IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120217

Docket: M105334

Registry:
Vancouver

Between:

Patricia Jennifer
Fell

Plaintiff

And

Lovena Morton and
Ralph Allan Liebel

Defendants

Before:
The Honourable Madam Justice Fenlon

Oral Reasons for Judgment

[1]            
THE COURT: The 36-year-old plaintiff, Jennifer Fell, was injured
two years and nine months ago when the car she was driving was rear-ended by
the defendants’ vehicle. Liability for the accident is admitted. Causation and
quantum remain in dispute.

[2]            
There are two main issues:  first, whether the plaintiff’s back and neck
pain and migraine headaches were pre-existing problems that were temporarily
aggravated by the accident before returning to baseline; and second, whether
the plaintiff has suffered loss of earning capacity due to her injuries.

[3]            
At the time of the accident, Ms. Fell was self-employed in the film
industry as a first aid/craft services provider, which involved being on
location during filming to provide first aid at a Level 3 certification as
needed, and to provide snacks and light meals for actors, directors, and the
film crew, including any extras.

[4]            
At times, Ms. Fell was responsible for providing these services for
up to 1,000 people a day. She often worked 16-hour days, Monday to Friday, had
Saturday off, and then spent eight hours on Sunday shopping to purchase food
for the next week.

[5]            
A project could last from days to months, and it was typical for Ms. Fell
to work intensely during the course of a project and then to take a month or
two off before starting another. Ms. Fell had been working in the film
industry for about 10 years at the time of the accident.

[6]            
Following the accident, she continued to work as a first aid/craft
services provider until taking a maternity leave just before the birth of her
second child in July 2011. She was on maternity leave at the time of trial.

What injuries has Ms. Fell sustained?

[7]            
The plaintiff claims that she suffered the following injuries in the May
2009 accident:  headaches, migraine headaches, injury to her neck, injury to
her upper back and shoulders, numbness and tingling of the left arm and left
leg, and injury to the left wrist.

[8]            
The injury to her left wrist, numbness and tingling in the left arm and
leg, and pain going into her left leg, all resolved within a few weeks of the
accident. Ms. Fell says
that her back, neck, and shoulder pain persist, as do debilitating migraine
headaches, although the symptoms have decreased in frequency, with the
migraines occurring once or twice a month rather than weekly.

[9]            
There is substantial agreement among the medical professionals who
assessed and/or treated Ms. Fell. They acknowledge that she suffered soft
tissue injuries in the accident and that she remained symptomatic as of the
date of trial. They also agree that soft tissue injuries in her neck and upper
back trigger headaches which can turn into migraines.

[10]        
The experts disagree on whether the accident is the cause of Ms. Fell’s
ongoing back and neck pain and her migraines. The plaintiff’s medical experts
say the accident is the cause; the defendants’ medical expert holds the opinion
that Ms. Fell’s back and neck complaints and migraines predated the
accident and were only aggravated by the accident for about one year before
returning to pre-accident levels.

[11]        
It is, therefore, necessary to choose between the medical opinions. I
begin with the plaintiff’s pre-accident condition. There is common ground that
the plaintiff experienced neck tightness and pain brought on by the relatively
heavy physical nature of her work, and that muscle tightness in her neck would
cause headaches. It is also common ground that the plaintiff has, since
puberty, suffered from migraine headaches that occurred on average once each
month, being triggered by the hormonal fluctuations associated with her
menstrual cycle.

[12]        
The plaintiff says the migraines increased in frequency in the first
three months of her first pregnancy in 2004, but stopped in the second
trimester and did not recur after her son was born in 2005. If the plaintiff’s
evidence is accepted, she was migraine-free for about four years before the
accident.

[13]        
The defendants’ expert, Dr. Christian, is an orthopedic surgeon. He
based his opinion that the accident did not cause Ms. Fell’s migraines on
the assumption that she was suffering from migraines right up to the time of
the accident. Not surprisingly, he therefore concluded that the accident
temporarily exacerbated the neck pain and increased the frequency of headaches,
but was not the cause of those problems.

[14]        
Dr. Christian’s assumption was based on the records of Dr. Sheikh,
a chiropractor from whom the plaintiff sought treatment starting in February
2009, about three months before the accident. These treatments were ongoing. The
plaintiff had been to the chiropractor on the morning of the accident.

[15]        
The intake records of the chiropractor record that, in response to the
question "What would you like the chiropractor to help you with?", Ms. Fell
wrote "Neck/back pain, headaches."  In response to the question,
"How does the above affect your daily life or activities?" Ms. Fell
wrote, "Always uncomfortable. Sometimes unable to lift or carry
objects."

[16]        
Dr. Sheikh took a medical history from Ms. Fell and he
recorded under the heading, "Migraines":  “One time per month, nausea, vomit, less with cycle since
baby, since puberty.”

[17]        
The defendants submit that the logical and plain meaning of this note is
that the plaintiff was suffering from migraines once per month in February
2009, but had suffered from them even more frequently before her first
pregnancy.

[18]        
Dr. Sheikh testified at trial, but could not recall his discussion
with Ms. Fell, nor could he add anything to the note he had made. He could
not say whether he was referring to Ms. Fell’s experience with migraines
in the past or her current experience.

[19]        
I do not find Dr. Sheikh’s note to be as clear as the defendants
would have it. Histories taken by other doctors Ms. Fell saw record
monthly migraines commencing in puberty that essentially stopped after her
first son was born, although she also told them she might have had one migraine
headache since. It is quite possible that Dr. Sheikh’s note "less
with cycle since baby" was a summary of that information. In any event,
given the ambiguity in the chiropractor’s notes, all of the evidence on this
issue must be considered.

[20]        
The PharmaNet records show use of migraine prescription drugs up to
2005, when Ms. Fell’s first son was born, and not thereafter until after
the accident, a period of about four years. The hospital records, too, show no
hospital visits to the emergency room to seek assistance with controlling
migraines, and there have been two such visits since the accident.

[21]        
Finally, there is no evidence that Ms. Fell missed work due to
migraines between 2005 and the date of the accident, whereas there was
compelling evidence from Nancy Kress, (another first aid/craft services
provider who is more senior to Ms. Fell and who often hired her to manage
the second unit on a film project), that Ms. Fell had difficulties
performing her work after the accident because of severe headaches. Ms. Kress
related finding Ms. Fell sitting in a truck trying to cope with such a
headache, and noted that she often looked glassy-eyed and unwell as she tried
to work after the accident.

[22]        
Although neither Dr. Hershler, the physiatrist called by the
plaintiff, nor Dr. Robinson, a neurologist and headache specialist called
by the plaintiff, had the benefit of reviewing the chiropractic records before
they provided their opinions, neither expert moved off his opinion that what Ms. Fell
was experiencing post-accident was qualitatively different from what she had
experienced in terms of headaches and neck stiffness prior to the accident. Both
accepted that, based on the history and medical evidence, Ms. Fell had
experienced a marked increase in migraine headache activity after the accident
that continued to the date of their last assessment.

[23]        
Having considered all of the evidence, I find that Ms. Fell
suffered soft tissue injuries to her upper neck and back as a result of the
accident. I further find that those injuries triggered a recurrence of migraine
headaches that had been almost entirely in remission since the birth of her
first son.

[24]        
The migraines initially occurred twice per week, gradually decreasing to
about once or twice each month by the time of trial. Ms. Fell’s headaches
are debilitating, involving nausea and extreme sensitivity to light and sound. They
sometimes last for two or three days, and all Ms. Fell can do is lie in a
darkened room. She could not
attend her wedding reception in Mexico in April 2010 because of a migraine
headache.

[25]        
The migraine headaches Ms. Fell has experienced since the accident are
also more difficult to control than the headaches she experienced prior to the
birth of her first child. In relation to the latter headaches Ms. Fell described
being able to take Advil and Tylenol and migraine medication when she felt a
headache developing, and generally being able to stay on top of the migraine. In
contrast, now she is completely incapacitated by the migraines and cannot
function. As she described it, she "gets lost in the headache" and
cannot seem to pull herself out of it.

[26]        
As for the prognosis, the medical experts agree that there is potential
for improvement in Ms. Fell’s condition over time, although Dr. Hershler
qualified that opinion by saying that improvement would not mean a full return
to pre-accident condition, but rather an improvement in the plaintiff’s ability
to function with her limitations.

[27]        
Having determined that the accident caused Ms. Fell’s current
problems, I must also consider, in accordance with Athey v. Leonati, [1996]
3 S.C.R. 458, para. 35, whether there were pre‑existing injuries and
"a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence". The latter question is relevant because the
plaintiff is only entitled to be restored to her original position.

[28]        
I find that prior to the accident Ms. Fell tended to suffer
regularly from neck and upper back pain and headaches that were brought on by
exertion. She sought regular massage therapy and chiropractic treatment in
relation to those symptoms. She also had a proclivity to develop migraine
headaches, and that condition meant she was susceptible to something else
triggering her headaches in future.

[29]        
Ms. Fell should not be compensated for her pre‑existing
condition or the potential for it to reoccur quite apart from the injuries
sustained in the motor vehicle accident.

What non-pecuniary damages should be awarded to Ms. Fell?

[30]        
An award of non-pecuniary damages compensates a plaintiff for loss of
amenities, pain, suffering, and loss of enjoyment of life. In Stapley v.
Hejslet, 2006 BCCA 34 at para. 46, the Court of Appeal outlined the
factors a trial judge should consider when assessing such damages:

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(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;

I would add the following factors, although they may arguably
be subsumed in the above list:

(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).

[31]        
The defendants submit that, based on mild soft tissue injury and
migraine headaches that were aggravated for about 12 months with some residual
soft tissue flare‑ups since, an appropriate award of damages for pain and
suffering is $30,000 to $40,000.

[32]        
Based on my finding that the migraine headaches did not return to
baseline levels, but have increased significantly since the accident and remain
a problem along with the soft tissue injuries, I find that range of non-pecuniary
damages to be too low.

[33]        
The plaintiff relies on cases with similar fact patterns in which
damages for pain and suffering and loss of enjoyment of life have been awarded
between $65,000 to $120,000, and submits that an award of $80,000 would be
appropriate in this case.

[34]        
Awards of damages in other cases provide a guideline only. I must apply
the factors listed in Stapley to Ms. Fell’s particular
circumstances.

[35]        
By all accounts, Ms. Fell used to be a cheerful, outgoing, enthusiastic,
and exceptionally hard-working woman, who managed the responsibilities of her
own business, motherhood, and home without difficulty. She worked hard during
the week when she was on a project, but still had the energy on weekends to do
housework and recreational activities with her husband, including dog walking,
camping, and spin classes.

[36]        
Since the accident, Ms. Fell’s injuries have caused her to be more
irritable. She regularly spends a day or two in bed with a migraine, unable to
participate in the care of her young children, their activities, or
recreational outings with her husband. After struggling to carry on as a first
aid/craft services provider for two years after the accident, Ms. Fell has
accepted that she is unable to perform at her previous level. She has sold her
cube van and some of her equipment. She is on maternity leave at this point,
but intends to retrain as a lab technician.

[37]        
I refer to this under the non-pecuniary head of damages because the loss
of this occupation goes beyond the ability to earn income. First aid/craft
services provider is a unique occupation that combined Ms. Fell’s two
passions, healthcare and cooking. It was the perfect job for her in many ways,
permitting her to work hard in stretches, and then to spend a few months at a
time as a full‑time mother. Although Ms. Fell may be able to replace
the income she earned annually as a craft services provider, she will not
likely be able to find another job that permits her to earn that amount of
money in short periods of time, doing an occupation she loves.

[38]        
Ms. Fell is a stoic individual whose attitude in the face of life’s
difficulties is to get on with it, in her words, "to suck it up". She
should not receive a lower award of non-pecuniary damages because of that
stoicism. Indeed, to the contrary, it is appropriate to include under this head
the suffering she endured while she pushed herself to keep working after the
accident, despite her injuries.

[39]        
In summary, the injuries from the accident have affected all areas of Ms. Fell’s
life. While she has periods of time when she is unaffected by her injuries, in
particular when she avoids exertion, she has curtailed her recreational
activities, no longer camping, exercising at the same level, or taking her dogs
for on-leash walks with her husband. She has found it difficult to pick up her
children and cannot interact with them when she has a migraine. However, as I
have earlier noted, I must also take into account her pre‑existing
condition and proclivity to develop migraine headaches.

[40]        
Taking all of these considerations into account, I set non-pecuniary
damages at $65,000.

What special damages should be awarded?

[41]        
The plaintiff seeks out‑of‑pocket expenses of $6,843. The
defendants admit that massage therapy, chiropractic visits, and prescriptions
12 months following the accident are payable in the amount of $1,460.90. The
defendants submit that the remainder of the expenses sought were incurred after
the plaintiff returned to her baseline condition or were not services
recommended by doctors in relation to her injuries.

[42]        
I have found that the plaintiff’s injuries did not resolve within one
year, and accordingly do not accept the 12‑month cut‑off. But in
light of the plaintiff’s pre-accident use of massage therapy and chiropractic
services, I would allow about one‑half of those expenses after May 2010,
when the frequency of her symptoms decreased.

[43]        
The treatments were recommended and provided by qualified healthcare providers,
and I do not find them to be unreasonable in these circumstances.

[44]        
I also allow the prescription and non‑prescription medical
expenses.

[45]        
In the result, the plaintiff is awarded special expenses for
prescriptions of $352.16, non‑prescription expenses of $58, massage
therapy expenses of $2,056.53, mileage and parking of $3.75, acupuncture treatments,
$38, and chiropractic treatments of $1,665, for a total of $4,173.44, which I
round to $4,175.

What is the cost of future care?

[46]        
In order to recover damages under this head, the plaintiff must prove
that there is a real and substantial possibility that she will incur future
care costs as a result of the injuries sustained in the accident. Those future
expenses do not have to be a medical necessity, but they must be medically
justified and reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.).

[47]        
The plaintiff seeks $5,000 to $7,500 to cover the cost of prescription
and over‑the‑counter medications, as well as massage therapy and
active rehabilitation and chiropractic. She also seeks the sum of $25,000 to
cover Botox injections to relieve the muscles causing headaches ($400 to $600
per treatment every three months, or $2,000 per year). The $25,000 reflects
about half of the cost to maintain that treatment over Ms. Fell’s
lifetime.

[48]        
The defendants submit that nothing should be paid for Botox treatments,
because the plaintiff has not tried them and there is no guarantee, according
to the plaintiff’s own expert, that they would be successful. The defendants
further submit that no sum should be awarded for future care costs, given Ms. Fell’s
pre-accident need for massage, chiropractic, and medications.

[49]        
I will deal first with the claim relating to Botox treatments. Ms. Fell
has not tried Botox treatments, identified as a possible treatment by Dr. Robinson,
because she was pregnant and is now breastfeeding, and Botox injections are
contraindicated in those circumstances. The effectiveness of the Botox
treatments is speculative and they are very expensive. I conclude that the
plaintiff has failed to prove that they are either medically justified or
reasonable expenses.

[50]        
I turn now to the other treatment modalities. I accept that Ms. Fell
may incur some additional chiropractic, acupuncture, and massage therapy costs
as a result of the migraine headaches and soft tissue injuries sustained in the
accident, and may benefit from an active rehabilitation program. However, given
her baseline use of chiropractic and massage therapy, I allow $2,500 under this
head of damages.

Has the plaintiff proved past wage loss?

[51]        
Ms. Fell submits that, but for the accident, she would have
completed at least one additional feature for IATSE, the union for which
higher-end film work is done. She says she would have done fewer television
series work and made-for-television movies, both of which have lower budgets,
are shorter in duration, and generally do not pay as well.

[52]        
Ms. Fell says she has lost income to date because she shifted from
working on features to job‑sharing on television series, and also took a
longer maternity leave of 12 months after her second son was born in July 2011,
rather than the four months she had taken with her first son born in November
2005.

[53]        
The plaintiff’s claim for past wage loss is based on lost opportunity
and must be assessed, as all hypothetical events must be, on the standard of
reasonable possibility rather than on a balance of probabilities.

[54]        
The defendants quite rightly point out that the plaintiff did not tender
evidence of offers of work turned down or of the availability of better-paying
work open to her. However, Ms. Kress testified that there was "enough
work to go around in 2010 and 2011". I do not accept the defendants’
submission that, because Ms. Kress did not turn work away in 2010 and
2011, it follows that there were no other features available for Ms. Fell
to work on (the implication being that Ms. Fell would only get the work Ms. Kress
turned away and sent to her.)

[55]        
Ms. Kress acknowledged that she was one of many leading craft service
providers. It is unlikely, in my view, that she would know about or be
approached about every feature being filmed in Vancouver. Ms. Kress did,
however, acknowledge that the industry had slowed down in 2010 and 2011,
compared to 2008 and 2009.

[56]        
The defendants also point out that the plaintiff’s income tax returns do
not support her contention that she was earning less money after the accident
than she was before. In the three years pre-accident, the gross revenues earned
through the company Ms. Fell incorporated were as follows:  in 2006,
$116,700; in 2007, $77,500; in 2008, $132,800; in 2009, the year of the
accident, $101,300, and in 2010, the year following the accident, her gross
revenues were $109,900.

[57]        
The plaintiff’s personal income drawn from her company in those years
was surprisingly low given her gross revenues:  in 2006, $18,700; in 2007,
$36,400; in 2008, $12,200; in 2009, $14,750; in 2010, $53,175.

[58]        
Ms. Fell could not explain the reason for such low net income,
attributing it perhaps to equipment purchases such as her truck and other kit,
or to cell phones and part of her vehicle expenses being allocated as corporate
expenses. She did not have to pay for the food supplies she used in her
business, which were reimbursed as an out‑of‑pocket expense by the
production company. The low income figures are puzzling, especially given her
pre-incorporation income of $47,000 in 2000, $38,000 in 2002, and $94,400 in
2003.

[59]        
The plaintiff’s understanding of her personal and corporate finances,
and the evidence she led on this subject can only be described as
extraordinarily deficient.

[60]        
In assessing loss of opportunity, I am mindful that the question is not
whether Ms. Fell made as much or even more than she did before the
accident, but whether she would have made more than she did in those years but
for her injuries. In that regard, a summary of the plaintiff’s work on features
from 2000 to date supports her submission that she did less IATSE work after
the accident: in 2008, she worked 177 days doing features; in 2009, 152 days;
in 2010, 113 days; and in 2011, a year for which income tax returns are not
available, 41 days in the six months prior to maternity leave, which extrapolates
to 82 days for the year.

[61]        
However, at the same time that Ms. Fell took on less work from features,
she took on more work on television series. Cumulatively, her income from both
types of work resulted in her earning more in 2010 than she had prior to the
accident. Her personal income tax returns show, in fact, that she earned substantially
more in 2010.

[62]        
Ms. Fell has the burden of proving a real and substantial
possibility that, but for her injuries, she would not have missed opportunities
and would have earned more. In my view, Ms. Fell has not met that burden,
and I therefore make no award for past loss of income.

Has the plaintiff’s proved loss of earning capacity?

[63]        
Ms. Fell’s ability to earn income is a capital asset. If that
capacity has been diminished, she is entitled to compensation for that loss. Ms. Fell
submits that because of her soft tissue injuries and migraine headaches, she is
not as competitively employable as she once was. She seeks an award of $100,000
under this head.

[64]        
The defendants argue that the plaintiff should receive nothing under
this head of damages because there is no real and substantial possibility of
income loss due to those injuries.

[65]        
As set out in Perren v. Lalari, 2010 BCCA 140, loss of earning
capacity is a pecuniary head of damages. As such, the plaintiff will be awarded
damages for loss of earning capacity only if she is able to prove, on the
standard of real and substantial possibility, that she is going to be out-of-pocket;
that is, that she will earn less in future with her injuries than she would
have without them.

[66]        
A number of factors must be taken into account in assessing whether the
evidence establishes a real and substantial possibility that Ms. Fell will
earn less in future because of the soft tissue injuries and migraines she has
experienced since the accident:

1.              
There is a potential for some improvement in the longer term in Ms. Fell’s
condition, although Dr. Hershler was of the view that she will not fully
recover.

2.              
The physical limitations and discomfort Ms. Fell experiences doing
the job of a first aid/craft services provider mean that she will not be able
to work in that industry.

3.              
Before the accident, Ms. Fell intended to work as a craft services
provider until age 45, about another 10 years, before returning to work in a
less onerous job such as a lab technician.

4.              
Her soft tissue injuries and migraines make it more difficult for her to
perform any physical work, including being a care aid, which was her employment
before she moved into the film industry.

5.              
Even before the accident, Ms. Fell was experiencing some soreness
in her neck and discomfort in her back when work required physical exertion,
such as carrying water bottles or emptying and filling coffee urns as a craft
services provider.

6.              
Before the accident, Ms. Fell was on her way to becoming a top
craft services provider on features. She was a hardworking, ambitious young
woman who thrived on the challenge of the job. It was a uniquely good fit for
her, combining her interest in healthcare and her love of cooking. Ms. Fell’s
personality, too, was well-suited to dealing with film crews and the demands
the work placed on her. Ms. Kress described Ms. Fell as a capable,
reliable worker she could trust with running the food services for the second
unit on a production without having to give her another thought. I find it
likely that Ms. Fell’s success would have continued, her reputation would
have grown, and but for her injuries, she would likely have worked primarily in
features over the next 10 years.

7.              
As a result of her injuries, Ms. Fell will be retraining and moving
into a position such as a lab technician about 10 years earlier than planned,
or she will continue to take day work in the industry and do some first aid
attendant work, which will not be as lucrative as working full‑time on a
project. Although there is no evidence before the Court of the earnings of a
lab technician, the gross revenues earned by Ms. Fell and her pre-incorporation
personal income, along with the evidence of Ms. Kress that as a first unit
services provider she can pay for a new car by working for a few months on a
single project, suggest that the work of a first aid and craft services
provider is one with potentially higher income than a nine-to-five lab
technician position.

[67]        
Considering all of these factors, I find that Ms. Fell has
established a real and substantial possibility of future income loss due to her
physical limitations. That loss is not a certainty, but she is not required to
meet that standard of proof. Assessing the future loss of earning capacity in
this case does not lend itself to a precise mathematical calculation of lost
earnings. Using the capital asset approach, I award the plaintiff $50,000 under
this head of damages.

[68]        
In summary, damages are awarded as follows:

[69]        
In the ordinary
course, the plaintiff would be entitled to costs under Rule 15‑1(15).
Is there any need to speak to costs?

[DISCUSSION WITH COUNSEL]

[70]        
The parties have leave to appear before me to speak to the issue of
costs, but must set the matter down by March 16, 2012.

The
Honourable Madam Justice L.A. Fenlon