IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100111

Docket:
M108105

Registry: New Westminster

Between:

Lisa Marie Gregory

Plaintiff

And

Dustin Patrick Penner aka

Dustin Patrick Donald Penner aka

Dustin Penner

Defendant

Before: The Honourable Madam Justice E.A. Arnold-Bailey

Reasons for Judgment

Introduction

[1]            
Lisa Marie Gregory (the “plaintiff”) is suing
Dustin Patrick Penner (the “defendant”) for personal injuries she claims to
have sustained in a motor vehicle collision that occurred on September 11, 2006,
on the Mary Hill Bypass in the City of Port Coquitlam, British Columbia (the
“accident”).  Liability for the accident is admitted on behalf of the
defendant.

[2]            
In the accident the rear of the plaintiff’s
vehicle was struck by the left front of the defendant’s vehicle, and as a result
of the impact the plaintiff claims to have sustained soft tissue injuries to
the left side of her body, resulting in increased migraine headaches, reduced
mobility of her left arm and hand, and a ruptured breast implant that has
deformed her left breast.

[3]            
 As a result of these injuries the plaintiff
seeks non-pecuniary damages for pain and suffering, an award for diminished
capacity to earn income in the future, past wage loss, awards for loss of
housekeeping ability, cost of future care, and special damages.  After the
accident, due to the injuries she sustained, the plaintiff claims that she was
unable to maintain her former occupation as a meat packer, and then was unable
to work as a welder upon retraining.  She also claims to have been financially
unable to have her deflated breast implant replaced.  In relation to the latter
she was unsuccessful in obtaining an advance from the defendant’s insurer, the Insurance
Corporation of British Columbia (“ICBC”), to facilitate the same: Gregory
v. Penner, 2009 BCSC 1661.

[4]            
The defendant disputes the extent and duration
of the injuries claimed by the plaintiff.  The defendant’s position is that the
plaintiff indicated to a doctor on August 2, 2007, that she was recovered from
the accident-related injuries so as to qualify for re-training as a welder. 
Counsel for the defendant submits that the evidence linking an increase in the
number and severity of the plaintiff’s migraine headaches to the accident is
equivocal, and that causation has not been established in relation to the
rupture of the plaintiff’s left breast implant.

Issues to be Decided

[5]            
The substantive issues to be decided in this
case are:

1.       Which
of the injuries and symptoms the plaintiff claims to suffer from, since the date
of the accident to the trial, are proven on a balance of probabilities to have
been contributed to or caused by the defendant’s negligence in the accident, as
opposed to being pre-existing, unrelated, or not proven to exist.

2.       What
is the extent of the losses suffered by the plaintiff proven to arise from the
accident and what is the appropriate quantum of damages in relation to those
losses under the various heads of damages claimed, namely:

(a)      non-pecuniary
loss;

(b)      loss of
future income and future earning capacity;

(c)      past wage
loss;

(d)      loss of
housekeeping ability;

(e)      cost of
future care; and

(f)       special
damages.

3.       To
what extent, if any, has the plaintiff failed to mitigate the injuries and
symptoms attributable to the accident by not following the prescribed treatment
plan or engaging in activities not conducive to a full recovery.

The Trial

[6]            
At the trial the plaintiff testified, as did Dr.
Ross Horton, a plastic surgeon.  Also called on behalf of the plaintiff was Mr.
John Banks, a rehabilitation consultant with a specialty in vocational
evaluation and work capacity assessment; Mr. Darren Benning, an economist and
an expert in the past and future income loss; Ms. Marion Nihls, a
physiotherapist and a specialist in musculoskeletal rehabilitation; Mr. Fred
Chaloner, a long-time friend of the plaintiff; Ms. Irene Mayoh, the plaintiff’s
mother; and Ms. Chandra Mayoh, the plaintiff’s daughter.  After sustained
efforts by counsel for the plaintiff and an adjournment of the trial for
several weeks, the plaintiff was also able to call her family doctor, Dr.
Cremona Ticea, who failed to attend in response to the first subpoena.

[7]            
In response the defendant, Dustin Penner,
testified; as did Mr. Leonard Solstad, an estimator employed by ICBC.  Counsel
for the defendant also presented the video disposition evidence of Dr. Karen
Wardill.

Relevant Evidence and Findings

[8]            
I have reviewed the evidence at trial in order
to determine the issues I have identified.  What follows is a summary of the
relevant facts derived from the evidence and my findings as to the credibility
and reliability of the testimony of each witness.  I will conclude this section
with my findings as to the nature and extent of the plaintiff’s injuries that I
find were caused by the accident.

Evidence called on behalf of the
plaintiff

The Plaintiff, Lisa Marie Gregory

[9]            
The plaintiff is a 44 year old separated mother
of two: a 20 year old daughter (Chandra Mayoh, who testified); and a son, aged
11 years.  On the date of the accident, September 11, 2006, the plaintiff was
going to pick up her son up from school when she got caught in stop and go
traffic on the Mary Hill Bypass and her vehicle, a leased white 2002 Impala,
was struck from behind by a black Volkswagen vehicle, owned and driven by the
defendant.  She recalled feeling “a big jolt”, but was not sure what had
happened.  She said she had difficulty undoing her seat belt.  The plaintiff
recalled being asked by a female police officer, who was attending another
accident nearby, if she wanted an ambulance to be called, which she declined
because she was anxious to collect her son from school.  She was asked by the
officer to move her car to the side, which she did.  When she got out of her
car she saw black marks on the rear of her vehicle.   She saw that the front
left signal light and the front bumper of the Volkswagen were damaged.  After
the police officer wrote up the report, the plaintiff continued on her way.

[10]        
In terms of how she recalled the moment of the
collision and how she felt immediately afterwards, the plaintiff said she
remembered “a big jolt” in which her head was flung forward and that her chest
was very sore afterwards.  She said that her chest must have been hit as she was
flung forward.

[11]        
The plaintiff said that she was wearing her
shoulder seat belt across her chest and lap, her head rest was properly adjusted,
and, if the car had an air bag, it did not go off.  Within a few minutes of the
accident the plaintiff said she felt pain in her chest and the back of her
neck.  Right after the accident she considered herself to be in shock, a
nervous wreck, very disoriented, and only thinking of picking up her son.  She
said that she reported the accident immediately to ICBC.  Later that evening
she experienced nausea, chest pain, and a very severe migraine for which she took
Gravol and four Advil.

[12]        
Upon waking up the next day the plaintiff said
that her neck was stiff and sore, she had an excruciating migraine, her chest
was sore, and her left arm felt “like almost I had to unfold it”.  She described
tingling feelings in both hands and she found that her left wrist was hard to
rotate, unlike her right one.  She said that her chest, and specifically the
area of her left breast, was very sore.  She also noticed bruises on her inner
left forearm in the area of her bicep.  She described the pain as being a “9
out of 10”.  She said that she went from being very physically fit to feeling
like she had been beaten up.

[13]        
The plaintiff testified that prior to the
accident she had not been in any motor vehicle accidents in the previous two
years or undergone any surgeries except the breast augmentation surgery in
Florida in 2005.  She said that she had breast augmentation surgery at the age of
39 to improve her appearance and her self-esteem.  She chose to have saline
implants as she understood them to be the safest.

[14]        
The day after the accident the plaintiff went to
work at Hill’s Foods, an organic meat, poultry and game processing and packing
plant (“Hill’s”), where she worked packing their products.  Prior to the
accident she had been working there for a year, full-time with some over-time, for
$12 per hour plus benefits.  She had a problem her first day back to work, when
she was unable to lift a tray of chicken breasts and it collapsed to the floor. 
She said that lifting like this was something that she did many times every day
at work.  She recalled starting the day with a migraine and experiencing numbness
and tingling in her hands and fingers, which she described as “the weirdest
sensation”.  She said that when she rotated her left wrist it felt really stiff
and it got stiffer throughout the day.  The plaintiff recalls telling her
supervisor that she was not feeling well and thinks that she left early.  She also
recalls experiencing nausea that day and taking more Advil and Gravol before
going to bed early.

[15]        
Several days after the accident the plaintiff
found that her left arm was very stiff and sore, more towards the area of her
left shoulder.  When she went to get dressed she found it difficult to put
clothes on if she had to raise her arms.  The plaintiff described the tingling
sensation in her hands to be accompanied by a burning sensation in the area of
her left breast, and that at times she would feel like there was electricity
going through her left breast.

[16]        
Three weeks after the accident, the plaintiff
recalled that she woke up with a stiff neck and a migraine, tingling in her
hands, and experienced difficulty in rotating her left wrist and in moving her
left shoulder while putting on her tops and bras.  Upon getting out of the
shower, she noticed that her left breast was quite a bit smaller than her right
breast and she asked her daughter to take a look.  The plaintiff also noticed
that a lump was present in her left breast.  She recalled sitting on her couch
in excruciating pain and in tears, taking four to six Ibuprofen or Advil at a
time.  She became concerned that she had breast cancer.  She described the pain
she experienced in her left breast at this time as approaching the pain of
child birth.

[17]        
As a result, the plaintiff went to the Emergency
Department at Eagle Ridge Hospital on October 4, 2006.  She said that she
waited until then because as a single mother with two children she felt that it
was imperative that she continue working.

[18]        
The plaintiff indicated that she did work
between September 12 and October 5, 2006, on “light duties”, which she was initially
able to manage, but after time she found that she could not perform the
required light duties as the burning sensation in her breast, the pain in her
left wrist, soreness in her left shoulder, and tingling in her fingers were
still there.  About a month after the accident the plaintiff said that she
still could not drive as she could not shoulder check.  She continued to
experience a burning feeling in her chest all the time, and periodically she
felt the electrical-like sensation.

[19]        
The plaintiff went to her family doctor, Dr. Shehata,
on October 5, 2006, and told her about the accident.  She reported experiencing
the worst migraines ever, pain and soreness in her neck, left shoulder and left
wrist, and that her chest was hurting as a result of the accident.  At this
time, the plaintiff said she was having a lot of trouble getting dressed and
was experiencing a lot of burning and pain in her chest.  Dr. Shehata arranged
for the plaintiff to have an ultra sound of her left breast on October 11, 2006,
upon which the plaintiff learned that the saline implant in her left breast had
ruptured and the lump was caused by fat necrosis.

[20]        
The plaintiff was referred to Dr. Horton, a
plastic surgeon, whom she saw on October 31, 2006.  She learned from Dr. Horton
that she would need to have surgery to replace the implant.  He gave her a
series of cortisone shots over several appointments to dissipate the fat
necrosis in her left breast.  The plaintiff found the injections very upsetting
as she is scared of needles.  However, she said that she was prepared to do
anything to get rid of the lump, which was about an inch and a half in
diameter.  On one occasion, the needle broke in the course of Dr. Horton trying
to inject the lump.  She said that the treatments reduced the size of the lump
but that the burning and electrical sensations in her left breast persisted.

[21]        
The plaintiff understood that as of early 2007
she should have the left breast implant replaced, but said that she had not
done so because she could not afford it.  She was advised it would cost about
$6,000.  She said that she did not have the funds, nor was she able to borrow
them.  She said that the ICBC claims adjuster declined to provide her with the
necessary funds because he took the position that the ruptured breast implant was
not connected to the accident.

[22]        
At the time of trial the plaintiff had not had
the surgery to replace the ruptured left breast implant.  She understood that
the lump of necrotic fat was gone.  She indicated that she was still
experiencing the burning and electrical sensations in the area of her left
breast on a sporadic basis throughout the day, every day.  She said that when
she had the lump the pain was a “9”, whereas now it is a “7”.  She continues to
take Ibuprofen and Advil.  She remains concerned about the presence of a
foreign object in her left breast and worries about cancer, as she previously
had cervical cancer.  She indicated that she is able to have the surgery when
she can pay for it as long as Dr. Horton is available, and that it will take
about two weeks for her to recover.  She is worried that because of scar tissue
in her left breast she may not be able to have a size “D” cup again when she
gets the left implant replaced and, if that is the case, then she will have to
have the size of her right breast implant reduced.  At present, to create the
appearance of breasts of equal size the plaintiff wears an artificial rubber
breast inside the left side of her bra.

[23]        
From October 5, 2006, until just prior to trial,
the plaintiff continued to see physicians to help her recover, in terms of diagnosing
the extent of her injuries and recommending treatment, including physiotherapy. 
Initially, she saw Dr. Shehata, and then switched to the Kensington Clinic
where she primarily saw Dr. Ticea, and on other occasions saw other doctors,
including Dr. Wardill, who testified by video deposition on behalf of the
defendant.  Between October 2006 and April 2007, the doctors provided the
plaintiff with a series of notes regarding her employment, initially
recommending her for light duties, and then explaining absences of varying
length due to accident-related complaints.

[24]        
The plaintiff testified that this ongoing injury
has affected her life considerably.  She will not date and has found that she is
less outgoing and sociable, which has caused her relationship with her children
to deteriorate somewhat.  She likes to express her love for her children with
physical gestures and finds this is hampered by her injuries and the on-going
pain and discomfort.  She also finds that since the accident she has started to
experience panic attacks that happen quite frequently and “out of the blue”, in
which her heart races, her hands shake, and she cannot control her breathing. 
Also, about a year after the accident the plaintiff said that she became “very
gloomy”.  On January 19, 2007, Dr. Ticea recommended that the plaintiff see a
psychologist.  The plaintiff advised that she was unable to see a psychologist
due to the cost.  She was also assessed by a psychiatrist upon referral from a
doctor at the clinic.

[25]        
The plaintiff obtained an initial referral for
physiotherapy from Dr. Shehata, which was followed up by subsequent referrals
from Dr. Ticea.  The plaintiff underwent physiotherapy with Ms. Marion Nihls. 
She attended a number of appointments before taking a more intensive program of
active rehabilitation, which ended in March 2007.  The plaintiff considered that
for about six months afterwards she slowly came to have greater movement in her
neck and left wrist.

[26]        
With regards to her neck, the plaintiff says she
still experiences pain and stiffness.  She still experiences pain in her left
shoulder and has problems with the rotation in her left wrist.  When she gets
up in the morning she regularly has a migraine.  She sleeps with two pillows
under her head and shoulders as she learned in the active rehabilitation
program.  She continues to do the exercises she learned in that program to
strengthen her neck, her left arm and wrist, and her core.  She does stretching
exercises for 10 to 15 minutes in the morning, and found on the day she
testified that her neck was “not too bad”, as she could bend it quite well to
the right, but was more limited to the left, and could only rotate it about 25
degrees from straight ahead.

[27]        
Prior to the accident, the plaintiff testified
that she was very physically active and in excellent shape.  She rode her bike
and liked to wrestle and play physically with her children.  She was a serious
recreational swimmer, having been a competitive swimmer when she was young. 
She also played tennis, hiked, played co-ed baseball and taught swimming.  As a
young woman, she indicated that she had set national records for the butterfly
and breast strokes, and had held the 100 meter national record in the butterfly
stroke for the 30 to 35 year old age group.  She was also a long distance
runner at 12 years old and held a record for running the mile.  She had then
cross-trained between running and swimming to build up her endurance.

[28]        
Since the accident the plaintiff testified that
she cannot run as the movement causes her left breast to hurt, so now she walks
quickly and wears a sports bra to reduce movement of her left breast.  She said
that she has not returned to swimming recreationally since the accident.  She
stated that when she goes to the pool she has a cappuccino while watching her
son swim.  She says that her neck is always sore and to exercise she takes
Ibuprofen so as not to “end up as big as a house”.

[29]        
In terms of the plaintiff’s ability to lift
things, she said that in the first month after the accident she was unable to
lift things like she had previously, as indicated with the collapse of the tray
of chicken at Hill’s.  She said her employment at Hill’s involved being on her
feet all day, moving and lifting meat and poultry products on racks and trays. 
Initially, when she was on light duties in October 2006, she was able to
perform the required tasks, but then as her left breast became more sore and
the fat necrosis accumulated her chest became very painful, the pain in her
neck affected her arm, and she found the pain to be more severe in the rotator
cuff of her left shoulder.   When she was no longer able to work she was on
medical unemployment and then regular employment insurance.

[30]        
In the spring of 2007, the plaintiff took an
active rehabilitation program recommended by her doctor and supported by ICBC. 
This consisted of a “full-time” rehabilitation program for four days a week,
for a period of four to six weeks.  She said that her breast pain was not
diminished by this program, but found that it was a great help in terms of
increasing her mobility and reducing the pain in the area of her neck, left
shoulder, arm and wrist, and in increasing her mobility.  She found that it
reduced her migraines.  She considered that it reduced the pain in these areas
from “a nine” to “a seven”.  It was recommended at the end of the program that
she return to light duties at Hill’s, but she had been laid off.

[31]        
The plaintiff explained that prior to the
accident she had wanted to go to welding school at BCIT to become a qualified
welder.  The program took a year and she believed she was strong enough to do
the work.  She considered the rate of pay and employment opportunities to be desirable. 
In order to be approved for the welding course, the plaintiff required medical
clearance.  She testified that she considered herself not to be completely
recovered, but well enough to go to welding school.  She saw Dr. Wardill at the
Kensington Clinic on August 2, 2007, to obtain the necessary medical approval
to take the welding course, although the plaintiff disagrees that she ever said
she was “fully recovered” from the accident.  The plaintiff actually attended twice
for this purpose as she saw Dr. Wardill again the next day to have the note
permitting her to take the welding course reworded to make it more explicit.

[32]        
The plaintiff started in the welding course in
August 2007, having been involved in the preceding months arranging for
Employment Insurance to pay for it.  She indicated that the course started at 7
a.m. with several hours of classes and then the rest of the training was “hands
on” until 1:30 p.m.  During this time, she said that she was still experiencing
the burning and electrical sensations in her left breast.  She found that her
left arm was sore and she missed some classes due to migraines.  However, she
testified that she continued because she thought she was going to have “a good
career” as a welder that would be good for her family.  In particular, the
plaintiff found that the welding and lifting of cast iron to be heavy work.  It
took her a long time to pass a particular part of the course that involved
lifting over her head and much bending of her neck.  She said she had to take
two to six Advil a day to manage the course.

[33]        
The plaintiff completed the welding program in
March 2008.  Whereas in the beginning she was at the top of the class, she was
one of the last three students to complete it.  She said that she “staggered”
at the end with her migraines really bothering her.  When she considered how
she felt in March 2008, as compared to March 2007, the plaintiff said that her
migraines had increased and her left arm was bothering her more than it had.

[34]        
In April 2008, the plaintiff found welding work
at Vedder Steel at $15 per hour.  She worked with structural steel, which was
not her preference, but as she was just out of training she took the position. 
She was given a blue print and was to produce what was set out on it.  She
found that the first several days were not bad and she was getting her tasks
done, with some assistance in terms of heavy lifting.  However, she found that as
she continued her left shoulder became more sore, her neck very tense, and her
left wrist very stiff.  The plaintiff worked for Vedder Steel for about a month
until she quit on April 23, 2008.  During that time she thought that she called
in sick once.

[35]        
The plaintiff then sought work at a pulp mill,
where she worked for a month.  She took a position running a “barker”, which she
understood would not be physically demanding.  She found that the long periods
of sitting aggravated her neck, and that the job entailed more physical work
than she had appreciated, including the lifting of heavy chains.  During this
time, she experienced on-going soreness in her left shoulder and found that her
left wrist was not strong.  She continued to experience the burning and
electrical sensations in her left breast, which she considered to be present
all the time, but which she noticed sporadically.  She recalled that she missed
one or two days during the month that she worked at the pulp mill.

[36]        
Then the plaintiff went to work for a construction
company doing site clean-up for $15 per hour.  Her duties entailed cleaning the
inside of houses, emptying garbage, carrying wood to a pile, raking, and the
tamping of sand with a machine.  She found that the more she raked and did the
heavier outside duties, the more her left shoulder and left wrist hurt.  She
experienced “quite a few” migraines and found that she was taking up to four
Advil or Ibuprofen per day to manage the pain.  In particular, she found that
the pulling motion in raking aggravated her left shoulder and caused pain in
her left breast by movement of the implant.  Over the period of four months
that she held this employment, the plaintiff said that she missed between two
to four days.  She left to seek other employment.

[37]        
The plaintiff then found full-time employment
with Transparent Glazing as a driver.  She delivered prefabricated windows to
job sites.  This employment did not require any heavy lifting, although she
found it difficult to look over her left shoulder.  She remained working for
Transparent Glass for ten months, until she was laid off in July 2009.  During
that time she missed about four days of work.  The plaintiff said that this
work involved a variety of tasks that permitted her to change positions often.

[38]        
In terms of her employment aspirations, the
plaintiff said that before the accident her career goal was to be a welder, and
while she obtained her level C, she had hoped to get her level B and work
making kitchen equipment.  Since the accident she said her goals have changed
and she now thinks she would like to take a course at Douglas College to
qualify to teach sports to children, particularly aboriginal children.  She
said that she had high hopes for her recovery after the active rehabilitation
program, but she has had to switch gears because of the ongoing pain in her
neck, left shoulder and the stiffness in her left wrist.

[39]        
The plaintiff testified at some length about her
other concerns regarding being able to provide for her children as a single
parent and pay for basic living expenses.  She said that her relationship with
her children is diminished by the financial stress she is experiencing.  She
said she is short money for rent all the time and cannot remember when she last
had a fridge full of food.

[40]        
Prior to the accident the plaintiff testified
that she did all her own housekeeping chores, which included vacuuming, washing
windows, cleaning bathrooms, doing laundry and washing floors.  She had also
worked cleaning at a townhouse complex for $17 per hour.  She liked to move her
furniture around to vacuum.  Since the accident, the plaintiff said she does
some housekeeping chores but her children help more.  Right after the accident
her daughter did the vacuuming for several months.  Now the plaintiff finds the
vacuum heavy and does not move the furniture.  Her son sweeps the floors and
her daughter washes them.  At present she says she can do housekeeping chores,
but it takes her longer than it did prior to the accident.

[41]        
The plaintiff described a long history of
migraine headaches that pre-dated the accident but she claims that since the
accident her migraine headaches increased in frequency and severity.  While
living in Florida prior to 2005, she said she sought medical attention for
migraines once every three months and that she had also attended the hospital
emergency department a couple of times.  The plaintiff testified that prior to
the accident she might have a really bad migraine such that she went to the
hospital emergency department for an injection once every three months.  In
addition, once every six months she would have a less severe one that she could
treat by staying at home and taking prescribed medication.  She recalled during
one week in December 2006 she had to attend the hospital emergency room three
times.

[42]        
Since the accident, the plaintiff testified that
she experiences a really severe migraine once a week and she often has to
attend the emergency department.  She said the longest a migraine lasts is two
days and her symptoms post-accident are much more severe.  She has intense pain
all over her head, her eyes are very sensitive to light, and her vomiting is
much worse, extending at times for more than 24 hours.  A less severe migraine
lasts a few hours.  The plaintiff said she wakes up with tension in her neck
every day and has less severe migraines a couple of times a week.  She stated
she does not get headaches, as to her a headache is a migraine.  She said that
her family doctor, Dr. Ticea, prescribed her a medication called Imitrex for
headaches, which is very expensive.  After the accident, she was referred to a
specialist for her headaches, Dr. Bozak, a neurologist, who prescribed
medication called Topamax and referred her to specialized acupuncture
treatments.

[43]        
The plaintiff said she is puzzled as to why in
the last four months she has found her left shoulder to be significantly
worse.  She finds that the pain has become excruciating when she tries to reach
overhead, or to undo her bra. She testified that she wakes up every day with
migraines, has pain down her neck into her left shoulder and finds that her
mobility in her left wrist is reduced by stiffness.  She says she is still
experiencing the electrical and burning sensations in her left breast.  The
plaintiff said she now feels like she has gone back to “square one” and that
the pain seems to come from nowhere and catch her off guard.

[44]        
At the time of trial, the plaintiff said she
experiences about two good days a week when she is able to wake up in the
morning and do her stretching exercises and not take pain medications.  On the
bad days she wakes up with tension in her neck, her left arm feels sore such
that she has to “unfold it”.  She has to take two Advil or Ibuprofen to do her
neck exercises.  She has a migraine that she would rate as a three or four in
terms of the level of discomfort.  The pain in her left shoulder does not
subside and she experiences the burning and electrical sensations in her left
breast.  She often goes for a walk with the hope that fresh air will help.  The
plaintiff says she has three or four bad days a week and some days are a
combination of good and bad.  Overall she is taking four to six Advil a day to
manage her discomfort.  For her migraine headaches since the accident she takes
Topamax, and a nasal spray.  She said she would take Imitrex as prescribed if
she was able to afford it.

[45]        
In cross-examination, the plaintiff was
questioned about the accident itself.  She agreed the traffic had just started
to move forward when her vehicle was hit from behind.  She said she was looking
ahead and did not anticipate the accident.  The plaintiff said she felt a jolt and
that she is not certain exactly what happened because she was disoriented.  When
pressed about this later in cross-examination, the plaintiff said she recalled
a jolt and being flung forward, and that she believed she hit the steering
wheel, but she could not say for sure.  She put her car in park, got out
without assistance and remained conscious.  She recalls looking at the black
marks on the rear of her vehicle, which she said did not appear to be
accurately shown on the photographs taken later.  At the time of the accident,
she did not speak to the defendant, but recalls the defendant saying that it
did not look too bad.  When it was put to the plaintiff that she did not go to
a hospital emergency or a walk-in clinic right after the accident because she
had no symptoms she vigorously denied that was so, stressing that her only
concern was getting to school to pick up her son.

[46]        
The plaintiff admitted that she had panic
attacks and experienced depression before the accident.  She agreed she had
taken Adivan in 2006.  At one time she also started taking a medication for
depression, Effexor, but was not sure how long she took it.

[47]        
In terms of stress the plaintiff agreed that in
2005 and 2006 her son was experiencing learning disabilities, which had not
been diagnosed as anxiety-related at the time.  She was worried about him and took
him for treatment and to appointments.  She agreed that her son’s lack of well-being
causes her stress, but said he is better now.  She agreed her son had a serious
incident at school after the accident that she had to deal with.  Her spouse’s
lack of involvement with the children has also caused problems, since her
separation in early 2005.  She agreed that her lay off from Transparent Glazing
was due to a combination of shortage of work and issues related to her son.

[48]        
The plaintiff confirmed that she found the
active rehabilitation program to be helpful and agreed that she talked to the
physiotherapist, Ms. Nihls, about how she was feeling.  However, she denied
ever telling Ms. Nihls that she was virtually pain free.  Once the program
finished she said she would have been able to go back to Hill’s on light duties,
but as there was no position for her, she applied for Employment Insurance.  She
said that since the active rehabilitation program ended in April 2007 she has
continued with the stretches and other exercises at home and has gone to physiotherapy. 
She also said that at the end of the program she did go into the pool and did
kicking.  She said she could not do the butterfly stroke, but admitted she could
get a workout by swimming.  She also resumed hiking and went to the gym to
exercise and do active physiotherapy until her 30 day pass ran out.  She can
lift weights but not as heavy as before the accident and she cannot use some of
the machines as she did before.  She also confirmed that she drove for the
first month after the accident and then found it difficult and uncomfortable to
do so, at which time her daughter took over taking her son to school and
driving to the grocery store.  However, the plaintiff then resumed driving.

[49]        
The plaintiff agreed that she saw Dr. Wardill in
August 2007 because Dr. Ticea was not available.  She needed a note for the
welding program to confirm that she was well enough to take the course. 
However, the plaintiff denies telling Dr. Wardill that she was completely
recovered.  When she was shown the note from Dr. Wardill dated August 2, 2007,
she recalled that she had gone back to Dr. Wardill a day later to get a further
note that specified she was physically able to do the duties of a welder.

[50]        
She agreed that several weeks later she injured
her right shoulder while playing with her son on the monkey bars for which she
also saw her doctor.  She was prescribed pain medication including Selebrex,
Tylenol 3, and Naproxen and was then referred to physiotherapy for her right
shoulder.

[51]        
In terms of getting her left breast implant
replaced, the plaintiff indicated that she did contact the plastic surgeon in
Florida who performed the surgery, and she understood that for Mentor implants
a person has to buy a warranty with the implants.  The warranty only covers the
cost of the replacement implant itself.  The surgeon suggested to her that she
have her surgery done in British Columbia because of all the associated costs. 
She agreed that she had not looked into the costs of accommodations and flights
to Florida to have the replacement surgery performed there.

Dr. Ross
Horton, plastic surgeon

[52]        
Dr. Horton, a physician with specialty in
plastic and reconstructive surgery, first saw the plaintiff on October 31, 2006,
and then on four further occasions prior to trial.

[53]        
According to his report, dated March 6, 2008,
Dr. Horton noted the following upon his first examination of the plaintiff’s
left breast on October 31, 2006:

On examination in the office, she was found
to have a D cup size breast on the right side.  The breast was soft and
non-tender.  There was a well-healed periareolar scar.  The implant was
palpable and had a capsular contracture of a Baker II/IV level.  Examination of
the left side revealed that there is an obvious asymmetry with a lack of
superior fullness.  The implant was not palpable.  There was a retraction of
the areola with muscle contraction.  There was a well-healed periareolar scar. 
There was a 4 centimeter area just superior to the areola which was very tender
and an obvious palpable mass within the breast tissue.

It is my
impression in seeing her that she had a ruptured saline implant on the left
side.  As well as fat necrosis on the left side due to a blow to the left
breast.  [sic]  I arranged for her to have a mammogram.  This was done on
November 17, 2006, which revealed, “collapsed left subgladular saline implant. 
Fat necrosis with cluster of adjacent dystrophic calcification at 12 o’clock. 
Follow up left breast mammogram is suggested in six months to reassess the
calcification and fatty necrosis.”  This mammogram correlated with the ultra
sound done on October 11, 2006, which suggested of a traumatic implant
rupture.  The mammogram also confirmed the clinical impression of the fat
necrosis.

[54]        
Dr. Horton came to the following conclusion in
his report:

In conclusion
this patient has had a blow to the left chest secondary to a motor vehicle
accident which has resulted in force significant enough to rupture the saline
implant and to cause some fat necrosis to the left breast.  Although the fat
necrosis has improved, she has been left with a ruptured implant.  This will
leave her with a permanent disability with breast asymmetry.  At some point in
time she should have the ruptured implant removed and replaced with a new
intact implant.  This may be complicated somewhat due to the additional
scarring to the left breast subsequent to the injury.  I would expect that when
she does undergo the correction of the left breast deformity, she will require
a general anaesthetic done under a daycare procedure and will require 2-3 weeks
recovery for this.  Despite the corrective surgery she may still have some
permanent residual asymmetry of the breasts.

[55]        
In an update to his report dated September 22,
2008, Dr. Horton stated the following:

She had an MRI done on November 17, 2006,
which revealed a collapsed left subglandular saline implant as well as fat
necrosis adjacent to the implant.  While there are many causes of implant
rupture, trauma to the chest is certainly known to be one of these.  The fat
necrosis on the MRI suggests that there was significant left breast trauma. 
Since I did not examine her before her accident I can only assume she had an
intact implant before the accident.

[…]

Removal of the
implant and examination of the implant may or may not collaborate the trauma.

[56]        
In his direct examination, Dr. Horton explained
that with age natural breasts sag and there is a lack of projection in the
upper half of the breast.  Implants restore the breasts.  According to Dr.
Horton, an experienced plastic surgeon is able to distinguish between an
implant and a natural breast.

[57]        
A saline breast implant involves implanting a
silicone bag with a small valve into which the physician injects the saline to
create volume, the saline being the same as used for intravenous fluids.  If
the implant leaks saline, the body absorbs it.

[58]        
Dr. Horton also explained that the fat necrosis
he observed on the left side of the plaintiff’s chest is “fat death” that occurs
as a result of a tissue injury in which some of the cells die.  He said that
fat necrosis is associated with trauma and that it is commonly seen in thighs
or buttocks.

[59]        
Dr. Horton’s interpretation of the plaintiff’s
mammogram results were that they revealed a sub-glandular collapsed implant,
which means a ruptured breast implant that has shrunken down because of compression
forces.  He indicated that when he first examined the plaintiff’s left breast he
observed the lack of fullness and found that he could not palpate the implant. 
He said that the fact that he noted she had a mass near the left areola meant
that she had experienced enough trauma to rupture the implant and to have the
fat die, thus forming a four centimetre lump of scar tissue.

[60]        
Dr. Horton then explained the procedure, involving
a series of injections, which he used to try to reduce the size of the lump of necrotic
scar tissue in the plaintiff’s left breast.  He indicated that without the
injections to soften the lump it would tend to calcify and then would have to
be cut out.  Generally, he said that he would not want to make an incision on
the upper part of the plaintiff’s left breast as large as a golf ball to remove
the lump, which is how he referred to the initial size of the lump.  Thus, he
set about to reduce its size so that by February 28, 2007, with the injections,
he considered she had improved to the point that the implant could be replaced. 
In terms of timing of the replacement surgery, Dr. Horton said that an earlier
time is better, but he declined to say optimal.

[61]        
In terms of the outcome of the replacement
surgery, Dr. Horton indicated that residual asymmetry could occur as the scar
tissue remaining in the plaintiff’s left breast would probably have to be cut
out with the insertion of the new implant, and this could affect healing such
that the breast size with the new implant may not be exactly the same.

[62]        
On cross-examination Dr. Horton agreed that
there were all kinds of circumstances in which implants may rupture, including
by spontaneous leaking due to a faulty product or improper surgical procedures. 
He indicated that he was familiar with the Mentor type of implants used by the
plaintiff and had used them in the past, although he now preferred a different
brand.  With regards to Mentor products, Dr. Horton indicated that the
spontaneous leak rate is between one and five percent, and that would have been
the rate prior to May 2005, when the plaintiff had her augmentation surgery. 
In the present case, Dr. Horton said that he does not know where the source of
the leak is and upon removal the implant is sent back to the manufacturer.  He
assumes that a Mentor implant has a warranty and if the implant is defective
the manufacturer provides a new implant.  He said usually in such circumstances
the original surgeon will do the replacement surgery without charge.

[63]        
When asked about his conclusion in this case
that the force of the accident ruptured the implant, Dr. Horton agreed that was
an assumption on his part, although he said he had seen many patients who had
been in traffic accidents.  Key to his finding that the plaintiff’s left breast
implant ruptured in the accident was the presence of the fat necrosis.  He
indicated without that, the deflation of the implant could have been
spontaneous, but with the presence of the necrotic fat there was “a pretty good
likelihood” the deflation was caused by trauma.

[64]        
Dr. Horton agreed that without replacement the
plaintiff has a permanent disability, and with replacement the plaintiff may also
have a permanent disability, but the latter was difficult to determine at this
point.  He also agreed that it was not uncommon for non-augmented breasts to be
asymmetrical, and that even when augmentation surgery goes as planned some
asymmetry may occur.

[65]        
Dr. Horton impressed the Court as a highly
knowledgeable, professional, and honest witness.  I accept all of his testimony
without hesitation.

Dr. Cremona Ticea, the plaintiff’s
family physician

[66]        
Dr. Ticea, a specialist in general family
medicine, saw the plaintiff on a number of occasions through the Kensington
Medical Clinic, including with regards to injuries related to the accident and
other concerns.  Interspersed between the appointments the plaintiff had with
Dr. Ticea were appointments with other doctors in the clinic.  Dr. Ticea
indicated that she relied on entries to the plaintiff’s chart made by the other
doctors.

[67]        
Initially, after the accident the plaintiff saw
Dr. Shehata, and then she moved to the Kensington Clinic, where on November 1,
2006, she first saw Dr. Symon.

[68]        
In her testimony, Dr. Ticea reviewed the various
appointments she had with the plaintiff starting on November 7, 2006, when she
noted that the plaintiff had seen Dr. Horton due the ruptured left breast
implant and fat necrosis.  She also noted that the plaintiff had been off work
for a week and reviewed the medication the plaintiff was taking for pain:  Toradol
and Tylenol.  The plaintiff indicated to her that the pain her left arm and
left breast was constant.  The plaintiff’s range of motion in her neck was full
but she had pain on the right side with all motions.  Her range of motion in
her shoulders was full.  Dr. Ticea’s assessment was that the plaintiff was
suffering from a ruptured breast implant and whiplash associated disorder.  The
plaintiff was to transfer her medical records, attend physiotherapy and come
back in a week.

[69]        
When Dr. Ticea saw the plaintiff on November 21,
2006, she diagnosed left arm strain and the ruptured left breast implant and
recommended three weeks off work with continued physiotherapy.  She provided a
note indicating that the plaintiff was unable to work for medical reasons
related to the accident from November 21 to December 15, 2006.

[70]        
Dr. Ticea next saw the plaintiff on November 28,
2006, for follow up and to coordinate an appointment with Dr. Horton on
December 1, 2006, for an evaluation of the ruptured implant.  Dr. Ticea signed
an Employment Insurance form for the plaintiff that applied until the end of
January 2007.  She recommended that the plaintiff have physiotherapy twice a week.

[71]        
Dr. Ticea saw the plaintiff on December 14,
2006, by which time she had seen Dr. Horton and had a steroid injection in the
lump in her breast.  When Dr. Ticea examined the plaintiff she noted that she
had a reduced range of motion in her left wrist, which was stiff, that her left
hand was weaker, and she had pain in her left shoulder joint.  The plaintiff
was advised to continue physiotherapy, she was to attend to have her left
shoulder x-rayed, and if that was negative, she was to have nerve conduction
studies done.  In addition to the other medication she was taking she was to
take Flexeril, a muscle relaxant, three times a day.

[72]        
Dr. Ticea saw the plaintiff on January 11, 2007,
at which time she was still off work, unable to work with her left arm.  She
considered the plaintiff to be worse since she had last seen her, as her wrist
was stiff and she had pain coming from her shoulder.  The plaintiff advised
that she had been in hospital for migraines, and had been given a head scan,
which was normal.  She had been given a nasal spray called Axert and a trial of
Eletriptan, both migraine medications.  She was on an antihypertensive
medication for fluid retention from the non-steroidal anti-inflammatory drugs. 
Dr. Ticea recommended physiotherapy and nerve conduction studies.

[73]        
When Dr. Ticea saw the plaintiff on January 19,
2007, she noted three reasons for the visit:  the first to do with the accident
and the lump in the plaintiff’s left breast that required another steroid
injection by Dr. Horton; the second to do with migraines; and the third
regarding counselling for divorce and the accident.  Dr. Ticea said that
she did not treat the plaintiff for depression, but noted that Dr. Wardill had
referred her to Dr. Rana, a psychiatrist who works out of their clinic.

[74]        
On February 5, 2007, Dr. Ticea saw the plaintiff
because she needed a note for work.  She reported feeling similar pain in the
left side of her neck, left arm and spoke of changing work.  Dr. Ticea
recommended that the plaintiff not work until February 28, 2007, when she was
next scheduled to see Dr. Horton.

[75]        
On February 8, 2007, the plaintiff attended to
see Dr. Ticea to obtain a prescription for active rehabilitation which was to
be approved by ICBC.

[76]        
On March 8, 2007, Dr. Ticea saw the plaintiff
for an assessment prior to her starting active rehabilitation.  The plaintiff
advised that she was having two to three migraines per month, and that she was
taking a migraine medication, Relpax.  The plaintiff reported that she had seen
Dr. Horton the prior week and the breast lump was ‘nice and soft’ and that if
ICBC paid, she was going to replace the saline implant.  The nerve conduction
studies were negative, having been conducted by a neurologist, Dr. Bozek.  Dr.
Ticea recommended a CT scan of the plaintiff’s cervical spine.

[77]        
On March 21, 2007, Dr. Ticea saw the plaintiff,
who had experienced a bad migraine for several days.  The plaintiff had been to
a hospital emergency department that day and given morphine and another
migraine medication to try.  She continued to be unable to work and Dr. Ticea
provided her with a note that recommended she be off work until April 21,
2007.  The plaintiff also complained of experiencing panic attacks, in relation
to which Dr. Ticea recommended breathing exercises and Clinazapan, in addition
to prescribing Ativan sublingually as needed.

[78]        
Dr. Ticea examined the plaintiff on April 12,
2007, for the purpose of completing a report at the request of ICBC.  By this
time the plaintiff had substantially completed the active rehabilitation
program and it was suggested that she was ready to return to work on light
duties.  In the report, Dr. Ticea noted that the plaintiff’s current complaints
were that her left wrist was weak, and she was experiencing neck pain, migraines,
left breast pain, and depression.  Dr. Ticea listed the following as
accident-related clinical diagnoses:  left shoulder soft-tissue injuries, left
wrist sprain, and ruptured left breast implant.  She considered the plaintiff’s
upper back injuries at a Grade II in terms of severity (with Grade I indicating
no physical signs and Grade IV indicating a fracture or dislocation) according
to ICBC’s categories on the report.

[79]        
Dr. Ticea said that on April 12, 2007, when she
completed the report, she was of the view that the injuries sustained by the
plaintiff in the accident were having an impact on her ability to work
full-time, as the plaintiff had advised her that she worked in a factory doing
heavy lifting.  Dr. Ticea recommended that the plaintiff try a gradual return
to work but the plaintiff advised her that there were no light duties available
at her previous employment.

[80]        
On April 26, 2007, Dr. Ticea saw the plaintiff
in relation to migraines, and for a pelvic examination.  She called the
plaintiff back on May 2, 2007, to provide a prescription for a symptom
unrelated to the accident, at which time the plaintiff advised that she had
finished the active rehabilitation program and was doing the exercises at home.

[81]        
On May 20, 2007, Dr. Ticea saw the plaintiff in
relation to migraines.

[82]        
On July 20, 2007, Dr. Ticea saw the plaintiff in
relation to the injury to her right shoulder, in relation to which she had seen
another physician on July 8, 2007.  She was in considerable pain on July 20,
2007, and was having trouble managing the pain with Naproxen and was unable to
take Tylenol 3.  It was shortly after this that Dr. Ticea noted the plaintiff
saw Dr. Wardill and sought the note saying she was completely recovered from
the accident.

[83]        
On August 16, 2007, Dr. Ticea saw the plaintiff
to review the x-ray of her right shoulder.

[84]        
On August 24, 2007, Dr. Ticea saw the plaintiff in
relation to migraines and she reported that she had been seen in the Emergency
Department the previous night.  She was taking Topamax for migraines and would
continue to do so.  She was also taking Ativan sublingually, and Melatonin for
insomnia.

[85]        
On September 7, 2007, Dr. Ticea again saw the
plaintiff, who complained of excruciating pain in her left shoulder related to
the accident.  Dr. Ticea noted that the plaintiff advised that Tylenol 3
helped.

[86]        
The plaintiff then saw Dr. Ticea for four appointments
unrelated to the injuries from the accident between September 19, 2007, and October
24, 2007.

[87]        
Dr. Ticea last saw the plaintiff on December 4,
2007, in relation to continuing problems arising from the accident regarding her
left breast and left wrist.

[88]        
On January 8, 2008, Dr. Ticea saw the plaintiff
for tendonitis in her right shoulder, for which she was to continue with
physiotherapy and take Advil as needed.  Dr. Ticea noted that the plaintiff had
experienced the worst month of her life due to school problems.  She was to
continue to take Adivan and Topamax.

[89]        
As Dr. Ticea had been away until recently, she
examined the plaintiff on July 24, 2009, before testifying.  Prior to that Dr.
Ticea had not seen the plaintiff for a year.  At the recent examination of the
plaintiff Dr. Ticea advised that the plaintiff was still complaining of
difficulties arising from the accident.  Dr. Ticea noted that the plaintiff had
a decreased range of motion in her neck and in her left shoulder and arm, as
well as asymmetry in breast size, with her left breast being smaller than her
right.  She noted that the plaintiff’s right shoulder was not bothering her.

Marion Nihls, physiotherapist

[90]        
Ms. Nihls, a physiotherapist with a specialty in
muscular skeletal rehabilitation, treated the plaintiff from November 22, 2006,
to April 20, 2007.  She described her treatment sessions with the plaintiff and
reviewed the detailed notes she made of each visit.

[91]        
During her initial assessment of the plaintiff
on November 22, 2006, Ms. Nihls noted that the plaintiff’s left breast was
softer and lower than her right, and that she complained of pain in her left
shoulder and upper arm, as well as numbness in both hands.  The plaintiff
described no prior injury to her neck and back but did report a long history of
migraine headaches, including severe ones every three to six months that
required her to attend a hospital emergency for treatment.  During the physical
examination of the plaintiff Ms. Nihls noted that there was a muscle spasm
between her C 4 and C 6 vertebrae, some weakness between the fourth and fifth
fingers on her left hand, and some stiffness and pain in T 4 to T 9 region of
the thoracic spine.

[92]        
Ms. Nihls saw the plaintiff again on November
24, 2006, at which time she complained of increased soreness and localized pain
in the left anterior of her shoulder and down her arm.  On November 29, 2006,
the plaintiff advised that her shoulder had improved after the prior
treatment.  On November 30, 2006, the plaintiff cancelled her appointment
because of a migraine headache.  On December 5, 2006, she apparently called to
advise that she was ceasing treatment until ICBC covered the cost because she
could not afford to continue.

[93]        
The plaintiff resumed physiotherapy on February
27, 2007, at which time she advised she was experiencing frequent migraines,
right neck stiffness, pain in her left arm to her hand, and stiffness and
trouble grasping with her left hand.  She also advised of a burning sensation
in her left breast and that the breast lump was less sore and softer after two
injections from Dr. Horton.  The plaintiff attended several sessions in early
March 2007 before she commenced more frequent attendances as part of the active
rehabilitation program that commenced March 8, 2007.

[94]        
As the active rehabilitation program progressed
Ms. Nihls noted improvement in relation to the plaintiff’s neck, left shoulder
and arm, and gradually in relation to her left wrist.  Ms. Nihls noted in her
interim report, dated April 5, 2007, that the plaintiff had improved in terms
of her strength and level of functional activity.  She was cleared for a
graduated return to work as of April 18, 2007, but had been laid off, and was
planning to go to BCIT in August.

[95]        
The last time Ms. Nihls treated the plaintiff
was April 20, 2007, at which time she noted that her cervical spine had
improved but she continued to feel tightness on the right side at the base of
the neck with left neck rotation.  Ms. Nihls manipulated the T 5 area of the
spine between the shoulder blades and the muscles on the right side of the
neck.  Thereafter, she was seen by another physiotherapist.

[96]        
Ms. Nihls followed up with the plaintiff by
calling her at home on May 29, 2007, which she reported upon in her letter to
ICBC of the same date.  In that letter Ms. Nihls notes “I spoke with Lisa today
and she reported she is managing well and is virtually pain free”.

John J. Banks, rehabilitation consultant

[97]        
Mr. Banks is a rehabilitation consultant with a
specialty in vocational evaluation and work capacity assessment.  He conducted
a work capacity assessment of the plaintiff on August 18, 2008.  In his
detailed report he assessed many different aspects of the plaintiff’s physical
ability to perform many tasks and activities related to her physical ability to
work.

[98]        
Mr. Banks had the following specific
observations in his report regarding the plaintiff’s ability to sit for periods
of time:

Ms. Gregory
demonstrated the ability to continuously sit for variable periods of time
during the assessment, ranging from 33 minutes while involved in upper
extremity static strength testing activities, to 2 hours during the intake
interview. Ms. Gregory did not stand or stretch during the seated intake
interview. No shifting of position was noted while seated however; Ms. Gregory
reported increased neck and left wrist discomfort at the completion of 120
minutes of sustained sitting during the intake interview, and increased left wrist
discomfort change was reported following 33 minutes of continuous sitting while
participating in repetitive upper extremity tasks towards the end of the
assessment day. Overall, Ms. Gregory’s tolerance for brief duration and
prolonged sitting was rated as functional, with increased left wrist discomfort
noted with upper extremity use while seated.

[99]        
In relation to the plaintiff’s ability to reach
overhead in terms of discomfort he noted the following:

Ms. Gregory
demonstrated marginally functional tolerances for sustained overhead reaching
while standing, with increased subjective neck discomfort reported while
working for prolonged periods of time with her arms extended overhead while
standing. Repetitive forward and overhead reaching activities were performed at
a level of speed and efficiency consistent with competitive employment
standards. She demonstrated functional unilateral hand dexterity, scoring
within the above competitive employment standards using the left and right
hands.

[100]    
Mr. Banks did observe some weakness in the
plaintiff’s left hand that he noted as follows:

No weakness was
noted in the right or left hands for grasping/holding during bilateral lifting
and carrying activities in the range from 10-40 pounds however; biomechanical
compensation was noted in the left hand when lifting and carrying in excess of
this range. Functional isometric grip strength was measured in the MEDIUM
strength range for the right and left hands. Isometric pinch strength was also
measured in the MEDIUM strength range for both hands during key grip and
3-point pinch assessment, when compared to industrial standards.

[101]    
Mr. Banks concluded as following about the
plaintiff’s overall physical condition:

From a vocational perspective, the results
of the current assessment suggest Ms. Gregory has demonstrated sufficient body
dexterity and limb coordination but has not demonstrated sufficient strength to
tolerate all of the physical demands of her previous job as a meat packer (NOC#
9462.2: PA=V2,C0,H1,B2,L1,S4), including the related occupations of meat roll
tier, meat portion cutter, poultry preparer, meat cutter, bench woman, meat
trimmer and meat boner. These occupations are considered by the NOC to be HEAVY
(S4) strength occupations, with work activities involving lifting, carrying,
pushing, pulling and handling loads greater than 20 kg (44 pounds); a body
dexterity requirement for standing and/or walking (B2) and; a requirement for
upper limb coordination (L1). Specific limitations relate to a reduced
tolerance for repetitively lifting at a HEAVY (S4) strength level, especially
above shoulder height, with biomechanical breakdown noted when lifting and
carrying weights in excess of 40 pounds. Similarly, Ms. Gregory has exhibited
limitations on activities requiring pushing or weight bearing with the left
wrist as measured during isometric testing on the ERGOS work simulator, as well
as a reduced tolerance for pinching and gripping strength. This places her
functional ability for pushing, pinching and gripping in the MEDIUM (S#)
strength range, with limitations in functional frequency of loading the left
wrist.

The results of assessment indicate that Ms.
Gregory currently is able to perform her current job duties as a new construction
cleaner (NOC# 6661: PA=V2,C0,H1,B4,L1,S3), including the related occupations of
building cleaner, cleaner, cleaning woman light duty cleaner, residence cleaner
and sweeper. These occupations are considered by the NOC to be MEDIUM (S3)
strength occupations, with work activities involving lifting, carrying,
pushing, pulling and handling loads from 10 kg (22 pounds) to 20 kg (44
pounds); a body dexterity requirement for sitting, standing and/or walking as
well as other body positions such as stooping kneeling and crouching (B2) and;
a requirement for upper limb coordination (L1).

Ms. Gregory’s
ability to perform in her current job duties is dependent on her ability to be
able to change position during the work day.  This has allowed her to tolerate
her job duties especially with her limited ability to load the left wrist.

[102]     In his testimony, Mr. Banks reviewed the findings in his report.  He
focused on the plaintiff’s weaknesses, which included that she could not
maintain a functional lateral grasp with her left hand that forced her to use
her wrist or ulna.  He noted signs of neck strain with sitting beyond 120
minutes.  He found the plaintiff had no limitations in terms of her use of her
right hand, but in relation to her left hand within two minutes she would be
compensating for limitations.  According to Mr. Banks if there is a significant
difference in a person’s ability to pronate and supinate a hand it is
indicative of a functional limitation.  In the plaintiff’s case the pronation
of left hand was compromised and she experienced pain in her elbow and in a
distribution down the side of her left hand.

[103]     On cross-examination, Mr. Banks indicated that in his report, when
he states that the pronation and supination of her hand were good, that was
without loading the hands.  He agreed that he had not assessed the plaintiff
prior to accident and that he did not know what her limitations were prior to
it.  He agreed that the National Occupational Classification (“NOC”)
definitions of the job requirements for a meat packer and a new construction
cleaner were not job specific and so they may not apply to the job that the
plaintiff was doing at Hill’s.  He confirmed that he terminated dynamic lifting
because the plaintiff was showing weakness on her left side.  In terms of his
testing for the range of motion in both of the plaintiff’s shoulders, Mr. Banks
considered both shoulders were functional but he noted that if the plaintiff used
her left shoulder there was mild recruitment of other muscles to help.  In
terms of neck flexion, Mr. Banks noted that while performing lateral flexion
there was pulling on the right when bending to the left.

Darren Benning, economist

[104]     Mr. Benning, an economist, was qualified to provide expert opinion
evidence in the area of past and future income loss.  His report assumes that
the plaintiff, absent the accident, would have completed the training necessary
to work as a welder and thereafter would have pursued employment in that
occupation through to an assumed retirement at no later than age 65 years.  It
also assumes that as a result of the accident the plaintiff would continue what
was her current employment at Transparent Glazing, working 40 hours per week at
a wage rate of $15.50 per hour.  In the alternative, he assumed that the
plaintiff will retain and seek employment as a child and youth care
counsellor.  Mr. Benning included various negative contingencies in his
calculations including non-participation in the labour force, unemployment,
working less than fulltime, and premature death.  The plaintiff was 43 years
old at the time he wrote his report.

[105]     Mr. Benning estimates future loss of employment income with the
plaintiff continuing with employment at Transparent Glazing or a comparable
employer as compared to working as a welder to be $323,481.  In the event that
she were to continue after the accident as a child and youth care counsellor as
opposed to a welder, and assuming two years training in relation to the former,
he estimates her future loss of employment income to be $341,089.

[106]     It is relevant to note that Mr. Benning reviewed the plaintiff’s income:
for 2003 and 2004 – $1 per year; for 2005 – $6,872 (of which $4,272 was
reported as T4 Earnings and $2,600 was Other Employment Income); for 2006 –
$18,497 (primarily T4 Earnings); for 2007 – $20,619 (all but $95 of which was
from Employment Insurance benefits); and for 2008 – $22,994 (of which $11,644
was reported as T4 Earnings, $7,238 was Other Employment Income, and $4,112 was
from Employment Insurance benefits).  Mr. Benning reviewed the plaintiff’s
recent employment at Vedder Steel from April 2 to April 23, 2008, her
employment at Fraser Ridge Industries as a construction site cleaner between
April 25 and May 14, 2008, followed by her employment at Transparent Glazing as
a delivery driver, which commenced in September 2008.  He reports that as of
April 20, 2009, when he wrote his report, the plaintiff was on a leave of
absence from Transparent Glazing to care for her son that was anticipated to
last four to six weeks.

[107]     On cross-examination, Mr. Benning admitted that his calculations
were based on a wage rate as a welder of $20 per hour, and to the extent she
was earning $15 per hour at Vedder Steel he overestimated her past loss.  He
said that his census data was based on male welders as there is insufficient
data available for female welders.  He agreed that typically women do have
lower career earnings influenced by time out for child rearing, less tenure and
less experience, and the fact that men tend to work more hours per week than
women even in the same type of employment.  As there was no evidence that the
plaintiff would get her trade certificate in welding he used data for all
welders.

Chandra Mayoh, the plaintiff’s daughter

[108]     Chandra Mayoh, the plaintiff’s daughter (“Chandra”), is 20 years
old.  She is in her second year pursuing a Bachelor of Arts with a major in
criminology.  She lives with her mother and was aware of the accident.  She
recalled seeing her mother the day of the accident when she was complaining
about pain in her neck and left shoulder and arm.  She thought that her mother
took a couple of days off work because her arm was hurting and then she went
back to work.  Chandra recalled that her mother found the pain in her left arm
to be too much, so she applied for medical leave from work for a few months.

[109]     Chandra recalled that as her mother’s pain worsened, she started to
get migraines from the tension in her neck, and to experience sharp pain in her
left breast.  She described her mother asking her to look at the latter’s left
breast when she was naked.  Chandra said that she saw that her mother’s left
breast had changed in size and that it was “now flat” and there was a
significant size difference between her left and right breasts.  She said that
her mother is still bothered by this and that she still experiences pain and
discomfort in both her left arm and left breast.  She has seen her mother get a
sharp pain and lean over and grab her arm.  She said her mother has to rest and
not use her arm.  She understood her mother to take Tylenol and Aspirin and
Topamax for her migraines and that she has lost track of the number of doctors
her mother has attended.  She confirmed that her mother had a very bad migraine
after the prior day in court, and she had to take her to the hospital for a
shot to stop her vomiting.  She indicated that her mother started to take
Topamax for migraines after the accident because she was getting migraines
several times a week, whereas before the accident her mother was getting
migraines once a month or once every couple of months.

[110]     Chandra said that she does not swim with her mother anymore as her
mother cannot rotate her arm, and her mother does not “rough house” with her
little brother because that hurts her arm.  She said her mother has gained 15
pounds since she has stopped swimming.

[111]     Chandra indicated that prior to the accident her mother did the
house cleaning but now she helps out by moving everything that has to be moved.
Chandra said she helps because she is older and because her mother is in pain.

[112]     Chandra has also noticed that her mother is more stressed and less
social since the accident.  She says her mother goes out less with friends now
and that she feels down.  She recalled that after her rehabilitation program
her mother’s injuries got better but then they seemed to return.

[113]     On cross-examination, Chandra indicated that prior to the accident
she was in high school and would keep her own room clean and do her dishes. 
She did not take her brother to school as she was in high school herself.

Irene
Mayoh, the plaintiff’s mother

[114]     Ms. Mayoh, a registered nurse with over 30 years’ experience,
testified in relation to her daughter, the plaintiff.  Ms. Mayoh said that as a
young woman the plaintiff was very physically active.  She was a competitive
swimmer, had many friends, and seemed to be a very happy person.  Prior to the
accident, Ms. Mayoh indicated that the plaintiff had no serious health problems
except migraines, which she managed.  To Ms. Mayoh her daughter seemed fine,
busy with her children, doing her own house work that included washing walls
and vacuuming, and shopping for and carrying the groceries for her family.  She
recalled that the plaintiff wore clothing in a size three or four, whereas
since the accident she wears a size 10 to 12.  She believes that the plaintiff
has gained about 30 pounds since the accident.  Ms. Mayoh recalled that at age
26 or 27 the plaintiff had surgery for cervical cancer.

[115]     Ms. Mayoh recalled that the plaintiff called her the day of the
accident and that she saw her about two weeks afterwards.  At that time, Ms.
Mayoh recalled that the plaintiff complained of pain in her neck and down her
left arm, and weakness in her left wrist.  The plaintiff moved her head
tentatively and complained of pain in her left shoulder and wrist when she
lifted things.

[116]     Ms. Mayoh testified that she noticed that the plaintiff’s injuries
from the accident did not seem to improve.  They appeared to be worsening and
came to affect her mental state.  She observed the plaintiff to become stressed
out and increasingly worried about how she was going to provide for her
children.  The plaintiff continued to complain of pain at the back of her neck,
down her left shoulder and into her left wrist.  She also observed that the
plaintiff still had trouble putting on her seat belt.

[117]     Ms. Mayoh indicated that she was aware that the plaintiff had breast
augmentation surgery in 2005.  She also knew of the plaintiff’s problem with
the left implant bursting “pretty quick right after the accident” after she had
noticed it while taking a shower.  Ms. Mayoh indicated that the plaintiff’s
left breast is really deformed as it resembles “a bag with nothing in it.”  She
also indicated that she was not aware of her daughter having any problems with
her breasts or any deformities in her breasts prior to the accident.  Ms. Mayoh
said that after the accident she helped the plaintiff as much as she could in
terms of helping with her grandson and with household chores, including
laundry, cleaning and cooking.  She indicated that she does not do as much at present
but that she still prepares dinner for the plaintiff and her family about twice
a month.  Ms. Mayoh said that she did not know the cost of repairing the
plaintiff’s left breast, and that her daughter had not asked her for money for
that purpose.

[118]     On cross-examination Ms. Mayoh said that she had never gone with the
plaintiff to a hospital emergency department for treatment for the latter’s
migraines, but she was aware that her daughter had done so.  Ms. Mayoh said she
was with the plaintiff in 2005 for a month when the latter had the breast
implant surgery and changed the dressings for her.  She confirmed that she had
seen the plaintiff’s bare breasts since the surgery and more recently since the
accident.

Fred Chaloner, family friend

[119]     Mr. Chaloner is a long-time family friend of the plaintiff’s.  In
particular, his recently-deceased wife was a very close friend to the plaintiff
for almost 20 years, from the time the plaintiff had her first child.  He said
his wife used to babysit when the plaintiff’s children were young and he would
go over and help her with chores.

[120]     Mr. Chaloner said that he was aware that the plaintiff was in an
accident in 2006 but said she never elaborated on the details.  He said after
2006 she was fairly active in terms of swimming and other activities.  He
encouraged her to go into welding.  He said she was enthusiastic about welding
and did not need a lot of encouragement.  He recalled that once she finished
the welding course and got a job as a welder she would come over and complain
that her back, shoulder and breasts were giving her trouble.  She would take
Tylenol and then go home.  She indicated that the job at Vedder Steel was “just
killing her”.  He noticed she had slowed down and was not as active as she had
been.  She seemed moodier, less upbeat, and quieter when she came over to
visit.  Whereas the plaintiff and his wife got along perfectly before the
accident, he recalled that they had a few squabbles after it.  He was aware
that the plaintiff was not feeling well and that something had gone wrong with
her breast.  He also recalled that after she was working for the window
business she would drop by to see him after work and ask for a Tylenol.  She
talked about having to quit that job.  Mr. Chaloner’s impression was that prior
to the accident she was “a fireball”.  His view was that she was no longer that
way and seemed to have slowed down a lot.

[121]     On cross-examination Mr. Chaloner agreed that while his wife had
cancer and during the times when the plaintiff seemed moody, he was busy
working, and thus, did not interfere.  He recalled that the plaintiff would
complain about her shoulder and her back and always talked about trying to get
the money to pay for cortisone shots.  He understood she had to leave her
employment as her shoulder would not take it.

Evidence
called on behalf of the defendant

Dustin
Penner, the defendant

[122]     Mr. Penner testified that he was travelling east in his Volkswagen in
stop and go traffic on the Mary Hill bypass between 2 and 4 p.m. on September
11, 2006, when he noticed an accident on the other side of the road.  It
distracted him and when he looked back it was too late for him to avoid a
collision with the rear bumper of the plaintiff’s vehicle directly in front of
him.  He estimated his speed to have been about 10 to 15 kilometres per hour
when he slammed on his brakes as his vehicle stuck the plaintiff’s vehicle.  He
recalled getting out and checking the damage, a police officer attending to
take statements, and that he received a ticket for several infractions.  He
said that he did not talk to the driver of the other vehicle at the scene.

[123]     On cross-examination Mr. Penner admitted that he was in first gear
and that 10 to 15 kilometres per hour was probably his minimum speed.  He
admitted that he had his foot off the clutch and had just begun to accelerate
before he hit the brake.  He admitted that he could have been travelling up to
a speed of 25 kilometres per hour at that point.

Leonard Solstad, an estimator with ICBC

[124]     Mr. Solstad, an estimator with ICBC, examined the defendant’s
vehicle on November 7, 2006, and estimated the amount of damage and the costs
of repair.  Mr. Solstad considered the damage to the Volkswagen to be cosmetic
damage to the left side and centre of the hood, which had buckled.  The grille
was broken and had already been replaced by the defendant.  The left signal
light was broken and there was some damage to the center and front of the left
bumper.  He estimated   the cost of repair to be $1,069.76.  He estimated that
the cost of the grille repaired directly by the defendant to be from $36
upwards depending on the quality of the replacement part.

Dr. Karen Wardill, a physician in the
same clinic as Dr. Ticea

[125]     Counsel for the defendant tendered the video deposition evidence of Dr.
Wardill at trial.  She testified that she saw the plaintiff on several
occasions at the Kensington Clinic where Dr. Ticea also worked.  Dr. Wardill recalled
that she saw the plaintiff on August 2 and again on August 3, 2007, and then on
a number of subsequent occasions.

[126]     On August 2, 2007, Dr. Wardill had a discussion with the plaintiff
because she wanted a note saying she was fully recovered from the accident and
able to return to work.  Dr. Wardill provided the note.  The next day she saw
the plaintiff again when she provided a reworded note that specifically
referred to the plaintiff as physically able to perform all the duties of a
welder.

[127]     Dr. Wardill recalled that she also treated the plaintiff on several
occasions later in August 2007 for an injury to the plaintiff’s right shoulder
(first treated in July 2007), for which she prescribed Tylenol 3.  She again
saw the plaintiff on November 11, 2007, for “chronic shoulder tendonitis” and
again on July 25, 2008, for anxiety and panic attacks, as well as a complaint
of stiffness in her left wrist.  On October 18, 2008, she referred the
plaintiff to a psychiatrist.

[128]     On cross-examination, Dr. Wardill agreed, based on the notes on her
file, that she did not physically examine the plaintiff on August 2, 2007. 
Therefore, her notation referencing the plaintiff’s return to work was based on
what the plaintiff told her.  She recalled that the purpose of the visit was
for the plaintiff to obtain a note permitting her to return to work and the
purpose of the visit the next day was to obtain a reworded note.  Dr. Wardill
indicated that she could not recall what kind of work the plaintiff was
returning to.

Findings as to Reliability and
Credibility

[129]     First, I will set out my findings in relation to the testimony of
the plaintiff.

[130]     At trial the plaintiff did her best to be a reliable and credible
witness.  She presented as an unsophisticated, rather naive person who was
generally truthful, at times against her own interest.  It is clear that her
life preceding the accident and since is very stressful for many reasons
unrelated to the accident.  However, the accident has added to her stress and
her financial concerns as it interrupted and ultimately caused her to lose her
employment at Hill’s.

[131]     I accept that from the accident until September 2007, a period of 12
months, the plaintiff experienced considerable pain, discomfort, weakness, and
limitations on movement in relation to the soft tissue injuries to her neck and
left arm and shoulder as she described.  This time frame recognizes the
plaintiff’s attendances on Dr. Wardill in early August 2007 and a further visit
to Dr. Ticea on September 7, 2007, when she complained of pain and discomfort
in relation to injuries sustained in the accident.  It also takes into account
a further period of time to recover after the plaintiff reported to Ms. Nihls
on May 29, 2007, that she was “managing well” and was “virtually pain free”.

[132]     I also accept that the plaintiff experienced considerable additional
pain and discomfort associated with the injury to her left breast and the
treatment of the necrotic fat, as well as the ongoing disfigurement.  I do not
doubt that for the plaintiff to continue to live with the ruptured left breast
implant has added considerable stress and pain to an already complicated and
difficult life.

[133]     However, I find that the plaintiff also was prone to exaggerate the
severity and duration of some of her symptoms, including the level of pain and
the degree of incapacity she experienced, particularly in relation to her
migraines.  If the migraines had truly approached the frequency and severity
she described after the accident, she would have been unable to function at
all.  On the totality of the evidence I do not accept that injuries she
sustained in the accident exacerbated her migraines to the extent she
described, or that the migraines she experienced after September 2007 to the
present are related to the accident.

[134]     I accept that the injury to her left breast, the trauma that
produced the lump of necrotic far and the ruptured implant, was caused by the
accident as I will explain later.  I accept the plaintiff’s evidence that the
pain, the burning, tingling, and electrical sensations that she has experienced
in her left breast, and the ongoing discomfort, worry, stress, humiliation and
lack of self-confidence, due to trying to go about her daily life with a
collapsed breast implant still in her chest are considerable.

[135]     I remain somewhat puzzled as to how it was that the Medical Services
Plan was not called upon to cover the removal of the collapsed implant, or why
the plaintiff was not able to borrow sufficient funds in the past three years
to have the surgery to replace it, either from her mother, other family
members, or even from her good family friend, Mr. Chaloner, in the event that
she truly could not afford to pay for it herself.  However, this matter was not
canvassed in any detail before the Court, except that the plaintiff made it
clear that she was of very limited means when it came to supporting herself and
her children.

[136]     In terms of the plaintiff’s testimony about her employment and
aspiration to become a welder, I accept that she had the goal to become a
welder, and was determined to take the training and try it.  However, it is
significant in my view that the plaintiff’s planning to take the welding course
commenced about six months prior to August 2007, which means that practically
speaking she anticipated being able to take it as early as January 2007.  This
course was further training that she chose to do and it obviously required
significant physical strength.  It seems that she was prepared to undertake the
course with a collapsed breast implant in her chest.  She pursued funding to
support her training and saw Dr. Wardill in early August 2007, not once but
twice, to get the appropriately-worded note to indicate that she was recovered
from the accident to the extent she could do the heavy physical work of a
welder.

[137]     I do not accept based on her employment history prior to the
accident, to the extent it was disclosed, or her conduct after she took the
course and worked for less than a month as a welder at Vedder Steel, that she
was committed to a long-term future career in welding, or indeed, in any
particular occupation or employment.  Her pre- and post-accident employment history
as revealed by the evidence does not support any such inference.  Three weeks
on the job as a welder at Vedder Steel does not demonstrate commitment to a
career in welding, particularly when the next job the plaintiff sought and
obtained had nothing to do with welding.

[138]     The only reasonable inference to be drawn from her conduct is that,
based on how she felt in August 2007 and after September 7, 2007, when she saw
Dr. Ticea for accident-related pain, is that she was sufficiently recovered to
undertake such training.  This is so even after the injury to her right
shoulder in July 2007 that required significant medication for pain and
physiotherapy.  I find that logically this must mean she was no longer
suffering from the considerable ill effects she attributed to the accident,
except in relation to her left breast, which she had decided to endure.

[139]     I further find that the plaintiff’s evidence about an increased
intensity and frequency of migraine headaches after the accident is unreliable,
as is her evidence about the level of physical activity she was able to
sustain, as shown in her contradictory testimony about being able to go swimming. 
I am of the view that her accident-related injuries were compounded by the
considerable stress and worry in her life related to being able to care for and
be the sole supporting parent of her children, particularly her young son.  My impression
is that these stresses, unrelated to the accident, compounded by the discomfort
and worry caused by her ruptured breast implant and how she was going to manage
its repair, had a significant impact on her being able to deal with the
physical and mental stresses of the work place.  I find they contributed to her
exaggeration of the severity and frequency of her migraine headaches after the
accident.  To accept her evidence as to her migraine headaches after the
accident would essentially mean that she was completely debilitated by them,
which obviously she was not.  I do, however, accept that the pain from her
soft-tissue injuries and her ruptured implant caused some increase in the
intensity and frequency of her migraine headaches from the date of the accident
to September 2007.

[140]     I also accept the plaintiff’s testimony regarding her observations
in relation to her ruptured breast implant and the significant associated
ongoing pain and discomfort in light of the corroborative and highly reliable,
independent evidence of Dr. Horton, which I accept in its entirety.

[141]     In terms of the testimony of the other witnesses called on behalf of
the plaintiff and the defendant I find that each testified in a reliable and
credible manner, and I accept their evidence.

Findings
and Analysis

Finding as to Causation Regarding the
Breast Implant Rupture

[142]     The plaintiff submits that the evidence of the plaintiff and Dr.
Horton establishes that a cause of the ruptured breast implant was the
accident.

[143]     The defendant, on the other hand, submits that causation as between
the accident and the plaintiff’s ruptured breast implant has not been
established.

[144]    
The legal test for causation in civil cases was
discussed by Major J. in Athey v. Leonati, [1996] 3 S.C.R. 458 [Athey]
at 466-467:

Causation is established where the plaintiff
proves to the civil standard on a balance of probabilities that the defendant
caused or contributed to the injury:  Snell v. Farrell, [1990] 2 S.C.R.
311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).

The general, but not conclusive, test for
causation is the "but for" test, which requires the plaintiff to show
that the injury would not have occurred but for the negligence of the
defendant:  Horsley v. MacLaren, [1972] S.C.R. 441.

The "but for" test is unworkable
in some circumstances, so the courts have recognized that causation is
established where the defendant’s negligence "materially contributed"
to the occurrence of the injury:  Myers v. Peel County Board of Education;
[1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615
(H.L.); McGhee v. National Coal Board, supra. A contributing factor is material
if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw,
supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d
[1989] 2 S.C.R. 979.

In Snell v. Farrell, supra, this Court
recently confirmed that the plaintiff must prove that the defendant’s tortious
conduct caused or contributed to the plaintiff’s injury. The causation test is
not to be applied too rigidly. Causation need not be determined by scientific
precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All
E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is
"essentially a practical question of fact which can best be answered by
ordinary common sense". Although the burden of proof remains with the
plaintiff, in some circumstances an inference of causation may be drawn from
the evidence without positive scientific proof.

It is not now
necessary, nor has it ever been, for the plaintiff to establish that the
defendant’s negligence was the sole cause of the injury. There will frequently
be a myriad of other background events which were necessary preconditions to
the injury occurring.  […]As long as a defendant is part of the cause of an
injury, the defendant is liable, even though his act alone was not enough to
create the injury. There is no basis for a reduction of liability because of
the existence of other preconditions: defendants remain liable for all injuries
caused or contributed to by their negligence.

[145]     Causation must be determined prior to the assessment of damages, and
must not be confused with the rules of assessing damages once causation is
established: Blackwater v. Plint, 2005 SCC 58 at para. 78.

[146]     Applying the test set out in Athey, I must decide whether the
evidence establishes that the accident caused the plaintiff’s injuries to her
left breast, in terms of the rupture of her breast implant and the formation of
the necrotic lump, as well as the pain and other discomfort she experienced in
the area of her left breast.  It is not necessary that the accident be the
sole cause, or that causation be established to scientific precision.  To
succeed the plaintiff must prove on a balance of probabilities that the
accident was a contributing factor, outside the de minimis range.

[147]    
In Wilson v. MacKay, [1993] B.C.J. No.
739 (S.C.) [Wilson], Dorgan J., after reviewing the judgment of Sopinka
J. in Snell v. Farrell, [1990] S.C.J. No. 73, considered the burden of
proof and the inference of causation in the context of alleged medical
malpractice that resulted in breast asymmetry and scarring following breast
reduction surgery.  Dorgan J. stated the following at para. 89:

In summary, the
plaintiff need not prove causation with scientific precision.  The plaintiff
may present evidence which, if believed, may lead to an inference adverse to
the defendant. 

The learned judge then found that the
plaintiff had not discharged the onus of proof upon her, except in relation to
an extra incision made to her right breast.

[148]     In the present case I accept the testimony of the plaintiff that
prior to the accident she had symmetrical breasts after breast augmentation
surgery.  I accept that she noticed that she had a substantially smaller left
breast about three weeks after the accident, and that since the accident she
had experiencing pain and burning sensations in the area of her left breast.  I
further accept her evidence that at the same time she found the lump in her
left breast.  Several weeks later, Dr. Horton diagnosed the lump to be a lump
of necrotic fat due to trauma in the area of the ruptured left breast implant. 
When I combine their evidence and consider that the plaintiff as the driver of
a motor vehicle was wearing the usual shoulder/lap seatbelt across the area of
her left upper body including her left breast, I find without hesitation that
the plaintiff has established that the accident was at least a partial cause of
rupture of the left breast implant and the associated complications.  Thus, the
defendant is liable for the injuries sustained by the plaintiff to the area of
her left breast, including the rupture of the implant.

[149]     In relation to the soft-tissue injuries suffered by the plaintiff to
her neck, left shoulder, arm and wrist caused by the accident, the defendant
submits that the plaintiff was substantially recovered by August 2007 when she
enrolled in the welding course.  Thus, any continuing weakness, pain, or disability
that the plaintiff claims continues to exist in her left arm and wrist past
that time, the defendant submits is not proven to be caused or contributed to
by the accident.  On the totality of the evidence before me I agree with that
submission, except that I find the date to be in September 2007 after her visit
to Dr. Ticea on September 7, 2007.  I find that the preponderance of the
evidence points towards the plaintiff being substantially recovered from
injuries to her neck, left shoulder, and left arm as of August 2007, when she
then injured her right arm, and in any event by mid-September 2007.

[150]     I find that the continuing weakness in her left wrist and hand as
identified by Mr. Banks is not established to be related to the accident. 
While he identifies this weakness and restricted motion in the plaintiff’s left
wrist and hand well after August 2007, there is no reliable medical evidence to
support any continuing weakness and disability beyond that date as being caused
or contributed to by the accident.  I do not find the plaintiff to be a sufficiently
accurate or reliable witness to accept her evidence that this was not a
pre-existing problem or caused by some unrelated activity.  It is also possible
the disparity may be related to right-hand dominance, if the plaintiff is
indeed right-handed.  I note that Mr. Banks assessed the plaintiff on August
18, 2008, which was almost two years after the accident and after the intervening
events of the plaintiff taking the welding course and attempting to work as a
welder.

[151]     I also find that Dr. Ticea’s evidence does not establish an ongoing
weakness in the plaintiff’s left wrist beyond September 7, 2007.  This is
because the plaintiff’s complaints regarding pain in her neck, left shoulder,
arm and wrist are only sporadic at best after this point and were in the main
eclipsed by other presumably more pressing medical concerns unrelated to the
accident.  It is equally likely that the plaintiff’s complaints of pain in
relation to those areas of her body have been caused or substantially
aggravated by taking the welding course and trying to work as a welder, an
occupation for which she may have been not physically well-suited from the
outset.  I also note that the nerve conduction studies sought by Dr. Ticea in
relation to injuries sustained in the accident were apparently negative.  No
neurological or other expert medical evidence was called to support an
inference that the plaintiff’s ongoing weakness in her left wrist and hand is
related to the accident.  It is also possible that continuing to have the
ruptured left breast implant in her chest has contributed to pain in her left
shoulder and arm.  There is, quite simply, insufficient evidence to establish
that the plaintiff’s present complaints and some weakness in her left wrist and
hand are related to the accident, except for her specific discomfort in the
area of her left breast.

[152]     Therefore, I find that the plaintiff suffered soft tissue, whiplash-related
injuries to her neck, left shoulder, arm and wrist in the accident and that
these injuries, classified at a “Grade II” by Dr. Ticea caused her considerable
pain and discomfort that abated with the active rehabilitation program she took
in March and April 2007 to the point that she was substantially recovered by
September 2007.  Any remaining pain or residual weakness in the plaintiff’s
left wrist after that time is not proven to be caused in whole or in part by
the accident.

[153]     In relation to her ruptured left breast implant, I find that the
plaintiff has experienced considerable pain, discomfort, disfigurement, and
mental stress and anxiety that continue to the present time.

Damage
Awards Sought by the Plaintiff

[154]     I turn now to determine the extent of the losses suffered by the
plaintiff proven to arise from the accident and the appropriate quantum of
damages in relation to these losses under the various heads of damages claimed.

[155]     Counsel for the plaintiff submits that in this case an appropriate
range of the total damages under all the headings is in the range of $506,949
to $691,595.  He submits that significant awards under the various heads of
damages are warranted because of the debilitating and painful injuries the
plaintiff sustained in the accident and their protracted impact on her life, in
terms of pain, loss of enjoyment, limitations on physical exercise and
housekeeping, loss of income from employment, and the loss of greater income,
job security, and job satisfaction that she was unable to achieve due to being
unable to work as a welder.

[156]     Counsel for the defendant takes a completely different view of this
case.  Having submitted that the plaintiff’s ruptured breast implant is not
proven to have been caused by the accident, and that the accident was a minor
one with minimal damage to both vehicles and the only sign of physical injury
to the plaintiff being the bruising to her left arm, he submits that an
appropriate award in all the circumstances is in the range of $25,000 for
non-pecuniary damages.  He consents to an award for past wage loss of $9,336 in
gross income.  Otherwise, it is submitted on behalf of the defendant that no
other damage awards are appropriate on the facts of this case.

(a)      Non-pecuniary loss

[157]     The plaintiff seeks a total award of non-pecuniary damages in the
range of $153,881 to $194,213, comprised of an award of non-pecuniary damages
in the range of $58,881 to $81,363 related to the plaintiff’s ruptured left
breast implant; an award in the range of $60,000 to $77,850 in relation to the
plaintiff’s soft-tissue injuries and the increased frequency and intensity of
migraine headaches she claims to have suffered after the accident, and an award
in the range of $35,000 for emotional distress.

[158]     As stated, the defendant’s position is that a total award for
non-pecuniary damages in this case ought to be in the range of $25,000.

i)        The ruptured left breast
implant

[159]     To support an award in the range sought, the plaintiff relies upon
the following authorities: Hollis v. Birch, [1990] B.C.J. 1059 (S.C.) [Hollis];
Rennick v. Miller, [1996] B.C.J. 1229 (S.C.) [Rennick]; and Wilson.

[160]     I have reviewed the above cases and considered their similarities
and differences to the case at bar.  In Hollis, a 1990 decision, the
judge awarded $50,000 in relation to non-pecuniary damages arising from the
surgical replacement of negligently manufactured breast implant.  In Rennick,
a 1996 decision, the award was $45,000 in the case of a left breast implant that
was ruptured in a motor vehicle accident.  The plaintiff in that case required
both implants to be surgically replaced and suffered left-arm strain and
bruising that resolved shortly, as well as headaches.  In Wilson, a 1993
decision, the plaintiff was awarded $40,000 for disfigurement of her right
breast that required corrective surgery.  She also suffered ongoing physical
and psychological pain.

[161]     In the present case the left implant will be replaced.  It is not
known if the right implant will also have to be replaced to achieve breasts of
a similar size.  The plaintiff has endured considerable pain and suffering, the
painful and difficult injections of the lump of necrotic fat by Dr. Horton. 
She has also had to endure the ongoing discomfort and emotional and
psychological upset and distress caused by the ruptured implant remaining in
her chest and the very significant disparity in the size of her breasts for a
period of three years and three months.  In all the circumstances I find that a
fit and proper award in non-pecuniary damages for this injury is $65,000.

ii)        Soft-tissue
Injuries and Migraine Headaches

[162]     To support an award in the range of $60,000 to $77,850, the
plaintiff relies upon the following authorities: Andres v. Leslie, 2005
BCSC 1096 [Andres]; Bancroft-Wilson v. Murphy, 2008 BCSC 1035 [Bancroft-Wilson];
Ghataurah v. Fike, 2008 BCSC 533 [Ghataurah]; Heartt v. Royal,
2000 BCSC 1122 [Heartt]; Heppner v. Zia, 2008 BCSC 782 [Heppner];
Klein v. Dowhy, 2007 BCSC 1151 [Klein]; Kuskis v. Tin, 2008
BCSC 862 [Kuskis]; and Pratt v. Barlow, 2008 BCSC 1764 [Pratt].

[163]     To support an award in the range the defendant finds to be
appropriate, namely in the range of $25,000, the defendant relies upon the
following authorities: Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) [Price];
Reyes v. Pascual, 2008 BCSC 1324 [Reyes]; Job v. Van Blankers,
2009 BCSC 230 [Job]; Aulakh v. Poirier, 2006 BCSC 2027 [Aulakh];
and Garcha v. Gill, 2008 BCSC 1756 [Garcha].

[164]     Having reviewed the authorities provided in the context of the
present case with regards to the plaintiff’s the soft-tissue injuries to her neck,
left shoulder, and left arm and wrist, and taking into account a modest
increase in the frequency and severity of her chronic and pre-existing migraine
headaches, from which I have found she was substantially recovered in September
2007, I find that an award of $30,000 is appropriate as non-pecuniary damages
for these injuries.

iii)       Emotional Distress

[165]     Plaintiff’s counsel seeks an award of up to $35,000 for emotional
distress.  He submits that the plaintiff has suffered significant mental
distress and psychological problems as a result of the injuries she sustained
in the accident, most specifically in relation to the rupture of her left
breast implant and the complications arising from it.  He submits that the
testimony of Mr. Chaloner and the plaintiff’s daughter, Chandra Mayoh, supports
the testimony of the plaintiff in this regard.

[166]     In her testimony, the plaintiff said that she has suffered periods
of depression, sadness, distress, and lower-self esteem from the injuries she
sustained in the accident, her ongoing pain in her left shoulder and reduced
mobility in her left wrist, and increased problems with migraines, in addition
to the stress, worry, and discomfort arising from her collapsed left breast
implant.  Her evidence is that feeling depressed, sad, and in pain has caused
her to withdraw socially, impacted negatively on her relationships with her children,
and prevented her from dating and exercising as she has in the past.

[167]     Her claim under this head of damages is not supported by any
medical, psychiatric or psychological evidence.  I note that Dr. Ticea referred
the plaintiff to a psychologist but the plaintiff said that she could not
afford to go, and did not attend counselling.  Although the plaintiff was
referred to a psychiatrist, Dr. Rana, there is no evidence from this person.

[168]     Damages for psychological injuries were recently discussed by the Supreme
Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 [Mustapha]
at para. 9:

[P]sychological
disturbance that rises to the level of personal injury must be distinguished
from psychological upset. Personal injury at law connotes serious trauma or
illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith,
at p. 189; Linden and Feldthusen, at pp. 425-27. The law does not recognize
upset, disgust, anxiety, agitation or other mental states that fall short of
injury. I would not purport to define compensable injury exhaustively, except
to say that it must be serious and prolonged and rise above the ordinary
annoyances, anxieties and fears that people living in society routinely, if
sometimes reluctantly, accept. The need to accept such upsets rather than seek
redress in tort is what I take the Court of Appeal to be expressing in its
quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R.
(3d) 228 (C.A.): "Life goes on" (para. 60). Quite simply, minor and
transient upsets do not constitute personal injury, and hence do not amount to
damage.

[169]    
That case dealt with a tort where there was no
physical injury at all, but the discussion of compensable injury is relevant
nonetheless.  In a very recent case, Kotai v. Queen of the North (The),
2009 BCSC 1405, Joyce J. conducted a very thorough review of the case law
around emotional distress, including Mustapha, when determining whether
damages for emotional distress would result from the sinking of a ferry that
the plaintiffs were aboard and concluded, at para. 69:

Accordingly, I
conclude that there remains a requirement that the claimants prove not just
psychological disturbance or upset as a result of the defendant’s negligence
but also that their psychological disturbance rises to the level of a
recognizable psychiatric illness.

[170]     Based on these cases, I decline to make a separate award of damages
for the plaintiff’s emotional distress.  The plaintiff simply did not provide
any evidence which suggests that her emotional distress came to the level of a
recognizable psychiatric illness.  Nor do I attribute her emotional distress
entirely to the accident and her collapsed breast implant, but also to other
life stressors including her separation, being a single parent, financial
worries, problems with her son, and her lack of success in the welding trade,
all of which I find to be unrelated to the accident.  In addition, to my mind,
the specific claims above for non-pecuniary damages by definition include a
measure of pain and suffering related to the injuries sustained in the accident
and their aftermath, including in relation to the ruptured breast implant.

(b)      Loss of Future Income and Future
Earning Capacity

[171]     The plaintiff seeks an award in the range of $300,000 to $400,000 for
loss of future income and future earning capacity as a result of injuries she
sustained in the accident.  She relies on the approach taken by Finch J.A., as
he then was, in Pallos v. Insurance Corporation of British Columbia
(1995), 100 B.C.L.R. (2d) 260 at paras. 24-27.  In addition, the plaintiff
relies upon Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.) at
399; Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) at 59; Rosvold
v. Dunlop, 2001 BCCA 4 at para. 9; and Kuskis at paras. 151-154.

[172]     The defendant’s position is that there is no evidence upon which to
make an award for loss of future earning capacity.  The defendant refers to the
following authorities in relation to future income loss: Job at para. 47;
Steward at para. 14; Bedwell v. McGill, 2008 BCCA 6 [Bedwell];
and Chang v. Feng, 2008 BCSC 49 at paras. 73-79 [Chang].

[173]     The law in British Columbia around the awarding of damages for loss
of future earning capacity has been interpreted differently over the last
fifteen years, with differences between a “capital asset” approach and a
“future possibility” approach.  However, two recent Court of Appeal decisions have
given strong direction to trial judges in the way in which these damages should
be determined.

[174]     In Rosvold, Huddart J.A. reviewed the principles relating to
these awards and stated, at para. 8, that an “award for loss of earning
capacity is based on the recognition that a plaintiff’s capacity to earn income
is an asset which has been taken away… What is being compensated is not lost
projected future earnings but the loss or impairment of earning capacity as a
capital asset”.  This has been referred to as the capital asset approach. 
Huddart J.A. continued, at para. 10, to canvas several other cases to come up
with a list of four factors the trial judge should consider in this regard:

1.         whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

2.         whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

3.         whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to him, had he not been injured; and

4.         whether the
plaintiff is less valuable to himself as a person capable of earning income in
a competitive labour market.

[175]     However, the capital asset approach appears to have been overtaken
in two more recent Court of Appeal decisions.  In Steward, a 2007
decision, the trial judge found that the plaintiff may have earned as much
in the future as he would have if not injured in his current profession, but
awarded $50,000 for “compensation for the impairment of his earning capacity in
other occupations that may now be closed to him.”  The Court of Appeal rejected
this analysis, and held, at para. 17, that “the claimant bears the onus to
prove at trial a substantial possibility of a future event leading to an
income loss, and the court must then award compensation on an estimation of the
chance that the event will occur” [emphasis added].  Donald J.A. went
on to hold that because there was no other realistic alternative occupation
that would be impaired by the plaintiff’s injuries, the claim for future loss
must fail, and reduced the award to zero.

[176]     Then,
in Bedwell, a 2008 decision, the trial judge found that
the plaintiff’s injuries did not make her less marketable, less valuable, or
less capable overall of earning income from all types of employment.  The Court
of Appeal upheld the trial judge and stated, at para. 53, that “it was necessary
for the appellant to have proven a substantial possibility of a future
event leading to an income loss” [emphasis added], and that based on the
findings of the trial judge and “lack of evidence that such injuries could lead
to a future income loss, it follows that she did not prove such a substantial
possibility”.

[177]     The confusion between the two approaches was discussed by Bauman J.,
as he then was, in Chang.  After reviewing Steward, Bauman J.
held, at para. 76, that Donald J.A.’s reasons “appears to be an express
direction to first enquire into whether there is a substantial possibility of
future income loss before one is to embark on assessing the loss under either
approach to this head of loss, in particular, under the capital asset approach
as well”.

[178]    
Another recent decision discussed the factors
identified in Rosvold, and their relevance to the analysis.  In Job,
Ker J. did not decide whether to use the capital asset approach or the future
possibility approach, but found, at para. 134, that to be able to claim any
damages under either approach:

[T]he plaintiff
must put forward cogent evidence that she has been rendered less capable
overall of earning income from all types of employment, that she is less
marketable, that she cannot take advantage of job opportunities she otherwise
might have, or is less valuable as a person capable of earning income.

[179]     Given this case law, I find that in order to succeed in her claim
for loss of future income, the plaintiff must first prove a substantial
possibility of a future event leading to an income loss.  This possibility can
be proven with reference to the four factors identified by Huddart J.A. in Rosvold. 
If the plaintiff proves that possibility, it is then open to the Court to value
that loss based on either the capital asset approach or based on what the
plaintiff would have earned but for her injuries.

[180]     I find that the evidence placed before the court falls significantly
short of establishing that her injuries from the accident have resulted in a
substantial possibility of a future event leading to an income loss.  I have
come to this finding with reference to the four factors referred to in Rosvold.
Firstly and as indicated previously, I am not satisfied that the residual
weaknesses identified by Mr. Banks in the plaintiff’s left wrist and hand were
caused or contributed to by the accident.  On the evidence those would be the
injuries that would render the plaintiff less capable overall of earning income
in the future.  Second, given that I have found that she was substantially
recovered from the soft-tissue injuries by September 2007, with the exception
of the replacement of the left breast implant yet to be repaired, there is no
evidence that she is less marketable as a result of injuries sustained in the
accident, as there is no suggestion that the implant surgery will leave her
with a lasting injury or deficit that will impact future employment.  Third, in
terms of job opportunities that she otherwise would have taken advantage of
absent injuries from the accident, there is very little evidence of the
plaintiff’s work history prior to the accident before the court with the
exception of her year of employment as a meat packer at Hill’s immediately
preceding the accident.  Her income in recent past years does not lend support
to an inference that the plaintiff has job opportunities available that are
likely to be adversely impacted by injuries sustained in the accident.  She
reported to Mr. Banks that she had worked previously for an unspecified time as
a bartender but no details were provided.  Her plan to become a welder did not
materialize beyond her struggling with the training and less than a month of
welding employment.  I find that it is too big a leap to assume that the
plaintiff would have worked for many future years as a welder, or indeed
regularly in any job or occupation, and then to assess loss of future capacity
based on the projections by Mr. Benning.

[181]     For these reasons I decline to award any amount for loss of future
income and future earning capacity.

(c)      Past
Wage Loss and Past Loss of Opportunities

[182]     The plaintiff and the defendant have agreed that the plaintiff lost
$9,336 in gross income due to being unable to work after the accident, resulting
in a net figure of approximately $8,400.  Accordingly, I award $8,400 in past
wage loss.

(d)      Loss of Housekeeping Capacity

[183]     The plaintiff claims damages for loss of housekeeping capacity in
the range of $17,235 to $40,392.  This is based on the claim that she is less
able at present and in the future to clean her house and perform the household
duties as she did prior to the accident.  The proposed range is based on a cost
of $15 per hour with five hours a week being required and then projections of
the future costs over the next five, ten, and 15 years, discounted for present
value.

[184]     The defendant submits that the evidence of the plaintiff was that
she was able to do her own housekeeping, just with some additional difficulty.

[185]     The law recognizes that a plaintiff whose ability to perform
housekeeping services is diminished in part or in whole ought to be compensated
for that loss; that the loss of housekeeping ability is that of the plaintiff
and not her family; and that when family members have gratuitously done the
work that the plaintiff can no longer do and the tasks they perform have a
market value, that value provides a tangible indication of the loss the
plaintiff has suffered which enables the court to assign a monetary value: Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652 (B.C.C.A.) leave to appeal to S.C.C.
refused, [1995] S.C.C.A. No. 263; McTavish v. MacGillivray, 2000 BCCA
164 [McTavish].

[186]     However, in the present case, given that I have found that the
plaintiff was substantially recovered from the accident by September 2007, I
must dismiss her claim for loss of future housekeeping capacity.

[187]     In terms of replacement housekeeping services performed for the
plaintiff by her daughter from the date of the accident to September 2007, a
period of 12 months, the evidence before the court is not specific as to the
number of hours  spent.  Nor does it provide a clear list of the kinds of tasks
the plaintiff’s daughter assumed in her stead beyond shopping for groceries,
driving her younger brother to school and, as her mother recovered, moving
heavy items for cleaning.  There is no indication of the frequency with which
she performed these tasks or the time she spent.  Without this type of evidence
I find that I am unable to quantify and value the replacement services provided
by the plaintiff’s daughter to assist the plaintiff during this 12 month period. 
Therefore, I am unable to make a specific award to compensate the plaintiff for
these housekeeping tasks, as is contemplated in McTavish at para. 68.

(e)      Cost of Future Care

[188]     The plaintiff claims future care costs related to the replacement of
the ruptured left breast implant ($5,883), and double that amount if both
breasts require replacement implants to achieve symmetry.

[189]     She also seeks an award for future care costs for her on-going
injuries to cover medications (Advil, Topimax, Imitrex, and a nasal spray) and
water therapy, physiotherapy and a gym membership, calculated over the next
five, ten, or 15 years, resulting in a present value range of $28,776 to
$59,316.

[190]     The defendant submits that there is no evidence upon which to base
an award for future care costs.

[191]     The test to be applied when the court considers awarding the cost of
future care is set out by McLachlin J., as she then was, in Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 84 [Milina] as follows:

The test for determining the appropriate
award under the heading of cost of future care, it may be inferred, is an
objective one based on medical evidence.

These authorities establish:

(1)        that
there must be a medical justification for claims for cost of future care; and

(2)        that the claims must be
reasonable.

[…]

The award for
cost of care should reflect what the evidence establishes is reasonably
necessary to preserve the plaintiff’s health.

[192]     Given that I have found that the plaintiff has not proven on-going
injury related to the accident after September 2007, I find that there is no legal
basis for an award in relation to the future care costs as sought by the
plaintiff, with the exception of the cost to replace the ruptured left breast
implant.

[193]     In relation to the surgery required to replace the left breast
implant, I award $5,883 as a onetime cost for that purpose.  Based on the
evidence it is likely that the plaintiff will require medication related to
that surgery for pain management and to reduce the risk of infection.  As no
amount is specifically allocated to this purpose but rather there are much
larger amounts claimed as part of the plaintiff’s claim for future care,
somewhat arbitrarily I award the plaintiff an additional $500 for medications
related to the breast implant replacement surgery, for a total amount of
$6,383.  However, I decline to order double that amount for future breast
implant replacement surgery to cover the possibility that the plaintiff’s right
breast implant may also have to be exchanged to achieve breasts of more or less
equal size.  The evidence of Dr. Horton acknowledges that as a possibility
only.

(f)       Special Damages

[194]     The plaintiff claims $4,038.71 for special damages for physiotherapy
sessions, various prescribed medications, a doctor’s note, and a visit to an
occupational therapist.

[195]     It is well established that the plaintiff is entitled to recover as
special damages all the pre-trial expenses she incurred as a result of her
injuries, so long as they were caused by the tort and the decision to incur
them was reasonable: see Jamie Cassels, Remedies: The Law of Damages
(Toronto: Irwin Law Inc., 2000) at p. 116.  When assessing the quantum of
damages under any recognized head, the court is concerned, ultimately, with
making the party whole.  McLachlin J., as she then was, described this
animating principle in Milina at 78:

The fundamental
governing precept is restitutio in integrum. The injured person is to be
restored to the position he would have been in had the accident not occurred,
insofar as this can be done with money. This is the philosophical justification
for damages for loss of earning capacity, cost of future care and special
damages.

[196]    
I have reviewed the schedule of special expenses
claimed and find the amount claimed to be in order.  Therefore, I award
$4,038.71

Mitigation

[197]     The issue arises as to what extent, if any, the plaintiff failed to
mitigate the injuries and symptoms caused by the accident by not following the
prescribed treatment plan or engaging in activities not conducive to full
recovery.

[198]     In particular, counsel for the defendant submits that the plaintiff
has failed to mitigate her losses by failing to return to Florida to have the ruptured
breast implant replaced by the plastic surgeon who implanted it, given that Dr.
Horton testified that is it common for there to be warranties on breast
implants and for the original surgeons to perform follow-up operations without
additional charge when an implant ruptures.  He submits that the plaintiff
indicated that she was aware that there was a five year warranty on her
implants, and that she had failed to make any inquiries as to the cost of
travelling to Florida to have the ruptured implant replaced, as opposed to
continuing to seek coverage for the replacement through her insurer.

[199]     He also submits that although the plaintiff testified that she had
sought loans from a number of people to assist her with this procedure she
failed to call evidence to that effect, and her mother, Ms. Mayoh, denied being
asked by her daughter for a loan to contribute to the payment for the
procedure.  The position taken on behalf of the defendant is ultimately not
that she ought to have found and paid the estimated cost of $6,000 to replace
the ruptured implant, but that her efforts to investigate alternatives were not
adequate.

[200]     In reference to his submission that the plaintiff has failed to take
reasonable steps to mitigate her damages, particularly in relation to the
collapsed implant, counsel for the defendant refers to Antoniali v. Massey,
2008 BCSC 1085, in which Preston J. considered whether the plaintiff had
unreasonably failed to mitigate by failing to embark on an exercise program under
the supervision of a personal trainer to rehabilitate herself or alleviate the
continuing effect of her injuries.  He also referred to Job, where
Ker J. reduced an award of non-pecuniary damages by 10% due to the plaintiff’s
failure to mitigate by following the treatment regime recommended by her
physician at the time the recommendation was made, even though she found, at
para. 114, “it meant some initial financial hardship in terms of ability to pay
for the treatments”.

[201]     In response, counsel for the plaintiff submits that the plaintiff
has mitigated honourably by attending physiotherapy, then fully participating
in the active rehabilitation program recommended by her physician and available
to her through ICBC, followed by doing the recommended exercises and stretching
thereafter.  He submits that it is simply too much to expect a plaintiff,
particularly someone in his client’s position to come up with $6,000 for this
kind of surgery, particularly when she is dealing with other injuries arising
from the accident, and no longer lives in Florida.

[202]     The law imposes upon plaintiffs the duty to mitigate their losses. 
This includes taking reasonable steps to minimize any loss relating to their
injuries.  Its purpose is to prevent plaintiffs from seeking recovery from
defendants for harm and loss caused or contributed to by their own neglect. 
The onus of proof rests upon the defendant to establish a failure on the part
of the plaintiff to mitigate, and whether a plaintiff has been reasonable in
refusing to accept the recommended medical treatment is a decision for the
trier of fact: Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[203]     I find, considering the plaintiff’s overall circumstances, including
the other injuries she sustained in the accident and her conduct in terms of regular
attendances to her doctor, and fully participating in the physiotherapy and the
rehabilitation program that were recommended to her, that it cannot be said
that she unreasonably failed to mitigate.  I have taken into account her
failure to take psychological and psychiatric counselling in terms of making no
award for emotional distress, but I am firmly of the view that it is
unreasonable for counsel for the defendant to assert that she ought to have
flown to Florida and incurred whatever costs were associated with having the
ruptured implant replaced there.  As her counsel pointed out, there is a
significant difference between a $15 user fee and personally incurring significant
costs associated with such a surgery, which is estimated to cost approximately $6,000
if performed in British Columbia by Dr. Horton.

Conclusion

[204]     For these reasons I find that the plaintiff has established the following
claims in damages in the following amounts arising from the accident, for a
total of $113,821.71:

1.    
Non-pecuniary damages – $95,000;

2.    
Loss of future income and future earning
capacity – nil;

3.    
Past wage loss – $8,400;

4.    
Loss of housekeeping ability – nil;

5.    
Cost of future care – $6,383; and

6.    
Special damages – $4,038.71.

[205]     The plaintiff is also entitled to interest pursuant to the Court
Order Interest Act, R.S.B.C. 1996, c. 79.

[206]    
I find that the plaintiff is entitled to costs
at Scale B payable forthwith, unless the parties provide notification to the Registry
and Trial Scheduling within 21 days of the date of filing of this judgment.  In
the event further submission are to be made they are to be in writing and the
plaintiff is to file such written submissions within 21 days of the notice
referred to above, the defendant is to respond within 14 days thereafter, and
the plaintiff is to file any further brief written reply within a further 7
days.

“Madam Justice Arnold-Bailey”