IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110627

Docket: M102264

Registry:
Vancouver

Between:

Brenda Ann Ryan

Plaintiff

And

Kenneth Klakowich,
Contemporary Leasing Ltd., and Prestique Kitchen Ltd.

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Overview

[1]            
This is a claim for damages for personal injuries suffered by the
plaintiff, Brenda Ryan, in a motor vehicle accident that occurred on December
2, 2008 (the (“2008 Accident”). The defendants have admitted liability. At
issue are the non-pecuniary damages, some of the special damages, the claims
for past and future wage loss and the costs of future care.

[2]            
Ms. Ryan is 54 years old. She is a professional piano tuner and
technician. Ms. Ryan claims to have suffered injuries in the 2008 Accident
that have not resolved. Complicating the assessment is the fact that Ms. Ryan
has been involved in a number of other accidents, both before and after the 2008
Accident. In addition, she suffers from a number of medical conditions, some
pre-dating, some post-dating the 2008 Accident. Thus, the key issues to be
determined are the extent of the injuries caused by the 2008 Accident, the
extent to which the symptoms that Ms. Ryan has complained of are the
result of the 2008 Accident or attributable to pre-existing or subsequent
causes unrelated to the 2008 Accident.

Background

Pre-Accident

[3]            
Ms. Ryan suffers from severe scoliosis, likely a congenital
condition. She testified that she was asymptomatic in relation to this
condition prior to the 2008 Accident. However, it is clear that Ms. Ryan
was receiving chiropractic treatments for her scoliosis on a fairly routine
basis in the years prior to the 2008 Accident and up to the time of that
accident. This suggests that her condition required treatment on a regular
basis. I think that the correct inference to be drawn is not that she was
asymptomatic, but that her symptoms were well controlled with treatment.

[4]            
Ms. Ryan was in a motor vehicle accident in May 2003 when she was
rear-ended while her vehicle was stopped at a red light. Her complaints
included pain in the neck and back, especially on the right side, restricted
range of motion and frequent headaches. She was received acupuncture,
chiropractic treatment, massage therapy and physiotherapy. She reported that
her injuries were interfering with her work. Her medical records note that at
this time she was also being treated for heart disease.

[5]            
Ms. Ryan was still reporting symptoms from the May 2003 accident
when she was involved in another motor vehicle accident in December 2003. She again
reported neck pain, severe headache and pain in the mid-thoracic region
following this accident. The clinical notes reflect restricted range of motion.
She reported difficulties doing housework, working, knitting and working at her
computer. She was prescribed physiotherapy and was encouraged to work, but to
scale back. She also received acupuncture.

[6]            
An x-ray of the cervical and thoracic spine conducted in February 2004
noted that the bones looked diffusely osteopenic. This resulted in a bone
mineral density test being conducted. Ms. Ryan showed significant loss of
bone mineral density with a diagnosis of osteoporosis. Her spinal fracture risk
was rated as moderately high.

[7]            
The patient intake form for the acupuncture clinic in April 2005 notes
that Ms. Ryan’s medical history included treatment for hypertension. In
September 2005, Ms. Ryan’s family doctor provided her with a note stating
she required a personal trainer due to severe scoliosis and back pain from two
motor vehicle accidents.

[8]            
Ms. Ryan was continuing to report symptoms of pain in the neck and
back, and in particular, the right upper back, as well as restricted range of
motion and headaches from the December 2003 accident in March 2006 when she was
involved in another motor vehicle accident. In this accident, she was a
pedestrian at the side of a road and jumped to get out of the way of the car.
The clinical notes reflect that this caused a flare up of whiplash injuries. Her
symptoms included neck stiffness, headaches, pain, tenderness and muscle spasms
worse on the right than the left, and reduced range of motion in all directions.
In December 2006, her family doctor provided a note stating that Ms. Ryan
required Pilates for medical reasons related to the musculoskeletal injuries
sustained in a motor vehicle accident.

[9]            
Bone mineral density testing was conducted in February 2007 with no
significant change from the 2004 exam. Lumbar osteoporosis was found to be present
with a moderate fracture risk.

[10]        
Ms. Ryan was involved in another motor vehicle accident in July
2007. The clinical notes reflect that she complained of pain in her neck and
back and reduced range of motion. She was referred to physiotherapy and massage
therapy; however, she declined physiotherapy. In September 2007, Ms. Ryan
reported that she was still experiencing neck pain and spasms. In addition, she
reported tingling down her arm. She was seeing a chiropractor.

[11]        
In June 2008, Ms. Ryan’s family doctor provided another note with
respect to the continuation of Pilates. In August 2008, Ms. Ryan saw her
physician for head and neck symptoms.

[12]        
Ms. Ryan fell and injured her back, arm and rib on October 26, 2008.
She then had seven visits with a chiropractor for treatment with respect to the
fall injury between the time of the fall and the 2008 Accident.

[13]        
In summary, Ms. Ryan’s relevant pre-accident history includes both
severe scoliosis for which she was receiving regular chiropractic adjustments,
osteoporosis and several accidents that produced ongoing symptoms in her back,
neck and head that are similar to her complaints following the 2008 Accident. Ms. Ryan
was reporting symptoms in these areas on a fairly continuous basis in the
period between May 2003 and August 2008. In addition, as of September 2007, she
reported tingling down her arm.

The 2008 Accident

[14]        
The motor vehicle accident at issue in these proceedings occurred at
about 3:45 p.m. on December 2, 2008. The personal defendant, Kenneth Klakowich,
described the accident. Mr. Klakowich was on his way home from work,
driving his company vehicle. He had come to a full stop behind Ms. Ryan’s
vehicle at a red light. The advance flashing green light came on and Mr. Klakowich,
mistaking it for the advance green, released the brake. His vehicle rolled
forward and bumped the rear bumper of Ms. Ryan’s vehicle. He described the
impact as like bumping a shopping cart against a counter. He was wearing his
seat belt, but it didn’t engage. He stated that he did not recall Ms. Ryan’s
vehicle being thrust forward. He got out of his vehicle and asked after Ms. Ryan.
He recalled that she reported that she was alright.

[15]        
The contents of Mr. Klakowich’s vehicle were not disturbed and
there was no damage to his vehicle. The damage to Ms. Ryan’s vehicle
consisted of two small cosmetic marks to the rear bumper plastic cover and
painted surface consistent with the licence plate bolts of the defendant’s
vehicle. The cost of repair to Ms. Ryan’s vehicle was $568.10.

Post-Accident

[16]        
It was Ms. Ryan’s testimony that prior to the 2008 Accident she was
in very good health. She stated that she suffered from mild hypertension, but
that it was under control. She stated that the symptoms from the fall had
resolved well before the accident. As noted, this testimony is not consistent
with the pattern of medical conditions, symptoms and treatment reflected in the
clinical records.

[17]        
Ms. Ryan stated that she did not experience problems in the
immediate aftermath of the accident. She testified that a couple of days later
she began to experience headaches at the base of her skull as well as pain and
spasms in her upper spine.

[18]        
Ms. Ryan attended at her regular clinic on December 8, 2008 but saw
Dr. Anderson who hadn’t treated her before. She stated that Dr. Anderson
recommended that she go to massage therapy and acupuncture, which she did. He
prescribed pain medication.

[19]        
The clinical records note that on the first visit following the 2008
Accident Ms. Ryan complained of a very sore neck, headaches worse on the right,
very tender C3/4 and tender trapezius, sternomastoids and scalene muscles. Ms. Ryan
had limited range of motion, again worse on the right. Dr. Anderson made a
diagnosis of soft tissue injury of the neck and recommended range of motion
exercises, medication and heat.

[20]        
Ms. Ryan then attended seven visits with Dr. Whitehead, her
chiropractor, during the balance of the month of December. Ms. Ryan stated
that she had been receiving regular treatment from Dr. Whitehead for her
scoliosis. She attended a few times as a result of the motor vehicle accident.

[21]        
Ms. Ryan returned to Dr. Anderson on December 29, 2008. The
clinical records reflect that she complained of centralized mid-line pain from
the neck to the base of the skull, a very sore right trapezius, and headaches
daily in the morning. Dr. Andersen noted she was tender at C3/4/5/6 and T/3.
Her range of motion was limited, about 60% of normal. Her sternomastoids and
trapezius were tender.

[22]        
Ms. Ryan attended three sessions with Dr. Whitehead in January
2009. Ms. Ryan saw Dr. Anderson on January 12, 2009. She reported
that there was no real change in her symptoms. She stated that she was back
working full-time. The clinical records reflect tenderness at C3/4/5/6 and T/1/2/3
together with adjacent muscles. Dr. Anderson recommended massage therapy
and acupuncture.

[23]        
Ms. Ryan attended three sessions with Dr. Whitehead in
February 2009. On February 26, 2009 Dr. Anderson noted that she was not
improving with the chiropractor and suggested that it might be time to back off
those treatments. In March he wrote a prescription for massage therapy. Ms. Ryan
reported that she was improving with acupuncture. The problem was now in her
low central neck and right shoulder girdle. With respect to the chiropractic
sessions, Ms. Ryan testified that she continued to see Dr. Whitehead
for regular adjustments that had nothing to do with the motor vehicle accident.

[24]        
Ms. Ryan recalls that she took massage therapy for about a year and
five months. She feels it gave her temporary relief. She cannot recall how long
she took acupuncture, but states she also found it to be helpful. She continued
to do Pilates as recommended by her doctor.

[25]        
It is Ms. Ryan’s testimony that during 2009 the injuries from the 2008
Accident steadily worsened. Her headaches worsened and she had to increase her
pain medication.

[26]        
Dr. Anderson’s records document visits on March 24 and April 28,
2009. The clinical records reflect that Ms. Ryan reported that she was
still symptomatic, but improving. In this respect, Ms. Ryan’s reports to Dr. Anderson
were inconsistent with Ms. Ryan’s testimony at trial.

[27]        
At a visit to Dr. Anderson on June 10, 2009 she reported she had
plateaued. She was ‘holding’ on acupuncture, but receiving massage weekly, and still
doing exercise and Pilates. Dr. Anderson recommended continued work,
exercise and massage.

[28]        
During this period, Ms. Ryan’s mother was in fragile condition. She
was living on her own, but had a number of health issues. In June 2009, Dr. Anderson’s
clinical records reflect that Ms. Ryan was staying home and nursing her
mother.

[29]        
In August 2009, Ms. Ryan was diagnosed with Type II diabetes. In
addition, clinical records reflect that she was experiencing moderate stress
related to family issues.

[30]        
In September 2009, a repeat bone mineral density testing was done. The
test showed deterioration compared with the 2007 test. At this time the
clinical records also reflect that Ms. Ryan was suffering from
osteoarthritis in her hands. The records note that Ms. Ryan was under moderate
psychological stress as a result of family issues.

[31]        
Ms. Ryan was involved in another motor vehicle accident on
September 3, 2009. This accident was her fault. The accident resulted in
substantially more damage to the vehicle. The cost to repair her vehicle was $2,072.29.
It was her testimony that she suffered no injury in this accident. She stated
the accident caused no impact as it involved scraping along the side of her
vehicle.

[32]        
Ms. Ryan attended Dr. Anderson on December 29, 2009. She
reported that she had tuned a difficult piano and her neck was very tight and
painful. Dr. Anderson instructed her to carry on with her work.

[33]        
In January 2010, Ms. Ryan was in another motor vehicle accident, again
sustaining considerable damage to her vehicle. This accident was also her
fault. The cost to repair her vehicle was $2,727.64. She reported that she
suffered no injury in this incident.

[34]        
Ms. Ryan was admitted to hospital in February 2010 suffering from
chest wall pain. In March of that year, the clinical records reflect Ms. Ryan
seeking advice regarding stress from family issues.

[35]        
In April 2010, Ms. Ryan visited Dr. Anderson, reporting more
problems with her neck and right arm. She now reported parasthesia in her right
arm in the radial nerve distribution. She was going to a chiropractor and
massage therapy monthly. She reported that she was very sore in her cervical
spine and right shoulder. Her range of motion was normal.

[36]        
In June 2010, Ms. Ryan visited Dr. Anderson reporting continued
neck pain, stiffness and right arm discomfort. Her range of motion was
decreased. Dr. Anderson prescribed chiropractic sessions, massage,
physiotherapy and acupuncture.

[37]        
An MRI of Ms. Ryan’s cervical spine was conducted in August 2010.
The report notes disc desiccation, but no nerve root compromise was identified.
Later that month Ms. Ryan reported to Dr. Anderson that she was very
stressed regarding the situation of her mother. She told Dr. Anderson that
she was not receiving help from her siblings caring for her mother.

[38]        
Ms. Ryan saw Dr. Anderson in November 2010 and reported no
change in recent months. She reported that she was experiencing chronic right
neck and right arm pain and occasional numbness, but now in the ulnar nerve
distribution of her hand. She reported tenderness in her right shoulder girdle
trapezius and interscapular muscles and reduced cervical spine range of motion.

[39]        
Clinical records in February 2011 reflect a discussion with Ms. Ryan
in which she reported that her mother needs placement; she is falling all the
time and incontinent in the night. Ms. Ryan was very upset about her
mother’s situation.

[40]        
Ms. Ryan testified that she presently suffers from significant
headaches, neck pain and pain in her upper back and shoulders radiating down
her arm. In addition, it was her testimony that she experiences tingling and
numbness in her right arm down into two fingers of her right hand. She stated
that she is not seeing any improvement. She is no longer taking any form of
treatment. She attributes all of these difficulties to the 2008 Accident.

[41]        
Ms. Ryan stated that the 2008 Accident has slowed her down. She is
not as active as she once was. She does not enjoy her work as she did before.
She is short with people and hates how she feels. She stated that before she
was a happy go lucky person who loved her life, loved going out and was
involved in the music industry. It was her testimony that since the 2008
Accident her social life is much reduced. She does not go dancing nor golfs or
rollerblades. She has problems knitting and walking. She has not skied since
the 2008 Accident. It was her testimony that she tried to go to the driving
range, but found that the pain in her neck and shoulder prevented her from carrying
on. She stated that she always wanted to learn to ride a motorcycle and planned
to learn with her sister. However, the instructor and her physician did not
think that it was wise for her to continue and so she abandoned that plan.

[42]        
Ms. Ryan stated she has been in a long term relationship with
Gerald Zelter. Mr. Zelter has children and Ms. Ryan has over the
years been very active with Mr. Zelter’s children. She stated her injuries
have interfered with her relationship with Mr. Zelter in that they are not
as intimate as they once were. She has not been able to enjoy activities as a family
with Mr. Zelter and his children as before.

[43]        
Ms. Ryan stated that she has not been able to help with her mother
as much as she did prior to the 2008 Accident. In particular, she has not been
able to help her mother with gardening and housework. In addition, it was her
testimony that it takes her much longer to do her own housework.

[44]        
Ms. Ryan described piano tuning as very physically demanding. It
requires reasonably heavy lifting, standing over extended periods and numerous
adjustments. She testified that the 2008 Accident has affected her ability to
work. It was her testimony that, prior to that accident, she was able to work
harder and more hours in a day. She stated that before the 2008 Accident she
could complete three to four piano tunings a day. Now she can only do two
tunings a day and then pain in her arm and headaches become more serious. She stated
that she must stop frequently so that each tuning takes longer. She stated she
has started having to work weekends because she cannot get accomplished what
she used to do during the week.

[45]        
It was her testimony that she had been working at a restaurant between
July and October before the accident. She stated she enjoyed the work and planned
to go back in March 2009, but could not as a result of the injuries she
sustained. She says that her position was available to her.

[46]        
Ms. Ryan’s gross income was as follows:

[47]        
Ms. Ryan testified that, but for the accident, she would have
worked as a waitress in addition to her work as a piano tuner. It was her
evidence that she had a history of working as a waitress, very much enjoyed the
work and the work was available to her at the West Beach Bar and Grill. The
documents in evidence reflect work at the West Beach Bar and Grill in the
period July to October 2008 with total earnings of $1,946.95. The record of
employment which was issued to Ms. Ryan reflects that she quit her
employment. This section of expected date of recall is marked “N/A”. The income
tax returns dating back to 2005 do not reflect any employment as a waitress

Collateral Witnesses

Norbert Marten

[48]        
Mr. Marten has known Ms. Ryan professionally as a piano tuner
technician for approximately 25 years. He describes the work of a tuner
technician as very physically demanding. It is his opinion that prior to the
2008 Accident, Ms. Ryan was in the top class of piano tuners.

[49]        
He states that he employed Ms. Ryan on one occasion after the 2008 Accident.
This was in April 2009. It was his observation that she was working very
slowly, taking many breaks. Her work was not up to the speed his business
required. This was in sharp contrast to her earlier performance.

Sidney Lucas

[50]        
Ms. Lucas has known Ms. Ryan since 2005. They met at their
children’s soccer and became friends, seeing each other socially. In July 2006,
they travelled to England on a soccer field trip.

[51]        
It is her evidence that prior to the 2008 Accident, Ms. Ryan was
very fit and active. They enjoyed many activities together including knitting,
taking long walks. She recalled that Ms. Ryan was active in her profession
as a piano tuner and was also employed part-time as a waitress.

[52]        
Ms. Lucas testified that since the 2008 Accident, Ms. Ryan had
become more tired and withdrawn. She stated that he no longer sees her socially
with as much frequency. She reported that Ms. Ryan says she cannot go out
because she has to work the next day. She stated Ms. Ryan complains of
problems with her right arm. She described the change as dramatic.

[53]        
While Ms. Lucas ascribed all the changes she observed in Ms. Ryan
to the 2008 Accident, Ms. Lucas was not aware of a 2007 motor vehicle accident
or if Ms. Ryan suffered any injury. She was not aware of the October 2008
fall Ms. Ryan suffered or whether she suffered any injury from that
accident. She was not aware of Ms. Ryan receiving treatment for injury in
2007. She was not aware that Ms. Ryan is diabetic nor that Ms. Ryan
suffers from osteoporosis.

Diane Arnold

[54]        
Ms. Arnold has been friends with Ms. Ryan for about 20 years. She
stated they have had fairly steady interaction over the years, but while they
used to see each other socially very often, this has diminished.

[55]        
Ms. Arnold stated that Ms. Ryan used to be very active and social.
They used to go to many social events such as plays. They used to go for long
walks together.

[56]        
It is her testimony that recently Ms. Ryan does not go out socially
as much. She complains of pain and headaches. She seems tired and does not want
to go out. She has had to stop during their walks, complaining of pain. She
seems down and sad. She states this had been increasing since the 2008 Accident.

[57]        
In cross-examination, Ms. Arnold stated she knew about Ms. Ryan’s
mother’s health needs and that these had increased since the motor vehicle
accident. She was aware of one previous motor vehicle accident, but did not
think that Ms. Ryan had suffered any injury in that accident. She was not
aware that Ms. Ryan suffered from diabetes or osteoporosis.

Sharon Vaughan

[58]        
Ms. Vaughan is Ms. Ryan’s younger sister. She describes their
relationship as very close. It is her testimony that they used to have a very
active social relationship. They would go dancing frequently, attend concerts
together. They attended dance classes together. She stated that her sister was
very fit and active.

[59]        
She testified that now they no longer do anything together. Ms. Ryan
is tired, not wanting to do anything. Ms. Ryan helps out less with her
mother’s housekeeping and gardening. She testifies that Ms. Ryan had
always wanted to learn to ride a motorcycle and Ms. Vaughan had signed
them up to take lessons together, but then Ms. Ryan cancelled.

[60]        
Ms. Vaughan described the assistance that their mother has required
in recent times. She has difficulty preparing meals, doing housework and
gardening. She suffers frequent falls. She underwent back surgery about seven
months ago and required a great deal of care. Ms. Vaughan stated that Ms. Ryan
took a larger role in caring for their mother.

[61]        
Ms. Vaughan was aware that Ms. Ryan suffered from osteoporosis,
but was unsure of the dates of her diagnosis. She did not know that Ms. Ryan
had diabetes. She was aware that there had been a previous motor vehicle accident,
but she was not sure of the date, nor was she aware that Ms. Ryan had
suffered neck and shoulder injuries in that accident.

Gerald Zelter

[62]        
Mr. Zelter has been in a relationship with Ms. Ryan for 12
years. He stated that Ms. Ryan has become less active since the 2008
Accident. They used to rollerblade, play as a family at the beach, golf, and go
dancing. He stated that since the 2008 Accident she has been far less active. Their
sexual intimacy has suffered. It was his testimony that following the earlier
accidents Ms. Ryan was in pain but remained active. He says that she had
been employed as a waitress since they had met.

Expert Evidence

Dr. Glenn Anderson

[63]        
Dr. Anderson is a family physician who started treating Ms. Ryan
after the 2008 Accident. It was his opinion that in that accident she suffered
soft tissue injuries to her neck and shoulder girdle which were complicated by
the fact that she had been in previous motor vehicle accidents and suffered
from scoliosis. It was his opinion that she should have ongoing support for the
pain related to her neck such as massage, physiotherapy, acupuncture and
chiropractic sessions. He was of the opinion she could experience improvement,
but was not likely to recover completely.

[64]        
Dr. Anderson did not express an opinion regarding the cause of the
numbness and tingling Ms. Ryan described in her right arm.

[65]        
Dr. Anderson had not seen Ms. Ryan prior to the 2008 Accident
and, therefore, had no knowledge of her physical state or her range of motion
prior to that accident.

[66]        
It was Dr. Anderson’s opinion that, because of her osteoporosis, Ms. Ryan
should refrain from any activities which entail a high risk of fracture such as
rollerblading.

Dr. Stanley Jung

[67]        
Dr. Jung is a chiropractor with additional training and a special
interest in rehabilitation. It was his opinion that Ms. Ryan suffered soft
tissue injuries to the neck and upper back in the 2008 Accident. He was also of
the opinion that the presentation of pain in Ms. Ryan’s neck suggested
mechanical pain from the posterior elements of her spine such as facet joints. He
was of the opinion that the headaches Ms. Ryan experiences are due to
cervicogenic factors. He did not express an opinion with respect to the
peripheral nerve symptomology and suggested there be further investigation of
this condition.

[68]        
In Dr. Jung’s opinion, Ms. Ryan’s prognosis for recovery is
poor given her involvement in previous motor vehicle accidents, the degree of
degeneration in her spine and the scoliosis. It was his opinion that further
chiropractic treatment would not be useful with respect to the injuries
sustained in the motor vehicle accident. He recommended that Ms. Ryan
continue with massage over the next few months with a goal of tapering off the
treatments and ultimate discharge.

Dr. Paul Bishop

[69]        
Dr. Bishop is a physician who is a specialist in orthopaedics. He is
also qualified as a chiropractor and holds a PhD in pathology. It was Dr. Bishop’s
opinion that it was reasonable to expect Ms. Ryan would have experienced
the pain symptoms she has described during the acute phase of her clinical
course, that is, 12 to 16 weeks after the accident. However, there did not
appear to be a strong temporal association between the onset of the right upper
extremity symptoms and the 2008 Accident. In addition, he cannot attribute the
ongoing complaints of pain to the trauma of the accident. He recommended
additional investigations be conducted to clarify the origin of the right upper
extremity symptoms. He felt that a bone scan would help to clarify the origin
of Ms. Ryan’s ongoing neck symptoms.

[70]        
Dr. Bishop stated that the most recent clinical practice guidelines
for soft tissue spinal injury recommend against any prolonged passive therapy
such as physiotherapy, massage therapy. In addition, he knows of no studies
that validate the use of chiropractic spinal manipulation in this clinical
setting.

Damages

Non-Pecuniary Loss

[71]        
Ms. Ryan’s position is that the injuries suffered in the 2008
Accident caused serious and permanent impairment that affected every aspect of Ms. Ryan’s
life. Ms. Ryan seeks an award for non-pecuniary loss in the range of
$75,000 to $80,000 citing Testa v. Mallison, 2009 BCSC 957 and Gold v.
Joe, 2008 BCSC 865.

[72]        
The defendants do not deny that Ms. Ryan was injured in the 2008
Accident, but question the severity and duration of such injury. It is the defendants’
position that an appropriate award for non-pecuniary loss would be in the order
of $20,000 to $25,000 citing McAvena v. Kabatoff, 2003 BCSC 629, Kanani
v. Misiurna, 2008 BCSC 629, Farrant v. Laktin, 2008 BCSC 234, Anderson
v. Dwyer, 2010 BCSC 526, Bourdin v. Ridenour, 2009 BCSC 1295 and Loik
v. Hannah, 2009 BCSC 1196.

[73]        
Ms. Ryan’s complaints arise from a collision of very low impact,
producing minimal damage to her vehicle and none to the defendant’s. Her
injuries are said to be soft tissue injuries for which there are no objective
indicators. In such circumstances Ms. Ryan’s credibility is of particular
importance since the physicians are to large extent dependent upon her
subjective reports in reaching their opinions.

[74]        
I find Ms. Ryan to be a poor historian. It is my impression that
she minimized the extent and duration of the injuries she suffered in previous
accidents, both in her testimony and in her reports to physicians in
preparation for this litigation. She also minimized the significance of the
other medical conditions with which she was dealing. It is her testimony that
the burden of taking care of her mother did not interfere with her work or with
her social life because her other siblings would fill in. However, this was
inconsistent with what she told Dr. Anderson. He reported that she was in
considerable distress concerning the care of her mother on several occasions,
reporting that the disproportionate burden fell upon her and that her siblings were
not providing sufficient assistance.

[75]        
Ms. Ryan testified that there was no scarcity of work for her as a
piano tuner. It was her testimony that before the 2008 Accident she would tune three
pianos a day. She says this would be confirmed by her journal. However she did
not produce the journal in the litigation. I reviewed the document she did
produce for 2008 billings which showed only four occasions that appear to
reflect three tunings in one day during 2008, her most profitable year. Thus,
the document she did produce is not consistent with her testimony with respect
to a pattern of tuning three pianos a day prior to the 2008 Accident. In
addition, those records do not reflect a regular pattern of working full weeks,
that is five days a week, prior to the 2008 Accident.

[76]        
I did not find the evidence of the collateral witnesses to be
particularly helpful. Mr. Marten had only one experience working with Ms. Ryan
after the 2008 Accident. Ms. Lucas, Ms. Arnold and Ms. Vaughan were
not aware of other relevant medical conditions and previous accidents. Their
accounts of Ms. Ryan’s apparent absence of symptoms in the years prior to
the 2008 Accident is at odds with the reports reflected in the clinical
records. Mr. Zelter stated that Ms. Ryan had been working as a
waitress for many years, but that was inconsistent with her income tax returns.

[77]        
In each case, the testimony did not assist in identifying the 2008
Accident as the cause for the changes observed. This is problematic in that
there are many factors unrelated to the 2008 Accident which could account for
the changes described by the witnesses.

[78]        
The medical evidence is of limited assistance since the opinions are to
a great extent dependent upon Ms. Ryan’s subjective reports. In addition, Dr. Anderson
had not treated Ms. Ryan before the 2008 Accident and so had no personal
knowledge of Ms. Ryan’s condition prior to the 2008 Accident. Ms. Ryan
did not provide Dr. Jung with a full history. Finally, the additional
investigations that Dr. Jung and Dr. Bishop recommended have not been
undertaken. In the result, there is no medical opinion that bears on the
causation of the neurological symptoms Ms. Ryan now complains of in her
right arm.

[79]        
I accept that Ms. Ryan suffered mild to moderate soft tissue
injuries to her neck and shoulder girdle in the 2008 Accident. As a consequence,
she experienced pain and stiffness in her neck, upper back and shoulder and headaches.
I accept that these symptoms have lingered. While it is the case that many,
perhaps most people, would not have suffered such injuries in such an accident,
I accept that the combination of her previous injuries, scoliosis and
osteoporosis would render her more fragile and susceptible of injury.

[80]        
I have concluded, however, that the effect upon Ms. Ryan, her
activities and enjoyment of living from these injuries has been exaggerated. There
are many factors contributing to Ms. Ryan’s reduced energy and restricted
activity which are entirely unrelated to injury suffered in the 2008 Accident. For
example, Dr. Anderson stated that Ms. Ryan should not participate in
high impact activities because of the risk of fracture associated with her
osteoporosis. Caring for Ms. Ryan’s mother has created significant demands
on Ms. Ryan’s time and has been a source of stress and distress. 

[81]        
I find that Ms. Ryan has not established that the symptoms of
numbness and tingling in her right arm and hand were the result of the 2008
Accident. There is no medical opinion to this effect. The symptoms arose long
after the accident and there was no explanation provided as to the mechanism by
which these new symptoms would arise so long after the event. There are other
conditions, for example, her diabetes, which could produce such symptoms.

[82]        
As stated, I have concluded that Ms. Ryan suffered soft tissue injury
in the 2008 Accident. Her symptoms included neck, shoulder and back pain and
headaches. The symptoms linger to the date of trial. However, I have also
concluded that Ms. Ryan has exaggerated the extent of her injuries and
their impact on her life. While the facts of each case are unique, it is my
view that the circumstances of this case more closely resemble the
circumstances of the cases cited by the defendants.

[83]        
I award $25,000 in non-pecuniary damages.

Special Damages

[84]        
Ms. Ryan seeks $3,552.44 as special damages made up of the
following:

It was Ms. Ryan’s submission that she undertook these
treatments and incurred these expenses on the advice of her physician.

[85]        
It was the position of the defendants that only the special damages
claimed up to 16 weeks after the motor vehicle accident, that is March 24,
2009, are appropriate in a total amount of $885.

[86]        
It is not disputed that Ms. Ryan incurred all of the expenses
claimed. I am satisfied that they were incurred as a result of the motor
vehicle accident at issue in these proceedings. In addition, Dr. Anderson,
Ms. Ryan’s family doctor, supported these expenditures as appropriate. I
accept the amount claimed by Ms. Ryan is reasonable in the circumstances
and award $3,552.44 as claimed.

Cost of Future Care

[87]        
At the time of trial Ms. Ryan was not taking any form of treatment
for the injuries suffered in the 2008 Accident. She is receiving treatment from
her chiropractor, but with respect to her scoliosis. This continues the pattern
of treatment she had formed prior to the 2008 Accident.

[88]        
Dr. Bishop was of the opinion that the best evidence is that
passive modalities of physiotherapy and massage treatment do not provide
benefit, particularly this long after the accident. He stated that there was no
evidence that chiropractic intervention would be useful. He recommended a
return to normal activities.

[89]        
Dr. Jung recommended against chiropractic intervention for the
symptoms arising from the injury sustained in the 2008 Accident. His report,
authored in December 2010, was based on an examination conducted in October
2010. At that time, he recommended tapering off and ceasing massage therapy
over the next few months. Thus, by the date of trial according to this proposed
schedule, massage therapy would have ceased. He recommended no other form of
treatment other than for Ms. Ryan to remain physically active.

[90]        
Dr. Anderson did state in his opinion that Ms. Ryan should
have ongoing support for medical treatments such as massage, physiotherapy,
acupuncture and chiropractic sessions. However, he provided no suggested
timing, frequency or duration. In addition, by February 2009 Dr. Anderson
had noted that Ms. Ryan was not deriving benefit from the chiropractic
interventions and that they should be discontinued as treatment for the
injuries suffered in the 2008 Accident.

[91]        
In all the circumstances, I have concluded that Ms. Ryan has not
made a case for an award for the cost of future care.

Loss of Income

[92]        
Ms. Ryan concedes she suffered no loss of income as a result of the
2008 Accident in 2008 or 2009. She asserts she suffered an income loss in 2010
of $10,000 to $15,000 based upon lost income from waitressing, together with
wage loss as a piano tuner. With respect to future wage loss, counsel submits
that there should be an award of $100,000 for future wage loss based upon a
$10,000 per year decline in income.

[93]        
The position of the defendants is that Ms. Ryan has proved no wage
loss, past or future. Counsel submits it is inexplicable that Ms. Ryan
lost income in 2010 as a result of the 2008 Accident, when she had lost no
income in 2008 or 2009. Counsel submits that there is simply no mechanism that
would account for such a loss relating to the accident. On the other hand,
there are numerous issues that could account for slightly lower earnings in
2010 that have nothing whatsoever to do with the motor vehicle accident. These
include the need to attend to Ms. Ryan’s mother, the new diagnosis of
diabetes, chest pains, high blood pressure, problems with her left knee,
scoliosis, osteoarthritis or the degenerating spinal condition disk
desiccation, as shown on the MRI. Moreover, Ms. Ryan acknowledged that
2008 was an abnormally high year of income. It appears that 2009 was also
somewhat of an abnormally high year. Previously, her income fell roughly in the
range of what she earned in 2010.

[94]        
I have concluded that, for the reasons advanced by the defendants, Ms. Ryan
has failed to establish entitlement to any past or future wage loss. Ms. Ryan
has not established that her income earning ability has diminished since the
accident. No time off work has been established. She has not established any
loss of income to the date of trial with respect to her piano tuning business.

[95]        
With respect to the future, Ms. Ryan has not established that she
is or will be undertaking less work as a result of the injuries sustained in
the 2008 Accident. Moreover, evidence does not, in my view, support a
conclusion that Ms. Ryan’s ability to earn income has been impaired by the
2008 Accident.

[96]        
With respect to wage loss said to arise from waitressing, I am not
satisfied that it is likely that Ms. Ryan would have returned to this work
if the 2008 Accident had not occurred. The Record of Employment is not
consistent with a seasonal lay off. Rather it reflects that Ms. Ryan quit
with no anticipated call back. Thereafter there were additional demands on her
time arising from her mother’s care. I do not accept that her siblings would
have filled in; that is not consistent with what Ms. Ryan was telling Dr. Anderson
at the time. Moreover, there is no evidence that Ms. Ryan has made any
attempt to return to this work in the years since the 2008 Accident. Thus, I am
not satisfied that Ms. Ryan has experienced or will experience any wage
loss arising for waitressing. In addition, I am not satisfied that Ms. Ryan’s
ability to perform such work is impaired by injuries suffered in the 2008
Accident.

[97]        
In Perron v. Lalai, 2010 BCCA 140, Madam Justice Garson, for the
court, noted at para. 32:

A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss.

In this case, I find that Ms. Ryan has not
discharged this burden.

Conclusion

[98]        
In the result, Ms. Ryan is awarded non-pecuniary damages of $25,000
and special damages of $3,552.44.

“Ross J.”