IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120921

Docket: M119616

Registry:
New Westminster

Between:

Elizabeth
Mayervich

Plaintiff

And:

Farshad
Sadeghipour and Hatav Rostami

Defendants

Before: The Honourable Mr. Justice
Grauer

Oral Reasons for Judgment

Introduction

[1]            
THE COURT: This is an assessment of damages sustained by Betty
Mayervich as the result of a motor vehicle collision that occurred on May 17,
2007.  Liability for that collision has been admitted on behalf of the
defendants.  At issue is the nature, extent, and effect of Mrs. Mayervich’s
injuries.

Background

[2]            
Mrs. Mayervich is 72 years old and has been married to her husband,
Allan, for just over 50 years.  They live in Port Coquitlam.  They have three
grown children and six grandchildren.  She retired from her employment with the
Hudson’s Bay Company when she was 55.

[3]            
The accident occurred when Mrs. Mayervich was struck from behind
after she had come to a stop in a line of traffic at a red light.  The impact
pushed her vehicle forward five or six feet into the car in front of her,
causing her airbag to deploy.  Mrs. Mayervich was holding onto her
steering wheel at the moment of impact.  She perceived a blow from behind that
caused her to move backwards and then forwards in her car, followed by an
explosion.  That was the airbag deploying.  Mrs. Mayervich briefly lost
consciousness.  When she came to, she thought that the car was on fire because
of what appeared to be smoke.  Her glasses had been knocked off her face, which,
in her state of panic, she did not realize until she had managed to get herself
and her granddaughter out of the car.

[4]            
Photographs taken the next day demonstrate injuries to the face in the
form of a scrape and contusion to Mrs. Mayervich’s upper lip and swelling
of her nose, significant bruising to the inner aspects of both arms —
particularly the left — and bruising to her abdomen.  There was also bruising
to her chest.  Mrs. Mayervich went on to develop significant and what has
proved to be chronic pain in the neck and mid-back regions accompanied by
depression.  It is not disputed that these injuries were caused by the
collision.

[5]            
The issues arising with respect to the aspect of Mrs. Mayervich’s
injuries consisting of chronic pain and back pain and depression concern the
extent of disability attributable to them as opposed to other processes including
age, and the potential for improvement with appropriate treatment.  In
addition, the defence argues that she failed to mitigate the consequences of
these injuries by not starting to take anti-depressant medication until some
seven-and-a-half months after it was first recommended.

[6]            
Mrs. Mayervich also went on to develop breathing problems due to a
deviated septum that was corrected by surgical treatment, and bilateral carpal
tunnel syndrome which was also resolved by surgical intervention.  She
maintains that these conditions were the result of the documented trauma to her
arms and face caused by the impact and by the airbag deployment in the
collision.  The defendants accept that Mrs. Mayervich sustained injuries
to her face and forearms in the accident, but say that these resolved and that
the deviated septum and carpal tunnel syndrome are unrelated to them.

[7]            
Finally, Mrs. Mayervich complains of reduced cognitive functioning
since the accident, particularly in terms of memory impairment.  The defendants
dispute that these difficulties, to the extent they exist, have any causal
relationship to the collision.

[8]            
I will now review the evidence concerning these conditions.

Chronic Neck and Back Pain, Depression, and Cognitive Dysfunction

[9]            
Mrs. Mayervich testified that her neck and back started hurting
significantly about two days after the accident.  It was painful for her just
to hold her head up, and she suffered throbbing pain at the base of her skull,
headache, and throbbing across the middle of her back.  This pain worsened over
the next couple of months and by six months after the accident continued to be
significant on a constant basis.  Physiotherapy helped, but not to the point of
allowing normal activity.  As a result, by a year after the accident the pain
in her neck and back was less unbearable, but still significant.  Little has
changed since.

[10]        
Mrs. Mayervich testified that she is never pain-free in her neck
except for brief periods when she is lying down with her neck supported by a
pillow.  Her back is less problematic if she is inactive, but she pays a price
if she does anything.

[11]        
Mrs. Mayervich described her mood problems, her feelings of
helplessness and frustration, increased irritability and anger, and memory and
concentration lapses.  These were confirmed by her husband and daughters, all
of whom found Mrs. Mayervich to have changed significantly in terms of her
personality and cognitive functioning since the accident.

[12]        
Mrs. Mayervich was initially treated by her family physician, Dr. Peter
Shih.  He referred her to Dr. Andrew Dawson, a specialist in physical
medicine and rehabilitation, whom Mrs. Mayervich saw on December 18,
2008.  She was seen for ongoing neck, shoulder, and upper back pain.  Dr. Dawson
diagnosed chronic myofascial pain with a significant mood or affect component
that he attributed to the motor vehicle accident.  His opinion was that with
appropriate treatment and an active slowly progressive stretching and
strengthening program as well as ongoing support for her mood changes, she was
likely to show ongoing progressive recovery.  He nevertheless noted the
possibility that she would be left with some lingering myofascial-like symptoms. 
His recommendations included an SNRI (serotonin neorepinephrine reuptake
inhibitor) medication, a form of anti-depressant medication that in his
experience is more beneficial for patients in pain than an SSRI (selective
serotonin reuptake inhibitor).

[13]        
The first anti-depressant medication that Mrs. Mayervich took was
an SSRI, Cipralex, that was prescribed by Dr. Shih in August of 2009.

[14]        
In his report dated April 24, 2010, Dr. Shih expressed the
view that Mrs. Mayervich would eventually recover fully from her
myofascial pain, but could not predict how long this would take.  By the time
of his later report dated May 24, 2012, his view that she would recover
fully had been downgraded from an opinion to a hope, now considered unlikely in
view of the chronicity of her conditions.  He felt that she would benefit from
a focused exercise program supervised by a kinesiologist in order to maximize
her functional recovery.

[15]        
An expert report was admitted into evidence from Dr. Raymond
Ancill, a psychiatrist with a special interest in trauma, to whom Mrs. Mayervich
was referred by her family physician.  The defendants did not require Dr. Ancill
to be produced for cross-examination on his report.  Dr. Ancill began
seeing Mrs. Mayervich in January of 2011.

[16]        
Among other things, Dr. Ancill continued the Cipralex originally
prescribed by Dr. Shih and twice increased the dosage.

[17]        
Dr. Ancill was of the view that Mrs. Mayervich may have
suffered a mild concussion in the accident but does not suffer from
post-concussion syndrome or the residual effects of any mild traumatic brain
injury.  He also stated that she does not have a dementing disorder to account
for her post-accident cognitive complaints.  This is because dementia would
lead to a progressive worsening over time whereas Mrs. Mayervich’s
cognitive complaints have lessened somewhat as first her depression remitted,
and later as her pain improved.

[18]        
He noted that Mrs. Mayervich developed a major depressive episode
which he treated with an anti-depressant.  He felt that she was currently in
partial remission and was close to full remission.  In the meantime, it was his
opinion that she suffers from chronic pain which frequently co-exists with
clinical depression.  In her case the pain arose directly from the accident
with the depression arising later.  But for the accident it was his view that
she would not have become depressed and would not have had chronic pain.  He
observed that she remains partially disabled.

[19]        
Dr. Allan Posthuma saw Mrs. Mayervich for a neuropsychological
assessment in May of 2011 and also submitted a report.  He was not required to
attend for cross-examination and I find his opinion to be persuasive.  He
stated that his test results were counter-indicative of a brain related problem
whether arising from the motor vehicle accident or resulting from a disease
such as Alzheimer’s.  The testing did indicate, however, difficulties in
concentration and memory that are significant for her, and it was his view that
they were more probably a function of emotional and pain-related problems.  As
he explained it:

As previously indicated the validity measures of the MMPI-2 RF
indicate that Mrs. Mayervich’s responses are likely to be a reliable and
valid indication of her emotional functioning.  She is likely to be very
self-critical and guilt prone.  She is likely to be stress reactive and prone
to both worry and anger.  She is likely to have a low tolerance for frustration
and low threshold for irritability.  She is likely to obsess about her
perceived problems.  She complains of specific problems with headache and other
pain but testing indicates that she is likely to react to emotional stress
through somatic complaints rather than identify the source of the problem as
emotional.

These results are fairly consistent with how she presents in
an interview and with the observations of her husband.  What the results
indicate is that any successful treatment will have to address both her somatic
and emotional functioning.  Fortunately, Mrs. Mayervich sees herself as
someone who has overcome and coped with considerable adversity in her childhood
and managed a successful active life up to the time of her motor vehicle
accident in 2007.  That is, a successful therapeutic endeavor is likely if it
can tap into these earlier coping skills. 
…

Although Mrs. Mayervich does
complain of cognitive difficulties, and particular, significant memory problems,
the neuropsychological test results would indicate that this is likely a
function of her emotional problems, mainly anxiety and lack of confidence in
her abilities, as well as the effects of pain and the medication for pain. 
This would be a common complaint with other chronic pain patients and something
that a chronic pain clinic would be able to address.

[20]        
Dr. Posthuma concluded that Mrs. Mayervich has a chronic pain
problem that is interfering with both her emotional and cognitive functioning. 
He felt that she would likely benefit from both a chronic pain program and
working with a trainer who has specialized knowledge in her particular medical
condition and who would assist her in building up her tolerance level and
enjoyment of her previous avocational interests.  In his view, the most
appropriate chronic pain program for Mrs. Mayervich would be an intensive
daily one-month program which would also involve her spouse.  In the absence of
such a program, he felt that her problems would continue to be chronic and
likely exacerbate over time.

[21]        
At the request of the defendants, Mrs. Mayervich was seen by Dr. Thomas
Goetz, a specialist in orthopaedic surgery with a special interest in trauma,
upper extremity, and micro-vascular surgery.  On the question of her neck and
back pain, Dr. Goetz thought the prognosis was "poor and likely to be
static at present and not likely to improve greatly with time".  He noted
that her psychological problems had obviously caused her significant disability
and deferred to a psychiatrist with respect to the actual diagnosis and
prognosis.

[22]        
On the basis of the evidence of Mrs. Mayervich, whom I found to be
a very credible, though not inerrant, witness, and the expert evidence, I am
satisfied that the motor vehicle collision in question has left Mrs. Mayervich
suffering from a condition of chronic myofascial pain in her neck and back that
continues to cause significant disability.  I am also satisfied that as a
result of the injuries caused by the accident and bound up with the ensuing
pain and emotional consequences, Mrs. Mayervich has suffered and continues
to suffer a major depressive episode and cognitive difficulties including
difficulty in concentration and loss of memory.  On the basis of the evidence
of Dr. Ancill and the testing of Dr. Posthuma, I am satisfied that
these cognitive difficulties are due neither to any brain injury nor to any
process of dementia or normal aging.

[23]        
Mrs. Mayervich’s daughters, both of whom were credible witnesses,
testified about the severity of her personality change and the extent of her
cognitive problems.  They described how she was unfocused, prone to significant
memory lapses and non-sequiturs, and lacking in the coherent and organized
patterns of thought which were typical before the accident.  They have not observed
any improvement over the last year or two.  Mr. Mayervich observed some
improvement when her medication was increased but only to a limited degree.  On
the other hand, I did not observe any lack of coherence, focus, or clarity in
her evidence when she testified, and her physician and her psychiatrist both
observed improvement.  This apparent disparity is, in my view, consistent with Dr. Posthuma’s
findings and opinions particularly concerning the change in Mrs. Mayervich’s
cognitive functioning when she is not in pain and is not threatened or anxious
about her performance.

[24]        
It follows that I accept Dr. Posthuma’s opinion, supported by that
of Dr. Dawson, that there is a real potential for improvement through
appropriate programs which I find would include an intensive daily one month
chronic pain program that would also involve Mr. Mayervich, followed (to
the extent recommended by the chronic pain program) by an ongoing and focused
exercise program supervised and directed by a person with the appropriate
expertise.

[25]        
These programs should also help bring Mrs. Mayervich’s depression
from a state of partial remission to a state of full remission as discussed by Dr. Ancill. 
I also find, however, that there remains a real and significant possibility
that such treatment will not be entirely successful and that Mrs. Mayervich
will be left in a chronic state of pain and accompanying depression as
discussed by several experts including Dr. Goetz.

Thoracic and Abdominal Injuries

[26]        
These caused Mrs. Mayervich real discomfort following the accident
and have since resolved.  The abdominal injuries causing recurring abdominal
pain resolved by late 2007.

Injuries to the Arm and Hands and Bilateral Carpal Tunnel Syndrome

[27]        
It is not disputed that Mrs. Mayervich suffered significant
contusions to the interior aspects of both arms caused by the impact of the
airbag while she was holding onto the steering wheel.  The principal issue is
whether this impact, together with the initial rear end impact, also caused the
bilateral carpal tunnel syndrome with which she was later diagnosed and for
which she was successfully treated surgically.

[28]        
The test to be applied for causation is the "but for" test. 
But for this accident, would Mrs. Mayervich have developed the bilateral
carpal tunnel syndrome diagnosed in July of 2008?  As the Supreme Court of
Canada was at pains to remind me in its most recent revelation of the law in
this area, the "but for" causation test must be applied in a robust
common sense fashion, and it is an error to insist on scientific precision in
the evidence as a condition of finding but for causation: Clements v.
Clements, 2012 SCC 32 at paras. 10 and 49.

[29]        
The principal hurdle to connecting the obvious trauma caused to Mrs. Mayervich’s
arms and hands in the accident to the subsequently diagnosed carpal tunnel
syndrome is the question of the timing of its onset.

[30]        
According to Dr. Shih, it was in July of 2008 when Mrs. Mayervich
developed an acute onset of numbness and pain in both her hands.  He noted no
such complaints before this time.  Dr. Shih requisitioned nerve conduction
studies.  These tests revealed severe bilateral carpal tunnel syndrome, worse
on the left than the right.  He referred her to a hand surgeon, Dr. Perey,
who performed a right carpal tunnel release on November 18, 2008 and a left
carpal tunnel release on December 2, 2008.

[31]        
According to Dr. Goetz, review of the literature does not suggest
that motor vehicle accidents are associated with delayed onset of carpal tunnel
syndrome but does suggest that carpal tunnel syndrome is associated with
hypothyroidism, a condition which Mrs. Mayervich has exhibited for many
years.  On the basis that the onset of Mrs. Mayervich’s carpal tunnel
symptoms did not occur until more than a year after the accident, Dr. Goetz
expressed the opinion that the symptoms were not related whatsoever to the
motor vehicle accident.  While he accepted that motor vehicle accidents can
cause carpal tunnel syndrome, it was his understanding that the symptoms would
most commonly present within a week of the trauma.  Onset following an accident
may be delayed, but a delay of this magnitude would in his view be unexpected
and exceedingly unusual.

[32]        
Dr. Oxley, a specialist in plastic and reconstructive surgery who
focuses on trauma and cancer reconstruction, and who has treated many patients
for carpal tunnel syndrome, thought that Mrs. Mayervich’s bilateral carpal
tunnel syndrome did have a temporal etiology related to the motor vehicle
accident.  Given that the nerve studies conducted in July of 2008 showed a
severe carpal tunnel syndrome, he noted that there was no evidence of any additional
acute injury that could explain the onset of so severe a condition.  He
concluded that her symptoms had simply reached a point where they were no
longer tolerable, hence the acute appearance of the presentation.  He
accordingly believed that the accident was the causative factor.

[33]        
According to Mrs. Mayervich, the symptoms including tingling in her
fingers and weakness in her hands had been bothering her for quite some time
before July of 2008.  The problem that arose in the summer of 2008 was an inability
to grasp a handlebar of a bicycle and increased pain, tingling, and numbness. 
She agreed that she did not complain of these symptoms before but maintained
that this was because of all her other problems, not because they did not
exist.

[34]        
Weighing all of the evidence and applying the "but for" test
in a robust common sense fashion, I conclude on a balance of probabilities that
the motor vehicle accident was indeed the causative factor and I prefer the
opinion of Dr. Oxley to that of Dr. Goetz in this regard.

[35]        
I note that Dr. Oxley’s opinion was based on his considerable
experience with patients with the same condition, whereas Dr. Goetz based
his opinion essentially on a review of literature as to the authoritativeness
of which he was somewhat ambivalent.  Moreover, Dr. Oxley’s opinion is
supported by the common sense of the situation including the following factors:

·                
as a result of the accident it was clear that Mrs. Mayervich
suffered traumatic injury to her arms, and the mechanics of the accident were
of a kind commonly associated with the development of carpal tunnel syndrome;

·                
when the nerve conduction studies were conducted in July of 2008,
they demonstrated severe carpal tunnel syndrome, suggesting a process that had
been developing over a period of time, not one that had suddenly manifested
itself without any associated trauma consistent, with Dr. Oxley’s
opinion.  I reject the defence contention that given her memory lapses, Mrs. Mayervich
may simply have forgotten a recent undocumented trauma that could have caused
the symptoms to develop acutely in July of 2008, or that the bicycle trip that
month was the cause.  Nothing in the evidence supports either proposition;

·                
the conduction studies demonstrated that the carpal tunnel
syndrome was worse on the left than on the right, consistent with the bruising
injuries suffered by Mrs. Mayervich in the accident which were clearly
worse on the left than on the right;

·                
There is no evidence of any carpal tunnel syndrome-like problem
of any kind before the accident;

·                
There is no evidence of any other cause of the carpal tunnel
syndrome.  Although Dr. Goetz noted an association in the literature
between hypothyroidism among other things and carpal tunnel syndrome, neither
he nor any other expert opined that in Mrs. Mayervich’s case, her
long-standing hypothyroidism was what caused her carpal tunnel syndrome;

·                
In any event, I accept Mrs. Mayervich’s evidence concerning
symptoms occurring before July of 2008.  Other aspects of her injuries were
dominating her attention.  Her evidence was also supported by that of her
husband who had to cut her meat for her, and who described her inability to
grasp the steering wheel of her car requiring him to drive her well before July
of 2008.  Accordingly, I find that a delay in onset of symptoms for more than a
year, on which Dr. Goetz founded his opinion, is not what happened.

Deviated Septum

[36]        
On my view of the evidence there is no reasonable explanation for this
injury other than the blow sustained by Mrs. Mayervich to her face when
the airbag deployed in the collision.  The defence points to the delay from the
time of the accident to when the deviated septum was treated, arguing that I
should infer from this that the accident did not cause the injury and that if
it had, there would have been more serious symptoms at the time.  This was
unsupported by any expert opinion evidence.  Moreover, Dr. Shih indicated
in his report that Mrs. Mayervich complained of "persistent nasal
blockage since her MVA" on August 17, 2007.  He did not doubt that
her "contused nose with deviated nasal septum" resulted from the
accident and he was not cross-examined on that point.

[37]        
Dr. Oxley also had no doubt that the deviated septum was the result
of the airbag deployment in the accident and he, too, was not cross-examined on
that aspect of his opinion.  No contrary opinion was offered by the defence.

[38]        
I accept the opinion evidence of Dr. Shih and Dr. Oxley and
moreover I accept the evidence of Mrs. Mayervich that clearly links her breathing
problem as reported in August of 2007 to the accident.  It is a matter of
common sense.  Indeed, given the state of the evidence, I find it astonishing
that the cause of her deviated septum was contested.

Impact of Injuries to Date

[39]        
Mrs. Mayervich has had a very difficult five years.  Progress has
been limited and to the extent it has occurred, very slow.  All aspects of her
life have been affected.  Her injuries have had a significant impact on her
ability to participate in her pre-accident activities, particularly interaction
with her grandchildren, golf, bowling, cooking and housekeeping and that impact
continues.  On the evidence, all of these activities were very important to Mrs. Mayervich
who by all accounts was a very active woman who took great delight in her
sports and her family.  In the reverse of the transformative process pursued by
alchemists, her golden years have turned to lead.

[40]        
Before the accident, Mr. and Mrs. Mayervich were avid golfers
and golf was one of her chief activities.  She attempted to keep it up after
the accident but found herself unable to continue.  It is not clear whether she
finally abandoned the sport in late 2010 or the summer of 2011.  It is clear,
however, that she was unable to play it to her previous level and that it
caused her considerable pain.  I say this notwithstanding the apparent
similarity in her golf handicap.  On her description, the effect of the
injuries on the manner in which she was able to play the game and the price she
had to pay for doing so is well established.

[41]        
She has continued with another of her activities, ten pin bowling, but
suffers exacerbated pain for doing so and has had to change her technique. 
Physical intimacy with her husband has been impossible since the accident because,
she testified, she can no longer participate.  Before the accident, her husband
noted, "it was good enough to keep me around for 50 years".

[42]        
Initially unable to perform any domestic chores, Mrs. Mayervich has
resumed some cooking and cleaning but still depends upon her husband and
daughters for assistance.  The family dinners she used to host and prepare are
now less frequent and require a good deal of work from the rest of the family.

[43]        
But what Mrs. Mayervich perhaps misses most is the interaction with
her grandchildren that she used to enjoy.  A softball pitcher herself when she
played the sport into her fifties, she was looking forward to coaching and
working with two of her granddaughters who have become pitchers as well.  She
cannot now do so.  Nor has she been able to lift her grandchildren or run
around with them as she used to.  The overnights she used to host for all her
six grandchildren have become much less frequent and now depend upon the older
grandchildren looking after the younger ones.  All of this has been very
frustrating to Mrs. Mayervich, compounding her depression and emotional
state, thereby impacting her cognitive function as described by Dr. Posthuma.

Impact of Injuries – Other Factors

[44]        
Not surprisingly, given that she is now her seventies, Mrs. Mayervich
has had to contend with physical problems other than those attributable to her
motor vehicle accident.  These are the inevitable indignities of aging, and
have included bursitis in the hip, tendonitis in the shoulders, pain in the
shoulders, low back pain, a fracture of the left wrist due to a fall in October
of 2011, and a ligamentous strain to the right knee, possibly a torn meniscus,
that occurred in April of 2012.

[45]        
These various injuries and conditions would all have had an impact on Mrs. Mayervich’s
activities.  In particular, I accept that her fractured wrist and probably the
hip and knee problems would have interfered with her ability to play golf, even
in the absence of her neck and back injuries.  Their effect, however, would on
the evidence have been temporary.  There is no evidence that any of them has
had any lasting impact.  Accordingly, I find that their effect would have been
of relatively short duration and not disabling.  It is a matter to be taken
into account but not of great consequence.

Impact of Injuries – The Future

[46]        
On the basis of the expert evidence, I find that Mrs. Mayervich
faces two possible scenarios.  First, with the benefit of appropriate treatment
programs, Mrs. Mayervich will experience real improvement in her level of
function and her depression and cognitive symptoms will largely resolve,
particularly with the continuation of medication.  No one, however, has
suggested that she will recover completely.

[47]        
The flip side of this scenario, and part of it, is that without the
benefit of appropriate treatment programs, Mrs. Mayervich is unlikely to
recover at all and may indeed get worse.

[48]        
As noted above, I accept this scenario as probable and I accordingly
accept Dr. Posthuma’s recommendations concerning the appropriate treatment
programs.

[49]        
 The second scenario is that even with appropriate treatment, recovery
will at best be limited.  As stated, I do not consider this second scenario to
be probable, but I find it to be a real possibility that must be taken into
account.

Mitigation

[50]        
Relying on Dr. Dawson’s opinion, based on his examination in
December of 2008, that with appropriate treatment Mrs. Mayervich would
show ongoing progressive recovery, the defendants argue that her failure to
commence the SNRI medication that he recommended at the time was a failure to
mitigate.  As noted, she did not start anti-depressant medication until Dr. Shih
prescribed an SSRI some seven-and-a-half months later.

[51]        
The onus, of course, is on the defendants to establish a failure to
mitigate, by which is meant a failure on the part of the plaintiff to take
reasonable steps to mitigate her losses.  That onus has not been met in this
case.  First, Dr. Dawson was not directly treating Mrs. Mayervich. 
He was a specialist to whom her family doctor had referred her and who,
accordingly, made such recommendations as he considered appropriate back to the
family physician.  It would then have been incumbent upon Dr. Shih to
treat Mrs. Mayervich in accordance with those recommendations or not. 
There is no evidence that Dr. Shih recommended to Mrs. Mayervich or
prescribed for her anti-depressant medication at that time.  Had he done so,
and had she refused to take it, then the defendants would have a point, but
that is not what the evidence shows.  Indeed when he did prescribe an
anti-depressant, it was not what Dr. Dawson recommended.

[52]        
Second, there is no evidence concerning what difference it would have
made to Mrs. Mayervich’s outcome had anti-depressant medication been
commenced several months earlier than it was.

[53]        
Accordingly, the plea of failure to mitigate fails.

Assessment

[54]        
At issue are non-pecuniary damages, future care costs, and special
damages.

1.              
Non-Pecuniary Damages

[55]        
Plaintiff’s counsel relies on a number of cases considering chronic pain
and depression situations to support his submission that an appropriate
non-pecuniary award would be $100,000.  These cases include Mohan v. Khan,
2012 BCSC 436 ($100,000), Roberts v. Scribner, 2009 BCSC 1761
($95,000), Rizzolo v. Brett, 2010 BCCA 398, 322 D.L.R. (4th) 633 ($125,000);
Poirier v. Aubrey, 2010 BCCA 266, 4 B.C.L.R. (5th) 173 ($100,000), Bergman
v. Standen, 2010 BCSC 1692 ($75,000), and Prince-Wright v. Copeman,
2005 BCSC 1306 ($100,000).

[56]        
Counsel for the defendants relied on three cases to support on his
submission that the appropriate range in this case is $30,000 to $45,000: Hsu
v. Williams, 2011 BCSC 1412 ($30,000), Amberiadis and Kiza v.
Groves, 2005 BCSC 1270 ($40,000 and $45,000), and Hadland v.
Thompson, 2002 BCSC 380 ($45,000).

[57]        
In my mind, the significant features of this case are these:

·                
As a result of the accident, Mrs. Mayervich suffered a
constellation of injuries, the most significant of which has been myofascial
injury in the neck and back resulting in a chronic pain condition accompanied
by a major depressive order and cognitive difficulties.

·                
Included the constellation were a deviated septum (broken nose),
and injuries to the arms and hands that culminated in bilateral carpal tunnel
syndrome.  Both of these conditions required surgical intervention and both
have resolved.  There was additional discomfort from injuries to the abdomen
and chest.

·                
These injuries have had a significant impact on Mrs. Mayervich’s
quality of life.  The myofascial injuries in particular continue to interfere
with her activities of daily living and recreation and have impaired her
ability to interact with her husband, her daughters, and her grandchildren.

·                
Mrs. Mayervich has already experienced nearly 5½ years of
physical pain, depression, emotional upheaval and cognitive difficulty as a
result of the accident.

·                
It is likely Mrs. Mayervich will experience real improvement
if she undertakes a program such as that recommended by Dr. Posthuma; full
recovery however is unlikely, and a real possibility remains that she will
experience no significant recovery.

[58]        
In my view, these features bring Mrs. Mayervich’s situation closer
to the cases cited by counsel by the plaintiff than those cited by counsel for
the defendants.  The award of $125,000 approved by the Court of Appeal in the Rizzolo
case was to a considerably younger man who had suffered debilitating chronic
pain affecting all aspects of his life but who had been able to return to his
pre-accident employment.  In Hsu, on the other hand, the most recent of
the three cases relied on by the defence where the award was $30,000, the
plaintiff suffered from chronic neck and back myofascial disorder but this was
an aggravation of pre-existing soft tissue conditions from a previous accident
that had already given rise to chronic pain.

[59]        
Each case must of course be decided upon its own facts.  Considering all
of the facts discussed above, I assess Mrs. Mayervich’s non-pecuniary
damages at $85,000.

2.              
Special Damages

[60]        
This claim consists of $934.24 for prescriptions, $820.83 in mileage
costs for attending medical appointments, and $1,611.90 for the cost of Advil. 
These total $3,366.97.

[61]        
The defendants suggest that the amount allowed for Advil should be
reduced to take into account the lower cost of generic or in-house brands of
ibuprofen.  There is, however, no evidence of the costs of these brands nor is there
any evidence to suggest that it is unreasonable for Mrs. Mayervich to take
Advil instead.  I make no reduction on that account.  I do, however, make a
reduction in the mileage expenses to take into account other errands run by Mrs. Mayervich
at the same time as some of the trips in question.  I allow special damages at
$3,000.  This award must be reduced to credit advances totalling $1,065,
leaving a claim of $1,935.

3.              
Future Care Costs

[62]        
These consist of the ongoing costs of Advil and Cipralex as well as the
cost of the treatment program recommended by Dr. Posthuma.

[63]        
With respect to the treatment program, the cost of two different
programs are in evidence, one by Lifemark at a total cost of $14,896, and one
by Orion at a total cost of $16,116.80.  Dr. Posthuma indicated that in
his view both are suitable, but he would recommend the Orion program as it is
fixed in duration and provides follow-up.  He considered both to be important
considerations in designing treatment programs; I agree.

[64]        
I also allow the ongoing cost of Advil and Cipralex for five further
years at an annual cost of $1,335.  In calculating this I rely on the receipt
that indicates a two-month supply of Cipralex costs $168.77.  Understandably,
given the principles of proportionality, neither side tendered expert actuarial
evidence concerning present values.  I therefore rely on Appendix E to CivJI,
of which I am an author, to obtain a present value of $6,027.66.

Conclusion

[65]        
I award Mrs. Mayervich damages as follows:

[66]        
The parties may make submissions as to costs.

[SUBMISSIONS
BY COUNSEL RE COSTS]

[67]        
THE COURT: Thank you.  You may have time to make submissions, Mr. Armitage,
but let me say just this, that Rule 9-1 provides a number of factors that
the Court must take into account before making an award.  Rule 9-1(5)(b)
allows the award of double costs after the date of delivery of an offer to
settle, but Rule 9-1(6) sets forth four matters which the Court must take
into account, so in that respect it is not a slam dunk, just because an offer
was made that happens to be below the amount awarded.  The Court must take into
account whether it was one that ought reasonably to have been accepted, the
relation between the terms of settlement offered and the final judgment, the
relative financial circumstances of the parties, and any other factor the Court
considers appropriate.

[68]        
Just in case it may assist you in formulating your position, it seems to
me that given that there were two significant experts, Dr. Posthuma and Dr. Ancill,
who were not required for cross-examination, and given that your own expert had
a pessimistic opinion concerning the back and neck injuries, it is arguable that
the plaintiff’s offer was one that ought reasonably to have been accepted,
which seems to me the only concern one would have a close look at in the
circumstances of this case.  But those are my preliminary views; I give them
because it might assist you in reaching an agreement in this matter.

[69]        
If you are unable to reach an agreement after you have had an
opportunity to look into it, you are welcome to make written submissions to
me.  All right?  So that will be all for today.  Thank you.

"GRAUER, J."