually
increased over time.  She said she had “severe” neck pain in 2014 and 2015 and
that it became worse after the birth of her child in August 2014.

[28]        
Ms. Nijjar testified that her left arm remained very stiff and
painful to the end of 2012.  She described constant and severe daily pain in
her upper, middle and lower back until the middle of 2013.  She testified that
in the last half of 2013 the upper and middle back pain recurred two to three
times a week if she was doing physical activity, but that she had no upper or
middle back pain otherwise; and that this continued through 2014.  She
testified that in 2015 the upper back pain recurred two to three times a week
when she was doing activities.

[29]        
Ms. Nijjar testified that her low back pain remained “severe” and
constant post-accident in 2012, 2013 and 2014.  She testified that in 2015 she
still had low back pain almost every day that was mild but became severe if she
did activities like bending, lifting, walking, or running.

[30]        
Ms. Nijjar testified that she had “really severe” headaches to the
end of 2012; that medication helped temporarily but that she had headaches
every day, all day.  Headaches varying between mild and severe also occurred
every day all day in the first six months of 2013, she testified; and in the
last half of 2013 she woke up every day with a headache that lasted five to six
hours.  She continued to have daily headaches lasting two to six hours all of
2014; and in 2015 had daily headaches lasting two to three hours.

[31]        
At trial, Ms. Nijjar described the severity of her symptoms and the
progress of her recovery quite differently from the way in which she had
earlier reported the pain to her family doctors and physiotherapist.   Ms. Nijjar
testified in cross-examination that she had told her doctor all of her
complaints on every visit.  In general, and with a few exceptions, the
descriptions given to the health care professionals indicated less significant
pain and faster and greater recovery.

[32]        
English is not Ms. Nijjar’s first language, but she demonstrated an
adequate ability to speak the language.  Ms. Nijjar also demonstrated that
she understood what “severe” means, because she used the term in comparison to
the terms “mild” and “moderate”.  Although in direct examination Ms. Nijjar
had described her neck and upper back pain as constant and severe in the second
half of 2010, in cross-examination she said her pain was only severe some of
the time by November 2010.

[33]        
The term “severe” is normally used to describe pain that is
incapacitating, perhaps requiring hospitalization and certainly requiring
treatment with prescription analgesics.  The evidence does not indicate Ms. Nijjar
experienced pain of that magnitude following either accident.

[34]        
 Ms. Nijjar’s description at trial of severe and constant pain is
also inconsistent with the evidence that she resumed working full-time or even
more than full-time within a short time after both accidents, including working
as a janitor.  In 2013, she continued to do some work while also attending full-time
college classes.  By February 2013 −
less than a full year after the second accident − her own assessment and that of her primary
family physician was that she was capable of performing all of the physical
duties associated with work as a health care assistant, including standing for
four hours at a time, bending, crouching, and lifting up to 50 pounds.

[35]        
The medical records indicate there were significant gaps between visits
and intervening visits during which no complaints about symptoms related to the
motor vehicle accidents are recorded.

[36]        
No Pharmacare record was put into evidence, but based on the receipts
for the purchase of prescription medications, Ms. Nijjar was able to
tolerate her symptoms without the use of prescription painkillers except for
short periods immediately post-accident.

[37]        
I am left with the impression that Ms. Nijjar exaggerated the
severity of her physical symptoms when testifying at trial and that the Court
must be cautious in assessing the weight to be given to her evidence.

[38]        
When asked by her counsel to describe her “emotional symptoms” following
the May 23, 2012 accident, Ms. Nijjar said she had “anxiety”, “mood
disorder”, “depression” and “panic attacks”.  She testified she began feeling
anxious in June 2012 and had one panic attack that lasted either one to two
hours or four to five hours, depending on which part of her direct examination
is referenced.  She testified that she had a second panic attack but could not
recall when it happened.

[39]        
Ms. Nijjar was not in a vehicle on either occasion and there is no
evidence that her anxiety attacks involved accident “flashbacks” or had any
other connection to the accidents.   She testified that the June 2012 panic
attack began while she was sleeping.  She felt short of breath and “… like I
was dying.”   Her aunt drove her to hospital.

[40]        
Ms. Nijjar could not recall when the second panic attack happened. 
She said it happened at night and that she was home alone.  She said she felt
like she was dying.  She called her sister, who told her to go for a walk.  She
went for a walk and felt better after two hours.  She said she had no other
panic attacks.

[41]        
There is no psychiatric opinion evidence providing a basis for the
conclusion that the panic attacks or anxiety Ms. Nijjar experienced are
causally related to the motor vehicle accidents.

[42]        
Ms. Nijjar testified that she began feeling depressed in January
2013 but in her testimony she did not connect the psychological symptoms to the
motor vehicle accident or any other specific event.  In January 2013, Ms. Nijjar
had only recently returned from being married in India.  She had moved out of
her aunt’s home and into a two-bedroom, one-bathroom suite that she shared with
her husband and his mother.  Ms. Nijjar was looking for employment, having
learned the security guard position she had held before she went to India was
no longer available to her.

[43]        
Ms. Nijjar testified that in January 2013 she sometimes felt sad
and other times happy and that her mood could change in seconds but at other
times she was sad for entire days.   She testified she felt like she wanted to
fight with someone.   She said she began taking anti-depressant medication at
that time.

[44]        
The clinical notes of Dr. Manchanda, Ms. Nijjar’s family
doctor, indicate that Ms. Nijjar told him on December 18, 2012 that she
had been to India to be married; and that she was having low mood, crying, and
feeling apathetic and unmotivated.  Dr. Manchanda prescribed Cipralex, an
anti-depressant.

[45]        
Ms. Nijjar saw Dr. Manchanda again on January 9, 2013 and on
that date reported that she believed she was pregnant.  Ms. Nijjar was
seen by one of Dr. Manchanda’s colleagues −
Dr. Peyvandi −
on January 18, 2013.  She told Dr. Peyvandi she had had a menstrual period
the previous week (so was not pregnant).  She reported having had a panic
attack.  Dr. Peyvandi noted that Ms. Nijjar had recently been given a
prescription for Cipralex and advised Ms. Nijjar to take the medication.

[46]        
There are no receipts or other records indicating that Ms. Nijjar
purchased Cipralex in 2013 but notes in Dr. Manchanda’s clinical records
indicate Ms. Nijjar reported to Dr. Manchanda on January 22, 2013
that she had started taking Cipralex, “to good effect”, and that he increased
the dosage on February 5, 2013.  A note made February 28, 2013 indicates
“Anxiety is fully better”.  A note on May 5 indicates that Ms. Nijjar’s
mood “…is stable on Cipralex but pt. wishes to stop her Cipralex”.  The note
indicates that Dr. Manchanda recommended that she continue to take
Cipralex.

[47]        
Ms. Nijjar testified that she took anti-depressant medication until
October 2013 when she began attempting to become pregnant.  There is a clinical
note dated October 22, 2013 indicating “Mood is good.”  Ms. Nijjar
testified that her low mood did not return in 2014 or 2015.

POST ACCIDENT EMPLOYMENT
AND INCOME

[48]        
I noted previously that Ms. Nijjar travelled to India in December
2010, three months after the September 3, 2010 accident; and stayed there until
February 4, 2011.  Despite only working eleven months in 2011, Ms. Nijjar
earned more in 2011 −
the first year after the September 3, 2010 accident − than she had earned in each of the several
years before the accident.

[49]        
In 2011, Ms. Nijjar had employment income of $32,877 and net
business income of $12,000 for a total line 150 income of $44,877.  Most of the
employment income came from work as a security guard for a company called
Securitas Canada Limited.  She also did janitorial work for Assured Building
Maintenance Ltd. and for AR Building Maintenance Ltd.

[50]        
In 2012, the year in which the second accident happened, Ms. Nijjar
earned only slightly less than she had in 2011 −
$26,511 from employment and $15,500 net business income − from janitorial work − for total income of
$43,470 − but
earned that amount despite the fact that she was in India from October 1 to
December 12, 2012.

[51]        
Ms. Nijjar testified at trial that she did not work as a janitor in
2012 after the accident on May 23, but I consider that testimony to be
improbable.  Ms. Nijjar actually earned more income from janitorial work
in 2012 than she had earned working as a janitor for eleven months in 2011. 
She testified in cross-examination that she earned between $1,400 and $1,500 a
month from contract work as a janitor.  If that testimony is accurate, Ms. Nijjar
could not possibly have earned as much as $15,500 in less than five full months
prior to the May 23, 2012 accident.  Ms. Nijjar’s testimony at trial was
also inconsistent with evidence she gave on examination for discovery.  On
discovery, she testified that she stopped working as a janitor for only one or
two months after the 2012 accident.

[52]        
I conclude that it is more probable than not that Ms. Nijjar did
return to work as a janitor a couple of months after the May 23, 2012 accident.

[53]        
A Statement of Employment Insurance benefits produced as part of her
2012 tax return indicates Ms. Nijjar received employment insurance
benefits of only $1,293.  Ms. Nijjar testified she took six weeks off her
security guard job with Securitas after the accident and was paid employment
insurance during that time.  In evidence is a note written by Dr. R.
Manchanda, Ms. Nijjar’s family doctor, on June 10, 2012 advising she
should be off work for the month of June 2012, but could return to work “full
duties” and “full time” on July 1.

[54]        
Ms. Nijjar testified that she remained an employee of Securitas
until she resigned in June 2013, but she had not worked any shifts for
Securitas after September 2012.  In September 2012, Securitas lost its contract
to Guardsmark Canada Co. and Ms. Nijjar started working for Guardsmark
doing the same job she had done for Securitas.  She stopped working for
Guardsmark when she left for India for her wedding.

[55]        
 Ms. Nijjar’s income did drop significantly in 2013, the first full
year after the May 2012 accident.  Her income in 2013 was only $10,492.  Of
that sum, $5,605 was employment income from work as a security guard.

[56]        
Having reviewed the relevant evidence, however, I conclude it is more
probable than not that the drop in income in 2013 was due to causes unrelated
to the negligence of the defendants.

[57]        
 Ms. Nijjar testified that upon her return from India in December
2012 she called Guardsmark looking for work but her previous assignment was no
longer available and she was offered work as a security guard working nights at
a truck yard.  She worked some shifts at the truck yard but thought this job
was too risky for a woman, and Guardsmark had no other work available for her. 
She called Securitas but the only jobs on offer were work as a bank security
guard and Ms. Nijjar declined to even attempt that job.  No other work was
available and Ms. Nijjar eventually resigned from Securitas in June 2013. 
She applied for jobs with other security companies but did not get any work.

[58]        
Ms. Nijjar testified that she had financial problems and was
feeling depressed.  She decided to go back to school to retrain as a health
care assistant.

[59]        
Ms. Nijjar did do some janitorial work in 2013.  She earned $6,000
from her work with AR Building Maintenance Ltd., in 2013 which she reported as
business income.  The balance of her employment earnings came from work she did
after completing her health care assistant training.  She worked as a resident
care aide for Pro Vita Care Management Inc., Bayshore Home Support Ltd.,
Brookswood Court Specialized Adult Care Facility Ltd., and Murrayville Manor
Specialized Adult Care Facility Ltd.

[60]        
Ms. Nijjar first applied to Sprott Shaw College in February 2013
with the intention of training to work as a medical office technician.  She
passed the required test for facility in the English language, but decided she
did not type fast enough or speak English well enough to work as a medical
technician.  Instead, she enrolled in the Health Care Assistant training
program.  She agreed in cross-examination that she chose this course because it
was one of the shortest courses available.  She paid $10,000 tuition.   She
started courses at Sprott Shaw College in March 2013 and completed her training
on September 27, 2013.

[61]        
Ms. Nijjar agreed in cross-examination that she checked out the
physical requirements for work as a health care assistant before enrolling in
the course and that she was aware that the work involved was described by the
College as:

…constant
physical activity, including bending, lifting, pulling, pushing, stretching and
kneeling, as well as transferring equipment.

[62]        
As one of the requirements for enrollment in the Health Care Assistant
course, Ms. Nijjar was required to sign a “Medical Waiver”.  She signed
the waiver on February 27, 2013 and in it confirmed that:

…to
the best of my knowledge, I do not have any medical condition that would hinder
me in meeting the physical, mental and emotional requirements of the clinical
or practicum portion of the program indicated above, as this could negatively
affect my employment opportunities in the field.

[63]        
Ms. Nijjar testified that she felt confident that she could do the
job.

[64]        
As a further condition of acceptance into the Health Care Assistant
program at Sprott Shaw College, Ms. Nijjar was required to submit a
“Physician’s Waiver” certifying that she was:

…physically,
mentally and emotionally capable of performing the duties of the program…

[65]        
The duties were described on the waiver as I have set them out in paragraph
61 of these Reasons.  Dr. Manchanda signed the Physician’s Waiver on
February 28, 2013.

[66]        
Classes were held at the college and lasted four to five hours a day,
Monday to Friday.  The program included four to five months of classes and two
one-month practicums.  Ms. Nijjar did one of her practica at Kinsman
Lodge, a 140-patient long term care facility for elderly persons.  Ms. Nijjar
recalled having done her practicum at Kinsman Lodge in July or August 2013 and
that she was at that facility for five weeks.  Her second practicum was at a
small facility in Coquitlam −
she could not recall the name −
where she was placed for three weeks.

[67]        
After graduating from the Health Care Assistant program at the end of
September, Ms. Nijjar applied for care aide jobs and started working as a
casual employee at Brookswood Court in October 2013.

[68]        
As a prerequisite for working at Brookswood Court, Ms. Nijjar was
required to obtain a “Physician’s Letter of Health”.  The letter specifies the
“physical and cognitive requirements an employee needs to do in order to be
able to perform…” the position of resident care aide.  Dr. Manchanda
completed this form and signed it on November 17, 2013.  He confirmed that in
his opinion and to the best of his knowledge, Ms. Nijjar was physically
and cognitively capable of performing the job duties.  He specifically checked
off the “yes” box beside the following physical abilities:

·      
stand for a minimum of 4
consecutive hours

·      
walk for  minimum of 4 consecutive
hours

·      
sit

·      
squat/crouch

·      
twist

·      
bend

·      
push/pull – below shoulder level a
minimum of 20 lbs

·      
reach/stretch – above/below
shoulder level

·      
lift to a maximum of 50 lbs

[69]        
On the Letter of Health, Dr. Manchanda was asked to describe the
nature of any illness or injury that Ms. Nijjar had.  He wrote “some pain
in neck and low back”, but reiterated that in his medical opinion, Ms. Nijjar
was able to perform the full scope of her normal duties as outlined in the job
description.  There was a question on the form stating “If the employee is
unable to perform the full scope of her normal duties, please explain why and
provide a detailed description of the restrictions.”  Dr. Manchanda left
this area blank.

[70]        
Dr. Manchanda completed an identical form on behalf of Ms. Nijjar,
also signed by him on November 17, 2013, for the employer Pro Vita.

[71]        
Ms. Nijjar testified that as a casual resident care aide at
Brookswood she was not getting enough work, so in November 2013 Ms. Nijjar
she took a second casual on-call job at Kinsman Lodge and continued to work
there until the end of May 2014. Ms. Nijjar also took a permanent
part-time position with Bayshore Home Support, which involved providing care to
clients in their homes.  Her work with Bayshore clients included getting them
ready for bed, assisted with dressing, and assisting with bathing.  Ms. Nijjar
told Dr. Hershler she sometimes did housecleaning and meal preparation for
clients.  Sometimes she simply offered verbal encouragement and support.

[72]        
Ms. Nijjar was pregnant in 2014 and in May 2014 she decided to stop
working.  Dr. Manchanda wrote a note indicating she should be off work.  Ms. Nijjar
told occupational therapist Paul Pakulak that she stopped working in June 2014
“… due to complications with her pregnancy”.  She had a child in August 2014.

[73]        
Ms. Nijjar was assessed by Mr. Pakulak on March 10, 2015. 
According to his report, she told him she would be returning to work as a care
aide in August 2015 and would prefer to return to work with Bayshore Home
Support because she found it less physically demanding.  Ms. Nijjar was
assessed by physiatrist Dr. Cecil Hershler on March 17, 2015 for the
purposes of a medical/legal report.  Ms. Nijjar told Dr. Hershler
that her maternity leave would terminate at the end of July 2015 and that she
intended to apply to work for Bayshore Home Support.  She was assessed by
orthopaedic surgeon Dr. John Arthur on March 26, 2015.  According to his
report Ms. Nijjar told Dr. Arthur she intended to return to work as a
care aide in May 2015.  She testified at trial that she was still on maternity
leave.

THE MEDICAL EVIDENCE

[74]        
I have already referred to the documents completed by Dr. Manchanda
in 2014 providing his views about Ms. Nijjar’s capacity to train and work
as a care aide.

[75]        
Dr. Manchanda testified at trial and his clinical records are also
in evidence.  He was not tendered as an expert opinion witness.

[76]        
Dr. Manchanda had only recently qualified as a doctor when Ms. Nijjar
became his patient, having qualified to practice in Ontario in 2003 and in
British Columbia in January 2004.   There are no pre-accident medical records
in evidence as Ms. Nijjar only became a patient of Dr. Manchanda’s
clinic on September 4, 2010 −
the day after the first accident.

[77]        
On her first two visits to Dr. Manchanda’s clinic Ms. Nijjar
saw doctors other than Dr. Manchanda.  Dr. Manchanda first met with Ms. Nijjar
on September 9, 2010.  He found reduced range of motion in her neck and back;
with tenderness in her neck, upper back and lumbar area.  He diagnosed soft
tissue injury, prescribed a muscle relaxant and an analgesic, and recommended
physiotherapy.

[78]        
Dr. Manchanda saw Ms. Nijjar again on September 14 but did not
examine her on that visit.  He recommended that she not work at the Sears
warehouse for a month but should continue to work as a security guard.

[79]        
On October 6, 2010, Dr. Manchanda recorded that Ms. Nijjar’s
neck and low back were improving slowly with physiotherapy.  He found normal
range of motion in her neck and back, with some tenderness in her neck, right
trapezius, and lumbar area.  He recommended that she return to work part-time
at Sears and continue full-time as a security guard.

[80]        
On November 12, 2010, Dr. Manchanda recorded that Ms. Nijjar’s
neck and upper back pain was about 70% better.  Ms. Nijjar told him that
she was still unable to work at a computer for more than one hour at a time.  Ms. Nijjar
had been having physiotherapy.  Dr. Manchanda recommended that she have 12
more treatments.  He testified in cross-examination that he believed additional
physiotherapy treatments would assist Ms. Nijjar’s recovery.

[81]        
Physiotherapy records from Optimal Recovery Physiotherapy Clinic
indicate that Ms. Nijjar was assessed on September 11, 2010 and had 15
physiotherapy treatments between that date and November 12, 2010.   Ms. Nijjar
did not resume treatment after November 12, 2010 despite Dr. Manchanda’s
recommendation that she have 12 additional treatments.

[82]        
Ms. Nijjar testified she did not think the physiotherapy was
effective, but the physiotherapy records suggest otherwise.  On September 20,
2010 the physiotherapist recorded “…overall 20% better”.  On October 4, 2010
the assessment was “…overall 40 – 45% better”.  On November 12, 2010 the
assessment was “lower back 85% better, neck 70 – 75% better.

[83]        
Ms. Nijjar did not see Dr. Manchanda between November 12, 2010
and March 4, 2011.  For part of that time Ms. Nijjar was in India.  On
March 5 Dr. Manchanda noted “…overall a lot better now”.  He wrote a CL-19
report for the defendants’ insurer in which he stated:

…right
upper back pain worse with sitting for greater than 30 minutes.  All other
pains have resolved.

[84]        
Ms. Nijjar reported she was still having pain in her upper back and
neck but the notes do not indicate she was having low back pain.  Dr. Manchanda
recommended that Ms. Nijjar have massage therapy, or lidocaine injections,
or participate in an active rehabilitation program to address the upper back
and neck pain.

[85]        
Dr. Manchanda agreed in cross-examination, and his clinical records
indicate, that he recommended to Ms. Nijjar that she participate in an
active rehabilitation program on numerous occasions but at time of trial Ms. Nijjar
had not yet enrolled in an active rehabilitation program.

[86]        
After March 2011, Dr. Manchanda did not see Ms. Nijjar about
symptoms of neck or back pain until April 30, 2012 although she saw him in February
and March 2012 about unrelated health concerns.  Dr. Manchanda agreed in
cross-examination that on the three intervening visits, Ms. Nijjar did not
complain about any symptoms related to the September 3, 2010 motor vehicle
accident.  Dr. Manchanda said that if she had done, he would have been
very careful to make a note of her complaints.

[87]        
Dr. Manchanda testified that he asked Ms. Nijjar to come to
the clinic on April 30, 2012 because he had been asked to provide the
defendants’ insurer with a report −
a Form CL-19.  During the visit on April 30, 2012, Dr. Manchanda also
treated Ms. Nijjar for a ganglion cyst on her wrist.

[88]        
On the CL-19 completed by Dr. Manchanda on April 30, 2012, he noted
that she was about 70% better but needed an active rehabilitation program
consisting of 12 to 24 visits, and a gym pass.

[89]        
The second accident happened on May 23, 2012.  Ms. Nijjar was seen
by one of Dr. Manchanda’s colleagues on May 24, 2012.  Dr. Aziz noted
muscle spasm in the left trapezius muscle, sore neck on the left side and sore
left shoulder.  He recommended that Ms. Nijjar take over-the-counter Robaxacet.

[90]        
Ms. Nijjar returned to the clinic on May 26 and May 27, complaining
of pain on the left side of her head, upper back, arm and lower back.  Dr. Manchanda
found stiffness and restricted motion in the neck and left shoulder and noted
that Ms. Nijjar was “…in a lot of pain”.  Dr. Manchanda noted that Ms. Nijjar
was “demanding” a CT scan and he referred her for an x-ray of the cervical
spine and left shoulder.  He prescribed Tylenol #3 and Flexoril and recommended
physiotherapy.  He also recommended that Ms. Nijjar not return to work for
two weeks.

[91]        
Ms. Nijjar was seen again on May 27, complaining of pain in her
neck and low back.  Dr. Manchanda found there were no abnormal
neurological signs and diagnosed soft tissue tenderness.  Dr. Manchanda
noted that Ms. Nijjar was “demanding” to have an MRI.  He referred her for
a “private” MRI of the cervical spine, lumbar spine, and sacroiliac joints.

[92]        
Ms. Nijjar went to physiotherapy on May 30, 2012.  She had four
physiotherapy treatments −
the last on June 4, 2012, and then discontinued physiotherapy.

[93]        
Ms. Nijjar had an MRI of the lumbar spine, sacroiliac joints and
cervical spine on June 8, 2012.  The MRI showed normal alignment of the lumbar
and cervical spine, “unremarkable” SI joints; and well-preserved disc heights
with no significant disc bulges or protrusions.

[94]        
The cervical MRI revealed some straightening or the normal cervical
lordotic curve which, the radiologist wrote: “…suggests that there may well be
a degree of muscle spasm”.  The MRI also revealed a small right paracentral
disc protrusion and annular tear at the C5/6 level.  The disc protrusion was
not compromising any nerves.

[95]        
 Dr. Arthur, the orthopaedic surgeon who gave expert opinion
evidence as part of the defendants’ case testified that in his opinion it is
probable that the disc injury was caused by the May 23, 2012 accident.  The
plaintiff’s expert, Dr. Hershler, is of the same view.  I conclude it is
more probable than not that the disc protrusion was caused by the May 23, 2012
accident.

[96]        
The MRI indicated that the disc protrusion was not pressing on any
nerves.    Dr. Manchanda agreed in cross-examination that from the outset
of his treatment of Ms. Nijjar and throughout, she displayed no abnormal
neurological signs.

[97]        
On June 19, 2012, Ms. Nijjar went to North Surrey Massage Therapy
Clinic.  She had eight massage therapy treatments, the last on August 14, 2012.

[98]        
Dr. Manchanda saw Ms. Nijjar on June 2, 2012.  No examination
was done.  Ms. Nijjar reported she was unable to work because “too much
pain”.  Dr. Manchanda recommended she continue physiotherapy.  As stated
earlier, Ms. Nijjar discontinued physiotherapy after June 4, 2012.

[99]        
Dr. Manchanda saw Ms. Nijjar on June 5, 2012.  She reported
that she had gone for an MRI earlier that day but had a panic attack and ran
out.  Ms. Nijjar reported she was having anxiety and panic at home and at
work for 30 to 60 minutes, six days a week.  Ms. Nijjar did not confirm
the accuracy of this report when testifying at trial.  She said she had had two
panic attacks. Dr. Manchanda prescribed Ativan.  He offered to prescribe
an anti-depressant medication but Ms. Nijjar declined.

[100]     On June
10, 2012, Ms. Nijjar reported pain was persisting in her neck, upper back
and low back, and in her right leg.  Dr. Manchanda recommended that she be
off work until July 1.

[101]     On June
13, 2012, Ms. Nijjar reported that her pain was “…significant and often
unbearable” in her neck and upper back.  She reported that physiotherapy did
not help.  Dr. Manchanda gave Ms. Nijjar six injections of lidocaine
in various locations in her upper back and upper trapezius.

[102]     Ms. Nijjar
reported on June 23, 2012 that the injections had helped and she was having
less pain.  She was not working.  Dr. Manchanda recommended that she
return to full-time work on July 3, 2012, continue with massage therapy, and
participate in an active rehabilitation program.

[103]     On June 25,
Ms. Nijjar reported that her anxiety was a lot better.  Dr. Manchanda
discussed prescribing an SSRI anti-depressant for Ms. Nijjar but she again
declined.  Dr. Manchanda noted in his clinical record that he would not
prescribe more Ativan unless Ms. Nijjar was willing to start taking an
anti-depressant.

[104]     On July 3,
2012, Ms. Nijjar reported she had been working full-time for two days. 
She said she had increased pain in her low back on the left side.  Dr. Manchanda
assessed range of motion in Ms. Nijjar’s neck as normal with some pain;
and that she had tender trapezius muscles.  He recommended that she continue to
work full-time.

[105]     In July
2012, Ms. Nijjar began seeing a chiropractor.  Ms. Nijjar had 14
chiropractic treatments, with the last treatment on September 13, 2012   On
August 23, 2012, Ms. Nijjar told the chiropractor she had been feeling
better and had gone on a trip to Portland, Oregon, but found the driving caused
increased neck pain.

[106]     On August
9, 2012, Ms. Nijjar reported to Dr. Manchanda that her low back was
better although not fully recovered; but her neck pain persisted and she was
having headaches.  This is the first report of headache noted in the clinical
records after the second accident.  Dr. Manchanda again recommended that Ms. Nijjar
go to an active rehabilitation program.

[107]     As related
earlier in these Reasons, Ms. Nijjar went to India for about 10 weeks in
the late fall of 2012.  Ms. Nijjar testified that she had physiotherapy in
India and her claim for special damages includes a sum for twenty visits to
Ramaa Physiotherapy Clinic.

[108]     After the
August 9 visit, Ms. Nijjar did not return to see Dr. Manchanda until
December 18, 2012.  This visit appears to have been a counselling session.  No
physical examination took place and there is no reference to symptoms caused by
the accident.  Ms. Nijjar told Dr. Manchanda she had been to India
and had got married there.  She said her husband was a good man and there were
no family problems.  However she was crying during the appointment.  She said
she had no motivation and no energy, had low mood and felt apathetic.  Dr. Manchanda
prescribed an anti-depressant.

[109]     On a
January 9, 2013 visit, there was no discussion about the accident symptoms but Ms. Nijjar
reported that she thought she was pregnant.

[110]     Ms. Nijjar
saw one of Dr. Manchanda’s colleagues on January 18, 2013. Ms. Nijjar
reported that she had had a menstrual period starting January 9, 2013
(indicating that she was not pregnant).  She reported having had a headache on
the morning of the appointment.  She said she felt anxious.  Dr. Peyvandi
thought Ms. Nijjar was having a panic attack and told Ms. Nijjar to
take the medications that had been prescribed for her.

[111]     On January
22, 2013, there was no discussion about physical symptoms but Ms. Nijjar
reported feeling even more anxious and having sleep disturbances caused by
anxiety.  Her medication was changed and on January 25, 2013 she reported her
mood had improved.  On February 5, 2013, Ms. Nijjar reported that her mood
had been “great” for the first week after she started taking the new
medication, but she was feeling anxious again.

[112]     Symptoms
of anxiety were discussed again at a visit in early February.  I note that the
clinical records do not indicate that any of physicians Ms. Nijjar
consulted drew any connection between the accident injuries and the reported
symptoms of anxiety and depression.

[113]     On
February 8, Dr. Manchanda again recommended that Ms. Nijjar
participate in an active rehabilitation program.  Ms. Nijjar told the
doctor she was looking for work and he encouraged her to return to work.

[114]     On
February 28, 2013, Ms. Nijjar reported that although pain persisted in her
neck and low back, over all she was 80% recovered from her accident injuries.  Dr. Manchanda’s
objective assessment confirmed that estimate.  He found pain free and full
range of motion in Ms. Nijjar’s neck and shoulder; and only mild
tenderness in the upper trapezius and lumbar muscles.  Dr. Manchanda told Ms. Nijjar
he thought she was fit to attend training to become a health care aide.  I have
already referred to the medical waiver that Dr. Manchanda completed for Ms. Nijjar.

[115]     In March
and in May visits, Dr. Manchanda primarily addressed Ms. Nijjar’s
symptoms of anxiety and depression, which appeared to have improved once she
became a full-time student.  Ms. Nijjar wanted to stop taking the
prescribed anti-depressant but Dr. Manchanda told her she should
continue.  Ms. Nijjar reported pain in her neck and low back that became
worse with sitting in classes; and she said she was having daily headaches.  Dr. Manchanda
found full range of motion but some pain and muscle tenderness.  He recommended
massage therapy and again recommended an active rehabilitation program.  He
encouraged Ms. Nijjar to continue with full-time studies.

[116]     On June
24, 2013, Ms. Nijjar reported that she had gone to a hospital emergency
room on June 14, 2013 with headache and vomiting.  Dr. Manchanda diagnosed
migraine headache.  He assessed Ms. Nijjar’s depression as “significantly
better” and attributed the improvement to the anti-depressant she was taking. 
I am unable to conclude that the episode of headache and vomiting on June 24,
2013 is related to the accident injuries.  The headache was diagnosed as
migraine rather than cervicogenic.

[117]     Between
February 2013 and October 2013, there were no visits to Dr. Manchanda
relating to the accident symptoms, although there were visits in relation to
other medical concerns.  On October 22, 2013, Ms. Nijjar told her doctor
that she was still having pain and stiffness in her low back and neck, worse
with sitting, but improving as the day went along.  She told Dr. Manchanda
she was not doing any exercise or physiotherapy and was not taking any
medication for pain.

[118]     On
November 7, 2013, Ms. Nijjar reported that although she continued to have
residual pain in her neck and lower back she was 75 – 80% better.  Dr. Manchanda
observed that she was able to sit comfortably and had normal range of motion in
her spine with some muscle tenderness.  He recommended that she exercise
regularly.

[119]     On
November 17, 2013, Dr. Manchanda again met with Ms. Nijjar.  This was
the date on which he completed the forms I referred to earlier, in which he
stated his opinion that she was fit to perform all the physical requirements of
a job as a resident care aide.  He noted in Ms. Nijjar’s chart that he had
discussed the care aide job duties with Ms. Nijjar “in detail” and that
she said that although she continued to have some neck and upper back pain, she
“…felt quite confident…that she could stand and walk for 4 hours, push and pull
20 lbs. and lift up to 50 lbs”.

[120]     Ms. Nijjar
was not seen again in relation to the accident symptoms until February 1,
2014.  In the interim, a pregnancy was confirmed.  On January 6, 2014, one of Dr. Manchanda’s
colleagues discussed with Ms. Nijjar normal symptoms a pregnant woman
could experience in the first trimester.  Ms. Nijjar asked for a note
excusing her from work for 10 days, and Dr. Laifer wrote the note.

[121]     On
February 1, 2014, Ms. Nijjar complained of neck pain and headaches.  She
had full range of motion in her neck, but some discomfort and tightness in the
muscles of her neck, upper trapezius and mid back.

[122]     All
reported symptoms at subsequent visits were attributed to Ms. Nijjar’s
pregnancy until a visit in July 2014 where muscle tenderness but full range of
motion in neck and shoulder and upper back is recorded.  Ms. Nijjar also
reported headache.  She was then 37 weeks pregnant.

[123]     Ms. Nijjar’s
child was delivered by caesarean section in early August 2014.  All subsequent
visits dealt solely with gynecological issues until November 27, 2014 when Ms. Nijjar
reported episodic back pain that she attributed to the accident injuries.  Ms. Nijjar
asked Dr. Manchanda if she could start aerobic exercise at a gym.  Her C-section
incision had fully healed.  Dr. Manchanda approved gentle aerobic
exercise.

[124]     All
entries after November 27, 2014 dealt with gynecological issues.  Dr. Manchanda
confirmed when testifying at trial that Ms. Nijjar had not sought medical
attention in relation to symptoms of neck or back pain after November 27, 2014.

[125]     No
Pharmacare prescription medication record is in evidence.  Based on the summary
of Ms. Nijjar’s claim for special damages and the attached receipts, Ms. Nijjar
rarely took prescription pain medication.  She filled a prescription for an
anti-inflammatory and an analgesic in September 2010, but purchased no other
prescription medication after that until May of 2012.  Ms. Nijjar told her
physiotherapist on October 25, 2010 that she was taking pain medication only
occasionally.

[126]     Following
the second accident in May 2012, Ms. Nijjar purchased Tylenol #3, a
prescription analgesic, and over-the-counter Robaxacet.  In June and July of
2012, she purchased Lorazepam −
an anti-anxiety medication; Tramadol, and Celebrex, both of which I understand
to be anti-inflammatory medications that also provide pain relief.  On October
29, 2013, she purchased a muscle relaxant −
Cyclobenzaprine.

[127]     There are
no receipts for the purchase of Cipralex or any other anti-depressant
medication, although Dr. Hershler, a physiatrist who assessed Ms. Nijjar
on April 6, 2013, recorded that Ms. Nijjar was taking Cipralex at that
time, and Ms. Nijjar testified she took anti-depressant medication in
2013.  Dr. Hershler recorded that Ms. Nijjar was taking no other
medications in April 2013.  Ms. Nijjar testified that she was taking over
the counter Tylenol almost every day in 2013.

[128]     Ms. Nijjar
told Paul Pakulak, an occupational therapist who assessed her on March 10, 2015
that she was taking Extra Strength Tylenol twice a week.  She told Dr. Arthur,
an orthopaedic surgeon who assessed her on March 26, 2015 that she took over
the counter Tylenol for pain, but did so sparingly at that time because she was
breast-feeding.  At trial, Ms. Nijjar testified that in 2015 she was
taking regular Tylenol −
two tablets −
nearly every day.

[129]     I am
unable to reconcile the differing reports about Ms. Nijjar’s use of
analgesics.  Based on the available evidence I conclude, however, that the
symptoms Ms. Nijjar experienced after the first motor accident were
sufficiently mild and/or tolerable that she did not require prescription
medication to manage the symptoms except in the one or two months following the
accident.  She was able to tolerate the symptoms caused by the second accident
without the use of analgesic medication within a few months after the second
accident; except for one period of time in 2013 when she filled a prescription
for an anti-inflammatory/analgesic medication.   She took no prescription
medication in 2014 or 2015.

[130]     Ms. Nijjar
testified that she had taken over-the-counter pain medication from time to
time, in particular Tylenol, but did not keep any receipts.

THE EXPERT OPINION
EVIDENCE

[131]     Dr. Cecil
Hershler, a specialist in physical medicine and rehabilitation, assessed Ms. Nijjar
at the request of her counsel on April 6, 2013 and again on March 17, 2015.  He
wrote two reports, the first dated April 16, 2013 and an addendum dated March
18, 2015.  Dr. Hershler was cross-examined about his report at trial.

[132]     Dr. J.
S. Arthur, a specialist in orthopedic surgery, assessed Ms. Nijjar at the
request of defence counsel on March 26, 2015 and wrote a report dated April 7,
2015.  He also attended trial for cross-examination.

[133]     When Dr. Hershler
assessed Ms. Nijjar on April 6, 2013 she was in full-time attendance at
Sprott Shaw College.  Dr. Hershler’s opinion is that Ms. Nijjar’s
history and his physical findings are consistent with Ms. Nijjar having
suffered soft tissue and “discogenic” injuries to the muscles and ligaments of
her neck, trapezii, and lower back.  His opinion on prognosis in April 2013 was
that Ms. Nijjar would “…continue to be symptomatic for the foreseeable
future”.

[134]     There are
some facts or assumptions in Dr. Hershler’s reports that are not borne out
by the evidence at trial but I do not consider the discrepancies to be
significant or to cast doubt on Dr. Hershler’s opinions.  He understood,
for example, that Ms. Nijjar had been going to the gym regularly
immediately prior to the September 3, 2010 accident.  Ms. Nijjar testified
at trial that she had stopped going to the gym when she started working at Sears,
which was in November 2009, 10 months prior to the first accident.  According
to Dr. Hershler, Ms. Nijjar told him she did not recall any
significant movement of her body during the September 3, 2010 collision but she
testified at trial that the back of her head struck the head-rest.

[135]     Dr. Hershler
understood that Ms. Nijjar had, since the accidents, been doing
“strengthening” exercises at home.  At trial, Ms. Nijjar did testify that
she exercised at home every day but could give only vague and very limited
descriptions of the exercises she said she had been doing daily for several
years.  She conceded in cross-examination that the exercises she did were only
“stretching” exercises.

[136]     There were
also some minor inconsistencies in the history recorded by Dr. Arthur,
including the number of companies for which Ms. Nijjar had worked as a
care aide, but nothing significant.

[137]     Following
his first assessment of Ms. Nijjar, Dr. Hershler recommended that she
participate in an active exercise program particularly aimed at strengthening
her core muscles and improving her overall fitness.  Ms. Nijjar did not
act on this recommendation.

[138]     After his
second assessment of Ms. Nijjar in March 2015, Dr. Hershler opined
that although he saw some improvement in Ms. Nijjar’s symptoms − less numerous tender
points in the low back for example −
it is unlikely that Ms. Nijjar’s symptoms will fully resolve.  It is his
opinion that the headaches she reported are probably “…muscle contraction in
origin”.  He recommended that Ms. Nijjar use a prescription topical
anti-inflammatory/muscle relaxant while she is continuing to breast-feed.  He
also recommended that she exercise daily and meet with an exercise trainer once
a week for three months for advice; and then once a month for a further six months. 
In his opinion, Ms. Nijjar will find it easier to do lighter work that
does not involve prolonged standing or repetitive bending and lifting.

[139]     Ms. Nijjar
was assessed by Dr. Arthur on March 26, 2015, after she had seen Dr. Hershler
for the second time.   Dr. Arthur found no objective findings of injury
during his examination.  He accepted Ms. Nijjar’s subjective reports of
discomfort.  In his opinion, her symptoms are not disabling.

[140]     Dr. Arthur’s
opinion is that Ms. Nijjar’s prognosis is good and that he would expect to
see further resolution of her symptoms with the passage of time and an
appropriate exercise program.   He recommended that she participate in a six to
eight week active rehabilitation program.

[141]     At time of
trial, Ms. Nijjar had not participated in an active rehabilitation
program.  She testified at trial that she had only recently joined a gym.  She
said she joined in April 2015, the month before trial; had worked with a
trainer on two days; and had been going to the gym three to four times a week,
for about an hour each time.  At another point in her testimony, she said she
had been going to the gym two to three times a week.

[142]     Ms. Nijjar’s
counsel arranged for her to have a “functional capacity evaluation” carried out
by occupational therapist Paul Pakulak on March 10, 2015.  Ms. Nijjar told
Mr. Pakulak that in the previous 30 days she had sometimes been entirely
pain-free (zero out of ten on a one to ten pain scale) and that her highest
levels of pain had been two or three out of ten.

[143]     Mr. Pakulak
concluded that Ms. Nijjar demonstrated she has the physical capacity to
work as a full-time care aide −
a job classified in the National Occupancy Classification (“NOC”) as requiring
medium capacity, although in his opinion he thought she was “best suited” for
activity requiring no more than modified medium level strength.  He recommended
that if possible she avoid work requiring prolonged or repetitive positioning
of the neck and shoulders or repetitive forceful use of the arms and shoulders.
He also agreed that she has the capacity to work as a security guard and as a
janitor.  A security guard is classified as a “light” occupation and a janitor
as a “medium” occupation, although Mr. Pakulak pointed out there are heavy
industrial cleaning jobs that require greater strength and endurance.  There is
no evidence that Ms. Nijjar ever did heavy industrial cleaning jobs.

[144]     While I do
not entirely reject Mr. Pakulak’s opinions, some matters did emerge in
cross-examination that are relevant to the weight to be given to his opinions. 
Mr. Pakulak assumed that Ms. Nijjar had been doing strengthening
exercises at home −
he took that from Dr. Hershler’s report.  I have concluded that Ms. Nijjar
was not doing strengthening exercises at home.

[145]     Mr. Pakulak
used the “non-adjusted for learning norms” in assessing Ms. Nijjar’s
capacity to do some tasks, but agreed that you would normally use the “adjusted
for learning” norms for someone who had regularly done the type of work for
which she is being assessed.  He agreed that Ms. Nijjar demonstrated speed
well above the “adjusted for learning” norm on the vertical reaching capacity
testing.  She scored 132% of the adjusted norm.  He testified that even at the
end of the testing day she demonstrated pretty high levels of capacity and good
speed, but said her speed had declined and she reported increased symptoms and
that was this basis of his concern about her ability to sustain her
performance.  Even at the slower speed, however, she met the test for
competitive performance.

[146]     Mr. Pakulak
testified that Ms. Nijjar demonstrated above-average upper and lower body
strength; and normal grip strength.  He agreed in cross-examination that Ms. Nijjar
needs to engage in strength training in order to see improvement in her back
and core body strength.

ANALYSIS AND CONCLUSIONS

[147]     I conclude
that Ms. Nijjar suffered soft tissue injuries to the muscles of her neck
and back in both the first and the second accident.  The injuries caused by the
second accident were more significant and Ms. Nijjar experienced more
intensive pain and discomfort of longer duration following the second
accident.  She also had pain on the left side of her face, jaw and some left
arm pain caused by the inflation of the air bag on her left side and also
reported some hip pain.  These complaints resolved within a short time.  Her
most significant ongoing symptoms were pain in her neck and upper back; and in
her lower back.

[148]     I conclude
that Ms. Nijjar made a good recovery following the first accident,
although she continued to experience mild symptoms of discomfort, aggravated by
certain activities, up to the time of the second accident.   She did not miss
work as a security guard after the first accident.  She did take time off from
a job with Sears for a period of about two months and did not do any janitorial
work for a period of about three months.  She was sufficiently recovered to
travel to India three months after the accident and remained there for about
two months.  On her return from India she resumed working as a security guard
and doing janitorial work.  She attempted to return to the Sears job but was
not re-hired.

[149]     Ms. Nijjar
had more severe symptoms following the second accident and continued to be
symptomatic at time of trial.  Dr. Hershler opined that she suffered soft
tissue injuries involving both muscles and ligaments; and a right-sided small
cervical disc protrusion caused by the accident that may be contributing to her
symptoms; although this remains a matter of uncertainty.  Ms. Nijjar also
continues to experience periodic headache which Dr. Hershler believes is
cervicogenic.

[150]     The
symptoms Ms. Nijjar experienced were not severe enough to cause her to
seek relief from prescription medications for more than a couple of months
following the May 23, 2012 accident and at times she has not required the use
of even non-prescription medication to manage her symptoms.

[151]     I accept
that Ms. Nijjar continued to experience neck and lower back pain at time
of trial.  Although I have concluded that she exaggerated the severity of her
symptoms when testifying at trial, I accept that she continues to have symptoms
from time to time.  I accept that she will continue to experience symptoms in
future, although I accept Dr. Arthur’s opinion that there will be further
improvement with the passage of time; and that the symptoms will also lessen if
Ms. Nijjar engages in a regular exercise program designed to improve her
back and core body strength.  I conclude that the symptoms in future will
generally be mild and episodic and that Ms. Nijjar will be able to
alleviate most or all of the symptoms with use of non-prescription analgesic
medications.

[152]     I am not
persuaded that the panic attacks Ms. Nijjar experienced in 2012 or the
anxiety and depression she experienced in 2013 are causally related to the
motor vehicle accidents.  There is no psychiatric evidence to that effect.  Dr. Arthur
declined to comment as it is outside his area of expertise.  Dr. Hershler
commented in his report that Ms. Nijjar had had episodes of anxiety and
panic attacks since the second accident, but he did not draw a causal
connection between the accident or the accident injuries and the psychological
symptoms described.  The panic attacks happened when Ms. Nijjar was in her
home and did not, based on her description, include flash-backs or traumatic
memories relating to the accidents.  There is no evidence she experienced
anxiety while driving.

[153]     Ms. Nijjar
began experiencing depression early in 2013.  She had only recently returned
from an extended trip to India where she had married and had only recently
moved into a basement suite with her husband and mother-in-law.  She had
experienced an interruption in her employment and had financial concerns as a
result.  I am not persuaded that the depression has been shown to be causally
related to the accident injuries.

FAILURE TO MITIGATE

[154]     Ms. Nijjar
failed to follow repeated recommendations made by Dr. Manchanda that she
take part in an active rehabilitation program.  Ms. Nijjar did not provide
a satisfactory explanation for her failure to do so.  There is no evidence that
Ms. Nijjar  investigated the cost or availability of a rehabilitation
program.  There was a suggestion in her testimony that the insurer did not
offer to pay for such a program but there is no evidence that Ms. Nijjar
asked the defendants’ insurer, or her own insurer, to fund such a program or
that a request was denied.  Ms. Nijjar had employment income and her
husband is also employed.

[155]     Dr. Hershler
testified that it might have been sufficient for Ms. Nijjar to work with a
qualified trainer at a gym instead of attending an active rehabilitation
program, but Ms. Nijjar did not start going to a gym until April 2015, the
month prior to trial.  She gave no explanation for her prolonged delay in
starting an exercise program.  There was evidence that she had asked Dr. Manchanda
in November 2014 if she could start exercising (she had given birth to her
child in August 2014) and he told her it was safe for her to do so, but she did
not start an exercise program at that time.

[156]     Dr. Hershler,
Dr. Arthur and Mr. Pakulak were all of the opinion that an active
rehabilitation program −
focusing on improving back and core body strength − would be beneficial in relieving symptoms
and increasing Ms. Nijjar’s capacity to engage in activities.  Dr. Manchanda
did not testify as an expert opinion witness, but he did testify that he
repeatedly recommended an active rehabilitation program because he believed it
would help Ms. Nijjar to recover from her injuries and reduce her
symptoms.

[157]     In my
view, this evidence indicates that it is likely that Ms. Nijjar would have
experienced less pain and discomfort if she had followed the recommendations of
her doctors, in particular, Dr. Manchanda.  I am not persuaded that she
would have made a full recovery and been entirely symptom-free at time of trial,
but I am of the view that she would have recovered more fully and more quickly
had she participated in an active rehabilitation program.

[158]     I am not
persuaded that Ms. Nijjar would have returned to full employment any more
quickly than she did; or that she would not have experienced any diminishment
of the capacity to earn income in future had she followed Dr. Manchanda’s
advice, but I am of the view that her failure to mitigate should be taken into
account in the assessment of non-pecuniary damages.  Ms. Nijjar’s symptoms
would have been alleviated, I conclude, had she regained better physical
conditioning at an earlier date.

[159]     I conclude
that the defendants have failed to prove that Ms. Nijjar’s pecuniary
damages would have been less had she participated in an active rehabilitation
program.

DAMAGES

SPECIAL DAMAGES

[160]     Ms. Nijjar
is seeking an award of $2,809.34. The most significant charges for which there
are receipts in evidence are for physiotherapy treatment in 2010 and 2012;  and
massage therapy treatments in 2012.  Ms. Nijjar has also included a claim
for $1,000 described as “non-prescription medications and transportation
expenses” and a claim for $300 for the deductible paid to repair her vehicle in
September 2010.  The transportation expenses are not particularized and no
explanation was given for the failure to retain and present receipts for the
non-prescription medications.  I accept, however, that expenses of this nature
were probably incurred and that $1,000 is a reasonable estimate.  I award
special damages of $2,809.

[161]     I note
that this sum does not include the cost of the anti-anxiety medication
Lorazepam.  Ms. Nijjar has already been reimbursed for that expense, possibly
as a Part 7 benefit  In any event, I have concluded that the anxiety was not
causally related to the accident injuries.

PAST LOSS
OF INCOME OR THE CAPACITY TO EARN INCOME

[162]     Ms. Nijjar
is seeking an award for past income loss of $56,000, before statutory
deductions.  The defendants submit that an award should be made of $4,482.

[163]     The
parties are agreed that an award should be made for loss of Sears’ employment
income for the period September 3 to October 17, 2010 but they disagree
slightly about the calculation.  I conclude Ms. Nijjar missed slightly
more than six weeks of work and I award the sum of $700 for loss of Sears’
income.

[164]     I accept
that Ms. Nijjar was also unable to continue working as a janitor for a
period of about three months in 2010.  Plaintiff’s counsel has calculated the
loss of income from this source, roughly calculated at $1,437 a month, at
$4,313.  I consider that to be a reasonable assessment of the loss and I award
the sum of $4,300 for lost janitorial income in 2010.

[165]     I accept
that Ms. Nijjar was unable to work as a security guard from May 23, 2012
until July 2, 2012.  Her counsel has calculated the loss of income from this
source to be $4,176.  I consider the calculation to accord with the evidence
and I award this sum.

[166]     Ms. Nijjar
is also seeking an award of $12,400 for lost income from janitorial work for
the period May 23, 2012 to October 1, 2012.  I have earlier stated my
conclusion that Ms. Nijjar did return to janitorial work in the period
between May 23, 2012 and October 1, 2012 and the reasons for that conclusion.

[167]     In order
to accept the calculation of lost income proposed by plaintiff’s counsel, the
evidence would have to provide some basis to conclude that but for the
accident, Ms. Nijjar would have earned $60,046 in 2012 – a figure she had
never come close to achieving in any previous year.  The highest income she had
reported in any previous year was in 2011.  She reported total income of
$44,877 in that year.  Her 2010 income adjusted to take into account the proposed
award for lost income would result in total income in that year of about
$46,000.

[168]     There is
no evidentiary basis for a conclusion that but for the accident she would have
earned $14,000 more in 2012 than she had earned in 2010; or $15,000 more than she
had earned in 2011, keeping in mind that she would only have worked at any of
her jobs for nine months in 2012 as she planned to go to India in October for
her wedding and remain there until mid-December.

[169]     I consider
it more probable that Ms. Nijjar returned to janitorial work at the same
time she returned to working as a security guard.  Ms. Nijjar did not
present evidence about the rate of pay she was earning doing this work.  A
conservative estimate is warranted.  I award the sum of $3,000 for loss of
income from janitorial work in 2012.

[170]     Ms. Nijjar
is seeking an award of $34,385 for 2013.  This claim is based on the
proposition that but for the accident, Ms. Nijjar would not have taken
training to become a home care assistant and would have earned the same amount
in 2013 as she earned in 2011, from which the sum of $10,492 − Ms. Nijjar’s
actual income in 2013 −
has been deducted.

[171]     I am not
persuaded that Ms. Nijjar decided to train as a home care assistant in
2013 because of the accident injuries.  She did have difficulty finding work as
a security guard when she returned from her wedding, but this was primarily, I
conclude, because she had left her employment to go to India and her former
position had been filled.  The security job she had been doing was no longer
available and Ms. Nijjar was not interested in the jobs she was offered. 
She quit working as a security guard at a truck depot because she felt unsafe
working there at night, not because of the accident injuries.

[172]     She did
testify that she rejected offers of bank security guard work because she would
be required to do a lot of standing and thought she would experience
discomfort, but the evidence indicates that in February 2013 Ms. Nijjar
was confident that she could stand continuously for four hours − a pre-requisite for
training and working as a care aide.  Dr. Manchanda also signed a fitness
assessment indicating that Ms. Nijjar had the capacity to stand
continuously for four hours.  Ms. Nijjar agreed in cross-examination that
a bank security guard would be entitled to regular breaks and would be able to
sit during those breaks.  In any event, she did not even attempt to work as a
bank security guard so the evidence does not establish that she was
incapacitated from that work by reason of the accident injuries.

[173]      I have
already stated my conclusion that Ms. Nijjar had worked as a janitor after
the 2012 accident.  Paul Pakulak testified that janitorial work is considered
to require “medium” strength and Ms. Nijjar met the NOC requirements for a
janitor.  Ms. Nijjar did janitorial work in 2013 and the evidence does not
establish that she could not have continued doing this work had she chosen to
do so.  She earned $6,000 working as a contractor for AR Building Maintenance
Ltd.  I infer that she could have earned much more working as a janitor but did
not have the time because of her full-time studies.

[174]     I make no
award for lost income for the year 2013.

[175]     I award
the sum of $12,176 for past loss of income.

LOSS OR IMPAIRMENT OF THE CAPACITY TO EARN INCOME

[176]     Counsel
are agreed that the correct approach to assessing damages for loss or
impairment of the capacity to earn income is enunciated in Perren v. Lalari,
2010 BCCA 140 and factors to be considered are in Parker v. Lemmon, 2012
BCSC 27.

[177]     Counsel
for the Plaintiff submits that an award of $264,620 is warranted, based on a
projected loss of annual earnings of $10,000 to age 65.  Counsel for the
defendants submits that the plaintiff has failed to establish a “real and
substantial possibility” that she will lose income in future.

[178]     I have
already stated my conclusion that Ms. Nijjar had recovered to the point
where she was capable of doing the types of work she had done before the
accidents.  I am satisfied that she decided to train to work as a care aide by
choice, and not because she was incapacitated from her previous employment

[179]     Nevertheless,
I accept Mr. Pakulak’s opinion that the symptoms that Ms. Nijjar
continued to experience at time of trial, and that Drs. Arthur and Hershler
opined would likely continue to experience in future, have diminished Ms. Nijjar’s
capacity to work at all types of employment that were previously open to her. 
I accept that the symptoms have resulted in a loss of stamina and that tasks
requiring sustained heavy physical performance would result in symptoms that
could become incapacitating.  There is also a possibility that the injured
cervical disc may become symptomatic in future.

[180]     I am not
persuaded, however, that the diminishment of capacity warrants an award of the
magnitude proposed by the plaintiff.  Ms. Nijjar did work as a health care
assistant for some months during her training and some months prior to
embarking on early maternity leave.  Although she had not yet managed to secure
full-time employment, the evidence does not indicate that she was having
difficulty performing her duties or was curtailing her hours of work due to her
symptoms.

[181]     I consider
it unlikely that Ms. Nijjar will suffer a loss of earnings in the next
several years or perhaps the next couple of decades.  There is a real and
substantial possibility that as she ages the symptoms combined with the normal
aging process will affect her capacity to earn income.  I award $80,000 for
diminishment of the capacity to earn income in future.

LOSS OF THE CAPACITY TO DO HOUSEWORK

[182]     I am not
persuaded that there is any loss or diminishment of Ms. Nijjar’s capacity
to do housework.  Mr. Pakulak did state that he would anticipate that Ms. Nijjar
would experience increased difficulties with the completion of more physically
demanding household chores.  His testing results also indicated, however, that Ms. Nijjar
has the capacity to work as a janitor and as a care assistant − both jobs that are, in
my view, more physically demanding than the tasks involved in housecleaning.  Ms. Nijjar
was married soon after the second accident and as both she and her husband were
employed outside the home and/or in school soon after, it makes sense that Mr. Benipal’s
mother assumed responsibility for most household tasks.

[183]     Any
discomfort Ms. Nijjar might experience doing heavier household tasks is
more appropriately compensated as a non-pecuniary loss.

COST OF FUTURE CARE

[184]     Ms. Nijjar
is seeking an award of $7,300 for the cost of future care.  The sum was
calculated based on an assumption that Ms. Nijjar would purchase a topical
anti-inflammatory cream recommended by Dr. Hershler; continue to purchase
and consume over the counter Tylenol tablets (12 bottles annually); attend a
gym for 12 months; and meet with an exercise trainer once a week for three
months, and then one a month for a further six months.

[185]     At time of
trial, Ms. Nijjar had not purchased or used the anti-inflammatory cream
and she did not testify that she had any intention of purchasing this product
in future.

[186]     Ms. Nijjar
gave varying reports about her use of over the counter analgesics and did not
produce any receipts, which makes the assessment of damages on this point
difficult.

[187]     I accept Dr. Arthur’s
opinion that it is likely that Ms. Nijjar will continue to experience
resolution of her symptoms in future, particularly if she attains and maintains
a higher level of fitness.  I conclude her use of analgesic medication is
likely to decline in future.

[188]     Doing the
best I can with very limited evidence, I award the sum of $3,000 for the cost
of the gym membership, over the counter analgesics, and some sessions with a
trainer.

NON-PECUNIARY DAMAGES FOR PAIN, SUFFERING AND LOSS OF THE
ENJOYMENT OF LIFE

[189]     Although Ms. Nijjar
had been athletic and physically active in high school and college, the evidence
at trial indicates she did not participate in any organized sports activities
in the years immediately prior to the first accident; did not attend a gym
regularly, and with the exception of walking and occasional games of tennis
with her cousins, led a relatively sedentary lifestyle, outside of her work
life.  The fact that Ms. Nijjar was working at several jobs probably made
it difficult for her to be very active socially.  The evidence at trial does
not support a conclusion that any of Ms. Nijjar’s pre-accident activities
are now completely closed to her as a result of the accident injuries.

[190]     Although I
concluded that Ms. Nijjar exaggerated the frequency, constancy and
severity of her accident injuries in her testimony at trial, I accept that she
has experienced pain and discomfort, particularly in her neck, upper back and
trapezius muscles over the course of the past several years, and that she was
quite resolute in continuing to work, despite these symptoms.  I accept that
she likely worked in pain and worked through the pain in order to continue to
earn income because she had little alternative but to continue working.

[191]     I accept
that Ms. Nijjar will continue to experience some symptoms into the future,
for which she should also be compensated.  I have concluded that she continues
to be able to perform all household tasks, but may experience increased
symptoms when she engages in heavier chores.

[192]     I noted
earlier, however, that Ms. Nijjar failed to act on the repeated advice she
received to engage in an active rehabilitation program and that I am of the
view that had she participated in such a program, she would have experienced
earlier and more symptom resolution.  The defendants are not obliged to compensate
the plaintiff for symptoms she could have avoided or lessened by taking
reasonable steps to assist her own rehabilitation.

[193]     Counsel
referred the court to the following authorities on the issue of non-pecuniary
damages:

Beagle v. Cornelson, 2012
BCSC 1934; Bulpitt v. Muirhead, 2014 BCSC 678; Schnare v. Roberts,
2009 BCSC 397; Majer v. Beaudry, 2002 BCSC 746; Mackenzie v.
Rogalasky, 2011 BCSC 54

[194]     Having
considered all of the evidence and the range of damages suggested by these
authorities, I conclude that an award of $90,000, before deduction for a
failure to mitigate, is warranted.  I reduce that award by 15% for the failure
to mitigate, and award the sum of $76,500.

SUMMARY OF DAMAGES AWARDED

“W.G.
Baker J.”