IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111021

Docket: M123476

Registry:
New Westminster

Between:

Amanda
Paradis

Plaintiff

And:

Daljit
Kaur Gill

Defendant

Before: The Honourable Mr. Justice
D.M. Masuhara

Reasons for Judgment

I.                
Introduction

[1]            
This is a personal injury action.  Ms. Elizabeth Amanda Paradis was
in a motor vehicle accident on December 24, 2007 at the intersection of
134^th St. and 81B Ave., in Surrey, B.C. (the “Accident”).  This
proceeding was brought under Rule 15-1 of the Supreme Court Civil Rules.

[2]            
Liability is admitted by the defendant.

[3]            
The plaintiff says that as a result of the Accident she suffered soft
tissue injuries to her neck, upper and lower back, an abrasion to her forehead,
and aggravation of a pre-existing jaw condition.  The plaintiff in closing
submissions advised that the claim for the jaw condition was not being pursued. 
The plaintiff claims that the pain from her soft tissue injuries is now
chronic.

[4]            
As a result of her injuries she claims damages for pain and suffering; past
wage loss; special damages; loss of future earning capacity; cost of future
care; and an “in trust” claim for her mother.

[5]            
The defendant says that the plaintiff suffered mild to moderate soft
tissue injuries from the Accident, which resolved and that her ongoing problems
are not connected to the Accident, but are from a pre-existing condition and
from injuries suffered subsequent to the Accident.

[6]            
Alternatively, the defendant also pleads that the plaintiff failed to
mitigate her injuries, losses, expenses or damages.

[7]            
The witnesses called by the plaintiff, in addition to herself were: Mr. Mark
Johnston, her former Manager at Costco; Dr. Brad Turner, her family
physician; Mr. Movesessin, a former co-worker at Costco; Mrs. Cynthia
Paradis, her mother; Dr. Maryana Apel, a physiatrist who provided an
expert’s report; and Ms. Mary Richardson, an occupational therapist who
provided a physical capacity evaluation report and a cost of future care report.

[8]            
The witnesses called by the defendant were:  Dr. N. K. Reebye, a
physiatrist; and Dr. Martin Grypma, an orthopaedic surgeon.  These
physicians examined the plaintiff and provided expert’s reports.

[9]            
An economic report prepared by Mr. Carson of Associated Economic
Consultants was tendered by the plaintiff.

II.              
Background

[10]        
The plaintiff is presently 43 years old, single, and lives in Calgary,
Alberta.  She has full-time employment with Costco as a membership clerk.  She
has a high school education and has diplomas in computerized office administration
and makeup artistry.  She has worked as a nanny, temporary office assistant,
cashier at two large supermarkets and as a makeup artist in the television and
film industry for two seasons.

[11]        
Since high school she has had neck and back problems and has attended
for chiropractic treatment for these problems.  She participated in gymnastics
and dance from an early age through high school.  The plaintiff has been obese
since high school.

[12]        
She has asthma and allergies for which she is prescribed medications including: 
Ventolin, Salbutamol, Bricanyl, Rhinocort and Beclamethazone.  She also has a
history of migraine headaches, which she has had since high school.

[13]        
In 1995, the plaintiff was in a motor vehicle accident and suffered neck
and back problems which were treated with massage.  She recovered within a year
of the accident.

[14]        
In 1998, she slipped and fell at a large supermarket where she worked
and suffered soft tissue lumbar and cervical injuries.  She attended for
chiropractic treatments, and her injuries resolved.

[15]        
In 2000, the plaintiff injured her knee while attempting to climb over a
fence while working as a makeup artist for a television production.  She underwent
arthroscopic surgery for a damaged meniscus, but due to her obesity her torn
knee ligament could not be repaired.  Since 2000, the plaintiff has received
disability benefits under the Canada Pension Plan (“CPP”) as well as income
assistance of approximately $800 per month, as a result of suffering torn knee
ligaments.  Her disability pension permitted her to take on some employment and
remain on disability until 2007.

[16]        
She was hired by Costco in July 2006 on a part-time basis.  She worked
as a front end assistant up to the date of the Accident.  This position
entailed cashiering, packing, loading buggies, assisting customers, and
shelving merchandise.  These activities required Ms. Paradis to stand for
extended periods, bend, reach, lift, push and pull.  Her part-time status gave
her a minimum of 25 hours per week, but she would work additional hours offered
by her employer.  This could be up to 40 hours per week.  The average number of
hours she worked immediately before the Accident was approximately 30 hours per
week.

[17]        
Around 5:30 p.m. on the date of the Accident, Ms. Paradis was
driving alone from work in her 1992 Buick Regal.  She was wearing a lap and
shoulder seat belt.  She was driving along 134^th St. northbound
approaching the intersection at 81B Ave. in Surrey.  The defendant drove
her car into the path of the plaintiff and a collision occurred.  The fire
department and paramedics attended the scene and Ms. Paradis was transported
by ambulance to Surrey Memorial Hospital.  She was released a few hours later
and she returned to her home in Surrey.  Her vehicle was deemed a write-off as
a result of the collision and her insurer provided her $2,000 as compensation
for her vehicle.  In March 2008, a vehicle was purchased for the plaintiff in
Alberta and was driven out to Surrey by her mother who resides in Alberta.

[18]        
Shortly after the Accident, Ms. Paradis attended her doctor’s
office and has been treated for pain since.  She also received physiotherapy
treatments from January 2008 to May 2009 as well as chiropractic treatments for
approximately one and a half years after the Accident.

[19]        
After the Accident she was off work for approximately two months and
then started a graduated return to work and did light duties such as upgrading customer
memberships.  She worked her way up to six hours per shift by April 6,
2008.

[20]        
In October 2010, Ms. Paradis obtained a transfer to a new Costco
store in Calgary and moved to Calgary to take up the new position as a
membership clerk.  Her reasons for seeking the transfer included the
opportunity to move up and grow with Costco and to take on more
responsibility.  Her performance assessments with Costco are positive.

[21]        
Ms. Paradis testified that prior to the Accident she was in good
health and was able to carry out her duties as a front end assistant.  She
stated that she was obese and weighed over 200 pounds.  The evidence indicates
that she weighed about 235 pounds at the time of the Accident.  In November
2008, Dr. Turner noted Ms. Paradis as being five feet three inches tall
and weighing 256 pounds.  Dr. Reebye’s report of March 2011 indicates that
she weighed 261 pounds at the time of his report.  She says that she has been
chronically overweight for decades.

[22]        
Ms. Paradis stated that she attended a chiropractor regularly since
she was a teen.  She testified that she did this for “maintenance” but provided
no definition for this.  Having the clinical records from her chiropractor, the
defence put it to her that she had been seeing the chiropractor for neck and
back pain as well as headaches.  Ms. Paradis said in response that she
could not tell from the clinical records if that was so.

[23]        
The clinical records indicate that the appointments were: four in 1990;
seven in 1998; three in 1999; five in 2000; ten in 2001; one in 2002; one in
2003; one in 2004; seven in 2005; nine in 2006; and nine in 2007 prior to the
Accident.  The records indicate that she complained of soreness in her low back
since 1990.  There are also frequent notations of neck pain throughout the
period, as well as frequent headaches in 2006 and 2007.

[24]        
 She stated that she has considered surgery to reduce her weight.  She
says aerobic exercise to lose weight is difficult because of her injury.

[25]        
On November 22, 2008, Ms. Paradis was struck by a buggy at
work around her left hip region.  This caused her pain and tingling in her
right leg, which she later reported turned into intermittent numbness in her
right leg and increased low back pain.

[26]        
On November 29, 2008, she slipped and fell at work twice on the
same day.  She landed on her left knee in the first slip and fall, and then
later fell on her right knee and twisted her left knee.  Worksafe provided her
with 22 physiotherapy treatments for a left knee bruise injury.

[27]        
In 2009, she was diagnosed with having a bulging disk on her spine at L3
and L4.

[28]        
In 2010, she attended a kinesiology clinic in Calgary at the request of
the defendant.  She attended 16 sessions.  She stated that the program gave her
more strength, but did not reduce the pain.

III.            
Medical Evidence

[29]        
Dr. Turner has been the plaintiff’s family physician since 1992.  In
his report of September 15, 2010, he stated that as a result of the
Accident “Ms. Paradis sustained strains to her neck and back regions when
the car she was driving was hit on the driver’s side door” and that “[s]he had
ongoing complaints of headaches, pain in her neck, upper back and low back
regions.  Physically, she had some localized muscular tenderness in the
affected areas.  Her neck and back range of motion has been normal since the
accident.”

[30]        
In September 2009, he sent Ms. Paradis for neurologic evaluation
because of her complaints of intermittent pain in her right leg.  Nerve root
impingement was not found.  He also ordered CT and MRI scans of her lumbosacral
spine.  The scans showed “some degenerative osteoarthritis and degenerative
disc disease most marked at the L3/4 level.  There was no overt nerve root or
spinal cord impingement.”

[31]        
His prognosis as contained in his report states that “[d]ue to the
chronicity of her symptoms, it is likely she will continue to have pain in the
affected areas in the foreseeable future.  It is unlikely that she will get
much benefit with further physiotherapy or chiropractic treatment.  Her best
chance at continued recovery lies in her keeping generally active. 
Unfortunately, she has degenerative changes in both her knees which limit her
ability to keep active.  Also, she is markedly overweight which puts increased
strain on her back and knees.”

[32]        
Dr. Turner noted in his report that Ms. Paradis reported to
him on April 10, 2008, that she had been able to work up to eight hour
shifts but that prolonged standing aggravated her symptoms.  There is also a
notation in the clinical notes of Surrey Physiotherapy for September 22,
2008, that Ms. Paradis was able to stand for eight hours with some
discomfort in her low back.

[33]        
Dr. Turner prescribed various medications for the plaintiff’s pain,
including:  Amytriptyline, Gabapentin, Celebrex, and Tylenol #3.  Ms. Paradis
had also been prescribed Gabapentin (as a trial) and Celebrex prior to the
Accident.

[34]        
Dr. Turner testified that he was not aware that the plaintiff had
been attending a chiropractor for several years prior to the Accident and
obviously had not had the chance to review Ms. Paradis’ chiropractic
records for those years.

[35]        
Dr. Grypma examined the plaintiff and noted that she reported her
neck pain to be 4 on a scale of 10 lasting several hours five days a week.  On
this scale, 10 would be the highest level of pain.  The plaintiff reported her
low back pain to be 5 or 6 on a scale of 10, constant, and described it as
pressure and sometimes pins and needles.  It was his impression that Ms. Paradis
sustained a soft tissue injury secondary to the Accident, which aggravated
pre-existing neck and back problems; and that this soft tissue injury was
aggravated later by the slip and fall at work which occurred about one year
after the Accident.  He opined that “Ms. Paradis’ enduring symptoms are
more likely due to obesity, degenerative changes, deconditioning and re-injury
that occurred a year after the motor vehicle accident” than to the Accident.  It
was also his view that it was unlikely that the osteoarthritis in the
plaintiff’s knees was related to the Accident.

[36]        
His report indicated that it was unlikely that Ms. Paradis would
have any permanent disability from the Accident and that the length of
temporary disability was estimated to be three to four months.

[37]        
Ms. Paradis also told Dr. Grypma that she did not continue
with her home exercises after her physiotherapy treatments ended.  He strongly
urged her to continue doing her home exercises as well as her core muscle
strengthening exercises.  He opined that if she continued to do these then
“there is a significant chance that her symptoms will recover.”  He also stated
that if she did not continue with her exercises, then it is unlikely that she
will recover.  As well, he stated that if she did not lose weight, it is
unlikely that her symptoms will recover.

[38]        
However, when asked about fibromyalgia and whether it could explain her
ongoing problems, he stated that it was not within his expertise to diagnosis
this condition and said that he deferred to the opinions of specialists who
dealt with it.

[39]        
Dr. Apel saw the plaintiff in October 2010.  She took a full
history and conducted a full examination of the plaintiff.  She learned that Ms. Paradis
had experienced non-family physical and sexual abuse in her youth.  Her testing
demonstrated 17 out of 18 fibromyalgia specific tender points (the threshold
being 11 points).  She  stated that the Accident “aggravated and exacerbated
pre-existent mechanical neck and back pain” and that the plaintiff’s “knee
difficulties seem to be possibly to some degree aggravated by the collision in
question, mostly as the presence of fibromyalgia aggravating overall chronic
pain.”  She concluded that the plaintiff has fibromyalgia and that this
condition “seems to have been materialy [sic] contributed or even caused by the
[Accident].”  However, given the nature of fibromyalgia and the history of the
plaintiff she could not say with certainty that the Accident caused her
condition.  It also appears that Dr. Apel, while having correspondence
from the plaintiff’s chiropractor, did not have the chiropractic clinical
records or the opportunity to review them prior to providing her report.  She
was also not aware that the plaintiff had two slip and falls on the same day
subsequent to the Accident.  She only knew that there had been one such slip
and fall.  She also was not aware that the plaintiff had been on Gabapentin
prior to the Accident.

[40]        
Similar to the other physicians who examined the plaintiff, Dr. Apel
found her to have full range of motion in all areas and no movement limitation
in her lower extremities.  She found that the plaintiff could bend forward and
place her hands flat on the floor without bending her knees.  She also found Ms. Paradis
to have ligamental laxity.  She stated that persons having this laxity have
greater problems with chronicity.

[41]        
Dr. Apel set out a listing of recommendations for the management of
Ms. Paradis’ condition including medications, various devices such as a
mattress, ergonomic pillow, cervical traction unit, and orthotics; active
rehabilitation; passive therapy; and lifestyle modification.

[42]        
She testified that chronicity can change over time and that it can be
controlled.  Her prognosis was that fibromyalgia was a lifelong condition, but
that Ms. Paradis’ condition could significantly improve with cognitive
therapy, exercise and medication.

[43]        
Dr. Reebye was called by the defence.  He examined the plaintiff in
March 2011.  He opined that the plaintiff had likely suffered mild to moderate
soft tissue injuries from the Accident.  It was his view that the plaintiff’s
ongoing symptoms are not related to the Accident and are more likely due to
pre-existing problems.  He stated in his report that “experience of pain is a
phenomenon influenced by multiple factors, including physical, emotional and
situational factors and not necessarily from a specific ongoing injury.”

[44]        
With regard to an MRI scan of the plaintiff’s spine, he stated that it
revealed mild degenerative disc changes; that the changes are common to the age
group of the plaintiff; that they are a result of the natural process of aging;
and that the injuries from the Accident will not adversely affect the natural
progression of degenerative changes in the lower back or the changes in the
discs of the plaintiff.

[45]        
He stated that when he examined Ms. Paradis, he did not find the threshold
number of positive tender points to indicate fibromyalgia.  He only detected
three and the reactions at those points were not the expected reactions.  He
stated that fibromyalgia is medically controversial, that criteria for it change
all the time, and that it is a diagnosis by exclusion.  However, in
re-examination he stated that he did not dispute the positive tender point
findings of Dr. Apel or her finding of fibromyalgia.

[46]        
Dr. Reebye was of the view that the restrictions against lifting
more than ten pounds were not warranted in the context of the Accident and
stated that “[s]he can increase her lifting abilities by using appropriate
lifting techniques, working at appropriate ergonomic work stations and
gradually increasing exercises and activities to improve core strength and
endurance.”

[47]        
In his opinion, Dr. Reebye estimated the length of disability from
the Accident was three months.

[48]        
In terms of her bulging disk at L3/L4, the medical evidence was
generally uniform in the view that the level of degeneration is common in
persons of Ms. Paradis’ age.

[49]        
The physicians tested for and noted no positive Waddell signs.

IV.           
Physical Capacity Evaluation

[50]        
On September  21, 2010, Ms. Richardson examined Ms. Paradis
and conducted various tests to determine the plaintiff’s feasibility for
employment.

[51]        
Ms. Richardson assessed the plaintiff’s capacity as it related to
sitting, standing, walking, balancing, bending/stooping, crouching, kneeling,
handling, reaching, upper extremity strength and endurance, climbing, lifting,
carrying, pushing and pulling and tolerance to activity.

[52]        
Her opinion as to the plaintiff’s feasibility for employment was that:

Ms. Paradis is considered to be employable (i.e. with
some physical restrictions) on a part-time and full-time basis, with the
potential to work in limited and light strength occupations.  Her physical
restrictions are listed below, and relate primarily to any work that requires
static standing, stooping and bending, crouching, climbing, walking, and
significant amounts of lifting.

In other words, Ms. Paradis
would not have the physical capacity to be able to access in an open labour
market any jobs that have requirements for those restrictions as given below,
despite being qualified in other ways (for example, education, training,
interests and aptitudes).  She may require modified job duties or other
environmental/ergonomic intervention related to the restrictions listed below,
which may limit the number of job titles that she is able to obtain or
maintain.

[53]        
The physical restrictions were listed and stated as follows at page ten of
the report:

1.    
Standing.  Ms. Paradis is restricted from work with
significant demands for static standing.  She would be able to perform dynamic
standing tasks for up to two hours at a time where she is able to move around
while on her feet.  If required to stand in one position, her standing
tolerance would be restricted to periods of 20 to 30 minutes at a time.

2.    
Walking.  Ms. Paradis is restricted from work with
significant demands for walking, especially walking on uneven, moving, slippery
or sloped surfaces.  She would be able to perform work with occasional demands
for short periods of walking on flat surfaces.

3.    
Bending/Stooping.  Ms. Paradis is restricted from work with significant
demands for stooping or bending.  She would be able to perform work with
occasional demands for short period of intermittent bending (where she moves in
and out of position rather than holding a static posture).

4.    
Crouching/Kneeling.  Ms. Paradis is restricted from work
with significant demands for low level work.  She would be able to perform
infrequent crouching and occasional short periods of one-point kneeling on her
right knee.

5.    
Climbing.  Ms. Paradis is restricted from work with significant
demands for climbing.  She would be able to perform occasional stair climbing
in the workplace.

6.    
Reaching.  Ms. Paradis is restricted from work with
significant demands for reaching, especially if required to extend her neck to
look up while reaching overhead or if required to stoop or bend while reaching
downward.  She would be able to perform work which involves short periods of
reaching occasionally, and would cope best if reaching primarily at desk level.

7.    
Strength.  Ms. Paradis’ maximal strength capacity was not
determined.  Based on her performance, she is restricted to lifting, carrying,
pushing and pulling loads in the limited and light strength range (i.e. up to
10 kilograms/22 pounds).  Because of reduced tolerances for bending, crouching,
and reaching, she would be restricted in her tolerance for frequent lifting and
would be best suited to work with only occasional demands for lifting.

[54]        
Ms. Richardson stated at trial that the above restrictions related
to walking; crouching/kneeling; and climbing were more related to difficulties
arising from the plaintiff’s knee condition and that the balance were more
related to her back difficulties.  In this regard, the report notes that Ms. Paradis
advised that her left knee pain was not related to the Accident, but to a
previous injury, and that the pain “might be a bit worse now.”

[55]        
Ms. Richardson stated at page 12 of her report that:

In terms of her work capacity, Ms. Paradis
would be best suited to a sedentary job where she is able to work with her
hands at desk level with minimal demands for stooping or bending.

[56]        
An aspect of concern noted by Ms. Richardson is the result arising
from the administration of effort testing to calibrate the level of reliability
of the test results.  In this regard, Ms. Richardson stated:

there are two important concepts
to consider: whether there were any behavioural factors affecting performance
and whether or not full effort was given during testing.

[57]        
The behavioural finding of Ms. Richardson was mixed.  She reported
that the plaintiff passed Waddell’s and other tests for non-organic signs and that
the plaintiff’s reports of “changes in pain ratings were in keeping with
observed changes in movement patterns.”  However, she also reported that “[the
plaintiff’s] rating of perceived capacity, as assessed using the Spinal
Function Sort, appeared to be an under-estimation of her performance during
testing.  Also, her rating of perceived load during strength testing did not
correspond to objective signs of effort.”

[58]        
Ms. Richardson opined that “there is some indication that Ms. Paradis’
performance was affected by her perceptions of her abilities.”

[59]        
With respect to physical effort, the report states that Ms. Paradis
passed 2 out of 3 aspects of maximal voluntary effort testing, but states:

On global effort rating during
strength testing, Ms. Paradis did not demonstrate objective signs of
changes in biomechanics and for heart rate increase.  Minimal biomechanical risk
factors were observed on most subtests during strength testing.

[60]        
The conclusion on physical effort is stated as follows:

Based on test results and
clinical observation, Ms. Paradis is considered to have given mixed effort
during testing.  There were some areas where her performance did not reflect
full effort, i.e., grip strength testing and lifting.  Thus, the test results
represent her current functional level in the context of her symptoms, but may
not demonstrate her maximal abilities in all areas.

[61]        
In terms of activity tolerance, Ms. Paradis was able to complete seven
hours of testing, including a 30 minute lunch break.  She was observed as
maintaining a steady pace and did not require any additional breaks.  No
obvious signs of fatigue were noted but Ms. Paradis demonstrated reduced
tolerance to certain postures and movements, especially stooping, bending,
crouching, kneeling and static standing.

[62]        
It was pointed out to Ms. Richardson that contrary to the
information she was provided by the plaintiff, that she was not able to move to
full- time shifts and worked five hour shifts five days a week, the plaintiff
had worked a significant  number of eight hour shifts in the year prior to the
session with Ms. Richardson.

[63]        
In terms of pain, the report noted that at the start of the session the
plaintiff rated her low back pain at 2/10 and her occipital and neck pain at
1/10.  The report stated that “over the past month, pain on her best day had
been 1/10 and on her worst day had been 6 to 7/10.”  On a follow-up through three
pain questionnaires post-assessment, the report stated that Ms. Paradis
rated her overall pain level at 3.5 to 4/10.

V.             
Economic Evidence

[64]        
The plaintiff tendered the report of Mr. Carson, an economist, who
provided evidence with respect to calculating present value of future earnings
or loss of earnings and cost of future care for Ms. Paradis.

VI.           
Discussion

[65]        
A key aspect of this case is the extent and duration of the injuries
which the plaintiff says arose from the Accident.

[66]        
The defendant submits that the plaintiff is “claims conscious” and has
tailored her evidence to minimize the significance of her pre-Accident
injuries; to embellish the effect of the injuries she suffered from the
Accident on her ability to work and care for herself; and to undermine the
defendant’s expert reports.  As a result, the defendant says that the
evidentiary value of the plaintiff and her supporting evidence is limited.  The
defendant points out that Ms. Paradis’ evidence should be discounted and refers
to the following instances in support of this view:

·      
the plaintiff’s denial that she was having consistent headaches
and neck and low back pain prior to the Accident, while her chiropractic
clinical records indicate that she was experiencing such headaches, back and
neck pain;

·      
her characterization of attendances to the chiropractor as simply
for “maintenance” when the records relate to specific complaints regarding her
back, neck and headaches;

·      
her reluctance to agree with  her chiropractor’s clinical records
which indicated numerous visits for complaints of headaches, back and neck pain
on the basis that she could not read the entries and that she did not
understand the chiropractor’s notations;

·      
her indication to Dr. Apel that she recalled seeing a chiropractor
two to three times a year in 2006 and 2007, when the chiropractic records
indicate that there were  nine visits in each of those years;

·      
her indication to Ms. Richardson that she was not able to
progress to full-time shifts and that she worked five hour shifts five days per
week ,when the plaintiff’s time card entries between August 3, 2009 and
September 25, 2010 showed the plaintiff worked approximately 112
eight-hour shifts during that time period;

·      
the physiotherapy records for September 22, 2008 which
indicate that the plaintiff was able to stand for eight hours with some
discomfort and pain in her lower back near the end of her shifts;

·      
that the plaintiff stated that she was unable to work as a makeup
artist because she could not lift her makeup kit as a result of her injuries,
but failed to tell the court until it was raised by the defence in cross
examination that she was on a CPP disability pension from 2001 to 2007 as a result
of a knee injury she suffered while working as a makeup artist;

·      
that the plaintiff testified that she was unable to do cleaning
and required the assistance of her mother as a result of the Accident, but
failed to tell the court that her basement suite had been flooded from the
floor above and had been turned into a mess as a result; and

·      
the attempt of the plaintiff to suggest that Dr. Reebye had
not properly examined her body for tender points when Dr. Reebye had many
years of experience examining patients.

[67]        
I also note that Ms. Paradis’ assertion that she was overlooked for
additional hours over the part-time minimum was not supported by her former
manager.  Further, she provided no independent evidence of having been
overlooked for promotions.  The evidence reveals that she has a progressive
employer who has made accommodations for her and placed her in a position where
she has a full-time position and earns more per hour than she did at the time
of the Accident.

[68]        
I also take into consideration that Dr. Apel noted that the plaintiff
was difficult to interview (though she tried to be helpful) in terms of the
plaintiff’s recollection of events which made it more difficult to determine
causation.

[69]        
Though Ms. Paradis had some responses and explanations for these
areas raised by defence counsel, in the circumstances, I am left with reservations
in accepting the entirety of the evidence put forth in the plaintiff’s case
regarding the extent and duration of her injuries from the Accident.

[70]        
In light of the opinion of Dr. Apel, the plaintiff’s prior medical
history which included ongoing pain in her back, legs, knees, neck and
headaches; and her history of attendances to her chiropractor for regular treatment
for three years prior to the Accident, I am of the view that she likely had
fibromyalgia prior to the Accident.

[71]        
While there was no diagnosis of this condition pre-Accident, it is
apparent that Ms. Paradis had been obtaining chiropractic treatment over
the years prior to the Accident and that this was not known to her family physician. 
She stated that she did so for “maintenance”; however, there was no specific
meaning offered by the plaintiff for what she actually meant.  Dr. Apel
found this “maintenance” description as not helpful to her evaluation.  It is
apparent that the chiropractic clinical records indicate that Ms. Paradis
was obtaining fairly regular treatment for her upper and lower back and
headaches prior to the Accident.  I note as well that Dr. Turner had
started the plaintiff on Gabapentin (a known medication for fibromyalgia) as a
trial prior to the Accident and Dr. Reebye accepted Dr. Apel’s
findings.  I also find as indicated by the medical evidence that the bulging
disk at L3/L4 is the result of the natural degenerative change that is related
to aging and not related to the Accident.  I further find that the limitations
related to the plaintiff’s left knee are not related to the Accident and that
the Accident did not impact significantly her walking, crouching/kneeling and
climbing.  From Dr. Reebye’s and Dr. Grympa’s observations, I accept
that the plaintiff’s condition of pain is not constant, but is intermittent. 
Also the level of pain fluctuates ranging from minimal to 6 or 7/10 but not in
all areas and overall is 3.5 to 4 out of 10.  I also have placed weight on the
testing of Ms. Richardson which raised questions regarding the level of
effort exerted by Ms. Paradis sufficient for Ms. Richardson to note
that:

Based on Ms. Paradis’
behavioural and effort profiles, it is this evaluator’s opinion that she gave
mixed effort during the assessment.  She gave high levels of effort on some
aspects of testing, but she self-limited her performance on the lifting
assessment and her perceptions of her abilities are less than that demonstrated
on testing.  Overall, it is this evaluator’s opinion that the test results
represent her current functional level in the context of her symptoms, but may
not demonstrate her maximal abilities in all areas.

[72]        
I also accept the medical evidence that with proper management and care
the plaintiff’s condition can be controlled significantly according to Dr. Apel,
and even resolved according to Dr. Reebye.

[73]        
Applying the principles of causation as set out in Resurfice Corp. v.
Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996]
3 S.C.R. 458; and most recently in Farrant v. Laktin, 2011 BCCA 336,
as well as recognizing the comment that courts should exercise caution when
there is little objective evidence of continuing complaints of pain persisting
beyond what the defence asserts is the normal recovery period, I find that the
Accident aggravated Ms. Paradis’ condition of fibromyalgia.  My view is
that Ms. Paradis’ pain is predominantly in the mild to moderate range
(though it can increase) and relates to her lower back; that she suffered from
back and neck pain as well as headaches prior to the Accident but not as great;
that she is able to stand far longer than she says; that she has the capacity
to lift more than she asserts; and can engage in more activities than the physical
capacity concludes.  The plaintiff also has full range of motion at her neck,
shoulders, elbows, forearms, wrists, lower back, hips, knees, ankles and feet. 
A significant part of her physical restrictions are not substantially related
to aggravation from the Accident but rather to the unrepaired injury to her
left knee, the osteoarthritis found in her knees, as well as her weight. 
However, I find that she has suffered some loss of capacity.

[74]        
I now turn to damages.

VII.          
Damages

[75]        
I will address the plaintiff’s damage claims in the following order: general
damages; special damages; past wage loss; cost of future care; loss of future
earning capacity; and an “in trust” claim.

A.             
General Damages

[76]        
A convenient non-exhaustive list of factors to take into account was
provided in Stapley v. Hejslet, 2006 BCCA 34 at para. 46:

(a)           
age of the plaintiff;

(b)           
nature of the injury;

(c)           
severity and duration of pain;

(d)           
disability;

(e)           
emotional suffering; and

(f)             
loss or impairment of life;

…

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

(h)           
impairment of physical and mental abilities;

(i)             
loss of lifestyle; and

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

[77]        
A key principle is to attempt to put the plaintiff in the position they
were in immediately before the Accident.

[78]        
The plaintiff submits that damages under this head should be $80,000.

[79]        
The cases put forth by the plaintiff included: Gregory v. Insurance
Corporation of British Columbia, 2010 BCSC 352; Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144; Poirier
v. Aubrey, 2010 BCCA 266; Knauf v. Chao, 2009 BCCA 605; Lamont
v. Stead, 2010 BCSC 432; Demarzo v. Michaud, 2010 BCSC 255;
Mackie v. Gruber, 2009 BCSC 1106; Gold v. Joe, 2008 BCSC 865;
and Maillet v. Rosenau, 2006 BCSC 10.

[80]        
The defendant argues that general damages should be in the range of
$25,000 to $35,000.

[81]        
The cases put forth by the defendant included: Gendron v. Moffat,
2010 BCSC 1231; Dermody v. Gassler, 2009 BCSC 1072; Robinson
v. Anderson, 2009 BCSC 1450; and Chu v. Ponsford, 2008 BCSC 429.

[82]        
Though Ms. Paradis was involved in gymnastics and dance from an
early point in her life and did so during high school; there is little evidence
of the plaintiff having a particularly active lifestyle in the more recent
period prior to the Accident.  She was on a disability pension since 2001 for a
significant knee injury which has only been repaired in part.  Her relationships
and activities do not appear to have been particularly impacted by the Accident.
 

[83]        
Ms. Paradis had a history of back, neck and knee pain, and
headaches prior to the Accident.  Also, the medical evidence indicates that Ms. Paradis
has full range of motion in all areas of her body, from her neck to her feet.

[84]        
The authorities referred to by the plaintiff in support of its position
on quantum largely do not deal with persons with a pre-existing condition of
pain comparable to the plaintiff.  The cases also deal with persons who enjoyed
activities that were more significantly impacted by their injuries than in the
instant case.  In my view, the injuries in the cases submitted by the defendant
are somewhat more comparable to the plaintiff.  Also, I accept that Ms. Paradis’
level of pain and disability can be significantly controlled with proper
management.  The defence’s position that some recognition for the plaintiff not
taking reasonable steps to reduce her weight is addressed later under
mitigation.

[85]        
In all of the circumstances, I assess general damages as $40,000.

B.             
Special Damages

[86]        
It is agreed by the parties that the amount for special expenses is
$4,908.  The expenses largely relate to physiotherapy.  As result, Ms. Paradis
is awarded this amount for special damages.

C.             
Past Wage loss

[87]        
The parties agree that the plaintiff is entitled to loss of past wages
due to the Accident.  They agree that the gross amount is $4,162.50 which net
of tax is $3,330.  As a result, the plaintiff is awarded $3,330 net plus
pre-judgment interest.

D.             
Cost of Future Care

[88]        
Ms. Richardson prepared a report on the cost of future care which
was tendered at trial.  Her report recommends various treatments, services and
supplies and related costs.  Ms. Richardson’s recommendations were based
on a review of Dr. Apel’s report of October 1, 2010, the Physical
Capacity Evaluation Report prepared by herself, and her interpretation of
functional needs based on a review of the medical documentation relating to Ms. Paradis’
injuries.

[89]        
The items and costs sought by the plaintiff from Dr. Apel’s and Ms. Richardson’s
reports, extrapolated for ongoing costs using the economic report of Mr. Carson,
are as follows:

[90]        
The plaintiff submits that all of the above are reasonable and medically
justified.  Using the economic evidence in the report of Mr. Carson, the
plaintiff submits that the reasonable range is $34,652 to $45,192.

[91]        
I note that there are other items recommended, but are not sought
because they may be obtained through other avenues or have been abandoned by
the plaintiff in this action.  They include tender point injections, weight
loss consultation, a tennis elbow brace and a carpal tunnel brace.

[92]        
The defendant submits that none of the items should be permitted on the
basis that the plaintiff has been through physiotherapy and provided advice on
exercises to lose weight, but has not carried through with the advice.  The
defence further argues that exercise and weight loss are tasks that the
plaintiff should endeavour to accomplish due to her pre-existing degenerative
conditions and as such are costs unrelated to the Accident.

[93]        
In the alternative, if future care costs are to be awarded, the defence
submits that the only cost that should be awarded is a gym membership of $350.

[94]        
A recurring theme in the medical advice to Ms. Paradis, pre and
post Accident has been the need for her to reduce her weight.  By doing so the
difficulties she has would be reduced and thereby reduce her need for ongoing
treatment.  It is Dr. Reebye’s opinion that with proper treatment the
condition can resolve.  Dr. Apel’s view is that the plaintiff’s condition
is lifelong but can be controlled and will significantly improve with proper
treatment.

[95]        
In the circumstances, it is my view that there is a substantial
possibility that the pain which Ms. Paradis experiences from the Accident can
be significantly reduced to at least her condition pre-Accident by focusing on
weight reduction and increasing activity.  As a result, items sought that
relate to these areas are approved.  By addressing the weight issue including
completing a tailored kinesiology program, attending the gym, obtaining cognitive
therapy, and obtaining weight loss consultation it is my view that her need for
continued medications and ongoing programs to address her condition from the
Accident will not be required lifelong.  I have adjusted these costs to a third
of the plaintiff’s sought after requirements.  I am also of the view that
certain items identified, such as the need for a new mattress, are not
justified because the evidence available does not indicate that Ms. Paradis’
current mattress is inadequate.  The same can be said for a new pillow.  Further,
orthotics will not be required on an ongoing basis due the Accident, though I
have included them on a one time basis.  I have also made a reduction for the
vocational placement and monitoring, as the plaintiff is not intending to
change her employment.

[96]        
In the result, the plaintiff is awarded $25,000.

E.             
Loss of Future Earning Capacity

[97]        
The loss of future earning capacity is compensation related to the loss
of a capital asset.  It is a pecuniary loss which is to be a fair assessment
and not a mathematical calculation.  It involves a comparison between the
likely future of the plaintiff if the accident had not happened and the likely
future after the accident has happened.  Projections, calculations, and
formulas are helpful only to the extent they assist finding what is fair and reasonable. 
The degree of impairment to the plaintiff’s earning capacity depends upon the
type and severity of the plaintiff’s injuries and the nature of the anticipated
employment at issue.  In valuing the award, the likely duration of the
plaintiff’s prospective working life is to be considered.  All substantial
possibilities, both positive and negative, and the likelihood of their
occurrence in light of all of the evidence are to be taken into account.  The
exercise has been described as a deep gaze into a crystal ball or an estimate
based on prophecies.  In all cases, the court is to step back and look at all
relevant factors in order to ensure that a fair assessment has been made.

[98]        
Some of the factors which are to be taken into account in making the
assessment have been set out in Brown v. Golaiy, 26 B.C.L.R. (3d) 353 at
para. 8:

1.       Whether the plaintiff has been rendered less
capable overall from earning income from all types of employment;

2.       Whether the plaintiff is less marketable or
attractive as an employee to potential employers;

3.       Whether the plaintiff has lost the ability to
take advantage of all job opportunities which might otherwise have been open to
him, had he not been injured; and

4.       Whether
the plaintiff is less valuable to himself as a person capable of earning income
in a competitive labour market. 

[99]        
Ms. Paradis is currently working full-time and earning more than
she was at the time of the Accident.  There is no evidence that she is not
meeting expectations nor that her job is at risk.

[100]     The
plaintiff however submits that there is a reasonable possibility that she will
not be accommodated with sedentary or lighter duties in the future.  It is
argued that should her present position end she could well be forced to seek a
job only to find those jobs that are physically beyond her ability.  Thus she
would have to labour under disability at reduced working hours so she can cope
and that will lead to a future of significantly lower income.

[101]     As an
example, the plaintiff hypothesized a scenario where she would be reduced to 25
hours per week from her current 40 hours over 48 weeks at $20.00 per hour. 
This it is said would be a reduction of $14,400 a year.

[102]     The
plaintiff submits that a reasonable assessment of damages under this head is
$100,000.

[103]     As
mentioned, Ms. Paradis works full-time.  This is greater than her level of
employment immediately before the Accident.  I also understand that she is
earning more per hour than she did prior to the Accident.  There is no
indication that she is not meeting the expectations of her job.  There is no
independent evidence that her employment is at risk.  To the extent that it is
suggested otherwise, I am not persuaded.  In this regard, though Ms. Paradis
testified that she had been denied additional work hours and promotions because
of her limitations this was not supported by the evidence.  Mr. Johnston
appeared as a witness in her case.  He indicated that other less senior
employees would not be given preferential treatment for extra hours because of
her limitations.  Moreover, the evidence demonstrates that Ms. Paradis
worked a great number of shifts over the part-time minimum after her return to
work.  Mr. Johnston was not asked about the effect of her limitations on
her ability to advance in the organization; nor was any other witness called or
other independent evidence adduced to support this contention.  Further, the
evidence is that she wishes to continue with Costco for the foreseeable future
and grow with the company.  It is more likely that the positions that would be
available to Ms. Paradis as she seeks higher ranking jobs with her
employer would be less demanding physically and thus her physical limitations
would be less significant in terms of assessment for promotion.  However, I
recognize that the exercise here is to deal with real possibilities.  The
possibility of the job loss as hypothesized by the plaintiff would more likely
in my view occur several years into the future.

[104]     I am
persuaded that Ms. Paradis has suffered some diminishment in earning
capacity.  However, the loss is not as great as submitted by the plaintiff in
terms of duration or extent given the evidence.  I am also of the view that the
plaintiff had already had some diminishment in earning capacity pre-Accident
that arises from her unrepaired knee injury.  I also note that with proper
training in lifting techniques, which should arise from kinesiology sessions,
she should be able to enhance her ability to lift and overcome the barriers to
lifting.  The plaintiff also has full range of motion at her neck, shoulders,
elbows, forearms, wrists, lower back, hips, knees, ankles and feet.  Further, I
take into account my view that Ms. Paradis’ restrictions as they relate to
her knee are not related to the Accident.  I also have taken into account that
she may follow up on her intention to reduce her weight including diet
counselling and weight loss surgery which would likely reduce the level of her
limitations; as well as, the kinesiology and exercise costs that I have awarded. 
I have also taken into account, the evidence of Dr. Reebye that the
condition can potentially be entirely resolved.  There is also recognition of
the opposite.

[105]     There is
also reference to the loss of capacity with respect to her makeup career.  The
evidence is thin in this area both in terms of earnings and the ability to gain
entry into this line of work.  I have given this only a little weight in the
consideration.

[106]     In the
circumstances, taking into consideration all substantial possibilities, both
positive and negative, and giving them weight according to how likely they
would occur, in light of all the evidence, I assess the loss of earning
capacity as $40,000.

F.             
In Trust claim

[107]     The amount
of $10,651.74 is claimed for the benefit of Ms. Paradis’ mother who
travelled several times from Calgary to Surrey to assist her daughter,
including washing laundry, cleaning her apartment, throwing things out, and packing
the plaintiff’s things for her move to Calgary.

[108]    
The factors to consider regarding “in trust” claims have been summarized
in Bystedt v. Hay, 2001 BCSC 1735 at para. 180, aff’d 2004
BCCA 124 as follows:

(a)        the
services provided must replace services necessary for the care of the plaintiff
as a result of a plaintiff’s injuries;

(b)        if the
services are rendered by a family member, they must be over and above what
would be expected from the family relationship (here, the normal care of an
uninjured child);

(c)        the
maximum value of such services is the cost of obtaining the services outside
the family;

(d)        where
the opportunity cost to the care-giving family member is lower than the cost of
obtaining the services independently, the court will award the lower amount;

(e)        quantification
should reflect the true and reasonable value of the services performed taking
into account the time, quality and nature of those services.  In this regard,
the damages should reflect the wage of a substitute caregiver.  There should
not be a discounting or undervaluation of such services because of the nature
of the relationship; and,

(f)         the family members providing
the services need not forego other income and there need not be payment for the
services rendered.

[109]     Mrs. Paradis
indicated that she spent considerable time going through boxes of documents. 
She agreed that her daughter had no limitations with respect to that activity,
except in terms of moving boxes.

[110]     The
plaintiff says that the range of $5,000 to $10,000 is appropriate and submitted
that $7,000 was a reasonable figure.

[111]     The
defendant submits that the plaintiff adduced limited evidence as to her need
for the assistance provided by her mother and that the assistance provided was what
would be expected out of natural love and affection.  The defendant also argues
that the plaintiff has not provided supporting evidence of the cost of
obtaining the services outside of the family.  As a result the defendant argues
that this claim should be dismissed.  Alternatively, the defendant submits that
if an award is to be made then a reasonable figure would be two to three hours
per week over four months at $15 per hour.  This would calculate to
approximately $600.

[112]     There are
several costs identified in the materials of Mrs. Paradis that either are
not compensable in this action or are unreasonably high and unsupported by an
external cost measure.  Mrs. Paradis prepared two different invoices for
this in trust claim.  The items claimed such as hotel stays, gasoline, mileage
and flights are unsupported by invoices.  The need for such travel,
accommodations, mileage and time to do laundry, clean, pack (at $50/hour) to
move Ms. Paradis to Calgary of approximately $7,000, can be characterized
in part as costs for assistance that one would naturally provide out of love
and affection.  Further, my view is that she was capable of contributing to
some of these activities.  As well, a part of her limitations is not related to
the Accident.  As a result, I have eliminated the costs related to delivering Ms. Paradis
a car purchased in Alberta and the return flight back to Alberta; reduced the
cleaning and laundry; eliminated the cost of renting a trailer for disposal as
it does not arise from the Accident; reduced the packing and unpacking of boxes
and shredding; and reduced the flights, mileage and lodging for three people. 
My view of the evidence is that a conservative and fair assessment of these
costs is $3,000.

VIII.        
Mitigation

[113]     The onus
rests with the defendant to establish this defence.

[114]     The
defendant argues that Ms. Paradis did not take reasonable steps to
mitigate, specifically noting that Ms. Paradis has not engaged in losing
weight or continued with exercises recommended by her physiotherapist.  As
mentioned earlier, the medical records show that Ms. Paradis has been
advised over many years to reduce her weight and she has not succeeded.

[115]     On the
other hand, Ms. Paradis attended physiotherapy treatments including the
sessions which were requested of her by the defence.  She completed the
requested program.  She has tried to do some of the exercises recommended but
her weight is a major barrier to more activity.  Her weight condition has
existed since she was a child.  It is fair to say that there is not a simple solution
to it.

[116]     I also
note that Ms. Paradis made fairly prompt efforts to return to work on a
graduated basis and has managed to obtain full-time work at a higher pay level
since the Accident.

[117]     In the
circumstances, I am not persuaded that Ms. Paradis has not taken
reasonable steps to mitigate her damages.

IX.           
Conclusion

[118]     The plaintiff
is awarded the following:

(a)           
General damages:                        $40,000

(b)           
Special damages:                           $4,908

(c)           
Past Loss of Wages (net of tax):      $3,330

(d)           
Loss of Earning Capacity               $40,000

(e)           
Cost of Future Care                      $25,000

(f)             
In Trust     $3,000

  TOTAL:  $116,238

[119]     Unless the
circumstances require the parties to address the issue of costs, the plaintiff
is entitled to costs under Rule 15-1(15).

“The
Honourable Mr. Justice Masuhara”