IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20140605

Docket: M101954

Registry:
Vancouver

Between:

Sarah
Brunelle

Plaintiff

And

Alice
Jean Yoshida

Defendant

Before:
The Honourable Mr. Justice Kent

Reasons for Judgment

TABLE OF CONTENTS

Introduction.. 3

The Accident. 3

The Plaintiff’s Background and
Testimony. 4

Pre-Accident History. 4

The May 13, 2008 Accident 7

The Lay Witnesses. 12

Jay Brunelle. 12

Reisha Burke. 14

The Medical Witnesses. 15

Ron Mattison (Physiotherapist) 15

Dr. Beverly Tyler (Chiropractor) 16

Dr. Martin Ray (General
Practitioner) 18

Sheri Cairo-Martinez (Massage
Therapist) 20

Coral-Lei Schweigert (Kinesiologist) 20

Louise Craig (Functional Capacity
Evaluator) 21

Dr. Cecil Hershler (Physiatrist) 23

Dr. Jordan Leith (Orthopaedic
Surgeon) 25

Causation and the Assessment of
Damages in a Negligence Case. 27

Credibility and Reliability of the
Plaintiff’s Evidence. 32

Findings as to Injury, Causation and
Loss. 38

Non-Pecuniary General Damages. 43

Loss of Past and Future Income
Earning Capacity. 46

Special Damages. 52

Cost of Future Care. 52

Summary. 56

Introduction

[1]            
On May 13, 2008, a low impact collision occurred on Highway 99 at the entrance
to the Massey Tunnel in Richmond, when a 1996 Toyota Corolla owned and operated
by the defendant, Ms. Yoshida, struck the rear end of a 2005 Toyota Echo
sedan driven by the plaintiff, Ms. Brunelle.

[2]            
The defendant admits her negligence caused the accident, but denies the
plaintiff was injured or suffered any meaningful losses or damages as a result. 
Causation and proof of loss were thus the key issues which occupied the trial
of this case over some six days.

[3]            
In final submissions, the plaintiff sought an award of damages in the
aggregate principal amount of $337,000.  The defendant, on the other hand,
suggested an aggregate award of $45,000 was more appropriate.

[4]            
For the reasons that follow I find that the accident did indeed cause
injuries and consequential pain symptomology which has persisted to present and
will continue into the future, although without significantly impairing the
plaintiff’s functionality, and damages are awarded as follows:

[5]            
Special damages are also awarded with reference to the third updated
schedule of special damages presented at trial, together with court ordered
interest to be calculated.  Costs will be assessed under Scale B.

The Accident

[6]            
The accident happened at approximately 8:00 a.m. in the southbound lanes
just before the entrance to the Massey Tunnel.  The plaintiff was driving her
Toyota Echo car.  She was wearing her seatbelt and the headrest was adjusted
for her height.  She brought her vehicle to a stop as a result of traffic
congestion, whereupon her vehicle was rear-ended by the defendant’s Toyota Corolla.

[7]            
The defendant’s testimony is that she was travelling approximately 30
kilometres per hour (kph) as she was approaching the entrance to the tunnel. 
Once she realized the plaintiff’s vehicle had come to a stop in front of her,
she applied her brakes.  She estimated that at the time of impact, her speed
was very slow, 5 kph or less.

[8]            
After the impact, the plaintiff drove her vehicle through the tunnel and
into the first pullout, where she parked.  The defendant followed and parked
behind her.  They exchanged contact and insurance information.

[9]            
Photographs were put into evidence by consent showing the damage to the
vehicles.  There appears to have been no damage to the defendant’s vehicle. 
The damage to the plaintiff’s vehicle appears to be limited to scratching of
the surface of the rear bumper.

[10]        
The defendant argues that “although speed of impact and resulting
material damage are not determinative of injury, they also cannot be ignored”. 
The defendant urges the Court to find this accident caused nothing more than a
very minor “whiplash” injury of limited duration and that damages should
accordingly be assessed in only a modest amount.

The Plaintiff’s Background and Testimony

Pre-Accident History

[11]        
Ms. Brunelle was born November 14, 1981.  She was 26 years old at
the time of the accident.  She is now 32 years old.

[12]        
Ms. Brunelle attended and graduated from high school at South Delta
Secondary School.

[13]        
There was very little evidence to indicate what happened in the
plaintiff’s life during the period June 1999 to March 2005.  There are various
references in both the medical evidence and in the plaintiff’s own testimony to
a “chaotic” period that involved drug and alcohol abuse, episodes of
depression, in one instance “drug induced psychosis” (January 2005),
rehabilitation and “recovery”, a “clean date” of March 10, 2005, and
attendances at “Narcotics Anonymous” programs.  However, the details of this
five-year period were not set out in any of the medical reports nor were they
elicited from the plaintiff herself, whether in examination in chief or
cross-examination.

[14]        
The plaintiff worked as a hair stylist at Strutters Hair Studio from
March 2005 to March 2006.  She then worked as a hair stylist at Atomic Hair
Studio from April 2006 to April 2007l.  She also worked part-time as a retail
sales person at a shoe and purse enterprise, Fusion Boutique, for the period
March 2006 to December 2006.

[15]        
In 2005, the plaintiff’s reported taxable employment income was $5,220,
and in 2006 that number increased to $17,822.

[16]        
The plaintiff suffered an injury to her left shoulder when she was in
the last year of high school.  She was kicked in the back during a soccer
game.  The injury, which appears to have been primarily soft tissue in nature,
never completely resolved.  It was exacerbated by Ms. Brunelle’s work as a
hairdresser:  the prolonged elevation of her arms and the repetitive use of her
shoulders led to continuing pain and repeated visits to her family doctor.  The
plaintiff testified that she eventually resigned her employment at Atomic Hair
Studio and quit hairdressing altogether in May 2007 because the left shoulder pain
had simply become “too much”.

[17]        
The plaintiff’s family doctor referred the plaintiff to an orthopaedic
surgeon who specialized in shoulder problems, Dr. Regan.  The CT scan
ordered by Dr. Regan failed to show any abnormality in the area and a
conservative approach to treatment was followed, comprising primarily
physiotherapy sessions under the direction of Ron Mattison at the Allan McGavin
Sports Medicine Clinic.  Additional physiotherapy treatments for the condition
were also received from Tsawwassen Physiotherapy at various times during the
period July to October 2007.

[18]        
On August 23, 2007, the plaintiff’s family doctor issued a note, “Able
to return to work or training program as of August 26.  Not able to return to
hairdressing occupation.”

[19]        
In 2007, the plaintiff received employment income of $11,194 as well as
Employment Insurance benefits in the amount of $10,680.

[20]        
Following her decision to leave the hairdressing occupation, the
plaintiff applied for a job as a bank teller at the Ladner branch of Envision
Credit Union.  Her application for employment was successful and she was
supposed to start work with Envision in May 2007.  She says, however, she chose
not to accept the job at Envision because she had become aware of a “self-improvement
school” and preferred to pursue that option.

[21]        
The evidence regarding this self-improvement program was not fleshed out
in detail.  It appears to have been a program available to persons receiving
Employment Insurance benefits designed to assist individuals to become
self-employed by starting a business.  In addition to financial assistance, the
program also offered some basic entrepreneurial training and advice, including
guidance with respect to the preparation of a business plan.

[22]        
The plaintiff’s application materials for this “self-employment equity
program” were put into evidence and are variously dated between July 20, 2007
and August 15, 2007.  Also put into evidence was an undated but otherwise very
detailed business plan for the plaintiff’s proposed new small business “Now
& Zen Organizing Solutions”.

[23]        
There are many similarities between the content of the self-employment
equity program application materials and the finalized Business Plan.  Based on
the dates on some of the documents comprising the Business Plan, it appears the
version of the latter put into evidence was finalized in approximately December
2007.  However, the Registrar of Companies’ documentation confirms registration
by the plaintiff of a sole proprietorship under the name “Now & Zen Professional
Organizing Solutions” on October 16, 2007, with a stated “start date” for the
business of October 7, 2007.  The bank accounts for the business were also put
into evidence and the first entry in that documentation appears on October 31,
2007.

[24]        
The plaintiff says that the idea of becoming a professional organizer
arose from the chaotic period in her life when she was herself very
disorganized.  She says “once I overcame that, I felt I could help others” and
she was very enthused at the idea of starting and growing a business.

[25]        
The plaintiff recognized the first couple of years would require substantial
promotional efforts by joining networking groups, advertising, and “getting the
name out there”.  She anticipated those first couple of years would basically
be self-employment but thereafter she hoped to graduate to more of a
managerial/consulting role with employees doing the physical work.  She spent
time, effort and money in creating promotional material and business
forms/agreements, several examples of which were put into evidence.  She
created advertisements and was even profiled in the April 25, 2008 copy of the
South Delta Leader newspaper.  She suggests her business was up and running and
starting to gain traction when the motor vehicle accident intervened.  She
blames the accident and the resulting injuries for the ultimate failure of the
business in 2009.

The May 13, 2008 Accident

[26]        
At the time of impact, the plaintiff says she had her hands on the wheel
at the 10:00 o’clock and 2:00 o’clock positions, and her right foot on the
brake.  She says the car was jolted by the impact and pushed forward a foot or
two.

[27]        
The plaintiff says she immediately experienced a sharp pain in her back
and neck as a result of the collision and that a “really bad’ headache
developed shortly thereafter.  She called her mother, who promptly booked an
appointment for her later that day with the family doctor.  She then went to
her mother’s house in Tsawwassen.  She said she had a pain in the back and the
neck and she just wanted to lay down.

[28]        
The first week after the accident it was “hard to get out of bed”.  She
had lower back and neck pain, headaches and lack of sleep.  These symptoms, she
says, have persisted to the present day.

[29]        
With respect to the neck pain, she says it is “pretty constant” and has
never fully gone away.  She experiences stiffness and tightness along with
headaches at the back of her skull.

[30]        
The low back pain the plaintiff describes as “achy” and certain positions
can generate a sudden sharp pain.  This phenomenon too has never completely
gone away.

[31]        
The headaches she experiences are almost always at the back of the
head.  They have a throbbing quality and make it hard for her to concentrate.

[32]        
She said the headaches can sometimes last for days and do not dissipate
until she gets treatment (chiropractic and massage therapy).

[33]        
The plaintiff says that her sleep is interrupted, and she finds herself
tossing and turning and getting up at night.  She had some sleeping difficulties
at various times before the accident, but this is “totally different”.  Her
quality of sleep varies, but she does not feel refreshed in the morning.  She
has tried meditating, Advil and ibuprofen, memory foam, and a water pillow, all
of which “helps a bit” but she says she is still not back to her pre-accident
sleeping patterns.

[34]        
All of this has affected the plaintiff’s mood.  She says she didn’t
think all of these symptoms would last like this.  She is “not getting better”
and this makes her sad, “down” and depressed.  All of this was exacerbated by
the decline in her business.  She says she simply could not do the lifting and
bending work involved.  She says the decision to shut down the business was “heartbreaking”
but she simply couldn’t do the work anymore and, after talking to her boyfriend
(now husband) she decided to look into other areas.

[35]        
Although she has retrained for a new profession (ultrasound technician)
and is working full time, she still experiences pain and headaches.  On a good
day she is “always achy” and on a bad day the level of discomfort increases and
affects her mood.

[36]        
With respect to recreational activities, the plaintiff says she is still
trying to stay physically active, although she has modified and adapted same to
accommodate her limitations.  She has reduced the length of time that she
engages in things like skiing and hiking, and she takes lots of breaks.

[37]        
Presently, the plaintiff receives chiropractic and massage therapy
treatments every two weeks.  She says the combination of massage therapy
followed by chiropractic adjustment works very well.  It provides her relief
from her symptoms for up to a week before they start coming back.  She says
these treatments allow her to function.

[38]        
In terms of the difference between her symptomology in the first six
months following the accident and the first half of 2014, the plaintiff says
they have “definitely improved” although they remain constant.  The first six
months was much more painful and involved much greater dysfunction.  These
days, she is “usually okay” in the morning but the pain symptomology is worst
in the evening after a full days’ work.

[39]        
The plaintiff says that she undertook approximately twenty jobs in her
business up until the date of the accident.  These jobs involved lifting,
sorting, carrying, all of which she performed without limitations.  She
initially stated that after the accident she undertook one or two jobs (“possibly
three”) but later acknowledged the number may have been closer to six or
seven.

[40]        
The plaintiff’s 2008 income tax return reports receipt of Employment
Insurance benefits during that year in the amount of $12,520.  It also contains
a “statement of business activities” pertaining to the Now & Zen business
which reports gross business income of $12,157, gross profit (after deducting
cost of goods sold) of $4,591, other business expenses of $15,266, and
ultimately a net loss of income of $10,675.

[41]        
The bank statements for the business reflect deposits in 2008 of
approximately $12,540 of which approximately $4,500 was deposited before the
motor vehicle accident and the balance thereafter.

[42]        
The bank statements for 2009 reflect a number of deposits by way of
cheques issued in various amounts by MT Disposal King.  The plaintiff was
initially unable to explain these deposits but after having talked to her
husband during a break in the trial testimony, disclosed that she had been
doing delivery work for this company in February to May 2009 to supplement her
income.  The deposits, which aggregate approximately $2,500, were payments made
for the delivery of promotional pamphlets to display cases at Home Depot
throughout the Lower Mainland.

[43]        
In May 2009, the plaintiff took the “Career Builder Plus Program” at
Douglas College.  There, she first learned of and became very attracted to a
possible career as an ultrasound technician, and she set about pursuing that
goal.  To that end, she started volunteering at the “restorative care”
department of Burnaby Hospital, where she provided one-on-one visiting with
patients every Sunday.  She took a Medical Terminology course through Online
Learning.  In June and August 2009, she attended Coquitlam Continuing Education
to upgrade her high school marks in biology, mathematics, and physics,
accomplishing a B grade in all three.

[44]        
In July 2009, the plaintiff became an employee with the Sunwood Branch
of Envision Credit Union.  This was a part time position with benefits,
although the plaintiff says she was working almost full time hours.  Effective
February 1, 2010, the plaintiff moved from part time to full time status with
that employer, which by that time had changed its name to First West Credit
Union.

[45]        
In November 2009, the plaintiff applied to be enrolled in the Diagnostic
Medical Sonography program at BCIT.  In her application, she responded as
follows to the question why she chose to pursue a career in sonography:

There are a lot of reasons why I
chose this profession.  I love and enjoy working with people.  I want to be
able to provide them with a solution, and help patients.  I want to be there
for the patients.  I also chose this career because there is the option to work
part-time or full-time, so I am able to have a family and be there for them. 
In this profession I would not have to work shift work hours.  This career also
provides great compensation, benefits and ongoing education.

[46]        
One of the references identified by the plaintiff in her BCIT
application was her service supervisor at Envision, Mr. Miguel De
Oliveira, who later provided a very positive letter of reference emphasizing
her “great leadership role with her peers, outgoing and positive personality
which creates a positive atmosphere for the entire branch, and her tak[ing] the
lead for contests, games and marketing in the branch”.

[47]        
Another reference letter in the BCIT file is from the branch manager of
Envision, who says he was “consistently impressed by both Sarah’s attitude
towards her work and her performance on the job”.

[48]        
The plaintiff’s 2009 income tax return reports employment income of $10,613. 
The plaintiff acknowledged that the tax return did not include any reporting of
the income received from MT Disposal King or the income/expenses of the Now
& Zen business.

[49]        
In 2010, the plaintiff worked full time at Envision, earning income
reported on that year’s tax return in the amount of $23,370.  In September
2010, the plaintiff started her full time studies in the Diagnostic Medical
Sonography program at BCIT.

[50]        
The sonography program at BCIT was a full time program that entailed
lectures, laboratory and study time, as well as a number of practicums at
different medical facilities.  The plaintiff graduated the program with an
average grade of 81% and received a Diploma of Technology With Distinction. 
During her time in the program, she undertook practicums at G.R. Baker Hospital
in Quesnel (January to March 2011), Vancouver General Hospital (July to August
2012), St. Paul’s Hospital (August to September 2012), Lions Gate Hospital
(September to October 2012), and Eagle Ridge Hospital (October-November 2012).

[51]        
Vancouver Coastal Health was so impressed by the plaintiff that they
offered her regular full time employment at St. Paul’s Hospital in September
2012.  The position was effective December 3, 2012 and was dependent upon the
successful completion of the sonography program at BCIT.  The plaintiff
commenced that full time employment as scheduled and at the same time obtained
additional part time work as a “casual sonographer” with North Shore Medical
Imaging in North Vancouver, working four to six days per month.

[52]        
The plaintiff continued to work full time at St. Paul’s Hospital and
part time at North Shore Imaging throughout 2013.  In 2011 and 2012, while the
plaintiff was a full time student, her reported employment income on her income
tax return was $7,771 (First West Credit Union) and $3,091 respectively.  In
2013, the plaintiff’s reported income on her income tax returns was the
aggregate sum of $66,040 derived from St. Paul’s Hospital ($53,167) and North
Shore Imaging ($12,873).  The plaintiff testified that she did not miss any
work at either St. Paul’s Hospital or North Shore Imaging on account of her
injuries.

The Lay Witnesses

Jay Brunelle

[53]        
Mr. Brunelle is the plaintiff’s 37 year old husband.  The couple
were married in July 2011, some three years after the accident.  They first met
in October 2007 and first moved in together in August 2008, a couple of months
after the accident.

[54]        
Mr. Brunelle is a 16-year B.C. Ferries employee, currently working
as a “third engineer” in the engine room of one his employer’s ferries.  He has
a high school education which has been supplemented by further training and
certification in diesel mechanics and marine engineering.

[55]        
Mr. Brunelle confirmed his wife had left her former employment as a
hairdresser because of ongoing shoulder problems.  At the time of the accident,
she was “investing a lot of energy” into the new small business venture “Now
& Zen Organizing Solutions”.  She was part of a networking/mentoring group
and was trying to generate business as a “professional organizer”, i.e. a
person who assisted small business owners with the organization of workspace
and the creation of workflow systems.

[56]        
At the time of the accident, Mr. Brunelle was working shifts which
required him to be away for several days at a time.  However, he confirms that
in the first few weeks following the accident, the plaintiff was in
considerable pain and resting at her mother’s house.  She continued her networking
efforts and trying to work, but she was depressed, unhappy and disappointed at
her inability to actively and physically promote the new business.

[57]        
Mr. Brunelle was skeptical, albeit supportive, when the plaintiff
decided to pursue the upgrading of her education and new career as an
ultrasound technician (ultrasonographer).  She worked as a bank teller to help
pay for that pursuit and he is impressed that she “set a goal and went for it”
successfully.

[58]        
Mr. Brunelle confirmed the plaintiff had full time employment as a
sonographer with St. Paul’s Hospital and, more recently, since the couple moved
to Comox, B.C. where they have just purchased a home, as a full time
sonographer with St. Joseph’s Hospital in Comox.  He also confirmed that the
couple have been trying to get pregnant for the past year and half, and are
hoping to have a family soon.

[59]        
Mr. Brunelle says his wife had “good days and bad days”.  During
the latter, she has little desire to do anything outside of her work, but
prefers to stay at home, often icing her lower back and neck and lying down. 
She has trouble sleeping and moves about a lot.  The massage and chiropractic
treatment she receives every couple of weeks seems to provide considerable
relief, but as the days pass, she becomes increasingly tired and complaining of
pain before the next treatment takes place.

[60]        
On cross-examination, Mr. Brunelle confirmed that his wife still
undertakes recreational activities from time to time, including trail running,
camping, kayaking and skiing.  As well, the couple have travelled to Mexico
(twice), Alberta, Australia and Thailand (the latter for one month).  He says,
however, travel often involves stopping for breaks so the plaintiff can
alleviate discomfort by stretching and walking around.  He says there was “nothing
like this before the accident”.

Reisha Burke

[61]        
Ms. Burke is a 30 year old ultrasound technician who met the
plaintiff at the sonography program at BCIT in September 2010.  They have been
friends and, until recently, work colleagues ever since.

[62]        
Ms. Burke described the working conditions in the ultrasound department
in St. Paul’s Hospital.  The workstation equipment includes a
stationary/adjustable keyboard operated by the left hand which sits below a
large screen that displays the diagnostic imaging.  The transducer, which is
corded to the machine, is held in the right hand and is passed over the patient
who lies on a bed or stretcher to the right of the work station.  The arms do
not normally get used above shoulder height, and there is no heavy lifting
involved.  There will be reaching with the right hand, particularly if the
patient is larger, and sometimes pressure has to be applied to the transducer
so that the ultrasound can penetrate tissue.

[63]        
A typical work day involves 8-14 scans which on average take 30
minutes.  Each session also involves a review with the radiologist as well as
the completion of some paperwork.  The work hours are from 7:30 a.m. to 5:00
p.m. with a 30 minute lunch break and two 15 minute breaks during the day.

[64]        
Ms. Burke testified that she saw the plaintiff frequently.  They
would usually take their lunch and breaks together and sometimes they would go
for dinner after their shift had been completed.  She described the plaintiff
as a hard worker and a humorous personality.  She says that she has seen the
plaintiff in pain during the working day from time to time as evidenced by
obvious stiffness, rigid posture, and the like.  She has also witnessed some
mood changes in the plaintiff from time to time, but mostly the plaintiff
displays her “happy face”.

[65]        
Ms. Burke has also undertaken various recreational activities with
the plaintiff, including moderate hiking on the North Vancouver trails for up
to 2 hours, as well as dance classes.  The plaintiff exhibited no difficulty
during the hikes, but Ms. Burke noted mobility limitations with respect to
the dance class (some of the movements were difficult for the plaintiff to
perform).

The Medical Witnesses

Ron Mattison (Physiotherapist)

[66]        
Mr. Mattison is a physiotherapist who has been in practice since
1979.  He provided a medical/legal report regarding the plaintiff dated June
11, 2012 which was put into evidence with the consent of the defendant.  No
objection was taken to either the report nor to his qualifications as a
physiotherapist with expertise in the assessment and treatment of musculoskeletal
injury.

[67]        
The plaintiff attended Mr. Mattison’s centre for treatment fifteen
times between May 30 and November 14, 2008, and seven times between February 23
and March 30, 2009.

[68]        
Mr. Mattison described the plaintiff’s symptoms as “global”,
involving pain, stiffness and increased muscle tone in the shoulder, scapular
ribs, cervical and thoracic spines, and the hip/pelvis area.  Treatment
included normal physical therapy stretching protocols, correction strengthening
and postural exercises, as well as activity modification.  He observed that “although
the focus of treatment varied over the time spent at [his centre], the basic
complaints and problems did not change or resolve”.  He also noted that the
plaintiff “complained of headaches from September 2008 until March 2009, which
I wasn’t skilled at addressing”.

[69]        
Mr. Mattison was cross-examined about his pre-accident treatment of
the plaintiff, notably treatment for her left shoulder problem provided during
the course of ten visits in the period April to July 2007.  He described this
problem (“snapping scapula”) as a totally separate injury, in respect of which
it was “my impression that this problem was resolved with advice from an
orthopaedic surgeon, corrective exercise and a career change”.

[70]        
Mr. Mattison was confronted with a May 17, 2007 fax in his clinical
records from another physiotherapist from Delta B.C., Ms. Jane Knauer.  Ms. Knauer
indicated that the plaintiff had requested her to drop Mr. Mattison a note
to let him know what they were working on, and proceeded to describe issues and
treatment for the lower back.  He confirmed this treatment involved some of the
same areas of the body that he himself later treated following the accident.

Dr. Beverly Tyler (Chiropractor)

[71]        
Dr. Tyler has been a qualified and duly registered practitioner of
chiropractic medicine in British Columbia since 1998.  She has provided 77
sessions of chiropractic treatment to the plaintiff, starting in May 2010 and
as recently as March 29, 2014.

[72]        
Tendered as evidence were two reports prepared by Dr. Tyler dated
October 8, 2010 and June 4, 2012 respectively.  The defendant objected to the
admissibility of much of the reports, arguing firstly that chiropractors have
no expertise in and are not qualified to diagnose physical injuries and,
secondly, that the sections of the reports addressing the effects of the
injuries on the plaintiff’s employment and household/recreational activities
amounted to simply republishing the plaintiff’s own recitation of perceived
limitations, thereby constituting inadmissible argument in the guise of expert
opinion.

[73]        
A similar objection to the qualifications of a chiropractor to offer
expert opinion on the diagnosis, treatment and prognosis of injuries sustained
in a motor vehicle accident was made, and overruled, in Sloane v. Hill (Victoria
Registry 07-1401, September 29, 2008).  Much of the reasoning of Justice Grist
in that case squarely applied to the circumstances before me, at least insofar
as the objection to expert qualifications was concerned, and I overruled that
particular objection on the same basis.

[74]        
However, there is merit to the defendant’s criticism of the impugned paragraphs
containing a description of the plaintiff’s self-reporting of financial
hardship, inability to make a living, debt incurred on a line of credit, and
the like.  Dr. Tyler says she included this material in her report because
she was asked (by counsel) to comment on these areas.  To the extent these
passages constitute possibly self-serving recitation of the plaintiff’s own
narrative, I give them no weight, although I recognize the reporting of
symptomology such as depression, pain, sleeplessness and the like, can be a
legitimate component of diagnosis performed by a medical professional.

[75]        
Dr. Tyler’s opinion is that the plaintiff sustained a “hyperflexion/hyper-extension
strain/sprain injury to the entire spine affecting the musculature and the
joints”, i.e., in the common parlance, whiplash.  Treatment included
chiropractic spinal joint adjustments, low force mobilizations, soft tissue and
trigger point therapy to muscles along with advice respecting exercise, posture
and ergonomics to assist with rehabilitation.  She observes that there has been
a decrease in intensity of the symptomology over time, but the prognosis for
full return to pre-accident condition is guarded and the present symptoms are
likely to recur indefinitely.

[76]        
Dr. Tyler recommends ongoing chiropractic care at a frequency of
once every two weeks, decreasing to once per month should the symptoms
diminish.  She confirmed that such treatments are not curative in nature but
may provide temporary relief and will permit maintenance of functionality.

[77]        
On cross-examination, it became apparent Dr. Tyler had the
impression that the accident involved a substantial impact resulting in
significant damage to the vehicles, albeit not rendering them a “write-off”. 
The section of her report which purports to address the biomechanical impact of
the collision was further undermined when she acknowledged that she was
reciting “theory taught in chiropractic college” and I give this section of her
report no weight.

Dr. Martin Ray (General Practitioner)

[78]        
Dr. Ray has been the plaintiff’s family physician almost her entire
life.  He has prepared two reports dated August 9, 2010 and May 20, 2012
respectively, both of which were entered into evidence without objection.

[79]        
The plaintiff went to Dr. Ray on the same day as the accident.  She
reported immediate neck pain and a headache thereafter.  On examination, she
complained of neck pain, left flank pain, left arm pain and tenderness at the
cervical spine.  There was no evidence of bruising or swelling but there was palpable
tenderness and flexion/rotation also triggered pain in the neck and shoulders.

[80]        
Thereafter, the plaintiff attended upon Dr. Ray on multiple
occasions from May 2008 through October 2009 and  again from June 21, 2010
through December 2010.  She was also reviewed again in May 2012 for the
purposes of the second report.

[81]        
On each visit, the plaintiff complained about one or more of back and
neck pain and headaches, and examination would usually reveal soft tissue
trigger points and palpable tenderness, notwithstanding an ongoing regimen of
chiropractic treatments, massage therapy and a variety of physical fitness
activities.  Various visits involved complaints or diagnoses of depression and
sleeping difficulties.  Dr. Ray confirmed in his report that the plaintiff
had a history of depression going back several years, and also a pre-existing
and long-standing left shoulder injury which had required her to leave her
employment as a hairdresser.

[82]        
In his first report, Dr. Ray states that as of mid-June 2010:

She has continued to find
improvement with her chiropractic visits.  She was going every two weeks.  She
was attending gym five days a week doing core and cardio work.  She was still
experiencing sharp back or neck pain once or twice a week when bending forward.
On examination her posture was much improved.  There was still some remaining
trigger points but these were much improved as was her posture and general
fitness.  My opinion was that of resolving Grade 2 flexion extension low back
and resolving shoulder pain. … Sarah has recovered significantly from her
injuries and seems to be on a good course to full recovery.  Although she has
not quite regained her pre-accident status, I am confident that this will be
attained with the continuation of her active rehabilitation.

[83]        
In May 2012, Dr. Ray expresses the following opinion:

At this point I do not see Sarah having any significant
partial or total disabilities related to the injuries of her motor vehicle
accident.  I do see her as having symptoms that are continuous and persistent. 
She has been very diligent in carrying on with her life.  She should be
commended for this.  She has entered the final part of her ultrasonographer and
echosonography program.  The outlook for full employment and a long term successful
career in this area is excellent.  She should be congratulated for her
diligence in pursuing this training program and her success.  Sarah is working
out three times a week.  She is very fit.  She has done this in spite of
discomfort that persisted in her neck and low back.  Although she has
persisting pain and discomfort in these areas, it is much improved in terms of
her status at the time of the accident.  Sarah is currently four years since
the motor vehicle accident.  She remains symptomatic.  Her injuries all remain
soft tissue based.  They are not affecting any of the critical structures in
her back.  She has never had signs or symptoms of neurological injury.  In my
experience most patients have recovered completely from soft tissue injuries at
four years.  A significant likelihood that she will continue to have soft
tissue injuries past this date is somewhere in the 50% range.  It is important
that Sarah remain physically fit and continue to be aware and careful with her
biomechanics.  If she is able to do this I am confident she will remain fully
functional.  However, I suspect there is a greater than 50% chance she will
continue to have pain and discomfort and this will require treatment from time
to time.  Treatment could involve multiple modalities.  Sarah does report
benefit from chiropractic and massage as well as cortisone injections. … There
are no medications that I would recommend for further use other than the
occasional ibuprofen or Tylenol.

In summary, the injuries described by Sarah Brunelle in the
accident of May 13, 2008 are consistent with being rear-ended.  Her specific
complaints of upper neck, bilateral shoulder, low back, trapezius back pain are
consistent with a flexion, extension mechanism of injury.  She has worked hard towards
recovery and in spite of pain and discomfort has continued on with her life,
improving her fitness and also re-training for a profession more suitable.  The
only pre-existing condition significance would be that of her shoulder which
was aggravated by the motor vehicle accident and will continue to be an issue
for her.  It is quite safe to say that she has recovered her shoulder to her
pre-accident state.  She continues to have discomfort in her upper back and
lower back.  I do recommend continuation and any support she could have for a
personal trainer or a fitness program.  Additionally, she may require periodic
chiropractic or massage therapies to alleviate discomfort.  These treatments
should not be considered a mainstay of recovery as her fitness and active
rehabilitation program has proven so successful.

I suspect that she may continue
to suffer from ongoing pain and discomfort.  I do not feel that this pain and
discomfort will be limiting to her in terms of her occupation as an ultrasound
technician and that she should be able to return to her activities of daily
living and recreation.

Sheri Cairo-Martinez (Massage Therapist)

[84]        
Ms. Martinez has provided twelve massage therapy treatments to the
plaintiff between the period of August 2013 to March 2014, each treatment
session being one hour in length and costing $90.  The treatments were for the
plaintiff’s complaints of ongoing neck and low back pain.  On examination, the
plaintiff’s muscles were found to be tense with lots of “trigger points” (areas
of stiffness that cause pain).  Treatment involved the use of pressure and
stretching the muscles and soft tissue.

[85]        
By the end of each session, Ms. Martinez says much of the “hypertonicity”
in the muscles had subsided, but by the time the next treatment session
arrived, the situation was “right back to where we started”.

[86]        
Ms. Martinez confirmed that massage therapy provides symptom relief
only and is not curative.

Coral-Lei Schweigert (Kinesiologist)

[87]        
Ms. Schweigert is a Kinesiologist who provides massage therapy and
personal training services.  She treated the plaintiff in the period 2006-2007
for the latter’s left shoulder problems, although she has been unable to find
her records relating to those treatments.  She does, however, have clinical
notes respecting various treatments she provided to the plaintiff in the period
May to November 2008.  The notes reflect ongoing complaints of pain and
tenderness in the neck and back, including occasional spasms and headaches. 
They also refer to the plaintiff being frustrated and depressed about the pain
and the resulting physical limitations.

[88]        
Ms. Schweigert recommended a combination of yoga along with massage
and trigger point release therapy.

Louise Craig (Functional Capacity Evaluator)

[89]        
Louise Craig has been a duly qualified registered physiotherapist
licensed to practice in British Columbia since 1988.  She has not practiced as
a treating physiotherapist for the past seven years, and her current full time
occupation is the performance of functional capacity evaluations (90%) and cost
of future care assessments (10%) for private insurers, the legal profession,
employers and ICBC.  She has provided over 1,500 functional capacity
evaluations and rehabilitation to over 700 clients with soft tissue injuries.

[90]        
Ms. Craig has been accepted on several occasions as an expert
witness in the Supreme Court of British Columbia in the field of functional
capacity evaluations and physiotherapy.  Her functional capacity evaluation
report respecting the plaintiff dated January 21, 2014 was tendered into
evidence.  The defendant did not object to the Ms. Craig’s qualifications or to
the content of her report.

[91]        
Ms. Craig assessed the plaintiff on January 20, 2014 in Vancouver. 
A series of tests and exercises were administered to the plaintiff over a
six-hour period, and a musculoskeletal examination was performed.  Data was
generated and conclusions made respecting such things as the plaintiff’s range
of motion, fitness, strength and coordination, abilities and limitations
respecting repetitive movements such as stooping, reaching, and the like.

[92]        
Ms. Craig’s conclusions included the following:

·                
at the time of the assessment the plaintiff did not meet the
physical demands of the job of a “Professional Organizer” (as the plaintiff had
described that position);

·                
the plaintiff partially met the physical demands of her current
occupation as a Medical Sonographer, although she is working full time at that
position nonetheless;

·                
“Ms. Brunelle demonstrated limitations to her neck and low
back that reduce her ability to work at more physically demanding jobs. 
Sedentary to light occupations with limited demands for medium work, although
more in keeping with her current physical capacity will require accommodation
allowing for positional and task changes, regular stretching and proper
ergonomics to best manage symptom aggravation of her neck and low back.  She
will not tolerate occupations with demands for unsupported reaching and stooped
or kneeling posture.  She will not tolerate repetitive bending or fast paced
repetitive lifting.  As such, the scope of occupations once viable from a
physical perspective for Ms. Brunelle, are reduced leaving her with
reduction in her competitive employability”.

[93]        
With respect to ongoing rehabilitation and pain management treatment, Ms. Craig
expressed the following opinions:

·                
the plaintiff appears to have reached maximum physical
rehabilitation, having participated in extensive treatment and rehabilitation
efforts and diligently maintaining an exercise program;

·                
continued participation in an exercise program is suggested with
periodic review and progression under the guidance of a physiotherapist or
kinesiologist approximately three to four times per year for the coming two to
three years, and twice a year thereafter for as long as her symptoms persist;

·                
the plaintiff should continue to participate in yoga and Pilates
and should continue to attend chiropractic treatment and massage therapy as a
means of pain management.  Such treatment and therapy is not anticipated to be
curative but will permit maintenance of functionality;

·                
two chiropractic treatments ($45 per session) and one massage
therapy ($95 per session) on a monthly basis is recommended for as long as the
plaintiff’s symptoms persist;

·                
the plaintiff has difficulties with household tasks involving
repetitive or sustained stooping and heavier lifting and if her husband is no
longer able to assist her with such tasks, she will require outside assistance

[94]        
Of course, the rehabilitation and treatment modalities endorsed by Ms. Craig
are based in large measure on the plaintiff’s self-reporting as to need and
effect.  It is evident Ms. Craig accepted that reporting:

Ms. Brunelle reports her
condition to have stabilized over the last six to twelve months.  She states
that she feels she will be at this level forever.  Her low back and neck pain
are constant.  She now focusses on pain management.

Dr. Cecil Hershler (Physiatrist)

[95]        
Dr. Hershler is a physiatrist, a specialist in physical medicine
and rehabilitation, who has been practicing in Vancouver since January 1985.  He
has been a clinical associate professor in the school of rehabilitation
medicine and an adjunct professor in mechanical engineering at the University
of British Columbia.  He has also done research in biomechanical engineering
and is a diplomate in the Canadian and American Academies of Pain Management.

[96]        
Dr. Hershler has been qualified on many occasions as an expert
witness in the field of physical medicine and rehabilitation.  In this case, no
objection was taken to his qualifications or his expertise. His two reports
dated November 10, 2011 and January 16, 2014 were admitted into evidence
without objection.

[97]        
Dr. Hershler’s first report is based on an assessment of the
plaintiff which occurred over a 1½ – 2 hour period on November 10, 2011.  His
second report is based on a further assessment of the plaintiff which took
place on January 15, 2014.

[98]        
In his reports, Dr. Hershler opined that the motor vehicle accident
of May 13, 2008 caused soft tissue injury to the plaintiff’s neck and
mechanical injury to the lumbar spine.  He concludes that because the plaintiff
consistently experiences pain with extension of the back, but not with flexion,
the injuries are in the facet joints, with tightness and myofascial pain in the
associated muscles and referred pain into the sacroiliac joints.  He thinks the
plaintiff likely has permanent injury to muscle structures and more likely than
not that she will remain with some level of pain indefinitely.

[99]        
In the January 2014 assessment, Dr. Hershler recommended Pulsed
Signal Therapy as an alternative to conventional treatments. Pulsed Signal
Therapy is available in Dr. Hershler’s private clinic.  He suggested in
his report that there was a 70% chance the plaintiff would respond to this
treatment and would be able to function better, without pain.  The plaintiff
did undergo the suggested therapy but at the date of trial (three months later)
the plaintiff’s ongoing symptomology indicated the therapy may not have been
successful.

[100]     Dr. Hershler
noted in his reports the plaintiff’s injury to the left shoulder blade which
pre-existed the motor vehicle accident.  The plaintiff advised him that the
shoulder blade was injured when she was 17 years old when she was kicked in the
back while playing high school soccer.  No fractures were revealed on
investigation but there was thought to be an injury to the soft tissue (bursa)
which resulted in persistent pain in that area and ongoing physiotherapy
treatment.  The plaintiff told Dr. Hershler that the pain in the left
shoulder was a “chronic aching” but that it was manageable.

[101]    
Dr. Hershler says that since 1990 he has treated “probably thousands”
of patients with soft tissue, “whiplash” injuries.  Based on his own experience,
he states:

·                
80% of the patients with these types of injuries will recover
within three years (symptomology steadily decreasing to tolerable levels with
the individual being able to regain full function);

·                
10% of patients will recover within five years; and

·                
10% remain with injuries and symptomology that is permanent, i.e.
chronic pain.

[102]    
As indicated, Dr. Hershler’s opinion is that the plaintiff will
remain with some level of pain indefinitely and he concludes:

It is my opinion that the soft
tissue injuries have led to a permanent, partial disability with respect to
pain.  Ms. Brunelle will have difficulty doing heavy physical tasks
(repetitive digging, lifting, twisting) or sustained sitting or standing.  As
she ages, her ability to tolerate pain will also decrease.

[103]     In his
reports, Dr. Hershler comments favourably on the plaintiff’s hard working
ethic and her ability to tolerate pain.  On cross-examination he stated that
the plaintiff is managing and functioning well within the nature of her pain
and that the plaintiff should be able to continue with her employment as a
sonographer.

[104]     Dr. Hershler
noted that “pain intervention therapy”, which permits activity and ongoing
functionality, is very important.  He notes that the chiropractic treatments
and massage therapy are helping to reduce the plaintiff’s headaches and to
manage her pain.  He recommends that these be maintained on an ongoing basis,
although he suggests the plaintiff should try to reduce the frequency of the
treatments to monthly over the next year.  He says the plaintiff should be
encouraged to remain as fit and as active as possible within the boundaries of
her pain and she should continue with her current level of physical activity.

Dr. Jordan Leith (Orthopaedic Surgeon)

[105]     Dr. Leith
has been an orthopaedic surgeon since 1999.  He is a clinical associate
professor at U.B.C.’s Department of Orthopaedic Surgery.  He has a
sub-specialty focus on shoulder, elbow and knee reconstruction along with
arthroscopic surgery.

[106]     At the
request of the defendant, Dr. Leith assessed the plaintiff on December 20,
2011 and authored a medical-legal evaluation report dated January 11, 2012.  No
objection was taken to the admissibility of either the report or Dr. Leith’s
qualifications as an expert in orthopaedic surgery and the assessment of
musculoskeletal injury.

[107]     Dr. Leith
was provided with photographs of the two vehicles involved in the accident and
he notes in his report that the only visible damage appears to be minor
scratches to the bumper.  He says the lack of significant motor vehicle damage
indicates this was “a low energy collision with representative minor low energy
trauma”.

[108]    
The highlights of Dr. Leith’s assessment and opinion are as
follows:

·                
the plaintiff sustained a “minor whiplash” as a result of the
accident;

·                
there is no sign of any significant bodily injury or physical
impairment arising from the accident;

·                
he would normally expect a full recovery from this type of injury
to occur over a period of 4-12 weeks;

·                
he “cannot explain the prolonged nature of [the plaintiff’s]
recovery”;

·                
he has no treatment recommendations to make other than “remaining
as physically active as possible and implementation of supportive measures”;
and

·                
“Hopefully with the passage of time the symptoms will eventually
settle”.

[109]     On
cross-examination, Dr. Leith acknowledged that with respect to whiplash
injuries, a very small percentage of patients do not heal and continue to have
pain complaints.  While he acknowledged he could not say what might have been
the actual force involved in the impact, in his opinion the damage to the motor
vehicle combined with “basic laws of biomechanics” to indicate that the
collision did not involve a “high energy transfer”.

[110]     Dr. Leith
said the plaintiff’s physical examination was “completely normal” and the
plaintiff’s ongoing complaints of subjective pain represented a “bit of a
disconnect”.  Since there is no sign of major injury, he suggested “non-physical
factors have to be considered” as part of the explanation for the plaintiff’s
ongoing pain symptomology.  He does not address what these “non-physical”
factors might be.

[111]     Importantly,
Dr. Leith says that although he cannot find any physiological basis for
the plaintiff’s complaints, he is “not denying the pain complaints are real”.

Causation and the Assessment of Damages in a
Negligence Case

[112]    
A claim for personal injury damages arising out of a motor vehicle
accident is, of course, a claim in tort (negligence).  As with any negligence
claim, in order to succeed, the plaintiff must prove on a balance of
probabilities the following constituent elements of the tort:

1.              
the defendant owed the plaintiff a duty of care (to avoid acts or
omissions which might be reasonably foreseeable to cause injury to the latter);

2.              
the defendant’s acts or omissions breached the standard of care
applicable to that duty;

3.              
the plaintiff suffered damage of a sort that is recognized and
compensable in law; and

4.              
the defendant’s breach was causative, in both fact and law, of the
plaintiff’s damage.

(See Hill v.
Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007]
3 S.C.R. 129, at para. 91; Mustapha v. Culligan of Canada Ltd.,
2008 SCC 27, [2008] 2 S.C.R. 114 at para. 3; Ediger v. Johnston, 2013
SCC 18, [2013] 2 S.C.R. 98 at para. 24.)

[113]     Where the
plaintiff’s damage is caused by the negligence of two or more persons (possibly
including the plaintiff herself), the court must determine the degree to which
each person is at fault.  The apportionment of liability as between such
at-fault persons is governed by the Negligence Act, R.S.B.C. 1996,
c. 333.  The apportionment is determined on the basis of the degree to
which each person was at fault, not on the extent to which each person’s fault
caused the plaintiff’s damage: Bradley v. Bath, 2010 BCCA 10 at para. 24;
MacDonald (Litigation guardian of) v. Goertz, 2009 BCCA 358 at para. 55.

[114]    
In this case, the defendant admits that the accident occurred and also “admits
that the accident was caused wholly by her negligence”: Response to Civil
Claim, filed August 18, 2010, Division 2, paragraph 2.  However, in what is
almost certainly a “boiler plate” pleading, the defendant also alleges:

·                
no injury or damages to the plaintiff as a result of the
accident;

·                
contributory negligence/fault on the part of the plaintiff for
failing to properly use the seatbelt and headrest in her car;

·                
attribution of the plaintiff’s injuries/damages to pre-existing
or subsequent medical conditions not caused or aggravated by the accident; and

·                
a failure to mitigate loss/damages.

[115]     At the
conclusion of the trial, the defendant effectively abandoned any allegations of
contributory fault or failure to mitigate on the part of the plaintiff.  As
well, the defendant admitted that the accident caused some injury and some loss
in respect of which the plaintiff is entitled to some compensation.  However,
the defendant vigorously disputes the nature and extent of the plaintiff’s
injuries and losses caused by the accident.

[116]    
In Hoy v. Williams, 2014 BCSC 234, I had occasion to summarize
causation principles as follows:

112      Much judicial ink has been spilled on this subject. 
Fortunately, a very useful and recent summary of the law in this area can be
found in Brewster v. Li, 2013 BCSC 774 as follows:

[77]      In cases of negligence, the plaintiff must
establish: (1) that the defendant was the “cause in fact” of the damage
suffered and (2) that the defendant was a “proximate cause” of the damage, “in
other words, that the damage was not too remote from the factual cause. … The
remoteness inquiry assumes that but for the defendant’s wrongful act, the
plaintiff’s loss would not have occurred, but places legal limits on the
defendant’s liability” (Hussack v. Chilliwack School District No. 33,
2011 BCCA 258 at para. 54, 19 B.C.L.R. (5th) 257).

[78]      The plaintiff must establish causation for both
injury and loss.  If a defendant did not cause an injury, (s)he is not liable
for the losses flowing from that injury.  Even if a defendant did cause an
injury, (s)he is not liable for any losses or damages that were not caused by
the injury.  In Blackwater v. Plint, 2001 BCSC 997 at para. 364, 93
B.C.L.R. (3d) 228 [Blackwater BCSC], Chief Justice Brenner, as he then
was, adopted the following dichotomy between “injury” and “loss”:

“injury” refers to the initial physical or mental impairment
of the plaintiff’s person as a result of the [defendant’s act], while “loss”
refers to the pecuniary or non-pecuniary consequences of that impairment.

[79]      The basic principle of tort law is that the
defendant must put the plaintiff back in the position she would have been in
had the defendant’s tortious act not occurred (Athey v. Leonati, [1996]
3 S.C.R. 458 at para. 32).  The corollary of this principle is that the
defendant need not compensate the plaintiff for any loss not caused by his/her
negligence or for “debilitating effects of [a] pre-existing condition which the
plaintiff would have experienced anyway” (Athey at para. 35).

[80]      Since the burden is on the plaintiff to prove
causation, she must establish that the defendant’s tortious act caused both an
injury (i.e. her pain disorder and/or her depression) and a resulting loss
(e.g. non-pecuniary loss or lost wages).  “The former is concerned with
establishing the existence of liability; the latter with the extent of that
liability” (Blackwater BCSC at para. 363).  In the case at hand, if
the plaintiff cannot establish that one of her injuries was caused by the MVA,
then she cannot recover from the defendant for the losses that flowed from that
injury.  Additionally, if the plaintiff cannot establish that the injury caused
by the defendant, in turn, caused a certain loss, then she cannot recover from
the defendant for that loss.

[81]      The test for causation in Canada is the “but-for”
test (Bradley v. Groves, 2010 BCCA 361 at para. 37, 8 B.C.L.R. (5th)
247; Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-22, [2007] 1
S.C.R. 333; Blackwater v. Plint, 2005 SCC 58 at para. 78, [2005] 3
S.C.R. 3 [Blackwater SCC]; Clements v. Clements, 2012 SCC 32 at para. 8,
[2012] 2 S.C.R. 181).  To assess whether the defendant caused an injury, the
trial judge asks if, without the defendant’s tortious act, the injury would
have resulted.  If the answer is “yes”, the defendant is not liable for the
injury or the losses flowing from it (Athey at para. 41).  If the
answer is “no”, the defendant is liable to the plaintiff for the whole of the
losses flowing from the injury (Athey at paras. 22 and 41).

[82]      Once causation for an injury is established, the
defendant is liable to the plaintiff for all of the loss(es) flowing from that
injury.  The losses “flowing” from an injury are those losses which the
plaintiff proves, on a balance of probabilities, would not have occurred “but-for”
the defendant’s act (Blackwater SCC at para. 78; Smith v.
Knudsen, 2004 BCCA 613 at para. 26, 33 B.C.L.R. (4th) 76).

[83]      It is also necessary to recognize that this case
engages both “thin skull” and “crumbling skull” principles.  Both these
principles were succinctly summarized in Athey:

[34] … The “crumbling skull” doctrine is an awkward label
for a fairly simple idea. It is named after the well-known “thin skull” rule,
which makes the tortfeasor liable for the plaintiff’s injuries even if the
injuries are unexpectedly severe owing to a pre-existing condition.  The
tortfeasor must take his or her victim as the tortfeasor finds the victim, and
is therefore liable even though the plaintiff’s losses are more dramatic than
they would be for the average person.

[35] The so-called “crumbling skull” rule simply recognizes
that the pre-existing condition was inherent in the plaintiff’s “original
position”.  The defendant need not put the plaintiff in a position better
than his or her original position.  The defendant is liable for the injuries
caused, even if they are extreme, but reed not compensate the plaintiff for any
debilitating effects of the pre-existing condition which the plaintiff would
have experienced anyway.  The defendant is liable for the additional damage but
not the pre-existing damage: Cooper-Stephenson, supra, at
pp. 779-780 and John Munkman, Damages for Personal Injuries and Death
(9th ed. 1993), at pp. 39-40.  Likewise, if there is a measurable risk
that the pre-existing condition would have detrimentally affected the plaintiff
in the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award: Graham v. Rourke, [1990]
O.J. No. 2314, supra; Malec v. J.C. Hutton Proprietary Ltd.,
169 C.L.R. 638, supra; Cooper-Stephenson, supra, at
pp. 851-852.  This is consistent with the general rule that the plaintiff
must be returned to the position he would have been in, with all of its
attendant risks and shortcomings, and not a better position. [Emphasis in
original.]

[84]      Recent cases from both the B.C. Court of Appeal
and B.C. Supreme Court continue to paraphrase this language.  Some examples
include: T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670
at paras. 26-37, 22 B.C.L.R. (4th) 1; Zacharias v. Leys, 2005 BCCA
560 at paras. 13-21, 219 B.C.A.C. 88; Penland v. Lofting, 2008 BCSC
507 at paras. 93-97, 60 C.C.L.T. (3d) 265; Carr v. Simpson, 2010
BCSC 1511 at paras. 113-117.

113      The T.W.N.A. v. Canada case referred to above
was a unanimous decision from a five member panel of the Court of Appeal.  It
reviewed the principles outlined in Athey v. Leonati, supra, and
addressed pre-existing medical conditions and how they affect the assessment of
damages.  The Athey case articulated the notion of a “measurable risk”
or “realistic chance” of a subsequent medical problem occurring at some point
in the future even without the accident that is the subject matter of the
lawsuit, noting on that account

… a reduction of the overall damage award may [be]
considered.  This is because the plaintiff is to be returned to his “original
position”, which might have included a risk of spontaneous disc herniation in
the future [in any event]. …

(Athey at para. 48, T.W.N.A. at para. 34-35)

114      The court in T.W.N.A. held that a defendant
need not prove on the balance of probabilities that the pre-existing condition
would have actually caused the subsequent loss regardless of the accident. It
noted:

… a weakness inherent in a plaintiff that might
realistically cause or contribute to the loss claimed regardless of the
tort is relevant to the assessment of damages.  It is a contingency that should
be accounted for in the award.  Moreover, such a contingency does not have to
be proven to a certainty.  Rather, it should be given weight according to
its relative likelihood. (para. 48)

[Underline emphasis added.]

115      If the said “measurable risk” or “realistic chance”
can be demonstrated on the evidence, then “the net loss attributable to the
tort will not be as great and damages will be reduced proportionately” (T.W.N.A.
at para. 36 citing Athey paras. 31 – 32).

116      Similar principles are articulated in Moore v.
Kyba, 2012 BCCA 361 at paras. 32 – 37 and where the court also
described the operation of the “crumbling skull” rule as follows at para. 43:

… if the plaintiff had a pre-existing condition and there
was a measurable risk that that condition would have resulted in a loss anyway,
then that pre-existing risk of loss is taken into account in assessing the
damages flowing from the defendant’s negligence. …

[117]    
The distinction between cause of injury and cause of loss
is important in this case.  For example, the defendant does not deny that the
plaintiff sustained some (the claims, minor) injury as a result of the
accident, but she denies that those injuries caused or contributed to the
demise of the plaintiff’s business, Now & Zen.  In that regard, the
defendant argues the business:

1.              
failed for reasons other than any injury sustained by the plaintiff, or

2.              
even if the injury contributed to the failure, such failure was
inevitable in any event and hence no damages should be assessed on that
account.

Credibility and Reliability of the Plaintiff’s
Evidence

[118]     The
sensation of pain and the disabling effect of pain on physical capabilities and
enjoyment of life is a subjective experience unique to any given individual. 
Neither the pain sensation nor the experience of pain can be “objectively”
identified by medical imaging.

[119]     In personal
injury cases where the chief complaint is of severe and prolonged pain in
excess of what might be expected on the basis of organic findings, the
credibility of the plaintiff can play a very significant role.  The medical
evidence invariably reflects the plaintiff’s self-reporting.  If the
credibility of the plaintiff’s testimony is found to be lacking, the validity
of any expert opinions based upon the self-reporting can be seriously
undermined.

[120]    
In “whiplash” cases, the courts in this province very often refer to the
remarks of Chief Justice McEachern in Price v. Kostryba (1982), 70
B.C.L.R. 397 (S.C.):

1          The assessment of damages in a moderate or
moderately severe whiplash injury is always difficult because plaintiffs, as in
this case, are usually genuine, decent people who honestly try to be as
objective and as factual as they can.  Unfortunately, every injured person has
a different understanding of his own complaints and injuries, and it falls to
judges to translate injuries to damages.

4          Perhaps no injury has been the subject of so much
judicial consideration as the whiplash.  Human experience tells us that these
injuries normally resolve themselves within six months to a year or so.  Yet
every physician knows some patients whose complaint continues for years, and
some apparently never recover.  For this reason, it is necessary for a court to
exercise caution and to examine all the evidence carefully so as to arrive at
fair and reasonable compensation.

5          In Butler v. Blaylock, [1981] B.C.J. No. 31,
decided 7th October 1981, Vancouver No. B781505, I referred to counsel’s
argument that a defendant is often at the mercy of a plaintiff in actions for
damages for personal injuries because complaints of pain cannot easily be
disproved.  I then said:

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

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

[121]     Several
recent cases have addressed the various factors to be considered when assessing
the credibility of a plaintiff or any other witness.

[122]    
In Bradshaw v. Stenner, 2010 BCSC 1398 at paras. 186-187,
aff’d 2012 BCCA 296, the court stated:

186      Credibility involves an assessment of the
trustworthiness of a witness’ testimony based upon the veracity or sincerity of
a witness and the accuracy of the evidence that the witness provides (Raymond
v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). 
The art of assessment involves examination of various factors such as the
ability and opportunity to observe events, the firmness of his memory, the
ability to resist the influence of interest to modify his recollection, whether
the witness’ evidence harmonizes with independent evidence that has been
accepted, whether the witness changes his testimony during direct and
cross-examination, whether the witness’ testimony seems unreasonable,
impossible, or unlikely, whether a witness has a motive to lie, and the
demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202
(Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya];
R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)). 
Ultimately, the validity of the evidence depends on whether the evidence is
consistent with the probabilities affecting the case as a whole and shown to be
in existence at the time (Farnya at para. 356).

187      It has been suggested
that a methodology to adopt is to first consider the testimony of a witness on
a ‘stand alone’ basis, followed by an analysis of whether the witness’ story is
inherently believable.  Then, if the witness testimony has survived relatively
intact, the testimony should be evaluated based upon the consistency with other
witnesses and with documentary evidence.  The testimony of non-party,
disinterested witnesses may provide a reliable yardstick for comparison. 
Finally, the court should determine which version of events is the most
consistent with the “preponderance of probabilities which a practical and
informed person would readily recognize as reasonable in that place and in
those conditions” (Overseas Investments (1986) Ltd. v. Cornwall Developments
Ltd. (1993), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)).

[123]    
More recently, in Bergen v. Guliker, 2014 BCSC 5, the court
stated:

The law on assessing credibility

24        In gauging a witness’ evidence, a court may, inter
alia, consider the factors summarized by Thomson J. in Unique Tool &
Gauge Inc. v. Impact Tool & Mould Inc., [2002] O.J. No. 681
(S.C.J.) at para. 121:

[121] … [The witness’] ability and opportunity to observe;
his appearance and manner while testifying; his power of recollection; any
interest, bias or prejudice he may have; any inconsistencies in his testimony
and, the reasonableness of his testimony, when considered in the light of its
harmony with the preponderance of the probabilities that the evidence was
credible, believable and reliable.

Justice Thomson’s credibility analysis was upheld on appeal: Unique
Tool & Gauge Inc. v. Impact Tool & Mould Inc., 2003 CanLII 16539
(O.N.C.A)

25        A witness’ interests are a relevant factor to
consider in assessing credibility.  However, as Rowles J.A. said in R. v.
R.W.B., 24 B.C.A.C. 1, [1993] B.C.J. No. 758 at para. 28:

[28] … Whether a witness has a motive to lie is one factor
which may be considered in assessing the credibility of a witness, but it is
not the only factor to be considered. … it is essential that the credibility
and reliability of the [witness’] evidence be tested in the light of all of the
other evidence presented.

26        In Ng v. Ng, 2011 BCSC 192, Cullen J., as he
was then, rejected the evidence of one witness as flawed because “it relies on
the mechanism of coincidence, it includes improbable and elaborate explanations
to explain away telling circumstances and, in connection with [certain
evidence] it relies on a manufactured foundation” (para. 326).

27        In R. v. Béland, [1987] 2 S.C.R. 398,
McIntyre J., writing for the majority, said at 418-419:

… in the resolution of disputes in litigation, issues of
credibility will be decided by human triers of fact, using their experience of
human affairs and basing judgment upon their assessment of the witness and on
consideration of how an individual’s evidence fits into the general picture
revealed on a consideration of the whole of the case.

28        In Faryna v. Chorny (1951), [1952] 2 D.L.R.
354 (BCCA), O’Halloran J.A. observed at 357:

The credibility of interested witnesses, particularly in
cases of conflict of evidence, cannot be gauged solely by the test of whether
the personal demeanour of the particular witness carried conviction of the
truth.  The test must reasonably subject [the witness’] story to an examination
of its consistency with the probabilities that surround the currently existing
conditions. In short, the real test of the truth of the story of a witness in such
a case must be its harmony with the preponderance of the probabilities which a
practical and informed person would readily recognize as reasonable in that
place and in those conditions. …

29        How does a trier of fact assess what evidence is in
“harmony with the preponderance of the probabilities”?  As Ryan J.A. recently
stated in her concurring reasons in R. v. Sue, 2011 BCCA 91 at para. 47:

[47] Doubtless, a skilled liar or a good actor can easily
feign sincerity. But it is also the case that most people of average
intelligence can tailor a story to fit the circumstances if they put their
minds to it. Thus, a trier of fact will test a story for both its logic and,
with the appropriate cautions, the manner in which it was told.

[124]     The
defendant challenges the reliability and veracity of the plaintiff’s testimony
in several respects, and suggests the plaintiff should be accorded little
credibility.  This is an important consideration, the defendant says, because
the plaintiff is asking the court to rely on her subjective reports of pain as
proof of continuing injury, subjective reports that, by their nature, are very
difficult to challenge.

[125]     There are
indeed several instances where the plaintiff’s evidence appears to have been
inaccurate and her demeanour questionable.  I set out several examples below,
in no particular order.

[126]     The
plaintiff testified that in the first week following the accident, she had pain
in her neck and lower back, headaches and difficulty sleeping.  She thought her
pre-existing left shoulder problem had been aggravated but was “not sure”. 
During this period it was “hard to get out of bed”.  On cross-examination she
was presented with her personal bank account records and, by virtue of the
direct debit entries, was forced to admit she was out and about and making
purchases every single day for the rest of the month at a wide variety of
businesses located in Delta, Tsawwassen, New Westminster, White Rock, Nanaimo,
Richmond, Vancouver, Burnaby, and Ladner.  The same was true in June 2008, when
there was also a trip to the Sunshine Coast in addition to these other Lower
Mainland cities.

[127]     In her
direct examination, the plaintiff testified she only did one or two, possibly
three, organizing jobs after the accident.  On cross-examination, she was
confronted with the records for the Now & Zen bank account which reflected
a variety of payments received/deposits from the end of May 2008 through March
2009.  She was unable to explain the deposits but after talking to her husband
during the break (without the knowledge of her counsel, I hasten to add)
volunteered a disclosure of having been contracted on a casual basis by MT
Disposal King to deliver pamphlets throughout the Lower Mainland during the
spring of 2009.  Neither the MT Disposal King cheques nor indeed the contract
had been disclosed in the litigation before that point.  As well, on May 27,
2008 the plaintiff transacted a $15,000 loan agreement with the Canadian Youth
Business Foundation, presumably evidencing an intention to continue with the
Now & Zen business.  The same Now & Zen document package which was put
into evidence by the plaintiff also contained testimonials from customers dated
October 17, 2008 and November 27, 2008, expressing appreciation for the work
undertaken by the plaintiff at or around that time.

[128]     The
documentation respecting the CYBF loan did not include any of the application
material explaining the reason for the loan, nor was there included any
material relating to the mentoring and quarterly business report requirements
that were said to be a condition of the loan.  The non-disclosure of available
documents explaining the status of the company’s business affairs is troubling.

[129]     The
plaintiff obtained copies of the eight cheques from MT Disposal King and
produced them during her testimony at the trial.  The defendant asks, “why did
the plaintiff not obtain copies of all of the cheques that had been deposited
into her account from the date of the accident through 2009?” and suggests the
plaintiff was “cherry-picking” which cheques she wanted the court to review to
disguise the volume of business being undertaken.  The defendant also says that
during the course of the litigation, requests had been made on more than one
occasion for the production of all documents related to the business and
none of these cheques were forthcoming.  Again, this is troubling.

[130]     In
November 2008, the plaintiff signed a “statement of values” for the purposes of
obtaining a property and liability insurance policy for Now & Zen
Organizing Solutions.  The values set out in the document, which were certified
under the plaintiff’s signature as being the “actual value of the property”,
were far in excess of the actual property and the actual values in question. 
When asked to explain this demonstrable inaccuracy, the plaintiff repeatedly
responded “I am not sure” and “I do not remember”.

[131]     Similarly,
the plaintiff was cross-examined on various entries in the clinical records of
the various medical practitioners who had treated her before the accident, but
would not acknowledge reporting pain in areas other than her left shoulder. 
When shown pain diagrams in the physiotherapist’s file dated February 2, 2006
and March 9, 2007, showing other areas of the body where the plaintiff was
experiencing pain, the plaintiff would not acknowledge that she filled out this
information (“I don’t know”).  When confronted with entries in the files and
asked to agree with the complaints or events written down, the plaintiff would
not acknowledge what was, at least in some instances, plainly written (“I don’t
know, I didn’t write this”).

[132]     The
plaintiff testified that although she did not miss any work either at St. Paul’s
Hospital or North Shore Imaging because of her injuries, she did experience
pain at work.  On cross-examination she was confronted with her examination for
discovery testimony where, in response to the questions “are you having any
difficulty performing your job at St. Paul’s Hospital/North Shore Imaging?”,
she responded “no”.  She then explained that at the examination for discovery
she had been “asked the wrong question” because there was no direct inquiry
about pain.

[133]     Further,
there is a significant disconnect between the plaintiff’s reports of disabling
pain on the one hand and the variety of activities she has engaged in since the
accident.  She has travelled widely, including Alberta, Princeton, Penticton,
Gibsons, Tofino, and Nanaimo in August and September of 2008, and holidayed in
Mexico (2009, 2011), Alberta (2012), Thailand (2012), and Australia (2013). 
She has taken motorcycle trips with her husband and indeed herself took lessons
and obtained a motorcycle license in 2009.  She visited waterslides at Cultus
Lake in September 2010.  In the spring of 2013, she participated in a
10 km trail race in North Vancouver (finishing 16^th out of 57
participants), another 12 km trail race in North Vancouver (finishing 12^th)
and an 8 km race in Vernon.  She worked full time for Envision Financial,
studied full time for two years in the sonography program including practicum
around the province, and has worked full time as a sonographer since December
2012.  It is clear that even if the plaintiff is suffering some level of chronic
pain, she is nonetheless coping very well and is capable of quite demanding
physical activities.

[134]     Despite
all of the above, the simple fact remains the plaintiff has sought out and, out
of her own pocket, has paid for over 130 physiotherapy, chiropractic, and
massage treatment sessions since the accident, in each case complaining of pain
which she attributes to injuries sustained in the motor vehicle accident.  Even
approaching the plaintiff’s evidence with caution, having regard to the
credibility issues referred to above, I do not believe she is feigning non-existent
symptomology.  She clearly experiences some level of pain, although she still
has a high level of functionality and activity.

Findings as to Injury, Causation and Loss

[135]     The
defendant submits this was a “trivial” accident involving very little force. 
While the defendant admits the plaintiff suffered some injury as a result of
the collision, she argues this case should be treated like most minor soft
tissue injury accidents, wherein the injuries heal within three to six months. 
The defendant also suggests that the nature of the plaintiff’s ongoing pain complaints
is almost entirely subjective self-reporting and because her evidence is
unreliable, her reporting to the treating and assessing doctors is also
unreliable, and therefore the opinions expressed by these doctors should be
given little weight.

[136]     The
defendant has not suggested the plaintiff is feigning non-existent injury.  To
the contrary, the defendant acknowledges some injury occurred.  Rather, the
defendant says that because there is no physical explanation for the
plaintiff’s ongoing complaints so long after the accident, the complaints should
be ignored or treated as being attributed to some unexplained cause not related
to the accident.

[137]     The
difficulty with the defendant’s position is that the plaintiff does have
persistent and ongoing complaints of pain in all the years since the accident. 
She has consistently complained to the treating and assessing medical
professionals as to the existence and nature of the pain symptomology.  There
is no evidence the symptomology does not exist.  Even the defendant’s own
expert medical witness, (Dr. Leith) says that, although he cannot find any
physiological basis for the plaintiff’s complaints, he is “not denying the pain
complaints are real”.

[138]     The
evidence is overwhelming that the plaintiff sustained a soft tissue injury in
the accident that has triggered pain symptomology which has stubbornly
persisted over the years and which seems likely to continue into the
foreseeable future, and I make a finding to that effect.  The condition is not
feigned, it is real.  Having said that, however, I also find that the pain does
not impose significant limitations upon the plaintiff’s functionality.  It has
not prevented her from engaging in recreational and sporting activities,
including travel, running, yoga, kayaking and the like, and will not do so in
the future.  Similarly, the pain condition has not prevented, and in the future
will not prevent, the plaintiff from pursuing further education and performing
full-time employment, whether in the field of sonography or any other
occupation which is within her physical capabilities and which she determines
to pursue.

[139]     To be
clear, I accept that the plaintiff has suffered and will continue to suffer
some degree of discomfort and pain from time to time when she engages in the
activities referred to above.  She may have struggled and will likely continue
to struggle to some degree with some of these activities in the future, however
she is neither unable nor seriously impeded in her ability to enjoy most of life’s
activities and to remain fully employed in the future, perhaps with some
adjustments or adaptations as may from time to time be required.

[140]     Another
key causation issue in this case relates to the failure or winding up of the
plaintiff’s business, Now & Zen Professional Organizing Solutions.  The
question is whether the plaintiff’s injuries and pain symptomology caused or
was a meaningful factor in the business “fizzling out” (to use the plaintiff’s terminology).

[141]     The onus
respecting cause of the business failure lies with the plaintiff.  The evidence
regarding the day-to-day operation of the business both before and after the
accident was surprisingly sparse and evidence respecting “financial forensics” of
the business was essentially nonexistent.

[142]     It will be
remembered the plaintiff suffered an injury to her left shoulder many years
before the accident, and that the persistent pain symptomology arising from
that injury forced the plaintiff to quit her career as a hairdresser, a career
which, based on the income tax returns and evidence, was one from which only a
relatively modest income was derived.  Given the “long-standing restrictions”
arising from shoulder problems, the plaintiff was already disabled from, and
her physician had already “recommend[ed] against an occupation that involves
repetitive physical work or use of her arms up above her shoulder level” (Dr. Ray
report, August 9, 2010 at p. 7).

[143]     The
plaintiff applied for and was offered employment as a bank teller with Envision
Financial before the accident but instead opted to pursue self-employment and
seized upon the concept of “professional organizing” as affording a possible
opportunity for success.

[144]     It must be
noted the plaintiff had no history or training in operating a business or any
other entrepreneurial enterprise.  It was apparent during her testimony that
she was unsophisticated in financial matters.  She had no idea at trial, for
example, how the GST regime operated.  In her application for the “Self‑Employment
Equity Program” completed in August 2007, the plaintiff stated “I need support
in all facets of the start-up i.e. promoting, planning, researching, budgeting,
forms, contracts, and financial issues, with GST # etc.”.  In reply to the question
on the application “What investment do you need to start/operate your business?”,
the plaintiff rather naïvely answered “$300”.

[145]     I do not
doubt the plaintiff’s enthusiasm for the project.  With the support of the Self-Employment
Equity Program, she put together a business plan that looked fairly impressive
on paper.  However, it contained projected income statements which were
conceded at trial to be “optimistic”.  The break-even point was anticipated to
be the fifth month of operation (i.e. before the accident) but the posited revenues
were never realized and the projected break-even status did not materialize.

[146]     The
business plan frankly acknowledged certain “barriers” confronting the plaintiff
including “lack of knowledge” of the market and her own “health issues”.  The “personal
budget” forming part of the business plan included a $300 monthly allowance for
“medical/physio/naturopath” treatments throughout 2008.

[147]     The stark
reality is that notwithstanding the plaintiff’s enthusiasm and efforts in
promotion and marketing, the business did not generate enough revenue to be
viable, let alone afford the plaintiff any means of livelihood.

[148]     The only
summarized financial reporting for the business is the 2008 tax return.  As
indicated earlier, it reported gross business income of $12,157 and a net loss
of $10,674.  Gross profit [gross income less cost of goods sold (inventory)] was
reported to be $4,591, all of which was eaten up by “hard” expenses such as
advertising, utilities, insurance/business taxes, and the like even before “soft”
expenses such as meals, entertainment, and motor vehicle expenses, some of
which may be said to include a personal component and hence a form of
remuneration to the plaintiff.

[149]     In May
2008, a couple weeks after the accident, the plaintiff applied for and received
a $15,000 loan for the business from the Canadian Youth Business Foundation.  The
loan application documents were not put into evidence nor was there provided
any explanation as to why this loan was necessary.  The loan agreement made it
a condition that the plaintiff work with a mentor for two years, to get
assistance from an experienced businessperson, and also to provide quarterly
reporting.  No evidence was adduced at trial respecting compliance with these
requirements or the content of same.

[150]    
The functional capacity report of Louise Craig dated January 21, 2014
included the plaintiff’s self-reporting of her employment history stating in
part:

She worked as a professional
organizer in her own business, Now & Zen, from approximately 2007 to 2008. 
She shifted this business to a moving business when the economy took a downturn.

No elaboration was provided as to how the downturn
specifically impacted the business, nor was any evidence provided by the plaintiff
in that regard.

[151]     I
appreciate the plaintiff testified that the pain condition arising from her
soft tissue injuries rendered her unable to carry out much of the physical work
associated with the Now & Zen business.  Having regard to the totality of
the evidence, however, I cannot conclude that the injuries caused the failure
of the business.  Rather, I find that the business never quite got off the
ground and was not likely to succeed, and if it all, would only have generated
modest revenues insufficient to provide the plaintiff with any viable means of
support.

[152]     In the
result, I find that the demise of the business was inevitable regardless of the
accident and that in any event the plaintiff would have been required to seek
out alternative employment, such as she did in mid-2009 when she became
employed as a teller with Envision Financial.

[153]     In light
of the above findings and the uncontroverted evidence at trial, I now proceed
to assess the damages to which the plaintiff is entitled as compensation for
the injuries and losses caused by the accident.

Non-Pecuniary General Damages

[154]     Non-pecuniary
general damages are intended to compensate the injured party for past and
future pain and suffering, loss of enjoyment of life, and loss of amenities. 
The compensation awarded should be fair to all parties, and fairness is often
measured against awards made in comparable cases.  Such cases, though helpful,
serve only as a rough guide as each case depends on its own unique facts.

[155]    
A useful, often cited, list of factors that may influence an award of
this type of damages can be found in Stapley v. Hejslet, 2006 BCCA 34 at
para. 46 and includes:

(a)            
age of the plaintiff;

(b)            
nature of the injury;

(c)            
severity and duration of pain;

(d)            
disability;

(e)            
emotional suffering; and

(f)              
loss or impairment of life;

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

(h)            
impairment of physical and mental abilities;

(i)              
loss of lifestyle; and

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

[156]     Notwithstanding
the minimal damage sustained by the vehicles involved in the collision, this now
32-year-old plaintiff suffered soft tissue injury to her neck and back which
has resulted in persistent headaches and pain since the date of the accident,
some difficulty with sleep, and occasions of depression and low mood.  The
plaintiff has sought out and obtained medical treatment from a wide variety of
medical professionals over the years, although with the exception of a visit to
her GP, Dr. Ray, on May 15, 2012 for the purposes of an updated
medical–legal assessment, treatment since January 2011 to date has been limited
to repeated visits to a chiropractor, Dr. Tyler (27 visits in 2011; 11
visits in 2012; 4 visits in 2013-2014) and a massage therapist, Ms. Cairo-Martinez,
since August 2013 (8 visits in 2013; three visits in 2014).

[157]     It is
noted that the plaintiff went to the physiatrist, Dr. Hershler, on
November 10, 2011 for another medical–legal opinion.  He expressed the opinion at
that time that the plaintiff “has a 50% chance of recovery within two years and
a 50% chance that she will remain with permanent pain symptoms”.  He recommended
the “alternative strategy” of Pulsed Signal Therapy, which was conveniently
offered by his own private clinic at a cost of $1,500, in respect of which he
suggested the plaintiff would have a 70% chance of a response that would allow
her to function without pain.  The plaintiff did in fact take these treatments
in early 2014, seemingly without success to date.

[158]     As a
physiatrist, Dr. Hershler has some expertise in the area of pain
management, although he does not have the subspecialty certification in “pain
medicine” which has only recently become a recognized specialty by the Royal
College of Physicians and Surgeons of Canada.  The plaintiff has not attended,
nor has she been referred to, any multi-disciplinary pain management program
which might shed some light on both the physiological and psychosocial factors
contributing to her chronic pain symptomology and which might possibly assist
the plaintiff with some more effective therapeutic intervention.  Of course, no
evidence was before the court regarding such matters and therefore they cannot
be factored into the assessment of damages in this case.

[159]     Instead,
the plaintiff has been seeking treatment from a chiropractor and a massage
therapist who have no formal qualification or expertise in pain medicine but
whose treatments, according to the plaintiff, do help to relieve the pain
symptomology on a temporary basis.

[160]     I have
already found that while the plaintiff does suffer some impairment of life and
some disability arising from her pain symptoms, she is nonetheless able to
participate in a lifestyle that includes travel, sports and other recreational
activities, and full-time employment.

[161]    
The plaintiff cites various cases involving female plaintiffs suffering
soft tissue injuries with persistent, chronic pain symptomology in support of
its submissions that the award of non- pecuniary general damages in this case
should be in the range of $75,000-$90,000.  These include:

·                
Dorosh v. John, 2013 BCSC 1442 – 35-year-old female with
pre-existing health problems but diffuse soft tissue injuries to the neck, back
and right shoulder resulting in pain and physical limitations in respect of
which the prognosis was guarded – $90,000;

·                
Clark v. Kouba, 2012 BCSC 1607 – 49-year-old female
plaintiff with chronic pain arising from soft tissue injury to the neck and
upper back as well as myofascial tension headaches, whose prognosis was
guarded, although she was able to return to some of her sporting pastimes —
$85,000;

·                
Johal v. Meyede, 2013 BCSC 2381 – 30-year-old female
plaintiff with myofascial pain syndrome, chronic headaches, and possibly
thoracic outlet impingement – $85,000;

·                
Bergman v. Standen, 2010 BCSC 1692 – 27-year-old female
plaintiff with a Grade II whiplash-type injury to her neck, which resolved
after six months, but also persistent mechanical injury to the lower back
resulting in almost continuous pain, sleeplessness, and fatigue – $75,000.

[162]    
The defendant cites cases suggesting a range of non-pecuniary general damages
from $28,000-$45,000.  They include:

·                
Gulbrandsen v. Mohr, 2012 BCSC 1869 – female plaintiff
with post-traumatic vestibular dysfunction (dizziness), and soft tissue
injuries to the upper back which were not found to be permanent in nature –
$25,000;

·                
Chan v. Lee, 2008 BCSC 594 – female plaintiff with mild to
moderate soft tissue injury to her neck, upper back and shoulder, later
development of lower back pain which continued on an intermittent basis, and
development of anxiety, but with a good prognosis for improvement – $35,000;

·                
Peck v. Peck, 2012 BCSC 1617 – female plaintiff with soft
tissue injuries to her neck and back which were not disabling in any material
sense but were persistent and nagging and inhibited more strenuous activities,
along with a mild form of post-traumatic stress disorder (plaintiff’s
perception and description of pain and discomfort was somewhat at odds with her
demonstrated abilities) – $45,000.

[163]     This too is
a case where the reports of the plaintiff’s pain symptomology appear to be
somewhat at odds with the extent of her functionality as demonstrated by her
employment pursuits and recreational activities.  Still, the plaintiff’s pain
is real and has proved to be persistent.  While there is no significant
physical disability arising from the injuries, some impairment of life and
lifestyle has resulted and will continue.  Having regard to all of the factors
listed in the Stapley case above, an appropriate award of non-pecuniary general
damages in this case would be $60,000.

Loss of Past and Future Income Earning Capacity

[164]     Personal
injury lawsuits almost invariably include claims for damages for loss of past
and future earnings which the plaintiff would have earned, had the defendant’s negligence
and the resulting injury not occurred.  Since Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229, it has been acknowledged that,
technically speaking, it is not loss of earnings for which compensation is
being made but rather it is for loss or impairment of a capital asset, namely,
the plaintiff’s capacity to earn income.  The courts usually hold the
value of a particular plaintiff’s capacity to earn is equivalent to the value
of the earnings that she or he would have received, whether in the past or in
the future, had the tort not been committed.

[165]     Valuation
of the loss may be measured in different ways.  Sometimes, particularly where
the plaintiff was engaged in steady, long-term, likely permanent employment,
the loss can be measured by reference to the actual earnings the plaintiff
would have received.  Those are the easy cases.

[166]     More
difficult are the cases where there is no meaningful history of employment
income, or where the plaintiff is a self-employed entrepreneur or whose earning
capacity involves unconventional income-earning enterprises that are difficult
to measure.

[167]     An
assessment of loss of both past and future earning capacity necessarily
involves a consideration of the hypothetical.  In the Andrews case, the
Supreme Court of Canada itself framed the notion, repeated many times since, of
‘gazing deeply into the crystal ball’.  This permits, and indeed requires,
future and hypothetical possibilities to be taken into account so long as they
are a real and substantial possibility and not mere speculation.

[168]     In the
present case, at the time of the accident, the plaintiff was self-employed in a
relatively new small business enterprise.  She is entitled to be put into the
position she would have been in but for the accident, insofar as money can
accomplish that.  What would have happened to the plaintiff’s business and what
earnings would the plaintiff have derived from it had the accident not
occurred?

[169]     I have
already made a finding that the accident and the resulting injuries to the
plaintiff did not cause the demise of the business.  I have made a finding that
the business would not likely have been a commercial success and that the
plaintiff would sooner or later have found herself doing exactly what she did
in this case, i.e. obtaining a job from an employer such as Envision Financial
and in due course deciding to “upgrade” her education to pursue more
remunerative employment, such as her current occupation as a sonographer.

[170]     It follows
from these findings that the plaintiff has not met the burden of proving a loss
in terms of past loss of earning capacity, whether measured by reference to
actual earnings (profits) she would have received, increased value of the
business enterprise that would have been generated, or in any other fashion.  The
claim for damages for past loss of earning capacity must therefore be
dismissed.

[171]     But what
of the future?  Have the injuries caused by the accident impaired the plaintiff’s
capacity to earn income in the future, such that some compensation
should be awarded for the resulting financial harm that would not otherwise
accrue?

[172]    
Plaintiff’s counsel argues:

The plaintiff now suffers from
chronic neck pain, low back pain and headaches as a result of the accident.  The
prognosis for further recovery is poor.  The chronic pain has caused a
permanent partial disability.  As such, Ms. Brunel’s capacity to earn
income as a “capital asset” has been diminished … The proper approach to
valuing the loss is the capital asset approach.  The diminished capacity should
be valued at two years’ salary ($130,000) by reference to her salary as a
sonographer.

[173]    
 In Hoy v. Williams, 2014 BCSC 234, I reviewed the principles
applicable to the assessment of damages for loss of future earning capacity as
follows:

[153]    A claim for loss of future earning capacity raises
two key questions: 1) has the plaintiff’s earning capacity been impaired
by his or her injuries; and, if so 2) what compensation should be awarded for
the resulting financial harm that will accrue over time?  The assessment of
loss must be based on the evidence, and not an application of a purely
mathematical calculation.  The appropriate means of assessment will vary from
case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.); Pett v. Pett, 2009 BCCA 232.

[154]    The assessment of damages is a matter of judgment,
not calculation: Rosvold v. Dunlop, 2001 BCCA 1 at para. 18.

[155]    Insofar as possible, the plaintiff should be put in
the position he or she would have been in but for the injuries caused by the
defendant’s negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA
106 at para. 185.  The essential task of the Court is to compare the likely
future of the plaintiff’s working life if the accident had not happened with
the plaintiff’s likely future working life after the accident: Gregory v.
Insurance Corp. of British Columbia, 2011BCCA 144 at para. 32.

[156]    There are two possible approaches to assessment of
loss of future earning capacity: the “earnings approach” from Pallos,
and the “capital asset approach” in Brown.  Both approaches are correct.
The “earnings approach” will generally be more useful when the loss is easily
measurable: Perren v. Lalari, 2010 BCCA 140 at para. 32.  Where the loss
“is not measurable in a pecuniary way”, the “capital asset” approach is more
appropriate: Perren at para. 12.

[157]    The earnings approach involves a form of
math-oriented methodology such as i) postulating a minimum annual income loss
for the plaintiff’s remaining years of work, multiplying the annual projected
loss by the number of remaining years and calculating a present value or ii)
awarding the plaintiff’s entire annual income for a year or two: Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Gilbert
v. Bottle, 2011 BCSC 1389 at para. 233.

[158]    The capital asset approach involves considering
factors such as i) whether the plaintiff has been rendered less capable overall
of earning income from all types of employment; ii) whether the plaintiff is
less marketable or attractive as a potential employee; iii) whether the
plaintiff has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and iv) whether the plaintiff is less valuable
to herself as a person capable of earning income in a competitive labour
market: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Gilbert
v. Bottle, 2011 BCSC 1389 at para. 233; Morgan v. Galbraith, 2013
BCCA 305 at paras. 53 & 56.

[159]    Though the capital asset approach is not a
“mathematical calculation”, the trial judge must still explain the factual
basis of the award: Morgan v. Galbraith, 2013 BCCA 305 at para. 56.

[160]    The principles that apply in assessing loss of
future earning capacity were summarized by Low J.A. in Reilly v. Lynn,
2003 BCCA 49 at para. 101:

The relevant principles may be briefly summarized. The
standard of proof in relation to future events is simple probability, not the
balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27.  A plaintiff is entitled to compensation for real and
substantial possibilities of loss, which are to be quantified by estimating the
chance of the loss occurring: Athey v. Leonati, supra, at para.
27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.).  The
valuation of the loss of earning capacity may involve a comparison of what the
plaintiff would probably have earned but for the accident with what he will
probably earn in his injured condition: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 93 (S.C.).  However, that is not the end of the inquiry;
the overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J.
No. 644 (C.A.) (Q.L.).  Moreover, the task of the Court is to assess the
losses, not to calculate them mathematically: Mulholland (Guardian ad litem
of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).  Finally, since
the course of future events is unknown, allowance must be made for the
contingency that the assumptions upon which the award is based may prove to be
wrong: Milina v. Bartsch, supra, at 79.

[161]    The plaintiff may be
able to prove a substantial possibility of future loss of income despite having
returned to his or her usual employment and even where he has received a raise
or obtained a promotion: Perren v. Lalari, supra; Combs v.
Bergen, 2013 BCSC 321.  There is no principle of law requiring the medical
evidence to establish an impairment of earning capacity; rather, such
impairment is established on the totality of the evidence: Miscisco v. Small,
[2001] B.C.J. No. 2042.

[174]     The
plaintiff has achieved significant success for which she must be commended.  She
upgraded her high school education, selected and pursued a challenging career,
successfully completed a two-year course of studies and practicums at BCIT,
obtained her professional qualifications as a sonographer, and thereafter
obtained full-time employment for which she is receiving, and will continue to
receive a good salary.  By any measure, this is a success story.

[175]     Even so,
as the cases cited above demonstrate, the plaintiff may still be able to
demonstrate on the evidence a loss of future earning capacity for which some
compensation may be awarded.  Has she done so?

[176]     In her January
21, 2014 functional capacity evaluation report, Ms. Craig opines that the
plaintiff “demonstrates limitations to her neck and low back that reduce her
ability to work at more physically demanding jobs” and suggests that “the scope
of occupations once viable from a physical perspective for Ms. Brunelle, are
reduced leaving her with reduction in her competitive employability”.

[177]     It will be
remembered that by the time of the accident, the plaintiff already had
significant limitations arising from her left shoulder injury which had already
required her to change occupations.  If the plaintiff’s injuries and pain
symptomology arising from the accident “reduce her ability to work at more
physically demanding jobs”, it must be recognized that a reduction in any such
ability already existed at the time of the accident.  As Dr. Hershler noted,
any difficulty the plaintiff might have doing work involving prolonged
elevation of the arms over the plaintiff’s head, “is a combination of the
pre-existing problem to her shoulder and the ongoing soft tissue injury to the
neck”.

[178]    
In his final report, Dr. Ray stated:

I do not see Sarah having any
specific partial or total disabilities related to the injuries of her motor
vehicle accident.  I do see her as having symptoms that are continuous and
persisting. … It is important that Sara remain physically fit and continue to
be aware and careful with her biomechanics.  If she is able to do this, I am
confident that she will remain fully functional. … I suspect that she may
continue to suffer from ongoing pain and discomfort.  I do not feel that this
pain and discomfort will be limiting to her in terms of her occupation as an
ultrasound technician and that she should be able to return to her activities
of daily living and recreation.

[179]     In my
opinion, the plaintiff has met the onus of proving a real and substantial
possibility that future events will combine with the plaintiff’s ongoing pain
symptomology sufficient to realize a future loss of earning capacity.  The
medical opinion is that the plaintiff’s symptomology may possibly be permanent.
While I have already made a finding that the plaintiff has a high level of
functionality notwithstanding the pain she experiences, at least one physician (Dr. Hershler)
has expressed the opinion that the plaintiff’s tolerance for pain will decrease
as she ages.  As well, ordinary life events may aggravate the plaintiff’s
symptomology and result in absences from work or an inability to take advantage
of opportunities that might otherwise have been available.

[180]     The plaintiff
is relatively young and most of her working life is ahead of her.  If she is
forced to change employment because of circumstances beyond her control, any
increased pain symptomology as she ages will render more difficult securing
alternative employment in a competitive labor market and result in her being
less attractive as an employee to potential employers.

[181]     For the
time being, however, any reduction in employability is likely well in the
future.  At present she has full-time employment as an ultrasound technician
and there is no obvious reason why this will not continue.  Attaching a more
modest present value to future loss of earnings will appropriately reflect that
the realization of any loss of capacity, if it occurs at all, will likely do so
many years from now.

[182]     In all the
circumstances, an appropriate award for loss of future earning capacity in this
case would be $40,000.

Special Damages

[183]     The
parties provided a schedule of special damages as of April 29, 2014.  The
defendant does not dispute that the amounts in question were incurred and paid
by the plaintiff.  However, on the basis that the injuries suffered in the
accident “likely resolved within three months or so”, the defendant suggests
that the award of special damages should be limited to various treatment
expenses incurred during that time, being the sum of approximately $2,500 to
the end of 2008 (including the deductible applicable to the vehicle repair).

[184]     Based on
my findings that the demise of the plaintiff’s business and any subsequent
education/training for her new occupation as a sonographer was not caused
by the accident, the claims related to the latter (items P–T on the schedule of
special damages) are dismissed.

[185]     The
plaintiff makes a claim for various memberships and activities that would
likely be incurred by a healthy, active young woman in any event.  This
includes the costs relating to Fitness World, Canada Games Pool, and yoga.  The
claims for items E, N and O on the schedule of special damages are therefore
dismissed.

[186]     All of the
other items set out on the schedule of special damages, including the itemized claim
for mileage, were reasonably incurred for treatment of the injuries sustained
in the accident and damages are accordingly awarded in that amount.

Cost of Future Care

[187]    
The principles applicable to the assessment of claims and awards for the
cost of future care might be summarized as follows:

·                
the purpose of any award is to
provide physical arrangement for assistance, equipment and facilities directly
related to the injuries;

·                
the focus is on the injuries of
the innocent party… fairness to the other party is achieved by ensuring that
the items claimed are legitimate and justifiable;

·                
the test for determining the
appropriate award is an objective one based on medical evidence;

·                
there must be: (1) a medical
justification for the items claimed; and (2) the claim must be reasonable;

·                
the concept of “medical
justification” is not the same or as narrow as “medically necessary”;

·                
admissible evidence from medical
professionals (doctors, nurses, occupational therapists etc.) can be taken into
account to determine future care needs;

·                
however it is not necessary for
specific items of future care to be expressly approved by medical experts…… it
is sufficient that the whole of the evidence supports the award for specific
items;

·                
still, particularly in non-catastrophic
cases, a little common sense should inform the analysis however much particular
items might be recommended by experts in the field; and

·                
no award is appropriate for
expenses that the plaintiff would have incurred in any event.

See: Andrews v. Grand & Toy Alberta Ltd.,
supra; Krangle v. Brisco, 2002 SCC 9; Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.), affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.); Aberdeen
v. Langley Township 2008 BCCA 428; Gregory v. ICBC, 2011 BCCA 144; Jacobsen
v. Nike Canada Ltd (1996), 19 B.C.L.R.), (3d) 63 (S.C.); Penner v. ICBC,
2011 BCCA 135; Shapiro v. Dailey, 2012 BCCA 128.

[188]     The plaintiff
testified that chiropractic and massage treatments provided pain relief, albeit
temporarily, and increased her functioning.

[189]     Ms. Craig
along with each of Drs. Ray (GP), Hershler (Physiatrist) and Tyler (chiropractor)
recommend periodic chiropractic treatments and massage therapy as a means of
reducing headaches, alleviating pain, and increasing functionality.  Dr. Ray
states such treatment should not be considered a “mainstay” of the plaintiff’s
recovery program, preferring that she continue with her regimen of working out
and that she remain physically fit.  Dr. Hershler also encourages the plaintiff
to remain as fit and as active as possible and he recommends the plaintiff try to
reduce the frequency of chiropractic and massage treatments to once a month.

[190]     There have
been cases where the cost of massage, chiropractic and physiotherapy treatments
have been awarded on a lifetime basis or for many years into the future: see Cimino
v. Kwit, 2009 BCSC 912; Ortega v. Pena, 2012 BCSC 1884; and Johal
v. Meyede, supra.  In Clark v. Kouba, 2014 BCCA 50, the Court
of Appeal refused to disturb the award of the cost of a yoga membership for
life where the necessary “evidentiary link” between the physicians assessment
of pain and the recommended treatment was the respondent’s own evidence that
yoga assisted her to manage the pain caused by the accident.

[191]     I am
mindful that a little common sense should inform the analysis of any cost of
future care claim.  I have commented earlier on the absence of what would
likely have been useful evidence in this case respecting the opinions of a pain
medicine specialist and the utility of a multidisciplinary assessment and
treatment plan from one of the chronic pain treatment programs available in
this province.  Evaluating the many factors that might influence the persistence
of a subjective pain experience arising from a “whiplash” injury in a low
impact collision of the sort involved in this case likely involves a
time-consuming multidisciplinary approach in respect of which many clinicians
lack training and expertise.  Such evidence might be helpful in addressing
future care requirements of any particular plaintiff experiencing chronic pain,
all the more so when a claim is being presented on behalf of a 32-year-old,
generally healthy and active young woman for the present value of the cost of
massage and chiropractic therapy twice a month for the rest of her life.

[192]     But no
such evidence has been presented in this case and I am obliged to assess the
claim and make an award in light of the lay and expert evidence that has in
fact been adduced.  I have already made a finding that the plaintiff continues
to experience pain as a result of the motor vehicle accident and the evidence
establishes that chiropractic and massage treatment modalities do currently
provide temporary pain relief and an increase in functionality.  The “evidentiary
link” between the pain condition and the recommended future treatment has
therefore been established and some award for the future cost of that treatment
is therefore appropriate.

[193]     The
plaintiff claims the cost of each of chiropractic and massage treatments twice
a month at a current annual cost of $1,080 and $2,160 respectively, as well as
the current annual cost of $300 for kinesiology assessment/assistance three
times a year.  Having regard to the most recently revised discount rates and
the plaintiff’s life expectancy, the present value of the cost of such future
treatment over the balance of the plaintiff’s lifetime is approximately
$113,000 before taking into account contingencies.

[194]     The
plaintiff had a pre-existing soft tissue injury to her left shoulder in respect
of which she experienced pain for several years and sort out the significant
number of treatments.  She claims that the pain had diminished so such a level
that she no longer required physiotherapy or other treatment for a period of
six months before the accident, although I note she continued to receive
treatment from a naturopathic doctor during that period in respect of which no
explanation or evidence was tendered at trial.  It is possible the shoulder
problem would have triggered future massage and chiropractic treatments in any
event.

[195]     As well, the
plaintiff’s claim is premised upon the current pain symptomology persisting
throughout the plaintiff’s lifetime.  That may in fact turn out to be the case.
Equally, however, like the shoulder injury, the pain symptomology may diminish
or even disappear altogether, such that further treatment is unnecessary.

[196]     As noted,
the physicians recommend what is essentially a 50% reduction in the frequency
of the chiropractic and massage treatments in the future.  As well, perhaps the
plaintiff might actually be referred to and benefit from a specialist pain
management program of the sort referred to above, rendering such treatments
unnecessary, although I recognize that such programs may themselves involve
costs not covered by provincial health care regimes.

[197]     Having
regard to all of these factors and contingencies, an appropriate award for the
cost of future care in this case, one that is fair to both parties, would be
the sum of $30,000.

Summary

[198]    
In summary, damages are awarded to the plaintiff as follows:

[199]     Special
damages are awarded as directed above and having regard to the third updated
schedule of special damages presented at trial, together with court ordered
interest to be calculated.

[200]     Costs will
be assessed under Scale B, and will follow the event unless there are any
particular circumstances which should be brought to my attention in that
regard, in which event the parties may make further submissions within 30 days.

“N. Kent J.”
The Honourable Mr. Justice N. Kent