IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20100226

Docket: M48978

Registry: Nanaimo

Between:

Deidrea Demarzo and Daniel Saliken

Plaintiffs

And

Paul Michaud

Defendant

Before: The Honourable Mr. Justice
N. Brown

Reasons for
Judgment

[1]            
On March 19, 2005, the
defendant drove his Pontiac Sunbird into the back of a Jeep Cherokee driven by
the plaintiff Deidra Demarzo, who had stopped for a
red light at a Vancouver Island Highway intersection. The plaintiff had turned
to her right to say something to her passenger, Daniel Saliken.
The light turned from red to green just before impact, the force of which
propelled the Jeep about a car’s length into the intersection.

[2]            
Of the injuries the
plaintiff sustained in her neck, shoulder, upper and lower back, the most
serious, and the focus of the trial, was the lower back. The plaintiff
testified that she still experiences lower back pain worsened by bending,
lifting, or standing or sitting too long. The plaintiff and her husband
testified about the substantial effect her injury has had on her work and
recreational activities, leading her eventually to decide to give up the
landscaping business she had been developing.

I.                
POSITIONS

[3]            
The main medical legal
question is what is legally responsible for the plaintiff’s ongoing problems:
the plaintiff’s degenerative spine condition; the accident; or two post
accident occurrences on May 29, 2005 and in early November 2005.

[4]            
The plaintiff says that
the March 21, 2005 accident caused her all of her injuries, including her
continuing lower back symptoms, and that her accident injuries were exacerbated
on May 29, 2005, when she tried to lift two 20lb dumbbells out of the way when
tidying up the basement at home.

[5]            
What the plaintiff
describes as a second flare-up occurred in early November 2005, after the
plaintiff had been out walking with friends and experienced increased pain and
neurological symptoms that included numbness in her foot.

[6]            
She submits that the
degenerative condition of her lower back, whether it existed before the
accident or resulted from it, produced no symptoms until then; and she argues
that there is no basis for supposing that without the accident the plaintiff
would have injured her back on May 29, 2005 or suffered the November 2005
flare-up and her ongoing symptoms. The plaintiff submits that the March 21,
2005 accident likely caused a tear of the annular ring at L4-5, which lifting
the dumbbells exacerbated on May 29, 2005 and which flared up again with
neurological symptoms in November 2005; and that whatever the mechanics of the
accident injuries, they precipitated her lower back problems.

[7]            
The defendant’s
position is that if the plaintiff suffered any lower back injuries from the
accident, they were minor. He submits that the plaintiff’s attempt to lift “two
heavy dumbbells” caused a more serious injury to her back than the defendant’s
negligence. He submits that the disc protrusion seen on MRI imaging on April
2008 likely occurred in early November 2005, after the plaintiff had gone on a
walk with her friends or, alternatively, when she tried to lift the two
dumbbells in May 2005. For either case, the defendant argues that the
plaintiff’s pre-existing degenerative spine and May 29, 2005 injuries are the
cause of her ongoing symptoms, not the defendant’s negligence. The defendant
also submits that the plaintiff’s degenerative spine condition resulted from
years of gym workouts, sports activities and landscaping, which pre-disposed
her to the lower back symptoms she has been experiencing; this condition,
combined with the plaintiff’s dumbbell lifting injury bears the blame for the
plaintiff’s continuing symptoms.

[8]            
The plaintiff claims
compensation for pain and suffering and loss of enjoyment of life, loss of
income, loss of earning capacity and loss of homemaking capacity, special
damages and costs. The defendant argues that the plaintiff is entitled only to
a modest award for her soft tissue injuries and her limited ability to work for
about a month. The defendant has paid the plaintiff’s special damages.

II.              
PRE-ACCIDENT
HISTORY

[9]            
During her Prince George
teenage years, the plaintiff actively participated in high school sports and
recreation, including rugby, beach volleyball, skiing, hiking, cycling, and
bicycling. Starting in Grade 8 and throughout high school, her favourite
pastime was working out in a gym. Her sports activities during high school and
after her 1997 graduation resulted in a high level of fitness that served her
well when, about three years later, she started working as a landscaper and had
to meet that job’s strenuous physical demands.

[10]         Before starting to work as a
landscaper, she had completed two years of university transfer courses at New
Caledonia College, with good standing, and after that ran a small marketing and
advertising company for a few months. She then moved to the Lower Mainland and
started working as a landscaping labourer. In 2002, she took some landscaping
courses offered by her employer, following these up with a more formal
four-month certified course she attended after work. In 2003, she moved to Mascone Landscaping (“Mascone”),
attracted to the company’s focus on installations on new building sites and the
chance to learn more about that facet of the landscaping business. When Mascone laid her off after about four months, the
plaintiff decided to start up her own landscaping business.

[11]         Since she had become self-employed,
she needed to buy a truck and all the necessary tools, borrowing over $10,000
from her parents to buy them. Her immediate marketing strategy was to target
homeowners with large landscapes; her next target was strata complex clients;
and her ultimate goal was obtaining landscaping contracts for new building
sites. Throughout all of 2004, the plaintiff progressively built up her
business in the Vancouver area. On some contracts, she did all the work
herself; on larger ones she hired “young guys with strong backs” to help.

[12]         The evidence satisfies me that
before her March 2005 move to Nanaimo to live with Mr. Saliken,
the plaintiff was making progress in building her lower mainland landscaping
business with a growing network of clientele. Her growing clientele, coupled
with her personality, energy, and dedication, was laying a foundation for
potential success.

[13]         I accept the plaintiff’s evidence
that before the accident her physical and emotional health were excellent, that
she loved her work and her sports. She suffered no pre-accident physical
problems of note, with the exception of some discomfort she felt in her
shoulders and neck related to power trimmer work on some high hedges,
especially challenging for a  5’3” frame. That discomfort was relieved by
a fall 2002 chiropractic treatment and her employer’s willingness at the time
to excuse her from further trimming of high hedges. She suffered no recurrence.
The plaintiff acknowledges that she sometimes felt sore muscles after work, but
felt this was what anyone would expect after working hard all day; and sore
muscles never stopped her from working.

[14]         In September 2004, she met Daniel Saliken, now her husband, at a beach volleyball game. Over
the following six months that preceded the accident, they then saw one another
every weekend, splitting their time between Vancouver and Nanaimo. Mr. Saliken’s work as a land officer with the provincial government
allowed him to set up his work schedule so he could be off eight weeks per
year. On his days off, he and the plaintiff played beach volleyball or ran with
a mountain running group. The plaintiff introduced him to the “Grouse Grind”, a
very challenging fitness hike up Grouse Mountain. When winter rains forced the
end of the volleyball season and limited outdoor activities, they went to the
gym and worked out.

[15]         Mr. Saliken
felt attracted to what he described as the plaintiff’s energetic, “almost
obsessive” attraction to sports, which he said matched his own, explaining that
it was “hard for an active guy to find a woman who is as active as that, and
that this was the woman that he was looking for.”

[16]         Mr. Saliken
sometimes went on the plaintiff’s Vancouver area job sites to help or just
“hang out.” He recalled a “big job” in North Vancouver where he saw the
plaintiff install 25 yards of soil and then plant big trees,
clean up the debris and lay the turf. He had worked on the job himself over two
days, and was impressed with the plaintiff’s strength and stamina. He described
work on other job sites as well, and observed that she works “harder than guys
do, back and forth, back and forth, not even taking breaks, just five minutes
for a burger, then back to work, non-stop.” He said that the plaintiff worked
out hard at the gym “like a guy”, using all the machines.

[17]         Mr. Saliken
denied awareness of any back complaints by the plaintiff.

[18]         By March 2005, Mr. Saliken said that he and the plaintiff had become serious
about their relationship, but found the long distance aspect difficult. He
tried to convince the plaintiff to move to Vancouver Island, and take her
landscaping business with her, but she resisted his suggestion at first,
pointing out to him that she had been building an “upscale client list”, and
said she was reluctant to give it up. Even so, by February 2005 they came to a
compromise, with the plaintiff travelling back and forth between Nanaimo and
Vancouver so she could continue to service her more lucrative Vancouver
clients. In March 2005, the plaintiff moved to Nanaimo, began living with the
plaintiff, and started marketing her business on Vancouver Island while
maintaining her existing Vancouver clients. Then in the third week of March,
the accident occurred.

III.             
ACCIDENT
AND POST ACCIDENT HISTORY

[19]        
The plaintiff said that
she felt shaken at the scene. Afterwards, she went to the home of Mr. Saliken’s mother, noticing her stiff neck and headaches
were getting worse. She also began to notice some stiffness on the left side of
her back.

[20]         Counsel for the defendant submits
that the plaintiff exaggerated the forces of the collision in statements she
gave to the examining physicians, which he suggests led them astray when they
prepared their opinions. I reject this. It is true that the plaintiff indicated
to some medical examiners that she thought the defendant’s impact speed at
impact was 60 kilometres per hour. This estimate might be high, but the
fact remains that the impact generated a significant amount of abrupt force on
the bodies of Mr. Saliken and the plaintiff, who was
turned to her right at the time of impact. Mr. Saliken,
a fit man, also sustained injuries, albeit less significant than the
plaintiff’s. He recalled that the collision thrust his body forward quite
violently, then backward and then forward again; causing him to strike and
bruise his head.

[21]         I accept the evidence of the
plaintiff and Mr. Saliken that the impact propelled
the Jeep forward about 14 to15 feet, nearly resulting in a collision with a car
in front that had been pulling out in response to the light change from red to
green. Mr. Saliken described how the impact bent the
trailer hitch and crushed the bike rack, both thrown away, as well as other
damage to the vehicle.

[22]         On March 21, 2005, the plaintiff and
Mr. Saliken saw Dr. Vaughn at the same time. Dr.
Vaughn prescribed physiotherapy for the plaintiff.  On March 29, 2005, she
attended the Departure Bay Physiotherapy Clinic (“Departure Bay”).
There, she received massage on her shoulder and lower back and the
physiotherapist heat wrapped her left shoulder. The plaintiff recalls that she
felt terrible after the massage, and that her back felt worse than before she
went in for treatment.

[23]         Despite continuing lower back
complaints, the plaintiff eventually stopped further physiotherapy treatments
because she was not receiving any benefit from them; in fact, she says they
seemed to aggravate her symptoms. She continued daily stretching on her own,
and did not seek any other medical attention until after the aforementioned May
29, 2005 dumbbell lifting incident.

[24]         The plaintiff testified that she
expected a full recovery so she continued marketing her business and tried to
resume some of her normal activities. For example, she tried raking, but could
not continue with that or other typical landscaping tasks. She promoted her
business and supervised jobs where Mr. Saliken did
the labour. She did experience some improvement in the next eight weeks, but
continued experiencing lower back symptoms that worsened with attempts to
become more active. She also testified that she had a brief episode of foot
numbness a couple of weeks before May 29, 2005, the day she tried lifting the
two 20lb dumbbells.

[25]         The defendant pointed to differences
in the history the plaintiff gave to examiners about the weight and number of
dumbbells involved in the May 29, 2005 incident. Nothing turns on these. I find
any discrepancies relate as much to errant arithmetic
by recording physicians as anything else, and that most likely there were two
20lb dumbbells involved.

[26]         Before turning next to the various
medical-legal opinions, I should note that during argument the defendant raised
an objection to the admissibility of a document styled as an “Interpretation of
Clinical Records of Departure Bay Physiotherapy Clinic”. This document
contained a typed interpretation of notes made by treating physiotherapists in
March and April 2005. The notes show that the physiotherapists treated the
plaintiff for lower back pain. The opinions of Dr. Vaughan and Dr. Reems about the onset of lower back pain relied on this
document to some degree. I dismissed this objection for reasons set out in an
Appendix at the conclusion of these reasons.

IV.            
MEDICAL-LEGAL
OPINIONS

General
Practitioner Dr. Vaughan – February 14, 2006

[27]         Dr. Vaughan was the first
physician to see the plaintiff after the collision, although his office
colleague Dr. Reems eventually became her
primary caregiver. In his February 14, 2006 medical report, Dr. Vaughn
confirmed that he saw the plaintiff on March 21, 2005 and that he did not note
any back complaints. This was also the case when she saw him on April 27, 2005
and told him she had been to physiotherapy and that the treatments seemed to
make her neck pain and headaches worse. Since the plaintiff had been receiving
physiotherapy treatment for lower back pain at the time, one would expect
mention of this. Still, a clinical note does not necessarily contain all
relevant information at a given time.

[28]         When Dr. Vaughan wrote his
February 14, 2006 report, he had received a copy of the Departure Bay
records that defendant’s counsel objected to during trial. Dr. Vaughan partly
relied on these records in coming to his conclusion that the Plaintiff had
suffered a lower back injury as well as a whiplash injury of her neck in the
accident. He noted that initially “she hurt everywhere and the neck discomfort
and secondary headaches were the prominent symptoms immediately.”

Medical
Report of Dr. Reems – March 6, 2007

[29]         Dr. Reems
assumed primary care of the plaintiff from Dr. Vaughn. He saw the plaintiff on
December 27, 2006, which was her last visit before he wrote the March 6, 2007
report where he noted at p. 2:

…In hindsight of course, it is entirely probable
that the low back difficulties did start out with the motor vehicle accident,
unfortunately there is no mention of low back issues related to the motor
vehicle accident in the previous visits with Dr. Vaughan. He does not mention any low
back complaints until her visit of August 11, 2005. On review of Departure Bay
Physiotherapy notes from Gulzar Hallman, she notes a
motor vehicle [accident on] March 19, 2005, and began examination and treatment
of Ms. Demarzo on March 29, 2005. This would
therefore fit with her claim that her back pain began as a result of the motor
vehicle accident, rather than first mention of same in our charts on May 30,
2005, with the back pain issues related to lifting at home.

[30]        
When Dr. Reems saw the plaintiff on February 14, 2007—well after the
May 29, 2005 lifting injury and November 2005 flare-up discussed separately
below—she told him that she was still attending chiropractic treatments on an
as-needed basis, that she was still experiencing pain in her left shoulder and
left lower back, and that she had been unable to carry out any landscaping work
since November 2006. She continued to experience numbness along the left
lateral foot margin. When he wrote the report in February 2007, Dr. Reems’ prognosis was an optimistic one, but unfortunately,
by the time of trial the plaintiff had still not recovered and the prognoses of
some of the other specialists are considerably more pessimistic.

Dr. Leete, Orthopaedic Surgeon – June 3, 2009

[31]        
Dr. Leete
graduated from University of London, St. Mary’s in 1961, came to Canada in
1967, practiced and qualified as an orthopaedic surgeon in Ontario and has
practiced as an orthopaedic surgeon since 1979. When the plaintiff saw
Dr. Leete on June 3, 2009, his clinical
examination and testing revealed “segmental instability in the vertebrae” (i.e.
it does not extend smoothly after bending) and also pain on bilateral resisted
straight leg raising.  He thought these were
indicative of mechanical back pain with segmental instability.

[32]         He described the medical imaging as
“quite revealing”:

…These show that she has sacralisation of her
fifth lumbar vertebrae and has only four mobile lumbar segments. The last
mobile segment at the level of L4-5 is extremely degenerative for a person of
her age with sclerosis on either side of the joint, indicative of abnormal
movement.

[33]         Dr. Leete
attributed the advanced degenerative change shown on imaging to the injury
sustained in the motor vehicle accident:

For a person
of her age to show such degenerative change, it is apparent on her plain films,
she must have sustained significant injury and the only relevant history of
injury is the motor vehicle accident of the 19^th of March 2005.

It is my
opinion, therefore, that her ongoing back discomfort is a direct result of the
accident that has been described.

Her prognosis is, I think, extremely guarded.
The degree of degenerative change that she has at the last mobile segment in
her spine does, I think, render her to be a candidate for long term back discomfort.

[34]         Dr. Leete
opined that he did not believe the plaintiff would be able to return to her
previous work as a landscaper and that she would require a more sedentary job
in the future. Dr. Leete also opined that should
the plaintiff become pregnant, she could expect to experience an acute
exasperation of discomfort. This expectation was borne out because when the
plaintiff became pregnant, she experienced acute back problems.

[35]         When asked on cross-examination how
soon he would expect the plaintiff to exhibit pain if she had suffered a tear
of the annulus in the accident, he explained that pain might not be immediate;
it can worsen gradually, as swelling and irritation in the tissues progresses.

[36]         He also explained that medical
literature does not support a causative connection between the congenital
fusion of the plaintiff’s spine at the last vertebral segments at L5-S1 (as
seen on x-ray) and backache; likewise, no support for a causative connection
between such a congenital fusion and the onset of disc problems at the next
higher level, L4-5, where imaging had revealed a “minor herniation”
(or tear of the annular ring). In addition, he denied any support in the
medical literature for a connection between physical activities such as
football and occupations such as landscaping and the development of back pain.
On cross-examination, Dr. Leete confirmed his opinion
that the accident had injured the plaintiff’s lower back, including the
annulus, rendering the plaintiff more susceptible to further injury.

Dr. Filbey, Physiatrist – April 22, 2008

[37]         Dr. Filbey
has practiced as a physician for 15 years and as a physiatrist for 10 of those.
He is a Clinical Assistant Professor at the University of British Columbia. He
saw the plaintiff in April 2008.

[38]         His opinion largely accords with Dr.
Leete’s opinion, although his analysis places little
importance on the annular tear at L5. On examination of the plaintiff, he found
no abnormality at S1 and no nerve root irritation. He states at pp. 4 and 5 of
his April 22, 2008 report, prepared at the request of plaintiff’s counsel:

Ms. Demarzo has not had a history of pain in the currently
symptomatic areas prior to the MVA. The records, and
Ms. Demarzo’s own history, indicate that she
developed low back pain following the MVA.

It is noted
that she had an acute complaint of low back pain with the dumbbell lifting.
There is no indication that she would have developed pain in the low back with
lifting the dumbbells had it not been for the pre-existing low back pathology
(related to the MVA). It is more likely than not that
as a result of the MVA contributed to the development
an acute exacerbation of pain with such an activity.

The disc
protrusion on the MRI scan is reported to be “tiny” and did not displace the
left L5 root. There is nothing on the MRI scan that accounts for her bilateral
leg symptoms at this time. My conclusion is that the MRI scan has no acute
impact or relevance to her current symptoms. I am of the opinion that the MRI
scan findings are not relevant from a clinical perspective with respect to
nerve root compression.

The
degenerative changes are unlikely to be a result of the MVA
although they may have been rendered symptomatic by the MVA.

Prognosis:

Ms. Demarzo has ongoing chronic low back pain. Her MRI scan
identified lumbar spondylosis and an annular tear.
She has had pain now for over 2 1/2 years. It is my opinion that she will
remain symptomatic. The annular tear is unlikely to be of much relevance at
this time. There is no risk of significant radicular
pathology as a result of the MVA.

It is
possible that Ms. Demarzo may experience ongoing
degeneration of the discs identified as being abnormal in the MRI scan.

Gainful
Employment:

Ms. Demarzo is
advised to avoid heavy lifting or repetitive tasks with her low back in the
future. She can continue with her employment.

[39]         On cross-examination, Dr. Filbey clarified and expanded on his opinion. Dr. Filbey said that physicians now get less “excited” about
imaging that shows vertebrae changes or artefacts such as annular tears,
explaining that he had ordered the MRI scan in order to see if it offered any
confirmation of a nerve impingement, which could have necessitated surgery. The
MRI ruled out a serious impingement requiring surgery, and he concluded that
the annular tear in this case was not clinically significant. While the tear
could have occurred at the time of the accident, it could also have developed
gradually over time. He did not think it was possible to look back and say when
it occurred. Like Dr. Leete, he did not agree with
the defendant counsel’s suggestion that the plaintiff’s degenerative spine
would lead to back pain and he opined that the accident trauma caused the
plaintiff’s symptoms. He explained that trauma renders asymptomatic
degenerative spines symptomatic in many patients. In the plaintiff’s case, he
felt that the degeneration of the plaintiff’s spine had accelerated because of
the accident, but also that this process would plateau and not then not
continue to worsen. However, now it would be unstable. He predicted that
because of the accident the plaintiff will now be “symptomatic over the long
term”.

[40]         Dr. Filbey
also opined that the degenerative changes had been present for a considerable
period but that without pre-accident baseline imaging and no post-accident
comparatives soon enough after the accident, it was impossible to give a
reliable opinion on the extent of the changes pre-accident, although he felt
that some degenerative changes would definitely have been present then. He
clarified his written report further by confirming that it was his opinion that
without the intervention of the car accident trauma, the plaintiff would have
remained asymptomatic.

[41]         He did not agree that lifting two
20lb dumbbells was the cause of the plaintiff’s ongoing symptoms because she
had no history of previous back pain and her back was accommodated to lifting
and strenuous activity, just as the bodies of athletes accommodate to the
demands of the their sports activities. Like Dr. Leete,
Dr. Filbey disagreed with the defendant’s suggestion
that the plaintiff’s work as a landscaper predisposed her to degenerative
changes or pain.

Dr. A. Moll, Neurologist

[42]        
Dr. Moll saw the
plaintiff in June 2006, at the request of Dr. Reems.
Dr. Moll confirmed that his conclusion was that at some point the plaintiff
suffered irritation of the S-1 nerve root level on the left side, and that this
probably occurred in November 2005. Dr. Moll felt that the plaintiff likely
suffered a probable disc protrusion with nerve root irritation in November
2005, with substantial resolution, but that the numbness and an impaired ankle
reflex laterally reflected some residual scarring at the left S1 nerve root
level.

[43]         On questioning, Dr. Moll felt that
it did not really matter whether was just part of the progression of the
initial injury or partly related to the degenerative spine condition; he felt
that both were pertinent.

Dr. J.
Reed, Chiropractor – Clinical Record Review

[44]         Dr. J. Reed saw the plaintiff on May
31, 2005 after she had injured her back lifting the dumbbells. The plaintiff
told Dr. Reed she had experienced numbness in her right foot radiating
from her lower back during the previous week, but that it had only lasted for
one day. The plaintiff’s last visit with Dr. Reed was on November 7, 2005,
following her acute onset of pain and numbness.

Medical
Reports of Dr. Schweigel, Orthopaedic Surgeon – April 21, 2008, January 21, 2009, and December
1, 2009

[45]         Dr. Schweigel
conducted a medical examination of the plaintiff at the defendant’s request on
January 21, 2009. He agrees with the other physicians that the plaintiff
sustained a soft tissue injury to her neck and back as a result of the motor
vehicle accident. On p. 4 of his January 21, 2009 report, he opined:

Opinion and Discussion: My opinion and discussion remain
unchanged from the report given on April 21, 2008. I believe she did sustain a
soft tissue injury to her neck and back as a result of her motor vehicle
accident. I do not believe she sustained a disc protrusion as a result of the
motor vehicle accident on March 19, 2005.

[46]         He also opined that the dumbbell
lifting injury in May 2005 caused an injury to the lumbar spine, and that the
plaintiff did not have a significant injury to the lumbar spine from the
accident. He felt that the significant triggering event was the
dumbbell-lifting incident:

… It
sounds like she had a soft tissue injury whereby she had a couple of complaints
to the physiotherapist, but no significant findings. There were no documented
neurological findings and her range of motion of the lumbar spine prior to the
lifting of the weight was normal.

… I believe the lifting of the weight is the
triggering event which caused the pain. She was bedridden because of this pain
after lifting the weight. She had very mild complaints to the physiotherapist
only after the motor vehicle accident brought her to the lifting of the weight.
I don’t believe the motor vehicle accident caused the disc protrusion. It
sounds like the motor vehicle accident caused a mild soft tissue injury to her
lumbar spine… This ongoing low back pain sounds as if it is a mechanical type
pain, ie. lifting, bending
or twisting are more likely to bother the back. This mechanical back pain is
not related to the motor vehicle accident.

[47]         On cross-examination, Dr. Schweigel confirmed that at the time he wrote all three of
his reports, he believed the plaintiff had ongoing mechanical lower back pain
brought on by activities such as lifting or twisting. He acknowledged that an
acute phase follows an injury, but said that this usually settles over time.
However, it was also his experience that although there might be improvement,
there could be a waxing and waning pattern during the recovery period, and that
strenuous activity during the recovery would more likely cause an aggravation.
He did not rule out the possibility that the May 29, 2005 lifting injury was an
exasperation of the lower back injury caused by the accident.

V.              
Discussion
and Findings

[48]        
The medical opinions of
Dr. Filbey and Dr. Leete,
in conjunction with the plaintiff’s accepted testimony, are more than adequate
to show that the plaintiff sustained a significant lower back injury because of
the motor vehicle accident. It is also clear that the plaintiff had not
recovered from her accident injuries on May 29, 2005, when she lifted the two
dumbbells. At that point, apart from some on site supervision and attempts to
resume activities that worsened her symptoms, the plaintiff was still unable to
work as a landscaper. She had not returned to any of her various recreational
activities and was still not able to manage homemaking activities as before.
While she had felt some improvement in her lower back pain since the accident,
she was far from recovered by the time of her May 29, 2005 injury. Dr. Schweigel appears to have incorrectly assumed that the
plaintiff’s symptoms before May 29, 2005 had been insignificant. However, it is
apparent that, two months later, the plaintiff, though improving, was still
significantly symptomatic and incapacitated.

[49]         I accept the opinion of Dr. Filbey that had it not been for the accident, most likely
the plaintiff would not have sustained any injury to her lower back when she
lifted the two dumbbells. I accept the persuasive evidence I heard that before
the accident the plaintiff was extremely hard working, and could lift, push,
twist and pull with significant force and effort, participate in sports, and
attend the gym without limitation and had been able to do so asymptomatically
for a long period. Anyone capable of working in the
landscaping business day after day as well as exercising in a gym as hard as
the plaintiff did before the accident and without any indication of lower back
complaints should have been able to lift two 20lb dumbbells without sustaining
such a significant persisting injury, as Dr. Filbey
noted. Of course, it is possible to sustain an acute temporary injury
after moving or lifting something the wrong way, but the circumstances in the
case at bar are quite different.

[50]         Further, while it is possible that
at the time of the accident the plaintiff sustained an annular tear or other
injury to one of the discs in her lower back, this tear was very small one. I
accept Dr. Filbey’s opinion that such a small tear
has little clinical significance in this case; and that the focus should be on
the overall history and clinical history of the plaintiff, not on individual
artefacts.

[51]         I find that the plaintiff sustained
a significant soft tissue injury to her lower back but it is not possible to
unravel the plaintiff’s clinical history in such a way that allows a conclusive
evidentiary finding on the specific medical legal question of when the
plaintiff sustained her annular tear.

[52]         The plaintiff’s lower back symptoms
have become chronic and I accept Dr. Leete, Dr. Filbey’s medical opinions that she will continue to
experience intermittent lower back complaints, especially related to certain
activities. This is far from what she was able to do before the accident.

[53]         As for the defendant’s contention
that the plaintiff’s landscaping activities produced her degenerated spine and
that this is the ultimate cause of her symptoms, I prefer the opinions of Dr. Leete and Dr. Filbey that there
is no sound medical basis for the proposition that because someone over the years
has been active in sports and worked as a landscaper, they are necessarily
predisposed to development of degenerative changes in the spine or that such
changes are associated with back pain. I understood from the evidence of Dr. Leete and Dr. Filbey that one
patient may present with images of a markedly degenerated spine and have no
history of symptoms, while another patient may present with marked symptoms,
and have images of a perfectly normal spine. I also find that there is no sound
medical basis for concluding that the plaintiff would have suffered the
symptoms and limitations that she has experienced or that her degenerative
spine would have inevitably become symptomatic, absent inducement of symptoms
by the trauma of the motor vehicle accident.

[54]         The plaintiff’s position is that
when she lifted the dumbbells, she experienced immediate onset of pain in the
same area she injured in the accident; that this was an exacerbation of the
plaintiff’s unresolved injuries; and that there is no evidence to show that she
would have experienced her continuing symptoms but for the injuries she
sustained in the accident. On the balance of probabilities, I agree with the
plaintiff’s position. I find that but for the accident the plaintiff would not
have suffered the pain and disability she experienced after accident, including
the exacerbation of her injuries on May 29, 2005 and acute flare-up with
neurological symptoms in November 2005.

[55]         The principles of causation as set
out by the Supreme Court of Canada at paras. 16-17 in
Athey v. Leonati,
[1996] 3 S.C.R. 458, 140 D.L.R.
(4th) 235 [Athey], govern in this case:

[16]     
In Snell v. Farrell, supra, this Court recently confirmed that
the plaintiff must prove that the defendant’s tortuous 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…

[17]    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.

[56]        
As stated above, it is
impossible to unravel the plaintiff’s medical history in a way that that can
lead to a precise determination of the respective contributions of the
plaintiff’s degenerative spine, the accident trauma and the May 29, 2005
lifting injury to her continuing symptoms, from which she will not fully
recover.  However, I find that the medical evidence exceeds the
evidentiary standard laid down in Athey. Accepted
medical evidence amply demonstrates that the trauma of the accident
substantially caused or contributed to the plaintiff’s ongoing symptoms, and as
such, the defendant is liable for the resulting losses. Moreover, I accept the
opinion of Dr. Filbey that there is no reason to
conclude, absent the accident, that because of the plaintiff’s degenerative
spine condition or the May 29, 2005 exacerbation, the plaintiff would have
experienced such pain and disability in future years.

VI.            
LOSSES

A.              
Pain
and Suffering and Loss of Enjoyment of Life

[57]        
The plaintiff has never
returned to her former work as a landscaper or to any of her former
recreational activities, at least not with any degree of intensity. She is
still unable to play volleyball, cannot run long distances, although she did
try running in the last month but at a far lower level than before. She no
longer exercises at the gym. She does not enjoy movies in theatres because she
finds sitting for long periods very uncomfortable. She explained that the last
time she went out with friends, she felt very uncomfortable, but suffered
through it as she was too embarrassed to leave. Given her enjoyment of sports
and active lifestyle shared with her husband, as well as the loss of her former
capacity to be active, this represents a substantial loss for the plaintiff as
a person and a spouse. Although the plaintiff will likely improve somewhat in
the future, I accept that she will not ever be able return to her former level
of participation in recreational activities or regain her former physical
capacities; and will continue to experience varying degrees of chronic back
pain that will necessitate alteration of her lifestyle.

[58]         The accident depressed the
plaintiff’s mood, leading to a marriage separation in early spring 2007.
Mr. Saliken testified that the plaintiff became
depressed, unhappy about living with him in Nanaimo, impatient and angry.
Making matters worse was the apparent mindset of Mr. Saliken’s
family, who were impatient with the pace of the plaintiff’s recovery and kept
asking why she could not work. The plaintiff’s feelings of frustration,
augmented by her feelings of diminishment in the eyes of her husband’s family,
who she did not yet know well and who had “never seen how hard she could work”,
and her feeling that she had become a drain on the household combined with
other aggravating factors, ultimately led to arguments and her two months
separation from her husband. Fortunately, their bond and commitment to one
another were strong enough to allow the plaintiff and Mr. Saliken
to weather these adverse emotional affects of the accident and they reconciled.
Nonetheless, the plaintiff’s separation from her husband and her emotional
distress are emblematic of the degree of suffering and loss of enjoyment of life
the plaintiff has experienced. She is entitled to a substantial award for pain
and suffering and loss of the enjoyment of life. Bearing in mind that while she
will receive compensation for her loss of earning capacity, she has still lost
the enjoyment and satisfaction she experienced in her chosen career. I award
the plaintiff $85,000 for non pecuniary damages.

B.              
Impairment
of Homemaking Capacity and Grounds Maintenance

[59]        
The plaintiff claims
compensation for impairment of her homemaking capacity, a claim that
encompasses her inability to maintain the grounds around their ocean side home
and the cost of future maintenance. The defendant submits that $40,000 would be
a suitable award for these losses.

[60]         When Mr. Saliken
lived alone in what now is the family home, he left the grounds untended
because he had no interest in gardening and chose to leave the grounds in their
natural ocean side state. Before the plaintiff moved in with Mr. Saliken, he agreed that she should landscape the grounds
around the house. The plaintiff testified that she went all out, installing
lawns, beds and a wide variety of plants, producing the finished look you
“might expect from a landscaper”, as she described it. The plaintiff had
purchased wholesale plants and materials that would retail for over $5,000. She
had planned to maintain the grounds because she knew Mr. Saliken
wasn’t “into” gardening. After the accident, the plaintiff’s diminished
capacity joined with the fact that Mr. Saliken had to
assume most of the housekeeping, as well as labour on the plaintiff’s
commercial landscaping projects, resulted in circumstances where the grounds
were not maintained and became overgrown. Mr. Saliken’s
elderly father came the odd time to cut the lawn, but for all intents and
purposes, I understand that the grounds ended up looking worse than when the
plaintiff had landscaped them. As matters now stand, the plaintiff will not be
able to look after them as she had planned and her husband has neither the time
nor personal interest to motivate him to take on the responsibility for grounds
maintenance.

[61]         The plaintiff asks that the cost of
restoring and maintaining the grounds be considered, pointing out that she will
have to hire someone to restore and then to maintain them. However, asked what
the hourly cost would be, she said that she billed out her own time on projects
at $50 per hour per person, and workers’ time at $20 per hour.

[62]         The plaintiff and Mr. Saliken are credible witnesses, but they cannot supply all
that a trier of fact requires to award substantial
damages on this aspect of the claim for loss of homemaking capacity. Although I
accept that the grounds are in a sorry state, I have no photographic evidence
showing the state of the grounds before the accident that allows me to gauge
the scope of work done and required, nor do I have any invoices for the
purchased plants and or independent estimate of the costs for restoring and
maintaining the grounds.

[63]         Furthermore, the plaintiff is
obligated to mitigate her damages. While I accept the plaintiff’s evidence that
she charged for her own time at $50 per hour, an independent estimate and
evidence about market rates for landscape maintenance should have been introduced.
The plaintiff paid her own workers $20 per hour per person, not the $50 hourly
rate that counsel proposed as a basis for calculating the future cost for
restoring and maintaining the landscape. An independent estimate could have
included a calculation of the cost of replacing the current landscaping with
low maintenance landscaping, taking into account salvageable plants, together
with the annual cost for future maintenance. This would have been a starting
point for an assessment.

[64]         Overall, the evidence justifies an
award that encompasses an amount to restore the grounds to an attractive but
lower maintenance state and the cost of maintaining them. The plaintiff can
mitigate costs by overseeing the work and hiring less experienced lower cost labour,
as she did for her former business. As for the long term, an award for lost
homemaking capacity should be an assessment that weighs all factors, including
the real possibility that in the future the plaintiff will improve sufficiently
to allow her to garden for pleasure to some extent and avoid some of the costs
of maintenance in the process. I find that with the plaintiff’s expertise and
ability to oversee the work and salvage some plants, she can mitigate costs to
some extent. Based on the accepted description of the work the plaintiff had
done, but assessing the costs conservatively given the lack of an independent
estimate, I allow $4,000 for the cost of re-landscaping the grounds and
changing them to a layout that will require a reduced level of maintenance. The
cost of future grounds maintenance is encompassed with the general award for
loss of homemaking capacity. With respect to the plaintiff’s loss of the
enjoyment she would have experienced in maintaining the grounds of the family
home is encompassed within the general award for non-pecuniary damages.

[65]         The plaintiff also claims
compensation for diminished housekeeping capacity on the basis that Mr. Saliken has had to take on various household duties that
she can no longer do herself, such as cleaning the floors and bathtub and
unloading the dishwasher. She continues to do other chores, but at a slower
pace and with discomfort. The evidence confirms that she must now be careful
using her lower back and it follows that she should avoid any heavy or
repetitive lifting.

[66]         Neither party called evidence to
show how many hours weekly would be reasonable, or the range of hourly rates in
the Nanaimo area. Photographs of the interior of the house or other objective
evidence would have assisted in assessing the need and scope of work required.
Nevertheless, the accepted evidence about the plaintiff’s limitations justifies
an award for the cost of hiring cleaners to clean the floors and bathrooms, and
to carry out other housekeeping that aggravates the plaintiff’s lower back. She
is also entitled to some assistance with heavy seasonal cleaning, as the
evidence confirms her post-accident vulnerability in that regard.

[67]         The plaintiff has a young child to
care for now as well as the pending responsibilities of full time work or
further education, and she has lost a considerable amount of her former
capacity to juggle the demands of work, child rearing and homemaking. She is
entitled to receive a significant award for diminished homemaking capacity. In
my view, the figure submitted by defendant’s counsel is fair when measured
against the plaintiff’s limitations and assuming reasonable amounts of
assistance at a reasonable cost. Accordingly, I award $40,000 for diminished
homemaking capacity that encompasses both indoor and outdoor activities and an
additional $4,000 for the initial cost of cleaning up and re-landscaping the
grounds, to a total of $44,000.

C.              
In Trust Claim for Substitute Labour Provided by
Daniel Saliken

[68]        
The plaintiff advances
an in trust claim based on the fact that in order to keep the plaintiff’s
landscaping business viable, Mr. Saliken had to take
time off work to carry out work the plaintiff was unable to perform. There was
no evidence that he suffered any personal pecuniary loss however. Plaintiff’s
counsel submits that 400 hours is a rough approximation of the total hours Mr. Saliken expended which, calculated at $14.34 per hour,
yields a total loss of $5,736.00. However, the plaintiff and Mr. Saliken indirectly benefitted from the income earned on the
projects and, in that sense, Mr. Saliken’s
labour did not go uncompensated. However, he used his personal time off from
his work to perform the work the plaintiff would have done otherwise. Had Mr. Saliken not performed the work he did for the plaintiff,
she plaintiff would have had to hire labour. In my view, this claim logically
should form part of the plaintiff’s loss of income claim, analyzed on the basis
that the plaintiff should not benefit from Mr. Saliken’s
labour that the plaintiff would have otherwise had to purchase from strangers.
In any event, it is compensable.  As noted above, the documentation is
sparse and the plaintiff derived some benefit from his labours, making this difficult
to quantify. I award $2,500 in compensation for Mr. Saliken’s
labour substituted for that of the plaintiff.

D.              
Past
Wage Loss

Business
after the Accident, Work Done and Lost Opportunities

[69]        
When the plaintiff
moved to Vancouver Island, she handed out business cards and promoted her
business through realtors, contractors  and, as a
result, secured a number of contracts. She tried to perform some landscaping
tasks on these contracts post-accident but did not do well afterwards. As a
result, she supervised the work performed by Mr. Saliken
or hired hands on site. The plaintiff expected a full recovery that would
eventually see her assume all her former duties so she wanted to keep her
business as active as possible; however, she never was able adequately to
resume her former activities and eventually quit the business altogether.

[70]         The plaintiff continued receiving
calls from Vancouver clients and referees so she sometimes travelled there with
Mr. Saliken who did the work while she supervised.
However, she found that even travelling in a car was difficult.

[71]         The documentary record of the work
completed was very thin. The plaintiff explained that she was not good at
record keeping records and that some of these were lost when she moved to
Nanaimo.  Apart from the income tax returns, the only documentary evidence
that the plaintiff was able to find is a May 25, 2007 quote for 2430 Recreation
Road totalling $71,559; a bill for a decorative retaining wall for $10,248.69,
and an invoice dated September 2005 for a lawn and cedar installation for
$3,546.81. The plaintiff fell behind in filing her income tax returns. The only
ones available are for fiscal years 2004 and 2005. For the period April 1, 2004
to December 31, 2004 the plaintiff reported business revenue of $18,133. But
start-up expenses and other deductions resulted in an $11,300 loss. In 2005,
she reported business revenue of only $2,750, but this represented only one
project at Buntzen Lake and does not include some
other jobs totalling about $6,000.

[72]         As for the invoices, these were not
produced to the defendant until shortly before trial, leaving counsel no
opportunity to depose the plaintiff on these documents or investigate them
further. Such documentary shortcomings call for caution and conservative
calculations when it comes to assessing the plaintiff’s past loss of income.
Nevertheless, the plaintiff’s claim has substance. The descriptions of
landscaping projects the plaintiff and Mr. Saliken
gave were concrete and logical, and I have enough evidence to make an
assessment that is reasonable and fair to both sides.

[73]         First, I will summarize the evidence
about completed or lost projects based on the evidence of the plaintiff and Mr.
Saliken, who between them had good recall of most of
the projects, including the approximate amount of the billings on them. I will
attribute gross revenue to these projects. I will take these attributed amounts
into account when estimating the plaintiff’s post-accident (i.e. the
plaintiff’s ‘with accident’) income. These must remain approximations. As for
the lost projects, I will consider them to a limited extent in assessing the plaintiff’s
future prospects in the landscaping business, but will not award any loss of
income in relation to them (because of the plaintiff’s inability to complete
the work). I will then set out all the factors in the table I have assembled
below.

North Vancouver – 2005

[74]         This was a client that the plaintiff
had completed a lot of work for in the past and had received a continuing flow
of referral work from him. Mr. Saliken recalls
spending four 8 to10 hour days, about 40 hours in all, staying at his
sister’s place overnight. The intention was to try to keep the continuity of
the plaintiff’s business going. Attributed income: $2,000.

Absentee Landlord – April 2005

[75]         Another project was in April 2005
that involved cutting down some trees for an absentee landlord. I heard no
details about the amount of time spent on that project. Attributed
income: $500.

Southlands (“Ralph’s Place”) –
Vancouver April 2005

[76]         Mr. Saliken
travelled from Vancouver to Southlands, where the plaintiff had several clients
encompassed within a few blocks. He was working with some lawn equipment but
had started to “destroy” the lawn because he was not familiar with the
equipment. The plaintiff could not operate the equipment and ended up calling
in another landscaping colleague to finish the work. Attributed
income: $0.

Buntzen Lake Coquitlam Hydro Project – April 2005

[77]         Mr. Saliken
simply off-loaded plants there. The plaintiff says that this was included in
the Plaintiff’s 2005 return. Attributed income: $2,700.

Qualicum Beach – April to July 2005

[78]         This was a job given the plaintiff
by the realtor Brenda Nicholls that paid $40 per week. Attributed
income: $800.

Removing Debris – May 2005

[79]         This paid $150. Attributed
income: $150.

September 2005 Lawn and Cedar Installation
Invoiced

[80]         Attributed Income: $3,546.81

North Vancouver Backyard – September 2006

[81]         In September 2006, a neighbour of
one of the plaintiff’s clients called and asked if she would carry out a
backyard makeover on his property. This would have required about 13 hours
of work, not including travel time on the ferry, as recalled by Mr. Saliken. The plaintiff was paid $1,700. Attributed
income: $1,700.

Esso Contract – October 2006

[82]         This customer owned a large gas
station in Nanoose, and was referred to the plaintiff
by the owner of another project at Qualicum Beach.
This was a large project involving over 200 feet of driveway, with water
features, fifteen large coniferous trees to be removed, among other tasks. The
plaintiff hired a number of young men to do the work, and had the plants
brought over from Vancouver. Mr. Saliken took
two and a half weeks off work, and worked seven days a week, 12 hours a
day in order to complete the job; thereafter, he had to leave his regular job
at 4:30pm and work after hours in order to complete the project which was lit
up with lights to allow night time work. He estimates that he worked about 300
hours on the project. Attributed income: $20,000.

         
Vancouver – April 2007 (Lost project)

[83]         The evidence on this work was
unclear. The plaintiff testified that she was offered an opportunity at another
job in April 2007 through a “police friend”; but she had to see a chiropractor
because she was in so much pain. She gave the quote to the police officer. This
evidence is too vague to give any weight in assessing loss of past income. Attributed
income: $0.

Shawnigan Lake – May 2007 (Completed and Lost
part of the project)

[84]         This Shawnigan
Lake project was actually two projects, only one of which was completed. The
first project was described by the plaintiff as a fairly large project which
required building a retaining wall that was billed at $13,000. The plaintiff
hired help to complete the project within four days. The second and larger
project involved renovating the whole grounds of the lakefront property in
preparation for a Canada Day celebration at a cost of about $70,000. The
landowner said he wanted the work done soon, but since Mr. Saliken
could not take any more time off work, the hired hands did not have enough
available time either, and the plaintiff could not do it herself, she had to
turn the project down. This project was the plaintiff’s last job. Attributed income for completed portion: $10,249.

Manufactured Turf Installation (Lost project)

[85]         The plaintiff testified that one
last opportunity for her landscaping business became available. A dealer who distributed
installed manufactured turf for people who did not want to be burdened with
garden maintenance offered the plaintiff a licence on the island. The plaintiff
described the turf as a high quality, realistic looking turf. The dealer
offered the plaintiff an opportunity to learn how to install the product. She
went to the job site to learn the installation techniques, but found herself in pain, realized she couldn’t do the work necessary
and had to leave the site, leaving behind an angry dealer and what she saw as
serious damage to her business reputation for letting the dealer down.

[86]         It was at that point that the
plaintiff came to a realization that she could no longer work as a landscaper.
Until then she had “kept thinking that she would turn the corner at some point,
so kept putting in a huge effort in order to keep the company viable.” She
explained that she had tried hiring “help, but had learned that “no one works
like the owner”: at that stage of her business she had to provide her own
labour to keep it viable and develop it further.

L.A. Weight Loss

[87]         The plaintiff’s only other source of
income post-accident was at LA Weight Loss. According to the plaintiff’s
T4, she earned $10,475.70 there for the period between January 22, 2008 and
March 28, 2009 when the business closed and she was laid off. She explained
that she was able to carry out her clerical duties at LA Weight Loss
because there was a good balance between standing and sitting.

Calculating
Past Loss of Income

[88]        
I am satisfied that
because of the accident the plaintiff suffered a past loss of income. The
plaintiff’s poor record keeping makes it very difficult to assess its extent.
The plaintiff suggested a “conservative formula” for calculating the income
based on the statistically reported annual income of landscapers in the
province, which is about $28,000 per annum, using that as a basis for assessing
the plaintiff’s ‘with accident income’, and then deducting from that the amount
that the plaintiff received on various landscaping projects and her L.A.
Weight Loss wages. Those projects that do not have revenue amounts must
remain approximations, in most instances relying on acceptance of estimates by
Mr. Saliken and the plaintiff. The table below
sets out basic accepted available evidence for estimating the plaintiff’s ‘with
accident income’. Other assumptions are also included in the table. I did not
deduct taxes because the plaintiff most likely has enough deductions, carry forwards
and write-offs to the end of December 2009 to minimize taxes and this
assumption favours the defendant, in any event. The plaintiff’s ‘with accident’
income is based on the average annual earnings of people working as
landscapers, reduced slightly to reflect the initial start-up costs and then
increased by 10% per annum reflect likely expansion of the plaintiff’s business
and income growth. In my view, this is a reasonable basis for assessing the
income the plaintiff would have earned had the accident not occurred (‘without
accident income’). The 40% marginal rate for expenses is an estimate.

[89]        
I estimate and assess
past loss of income at $75,000 and award damages in that amount. If the parties
have any significant concerns about arithmetic, taxes or deductions they are at
liberty to apply with brief written submissions.

[90]         I note that the plaintiff could
achieve her with accident earnings only because her husband was able to do the
physical work for her, assisted by hired labour. In my view, she took
reasonable steps to mitigate her loss of income.

E.              
Loss
of Earning Capacity

[91]        
The client aspires to
earn an income higher than minimum wage. She is looking for fulltime work that
will allow her to alternate standing and sitting but which will also provide
her with future opportunities and enable her to raise a family.

[92]         In my view, as mentioned earlier,
the plaintiff had a good opportunity to develop a profitable landscaping
business. She possessed the energy, the personality, the training, and the
necessary understanding of marketing to succeed in that endeavour. Growth and
expansion in the Nanaimo area should have afforded opportunities to develop her
business.

[93]         The plaintiff may not have been able
to continue working as physically hard on a long term basis as she had been; to
be sure, with the prospective demands of raising children she would have faced
practical limits on the time available to her to run and grow her business.
Still, the accident happened at a critical time for her business. Like most
entrepreneurs, ‘sweat equity’ was her most important capital contribution. The
more she could do herself, the more she could keep for herself and use any
surplus to capitalize the expansion of her business by hiring workers for
larger projects. It is common knowledge that this is how many young enterprises
grow. In due course, she could have withdrawn from the physical side of the
business and diverted more time to marketing, managing, and maturing the
business. I am satisfied that that the plaintiff has lost a significant business
opportunity that should be taken into account in a proportionate and balanced
way when assessing her loss of earning capacity.

[94]         The plaintiff satisfies the test in Pallos v. ICBC, [1995]
3 W.W.R. 728, 53 B.C.A.C. 310. Given her youth and
the fact that she does not have an established career or settled employment,
damages for diminished earning capacity must be assessed at large: Sinnot v. Boggs, 2007 BCCA 267, 241 B.C.A.C. 274 at para. 16. At
the same time, her loss of opportunity must receive fair consideration.

[95]         My assessment is premised on the
fact that the plaintiff will not be able to return to work as a landscaper and
will have to find more sedentary employment in the future, and thereby faces
limitations in her employment. She now has to explore other options, with her
physical limitations closing off employment opportunities that require
repetitive lifting, bending, long periods of sitting or any moderately heavy
labour that were open to her before the accident.

[96]         Having focused her mind and energy
so resolutely on landscaping soon after she graduated from high school, the
plaintiff has never put her mind to an alternative career. No vocational
assessment was filed, which is not to suggest one was necessary.

[97]         Plaintiff’s counsel presented
various scenarios that calculated future losses based on having to work reduced
hours as a landscaper or in other kinds of employment. I considered these but
did not find them that useful.

[98]         The plaintiff is a young woman,
intelligent and capable of further education that could earn her an income that
is quite conceivably more secure, more remunerative and more conducive to
family life than a career in landscaping, even one that encompasses a
profitable landscaping business, as discussed. She has already demonstrated a
capacity for higher education with her high post-secondary grades and, with
that, career advancement. Even so, preparing herself for a new career will
require both time and money. The defendant is not obligated to put the
plaintiff in a better position than she was in before the accident, but the
defendant’s negligence has not only closed the plaintiff’s chosen career, but
any others like it. Conversely, if the award for loss of earning capacity does
recognize the plaintiff’s loss of opportunity and provisions some compensation
for higher education and retraining, the defendant should benefit from this.

[99]         After assessing and weighing all of
the above, I find an award of $150,000 for loss of earning capacity to be fair
and reasonable. This award properly encompasses the plaintiff’s lost
opportunity; the time and cost for retraining; the plaintiff’s diminished
physical capacity; her competitive value as an employee to herself and to potential
employers; and the more limited range of employment opportunities open to her.

VII.          
Summary of Damages

Non pecuniary damages:  
          $ 
85,000

Past loss of income:         
          $ 
75,000

Mr. Saliken’s Labour         
          $   
2,500

Loss of earning capacity

and
opportunity                
          $150,000

Cost of future
Care           
          $ 
44,000

Special Damages
(paid)                        
__

Total                                         
$356,500

________________________________________________________

VIII.         
Appendix Evidentiary Ruling on Departure Bay Clinical
            Records

[100]    
During argument,
counsel for the defendant advised he had not realized until trial that the
document styled “Interpretation of Clinical Records of Departure Bay
Physiotherapy Clinic” was prepared by a physiotherapist who had not treated the
plaintiff, and was an interpretation, not a verbatim transcription, of the
original record. The document contains a typed version of visits by the
plaintiff to the Clinic on March 29, April 4 and 6 and
August 24, 2005. Jennifer Schultz, a “locum physiotherapist”, signed the
document. It is common ground that Ms. Schultz did not complete the
original records. The physiotherapist who first treated the plaintiff was a
visiting physiotherapist from Australia, who has long since returned home and
was not called as a witness.

[101]     The document was provided, along with a copy of
the original handwritten records, to Dr. Vaughn, Dr. Reems,
Dr. Leete, and Dr. J. Filbey.

[102]     In September 2009, the plaintiff sent the defendant a Notice to Admit in
as follows:

TAKE
NOTICE that the
plaintiff requests that the defendant admit for the purpose of this proceeding
only, the facts set out below and the authenticity of the documents referred to
below, copies of which are attached.

AND TAKE
NOTICE that, unless
the Court otherwise orders, if the party to whom this notice is directed does
not deliver a written statement, as provided in Rule 31(2) within
14 days after delivery of a copy of this notice to him or her, then the
truth of the facts and the authenticity of the documents shall be deemed to be
admitted.

DATED at the
City of Nanaimo, in the Province of British Columbia, this 14th day of
September, 2009.

[103]     Item #8 in the documents to the notice is
the Departure Bay Physiotherapy Clinic records. They state:

8.        
Departure Bay Physiotherapy Clinic

(a)       
The

(i)         clinical records of Departure Bay Physiotherapy Clinic dated
March 29, 2005 to August 24, 2005; and

(ii)       
interpretation of clinical records of Departure Bay Physiotherapy
dated December 8, 2005

           
(the “DBPC Records”)

           
Were made or kept in the usual and ordinary course of business.

(b)       
It was in the usual and ordinary course of business of the authors of the DBPC Records to record therein the statements of fact
recorded at the time they occurred or within a reasonable time after that; and

(c)       
The notes recorded in the DBPC Records were made by
their authors at the time they occurred or within a reasonable time after that.

[104]    
I understand that the
defendant received a copy of the impugned ‘transcription’ several months
earlier.

[105]     In support of his submission that the impugned
document is not admissible, the defendant refers to s. 42(2) of the Evidence
Act, R.S.B.C. 1996, c. 124, Ares v. Venner, [1970] S.C.R. 608, 14
D.L.R. (3d) 4, Olynyk
v. Yeo, [1989] 3 W.W.R. 314, 55 D.L.R. (4th) 294 (B.C.C.A.) [Olynyk], McTavish
v. MacGillivray (1997), 38 B.C.L.R.
(3d) 306, 28 M.V.R. (3d) 235 (S.C.) [McTavish], and Seaman v. Crook, 2003 BCSC 464, 14 B.C.L.R. (4th) 132.

[106]     Counsel said that he did not realize that
Jennifer Schultz did not create the original record or make the observations
herself, or give the treatments noted in the record until trial. Counsel argues
that the letter is not admissible under s. 42(2) of the Evidence Act
or at common law. He submits that the December 2005 letter is an
“interpretation masquerading as a transcription”, and that only the original
author would be in a position to give an explanation of her shorthand symbols
or decipher her handwriting. He further submits that absent any evidence about
the original physiotherapist, we cannot know whether the statements made in the
clinical notes were within her area of expertise: Olynyk.

[107]     Further, he says that the interpretation does not meet the test for
admission because the clinical notes were made at the time when an ICBC claim was pending; they are the result of a referral
to the clinic by the family physician in the immediate aftermath of the motor
vehicle accident; and the interpretation was completed eight months later and
was commissioned by plaintiff’s counsel. They are therefore tainted by
litigation and inherently unreliable. He refers to the words of Burnyeat J. in McTavish
at para. 13:

[13]     
…great caution should be taken before allowing any observations or diagnosis
to be brought within the exception provided by Section 42 of the Evidence Act
if those observations and diagnoses are recorded at a time when litigation is
uppermost in the mind of the person making the declaration.

[108]    
Counsel submits that
“the interpreter of the clinical notes would have had the litigation uppermost
in her mind as she would have been ever mindful of which side was to pay her
translation fees”.

[109]     Further, with respect to the necessity of the
document in the case at bar, he says that any necessity which exists has been
created artificially, flowing from the fact that the original maker of the
documents is no longer available, a fact that should have been disclosed
earlier, not four years later, and thereby artificially creating a necessity
the plaintiff uses to pull up the socks of his argument for the admissibility
of hearsay records. He submits that the plaintiff should have given timely
notice and that any reliability concerns could have been dealt properly at the
time. He submits that the prejudicial result of the lack of notice is that the
defendant has been precluded from challenging the accuracy of records or
entries that stand revealed as inherently unreliable, by what amounts to a
stratagem.

[110]     First, in my view, the plaintiff’s notice does
not refer to the letter as a transcription of the records, but as an
interpretation of them; the letter preceding it stated that the author had
explained the physiotherapy records in layman’s terms. Therefore, the defendant
had early notice that the letter was not necessarily a literal transcription.

[111]     It would have been preferable if the plaintiff
had given the defendant more precise notice by expressly seeking its admission,
and the facts contained in it, as an accurate interpretation of the records
originally made by the treating physiotherapist. It would also have been
preferable if plaintiff’s counsel had raised the problem of the availability of
the original treating physiotherapist. However, the notice is self-explanatory
and counsel for the defendant could have made any inquiries he deemed necessary
at that time.

[112]     The letter is signed by Jennifer Schultz, who
clearly identifies herself as a “locum physiotherapist”, which in and of itself
raises a question as to whether she was the original treating physiotherapist.
Moreover, the handwriting varies across the records, with possibly two or even
three different styles of handwriting, and it is not unusual to see different
treating physiotherapists in a physiotherapy clinic, based on their individual
availability for appointments.

[113]     Further, it is logical to assume that
physiotherapists would employ similar notation methods so that other following
physiotherapists who need to read them could readily understand them. It is not
necessarily correct that only the original authors would be qualified to
explain the shorthand symbols or decipher their handwriting. In any event,
without any assistance, and despite poor photocopies, I can easily decipher the
fact that the plaintiff complained that she was involved in a motor vehicle
accident on March 19, 2005; that she was the driver; that her head was
turned to the right at the time of impact; that she had symptoms on the left
side of her neck and into the scapula, with headaches; that she had been taking
Robaxacet with Advil and ice for therapy; that
her symptoms were aggravated by walking and running, exercising and bending;
that in the morning and at the end of the day, she complained of stiffness;
that she was a landscaper; that she was off work at the present time; and that
she had a very tight lumbar spine. There is a reference to symptoms in the
evening that I could not decipher.

[114]     As for the defendant’s argument regarding
necessity, I note that the defendant raised this objection for the first time
during argument. At that point, the only alternative would be to adjourn the
trial, which is an important practical consideration.

[115]     The circumstances here are different from those
found in the authorities cited by the defendant’s counsel, given that the
defendant had already admitted them pursuant to the notice, which, while
flawed, did give sufficient notice to the defendant that the plaintiff was
asking the defendant to admit the accuracy of the interpretation of the
original clinical notes.

[116]     One can understand how counsel could have
overlooked the significance of the characterization of the December 8,
2005 letter as an interpretation, the signatory identifying herself as a locum
physiotherapist, and the varying handwriting found in the records; but the
defendant’s objections are now too late in the day. I see little prejudice to
the defendant, especially in light of the fact that I have accepted the
evidence of the plaintiff and Mr. Saliken that she
felt lower back discomfort soon after the accident, that this became her
predominant symptom and that she saw the physiotherapist with these complaints
and received treatment for them.

[117]     Therefore, the interpretation dated
December 8, 2005 remains in evidence.

“N. Brown J.”