IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100622

Docket: M108143

Registry:
New Westminster

Between:

Gurpreet Kaur
Sarowa

Plaintiff

And

Balwinder Gill

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
On November 24, 2006, Ms. Sarowa’s vehicle collided with a vehicle
driven by the defendant, Mr. Gill.  Mr. Gill admits that his negligence was the
sole cause of the accident.

[2]            
Ms. Sarowa is seeking general damages, damages for past loss of income,
and special damages.  The parties disagree about the severity and duration of
injuries resulting from the accident, and about the effect of the injuries on
the plaintiff’s capacity to work.

FACTS

[3]            
The Plaintiff was 26 years old at time of trial.  She grew up in the Lower
Mainland.  Following graduation from high school in June 2000, she planned to
become a flight attendant.  She took a Travel and Airline training program at
the Tourism Travel Institute, graduating in April 2001 but was unable to find
work with an airline.  In December 2002, she began working as a reservation
sales agent with a travel wholesaler.

[4]            
On July 11, 2004, Ms. Sarowa entered into an arranged marriage, which
has not always been happy.  After the wedding, the couple lived in Abbotsford
close to Mr. Sarowa’s family.  Ms. Sarowa’s preference was to live in Burnaby,
closer to her family and friends.  Problems in the marriage caused Ms. Sarowa
to suffer from depression at times, and in August 2005 the couple separated for
a time.  In October 2005, Ms. Sarowa told her doctor the stresses in her
personal life were affecting her ability to do her job and that she wanted to
take two months off work.  She resigned from the travel company and was
unemployed until February 2006 when she was hired by a debt collection agency.

[5]            
In early 2006, Ms. Sarowa’s marriage deteriorated to the point that she
and her husband again separated, and Ms. Sarowa commenced family law
proceedings.  Ms. Sarowa left her job with the debt collection agency and on
May 5, 2006 took a job with the British Columbia Corps of Commissionaires (“the
Corps”).

[6]            
The Corps had a contract to do pre-board security screening of
passengers and carry-on baggage at the Abbotsford Airport.  Ms. Sarowa was
assigned to work there.  She was happy about this job because it was close to
her home; she liked the hours of work; and the job was related to tourism.  Ms.
Sarowa worked four days, followed by two days off.  A day was considered to be eight
hours.  An employee had to work five days, or 40 hours, before being eligible
to be paid overtime.

[7]            
The employment contract provided for a 90-day probationary period, but
before the probationary period begins, employees are required to complete a
course described as the “F2” course, and a second evaluation called the “OJT”. 
Although Ms. Sarowa began full-time employment on May 5, 2006, her 90-day
probationary period did not actually start until August 2006.

[8]            
Ms. Sarowa’s job in pre-board security screening at the Abbotsford
airport involved rotating through three “stations”.  At the first station, the
employee meets and greets passengers and checks boarding passes.  At the second
station, the employee operates an x-ray screening device through which passengers’
bags are passed.  The employee looking at the screen is expected to detect
potentially dangerous or prohibited items in luggage.  The third station
involves physically searching or passing a metal-detecting wand over – a
procedure called “wanding” – passengers; manually searching the contents of
purses and bags; and passing a chemical-detecting device over electronic
equipment.

[9]            
Ms. Sarowa testified that until January 2007, the pre-board security
screening work was not demanding as there were only three or four passenger
flights a day flying out of the Abbotsford airport.  It took approximately 60
to 75 minutes to carry out the pre-board screening for each flight, so there
were long breaks during which employees could listen to music, or do errands. 
Ms. Sarowa testified that on a typical eight-hour shift she would actually be
doing work for only five or six hours.  If a flight departure was delayed,
employees might be required to stay beyond the usual end of the shift.

[10]        
Ms. Sarowa testified that she enjoyed her work and thought she was doing
well, but she did have some shortcomings brought to her attention by her
immediate supervisor.  Ms. Sarowa’s “Initial 1 – 30-days” performance review
was completed by her supervisor and provided to Ms. Sarowa on September 26,
2006.  This review indicated that she was generally on time for her shifts; was
“well turned out” and had good working knowledge of the functions to be
performed.  However, it was also noted that she required improvement in her
“wanding”; in maintaining control of something called the “WTMD”; and needed to
be more consistent with random wanding and asking for boarding passes.  She was
recommended to continue to the next 30-day period, but told she must put in
extra effort in the areas identified for improvement.

[11]        
Ms. Sarowa received her second 30-day evaluation on October 26, 2006. 
This review indicated that her wanding had improved but was still
inconsistent.  She was reminded that she needed to arrive 15 minutes before the
start of her shift and be ready to work; and that she had a tendency to talk or
make comments when given instructions.  She was recommended to continue but
improvement was required on her weaker points.

[12]        
In October 2006, Ms. Sarowa and her husband reconciled.   They separated
again in 2007, but were not divorced at time of trial.  Mr. Sarowa did not
testify at trial.

THE MOTOR VEHICLE ACCIDENT

[13]        
The motor vehicle accident that led to this lawsuit happened on November
26, 2006.  On that day, Ms. Sarowa was late leaving work because of a
late-departing flight.  Snow had fallen and was still falling.  The roads were
icy.  She was on route to her home and northbound on Townline Road approaching
the intersection with Ridgeview Drive.  At this point, Townline Road slopes up.

[14]        
The defendant, Mr. Gill, was southbound, coming down the hill.  His six-year-old
son was a rear seat passenger in his vehicle.  As the two vehicles approached
each other, Mr. Gill’s vehicle began to slip and fishtail on the icy road.  He
was travelling slowly because of the bad weather and icy roads, and when his
vehicle began to slide, he applied his brakes.

[15]        
Ms. Sarowa testified she saw Mr. Gill’s vehicle coming towards her.  She
took her foot off the accelerator and steered to her right, but Mr. Gill’s
vehicle slid over the centre line and the front bumper of Mr. Gill’s vehicle
struck the rear left of Ms. Sarowa’s vehicle, just behind the passenger
side rear wheel.  Photographs of Ms. Sarowa’s vehicle indicate significant
damage to the left rear quarter panel.

[16]        
Ms. Sarowa testified that her car spun in circles and ended up striking
the curb on her side of the road.  She said that she wasn’t sure how many times
her vehicle spun around but that it seemed like more than once.

[17]        
Mr. Gill disputed Ms. Sarowa’s testimony about her car spinning in
circles.  He testified that he was driving very slowly because of the road
conditions, and that he had slowed his speed even more by braking prior to
impact.  He testified he pushed Ms. Sarowa’s vehicle only a couple of feet and
that the two vehicles were still touching when both came to rest.  He said that
Ms. Sarowa’s vehicle did not strike the curb, although both vehicles came to
rest in Ms. Sarowa’s lane of travel.  Mr. Gill said that he did not feel a big
impact when the collision occurred.

[18]        
Ms. Sarowa’s Ford Focus was a 2002 model; Mr. Gill was driving a 2003
Nissan Pathfinder.  Given that both vehicles were recent models, I conclude
they were likely equipped with air bags, but the impact of the collision did
not cause the airbags to deploy.

[19]        
Mr. Gill immediately got out of his vehicle and Ms. Sarowa got out of
her car 10 or 15 seconds later, and the two of them stood on the sidewalk and
talked.  The two drivers exchanged insurance information.  Ms. Sarowa
telephoned her husband on her cell phone and she asked Mr. Gill to wait with
her until her husband walked from their home.  Mr. Gill testified that they
were at the accident scene about 15 minutes.  When Ms. Sarowa’s husband
arrived, Mr. Gill left.

[20]        
Ms. Sarowa’s vehicle was driveable.  Her husband drove the vehicle to
their home, with Ms. Sarowa as a passenger.  Ms. Sarowa testified that when she
got home she was shaking, felt dizzy and was in pain.  Her husband gave her
some Tylenol and a heating pad and she went to bed and slept.  The next day she
had pain in her neck and back, but was able to go to work.  She drove her
damaged vehicle to work and parked in the staff parking area.  In the week
after the accident, Ms. Sarowa worked her usual 40 hours at the airport, and
also put in five and a half hours of overtime.

[21]        
Ms. Sarowa did not tell her supervisors about her motor vehicle accident
until several months after it happened.   She testified that some of her
co-workers saw the damage to her vehicle and asked her how the accident had happened,
and that she told them she had aches and pains.  She said for the first few
weeks after the accident, some co-workers helped her to lift larger bags.

[22]        
Ms. Sarowa completed her Canadian Air Transport Safety Agency Foundation
Training, including training on x-ray recognition, on November 30, 2006.

[23]        
Ms. Sarowa did not have a family doctor in Abbotsford and usually went
to a walk-in clinic when she needed medical attention.  On December 1, 2006 she
went to see Dr. Bawa Randhawa.  Later she also saw Dr. Kavita Randhawa, who
was, she testified, Dr. Bawa Randhawa’s daughter.  Plaintiff’s counsel advised
the court that neither of these doctors was still practising in the Abbotsford
area at time of trial, and neither was called as a witness.

[24]        
Ms. Sarowa testified that for the first month after the accident, she
had pain in her upper and lower back, and also experienced headaches.  She
reported the back pain to her doctor, but made no mention of headache.  The
first report of headache in Dr. Randhawa’s records appears on February 22,
2007.  Ms. Sarowa said her discomfort actually seemed to increase during the
first month after the accident, but she wanted to keep her job, so kept working
and took medication for the pain.

[25]        
On December 22, 2006, Dr. Randhawa referred the plaintiff to
physiotherapy for low back strain.  Ms. Sarowa went to CBI Physiotherapy and
Rehabilitation Centre on January 5, 2007.  Ms. Sarowa’s physiotherapist,
Jeanette LeBlanc, testified at trial.  No notice was given that Ms. LeBlanc would
provide opinion evidence, however, and no summary of her evidence was served on
the defendant.  Accordingly, she did not testify as an expert opinion witness.

[26]        
According to Ms. LeBlanc, Ms. Sarowa’s primary complaint when she was
assessed on January 5, 2007 was intermittent low back pain aggravated by
sitting and bending forward.  Ms. Sarowa reported she was also having
intermittent pain in the muscles leading from her neck to her shoulders.  She
did not tell Ms. LeBlanc that she was having headaches.  She denied feeling
faint or having spells of severe dizziness, and reported that she was not
taking any medication.  Ms. LeBlanc noted increased muscle tone in the muscles
on both sides of the mid-lumbar spine and decreased active range of motion in
the same area.

[27]        
Ms. LeBlanc testified that she taught Ms. Sarowa exercises designed to
strengthen core muscles and strengthening and stretching exercises for the neck
and back; and also did manual therapy during visits.  Ms. LeBlanc worked on all
areas of Ms. Sarowa’s back – lumbar, thoracic and cervical.  Ms. LeBlanc
recommended that Ms. Sarowa exercise at home and continue to be active within
her limitations.

[28]        
At the first appointment, Ms. LeBlanc gave Ms. Sarowa a letter for her
employer recommending that Ms. Sarowa limit repetitive forward bending, heavy
lifting and prolonged sitting, and that she be reassessed in one week.  Ms.
Sarowa testified that she gave the note to one of her supervisors, Denis
LePage, but that no change was made in her duties.  If she did deliver Ms.
LeBlanc’s note to Mr. LePage, it was never placed in Ms. Sarowa’s
personnel file.  Randy Andreachuk, the manager of enforcement services for the
Corps, testified that he had not seen the note written by Ms. LeBlanc prior to
trial.    Shiva Lotfi, the Manager of Human Resources for the Corps also
testified that she had no knowledge of Ms. Sarowa having been injured in a
motor vehicle accident while Ms. Sarowa was employed by the Corps.  She
testified that the Corps has a policy of accommodating injured employees but
that she was unaware of any request for accommodation having been made by Ms.
Sarowa.

[29]        
On January 12, 2007, Ms. Sarowa received her final, 90-day, performance
review.  This report is quoted below in its entirety:

Good Points

Gurpreet has improved overall;
she is more constant in arriving 15 minutes prior to the shift start.  She also
improved her wanding skills.

Areas Requiring Improvement

On the EDT, she has the
tendency to touch the item instead of brushing it.  Her recognition of common
items on the x-ray needs improvement.  She is trying hard to make friends with
team, she should be herself and be continuously busy on the line.

Gurpreet
has successfully completed her site performance; she is recommended for full
time as a member of site 104.  Experience and time should take care of the
weaker points.

[30]        
Ms. Sarowa testified that in January 2007, a training machine was
installed at the Abbotsford Airport that allowed employees to practice x-ray
screening of bags through a computer simulation.  Test images appeared
on-screen; the employee identified dangerous items and the computer provided
feedback about how many errors were made − either benign items wrongly
identified as of concern, or dangerous items the trainee had failed to detect.

[31]        
Ms. Sarowa testified that once the simulator was in place, employees
were expected to practise when not engaged in actually screening passengers. 
Employees took turns practising on the simulator.  Ms. Sarowa said a training
session might last 30 or 40 minutes, which was more than twice as long as an
employee would usually spend at the x-ray station when doing actual bag
screening.

[32]        
Mr. Andreachuk testified that in January he began receiving reports that
Ms. Sarowa was having problems meeting the expectations for her job. 
There were several reports of Ms. Sarowa’s failure to detect a potentially
dangerous object when screening carry-on bags, or on the screening simulator. 
Ms. Sarowa did not tell her employer that the problems she was having were the
result of any medical concerns.  She was provided with extra training.

[33]        
Ms. Sarowa testified that she knew she was making a lot of mistakes at
work in January and February.  She missed items during the simulator testing,
including knives and scissors.  She began second-guessing herself and
colleagues also started pointing out her errors.  She felt she was being picked
on, and became angry.

[34]        
By February 2, 2007, Ms. Sarowa reported to Ms. LeBlanc that she was 60
percent improved since the accident.  On February 7, however, Ms. Sarowa
reported neck pain; and on February 14, she told Ms. LeBlanc she was having
headaches and sometimes experienced nausea with the headaches.

[35]        
After the appointment on February 14, 2007, Ms. Sarowa did not return to
see Ms. LeBlanc for six weeks.  She returned for one treatment on March 28,
2007; did not show for an appointment scheduled for March 30 and never came
back.

[36]        
Ms. Sarowa saw Dr. Randhawa on February 22, 2007.  She reported to her
that she was being verbally harassed by her team leader at work, and that she
was afraid of him.   Ms. Sarowa lodged a complaint with supervisor Denis
LePage, stating that she believed that her team leader was “picking on her”,
and that she was not being treated the same as other employees.  She was moved
to another team with a different team leader.

[37]        
At this trial, Ms. Sarowa attributed her problems at work to her
accident injuries.  She said the neck and back pain and headaches were
interfering with her ability to focus on her work.  She agreed, however, that
in early April 2007, while continuing to work full time at the airport, she
decided to take on a second job, working at a Tim Horton’s restaurant in
Abbotsford on the days she was not working at the airport.

[38]        
Tracey Price, the owner of the restaurant, interviewed Ms. Sarowa prior
to hiring her.  Ms. Sarowa told Ms. Price she wanted four-hour shifts because
she was also working at the airport.  Ms. Sarowa agreed in cross-examination
that she did not tell Ms. Price that she had been injured in a motor vehicle
accident.  She said that she did not think she would be hired if she said she
had been in an accident.

[39]        
Ms. Price testified that Ms. Sarowa was hired in a customer service
position, which involved taking orders from customers and in-putting the orders
on a touch screen, preparing coffee, serving food items on trays and in bags. 
Ms. Price said employees are required to stand throughout their shifts and they
must also lean over and bend down to retrieve drink cups, and food products
such as muffins and doughnuts.  From April 11 to April 25, 2007, Ms. Sarowa
worked 30 hours at the restaurant, while she was also working full-time at the
airport.

[40]        
On April 30, 2007 Denis LePage sent an e-mail to Mr. Andreachuk
recommending that Ms. Sarowa’s employment at the airport be terminated.  He
listed a number of deficiencies in her work culminating with an incident on
April 27 when she was working on the x-ray machine and missed a large jack
knife.  As a result of that error and previous deficiencies in her performance,
her new team leader had lost confidence in Ms. Sarowa and was refusing to allow
her to do x-ray screening.

[41]        
For two months − between March 1 and April 30, 2007, Ms. Sarowa
had not seen Dr. Randhawa.   On April 30, 2007, Ms. Sarowa went to see Dr.
Randhawa and asked her to write a note indicating that Ms. Sarowa needed to be
off work from May 1 to May 14, 2007.  Dr. Randhawa wrote the note.  The note is
on a form called a “disability certificate” and the form of the note is
unusual.  It is dated “April 30/07” and states:

To Whom It May Concern

This
is to certify that the above patient was under my professional care from May
1/07 to May 14/07 inclusive, and was totally incapacitated during
this time.  This is to further certify that the above patient has now recovered
sufficiently to be able to return to light/regular duties on – June – July?

The word “light” in the phrase “light/regular duties” is
circled.

[42]        
I conclude that it is more probable than not that Ms. Sarowa knew that
her job at the airport was seriously at risk as a result of the mistakes she
had made.  As I stated earlier, Dr. Randhawa was not available for
cross-examination at this trial, and her note is not admissible to prove that
Ms. Sarowa was incapable of working, or that any incapacity was caused by the
motor vehicle accident.   Ms. Sarowa delivered Dr. Randhawa’s note to her
employer, and did not return to work at the airport after her shift on April
28.

[43]        
She did, however, continue to work at Tim Horton’s.  From April 26 to
May 7, she worked 27 hours, and from May 11 to May 26 she worked 16 hours.

[44]        
On May 8, 2007, Ms. Sarowa sent an e-mail to Randy Andreachuk stating
that she was feeling a lot better and would return to work at the airport on
May 14.  She did not tell Mr. Andreachuk that the reason for her absence was
injuries received in a motor vehicle accident.  Instead, she wrote that when
she returned to work she did not want anyone to ask her why she had been off
work because she did not want to discuss her medical situation, and considered
it to be a personal and confidential matter.  She also asked Mr. Andreachuk to
ensure that no one at work spoke to her in a loud or rude manner; and that if
she made a mistake she was to be addressed in a professional and polite manner
and with respect.  She said she got very upset and emotional when someone spoke
to her in a loud, aggressive and rude manner.

[45]        
Mr. Andreachuk replied by e-mail on May 12, 2007.  He told Ms. Sarowa
that her shift had been covered for May 14, as her doctor’s note had been vague
about her return date; that he would need to meet with her; and that she needed
to provide a note from her doctor indicating she was medically fit to return to
work.  Mr. Andreachuk sent another e-mail on May 14, 2007 indicating he
would call her with a meeting time.

[46]        
On May 16, 2007, Dr. Randhawa wrote a note for Ms. Sarowa stating that
she would not be ready to work until at least July 31, 2007 “… or until
further notice by her medical care team for medical reasons”.  The nature of
the “medical reasons” is not stated.  As stated above, this note is not
evidence that Ms. Sarowa was actually unable to work, or that the “medical
reasons” referred to in the note relate to the November 26, 2006 motor vehicle
accident.

[47]        
Ms. Sarowa faxed this note to Mr. LePage and sent an e-mail to Mr.
Andreachuk indicating that she was not medically fit to return to work.  She
applied for Canada Employment Insurance disability benefits and was paid 15
weeks of disability benefits.

[48]        
Near the end of May, Ms. Sarowa also obtained a note from Dr. Randhawa
to give to Ms. Price, indicating that Ms. Sarowa needed to be off work.

[49]        
On May 25, 2007, Ms. Sarowa went to see chiropractor Aneet
Grewal-Basra.  She had seven chiropractic treatments in June; two in the first
week of July and then stopped seeing the chiropractor.   Dr. Basra recommended
that Ms. Sarowa do exercises to strengthen the muscles of her cervical and
lumbar spine; and to strengthen the core abdominal muscles.

[50]        
At the request of the defendant’s insurer, Ms. Sarowa was interviewed
and examined on June 26, 2007 by Dr. M. Boyle, an orthopaedic surgeon.  Ms.
Sarowa was off work at this time, having last worked at the airport on April
28, 2007, and at Tim Horton’s in mid to late May.  After interviewing and
examining Ms. Sarowa, Dr. Boyle’s opinion was that she had suffered a
myofascial strain of the cervical and lumbar muscles as a result of the
accident, but that the injury was mild.  He observed Ms. Sarowa to display
exaggerated “pain behaviour” throughout the interview and examination.  He
noted that she moaned, groaned and grimaced.  He said that patients who are in
pain generally avoid a lot of movement in order to avoid discomfort, but Ms.
Sarowa was restless.  When she was specifically asked to demonstrate range of
motion it appeared quite limited, but she demonstrated a much freer range of
motion spontaneously during the interview and other parts of his assessment. 
He said that she could freely straight-leg raise from a sitting position, but
couldn’t bend forward when standing − an inconsistent presentation from
an anatomical point of view.

[51]        
Ms. Sarowa told Dr. Boyle that she had not had headaches prior to the
motor vehicle accident.  This is inaccurate.  Clinical records indicate that
Ms. Sarowa complained to her doctors of headaches before the motor vehicle
accident.  Ms. Sarowa agreed at trial that she had headaches before the
accident, but said they were different from the headaches she had after the
accident.

[52]        
Ms. Sarowa told Dr. Boyle that the headaches she had experienced since
the accident were at the front of her head.  Dr. Boyle testified that frontal
headache does not originate with the neck muscles and is usually
stress-induced, or migraine-type headache.

[53]        
Dr. Boyle’s opinion was that Ms. Sarowa’s accident injuries were not
incapacitating.  He said that Ms. Sarowa ought not to have stopped working on
April 28, 2007 and he recommended that she be encouraged to return to work
immediately.  He recommended medical management in the form of stretching and
strengthening exercises, core stabilization exercises, walking and the use of
non-steroidal anti-inflammatory medications.

[54]        
 Dr. Boyle did not recommend massage therapy, but on June 29, 2007, Ms. Sarowa
started seeing massage therapist Danielle Arens.  As was the case with Ms.
LeBlanc, massage therapist Danielle Arens did not testify as an expert opinion
witness.  She said Ms. Sarowa complained of tightness at the base of her skull
and over her collar bones.  She testified that she worked on Ms. Sarowa’s low
back, neck and shoulders.  She said that although Ms. Sarowa reported feeling
better after each treatment, she also reported that the relief was only
temporary.

[55]        
Ms. Arens’ records indicate that Ms. Sarowa had one or two massage
treatments weekly until the third week of August, 2007.  On August 14, 2007,
Ms. Sarowa reported to Ms. Arens that she was feeling a lot better
generally.  Ms. Sarowa had one massage therapy session in September and
two in October, 2007; and then did not return until March 2008.

[56]        
At trial, although Ms. Sarowa testified that she had continued to do the
exercises that her physiotherapist had recommended early in 2007, she was able
to demonstrate only a couple of head-movements when asked to describe the
exercises she does.  On July 31, 2007, Ms. Sarowa told Ms. Arens, her massage
therapist, that she was not exercising.  Dr. Dhawan, who examined Ms. Sarowa on
a referral from her family doctor in January 2009, reported that Ms. Sarowa was
“de-conditioned”, with poor posture, tight hamstring muscles and weak core
muscles.  He recommended that she exercise to improve her cardiovascular
fitness, strengthen her core muscles and improve her posture.  I conclude that
Ms. Sarowa did not comply with the recommendations of her physiotherapist to
engage in regular exercise, and that she was not being truthful when she
maintained at trial that she had been doing the recommended exercises.

[57]        
 On July 31, 2007, Ms. Sarowa sent an e-mail to Mr. Andreachuk advising
that she had faxed a medical note to Mr. LePage and that she would like to
return to work on September 1, 2007.   She stated that she would be physically
fit and ready to return to work on September 1.  On August 3, 2007, she
e-mailed Mr. Andreachuk again, indicating she would like a gradual return to
work, working three half-days the first week, and increasing her shifts until
October 1, 2007 when she would return to her regular schedule.

[58]        
Mr. Andreachuk reviewed Ms. Sarowa’s employment record and decided that
she should be let go.  He arranged to meet with her on August 30, 2007 and
delivered a letter to her on that day indicating that her employment with the
Corps was terminated and that she would be paid two weeks’ salary in lieu of
notice.

[59]        
Ms. Sarowa applied for and began receiving regular unemployment
insurance benefits.  She worked some shifts at Tim Horton’s between October 1
and November 11, 2007.   In mid-November, Ms. Sarowa and her husband went to
India and remained there until the middle of December.  Ms. Sarowa testified
they went to visit her husband’s brother, who was ill.

[60]        
Ms. Sarowa testified that after losing her job at the airport she looked
for jobs in the Abbotsford area but was not successful in finding work. 
However, she also testified that she did not really want to find work in
Abbotsford, because she wanted to persuade her husband to move to Vancouver. 
With the exception of the few shifts worked at Tim Horton’s in October and
early November 2007, Ms. Sarowa did not work again until March 2008, when she
took a six-month contract position as a receptionist in Vancouver.  When that
job ended, she found a job with Brinks in Vancouver, working in the money
counting room.

[61]        
When applying for the job with Brinks, Ms. Sarowa had to complete a
pre-interview questionnaire.  One of the questions was:

Do
you have any physical limitations, for example lifting or sitting for long
periods of time?  Could you lift up to 25 lbs?

The answer to this question was:

No physical limitations.

[62]        
Ms. Sarowa was also required to have a physical examination as a pre-requisite
to employment with Brinks.  She was examined on September 16, 2008 by Dr. M.
Mason.  A form completed by Dr. Mason was admitted into evidence.  Part of the
application form is a checklist.  The examiner is directed to review the patient’s
history for the conditions listed, and to check the form if a patient has a
pre-existing condition, or a history of condition.  “Back” and “neck”
conditions are among those listed on the form.  Dr. Mason did not check off
either of these.  At the bottom of the form, the physician is asked to indicate
if the patient has a medical condition which “… may impact them from safely
performing the type of work applied for”.  Among the requirements of the job
were repetitive lifting and frequent bending.  Dr. Mason indicated that Ms.
Sarowa did not have any medical condition that would preclude her from safely
performing work in the money room.

[63]        
Dr. Mason’s opinion is not admissible for the truth of its contents. 
However, Ms. Sarowa agreed in cross-examination that she did not report any
medical problems when applying for the job with Brinks.  She was extremely
evasive when pressed about whether she had been truthful in responding to the
questions listed on the form and during her meeting with Dr. Mason.

[64]        
Ms. Sarowa started work with Brinks on September 25, 2008 and worked
there, apparently without difficulty, until January 30, 2009.  She quit her
Brinks job in January because the company was relocating its premises from
Vancouver to Langley.  Ms. Sarowa did not want to work in Langley because it
was too close to Abbotsford and she believed that her husband would use the
location of her work as a reason to stay in the Fraser Valley.

[65]        
The only expert opinion evidence provided in the plaintiff’s case is the
evidence of Dr. P. Dhawan, a physiatrist.  Dr. Dhawan saw Ms. Sarowa on January
14, 2009 at the request of Dr. Randhawa.  There are a number of problems with
Dr. Dhawan’s opinion.  One of these is the fact that he did not see Ms.
Sarowa until more than two years after the motor vehicle accident, and his
report does not indicate that he had access to Dr. Randhawa’s clinical records,
or the records of Ms. LeBlanc, Ms. Arens, or the chiropractor who treated
Ms. Sarowa.

[66]        
Dr. Dhawan indicated in his report that Ms. Sarowa’s vehicle had “… collided
head on with an oncoming vehicle …”  This is incorrect.  According to Dr.
Dhawan’s report, Ms. Sarowa told him that she had been “quite depressed” after
the accident and had been taking anti-depressants as a result.  This statement
is not supported by the clinical records of the health care professionals who
treated Ms. Sarowa after the accident; or by Ms. Sarowa’s own testimony at
trial.  Dr. Dhawan also stated in his report that because of back and neck pain
Ms. Sarowa had to leave her job at the airport after “… trying for a few
weeks”.  Ms. Sarowa actually worked at the airport for five months after the
accident, and intended to return to work there on September 1, 2007 if her
employment had not been terminated.

[67]        
The deficiencies, omissions, and factual errors in Dr. Dhawan’s report
lead me to conclude that I should give little, if any, weight to his opinions.

[68]        
Ms. Sarowa testified that she has not fully recovered from her accident
injuries and continues to have neck and back discomfort, and frequent
headaches.  As is usually the case, much of the plaintiff’s case rests on the
extent to which the plaintiff is found to be a credible witness.  In this case,
Ms. Sarowa was a less than satisfactory witness.  She was frequently evasive
and non-responsive.  She was unable, or declined, to explain why she had
claimed to be separated from her husband on December 31, 2007 when filing her
2007 tax return; but claimed at trial that she and her husband were back
together at that time.

[69]        
If she was being truthful at trial about the severity and duration of
her accident injuries, than I would have to conclude that she omitted relevant
information about her health when she applied for the job at Tim Horton’s in
April 2007, and was deliberately untruthful when she applied for work at Brinks
in September 2008.  I think it more likely that she was exaggerating the
severity and duration of her injuries when testifying here at trial; as the
evidence of her employers at Tim Horton’s and Brinks indicates she did not, in
fact, demonstrate any difficulty with the physical performance of her job
duties.

[70]        
I am satisfied that Ms. Sarowa has proved on the balance of
probabilities that she suffered a mild strain to soft tissues in her neck and
lower back as a result of the motor vehicle accident on November 26, 2006.  I
am satisfied that her injuries caused her discomfort but were not
incapacitating.  I conclude that she had substantially recovered from her
injuries within six months after the accident, although she continued to have
some mild, non-debilitating neck and lower back pain after May 2007.

[71]        
I conclude that the defendant has established on a balance of
probabilities that Ms. Sarowa failed to mitigate her damages by following the
recommendations of Ms. LeBlanc, Dr. Basra and Dr. Boyle to engage in a regular
program of exercise to stretch and strengthen the muscle in her neck and back;
and to strengthen her core muscles.  Had she followed these recommendations, I
conclude, she would have been fully recovered within one year after the
accident.

DAMAGES

Special Damages

[72]        
Ms. Sarowa is seeking an award of $1,917.75 for pre-trial out of pocket
expenses, calculated as follows:

 Medications –
$272.75

 Chiropractic Care –
$380

 Physiotherapy – $165

 Massage
– $1,100

[73]        
 All of the medications for which Ms. Sarowa is seeking reimbursement
were purchased on or after September 20, 2007.  Dr. Boyle, who assessed Ms.
Sarowa on June 26, 2007, recommended treatment with non-steroidal
anti-inflammatories.  I award Ms. Sarowa the sum of $102.21 for medications
purchased up to and including November 3, 2007.  As stated earlier, I conclude
that had Ms. Sarowa complied with the recommendations of her health care
providers, she would have made a full recovery by November 2007.

[74]        
I award the sum of $380 for chiropractic care up to and including July
5, 2007 and $165 for physiotherapy provided up to and including March 28, 2007.

[75]        
Ms. Sarowa started massage therapy on June 29, 2007 and was continuing
to have treatments into the early part of 2009.  She was referred for massage
therapy by Dr. Randhawa, according to a note in evidence.  This note is not
admissible as proof that the massage therapy was medically necessary.  However,
I conclude that Ms. Sarowa was justified in going for massage therapy because
she had received the note from her doctor; and because it gave her temporary
relief from discomfort.  I’m not persuaded that she should be reimbursed for
treatments after October 24, 2007 – the date of her last treatment in 2007, given
my earlier conclusion that she should have made a full recovery no later than
November 2007.  I award her the sum of $700 for massage therapy.

[76]        
Adding these sums together, I arrive at an award of $1,347.21 for
special damages.

Past Loss of Income

[77]        
No medical evidence was provided to support Ms. Sarowa’s claim that she
was incapacitated from working at the airport in May 2007; or that the mistakes
she was making at work were the result of symptoms attributable to her accident
injuries.   Her performance at work prior to the accident was not exemplary,
although she was able to get through her first two probationary assessments. 
She was also able to pass her third and final probationary assessment after the
motor vehicle accident, even though it would be reasonable to conclude that the
symptoms resulting from the accident would be most severe in the period
immediately following the event.

[78]        
The evidence of Mr. Andreachuk also indicates that it was as much Ms. Sarowa’s
response to supervision and criticism at work; as the mistakes she was making
in screening for dangerous items; that led to her eventual dismissal.  She
blamed others for her mistakes and claimed that she was being harassed by her
team leader.  When she took time off work she declined to disclose the nature
of the “medical reasons” said to necessitate her absence from work.

[79]        
Dr. Boyle’s opinion, which I found to be persuasive, is that Ms. Sarowa
was not incapacitated from working by reason of the accident injuries and
should not have taken time off work at the end of April 2007.  Ms. Sarowa told
Mr. Andreachuk she was feeling better and would return to work on May 14.

[80]        
For all of these reasons, but primarily relying on Dr. Boyle’s opinion,
I conclude that Ms. Sarowa has failed to demonstrate, on a balance of
probabilities, that she was unable to work in May, June, July and August 2007
as a result of her accident injuries; or that the loss of her job at the end of
August 2007 was caused, or contributed to by the accident injuries.  Ms. Sarowa
has not proved a loss of income resulting from the motor vehicle accident.

[81]        
Had I concluded that Ms. Sarowa had lost income by reason of the
accident injuries, I would have concluded that she failed to mitigate her
damages.  Ms. Sarowa conceded in her testimony that although she looked
for work in the Abbotsford area after losing her job at the airport, she was
not really motivated to find a job there, as she hoped to persuade her husband
to move to Vancouver.  She also went to India for six weeks in the fall of 2007,
when she could have been actively seeking employment.

Future Care

[82]        
The plaintiff is seeking an award of $5,600 for the cost of future
care.  Of this, $3,600 is the cost for three treatments with Botox, recommended
by Dr. Dhawan; with the balance claimed as the cost of a fitness pass and the
services of a personal trainer.

[83]        
Dr. Boyle testified that the frontal headaches reported by Ms. Sarowa
were likely not caused by any soft tissue injury to her neck and were more
likely migraine headaches, or stress-induced.  The fact that Ms. Sarowa
reported nausea associated with the headaches supports Dr. Boyle’s opinion that
the headaches were more likely migraines than originating in the cervical area.

[84]        
I said earlier that I concluded that Dr. Dhawan’s opinions should be
given little or no weight.  I am not persuaded that the headaches reported to
Dr. Dhawan in January 2009 are causally linked to the motor vehicle accident in
November 2006.

[85]        
Ms. Sarowa failed to comply with recommendations made to her in 2007 to
remain physically active and to exercise to strengthen her neck and back
muscles and her core muscles.  Had she done so, I am satisfied she would not
have been de-conditioned, with poor posture, tight hamstring muscles and weak
core muscles in January 2009.  I am not persuaded that her need for a fitness
regime in future is caused or contributed to by the accident injuries.  I make
no award for the cost of future care.

General Damages

[86]        
I turn now to the quantum of the award for damages for pain, discomfort
and loss of the enjoyment of life.  Ms. Sarowa is seeking an award of $40,000;
the defendant submits that the award should not exceed $7,500.

[87]        
Plaintiff’s counsel provided the court with three authorities − Crichton
v. McNaughton, 2008 BCSC 556; Kop v. Lobb, 2008 BCSC 1237 and Park
v. Arthur, 2007 BCSC 1365.  In the first of these cases, the plaintiff was
awarded $40,000 for soft tissue injuries that had disabled from working for
three and one-half months, and were still causing pain three years after the
accident.

[88]        
In Kop v. Lobb, the plaintiff was awarded $30,000 for mild to
moderate soft tissue injuries to her neck and back that had remained chronic
for two years after the accident.

[89]        
In Park v. Arthur, Justice Gerow awarded $35,000 general damages
for soft tissue injuries that she concluded continued to affect the plaintiff
for two and a half years after the accident, and were likely to cause flare-ups
in future.

[90]        
Counsel for the defendant provided the court with the following relevant
authorities on quantum:

  Al-Mandlawi v.
Gara, 2005 BCSC 740

  Andrew v. Gibson,
2001 BCSC 1769

  Kamerbeek v.
Jones, 2001 BCSC 1810

  Mohammed v. Rai,
2005 BCSC 1918

 Nichollson v.
Armstrong, 2003 BCSC 1988

 Ostovic v. Foggin, 2009 BCSC 58

 Varzari
v. Vinh, 2004 BCSC 641

[91]        
In the first of these cases, the parties proceeded on the basis of an
admission by Mr. Al-Mandlawi that he had substantially recovered from soft
tissue injuries to his neck and back within seven months.  Aside from evidence
that the plaintiff’s injuries had caused him pain at work, he did not testify
about how the accidence injuries had impacted his life.  Justice Kirkpatrick
awarded $7,500 for non-pecuniary damages and commented that the award was at
the high end of the range for the kind of injuries sustained.

[92]        
In Andrews v. Gibson, following a summary trial, Justice Quijano
awarded $7000 to a plaintiff she concluded had pain for three months
post-accident.

[93]        
The plaintiff in Kamerbeek v. Jones, also a summary trial case,
was awarded $7,500 for none-pecuniary damages for a mild soft tissue injury
that resolved within three months, followed by a further period of nine months
of intermittent discomfort precipitated by activity.

[94]        
In Mohammed v. Rai, Justice Goepel awarded $3,000 to one
plaintiff and $5,000 to the other for soft tissue injuries causing discomfort
for four months, in the case of the first plaintiff, and eight months in the
case of the second.

[95]        
In Nichollson v. Armstrong, Justice Goepel awarded $6,500 to a
plaintiff whose soft tissue injuries, Justice Goepel concluded, would have
resolved within six to nine months, if the plaintiff had followed medical
advice.

[96]        
In Ostovic v. Foggin, Justice Savage awarded $7,500 to a
plaintiff who suffered neck and shoulder pain and headaches for six months.

[97]        
Finally, in Varzari v. Vinh, Justice Ehrcke awarded $600 for soft
tissue injuries that had largely resolved within six months after the accident.

[98]        
I am satisfied that following the motor vehicle accident Ms. Sarowa had
stiffness in her neck and lower back, and also experienced pain initially, and
discomfort later on, as a result of the soft tissue strain caused by the
accident.  The discomfort from her injuries interfered with her sleep,
resulting in some fatigue, but did not incapacitate her from working.

[99]        
Ms. Sarowa’s testimony does not establish that the accident injuries had
a significant impact on social or recreational activities she enjoyed before
the accident, or any impact on her ability to do household chores.

[100]     Her
testimony indicates she was not physically active before the accident.  She did
testify that when she was in high school and shortly after leaving high school
she enjoyed Bhangra dancing at family functions and social events, but her
testimony does not indicate that she danced regularly either as a form of
exercise or recreation; or that the motor vehicle accident prevented her from
dancing, or enjoying dancing.

[101]     Ms. Sarowa
testified that her husband was athletic and that before the motor vehicle
accident she attempted running with him, but was too slow and would generally
stop running and walk.  She said it was too embarrassing to try to keep up with
her husband.  She testified that she had not tried running after the motor
vehicle accident because she thought it would make her back worse.  She said
she did continue walking, and Dr. Boyle recommended walking in June 2007, but
the tight hamstring muscles noted by Dr. Dhawan in January 2009 would suggest
that she was not walking regularly for exercise.

[102]     Ms. Sarowa
testified that she tried swimming as a form of exercise after the accident but
found she could not swim the way people normally do because of pain in her neck
and back.  She did not mention this to Dr. Boyle when she was assessed by him
in June 2007.  She told him she had played floor hockey, soccer and volleyball
on a “pickup” basis, with friends and family, but no longer participated in
these activities.  She did not tell him she had discontinued these activities
as a result of the accident injuries and did not testify about these activities
at all during the trial.  She told Dr. Boyle that her low back pain was
increased by vacuuming.  According to Dr. Dhawan’s report, she told him that
household chores exacerbated her discomfort.  However, she did not testify at
trial about any impact the accident injuries had had on her ability to do
household chores.

[103]     Although I
am of the view that Ms. Sarowa exaggerated the severity and duration of the
discomfort from her injuries, I accept that she did have pain and tightness in
her neck and lower back following the motor vehicle accident.  She was, I
conclude, about 60 percent recovered by February 2, 2007, according to her
self-report to Ms. LeBlanc, and as I stated earlier, I am satisfied she was
substantially recovered, or would have been, had she mitigated her loss by
following the recommendations of her care givers, no later than 12 months after
the accident.

[104]     I believe
that Ms. Sarowa did experience increased discomfort in her neck and lower back
at work, especially when she was assigned to the x-ray screening of bags, and
when she practiced for longer periods on the simulator.

[105]     I award
Ms. Sarowa the sum of $15,000 for non-pecuniary damages.

SUMMARY

[106]    
In summary, I award the following damages to Ms. Sarowa:

Special Damages                                  $1,347.21

Non-Pecuniary Damages                       $15,000.00

Total                                                     $16,347.21

COSTS

[107]    
The parties did not make submissions about costs.  If they are unable to
agree on costs, they are at liberty to make submissions in writing, or arrange
to appear for oral submissions.

“W.G.
Baker J.”