IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121122

Docket: 45079

Registry:
Kamloops

Between:

Christel
Lee Warner

Plaintiff

And

Stephen
Ward Cousins and
S.W. Cousins Construction Ltd.

Defendants

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

INTRODUCTION

[1]            
On January 13, 2009, the plaintiff, Christel Lee Warner, was driving her
car west on Columbia Street in Kamloops, British Columbia. At or near the
intersection of Columbia Street and 6^th Avenue, a small truck driven
by the defendant, Stephen Ward Cousins, and owned by the corporate defendant,
turned left in front of her causing her to collide with the passenger’s side of
the truck. Upon impact, the airbags in the plaintiff’s vehicle deployed. The plaintiff
was wearing a seatbelt, but she suffered injuries.

[2]            
The defendants accept responsibility for the accident. This trial is to
assess the plaintiff’s damages. The defendants do not deny that the plaintiff
was injured, but dispute the extent and the nature of those injuries as alleged
by the plaintiff.

[3]            
The plaintiff alleges that she suffered injuries to her lower and upper
back, chest, neck and shoulders. In addition, the plaintiff claims that her
pre-existing migraine headaches increased in frequency as a result of the
injuries she suffered. The plaintiff also alleges that as a result of the
accident, she developed chest discomfort, a racing heartbeat, and
post-traumatic stress disorder leading to depression.

[4]            
The plaintiff acknowledges that her chest injuries related to the
deployment of the airbags and the lower back injury relates to her recent
tailbone injury. These injuries resolved themselves in due course, but the
plaintiff alleges that the other injuries have not been resolved and that these
injuries have prevented her from pursuing her full-time occupation as a
licensed practical nurse (“LPN”) and pursuing a degree in nursing. The
plaintiff also alleges that these injuries prevent her from pursuing her
day-to-day activities and other pursuits.

Background

[5]            
At the time of the accident, the plaintiff worked as a LPN at the Royal
Inland Hospital (“RIH”). She has worked there since completing the LPN course
in the spring of 2007. Since November 2007, she has held a full-time, permanent
position on “Sixth South,” a surgical ward of RIH.

[6]            
The plaintiff was born July 31, 1980; she is 32 years of age. She
currently lives with her partner, Andrew Halverson, at his home. They have a
son who was born August 11, 2011. The plaintiff moved in with Mr. Halverson
after she became pregnant sometime in 2011.

[7]            
Mr. Halverson has two children, ages eight and two and a half years old,
who reside with Mr. Halverson and the plaintiff on a part-time basis.

[8]            
On the day of the accident, the plaintiff was on sick leave from RIH as
she had injured her tailbone on December 30, 2008 in a snowboarding accident. Due
to her injury, she anticipated being off work for four to six weeks.

[9]            
As a result of the motor vehicle accident, the plaintiff did not work
until March 8, 2010 (nearly 14 months after the accident).

[10]        
The plaintiff and her parents moved to Delta, British Columbia when the
plaintiff was in grade 5. The plaintiff graduated from high school in 1998. In
grades 10 and 11, her marks were not good. However, she markedly improved her
grades in grade 12 and, as a result, was placed on the honour role. On her
grade 12 report card, her teachers remarked on this improvement.

[11]        
Upon graduating from high school, she left her parents’ home and began
living with her boyfriend, James Neilson, with whom she resided for 12 years.
This relationship ended in July 2008. After that, the plaintiff had no further
contact with Mr. Neilson.

[12]        
In 2000, the plaintiff received a diploma in early childhood education from
Kwantlen College. She took over her mother’s daycare centre and operated it for
a period of two years. The plaintiff moved to Kamloops in 2003, and worked at
the Thompson Rivers University (“TRU”) daycare centre for three more years.

[13]        
In both her early childhood education and LPN courses, the plaintiff
attained very good marks.

[14]        
At the time of the accident, the plaintiff was living alone in a
basement suite. She remained in the basement suite until she moved in with Mr. Halverson.

Positions

Plaintiff

[15]        
The plaintiff claims the following amounts under several heads of
damage:

Defendant

[16]        
The defendants submit that the court should allow damages sought by the
plaintiff as follows:

[17]        
In addition, the defendants argue that these damages should be reduced
by 25% because the plaintiff failed to mitigate her damages.

The Plaintiff’s Evidence

Prior to the Accident

[18]        
The plaintiff described herself prior to the accident as a healthy
person, save that she occasionally suffered migraine headaches, which
affliction she says developed in her teenage years. She testified, however,
that she had not had any migraine headaches since starting work at RIH.

[19]        
At the time of the accident, the plaintiff had used up all of the sick
time allotted by RIH. That allotment is 1.5 days per month. In this trial, it
has also been referred to as 20 days per year.

[20]        
Also, at the time of the accident, the plaintiff was earning $23.75 per
hour. That hourly rate was increased to $24.76 on April 3, 2009 and to $25.50
on April 2, 2010. She also had a number of benefits, including a pension plan,
payment of the Medical Services Plan, an extended medical and dental plan, and disability
and life insurance. Further, the plaintiff received payment for statutory
holidays and other events, whether she worked or not.

[21]        
The plaintiff’s income tax returns disclose the plaintiff’s earnings for
the following years:

[22]        
Before the accident, she and another LPN provided care to eight patients
on the surgical ward of Sixth South. She was responsible for four of those
patients. The plaintiff testified that she worked rotations of three day shifts
and one night shift, followed by approximately four or five days off.

[23]        
The plaintiff testified that she participated in hunting, fishing, “quading,”
wakeboarding, skiing, swimming, hiking and running. She testified that she did
these activities with Mr. Neilson.

After the Accident

[24]        
At the scene of the accident, the plaintiff testified that she felt
chest and back pains which persisted after she was taken to the hospital. At
the hospital, the plaintiff was x-rayed, given an intravenous, and prescribed
medication. The medication prescribed was for pain and inflammation. She was
released from hospital that evening.

[25]        
The day following the accident, the plaintiff visited her family doctor,
Dr. Julie Anderson. The plaintiff testified that at that time, she was
suffering from pain and from spasms in the neck and shoulder blades. She was
also stiff. She testified that the drugs prescribed at the hospital were not
treating her pain. From this point until December 2010, she saw Dr. Anderson
once every two weeks for the injuries sustained in the motor vehicle accident.
The plaintiff testified that after the accident, her injuries were treated with
massage therapy, physiotherapy, and several rehabilitation programs.

[26]        
The plaintiff stated that for a period of about one month after the
accident she could do nothing for herself. Therefore, Mr. Halverson would visit
her suite to help her dress, cook for her, and check on her.

[27]        
Also, she testified that as a result of her injuries, she was unable to
carry her son in the way which she would have preferred. Further, as she would
often have to go to bed due to migraines, she could not always give her son the
attention that he needed.

[28]        
Furthermore, she testified that she became depressed. After the accident
and while living in the basement suite, she purchased a puppy and would take it
for walks. Although no date was identified as to when she purchased the puppy,
there is a reference to it when the plaintiff saw her physiotherapist, Janice
Fraser, on August 4, 2009. As a result of the accident, however, she withdrew
socially and isolated herself from her friends and was not otherwise able to
snowboard or wakeboard.

[29]        
With respect to her job at RIH, the plaintiff says that her injuries
continue to prevent her from fulfilling her duties as a LPN. She states that
she is now capable of only working part-time.

[30]        
The plaintiff testified that the accident had a profound effect on her
life as follows:

Q         Did your doctor explain anything to you at
this time?

A          In regards to the depression?

Q         Sure. Did she indicate anything to you about
the feelings you were having?

A          I remember we had a discussion about it. I
was suffering a — suffering from an adjustment type disorder.

Q         Is that something she said?

A          Yeah, I believe
so. Those weren’t her exact words possibly but, I mean, I suffered — I
suffered a pretty big loss. My life changed dramatically.

Education

[31]        
The plaintiff testified that she has a passion for nursing. It is her
calling. She realized this during the practicum for her LPN course. and it was
further reinforced when she completed the LPN course and began working at RIH.

[32]        
The plaintiff testified that she has always intended to pursue a
registered nursing degree. Her intention was to complete her LPN course, work
for a period of time to pay off her student loans, and then enter nursing
school. In order to finance her education, she planned to take out further
student loans and work as a LPN when nursing school classes were not in
session.

[33]        
In order to be eligible for the school of nursing at TRU, she was
required to complete two biology courses and two English courses, which she
believed would take her about a year to complete. She believed that as a LPN
she would be allowed to go directly into second-year nursing, as there were
seats reserved for LPNs who wished to pursue a degree in nursing.

[34]        
In August 2010, she obtained information from TRU’s School of Nursing
over the Internet.

[35]        
She enrolled in an online biology course. She had taken this particular
biology course previously in her LPN course, and she treated it as a review.
She did not complete the course for reasons she expressed as follows:

I found it really difficult to
study for long periods of time hunched over at a desk. I have trouble
concentrating because of the pain I was experiencing on my neck, shoulders,
upper back and because of the headaches I was getting so I was unable to
complete that.

Household Activities

[36]        
As already stated, the plaintiff’s evidence is that right after the
accident, she could not perform her household activities while living in her
basement suite and relied on Mr. Halverson to look after her for a period of a
month or so.

[37]        
There was no direct evidence from the plaintiff as to which household
activities she was not able to perform as a result of her injuries other than
as follows:

Q         Now, okay, Ms. Warner, previously in our
earlier questions I took you through your symptoms from essentially the time of
the motor vehicle accident to December 2009. We were en route to try and
complete a picture from the date of your return to work. As a result of the
motor vehicle accident, did you have any difficulties in that year following
the motor vehicle accident with activities of daily living?

A          I was unable to do any kind of physical
chores. Any housework, I wasn’t doing any, wasn’t able to, because of the pain
that I was experiencing in my shoulders and my neck. And of course my headaches
that were debilitating me.

 As far as extracurricular
activities I was unable to do any of the snowboarding or wakeboarding
activities, running.

 I wasn’t being very social
because I was experiencing a lot of pain with my injuries to my neck and
shoulders and upper back, so there was a time where I was just isolating myself
because I felt some depression, and I just — and things that my friends were
doing I couldn’t — I couldn’t enjoy when I was doing them — when they were
doing them, so …

Q         Did you have any issues, Ms. Warner, with
things like dressing?

A          The first while I — I had to have help to
get dressed. My boyfriend would help me get dressed, as well as undressed,
because of my limited mobility with my arms. He’d also help me do simple things
like cooking. The first — the first little while he would come and check on
me, make sure that I was getting — getting dressed in the morning, getting
washed, make sure I was eating.

Q         What would you do if he didn’t come in the
morning?

A          I would be in my pajamas, laying — laying
down. I just wouldn’t — I didn’t have the ability to — to do those things, so
I would just — I would sleep on and off, try and sleep on and off throughout
the day. And when he came, then that’s when he kind of made sure that I was
taken care of.

Q         Are you able to tell us how long that sort of
state lasted?

A          It was at least
the first — I can’t remember the exact. It was for sure the first month or so
after the accident. I gradually started to be able to do some things for
myself, such as making sure that I was eating, and cleaning, and — myself,
like having — getting in the shower and …

[38]        
At present, she says that she has difficulties carrying her son around,
and that Mr. Halverson helps her with activities relating to her son.

[39]        
She states she is able to dress herself, but she claims that she needed
to adapt the manner in which she dresses because she has difficulty putting her
hands over her head. She also has some difficulty vacuuming.

Employment

[40]        
The plaintiff remained away from her employment until March 8, 2010,
when she started a graduated return-to-work program designed by her doctor and
her employer. This program was to end June 18, 2010.

[41]        
The plaintiff did not complete this program. She had been informed by
her employer by a letter dated March 16, 2010 that her position on Sixth South
at RIH was eliminated due to re-organization. On April 23, 2010, she elected to
leave her permanent full-time position for a casual position with RIH.

[42]        
In this arrangement, she was entitled to “bump” other employees who were
junior to her in seniority to a comparable job which she had performed, or
“bump” a junior employees’ job so long as she was capable of performing that
employment.

[43]        
She testified that she chose to work casual as she was of the opinion
that due to her injuries she could not work full-time. Since then, the plaintiff
has worked casual shifts at RIH.

[44]        
Prior to March 22, 2011, the plaintiff made an application for a
full-time relief position which she was awarded. The position was to commence
April 14, 2011. For reasons unrelated to the accident, she started early
maternity leave and never worked in this position.

[45]        
In July 2011, just before the birth of her son, the plaintiff applied
for and was awarded a full-time LPN float position at RIH. In her examination
for discovery, held February 13, 2012, the plaintiff was asked the following
questions and gave the following answers relating to that position:

Q         At this point in time given that you are a new
mom do you have some plans to look for a full time position with Interior
Health?

A          I currently own a full time position with
Interior Health.

Q         Sorry, when did you get that full time
position?

A          I have been on it while I was off on
maternity leave in hopes that I would be able to return full time.

Q         So when did you get that position?

A          I believe it was when I was pregnant, near
the end.

Q         Sorry, so are you going to go back, is it your
plan to go back to that full time position that you currently own or are you
going to go on the casual list when you go back to work?

A          I would like to be full time but I will have
to see what my physician says when that time comes.

Q         And what is the full time position that you
currently own is it 6 South, some other [ward]?

A          It’s a float, pool position.

Q         Sorry?

A          Float, pool position.

Q         What does that mean?

A          You work
different floors.

[46]        
Later on, at her examination for discovery, she gave the following
evidence:

Q         Have you applied for any position since
February 13, 2012?

A          It’s possible. I apply all the time for
positions just — just to see if I get them or not.

Q         Did you apply for a job in the ER recently?

A          Most likely.

[47]        
At the time of trial, the plaintiff was scheduled to return to work in
July 2012.

Medical Evidence

[48]        
Several experts provided evidence in written reports dated as follows:

[49]        
Janice Fraser, a physiotherapist, provided physiotherapy to the
plaintiff from March 9, 2009 to December 8, 2009.

[50]        
Melissa West, a massage therapist, kinesiologist and exercise specialist
designed and supervised a rehabilitation program for the plaintiff.

[51]        
Amanda Demarni provided rehabilitation programs to the plaintiff from
January 18, 2010 to February 26, 2010, May 18, 2010 to October 14, 2010; and
March 28, 2012 to June 15, 2012.

Dr. Anderson’s Evidence

[52]        
Dr. Anderson has been the plaintiff’s family doctor since 2008. She was
responsible for the treatment of the injuries that the plaintiff suffered in
the motor vehicle accident. Dr. Anderson provided treatment to the plaintiff from
January 14, 2009 until December 8, 2010. After that time, all further treatment
until January 2012 related only to the plaintiff’s maternity care. The
plaintiff was seen by Dr. Anderson on January 12, 2012 for the purpose of Dr.
Anderson’s report dated February 9, 2012.

[53]        
In her testimony, Dr. Anderson defined subjective and objective clinical
findings. Objective findings are those physical findings found by her, such as
degrees of movement, spasms, and findings upon her palpitating a particular
area of a person’s body (e.g., the trapezius and intrascapula muscles). Subjective
findings are complaints from the patient. In treating the plaintiff, Dr.
Anderson relied on subjective and objective findings. She provided the
following evidence.

[54]        
On January 14, 2009, upon examination, Dr. Anderson found that the
plaintiff’s neck:

… was limited to approximately
thirty degrees rotation bilaterally, decreased extension about twenty degrees,
decreased flexion about thirty degrees there was bilateral trapezius ridge
spasm and pain. She has pain intrascapular, muscular pain paravertebral worse
on the right side than the left side. There was tenderness along the pelvic
rim, tenderness in the chest to palpation but no visible bruising. …

[55]        
On January 29, 2009, Dr. Anderson found her range of motion to be poor. Dr.
Anderson ordered a CT scan of the plaintiff’s neck. The results were within the
normal limits. Dr. Anderson also heard complaints from the plaintiff of not
sleeping and waking with nightmares, for which Dr. Anderson prescribed
medication.

[56]        
Dr. Anderson notes that on February 24, 2009, the plaintiff was going to
the gym and working out on the treadmill and elliptical machine. This was
confirmed by the plaintiff. The plaintiff reported to Dr. Anderson that she
experienced sporadic numbness in her arms and legs. The numbness in her legs
occurred occasionally at the gym. The plaintiff also reported aching in the
lower back. Further, although the plaintiff’s neck rotation showed some
improvement, her shoulders displayed an elevated position. At that time, the
plaintiff was attending massage therapy twice a week.

[57]        
On March 25, 2009, the plaintiff complained to Dr. Anderson of more pain
and less sleep. The plaintiff continued to take medication for the pain and to
help her sleep.

[58]        
Dr. Anderson referred the plaintiff to Dr. Jeff Oyler, a neurologist,
who examined the plaintiff on April 3, 2009. Dr. Anderson received a report
from Dr. Oyler, which report was not in evidence at this trial.

[59]        
Dr. Anderson relied on Dr. Oyler’s report to the extent that Dr. Oyler
found no neurological involvement and concluded that the plaintiff’s headaches
were cervicogenic in nature. Dr. Anderson states:

… Dr. Oyler’s impression was one of severe non specific
neck pain with myofascial component, as a result of the soft tissue whiplash
type neck injury that was sustained in the motor vehicle accident on January
13, 2009.

… He felt the numbness
sensation was suggestive of benign sensory disturbances commonly seen in her
setting and represent a secondary referred feature of proximal pain syndrome.
He felt that the medication that she was taking was reasonable and encouraged
non pharmacological measures such as physiotherapy, heat and massage.

[60]        
On April 8, 2009, the plaintiff reported “twitching” and muscle spasms
which Dr. Anderson found as objective evidence. The plaintiff experienced fewer
“jolts” and trouble sleeping with the aid of medication, but the plaintiff
complained to Dr. Anderson that she suffered “significant pain” after
physiotherapy.

[61]        
On May 28, 2009, Dr. Anderson, for the first time, measured the
plaintiff’s shoulders. She found a “marked limited range of motion in her
shoulders”.

[62]        
After various appointments with Dr. Anderson, the plaintiff reported to
Dr. Anderson of her various physiotherapy treatments, her continued attendance
at the gym, and her massage and acupuncture treatments. From time to time, Dr.
Anderson adjusted the plaintiff’s prescribed medication.

[63]        
On July 21, 2009, the plaintiff complained to Dr. Anderson of a period
of one week of poor sleep caused by nightmares. She also complained of being
socially isolated and stated she was having panic attacks. Within a week, at
her next appointment with Dr. Anderson, she reported that the panic attacks had
been reduced. She continued to attend the gym on a daily basis.

[64]        
By August 13, 2009, the plaintiff reported to Dr. Anderson that her
range of motion had improved, which was confirmed upon Dr. Anderson testing her
range of motion.

[65]        
By September of 2009, spasms in the plaintiff’s neck had decreased. Her
medication for mood and sleep disorders continued to be adjusted, and some were
increased.

[66]        
On September 17, 2009, the plaintiff reported to Dr. Anderson that she
had experienced bouts of rapid heartbeat, for which she received treatment at
RIH on September 20, 2009. The treatment was on an out-patient basis where the
plaintiff was monitored for a 24-hour period. The plaintiff thought that it was
caused by her prescribed sleep medication.

[67]        
Dr. Anderson referred the plaintiff to Dr. Collier, a neurologist, for
an EMG. Dr. Collier performed nerve conduction tests in the plaintiff’s upper
arms. The results were within normal limits. He concluded that the “overall
picture is consistent with myofascial type of pain”.

[68]        
By October 15, 2009, the plaintiff was off all medication. Rotation in
her neck had not improved since August of 2009, but she was “sleeping okay”.

[69]        
Between late October and December 10, 2009, the plaintiff reported to
Dr. Anderson that she was still attending the gym and biking. Dr. Anderson
noted that a flexion test showed improvement to her neck and shoulders.

[70]        
On November 26, 2009, the plaintiff complained of “increased migraine
headaches behind her right eye,” which the plaintiff reported to Dr. Anderson were
made worse by massage therapy.

[71]        
By December 10, 2009, the plaintiff was complaining to Dr. Anderson of
left shoulder pain. However, her range of motion had improved and she had
experienced no further headaches since her last visit with Dr. Anderson on
November 26, 2009.

[72]        
The plaintiff’s range of motion in her neck and shoulders continued to
improve. On January 12, 2010, Dr. Anderson noted that the plaintiff had started
her rehabilitation program, and was taking Tylenol and Advil as needed. Rehabilitation
continued, but not without difficulties. On January 29, 2010, Dr. Anderson
found tenderness and spasms in the plaintiff’s shoulders. These were objective
findings.

[73]        
By February 2010, the plaintiff’s shoulder flexion had improved close to
normal, but she still suffered some pain. Her neck rotation to the left was
normal, and to the right she was within ten degrees of normal. Dr. Anderson
observed that on February 26, 2010, the plaintiff had “tightness and
crepitation and tightness in her trapezius [muscles]” which Dr. Anderson again
found to be objective findings.

[74]        
On March 8, 2010, the plaintiff entered a graduated return-to-work
program. After that date, she complained of pain in her upper back and spasms
in her trapezius muscles.

[75]        
On April 15, 2010, the plaintiff reported upper back pain in her
shoulders, but no headaches. By April 26, 2010, she reported to Dr. Anderson
that she was experiencing pain and tingling in her hands. As a result, she was
not able to complete the last two hours of her shift and was unable to do any
heavy lifting at work, although she was performing all other regular duties as
a LPN. Dr. Anderson, on palpitation, found tenderness in her upper back and
neck region, findings which were both objective and subjective.

[76]        
During the months of May, June and July of 2010, Dr. Anderson recorded
the plaintiff’s comments on her ability to tolerate the plaintiff’s LPN shifts,
her headaches, or lack of headaches, and any difficulty she had during her
working shifts.

[77]        
On June 29, 2010, the plaintiff complained to Dr. Anderson of
palpitations of the heart. In late July 2010, she further complained of an
increase in frequency of headaches after she worked, which led her to decrease
her work hours.

[78]        
The plaintiff’s shoulder pain and headaches persisted. In October 2010, she
complained of an “increase in pain for the last week in the upper trapezius and
interscapular area”. She also told Dr. Anderson that migraines were occurring
on a daily basis. Dr. Anderson prescribed medication for the plaintiff.

[79]        
On October 26, 2010, the plaintiff reported to Dr. Anderson that the
pain had decreased, but that her shoulders and back were stiff. This caused
stiffness and discomfort into her neck and upper arms. She advised Dr. Anderson
that she had worked very little as a result, although she continued at the gym with
aerobics and some weights and was due to start another kinesiology program. Dr.
Anderson prescribed meditation, yoga and counselling to address the plaintiff’s
stress and to help her relax.

[80]        
Dr. Anderson noted on November 16, 2010, that the plaintiff stated that
the night shifts were easier than the day shifts. At that time, the plaintiff
was using medication to sleep and for pain at work. Dr. Anderson recommended
“counselling for anxiety/distress”.

[81]        
On December 8, 2010, the plaintiff was pregnant. She told Dr. Anderson,
as it related to the motor vehicle accident, that she was experiencing numbness
in her hands “if she elevated her arms on both sides”.

[82]        
Prior to taking her maternity leave, the plaintiff told Dr. Anderson
that due to her physical limitations she worked approximately 44 hours every
two weeks, and she could not work a full-time position, although such a
position was available to her.

[83]        
Although she suffered less pain and had no migraines during the third
trimester of her pregnancy, at the end of December or the beginning of January
2012, her migraines started again. They now started once a week with small
headaches in between.

[84]        
She told Dr. Anderson that she could not vacuum, clean toilets or fold
laundry. She performed these activities in short segments because of “…
increased fatigue and muscle spasm.”

[85]        
Furthermore, Dr. Anderson stated in her February 9, 2012 report the
following:

… She was also complaining of
pain in her shoulders again deep inside the trapezius and scapula area and
noted that she easily fatigued when lifting her arms such that she was unable
for example to pour a 2 litre bottle and had to stop in between.

[86]        
Dr. Anderson further noted the plaintiff’s reaction to the various
treatments as follows:

With respect to future treatment recommendations and
investigations Christel seemed to respond best to the exercise rehabilitation
program which allowed her to regain strength and mobility in her neck and upper
back. Most recently Christel has been seen by Dr. Jill Calder who is a
rehabilitation specialist with respect to the exacerbation of her symptoms when
she lifts her arm above shoulder level. This assessment was done on December
15, 2011.

On assessment Dr. Calder felt
that her thoracic outlet was positive but the EMG results were within normal
limits.

[87]        
The report of Dr. Calder that Dr. Anderson refers to was not in
evidence. It appears that Dr. Anderson did not adopt Dr. Calder’s opinion when
she concluded:

This career choice is important to Christel [referring to her
LPN work]. I believe her abilities will improve gradually with time but feel
that she will always be somewhat limited by upper back and neck pain that will
affect her job.

Christel has put in a good effort
but after 3 years is only capable of performing at 50% of her duties. Likely
even with time, her function will be 75% of pre-injury level.

Dr. Boyce’s Evidence

[88]        
At the request of the defendants, Dr. Boyce saw the plaintiff on
November 30, 2009, approximately ten months after the accident.

[89]        
The plaintiff complained to Dr. Boyce about neck and upper back pain,
numbness and tingling in her feet and hands, and migraine headaches. She also
complained about pain and stiffness in her lower back. The plaintiff advised
Dr. Boyce that she was attending the gym five days per week. She also advised
Dr. Boyce of the rapid heart rate she experienced, and that at the time she was
only taking Tylenol 3 as required.

[90]        
The plaintiff further told Dr. Boyce that she suffered depression and
that she felt it was “related to mild posttraumatic stress disorder.” She
referred to having nightmares and suffering bouts of insomnia, but said that
these problems had:

… subsided to the extent, now
having approximately half as many nightmares and she is sleeping better even
though she stopped taking the sleeping pill, Elavil.

[91]        
She told Dr. Boyce that she was not able to do her work as a LPN because
of neck pain. Dr. Boyce noted that the plaintiff did not appear to be in any
stress and was able to stand with an erect posture. However, he noticed that
she moved her neck very tentatively, lacked a full range in all directions,
including rotation, forward flexion, extension, and lateral flexion. He noted
that her limitations were similar with active and passive movement, and that
she had tenderness along the trapezius muscles extending from the base of the
skull down to her shoulders, particularly on the left side. He found “no
obvious significant spasm or abnormalities with muscle structure symmetric in
size bilaterally there was no tenderness of the spinous processes.” He noted
that she had normal range of motion of her shoulders, as well as the remaining
joints in the upper extremities, and that she had “normal motor sensory and
reflex exam of the upper extremities with normal neurovascular exam.”

[92]        
Dr. Boyce concluded that the plaintiff’s soft tissue injuries were
mainly to her neck and upper back, and to a lesser extent her lower back.

[93]        
Dr. Boyce expressed the opinion based on the plaintiff’s history,
including the mechanism of the injury and his clinical examination that the
plaintiff’s expected convalescence would be up to twelve months. Dr. Boyce
found it:

… unclear as to why she is
having such limited improvement and ongoing disability with regards to her neck
symptoms mainly.

[94]        
He was of the view that there should be no permanent injury, and that
she should expect a full functional recovery which would include carrying on
her full duties as a LPN.

[95]        
Dr. Boyce encouraged her to become involved in an exercise
rehabilitation program, continue her gym workouts, and attend structured yoga
classes twice a week.

[96]        
He also noted there was a “significant psychological component” to her
injuries, referring to her nightmares and sleep disturbance. He recommended
psychological counselling, as he believed this would give “her confidence with
her expected normal functional and psychological outcome.”

[97]        
He recommended a graduated return-to-work program to start within a
period of two months that would have her working two to four hours per day for
a few weeks.

Dr. Craig’s Evidence

[98]        
Dr. Craig specializes in physical medicine and rehabilitation. Dr. Craig
assessed the plaintiff in his North Vancouver office on September 22, 2010, at
the request of plaintiff’s counsel. He was asked to comment on causation and
prognosis with regard to the plaintiff’s injuries suffered in the motor vehicle
accident, and whether further investigations or treatments were necessary.

[99]        
Dr. Craig reports that the plaintiff told him that she was unable at
that time to return to full-time work. She said she was working 12-hour shifts
on a casual basis, and that she was taking shifts depending on how she felt at
the time because she would become quite fatigued with the work and she had
difficulty with tasks such as transferring patients, hanging intravenous bags,
and sitting for prolonged periods of time. She described herself to Dr. Craig
as very physically active prior to the accident and she said she had not had a
migraine for a year prior to the accident. She advised him that she was now
having migraine headaches once a week.

[100]    
As a result of his examination of the plaintiff, Dr. Craig found the
following:

On examination the patient appeared to make good effort. I
noted no inconsistencies in the examination. Commands were followed
appropriately. She had an appropriate range of affect. I noted no
inconsistencies between observed and tested range of motion. There were pain
behaviours exhibited such as grimacing with palpation and manual muscle testing
in the shoulder girdle.

Head and neck: She could flex forward bringing her
chin within an inch of her chest with reported pain between her shoulder
blades. Extension was limited at approximately 15” due to a pulling sensation
in her anterolateral neck. Rotation was approximately 70” bilaterally with
reported contralateral tightness. She had full lateral tilt bilaterally with a
contra lateral pulling sensation. Spurling’s maneuver produced contralateral
discomfort but no neurological symptoms. Spurling’s maneuver involves flexion,
rotation, and extension of the neck. This leads the posterior joints (facets)
and narrows the exit zone for the spinal nerves. She was diffusely tender in
her neck and upper and posterior shoulders. She denied distal referral of pain
but did report some tingling in her hands with palpation. There was no
tenderness of the scalp or jaw masculature. There was no crepitus in the
temporamandibular joints and she reported no tenderness or pain with jaw
palpation or motions respectively.

Arms: Strength and sensation to light touch were
normal in all myotomes and dematomes tested in the arms. Reflexes were present
and symmetric. Carpal tunnel tests were negative bilaterally. With Adson’s
maneuver, which is a maneuver for thoracic outlet syndrome, she reported her
arms feeling fatigued and some tingling in her hands and arms.

Shoulders: There were no significant restrictions in
shoulder range of motion. Rotator cuff impingement tests were negative. There
was no pain with stressing the tendon of the long head of the biceps. No
instability noted. There was normal strength with manual muscle testing of
muscles in the shoulder girdle. She reported pain and grimaced with manual
muscle testing in the shoulder girdle and with tests for the rotator cuff.
There was no evidence of separation of the acromiclavicular joints. She
reported pain with attempts to stress any shoulder structure with pain reported
in the upper and posterior shoulders.

Back: There was full pain free active flexion and
extension of the lumbar spine. There was no pain when extension was combined
with rotation or with passive hip extension in the prone position. There was no
focal tenderness in the musculature, or the spinous processes, or pain with
anterior spinal or sacral glide. There was no evidence of spinal curvature.
With seated extension and rotation she reported pain between her shoulder
blades.

Hips: There was full pain free hip range of motion.
Acetabular grind was negative. There was no pain with stressing the hip or
sacroiliac joints. There was no pain with single leg stance. No focal
tenderness was noted in the hip girdle. She could comfortably do a squat. There
was no pain with manual muscle testing in the hip girdle and no focal weakness
was noted.

Legs: Strength and sensation to light touch were
normal in all myotomes and dematomes tested in the legs. Reflexes were present
and symmetric. There were no adverse neural tensions signs.

She would not meet the diagnostic
criteria for fibromyalgia as she had no tender points present in the lower
portion of her body. In the upper body she was tender at all but three of the
fibromyalgia points.

[101]     Dr. Craig was
of the opinion that the plaintiff had a moderate soft tissue injury to her neck
and shoulders as a result of the accident. He concluded that these soft tissue
injuries exacerbated a pre-existing migraine condition. He also found that the
plaintiff had a mild soft tissue injury to her lower back, which had exacerbated
symptoms from her December 2009 snowboarding fall. He was of the opinion that
she had a soft tissue contusion to her chest which had resolved itself.

[102]     As to her
mood and cardiac issues, he deferred those to specialists in those particular
areas.

[103]    
Dr. Craig was further of the opinion that despite the plaintiff being 20
months past the date of the accident, she had not reached her point of maximum
medical improvement:

… as there is still good
treatment options available, she has had some improvement in her symptoms over
time, and she is still within the window of opportunity for further
improvement. Both her mood and sleep have improved which are favourable
prognostic factors for further improvement in her other symptoms. Over time I
would expect that she should be able to tolerate her work better. I do not see
her being at any increased risk of requiring surgery in the future due to
injuries … She will be at slightly increased risk of premature
degenerative changes in her neck due to injuries … [Emphasis added].

[104]    
He concluded that given the symptoms he observed, she may be left with
residual discomfort in her neck and shoulders that would flare with a more
physical work day or with more physically demanding household tasks or
recreation. He commented that this may affect any plans for her to return to
work on a full-time basis:

She would be at increased risk of
requiring time off work due to these acute flares in her pain due to injuries
from the January 13, 2009 accident. Given that she has been unable to return to
full-time hours despite being back to work for approximately five months, the
prognosis is guarded for her return to full-time hours.

[105]     Despite
his conclusions regarding her ability to work, he found that there are no
limitations with respect to her ability to function day to day and complete household
tasks.

[106]     He
suggests that it might be more appropriate for the plaintiff to have a position
where she works an eight-hour rather than a 12-hour shift.

[107]     Dr. Craig
agreed with Dr. Boyce’s diagnosis that her symptoms are indicative of myofascial
pain in the shoulders and neck and are not due to neurological damage and
further agreed with Dr. Boyce’s recommendations regarding treatment. Dr. Craig
said that the plaintiff did not appear depressed when he saw her. He wondered
whether there was any ongoing anxiety, and was of the opinion that there should
be further treatment and investigation, including counselling. He recommended
weaning the plaintiff from passive treatment such as massage therapy, and that
she continue to work with a kinesiologist to increase her level of physical
activity. He further suggests treatment for the pain and her headaches, all of
which he says are available to her and through the Medical Services Plan.

Dr. Lawrence’s Evidence

[108]     Dr.
Lawrence, a clinical psychologist, conducted a psychological assessment of the
plaintiff on April 13, 2011 and prepared a report at the request of plaintiff’s
counsel.

[109]    
Plaintiff’s counsel instructed Dr. Lawrence as to the following:

The purpose of your report will
be to assess and determine the psychological, emotional, and mental impact of
the above-captioned [motor] vehicle accident on Ms. Warner.

[110]     Plaintiff’s
counsel then provided Dr. Lawrence with information about the plaintiff.

[111]     Dr.
Lawrence interviewed the plaintiff and conducted a number of standardized tests
on her. At the time Dr. Lawrence interviewed the plaintiff, she was six months
pregnant. She advised Dr. Lawrence that she was taking no medications other
than nutritional vitamin supplements and that she had just completed three
12-hour shifts at work and felt a little tired and sore.

[112]     The
plaintiff told Dr. Lawrence the details of the accident. She told Dr. Lawrence
that at the scene of the accident she experienced “a high level of intense pain
in her shoulders and neck during the moments after the impact.” She was panicked
and felt helpless. She said that she did not lose consciousness; she had “vague
memories of the incident during the first month or two” after the accident.

[113]     She said
that she did not return to work after the accident. She experienced more
frequent migraine headaches and her sleep was disrupted from pain and
nightmares following the accident. She described how her social life was
affected. Although she maintained contact with her boyfriend, she withdrew
contact from other friends. She told Dr. Lawrence that she was going to massage
therapy and physiotherapy at the time, as she had developed a protective posture.
She also referred to the heart problems she experienced which she found
frightening. She further told him about the medications that she took and the
purpose of those medications.

[114]     The
plaintiff described the rehabilitation program that she had participated in with
Kamloops Sports and Physiotherapy in the early part of 2010 until her graduated
return-to-work program. She told Dr. Lawrence that within the first six weeks
of this program, her migraines had “decreased significantly” while certain
aspects of her strength and range of motion had increased significantly.

[115]     She
described her graduated return-to-work program and how her hours of work were
increased, which she claimed increased the pain in her upper back, neck and
shoulders, and caused her migraines to recur with a greater frequency. She said
that despite the extended period of her graduated return-to-work program, she
was unable to work full-time and chose to do casual work on call with the same
unit as before the accident.

[116]     The
plaintiff told Dr. Lawrence that she was gradually increasing the hours of work.
At the time of the interview, she was working about 44 hours during each
two-week period. She said that she had applied for a temporary full-time
position on her unit so that she could work enough hours to obtain the maximum
employment insurance maternity benefits. But she told him that she doubted
whether she would ever work full-time again.

[117]     As for her
migraine headaches, she told Dr. Lawrence that they were occurring about once
every week or two, whereas they were infrequent prior to the accident. However,
her migraines were less frequent than directly after the accident. They had
been more frequent the first year and began to decrease in frequency in the early
part of 2010 during physiotherapy. She said that she had found it difficult
making decisions and to concentrate. She didn’t have these difficulties before
the accident.

[118]     The
plaintiff said that she does not feel comfortable discussing her problems and
that she is not comfortable with the idea of mental health counselling, but
that she would be interested in “psychiatric consultations regarding
medications to assist with pain, sleep and depression.”

[119]    
Dr. Lawrence conducted two tests relating to depression: the Beck
Depression Inventory and the Davidson Trauma Scale. The Beck Depression
Inventory rates symptoms of clinical depression. The plaintiff’s score was in
the mild to moderate range. On the Davidson Trauma Scale, the plaintiff showed
a moderate range of symptoms consistent with post-traumatic stress disorder,
but could also be related to an anxiety disorder. Dr. Lawrence stated:

It appears that she experienced
some features of posttraumatic stress, and that she now shows some symptoms or
features of a generalized anxiety disorder.

[120]    
Dr. Lawrence also administered a personality assessment inventory. In
interpreting the results, Dr. Lawrence found:

On the Personality Assessment inventory her scores suggest
there may have been some idiosyncratic responses to particular items that could
affect test results. She may not have answered in a completely forthright
manner. They indicate a defensiveness about particular personal shortcomings as
well as an exaggeration of certain problems.

She tends to portray herself as being relatively free of
common shortcomings to which most individuals will admit. Although there is no
evidence to suggest an effort to intentionally distort the profile, the results
may under-represent the extent and degree of any significant findings in
certain areas due to her tendency to avoid negative or unpleasant aspects of
herself.

…

With respect to negative
impression management, there are subtle suggestions that she attempted to
portray herself in a negative manner in particular areas. Some concern about
distortion of the clinical picture must be raised. She presents with certain
patterns or combinations of features that are unusual or atypical in clinical populations
but relatively common among individuals feigning mental disorder. This pattern
does not necessarily indicate a level of impression management that would
render the test results uninterpretable, but the scale elevations may
over-represent the extent and degree of significant test findings in certain
areas.

[121]    
 Dr. Lawrence diagnosed the plaintiff as having a pain disorder
associated with psychological factors and a general medical condition, major
depressive disorder (partially in remission), and a generalized anxiety
disorder. He concluded that after the plaintiff returned to work her mental
health disorders improved to a mild to moderate level. In his opinion, there is
potential for improvement; her psychological symptoms depend on the plaintiff
taking the appropriate treatment. In this regard, he made several recommendations:

Ms. Warner would benefit from assistance with learning
physical methods for reducing her experience of pain. Those methods could
include psychologically oriented techniques such as progressive relaxation,
auto-hypnosis, meditation, anxiety and stress reduction, and methods for
reducing symptoms of depression. She would benefit from instructional programs
specific to her particular medical conditions and symptoms. Ms. Warner requires
individualized instruction and sustained supervision in applying those methods
to activities of daily living.

Ms. Warner could benefit from
mental health treatment from a counsellor, psychologist, and/or psychiatrist
with experience with motor vehicle or work related injuries and chronic pain.

Dr. Robinson’s Evidence

[122]     Dr. Gordon
Robinson is a neurologist practicing in a sub-specialty of headache disorders.
On February 9, 2012, at the request of plaintiff’s counsel, Dr. Robinson interviewed
and examined the plaintiff in his office for approximately two and a half to
three hours. Dr. Robinson stressed that the most important aspect of assessing
headaches is the interview of the patient.

[123]     Dr.
Robinson took a history from the plaintiff. She told him that despite her
graduated return-to-work program, she was unable to return to full-time
employment due to headaches, and shoulder, neck and upper back pain. She said
that she gave up full-time employment and that she was taking casual employment
so that she could pick up easy floors to work on.

[124]    
The plaintiff told Dr. Robinson that she worked three 12-hour shifts in
a row. He states:

She has been able to work 12-hour
shifts at times over 3 consecutive days. However, she may then have an
increase in neck, shoulder and upper back pain or develop a migraine that would
be present for longer than a day. [Emphasis added.]

[125]    
She disclosed that she had a past history of migraines, which began in
her teenage years with sporadic episodes and without any known cause. She stated
that she had no more than three or four attacks in a year prior to her accident
and that there would be long stretches between them. In her early 20s the
headaches stopped.

[126]    
The plaintiff told Dr. Robinson that her migraines gradually improved,
they were rare during the last trimester of her pregnancy, but that they had
returned and were severe. The plaintiff said that at the time of the interview,
the headaches occurred weekly and often she had two or three during a seven-day
period. Although these were sometimes mild headaches, they were more frequently
“moderately severe and at times incapacitating.”

[127]    
The plaintiff told Dr. Robinson that she intended to return to work as a
LPN at RIH, and that she had successfully applied for a full-time position in
late 2011. As she pointed out, however, this was during a time when her headaches
and other symptoms were improved because of her pregnancy; she said that it was
impossible for her to return full time after her relapse. She told Dr. Robinson
that she loves her job and that she is not prepared to give it up because she
believes it was meant for her.

[128]    
With respect to the plaintiff’s physical injuries, Dr. Robinson noted:

Cervical spine examination showed full range of motion. She
did complain of pain and stiffness at extremes of movement. She was tender
throughout paracervical, upper trapezius and upper parathoracic musculature.

Her shoulders have full range of motion.

Elevation of her arms at shoulder
height or above brought on symptoms of fatigue and numbness throughout her
hands within 15-30 seconds. There were no automatic changes such as coldness,
excessive sweating, colour or temperature change in her hands.

[129]     He stated
that the plaintiff’s complaints of pain during the extreme movements were
subjective.

[130]     Dr.
Robinson based his opinion on the following assumptions:

a)    the plaintiff,
as a result of the accident, sustained a soft tissue injury to her neck, upper
back and shoulders;

b)    her neck
movements were “severely restricted and pain made it impossible for her to
return to work as a LPN at the hospital”;

c)     shortly
after the accident and initially following massage therapy she began to experience
“wicked migraines” which migraines “had been quiescent for years prior to the
motor vehicle collision”;

d)   
the plaintiff was experiencing migraine headaches two to three times in
a seven day period.

e)   
the plaintiff’s headache journal prepared at the request of Dr.
Robertson was accurate.

[131]     Dr.
Robinson was of the opinion that it was not unusual for headaches to develop as
a result of soft tissue injury to the neck and that these may have
characteristics similar to migraines and tension-type headaches. In fact, the
characteristics of the plaintiff’s headaches were identical to those headaches that
she suffered in previous years prior to the accident. Although possible, it is
unlikely that the plaintiff’s migraines would have worsened had the accident not
occurred;

[132]     Dr.
Robinson did not believe that further investigation would be required. However,
based on her history and his examination, he stated:

… chronic headache related to neck injury that reflects an
aggravation of pre-existing migraine.

… head pain may have various characteristics that are
similar to primary headaches such as migraine and tension type headache.

Migraine is characterized by a throbbing discomfort which
may be one-sided. Attacks are of moderate to severe intensity and may be associated
with gastrointestinal upset and sensitivity to light and sound. Tension type
headache is a generalized dull non-throbbing discomfort without associated
features. The intensity is mild to moderate without incapacitating attacks.

In the majority of cases clinical examination and
investigation is normal in patients suffering from recurring headache and the
diagnosis rests on the temporal relationship to trauma and the historical
features reported by the patient. The headaches may reflect a worsening of
pre-existing migraine or the development of head pain arising de novo from head
and neck injury. Headache related to head and neck injury may be present from
outset or gradually develop in the weeks and months following injury.

[133]     As for
treating her migraines, he said that, in his experience, migraine medication seemed
to be “rendered impotent”.

[134]     He
recommended Botox treatments to treat her migraines.

[135]     With
respect to the paresthesia involving her upper limbs which is positional and
comes on quickly, Dr. Robinson said that this likely represents a “functional
thoracic outlet syndrome” that is commonly associated with neck injuries. He
did not provide any further assessment regarding her neck, upper back and
shoulder discomfort, deferring to a specialist in physical medicine. However,
he doubted that the plaintiff would be able to return to full-time employment
given her reported difficulties with headaches and neck, upper back and shoulder
pain. As to her continued employability, Dr. Robinson says the following:

She will probably be able to
return to work part-time as an LPN once her maternity leave ends in July 2012.
However, I doubt that she will be able to go back to full-time hours given her
report of the difficulties she encounters with headache, neck, upper back and
shoulder pain. I believe that she is clearly motivated to work and has been
diligent and compliant in all treatment suggestions.

[136]     He
confirmed that the assessment of headaches, which includes diagnosis and impact,
can only be determined by self-report.

[137]     Dr.
Robinson explained the plaintiff’s improvements with her migraine headaches during
pregnancy as follows:

In the majority of women who have migraine, pregnancy results
in a temporary improvement in the condition. It is thought that the high levels
of stable hormones, particularly estrogen, are responsible for this increased
threshold to migraine. The improvement will usually persist until delivery and
at times beyond, with breast-feeding providing some benefit for many women.

Her improvement during her
pregnancy was predictable. Unfortunately, a relapse back to frequent migraine
headaches after having her baby was likely to occur.

[138]     As to her
continued employability, he concluded:

She will probably be able to
return to work part-time as an LPN once her maternity leave ends in July 2012.
However, I doubt that she will be able to go back to full-time hours given her
report of the difficulties she encounters with headache, neck, upper back and
shoulder pain. I believe that she is clearly motivated to work and has been
diligent and compliant in all treatment suggestions.

[139]     Dr.
Robinson provided the concluding remarks:

It is now 3 years since the motor vehicle accident. It is
probable that she will continue to have neck, upper back and shoulder
discomfort indefinitely. As such this will result in continued increased
activity of her migraine, with frequent headaches that are occasionally
incapacitating.

…

She is at risk for a permanent partial
disability related to the physical symptoms encountered following the motor
vehicle accident of January 13, 2009. It is probably that she will continue to
have intermittent headaches that can be severe indefinitely, and that the
activity of her headaches will parallel any worsening in her neck, upper back
and shoulder pain, which is usually related to physical activity.

Evidence of Ms. Gallagher of Vocational Pacific Ltd.

[140]     Ms.
Gallagher of Vocational Pacific Ltd. was retained by the plaintiff’s counsel to
provide a present and future employment potential report. She met with the
plaintiff for four hours on March 16, 2012, at which time she interviewed the
plaintiff and administered a number of vocational tests. Ms. Gallagher
concluded that the plaintiff put forth a “good effort to complete the tasks
asked of her.”

[141]    
Ms. Gallagher, based on the information reported to her by the
plaintiff, believed that the plaintiff went back on a graduated return-to-work
program starting in March of 2010, but was unable to resume full-time work due
to pain.

[142]    
Ms. Gallagher accepted as accurate the following:

As she was a casual employee, she was able to choose her
schedule and thus avoided working two shifts in a row. She was also able to
limit her shifts to the surgical ward where she knew other LPN’s who would be
willing to assist her with physically demanding tasks. Despite that, she
reported that on many occasions she would have to call in sick before a shift
due to migraine headaches. The net result of all this was that she worked far
fewer hours than she had done prior to the accident.

Presently, Ms. Warner is planning to return to casual work as
an LPN at the end of her maternity leave in August 2012. She intends to try to
obtain only shifts only on those wards where she feels the duties may be
lighter such as paediatrics, surgical and the ER. She reports she will not
accept shifts on the rehab or orthopaedics wards as she says that the work on
these wards is more physically demanding.

…

Ms. Warner’s current situation is
that after 11 months of trying she was unable to work full-time hours, was
working in pain and required assistance from co-workers with heavier tasks.
This would not be considered a referred vocational rehabilitation outcome.
While it is recognized that she remains dedicated to the LPN field, and while I
do not wish to discourage her efforts in that regard, having to approach her
work on such a selective basis does not bode well for her long-term future in
the nursing field.

[143]     At the
time of the plaintiff’s interview, she was on maternity leave and planned to
work as a casual LPN at RIH starting in August 2012. She reported to Ms.
Gallagher that she had a plan to eventually return to school and train as a
registered nurse (“RN”). Ms. Gallagher opined that given the plaintiff’s past
academic performance, and her work experience as a LPN, and based on her
experience in early childhood education:

… it is probable that she would
have been able to successfully complete the necessary training to become a
Registered Nurse and subsequently work in the field.

[144]     Ms.
Gallagher noted that the plaintiff was a suitable candidate for the RN program,
despite her weak “numerical ability” and “relative weakness in reading
comprehension.”

[145]     Ms.
Gallagher still explored other occupations for which the plaintiff might be
suited, and set out in her report their earnings.

[146]     The
plaintiff reported to Ms. Gallagher that she was experiencing pain in her neck
and both shoulders, and that since the accident she has migraines once a week.

[147]     She reported
that she experienced pain in her neck, a decreased range of motion, muscle
spasms in her neck and upper back while sitting in the same position for
extended periods of time, and increased pain when she was required to look down
or hold her neck in the same position for long periods of time. The most
concerning symptoms at that time, however, related to her shoulders and arms.
She said that she was diagnosed with severe thoracic outlet syndrome and that
she feels constant pain in both shoulders that often radiates down into her
arms as well. The plaintiff told Ms. Gallagher the following:

A simple task such as pouring a
glass of pop from a two litre bottle causes great fatigue and she has to stop
to take a break after pouring only half a glass. When she has to do work
overhead she dins that her hands go numb. She also has difficulty lifting even
small weights and lifting her infant son has been a challenge.

[148]    
Ms. Gallagher acknowledged in cross-examination that she made changes to
her draft report relating to the plaintiff’s test scores. Ms. Gallagher said:

… As noted in Appendix II, her
current test scores are also somewhat lower than the aptitude ratings
associated with her past academic and employment experience. It is possible
that factors such as mood, pain or difficulty concentrating may have
contributed to this. If her cognitive difficulties persist, this could have an
impact on her ability to undertake a two year diploma program.

Janice Fraser’s Evidence

[149]     Janice
Fraser, the plaintiff’s physiotherapist, provided physiotherapy treatment from
March 19, 2009 to January 2010. The plaintiff complained of pain, and on one
occasion was reduced to tears.

[150]     Ms. Fraser
says that she observed the plaintiff’s range of motion improve over the period
of treatment. The plaintiff’s progression was from time to time, “up and down,”
but Ms. Fraser said that this was not unusual. Aside from being given specific
exercises, the plaintiff was treated with acupuncture and MIS treatments, after
which the plaintiff complained of soreness. The plaintiff also complained of
headaches outside the treatment setting;some were described as migraines.

Evidence of Ms. West and Ms. Demarni’s Evidence

[151]     Ms. West
and Ms. Demarni are kinesiologists. Ms. West is also a massage therapist.

[152]     Ms. West
designed and arranged rehabilitation programs for the plaintiff for three
different periods. Ms. Demarni conducted the rehabilitation programs and
determined which exercises the plaintiff would do and the number of repetitions
of those exercises.

[153]    
At trial, Ms. West confirmed her findings in a report to an insurance
adjuster dated March 12, 2010:

SUBJECTIVE

Ms. Warner reported a 100%
decrease in migraine headaches and bilateral brachium pain at the time of her
discharge. Paresthesias in the brachium, antebrachium and hands, bilaterally,
decreased by 90% although the patient noted that she experienced these
symptoms, intermittently, in very specific positions (e.g. Shoulder flexion
greater than 120 degrees). A slight decrease in neck pain was noted with a
moderate decrease in bilateral shoulder pain. However, Ms. Warner reported that
she continues to experience a moderate increase in neck and shoulder pain for 8
to 12 hours post activity, which is successfully alleviated with the use of
Tylenol, taken at bedtime.

OBJECTIVE

… During the shoulder joint
range of motion testing, it was noted that Ms. Warner exhibited a moderate
increase in the ease of her movements.

[154]     The
plaintiff participated in a core fit training program with Ms. Demarni using an
exercise ball; it appears that she was able to perform all the exercises.

[155]     Ms. West
specifically said that the plaintiff was doing very well up to June 30, 2010,
but then suddenly had an increase in pain. Further, her health continued to
decline, and after August 2010, she was not doing well at all.

[156]     Ms. West re-assessed
the plaintiff on April 18, 2012. The plaintiff complained of numbness and of
recurrent migraines twice a week, and that her work caused her severe shoulder
fatigue.

[157]     Ms.
Demarni was not present at the re-assessment. She did not see the plaintiff
until May 28, 2012, at which time the plaintiff complained of extensive
numbness. On May 29, 2012, the plaintiff further complained of the onset of a
migraine and of pain, and that she felt weak (or like jello) at the end of the session.
On June 4, 2012, the plaintiff said she had several migraines the previous week
(and one starting that day), her shoulders stabbed constantly and her arm
tingled. On June 5, 2012, the plaintiff complained to Ms. Demarni that she had a
migraine the day before, and that after the session she was fatigued, felt
tighter and had stabbing pain.

[158]     The
records of Ms. West and Ms. Demarni for the second and third rehabilitation
programs participated in by the plaintiff were introduced by the plaintiff on
the fifth day of trial. This is despite an order granted by Master McDiarmid on
May 2, 2012 at a trial management conference directing the parties to exchange
a list of all the documents each intended to introduce at trial on or before
May 22, 2012. This did not occur. Accordingly, I find that the plaintiff was
prejudiced by the late tendering of these reports, as she was unable to have
Dr. Craig review them as he had already given evidence and had been
cross-examined. I give very little weight to those documents and their contents
which are summarized in paras. 156 and 157.

DISCUSSION

Findings of Fact

[159]     The
plaintiff has overstated her evidence with respect to her migraines.

[160]     The evidence
before the court relating to the plaintiff’s headaches, both before and after
the accident is contradictory. For the reasons below, I find that the plaintiff
has not been truthful or has overstated her evidence about her headaches.

[161]    
The plaintiff told Dr. Robinson that her migraines began in her teenage
years. Dr. Robinson stated in his report:

She describes her headaches as
occurring “rarely”, stating that there would be no more than 3 or 4 attacks in
a year. She would have “long stretches between them”, and in her early 20s
stated that her headaches were no longer present.

[162]     The plaintiff
disagreed that she made this statement.

[163]    
Dr. Robinson was cross-examined on this statement. He stated:

Q         Now, the presence of headaches prior to the
motor vehicle accident, that starts at the bottom of page 3 going on to the top
of page 4, and you have indicated that, third paragraph down on page 4, Ms.
Warner described to you that her headaches, this is pre-accident, occurred
rarely, no more than three or four attacks in a year?

A          Yes. The quotations are direct quotations.

Q         Yes. And that she would have long stretches
between them. Again, that’s a direct quotation?

A          Yes.

Q         And that in her early 20s she stated that her
headaches were no longer present?

A          Yes. I mean, it’s a direct quotation from
what she told me.

Q         And she was 28, I believe, at the time that
you assessed her. I have on the first page a date of birth of July 31, 1980,
motor vehicle accident January 13, 2009. Sorry, she was 28 at the time of the
accident. And so in her early 20s headaches no longer present. Seems like she
was free of headaches for about perhaps two, three, four years before the
accident?

A          There’s something wrong about this. I — I
think I can clarify it —

Q         Okay.

A          — somewhat from my written notes. When I
started asking her about her pre-existing headache history, she said she
recalled having them in her teens, and she called them migraines, and she did
use the term rarely. And then I’ve got a notation that says, “Carry into early
20s,” which means to me that they started in teens and they were persisting
into her early 20s. And then I’ve written none times, “at least a few years,”
and overall three or four a year or less, could be severe, and then the
characteristics as well and how she tracked things like food and activity and
all the rest of it and that there were long stretches between any headaches.

Q         Sorry, and that reference to three or four
years, is that three or four years before the accident?

A          Well, what she told me directly —

Q         Yes.

A          — was that she
hadn’t suffered from any migraine for at least a few years.

[164]     I accept
Dr. Robinson’s version as to what the plaintiff said. His evidence is
consistent with the evidence of Dr. Oyler, Dr. Craig, Dr. Anderson, Ms. Fraser
and Ms. Gallagher.

[165]    
The plaintiff was seen by Dr. Oyler on April 3, 2009. The plaintiff told
Dr. Oyler that she had a history of migraines, but last had a migraine seven
months before the accident. This would have been around September 2008. This is
consistent with a confidential patient history form completed by the plaintiff
in mid-January of 2009, in which she wrote that she had a history of migraines,
but “not in the last 5 months”.

[166]    
The plaintiff told Dr. Craig that her migraines pre-dated the accident,
but that she had not had a migraine “for a year prior to the accident”.

[167]    
She told Dr. Lawrence that prior to the accident her migraines were
“infrequent,” though she experienced migraines since adolescence. She told Dr.
Lawrence that her headaches were more frequent during the year following the
accident, but they decreased during the early part of 2010 while she attended
physiotherapy.

[168]    
The plaintiff, in her direct evidence relating to her migraine headaches
prior to the accident testified as follows:

Q         All right. Let’s move on then, Ms. Warner, to
telling Your Ladyship about your health during the period — let’s say five
years of so before the 2009 motor vehicle accident, were you having any
particular health problems?

A          Nothing
substantial. I would have occasional migraines. There was sometime where I
wouldn’t get them for a year at a time. Sometimes I would get them a couple of
times a year. It was very — it was just — it wasn’t a common thing, but I did
have them.

[169]     The
plaintiff’s father also gave evidence. He was not asked whether the plaintiff
had been diagnosed with migraine headaches as a teenager. Nor was he asked any
other questions relating to the plaintiff’s headaches before the accident.

[170]     Dr.
Anderson had the records from the walk-in clinic when she treated the plaintiff
on May 3, 2006 for a migraine headache. There Dr. Anderson noted that she said
she had suffered “migraines since a teenager” and then once a week.

[171]     The
plaintiff stated in her evidence that she did not have migraines while she was
employed at RIH before the accident. This is almost a two-year period. The
plaintiff’s evidence was that she was healthy except for the migraines she
experienced. She could not explain or remember why she had used up all of her
allotted sick time in the year before the accident.

[172]    
However, Dr. Anderson made no notation of headaches in the plaintiff’s
clinical records until November 26, 2009. Although I agree with the plaintiff’s
argument, that just because a medical notation is not made, it does not mean
that the fact does not exist: Edmundson v. Payer, 2011 BCSC 118.
However, one of the plaintiff’s major complaints is she suffers from headaches,
and in particular from migraine headaches which, according to the plaintiff’s
evidence, were triggered by neck, shoulder and back pain. In my opinion, given
these symptoms, Dr. Anderson would have made a notation.

[173]    
In his report, Dr. Robinson said:

By the nature of the symptoms of
headache and neck pain are subjective. There are no objective measures such as
a blood test or image that can document the presence, absence or magnitude of
these complaints. However, this is almost universally true in patients with
chronic headache disorders. The assessment of the headaches, which includes
diagnosis and impact, can only be determined by self-report.

[174]     The
plaintiff started physiotherapy on March 9, 2009 with Ms. Fraser. In her notes
from that day, Ms. Fraser wrote “no headaches.” However, at a further
physiotherapy session on March 19, 2009, the plaintiff told Ms. Fraser that
after her last physiotherapy session, she had a headache and then a migraine.
Ms. Fraser’s next record of a migraine is found in her notes from November 17,
2009. Ms. Fraser was frank and stated that she does not always record patients’
complaints of headaches.

[175]     The
plaintiff told Ms. Gallagher that after the accident she had “more frequent
migraine headaches.” She told Ms. Gallagher that she turned down work shifts
due to pain or migraine headaches.

[176]     The
plaintiff describes the migraine headaches from which she suffered as
debilitating, she could not go to work or look after her son, she had to go to bed,
she was nauseous and sometimes vomited, and she was very sensitivity to light
and sound. No one gave evidence of observing the plaintiff suffering these
headaches and the effects these headaches had on her. Mr. Halverson, who was
dating the plaintiff at the time of the accident and who started to live with
the plaintiff sometime in 2011, was not called to support the plaintiff’s
evidence.

[177]     I find
that any headaches that the plaintiff suffered as a result of the accident were
cervicogenic in nature and did not occur very often. If the plaintiff did have
migraine headaches, they did not increase in frequency as a result of the
accident. I find that the plaintiff has not been truthful about her headaches.

Continued Full-Time Employment as a LPN

[178]     The
plaintiff alleges that she can only work part-time because of this accident. As
a result, she terminated her graduated return-to-work program. At that time,
she was in a position to bump other employees at RIH due to her seniority and
as a result of her position on Sixth South being eliminated. There were two
positions where the plaintiff could have bumped other employees. These
positions were drawn to the plaintiff’s attention by her employer, Interior
Health, who suggested in its emails to her that it may be able to accommodate
her physical disabilities. However, there was no evidence before the court what
work those positions entailed and whether the plaintiff could have assumed
those positions.

[179]     Instead of
continuing in the graduated return-to-work program, the plaintiff chose to work
as a casual employee. There is no evidence from the plaintiff or anyone else as
to what positions she worked in as a casual employee. The question then is
whether she limited herself to Sixth South, or whether she worked other
positions in the hospital.

[180]    
The plaintiff told Dr. Lawrence on April 13, 2011 that:

… she has been working casually
on call on the same unit where she was working prior to the claim incident.

[181]     The
plaintiff told Ms. Gallagher that as a casual employee, she had limited herself
to working in the surgical ward because she “knew other LPNs who would be
willing to assist her with physically demanding tasks.”

[182]     The
plaintiff claims that when she did work full-time in her casual position, her
colleagues had to assist her because she could not perform certain tasks or
duties due to her neck and back injuries. Those duties were described as
charting, lifting IVs, and moving patients. No colleagues of the plaintiff were
called to give evidence to support the plaintiff’s allegations that they
assisted her with various tasks.

[183]     Tessa Lisa
Dempster gave evidence on behalf of the plaintiff. She is the patient care
coordinator at RIH and is in direct contact with all RNs and LPNs and does
rounds each day. She is responsible for overseeing RNs and LPNs on the sixth
floor, a position she has held for the past 13 years. She has worked with the
plaintiff. Ms. Dempster found the plaintiff to be a competent nurse, energetic
and efficient. She testified that the plaintiff had a good rapport with the
staff members and patients.

[184]     Ms.
Dempster was aware that the plaintiff, after her motor vehicle accident, was on
a graduated return-to-work program. During this graduated return-to-work
program, Ms. Dempster testified that the plaintiff was obviously not ready for
work. When she asked her why she was working, the plaintiff responded that she
was told she had to come.

[185]     Ms.
Dempster was not asked whether she observed other LPNs assisting Ms. Warner
during her graduated return-to-work program, or whether such assistance
continued when she worked on casual shifts on Sixth South.

[186]     The
plaintiff told Dr. Lawrence that she had bid on a full-time temporary position
at RIH so that she could increase her maternity benefits. This contradicts her
claim that she was unable to work full-time due to the injuries she suffered in
the motor vehicle accident. Interior Health records show that following the end
of the graduated return-to-work program, the number of hours the plaintiff
worked up to her maternity leave was as few as 22 hours bi-weekly and as high
as 77 hours bi-weekly. The records also disclose that the plaintiff worked as
much as three 12-hour shifts in a row, which is consistent with the plaintiff’s
testimony.

[187]     The
plaintiff testified that she turned down work shifts because of pain or
migraines. Interior Health does not keep records of those shifts that the
plaintiff turned down, and the plaintiff did not keep track of the shifts that
she turned down. The burden of proof is on the plaintiff to establish that, in
her casual position, more hours of work were available to her and that she
turned these shifts down due to the injuries she suffered in the motor vehicle
accident. She has not met this burden.

[188]     At the
time of the accident, the plaintiff was single, lived alone, and had full-time
employment as a LPN at RIH earning approximately $48,000.00 per year. Her
intention at the time of the accident was to continue in that employment as she
found it to be rewarding.

[189]     Since the
motor vehicle accident certain aspects of the plaintiff’s life changed that are
unrelated to the motor vehicle accident. The plaintiff is no longer single. She
and her partner, Mr. Halverson, live at his home and have a year old son, and there
are added responsibilities with respect to Mr. Halverson’s children. There is
no evidence as to the impact of these events on the plaintiff’s employment at
RIH.

[190]     The
plaintiff suffered moderate soft tissue injuries to the neck and shoulders. She
had some headaches cervicogenic in nature. From the evidence, I find that the plaintiff
should have been able to go back to work full time after her graduated
return-to-work program ended.

Nursing Ambitions

[191]    
The plaintiff provided evidence that she inquired into or researched the
RN program at TRU by downloading information from TRU’s website in August 2010.
Her evidence at trial was she enrolled in a biology course, which course she
had already taken while enrolled in her LPN courses. She did not complete the
course the second time because the symptoms from the injuries she suffered in
the motor vehicle accident interfered with her studies.

[192]    
The plaintiff did not apply to the RN program at TRU. Nor did she have
her LPN courses assessed and evaluated for credit towards the RN program
requirements, or even determine whether, as a LPN, she would enter the RN
program as a second year student. She provided the following answers at the
examination for discovery held on February 13, 2012:

Q.        Why would you want to then upgrade as an R.N.,
you said it was a natural upgrade, would you have to go to school to become an
R.N.?

A          Yes.

Q         What were you planning to do to go to school,
like what, was it a degree, was it a diploma?

A          I believe it’s a degree program.

Q         Had you looked into going to school?

A          Yes.

Q         And what kind of investigations did you do?

A          I investigated the different programs
available.

Q         And what were those programs available?

A          There are distance learning programs
available as well as classroom.

Q         And had you looked into what type of credit
you would get for your L.P.N. background?

A          No.

Q         Did you know how many years of school you
would need to qualify as an R.N.?

A          Not exactly.

Q         Did you have some time frame in mind when you
might want to start this retraining?

A          No.

[193]     If the
plaintiff had any serious ambition to enter the school of nursing, she would
likely have made inquiries after the completion of her LPN course and would
have started to complete the pre-requisites in order to fulfil her ambitions.
Instead, she has asked the court to believe that she started to fulfill this
ambition while suffering from injuries from the motor vehicle accident which
she claims have left her debilitated and unable to work. I do not accept this evidence.
Rather, I find that her online inquiries and enrolling in a biology course were
calculated acts intended to bolster her claim that the motor vehicle accident derailed
her plans to become a RN.

[194]     I find the
plaintiff had no ambitions to become a RN.

Past Wage Loss

[195]     I find
that as a result of the plaintiff’s injuries that she has suffered a past wage
loss. The defendants calculate the plaintiff’s past wage loss as follows:

[196]     That
figure takes into consideration the fact that the plaintiff would have been off
work in any event due to her tailbone injury. The plaintiff did not dispute the
calculation of that proposed loss. However, the plaintiff seeks an amount
representing the loss of benefits suffered during that period.

[197]     Tracey
Lynne Mooney from Interior Health gave evidence that the benefit package to
employees in the plaintiff’s position amounted to 26% of the total wages
received. Of that percentage, 14% relates to benefits. The plaintiff argues
that 14% of $56,255.00 is $7,875.70. Thus, a total loss of income, including
benefits, amounts to $64,133.00. Since these figures do not reflect various
shift differentials, such as nights, weekends, and statutory holidays, the
plaintiff is seeking $70,000.00 in lost wages.

[198]     The
defendants point out that the plaintiff had used up all her sick time in 2008, and
argue that this history or pattern would have continued. I do not accept this
position.

[199]     It was
open to the plaintiff to pay $461.00 per month for her benefits to continue. After
waiving her benefits three weeks after the accident, there is no evidence that
the plaintiff paid for these benefits in 2009 and 2010. There is no evidence
that the plaintiff paid out-of-pocket for medical, dental, or other items that
the benefits would have covered.

[200]     The
plaintiff failed to prove past lost wages in excess of $58,383.25. I find that
the plaintiff’s past wage loss is $58,383.25. I will leave it to counsel to
determine the appropriate deductions.

Non-Pecuniary
Damages

[201]    
The most convenient manner in which to address the plaintiff’s claim for
damages for loss of amenities, pain, suffering, and loss of enjoyment of life,
is to consider those factors set out in Stapley v. Hejslet, 2006 BCCA 34
and summarized by Madam Justice Felon in Fell v. Morton, 2012 BCSC 428:

[30]      An award of non-pecuniary damages compensates a
plaintiff for loss of amenities, pain, suffering, and loss of enjoyment of
life. In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of
Appeal outlined the factors a trial judge should consider when assessing such
damages:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

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

[202]     The
plaintiff is seeking an award of $100,000.00 for non-pecuniary damages, and the
defendants argue that the amount for non-pecuniary damages should be
$50,000.00.

[203]     The
plaintiff suffered soft tissue injuries to the neck, shoulders and upper back, which
were accompanied by some headaches. The plaintiff testified that at the time of
the accident she was an active and healthy (except for the occasional migraine)
woman in her late 20s.

[204]     Dr.
Anderson acknowledged that during the six weeks after the accident, the
plaintiff showed improvement.

[205]     Dr.
Anderson did not start receiving complaints from the plaintiff of sleep and
night disturbances until July 21, 2009, at which time Dr. Anderson prescribed
medication. By October 2009 the plaintiff was off her medication and was
sleeping.

[206]     Dr.
Anderson made no note of headaches until November 24, 2009, though she would
have been aware of complaints of headaches made by the plaintiff to Dr. Oyler.

[207]     Ms. West,
in March of 2010, stated that the plaintiff reported a significant decrease in
symptoms, measured as a 100% decrease in migraine headaches and brachium pain,
and a 90% decrease of paresthesias that she suffered, with symptoms returning
intermittently.

[208]     Dr.
Anderson found in 2009 and at times in 2010, during and after her graduated
return-to-work program, that the plaintiff had objective symptoms of neck and
shoulder injuries.

[209]     Dr. Boyce
observed in November 2009 that there was no medical reason as to why the
plaintiff was having such limited improvement and such extensive disability,
particularly in her neck.

[210]     Dr. Craig,
almost a year after Dr. Boyce’s observation, accepted the plaintiff’s
complaints of headaches and migraines, but at the same time acknowledged that
most of her complaints of pain were subjective.

[211]     The
plaintiff was able to participate in a graduated back-to-work program. She
continued her gym work-outs from February 2009 up to trial. She was able to
participate in three rehabilitation programs which required repetitive physical
exercise.

[212]     Just
before trial, the plaintiff told Ms. West that she could not perform the
exercises that she had performed previously. Yet the plaintiff did not give
this evidence.

[213]     There is
no medical explanation as to why the plaintiff, who was diagnosed with a
moderate soft tissue injury to the neck and shoulders and who has made
significant progress, developed anxiety, depression and sleeplessness, months
after the accident, yet during her pregnancy, made no complaints to her family
doctor about her neck and shoulder injuries. The plaintiff presents herself, as
it relates to her injuries, as if she was no better, if not worse, than right
after the accident.

[214]     There is
no evidence from anyone other than the plaintiff, which is vague at best, as to
the effect of the accident on her obligations requiring daily living, either
while she was living alone in her basement suite or and later while residing
with Mr. Halverson. Nor did anyone testify as to the effect on the accident had
on her ability to do housework and to fulfil other obligations of daily living.

[215]     In fact, the
plaintiff did not give specific details as to how the accident affected her
other than to give evidence that Mr. Halverson, for a period of one month or so
after the accident, came to her suite and looked after her by cooking and doing
other domestic chores for her. The only reference that the plaintiff made to
her daily living was vacuuming and carrying her son. Her evidence lacked
details as to when she encountered these difficulties and how often, and what
she had to do in order to complete daily activities.

[216]     There was
no evidence directly from the plaintiff as to what Mr. Halverson does for work,
whether he is at home or away from time to time, to what degree he participates
with the family, and any household activities that he may have assumed as a
result of the accident. The plaintiff told Dr. Robinson that Mr. Halverson had
been in business previously and was now a stand-up comedian.

[217]     Dr. Boyce
and Dr. Craig both stated that the injuries the plaintiff suffered would place
no limitations on her ability to complete activities of daily living or
household tasks.

[218]     The
plaintiff alleges that as a result of the accident, she isolated herself
socially. During this time, the plaintiff’s relationship with Mr. Halverson
flourished such that they decided to live together and have a child. There is
no evidence before me that her relationships with others suffered due to the
accident other than a general reference by the plaintiff to losing a college
friendship because of her mood. That person was not named, nor did the
plaintiff provide the particulars.

[219]     I find
that the plaintiff’s day to day activities and her social life have not been
permanently impacted by the accident.

[220]     The
plaintiff gave evidence as to a number of activities in which she participated
prior to the accident. Those activities bear repeating. They are hunting,
fishing, “quading”, wakeboarding, skiing, swimming and hiking. Other than the
plaintiff’s continued attendance at the gym at least five days a week and her
participation in aerobics and biking, the plaintiff testified she could no
longer participate in these activities.

[221]     The
plaintiff did not testify as to the extent that she participated in these
activities (i.e. weekly, monthly, or occasionally). She provided no evidence as
to her proficiency in these various activities other than she enjoyed
wakeboarding and snowboarding. She did not testify as to whether she
participated in these activities with others, or whether she did these
activities by herself.

[222]     The
plaintiff testified that she participated in hunting and fishing. She provided
no evidence as to whether she owns a gun or a fishing rod, or other hunting and
fishing equipment. She gave no evidence that when she participated in these
activities, she shot game and caught fish. The plaintiff stated that these
activities involved Mr. Nielsen. There is no evidence that the plaintiff
continued with these activities after she ceased living with Mr. Nielsen. Nor
is there evidence before the court that she tried to participate in these
activities after the motor vehicle accident.

[223]     The plaintiff’s
alleged loss of lifestyle remains a mystery.

PLAINTIFF’S POSITION

[224]     The
plaintiff relies on the following cases in seeking the award of $100,000.00 for
non-pecuniary damages:

Shapiro v, Dailey, 2012 BCCA 128

[225]    
In Shapiro v. Dailey, 2012 BCCA 128, the plaintiff was awarded $110,000.00 in non-pecuniary
damages. She suffered soft tissue injuries of the cervical, lumbar and sacral
spine, leaving her with a multitude of problems, such as cervical headaches and
periodic migraine headaches, chronic pain disorder, which manifested itself
into myofacial pain and post-traumatic fibromyalgia syndrome; depressive
symptoms; post-traumatic stress disorder; anxiety; and panic attacks. The court
found that she suffered from mild cognitive difficulties relating to
concentration and memory. At trial, Mr. Justice Grauer, at para. 59, described
the effects the injuries had on her life enjoyment:

[59] Whether some of these diagnoses overlap in terms of
their symptomatology matters not. What is clear is that Ms. Shapiro genuinely
suffers from the symptoms, and that the whole is greater than the sum of its
parts. This has wrought a profound change in every aspect of her life, from
interpersonal relationships with her family, friends and partner to her ability
to love, work, play, exercise, relax, sleep, and her ability to move forward
with her life. I find that her prognosis is not hopeless, but is extremely
guarded. Although Ms. Shapiro is the type of person who will work hard to
achieve as much improvement as is possible, I am satisfied that, on a balance
of probabilities, nothing more than a modest improvement can reasonably be
expected. Accordingly, at the age of 29, Ms. Shapiro faces a lifetime of
struggling with pain and fatigue in everything she does.

[226]     Those
findings were not disputed on appeal. The only issues on appeal were whether
the trial judge’s award of $900,000.00 for loss of future earning capacity was excessive,
and whether the award for future nanny services and homemaking was justified.

Olson v. Ironside, 2012 BCSC 546

[227]    
In Olson v. Ironside, 2012 BCSC 546, the plaintiff was awarded $100,000.00
for non-pecuniary damages. In this case, the court found that the plaintiff had
ongoing pain in the back and neck, headaches, migraine headaches, anxiety,
depression, and that she had become socially isolated and inactive. She had
been terminated from two different jobs as she could not physically perform the
duties of the job and she was frequently absent from work due to the symptoms
of her injuries. Prior to the accident, the court found the plaintiff had been
a model employee. Mr. Justice Josephson, at para. 14, stated:

[14] The plaintiff was an
entirely credible witness in describing the impact of the post-accident
symptoms on her life. Her evidence was corroborated by family, co-workers and a
close friend. Her mother describes the plaintiff as "a completely
different person" since the accident, i.e. a socially isolated couch
potato. There was no serious challenge in the cross-examination of these
witnesses. I accept their evidence. She suffers from sleeplessness, constant
headaches, frequent migraine headaches, ongoing back and neck pain, depression
and anxiety.

[228]     Mr.
Justice Josephson had evidence in this case to award the amount that he did. There
is no such evidence before me.

Ng v. Sarkaria, 2011 BCSC 1643

[229]     In Ng
v. Sarkaria, 2011 BCSC 1643, Mr. Justice Butler awarded Mr. Ng $95,000.00
for non-pecuniary damages. Mr. Ng suffered injuries to his back and neck. Low
back problems persisted and Mr. Ng was eventually diagnosed with herniations in
his discs, which the trial judge found were caused by the accident.

Felix v. Hearne, 2011 BCSC 1236

[230]    
In Felix v. Hearne, 2011 BCSC 1236, Mr. Justice Grist found the
following:

[33] Ms. Felix’s life has markedly changed following
the collision. She is now reliant on her daughters to assist in keeping her
home. She receives psychological therapy, is treated with anti-depressant
medication and has been prescribed Ativan and Valium to allow her to sleep. She
has not been able to work and has been forced to live off of disability
benefits and funds realized by re-mortgaging her home. The evidence from her
daughter and her two long-time friends who gave evidence on her behalf was that
her level of activity and previously bright outlook on life had markedly
changed. Her daughter was concerned that, at times, she seemed suicidal. She
said that she noted some improvement after she attended the pain clinic in the
spring of 2010 and that she seemed a little happier and better able to manage
her pain, but that she had regressed since and lacked focus and initiative. She
said she often appeared to be in pain, had become short tempered and withdrew
from contact with family and friends.

[34] Many of the same comments were made by her
friends who commented on the difficulty in getting her to attend social
functions, her lack of participation and stamina, and her fragile emotional
state.

[35] For a time, she formed a relationship with an
individual she met through a common friend, but they have since separated which
she attributed to her depression and inability to join in social activities he
wanted to participate in. She relates that she began to abuse alcohol to the
point she feared she was alcoholic.

[36] One aspect of her former life that she’s
attempted to maintain is her participation in soccer. This too, however, has
markedly changed. She no longer can play at her former position and now relies
on substitutions taking over for her on a regular basis. At times, she tries to
avoid having to play at all. She has discontinued her role in organizing
fundraising and other activities for the team and her daughters have taken this
over for her.

[37] Her other sporting activities have fallen away,
although she still tries to jog or walk, and to attend the local community gym
on a regular basis. Her doctor recommends that she continue with this as a
needed form of therapy.

[38] It is now six years
subsequent to the collision and, although there have been some areas of
recovery, there would appear to be, at best, only a modest hope for further
improvement.

[231]     Ms. Felix
was awarded $200,000.00 for non-pecuniary damages, $250,000.00 for past wage
loss, and $331,000.00 for loss of future earning capacity.

[232]     In
awarding this amount to Ms. Felix, Mr. Justice Grist had considerable evidence
on which to base his decision.

Mohan v. Khan, 2012 BCSC 436

[233]     In Mohan
v. Khan, 2012 BCSC 436, after considering the plaintiff’s failure to
mitigate and that she exaggerated her symptoms, the court awarded the plaintiff
$100,000.00. The court found that although much of the plaintiff’s complaints
were subjective, they were supported by a great deal of medical evidence.

Peers v. Bodkin Leasing Corporation, 2012 BCSC 271

[234]    
In Peers v. Bodkin Leasing Corporation, 2012 BCSC 271, the
plaintiff received non-pecuniary damages in the amount of $85,000.00. Mr. Peers
was 53 years of age and at the time of the accident had a physically demanding
job in the forestry industry. He was known as one of the best fastpitch ball
players on the Sunshine Coast and, according to witnesses, was good company, a
fun companion, and respectful of others. The court found that his job, and sports
and outdoor activities defined him. Mr. Peers suffered from mid and low back
injuries resulting in him losing his employment and his ability to participate
in other activities which he enjoyed. Madam Justice Humphries stated:

[19] Mr. Peers’ brother, Brian, Mr. Peers’ ex-wife,
and several friends and co-workers testified to the changes they have observed
in Mr. Peers since the accident. Their evidence was consistent – from an
outgoing, strong person who was the center of sports in the community, Mr. Peers
has become withdrawn. A relentless fisherman before, he will now just sit on a
log or go home early. He no longer plays fast pitch. All the witnesses say they
worry about his future. His brother says Mr. Peers is in a "dark
place" – the brothers were brought up to find their identities through
hard work and Mr. Peers no longer has that option open to him. Neither learned
to save money and Brian Peers assumed they would both work until they died.

…

[53] I am satisfied that
Mr. Peers made a determined effort not to let the pain interfere with the work
he loved, but it eventually proved too much for him, and he was force[d] to
quit. It may be that the shocks should be further investigated, and that Mr.
Peers should not be as frightened of the potential for disk herniation as Dr.
Kokan suggests. Nevertheless, I accept that pain from the accident was the
eventual cause of Mr. Peers’ inability to continue to work as a boom boat
operator and at physical jobs in general.

[235]     All of
these conclusions regarding Mr. Peers’ inability to pursue employment and his
various activities were based on evidence before the court, not only from Mr.
Peers but from others.

[236]     The cases
cited by the plaintiff are not helpful in determining the appropriate amount to
be awarded to the plaintiff for non-pecuniary damages. The injuries, and the effect
of those injuries on the plaintiff, are not similar to those of this plaintiff.

DEFENDANTS’ POSITION

[237]     The
defendants rely on a number of cases:

Fennell-Baker v. Baker, [1997] B.C.J. No. 827

[238]     In Fennell-Baker
v. Baker, the plaintiff was awarded $100,000.00 in non-pecuniary damages,
reduced to $50,000.00 for the plaintiff’s failure to mitigate and because the
plaintiff’s migraine headaches were a pre-existing condition.

Salzmann (Litigation guardian of) v. Bohmer, 2009 BCSC 1586

[239]     In Slazmann
(Litigation guardian of) v. Bohmer, 2009 BCSC 1586, the plaintiff, Ms.
Salzmann, was injured at age 10, and at the time of trial was about 20 years
old. She had injuries to her neck and shoulder area leaving her with "a
burning, tightening sensation". The diagnosis was that the plaintiff
suffered from chronic regional myofascial pain syndrome and a
soft tissue injury to the neck. The court reduced that award by 20% for the
failure of Ms. Salzmann to mitigate by not pursuing appropriate conditioning
and exercise programs. The award was reduced to $28,000.00.

Shusek v. Horning, 2009 BCSC 893

[240]     In Shusek
v. Horning, 2009 BCSC 893, the court was required to assess the plaintiff’s
injuries suffered in two accidents. At the time of the trial, the plaintiff was
in her first year of a nursing program. The plaintiff suffered from headaches,
neck pain, lower back pain, pain between the shoulder blades, and bilateral hip
pain. There was also occasional pain in her thigh, and she had headaches. The
plaintiff was a lifeguard and a swimming instructor and as a result of the
injuries, she found it difficult to obtain certain qualifications to pursue
summer jobs as a lifeguard or swimming instructor. Ms. Shusek was awarded non-pecuniary
damages in the amount of $50,000.00 for both accidents.

Fell v. Morton, 2012 BCSC 428

[241]    
In Fell v. Morton, 2012 BCSC 428, the plaintiff suffered from
migraine headaches which pre-dated the accident and pain from back and neck
injuries. Madam Justice Fenlon found:

[28] I find that prior to the accident Ms. Fell tended
to suffer regularly from neck and upper back pain and headaches that were
brought on by exertion. She sought regular massage therapy and chiropractic
treatment in relation to those symptoms. She also had a proclivity to develop
migraine headaches, and that condition meant she was susceptible to something
else triggering her headaches in future.

[29] Ms. Fell should not
be compensated for her pre-existing condition or the potential for it to
reoccur quite apart from the injuries sustained in the motor vehicle accident.

[242]    
In awarding Ms. Fell $65,000.00 for non-pecuniary damages, Madam Justice
Fenlon was able to conclude:

[35] By all accounts, Ms. Fell used to be a cheerful,
outgoing, enthusiastic, and exceptionally hard-working woman, who managed the
responsibilities of her own business, motherhood, and home without difficulty.
She worked hard during the week when she was on a project, but still had the
energy on weekends to do housework and recreational activities with her
husband, including dog walking, camping, and spin classes.

[36] Since the accident,
Ms. Fell’s injuries have caused her to be more irritable. She regularly spends
a day or two in bed with a migraine, unable to participate in the care of her
young children, their activities, or recreational outings with her husband.
After struggling to carry on as a first aid/craft services provider for two
years after the accident, Ms. Fell has accepted that she is unable to perform
at her previous level. She has sold her cube van and some of her equipment. She
is on maternity leave at this point, but intends to retrain as a lab
technician.

Lakhani v. Elliott, 2009 BCSC 1058

[243]     In Lakhani
v. Elliott, 2009 BCSC 1058, Ms. Lakhani was awarded $45,000.00 in
non-pecuniary damages. She had a pre-existing injury and her credibility was
found to be considerably lacking.

Thauli v. Gill, 2009 BCSC 1929

[244]     In Thauli
v. Gill, 2009 BCSC 1929, non-pecuniary damages were awarded to Ms. Thauli
in the amount of $50,000.00 for injuries she suffered to her knee, neck and
left upper back. Ms. Thauli, due to her injuries, was away from work for a
period of two years.

Conclusion

[245]     The
injuries suffered by the plaintiff in this motor vehicle accident consist of
moderate soft tissue damage to her neck and shoulders, a soft tissue contusion
to the chest, and a mild soft tissue injury to the lower back. The latter two
resolved themselves quickly.

[246]     The
plaintiff in this case has told health care providers that she has anxiety
attacks, post-traumatic stress disorder, and thoracic outlet syndrome. The
plaintiff has not been diagnosed with these disorders. Nor is there any
evidence of these difficulties other than her own evidence, except in the case
of thoracic outlet syndrome, for which Dr. Calder stated that she had some of
the symptoms, but on further testing ruled out such a diagnosis. Dr. Anderson
referred the plaintiff to Dr. T.G. Collier, a neurologist, who conducted nerve
conduction studies of both of the plaintiff’s arms. He found that they were
normal. He concluded that her neurologic examination was “unremarkable”. Dr.
Robinson diagnosed the plaintiff with thoracic outlet syndrome. However, he did
not test the plaintiff as did Dr. Collier to come to this conclusion. Dr.
Robinson did note that there was no evidence “that she had any radiculopathy or
myelopathy”.

[247]     In the
plaintiff’s submissions, she claims that she had tachycardia. There is no
evidence from a cardiologist or from any of the other medical experts as to
this diagnosis.

[248]     Based on
all the evidence that I have heard and the case law that has given me some
guidance, I award the plaintiff $50,000.00 for non-pecuniary damages.

LOSS OF FUTURE EARNING CAPACITY

[249]     The
plaintiff argues she should be awarded $444,480.00 for loss of future earning
capacity. This is based on the plaintiff hypothetically attaining her degree as
a RN from TRU in 2015, and working in that profession until age 70. After
taking into consideration that the plaintiff would work half time, she predicts
that she would earn $40,000.00 per year.

[250]     I
concluded that the plaintiff did not have ambitions to attain her RN. The
evidence before me is that the plaintiff has not considered alternate positions
and intends to continue working as a LPN at RIH. This is confirmed by Ms.
Gallagher in her report.

[251]    
The defendants argue that the loss of earning capacity should not be
calculated on the basis as proposed by the plaintiff, but rather based on a
loss of a capital asset. This was clarified by the Court of Appeal in Perren
v. Lalari, 2010 BCCA 140 as follows:

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

[252]    
I found that the plaintiff was able to work full-time after completing
the graduated return-to-work program. I assess the plaintiff’s loss of future earning
capacity as some loss of a capital asset. Therefore, as a result of the
injuries the plaintiff suffered, she may very well from time to time suffer a
future loss of income, despite being able to return to work as a LPN on a full
time basis.

[253]    
I award the plaintiff $40,000.00 for loss of future earning capacity.

MITIGATION

[254]     The
defendants claim that the plaintiff did not mitigate her damages by failing and
outright refusing to take counselling as recommended by Drs. Anderson, Boyce,
Craig and Lawrence.

[255]     In coming
to the awards given, I have considered any failure to mitigate.

COST OF FUTURE CARE

[256]     In the
plaintiff’s opening statement, she was seeking $50,000.00. In her closing
statement, she said she was seeking $25,000.00.

[257]     The only
recommendations that were made for future care were Botox treatments and
perhaps over-the-counter medication and counselling, the latter of which the
plaintiff has resisted. Dr. Robinson gave evidence as to the cost of Botox. I
concluded that the plaintiff’s migraine headaches had not been exacerbated by
the motor vehicle accident.

[258]     In order
that there be an award for cost of future care, there must be evidence of such.
There is no evidence here. Accordingly, I do not award anything for cost of
future care.

SPECIAL COSTS

[259]     Special
costs were first made known to the defendants at the case management
conference. The plaintiff seeks $7,464.49.

[260]     There
appears to be no agreement as to the amount of the special damages. It appears
the plaintiff assumed that the defendants would accept the amount. They did not.
I treat this as a misunderstanding. I stated at the end of the trial that the
plaintiff could come back before me and prove the special expenses. The
defendants can cross-examine the plaintiff on the special damages and provide
evidence to contradict those special damages.

COSTS

[261]     Unless
either the plaintiff or defendants make it known that they wish to address me
on the matter of costs, they must do so within 30 days of receiving these
reasons. If they do not, the plaintiff will have her costs under Appendix B,
Scale B of the Supreme Court Civil Rules.

DISPOSITION

[262]     I award
the plaintiff:

1)    $50,000.00 for
non-pecuniary damages;

2)    $40,000.00 for loss
of future earning capacity; and

3)    Costs.

“H.C. Hyslop J.”

HYSLOP J.