IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20120911

Docket: M102387

Registry:
Vancouver

Between:

Brandy Ebonie
Naks, an infant by her
Litigation Guardian, Anna Sawicka

Plaintiff

And:

Mark R. Hesse and
Meghan Elizabeth Smtih

Defendants

Before: The Honourable Miriam
Maisonville

Reasons for Judgment

1.              
INTRODUCTION

[1]            
Brandy Ebonie Naks Williams, an infant, is the plaintiff in an action
for damages arising from a motor vehicle accident which occurred on
February 26, 2005.  Her aunt, Anna Sawicka, is her Litigation Guardian.

[2]            
The facts of this case are almost identical to those of Maya Naks v.
Hesse (Vancouver Registry, Action No. M102387).  The plaintiff and her
sister Maya were both in the same accident and treated by the same physicians
and therapists.  The difference between the two is that Brandy, the plaintiff
in this Action, has an objective finding of a disc bulge, found on an MRI,
which is analyzed later in this judgment.  The reasoning in Maya Nak’s action
is otherwise the same and applicable to this case, including the analysis on
causation and the assessment of an appropriate award.

[3]            
The plaintiff was seated in the right passenger side of the backseat of the
car.  The car was being driven by her mother, Alexandra Williams nee Naks.  As
stated above, also in the vehicle was her younger sister Maya.

[4]            
The plaintiff was born in June 1996, and was eight years of age at
the time of the accident.  She is now 16 years of age.

[5]            
At the time of the accident, the plaintiff’s mother was a single mother,
working full time as a legal assistant in downtown Vancouver, British
Columbia.  She has since remarried and, in July 2010, she and the children
moved to Florida.  The children have assumed the name of Williams, the surname
of their mother’s new husband.  The sisters now have two step-siblings.

2.              
ISSUES

(a)           
Application to dismiss claim

[6]            
The defendants today bring an application pursuant to Rule 9‑7
for summary trial, and asks that the matter be dismissed or, in the
alternative, that the matter proceed to trial for an assessment of damages.

(b)           
Assessment of damages

[7]            
Counsel on behalf of the plaintiff submits that the case is appropriate
for summary trial, and that it should not be dismissed as liability has been
admitted.  The issue is the appropriate assessment of damages.

[8]            
The accident which occurred in 2005 has been admitted to by the
defendants.  As set out by the defendants, however, the key issue arising is
that, following an initial period in which the plaintiff was assessed and seen
by physicians, a number of years passed in which the plaintiff was not treated
for her injuries.  Other than a visit to the family doctor on February 4,
2008, the plaintiff did not attend for any medical care in relation to injuries
from the accident at all between October 2006 and January 2010.

[9]            
No records have been provided to the Court of any medical care that has occurred
in Florida, apart from an MRI report.  That report discloses that the plaintiff
had a small bulge in her L4-5 disc in her back.

[10]        
As a consequence of liability being admitted, I dismiss the defendants’ claim
seeking dismissal of the action.  There is no question that the plaintiff
sustained injuries as a consequence of the accident; in issue, however, is the
magnitude of her injuries.

3.              
ASSESSMENT OF DAMAGES ANALYSIS

[11]        
I turn now to the issue before the Court in the hearing – the assessment
of non-pecuniary damages for the plaintiff’s injury.

4.              
The Accident

[12]        
On Saturday February 26, 2005, the plaintiff was a passenger in a
2000 green Ford Focus (the “plaintiff’s vehicle”), being driven by her mother,
Alexandra Williams.  The plaintiff was seated on the right side of the backseat. 
Her sister was in the passenger seat.

[13]        
The plaintiff’s vehicle was travelling eastbound on 49^th Avenue
in Vancouver, British Columbia.  The defendants’ vehicle, a 2003 gold Toyota
Corolla, was travelling northbound on Alberta Street.  At the intersection of
Alberta and 49^th Avenue, the defendant driver, Mark Hesse, failed to
stop at a stop sign, and he entered the intersection, resulting in his vehicle
being directly in the path of the plaintiff’s vehicle.  Ms. Williams, who
had the right of way, attempted to avoid collision by swerving her vehicle to
the right, but her car hit the left side of the defendants’ vehicle on the
driver’s side, in the area of the rear door and the quarter panel.

[14]        
An ambulance attended the scene of the accident, but the plaintiff was
not taken to the hospital.

[15]        
At the time the accident happened, the plaintiff remembers her body
being thrown forward and then backwards into the seat.  She described almost
hitting the back of the passenger seat when she was thrown forward, and on being
thrown back, she hit her head on the back seat.  While she did not recall
having any pain after the accident, her mother recalls her complaining of neck
pain and a headache immediately after the accident.  She was not seen by the
family doctor until the next business day, which was Monday, February 28,
2005.

[16]        
Both vehicles sustained damage.  The plaintiff’s vehicle was assessed
with $4,680.19 in damages, and the defendants’ vehicle was assessed with
$4,982.08 in damages.

(a)           
Pre-accident

[17]        
At the time of the accident, the plaintiff was a third grade student at
Lord Selkirk School.  She received good report cards, was very active, and enjoyed
good health.  Her mother deposed that the plaintiff was also involved in
dancing, gym, soccer, volleyball, swimming and skiing.  The plaintiff did not
recall having any problems with her back or neck, nor had she suffered from headaches,
before the accident.

[18]        
When she was 3 years of age, in 2005, she was involved in a motor
vehicle accident; however she was treated and recovered without any lingering
effects.  There was no argument that the injuries sustained in this accident
were in any way related to the 2005 accident.  I find that any injuries from
the earlier accident had resolved.

(b)           
Post-accident

[19]        
The day immediately after the accident, the plaintiff had neck pain,
lower back pain and a headache.  On the Monday following the accident, she was
taken by her mother to her family doctor.  Her mother recalls that the
plaintiff complained to her family doctor of a stomach ache, a headache, chest
pain, back pain and neck pain.  According to a review of the plaintiff’s chart
drawn up by Dr. Sharon Barton, the family doctor at the time of the accident,
Dr. Irena Lukowska, had recommended massage therapy.  The plaintiff’s
mother recalled that she was given a prescription on that day.

[20]        
Since the accident, the plaintiff complains that she has pain to her
upper back and her neck.  She describes to her family doctor and
Dr. Purtzki that she suffered headaches.  The headaches usually start in
the afternoon, and continue until she is able to fall asleep.

[21]        
The plaintiff deposed in her affidavit that she could not fall asleep
because of headaches, and neck and back pain.  Occasionally after school, she is
so fatigued that she will take a nap.  She deposed that the pain of the
headaches impeded her ability to study, and the consequent anxiety worrying
about her homework and exams caused her sleepless nights.

[22]        
Her mother has observed her sleep disturbances.  She says that, since
the accident, the plaintiff requires more sleep, particularly after school.

5.              
MEDICAL TREATMENT

[23]        
Ms. Williams deposed that she took the plaintiff to a registered
massage therapist, Krzysztof Maludzinski.  The plaintiff had approximately
seven sessions of massage therapy during the period of March and April 2005.

[24]        
She also took her daughter for chiropractic treatments at Fraser
Chiropractic and Massage Therapy in Vancouver.

[25]        
Ms. Williams deposed that any medical coverage for chiropractic and
massage therapy treatments for her daughters stopped in April 2005.  She could
no longer take the plaintiff in for treatments because as a single mother
raising two children, she could not afford to pay for treatments.  She took the
plaintiff for additional massage therapy on a few occasions in 2007-2009 with a
registered massage therapist at the Massage Therapy Centre in Vancouver.

[26]        
The plaintiff indicated that going to a massage therapist and a
chiropractor gave her some relief but, she says, the benefits never lasted.  To
date, she continues to do stretching exercises that the chiropractor recommended
for her.  She takes Advil or Tylenol to help with pain, and on occasion, she
will use the topical ointment Lakota.

[27]        
Ms. Williams acknowledged the gap in the plaintiff’s medical
treatment after April 2005.  She deposed:

… there were times after the accident
when I would take Brandy and Maya to a doctor for reasons unrelated to their accident
injuries.  Most doctors have a ‘one visit, one complaint’ policy.  I tried to
respect that policy.

Due to her busy schedule as a single mother of two
little girls, working as a legal assistant in downtown Vancouver, she found that
multiple doctor visits were problematic and just one more hurdle for her,
especially considering that there was nothing further the doctors could do, as
she understood it.  She deposed that she stopped taking the plaintiff to the
doctor:

I felt it was a waste of our time
and the doctor’s, to see the doctor every month when it would not change
anything.  I also knew that the doctor did not have the means to fix Brandy and
Maya’s injuries, other than to advise them to continue with massage or
chiropractic care.  I followed the doctor’s advice as best I could, but once
ICBC stopped funding treatment, it was difficult to pay for it myself.

6.              
MEDICAL REPORTS

(a)           
Dr. Julian Ospina-Ordoniz

[28]        
On February 4, 2008, the plaintiff was seen by Dr. Ospina-Ordoniz. 
He filled in a CL-19 form for ICBC, wherein he noted the plaintiff had no
complaints except for occasional neck pain.  On examination, however, he noted “neck
tenderness, spasm muscle of neck”, and he diagnosed a neck injury.

[29]        
It is of note that Dr. Ospina-Ordoniz was not the plaintiff’s general
practitioner and only saw her on the one occasion.  There was no suggestion
that he had done a comprehensive review of the plaintiff’s chart.  For instance
he noted chiropractic in “past treatment”, but omitted the massage therapy.  I
find the CL-19 of very limited assistance, and I do not find that the plaintiff
was recovered when she saw Dr. Ospina-Ordoniz.

(b)           
Dr. Sharon Barton

[30]        
The plaintiff continued to go to the same family practice group and
after Dr. Lukowska retired, she was seen by Dr. Sharon M. Barton a
general practitioner.

[31]        
Writing on July 30, 2010, Dr. Barton described the plaintiff’s
injuries from the accident.  She summarized the plaintiff’s initial complaints
and her condition in 2010, as follows:

Patient’s initial complaints:

1.  Initially Brandy
complained of nausea and a stomach ache.

2.  She was also experiencing
a headache, chest pain and mid-back pain.

3.  In March 2005, she was
experiencing headaches at school and had difficulty concentrating at school. 
There was still neck pain in the upper and lower back.

4.  In April 2005, she had
ongoing headaches, neck and shoulder pain.

[32]        
On physical examination in 2010, Dr. Barton noted that there was
some tenderness in the epigastric region, and on examination of the plaintiff’s
neck there was tenderness and muscle spasms in the anterior and posterior neck
regions.  She also noted tenderness in the interscapular areas of the thoracic
spine.  Recommendations for the plaintiff’s treatment by Dr. Lukowska had
been heat applications and over-the-counter ointments such as Lakota, as well
as Tylenol and Advil for the pain.  Dr. Lukowska had also recommended that
the plaintiff have massage therapy.

[33]        
In July 2010, Dr. Barton noted that the plaintiff’s present
complaints were, first, neck pain exacerbated by movement, second, headaches,
which occur primarily when she is studying, third, upper back pain and
trapezius ridge pain on an intermittent basis and, finally, low back pain if
she stands for more than ten minutes.

[34]        
In writing the diagnosis, Dr. Barton found that the plaintiff had
sustained soft tissue injuries of the neck, upper and lower back.  The
plaintiff was suffering muscle tension headaches.  Dr. Barton concluded
that the motor vehicle accident of February 26, 2005 caused the
plaintiff’s current and ongoing symptoms.

[35]        
In respect of the plaintiff’s prognosis, she wrote:

It is anticipated that Brandy
will continue to experience neck and back symptoms although the intensity may
diminish over the next few years.  She previously was referred for massage
therapy in 2005, and may find future similar treatments beneficial.  An
exercise program would be recommended.  Engagement in school sports are to be
encouraged.

(c)           
Dr. Jacqueline Purtzki

[36]        
The plaintiff was also seen by Dr. Jacqueline Purtzki, a pediatric
physiatrist, on June 17, 2011 for an assessment.  At that time, the
plaintiff complained of the following symptoms:

·       Headaches. 
(Dr. Purtzki noted she had been taking Advil, as well as undergoing
massage therapy and chiropractic sessions);

·       Lower
back pain which occured with standing and sitting.  (The plaintiff complained
to Dr. Purtzki that she had had this back pain since the car accident. 
Her back would get stiff with sitting and she needed to move around);

·       Neck
pain which occured with the headaches;

·      
Sleep difficulties (although Dr. Purtzki noted that the
plaintiff’s complaints of sleep stem from her anxiety and worries about her
friendships and social situation).

[37]        
On examination, Dr. Purtzki noted a normal neurological finding. 
Her shoulder examination disclosed tenderness to palpation across the
lumbosacral area, with “decreased flexion but excellent extension”.  Her
shoulder and neck examination displayed “severe myofascial trigger points over
the upper trapezius and lower neck area”.

[38]        
Dr. Purtzki’s diagnosis was that the plaintiff was suffering from
myofascial pain syndrome with secondary tension headaches.  This was mostly based
on symptoms the plaintiff was experiencing including diffuse pain over her
trapezius muscle, with myofascial trigger points and evidence of poor muscle
tone in her interscapular area.

[39]        
Dr. Purtzki noted that there were no rheumatological symptoms, nor
were there any neurological red flags.  She did not find a soft tissue disorder. 
She did note that the plaintiff, as a consequence of doing little exercise, was
in a deconditioned state.  I note that while the plaintiff was resident in Vancouver,
she took physical education classes and was active outside school.  No physical
education classes are offered at the plaintiff’s school in Florida.  The doctor
noted that the recommendations are for children to have 60 minutes of
vigorous exercise daily but that the plaintiff was not doing any significant
exercise at all.  In this regard, she wrote:

She would benefit from a regular
exercise program for core strength and this can be done under the supervision
of a kinesiologist at a physiotherapy clinic or at a gym that would allow for
her age group.  She enjoys swimming and I would highly recommend regular
swimming exercises.

[40]        
Dr. Purtzki thought overall that the prognosis for resolution of the
plaintiff’s neck pain and headaches was good if an exercise program was
initiated.  She did, however, recommend further investigation by means of an MRI
scan.  That scan was performed in Florida and the results were sent to Dr. Purtzki,
who then wrote an addendum report on May 28, 2012.

[41]        
The MRI had revealed a disc bulge in the plaintiff’s back, described as “minimal
bulging of the annulus at the L4-5 disc in the lumbar spine”.  Her neck and
upper back were normal.  Dr. Purtzki wrote:

The lower back pain may be
triggered by the disc bulge, indicating a disruption of the lumbar disc.  The
disc bulge could be related to a traumatic event, especially at her age. 
Conservative treatment with a general reconditioning program would be the first
line of treatment for Brandy.  She may have further symptoms as she undergoes
her maturation process into adulthood with further growth.

[42]        
Dr. Purtzki noted that the plaintiff’s neck pain would likely
improve with an exercise program.  She felt it important for the plaintiff to be
assessed for possible psychological distress and anxiety in the delayed recovery,
and wrote that “physical rehabilitation in conjunction with counselling and
pain-coping strategies are highly recommended”.

[43]        
She also wrote that:

… anxiety [which is suffered by
Brandy] can be heightened or triggered by traumatic events such an motor
vehicle accident.  I think psychological support or referral to a complex pain
clinic available to B.C. Children’s Hospital might be helpful.

[44]        
It is important to note, however, that the earlier review of the
plaintiff’s anxiety concluded it was not connected to the motor vehicle
accident and was believed instead to be the result of social stessors,
including social and family matters.

[45]        
Dr. Purtzki concluded that the plaintiff’s prognosis was that:

She would be at increased risk of
experiencing painful conditions with any re‑injury, both for physical and
psychological reasons.  I think she is at increased risk for disc herniation in
the future with re-injury or heavy lifting activities.

[46]        
Dr. Purtzki also noted that “the lumbar disc bulge predisposes her
to further disc disease/pain and possibly frank disc herniation in the future”.

7.              
CREDIBILITY AND RELIABILITY OF EVIDENCE

[47]        
At the hearing of this matter, counsel for the defendants conceded that
credibility is not in issue.  It was submitted that the Court could take into
account reliability.  The submissions were not that the plaintiff or her mother
were endeavouring to deceive the Court, but rather, given the long passage of
time and especially the long passage of time with no medical treatment, that the
plaintiff and her mother are mistaken.

[48]        
I do not find that the plaintiff or her mother are mistaken.  I accept the
plaintiff’s account of events and her description of her symptoms.  I am mindful,
however, of the long gap with no medical treatment.  To the extent any symptoms
would be such that a normal person would seek out medical treatment and such
medical treatment was not sought out is a factor this Court can take that
matter into account.  If the account is not convincing, this can impact on any
hypothesis upon which an expert option rests: Samuel v Chrysler Credit
Canada Ltd., 2007 BCCA 431.

8.              
LIABILITY

[49]        
Liability for the accident, as noted, is admitted.  The remaining issue
is the assessment of non-pecuniary damages.

9.              
CAUSATION

[50]        
The plaintiff must prove that the ongoing pain and suffering were caused
by the 2005 accident.  On a balance of probabilities, did the defendant driver Mr. Hesse’s
negligence cause the infant plaintiff’s injuries?:  see Athey v. Leonati,
[1996] 3 S.C.R. 458 and Clements v. Clements, 2012 SCC 32.  The question
is “but for” the action of the defendant driver, would the infant plaintiff be
injured?

[51]        
While the plaintiff had been in an earlier accident in 1999 when she was
three years old, I find that she had made a full recovery from that accident
prior to the accident in February 2005.

[52]        
Dr. Barton expressed the opinion that the motor vehicle accident of
February 26, 2005, caused the plaintiff’s current and ongoing symptoms as outlined
earlier in this judgment.  She noted that there was a gap in follow-up and
consequently that when the plaintiff complained of neck pain, it could be due
to other causes.  She wrote:  “She may have suffered a flaring up of these
symptoms with the lack of ongoing exercise, conditioning, as well as onset of
the scoliosis and growth spurt.”  It is of note this report pre-dates the MRI
findings.

[53]        
Dr. Purtzki was asked to assess whether, on the balance of
probabilities, the plaintiff’s injuries were a consequence of the motor vehicle
accident.  She wrote in connection with the lumbar disc bulge:

Bulging discs and disc disease
are relatively uncommon in children, and are generally thought to be related to
a traumatic event.  Since there was no other significant trauma, I think it
quite likely that the MVA triggered the disc bulge.

[54]        
I find, on a balance of probabilities, that Dr. Purtzki’s report
attributes the disc bulge and the lower back pain to the motor vehicle accident
of February 2005.

[55]        
She also wrote that the disc bulge pre-disposed the plaintiff to future
disc disease or disc pain and “possibly a frank disc herniation”.

[56]        
While the plaintiff will continue to experience neck and back symptoms, Dr. Purtzki
believed the intensity of the pain may diminish over the next few years. 
Massage therapy and an exercise program were recommended by Dr. Purtzki.

[57]        
I find that the ongoing headaches suffered by the plaintiff are too
tenuously related to the 2005 motor vehicle accident and, insofar as the
anxiety exists, that it is causally unrelated to the motor vehicle accident.  I
do find, however, that the plaintiff would benefit from the activation of a
program of exercise, as well as some counselling in that regard.

[58]        
In assessing claims of psychological injury, the British Columbia Court
of Appeal held in Yoshikawa v. Yu (1996), 21 BCLR (3d) 318, that the
plaintiff  must prove inter alia, on a balance of probabilities that the
“psychological problems have their cause in the defendant’s negligence”.

[59]        
I find that the plaintiff has not proved beyond a balance of
probabilities that her anxiety was causally related to the accident.  I find
her anxiety, however, has been exacerbated by the accident.  Writing on
May 28, 2012, Dr. Purtzki opined that anxiety could be heightened by
the accident.  Dr. Purtzki believed the anxiety could play a role in the
delayed recovery, she wrote “[t]herefore, physical rehabilitation in
conjunction with counseling and pain coping strategies are highly recommended.” 
Dr. Purtzki also noted:

… she would be at increased
risk of experiencing painful conditions with any re-injury both for physical
and psychological reasons.  I think she is at increased risk for disc
herniation in the future with re-injury or heavy lifting activities.

10.          
CASE LAW – NON-PECUNIARY DAMAGES

[60]        
The plaintiff and the defendants argued the same case law in support of
their position on the amount of non-pecuniary damages as had been argued in the
case of the plaintiff’s sister (see Vancouver Registry No. M102388).

[61]        
As noted, the plaintiff continues to report low back pain and headaches. 
Dr. Purtzki links this to the objective finding on the MRI imaging noting
a disc bulge in her spine.

[62]        
Factors for the Court to consider in any assessment of non-pecuniary
damages include, as noted by the British Columbia Court of Appeal in Boyd v.
Harris, 2004 BCCA 146:

·      
age

·      
nature of the injury

·      
severity and duration of pain

·      
disability

·      
emotional suffering

·      
loss or impairment of life

[63]        
In Stapley v. Hesjet, 2006 BCCA 34, the B.C. Court of Appeal
added to the list of factors:

·      
impairment of family, marital and
social relationships

·      
impairment of mental and physical
abilities

·      
loss of lifestyle

·      
stoicism is not used as a penalty

(See also Giang v. Clayton, 2005 BCCA 54, and Hoang
v. Smith Industries Ltd., 2009 BCSC 275.)

[64]        
I find that the plaintiff has a disc bulge which continues to cause her
low back pain and which leaves her susceptible to future injury.  She has been
stoical in continuing with all her school physical activities.  She has,
however, not engaged in any real sporting activity since her move to Florida in
July 2010.  She has not sought out any medical attention and there are no
reports from any treating physicians in Florida.  There is, however, no
evidence of any other intervening accident or event to which the plaintiff’s
injury is attributable.

[65]        
I accept the evidence of the plaintiff’s mother that she had difficulty
paying for treatments when they were resident in Vancouver.  I also accept she
did not have time to take the plaintiff to the doctor when there was nothing
more that could be done.  In that regard I note the comment of Kirkpatrick J.
in Edmonson v. Payer, 2012 BCCA 114:

… the defendant’s essential argument at trial was that the
absence of reports of accident related symptoms in the clinical records and Ms. Edmondson’s
failure to explain the 31 month gap in reported symptoms undermined the
reliability of her claim to ongoing injury in the context of her objective
capacity to work full-time and participate in physical activities at a high
level.  The judge discussed at length the principles governing the admissibility
and use of clinical records.  [Mr. Justice Smith] stated further, at paras. 36-37:

[36]  While the content of a
clinical record may be evidence for some purposes, the absence of a record is
not, in itself, evidence of anything.  For example, the absence of reference to
a symptom in a doctor’s notes of a particular visit cannot be the sole basis
for any inference about the existence or non-existence of that symptom.  At
most, it indicates only that it was not the focus of discussion on that
occasion.

[37]  The same applies to a
complete absence of a clinical record.  Except in severe or catastrophic cases,
the injury at issue is not the only thing of consequence in the plaintiff’s
life.  There certainly may be cases where a plaintiff’s description of his or
her symptoms is clearly inconsistent with a failure to seek medical attention,
permitting the court to draw adverse conclusions about the plaintiff’s
credibility.  But a plaintiff whose condition neither deteriorates nor improves
is not obliged to constantly bother busy doctors with reports that nothing has
changed, particularly if the plaintiff has no reason to expect the doctors will
be able to offer any new or different treatment.  Similarly, a plaintiff who
seeks medical attention for unrelated conditions is not obliged to recount the
history of the accident and resulting injury to a doctor who is not being asked
to treat that injury and has no reason to be interested in it.

(at para. 17)

[66]        
Accordingly, it cannot be said that the absence of clinical records in
all cases means there was no injury or only a very mild one.

11.          
QUANTUM OF NON-PECUNIARY DAMAGES

[67]        
The plaintiff seeks non-pecuniary damages in the amount of $50,000, and
relies upon a number of cases.

[68]        
Henri v. Seo, 2009 BCSC 76.  Ms. Henri was a grade 11
student.  She was involved in a motor vehicle accident and sustained soft
tissue injuries to her back and neck, as well as headaches.  The Court awarded
non-pecuniary damages of $50,000, finding it likely that the plaintiff would suffer
intermittent headaches, neck pain and back pain indefinitely.

[69]        
I find the Henri case distinguishable.  In that case the
plaintiff had great difficulty with the physical demands of school, and unlike the
plaintiff, missed school as a consequence of the accident.  The plaintiff, in
contrast, has indicated that she does not feel that the injuries have impacted
on her ability to perform in school.

[70]        
I similarly find that the plaintiff’s injuries and the circumstances are
distinguishable from the cases in Hmaied v. Wilkinson, 2010 BCSC 1075; and
Araki v. Guitard, 2012 BCSC 165 also relied on.  In Hmaied, the
infant plaintiff was struck by a car and had a diagnosis of post-concussion
syndrome as well as other injuries.  In Araki, the court noted the
“substantial body of medical and related evidence”  She as well had, unlike the
plaintiff, been unable to continue her activities.  The plaintiff had,
immediately after her accident and until she moved to Florida, been very
active.

[71]        
The defendants submit an award of $5,000 to $10,000 would be suitable.  I do
not find the cases cited by the defendants to be applicable in the
circumstances as the injuries were not akin to that found by the doctors in
this case.

[72]        
In Khangura v. Zhang, 2007 BCSC 1289 [Khangura], the court
assessed damages for a soft tissue injury.

[73]        
The plaintiff’s injuries in Khangura consisted of pain and
stiffness in the neck, shoulders and lower back.  In the year following the
accident, the injuries had substantially healed except the plaintiff had lingering
lower back pain, which his doctor indicated could go on indefinitely. 
Mr. Justice Rice awarded $26,000 in non-pecuniary damages.

[74]        
In Hoang noted above, the plaintiff was awarded $19,000 in
damages for the soft tissue injury to the neck and back where the neck pain and
headaches persisted three years after the accident.

[75]        
Also of note is the decision in Lee v. Hawari, 2009 BCSC 1904, in
circumstances where the plaintiff continued to suffer symptoms from her soft
tissue injuries more than 2-1/2 years after the accident and continued to
trial, although the prognosis was that she would fully recover.  Adair J.
awarded $21,000 in non-pecuniary damages.

[76]        
In Currie v. McKinnon, 2012 BCSC 698, the court awarded $22,000
in circumstances where the plaintiff had been diagnosed with a Grade 1
soft tissue but did not recover sufficiently to return to any leisure activities
some 10 months following the injury.  The plaintiff had complained at
trial of ongoing pain.  The court did not find the complaints to be all causally
linked to the accident.

[77]        
I find that in all the circumstances an appropriate award would be $22,000
in non-pecuniary damages.

12.          
COSTS OF FUTURE CARE

[78]        
The plaintiff is entitled to be put in the same position as she was
pre-accident.  The cost of future care must enable her, as best as possible, to
return to her pre-accident condition.

[79]        
Any award must be based on the accepted medical evidence of what is
reasonably necessary to aid the plaintiff to recover.  See Milina v. Bartsch
(1985), 49 BCLR (2d) 33 (SC); Williams (Guardian at litem of) v. Low,
[2000] BCJ No. 408 (SC); Spehar (Guardian ad litem of) v. Beazley,
[2002] BCJ No. 1718 (SC).  It is an objective test based on the evidence. 
The award must be medically justified, reasonable, and likely to be incurred by
the plaintiff.  If the plaintiff has not used a service in the past it may not
properly be the subject of an award:  see Izony v. Weidlich, 2006 BCSC
1315.

[80]        
I am also mindful of the Supreme Court of Canada’s guidance in Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9, that an assessment of damages
for the costs of future care is not a precise accounting.

[81]        
Both Dr. Barton and Dr. Purtzki recommend that the plaintiff
become physically active.  Dr. Purtzki had recommended an activation
program and supporting psychological counselling to cope with pain and to facilitate
the plaintiff’s progress in once again becoming physically active.  I am not
satisfied that there is a need for complicated assessments of the plaintiff,
given the lack of pursuit of any further medical testing, rehabilitation or
follow-up.  I do, however, find that the plaintiff would benefit from some
counselling sessions to be done in conjunction with her reactivation program. 
There was some evidence from Ana Flores.  Ana Flores is an occupational
therapist who prepared a report of the costs of all the recommendations and
suggestions of Dr. Barton and Dr. Purtzki, including chiropractic
treatments, massage therapy and counselling costs.

[82]        
The plaintiff now lives in West Palm Beach, Florida.  I find that Ana
Flores’s report is helpful only insofar as it gives a very rough baseline and
some evidence of the cost of certain modalities of treatment in Canada.

[83]        
In the circumstances, based on the limited evidence, I award the
plaintiff $5,000 for the cost of an activation program and preliminary
counselling.

13.          
SPECIAL DAMAGES

[84]        
I award the plaintiff $359.53 in special damages.

[85]        
In summary the award for the plaintiff is:

[86]        
In the event that counsel is unable to reach an agreement respecting
costs, counsel may within 30 days of the release of this judgment, speak to
costs by advising the Registry.

____________ “Maisonville J.”_____________
Maisonville J.