IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140429

Docket: M127540

Registry:
New Westminster

Between:

Krystyna Bilanik
and Katarzyna Bilanik

Plaintiffs

And

Juan Venture
Ferman

Defendant

– and –

Docket: M127542

Registry:
New Westminster

Between:

Krystyna Bilanik

Plaintiff

And

Cecil Stanley
Jones, Zeemac Vehicle Lease Ltd. and
Jones Food Store Equipment Ltd.

Defendants

Before:
The Honourable Mr. Justice Harvey

Oral Reasons for Judgment

Introduction

[1]            
The plaintiff, Krystyna Bilanik, claims damages for injuries sustained
in two motor vehicle accidents. The first occurred on May 16, 2008 when the
plaintiff was a passenger in a stationary vehicle struck by the defendant, Juan
Ferman (the “first accident”). Liability for this accident has been admitted on
behalf of Mr. Ferman. The only issue is what damages, if any, were
sustained by the plaintiff.

[2]            
The second accident occurred August 11, 2008 in the parking lot of the
Impact Plaza in Surrey (the “second accident”). The plaintiff was driving a 1997
Toyota Corolla. While attempting entry into a parking stall, she was struck by
a Ford van driven by the defendant, Cecil Jones, owned by the defendant, Zeemac
Vehicle Lease Ltd. and leased to the other defendant Jones Food Store and
Equipment Ltd.

[3]            
Liability for the second accident is hotly disputed; the issues that arise
include fault for the accident and the assessment of the plaintiff’s further
injuries, which are said to have endured to the date of trial, some five years
later.

[4]            
As well, the defendant, Jones, argues that the plaintiff has failed to
properly mitigate her loss by failing to follow medical advice. Hence,
according to both defendants, there ought to be a deduction from the award of
damages to reflect her failure to follow the necessary steps to achieve optimal
recovery.

[5]            
All parties agree that the plaintiff’s claimed injuries are indivisible
as between the two actions and, in the result, ought to be assessed globally.

The Plaintiff

[6]            
The plaintiff is a 54-year-old homemaker who works, part-time, in the
employ of her husband. He is a tile setter. The plaintiff’s role in his
business was and remains primarily clerical in nature. She occasionally
assisted at a job site providing manual labour.

[7]            
She is of Polish descent, having immigrated to Canada in the early
1990s. She is the mother of one adult child.

[8]            
Since arriving in Canada she has been both a homemaker and assistant to
her husband.

[9]            
She was involved in a previous accident in 2003 that resulted in soft
tissue injuries, predominantly to the left side of her body. She acknowledged
that she continued to experience some level of ongoing discomfort as a result
of these injuries but was imprecise as to the extent of her residual symptoms
immediately prior to May 2008.

[10]        
However, by her own report, it is clear she was still suffering,
intermittently, from symptoms relating to the 2003 accident as of May 2008,
including pain on the left side of her head, her left shoulder and left hip.

[11]        
The residual symptoms from the 2003 accident did not preclude the
plaintiff from engaging in housework, assisting her husband in his tile setting
business or engaging in her various recreational activities, which included
walking distances, dancing, in-home entertaining and skiing.

[12]        
Since the first accident in 2008, the plaintiff says she has suffered
interruption of both her vocational and avocational pursuits due to increased
pain in the previously affected areas. Added to her symptoms since the August
2008 accident are low back pain and chronic headaches.

[13]        
At the commencement of the trial, the plaintiff abandoned her claim for
income loss resulting from the accidents.

The Effects of the Accidents on the Plaintiff

[14]        
In the first accident, the plaintiff was a passenger in a vehicle owned
by her but driven by her daughter, Kasha, when it was struck from behind by the
Ferman vehicle at or near the intersection of Highway number 10 and 152^nd
Street, Surrey, British Columbia.

[15]        
The accident occurred when the plaintiff’s vehicle was stopped at a traffic
control device. The defendant rear-ended the plaintiff’s vehicle causing her to
move forward and then back in the passenger side seat. She was restrained by a
three-point seatbelt.

[16]        
Damage to the plaintiff’s vehicle was minimal. The estimated cost of
repairs was under $800.

[17]        
The plaintiff was able to emerge from her vehicle and discuss the
incident with the defendant, Mr. Ferman. She apparently asked him for
money to pay for repairs to her vehicle although none were visible on the
photographs of her car taken at the ICBC office the following day.

[18]        
According to the plaintiff, both she and her daughter sustained injuries
in the accident. The plaintiff attended her then family physician, Dr. Cielak,
shortly following the accident and reported left shoulder and left leg pain
accompanied by headaches, neck pain and hip pain.

[19]        
She was assessed by Dr. Cielak and was prescribed physiotherapy. On
June 23, 2008 she was seen at Guilford physiotherapy for a further assessment.
She advised the treating physiotherapist that bending aggravated her pain and
that her symptoms were interfering with her ability to assist her husband, at
least in the physical aspects of the job. She reported that the pain was
intermittent and was decreasing at the time of her attendance. She was treating
herself with Advil taken twice a day but no other medications.

[20]        
Her daughter had applied for medical treatments arising from injuries
claimed to have been sustained by her in the same accident and was told by ICBC
that no medical treatments would be provided, presumably because of the low
impact of the collision. The plaintiff, erroneously, it would appear, assumed
she would similarly not be covered for physiotherapy and made no further
efforts to undergo treatment until after the second accident on August 11,
2008.

[21]        
In addition to the physiotherapy, the plaintiff’s physician prescribed
Flexeril and Naproxen after the first accident. The former is a relaxant
designed to assist the plaintiff with her complaint of sleeplessness. The
latter is a muscle relaxant to deal with the diagnosis of cervical strain.

[22]        
The prescriptions were filled and provided some relief to the plaintiff
in the intervening period between the first and second accidents.

[23]        
The plaintiff offered little commentary on how the first accident
affected her lifestyle. She was unable to do any heavy lifting associated with
her husband’s business but that appears, from the totality of the evidence, to
have been an infrequent requirement. She testified that bending caused her back
discomfort and headaches.

[24]        
She said little in her evidence of any impairment to her recreational
pursuits so I am left to conclude these were substantially unaffected by
symptoms arising from the first accident.

[25]        
It would appear she was experiencing some improvement up to the date of
the second accident.

[26]        
Following the second accident, which I shall describe in greater detail
further on in these reasons, her symptoms were markedly increased. She reported
pain over the whole of her body accompanied by headaches. Again, she complained
of sleep disruption.

[27]        
She attended a walk-in clinic and saw Dr. Hartwig. On examination,
she demonstrated palpable spasms in her upper back and lower back. He diagnosed
a mild to moderate soft tissue injury and “exacerbation of pre-existing and
asymptomatic osteoarthritis”.

[28]        
He recommended treatment with analgesics and physiotherapy. She
undertook a course of physiotherapy, taking 24 treatments in total. By October
2008, she reported that she had returned to her ‘usual desk job’; presumably,
bookkeeping for her husband’s business.

[29]        
She saw Dr. Hartwig periodically in the period following the second
accident for approximately one year and then there was a hiatus of
approximately six months until her next visit. By then, March 2010, she was
reporting a feeling of tiredness and headaches. She complained of a feeling of
heat in her neck.

[30]        
In addition to the physiotherapy, she also took nine massage therapy
treatments.

[31]        
Despite these complaints, she reported that she had returned to
assisting her husband with clean up after construction. She told Dr. Hartwig
that she was exercising at home and stretching. His examination in March 2010
demonstrated a normal range of movement in the afflicted areas. He diagnosed
fibromyositis and headaches.

[32]        
By January 2011, her low back pain had substantially improved but she
continued to have headaches, stiffness and pain in the area of her left upper back
and shoulder.

[33]        
Dr. Hartwig prepared a report on her condition and prognosis in May
2011, almost three years following the first accident. He opined that she still
had subjective complaints as described above and, in his opinion, would likely continue
to suffer some interference with both work and domestic chores in the future by
virtue of her complaints.

[34]        
The plaintiff reported that these residual symptoms have interfered with
recreational pursuits as well. She says she was originally unable to pursue her
hobby of long walks and now walks a much shorter distance than before. She also
stopped dancing at Polish functions and has curtailed in-home entertaining.

[35]        
In September 2013, the plaintiff took a course of ten chiropractic
treatments at a cost of $475. They provided no additional relief. None of the
medical professionals she saw at the time recommended chiropractic treatment. Dr. Hershler,
the independent physiatrist engaged by her counsel, advised her to get core
conditioning with a personal trainer. Dr. Hartwig suggested further
physiotherapy might be required but made no specific recommendation.

[36]        
According to the plaintiff, her present condition is much the same as it
was in mid-2011. Her major complaint is that of daily headaches. When acute,
she is forced to rest mid-day. She treats the headaches with a daily dose of
Ibuprofen and occasional afternoon rest.

[37]        
Her remaining symptoms continue to interfere with her social life. She
performs all the same domestic duties as prior to the accident albeit at a
slower pace.

[38]        
No further treatment is contemplated.

The August 11, 2008 Accident

[39]        
The second accident occurred when the plaintiff was attempting to park
her Corolla vehicle in a parking stall in front of the Pharmasave located at
the Impact Plaza adjacent to 152^nd Street and 100^th
Avenue in Surrey, British Columbia.

[40]        
The plaintiff testified that she was proceeding into the Plaza parking
lot and was searching for a parking stall near the Pharmasave. While proceeding
northbound along the roadway parallel to the M & M Meat Shop and the
Pharmasave, she saw an unoccupied parking stall to her right and signaled to
evidence her intention to pull into it.

[41]        
She described the maneuver that followed as an arcing of her vehicle to
the left so that she could enter the parking stall which ran perpendicular to
the roadway on which she was traveling. There was a centerline separating
northbound and southbound traffic. While first denying that she had crossed the
centerline of travel at all, the plaintiff later acknowledged that it was
possible that a small portion of her vehicle crossed over the centerline as she
arced to the left before she began her turn right to go into the parking lot.
Throughout the whole of the maneuver she described, she says she was going
slowly.

[42]        
The stalls on each side of the unoccupied parking space were occupied by
other vehicles, thus necessitating the head-on approach into the vacant space.

[43]        
She believed she had her foot on the brake as she began to enter the
parking stall. However, later in her evidence she seemed unsure of where her
foot or feet were located. It was possible, she thought, that she had one foot
one each of the brake and the accelerator. In any event, she was suddenly
struck heavily at the right-hand side of her vehicle by Mr. Jones’ much
larger vehicle. She never saw the defendant’s vehicle before the collision.

[44]        
Here, I need to say something of the plaintiff’s ‘long-term memory
deficit’. She testified that she had issues with long-term memory.

[45]        
The plaintiff volunteered that she had issues with her memory and on
various occasions throughout her testimony, both in direct and cross-examination,
was simply unable to recall information. For example, she was unable to recall,
with any degree of specificity, the extent to which she continued to experience
discomfort from the 2003 accident.

[46]        
The plaintiff originally testified that she thought she had hit her head
in the first accident; however, her discovery evidence, put to her during cross-examination,
suggested she did not. When confronted with the inconsistency she simply stated
that she did not remember.

[47]        
I accept that her lack of specificity is as a result of a memory deficit,
not an attempt to evade questioning; nevertheless, I agree with the submission
that I need to view her evidence with caution, particularly where it conflicts
with the evidence of others.

[48]        
The plaintiff testified that immediately following the impact between
her and Mr. Jones, she felt a sensation like she was “flying"
followed by a further collision between her vehicle and a Toyota Camry parked
to the left of her intended parking space. Her vehicle struck the Camry at its
rear with sufficient force to cause the Camry to jump the curb and collide with
one of the display windows of the Pharmasave.

[49]        
The initial collision between the Corolla and the Ford shattered the
glass of the plaintiff’s passenger’s side front window, causing glass to spray
on to the plaintiff. Debris was spread about the northbound lane of the parking
lot adjacent to where the Ford van came to rest.

[50]        
The plaintiff was able to emerge from her vehicle after several moments.
She thought she may have briefly lost consciousness. Nonetheless, she had the
wherewithal to attempt to find a witness to the incident and spoke briefly with
a customer of the Pharmasave who exited the store immediately following the
incident. She obtained that person’s telephone number but on later
investigation determined that the ‘witness’ was only able to describe the
second collision between the plaintiff’s vehicle and the Camry and did not see
the initial collision between her Corolla and the Ford van.

[51]        
She spoke to Mr. Jones but had little recollection as to the nature
of their conversation. She testified Mr. Jones said “I’m sorry” or words
to that effect. She believed that the police had been called but later found
that only the fire Department attended.

[52]        
Eventually both she and Mr. Jones were asked to move their vehicles
as both were impeding the flow of traffic in the travel road portion between
the parking stalls.

[53]        
She reported the accident to ICBC, which eventually advised that she was
100% at fault for the accident. The damage to the plaintiff’s car was
extensive; with an excess of $6000 of damages, her vehicle was written off and
never repaired. She was paid the difference between the car’s write-off value
and the $300 deductible contained in her collision insurance.

[54]        
The damage to the right hand side of her vehicle extended from just
behind the rear wheel well to the front right hand passenger door. The most
significant damage to her vehicle was toward the front. As noted, the passenger
window shattered leaving glass debris about the parking lot roadway. The glass
debris was several feet away from the centre line. No measurements were taken
but the distance appears to be no more than three to four feet when viewed from
the photographs taken at the scene.

[55]        
The plaintiff resisted any suggestion that the entirety of her vehicle
had crossed the centerline before attempting to negotiate entry into the unoccupied
parking stall. She also disagreed that she stepped on the gas following the
impact between her vehicle and that of the defendant thus causing her to move
forward into the Camry with sufficient speed to move the Camry over the
sidewalk into the front of the Pharmasave. She was not cross-examined on her
evidence that she initiated her right hand turn signal before beginning her
turn.

[56]        
She acknowledged that she did not utilize either her rear or side view mirror
to ascertain the extent of traffic behind her as she began her right turn
toward the parking stall; nor did she check to her right before beginning her
entry to the parking stall.

[57]        
She denied defence counsel’s suggestion that she was driving down one of
the parking aisles and crossed the roadway on which the Jones vehicle was
proceeding northbound so as to enter the parking stall.

[58]        
Mr. Jones, the defendant, had little recollection of the
circumstances leading to the accident. On the date of the accident he was
working at T & T food store repairing their refrigeration system. He parked
his Ford 250 van in the parking lot and was leaving to attend another job
around 3:00 p.m.

[59]        
Immediately prior to the collision, he was traveling on the roadway
portion of the parking lot northbound towards an exit; the same direction as
the plaintiff testified she was traveling in.

[60]        
Mr. Jones says he did not see the plaintiff’s vehicle until the
actual collision occurred or milliseconds before. He believes he attempted to
break and steer his vehicle away from the collision, to his right. He offered
no explanation as to why he did not see her before the collision or where her
vehicle came from.

[61]        
He does not believe his vehicle moved after impact. Photographs were
taken of its resting position following the accident displaying its left rear wheel
at or over the centerline with the vehicle pointing towards the Pharmasave
drugstore.

[62]        
He described the collision, including contact between the plaintiff’s
vehicle and the Camry, as being one continuous event. Nonetheless, he testified
that the plaintiff’s vehicle seemed to accelerate after coming into contact
with his and, in his view, continued to accelerate as it pushed the Camry over
the sidewalk into the front window of the Pharmasave. He said he could hear her
vehicle’s engine revving as it did so.

[63]        
He gave no estimate as to his speed, or that of the plaintiff’s vehicle,
or as to when he began braking. He acknowledged that the glass strewn about his
left front tire came from the passenger side window of the Corolla, which must
have broken at the point of contact.

[64]        
He acknowledged attending at the plaintiff’s vehicle and speaking to
her. He told her he was sorry but can recall nothing else of the conversation
including its location; specifically whether she was still in her vehicle when
he spoke to her.

Expert Opinion as to the August 11, 2008 Accident

[65]        
Both parties engaged accident reconstruction analysts to opine on the
circumstances surrounding the second accident; specifically the speed, location
and paths of travel of each of the two vehicles involved.

[66]        
Amrit Toor, the plaintiff’s analyst, testified as to the speeds
calculated for each of the vehicles pre-and post-impact. He determined this from
what he described as the kinetic energy lost by virtue of the damage to the
vehicles and their resultant positions.

[67]        
Unlike his counterpart, Mr. Goulet, Mr. Toor worked backward
from the damage done to the Corolla. He determined the vehicles’ speeds based
on the assumption the Camry was pushed over the curb into the Pharmasave
storefront as a result of energy transferred from the plaintiff’s vehicle as a
result of its contact with the Jones vehicle.

[68]        
He made no allowance for the suggestion that the plaintiff’s vehicle
accelerated after the defendant’s vehicle came into contact with her vehicle as
a result of the plaintiff accelerating immediately after she was struck.

[69]        
When asked if this was possible during cross-examination, Mr. Toor
was certain it was not; he pointed to what he considered to be insufficient
time for the plaintiff to bring her foot over from the brake to accelerate her
vehicle into the Camry while eventually stopping it some 4.6 metres from when
she was first struck by the Jones vehicle. In cross-examination, Mr. Toor
acknowledged such was a possibility but not the most likely scenario.

[70]        
In short, he viewed both collisions as arising from the single contact
between the Jones and Bilanik vehicles and arrived at his opinions as to their
speeds based on this hypothesis.

[71]        
He opined that the pre-accident speed of the plaintiff was between 10 to
15 km/h and that of the defendant to be between 27 and 33 km/h. On impact,
energy was transferred from the defendant’s vehicle, thus lowering his speed to
that of the plaintiff’s vehicle and increasing her speed to approximately 26
km/h. Mr. Toor’s opinion was that this was sufficient to enable the
plaintiff’s vehicle to generate enough force to push the parked Camry over the
sidewalk.

[72]        
Through a series of diagrams, Mr. Toor opined as to the respective
positions of the plaintiff’s and defendant’s vehicle at various locations prior
to the point of impact. The point of impact was determined by the presence of
the glass debris located immediately surrounding the left front tire of the
Ford van.

[73]        
Mr. Toor was of the view that the point of initial contact between
the parties’ vehicles was the left front bumper of the Ford van and just behind
the rear right wheel of the Corolla. Given the location of the glass debris so
close to the centreline that seems unlikely. I conclude the point of impact was
closer to the front of the plaintiff’s vehicle.

[74]        
Mr. Toor was steadfast in his opinion that he had correctly assessed
the respective speeds of the vehicle; the side impact between the Corolla and
the Ford van was explained by the wide arcing turn said to of been made by the
plaintiff when she saw, and then made ready to enter into, the unoccupied
parking spot adjacent to the Camry.

[75]        
Mr. Goulet, the defendant’s reconstruction analyst, was of a
different view. He put the area of contact between the two vehicles as the
defendant’s left bumper and the plaintiff’s right passenger side at or near the
front passenger door.

[76]        
He offered different opinions as to the parties’ respective speeds and
opined that the plaintiff had accelerated immediately after they contacted one
another so as to gain sufficient speed to push the Camry over the sidewalk to
where it came to rest.

[77]        
Mr. Goulet estimated the pre-collision speed of the Corolla at 10-15
km/h and the pre-collision speed of the Ford van at 15 to 25 km/h. The
collision caused the Corolla to increase its speed but was insufficient,
without acceleration on the part of the plaintiff, to have pushed the Camry
over the sidewalk into the storefront of the Pharmasave.

[78]        
Both analysts utilized aerial photographs, depictions of the vehicles’
damage, and photos of both vehicles in relation to the Camry, in arriving at
their respective estimations of both the plaintiff’s and defendant’s speed
immediately before and immediately after their vehicles came into contact.

[79]        
Although somewhat varied as to the defendant’s speed, Mr. Goulet generally
agreed with Mr. Toor’s opinion as to the pre-accident speeds of both
parties’ vehicles and as to their pre-accident locations northbound on the
parking lot roadway running at right angles to the parking stall that the
plaintiff was attempting to enter immediately before she was struck.

[80]        
Neither of the experts was significantly at odds as to the angle or location
of the collision between the Corolla and the Ford. Mr. Goulet opined the
Ford initially made contact with the Corolla on its right front passenger side,
not behind the right wheel well as Mr. Toor suggested.

Reconciliation of the Expert’s Opinions

[81]        
In my view, the determination of the point of contact between the
parties’ two vehicles and whether or not plaintiff hit the accelerator
following contact with the Jones vehicle does little to inform the result as to
the issue of liability of the first collision (between the plaintiff’s and Mr. Jones’s
vehicles) and the resultant damages to the plaintiff.

[82]        
Having said that, I find that Mr. Goulet’s view as to the point of
impact between the two vehicles is the more correct one given the damage was
most significant at the right front door of the plaintiff’s vehicle and, more
importantly, the glass debris was so close to the centreline dividing the
travelled roadway.

[83]        
As to whether the plaintiff accelerated immediately following the
initial collision, the defendant correctly concedes that he is unable to point
to any independent injuries sustained by the plaintiff as a result of the force
with which she contacted the Camry. The defendant does not argue that the
second collision would not have resulted after the initial contact between the
plaintiff and defendant’s vehicle; it is only the force of the collision that is
an issue.

[84]        
That being said, if there is no practical consequence of that secondary
determination, the force, as opposed to the cause of the collision between the
plaintiff’s vehicle and the Camry, the issue is moot.

[85]        
Nonetheless, I prefer the opinion of Mr. Goulet. He, in my view,
considered both scenarios, specifically whether the Corolla-Camry collision was
wholly caused by the Ford van contacting the Corolla or whether the actions of
the plaintiff, specifically post-collision acceleration, caused her to reach a
speed sufficient so as to move a Camry. Mr. Toor, on the other hand,
simply worked backwards from the vehicles’ final resting position with only one
hypothesis in mind, that being that the speed sufficient to cause the Corolla
to move the Camry was generated by the force of the initial collision between
the Ford van and the Corolla. That informed his opinion as to the speed of each
of the plaintiff’s and defendant’s vehicle pre-collision.

[86]        
I am strengthened in my view that Mr. Goulet’s view is the proper
one by concluding that the point of impact is evidenced by the broken glass
depicted in the photographs showing the left front corner of the Ford van at or
near the point of impact. The glass came from the shattered front right
passenger window leading, in my view, to the inevitable conclusion the vehicles
came into contact as described by Mr. Goulet.

[87]        
That conclusion flows from the combined evidence of Mr. Goulet and
the defendant that there was an acceleration, albeit involuntary, by the
plaintiff’s vehicle causing her to hit the Camry at a speed higher than would
have been expected had the plaintiff’s foot been on the brake. This was
corroborated somewhat by the plaintiff’s own description of her vehicle
‘flying’ after the initial contact.

[88]        
Despite my agreement with Mr. Goulet as to the circumstances of the
second collision, it does not mean I accept the defendant’s submission that the
plaintiff was negligent in the result, even if the defendant were to have proven
that her injuries were heightened as a result of the force of the Corolla-Camry
collision.

[89]        
It was unclear from the plaintiff’s evidence whether she had her foot on
the brake or accelerator as she negotiated the parking stall. At one point she
suggested she had her foot on each.

[90]        
It does not amount to negligence, in my view, to have involuntarily
accelerated after a surprise collision. In any event, negligence on the part of
the plaintiff with respect to the Corolla-Camry collision only takes on
importance if it can be shown that her injuries were heightened as a result of
her increased speed by virtue of her acceleration.

[91]        
There is nothing in the evidence suggesting her injuries were heightened
from what they otherwise would have been, nor has the defendant, Mr. Jones,
argued such.

Findings of Fact for the August 11, 2008 Accident

[92]        
There are no independent witnesses to this accident to shed light on the
locations and speeds of each of the parties immediately prior to the accident.

[93]        
In the absence of any evidence to the contrary, despite some concerns as
to the reliability, generally, of the plaintiff, I am driven to the conclusion
that she was proceeding slowly, as she testified, northbound in the laneway
which runs parallel to the storefronts of the Impact Plaza, specifically M
& M Meat Shop and the Pharmasave, as she was attempting to find a parking
slot. Further, absent any evidence to the contrary, I find she signalled her
intention to turn right into the parking stall adjacent to the Camry she later
struck.

[94]        
The defendant, I find, was traveling in the same direction. He was
unable to offer any meaningful evidence as to his speed other than that it was
appropriate for the conditions extant at the time; the conditions being that he
was driving towards the exit of the parking lot.

[95]        
I also conclude that the collision occurred in that same northbound
lane. The left front of the defendant’s vehicle struck the right hand side of
the plaintiff’s vehicle at or near the front passenger door as the Corolla was
maneuvering its way into the parking stall.

[96]        
I reject the plaintiff’s evidence that she remained substantially in the
northbound lane as she began her right hand turn into the parking stall. I do
so based upon the combined effect of the evidence of Mr. Toor and Mr. Goulet,
both of whom opine that her vehicle was substantially, if not entirely, in the
southbound lane. As well, the almost right angle of the impact between the two
vehicles only makes sense if in fact Ms. Bilanik pulled her vehicle
significantly to the left so as to directly enter into the vacant parking stall
she observed to her right. Were it otherwise, I conclude that contact between
her vehicle and that of the defendant would have occurred at the rear, not the
side of her vehicle.

[97]        
In maneuvering as she did, she caused her vehicle to either entirely or
substantially cross into the southbound lane of travel laneway and then turned
right so as to enter the parking stall in front of the Pharmasave.

Liability for the August 11, 2008 Accident

[98]        
The defendant submits that such a tactic is in breach of ss. 150(1)
and 151(b) of the Motor Vehicle Act, R.S.B.C. 1996, c.318, which read:

Driver on right

150 (1) The driver of a vehicle must confine the course of
the vehicle to the right hand half of the roadway if the roadway is of
sufficient width and it is practicable to do so, except

Driving on laned roadway

151 A driver who is driving a vehicle on a laned roadway

(b) must not drive it from one
lane to another if that action necessitates crossing a solid line,

[99]        
Here, there was a solid line demarking the northbound and southbound
lanes within the parking lot. Having said that, the yellow line is unbroken at
the various ‘intersections’ within the parking lot. That is to say, there is no
lawful method of making a left hand turn if proceeding in an easterly fashion
and wanting to then get into the northbound lane.

[100]     Counsel for
the defendant Jones suggests that the plaintiff’s leaving the northbound lane,
in whole or in part, so as to ‘arc’ into the parking stall is evidence of
negligence on the part of the plaintiff. She argued such negligence was the
sole cause or major cause of the collision that followed. She argued that by
taking the course she did, the plaintiff was no longer the dominant driver
entitled to the right of way.

[101]     No
authority was cited for that proposition beyond reference to the above noted
provisions of the Act. I was referred to no similar case where the
factual matrix is as I have determined here.

[102]     While
acknowledging the plaintiff’s arcing maneuver outside of the northbound lane
breached the relevant sections of the Motor Vehicle Act, it was not, in
my view, the primary cause of the accident. I agree with counsel for the
plaintiff who argued that such a manoeuvre is common place in parking lots.

[103]     To
whatever degree she left the northbound lane in which the defendant was
travelling, she was nevertheless, at all times, there to be seen.

[104]     The defendant
offered no explanation for his failure to observe the plaintiff’s vehicle. She
was immediately in front of him until she began her turn. She indicated her intention
to do so by activating her right turn signal. Mr. Jones did not say
otherwise and I therefore accept the uncontradicted evidence of the plaintiff
on this point.

[105]     Mr. Jones
did not testify that he was surprised by her maneuvering to the left and
assumed that it was safe to pass on her right. Instead he simply did not see
her up until the moment of impact. Why that is so is known only to him. I find
it denotes a marked departure from the standard of care expected of a
reasonable driver.

[106]     I conclude
the defendant was negligent in failing to observe that which was there to be
seen, in failing to follow at a distance sufficient to allow him to avoid
colliding with plaintiff and in travelling at a speed inconsistent with his
ability to stop in the event of a reasonably routine maneuver such as was executed
by the plaintiff.

[107]     Having
said that, I agree with the defendant that the plaintiff’s driving,
specifically leaving her lane of travel either substantially or entirely so as
to lessen the angle of entry into the vacant parking stall, amounted to a breach
of her obligations under the Motor Vehicle Act and that her failure to
take any notice of vehicles to her right as she brought her vehicle wholly back
into the northbound lane; this was negligent, as well. The plaintiff
acknowledged that she did not check to her right, and given that I have found
she did cross the centerline into the southbound lane before beginning her
entry into the parking stall adjacent to the Camry, it would have been prudent
for her to look to the right for oncoming vehicles; a reasonable person must
take into account the possibility of others being careless and she ought to
have done so: Bow Valley Jusky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,
[1997] 3 S.C.R. 1210.

[108]    
Having determined that both the plaintiff and defendant were at fault
for the happening of the second accident, I turn to the Negligence Act, R.S.B.C.
1996, c.333, specifically s. 1, which provides:

Apportionment of liability for damages

1 (1) If by the fault of 2 or more persons damage or loss is
caused to one or more of them, the liability to make good the damage or loss is
in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the
circumstances of the case, it is not possible to establish different degrees of
fault, the liability must be apportioned equally.

(3) Nothing in this section
operates to make a person liable for damage or loss to which the person’s fault
has not contributed.

[109]     In assessing
the degree of responsibility of each of the two parties, as I must, it is my
view that the defendant’s failure to keep a proper look out for the plaintiff’s
vehicle is substantially more blameworthy than the plaintiff’s failure to see his
vehicle approach from the right.

[110]     I disagree
with defence counsel that she lost her entitlement to dominance within the
northbound lane. She indicated her intention to turn right and performed what I
conclude is a commonplace manoeuvre within shopping malls. While her failure to
observe Mr. Jones was blameworthy, it was his failure to slow or stop,
once warned of her intention to turn right, that was the more significant cause
of the collision that followed.

[111]     In the
circumstances, I apportion liability of the plaintiff at 20% and 80% as against
the defendant Mr. Jones.

The Medical Evidence

[112]     Following
the first accident, the plaintiff saw her long-time family physician, Dr. Cielak,
on several occasions. He did not prepare a report providing a diagnosis and prognosis
for the plaintiff’s presenting symptoms and complaints following the first
accident.

[113]     The
plaintiff testified she was sore along the left side of her body including her
shoulders, neck and left hip.

[114]     She said
it interfered with her capacity to assist her husband in the tile setting
business although at the onset of the trial any claim for past income loss was
abandoned.

[115]     Following
the second accident, the plaintiff began attending a walk-in clinic closer to
her home. In part this was necessitated by the damage to her vehicle but later became
necessary, says the plaintiff, as a result of her fear of driving.

[116]     In any
event, from August 2008 onward, Dr. Hartwig or other physicians practicing
out of the Health First Medical Centre oversaw the plaintiff’s care. Dr. Hartwig
diagnosed a strain to her cervical spine accompanied by headaches.

[117]     He
referred her for a course of physiotherapy treatment at the Fleetwood
physiotherapy treatment, which was located in the same office building as his
practice. Treatment consisted of electrical nerve stimulation, hands-on massage
and exercises, which included a home exercise regime made up mainly of
stretching. It provided modest relief of the plaintiff’s complaints over the 24
visits that she attended before her discharge from physiotherapy in
mid-December 2008.

[118]     Dr. Hartwig’s
medical report notes that she advised that her back was then improving but she
was continuing to use medications every night to assist with sleep and Ibuprofen
on a daily basis for pain control.

[119]     Her
complaints lingered and by March 2009 she was prescribed a course of massage
therapy and Dr. Hartwig suggested that she consider trigger point
injections in the affected areas. Headaches were still a daily concern.

[120]     By June
2009, Dr. Hartwig reported she “was diagnosed with resolved exacerbation
of neck soft tissue injury. She was advised to go to the gym.”

[121]     Following
her visit to Dr. Hartwig in September 2009, for an unrelated complaint,
she did not attend the clinic until February 2010 when she complained of
tiredness and headaches that had been persistent throughout the previous two
months. She complained of dizziness and vision impairment. She continued to take
Ibuprofen daily and often had to lie down in the evening. Dr. Hartwig’s
report in March 2010 contained the first notation that her neck in the back of
her head felt “hot at times”.

[122]     Dr. Hartwig
diagnosed fibromyositis and tension headaches. He referred her to Dr. Leon
Jaworski, a specialist in physical medicine who had previously worked with the
plaintiff following her original motor vehicle accident in 2003.

[123]     In May
2010, she was referred for an MRI to the back of her skull. The referral was
made upon request of the plaintiff at the insistence of her lawyer, not as a
result of any medical diagnosis requiring it. The MRI report of May 5, 2010
provided no evidence of any posttraumatic lesion.

[124]     Dr. Hartwig
based his diagnosis of the plaintiff on his observations of her in his clinic
and the reports from Dr. Jaworski; he diagnosed her injuries as soft
tissue in origin resulting in tension headaches, skull tenderness, fatigue and
low back pain together with muscle tenderness, and decreased range of motion in
her neck. Treatments consisted of massage and physiotherapy coupled with, for
the most part, over-the-counter medication.

[125]     Dr. Hartwig
attributes the duration and ongoing nature of her complaints to a combination of
the first and second accident and, to some limited extent, residual effects of
the 2003 accident.

[126]     He had no
recommendations as to further treatment other than ongoing use of analgesics as
required and possible further physiotherapy or conditioning. No surgical
intervention is called for nor any other specific investigation as to her
complaints.

[127]     Independent
medical examinations were arranged by counsel for the plaintiff with Cecil
Hershler and Gordon Robinson. The former is a specialist in physical medicine
and rehabilitation; the latter is a specialist in neurology and headache
disorders.

[128]     The
plaintiff saw each of these medical practitioners for an assessment. She saw Dr. Hershler
on two occasions; Dr. Robinson, on one.

[129]     Dr. Hershler
offered the opinion that she had suffered a mild traumatic brain injury. He
based that opinion, in part, on the history given by the plaintiff that she
lost consciousness in the second accident and made reference to her memory
deficit problem. That account is to be contrasted with her evidence at trial
that she hit her head in the first accident.

[130]     The only
suggested treatment contained in Dr. Hershler’s reports was one-on-one
exercise training with a personal trainer, although I pause to note that he was
not a treating physician.

[131]     Dr. Robinson
was given no history of loss of consciousness and saw no evidence of a mild
traumatic brain injury. He attributed her complaints, in particular, complaints
of headaches, to the two subject accidents.

[132]     To be
clear, I am unable to conclude based on the plaintiff’s evidence that she
either struck her head or lost consciousness in the second accident.
Plaintiff’s counsel did not press the issue of mild traumatic brain injury when
speaking to the assessment of damages.

[133]     Dr. Robinson
noted she was improving gradually from the symptoms brought on by the May 2008
accident when the second accident occurred. He noted that “it appears the
August 11, 2008 accident is substantially responsible for her persisting symptoms
of headache and neck pain, which are probably worse than her condition before
this collision.”

[134]     He foresaw
little improvement in headaches and little need for future treatment beyond
maintaining an active lifestyle and reassurance that the headaches did not
relate to some, as yet, undiagnosed pathology.

[135]     Noting
that it was now five years since the accident, he foresaw little likelihood of
change in the years ahead.

[136]     The
defendants in both actions relied upon consultation reports from Dr. Jaworski,
properly served on the plaintiff, as the basis for arguing that the plaintiff’s
condition was one of general deconditioning resulting in a number of complaints.

[137]     Dr. Jaworski
noted in January 2011, that her low back pain was much improved as a result of
the recommended core conditioning. Overall, he found no major pathology
relating to her back or neck and had no recommendations for ongoing treatment.

The Assessment of Damages

[138]     The
combined effect of the medical evidence, coupled with the testimony of the
plaintiff, lead me to conclude that the plaintiff suffered an exacerbation of
pre-existing soft tissue complaints to the left side of her body from the
accident in May 2008. Those were further, and more substantially aggravated, by
the August 22, 2008 accident. In addition, following the August 2008 accident,
she developed headaches that are now described as chronic.

[139]     I agree
with counsels’ shared submission that the injuries from the two accidents need
be assessed globally as the injuries from each are indivisible. Bradley v.
Groves. 2010 BCCA 361.

[140]     Her
injuries, I find, consisted of soft tissue injuries to the low and upper back,
neck and shoulder together with headaches and sleeplessness.

[141]     Her low
back complaints have greatly improved. Her soft tissue complaints, while
continuing, seem reasonably modest. They are controlled with Ibuprofen taken
regularly but in small dosages.

[142]     I agree
with counsel for the defendants that the injuries must be assessed as against
the plaintiff’s baseline condition in May 2008.

[143]     While it
is true she was not taking any medical treatment in respect of those injuries,
she was, by her own admission, which she had reported to her medical advisors,
symptomatic with periodic complaints of pain in the areas now said to be more
problematic.

[144]     The plaintiff,
because of her acknowledged memory deficit, offered little concrete insight as
to the extent of her pre-May 2008 condition. It clearly did not affect her
modest recreational pursuits since she testified about her frequent walking,
occasional skiing and dancing, along with home entertaining.

[145]     Those
activities were interfered with subsequent to the two accidents I am
considering.

[146]     The
plaintiff has returned to recreational walking, albeit not as frequently or for
as long as was the case prior to May 2008. Her level of socialization remains
below what is what prior to the two accidents.

[147]     She
experienced initial difficulty with assisting her husband, at least in the
heavier aspects of his business, but seemingly now has re-engaged at a level
the same or similar to that prior to the May 2008 accident.

[148]     Her major
complaint is daily or almost daily headaches. Sometimes she needs to lie down
and rest at the end of a busy day.

[149]     She
performs all of her housework but more slowly than was the case before the
accident.

[150]     There is
no further expected treatment. Improvement is possible but not likely after
five years.

Positions of the Parties

[151]     In light
of the foregoing, the plaintiff suggests a global award of damages of $70,000
coupled with special damages of $2,021.91.

[152]     The latter
is comprised of expenses in relation to physiotherapy treatments, massage
treatments and the chiropractic treatment together with a modest allowance for
medication her medical professionals prescribed.

[153]     Lastly,
the plaintiff suggests an award for future care of $5,000 reflective of
anticipated costs for a gym membership and Ibuprofen, which is estimated at a
cost of $25 per month.

[154]     As I noted
above, the plaintiff’s claims for loss of income were abandoned at the
commencement of the trial. The claim for loss of housekeeping capacity,
referenced in the plaintiff’s opening statement, was not addressed in final
submissions. This is likely because the evidence would not sustain an award
under this heading given it appears the plaintiff has continued performing the
same tasks as before the two accidents.

[155]     In support
of the claim for general damages, the plaintiff referred to a number of cases
including Predinchuk v. Spencer, 2009 BCSC 1396; K.T. v. A.S.,
2009 BCSC 1653; Prempeh v. Boisvert, 2012 BCSC 304; Wernicke
v. Logan, 2007 BCSC 1899; and Kardum v. Asadi-Moghadam,
2011 BCSC 1566.

[156]     All are
cases involving the assessment of damages for predominantly soft tissue
injuries. All, of course, are unique to their facts and the particular
circumstances of the individual plaintiff.

[157]     It was
argued that the plaintiff, by failing to sufficiently particularize her
baseline pre-accident condition, has left the court in the difficult position
of not being able to assess the degree of exacerbation of those symptoms.
Counsel notes there was no evidence corroborating the suggested increase in
symptoms from her husband or anyone else familiar with her pre and post-accident
condition.

[158]     The
defendants’ counsel argues that the plaintiff has substantially returned to her
pre-accident status and activities. With the exception of headaches, the
defendant says it is difficult to differentiate the plaintiff’s pre-May 2008
condition from her present condition.

[159]     Both
defendants suggested an award in respect of general damages of $30,000 to $40,000
and cites Ghazgbi v. Hibbard, 2004 BCSC 1821; Hoy v. Harvey,
2012 BCSC 1076; Kartz v. Carlson & Champagne, 2006 BCSC
716; Pond v. Bucsis, 2013 BCSC 2001; and, Ryan v.
Klakowich, 2011 BCSC 835.

[160]     They argue
that whatever the award for general damages, it ought to be reduced by virtue
of the plaintiff’s failure to mitigate. Here, the defendant points to the plaintiff’s
failure to follow through with recommended physiotherapy treatments following
the first accident and the failure to heed Dr. Hershler’s recommendation
of physical conditioning utilizing the services of a personal trainer.

[161]     As to the
special damages claimed, the defendant, Jones, opposes compensation in respect
of the chiropractic treatment but agrees the other claimed expenses are
properly compensable.

[162]     Lastly, as
to the claim for future medical expense, the defendant says these are unproven
as being medically necessary and argues that no award should be made.

Damages

General Damages

[163]     In assessing
the impact of the plaintiff’s injuries as described above, I have considered
and applied the principles enunciated in Stapley v. Hejslet, 2006 BCCA
34. Of particular importance in this case is the long-term duration of the plaintiff’s
complaints and their frequency.

[164]     I accept
that the plaintiff had some modest impairment to her vocational and avocational
activities immediately following the two accidents. I would describe the level
of impairment as minimal in comparison to how she functions at the present
time.

[165]     The major
consideration in the assessment of what is a proper award for general damages
is the enduring nature of her complaints. The accidents occurred five years ago.
Her ongoing complaints, which I accept as genuine, persevere and show little prospect
of abating. They continue to impact the plaintiff’s enjoyment of recreational
activities and require her to continue with medications and periods of rest
when her symptoms, mainly headaches, are in their acute phase.

[166]     I agree
with the defendants that the plaintiff’s evidence as to frequency, said to be
daily, must be viewed somewhat sceptically in view of her response on discovery
that they occurred two to three times a week.

[167]     While I
agree with the defendants that the plaintiff is to be compensated only for the increase
and aggravation of her symptoms post-May 2008, I find that her ongoing
complaints are significant and more in keeping with the range of symptoms
referenced in the authorities cited to me by the plaintiff than those relied
upon by the defendant.

[168]     However,
the cases relied upon by the plaintiff considered plaintiffs without
pre-existing symptoms that were exacerbated, as is the case here.

[169]     I assess
general damages, globally, in the amount of $60,000. In so doing, I am taking
into account that the plaintiff was not entirely ‘whole’ prior to the May 2008
accident. She continued to experience residual symptoms from the 2003 accident.
I find, however, her symptoms were significantly exacerbated by the combination
of the May and August 2008 accidents.

[170]     The
plaintiff’s ongoing complaints, while only modestly impacting her day-to-day
life, are permanent in nature and will continue to impact her enjoyment of life
indefinitely.

Apportionment of Damages between the Two Accidents

[171]     The
defendants in both actions were represented by one counsel. She argued that
were I to determine that the plaintiff and defendant, Jones, share
responsibility for the second accident, then I must apportion, as best I can,
the global assessment of damages as between the two accidents: Ashcroft v.
Dhaliwal, 2008 BCCA 352.

[172]    
In my view, that submission does not account for the nuance created by Bradley
v. Groves where, commencing at paragraph 32, the court stated:

[32] There can be no question that Athey requires
joint and several liability for indivisible injuries. Once a trial judge has
concluded as a fact that an injury is indivisible, then the tortfeasors are
jointly liable to the plaintiff. They can still seek apportionment
(contribution and indemnity) from each other, but absent contributory
negligence, the plaintiff can claim the entire amount from any of them.

[33] The approach to apportionment in Long v. Thiessen
is therefore no longer applicable to indivisible injuries. The reason is that Long
v. Thiessen pre-supposes divisibility: Long requires courts
to take a single injury and divide it up into constituent causes or points in
time, and assess damages twice; once on the day before the second tort, and
once at trial. Each defendant is responsible only for their share of the injury
and the plaintiff can recover only the appropriate portion from each
tortfeasor.

[34] That approach is logically incompatible with the concept
of an indivisible injury. If an injury cannot be divided into distinct
parts, then joint liability to the plaintiff cannot be apportioned either. It
is clear that tortfeasors causing or contributing to a single, indivisible
injury are jointly liable to the plaintiff. This in no way restricts the
tortfeasors’ right to apportionment as between themselves under the Negligence
Act, but it is a matter of indifference to the plaintiff, who may claim the
entire amount from any defendant.

[35] This is not a case of this Court overturning itself,
because aspects of Long v. Thiessen were necessarily overruled by the
Supreme Court of Canada’s decisions in Athey, E.D.G., and Blackwater.
Other courts have also come to this same conclusion: see Misko v. Doe,
2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36] It may be that this represents an extension of pecuniary
liability for consecutive or concurrent tortfeasors who contribute to an
indivisible injury. We do not think it can be said that the Supreme Court of
Canada was unmindful of that consequence. Moreover, apportionment legislation
can potentially remedy injustice to defendants by letting them claim
contribution and indemnity as against one another.

[37] We are also unable to accept the appellant’s submission
that “aggravation” and “indivisibility” are qualitatively different, and
require different legal approaches. If a trial judge finds on the facts of a
particular case that subsequent tortious action has merged with prior tortious
action to create an injury that is not attributable to one particular
tortfeasor, then a finding of indivisibility is inevitable. That one tort made
worse what another tort created does not automatically implicate a thin or
crumbling skull approach (as in Blackwater), if the injuries cannot be
distinguished from one another on the facts. Those doctrines deal with finding
the plaintiff’s original position, not with apportioning liability. The first
accident remains a cause of the entire indivisible injury suffered by the
plaintiff under the “but for” approach to causation endorsed by the Supreme
Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R.
333. As noted by McLachlin C.J.C. in that case, showing that there are multiple
causes for an injury will not excuse any particular tortfeasor found to have
caused an injury on a “but-for” test, as “there is more than one potential
cause in virtually all litigated cases of negligence” (at para. 19). It
may be that in some cases, earlier injury and later injury to the same region
of the body are divisible. While it will lie for the trial judge to decide in
the circumstances of each case, it is difficult to see how the worsening of a
single injury could be divided up.

[Emphasis added.]

[173]    
I emphasized the line, “absent contributory negligence” in para. 32
to clarify that I understand the court to be saying, if a plaintiff is
contributorily negligent, she loses the right to a joint and several judgment;
that is, the judgment is issued severally and she may only recover the
respective damages that each tortfeasor is at fault for. The distinction
between “causation” and “fault” is critical. This distinction was articulated
in Karran v. Anderson, 2009 BCSC 1105:

[106] The Negligence Act, R.S.B.C. 1996, c. 333, s. 1(1),
requires that apportionment of liability must be made on the basis of “the
degree to which each person was at fault”.  As stated in Cempel v. Harrison Hot Springs, [1998]
6 W.W.R. 233, 43 B.C.L.R. (3d) 219 at para. 19 (C.A.), the assessment to
be made is of degrees of fault, not degrees of causation, with “fault” meaning
blameworthiness.  Courts must gauge the amount by which each proximate and
effective causative agent fell short of the standard of care that was required
of that person in all of the circumstances.

[107] In assessing the
respective fault and blameworthiness of the parties as contemplated in Cempel, courts are to evaluate the extent or
degree to which each party departed from the standard of care each party owed
under the circumstances: Alberta
Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505 at para. 46. 
Finch J.A. (as he then was) described the range of blameworthiness, as follows:

Fault may vary from extremely careless conduct, by which the
party shows a reckless indifference or disregard for the safety of person or
property, whether his own or others, down to a momentary or minor lapse of care
in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[174]    
Bradley should not be interpreted as standing for the proposition
that because a plaintiff was contributorily negligent, the injuries are
divisible and subject to apportion based on causation.

[175]     In this
case, the injuries are indivisible and the global assessment of damages at
$60,000 stands. Long v. Thiessen has no application here. Hence, the necessary
inquiry is to determine the degree of fault of each of, Mr. Ferman, Mr. Jones
and the plaintiff in respect of her indivisible injury based on the extent to
which each party departed from the standard of care owed in the circumstances.
The defendants are not jointly liable for the global assessment of damages.

[176]    
The first accident was undoubtedly less severe than the second accident.
Mr. Ferman showed a minor lapse of care in conduct. The plaintiff appeared
on the road to recovery prior to the August 11, 2008 accident. Mr. Jones
showed a more major lapse of care in his conduct, showing a disregard for the
safety of others. The plaintiff’s symptoms from the May accident not only
returned but worsened as a result of it. The major residual complaint that the
plaintiff has today – headaches – arose from the August 2008 accident. The
plaintiff, found to be 20% liable for causing the second accident, is in my
view, less blameworthy in terms of her departure from the standard of care owed
in the circumstances. Her lapse of care in conduct was minor, comparatively.

[177]    
If fault is to be determined in percentages than I would apportion the
respective degrees of fault for the indivisible injury as follows:

[178]     The result,
subject to the defendants’ submission that those damages ought to be reduced by
virtue of the plaintiff’s failure to mitigate, is an award of general damages
of $9000 in the Ferman action and $42,000 in the Jones action.

Failure to Mitigate

[179]     The
defendants, in each action, argue that the plaintiff’s damages ought to be
reduced by reason of her failure to mitigate. Specifically, they argue that her
failure to obtain available physiotherapy treatment following the May 2008
accident and her subsequent failure to follow the advice of Dr. Hershler
to engage a personal trainer for core strengthening, prolonged and exacerbated
her symptoms. Implicit in the defendants’ argument is that her actions were
unreasonable.

[180]     The
defendants concede the onus to demonstrate that the plaintiff failed to
mitigate damages rests on them: Graham v. Rogers, 2001 BCCA 432.

[181]     As to the
initial failure by the plaintiff to pursue physiotherapy treatments, she
explained that she believed that ICBC would not fund the treatments because they
denied a similar claim by her daughter. I agree that this assumption, without
further inquiry, is unreasonable. Regardless of whether the treatments would be
covered by a third-party, absent financial inability to fund the payments, a
reasonable person would take steps to undergo all necessary treatments.

[182]     Having
said that, there is nothing in the evidence which drives me to the conclusion
that the defendant, Ferman, has proven that physiotherapy within the
approximate three month period between the first and second accident would have
resulted in a meaningful abatement of the plaintiff’s pain.

[183]     Accordingly,
I am not satisfied that the defendant has discharged his burden with respect to
the May 2008 accident.

[184]     As to the
submission concerning failure to heed the advice of Dr. Hershler, I note
he was not her treating physician and it seems the advice was passed on to her
only through the preparation of his medical report to counsel.

[185]     It is
apparent from reading the reports of Dr. Jaworski that the plaintiff
continued with exercises following her discharge from physiotherapy and
experienced some resultant gains in mobility and pain reduction.

[186]     Neither Dr. Jaworski
nor Dr. Hartwig, her treating physicians, suggested more was necessary.

[187]     Again, I am
not satisfied that the defendant, Jones, has discharged his onus to demonstrate
that the core training under professional supervision, as recommended by Dr. Hershler,
would have ameliorated any of the plaintiff’s complaints.

[188]     Accordingly,
I decline to reduce the plaintiff’s damages for failing to undergo medical
treatments as advised.

Special Damages

[189]     There is
no dispute as to the claimed special damages save for the expense for
chiropractic treatment, which was specifically advised against by Dr. Robinson.
The defendant, Jones, says that it was not reasonable for the plaintiff to
attend chiropractic treatment in the face of such advice. I agree.

[190]     While
noting that Dr. Robinson, like Dr. Hershler, was not a treating
physician, I deny the claim for chiropractic treatment on the basis of Dr. Hartwig’s
opinion that continuing physiotherapy or physical rehabilitation was the only
further modality of treatment required. The plaintiff offered no compelling
reason why chiropractic treatment was her chosen option in the face of the
combined advice of Drs. Hartwig and Robinson. A defendant is liable to
reimburse a plaintiff for required medical treatments, not every modality of
treatment a plaintiff might choose regardless of whether such is medically
necessary.

[191]     Here there
was no medical basis of the chiropractic treatment and, indeed, it provided no
relief to the plaintiff.

[192]     In the
result, the claim for special damages is compensable except for the
chiropractic treatment. I assess the damages at $1,546.91.

[193]     The
special damages are wholly attributable to the Jones action and are subject to
the apportionment of 80/20 apportionment of liability referenced above.

Future Care

[194]     The future
care claim is intended to cover the ongoing costs of “prescribed and
over-the-counter Ibuprofen together with the cost of an annual gym pass so as
to perform recommended exercise”. As well the amount claimed is said to include
an allowance for massage treatments “should her neck become worse”.

[195]     With the
exception of the ongoing intake of analgesics, approximately two a day, there
is no demonstrated need for the other suggested treatments. The plaintiff’s
evidence demonstrates that she is capable of performing rudimentary exercise at
home, sufficient to comply with the medical advice of both Drs. Hartwig and
Jaworski. There was no suggestion in the evidence, either from the plaintiff or
her medical advisors, that she required a gym pass. The same applies for
massages.

[196]     The
plaintiff has not taken prescription medications for a significant period of
time. She continues to use Ibuprofen on a daily basis. I was not provided with
any evidence as to the monthly cost.

[197]     Doing the
best I can, absent evidence of specifics, but confident that the plaintiff will
continue to use Ibuprofen regularly in the future, I award the sum of $500 for
future care.

[198]     These
future costs are solely attributable to the Jones action and subject to the
apportionment of liability.

Court Order Interest

[199]     The
plaintiff is entitled to court order interest in respect of the award for special
damages at prescribed rates.

Summary

[200]     In
summary, damages are awarded as follows:

(a)      General damages:

(b)      Special Damages:

(c)      Future Care

Costs

[201]     Unless
there are offers to settle which impact upon the question of costs, the
plaintiff is entitled to costs as against the defendant Ferman. Costs in
respect of the Jones action are governed by the Negligence Act. The
plaintiff is entitled to 80% of assessed costs as against the defendant, Jones.
There should be one set of costs in respect of the trial. I leave to the
parties to calculate the appropriate percentages having regard to apportionment
of liability in respect of the Jones action.

[202]    
If the issue of costs needs to be addressed, arrangements should be made
with trial scheduling to re-appear before me at a time convenient to all.

“Harvey
J.”