IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110929

Docket: M095712

Registry:
Vancouver

Between:

Tina
Fiorda

Plaintiff

And

Geneve
Say and Corrine Say

Defendants

– and –

Docket: M095713

Registry:
Vancouver

Between:

Tina
Fiorda

Plaintiff

And

Bosko
Stajich

Defendant

Before:
The Honourable Madam Justice H. Holmes

Reasons for Judgment

INTRODUCTION

[1]            
Tina Fiorda sustained soft tissue injuries in two motor vehicle
accidents, for which the defendants acknowledge liability.  The first accident,
on April 20, 2008, was the less serious, and the parties agree that Ms. Fiorda’s
injuries from that accident had almost completely resolved by the time of the
second accident, on  August 2, 2009.  It is the effects of her injuries from
the second accident which are the focus of this “fast-track” litigation.

[2]            
Ms. Fiorda, who is 56 years of age, works as a costume designer for
the film industry. Her position frequently requires working long and intense
days over periods of weeks.  The main points of dispute relate to the extent to
which Ms. Fiorda’s injuries have limited and will continue to limit her
ability to earn income as a costume designer, and whether, to mitigate her
damages, Ms. Fiorda ought to take less physically demanding employment.  The
sufficiency of Ms. Fiorda’s efforts to mitigate her damages by taking
recommended medical treatment is also in issue.

[3]            
Most of the relevant facts are not in dispute.  I will briefly outline
them, indicating any areas of disagreement and my findings, before discussing
each of the heads of damages claimed.

FACTS

The First Accident – April 20, 2008

The Circumstances of the Accident

[4]            
The first accident, on April 20, 2008, occurred on Hastings Street near
Willingdon Avenue in Vancouver, when the defendant’s vehicle suddenly changed
lanes and sideswiped Ms. Fiorda’s vehicle.  The rear passenger side of the
defendants’ van struck Ms. Fiorda’s fender on the driver’s side.  No
emergency vehicles were called, and both vehicles drove away.  The damage was
minor, and was repaired.

Injuries from the First Accident

[5]            
From that accident, Ms. Fiorda suffered a headache, pain to her
neck, upper back, and mid back, and pinching in the left shoulder area.

[6]            
Ms. Fiorda was working on a television show at the time, although
not on the day of the accident.  She arranged to see her family physician on
approximately May 6 or 7, 2008, but her appointment was confused with another
and she rescheduled to May 12, 2008.  The family physician recommended that Ms. Fiorda
remain active and that she attend physiotherapy.  Ms. Fiorda attended a
total of thirteen physiotherapy sessions between May 12 and September 30, 2008,
and found them helpful.

[7]            
She missed no employment as a result of the first accident.

[8]            
Ms. Fiorda’s injuries from the first accident continued to improve,
and by the time of the second accident were almost completely resolved.

The Second Accident – August 2, 2009

The Circumstances of the Accident

[9]            
The second accident, on August 2, 2009, took place when Ms. Fiorda
was stopped at a red light on Boundary Road at the intersection with Kitchener
Street, and the defendant Mr. Stajich’s large car rear-ended her vehicle
with considerable force.  Ms. Fiorda’s vehicle was pushed half-way into
the intersection.

[10]        
Ms. Fiorda was able to drive her vehicle away from the scene, but neither
vehicle was repaired after the accident.  However, as the defendants note, both
vehicles were relatively old, Ms. Fiorda’s a 1991 Toyota Celica with more
than 300,000 kilometres on the odometer.

Injuries from the Second Accident

[11]        
Ms. Fiorda was more seriously injured in the second accident.  She
experienced headaches, pain and tightness in her neck and back, and discomfort
and some pain in her left shoulder, chest, wrists, biceps, and left knee.

[12]        
She almost immediately made an appointment to see her family physician,
and saw her on August 6, 2009.

[13]        
A course of chiropractic treatment was not particularly helpful. 
Physiotherapy helped “to a degree”, and Ms. Fiorda attended about eighteen
sessions. She tried some Pilates sessions later, starting February 2010, which
helped strengthen her core muscles and improved her posture, but did not help
with the pain.

Post Second Accident:  Employment and Medical Condition and Care

[14]        
Ms. Fiorda was working on a film project, “The Stranger”, at the
time of the second accident, and continued to do so without taking time off
until the project finished on September 4, 2009.  She explained that although
she was in intense pain in numerous areas, she felt she had a responsibility to
deliver the project.  She relied on her assistant more than usual, and
described her own working experience as “terrible”.

[15]        
After the conclusion of “The Stranger” in September 2009, Ms. Fiorda
did not work again in the film industry until June 2010.

[16]        
Ms. Fiorda does not attribute that result entirely to her
injuries.  She testified that she was still dealing with the pain resulting
from the second accident, and needed time for recovery.  However, she also
acknowledged that the film industry almost shut down during February and March
2010 because of the Winter Olympics in Vancouver.  Also, Ms. Fiorda
candidly offered that the conclusion of “The Stranger” coincided with the
publication of the book she co-authored with her sister, Tilda Cameron, and
allowed her an opportunity to promote the book through radio and other
interviews.

[17]        
Ms. Fiorda and Ms. Cameron had begun writing the book in 2004,
but wrote most of it in 2007 and early 2008.  Described as a spiritual/metaphysical
piece, the book was produced from information “channelled” from a Ouija board,
then dictated into a digital recorder, and ultimately transcribed.

[18]        
Ms. Fiorda and Ms. Cameron each enjoyed producing the book,
and hoped it would become a business venture.  Ms. Fiorda financed its
publication and hired a publicist, for a total cost of between $3,000 and $4,000. 
To promote the book, Ms. Fiorda and Ms. Cameron together took part in
more than seventy interviews, most by telephone and lasting between 1 and 2
hours.  However, despite media interest and some sales, the book has not thus far
produced an income for them.

[19]        
Ms. Fiorda took up three film projects between June and October
2010, the latter two of which overlapped.  By this time, she had some relief
from her symptoms in her chest and arms, but none of her injuries had resolved.
She testified that the work exacerbated her symptoms, leading to pain and
flare-ups that made her work very difficult and woke her in the night from even
a dead sleep.  She testified that her energy was low, but she felt she had no
choice but to finish the projects.

[20]        
Ms. Fiorda has not worked in the film industry since October 2010.

Medical Condition and Care Since Last Employment in October 2010

[21]        
After completing the projects in October 2010, Ms. Fiorda was still
in pain and very concerned about her ability to work in the film industry in
the future.  Her mood suffered, and she sought medical help for depression in
December 2010.  Ms. Fiorda has a long-term history of low-grade
depression,

[22]        
In late December 2010, she began an active rehabilitation program with
Back in Motion, which her physician had recommended several times.  It helped
with her range of motion and reduced both morning stiffness and some of her
pain.  She attended thirty sessions between December 2010 and the end of
February 2011.

[23]        
It is common ground that a viral illness unrelated to the accidents
prevented Ms. Fiorda working in early 2011 and also interrupted her
rehabilitation at Back in Motion.  The virus caused a high fever and body pain,
and required two visits to a hospital emergency room.  Ms. Fiorda turned
down at least two projects in March 2011 because she was still suffering from
its effects.

Medical Evidence Concerning the Injuries

[24]        
Dr. Catherine Reilkoff was Ms. Fiorda’s family physician for
more than 28 years, and treated her after each of the two accidents.  In her
report dated April 5, 2011, Dr. Reilkoff summarized the injuries from the
respective accidents and set out her prognosis as follows:

In summary, Ms. Fiorda was involved in 2 motor vehicle
accidents.  The first one was rather minor and she made an effective recovery;
the second one was much more severe and she continued to have symptoms as
documented in the body of this letter. … She is also struggling with her
depression, which may well have been triggered with the chronic pain that is a
result of this accident. With regards to her future employability, she has
worked through out the time of her recovery; albeit she is not feeling up to
doing her full job at this time and I feel the accident has impacted in her
ability to work as a costume designer.  It has impacted her leisure activities
in that she is less able to do aggressive physical activities, but she does
continue to be able to attend fitness classes, walking and hiking.

The MVA of 2009 has left Ms. Fiorda
with some degree of chronic pain.  Despite the pain, she has continued to live
an active life and attend work.  She is not able to do these activities to her
preaccident level.

[25]        
Dr. Gabriel Hirsch, specialist in physical medicine and
rehabilitation, conducted an independent medical assessment on April 4, 2011.

[26]        
Dr. Hirsch concluded that in the first accident, Ms. Fiorda
sustained relatively minor injuries to her neck, upper back, and shoulder
girdle region, from which she had made a good recovery by the time of the
second accident.  He concluded that absent the second accident, Ms. Fiorda
probably would have made a full recovery from the first.

[27]        
Dr. Hirsch concluded that the second accident caused injuries to Ms. Fiorda’s
neck, thoracic spine, and lumbar spine, which probably involved soft tissue
structures, such as muscles, tendons, and ligaments.  Given the accident
mechanism as Ms. Fiorda had described it, it was also possible that Ms. Fiorda
sustained an injury to a cervical facet joint.

[28]        
Dr. Hirsch recommended that Ms. Fiorda carry out a regular
exercise program, ideally in a well-equipped community centre or gymnasium. 
Because Ms. Fiorda had recently completed a functional restoration program
under the guidance of a physiotherapist and kinesiologist, he felt she should
be able to continue with a maintenance program on her own.  He recommended
particular components of a regular exercise program for Ms. Fiorda to
follow.

[29]        
Dr. Hirsch also suggested that Ms. Fiorda consider trigger
point injections into the neck and shoulder girdle region, her most symptomatic
areas.  He noted that those injections are funded by the Medical Services Plan.

[30]        
Dr. Hirsch noted that “there is some uncertainty” about whether Ms. Fiorda
can continue in her work as a costume designer on a sustainable basis because
of the long hours and many consecutive days, which do not allow her the
opportunity to recuperate from a flare-up.

NON-PECUNIARY DAMAGES

[31]        
The rationale for an award of non-pecuniary damages and the principles
that apply are not in dispute and need not be repeated.  The parties agree also
that each case is to be decided according to its own specific circumstances.

[32]        
As to those circumstances, I accept Ms. Fiorda’s evidence in its
entirety.

[33]        
She described her ongoing injuries as including some headache
discomfort, neck pain and tightness, upper back and shoulder pain, pinching of
the left shoulder blade, and pain in the mid and lower back.  Her pain
increases with extensive sitting, lifting heavy objects, long walks, and
serious exertion.  She therefore has stopped hiking with her friend, and takes
part only in less strenuous aerobics sessions.

[34]        
Of particular significance to the assessment of Ms. Fiorda’s
non-pecuniary loss is the effect of her injuries on her ability to continue to
succeed in her chosen field of costuming work in the film industry.  Her sense
of self-worth and achievement, as well as much of her satisfaction and
pleasure, depend heavily on her involvement and success in this field.  Some
understanding of the nature and demands of her work will therefore help in the
assessment of how Ms. Fiorda’s injuries have affected her enjoyment of
life, as well as in relation to her claims, to be discussed later, for past income
loss and loss of future earning capacity.

[35]        
Ms. Fiorda and other witnesses from the film industry explained that
the costume designer heads the costuming team, and bears responsibility for all
aspects of the costuming process.  These include hiring the costuming
team; “breaking down” and analyzing the film script to determine the costumes
required for actors, stunt workers, and doubles, and planning for duplicate
costumes where the first will be damaged in the course of filming; liaising
with the actors; shopping and sourcing for the necessary clothing, shoes, and
accessories, often offering as many as three alternative options for each
costume; instructing extras on what to wear and bring to the set; designing
some of the clothing and giving directions for it to be made; overseeing the
truck that stores the various costumes and equipping it with a “kit” with
warm-up and other clothes for the actors; arranging for costume fittings,
alterations, and dyeing; managing the costuming budget for the project; liaising
throughout with the director; and “wrapping out” the show after filming by
unloading the truck, returning any clothing rentals or racks, and returning her
office (computer, printer, rolling racks) to her storage locker.

[36]        
The evidence made clear that the job has physical and emotional demands
and stresses.  These arise in part from the length and intensity of the
workdays, which are typically between 12 and 16 hours, five days per week and
sometimes more.  Deadlines are frequent and unforgiving, because of the high
cost of filming.  As Ms. Fiorda put it, you deliver on time, there is no
room for error, and “no” is not an answer.

[37]        
Ms. Fiorda testified that the job entails different physical
demands at different stages of a project.  Near the beginning, when most of her
time is spent analyzing the script, the demands arise from sitting long hours
at her computer.  Later in the project, they arise from spending long days
almost entirely on her feet, often walking long distances through many shopping
malls, carrying vast amounts of purchased clothing.

[38]        
Ms. Fiorda has taken multiple treatments that have provided some
relief from her discomfort and pain, but not a cure.  Ms. Fiorda is a
determined person, and for the most part does not allow her symptoms to overwhelm
her life.  However, the demands of her work as a costume designer cause her
understandable anxiety about her future, because they have shown themselves to
aggravate her symptoms past a level she can manage on a long-term basis.  It
appears that even with further active rehabilitation and regular gymnasium
exercise, as well as Pilates or yoga, Ms. Fiorda will continue to suffer
some daily pain for the foreseeable future.

[39]        
The defendants say that Ms. Fiorda’s symptoms have had relatively
little effect on her leisure or recreational activities, which have not changed
much, except that they are less strenuous than they were before.

[40]        
However, for Ms. Fiorda, her work is her passion, and the source of
her identity and sense of accomplishment.  I accept her position that her
enjoyment of life is affected not only by her leisure and recreational
activities, but largely also by giving her all to her work, and achieving
satisfaction and recognition for doing so.

[41]        
Ms. Fiorda submits that the case authorities suggest a range of
damages for chronic soft tissue injuries such as hers of between $55,000 and $80,000,
and seeks a total award of $60,000 for non-pecuniary loss from both accidents. 
She relies on the following cases: Shearsmith v. Houdek, 2008 BCSC 997;
Wiebe v. Neal, 2004 BCSC 984; Helgason v. Bosa, 2010 BCSC 1756;
and, Gold v. Joe, 2008 BCSC 865.

[42]        
 The defendants suggest an award of $5,000 in relation to the first
accident, and $25,000 in relation to the second.  They rely on the following
authorities: Boyd v. Shortreed, 2009 BCSC 1468; Johannson v.
National Car Rental (Canada) Inc., 2008 BCSC 1873; Jahn v. Manesiotis,
2003 BCSC 1260; Rana v. Boparai, 2007 BCSC 1182; and, Gendron v.
Moffat, 2010 BCSC 1231.  The defendants submit that although the second
accident was more serious than the first, the force was not massive and Ms. Fiorda
was able to drive her vehicle home.  Moreover, she missed no work at all and
turned down no work as a result of that accident, and has carried on her other
activities virtually unchanged.  These observations suggest, the defendants
say, that her injuries are not severe.

[43]        
In my view, in the cases on which Ms. Fiorda relies the injuries
had more effect on the plaintiffs than did Ms. Fiorda’s injuries on her. 
I say that mindful of Ms. Fiorda’s stoicism, a factor that generally
should not penalize a plaintiff in an award of non-pecuniary damages: Stapley
v. Hejslet, 2006 BCCA 34 at para. 46(j), 263 D.L.R. (4th) 19.  But in Wiebe
v. Neal, for example, where the award was $50,000, the plaintiff suffered
profound and chronic sleep disruption and persistent headaches.  In Helgason
v. Bosa, where the award was $60,000, the injuries limited the plaintiff’s
work around the house, her relationship with her husband, her physical fitness
activities, and her relationship with her friends.  In Gold v. Joe,
where the award was $80,000, the plaintiff millwright had to move house because
he could no longer manage the garden, and he also gave up swimming and
motorcycling and curtailed numerous recreational activities as a result of his
injuries.  The effects in these authorities were more severe than, as I find, Ms. Fiorda’s
injuries were on her.

[44]        
But, conversely, the cases on which the defendants rely appear to have
involved less significant effects on those plaintiffs than Ms. Fiorda has
suffered.  For example, in Boyd v. Shortreed, where the award was
$25,000, the plaintiff’s mid-back pain, which was her most significant
complaint, was 85% resolved by the time of trial four years after the
accident.  In Johannson, v. National Car Rental (Canada) Inc., where the
award was $15,000, the plaintiff’s pain was largely resolved within nine
months.  In Jahn v. Manesiotis, where the award was $12,500 the plaintiff’s
injuries were fully resolved within 15 months of the accident.  In Gendron
v. Moffat, where the award was $25,000, the plaintiff’s injuries were
substantially resolved by the time of trial, slightly more than two years after
the accident.  In Rana v. Boparai, where the award was $20,000, the
relatively modest effect of the plaintiff’s injuries was reflected in the fact
that she sought an award of between $25,000 and $35,000.

[45]        
In my view, the particular circumstances of Ms. Fiorda’s case
support an award of $40,000.

[46]        
However, I find some failure to mitigate her damages in Ms. Fiorda’s
delay in pursuing the active rehabilitation programme Dr. Reilkoff
recommended.  Despite recommendations on February 2, 2010, May 25, 2010, and
October 25, 2010 (the latter recommendation after Ms. Fiorda’s return to
work with consequent pain flare-ups), Ms. Fiorda did not begin the
programme until December 2010.  I conclude that an earlier start to the
programme, when Dr. Reilkoff first recommended it, would likely have
helped Ms. Fiorda recover more quickly and would have allowed her to cope
better with her return to the demands of her work in June 2010.

[47]        
The award for non-pecuniary loss will therefore be reduced by 20% to $32,000. 
Of that amount, $4,000 relates to the first accident, and the balance to the
second.

PAST INCOME LOSS

[48]        
Ms. Fiorda testified that she has not sought out work since
completing the projects in October 2010 because she dreads a recurrence of the
pain she then experienced, and is afraid that she will not be able to fulfill
the responsibilities of the job.

[49]        
She estimates that without the injuries from the second accident she
could have taken on at least two film projects between then and August 2011. 
She claims damages of $18,140, equivalent to two times her average earnings (in
2009 and 2010) of $9,070 per project.

[50]        
Ms. Fiorda makes no claim for past income loss in relation to the
first accident.  Nor does she claim for income loss during 2009, when she spent
time promoting her book, or during the Olympics period in the first part of
2010, or when she was seriously ill because of a virus in early 2011.

[51]        
The defendants submit that Ms. Fiorda has suffered no wage loss to
date from either accident.  They submits that she has continued to work at her
job, except when reasons other than the accidents have intervened, or when she
has chosen to devote herself to other activities, such as promoting her book
and, to some degree, cooperating with her sister in writing a second.

[52]        
However, I do not agree.  I accept that without the injuries from the
second accident, Ms. Fiorda would likely have taken on approximately two
film projects, as she estimates.

[53]        
With a deduction to take into account the insufficient mitigation I have
already discussed, the award of past income loss from the second accident will
be $14,000.

LOSS OF EARNING CAPACITY

[54]        
The governing principles are not in dispute: see Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.); Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R.
(3d) 158; Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44; and Perren
v. Lalari, 2010 BCCA 140, 3 B.C.L.R. (5th) 303.

[55]        
Ms. Fiorda submits that her earning capacity is impaired because,
with her non-resolved injuries, she will need time between projects to allow
her to recover from the intense physical and emotional demands of her work. 
This will require a reduction in the number of projects she takes on in a year,
so as to increase the length of the periods between jobs and to avoid
overlapping projects.

[56]        
Before the accidents, Ms. Fiorda usually had time off between
projects that could be as short as a weekend or as long as several months.  Sometimes
her projects were back-to-back or, for less demanding projects, overlapped for
a period.

[57]        
Following the approach in Crane v. Lee, 2011 BCSC 898, Ms. Fiorda
seeks an award equivalent to two years’ average income ($63,000 per year),
namely $126,000.

[58]        
The defendants submit that Ms. Fiorda has failed to establish that
“there is a real and substantial possibility of a future event leading to an
income loss”: Perren v. Lalari, at para. 32.  They submit that Ms. Fiorda
turned down no work because of the effects of the accident, and that, on the
medical evidence, she is physically capable of performing all of the tasks in her
chosen work.

[59]        
While the defendants’ submissions are accurate if narrowly understood,
they take no account of the fact, as I find, that Ms. Fiorda needs and
will continue to need to space her film projects further apart than she did in
the past.  The medical evidence supports the conclusion that because of the
intensity of the hours and duties of her work, she will need time for
recuperation and recovery between projects.  She will need to take on fewer
projects, and this will necessarily impair her earning capacity.

[60]        
The defendants submit that Ms. Fiorda could maintain her earning
power by taking on a different type of work, with less demanding hours and
physical demands.  Ms. Fiorda has numerous qualifications and solid
experience in related and in different fields.  For example, before turning to
costuming for the film industry, she founded and developed a highly successful
clothing manufacturing business. 

[61]        
However, I am not persuaded that Ms. Fiorda’s financial prospects
would be better in other fields of endeavour in the short- or medium-term
future, while her injuries continue to have effect.  In my view Ms. Fiorda’s
economic future is best-served in the field of costume design, despite the
limitations of her injuries.  Ms. Fiorda is skilled, well-established, and
respected in that field.  Work seems to be fairly easily available to her,
despite the vagaries of the industry.

[62]        
Although I agree with Ms. Fiorda that she will need to limit the
number of films she takes on in a year in order to avoid overlaps or back-to-back
projects, I am not persuaded that the effect on her income must or will
directly correspond.  Ms. Fiorda is resourceful, with a history of
creative initiatives with income-earning potential.  In my assessment, with
more “down time” as a costume designer she will likely supplement her income
through other part-time or intermittent ventures.

[63]        
I take into account also that with increasing age, Ms. Fiorda may
in any event have had to slow the pace at which she accepted film projects.

[64]        
As to mitigation, after her viral illness Ms. Fiorda delayed again
in resuming the active rehabilitation programme she had begun in December
2010.  This again, I find, likely further delayed her recovery, and indicates inadequate
mitigation of her damages.  To the extent that Ms. Fiorda delayed because
she was unsure about funding for the program — which was in fact available —
and failed to take the initiative to inquire because of the effects of her recurrent
depression, it was depression which, I find, her family physician likely could
have alleviated with different medication, had Ms. Fiorda sought her
advice.  Ms. Fiorda instead substituted a non-prescribed natural remedy in
place of the prescribed medication with side effects she disliked.  I agree
with the defendants that in the spring and early summer of 2011, Ms. Fiorda
thus unreasonably allowed her depression to limit her motivation and ability to
resume the active rehabilitation program that would have helped her overcome
her injuries.

[65]        
 In all the circumstances, the award for impaired earning capacity will
be equivalent to eight months’ income, namely $42,000.

COST OF FUTURE CARE

[66]        
Ms. Fiorda seeks an award of $5,000, to allow her to accommodate Dr. Hirsch’s
recommendations that she continue to do an exercise program in a gymnasium
setting.

[67]        
The defendants submit that Ms. Fiorda would likely or should have
had a gym membership regardless of the motor vehicle accidents, but I do not
agree.  She may reasonably have chosen to stay fit by other means.

[68]        
The award for the cost of future care is $5,000.

SPECIAL DAMAGES

[69]        
Special damages are agreed at $1,692, and the award will be in that
amount.

SUMMARY

[70]        
The damages awarded are as follows:

“H. Holmes, J.”

The Honourable Madam Justice H. Holmes