IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100914

Docket: M110918

Registry:
New Westminster

Between:

Melanie Catherine
Houston

Plaintiff

And

Laura Anne Kine
and Leslie Anne Williams

Defendants

Before:
The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1]          
The plaintiff, Melanie Houston, claims damages for injuries she
sustained in a motor vehicle accident on February 2, 2006 at Clarke Road and
Glenayre Drive in Coquitlam, British Columbia. Liability is admitted by the
defendants. Ms. Houston seeks compensation for pain, suffering and loss of
enjoyment of life; loss of opportunity to earn income in the past; diminished
earning capacity; future care, loss of homemaking capacity and special damages.

[2]          
The plaintiff alleges that she suffered multiple injuries in the accident
including chronic pain in her upper neck and back which is activity related and
restricts her range of motion in her neck; a significant lower back injury
which causes chronic and constant pain which is likely life long, although
there may be some improvement; and psychological injuries including a major
depressive disorder, pain disorder, anxiety disorder and post traumatic
syndrome disorder which is in partial remission.

[3]          
The defendants assert that while Ms. Houston did suffer injury,
the issue is the extent, severity and duration of that injury.

[4]          
During the trial I made a ruling on the admissibility of surveillance
evidence by video and by witnesses.  I have attached the ruling as Appendix A.

Background

[5]          
At the time of the accident, Ms. Houston was 18 years old. She had not
completed her grade 12 diploma, but had plans to upgrade her academic math and
proceed to BCIT to pursue a career as an x-ray technician. Ms. Houston was not
employed but was actively looking for employment.

[6]          
Before the accident, Ms. Houston’s parents describe her as active, happy
and outgoing and engaged in various sporting activities. Ms. Houston describes
her main sporting activity as windsurfing which was her “passion”. She had
started at age four or five and regularly participated in the sport and in
competition including the Canadian Youth Windsurfing Championships.

[7]          
During high school, Ms. Houston had worked in a number of jobs. She
switched from a regular high school program to an alternative school in order
to take advantage of the flexibility the alternative school offered which
allowed her to work more. Her last job before the accident was at Superstore,
which she quit in August 2005.

[8]          
Ms. Houston and her parents describe her as having a happy well-balanced
childhood. She was a victim of a sexual assault when she was 13. It was a
traumatic experience. However, Ms. Houston was emotionally well before the accident.

The Plaintiff’s Injuries

[9]          
The plaintiff was injured when the defendant, Laura Anne Kine turned
left in front of her vehicle. The collision was essentially head on. Ms.
Houston and her passenger Chelsea Ridyard described the impact as significant. Ms.
Houston was travelling at approximately 40 – 45 kilometres per hour before the
impact. The van that she was driving was extensively damaged and was rendered a
total loss.

[10]       
The plaintiff testifies that upon impact her body was jarred back and
forth. She says she was scared and in shock. She sat in her vehicle until an
ambulance arrived and the paramedics escorted her to the ambulance. She was
taken to Eagle Ridge Hospital and was discharged into the care of her father. Ms.
Houston stated that her neck and shoulders were hurting and her low back was
hurting into her mid back. She was crying during the entire time she was in the
hospital. By the evening, the plaintiff says she was in significant discomfort and
was very emotional.

[11]       
The plaintiff attended at her family physician’s office the next day. She
explained to Dr. Mawani that her lower back was very sore, she had a headache,
numbness and tingling, and felt anxious and nervous in a vehicle. The range of
motion in her neck and her low back was restricted. Over the following weeks,
the plaintiff continued to experience pain and discomfort in her low back. Her
neck and shoulder symptoms improved. She remained anxious.

[12]       
On February 19, 2006, the plaintiff started working at Cooper’s Foods in
Maple Ridge as a part-time cashier. The plaintiff said that the job aggravated
her symptoms, particularly her low back pain. Standing for long periods
bothered her back. The plaintiff says she quit because of low back pain.

[13]       
On April 18, 2006, Ms. Houston started employment at Clancy Meats in the
deli department. The job required bending and stooping and the plaintiff said
that those activities aggravated her symptoms in her neck, shoulder and upper
back. The plaintiff says she left that employment because of the aggravation of
her symptoms on July 15, 2006.

[14]       
In August of 2006, Ms. Houston learned that she was pregnant. She moved
in with the father of the child, James Bosley. She obtained employment with
Julie Russo, as a childcare provider. She cared for Ms. Russo’s 11-month-old
son. The plaintiff says that the requirements associated with childcare
significantly increased her pain and discomfort. She left that employment after
a difference over remuneration. Ms. Russo was not aware that the plaintiff had
been in an accident. She said she did not observe any signs that Ms. Houston
was suffering from any pain or disability, nor did Ms. Houston advise her of
any difficulties conducting childcare.

[15]       
Ms. Houston was employed at Brentwood Loonie Plus Store in December 2006
and January 2007. Ms. Houston stated that she was a cashier. This job also
increased her pain and discomfort. She left that job on January 19, 2007 and
went on maternity leave. Her employment record notes that as the reason for her
leaving that job.

[16]       
After her employment at Brentwood Loonie Plus, the plaintiff applied for
employment insurance maternity benefits. In her application for benefits, she
does not refer to injuries sustained in the accident of February 2, 2006.

[17]       
On March 18, 2007, Ms. Houston gave birth to her daughter Kathleen. She says
that the pregnancy was extremely difficult because of her ongoing back pain. The
birthing process was also difficult because of intense low back pain. After the
birth, Ms. Houston explained that she had difficulty breast-feeding her
daughter as the position required exasperated her back symptoms. She expressed
milk for several months, which her daughter was fed by bottle. The plaintiff
also had difficulty lifting her child, particularly in and out of her car seat.

[18]       
During the summer of 2007 the plaintiff describes her arguing with James
Bosley frequently. He was working full-time and she was at home with their
daughter. She describes Mr. Bosley coming home and finding the house not clean
and no dinner cooked. Mr. Bosley wanted to go out and Ms. Houston preferred to
stay home. Ms. Houston says she was in too much pain. They would argue about
sex; Mr. Bosley wanted to be intimate and Ms. Houston did not “want anything to
do with it”. In September 2007, Ms. Houston and Mr. Bosley decided to move to
Okanagan Falls and stay in an apartment in Ms. Houston’s mother’s home.

[19]       
In February 2008 the plaintiff obtained employment at Sims Grocery in
Okanagan Falls. She was a cashier. Her responsibilities included supplying the
shelves and mopping the floor. She worked about 15 hours a week and about four
to five hours per shift. One of the requirements of the job, stocking the
shelves with liquor, was, according to the plaintiff, particularly hard. She
said she had the assistance of her brother and Mr. Bosley for restocking and
mopping. The plaintiff quit because the pain was “too severe”. Her employer at
Sims Grocery, Alex Park, was not aware of any assistance that the plaintiff had
in stocking shelves or mopping. He knew of one occasion where the plaintiff
called in sick due to back pain. He understood that Ms. Houston left her
employment to return to Vancouver. She did not advise him that she was leaving
because of physical problems or injuries.

[20]       
In April 2008, Mr. Bosley and Ms. Houston moved back to Vancouver. They
stayed temporarily with Ms. Houston’s father and then found an apartment in
Port Moody.

[21]       
In the summer of 2008 the plaintiff attempted windsurfing. She explains
that it caused significant exasperation of her back pain. She was on the water
for 10 to 15 minutes and then stopped. She also tried “kite boarding” which is
a modified form of windsurfing that is supposed to be easier on the back, on
three separate occasions. Each attempt caused an increase in her back symptoms,
and she did not continue.

[22]       
In January 2009, Ms. Houston’s relationship with Mr. Bosley ended. She
describes that their arguments were occurring more and more. Mr. Bosley would
go out with his friends. He would come home from work, get changed and then
leave again. Ms. Houston says that she did not blame him, he would invite her
to go with him but she did not want to.

[23]       
In April 2009, Ms. Houston obtained employment as a host at a local golf
course restaurant. Her duties included bussing tables. The plaintiff worked
three shifts but found that the job produced “excruciating pain” in her lower
back.

[24]       
Ms. Houston began a new romantic relationship in the summer of 2009 with
Robin Bowles.

[25]       
The plaintiff says that before the accident she was extremely active. She
enjoyed going for long walks and tried to get fit for windsurfing in the summer.
She would snowboard, exercise and go out with friends. She says she does not do
any of those things anymore. She says her daughter is “why I get up in the
morning, there is nothing else to get up for.” She cares for her daughter and
does grocery shopping. She says her house cleaning is not kept up. She
describes herself as sad and depressed and says that she has times when she
believes she is alone although she knows she has family support but she is “not
able to be out there doing what I used to do.”  She takes antidepressant
medication and anxiety pills as well as six to eight Tylenol3 per day. She says
she wakes up exhausted and does not have much energy to do anything. She is
unable to work although she has tried. She would like to work and continue her
upgrading and would like to take the BCIT x-ray technician’s course.

[26]       
One activity that Ms. Houston continues to enjoy is sun tanning. She
goes to a tanning salon from one to four times per week. She finds the heat
feels good. She attended a tanning salon after her first visit to Karp
Rehabilitation.

[27]       
Ms. Houston’s parents describe the significant impact the accident has
had on their daughter. Lorraine Shatz, the plaintiff’s mother, describes Ms.
Houston as “an active happy go lucky young person” before the accident. All of
those activities she says have been taken away and “it’s almost like [Ms.
Houston] just lost all zest for life”.

[28]       
The plaintiff’s father, Walter Houston, says the plaintiff’s

joy for life has been somewhat
diminished … It’s almost like she’s sitting on the sidelines watching life go
by… She is sad quite often. … She’s just not the same person… as … the way
she was. That accident has had a profound effect on her. It changed her
dramatically.

[29]       
Chelsea and Carly Ridyard are sisters. Chelsea has been a friend of the
plaintiff’s since elementary school. She was a passenger in Ms. Houston’s vehicle
at the time of the accident. Both sisters have fallen out with Ms. Houston over
matters related to her failure to show up for babysitting duties,
although Ms. Houston’s evidence demonstrates that she was unable to because she
was hospitalized. The Ridyard sisters also disapprove of the way Ms.
Houston treated her ex-boyfriend, their cousin, James Bosley.

[30]       
Chelsea Ridyard testifies that the plaintiff told her that her intention
was to “milk” the accident for anything she could get. Chelsea Ridyard says
that after her pregnancy, Ms. Houston was concerned about her weight and
embarked on an exercise program including up to 500 stomach crunches per day. She
disagrees that Ms. Houston suffered any driving anxiety. Rather, Ms. Ridyard says,
she is the one who has experienced driving anxiety.

[31]       
Carly Ridyard employed Ms. Houston in April 2009 to provide babysitting
services. Carly Ridyard testified that she was satisfied with the plaintiff’s
babysitting. She testified that she saw Ms. Houston carrying Kathleen on many
occasions. She said that Ms. Houston would carry Kathleen at times she needed
consoling. She also stated that Ms. Houston told her that she used the gym that
was available at her apartment building.

[32]       
Suzanne Scott was a property manager of the apartment building in Port
Moody where the plaintiff moved with James Bosley and Kathleen in the spring of
2008. She testifies that Ms. Houston’s new boyfriend was present regularly in a
matter of weeks after James Bosley moved out.

[33]       
Kevin Danyer is a kinesiologist who directed Ms. Houston’s active
rehabilitation program through Karp Rehabilitation. He made objective findings
of a restrictive range of motion in the plaintiff’s neck, upper and lower back.
He observed various behaviours displayed by the plaintiff that showed that she
was in significant pain. He considered that Ms. Houston was pain focused. Mr.
Danyer considered that Ms. Houston did not seem motivated and needed to put
better effort into her rehabilitation.

[34]       
Mr. Danyer also works at a bar in the evenings. After Ms. Houston’s
first appointment with him, he saw her attending that bar in the evening with
friends.

Medical Evidence

Dr. Shiraz Mawani

[35]       
Dr. Shiraz Mawani was the plaintiff’s family doctor and examined her the
day after the accident. On examination, he found reduced range of movement in
her neck and low back. He described her as being tender to palpation. She was
weepy. Ms. Houston told him that she was feeling “shock”. Dr. Mawani next saw
the plaintiff on March 21, 2006. He describes her as “not doing too good”. Her
range of motion remained restricted in her lower back, while she had some
improvement in her neck and shoulder symptoms. Ms. Houston advised Dr. Mawani
that she was sleeping poorly and was having headaches. The plaintiff described
herself as having no energy or drive. Dr. Mawani observed that she was teary. He
was concerned that the plaintiff was developing post traumatic stress disorder
and becoming depressed. He prescribed Effexor for the depression and
recommended physiotherapy.

[36]       
Dr. Mawani last examined Ms. Houston in June 2006. He found at that time
that the range of motion in her lower back remained quite restricted although
she had a full range of motion in her neck. He was concerned that the plaintiff
was suffering from anxiety and depression.

[37]       
Dr. Mawani states that the plaintiff had consulted him in late 2003 and
early 2004 when she was 15 or 16. Ms. Houston told him that she had been
sexually assaulted at age 13, and Dr. Mawani’s notes say that there may have
been a second assault later. Dr. Mawani considered that the plaintiff was
depressed and had an adjustment disorder. He prescribed Effexor and suggested
counselling. Dr. Mawani saw her concerning her mood in March 2004. She did not
report any further issues with her mood and Dr. Mawani did not observe any
problems with her mood before the accident.

Dr. David Dutchman

[38]       
Dr. David Dutchman became the plaintiff’s family physician when she
moved to Okanagan Falls in 2007. Dr. Dutchman examined the plaintiff almost two
years after the accident, in his office on January 16, 2008. He found that the
plaintiff had reduction in the range of motion in her low back and that she
expressed pain and demonstrated stiffness. He referred her to a CT scan of her
lumbar spine. Following the scan, Dr. Dutchman states that the CT scan showed “broad
based disc bulge that was obstructing and minimally indents the thecal sac at
L4-5 with a small posterocentral disc protrusion.” It is Dr. Dutchman’s opinion
that the disc protrusion was caused by the accident and that it is the result of
a significant trauma to the plaintiff’s spine. He says that it is uncommon for
a person of Ms. Houston’s age to have a disc protrusion.

[39]       
Dr. Dutchman opines in his report of January 23, 2008 that Ms. Houston’s
back pain would likely continue and her pain and discomfort are likely
permanent “since after two years, there has been no natural resolution.”  He is
also of the view that as a result of the constant pain and discomfort that the
plaintiff suffered and the restriction and changes she has had to make
regarding her lifestyle, the plaintiff has become quite tearful and depressed. He
states, “she has had a significant impairment to the overall quality of her
life.”

Dr. Maryana Apel

[40]       
Dr. Apel was retained by plaintiff’s counsel to assess the plaintiff
within the field of physiatry on October 17, 2008. She summarises her
diagnostic conclusion regarding the plaintiff’s injury in her report:

1.       
Mechanical low back pain localized to the lumbosacral junction with
features of discogenic pain, pain involving the posterior vertebral elements
(sacroiliac joints) worse on the left side. Dr. Apel opines that Ms. Houston’s
lower back pain is consistent with the CT evidence of discogenic abnormality,
left sided disc changes with mild compression. She concludes that that there is
a “significant correlation between radiological structural and clinical
symptoms.” She states that secondary pain affects the sacroiliac and myofascial
structures likely aggravating ongoing symptoms even more in a reciprocal
fashion.

2.       
Chronic myofascial pain in the upper back, shoulders and neck area.

3.       
Mechanical mid-back pain involving paraspinal muscles, worse on the
left.

4.       
Dr. Apel identifies that the plaintiff was suffering from depression.

[41]       
It is Dr. Apel’s opinion that the accident was the cause of all of the
plaintiff’s injuries. She concludes that Ms. Houston is significantly disabled
and it was unlikely that she will make a full recovery. She will have
continuing limitations on her recreational and vocational activities. Dr. Apel
opines that there may be a risk of future surgery but the surgery would not
likely result in a cure. In cross-examination, Dr. Apel stated that surgery for
chronic low back pain does not have very good or very predictable results, and
that surgery can have certain complications itself.

[42]       
Dr. Apel gave evidence that Ms. Houston’s trigger points in her upper
back and neck: three trigger points in the upper trapezius. She found several
trigger points in nearby muscles. Dr. Apel concludes that Ms. Houston’s pain
and discomfort in her upper back and neck are from the muscles, not discs or
ligaments. With regard to the low back, she states that the pain affecting the
low back was a mechanical mechanism involving the nerves around the back,
vertebrae, ligaments and muscles.

[43]       
Dr. Apel was asked to comment on the evidence of the defendants’ medical
witness, Dr. Keith Christian, an orthopaedic surgeon. Particularly, she
disagrees with Dr. Christian’s opinion that the plaintiff’s prognosis is
favourable. Dr. Apel points out that when the problem is chronic it is less
likely that there will be a resolution to the pain. She states that the actual
abnormalities in the disc and vertebral spine are consistent with the clinical
findings. Dr. Apel also disagrees with Dr. Christian’s statement that Ms.
Houston would not experience difficulty pursuing work related or vocational
abilities. She considers that Dr. Christian’s view that the plaintiff would not
experience difficulties is too general a statement. Any job that requires the
plaintiff to lift, stand for a long time, especially on hard ground, or any
activity that requires sitting for a long time or bending forward would produce
additional pain.

Dr. Keith Christian

[44]       
Dr. Christian, an orthopaedic surgeon, assessed the plaintiff on behalf
of the defence on August 20, 2009. He performed a physical examination of the
plaintiff. He concludes that the plaintiff demonstrated signs of “illness
behaviour.”  He explains that she “showed a lot of pain with certain movements
and seemed to overreact somewhat” when he examined her. He states that some of
Waddell’s Signs of non-organic spinal disease were apparent. He considers that
the plaintiff was able to sit comfortably for 30 minutes during her interview,
her gait pattern was normal, she could heel and toe walk normally. He found her
range of motion of the cervical spine to be “quite restricted” as was her
lateral fluxion. She was also tender in the lower cervical area, particularly
in the midline. Her range of motion in the thoracolumbar spine was quite
restricted. When she flexed forward she could barely get her fingertips to her
knees. Her hyperextension of lateral fluxion was equally restricted. He noted
that palpation of her thoracolumbar spine “revealed very definite tenderness
more so in the lumbosacral junction area. Pressure here reproduces some of the
pain in which she complains of.”

[45]       
Dr. Christian explains in his evidence that Waddell Signs are intended
to enable the clinical observer to assess whether or not the patient has spinal
disease or non-organic or physiological spinal problems. One of the tests is to
ask the patient to put this or her hands on the top of their head and push
down. The test should not elicit pain. Dr. Christian states that “no matter how
much pathology the patient has in the cervical spine, the thoracic spine or the
lumbar spine, that should not be painful. If the patient complains of pain,
this may signify non-organic spinal disease.”

[46]       
In his report dated August 24, 2009, Dr. Christian considers that Ms.
Houston had a soft tissue injury of her cervical and lumbar spines. He notes
that the cervical area has settled down without any residual problems but the
plaintiff has residual discomfort in her lower back, which appears to be an
ongoing problem.

[47]       
Dr. Christian continues:

The diagnosis here is that of mechanical back pain. This is a
common complaint seen in a rather high proportion of the population. Back pain
coming on after this type of soft tissue injury can persist for varying lengths
of time. Some people experience symptoms for a number of years but symptoms
usually eventually resolve and are not disabling. The question at this time is
to determine how much of her present symptoms could be related to the motor
vehicle accident… and how much could be contributed to other factors. It is
noted that this lady became pregnant a few months after the injury and she
states that her pregnancy was plagued with back pain. Back pain is a common
association with pregnancy and whether or not this could have been influenced
by the motor vehicle accident is hard to assess.

The normal history of mechanical
back pain is that it tends to be episodic, tending to have exasperation and
remissions, not necessarily precipitated by traumatic episodes.

[48]       
Dr. Christian is of the view that the CT report, which indicates a disc
protrusion at L4-5 and L5-S1 levels, is unrelated to the accident. He notes
that the incidents of disc protrusion in the asymptomatic population are quite
high and it is unlikely that the feature would have been caused by the
accident.

[49]       
Dr. Christian expects a satisfactory resolution of the plaintiff’s
symptoms though optimum recovery may be sometime in the future. He considers
that the plaintiff should not experience difficulties in pursuing work related
or avocational activities. Neither does he expect the recurrence of the injury
to cause or accelerate any arthritic or degenerative problems in the
plaintiff’s later life.

Dr. Roy O’Shaughnessy

[50]       
Dr. O’Shaughnessy is a psychiatrist who was retained by plaintiff’s
counsel to do a psychiatric assessment of the plaintiff to determine if she
suffered any psychiatric damages as a result of the accident. Dr. O’Shaughnessy
assessed Ms. Houston on June 2, 2009. He also reviewed several of the clinical
records and medical opinions. Dr. O’Shaughnessy opines that diagnostically, the
plaintiff met the threshold criteria for major depressive order, pain disorder,
anxiety disorder (sub-threshold post traumatic stress disorder) in partial
remission. He considers that from the data available, the disorders were
triggered by and connected to the accident- related trauma and the actual
physical injuries. Dr. O’Shaughnessy considers other “pre-accident
vulnerability issues” and “contributing factors psychosocially following the accident”
such as the plaintiff’s unplanned pregnancy and deteriorating relationship with
James Bosley, as well as the physical demands of raising a child “intersected
with her complaints of low back pain to aggravate same.” In spite of those
other issues and factors, Dr. O’Shaughnessy opines, “it is more likely than not
that the mood disorder and pain disorder were directly caused by the trauma of
the accident in terms of its emotional consequences and physical injuries.”

[51]       
Dr. O’Shaughnessy expresses concern that as of June 2009, Ms. Houston
was undertreated both physically and psychologically. She was de-conditioned
and unmotivated. Psychologically, she required a more organized and formal
intervention including medication and psychological counselling.

[52]       
In his evidence, Dr. O’Shaughnessy testifies that although a young woman,
Ms. Houston is not engaged in any activities and appears to have no passion for
life and no interests. Her day-to-day activities are very narrow; she rarely leaves
her home and rarely goes out. As a 21 year old (the age the plaintiff was when
she was assessed by Dr. O’Shaughnessy), she should be going out with friends
and developing her identity and her interests and her future. The plaintiff is
failing to do that. He considers that her pain disorder and altered life style
and altered thinking patterns are going to affect her development and her
trajectory. These chronic patterns of dysfunction will be very challenging to
change in the future. She is disabled psychologically in that she has had
problems with work, relationships, and psychological problems. Dr.
O’Shaughnessy expresses guarded optimism for the resolution of the plaintiff’s
psychiatric disorders. It depends on her receiving the treatment he suggests,
including antidepressant medication and consistent and continuing psychological
counselling.

Dr. Kulwant Riar

[53]       
The plaintiff was referred to Dr. Riar for a psychiatric assessment by
the defendants on May 6, 2009. Dr. Riar diagnosed Ms. Houston’s symptoms as an
adjustment disorder with anxious and depressed moods. He considered that at the
time of the interview, the plaintiff had a mild degree of symptoms, which Dr.
Riar believes was the source of her irritability, frustration and problems with
forgetfulness and concentration. Dr. Riar is of the view that the accident was
most likely responsible for the aches and pains and that her ongoing
psychological and psychiatric symptoms were significantly influencing her pain
and its perception. He considers that the accident and other stressors
including the unexpected pregnancy, difficulties with James Bosley and their
ultimate breakup all played a significant role in bringing on and maintaining
the symptoms of anxiety and depression. He considers that the plaintiff’s
possible anxiety and depressive symptoms in 2004 when Dr. Mawani prescribed
antidepressant medication demonstrates that the plaintiff has vulnerability for
a relapse of the illness in stressful situations.

[54]       
Dr. Riar considers that Ms. Houston should be referred to a psychiatrist
who can prescribe medication and provide psychotherapy.

[55]       
Dr. Riar opines that Ms. Houston is not disabled due to psychiatric
reasons and should recover within six months of his assessment although that is
a guarded prognosis. He also has a guarded prognosis in the long term and
considers that Ms. Houston will suffer symptoms of anxiety and depression in
the future under stressful situations. Dr. Riar is of the view that this has
little to do with the accident, and more to do with her constitutional
vulnerability.

Functional Capacity Evidence

Janet Hunt

[56]       
Janet Hunt, an occupational therapist, provided a work capacity
evaluation on behalf of the plaintiff. She confirms the plaintiff’s reports of
difficulty sustaining part-time employment as a cashier due to limitations in
strength and handling and reduced tolerance for standing and bending. Ms. Hunt
also considers that Ms. Houston currently has a significant reduced sitting
tolerance which would likely limit her pursuing studies, even on a part-time
basis. Ms. Hunt concludes that Ms. Houston does not meet the full range of
strength demands for an x-ray technician partly due to her standing and walking
restrictions.

[57]       
Ms. Hunt, in her testimony, explains that while some of the effort tests
conducted on Ms. Houston show a variable effort, that does not mean that the
whole evaluation ought to be disregarded. Ms. Hunt explains that you must look
at the area of injury and whether the lack of effort is consistent with that
area of injury. While an evaluator will note the results of the effort testing
and variable effort particularly, it can be ascribed to many factors including
a depressed mood, high level of pain, fear of pain, and fatigue, for example.

[58]       
Ms. Hunt opines that Ms. Houston’s physical capacity is not based only
on the formal results of the tests which Ms. Hunt administered. It is an
opinion based on the evaluator’s clinical observations, clinical impressions,
knowledge and experience as well.

[59]       
Ms. Hunt also prepared a cost of future care report, in which she
recommends:

1.           
Ms. Houston participate in a multi-disciplinary rehabilitation program;

2.           
Ms. Houston have the assistance of an occupational therapist for case
management in addition to the chronic pain program;

3.           
Ms. Houston be provided with a fitness pass that provides daycare;

4.           
Ms. Houston receive three physiotherapy visits per year to address the
aggravation of symptoms;

5.           
Ms. Houston receive psychological counselling; and

6.           
Ms. Houston receive vocational counselling.

[60]       
Ms. Hunt also recommends that Ms. Houston receive assistance for house
cleaning and house maintenance services, childcare, equipment, orthotics, and
medication.

Jodi Fischer

[61]       
Ms. Fischer was retained by the defence to provide a rebuttal report to
Ms. Hunt’s report. She is also an occupational therapist qualified to practice
within British Columbia. Ms. Fischer did not examine the plaintiff nor did she
perform a functional capacity evaluation. Her task was to review the
methodology and conclusions described in Janet Hunt’s report. Ms. Fischer
reviewed Ms. Hunt’s report, but did not review any other medical reports. Ms.
Fischer addresses the effort tests, and comments on those which described
variable effort. She agrees that there were no examples of low effort. Ms.
Fischer states that she agrees that Ms. Houston has limitations and some level
of disability, but the evaluation raises the question about the level of
disability and how extensive it is. Ms. Fischer agrees that clinical
observations are important in the preparation of an evaluation. She also agrees
that pain can affect effort, particularly if the pain presentation correlates
to the injury.

Carol Talley

[62]       
Ms. Talley is also an occupational therapist. On behalf of the
defendants, she reviewed the medical reports and the functional capacity report
of Janet Hunt. She concurs with Ms. Hunt’s opinion that a chronic pain program
is indicated to complete three home visits to review the ergonomics of
housekeeping and childcare. She also recommends a multi-disciplinary program. She
agrees that Ms. Houston should have a fitness pass to a local fitness program
that provides daycare. She also agrees that three visits per year to a
physiotherapist is indicated. Ms. Talley concurs with Ms. Hunt’s recommendation
for psychological sessions of counselling, as well as vocational counselling. Ms.
Talley does not support the provision of housekeeping and other associated
services ought to be provided. Ms. Talley agrees that the plaintiff should be
awarded an amount for childcare expenses at least while she attends the chronic
pain program.

[63]       
Ms. Talley supports the provision of ergonomic equipment for the home
and for work, a heating pad and orthotics.

Discussion and Analysis

[64]       
Before quantifying the plaintiff’s loss, I will analyze the evidence in
regard to these particular matters:

1.    the credibility
of the plaintiff and other witnesses;

2.    the differing
medical opinions between Drs. Apel and Christian; and Drs. O’Shaughnessy and
Riar; and

3.    the functional
capacity opinions of occupational therapists Hunt and Fischer; and Hunt and
Talley.

The credibility of the plaintiff and other witnesses

[65]       
The defendants maintain that Ms. Houston is not a credible witness. They
point to the evidence of the plaintiff’s former employers. They assert that Ms.
Russo was not aware that the plaintiff had been in a motor vehicle accident and
she did not observe any signs that the plaintiff was suffering from any pain or
disability. Mr. Park described the job the plaintiff had at Sims Grocery as
cashier, shelf stocking and cleaning after the store closed. He was unaware of
anyone assisting the plaintiff in those duties. He knew nothing about the
accident and understood that the plaintiff left her employment to return to
Vancouver. The manager of the Loonie Plus store does not recall the plaintiff at
all but says that there were no problems with her employment and that she
resigned for maternity reasons.

[66]       
The defendants refer to the other lay witnesses who gave evidence and suggest
that their evidence ought to be preferred over that of the plaintiff in
circumstances where the evidence conflicts.

[67]       
Particularly, the defendants argue that Chelsea Ridyard was a forthright
and honest witness. Her evidence about the plaintiff intending to “milk”  the
accident for anything she would get, her engaging in exercises after the
accident and after the birth of her daughter and reduced eating, and the fact
that it is Chelsea Ridyard that suffers from driving anxiety, rather than the
plaintiff, is to be given preference. The defendants submit that Carly
Ridyard’s evidence was forthright and honest and demonstrates that the
plaintiff was able to do more than she maintained in her evidence in court.

[68]       
The property manager at her Port Moody apartment, Suzanne Scott, gave
evidence that Ms. Houston’s current boyfriend, Robin Bowles, moved in shortly
after James Bosley moved out. The defence argues that her evidence should be
preferred over that of the plaintiff who said that Robin Bowles did not move
into her residence, nor was she spending significant amounts of time with him
within a few weeks Mr. Bosley had moved out and that she did not begin a
relationship with Mr. Bowles until the summer of 2009.

[69]       
The defendants also argue that there are aspects of the plaintiff’s
evidence which go to her honesty: her employment insurance application for
maternity benefits does not mention her injury. She gave evidence about the
debilitating effects of her attendance at Karp Rehabilitation, but after her
first visit she attended a tanning salon and appeared at a bar on the same
night. Mr. Danyer’s evidence in that regard should be accepted.

[70]       
The defence also argues that an adverse inference should be attributed
to the plaintiff. The plaintiff only called her mother and father as witnesses;
she did not call Mr. Bosley or Mr. Bowles, with whom she had relationships.
They could provide evidence regarding the plaintiff’s emotional state and her
ability to form and maintain relationships. The evidence of Mr. Bowles would
have addressed the evidence when he moved in with the plaintiff and whether he
and the plaintiff began their relationship soon after the plaintiff’s
relationship with Mr. Bosley ended.

[71]       
In regard to the adverse inference, the defendants refer to Bronson
v. Hewitt, 2010 BCSC 169 at para. 323:

 The plaintiffs submit that the court should draw
an adverse inference against both Eugene and Howard from Eugene’s failure to
testify at trial. They submit that given Eugene’s role in these proceedings,
his evidence is crucial in regard to several matters at issue. In support of
their submission, they cite Sopinka, S.N. Lederman and A.W. Bryant, The Law
of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) where the
authors state at 297:

In civil cases, an unfavourable inference can be drawn when,
in the absence of an explanation, a party litigant does not testify, or fails
to provide affidavit evidence on an application, or fails to call a witness who
would have knowledge of the facts and would be assumed to be willing to assist
that party. In the same vein, an adverse inference may be drawn against a party
who does not call a material witness over whom he or she has exclusive control
and does not explain it away. Such failure amounts to an implied admission that
the evidence of the absent witness would be contrary to the party’s case, or at
least would not support it.

[72]       
The defendants also refer to Moini v. Jude, [1996] B.C.J. No.
1296, where the court, at para. 17, drew an adverse inference against the
plaintiff for failing to call his business partner who would be in a position
to provide evidence concerning the plaintiff’s claim for pain and suffering and
concerning the income loss which the plaintiff asserted that he indirectly
suffered as a result of his incapacity.

[73]       
The plaintiff asserts that the aspects of the plaintiff’s testimony to
which the defence refers, including her employment insurance application and
her activities of tanning and attending a dance club after attending Karp
Rehabilitation are items of evidence which do not amount to anything. The
plaintiff is not an invalid. The medical evidence says that she experiences
significant pain. The plaintiff has not asserted that she is unable to go out
or that she was applying for employment insurance to cover illness.

[74]       
In respect of the defence witnesses, the plaintiff argues that the
employers considered that the plaintiff did a good job and was trustworthy.
None had much of an opportunity to observe her, and their recollections of her
and her activities were weak. The evidence of Suzanne Scott, Chelsea and Carly
Ridyard confirmed the evidence of the plaintiff. The Ridyard sisters were
hostile towards Ms. Houston but did confirm that she was physically fit and
active before the accident. They also confirmed that after the accident Ms. Houston’s
activities became non-existent. They confirmed that Ms. Houston experienced
increased back pain and she was not the “same person” they knew before the
accident. Mr. Danyer made objective findings of a restricted range of motion in
the plaintiff’s neck, upper and lower back, and observed behaviours in Ms.
Houston which showed she was in significant pain. He considered the plaintiff
to be pain focused, which is consistent with the plaintiff having a pain
disorder.

[75]       
In respect of the defendants’ assertion that an adverse inference should
be drawn against the plaintiff for failing to call material witnesses, the
plaintiff asserts that the evidence concerning the plaintiff’s relationship
with Robin Bowles is irrelevant: the plaintiff is not denying that she has a
relationship with Robin Bowles, nor is she suggesting that relationships are
something that she cannot accommodate. Regarding the plaintiff not calling Mr.
Bosley as a witness, there is evidence that she and Mr. Bosley are engaged in a
family dispute and he is likely a hostile witness. Even so, his evidence could
only go to the difference in the plaintiff before the accident and after
which was covered by the plaintiff’s witnesses and the Ridyard sisters; the
effect of the accident on the plaintiff’s employment which was covered by the
plaintiff’s evidence; the medical evidence concerning the plaintiff’s ability
to care for her child; her and her father’s evidence about the plaintiff’s
ability to perform housekeeping duties; and the impact of the plaintiff’s
injuries on her relationships, all of which was not challenged in
cross-examination.

[76]       
This is also addressed in Bronson at para. 329: “the notion
of adverse inference is related to the best evidence rule. The inference should
only be drawn in regard to the non-production of witnesses whose testimony
would be superior in respect of the facts to be proved.”

[77]       
I find the plaintiff to be credible. Her evidence is supported by her
family members, and is also supported by the medical and functional capacity experts.
Her employer witnesses do not suggest that the plaintiff is exaggerating her
symptoms, and none of the other defence witnesses persuade me that the
plaintiff is not credible.

[78]       
I decline to find an adverse interference against the plaintiff for
failing to call Mr. Bosley or Mr. Bowles. I cannot conclude that their evidence
would be superior to that of the witnesses that she did call. Further, the
plaintiff did not have exclusive control over either of these potential
witnesses. The defence could have called them as witnesses and ensured their
attendance by serving them with subpoenas.

[79]       
I wish to specifically address the defendants’ calling of the Ridyard
sisters. Both these witnesses refused to discuss their evidence with
plaintiff’s counsel before the trial. The plaintiff had to undertake pre-trial
examinations of both of them under Rule 28. Chelsea Ridyard did not avail
herself for service of the appointment and I made an order for substitutional
service.

[80]       
I did not find either witness to be forthright and honest; I found them
to be immature and malicious. Carly Ridyard said she did not like the plaintiff
and the plaintiff was not the sort of person that she wanted to be friends with
because they had a dispute over babysitting and because she perceived that the
plaintiff mistreated her cousin James Bosley. Chelsea Ridyard said almost the
same thing:  the plaintiff was not the kind of person that she wanted to “hang
out with.” The attitudes of the Ridyard sisters, and their basis for disliking
the plaintiff are not relevant to the issues in this case. It appeared that
their dislike of the plaintiff was their entire motivation in giving evidence.
Their behaviour put the Court in the position of arbiter in a childish
melodrama. With respect, it would have served the defendants to assess these
witnesses’ motivation and their specific evidence before putting the plaintiff
to the trouble and expense of obtaining their evidence under Rule 28 and
calling them as witnesses.

[81]       
Finally, and to be clear, I do not find that Ridyard sisters’ evidence
to be convincing, nor does it support a finding that the plaintiff is
exaggerating the extent, severity and duration of her injuries.

Differing Medical Opinions

Drs. Apel and Christian

[82]       
The areas of disagreement between Drs. Apel and Christian include the
plaintiff’s prognosis; the difficulties the plaintiff may or may not have
pursuing work-related or vocational ability, the import of the Waddell Signs and
the source of the mechanical back pain.

[83]       
The defendants assert that Dr. Apel was inclined to hyperbole. For
example, she stated at page 9 of her report that Waddell Signs were “strongly”
negative.” The defendants assert that they are either present or not. Dr. Apel
described “aggravated” distress from pain and that the plaintiff was a “significantly”
depressed individual. Further, the defendants assert, Dr. Apel backed away from
her conclusion that surgical intervention might be necessary in the future in
cross-examination where she agreed that neither Dr. Dutchman nor Dr. Christian
felt that surgery was indicated.

[84]       
The plaintiff argues, in regard to Dr. Christian, that he agreed that
the longer a person suffers from chronic pain the more likely it is that they
will not recover. He expected that the plaintiff will have exacerbation or pain
and discomfort from time to time and she should avoid engaging in activity that
bothers her back. The plaintiff asserts that Dr. Christian formulated his
opinion based on the mistaken fact that the plaintiff did not initially have
low back pain and restricted range of motion following the accident. Those are
factual conclusions which are wrong. Dr. Christian claims that Ms. Houston told
him that she did not have pain immediately after the accident. The plaintiff
denies this. Dr. Christian destroyed his notes after he prepared his report. For
these reasons, the plaintiff’s evidence about the onset of pain and restriction
of movement after the accident should be preferred.

[85]       
The plaintiff also argues that Dr. Christian’s view concerning whether
Ms. Houston’s disc protrusions as shown on the CT scan arose because of the
motor vehicle accident is not valid. He based his view on his conclusion that since
the prevalence of disc protrusions in the asymptomatic population is
statistically high, the disc protrusions could not be attributed to the motor
vehicle accident. The plaintiff asserts that this is a statistical conclusion,
but not a clinical conclusion.

[86]       
Where Dr. Christian’s assumptions of the facts and the plaintiff’s
evidence conflict, I accept the plaintiff’s evidence. It would be odd that the
plaintiff would maintain to Dr. Christian, but not to any of her other physicians
that the back pain and restriction on motion occurred some months after the
accident when she became pregnant.

[87]       
I also note that Dr. Christian provided a generally optimistic report
following his examination of the plaintiff, describing Ms. Houston’s prognosis
as favourable and opining that her injuries would not affect her ability to
work. In cross-examination, he agreed with plaintiff’s counsel that the longer
a person suffers from chronic pain, the more likely it is that she will not
recover, and exacerbation of her pain and discomfort means that the plaintiff
should avoid activities that bother her back. As that is the case, the injuries
do limit the plaintiff’s future employability.

[88]       
Dr. Christian’s conclusion from the Waddell Signs is directly opposite
to that of Dr. Apel. The finding of a positive Waddell Signs is not
determinative. Dr. Christian suggests that it demonstrates “a tendency to
overreact” and suggests that the plaintiff’s complaints are subjective and
self-reported. While the court must be careful in assessing injuries for which
there is little or no objective evidence, a positive Waddell Signs observed by
one physician on one occasion is not a sufficient basis to reject the weight of
the medical opinion, including that of Dr. Christian in cross-examination,
which supports the plaintiff’s description of pain and restriction of movement.

[89]       
In respect of the plaintiff’s experience of back pain and the disc
protrusions observed in the CT scan, I do not accept Dr. Christian’s view that these
are not related to the motor vehicle accident on the basis that mechanical back
pain is a common complaint “seen in a rather high proportion of the population.”
Dr. Christian suggests that the plaintiff’s pregnancy may have been the source
of her back pain. Dr. Christian further opines that “the incidents of disc
protrusion in the asymptomatic population [are] quite high.” On that basis, Dr.
Christian stated that “the radiological finding is unrelated to the accident
and not likely causing symptoms.” Dr. Christian does not provide the statistical
basis for such a conclusion. He does not address the prevalence of back pain in
young, previously healthy and active females. Without such an analysis of the
statistics, I accept that the plaintiff’s back pain is related to the motor
vehicle accident. The explanation that the back pain is associated with
pregnancy is nullified by the fact that the plaintiff had low back pain before
she became pregnant and after her daughter was born.

[90]       
For these reasons, I reject Dr. Christian’s conclusions that the
plaintiff’s low back pain is unrelated to the motor vehicle accident.

Drs. O’Shaughnessy and Riar

[91]       
The plaintiff asserts that the reports of Drs. O’Shaughnessy and Riar
are generally consistent. Dr. Riar labelled things differently, but both he and
Dr. O’Shaughnessy were discussing the same thing. As an example, the plaintiff
points out that Dr. Riar referred to Ms. Houston having “chronic pain.”  Dr.
O’Shaughnessy said that she was suffering from “pain disorder.”

[92]       
The plaintiff points out that both psychiatrists agreed that the plaintiff
needed psychiatric treatment or her condition could become chronic. The
treatment recommended by both was psychological counselling and anti-depressant
medication. Both psychiatrists were of the view that the accident was the cause
of the plaintiff’s depressed moods and anxiety symptoms. Dr. Riar merely
emphasized the plaintiff’s vulnerability to suffer from a psychiatric disorder,
which was contributed to by life events.

[93]       
The defendants argue that Dr. Riar opined that the plaintiff’s long-term
prognosis was guarded as she would suffer symptoms of anxiety or depression in
the future under stressful situations, but it had little to do with the
accident and more to do with her constitutional vulnerability. Dr. Riar also
opined that once the plaintiff’s anxiety and depression improved, she would
have a significant improvement in her aches and pains and her ability to deal
with residual pain.

[94]       
I agree with the plaintiff that the doctors’ opinions accord with one
another. Both are of the view that the plaintiff requires treatment including
psychological counselling, and anti-depressant medication. Both say that with
the appropriate treatment, they expect the plaintiff’s psychiatric condition to
improve. While Dr. Riar emphasizes the plaintiff’s vulnerability to depression
and anxiety, he agreed with Dr. O’Shaughnessy that the accident caused the
plaintiff’s problems, which were exacerbated by the events including her
unplanned pregnancy, her break-up with James Bosley, and other stressors.

[95]       
The evidence is clear that the plaintiff was a fully functioning
individual who was not burdened by depression or anxiety before the accident.
The evidence is also clear that the plaintiff’s attitude and outlook changed
after the accident: she became more insular and isolated.

Differing Occupational Therapists Opinions

Occupational Therapists Hunt and Fisher

[96]       
The plaintiff points out that Ms. Hunt was in a better position to
assess Ms. Houston’s physical capability. Her opinions were based on the formal
results of the tests she administered and her clinical observation,
impressions, knowledge and experience. Ms. Fischer did not have the same
opportunity. She did not examine Ms. Houston and she did not review all of the
relevant medical evidence. She only reviewed Ms. Hunt’s report and considered
that there was some evidence of low effort or variable effort on Ms. Houston’s
part in the formal testing. The plaintiff says that Ms. Hunt addressed that in
her conclusions.

[97]       
The defendants say that Ms. Fischer’s conclusion that there was
insufficient effort given by the plaintiff means that the report of Ms. Hunt is
not useful, and cannot be the basis of any conclusions regarding the
plaintiff’s capacity.

[98]       
I agree with the plaintiff that Ms. Hunt was in the best position to
assess the plaintiff’s physical capacity. Ms. Fischer had limited information,
only Ms. Hunt’s report, and no other medical report. She did not have the
opportunity to assess Ms. Houston from an occupational therapist’s perspective.
While Ms. Fischer did address the plaintiff’s effort on some of the testing,
Ms. Hunt was aware that the plaintiff’s test results demonstrated some variable
effort. Ms. Hunt addressed that in her evidence when she explained that a
variability in the effort does not impugn the whole evaluation. It is important
to address whether the areas of variable effort are related to the injuries
including the pain, fatigue and mood issues.

Occupational Therapists Hunt and Talley

[99]       
The plaintiff points out that Ms. Hunt and Ms. Talley address the same
requirements, including the need of a multi-disciplinary rehabilitation
program, occupational therapy, fitness passes, physiotherapy, counselling,
vocational counselling and other services. Ms. Hunt includes services which
will be required if the plaintiff has another child.

[100]     The areas
of dispute between these experts is the cost of medication and the loss of
homemaking capacity. The plaintiff asserts that the evidence demonstrates that
Ms. Houston will require medication based on an award of $250 per year. She
will also require home-making services to do heavier chores in the household
and childcare assistance.

[101]     The
defendants assert that the services which are recommended in Ms. Talley’s
report reflect a one-time cost with the exception of physiotherapy which should
amount to three visits per year. If the therapy is effective, which the doctors
project, the plaintiff’s need for physiotherapy or other forms of therapy will
not continue indefinitely.

[102]     In my view
the reconciliation of the evidence between physiotherapists Hunt and Talley are
matters of quantum. I will therefore address these differences when I consider
the plaintiff’s claim for future care costs.

Assessment of Damages

Non-pecuniary damages

[103]    
In Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, the
court discusses the assessment of non-pecuniary injuries. At para. 46 the court
states:

The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a)     age of the plaintiff;

(b)     nature of the injury;

(c)     severity and duration of
pain;

(d)     disability;

(e)     emotional suffering; and

(f)     loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g)     impairment of family,
marital and social relationships;

(h)     impairment of physical and
mental abilities;

(i)      loss of lifestyle; and

(j)      the plaintiff’s stoicism (as a factor that should
not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163, 2005 BCCA 54).

[104]     The
plaintiff is now 22. She was 18 at the time of the injury. As a result of the
injuries, the plaintiff continues to suffer activity related pain and
discomfort in her neck and upper back and constant chronic pain in her low back.
The medical experts anticipate that this chronic pain will continue for the
rest of her life. The plaintiff also suffers psychological injuries including a
major depression disorder, pain disorder and anxiety disorder (post traumatic
stress disorder in partial remission). The psychiatrists consider that with
appropriate medication and counselling, the prognosis is favourable, but
obviously uncertain.

[105]     All of the
witnesses describe the injuries as having a profound impact on the plaintiff’s
life. She was vibrant, active and energetic, an accomplished athlete and
windsurfer. Now she is not. Her injuries have affected her relationships. Her
relationship with her daughter is severely impacted. Though she has a capacity
to lift and carry her, the plaintiff’s injuries interfered with her abilities
to comfortably nurse her child. They continue to interferer: the plaintiff
expresses the loss of her ability to parent her child including the ability to
be physically active with Kathleen.

[106]     The
plaintiff has provided a series of case authorities that are comparable to the
plaintiff’s circumstances where the courts have awarded non-pecuniary damages
ranging from $85,000 to $125,000.

[107]     The defendants
assert, based on their theory that the plaintiff has exaggerated her injuries,
that $35,000 is an appropriate award for non-pecuniary damages based on what
they describe as the “totality of the evidence that the plaintiff’s injuries
were not as severe nor prolonged, and though the plaintiff has some lingering
complaints with the potential for flare up she is a good candidate for
treatment and therapy.”

[108]     Based on
my analysis of the evidence, and my conclusion that the plaintiff’s injuries
are as she and the medical experts described them, I find that the range
suggested by the plaintiff is appropriate. Having reviewed the cases provided,
I award the plaintiff $110,000 for non-pecuniary loss.

Past wage loss

[109]     The
plaintiff demonstrated that she attempted to work at a number of different jobs
which she found she could not sustain because of her injuries. She also became
pregnant and was on maternity leave from January 2007. She did attempt to
return to work following the maternity leave at Sims Grocery.

[110]     The
plaintiff has demonstrated that she was able to obtain a position as a cashier
with relative ease. She asserts that if she had not suffered injuries in the accident
that have been the source of chronic pain, she would have worked in that
capacity after the accident and before March 2007 (Kathleen’s birth) and from
February 2008 to the date of trial on a full-time or part-time basis.

[111]     The
defendants assert that because the plaintiff was only 18 when the accident
occurred and because she had not completed her grade 12, it is difficult for
the court to determine what her past work regime would have reflected. Her work
history showed an intermittent pattern and this should be the basis for
determining the plaintiff’s past wage loss.

[112]     Based on
the expert report of Rob Carson from Associated Economic Consultants Ltd.,
cashiers earn an average of $25,620 per year plus benefits of about 10 percent
of that amount for a total of $28,182.

[113]     Based on
the plaintiff’s evidence about her connection to the work force, I find that
her wage loss from the date of the accident, February 2, 2006 to the
commencement of her maternity leave in January 2007 should be assessed at
$25,800 (based on 11 months of work). The plaintiff was on maternity leave for
approximately one year, until February 2008. Had she not been suffering from
the injuries sustained in the motor vehicle accident she could have returned to
work as a cashier to the date of trial (based upon 20 months of work). I find
that she would have worked a combination of both full-time and part-time. The
plaintiff has submitted that an award of $40,000 for past wage loss would be
fair and reasonable; the defendants assert $25,000 as an appropriate sum. I
agree with the plaintiff that $40,000 for past wage loss is reasonable.

Diminished earning capacity

[114]     The
principles which the court must apply in respect of this head of damages has
been outlined in several cases. The principles were reviewed by Madam Justice
Brown in Ruffle v. Canada (Correctional Services), 2007 BCSC 1264 at
paras. 58 to 61. The principles of that case can be distilled as follows:

1.    While past wage
loss must be proven on a balance of probability, future loss requires the court
to be satisfied that there is a real possibility of loss.

2.    Some of the
considerations to be taken into account in assessing the loss include whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment whether the plaintiff is less marketable or attractive
as an employee to potential employers; whether the plaintiff has lost the
ability to take advantage of all job opportunities which otherwise may have
been open had the plaintiff not been injured; and is the plaintiff less
valuable to him or herself as a person capable of earning income in a
competitive labour market.

3.    The most basic
principle is that the plaintiff is entitled to be put in the position she would
have been in but for the accident, insofar as an amount of money can accomplish
that. The award recognizes that the plaintiff’s capacity to earn income is an
asset which has been taken away. It is not projected future earnings that are
compensated but the loss or impairment of earning capacity as a capital asset.

4.    The court must address
the unknowable and consider all possibilities and probabilities chances
opportunities and risks, and assess the weight of each in determining the
award.

5.    The trial judge
must assess the loss, not calculate them according to some mathematical formula.
The award must be fair and reasonable taking into account all relevant evidence.

[115]     In Sinnott
v. Boggs, 2007 BCCA 267, the court considered the future loss of earning
capacity of a plaintiff who was a teenager in high school when she was injured
in a motor vehicle accident. The court commented that because the plaintiff was
a young person who had not established a career or a settled pattern of
employment the quantification of the loss is more at large: at para. 16.

[116]     The
plaintiff submits that the medical evidence supports an award of diminished
earning capacity, including the evidence of Dr. Christian who agreed that the
plaintiff has chronic pain and will have exasperations of pain in the future
and should avoid things like heavy lifting stopping or standing for long
periods. Janet Hunt provided her opinion that Ms. Houston was currently
restricted to part-time light duty work and/or part-time studies. Ms. Tally
says that there is a measurable risk of between 14 to 30 percent that Ms.
Houston will not improve.

[117]     The
plaintiff asserts that the loss of earning capacity should be based on the
plaintiff’s becoming an x-ray technician which she had explored before the
accident. In that position she would earn approximately $70,000 a year
and have a total potential earning capacity of approximately $2,000,000. The plaintiff
asserts that a fair award for future loss would be in the range of $400,000 to
$500,000.

[118]     The
defendants suggest that the medical evidence “does not stretch to a large award
for loss of capacity”. The defendants say that the plaintiff may be susceptible
to flare-ups in the future but that those should abate. The plaintiff should be
compensated for the possibility of time off work occurring in the future and
that an appropriate award is $6,000.00

[119]     I am
satisfied that the plaintiff’s injuries, most particularly their chronic
nature, means that Ms. Houston is less capable overall from earning income from
employment, she is less marketable and attractive to employers, has lost the
ability to take advantage of all job opportunities and is less valuable to
herself as a person earning income in a competitive labour market. As such, she
is entitled to be put in a position she would have been if the accident had not
occurred.

[120]     The
plaintiff has certainly lost her ability to perform physically demanding work or
any work that requires sustained periods of sitting or standing, lifting or
carrying. I accept that the plaintiff had not embarked on a career, given that
she was 18 at the time of the accident. While she expressed a desire to pursue
a career as an x-ray technician, in all the circumstances, I find that that was
an unrealistic goal. Ms. Houston was on a non-academic track when she left high
school before completing grade 12. At the same time I recognize that Ms.
Houston, after Kathleen’s birth, has childcare responsibilities as a single
parent. It is my view that she would have continued with a combination of
full-time and part-time work in the capacity of a cashier until her child was in
school full-time and then that she would have returned to upgrade her
educational background for years which would require her to work part-time.
Following that, I find that possibility would be that she would have earnings
in the $40,000 to $50,000 range. I am satisfied, based upon Robert Carson’s
opinion that the plaintiff’s potential income would be in the range of
$1,200,000.

[121]     Based on
those considerations I assess her loss of future earning capacity as $275,000.

Cost of future care

[122]     Both Ms.
Hunt and Ms. Tally agree that Ms. Houston is in need of a multidisciplinary rehabilitation
program, occupational therapy, fitness passes, physiotherapy, counselling,
vocational counselling and a number of services. The differences between the
occupational therapists are the cost of medication and the loss of homemaking
capacity.

[123]     The
plaintiff submits that the evidence establishes that she will require pain
control into the future. A cost of medication at $250 per year has a present
value of $6,500 to age 65. The plaintiff also says that the evidence
establishes that Ms. Houston will struggle with housekeeping and will require
assistance for heavier chores. Based on $1,500 per year for the cost of
homemaking, the present value is $38,940 until Ms. Houston is 65 years old. The
plaintiff also submits that if Ms. Houston chooses to have a second child, her
limitations will require assistance with childcare. She asserts $10,000 for
this purpose is reasonable. The plaintiff claims $54,182 for future care
including medication and $48,940 to compensate specifically the care for
homemaking, yard work and childcare.

[124]     The
defendants submit that $24,000 is appropriate for the cost of care based on the
items recommended in Carol Tally’s opinion.

[125]     I prefer
the opinion of Ms. Hunt to that of Ms. Tally for several reasons. First, Ms.
Hunt personally assessed Ms. Houston on February 18, 2009 and produced a report
based on that assessment dated February 25, 2009. Ms. Hunt had an opportunity
to consider the medical reports which had been prepared. She made certain facts
and assumptions based on those reports including that Ms. Houston was
significantly depressed and that she had engaged in an active rehabilitation
program but did not make any significant functional gains. Ms. Hunt referred to
Dr. Apel’s recommendations including physiotherapy, access, ergonomic
equipment. Ms. Tally did not have an opportunity to assess the plaintiff
personally, her report is prepared based on the future care report of Ms.
Hunt’s. Ms. Tally goes through each of the medical reports and outlines the
various opinions. Significantly, in the area of rehabilitation and counselling,
she agrees with Ms. Hunt’s recommendations. Her opinion related to ongoing
costs, as well as the cost of housekeeping and childcare expenses is based on
her conclusions from Dr. Christian’s report. I have not accepted Dr.
Christian’s report in respect of the cause or continuing nature of the
plaintiff’s symptoms. It would be inconsistent to rely on a report for future
care which relies on a medical opinion that I have rejected.

[126]     I award
$100,000 for future care.

Special damages

[127]     The
parties agree that Ms. Houston’s special damages are $415.72.

Summary

[128]     Based on
the above I award the following damages:

1.    Non-pecuniary                           $110,000

2.    Past wage loss                           $ 
40,000

3.    Diminished
earning capacity   $275,000

4.    Cost of future
care                     $100,000

5.    Special Damages $ 
415.72

 Total                                                   $525,415.72

Costs

[129]    
The parties may wish to make submissions on costs and have leave to do
so in writing or orally.  If there are no submissions, the plaintiff is
entitled to costs at Scale B.

“Gropper J.”

Appendix A

Ruling Concerning Surveillance Evidence

[1]          
During the trial, I ruled on whether the defendants could rely upon
surveillance recordings of the plaintiff and whether they could call the
operatives who made the recordings as witnesses. This is my mid trial ruling of
March 30, 2010.

Background

[2]          
This trial commenced in October 2009 for five days. Because it was not
concluded, it was adjourned on October 30, 2009 to continue on March 29, 2010.

[3]          
During the hiatus, the defendants undertook surveillance of the
plaintiff in two periods, the first between October 30 and November 1, 2009
where investigation operatives recorded the plaintiff’s activities while she
was in the Lower Mainland, (the "weekend video"); and the second
between November 1 and November 6, 2009 when the operatives recorded the
plaintiff’s activities while she was holidaying in Mexico (the "Mexico
video").

[4]          
Counsel for the defendants describes the Mexico video as showing the
plaintiff sitting on the beach and riding an ATV on the beach. He says that
both videos will assist me by providing a comparison of the plaintiff’s
evidence and her courtroom demeanour where she appears to be in pain and have
difficulty moving, with how she appears when she is preparing to go on vacation
and how she appears while on vacation.

[5]          
The defendants wish to call the operatives who observed the activity in
the weekend video, but do not intend to put actual video into evidence. They
wish to call eight or nine witnesses to address the plaintiff’s activities that
are recorded on the Mexico video and enter the video into evidence. The
witnesses’ evidence is intended to clarify items that may not be apparent on
the video.

[6]          
The plaintiff objects to the defendants calling the weekend video
witnesses and to the defendants calling the witnesses to the Mexico video, as
well as putting the Mexico video into evidence, because of their late
disclosure. The Mexico video and notes of the contents of the video were
disclosed by the defence on March 4, 2010, and the weekend video notes were
disclosed on March 23, 2010 and the weekend video on March 26, 2010.

[7]          
The basis of the plaintiff’s objection is that the defendants did not
disclose the existence of the videos on a supplementary list of documents as
required under R. 26(13) for both privileged and non-privileged documents,
and thus the videos are not admissible at trial under R. 24. The plaintiff’s
second assertion is that the defendants did not provide “background materials”
which include the letters of instruction, field notes, details about the
investigators, the investigators’ files, and cameras used to record the videos,
and the editing program used to prepare the DVD and similar information.

[8]          
The third point the plaintiff makes is that the late disclosure of the
videos and the backup material affects the plaintiff’s ability to prepare for
trial and to have the trial concluded in a timely way. She asserts that this
week of trial was anticipated to conclude the trial. If the evidence is
admitted, the plaintiff may have to be recalled, her medical experts may have
to be recalled, and she may have to call other witnesses, which would lengthen
the trial and probably necessitate scheduling further dates to conclude. She
says the prejudicial effect of allowing the videos into evidence outweighs the
probative value.

[9]          
The defendants assert:

1.         The evidence was disclosed before the trial resumed, the
Mexico video as stated by March 4, and while the backup material was not
provided at that time, most of it has been provided and in any event that that
does not affect the admissibility of the video.

2.         While the videos and the notes were prepared and provided to
defendants’ counsel in November 2009, the date of disclosure to plaintiff’s
counsel is a matter of strategy. Defence counsel chose to disclose the video
when he did on that basis.

3.         There was no surprise to the plaintiff. She is the subject
of the video; she engaged in the activities recorded. In other words, she
“lived the evidence.”

4.         The probative value outweighs the prejudicial effect.

5.         The
defence does not intend to produce the weekend video, only the observations of
those who were present during the video recording. Those witnesses are in the
same position as other observational witnesses.

Ruling

Admissibility of the Mexico Video

[10]       
R. 26(13) requires that:

(13)      Where, after a list of documents has been delivered
under this rule

(b)        a document relating to a matter in question in the
action comes into the party’s possession or control,

the party shall deliver forthwith
a supplementary list specifying the inaccuracy or document.

[11]       
The burden on the party seeking to tender the undisclosed document is to
establish to the Court’s satisfaction a reasonable explanation for the failure
to disclose. As Henderson J. stated in Carol v. Gabriel (1997), 14
C.P.C. (4th) 376, 75 A.C.W.S. (3d) 858:

[9]        A party tendering a
previously undisclosed document must establish to the court’s satisfaction a
justification for the failure to abide by Rule 26(14). The question of whether
the opposite party will be prejudiced by the admission of the document is
always relevant but is not, in and of itself, decisive. Even in cases where no
prejudice will ensue from the admission in evidence of the document, it will be
excluded unless there is a reasonable justification for the earlier failure to
disclose it. To hold otherwise would be to dilute the disclosure obligation and
tempt counsel to refrain from disclosing in situations where they do not expect
any prejudice to result.

[12]       
Here, the explanation for the failure to disclose is that the videos are
not documents and they were never in the defendants’ possession or control. Rather,
these videos and the accompanying reports fall clearly within the solicitor’s
brief.

[13]       
The defendants’ position that it is sufficient that the videos and
background materials were disclosed in March 2010, before the recommencement of
the trial does not address the requirement of the Rule in 23(13) that the
disclosure be “forthwith.” Not disclosing, as a matter of strategy, is not a
satisfactory explanation to address the “forthwith” requirement.

[14]       
It is therefore my view that the videos have not been disclosed in
accordance with R. 26(13) and I must therefore consider whether I ought to
exercise my discretion to allow the Mexico video into evidence in accordance
with R. 26(14).

[15]       
The factors to be considered are described by the Court of Appeal in Stone
v. Ellerman, 2009 BCCA 294; 273 B.C.A.C. 126; [2009] 9 W.W.R. 385; 71
C.P.C. (6th) 25; 92 B.C.L.R. (4th) 203; 2009 CarswellBC 1633, at paras. 30 and
31. They are:

1.         prejudice to the party, in this case the plaintiff;

2.         whether there was a reasonable explanation for the other
party’s failure to disclose;

3.         whether excluding the document would prevent a determination
of the issue on the merits; and

4.         whether
in the circumstances of the case the ends of justice require that the document
be admitted.

[16]       
Addressing the prejudice to the plaintiff, it is difficult for me to
assess the prejudice versus the probative value issue as I have not seen the
videos and I have not reviewed the investigators’ notes of the video. I note in
addressing this factor that there were hours of video recorded and the
defendants’ counsel has provided a summary of what is contained in the videos. Based
upon that, I am not satisfied that the videos are sufficiently probative to
outweigh the prejudice to the plaintiff in allowing their admission having not
been disclosed forthwith on a supplementary list of documents. This is despite
the assertion that the plaintiff “lived” the events and that she would not be
surprised by the contents. She has given evidence and called her medical and
functional capacity experts. The late disclosure of the video evidence has
impaired the ability of the plaintiff to meet the evidence.

[17]       
The admission of the videos and notes may require that she be recalled,
or that she recall some of the experts. These days were added to the trial for its
conclusion. The admission of the video evidence will necessarily extend the
trial.

[18]       
In relation to the second factor, whether or not there was a reasonable
explanation for the parties’ failure to disclose, I have already determined
that strategy does not provide a reasonable explanation for lack of disclosure.
Rule 26(13) requires that supplementary documents are to be disclosed forthwith
and they were not.

[19]       
Concerning the third factor, whether the document would prevent the
determination of the issue on the merits, I have heard evidence including the
plaintiff’s evidence and the defendants’ evidence and expert evidence about the
plaintiff’s activity and her level of disability. Based on the summary provided
by counsel for the defendants of the contents of the video I cannot conclude
that I will be prevented from determining the issue on the merits.

[20]       
Finally, I am not persuaded that the ends of justice require that videos
be admitted.

[21]       
I therefore find that the videos are not admissible.

Witnesses

[22]       
In relation to the evidence of the witnesses observing the plaintiff
(the operatives who recorded the videos) ought to be allowed, the defence says
that like any lay witness, the operatives can be called to say what he or she
observed about the plaintiff and her activity.

[23]       
The plaintiff asserts that permitting the defendants to call witnesses
in relation to what is in the weekend video allows the defence to do indirectly
what it cannot do directly by my determination that the videos are not
admissible. The inevitable result will be that the video will be admitted
because it will be likely necessary for cross-examination.

[24]       
While there is no restriction on calling lay witnesses with regard to
observations they may have had of the plaintiff, I agree with the plaintiff
that it undermines my conclusion about the admissibility of the videos. The
defendants have had the evidence for some time and I have already determined
that it was not provided with sufficient notice to allow the plaintiff to
examine the investigators before trial or to adequately review the background
materials. I agree that the plaintiff is prejudiced as a result both in
preparation for trial and by the consequent delay of the conclusion of the
trial.

[25]       
At the outset of the trial, the plaintiff applied for an order that the
defendants’ disclose the names of the witnesses they intended to call. The
defendants had provided a witness list that referred to the witnesses as
“Witness one, Witness two” etc. I ordered the defendants to disclose names and
contact numbers of the witnesses. I expressly stated that one of the reasons
for my doing so was to prevent surprise or ambush and to allow both counsel with
the opportunity to prepare in advance with full knowledge of the intended
witnesses.

[26]       
It would be inconsistent with my previous order and with the objects of
the Rules, expressed in R. 1(5), “to secure the just, speedy and inexpensive
determination of every proceeding on its merits,” to allow the defendants to,
in effect, ambush the plaintiff with this evidence, which has been disclosed
only recently.

[27]       
I therefore exercise my discretion not to allow the defence to call the
operatives to give viva voce evidence concerning the observations that
are contained in the weekend video in the place of the video, or to call the
operatives who prepared the Mexico video as witnesses.

[28]       
As those are my conclusions, it is unnecessary for me to decide whether
the actual videographer must be called as a witness. The videos cannot be
admitted into evidence and the evidence of the operatives concerning the
weekend video activities is not allowed.