IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120424

Docket: M112197

Registry:
New Westminster

Between:

Paula
Elizabeth Carter

Plaintiff

And

Qi
Zhan and Jordan Kyle Daniels, also known as Jordan K. Daniels

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

Introduction

[1]            
The plaintiff, Ms. Paula Carter, makes claims for damages arising
out of a motor vehicle accident that occurred November 29, 2006.  The
defendants admit liability.

[2]            
The plaintiff contends that she suffered soft tissue injuries in the
accident which resulted in pain and stiffness, mostly on the left side of her
body, in her neck, jaw, shoulders, back and hips.  She contends that at the
time of trial, five years after the accident, she continues to endure almost
constant pain, and she suffers from an ongoing disability which is permanent in
nature.

[3]            
She also contends that her injuries forced her to end her fulfilling
career as a Shiatsu therapist, and to take other less strenuous work as a
customer service representative at a call centre for Telus Mobility.

[4]            
The plaintiff claims damages for both past and future loss of earning
capacity.  She also claims damages for non-pecuniary losses, loss of
housekeeping capacity, and future cost of care.  She claims special damages and
costs.

[5]            
The amounts the plaintiff seeks for each of these claims are as follows:

[6]            
The defendants acknowledge that Ms. Carter suffered some minor soft
tissue injury as a result of the motor vehicle accident; however, the
defendants argue that the plaintiff’s ongoing complaints are not credible, or are
unrelated to the motor vehicle accident, which was a very minor collision.  In
the alternative, the defendants say that any ongoing injuries are the result of
the plaintiff’s failure to mitigate.

[7]            
The defendants deny that the plaintiff is entitled to any damages other
than non-pecuniary damages. The defendants say that reasonable compensation for
the plaintiff’s non-pecuniary losses is in the range of $10,000 to $18,000.

Factual Overview

The Accident

[8]            
When the accident occurred, Ms. Carter was a front seat passenger
in a car being driven by her then common law spouse, the defendant Mr. Jordan
Daniels.  They were stopped at a light at the intersection of Kingsway and
Willingdon Avenue in Burnaby, B.C.  As Ms. Carter was reaching into the
back of the car behind the driver’s seat for a newspaper, the vehicle was
struck from the rear by the vehicle being driven by the defendant Mr. Qi
Zhan.  Ms. Carter believes that the snowy conditions caused or contributed to
the accident.

[9]            
There was very little damage to either vehicle.  The 1994 Pontiac
Sunbird being driven by Mr. Daniels sustained a cracked bumper cover.  The
bumper and cover were replaced at a cost of $628.  Mr. Zhan’s 2001 BMW
320i sustained cosmetic damage to its front end, which was repaired at a cost
of $183.

[10]        
The plaintiff argues that there is no principle of law that there can be
no injury where there is minimal or no vehicle damage, or that a low impact
collision can be directly correlated with a lack of compensable injury: Gordon
v. Palmer, 78 B.C.L.R. (2d) 236 at 237, [1993] B.C.J. No. 474 (S.C.);
and Lubick v. Mei and another, 2008 BCSC 555, [2008] B.C.J. No. 777,
at paras. 5 and 6.

[11]        
The defendants do not disagree with these principles. The defendants
accept that Ms. Carter suffered some injury in the accident.  But the defendants
argue that the minor nature of the collision is a relevant consideration that
should be taken into account in assessing the claims of the plaintiff.

The Plaintiff

[12]        
At the time of the accident Ms. Carter was 32 years old. She is now
37.  She is single and has no children.  Her common law relationship with Mr. Daniels
ended in 2009.

[13]        
Following high school graduation, she worked in various jobs, including
waitressing.  In 1999, when she was 25 years of age, she obtained her certification
as a Registered Shiatsu Therapist, on completion of an eight month training
program.

[14]        
Ms. Carter testified that Shiatsu therapists often work in health
spas. Shiatsu therapy is a form of acupressure massage whereby the therapist
uses her fingers, thumbs, hands, or elbows to apply pressure to the human body
for relief of pain or stress or for other therapeutic purposes.  Ms. Carter
described it as being a “holistic” form of therapy.  She described the work of
a Shiatsu therapist as being quite physical in nature.

[15]        
A Registered Shiatsu Therapist is not the same as a Registered Massage
Therapist, which requires three years of training.

[16]        
No detailed work history was provided.  Until late 2005, about a year before
the accident, Ms. Carter had never worked year-round.  She described
her work as “seasonal”, meaning that she worked during the winter and summer
seasons in resorts or resort communities such as Tofino and Whistler.  She also
mentioned working at a fishing lodge.

[17]        
 The plaintiff started her first year-round non-seasonal job in approximately
October or November 2005, when she began working as a Shiatsu therapist
at Spa Ethos, a health spa in Kitsilano, Vancouver (the “Spa”).  However, she
was forced to take a medical leave of absence from that work in September 2006,
about two or three months before the accident, due to severe pelvic problems.

[18]        
Ms. Carter has suffered from chronic pelvic pain for many years.
The problems started when she was 13 years of age.  She also suffers from severe
menstrual cramps, with pain radiating from the pelvis into her legs.  Although no
details were provided, Ms. Carter had undergone at least one laparoscopic
surgical operation for her pelvic condition prior to the accident.

[19]        
When the accident occurred on November 29, 2006, Ms. Carter was on
medical leave due to her pelvic condition, and was awaiting a second
laparoscopic surgery scheduled for February 2, 2007.  While off work, she
received Employment Insurance medical benefits.  She testified that she expected
to return to work about two weeks after the surgery.

[20]        
The plaintiff underwent the surgery on February 2, 2007, as scheduled. 
She returned to work at the Spa as planned, about two weeks after the surgery. 
However, within a couple of days of returning to work, she concluded that she
would not physically be able to continue working as a Shiatsu therapist. 
Nevertheless, she continued to work at the Spa. She worked at the Spa for a
total of two weeks after returning from surgery.

[21]        
The plaintiff’s brother, Ryan, had very recently begun working for Telus
Mobility as a customer service representative.  He suggested that she apply to
Telus Mobility to also work as a customer service representative.  The plaintiff
attended an interview with Telus Mobility and got the job.  She started working
at Telus Mobility on March 7, 2007 and she continues to work there presently.

Medical Treatment for Accident Injuries

[22]        
The plaintiff testified that the impact of the collision “felt pretty
hard to me”.  She testified that she immediately felt pain in her neck, jaw,
and in other areas of her body.  After the accident, she and Mr. Daniels drove
home, only a few blocks away.

[23]        
Ms. Carter testified that she slept poorly that evening, and that
she suffered from tightness in her jaw, stiffness and pain in her neck,
shoulders, and chest, and pain extending down to her hip and buttocks.  She
testified that by the next day she could not move her head to the left due to
neck stiffness and she was in a great deal of pain.  She attended at a walk-in medical
clinic.  The doctor there recommended Tylenol 3, massage therapy and
physiotherapy.

[24]        
On December 12, 2006, about two weeks post-accident, she saw her family
practitioner, Dr. David Richardson.  Dr. Richardson has been her
doctor since 2004. He noted neck, back and hip discomfort, with tenderness,
stiffness and reduced range of motion.  He diagnosed soft tissue injuries.  He advised
the plaintiff to undergo “symptomatic” treatment; that is, treatment of her symptoms
with over-the-counter pain relievers or ice packs, and to continue with massage
therapy, which she had started.

[25]        
Dr. Richardson saw the plaintiff again on January 22, 2007.  He
noted that she continued to have neck, back and hip pain.  She also complained
of soreness in her jaw since the accident.

[26]        
When the plaintiff saw Dr. Richardson again on February 28, 2007, approximately
four weeks had passed since her laparoscopic surgery, and approximately two
weeks has passed since her return to work at the Spa.  Dr. Richardson’s
report states that her injuries were “essentially unchanged” on that occasion, as
compared to her prior visit on January 22, 2007.  He noted that she had started
physiotherapy in addition to massage therapy.

[27]        
Although Ms. Carter’s evidence was that she had already concluded
that she could not continue to work as a Shiatsu therapist prior to her
February 28, 2007 appointment with Dr. Richardson, there is no indication
in Dr. Richardson’s report or in his clinical notes that the plaintiff
discussed any difficulties with her work due to her injuries, or that she
sought his professional opinion about changing her career.

[28]        
Ms. Carter saw Dr. Richardson again on May 4 and August 17,
2007.  By August 17, Dr. Richardson noted slow improvement in her
injuries, but that she continued to have jaw, neck, hip and back discomfort,
particularly on turning to the left.  On examination he noted continued
tenderness.

[29]        
Ms. Carter continued with the physiotherapy and massage therapy for
several months.  No records of these therapies were produced at the trial; however,
Dr. Richardson’s clinical notes on October 16, 2007 indicate that the plaintiff
had stopped physiotherapy by that time.  It appears that the plaintiff also
discontinued the massage therapy sometime before October 16, 2007.  Dr. Richardson’s
notes of October 16, 2007 indicate that the plaintiff’s condition was much the
same.  She began using a night guard for her jaw problems.

[30]        
She saw Dr. Richardson again on December 3, 2007. Following that
visit she did not see him again in relation to the accident injuries for about
10 months, until September 12, 2008.

[31]        
Three days later, on September 15, 2008, Dr. Richardson prepared
his first of two medical-legal reports (the “September 2008 Report”).  In his September
2008 Report, Dr. Richardson opined that the plaintiff’s soft tissue pain
was gradually lessening, and he expected that gradual improvement would
continue over the next one to two years.

[32]        
Ms. Carter continued to see Dr. Richardson from time to time
thereafter, often for other unrelated health concerns.  Dr. Richardson’s
final physical examination of her in relation to her accident injuries was on
April 9, 2009, nearly three years prior to this trial.

[33]        
Dr. Richardson provided a second medical-legal report dated July
18, 2011 (the “July 2011 Report”).  In the July 2011 Report, Dr. Richardson’s
prognosis was much more guarded than the generally optimistic prognosis set out
in his September 2008 Report.  Dr. Richardson stated that Ms. Carter’s
clinical status remained unchanged from the September 2008 Report.  He noted
that she continued to have neck, back and pelvic girdle discomfort on the left
side more than the right.  He also noted that she continued to have limitations
of function and some temporomandibular joint (jaw) dysfunction.  He concluded his
July 2011 Report as follows:

As it has now been 4 ½ years
since the date of her accident, I believe that her clinical improvement has
plateaued and that she is left with a partial disability due to her soft tissue
injuries.

[34]        
Dr. Richardson never referred the plaintiff to any other physician
or specialist for any treatment for her accident injuries. In fact, since her
cessation of massage and physiotherapy treatments in 2007, Ms. Carter has
had no formal medical treatment or therapy for her accident injuries, other
than continuing to see Dr. Richardson from time to time.  She continues to
use over-the-counter pain medication as necessary; she uses a night guard for
her jaw; and she uses a “magic bag” (heating bag) for her neck pain.

[35]        
In April 2010, her lawyer referred her to an occupational therapist, Mr. Dominic
Shew, for an assessment of her functional and work capacity.  Mr. Shew
noted some restrictions and limitations in her physical capabilities.

Other Medical Conditions

[36]        
As noted, Ms. Carter suffered from pelvic problems for many years prior
to the accident and she continues to suffer from these problems and other
significant health problems post-accident.  She contends that these other
medical problems are unrelated to the accident injuries.

[37]        
Although she testified that the laparoscopic surgery conducted on February
2, 2007 provided relief for her pelvic condition, the evidence is that she continues
to suffer from significant chronic pelvic pain and distress.

[38]        
The plaintiff saw Dr. Christina Williams, a specialist in
reproductive medicine, in early February 2010.  She advised Dr. Williams
that she experienced a great deal of stress around the time that her common law
relationship ended.  She advised Dr. Williams that her diet was not good
and she experienced a lot of moodiness, bloating and diffuse abdominal pain. 
She also told Dr. Williams that she suffered from depression in 2005 when
her step-father died.

[39]        
In 2010, the plaintiff developed severe laryngitis.  A benign nodule on
her thyroid was diagnosed.  As a result, she took a medical leave of absence from
Telus from July to November 2010.  She returned on a graduated return to work
program and was able to resume full time duties in February 2011.

[40]        
The plaintiff also saw Dr. Chandler, a specialist in internal
medicine, in 2011, with complaints of chronic fatigue, and stated that she was
functioning at about 50% of her normal capacity.

[41]        
In April 2011, she saw a specialist in endocrinology, Dr. Kreisman,
for an assessment of her thyroid condition.  She reported debilitating fatigue
and general malaise starting in July 2010 to Dr. Kreisman.

Injuries as Described

[42]        
Ms. Carter testified that she felt that her condition “plateaued”
within a year to a year and a half following the accident.  She says there has
been no improvement in her condition since that time and she continues to experience
pain and stiffness primarily on the left side of her body in her neck, jaw,
shoulders, back, and extending down into her hips.

[43]        
While the plaintiff testified that she had chest pain for a few months
after the accident, Dr. Richardson’s September 2008 and July 2011 Reports
mention a complaint of chest pain only on the day after the accident.

[44]        
Similarly, while the plaintiff testified that she had occasional headaches
for about two years, she apparently never advised Dr. Richardson of these
headaches.

[45]        
She testified that she was in pain while testifying at trial.  She
testified that she tries to avoid turning left as much as possible.  For this
reason she is reluctant to drive a car, as she is unsure of her ability to do shoulder
checks for other traffic.  She testified that prior to the accident there were
no restrictions on her ability to move.

[46]        
The plaintiff further testified that she is now constantly aware of her pain. 
She cannot move fluidly at any time and she feels that she moves
“robotically”.  She said that prior to the accident she could move freely and
without pain.

[47]        
Ms. Carter testified that she used to be more positive before the
accident.  Now she is more irritable and less patient.  She feels grumpy and
depressed.

[48]        
The plaintiff was not very active prior to the motor vehicle accident
due to her pelvic condition.  She walked, did some hiking, and occasionally
participated in yoga.  When she was working in Tofino, she tried surfing.  When
she was working in Whistler, she tried snowboarding a few times.

[49]        
Although Dr. Richardson encourages her to do as much as possible
and to stay physically active and positive, her physical activities post-accident
have been limited to walking.  She has discontinued yoga. She restricts herself
to light housekeeping.

[50]        
She does not attribute the end of her common law relationship with Mr. Daniels
to her accident injuries.

[51]        
She did not lose any time from work as a result of the accident because,
as noted, at that time she was already off work awaiting pelvic surgery.

[52]        
The plaintiff testified that she loved her former work as a Shiatsu therapist. 
She found it rewarding and fulfilling and she liked the fact that the work was
portable and flexible.

[53]        
She hoped to have her own spa someday.  In 2003 or 2004, while unemployed,
the plaintiff took an Employment Insurance sponsored course in small business
management.  However, she has never operated a business.

[54]        
At Telus Mobility, the plaintiff works at a telephone call centre,
dealing with customer service requests, problems and complaints.  Originally
she dealt with billing issues; now she deals with telephone service issues.   She
works at a computer at a desk that is height adjustable and which enables her
to stand or sit.  For the first four and one-half years at Telus, she was
classified as a part-time employee. Since 2011, she has been classified as a
full-time, regular employee.  She works 7.5 hours per day, 5 days per week. 
She is a member of a union.  She earns $24.53 per hour, plus benefits, and a
pension.  She is grateful for the work, but does not find it fulfilling.  Customers
are sometimes abusive.

[55]        
The plaintiff says that but for the accident, she would not have
considered a call centre job.  If she were to leave her job at Telus, she has
thought about becoming a nursing unit clerk in a hospital.

[56]        
The plaintiff’s brother and a friend testified that Ms. Carter is
less active than she used to be, and appears to be much less happy.  Her friend
testified that she has lost her former joie de vivre.

Assessment

Legal Principles

[57]        
The plaintiff has the burden of establishing that she was injured in the
accident, and the extent of her injuries, on a balance of probabilities: F.H.
v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 [McDougall], at para. 44;
and Cahoon v. Brideaux, 2010 BCCA 228, [Cahoon] at para. 82.

[58]        
At trial, more than five years after the accident, Ms. Carter
continues to complain of nearly constant pain, and she contends that she has a
permanent partial disability.  She also contends that the accident injuries
forced her to change careers.

[59]        
The accident was a very minor one, which would have involved very
minimal physical force.  It is the type of accident that might ordinarily be
expected to result in little or no injury.  At most, one might expect a minor
whiplash soft tissue type of injury that would resolve in a few days, weeks, or
months, at the outside.

[60]        
As noted, there is no direct correlation between the severity of a motor
vehicle accident and the resulting injury; even a minor collision can result in
significant injury.  However, on a common sense basis, evidence of minimal
damage to the vehicles involved in the collision suggests that the force of the
impact and the forces applied to the human body were also minimal, and that the
resulting injury would be less serious: Cahoon, at paragraph 85.

[61]        
As Dr. Richardson acknowledged in his evidence, his diagnosis of
the plaintiff’s injuries depends entirely upon her own subjective reports of
pain.  There are no objective signs of injury.

[62]        
In such circumstances, I must be mindful of the words of caution
expressed by McEachern C.J.S.C., as he then was, in Price v. Kostryba,
70 B.C.L.R. 397 at 399, [1982] B.C.J. No. 1518 (S.C.) [Price],
which have been applied many times since (for example, see Edmondson v.
Payer, 2012 BCCA 114, [2012] B.C.J. No. 462, at para. 2):

 I am not stating any new principle when I say
that the court should be exceedingly careful when there is little or no
objective evidence of continuing injury and when complaints of pain persist for
long periods extending beyond the normal or usual recovery.

 An injured person is
entitled to be fully and properly compensated for any injury or disability
caused by a wrongdoer. But no one can expect his fellow citizen or citizens to
compensate him in the absence of convincing evidence — which could be just his
own evidence if the surrounding circumstances are consistent — that his
complaints of pain are true reflections of a continuing injury.

[63]        
As I read the decision, although McEachern C.J.S.C. uses the phrase
“convincing evidence”, he is not saying anything inconsistent with the decision
in McDougall, which held that there is only one standard of proof in
civil cases, and that is proof on a balance of probabilities (at para. 49). 
This is made clear by the comments in the next paragraph in Price,
wherein McEachern C.J.S.C. states at 399:

 … In short, the
evidence does not satisfy me to the extent required in a civil action that the
defendants should be liable for the plaintiff’s complaints beyond the end of
January 1980.

[64]        
The comments of Rothstein J. at para. 49 of McDougall, are
to similar effect:

[49]      … In all civil cases,
the trial judge must scrutinize the relevant evidence with care to determine
whether it is more likely than not that an alleged event occurred.

[65]        
Accordingly, in this case the credibility of the plaintiff in relation
to her complaints of injury is central to my decision.  Her contentions must be
assessed in light of all of the circumstances of the case, including of course,
the medical evidence: Tai v. De Busscher, 2007 BCCA 371, at para. 41.

Extent of Injury Sustained and Prognosis

Medical Evidence

[66]        
The only medical evidence presented at the trial was that of the
plaintiff’s family doctor, Dr. Richardson, by way of his September 2008
and July 2011 Reports and his testimony.

[67]        
I have difficulty placing much weight on Dr. Richardson’s reports, and
in particular his July 2011 Report, which is very brief, and upon which the
plaintiff relies most heavily.  In general, Dr. Richardson uncritically
accepts Ms. Carter’s statements to him at face value.  My impression is
that Dr. Richardson, as a very busy family doctor, never attempted to
conduct an in-depth assessment of Ms. Carter’s condition for medical-legal
purposes.  In fairness to him, he may not have seen that as his role.  It also
seems to me that his treatment of her accident injuries was understandably
overshadowed by his treatment of her pelvic and throat conditions, as well as
her chronic fatigue and general malaise.

[68]        
Moreover, Dr. Richardson’s reports contain significant omissions
and inaccuracies which make them of doubtful reliability.

[69]        
For example:

1.     Generally
speaking, a medical opinion that the accident injuries caused a plaintiff a substantial
loss of work is very significant. In the summary section of his September 2008
Report, Dr. Richardson states that, “[d]ue to her injuries, [the
plaintiff] was unable to work for a few months.”  Unfortunately, this statement
is in error.  The plaintiff was already off work at the time of the accident
while awaiting surgery for her pre-existing pelvic condition.  In addition, she
returned to work two weeks after the surgery as she had always intended,
despite the motor vehicle accident.  As a result, the plaintiff never missed
any work due to accident injuries.

2.     The
September 2008 Report then states that “[Ms. Carter] previously worked as
a massage therapist but was unable to go back to this occupation due to her
discomfort.”  Again, if true, this would be a highly significant opinion; however,
there is no evidence that Dr. Richardson independently evaluated whether the
career change was in fact necessary.  This comment reflects Dr. Richardson’s
uncritical acceptance of Ms. Carter’s statement to him.  On the evidence,
I find that Ms. Carter did not discuss her alleged inability to return to
work as a Shiatsu therapist with Dr. Richardson when she made the decision
to take the job at Telus.  She merely informed Dr. Richardson of her
decision in that respect when she saw him on May 4, 2007, approximately two
months after she started working at Telus.  There is no evidence that Ms. Carter
ever discussed the possibility of returning to work as a Shiatsu therapist with
Dr. Richardson, or that he was ever asked to consider it.  Dr. Richardson
prescribed no treatment or rehabilitation directed specifically at allowing Ms. Carter
to return to her former occupation.

3.     Later in
the September 2008 Report, Dr. Richardson states, “[the plaintiff] also
wanted to go into Nursing but is hesitant due to the physical demands of the
job.”  I find the idea of becoming a nurse was never more than a passing
thought on the part of the plaintiff.

4.     In his
July 2011 Report, Dr. Richardson states that the plaintiff was reviewed in
the office on July 11, 2011.  He does not mention that he performed no physical
examination on that occasion, and had not physically examined Ms. Carter
with respect to the accident injuries for over two years, since April 7, 2009.

5.     Even
though Dr. Richardson is of the view that the plaintiff’s other conditions
are medically unrelated to her accident injuries, in my view, thorough and
complete medical-legal reports would have at least mentioned them, if for no
other reason than to provide his opinion that they were unrelated. These other conditions
included her chronic pelvic problems, laryngitis and a benign tumour which resulted
in months off of work, as well as possible chronic fatigue syndrome, general
malaise and reduced capacity.  These conditions were at least arguably relevant
to the doctor’s expressed opinions about the plaintiff’s accident injuries.

[70]        
As noted, in Dr. Richardson’s September 2008 Report, he reported
that her soft tissue pain was gradually lessening, and he opined that
improvement would be expected to gradually continue for the next one to two
years; his July 2011 Report is much more negative.

[71]        
The unusual reversal in the course of the plaintiff’s recovery between Dr. Richardson’s
September 2008 Report and his July 2011 Report is unexplained.

[72]        
The plaintiff’s submission that her condition is likely to be permanent
rests upon Dr. Richardson’s comment in the July 2011 Report that he
“believe[s] that [the plaintiff’s] clinical improvement has plateaued and that
she is left with a partial disability due to her soft tissue injuries.” 
However, it is clear to me that this comment is once again substantially a reflection
of the plaintiff’s own reports to Dr. Richardson.

[73]        
In any event, I do not accept the plaintiff’s interpretation of Dr. Richardson’s
report.  Dr. Richardson does not say that her injuries are in any sense
“permanent”.  His comments are quite limited.  He has provided very little by
way of a prognosis, beyond saying that her condition has “plateaued” and that
she is “left with a partial disability”.  I interpret these comments to refer only
to her condition as of July 2011 when the report was written. Had Dr. Richardson
intended to say that her condition was likely permanent, he would have said so.

[74]        
I am troubled by the plaintiff’s lack of effort to obtain treatment for the
alleged accident injuries following the cessation of physiotherapy and massage
therapy in 2007, more than four years prior to the trial.  In my view, Ms. Carter
would have made greater efforts to recover if her injuries were as serious as
she maintains. Also, treatment options would have been considered and
attempted, in consultation with her doctor.  Rather than actively seeking
treatment, Ms. Carter apparently accepted her injuries and adopted a
passive approach to treatment and rehabilitation.

[75]        
While I am unable to accede to the failure to mitigate argument of the
defendants for reasons I will set out below, the plaintiff’s passive acceptance
of her condition remains relevant to my assessment of the credibility of her
complaints.

[76]        
My sense is that Ms. Carter has become very focussed on her pain.  She
is not a stoic.  For example, she testified that she did not do the stretching
recommended by the physiotherapist because it was uncomfortable.  Dr. Richardson
encouraged her to work out more, and walk more, but she said that she was in
too much pain.

[77]        
In his May 2010 report, Mr. Shew recommended an exercise therapy
program; however, the plaintiff did not pursue such therapy.  She maintains
that she cannot afford to pay for treatment. This is unpersuasive.  She has
been making a good income at Telus in recent years.  In my view, if she was genuinely
suffering from serious and debilitating injuries, she would have been motivated
to engage in all reasonable therapies that could potentially assist her
recovery.  She would have found the means, and she would have been prepared to
endure some discomfort in order to achieve recovery.

[78]        
These circumstances cause me to be skeptical about the extent of the
plaintiff’s alleged injuries.

Career Change

[79]        
A central aspect of Ms. Carter’s evidence and of her claim is her
contention that the accident injuries forced her to abandon her former career
as a Shiatsu therapist, and to take on other work as a customer service
representative at Telus.

[80]        
As noted, the plaintiff contends that she decided she could not continue
as a Shiatsu therapist within two days of returning to work at the Spa, which
occurred two weeks after the February 2, 2007 surgery.  She continued to work
at the Spa for two weeks before she started working at Telus in early March. Clearly,
her decision to leave her work as a therapist was made very quickly.

[81]        
The plaintiff did not consult with her doctor before deciding to leave
her work at the Spa.  It is remarkable that she did not mention her difficulty
with her work as a therapist or her decision to leave that work when she saw Dr. Richardson
on February 28, 2007, a few weeks after she says she made the decision.  It is
also remarkable that, although she would have still been working at the Spa on
that date, Dr. Richardson’s first report states that her injuries as
reported to him on that occasion were “essentially unchanged” from the prior
visit on January 22, 2007.  Indeed, in his clinical notes he noted that she was
“overall, doing better.”

[82]        
There is no evidence that the plaintiff sought any accommodation with
respect to the Spa work before leaving that job.  No work records were
produced.  There is no evidence from her former employer or her co-workers at
the Spa.  The plaintiff’s contention that she was unable to do the work rests
almost exclusively on her own assertion.

[83]        
The plaintiff maintained that she only intended to work at Telus
temporarily, until her health recovered; however, she never attempted to go
back to work as a therapist.  There is no evidence whatsoever of any effort on
the part of the plaintiff to return to work as a therapist.

[84]        
Compared to her former work, her job at Telus pays much better, and the pay
is steady and reliable.  She is in a union position with one of the largest
employers in the Province.  She has employment benefits that she did not have
before.

[85]        
She testified that as a therapist, when she was busy, she could do 5 or
6 treatments per day, at $30 to $50 per treatment, plus tips.  However, there
were days that were not busy, including some days when she earned nothing at
all.

[86]        
The plaintiff produced no employment records.

[87]        
Prior to working at the Spa in the fall of 2005, the plaintiff’s work
had always been seasonal and she collected Employment Insurance regularly.  During
2004, she worked as a massage therapist from May to September or October.  During
late 2004 and early 2005, she spent a number of months caring for her
step-father who was gravely ill and passed away in mid-2005.  During the latter
part of 2004 and for much of 2005, the plaintiff received Employment Insurance.

[88]        
On the evidence available, I find that the plaintiff never earned more
than $20,000 per annum as a Shiatsu therapist.  She acknowledged that her
income as a therapist was highly variable.  Working for Telus, she earns double
or more what she formerly earned.  She can expect increases in pay as she gains
seniority.  She believes that in her current position her pay can rise to over $28
per hour.

[89]        
In the circumstances, I cannot accept that the plaintiff decided to give
up her career as a Shiatsu therapist due to her accident injuries.  While I
accept that she is sincere in saying that she enjoyed that work more than her
present work, in my view the more likely reason for her career change was that
the job at Telus offered much higher pay, benefits and other advantages.  That also
accounts for the fact that she has stayed at Telus rather than attempting to
return to Shiatsu therapy.

[90]        
Although it may be that, as she says, the work at Telus is not
fulfilling, I must conclude that it is at least tolerable, as Ms. Carter
has continued to work at Telus for five years.  There was no evidence of any
effort on her part to find other work.

[91]        
In short, I do not accept Ms. Carter’s evidence that she was forced
to give up her career as a Shiatsu therapist due to her accident injuries.  As
this contention is central to her assertions at trial, my rejection of her
evidence in this respect reflects adversely on the credibility of her evidence
generally.

[92]        
In any event, whether Ms. Carter decided to change careers due to
the accident injuries or for some other reason, she has not established that
her accident injuries have in fact prevented her from carrying on in her former
career.

[93]        
As noted, Ms. Carter was assessed by an occupational therapist, Mr. Shew,
on April 30, 2010.  Mr. Shew found that, in general terms, Ms. Carter
had the physical capacity to work as a Shiatsu therapist.  Mr. Shew did observe
a decline in speed and function over the course of the day’s testing, which
suggested to him that the work could aggravate her symptoms; however, there was
no medical opinion to support this suggestion from Mr. Shew.

Conclusions – Extent of Injuries and Prognosis

[94]        
Notwithstanding the minor nature of the collision, I accept that Ms. Carter
suffered mild to moderate soft tissue injuries to her jaw, neck, shoulders, back
and pelvic girdle as a result of the collision.  I accept that the accident
injuries resulted in ongoing pain and discomfort for many months.  I also accept
that her recovery from these injuries was unusually slow and gradual.

[95]        
Ms. Carter testified that she had chest pain for a few months
post-accident, and headaches for a year or two.  Chest stiffness and soreness
is mentioned in Dr. Richardson’s reports only once, in relation to her
condition as reported on the day after the accident.  She never complained of
headaches to Dr. Richardson.  As a result I conclude that these complaints
must have been quite minor in nature.

[96]        
Dr. Richardson’s September 2008 Report is a more reliable indicator
of the progression of recovery and the degree of injury that Ms. Carter
suffered in the accident than his subsequent July 2011 Report, which I do not
consider reliable.  In his first report, Dr. Richardson reported that her
soft tissue pain was gradually lessening.  He opined that gradual improvement
would likely occur over the next one to two years.  That would be a total time
frame of about 34 to 46 months post accident.

[97]        
Ms. Carter’s testimony at trial that her condition has not improved
since about a year to a year and a half post accident is inconsistent with Dr. Richardson’s
September 2008 Report.

[98]        
I do not accept as credible the plaintiff’s contention her condition did
not continue to gradually improve as it had up to September 2008 and as Dr. Richardson
expected it to.

[99]        
On the evidence, I accept that the plaintiff has established to the
requisite standard of proof in a civil case that the accident resulted in soft
tissue injuries which persisted for approximately 36 months after the accident,
gradually lessening over that recovery period.  Thereafter, I conclude that she
suffered from only minor lingering effects.  It follows that I am not satisfied
that the plaintiff has established that her injuries are essentially permanent
as she claims.

[100]     If the
plaintiff continues to suffer from debilitating pain and stiffness as she
maintains, these complaints must originate from some cause unrelated to the
accident.

Duty to Mitigate

[101]     The
defence argues that the plaintiff has failed to mitigate her loss.

[102]     A
plaintiff has an obligation to take all reasonable measures to reduce his or
her loss.  The duty to mitigate includes undergoing treatment to alleviate
or cure injuries.  The defence bears the burden of establishing that the
plaintiff has failed to act reasonably to mitigate her loss.

[103]     In Wahl
v. Sidhu, 2012 BCCA 111, [2012] B.C.J. No. 460, Madam Justice
MacKenzie stated at para. 32:

[32]  The test for failure to mitigate by not pursuing a
recommended course of medical treatment is set out at para. 57 of Chiu
v. Chiu, 2002 BCCA 618, 8 B.C.L.R. (4th) 227:

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.

[104]     I have
found that the plaintiff took a very passive approach to her treatment, and did
not attempt therapies, such as the exercise program that Mr. Shew
recommended, that might have been beneficial to her. However, in order to prove
a failure to mitigate, the defendant must do more than show that the plaintiff
failed to engage in treatment that could or might have been beneficial: Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144, at para. 56.

[105]     The
defence has adduced no medical evidence to support its argument that the
plaintiff failed to mitigate.  The defendants rely on the following facts in
relation to their contention that the plaintiff failed to mitigate her loss:

a)             
Ms. Carter discontinued physiotherapy and massage therapy, though
she testified that she found these therapies beneficial;

b)             
in October 2007, someone at ICBC suggested that she participate in a
conditioning program, which she declined to do;

c)              
when she was discharged from physiotherapy in 2007, the physiotherapist
recommended that she continue with stretching and exercise; however, she did
not do so; and

d)             
in his report of May 31, 2010, the occupational therapist, Mr. Dominic
Shew, recommended an exercise therapy program, which the plaintiff did not participate
in.

[106]     There is
no specific evidence concerning the massage and physiotherapy that the
plaintiff was undertaking, ending sometime in 2007. Dr. Richardson did not
prescribe these therapies.  His report merely notes that she was participating
in them, that she had discontinued these therapies, and that she felt her pain
had increased following their cessation.  However, there is no evidence that
the plaintiff was advised to undergo further massage or physiotherapy, or that
such therapies would have been beneficial.

[107]     No information
is in evidence concerning the conditioning program recommended by ICBC.  There
is no evidence that the recommendation came from a medically trained
individual, or what the conditioning program consisted of.  There is no medical
or other opinion that demonstrates that the program, whatever it was, would
have had some positive effect.

[108]     No details
concerning the physiotherapist’s recommendation for stretching and exercise is
in evidence.  As a result, there is no reliable evidence as to what precisely
was recommended and whether such treatment would have made a difference.

[109]     In his
evidence at trial, Dr. Richardson agreed that it was important for Ms. Carter
to remain active.  From this it might be inferred that he would have agreed
with the occupational therapist’s recommendation for an exercise therapy
program.  However, there is no evidence that Dr. Richardson made any such
recommendation to the plaintiff.

[110]     In
relation to her treatment, the plaintiff has relied almost exclusively upon the
advice of Dr. Richardson as her treating professional.  He testified that Ms. Carter
has complied with his treatment recommendations.  The difficulty for the
defendants in this regard is that he made practically no recommendations for
treatment at all.

[111]     On the
evidence, I am unable to conclude that the defendants have established that the
plaintiff failed to mitigate her losses.

Damages

Non-Pecuniary Damages

Legal Principles:  Non-Pecuniary Damages

[112]    
The general principles relating to assessment of non-pecuniary loss are
set out in the decision of the B.C. Court of Appeal in Stapley v. Hejslet,
2006 BCCA 34, 263 D.L.R. (4th) 19 [Stapley], at paras. 45 and 46:

[45]      Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, supra, at 637 is a helpful
reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is the key and
the "need for solace will not necessarily correlate with the seriousness
of the injury" (Cooper-Stephenson and Saunders, Personal Injury
Damages in Canada (1981), at p. 373). In dealing with an award of this
nature it will be impossible to develop a "tariff". An award will
vary in each case "to meet the specific circumstances of the individual
case" (Thornton at p. 284 of S.C.R.).

[Emphasis added.]

[46]      The inexhaustive list of common factors cited in Boyd
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).

[113]     The list
of factors set out in Stapley is undoubtedly useful in assessing the plaintiff’s
non-pecuniary loss.  Based upon the comments in Lindal v. Lindal,
[1981] 2 S.C.R. 629, the overriding consideration is “[a]n appreciation of the
individual’s loss” (Stapley, at para. 45).  As a result, the
award will vary in each case to “meet the specific circumstances of the
individual case”: Stapley, at para. 45.

Effect of Accident Injuries

[114]     As noted, Ms. Carter
suffered from unrelated medical problems, both before and after the motor
vehicle accident, which to some extent account for her current lack of
enjoyment of life.  Her pelvic condition was so severe that she was off work
from September 2006 to mid-February 2007.  Thereafter that condition continued
to cause her chronic pain, fatigue, and lack of ability to function normally. 
She was off work for several months during 2010 for her laryngitis condition, and
did not return to full time work until February 2011.  She has continued to be
assessed by doctors for chronic pain, general malaise, and debilitating
fatigue.  I find that these conditions are not related to the accident
injuries.

[115]     The
defendants are liable for the injuries they caused, but they should not be
required to compensate the plaintiff for the effects of pre-existing conditions
which the plaintiff would have experienced in any event.  Likewise, if there is
a measureable risk that the pre-existing condition would have detrimentally
affected the plaintiff in the future regardless of the defendants’ negligence,
then this can be taken into account into reducing the overall reward.  This is
consistent with the general rule that the award of damages is intended, insofar
as money can do so, to return the plaintiff to the position he or she would
have been in, but for the accident, with all attendant risks and shortcomings,
and not a better position: Athey v. Leonati, [1996] 3 S.C.R. 458 at
472-474, [1996] S.C.J. No. 102 at paras. 32 and 35.

[116]     I conclude
that the plaintiff’s current lack of energy, reduced physical activity and
socialization, and loss of joie de vivre, is due to other health
conditions that are unrelated to the motor vehicle accident.

[117]     In
summary, Ms. Carter has proven that she suffered soft tissue injuries in
the accident which resulted in pain and stiffness in diffuse areas of her body,
and her jaw, which persisted for approximately three years, with some minor
lingering effects thereafter.  She was not very active before the accident, but
I accept that her injury resulted in some reduction of activity and some loss
of enjoyment of life during that period.

Assessment – Non-Pecuniary Loss

[118]     For
guidance, the plaintiff relies on the following authorities, in which the non-pecuniary
damages awarded ranged from $75,000 to $95,000:

1.     Klein
v. Dowhy, 2007 BCSC 1151, [2007] B.C.J. No. 1741;

2.     Szymanski
v. Morin, 2010 BCSC 1, [2010] B.C.J. No. 5;

3.     Beaudry
v. Kishigweb, 2010 BCSC 915, [2010] B.C.J. No. 1290;

4.     Gosal
v. Singh, 2009 BCSC 1471, [2009] B.C.J. No. 2131; and

5.     Jokhadar
v. Dehkodaei, 2010 BCSC 1643, [2010] B.C.J. No. 2280.

[119]     However,
in each of these cases the Court concluded that the plaintiff suffered from
ongoing chronic injuries due to the accident.  These decisions do not provide
useful guidance given the findings that I have made in this case.

[120]     The
defence submits that Ms. Carter sustained a minor soft tissue injury, for
which a non-pecuniary award in the range of $10,000 to $18,000 would be
reasonable.  The defence referred me to the following authorities:

1.     Mardones
v. Toyota Credit Canada Inc., 2008 BCSC 835, [2008] B.C.J. No. 1217;

2.     Vasilyev
v. Fetigan, 2007 BCSC 1759, [2007] B.C.J. No. 2603;

3.     Mohamadi
v. Tremblay, 2009 BCSC 898, [2009] B.C.J. No. 1302;

4.     Sarowa
v. Gill, 2010 BCSC 873, [2010] B.C.J. No. 1231; and

5.     Lubick
v. Mei and another, 2008 BCSC 555, [2008] B.C.J. No. 777.

[121]     These
cases generally involve minor soft tissue injuries where the plaintiff
substantially recovered within about one year of the accident, perhaps with
some minor residual consequences.  As I have found that the plaintiff’s
non-pecuniary losses lasted three years, with minor lingering effects
thereafter, these cases are not applicable to the case at bar.

[122]     In
determining an appropriate non-pecuniary award to compensate the plaintiff for
her losses, I set out my findings in relation to the relevant Stapley factors:

1.     the
plaintiff was 32 years old at the time of the accident(she is now 37);

2.     she
suffered mild to moderate soft tissue injuries to her neck, jaw, shoulders,
back, and pelvic girdle;

3.     these
injuries caused her mild to moderate pain and discomfort in her neck, jaw,
shoulders, back, and pelvic girdle, primarily on the left side of her body, for
approximately three years and minor lingering effects thereafter, with the pain
lessening gradually over those three years.  She also occasionally suffered
minor chest stiffness and soreness and headaches;

4.     the
plaintiff’s injuries are not permanent and she is not disabled as a result of
the accident;

5.     the
injuries caused the plaintiff some emotional pain and loss of enjoyment of life
over the three-year recovery period;

6.     the
plaintiff was also somewhat restricted in her physical activities over that
time; and

7.     the
plaintiff did not suffer a loss of lifestyle as a result of her injuries.

[123]     Bearing in
mind these factors, I find the following cases provide some assistance in
determining the appropriate range for non-pecuniary damages: Cameron v. Savory,
2008 BCSC 1708, [2008] B.C.J. No. 2429 [Cameron]; Dhanoa
(Litigation guardian of) v. Hui, 2008 BCSC 907, [2008] B.C.J. No. 1307
[Dhanoa]; Mullican v. Steuart, 2003 BCSC 289, [2003] B.C.J. No. 416
[Mullican]; Lane v. Ford Credit Canada Leasing Limited et al.,
2003 BCSC 701, [2003] B.C.J. No. 1042 [Lane]; Gray v. Balsdon,
[1996] B.C.J. No. 667 (S.C.) [Gray]; and Johnston v. Day,
2002 BCSC 480, [2002] B.C.J. No. 920 [Johnston].

[124]     Considering
all the circumstances, and the principles enunciated in Stapley, I
assess Ms. Carter’s non-pecuniary loss at $35,000.

Loss of Housekeeping Capacity

[125]     Ms. Carter
contends that she has suffered a loss of housekeeping capacity, for which
appropriate compensation would be $10,000 to $15,000.

[126]     The
plaintiff testified that on one occasion she hired a cleaning service to do a
“spring cleaning”, for which she paid $150.  No receipt was produced. 
Nevertheless, a proven loss of housekeeping capacity is subject to an award of
damages whether or not housekeeping costs are going to be incurred: O’Connell
v. Yung, 2012 BCCA 57, [2012] B.C.J. No. 214, at para. 67.

[127]     Dr. Richardson’s
July 2011 Report says only that “[the plaintiff] also has to be careful with
heavy housework”.  However, for reasons previously noted I am unable to accept
the reliability of the July 2011 Report.

[128]     The report
of the occupational therapist, Mr. Shew, states that based on test results
of physical and functional capacity, Ms. Carter demonstrated the physical
capacity to be gainfully employed at an occupation of a sedentary or modified
medium activity level.  Her strength and fitness are also satisfactory for work
as a Shiatsu therapist.  She is capable of light homemaking chores.

[129]     Based upon
my conclusion that the plaintiff has established soft tissue injuries extending
about three years post-accident, and the evidence available as to the
plaintiff’s functional capacity, the plaintiff has not established that the
accident caused a loss of housekeeping capacity.

Past Loss of Earning Capacity

[130]     Ms. Carter
contends that as a Shiatsu therapist earning as much as $300 per day, she had
the capacity to earn as much as $73,500 per annum.  She argues that but for the
accident, she would have worked more steadily as a therapist than she had in
the past.  She recognizes that her other health conditions would have
inevitably affected her earnings even without the accident.  She argues that
she has established a past (i.e. pre-trial) loss of earning capacity, and that
a fair assessment of that loss is $10,000 to $15,000.

[131]     I do not
accept that she has earned less after the accident than she would have had she
continued to work as a Shiatsu therapist.  In all likelihood she would have
continued to earn amounts similar to what she had earned in the past given her
pre-existing health conditions and the fact that those pre-existing conditions were
already impacting her earning capacity prior to the accident.  Moreover, as I
have not accepted that the accident injuries caused her to change careers,
there is no basis for an award of damages under this heading.  Finally, as I
have found that the plaintiff has earned more working at Telus than she would
have earned working as a Shiatsu therapist, the plaintiff has failed to prove
that she has suffered a loss.

Loss of Future Earning Capacity

[132]     Ms. Carter
contends that she has suffered a loss of future earning capacity.

[133]     I have
concluded that Ms. Carter has not established that she cannot return to
her former occupation as a result of her accident injuries.  I have also
concluded that the accident injuries did not extend past three years
post-accident.  Therefore, there is no basis for an award of lost future
earning capacity.

Future Cost of Care

[134]     The
plaintiff says she is entitled to an award of future cost of care based on the
costs of: (a) the exercise therapy treatment that Mr. Shew recommended;
(b) the over-the-counter pain medications that she uses on occasion; (c) purchasing
housekeeping services; and (d) a height adjustable desk for work.

[135]     Telus has provided
an adjustable desk to the plaintiff at no cost to her.  With respect to the
other claims, as I have concluded that Ms. Carter’s current complaints of
pain and stiffness are not attributable to the accident injuries, there is no
basis upon which to award costs of future care.

Special Damages

[136]      Ms. Carter
claims for a total of $1,627.10 for out-of-pocket expenses incurred prior to trial
as a result of her accident injuries, as follows:

1.     Moving
expense:                                                          $400.00

2.     House
cleaning expense:                                              $150.00

3.     Tylenol/Advil
[over-the-counter pain medications]         $1052.10

4.     Magic Bag
[heating pad]                                                 $25.00

Total:                                                                         $1627.10

[137]     No
receipts were provided.

[138]     Regarding
the moving expense, few details were provided.  The move in question occurred
very recently, in October 2011, after the end of the plaintiff’s three-year
recovery period.  Some part of the expense was for junk removal.  It is unclear
how this expense was caused by the accident.  The plaintiff has not proven this
claim.

[139]     The house
cleaning expense was a one-time hiring of a maid service several years ago for
a “spring cleaning” while Ms. Carter was still living with Mr. Daniels.
The plaintiff has not proven that this expense arose from the accident
injuries.

[140]     The
plaintiff calculates her pain medication expense at $16.70 per month for 63
months from the date of the accident to the trial.  Therefore the expense for
36 months would be $601.20.  This is a reasonable expense, and the use of pain
relievers for symptomatic treatment of pain is in accordance with Dr. Richardson’s
advice.  Although receipts should have been provided, I am satisfied that the
plaintiff has established this claim.  The magic bag expense of $25 is also
allowed for the same reasons.

[141]     I
therefore award the plaintiff special damages of $626.20.

Summary and Conclusions

[142]      The
plaintiff is awarded non-pecuniary damages in the amount of $35,000 and special
damages in the amount of $626.20.

Costs

[143]    
Ms. Carter is entitled to costs, unless Rule 9-1 of the Supreme
Court Civil Rules, B.C. Reg. 168/2009, is engaged.  If the parties are
unable to agree on costs, they may arrange to make submissions regarding costs.

“Verhoeven J.”