IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130508

Docket: 12 0499

Registry:
Victoria

Between:

Deborah Lee
Thibeault

Plaintiff

And

James Ian
MacGregor

Defendant

Before:
The Honourable Mr. Justice Weatherill

Reasons for Judgment

Introduction

[1]            
This action arises out of a rear-end collision that occurred on April
17, 2010 (the “accident”).  Liability has been admitted.

[2]            
The plaintiff says she is suffering from continuous and unrelenting pain
that she attributes to the accident.  She says the pain has ruined her life.  She
seeks non-pecuniary damages, cost of future care and special damages.

[3]            
The defendant says that the plaintiff’s accident-related injuries, if
any, were minor, resolved in a short period of time and that any ongoing
medical issues are the result of pre-existing conditions, including
psychological disorders, severe chronic pain, disabilities and her failure to
mitigate with proper therapy.

Evidence at Trial

The Plaintiff

[4]            
The plaintiff is a 50 year old disabled mother of four children.  By any
measure, her family history is traumatic, replete with abusive relationships
and drug use.  It appears that, in recent years, she has been able to improve
those aspects of her life.

[5]            
She left school after grade 11 to take up full time employment as a
nurse’s aide in Victoria.  She was employed in that capacity for over 28 years
until 2008 when she strained her lower back while lifting a patient.  She received
temporary workers’ compensation benefits through WorkSafe BC.  When she
returned to work a few months later, she was unable to perform her duties due
to back pain.  She was laid off by her employer and, since then, has been on
welfare.

[6]            
She found that smoking marijuana relieved her back pain.  She has been
imbibing in medical marijuana ever since.

[7]            
From 2006 to 2008 the plaintiff used cocaine.  In 2009 she enrolled in a
drug counselling program.  She claims that she has not used cocaine since that
time.

[8]            
In September 2008, the plaintiff had surgery to remove ovarian cysts. 
As a result of complications that arose during that surgery, the plaintiff
underwent further surgery to remove a section of her bowel in October 2008.  Since
then, she has suffered from diarrhea.

[9]            
In late 2008, the plaintiff qualified for and has since been receiving
CPP disability benefits.  She has also been receiving provincial disability
benefits since 2009.  She qualified for provincial disability benefits with the
assistance of Dr. Salmaniw, her family physician of 24 years, whose letter
of support prepared in or around August 2009 stated the following, in relevant
part:

Mr. [sic] Thibeault suffers from scoliosis, degenerative disk
[sic] disease, general anxiety disorder with panic attacks, depression, and
chronic diarrhea.  I can confirm that her conditions are severe, that they
cause her to have continuous restrictions with day to day activities, and that
she require [sic] continuous assistance with many of her tasks.

When asked what her daily pain is like on a scale of zero to
ten, ten being the most severe and zero being no pain, Ms. Thibeault noted that
her average pain level is at a nine.  She experiences this pain when walking,
sitting, and standing.  When walking, Ms. Thibeault walks at a significantly
slower pace.  When asked how long it takes her to walk a block, she said 10-15
minutes due to the pain….Ms. Thibeault also has difficulty with public
transportation because of the pain involved in sitting.  She is unable to bend
and currently stores things in high locations.  She is also unable to do
laundry, basic housework, or shop for groceries by herself….In addition to
these restrictions, Ms. Thibeault is also continuously restricted in her
ability to dress herself.  She reports that it currently takes her 20 minutes o
[sic] put on clothes due to the pain in her back…

She is unable to sit for more than 30 minutes…She takes
approximately 5 minutes to get in or out of a car due to her back pain.

…

Ms. Thibeault suffers from
chronic depression, anxiety, and panic attacks when she is stressed….

[10]        
On cross-examination, the plaintiff agreed that Dr. Salmaniw’s letter
accurately described her condition before the accident.

[11]        
In a medical report dated December 21, 2009, Dr. Salmaniw wrote that he
did not expect any improvement in the plaintiff’s degenerative lumbar disc
disease or scoliosis and that her condition was likely to gradually worsen.

[12]        
The accident occurred a little less than four months later on the plaintiff’s
48^th birthday.  She was stopped at the intersection of Glanford
Avenue and McKenzie Avenue in Victoria waiting for traffic to clear.  Her head
was turned to the left.  Suddenly, her 1986 Ford Tempo was rear-ended by the
defendant’s 1991 Honda Civic.  She did not see the defendant’s vehicle but, due
to the force of impact, she estimates the defendant’s vehicle was travelling at
approximately 30 to 40 kph at the time of impact.  The defendant immediately apologized
to the plaintiff for the collision, told her that he had not been paying
attention and admitted fault.

[13]        
There was no damage to the plaintiff’s vehicle.

[14]        
The plaintiff testified that, within 30 minutes of the accident, she
began to feel pain in the left side of her neck, shoulder and shoulder blade. 
She could not lift her left arm without pain.  There was numbness in her left
hand.  She also had pain in her left lower back.  She attended a medical clinic
three hours later.  The doctor’s examination revealed neck, shoulder and upper
back tenderness and strain.  She was prescribed muscle relaxants and
physiotherapy was recommended.

[15]        
That evening she had to leave her birthday celebration due to neck and
shoulder pain.  She testified that she did not sleep at all that night because
of the pain.  She said that, in the days that followed, the pain worsened.

[16]        
She testified that the following pain symptoms arose after the accident:

a)   
headaches on the
left side.  She claims that her headaches have diminished since the accident
but she still suffers from them approximately twice per week.  Each headache
lasts 15-20 minutes and, on occasion, causes her to vomit.  She relieves the
pain with Advil.  She claims she was not prone to headaches prior to the accident;

b)   
her left neck and
shoulder are painful every day and she “can hardly do anything” as a result. 
She says her symptoms have not improved since the accident.  She says she
cannot get comfortable in bed at night and her sleep is interrupted by this
pain;

c)    
her left neck and
shoulder pain travels down to her left lower back;

d)   
her neck audibly
“cracks”;

e)   
initially she was
unable to lift her left arm above her head.  However, with physiotherapy, this
problem resolved approximately two months after the accident;

f)     
she still has
occasional tingling and numbness in her left hand;

g)   
commencing
approximately one year after the accident, she developed numbness in her right
hand;

h)     although she had occasional sharp
pain in her lower back prior to the accident, she was able to fully function. 
Since the accident the pain in her lower back has worsened and she can no
longer function.

[17]        
The plaintiff testified that she is no longer able to participate in the
social activities she enjoyed prior to the accident, such as dancing, karaoke,
walking with her grandson and other relatives and friends and visiting friends
for coffee.

[18]        
She says that she was sexually active prior to the accident.  However,
since then, she is in too much pain and has had “no sex”.

[19]        
She testified that a typical day for her now is getting out of bed at 6:00
a.m. to drive Murray Thiele (her live-in boyfriend) to work, which is a 30
minutes drive each way.  She then spends most of the day lying on the couch
watching TV.  She picks Mr. Thiele up from work at 4:30 p.m.  He prepares their
evening meal and she goes to bed at 10:00 p.m.

[20]        
She claims that she slept well at night prior to the accident but, since
the accident, she does not “sleep at all at night”.  Later, she offered a more
qualified response: “sometimes, I get a couple hours sleep”.

[21]        
After the accident, the plaintiff attended numerous physiotherapy
treatments, initially with Rod Mitchell of Langford Physiotherapy & Medical
Acupuncture and subsequently with Jeff Harvie of Blue Water Physiotherapy.  Mr.
Mitchell’s physiotherapy approach was traditional.  It usually provided her
with temporary pain relief for up to one day.  She described Mr. Harvie’s
physiotherapy treatments as more “hands on”.  Mr. Harvie kneaded her neck and
back and prescribed daily exercises.  She testified that she had temporary pain
relief after Mr. Harvie’s treatments for up to three days.  Initially, she
visited Mr. Harvie twice per week.  She missed several appointments with him because
of her chronic diarrhea and other medical issues.  She was charged a
cancellation fee on each occasion.

[22]        
Dr. Salmaniw advised her to stop her physiotherapy treatment with
Mr. Harvie.  She did so but later resumed them because she felt her
condition was regressing without his treatments.  Since the fall of 2012, the
plaintiff has been seeing Mr. Harvie once per week.

[23]        
The plaintiff was unable to pay for her physiotherapy treatments.  She
owes Mr. Mitchell $2,860.00 and Mr. Harvie $10,511.21.00 (a total of $13,371.21). 
She has agreed to pay those physiotherapy bills from the proceeds, if any, of
this lawsuit.

[24]        
The plaintiff was also referred to a psychologist, Dr. Reeves, who by
November 2012, successfully treated her driving fear and anxiety such that
there are no further psychological effects arising from the accident.

[25]        
Dr. Vondette conducted an independent medical examination (“IME”) of the
plaintiff in October 2012.  The plaintiff testified that Dr. Vondette’s
examination of her involved him pushing his knuckles into her neck and shoulder
area which caused her pain.  He also had her do various other physical
movements which she said were painful as well.  She testified that Dr.
Vondette’s examination of her began at 2:25 p.m. and ended at 2:36 p.m. 
She then changed from a gown she had been given into her street clothes and
left his office at 3:12 p.m.  As will be seen below, Dr. Vondette’s version of
this IME is quite different.

[26]        
On cross-examination, the plaintiff denied advising Dr. Vondette that
her chief complaint associated with the accident was her lower back.  She
insisted she told him that her neck, upper back and lower back were all chief
complaints.  She also denied advising Dr. Vondette that the tingling/numbness
in her right hand was in the 4^th and 5^th fingers.  Rather
she insisted that she told Dr. Vondette these symptoms were located in her 2^nd
and 3^rd fingers.

[27]        
The plaintiff told Dr. Vondette that she had not previously used
cocaine.  She said she lied because she was embarrassed.

[28]        
The plaintiff also admitted to telling Dr. Salmaniw that she was not
taking drugs and that she had been untruthful in that regard.  She eventually
confessed her drug problem to Dr. Salmaniw after toxicology testing confirmed
her use of cocaine and marijuana.

[29]        
On cross-examination she also admitted to being involved in an accident
in 1999 when she was a passenger in a vehicle that was rear-ended by a taxi
travelling at 70-80 kph.  She initially denied that the lower back injury she
sustained was “serious”.  However, after her examination for discovery
transcript was put to her, she admitted that her back injury from that accident
was, in fact, serious.  She agreed that, in 2009, she advised Dr. Salmaniw that
she had “chronic severe lower back pain since 1999”.

[30]        
On May 5, 2012 and again on December 5, 2012, the plaintiff saw Dr.
Lynne MacKean, a physical medicine and rehabilitation expert.  The latter
consultation was for the purpose of obtaining a medical-legal report to be used
at trial.  In her medical-legal report, Dr. MacKean wrote that the plaintiff
told her she did not have chronic neck or back pain problems following the 1999
accident.  During cross-examination the plaintiff was adamant that she told Dr.
MacKean of her chronic back pain.  This inconsistency was not put to Dr.
MacKean during cross examination.

[31]        
The plaintiff told Dr. MacKean that she had no history of problems with
headaches prior to the accident.  Her medical records pre-dating the accident were
put to her on cross-examination.  They revealed the following prior complaints
of headaches:

a)     June
26, 2008 Emergency Room hospital admission records: the plaintiff had been
drinking and using cocaine and marijuana.  She admitted to having headaches
associated with her use of cocaine.  The hospital discharge summary states: “[t]his
lady came in with severe headache and malaise”;

b)     September
17, 2008 report from Dr. Hunt: “[i]n June, Deborah developed bilateral
lower pelvic pain.  This was associated with headaches and she was admitted to
the hospital for a week where she was followed by a house doctor.  Despite this
report, the plaintiff was adamant that she had only had one headache on that one
day; and

c)    
January 1, 2010: the plaintiff was admitted to hospital after a
fight with her boyfriend, complaining, inter alia, of headaches.

[32]        
The plaintiff also admitted on cross-examination that her pre-existing
bowel and pelvic problems keep her up at night.

[33]        
The plaintiff agreed on cross-examination that the results of a CT Scan,
ultra sound and X-ray of her neck and back after the accident were negative and
showed no abnormalities other than age-related degeneration in the area of the
C6-7 spine.

[34]        
When asked about Dr. Salmaniw’s August 2009 letter in which she is
described as needing 10-15 minutes to walk one block, 20 minutes to put her
clothes on, 5 minutes to get in or out of a car and unable to do basic
housework, she answered “but it changed – I was able to vacuum and go
dancing”.  Her answer in this regard was simply not credible.

[35]        
She also agreed telling another physician, Dr. Winston, in 2008 that her
lower back pain started eight years earlier and that she has had no
improvement.

Robert Fredette

[36]        
Mr. Fredette is the plaintiff’s younger brother.  He was a passenger in
the plaintiff’s vehicle at the time of the accident.  He was not injured.  He
confirmed the plaintiff’s version of the event.

[37]        
Mr. Fredette also confirmed that the plaintiff left her birthday party
that evening after complaining of pain in her neck and shoulders.

[38]        
Mr. Fredette testified that the plaintiff was unable to participate in a
family celebration at the plaintiff’s home after the accident due to pain and that
she kept to herself.

Carmen Mitchell

[39]        
Ms. Mitchell is a friend of the Plaintiff.  They met in the Spring of
2008.

[40]        
She described how they went dancing together once a week prior to the accident. 
The plaintiff was very social and danced for hours, unimpeded by health issues.

[41]        
Ms. Mitchell testified that, prior to the accident, she and the
plaintiff performed karaoke approximately twice a month, which involved the
plaintiff being up on a stage singing and dancing.  She and the plaintiff also
spent evenings together watching television, shopping and going on short
walks.  Occasionally, the plaintiff slept over at Ms. Mitchell’s apartment.  She
testified that there was never an issue with the plaintiff’s sleep or health
prior to the accident.

[42]        
Ms. Mitchell confirmed that the plaintiff left her birthday party early
on April 17, 2010 due to pain.

[43]        
After the accident, the plaintiff stopped going to Ms. Mitchell’s
apartment as frequently.  When she did come over and stayed overnight, the
plaintiff was often awake during the night, crying and complaining of pain in
her neck and shoulders.

[44]        
Ms. Mitchell has observed a big difference in the plaintiff before and
after the accident.  The plaintiff now stays at home and they do not do the
things they used to do because the plaintiff says she is in too much pain. 
They have not gone dancing or to karaoke since the accident.

[45]        
On cross-examination Ms. Mitchell confirmed that the plaintiff did not
appear to have any problems with her health or other physical limitations prior
to the accident.  Although Ms. Mitchell was aware of the plaintiff’s work-related
back injury and her bowel surgery, the plaintiff had not discussed her family
and other health issues with her.

Murray Thiele

[46]        
Mr. Thiele met the plaintiff in July 2011.  They have been living
together since October 2011.

[47]        
He said the plaintiff spends most of the weekends lying on the couch at
home.  He does the housework and most of the cooking.  Their social life is
virtually non-existent due to the plaintiff’s neck and shoulder pain.

[48]        
They share the same bed.  He said the plaintiff’s neck “cracks at
night”.  He is often awakened in the middle of the night by the plaintiff who
is already awake due to pain.

[49]        
He was not asked whether he and the plaintiff are able to have sex.

[50]        
He described the plaintiff as a “moderate” drinker.  She consumes a
couple of glasses of wine on the weekends.

Janet Bremner

[51]        
Ms. Bremner is the plaintiff’s aunt.

[52]        
Prior to the accident, Ms. Bremner and the plaintiff went dancing and
walking together.  The plaintiff would visit Ms. Bremner at her home and would
stay for several hours.  She described the plaintiff as “upbeat, bouncy and
outgoing”.

[53]        
Ms. Bremner testified that the plaintiff has not been the same person
since the accident.  She is no longer upbeat, bouncy and outgoing.  She and the
plaintiff no longer go dancing.  They tried walking but the plaintiff had to
turn around after 1.5 blocks.  The plaintiff rarely visits her home anymore
because the pain makes her uncomfortable.  Ms. Bremner testified that she can
see the pain in the plaintiff’s face.

Dr. Nancy Reeves

[54]        
Dr. Reeves is a psychologist who specializes in the areas of trauma,
grief and loss.  She provided opinion evidence regarding the consequences of
the accident on the plaintiff.  Her expert report was admitted without debate
or qualification.

[55]        
The plaintiff attended six one-hour psychotherapy sessions with Dr.
Reeves, once per week, between October 2 and November 13, 2012.  During the
October 10, 2012 session, the plaintiff told that her pain level was “6 out of
10” and “gets to 10 every day in the afternoon”.

[56]        
The plaintiff’s anxiety condition improved dramatically during their
sessions.  This assessment was not based solely upon the plaintiff’s
self-reporting.  According to Dr. Reeves, anxiety in a person is very visible
and she could see improvement in the plaintiff’s anxiety level.

[57]        
The plaintiff told Dr. Reeves during her last session that her poor
sleep had improved moderately.

[58]        
Dr. Reeves testified that, during their early sessions, the plaintiff’s
anxiety level increased when she talked about the accident.

[59]        
Dr. Reeves’ treatment focused on managing the plaintiff’s pain and
anxiety condition.  She assumed the plaintiff was unable to work and was on
disability prior to the accident due to a chronic bowel problem.  Dr. Reeves
was not aware of the plaintiff’s pre-accident history of general anxiety
disorder, panic disorder, depression, degenerative disc disease or scoliosis.  The
plaintiff had told her that the cause of her pain was the accident and, because
the plaintiff’s condition improved quickly during their sessions, Dr. Reeves
did not feel the need to delve into the plaintiff’s background.

[60]        
As a result of Dr. Reeves’ treatment, the psychological effects of the accident
on the plaintiff were resolved.

[61]        
Dr. Reeves was of the opinion that the plaintiff may benefit from a
further six to eight sessions with her to ensure that she does not lose the
pain-reduction strategies she has learned to date.  Moreover, it was her
opinion that the plaintiff will need these further sessions if she either
experiences another significant anxiety stressor or does not improve
physically.

[62]        
It was Dr. Reeves’ opinion that the plaintiff has not fabricated her
psychological symptoms.

[63]        
Dr. Reeves charged the plaintiff $870.00 for her services.

[64]        
Dr. Reeves was a delightful, knowledgeable, candid and helpful expert
witness.  I have no difficulty accepting her opinions and recommendations,
which did not change when she was made aware of the plaintiff’s prior family history,
medical issues and drug use.

Dr. Walter Salmaniw

[65]        
Dr. Salmaniw has been the plaintiff’s family doctor for many years.  He
described the plaintiff as a patient with a complex medical history.  He agreed
that, at the time of the accident, the plaintiff was suffering from
debilitating and chronic medical issues, including chronic low back pain.  He
noted, for example, she has suffered from:

a)     generalized
anxiety and panic disorder since 1987;

b)     depression
since 1988;

c)     lumbar
degenerative disc disease and chronic back pain since 1999;

d)     substance
abuse from 2006 to early 2009;

e)     a
mid/lower back strain on the left side in May 2008;

f)       chronic
diarrhea since October 2008; and

g)    
tension headaches in April 2009.

[66]        
Dr. Salmaniw was qualified without objection as an expert in family
medicine.  His expert reports are dated July 25 and July 31, 2012.  His
opinions have not changed since then.

[67]        
It was Dr. Salmaniw who recommended the plaintiff have physiotherapy treatment
for her accident-related pain.  Initially the plaintiff saw Rod Mitchell.  She
did not appear to be improving after almost one year of treatment with Mr.
Mitchell so Dr. Salmaniw recommended that she see Mr. Harvie whose
physiotherapy regime, while unorthodox, had met with 100% success in the patients
Dr. Salmaniw had previously referred to him.  Unfortunately for the plaintiff,
Mr. Harvie’s treatments did not improve her condition.  In early 2012, Dr.
Salmaniw referred the plaintiff to the Victoria General Hospital’s Chronic Pain
Clinic, the waitlist for which is lengthy.  She was not able to attend that
clinic until shortly before trial.

[68]        
In Dr. Salmaniw’s opinion, the plaintiff is suffering from chronic pain
to her neck, shoulder and upper back as a result of the accident.  He estimates
that, at best, she will have an overall future improvement of 25% in her pain
and functioning.  He believes that breast reduction surgery may help her
chronic back pain.  It is also his opinion that the plaintiff will continue to
require physiotherapy and pain medication for her accident related injuries and
other medical issues.

[69]        
Dr. Salmaniw agreed during cross-examination that, prior to the accident,
the plaintiff’s medical condition was “severe”, she was disabled by pain and
was suffering from chronic depression, anxiety and panic attacks.

Dr. Lynne MacKean

[70]        
Dr. MacKean is a physiatrist, specializing in physical medicine and
rehabilitation.  She began her medical career in1982 as a physiotherapist.  She
received her Doctor of Medicine degree in 1986 and specialized as a physiatrist
in 1994.  She was qualified without debate as an expert in the area of physical
medicine and rehabilitation.

[71]        
Dr. MacKean examined the plaintiff on March 5, 2012 and again on
December 5, 2012.  She agreed with Dr. Vondette’s opinion that, because the
plaintiff’s neck was turned to the left at the time of the accident, she was
more vulnerable to neck injury.

[72]        
She diagnosed the plaintiff with a grade 2 moderate whiplash injury to
the plaintiff’s neck and left upper back which, in her opinion, was probably
caused by the accident.  She also diagnosed cervicogenic headaches caused by
the accident.  In her opinion, the plaintiff’s lower back pain was not caused
by the accident but rather was a pre-existing condition.  She disagreed with
Dr. Vondette’s opinion that the plaintiff’s pre-existing medical conditions are
the likely cause of most, if not all, of her current impairments, symptoms and
disabilities.

[73]        
Dr. MacKean testified that the plaintiff did not complain of headaches
during her March 2012 consultation.

[74]        
Dr. MacKean was unable to provide a positive prognosis for the
plaintiff’s recovery.  In her opinion, as the plaintiff’s neck and back
injuries were still chronic after two years, they are unlikely to resolve. 
However, in her opinion, active rehabilitation and exercise will likely benefit
the plaintiff.  She opined that, once a patient knows and is comfortable with a
set of exercises, the patient can reasonably be expected to do them on her own.

[75]        
On cross-examination, Dr. MacKean agreed that knowledge of the
plaintiff’s pre-existing mid to lower back injuries and other medical issues
would have been relevant to her assessment of the plaintiff.  Dr. MacKean
testified that knowledge of the plaintiff’s medical history prior to the accident
could have changed her opinion regarding the plaintiff’s headaches being caused
by the accident.

[76]        
Dr. MacKean stated that she does not believe in the cranial sacral
therapy used by Mr. Harvie because it is not a science-based discipline
supported by medical evidence.

[77]        
Dr. MacKean was an impressive witness whose opinions were expressed in a
straightforward, helpful and objective fashion.  I have no hesitation accepting
them.

Jeffrey Harvie

[78]        
Mr. Harvie is a registered physiotherapist.  He obtained his license in
1993.  He was tendered as an expert in that field.  No objections were raised.

[79]        
The plaintiff attended 82 physiotherapy sessions with Mr. Harvie between
August 2011 and August 2012.  Mr. Harvie used a technique called cranial sacral
therapy in these sessions.

[80]        
Mr. Harvie gave detailed evidence regarding what he described as his
objective findings of the plaintiff’s condition, based largely upon a “passive”
hands examination approach, including:

a)     the
plaintiff’s neck range of motion (ROM) was and is more restricted when she is
standing than when she is sitting, which is extremely abnormal;

b)     her neck
flexion/extension was substantially restricted;

c)     her
shoulder ROM is almost full, however it deviated from normal movement in order to
achieve it;

d)     her
breathing increased tension on the left side of her neck and upper scapular
tissues; and

e)    
her left C5-6 facet joint was limiting her movement.

[81]        
Mr. Harvie testified that the plaintiff’s physiotherapy treatment did
not go as he had expected.  It became clear to him in January 2012 that “not
only had the head, neck and shoulder tissues suffered trauma, but that tension
in these tissues were being influenced by problems elsewhere in the body,
particularly in the thorax and the abdomen”.  This led Mr. Harvie to conduct:

..thorough assessments of Ms.
Thibeault’s thoracic, abdominal, and pelvic regions, all of which demonstrated
marked restrictions in the mobility of the visceral organs, connective and
other soft tissues, and articular structures.  It was relatively easy to
demonstrate that these restrictions were influencing the tissues in the head
and neck.

[82]        
Mr. Harvie opined that the several traumas and resulting body system
restrictions the plaintiff has experienced in her life have had a cumulative
effect such that even a relatively small force that would not affect most
people had substantial consequences for her.

[83]        
In Mr. Harvie’s opinion, the issue of whether the plaintiff should
engage in active exercise to address her symptoms is extremely complex.  There
are delicate, sensitive tissues within the plaintiff’s body that are not moving
as they should.  Too much or excessive exercise may worsen the plaintiff’s
tissue mobility and impart stress.  He believes there is a realistic risk that exercise
will exacerbate the plaintiff’s pain.  However, gentle and slowly progressive
mat-based exercises will be beneficial for her.  Mr. Harvie was unable to opine
further on the best course of future treatment for the plaintiff.

[84]        
On cross-examination, Mr. Harvie agreed that cranial sacral therapy was
the subject of controversy in the medical profession many years ago but stated
it is now a widely accepted therapy in physiotherapy was well as in dentistry
and osteopathy.

[85]        
Mr. Harvie agreed on cross-examination that he cannot identify whether
and to what extent the plaintiff’s complaints were caused by the accident but
confirmed his opinion that, with the plaintiff, her various traumas were likely
cumulative.

[86]        
Mr. Harvie confirmed that the plaintiff owes him $10,511.21 for his
physiotherapy services.

Robert Carson

[87]        
Mr. Carson is a well known economist who is eminently qualified to and
did provide expert evidence regarding the present value of any cost of future
care that might be awarded to the plaintiff.  He presented an expert report
which included tables of those values.

The Defendant

[88]        
The defendant gave evidence about his version of the accident.  He was driving
behind the plaintiff’s vehicle as they both merged onto MacKenzie Avenue.  Both
vehicles came to a stop.  As the plaintiff’s vehicle began to move forward, so
did he.  As he was moving forward, he looked over his left shoulder for traffic
approaching along MacKenzie Avenue.  Unbeknownst to him, the plaintiff’s
vehicle had stopped ahead of him and the collision occurred.  He estimated that
the initial distance between the two vehicles was one car length and that he
was travelling at 10 to 15 kph at the time of impact.

[89]        
The defendant was not injured.  It seemed to him that the plaintiff,
too, was uninjured.  After the collision, he observed her get out of her car, get
back into her car, drive to a nearby bus stop, get out of her car again to
exchange information with him and get back into her car, all without any
apparent difficulty.

[90]        
Although the damage to the defendant’s 1991 Honda vehicle was relatively
minor, his vehicle was written off by ICBC because the estimated repair cost
exceeded its value.

Dr. Vondette

[91]        
Dr. Vondette is a physiatrist, specialising in physical medicine and
rehabilitation.  He was retained by the defendant to conduct an IME of the
plaintiff.  He examined the plaintiff on October 22, 2012.  He provided to defence
counsel a medical/legal report dated December 10, 2012 (“Vondette Report”).

[92]        
The plaintiff objected to the admissibility of the Vondette Report on
the following grounds:

a)     it does
not provide an opinion on the issues in this proceeding and is therefore
irrelevant;

b)     the
opinions expressed are outside of Dr. Vondette’s area of expertise;

c)     it
contains comments and opinions that are irrelevant to this proceeding;

d)     it is not
an impartial analysis but rather advocacy in the guise of an expert report;

e)     it
contains comments on the plaintiff’s credibility;

f)       it
is prolix and inordinately repetitive; and

g)    
is typical of reports Dr. Vondette has been criticized for in other
proceedings.

[93]        
The Vondette Report is 101 pages in length.  The opinion section is 40
single-spaced pages.  In addition, there are five appendices:

a)     Appendix
A: “History as obtained from Deborah Thibeault on October 22, 2012 and a
Summary of the Findings on the Physical Examination of Ms. Thibeault on October
22, 2012” (22 pages, single spaced);

b)     Appendix
B: “Documents Reviewed Concerning Deborah Thibeault” (89 documents listed
in five single-spaced pages)

c)     Appendix
C: “Facts and Factual Assumptions Relied upon in Forming My Opinion
Concerning Ms. Deborah Thibeault” (118 single-spaced paragraphs over 24 pages);

d)     Appendix
D: “Additional Information Concerning Clinical Concepts Discussed Within
the Medicolegal [sic] Report (5 single-spaced pages); and

e)    
Appendix E: “Qualifications” (one single spaced page).

[94]        
The “Opinion” section of the Vondette Report is comprises 80 sections
and subsections.  The following are some typical examples:

Opinion concerning Ms. Thibeault’s current :symptoms” in
respect to neck pain and stiffness

Based on the facts and factual assumptions set out in
Schedule “C” (page 17), it is my opinion that Ms. Thibeault currently reports
experiencing daily neck pain, involving only the left side, primarily over the
lower left neck, but also at the cervico-occipital junction (i.e., where the
neck meets the skull).  The neck pain was reported to be aggravated by lifting
(although she said she didn’t do this “anymore”) and by walking.  The pain was
said to last for “hours”.  She would obtain relief from taking Advil gel capsules
(i.e., ibuprofen, – an anti-inflammatory).

Opinion concerning Ms. Thibeault’s current “disabilities”
in respect to home and yard maintenance

Based on the facts and factual assumptions set out in
Schedule “C” (page 22), it is my opinion, in the context that she currently has
no garden that Ms. Thibeault reports that she leaves the lawn mowing to her
boyfriend, in which respect it is my opinion generally that most middle aged
females would consider lawn mowing to be a “man’s job” anyway.

Opinion concerning Ms. Thibeault’s current “disabilities”
in respect to recreational activities

Based on the facts and factual assumptions set out in
Schedule “C” (page 23), it is my opinion that whereas pre-MVA Ms. Thibeault
reported that she did “a lot” of “dancing” that she now advises that she hasn’t
“been able” to do this since the MVA.  In this respect, it is my opinion that
particularly from May 2008 through April 2010 Ms. Thibeault most probably
wasn’t doing that much dancing, prior to the MVA, given her report at that time
of the severity of many of the difficulties she was experiencing at that time,
including back pain, such that it would take her fifteen minutes to walk a
block, etc.

Opinion concerning Ms. Thibeault’s current “disabilities”
in respect to social activities

Based on the facts and factual
assumptions set out in Schedule “C” (page 24), it is my opinion that Ms.
Thibeault’s unfortunate track record in respect to her previous long-term
relationships makes it exceedingly difficult to conclude that her boyfriend of
the past 1.5 years (i.e. “Murray”) necessarily would have more assets than
liabilities, in respect to making any predictions about the long range
prospects for this relationship.  In my opinion, his apparent willingness to
carry out many IADL tasks on her behalf, which could be construed as being an
indicator of helpfulness, could just as easily be viewed as being a behaviour
which consciously or subconsciously would help to reinforce Ms. Thibeault’s
perception of herself as being “disabled”.

[95]        
Counsel provided detailed written submissions on the issue of the Vondette
Report’s admissibility.  I agree generally with the submissions of plaintiff’s
counsel.  Dr. Vondette’s report is prolix in the extreme.  Dr. Vondette’s
review of the plaintiff’s background was beyond thorough and comprehensive – it
reported the minutia of the plaintiff’s social, family, psychological and
medical history.  He opines on matters that have no relevance to the
plaintiff’s claim in this proceeding: He overreaches into the areas reserved
for the trier of fact.  He makes remarks that go solely to the plaintiff’s
credibility.  His report in many places is argument in the guise of opinion.  Much
of the report purports to be opinion when what is written is not an opinion at
all but rather a regurgitation of the plaintiff’s complaints.

[96]        
The only portion of the Vondette Report from which I was able to discern
any useful opinion is under the section “Opinion concerning the April 17, 2010
MVA” and its “Severity” on page 13 where Dr. Vondette states:

….It is my opinion that because
she had her neck rotated at the time of impact, that she would have been more
susceptible to sustaining a more significant injury to her neck, but probably
not her back, although the antecedent history of scoliosis and chronic back
pain almost certainly also would have increased the likelihood of sustaining a
somewhat more significant injury than would have been the case otherwise.

[97]        
After hearing counsel’s submissions, I concluded that Dr. Vondette was
probably an expert whose opinions, properly articulated, could be of benefit to
the Court.  Although I found the vast majority of the Vondette Report to be
inadmissible, I decided that it was in the interest of justice to grant leave allowing
Dr. Vondette, with counsel’s assistance, to produce a summary of those portions
of the Vondette Report that are properly admissible.

[98]        
Dr. Vondette did so.  His summary (“Summary”) is two pages in length and
captures succinctly and helpfully the opinions he was attempting to express in
his report.  The Summary, together with counsel’s letter of instruction and appendices
“A” and “E” from the Vondette Report were collectively marked as Exhibit 7.

[99]        
Unfortunately, Dr. Vondette’s oral testimony was not as helpful as was
the Summary.  He returned to the prolix method of communicating that he
suffered from when writing his report.  He sought to justify this communication
method on the basis that “I am a competent and thorough physician” and that any
review of the plaintiff’s circumstances that was less than comprehensive and
itemized is “rubbish”.

[100]     Dr.
Vondette pontificated throughout his testimony regarding the virtues of his
specialty and his experience within it.  In addition to the field of physiatry,
he apparently views himself as having bountiful knowledge in other specialties
in which he has no formal training, including psychiatry, psychology
gynecology, physiotherapy, family medicine, social work and occupational
therapy.  He testified that his expertise is such that he tells
physiotherapists “exactly what I want done”.

[101]     Dr.
Vondette’s physical examination of the plaintiff lasted approximately 30
minutes.  He was adamant that his examination was gentle and that he did not
hurt her.  He also said he spent approximately two hours with the plaintiff
discussing her medical history.

[102]     It was
clear to me that Dr. Vondette formed a negative and unflattering subjective opinion
of the plaintiff based on her personal and medical history as well as her
history of substance abuse.  His negative views of her were heavily influenced
by Dr. Salmaniw’ August 2009 letter and December 2009 Medical Report in support
of the plaintiff’s disability benefits application, together with his
understanding that the plaintiff’s vehicle was not damaged during the accident,
that no emergency personnel were dispatched, that the plaintiff was able to
drive away from the accident and that the walk-in clinic physician diagnosed a
soft tissue injury and did not see fit to order an X-ray.  He formed the
unyielding conclusion that the plaintiff’s accident-related injuries could not
have been anything other than minor and that any suggestion to the contrary was
not credible.  In Dr. Vondette’s opinion the plaintiff suffered, at most, a
mild to moderate whiplash injury that resolved quickly.  In his view, given
“the type of person we’re dealing with” and her “track record”, the plaintiff
was a member of a “subset of individuals who want to have symptoms for a longer
period of time”.

[103]     Dr.
Vondette was argumentative and condescending throughout his cross-examination. 
Virtually all of his answers were lengthy monologues.  He was critical of Dr.
MacKean’s March 5, 2012 report because it was only two pages in length.  He was
critical of her December 5, 2012 report because, in forming her opinion, she
reviewed and relied upon only her March 5, 2012 report and Dr. Salmaniw’s two
July 2012 reports.

[104]     Dr.
Vondette refused to agree that Dr. Salmaniw, as the plaintiff’s family doctor
for more than 20 years, knew more about the plaintiff and what was best
medically for her than he did after a three hour consultation.  In Dr.
Vondette’s words: “I think I can reasonably size up what’s going on here”.

[105]     Finally,
Dr. Vondette described Mr. Harvie’s physiotherapy methods as “strange off-shore
theories followed by a bunch of over-excited disciples”.  In his view, the
plaintiff needed to be taken out of the hands of Mr. Harvie and sent to a
physiotherapist who is more orthodox and who performs scientifically validated
forms of treatment.

[106]     Needless
to say, the approach to the role of an expert witness in the context of court
proceedings that Dr. Vondette followed is unhelpful, counterproductive and is
to be discouraged.  It is not within the purview of an expert witness to determine
facts or issues of credibility and reliability: Brough v. Richmond, 2003
BCSC 512 at paras. 14 – 17.  Unfortunately, Dr. Vondette allowed his subjective
views of the plaintiff formed from his review of her medical and personal
history to overwhelm whatever impartiality he may initially have had.  I have
been unable to take meaningful guidance from his opinions and testimony.  To
the extent that his opinions conflict with those of Drs. Salmaniw, MacKean and
Reeves, I accept the opinions of the latter experts and reject those of Dr.
Vondette.

Analysis

General Damages

[107]     Defendant’s
counsel argues the collision impact was so negligible that the plaintiff could
not have suffered any significant injury.  Alternatively, he argues that the
plaintiff has either exaggerated her pain or it is attributable to her
pre-existing condition.

[108]    
This is the classic position taken by defendants in low-velocity impact
collision cases.  They assert that, given the negligible force imparted during
the collision, the plaintiff could not possibly have been injured.  As I stated
recently in Christoffersen v. Howarth, 2013 BCSC 144 at para. 54, this
approach was commented upon almost twenty years ago by Mr. Justice Thackray (as
he then was) in Gordon v. Palmer, (1993), 78 B.C.L.R. (2d) 236
(S.C.) at 237 (excerpted in full in 1993 CanLII 1318):

I do not subscribe to the view that if there is no motor
vehicle damage then there is no injury.  This is a philosophy that the
Insurance Corporation of British Columbia may follow, but it has no application
in court.  It is not a legal principle of which I am aware and I have never
heard it endorsed as a medical principle.

Significant injuries can be caused by the most casual of
slips and falls.  Conversely, accidents causing extensive property damage may
leave those involved unscathed.  The presence and extent of injuries are to be
determined on the basis of evidence given in court.  Objectivity is thus
preserved and the public does not have to concern itself with extraneous
philosophies that some would impose on the judicial process.

In the case at bar the limited
amount of motor vehicle damage is not, in my opinion, the yardstick by which to
measure the extent of the injuries suffered by the plaintiff.  No evidence was
called to substantiate the theory of ‘no physical damage: no injury’.  The
plaintiff alleged serious back injuries and resultant damages.  The extent will
be decided on the evidence.

[109]    
More recently, in Hoy v. Harvey, 2012 BCSC 1076, Madam
Justice Fitzpatrick wrote:

[44] The defence submits that Mr. Hoy could not have
sustained his claimed injuries from such a minor impact. The defendants rely on
the comments made by the Court in Sinclair v. Norman, 1996 CarswellBC
1761 (Prov. Ct.) where the Court dismissed the claim where there had only been
a “light touch” or “nudge”:

[16]     
Common sense will tell me that surely there has to be a threshold of impact for
any soft tissue injury. Given the evidence in this case of a light touch of the
independent witness or imperceptible nudge of the Defendant. I cannot on
balance conclude that the Claimant has the causation established necessary to
find in her favour.

[45]       
Evidence of the damage caused and the impact generally can be one of many
factors considered by the Court in the determination of what injuries, if any,
were caused by the accident. In Miller v. Darwel, 2005 BCSC 759 (CanLII), 2005 BCSC 759, the
Court stated:

[9]     
  On appeal, the claimant argues that the trial judge erred in
considering the force of the impact of the collision on the issue of liability.
In support of this position the claimant relies upon the case of Gordon v.
Palmer 1993 CanLII 1318 (BC SC),
(1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray J. (as he then was)
said at para. 4:

I do not subscribe to the view that
if there is no motor vehicle damage then there is no injury. This is a
philosophy that the Insurance Corporation of British Columbia may follow, but
it has not [sic] application in court. It is not a legal principle of which I
am aware and I have never heard it endorsed as a medical principle.

[10]      As other judges who have
considered this passage have already said, these words should not be taken to mean
that the extent of damage in a collision is irrelevant to causation. It is some
evidence of impact, which is not logically unrelated to injury.

[11]      I agree with Taylor, J.
in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400
(B.C.S.C.), when he said at para. 7:

Such evidence is therefore relevant with respect to what
injuries resulted from the impact and to the issue of the credibility of the
plaintiff who asserts such injuries, by reason of the fact that such injuries
often do not have objective symptoms. Such evidence may, depending upon the
extent of the property damage, either contradict or corroborate evidence of
personal injury.

[110]     I echo
these sentiments here, as I did in Christoffersen.  Causation and the
extent of any injury are to be decided on the whole of the evidence before me.

[111]     I accept
that the collision was relatively minor.  I accept the defendant’s evidence
that his vehicle collided with the plaintiff’s stationary vehicle at a speed of
approximately 10-15 kph.  However, low impact collisions can cause injury: Lubick v.
Mei, 2008 BCSC 555 at paras. 5-6.  I accept the plaintiff’s evidence
that she was injured as a result of the accident.  Causation has been
established by the plaintiff.

[112]     Based upon
the evidence before me, I find the plaintiff suffered a moderate whiplash
injury to her the left side of her neck and shoulder as well as an exacerbation
of her pre-existing injury to her mid and lower back.

[113]     However, I
do not accept that the plaintiff was injured to the extent she has suggested. 
I agree with counsel for the defendant that, in circumstances such as this
where the plaintiff’s complaints are not supported by any objective evidence of
persistent pain and are based entirely upon her self-reporting , the Court must
exercise caution and examine all the evidence carefully so as to arrive at fair
and reasonable compensation: Loik v. Hannah, 2009 BCSC 1196 at para. 34.

[114]    
I find that the plaintiff has exaggerated the pain she suffered and
continues to suffer as a result of the injuries she sustained during the accident. 
The plaintiff’s evidence was rife with inaccuracies and embellishment.  For
example:

a)   
she initially
denied that the back injury she sustained in the 1999 accident was serious, but
when confronted with her examination for discovery transcript, she conceded
that it was a serious injury;

b)   
her evidence in
chief was that, prior to the accident, she had sharp lower back pain once every
couple of weeks.  Yet, she advised Dr. Winston in May 2008 that her low back
pain started eight years earlier following a motor vehicle accident and that
“she has had no improvement in the chronic bilateral low back pain”.  She told
Dr. Salmaniw in 2009 that she had “chronic severe lower back pain since 1999”.

c)    
the plaintiff
denied advising Dr. MacKean that she did not have chronic neck or back pain
problems following the 1999 accident;

d)   
she claimed she
did not have headaches prior to the accident, however her medical records
disclosed previous issues associated with headaches, albeit following specific
events.  She says she now suffers from severe headaches twice per week but did
not complain of any headaches to Dr. MacKean in March 2012;

e)     she estimated that the collision
impact speed was 30-40 kph yet there was no damage whatsoever to her vehicle. 
Plaintiff’s counsel read in excerpts from the examination for discovery of the
defendant.  One such excerpt was as follows:

50        Q.  So do you know
how fast you were going at the time the accident took place?

A.  I would assume maybe about 10 kilometres an hour.

f)     
her evidence was
that, since the accident, she has had “no sex” – I do not believe this
evidence;

g)   
she testified
that, since the accident, she doesn’t sleep at all at night – later she said
that sometimes she gets a couple hours sleep.  Yet she admitted that her
pre-existing bowel problem keeps her up at night.  She also told Dr. Reeves and
Jeff Harvie that her sleep has improved.

h)   
she told Dr.
Reeves that her pain every afternoon was 10 out of 10, in other words the worst
pain imaginable. 

i)      
eight months
before the accident she claimed through Dr. Salmaniw, in support of disability
benefits, to have continuous restrictions with day to day activities, that it
took her 10 to 15 minutes to walk a block, that she was unable to do laundry
and basic housework or shop for groceries, that it took her 30 minutes to
shower, 20 minutes to put her clothes on and five minutes to get in or out of a
vehicle, due to pain, yet she was able to dance for four or five hours and sing
karaoke on stage without difficulty;

j)       a mere four months before the accident
she claimed in support of disability benefits to be disabled to the point that
she could not work, that no improvement was expected and that her condition
would gradually worsen.  Yet she said in the intervening four months it got
better and that she was able to vacuum and go dancing.

[115]     At the
time of the accident, the plaintiff was not healthy and was in poor physical
condition.  She left the work force in 2008 due severe lower back pain and
abdominal difficulties.  Since then, she has been on disability.  I accept that
her prognosis for a recovery of her health is poor.

[116]     Given the
plaintiff’s previous medical history, her attempt to attribute virtually all of
her post-accident woes to the accident defies credulity.

[117]     However, the
lay witnesses, whom I find were credible, contradicted virtually everything
contained in Dr. Salmaniw’s August 2009 letter and December 2009 Medical Report. 
If I accept the veracity of the statements made in those documents, I cannot
accept that the plaintiff’s current subjective complaints are attributable to
the accident.  If I accept that the plaintiff’s current subjective complaints
are attributable to the accident, I cannot accept the veracity of the documents
prepared in support of her disability claim.

[118]     The
plaintiff has burden to prove, on the balance of probabilities, the extent that
her current injuries were caused by the accident.  In my view, she has failed
to adequately explain the contradictions and inconsistencies in the evidence. 
It is a fundamental principle of tort law that the defendant need not place the
plaintiff in a better position than she was in prior to the accident: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 32.

[119]     The
plaintiff argues that she is entitled to non-pecuniary damages in the range of
$85,000 to $100,000, relying on the following decisions: Poirier v. Aubrey,
2010 BCCA 266 ($100,000); Hood v. Wrigley, 2013 BCSC 231
($60,000); Perry v. Perry, 2011 BCSC 432 ($85,000); Yeung
v. Dowbiggin, 2012 BCSC 206 ($85,000); Kasidoulis v. Russo, 2010
BCSC 978 ($90,000); Pelkinen v. Unrau, 2008 BCSC 375 ($81,000);Thiessen
v. Bissenden, 2007 BCSC 1809 ($95,000) and Foran v. Nguyen, 2006
BCSC 605 ($90,000).

[120]     The
defendant relies on the following decisions: Carter v. Zhan,
2012 BCSC 595 ($35,000); Smith v. Wirachowsky, 2009 BCSC 1434
($30,000); Loik v. Hannah, supra ($25,000)

[121]     The
defendant also submits the plaintiff failed to mitigate her injuries sustained
in the accident.  The basis for this submission is her “history of
non-compliance with her treatment and therapies” and the ineffectiveness of the
treatment she obtained from Mr. Harvie.

[122]    
The test for mitigation was set out in Chiu v. Chiu, 2002 BCCA
618 at para. 57:

The onus is on
the defendant to prove that the plaintiff could have avoided all or a portion
of his loss.  In a personal injury case in which the plaintiff has not
pursued a course of medical treatment recommended to him by doctors, the
defendant must prove two things: (1) that the plaintiff acted unreasonably in
eschewing the recommended treatment, and (2) the extent, if any, to which the
plaintiff’s damages would have been reduced had he acted reasonably….

[123]     I do not
accept the defendant’s argument.  There is nothing in the evidence to suggest
the plaintiff failed to act reasonably in pursuing recommended treatment.

[124]     Having
considered these decisions and the injuries suffered by the plaintiff which, while
perhaps not fully resolved, I find have been exaggerated in terms of their
intensity and duration, I find that an award of $35,000 for non-pecuniary
damages is appropriate.

Cost of Future Care

[125]     Future
care costs must be justified as being both medically necessary and likely to be
incurred by the plaintiff in the future: Izony v. Weidlich, 2006 BCSC
1315, at para. 74.

[126]     Dr. Reeves
recommends the plaintiff attend a further six to eight one-hour psychotherapy
sessions to ensure that she does not lose the psychological self-care
strategies she has learned to date.  Each of those sessions will cost $150.00. 
I am satisfied that the plaintiff will likely require two psychotherapy
sessions per year for the next three years.  A discount rate of 3.5% is
applicable to cost of future care.  According to the cost of future care
multipliers, present value calculations and tables provided by Robert Carson,
the net present value of $300 per year for three years, adjusted for the
plaintiff’s probability of survival is $852.00.

[127]     Regarding
future physiotherapy, Mr. Harvie’s expects two treatments per month for the
next year will result in gradual improvement.  After one year, he expects
improvement will be sporadic and recommends physiotherapy on an “episodic
basis”.  I am satisfied that the plaintiff will require physiotherapy
treatments for the next year but not thereafter.  I find that 24 one-hour
sessions at $80 per session for a total of $1,920.00 is reasonable.

Special Damages

[128]     I find
that, in all of the circumstances, the steps taken by the plaintiff to
rehabilitate herself and mitigate her loss, all of which were on the
recommendation of Dr. Salmaniw, were reasonable.

[129]     The
plaintiff attended regular physiotherapy sessions because of the accident.  She
missed some of those sessions due to health issues.  The question arises as to
whether the defendant must also compensate the plaintiff for the cancellation
charges.

[130]     In Mackenzie
v. Rogalasky, 2011 BCSC 54 at para. 337, the defence was not required to
reimburse the plaintiff for cancelled appointments.  The court found the
plaintiff had an obligation to keep track of his appointments and either attend
them or cancel them in an appropriate amount of time so as not to incur
cancellation fees.  Similarly, the court declined to award special costs for
cancellation fees in Tompkins v. Bruce, 2012 BCSC 266 at para. 80.

[131]     However, I
find there is a reasonable explanation for the cancellation fees in this case.  Ms.
Thibeault was suffering from other health problems that were sudden and unpredictable.
I find she was unable to cancel her appointments in time to avoid the
cancellation charges.  The thin skull rule provides that defendants must take
their victims as they find them: Blackwater v. Plint, 2005 SCC 58 at
para. 78 – 79.  The cancellation fees were unavoidably incurred and the
plaintiff is entitled to compensation for those costs.

[132]     The
plaintiff has satisfied me that she has incurred and is entitled to recovery of
special damages in the following amounts:

Conclusion

[133]     The
plaintiff is entitled to judgment in the following amounts:

[134]    
I agree with Mr. Walton that the plaintiff is entitled to interest
pursuant to the Court Order Interest Act (COIA) on the special damages I
have awarded, even though the charges for physiotherapy have not yet been
paid.  The relevant section of the COIA provides:

(1) Subject to section 2, a court must add to a
pecuniary judgment an amount of interest calculated on the amount ordered to be
paid at a rate the court considers appropriate in the circumstances from the
date on which the cause of action arose to the date of the order.

(2) Despite subsection (1), if
the order consists in whole or part of special damages, the interest on those
damages must be calculated from the end of each 6 month period in which
the special damages were incurred to the date of the order on the
total of the special damages incurred

(a) in the 6 month period immediately following the date
on which the cause of action arose, and

(b) in any subsequent 6 month period.

[emphasis added]

[135]     Black’s
Law Dictionary, 9th ed. defines “incur” as “[to] suffer or bring on oneself
(a liability or expense)”.  The plaintiff became liable for the cost of her
physiotherapy payments when she either attended or missed her appointments.

[136]     The
plaintiff is entitled to her costs at scale B, subject to any submissions the
parties wish to make.  Regardless, there will be no costs awarded to the
defendant in respect of Dr. Vondette’s report dated December 10, 2012.

“Weatherill J.”