IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130312

Docket: M104090

Registry: Vancouver

Between:

Marika
White

Pl
aintiff

And

Henry
Gehricke and Danielle Vandervoort

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

Introduction

[1]            
The plaintiff Marika White claims damages for injuries arising from two
motor vehicle accidents (the “MVAs”). She seeks compensation for her personal
injuries, loss of past income, loss of future earning capacity, housekeeping,
cost of future care, special damages as well as costs.

[2]            
The first MVA occurred on April 19, 2009. The defendant Henry Gehricke
rear-ended Ms. White’s vehicle. Liability is admitted.

[3]            
Within the following month, the plaintiff was involved in a second MVA,
which occurred on May 9, 2009. Ms. White’s vehicle collided with a vehicle
operated by Danielle Vandervoort. Ms. Vandervoort denies responsibility for
this collision.

[4]            
The difficult process of determining the nature and extent of Ms.
White’s injuries and the defendant responsible for those injuries has been
further complicated by another accident that predates the MVAs. On February 26,
2009, the plaintiff slipped and fell down the outdoor stairs that led to her
apartment (“slip and fall”). She sustained traumatic injuries from this
accident. Ms. White commenced legal proceedings in regard to that slip and
fall, seeking damages. The matter was ultimately settled in March 2012.

[5]            
In this matter, Ms. White amended her notice of civil claim to
specifically waive any right to recover any portion of her loss found to be attributable
to the slip and fall accident.

[6]            
The defendants argue the injuries that the plaintiff sustained in the
slip and fall are divisible from those sustained in the two subsequent MVAs.
The plaintiff similarly maintains her injuries resulting from the MVAs are
distinct and divisible.

[7]            
However, the defendants argue the slip and fall is the cause of her ongoing
complaints in these proceedings, that the effect of the MVAs upon her health
was “minimal and transitory”. They further maintain Ms. White has fully
recovered from the injuries that are attributable to the MVAs. Apart from the
assessment of damages for what the defendants say is a slight aggravation of
her slip and fall injuries, the defendants argue they do not owe compensation
to the plaintiff.

[8]            
Accordingly, I must determine whether Ms. Vandervoort is liable for the
second MVA, whether and to what extent the defendants are responsible for Ms.
White’s injuries and the quantum of damages to which she is entitled.

Background

The Plaintiff before the Three Accidents

[9]            
At the date of trial, Ms. White was 33 years of age. Upon graduation
from high school in 2001, Ms. White attended Kwantlen College where she
obtained a Travel and Tourism certificate in 2003. She then attended BCIT,
taking courses in marketing management, public relations and graphic design.

[10]        
She began working in the travel business with Transat but she left that
employer in 2008 and accepted a position with Thomas Cook Canada as an Inside
Sales Coordinator. In 2008, she also took on a position with NewAd Media Inc.
(“NewAd”), working evenings and weekends. This work involved setting up and
attending display booths in public locations to sell whatever product NewAd had
contracted to promote. NewAd’s customers were varied and included cellular
phone manufacturers, breweries and the Vancouver Canucks.

[11]        
Ms. White was a healthy and active young woman. She walked to and from
work each day, which took about one hour each way. She enjoyed many outdoor
activities, such as snowboarding, hiking, rollerblading, horseback riding,
running and walking. She also travelled and backpacked in South America and
other areas of the world.

[12]        
The evidence establishes that Ms. White was an upbeat woman. Her
positive attitude toward life was supported by the testimony of Monica Subrt,
Jamie Makurta and Matthew Morin. Each witness had a lengthy friendship with Ms.
White and all noted a marked change in her emotional character and lifestyle
after her accidents.

The Slip and Fall ─ February 26, 2009

[13]        
As the plaintiff was leaving her apartment in the Kitsilano neighbourhood
of Vancouver on February 26, 2009, she slipped on ice on the top step of an
exterior concrete walkway to her apartment. She fell, hitting her tailbone on
the concrete and then sliding down the stairs on her buttocks. She stood up but
then passed out, falling face first onto the walkway.

[14]        
Ms. White was taken by ambulance to the Vancouver General Hospital (“VGH”)
where she remained overnight. She had several fractured teeth, a bruised nose
and a cut on her chin and lip, which required stitches. She also likely
sustained a concussion. Ms. White attended her family physician Dr. Zahir Vellani
for ongoing treatment and various specialists to deal with her dental injuries.

The First MVA ─ April 19, 2009

[15]        
On April 19, 2009, Ms. White was stopped at a red light at the
intersection of Granville Street and Broadway while driving westbound on
Broadway in Vancouver. Her vehicle was rear-ended by a vehicle driven by the
defendant Mr. Gehricke.

[16]        
Mr. Gehricke testified the impact occurred when he took his foot off the
brake and his vehicle rolled into the plaintiff’s vehicle. He said the impact
was minor. He admitted responsibility for the accident.

[17]        
The estimated cost to repair the defendant’s vehicle was $765.00. The
plaintiff’s vehicle cost under $500.00 to repair.

[18]        
Ms. White testified that upon impact she became upset. She recalled shaking
and crying. She said she was thrown forward by the impact and she believed she
hit her head on the steering wheel. Initially she thought the moisture from her
tears was blood. She had flashbacks to the slip and fall. She called a friend
to take her home. Later, she felt pain in her left upper back, neck and her
left shoulder. Ms. White thought it was possible the injury to her tailbone
sustained in her slip and fall was also somewhat aggravated.

[19]        
At the time of the first MVA, Ms. White was still experiencing ongoing
dental issues, tailbone pain, headaches and emotional distress as a result of
the slip and fall.

The Second MVA ─ May 9, 2009

[20]        
The second MVA occurred at the intersection of 121st Street and 72nd
Avenue, Surrey, British Columbia on May 9, 2009.

[21]        
Ms. White testified that she was driving west on 72nd Avenue in the
left-hand lane. She said she suddenly saw lights approaching her from the left
and that she tried to swerve but that she was struck by the defendant’s
vehicle, which was turning left at the intersection. Ms. White testified she
had no warning of the approach and that she was unable to avoid the accident.

[22]        
Ms. White testified that after the collision, the defendant Ms.
Vandervoort got out of her vehicle. She was barefoot and screaming obscenities
at Ms. White, who remained in her vehicle with her doors locked out of fear.
Ms. White was of the view the defendant had been drinking. At the scene of the
collision, she requested the attending RCMP officer to conduct a breathalyser test
on the defendant.

[23]        
Ms. Vandervoort testified that she approached the intersection of 72nd
Avenue from 121st Street. She waited at the intersection for traffic to clear
and then proceeded across the eastbound lanes of traffic when it was safe to do
so. She then commenced her left hand turn. While turning into the left hand
lane, she was struck by Ms. White’s vehicle. She claimed she did not see Ms.
White’s vehicle prior to the collision. Ms. Vandervoort admitted she was
barefoot and that she consumed one drink that evening.

[24]        
Ms. Holowinko was an independent witness to the collision. She testified
she was proceeding eastbound on 72nd Avenue when Ms. Vandervoort’s vehicle “darted”
in front of her vehicle, emerging from 121st Street. Ms. Holowinko said she had
to apply her brakes to slow down as a result of Ms. Vandervoort’s actions. She then
observed the defendant’s vehicle proceed straight across the eastbound lanes
and collide with Ms. White’s vehicle. She testified Ms. Vandervoort did not
stop at the intersection. Rather, she proceeded directly through it.

[25]        
Ms. Holowinko testified that after the collision, Ms. Vandervoort had acted
erratically. She witnessed her swearing and shouting at Ms. White.

[26]        
RCMP Constable Harvey testified she attended the accident scene and
spoke to both drivers. She administered a breathalyser test on the defendant,
which gave a low blood alcohol reading. She concluded the reading did not warrant
further action. Constable Harvey recorded the plaintiff’s complaint that the
defendant driver had yelled at her.

[27]        
Not surprisingly, Constable Harvey did not have an independent
recollection of the incident. She relied on her rather limited notes she had
taken at the scene to refresh her recollection as to what had occurred. I did
not find Constable Harvey’s evidence to be of assistance in determining the
question of liability other than to corroborate the evidence of Ms. White and
Ms. Holowinko as to the conduct of the defendant following the accident. That
conduct establishes nothing other than Ms. Vandervoort being upset after the
collision. I will return to an assessment of liability for this accident later
in my reasons.

Ms. White’s Health Post-Accidents

[28]        
As a result of the slip and fall, Ms. White sustained a bruised
tailbone, three fractured teeth and a bruised nose. Cuts on her lips and chin
had required stitching and she was left with some scarring in that area. She
also likely suffered a concussion when she fell. She testified that following
the slip and fall, her tailbone in her buttock area was quite sore and she
maintained this pain was “very specific” to that area of her body. Ms. White was
adamant that she did not suffer from any pain in her lower left back or hip
area following the slip and fall accident.

[29]        
Ms. White testified her tailbone was still causing her pain at the time
of the first MVA. She testified in cross-examination that her tailbone was sore
and that it felt stiff. She also testified that she continued to suffer from
headaches at the time of the first MVA.

[30]        
The first MVA caused Ms. White to suffer pain in her neck, shoulder and
upper back. She missed about two days of work as a result. The plaintiff
testified she was also very upset as a result of the first MVA as her “physical
appearance mattered” and she “could not believe this had happened. I felt very
helpless”. The accident had a significant impact on her mood.

[31]        
In Ms. White’s examination in chief, she was referred to Dr. Vellani’s
notation made in his clinical records on April 21, 2009, in relation to the
first MVA. She was asked about Dr. Vellani’s reference to “lower back pain”.
She testified that she believed this was in reference to her tailbone, which
she had complained about. The plaintiff said she did not complain to Dr.
Vellani about lower back pain when she saw him after the first MVA.

[32]        
As stated, Ms. White has been adamant that while the first MVA may have
aggravated her tailbone, it did not cause injury to her lower back. The
injuries she had sustained were to her neck and shoulder area.

[33]        
The plaintiff described her injuries from the second MVA as being in her
arm, shoulder, neck, upper back, the left side of her lower back and the left
groin area in the front of her hip. She testified that she had no prior
symptoms in these areas of her body. Ms. White maintained that her tail bone
injury had virtually cleared up by the time of the second MVA. However, she did
suffer from an increasing number of headaches.

[34]        
The plaintiff testified that her mood significantly changed following
the second accident. She also slept poorly. She experienced nightmares and she
would often break into tears. As a result, Dr. Vellani referred her to Dr.
Elsie De Vita in November 2009.

[35]        
At trial, Ms. White described ongoing pain in her left hip and left lower
back area. She still suffered from headaches and a tight feeling in her neck
that bothered her “on and off”.

[36]        
She testified the accidents have impacted her recreational and social
life. Her medical advisors have advised her she should no longer snowboard,
horseback ride or jog. She still has difficulty walking for longer than half an
hour, which will cause her pain in her left hip and left lower back area.

[37]        
She is unable to do heavy housework and she has to split household
chores with her boyfriend to accommodate her condition.

[38]        
Ms. White testified intimate relations with her boyfriend have been reduced
as a result of her painful hip and lower back.

[39]        
The plaintiff testified to one further accident. On May 29, 2009, on a
trip to visit a friend in Calgary, her hip gave way and she fell to the ground.
When she returned home, she had difficulty climbing the stairs to her
apartment.

[40]        
There is little doubt that Ms. White has worked hard to try to
rehabilitate herself. She has followed the advice of her physician and has
regularly attended physiotherapy treatments. In striving to return to her
pre-accident physical condition, she attended a personal trainer for a number
of sessions in 2010 but had to discontinue training sessions due to aggravation
of her symptoms, upon recommendation of her physical therapist.

[41]        
The limitations to which Ms. White testified, her depressed mood, her
decreased social life and participation in the activities she formerly enjoyed,
were all testified to by Ms. Subrt, Mr. Morin and Mr. Mokurta.

The Impact of Ms. White’s Injuries on her Work

[42]        
As previously stated, Ms. White was employed with Thomas Cook Canada at
the time of her accidents. She resigned her position in August 2009 to take a
position as a marketing manager for the head office of Uniglobe Travel
International (“Uniglobe”).

[43]        
Ms. White testified her work causes her pain whenever she sits for a
lengthy period of time. One of her main responsibilities with Uniglobe is to
arrange conferences and undertake initiatives involving Uniglobe’s franchisees.
This involves occasional overseas travel. On one occasion in 2011, she missed a
conference because she felt she could not tolerate the lengthy flight. She also
finds it difficult to sit in meetings with staff for any length of time. She sometimes
has to cut meetings short or reschedule them.

[44]        
She testified Uniglobe’s management has been very tolerant and
understanding toward her disability. She nevertheless feels that she could have
advanced further in the company but for the injuries to her hip and lower back.

[45]        
Ms. White testified that she decreased her workload for NewAd in 2009
and that she stopped taking on assignments altogether in 2010 because her back
and hip pain prevented her from setting up and taking down booths.

[46]        
The plaintiff earned between $500.00 and $1,000.00 a month in her
employment with NewAd and she said she had enjoyed the work. It had provided
her with extra income and she testified she would have continued taking on
projects for NewAd had it not been for the accidents.

[47]        
Ms. White earned $2,327.00, $2,186.00 and $1,068.00 in 2008, 2009 and
2010 respectively from NewAd.

[48]        
Ms. White’s income from her employment, excluding that from NewAd, for
2009, 2010 and 2011 was $38,096.00, $42,106.00 and $44,000.00 respectively.

The Medical Evidence

[49]        
In some regards, the medical expert evidence presented in this matter
was difficult and contradictory on the issue of causation. To add further
complexity, the trial shed light on some inconsistencies in the recorded
observations of the medical experts that gave rise to their opinions on
causation.

[50]        
All the same, precision is not the standard of proof. A conflict in the
evidence often arises in a complex fact pattern involving a series of accidents
in close sequence. My task is to unravel this evidence to determine whether Ms.
White has established causation on a balance of probabilities. I set out this
evidence as I recall it and I highlight the incongruities in this evidence to
aid in my analysis.

Dr. Vellani

[51]        
Dr. Vellani is Ms. White’s family physician. Ms. White has been his
patient since 2001. Dr. Vellani treated her for the injuries she sustained in
the slip and fall and both MVAs. He prepared two medical reports, which were
filed as exhibits, and he gave evidence by video deposition on May 17, 2012.
Dr. Vellani’s clinical records were also before the Court.

[52]        
Dr. Vellani described Ms. White’s injuries from the slip and fall as
being complaints of headache and pain in her tailbone, a cracked left upper
incisor tooth, an injury to her nose and a laceration to her chin and lip,
which required sutures. Upon review of Ms. White’s x-rays taken at the VGH, Dr.
Vellani noted there was an indication that she may have spondylosis at the L-5
area of her spine.

[53]        
Dr. Vellani saw Ms. White after the first MVA on April 21, 2009. At that
time she had complained of neck, shoulder and back pain, which had come on two
hours after the accident. She had also advised him that she had ongoing
tailbone pain from her slip and fall injury. Significantly, Dr. Vellani made a
notation that Ms. White had a “tender lower back”, which she had told him was
from a “previous injury”, which he took to mean the slip and fall. He also
noted she had “good range of motion” in her lower back.

[54]        
When Dr. Vellani saw Ms. White again on May 7, 2009, Ms. White had complained
of a sore left neck and left hip. He conducted an examination of her hip and
noted she had full range of motion without pain. She had also complained of a
sore back.

[55]        
Dr. Vellani saw Ms. White on May 13, 2009 after the second MVA. He
diagnosed her with soft tissue injury. At that time, she was complaining of a
sore left arm as well as neck and back pain that had come on as a result of the
accident. She also reported her tailbone was still bothering her.

[56]        
Dr. Vellani continued to follow Ms. White’s progress through to the date
of trial. While she progressed in her recovery somewhat, he noted she continued
to complain of ongoing headaches as well as pain in her neck, back and left hip.

[57]        
Dr. Vellani next saw Ms. White on September 29, 2009. At that time, she complained
of lower back pain. She was also suffering from tenderness in her left upper
lumbar area. Dr. Vellani commented: “it is possible that the coccyx pain was
aggravated by one or both of the MVA’s, but I would judge the MVA’s to be minor
factors.”

[58]        
It was Dr. Vellani’s opinion that the pain over the tailbone was, in the
main, caused by the slip and fall accident.

[59]         
In his medical legal report of June 8, 2010, Dr. Vellani wrote:

The symptoms and signs from this
accident were consistent with soft tissue injuries, namely a myofascial strain
of the neck. … She complained of ongoing pain in the tailbone and nose from the
February 26^th fall. The nose was still tender. She had tenderness of
the lower back which was attributed to the slip and fall of February 26, 2009.
… She was seen on May 7, 2009, to follow up on her MVA, with her symptoms
related mostly to her neck and upper back.

[60]        
As for the second MVA, Dr. Vellani noted that when he saw her on May 13,

She was unable to separate her
symptoms from those arising from this accident and those aggravated from the
previous accident. She complained of soreness all over but did notice increased
pain in her tailbone, neck and back. The symptoms and signs on that day related
mostly to soft tissue injuries affecting the upper back and lower back and left
elbow.

[61]        
Dr. Vellani also recorded the plaintiff’s complaint about pain in her left
lateral hip after she fell when her hip gave away on her trip to Calgary in May
2009.

[62]        
On July 20, 2010, Dr. Vellani wrote “an addendum” to his original
report. He did so after Ms. White provided him with “some more information and
clarification” following his first report. Of particular significance to the
matters at issue in this case are the comments of Dr. Vellani at paras. 7, 8
and 9 of this letter. Dr. Vellani wrote:

7.    
…She continued to work at her regular desk job, but found she had to
get up and move around often. When she sat back, she found she had pain in the
area of her tailbone. … She was also unable to walk to and back from work. She
noticed that she was slowly starting to be able to lift some weights. She
complained of hip pain … .

8.    
In my opinion, her symptoms related to her tailbone, nose, and dental
injuries were related to the fall of February 26, 2009. Her other ongoing
symptoms appear to be more related her motor vehicle accidents. It is not
possible for me to distinguish between those caused by the first accident as
compared to those caused by the second accident.

9.    
… She is having ongoing treatment for her back, left hip, and these
injuries appear to be related to the motor vehicle accidents. She is also
having ongoing psychological issues for which she is attending a psychologist
and these will continue. An active exercise program would give her the best
chance of recovering from her motor vehicle accident injuries, and a personal
trainer certainly is of help in this regard.

[Emphasis added.]

[63]        
In his deposition, Dr. Vellani confirmed his opinion that the back and
left hip injuries were related to the MVAs.

[64]        
However, he also testified in his examination in chief in relation to
the notes he took in his meeting with Ms. White on April 21, 2009 as follows:

31.   Q         Do you
recall if you asked her specifically if she

32.   had
problems from the previous slip and fall or do

33.   you know
how that came about?

34.   A          When I was
examining her, there was some tenderness

35.   in the
lower back. And she — the way I written

36.   here,
she’d have mentioned to me that, you know, I’m

37.   hurting in
there from since the fall before, from

38.   February,
that’s still hurting, that’s why I put the

39.   notes, in
brackets, previous injury.

40.   Q         You’re
talking about tailbone now?

41. 
 A          I’m talking about a lower back injury right now.

[65]        
In cross-examination, the lower back pain notation was raised again:

27.   A          Okay. And a
few lines below that, it says tender

28.   lower
back?

29.   A          Right.

30.   Q         This was you
palpating her lower back?

31.   A          Yeah,
that’s right.

32.   Q         And you made
a note to reflect your own opinion that

33.   this
related back to the slip and fall accident?

34.   A          No, I , I
won’t do that, like, at all usually. So my

35.   reading of
that would have been that when I was

36.   doing that
it was sore, to say this is ongoing from

37.   my
previous injury, she’d be telling me that.

38.   Because I,
I made a — there’s no way I can, on

39.   examination,
say this a previous injury or

40.   something
new. This would be something her

41.   verbalizing
to me.

8.      Q         You
summarized what she communicated to you —

9.      A          What
she felt was going on, right.

10.   Q         — which was
lower back pain was relating back to

11.   the slip
and fall?

12.   A          Slip and
fall.

13.   Q         Thank you.
And that was clearly something distinct

14.   from the
ongoing tailbone pain which is addressed

15.   elsewhere
in these notes?

16.   A          So the —
on the same, on the same day? On the same

17.   day, she
tells me she’s got ongoing tailbone pain,

18.   yes.

19.   Q         Yes.
Distinct from the lower back?

20. 
 A          Distinct from the, distinct from the lower back.

[66]        
Dr. Vellani was also unable to provide a firm opinion on whether Ms.
White’s hip injury was attributable to the slip and fall or the second MVA.

[67]        
In cross-examination, Dr. Vellani was pressed on the issue of the cause
of Ms. White’s complaints of pain in her left hip area. Defence counsel sought
to draw a causal connection between the hip injury and that sustained to her
coccyx as a result of the slip and fall accident. Dr. Vellani agreed it was
possible the hip complaint related to the injury Ms. White sustained to her
tailbone in the slip and fall accident, but he disagreed with counsel that the
causal relationship was “probable”.

[68]        
In re-examination, Dr. Vellani was asked: “[a]re you able to say that
this complaint [left hip sore as recorded in his clinical notes of May 7, 2009]
is more likely related to the slip and fall or more likely related to the first
car accident”, he answered: “[n]o, I can’t.”

Dr. Rhonda Shuckett

[69]        
Dr. Shuckett, a specialist in internal medicine and rheumatology, saw
Ms. White at the request of her counsel for an independent medical examination
and opinion in August 2010 and again for a follow-up examination on December
22, 2011.

[70]        
Dr. Shuckett wrote four medical legal reports dated respectively August
30, 2010, May 9, 2011, January 24, 2012 and June 5, 2012, each of which was
filed as an exhibit at trial. Dr. Shuckett was cross-examined on the contents
of those reports.

August 30, 2010 report

[71]        
 In this report, Dr. Shuckett described the injuries sustained by the
plaintiff in the three accidents.

[72]        
In describing the injuries sustained in the slip and fall accident she
wrote:

She had low back pain, buttock
pain and a bruised tailbone. It still hurts if she sits upright, or sits
for too long.

[Emphasis added.]

[73]        
I note the plaintiff disputes the inference arising from this comment
that she told Dr. Shuckett she had low back pain arising from the slip and
fall. Not surprisingly, the defendant relies heavily on this comment to support
the argument the plaintiff’s injuries are divisible and mainly attributable to
the slip and fall.

[74]        
Dr. Shuckett noted that Ms. White’s tailbone was “still hurting her” at
the time of the first MVA.

[75]        
Dr. Shuckett observed that Ms. White’s “back and hip were hurting her
right away” after the second MVA. When she examined her, Ms. White was tender
over the paraspinal muscles on the left side of the lumbar spine, the left
sacroiliac region and the left hip.

[76]        
Dr. Shuckett made the following diagnoses: (i) facial injuries from the
slip and fall; (ii) pain syndrome of the neck and shoulder girdle region from
the MVAs; (iii) musculoligamentous injury causing mechanical low back pain in the
lumbar spine resulting from the MVAs; and (iv) a left hip area injury related
to a labral tear, although she does not specify the cause.

[77]        
In the section of her report dealing with causality, Dr. Shuckett opined:

All the above diagnoses are
caused by the injuries she sustained. The cause of diagnosis number one is the
slip and fall as is the supposed fracture of her tailbone. The issue of
possible concussion ties in with the slip and fall. The cause of other
diagnoses in (sic) mainly related to the MVAs. This sequence of three injuries
occurred in close succession to one another. There are also emotional and
psychosocial sequelae from the series of injuries and she has good insight into
these issues. I am not qualified to diagnose an anxiety disorder or post traumatic
stress disorder. She had some initial headaches after the slip and fall.

[Emphasis added.]

May 9, 2011 report

[78]        
Dr. Shuckett prepared this report to comment on the results of an MRI of
Ms. White’s lumbar spine and left hip. The MRI showed Ms. White had sustained a
labral tear in her left hip. Dr. Shuckett wrote:

Indeed, this patient sustained a
labral tear of her left hip. I believe that this was chiefly precipitated by
the subject MVA. However, she does have what is called FAI or femoro-acetabular
impingement, which is a congenital developmental variation in the relationship
between the acetabulum and the femoral head of the hip.

This type of architecture can
predispose to a greater risk of labral in the event of an incident such as a
trauma. Thus, I believe that she had some predisposing morphology to her hip,
but then it took the MVA the (sic) lead to the acetabular labral tear of the
hip.

…

The labral tear can somewhat
increase the risk of osteoarthritis of the hip, as can her underlying
architecture of the hip of femoral acetabular impingement.

January 24, 2012 report

[79]        
This report was written as a follow-up to a further assessment of Ms. White
on December 22, 2011. Dr. Shuckett found that Ms. White’s symptoms and her
complaints of hip and lower back pain had not changed since her previous
assessment.

[80]        
Dr. Shuckett’s report again became a focus of the defendants at the trial
as it contained several potentially conflicting statements.

[81]        
Under the section entitled “Impression”, Dr. Shuckett noted:

She does have a labral tear and I
do strongly believe that the labral tear was sustained with the slip and fall.

At this point in time, it is
approaching three years since the subject slip and fall and she remains
symptomatic.

…

Her low back and buttock area
were symptomatic after the slip and fall. She depicts that her L hip area was
more of a problem after an MVA on May 9, 2009. I do believe that the May 9,
2009 MVA may potentially have contributed to or fully caused the acetabular
labral tear. Whether or not is (sic) was perhaps initiated with her slip and
fall and then exacerbated with the May 2009 MVA is also possible. MVAs, of
their own accord, can lead to acetabular labral tears. Thus, it is challenging
for me to discriminate exactly what role in the labral tears is conferred by
her slip and fall versus the May 9, 2009 MVA.

Her pain was mainly in the
low back and buttock area after the slip and fall and I gather that it became
more of an issue in the hip area in the groin area after the May 9, 2009 MVA.
In retrospect, it is often hard to piece together the relative role of
different injuries with a presentation.

[Emphasis added.]

June 3, 2012 report

[82]        
Dr. Shuckett wrote this report to correct the comment contained in her
January 26, 2012 report where she stated that she “strongly believed” the
labral tear was sustained in the slip and fall. In correction of that statement,
she declared:

This was a typo and should
read that I do believe that the labral tear was NOT sustained with the slip and
fall. I favour that the labral tear was probably caused by the MVAs and
specifically most likely the 2^nd subject MVA. That is when she
started to develop hip pain for the first time. This opinion that the 2^nd
MVA likely caused the labral tear is reflected in my initial MLR to you.
Although in my Jan 2012 report I do say it can be hard to stratify the relative
role of each injury and that the slip and fall may have contributed to the
labral tear, I do continue to favor that the 2^nd subject MVA was
probably the main catalyst to the hip injury.

[Emphasis added.]

[83]        
In cross-examination, Dr. Shuckett agreed that when Ms. White had
recounted the slip and fall to her, Ms. White had said she experienced “low
back pain”. When it was suggested to Dr. Shuckett that lower back pain was different
from tailbone pain, she explained that lower back pain could be pain anywhere
between the tailbone and lower back area. She identified the plaintiff’s lower back
pain as being located in the lumbar spine above the sacroiliac joint. She
believed most of the plaintiff’s pain was coming from the junction of the
sacrum and L-5.

[84]        
Dr. Shuckett agreed in cross-examination that she could not rule out
with certainty the slip and fall as the cause of Ms. White’s hip injury.

[85]        
Dr. Shuckett also agreed in cross-examination that if the note in Dr.
Vellani’s May 7, 2009 clinical records “[left] hip sore” related to anterior
lateral hip pain, it would be significant in determining whether the hip had
sustained trauma prior to the second MVA. In essence, Dr. Shuckett said that if
the pain was from the groin area of the hip, this would support pre-MVA hip
pain. She also agreed the plaintiff’s current hip pain “could” have come from
sources other than the labral tear.

[86]        
In re-examination, Dr. Shuckett confirmed her opinion the labral tear
was caused by the second MVA, as it was after that accident the plaintiff had
first complained of groin pain.

Dr. Michael Gilbart

[87]        
Dr. Gilbart is an orthopedic surgeon whose practice is mainly dedicated
to disorders of the shoulder, knee, hip and elbow.

[88]        
Dr. Gilbart saw the plaintiff at the request of her counsel. He took her
medical history from her and he conducted a physical examination on May 26,
2011. He later prepared a medical legal report, dated November 16, 2011. His
testimony was given by video deposition on May 17, 2012.

[89]        
At the time Ms. White saw Dr. Gilbart, Ms. White’s major complaints were
those of pain in the left side of her lower back and in the anterior aspect of
her left hip and groin.

[90]        
Dr. Gilbart drew the following conclusions on causation with respect to Ms.
Whites injuries:

Injuries in the February 26, 2009 Slip and Fall Accident:

Ms White had pain in her
tailbone region following the initial slip and fall accident, as well as facial
injuries. This pain in the tailbone region completely resolved. Her
facial injuries healed. …

Injuries in April 19, 2009 MVA:

Ms White had pain and stiffness in her neck, upper
back and between her shoulder blades following the first motor vehicle
accident. This was paraspinal muscular pain. Although her symptoms in that
these regions improved, Ms White still has occasional mild stiffness and pain
in her neck and her upper back.

Injuries in May 9, 2009 MVA:

Ms White experienced neck pain,
upper back pain, left-sided low back pain and left hip and groin pain. The
upper back pain was a musculoligamentous thoracic strain and was an aggravation
of the pain that she had experienced during the April 19, 2009 motor vehicle
accident. The neck pain was musculoligamentous cervical strain and was new
pain. The left-sided low back pain and left hip pain was caused by a soft
tissue injury to this region and was new.

[Italicized emphasis added.]

[91]        
Dr. Gilbart concluded Ms. White’s injury to her lower back and left hip
resulted from the May 9, 2009 MVA. It was his opinion that she sustained a
separation in the anterosuperior labrum with mild impingement.

[92]        
He opined that Ms. White could continue to perform her professional
responsibilities but that she might have to decrease some of her work and recreational
activities to accommodate her ongoing lower back and left hip pain.

[93]        
Dr. Gilbart also found that given the length of time that had passed
since the second MVA, it was “unlikely” Ms. White would notice any significant
further functional improvement. He nevertheless recommended that she continue her
home exercise and core strengthening programs.

[94]        
In cross-examination, counsel for the defendants referred Dr. Gilbart to
the clinical records of both Dr. Shuckett and Dr. Vellani, who both made
reference to lower back pain in regard to the slip and fall accident.

[95]        
Dr. Gilbart agreed that he was unaware of her complaints of lower back
pain arising from the first MVA. He had relied on the history he took from Ms.
White and the physical examination he conducted upon her in forming his
opinion.

[96]        
Dr. Gilbart agreed that if Ms. White told Drs. Vellani and Shuckett that
she had experienced lower back pain after the first MVA, it was a matter that he
should have factored into his assessment of Ms. White. He also testified that
it was difficult for him to determine what area of Ms. White’s body Dr. Vellani
was referring to when he mentioned “tender low back” in his clinical records
taken on April 21, 2009.

[97]        
Dr. Gilbart also agreed with the suggestion from defence counsel that it
was possible a person could injure their lower back if they fell directly on
their tailbone. Dr. Gilbart was referred to Ms. White’s hospital records relating
to the slip and fall. In these records, Ms. White is noted to have complained
of pain in her left buttock. Dr. Gilbart responded to counsel for the defence by
stating “[w]ell, I would characterize that as buttock pain which is different
than low back pain.”  When pressed by defence counsel as to whether this may
have been connected to her lower back pain as referenced in Dr. Vellani’s notes
dated April 21, 2009, Dr. Gilbart responded:

31.   A.         Well,
again, other than the notation of low back

32.   tenderness,
I haven’t seen any notation of low back

33.   pain after
that slip and fall accident. Coccyx

34.   pain, yes;
buttock pain, yes. But to my

35.   interpretation
when I take a history of somebody for

36.   coccyx
pain, hip pain, buttock pain and low back

37.   pain,
those are different pains so it’s difficult

38. 
 for me to connect those. …

[98]        
Dr. Gilbart also agreed in cross-examination it was possible that a
pre-existing condition, namely the injured coccyx from the slip and fall, could
be aggravated by the MVAs and that it was possible but “much less likely” the
plaintiff’s complaint of pain in her left hip arose from an injury to her low
back.

[99]        
He further agreed the hip injury sustained by Ms. White resulted from an
anterior labral tear in the front of the hip, not the back of the hip. He
confirmed that he was not convinced the anterior labral tear was the cause of
all of the symptoms in her left hip. He also agreed it was “possible” the
labral tear was present before any of the three incidents.  As to Ms. White’s
anterior groin pain, he testified, “[i]t’s probable, in my opinion, given the
history that she provides and the physical exam findings and the symptoms after
the May 9th accident that the May 9th accident caused (sic) is the significant
event that caused her to have this anterior groin pain” (see deposition of Dr.
Gilbart at p. 17, lines 38 to 43).

Dr. De Vita

[100]     Dr. De Vita
is a registered psychologist. She began treating Ms. White on November 9, 2009.
She met with Ms. White on a weekly basis from November 2009 to June 2010. She
met with her biweekly from July 2010 to April 2011. After that time, she met
with Ms. White monthly until August 2011, after which time the treatments
tapered off. She last saw Ms. White in February 2012. Dr. De Vita prepared an
expert report, dated August 23, 2011.

[101]     At the
time of trial, Dr. De Vita testified she did not believe Ms. White would
require further sessions unless she felt they were necessary. The last time Dr.
De Vita had seen Ms. White, she had “seemed more grounded and was managing the
stressors that were going along with what was happening in her life.”

[102]     Dr. De Vita
treated Ms. White for psychological issues arising from several concerns
impacting her mental health. When she commenced her treatment, Ms. White spoke
of feeling self-conscious about the injuries to her face. She found it
difficult to make eye contact with others. She was having flashbacks about the
injury to her face and she was anxious about being involved in another accident.
As time progressed, she found it increasingly frustrating, given her high functioning
level and her active lifestyle prior to the accidents, to adjust to her
subsequent limited capacities and her ongoing pain. In addition, she was
concerned that the number of medical appointments she was required to attend
would negatively impact new employment opportunities. As related by Dr. De Vita,
Ms. White felt “fearful and agitated”. Ms. White would frequently become
tearful during treatment sessions.

[103]     In cross-examination
Dr. De Vita agreed that some of Ms. White’s anxiety arose from her outstanding
litigation. She was anxious to get her legal case over with so that she could
get on with her life.

Ms. Marjorie Belot

[104]     Ms. Belot,
a registered physical therapist, prepared an expert report, dated April 1, 2011.

[105]     Counsel
for the defendants objected to plaintiff’s counsel leading evidence from Ms.
Belot about matters subsequent to her April 1, 2011 report as that evidence was
not set out in the report. I reserved my decision on this matter at the time but
have concluded that any evidence given by Ms. Belot relating to matters
subsequent to April 1, 2011 is not admissible. The defendants had no knowledge
of this evidence and were unprepared as a result.

[106]     Pursuant
to R. 11-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009, unless
the court otherwise orders, opinion evidence of an expert must not be tendered
at trial unless that evidence is included in a report of that expert that has
been prepared and served in accordance with R. 11-6(5). The purpose of this
rule is to provide the opposing party with notice and an opportunity to respond.
In this case, while Ms. Belot’s report was properly served, her evidence
post-report was not. As a result, defence had no opportunity to prepare for a
response in respect of those findings.

[107]     Exclusion
of Ms. Belot’s evidence post-dating her report is accordingly justified in
these circumstances. That evidence had minimal probative value and, accordingly,
its prejudicial effect for late disclosure to the defence greatly outweighs its
probative value.

[108]     Ms. Belot
first saw Ms. White on June 2, 2009. Ms. White had said, as recorded by Ms.
Belot, that she was experiencing “deep left shoulder, forearm, left hip and
anterior thigh pain as well as headaches, posterior cervical, lower thoracic,
lumbar and lumbopelvic pain.” Ms. White had also complained of experiencing “deep,
jabbing pain in her left hip” after walking more than several blocks.

[109]     Ms. Belot reported
that Ms. White attended physiotherapy sessions on a regular basis up until December
14, 2009 to address persistent lower back pain, thoracolumbar junction pain and
stiffness. She returned for physiotherapy treatment in February 2010 for right
hip pain, lower back pain, mid thoracic pain and left hip soreness. She
continued to attend regularly until January 2011. During this period of time,
Ms. White was also working with a personal trainer. The personal training
sessions were discontinued in July 2010 on the advice of Ms. Belot as the
training was thought to be too rigorous, resulting in the aggravation of the
plaintiff’s symptoms. At that time, Ms. White had continuing complaints of lower
back pain.

[110]     Ms. Belot
testified in cross-examination that she was able to relieve the plaintiff’s
left hip symptoms by treating her lower back at the L5 level. The defendants
say this evidence is significant as the L5 is the last vertebrae before the
sacrum.

Dr. Richard Kendall

[111]     The
defendants referred Ms. White to Dr. Kendall, an orthopedic surgeon, for an
independent medical examination. Dr. Kendall prepared a medical legal report
dated March 16, 2012 (although it is relevant to note there are several drafts
for this final report). Dr. Kendall gave evidence at trial.

[112]     In the
“Opinion” portion of his report, Dr. Kendall gave his view on the cause of Ms.
White’s injuries. He drew the following conclusions with respect to the
injuries sustained in the slip and fall:

She had a multitude of injuries
and her musculoskeletal symptoms following this included neck pain, pain in her
coccyx (tailbone) and that low back/buttock pain. These symptoms (Coccyx, neck
and low back) appear to be present and ongoing at the time of the first motor
vehicle accident. The coccyx pain was worsened by the first motor vehicle accident.

The coccygeal pain has gone on
to resolution. I do not anticipate any chronic disability or other abnormality
or painful entity to arise out of this problem.

[113]     Under the
section of his report dealing with “neck pain”, Dr. Kendall concluded that Ms.
White’s neck pain was “directly attributable” to the first MVA.

[114]     Dr.
Kendall interpreted Dr. Vellani’s clinical notation of “low back pain” made
after the first MVA to mean the lower back pain was attributable to the slip
and fall. Dr. Kendall also noted Dr. Shuckett’s observation that Ms. White had complained
of lower back and buttock pain after the slip and fall. He then suggested:

One would conclude that the low
back pain therefore was directly attributable to the slip and fall with
aggravation of this pre-existing condition from the second accident in
question.

[115]     An
examination of Dr. Kendall’s various draft reports indicates that he had also qualified
his opinion as to the cause of Ms. White’s complaints of anterior left hip pain
arising from the labral tear. In his first two drafts he wrote: “[o]ne can only
conclude that her hip pain has arisen from the second motor vehicle accident in
question”. In the final version of his report he was less certain, concluding he
was unable to determine whether Dr. Vellani’s notation of “hip pain”, which he
made before the second MVA, refers to anterior hip pain or posterior buttock
pain. Dr. Kendall concluded that if the reference was to posterior buttock pain,
then the anterior hip pain was related to the second MVA.

[116]     Dr.
Kendall was also of the opinion that it had not been “definitively proven” the labral
tear was the source of the plaintiff’s hip pain.

[117]     In cross-examination,
Dr. Kendall agreed Ms. White told him she did not suffer from lower back pain
following the slip and fall accident and that the first time she claimed she experienced
significant lower back pain was after the second MVA. He also agreed that Ms. White
had told him that she had no symptoms of lower back pain after the first MVA.
Dr. Kendall then said he did not accept Ms. White’s history of when her lower
back pain emerged because of Dr. Vellani’s clinical records. He agreed there
was no mention in the ambulance crew report, the admitting VGH nursing records
or the emergency department records of the plaintiff complaining of pain or
injury in her lower back other than in the coccyx area after the slip and fall.
He also agreed it was likely, given the complaint of injury to the coccyx area,
that physicians or nursing staff at the hospital would have examined other
areas of the plaintiff’s spine for injury at the time of her admission.

[118]     While Dr.
Kendall had noted in his report that the plaintiff had neck pain following the
slip and fall, he agreed he erred in doing so.

[119]     When Dr.
Kendall was pressed on his interpretation of Dr. Vellani’s clinical note
”tender low back”, he agreed that in order to attribute any significant
clinical meaning to that term, one would need to defer to Dr. Vellani. He said
he did not know what Dr. Vellani meant by “tender”. Nor did he know what area
of the lower back Dr. Vellani examined.

[120]     Dr.
Kendall did acknowledge the second MVA “appeared” to have caused the majority
of Ms. White’s hip and back pain and that her injuries were “very difficult to
assess”. He found “her back seemed more severe after the second accident”.

Analysis

Liability for the Second MVA

[121]     Ms.
Vandervoort took the position that she was not responsible for the MVA on May
9, 2009.

[122]     I prefer
Ms. White’s version of events relating to this collision. I have several
reasons for drawing this conclusion.

[123]     First, I
accept the evidence of the independent witness, Ms. Holowinko. She gave her
evidence in a clear and straightforward manner and she also had a clear
recollection of the incident. She had no reason to make up her evidence to
support the plaintiff’s version of events. She did not know the plaintiff and
she had no vested interest in the outcome of this case.

[124]      I find Ms.
Holowinko’s evidence to be reliable. Her attention was drawn to Ms.
Vandervoort’s driving when the defendant pulled out immediately in front of her.
She also had a good view of the accident scene.

[125]     Second, I
find that Ms. Vandervoort version of the accident is not credible. Her initial
statement to ICBC, dated May 21, 2009, which was put to her in
cross-examination, contains a number of significant inaccuracies, including
whether the damage to her vehicle was on the left or right front side. At
trial, she sought to recant these inaccuracies as “errors”. If these
inaccuracies are errors, they are errors on substantial matters.

[126]     Further,
Ms. Vandervoort’s credibility was not assisted by the evidence she gave at her
examination for discovery. On at least five occasions in cross-examination, Ms.
Vandervoort agreed that she had given untruthful evidence about how long she
had been in the left-hand westbound lane on 72nd Avenue prior to colliding with
the plaintiff’s vehicle.

[127]     For these
reasons I find Ms. Vandervoort is 100% responsible for the second MVA.

Causation

[128]     Ms. White
must show on a balance of probabilities that her injuries would not have
occurred but for the negligence of the defendants. This issue engages the law
of divisibility.

[129]     The
British Columbia Court of Appeal recently reviewed the law on divisible
injuries in Moore v. Kyba, 2012 BCCA 361. Madam Justice Levine, writing
for the court, stated:

[32]      Much
judicial ink has been spilled concerning the characterization of multiple
injuries as divisible or indivisible, and the impact of that characterization
on the determination of causation and assessment of damages in a negligence
case.

[33]      The
legal principles underlying these concepts are clear, but explaining them to a
jury “is no easy task” (see Laidlaw v. Couturier, 2010 BCCA 59 at para.
40).  Nor is their application in varying particular factual contexts
always straightforward.

[34]      The
relevant principles were clearly set out in Athey v. Leonati, [1996] 3
S.C.R. 458.  Their elaboration in Blackwater v. Plint, 2005 SCC 58,
[2005] 3 S.C.R. 3, and by this Court in T.W.N.A. v. Canada (Ministry of
Indian Affairs), 2003 BCCA 670 at paras. 22-37, B.P.B. v. M.M.B.,
2009 BCCA 365, Bradley v. Groves, 2010 BCCA 361 and Laidlaw are
also helpful.

[35]      The
basic principles at play in this analysis are that a “defendant is not liable
for injuries which were not caused by his or her negligence” (Athey at
para. 24), and “the defendant need not put the plaintiff in a position better
than his or her original position” (Athey at para. 35).  These two
principles, which deal with the concepts of causation and assessment of
damages, were distinguished in Blackwater (at para. 78):

It
is important to distinguish between causation as the source of the loss and the
rules of damage assessment in tort. The rules of causation consider generally
whether “but for” the defendant’s acts, the plaintiff’s damages would have been
incurred on a balance of probabilities. Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway: Athey.

[36]      Thus,
whether a defendant is liable to a plaintiff for an injury is a matter of
causation; the amount of compensation the defendant must pay is a matter of
assessment of damages. 

[37]      The
concepts of divisible and indivisible injury are relevant at both stages of the
analysis.  At the stage of determining causation, the characterization of
the plaintiff’s injury or injuries as divisible or indivisible is relevant in
determining what the defendant is liable for.  As explained in Athey
(at paras. 24-25):

The
respondents submitted that apportionment is permitted where the injuries caused
by two defendants are divisible (for example, one injuring the plaintiff’s foot
and the other the plaintiff’s arm): Fleming, supra, at p. 201. Separation
of distinct and divisible injuries is not truly apportionment; it is simply
making each defendant liable only for the injury he or she has caused,
according to the usual rule.  The respondents are correct that
separation is also permitted where some of the injuries have tortious causes
and some of the injuries have non-tortious causes: Fleming, supra, at p.
202.  Again, such cases merely recognize that the defendant is not
liable for injuries which were not caused by his or her negligence. 

In
the present case, there is a single indivisible injury, the disc herniation, so
division is neither possible nor appropriate. The disc herniation and its
consequences are one injury, and any defendant found to have negligently caused
or contributed to the injury will be fully liable for it.

[Emphasis
added.]

[38]      In
this case, in determining causation, the jury had to determine whether the
appellant caused injury to the respondent, and if so, whether the rotator cuff
injury, the interscapular pain, and the bicep tear were divisible injuries or
an indivisible injury.  If they were divisible, the appellant could only
be found to be liable for the interscapular pain caused by the motor vehicle
accident.  If they were indivisible, the appellant would be liable for
that indivisible injury. 

[39]      The
appellant takes no issue with the trial judge’s instruction to the jury
concerning divisible and indivisible injury in the context of determining
causation.

[40]      The
appellant argued at trial that no injuries were caused by the motor vehicle
accident and he was not liable for any of the respondent’s claimed
losses.  The jury clearly rejected that argument.

[41]      At
the stage of assessment of damages, the question is what compensation the
plaintiff is entitled to receive from the defendant. 

[42]      If
the injury is divisible, then the plaintiff is entitled to be compensated for
the injury caused by the defendant.  In this case, if the interscapular
pain was a divisible injury, then the respondent was entitled to compensation
for his loss flowing from that injury. 

[43]      If
the injury is indivisible, then the plaintiff is entitled to be compensated for
the loss flowing from the indivisible injury.  However, if the plaintiff
had a pre-existing condition and there was a measurable risk that that
condition would have resulted in a loss anyway, then that pre-existing risk of
loss is taken into account in assessing the damages flowing from the
defendant’s negligence.  This principle is called the “crumbling skull”
rule.  As explained in Athey (at para. 35):  “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.”

[44]      For
a recent example of a reduction in damages to reflect a pre-existing condition,
see Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331.

[130]     If Ms.
White’s injuries are divisible, then the defendants are only liable for those
injuries for which they are responsible. If the injuries are indivisible, then
the defendants are fully liable for the losses flowing from her indivisible
injuries. Divisibility will turn on whether I can clearly identify who caused
what injury.

[131]     It must also
be recalled that the plaintiff has expressly waived her right to recover any
portion of her loss found to be attributable to the excluded defendants in the
slip and fall matter and for which the defendants Ms. Vandervoort and Mr.
Gehricke could claim from the excluded defendants contribution, indemnity or
apportionment. If I find the injury is indivisible, liability will not extend
to the defendants in this matter.

[132]     Accordingly,
I must draw factual findings on the causes of Ms. White’s injuries. This is no
easy task. As reviewed earlier, the medical experts have provided differing
opinions on whether Ms. White’s injuries can be attributed to the slip and fall
or the MVAs. Also, in several cases, particularly in Dr. Vellani’s evidence, there
were internal inconsistencies in the medical opinions proffered. These
inconsistencies bear on the weight of that evidence.

[133]     Notwithstanding
the difficulty of assessing this evidence, it is necessary to unravel the
different sources of injury. As stated in Blackwater v. Plint, 2005 SCC
58:

74.       … Untangling the
different sources of damage and loss may be nigh impossible. Yet the law
requires that it be done, since at law a plaintiff is entitled only to be
compensated for loss caused by the actionable wrong. It is the “essential
purpose and most basic principle of tort law” that the plaintiff be placed in
the position he or she would have been in had the tort not been committed: Athey
v. Leonati, [1996] 3 S.C.R. 458, at para. 32.

[Emphasis in original.]

[134]     In Scoates
v. Dermott, 2012 BCSC 485, Mr. Justice Smith was faced with a similar issue
of conflicting medical evidence. He observed:

[140]    Faced with this
conflict in the medical evidence, which is at least partially based on the
frailties of the clinical record and the differing interpretations that some
doctors place on notes made by others, I must also return to the basic
principle that causation is ultimately a question of fact for the court. As the
Supreme Court of Canada said in Snell v. Farrell, [1990] 2 S.C.R. 311, at
p. 328:

Causation need not be determined by scientific precision. It
is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All
E.R. 475, at p. 490:

…essentially a practical question of fact which can best be
answered by ordinary common sense rather than abstract metaphysical theory.

[135]     This
reasoning is particularly apposite in this case.

[136]     I make the
following factual findings on causation.

[137]     It is
clear and undisputed that the plaintiff’s concussion and subsequent headaches, tailbone,
dental and facial injuries are entirely attributable to the slip and fall accident
of February 26, 2009. These injuries are divisible from her other injuries. The
plaintiff has no claim against the defendants for damages arising from those injuries
and she has expressly waived that claim.

[138]     At dispute
is whether Ms. White’s lower back and hip injuries are related to the slip and
fall.

[139]     The
defendants say the slip and fall “got the ball rolling” and was the cause of her
lower back and left hip injuries. The defendants rely on Dr. Vellani’s evidence
in support of their position.

[140]     I do not
accept the defendants’ position. In my view it is not supported by the body of
the evidence taken as a whole.

[141]     At the
outset, I will comment on the strength of the plaintiff’s evidence. I am
satisfied that the plaintiff has accurately related her injuries. Ms. White
testified that she did not experience pain in her lower back, left hip and
groin until the second MVA. Ms. White has consistently described the second MVA
as the source of these areas of pain to a number of attending physicians and
caregivers. For instance, she reported the second MVA as the source of this
pain to Dr. De Vita in November 2009 and Ms. Belot in June 2009, several months
after the accident. She also made the same report to Drs. Gilbart and Kendall during
their independent medical examinations.

[142]     I find the
evidence of Dr. Vellani does not in fact support the position of the defendants.
His notes are telling in this respect. When Dr. Vellani saw Ms. White on March
4 and 9, 2009, after the slip and fall accident and before the first MVA, he
did not make any notations of back pain. It was only when she met with him
after the first MVA, on April 21, 2009, that she complained of neck, shoulder
and back pain. Dr. Vellani had palpated her lower back and made the notation
“tender lower back … she tell me prev. injury … good ROM back.” Dr. Vellani
testified at trial that he believed his notation of “previous injury” related
to the slip and fall. In my view, Dr. Vellani must be mistaken in attributing
such pain to the slip and fall accident because he does not make any previous
reference to lower back pain in his clinical notes.

[143]     Furthermore,
when Dr. Vellani’s notations were put to Dr. Kendall for his interpretation, he
testified the reference to “‘good ROM” (range of motion) indicated that Ms.
White had not sustained a back injury after the first MVA.

[144]     Dr.
Kendall’s interpretation of Dr. Vellani’s notes is buttressed by the reports prepared
by the ambulance crew, the VGH admitting nurses and the VGH emergency
department in regard to Ms. White’s slip and fall. None of these reports make reference
to any back pain or injury to this area of her body other than tail bone pain.

[145]     In any event,
I note that Dr. Vellani’s medical report, dated June 8, 2010, summarized Ms.
White’s injuries resulting from the slip and fall as “soft tissue injuries of
the face, nose and the area of the tailbone, and dental injuries….” Notably,
this summary does not mention lower back or hip pain. His July 20, 2010 medical
legal report described Ms. White’s other ongoing symptoms of lower back and
left hip pain as related to the MVAs.

[146]     Dr.
Shuckett’s evidence does not support the defendants’ position either.

[147]     While Dr.
Shuckett does say in her first report of August 30, 2010 that “she had low back
pain, buttock pain and a bruised tailbone” as a result of the slip and fall,
that comment, as other comments in her reports proved to be, was in error. In
her last report, dated June 5, 2012, she clarified that the labral tear in the
plaintiff’s left hip was probably caused by the second MVA and that it was
following that accident the plaintiff “started to develop hip pain for the
first time.”

[148]     I note
that in her August 30, 2010 report, Dr. Shuckett also recounted the plaintiff’s
injuries sustained in the second MVA described to her as follows: “the
patient’s back and hip were hurting right away. She had low back pain and left
true hip pain like a stabbing in the hip.”

[149]     When Dr.
Shuckett’s reports are read together, her view that the lower back and hip pain
originated from the slip and fall accident makes little sense. I accept the
evidence of the plaintiff over that of Dr. Shuckett as to when her lower back
and hip pain commenced as she has been consistent in reporting the sources of
her pain throughout.  Significantly, those reports of the origination of her
pain were all made well prior to her settlement of her slip and fall claim.

[150]     The
defendants sought to impugn Ms. White’s credibility by asserting she had not
been candid and that she was an unreliable witness. The defendants referred to
anomalies in the plaintiff’s evidence relating to the purchase of bus tickets,
the preparation of an inaccurate spreadsheet for special damages and her
account of the second MVA.

[151]     I have
already found the plaintiff has been consistent in her evidence in regard to
the second MVA. While there were inaccuracies in some of the plaintiff’s
accounting of her special damages, these inaccuracies can occur in MVA cases
when plaintiffs are required to put forward proof of their expenses. I find
that any such inaccuracies were the result of an honest intent to keep records
to assist the court in determining the amount of special damages incurred.

[152]     Accordingly,
I am satisfied on balance that the injuries Ms. White sustained to her lower
back and left hip were caused solely by the second MVA and are unrelated to
both the slip and fall and the first MVA. These injuries are divisible and
solely attributable to the negligence of Ms. Vandervoort.

[153]     I conclude
the first MVA caused soft tissue injuries to Ms. White’s shoulder, upper back
and neck. These injuries were new and unrelated to the slip and fall accident.

[154]      It is
possible that Ms. White may have aggravated her tailbone somewhat, although Ms.
White testified she cannot remember. She also continued to suffer headaches
from the slip and fall accident. I have already found these injuries are not compensable
and have not taken them into account in my assessment of damages.

[155]     Ms.
White’s psychological condition must be treated somewhat differently.

[156]     Dr. De
Vita identified several underlying psychological causes for treatment. Ms.
White continued to experience flashbacks of her slip and fall injury to her
face. She was particularly self-conscious of her appearance caused by the
injuries to her face. However she was also worried she would not be able to
keep up with demands of a new job and she was frustrated by her physical
limitations and the challenge of returning to her pre-injury status. As Dr. De
Vita noted, “the cumulative impact of three accidents in close succession was
particularly difficult for Ms. White to come to terms with. She felt fearful
and agitated.”

[157]     I find Ms.
White’s emotional reaction immediately following the first MVA was triggered by
the injuries sustained in the slip and fall. This is evident in her emotional reaction
after having struck her face on the steering wheel and experiencing a flash
back to the slip and fall. She believed she had re-injured her face. This
psychological trauma is indivisible and non-compensable.

[158]     However,
the psychological trauma flowing from her physical limitations is divisible, as
this trauma is caused by the injuries she sustained in the second MVA from
which she has failed to recover. I conclude this mental trauma is compensable.

Assessment of Damages

Non-Pecuniary Damages

[159]     The
principles to be considered and the factors that will influence an award of
non-pecuniary damages were set out by Madam Justice Kirkpatrick in the
oft-cited case Stapley v. Hejslet, 2006 BCCA 34 at para. 46 (leave to
appeal refused [2006] S.C.C.A. No. 100) (Stapley). She created a
helpful, non-exhaustive list of factors that are to be taken into account in
determining the appropriate award. These factors include the age of the
plaintiff, the nature of the injury, the severity and duration of the pain, disability,
emotional suffering, loss or impairment of life, impairment of family, marital
and social relationships, impairment of physical and mental abilities, loss of
lifestyle and the plaintiff’s stoicism.

[160]     While
reference to other cases is useful as a guide to the court for the assessment
of damages, non-pecuniary damages must be determined in each case based upon
its unique circumstances.

[161]     The
plaintiff seeks non-pecuniary damages in the range of $125,000.00 to $150,000.00.
She relies on Klingsat v. Westminster Savings Credit Union, 2001 BCSC
1701; Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455; Zawadzki
v. Calimoso, 2011 BCSC 45; Verge v. Chan, 2012 BCSC 876; and Bouchard
v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762. (I note the British
Columbia Court of Appeal varied the non-pecuniary damages awarded by 20% in Bouchard:
2012 BCCA 331).

[162]     The
defendants argue that an appropriate range of damages is between $30,000.00 and
$40,000.00. They rely on Laroye v. Chung, 2007 BCSC 1478; Mohamadi v.
Tremblay, 2009 BCSC 898; Sandher v. Hogg, 2010 BCSC 1152; and Olianka
v. Spagnol, 2011 BCSC 1013.

[163]     The
defendants says the injuries the plaintiff suffered from the first MVA were
“extremely minor”, causing only “transient neck and shoulder” injury. The
defendants further submit this injury is fully resolved now. While the second MVA
may have aggravated the plaintiff’s lower back and hip injuries, those injuries
have returned to their baseline, that is, their condition prior to the MVAs.

[164]      I have
reviewed the authorities cited by both counsel. As noted above, this case must
be decided on its own unique facts.

[165]     Ms. White suffered
injuries to her upper back, shoulders and neck in the first MVA and to her
lower back and left hip (including a hip labral tear) in the second MVA. I have
found these injuries were separate and apart from any injury sustained in the
slip and fall and are divisible from that incident.

[166]     I accept
Dr. Vellani’s opinion in his June 8, 2010 report that Ms. White was fully recovered
from the slip and fall by that date.

[167]     Ms. White attended
physiotherapy, massage therapy, a naturopath, a chiropractor, an acupuncturist
and a personal trainer in her efforts to return to her pre-accident condition.
These efforts have not been met with success. She continues to attend
physiotherapy sessions and she seeks treatment from her chiropractor. She also
regularly attends Aquafit classes and utilizes gym equipment at home for
rehabilitation. Unlike many plaintiffs who appear before the court, Ms. White’s
efforts to restore her health and physical conditions have been impressive.

[168]     Ms. White continues
to suffer from occasional neck and upper back pain. She described her neck pain
as “mild” to Dr. Gilbart when he saw her in the fall of 2011. Ms. Belot
reported to the Court that Ms. White’s neck pain was fully resolved.

[169]     Ms.
White’s lower back and hip pain are far more significant disabling conditions,
particularly given her active lifestyle before the unfortunate series of
incidents in spring 2009. She is now unable to engage in those activities she
once enjoyed. She even has difficulty walking for any distance. She has
difficulty sitting for any length of time, which is particularly problematic
for taking part in meetings at work.

[170]     The
medical opinions of Drs. Gilbart and Shuckett are that Ms. White will continue
to suffer from pain. Dr. Gilbart was of the view that she would be able to
continue in her employment but that she may have to decrease her activities to
avoid aggravating her hip and back pain. He was of the view that she had a
permanent partial disability and was “at an increased risk of pain in the
future.”

[171]     In her January
24, 2012 report, Dr. Shuckett opined:

My opinion has not significantly
changed from the opinion I have given already. I think that, to a large degree,
she is going to have to live within the constraints of her symptoms. Over time,
there is a good chance that she will develop progressive problems in the left
hip by virtue of the labral tear and her architecture of femoral acetabular
impingement which will place her at greater risk of future osteoarthritis.
There is a significant chance that, as she is in her fifties and sixties for
example, or even perhaps earlier, she may come to the need for consideration of
total hip replacement on the left.

[172]     I find Ms.
White’s mental health issues as they relate to her physical limitations for
which she has sought treatment from Dr. De Vita is compensable. As I have
stated, one of the significant factors affecting her emotional health was her
inability to return to her pre-MVA physical condition, diminishing her
self-esteem. Her physical problems have also caused her to feel as if she is
being held back from advancement in her career.

[173]     I have
reduced my award to reflect the exclusion of the psychological trauma
occasioned by the slip and fall.

[174]     I award
the plaintiff $85,000.00 in non-pecuniary damages.

Loss of Past Income

[175]     Ms. White
claims for the lost opportunity to work for NewAd from the date of the MVAs to
the date of trial. I agree that she has sustained a loss of past income. That
loss is solely attributable to the injuries sustained in the second MVA.

[176]     I award
Ms. White $14,000.00 for income lost during 2009, 2010 and 2011 up until the
trial in 2012.

Loss of Future Earning Capacity

[177]     The
principles that govern awards for loss of future earning capacity were
summarized by Mr. Justice Walker in Ruscheinski v. Biln, 2011 BCSC 1263
(Ruscheinski):

[114]    For
an award under this head of damages to be made, Ms. Ruscheinski must
demonstrate a “substantial possibility that lost capacity will result in
pecuniary loss”: Perren v. Lalari, 2010 BCCA 140, at paras. 4, 7,
21, 31, and 32, 137 D.L.R. (4th) 729; Steward v. Berezan, 2007 BCCA 150
at para. 17, 64 B.C.L.R. (4th) 152. A future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Perren at para. 30.

[115]    If
the plaintiff discharges the burden of proof, then he or she may prove
quantification of that loss by an earnings approach or by a capital asset
approach: Perren at para. 32; Chang v. Feng, 2008 BCSC 49 at
para. 76, 55 C.C.L.T. (3d) 203. 

[116]    Garson
J.A. wrote in Perren at para. 11 that where the loss cannot be
measured in a pecuniary way, “the correct approach [is] to consider the factors
described by Finch J., as he then was, in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353. In Brown, he said at para. 8:

The means
by which the value of the lost, or impaired, asset is to be assessed varies of
course from case to case. Some of the considerations to take into account in
making that assessment include whether:

1.    
The plaintiff has been rendered
less capable overall from earning income from all types of employment;

2.    
The plaintiff is less marketable
or attractive as an employee to potential employers;

3.    
The plaintiff has lost the ability
to take advantage of all job opportunities which might otherwise have been open
to him, had he not been injured; and

4.    
The plaintiff is less valuable to
himself as a person capable of earning income in a competitive labour market.

[117]    In
para. 12 of Perren, Garson J.A. said:

These
cases, Steenblok, Brown, and Kwei, illustrate the two
(both correct) approaches to the assessment of future loss of earning capacity.
One is what was later called by Finch J.A. in Pallos the ‘real
possibility’ approach. Such an approach may be appropriate where a demonstrated
pecuniary loss is quantifiable in a measurable way; however, even where the
loss is assessable in a measurable way (as it was in Steenblok), it
remains a loss of capacity that is being compensated. The other approach is
more appropriate where the loss, through proven, is not measurable in a
pecuniary way. An obvious example of the Brown approach is a young
person whose career path is uncertain. In my view, the cases that follow do not
alter these basic propositions I have mentioned. Nor do I consider that these
cases illustrate an inconsistency in the jurisprudence on the question of proof
of future loss of earning capacity.

[118]    A
useful summary of the principles governing the determination and measure of an
entitlement of an award for loss of income earning capacity is set out at
para. 32 in Perren:

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 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.

[Emphasis
in original.]

[178]     The
question I must determine is whether Ms. White has established there is a real
and substantial possibility of a future event leading to an income loss.

[179]     Dr. Shuckett
has opined there is a “significant chance” Ms. White will require a total left
hip replacement when she reaches her fifties, or perhaps even earlier. I note
her expertise in making this finding and I reject the defendants’ position that
no weight can be accorded to this opinion. Ms. White also suffers from chronic
pain in her back and, as noted by Dr. Gilbart, it “will probably continue.”

[180]     I am
satisfied that Ms. White has discharged the burden of proof of establishing her
entitlement to compensation for loss of future earning capacity. Her injuries
are permanent and will require surgical intervention in the future.

[181]     Given her
age, I find the capital asset approach is the appropriate way by which to
assess damages for this loss, taking into consideration the four factors
excerpted in Ruscheinski at para. 116. I have not been provided with a
baseline assessment of what the plaintiff could earn to retirement and the
impact of the MVAs on her earning capacity. That said, the capital asset
approach involves the balancing of subjective factors, recognizing that a
purely arithmetical approach is unreasonable.

[182]     Ms. White
has been rendered less capable overall from earning income by the injuries she
sustained in the second MVA. While she has been able to maintain her current
employment, she finds it difficult to sit for lengthy periods of time during
meetings and on flights. She believes she has not been able to advance in her
career as a result, making her less valuable to herself as a person capable of
earning income.

[183]     There is
no evidence that Ms. White’s current employment is at risk. Her employer has
been accommodating in allowing her time off for medical appointments. Ms. White
also testified that she plans to return to school to complete courses in
graphic design to enhance her opportunities for promotion.

[184]     Notwithstanding
Ms. White’s apparent job security with her present employer, I must make
allowance for the possibility that she may lose her job and find herself in the
job market competing against others, or in a position where she may lose income
because of the necessity of a hip replacement or another physical problem
resulting from the second MVA. She is less marketable as a potential employee since
she would find it difficult to participate in any job that involved prolonged
sitting or standing.

[185]     She has
lost the ability to take advantage of all job opportunities that might arise
and she is less valuable to herself as a person capable of earning income in a
competitive labour market.

[186]     I have
also accounted for the fact that Ms. White’s health and earning capacity may
have been affected by her pre-existing congenital condition regardless of the
second MVA, as described by Drs. Shuckett and Vellani.

[187]     I have
allowed a moderate award for her loss of contract work with NewAd, taking into
account the probability that even without the accidents, her advancement at Uniglobe
would diminish her time available for part time contract work.

[188]     I will
note that in Wong v. Hemmings, 2012 BCSC 907, cited by Ms. White, the
plaintiff in that matter received $150,000.00 for loss of future earning
capacity. In that case, the plaintiff was a 36 year old mother that suffered
permanent injury in her shoulder, which had affected her ability to perform her
role as a server. She had been considered an excellent server by her employer.
The court found it was highly likely that she would not be able to continue in
this career. However, her work options, unlike Ms. White, were limited by her
lack of vocational training.

[189]     I set
damages for lost earning capacity at $120,000.00.

Claim for Loss of Housekeeping

[190]     Damages
may be awarded for loss of housekeeping capacity even if the plaintiff has not
incurred any actual expenses for hired services: see Kroeker v. Jansen (1995),
123 D.L.R. (4th) 652 at para. 9 (application for leave to appeal dismissed
[1995] S.C.C.A. No. 263); Easton v. Chrunka, 2006 BCSC 1396 at para. 45;
and Dykeman v. Porohowski, 2010 BCCA 36 at para. 28.

[191]     Ms. White
lives in a one bedroom apartment with her boyfriend. The two share the
housekeeping chores. Ms. White performs the lighter chores while her boyfriend
does the laundry and heavier tasks.

[192]     Ms. White
has inquired into housekeeping services and, based on a cost of $80.00 (two
hours) every two weeks, she has determined an annual cost for housekeeping in
the amount of $1,920.00. Ms. White’s counsel claims $66,560.00 to cover that sum.

[193]     In my view
it is reasonable to make an award compensating Ms. White under this head of
damages. It is clear her back and hip pain prevent her from performing some of
the more heavy household chores. It is, however, also reasonable that her
partner participate in performing some of those chores.

[194]     I award $25,000.00
under this head of damages.

Cost of Future Care

[195]     As
discussed in Prempeh v. Boisvert, 2012 BCSC 304 (Prempeh), an award
for cost of future case must be based on medical evidence as to what is
reasonably necessary to preserve and promote the plaintiff’s mental and
physical health. In assessing cost of future care, the court should consider
whether the plaintiff would likely use the items or services in the future.

[196]     Madam
Justice Dardi in Prempeh observed that this assessment is not a precise
exercise:

[108]    he
assessment of damages for cost of future care necessarily entails the
prediction of future events: Courdin v. Meyers, 2005 BCCA 91 at
para. 34; Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9,
[2002] 1 S.C.R. 205 at para. 21. The courts have long recognized that such
an assessment is not a precise accounting exercise and that adjustments may be
made for “the contingency that the future may differ from what the evidence at
trial indicates”: Krangle at para. 21; X. v. Y. at
para 267. The extent, if any, to which a future care costs award should be
adjusted for contingencies depends on the consideration of the specific care
needs of the plaintiff and the expenditures that reasonably may be expected to
be required – taking into account the prospect of any improvement in the
plaintiff’s condition or conversely the prospect that additional care will be
required: O’Connell v. Young, 2012 BCCA 57 at paras. 67-68; Gilbert
v. Bottle, 2011 BCSC 1389 at para. 253.

[197]     I award
Ms. White the following amounts for cost of future care:

a)    Psychologist (intervention
to manage pain and stress):

12 sessions x $160.00 per session,
or $1,920.00.

b)    Physiotherapy

twice per month for six months and
monthly thereafter for 12 months x $75.00 per session, or $1,800.00.

c)     Gym pass
membership

$300.00 per year x ten years, or
$3,000.00.

d)    Aquafit
(recommended by Dr. Kendall)

$250.00 per year x ten years, or
$2,500.00.

e)    Bus tickets

$250.00 per year x 10 years, or $7,500.00.

[198]     I make the
award for the cost of bus tickets on the basis that prior to becoming involved
in these three incidents, the plaintiff was able to walk to work. As a result
of the injuries to her hip and lower back, she can no longer do so. I consider
this claim to be a reasonable one. I have reduced the amount claimed by the
plaintiff to account for the contingency that she may change jobs and be
required to take the bus in any event.

[199]     I award
$16,720.00 for cost of future care expenses.

Special Damages

[200]     The
plaintiff claims special damages in the amount of $21,239.53. I accept that
most, but not all, of the costs claimed are reasonable and attributable to the
defendants.

[201]     I decline
to award damages for one half of Dr. De Vita’s account for psychological
services ($3,810.00). I also decline to award damages altogether for the use of
Fisico Personal Training Services ($1,440.00), which were not incurred as a
result of a medical referral. I have reduced her claimed cost of bus tickets by
10% ($96.77) to account for duplication in accounting. Finally, Ms. White
cannot be compensated for prescription receipts that relate to the injury to
her nose and teeth. Those receipts were put before the Court. Counsel should be
able to determine the amount to deduct.

[202]     The total
amount of special damages then, subject to any issue arising over the
prescription receipts, is $15,892.76.

Conclusion

[203]     In summary,
the damages awarded to the plaintiff are assessed as follows:

1.     General
Damages                                           $85,000.00

2.     Past Lost
Income                                            $14,000.00

3.     Loss of
Future Earning Capacity                      $120,000.00

4.     Loss of Housekeeping                                     $25,000.00

5.     Cost of Future
Care                                         $16,720.00

6.     Special Damages                                            $15,892.76

[204]    
The plaintiff is entitled to recover her costs at Scale B.

“Greyell
J.”