IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100504

Docket:
M061563

Registry: Vancouver

Between:

Sophie
Frangolias

Plaintiff

And

Rosaline
Parry and Cyril A. Parry

Defendants

– and-

Docket:
No. M061564

Registry:
Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

Between:

Sophie Frangolias

Plaintiff

And

Nitesh Verma and Divya Darubra

Defendants

Before: The Honourable Mr. Justice Walker

Reasons for Judgment

Introduction and Initial Findings

[1]      The plaintiff, Sophie
Frangolias, seeks recovery of loss, damage, and expense arising from two motor
vehicle accidents that occurred in December 2004.

[2]      The first accident occurred on
December 13, 2004, on 49th Avenue as Mrs. Frangolias was heading towards
Granville Street.

[3]      The second accident occurred
eleven days later, on December 24, 2004, on Steveston Avenue in Richmond, BC.

[4]      The exact location of both
accidents is not important since liability is not in dispute.

[5]      The two lawsuits commenced on
behalf of Mrs. Frangolias were tried together.

[6]      I was not asked to determine
the specific injuries caused by each motor vehicle accident; instead, I have
been asked to provide a global assessment for the damages suffered as a result
of both accidents.

[7]      No claim has been advanced for
wage loss, or loss of income earning capacity. Mrs. Frangolias seeks
recovery for:

(a)      non
pecuniary damages;

(b)      cost of
future care;

(c)      special
damages; and

(d)      an
in-trust claim for her husband, Kristos (“Kris”) Frangolias.

[8]      Mrs. Frangolias was
involved in a third motor vehicle accident that occurred on November 7, 2008. She
was at fault for that accident and has not made a claim.

[9]      Mrs. Frangolias was born
in August 1942 and raised in Kalamata, Greece. She is 68 years old. She
immigrated to Canada in April 1964.

[10]    Mrs. Frangolias became a
Canadian citizen, and eventually married her husband Kris. He is approximately
72 years old. Mr. and Mrs. Frangolias have been married for over 45
years. They had three children: two sons and one daughter. One of their sons died
in 1999.

[11]    Mrs. Frangolias has a
grade 6 education. Her command of the English language is rudimentary. She gave
her evidence through an interpreter.

[12]    Mr. and Mrs. Frangolias
live in Richmond. Their daughter, Effie, now Effie Ainsley, lives nearby with
her two young children – a four and a half- year old son and a four- month old
daughter. The Frangolias’ son, Teddy, lives in Surrey.

[13]    Mr. and Mrs. Frangolias’
second son died from a gun-shot wound on September 17, 1999. It is not clear if
it was an accidental death or suicide. Regardless, the loss of their son had a
devastating impact on Mr. and Mrs. Frangolias, more so on Mrs. Frangolias
who became clinically depressed requiring treatment from a psychiatrist for
depression.

[14]    By 2002, Mrs. Frangolias’
depression was diagnosed by Dr. Kontaxopoulos, a psychiatrist, as “Major
Depression” with resulting weight loss, insomnia, reduced concentration,
intense compulsiveness, extreme irritability, and agitation. Fortunately, she
made substantial improvement in the course of three weeks of treatment of 20 mg
of Paxil, prescribed by Dr. Kontaxopoulos to be taken daily.

[15]    At the time the two motor
vehicle accidents that are the subject of this action occurred (“December
MVAs”), Ms. Frangolias was between 5 feet. 5 inches and 5 feet 6 inches in
height and weighed 145 pounds. Today she weighs approximately 150 pounds.

[16]    Apart from her depression, the
only other medical problems of significance that Ms. Frangolias suffered
prior to the December MVAs were:

(a)      a right knee injury suffered as a young woman in Greece
some 40 years ago when she fell down some stairs in Athens. That knee injury
has bothered her over the years causing pain – it continues to be problematic
from time to time; and

(b)      heart palpitations resulting from a condition known as
“SVT” or supraventricular tachycardia (which means a rapid heartbeat
originating from the atria of the upper chambers of the heart) – the medical
evidence shows that there is nothing wrong with Ms. Frangolias’s heart.

[17]    I accept the evidence of Mrs. Frangolias
that neither the right knee nor the arrhythmia were disabling to her prior to
the December MVAs.

[18]    Having regard to all of the
evidence, and with respect to Mrs. Frangolias’ life prior to the December
MVAs, I also find that:

(a)      Mr. and Mrs. Frangolias had what can only be
described as a traditional marriage.

(b)      Mr. Frangolias worked primarily in the restaurant
business. He owned and operated several Greek restaurants in the Lower Mainland
over the years. As their daughter Effie put it, her father “brought home the
bacon”.

(c)      Given the long hours involved in the restaurant business, Mr. Frangolias
did his best to attend his children’s sporting events.

(d)      He also mowed the lawn, washed the cars, and helped his
wife with the grocery shopping occasionally. Otherwise, Mrs. Frangolias
looked after all matters relating to the household, raising the family, and
looking after the garden.

(e)      Mr. and Mrs. Frangolias entertained family and
friends, at their home, including large family dinners, on a regular basis. Mrs. Frangolias
looked after organizing those events, the cooking and cleaning.

(f)       Prior to the December MVAs, Mrs. Frangolias enjoyed
gardening very much. She dug the soil to plant her flower and vegetable garden
(which she took great pride in), and looked after the planting and fertilizing.

(g)      Prior to the December MVAs, Mrs. Frangolias visited
family and friends on a regular basis, attended the Greek Orthodox Church in
Vancouver at least every second Sunday, went to local casinos once or twice per
week to play the slot machines, enjoyed driving to West Vancouver, White Rock,
and Bellingham for shopping, and was very active.

(h)      Prior to the onset of depression caused by her son’s death,
Mrs. Frangolias was very social and outgoing.

(i)       The Frangolias’ household routine, which I have set out,
carried on after Mr. Frangolias retired except that Mr. Frangolias
would do a bit more cooking, keeping in mind that Mrs. Frangolias took
great pride in her ability to cook and keep their home.

(j)       Immediately prior to the December MVAs, Ms. Frangolias’
depression was under control and she had demonstrated substantial recovery.

Circumstances
of the December MVAs

[19]    The following description of
the circumstances leading up to and immediately following both accidents comes
from the evidence of Mrs. Frangolias and her husband, as well as their
daughter Effie Ainsley, who is 38 years old (born on May 10, 1971).

[20]    I wish to say at this time that
I accept the evidence that follows in this section of my reasons for judgment,
concerning the circumstances of the December MVAs and the initial effects upon Mrs. Frangolias.

[21]    I also wish to note that
neither Mr. Frangolias or Ms. Ainsley were cross-examined and their
evidence was not challenged. I found them both to be very honest and credible
witnesses, as well as accurate historians. They did their very best to describe
the effects of the the December MVAs on Mrs. Frangolias in the five and one-
half years that have elapsed.

December
13, 2004 MVA

[22]    As Mrs. Frangolias was
heading towards Granville Street, the defendant driver failed to stop at a stop
sign. He crashed into the vehicle being driven by Ms. Frangolias, which
was valued at over $10,000. It was a total write-off.

[23]    The air bags deployed on impact.
Mrs. Frangolias was wearing a seat belt. She was shaken up. Fortunately, Mrs. Frangolias
did not have to attend the hospital.

[24]    An ambulance did attend at the
scene. Mrs. Frangolias was disoriented at the accident scene and she could
not remember where she was.

[25]    She was in pain the next day. Mrs. Frangolias
was shaking. She remained resting and doing very little for several days. She
also saw her family doctor.

[26]    Mrs. Frangolias suffered
pain in her neck and experienced pain throughout her body. She was moving at a
slower pace than she had immediately prior to the December 13 accident.

[27]    Mrs. Frangolias’ symptoms
eventually settled, to the point that by December 24, she felt comfortable
and confident enough to drive in order to do some last minute shopping for
Christmas, including grocery shopping.

December
24 MVA

[28]    On her way home from shopping,
at approximately 5:00 to 6:00 p.m., and while travelling on Steveston Avenue in
Richmond, Mrs. Frangolias heard a noise behind her. She then felt pain in
her back and felt as if someone was pushing her vehicle forward even though Mrs. Frangolias
had her foot pressed on the brake pedal.

[29]    Essentially, the vehicle driven
by the defendant driver drove into the rear of Mrs. Frangolias’ vehicle as
she was moving, sending her vehicle approximately 200 feet forward.

[30]    After her vehicle came to a
stop, Mrs. Frangolias was shaking all over. She was afraid. Mrs. Frangolias
felt pain in her head and throughout her entire body. She was confused and
unsettled. She could not remember phone numbers such as her daughter’s number
or her address. Eventually, she settled enough so that she could recall a
number to contact Mr. Frangolias. A call was placed to him at home. He
drove to the accident scene with Ms. Ainsley.

[31]    Mrs. Frangolias was taken
to the hospital by ambulance, and stayed there for observation, examination,
and testing until approximately 1:00 a.m. While in the hospital, she was given
two shots and some pills to stop her from shaking.

[32]    The vehicle she was driving, a
Dodge Stratus, was badly damaged. It was written off.

[33]    Mrs. Frangolias was
affected by the pain killer medication she was given that evening. She does not
drink alcohol. The pain killers made her appear intoxicated.

[34]    Mrs. Frangolias was not
able to get out of bed for much of Christmas Day due to the pain she felt
throughout her entire body. She could not get up to go to the washroom
unassisted. Mr. Frangolias cooked Christmas dinner. Ms. Frangolias
took Tylenol 3s until she could see her doctor the next day.

The Injuries
Mrs. Frangolias Claims to have Suffered from the December MVAs

[35]    Mrs. Frangolias claims to
have suffered the following injuries from the December MVAs:

(a)      face
pain;

(b)      head
pain;

(c)      neck
pain;

(d)      pain
around her eyes;

(e)      back
pain;

(f)       aggravation of her pre-existing depression with resulting
symptoms of irritability, emotional upset, anxiety, and mood alterations; and

(g)      pain
in her left knee.

[36]    According to Mrs. Frangolias,
the pain starts in her head and runs through her entire body as if it were on
an electrical wire. She suffers from pain every day, pain that runs throughout
her body, mainly in the back, from her head to her shoulders, and down her back
to her tail bone. She takes Advil and Tylenol 3s every day, which help her to
relax “a little bit”.

[37]    Mrs. Frangolias says that
her headaches are continuous. She put them, at the time she gave evidence, at a
level of 7 on a scale of 0 to 10, with 10 being the worst pain imaginable.

[38]    She also says that the
injuries she suffered in the December MVAs have had a significant adverse
effect on her life. In describing those effects, Mrs. Frangolias
testified:

(a)      that
she is not able to work in her garden as she used to;

(b)      while she can pull deadheads off of her flowers and pick
plants, she is unable to dig the soil, spread fertilizer, and plant plants;

(c)      she
is only able to perform very light household duties;

(d)      that she is only able to cook a little bit, such as making
coffee or preparing a light meal (such as a salad);

(e)      every
time she uses the washroom, she feels pain in her head;

(f)       every
time she moves her feet, she feels pain in her head;

(g)      the pain she feels in her left knee comes and goes – she
feels it most when she is walking;

(h)      her hands will go numb from time to time – she is not able
to iron or sew;

(i)       when she hurts more, she feels depressed  and has had to
increase her Paxil to two tablets, or 40 mg per day;

(j)       as for valuing the levels of her pain she suffers
elsewhere than her head, she said, at the time of trial, she felt that her neck
pain was 6 to 6.5 out of 10, her back pain at 6.5 to 7, her pre-existing right
knee pain at 5 out of 10, and her left knee pain at 4.5 to 5 out of 10; and

(k)      that there has been very little improvement in any of her
symptoms since the second MVA.

What Mrs. Frangolias
says is the Effect the Injuries she Suffered from the December MVAs have had on
her Lifestyle

[39]    Mrs. Frangolias says that
she has participated in several different rehabilitation and exercise programs,
including a program offered by Karp Rehabilitation, where she attended 15 times.
She says that while exercise provides her with some pain relief, that relief is
minor and temporary (lasting for about one to two hours). Currently, Mrs. Frangolias
goes out of the house, twice per week, to the Garratt Wellness Centre to
exercise for about an hour. She does this upon the advice of her family doctor.
Mrs. Frangolias does not think it is of much value to help relieve the
pain, although she did agree that moving around does help her feel better on a
short term basis.

[40]    When asked why she stopped
attending the Karp program since that facility recommended that she continue, Mrs. Frangolias
said that she was advised by her ICBC adjuster to stop. No evidence was called
to challenge or rebut that statement. I also accept Mrs. Frangolias’
evidence that she did not know she could pay for the KARP program herself. I am
satisfied that Ms. Frangolias would pay for a reasonable exercise program
even if she did not think it was ultimately beneficial. Even though Mrs. Frangolias
believes that exercise programs do not afford her anything more than temporary
relief from pain, she has, in fact, paid for an exercise program out of her own
pocket.

[41]    Mrs. Frangolias has tried
massage therapy and says it has not provided any beneficial effects.

[42]    Mrs. Frangolias relies on
her husband to help her cope with day-to-day living; he does much of the grocery
shopping, cooks all of the meals, and carries out all but light housework.

[43]    For example, she said that Mr. Frangolias:

(a)      has
to help her up the stairs at their home;

(b)      does all of the vacuuming, laundry, lifting pots and pans,
and much of the grocery shopping;

(c)      during the first month following the December 24th MVA, did
all of the work for the home, in addition to caring for Mrs. Frangolias as
she was basically bed-ridden; and

(d)      had to help her get to the bathroom as she had difficulty
getting out of bed due to the pain.

[44]    As for her typical day, Mrs. Frangolias
said that currently, she gets up at 9:00 or 10:00 a.m., has breakfast (usually
cereal), and then takes her pills for pain relief. She watches television, and
from there makes a light lunch for herself and her husband. Mrs. Frangolias
does some very light household chores (such as loading the dishwasher which she
does slowly) and a little bit of the laundry. She then drives to her daughter’s
home, which is two blocks away, to see her grandchildren.

[45]    Mrs. Frangolias also says
that she is not able to care for her grandchildren due to the pain.

[46]    She does not attend church as
often as she did before the December MVAs. She now attends every second or
third Sunday. Likewise with the casino, she still goes with her husband,
although less frequently. She has been able to take several vacations since the
December MVAs, including a cruise and a trip to Las Vegas with her daughter.

The
November 7, 2008 MVA

[47]    Mrs. Frangolias was involved
in a motor vehicle accident near her home on November 7, 2008 when her vehicle
crossed the centre line and collided with another vehicle. Mrs. Frangolias
says that she suffered minor, transient injuries in that accident that she says
amounted to a brief exacerbation of her pre-existing injuries suffered in the
December MVAs.

The
Position of the Defendants

[48]    The submission advanced on
behalf of all of the defendants was that:

(a)     there
is an absence of any objective evidence of injury;

(b)     Mrs. Frangolias
is pain focused to an unreasonable extent;

(c)     Mrs. Frangolias is a poor historian whose account of
her pain symptoms and their disabling effects is not reliable;

(d)     some of Mrs. Frangolias’ complaints are related to her
pre-existing right knee injury, pre-existing osteoporosis, and pre-existing
anxiety;

(e)     the soft tissue injuries she suffered in the December MVAs
should have resolved by now;

(f)     some of the symptoms Mrs. Frangolias complains of were
caused by the November 7, 2008 motor vehicle accident;

(g)     there is no medical evidence to show that Mrs. Frangolias’
pre-existing depression was aggravated by the December MVAs;

(h)     Mrs. Frangolias
has failed to mitigate her damages; and

(i)      there is no basis for a loss of housekeeping capacity claim
or an in-trust claim.

My View
of Mrs. Frangolias’ Credibility and her Account of her Injuries

[49]    I agree with the defendants’
submissions that Mrs. Frangolias is a poor historian. She tended to
downplay symptoms arising from injuries not related to the December MVAs. Having
said that though, I wish to make my view very clear that I do not think Mrs. Frangolias
to have intentionally exaggerated her pain and symptoms. To the contrary, my
determination of Mrs. Frangolias’ credibility is that she did her very
best to provide what she believed to be an accurate account of the injuries she
suffered in the December MVAs.

[50]    If Mrs. Frangolias was
engaged in disingenuous pain behaviour, or intended to exaggerate her
complaints, she could have:

(a)      easily claimed that her right knee was banged up in either
accident, so that her right knee pain was aggravated – she did not;

(b)      downplayed the problems that her right knee injury caused
prior to the December MVAs but did not; instead, Mrs. Frangolias said that
her right knee caused her problems standing and walking prior to the December
MVAs;

(c)      denied ever having suffered any pain to her left knee prior
to the December MVAs, and instead testified that she was not sure if she
suffered pain in that knee before the accidents occurred; and

(d)      blamed the problems she has lifting with her sore wrists on
those two accidents; instead, she said that when she lifts anything heavy,
i.e., two to three pounds or more, her head hurts.

[51]    The fact that Mrs. Frangolias’
evidence was at times inconsistent with notes contained in the clinical records
of several treating physicians is, in my view, explained by her limited
education, distraction, and ongoing anxiety caused by the pain that she suffers
on an ongoing basis, and the fact that she is not proficient in the English
language. On a number of occasions while she was giving her evidence, Mrs. Frangolias
tried to answer questions in English, rather than waiting for the interpreter
to finish. Rather than hide behind an interpreter, taking extra time while the
question was being interpreted to consider her answer, Mrs. Frangolias
answered the question in English. I took this to be an honest attempt on her
part to give her evidence in as direct a fashion as she could. In observing
these exchanges, it became clear that Mrs. Frangolias did not fully
understand a number of the questions that were put to her.

[52]    Nonetheless, given my concern
that Ms. Frangolias’ account of her injuries and symptoms is not
completely reliable, I have, for the purpose of determining the quantum of
damages in this case, placed considerable reliance upon the evidence of Mr. Frangolias
and Effie Ainsley, and the medical evidence.

The Account
given by Mr. Frangolias and Effie Ainsley

[53]    As I have said, Mr. Frangolias
and Effie Ainsely gave their evidence in a very candid and credible manner. They
provided a concise account of the outward manifestations of pain exhibited by Mrs. Frangolias
as well as the effect of the December MVAs on her life.

[54]    Mr. Frangolias lives with
his wife. Effie Ainsley has seen her mother approximately every two days since
the December MVAs. Given my views of their credibility, and given their
proximity to Mrs. Frangolias, I view their evidence to be reliable.

[55]    Mr. Frangolias and Effie
Ainsley corroborated a significant amount of the evidence given by Mrs. Frangolias.
They confirmed that prior to the December MVAs:

(a)      Mrs. Frangolias was recovering from the depression
caused by her son’s death;

(b)      in the four months prior to the December MVAs, Mrs. Frangolias
was gaining weight and behaving as she used to before her son’s death;

(c)      in terms of looking after the house, Mrs. Frangolias
did all of the laundry, cooked meals, washed the dishes, did all of the
vacuuming, did much of the grocery shopping, made the bed, and carried out all
of the gardening activities (such as planting the summer flowers, digging the
soil, moving potted plants, cleaning the yard, and hosing the driveway);

(d)      Mrs. Frangolias was very social and outgoing, spending
lots of time with family and friends, hosting large family dinners, going to
the casino one to two times per week, and to church regularly; and

(e)      Mrs. Frangolias
was not disabled due to pain.

[56]    Mr. Frangolias and Effie
Ainsley described the significant adverse effect the December MVAs had on Mrs. Frangolias’
life, corroborating the evidence given by Mrs. Frangolias concerning the
limitations on her life that I have previously outlined in these reasons for
judgment. They also gave evidence that in addition to taking a lot of pain
relief medication, Mrs. Frangolias’ attitude is affected by the pain: she
is nervous, agitated, moody, and sometimes difficult if not impossible to
communicate with. According to Mr. Frangolias, there are occasions when
his wife is in such pain that communicating with her is, as he put, “sometimes
like talking to a wall”. Mr. Frangolias and Effie Ainsley also said that Mrs. Frangolias
shows signs of depression from time to time. Recently, Mr. Frangolias said
his wife is worse than she was after the death of their son.

[57]    Effie Ainsley testified about
the adverse effect the December MVAs have had on her parents’ relationship. According
to Ms. Ainsley, her parents argue a lot because her mother is irritable. As
she put it: “[we are] walking on nails around her; the littlest thing will
trigger her off”.

[58]    Mr. Frangolias also
confirmed that his wife was not able to actively care for their grandchildren. His
evidence corroborated Mrs. Frangolias’ evidence, given in
cross-examination, that even though their grandson came to their home every day
for several months in 2005 while Effie Ainsley was looking for daycare, it was Mr. Frangolias
who looked after the young boy.

[59]    Mr. Frangolias and Effie
Ainsley also confirmed that the November 7, 2008 motor vehicle accident caused
minimal aggravation to Mrs. Frangolias’ pre-existing symptoms arising from
the December MVAs.

[60]    Lastly, Mr. Frangolias is
likely going to hire help with the housekeeping and laundry since he finds it
too much for him. He finds bending down to dust and carry out other household
chores too difficult at his age.

[61]    The only evidence concerning
housekeeping costs came from Ms. Ainsley. She currently pays a rate of $16
per hour (negotiated down from $20 per hour) for eight hours per week for
laundry and a housekeeper who also cooks meals. She also pays a cleaning
company $40 per hour for two people to clean. Based on her experience, and her
knowledge of her parents’ home, Ms. Ainsley estimated that 8 to 10 hours
per week would be required to hire help for housekeeping and cleaning at their
home.

The
Medical Evidence

[62]    Mrs. Frangolias has been
diagnosed to have chronic pain caused by the December MVAs. Dr. Liu, Ms. Frangolias’
family doctor since October 2006, has opined, in her medical-legal report dated
May 30, 2008, that since the December 2004 MVAs, Mrs. Frangolias “has had
chronic daily symptoms. In my opinion it is most probable that her current
complaints were caused by the accidents she was involved in”.

[63]    In
her medical-legal report dated April 2, 2007, Dr. Liu opined that Mrs. Frangolias’:

… symptoms of
chronic headache, neck and back pain, and dizziness have not changed since the
time of the accident[s]. They have not worsened to any degree and her headaches
did go from constant to intermittent with active rehab. She has seen a
neurologist, Dr. G Robinson, a headache specialist, who diagnosed her with
post traumatic headaches. His advice regarding prognosis was that, given there
is no effective treatment for post traumatic headache, that her headache pain
is likely to persist. He tried her on a trial of topamax; however, she has been
unable to tolerate it due to side effects and has stopped it. It did not help
lessen her pain. My sense regarding prognosis is that she will not worsen and
will stay the same. However, I have referred her to the Pain clinic at St.
Pauls Hospital and my hope is that she will have some improvement in her
symptoms.

[64]    Dr. Liu was also of the
opinion, at that time, that it was “worthwhile” for Mrs. Frangolias to try
massage therapy, hydrotherapy, and physiotherapy to provide some pain relief. She
also recommended that Mrs. Frangolias remain taking Paxil and Ativan for
sleep and considered whether to prescribe Gabapentin since it acts on
neuropathic pain. A decision was made to hold off on trying Gabapentin as Mrs. Frangolias
had an adverse reaction to Topamax (i.e., tingling in her fingers) which had
not resolved itself by that time.

[65]    Dr. Liu
provided a follow up assessment 13 months later in her report of May 30,
2008. In that report, she stated:

Based on my clinical notes and consult notes
from Dr. Travlos and Dr. Robinson, Ms. Frangolias has a
diagnosis of muscular neck and back pain. Her headaches are likely related to
muscle tension and neck pain; Dr. Robinson gave her a diagnosis of chronic
post traumatic headaches.

Given the fact
that despite many trials of medications and therapies Ms. Frangolias’
symptoms still persist daily, my prognosis for recovery is guarded. Dr. Robinson
clearly states in his consult that “her condition is probably refractory as I
doubt there is any treatment that will make headway in reducing her pain.”  Dr. Travlos’
consult concurred with this stating “realistically, Ms Frangolias is going to
continue to be just as symptomatic as she is now into the future”.

[66]    Dr. Liu
recommended that Mrs. Frangolias continue with an active exercise program.
In considering the benefits of pain medication and alternate therapies, Dr. Liu
expressed the following opinion:

It has been recommended to Ms. Frangolias
to continue with an active exercise program and if possible to increase her
dose of nortriptyline further, although this has no seemed to benefit her to
date and she has been on this medication for many months. Dr. Robinson
advised that in cases of post traumatic headache muscle relaxants, analgesics,
and anti-inflammatories are usually of minimal to no benefit. I have advised
her that some alternative therapies she may consider are acupuncture,
intramuscular stimulation, or prolotherapy but that these modalities are still
considered complementary therapies and not standard and proven to give benefit
or to be completely safe. She can continue with physiotherapy, massage, or
chiropractic care if [she] finds it helpful.

It is unlikely
that Ms. Frangolias would require surgery in the future as her symptoms
are muscular in origin and there is no recommended surgery to remedy this.

[67]    Dr. Liu
also opined that in her report of May 30, 2008 that Mrs. Frangolias is
partially disabled from the December MVAs:

Ms. Frangolias
continues to be partially disabled at this time from doing her recreational
activities including gardening and caring for her grandson as well as from her
household activities such as those outlined above [i.e., cooking, cleaning, and
vacuuming]. She lives in a constant state of “aching all over”, feeling dizzy
and mildly weak with poor balance, and having constant headache. Her mood is
quite irritable and poor at times especially into the afternoon or evening when
her pain is worse.

[68]    In
considering whether the December MVAs aggravated Ms. Frangolias’
pre-exisiting depression, Dr. Liu wrote in her report of April 2, 2007
that she could not be certain. After reporting that Mrs. Frangolias was
treated by psychiatrist Dr. Kontaxopoulos from March 2002 to his retirement
in February 2005, Dr. Liu wrote:

[Mrs. Frangolias]
has been on paxil 20mg every morning since that time with some ativan to help her
sleep. She has advised me that her mood has been great 10/10 when I first met
her although recently she is finding herself a bit more irritable. Given she
says that her depression is stable and she is in a generally good mood while
taking the paxil I cannot say that her injuries have aggravated her depression
since she says it hasn’t worsened. However, whether she would have been able to
come off the paxil if it had not been for the MVA[s] I cannot judge. Whether
her depression has aggravated the way she experiences pain from the injuries is
difficult for me to answer and perhaps best left to a psychiatrist or rehab
specialist.

[69]    Dr. Liu
referred Mrs. Frangolias to Dr. Travlos, who is a specialist in
physical medicine and rehabilitation. He saw Mrs. Frangolias for the first
time on June 8, 2007. The results of his examination of Mrs. Frangolias
are set out in his report of the same date. He found full range of motion in
the cervical spine:

Cranial nerve exam reveals equal pupils,
full extraocular movements, and visual fields intact. Facial strength and
sensation is symmetrical. Palate elevates symmetrically and the tongue
protrudes midline. She has a strong shoulder shrug. Further examination of her
neck reveals full symmetrical neck range of motion. At end range, she does
complain of generalized diffuse neck pain. Spurling’s test is negative
bilaterally. She has good opening of the jaw. Palpation of the
temporo-mandibular joint did not reveal any clicks but she does complain of
mild tenderness in the area.

Palpation throughout the upper neck and back
brings-out generalized muscular tenderness. She is tender over the trapeziius,
rhomboid, levator scapulae, supraspinatus, and cervical paraspinal muscles. There
are no specific trigger points identified. She is also tender over the
scalenes, especially on the right side, and the right-sided scalenes are
noticeably thickened and enlarged. Thoracic outlet testing is negative on the
left, but she had a positive Allen’s test on the right with symptoms of
numbness starting to occur in her fingers.

Upper extremity strength examination is
normal. Sensory examination to light touch did not reveal any focal changes,
but the patient did complain of mild numbness in the fingers and hands. Tone is
normal bilaterally. Reflexes are symmetrical except at the biceps with 2+ on
the right and 1+ on the left.

Upper extremity
joint range of motion is well within normal limits. Specifically at the
shoulders, the patient had full internal and external rotation and forward
flexion.

[70]    Dr. Travlos’
diagnosis was that Mrs. Frangolias’ pain was muscular in nature. In
providing his “impression and plan” to Dr. Liu, Dr. Travlos wrote:

Since [the December MVAs], the quality of
the pain has not changed. [Ms. Frangolias] has constant occipital
headaches radiating to her jaw and behind the eyes. She also has generalized
neck pain that radiates down towards her shoulders and mid back. Once again,
this pain is constant and she has only minor relief of her symptoms with
medications. Her sleep, energy and mood have also been affected.

Examination reveals diffuse muscular
tenderness in the neck and upper back. No specific trigger points are
identified. Her neck range of motion is full and symmetrical and general
neurological exam is within normal limits.

Overall, based
on history and physical examination, it is our impression that Ms. Frangolias’
pain is muscular in nature. The muscle tenderness presents with a more
myofascial picture; however, no specific trigger points are identified. Her headaches
are likely related to the muscular tension and pain in her neck.

[71]    Dr. Travlos recommended an
exercise program for which he gave her a prescription and a prescription for Nortriptyline
to help with her sleep.

[72]    Mrs. Frangolias
attended a follow up appointment with Dr. Travlos on September 7, 2007.
Mrs. Frangolias acknowledged that she had not begun the exercise program. In
his report to Dr. Liu on the same date, Dr. Travlos advised:

Ms. Frangolias was seen for follow up. She
came in with the same ongoing concerns. She emphasized the fact that she has
not changed at all since her accidents and there has been no discernable
difference in her symptoms whatsoever over the course of time. She described
that she continues to have the same exact symptoms “everyday the same, day and
night”.

She continues on the same medications as
previously and not much has changed. She stated that she has read my report and
wonders how it is possible for her headaches to change. She has not begun her
activation program nor has she gone back on the nortriptyline as requested.

Realistically, Ms. Frangolias is going
to continue to be just as symptomatic as she is now into the future. Obvious,
if she does begin exercising, she has to perceive this as being of benefit to her
or else it will also be a waste of time. I also recommend that she consider
trying the nortriptyline for longer, but again she has to perceive this as
being of benefit in order for it to be so.

Other than the
above, there really is not much else to add to Ms. Frangolias’ treatment. I
did not recommend any further investigations. She will obviously need to be
followed from time to time for her bone density but she does not really need
any specialized testing for her current symptoms. She is going to need to learn
to live with her symptoms, pace herself, and keep herself active in order to
distract her from her pains. The more she does, the better for her.

[73]    In
a medical-legal report prepared approximately one month prior, on August 2,
2007, Dr. Travlos noted that Mrs. Frangolias was “extremely
pain-focused”. In terms of the nature of her injuries caused by the December
MVAs, Dr. Travlos was of the opinion that Mrs. Frangolias has
“diffuse generalized body pain” which is “in keeping with” chronic pain:

With the
diffuseness of Ms. Frangiolias’ symptoms, it is clear that she does not
have any focal abnormality. She simply has diffuse generalized body pain that
is definitely in keeping with a chronic pain disorder. The majority of the pain
is muscular with myofascial pain being the predominant picture here. However,
she did not have any focal tender points or trigger points. Her symptom
complaints that include tingling in her extremities would be consistent with
myofascial pain and not a neurologic problem. Similarly, Ms. Frangiolias’
head pain is more in keeping with muscular tension pain as part of her muscle
discomfort.

[74]    Dr. Travlos recommended
that Mrs. Frangolias be as active as possible, to “push the boundaries of
her pain as the activities will not likely harm her”. He said, in his report of
August 2, 2007, that “the more she does the more she will be able to do”. He
said that she could “certainly return back to all aspects of yard work and
other chores around the home”. He would not restrict Mrs. Frangolias’
participation in household chores and activities around the home “other than
that related to the intensity of her pain”.

[75]    In terms of whether the
December MVAs aggravated Mrs. Frangolias’ pre-existing depression, Dr. Travlos
opined, in his medical-legal report of August 2, 2007, that “It is likely that
the pains are making the depression worse”. He added: “It is also probable that
the pains and the depression are affecting her focus and attention and,
thereby, causing her to feel that she has greater memory deficits than she
has”.

[76]    As for whether Mrs. Frangolias’
pre-existing right knee injury is responsible for any of the disability she
complains of following the December MVAs, Dr. Liu was of the opinion that
the limitations complained of by Mrs. Frangolias are due to daily
headaches, dizziness, and pain “radiating to her head and throughout her body”.
Dr. Liu referred to these as “systemic symptoms” that limit Mrs. Frangolias
from doing any housework.

[77]    Dr. Travlos examined Mrs. Frangolias
on June 27, 2008 in respect of her right knee complaints. It had become swollen
in the previous few months, in a way it never had before, which limited Mrs. Frangolias’
ability to walk up stairs and to walk several blocks. Dr. Travlos
concluded her right knee problems were due to pre-existing arthritis. He
recommended a diagnostic work-up including an x-ray and prescribed Celebrex for
12 days.

[78]    Dr. Liu
also provided an opinion concerning the effects upon Mrs. Frangolias of
the November 7, 2008 motor vehicle accident. In her medical-legal report dated
February 7, 2010, Dr. Liu advised that Mrs. Frangolias’ condition had
“worsened somewhat”. Dr. Liu wrote:

As a result of the November accident I believe
Mrs. Frangolias’ condition has worsened somewhat. She complains that the
painful pulling sensation she feels from her face to the back of her head is
worse. She still has ongoing headaches, neck aches, and back aches, and also
has increasing complaints of the feeling of pulling a string from her head to
her heels.

…

I can not isolate specific injuries as a
result of the November 2008 accident. Mrs. Frangolias’ chronic pain was
not improving very much before that accident and I am not sure if this most
recent accident would have further decreased the likelihood of recovering. Therefore
I cannot give a prognosis specifically with regard to the expected long-term
effects from the November 2008 accident in isolation.

In general Mrs. Frangolias
continues to see me every 4-6 weeks and has consistent chronic headaches, pain
in her face, back of head and neck, pain radiating down her thoracic spine into
her lower legs. My prognosis for recovery from her chronic pain remains
guarded.

[79]    Dr. Liu’s recommendations
for treatment made prior to the November 7, 2008 motor vehicle accident
remained unchanged.

[80]    Dr. Liu’s clinical
records, which were put to Mrs. Frangolias during the trial, show that
during examination, on November 13, 2008, Dr. Liu found decreased range of
motion to the cervical and lumbar spine “in all spheres”, as well as “spasm of
bilateral trapezius muscles” and “tenderness throughout neck and shoulders”
with “[n]euro normal”. Dr. Liu’s records dated November 18, some five days
later, do not contain the findings on examination, and instead only contain Mrs. Frangolias’
ongoing complaints of pain.

[81]    While I accept the submission
made on behalf of the defendants that the November 7, 2008 MVA aggravated Mrs. Frangolias’
pre-existing symptoms caused by the December MVAs, I find that the defendants
have only proven the aggravation to have been of minor effect and I find that
the defendants have only proven that Mrs. Frangolias suffered muscle spasm
and limited range of motion for a period of some 6 to 10 days following the
November accident. In addition, the defendants have not proven that the
November 7, 2008 motor vehicle accident caused any new injury to Mrs. Frangolias.

[82]    The medical evidence also
discloses that at some time between 2003 and March 2006, two points in time
when bone density tests were carried out on Mrs. Frangolias, Mrs. Frangolias
suffered a “severe wedge collapse” or fracture of her T-9 thoracic vertebrae.
Dr. Liu cannot say if the December MVAs caused that fracture or whether it
was the result of Ms. Frangolias’ pre-existing osteoporosis. In addition,
although Dr. Lui cannot provide an opinion as to whether that fracture is
linked to Ms. Frangolias’ ongoing complaints, she did state that in her
experience, pain from “compression fractures” (which is what Mrs. Frangolias
suffered) tends to be localized and specific to the area of the fracture.
Dr. Liu reported in her medical-legal report of April 2, 2007  that Mrs. Frangolias
had localized pain in the fracture site as well as “throughout her entire body”
as well as her head, leaving open the possibility of a link between the two. She
deferred the issue to a pain/rehabilitation specialist to answer the question.

[83]    Dr. Travlos
is of the opinion that the fractures are “in part related to the” December MVAs.
In his medical-legal report of August 2, 2007, he opined:

Ms. Frangiolias was noted to have
multiple fractures on a bone densitometry scan taken after the accident on
March 9, 2006. An earlier bone scan of March 24, 2003, did not show such
compression fractures, but that scan did show significant osteoporosis with a
high risk of fracture. It is difficult to know when the fractures occurred and
with her high risk of fractures, it would have been expected that a sudden
deceleration movements such as that of her accidents would have been quite
likely to have caused at least some fractures. It is obviously possible that in
the absence of the accident that Ms. Frangiolias would have had fractures
in any event. If one accepts that she could have had fractures in the absence
of trauma, then one would also have to accept that in an accident with sudden
deceleration of the vertebral spine, she could easily have developed vertebral
fractures. It is, therefore, my opinion that these fractures are in part
related to the accident, but I could not say to what extent or that these
fractures were not present or in part present prior to the accident. Indeed, the
fractures may even have arisen after the accident. The bottom line, however, is
that she was at significant risk of fracture, she did sustain deceleration
injuries which is the mechanism of such vetebral fracture, and it is probable
that the accidents contributed to the fractures.

From a clinical
standpoint, I do not think that Ms. Frangiolias’ fractures seen on the
bone densitometry scans are still clinically symptomatic. These types of
osteoporotic fractures do heal and the pain settles once the fractures hve
healed or until the next fracture occurs. Based on Ms. Frangiolias’
assessment today and when I last saw her, the pains are not specifically
localized to the bony structures of the mid back and the majority of the
symptoms are much more diffuse. She remains at risk of further fractures and
progression of her kyphosis (forward bend of the mid back) as time evolves. She
must, therefore, stay on the medication that she is on for osteoporosis for the
indefinite future.

[84]    Finally, it is possible that some
of Mrs. Frangolias’ complaints of dizziness are related to tinnitus. Although
she denied ever having been told of such a diagnosis, my impression in hearing
her answers to questions put to her in cross examination is that her lack of
knowledge arises from her lack of proficiency in English. In his medical-legal
report of August 2, 2007, Dr. Travlos wrote that he suspected her
dizziness is “possibly due to middle ear pathology”. There was also some other
evidence at trial to suggest the possibility that at least some of Mrs. Frangolias’
complaints of dizziness are due to tinnitus and not related to the December
MVAs.

[85]    The defendants relied upon the
medical-legal report of Dr. Schweigel, which followed his independent
medical examination of Mrs. Frangolias that took place on October 20, 2008.
I have considerable concerns about the reliability of the opinions expressed in
that report. My concerns arise in respect of Dr. Schweigel’s opinions
relating to surveillance videos of Mrs. Frangolias taken on May 12 to 14,
2006, March 14 to April 26, 2008, and May 17 to May 23, 2008, and in respect of
some of the comments contained in his report concerning his findings on
examination.

[86]    The surveillance videos were
marked in evidence and shown to me during the trial. The videos show Mrs. Frangolias
in her front yard, driving to a grocery store, and driving to a medical
appointment. Surveillance of Mrs. Frangolias must have been taken at some
distance away or with a camera of poor quality since with the exception of one
sequence, none of Mrs. Frangolias’ facial features are discernable.

[87]    In
respect of the first DVD containing the videos from May 12 to May 14, 2006, Dr. Schweigel
wrote:

This lady is
seen walking in a very normal fashion. She bends quite easily on repeated
occasions to inspect her flowers on the May 13, 2006 section of this video. She
rotates her neck in a very agile fashion with no obvious discomfort both right
and left.

[88]    I carefully watched the images
on the first DVD. There were a number of occasions where Mrs. Frangolias
appeared to be moving stiffly, moving her head with her body in a stiff manner,
as if they were all one stiff board. There are times when Mrs. Frangolias
bends over to look at the flowers in her front garden, but due to the quality
of the video images, it is impossible to tell whether Mrs. Frangolias was
in discomfort when she did or indeed, at any time. My concern with Dr. Schweigel’s
remarks is for overstatement and more importantly, for the failure to remark on
those images showing Mrs. Frangolias to be moving more slowly or stiffly.

[89]    In
respect of the second and third DVDs, and also with respect to his overall
impression, Dr. Schweigel said:

DVD of March 14, 2008 through to April
26, 2008:

Again, this lady is seen rotating her neck
in a very agile fashion. She is seen flexing her lumbar spine in a very agile
fashion with no obvious discomfort. I would have expected that this lady had
moderate to severe thoracic and/or lumbar spine pain, to have bent her knees to
look at her flowers. This is not visualized in the April 26, 2008 seen 12:21 or
thereabouts when she is looking at her flowers. Again, throughout these videos,
she moves her neck in a very agile fashion.

DVD of May 17, 2008 through to May 23,
2008:

Again, we see this lady walking in a very
agile fashion with no obvious discomfort and moving her neck in a very agile
fashion.

The above three
videos show a lady that has no obvious discomfort in her cervical and/or
thoracic and/or lumbar spine, and she moves in a very agile fashion. These
videos do not correlate with the degree of pain this lady is said to have had
in the cervical, thoracic and lumbar spine at the time of these videos.

[90]    Images from the second DVD does
show Mrs. Frangolias to, at times, walk about more freely. They also show
her sliding two flower planter boxes on the driveway with one arm. There is no
evidence concerning the dimensions or weight of those boxes, or what was in
them at the time. Mrs. Frangolias is also shown coming out of a grocery
store and to have carefully lifted partially filled bags of groceries out of
the grocery cart into her car. The images show that Mrs. Frangolias was
neither agile or moving freely about, and instead, show her to have been
cautious.

[91]    The video images from the third
DVD show Mrs. Frangolias driving to a medical appointment and backing in
and out of a parking spot, and turning her neck in the course of doing so. It
is possible to have a closer look at her face and she does not appear to be in
discomfort.

[92]    In
his medical-legal report, Dr. Schweigel reported his findings on
examination of the cervical spine. He found Mrs. Frangolias to be “diffusely
tender on either side of her neck, posteriorly, into the shoulders bilaterally
and into the midline”. He found that she did not have a full range of motion.
Dr. Schweigel reported that Mrs. Frangolias was able to “rotate 60
degrees right and left, laterally tilt 30 degrees, [and] extend 45 degrees”. It
appears that he regarded limitations in range of motion as of no consequence. After
setting out his findings, Dr. S provided his opinion that “These motions
were normal for her age and considering the arthritis she has in the cervical
spine”.

[93]    Dr. Schweigel did not
discuss the basis of that diagnosis, although it may come from the disc
degeneration to C3 to C7 and joint spurs shown on an x-ray taken on December
12, 2006 and reported on by Dr. Schweigel at p. 6 of his report –
although he does not use the term “arthritis”.

[94]    In the section of his report
dealing with causation, Dr. Schweigel remarked upon the cause of Mrs. Frangolias’
thoracic symptoms as due to arthritis, and in doing so said: “The cause of the
degenerative arthritis of the thoracic spine is an aging process”. No
elaboration was provided.

[95]    Later,
he said with respect to Mrs. Frangolias’ cervical spine, that there may
have been an aggravation of the arthritis to the cervical spine, but then
appeared to have diminished the role of the December MVAs on an asymptomatic
cervical spine by stating that Mrs. Frangolias was predisposed to cervical
pain. At p. 11 of his report, he stated:

Based upon her
testimony that she had no pain in these areas, particularly her neck, she may
have aggravated a pre-existing asymptomatic degenerative arthritic neck to
become symptomatic. She was predisposed to have these problems regardless.

Dr. Schweigel did not remark upon the
nature or effect of that aggravation of the cervical spine caused by the
December MVAs. At one point he opined that the soft tissue injuries from the
December MVAs “would have healed within one to three months”, yet at another
place in his report advised that Mrs. Frangolias “does have emotional
problems and these emotional problems are out of my expertise. Having said
this, emotional problems or depression can prolong and intensify pain”.

[96]    The foregoing excerpts as some
examples of the remarks that cause me to be concerned that some of the opinions
expressed in Dr. Schweigel’s report lack balance and objectivity. I am,
therefore, most concerned about the reliability of the opinions expressed in
the report. In the circumstances, I prefer to rely upon the evidence of Drs.
Liu and Travlos as well as my assessment of Mrs. Frangolias and the
accounts provided by Mr. Frangolias and Effie Ainsley.

Findings
and Assessment of Damages

Non
Pecuniary Damages

[97]    I find that Mrs. Frangolias
continues to suffer debilitating chronic pain symptoms arising from soft tissue
injuries caused by the December MVAs. She suffers headaches, and pain that
begins in her head and extends down through her shoulders and then extends
through her back to her tail bone.

[98]    Mrs. Frangolias’ headaches
and pain caused by the December MVAs have had an adverse effect on her life. I
accept as accurate the limitations on Mrs. Frangolias’ lifestyle described
by Mr. Frangolias and Effie Ainsley. While Mrs. Frangolias is able to
carry out light housekeeping duties and do some minor cooking, she is otherwise
prevented from engaging in active housekeeping, cooking, and gardening.

[99]    While there are no objective
signs of injury at this time such as muscle spasm, Mrs. Frangolias
continues to display tenderness during medical examinations.

[100]   I am not satisfied that Mrs. Frangolias
has proven on a balance of probabilities that the  compression fracture at T-9
was caused by the December MVAs. I accept Dr. Travlos’ opinion that those
MVAs may have contributed to the fracture. Even so, I do not accept that any
pain symptoms arising from that fracture are the cause of Mrs. Frangolias’
current disabilities and complaints.

[101]   I reject the defendants’
submissions that Mrs. Frangolias has failed to provide medical evidence
demonstrating that the December MVAs aggravated Mrs. Frangolias’
pre-existing depression. Dr. Travlos’ opinion, to whom Dr. Liu
deferred, answers the defendants’ argument. I find that Mrs. Frangolias’
pre-existing depression, which was largely but not completely in remission by
December 2004, was aggravated by the December MVAs. Fortunately, that
aggravation has not resulted in a permanent depressive state that is not
treatable. Mrs. Frangolias’ depression is brought on when her pain
symptoms are more intense. The depression is also helped by an increased dose
of Paxil. Mrs. Frangolias’ report to Dr. Liu that her mood was 10 out
of 10 reflects her mental state at that time; with the greatest of respect, the
defendants’ submission ignores Dr. Liu’s subsequent opinion concerning
deterioration in mood and ignores Dr. Travlos’ overall opinion regarding
the interplay between her chronic pain and aggravation of depression.

[102]   The November 7, 2008 motor
vehicle accident aggravated Mrs. Frangolias’ injuries caused by the
December MVAs. I accept Dr. Liu’s opinion that those injuries “worsened
somewhat” by the November 2008 motor vehicle accident, although that accident
did not worsen her pre-existing injuries in any long term or permanent way, nor
did that accident cause any new injuries.

[103]   While the video surveillance
shows Mrs. Frangolias to demonstrate greater mobility by May 2008, some three
and one-half years after the December MVAs, and some five months before the
November 7, 2008 motor vehicle accident, the defendants have not proven that
any such increased mobility shown in those videos reflects an ongoing pattern
of improvement or even if it was, that the recovery in symptoms that Mrs. Frangolias
was making by May 2008 was impaired by the November 7, 2008 motor vehicle
accident. There is no video footage in evidence following May 2008 so there is
no evidence to show that the greater mobility Mrs. Frangolias showed in
May 2008 video footage persisted or was a reflection of a moment in time, or
subsequently improved.

[104]   I also find that Mrs. Frangolias’
pre-existing right knee problems have caused her problems since the December
MVAs, albeit on an intermittent basis with differing degrees of pain intensity.
I am satisfied that her right knee symptoms have interfered with Mrs. Frangolias’
mobility (such as walking up stairs) and her ability to participate in
household activities and gardening, and that this is particularly the case
since April 2008. I have taken that into account in assessing her entitlement
to non-pecuniary damages. I have also taken into account the fact that Mrs. Frangolias’
carpal tunnel syndrome has caused her some difficulty from time to time in
holding and lifting heavy objects, and taken into account that her tinnitus may
be responsible for some of her complaints of dizziness.

[105]   A
plaintiff’s inability to show objective evidence of continuing injury is not a
bar to recovery of damages. In Butler v. Blaylock, 1983 CarswellBC 2006, [1983]
B.C.J. No. 1490, the Court of Appeal said at para. 13:

There are three basic reasons which, in my
view, support the conclusion that the plaintiff continued to suffer pain as of
the date of trial. Firstly, the plaintiff testified that he continued to suffer
pain. His wife corroborated this evidence. The learned trial judge accepted
this evidence but held that there was no objective evidence of continuing
injury. It is not the law that if a plaintiff cannot show objective evidence of
continuing injury that he cannot recover. If the pain suffered by the plaintiff
is real and continuing and resulted from the injuries suffered in the accident,
the Plaintiff is entitled to recover damages. There is no suggestion in this
case that the pain suffered by the plaintiff did not result from the accident. I
would add that a plaintiff is entitled to be compensated for pain, even though
the pain results in part from the plaintiff’s emotional or psychological makeup
and does not result directly from objective symptoms.

[106]   Counsel for the parties cited
various cases in support of their view of the range of recovery for
non-pecuniary damages. I have set out below the ones that I found to be the
most useful in assessing non-pecuniary damages in this case.

[107] Bedwell v. McGill, 2006
BCSC 369, involved a 57-year old elementary school teacher who was injured in a
motor vehicle accident in 2001 and a subsequent trip and fall. Prior to the
accidents, the plaintiff’s health was generally good although she suffered
emotional distress following her husband’s death that required her to receive
counselling and psychiatric help. She eventually began to feel better with
treatment. Warren J. found the plaintiff to have suffered mild soft tissue
injuries from the motor vehicle accident which were exacerbated by the trip and
fall (where she suffered a fractured left ankle, injuries to both knees and to
her neck and upper back). The injuries also caused the plaintiff to suffer a
recurrence of her earlier depression. He also found the injuries to have been
largely resolved by the time of trial in 2006, although there were some
diminished symptoms which could be treated conservatively with physiotherapy,
analgesics, and an appropriate fitness schedule. The award was $85,000.

[108]   In Foran v. Nguyen, 2006
BCSC 605, a 31-year old plaintiff sustained multiple soft tissue injuries to
her cervical spine from an accident that occurred in February 2006. The
plaintiff’s condition improved approximately 6 to 12 months following the motor
vehicle accident. Although some of her symptoms had resolved by the time of
trial, the plaintiff continued to suffer from chronic headaches, chronic neck
pain, and upper back pain on the right side. The plaintiff’s sleep also
continued to be disrupted. She suffered emotional problems from her injuries,
which she said caused her to be indecisive, more easily frustrated, irritable,
and emotional. She was awarded $90,000.

[109]   In Eccleston v. Dresen,
2009 BCSC  332, the plaintiff suffered a whiplash-type injury to her upper
spine in a motor vehicle collision that occurred on August  3, 2002. Not
long after, she began to suffer significant pain both in the area of her soft
tissue injury and elsewhere in her body. She was 43 years old at the time of
the motor vehicle accident. Various forms of treatment modalities were tried,
such as physiotherapy, trigger point injections, and acupuncture, without success.
As her pain persisted, the plaintiff grew depressed and was prescribed
anti-depressants. She also attended a pain clinic without any appreciable
benefits.

[110]   In
assessing non-pecuniary damages, Barrow J. applied the decision of McEachern
C.J.S.C. in Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), at para
65:

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

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

[111]   Applying
Price to the facts of his case, Barrow J. went on to say at paras. 66
to 69:

[66]      The defendant argues that this is
precisely the kind of case that McEachern C.J.S.C. had in mind when he made
these remarks, and she argues that when that kind of close examination of the
evidence is undertaken, the plaintiff’s evidence does not have the convincing
quality necessary to warrant compensation, or compensation to the extent that
she seeks. I agree that this is the sort of case in which the evidence should
be viewed with a sceptical eye, and that is the lens through which I have
viewed it. I am, however, convinced that the pain the plaintiff feels is real
and that she is neither malingering nor exaggerating. If I were compelled to
decide this case solely on the basis of the plaintiff’s self-report unsupported
by the collateral evidence, I may not reach that conclusion; it is the
convincing force of the collateral evidence that compels me to that conclusion.

[67]      I will deal with the specific
items to which the defendant points in support of her position that the
plaintiff is not credible and then turn to the issue of whether an adverse
inference should be drawn against the plaintiff because of her failure to call
her treating general practitioners. Finally, I will deal with the collateral
evidence.

[68]      In terms of credibility, the
defendant points to several matters. First, the defendant argues that the
plaintiff’s son described her as “pain focused” and essentially obsessed with
her pain. Although the plaintiff’s son did not use that specific phrase, that
is the gist of the evidence of many of the collateral witnesses. I do not
consider that a reason for disbelieving the plaintiff; in fact, it is an
accurate description of her in the years since the accident. In a related vein,
the defendant argues that the fact that the plaintiff has minute recall of the
details of her pain and yet has much poorer recall of other matters is a basis
to find her credibility wanting. I am not persuaded that it is; rather, I think
it is a reflection of her pain-focused outlook.

[69]      Next,
the defendant points to the fact that the plaintiff stopped taking all
medication shortly before the trial, and yet she reported no change in her
level of pain. If she were intent on advancing her case by exaggerating her
symptoms, one would have thought that she would report an increase in her pain.
She did not. This circumstance is, in my judgment, consistent with the origin
of the pain she suffers. That is to say, it is not organic or pathological in
origin and thus pain medication has had little or no effect on it. Thus, rather
than being a basis for disbelieving the plaintiff, I find this circumstance to
be consistent with her presentation in general.

[112]   Ms. Eccleston was found to
have suffered a grade two or moderate soft tissue injury to her upper back and
neck in the accident. The pain the plaintiff suffers is more extreme, however,
since it involved more areas of her body, and has lasted, as Barrow J. said at para. 84,
“well beyond that which one would expect from her physical injuries”. She
suffers from chronic pain (said to be for approximately six years by the time
of trial) and is depressed as a result. Her condition was viewed to be
permanent although it was likely to be moderate if the plaintiff underwent
intensive psychotherapy for a year. Non-pecuniary damages were assessed at
$120,000 less 10% for the contingency for the “measurable risk of” the plaintiff’s
predisposition to depression.

[113]   In Murphy v. Jagerhofer,
2009 BCSC 335, a 36-year old plaintiff suffered soft tissue injuries to his
neck and back with accompanying headaches. The trial judge found them to be
moderate to severe. The plaintiff developed tinnitus, dizziness, jaw pain, as
well as psychological symptoms including anxiety, depression, and
post-traumatic stress disorder which continued in various degrees to the time
of trial. His pain also caused sleeplessness. The plaintiff also developed
a phobia of motor vehicle travel, and related repressive symptoms. The award
was $100,000.

[114]   In Viner-Smith v. Kiing,
2009 BCSC 1387, R. Holmes J. awarded $80,000 to a 40-year old plaintiff who
suffers from “the complex interaction of a combination of chronic pain, major
depressive disorder, and post traumatic stress disorder”. The chronic pain and post
traumatic stress disorder were caused by the accident; the depressive disorder,
present before the accident , was exacerbated. The plaintiff suffered symptoms
of soft tissue injuries to his back, neck, shoulders and right knee in the
accident. While the pain he suffered was of varying intensity, from minor to
severe, his pain moderated in degree over several months and then left him with
some continuing chronic pain.

[115]   According to R. Holmes J., at para. 52,
the “combination of conditions can have the effect that a worsening of the
symptoms of any one may cause another to worsen”. In assessing non-pecuniary
damages, R. Holmes J. was of the opinion, at para. 64, that the
“plaintiff’s pre-accident impairment made what remained of his enjoyment of
life the more precious to him”. He assessed damages at $80,000.

[116]   In Warren-Skuggedal
v. Eddy, 2009 BCSC 1085, the plaintiff suffered soft tissue injuries to her
neck, low and mid back, and legs from a motor vehicle accident that occurred in
April 2005. The plaintiff also suffered from pre-existing significant medical
problems including heart problems, depression following her husband’s death,
panic attacks and anxiety. According to the plaintiff, the injuries she
sustained in the accident had a profound effect on her life. She complained
that she was, some four years after the accident, in almost constant pain,
suffered problems with her short-term memory, and suffered constant neck and
left shoulder girdle pain. She also suffered from persistent low back and hip
pain, worse so on the right side. In considering the quantum of damages
payable, Sewell J. noted at para. 18 that:

In this case the
symptoms and consequences attributed to the accident cannot be explained by
objective medical evidence. They appear to be disproportionate to the diagnosis
of the injuries that Ms. Warren-Skuggedal did suffer in the accident. In
addition she has had a long history of depressive symptoms and anxiety which
predate the accident.

[117]   He concluded that the plaintiff
did suffer soft tissue injuries in the accident, and that those injuries
aggravated her pre-existing anxiety and depression. Non-pecuniary damages were
assessed at $60,000.

[118]   In La France v. Natt,
2009 BCSC 1147, Truscott J. assessed damages to a 54-year old plaintiff who
suffered soft tissue injuries and chronic pain from three separate motor
vehicle accidents that occurred between March 1, 2002 and May 1, 2003. The
plaintiff suffered pain in her neck, right shoulder, right hip, and lower back,
as well as headaches. She suffered from tinnitus that was unrelated to the
accidents. On a medical examination conducted in 2005, the plaintiff presented
with full but cautious range of motion in her neck. She also suffered from an
anxiety disorder although Truscott J. found that not all of her anxiety attacks
and symptoms were caused by the accidents. Non-pecuniary damages were assessed
at $80,000, a figure proposed by counsel for the plaintiff, less a 25%
reduction to allow for the attacks unrelated to the motor vehicle accidents. The
net award was $60,000.

[119]   Counsel for the defendants
submits that the high end of the range of non-pecuniary damages in Mrs. Frangolias’
case is $60,000, which was the amount awarded in Warren-Skuggadal. I
respectfully disagree. The nature and duration of the pain in Mrs. Frangolias’
case, is, in my opinion, of greater intensity and duration. Further, unlike Warren-Skuggadal,
Mrs. Frangolias’ pre-existing depression was stabilized prior to the
December MVAs, and the medical evidence from Dr. Travlos shows that the
December MVAs exacerbated it.

[120]   Having regard to the effects of
the constant pain on Mrs. Frangolias’ lifestyle, the fact that her
pre-existing depression was aggravated to some extent, her pre-existing right
knee problems which have caused problems for her to a greater degree since
2008, the involvement of tinnitus in her complaints of dizziness, and the
unrelenting aspect of her chronic pain, I assess non-pecuniary damages in the
amount of $80,000.

Loss of
Housekeeping Capacity

[121]   In Kroeker v. Jansen
(1995), 123 D.L.R. (4th) 652 (C.A.), 4 B.C.L.R. (3d) 178, the Court of Appeal
recognized that “housekeeping and other spousal services have economic value
for which a claim by an injured party will lie even where those services are
replaced gratuitously from within the family”: para. 9.

[122]   In McTavish
v. MacGillvray, 2000 BCCA 164, the Court of Appeal said at para. 63
that it is “well established that a plaintiff whose ability to perform
housekeeping services is diminished in part or in whole ought to be compensated
for that loss. It is equally well established that the loss of housekeeping
capacity is the plaintiff’s and not that of her family”. The Court of Appeal
held that an appropriate method of compensating for loss of housekeeping
capacity is on a replacement cost basis, even though the services were
performed voluntarily by other family members. Huddart J.A. welcomed that
approach to valuation since it:

…has the
advantage of encouraging family benevolence, without providing a windfall to
the wrongdoer. It discourages the hiring of less satisfactory and perhaps more
expensive substitute services. It allows a court to determine what services are
reasonably necessary by reference to what services family members were prepared
to provide.

[123]   Another method of compensating
for loss of housekeeping capacity is to factor it in the assessment of
non-pecuniary damages. This is done where there is sufficient evidence with
respect to replacement cost. That was the approach taken by Joyce J. in Eaton
v. Regan, 2005 BCSC 3. In that case, the court had only the most general
evidence to assess the claim. As I read the reasons for judgment, no evidence
of replacement cost was tendered.

[124]   In Deo v. Deo, 2005 BCSC
1788, Rice J. was able to assess replacement cost even where there was not
enough evidence to “establish with certainty” the amount of housekeeping help
was required for the plaintiff. In considering the evidence, he determined, at para. 15,
that a “fair estimate would be two to three hours each week, for an average of
ten hours per month at fifteen dollars per hour”. Mindful that other cases had
established a replacement cost of $10 per hour, Rice J. said that he was not
comfortable with that figure, and thought $15 per hour to be reasonable. He
then reduced the amount recoverable by half after five years to reflect
contingencies.

[125]   In Balneaves v. DeGroot,
1999 CarswellBC 1459, [1999] B.C.J. No. 1527, 89 A.C.W.S. (3d) 709,
Josephson J. was able to assess loss of housekeeping where evidence of cost of
replacement was not led. He found that the plaintiff’s husband had performed
nearly 1,000 hours of extra household and yard duties in the past due to the
plaintiff’s injuries. Having regard for the caution about excessive awards
expressed by Gibbs J.A. in Kroeker, Josephson J. valued the award based
on minimum wage ($9 per hour) to award $9,000 for past and future household
services performed by the plaintiff’s husband.

[126]   In my opinion, there is
sufficient evidence of replacement cost from Effie Ainsley for me to assess
damages for loss of housekeeping capacity. I agree with the submissions of
counsel for Mrs. Frangolias that damages should be assessed on a
conservative basis owing to Mrs. Frangolias’ pre-existing medical and
physical issues. I am particularly mindful of her long-standing right knee
injury. Absent that injury, I would assess Mrs. Frangolias’ need for
housekeeping arising from the injuries she sustained in the December MVAs on
the basis of $16 per hour at eight hours per week.  Using that hourly rate,
which is the discounted rate paid by Effie Ainsley, allows for an average of
hourly rates paid for housekeeping services since December 2004.  I also think
it is appropriate to award Mrs. Frangolias eight hours per week until
April 1, 2008 when her right knee problem became particularly painful, causing
reduced mobility, and from that time forward reduce the award to four hours per
week. Therefore, a fair and appropriate award to the date of trial is $16 per
hour at eight hours per week, from the second motor vehicle accident that
occurred on December 24, 2004 (since it is the date on which Mrs. Frangolias’
symptoms became significantly worse) to April 1, 2008, and then from that date
to the date of trial at four hours per week. The first segment totals 170 weeks
and amounts to $21,760. The second segment totals 105 weeks and amounts to $6,720.
The total of both is $28,480.

[127]   Although counsel for Mrs. Frangolias
submits that from there, the award should take into account housekeeping until
age 75, I am convinced that Mrs. Frangolias’ right knee problems would
have become worse with time. She is currently age 68. In my opinion, the award
should not be calculated beyond age 70. Therefore, $16 per hour at four hours
per week for the next two years (104 weeks) is approximately $6,656. Given the
prospect of increasing difficulty with her right knee, I prefer to factor a
lump sum amount of $5,000 for this aspect of lost housekeeping capacity, which
also takes into account a small discount for present value. Therefore, the
total award for loss of housekeeping capacity is $33,480.

Special
Damages

[128]   Special damages have been
agreed upon in the amount of $2,251.61.

Cost of
Future Care

[129]   I accept the submissions of
counsel for Mrs. Frangolias that she will require ongoing medication for
pain and will incur costs from time to time for exercise programs. In the
absence of specific evidence as to cost of future care, I think that a lump sum
is appropriate. I award $1,500.

In Trust
Claim

[130]   An award for an “in trust”
claim is made for services provided by a family member that are “over and above
what would be expected from the family relationship”: Bystedt (Guardian ad
litem of) v. Hay, 2001 BCSC 1735, at para. 180. In Bystedt,
Smith J. summarized the six factors to be considered in an “in trust” claim to
be at para. 180:

(a)      the services provided must replace services necessary for
the care of the plaintiff as a result of the plaintiff’s injuries;

(b)      if the services are rendered by a family member, they must
be over and above what would be expected from the family relationship for an
uninjured plaintiff;

(c)      the maximum value of such services is the cost of obtaining
the services outside the family;

(d)      where the opportunity cost to the care-giving family member
is lower than the cost of obtaining the services independently, the court will
award the lower amount;

(e)      the amount should reflect the true and reasonable value of
the services taking into account the time, quality, and nature of those
services and take into account the wage of a substitute caregiver; and

(f)       the family members providing services need not forego
other income and there need not be payment to them for services rendered.

[131]   In Dykeman v. Porohowski,
2010 BCCA 36, Newbury J.A. ruled out the notion of a threshold of
“grievousness” in terms of the injuries required upon which to base a claim. At
para. 29, she said: “A plaintiff who has a broken arm, for example –
presumably not a ‘grievous injury’ – and who is obliged to seek assistance in
performing various household tasks should not be foreclosed from recovery on
this basis”. According to Newbury J.A., the services in issue must be carefully
scrutinized so that only those services that go “above and beyond” as opposed
to those that comprise the “usual give and take” are compensated.

[132]   I am satisfied that Mr. Frangolias
provided housekeeping, cooking, and gardening services that were otherwise
performed by Mrs. Frangolias prior to the December MVAs. There is no
evidence that he performed housekeeping duties or the gardening (apart from
mowing the lawn) prior to those accidents. While he may have been involved in
some cooking prior to the December MVAs, and would be expected to continue,
since he used to be a cook, the evidence shows that Mrs. Frangolias took
great pride in organizing and cooking large meals for family and friends on a
regular basis. She did nearly all of the cooking for the family. Since the
evidence does not provide me with a basis to determine the amount of hours
spent by Mr. Frangolias since the December MVAs carrying out these tasks,
it is my view that only a nominal lump sum award can be made. It was submitted
on behalf of Mrs. Frangolias that a lump sum of $5,000 was appropriate,
and further, that if I determined that it included housekeeping services, that
I should reduce the in-trust award to account for those services.

[133]   I accept that the sum of $5,000
is more than reasonable in the circumstances of this case. In my opinion, the
in-trust claim should be broken down into thirds. While it might be said that
the housekeeping and constant services are provided on full year basis and thus
command a greater percentage, looking after a flower and vegetable garden will
consume substantial amounts of time between spring and the fall. As well, Mr. and
Mrs. Frangolias are invited to their daughter’s home and to homes of
friends for meals, which relieves Mr. Frangolias from the need to cook
dinner every day of the week. Accordingly, I have reduced the lump sum by one-third
to account for household services, putting the in-trust award at $3,333.33.

Failure
to Mitigate

[134]   A plaintiff in a personal
injury action has a positive duty to mitigate his or her loss. According to Graham
v. Rogers, 2001 BCCA 432, at para. 35, where a defendant takes the
position that a plaintiff “could have reasonably avoided some part of the loss,
the defendant bears the onus of proof on that issue”.

[135]   The defendants argue that Mrs. Frangolias
failed to mitigate her damages by failing to exercise and by failing to accept
a referral to a psychologist.

[136]   In terms of exercise, the defendants
placed considerable emphasis on Mrs. Frangolias’ failure to follow the
prescription by Dr. Travlos. With respect, that submission overlooks Dr. Travlos’
advice that Mrs. Frangolias should exercise within the limits of her pain,
overlooks the fact that her failure to heed his advice resulted in a delay of
starting an exercise program by approximately eight months, and overlooks that
fact that although Mrs. Frangolias is currently engaged in an exercise
program, exercise provides only short term pain relief. Moreover, the
defendants have failed to meet the onus to demonstrate that had she not delayed
in exercise, or participated in an exercise program (such as the Karp program)
on a long term basis, that some or all of her injuries would have been avoided.

[137]   The situation is, however,
different in respect of Mrs. Frangolias’ failure to accept Dr. Liu’s
offer to refer her to a psychiatrist. The evidence shows that Mrs. Frangolias’
ongoing consultations with Dr. Kontaxopolous between 2002 to 2005 assisted
recovery with Ms. Frangolias’ depression. Even though Mrs. Frangolias
continues to take Paxil, and at a larger dosage, that does not, in my view,
answer the defendants’ submissions that she failed to mitigate her loss.  I say
that because Mrs. Frangolias’ ongoing consultations with Dr. Kontaxopolous
suggest that his treatment was not limited to simply providing prescriptions
for anti-depressants and the evidence is clear that his intervention assisted
her. I find that Mrs. Frangolias failed to mitigate the aggravation of her
depression, caused by the December MVAs, when she declined to accept Dr. Liu’s
offer of a referral. There is no evidence, however, showing the beneficial
effects that a consultation with a psychiatrist would have had on the aggravation
of Mrs. Frangolias’ depression; in the circumstances, absent any further
evidence on the point, I have concluded that her award for non-pecuniary
damages should be reduced by the nominal amount of 10%. No reduction should be
made for the loss of housekeeping capacity award since any reduction or
elimination of Mrs. Frangolias’ depression would not have affected her need
for housekeeping services.

Summary

[138]   To summarize, Mrs. Frangolias
is awarded $80,000 for non-pecuniary damages less 10% on account of her failure
to mitigate, for a total of $72,000.

[139]   The loss of housekeeping
capacity award is $33,480.

[140]   Special damages are agreed at
$2,251.61, and the cost of future care award is $1,500.

[141]   The award for the in-trust
claim is $3,333.33.

[142]   The total award is $112,564.94.

[143]   Subject
to submissions of counsel in respect of matters for which I am unaware, costs
are awarded at Scale B to Mrs. Frangolias.

“P. Walker J.”

__________________________________

The Honourable Mr. Justice Paul Walker