IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130124

Docket: M138024

Registry:
New Westminster

Between:

Shelagh Morag Westfield

Plaintiff

And

Matthew Lindstrom
and Melvin Richard Lindstrom

Defendants

Before:
The Honourable Mr. Justice Abrioux

Oral Reasons for Judgment

[1]            
THE COURT:

I         INTRODUCTION

[2]            
The plaintiff seeks damages for injuries arising out of a motor vehicle Accident
which occurred in New Westminster, British Columbia on September 7^th,
2010 (the “Accident”).  These include general damages, past wage loss, loss of
housekeeping capacity, special damages and cost of future care.  There is no
claim for future loss of earning capacity.

[3]            
The plaintiff’s motor vehicle was struck from the rear by a vehicle
owned and operated by the defendants.  Liability is admitted.

II        BACKGROUND

[4]            
The plaintiff was born in Winnipeg on August 7^th, 1964.  She
moved to the Lower Mainland when she was five years old and attended high
school in Chilliwack.  She married her husband 24 years ago and they live in
their house in Burnaby with their 18-year-old daughter Corey and Dustin, their
20-year-old son.

[5]            
The plaintiff was hired by the Burnaby School Board in 1997 as a student
supervisor.  She was able to pursue this occupation and still take care of her
daughter who was only three years old at the time.  This led to her beginning
to teach preschool in 2000.  In January of 2005 she made the transition to
working as an educational assistant with special needs children.  This position
requires the plaintiff to manoeuvre children in wheelchairs and assist with
lifting and personal care.  She also performs some physiotherapy.

Medical History Prior to the Accident

[6]            
The plaintiff broke her ankle in 2006.  She underwent an appendectomy in
2008 and a hysterectomy in 2009.  The plaintiff’s evidence is that she was
fully recovered from these procedures at the time of the Accident.

[7]            
The plaintiff had a pre-Accident history of degenerative disc disease
which caused occasional back pain prior to the Accident.

[8]            
The plaintiff was taking medication at the time of the Accident.  These
included synthroid for her hypothyroid condition.  She also suffered from
severe allergies and used an inhaler for her asthma.

[9]            
The plaintiff’s family physician for many years was Dr. Ross.  She retired
in May of 2012, and the plaintiff began seeing her new family doctor, Dr.
Holman at that time.

[10]        
In the month leading up to the Accident, the plaintiff described her
health as “good.”  She had occasional aches in her low back with radiating pain
down her right leg every three to four months, but these did not impact her
ability to do things at work or around the house.  She had not had any symptoms
in her right shoulder, neck, upper back or arms before the Accident.

[11]        
Prior to the Accident the plaintiff was working to improve her fitness
by getting back into shape.  She was attending a gym called Curves six days a
week.  She was also doing aquasize twice a week and was going for walks with
her husband.  When the plaintiff was at Curves, she would do a circuit with
different machines which targeted different muscle groups.  She testified that
before the Accident she was doing a great deal of repetitions on the machines. 
She enjoyed these activities.  They increased her energy level and self-esteem.

[12]        
It was the plaintiff’s evidence that prior to the Accident she performed
approximately 95 percent of the housework.  She also did some gardening and
cared for her mother-in-law, who lived in the family home.

[13]        
Her activities around the home included doing the laundry, bedding and
planting flowers, scrubbing the floors and grocery shopping.  Before the Accident
she was able to lift heavy objects.

[14]        
The plaintiff’s husband, Kerry Westfield, testified that before the Accident
his wife was “full of life and ready to get out there and have fun.”  They
would also swim a great deal together.  He enjoyed attending at the gym with
his wife because she knew how to do weights.  He confirmed that before the Accident
the plaintiff performed most of the household activities inside the home.  She
would also assist in the yard work.

[15]        
The plaintiff also had a pre-Accident respiratory condition which
involved vocal cord dysfunction and asthma.

[16]        
Cory Westfield’s evidence was to the effect that prior to the Accident
her mother was happy and bubbly.  They had an excellent relationship and did
many activities together.  In direct examination she stated that prior to the Accident
virtually everything in the house was done by her mother.  On cross-examination
she said her mother’s breathing problems prior to the Accident would affect the
plaintiff’s ability to perform household activities approximately 40 percent of
the time.

The Plaintiff’s Respiratory Condition

[17]        
It was the plaintiff’s evidence that the respiratory condition was under
control as at the time of the Accident.  In the fall of 2010, however, she had
an allergic reaction after eating some strawberries at work.  She had to attend
the hospital and missed two weeks of work.  In January 2011 the plaintiff
inhaled a deodorizer at work.  This incident severely aggravated her
respiratory condition.  Once again she was hospitalized and was then placed on
long-term disability.  The plaintiff has been to the hospital at least 12 times
for her respiratory condition since the Accident.

[18]        
The plaintiff stated that this condition causes her vocal cords to go
into spasm.  This is followed by episodes of violent coughing, which then
trigger her asthma.  Initial treatment consists of her using an inhaler or
puffer, but she will frequently end up in the hospital.  When these violent
coughs take place the plaintiff experiences a sharp shooting pain in her neck
and shoulder.

[19]        
The plaintiff testified that her respiratory condition continues to
affect her ability to a varying degree to perform household activities.  At
present, she has approximately three good days a week.  On these days she can
do laundry, grocery shopping and other household tasks; on bad days she can
only make a meal or do the dishes and even then is obliged to take breaks.  Her
husband’s evidence was to the effect that his wife’s condition in this regard
appeared to be improving.

III        THE ACCIDENT

[20]        
The plaintiff’s vehicle was struck from the rear by the defendant’s
pick-up truck.  Her 1989 Chrysler New Yorker was written off.

IV       THE ACCIDENT INJURIES

[21]        
The plaintiff testified that at the Accident scene she was shaking,
crying and was in shock.  She drove her vehicle home.  At that time she felt
pain in her neck and right shoulder as well as across her shoulder blades.  Mr.
Westfield then drove her to the Royal Columbian Hospital.

[22]        
In the Accident’s immediate aftermath the plaintiff also experienced
some pain in her lower back and right knee.  She had numbness and tingling down
her right arm and into her fingers.

[23]        
At the Royal Columbian Hospital she was advised not to work for two days
and to consult her family physician.  Painkillers were prescribed and
physiotherapy was recommended.

[24]        
For the first few days after the Accident the plaintiff felt very stiff
and sore.  She had pain in the right side of her neck and upper back and into
her right shoulder and arm.  She also had headaches.  She was unable to sleep
due to the pain and discomfort.  It was painful for her to lie on her right
side.

[25]        
The plaintiff first saw Dr. Ross on September 9^th, 2010, that
is, two days after the Accident.  She felt stiff and sore and had a headache. 
Dr. Ross diagnosed the plaintiff with having a soft tissue injury and
prescribed Advil, Voltaren and physiotherapy.

[26]        
At this time the plaintiff returned to work.  She had difficulty moving
a special needs student who was assigned to her care.  While performing some
physiotherapy on this student she also needed assistance.  She was frustrated
with the fact she could not perform her duties to her usual standard.

[27]        
The plaintiff returned to see Dr. Ross on September 30^th,
2010.  She testified that at this point in time she was experiencing neck and
shoulder pain, pain in between the shoulder blades, together with some pain in
the lower back.  She also experienced numbness and tingling in her right arm. 
She continued to feel very stiff and sore.  Dr. Ross advised her to continue
with physiotherapy and taking the Voltaren and Aleve.  The plaintiff was taking
Aleve twice a day for pain and Voltaren two to three times a day.

[28]        
The plaintiff attended 30 physiotherapy sessions from September 20^th,
2012, to the end of that calendar year.  She noticed significant improvement of
her symptoms, but they had not resolved entirely.

[29]        
By January 2011 the plaintiff considered her low back condition to have
returned to the pre-Accident state.  She was still experiencing headaches, neck
pain, upper back and shoulder pain, with numbness and tingling into her right
arm.  She continued to require assistance with household duties, such as making
the beds and grocery shopping.  She was frustrated with the limitations her Accident
injuries were having on her daily activities.

[30]        
In January of 2011, Dr. Ross advised the plaintiff that she could return
to exercising but to start three times a week.  The plaintiff did this.  She
avoided certain machines which she believed would aggravate her shoulder. 
During one of these exercise sessions she suffered what the defendants now
accept was an aggravation of her Accident-related shoulder injury.  This caused
her to return to see Dr. Ross, who advised her to resume physiotherapy and to
continue taking the Aleve and Voltaren.  After this incident the plaintiff was
consuming Aleve and Voltaren on a daily basis.  She continued to have
difficulties doing her household tasks.

[31]        
The plaintiff attended six more physiotherapy sessions in 2011.  They
were then discontinued on Dr. Ross’ advice.  This was due to the plaintiff’s
respiratory condition.

[32]        
The plaintiff’s attempts in 2011 to undergo further rehabilitation
treatments with a kinesiologist were also affected by her respiratory
condition, in that she was unable to complete a recommended program.  For the
remainder of that year she did stretches and exercises at home which had been
recommended by her physiotherapist.

[33]        
In the spring of 2012, the plaintiff was referred by Dr. Ross to the
orthopaedic specialist Dr. Moola.  She attended Dr. Moola’s office in August of
2012 and was assessed by his locum, Dr. Lopez who administered a steroid
injection to the shoulder and recommended further physiotherapy.  The injection
provided temporary relief for five weeks to the back of the shoulder before the
pain returned.  There was no lasting improvement.  After seeing Dr. Lopez
the plaintiff attended four kinesiology sessions.

[34]        
In September 2012, the plaintiff ceased being on long-term disability
and returned to work.  She testified she was able to perform her duties since
the child in her care had learned to walk over the summer.  Her shoulder still
caused her difficulty and she was unable to lift the child without assistance.

[35]        
The plaintiff’s return to work at this time was short lived.  Her
respiratory problems once again became severe.  She was placed on long-term
disability which has continued to the time of trial.

The Plaintiff’s Current Accident-Related Symptoms

[36]        
Ms. Westfield testified she currently has pain in the base of her neck
on the right side one or two times per week.  She described this as a sharp
shooting pain.  On other occasions her muscles will go into spasm and ache.

[37]        
The plaintiff testified she has pain in her shoulder every day.  It is across
the top and front of her shoulders and down the back.  On some days it is a
dull ache; on others there is a sharp shooting pain in the front of her
shoulder.  This shoulder pain is aggravated when it is cold or she is
performing a particular activity such as making beds or when she is required to
move the shoulder a certain way.  These limitations are caused by the
shoulder.  When it is cold she takes Aleve every day.  She is unable to sleep
on her right side and now sleeps on the couch since she is fearful her husband
will roll towards her and make contact with the shoulder.  When her shoulder
pain is bad she will have headaches.

[38]        
The plaintiff stated she still experiences upper back pain between her
shoulder blades.  This occurs once a week except when the weather is cold, when
it happens every day.

[39]        
The plaintiff continues to have numbness and tingling in her arms when
her shoulder pain is bad.  During the summer months this occurs once a week.

[40]        
I noted above that the plaintiff no longer sleeps in the same bed as her
husband.  In addition, when the plaintiff’s husband hugs her it hurts.  Mr.
Westfield testified their relationship has changed as a result of the Accident. 
When he tries to hug her, his wife is pushy and jumps away.  He stated the Accident
has been tough on his wife and she is not the same person.  Her movement and
fluidity are not the same, and she does not have the “get up and go and the
easygoing attitude” she had before the Accident.  Ms. Westfield’s daughter
testified her mother has become more frustrated and irritable since the Accident.

[41]        
The plaintiff is unable to do all of the household duties that she once
did.  This is in part due to her respiratory condition but also to her right
shoulder pain.  She no longer scrubs in the bathrooms or does the floors. 
Other household activities aggravate her shoulder pain.

[42]        
The plaintiff’s husband and daughter assist her with lifting, reaching
and carrying heavy items.  An example is when Cory Westfield accompanies her
mother to do the grocery shopping.  Both Mr. Westfield and Cory now do more
around the house to help.  The plaintiff stated that when she is not having a
bad day with her respiratory condition she is now able to do about 70 percent
of the housework.  This causes her to be frustrated.

V        THE MEDICAL EVIDENCE

A.  Dr. Ross

[43]        
Dr. Ross provided two medicolegal reports and gave evidence by way of
video deposition on January 8^th, 2013.  In her first report dated
April 21^st, 2011, Dr. Ross states:

In summary, Ms. Westfield
sustained a flexion extension injury of her neck and back and soft tissue
injury to her right shoulder in the motor vehicle Accident of September 7,
2010.  Despite numbness of her right hand, imaging showed no disc abnormality
of her cervical spine.  Imaging did show degenerative changes in her sacroiliac
joints and lumbar spine and mild disc bulging at L2-3, L3-4 and L4-S1, with
foraminal narrowing on the right of L3-4 and bilaterally at L4-S1.  Her fifth
lumbar vertebra was sacralised.  She was initially very tender in her neck and
back, but with physio has made good improvement.  She had a minor setback when
she attended Curves and had to return to physio.  Significant lung disease and
two hospitalizations have interrupted her treatment at physio.  When last
evaluated on April 8, 2011, she was making good improvement, with most of her
complaints located in her neck and trapezius muscles.  She had transient
radicular pain in her right leg, which has settled.  She had no complaints prior
to the motor vehicle Accident with her degenerative lumbar spine and sacroiliac
joints.  I anticipate that she will make a full recovery within the limitation
of her underlying degenerative changes in her lumbrosacral spine and sacroiliac
joints.

[44]        
Dr. Ross’ second report commented on the lack of any significant
improvement in Ms. Westfield’s condition since the time the first report was
authored.

B.  The Orthopaedic Specialists

[45]        
The plaintiff has been assessed by three orthopaedic surgeons.  Dr.
Moola and Dr. Day were both qualified to give evidence as orthopaedic surgeons
with a specialty in shoulders.  Dr. Fuller was qualified to give evidence as an
expert in orthopaedic surgery.  The opinions of these experts vary to some
extent.

Dr. Fuller

[46]        
The plaintiff was examined by Dr. Fuller on July 13^th, 2011. 
He authored two medicolegal reports.  Reduced to its essentials, his opinion
was to the effect the plaintiff’s prognosis for further recovery was guarded
and conservative treatments would not assist her.  In cross-examination Dr.
Fuller indicated he did not agree that surgery was appropriate and would not
recommend surgery for Ms. Westfield or himself for that matter if he were in a
similar situation.

Dr. Day

[47]        
At the request of the defendants, the plaintiff was assessed in October
2012 by Dr. Brian Day, an orthopaedic surgeon with a specialty in shoulders and
knees.  He was of the opinion surgical treatment is rare for individuals who
have similar ongoing symptoms as the plaintiff’s.  Insofar as Dr. Moola’s views
regarding surgery for the plaintiff are concerned, Dr. Day indicated that while
he was of the view surgery was an option, further improvement by way of surgery
was unlikely.

Dr. Moola

[48]        
The plaintiff was assessed by Dr. Moola in November 2012.  The plaintiff
had initially been seen by Dr. Moola’s locum Dr. Lopez.  Dr. Moola was of the
view surgery was an option for the plaintiff, but noted at p. 6 of his report:

Of course based on her respiratory condition and history of
respiratory crises, as well as cardio respiratory arrest in 2011, surgical
management would not be lightly recommended, as there would be a considerable
risk to life.

[49]        
Dr.  Moola described the potential of surgery as follows at p. 7 of his
report:

Surgery would consist of a diagnostic
arthroscopy of the shoulder, subacromial bursectomy and acromioplasty, as well
as likely an AC joint resection, pending the result of diagnostic AC joint
injections.

[50]        
Dr. Moola and Dr. Fuller are both of the view the plaintiff is unlikely
to have any further improvement with conservative treatment.  Dr. Day’s opinion
is to the effect conservative measures typically provide improvement in these
types of cases and the plaintiff may benefit from a further corticosteroid
injection into the shoulder.

[51]        
Dr. Fuller and Dr. Day are of the opinion there is little likelihood of
improvement in the plaintiff’s condition without surgery.  Dr. Moola, on the
other hand, is of the view that if the plaintiff were to undergo surgery, there
is an 80 to 85 percent likelihood of some improvement.  All three orthopaedic
surgeons agree that surgery is unlikely to result in a complete resolution of
the plaintiff’s symptoms.  In fact, on cross-examination Dr. Fuller went so far
as to say surgery could actually make the plaintiff’s shoulder worse.

[52]        
There is no real difference of opinion between the specialists with
respect to a prognosis.  Dr. Day’s opinion is that Ms. Westfield would benefit
from an exercise program and may also benefit from a further shoulder
injection.  He is of the view these symptoms will most often respond to this
type of regime.  Dr. Moola and Dr. Fuller agree with Dr. Day on this issue
but stated that two years post Accident conservative measures are less likely
to have a significant impact on the plaintiff’s ongoing complaints.

[53]        
The plaintiff recommenced treatment with a kinesiologist in November of
2012.  She has completed 16 of 18 sessions.  She stated she has not had any
improvement in her symptoms.

[54]        
The plaintiff intends to meet with Dr. Moola in the near future in order
to have a further cortisone injection and discuss surgery.  She plans to follow
Dr. Moola’s recommendations.  If, notwithstanding her respiratory condition, he
is of the view she should proceed with the operation, she will likely have it
performed.  She testified she is looking for a way to decrease the pain in her
shoulder so she can do more.

[55]        
The expert evidence, however, was also to the effect that due to the
plaintiff’s respiratory condition the risk associated with a general anaesthetic
would have to be discussed with an anesthesiologist prior to the decision being
made.

VI       FACTORS TO BE
CONSIDERED IN ASSESSING THE PLAINTIFF’S CREDIBILITY

[56]        
The defendants raise the plaintiff’s credibility as an issue.  In Buttar
v. Brennan, 2012 BCSC 531 at paras. 24 and 25, I stated:

[24]      In a case such as this where there are little, if
any, objective findings except some minor degenerative changes in the neck,
back and knee, the following should be taken into account by the trier of fact:

•  the assessment of damages in
a moderate or moderately severe soft tissue injury is always difficult because
the plaintiffs are usually genuine, decent people who honestly try to be as
objective and factual as they can.  Unfortunately every injured person has a
different understanding of his own complaints and injuries, and it falls to
judges to translate injuries to damages Price v. Kostryba (1982), 70
B.C.L.R. 397 at 397 (S.C.);

•  the court should be
exceedingly careful when there is little or no objective evidence of continuing
injury and when complaints of pain persist for long periods extending beyond
the normal or usual recovery (Price at 399);

•  an injured person is entitled
to be fully and properly compensated for any injury or disability caused by a
wrongdoer.  But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence — which could be just his own
evidence if the surrounding circumstances are consistent — that his complaints
of pain are true reflections of a continuing injury (Price at 399);

•  the doctor’s function is to
take the patient’s complaints at face value and offer an opinion based on
them.  It is for the court to assess credibility.  If there is a medical or
other reason for the doctor to suspect the plaintiff’s complaints are not
genuine, are inconsistent with the clinical picture or are inconsistent with
the known course of such an injury, the court must be told of that.  But it is
not the doctor’s job to conduct an investigation beyond the confines of the
examining room Edmondson v. Payer, 2011 BCSC 118 at para. 77, aff’d 2012
BCCA 114;

•  in the absence of objective
signs of injury, the court’s reliance on the medical profession must proceed
from the facts it finds, and must seek congruence between those facts and the
advice offered by the medical witnesses as to the possible medical consequences
and the potential duration of the injuries Fan (Guardian ad litem of) v.
Chana, 2009 BCSC 1127 at para. 73;

•  in a case of this kind care
must be taken in reaching conclusions about injury alleged to have continued
long past the expected resolution.  The task of the court is to assess the
assertion in light of the surrounding circumstances including the medical
evidence.  The question is whether that evidence supported the plaintiff’s
assertion and, if not, whether a sound explanation for discounting it was given
Tai v. De Busscher, 2007 BCCA 371 at para. 41.

[25]      In light of the above, an assessment of the
plaintiff’s credibility is critical:

The test must reasonably subject
his story to an examination of its consistency with the probabilities which
surround the currently existing conditions.  In short, the real test of the
truth of the story of a witness in such a case must be its harmony with the
preponderance of the probabilities which a practical and informed person would
readily recognize as reasonable in that place and in those conditions.

Faryna v. Chorny, [1952] 2
D.L.R. 354 at 357.

[57]        
A person’s own perception should not lead to a finding of disability. 
Some expert medical evidence is always necessary to assist the trier of fact on
this issue: D.E. v. Unum Life Insurance Company of America, [1999]
B.C.J. No. 1213 (B.C.C.A.) at para. 86.

VII      FINDINGS OF FACT/CONCLUSIONS ON THE EVIDENCE

[58]        
I make the following findings of fact based on my consideration of the
evidence, both lay and expert, as a whole:

a.         prior
to the Accident the plaintiff had occasional difficulties with her low back. 
In addition, she had degeneration in her right shoulder area.

b.         the
plaintiff also suffered from asthma and had respiratory problems, which
affected her daily living activities to various degrees from time to time. 
These difficulties made her more susceptible to developing a more serious
condition in the future.  That in fact occurred after the Accident.  The
development of the respiratory condition to its current stage which the
plaintiff concedes is “serious and disabling,” plays an important role in her
day-to-day functioning and ability to enjoy the amenities of life.

c.        the
plaintiff sustained various soft tissue injuries in the Accident.  It is also
likely she sustained an injury to the AC joint in the right shoulder.  Although
the plaintiff has recovered from certain of these injuries she has ongoing pain
and discomfort to her right shoulder, with associated discomfort in her neck,
which is likely permanent.

d.         the Accident
injuries affected the plaintiff’s “original position”, that is, the state of
her health and its effects on her functioning prior to the Accident.  This
original position included a right shoulder with degenerative changes.

e.         although
the plaintiff has indicated she would be prepared to undergo an operation to
her right shoulder if that were recommended to her, she has not established
that recommendation is likely to occur.  There is evidence the operation could
pose a significant risk to her life.  Quite understandably, the plaintiff
testified she would not undergo the surgery if there were in fact such a risk
to her.  There was no evidence from an anesthesiologist to the effect the
plaintiff’s respiratory condition would not in fact result in a significant
risk to her life were she to undergo an operation which involved a general
anesthetic.  This is what would likely occur in this case.

f.          while
the plaintiff does have some ongoing pain and restriction to her shoulder which
is likely to be permanent, the effect of the ongoing Accident injuries plays a
considerably less negative role in her day-to-day functioning than do the
ongoing effects of her serious respiratory condition.

g.         the
plaintiff has downplayed to some extent the respective contributions to her
current state of health caused by the Accident injuries on the one hand and the
respiratory condition on the other.

h.         notwithstanding
this, the injuries sustained in the Accident do affect, to some extent, the
plaintiff’s current ability to function and the quality of her life generally. 
I accept the plaintiff’s evidence and that of her family members that she is no
longer as happy and outgoing as she was prior to the Accident.  I do not,
however, accept that this state of affairs is entirely due to the injuries
sustained in the Accident.  The effect of the respiratory condition on the
plaintiff’s life, which includes being the sole cause of her inability to work
in a position which provided her with great personal satisfaction as a special
needs educational assistant, also contributes to her current psychological
state.

i.          the
plaintiff has made significant recovery from the effects of the injuries
sustained in the Accident.  This occurred within approximately 18 months to two
years after the Accident.  She is left, however, with ongoing aches and pains
to her upper back and right shoulder area.  These will continue indefinitely to
some degree.  The ongoing effects of the injuries sustained in the Accident also
affect to some degree her ability to perform certain household tasks.

VIII     ASSESSMENT OF DAMAGES

A.  Introduction

[59]        
In Dhaliwal v. Tomelden, 2010 BCSC 612, Russell J. stated:

[148]    The role that damages plays is to place the
plaintiff, as much as possible, in his original position. It is not the
obligation of the defendant to put the plaintiff in a better condition than he
was in. As noted in Athey v. Leonati, [1996] 3 S.C.R. 458 at 473-474,
140 D.L.R. (4th) 235, per Mr. Justice Major:

The defendant is liable for the
injuries caused, even if they are extreme, but need not compensate the
plaintiff for any debilitating effects of the pre-existing condition which the
plaintiff would have experienced anyway. The defendant is liable for the
additional damage but not for the pre-existing damage. … Likewise, if there
is a measurable risk that the pre-existing condition would have detrimentally
affected the plaintiff in the future, regardless of the defendant’s negligence,
then this can be taken into account in reducing the overall award. … This is
consistent with the general rule that the plaintiff must be returned to the
position he would have been in, with all of its attendant risks and
shortcomings, and not a better position.

[149]    Also, as noted by the Court of Appeal in T.W.N.A.
v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at para. 28:

[28]. …. a pre-existing
condition, whether it is quiescent or active, is part of the plaintiff’s
original position.

The Court goes on, at para. 48, to say:

[48]. …. Whether manifest or not,
a weakness inherent in a plaintiff that might realistically cause or contribute
to the loss claimed regardless of the tort is relevant to the assessment of
damages. It is a contingency that should be accounted for in the award.
Moreover, such a contingency does not have to be proven to a certainty. Rather,
it should be given weight according to its relative likelihood.

[60]        
It is within the context of these legal principles and the findings of
fact I have made that the plaintiff’s damages should be assessed.

B.  Non-Pecuniary Damages

[61]        
The plaintiff seeks an award for non-pecuniary damages in the range of
$75,000.  The defendants submit an appropriate amount would be $40,000, which
should then be reduced to $32,500 to take into account the effect of the
plaintiff’s respiratory condition.  This would also take into account the fact
the incident in January 2011 aggravated her right shoulder, that her vocal cord
dysfunction and respiratory problems interfered with her rehabilitation and led
to deconditioning and to take into consideration the pre-existing symptomatic
degenerative low back pain.

[62]        
I was referred to certain authorities by both parties.  These included Juraski
v. Beek, [2011] B.C.J. No. 982; Szymanski v. Morin, 2010 BCSC 1; Pratt
v. Barlow, 2008 BCSC 1764; and Dial v. Grewal, 2010 BCSC 759, by the
plaintiff.

[63]        
I was also referred to Verhnjak v. Papa, [2005] B.C.J. No. 1714; Bhadlawala
v. Baxter, [2012] B.C.J. No. 507; Sandhar v. Rolston, 2012 BCSC 495,
and a recent decision of this court, Rozendaal v. Landingin, 2013 BCSC
24, by the defendants.

[64]        
As was stated by Holmes J. in Rozendaal v. Landingin at paras. 77
and 78:

[77]      Non-pecuniary damages try to compensate a plaintiff
for the pain and suffering and loss of enjoyment of life associated with the
injury.  These damages are not restitution, which is impossible for a
non-pecuniary loss, but attempt to make up through money for a loss which
cannot be replaced in any direct way.  They provide “substitute pleasures and
amenities to make the life of the injured person more bearable”: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 97 (S.C.), McLachlin J. (as she then
was).

[78]      A court assessing non-pecuniary damages must
consider the individual situation of the plaintiff, and the extent to which
money can provide solace: Milina at para. 262.  In Stapley v. Hejslet,
2006 BCCA 34, Kirkpatrick J.A. at para. 46 set out the factors that a court
should consider …

I do not intend to set out in
these reasons for judgment the non-exhaustive list of factors referred to by
the Court of Appeal in Stapley v. Hejslet.  They are well known.

[65]        
In Rozendaal, Holmes J. went on to state in paras. 79 and 80:

[79]      The compensation awarded should be fair to all
parties.  Awards made in comparable cases provide a rough but helpful guide for
the measure of fairness, although each case depends on its own unique facts: Trites
v. Penner, 2010 BCSC 882 at paras. 188-189.

[80]      The assessment of non-pecuniary damages is
necessarily influenced by the individual plaintiff’s personal experiences in
dealing with his injuries and their consequences, and the plaintiff’s ability
to articulate that experience: Dilello v. Montgomery, 2005 BCCA 56 at
para. 25.

Madam Justice Holmes then refers
to the passage from Price v. Kostryba I noted earlier in these reasons
for judgment.

[66]        
On the facts of this case, the plaintiff’s non-pecuniary damages must be
considered within the context of the ongoing serious respiratory difficulties
she is experiencing and which are not causally related to the Accident.

[67]        
The plaintiff also claims damages for loss of household capacity.  The
issue arises as to whether this claim, if it is properly compensable, should be
included in the award for non-pecuniary damages or form the basis of a separate
award.

[68]        
The plaintiff submits an award of $5,000 to $10,000 for loss of
housekeeping capacity is appropriate in this case.  Alternatively, she submits
an award of non-pecuniary damages at the higher end of the range is appropriate
to compensate her for ongoing loss of housekeeping capacity.  This was the
approach taken in Szymanski.

[69]        
The defendants point to the evidence given by the plaintiff’s husband
and daughter to the effect that they assist the plaintiff in reaching for
items, carrying bags of groceries, doing certain household duties and the
like.  They submit it is appropriate for the plaintiff’s family to assist with
housekeeping in their family home and they should not have to compensate the
plaintiff for this separate head of damages.

[70]        
In Star v. Ellis, 2008 BCCA 164, Mackenzie J.A. stated that for
an award under this head of damages to be made, the housekeeping needed to be
sufficiently extensive or related to the injuries.  The defendant submits the
type of work which the plaintiff’s family assists with is neither sufficiently
extensive nor related to the injuries caused by the Accident.

[71]        
In my view, the type of assistance provided to the plaintiff by her
family members is sufficiently extensive to justify a modest award under this
head of damages.  The approached followed in Szymanski is appropriate in
this case.

[72]        
I conclude the effect of the plaintiff’s injuries in this case, while
generally comparable to those in Rozendaal and Bhadlawala, are
somewhat more severe insofar as the day-to-day enjoyment of life and ability to
function is concerned.  I award the plaintiff $50,000 under this head of
damages, which includes $5,000 for loss of past and future loss of housekeeping
capacity.

C.  Past Wage Loss

[73]        
Net past wage loss is agreed to in the amount of $263.39.

D.  Special Damages

[74]        
The amount of out-of-pocket expenses incurred by the plaintiff after the
accident are agreed to at $1,276.  These related primarily to therapy
treatments.  The defendants accept that the treatments incurred in the
aftermath of the Accident to January 2011 and the gym incident in January 2011
to April 2011 are causally related to the Accident.  Accordingly, they accept
the sum of $1,112 under this head of damages.  They do not, however, accept
that the remainder of the claim is their responsibility.  They submit the
further sessions were the result of intervening health issues including periods
of inactivity associated with Ms. Westfield’s respiratory condition.  I
disagree.

[75]        
On the basis of the medical evidence which I have summarized above and
Dr. Day’s evidence that some form of conservative treatment was warranted, I
conclude it was reasonable for the plaintiff to undergo all of the treatments
for which she now claims reimbursement.  I award special damages in the total
amount claimed, being $1,266.

E.  Cost of Future Care

[76]        
In Erickson v. Sibble, 2012 BCSC 1880, Ballance J. summarized the
principles which apply to a claim for damages for cost of future care:

[315]    Ms. Erickson claims $25,000 for her future cost of
care.  She submits that she derived this figure from an extrapolation of her
claim for special damages, but gave no details as to the underpinnings of that
extrapolation.

[316]    The purpose of awarding damages for the cost of
future care is to compensate for a financial loss reasonably incurred to
sustain or promote the mental and/or physical health of an injured plaintiff. 
The cost must be justified as reasonable in the sense of being medically
required or justified, and in the sense that the plaintiff will be likely to
incur them based on the evidence.  In Kuskis v. Tin, 2008 BCSC 862, the
Court summarized the relevant principles in relation to a claim for cost of
future care at paras. 163-164:

An award for the cost of future
care is notional and imprecise in nature: Strachan (Guardian ad Litem of) v.
Reynolds, 2006 BCSC 362.  The court must consider evidence regarding what
care is likely in the injured person’s best interest and calculate its present
cost, with appropriate adjustment for contingencies in all of the circumstances
of the case: Courdin v. Meyers, 2005 BCCA 91.

In making an award for future
care costs the court must take into account both what is medically required and
what expenses the plaintiff will likely incur. Items and services that the
plaintiff is unlikely to use in the future cannot be justified as reasonably
necessary aspects of the cost of future care: Izony v. Weidlich, 2006
BCSC 1315 1315.

(See also, Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9).

[317]    Recommendations made by a medical doctor or made by
various other health care professionals are relevant in determining whether an
item or service is medically justified: Gregory at para. 38.

[77]        
Ms. Westfield seeks an amount between $2,500 and $5,000 under this head
of damages.  The basis for this aspect of the claim was the plaintiff’s
evidence she intends to undergo the surgery on her shoulder if she is a
suitable candidate.  Dr. Moola has advised that, in the event this occurs,
the plaintiff will be required to be in a sling as well as participate in a
rehabilitation program.

[78]        
The plaintiff also seeks an award for the cost of the medication, mainly
the Aleve and the Voltaren, which she will incur to manage her pain.

[79]        
In light of my conclusion that the plaintiff has not established it is
likely she will undergo an operation, it follows, based on the principles I
have just referred to that the claim under this head of damages must be
dismissed with the exception of a modest amount for Aleve and Voltaren which I
assess at $250.

IX       CONCLUSIONS

[80]        
The plaintiff is awarded the following:

[81]        
Subject to any factors which may pertain to the issue of costs and which
either party has leave to bring to my attention, the plaintiff is awarded her
costs of the action in accordance with Rule 15-1.

“Abrioux
J.”