IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140425

Docket: M121696

Registry:
Vancouver

Between:

Farnaz Rahimi

Plaintiff

And

Sherri Ma and Sing
Lee Chung

Defendants

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

[1]            
The plaintiff, Ms. Rahimi, seeks damages for personal injuries she
suffered as a result of a motor vehicle accident that occurred on April 9, 2010
(the “Accident”). The issues raised in this action are made simpler by numerous
factors. Liability is admitted. Ms. Rahimi did not suffer from any
pre-Accident injuries or disabilities. There is no suggestion of any
intervening factors that may have contributed to or exacerbated her injuries.
The defendants called no expert evidence. To the credit of counsel for both
parties they worked efficiently and cooperatively to address those issues that
mattered and to ignore those that did not.

[2]            
Furthermore, the defendants do not contest that Ms. Rahimi suffered
some physical injuries as a result of the Accident and that she is likely to
suffer, to some degree, from those injuries in the future. The central issues
in dispute are i) the extent to which, if at all, such injuries have in
the past, and are likely to in the future, impede Ms. Rahimi in pursuing
her recreational and professional endeavors, and ii) what level of care Ms. Rahimi
is likely to require in the future.

Background and History

[3]            
Ms. Rahimi, who is now 32 years old, was born in Iran. She is
bright, articulate, well-educated and strong-minded. She moved from Iran to
Dubai in 2003 and pursued her studies in interior design at the American
University in Dubai.

[4]            
In February 2006 she immigrated to Canada. In 2006 and 2007 she
undertook further studies in interior design at the British Colombia Institute
of Technology. In September 2007 she entered a four-year program in interior
design at Kwantlen University. She graduated from that program with a Bachelor
of Applied Design in Interior Design in April 2011.

[5]            
It is not quite clear when she married or for how long she was married.
She left her husband in or around June 2010. In August of that year she moved
into a home used by her family when they visited from Iran. Her family, in
turn, immigrated to Canada from Iran in December 2010. Ms. Rahimi lived
with her family for a period of time and then moved into a two-bedroom
apartment in the Yaletown area of Vancouver. Her younger sister, Sarvnaz, who
gave evidence on behalf of the plaintiff, moved into an apartment a few blocks
away.

[6]            
In either late 2011 or early 2012, Ms. Rahimi began a personal
relationship with Mr. Hakimi who is the principal of Hectagon Construction
and Design (“Hectagon”). That entity provided some work to Ms. Rahimi as
early as January 2010 when Ms. Rahimi was still enrolled at Kwantlen. It
was as a result of these early professional dealings that their personal
relationship subsequently developed. Mr. Hakimi also gave evidence on
behalf of the plaintiff.

[7]            
I propose to address Ms. Rahimi’s recreational pursuits,
housekeeping activities and professional aspirations when I consider the claims
being advanced in relation to these matters.

The Accident

[8]            
The facts of the Accident are not contentious. Ms. Rahimi was
headed west along Alderbridge Way, in Richmond and came to a stop behind
traffic at a red light at the intersection of Alderbridge Way and Shell Road.
The defendant, Ms. Ma, was driving behind Ms. Rahimi at a speed of
approximately 50 km/h. She failed to notice that traffic had stopped ahead of
her until she was but a few feet from Ms. Rahimi’s vehicle and she drove
into the back of Ms. Rahimi’s car. Ms. Ma’s vehicle was deemed to be a
total loss as a result.

[9]            
Ms. Rahimi left the scene of the Accident without assistance. At
trial she said that she made her way directly to a medical clinic but that the
waiting times at that clinic were too long and so she then went home. This
evidence does not appear to accord with the evidence that she gave at her examination
for discovery. It is, in any event, clear that she went to the Burnaby Hospital
later that day where she was treated for neck pain and tenderness, shoulder
pain and tingling in her left hand.

The Plaintiff’s Injuries, Causation and Prognosis

[10]        
The plaintiff gave evidence of various injuries and difficulties which
she ascribed to the Accident. She said that following the Accident, or
relatively shortly thereafter, she struggled with pain and/or tightness and/or
discomfort in her neck, upper back, lower back and shoulders. She experienced
numbness and tingling in her left arm. She had some pain in her left thumb. She
began to develop headaches. She encountered some difficulty sleeping. She was
somewhat apprehensive about driving though this improved over time. She says
that she has become more irritable over time. Ms. Rahimi said that though
the severity of her difficulties has waxed and waned over time, there has been
no appreciable improvement or deterioration of her symptoms. She testified that
for all practical purposes her condition and the status of most of her various
injuries or the effects of the Accident remain as they were nearly four years
ago.

[11]        
I accept that Ms. Rahimi has experienced and continues to deal with
some pain or discomfort in each of her neck, shoulders, upper and lower back as
well as periodic numbness or tingling in her left arm and hand. She continues
to experience periodic headaches. She sometimes has trouble sleeping.

[12]        
The foregoing evidence is uncontested and is supported by evidence from
various sources. It aligns with the evidence of both Ms. Rahimi’s younger
sister, Sarvnaz, and Mr. Hakimi each of whom regularly sees the plaintiff
and has observed her discomfort. Ms. Sayers, a massage therapist who has
treated the plaintiff for several years, testified that there was ongoing
palpable tension in both Ms. Rahimi’s shoulders and on both sides of her
neck.

[13]        
Each of the experts called by the plaintiff, Dr. Caillier, a physiatrist,
and Dr. Jung, a chiropractor, provided opinions following their
examination of the plaintiff that were consistent with Ms. Rahimi’s having
some pain or discomfort in the areas that I have described.

[14]        
Furthermore there is no dispute that Ms. Rahimi’s various difficulties
were “caused” by the Accident: Resurfice Corp. v. Hanke, 2007 SCC 7 at
paras. 21-22; Clements v. Clements, 2012 SCC 32 at para. 8. Once
again, this conclusion is consistent with the evidence of each of Drs. Caillier
and Jung. The defendants did question whether Ms. Rahimi’s lower back
problems, which she only reported some months after the Accident, were attributable
to the Accident. Based on the evidence of Drs. Caillier and Jung, I am
satisfied that her lower back pain was also caused by the Accident.

[15]        
There is one area, however, where causation is not clear. At trial, Ms. Rahimi
said that she was more easily irritated than she had been prior to the Accident
and she ascribed that change to the Accident. Dr. Jung’s report summarizes
his findings as to Ms. Rahimi’s current presentation and functional deficits.
That summary does not refer to Ms. Rahimi’s mood. In addition, in Appendix
1 of his report he summarizes Ms. Rahimi’s comments to him and, under the
heading “Mood” states: “Ms. Rahimi was unable to provide me with
information with respect to her mood. She did however suggest that since the
collision she has been less patient with people but she was unable to attribute
it fully to the Collision”.

[16]        
The central portion of Dr. Caillier’s report does not expressly
address Ms. Rahimi’s mood. In Appendix 1 of that report, where Dr. Caillier
summarizes Ms. Rahimi’s comments to her, Dr. Caillier states: “She reports
that she had some difficulties with her mood after the motor vehicle accident.
She describes it as being related to arguments she had with her husband about
this accident and the accident before. She reports that this impacted upon her
mood. She reports that gradually it did improve”.

[17]        
Ultimately Ms. Rahimi’s comments to Drs. Caillier and Jung about
increased irritability, together with a series of further matters that I will
come to, are relevant to the reliability of Ms. Rahimi’s evidence.

[18]        
Finally, the opinions of Drs. Caillier and Jung, which addressed Ms. Rahimi’s
prognosis, were again largely consistent and uncontradicted. In relation to her
neck, shoulders and upper and lower back, Dr. Caillier, for example, said:

Prognosis: It is my opinion that, given the chronicity
of her symptoms, the likelihood of her becoming pain-free is poor and it is
likely that she will continue to experience pain on an intermittent basis now
and beyond the next 12 months.

It is my opinion that there is
still the opportunity to improve upon the management of her physical symptoms,
such that there is a lessening in the frequency and intensity of the symptoms,
as well as lessening the provocation of the symptoms, provided she has the
opportunity to participate in and receive benefit from an active rehabilitation
program and independently exercises at least three to four times per week for
one hour each time.

[19]        
In relation to Ms. Rahimi’s headaches Dr. Caillier said:

Prognosis: It is my opinion that it is likely Ms. Rahimi
will achieve further improvement of her headaches, provided there is improved
management of her neck pain and with this there will likely be a reduction in
the intensity and frequency of her headaches.

Given the chronicity of her neck pain, it is likely that she
will continue to experience headaches on an intermittent basis now and beyond
the next 12 months and that the frequency as well as intensity of the headaches
will depend upon her neck pain.

There is a strong possibility
that if she does not respond positively to the active rehabilitation program
and independent exercise program that her headaches will not improve in
frequency and intensity and as such the headaches will likely continue at the
same level they are presently.

[20]        
In relation to the issue of sleep Dr. Caillier said: “I anticipate
that her sleep will improve, provided she is able to participate in and receive
benefit from the active rehabilitation program, as well as independently
exercises”.

[21]        
I should note that with the agreement of counsel, and based on a series
of further documents and reports that postdated Dr. Caillier’s report of
September 27, 2012, Dr. Caillier confirmed that the opinions she expressed
in her initial report remain consistent to the present time.

[22]        
Dr. Jung confirmed that he was generally “in agreement with Dr. Caillier’s
opinions with respect to the injuries” of Ms. Rahimi.

[23]        
Finally, I observe that the defendants did not in any meaningful way
challenge the conclusions that were expressed with respect to Ms. Rahimi
having suffered the injuries described, the fact that those injuries were
caused by the Accident or the prognosis for her recovery. Instead, again, the
contest between the parties focused on the extent to which, if at all, these
injuries have impacted on Ms. Rahimi’s personal and professional life or
will do so in the future.

Credibility and Reliability

[24]        
Counsel for the defendants argued that Ms. Rahimi’s evidence should
be regarded with some skepticism. There were concerns, it was said, with both
her candour and her reliability.

[25]        
The concerns identified by counsel with respect to Ms. Rahimi’s
credibility found their roots in various tax returns where Ms. Rahimi had
not accurately reported her income. Similarly, she wrote a letter to Kwantlen
University in aid of obtaining a bursary, wherein she stated that she was not
working part time, which was not, based on her evidence at trial, forthright. Ms. Rahimi
ascribed such conduct to her then husband and said that, for various reasons,
she had not been able to oppose her husband. I do not consider that I need to
address these issues directly. I do observe that Ms. Rahimi has continued,
in many instances, to be paid in cash for her professional services and has not
rendered any form of formal invoice for her work – a practice that is
generally inappropriate and that is not consistent with forthright and
transparent business practices.

[26]        
The concerns with the reliability of her evidence are, however, more
acute. The following are simply examples of this concern. At trial Ms. Rahimi
said that though her symptoms had waxed and waned a little over the years,
those symptoms and their severity were largely unchanged from the date of the
Accident through to the trial. Dr. Caillier’s report, however, states “Ms. Rahimi
has had improvements in her symptoms since the time of their onset following
the motor vehicle accident of April 9, 2010. In particular, the lower back
symptoms have improved to the extent that they are only present when she sits
for a prolonged period of time”. Similarly, Dr. Caillier’s report
concludes “Ms. Rahimi’s headaches have improved since the time of their
onset.” Dr. Caillier, in Appendix I of her report also notes that Ms. Rahimi
told her that “her pains were constant, but gradually improved to sometimes
being there and sometimes not”.

[27]        
Dr. Jung met Ms. Rahimi about a month after Ms. Rahimi met
with Dr. Caillier. His report, on the other hand, states “At the
assessment, Ms. Rahimi told me that over the last year, her overall
condition has “gotten a little worse”.

[28]        
At trial Ms. Rahimi said that she had turned down several pieces of
work as a result of her injuries from the Accident. Those jobs formed part of
her past wage loss claim. Ms. Rahimi reported to Dr. Caillier,
however, that as of the date of their meeting she had not turned down work as a
result of her symptoms. Instead she told Dr. Caillier, based on
Dr. Caillier’s record in Appendix I of her report that “her work is on and
off, and will depend on obtaining work. … To date, she does not turn down work
as a result of the symptoms”.

[29]        
Ms. Rahimi told Ms. Craig that she was working full time and
that she had not worked for Hectagon until after the Accident. Based on her
evidence at trial neither of these assertions is accurate.

[30]        
At trial Ms. Rahimi said that she had been prescribed various
medications by a physician she had seen and, indeed, she thereafter reported to
another physician that those medications were effective. She said, however,
that she preferred not to take prescription medicine. She told Dr. Jung,
on the other hand, that she had not been prescribed any medication for her
injuries.

[31]        
At trial Ms. Rahimi said that she was unable to drive for more than
approximately a half hour without discomfort. She reported to Dr. Jung,
however, that she was able to drive without difficulty if she adjusted her seat
properly.

[32]        
At trial Ms. Rahimi said that she could walk for 30 to 45 minutes
without discomfort. She told Dr. Jung that she encountered discomfort after
walking 15 to 20 minutes.

[33]        
These concerns with the reliability of Ms. Rahimi’s evidence do undermine
the force or weight of her evidence. The most significant concern that exists,
however, arises from the significant disconnect between her assertions of the
extent to which her injuries have affected or impaired both her day-to-day life
and her professional activities and the objective assessment of those claims
made in the expert reports that were filed on her behalf. I propose to deal
with additional examples of such inconsistencies when I address the particular
heads of damage that are being advanced on her behalf.

[34]        
A telling example of this incongruity, however, is found in the report
and evidence of Ms. Craig. Ms. Craig concluded that Ms. Rahimi’s
self-reports of function and pain were considered “mostly” reliable. One source
of concern to Ms. Craig, however, was that Ms. Rahimi, in relation to
both her neck and low back, filled out questionnaires whose conclusions
indicated that Ms. Rahimi, in relation to these areas of her body,
“perceives herself to be in the severely disabled to crippled category”. The
reality of Ms. Rahimi’s condition does not begin to approach this level of
severity.

Mitigation

i)        The Usual Context

[35]        
The question of whether Ms. Rahimi has properly mitigated her
losses presents itself in a somewhat unusual context. Generally, in personal
injury cases, the issue of whether a plaintiff has properly mitigated his or
her losses focuses, at least in large part, on whether the defendant has proved
that the plaintiff has acted unreasonably in failing to undergo or to follow
various recommended treatments or therapies.

[36]        
The leading case on mitigation in British Columbia is Chiu v. Chiu,
2002 BCCA 618, where the court concluded that in order to prove a failure to
mitigate the defendant must prove (1) that the plaintiff acted
unreasonably in eschewing recommended treatment; and (2) the extent to
which the plaintiff’s damages would have been reduced had he/she acted
reasonably (at para. 57).

[37]        
More recently, in Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144, Garson J.A., for the court, described the test as a
subjective/objective test, “That is whether the reasonable patient, having all
the information at hand that the plaintiff possessed, ought reasonably to have
undergone the recommended treatment. The second aspect of the test is “the
extent, if any to which the plaintiff’s damages would have been reduced”
by that treatment” (at para. 56, emphasis in original).

[38]        
In Lemieux v. Evers, 2000 BCSC 1464 at para. 61, Martinson
J. outlined the content of the defendant’s evidentiary burden as a three-part
test determined on a balance of probabilities:

The onus of proving a failure to
mitigate lies with the defendant. Discharge of this onus requires the defendant
to establish on a balance of probabilities the following: (1) the steps a
plaintiff could have taken in mitigation (e.g. taking doctor recommended
treatment); (2) the reasonableness of pursuing those steps; and (3) the extent
to which the plaintiff’s loss would thereby have been avoided: [Janiak v.
Ippolito (1985), 16 D.L.R. (4^th) 1], at 14 to 17.

[39]        
In Antoniali v. Massey, 2008 BCSC 1085, Preston J. formulated the
defendant’s burden in similar conceptual terms, though he identified four
distinct elements that must be proven:

[31]      In order to conclude that Ms. Antoniali’s
damages should be reduced by application of the principle that a plaintiff has
a positive duty to mitigate his or her injuries, I would have to find that the
defendant has established:

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 Ms. Antoniali’s circumstances would have
followed such a program;

3.      that Ms. Antoniali
unreasonably failed to follow such a program and;

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

[40]        
Though Lemieux and Antoniali expand on the Chiu test
by identifying the distinct elements that must be proven by the defendant, they
do not directly address how this evidence should be adduced or the kind of
evidence that will satisfy this burden.

[41]        
Another legal principle is relevant: “[t]he plaintiff is not held to a
high standard of conduct in mitigation; the law is satisfied if the plaintiff
takes steps that a reasonable person would take in the circumstances to reduce
the loss”: Middleton v. Morcke and Lee, 2007 BCSC 804 at para. 37;
see also Alden v. Spooner et al, 2002 BCCA 592 at paras. 23-24,
leave to appeal ref’d, [2002] S.C.C.A. No. 535.

[42]        
In this case, Ms. Rahimi has sought little medical advice or
assistance from the time of the Accident to the time of trial. Furthermore,
though she was aware of various independent medical reports in the possession
of her counsel and was aware that at least one of those reports made treatment
recommendations, she did not read the report(s) or so much as ask for it/them.
The issue before me then turns not on Ms. Rahimi’s failure to follow
advice but rather on her failure to seek advice or more specifically her failure
to apprise herself of the advice available to her.

ii)       Does the Obligation
to Mitigate include an Obligation to Seek Medical Assistance or Advice?

[43]        
Ms. Rahimi, over a period of four years, appears to have seen four
different physicians on a total of six to eight occasions about her injuries.
She saw different people on different occasions partly because she did not, at
most times, have a personal physician and partly because she did not like some
of the advice she was given. Thus, for example, she appears to have chosen not
to continue to see Dr. Karimirad because he was reluctant to support her
request for further massage or physiotherapy treatment and, instead, recommended
prescription medications that she did not want to use. Even this event,
however, is telling. Ms. Rahimi was not so much seeking advice, as she was
seeking someone who would endorse the form of therapeutic activity that she
wished to pursue.

[44]        
In Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2d
ed. (Scarborough, Ont.: Carswell, 1996) at p. 862, the author states “Personal
injury victims cannot sit back after the accident and allow their losses to
accumulate. They must take all reasonable steps to avoid those losses”.

[45]        
In Sevinski v. Vance, 2011 BCSC 892, I said:

[68]      Instead, the proper starting point is the obligation
of an injured plaintiff to seek appropriate medical assistance. The failure to
seek such assistance cannot and does not displace or diminish the plaintiff’s
obligation to mitigate his or her loss. Thus, in Jamie Cassels and Elizabeth
Adjin-Tettey, Remedies: The Law of Damages, 2nd ed. (Toronto: Irwin Law,
2008) at 389, the authors state:

Plaintiffs who are tortiously
injured have an obligation to take reasonable steps to mitigate their injuries
and cannot collect damages for losses that could be avoided. Mitigation in the
circumstances ordinarily requires the plaintiff to seek appropriate medical
treatment…

[69]      Similarly, in S.M. Waddams, The Law of Damages, looseleaf
(Aurora, Ont: Thomson Returers, 1991) at 15.260 the author states:

In personal injury cases, the
plaintiff is obligated to submit to reasonable medical treatment and to seek
and follow medical advice where appropriate.

[83]      In summary, I find the
plaintiff’s failure to raise her difficulties at an early stage and/or on an
ongoing basis with appropriate medical advisers, her failure to obtain guidance
or advice on the treatment of those difficulties, and her failure to engage
actively and diligently in a course of physical or rehabilitative treatment,
together constitute a failure to mitigate her losses.

[46]        
In Papineau v. Dorman, 2008 BCSC 1443, where a plaintiff failed
to obtain medical advice for eight months after an accident, Brown J. said:

[247]    Mr. Papineau’s
failure to seek medical help for eight months is another mitigation issue. Against
this has to be weighed the serious challenges people face trying to find a
family physician, especially when moving to a new city. At the same time, Mr. Papineau
never even made his way to a walk-in clinic, despite urgings to do so. Injured
people are entitled to make reasonable decisions about their own bodies and
about when and where they seek medical advice; but when they wait an
unreasonably long time without reasonable explanation, a defendant may have
legitimate grounds for complaining that the plaintiff has failed to mitigate.

[47]        
In Papineau, this early failure to seek medical assistance was
overshadowed by the plaintiff’s failure to follow the advice he was
subsequently given.

[48]        
The positive obligation to seek assistance, as with all aspects of mitigation,
need only be reasonable. Whether a plaintiff has acted reasonably will be a
function of many circumstances. Some plaintiffs may reside in remote locations
where medical assistance is not easily accessed. Some plaintiffs may suffer
from depression or an addiction issue that affects their functionality and
their ability to seek assistance; see, for example, Penner v. Silk, 2009
BCSC 1682 at para. 50, var’d on other grounds (sub nom Penner v.
Insurance Corporation of British Columbia) 2011 BCCA 135. Some plaintiffs’
injuries may be sufficiently modest that a failure to seek assistance is
readily understood.

[49]        
In this case Ms. Rahimi is an intelligent and educated individual
who resides in an urban centre. Though no specific details were provided, she
appears to come from a financially comfortable background, such that her
financial situation would not have been an impediment to her seeking medical
treatment; her father hired her, for example, to decorate both his apartment
and her sister’s apartment. However, she was identified by each of Dr. Caillier,
Dr. Jung and Ms. Craig as being significantly deconditioned. She has
gained approximately 40 pounds since the Accident. She asserts that her
injuries affect her ability to sit, stand, walk, drive, work, cook, clean her
home, get groceries, carry most things, and engage in virtually any
recreational activity that she enjoys. She also says that the severity of her
injuries has remained constant since the Accident.

[50]        
In such circumstances it is exceedingly difficult to understand why Ms. Rahimi
would not endeavor to address her injuries in a more focused and formal way. In
saying this I recognize that she has frequently attended for physiotherapy and
massage treatments. She has sought out acupuncture treatments on the advice of
her boyfriend. She has, on the advice of a friend, worked for a period of time
with a personal trainer. She now does some yoga.

[51]        
It is not enough, however, to unsuccessfully cast about for help. Her
activities have lacked the structure, consistency and focus that is being
recommended for her by those independent medical examiners upon whom she now
relies in support of her future loss claim. Each of those independent experts
recognizes that the plaintiff is deconditioned and that she requires a serious
active exercise regime, which would only be periodically supplemented by the
largely passive treatments that Ms. Rahimi has generally relied upon to
date.

[52]        
I do not say that Ms. Rahimi’s failure to obtain further medical
assistance, without more, gives rise to a failure on her part to mitigate
losses. I do say that the obligation to mitigate, based on the authorities I
have referred to, and the circumstances that exist in a given case, can extend
beyond simply following the medical advice that a plaintiff is provided. It can
extend, instead, to the positive obligation to reasonably seek assistance or
guidance. In saying this, I recognize that the burden of proving that a
plaintiff has failed to act reasonably rests, at all times, on the defendant.

iii)      The Care
Recommendations Contained in the Reports of Drs. Caillier and Jung and Ms. Craig

a)       Was Ms. Rahimi Aware of these Care Recommendations?

[53]        
Ms. Rahimi was cross-examined about whether she was aware of the
recommendations in the reports of Ms. Craig and, in particular of Drs.
Caillier and Jung. What, if anything, she knew about the recommendations in the
reports of Ms. Craig and Dr. Jung is unclear and I have,
consequently, focused on the report of Dr. Caillier though even here Ms. Rahimi’s
evidence was not consistent.

[54]        
At one point Ms. Rahimi said that she had a copy of Dr. Caillier’s
report but had only read the first page. She later said she did not remember
receiving or having a copy of the report. It is clear that Ms. Rahimi’s
counsel sent a copy of Dr. Caillier’s report to Dr. Kang, who had become
Ms. Rahimi’s family doctor. Relevant clinical notes suggest that Dr. Kang
discussed Dr. Caillier’s report with Ms. Rahimi, though Ms. Rahimi
had no clear memory of this. Importantly, Ms. Rahimi did recall that she
had been told by her counsel that Dr. Caillier’s report contained
recommendations for her, relating to exercise, massage and physiotherapy,
though she was not told of the details of these recommendations.

[55]        
Thus, for present purposes, the one fact that is clear is that the
plaintiff knew, through her counsel, that Dr. Caillier’s report made care
recommendations for her.

b)       What Care Recommendations did Dr. Caillier make?

[56]        
In relation to the plaintiff’s headaches Dr. Caillier said:

Recommendations:
It is my opinion that participation in an active
rehabilitation program, as well as ensuring that she is exercising
independently at least three to four times per week will result in improvement
in headaches with a lessening in intensity and frequency.

[57]        
In relation to the plaintiff’s neck, back and shoulder pain Dr. Caillier
said:

It is my opinion that there is still the opportunity to
improve upon the management of her physical symptoms, such that there is a
lessening in the frequency and intensity of the symptoms, as well as lessening
the provocation of these symptoms, provided she has the opportunity to
participate in and receive benefit from an active rehabilitation program and
independently exercises at least three to four times per week for one hour each
time.

Recommendations: I am recommending Ms. Rahimi
participate in an active rehabilitation program. I am recommending she have at
least 14-16 sessions with a kinesiology-based exercise trainer. The goal of
this program is to improve upon the strength, endurance, and flexibility about
the neck, upper back, shoulders, rotator cuff muscles, scapular stabilizers,
and low back, core and pelvis regions.

I am also recommending that she have an allowance for an
additional 4 to 5 kinesiology sessions per year for the next 3 years to assist
in the management of her chronic pain and progress her exercises / alter the
exercise program as needed.

Ms. Rahimi does need to understand that when she tries
an activity she has not done or has not done for a while, this will likely
result in a flare of her symptoms; therefore, it would not be surprising if she
experiences an increase in pain, particularly of the neck, during the active
rehabilitation program. She should continue to go forth with this program.

Ms. Rahimi should be exercising at least three to four
times per week for one hour each time. This should be a combination of gym and
pool-based exercises. The goal is to improve upon her posture as well as
overall strength, endurance, and flexibility about the neck, upper back,
shoulder, low back, core and pelvis musculature.

I am recommending Ms. Rahimi’s
workstation at home be assessed from an ergonomical standpoint. I am
recommending there is not only ergonomical assessment of her workstation but
also of the table where she does the freehand drawing. This will likely allow
for improved management of her symptoms such that there is a reduction in
flares of her symptoms with sustained postures as well as result in a lessening
of undue stress placed upon the musculature of the neck, upper back and
shoulder regions.

[58]        
In relation to the plaintiff’s recreational activities Dr. Caillier
said:

With regards to her recreational
activities, she does need to gradually improve upon her tolerance and endurance
for activities. This means going swimming on a consistent basis as well as even
riding a bike on a consistent basis. The pain that she is likely experiencing
when she is doing these activities is also likely secondary to fatigue-related
lack of endurance of the musculature, prompting a flare of her symptoms. This
will likely lessen eventually however, there is a possibility that the fatigue
related pain will not lessen despite best efforts with the active
rehabilitation program and independent exercise.

[59]        
In relation to the plaintiff’s difficulties with sleep Dr. Caillier
said:

I anticipate that her sleep will
improve, provided she is able to participate in and receive benefit from the
active rehabilitation program, as well as independently exercises [sic].

c)       Should Ms. Rahimi
have Inquired about the Care Recommendations made by Dr. Caillier?

[60]        
Ms. Rahimi knew that Dr. Caillier’s report contained care
recommendations that had been made for her. That issue was tested in Ms. Rahimi’s
cross-examination. The present case is thus quite different from Chiu
where the defendant did not cross-examine the plaintiff on his failure to
pursue treatment (para. 65). The court in Wahl v. Sidhu, 2012 BCCA
111, at paras. 44-46 and 52, emphasized a similar failure on the part of
the plaintiff that was not tested by the defendant in cross-examination.

[61]        
The present case is also different from cases such as Tam v. Cheung,
[1998] B.C.J. No. 842 at para. 33 (S.C.) or Rezaie v. Leland,
2013 BCSC 1650 at paras. 107-109, where there was no evidence that the
plaintiff was aware of the recommendations contained in various independent
medical legal reports. Thus, in Rezaei Punnett J. said:

[108]    The evidence of the plaintiff is that none of the
physicians he consulted recommended therapy. While Dr. Gropper in his
medical legal report of 2008 recommended therapy there is no evidence that he
informed the plaintiff of that given his role was to conduct an independent
medical examination, not to treat the plaintiff. In cross-examination he stated
that he recommended to the plaintiff’s lawyer a course of therapy however there
is no evidence that the plaintiff was ever aware of that recommendation.

[109]    Given it has not been
established that the plaintiff was told to take therapy there is no proof that
the plaintiff knowingly failed to follow such medical recommendations. As a
result I find no failure to mitigate.

[62]        
In this case, again, though Ms. Rahimi was not aware of the
specific care recommendations contained in Dr. Caillier’s report she was
aware that such recommendations were made.

[63]        
The question then becomes whether her failure to inquire further was
unreasonable. I find that it was. In saying this I recognize that the burden of
proof, in relation to the issue of mitigation rests throughout on the defendants.
I further recognize that the care recommendations I am addressing are
recommendations that are found in the report of an independent medical examiner
and not a treating physician and that the roles of such physicians are
different.

[64]        
The plaintiff addressed this issue briefly and indirectly during her
cross-examination as an explanation for why she did not directly ask either Dr. Caillier
or Dr. Jung for their recommendations. She said that she did not consider
that that was appropriate because she was there to be examined by them. Though
that explanation is reasonable in the context of her original appointment or
examination by these experts, I do not consider that it remained reasonable
after she became expressly aware that Dr. Caillier’s report did, in fact,
contain care recommendations for her.

[65]        
I also do not consider, however, that the difference in the role or
function of an independent expert as opposed to a treating physician insulates
an individual from having to act reasonably and, in appropriate circumstances,
making further inquiries. It was, for example, open to Ms. Rahimi to ask
her family doctor, Dr. Kang for input or comment on the report of Dr. Caillier.
It was this very result that her counsel, by sending the report of Dr. Caillier
to Dr. Kang, sought to achieve. Indeed, there is some evidence that this discussion
in fact took place.

[66]        
In this case I consider that a reasonable person in Ms. Rahimi’s
circumstances would have inquired about Dr. Caillier’s care
recommendations.

d)       Is There Evidence That
Ms. Rahimi’s Damages and/or Difficulties Would Have Been Reduced had she Followed
Dr. Caillier’s Recommendations?

[67]        
The defendants must “present the necessary evidence to raise failure to
mitigate from speculation to reasonable inference”, Chiu at para. 66.
In Chiu the defendants did not identify medical opinion evidence
relating to the plaintiff’s failure to seek more counseling, including evidence
that spoke to the ameliorative effect that such counseling would have had on
the plaintiff’s impairment.

[68]        
Similar concerns were expressed by the court in Gregory, where it
was held that an expert opinion which identified that a treatment was
reasonable to try and “might afford some relief” was not sufficient to meet the
Chiu threshold. The court considered that the benefits of the treatment
remained mere speculation and did not afford a reasonable inference that the
treatment would have reduced the plaintiff’s damages to some extent (at paras. 57-58).

[69]        
Wahl is another example of where the court held that the
defendant’s failure to cross-examine the plaintiff on his failure to pursue recommended
treatment, coupled with a failure to identify medical evidence that established
that the plaintiff’s symptoms would have been reduced or would have been
resolved had the plaintiff undergone the recommended treatment, meant that the
defendant’s burden, as established in Chiu, had not been met (paras. 45
and 52).

[70]        
As a relevant aside, the distinction between speculation and reasonable
inference was discussed in Graham v. Rogers, 2001 BCCA 432 at para. 53,
leave to appeal ref’d, [2001] S.C.C.A. No. 467, where the court cited the
English case of Caswell v. Powell Duffryn Associated Collieries, Ltd.,
[1940] A.C. 152 (H.L.) for the following propositions:

… Inference must be carefully
distinguished from conjecture or speculation. There can be no inference unless
there are objective facts from which to infer the other facts which it is
sought to establish. In some cases the other facts can be inferred with as much
practical certainty as if they had been actually observed. In other cases the
inference does not go beyond reasonable probability. But if there are no
positive proved facts from which the inference can be made, the method of
inference fails and what is left is mere speculation or conjecture.

[71]        
In this case the segments of Dr. Caillier’s report that I have
referred to earlier assert that the forms of treatment she recommended either
“will result” in or are “likely” to be of benefit to the plaintiff. These
conclusions are not speculative but rather are expressed as at least a
probability of a future event.

[72]        
I am reinforced in this conclusion by the relative uniformity in the
views of Dr. Caillier, Dr. Jung and Ms. Craig and their
conclusions that the general recommendations made by Dr. Caillier would
give rise to some amelioration of Ms. Rahimi’s symptoms. I am not focusing
on particular exercises but rather on the need for some active regime. Each expert
emphasized the need for an increased level of active rehabilitation, though
each also proposed either different or additional activities.

[73]        
In the result I do not consider that Ms. Rahimi has acted
reasonably to mitigate her losses.

General Damages

[74]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to
appeal ref’d, [2006] S.C.C.A. No. 100, Kirkpatrick J.A. identified the
following non–exhaustive considerations that are relevant to an award of
non-pecuniary damages: the age of the plaintiff; nature of the injury; severity
and duration of 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 degree of
stoicism. The object of such damages is to provide the injured person with
reasonable “solace” for his or her misfortune. Accordingly an appreciation of
the individual’s loss is important.

[75]        
It is also important to recognize that an award of non-pecuniary damages
is intended to compensate for both past pain and suffering and loss of
enjoyment of life as well as for such losses that the plaintiff is likely to
experience in the future; see, for example, MacIntosh v. Davison, 2013
BCSC 2264 at para. 91.

[76]        
Ms. Rahimi asserts that the injuries she suffered as a result of
the Accident have impeded her in multiple respects and impaired her ability to
enjoy many of the things that had previously given her pleasure. She was a
relatively accomplished and avid swimmer and she had, in the past, gone
swimming with some regularity – particularly in those periods when she was
not busy. She enjoyed walking and the things that came with walking; she liked,
for example, to explore new neighborhoods and to go window shopping. She would periodically
go bicycling. On a few occasions she went skiing and camping and she enjoyed these
activities. She had, for example, over an eight-year period gone skiing perhaps
eight or ten times. She liked to entertain and to cook traditional Persian
meals. She is also quite artistic and enjoyed making jewelry, drawing or
painting and making artificial flowers designed to look like china.

[77]        
Ms. Rahimi’s claim that she is impeded in her ability to partake in
these various activities and pastimes is supported by the evidence of each of Mr. Hakimi
and her younger sister, Sarvnaz Rahimi.

[78]        
I emphasize the words “impeded” or “impaired” because Ms. Rahimi
accepts that she can engage in these activities but says that they cause her
discomfort either at the time or shortly thereafter.

[79]        
I accept that Ms. Rahimi suffers from some degree of discomfort
and/or pain when she engages in some of these activities. I also accept, based
on the evidence of Drs. Caillier and Jung, that though she is likely to learn
to manage her pain better in the future, she is also likely to continue to
struggle, to some degree, in the future.

[80]        
I do not accept, however, that Ms. Rahimi suffers from the
severity, or breadth of impairment that she asserts. I say this for several
reasons. It is not consistent with her activity during the extended period of
time that immediately followed the Accident. Ms. Rahimi returned to her
classes the day after the Accident and missed no school as a result of the
Accident. She testified that she would wake up at about 6:00 a.m. each day
and commute to and from school. On some days she drove, which took approximately
an hour and 15 minutes in each direction – well beyond the time she now
says that she can drive without discomfort. She attended classes all day. Those
classes would have required extended periods of sitting and standing –
both of which she says are difficult for her. She says she often studied or
worked until midnight and sometimes she worked through the night. She also did
some part-time work for Hectagon during this period. She graduated on time with
the rest of her class. She went to Spain for two weeks with that class. This
entire period of time, some 15 months, speaks to an extremely high level of
sustained functionality.

[81]        
Ms. Rahimi’s evidence is also not consistent, for example, with the
evidence of Mr. Hakimi who said he spends about 80 – 85% of his day
with her. This would include being at the office, going to job sites, going to
lunch and spending their evenings together.

[82]        
It is also not consistent with the relatively modest efforts she made to
get medical assistance or advice in the years following the Accident or with
the extended gaps in her seeking massage or physiotherapy treatment. Thus, Ms. Rahimi
often went for three or four or more months, generally in the summertime,
without seeking any such treatments. She addressed some of these gaps by
explaining how busy she had been at this particular time – though based on
her evidence, it is when she is busy that she would be most in need of such
assistance.

[83]        
A proper assessment of Ms. Rahimi’s non-pecuniary losses is further
impeded by a somewhat unusual factor. Ms. Rahimi has demonstrated a
curious inflexibility in addressing the difficulties she says she faces. She
enjoys swimming and says, for example, that swimming the front crawl causes her
discomfort in her neck and shoulders. She accepts that she has been told to try
the back crawl but has not done so because she does not like doing that stroke.
She likes to cycle but says it causes her pain in her neck and shoulders. Dr. Jung
has proposed that she try a type of bicycle that he described as a “comfort
bike”. Her response, in cross‑examination, to whether she had or would
try such a bike was to question why she should when she already had another
kind of bike. Though Ms. Rahimi says she likes to walk and has discomfort
if she walks for more than 30 to 45 minutes, the fact is she does not seek to
walk even this amount. Instead, based on her evidence, she generally limits her
walks to perhaps two 10 to 15 minute walks with her dog per day.

[84]        
Addressing her artistic pursuits, and whether she is impaired in her
ability to pursue these activities, requires a more searching assessment but
involves similar issues. Ms. Rahimi accepts that her ability to make
jewelry has not been affected by the Accident. She accepts that the fact that
she no longer makes artificial flowers as she used to is unrelated to the
Accident. She says that she no longer draws or paints because her preference is
to do so for extended or uninterrupted periods of time. This would require
either sitting or standing for an extended time. She accepts that she could
both paint and draw if she took some breaks. She did, for example, take
painting and drawing classes at Kwantlen University following the Accident and
did well in those classes.

[85]        
Ms. Rahimi accepted that she had not been camping in some years
because she had not been invited to do so. She said if she were invited she
would likely go but suspected that she might have some difficulty doing so.

[86]        
The reality is then that Ms. Rahimi is neither unable nor seriously
impeded in her ability to engage in many of the activities that she has enjoyed
in the past. These pastimes, or many of them, remain available to her with some
adjustment or change in how she undertakes them.

[87]        
The further reality, based on the evidence of Drs. Caillier and Jung, is
that if Ms. Rahimi undertakes the forms of rehabilitation recommended by
them she is likely to be able to manage her symptoms better. This speaks to the
prospect of both a broader and greater level of activity than she has engaged
in in recent years.

[88]        
She also told Dr. Caillier that both her headaches and back pain had
improved since the Accident. Dr. Caillier has said that a sustained active
rehabilitation program is likely to further assist her with these difficulties
and with her sleep patterns.

[89]        
Counsel for Ms. Rahimi argued that the application of the factors
identified in Stapley supports an award of non-pecuniary losses of $85,000
to $90,000.

[90]        
The defendants argue that an award of $35,000, in all the circumstances,
would be appropriate. The defendants also submit that some further adjustments
to this figure, to accommodate or recognize the plaintiff’s failure to mitigate
her losses, are appropriate.

[91]        
I consider that neither set of cases provided to me by counsel properly
reflects Ms. Rahimi’s status. The cases relied on by counsel for Ms. Rahimi
relate to plaintiffs whose injuries were generally more severe than Ms. Rahimi’s.

[92]        
In Johal v. Meyede, 2013 BCSC 2381, there were “[d]ramatic
changes from the plaintiff’s pre-accident condition to her post–accident
condition, both physically and in terms of her mental disposition” (para. 54).
The court awarded the plaintiff $85,000 in non‑pecuniary damages.

[93]        
In Kasidoulis v. Russo, 2010 BCSC 978, the plaintiff suffered
more serious injuries than did Ms. Rahimi, injuries that had a broader
range of consequences for the plaintiff. For a period after the accident her
pain was “disabling” and it was “impossible for her to work” (para. 8). The
court described her pain as “debilitating” (para. 39). Though some
symptoms abated, her doctor noted “no significant improvement in [her]
symptoms” (para. 13). The plaintiff had also become much more withdrawn
and less social. She was awarded $90,000.

[94]        
In Smith v. Fremlin, 2013 BCSC 800, the plaintiff was described
as a “somewhat driven individual” (para. 11). She suffered from some pain
“all of the time” (para. 9). She had been an accomplished cyclist and
marathon runner. She was articling at the time of the accident. She was no
longer able to cycle. She was able to continue to run, though she ran more
slowly and for shorter distances. She recognized she would no longer be able to
satisfy “the rigours of the traditional practice of law” and chose to pursue a
doctorate in law in the hope that she would find a teaching position. It is
telling that after her functional evaluation she required two days of bed rest
and it took her the better part of a week to return to the level of pain she
normally lived with. She was awarded $90,000 for her non-pecuniary losses.

[95]        
The cases relied on by the defendants similarly do not align with Ms. Rahimi’s
condition or prognosis. In Nair v. Cindric, 2013 BCSC 2128, the
plaintiff was 14 years old at the time of the accident. She did not miss any
school as a result of the accident and she continued to participate fully in
her primary activities of volleyball and Indian classical dance. Mr. Justice
Skolrood found the plaintiff suffered a mild to moderate soft tissue injury to
her upper back. He found that she would likely continue to experience periodic
flare-ups of her upper back, which the medical evidence suggested was unlikely
to resolve entirely. The court awarded non-pecuniary damages of $30,000.

[96]        
In St. Germain v. Jemmott, 2012 BCSC 1041, the plaintiff was a 31-year-old
woman. The court found that her accident caused her significant and persistent
lower back pain but there was no evidence that her headaches were caused by the
Accident. The court further found that the plaintiff’s overall health and
well-being were impacted by personal and financial issues that were unrelated
to the Accident and that her lower back condition was exacerbated by her
failure to undertake recommended treatments and exercise routines. Non-pecuniary
damages of $35,000 were awarded.

[97]        
In Basi v. Buttar, 2010 BCSC 9, the plaintiff was a 36-year-old
woman. Her complaints included neck pain that radiated into the back of her
head, and pain between her shoulder blades that radiated down to her mid and
low back. Mr. Justice Brown found that the plaintiff had nearly made a
full recovery since the Accident. He found that she would fully recover if she
were to follow the medical advice made to her. He awarded $30,000 for non-pecuniary
damages.

[98]        
Having regard to the foregoing guidance, I consider that an award of $60,000
properly compensates the plaintiff for her general damages. This award properly
reflects the Stapley factors I have referred to, my findings in relation
to the plaintiff’s physical status and the recognition that if the plaintiff
follows the recommendations of Drs. Caillier and Jung and of Ms. Craig,
she is likely to be able to better manage her symptoms in the future.

[99]        
I also consider that a 20% reduction of this amount is appropriate and
reflects the plaintiff’s failure to mitigate her losses. Ms. Rahimi is
thus awarded $48,000 on account of her general damages.

Past Wage Loss

[100]     The
plaintiff asserts that the Accident affected her ability to work and has caused
her loss. Though past wage loss claims can be advanced as a loss of earning
capacity, Ibbitson v. Cooper, 2012 BCCA 249 at para. 19, this was
not the theory of loss that was advanced in this instance. Instead, counsel for
Ms. Rahimi advanced various types of specific calculations on her behalf.
Some were based on the loss of income from projects that Ms. Rahimi was
offered by Hectagon and that she either declined or that she started and then
stopped working on. Other related calculations were based on what Ms. Rahimi
might have earned working for a design firm, but for the Accident, less the
amount she did earn working for Hectagon.

[101]     Post-graduation,
Ms. Rahimi applied to two design firms for work. She did not indicate in
her applications that she suffered from any impairment in her ability to work.
She was not hired by either entity and has never, thereafter, sought either to
obtain full-time or part-time work from any such firm or to seek contract work
from any source other than Hectagon. It also does not appear that Ms. Rahimi
has sought additional work from Hectagon, though Mr. Hakimi said he had
further work or projects for her.

[102]     The
reasons Ms. Rahimi gave for declining certain projects that were offered
to her were varied. Some projects required “too much research”. Others were too
large, though, as a matter of context, they were often projects that would have
taken either weeks or a month or two of work. In some cases the clients were
perceived to be difficult for various reasons and Ms. Rahimi believed she
would become irritated with them. Other projects would have required more
driving than Ms. Rahimi was comfortable with. Others appeared to be
projects that Ms. Rahimi was not interested in, and counsel for
Ms. Rahimi accepted this in his closing submissions. She has a greater
interest in the design of public space than in the primarily residential spaces
that Hectagon works on. She also said that she had wanted to take a break of
some months after graduation. Ms. Rahimi acknowledged that she could work,
or sit and stand as required for work, but that if she were required to do so
for any prolonged period of time her symptoms would be irritated.

[103]     Importantly,
if one adds up the work that Ms. Rahimi has done since she graduated from
Kwantlen University, that calculation yields a very modest figure. In each year
she has only worked, in combination, for a total of a few months a year. This
level of effort or work history is completely out of step with her capabilities
as expressed in the expert evidence that was called on her behalf.

[104]    
Dr. Caillier was the only medical doctor who gave evidence at
trial. Her report acknowledges that at times Ms. Rahimi finds it difficult
to be on her computer or to do freehand drawing. Nevertheless that report
unequivocally states:

Limitations and Restrictions:
Ms. Rahimi is currently taking contract work as an interior designer. It
is my opinion that she is capable of doing so. It is my opinion that she is a
likely physically capable of working on a fulltime basis if she were to find
such work but that during times of symptomatic flares she will likely need to
pace and prioritize what needs to be done.

[105]    
I reiterate that Ms. Rahimi told Dr. Caillier that she had not
turned down any work as a result of her injuries. Dr. Jung did not address
Ms. Rahimi’s capacity to work. Ms. Craig’s report states:

Ms. Rahimi reports that she
must use pacing and breaking strategies at her workplace to manage her pain,
with the result that she sometimes does not finish her work. Although she meets
the essential functional demands of her job, she reports symptom increase,
necessitating pacing and breaking which in turn results in reduced productivity
and incomplete work. To explain further, she is able to sit at work but is
limited in the duration that she can tolerate this work posture, therefore
limiting her ability to meet this demand fully. At the present time Ms. Rahimi
is best suited to part-time work where she is able to pace and break as needed
to enable her to better manage her pain. Ms. Rahimi would be best suited
to a position that is 6 hours per day, 5 days per week that would allow her the
flexibility to break at regular intervals. My suggestion for managing her work day
is as follows: work 1.5 hours break 30 minutes; work 1.5 hours break 1 hour:
work 1.5 hours break 30 minutes; work 1.5 hours. This type of schedule (slight variation
is expected based on symptoms on any given day and work load) would allow Ms. Rahimi
a structured day with scheduled breaks to allow recovery during the day from
work intensive sitting tasks. This type of schedule, if attainable, would allow
Ms. Rahimi to take consecutive contracts or find a longer term employer. Ms. Rahimi
is limited to very light or sedentary work, reducing employment options and
competitive employability overall.

[106]     Three
observations flow from this opinion. First, Ms. Craig is of the view that Ms. Rahimi
can, on a sustained basis, work for six full hours a day. The average workday,
with some breaks and/or lunch, and absent overtime, is likely seven hours or
eight hours. Ms. Rahimi has not worked a fraction of this.

[107]     Second,
though Ms. Rahimi reports she has discomfort from sitting after 30
minutes, Ms. Craig has Ms. Rahimi sitting for four 1.5 hour segments
each day.

[108]     Third, Ms. Craig’s
opinion is premised on the need for Ms. Rahimi to sit on a consistent and
ongoing basis at her workplace. Thus, if such sustained and inflexible sitting
were required, Ms. Rahimi would, in Ms. Craig’s view, be limited to
working a six-hour day. Ms. Craig’s report says “she would not tolerate
constant work intensive sitting which may be required by some employers”. This
description does not in fact accord with what Ms. Rahimi says is required
of her as a designer. Nor, for example, does it accord with the evidence of Ms. Gladwin,
who owns her own design firm, and who was called by the defendants.

[109]     Though
there are times when Ms. Rahimi has to sit at a computer, this is not
invariably or even generally the case. Instead, there are times she has to sit
and times she has to go to meetings, or to a job site or to a showroom. The
evidence of Ms. Gladwin made clear that there is frequent opportunity in
these various contexts to stand up and to move around. Ms. Rahimi’s job as
a designer, by virtue of these various requirements and types of activities, all
of which import some flexibility into the physical requirements of her job, in
fact accommodate her various difficulties to an unusual degree. Thus, though many
employment positions require one to sit at a desk on a sustained day in and day
out basis, this is simply not the case with Ms. Rahimi’s work.

[110]     Furthermore,
Ms. Gladwin made clear that there is limited lifting or carrying required
for the job and that if design samples have to be transported to a meeting her
staff normally use a small cart to do so.

[111]     The
flexibility inherent in Ms. Rahimi’s work has, in fact, been further
enhanced by virtue of the professional relationship that Ms. Rahimi has
with Hectagon. She has neither a start time nor an end time to her day. She can
get up, stretch, and go for a walk as and when she wants. She can organize her
day, subject to the need to get the work she undertakes completed, as she
wishes.

[112]     Ms. Rahimi
may subjectively believe that she has been limited in her ability to work on a
full-time basis. I do not accept, on the whole of the evidence, that this is
so. Accordingly I do not consider that Ms. Rahimi has suffered any past
loss of income.

Future Wage Loss

[113]    
There are three appellate decisions that provide useful guidance on the
legal principles that govern this head of loss. In Gregory, the court,
in eschewing the value of comparator cases in future wage loss claims, said:

[32]      In my view comparator cases are of limited utility
in the assessment of awards for future losses, generally. It is well settled
that an individual’s earning capacity is a capital asset: Parypa v. Wickware,
1999 BCCA 88 at para. 63. An award for future loss of earning capacity
thus represents compensation for a pecuniary loss. It is true that the award is
an assessment, not a mathematical calculation. Nevertheless, the award involves
a comparison between the likely future of the plaintiff if the accident had not
happened and the plaintiff’s likely future after the accident has happened: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995]
B.C.J. No. 644 (C.A.) at para. 8. The degree of impairment to the
plaintiff’s earning capacity depends upon the type and severity of the
plaintiff’s injuries and the nature of the anticipated employment at issue.

[33] 
In valuing the award, the judge must consider the likely duration of the
plaintiff’s prospective working life and must account for negative and positive
contingencies which are unique to each case. The final award must be fair and
reasonable in all the circumstances. This assessment requires a very
fact-intensive, case-specific inquiry. I am persuaded by what Macfarlane J.A.
said in Lawin v. Jones, 98 B.C.L.R. (2d) 126, [1994] B.C.J. No. 2107
at para. 35, about the lack of utility in comparisons to other cases:

[G]iven the fact that we cannot foresee the future, it is
impossible in a case like this to find any comfort in resort to other cases where
the future may be more predictable. Judges will differ, perhaps widely, in
making assessments in cases which have been said to depend on what may be seen
in a crystal ball. What is certain is that a trial judge who hears and observes
the witnesses is in a much better position than an appellate judge to come to a
conclusion as to what is fair and reasonable in the circumstances. …

[114]    
In Reilly v. Lynn, 2003 BCCA 49, leave to appeal ref’d, [2003]
S.C.C.A. No. 221, the majority said:

[100]    An award for loss of earning
capacity presents particular difficulties. As Dickson J. (as he then was) said,
in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251:

We must now gaze more deeply into the crystal ball. What
sort of a career would the accident victim have had? What were his prospects
and potential prior to the accident? It is not loss of earnings but, rather,
loss of earning capacity for which compensation must be made: The Queen v.
Jennings, supra. A capital asset has been lost: what was its value?

[115]    
Finally, in Perren v. Lalari, 2010 BCCA 140, the court described
the two approaches that can be used to assess a claim for the loss of future
earning capacity:

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

[116]     The burden
of proving that there is a real and substantial possibility of a future event
leading to an income loss lies with Ms. Rahimi; Westbroek v. Brizuela,
2014 BCCA 48 at para. 64, citing Perren at para. 32.

[117]     Numerous
considerations inform or are relevant to the loss of Ms. Rahimi’s earning
capacity. At age 32 she has a very limited work history. I do not intend this
as a criticism. She is a relatively recent immigrant to this country and was in
school for many years. The reality, however, is that she is not able to point
to any history of professional success or promotion that foreshadows future
success.

[118]     Though she
graduated on time from Kwantlen University, her grades were relatively average.
Ms. Gladwin, at whose design firm Ms. Rahimi completed a practicum,
reported that her staff had been dissatisfied for various reasons with Ms. Rahimi’s
performance and that she had communicated that dissatisfaction to Kwantlen
University. None of those concerns had anything to do, as Ms. Rahimi
suggested in her evidence, with how Ms. Rahimi dressed.

[119]     Ms. Gladwin
also said Kwantlen University and other schools will recommend their better
students to employers. Sometimes students who do well on a practicum are
invited to work at a design firm. There is no suggestion that such
considerations pertain to Ms. Rahimi.

[120]     Ms. Rahimi
said that her plan had been to work at a design firm for a period of time and to
then perhaps open her own firm. Though there is a real and substantial
possibility that this may occur, what success Ms. Rahimi would, in any
event, have enjoyed is almost impossible to determine. Nevertheless, on the
evidence before me, aspects of this plan may now be more difficult for Ms. Rahimi
to accomplish. Though I have found, and the evidence before me properly
construed indicates, that Ms. Rahimi can work on a full-time basis, she
may struggle with working on a more than full-time basis. Ms. Gladwin who
has had her own design firm for many years said that she has consistently worked
long days and weekends. Certainly this is not uncommon for many small business
owners.

[121]     I also
consider that Ms. Rahimi may at times work with some pain or discomfort.
In Cheung v. MacDonald et al, 2004 BCSC 222, Ehrcke J. concluded that
the loss of capacity to work without pain was properly compensable within a
future wage loss claim (para. 89). See also Rezaei at paras. 97-99.

[122]     There was
no suggestion or evidence that Ms. Rahimi was contemplating another
career. Nevertheless, I believe I can consider that Ms. Rahimi may seek
some other form of employment in the future. Her injuries, and the difficulties
associated with them, may then be more significant.

[123]     The report
from Mr. Carson, an economist retained by Ms. Rahimi, did not specifically
address or adjust for such normal contingencies in the marketplace as job
displacement, layoffs or the prospect of Ms. Rahimi having children.
Nevertheless, I can consider such general contingencies and their impact on Ms. Rahimi’s
future income.

[124]     The
reports of each of Drs. Caillier and Jung indicate that the Accident has made Ms. Rahimi
more vulnerable or susceptible to future trauma or a further car accident. She
is thus at risk of some worsening of her symptoms which may, in turn, impact on
her ability to work.

[125]     At the
same time, Dr. Caillier and Dr. Jung foresee the likelihood of some
improvement, with an active rehabilitation regime, in the management of her
symptoms and pain.

[126]     I consider
that Ms. Rahimi has established some loss of earning capacity. However, the
foregoing considerations, in combination, impede any rigorous assessment of
such loss. I consider, therefore, that the sum of $50,000 addresses the various
contingencies I have identified and properly compensates Ms. Rahimi for
her loss of future earning capacity. That figure, in context, reflects about
one year’s income for an accredited designer with perhaps five years’
experience.

Loss of Housekeeping Capacity

[127]     Awards for
housekeeping capacity may be made for either past or future losses, or both; Kroeker
v. Jansen, 123 D.L.R. (4th) 652, [1995] 6 W.W.R. 5 (B.C.C.A.) at para. 25,
leave to appeal ref’d (sub nom Jansen v. Kroeker), [1995] S.C.C.A. No. 263.
Such claims are different from a future cost of care claim in that they reflect
a “loss of a personal capacity” but are “not dependent on whether replacement
housekeeping costs are actually incurred”: O’Connell v. Yung, 2012 BCCA
57 at para. 67; Westbroek at para. 76. Having said this, such
claims are frequently valued using a replacement cost approach. These claims
are also distinct from a claim for non-pecuniary damages; Poirier v. Aubrey,
2010 BCCA 266 at paras. 31-32.

[128]     In both Kroeker,
at para. 29, and in Westbroek, at para. 76, the Court of Appeal
said that such awards should be valued conservatively or cautiously.

[129]     Ms. Rahimi’s
claim for loss of housekeeping capacity is based on i) a diminished ability
to cook traditional Persian meals which can be quite elaborate and
time-consuming; ii) a diminished ability to do general housekeeping; iii) a
diminished ability to do heavier or seasonal cleaning; and iv) a
diminished ability to do heavier, repetitive gardening.

[130]     These
various claims do not, in many respects, find support in the plaintiff’s
evidence or the expert evidence called on her behalf.

[131]     Ms. Rahimi
did say she has some pain when she cleans her house, that she has trouble
carrying groceries and that she struggles to make more elaborate meals. Aspects
of this evidence were supported by her sister and by Mr. Hakimi.

[132]     Ms. Rahimi
also gave evidence that, because she has a dog, she vacuums and sweeps her
apartment each day for an hour. She told Dr. Caillier that she maintains
her home without assistance. She told Dr. Jung that she generally wakes at
6:30 a.m. and for “the first three hours she will prepare for the day with
cooking, cleaning and sometimes exercise or go for walks”. She did tell Dr. Jung
that some activities such as cleaning a tub or meal preparation, if such
preparation was lengthy, would affect her.

[133]     Dr. Caillier
has opined that Ms. Rahimi does not require any housekeeping assistance,
whether seasonal or otherwise. Ms. Craig has agreed that Ms. Rahimi
does not require help with regular household cleaning but does say that Ms. Rahimi
should get some assistance for heavier and seasonal cleaning and for heavier or
repetitive gardening.

[134]     Ms. Rahimi
also told Dr. Caillier that she did all of the cooking she required. She
told Ms. Craig, however, that she found some housework, including meal
preparation, physically challenging, though Ms. Craig’s report does not
suggest that Ms. Rahimi requires any cooking assistance.

[135]     Aspects of
Ms. Rahimi’s own evidence, as well as the opinions of each of Dr. Caillier
and Ms. Craig thus help give some context to this component of the
plaintiff’s claim.

[136]     I do
accept that hosting dinner parties, something Ms. Rahimi has enjoyed doing
in the past, would be more difficult for her. Having said this, based on her
evidence, she would generally not give such parties or create more lavish meals
when she was busy or, for example, in school. I also accept that certain forms
of heavy cleaning may be somewhat more difficult for Ms. Rahimi.

[137]     The issue
of gardening assistance is problematic in several respects. There was no
evidence that Ms. Rahimi has any interest in gardening. She also presently
lives in an apartment, though I accept that she may buy a home at some point in
the future.

[138]     The
plaintiff’s claim also seeks, in respect of these various subcategories of loss
of capacity, to ascribe what is, in the circumstances, an unrealistic
precision. Thus, for example, the issue of gardening assistance required generation
of an annual dollar amount, which was calculated to take effect in eight years,
when Ms. Rahimi notionally might buy a home, and it was thereafter
calculated for another 42 years, or until Ms. Rahimi is 82 years old. I consider
that it is unlikely, quite apart from the Accident, that Ms. Rahimi would
have done either heavy cleaning or heavy and repetitive gardening into her 80s.

[139]     I also reiterate
that if Ms. Rahimi conscientiously undertakes an active rehabilitation
program, her ongoing ability to perform her various household activities is
likely to be enhanced.

[140]     In the
result, I consider that a global amount of $10,000 properly compensates Ms. Rahimi
for all aspects of her loss of housekeeping capacity claim. This figure includes
both a past and a future component.

Cost of Future Care

[141]     The test
for determining the appropriate award for the costs of future care is an
objective one based on medical evidence. For an award of future care: 1) there
must be a medical justification for claims for costs of future care; and 2) the
claims must be reasonable: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 at 84, [1985] B.C.J. No. 2762 at para. 199 (S.C.),
aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.). In Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at paras. 21-22, when
addressing the assessment of costs of future care, Chief Justice McLachlin
confirmed that courts rely on “evidence as to what care is likely to be in the
injured person’s best interest”, and that the measure of such care is “objective,
based on the evidence”. That same test was recently applied in Shapiro v.
Dailey, 2012 BCCA 128 at para. 51.

[142]     The
following additional legal principles govern an award for future care costs:

a)       An
award of future care costs should be reasonable and the award must be moderate
and fair to both parties; see Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229 at 241-243.

b)       Common
sense should inform claims for the costs of future care, however much they may
be recommended by experts in the field; see Penner v. Insurance Corporation
of British Columbia, 2011 BCCA 135 at para. 13.

[143]    
A further principle is particularly important in this case. Counsel for
the plaintiff argued, in his written submissions, that once “a care item is
found to be justified and reasonable, that is the end of the analysis”. In
support of that principle, he relied on the following statement in Andrews at
246-7:

It is not for the Court to
conjecture upon how a plaintiff will spend the amount awarded to him. There is
always the possibility that the victim will not invest his award wisely but
will dissipate it. That is not something which ought to be allowed to affect a
consideration of the proper basis of compensation within a fault-based system.
The plaintiff is free to do with that sum of money as he likes.

[144]     The
foregoing statement does not have the effect that counsel for Ms. Rahimi
contends. In O’Connell, the court concluded that the trial judge had
erred in concluding that “future care costs are payable whether or not they may
be incurred in the future” (para. 68).

[145]    
In “assessing what is reasonably necessary to promote
the plaintiff’s health the court should consider whether the plaintiff would
likely use the items or services in the future”: Prempeh v. Boisvert,
2012 BCSC 304 at para. 107. It has been found that if
this factor is not taken into consideration then “determining what [the
plaintiff] needs would at best be highly speculative and at worst a futile
exercise” (Coulter (Guardian
ad litem) v. Leduc, 2005 BCCA 199 at para. 85,
leave to appeal ref’d (sub nom Coulter v. Ball), [2005] S.C.C.A. No. 289). This assessment can be based on
evidence of the plaintiff’s attitude towards a care regime and/or the
plaintiff’s failure to follow that care regime in the past. In Izony
v. Weidlich, 2006 BCSC 1315, Masuhara J. said:

[74]      I
agree that future care costs must be justified as reasonable both in the sense
of being medically required and in the sense of being expenses that the
plaintiff will, on the evidence, be likely to incur (see generally Krangle) I therefore do not think it appropriate to make provision for items or services
that the plaintiff has not used in the past (see Courdin at 1] 35), or for items or services that it is unlikely he will use
in the future. The evidence at trial and the clinical records clearly indicated
Mr. Izony has expressed resistance to using items or availing himself of
services that were medically recommended.

[146]     Evidence that a plaintiff likely won’t engage in a recommended care
regime has been a basis for both refusing awards and for applying negative
contingencies to reduce the quantum of the award sought. A negative contingency
was used in O’Connell to accommodate the fact
that though the plaintiff was refusing the assistance of home care at the time
of trial because her husband was assisting her, it was unlikely her husband
would be able to care for her indefinitely. Similarly, in Gignac v.
Insurance Corporation of British Columbia, 2012 BCCA 351, a general 20% reduction was applied to the cost of psychological
counselling as the evidence suggested that the plaintiff would only “consider”
going to counselling, and not that he was actually committed to going (para. 54).
However, in both Izony at para. 74 and Muhammed
v. Ogloff, 2013 BCSC 496 at paras. 200-201, this
court fully rejected claims for the cost of various therapies based on evidence
that the plaintiff would not take advantage of those therapies in the future.

[147]     In this
case the foregoing principles are important because the plaintiff seeks all of
the future care costs suggested by each of the various experts who addressed
the issue.

[148]     Thus, Dr. Caillier
emphasized Ms. Rahimi’s need for an active rehabilitation program
consisting of exercise and swimming together with some massage and physiotherapy.
Dr. Jung added chiropractic treatments and a comfort bike. Ms. Craig
recommended yoga and an aqua fit class. Several experts recommended that Ms. Rahimi
get advice on how to set up her workplace from an ergonomic perspective. The
experts also recommend some ongoing massage or physiotherapy.

[149]     I do not
consider that the plaintiff would engage in all such forms of activity at all
times. This is partly because to do so would be unrealistic. Dr. Caillier
has recommended that Ms. Rahimi engage in an exercise program at least
three to four times a week for at least an hour. It is unlikely that the
plaintiff would also concurrently cycle and go to yoga and go to aqua fit
classes. If she did so she would be more likely to do so intermittently or to
fit them into a coherent schedule. She is also unlikely to do all of these
things into her early 80s.

[150]     These
conclusions are also supported by Ms. Rahimi’s behaviour. For example,
during the period from February 2013 to April 2013, she saw a personal trainer.
She stopped going to massage therapy entirely during this period.

[151]     Furthermore,
having heard Ms. Rahimi’s evidence, I do not accept that she would engage
in all of these forms of activities to the extent recommended or, in some cases,
at all.

[152]     I have
described her reaction to a “comfort bike”. Though both Dr. Caillier and Ms. Craig
discussed ergonomic improvements to her work situation, she told both that she
had a good working situation. She was asked about aqua fit classes in her cross-examination.
She said she had once seen such a class and had tried to imitate the exercises.
She found them hard to do and did not want to try further. In response to
whether she had seen Dr. Caillier’s recommendations relating to exercise
she said that if she didn’t feel comfortable she would “decide whether to
follow the recommendation”.

[153]     Still
further, she presently lives in a building that has both an exercise centre and
a pool which would likely, at least for the present, accommodate many of the recommendations
being made for her. In addition, many people, at some point, join a health
club, or pool, a recreation centre or go to yoga simply to advance and preserve
their good health. The plaintiff’s cost of future care claim is premised on the
assumption that Ms. Rahimi would have incurred no such expenses in
relation to maintaining her fitness in the future. With this backdrop, I turn
to the specifics of the plaintiff’s future loss claim.

a)       Kinesiologist

[154]     Dr. Caillier
recommended Ms. Rahimi see a kinesiologist for 15 sessions in year one and
for a further four to five sessions per year in the ensuing three years. These
costs would total about $2,500. Because this training appears to be fundamental
to Ms. Rahimi’s future well-being, I accept that she will take such
classes and award her $2,500.

b)       Gym, Pool and Pool-based Exercises

[155]     The
plaintiff seeks both the cost of a recreational centre membership, which could
give her access to a gym and a pool, as well as the costs of aqua fit classes.
I do not consider, for the various reasons I have described, that Ms. Rahimi
will use such facilities and classes throughout the period that spans her life
expectancy. I consider that an amount of $10,000 reasonably provides for this
recommendation.

c)       Massage Therapy and Chiropractic Treatments

[156]     Dr. Caillier
and Dr. Jung support Ms. Rahimi going to a massage therapist six
times a year. Dr. Jung proposes two to four chiropractic treatments a
year. The plaintiff’s calculations are based on her requiring such treatments
over the next 50 or so years. I do not believe or accept that she would do both
at all times throughout this period of time and would award Ms. Rahimi
$7,500 for such treatments.

d)       Ergonomic Assessment

[157]     Such an
assessment, as well as an ergonomic chair, is recommended by different experts.
I do not accept that Ms. Rahimi would commission such an assessment every
seven years during her working life. I consider there is a substantial
possibility she may not do so once. I would award her $500 for this item.

e)       Advil

[158]     Ms. Rahimi
reasonably uses Advil to manage her headaches. Dr. Caillier’s prognosis is
that with exercise, Ms. Rahimi’s headaches “will result in improvement
with a lessening in intensity and frequency”. I would award Ms. Rahimi $100
for this care item.

f)        Comfort Bike

[159]     Dr. Jung
recommended the use of such a bike, the cost of which can vary from $200 to
$1,000. I believe there is a substantial possibility Ms. Rahimi will not
acquire such a bike. I would award her $200 for this care item.

g)       Yoga

[160]     Yoga was
recommended or endorsed by Ms. Craig and Dr. Caillier. Ms. Rahimi
appears to enjoy yoga. I consider that she is, however, unlikely to
consistently take yoga classes in combination with the other activities that
have been recommended for her and that this award provides for. I would award Ms. Rahimi
$5,000 on account of this care item.

h)       Psychologist

[161]     Dr. Caillier
and Dr. Jung recommended that Ms. Rahimi have access to a
psychologist to address fear avoidance and pain management. Though no cost for
this item was provided, courts will, on occasion, “ball park” an expense; see Chaban
v. Chaban, 2009 BCSC 87 at paras. 65-73; Loewen v. Bernardi, 93
B.C.L.R. (2d) 242, [1994] B.C.J. No. 1169 (C.A.) at paras. 24-27. I
award $1,000 for this care item.

[162]     The total
award I have made on account of Ms. Rahimi’s future care costs is $26,800.00.

Special Damages

[163]     The
parties were able to agree on most of the plaintiff’s special damages. This
included her attendance at massage, physiotherapy and active rehabilitation. It
includes the cost of the yoga classes that Ms. Rahimi has attended to date
and some taxi cab expenses.

[164]     The
defendants question Ms. Rahimi’s acupuncture expenses, an amount of
$401.44, and certain other cab fares. Ms. Rahimi testified that her
acupuncture treatments assisted her. In the circumstances I consider this expense
as well as the further cab fares reasonable.

[165]     The
plaintiff’s total award for her special damages is $5,772.54.

Summary

[166]     I am
satisfied that the amount of $140,572.54 fairly and reasonably compensates Ms. Rahimi
for her loss.

[167]     Counsel
for the parties agreed that they would deal with the tax and other adjustments
to my award that may be necessary. If they encounter any difficulty with this,
I am available to assist them further. The issue of costs arising from this
action was not addressed by counsel.

“Voith
J.”