IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131101

Docket: 44499

Registry:
Vernon

Between:

Ronna Pond

Plaintiff

And

Donna Bucsis,
also known as Diane Bucsis, also known as Danna Bucsis,
and Ronald Herbert Sedge

Defendants

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
In this personal injury action, the plaintiff seeks damages for injuries
she sustained in a motor vehicle accident that occurred on November 12, 2007.
On that day the defendant, Donna Bucsis, backed into the plaintiff’s vehicle in
the parking lot of a recycling depot in Vernon, B.C. The defendant admits
primary liability for the accident, but argues that the plaintiff was
contributorily negligent.

[2]            
The plaintiff is seeking general damages, damages for past loss of
income and future loss of earning income capacity, and award for loss of
housekeeping capacity, and special damages. The defendant concedes that the
plaintiff suffered an injury in the accident, but takes the position that her
injuries are not as extensive as she claims and argues that she has failed to
mitigate her damages.

Liability

[3]            
The defendant’s contention that the plaintiff was contributorily
negligent rests on her assertion that a reasonable driver in the plaintiff’s
circumstances would have sounded her horn prior to the collision, and had the
plaintiff done that the collision might have been avoided. The plaintiff argues
that although she saw the defendant’s vehicle approaching her vehicle, she
thought the defendant could see her and she thought the defendant would stop.
By the time she realized the defendant was not going to stop, it was too late
for her to sound her horn or take any other evasive action.

[4]            
The accident happened in the parking lot of a recycling depot in Vernon,
B.C. The plaintiff had gone there to drop off her recycling. She was alone in
her 1995 Plymouth Neon. When she arrived all of the unloading stalls were
occupied. She therefore parked some distance away to await an opening.

[5]            
The defendant was driving an older model Dodge camperized van. The
defendant was occupying one of the stalls at the recycling depot when the
plaintiff arrived. Shortly after the plaintiff arrived the defendant backed up
from the stall that she was occupying, turning as she did. She then backed into
the plaintiff’s vehicle. The point of impact on the plaintiff’s vehicle was
just in front of the driver’s door and just to the rear of the left front wheel
well. The point of impact on the defendant’s vehicle was the back right bumper.

[6]            
The plaintiff testified that she noticed when the defendant began to
back up because she was watching for a stall to open up. She thought the
defendant might have travelled 60 or 70 feet prior before hitting her. The
defendant was travelling slowly, at a speed the plaintiff estimated was
equivalent to jogging speed. The plaintiff testified that she thought the
defendant could see her. Until the instant before the impact, she thought the
defendant would stop and drive forward out of the parking lot.

[7]            
I am not persuaded on a balance of probabilities that the plaintiff was
contributorily negligent. She had arrived and parked in the parking lot prior
to the defendant beginning to back up. The accident happened during daylight
hours. The plaintiff was there to be seen. The plaintiff’s vehicle was
stationary but she was paying attention to what was going on around her. The
plaintiff testified that prior to the collision she did not have any
apprehension or fear that there would be a collision. I accept her evidence in
that regard, and I accept that the reason she had no apprehension was that from
her perspective she expected the defendant to stop and drive forward out of the
parking lot. She thought, reasonably in my view, that the defendant could see
her parked where she was. It was argued that it should have been obvious to the
plaintiff that the defendant could not see out of the rear window of the van. I
am asked to draw that inference based on photographs taken of the van some two
and one-half weeks after the accident. The defendant did not testify at the
trial. It is not clear to me that the defendant could not see out of the back
window of the van or that a reasonable person in the plaintiff’s position would
conclude that the defendant could not see out of that window. Further, the van
was equipped with exterior rear-view mirrors. In addition, the fact that the
defendant had to turn before striking the plaintiff’s vehicle would lead a
reasonable person to conclude that the defendant had seen the plaintiff’s
vehicle.

[8]            
Moreover, I am not persuaded that had the plaintiff honked prior to the
collision the accident would not have happened in precisely the way that it
did. Given the overall circumstances, including the slow speeds and closed
quarters, if it was reasonable to anticipate a collision, it would have been
reasonable to do so only moments before the collision occurred. Once aware that
a collision might happen, and allowing for the reaction time necessary to honk
the horn and for the reaction time of the defendant to respond, it seems to me
that the accident would have occurred in any event.

[9]            
For all these reasons, I am not persuaded that the defendant has proven
that the plaintiff was contributorily negligent for this accident. I find that
the accident was entirely the fault of the defendant.

Assessment of Damages

[10]        
The plaintiff is 51 years old. At the time of the collision she was 45.
She has three children from her first marriage and a daughter from her second
long-term relationship. Only her daughter, who is now 16 years old, remains
dependent upon her.

[11]        
The plaintiff married shortly after finishing high school and did not
continue her education until 1998 when she returned to school in pursuit of a
certificate qualifying her to work as a care aide. She obtained that
qualification in 2000. In 2001 she moved to Vernon with her daughter and began
working for the Canadian Mental Health Association at a care home for adults
with disabilities. The typical career path for care aides employed by the Canadian
Mental Health Association is to begin as a casual employee, graduate to
permanent part-time work, and then full-time work as positions become
available. The plaintiff initially accepted a permanent part-time position
working a night shift. This was difficult because she was a single mother with a
school-age child. She accepted an afternoon shift when it became available and
was working on a permanent part-time basis at the time of the accident. Her job
was a 0.5 position, that is, it was one-half of a full-time job or a 0.5
full-time equivalent position – an FTE in the argot of the organization. The
plaintiff was able to augment her income by taking extra shifts to cover
holidays or illnesses. Her duties included making evening meals for clients,
cleaning up after those meals, taking the clients to activities, and thoroughly
cleaning the rooms when clients were discharged. The latter activity involved
washing all the walls and floors, as well as the mattresses and furniture.

[12]        
The plaintiff’s economic circumstances were strained. She had a limited
social life. Her recreational activities revolved around her child and
attending garage sales on the weekends. She enjoyed regularly redecorating her
rented premises using things acquired at garage sales or second-hand stores.

[13]        
In the fall of 2008, about a year after the accident, she met Mitchell
Watson. They began dating in October of that year. Mr. Watson is employed
as a supervisor for a company that provides concrete for commercial buildings.
In 2008 his home was in Calgary, Alberta, but he was living in the Okanagan
Valley while working on a construction project in the area. In the spring of
2009 that project finished and he returned to Alberta.

[14]        
The parties’ relationship matured by the spring of 2009 and in April the
plaintiff packed up her belongings and moved to Alberta and into Mr. Watson’s
home. Mr. Watson had, in the meantime, taken on responsibility for a
project in Fort McMurray. The plaintiff was responsible for looking after his
home while he was away. By the fall of 2010 the project in Fort McMurray had
completed and Mr. Watson returned to live in his home with the plaintiff.
They were married in July 2012.

[15]        
When the plaintiff first arrived in Alberta she did not have a job. In
May 2009, about two months after arriving, she was hired by Alberta Health
Services as a homecare worker. She is employed in that capacity today. Her job
involves caring for elderly patients in their home. The duties she performs
vary from patient to patient, but generally she assists patients with baths and
showers, administering medications, and assisting them with other aspects of personal
care. She testified that the physical demands of her job are about the same as the
physical demands of the job she had been performing in Vernon.

[16]        
As she had in British Columbia, the plaintiff began work in Alberta as a
casual employee. She applied for and obtained a 0.5 permanent part-time
position in February 2011. As a half-time employee she worked two to three 7.5
hour shifts per week. As part-time positions with more hours became available,
the plaintiff applied for them. By December 2011 she was working in a 0.8
position. She testified that she found the physical demands of the job such
that she could not tolerate working that much, and in March of 2013 she
transferred into a 0.6 position which she continues to perform today. She now
earns $22.39 per hour. When she began with Alberta Health Services in 2009 she
was earning just under $18 per hour.

The Plaintiff’s Injuries

[17]        
The collision was a minor one. The damage to the plaintiff’s vehicle was
repaired for less than $800. Gerald Sdoutz is a mechanical engineer. He
reviewed photographs of the damage to the vehicles and the repair estimate for
the plaintiff’s vehicle. In his opinion, based on the damage he saw and the
plaintiff’s position in her vehicle, she experienced a speed change of less
than 2 km per hour. He likened such a change to the sensation one might feel if
one drove over a speed bump with either the right or left tires of a motor
vehicle. While Mr. Sdoutz’s conclusions are necessarily estimates, and
they do not account for all of the damage the plaintiff’s vehicle sustained (Mr. Sdoutz
was unaware that some of the damage had been repaired before the photographs he
examined were taken), the forces exerted on the plaintiff’s body were minor.

[18]        
The plaintiff felt fine right after the accident. She drove home without
difficulty. That evening, she said, she began to feel stiff in her neck and
shoulders. She went to a walk‑ clinic the next day and was seen by a
doctor who prescribed Robaxical, a muscle relaxant. She was told to apply ice
to the areas that were sore.

[19]        
After the accident, the plaintiff became aware of “crunching sounds” in
her neck when she rotated her head from side to side. She was concerned about
that and on November 22, 2007 she went to the emergency room of the Vernon
Jubilee Hospital. She was advised to continue icing the sore areas and continue
taking the muscle relaxant she had been prescribed. Further, she was told to
follow up with her family doctor.

[20]        
The plaintiff first saw her family physician, Dr. Michael Murphy,
about six weeks later, on January 7, 2008. He physically examined her and found
that she had a mild reduction in the range of motion of her neck on extension,
but that on flexion and rotation her range of motion was within the normal
limits. He arranged to have an x‑ray taken of her neck. The x‑ray
was taken on January 14, 2008 and it did not reveal any structural or bony
injuries.

[21]        
The plaintiff had stopped taking the pain medication that had been
prescribed by the attending physician at the walk‑ clinic. She found
taking this medication “knocked her out” so she stopped taking it. On January
7, 2008 Dr. Murphy prescribed Meloxicam, an anti-inflammatory medication
that is designed to be taken daily for a month. He also prescribed Flexoril, a
muscle relaxant, which is to be taken three times a day but on an as-needed
basis. When Dr. Murphy next saw the plaintiff a week later, on January 14,
2008, she had not yet had any of the prescriptions filled. She said that it was
because she could not afford to.

[22]        
The walk‑in clinic doctor who saw the plaintiff in November
recommended that she take a course of physiotherapy. The plaintiff saw a physiotherapist
on five occasions between November 23 and December 6, 2007. She told Dr. Murphy
on January 14, 2008 that the physiotherapy was not helping her. He advised her
to try a different physiotherapist and encouraged her to speak to her ICBC
adjuster to obtain coverage. He asked her to follow up in three or four weeks
so that he could monitor her response to the anticipated further physiotherapy
and the medications that he had prescribed. Two days later Dr. Murphy
contacted the plaintiff’s ICBC adjuster, discussed the x‑ray results with
that adjuster, and reviewed his plan for further physiotherapy for the
plaintiff.

[23]        
Dr. Murphy next saw the plaintiff on May 30, 2008. She reported
that she had not taken massage or further physiotherapy because it was too expensive.
She told Dr. Murphy that she did not take the Meloxicam because she was
concerned about the possible side effects. She reported to the doctor that she
was taking two 200 mg tablets of Advil, typically once a day, to control
the pain at the base of her neck. On physical examination Dr. Murphy found
that the plaintiff’s condition was essentially unchanged. The range of motion
in her neck had neither improved nor deteriorated. It was Dr. Murphy’s
opinion that the plaintiff’s symptoms seemed worse than his physical exam
suggested. He therefore gave her a prescription for Amitriptyline and
instructed her to take one 10 mg tablet every night for a month. It was
his hope that this medication would aid in allowing her to experience
restorative sleep, which might then lead to an improvement of her symptoms.
Amitriptyline is an older anti‑depressant medication which has been found
to assist patients in chronic pain when taken at low doses.

[24]        
Dr. Murphy next saw the plaintiff on June 27, 2008. She reported
that the Amitriptyline was really helping her, although she continued to feel
tired the day after she took it. She advised that she was not taking the
medication as prescribed, that is, on a daily basis, but rather only
periodically. He gave her a further prescription for three months of the drug,
but told her to simply use it as she saw fit and asked her to follow up in two
months.

[25]        
Dr. Murphy’s office contacted the plaintiff and arranged an
appointment on September 2, 2008 but she did not attend. She did come in on
September 12, 2008 and reported that she had not taken any more of the
Amitriptyline because she had lost the prescription. On physical examination Dr. Murphy
found that the plaintiff’s condition remained largely unchanged. He gave her
another prescription for Amitriptyline and explained that she should take it on
a regular basis, particularly because her symptoms were showing no signs of
improvement some nine months after the accident. He also suggested she might
benefit from massage therapy, and repeated his earlier recommendation that she
try a different physiotherapist for assistance in relieving her symptoms.

[26]        
Dr. Murphy has not seen the plaintiff since September 2008. She
moved to Alberta in the spring of the following year. It was, and is, Dr. Murphy’s
opinion that the plaintiff suffered a soft-tissue injury to her neck.
Notwithstanding that her symptoms persisted some nine months after the
accident, he felt that the injuries would not likely result in any permanent
disability. He expressed the view that the medication, in combination with
physiotherapy and massage therapy and an exercise regime, would result in a
dissipation of her symptoms over the six to twelve months following October
2008.

[27]        
On November 20, 2008 the plaintiff was assessed by Minda Chittenden, a
kinesiologist with Meridian Rehabilitation Consulting Inc. in Vernon. She
assessed the plaintiff on a referral from the Insurance Corporation. She found
that the plaintiff had limited range of motion in her neck, shoulders, back and
hips. She noted that the plaintiff had poor core strength. She recommended that
the plaintiff follow a structured stretching program for her neck, shoulders
and back. The program she designed involved stretching two or three times a day
for two months. Second, Ms. Chittenden recommended that the plaintiff
participate in a strengthening program designed to improve the musculature in
her neck and shoulders. Over the next two months Ms. Chittenden followed
up with the plaintiff, monitoring the exercises she had explained to her. Ms. Chittenden
saw the plaintiff on January 20. The plaintiff explained to her that she had
stopped taking the Amitriptyline on December 17 and said her symptoms seemed to
have increased since doing so. She told Ms. Chittenden that she had
stopped taking the drug on her doctor’s recommendation. Ms. Chittenden had
the plaintiff demonstrate the exercises that she had taught to her earlier. She
discovered that the plaintiff was doing three of the exercises incorrectly and Ms. Chittenden
gave her written material to correct those issues. On January 26 the plaintiff
called Ms. Chittenden and explained that although she felt “sore all
over”, the exercises that she had been given to perform were not increasing her
symptoms.

[28]        
Ms. Chittenden saw the plaintiff for the final time on February 20,
2009. The plaintiff reported that she was very sore because she had been
packing and moving furniture in preparation for her move to Alberta. The
plaintiff told Ms. Chittenden that her headaches had reduced in frequency,
and in fact she had had only three headaches in the past two months. Ms. Chittenden
found that the plaintiff’s range of motion in her neck was essentially
unchanged, but that her mobility in her shoulders had improved. She recommended
that the plaintiff continue with the stretching program that she had provided
to her, explaining that she needed to stretch two or three times a day for the
next two months. She also recommended that the plaintiff continue with the
strengthening exercises that had been provided to her. Ms. Chittenden
offered to take pictures of the plaintiff doing the exercises to augment the
drawings and other visual representations provided in the written material that
Ms. Chittenden had provided to the plaintiff. The plaintiff declined this
offer.

[29]        
Finally, the plaintiff has twice been assessed by Dr. Maryana Apel.
Dr. Apel is a specialist in physical medicine and rehabilitation. She saw
the plaintiff at the request of her lawyer. The first assessment took place on
April 21, 2009. On that occasion the plaintiff explained to Dr. Apel that
her headaches had improved and she was then experiencing them monthly. She
explained also that she had intermittent neck and shoulder soreness. On
examination Dr. Apel noted some decrease in the range of motion of her
neck. She diagnosed the plaintiff as suffering “chronic regional myofascial
pain syndrome” in both upper quadrants, but more markedly on the left side.
Second, she concluded that the plaintiff suffered mechanical neck pain. Again,
present on both sides but worse on the left side. In terms of recommendations Dr. Apel
wrote:

The patient’s exercise program
should not only be changed; it should defacto be established.

[30]        
She noted that the plaintiff should have been stretching at least three times
a day and preferably five times a day. In addition she recommended that
strengthening exercises should be undertaken to improve her posture and
cardiovascular fitness. As to pharmacological treatment, Dr. Apel agreed
with Dr. Murphy’s prescription of Amitriptyline. She suggested that the
plaintiff might substitute Nortriptyline if she was experiencing unpleasant
side effects with Amitriptyline. The latter medication is fairly inexpensive.
She emphasized the need to take this medication regularly as opposed to
occasionally, and to gradually increase the dosage until some therapeutic
effect is achieved. All of these recommendations should be followed, in Dr. Apel’s
opinion, for at least six months.

[31]        
In addition Dr. Apel “strongly” suggested that the plaintiff limit
her use of Advil, Tylenol and Ibuprofen to no more than ten days a month.

[32]        
On September 8, 2010 Dr. Apel saw the plaintiff again. During that
appointment, the plaintiff told Dr. Apel that she was no longer doing any
physical activity for the purpose of getting exercise. She was not doing any
stretching as previously recommended. She was not taking any prescription
medication but had increased her consumption of Tylenol and/or Advil. She
reported taking two pills at a time, four or five times a week. The plaintiff’s
self-reported concerns on the second assessment were intermittent neck and
shoulder pain, and her headaches, which had earlier appeared to have improved,
were, according to the plaintiff, worsening again.

[33]        
Dr. Apel concluded that her earlier diagnostic conclusions remained
valid and, in her opinion, the plaintiff continued to suffer from chronic
regional myofascial pain syndrome and mechanical neck pain. She concluded by
noting that:

Unfortunately, … none of the
previously suggested recommendations for Ms. Pond were followed. … This
includes recommendations for active rehabilitation which naturally can be done
at home, requiring no significant financial commitment, but skills to be taught
preferably by an exercise therapist or kinesiologist.

Dr. Apel repeated her recommendation for Nortriptyline.
Finally, she repeated her recommendation that the plaintiff limit her
consumption of Advil, Tylenol and Ibuprofen because excessive consumption of
those medications can cause an increase in the severity of headaches.

[34]        
The only other therapy that the plaintiff has taken subsequent to the
motor vehicle accident is a course of chiropractic treatments between April
2012 and August 2012. No report from the chiropractor, Dr. Brent Brown, is
before the court, nor is there any other evidence from him. The plaintiff
testified that she first went to Dr. Brown because her husband was seeing
him and he recommended she go. She went after doing “a lot of painting” at her
home in Alberta. She began to experience pain in her back, neck and shoulders
as a result and thus went to see Dr. Brown. She testified that she found
his treatments very helpful.

[35]        
Prior to the accident the plaintiff testified that she was in good
physical health. She had injured her back about 20 years before this accident,
but that injury had healed quickly and unremarkably and left her with no
residual complaints.

[36]        
As noted above, the plaintiff testified that she felt stiff and sore the
evening of the accident, and continued to feel poorly over the next several
days. She found that if she had to lift her arms above her head or perform
tasks with her arms outstretched in front of her she would experience pain.
Although she did not miss any of her scheduled shifts from work, she found that
some of the tasks she was required to perform were more difficult. She stopped
taking extra shifts because she found that she was so tired at the end of her
scheduled shifts she needed the time off to recover. The tasks she found most
difficult, at least initially, were the heavy cleaning chores required when
patients were discharged from the mental health facility. At home she found
vacuuming and laundry to be more difficult. She also experienced pain when
working in her yard. She said she was able to continue with the limited hobbies
she had, specifically redecorating or rearranging her home and living space.

[37]        
When the plaintiff moved to Alberta in the spring of 2009 she had to
clean her rental home before departing. She found the heavy work involved in
that chore caused her significant pain. She also found that packing was
difficult. She avoided lifting any heavy items during that move. The plaintiff
lived in rental accommodation throughout the time she was in Vernon. She had
moved several times as a result and had always moved herself, renting a U‑Haul,
packing and loading it herself.

[38]        
As had been the case in Vernon, the plaintiff did not miss any time from
her job once in Alberta. She was able to complete the tasks associated with her
job but found some of them difficult. In particular, putting pressure stockings
on elderly patients was difficult. Doing so involves squatting or kneeling down
and reaching forward. She has to perform that task between four and eight times
a day. She also finds it difficult to assist patients with showering or bathing
due to the postures required to render that assistance.

[39]        
Beyond the physical consequences of the accident the plaintiff testified
that the pain she experiences is fatiguing. She finds herself spent at the
conclusion of a working day. Further, she testified that she is often
uncharacteristically impatient and irritable in the evenings after a day of
work.

General Damages

[40]        
Counsel for the plaintiff argues that the plaintiff was a forthright and
credible witness. He argues that she is not one to dwell on her pains, but
rather attempts to work through them. Further, he argues that while the
plaintiff may not have followed all of the recommendations of the various
health care professionals who have assessed her, to the extent that is so it is
a consequence of her very  limited economic circumstances and not a reflection
of the severity of the pain she was suffering.

[41]        
The plaintiff argues that an award of $60,000 in general damages is
appropriate in this case. An award of that amount is said to be supported by
the range of damages awarded in Courtney v. Hutchinson, 2012 BCSC 188, Sooch
v. Snell, 2012 BCSC 696, and Paradis v. Gill, 2011 BCSC 1414.

[42]        
Counsel for the defendant argues that there is little or no objective
evidence of an injury in this case. Moreover, the plaintiff’s reported symptoms
have lasted must longer than the medical evidence suggests is ordinarily the
case. Given the foregoing, the defendant points to the often cited observation
of McEachern C.J.S.C. in Price v. Kostryba (1982), 70 B.C.L.R. 397
(S.C.) where at paragraphs 6 and 7 he wrote:

6 I am not stating any new principle when I
say that the court should be exceedingly careful when there is little or no
objective evidence of continuing injury and when complaints of pain persist for
long periods extending beyond the normal or usual recovery.

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

[43]        
Counsel for the defendant argues that the plaintiff’s testimony is
neither convincing nor internally consistent with the surrounding circumstances.
Among other things, the defendant points to the plaintiff’s failure to follow
almost all of the medical advice she was given. While this evidence is said to
support a conclusion that the plaintiff has failed to mitigate her damages, it
is also a surrounding circumstance to be considered when assessing the degree
of pain or discomfort the plaintiff has suffered.

[44]        
Viewed from this perspective, the defendant argues that an award of
general damages of between $3,500 and $9,000 is appropriate. Support for this
position is said to be found in Saluja v. Wise, 2007 BCSC 706, Brar
v. Kaur, 2010 BCSC 1220, and perhaps Ceraldi v. Duthie, 2008 BCSC
1812.

[45]        
In general I found the plaintiff to be an honest witness. Further, I am
satisfied that she attempted to describe the nature and effect of her injuries
in a generally balanced and forthright way. I do not agree, as counsel for the
defendant argues, that she is prone to exaggeration. She did testify that by
later in the evening of the day of the accident she felt as if she had been
“run over by a train”. I took her to use that figure of speech to convey that
she felt generally poorly and nothing more. I note further that Dr. Murphy
recorded in his report that the plaintiff told him that she had injured her
neck many years before and that the injury gave rise to symptoms that persisted
for a year. The plaintiff testified that while she had injured her neck previously,
the symptoms lasted only a month. She told Dr. Apel the same thing. I
attribute this discrepancy in Dr. Murphy’s report to a miscommunication
and nothing more. As noted, I find that the plaintiff has described her
symptoms honestly and without exaggeration.

[46]        
I am satisfied the plaintiff suffered a mild soft tissue injury to her
neck and shoulder area. I find that the injury was mild for several reasons.
First, Dr. Murphy described it as such. Second, the physical limitations
that the injury has given rise to are modest. Dr. Murphy, then Ms. Chittenden,
and finally Dr. Apel, measured the plaintiff’s range of motion in her
neck, the area most affected by her injury. All of them found minor reductions
in the plaintiff’s ability to bend her neck forward. The reduction, according
to Dr. Murphy, was about 5 degrees, something he described as “pretty
mild”. His findings were consistent with the findings of the others who
measured the plaintiff’s range of motion. Next, the plaintiff did not have any
decrease in the range of motion of her neck on rotation or left or right
flexion. Further, the plaintiff’s job involves significant physical movement.
She assists patients in and out of bathtubs, she necessarily squats to assist
in bathing patients, similarly she must bend over to assist in dressing them
and to otherwise attend to their needs. She performs these tasks repeatedly
throughout her working day. Not only has she not missed any time from her job
since the accident, she increased her hours of work, at least her regularly
scheduled hours of work, on several occasions since the accident. A further
indication of the degree of the plaintiff’s injury is that notwithstanding the
various prescriptions she has been given, she has managed her symptoms at least
in terms of medication almost exclusively with over-the-counter analgesics. Finally,
for the reasons I will address when discussing the question of mitigation, I am
satisfied that the plaintiff has not been diligent in following the advice she
has been repeatedly given, advice intended to alleviate the effects of her
injury. Leaving aside the question of whether her failure amounts to a failure
to mitigate, it is indicative, in my view, of the relatively minor nature of
her injury.

[47]        
In the fall of 2008, approximately a year after the accident, Dr. Murphy
expressed the view that the plaintiff’s recovery from the mild cervical strain
she had sustained was taking longer than might ordinarily be expected. In spite
of that he remained of the view that it was unlikely that her disability was
permanent. Rather, he felt that she would continue to experience some symptoms
for a further six to twelve months and, assuming she followed the advice he had
given her, those symptoms would dissipate during that time. Some eight months
later Dr. Apel assessed the plaintiff. In addition to the soft tissue
injury, she concluded that the plaintiff had developed chronic regional
myofascial pain syndrome. Dr. Apel concluded in April 2009 that it was
“likely” that the plaintiff would experience “discomfort, pain, stiffness upon
exposure to strenuous or unaccustomed activities”. She felt, however, that if
the plaintiff followed the therapies that had been recommended, including “most
importantly a meaningful fitness and conditioning program and attention to
ergonomics”, future aggravations and exacerbations of her symptoms could be
avoided. A year and a half later when Dr. Apel reassessed the plaintiff,
her diagnosis and prognosis did not change. That was so in part because the
plaintiff’s symptoms had remained constant, and in part because the plaintiff
had not implemented any of the recommended therapies that Dr. Apel had
explained earlier.

[48]        
In Courtney v. Hutchinson, Power J. awarded the 51-year-old
plaintiff $70,000 in non‑pecuniary damages. Mr. Courtney was
physically very active prior to the accident. He played squash, enjoyed lifting
weights, liked to wind surf and cycle. His job was physically demanding. He
suffered an injury in a rear end collision. The collision was significant in
that the defendant’s vehicle sustained some $10,000 in damage. He suffered a
soft-tissue injury to his neck that I would characterize as between mild and
moderate. The medical evidence was to the effect that his symptoms were likely
permanent. This was so in spite of the fact that he had been “proactive about
his personal health”. He had to significantly modify his recreational
activities as a result of his injury and that modification was expected to be
permanent. Mr. Courtney’s injuries were more serious and had a more
significant effect on his life than those sustained by the plaintiff.

[49]        
The plaintiff in Sooch v. Snell was a 33-year-old taxi driver. He
was injured in an accident some five years before the trial. The accident
involved significantly greater forces than did the accident that the plaintiff
here experienced. Ballance J. accepted the plaintiff’s evidence that he felt
the impact “hard”; the force caused the left side of his head and upper body to
“slam against the window” (para. 10). As a result the plaintiff suffered
chronic symptoms that fluctuate between “mild and moderate” (para. 89).
She found that his symptoms were likely permanent. Like the plaintiff, Mr. Sooch
managed his symptoms with non‑prescription medication. He was awarded
$45,000 in non‑pecuniary damages. The injuries sustained by Mr. Sooch
were more serious, and had a greater impact on his enjoyment of life, than the
injuries and their consequences for the plaintiff.

[50]        
In Brar v. Kaur, the plaintiff was injured when he was travelling
as a passenger in a vehicle that was rear ended by the defendant. The accident
was minor. The plaintiff was found to have suffered a mild soft-tissue injury
to his neck and back which resolved entirely within six months. He was awarded
$4,000 in non‑pecuniary damages.

[51]        
The plaintiff in Saluja v. Wise was awarded $3,500 in non‑pecuniary
damages. She was injured in an accident in which the vehicle she was driving
was rear ended by the defendant who was travelling at about 5 km per hour. Loo
J. concluded that the plaintiff was exaggerating the effects of her injuries.
She found that the plaintiff’s symptoms had “substantially resolved within four
weeks” (para. 28). Her “mild soft tissue injuries” had generally resolved
within three months and thereafter she experienced only occasional and
intermittent pain.

[52]        
The defendant points to these cases on the theory that, had the plaintiff
followed the medical and other advice she had been given for the treatment of her
symptoms, those symptoms would have resolved within six to twelve months after
the accident.

[53]        
Ballance J. succinctly and helpfully summarized the purpose and the
approach to the assessment of non‑pecuniary damages in the context of
personal injury claims. At paragraphs 85 and 86 she wrote:

[85]      Non-pecuniary damages are intended to compensate a
plaintiff for the pain, suffering and loss of enjoyment of life and of
amenities experienced as a result of the defendant’s negligent actions. They
are meant to compensate for the damages suffered to the date of trial and those
that the plaintiff will suffer in to the future. The essential principle,
expressed in a variety of ways, is that the fairness and reasonableness of such
an award is measured against the adverse impact of the particular injuries on
the particular individual plaintiff. Consequently, while fairness is assessed
by reference to awards made in comparable cases, it is “impossible to develop a
tariff”; each case must be decided on its own unique facts. The process is one
of assessment and is not amenable to mathematical precision: Drodge v. Kozak,
2011 BCSC 1316 [Drodge]; Trites v. Penner, 2010 BCSC 882; Lindal
v. Lindal, [1981] 2 S.C.R. 629.

[86]      In Stapley v.
Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A. enumerated a non‑exhaustive
list of factors to be considered in awarding damages under this head. They
include: the plaintiff’s age; the nature of the injury; the severity and
duration of the pain; disability; emotional suffering; loss or impairment of
life; impairment of family, marital and social relationships; impairment of
physical and mental abilities, loss of lifestyle and the plaintiff’s stoicism.

[54]        
Ms. Watson (formerly Ms. Pond) was 45 at the time of the
accident. She is now 51. She sustained a mild soft-tissue injury to her neck.
The pain she experienced was neither severe nor constant. It has, however,
persisted and, according to Dr. Apel, is likely chronic and permanent. The
effect on the plaintiff’s recreational activities has been modest. She has
experienced some impairment of her ability to enjoy life and modest impairment
of her family relationships. Her lifestyle has not changed in any significant
way, nor has she experienced other losses of a non‑pecuniary nature. I
assess her non‑pecuniary damages at $30,000.

Past Loss of Income

[55]        
The plaintiff seeks an award of $2,000 under this head of damages. As I
understand her position it is based on the fact that she was not able to take
extra shifts that were sometimes available and that but for the accident she
would have taken them. Further, the claim is based on the plaintiff’s decision
to forego the 0.8 position she had secured in favour of a 0.6 position. That
change was effective in the spring of this year.

[56]        
I am not persuaded that any entitlement to loss of past income has been
proven on the basis that the plaintiff did not work additional shifts in
British Columbia subsequent to the accident. There is simply no evidence that
shifts were available to be worked.

[57]        
Further, I am not persuaded that the plaintiff has proven a claim for
past loss of income based on a reduction in her hours of work in the spring of
this year. The plaintiff testified that when she moved to Alberta she wanted to
work full-time. She began as a casual employee and was made a permanent
part-time employee in June 2011. In December of that year she accepted a 0.8
position. In July 2012 she and Mr. Watson were married. Mr. Watson
earns about $100,000 a year from his employment. In March of 2013, thus about
15 months after taking up the 0.8 position and 9 months after her marriage, the
plaintiff sought and obtained a 0.6 position. She testified that she did that
because she found working longer hours too physically taxing. The plaintiff did
not identify any precipitating event that prompted her to reduce her hours. She
did not seek medical attention as a result of any increase in her symptomology,
either immediately before or at any time after her decision to reduce her hours
of work. Given this absence of evidence, and given the fact that the
plaintiff’s economic situation had both improved and stabilized as a result of
her marriage, am not persuaded that she has established that her decision to
reduce her hours was the result of injuries she sustained in the motor vehicle
accident.

Past and Future Loss of Income Earning Capacity

[58]        
As was pointed out by Garson J.A. in Perren v. Lalari, 2010 BCCA
140:

[32]      A
plaintiff must always prove … that there is a real and substantial
possibility of a future event leading to an income loss.

[59]        
Counsel argues that the “event” in this case has
already occurred. It is the reduction from a 0.8 position to a 0.6 position.
For the reasons just noted, I am not persuaded that reduction is a consequence
of the injuries that the plaintiff here sustained. Moreover, I am not persuaded
that there is any other basis to conclude that there is a “real and substantial
possibility” of a future event arising from the consequences of the motor
vehicle accident that will give rise to a loss of income. On her own evidence,
the plaintiff has not missed a single shift of work in the six years since the
accident. During that time she increased her hours of work on two separate
occasions. Her job is reasonably physically demanding. She has been able to
carry out all of the duties she has been assigned, without modification. There
is no reason to conclude that this will change in the future as a result of the
consequences of the motor vehicle accident.

[60]        
Further, it is noteworthy that neither Dr. Apel
nor Dr. Murphy expressed the opinion that the plaintiff was limited by her
injuries in her ability to perform her job. Dr. Murphy wrote that the
plaintiff’s injuries did not impair her ability to perform her job; Dr. Apel
simply expressed no opinion on the matter.

[61]        
In summary, I decline to award any damages for
past or future loss of income earning capacity.

Loss of Past and Future Housekeeping

[62]        
The plaintiff seeks an award of $10,000 under
this head of damages. The defendant argues that to the extent any loss of this
sort should be compensated it should be done as an award of non‑pecuniary
damages.

[63]        
It is open to the court to compensate for a loss
of this kind as a factor in or component of the assessment of non‑pecuniary
damages. When the loss cannot otherwise be quantified, it is preferable to
address it as an aspect of non‑pecuniary damages (see Eaton v. Regan,
2005 BCSC 3 at paras. 41-46).

[64]        
The evidence in this case touching on the
question of housekeeping comes from the plaintiff, her husband and her friend
(Charlene Neville). They all testified that the plaintiff is a conscientious,
indeed an immaculate, housekeeper. I accept that is so. The plaintiff testified
that since the accident she has found doing housework more difficult. She has,
however, continued to do it. She testified, however, that she is unable to keep
her house to the standard she formerly did, and finds activities such as doing the
laundry and the vacuuming more difficult. Mr. Watson testified that the
plaintiff remains a good housekeeper, and always tries to perform those tasks,
but she is unable to do some of the more substantial housekeeping chores such
as washing windows, scrubbing floors and the like. He testified that, as a
result, he often assumes the responsibility for those tasks.

[65]        
There is no evidence as to the amount of time
that Mr. Watson spends on housekeeping chores that he might not otherwise
feel were his responsibility. Nor is there any other evidence on the basis of
which this aspect of the plaintiff’s claim can be quantified.

[66]        
It is, in my opinion, a loss that is most
appropriately dealt with as an aspect of the assessment of non‑pecuniary
damages. I have taken all of the foregoing circumstances into account in my
assessment of non‑pecuniary damages.

Special Damages

[67]        
The only aspect of the plaintiff’s claim for
special damages that the defendant takes issue with relates to the chiropractic
treatments the plaintiff received between April and August of 2012. She
attended 22 chiropractic treatments in that period. The plaintiff testified
that she had been doing “a lot of painting at home” and experienced pain in her
back, neck and shoulders.

[68]        
The plaintiff had not taken any similar therapy,
such as physiotherapy, massage therapy, or chiropractic treatments for that
matter, since 2007. Her husband had been giving her massages in the evenings on
something approaching a daily basis. The length and frequency of the massages he
was providing to her did not change, at least there is no evidence that it
changed, as a result of the events in the spring of 2012. I am not persuaded
that the chiropractic treatment is properly recoverable. There is no evidence
that any medical practitioner, or any chiropractor for that matter, recommended
the treatment or associated the treatment with the injuries sustained in the
motor vehicle accident.

[69]        
The plaintiff is entitled to an award for
special damages of $97.06.

Mitigation

[70]        
In Chiu v. Chiu, 2002 BCCA 618, Low J.A.
explained the test to be applied in determining whether a defendant has proven
a failure to mitigate. At paragraph 57 he wrote:

…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.

[71]        
The defendant argues that the plaintiff has
failed to mitigate her damages in several ways. The principal basis is the
plaintiff’s failure to follow the exercise and stretching regime that several
health care professionals have recommended. A similar failure was alleged in Antoniali
v. Massey, 2008 BCSC 1085. At paragraph 31 Preston J. set out that which
the defendant must prove in order to establish a failure to mitigate on that
basis:

1.         that a
program of stretching and conditioning under the guidance of a personal trainer
would have reduced or eliminated the effect of the injuries;

2.         that
the reasonable plaintiff in [the plaintiff’s] circumstances would have followed
such a program;

3.         that [the
plaintiff] unreasonably failed to follow such a program and;

4.         the extent to which [the
plaintiff’s] damages would have been reduced if she had followed such a
program.

[72]        
Although the principal basis on which the
defendant relies in support of the position that the plaintiff has failed to
mitigate her damages relates to stretching and exercising, that is not the only
basis on which the proposition rests. The defendant argues that the plaintiff
unreasonably failed to take any of the various prescription medications
prescribed for her; that she did not continue with physiotherapy as recommended
by her health care providers; and that she did not reduce or limit her
consumption of over-the-counter analgesics as recommended by Dr. Apel.

[73]        
The plaintiff argues that there is no evidence
to support the conclusion that any or all of these therapies would have reduced
or eliminated the consequences of the plaintiff’s injuries. Further, the
plaintiff argues that to the extent she did not follow the medical advice she
had received, her failure to do so was not unreasonable. It was, rather,
primarily the result of her strained economic circumstances. In these
circumstances, the plaintiff argues that there should be no reduction based on
the claimed failure to mitigate.

[74]        
There are three aspects to the evidence relating
to the question of mitigation. They are: medications that the plaintiff was
prescribed; passive therapies such as physiotherapy and massage therapy that
was recommended; and stretching and exercising. Before turning to those
specific areas, I note some aspects of the plaintiff’s evidence that while not
amounting to evidence of a failure to mitigate are relevant to an assessment of
that general issue.

[75]        
On November 22, 2007 the plaintiff was advised
by medical staff at the Vernon Jubilee Hospital to follow up with her general
practitioner. She did not do that until January 7, 2008. According to Dr. Murphy
it is likely that a patient would have been able to obtain an appointment with
him during that period within two to four weeks. Next, the plaintiff did follow
up with Dr. Murphy after her January 14 appointment, as she had been asked
to do. At the conclusion of that appointment, she was asked to follow up with
him in three or four weeks. She next saw Dr. Murphy on May 30, 2008. The
plaintiff attended for five physiotherapy treatments between the later part of
November and December 6, 2007. The plaintiff had a further appointment on
December 11 but cancelled that appointment, informing her physiotherapist that
she could not afford to pay for further treatments. The physiotherapist spoke
with the plaintiff’s adjuster at the Insurance Corporation and the later
authorized 12 more physiotherapy treatments. Two further appointments were made
with the physiotherapist, for December 7 and December 28, 2007. The plaintiff
did not appear for those appointments; she testified that she could not
remember that any appointments on those days had been made for her.

[76]        
These things reveal either a certain lack of
concern on the plaintiff’s part about her role in her own recovery or that her
injuries were not particularly bothersome.

[77]        
Turning to the specific treatments said to
establish a failure to mitigate, I will deal first with the question of
medication. The plaintiff was first prescribed a muscle relaxant at the walk‑clinic
on November 13, 2007, specifically Robaxical. She filled that
prescription at a cost of $7.56. On January 7, 2008 Dr. Murphy prescribed
the anti-inflammatory Meloxicam and a muscle relaxant, Flexoril. The latter
medication was to be taken three times a day, as needed; the former was to be
taken once a day, for a month. When the plaintiff next saw Dr. Murphy on
May 30, 2008 she told him that although she had had the prescription filled,
she had not taken the anti-inflammatory because she was concerned about side effects.
Dr. Murphy changed her medication. He prescribed Amitriptyline and advised
her to take one pill (10 mg) every night for a month. The plaintiff had
that prescription filled and when she next saw Dr. Murphy on June 27 she
advised him that she had been taking the medication, albeit only intermittently
or periodically. He renewed her prescription for a further three months. On
September 12 when Dr. Murphy next saw the plaintiff she told him she had
not taken any more Amitriptyline because she had lost the prescription he had
given her on the last visit. He gave her another prescription. There is no
claim for the cost of filling that prescription, if indeed it was filled. I
note in passing that the cost of filling the anti-inflammatory and muscle
relaxant prescriptions in January 2008 was, in total, $14.50. The plaintiff
testified that she could not remember if she took the anti-inflammatories that
had been prescribed in January 2008. She said, however, that she learned of the
side effects when she read the printout given to her by the dispensing
pharmacist. She agreed that she did not return to Dr. Murphy or seek any
other advice as to possible alternative medications, or whether the potential
side effects were a matter about which she should reasonably be concerned.

[78]        
As to the Amitriptyline, the plaintiff did not take this drug as
prescribed. Dr. Murphy had explained the appropriate course to be followed
and the prescription itself came with that same advice. The plaintiff took them
only when she had a headache. When Dr. Murphy learned of that and
corrected the method on the June 27, 2008 visit, the plaintiff did not fill the
prescription because she still had a quantity of pills from the prescription
that had been provided to her at the end of the previous month. She testified
she took those pills for some unspecified period following her June 27 visit.
When she next returned to see Dr. Murphy on September 12, she had not
filled the prescription he gave her on June 27, telling him that she had lost
it. He therefore gave her another prescription which she did fil,l and took
throughout the fall of 2008. She explained to Ms. Chittenden in November
2008 that she found her pain was reduced with, among other things, Amitriptyline.
When she next saw Ms. Chittenden on February 25, 2009 she told her that
she had stopped taking the Amitriptyline on December 17, on her doctor’s
instructions. There is no evidence from any doctor that she was instructed to
stop taking the medication. On examination for discovery the plaintiff testified
that her doctor had not instructed her to stop taking the medication and she
denied telling Ms. Chittenden that. At trial the plaintiff said it was her
decision to stop taking the medication. As I understand her evidence, she was
concerned about the possibility of becoming addicted to the drug. Again, if
that was her concern, she did not ask Dr. Murphy or any other doctor about
it.

[79]        
In her April 2009 report, Dr. Apel agreed with Dr. Murphy’s suggestion
that the plaintiff take Amitriptyline. She noted that if the plaintiff was
experiencing side effects from that medication, she might consider substituting
Nortriptyline, a relatively inexpensive similar medication. Dr. Apel set
out in her report how the medication should be taken, and over what period of
time. In her September 2010 report Dr. Apel repeated her recommendation
that the plaintiff try a course of Nortriptyline. The plaintiff did not provide
either of Dr. Apel’s reports to any of her health care providers, nor did
she seek a prescription for Nortriptyline.

[80]        
The final aspect of the medication regime relevant to this matter is the
plaintiff’s consumption of over-the-counter analgesics such as Tylenol and
Ibuprophen. Dr. Apel had given the plaintiff specific instructions to
limit her consumption of those medications to no more than ten days a month.
She did not follow that advice.

[81]        
The plaintiff argues that there is no evidence that taking the
medication would have reduced or eliminated the effects of her injuries. In
that regard counsel points to the reference in Dr. Murphy’s report that the
plaintiff should “try massage therapy and other modalities to see if that can help”.
In his evidence, Dr. Murphy said that he prescribed the medication in
order to moderate her complaints and “aid in recovery”. This evidence satisfies
me that it was more likely than not that the medication would have assisted in
reducing the plaintiff’s symptoms. There is, however, direct evidence on the
point. The plaintiff told Ms. Chittenden that her pain was reduced when
she took Amitriptyline. Further, she told Ms. Chittenden that after she
stopped taking that medication she noticed an increase in her symptoms.

[82]        
The real issue in relation to medication is whether the plaintiff’s
failure to follow the advice given to her by Dr. Murphy and Dr. Apel
was reasonable, having regard to her circumstances at the time. The plaintiff
expressed concern about side effects, and particularly whether she would become
dependent on the Amitriptyline. I digress to note that the plaintiff’s erratic
consumption of the drug after it was first prescribed is not a matter I
consider relevant to the issue of mitigation. I accept that there was an honest
misunderstanding as between her and Dr. Murphy has to how she should take
the medicine. I do not accept that Dr. Murphy told her she should begin
weaning herself from the medication at any particular time. Rather, I accept
that he may have told her that when she wished to stop taking the medication
she would have to reduce her consumption gradually over time. It was, as the
plaintiff testified, her decision to stop taking the medicine when she did.
Given that it was providing her with relief and not otherwise giving rise to
any side effects, I think it was unreasonable of her to stop taking the medicine.

[83]        
The next treatment modality is physiotherapy. As noted, the plaintiff
took five physiotherapy treatments. She testified that those treatments did not
provide her with any relief. When she explained that to Dr. Murphy, he
recommended that the she try a different physiotherapist. She did not take him
up on that suggestion. I recognize that she was in difficult economic
circumstances, but she was approved for 12 further treatments. Although she
said she cannot now recall being told that, I am satisfied she was.

[84]        
Although I accept that the plaintiff did not realize any particular
benefit from the physiotherapy sessions she attended, I am not persuaded that
her failure to submit to further treatments was reasonable. Her doctor
suggested she try a different physiotherapist, presumably on the basis that
different therapists employ different techniques. She did not follow that
advice.

[85]        
The final aspect of the mitigation puzzle relates to exercise and
stretching. The plaintiff was referred to Ms. Chittenden for the purpose
of assessing her physical condition and establishing, over the course of four
to six sessions, an exercise and stretching program intended to increase her
functionality and perhaps alleviate her symptomology. Ms. Chittenden
designed a stretching program which she recommended the plaintiff follow two to
three times a day for a period of two months. She recommended the plaintiff
stretch when she get up in the morning, again while at work, and finally at
home after work. Ms. Chittenden also recommended that the plaintiff
participate in the strengthening program involving exercises three times a
week. Over the course of her involvement with the plaintiff, she provided her
with printed instructions including illustrations of the various exercises she
had demonstrated for her and asked her to perform. In addition, she provided an
exercise log in which those exercises were diagramed in an elementary way and
in which she set out the frequency of the activity. Ms. Chittenden
monitored the plaintiff’s progress and noted that in the following two months
she had gained some improvement in her core strength. She concluded that the
plaintiff:

…was a dedicated client who made
some improvements. I expect that she will make more improvements with regular
stretching and strengthening once she has completed her move.

[86]        
The plaintiff testified that she could do one of the exercises for her
shoulders, but could not do many of the others. She testified that she found
the exercises prescribed for core strengthening unnecessary in that they did
not appear to relate to her neck and shoulder area which was where she was
experiencing discomfort. The plaintiff said she continued to do some of the
stretching, but did not do it regularly or to the degree that Ms. Chittenden
had instructed her. As I understood her evidence, the extent of the stretching,
and the exercise she was doing, consisted of brief isometric stretches done
while in or on the bed in the morning. By September 2010 she was not even doing
that.

[87]        
It was not reasonable for the plaintiff not to follow the stretching and
exercise program that Ms. Chittenden had developed specifically for her.

[88]        
The next issue is whether following that program would have reduced or
eliminated the effect of the plaintiff’s injuries. Some of the stretches and
core exercises that Ms. Chittenden prescribed would, I am satisfied, have
either improved the plaintiff’s functionality or reduced her symptomology or
both. Others would not have had that effect. Dr. Apel was critical of some
of the stretching and exercises that Ms. Chittenden had prescribed. She
found that some of the exercises, if done in the postures that were recommended,
would likely have aggravated the plaintiff’s symptoms. Thus, the failure to
follow Ms. Chittenden’s recommendations for stretching and exercise are
not a basis to reduce any award of damages for failure to mitigate.

[89]        
Dr. Apel did, however, strongly recommend in her first report that
the plaintiff establish an exercise and stretching program. She recommended
that she stretch at least three, but preferably five, times a day, particularly
during periods of heightened physical activity. She provided detailed
recommendations for such exercises and recommended that the plaintiff
incorporate some cardiovascular activity into her routine. She recommended a
referral to a kinesiologist for the implementation of her recommendations.
Sixteen months later when Dr. Apel saw the plaintiff again, she noted that
the plaintiff had not followed any of her recommendations. She noted that the
plaintiff had explained that her financial circumstances were limiting her
ability to pursue those recommendations. Dr. Apel noted that many of the
recommendations for active rehabilitation could be done at home and would
require no significant financial commitment other than the cost of engaging the
kinesiologist.

[90]        
The next issue is whether pursuing an exercise and stretching program
such as Dr. Apel recommended would have reduced or eliminated the effect
of her injuries. The plaintiff argues that Dr. Apel’s evidence was
equivocal on this point. She was asked:

Q:        … And it certainly would have reduced the
effect of the injuries; is that fair?

A:         It should have —
performed correctly and taught correctly, it should have reduced the amount of
discomfort she had.

Counsel for the plaintiff emphasizes the word “should”
in the foregoing answer. This evidence satisfies me that it is more likely than
not that had the plaintiff followed the exercise and stretching regime
recommended by Dr. Apel she would have experienced a reduction in her
symptomology and an increase in her functionality.

[91]        
The next issue is whether the plaintiff’s failure to follow these recommendations
was reasonable, having regard to her circumstances. I note firstly that there
was no medical reason for her not to pursue such a program. She maintains that
she did not implement the recommendations for economic reasons. She said she
simply could not afford it. I do not accept that explanation. First, by
September 2008 the plaintiff was a permanent part-time employee. She had health
benefits available to her through her employment. There is no evidence she even
inquired about whether they would cover the cost of such a program. Second, the
Insurance Corporation had paid for, and instigated, the assessment and exercise
program that Ms. Crittenden developed. There is no evidence that they were
asked to assist in a further program and refused. Finally, the plaintiff did
not implement and follow the exercise and stretching regime that Ms. Chittenden
established for her. It may well be that some of those exercises were unlikely
to assist her, and indeed some may have given rise to further difficulties. The
plaintiff did not know that, however. She simply did not implement the program.
Her failure to do so is consistent with the other aspects of her approach to
her recovery, including electing to discontinue further physiotherapy and not
following up with her doctor as she had been requested to do.

[92]        
I am satisfied that the defendant has proven a failure to mitigate on
the part of the plaintiff. That failure consists of her failure to take the
medication that had been recommended, and more importantly her failure to
stretch and exercise as she had been repeatedly advised to do.

[93]        
The issue that remains is the extent to which her damages should be
reduced as a result of her failure to mitigate. In my view, taking the
medication she had been prescribed would have resulted in a modest amelioration
of her symptoms. The stretching and exercise would, I am satisfied, likely have
given rise to a more significant benefit, albeit one that would have been
realized only after Dr. Apel’s first assessment in April 2009 and then
only after the program had been followed for some time. Taking all of this into
account, I find that her non‑pecuniary damages should be reduced by 30%.

Conclusion

[94]        
In summary, the plaintiff is entitled to non‑pecuniary damages of
$30,000 less 30% for her failure to mitigate. She is entitled to judgment in
the sum of $21,000. She is entitled to special damages of $97.06. The plaintiff
is also entitled to pre‑judgment interest at the prevailing rates. The
parties are at liberty to speak to the issue of costs if they are unable to
agree.

“”G.M.
Barrow J.”
The Honourable Mr. Justice Barrow