IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120720

Docket: 47495

Registry:
Vernon

Between:

Mayling Anne
Fennell

Plaintiff

And

William Donald
Hiebert and
Donald Larrie Hiebert

Defendants

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

INTRODUCTION

[1]            
This is a summary trial and all parties agree that the credibility of
the plaintiff is not in issue.

[2]            
This personal injury case arises out of a motor vehicle accident that
occurred near Armstrong, British Columbia, on January 30, 1998, when the
plaintiff was 8 years of age. The plaintiff was in the back seat of the family
van that was rear ended by a truck. The impact was quite violent; the van spun
out, struck a vehicle in front of it and went off the road into a ditch.

[3]            
Liability has been admitted. The issue is the nature and extent of the
damages to which the plaintiff is entitled to.

[4]            
As a result of the motor vehicle accident, the plaintiff suffered soft
tissue injuries to her neck and lower back and headaches started within days of
the collision. The headaches and neck pain have continued ever since and it is
the headaches that are the most debilitating and are now considered chronic.

[5]            
Dr. Robinson, who is a neurologist that specializes in pain
disorders stated in his report that:

In all likelihood she will
continue to have chronic headache and neck pain indefinitely. This will have a
negative impact on her quality of life, as well as occasionally resulting in an
inability to work, attend school, or socialize.

BACKGROUND

[6]            
The plaintiff’s family avoided going to medical doctors because they
believed in a holistic and alternative medical regime. The plaintiff’s
chiropractor, Dr. Ritchley, kept a chart of his involvement with the
plaintiff and that chart discloses that she had headaches from February 6,
1998, the date of her first visit, to January 8, 2010, in a total of 62 entries.
She did not receive any substantial relief from the chiropractic treatments and
discontinued seeing Dr. Ritchley in January 2010. Although she seldom saw
a medical doctor, there is no mention in her physician’s charts about headaches
save and except in the years 2000, 2004, and 2005.

[7]            
Dr. Laidlow, a physical medicine and rehabilitation specialist, in
a report dated April 28, 2010, noted that the plaintiff had neck pain, back
pain, and two types of headaches. His opinion was that her neck and lower back
pain was myofascial pain caused by musculoligamentous strain at the neck and
lower back at the time of the accident. Dr. Laidlow recommended that she
see a neurologist. Dr. Robinson’s report was dated August 9, 2011. He
noted that as a result of the accident she probably sustained soft tissue
injury to her neck and shoulders and developed chronic headaches relating to
the neck injury:

I believe that she probably did develop chronic headaches
relating to neck injury as a result of the January 30, 1998 motor vehicle
accident. As a result of that accident, she has ongoing neck and shoulder
discomfort present constantly. The pain is aggravated by physical activity
whereupon there is an increase in her head pain.

I believe that it is possible that she did develop an
increased predisposition to headache reflecting migraine in her early teenage
years. However, I doubt that she would have developed a constant headache or as
frequent severe episodes had the lingering effects motor vehicle accident not
been present.

In essence, I believe that her current headache difficulties
are primarily related to chronic pain involving her neck secondary to the motor
vehicle accident of January 30, 1998, superimposed upon which is a
predisposition to headaches. Although it is impossible to be definitive I
believe that she probably would not have developed any substantial problems
with headaches if the accident had not occurred.

In all likelihood she will
continue to have chronic headaches and neck pain indefinitely. This will have a
negative impact on her quality of life, as well as occasionally resulting in an
inability to work, attend school, or socialize. I doubt that her headache
disorder will worsen or that it will have a negative impact upon her
post-secondary education or for that matter her career potential.

[8]            
Dr. Laidlow also stated:

I do feel that she should be able
to go to school and do any work activities. I think she will also be able to do
any recreational activities that she chooses.

[9]            
The plaintiff’s evidence was that since the age of 8 she has struggled
with neck pain, back pain and debilitating headaches/migraines. She is,
however, a highly achieving individual with a strong will to succeed. She has
maintained a positive attitude even though she is significantly hampered by her
chronic headaches which at times are completely debilitating. She suffers two
types of headaches, the first being tension type headaches which are
accompanied by light sensitivity, sound sensitivity, insomnia and mild nausea. These
occur 15-20 times every month. She also suffers from migraines which are more
painful and they can be so bad that they are throbbing, causing vertigo,
nausea, and extreme light sensitivity. She describes them as being debilitating
and draining and lasting from hours to days. Strenuous activity aggravates her
neck and sometimes her back and when her neck is sore, it tends to trigger the
headaches. She gives as an example that when she is of helping her dad on the
farm doing heavy work, her neck would hurt so badly that she had to stop doing
heavy work. The headaches have limited her everyday life, be it at work,
school, or social activities. She has missed shifts at work because the
headaches affect her ability to deal with customers; migraines affect her
ability to concentrate while driving; she gets dizzy and nauseated to the point
of vomiting; and on one occasion she had to go to the hospitable for I.V.
treatment. She feels exhausted and depressed.

[10]        
She has three to five chronic migraines a month that completely incapacitate
her, requiring a day off work or school. She tries to avoid athletic activities
that aggravate her neck. She misses two to three classes per month because of
headaches (non-migraines). Sometimes she has to rush to complete assignments;
she needs academic concessions to reschedule tests or deadlines on a regular basis.
She has limited her social activity accordingly. She has had to cancel dinners,
missed out on part of her school graduation activities and spent a good part of
her holiday in Hawaii in bed. She feels she is only “half living” her life and
has feelings of depression, frustration, and anxiety.

GENERAL DAMAGES

[11]        
The plaintiff says that the general damages should be in the range of $50,000
to $80,000 and refers to Ashmore v. Banicevic, 2009 BCSC 211; Bancroft-Wilson
v. Murphy, 2009 BCCA 195; Krznaric v. Harada, 2006 BCSC 1421; Lee
v. Metheral, 2006 BCSC 1841; Tarzwell v. Ewashina, 2011 BCSC 1464; Kuskis
v. Tin, 2008 BCSC 862; Wiebe v. Neal, 2004 BCSC 984, these cases
involve headaches and back and/or neck pain.

[12]        
The defendant says that the range of damages should be between $35,000
and $50,000 and refer to: Salzmann (Litigation guardian of) v. Bohmer,
2009 BCSC 1586 and Hahn v. Barnes, 2012 BCSC 724. Those two cases,
however, do not deal with headache pains and are of very little use save and
except for identifying a range for neck and shoulder and mid-upper back pain
for relatively young individuals. The theory of the defence is that the physical
activity of the plaintiff working often two to three part-time jobs, attending
school on a full-time basis, and achieving a relatively high competitive level
in ballet is inconsistent with the reported severity and duration of her
headaches and neck pain.

[13]        
What the defence says is that in the alternative, it must be that the
plaintiff is extremely stoic and if that is the case then she is not suffering
the degree of pain and discomfort that she says she is.

[14]        
In respect to the latter issue, in Stapley v. Hejslet, 2006 BCCA
34 at para. 46 the Court listed factors that would influence an award for
non-pecuniary damages and specifically referenced stoicism, stating:  “(j) the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff…).”

[15]        
I accept the evidence of the plaintiff. I find that under the heading of
general damages for loss of enjoyment of life, given her young age and the
severity of pain and discomfort she has suffered, she is entitled to general
damages in the amount of $70,000. Also included is a component for loss of
housekeeping capacity.

COST OF FUTURE CARE

[16]        
The plaintiff claims that yoga has helped her relieve her muscle tension
and that she finds relief in some herbal teas, herbs, and vitamins. Dr. Robinson
has placed her on a migraine treatment plan which includes elaviln maxalt
migraine medication. The present value of the continual use of migraine
medication over her life expectancy is approximately $37,034.

[17]        
Dr. Laidlow sees no value in ongoing chiropractic treatment or
other forms of passive treatment such as massage and physical therapy. He
recommends a regular exercise program that can be done in a community-based
environment. Although a trainer is recommended for setting up a program and
monthly review for three months, there is no cost provided. Consequently, I am
of the view that she is entitled to the sum of $37,000 for all medication that
she will require in the future.

[18]        
Special damages have been agreed upon in the amount of $5,000.

FUTURE INCOME LOSS AND LOSS OF EARNING CAPACITY

[19]        
Mr. Carson, the economist who filed a report, was asked to consider
the impact on the plaintiff in respect of her future income if she regularly
missed on average one day of work per month and there was one additional day
per work week where she would not be functional at work. He calculated her loss
to age 65 of approximately $260,000.

[20]        
He considered labour market contingencies, the effect of tradeoffs which
women are likely to make between paid work and time demands of family and
household work, and retirement, as well as risks such as job loss, other labour
market exit, or reduced hours of work arising from sickness or injury.

[21]        
He stated at page 2 of his report:

The day per week of
non-functionality is likely to have indirect effects on earnings. By that I
mean that lower productivity and more unreliable performance, in combination,
are likely to increase the instance of unemployment and to negatively affect
real wage progression. Over a period of work life, university graduate women’s
hourly wage increase, on average, from a starting rate, the range of $17 – $18
per hour to a maximum range of $33 to $34 per hour… there is a strong an
positive relationship between the accumulation of time spent (described as
seniority, and/or experience) in work and the real wage level. A higher
incidence of absenteeism, of employment and of non-participation in productive
activity in paid work are all likely to diminish the prospects of a real wage
and progression over the period of working life.

[22]        
The plaintiff regularly misses on average one day of work per month plus
there is one additional day per working week where she is unable to function at
100% of her capacity.

[23]        
The defence says that she is not entitled to any compensation. The
defendant relies on Dr. Robinson’s comment that “I doubt her headache
disorder will worsen or it will have negative impact on her post-secondary
education or, for that matter, her career potential.”  That statement deals
with her career potential, not with her loss of earning capacity. Furthermore,
the defendant has conceded that the plaintiff has had a past wage loss of
$1,500 and they do not question the credibility of the plaintiff. I accept the
evidence of the plaintiff. I am satisfied that there is a real and substantial
possibility that she will earn less income as a result of her injuries, that
she is less capable overall from earning income from all types of employment,
that she is less marketable or attractive as an employee to a potential
employer, that she has lost the ability to take advantage of all job
opportunities which might otherwise have been open to her, and that she is less
valuable to herself as a person capable of earning income in the competitive
labour market.

[24]        
My function is to assess the damages. This is a very young person who
has not developed a career so that will require more of a “crystal ball”
approach, but considering and weighing all of the evidence and the potential
contingencies, I assess the plaintiff’s claim for loss of earning capacity at
$150,000.

SUMMARY

[25]        
In summary, costs are awarded as follows:

[26]        
Costs follow the event.

The
Honourable Mr. Justice F.W. Cole