IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120529

Docket: M105578

Registry:
Vancouver

Between:

Jennifer Ward

Plaintiff

And

Zhixiong
Zhu, Scott Williamson, South Coast British Columbia Transportation Authority
and Coast Mountain Bus Company Ltd.

Defendants

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

[1]            
On the evening of November 15, 2008, the plaintiff, Jennifer Ward, was a
standing passenger on a Coast Mountain transit bus. The bus came to a sudden
halt throwing several passengers, including Ms. Ward, to the floor of the
bus. She landed on her back.

[2]            
It was later learned that the bus stopped to avoid hitting a vehicle
driven by the defendant, Zhixiong Zhu. Mr. Zhu has admitted liability for
the accident. The action has been discontinued against the other defendants.
Ms. Ward seeks non-pecuniary and special damages, and awards for loss of
homemaking capacity, loss of earning capacity and cost of future care.

BACKGROUND

A. The
Accident

[3]            
At the time of the accident, Ms. Ward was on the bus heading to a
friend’s birthday party. The bus was crowded so she was forced to stand. She
was facing towards the back of the bus and was wearing a backpack.

[4]            
The bus came to a sudden halt. Ms. Ward fell backwards onto the
backpack. Many people on the bus fell as a result of the bus stopping.

[5]            
Many of the passengers appeared to be injured. Ms. Ward did not
indicate to anyone at that time that she was injured. She proceeded on to the
birthday party.

B.
Medical Treatments

[6]            
The following day Ms. Ward began feeling in pain. Her neck, back,
hips, ankles and wrists were all sore. She had a headache.

[7]            
One or two days after the accident Ms. Ward attended at a walk-in
medical clinic. At that time she was sore all over. Her back, hips and
shoulders were bothering her.

[8]            
Ms. Ward returned to the clinic a week later. The doctor she saw
recommended she attend physiotherapy.

[9]            
On November 28, 2008, Ms. Ward attended a physiotherapy appointment.
The physiotherapist suggested she come back three days a week for treatment.
Ms. Ward did not think the treatment she had received was of assistance. She
thought the recommendation that she have treatment three days a week to be a
money grab. She did not return to physiotherapy. She did not advise the doctors
at the walk-in clinic of that decision.

[10]        
In December 2008, Ms. Ward saw a chiropractor who had been
recommended to her by her father. She had two visits to the chiropractor about
a month after the accident. She did not think those treatments assisted.

[11]        
Between December 23, 2008 and August 27, 2010, she did not seek any
medical advice with regard to injuries she suffered in the accident. Although
she was seeing her on other matters, Ms. Ward did not tell her family
doctor, Lana Dyment, of the accident until January 2011.

[12]        
In November 2010, she went for three chiropractic treatments. She
attended such treatments on the recommendation of her legal counsel who by that
date had commenced this action.

[13]        
Ms. Ward testified that she did not seek treatment or medical
advice because she believed she would get better. In addition, she had other
issues in her life that to her were of greater priority. In that regard, I note
that Ms. Ward has suffered from depression since childhood. In 2009, she
had a miscarriage and sometime later ended her relationship with her boyfriend.

[14]        
When she saw Dr. Dyment in January 2011, Dr. Dyment recommended
massage therapy and chiropractic treatments. Ms. Ward attended such
treatments throughout 2011 and into this year. She testified that those
treatments have provided some relief.

[15]        
In the fall of 2011, she attended Active Rehabilitation for several
sessions. These sessions were funded by ICBC. During these sessions she worked
on stretching. She was given a three-month gym pass.

[16]        
Dr. Dyment prepared a medical/legal report and testified at trial. When
she first saw Ms. Ward in relation to the accident, Ms. Ward
indicated to her that her areas of pain included the entire spinal column as
well as neck and shoulder muscles, the right wrist, the right foot and pain
going down her right leg. She also reported some areas of numbness around her
lumbar spine. Ms. Ward reported that her symptoms were worsened with prolonged
sitting, walking and picking things off the floor. She tried to avoid bending,
twisting and sitting for prolonged periods of time on too hard or extra soft
surfaces.

[17]        
In her medical/legal report dated January 31, 2012, Dr. Dyment
opined that Ms. Ward had suffered a soft tissue strain when she fell to
the floor in the bus accident. She indicated that she seemed to be improving
and slowly resolving her condition until she had recently become ill with a
non-related condition that affected her ability to continue rehabilitation. She
indicated that Ms. Ward may continue to recover and would continue to
require occasional physical or massage therapy to relieve symptoms of her
injuries from the accident.

C. Pre
and Post Accident Activities

[18]        
Ms. Ward is presently 30 years old. She has been employed as a
youth worker at the Aboriginal Safe House on a full-time basis since the fall
of 2007. Her duties are varied. They include keeping inventory of used belongings,
sorting donations, and some housekeeping duties such as vacuuming and cleaning.

[19]        
Ms. Ward has a diploma in child and youth care. In January 2010,
she commenced a course which would lead to her obtaining a real estate license.
She was scheduled to take the examination in April 2011. She says she did not
take the test because of residual difficulties arising from her injuries in the
bus accident. She indicated that if she passes the course she intends to pursue
a career in real estate

[20]        
Ms. Ward testified that prior to the accident her activities
included walking, running and playing soccer. She says as a result of the
injuries suffered in the accident she no longer runs with the same intensity as
before. She says she tried to get back to soccer but that her back hurt too
much. She testified that since the accident she has had trouble with basic
housekeeping tasks such as cleaning, sweeping, vacuuming and dish washing. She
says the repetitive movements and bending cause her problems. She says her
mother has helped her on occasion with housekeeping. Ms. Ward also gave
evidence that when she attend a musical event at the PNE in 2011 she could not
sit through the whole concert because it was too painful to remain in one
position for an extended time.

[21]        
Ms. Ward says that she continues to have neck, shoulder and back
problems. She says her neck is always tense but not always painful. She agrees
that the chiropractic and massage treatments have helped alleviate her
symptoms. She says vacuuming and other repetitive movements still cause her
difficulties.

[22]        
Ms. Ward’s mother testified that she has occasionally assisted her
daughter with household tasks. She indicated that prior to the accident she and
her daughter would get together for runs or walks or to attend concerts. She
testified that when she went with her daughter in 2011 to the PNE, Ms. Ward
had difficulty sitting for an extended time at a musical concert. She says she
has not run with her daughter since the accident, but did not know whether her
daughter has been running with others.

[23]        
Lucas Reidel, who is Ms. Ward’s employment supervisor, also
testified. He says that Ms. Ward told him of the accident soon after it
happened. He says that he modified some of Ms. Ward’s work duties because they
were causing her pain and discomfort.

[24]        
There are some difficulties with Ms. Ward’s evidence. In her direct
examination, she said her mother had assisted her with household chores after the
accident. On her examination for discovery on October 14, 2011, when asked
whether any family members had helped her with housekeeping she said “Not
really”. She says she only remembered her mother’s assistance after the
discovery.

[25]        
At trial, she testified that she gave up soccer because her back pain
prevented her from playing. On her discovery, she said she gave up soccer
because she was out of shape. Her explanation for this inconsistency, that she
considered having back pain being out of shape, is not credible.

DAMAGE ASSESSMENT

A. Non-Pecuniary Damages

[26]        
The principles underlying an award of non-pecuniary damages were
discussed by Madam Justice Gray in Dikey v. Samieian, 2008 BCSC 604 at paras. 139-140:

[139]    Non-pecuniary damages are those that have not and
will not require an actual out-lay of money. The purpose of such an award is to
compensate Mr. Dikey for such things as pain, suffering, disability,
inconvenience, disfigurement, and loss of enjoyment of life. The award is to
compensate him for losses suffered up to the date of trial and that he will
suffer in the future.

[140]    As stated by the Supreme Court of Canada in Lindal
v. Lindal (No. 2), [1981] 2 S.C.R. 629 at 637:

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.).

[27]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

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

[28]        
In this case, Ms. Ward submits that the range of damages is $45,000
to $60,000. She relies on Deiter v. Briggs, 2009 BCSC 914 ($50,000)(“Deiter”)
and Parker v. Lemmon, 2012 BCSC 27 ($45,000) (“Parker”).

[29]        
The defendant submits that Ms. Ward sustained nothing more than a
minor soft tissue injury which resolved or substantially resolved within two
months of the accident. He submits the award should be in the range of $5,000
to $10,000. He relies on the following cases: Al-Mandlawi v. Gara, 2005
BCSC 740 ($7,500); Dolha v. Heft, 2011 BCSC 738 ($10,000); and Saluja
v. Wise, 2007 BCSC 706 ($3,500).

[30]        
In this case, there is limited evidence that supports Ms. Ward’s
claim for loss of enjoyment of life and loss of amenities. Ms. Ward missed
no time from work as a result of her injuries. Within two months of her
injuries, she was trying out for a soccer team. The only amenities referenced
in her evidence concerned reductions in running and walking and difficulty in
2011 sitting through a concert. On the evidence that has been led at this
trial, I cannot find that Ms. Ward’s enjoyment of life has been
significantly compromised by this accident.

[31]        
There is also limited evidence in relation to pain and suffering.
Ms. Ward abandoned physical therapy and chiropractic treatments shortly
after the accident. She went long periods of time without seeking any medical
advice concerning her injuries. She did not say anything to her family doctor
concerning these injuries until January 2011. The defendant submits that the
lack of complaints to medical practitioners supports his submission that Ms. Ward
substantially recovered within weeks of the accident.

[32]        
I do not accept that conclusion. In 2009, Ms. Ward had other
difficulties in her life which explain why she did not actively seek treatment
for these injuries. I accept her evidence that she did not aggressively seek
medical treatment because she mistakenly believed the injuries would resolve without
medical assistance.

[33]        
I find that Ms. Ward did suffer an injury in the fall on the bus. I
accept that those injuries have impacted her for more than three years. Her
decision not to actively treat her injuries immediately following the accident
has undoubtedly prolonged her recovery. When Ms. Ward finally started an active
regime of chiropractic and massage treatments her condition improved. Dr. Dyment
testified that Ms. Ward’s injuries are now slowly resolving. The evidence
does not allow me to conclude that her injuries are permanent.

[34]        
While Ms. Ward’s recovery has been prolonged, the impact on her
life is considerably less than the plaintiffs in Deiter and Parker,
although somewhat greater than the plaintiffs in the cases cited on behalf of
the defendant. While the cases provide a general range of appropriate damages,
all cases ultimately must be decided on their own facts.

[35]        
I award $20,000 in non-pecuniary damages. This award includes an
allowance for the difficulty that Ms. Ward has had or will continue to
have in performing her usual household tasks with less efficiency and comfort
than she did before the accident: Helgason v. Bosa, 2010 BCSC 1756 at para. 160.

B.
Special Damages

[36]        
Ms. Ward seeks special damages of $2,712.51. I find that those
damages were incurred as a result of the accident and I award that sum for special
damages.

C. Loss
of Housekeeping Capacity

[37]        
The onus is on the plaintiff to prove the loss of homemaking capacity on
the balance of probabilities. The evidence in this case does not support a
separate award. I have taken into account her difficulty in performing her
household tasks in the award for non-pecuniary damages.

D. Loss
of Earning Capacity

[38]        
The test for loss of earning capacity was set out in Perren v. Lalari,
2010 BCCA 140 at para. 32:

A plaintiff must always prove, as was noted by Donald
J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A. in Romanchych,
that there is a real and substantial possibility of a future event leading to
an income loss. If the plaintiff discharges that burden of proof, then depending
upon the facts of the case, the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach, as in Steenblok,
or a capital asset approach, as in Brown. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her employment. That was the case in
both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[Emphasis
in original]

[39]        
In this case, the evidence concerning loss of earning capacity is
limited to Ms. Ward’s evidence that she now has difficulty in fulfilling
certain housekeeping duties that she must perform at work. She has lost no time
from work to date because of her injuries. There is no evidence that these
injuries will impact Ms. Ward in other employment or that there are jobs
she can no longer do.

[40]        
Ms. Ward testified that she intends to pursue a career in real
estate. There is no evidence that her injuries will adversely impact her in
that endeavour. Further, as previously indicated, the evidence as a whole
indicates that Ms. Ward should eventually make a full recovery from her
injuries.

[41]        
Based on the evidence at trial, I find that the plaintiff has not proved
that there is a real and substantial possibility that she will suffer a future
income loss as a result of the accident. I would award no damages for loss of
earning capacity.

E. Cost
of Future Care

[42]        
With regard to future care, Ms. Ward seeks the cost of continued
therapy treatments as recommended by Dr. Dyment and the costs of a
personal trainer for one year.

[43]        
Ms. Ward pays $45 for chiropractic treatments and $97 for massage
therapy. There is evidence before me that a personal trainer charges $59 for a
one-hour session. I find that continued chiropractic and massage therapy would
be of assistance in completing Ms. Ward’s recovery. Similarly, a personal
trainer for a limited period of time would undoubtedly be helpful. There is,
however, no basis to suggest that a personal trainer would be needed for an
entire year. Once an exercise program is in place, Ms. Ward should be able
to follow that program without the need of a trainer.

[44]        
While I find that I find that future treatments and an exercise program
will assist Ms. Ward’s recovery, the evidence does not allow me to
determine with precision the exact number of treatments or personal training
sessions that may be required. That number will undoubtedly depend on how Ms. Ward
responds to the treatments. In the circumstances, I award $2,500 for costs of
future care.

SUMMARY

[45]        
In summary therefore I make the following awards:

COSTS

[46]        
Unless there are matters of which I am not aware, Ms. Ward is
entitled to her costs. If either party seeks a different award with regard to
costs, they should file written submissions within 30 days of the date of these
reasons. Any responsive submission should be filed within 14 days thereafter.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice
Richard B.T. Goepel