IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130319

Docket: M118252

Registry:
New Westminster

Between:

Erika J. De Vries

Plaintiff

And

Richard A. Poltorak
and MGA Italstone Ltd.

Defendants

 ‑ and ‑

Docket: M125179

Registry:
New Westminster

Between:

Erika J. De Vries

Plaintiff

And

Insurance
Corporation of British Columbia,
John Doe 1 and/or Jane Doe 1 and John Doe 2 and/or Jane Doe 2

Defendants

Before:
The Honourable Mr. Justice Blok

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff was injured in two car accidents, one
in March 2007 and the other in February 2008.  In each accident the plaintiff’s
vehicle was struck from the rear.  The first accident was more serious and
involved substantial damage to the plaintiff’s car.  The second accident was
far less substantial, but it exacerbated the plaintiff’s symptoms.

[2]            
Liability is not in issue in either action.  The second accident was a
hit and run accident, but the parties agree that the plaintiff has complied
fully with the requirements of s. 24 of the Insurance (Vehicle) Act.

[3]            
Damages are agreed on income loss and special damages, and thus the
issues before the court are non‑pecuniary damages, damages for loss of
future earning capacity, and cost of future care.

I.                
Evidence

A.             
Erika De Vries

[4]            
Ms. De Vries, now 28, is currently completing her studies as a
bachelor of science nursing student at Kwantlen Polytechnic University.  She is
engaged to be married to an Oregon man, a scuba instructor, the marriage date
being set for August 2013.

[5]            
The first accident occurred on March 13, 2007, when the plaintiff was 22
years old.  Ms. De Vries was travelling eastbound on Highway 1 near the Willingdon
Road exit, driving home from her work in North Vancouver.  Her line of traffic
slowed and she came to a controlled stop, but the vehicle behind her came up
quickly and struck her from behind.  Her vehicle was pushed into the car ahead,
and that car in turn was pushed into the car in front of it, and thus four cars
were involved in this chain collision.  The vehicle that hit her was a van. 
Her vehicle was a 2002 Honda Civic.

[6]            
Her vehicle suffered extensive damage.  It was bent in at the rear, in
the trunk area, including the frame and bed of the trunk, and there was rear
bumper damage.  The front of the car had damage to the hood, which was
crumpled, and the radiator and headlights were smashed in.  Repairs were
estimated at about $9,900.

[7]            
Ms. De Vries said that, as a result of the collision, she felt her
neck snap back and forth, her whole body tensed, she felt a sharp pain in her
right wrist where she was holding the steering wheel, and one of her knees hit
something and was bruised.  She felt soreness and stiffness in her back,
shoulders, and ribs.

[8]            
She was left stunned and in shock as a result of the accident but,
serendipitously, she was spotted by a work colleague driving by, who stopped to
assist.  An ambulance arrived and paramedics assessed her head, neck, and back,
but she declined transfer to a hospital.  Instead, she had her colleague give
her a ride home.  At home, she applied ice to her back and neck and rested on
the couch.

[9]            
In the day or two after the accident, her main complaint was pain in her
back and neck.  She also had some pain in her right shoulder, ribs, wrist,
hips, and knee.  She said her back was extremely sore, with shooting pain out
to her limbs.  Her back was very tender and sore to touch.  She said that the
pain was all through her back, from her upper back to her lower back and all
the way across.  Her doctor observed visible spinal scoliosis on the right side
due to muscle spasms.  She also experienced headaches.

[10]        
In the two or three weeks following this accident, she took a few days
off work and received some physiotherapy treatment after referral from her
physician.  She took physiotherapy every two or three days during that time.

[11]        
Ms. De Vries said that she experienced a lot of pain and discomfort
and tried to get relief using heating pads, medication (including Tylenol 3s)
and resting a lot.

[12]        
Although Mr. De Vries returned to work relatively promptly, she
said that she was young and naïve and pushed herself unreasonably to go back to
work.  She worked at an Intrawest Resorts call centre.  She took half days off
and while at work took breaks to walk around and loosen up.  She said her
employer was very accommodating.

[13]        
One month after the accident, her injuries were still quite pronounced. 
Her spine had moved back to normal and her muscles were not as inflamed.  She
said she still had pronounced symptoms in her lower back, as well as some
continuing symptoms in her neck and other areas of her back.  Mostly her
difficulties centred on her lower back.  These symptoms caused her trouble
sleeping, she had intense pain when she lay down in bed, and she needed
medication to deal with it.  Ms. De Vries also said that she had anxiety
about driving, as well as some elements of depression, insofar as she was upset
that she could not do what she wanted.

[14]        
Three months after the accident the symptoms in her upper back, neck,
shoulders, and ribs had resolved more, but she was still experiencing daily
pain in her back, mostly her low back.  Occasionally the pain was also located
in her upper and mid back.

[15]        
At this point, she had more normal activity at work, but still
experienced problems sleeping and still experienced anxiety.  She did not do
any physical activities for some time, because she was “too scared and too sore”. 
She stopped all of these activities, except for some mild stretching.

[16]        
Her pre‑accident activities included snowboarding, dancing, bike
riding, running and jogging, and doing anything outdoors.

[17]        
Ms. De Vries described her physical state from a period three
months after the first accident until the time of the second accident on
February 27, 2008.  She said during this time she made slow progress, no longer
taking Tylenol 3 or other prescription medication, but still taking over‑the‑counter
pain medication.  She used a lot of heat wraps for her low back and was still
getting physiotherapy treatments.  By this point she could do some physical
activities, such as “little jogs” as a running activity, or walks.  She found
her activities to be a bit restricted because she was worried about re-injury. 
For that reason, she restricted herself to light duties at home because, for
example, even bending down to load a dishwasher might prompt a “tweak” in her
back and she would stop that activity at once.

[18]        
Ms. De Vries said that she still has a fear of re-injury.

[19]        
At a point just prior to the second car accident, Ms. De Vries said
that she felt that she was “at a plateau” and that the acute phase was over. 
She felt that her “baseline” was having to live with back pain on a daily
basis.

[20]        
The second car accident of February 27, 2008 was another rear‑end
accident.  She had stopped for a pedestrian and the car behind her hit her car “pretty
hard”.  Ms. De Vries’s car was pushed forward and to the right (as she was
in the course of a turn) as a result of the impact.  The other driver did not
stay at the scene.

[21]        
The impact caused about $1,100 worth of damage to her car, consisting of
a scrape on her rear bumper and with the side of the bumper being popped out.

[22]        
Ms. De Vries said that she felt the same whiplash feeling in her
neck and upper back.  She instantly felt pain in her low back, the same pain as
before.  Her neck snapped back and forth, and this made her neck very painful
again.

[23]        
Ms. De Vries said that one month after the second car accident she
had again plateaued and returned to her pre second car accident condition, in
that she had daily back pain, took over-the-counter medications, and needed to
take the same precautions.

[24]        
Asked about the process of recovery since then, Ms. De Vries said
that it has been very slow and there has not been much change.  Some days are
better than others.  She said that she has back pain on a daily basis.  She has
started to run again and on some days it is fine, but on other days it leaves
her on the couch afterwards with a heating pad.  She did do some additional
physiotherapy after the second car accident, consisting of core strengthening
and stretching exercises.

[25]        
Ms. De Vries said that she has been involved in two other minor
accidents, one in 2009 and one in 2012, but these were of an extremely minor
nature.  Defence counsel made nothing of these and I conclude that they are
inconsequential in the scheme of things.

[26]        
Asked about her present status, Ms. De Vries said that her symptoms
are getting worse, because she has started her practicum work as a student
nurse.  She still has daily back pain, and a number of times a day she has to
take time to stretch her back.  She feels a “compression” in her low back and
this prompts her to do some stretches.

[27]        
I digress for a moment to discuss some of Ms. De Vries’s
educational and employment background.  Ms. De Vries graduated from high
school in 2003.  She had various jobs after graduation, but in 2006 she
resolved to pursue a nursing career.  At that point, she took upgrades in math
and sciences and then embarked on a four-year degree program in nursing.  She
is now in her final semester and will finish in April 2013.  Her grades have
been at an “A” standard throughout.

[28]        
Currently she is in a preceptorship, which means accompanying a nurse on
a one‑to‑one basis and doing all the same duties as a registered
nurse with only limited exceptions.  After completing their practicums student
nurses will get provisional registration with the College of Registered Nurses,
and then they will have to write the Canadian exam.  Ms. De Vries said
that she will write this exam on June 5.  If she passes, she will get an RN
designation.  She can, however, work under her provisional designation until
those results are known.

[29]        
Ms. De Vries said that she is scientifically-minded and wants to
work in an operating room, in pre- or post-operative care, or anaesthesia.

[30]        
Ms. De Vries described the duties of an operating room nurse.  Some
of the activities involve movements which could affect her back.  Nurses have
to wheel the patient from the OR admitting desk to the operating room, where
the operation will take place, and the beds are heavy.  Ms. De Vries said
that she has trouble if the bed veers off centre and she has to correct it. 
Also, where the patient cannot transfer onto the OR bed, the OR team effects a
transfer using a slider sheet, but she tries to stay at the patient’s feet so
that she bears a reduced load.  During the operation itself, there is a lot of
standing and for the circulating nurse there is a lot of back‑and‑forth
movement.  For the scrub or sterile nurse, there is also a lot of standing, holding
such things as retractors and leaning over the patient.

[31]        
Although most hospitals now have a “no‑lift” policy, nurses still
have to assist, they have to be able to boost up bedridden patients at times
and they are on their feet a lot.

[32]        
The shifts at the hospital where she is doing her preceptorship, Surrey
Memorial Hospital, are eight hours in length.  Officially they are supposed to
have two 15-minute breaks, as well as a 30-minute lunch break, but sometimes it
will be three or four hours before they get a break.

[33]        
When asked to compare herself to other nurses or nursing students, Ms. De Vries
said that she compares academically very well, but for her clinical practice
she said she has noticed a difference, because other nursing students do not
have to think before bending or helping a patient, and she pauses to think
about the possible effect of that activity on her back.  Also, Ms. De Vries
said that nurses work as a team in the operating room and she feels she cannot
fully reciprocate the help that everyone is expected to provide, the slider
sheet patient transfer being one example of that.  She says that she finds this
tough, because she does not want to be looked down on by the experienced
nurses, and in this regard she noted a saying that "nurses eat their
young", indicating that there is little tolerance for a new nurse who
cannot pull her weight.

[34]        
Again comparing herself to others, Ms. De Vries said that
during her clinical practice she finds that she has to stop doing what she is
doing and sit or stretch out during the course of her shifts.

[35]        
As a result of all of these things, she feels less valuable and feels 20
years older than her actual age.

[36]        
Ms. De Vries testified about her career plans.  She said she
wants to take a speciality OR course, but thought she would probably first get
some experience on a lighter-duty ward.  Her fiancé lives in Oregon and it
appears most likely that she will settle there in the longer term.  For the
moment, however, she plans to write the required nursing exam in British
Columbia, obtain her qualifications, and work for a time up to her wedding
date, and if she then moves to Oregon she will write the U.S. licensure exam
and qualify for practice in Oregon.

[37]        
In B.C., the last collective agreement for nurses provided for a
starting salary of $30.79 an hour, although there is a new collective agreement
recently put in place.  This hourly rate also does not include shift premiums
or holiday premiums, which can add substantially to that hourly rate.

[38]        
Ms. De Vries said that she did not think that she would apply
for full-time work because she did not think that she was physically up to it. 
She expected that she would work up to 75 percent of full-time work at most.  Ms. De Vries
said that but for the motor vehicle accident, she had intended to work full-time
as a registered nurse.

[39]        
Ms. De Vries agreed that employers provide aspects of
workplace accommodation for such situations as pregnancy, but she did not want
to ask for accommodations as a new nurse in a workplace.

[40]        
Ms. De Vries has worked throughout her nursing studies, at
least until very recently.  She worked at a call centre 20 hours per week until
early December 2012, when her school demands became too much.  The call centre
job involved a lot of sitting.

[41]        
The situation with her back at present causes her obvious stress and
anxiety.  She fears that she cannot do the job that she has always wanted to do,
that of an operating room nurse.  She said she came back crying after her third
practicum shift because she had difficulty even pushing a bed.  She said it
upsets her when her classmates progress because she does not know how much of
the nursing duties that she can actually handle.

[42]        
Ms. De Vries said that she pushes through the pain on a daily
basis and takes the over-the-counter pain medication fairly often, and as well
uses a heating pad a lot.   She said the pain is consistent throughout the day
on some days, but on other days she is just stiff and sore in the mornings. 
She finds that if she does something repetitive it bothers her back, such as
sitting or even walking at a shopping mall.  Ms. De Vries said that
her injuries have been stable for the last three or four years, but they have
become worse in the last year as she does more hospital shifts.

[43]        
As for any current exercise or physiotherapy program, Ms. De Vries
said that she does this on her own.  She said she tries to jog or run and she
does a lot of stretching and core strengthening.  She will do an occasional
easy hike.  She does not snowboard and only went once last season.

[44]        
Dr. Bohorquez, the physiatrist, recommended massage therapy and
core strengthening and suggested a personal trainer, but she could not afford
the cost of a personal trainer, which is $400 per month.  Similarly with
massage therapy, which is $80 a session and she could not afford that either.

[45]        
Ms. De Vries said that her current main hobby is scuba diving,
which follows from her fiancé’s interest and his expertise as an instructor in
that area.  She said that she likes all kinds of outdoor activities, as well as
movies, music, socializing, and time with friends.

[46]        
As for scuba diving, she started in April 2012 with an initial pool
session and took classes in June 2012.  She has now been diving 38 times and enjoys
the sport very much.  She has discussed with her fiancé accommodations for her
back problems, such as using aluminum instead of steel tanks or using smaller-sized
tanks, and her fiancé helps her by lifting the tank onto her shoulders so that
she does no lifting herself.  Ms. De Vries said that scuba diving is
the one thing she does that is painless and she finds it spiritually,
psychologically and physically fulfilling.

[47]        
In cross-examination, Ms. De Vries said that she disagreed
with the 2009 report of her family physician, Dr. Hartwig, in that she
felt that it was unfairly optimistic.  She said that she had only just started
nursing school that year and did not consider that his assumption that she
would have no sequelae was a fair one.

[48]        
She agreed that she only missed one university lab session and that she
took very little time off work.  She again explained that she was young, did
not know any better and thought she should push through her difficulties.

[49]        
Ms. De Vries said that, on a scale of one to 10, her pain in
the first month was 10 out of 10, and in fact on one occasion she called the
nurses’ information line because she was in so much pain.  The least amount of
pain that month was a five or six out of 10.  She agreed that she has told the
doctor that her pain is as low as two out of 10 and as high as eight out of 10,
but said that even now she has times where her pain is again 10 out of 10.

[50]        
Ms. De Vries agreed that as of November 2011 she was working
20 hours a week at the call centre, although there is a discrepancy in my notes
between 2011 and 2012.  Nothing turns on the exact year in any event.  The
evidence is that she was working full-time at the call centre but moved to part-time,
20 hours per week, in 2008.  On top of that, she took classes three days a week
plus an eight-hour clinical day, so she had nursing studies four days a week in
addition to her part-time work.

[51]        
She agreed that she does stretching when needed, occasional hikes, and
neighbourhood walks, although she said she does feel it in her back when she
gets home.

[52]        
Ms. De Vries was referred to various entries in a diary she
kept after the first accident, which showed her work hours and social schedule,
as well as times of pain and discomfort.  On March 20, 2007, for example, which
was one week after the first accident, her diary shows that she finished work
at 7:00 p.m., drove home (that drive was 45 minutes to an hour in peak times),
had dinner, went to coffee with a friend at 9:00 p.m., and visited another
friend at 11:00 p.m.

[53]        
Ms. De Vries said that she had three to five practicums a year
during her nursing training and some were 12-hour shifts.  She said that she
was able to do the 12‑hour shifts by pushing through.  She agreed that
she has never had any functional capacity evaluation.

[54]        
Asked about the other problem areas, Ms. De Vries said that
her wrist pain resolved within a month, the knee problem was just a small
bruise and was not significant, and her neck was really stiff and sore for one
month.  She still gets neck stiffness a few times each month, but since
commencing her work at the hospital it happens two times a week.

[55]        
She agreed that she had 15 physiotherapy treatments ending in June 2007,
and 14 more physiotherapy treatments after the 2008 motor vehicle accident. 
She felt improvement in the first six months after the first car accident,
saying that this was when she had the best progress, although she agreed that
this was at a time that she continued to work full-time at the call centre and
was sitting eight hours a day.  She explained that, at that job, she had the
flexibility to get up and walk around when she needed to.

[56]        
Ms. De Vries has lived with her parents for the last six
years.  Asked if they would have covered any necessary treatments, she said
that she did not like to borrow money from them.  She paid rent during the
times that she was working.  In the year of the accident, she had an income of
$35,000, but when it was suggested to her that she could have paid for any
needed therapy, she said that she was not sure that therapy had been
recommended at that time and so she did exercises on her own.

B.             
Dr. Hartwig

[57]        
Dr. Hartwig has been the plaintiff’s primary physician from the
time of the first car accident.  He said that she presented with symptoms of
neck pain, upper back pain, and shoulder pain.  On examination, he found that
on palpation her neck was tender, more so on the right, with tenderness,
tightness, and spasm in her back, more on the lower back, and he noted a
scoliosis in her spine.

[58]        
Dr. Hartwig did not see Ms. De Vries on every attendance
at his clinic because some were handled by his colleagues.  His first
examination of Ms. De Vries took place on March 22, 2007.  At that
time, she had back and neck pain throughout, every once in a while, and there
had been a spasm between her shoulder blades, lasting 15 minutes, three days
prior to the visit.  Dr. Hartwig said that he could feel the muscle spasm
above the shoulder blade.

[59]        
On March 18, 2009, he noted "episodic left side low back pain"
and that Ms. De Vries was taking Advil on a monthly basis.  She was
experiencing pain when lying on her back in bed.  She had started core
stabilization exercises.

[60]        
Although he wrote in his 2009 report that he did not expect any sequelae
unless there was another car accident, at trial Dr. Hartwig said that since
Ms. De Vries is still having pain he would now modify his earlier opinion.

C.             
Dr. Bohorquez

[61]        
Dr. Bohorquez is a specialist in physical medicine and
rehabilitation.  He saw Ms. De Vries on November 10, 2011, on
referral from Dr. Hartwig.  He diagnosed mechanical low back pain originating
from the joints in the spine, plus myofascial pain.  He did not consider that
she was exaggerating.  He recommended core strengthening in order to stabilize
the spine, to build muscle, and ultimately reduce pain.  He suggested an
aggressive program from a sports physiotherapist who would guide her with an
active program, lasting at least five sessions.

[62]        
As to her prognosis, while Dr. Bohorquez felt her prognosis was
good, though "recovery" depended on the definition of that term.  He
expected that she would be able to pursue all activities of daily living
without significant problems.  However, he said the odds of her being fully
pain‑free are low.  She would manage, but she would have some pain.  He
agreed that she would fit the definition for chronic pain insofar as the pain
has lasted for more than three months.

[63]        
Dr. Bohorquez is aware that Ms. De Vries wants to be an
operating room nurse.  He expressed concerns about this goal because it requires
long periods of standing upright as well as patient transfers.  As a result, he
has some reservations for the future, being the potential for re-injury or the
exacerbation of her symptoms.  When asked if he was concerned that her injuries
might worsen, he said it was hard to say, but said his concern was more that
there might be incidents that would reinjure her back; for example, a sudden
move on her part to prevent a patient from falling.  He said that this type of
thing occasionally happens in hospitals, despite the best policies and
planning.

[64]        
Dr. Bohorquez has no particular concerns about her scuba diving
activities, saying that his recommendation is that patients be as active as
possible, and he would rather they did that than be sedentary.

[65]        
In cross-examination, Dr. Bohorquez was asked about Ms. De Vries’
evidence that her pain was two out of 10 daily, but twice a day it went to
eight out of 10.  He said that sometimes this happens because the nervous
system gets “ramped up”.  He said this sort of situation was not unusual and
that he had seen it before.  Asked if it was unusual to have constant pain now,
yet that pain had been intermittent in the first year after the car accident,
he again said that sometimes the nervous system gets “ramped up” and the pain
signals get amplified.

D.             
Defence Evidence

[66]        
The defendants called no evidence.

II.              
Positions of the Parties

A.             
The Plaintiff

[67]        
Counsel for the plaintiff noted that formerly episodic pain is now
chronic with regular flare-ups.  Counsel submitted that non‑pecuniary
damages should be assessed in the amount of $70,000.  Cost of future care ought
to be assessed at $5,000, made up as follows: a core strengthening program ($80
a session for five sessions, $400 in total); a gym membership ($45 a month or
$540 a year); massage therapy ($80 per session, two sessions per month, for two
years, totalling $3,840); and over‑the‑counter medication and hot
pads ($100), for a total of $4,880.

[68]        
As for loss of earning capacity, counsel went through the legal test and
emphasized the cautionary remarks of Dr. Bohorquez about future nursing work. 
Counsel submitted that this claim was not based merely on the plaintiff’s subjective
fear, but was based more on her actual experience that showed her to be at risk
for loss of future income.  Counsel agreed that the capital asset approach was
the appropriate assessment approach, though he also noted that on an income
basis, Ms. De Vries would lose $465,000 over her lifetime, presuming
that she only worked 75 percent instead of 100 percent of the time as a result
of her accident injuries.  He went through the various factors as set out in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353, and suggested an award of $80,000.

B.             
The Defence

[69]        
Defence counsel suggested an award for non‑pecuniary damages of
$30,000.  He submitted that a basis for future loss of earnings was not made
out, and neither was a basis for any cost of care award.  He said that it would
assist the defendants if the award were to be divided between the two actions,
and suggested something in the range of 80 to 85 percent to the first accident,
and 20 to 15 percent to the second, as being an appropriate apportionment.

III.            
Discussion

[70]        
There was no real dispute between the parties as to the difficulties
suffered by the plaintiff in the first number of months following each car
accident.  The difference lies in the severity of the injuries and symptoms
beyond those times, and the implications for the future.

[71]        
On the evidence, I am satisfied that the plaintiff suffered mild to
moderate, perhaps closer to moderate, injuries to her neck and back with some
symptoms, as well, in her ribs, hips, and right shoulder, and with minor
injuries to her wrist and knee.  The symptoms in her neck and back,
particularly her lower back, were significant for the first two or three months
after the accident.  She had difficulty with sleeping and was also anxious
about driving.  She took Tylenol 3 medication for pain relief.  She lost
minimal time from work at a call centre by pushing through her physical
problems, something she now believes was unwise.  She curtailed all physical
activities during this time.  She had 15 physiotherapy treatments between March
15, 2007, and May 8, 2007.

[72]        
From approximately July 2007 to the date of the second car accident in
late February 2008, her condition had improved such that she had resumed light
physical activity and no longer required prescription pain medication or
physiotherapy, although she was still protective of her back.  The second
accident was much more minor than the first, but it caused a recurrence of her
former, more severe symptoms.  Again, she underwent physiotherapy, this time 14
sessions in all.  One month after the accident, she returned to her pre second
accident condition.

[73]        
The difficulty in this case arises from the fact that it is now six
years after the first accident and the plaintiff still has problems with her
back.

[74]        
The defence emphasized the following five points:

a)   
the 2009 report of her GP, Dr. Hartwig, where he said:

I do not expect any sequelae from the MVA‑related
injuries at this point, unless she is in yet another MVA in the next few months
in which case her recovery from the next would likely be slowed.  It is very
unlikely that her long term personal life, employment, present and future
employment opportunities, or recreational activities will be affected by these
MVAs in any great fashion.  It is unlikely that she will require surgery for
her injuries.

b)    the plaintiff lost
very little time from work;

c)     she was
able to drive long distances, for example, to Oregon, to drive lengthy commutes
to work, and to engage in jogging and scuba diving;

d)    she was able to
both work and attend university, where she was an A student; and

e)    she has
successfully carried out all of her nursing duties, including 12-hour shifts.

[75]        
Plaintiff’s counsel emphasized the long duration of the plaintiff’s
symptoms amounting now to chronic pain.  He submitted that the plaintiff is
partially disabled.

[76]        
As is perhaps understandable, I find the proper characterization of Ms. De Vries’s
situation to be somewhere between those two portrayals.  Although I am
satisfied that Ms. De Vries suffers some pain and discomfort on a
daily or weekly basis, I conclude that her actual activities were and are at
least somewhat greater than one would expect with a person who described her
pain in the way she did.  An example of that was the description of some of her
activities a week after the first car accident, which seemed inconsistent with
her description of pain as being between five to six out of 10 and 10 out of 10
for that entire month.  She was able to manage 12-hour nursing shifts, though
not without some discomfort, either during or afterward.  She was able to
engage in running, at least to a light extent, and to enjoy scuba diving.

[77]        
I fully accept that she takes precautions with her scuba diving and
other activities, that she does the same with her nursing activities, and that
she is cautious and worried about her nursing duties.

[78]        
I also wish to make it clear that I do not consider that Ms. De Vries
was exaggerating her symptoms in any sort of deliberate way, as I found her to
be a credible and sincere witness, but my impression is that she is a somewhat
anxious individual, and her anxieties may well influence her perceptions.

[79]        
There is no doubt that Ms. De Vries still deals with some pain
and discomfort on a regular basis, and that she restricts her activities
somewhat as a result, whether because of back pain or due to a concern that an
activity will cause back pain.  The back pain has not interfered with either
her studies or her work, although again she is cautious about her activities
and rests or stretches when needed.

[80]        
I conclude that the best evidence concerning her prognosis is found in
the January 2012 report of Dr. Bohorquez, where he said the following:

The prognosis for this lady’s current symptoms is overall
good.  I suspect she will be able to live a fairly normal life.  I am, however,
concerned about her future as a nurse.  She told me during my assessment that
she wishes to be an operating room nurse and this requires a lot of physical
demands.  She is young and tolerating her current training.  When she starts
practicing however, her physical demands will increase and she could have pain
flare‑ups related to poor biomechanics of lifting, bending, and twisting.
She may be at higher risk of back pain than the average individual, given
that she is young and having back pain at present.

It is my opinion that Ms. De Vries’ problems are
not permanent.  She may experience intermittent pain flare‑ups due to
poor biomechanics and physical demands of her work as a nurse.  I suspect that
if she is very proactive with a stretching and strengthening program, most of
her symptoms will improve.

As far as recreation and social
activities, this lady has already cut back on some of these enjoyable
activities due to her pain.  There may be some limitations in these activities
because of her current symptoms, but if she tries to be proactive and works on
strengthening and stretching her muscles, as well as improving her core
strength, there may not be as many restrictions on her.

[81]        
I turn now to an assessment of damages.

A.             
Non-Pecuniary Damages

[82]        
Plaintiff’s counsel relied on a number of cases including Andres v.
Leslie & Swackhamer, 2005 BCSC 1096, and Boyle v. Prentice, 2010
BCSC 1212.  In each of those cases, the non‑pecuniary damages award was
$65,000.

[83]        
The defence brief included Boutin v. MacPherson, 2012 BCSC 1814, Heinze
v. Dulay, 2008 BCSC 969, and Edmondson v. Payer, 2011 BCSC 118, where
the awards for non-pecuniary damages ranged from $25,000 to $40,000.

[84]        
It is trite to say that awards for non-pecuniary damages in other cases
can only provide, at best, general guidance concerning the appropriate range.

[85]        
In Boyle, the plaintiff was a 32-year-old substitute teacher
whose low back pain complaints commenced as a result of a 2006 car accident and
continued up until the date of the trial in 2010.  The court found that the
plaintiff had a permanent ongoing low back condition and was not capable of
working full-time at her employment.  The award of non-pecuniary damages was
$65,000.  I find that the Boyle case involved injuries that were more
serious and had greater consequences for the plaintiff in that case than is
present in the case at bar.

[86]        
In contrast to the plaintiff’s situation in Boyle, Dr. Bohorquez
concluded that Ms. De Vries’s problems were not permanent. 
Furthermore, her injuries have not prevented her from working or studying, and
there is no medical evidence that they will do so in future, save for the flare-ups
and related concerns referred to by Dr. Bohorquez in the excerpt from his
report that I have quoted above.

[87]        
Similarly with another case cited by the plaintiff, Andres v. Leslie,
where the court accepted that the plaintiff in that case was unlikely to
improve and thus her back problems were chronic.  Again in that case, the award
for non‑pecuniary damages was $65,000, and again I find that case to
involve injuries that were more serious than those in the present case.

[88]        
Addressing the cases cited by the defence, I conclude that the injuries
suffered by the plaintiff in Boutin v. MacPherson were less serious than
those suffered by Ms. De Vries in this case.  The case of Heinze
v. Dulay I found difficult to compare, because of the many complications in
that plaintiff’s life and the fact that the plaintiff was much older than Ms. De Vries.

[89]        
Perhaps closest of all the cases was Edmondson v. Payer, where a
31-year-old hairdresser and nursing hopeful was awarded non-pecuniary damages
of $40,000 for injuries that are roughly comparable to those in the case at
bar.  It is my impression, however, that the plaintiff’s injuries in Edmondson
were somewhat less serious than those suffered by Ms. De Vries and
from which she may suffer in future.  The award of non‑pecuniary damages
in Edmondson was $40,000.

[90]        
Having considered all of the case authorities, I consider that $45,000
is an appropriate award of non‑pecuniary damages in this case.

B.             
Loss of Earning Capacity

[91]        
The plaintiff referred to Dr. Bohorquez’s concerns about her future
as a nurse, given her stated ambition of being an operating room nurse, the
difficulty she has experienced when moving a wheeled gurney, and her reluctance
to engage in any of the heavier team-assisted lifting.

[92]        
In her evidence, the plaintiff said that her plan is to secure a
position as a registered nurse and to work at a level of 75 percent of full-time
work due to concerns about her back.  Counsel emphasized that the plaintiff is
less capable overall than she otherwise would have been, is less marketable,
has trouble keeping up, requires accommodation in her employment, has lost the
ability to take advantage of all opportunities available, may not be able to
pursue her ambition of being an operating room nurse, and is therefore left
with a lesser sense of self-worth.

[93]        
Defence counsel submitted that no award should be made for loss of
future earning capacity because the plaintiff has, for the last six years,
undertaken all of her duties in both employment and studies without missing any
time, starting from a time that was just a few weeks after her first car
accident.  Counsel submitted that her own perception that she could not work
full-time as a nurse is not supported by the medical evidence or her
demonstrated abilities.

[94]        
On this particular point, I agree largely, though not entirely, with the
submissions of the defendants.  Ms. De Vries’ plan to work as a nurse
at just 75 percent of full-time employment is merely her own self-imposed limit
and is not one grounded in medical or other professional advice.  An award for
loss of future earning capacity cannot be based on that self-imposed limit. 
However, the opinion of Dr. Bohorquez does make it clear that the
plaintiff’s capacity to manage the physical demands of an operating room nurse is
not assured, and I conclude that an award for loss of future earning capacity
should be made to reflect this uncertainty or risk.

[95]        
In Perren v. Lalari, 2010 BCCA 140 [Perren], the court
reviewed various authorities dealing with loss of future earning capacity and
concluded as follows:

[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.

[96]        
In Perren, the plaintiff was employed by the Provincial
Government in a management position.  The trial judge found that, as a result
of the injuries the plaintiff suffered in a car accident, she was not
competitively employable in a position that would require heavy or repetitive
work.  As a result, he made an award of $10,000 for loss of future earning
capacity.  The Court of Appeal overturned that award, noting that there was no
real possibility that the plaintiff would turn to any employment that would
involve heavy work, and thus it had not been shown that there was a substantial
possibility that the plaintiff’s loss of capacity would result in a pecuniary
loss.

[97]        
The situation here is different because, as the opinion of Dr. Bohorquez
makes clear, Ms. De Vries may be subject to intermittent flare‑ups,
which may result in time off work, and is at higher risk for back pain, and
this raises some uncertainty about her capacity to engage in her preferred
speciality as an operating room nurse.  While all of this is something of an
unknown because she has not yet embarked on her nursing career, I am satisfied
that there is a substantial possibility of a future loss sufficient to ground
an award for loss of future earning capacity.

[98]        
Where the future loss cannot be measured in a pecuniary way, as in the
case at bar, the proper approach is to assess the loss as a form of capital
asset by considering the factors described by Mr. Justice Finch in Brown
v. Golaiy:

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

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

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

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

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

[99]        
Brown v. Golaiy was endorsed by the Court of Appeal in Kwei v.
Boisclair (1991), 60 B.C.L.R. (2d) 393.

[100]     Here, I am
satisfied that the plaintiff has been rendered somewhat less capable overall
from earning income from the types of employment in which she is likely to
engage, she may be somewhat less marketable to potential employers in her field,
there is a possibility that the career of operating room nurse will prove to be
too physically demanding for her, and that she is somewhat less valuable from a
strictly income-generating point of view.

[101]     The
essential substantial possibility, as I see it, is that she may find she has to
abandon a more physically-demanding nursing role in favour of a less physically-demanding
one, with a period or periods of transition that involve economic loss.  There
is also the substantial possibility that flare‑ups of back pain will
cause her to miss some time from work.

[102]     The
assessment of this loss is difficult.  The case closest to the present, though
with both similarities and differences, is S.T. v. S.K., 2010 BCSC 1564,
where an award of $10,000 was made.  I consider that to be an appropriate award
for loss of future earning capacity in this case.

C.             
Cost of Future Care

[103]     Plaintiff’s
counsel noted the medical recommendations for an aggressive core strengthening
program and for massage therapy on an as-needed basis.  It was suggested that
the plaintiff be awarded an amount sufficient to complete a core strengthening
program (five sessions); a one-year gym membership ($540); massage therapy (two
sessions a month for two years at $80 a session); and incidental expenses for over-the-counter
pain medication and heat pads.  The total of these items was just under $5,000.

[104]     Defence
counsel noted that the plaintiff had already been given instruction about core
strengthening and core stabilizing exercises and could do these on her own. 
Although her income was sufficient for her to afford to pay for massage
therapy, she has not availed herself of massage therapy for the past six
years.  Defence counsel therefore submitted there should be no award for cost
of future care.

[105]     Future
care costs must be shown to be necessary and reasonable, both in the sense of being
medically required and in the sense of being expenses that the plaintiff will
be likely to incur: Izony v. Weidlich, 2006 BCSC 1315, at para. 74.

[106]     While Dr. Bohorquez
noted in his report of January 23, 2012, that he had recommended to Ms. De Vries
that she undergo an aggressive core strengthening program, in cross-examination
it emerged that he had not asked her if she had already had instruction in that
area.  In fact, according to Ms. De Vries, the physiotherapy she had
following the second car accident focused on core strengthening and stretching
exercises, and she continues to do these exercises on her own.

[107]     Although Dr. Bohorquez
also recommended massage therapy as needed for symptomatic relief, the evidence
is that she has not availed herself of massage therapy at any time over the
last six years, and specifically has not done so following the express
recommendation of Dr. Bohorquez.

[108]     Given
these circumstances, I conclude that the plaintiff has not made out a case for
an award of future care costs for these items.

[109]     I am
satisfied that the plaintiff will incur costs for over-the-counter medication
and heating pads from time to time.  The expense for these items to date has
been relatively small, less than $200, and based on that, I consider that $100
is an adequate award for these items.

IV.           
Conclusion

[110]     In
summary, I assess damages as follows:

[111]     Finally, I
would apportion damages between the two accidents as follows: 85 percent to the
2007 accident and 15 percent to the 2008 accident.

[112]     Those
conclude my reasons.

“Blok
J.”