IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101125

Docket: M090260

Registry:
Vancouver

Between:

Nancy Pauline
Chalmers

Plaintiff

And

Amber Gayle
Russell

Defendant

– and –

Docket: M103466

Registry:
Vancouver

Between:

Nancy Pauline
Chalmers

Plaintiff

And

Janka Klose and
Lukas Klose

Defendants

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment

Introduction

[1]            
Nancy Chalmers, the plaintiff, had the misfortune of being involved in
two motor vehicle accidents.  The first accident, on February 19, 2007, involved
a collision with a vehicle driven by the defendant Amber Gayle Russell (now
Amber Stowe).

[2]            
Almost three years later, on December 22, 2009, the second accident occurred. 
It involved a collision with a motor vehicle owned by the defendant Janka Klose
and driven by her husband, the defendant Lukas Klose.

[3]            
Ms. Chalmers is suing for damages in relation to the injuries she
says she sustained in the two accidents.

[4]            
One of the issues in this trial was who was at fault for the first
accident.  Another significant issue in this case is whether or not Ms. Chalmers
suffered injuries which impaired her ability to work, both prior to trial and
in the future.

Background

[5]            
Ms. Chalmers is 40 years old.  As of the date of the first accident,
February 19, 2007, she was 37 years old.  She was then the mother of a 3
year old daughter, who was born in January 2004.  She was working two days
per week as a grade one teacher.  She was also pregnant.

[6]            
Following the first accident, Ms. Chalmers gave birth to her second
child, a boy, in April 2007.  Ms. Chalmers then took her one year maternity
leave, which ended in mid-April 2008.  When she returned to work following her
maternity leave, she continued to work two days per week.

[7]            
Ms. Chalmers continues to work two days per week as a grade one
teacher.  However, she says, but for the injuries she sustained in the
accidents, she would have increased her days at work to five days per week.

[8]            
She claims the following categories of damages: past wage loss; loss of
future earning capacity; non-pecuniary damages for her pain and suffering and
loss of enjoyment of life; and special damages.

[9]            
She has not advanced a claim for cost of future care.

Issues

[10]        
I will address the facts and issues under these headings:

1.       The Accidents

2.       The Injuries

3.       Past Wage Loss

4.       Loss of Future Earning Capacity

5.       Non-Pecuniary Damages

6.       Special Damages; and

7.       Division of Liability
for Damages.

The Accidents

The First Accident – February 19, 2007

[11]        
The first accident occurred midday on a rainy February 19, 2007.  Ms. Chalmers
was driving a Ford Explorer SUV and her daughter was in a car seat in the back.
They had just finished attending a swimming program for the daughter and were
heading towards a doughnut shop for a treat.  Ms. Chalmers was driving east
on Dollarton Highway.  She had stopped at a red traffic light and then once the
light turned green, was accelerating forward and passed under an overpass that
was leading from Highway 1.  Just past the overpass, there was an off-ramp
leading from Highway 1 onto the same road on which Ms. Chalmers was
traveling, Dollarton Highway.  Ms. Chalmers said that in a split second a
car appeared in front of her from the off-ramp.  She looked to perhaps avoid
the car by moving into the opposing lane, but saw a big truck coming at her.  She
honked her horn, braked and then her vehicle collided with the vehicle she said
suddenly appeared in front of her.

[12]        
Ms. Chalmers was six months pregnant at the time of the first
accident.  She was very upset about the collision because of her pregnancy, and
also because she had her young daughter in the vehicle.  She got out of the
vehicle, spoke to the driver of the other car, and then got into the backseat
to read a story to her upset child, awaiting the arrival of emergency vehicles.
The other driver had a cell phone and called 911.  She also provided the cell
phone to Ms. Chalmers so that she could call her husband.

[13]        
The collision left some damage to the front passenger side wheel and
side of Ms. Chalmers’ vehicle.  The airbags did not deploy.

[14]        
In cross-examination, Ms. Chalmers was inconsistent on one point
with respect to the accident.  She insisted that although she thought about
moving into the opposite lane, when she saw the car first appear in front of
her, she did not at anytime attempt to move her vehicle into the oncoming lane.
However, on examination for discovery she said that she had started to move
the vehicle into the opposite lane and then quickly changed her mind when she
saw the oncoming vehicle.  I do not find this inconsistency material to the
issues.

[15]        
On cross-examination, Ms. Chalmers denied that she was not paying
attention and that is why the defendant’s vehicle appeared suddenly in front of
her.  She also denied that she had any opportunity to avoid the collision if
she had braked.  She said there was just a couple of seconds before she saw the
car appear in front of her before the collision.

[16]        
The driver of the other vehicle was the defendant, Ms. Russell, who
has since married and has the married name Amber Stowe.  Ms. Stowe is 27
years old and was driving a Honda Civic at the time of the accident.  She said
that when she came down the off ramp from the bridge leading off Highway 1 to
Dollarton Highway, it was a construction zone with orange pylons around.  She
said it was raining very hard.  She wanted to turn on a road going left across
the westbound lanes and so she pulled up and stopped her car with her signal on
to turn left, waiting for the westbound traffic to pass.  She said that a
large truck going westbound passed her and she was just ready to make the left
hand turn when she heard a car horn.  She could see in her left rear-view
mirror a car coming towards her and then it hit her.  She says she only heard
one honk before the collision.

[17]        
Ms. Stowe said that the vehicle struck her car at the area of the
left front tire and bumper.  Her vehicle was moved forward quite a bit, but her
airbags did not go off.

[18]        
In cross-examination, Ms. Stowe admitted that once she was stopped,
waiting to turn left, she was unaware that there could be eastbound traffic
coming behind her.  She said that when westbound traffic cleared, she had just
started to move forward on to the Highway to make her turn left, when she heard
the honk.  She had not yet commenced her turn, but her vehicle had crossed over
the line.  She gave a statement to the insurance adjuster after the accident
that indicated that at the time of the accident, “I was just inching out”.  In
that statement, she said she had been stopped for approximately 35 seconds
before the accident occurred.

[19]        
Ms. Stowe also agreed that she had no opportunity to avoid the
collision.  She could not estimate the amount of time that lapsed between
hearing the car honk and the collision, but it was long enough to be aware that
she was going to be hit and not long enough to avoid the collision.

[20]        
As a matter of common sense, a driver should not drive into the flow of
traffic of other vehicles without checking that it can be done safely.  Here, Ms. Stowe
did not check at all.

[21]        
The relevant sections of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318 are s. 151, s. 155 and s. 156.  Section 151 provides
that a driver must not change lanes unless the driver has ascertained that the
change can be made with safety and it will not affect the travel of another
vehicle.  Sections 155-156 provide much the same with respect to entering onto
a highway.  The precise wording of the sections is:

151      A driver who is
driving a vehicle on a laned roadway

(a)        must not drive it from
one lane to another when a broken line only exists between the lanes, unless
the driver has ascertained that movement can be made with safety and will in no
way affect the travel of another vehicle,

(b)        must not drive it from
one lane to another if that action necessitates crossing a solid line,

155 (1) Despite anything in this Part, if a highway is marked
with

(a)        a solid double line, the
driver of a vehicle must drive it to the right of the line only,

(b)        a double line consisting
of a broken line and a solid line,

(i)         the driver of a vehicle
proceeding along the highway on the side of the broken line must drive the
vehicle to the right of the double line, except when passing an overtaken
vehicle, and

(ii)        the driver of a vehicle
proceeding along the highway on the side of the solid line must drive the
vehicle to the right of the double line, except only when finishing the passing
of an overtaken vehicle, and

(c)        one single line, broken
or solid, the driver of a vehicle must drive the vehicle to the right of the
line, except only when passing an overtaken vehicle.

 (2)  Subsection (1) (b) (i) and (c) do not apply if a
driver is avoiding an obstruction on the highway and first ascertains that the
movement can be made with safety and without affecting the travel of any other
vehicle.

156      If the driver of a
vehicle is causing the vehicle to enter or leave a highway and the driver has
ascertained that he or she might do so with safety and does so without
unreasonably affecting the travel of another vehicle, the provisions of
sections 151 and 155 are suspended with respect to the driver while the vehicle
is entering or leaving the highway.

[22]        
Neither witness gave evidence as to the lines on the Highway at the time
of the collision.  However, their evidence established that the collision occurred
when Ms. Stowe drove her vehicle from the off-ramp into a lane of traffic.
In doing so, she was not aware that there might be approaching traffic behind
her and so I find that she did not ascertain that she might do so “with safety”,
contrary to s. 156.  Furthermore, I find that when she entered the
eastbound lane of the Dollarton Highway, she did not do so “without
unreasonably affecting the travel of another vehicle”, that is, without
reasonably affecting the travel of Ms. Chalmers’ SUV, also contrary to
s. 156.  Ms. Chalmers’ SUV was so close to the point of Ms. Stowe’s
entrance onto the Highway that Ms. Stowe ought to have allowed her to pass
before driving forward.  Ms. Chalmers could not have done anything to
safely avoid the collision once Ms. Stowe pulled in front of her.

[23]        
As the driver of a merging vehicle who did not check behind her before
moving into a lane of traffic, and with Ms. Chalmers having the right of
way, I conclude that the fault for the accident lies solely with Ms. Stowe.

The Second Accident – December 22, 2009

[24]        
The second accident occurred on December 22, 2009. Ms. Chalmers
was driving her husband’s GMC Sierra pick-up truck and the children were in car
seats in the area behind the cab.  Ms. Chalmers was travelling westbound
on Keith Road in North Vancouver.  She was in the right-hand curb lane as she
was driving through an intersection with Mountain Highway, when a car turning
left collided with her vehicle.  Ms. Chalmers’ vehicle was badly damaged.  The
airbags were deployed and the front end was smashed in.

[25]        
The defendants Janka and Lukas Klose have admitted liability for the
second accident.

The Injuries

First Accident – February 19, 2007

[26]        
The most dramatic aspect of the first accident was the fact that Ms. Chalmers
was six months pregnant.  She testified that she was very concerned that the
accident might have harmed her unborn child.  Although the fetus was generally
quite active and moved around a lot, immediately after the accident Ms. Chalmers
could feel no movement.  She was taken to the hospital and was assessed.  While
there, she was extremely emotionally upset.  Ultimately, the tests revealed
that the fetus was stable.

[27]        
Ms. Chalmers said that prior to the first accident, she was feeling
very good.  She had lost 25 pounds, despite being pregnant.  She said she does not
recall having any hip pain or low back pain in the months leading up to the
first accident.

[28]        
Ms. Chalmers testified that after the impact of the first accident,
she was really hurting where her seatbelt had been, under her belly and across
her chest.  As well, she had immense pain in her neck and a headache.  Her
biggest concern was for her unborn child.

[29]        
When she was taken to hospital, she was given ice for her soreness,
while hospital staff monitored her fetus.  When the results determined that the
fetus was stable, she was released from the hospital and went home.  She said
that she then rested in bed.

[30]        
Ms. Chalmers said that the next day after the accident, she felt
like she had been “run over by a truck”.  She was very sore, had trouble
walking and felt that she must have a shorter leg because she was limping; her
lower back was very sore, her shoulders were sore, and the right side of her,
especially her neck, was very sore as well. She also had a headache for a
couple of days.  She did not return to work immediately because she said she
was in way too much pain and felt it was better to lie down.

[31]        
Between the date of the accident February 19, 2007, and the birth
of her son, April 12, 2007, Ms. Chalmers did not return to work.  She
said she was too sore and it was too hard to move around.  She explained that
because she teaches grade one students and they are so little and active, her
job involves lots of bending over and moving and she did not feel that she was
up to such activity.

[32]        
She said that she did not recall having any hip and back pain during her
first pregnancy.  However, after the accident, she said that she had hip and
back pain.  She had a hard time doing household chores.  She ceased taking her
child to some of the activities she had taken her to prior to the accident
because she found it difficult to drive.  Ms. Chalmers said that when she
did drive, she would get spasms in her back around the bra-strap area and she
did not have a full range of motion to rotate her neck to do a shoulder check.  She
said she had throbbing pain continuously in her neck and shoulders and would
frequently get headaches.  Because of all that, she was not sleeping well.  Further,
she said her right ankle was sore.

[33]        
Ms. Chalmers gave birth to her son on April 12, 2007 by way of
a caesarean section.  She described feeling that her recovery from the delivery
of her child was prolonged due to her injuries from the first accident.  For
example, she said that it took three or four months before she was able to get
out of bed on her own.  She also thought that the pain in her back was worse.  She
still had soreness around her bra-strap area and spasm in her shoulder blades,
which she said, felt like a knife going in.  She described leaning against a
wall and rolling on an exercise ball to try to get the pain out of her back.

[34]        
After the birth of her first child, Ms. Chalmers had post-partum
depression, for which she received medication.  She continued on this through
her second pregnancy and delivery, and continues on the medication today.  She
does not describe having any exacerbation of these symptoms due to the
accident.

[35]        
After the first accident, Ms. Chalmers visited her family doctor, and
went for massage therapy and physiotherapy treatments to try to improve her
physical health.

[36]        
Ms. Chalmers’ maternity leave expired after one year and so her due
date to return to work was April 13, 2008.  At that time, she felt that
her injuries would require her to take additional time off work and so decided
not to return to work immediately.  She took time off work for April, May and
June, 2008.

[37]        
Ms. Chalmers described herself as very active prior to the first
accident.  She engaged in a number of outdoor fitness activities, including
water skiing, skiing, hiking, and snowshoeing.  After the birth of her first
child, she took her young child to numerous activities as well.  She had a
friendship with another new mother, Dawn Wilkinson, and the two of them would
often engage in outdoor activities with their children.  However, Ms. Chalmers
said that after the first accident, she was not able to return to the same
level of activity.

[38]        
Ms. Chalmers tried swimming and going for walks during the summer
of 2008.

[39]        
According to her evidence, when the school year started in
September 2008, Ms. Chalmers was not “feeling super great” but,
because of the need for income in her home, she returned to work two days per
week, Thursday and Friday.  She said that she still felt strong pain in her
bra-strap area of her back and in her ankle.  By the end of the two days at
work, she was exhausted.  She found it difficult to manage all her duties with
the children in her class and then coming home and being a parent and wife.  She
said that at times she would use an exercise ball to release the pain in her
back while at school.  She was avoiding medication for her pain.

[40]        
Through the course of that school year from September 2008 to the summer
of 2009, she continued to work two days per week.  Ms. Chalmers said she
did try to adapt the classroom by purchasing a table that would allow the
students to come to see her and she also put a phone book under the desk to
support her feet.  However, she felt that she had only mediocre improvement
although there was some improvement.  For example, she would feel better in the
mornings than in the evenings.  She was engaging in swimming activities and
walking, including walking the family dog, in the time period just before the
second accident.

The Second Accident – December 22, 2009

[41]        
After the second accident, Ms. Chalmers reported to the ambulance
attendants that she was hurting in her chest area, back and neck.  The next day
she felt once again like she had been “run over by a truck”.  Ms. Chalmers
testified that she did not have new injuries, but the areas that felt sore
before the second accident, now felt more so.

[42]        
Ms. Chalmers continued to work but testified that every now and
then she would miss a day because she would feel her injuries were too painful that
day.

[43]        
In May and June 2010, Ms. Chalmers decided to take time off
work to focus more on her recovery and a small exercise program.  In September
2010, Ms. Chalmers returned to work two days per week.  She felt that she
could not increase her work schedule to three to five days per week.

Medical Evidence

[44]        
The plaintiff’s family physician, Dr. Elaine Gault, prepared two
expert opinion reports, which were tendered as exhibits at trial on behalf of
the plaintiff.  She also appeared as a witness at trial and was cross-examined
by the defendant.

[45]        
Dr. Gault has been Ms. Chalmers’ family doctor since
March 2004.  Her report dated November 7, 2008 and her report dated
December 18, 2009 were both prepared before the second accident.

[46]        
Dr. Gault first examined Ms. Chalmers after the first
accident, on February 21, 2007.  Dr. Gault found from examining Ms. Chalmers
that she had muscle spasms in her mid and lower back, shoulders and in the
groin areas.  Prior to the November 7, 2008 report, Dr. Gault saw Ms. Chalmers
several more times through to the last visit on November 6, 2008.  At
various times, Dr. Gault found the muscles in Ms. Chalmers’ back to
be very tight and her left lower back very tender.  There were some
improvements over time in that there were reported to be less flare-ups of the
lower back and pelvic pain.

[47]        
Dr. Gault concluded as of November 7, 2008 that Ms. Chalmers
likely suffered third degree soft tissue injuries from the first accident.  In
reaching this conclusion, Dr. Gault stated that Ms. Chalmers had no
issues with her neck, shoulders, back and pelvis prior to the accident.  Dr. Gault
noted that Ms. Chalmers was highly motivated to recover from her injuries
and expected that further improvement would occur.  However, she noted that
given Ms. Chalmers’ type of work and her own young children, this might
delay her recovery somewhat since she has been unable to avoid bending and
lifting both at home and at work.

[48]        
In her second report, Dr. Gault noted that she had assessed Ms. Chalmers
five more times since her earlier report.  She noted that Ms. Chalmers’ responsibilities
at home continued to be a challenge and that lifting was a problem because it aggravated
her mid back pain.  She felt that as the children get older, Ms. Chalmers
would not need to lift them as much and this will help the healing process of
her neck, shoulders, back and ankles.

[49]        
In both reports, Dr. Gault noted that Ms. Chalmers was at risk
of developing osteoarthritis in her neck and lower back in the future.  Dr. Gault’s
opinion appeared otherwise optimistic for eventual recovery.

[50]        
Dr. Gault also reviewed in her reports her recommendations for
massage and physiotherapy.  Ms. Chalmers appeared to have followed those
recommendations.

[51]        
In cross-examination, Dr. Gault confirmed that one assumption she
relied on in forming her opinions was that Ms. Chalmers had no issues with
her neck, shoulders, back and pelvis prior to the first accident.

[52]        
To challenge the correctness of this assumption, counsel for the
defendants put to Dr. Gault two medical forms filled out by Ms. Chalmers
when she attended massage therapy prior to the first accident, one form filled
out on October 1, 2005 and the other on October 30, 2006.  In the
October 1, 2005 form, Ms. Chalmers set out that her reason for
seeking massage treatment was “upper neck/shoulder pain”; the onset of the pain
was described as “gradual”; and the quality of pain was described as “popping”.
Ms. Chalmers filled out the form by stating in reply to the question
“what aggravates the pain”, the answer “moving neck/arm”.  She set out that ice
and heat and rubbing helped relieve the pain.  She described that the pain
affected her daily activities such as lifting the baby.  Her symptoms were
described as “sharp” and “aching”.  The form contained a diagram of the human
body, on which Ms. Chalmers noted as areas of her symptoms the neck and
upper back, including a knot in the middle upper back with the note “from
skiing years ago”.

[53]        
The second massage therapy form, filled out by Ms. Chalmers on
October 30, 2006, described her reason for treatment as “tension in upper
shoulder/neck”.  The form asked “where are you experiencing pain/discomfort?”
and she wrote “same as above”.  She described the pain as affecting her daily
activities, by making her tired.  On a diagram noting areas of pain, Ms. Chalmers
had shaded in the neck and upper back and lower back around the hips area.

[54]        
Ms. Chalmers admitted filling out these massage therapy forms, but
claimed not to have recalled why she went to massage therapy or even that she
had done so.  She suggested in her evidence in-chief that she had gone to
massage therapy prior to the first accident because she had an extended
benefits plan with a $500 limit on it and she wanted to use up the allotment
before the end of December, before the new period would start in January.  However,
the records indicate that Ms. Chalmers went to massage therapy seven times
from October 30, 2006 through to February 13, 2007.  Three of those
times were in the New Year, i.e., from January 2007 and onwards.

[55]        
Ms. Chalmers agreed in cross-examination that the areas of injury
that she described following the first accident were similar to the areas of
injury noted in the massage therapy records, or at least some of them.

[56]        
Dr. Gault admitted knowing that Ms. Chalmers had attended
massage therapy before the accident, but she thought this was related to loose
ligaments she had developed in pregnancy, around the sacroiliac joint pelvic
area.  She was not aware that Ms. Chalmers was receiving massage therapy
for neck and upper back pain.  Dr. Gault initially said that she was not
aware that Ms. Chalmers had sought massage therapy in 2005 for neck, upper
back and shoulder pains.  However, Dr. Gault’s records do indicate that
she referred Ms. Chalmers to massage therapy in 2005.

[57]        
Dr. Gault agreed in cross-examination that one explanation for the
symptoms on the massage therapy form could have been due to ongoing care of Ms. Chalmers’
infant child.  However, she disagreed that the symptoms reported to her by Ms. Chalmers
post-accident could have also be related to ongoing care of two children.  She
was clear that what Ms. Chalmers was reporting post-accident was a new
degree of pain.

[58]        
Dr. Gault explained in re-examination that she did not document in
her records any complaints from Ms. Chalmers of musculoskeletal pains
pre-accident, and because she does document such complaints as a matter of
practice, she can assume the subject was not raised by Ms. Chalmers.

[59]        
Dr. Gault’s records indicate that Ms. Chalmers did not report
to her problems with her heel or her Achilles tendon until July 2009, more
than three years after the first accident.

[60]        
The defendant tendered the affidavit evidence of Dr. Allison
Clarke, a medical doctor at the maternity clinic of Lions Gate Hospital.  She
attended on Ms. Chalmers on a couple of occasions but had no independent
recollection of their discussions.  However, she was able to identify that her
charts record a visit with Ms. Chalmers on January 15, 2007 a month
before the first accident.  At that time, her clinical records indicate that Ms. Chalmers
was “a little stressed with work, that she was leaving in April [mat leave] and
that she was seeing a massage therapist for hip pain”.

[61]        
Dr. Clarke also attended on Ms. Chalmers when she was brought
into the hospital on February 19, 2007, after the accident.  Her notes
indicate that Ms. Chalmers was “getting massage treatment for low back and
hip pain, and that she was to see if she could get in to see her therapist for
neck and back treatments”.

[62]        
The plaintiff also tendered the expert opinion evidence of Dr. Theo
van Rijn, dated January 14, 2010.  Dr. van Rijn was qualified as an
expert capable of giving opinion evidence in the area of physical medicine and
rehabilitation.  He has been practising in that area since 1983.  He saw Ms. Chalmers
in his office on January 14, 2010, less than one month after the second
accident.  He did his own examination of her, took her history and reviewed the
medical records.

[63]        
In Dr. van Rijn’s examination of Ms. Chalmers, he noted that
she favoured her right leg slightly.  She initially sat on a soft, low couch,
but became increasingly uncomfortable as the interview progressed.  She was occasionally
tearful in discussing the changes in her function since the accident.  No other
pain mannerisms were noted.

[64]        
Dr. van Rijn noted that Ms. Chalmers had restricted range of
motion with her neck rotation and extension on both sides.  Her right side was
significantly worse than her left.

[65]        
Dr. van Rijn noted that she reported diffused neck discomfort
extending from the base of her neck down and across her shoulders, generally
following the distribution of the upper middle portion of the trapezius muscle.
She had localized pain between the shoulder blades at approximately T5-7,
which was the area she associated with stabbing pain.  She also had a palpable
nodule in her right Achilles tendon that was sensitive to touch.  She appeared
to have multi-directional laxity in both shoulders and when moving her shoulder
joints could produce a cracking sensation and immediate pain continued down her
arms, more so on the right than on the left side.  Laxity means excessive
movement in the shoulder joint.

[66]        
In giving her history to Dr. van Rijn, Ms. Chalmers denied
having any ongoing problems involving her neck, shoulder joint region, between
or around the shoulder blades, lower back, hips, or right calf or heel before
the accident of 2007.  In cross-examination, Dr. van Rijn agreed that this
was an important factual assumption on which he relied.  He was then shown the
two massage therapy forms that Ms. Chalmers had filled out in the years
prior to the accident.  He agreed that the areas she shaded in on the pain
diagram on each form were the same areas in which she reported symptoms on his
examination of her.

[67]        
Dr. van Rijn agreed in cross-examination that symptoms in Ms. Chalmers’
neck, upper back, and lower back could be related to caring for young children,
which can be physically demanding.

[68]        
While he agreed that some of the muscle related complaints post accident
could be related to taking care of her young children, Dr. Van Rijn said
there was a different problem that appeared to be a new symptom, mainly the
pain that would radiate around her chest which presented as stabbing pain.  He was
of the view that this was quite unlike what she reported to the massage
therapist.

[69]        
Dr. van Rijn saw Ms. Chalmers less than one month after the
second accident.  He agreed that she was probably still in the acute phases of
what might have been her soft tissue injuries exacerbated by that accident.  He
said because it was too close to the date of the second accident, it was
difficult to make a final prognosis.

[70]        
Dr. van Rijn gave the opinion that the second accident temporarily
exacerbated the symptoms from the first accident.  He based this opinion on Ms. Chalmers’
reported symptoms.

[71]        
As for the right calf and heel symptoms, Dr. van Rijn agreed that
if the onset of those symptoms occurred more than two years after the first accident,
it would be difficult to relate those to the first accident.

[72]        
In re-examination, Dr. van Rijn was asked about whether the word
“tension” has the same meaning as “pain”.  He said it is a question of degree.  Muscle
tension could simply be muscle tightening from a variety of causes and might
not be painful.  The point of this re-examination was to emphasize that when Ms. Chalmers
filled out the massage therapy form on October 30, 2006, she described the
reason for treatment as “tension in her upper shoulders/neck”.

Post-Accident Conduct

[73]        
Ms. Chalmers’ husband, David Chalmers, testified as well.

[74]        
David Chalmers said that prior to the first accident Ms. Chalmers
was very physically active.  Prior to the birth of their first child, Ms. Chalmers
water skied in the summer, skied in the winter, did hiking, snowshoeing,
camping, fishing, biking and lots of outdoor activities.  Many of these
activities continued during her first pregnancy.  Even after her first child’s
birth, Ms. Chalmers stayed very active, swimming with the baby, going
hiking with her, snowshoeing and often carrying her around in the backpack. 
Apparently Ms. Chalmers even water skied with her young daughter before
the first accident.

[75]        
Prior to the first accident, Mr. Chalmers could not recall Ms. Chalmers
ever expressing any problems with pain, needing help for household chores, or
looking like she was in pain.

[76]        
Mr. Chalmers said that after the accident, Ms. Chalmers was
sore, grimacing, noticeably limping and was also very upset.  As time passed,
she continued to look like she was in pain and couldn’t carry out the household
chores she used to do, including carrying laundry, vacuuming and taking care of
their very large yard and garden.

[77]        
Once Ms. Chalmers returned to work two days a week, from his
observations, she appeared in pain and “wiped out” when she got home. She had
bags under her eyes, was grimacing, and would go to bed early as a result of
her pain.

[78]        
Dawn Wilkinson, a close friend of Ms. Chalmers, also testified.
They became close friends after the birth of Ms. Chalmers’ first child, as
they were both on maternity leave at the same time.  She explained how
physically active Ms. Chalmers was before the first accident, both in her
recreational activities and in home activities such as gardening.  Ms. Wilkinson
never heard Ms. Chalmers complain of pain before the first accident, nor
did she see her exhibiting any physical difficulties.  Ms. Wilkinson
remembers that after the first accident, Ms. Chalmers was very distraught
about what might have happened to her unborn child.  Ms. Wilkinson noticed
that after the first accident Ms. Chalmers seemed to move with stiffness
and as though she was in pain.  Ms. Wilkinson did not see a big difference
after the second accident.  The two of them no longer engage in the same
physical activities together as they did when they were on maternity leave,
although part of this may be explained by the fact that both returned to work two
days per week.

Conclusions as to Injuries

[79]        
While Ms. Chalmers had attended for massage therapy prior to the
first accident, I do not conclude from this that her symptoms post-accident
were the same as what she experienced before the accident.  Her evidence is
that she felt well before the accident, and did not feel well after the
accident and had a whole new degree of pain and soreness in her back,
shoulders, neck, and chest, as well as headaches.  The fact that she went to
massage therapy before the accident is not inconsistent with that evidence.  She
may have had some minor aches and pains for which she enjoyed massage therapy,
but this does not indicate that she had serious problems.  Consistent with her
evidence is the fact that her own family physician was never told by her that
she had ongoing problems in her back.

[80]        
Essentially, this issue comes down to a question of credibility: do I
believe Ms. Chalmers when she testified as to the degree of soreness and
pain she suffered following the first accident and the fact that this was
exacerbated by the second accident?  I do believe her on these points, other
than with respect to her sore ankle which was reported much later.  Consistent
with her evidence is that she severely curtailed her level of physical activity
after the first accident.  This is corroborated both by her husband and by her
friend, Dawn Wilkinson.  Also consistent with her evidence are the observations
of Dr. Gault after the first accident, and Dr. Van Rijn after the
second accident, with respect to Ms. Chalmers’ condition and her discomfort.

[81]        
I was also able to observe Ms. Chalmers in the witness stand.  She
appeared sincerely visibly upset when describing her limitations post accident.
In addition, I noted that she became uncomfortable sitting in the courtroom over
the course of a day, requiring her to shift considerably in her chair and
visibly squirm in what appeared to be an effort to try to get more comfortable. 
None of this appeared staged and it was consistent with Dr. van Rijn’s
observations of Ms. Chalmers.

[82]        
I conclude that Ms. Chalmers did suffer soft tissue injuries in the
first accident and there was an exacerbation of these symptoms at the time of
the second accident.

Past Wage Loss

[83]        
Ms. Chalmers’ claim for past income loss can be divided into
various components.  One of those components is her claim that she took “sick
days” from her sick day bank.  The evidence is not disputed that for any days
for which Ms. Chalmers took sick leave for which her employer provided her
benefits from her “sick day bank” she will be required to reimburse that sick
day bank to the extent she is awarded damages in relation to those sick days.  Counsel
for the plaintiff provided detailed records and submissions to identify the
costs to reimburse the sick bank for the various dates at issue and these are
not contested.  The only real issue with respect to the sick bank days is
whether or not days taken were due to the injuries caused by the accidents.

[84]        
The first period of time at issue is February 19, 2007 to
April 12, 2007.  This is from the date of the first accident to the birth
of Ms. Chalmers’ son.  On her evidence, Ms. Chalmers did not return
to work after the accident before the baby was born, due to the injuries from
the accident.  This time, given her work schedule, amounts to 11days of sick
leave benefits.

[85]        
I accept Ms. Chalmers’ evidence that following the first accident,
she was so sore and painful that she felt it necessary to take time off work
prior to the birth of her child in order to expedite her recovery.  I am
mindful that she did not obtain any medical evidence in support of her decision
to take time from work.  Regardless, given her advanced state of pregnancy, the
trauma of the accident and the pain she was in after the first accident, I
consider her decision not to return to work to be reasonable and due to her injuries.
The cost to reimburse the sick bank during this time period is $342.45 per
day, totalling $3,766.95.

[86]        
As noted in Bjarnason v. Parks, 2009 BCSC 48, depletion of a sick
bank is a compensable loss: at para. 56.  However, it is not an income
loss so there should be no deduction for income tax in accordance with ss. 95
and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231: Bjarnason
at para. 66.

[87]        
From April 13, 2007, to April 12, 2008, Ms. Chalmers was
on maternity leave and so there is no claim for income loss.

[88]        
When April 13, 2008 rolled around, Ms. Chalmers testified that
she was not feeling ready to return to work despite the end of her maternity
leave.  Thus, she did not return to work between April 13, 2008, and
June 30, 2008.  She only returned to work in September 2008.  Ms. Chalmers
testified she thought that if she stayed off work throughout that summer of
2008, she could try to get further in her recovery through swimming, exercise
and rest, making it easier to start work in September 2008.

[89]        
The problem I have with this claim is that Ms. Chalmers did not
obtain any medical evidence in support of her decision not to return to work
after her maternity leave, during the period from April 13, 2008 through
to June 30, 2008.  When Dr. Gault saw Ms. Chalmers on
February 8, 2008, Dr. Gault noted that “she was doing well with her
exercises and physiotherapy although she still complained of a sore neck and
shoulders.  She was having less flare-ups of her lower back and pelvic pain.  I
encouraged her to continue with her physiotherapy and exercising”.  There is no
suggestion that Dr. Gault was asked or recommended that Ms. Chalmers
not return to work between April 13, 2008 and June 30, 2008.  I
therefore do not accept the claim for past income loss during this period as
proven on the balance of probabilities.

[90]        
The next period of time for which Ms. Chalmers claimed past income
loss is for the school year beginning September 1, 2008 through to the
summer of 2009.  In the first half of that school year, Ms. Chalmers had
two days which she took off due to illness.  However, in her evidence she
could not recall if those dates were due to the accident or viruses.  She
confirmed that she often catches viruses due to the young age of the children
she is responsible for at school, resulting in sick days for colds, sinusitis,
flus and alike.

[91]        
From January 1, 2009 to the end of that school year, Ms. Chalmers
took ten days off work due to illness, which were paid by her sick day bank.  She
testified that she cannot be exact as to which days were related to flus or
viruses, but that most days that she took off were due to feeling that her accident-related
symptoms were much worse that day.  She said that some days her back would just
seize up, leading her to phone in to take time off work.

[92]        
There is no independent medical evidence to support the conclusion that
the days taken off work during the September 1, 2008 to summer 2009 school year
were due to the injuries caused by the first accident.  In her November 7, 2008
report, Dr. Gault reported that on her November 6, 2008 visit, Ms. Chalmers
reported still experiencing symptoms, that she was working part-time, and that
she found bending over to assist students difficult.

[93]        
In her December 18, 2009 report, Dr. Gault said that Ms. Chalmers’
condition had steadily improved over the year.  Dr. Gault stated that she
recommended that Ms. Chalmers not increase her work commitments in April
2009, and repeated this recommendation for the fall of 2009.  However, this was
apparently based on Ms. Chalmers’ statements that she had tried to
increase her work to three days per week and this had not gone well.  There was
no evidence called in this trial to support this statement, and Dr. Gault
was not asked about this.  In any event, this recommendation does not assist
the plaintiff in establishing that some sick days she took were due to the
accident.

[94]        
From September 1, 2009 to October 22, 2010 (the start of
trial) the plaintiff says she has taken some sick days off work due to the
severity of her symptoms from the accidents.  During the first half of the
school year in 2009, there is no medical evidence to support the conclusion
that sick days taken off work by Ms. Chalmers were due to her injuries
caused by the accident.  Following the second accident, Ms. Chalmers says
she took time off work in May and June 2010.  Her sick bank was depleted,
and so she lost wages.  There is no report from Dr. Gault covering that
time period.  Dr. van Rijn saw Ms. Chalmers on January 14, 2010.
He did not suggest that she could not return to part time work.  I find that
while Ms. Chalmers made the choice to take work off in May and
June 2010, there is no medical evidence to support the conclusion it was
due to the injuries she suffered in the accident.

[95]        
It may well be that Ms. Chalmers did not feel up to going to work
at times due to the muscle pain which she attributed to the accident.  But Ms. Chalmers
was clearly able to do some activities.  She could apparently look after two
infants without additional assistance, for example, and although she claims not
to have improved her health, she was able to work two days per week, and her
family physician reported that her condition had improved with time.  I am unable,
on the facts of this case, to simply draw the inference that Ms. Chalmers needed
to take sick days due to her injuries, in the absence of supporting medical
opinion evidence.

[96]        
Thus, with respect to the past wage loss claim related to days taken by Ms. Chalmers
from her sick bank or days taken off her part time work schedule, I allow her
claim only to the extent of $3,766.95.  Otherwise, I find the evidence
insufficient to support the claim that she lost income due to being unable to
attend at her part-time, two days per week job, due to either accident.

[97]        
The larger claim by Ms. Chalmers relates to her contention that,
but for the accident, she would have chosen to return to work five days per week
as of September 1, 2008, rather than the two days per week when she did
return.

[98]        
Ms. Chalmers’ evidence was uncontested that she had the choice of increasing
her work schedule to full time, as she had worked to this degree prior to the
birth of her first child.  In cross-examination, Ms. Chalmers agreed that
after she had her first child, she chose to work only two days per week as she
wanted to be the person most involved in raising her children, especially in
their formative years.  She was also concerned about the cost of daycare.  She
had the same concerns and desires after the birth of her second child.

[99]        
Ms. Chalmers’ evidence was that around April 2006, a year
before the birth of their second child, her husband decided to start his own
business.  He continued his full time employment but incurred expenses in getting
his own business up and running.  That situation continues to this day.  Ms. Chalmers
explained that because of this, it was her intention to go back to work full-time
in September 2008.  When asked why, she said it was because “my husband
told me I had to go back to work five days”.  The reason was because they
needed more income in the house to help pay for the expenses of his business. 
She said that she was “fine with it” and that she agreed.

[100]     Ms. Chalmers
claimed that she had formed this intention prior to the birth of her second
child and prior to the accident.  She said she felt she didn’t need to let her
employer know until the end of June or July prior to the school year in which
she would expect to return to work, i.e., 2008.

[101]     To corroborate
her evidence, Ms. Chalmers said that she spoke to the nanny of a friend
about how to make arrangements to bring another nanny to Canada.  However,
these discussions did not progress.

[102]     The woman
who Ms. Chalmers spoke to about nanny arrangements was Ms. Cuchero.  Ms. Cuchero
also testified and confirmed that they had a general conversation about this,
although it did not progress.  Ms. Cuchero had a different
recollection as to the time period when they had the discussion.

[103]     Mr. Chalmers
explained that once he started his own business, it incurred considerable
financial debt. He said it has been a considerable financial burden on their
family.  Mr. Chalmers said for this reason, it was necessary for his wife
to return to work five days per week in September 2008.  He said that when
he started his business and incurred expenses he told his wife she had to go
back to work full-time.  She did not refuse and she said she would look into
getting a nanny.

[104]     In cross-examination,
Mr. Chalmers agreed that since starting his own business he travels quite
a bit on business, often being out of town for a couple of days each week.

[105]     He also said
that he had never calculated the cost of a full time nanny or having the kids
in daycare without a nanny.  He had simply assumed from what he had been told
that it would be cheaper to have a nanny than having daycare.  He estimated
that daycare would cost around $40 a day per child.

[106]     I was
convinced by the evidence of Mr. and Ms. Chalmers that they are
financially burdened and need more money.

[107]     However, I
was not convinced by their evidence that this would have been enough to cause Ms. Chalmers
to return to work five days per week rather than two days per week, but for the
injuries she sustained in the accident.  Ms. Chalmers did not suggest in
her evidence that she ever had the desire to return to work five days per week
after her maternity leave for her second child ended, only that she was told by
her husband to do so for financial reasons.  It seemed apparent to me, from the
whole of her evidence, that she wished only to work two days per week so that
she could be more closely involved in the care of her children at their young
ages.

[108]     In
addition, if the only reason Ms. Chalmers was going to return to work five
days per week as opposed to two days per week was the financial benefit to her
family, it is inconsistent that she did not put together any calculations as to
how she would be financially ahead if she did return to work full time, once
daycare or nanny expenses would be taken into account.  The absence of such
evidence makes me doubt the seriousness of Ms. Chalmers’ statement that
she had decided to return to work full-time.  She agreed in cross-examination
that the cost of daycare was one reason she had originally only returned to
work two days per week after the birth of her first child.  She agreed that the
same rationale would apply after the birth of her second child.

[109]     Furthermore,
the evidence falls short of establishing that Ms. Chalmers is medically
unable to work five days per week.  She has not produced medical opinion
evidence that persuades me that her injuries prevent her from working five days
rather than two days per week.

[110]    
Dr. van Rijn had this to say in his report of January 14, 2010:

Ms. Chalmers has yet to return to full time work. Even
part time work (with compensatory techniques, adaptations, and adaptable
equipment) is difficult for her to manage. Although primary school teaching is
seemingly an ‘easy’ job, it can produce physical challenges because of the need
to bend, stop, and/or nurture small children during the school day.

While it remains to be seen whether or not she will be able
to cope with a full work load, I suspect that her ongoing accident related
complaints will affect her job performance, her ability to undertake all
aspects of her job, and her capacity to work on a full time basis without
ongoing adaptation and likely accommodation on the part of her employer.

As Ms. Chalmers thoroughly
enjoys teaching, attempts should be made so that she can continue to work. She
will likely require more help at home to help balance the likely increased
degree of discomfort/pain that she will likely experience, were she to work on
a full time basis (as well as managing a busy household).

[111]     Dr. van
Rijn did not say that Ms. Chalmers could not teach, but rather, that if
she wanted to work full-time, it remained to be seen whether or not she could
do so and it was likely that some accommodation would need to be made by her
employer.  As well, she might need extra support at home.  However, there was
no evidence to suggest that Ms. Chalmers explored either option:  teaching
full-time with some accommodation by her employer or with some extra support at
home. Further, Dr. van Rijn’s report was prepared just after the second
accident, he was not aware of Ms. Chalmer’s prior muscle complaints to her
massage therapist, and for these reasons he conceded in cross-examination that
he was unable to make a reliable prognosis.

[112]     Dr. Gault
did state, in her report of December 18, 2009, that she would encourage Ms. Chalmers
to work two days per week until such time as her back was less aggravated by
the demands of childcare at home.  However, Dr. Gault did not express the
opinion that Ms. Chalmers would be unable to work five days per week,
rather than two, due to her injuries.

[113]     In some
cases, the pain or restrictions in movement caused by soft tissue injuries may
indeed be so great that the injured person will not be able to perform her
employment functions for a time, or even permanently.  In other cases, the pain
will come and go, or the pain and restrictions will be less acute, and will not
interfere with the person’s ability to work.  In the latter situation, because
the injured victim has a duty to mitigate her damages, if she chooses not to
work she will not be entitled to then claim the wage loss from the party who
caused the accident.

[114]     In this
case there was simply not enough evidence to persuade me that Ms. Chalmers’
injuries caused by the accidents prevented her from working more days as a grade
one teacher than she otherwise would have worked.  Although there was evidence of
a possible financial reason to return to work on a full-time basis, this evidence
was not persuasive.  The evidence failed to demonstrate that meaningful steps
were taken to assess the costs and benefits associated with a transition to
full-time work.  I find that Ms. Chalmers maintained a strong desire to
stay at home to care for her young children on a more consistent basis than full
time work would permit, and that this was more likely the reason that she did
not work more than two days per week.  In other words, I am not persuaded that Ms. Chalmers
ever truly intended to return to work five days per week rather than two days
per week, while her children were quite young.  Most importantly, the medical
evidence falls short of supporting a claim that the attributable injuries actually
prevented an increased work schedule.

[115]     I
therefore do not accept the claim that Ms. Chalmers would have returned to
work five days per week, instead of two days per week, but for her injuries
caused by the first accident and exacerbated by the second accident.

Loss of Future Earning Capacity

[116]     For the
same reasons that I have concluded that Ms. Chalmers has not proven her
claim that she would have worked five days per week as opposed to two days per
week, in the past, but for her injuries, the claim for loss of future earning
capacity must also fail.

[117]     Ms. Chalmers
was happy working as a teacher and there does not appear to be a possibility
that she would have pursued other work.  I have not been persuaded that there
was a real and substantial possibility that Ms. Chalmers would have
returned to work as a teacher five days per week, rather than two days per
week, but for the injuries she sustained in the accident.  Furthermore, the
evidence does not persuade me that there is a real and substantial possibility
that the injuries will, in the future, impair Ms. Chalmers’ ability to
increase her work schedule to five days per week rather than two days per week:
see Perren v. Lalari, 2010 BCCA 140 at para. 32.

Non-Pecuniary Damages

[118]     The
plaintiff’s claim for pain and suffering and loss of enjoyment of life is well
supported by the evidence.  All areas of Ms. Chalmers’ life have been
negatively impacted by her injuries.  She is suffering some pain regularly, and
has been unable to return to the same degree of active lifestyle that she used
to enjoy.  Her ongoing pain effects her enjoyment of her children and her enjoyment
of her work.  However, the injuries have diminished over time, and the medical
evidence does not suggest that she will not get better.

[119]     There also
is a real possibility that Ms. Chalmers would have suffered some
occasional pain due to her childcare responsibilities even absent the two
accidents.  The manner in which she filled out her massage therapy forms
indicates that she was having some problems lifting her baby in
October 2005 and ongoing soreness.  Nevertheless, I find that the
motor vehicle accidents created new and more severe symptoms that impeded her
ability to enjoy physical activities, her time with her children and her
husband, and her job.

[120]     The
plaintiff suggests that an award of $75,000 would be an appropriate award for
non-pecuniary damages in the circumstances of this case.  The defendant
suggests a more appropriate award is $30,000 to $40,000.

[121]     The
plaintiff relies on the decisions of Cabral v. Brice, 2010 BCSC 197, and
Chamberlain v. Giles, 2008 BCSC 171, in each of which $50,000 was
awarded for non-pecuniary losses.  The defendants rely on the decisions of Bradley
v. Groves, 2009 BCSC 1882, aff’d 2010 BCCA 361, and Mendoza-Flores v.
Haigh, 2010 BCSC 740 in which $30,000 and $40,000 was awarded respectively.
I have considered these decisions as well as Boyle v. Prentice, 2010
BCSC 1212, where $65,000 was awarded for non-pecuniary damages.

[122]     The
medical evidence suggests that Ms. Chalmers continues to suffer from the
effects of her injuries.  While I have concluded that this has not prevented
her from working, I nevertheless accept that these injuries are continuing to affect
all aspects of her enjoyment of life and will continue to do so for at least
some time.  She is not able to enjoy teaching to the same degree, she is tired
more easily and she is unable to enjoy the same household and recreational
activities as she used to do.

[123]     Importantly,
Ms. Chalmers has lost the experience of being a relatively pain-free,
physically active mother of her infant children during an important period in
their young lives.  This is clearly a huge loss for Ms. Chalmers.

[124]     I conclude
that a reasonable award of non pecuniary damages, that is fair to all parties,
is $50,000.

Special Damages

[125]     The plaintiff
has incurred a number of expenses for massage therapy and physiotherapy. I
conclude that all of these out-of-pocket expenses were due to the injuries
caused by the first accident. Ms. Chalmers is entitled to the following
special damages:

[126]    
In addition, the plaintiff had to incur some babysitting fees while she
attended to her physiotherapy and massage therapy sessions.  I will award the
plaintiff $211.00 in respect of this claim.  The total amount of special
damages is therefore $1,737.50.  I conclude that the other claims for special
damages were not proven as caused by the accident.

Division of Liability for Damages

[127]     The past
wage loss is attributable to the first accident and therefore is a loss in
respect of the defendant Amber Gayle Russell.

[128]     The
special damages are all attributable to the first accident.

[129]     As for the
non pecuniary damages, I accept the plaintiff’s submission that these are
indivisible and should be awarded jointly and severally as against all the
defendants: see Bradley v. Groves, 2010 BCCA 361 at para. 32.

Conclusion

[130]    
The plaintiff is awarded non-pecuniary damages of $50,000 as against all
defendants, jointly and severally.  As well, the plaintiff is awarded $3,766.95
as the cost of reimbursing her sick day bank for the time period
February 19, 2007 to April 12, 2007.  This is attributable to the
first accident, and the defendant Amber Russell.  The plaintiff is also entitled
to special damages of $1,737.50 as against the defendant Amber Russell.

“S. Griffin, J.”
The Honourable Madam Justice S. Griffin