IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140715

Docket: M63988

Registry:
Nanaimo

Between:

Maureen Adkin

Plaintiff

And

Charles Grant

Defendant

Before:
The Honourable Mr. Justice Halfyard

Reasons for Judgment

Introduction

[1]            
The plaintiff Maureen Adkin claims damages for personal injuries which
she sustained as the result of the motor vehicle accident which occurred on
September 3, 2010, in Nanaimo. At about 3 o’clock that afternoon, the plaintiff
was driving her 1987 Toyota Tercel east on Mostar Road. She was alone in her
vehicle. She was travelling on an uphill grade, behind one or more vehicles
that were approaching an intersection controlled by traffic lights. The traffic
light for eastbound traffic turned yellow, and the plaintiff slowed down, as
did the cars ahead of her. The defendant Charles Grant was following behind the
plaintiff’s vehicle. He was driving a 2001 Ford pickup truck. The front of the
defendant’s truck collided with the back end of the plaintiff’s car. The plaintiff
applied her brakes so as not to run into the vehicle ahead of her, and managed
to stop in time.

[2]            
There was significant damage to the rear end of the plaintiff’s vehicle,
and some damage to the front end of the defendant’s pickup truck. The evidence
does not reveal the speeds of either of the two vehicles at the time of impact,
and no evidence other than that of the plaintiff was presented concerning the
force of the impact. However, the defence concedes that the force of the impact
was sufficient to cause, and did cause, a whiplash-type injury to the
plaintiff’s neck and upper back.

[3]            
The plaintiff got out of her car after the collision, went to the back
of her car and saw the damage, and saw the defendant get out of the pickup
truck. She felt a sharp pain in her neck and got back into her car and sat down
in the driver’s seat. The police and an ambulance attended, and the plaintiff
was taken to hospital. She was examined and x-rayed, and was released from
hospital an hour or so later. Her daughter came to take her home from the
hospital.

[4]            
The defendant has admitted liability for the accident. The trial
requires an assessment of the damages that should be awarded to the plaintiff
for her injuries. She claims damages for non-pecuniary loss and for pecuniary loss,
under all of the usual categories of damages.

[5]            
The broad issues in the trial are the nature and extent of the
plaintiff’s injury, and whether or not the plaintiff had recovered from the
injury, and the effects of that injury, before the time of the trial (May 5,
2014).

Overview of the Evidence

[6]            
The plaintiff testified and gave evidence relevant to all the categories
of damages she is claiming. The other witnesses called by the plaintiff were Aleisha
Stewart (a fellow university student of the plaintiff, currently a high school
counsellor but a potential business partner of the plaintiff); Mia Goodall
(program coordinator for the Nanaimo Family Life Association, in counselling
and wellness programs); Deanna Smith, (the plaintiff’s daughter, who lives with
her); Kim Andersen (the plaintiff’s daughter who lives in the basement suite of
the plaintiff’s home with her own daughter, Tatum); and Deborah Hollins
(executive director of the Nanaimo Family Life Association).

[7]            
The plaintiff also filed numerous documentary exhibits which included
the clinical records of her family physician Dr. Debra Harkness, two
chiropractors, a physiotherapist, a massage therapist and the following expert
medical reports:

a)    the
report of Dr. Harkness dated November 4, 2010;

b)    the
report of Dr. Barry Whyte D.C., dated July 17, 2012;

c)     the
report of Dr. Deborah Allison, registered psychologist, dated June 17, 2011;

d)    the report of
Dr. Anthony Salvian, vascular surgeon, dated November 5, 2013.

[8]            
The plaintiff also filed two expert reports of Darren Benning, an
economist, dated February 11, 2014 and February 13, 2014.

[9]            
The expert medical opinion evidence presented by the plaintiff was given
by way of their written reports. None of the plaintiff’s experts was required to
attend for cross-examination at the trial.

[10]        
The defendant did not call any witnesses, but did file the following
expert medical reports:

a)    the report of
Dr. Douglas Connell, radiologist, dated June 10, 2013; and

b)    the report of
Dr. Frank Kemble, neurologist, dated October 28, 2013.

[11]        
The defendant also filed written material relating to the university
course taught by Dr. Susan Tasker of the University of Victoria, presented at Parksville,
B.C. between September 18 and November 28, 2010.

[12]        
I will review the testimony of the witnesses and the expert medical
evidence given by way of written reports. My review will, for the most part, be
a summary outline of what I consider to be the more important parts of the
evidence.

The Evidence of the Plaintiff Maureen Adkin

[13]        
I will first summarize the facts
asserted in the testimony of the plaintiff in direct examination. My summary
will not always follow the sequence in which the evidence was given, because
the questioning was not always chronological in the timing of events, and
because parts of the evidence on the various topics covered were sometimes
separated from each other.

[14]        
The plaintiff is now 69 years of age. She was 66 at the time of the
accident on September 3, 2010. She grew up in Victoria. At about age 15, she
quit school in grade nine and went to work as a waitress. She married her first
husband when she was 19 years of age. She and her husband, a Lieutenant in the
Army, had three children. They separated after about five years of marriage.

[15]        
The plaintiff married her second husband in 1967. He worked for the City
of North Vancouver. They had two children together. That marriage ended in
about 1973, after which time all five children remained with her. She had not
worked during her second marriage, but did work after that, providing daycare
and foster care for children in North Vancouver.

[16]        
The plaintiff married for a third time, her third husband being a
doctor. He brought four children into the family, and they all lived on a farm
in Langley. That marriage lasted about eight years.

[17]        
The plaintiff went to live with another man in California in the early
1980s. She lived in the United States until 1992, and worked at a number of
different jobs and professions during that time.

[18]        
In 1993, the plaintiff moved from California to Nanaimo. She opened her
own coffee business in 1993 in the old Nanaimo Fire Hall. The business included
roasting coffee beans, selling coffee, groceries and tea and a coffee shop. She
had a number of employees working for her, including her mother, who worked
with the plaintiff until she was 87 years of age. The plaintiff was able to
handle fairly heavy sacks of coffee as part of the regular work she did in her
business.

[19]        
In 1998, the plaintiff closed her business down, due to an economic
downturn in the downtown area of Nanaimo. She started another coffee house
business in Nanaimo, but she ended that business in 1999.

[20]        
In 2003, when she was 58 years of age, the plaintiff decided that she
would go back to school and would pursue a Bachelor of Arts degree at Malaspina
College in Nanaimo. Her plan was to obtain a Master’s degree in counselling and
psychology, after completing her BA degree. In embarking on this new career, the
plaintiff was “pursuing a dream”.

[21]        
The plaintiff’s mother had suffered a stroke at age 89, and the
plaintiff was taking care of her mother in the plaintiff’s home. The plaintiff
planted and maintained a large vegetable garden on her property in Nanaimo. Her
children had all grown up and moved away, but at some point the plaintiff was
caring for her granddaughter Tatum, who was the daughter of the plaintiff’s
daughter Kim Andersen. At some point (or perhaps at different times) the
plaintiff’s two daughters, Deanna Smith and Kim Andersen, came to live with
her.

[22]        
Beginning in 2006, the plaintiff took training courses and contributed
work as a volunteer with the Nanaimo Family Life Association. Her volunteer
work consisted mainly of counselling services.

[23]        
The plaintiff obtained her Bachelor of Arts degree from Vancouver Island
University (formerly Malaspina College) in June 2008.

[24]        
While waiting to be admitted to the master of education degree program,
the plaintiff took two years of full time education in native studies. She
commenced her master’s program with the University of Victoria in May 2010. In
the summer of 2010, the program required her to attend at the University of
Victoria for six weeks of classes. She lived in Victoria during that time, and
hired a caregiver for her mother, for five days a week (she would come home on
weekends). At least one of her daughters was living at her home in Nanaimo at
that time.

[25]        
The plaintiff completed her classes at the University of Victoria in
August 2010. The program was scheduled to continue on September 18, 2010, with
the classes to be held at Parksville in the fall and winter on certain
scheduled weekends (the remainder of the classwork had to be done at home or
online).

[26]        
The motor vehicle accident occurred on September 3, 2010. She
experienced pain in her neck and head, almost immediately after the collision.
She was taken to hospital in an ambulance, examined by a doctor, x-rayed and
released an hour or so later. Her daughter brought her home from the hospital.
She was wearing a neck brace and was feeling a lot of pain.

[27]        
During the first week after the accident, the plaintiff experienced
constant and severe pain in her neck and upper back. The pain radiated down
into her arms. She had headaches and felt light-headed. It was very difficult
for her to sleep.

[28]        
The plaintiff’s 1987 Toyota Tercel was written off as a result of the
damage in the accident. The plaintiff was paid $2,100 for its loss.

[29]        
Although she was still feeling severe pain, the plaintiff attended the
first weekend of classes in Parksville, on September 18 and 19, 2010. She was
barely able to cope with the requirements of the course. Her powers of memory
had diminished considerably. She obtained two concessions from her professor
Dr. Susan Tasker, which postponed her requirement to pass in the first paper
(to the end of the program) and enabled her to write the final exam by herself,
separately from the other students.

[30]        
Sitting in class was painful for her, and she had to take breaks from
time to time. Typing was painful for her and the pain in her right arm was bad.
Her memory problems made things more difficult for her. She became an emotional
wreck and was crying a lot. Her inability to control her emotions was something
she had never experienced before.

[31]        
Dr. Harkness (or her locum) prescribed physiotherapy, chiropractic and
massage treatments for her. She obtained some relief from these treatments, but
the pain remained fairly constant and severe. For a time, she was unable to do any
housework, yard work or enjoy any social life with her friends.

[32]        
The plaintiff barely passed the university semester ending in December
2010, getting only a B average. She did not miss any of the class sessions,
which included three weekends and the final examination.

[33]        
The plaintiff continued with her two-year master’s degree program,
attended all of the classes, completed her practicum by April 30, 2012 and was
awarded a master of education degree in May 2012. She had a B+ grade.

[34]        
The plaintiff’s lawyer referred her to Dr. Deborah Allison, a registered
psychologist, because of her feelings of depression and emotional stress. She
only saw Dr. Allison on one occasion (in May 2011).

[35]        
The plaintiff has been unable to do her gardening work to the extent
that she did in the past, and it takes her much longer to do that work. She
cannot go on hikes as she used to do, her physical activities have been
curtailed significantly and she has been unable to pursue any social life. She
has had to reduce the amount of housekeeping that she does.

[36]        
The plaintiff’s mother died on in 2011 (the date was September 29, 2011).
Her mother had developed dementia several years before she died, and her physical
and mental condition made it extremely difficult for the plaintiff to care for
her.

[37]        
Since completing her master’s program, the plaintiff has been searching
for employment in the counselling field. But she feels unable to work full
time, and so she did not apply for a position that was posted for the Nanaimo
Family Life Association. That particular job involved caring for elderly
people, and it was too physically demanding for the plaintiff.

[38]        
The plaintiff now realizes that it is unlikely that she could obtain
work with any government agency, due to her age. She has been planning, for six
months or so, to go into private practice in the counselling field with two
other persons. She hopes that the business can be started in January 2015. She
believes she could only see two clients in a day, which would involve two hours
of interview time and two hours of paper work. She considers this to be working
about half time. She considers that her age is a benefit rather than an
impediment to her career, due to her life experiences and wisdom.

[39]        
She still has problems with her memory (which varies with the amount of
pain she is feeling). Her pain has gotten worse, not better, since the motor
vehicle accident. She is in pain all of the time, she cannot sit for any length
of time and “I have literally lost the use of my right arm.” Handwriting is
very difficult for her because her fingers cramp up after about 15 minutes. She
can only do part of her housework and part of her gardening work. Her
depression has gotten worse. She cannot do very much cooking (her daughter
Deanna now does most of the cooking). Her daughter Kim does the work to
maintain the front yard (lawns and flower gardens). She and her two daughters
share the housework.

[40]        
The plaintiff feels sad that she has lost much of her independence and
stated “I feel trapped in this body that won’t do what I want it to do.”

[41]        
The plaintiff had stated that her health was good before the motor
vehicle accident, although she acknowledged certain health problems before the
accident. In 1984 she had carpal tunnel surgery to her right hand but has had
no similar trouble with that hand since that time. In 1999, she suffered a neck
injury when she was assaulted by a male friend. That injury required her to
seek treatment over the years, but had diminished to the point where she only
had to see the chiropractor once or twice a year. She was diagnosed with fibromyalgia
in 2001, and medical investigations were done and treatment was prescribed. But
she had no troubles with fibromyalgia for five years before the accident.

[42]        
The plaintiff has continued to do volunteer work for the Nanaimo Family
Life Association and has conducted workshops related to counselling.

Cross-examination

[43]        
I will next summarize what I consider to be the more important parts of
the evidence given by the plaintiff on cross-examination. I will try to condense
this testimony down to the essential facts asserted.

[44]        
Dr. Harkness has been her family doctor since 1994, and she has had a
good relationship with Dr. Harkness.

[45]        
She was choked by her ex-husband in 1999 or 2000 and her neck was
injured. She was treated by the chiropractor, Dr. Butcher, for problems with
her neck, up to 2009. She had no other neck or back problems since 1999.

[46]        
In March 2008, Dr. Harkness prescribed massage therapy for tension or
pain in her back and shoulders, due to stress.

[47]        
Dr. Harkness referred her to Dr. Cheung in October 2009, after she had
experienced light-headedness, vertigo and dizziness in September 2009. The
plaintiff agreed that she had told Dr. Cheung that she was under a tremendous
amount of stress and was sleep-deprived due to family burdens and attending
school full time. She agreed that she told Dr. Cheung she had gone to the
emergency ward of the hospital after having a panic attack in August of 2009
and had told him that she suffered from post-traumatic stress as a result of
difficulties with her ex-husband. She denied telling Dr. Cheung that she was
suffering from fibromyalgia and thought that the doctor may have mentioned it
because he had seen her earlier problems with fibromyalgia described in the
medical records.

[48]        
The plaintiff began getting student loans in September 2003 and by the
time she completed her master’s degree in 2012, she owed about $132,000 in
student loans. But she said that this large outstanding debt did not make her
feel additional stress.

[49]        
She did not miss any classes from the time of the motor vehicle accident
until she obtained her master’s degree in May 2012 and she managed to achieve
reasonably good grades in her academic work. When interviewed by Dr. Allison at
the end of May 2011, the plaintiff told her that she had been an A – student
before the accident, and that her grades had returned to their normal level.

[50]        
The only visible injury received by the plaintiff in the accident of
September 3, 2010 was a seat-belt mark at or near her left collar bone.

[51]        
After the accident, she first visited Dr. Goodall (because Dr. Harkness
was not available) and first saw Dr. Harkness on September 8, 2010. She told
Dr. Harkness about the pain in her right arm and hand, and thought that she had
done so on the first visit. Counsel pointed out to her that Dr. Harkness had
made no note of such a complaint of pain radiating into her right arm and hand,
until June 5, 2012. The plaintiff acknowledged this, and agreed that there had
been visits to Dr. Harkness on September 8, 2010, September 15, 2010, September
28, 2010, October 1, 2010, October 4, 2010, October 18, 2010, and November 4,
2010. The plaintiff’s eventual explanation for the apparent absence of such a
complaint from her doctor’s records until June of 2012 was:

a)    she
thought she had told Dr. Harkness about it before then, but acknowledged that
she might not have done so;

b)    she
insisted that she did tell her physiotherapist about pain going down into her
right arm and about tingling in her fingers;

c)     regardless
of whether she told anyone about it or not before June 2012, she did experience
those symptoms and she began to feel those symptoms “from the beginning” (which
I took to mean, within a few days or weeks after the accident).

[52]        
The plaintiff agreed that she had told Dr. Harkness on October 28, 2010 that
her neck and back were much better, and that her lower back pain had gone away.
She said her statements were true, in that she was feeling much better at that
time. She said she has not had any lower back pain after October 18, 2010 (at
least none that she would attribute to the motor vehicle accident). The
plaintiff seemed to acknowledge that on October 18, 2010 she also told Dr.
Harkness that her cognitive abilities were back to normal, but she denied that
this continued to be the case. She did say she had been taking naturopathic
remedies for her cognitive problems. The plaintiff stated that she has not
taken any pain killing drugs since November 4, 2010.

[53]        
On being questioned about her doctor’s visits on June 5, 2012, August
16, 2012 and September 17, 2012, the plaintiff confirmed that she had been
feeling persistent neck and shoulder pain radiating down into her arms and had
multiple other symptoms including an inability to concentrate. She said that
she had been doing computer searches for jobs, had been using the mouse a lot
and that the next morning she had awoken (in late May 2012) to feel pain
radiating down her arms, which prompted her to go to the doctor (on June 5,
2012). She said that her doctor’s visit of August 16, 2012 was a result of a
similar reaction to excessive computer work, after which she experienced pain
going down the right side of her neck into her right arm and hand. Those
symptoms persisted and caused her to see the doctor again on September 17,
2012.

[54]        
The plaintiff insisted that she had always had these symptoms “from the
beginning” but explained that these symptoms did not become dominant over her
neck and upper back pain until much later.

[55]        
The plaintiff was then questioned about further investigations by Dr.
Steven Dommann for these symptoms (which she was also feeling in the left arm,
but not so severe as on the right side). The plaintiff agreed that Dr. Dommann
suspected the cause was a nerve root problem at the C5 to C6 cervical vertebrae
and that he arranged for her to have an MRI scan, which was done on January 5,
2013. She was aware of Dr. Dommann’s report to Dr. Harkness (February 5, 2013)
stating that the MRI results showed nerve root compression on the right at C5
to C6 and she knew that Dr. Dommann had stated that this “explains her
symptoms”.

[56]        
The plaintiff said that she was referred to Dr. John Stewart by Dr.
Dommann, for nerve conduction tests. She agreed that these tests were done on
August 6, 2013. Counsel pointed out that Dr. Stewart had reported to Dr.
Harkness that “all of her pain has significantly improved”, and asked the
plaintiff whether that was true. The plaintiff said that it was true, at that
particular time.

[57]        
The plaintiff said that she told Dr. Harkness that she had been examined
by Dr. Salvian at her lawyer’s request to determine whether she had thoracic
outlet syndrome. She said Dr. Harkness then referred her to Dr. Jim Hunter whom
she saw on March 11, 2014. She agreed that she told Dr. Hunter that she was
getting pain down both of her arms and was feeling numbness in the fingers of
both hands.

[58]        
The plaintiff said that Dr. Harkness referred her to Dr. Alison Kydd, a
rheumatologist, whom she saw on November 6, 2013. The reason for this referral
was that she had been getting swelling and stiff fingers in her right hand. The
plaintiff said she saw Dr. Kydd for a second visit on March 3, 2014, and at
that time told Dr. Kydd that her symptoms were no longer present (which improvement
she believed was due to her using a naturopathic remedy).

[59]        
The plaintiff was questioned about statements she had made to Dr. Frank
Kemble, neurologist, when she was examined by him on October 28, 2013. She
agreed she told Dr. Kemble that she had been getting low back pain twice a week,
but said that she only got that pain when she vacuum cleaned the stairs in her
house. Counsel suggested to the plaintiff that she told Dr. Kemble that the
pain in her right arm began to bother her several months after the motor
vehicle accident. The plaintiff seemed to agree that she told Dr. Kemble
something like this, but pointed out (from his report) that she also told him
that she noticed it more after her neck pain had decreased and she said that
her right arm pain then became more dominant.

[60]        
Defence counsel suggested to the plaintiff that she told Dr. Kemble that
she did not notice tingling and numbness in the fingers of her right hand until
“six to eight months after the accident.” The plaintiff did not deny telling
Dr. Kemble that she noticed tingling and numbness in the fingers of her right
hand when gripping objects “six to eight months after the accident.” But she
pointed out that she never told the doctor that she had not experienced such
symptoms before that (and she implied that she had experienced such symptoms at
an earlier time).

[61]        
On being questioned about potential employment, the plaintiff said that
she began looking for work as a clinical counsellor, immediately after
obtaining her master’s degree in May 2012. She said that she was looking for a
position either with the provincial government or with a private employer. She
said that there was very little work available in the Nanaimo area. She said
that, by the time of her examination for discovery in February 2013, she had
given up on getting a job with the government and believed that she would have
to go into private practice. But she said that the problem was that she did not
have the money to set up a private practice on her own. She added that, since
she could only work part-time, she could not go into private practice alone,
but would need a partner (or partners) who worked full time.

[62]        
The plaintiff stated that she had put a business plan together, which
contained an estimate of what she could earn as a clinical counsellor, if she
worked full time. She said her business plan did not refer to her two potential
partners, who were Clare Cummings and Aleisha Stewart. She said she was still
taking training courses for counselling marital couples, using the “Gottman
Method” and would finish that course in October 2014. She said that Aleisha
Stewart would be working as a school counsellor until the end of June 2014, and
that she and her two potential partners were planning to start up a private
practice in Ladysmith in January 2015. She said she would specialize in
marriage counselling and her two partners would practice in other fields of
counselling.

[63]        
The plaintiff testified that, in her business plan estimate, she assumed
that she would see three patients a day if she was working full time, and would
earn $41,400 gross income. She said she estimated that she would earn another
$11,500 gross income by conducting workshops twice a month. She estimated that,
after deducting operating expenses from this $52,900 of gross income, she would
earn a net profit of about $22,700 (if she had been working full time).

[64]        
The plaintiff acknowledged that her master’s degree program required her
to work full time on her courses, from May 2010 to May 2012. She agreed that
she put in an average of about 40 hours of work per week in her studies, from
the time of the motor vehicle accident until May 2012, and repeated that she
did not miss any classes.

[65]        
When asked why she could not work full time as a counsellor, the
plaintiff stated that it was because her condition had gotten progressively
worse.

[66]        
Defence counsel put it to the plaintiff that she did not have any
significant pain problems with her right arm and hand until May or June of
2012. The plaintiff denied that suggestion, and repeated that her pain
problems, including the pain in her right arm and hand, had gotten worse and
worse as time went on.

[67]        
In re-examination, plaintiff’s counsel referred her to a diagram which
was annotated by the physiotherapist on September 17, 2010 (Exhibit 4, tab 1,
page 3). The plaintiff stated, in effect, that the diagram shows what she told
the physiotherapist about her symptoms on that date,

The Testimony of Deanna Smith

[68]        
Deanna Smith testified that she is now 45 and that she has lived with
her mother at her Bonnie Drive home since 2002. She said that her sister Kim
Andersen lives downstairs in her mother’s home.

[69]        
Ms. Smith has a daughter, Megan, and she said that both she and Megan
worked with her mother when her mother was operating the coffee house business.

[70]        
Ms. Smith described her mother as being energetic, lively, happy and
hard-working, before the motor vehicle accident. She said that it was her
mother’s dream to get a degree in psychology and to help other people,
including their mental health and nutrition. She described how difficult it was
for her mother to care for own mother after she developed Alzheimer’s disease
and became violent and could not recognize members of her family.

[71]        
Ms. Smith described the large vegetable garden that her mother had kept
and said that they grew almost all of their food in that garden. She said that
her mother would work seven hours per day in the garden during the gardening
season. They also raised a few chickens. She said her mother did all of the
gardening and also cared for the chickens. But since the motor vehicle
accident, Ms. Smith said that she had to do most of the gardening and she took
over the care of the chickens. She said that her sister Kim does the gardening
work required to tend the lawn and flower beds in the front yard.

[72]        
Ms. Smith said that her mother did the housework before the motor
vehicle accident, but since then she has had to do most of it. Ms. Smith said
that she sometimes does 50 to 60 hours of work per week, doing the housework
and said that her sister Kim also does some housework. Ms. Smith said that she
does the cooking now, whereas her mother used to do quite a bit of cooking. Ms.
Smith said that her mother was in an obviously injured condition and was in
shock when she brought her home from the hospital. She said that her mother’s
right hand and arm were bruised, as if her head had hit her hands and arm
during the collision.

[73]        
Ms. Smith stated that, after the motor vehicle, her mother cried a lot,
sometimes for hours, whereas she had never done that before the accident. She
said that her mother had engaged in an active social life before the accident,
but had stopped her social activities since then.

[74]        
Ms. Smith said that her grandmother had died in the summer of 2011, and
that this caused much emotional upset to her mother. She said that her mother
also  became depressed, and felt that she was a failure (in caring for her
mother), and “went into a deep depression.”

[75]        
Ms. Smith stated, in summary, that her mother had undergone a “complete
life change” as a result of her injury in the motor vehicle accident.

[76]        
Ms. Smith was not cross-examined.

The Testimony of Kim Andersen

[77]        
Kim Andersen testified that she is now 47 and that she lives with her
mother in the downstairs part of the house at 3595 Bonnie Drive in Nanaimo,
with her daughter Tatum.

[78]        
Ms. Andersen said that she had lived with her mother previously, but had
moved away in May 2010, to seek work in Burnaby. She said that she moved back
to her mother’s home in June 2012. She stated that she obtained a university
degree in philosophy and English from the University of Lethbridge in 2007. She
is now developing a business in making and selling skin care products.

[79]        
Ms. Andersen described her mother’s active life and confirmed much of
what had already been said by her sister Deanna Smith. Ms. Andersen added that
her mother did a lot of walking, and would go on a long run with her once a
week around Westwood Lake (Ms. Andersen said that she herself went on several
such runs per week). She also said that her mother went hiking.

[80]        
Ms. Andersen stated that her mother rented accommodation to foreign
students, and said that the students felt very comfortable in the home.

[81]        
Ms. Andersen said that her mother’s career plan was “central to her
being.” She confirmed the large garden and front yard on the property, and
described her mother’s reduced ability to do gardening, housework and cooking.
She said that her mother now appears to be in constant pain and she is no
longer fun to be with, because she is upset with her own inability to do the
things she used to do.

[82]        
Ms. Andersen said that she and her siblings always looked to their
mother for guidance and strength, but implied that her mother was no longer
able to provide leadership to the family in the same way as before.

[83]        
Defence counsel did not cross-examine Ms. Andersen.

The Testimony of Deborah Hollins

[84]        
Deborah Hollins testified that she is the executive director of the
Nanaimo Family Life Association and has been employed full time in that
position since 2012. She said that the association offers four programs, one of
which is counselling services. There is one coordinator for each of these
programs, and these four coordinators are paid a salary. Their job is to
supervise volunteers who assist with the programs.

[85]        
Ms. Hollins said she first met the plaintiff in November 2012, but never
got to know her very well.

[86]        
Ms. Hollins says that there was a job opening with the Association for
program coordinator for the “Better at Home” program, which provides services
to seniors. The services included visits to seniors and doing their yard work
and laundry. The program coordinator would organize volunteers to do the
program work for the seniors.

[87]        
Ms. Hollins said that the plaintiff would have been a viable candidate
for the position, but said that the plaintiff did not apply for the job. She
said that there were ten applicants and that she interviewed all of them and
short listed this group down to four of the applicants. One of the applicants
dropped out and the remaining three were interviewed by a group consisting of Ms.
Hollins, the Board of the Association and another person.

[88]        
The person chosen for the position was Kathy Holmes. She had been
volunteering for the Association and had a background in counselling and
teaching. She did not have a master’s degree but she was working toward such a
degree.

[89]        
Ms. Hollins was surprised on hearing that the plaintiff was 69 years of
age, but then said that her age could be a benefit for the position of program
coordinator.

[90]        
Ms. Hollins said that the position of program coordinator was for a one
year term, with the possibility of renewal. The pay was to be $25 per hour and
the work week was 30 hours.

[91]        
In cross-examination, Ms. Hollins said that the job of program
coordinator was posted in late November 2013 and remained open until December
23, 2013. She said that she had received 30 to 35 responses concerning the
position, but had pared it down to ten persons before interviewing those ten.

[92]        
Ms. Hollins said that the decision to hire Kathy Holmes was a collective
decision and that she was by far the best candidate that had applied. Ms.
Holmes started work in January 2014.

[93]        
Ms. Hollins said that, if the plaintiff had applied for the position,
she definitely would have interviewed her (she did not say whether she would
have included the plaintiff on her short list).

The Testimony of Aleisha Stewart

[94]        
Aleisha Stewart testified that she was 29 years old, and lived and
worked in Pemberton, B.C. as a high school counsellor. She obtained her
Bachelor of Education degree in 2008 from the University of Victoria.

[95]        
Ms. Stewart took the same program for the Master of Education degree as
did the plaintiff (starting in May 2010 and graduating in May 2012). She first
met the plaintiff on May 8, 2010 at Parksville, during their first class. Then,
they had three courses together during the six-week session that summer at the
University of Victoria.

[96]        
Ms. Stewart lived with the plaintiff for five weeks in the summer of
2010. She said that the plaintiff was very active and very health conscious,
including exercise and nutrition. She said that she and the plaintiff spent
lots of time together, and described the plaintiff as being a person who had
lots of energy for a person of her age. She said that the plaintiff was a
“dedicated, hard-working student.” She said the plaintiff had a very good
memory. She said that they became personal friends. She did not notice any
physical difficulties on the part of the plaintiff, during those five weeks
that she lived with her in Victoria.

[97]        
Ms. Stewart said that after the motor vehicle accident in September
2010, she observed the plaintiff to have physical and mental problems,
including forgetfulness. She said the plaintiff became anxious about class
assignments and tests.

[98]        
Ms. Stewart said that the plaintiff complained of neck pain radiating
down her back into her arms. She said that the plaintiff would get up out of
her seat often, and leave the classroom to take breaks. She said that the
University classes were on Saturdays and Sundays of three weekends that fall,
from 9 a.m. to 4:30 p.m.

[99]        
Ms. Stewart said that she could see the plaintiff’s right hand was
hurting when she was taking notes and said that the plaintiff was having a hard
time remembering things.

[100]     Ms.
Stewart said that she was presently earning $55,000 per year as a high school
counsellor. She said that she planned to go into business with the plaintiff
and Claire Cummings, and that the three of them would share operating expenses.
She said that she would do child and adolescent counselling and would see not
more than four clients per day (which would mean eight hours of work per day).

[101]     Ms.
Stewart said that she would not be available to start up the new business until
June 2015. She said that she would expect to earn $40,000 to $60,000 per year,
after establishing a counselling practice.

[102]     Ms.
Stewart said that she had noted great changes in the plaintiff after the motor
vehicle accident in that she was in physical pain and suffered cognitive
difficulties (although she said there had been some improvement in her
cognitive abilities).

[103]     In
cross-examination, Ms. Stewart said that she had been working as a high school
counsellor in Pemberton since September 2013, on a one-year temporary contract.
She said that she did not yet know if her contract would be renewed. But she
said that she had a full time job lined up with the Burnaby School District in
September 2014,as an alternative job option.

[104]     Ms.
Stewart said that she knows she could always get a job as a teacher, but said
that she would give up teaching work if she goes into business with the
plaintiff and Claire Cummings. She said that she and the plaintiff got serious
about starting a business together as partners about six months ago, and that
Claire Cummings got involved about two months ago. She said Claire Cummings
would be an addiction counsellor. She said she had told the plaintiff that she
(Ms. Stewart) could not begin any business until June 2015.

[105]     Ms.
Stewart said that, if they started up a business, they would share the expenses
equally and would each put up a certain amount of money for start-up expenses,
but the amount had not yet been decided.

[106]     Ms.
Stewart said that her five weeks of living with the plaintiff ended in August
2010, and that she did not see the plaintiff after that until September 18,
2010 in Parksville.

[107]     Ms.
Stewart said that the plaintiff struggled in all of her classes in the master’s
degree program, up to the time of graduation. She said that the plaintiff did
very poorly in Professor Tasker’s class.

The Testimony of Mia Goodall

[108]     Mia
Goodall testified that she is now 45 and has been living in Nanaimo for about
two and a half years. She had been a registered nurse in Cleveland before
coming to Canada at age 23. She has a diploma in counselling.

[109]     Ms.
Goodall works as a program coordinator for the Nanaimo Family Life Association.
Her job started on October 1, 2012, after she completed a practicum which took
two years.

[110]     Ms.
Goodall coordinates 45 persons who do volunteer work in counselling, by
matching volunteers with clients. She supervises a total of 75 volunteers.

[111]     Ms.
Goodall said that volunteers must be trained, by the Association, which takes a
total of about 200 hours.

[112]     She said
that the clients evaluate the volunteer workers who provide counselling
services to them, and said that the plaintiff had lots of “return” clients. She
referred to Exhibit 4, tab 5 which consisted of evaluation forms for the
plaintiff (completed by clients) between November 14, 2006 and July 29, 2013.

[113]     Ms.
Goodall said that she started her involvement with the Association in October
2010, but did not get to know the plaintiff very well before she became the
Program Coordinator in October 2012. She has not personally observed the
plaintiff to have any apparent difficulties resulting from her motor vehicle
accident, but added that she did not see the plaintiff every time she comes to
do volunteer work.

[114]     Ms.
Goodall said that the plaintiff presently is counselling two separate couples
and that in her volunteer work she usually counsels one to two clients per
week. She said that the plaintiff has volunteered over 500 hours with the
Association, that her clients like her and that she has made a valuable
contribution to the Nanaimo Family Life Association.

[115]     Ms.
Goodall said that the plaintiff’s fairly advanced age is “a plus, not a
drawback”, due to her having more experience.

[116]     On
cross-examination, Ms. Goodall said that she did not know about the plaintiff’s
motor vehicle accident until after she became a supervisor in October 2012,
when she got to know the plaintiff better.

[117]     Ms.
Goodall said that counselling work is not hard physically. She said that
counselling two couples would require two hours per week (one hour per week for
each couple). She said that about 70% of the volunteer workers do the same
amount of counselling work as the plaintiff, which is one to two hours per
week.

The Medical Evidence

The Medical Report of Dr. Harkness dated November
4, 2010

[118]     Dr.
Harkness is a general medical practitioner who has been the plaintiff’s regular
physician since 1994. In her report dated November 4, 2010 (in form CL19, for
I.C.B.C.), Dr. Harkness noted that the plaintiff had made the following
complaints soon after the motor vehicle accident of September 3, 2010:

a)    sore
neck/shoulders;

b)    middle and lower
back;

c)     reduced
ROM;

d)    headache;

e)    tinnitus;

f)      sore
jaw;

g)    dizziness;

h)    reduced memory.

[119]     Dr.
Harkness described the objective findings made when the plaintiff was first
examined as being:

a)    multiple tender
areas – neck/upper back;

b)    pain on ROM, in
neck.

[120]     Dr.
Harkness noted the plaintiff’s subjective complaints on November 4, 2010 to be
the following:

a)    pain in thoraco
lumbar junction;

b)    neck pain;

c)     headaches
(less severe);

d)    insomnia due to
neck pain;

e)    (L) __ [knee?]
gives out.

[121]     Dr.
Harkness described the objective findings she made on November 4, 2010 as
being:

a)    tender at
thoraco lumbar junction;

b)    good ROM in neck
(C/O pain).

[122]     Dr.
Harkness noted that, up to November 4, 2010, the plaintiff had received five
physiotherapy treatments, seven chiropractic treatments and seven massage
therapy treatments. She noted that x-rays of the plaintiff’s spine had been
taken on September 3 and September 28, 2010. She recommended that the plaintiff
should take further chiropractic and massage therapy treatments, as needed.

[123]     Dr.
Harkness’ diagnosis was:

a)    grade II
whiplash associated disorder (i.e. without any “neurological signs”);

b)    headache;

c)     central
back pain;

[124]     Dr.
Harkness recommended that the plaintiff take Aleve as a medication.

[125]    
Dr. Harkness described the degenerative changes identified by the x-rays
as being:

Multi-level cervical spondylosis
C4-7; moderate degenerative narrowing C5-6, C6-7.

[126]     Dr. Harkness
expressed the following opinions about the effects of the injury on the
plaintiff’s physical and mental abilities:

a)    “No limitations
at this time other than takes longer to do school work”;

b)    Current work
capability is: “light”;

c)     “Increased
pain if prolonged computer work (≥
1 hour)”;

d)    “Currently doing
all her school work but takes longer”;

e)    Plaintiff is
capable of carrying out her non-work activities.

Report of Dr. Barry Whyte, D.C. dated July 17,
2012

[127]     Dr. Whyte
is a qualified chiropractor licenced to practice within British Columbia since
2006, who practices in Nanaimo. He treated the plaintiff on 13 occasions,
between September 21, 2010 and March 22, 2011. There was a further visit on May
2, 2012.

[128]    
On his examination of the plaintiff on September 21, 2010, Dr. Whyte
noted, among other things:

Mrs. Adkin showed a decrease in left
arm reflexes and motor strength suggesting a more severe injury than WAD II.

[129]    
Dr. Whyte stated that, on her discharge from treatment on March 22,
2011:

No further objective improvement
had been shown over successive examinations. She was discharged with full
reflexes and muscle strength in her left arm.

[130]     After his
examination of the plaintiff on May 2, 2012, Dr. Whyte expressed the opinion
that the plaintiff “shows minimal improvement since her discharge from care May
22, 2011.” I infer that the improvement he referred to was an increase in the
plaintiff’s cervical range of motion.

[131]    
Dr. Whyte recommended that the plaintiff should continue with exercises
with the help of a chiropractor, physiotherapist or a kinesiologist. He said
that other options for pain management could include acupuncture and cold
laser/deep tissue laser. He also stated his opinion that:

During her recovery it is my
recommendation that she should not restrict household duties and should perform
all duties as tolerated based on her symptoms.

[132]    
Dr. Whyte’s prognosis included the following:

Mrs. Adkin’s recovery will be complicated by pre-existing
degenerative changes. Complications will include: increased recovery time,
increased symptoms and an increase in degenerative changes in the future. . . .
Recovery from this type of accident typically takes approximately two years.
Mrs. Adkin could expect her recovery to extend past two years due to complications.

The Reports of Dr. Deborah Allison dated June 17,
2011 and March 27, 2014

[133]     Dr.
Allison is a registered psychologist who has special training and experience in
neuro-psychology. She examined and tested the plaintiff on May 30 and 31, 2011
at the request of plaintiff’s counsel.

[134]     Dr.
Allison noted the following complaints of the plaintiff. (My summary):

a)    fatigue from
inability to sleep properly;

b)    emotional upset,
including anxiety and inability to cope with stress;

c)     decreased
memory (which the plaintiff said had improved in the last several months but
was not back to its former level);

d)    decreased
concentration and inability to focus on her school work; and

e)    physical
problems with her neck and some headaches (but the headaches had improved).

[135]     Dr.
Allison’s interpretation of the test results included the following:

a)    the plaintiff’s
concentration and memory abilities were tested and found to be “normal” (in the
average to superior range). (Page 7)

b)    the plaintiff
“demonstrated a good ability to both learn and remember new information,
whether this information was auditory or visual in nature.” (Page 8)

c)     the
plaintiff had “good perceptual ability” and “normal sensory and motor
abilities.” (Page 8)

d)    the plaintiff
possessed a “severe range of symptoms of anxiety . . . and depression.” (Page
9)

[136]     Dr.
Allison stated that:

These results and observations
were consistent with a marked level of emotional distress, in the form of both
anxiety and depression, sufficient to interfere with cognition.    (Page 9)

[137]     After
summarizing the strengths and weaknesses of the plaintiff on her
neuropsychological assessment, Dr. Allison expressed the following opinions (my
paraphrasing):

a)    The plaintiff
did not suffer a concussion injury from the motor vehicle accident. (Page 10)

b)    The plaintiff’s anxiety
and depression are caused by the motor vehicle accident. (Page 10)

c)     Any
weaknesses in the plaintiff’s memory or cognitive skills (which were minimal)
were caused by her emotional distress and fatigue caused by inability to sleep
properly, which were both caused by the motor vehicle accident. (Page 10)

[138]     As to
treatment recommendations and prognosis, Dr. Allison was of the opinion that
the plaintiff should be provided with cognitive behavioral therapy from a
registered psychologist, for her emotional distress and that with the
appropriate treatment and improved sleeping, the plaintiff “should experience
an improvement in her cognitive skills, hopefully back to pre-accident level.”
(Pages 10 – 11)

[139]     Dr.
Allison prepared a second report dated March 27, 2014, after examining the
records and reports of Dr. Stewart, (neurologist), Dr. Kemble (neurologist),
Dr. Whyte (chiropractor) and Dr. Salvian (vascular surgeon). She stated that
her opinions remained unchanged from those expressed in her original report. She
also stated that emotional distress interacts with pain and tends to worsen the
perception of pain. In both of her reports, Dr. Allison stated that the
plaintiff had not experienced any episodes of significant anxiety or depression
in the two years before the accident.

The Report of Dr. Anthony Salvian, Vascular
Surgeon dated November 5, 2013

[140]     Dr.
Salvian is a Vascular Surgeon who has a special interest (and much experience)
in the diagnosis and treatment of thoracic outlet syndrome. He examined the
plaintiff at the request of plaintiff’s counsel, on September 4, 2013. The
stated purpose of his report was to assess the plaintiff’s complaints of:

a)    headache.

b)    right-sided neck
pain.

c)     occasional
numbness, tingling and pain down the right arm and hand and into the fingers.

[141]     Dr.
Salvian states that the plaintiff described her symptoms, and the history of
her symptoms, as follows (my summarizing):

a)    She had a
constant headache for two to three months after the accident, and the headaches
then gradually became intermittent. She has had no significant headache for the
past year (i.e., in the year before September 4, 2013). She occasionally feels
light-headedness if she turns her head up in a certain way.

b)    She experienced
neck pain immediately after the motor vehicle accident, and it has continued.
The neck pain has improved, but is ongoing. Sitting makes the pain worse.

c)     She
sometimes feels numbness, tingling and pain down the right arm and hand and
into the fingers, which radiates from her neck and shoulder into the right arm.

d)    As to the
symptoms in her right arm and hand, she experienced these symptoms “immediately
at the time of the car accident”. The pain became worse within a week due to
using her right arm for more activities (such as moussing and typing when
working on a computer. In or about March 2012, she could not use her hand for a
day or two (after doing a lot of moussing).

[142]     Dr.
Salvian made the following findings on his examination of the plaintiff on
September 4, 2013:

a)    She was very
tender over the right trapezius, tender over the right scalene muscles and
there was “some radiation of discomfort to the right shoulder.”

b)    He noted marked
tenderness in the right parascapular region (particularly the rhomboids and
trapezius).

c)     She
experienced some pain in her right shoulder on the elevation of her right arm.

[143]     On
reviewing the medical records and reports made available to him (Dr. Kemble had
not yet examined the plaintiff), Dr. Salvian drew the following conclusions:

a)    The plaintiff
complained of tingling in the first, second and third fingers of her hand (he
does not say which hand) “within about three weeks of the motor vehicle
accident of September 3, 2010.” (Page 13) He said that the plaintiff began to
describe these symptoms within the first three or four weeks after the accident
(Page 24).

b)    Dr. Steven
Dommann, neurologist, noted that on November 26, 2012, the plaintiff told him
that she had been experiencing pain into the last three fingers of her right
hand “since the motor vehicle accident”.

c)     In his
follow-up report of February 5, 2013, Dr. Dommann commented on the MRI scan of
the plaintiff done on January 5, 2013, as follows:

The MRI reveals evidence of a C5/6 nerve root compression on
the right, which would explain her symptoms (Page 16)

d)     The plaintiff had never reported pain radiating into
her arms or hand before the motor vehicle accident, except on one occasion when
she reported similar symptoms to her chiropractor Dr. Butcher, on November 4,
2007 (Pages 17 – 18). Dr. Salvian later says (at page 23) that: “she had a very
mild episode of this in 2008”, but I infer that he is referring to the incident
on November 4, 2007.

[144]    
Dr. Salvian expressed the following opinions:

a.     In
the motor vehicle accident of September 3, 2010, the plaintiff sustained
“injury of the ligaments and muscles of the neck and upper back”. (page 20)

b.     That
injury caused, and continues to cause, pain in the right side of the
plaintiff’s neck and upper back, and related headaches. (page 20)

c.     The
plaintiff had pre-existing “chronic myofascial pain related to an assault in
1999” (page 24) and “mild asymptomatic degenerative disc disease in her
cervical spine.” (page 26) These pre-existing conditions occasionally caused
neck pain to the plaintiff but such pain “was relatively mild and was not
preventing her from doing all of her regular activities.” (page 26)

d.     “At
the present time the most likely cause for the paresthesia’s radiating into the
right arm I think is her cervical disc disease.” (page 21) Dr. Salvian seems to
accept that the cervical disc disease caused compression of the C6 nerve root
as it leaves the cervical spine and that this is the cause of the plaintiff’s
symptoms in her right arm, hand and fingers.

e.     The
injuries sustained by the plaintiff in the motor vehicle accident caused her
cervical spine disease to worsen to the point where there is compression of the
C6 nerve root (which is the cause of her symptoms). (pages 20, 21)

f.     
“It is my opinion that it is unlikely that Ms. Adkin would have
developed these symptoms [in her right arm, hand and fingers] had she not been
involved in that trauma.” (page 26)

g.     The
plaintiff does not have a recurrence of carpal tunnel syndrome and so that is
not the cause of her right arm and hand symptoms.

h.     . . .
“while I think that most of her symptoms are related to her cervical disc disease,
I think that it is possible that she has some symptoms of thoracic outlet
syndrome.” (page 26)

[145]     The
reasons relied on by Dr. Salvian to support his opinion as to the cause of the
plaintiff’s right arm and hand symptoms included the opinion of Dr. Dommann and
his own view that the experts who initially interpreted the CT scan of the
plaintiff’s cervical spine dated September 10, 2012 and the MRI scan of the
plaintiff’s cervical spine dated January 5, 2013 used language which implies a
significant increase in the degenerative changes in the plaintiff’s cervical
spine since the accident of September 3, 2010.

[146]     As to
prognosis, Dr. Salvian states that the plaintiff “has a chronic myofascial
pain, which in my experience will be long lasting now that it has been
persistent for at least three years, particularly since it was present in a
milder form prior to the September 2010 motor vehicle accident due to her
previous trauma. It is my opinion that the myo fascial neck pain and headache
is likely to be long-standing and will fluctuate depending on her activity.”
(page 23)

The Other Medical Records

[147]     The other
clinical records presented show that the plaintiff received 12 massage therapy
treatments between September 20, 2010 and January 10, 2011. They also show that
she received four physiotherapy treatments between September 17 and October 19,
2010 (the plaintiff testified that the physiotherapy treatments were not
helpful).

[148]     The
clinical records of Dr. Marshall Butcher, D.C. show that he treated the
plaintiff (mainly for neck, upper back and shoulder pain) on 26 occasions
between October 28, 1999 and May 25, 2009. She received three treatments in
1999 and five in 2000. In the years 2001, 2002, 2003, 2004, and 2006, the
plaintiff received only one chiropractic treatment in each year. There were two
treatments in 2005, five treatments in 2007, three in 2008, and three in 2009.

Medical Evidence presented by the defence

The Report of Dr. Frank Kemble, Neurologist dated
October 29, 2013

[149]     Dr. Kemble
is a neurologist. He conducted an independent medical evaluation of the
plaintiff at the request of defence counsel. He interviewed and examined the
plaintiff on October 28, 2013.

[150]     Dr. Kemble
reviewed most of the medical records and reports but did not have Dr. Salvian’s
report, as it had not yet been prepared.

[151]     The
plaintiff’s complaints to Dr. Kemble about her symptoms and the history of her
symptoms were, in summary, as follows:

a)    The
neck pain caused by her being assaulted in 2000 [it was actually early 1999]
cleared up within a month.

b)    She
had not experienced neck pain from any other cause except that assault, before
the motor vehicle accident.

c)     She
still gets pain in her low back from doing such things as vacuuming and she had
not experienced lower back pain before the motor vehicle accident.

d)    She
still gets headaches as a result of the injury she received in the motor
vehicle accident and she had never experienced any significant problem with
headaches before the accident.

e)    She
began to feel pain in her right arm several months after the motor vehicle
accident, when the pain in her neck decreased and she became more aware of pain
in other areas; and she had not experienced such pain in her right arm before
the accident.

f)      She
noticed tingling and numbness in the thumb and first two fingers of her right
hand when gripping objects, about six to eight months after the accident.

[152]     Dr. Kemble’s
findings on examination of the plaintiff included the following:

a)    The
plaintiff demonstrated good range of motion in her neck.

b)    He
detected tenderness in the right and left sides of the plaintiff’s neck.

c)     The
plaintiff had slight restriction of mobility in the right shoulder and had pain
on manipulation of the shoulder.

d)    She
was tender over the common extensor tendon insertion at the right more than
left elbow.

e)    Some of the
small finger joints of the right hand are visually swollen and are tender to
pressure.

[153]     Dr. Kemble
expressed a number of opinions at pages 11 – 12 of his report, which included
the following:

a)    The
cervical pain is due to a soft tissue inflammation and is not due to nerve
dysfunction.

b)    The
plaintiff is under emotional stress, mainly anxiety, which probably reduces her
pain tolerance and perpetuates her neck pain. If the plaintiff received
effective treatment to reduce her emotional stress, her neck pain should
decrease.

c)     The
plaintiff’s low back pain will probably resolve completely.

d)    The
plaintiff’s headaches tend to occur together with her neck pain, so the
headaches should also reduce to their pre-accident level, with stress
reduction.

e)    The
plaintiff’s cognitive impairment has probably been caused by emotional stress.
It will also probably resolve with the reduction of her emotional stress level.

f)     
The plaintiff’s pain in her shoulder areas is probably caused by the
soft tissue injury that she sustained in the motor vehicle accident and it
should gradually improve as her emotional stress level is reduced.

g)    It
is unlikely that the pain in the plaintiff’s right arm was caused by the injury
she received in the motor vehicle accident. It is also unlikely “that the pain
in the right arm is neurogenic in origin.”

h)    The
most likely explanation for the numbness and tingling in the thumb and the
first two fingers of the right hand is the plaintiff’s pre-accident nerve
damage being aggravated by the combination of the plaintiff’s physical pain and
emotional stress. Those symptoms will probably fully resolve if her stress
level is reduced.

i)      
The pain and swelling in the fingers of the plaintiff’s right hand is
due to arthritis and is unrelated to the accident.

j)      As
to prognosis, the pain she is experiencing from the injury she received in the
motor vehicle accident should resolve, when her emotional stress level is
reduced. But for an indefinite time into the future, the plaintiff will be left
with a “tendency to develop more cervical pain with repetitive [physical]
activity, compared with previously.”

The Report of Dr. Douglas G. Connell, Radiologist,
dated June 10, 2013

[154]     Dr.
Connell is a radiologist with sub-speciality training in musculoskeletal
radiology. He was asked by defence counsel to review the x-rays, the CT-scan
and the MRI scan of the plaintiff’s cervical spine and to give an opinion as to
any anatomic abnormalities that are present and whether any of them would have
been caused by the motor vehicle accident of September 3, 2010.

[155]     In Dr.
Connell’s opinion, the disc space narrowing and the narrowing of the right neuro-foramina
(due to osteophytes) that he saw on the x-rays of the plaintiff’s cervical
spine taken September 3, 2010 and September 28, 2010, were degenerative changes
which pre-existed the motor vehicle accident; and: “There is no change in the appearance
of the disc space narrowing or the foramina narrowing in comparing the initial
plain radiographs of the cervical spine obtained the day of the accident with
the later CT and MRI evaluations.”

The Issue of Credibility

[156]     Defence
counsel challenged the plaintiff mainly on two parts of her testimony. The
first was her testimony to the effect that she has been experiencing pain
radiating from her right shoulder down into her right arm and hand, with
numbness and tingling in the first three fingers of her right hand, since about
a week after the accident of September 3, 2010. The second was the plaintiff’s
testimony to the effect that, because of the injury she received on September
3, 2010, and the ongoing effects of the injury, she was not able to work as a
counsellor at all for a significant period of time after obtaining her master’s
degree, and she will not in the future be able to work full time as a
counsellor.

[157]     Defence
counsel did not make a direct challenge to the plaintiff’s honesty. But he
submits that the plaintiff’s testimony on these issues is unreliable and should
not be accepted. It was implicit in the position of the defence that the
plaintiff was mistakenly attributing her ongoing symptoms of pain and
disability to the injury she received in the motor vehicle accident, when the
probable causes of her ongoing pain (both physical and mental) are the
pre-existing conditions of chronic neck pain, cervical spine degeneration and
emotional distress.

[158]     Defence
counsel did not mount any challenge to the credibility of the plaintiff’s two
daughters, Deanna Smith and Kim Andersen. The defence appeared to accept that
the injury suffered by the plaintiff in the motor vehicle accident interfered
with the plaintiff’s capacity for physical activity for a considerable length
of time. The case for the defence is that, at some point not later than two
years after the accident, the effects of that injury had resolved and the
plaintiff’s ongoing symptoms were thereafter being caused by her pre-existing
conditions. In general, I accept the evidence of Ms. Smith and Ms. Andersen,
with one notable exception. I do not accept Deanna Smith’s evidence that her
mother’s right forearm and right hand were bruised, when she brought her home
from the hospital.

[159]     The
defence did not attempt to impeach the credibility of the two witnesses who
were employed by Nanaimo Family Life Association, Mia Goodall and Deborah
Hollins. I accept their evidence.

[160]     Aleisha
Stewart testified that, during the time she was in the plaintiff’s classes in
the master’s degree program (after the accident), the plaintiff had complained
of neck pain radiating down her back and into her arms. Ms. Stewart also said
that she could tell that the plaintiff’s right hand was hurting when she was
writing notes in class. Ms. Stewart did not say when the plaintiff’s complaints
and her own observations first occurred or how many times they occurred or over
what period of time she made these observations. Ms. Stewart did not say that
the plaintiff made complaints to her about pain (or numbness or tingling) in
her right hand. But this part of her testimony is important because, if
accepted, it could be capable of confirming the plaintiff’s evidence on the
issue of the timing of the onset of her serious right hand symptoms (as argued
by plaintiff’s counsel).

[161]     Defence
counsel did not challenge Ms. Stewart in cross-examination concerning these
matters. But I infer that, to the extent that this evidence may be capable of
supporting an inference that the plaintiff was having significant difficulties
with her right hand within a month or two after the accident, the defence would
submit that her evidence is not capable of supporting that inference, or
alternatively that such inference should not be drawn.

[162]     I can
accept that Ms. Stewart made the observations of the plaintiff that she
testified to. But I would not draw the inference that she observed the
plaintiff to be experiencing significant right hand difficulties, within a
short time after the accident, or even within a few months after the accident.

[163]     The
evidence of Dr. Harkness is to the effect that, as of November 4, 2010, the
plaintiff had not complained of, nor exhibited, any pain or neurological
symptoms in her right hand. The plaintiff conceded she could be mistaken in her
belief that she had told Dr. Harkness about her right hand symptoms soon after
the accident. In these circumstances, I find that the plaintiff had not told
Dr. Harkness that she was having difficulties with her right hand, as of
November 4, 2010. To my mind, that makes it improbable that Ms. Stewart’s
observations of the plaintiff’s writing difficulty were made before the end of
2010. And due to the lack of details in Ms. Stewart’s testimony, her
observations could well have been made, much later than that. I do not think
Ms. Stewart’s evidence is capable of confirming the plaintiff’s evidence on the
issue of whether the plaintiff experienced numbness and tingling in the fingers
of her right hand within a month after the accident.

[164]     For the
most part, I found Ms. Stewart to be a credible witness, and in general I
accept her evidence. But I was skeptical of her description of the extent to
which the plaintiff’s physical capabilities had deteriorated after the
accident. It seems improbable to me that Ms. Stewart would want to go into
private practice with the plaintiff, if she believed that the plaintiff was
physically impaired and suffering pain to the degree that was implied by her
testimony.

[165]     None of
the experts who gave medical opinion evidence were called as witnesses at the
trial and so their credibility cannot be in issue in the usual sense. But there
are conflicts between Dr. Salvian and Dr. Kemble, there is a conflict between
Dr. Salvian and Dr. Connell and there is a conflict between Dr. Kemble and Dr.
Allison. In addition, counsel for the plaintiff implied that Dr. Harkness’
opinion (on November 4, 2010) that the plaintiff had not exhibited any
neurological signs, should not be accepted. Plaintiff’s counsel argued that Dr.
Salvian’s opinions should be accepted over those of Dr. Kemble. Defence counsel
argued that Dr. Salvian’s opinion was seriously weakened by his reliance on the
mistaken assumption that the plaintiff had reported right arm and hand symptoms
soon after the accident, and by the contradictory opinion given by Dr. Connell.
Defence counsel submitted that the opinion of Dr. Allison should be discounted,
because she mistakenly assumed that the plaintiff had not suffered any significant
episodes of emotional distress for two years before the accident (whereas the
plaintiff had been seen by Dr. Cheung about ten months before the accident,
complaining of emotional stress). Plaintiff’s counsel challenged Dr. Kemble’s
qualifications to give opinions about the effects of emotional stress. I will
return to deal with these expert opinion issues, later in these reasons.

The Credibility of the Plaintiff

[166]     Defence
counsel says there are several weaknesses in the plaintiff’s credibility which
should lead the court to reject her evidence on the disputed issues. It is first
said that her previous conduct in failing to complain about allegedly disabling
right hand symptoms was conduct inconsistent with the truth of her trial
testimony as to the date of the onset of these symptoms. Next, counsel says
that the plaintiff has made previous statements about that issue and other
issues, that are inconsistent with her trial testimony. Defence counsel also
contends that the plaintiff’s conduct in pursuing and successfully completing
her master’s degree program without missing any classes or assignments, and
without seeking medical treatment after March 2011, is inconsistent with her
evidence that she was disabled from working as a counsellor beginning in May
2012, and her evidence that she will in future only be able to work half time
as a counsellor. Counsel also suggested there were improbabilities in the
plaintiff’s version of events.

[167]     The
defence submits that the plaintiff failed to complain about disabling pain
throughout her right arm or numbness and tingling in the fingers of her right
hand, to any health care professional, until June 5, 2012 when she told Dr.
Harkness about it. In her trial testimony, the plaintiff said that she did tell
Dr. Harkness about her right arm symptoms fairly soon after she felt them
(which she insisted was shortly after the accident). When pressed further on
cross-examination the plaintiff testified in effect that, if she did not tell
Dr. Harness about these symptoms, then her failure to mention it was because
her neck pain was much worse than her right arm symptoms and her attention was
focussed on her neck pain. Defence counsel argued that this evidence of the
plaintiff should be rejected, for a number of reasons.

[168]     It was
first pointed out that Dr. Harkness had seen the plaintiff on six occasions before
she prepared her report dated November 4, 2010 (in which she reported that
neurologic examination and testing of the plaintiff was normal). Moreover, none
of the clinical notes written by Dr. Harkness (or any substitute doctor)
contain any complaint by the plaintiff about right arm or hand symptoms until
Dr. Harkness’ notes on June 5, 2012.

[169]     It is next
pointed out that Dr. Whyte, chiropractor, treated the plaintiff on 13 occasions
between September 21, 2010 and March 22, 2011 and that he did not report any
complaints made by the plaintiff about her right arm or hand.

[170]     The
defence further argues that, when the plaintiff first complained to Dr.
Harkness about right arm and hand symptoms in June 2012, the doctor took
detailed notes of the plaintiff’s complaints, followed up on several subsequent
visits and referred her to a neurologist, Dr. Dommann. Counsel says that when
these right arm and hand symptoms were first reported by the plaintiff, they
were obviously a major problem for her and Dr. Harkness promptly initiated an
extensive investigation of these symptoms. Counsel submitted that it is highly
improbable that the plaintiff complained to Dr. Harkness much earlier, but Dr.
Harkness had failed to make any note of it.

[171]     The
plaintiff admitted (or did not deny) that she told Dr. Kemble on October 28,
2013 that she did not experience pain in her right arm until several months
after the accident and that she did not feel numbness and tingling in the
fingers of her right hand until six to eight months after the accident. Defence
counsel says that these statements (which are obviously inconsistent with the
plaintiff’s trial testimony) should be accepted as being closer to the truth.

[172]     Counsel
for the plaintiff argued that the plaintiff must have told her physiotherapist
on September 17, 2010 about the pain radiating down into her right arm, based
on the diagram drawn and annotated by the physiotherapist and by the
plaintiff’s testimony about that diagram, on re-examination.

[173]     The
clinical notes of Hannah Barnes, physiotherapist, made September 17, 2010
contained two diagrams (see Exhibit 4, Tab 1, page 3). The notes related to one
diagram indicate that the plaintiff’s left arm had gone to sleep. The other
diagram showed a rear-view of a human figure, which had markings on the back of
the neck, across the shoulders and down the back of both the left and right
arms (down to the wrist), indicating areas of “deep constant ache”, “deep
tender” and “shoot P.” The note “shoot P” is beside the left arm, and the physiotherapist
has written (at the top right of the diagram) “ ≥ ®”
which I take to mean that the symptoms were worse in the left side than on the
right. In her notes under the heading “Paresthesia and other symptoms”, the
physiotherapist wrote (among other things) “Tingling D1 – 3. L.” I take that
note to mean that the plaintiff was complaining of tingling in the fingers (digits
1 – 3) of her left hand. On re-examination, the plaintiff testified to the
effect that the diagram shows what she told the physiotherapist on September
17, 2010. I conclude that this evidence does not support the plaintiff’s evidence
as to when she first complained of (or felt) numbness and tingling in the
fingers of her right hand.

[174]     The
plaintiff did tell Dr. Salvian on September 4, 2013 that she had experienced
right arm pain and numbness and tingling in the fingers of her right hand,
within about a week of the accident. That statement was made three years after
the accident, and is contradicted by the statements that she made to Dr. Kemble
less than two months later on October 28, 2013.

[175]     The
plaintiff made a statement to Dr. Kemble to the effect that the neck pain from
her assault injury in 1999 had only lasted for about a month. That is of course
inconsistent with the plaintiff’s trial testimony and her treatment by Dr.
Butcher over the years.

[176]     I would
also note that the plaintiff testified that she was no longer experiencing any
pain in her low back as a result of the accident, as of October 18, 2010, yet
she seemed to be telling Dr. Kemble, on October 28, 2013, that she was still
getting occasional low back pain attributable to her injury in the motor
vehicle accident. The plaintiff clarified on cross-examination that her low
back complaints to Dr. Kemble were not related to the accident. However, when
taken together with her inconsistent statements made to Dr. Salvian and Dr.
Kemble about the date of the onset of her right arm and hand symptoms, and to
Dr. Kemble as to the duration of the effects of the 1999 assaults, these
statements made by the plaintiff, even taken by themselves, support the
conclusion that she is not a reliable historian.

[177]     There is
further evidence which suggests that the plaintiff’s evidence as to the effects
of her injuries is not always reliable. She testified at trial that her
symptoms of pain and disability (all of them) have not improved but have
gradually gotten worse as time has gone on. Yet she admittedly told Dr.
Harkness on October 18, 2010 that her cognitive abilities had returned to
normal. Much later, on August 6, 2013, she told Dr. Stewart words to the effect
that “all of her pain has significantly improved.” Then on September 4, 2013
she told Dr. Salvian that her symptoms had stayed about the same.

[178]     I am not
persuaded that the plaintiff’s explanations, such as were given, for her
inconsistent conduct and statements, are sufficient to neutralize those
inconsistencies.

[179]     Defence
counsel suggested that the change in the demeanour of the plaintiff over the
course of her trial testimony indicated that her complaints of constant
debilitating pain were not reliable. Counsel pointed out that the plaintiff had
professed to be in considerable pain at the beginning of her testimony and
exhibited pain related behaviour, whereas she seemed to gain strength in her
speaking, her posture and her gestures as her examination progressed.

[180]     I agree
with defence counsel that there was such a change in the plaintiff’s demeanour
over the course of her trial testimony. But I would not draw any adverse
inference from that change in demeanour. It is equally consistent with the
plaintiff merely rising to the challenge of a lengthy and penetrating
cross-examination.

[181]     I place
little weight on the sometimes long gaps between the plaintiff’s visits to her
regular doctor or to other health care professionals. I would not infer that
her conduct indicates she was not experiencing pain during these gaps, although
I find it unlikely that such pain was serious or significantly debilitating.

[182]     For the
reasons I have outlined, it is my opinion that the plaintiff was not a credible
witness on the issues put in dispute by the defence. I find that she was
mistaken in giving important parts of her evidence. As a consequence, I am not
prepared to accept the plaintiff’s testimony on the disputed issues, unless I
find that it is confirmed by other evidence.

Preliminary Findings of Fact

[183]     A number
of relevant facts are admitted and other facts are not seriously in dispute. I
find that the following facts have been proved:

a)    The plaintiff
sustained an injury to the soft tissues of her neck and upper back, as a result
of the motor vehicle accident of September 3, 2010.

b)    That injury was
of moderate degree and it caused physical pain to the plaintiff for many months
after the accident.

c)     The
physical pain from her injury partially disabled the plaintiff, in the sense
that it reduced her capacity to engage in the physical activities that she had
previously engaged in, for many months after the accident.

d)    The injury
caused emotional stress (in the form of anxiety and depression) to the
plaintiff for many months after the accident.

e)    The emotional
stress caused by her physical injury reduced the plaintiff’s mental powers of
memory and concentration, for at least several months after the accident.

f)      The
plaintiff had a pre-existing condition of chronic neck pain from a soft tissue
injury in 1999.

g)    The plaintiff
had a pre-existing condition of cervical spondylosis (degenerative changes in
her cervical spine).

h)    The plaintiff’s
pre-existing conditions caused pain in her neck, upper back and shoulders before
the motor vehicle accident from time to time, but for more than a year before
the accident the pain had not caused her to seek medical treatment and had not
prevented the plaintiff from carrying on a physically active life.

i)       Before
the accident, the plaintiff had been experiencing episodes of significant
emotional stress, for a number of years, the last time being about ten months
before the accident.

j)      Before
the accident, emotional stress interfered with the plaintiff’s enjoyment of
life, but the stress did not prevent the plaintiff from carrying on her usual
physical activities or her academic studies.

k)     At the
time of trial, the plaintiff continued to experience symptoms of physical pain
in her neck, upper back, shoulders and arms and since at least May 2012 she has
been experiencing symptoms of numbness and tingling in the first three fingers
of her right hand.

l)       It
is likely that the plaintiff will continue to experience these symptoms for an
indefinite period of time into the future.

m)  At the time of trial, the
plaintiff continued to experience symptoms of emotional stress (mainly anxiety
but also depression).

n)    It is likely
that, unless she receives appropriate treatment for her emotional stress, the
plaintiff will continue to experience feelings of emotional stress for an
indefinite period of time into the future.

The Issues of Causation

[184]     On the
issue of causation, defence counsel did not argue that the plaintiff does not
believe that her ongoing physical pain and emotional stress are being caused by
the injury she sustained in the motor vehicle accident. The defence position
appears to be that, regardless of the plaintiff’s belief, the expert medical
evidence does not establish that her belief is true.

[185]     The
disputed issues relating to causation are the following:

a)    Are any of the
plaintiff’s ongoing physical symptoms now being caused by the injury she
sustained in the motor vehicle accident?

b)    If so, will the
plaintiff continue to experience these physical symptoms for an indefinite
period of time in the future?

c)     Are any of
the plaintiff’s ongoing symptoms of emotional stress now being caused by the
injury she sustained in the motor vehicle accident?

d)    If so, will the
plaintiff continue to experience these symptoms of emotional stress for an
indefinite period of time in the future?

e)    Will the
plaintiff be unable to work full time in the future, as a result of the injury
she sustained on September 3, 2010?

[186]     There is
no dispute that the plaintiff had experienced numbness and tingling in the
fingers of her right hand, by May 2012. But she testified that she had been
feeling these symptoms since not long after the accident, and that allegation
is in issue. In the absence of evidence which confirms the plaintiff’s
testimony, I make the following findings with respect to the onset of
significant symptoms in her right arm and hand:

a)    The
plaintiff did not tell Dr. Harkness that she was feeling any pain in her right
arm, or any numbness or tingling in the fingers of her right hand, until June
5, 2012.

b)    The
plaintiff may have felt some pain in her right arm on a few earlier occasions,
beginning a few weeks after the accident. But that pain was not constant or
frequent, and it was not sufficient to cause her to complain to her regular
physician, until June 5, 2012.

c)     The
plaintiff did not make any report to any health care professional before June
5, 2012, that she was experiencing numbness and tingling in the fingers of her
right hand, before June 5, 2012.

d)    I
accept the findings made and the opinions expressed by Dr. Harkness in her
report dated November 4, 2010 (which I have discussed at paragraphs 118 to
126).

e)    I
am not persuaded that the plaintiff felt any significant pain in her right arm
or that she felt any significant numbness or tingling in the fingers of her
right hand, before May 2012.

The Conflicting and Challenged Medical Opinions on
Causation

[187]     Dr.
Salvian is of the opinion that the injury sustained by the plaintiff on
September 3, 2010 is the cause of her ongoing physical symptoms of neck pain
and the numbness and tingling in the fingers of her right hand. It seems to me
that Dr. Salvian accepted Dr. Dommann’s opinion (expressed in his consultation
report of February 5, 2013) that there was compression of the nerve root at the
C 5/6 level of the plaintiff’s cervical spine on the right side, and that this
nerve root compression was (and continues to be) the cause of the plaintiff’s
symptoms of “pain radiating from the right side of her neck, down the arm to
the forearm and the lateral three digits of the right hand.”

[188]     Dr.
Salvian accepted the plaintiff’s statement to him that she had experienced
these right-hand symptoms very shortly after the car accident (at least within
a month). From that conclusion, Dr. Salvian appears to reason (at page 26 of
his report) that the injury “likely caused compression and irritation of the C
6 nerve root with some degree of swelling.” I think he is saying that the
initial compression and irritation of the C 6 nerve root was caused by the
swelling of the soft tissues injured in the accident. He then goes on to
conclude that the injury caused the plaintiff’s cervical spine disease to
worsen and seems to imply that this worsening of her pre-existing condition
simply perpetuated the compression and irritation of the C 6 nerve root which was
causing the plaintiff’s symptoms. Dr. Salvian went on to say that it was
“possible” that the plaintiff also has some symptoms of thoracic outlet
syndrome.

[189]     I see several
problems with Dr. Salvian’s opinion. First, he has relied on the plaintiff’s
statement as to the timing of the onset of these symptoms, which I have found
to be mistaken. He seems to have found confirmation of the plaintiff’s
statement in the clinical records of Hannah Barnes, physiotherapist where she
notes the plaintiff’s complaint of “tingling in digits 1 – 3.” I think Dr.
Savian mistakenly inferred that the physiotherapist was referring to the
plaintiff’s right hand, whereas I have found that the reference was to the
plaintiff’s left hand.

[190]     The second
problem is that Dr. Salvian relied on his interpretation of the reports made by
the doctors who reported the results of the plaintiff’s x-rays, CT scan and MRI
scan, and concluded from the language they used that the plaintiff’s spinal
degeneration had worsened between the time of the accident and the time of the
MRI scan on January 5, 2013. The evidence does not suggest that Dr. Salvian
himself reviewed the x-rays, CT scan or MRI scan.

[191]     In his
report dated June 10, 2013, Dr. D.G. Connell, radiologist, stated that he had
reviewed all of the x-rays, CT scan and MRI scan relating to the plaintiff, and
expressed his opinion that these tests did not show any change in the pre-existing
degenerative changes in the plaintiff’s cervical spine, between the date of the
motor vehicle accident and January 5, 2013 (i.e. no change in the disc space
narrowing or foraminal narrowing). Dr. Salvian had Dr. Connell’s report, and
noted his opinion (at page 13) but makes no further comment about it.

[192]     Dr.
Connell is an experienced radiologist, and he personally reviewed the test
results. In these circumstances, I accept Dr. Connell’s opinion. As a
consequence, I find that  Dr. Salvian relied on another assumption of fact that
is unfounded.

[193]     A third
difficulty with Dr. Salvian’s opinion is his reliance on the opinion of Dr.
Dommann. Although it was accepted by the parties that the plaintiff had a
pre-existing condition of cervical spine degeneration, Dr. Dommann expressed
the additional opinion that her pre-existing condition was causing the
plaintiff’s symptoms of numbness and tingling in the fingers of her right hand.
I do not doubt Dr. Dommann’s competence to give such an opinion. But his
opinion was not expressed in the form of an expert report as required by the Rules
of Court. Moreover, I was not told by counsel that it was agreed that Dr.
Dommann’s opinion was admissible or that it was agreed that his opinion should
be accepted as fact. In the result, I do not see how I can accept Dr. Dommann’s
opinion, notwithstanding that it seems to be a most reasonable, common-sense
conclusion.

[194]     I place no
weight on Dr. Salvian’s speculative opinion about the possibility of thoracic
outlet syndrome.

[195]     In the
result, I am unable to accept Dr. Salvian’s opinion that there is a causal connection
between the motor vehicle accident and the plaintiff’s debilitating symptoms in
her right arm and hand.

[196]     Dr. Kemble
gave the opinion that the plaintiff’s ongoing pain in her right arm and the
numbness and tingling in the thumb and two fingers of her right hand were
probably not caused by the injury she received in the motor vehicle accident.
He expressed the further opinion that the most likely cause of the numbness and
tingling in the fingers of the plaintiff’s right hand is the aggravation of
pre-existing carpal nerve damage by a combination of physical activity and
emotional stress.

[197]     Counsel
for the plaintiff attacked these opinions of Dr. Kemble on the grounds that
nerve conduction studies done by Dr. Stewart on August 6, 2013 showed that
there had been no recurrence of carpal tunnel syndrome and that there was no
evidence of “significant axonal damage to the right C5 through C7 nerve roots”.
It was further noted that Dr. Salvian stated in his report (at page 21) that
negative nerve conduction studies would rule out any recurrence of carpal
tunnel syndrome.

[198]     The point
made by plaintiff’s counsel does not neutralize Dr. Kemble’s opinion. Dr.
Kemble is not saying that there has been a recurrence of carpal tunnel syndrome,
nor is he saying that there was “significant” nerve damage caused by the
plaintiff’s earlier condition of carpal tunnel syndrome. Moreover, he is a
competent neurologist with lengthy experience. It is therefore possible that a
minor degree of old nerve damage could be aggravated by a combination of
physical activity and emotional stress, so as to cause the ongoing numbness and
tingling in the plaintiff’s right hand. But Dr. Kemble did not express this
opinion with any significant degree of certainty.

[199]     Dr. Kemble
noted that the MRI scan had revealed “marked right foramenal stenosis impinging
the right C6 nerve root” (Page 8). Yet he does not explain why he disagrees
with the opinion expressed by Dr. Dommann (in fact he does not even repeat the
opinion given by Dr. Dommann following his review of the MRI scan). He seems to
adopt Dr. Connell’s opinion that there was no change in the pre-existing
cervical spinal degeneration after the accident (Page 9). But Dr. Kemble does
not say whether or not this fact has influenced his opinions.

[200]     In the
end, I accept Dr. Kemble’s opinion that the plaintiff’s ongoing symptoms of
pain in the right arm and numbness and tingling in the fingers of her right
hand were not caused by the injury she received in the motor vehicle accident.

[201]     However, I
also accept the following opinions of Dr. Kemble (my paraphrasing):

a)    The soft tissue injury
received by the plaintiff in the accident of September 3, 2010 continues to
have the potential to cause pain to the plaintiff.

b)    The plaintiff
will continue in the future to experience some symptoms of pain in her neck as
a result of her injury, from time to time, to the extent that she will likely
develop more cervical pain from repetitive physical activity than would have
been caused by her pre-existing conditions alone.

c)     The
plaintiff continues to be under emotional stress, mainly anxiety.

[202]    
I accept that, as an experienced physician, Dr. Kemble is qualified to
express an opinion as to whether or not a patient is under emotional stress.
But there are aspects of his opinions relating to stress that I am unable to
accept. I do accept his opinion that the plaintiff’s “emotional stress is
probably reducing her pain tolerance”, because that opinion is supported by the
opinion of Dr. Allison. But I am unable to accept Dr. Kemble’s opinions to the
effect that the plaintiff’s emotional stress is “perpetuating her cervical
pain”, and the plaintiff’s “anxiety has probably been the major factor
maintaining her symptoms”. With respect to Dr. Kemble’s opinion that the
plaintiff’s cervical pain will “significantly reduce with time as her general
level of stress is treated”, that seems to be consistent with Dr. Allison’s
opinions (in her March 27, 2014 report), but there is a difference. Dr. Allison
states that the plaintiff’s emotional distress would contribute both to her
perception of physical pain and to her cognitive complaints, but she also says:

 . . . there is no evidence in
this case that emotional distress is the only factor which is causing her
physical pain and there is no evidence that reduction of her emotional distress
will entirely alleviate her pain. . . . if her distress and her physical pain
could be ameliorated to a significant extent, then she would notice an
improvement in her cognitive abilities.

[203]     It seems
to me that Dr. Allison agrees that the plaintiff’s emotional distress is a
partial cause of the plaintiff’s ongoing physical pain and that psycho-therapy
could effectively reduce that emotional distress and thereby eliminate that partial
cause of the plaintiff’s ongoing pain. The main difference in these opinions of
Dr. Kemble and Dr. Allison is that Dr. Allison says that the plaintiff’s
emotional distress was caused by the motor vehicle accident, whereas Dr. Kemble
says that the plaintiff’s emotional distress was a pre-existing condition.

[204]     Dr.
Allison is qualified to give an expert opinion as to the cause of the
plaintiff’s emotional distress but Dr. Kemble is not so qualified. To the
extent that his opinions conflict with those of Dr. Allison, I would not accept
them.

[205]     However,
Dr. Allison’s opinion on causation is based in large part on her assumption
that the plaintiff had not experienced any significant emotional distress for
about two years before the motor vehicle accident. The plaintiff admitted in
cross-examination that she was suffering considerable emotional stress when she
saw Dr. Cheung on October 29, 2009 (from having to look after members of her
family). Obviously Dr. Allison was not aware of this significant episode of emotional
distress which was only about ten months before the accident. Knowledge of that
fact might well have affected Dr. Allison’s opinion on causation.

[206]     The
evidence established that, for a considerable period of time before the
accident occurred, the plaintiff had the difficult task of caring for her
elderly mother, who had developed dementia (which made it even harder to care
for her). The plaintiff seemed to acknowledge that this was very stressful for
her.

[207]     The
plaintiff’s mother died on September 29, 2011. Her daughter Deanna Smith,
testified that the death of the plaintiff’s mother, and the plaintiff’s
reaction to it, caused her mother to go into a deep depression. This event
occurred four months after Dr. Allison had assessed the plaintiff, and Dr. Allison
was not asked to give a further opinion based on that additional information.

[208]     As a
result, I am unable to accept Dr. Allison’s opinion that all of the emotional
distress that she detected in the plaintiff in May 2011 was caused by the motor
vehicle accident of September 3, 2010. Nor would I draw the inference that all
of the emotional distress that the plaintiff was obviously feeling when she was
examined by Dr. Kemble on October 28, 2013, was caused by the motor vehicle
accident. But I am satisfied that some of the emotional distress that the
plaintiff continues to experience, is being caused by the accident.

Summary of Conclusions on
Causation Issues

[209]     As
mentioned, I find that the motor vehicle accident of September 3, 2010 caused
injury to the soft tissues of the plaintiff’s neck and upper back and that the
injury was of moderate degree. As a result of this injury, the plaintiff
suffered pain in these areas and, for a limited period of time, suffered
headaches. I find that the injury did not aggravate or worsen the plaintiff’s
pre-existing physical conditions, but was super-imposed over them. There may
have been minimal injury to the soft tissues of the plaintiff’s lower back, but
if so, that injury had healed within six weeks of the accident.

[210]     The defence
accepts that the plaintiff continues to have symptoms of pain in her neck,
upper back and shoulders, but submits that these symptoms were no longer being
caused by her injury in the accident, after two years. The defence says that
these symptoms of physical pain were thereafter caused solely by the
plaintiff’s pre-existing conditions of chronic neck pain and cervical spine
degeneration.

[211]     The
medical evidence does not suggest that the plaintiff’s pre-existing conditions
made her more vulnerable or susceptible to injuries of the kind she received in
the motor vehicle accident. Nor does the medical evidence indicate that the
plaintiff’s pre-existing condition of spinal degeneration would have eventually
caused the pain symptoms (in the neck, upper back and shoulders) of which the
plaintiff now complains. There is no discussion of these issues in the medical
reports.

[212]     Both Dr.
Salvian and Dr. Kemble agree that the plaintiff is still suffering some neck,
upper back and shoulder pain as a result of the soft tissue injury she received
in the car accident. It is implicit in Dr. Salvian’s opinion that he says the
accident is still causing all of the pain that the plaintiff continues to
experience in the soft tissues of her neck, upper back and shoulders. I have
rejected that all-encompassing opinion. Dr. Kemble seems to say that most of
the soft tissue pain that the plaintiff continues to experience in her neck,
upper back and shoulders is being caused (intensified and perpetuated) by her
emotional distress (and he says that the emotional distress was a pre-existing
condition and was not caused by the accident). I have not accepted those
opinions of Dr. Kemble where they conflict with the opinions of Dr. Allison.

[213]     Both Dr.
Salvian and Dr. Kemble agree that the plaintiff will continue to suffer
physical symptoms as a result of her injury, for an indefinite period of time
into the future (although they differ as to the frequency and intensity of such
symptoms).

[214]     I accept
Dr. Kemble’s opinions to the extent previously identified. I find that some of
the plaintiff’s ongoing symptoms of pain in her neck, upper back and shoulders
are being caused by the injury from the accident. And I find that she will
continue to experience episodes of increased pain in the future, as a result of
her injury on September 3, 2010.

[215]     I find
that the plaintiff had a pre-existing condition of emotional distress which was
affecting her to some extent at the time of the accident. I find also that the
plaintiff’s experience of being involved in the motor vehicle accident, her
physical injury, and her emotional reaction to that injury caused additional
emotional distress to her. That emotional distress adversely affected the
plaintiff’s powers of concentration and memory for at least a year, and perhaps
longer. However, the effects of the plaintiff’s distress on her memory and
concentration was minimal (almost non-existent) by the end of May 2011 when she
was examined by Dr. Allison. The plaintiff was continuing to feel emotional
distress at the time of trial, and I find that some of that ongoing stress is
being caused by the accident of September 3, 2010.

What amount of damages should be awarded to the plaintiff for non-pecuniary
loss?

[216]     The
plaintiff sustained a whiplash – type injury to the soft tissues of her neck
and upper back as a result of the accident. The severity of this injury was
moderate in degree. She suffered an injury to the soft tissues of her lower
back, which was minor in degree, having resolved within six weeks of the
accident.

[217]     The injury
to the soft tissues of the plaintiff’s neck and upper back (the “neck injury”)
caused pain to the plaintiff in her neck, upper back and shoulder areas. I find
that this pain was fairly severe, and almost constant, for the first two weeks
after the accident, but had improved somewhat by that time. For those first two
weeks, the pain prevented the plaintiff from engaging in her usual physical
activities, to a substantial extent. The plaintiff suffered headaches as a
result of the neck injury which were not constant but which were significant for
at least a year following the accident.

[218]     The
plaintiff’s physical injury in the accident caused her to experience mental
pain in the form of emotional distress namely anxiety and depression, but
mainly anxiety.

[219]     The
plaintiff’s pre-existing physical conditions caused intermittent physical pain
episodes in her neck, upper back and shoulders (and her lower back), which were
triggered from time to time by increases in her physical activities. She also
had a pre-existing condition of emotional distress, mainly anxiety. Before the
accident, these episodes of physical and psychological pain were serious enough
to require the plaintiff to seek medical treatment from time to time. But these
episodes did not prevent the plaintiff from carrying on a very busy and active
life. She remained physically active, and she spent many hours planting and
tending a large garden, from spring to fall, each year. She attended basically
a full-time university program from 2003 up to the time of the accident.

[220]     After the
accident, the plaintiff attended and completed a university program for a
Master of Education degree from September 18, 2010 up to May 2012. Her injury
in the accident, and the effects of that injury, impaired the plaintiff’s
ability to engage in her former physical activities, and for at least several
months, her emotional distress significantly reduced her powers of
concentration and memory. But the plaintiff never missed a university class,
completed all work required by the program and achieved her Master’s degree, with
good marks. She did not take any medication for pain, because she did not
believe in it. She found physiotherapy to be unhelpful and only made four
visits. She found massage therapy and chiropractic treatment to be helpful, but
did not take any of those treatments, beyond March 2011. She never received any
treatment for her emotional distress (which was diagnosed in May 2011 and which
was clearly aggravated by the death of her mother on September 29, 2011).

[221]     I find
that the plaintiff had recovered from her physical injury to a substantial
degree, by the time of the trial. But she will be left with a permanent (but
minimal) residual disability as a result of that injury. On the occasions when
the plaintiff experiences episodes of pain in her neck as a result of fairly
vigorous or repetitive physical activity (due to her pre-existing conditions),
her pain will be increased as a result of the residual effect of her neck
injury.

[222]     The
plaintiff is still suffering, and will continue to suffer from emotional distress,
for an indefinite period of time into the future, unless and until it is
successfully treated. Part of that future emotional distress will be caused by
the physical injury sustained by the plaintiff in the accident.

[223]     The
plaintiff has testified that her condition (i.e., the effects of her injury)
has continued to deteriorate and has gotten worse, since the time of the
accident. There is no medical opinion which confirms this, and I am not
satisfied that this is true. In any event, I do not accept the plaintiff’s
belief that the worsening of her condition (if it exists) is caused by the
injury received in the accident. It is possible (based on Dr. Allison’s
opinion) that the plaintiff does perceive that her pain is worsening, and that
her perception is due to her emotional distress. But I am far from being persuaded
that the pain from the neck injury sustained by the plaintiff in the accident
has gotten progressively worse.

[224]     In June
2011, Dr. Allison recommended that the plaintiff undergo treatment for her
emotional distress by a registered psychologist. She has not done so, and I do
not recall any explanation she may have given for this failure to seek
treatment. She did testify that she could not afford to take the physiotherapy
treatments recommended by Dr. Harkness in 2013, and I infer that could also be
her explanation for failure to take psychological treatment. But this failure
is not of much significance, because the defendant has not pursued the defence
of failure to mitigate.

[225]     The plaintiff
has not yet worked since acquiring her master’s degree in May 2012. She is
determined to embark on a career of marriage counselling (as a private
business, with partners). With the plaintiff’s work and academic history, there
is a strong likelihood that she will establish such a career. However, the
plaintiff alleges that she will only be able to work about half time, and that
her inability to work full time is due to the neck injury she received in the
accident, and the ongoing effects of that injury.

[226]     The
plaintiff was almost 70 years of age at the time of the trial. She has had a
pre-existing condition of neck pain since 1999, which has been symptomatic on
an intermittent basis. She has now developed a significant functional problem
with the use of her right hand which I have found was not caused by the neck
injury in the accident. Even accepting the plaintiff’s belief that she can only
work half time as a counsellor at the present time, I am not satisfied that
such reduced working capacity can be attributed to the neck injury she received
in the accident.

[227]     In all of
the circumstances, I conclude that the plaintiff has suffered a considerable
amount of compensable pain and suffering and loss of enjoyment of life up to
the time of trial and that she will continue to experience some of these
effects in the future. She must be fairly compensated for the substantial
non-pecuniary loss that she has sustained and will continue to sustain, as a
result of her neck injury. Counsel for the plaintiff cited Stapley v.
Hejslet 2006 BCCA 34 at para. 46 which sets out a list of the factors that
trial judges should consider when deciding the amount of an award for
non-pecuniary damages. These factors have become well known and I need not
repeat them.

[228]     With
respect to one of the factors, the age of the plaintiff, counsel for the
plaintiff suggested that elderly plaintiffs might have fewer years to live with
pain and disability but that this interference with the limited time left to
live could also be seen as being more serious (although not as long-lasting). I
do not accept this as being an established principle in awarding damages.
Moreover, the case cited in support by counsel for the plaintiff (Eton v.
Loblaw Companies Ltd. 2010 BCSC 1865 at para. 66), appears to have involved
a “substantial impairment” of the plaintiff. I have found that the injury
sustained in the accident of September 3, 2010 has not left the plaintiff with
any substantial impairment.

[229]     Counsel
for the plaintiff also cited a number of cases in support of his submission
that the plaintiff should be awarded non-pecuniary damages in the range of
$100,000 to $125,000. But in most of those cases, the plaintiff was found to
have been suffering from thoracic outlet syndrome and in some cases the
injuries were clearly more serious than the plaintiff’s injuries.

[230]     I do find
that the plaintiff has demonstrated a significant measure of stoicism, in
pressing on with, and completing her Master of Education degree, in the face of
significant difficulties that were caused or contributed to by her injury in the
car accident.

[231]     Counsel
for the defendant reviewed a number of case authorities in support of his
position that a fit award for damages for non-pecuniary loss would be $50,000.

[232]    
I do not intend to review the cases referred to by counsel. There will
always be significant differences between the case at bar and
previously-decided cases, even when significant similarities may exist. As I
said in a previous case (Schafer v. Whitley 2013 BCSC 225, at para. 196):

. . . No two plaintiffs will ever
be the same in age, previous state of strength and health, occupation and other
activities. The injuries sustained by one plaintiff will never be the same as
those incurred by another, in kind or severity, and the reaction of any two persons
to the pain of a similar injury or to a particular treatment will rarely be the
same. Other differences can include the apparent length of the recovery period
and, if the plaintiff has not recovered, the kind and extent of residual
effects remaining from the injury at the time of trial and whether any of the
effects will be permanent.

[233]     In all of
the circumstances, it is my opinion that a fair and reasonable amount of
damages for non-pecuniary loss would be $70,000, and I order that the plaintiff
be awarded that amount.

What amount of damages, if any, should be awarded for past-wage loss?

[234]     Counsel
for the plaintiff concedes that the plaintiff cannot claim past wage loss for
the period from September 18, 2010 until May 2012, while she was engaged full
time in her master’s degree university program. But counsel submits that the
injury sustained by the plaintiff on September 3, 2010 prevented her from
seeking full time work in the counselling field from May 2012 onward. It is also
said that the injury deprived the plaintiff of the opportunity to seek
employment as a program co-ordinator.

[235]     The
evidence establishes that a position as program co-ordinator became available
at Nanaimo Family Life Association in late 2013, that the plaintiff would have
been an eligible candidate for the position if she had applied, and that the
plaintiff did not apply for that position because she felt unable to work full
time. The position was for a term of one-year (with the possibility for
renewal) and the pay was $25 per hour for a 30 hour work week. The job was
posted in late November 2013 and applications were accepted until December 23,
2013. The successful candidate started work in January 2014.

[236]     Plaintiff’s
counsel submits that the plaintiff should be compensated for her loss of
opportunity to obtain the position with Nanaimo Family Life Association. It
seems also to be implicitly submitted that the plaintiff should be compensated
for loss of capacity to work full time, from May 2012 up to the time of trial.
Counsel suggested that an award of $20,000 to $30,000 would be appropriate for
this loss.

[237]     Counsel
for the defendant argued that the only loss that could be claimed by the
plaintiff was loss of the opportunity to be interviewed for the position for
which Kathy Holmes was hired. But defence counsel’s first position was that no
award was justified, because any inability to work on the part of the plaintiff
from May 2012 onward, was not caused by her neck injury in the accident.
Counsel further argued that the plaintiff’s failure to establish a private
practice as a counsellor, within a reasonable time after failing to obtain work
with the government, was due to the plaintiff’s own impecuniosity (by her own
admission) and could not be attributed to the defendant. (Counsel for the plaintiff
did not contest the existence of that principle.)

[238]     I find
that the defendant’s position has merit. In my opinion, the evidence does not
establish a substantial possibility that, if the plaintiff had not been injured
on September 3, 2010, she would have earned income from employment between May
2012 and the time of trial. Accordingly, I make no award for past loss of
income or for past loss of earning capacity.

Should any award of damages be made for loss
of future earning capacity, and if so, in what amount?

[239]     Counsel
for the plaintiff submitted that the evidence supported the inference that the
plaintiff will work in her chosen career as counsellor, until she is 80 years
of age but she will only be able to work half time, because of her injury.
Counsel submits that, on the evidence, it would take the plaintiff five years
to build a practice, during which time she would earn about $20,000 per year
working half time. It is said that her loss due to the injury sustained in the
accident is therefore $100,000 for the first five years. On the plaintiff’s
evidence it is suggested that, after five years, she would earn $60,000 per
year if working full time, so that in the following five years her loss would
be about $150,000 (i.e. 5 years x $30,000 per year). Using this arithmetical
approach, and allowing a discount for present value, counsel for the plaintiff
projects a potential future loss in excess of $200,000. But in view of the
uncertainties involved, and the expectation that the plaintiff might not have
worked full time until she was 80, even absent her injury in the motor vehicle
accident, counsel submits that the plaintiff’s loss should be calculated using
the “capital asset” approach. An award in the range of $140,000 to $280,000 is
suggested.

[240]    
The factors to be considered in determining the amount that should be
awarded for a plaintiff’s loss of future earning capacity (using the capital
asset method) are those that were set out in Brown v. Golaiy, (1985) 26
B.C.L.R. (3d) 353, at para. 8 (S.C.), which are the following:

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

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

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

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

[241]     Based on
an assessment of these factors, counsel for the plaintiff seems to suggest an
award in the range of $200,000 for loss of future earning capacity.

[242]     Counsel
for the defendant argued that no award should be made because the plaintiff had
failed to establish a substantial possibility that the disabling effects of her
injury in the motor vehicle accident would continue into the indefinite future.
It was further argued (I think in the alternative) that the evidence does not
establish a substantial possibility that the lingering effects of the
plaintiff’s injury (if any) will in the future prevent her from working full
time in the sedentary profession of a counsellor. Defence counsel pointed out
that the plaintiff’s working capacity as a counsellor is unknown, since she has
never yet worked in that profession (aside from volunteering at Nanaimo Family
Life Association for about two hours per week). It was said that the
plaintiff’s history of completing a two-year master’s degree program strongly
indicated that she could have performed the work required of a counsellor, full
time, up until late May 2012, when her right arm and hand symptoms became
seriously debilitating. Counsel submitted (and I have found) that these
debilitating symptoms were not caused by the injury received by the plaintiff
in the accident. I think it should also be noted that, by the time the
plaintiff saw Dr. Kemble in October 2013, arthritis in her right hand had
become a significant, additional problem for her, at least on an intermittent
basis.

[243]     In the
further alternative, defence counsel seemed to argue that the plaintiff had
failed to justify any (or any significant) award based on the capital asset
approach. Reference was made to Kim v. Morier 2014 BCCA 63 and Roberts
v. Kidd (1998), 52 B.C.L.R. (3d) 326, where the Court of Appeal stated that
the plaintiff’s own perception of her diminished value as a person capable of
earning income was not sufficient to trigger the fourth factor in Brown v.
Golaiy. Counsel stated that the only evidence of the plaintiff’s incapacity
to do the work required of a counsellor was her own evidence to the effect that
she does not think she can work full time. It was pointed out that no
functional capacity evaluation was ever performed (as was recommended by Dr.
Salvian). Defence counsel argued, in effect, that the plaintiff was not even
considering any career other than counselling in private practice so that none
of the first three factors could even apply to her.

[244]    
Both counsel referred the court to the leading authorities on this issue,
including Perren v. Lalari 2010 BCCA 140. I extract the following
principles from para. 32 of that judgment:

A plaintiff must always
prove, . . .  that there is a real and substantial possibility of a future
event leading to an income loss. If the plaintiff discharges that burden of
proof, then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings approach
. . . or a capital asset approach . . . . The former approach will be more
useful when the loss is more easily measurable, . . . . The latter approach
will be more useful when the loss is not as easily measurable . . . .

[245]     The court in
Perren v. Lalari stated (at para. 30) that mere speculation will
not amount to a real and substantial possibility and that it is loss of earning
capacity (not loss of earnings) for which compensation must be made.

[246]     In my
opinion, the facts that I have found do not support the inference that, by
reason of the ongoing effects of her injury, the plaintiff will not in future
be capable of working full time as a counsellor. If she is (or becomes)
disabled from working full time, such disability will likely be caused by her
pre-existing conditions or subsequently developed conditions (i.e., arthritis
in her right hand). The plaintiff has failed to establish a substantial
possibility that her injury on September 3, 2010 will have this future effect.
But that does not necessarily mean that the plaintiff will not incur a loss of
income in the future, due to the ongoing effects of her injury.

[247]     I have
found that the plaintiff’s pre-existing conditions (physical and psychological)
are not responsible for all of her present symptoms. But I have also found that
her symptoms (including the residual symptoms from the injury in the accident)
will continue for an indefinite period of time in the future. Having made those
findings, I think I must conclude that the plaintiff has established a significant
possibility that she will incur a loss of income in the future as a result of
the continuing symptoms from the injury she sustained in the accident. The
issue is whether this possibility is a substantial possibility.

[248]     The
plaintiff’s evidence, coupled with the opinion of Dr. Kemble which I have
accepted, establishes a possibility that her residual symptoms from the injury
will cause her to take time off work in the future, and thus suffer a loss of
income. The work of a counsellor is a sedentary occupation, and does not involve
the physical activity that, according to Dr. Kemble, would be required to bring
the residual physical symptom into play. But the plaintiff’s regular activities
of housekeeping and gardening, even reduced as they now are, can cause physical
pain. If that occurs, then the pain will likely be increased by the residual
effect of her injury (see Dr. Kemble’s opinion). Moreover, I have found that
the plaintiff continues to suffer emotional distress, some of which continues
to be caused by the accident. That emotional distress could increase her
perception of the intensity of the pain she continues to experience (whether
caused by her pre-existing conditions or by the residual symptoms from her
injury, or by both).

[249]     In my
opinion, the plaintiff has established a substantial possibility that the
residual effect of her injury will cause an income loss to her in the future.
The possibility that exists, in my view, goes beyond the theoretical and
speculative.

[250]     The next
step is to determine whether the arithmetical approach or the capital asset
approach should be used to quantify the potential loss of the plaintiff. I
agree with plaintiff’s counsel that, in view of the many uncertainties that
exist here, the capital asset approach should be used. That approach requires a
trial judge to assess the value of the extent to which the plaintiff’s capacity
to earn income in the future has been diminished by the injury caused by the
defendant, by considering the four factors established in Brown v. Golaiy (and
affirmed in Perren v. Lalari). A trial judge must attach weight to such
of those factors that are found to apply to the particular case before the
court.

[251]     I am not
persuaded that the residual symptoms from the plaintiff’s injury are sufficient
to trigger the application of any of the four factors, except the fourth factor.
At this stage in her life, the plaintiff is considering employment in only one
career, and that is counselling. She has no intention of working for someone
else, and plans to commence a private practice in partnership with two other
persons. There is no evidence that her residual symptoms have deprived the
plaintiff of the ability to seek other job opportunities. I find that the
plaintiff probably perceives herself as being less valuable to herself as a person
capable of earning income. Although she did not testify directly to that fact, I
would draw that inference from her overall testimony on this issue. But the
authorities establish that a plaintiff’s own perception of a diminished value
is not sufficient. I think the question is whether there is evidence which
provides objective support for the plaintiff’s belief. From all of the
evidence, I am satisfied that the residual symptoms from her injury have made
the plaintiff less valuable to herself as a person capable of earning an
income.

[252]     It follows
that there should be an award for loss of future income capacity. But in my
opinion, the award should be minimal, because the chance that a compensable
loss of income will occur is very small, as is the chance that any period of
disability would be lengthy. I award $10,000 for this loss.

Should any specific awards be made for loss of
housekeeping capacity or loss of gardening capacity?

[253]     I have
described the adverse effects of the plaintiff’s injury on her ability to do
housekeeping and gardening work. Those effects had diminished by the time of
trial, and the main interference with her abilities in these respects was by
then from her pre-existing conditions of cervical spine degeneration and chronic
neck pain.

[254]     Counsel
for the plaintiff submits that awards of $25,000 each for loss of gardening
capacity and loss of housekeeping capacity should be considered. Defence
counsel submits that no award is justified under either category.

[255]     Relying on
Dr. Kemble’s opinion, I find that the plaintiff’s gardening work (and some of
the house work) is fairly strenuous physical activity which will continue to
cause pain symptoms due to her pre-existing conditions, and that the residual
effect of her injury in the motor vehicle accident may, from time to time,
increase the amount of that pain. The plaintiff has of course reduced the
amount of gardening and housekeeping work that she does, and her daughters have
taken over much of the work. I infer that the occasions on which the plaintiff
will push herself too far and trigger significant pain from these activities, will
be infrequent.

[256]     I have
taken these matters into account in making the award of damages for
non-pecuniary loss. In my opinion, there should be no additional, specific
award made under either of these categories.

What award, if any, should be made for the cost of
future care?

[257]     Dr.
Allison found that the plaintiff was experiencing considerable emotional
distress in May 2011, and attributed all of that emotional distress to the
injury she received in the motor vehicle accident of September 3, 2010. I have
found that the plaintiff had a pre-existing condition of emotional distress,
but that additional emotional stress was caused (and continues to be caused) by
her injury in the accident (and her reaction to that injury).

[258]     Dr.
Allison recommended that the plaintiff should undergo treatment by a registered
psychologist for her emotional distress, and opined that reduction of the
stress would also reduce the intensity of pain being perceived by the
plaintiff. The plaintiff has never undergone psychological treatment. No
evidence was given to establish how many treatments would be required, how long
each treatment would take and what the cost of each treatment would be. In view
of the long-standing nature of the plaintiff’s emotional condition, I infer
that the treatment would take considerable time and expense. Counsel for the
plaintiff has suggested $5,000 as an estimate of the cost for any kinds of future
care that may be required. In view of my findings, this seems a modest and
reasonable amount, having regard to the requirement for psychological
treatment.

[259]     Accordingly,
I award $5,000 for the cost of the plaintiff’s future care.

Special Damages

[260]     The
parties have agreed that special damages in the amount of $1,152.97 should be
awarded, and I so order.

Summary

[261]     I
summarize the categories under which damages have been claimed and the amounts
that I have awarded to the plaintiff:

Costs

[262]     Unless
there are facts of which I am not aware which would be relevant to the issue of
costs, it would appear that the plaintiff should have her costs at the usual
scale. If there is a dispute about costs which the parties cannot settle, a
hearing of the issue by way of written submissions may be arranged by
contacting the trial scheduling manager.

“Mr. Justice Halfyard”