IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20131101

Docket: M112032

Registry:
Vancouver

Between:

Courtenay Smith

Plaintiff

And

Rhea Kelsie Both

Defendant

Before:
The Honourable Madam Justice Russell

Reasons for Judgment

Introduction

[1]            
This action arises from a motor vehicle accident (“the Accident”) that
occurred on July 11, 2009 in the Township of Langley, British Columbia.

[2]            
The defendant has admitted liability for the Accident, but the parties take
substantially different positions regarding the quantum of damages to be
awarded.

The Accident

[3]            
On July 11, 2009 at around 7:00 p.m. Courtenay Smith, the plaintiff, was
stopped at a red light at the intersection of 88 Avenue and 204 Street in
Langley. Ms. Smith was in the curb lane of 88 Avenue in the
westbound direction. The defendant, Ms. Rhea Both, was stopped directly
behind Ms. Smith.

[4]            
When the light turned green the westbound traffic began to move forward.
The car in front of Ms. Smith stopped before crossing the intersection because
a bus in the same lane had stopped to let off passengers on the other side of
the intersection. Ms. Smith stopped behind that vehicle. The curb lane
traffic could not proceed through the intersection while the bus was at its
stop.

[5]            
When the traffic began to move forward Ms. Both took her foot off
the brake and her car began to roll forward. She did not accelerate by pressing
on the gas pedal. She testified that when she realized the traffic was not
proceeding through the intersection she “slammed” her foot on the brake.
However, her vehicle was already so close to Ms. Smith’s that she hit the
back of Ms. Smith’s vehicle.

[6]            
Ms. Smith testified that her body moved forward and backward on
impact. Her vehicle moved forward but did not hit the car stopped in front of
her.

[7]            
Ms. Both testified that she felt a jolt as her vehicle tapped Ms. Smith’s.
Her seatbelt did not lock. Her airbags did not deploy.

[8]            
The plaintiff and the defendant stopped in a nearby parking lot and
exchanged information.

[9]            
No emergency vehicles attended at the Accident. There was no damage to
the defendant’s vehicle. The plaintiff’s vehicle had an imprint of the
defendant’s license plate bolt in the paint on the rear end. The plaintiff
conceded on cross-examination that the damage was so minimal that she did not
have her vehicle repaired.

The Plaintiff’s Case

The Plaintiff

[10]        
Ms. Smith was 21 years old at the time of the Accident and was 24
years old at the time of trial. She needs one more course to complete her high
school diploma.

[11]        
She testified that prior to the Accident she had no medical problems and
was happy and healthy. She described her physical activity level as “medium”. She
sometimes played softball in the park, went on walks, and went swimming, camping,
and out dancing with friends. She often spent social time with friends.

[12]        
Ms. Smith was involved in a car accident with her mother at the age
of 10, which resulted in injuries to her right shoulder and right knee. She
testified that those injuries healed within a year. She reported having some
anxiety about driving due to this accident, however, she took driving lessons
and obtained her driving license at the age of 18.

[13]        
 A few months before the Accident, the plaintiff saw her family doctor
regarding some digestive problems she was having. During the visit the doctor
recorded that she mentioned she was experiencing some neck pain. The plaintiff
stated in her testimony that the pain must have been temporary and she does not
remember discussing it with her doctor.

[14]        
The plaintiff’s family has a history of Marfan Syndrome, a connective
tissue disorder, however, an echo cardiogram performed in 2010 indicated that Ms. Smith
does not have this disorder.

[15]        
Ms. Smith testified that she had plans to start her own nail
technician business that preceded the accident. She and her friend, Hayley Peet,
discussed trying to open a business together in which Ms. Peet did
hairstyling and she did nails.

[16]        
The plaintiff testified that on the night of the Accident she felt
shocked and shaken and was not thinking clearly. She called her friend, calmed
herself, and then proceeded to her intended destination – her brother’s
residence – which was a three-minute drive.

[17]        
At her brother’s residence, she began to feel sharp pain between her
shoulder blades and in her neck. She also started getting numbness in her right
arm. She took Advil and used some ice on her neck and shoulders that evening.

[18]        
The next day she felt very sore in her neck and shoulders and the
numbness in her arm continued as well. She called her family doctor the morning
after the Accident and went to see him the following day.

[19]        
Ms. Smith tried several forms of treatment to relieve her symptoms.
Following the Accident, she saw her family doctor 28 times. She saw a
physiatrist in the fall of 2010 and again in the fall of 2012.

[20]        
In August 2009, she began massage therapy, which she continued until
February 2011, when her physiatrist recommended that she stop. She testified
that massage therapy provided little relief, and sometimes worsened her pain.

[21]        
From August 2011 to April 2012, she tried treatments with a
chiropractor. She found the chiropractic treatment provided only temporary
relief.

[22]        
In March 2012, the plaintiff began a physiotherapy and rehabilitation program,
which helped her with an exercise program to increase her strength. She stated
that this program provided her with significant relief from her symptoms. She
continues to do the exercises on a daily basis.

[23]        
Ms. Smith testified that at the time of the trial, approximately
four years after the Accident, she still has pain in her neck and shoulders
and, to a lesser extent, in her lower back. This pain means that she has
restricted use of her arms. She experiences headaches and migraines
occasionally.

[24]        
Ms. Smith stated that because of her pain levels she tires more
easily and does not socialize as often as she did prior to the Accident. She
testified that her pain also interferes with her ability to be physically active.
She also claims that her injuries negatively impacted her relationship with her
long term partner and caused that relationship to break down.

[25]        
At the time of the Accident Ms. Smith was working at a dollar store
as a cashier, clerk, and shelf stocker. When she returned to work following the
Accident she was in too much pain to complete the work day and left halfway
through her shift. She testified that her employer asked her to leave her job
because of her injuries.

[26]        
Ms. Smith’s accounts of her employment history in the period between
July 2009 and May 2011 are varied and difficult to follow. It is sufficient to
say here that during that time she worked at a number of entry level positions
and took some grade 11 and 12 courses. I will discuss her employment history during
this period when discussing damages for past wage loss.

[27]        
On June 30, 2010, Ms. Smith was working as a server at the Fort
Langley Golf Course when she injured her shoulder while setting up a patio table
umbrella. She said when she was reaching up to click the umbrella into place
she felt a pain in her shoulder. The pain from that injury subsided within
three weeks. Although her manager filed a Worksafe BC Employer’s Report of
Injury or Occupational Disease, Ms. Smith did not fill out the forms
necessary to complete the claim.

[28]        
In May 2011, Ms. Smith applied to the Roggendorf Nail School. By
all accounts, she excelled at and enjoyed her nail technician course and
completed the program in November 2011.

[29]        
In January 2012, the plaintiff began a mobile nail technician business.
Through this business, Ms. Smith travels to clients’ homes to provide
manicure and pedicure services. She also gathers together groups of clients for
“nail party” events. She advertises through a Facebook page she established to
market her business and through word of mouth.

[30]        
Ms. Smith testified that her pain levels have a significant impact
on her ability to conduct her business. She can only conduct one or two nail
appointments a day before her pain and fatigue interfere with her ability to
work. She often has to cancel appointments when she wakes up with a migraine or
she has a flare-up in her pain level. She testified that cancelling
appointments negatively affects her ability to build and maintain a client
base.

[31]        
When Ms. Smith provides services to two or three women at a nail
party she usually experiences increased pain levels. She testified that she
would not be able to complete the nail parties without the assistance of Ms. Peet.
When Ms. Peet accompanies Ms. Smith to nail parties she loads and
unloads the supplies from the car, fills, empties, and carries footbaths, and
hands Ms. Smith her tools as she works so she does not have to reach for
them.

[32]        
Ms. Smith testified that she currently earns approximately $200 per
week with her business, which is approximately $10,000 per year. In 2012, she
reported a $9000 yearly income from the business.

Sean Parhar

[33]        
Mr. Parhar and Ms. Smith were in a relationship for
approximately eight years. They lived together at the plaintiff’s mother’s
house when they were teenagers and approximately one year before the Accident
they moved into a townhouse that Mr. Parhar purchased.

[34]        
Mr. Parhar testified that after the Accident the plaintiff lost
interest in doing activities they used to enjoy together, such as camping and
hiking. He also said that the plaintiff had difficulty with household work,
such as vacuuming and scrubbing the bathroom. He claimed that his frustration
with the plaintiff’s limitations caused him to cheat on her and their
relationship subsequently broke down.

[35]        
I did not find Mr. Parhar’s evidence helpful and I do not accept the
argument that the Accident is responsible for the breakdown of their
relationship. I find that there are other explanations for why their
relationship ended that are just as likely to account for it.

[36]        
For example, Mr. Parhar was very concerned with money. He stressed
that one of the reasons that he became frustrated with Ms. Smith after the
Accident was that she was not earning very much money. In fact, the evidence
shows that the plaintiff’s income was lower the year prior to the Accident than
the year following the Accident. It appears from the plaintiff’s evidence that
she would never have been a major wage earner, even if the Accident had not
occurred.

[37]        
A temporary inability to perform certain forms of housework and certain
physical activities cannot be responsible for Mr. Parhar’s decision to be
unfaithful to his partner. It appears that the relationship died a natural death.

Hayley Peet

[38]        
Ms. Peet has been Ms. Smith’s close friend for eight years. She
testified that the plaintiff has been less active since the Accident and holds
back from doing certain activities, such as hiking, throwing a ball around, or
going tubing at the lake. She also stated that Ms. Smith has been less
cheerful since the Accident.

[39]        
Ms. Peet recalled that prior to the Accident she and the plaintiff
discussed plans to open a business together in which the plaintiff would
provide nail services and she would provide hair-styling services. Ms. Peet,
now 26 years old, has not taken any steps towards this goal and is currently
unemployed.

[40]        
Ms. Peet also testified about the assistance she provides to Ms. Smith
during nail parties. She estimated that without her help, the plaintiff could
only see two clients per day, whereas with her help she can see three or four
clients per day.

[41]        
Ms. Peet testified that she has seen the plaintiff cancelling nail
appointments when she wakes up with a migraine.

[42]        
Ms. Peet conceded on cross-examination that as her best friend, she
would like to see the plaintiff do well in this litigation.

Terrence Greer

[43]        
Mr. Greer has been the plaintiff’s friend for approximately eight
years. He stated that prior to the Accident the plaintiff was ambitious and
enjoyed life, whereas now she is testy and complains a lot. He also said the
plaintiff does not go out with friends or participate in activities as often.

[44]        
Mr. Greer confirmed that the plaintiff had discussed owning her own
business prior to the Accident. He testified that when he saw her at a nail
party she seemed “really fatigued”.

[45]        
Mr. Greer also agreed that he was hopeful that the plaintiff will
do well in this litigation.

Christopher Tyler Smith

[46]        
Mr. Smith is the plaintiff’s brother. He testified that when the
plaintiff arrived at his house on the night of the Accident she was trembling
and that after an hour she developed some stiffness in her shoulders and neck.

[47]        
Mr. Smith also testified that since the Accident Ms. Smith has
seemed less motivated and that many things have been difficult for her. He
conceded on cross-examination that Ms. Smith was quite affected by her
break-up with Mr. Parhar and that he could not distinguish which changes
in her mood were brought about by the Accident and which were brought about by
the break up.

Van Do

[48]        
Ms. Do was one of the plaintiff’s teachers at the Roggendorf Nail
School. She recalled that the plaintiff was a very good student and that she
showed patience and focus in completing her work.

[49]        
I accept her evidence on this point.

[50]        
She testified that in her experience a nail technician can earn between
$2000 and $3000 a month if they work full-time. She stated that her impression
was that approximately 10% of her students opened their own businesses, but admitted
that she only heard back from approximately half of the graduating students.

[51]        
I do not understand that any expert report was served.

[52]        
Ms. Do’s evidence on the earning capacity of a nail technician
cannot be given any weight. She was not qualified as an expert and her evidence
constitutes hearsay.

[53]        
She did not suggest that she had had such earnings as a nail technician
and she cannot give evidence of what other nail technicians earned.

Dr. Jasper Burger

[54]        
Dr. Burger has been the plaintiff’s general practitioner since
2007. He saw her on July 13, 2009, two days after the Accident, and has seen
her periodically since then.

[55]        
Dr. Burger testified that the injuries the plaintiff sustained from
a motor vehicle accident when she was 10 years old were not still present at
the time of the Accident.

[56]        
He reported that Ms. Smith saw him for some digestive problems in
October 2008, at which time she told him she was experiencing some neck
pain. He recommended rest, ice, compression and elevation, but no further
treatment. He testified that he did not think this neck pain was related to her
injuries following the Accident. Dr. Burger noted that in October 2008, Ms. Smith
had a normal range of motion in her neck, whereas she had a decreased range of
motion following the Accident.

[57]        
Dr. Burger also testified that the plaintiff’s echo cardiogram
presented as normal, which indicated that she does not have Marfan Syndrome as
some members of the her family do.

[58]        
Dr. Burger testified that on Ms. Smith’s first post-Accident
visit she reported pain in her trapezius muscles and on the left side of her
lower back, decreased range of motion in her neck, and tingling in her right
hand. Dr. Burger prescribed an antispasmodic drug to use along with the
Advil she was already taking.

[59]        
Ms. Smith continued to complain of neck and shoulder pain over the
next three years that she saw Dr. Burger. She reported that she continued
to experience difficulties with sitting, standing, walking, and doing her hair.

[60]        
Dr. Burger has provided Ms. Smith with referrals to massage
therapy and chiropractic treatments when she requested it. On May 28, 2012, Dr. Burger
requested an MRI for the plaintiff to investigate her neck and shoulder pain.

Dr. Cecil Hershler

[61]        
Dr. Hershler is a physiatrist who examined the plaintiff on October
7, 2010 and November 21, 2012. Dr. Hershler was qualified as an expert in
physical medicine and rehabilitation and his expert report was served at trial.

[62]        
During his first assessment in October 2010, Dr. Hershler found
that the plaintiff had moderate soft tissue injuries in her neck and shoulders.
At the time, Ms. Smith told him that she had constant pain in the neck and
shoulders, although her lower back pain had resolved and her headaches were
less frequent. She reported that her pain caused interruptions in her sleep and
made some activities that involved raising her arms difficult.

[63]        
Dr. Hershler was of the opinion that the injuries were caused by
the Accident, since the symptoms began after the Accident. He estimated at that
time that she would remain symptomatic for another one or two years.

[64]        
Dr. Hershler recommended at the end of this assessment that she
decrease the frequency of her massage therapy treatments and that she engage in
a core strengthening rehabilitation program. The plaintiff followed both of
these recommendations.

[65]        
Dr. Hershler found that the plaintiff was still reporting pain
during his second assessment on November 21, 2012, particularly with certain
physical activities, such as prolonged sitting.

[66]        
The radiologist who reviewed Ms. Smith’s MRI findings observed a
mild loss of disc height at C5-6 of her spine and a small midline focal disc
protrusion that did not deform the cord or result in nerve root contact. Dr. Hershler
opined that the disc protrusion was likely due to weakening of the fibrous
lining surrounding the disc. He stated that this protrusion could be
contributing to the pain the plaintiff experiences.

[67]        
Dr. Hershler acknowledged that there is no way to be sure what
caused the protrusion. However, he testified that given her youth and the fact
it is so close to the area in which she reported pain following the Accident
that the disc protrusion was likely caused by the Accident.

[68]        
At the end of this assessment, Dr. Hershler recommended that the
plaintiff undertake pulse signal therapy treatment, which he would provide.
From his clinical experience, 70% of patients who undergo this treatment
experience some improvement in their pain levels. Dr. Hershler also
recommended that the plaintiff continue with her core strengthening exercises.

[69]        
Dr. Hershler testified that based on his experience, 80% of
patients recover from injuries within two to three years and are able to
function with tolerable pain levels. Another 10% will take four to five years
to recover, and the final 10% will have pain permanently. Ms. Smith is
still experiencing pain approximately four years after the Accident. Based on
this model, Dr. Hershler opined that Ms. Smith will remain
symptomatic for at least one more year and perhaps into the foreseeable future.

[70]        
However, Dr. Hershler’s evidence was somewhat equivocal in this regard.
He testified that her pain appeared to have remained essentially the same for two
years between his assessments. Yet in his report to the Court, he records her
reported pain levels at his first assessment as 8 out of 10 and at his second
assessment as 5 or 6 out of 10.

[71]        
While I appreciate estimating pain levels on a numerical scale is an
inexact exercise, this indicates that the plaintiff reported some improvement
in her pain levels over this two-year period, notwithstanding Dr. Hershler’s
gloomy prognosis.

[72]        
Based on Dr. Hershler’s clinical model, of patients who continue to
experience pain four years after the onset of their injuries, half will
experience pain permanently and half will still go on to experience
improvement. Dr. Hershler did not say that he knew with any degree of
certainty whether the plaintiff would fall into the former or latter category.

Dianna Robertson

[73]        
Ms. Robertson is an occupational therapist who was qualified as an
expert witness and her expert report was served. Ms. Robertson conducted a
functional capacity assessment of Ms. Smith in February 2013, shortly
after she completed her rehabilitation program. The assessment involved a
battery of tests conducted over the course of six hours.

[74]        
Ms. Robertson concluded that the plaintiff is able to function in
work activities in the sedentary to light work levels. She identified some
restrictions on Ms. Smith’s physical abilities, such as lifting and
carrying heavy items and kneeling, crouching, standing, or sitting for extended
periods of time.

[75]        
Ms. Robertson opined that Ms. Smith is employable, provided
that her work is limited to sedentary or light occupations and that her
employer provides some accommodations. She testified that Ms. Smith’s
current occupation as a self-employed, part-time nail technician provides the
flexibility she requires.

[76]        
If the plaintiff wishes to continue operating her business, Ms. Robertson
recommended that she change the provision of mobile services to working from
home. It was Ms. Robertson’s opinion that being able to work from an
ergonomically set up work station at home, rather than having to drive to
clients’ homes and carry supplies would help Ms. Smith cope with her pain.

[77]        
However, Ms. Robertson acknowledged on cross-examination that this part
of her opinion was speculation, since she did not have any information on the
actual set up of either the home environment or the mobile setup the plaintiff
worked in.

[78]        
I find it surprising that Ms. Robertson would provide an opinion
about the set up of the plaintiff’s work station when she had not seen it.

Derek Nordin

[79]        
Mr. Nordin was qualified as a certified vocational evaluator and
served an expert report at trial. Mr. Nordin conducted a vocational
assessment of Ms. Smith in February 2013. He performed a battery of
vocational tests with her.

[80]        
Mr. Nordin testified that based on her employment history and her
education level, the most likely employment open to Ms. Smith would be in
areas that required skills she could learn through experience. He identified a
sample of occupations that Ms. Smith could have been employed in had she
not sustained injuries from the Accident, such as food counter attendant,
customer service representative, and office clerk. The salary range for these
jobs is between $24,000 and $44,000.

[81]        
Mr. Nordin testified that a nail technician is one of the most
sedentary jobs to be found in today’s economy. He estimated that nail
technicians would earn a full-time annual salary in the range of $20,000 to
$24,000.

[82]        
He opines that it is unlikely the plaintiff could retrain for a more
intellectually demanding but even less physically demanding job and believes it
very unlikely that the plaintiff would complete college level education.

[83]        
Mr. Nordin’s opinion with respect to her vocation was that continuing
part-time with her business was the plaintiff’s best option. Since the
plaintiff has difficulty with coping with this flexible, part-time, sedentary
work, Mr. Nordin does not believe heavier work on a full-time basis is an
option for her while she experiences the pain levels that she currently reports.

Darren Benning

[84]        
Mr. Benning is an economist whose expert report was served, but did
not appear for cross-examination at trial. He created projections of Ms. Smith’s
future loss of income at the request of plaintiff’s counsel.

[85]        
The plaintiff submits that the Court should rely on Mr. Benning’s
projections in calculating Ms. Smith’s loss of future earning capacity
based on a number of assumptions.

[86]        
Mr. Benning has calculated the projected losses on the basis that
the plaintiff will suffer loss to the end of her working life.

[87]        
The defendant submits that Mr. Benning’s report is of no use in
this case.

The Defendant’s Case

Dr. Kendall

[88]        
Dr. Kendall is an orthopaedic surgeon and a clinical assistant
professor in the Faculty of Orthopaedics at the University of British Columbia.
His practice includes trauma care for patients with injuries similar to the
type the plaintiff sustained. He was qualified as an expert and served an
expert report to the Court on the basis of an assessment of the plaintiff performed
in March 2013.

[89]        
Dr. Kendall reported that Ms. Smith’s injuries were consistent
with soft tissue injuries of her neck, upper back, and, to a lesser extent, her
lower back. He testified that the plaintiff had slightly reduced rotation and
lateral bending flexibility in her neck for someone of her age, which is
consistent with someone who has neck pain. He noted that her pain levels
increase when her arms are raised, which is a position she has to assume when
working.

[90]        
He concurred with the opinion of Dr. Hershler that there was no
evidence of fracture-dislocation, nerve root injury, or spinal cord injury.

[91]        
Dr. Kendall stated in his report that the slight loss of disc
height and the disc protrusion detected on Ms. Smith’s MRI does not
indicate injury, as these findings are not associated with definite symptoms.
He does not believe that the MRI revealed anything that is responsible for the
pain the plaintiff is experiencing.

[92]        
Dr. Kendall found that Ms. Smith appeared severely
deconditioned from her physical examination. He stated that deconditioning may
be an indication of ongoing soft tissue injury. Based on the review of her
functional testing and the progress noted from her rehabilitation program, Dr. Kendall
was of the opinion that these benefits were not maintained. He opined that she
has not continued with her self-directed strengthening program and recommended
that she undergo a strengthening program with a personal trainer.

[93]        
Dr. Kendall testified that the part time nature of the plaintiff’s
business is due to the fact that she has not been able to find enough clients
for full time work, rather than any physical disability. While this may seem an
obvious conclusion, it is not one for Dr. Kendall to make and I do not
accept Dr. Kendall’s opinion on this point.

Analysis

Causation

[94]        
Liability for the Accident has been admitted by the Defendant. Ms. Both
is solely responsible for the injuries Ms. Smith sustained in the
Accident.

[95]        
The plaintiff must establish on a balance of probabilities that but for
the negligent actions of the defendant she would not have suffered the injuries
that she did. The negligent conduct must be substantially connected to the
injuries. This test was recently articulated in Clements v. Clements,
2012 SCC 32 at paras. 8-10, 46:

[8] The test for showing causation is the “but for” test. The
plaintiff must show on a balance of probabilities that “but for” the
defendant’s negligent act, the injury would not have occurred. Inherent in the phrase
“but for” is the requirement that the defendant’s negligence was necessary
to bring about the injury ― in other words that the injury would not have
occurred without the defendant’s negligence. This is a factual inquiry. If the
plaintiff does not establish this on a balance of probabilities, having regard
to all the evidence, her action against the defendant fails.

[9] The “but for” causation test must be applied in a robust
common sense fashion. There is no need for scientific evidence of the precise
contribution the defendant’s negligence made to the injury. See Wilsher v.
Essex Area Health Authority, [1988] A.C. 1074 (H.L.), at p. 1090,
per Lord Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.

[10] A common sense inference of “but for” causation from
proof of negligence usually flows without difficulty. Evidence connecting the
breach of duty to the injury suffered may permit the judge, depending on the
circumstances, to infer that the defendant’s negligence probably caused the
loss. See Snell and Athey v. Leonati, [1996] 3 S.C.R. 458. See
also the discussion on this issue by the Australian courts: Betts v.
Whittingslowe (1945), 71 C.L.R. 637 (H.C.), at p. 649; Bennett v.
Minister of Community Welfare (1992), 176 C.L.R. 408 (H.C.), at
pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R.
53; Roads and Traffic Authority v. Royal, [2008] HCA 19, 245
A.L.R. 653, at paras. 137-44.

[46] …A trial judge is to take a
robust and pragmatic approach to determining if a plaintiff has established
that the defendant’s negligence caused her loss. Scientific proof of causation
is not required….

[96]        
The plaintiff must also satisfy the Court on a balance of probabilities
that her injuries were a reasonably foreseeable consequence of the defendant’s
negligent actions. To demonstrate that the injuries she suffered are not too
remote to be viewed as legally caused by the defendant’s negligence, Ms. Smith
must show that it was foreseeable that a person of ordinary fortitude would
suffer the injuries she did: Mustapha v. Culligan of Canada Ltd., 2008
SCC 27 at paras. 12, 18.

[97]        
Although the severity of the impact was minimal in this Accident, that
does not mean the plaintiff could not have suffered the injuries she alleges. I
find Madam Justice Dardi’s comments in Midgley v Nguyen, 2013 BCSC 693
at para. 175 helpful in this regard:

[175] There is no legal principle
that holds that if a collision is not severely violent or if there is no
significant damage to a motor vehicle, the individual seated within that
vehicle at the time of the impact cannot have sustained injuries. The
authorities clearly establish that, while the lack of vehicle damage may be a
relevant consideration, the extent of the injuries suffered by a plaintiff is
not to be measured by the severity of the force in a collision or the degree of
the vehicle’s damage. Rather, the existence and extent of a plaintiff’s
injuries is to be determined on the basis of the evidentiary record at trial:
see Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236.

[98]        
The defendant concedes that the plaintiff sustained injuries as a result
of the Accident. However, the defendant submits that the causation and extent
of the injuries must be assessed on the whole of the evidence, which includes
evidence of the severity of the impact.

[99]        
It is clear from the evidence that the impact in the Accident was not
particularly severe. In coming to this conclusion, I have considered the fact
that the damage to the vehicles was negligible, neither vehicles’ airbags
deployed, the defendant’s seatbelt did not lock, and the plaintiff’s car did
not move forward far enough to hit the car in front of it.

[100]     However, on
the basis of the evidence before me I find that the plaintiff has demonstrated
that the pain in her neck, shoulders, and lower back, as well as headaches,
were caused by the Accident. These symptoms emerged after the Accident, and
according to both the plaintiff’s and the defendant’s medical experts, these
pain symptoms are consistent with soft tissue injuries.

[101]     I find
that the neck pain the plaintiff reported to Dr. Burger a few months prior
to the Accident was not a pre-existing condition that has impacted her
injuries. One complaint of an episode of neck pain is not uncommon and is
insufficient to indicate that she had a pre-existing condition that caused neck
pain.

[102]     The
medical evidence presented at trial indicated that the plaintiff does not
suffer from Marfan’s Syndrome, therefore I do not consider this a contributing
factor to her injuries.

[103]     I find
that the plaintiff’s injury to her right shoulder sustained while setting up a
patio umbrella is not a contributing factor in her ongoing pain. The plaintiff
testified that this injury stopped causing her pain within three weeks. Dr. Kendall
stated in cross-examination that this injury is not related to the injuries
from the Accident.

[104]     I find it
is likely she will continue to have some pain resulting from the soft tissue
injuries she suffered in the Accident.

[105]     However, I
am not satisfied the plaintiff has demonstrated that this pain will not improve
or that the residual pain will be severe.

[106]     The expert
evidence regarding whether her MRI revealed an abnormality that could account
for her pain was equivocal and it does not form part of my conclusion regarding
her past, current, or future condition.

Failure to Mitigate Damages

[107]     The
defendant argues that the plaintiff failed to mitigate her damages by not
following the recommendations for treatment made by her health care providers. Specifically,
the defendant alleges that if Ms. Smith had begun a physiotherapy and
rehabilitation program immediately after it was recommended by Dr. Hershler
in October 2010, rather than beginning as she did in March 2012, that her pain
levels would have improved sooner.

[108]    
In Chiu v Chiu, 2002 BCCA 618, the court set out the relevant
principles in considering whether a plaintiff had failed to mitigate damages at
para. 53:

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. These principles are found in Janiak v. Ippolito, [1985] 1
S.C.R. 146.

[109]     In Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144 at paras. 57-59,
the court overturned the trial judge’s decision to reduce the plaintiff’s
damages for failure to mitigate. In that case, the trial judge found that the
plaintiff had acted unreasonably by not following a recommended course of
cortisone injections that may have provided relief. The appeal court found that
the trial judge had misapplied the Chiu test, as the plaintiff
reasonably believed the injections would not help and the trial judge “did not
find that the treatment would have reduced the symptoms” (at para. 57,
emphasis in original).

[110]     It is
possible that Ms. Smith may have experienced improvement in her symptoms
sooner if she had begun a rehabilitation program earlier. I note that both Dr. Hershler
and Dr. Kendall emphasized the importance of Ms. Smith learning and
maintaining a strengthening rehabilitation program.

[111]     However,
the evidence does not establish that beginning an exercise rehabilitation
program immediately after it was recommended would have reduced Ms. Smith’s
symptoms.

[112]     The
plaintiff in Manson v. Kalar, 2011 BCSC 373 faced a similar claim that
he had failed to mitigate his damages by not following his doctor’s
recommendations that he attend physiotherapy and strengthen his core muscles by
undergoing an exercise program under the supervision of a personal trainer.
Although he attended some physiotherapy, he did not undertake any kind of exercise
program, nor did he take another form of treatment, such as chiropractic,
acupuncture, or massage therapy. Nevertheless, in the absence of any certainty
that the recommended course of treatment would have reduced the plaintiff’s
pain, the court rejected the defendant’s claim of failure to mitigate damages.

[113]     I note
that besides the physiotherapy and rehabilitation program, Ms. Smith tried
other courses of treatment to reduce her pain, including massage therapy and chiropractic
treatment. Many people who suffer injuries in motor vehicle accidents find
relief from their symptoms through these courses of treatment.

[114]     Ms. Smith’s
conduct is not to be compared to a standard of perfection, but to a standard of
reasonableness.

[115]     The
defendant has not met her onus of establishing that the plaintiff has failed to
mitigate her damages. Ms. Smith did not ignore Dr. Hershler’s
recommendation, but followed it by engaging in a physiotherapy and
rehabilitation program from March 2012 to January 2013. The fact that there was
a delay before she began the program does not amount to an unreasonable failure
to mitigate.

Damages

1. Non-Pecuniary Damages

[116]     Non-pecuniary
damages compensate the plaintiff for pain, suffering, loss of enjoyment of life
and loss of amenities.

[117]    
Although a non-pecuniary damages award must turn on the circumstances of
the case, the following list of relevant factors discussed by Madam Justice
Kirkpatrick in Stapley v. Hejslet, 2006 BCCA 34 at para. 46 are
helpful to consider:

[46] The inexhaustive list of common factors … that influence
an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff.

[citations omitted]

[118]     At the
time of the Accident the plaintiff was 21 years old, had an active social life
and engaged in a moderate level of physical activity.

[119]     As a
result of the Accident, the plaintiff continues to have headaches and pain
symptoms in her shoulders and neck. Although she had some pain in her lower
back following the Accident, the plaintiff testified that her lower back pain
has largely resolved itself.

[120]     Her
ongoing pain interferes with her ability to work and her goal of operating a
nail technician business has been detrimentally impacted as a result. The
plaintiff’s injuries prevent her from working full-time and cause her to cancel
appointments. The plaintiff would not be able to offer several people nail
services at parties without the assistance of her friend, Ms. Peet.

[121]     The
plaintiff and her witnesses testified that she has been unable to participate
in social and physical activities to the extent she did prior to the Accident. Her
pain levels have caused her stress and impacted her mood.

[122]     Following
the Accident, Ms. Smith found certain household work too painful, although
with the improvement of her pain over time she has been able to resume more of
this work.

[123]     I accept
that Ms. Smith has suffered these losses, and all of these factors will be
considered in calculating her non-pecuniary damages award.

[124]     However, the
plaintiff has not established that she lost her relationship with her long-term
partner because of the injuries she sustained in the accident. I find that this
loss is not substantially connected to the negligent conduct of the defendant.

[125]     I also do
not accept that the plaintiff will experience pain permanently and instead, I
find that there is a possibility that her pain will improve with time. I rely
on the plaintiff’s past acknowledged improvement with the active rehabilitation
program in this regard.

[126]     The
plaintiff submits that an appropriate range for a non-pecuniary damage award is
$65,000 to $80,000. The plaintiff provided several cases for the Court’s
consideration, including Azuma-Dao v. MKA Leasing Ltd., 2012 BCSC 10, Bergman
v. Standen, 2010 BCSC 1692, Guthrie v. Narayan, 2012 BCSC 734, Kardum
v. Asadi-Moghadam, 2011 BCSC 1566, McKay v. Powell, 2012 BCSC 1935, Rayner
v. David, 2012 BCSC 2048, and Trites v. Penner, 2010 BCSC 882. I
have summarized the three I find most comparable to this case:

(a) Azuma-Dao v. MKA Leasing
Ltd., 2012 BCSC 10 – $65,000

The plaintiff was a 28-year-old who
experienced pain in her neck and shoulders, tingling down to her fingers,
numbness and sharp pains in her lower back, daily headaches, and difficulty
sleeping. She was very active prior to the accident and participated in many
sports with a group of friends. By the time of trial the range of movement in
her neck had improved, although certain activities still caused pain and
tingling in her arms. Her headaches still occurred daily and she still had
difficulty sleeping.

(b) Bergman v. Standen, 2010
BCSC 1692 – $75,000

The plaintiff was 27 years old at
the time of the accident. She suffered a whiplash injury to her neck, a
contusion to her nose, discomfort in her chest, and a sore wrist, all of which resolved
within about six months of the accident. Before the accident she was active and
loved playing soccer, but her injuries interfered with her ability to participate
in this sport and do house work. At the time of trial she still had persistent
pain in her lower back, which interrupted her sleep. Her pain and fatigue
reduced the patience she had with her children and contributed to feelings of
guilt.

(c) Guthrie v. Narayan, 2012
BCSC 734 – $65,000

The plaintiff was 26 years old at
the time of the accident and suffered soft tissue injuries to her neck and shoulders.
Prior to the accident she was very active, participating in numerous activities
such as softball, waterskiing, tubing, hiking and kick-boxing. Her injuries
prevented her from participating in these physical activities, reduced the
amount of social events she could attend, restricted her ability to perform
household work, impacted her relationship with her partner, and made
accommodation at her workplace necessary. At the time of trial she was still in
pain on a daily basis and future improvement was unlikely.

[127]     The
defendant submits that an appropriate award for non-pecuniary damages is in the
range of $25,000 to $30,000. The defendant asks the Court to use the following
cases as its guide for non-pecuniary damages:

(a) Manson v. Kalar, 2011
BCSC 373 – $25,000

The plaintiff was a 52 year old
automobile salesperson who sustained mild to moderate soft tissue injuries to
his neck, upper back, and lower back in a rear end collision that created
approximately $5000 worth of damage to his truck. He did not take any time off
work, but his pain made some aspects of his job difficult. The plaintiff had
experienced his symptoms for three years and they had not resolved by the time
of the trial, but it was expected that he would recover in the foreseeable
future. The plaintiff did not lead sufficient evidence to persuade the court
that he had a significant change in his activities and general lifestyle as a
result of his injuries.

(b) Olianka v. Spagnol, 2011
BCSC 1013 – $30,000

The plaintiff was a 53-year-old man
employed as a maintenance and renovations worker. He was rear ended with
sufficient force to push his vehicle into the vehicle in front of his. He
sustained moderate soft tissue injuries to his neck and mid-back and mild soft
tissue injury to his low back. The plaintiff took four months off work due to
his injuries and continued to experience pain once he returned to work. His
injuries impaired his work and recreational activities for 27 months, although
by trial he had begun participating in physical activities once more. At the
time of trial, he was still in intermittent pain, but his pain was expected to
gradually subside in intensity and frequency.

(c) Ludwig v. Freghetto,
2012 BCSC 1721- $30,000

The plaintiff was a 40-year-old
delivery driver who was involved in a rear end collision that resulted in soft
tissue injuries to his neck, shoulders, and back. Although it was recommended
that he take time off work, his employer’s attitude prevented him from taking
more than minimal time off. His return to work exacerbated his symptoms. His
injuries interfered with his enjoyment of leisure activities and playing with
his children. At the time of trial, his symptoms had substantially improved,
but were not completely resolved. His prognosis for full recovery was promising
but still uncertain.

[128]     The cases
referred to by the defendant involve plaintiffs who are much older than Ms. Smith.
As plaintiff’s counsel argues, Ms. Smith’s youth means that there is a
possibility that she will experience symptoms for a significant length of time.

[129]     I also
note that the plaintiffs in the cases referred to by the defendant did not have
significant interruptions in their lifestyle and had recovered or were expected
to recover to a greater extent than Ms. Smith.

[130]     The cases
referred to by the plaintiff involve plaintiffs who were more active prior to
the Accident than Ms. Smith and who sustained more serious injuries than Ms. Smith
did.

[131]     In the
circumstances of this case, considering Ms. Smith’s age, pre-Accident
activity level, injuries, severity and duration of pain, interference with
lifestyle, and impairment of life and of social relationships, I award the
plaintiff $45,000 in non-pecuniary damages.

2. Past Loss of Income

[132]     The plaintiff
submits that her past loss of income is as much as $27,200, based on the
calculation that she was earning approximately $400 per week and was off work
for a total of 68 weeks in the period between the Accident and July 2011.

[133]     The
defendant argues that the plaintiff’s evidence regarding past loss of income is
incomprehensible and she has identified no income loss. The defendant states in
closing arguments that at most there was evidence to indicate that the
plaintiff was off for 10 weeks immediately following the Accident.

[134]     In a
document she prepared for her examination for discovery, the plaintiff reported
that after she was asked to leave her job at the dollar store she began working
at Champers Salon in August 2009.

[135]     During her
examination for discovery she discussed working two jobs at once – both while
working at the Champers Salon and at the Fort Langley Golf Course. In
cross-examination, she admitted that she had never worked two jobs of any kind
at once.

[136]     In the
document of her work history that she prepared for the Court, Ms. Smith reported
that she began working at the Zennkai Salon on July 20, 2009, approximately one
week after the Accident. She confirmed this during her testimony and stated
that she began working at Zennkai Salon “a week or two” after being asked to
leave the dollar store because she thought she would just have to answer
phones, rather than stock shelves, which was painful for her at the time.

[137]     I
permitted the plaintiff to be recalled to correct an inaccuracy in the work
history document that she provided to the Court. During that examination, she
clarified that she actually worked at the Zennkai Salon from July 20, 2010 to
October 29, 2010 and had made a mistake in the document she submitted to
the Court. This clarification gave rise to more questions than answers. For
instance, this correction would mean that she was working at the Champers Salon
and the Zennkai Salon simultaneously, which does not appear to be the case.

[138]     The
plaintiff’s general practitioner, Dr. Burger, recorded that she returned
to work on September 18, 2009, although the plaintiff does not recall telling
him that and is not sure what this would be a reference to. The plaintiff
reported to Dr. Kendall that she was off work for six to seven months. She
reported to Ms. Robertson that she was off work for 6 months. She reported
to Dr. Hershler that she was off work for four months. She provided Mr. Nordin
with a confused and incomplete work history.

[139]     In
cross-examination, the plaintiff denied telling expert witnesses that she was
off work for approximately six to seven months. She agreed that she did not
know what basis there was for any past income loss. Later in recall
examination, she claimed that she lost wages for 6 to 12 months, but that she
was unsure about that length of time.

[140]     I do not
believe the plaintiff was trying to actively mislead the Court, but she had a
great deal of trouble documenting her work history and appeared careless in the
documents she prepared and in the evidence she gave.

[141]     The
evidence establishes that the plaintiff lost wages for the 10-week period
immediately following the Accident. I award the plaintiff compensation for lost
wages between the Accident and September 18, 2009. At a rate of $400 per week,
this results in a damages award in this category for $4,000.

[142]     I do not
accept the plaintiff’s argument that she should be compensated for the seven
month period of time during which she attended nail technician school. The
plaintiff stressed in her evidence that her plan to become trained as a nail
technician predated the Accident. I therefore cannot find that she would not
have lost the wages during the time period that she was attending school but
for the Accident.

[143]     It is
entirely possible that the plaintiff had more than 10 weeks of lost wages following
the Accident, but the evidence before the Court is so contradictory and
confused that I cannot draw any conclusions from it. The plaintiff has not met
her burden of proof to establish that she lost income beyond the time period
immediately following the Accident.

[144]     Plaintiff’s
counsel did not make a claim for wage loss between January 2012 and the date of
trial. Without argument or evidence on what the plaintiff could have been
earning at her nail business between January 2012 and the trial but for the
Accident, I cannot make a finding for this period of time.

3. Loss of Future Earning Capacity

[145]    
A plaintiff is entitled to compensation for a loss of earning capacity
attributable to the injuries she sustained in the Accident: Gregory at para. 32.
In Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, Mr. Justice
Saunders set out the principles which inform the assessment of loss of earning
capacity:

·       
The task of a court is to assess damages, rather than to calculate
them mathematically – Mulholland (Guardian ad litem of) v Riley Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43;

·       
The standard of proof is not the balance of probabilities; the
plaintiff need only establish a real and substantial possibility of loss, one which
is not mere speculation, and hypothetical events are to be weighed according to
their relative likelihood – Athey v Leonati, [1996] 3 S.C.R. 458, 140
D.L.R. (4th) 235, at para. 27;

·       
Allowances must be made for the contingencies that the
assumptions upon which an award is based may prove to be wrong – Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R.
(2d) 99 (C.A.);

·       
Any assessment is to be evaluated in view of its overall fairness
and reasonableness – Rosvold, at para. 11.

[146]    
The plaintiff may demonstrate the amount of loss by one of two
calculation approaches, as set out by the British Columbia Court of Appeal in Perren
v. Lalari, 2010 BCCA 140 at para. 32:

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

[Emphasis in original]

[147]     When
calculating the possibilities, a court must consider that the plaintiff has a
duty to seek a line of work that she can pursue despite her injuries: Parypa
v. Wickware,1999 BCCA 88 at para. 67.

[148]     The
plaintiff argues that an earnings approach can be taken by assessing the loss
of future income from her nail technician business, rather than using a capital
asset approach. She submits that loss of future earning capacity should be in
the range of $157,640 to $189,168 based on the report prepared by Mr. Benning.

[149]     The
defendant takes the position that there is no basis for a loss of future
earning capacity.

[150]     I find
that the plaintiff has demonstrated that there is a real and substantial
possibility of a diminution of future earning capacity that will lead to a
pecuniary loss. Dr. Hershler’s evidence was that Ms. Smith will
likely continue to experience symptoms of pain for the foreseeable future. I
accept that Ms. Smith will need to continue to work on a part-time basis
and make other accommodations that affect her earning capacity.

[151]     However, I
do not accept the plaintiff’s suggestion that the plaintiff will experience
pain for the rest of her life. I find that there is a possibility that her
symptoms will improve with time.

[152]     For this
reason, I cannot rely on Mr. Benning’s report in assessing future loss of
earning capacity, which operates on the assumption that she would be
permanently disabled and therefore suggests an extremely large award.

[153]     There is
no question that Ms. Smith has mitigated her losses by choosing a line of
work that she can pursue despite her injuries. As Mr. Nordin testified, a
nail technician is one of the most sedentary occupations that Ms. Smith
could choose. The light physical demands of this work and the flexibility in
scheduling appointments goes a long way to enabling Ms. Smith to continue
in this occupation.

[154]     In 2012,
the plaintiff earned $9,000 from her nail technician business. She testified
that in 2013 she has earned approximately $200 per week, which indicates that
her income for 2013 will be similarly close to $10,000.

[155]     Mr. Nordin
estimated that if Ms. Smith worked full-time at her nail technician
business, she could earn approximately $20,000 to $24,000 annually, but
admitted that she was in a competitive field, with many nail technicians
offering services at lower rates.

[156]     Taking the
lowest figure of Mr. Nordin’s estimate, $20,000, I find that the plaintiff
will have a future loss of earning capacity of $10,000 annually for four years,
for an award under this head of $40,000. Beyond the next four years, it is my
view the plaintiff’s condition will continue to improve, particularly if she
undertakes another rehabilitation program.

4. Cost of Future Care

[157]     Dr. Hershler
is of the opinion that the plaintiff will benefit from a course of pulse signal
therapy, at a cost of $1,500.

[158]     Both Dr. Hershler
and Dr. Kendall recommend that the plaintiff continue meeting with a
physical rehabilitation trainer. The cost for this training will be $1,000 per
year for a period of three years.

[159]     This is a
program which has benefited the plaintiff in the past and should contribute to
her substantial improvement over the next three years.

[160]     The
plaintiff’s proposed cost of future care is $4,500 to pay for three years of
rehabilitation training and pulse signal therapy.

[161]     While pulse
signal therapy remains a novel therapy, Dr. Hershler provided evidence
that in his clinical experience, a substantial percentage of patients
experience improvement in their pain symptoms after they undergo this therapy.

[162]     The
plaintiff should be entitled to try this therapy. The potential it has to
improve her pain symptoms and therefore reduce the cost of loss of future
earning capacity makes it an inexpensive investment.

[163]     I award
the plaintiff $4,500 for the cost of future care.

5. Special Damages

[164]     The
parties have agreed to a special damages award of $5,192.25 for out of pocket
expenses.

Conclusion

[165]     I award
the plaintiff the following damages:

[166]    
Costs will be in the cause and subject to Rule 15-1. If the parties wish
to make submissions on costs, they may make arrangements with the Registry to
arrange time before me.

“L.D. Russell J.”

_______________________________________

The
Honourable Madam Justice Loryl D. Russell