IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120416

Docket: M130518

Registry:
New Westminster

Between:

Kelsey Lee Olson

Plaintiff

And

Eric James
Ironside

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Josephson

Reasons for Judgment

[1]            
Then 19 years old, Ms. Olson was injured on October 24, 2008 when the
vehicle in which she was a passenger was rear ended by another vehicle in a
significant collision that pushed her stopped vehicle into the vehicle ahead.
Liability is admitted. With the exception of special damages, all heads of
damages are in issue. While the evidence of the plaintiff and her lay witnesses
was not significantly challenged, experts for the plaintiff and the defendant
have markedly different opinions regarding the cause, nature, severity and
duration of her symptoms.

[2]            
Prior to the accident, all the evidence reveals the plaintiff was happy,
active, energetic, outgoing, athletic and highly socially active – to the point
that her grades suffered. She was a highly valued full time employee at Red
Robin, a chain restaurant, and readily capable to meet the significant physical
demands associated with her job as a cook. That all changed after the
collision. She suffers ongoing pain in the back and neck, headaches, migraine
headaches, anxiety, depression and became socially isolated and inactive. She
has been terminated from two different restaurants since the accident because
of her inability to perform the physical tasks associated with her employment
and her frequent absences due to her symptoms. She now works part time with
accommodation for her symptoms.

[3]            
The following is a list of injuries that the plaintiff claims were
caused by the collision:

1.       Chronic
soft tissue injuries with daily myofascial pain in her neck and upper back.

2.       Chronic
soft tissue injuries with intermittent myofascial pain in her lower back.

3.       Chronic
daily cervicogenic headaches.

4.       Significant
and debilitating exacerbation of pre-existing migraine headaches, occurring 2
or 3 times a week.

5.       Post-traumatic
thoracic outlet syndrome, bilaterally.

6.       Chronic
sleep disruption.

7.       Major
depression, presently in partial remission.

8.       Post-traumatic
stress disorder with nightmares, in partial remission.

9.       Permanent
right temporomandibular joint (“TMJ”) dysfunction.

[4]            
Prior the collision, she rarely suffered from headaches and would have
migraines only one or two times per year. She suffered from bruxism or teeth
grinding, for which she wore a mouth guard until 2007, but had no history of
pain or TMJ dysfunction. She had full attendance at her work and her
competitive soft ball games and practises.

[5]            
The plaintiff found the collision a most frightening experience, one in
which she feared she would die. She was left distraught and in tears. This
experience was exacerbated by the death of a friend in a motor vehicle accident
not long before the collision. Ambulance attendants advised her to attend a
medical clinic as there were four to five hour waits at the emergency
department of the nearest hospital.

[6]            
She was diagnosed with a grade two whiplash injury and prescribed
medications. She then briefly attended a pre-planned birthday party for her
close friend, but her condition gradually deteriorated. The next day, she
testified that she could hardly move and suffered pain in the front and back of
her neck and her back. She has suffered from headaches daily since the
collision. She developed sleep problems with associated nightmares, sometimes awakening
in tears. She suffered migraines once or twice weekly, sometimes accompanied by
nausea and vomiting. Prescribed physiotherapy worsened her headaches to the
point she could not continue. Light, smell and sound could trigger the onset of
a migraine.

Employment

[7]            
The plaintiff had been a model employee in various positions at Red
Robin and was likely to move up to positions of increasing responsibility and
income. Her manager, Mr. Ishkanian, whose evidence was unchallenged, described
her as a “fantastic” employee, hardworking, reliable, always on time and one
who performed her duties at a high level. She enjoyed her work. He would have
encouraged her to move up in the management ladder as she had the demeanour and
work ethic for success at that level. He testified however that, at present, he
likely would not even hire her now because of her inability to perform her
duties to a satisfactory level.

[8]            
The plaintiff was off work for about three months after the collision.
When she returned to work at the restaurant in January of 2009, she was
assigned lighter hostess duties and then returned to the line cook position,
but others had to do the lifting and other more strenuous duties for her. She
often had to miss work or leave work early due to her symptoms. This caused
much conflict with her supervisor, who happened to be her older sister,
Stephanie Olson, to the point that the plaintiff was told to quit or she would
be fired. She left the restaurant in June of 2009.

[9]            
In early 2009 the plaintiff took part-time employment doing inventory
for Sears, where her mother was also employed. There she was accommodated with
frequent breaks, allowed to lie on the floor, and given a push cart as she
couldn’t carry the device used for inventory gathering.

[10]        
In June of 2009, the plaintiff obtained full time employment with
another restaurant where she encountered similar problems, but again was
accommodated by co-workers and worked through the pain. After the arrival of a
less accommodating new manager, she was terminated in June of 2011 for
absenteeism and inability to perform her duties.

[11]        
Her sister Stephanie was transferred to another Red Robin restaurant in
order to close it down. Desperate for assistance in that process, she hired the
plaintiff on a short term basis, although the plaintiff’s performance there was
similar to that witnessed prior to her leaving the other Red Robin restaurant.

[12]        
The plaintiff then secured part-time employment, again with Sears, in
July of 2011. Recently, she transferred to the cosmetics department. As that
position involves much standing, she has been given a special mat to reduce her
symptoms.

[13]        
The plaintiff made enquiries regarding employment as a dental hygienist.
Her education would likely have required much upgrading to gain entry into such
a program. The symptoms she now suffers due to the collision have foreclosed
what remained a somewhat remote career possibility.

Symptoms

[14]        
The plaintiff was an entirely credible witness in describing the impact
of the post-accident symptoms on her life. Her evidence was corroborated by
family, co-workers and a close friend. Her mother describes the plaintiff as “a
completely different person” since the accident, i.e. a socially isolated couch
potato. There was no serious challenge in the cross-examination of these
witnesses. I accept their evidence. She suffers from sleeplessness, constant
headaches, frequent migraine headaches, ongoing back and neck pain, depression
and anxiety.

[15]        
In addition, she developed a painful TMJ disorder in December of 2009
and would awake with a locked jaw, requiring extremely painful treatment. Jaw
locking and clicking could occur throughout the day. The problem continues and
she will require splints to reduce symptoms. She can only eat soft food to this
day.

[16]        
By 2010, the plaintiff was experiencing panic attacks and nightmares.
She had little energy and ruminated on her accident and that of her deceased
friend. She became socially isolated and disconnected from all her friends but
one. Her doctor diagnosed depression in the spring of 2010 and prescribed
anti-depressants.

[17]        
She was referred to a psychiatrist, Dr. Gopinath, who prescribed
medication and counselling. The plaintiff returned to playing soft ball, but only
on a recreational level far below her previous competitive level, on the recommendation
of Dr. Gopinath. She missed nearly half her games, but playing again improved
her mood, though not her physical condition.

[18]        
She also returned to the gym on medical advice and that also improved
her mood intermittently. Fatigue and painful migraines did not permit as much gym
attendance as she would have preferred. Stress related to this upcoming trial
also played a role in that regard.

[19]        
She testified that she awakes with a headache every day that is mild at
first but which gradually worsens as the day progresses. She remains anxious,
sad and worries much of the time.

Other Alleged Intervening Causes

[20]        
Shortly before the collision, a close friend of the plaintiff died in a
motor vehicle accident. After the collision, the boyfriend of the plaintiff
left her after he became intimate with another woman. Also after the collision,
the plaintiff became ensnared in a close internet friendship with a person she
believed was a young man. In fact, as she eventually discovered, it was a
woman. This caused the plaintiff much upset, to the point that she complained
to police.

[21]        
The defendant asserts that these events were, to some degree, causative
of her symptoms after the collision. I reject that submission. The evidence is
that the plaintiff and her friends went through a normal grieving process after
the fatal motor vehicle accident by supporting each other and visiting the
scene of the accident. With respect to the boyfriend, the evidence is that they
quarreled as the plaintiff no longer wanted to go out or socialize due to her
symptoms. Their breakup may have worsened her emotional condition, but it did
so only for a brief period of time.

[22]        
The internet incident was a betrayal and most upsetting, but its impact
on the plaintiff, again, was only temporary. I accept the evidence that she
then moved on and I find the incident played no role in her emotional condition
or any other symptoms thereafter.

Expert Evidence

[23]        
There is a conflict in the expert opinion evidence of physiatrist Dr.
Koo, called by the plaintiff, and that of neurologist Dr. Eisen, who conducted
an independent medical examination for the third party. While both have
outstanding credentials and experience, Dr. Eisen’s experience and credentials
are particularly noteworthy and that is the primary basis on which the third
party asks me to prefer his opinion evidence. The plaintiff asks me to prefer
that of Dr. Koo, primarily on the basis that Dr. Eisen’s opinion was based on
incorrect facts and assumptions.

Dr. Koo

[24]        
Physiatrist Dr. Koo was an impressive witness, one who was confident in
his opinion and had a good ability to explain his conclusions. After a very
thorough and lengthy interview and examination on September 25, 2010, he
concluded at p. 6-7 in his report of September 25, 2010 that the following
conditions resulted from the injuries the plaintiff suffered in the collision:

1.         Chronic
soft tissue injuries with myofascial pain arising from the cervical paraspinal
muscles, trapezius, periscapular muscles (rhomboids, infra and supraspinatus)
and lumbar paraspinal muscles;

2.         Chronic cervicogenic headaches;

3.         Exacerbation of migraines (pre-morbid condition);

4.         Chronic sleep disruption; and

5.         Post-traumatic
thoracic outlet syndrome bilaterally.

He adds the following:

In addition, the aforementioned primary and secondary
diagnoses that have led to the recurrence of daily pain, disruption of sleep,
and interference with her work and daily activities, have likely contributed to
the subsequent development of:

1.         Major depression, multifactorial; and possibly

2.         Right TMJ dysfunction in the
context of a pre-injury history of bruxism (grinding teeth), and wisdom teeth
extraction.

[25]        
He is of the opinion that her condition has reached a plateau and states
at p. 10 of his report that “she remains at a significantly increased risk for
future pain exacerbation and may require periods of activity limitation in the
future in the event of re-injury or overuse.”

Dr. Eisen

[26]        
The well qualified neurologist Dr. Eisen stated: “The natural history of
a soft-tissue injury is to heal in about two to three months.” He added that,
especially in young people, soft-tissues have an excellent potential for
healing.

[27]        
Finding no neurological deficits in the plaintiff, he states at p. 6 of
his December 2, 2011 report:

However, Ms. Olson continues to
complain of neck and shoulder pain, lower back pain and headache, now almost 3
years since the MVA. Chronic whiplash, continuing for 2 or more years is
unusual (<10% of whiplash).

[28]        
Dr. Eisen is of the opinion that the ongoing back pain suffered by the
plaintiff is largely related to her scoliosis and not the collision. At p. 9 of
his report, he expresses his opinion that her headaches are likely to respond
to Botox injections, hypnosis, biofeedback, or similar treatments and that
“stopping the contraceptive pill is an important issue”.

[29]        
Dr. Eisen stated that that plaintiff “went on to a good recovery and
back to work. Things got worse, so something new had to happen.” I pause to
note that this is simply incorrect as the evidence is clear she did not go on
to a good recovery at all and was fired from two jobs due to her inability to
cope with the physical demands of a job she previously handled with ease.

[30]        
With respect to depression, Dr. Eisen states his belief at p. 10 that
“the depressive symptoms started sometime after the MVA of October 24, 2008”
and that they “are not related to the accident.” This is contrary to the
evidence of psychiatrist Dr. Gopinath, to whom he defers, and the evidence of
Dr. Koo.

[31]        
He disagrees with Dr. Koo’s diagnosis of thoracic outlet syndrome
(“TOS”), stating at p. 8 that “[t]he Pathological data explaining “neurogenic
TOS” is very limited and there is none to confirm the idea of whiplash-induced
TOS, in the absence of severe injury to the thoracic outlet area.”

[32]        
While deferring to psychiatrist Dr. Gopinath, Dr. Eisen nonetheless
disagreed with the finding of post traumatic stress disorder, believing that
only a severe head injury can result in that diagnosis.

[33]        
At p. 9 of his report, Dr. Eisen concludes that the plaintiff suffered a
whiplash injury in the accident, which resulted in “a syndrome complex typical
of this type of injury with significant improvement after about four months.
The improvement was sufficient to enable her to start working, at first part time
and within a few weeks full time.” It is clear that Dr. Eisen was unaware of
the evidence that the plaintiff continued with significant symptoms that
altered all aspects of her life and prevented her from carrying out former
employment duties in a satisfactory manner.

[34]        
After agreeing in cross-examination that the accuracy of his facts and
assumptions is important to his opinion, Dr. Eisen acknowledged that he didn’t
know the frequency of the plaintiff’s pre-collision headaches nor that they
were not accompanied by seeing purple dots and nausea to the point of vomiting as
was the case post-accident. He wrongly believed that, prior to the accident,
the plaintiff had attended the emergency ward with migraines. He did not note
that pre-accident headaches did not interfere with the activities of the
plaintiff, nor that the plaintiff had been an outgoing, happy and well-adjusted
young person before the accident.

[35]        
Dr. Eisen agreed he was unaware of the frequency or time frame of
pre-accident back strains, nor that there had been no back problems for two
years prior to the accident.

[36]        
Regarding TMJ symptoms, while outside his area of expertise, he agreed
he was wrong regarding pre-accident jaw clicking.

[37]        
Saying that he was “totally muddled about time sequences”, he was
mistaken about the time of the death of the friend of the plaintiff when
stating that he believed the death was shortly before 2010 rather than a month
before the accident.

Reply of Dr. Koo to the Report of Dr. Eisen

[38]        
Regarding the plaintiff’s TMJ symptoms, Dr. Koo responded that, in his
experience, this is a common phenomenon for persons with pre-existing
vulnerabilities to the disorder, such as the plaintiff, as the symptoms can be
exacerbated by the pain and muscular tension in the neck and shoulders, with associated
stress and anxiety, flowing from a whiplash injury.

[39]        
Dr. Koo disagreed with Dr. Eisen’s opinion that Botox injections,
hypnosis, and biofeedback would be viable treatment modes for the plaintiff’s
headaches, stating the following at p. 3 of his January 5, 2012 report:

Moreover, given the chronicity
of her underlying myofascial pain and the cervicogenic nature of her chronic
daily headaches, the treatments he has outlined are worth trying, as they may
produce some degree of symptomatic temporary benefit, but are unlikely to be
curative, given the chronicity and severity of her headache symptoms to date.

[40]        
Dr. Koo also disagreed with Dr. Eisen’s opinion that the low back pain
was likely the result of pre-existing scoliosis, stating that the majority of
cases of mild scoliosis are completely asymptomatic. If the cause was
scoliosis, Dr. Koo would expect “more indolent, chronically recurring back
pain” rather than the sporadic and isolated episodes related to sporting activities
(see p. 4-5 of his report).

[41]        
In disagreeing with Dr. Eisen’s opinion that whiplash injuries cannot
give rise to the plaintiff’s disputed TOS, Dr. Koo produced three articles that
demonstrate the opposite.

[42]        
Regarding depression, Dr. Koo offers this strong opinion at p. 7:

It is my
experience, having worked extensively with patients recovering from
life-changing injury or illness, that reactive depression following a
significant traumatic event is a common psychological reaction that often begins
in a delayed fashion, as the chronicity of pain, impairment and disability
start to take their toll, and hope for normalcy fades, requiring emotional
adjustment and bereavement of loss. The secondary losses attributed to such
traumatic events, including financial strain, loss of employment opportunities,
reduced socialization, inactivity, limited leisure pursuits, and disrupted
sleep arising from pain, can all contribute to the development of a delayed,
reactive depression.

Dr. Koo
concludes at p. 8 that:

In my opinion,
Ms. Olson’s recovery has been slow, protracted and incomplete, with persisting
symptomatic and functional impairment.

Dr. Grypma

[43]        
Orthopaedic surgeon Dr. Grypma states in his
January 25, 2012 report that “I found Ms. Olson’s current subjective complaints
indicate non-specific neck pain.”

[44]        
He concluded that the plaintiff’s lower back
symptoms had recovered. This conclusion was based in part on his observation
that the last notation of lower back pain was on the date of the accident and
there was no further note of such pain in the medical legal report of her
family doctor, Dr. Dugdale.

[45]        
He adds the following at p. 10-11:

Ms. Olson complains of enduring symptoms of
burning, aching, dull aching symptoms although on physical examination her
symptoms were described as pulling and stretching. I found her symptoms today
more compatible with deconditioning rather than enduring injury from the
subject motor vehicle accident.

No objective findings were noted on physical
examination related to the motor vehicle accident and I could not find any
signs suggesting any injury or pathology related to the subject motor vehicle
accident. The natural history of a soft-tissue injury is to heal in about two
to three months.

As far as
disability is concerned, Ms. Olson likely had total disability for
approximately two to three months. She likely had partial disability for two to
four weeks. On examination today, I could not find any objective findings to
support ongoing disability. In the absence of structural damage, disability is
highly unlikely. Ms. Olson states today that she is able to do everything but
has some limitations with lifting.  Residual disability after two to three
months is highly unlikely. There may be some discomfort which is unlikely to
cause any limitations.

Reply of Dr. Koo to the Report of Dr. Grypma

[46]        
After reviewing updated medical information and
re-examining the plaintiff, Dr. Koo states in his report of February 10, 2012
that:

…[S]he continues to have ongoing
nociceptive pain of myofascial origin of the neck and periscapular muscles, TMJ
dysfunction and that of the mastication muscles of the right side. This does
not conform to my understanding of “nonspecific” pain, in that underlying pain
identifiers are easily identified.

In my opinion, she has ongoing partial
disability related to her present and previous vocation and that her enjoyment
in working is likely diminished on the basis of her activity-related pain.

She also reports activity restrictions at
the gym with relative intolerance of heavier weight lifting as it relates to
back strengthening exercises or those that involve shoulder muscles.

In my opinion, she continues to have partial
disability as it relates to her work and recreational pursuits, and this
disability is likely to be permanent on the basis of the duration and severity
of her symptoms to date.

Overall, I agree with the work-related
estimations which were evidenced in Ms. Olson’s inability to continue working
as a line cook, as predicted. I also anticipate that her pre-injury goal of a
dental hygienist is precluded on the basis of her post-accident pain and
activity restrictions.

In my opinion,
she continues to have permanent partial disability on the basis of her motor
vehicle accident conditions, as evidenced by her personal history of work
intolerance, interference with gym and daily activity, and functional capacity
limitations as reported by Ms. Hunt.

Dr. Gopinath

[47]        
The treating psychiatrist of the plaintiff
provided a report dated December 13, 2010. After observing that the plaintiff
had functioned well despite a family history of mood disorder and anxiety
disorder, he concluded that the plaintiff had coped well with the death of her
friend shortly before the accident.

[48]        
He adds at p. 5-6 of his report:

The impact of the accident has been many:

1)         Whiplash
injury causing soft tissue damage, chronic dull aching pain of the neck, upper
back, shoulders, lower back which is continuing even now requiring some analgesics
and muscle relaxants.  This has considerably limited her level of activity and
sleep.

2)         Psychological
problems. The accident has caused some Post Traumatic Stress Disorder with
increasing anxiety, hypervigilance, poor attention and concentration,
nightmares with re-experiencing of the trauma in her dreams as well as nightmares
of seeing her deceased friend.  It is known that current traumatic events can
trigger memories and flashbacks of previous traumatic experiences.  However her
Post Trayumatic Stress Disorder is in partial remission.

3)         Major
depression. Her Post Traumatic Stress Disorder as well as chronic pain with some
limitation of movements, disruption of sleep and also loss of relationship has
triggered an episode of major depression in the last 8 months which is typical
of a mood disorder.  Though she is at risk of developing a mood disorder due to
the genetic risk unfortunately the accident has brought forward and precipitated
the onset of mood disorder.  Though she is likely to fully remit from the
current episode unfortunately she is vulnerable to future relapses and
remissions despite successful resolution of her chronic pain and Post Traumatic
Stress Disorder.

4)         Social
disruption. In terms of loss of finances from inability to function due to the
pain and loss of relationship with her boyfriend due to inability to be engaged
in quality time on account of persistent pain, preoccupation of the accident
and depression.

Ms. Olson in my
opinion is suffering from Post Traumatic Stress Disorder, Generalized Anxiety
Disorder, panic attacks as a consequence with a mild degree of agoraphobia. Though
she had some chronic low-grade depression since the time of the accident on account
of the pain and post traumatic symptoms as reminders this has culminated in a
major episode of depression making her biological vulnerability for depression
to manifest ahead of time. Unfortunately this is likely to recur in the future
regardless of any stresses. The Post Traumatic Stress Disorder itself, though
likely to improve, unfortunately is going to leave her with some degree of
vulnerability to have further anxiety and also Post Traumatic Stress Disorder
features with even unrelated stressors.

[49]        
Dr. Gopinath revisited the issues in his report
of November 25, 2011. He concluded that her depression was in remission and that
she still suffered from symptoms of mild post traumatic stress disorder. The
plaintiff, he concluded, is now vulnerable and fragile and at a much greater
risk of suffering another major depressive disorder.

Conclusion Regarding Conflicting Expert Opinion Evidence

[50]        
I accept the opinion evidence of Dr. Koo where
it differs from that of Dr. Eisen and Dr. Grypma. Firstly, Dr. Koo proceeded
only after a very thorough review of the information and after a thorough
interview and examination of the plaintiff. His opinion was based on an
accurate version of the facts and assumptions. His evidence was convincing and
best explains why the plaintiff clearly continues to suffer from symptoms, even
though she only sustained a soft tissue injury in the motor vehicle accident.

[51]        
Dr. Eisen, though a highly qualified
neurologist, proceeded on the basis of some inaccurate facts and assumptions,
which significantly weakens his opinion. In any event, his evidence is that
over 90% of persons who suffer soft tissue injuries recover. If so, I would
conclude that the plaintiff is in that 10% minority.

[52]        
I accept the plaintiff’s submission that the
opinions of Dr. Grypma are weakened by the lack of a thorough and complete
examination, his failure to acknowledge her headaches and TMJ dysfunction, and
his failure to consider significant material facts.

[53]        
I found the replies of Dr. Koo to the evidence
of both Dr. Eisen and Dr. Grypma to be convincing and reliable.

Ms. Janet Hunt

[54]        
Ms. Hunt did a work capacity evaluation of the
plaintiff and estimated the cost of future care. Ms. Hunt found limitations to
the plaintiff negatively affecting almost all but sedentary types of
employment, including reaching, handling, fingering or feeling. The plaintiff
is limited to sedentary and light strength demands with occasional medium
strength work up to waist height and light-medium strength carrying over short
distances. Even with sedentary types of employment, the plaintiff has sitting,
standing and walking limitations.

[55]        
She recommends care in the nature of physiotherapy,
psychological counseling, vocational assessment and counseling, occupational
therapy consultation and TMJ treatment.

TMJ Dysfunction

[56]        
The plaintiff’s longtime treating dentist, Dr.
Pirani, is of the opinion that the accident is the cause of the TMJ
dysfunction. The dentist retained by the third party, Dr. Mehta, expressed some
difficulty linking this dysfunction “directly” to the accident, but he
basically agrees with Dr. Pirani’s assessment.

[57]        
Dr. Pirani states the following in his March 15,
2011 report:

The most likely question that will be raised
is to why she developed symptoms of the TM Joints almost fifteen months after
the MVA.

The etiology of Temporomandibular Joint
Disorder (TMD) is multi-factorial, with predisposing, initiating and perpetuating
factors.  When a patient can no longer compensate or adapt for these factors,
the patient becomes symptomatic.

In Ms. Olson’s case, she always had
increased occlusal forces on the right, but she had been asymptomatic.  The
macrotrauma was the initiating factor and the perpetuating factors are increase
in personal stress, antidepressants, chronic pain and increased parafunctional
habit of clenching and grinding her teeth.  This microtrauma is defined as
prolonged, repeated adverse loading of the masticatory system, through postural
imbalance and/or from oral parafunctional habit.

There is a direct relationship between
forward head posture, loss of normal cervical curve and the Mandibular
position.  As the neck loses its normal cervical curve, it brings the Mandible
further up and back, resulting in the condyle to posture further back in the
fossa, and invading posterior joint space.  This results in discal ligaments to
elongate and cause disc displacement.

During the hyperflexion episode, teeth can
come together with tremendous force, resulting in enamel and cervical fractures
and hyperemic pulps.  These symptoms may not become apparent for months or
years later and therefore the dentition has to be monitored for a very long
time.

Ms. Olson
sustained a permanent injury to the right TM Joint when she was involved in a
double impact MVA (rear and frontal end collision) on October 24, 2008.

[58]        
Dr. Mehta puts it this way in his February 14,
2012 report:

The significant
history of pre-motor vehicle collision bruxing history combined with the
patient’s and family history of depression, anxiety and panic attacks, post traumatic
stress disorder coupled with chronic neck and shoulder pains as well as
headaches is most likely related to the onset of jaw problems fourteen months
following trauma history.

[59]        
Thus, I have no difficulty in concluding that,
but for the motor vehicle accident in issue, the plaintiff would not have
developed this TMJ dysfunction.

Summary of Injuries Caused by the Accident

[60]        
The plaintiff has proved that, but for the accident, she would have
continued her healthy, active and outgoing life style. I accept the plaintiff’s
submission that the following injuries were caused by the accident:

1.       chronic soft tissue injuries with myofascial pain in her
neck and upper back present on a daily basis;

2.       chronic soft tissue injuries with myofascial pain in her
lower back present on an intermittent basis;

3.       chronic cervicogenic headaches present on a daily basis;

4.       exacerbation of her pre-existing migraines;

5.       post-traumatic thoracic outlet syndrome bilaterally;

6.       chronic sleep disruption;

7.       major depressive disorder, presently in remission;

8        post-traumatic stress disorder, presently in partial remission;
and

9.       permanent right temporomandibular joint dysfunction.

Non-Pecuniary Damages

[61]        
The accident had a dramatic effect on all aspects of this young
plaintiff’s life because of the symptoms listed in the previous paragraph. She has
learned to cope as best she can with those symptoms, but is unlikely to fully recover.

[62]        
Of the several case authorities cited by the plaintiff to assist the
Court in determining non-pecuniary damages in the case at bar, the most helpful
are Parfitt v. Mayes et al, 2006 BCSC 125; Houston v. Kine, 2010
BCSC 1289; Murphy v. Jagerhofer, 2009 BCSC 335; Prince-Wright v.
Copeman, 2005 BCSC 1306; and Ashmore v. Banicevic, 2009 BCSC 211. 
The non-pecuniary damages awards in these cases range from $80,000 to $120,000.

[63]        
After reviewing the authorities cited to me and considering the impact
of the proven injuries on the plaintiff’s daily life, I award the plaintiff
$100,000 for non-pecuniary damages, which I consider to be a mid-range award
for the circumstances of this case.

Past Wage Loss

[64]        
The plaintiff was earning $10 per hour plus tips as a restaurant
employee at the time of the accident, earning about $1,300 per month. She
missed three months, returning in late January or early February of 2009, which
approximates a loss of $4,000. From then to the end of May of 2009, she lost
approximately $2,600. The plaintiff asks me to assume her income for 2009, but
for the accident, would have increased by some $4,000 to $20,000 in seeking an
additional $3,375 from June to the end of 2009. A more reasonable assumption
would be an increase of $2,000 to $18,000 and I award a total of $13,000 from
the time of the accident to the end of 2009.

[65]        
It is reasonable to conclude that the plaintiff would have continued to
earn modest increases in her salary over the years. In fact, she earned a
taxable income of $10,371 in 2010 and $10,974 in 2011.

[66]        
Assuming that her income would have increased to $20,000 and $25,000,
the plaintiff seeks an award for total past loss of income of $38,655. I find
it more reasonable to assume increases to $18,000 and $20,000.

[67]        
From the time of the accident to the time of trial, the plaintiff has
proven a total past wage loss of $32,000.

Loss of Earning Capacity

[68]        
Given her ongoing symptoms, there is a real and substantial possibility
to the point of it being a certainty that the plaintiff will continue to suffer
income loss. Because of her limitations, many possible career avenues have been
foreclosed. The career she enjoyed and excelled at was in the restaurant
business. There is evidence that if she eventually worked her way up to the
position of manager, her income could approach $40,000 to $55,000. This is a
significant contingency.

[69]        
There is also the contingency that, if the avenues are explored as
recommended by Ms. Hunt, there will be some improvement in her condition or an
increased ability to cope with her symptoms while employed.

[70]        
I am to be guided by the principles set out in Athey v. Leonati,
[1996] 3 S.C.R. 458.

[71]        
The greatest likelihood, as earlier stated, is that the plaintiff would
have continued in the restaurant business and achieved promotions over time.
Less likely is that she would have become a dental assistant earning a similar
income. An even more remote possibility is that she would have qualified as a
dental hygienist.

[72]        
There is in evidence the report of Mr. Carson providing the present day
value of future loss.

[73]        
After applying contingencies, the plaintiff submits that an award in the
range of $500,000 to $800,000 is appropriate.

[74]        
I award the plaintiff $450,000 for loss of earning capacity.

Cost of Future Care

[75]        
The present day value of following the recommendations of the experts
and Ms. Hunt was not challenged. The present day value of those recommendations
is $67,625. It is reasonable to assume that there will be additional costs
associated with matters such as housekeeping and yard work. I will award a
total of $75,000 under this heading.

Special Costs

[76]        
These have been proven at $397.55.

Summary

1.       Non-Pecuniary Damages                             $100,000.00

2.       Past Wage Loss                                            $32,000.00

3.       Loss of Earning Capacity                             $450,000.00

4.       Cost of Future Care                                       $75,000.00

5.       Special Costs                                                     $397.55

TOTAL                                                                  $657,397.55

[77]        
The plaintiff will have her costs, with leave to apply in that regard.

“Josephson J.”