IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120109

Docket: M104436

Registry:
Vancouver

Between:

Kristy Ayaka Azuma-Dao

Plaintiff

And

MKA Leasing Ltd.
and Sara Riquelme Clarke

Defendants

Before:
The Honourable Madam Justice Humphries

Reasons for Judgment

[1]            
The plaintiff, 28 years old, was injured in a rear-end collision on
September 24, 2008.  Liability is admitted.  She seeks damages for
non-pecuniary loss, past and future wage loss, cost of future care, and special
damages.

EVIDENCE

[2]            
Ms. Azuma-Dao has a BA from Simon Fraser University (“SFU”) and a
Certificate in Family Studies, obtained in 2006.

[3]            
At the time of the accident, Ms. Azuma-Dao was working at two jobs.  She
was employed full time at Community Living Society (“CLS”) since 2006, where
she assisted disabled adults to function in the community.  She also worked seasonally
at Playland and the PNE at night, which she had done since high school.

[4]            
Ms. Azuma-Dao’s job at CLS included physical demands – wheel chair
transfers, providing assistance with walking and various daily tasks.  The job
required the ability to deal with unexpected violence from the disabled adults
who were in her care.

[5]            
Her job at the PNE was more managerial in nature, but she had to lift
heavy bags of cash and set up games.

[6]            
The accident occurred on Highway #1 as Ms. Azuma-Dao was driving two of
her CLS clients back from their work assignment in Port Coquitlam.  Faced with
a sudden obstruction in the HOV lane, she slowed and shoulder checked twice,
hoping to change lanes, and was hit by the defendant driver at the time she
made her second shoulder check.  Her car was a total loss.

[7]            
Although injured while working, Ms. Azuma-Dao chose to sue rather than
to accept WCB benefits because she was told she would not get damages for pain
and suffering through WCB, nor would she receive full compensation for wage
loss.

[8]            
Ms. Azuma-Dao experienced pain in her neck and shoulders following the
accident.  She had sharp pain in her left shoulder and tingling down to her
fingers.  Her lower back felt numb, with sharp pains from certain activities. 
She had daily headaches and difficulty sleeping.

[9]            
Ms. Azuma-Dao testified that she became concerned soon after the
accident that she should have a back-up plan if her physical problems proved to
be long in duration.  Financial independence is very important to her.  She
considered a number of options, and in October of 2008, a month after the
accident, she inquired about enrolling in a teaching program at SFU.  In November,
she enrolled in four courses which were prerequisites for education, to begin
in January.  She testified that she thought she should retrain while she was
recovering and if she could return to CLS, that would be good.  If she could
not, she would have another option.

[10]        
She saw her family doctor, Dr. Frank, shortly after the accident.  In
December of 2008, upon being advised by Ms. Azuma-Dao that she was going to
quit her job and go to SFU, Dr. Frank advised against retraining for another
career so soon and recommended she try a graduated return to work program
through KARP.

[11]        
Ms. Azuma-Dao decided not to follow her doctor’s recommendations and
instead continued with the physiotherapy she had started in October of 2008. 
She has continued to go to the same physiotherapist twice a week since then, at
$57 per session.  She also started aqua-fit classes.  She said she did not have
the time or the money to go into a work fitness program, although she
acknowledged the costs of the KARP program and her physiotherapy sessions were
similar.

[12]        
Ms. Azuma-Dao attempted to return to work at CLS in November of 2008,
but after three shifts, she said she knew she was not ready to go back to work. 
She confirmed her enrolment at SFU and attended the courses in January.  She
quit her full time job at CLS that month.

[13]        
The classes at SFU took up 8 hours per week.  Ms. Azuma-Dao testified she
found the sitting difficult, but there were breaks after each hour.  If she had
to miss a class, she got notes from friends.  She said the pain made it
difficult to concentrate on studying.  However, she did quite well in the
courses.

[14]        
She returned to the PNE in April of 2009, but required assistance to do
anything that required lifting.  She also called CLS to say she would be
available for some duties and was called for a shift in July, but by then she
was committed to full time work at the PNE.  She suffered an episode of severe
pain at the PNE when a co-worker playfully grabbed her and shook her.  She fell
to the ground and could not get up.  The episode was brief but she had to be
assisted by the first aid attendant and wheeled out in a wheel chair.  She had
suffered a similar incident at home in the week after the accident.

[15]        
Ms. Azuma-Dao was married in July of 2009, and she and her husband organized
the large wedding themselves.  She had planned to surprise her husband with a
special Bhangra dance at the wedding but was unable to perform it due to her
injuries.

[16]        
Ms. Azuma-Dao worked one shift at CLS in September of 2009.  She said by
that time, which was a year after the accident, she still had the same neck,
shoulder, and lower back pain as well as headaches.  She would need to wake up
to reposition herself and was tired throughout the day.  However, she could
lift heavier objects and her mobility had improved.  She began running again,
gradually increasing her time.  She began dancing again, but could not get to
her pre-accident level.  She began lifting weights on her own and at the gym.

[17]        
She continued to go to physiotherapy twice a week and felt worse off if
she did not go.

[18]        
Ms. Azuma-Dao applied to be admitted to the Professional Development
Program at SFU and was accepted to start in January 2010.  She completed that
program and graduated with her B. Ed. in December of 2010.  She was able to do
her practicums, but could not demonstrate basketball techniques to the
students.  She has applied to many school districts to become a Teacher On
Call, which is the prerequisite to being hired on contract, but so far has been
unsuccessful.  She has begun some tutoring jobs.  She has also applied for some
jobs with the government that would not require physical strength.

[19]        
By the time of trial, the range of movement in Ms. Azuma-Dao’s neck had
increased, although certain activities still cause pain and tingling in her
arms.  She still has daily headaches, varying in intensity.  Her lower back is
still painful, but she can sit for 40 minutes without a break.  She still has
difficulty sleeping.  She is stressed over her inability to contribute to
finances and is frustrated with how slow her physical recovery has been.  She
says she has a tendency to cry, a trait that was never present before the
accident.

[20]        
Dr. Frank has advised Ms. Azuma-Dao to stop running, so she walks
instead.  Her doctor has prescribed various medications for her migraine headaches,
but although she tried some, they did not work so she does not want to try
others.

[21]        
The main common interest she shared with her husband was sports and they
can no longer do that together.  Her husband wants to start a family and she is
reluctant to do so because of her physical symptoms and her inability to
contribute financially.

[22]        
There is no dispute that Ms. Azuma-Dao was healthy, fit, and extremely
active prior to the accident.  She played many sports with a group of male
friends from high school, including her husband whom she married in July of
2009.  She kept up with the men and was treated as “one of the guys.”

[23]        
Mr. Dao, who married Ms. Azuma-Dao in July of 2009, describes her as
competitive, passionate, independent, and happy-go-lucky before the accident. 
Now, because of her limitations, they are not able to participate in sports
together, something that was important to them.  She seems depressed and easily
irritated.

[24]        
Three friends, Mr. Yeung, Mr. Lee, and Ms. Gill, testified about the
changes they have observed in Ms. Azuma-Dao.  All described her as
happy-go-lucky, energetic, and very competitive before the accident.

[25]        
Mr. Yeung testified that Ms. Azuma-Dao is now physically limited so they
hang out together as a group and do sedentary things.  He said part of the
change in their activities is that they are older now and time is more limited.

[26]        
Mr. Lee said Ms. Azuma-Dao was a go-getter before the accident, active
in a lot of sports and equivalent to the men in the group.  Now she is a lot
less cheerful and is not able to do sports.  The group is close knit and still
hangs out together, but she will often go to her room to lie down.

[27]        
Ms. Gill is a close friend of Ms. Azuma-Dao’s.  She said Ms. Azuma-Dao
was upbeat, spunky, athletic, always pleasant.  They still spend a lot of time
together, but she finds that Ms. Azuma-Dao gets tired and can be irritable,
complaining about her back.  She is quieter and moodier.

[28]        
According to her supervisors at both previous places of employment, Ms. Azuma-Dao
was an extremely valuable employee, with a good attitude and an energetic
approach to her work.  They have both been willing to accommodate her in order
to have her return to work.

[29]        
Ms. Azuma-Dao worked for the PNE in the summer and fall of 2010, and
although she did not want to return in 2011, her boss was very anxious to have
her so she worked for three weeks.

[30]        
Ms. Azuma-Dao has continued to do some shifts at CLS, where she is
highly valued.  Ms. Beaudoin, who runs the facility at CLS where Ms. Azuma-Dao
works, said they changed shifts to accommodate her.  Ms. Beaudoin wants to use
Ms. Azumda-Dao before she calls in other relief workers because although
Ms. Azuma-Dao now cannot do the more physically demanding parts of the
job, she understands the needs of the clients very well.

[31]        
Mark Rizzardo, the physiotherapist who continues to treat Ms. Azuma-Dao,
was trained through the faculty of medicine.  He has a Bachelors of Physical Education
and a Masters in each of Physical Education and Physiotherapy.  He is the chief
therapist for the Canadian Olympic team.

[32]        
Mr. Rizzardo has treated Ms. Azuma-Dao since October of 2008.  He did
not contact her employer and had one initial communication with Ms. Azuma-Dao’s
family doctor.  He assesses Ms. Azuma-Dao each time she comes in, sets out the
routine, and leaves her to her exercises under the supervision of a kinesiology
student.  He says Ms. Azuma-Dao’s effort is constant and consistent.  She works
hard at her exercises and does not complain, but her improvement has been
slow.  He says Ms. Azuma-Dao suffers from hypermobility of her joints,
which necessitates strengthening the surrounding muscles.  Mr. Rizzardo
said he is trying to wean her off manipulations, get her to be more active and
to do more on her own.  Her mid-thoracic spine is her main problem, and she
still has flare-ups and zinging down her arm.  Mr. Rizzardo said Ms. Azuma-Dao
should be able to continue with exercises on her own at some point.

[33]        
Although his clinic supervises work fitness programs, Mr. Rizzardo felt Ms. Azuma-Dao
was not ready for a return to work program when she first came in in October of
2009.  He did not reassess her with that in mind because she did return to
work.  He said taking up a return to work program while working would mean she
would have to shut down everything else, as it is time consuming.

[34]        
In April of 2010, Ms. Azuma-Dao saw Dr. Vondette, a physiatrist.  He
recommended a work fitness program and said she needed a more intensive
program.  However, she continued with her physiotherapist instead.  I will deal
further with Dr. Vondette’s evidence at a later point in these reasons.

[35]        
The defendants called Ms. Singh, a kinesiologist from KARP rehabilitation,
to describe the program.  KARP is staffed by kinesiologists who are trained
through the faculty of education.  Their aim is to allow the person to return
to work gradually.  They contact employers and remain in contact with the
patient’s doctor.  They expect attendance 4 – 5 times a week for 1 – 2 hours a
session, at $60 session.  The length of treatment varies with the patient. 
Once the patient is back at work, they do a final report and their involvement
is at an end.

[36]        
Ms. Azuma-Dao was assessed by a doctor of the defendants’ choosing in
July of 2011, but that report was not tendered.

ISSUES AND POSITIONS OF PARTIES

Plaintiff’s position

[37]        
The plaintiff submits that she has suffered severe injuries leading to
chronic pain and limited abilities.  Her life has been substantially affected
over the long term, and her decisions respecting her career and treatment,
while differing from her doctor’s advice, have all been made in the interests
of mitigating her damages and ensuring her independence.  She says her physiotherapy
treatments have helped her and there is no evidence that KARP would have been
successful.

[38]        
The plaintiff claims:

non-pecuniary damages – $75,000

past loss of income – 3 years at $41,300 minus earnings of
$34,000 adjusted for tax = $71,679

future loss of capacity – $150,000

future cost of care (mainly physio treatments @ $6,000/year)
– $20,000

special damages (mainly physio
treatments and tuition costs) – $25,590

Defendants’ position

[39]        
The defendants say the plaintiff has not mitigated her damages, and has
failed to follow medical advice from Dr. Frank and Dr. Vondette.  The defendants
say an adverse inference should be drawn from the plaintiff’s failure to call
Dr. Frank, her family doctor.  In response, the plaintiff notes that Dr. Frank
was on the defendants’ witness list and was not called.

[40]        
The defendants say the plaintiff’s decision to change careers was her
own decision and was not caused by the accident.  She will likely make more as
a teacher in any event and will suffer no future loss.

[41]        
The defendants’ position on damages is:

non-pecuniary damages – $45,000 – $50,000

past wage loss to January 31, 2009 only, when Ms. Azuma-Dao
quit CLS against her doctor’s advice

future wage loss – none

future care costs – only a work fitness program is a valid
claim

specials – cut physio off at March 2009 because Ms. Azuma-Dao
should have followed her doctor’s advice and have completed a work fitness
program by then.  Her tuition costs are a result of her own decision to pursue
a teaching career, unconnected to the accident.

DISCUSSION

[42]        
It is not disputed, and I accept, that Ms. Azuma-Dao was injured in the
accident and that the injuries have caused her loss and damage.  The primary
issue between the parties is whether Ms. Azuma-Dao took reasonable steps to
mitigate her loss, or whether her decisions to forego an active work fitness
program against her doctor’s advice have been responsible for further loss on
her part.

[43]        
According to Chiu v. Chiu, 2002 BCCA 618 at para. 57:

In a personal injury case in
which the plaintiff has not pursued a course of medical treatment recommended
to him by doctors, the defendant must prove two things: (1) that the plaintiff
acted unreasonably in eschewing the recommended treatment, and (2) the extent,
if any, to which the plaintiff’s damages would have been reduced had he acted
reasonably.

[44]        
Ms. Azuma-Dao had Dr. Frank’s clinical notes of December 20, 2008 put to
her and admitted that Dr. Frank told her she ought to obtain approval from ICBC
for a KARP rehabilitation program to reacclimatize her to return to work.  Dr.
Frank did not think a change in employment was justified at that time.  Ms.
Azuma-Dao had been undergoing physiotherapy for two months by then, and had
tried three shifts at CLS in mid-November.  She testified that as she could not
do all the work, she did not think a gradual return to work would be
successful.  She admitted she knew that a work fitness program would be aimed
at building her strength and allowing her to return gradually to normal
duties.  However, she decided not to follow Dr. Frank’s advice and enrolled in
SFU instead because she wanted a back-up plan if she did not recover physically.

[45]        
I will mention the issue of adverse inference at this point.  Since all
of Dr. Frank’s clinical notes were provided to the defence and Ms.
Azuma-Dao admitted the relevant portions on cross-examination, I am not
prepared to draw an adverse inference against the plaintiff for failing to call
Dr. Frank, who was of course available to either side and was in fact on the
defendants’ witness list.  However, since the defence gained what they required
on cross-examination of the plaintiff, they cannot be faulted either for not
calling Dr. Frank.

[46]        
Dr. Vondette, a physiatrist who saw Ms. Azuma-Dao in April of 2010, noted
her neck and back pain and found her to be deconditioned, with possible substantial
gains if she is “able to commit herself to a long-term, diligently performed
daily reconditioning exercise programme.”  He noted her migraine headaches,
which might warrant neurological assistance, and her sleep disruption.  In the
report, Dr. Vondette referred to Dr. Frank’s view that it was important to
assure Ms. Azuma-Dao that she had not suffered a devastating injury and she
should work hard to get reconditioned to acquire “work fitness.”  He noted
that, to this end, Dr. Frank recommended an “exercise-oriented reconditioning
program” such as KARP, but Ms. Azuma-Dao did not attend one.  Dr. Vondette
said:

In my opinion, Dr. Frank and Mr.
Rizzardo have had the best of intentions during their interactions with Ms.
Azuma-Dao.  However, with the benefit of hindsight, it is my opinion that to
date she remains underinvestigated and undertreated.  One can never know now
for sure whether a more intensive exercise-oriented programme would have made a
dramatic difference in her clinical course, it likewise being impossible to
know whether counselling and/or antidepressant therapy might have significantly
improved her emotional health or helped her raise her “pain threshold”.

[47]        
He thought Ms. Azuma-Dao might have spinal facet joint or disk
pathology, yet to be identified through advanced diagnostic techniques.  Dr.
Vondette was of the opinion that, while Ms. Azuma-Dao was deconditioned by the
accident, her pain threshold was lowered because of anxiety and depression.

[48]        
Counsel for the defendants took issue with Dr. Vondette’s expertise to
comment on psychological issues.  Dr. Vondette said basic psychological
training was not only covered in medical school, but it is an essential part of
his overall examinations, and he would not be doing his job if he could not
recognize depressive symptoms when he saw them, which was very often.

[49]        
Dr. Vondette listed a number of symptoms and complaints which led him to
conclude Ms. Azuma-Dao suffers from depression – sadness, tearfulness,
difficulty deriving enjoyment, sleep dysfunction, irritability, listlessness,
fatigue, weight gain, difficulties concentrating – but admitted psychologists
and psychiatrists were specifically trained to treat and medicate such a
condition.

[50]        
I accept Dr. Vondette’s general observation that Ms. Azuma-Dao is
depressed.  Whether she meets the criteria for a psychiatrically diagnosed
depressive disorder and requires treatment should be left to the psychiatrists. 
Although Dr. Vondette did make recommendations for counselling, the plaintiff
did not seek damages to cover future psychological treatment in any event.

[51]        
In cross-examination, Dr. Vondette said KARP was one of many exercise
oriented rehabilitation programs, but he would expect Mr. Rizzardo to recognize
what was required and to adjust the physiotherapy accordingly, and he would
leave it with him to do his job.  This is somewhat at odds with his report, in
which he recognized Mr. Rizzardo’s expertise but was of the opinion that more
was needed than was being provided by Mr. Rizzardo, despite the combination of
passive therapies and active training that Mr. Rizzardo had put in place.

[52]        
Overall, Dr. Vondette’s prognosis was for a substantial improvement “in
the distant future,” but only if Ms. Azuma-Dao received a much higher
level of conditioning than she is presently receiving.  Given that her symptoms
had already lasted two years post accident by the time he saw her, Dr. Vondette
recommended a long term daily reconditioning program and the use of a fitness
facility for a year, with a monitored exercise program.  He was of the view
that, despite the probability of improvement, she would always require
accommodations if she were to resume her physically demanding former job.

[53]        
Ms. Azuma-Dao said she did not read Dr. Vondette’s report until December
2010.  By December of 2010, Ms. Azuma-Dao had completed her program at SFU and
was on call at CLS.  However, she did not attempt a more intensive program as
recommended, but continued with her physiotherapy.

[54]        
According to Ms. Singh, KARP is directed towards the specific
requirements of a particular job, with consultations with the employer to
determine if there are light duties available, or whether a gradual return to
work is warranted.  They also communicate with the family doctor at regular
intervals.  The treatment is daily over a period of several weeks.  Ms.
Rizzardo expressed some skepticism about KARP because it is staffed by kinesiologists
rather than physiotherapists, and because he feels they assume an artificial and
unrealistic healing rate of six weeks for all patients.

[55]        
The plaintiff says the defendants have failed to prove that any other
course of treatment would have made any difference to Ms. Azuma-Dao’s rate of
recovery.  However, two doctors recommended a different course of treatment
than the one Ms. Azuma-Dao decided upon on her own.  The program recommended by
Dr. Frank and Dr. Vondette would have involved daily attendance at an
intensive rehabilitation program for a period of several weeks, even months,
with the goal of a gradual return to work at CLS.  Instead Ms. Azuma-Dao chose
to attend school and take physiotherapy twice a week for the past three years.

[56]        
Ms. Azuma-Dao has not shown much improvement through physiotherapy, nor
is there a suggestion from Mr. Rizzardo as to if or when substantial
improvement is expected.

[57]        
As Dr. Vondette says, one cannot know for sure whether an intensive
rehabilitation program would have made a dramatic difference to her clinical
course, but that is always the case with paths not taken.

[58]        
The onus is on the defendants to prove that a reasonable patient, having
all the information at hand that the plaintiff possessed, ought reasonably to
have followed the recommended course of treatment.  Next, the extent, if any,
by which the treatment would have been reduced by the treatment must be
considered (Gregory v. ICBC, 2011 BCCA 144, 17 B.C.L.R. (5^th)
101).

[59]        
The determination of the consequences of an unreasonable refusal of
treatment involves consideration of foreseeability and remoteness.  The trier
of fact must consider what damages were avoidable by assuming the plaintiff
agreed to an alternative course which has not yet occurred, take into account
any substantial possibility of failure, and the amount by which full
compensation would be discounted would represent avoidable loss (see paras. 39
and 45 of Janiak v. Ippolito, [1985] 1 S.C.R. 146, which is the case upon
which the Court of Appeal’s decision in Chiu is based).

[60]        
There is no dispute that exercise and therapy are useful for injuries of
the type sustained by Ms. Azuma-Dao, and she has attended physiotherapy
regularly.  However, two doctors recommended a program that was specifically
directed at increasing her work fitness for her particular job, in consultation
with her employer and her doctor.  I conclude that Ms. Azuma-Dao should
reasonably have investigated whether funding was available for the KARP (or another
intensive work fitness) program, as recommended by Dr. Frank and Dr. Vondette,
and should have taken the treatment.  To refuse to follow medical advice, quit
her job very hastily to retrain as a teacher, and rely only on physiotherapy is
a failure to mitigate.

[61]        
As for the second part of the test, the approach set out in Janiak v.
Ippolito for analyzing the extent by which damages would have been reduced
for failure to mitigate is somewhat similar to that used for assessing
contingencies, and Ms. Azuma-Dao should not be subject to an inappropriate
double discount, where the factors to be considered are the same.  I will
consider this further when assessing past loss of income.

PAST WAGE LOSS

[62]        
Ms. Azuma-Dao testified that but for the effects of the accident, she
had intended to remain full time at CLS.  Although briefly interested in
teaching when in high school, she had no intention to train as a teacher.  She
said she went back to school only as a result of the accident, in order to have
a back-up plan in case she did not recover physically.  In fact she has not fully
recovered, and she says that now that she has another career to fall back on,
it is actually to the defendants’ benefit.

[63]        
She takes the position that she should receive wage loss up to the date
of trial (as well as compensation for the expenses of her program at SFU, under
the head of special damages).

[64]        
Ms. Azuma-Dao’s income in 2007 was $32,964.  Based on her earnings up to
September of 2008, she would have made $41,301 that year.  After the accident,
in 2009, she made $14,626; in 2010 she made $7,697; in 2011, about $13,000, for
a total of $35,300.10.

[65]        
Ms. Azuma-Dao calculates her past loss of income by taking $41,300 x 3 ($123,900)
less her actual earnings, which gives a total of $89,599.90, adjusted to $71,679.92
using a 20% tax rate.

[66]        
The defendants say Ms. Azuma-Dao made an unreasonable choice in quitting
her job against her doctor’s advice.  Her decision was not medically recommended
or justified.

[67]        
The defendants suggest that although the timing of the plaintiff’s
change in careers might have been prompted by the accident, the decision to
become a teacher was not.  Teaching was an interest of the plaintiff’s in high
school, and her sister, who initially stimulated Ms. Azuma-Dao’s interest in
working at CLS where the sister also worked, became a teacher after she left
CLS.

[68]        
The defendants say Ms. Azuma-Dao should receive wage loss only to the
end of January 2009, which is when she quit her full time job at CLS.

[69]        
The decision to quit CLS and enrol in SFU was made very quickly – first
enquiries were made in October, a month after the accident, and enrolment took
place a month after that.  Ms. Azuma-Dao tried three shifts at work in mid-November,
but as she was unable to do all the work required, she decided not to follow
her doctor’s recommendation to try the work fitness program.  By January, Ms.
Azuma-Dao had quit her job at CLS and enrolled in SFU for four months.

[70]        
On the one hand, it is admirable that Ms. Azuma-Dao took the initiative
to change careers and retrain on the chance she would not get better.  However
if that decision prevented her from getting back to her pre-accident employment
and earning income, if she were able to do so, it is not a reasonable one within
the context of failing to mitigate her losses.  As well, the decision was hasty
and against her doctor’s advice.

[71]        
However, although I agree with the defendants that the plaintiff should
reasonably have followed her doctor’s advice and taken an intensive work
fitness course before deciding to quit her job and retrain, I do not accept
that she would have been back full time in January of 2009, if she had not been
going to school.  She was still suffering the effects of the accident that
prevented her from performing fully at CLS, even though she was working light
duties at the PNE and CLS once she completed her classes.  In fact, it was at
this time that her doctor recommended she try the KARP program, which would
normally have taken several months.  If she had not been successful at KARP she
would have had to retrain in any event.

[72]        
There is a possibility that Ms. Azuma-Dao might have considered teaching
in the future in any event, given how quickly she quit her job and embarked on
that career path following the accident.  However, I am satisfied that but for
the accident, she would have continued working at CLS at least until the date
of trial.  This is based on her age, her level of physical fitness, and her evidence
and that of others associated with her as to how much she enjoyed her job at
CLS.  Therefore she is entitled to wage loss associated with her CLS job until
the date of trial.

[73]        
However, that wage loss must be adjusted for the substantial possibility
that she would have returned to work at some point, at least part time with
accommodations, had she followed her doctor’s advice to take a work fitness
program and not to quit her job.  Since she was working at the PNE during the
summer of 2009 up to the end of November 2009, and was able to do shifts at CLS
by that time, the likelihood of her return to work at least part time is very
high.  If she had followed her doctor’s advice and taken the work fitness
program in the spring of 2009, the substantial possibility of return to work at
CLS after her job at the PNE ended in November is even higher.  Ms. Azuma-Dao
chose not to work and to go back to school, but I conclude that she had a high
likelihood of being able to return to work, at least part time, at CLS during
that period, continuing to the date of trial.  I therefore reduce her wage loss
for that period by 30%.

[74]        
Therefore, she is entitled to full compensation for wage loss up to the
end of May 2009 by which time she should have completed the intensive work
fitness program recommended by her doctor, a recommendation confirmed by Dr. Vondette. 
Thereafter she is entitled to wage loss to the date of trial, reduced by 30%.  She
was working full time at the PNE from June to November, and obviously that amount,
along with other amounts she earned during the entire time, are to be deducted
from the award.

[75]        
I leave the calculation of past wage loss to counsel, given these
findings, to be spoken to if agreement cannot be reached.

NON-PECUNIARY DAMAGES

[76]        
I have considered the cases on non-pecuniary damages submitted by both
parties.

[77]        
Cases submitted by the plaintiff:

Kasidoulis v. Russo, 2010 BCSC 978:  38 year old
plaintiff suffering from debilitating mid and low-back pain resulting in low
energy, social withdrawal, and significant loss of enjoyment of life; some
improvement possible if she were provided with resources to pursue a
comprehensive rehabilitation program. ($90,000).

Boyle v. Prentice, 2010 BCSC 1212: 32 year old
plaintiff with permanent ongoing low back pain, significantly affecting her
lifestyle, ability to interact with her children and keep up her standards of
housekeeping which were important to her. ($65,000).

Knight v. Belton, 2010
BCSC 1305: hardworking mother of two, several months of headaches, vertigo and
neck pain.  Chronic mid-back and periodic right shoulder pain.  Loss of energy,
activities restricted, with children and in general. ($75,000)

[78]        
Cases submitted by the defendants:

Sandher v. Hogg, 2010 BCSC 1152: 23 year old
plaintiff, still suffering ongoing daily pain in shoulder, lower back and hip,
sleep difficulties; some improvement expected with structured exercise program
($40,000)

Baxter v. Jamal, 2010 BCSC 289: 26 year old plaintiff
suffering headaches, numbness in fingers, neck, back, hip and knee pain 4
½ years post accident, significant impact on career and recreational activities.
($50,000)

Sharpe v. Tidey, 2009 BCSC
948: 29 year old plaintiff, ongoing pain continuing at trial, restricting
activities to some degree, but family and career demands contributed to that as
well. ($40,000)

[79]        
It is evident from a review of these cases that it is difficult to
reconcile them all.  Any list of symptoms will give rise to a number of cases
that seem generally comparable but which provide a fairly wide range of awards
of damages, depending on the many factors that go into each trial judge’s
assessment of the evidence.

[80]        
The plaintiff’s life has changed substantially as a result of the
accident, and she suffers chronic pain.  From a fit, very active person, she
has become withdrawn, moody, and deconditioned.  Her friends and her husband
find her to be a different person, no longer active and happy go lucky.  She
endures pain every day, but she works very hard at her exercises.  Her work
with disabled adults was very important to her and required a fit strong body,
which she no longer has.  Despite her withdrawal, she maintains a social life,
but the activities she and her friends do are now more sedentary.

[81]        
I set her non-pecuniary damages at $65,000.  I would not reduce this amount
for failure to mitigate.  There is an insufficient evidentiary basis to
conclude that her decision not to take the KARP program lessened her pain,
suffering, and loss of amenities.  While there is evidence to support her
ability to return to work at CLS, at least part time, that would likely entail
accommodations.  In other words, the quality of her life would still be
affected, even if she were able to perform limited functions at her previous
job after taking the KARP program.

FUTURE WAGE LOSS

[82]        
Given the plaintiff’s change of career and her choice of teaching, which
has barriers to employment that are not the fault of the defendants, but which
may result in a higher salary in the long run, it is appropriate to use the
loss of capital asset approach rather than the substantial possibility approach
when assessing future loss.  She is now, through retraining, available for some
occupations that were not previously open to her, but she is also foreclosed
from more physical jobs.

[83]        
Although now trained as a teacher, Ms. Azuma-Dao is having difficulty
getting employment and must first go through a period of substitute teaching
before she can hope for a full time position.  She has physical limitations as
a result of the accident that preclude her from working at jobs with heavy
physical requirements.  This is not a situation where the plaintiff would not
have worked at physical jobs in any event.  She was extremely fit before the
accident and well suited for her job at CLS which had considerable physical
demands.  She was able to work two jobs at once for several months of the year,
enjoyed both of them and was seen by both employers as a valuable employee.

[84]        
I am satisfied that the plaintiff has demonstrated a real and
substantial possibility of income loss in the future as a result of the
injuries suffered in the accident.  Considering the well-known factors in Brown
v. Golaiy, (1985), 26 B.C.L.R. (3d) 353 (S.C.), Ms. Azuma-Dao is now less capable
overall of earning income from all types of employment, less valuable to potential
employers and to herself as an income earner, and is less able to take all
types of jobs including the one she had before the accident.  This is not
trivial loss for her.  She relied on her physical abilities in her jobs and
enjoyed her work very much.  However, she has now trained for a new career that
will likely result in a higher salary than her previous job at CLS, assuming
she is able to get and sustain employment as a teacher.

[85]        
Considering all of these factors, I set her the loss of the capital asset
of her employability at $60,000.  I would not reduce this amount for failure to
mitigate for the same reasons as set out above in paragraph 81.

COST OF FUTURE CARE

[86]        
Mr. Rizzardo did not give an estimate of how much longer Ms. Azuma-Dao
might be expected to attend his clinic twice a week.  Ms. Azuma-Dao obviously
needs more treatment because she has not progressed to a fully functional
level, but there was little assistance provided from Mr. Rizzardo to assess the
type of treatment she requires (other than more of the same) or the duration of
the treatments (other than for as long as it takes).  In view of Dr. Vondette’s
opinion that Ms. Azuma-Dao has been under-investigated and undertreated, and
needs more intensive conditioning, this is not helpful.

[87]        
The duration of a work fitness program would be, according to the
witness from KARP, four weeks to three months, 4 – 5 times a week, at $60 per
session.  This is the type of program that has been recommended by both Dr.
Frank and Dr. Vondette.  Dr. Vondette also recommended the use of a
fitness facility for a year.

[88]        
Using the cost of a work rehabilitation program as a guide, and
including an allowance for a gym membership and supervised exercise, I set the
cost of future care at $5,000.

SPECIAL DAMAGES

[89]        
The plaintiff has experienced some benefit from the ongoing physiotherapy,
even though she did not have medical advice to support undertaking it on such a
long term basis and it has not resulted in a return to a level of fitness that
would allow her to fulfil the physical requirements of her former job at CLS.  Nevertheless,
Dr. Vondette was of the opinion that the treatment provided by Mr. Rizzardo,
though not as intensive as it should have been, was useful.  In fact, while
undergoing physiotherapy, Ms. Azuma-Dao has managed to attend school and work
part time.  Since it has provided her with some relief and improvement in
symptoms caused by the accident, I will allow the physiotherapy costs ($15,563). 
The doctor’s notes ($150), medications ($35.22) and aqua-fit classes ($39.50)
are allowed.

[90]        
Ms. Azuma-Dao also claims the costs of tuition for her teaching program at
SFU.

[91]        
Ms. Azuma-Dao has received wage loss for the period during which she was
attending school, adjusted for contingencies and the failure to mitigate.  The
amount spent on tuition during that period has enabled her to embark on another
more lucrative career.  Although I have found she could have returned to work at
least on a part time basis with accommodations, I am satisfied that there is a
substantial possibility that Ms. Azuma-Dao would have had to retrain in any
event because of the accident.  Even if she could have continued at CLS in a
limited capacity with accommodations, the joy she took in that job was greatly
curtailed by her inability to do all aspects of it.

[92]        
On the other hand, there is a substantial possibility that she would
have wished to retrain at some point in the future, even if the accident had
not occurred.  This is based on her earlier interest in teaching and the
promptness of her decision to take education prerequisite courses following the
accident.  Ms. Beaudoin testified that, although Ms. Azuma-Dao had functioned
very well at CLS, generally they have a high burn out rate.  There is also a
possibility that she would have recovered fully and returned to work at CLS.

[93]        
I will allow the costs of attending SFU ($9,288.40 for tuition and
$513.45 for books) reduced by 50% to allow for those contingencies.  It is
worth noting that the defendants have the advantage of the initiative shown by
Ms. Azuma-Dao in incurring the costs of retraining because that decision
reduced her risk of lost income in the future.

RESULT

[95]        
Unless there is a reason to speak to costs, the plaintiff shall have her
costs at Scale B.

“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries