IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120727

Docket: M61342

Registry:
Nanaimo

Between:

Catherine
Scoffield

Plaintiff

And

Corbin Jentsch

Defendant

Before:
The Honourable Mr. Justice Halfyard

Reasons for Judgment

The Action

[1]            
In the trial of this action for damages for personal injuries, the
plaintiff alleges that she was injured in a motor vehicle accident which
occurred on April 9, 2009 in Nanaimo and alleges that the accident
was caused solely by the negligent driving of the defendant.

The Accident

[2]            
The plaintiff Catherine Scoffield alleges that she had been travelling
north on the Island Highway 19A, that she stopped for a red traffic light at
the intersection of Turner Road, and that while she was stopped, her vehicle
was rear-ended by a vehicle being driven by the defendant Corbin Jentsch.

[3]            
The defendant admits that the accident occurred as just described, and
admits that his negligence was the sole cause of the collision. It is common
ground that the plaintiff was driving a 2001 Toyota Corolla Sedan and the
defendant was driving a 1992 Oldsmobile Cutlass Supreme two door coupe.

[4]            
There is a serious dispute between the plaintiff and the defendant as to
the severity of the force of impact generated by the collision.

The Claims

[5]            
The plaintiff alleges that she sustained soft tissue injuries to her
neck, upper back and right knee, and minor bruising from seat-belt contact, as
a result of the collision. She claims damages under the categories of
non-pecuniary loss, past loss of earnings, loss of future earning capacity,
loss of housekeeping capacity, special damages and the cost of future care.

The Position of the Defence

[6]            
The defendant accepts that the plaintiff did sustain some soft tissue
injury to her neck and upper back (and minor bruising from her seat belt) as a
result of the collision but denies that she sustained a knee injury. The
defence admits that the plaintiff is entitled to awards for non-pecuniary loss,
past loss of earnings and special damages, but the amounts are in dispute. The
defence denies that the plaintiff is entitled to any damages for loss of future
earning capacity, or for loss of housekeeping capacity or for future care.

The Issues

[7]            
These issues arise as a consequence of the serious dispute between the
parties as to the severity of the injury sustained by the plaintiff as a result
of the collision, and as to the duration and degree of the pain and disability
caused by the injury. The plaintiff alleges that her injury was of moderate
severity and that the injury is still causing her pain and some impairment of
her physical abilities. The defence says that the plaintiff’s injury was mild
in severity and that any pain and disability caused by the injury had ceased by
about the end of 2009.

Overview of the Trial

[8]            
The plaintiff testified herself and called her common-law husband Steven
Blanchette as a second witness. The expert opinion evidence of Dr. William
Craig, physical medicine and rehabilitation specialist, was presented by the
plaintiff by way of his report dated January 31, 2012. The defence
required Dr. Craig to attend for cross-examination, and he was cross-examined
extensively on his report and the basis for his opinions.

[9]            
Numerous documentary exhibits were introduced by the plaintiff in
addition to Dr. Craig’s report. They included records relating to her income
and employment, fitness assessments required by her employment and expenses
claimed as special damages.

[10]        
The defendant called two witnesses. The defendant Corbin Jentsch
testified about events relating to the accident. The ICBC estimator, Brent Reid,
gave evidence about the damage to the two vehicles caused by the collision.

[11]        
The defence introduced documentary evidence consisting of photographs of
the two vehicles, clinical records of the plaintiff’s physician, claim file
reports and reports of the estimator. No medical evidence was called by the
defence. I understood the clinical records to have been admitted as “business
records” pursuant to s. 42 of the Evidence Act.

The Evidence Given by
Witnesses for the Plaintiff

[12]        
Dr. Craig testified as the first witness in the trial, which was likely
related to his availability and convenience. But in logic, the plaintiff’s
evidence should be considered first. My review of the evidence will generally
be in summary form.

The Testimony of the Plaintiff Catherine Scoffield

Direct Examination

[13]        
The plaintiff was born on September 12, 1966 and is now 45 years of age.
She grew up in Port Alberni and graduated from high school there. She took a
number of courses at college and university, but did not establish a career
related to her post secondary education.

[14]        
The plaintiff and her partner Steven Blanchette live in Lantzville just
north of Nanaimo. They have been together for many years.

[15]        
In May 2003, the plaintiff commenced work with B.C. Ferry Services Inc.
(“B.C. Ferries”). She worked as a catering service attendant and was a casual
employee who worked on call as needed by the employer. She worked mainly on the
ferries that travelled the route between Departure Bay (in Nanaimo) to
Horseshoe Bay (in West Vancouver). Her job duties varied from time to time.
They included working in the cafeteria and coffee shop, as a cashier and as a
server; as a cashier in the gift shop; and general cleaning tasks throughout
the ship which included vacuuming and washing the floors on the passenger deck
and cleaning the bathrooms. The cleaning work that she was required to do was
physically demanding. The required training for firefighting and rescuing (which
included regular training “drills”) involved heavy physical activity.

[16]        
The plaintiff took training in occupational first aid and kept taking
courses to increase her first aid qualifications. In January 2009, she took a
two week training course and passed it, which gave her a Level 3 certification.
This first aid course involved heavy lifting and other physically-demanding
activity.

[17]        
When the plaintiff commenced employment with B.C. Ferries in May 2003,
she was an “on call” worker and only worked in the summers and on busy holiday
weekends. In March 2007, by reason of her first aid qualifications, the
employer began calling the plaintiff for work on a more regular basis.

[18]        
The plaintiff stated that she was able to perform all of her job duties
without any restrictions on her abilities to do the work, before the motor
vehicle accident of April 9, 2009.

[19]        
The plaintiff sustained an injury to her right knee which eventually
required arthroscopic surgery. That operation was done on
September 9, 2005. The plaintiff was off work after the surgery,
until January 2, 2006. Other than being off work for those four
months, she missed work only occasionally, due to a cold or flu. She also requested
time off for vacations, with the agreement of her employer.

[20]        
The plaintiff described the condition of her neck and upper back as
being “fairly good” before the accident. She would sometimes get sore from
doing the cleaning work while bent over, or from doing heavy yard work. She was
required to obtain a certificate of fitness from her physician, as a
pre-requisite for taking the first aid course in January 2009. Her regular
physician, Dr. Mark, assessed her and signed the Certificate of Fitness on January
6, 2009, attesting to her physical and psychological fitness (Exhibit 3).

[21]        
The plaintiff testified that she had not experienced any headaches in
the ten years before the accident of April 9, 2009. She said that, when she was
aged 22 she was involved in a motor vehicle accident in which she hit her head
on the side window of the vehicle. She said she had a headache which lasted
three or four days following that collision. Then, two months later, the
plaintiff experienced what she called a “visual episode” which affected her
eyes and caused her headaches for about a week. Medical investigation was done,
but nothing was found. She said that after about two weeks “it was pretty much
gone.” The plaintiff stated that she took physiotherapy and massage therapy as
recommended “for a month or two” by which time the headaches were gone.  She
said that, after that she only got a headache if she stayed up too long
studying.

[22]        
The plaintiff stated that, before the accident, she had no significant
problems with sleeping, except when making short shift changes. She said she
had never had any problems with depression before the accident.

[23]        
The plaintiff stated that she was quite active before the accident,
which activities included gardening, hiking, playing a violin, painting as an
artist and as a house painter, jumping on a trampoline, taking long walks and
going on boating trips. She also engaged in a regular exercise program using
weights and other equipment and practised yoga three to four days per week. She
also went swimming, mainly in the summer time.

[24]        
The plaintiff said that she did most of the housework, almost all of the
cooking and cut the grass in the yard. She also did extensive work during the
renovations on their house.

[25]        
The plaintiff gave the following description of the motor vehicle
accident (my summarizing). At around 9:30 p.m. on the evening of Thursday,
April 9, 2009, the plaintiff was driving home from work in a Toyota Corolla car
owned by Mr. Blanchette. She was driving north on the Island Highway and had
stopped for a red light at the intersection of Turner Road. She was wearing a
lap and shoulder strap seatbelt. She did not see any cars stopped behind her.
The traffic light turned green and she was intending to engage the clutch of
the standard transmission of the car and drive forward, but her right foot was
still on the brake. Suddenly and without warning, she felt an “extremely hard
and violent impact” from the rear and found herself “flying forward” and felt a
sharp pain up into her right knee. Her body hit the seat belt and it “hauled me
back and I went flying forward again.” Her head crashed into the head rest of
the driver’s seat. There were some compact discs and a park pass in an open
storage compartment on the dashboard in front of the gear shift, and these
items “all came spewing out of the compartment, flying through the car” (she
later found some of them on the floor, one being in the backseat and a couple
on the passenger seat).

[26]        
After the collision, she saw a car to her left, in the left hand turn
lane, which was stopped. The driver got out and came over to her car, and she
got out. The man asked her how she was, and also said “I wasn’t moving.” She
was angry, but tried to keep calm. The man asked what they should do and she
said they should exchange information with each other. They did so. When the
plaintiff got out of her car and put weight on her right leg, she felt like her
leg would give way and she had a lot of pain in her right knee cap.

[27]        
The plaintiff looked at the back end of her car, and she saw some pieces
of licence plate holder bracket on the roadway. She believed that some of these
pieces were from her car, and some of them were from the car that had struck
her. She did not look at the front of the other car. These pieces of licence
plate bracket were in an area on the roadway which started from about eight
feet behind her rear bumper, and extended about another four feet further back.
The plaintiff further testified that she believed that her car had got moved
forward by the impact.

[28]        
The plaintiff stated that her head ached, her right knee was sore, she
felt tense and had had a long day at work and really wanted to get home. She
said she was feeling tense in her neck, shoulders and upper back.

[29]        
The plaintiff then drove her car home. Mr. Blanchette was not at home.

[30]        
The plaintiff worked her next four scheduled shifts, on April 10, 12,
13, and 15, 2009. But she was experiencing headaches and pain in her neck and
upper back, beginning on the morning after the accident. She said that she had
“terrible headaches” which felt like someone was pounding on the back of her
head with a hammer. She said she also had pain going into her left jaw which
made her ears ring. She found it very hard to sleep. She noticed “faint
bruising” from the seat belt, from her left shoulder down toward her right hip.
She was having pain and difficulty in breathing. Her neck became very painful
to move and it was hard for her to bend over.

[31]        
By April 16, she felt incapable of doing her job duties, and booked off
work. She saw a doctor for the first time that day (Dr. Jones, because her
regular physician, Dr. Mark, was not available). The doctor examined her,
prescribed Naproxen and recommended physiotherapy and massage therapy. She
started massage therapy on April 21 and physiotherapy on April 22. On April 29,
she started seeing a chiropractor (which had not been prescribed by her
doctor).

[32]        
The plaintiff first saw her own physician, Dr. Patricia Mark, on April
29, 2009. She said she was feeling awful at that time, with her pain still
getting worse. Physiotherapy seemed to aggravate her pain.

[33]        
The plaintiff was unable to do any housework or any of her former
recreational activities, in the month or so after the accident. She was off
work from April 16 to August 9, 2009, at which time she began a gradual return
to work. Her work hours and duties were gradually increased, and she returned
to full-time employment on or about October 10, 2009.

[34]        
B.C. Ferries required the plaintiff to undergo medical assessments on
April 29, May 12, June 29, July 30, August 26, September 14 and October 9,
2009. (These documents are at Tab 1 B of Exhibit 5.)

[35]        
The plaintiff states that she was still experiencing a lot of pain after
returning to full-time work and said that she was “absolutely miserable.” Her
headaches were almost constant, she had pain in her neck and upper back, was
feeling numbness into her arms and hands, her right knee was getting worse and
her left jaw was clicking and popping, making her left ear ring.

[36]        
The plaintiff states that she felt unable to continue working and so she
requested and received time off for a vacation (which extended from November 27
to December 13, 2009). She resumed working full-time after returning from this
vacation.

[37]        
The plaintiff testified that in April 2009, her employer had scheduled
her to work on the “C” watch crew on the Departure Bay-Horseshoe Bay route for
the summer season of 2009. She presented a calculation sheet (Exhibit 4) which
she prepared, setting out her claims for past and future loss of income and
explained the contents in great detail.

[38]        
The plaintiff testified that, in May 2010, she switched her work route
from the Departure Bay-Horseshoe Bay route to the Duke Point-Tsawwassen route.
She said that she made this change, because it was too difficult for her to
work the eight days on and four days off required by the work schedule on the
Departure Bay run, as compared to the five days on and five days off schedule
on the Duke Point run. She also said that she could not schedule physiotherapy
treatments properly, while working on the eight days on four days off schedule.

[39]        
On November 1, 2011, the plaintiff became a regular full-time employee
of B.C. Ferries. She is now paid by salary instead of by hourly rate. She was
required to undergo a probationary period of six months after November 1, 2011,
to show that she could perform her job. She successfully completed that period
of probation. She has continued to work on the Duke Point-Tsawwassen route.

[40]        
The plaintiff testified that she had muscle spasms in 2010 and 2011. She
said that she gets spasms in her neck and upper back if she goes swimming. She
said that she now does some hiking, but less than she did before the accident.
She is no longer able to play the violin, because it is too hard for her to
hold the instrument between her chin and left shoulder. As to gardening, she
now does only minimal yard maintenance, and has to be in a seated position to
do gardening. Her partner now cuts the grass. She can no longer work on
renovations to the house. She tried jumping on the trampoline about a month
before the trial, and ended up with an “excruciating headache” and a sore neck.
She says she has lost considerable upper body strength.

[41]        
As to her current condition, the plaintiff states that she has a
headache all of the time, until she gets to her days off work. She says that
her neck pain is bad, and she gets muscle spasms several times per week. Her
sleeping problems continue.

[42]        
The plaintiff testified that she had been feeling “down” since the motor
vehicle accident. She says she feels frustrated at the continuing pain, and
feels that she cannot accomplish anything.

[43]        
The plaintiff testified to difficulties in her relationship with her
partner due to her irritability, which has affected their intimate relations as
well.

[44]        
The plaintiff says that she has started counselling as recommended by
Dr. Craig (for possible mood issues) and says that she intends to continue with
counselling. The plaintiff says that she has commenced exercising with a
kinesiologist (March 6 to May 29, 2012) in accordance with Dr. Craig’s
recommendation. She says she intends to continue with this exercise program.

[45]        
The plaintiff testified to confirm her claims for special damages (for
physiotherapy, chiropractic treatments, massage therapy, acupuncture and
prescription drugs) which are set out in the documents at Tab 3 of Exhibit 5.
The claim also includes the cost of three recent counselling sessions, as well
as mileage expenses and travel costs, and miscellaneous expenses. The total claim
for special damages is $8,205.43.

Cross-examination

[46]        
The plaintiff was cross-examined extensively on the evidence she gave in
direct examination and related matters.

[47]        
The first subject of inquiry was the accident itself. Counsel for the
defendant elicited the following additional information from the plaintiff:

a)    She was stopped
in the through lane that was closest to the centre line of the highway. There
were two cars stopped in front of her and there were four or five cars stopped
in the outside lane to her right.

b)    She does not
know whether or not the defendant had stopped his car behind her car, before
the collision occurred.

c)     She was
stopped about one-half a car length behind the car ahead of her.

d)    Neither she nor
the car ahead of her had started to move forward before she was rear-ended.

e)    She never took
her foot off the brake or engaged the clutch, and she had her foot on the brake
at the time of the collision.

f)      The
front of her car did not hit the car in front of her.

g)    She does not
know if the defendant backed up his car before he drove along side her to her
left.

h)    When speaking to
the defendant right after the collision, she told him that the damage was minor
and that she was going to report the accident to ICBC because there was some
damage to her vehicle.

i)       She
did not know whether the pieces of licence plate bracket that she found on the
roadway could have fallen off the front of the defendant’s car when he backed
up.

j)      She
made an insurance claim to ICBC that night after she got home by telephone,
seeking to have her car repaired. The agent told her that there could be some
delay in processing her repair claim if the defendant did not make a report of
the accident also.

k)     She
telephoned the defendant that night, after speaking with the ICBC agent, and
told him that he should also make a report of the accident, to avoid any delay
in processing her claim for repairs to her car.

l)       She
did not tell the ICBC agent or the defendant that she was or would be making a
claim for personal injury. The reason why she did not say this was because she
did not think that she had sustained any significant injury and thought that
she would be alright in a few days.

[48]        
The plaintiff was questioned about statements attributed to her by Dr.
Craig in his report about the facts of the accident. Dr. Craig reported that
the plaintiff had told him on January 20, 2012 that her car was pushed forward
approximately 10 to 12 feet by the force of the collision, and that it was
pushed into the vehicle in front of her. The plaintiff admitted that she told
Dr. Craig that her car got pushed forward, but denied that she told him it was
pushed forward 10 to 12 feet. She implied that Dr. Craig may have mistakenly
assumed that her car had moved 10 to 12 feet forward, when she explained to him
where she had seen the debris on the road behind her car. The plaintiff did not
distinctly deny that she had told Dr. Craig that her car had been pushed into the
vehicle in front of her, but I think that such a denial is implicit in her
testimony.

[49]        
The plaintiff was referred to photographs of the damage to the rear of
her car and counsel implied that the damage was minimal and the cost to repair
the damage was small. The plaintiff said that she had seen documents showing
the cost for repairs, but said that she did not know the amount.

[50]        
The plaintiff was questioned about the two week training program in
January 2009 which the plaintiff attended in order to get her level 3 First Aid
Certificate. She was asked whether the program was physically demanding and at
first said that it was not as physically onerous as other aspects of her job
duties (such as rescue drills and fire drills). She eventually said, in effect,
that the first aid training program was physically and mentally challenging.

[51]        
With respect to the Certificate of Fitness for the first aid course
(Exhibit 3) which the plaintiff had signed, the plaintiff confirmed that she
had answered all questions by Dr. Mark honestly and truthfully. The plaintiff
acknowledged that the examination was on January 6, 2009 which was after her
knee surgery, and agreed that her right knee was not listed as a limitation on
her physical fitness.

[52]        
Counsel elicited from the plaintiff that she had to renew her first aid
qualifications by taking another two week course in January and February of
2011. She said that she did not have to obtain another Certificate of Fitness
as a pre-requisite to this course. The plaintiff agreed with counsel’s
suggestion that this course was psychologically difficult and also required her
to perform physically demanding tasks, such as carrying oxygen tanks. She said
that she completed the course successfully and that her certificate was
renewed. But she said that she had told her instructor about her neck problems,
and so the instructor avoided having the plaintiff strapped onto a board during
the training. The plaintiff stated that she could not perform the heavier duties
required of a level 3 First Aid attendant for more than an hour, and claimed
that she had told her employer about this limitation. She explained that the
ship would never be more than an hour from port, in the event of a medical
emergency.

[53]        
The plaintiff testified that, as a member of the fire fighting party,
she was required to pull fire hoses during drills and would have to do the same
thing in the event of a fire aboard the ship. The plaintiff stated that she is
able to do this work, but says that “I pay the penalty for it.” The plaintiff asserted
that her employer knows of her limitation in this regard.

[54]        
The plaintiff admitted that she completed her six month probationary
period which started November 1, 2011 (without missing a shift) and has been
accepted as a regular full-time employee. But she claims that she had to have
help from the crew to do the vacuuming of the floors and certain other
repetitive movements required by her job. She said that she only vacuums floors
“on rare occasions”.

[55]        
Defence counsel elicited from the plaintiff that she passed her Seafarer’s
medical examination on July 28, 2011 which is required as a condition of her
employment, and that she was declared to be “unrestricted” in her job duties.
The plaintiff stated that the examination was conducted by a doctor chosen by
her employer. The plaintiff said that she did not tell that doctor that she
could only do first aid work for an hour. She claimed that she did tell the
doctor about her “physical problems”. The plaintiff stated that the doctor
asked her about whether she had any psychological problems. I understood the
plaintiff to say that she did not tell the doctor about any psychological
problem because she was not yet being treated for any such problem (i.e., not
until after she had seen Dr. Craig).

[56]        
The plaintiff was questioned about hand written notes that Dr. Craig had
made about what the plaintiff had told him. Two of these notes stated:

She reported extensive damage to the rear bumper. (Page 4,
Exhibit 2)

“rear bumper destroyed” (page 6)

[57]        
The plaintiff at first denied having told Dr. Craig that the rear bumper
had been “destroyed” and said that she would likely have used the word
“shattered.” She then explained that the inspection of the rear bumper on April
20, 2009 showed that the inside parts of the bumper (a styrofoam layer) was
“shattered”. The plaintiff then embarked upon an explanation in which she
seemed to say that it would not be incorrect to say that parts of the bumper
were destroyed, including the bumper cover, because these parts were replaced.
In the end, the plaintiff seemed to concede that she was unsure whether she had
used the word “destroyed” when talking to Dr. Craig on January 20, 2012.

[58]        
The plaintiff was then referred to Dr. Mark’s clinical note of June 29,
2009 (Exhibit 1, Tab 2, p. 12) which indicated that the plaintiff had told Dr.
Mark that the bumper of her car had been “destroyed”. The plaintiff
acknowledged that she may have said that to Dr. Mark.

[59]        
On being questioned about her symptoms after the accident, the plaintiff
stated in effect that she thought she would get better within a few days, but
that the pain from her injuries kept getting worse and worse every day, until
she had to stop work on April 16, 2009. The plaintiff claimed that her
condition was “shocking to the people I worked with”. She said that her fellow
employees asked about what was wrong with her and she had told them that she
had been rear ended. She stated that during her visit to Dr. Jones on April 16,
2009, the doctor told her that she would be okay in no time.

[60]        
On being questioned about fire drills, the plaintiff said that such
drills could last from 20 to 30 minutes up to 2 ½ hours. She acknowledged that
she can do those drills up to 2 ½ hours, but said that the drills do not
require constant physical exertion. The plaintiff admitted that she had to do
various drills during her six months probation period starting November 1,
2011. She admitted that she did not miss any shifts during her six month
probation period. The plaintiff said, in essence, that she could get by doing
her job, with the five on – five off work schedule.

[61]        
Counsel then elicited that the plaintiff had taken a vacation in late
November to early December 2011 for two to three weeks in Maui, and that she
had done the same thing in late 2010 for two weeks. She said that in late
November and into December 2009, she and her partner went to Mexico for about
two weeks. (Counsel did not explore whether the plaintiff and her partner had
gone on vacations at around the same time of year, in the years before 2009.)

[62]        
The plaintiff was referred to Dr. Mark’s clinical note of April 29,
2009, which stated:

Symptoms overall improving but
still unable to work.

[63]        
The plaintiff denied making any such statement to Dr. Mark. She stated
firmly that her condition was still getting worse, and not improving (even
after she had stopped work on April 16).

[64]        
Counsel questioned the plaintiff about her regular medical assessments
for employment purposes, from April 29, 2009 up to October 9, 2009. Counsel
asked the plaintiff why she had not mentioned her right knee problem to Dr.
Mark in her assessment of April 29, 2009. The plaintiff explained that her knee
pain was insignificant compared to the pain in her neck and upper back. The
plaintiff gave a similar explanation for not mentioning any jaw problem in the
assessments of April 29, 2009 or May 12, 2009. (On her May 26, 2009 assessment
by Dr. K. Torrie, the plaintiff mentioned knee pain but not jaw pain.)

[65]        
The plaintiff was questioned about Dr. Torrie’s note of the plaintiff’s
visit to her on June 10, 2009, which stated “no c/o knee or back pain.” Counsel
suggested that the plaintiff had not made any complaint of knee or back pain
during that visit. The plaintiff seemed to admit that she did not complain
about any pain in her knee or upper back on that date. But she said that was
because her neck and her head were bothering her the most. She said her neck
pain was the worst and her headaches were bad. She described her condition as
being “miserable” and her pain being “awful”.

[66]        
Another note made by Dr. Torrie on June 10, 2009 was: “ROM neck really
very good.” The plaintiff explained that what the doctor meant was that her
neck range of motion was very good, considering her injured condition.

[67]        
Counsel referred the plaintiff to a note made by Dr. Mark during the
plaintiff’s visit of June 29, 2009 (which was the same date as her assessment
for the employer), where Dr. Mark noted that the plaintiff was complaining
about her pain. The plaintiff said that “it [her pain] was unbearably miserable.”

[68]        
During her visit to Dr. Mark on July 20, 2009, the doctor noted: “has
improved considerably” and “pain now 4-5 out of 10.” When asked whether that
was her pain level, the plaintiff answered that she only said the pain was 4
out of 5, because she was sitting still at that moment at the doctor’s office.
It was implicit in her testimony that the pain was much greater when she was
not sitting still. At the same visit, Dr. Mark noted that the plaintiff said
her pain was “now improving.” The plaintiff agreed that she was starting to
improve by that time.

[69]        
The last medical assessment for the employer before the plaintiff
returned to full-time work was on October 9, 2009. The report stated that the
plaintiff was capable of returning to full work hours and full work duties.
When asked about this, the plaintiff testified that this was not really true,
but she wanted to try to return to full work duties. She then repeated that she
asked for time off for a vacation (November 27 to December 13, 2009) because
her work was extremely difficult and was causing her pain. The plaintiff
admitted that her right knee was giving her problems, but denied that she took
the time off because of her knee condition. She then said, in effect, that it
was both her right knee pain and her neck and upper back pain that caused her
to request time off for a vacation in November 2009.

[70]        
Counsel then established that, on her examination for discovery on
November 1, 2011, the plaintiff had testified (at Q. 316) that in
November 2009, on her day off:

. . .  I got out of bed and just
fell down and it was so painful to walk on, I was in tears.

[71]        
The plaintiff conceded that her discovery evidence was true, but she
added that counsel had not asked her on discovery if her neck and upper back
were also causing her pain at the time. Plaintiff’s counsel then objected, and
said that the plaintiff’s answer to question 316 should be read together with
questions 394-399. Defence counsel agreed. In that series of questions and
answers, the plaintiff stated that she had not missed a scheduled day’s work
since returning to work in October 2009 (Q. 396), but that she had booked
time off in November 2009 using her accumulated overtime hours, which was
the only way casual employees could take time off for vacation. The plaintiff
stated (at Q. 399):

I booked it off [late November
and early December 2009] because since I went back to work, I was just in agony
at times and as soon as I could have approved time off, I took it.

[72]        
Later in her cross-examination, the plaintiff stated that when she
returned from her vacation, she did not have enough overtime banked to cover
her vacation time and so the employer made her work almost every day from
December 14, to December 31, 2009 (i.e. December 14 – 20, 22 – 24 and 26 – 31.)

[73]        
The plaintiff was questioned about time gaps between physiotherapy
treatments, chiropractic treatments and filling prescriptions for drugs. The
plaintiff gave explanations for her conduct in this regard, which I thought
were sufficient to neutralize any potential adverse inference.

[74]        
Counsel suggested to the plaintiff that the reason why she had changed
to the Duke Point route was so that she could more easily and regularly get to
physiotherapy treatments with the five on-five off work schedule that started
in May 2010. The plaintiff agreed with this (as being one of her two reasons
for switching routes). Counsel then established that she had only received 16
physiotherapy treatments in 2010. The plaintiff stated that she cut back on attending
for physiotherapy, because it was expensive.

[75]        
The plaintiff was then questioned extensively about her claim for past
wage loss, which was based on the assumption that she would have worked all of
the days scheduled for the “C” watch crew from April 16, 2009 onward. The
plaintiff was challenged on her evidence that, on April 9, 2009, she had been
assigned to work the entire summer season of 2009 with the “C” watch crew.
Under questioning, the plaintiff backtracked somewhat and said that her
assignment was not really confirmed in advance for the whole season. She also
stated that she had not been historically assigned to the “C” watch crew, but
said that this all changed on April 9, 2009. She admitted she had no document
from her employer to confirm what she was saying. She conceded that she might
not have been called for all of the days worked by the “C” watch crew. But she
then asserted that all of the days worked by the “C” watch crew in the summer season
of 2009 would still not be the maximum number of days that she could possibly
have worked. Her position was that she had adopted a fair and reasonable system
in calculating her past wage loss for 2009.

[76]        
Defence counsel next established that 2008 was a good representative
year in the plaintiff’s employment history. Counsel then established that the
plaintiff had worked a considerable number of days on the Duke Point run, in
2008. During this questioning, the plaintiff admitted that she had requested
that she be assigned to the Duke Point run during the months from June to
September of 2008. She said that she did this so that she could get more time
off in the summer of that year. She did not explain why she would want more
time off in the summer of 2008 than in any other year since then. On further
questioning, counsel established that the plaintiff had also worked a
significant number of shifts on the Duke Point run, in 2009, before the
accident occurred on April 9, 2009.

[77]        
The plaintiff testified that her claim for past wage loss was based on
the assumption that she would work 21 days per month. But she said that she
sometimes worked more than 21 days per month. Again, the plaintiff stated that,
when she takes a vacation, she uses her banked overtime hours to “pay” herself
for the two or three weeks vacation so she would not suffer any loss of income
during a vacation period. She said she had used up her banked overtime hours by
the time she went back to work in October 2009, so that when she took a
vacation in late November and up to mid December 2009, she did not receive any
pay while she was off work.

[78]        
On being questioned about the reason for her visit to the chiropractor
on March 24, 2009, the plaintiff stated that the First Aid training course had
made her sore. Counsel then pointed out that the chiropractor’s notes indicated
that he had treated her entire spine, including her neck. The plaintiff did not
dispute this, but said that she was “just a little bit sore.”

[79]        
Counsel then established that the plaintiff had given the following
testimony on her examination for discovery (Q. 287 – 291):

287      Q.        So you saw him two weeks, about two
weeks before the             accident and the note that he made was neck very
stiff, right             upper thoracic something or other. Is that what that
says?

A          This? I can’t even
read that. I do know the reason I went to see him then though. I had just
completed my Level 3 first aid course in February, end of January, beginning of
February – –

288      Q.        So you went and saw him about getting
a job?

A.         – – and I was
working. No. I was working at BC Ferries and I also do little bits of office
work still for people. So I sit at a desk sometimes for long periods, work on a
computer, and by the time I had completed my first aid course and I was back at
work, my job is very physical, I was just extremely sore and felt sort of belt
(sic) and twisted out of shape, probably because I was strapping 200 pound men
into boards and moving them for two weeks.

289      Q.        Okay.

A.         So I just needed
the tension to be released in my back at that time and it worked. My neck was
sore from the — the neck was sore in the first aid course because they put
hard collars around your neck, the other students, and strap you into the
boards.

290      Q.        Okay. It does appear that this was —
you had seen him over             the prior couple of years at least?

A.         Yes, I go every
once in a while when I just feel – –

291      Q.        If I’m not mistaken, it’s mostly
upper back, shoulder, neck             areas for the most part?

A.         Sort of my, yeah, my back in general. I get
tense from working at a desk and then vacuuming for two hours on board the ship
and moving heavy boxes and moving life rafts.

[80]        
The plaintiff acknowledged that she had given that evidence on discovery
(which included the statement “I was just extremely sore . . .” and that she
had been seeing the chiropractor for several years before the accident “for . .
.  my back in general”, i.e. her upper back, shoulder and neck).

[81]        
Counsel then asked the plaintiff whether she had told her massage
therapist in December 2007 that she had been experiencing chronic pain for 15 years.
The plaintiff denied making that statement and asserted that she told the
massage therapist that she had experienced chronic pain, at a point in time 15
years earlier. The plaintiff then explained that, when she was 22 or 23 years
of age, following a motor vehicle accident, she had severe migraine headaches
for a week and that headaches were “an issue” for about two months. She said
the headaches “went away.” The plaintiff testified that this was what she meant
when she told the massage therapist that she had “chronic pain”. She said she
called it “chronic”, because the pain was constant for one week. The plaintiff
continued with her explanation by saying that, in 2007, she did not know what
the definition of “chronic pain” was, and added: “I had no dictionary.” The
plaintiff further stated (referring to the effects of that earlier accident) that
“it was extremely terrifying”, a cat-scan was done, and that she had “life
threatening pain in my head, it was chronic at the time.”

[82]        
The plaintiff also testified that she had told the massage therapist in
2007 that she was getting a sore back from walking, and the massage therapist
thought that this might be due to favouring her right knee (from the surgery in
2005). She said that she also got massage therapy on the muscles of her right
leg.

[83]        
Counsel seemed to suggest that the plaintiff may have switched to the
Duke Point route so that she could ride back and forth to work with her
husband. The plaintiff acknowledged that her husband worked for B.C. Ferries on
the Duke Point route, and that sometimes they both worked on the same ship. But
she said that, although she car pooled with other employees, she did not car
pool with her husband.

Re-examination

[84]        
On re-examination, counsel for the plaintiff elicited the evidence that the
plaintiff’s husband had told her that the Trojan Body Shop estimator had told
him that there was “extensive damage” to the bumper. The plaintiff also stated
that Dr. Mark had been her physician since 1994.

[85]        
The plaintiff stated that when she passed her employment medical
examination in 2011, the doctor “noted two things”, but concluded that those
things did not make her unfit for work. (This evidence was properly objected to
by defence counsel).

[86]        
Finally, it was shown that the plaintiff had made a verbal statement to
the ICBC adjuster on April 20, 2009, that was consistent with her having
sustained at least some injury from contact with the seat belt.

Steven Blanchette

[87]        
Mr. Blanchette is 47 years of age. He has lived with the plaintiff in
Lantzville for 19 years. He works for the BC Ferries as a deck hand and bridge
watchman and had been employed by BC Ferries for several years before the
plaintiff started working there. He works on the Duke Point route on “K” watch,
and is in his third year as a regular full-time employee.

[88]        
Mr. Blanchette was at work aboard ship when the plaintiff called him and
told him about the motor vehicle accident. He got home about 1:20 a.m. on April
10, 2009.

[89]        
Mr. Blanchette described the off-work activities of the plaintiff,
before the accident, which description was consistent with the plaintiff’s
account of her activities. He added some details about the renovation work they
had done together on residences in past years.

[90]        
He said that the plaintiff was not restricted by pain in any of her activities
before the accident. He said she did not take any medications except for
Tylenol or Aspirin, which she might take after a hard day’s work in the back
yard.

[91]        
Mr. Blanchett said that he had often worked on the same shift and the
same ship as the plaintiff, particularly in 2007 and 2008, and described her as
being energetic, efficient and organized as a worker. He described the catering
work that the plaintiff was required to do as being a “tough job.”

[92]        
Mr. Blanchette described the plaintiff as being upset when she
telephoned to tell him about the accident, and again the next morning before
she went to work. He said that he saw “slight bruising” on her body, from the
seat belt.

[93]        
Mr. Blanchette testified that after the accident, the plaintiff became
withdrawn and was not her usual self. She didn’t want to be touched. In the
first days after the accident, he said he tried to get the plaintiff to book
time off work, but said that she didn’t want to.

[94]        
Mr. Blanchette gave an account of the plaintiff’s difficulties in doing
household chores and yard work after the accident, and her stopping or reducing
her recreational activities after the accident, which was generally consistent
with the plaintiff’s own account.

[95]        
He said that, when he and the plaintiff were on vacation in Maui, Hawaii
in December 2011, the plaintiff said she was in pain after doing some swimming,
and he touched her neck and said he felt muscle spasm.

[96]        
Mr. Blanchette described the summer of 2009 as being a “complete
write-off” for the plaintiff. He said that he convinced her to go on a boating
trip with him to Princess Louisa Inlet, but the plaintiff would not get off the
boat to go hiking.

[97]        
Mr. Blanchette said that the plaintiff has improved since the accident,
that she has “good days and bad days” and that after five shifts of work “she
is wiped-out.” He says she still cannot do all of her former activities, and
those that she can do are done with a lesser intensity. He said that she was
unable to do any house painting which required her to reach above her shoulder
and look up.

[98]        
Mr. Blanchette said that his relationship with the plaintiff has changed
since the accident, and has become frustrating for him, due to the plaintiff’s
reduced activity and her somewhat anti-social behaviour.

[99]        
On cross-examination, Mr. Blanchette was questioned about his trip to
the Trojan Auto Body shop to get a repair estimate for the car damage. He was
referred to the photographs in Exhibit 6 at Tab 5 and, when shown photograph
No. 9 he described the foam core under the rear bumper cover as being
“shattered”. He agreed that the styrofoam core was designed to absorb impact
from the rear, which could mean that it would have to be replaced after one
impact.

[100]     Counsel
for the defendant elicited from Mr. Blanchette that he and the plaintiff get
their five days off work together at the present time. He said that was only
because the plaintiff was “filling in” on “J” watch. But he then admitted that
this had been the case for about two years, since the spring of 2010. He
explained that the employer needed a First Aid attendant on “J” watch, so the
plaintiff was put on that watch.

[101]     Mr.
Blanchette agreed that the plaintiff had received chiropractic treatment and
massage therapy, before the motor vehicle accident. He said he knew that the
plaintiff had seen a chiropractor before the accident, after she completed her
First Aid course, which he described as being “tough.” He said that the
plaintiff was sore in her lower back, from the First Aid course activities. He
said that he thought that the plaintiff was okay within a few days after she
completed the course.

[102]     Mr.
Blanchette agreed with counsel’s suggestion that the plaintiff’s catering job
is “very physical.” He said the plaintiff has told him that she has great
difficulty doing five days work, and he repeated that on her days off “she is
absolutely wiped-out,” He said: “she can do her job, but she is in a lot of
pain.”

[103]     Mr.
Blanchette said that he was not present when the plaintiff had a serious
problem with her right knee on getting up in the morning (in November 2009). He
seemed to be unaware that such an incident had occurred. He said that he
believed that the plaintiff had successfully recovered from her knee surgery
within about a year after the operation. But he added that, now, the plaintiff
seems to be having trouble with her knee. He said she sometimes limps, which
she had not done before the accident.

[104]     Mr.
Blanchette thought the cost to repair his car was “around $1,000.00.”

Admissions made
by the Defendant on Examination-for-Discovery

[105]     The
plaintiff read in parts of the evidence given by the defendant on his
examination for discovery on November 1, 2011. The defendant admitted that he
was driving a 1992 Oldsmobile Cutless Supreme when his vehicle rear-ended the
vehicle that was being driving by the plaintiff. He admitted that the
plaintiff’s car was stopped when his car hit it.

[106]     The
defendant testified that he may have asked the plaintiff whether she was hurt,
after the collision and he admitted that “the other driver indicated her knees
when she got out of the car.”

[107]     The
defendant agreed that he was not able to estimate the speed of his vehicle (presumably,
its speed when it struck the plaintiff’s vehicle).

 Dr.
William Craig

[108]     Dr.
William Craig is a physiatrist, i.e. a medical specialist in physical medicine
and rehabilitation. He is qualified to give opinion evidence relating to the
diagnosis, prognosis and treatment of soft tissue injuries similar to those
alleged by the plaintiff. He is also qualified and experienced in
rehabilitating patients who suffer from chronic pain. Dr. Craig examined the
plaintiff on January 20, 2012. His report is dated January 31, 2012 and it is
comprehensive.

[109]     Dr. Craig
elicited a history from the plaintiff which included her description of the
motor vehicle accident, the onset of her pain and disability, an outline of the
treatment she received and her account of the degree of her recovery and
improvement.

[110]     The
plaintiff’s main complaints of ongoing pain and disability were, in summary,
the following:

a)    Constant pain in
the back of her neck, which varies in intensity, and which is aggravated by
flexing forward, using her arms, and lifting, and which causes headaches when
the neck pain increases.

b)    Pain at the
front of her shoulders which extends down her arms (on the right more than on
the left) and pain in her right index finger. The pain goes into her collar
bone area and the front of her neck. The pain is also between her shoulder
blades which is intermittent only, but which “can be incredibly sore.” This
pain between the shoulder blades is aggravated by prolonged sitting and lying
down.

c)     Pain spreading
from her shoulders down the right side to her tail bone area. This pain is
aggravated by prolonged sitting. She sometimes gets pain in her entire back.
Sometimes the pain goes into her groin and her thigh. She gets episodes of
tingling in her right thigh.

d)    Occasional pain
in her right knee around the knee-cap. This pain has mostly resolved, but she
has persisting pain in the big toe of her right foot.

[111]     The
plaintiff described the following effects of her pain to Dr. Craig (my
summarizing):

a)    It interferes
with her sleep.

b)    It occasionally
causes her to have balance problems on the right side.

c)     Her mood
is “down” since the accident.

d)    It often causes
her to feel short-tempered.

[112]     The
findings made by Dr. Craig on his examination of the plaintiff included the
following:

a)    He considered
the plaintiff to be “pain focused” and she spontaneously and frequently described
her symptoms.

b)    The plaintiff
was grimacing as if in pain, when he was manually testing her muscles and range
of motion in her joints.

c)     Head and
neck: The plaintiff had full neck extension but complained of pain. She had 45°
rotation to the right and 40° rotation to the left, and she complained of pain
during these movements. The plaintiff could tilt her head 20° to the right and
15° to the left, but complained of pain during these movements. Dr. Craig found
the plaintiff “tender throughout the neck and shoulder girdle to light
palpation.”

d)    Shoulders: the
range of motion, of the plaintiff’s shoulders was “essentially full.” She had
normal strength in the shoulder muscles.

e)    Arms: no
negative findings. The plaintiff complained of diminished sensation to light
touch on the palm side of her right index finger.

f)      Back:
The plaintiff had good forward flexion but complained of pain between the
shoulder blades and in her neck, on these movements. Extension was only about 5°.
The plaintiff “did not tolerate spinal glide through the lower lumbar levels.”
The plaintiff was tender in her lumbosacral area, in the para spinal muscles.

g)    Right knee:
Tender with palpation in several areas around the knee. The range of motion was
full and there was no swelling.

h)    Hips: The
plaintiff was tender to palpation of the gluteus muscles. She was tender on
palpation of both thighs. The range of motion of her hips was full.

i)       Right
foot and ankle: Tender in some parts.

[113]     Dr.
Craig’s diagnosis was (my paraphrasing):

a)    The plaintiff
sustained a soft tissue injury to her neck, shoulders and upper back in the
motor vehicle accident, which was moderate in severity.

b)    The plaintiff
did not sustain an injury to her low back as a result of the accident.

c)     The
plaintiff did not sustain an injury to her right knee as a result of the
accident.

d)    Dr. Craig
suspects that the plaintiff had a mood disorder, but, assuming that she does,
he is unable to say whether it was caused by the accident.

e)    The plaintiff
had pre-existing conditions of pain in her back and neck before the accident of
April 9, 2009 but in his opinion these previous problems were “not . . .
prominent in the period just before the April 9, 2009 accident.”

f)      Because
the plaintiff appears to have had a problem with her neck and upper thoracic
region for which she sought chiropractic treatment on March 24, 2009, she was
“at risk of a poorer outcome from subsequent injury to these areas, from the
April 9, 2009 accident.”

g)    Dr. Craig does
not express any opinion as to whether or not the ongoing headaches complained
of by the plaintiff were caused by the accident of April 9, 2009.

h)    Dr. Craig does
not expressly state that he believes the neck and upper back pain that is
complained of by the plaintiff is “chronic.”

[114]    
Dr. Craig’s prognosis for the plaintiff’s recovery is that the plaintiff
is continuing to improve and that she will not reach her point of “maximal
medical improvement” for six months to one year (from January 20, 2012). As to
the plaintiff’s ability to work, Dr. Craig states:

I feel that with further
treatment, she should be able to continue working at her current occupation but
would be at risk of periodic time off in the future, due to injuries from the
April 9, 2009 accident and ongoing symptoms.

[115]    
As to the plaintiff’s ability to do her other activities, Dr. Craig
states:

I see no limitations long-term in her ability to do her
activities of daily living, regular household tasks, and yard tasks with the
exception of heavier ones, such as snow shovelling.

[116]    
The final paragraph of the text of Dr. Craig’s prognosis reads as
follows:

She would be at risk of
aggravation of her current symptoms or a more prolonged period of recovery if
there was another work, recreational, or motor vehicle related injury, due to
injuries from this accident. There is a slightly increased risk of accelerated
degenerative changes in her neck due to injuries from this accident.

[117]     Dr. Craig
makes a number of recommendations for the plaintiff’s treatment, which include
the following:

a)    “. . . she needs
her possible mood issues addressed [by a psychologist or psychiatrist], in
addition to her sleep.”

b)    The plaintiff
should start increasing her recreational activities, and Dr. Craig recommends
that she engage in a regular gym routine. He recommends supervision by a kinesiologist
for about 18 to 30 sessions, in the six to twelve months after January 20,
2012.

c)     The
plaintiff should avoid passive treatments, including acupuncture.

[118]     In the
appendix attached to his report, Dr. Craig makes a number of additional
comments which I would summarize as follows:

a)    He gives reasons
why he concludes that the plaintiff did not suffer an injury to her right knee
in the accident.

b)    Dr. Craig
recommends assessment by a psychologist or psychiatrist, to determine whether
the plaintiff has a mood disorder. Dr. Craig suspects that the plaintiff does
have a mood disorder because she is very pain focused, she “reported pain in
her neck and shoulder girdle even with superficial palpation”, and her reported
symptoms and his findings on examination “would not entirely fit with what she
has been able to do at work.”

c)     He gives
reasons why the plaintiff’s possible mood disorder and her reported sleep
disturbance should be investigated (i.e., because these things, if they exist,
“can be a major barrier to recovery”).

d)    Dr. Craig notes
that the plaintiff has been reporting pain in areas other than the injured
areas of her neck and upper back.

e)    Dr. Craig
recommends “another trial of a tricyclic antidepressant.”

f)      Dr.
Craig says he is not making a diagnosis of fibromyalgia.

[119]     Counsel
for the plaintiff asked Dr. Craig a number of questions before he was
cross-examined on his report.

[120]     Dr. Craig
said that his findings as to the plaintiff’s neck rotation and head tilt
indicated that the plaintiff’s range of motion in these respects was less than
normal.

[121]     Dr. Craig
was asked to define “chronic pain” and he said that it was pain that lasts
longer than six months and which causes some degree of impairment of physical
activity.

[122]     In answer
to further questions from counsel for the plaintiff, Dr. Craig stated that
persons who have anxiety or depression often have a low pain threshold and that
a majority of his patients who have chronic pain, also have “mental health
issues.” I understood him to mean “mental health issues” falling within a
recognized psychiatric disorder such as anxiety or depression. But these two
comments by Dr. Craig were only general in nature, and were not intended to
refer to the plaintiff. These remarks seemed to be intended as further
justification for Dr. Craig’s recommendation that the plaintiff’s possible mood
disorder should be further investigated.

Cross-examination

[123]     Dr. Craig
was cross-examined extensively about his opinions and the reasons on which his
opinions were based. I will summarize some of the more important evidence
elicited by defence counsel.

[124]     Dr. Craig
agreed that the force of the impact from the collision in which the plaintiff
was injured is a significant factor in his assessment of the severity of the
plaintiff’s injury. He also stated that the amount of damage to a motor vehicle
involved in a collision can be an indicator of the force of the impact.

[125]     On being
referred to the notes he made of his discussion with the plaintiff, Dr. Craig
testified that the plaintiff told him that her car was pushed forward 10 to 12
feet by the force of the collision and that the rear bumper of her car was
destroyed. He was not sure whether the plaintiff had told him that the front of
her car had hit the vehicle that was stopped in front of her. Upon being
referred to his written report, Dr. Craig then stated that the plaintiff had
told him that her car was pushed into the car in front of her. He acknowledged
that he had written that there was extensive damage to the rear bumper of the
plaintiff’s vehicle. Dr. Craig said that the plaintiff had told him that her
head had struck the head rest twice during the collision.

[126]     Dr. Craig
said that, as a result of what the plaintiff had told him and what he had seen
in the records he had reviewed, he estimated that the force of the collision
was of medium or moderate force. He said that he considered the amount of force
involved to be significant and that it could cause moderate injury.

[127]     Dr. Craig
stated that findings of muscle spasm, restricted range of motion in joints,
deformity and bruising would be objective evidence that would support the
existence of injury. He acknowledged that a patient’s complaints of pain on
palpation and complaints of restricted range of motion due to pain, were partly
objective and partly subjective findings. But I understood him to say that
these findings were usually more objective than subjective.

[128]     When asked
about the date on which Dr. Mark’s clinical records showed that she had last made
an objective finding of injury, Dr. Craig was unable to give a date. He was
referred to the clinical notes of the plaintiff’s first doctor’s visit on April
16, 2009, the physiotherapist’s note of April 22, 2009 and the chiropractor’s
notes of April 29, 2009. Counsel suggested that there were minimal findings on
April 16, some objective findings on April 22, by the physiotherapist,
(decreased range of motion and muscle spasm) but no note of any objective
findings after that date. Dr. Craig said that it was not his practice to
document the findings made in all of a patient’s visits to a doctor after an
accident, beyond the first few weeks. He added that often an attending doctor
does not examine a patient on every visit. He acknowledged that the
chiropractor, Dr. Austin had noted: “full ROM but guarding a lot” on April 29,
2009.

[129]     Defence
counsel questioned Dr. Craig about the plaintiff’s pre-existing conditions. Dr.
Craig agreed with counsel’s suggestion that the plaintiff did not sustain any
injury to her right knee in the accident of April 9, 2009. It was pointed out
to Dr. Craig that the plaintiff had seen a doctor on June 12, 2007, complaining
about low back pain. Dr. Craig had not mentioned that event in his report, and
did not consider it of significance. He was then questioned at some length
about the statements made in his report under the heading “Past Medical
History” (at pp. 6-7).

[130]    
Counsel referred Dr. Craig to the statements he made in his report about
what the plaintiff had told a massage therapist during a visit on December 21,
2007. Dr. Craig had written (at p. 6):

The December 21, 2007 note comments on back, neck, and knee.
She stated that some symptoms had started 15 years ago and the knee two and
one-half years before. The note comments on having had migraines for a long
time. She was reporting tension and pressure at the back of her knee. She
stated she had chronic pain x 15 years and saw a chiropractor which had helped.
There was a comment about palpating tension in her right low back and gluteal
region.

[131]     Counsel
for the defendant asked Dr. Craig whether he had questioned the plaintiff about
her condition on December 21, 2007 and the statements she had apparently made
to the massage therapist. Dr. Craig answered that he did not make a note of
specifically asking the plaintiff about whether she had symptoms that had
persisted for 15 years as at that date. He added that he had not seen any other
similar comments in any of the records that he had reviewed.

[132]    
Counsel referred Dr. Craig to his report at page 6 where he noted that,
in a May 29, 2008 visit to the massage therapist, the therapist had recorded
complaints of low back tightness and upper back on the right, and that the
plaintiff received “general treatment on her neck.” Counsel then referred Dr.
Craig to this part of his report (at p. 6):

The August 16, 2006 chiropractic
notes comments on right neck, arm, shoulder, back symptoms, and knee achy and
swollen. She received treatment March 26, 2008 for upper back and bilateral
neck symptoms. The March 24, 2009 chiropractic notes comments on neck, (very
illegible) and upper thoracic.

[133]     Counsel
implied by his questioning that Dr. Craig had not sufficiently explored the
plaintiff’s pre-existing condition and had not given it sufficient weight in
forming his opinions. Dr. Craig answered that he had noticed some pre-existing
issues but said that they did not really look like chronic pain to him, from
what he had seen in the clinical records provided to him (which he said did not
go back more than two years before the accident).

[134]     Dr. Craig
testified that he would have asked the plaintiff if she had experienced
significant problems with her neck or back, before the accident. He did not say
what the plaintiff may have told him, but he did say (at p. 7 of his report)
that the plaintiff told him: “she had occasional left shoulder pain, prior to
the April 9, 2009 accident, if she overdid it.”

[135]     Dr. Craig
expressed the opinion that the plaintiff most likely suffered muscular strain.
But he then added, as only possibilities, that there could be ligamentous or
even disc injury. He acknowledged that the plaintiff’s degenerative disc
disease in her cervical spine was not caused by the accident. He did say that
degenerative disc disease can be accelerated by soft tissue injury to the
spinal structures.

[136]     On being
questioned about the plaintiff’s work history following the accident, Dr. Craig
acknowledged that he did not know of the specific symptoms complained of by the
plaintiff which induced her to take time off work in November and December
2009. Nor did he know whether the plaintiff had recovered from those symptoms
when she returned to work in December 2009.

[137]     Counsel
asked Dr. Craig about the wide-spread symptoms she complained of on his
examination on January 20, 2012, such as pain in her hip, tail bone and
sometimes in her entire back. Dr. Craig seemed to say that these unusual
complaints were part of the reasons why he suspected that the plaintiff may
have a mood disorder. He stated that he did not think that this motor vehicle
accident would cause a mood disorder in the plaintiff (assuming a mood disorder
does exist).

[138]     Dr. Craig
included in the passive treatment that should be avoided by the plaintiff,
massage therapy, chiropractic treatment and acupuncture.

[139]     Dr. Craig
was asked about muscle tone, and he said that muscles could be soft when relaxed,
or firm when contracted or activated by muscle spasm. He said that muscles can
be contracted by lifting weights or by consciously tensing the muscles (which
is a common sense proposition).

Re-Examination

[140]     Counsel
for the plaintiff asked questions of Dr. Craig in re-examination about a
possible right knee injury. On hindsight, I think this question was not proper
re-examination. In effect, counsel asked Dr. Craig whether the plaintiff’s
right knee problem would be related to the motor vehicle accident, if she had
reported it to a doctor immediately, and Dr. Craig answered, in effect,
“Maybe”. Dr. Craig had assumed as a fact (p. 3 of his report) that the
plaintiff had right knee pain immediately following the collision, and that the
other driver confirmed that the plaintiff mentioned knee pain at the scene of
the accident. Having already assumed the truth of those facts, Dr. Craig formed
the opinion that the plaintiff’s complaints of knee pain are not related to the
accident. I understood Dr. Craig to opine that the plaintiff did not sustain an
injury to her right knee in the motor vehicle accident. Counsel should not have
asked these questions in re-examination. Of course, Dr. Craig did not attempt
to change his opinion, in allowing for a possibility that the plaintiff’s knee
problem was related to the motor vehicle accident.

[141]     Dr. Craig
repeated his opinion that the force of impact was moderate and so it would be
capable of causing (and in this case it did cause) moderate injury.

[142]     Counsel
for the plaintiff then asked questions which elicited answers from Dr. Craig
which came close to argument and advocacy. Counsel first suggested that a lack
of an objective finding by a doctor does not mean that the patient had
recovered. Dr. Craig seemed to agree with that suggestion, but added that a
doctor would not make any objective findings if he did not examine the patient.
He went on to say that, in this case, it is sometimes hard to tell from the
clinical notes if the doctor did examine the plaintiff or not. He proceeded to
say that even when doctors do examine the patient, and make an objective
finding, they do not always record it in their notes. I consider that answer to
be speculation.

Evidence Presented by the Defendant

The defendant Corbin Jentsch

[143]     The
defendant Corbin Jentsch was 19 years of age at the time of the accident and is
now 22. He lives and works in Nanaimo.

[144]     In
describing the motor vehicle accident, the defendant said that the weather was
clear and dry at the time. He said that, as he approached the intersection of
Turner Road, the traffic light was red and the car ahead of him was stopped. He
testified that he stopped his car behind that car (i.e. the plaintiff’s car).
He said that the light then turned green, and the brake lights in the car ahead
of him went off. That caused him to assume that the car was beginning to move
forward.

[145]     The
defendant testified that, at that point, he leaned over and looked down and
scratched his right foot, which was itchy. The transmission of his car was then
in the “Drive” position, and the car moved forward on its own. He said he then
looked up, saw that the car ahead of him had not moved, and the front of his
car hit the back end of that car. He said he then backed up. He was not sure if
he then steered over to the left and drove into the left turn lane, or not.

[146]     The
defendant said that he got out of his car and went to the plaintiff, who had
also gotten out. They exchanged information with each other. The plaintiff said
that the accident was minor and there was no need to get the police involved.
He testified that he saw the plaintiff pick up pieces of what he believed to be
his licence plate (cover), from the roadway.

[147]     Mr.
Jentsch was then questioned about the photographs of his vehicle taken on April
23, 2009. He said that a part of the plastic licence plate holder frame had
broken off in the collision but he did not identify any other damage. He said
that he had not gotten an estimate of what it would cost to repair that small
damage and he did not get it repaired.

[148]     The
defendant said that he drove home after the accident, and that the plaintiff
telephoned him about half an hour later. He said that the plaintiff told him
that she had made a claim to ICBC and suggested that he should report the
accident too. Mr. Jentsch stated that he did report the accident to ICBC, the
next day.

[149]     In
cross-examination, the defendant acknowledged that the plaintiff had walked
behind her vehicle, to pick up the pieces of licence plate holder from the
roadway. He admitted that he did not know what movement may have been caused to
the plaintiff’s car, by the collision. He acknowledged that there was a partial
imprint of his licence plate number faintly visible on the rear bumper of the
plaintiff’s vehicle as shown in photograph no. 7 of Exhibit 6 at Tab 5, and in
the blow-ups of that photograph in Exhibit 9.

[150]     At the end
of cross-examination, on being questioned by the court, the defendant testified
that when he bent down to scratch his foot, his right foot was not on the gas
pedal and was not on the brake either. He stated that the movement of his car
at the time it hit the plaintiff’s car may have been more than simply rolling
into her car. He said that the front of his car was approximately one and
one-half car lengths behind the plaintiff’s car when he bent over.

[151]     In re-examination,
the defendant testified that he was about one car length away when he first
stopped behind the plaintiff’s car.

Brent Reid

[152]     Brent Reid
has been an estimator with ICBC since 1996. He inspected the 2001 Toyoto Corolla
that the plaintiff was driving at the time of the accident, assessed the damage
and estimated the cost for repair.

[153]     Mr. Reid
described the visible damage to the rear bumper cover and licence plate holder
bracket. He confirmed that there was no structural or frame damage to the
vehicle. He testified that the total cost to repair the vehicle, for materials,
labour and taxes was $785.53.

[154]     Mr. Reid
gave a detailed description of the damage to the vehicle based on the
photographs and his own notes. He said the rear bumper cover and the Styrofoam
board underneath the bumper cover (which attaches to the metal bumper) were
replaced. He treated the case as a low velocity impact claim. In
cross-examination, Mr. Reid was asked questions about photographs 6, 8, 9 and
10 of Tab 5, Exhibit 6. He did not change his description of the damage to the
plaintiff’s vehicle.

The Issue of
Credibility

[155]     The
defence challenges the plaintiff’s evidence that the force of the impact was
violent. Counsel for the defendant challenges the credibility of the plaintiff
on her claim that she continues to suffer pain from the injury she sustained on
April 9, 2009 and on her claim that the pain continues to impair her physical
abilities to some degree. The plaintiff’s assertion that she suffered an injury
to her right knee in the accident is disputed.

[156]     The defence
disputes the plaintiff’s claim that the reason she switched from the Departure
Bay route to the Duke Point route was because she suffered too much pain when
working eight days straight.

[157]     The
defence also challenged some of the evidence given by the plaintiff’s partner,
Steven Blanchette, so that his credibility is put in issue.

[158]     Counsel
for the defendant challenges the reliability of the opinions given by Dr.
Craig, on the ground that his opinions are based to a significant extent on
erroneous assumptions of fact and on statements made by the plaintiff, which
are not credible. In particular, Dr. Craig’s opinions are challenged to the
extent that he accepted the plaintiff’s account of the force of the impact and
accepted the truth of the plaintiff’s complaints that she was having
significant ongoing pain and related partial disability.

[159]     Counsel
for the plaintiff challenged the credibility of the defendant Corbin Jentsch,
on his account as to how the collision occurred. The credibility of Brent Reid,
the ICBC estimator, was not called into question.

[160]     The
credibility of witnesses is an important issue in this trial. I must assess
credibility before I can make findings of fact on the material issues.

The Credibility
of the Plaintiff

[161]     In my
opinion, a number of facts have been established which have the potential to
adversely affect the plaintiff’s credibility. I will summarize these matters.

[162]     I think
the plaintiff’s description of the violent nature of the impact of the
collision, and its effects on her body is inconsistent with her evidence to the
effect that, after the accident, she did not think she had been injured. I
understood that to be her explanation for not reporting any injury to the ICBC
agent when she called that night to report the accident and make an insurance
claim for the repair of damage to her vehicle. Later in the cross-examination,
the plaintiff changed her evidence to some extent when she stated in substance
that she did not think she had suffered any injury that was serious or
significant. This seemed to be offered as part of the explanation for why she
went to work the next day (and three more days), namely, because she thought
she would be all right in a few days.

[163]     The
plaintiff’s assertion that the rear bumper of her car had been “destroyed” (or
extensively damaged) in the collision is inconsistent with the photographs of
the actual damage and by the evidence of Brent Reid. The amount of damage
caused by a collision does not necessarily correspond to the force of the
impact. But in my view, the plaintiff’s description of the damage to her
vehicle is an obvious and gross exaggeration.

[164]     The
plaintiff has made a number of pre-trial statements that are inconsistent with
her trial testimony.

[165]     The
plaintiff told Dr. Craig that her car had been pushed forward by the force of
the collision. She denied telling Dr. Craig that her car was pushed forward 10
to 12 feet by the force of impact and denies telling him that the front of her
car hit the car that was stopped in front of her. In the face of this direct
conflict, I give the benefit of the doubt to the plaintiff with respect to
those two alleged statements. But she admits that she told Dr. Craig that her
car was pushed forward by the impact. That statement is inconsistent with her
trial testimony in which she admitted on cross-examination that she did not
know whether her car had been pushed forward.

[166]     Dr. Craig
testified that the plaintiff had told him that the rear bumper of her car had
been “destroyed” in the collision. The plaintiff at first denied that she had
made that statement, and said that she probably used the word “shattered” which
she claimed would be an accurate description of the bumper damage. When she was
shown Dr. Mark’s clinical notes of June 29, 2009 (which included the words
“bumper destroyed”), the plaintiff conceded that she may have told Dr. Mark
that the bumper had been destroyed. The plaintiff conceded that she was not
sure whether she had used the word “destroyed” when talking to Dr. Craig, but
did not distinctly admit that she had made such a statement. I infer that the
plaintiff told both Dr. Mark and Dr. Craig that the car bumper had been
“destroyed” in the collision. I find that these statements are inconsistent
with her own description in her trial testimony of the damage to the bumper
that she saw after the collision (i.e., she saw that some pieces had been
broken off the plastic licence plate bracket).

[167]     Defence
counsel suggested to the plaintiff that her condition was improving by April
29, 2009 and (referring to Dr. Mark’s clinical note of that date stating:
“symptoms overall improving but still unable to work”), suggested to the
plaintiff that she had made this (or a similar) statement to Dr. Mark. The
plaintiff denied that she had made any such statement to Dr. Mark, and said
that Dr. Mark’s note that her condition was improving, was false. The plaintiff
asserted that her condition not only was not improving, but it was getting
progressively worse. She advanced that as a reason why she would not have told
Dr. Mark that her condition was improving. But strangely, the plaintiff did not
claim to have told Dr. Mark that her condition was worsening.

[168]     Counsel
referred the plaintiff to Dr. Mark’s note of July 20, 2009 which stated: “has
improved considerably, pain now 4-5/10”, and suggested to her that she had told
Dr. Mark that she had improved considerably by then, and that her statement was
true. The plaintiff did not concede that she had improved considerably by that
date (only that she had “started” to improve). She either denied or did not
admit making a statement that she had made considerable improvement. She said
that she only told Dr. Mark that her pain was 4 to 5 out of 10 because that was
her pain level when she was sitting still in the doctor’s office.

[169]    
It seems highly improbable that an experienced health care professional
such as Dr. Mark would misinterpret what she had been told by the plaintiff
concerning her physical condition. It is true that the defendant chose not to
call Dr. Mark to contradict the plaintiff (and may have had no reason to think
that the plaintiff would contradict the clinical notes). But nevertheless, the
improbability remains and creates doubt about the truth of the plaintiff’s
denials. I was also suspicious of the plaintiff’s attempt to qualify her
statement to Dr. Mark about her pain level, in a way that is not reflected in
Dr. Mark’s notes.

[170]     Defence
counsel referred the plaintiff to Dr. Torrie’s note of June 10, 2009, which
stated: “ROM neck really very good”, and suggested to the plaintiff that the
range of motion in her neck was good on that date. The plaintiff answered to
the effect that the doctor had only told her that her neck range of motion was
good, for her injured condition. That evidence is inconsistent with Dr.
Torrie’s note of her finding as to the plaintiff’s range of motion in her neck,
which is not limited in the way suggested by the plaintiff.

[171]     The
plaintiff admitted in cross-examination that she had sought chiropractic
treatment on March 24, 2009, because a First Aid training course had made her
sore. Under further questioning, the plaintiff testified that the chiropractor
had treated her entire spine, including her neck. But she stated that she was
“just a little bit sore.” It was then shown that, on examination for discovery,
the plaintiff had testified that she was “just extremely sore.” I consider this
to be a serious self-contradiction, having regard to the fact that the
plaintiff had completed the two week First Aid training course on January 25,
2009, which was two months before her visit to the chiropractor. There was no
explanation given for the inconsistency.

[172]    
At page 7 of his report, Dr. Craig wrote:

She had occasional left shoulder
pain, prior to the April 9, 2009 accident, if she overdid it.

In cross-examination at trial, Dr. Craig testified that he
would have asked the plaintiff if she had any significant problems with her
neck or back before the accident. I infer that he did ask the plaintiff this
question, and she answered that she had occasional left shoulder pain, if she
overdid it. Dr. Craig said that he did not question the plaintiff about her
pre-accident neck and back problems which were recorded in the clinical records
of the massage therapist and the chiropractor (which Dr. Craig summarizes at p.
6 of his report). At trial, the plaintiff described the pre-accident condition
of her neck and upper back as only being “fairly good” and she described
certain activities that would make her sore. It is apparent that her statement to
Dr. Craig is inconsistent with her trial testimony on the subject of the
pre-accident condition of her neck and upper back. In my opinion, the plaintiff
failed to fairly disclose to Dr. Craig that she had pre-existing problems with
her neck and upper back.

[173]     The
plaintiff’s evidence upon being questioned about her statements to the massage
therapist on December 21, 2007 seemed highly improbable to me. In substance,
she said that the “chronic pain” that she was describing to the massage
therapist consisted of headaches that were very severe in the first week
following a motor vehicle accident some 15 years earlier when she was 22 or 23.
Her explanation to the effect that she did not know the definition of chronic
pain at that time was at least logically connected to her evidence. But her
statement that she did not have a dictionary to look up its meaning, seemed nonsensical
to me, and diminished the credibility of the first part of her explanation.

[174]     The
plaintiff denied telling the massage therapist on December 21, 2007 that she
had been experiencing pain in her neck and back for 15 years and that she had
been having migraine headaches “for a long time.” But she did not deny that she
had received massage therapy and chiropractic treatments long before the accident,
for her neck and upper back. The plaintiff did try to emphasize that she was
also receiving treatment for her right knee problem and said that her limping
on her right leg may have been causing pain in her low back. In doing so, she
seemed to be attempting to minimize the significance of her neck, upper back
and shoulder problems. Unfortunately, the clinical records of the massage
therapist and the chiropractor were not put in evidence at the trial. Only Dr.
Craig’s summary interpretation of those records was presented, through his
written report, and he did not ask the plaintiff about those records. While I
have grave suspicions about the truth of the plaintiff’s evidence on this
point, I decline to find that she told the massage therapist in December 2007
that she had been having significant pain problems for 15 years.

[175]     Steven
Blanchette, near the end of his cross-examination, disclosed that he and the
plaintiff have been getting the same five days off work together, for about two
years, since the plaintiff changed from the Departure Bay route to the Duke
Point route. The plaintiff did not disclose that fact at any time during her
testimony and Mr. Blanchette did not reveal it in his direct examination. In my
view, when the plaintiff was asked to explain the reasons why she switched
routes in May 2010 (and why she wants to continue working on the Duke Point
route), she should have disclosed this fact. To my mind, it is such an obvious
benefit from the route change that, in common sense, the plaintiff should have
at least mentioned it as being part of the reasons for her conduct in this
regard. Her failure to do so invites the inference that the plaintiff was
attempting to conceal this fact from the court.

[176]     The
plaintiff testified firmly that she worked “predominantly” on the Departure Bay
route before the motor vehicle accident. This conveyed the implication that she
worked almost exclusively on the Departure Bay route, before the accident. On
cross-examination, it was established that she worked a great many shifts on
the Duke Point route, before the accident. The plaintiff did not resile from
her assertion that she did work predominately on the Departure Bay route before
the accident. But her answers in cross-examination cast grave doubt on her
professed interpretation of the word “predominantly”, and indicated a degree of
carelessness with the truth.

[177]     On several
occasions during her cross-examination, the plaintiff gave answers which went
far beyond the requirements of the questions. I would describe them as being
long and elaborate but for the most part, unnecessary. However, I took this to
be akin to a habit on her part, and I find that this conduct of the plaintiff
has no bearing on her credibility.

[178]     I have
identified a number of prior inconsistent statements made by the plaintiff, and
several improbabilities, exaggerations and non-disclosures.

[179]     By reason
of these matters, I have concerns about the plaintiff’s credibility as a
witness. As a consequence, I have doubts about the reliability of her evidence
on the material issues that are in dispute.

[180]     In cases
where a plaintiff alleges that he or she has sustained a soft tissue “whiplash”
injury, there is an “improbability that pain will continue, in the absence of
objective symptoms, well beyond the normal recovery period.” There must be
“convincing” evidence to overcome this improbability. If it is consistent with
the surrounding circumstances, the plaintiff’s own evidence may be sufficient
to overcome the improbability. See Maslen v. Rubenstein (1993), 83 BCLR
(2d) 131 at para 15.1; Mariano v. Campbell 2010 BCCA 410 at para 40.

[181]     In the
present case, my conclusion is that the plaintiff’s evidence alone is not
sufficient to overcome the improbability. I will require confirmation by other
evidence or consistency with the probabilities arising from the surrounding
circumstances, before accepting the plaintiff’s evidence on any material issue
in dispute.

The Credibility
of Steven Blanchette

[182]     Counsel
for the defendant challenged the reliability of Mr. Blanchette’s evidence on
disputed points, on a number of grounds. It was first pointed out that he was
wrong in saying that the plaintiff sought chiropractic treatment within a few
days after completing the first aid training course, when the treatment
occurred two months after the end of the course. Next, counsel pointed out the improbability
of Mr. Blanchette’s evidence that he did not know about the plaintiff’s
acute problem with her right knee in November 2009 (when she reportedly fell
down after getting out of bed and when it was obviously a reason why she wanted
to take a vacation). Counsel further submitted that Mr. Blanchette sought to
convey the erroneous inference that the auto body repair shop could not repair
the damage to his car without first getting an estimate by an ICBC estimator,
because of the amount of the damage to the vehicle.

[183]     Defence
counsel submitted that for these main reasons, and for inherent bias, Mr.
Blanchette’s evidence about the plaintiff’s pre -accident condition and the
degree of impairment of her former physical activities due to her injury from
the accident, should be discounted. It was said that he tended to exaggerate
the effects of accident-related injuries and minimized the effects of other
painful areas of the plaintiff’s body of which she presently complains (right
knee, right ankle and foot, low back and hip).

[184]     The points
argued by defence counsel were all well taken, in my view. I will be hesitant
to accept Mr. Blanchette’s evidence as confirmation of the plaintiff’s
pre-accident condition or of any complaints of pain and disability made by the
plaintiff, post-accident, after October, 2009.

The Reliability
of the Expert Opinion Evidence of Dr. Craig

[185]     In my
opinion, Dr. Craig’s opinions are weakened by his acceptance of a number of
assumptions as being true, when the assumptions were either questionable or
false. First, he appears to have relied, in large part, on the plaintiff’s
account of the force of the impact. In addition to the plaintiff’s statements
already described, further evidence of this appears in his report at page 3,
paragraph (c) where he stated: “. . . items were dislodged inside Ms.
Scoffield’s vehicle.” But the plaintiff denies that she made several of the
statements that Dr. Craig relied on, relating to the force of the collision.

[186]     Next, Dr.
Craig acknowledged that the plaintiff had “some back and neck issues prior to
the April 9, 2009 accident,” but concluded that “These did not appear to be
prominent in the period just before the April 9, 2009 accident. . . . “
Notwithstanding the pre-existing problems which Dr. Craig found in the clinical
records, he admittedly did not question the plaintiff about those matters. He
said that the plaintiff told him that “she had occasional left shoulder pain,
prior to the April 9, 2009 accident, if she over did it.” I infer that he
accepted this statement of the plaintiff as being true, since he expressly
stated in his report that he relied on the “clinical history reported by the
patient.” It has been established that the plaintiff did not disclose the true
extent of her pre-existing conditions to Dr. Craig. Had he known that the plaintiff
sought chiropractic treatment on March 24, 2009 for problems which included
neck and upper back pain caused by the physical exertion during her First Aid
training course that ended on January 25, 2009, his opinion that the
pre-existing conditions were “not . . . prominent,” might well have been
different.

[187]    
At page 3 of his report, Dr. Craig states that his assumptions included
the following:

(f)         Since the collision,
Ms. Scoffield continues to have headaches and             pain in her neck,
upper back and right knee.

[188]     Dr. Craig
was asked by counsel for the plaintiff (in his instruction letter) to assume
the truth of that assumption. The inference is inescapable that the plaintiff
must have told Dr. Craig that she believed her ongoing symptoms were caused by
the injury she sustained in the motor vehicle accident. Dr. Craig concluded
that the plaintiff’s right knee pain was not causally related to the motor
vehicle accident. Nowhere does he expressly state the opinion that her
complaints of ongoing headaches are genuine or that they are caused by the
injury in the motor vehicle accident (although these opinions might be
implicit). To that extent, Dr. Craig does not accept the plaintiff’s theory of
causation. But he does assume that the plaintiff’s complaints of ongoing pain
in her neck and upper back are genuine, and he opines that the pain is caused
by the injury sustained in the accident. Dr. Craig made no findings on
examination of the plaintiff that were totally objective in nature. He even advanced
a possible explanation (bordering on advocacy) for why no objective findings by
doctors or other health care professionals were recorded in clinical notes
beyond a few months after the accident. Dr. Craig also assumed that the
plaintiff’s pre-existing problems were not significant. In these circumstances,
I conclude that Dr. Craig’s opinion that the plaintiff’s ongoing complaints of neck
and upper back pain are causally connected to the motor vehicle accident, is
weakened by his assuming the truth of facts based largely on his uncritical
acceptance of the truth of the plaintiff’s statements.

[189]     As
mentioned, Dr. Craig testified that he understood the plaintiff’s complaints
about pain in areas totally unrelated to the motor vehicle accident injury to
be episodic in nature, and not continuous. That matter was not much explored in
the questioning of the plaintiff, and Dr. Craig’s interpretation of these
unusual complaints by the plaintiff may be correct. However, in my opinion Dr.
Craig failed to adequately investigate the plaintiff’s pre-existing problems
with pain in her neck and upper back. That failure, coupled with the
plaintiff’s non-disclosure, may have induced him to prematurely conclude that
those pre-existing problems were intermittent or episodic in nature and to ignore
the possibility that they were chronic.

[190]     Dr. Craig
concluded (using a method which is unclear to me) that the motor vehicle
accident had resulted in moderate damage to the plaintiff’s vehicle and from
that foundation he inferred that the injury sustained by the plaintiff was
moderate in degree. The case authorities on this issue establish that the
degree of the force of the impact which occurred in a motor vehicle accident is
relevant to the issue of whether a plaintiff was injured in the accident and also
relevant to the issue of the extent of any injury that was sustained. However,
the cases say that the force of impact is not determinative of either issue.
Those issues must be decided after considering the whole of the evidence that
is relevant to each of them. See Laxdal v. Robbins 2009 BCSC 1074 at
paras 15 – 17; Bartel v. Milliken 2012 BCSC 563 at paras 23 – 24; and Sooch
v. Snell 2012 BCSC 696 at para. 83.

[191]     In the
present case, it is admitted that the plaintiff sustained injury to the soft
tissues of her neck, shoulders and upper back as a result of the accident. Thus
it is admitted that the forces generated by the collision were capable of
causing injury to the plaintiff and did in fact cause her injury. However, Dr.
Craig relied on his conclusion that the force of the impact was moderate, to
support the further conclusion that the degree or extent of the plaintiff’s
injury was moderate. In doing so, Dr. Craig appears to have fallen into the
error of considering the force of the impact to be determinative on the issue
of the extent of the injury to the plaintiff. As I see it, Dr. Craig was not
qualified to assess the force of the impact or to determine whether the degree
of force corresponded to the severity of the plaintiff’s injury. See Homolka
v. Harris 2002 BCCA 262. I considerate this to be a further significant
weakness in the opinions given by Dr. Craig.

[192]     As a
consequence of the factors I have discussed above, I am unable to accept Dr.
Craig’s opinion that the plaintiff’s complaints of ongoing pain in her neck,
upper back and shoulders are caused by the injury she sustained in the motor
vehicle accident of April 9, 2009.

The Credibility
of the Defendant

[193]     Counsel
for the plaintiff submitted that the defendant’s version of how the accident
occurred should not be accepted because it makes no sense. Counsel referred to Mr.
Jentsch’s evidence that he saw the brake lights go out on the plaintiff’s
vehicle, before he took his foot off the brake and argued from this foundation
that the defendant was really claiming that the plaintiff’s car was moving
forward before his car started to move. The argument proceeded that, if that
was true, then the plaintiff’s vehicle would have been moving forward and his
slow-rolling vehicle could not have come into contact with it at all.

[194]     I do not
accept this submission. The defendant did say that he saw the brake lights go
out on the plaintiff’s vehicle and assumed that it was going to begin to move
forward (because the traffic light was green). The defendant was probably mistaken
about seeing the plaintiff’s brake lights go off. But he did not try to claim
that he saw the plaintiff’s vehicle actually move forward. To my mind, that
removes the strength from the plaintiff’s argument.

[195]     The
defendant was quite timid in the way he described the accident. He would not
even venture an estimate of the speed of his car, when it bumped into the
plaintiff’s car, when the logical implication of his description of events was
that his speed was very slow. He did not give, nor was he asked to give, a
description of the force of impact generated by the collision. I am not
persuaded that the defendant’s credibility was impeached. Except for his
evidence that he saw the plaintiff’s brake lights go out before his car began
to move forward, I accept the defendant’s version of the events leading up to
and including the collision. There is no conflict of any significance between
the evidence of the plaintiff and that of the defendant, relating to the events
immediately following the collision, and their telephone discussion later that
evening.

The Indirect
Challenge to Brent Reid’s Evidence

[196]     Counsel
for the plaintiff did not challenge Mr. Reid’s credibility in
cross-examination. But in argument, it was submitted that there was more damage
to the bumper of the plaintiff’s car than was described by Mr. Reid. It was
also suggested that an iron pin which protrudes backwards through the steel bar
of the bumper could have been driven forward by the force of impact, because it
seems to be closer to the surface of the steel bumper on the driver’s side than
the pin which protrudes through the bumper bar on the passenger’s side. That
argument was based on the photographs of the vehicle.

[197]     I do not
accept this argument. I thought that Mr. Reid described the damage to the
plaintiff’s car carefully and in considerable detail. I accept his evidence.

What was the force of the impact?

[198]     Counsel
for the plaintiff argued that the plaintiff’s statement to ICBC was introduced
into evidence as part of the defendant’s case, and that the statement confirmed
her trial testimony in several respects. I do not agree with this submission. I
accept defence counsel’s statement to the effect that the plaintiff’s statement
was not included in its book of documents as evidence of the truth of its
contents, but only for convenience to be used in cross-examination, in the
event that the plaintiff contradicted it in her trial testimony. But including
the plaintiff’s statement in this way is a practice that should be avoided.

[199]     Counsel
for the plaintiff pointed out that defence counsel had suggested to the
plaintiff that she had not told the ICBC adjuster that she received a bruise
from the seat belt, but noted that this suggestion was rebutted by the
adjuster’s notes. Counsel for the plaintiff (relying on R. v. Stirling,
[2008] 1 S.C.R. 272) argued that this evidence went beyond merely neutralizing
the suggestion of recent fabrication and had the effect of supporting the
plaintiff’s credibility (on the issue of whether she had sustained a seat-belt
bruise). I do not agree that an analogy exists between this case and R. v.
Stirling, on this issue. But I do find that Mr. Blanchette’s evidence
confirms the plaintiff’s evidence on this point.

[200]     I do not
accept the plaintiff’s version of the force of the impact being violent and
causing violent movements of her upper body and head. I do not accept her
evidence that the collision caused several items to “fly around” inside her
car. Nor am I satisfied that the plaintiff’s body was forced forward against
her seat belt with any significant degree of force. She did sustain some
bruising from seat belt contact, but it was very faint and minor.

[201]     I find
that, after initially coming to a full stop, the defendant’s vehicle was moving
very slowly when it made contact with the rear bumper of the plaintiff’s car. The
plaintiff’s car was not pushed forward. The damage caused by the collision was
minor. The force of the impact was low. The defendant backed his car up after
the collision, and the bits of plastic picked up by the plaintiff some distance
behind her car, fell away from his car as he was backing up. I do not accept
the plaintiff’s estimate that the closest pieces of plastic on the roadway were
eight feet behind the bumper of her car.

What injuries were sustained by the plaintiff in the motor vehicle accident,
how serious were the injuries and how long did they last?

[202]     The
defendant admits that the plaintiff sustained injury to the soft tissues of her
neck, upper back and shoulders as a result of the collision of April 9, 2009. I
made that finding of fact. But the plaintiff alleges that the degree of
severity of the injury was moderate, whereas the defence argues that it was
only mild, or mild to moderate in degree.

[203]     Dr. Craig
assumed that the force of the impact was significantly greater than I have
found to be the case. I do not accept Dr. Craig’s opinion that the extent of
the plaintiff’s injury was moderate. I find that the degree of severity of the
injury was near the low end of the mild to moderate range.

[204]     The
plaintiff alleges that she sustained an injury to her right knee which was an
aggravation of her pre-existing condition. Dr. Craig’s opinion is not to that effect.
I find that the plaintiff has failed to establish that she sustained an injury
to her right knee, in the accident. She may have experienced pain in her knee,
but it was of short duration.

[205]     Counsel
for the plaintiff submits that the injury sustained by the plaintiff caused
“the probable development of mood issues.” He submits that Dr. Craig has given
an opinion which supports this conclusion. I disagree with counsel’s
interpretation of the opinion given by Dr. Craig. I find that the plaintiff has
failed to prove that she developed a mood disorder as a result of the injury
she sustained in the accident.

[206]    
The plaintiff alleges that she experienced (and continues to experience)
frequent and serious headaches as a result of the injury she sustained to her
neck and upper back. Dr. Craig assumed as a fact that “since the collision, Ms.
Scoffield continues to have headaches. . . .” He also noted this complaint of
the plaintiff in his report (at page 8):

She develops headaches in an occipital
pattern when her neck pain has flared.

However, Dr. Craig did not express the opinion that the ongoing
headaches of which the plaintiff was complaining, were caused by the injury she
sustained in the motor vehicle accident. I accept that the plaintiff
experienced intermittent headaches which were causally related to her injury up
to about the time she began a gradual return to work, on August 9, 2009. But I
find that the plaintiff has failed to prove that she continued to experience
headaches of any significance that were causally related to the motor vehicle
accident, beyond the time of her return to full time employment on or about
October 10, 2009.

[207]     The
plaintiff also alleges that she has experienced sleep interruption as a further
result of the injury that she sustained in the accident of April 9, 2009. Dr.
Craig does not express any opinion that the plaintiff’s complaint of ongoing
sleep disturbance was caused by her physical injury. In my view, he treated the
plaintiff’s sleep disturbance in the same way as the plaintiff’s possible mood
disorder. Dr. Craig seemed to have accepted the plaintiff’s complaints about
mood and sleep problems, but he refrained from giving an opinion as to
causation of these conditions, and recommended further investigation. I accept
that the plaintiff’s injuries would have interfered with her proper sleeping to
some extent, for some limited period of time after the accident, perhaps up to near
the time she returned to full time work in October 2009. But I find that the
plaintiff has failed to prove that any sleep disturbance she may continue to
have, is being caused by the injury she sustained in the motor vehicle
accident.

Does the plaintiff continue to experience pain
from her injury?

[208]     The
plaintiff alleges that she continues to experience neck and upper back pain
from her injury, and that it has become chronic in nature. The defence denies
that the plaintiff continues to experience pain or disability which is causally
related to the motor vehicle accident. The defence denies that the plaintiff
has developed a condition of chronic pain as a result of her injury, and
alleges that she had substantially recovered from her injury by the end of
2009.

[209]     Dr. Craig
was asked to assume (and did assume) that the plaintiff was continuing to
experience pain in her neck and upper back. However, he does not expressly
state an opinion that the plaintiff was experiencing pain when he examined her
on January 20, 2012, or that the pain of which she was complaining was caused
by the motor vehicle accident. But I take these conclusions to be implied. In
his trial testimony, Dr. Craig was asked to define “chronic pain”, and he
described it as being pain which lasts longer than six months and which causes
some degree of impairment of physical activity. Dr. Craig did not express any
clear opinion that the plaintiff was suffering chronic pain in this sense and
that such chronic pain was being caused by the injury she sustained in the
motor vehicle accident. If those opinions are implicit in his report (or his
report combined with his trial testimony), I would not accept them, for reasons
for which I have already given.

[210]     The
plaintiff did not flatly deny that she had been having some problems with pain
in her neck and upper back as a result of the physical exertion required by her
regular job duties. She did attribute blame to the First Aid training course in
January 2009 for the problems she was having when she went to the
chiropractor on March 24, 2009. But that was two months following the completion
of that course. Moreover, there were several earlier occasions (in 2006, 2007
and 2008) on which she sought treatment for similar problems. Yet the plaintiff
repeatedly stated that her working abilities were “unrestricted” before April
9, 2009.

[211]     In addition,
the plaintiff effectively admitted on discovery (Qs 287-291) that she needed
chiropractic treatment before the accident “every once in a while” for “my back
in general” (which included her neck and upper back) as a result of pain caused
by doing her work “on board the ship.” That evidence is inconsistent with the
plaintiff’s trial testimony.

[212]     I accept
the plaintiff’s discovery evidence, notwithstanding that the plaintiff did not
adopt it as being true. A trial judge has the discretion to accept the previous
inconsistent statements of a party for their truth (unlike the un-adopted previous
inconsistent statements of a non-party witness). See Mariano v. Campbell
2010 BCCA 410, at para. 45; R. v. Mannion, [1986] 2 SCR 272 at paras 8 –
9.

[213]     I would
add that Steven Blanchette’s evidence on this point did not confirm the
plaintiff’s evidence. He said she got the chiropractic treatment for her back
as a result of the physical demands of her First Aid training course.  But he
thought she got the treatment within a few days after the course was completed
and that she had no problems after that.

[214]     The
plaintiff testified to the effect that the pain caused by doing her regular job
duties was far worse after the motor vehicle accident, and I accept her
evidence that she was unable to properly perform her full work duties on a
full-time basis until October 10, 2009. I infer that her decision to take time
off for vacation in late November 2009 was mainly related to an acute problem
that she had with her right knee, rather than neck or upper back pain.

[215]     I accept
the plaintiff’s evidence (which is confirmed by Mr. Blanchette) that her job
includes physically – demanding work. I was not impressed with the plaintiff’s
attempt to claim that her working abilities were “unrestricted” before the
accident of April 9, 2009, but that they were restricted after that, even after
she returned to full-time work. The plaintiff testified in substance that she
was having a very difficult time doing her job after returning to full-time
work by reason of her injury in the motor vehicle accident. She insisted that
she was restricted in her job abilities and that her supervisors and fellow
workers knew that she was, because she told them and because they could see for
themselves. She denied that she ever told any doctor that her working capacity
was “unrestricted” although Dr. Mark had so stated in her medical assessment of
October 9, 2009 and a doctor appointed by her employer stated that she was
“unrestricted” when he examined her on July 28, 2011 for her Seafarers
Medical examination. She also claimed to have told her first aid training
instructor (at the renewal course in February 2011) that she was having
problems with her neck (but she passed the course, nevertheless).

[216]     The
plaintiff’s testimony on this subject included a number of previous consistent
statements allegedly made to her doctors, supervisors and fellow employees. In
substance, she claims to have told these people that she was not able to do her
full work duties because she was still feeling pain in her neck and upper back
from the motor vehicle accident. The plaintiff’s trial testimony, concerning
these alleged statements, is of course not admissible to prove that what she
told these people was true. That could only be proved by the acceptance of the
plaintiff’s testimony. The plaintiff failed to call a single witness to confirm
her evidence that she was having significant problems performing her work
duties due to neck and upper back pain, after returning to full-time work.

[217]     In these
circumstances, I do not accept the plaintiff’s evidence on this issue. I think
it is highly improbable that two medical doctors would declare the plaintiff to
be unrestricted in her work capacity if the plaintiff was telling the doctors
that she did have such restrictions.

[218]     I do not
reject the plaintiff’s evidence that she continues to experience episodes of
pain in her neck and upper back. But on the whole of the evidence, I find that
the plaintiff had substantially recovered from her injury within one year
following the accident of April 9, 2009. The injury she received in the motor
vehicle accident was superimposed on pre-existing conditions which included
pain in her neck and upper back. I find that, long before the motor vehicle accident
of April 9, 2009, the plaintiff had been experiencing pain and soreness in her
neck and upper back caused by doing her regular job duties for BC Ferries
(mainly the heavier cleaning work and the fire and rescue drills). I accept (in
part) the plaintiff’s evidence that, before the accident, her neck and upper
back were “fairly good”, to the extent that she was able to do her work, but
with some pain and discomfort. On the evidence presented, I am unable to say
whether the plaintiff’s pre-accident condition was one of chronic pain or only
intermittent episodes of pain. Nor am I able to determine whether her present
condition of pain is chronic or intermittent. But I find that any pain (or pain
episodes) experienced by the plaintiff after April 9, 2010 were not caused by
the injury she sustained in the accident of April 9, 2009. By that time, the
effects of the injury had subsided.

[219]     I am
mindful that the plaintiff is not required to prove that the injury caused by
the defendant’s negligence is the sole cause of her ongoing pain or disability.
If it is shown that her injury in the accident and her pre-existing condition
are both contributing causes of her ongoing pain, the plaintiff can succeed on
this issue. In applying the “but for” test of causation, a trial judge must
consider whether the plaintiff has established a substantial connection between
the injury caused by the defendant and the plaintiff’s ongoing pain and
disability, beyond the de minimus level. See Farrant v. Laktin
2011 BCCA 336 at paras 8 – 11.

[220]     In this
case I have concluded that the plaintiff has failed to prove that there is a
substantial connection beyond the de minimus level, between her ongoing
neck and upper back pain, and the accident of April 9, 2009. Even accepting
that the plaintiff’s pre-existing neck and upper back problem may have made the
plaintiff more vulnerable to injury in these areas (even from a minor
collision), I find that the plaintiff’s injury caused by the accident, and its
effects, had resolved within a year after the accident.

What amount of damages should be awarded to the plaintiff for non-pecuniary
loss?

[221]     I find
that, from April 16, 2009 until August 9, 2009, the pain from the injury
prevented the plaintiff from working. After that, she was able to commence a
gradual return to working full-time, which took a further two months until
October 10, 2009. For the first four months after the accident, the pain from
the injury prevented the plaintiff from engaging in her former recreational and
athletic activities. She gradually resumed her former activities after that
time. I find that, by the spring of 2010, the plaintiff had substantially
returned to the level of recreational and athletic activities that she had done
before the accident. After that time, any impairment of the plaintiff’s
physical capacity to work or to do other activities was not caused by the
injury she sustained in the accident on April 9, 2009.

[222]     I do not
accept the plaintiff’s testimony that pain in her neck and upper back from the
injury was a major part of the reason why she decided to take a vacation which
started on November 27, 2009.

[223]     I do not
accept the plaintiff’s testimony that in May 2010 she changed from working on
the Departure Bay route to the Duke Point route, because she was experiencing
too much pain from her injury to work eight days straight, and needed five days
off to recover sufficiently to return to work after each work week.

[224]     In the
absence of medical evidence to confirm the plaintiff’s testimony, I do not
accept her evidence that she has continued to suffer muscle spasms on a regular
basis. If in fact such muscle spasms have occurred, then I would find that they
are not causally connected to the injury she sustained in the motor vehicle
accident.

[225]     Counsel
for the plaintiff submits that a fit award for pain and suffering and loss of
enjoyment of life would be $60,000.00. Counsel for the defendant argues that
the appropriate range of damages is $25,000.00 to $30,000.00 (the mid-point
being $27,500.00). As expected, both counsel have referred the court to
previously decided cases which, in their view, support their respective
positions. Such cases can sometimes be a useful guide, but every case has
significant differences from all others, and each case must be decided on its
own facts. The factors that a trial judge should consider in assessing damages
for non-pecuniary loss have been summarized in Stapley v. Hejslet 2006
BCCA 34 at para 46.

[226]     The
plaintiff must be fairly compensated for the amount of pain and suffering and
loss of enjoyment of life that she has incurred by reason of the injury caused
by the defendant’s negligence. In light of the findings of fact that I have
outlined above, I have decided that the plaintiff should be awarded $30,000.00
as damages for non-pecuniary loss.

What amount of damages should be awarded for past
wage loss?

[227]     The
plaintiff claims $27,284.79 for loss of wages between April 16 and October 9,
2009. She has calculated this loss in great detail in a document entered as
Exhibit 4. She estimates that she would have worked 117 shifts and asserts that
she would have worked 103 hours of overtime. The plaintiff includes six
additional categories of loss and finally adds the loss of banked hours which
she used up to “top up” the payments she received for disability benefits while
off work or working only part-time (she received only 75% of her usual pay
while on sick leave).

[228]     I was suspicious
of the plaintiff’s testimony to the effect that she was, or would have been
assigned by her employer to work on the “C” watch crew for the entire summer
season of 2009. This evidence of the plaintiff was not confirmed by any
documentary or testimonial evidence from BC Ferries. The defence did not accept
this assertion by the plaintiff, but did not take any steps to call evidence to
contradict it. In the circumstances, I have decided to accept the plaintiff’s
evidence on this point.

[229]     The
defendant complains that the plaintiff has calculated her past wage loss by
using the maximum number of work shifts that would have been available to workers
on the “C” watch. The defence submits that there should be “a reasonable
deduction” from that maximum amount. It is suggested that the plaintiff be paid
for 108 shifts (not 117 shifts), that overtime be reduced from $4,367.20 to
$3,264.00 and that “loss of substitution” be reduced from $1,534.50 to $600.00.
If the three deductions proposed by the defendant are made, I calculate that
the total wage loss claim would be $23,720.69.

[230]     Defence
counsel says that $8,580.00 should be deducted from this amount, to arrive at
the net claim payable. Another interpretation of the defendant’s argument would
require only $4,160.71 to be deducted for income tax.

[231]     I can
understand the defendant’s reluctance to accept the plaintiff’s calculations of
past wage loss, at face value. The difficulty I have is that I can see no
objective basis in the evidence for reducing the number of shifts from 117 down
to 108, or for reducing the claim for “loss of substitution”. I would not make
those requested deductions.

[232]     I do agree
that some reduction should be made to the overtime claim. I am not sure what
reasoning was followed by defence counsel in suggesting a reduction of
$1,103.20. I have concluded that the 39 hours of non-scheduled overtime should
be deducted. That deduction would amount to $1,653.60, which would reduce the
overtime claim to $2,713.60.

[233]     I conclude
that the gross loss of earnings of the plaintiff is $25,631.19. The law
requires that an appropriate amount must be deducted for income tax. It would
appear that the banked time used by the plaintiff to top up her disability
benefits would be tax free.

[234]     I am
unable to determine why the defendant says that over $4,000.00 should be
deducted for income tax, whereas the plaintiff submits that the proper amount
is $2,379.00. I am going to leave it to counsel to agree on the proper amount
to be deducted for income tax.

Should any award of damages be made for loss
of future earning capacity, and if so, in what amount?

[235]     The
plaintiff acknowledges that she must prove that there is a real and substantial
possibility that a future event will occur as a result of her injury, and that
the occurrence of that event will cause her a loss of income in the future. See
Perren v. Lalari 2010 BCCA 140 at para 32.

[236]     In making
this claim, the plaintiff relies on the opinions of Dr. Craig and her own
evidence that she was required to change her work schedule by changing her her
place of employment from the Departure Bay route to the Duke Point route, as a
result of her injury. She has testified that since May 2010 she has earned (and
in the future will continue to earn) less income as a result of this switching
of work routes. She says that the approximate amount of her loss is presently
about $3,000.00 per year and she claims $40,000.00 for loss of future earning
capacity.

[237]     In view of
the conclusions I have reached, I reject the plaintiff’s claim for damages
under this head. As previously stated, I do not accept the plaintiff’s evidence
as to the reasons why she decided to switch her work routes. Her careless
assertion that she had always previously worked predominantly on the Departure
Bay route, coupled with her failure to disclose that she and Mr. Blanchette
would get the same five days off together if she worked on the Duke Point route,
makes her testimony on this subject unreliable.

[238]     This
aspect of the plaintiff’s claim for damages is dismissed. The future event
relied on by the plaintiff (i.e., that she will continue to work on the Duke
Point route) has no causal connection with the injury she sustained in the
motor vehicle accident.

Should any award be made for loss of housekeeping
capacity?

[239]     The
plaintiff seeks an award of $5,000 under this head. The defendant says no award
is justified.

[240]     I have
chosen the higher end of the range suggested by counsel for the defendant for
non-pecuniary loss, with the intent that it should include a small award for
loss of housekeeping capacity. I would not make any separate award under this
head.

Should any award be made for the cost of future care, and if so, in what amount?

[241]      The
findings of fact which I have made preclude any award being made for the cost
of future care. I think that Dr. Craig has made sensible recommendations for
the plaintiff, but the need for any future care cannot be attributed to the
defendant’s negligence. This aspect of the plaintiff’s claim is dismissed.

What award should be made for special damages?

[242]     The
plaintiff claims special damages of $8,205.43 up to the time to trial. The
defendant submits that the cut-off date for special damages should be December
31, 2009, and says that this amount would be $3,668.12.

[243]     I find
that, in addition to the amount proposed by the defendant, the plaintiff should
recover special damages for the expenses incurred from January 1, 2010 to April
9, 2010. I will leave it to counsel to calculate the proper amount.

Summary

[244]     The
damages awarded to the plaintiff are the following:

a)    Non-pecuniary
loss                      $30,000.00

b)    Past loss of
earnings                   $25,631.19

(less income tax
to be deducted by agreement of the parties)

c)     Special
damages                              $3,668.12

(plus special
expenses claimed for the period Jan. 1 – April 9, 2010)

[245]     The
plaintiff is entitled to pre-judgment interest on the awards for past wage loss
and special damages.

Costs

[246]    
The plaintiff claims costs of the proceeding. Unless there are facts
unknown to the court which could affect the general rule, the plaintiff should
have her costs on the usual scale. If this issue cannot be settled by the
parties, costs may be spoken to.

  
“Mr. Justice D.A. Halfyard”