IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140820

Docket: 143362

Registry:
New Westminster

Between:

Haleh Amini

Plaintiff

And

Jescel Mondragaon
and

A Jetway Autobody
Repair Ltd.

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
The plaintiff, Ms. Haleh Amini, claims damages for injuries sustained in
a rear-end collision which occurred February 23, 2011 (the “Accident”).

[2]            
Liability is admitted. The issue between the parties is the quantum of
damages to which the plaintiff is entitled.

The Accident

[3]            
Ms. Amini was stopped at a traffic light near the Kensington exit from
the TransCanada Highway when struck from behind by the defendant’s vehicle. The
impact caused extensive damage to her vehicle.

[4]            
She testified she was watching in the rear view mirror, anticipating the
collision and gripping the steering wheel. She said she was jolted forward and
back by the impact.

[5]            
She called 911 and an ambulance and the police attended the scene but,
after recovering from the initial shock of the collision, she was able to
continue driving and attended work that day.

[6]            
The damage estimate to repair the defendant’s 2008 Acura TL as a result
of the Accident was $7,544.86 and the damage estimate to repair the plaintiff’s
2006 Chevrolet Equinox was $1,034.02.

Background

[7]            
Ms. Amini was born in Iran in 1967 and moved to Canada in 1994 and
now resides in Surrey with her husband and two children, aged seven and 16.

[8]            
She was 44 years of age at the time of the Accident and at the time of
trial was 47 years old.

[9]            
She obtained her bachelor’s degree in Nursing in Iran and upon arriving
in Canada took a nursing refresher course and then obtained her Master’s degree
in Nursing from the University of British Columbia.

[10]        
She is now employed (and was at the time of the Accident) as a Nursing Instructor
at Langara College (the “College”).

[11]        
Ms. Amini described her life before the Accident as being an active one.
She testified she jogged (twice a week), biked (once a week), went on outings,
had skied during a Christmas 2010 vacation, and had an active social life with
friends and family. She said she also regularly cooked for her family and was
responsible for almost all the household chores and did most of the grocery
shopping.

[12]        
Ms. Amini described her health prior to the Accident as good. She had
one prior motor vehicle accident in 1995/96 but said she had not been injured.

Ms. Amini after the Accident

[13]        
Ms. Amini testified she initially felt stiff “all over her body”
and a “little shaky” after the Accident. The following morning she said the
pain in her neck had increased. She attended Dr. Jay Martens, her family doctor,
who recommended rest, massage therapy, and pain medication.

[14]        
Ms. Amini testified that over the next short period of time the pain in
her neck spread to her right shoulder and upper back and she started to have
headaches. She sought massage therapy.

[15]        
She testified she started to have mild headaches about one month after
the Accident and that she assumed they would go away but they did not and
gradually increased in intensity.

[16]        
She testified the pain in her right shoulder also started as a mild pain
but by a month after the Accident had become severe and she could not move her
arm much.

[17]        
She said her injuries limited her ability to do housework which, since
the Accident, was done mostly by her husband and daughter. She also testified
her mood changed and she has become moody and depressed because of her ongoing
pain.

[18]        
By about a year after the Accident in the summer of 2012 she testified
she was having severe headaches, at times on a scale of 8 or 9/10 but that her
shoulder pain had eased.

[19]        
In the late spring of 2013 Ms. Amini testified she was required to
recertify her CPR qualification and to do so she had to apply compression to
dummies. She said she “did a lot of compressions” and that her right shoulder,
which she had tried not to use, became more and more sore, her pain increased
and she experienced dizziness.

[20]        
She attended the Emergency Department at the Surrey Memorial Hospital
thinking she had symptoms of stroke but was assured she did not.

[21]        
Ms. Amini testified she has tried different treatments to relieve the
pain in her neck and shoulders and her headaches.

[22]        
Dr. Martens tried various medications without success. She has had bouts
of physiotherapy and several of massage therapy which have provided but
temporary relief.

[23]        
A Magnetic Resonance Imaging scan (“MRI”) done September 6, 2011 showed
a small degree of tendinosis/tendinopathy of the right supraspinatus in her
right shoulder and a mild disc bulge at C5/6.

[24]        
The neurologist recommended Botox injections for the relief of headache
pain. She had two injections, which provided temporary relief for four weeks,
but she said the headaches then returned and were as severe as they had been before
the injections.

[25]        
As at the time of the trial Ms. Amini testified she had ongoing pain in
the right side of her neck and upper back and ongoing headaches. Her shoulder still
causes her some pain, particularly when she tries to do exercises. She said the
pain in her neck and shoulders fluctuates depending on her activities and she
had “good days and bad days”.

[26]        
In July and August of 2013 she took a medical leave of absence from work
which was authorized by Dr. Martens on July 10, 2013 as a result of her ongoing
pain from the Accident.  The medical leave followed the incident earlier in the
spring of that year when the plaintiff experienced increased pain in her neck
and shoulders as a result of extending herself during her CPR certification.  She
used time from her sick bank to cover her wages and during her absence,
travelled to Iran with her family to visit family.

[27]        
Ms. Amini testified there had been a major shift in household
responsibilities since the Accident: that her husband and daughter had assumed most
of the housecleaning, cooking and shopping.

[28]        
She testified her husband now does the vacuuming, mops the floor and does
the laundry and dishes. Their elder daughter does much of the cooking and looks
after their younger son.

[29]        
Ms. Amini testified she felt her relationship with her husband had been
affected by her injuries. They now sleep in separate bedrooms because she is
restless at night. They have intimate relations much less frequently and she
says she feels guilty because of this. She also feels her relationship with her
children has been negatively impacted as she is not as available to them.

[30]        
Ms. Amini testified she can manage her functions at work as her job does
not involve heavy lifting. If she is instructing students how to do such tasks
as lifting patients, which is a regular part of her instructional duties, she
has someone else help as she can’t lift heavy weight with her right arm.

Ms. Amini’s Employment

[31]        
Ms. Amini is employed as a full-time regular Nurse Instructor at the
College. She works three terms per year. The first two terms are instructional
terms during which she teaches for eight hours Monday to Wednesday. On
Thursdays she attends a morning meeting and the balance of the week she spends
preparing for the following week’s instructional duties and related matters.

[32]        
The third term in the fall is divided into equal parts vacation time and
non-instructional time. During the non-instructional time she is expected to
prepare for classes to be taught in the next term, revise course content,
attend meetings, etc. Instructors are free during the third term to take other
employment should they choose.

[33]        
Ms. Amini was employed as a Casual Nurse by the Fraser Health Authority (“FHA”)
during the third term between 2007 and 2009. As a Casual Nurse she was able to
pick and choose the days she worked. She generally worked one or two days a
week. She testified she did not want to work more hours than she did. She earned
$30 to $40 per hour and testified she could earn between $3,000 and $8,000 per
year as a Casual Nurse. When she worked she treated patients in their homes,
changing dressings, doing assessments, etc.

[34]        
In cross-examination Ms. Amini agreed she had voluntarily resigned from
her position as a Casual Home Care Nurse with FHA in September 2009.

[35]        
Ms. Amini testified that at some stage in the future she would like to
return to casual nursing work but is concerned that she will not be able to
perform tasks such as lifting or moving patients. She is also concerned that if
her pain gets worse she may not be able to continue in her position as a Nursing
Instructor at the College.

[36]        
Ms. Amini’s earnings from employment for the years 2009 to 2012 were
respectively $81,311; $87,704; $86,862; and $86,957.

Mr. Banaederakhshan (referred to as Mr. Derakhsan)

[37]        
Mr. Derakhsan testified he and Ms. Amini have been married 21 years. He
operated a carpet cleaning and restoration business which she had helped
establish when they initially moved to Surrey.

[38]        
He testified that prior to the Accident the plaintiff was a busy active
person: that they jogged twice a week and regularly biked and walked together
and the plaintiff would sometimes bike and play tennis with their daughter. He
testified her health was good and that she had a calm, relaxed demeanour about
her.

[39]        
He testified since the Accident she did not engage in her prior physical
activities except for walking short distances.

[40]        
He testified Ms. Amini’s participation in household chores had been very
limited subsequent to the Accident: that since then he has done most of those
chores, particularly those involving heavier work or lifting. He testified her
disposition had also changed from being generally happy and positive to being
“grumpy” and complaining. He also testified to the decline in their intimacy
since the Accident.

[41]        
He recalled that she had “collapsed” in 2013; that she “could not
function at all”; and that she had attended her doctor and the doctor had
suggested she take time off. He agreed the family had gone to Iran for five
weeks in July – August 2013.

Douglas Yochim

[42]        
Mr. Yochim is a Senior Nursing Instructor who worked at the College with
the Plaintiff.

[43]        
Mr. Yochim testified prior to the Accident she was a person with a
“bubbly” personality, who was active in the Nursing Instructor program and that
she appeared to be quite a fit person.

[44]        
He testified that since the Accident Ms. Amini’s affect had changed: she
appeared to be less engaged, she did not talk as much and he noticed that she grimaced
and shifted in her position when she was sitting and that she rubbed her right
arm. He testified he noticed she tended to use her left arm for most tasks. He
testified she looked tired, seemed to lack energy much of the time and did not
volunteer for or participate in committee work as she had prior to the Accident.
He testified from his perspective she was “not the same person” she had been
before the Accident.

[45]        
Mr. Yochim testified he worked at St. Paul’s Hospital as a casual staff
member from 2005 to 2013 during the third semester when he was not teaching to
earn additional money to put towards his retirement. He testified he worked 3
days a week for 6 weeks, was paid $50 an hour, which was the top Nurse’s rate,
and that he earned an additional $12,000 to $14,000 annually.

[46]        
In cross-examination Mr. Yochim agreed he taught at a different hospital
than Ms. Amini for three days of the week and he did not see her except for the
occasional meeting on a Thursday or Friday. He said he did talk to the
plaintiff about the effects of the Accident and she told him she had chronic
pain in her right shoulder, headaches and difficulty sleeping after the
Accident.

Medical Evidence

Dr. Jay Martens

[47]        
Dr. Martens has been Ms. Amini’s family physician since 2004. He
prepared a medical legal report dated February 3, 2014 and was cross-examined
at trial.

[48]        
In his report Dr. Martens outlined Ms. Amini’s course of treatment
following the Accident. He said she saw him the day after the Accident with
complaints of an immediate pain in the back of her neck which had stiffened
overnight. She was complaining of “a lot” of pain in her right shoulder and
arm. He noted spasm in her right trapezius muscle and prescribed ibuprofen and
massage therapy. He again saw her ten days later with continuing pain in the
right shoulder and neck. Three weeks later he noted her symptoms had worsened
and she had pain down her right arm and pain on extension to her right
shoulder.

[49]        
When he saw her April 21, 2011 he noted her symptoms continued to
worsen: that her right shoulder range of motion was decreasing and he suspected
a rotator cuff injury or adhesive capsulitis. He advised her to continue
physiotherapy and massage therapy and had an MRI done which showed no rotator
cuff tear, but did show a small degree of tendinosis of her right
supraspinatus.

[50]        
Dr. Martens noted when he saw her on March 8, 2012 Ms. Amini complained
of headache symptoms starting at the back of her neck and radiating into her
temporal regions. He referred her to Dr. Mohammad Nagaria, a physician with a
speciality in neurology.

[51]        
Ms. Amini testified that although she had headaches for some time prior
to making the complaint in March 2012, she did not mention them to Dr. Martens
in previous appointments because he had a one-visit-one-complaint policy and
she had other symptoms following the Accident that were of more concern to her.

[52]        
Dr. Martens noted Ms. Amini did not see him between November 30, 2012
and May 31, 2013. On July 10, 2013 he wrote in his clinical notes that he felt an
extended absence from work would be the “best therapy course for her right now”
and filled out a short term disability request from July 5, 2013 to September
3, 2013.

[53]        
Dr. Martens noted that when he next saw her on September 5, 2013 “she
had improved greatly and reported only minimal discomfort in her neck and
shoulder.”

[54]        
In his medical legal report he opined:

Discussion: It is apparent to me that Ms. Amini did
suffer an injury as a result of her MVA on Feb. 24, 2011. Given her clinical
presentation, the primary injury sustained would most accurately be diagnosed
as acute trauma to the soft tissues of the [right] shoulder and neck followed
by a chronic muscle tension syndrome in these regions. Secondary diagnoses that
arose as a result of the primary diagnosis would include adhesive capsulitis of
the [right] shoulder and mild rotator cuff tendinopathy of the [right] shoulder
as evidenced by clinical examination and MR imaging. Ms. Amini’s condition did
cause a significant degree of frustration and distress, enough to warrant sleep
medication and consideration of treatment for her depressed mood. Initially she
remained at work but finally took some disability time in 2013 and returned
much improved. My opinion is that this rest period was vital in facilitating
her recovery.

Concerning Ms. Amini’s headaches,
she did not initially report these symptoms as a chief complaint until 1 year
after the date of the accident. My opinion is that they are tension related
headaches. Compensation of one muscle group for another injured muscle group is
a well-described phenomenon, as are symptoms of injuries that appear after the
fact due to distracting injuries. While it is plausible that this is what
occurred, I cannot make a claim with all certainty that her headaches were an
MVA-related injury.

[55]        
In cross-examination Dr. Martens agreed he filled out a CL19 form for the
Insurance Corporation of British Columbia on November 7, 2011 in which he noted
she had a Grade 2 soft tissue injury to the right side of her cervical and
thoracic spine with “mild pain and stiffness in [right] shoulder [and] neck”,
as well as “tendinosis/tendinopathy in [right] shoulder”, and that she
continued to require physiotherapy and massage therapy. He agreed she had not
mentioned problems with headaches until a March 8, 2012 visit. Dr. Martens
agreed Ms. Amini told him she was going to Iran during her leave of absence
from work, but said he had encouraged her to take time off from work and travel.
He agreed with the suggestion that her health as a whole (including a lump on
her breast and possible cancer) at the time was causing her stress.

[56]        
He agreed he noted in his clinical note of July 12, 2012 Ms. Amini was
“much improved”, although she still had tension and spasm in her right shoulder
and required further therapy. He testified the words “much improved” were the
words Mr. Amini used to describe her condition to him and were an accurate
reflection of his own observations of her on that day.  He also agreed that in
in his note of September 5, 2013 he wrote “she has essentially fully recovered.
Minimal discomfort and dysfunction in neck and shoulders. She is doing very
well.” This note was written shortly after Ms. Amini had returned from her visit
to Iran.

Dr. Cecil Hershler

[57]        
Dr. Hershler is a specialist in physical medicine and rehabilitation. He
based his opinion on an interview and assessment done on September 19, 2013 at
the request of the plaintiff’s counsel.

[58]        
Dr. Hershler provided a medical legal report dated September 24, 2013
and was cross-examined at trial.

[59]        
He noted that at the time he saw her, Ms. Amini was complaining of
constant pain on the right side of the head, right side of the neck and across
the right shoulder into the upper part of her arm. She told him she rated the
pain at 3 to 4/10 with 10 being intolerable pain.

[60]        
Dr. Hershler opined the following injuries were caused by the Accident:

1.     Injury to
the C5/6 disc – A disc bulge has been documented on MRI. Deep palpation on the
right side of the spine close to the disc bulge caused a pain response. It is
likely that this disc bulge is symptomatic and that certain movements and
loading of the spine causes pain which, in turn, causes the muscle in the
region to tighten up. This leads, in turn, to cervicogenic headaches. It
also refers pain across the right shoulder.

2.     Injury to
supraspinatus tendon – This is consistent with Ms. Amini’s inability to move
the right arm through full ranges and, in particular, her inability to abduct
the right arm in the frontal plane. It is also consistent with the location of
the pain response on palpation. This, in turn, refers pain into the adjacent
shoulder muscles.

[Emphasis added.]

[61]        
He opined that the Accident either caused Ms. Amini’s injuries or
“aggravated pre-existing anatomical changes and rendered them symptomatic.”

[62]        
Dr. Hershler was concerned with Ms. Amini’s prognosis, noting it had
been 2-and-a-half years since the Accident with no improvement, which he
described as an “ominous sign”.

[63]        
He “strongly” recommended Ms. Amini be put on the Medical Marijuana
Program to allow her to work on a range of motion and strengthening exercises. He
recommended 10 grams per day in the form of a topical ointment to be applied to
the area being treated to be used for a period of six months. He estimated the
cost to be roughly $9,000 depending upon the supplier.

[64]        
In cross-examination Dr. Hershler agreed at the time he saw Ms. Amini he
had not reviewed any other medical records relating to her, but testified that
he had reviewed such records prior to preparing his opinion. He acknowledged he
had received a copy of Dr. Rehan Dost’s neurological report and a further
report from Ms. Amini’s family physician in March 2014.

[65]        
Dr. Hershler was cross-examined on several entries in Dr. Martens’
clinical records to the effect Ms. Amini had reported she was feeling better or
that her injuries had resolved in or about September 2013. He responded such
entries did not surprise him as she told him there were times she feels better
and then her pain returns.

[66]        
Counsel for the defendant cross-examined Dr. Hershler on the “International
Classification of Headache Disorders”, 3rd edition, a publication of the International
Headache Society, 2013, in which subtypes of headaches were described. Under
that subtype “Headache attributed to trauma or injury to the head and/or neck”,
the authors note:

… their diagnosis is largely dependent on the close
temporal relation between the trauma or injury and headache onset.
Consistently with those of [International Classification of Headache Disorders,
2nd edition], the diagnostic criteria of [International Classification of
Headache Disorders, 3rd edition] for all subtypes require that headache must
be reported to have developed within 7 days of trauma or injury, or within 7
days after regaining consciousness and/or the ability to sense and report pain
when these have been lost following trauma or injury. Although this 7-day
interval is somewhat arbitrary, and although some experts argue that headache
may develop after a longer interval in a minority of patients, there is not
enough evidence at this time to change this requirement.

Headache may occur as an isolated symptom following trauma or
injury or as one of a constellation of symptoms, commonly including dizziness,
fatigue reduced ability to concentrate, psychomotor slowing, mild memory
problems, insomnia, anxiety, personality changes and irritability. When several
of these symptoms follow head injury, the patient may be considered to have a
post-concussion syndrome.

[Emphasis added.]

[67]        
Dr. Hershler testified he was one of those experts who was of the view that
headaches could occur from trauma after a longer interval than contained in the
above publication.

Dr. Mohammad Nagaria

[68]        
Dr. Nagaria is a neurologist with a specialty in movement disorder,
headaches, epilepsy and sleep disorders. Ms. Amini was referred to Dr. Nagaria
by her family physician, Dr. Martens. Dr. Nagaria saw Ms. Amini on seven
occasions between March 30, 2012 and February 7, 2014.

[69]        
Dr. Nagaria’s medical legal opinion was dated February 7, 2014. He was
cross-examined at trial.

[70]        
It was his opinion that

her history and examination is
consistent with a diagnosis of chronic post-traumatic headache or
post-traumatic concussion syndrome related to neck injury (whiplash) sustained
in the [Accident].

[71]        
Dr. Nagaria was of the view her headache and neck pain “could possibly
improve” with Botox injections. He recommended she have at least four such
treatments at a cost of $200 – $250 per treatment before he would be able to
evaluate her long term responsiveness to the treatment.

[72]        
In his prognosis he wrote:

It has now been almost three
years since the motor vehicle accident and therefore it is likely that her
headache symptoms will continue for the next 1 – 3 years, however, I believe
that there will be gradual improvements allowing her to be more active and less
restricted.

[73]        
In cross-examination Dr. Nagaria testified the plaintiff told him her
headaches increased when she was at work because of required neck movements.

[74]        
Dr. Nagaria agreed it was often difficult to determine the cause of ongoing
headaches. He said the history of when the headaches commenced is “key” to
attributing cause. Dr. Nagaria agreed Ms. Amini had told him she had
experienced “mild” headaches associated with her neck pain from the date of the
Accident.

[75]        
He agreed that after he saw her July 13, 2012 he had diagnosed her in a letter
to Blue Cross written September 18, 2012 as having had “chronic migraines for
over 2 years” when he recommended Botox treatments. He also agreed that in his
consulting report to Dr. Martens he had attributed the plaintiff’s headaches to
“migraine headaches”.

 Dr. Rehan Dost

[76]        
The defendant called Dr. Rehan Dost, a neurologist, to give expert
opinion evidence. Dr. Dost saw Ms. Amini January 28, 2013 for an assessment and
issued a medical legal report of the same date.

[77]        
At the time he saw her Ms. Amini was complaining of cervical pain
radiating to the right shoulder which she said had improved but was aggravated
by activity and headaches which she told him had begun in or about January 2012.
She described the headaches to Dr. Dost as “generalized constant daily pressure,
which will wax and wane.” She was taking Advil, Repax and Naproxen as needed.

[78]        
Dr. Dost was of the view the plaintiff’s cervical and right shoulder
pain was not caused by neurological injury but was a musculoskeletal issue. He
concluded her headaches were not related to the Accident, stating:

1.     The
headaches began at an unacceptable time post-incident to imply traumatic
causation:

a)  Indeed, from her self-report,
they began approximately a year post collision.

b)  This is also consistent with the medical records, which
do not identify any complaints of headaches for a prolonged time post incident.
This does not satisfy the inclusionary criteria for post-traumatic headache
syndrome as identified by the International Headache Society Criteria for such.
Irrespective of etiology and causation, the headaches do not result in any
disability with relation to basic and instrumental activities of daily living
or vocational pursuits and indeed, she has resumed the latter. With respect to
the instrumental activities of daily living that she states are impaired, this
is due to her right shoulder issues, not as a result of her headaches.

[79]        
In short, Dr. Dost was of the view the interval between the date of the
Accident and the plaintiff’s first complaint of headaches to Dr. Martens in
March 2012 was not consistent with the headaches being trauma related. Accordingly
he concluded there was no causal relationship between the Accident and the
headaches.

[80]        
Dr. Dost prepared a rebuttal report dated March 10, 2014 commenting on
the reports of Dr. Martens, Dr. Hershler and Dr. Nagaria. He noted that Dr. Martens
had not related the headaches to the Accident, with which he agreed. He wrote
that Dr. Hershler’s diagnosis was inappropriate as the International Headache
Society criteria “require demonstrable radiological abnormality in areas known
to produce headache and a positive response to facet blocks.” In his view,
neither criterion was satisfied in the plaintiff’s case.

[81]        
He testified he did not comment on the report of Dr. Nagaria as a result
of his oversight. By that I take it he was requested to comment on Dr. Nagaria’s
report but overlooked doing so.

Conclusions Regarding Plaintiff’s Current Condition

[82]        
One of the main issues in contention between the parties and which must
be determined is whether the plaintiff has established the ongoing and
persistent headaches of which she complains are attributable to the Accident.

[83]        
The onus the plaintiff bears is to establish that “but for” the Accident
she would not have sustained her headaches, that is, that the conduct of the
defendant caused or contributed to her ongoing headaches: Clements v.
Clements, 2012 SCC 32.

[84]        
The onus on the plaintiff to establish her claim requires proof on the
balance of probabilities: that it is more likely than not that her headaches
were caused or contributed to by the Accident. Causation need not be proved
with scientific precision and may, in certain circumstances be inferred from
the evidence using ordinary common sense: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 16 – 17.

[85]        
There are a number of factors to take into account in determining this
issue in the present case.

[86]        
First, there is no evidence Ms. Amini suffered from headaches before the
Accident. She testified that she started getting headaches after the Accident.

[87]        
Dr. Martens’ first clinical note concerning Ms. Amini’s complaint of headaches
was made March 8, 2012, in excess of a year following the Accident. The note
refers to “ongoing headaches” which were likely “tension related”. While
“ongoing” implies they had existed before that date I must conclude that had Ms.
Amini complained of headaches prior to that date, Dr. Martens would have noted
the complaint in his clinical notes.

[88]        
I am also of the view that had he been of the opinion at the time that
the headaches did result from the Accident or were related to her neck or
shoulder pain, Dr. Martens would have noted that, rather than referring to them
as “tension related.” It was not until giving his evidence at trial Dr. Martens
“clarified” his opinion, testifying that it was his view that “it was more
likely than not” that the injuries sustained in the Accident caused Ms. Amini’s
headaches.  Although no objection was taken at the time by defence counsel, it
would, in my view, be improper to accept such opinion as evidence as the
“clarification” falls well outside the contents of Dr. Marten’s medical report
in which he has described the headaches as being “tension related” headaches”. 
Accordingly I place no weight on Dr. Marten’s “clarification”.

[89]        
 Dr. Martens referred Ms. Amini to Dr. Nagaria. In his report to Dr. Martens,
Dr. Nagaria opined Ms. Amini’s headaches were “most likely” migraine headaches.
Dr. Nagaria knew at the time he saw her that Ms. Amini had been involved in the
Accident and knew she had neck and shoulder related pain as a consequence.

[90]        
In September 2012 Dr. Nagaria wrote a letter to Blue Cross seeking
approval for Botox injections and noted that Ms. Amini “has been having chronic
migraines for over 2 years.” As he acknowledged, he based this comment on what
he had been told by Ms. Amini.  Dr. Nagaria faxed his letter to Blue Cross on
September 26, 2012, presumably after seeing Ms. Amani on September 18, 2012.

[91]        
However, in his letter to plaintiff’s counsel on October 17, 2012,
without seeing Ms. Amini in the interim, Dr. Nagaria attributed her headaches
to “post traumatic headache or post traumatic concussion”, after apparently
ruling out migraine headaches as a cause. It is difficult to understand why Dr.
Nagaria changed his diagnosis, particularly given that in his reporting letter
to Dr. Martens he wrote under a heading “Differential diagnosis” that it was “important
to rule out… Migraine type headache.” From this it appears that Dr. Nagaria
specifically investigated whether a diagnosis of migraine headaches could be
ruled out and had determined it could not be.

[92]        
I find Dr. Nagaria’s medical legal opinion of February 7, 2014 (exhibit
10) to be confusing and unhelpful in resolving the cause of the plaintiff’s
headaches.

[93]        
Further, in his medical legal opinion Dr. Nagaria opined the plaintiff’s
“history and examination is consistent with a diagnosis of post-traumatic
headache”.  An opinion that a medical condition for which the plaintiff seeks
compensation against a defendant is “consistent with” a particular condition
does not persuade me on a balance of probabilities that the Accident caused
this condition.

[94]        
Neither Dr. Nagaria nor Dr. Hershler were aware Ms. Amini had not
complained of having headaches to Dr. Martens until March 8, 2012. Neither had seen
Dr. Martens’ clinical records when they saw and recorded their history from Ms.
Amini.

[95]        
Ms. Amini told both physicians she had commenced having headaches, not
immediately after, but shortly after the Accident. Dr. Nagaria wrote in his
medical legal opinion: “Ever since the Accident, she suffered from headaches,
neck pain dizziness and muscle spasm”. Dr. Hershler wrote:

Shortly after the accident, in addition to the pain on
the side of the neck and across the right shoulder, she also began to
experience extension of neck pain into the right side of the head in the form
of a headache. The headache was initially mild but became progressively more
intense over time. She also had intermittent dizziness during that period.

[Emphasis added.]

[96]        
I am of the view it is very unlikely Ms. Amini complained about
headaches to Dr. Martens before March 8, 2012. Notwithstanding Dr. Martens’ one-visit-one-complaint
policy, a family physician has a responsibility to accurately record his or her
patient’s complaints, particularly those arising from a motor vehicle Accident
where third party liability is often at issue. Given the detailed nature and
extent of the clinical records kept by Dr. Martens I find had Ms. Amini made
such a complaint he would have recorded it.

[97]        
Accordingly I find Ms. Amini’s headaches were not reported to Dr. Martens
until March 8, 2012 and that she started experiencing headaches likely of
increasing intensity prior to that time but that she did not report such
headaches to Dr. Martens until the date he noted in his clinical records.

[98]        
Given the inaccurate information both Drs. Hershler and Nagaria were
provided with as to when Ms. Amini’s headaches commenced and the change in Dr. Nagaria’s
diagnosis I do not accept either opinion that Ms. Amini’s headaches were
related to the Accident. Rather I accept the opinion of Dr. Dost that the
headaches were not related to the Accident. Dr. Dost’s opinion is well
reinforced by the publication of the International Headache Society as to the
requirement for a temporal relationship between the trauma and the onset of the
headache(s).

Non Pecuniary Damages

[99]        
The principles upon which non-pecuniary damages are awarded were stated
in Stapley v. Hejslet, 2006 BCCA 34 and include consideration of such
factors as the age of the plaintiff, the nature of the injury, the severity and
duration of pain, the degree of disability, the emotional suffering, the loss
or impairment of life, the impairment of family, marital and social
relationships, the impairment of physical and mental abilities, the loss of
lifestyle, and the plaintiff’s stoicism.

[100]     The
plaintiff suggests a range of between $55,000 and $85,000 depending on the Court’s
assessment of the cause of Ms. Amini’s headaches. The plaintiff relies on Beagle
v. Cornelson Estate, 2013 BCSC 933; Witzer v. Soderlund, 2000 BCSC
1199; McConvey v. Hart, 2013 BCSC 1058; Sandhar v. Rolston, 2012
BCSC 495; Milburn v. Ernst, 2012 BCSC 93; Langley v. Heppner,
2011 BCSC 179; and Juraski v. Beek, 2011 BCSC 982.

[101]     The
defendant suggests non-pecuniary damages in the range of $20,000 to $25,000 if
the Court accepts the headaches were caused by the Accident and between 12,000
and $15,000 if the Court finds the headaches were not caused by the Accident.

[102]     As stated,
the defendant’s position is that Ms. Amini’s headaches were not caused by the
Accident and she has essentially recovered from the soft tissue injuries that
were caused by the Accident. The defendant relies on Vela v. MacKenzie,
2012 BCSC 438; Olianka v. Spagnol, 2011 BCSC 1013; and Laroche v.
MacPhail, 2007 BCSC 1451.

Discussion

[103]     There is some
difference between the testimony and the medical report of Dr. Martens and the
testimony of Ms. Amini.

[104]     Dr. Martens’
clinical records note she was “much improved” when he saw her on July 12, 2012
and that she was “essentially fully recovered” on September 5, 2013. In his
medical legal report of February 3, 2014 Dr. Martens writes that he is “confident”
she would continue to recover and that her prognosis is favourable.

[105]     The
plaintiff says she has ongoing pain in her neck and shoulders and is unable to
perform much of the heavier household tasks.

[106]     Notwithstanding
the discrepancies in the evidence I accept the plaintiff was generally a
credible witness.

[107]     Ms. Amini’s
subjective complaints are supported by Dr. Hershler’s physical examination and
diagnosis of September 2013 as described above, some days after Dr. Martens’
September 5, 2013 office visit with her upon which Dr. Martens’ opinion was based.
To repeat, Dr. Hershler recorded fairly significant objective symptoms on deep
palpation to her affected soft tissue areas.

[108]     What is
clear is that Ms. Amini did sustain what Dr. Martens described as an “acute
trauma” to the soft tissues of her right shoulder and neck as a result of the
Accident. She also sustained capsulitis of her right shoulder and mild rotator
cuff tendinopathy which limited her activities at work. She was found to have a
mild disc bulge at C5/6. These injuries would not have occurred but for the
Accident.

[109]     I am
somewhat handicapped in making an assessment of Ms. Amini’s functionality
because there was no functional capacity evaluation introduced in evidence. I do,
however, accept the evidence of Ms. Amini, which is supported by that of her
husband, Mr. Derakhsan, and Dr. Martens, that she has been and remains somewhat
limited in the functions she can perform around the home and that the pain she
suffers from the Accident has negatively affected her mood, personality and has
caused her to be depressed.

[110]     The effect
the Accident has had on Ms. Amini is also supported by the evidence of Mr. Yochim
who has observed her at work.

[111]     I am of
the view that the plaintiff’s condition will improve over time, particularly
given Dr. Martens’ and Dr. Hershler’s prognoses and recommendations.

[112]     Taking
into account the above evidence, my conclusion Ms. Amini’s headaches are not
attributable to the Accident, and the case authorities referred to by counsel I
award the plaintiff $55,000 in non-pecuniary damages.

Loss of Time Bank Benefits

[113]     As noted
above Ms. Amini received her salary during the period of time she was on sick
leave in July and August 2013. She seeks recovery from the defendants of the
amount she says she will have to repay to her sick leave account to restore her
to the position she would have been in had she not taken such benefits: Cunningham
v. Wheeler, [1994] 1 S.C.R. 359; Bjarnason v. Parks, 2009 BCSC 48; Chingcuangco
v. Herback, 2013 BCSC 268; Gormick v. Amenta, 2013 BCSC 1998.

[114]     The
defendant says there is no evidence the leave of absence was causally related
to the Accident and further that there is no evidence of the terms of the
collective agreement which describe how the sick bank works: whether it is
capped at a certain level; whether the plaintiff has a right to have her sick
bank paid out should she leave employment; or whether the plaintiff must
actually pay the sick bank back.

[115]     In my view
the short answer to the defendant’s position is found in Dr. Martens’ clinical
notes of September 5, 2013 upon which the defendant relied for other purposes
which, in part, reads “returning to work after long term disability due to MVA”.
If the defendant challenged the reason for the leave then that was a matter to
put to Dr. Martens.

[116]     Further, Ms.
Amini’s unchallenged evidence was she was required to repay the salary she
earned while on leave ($14,000) to the sick bank to reinstate the time she took
off on leave.

[117]     I award
the plaintiff $14,000 to compensate her for the time lost from her sick leave
account. This amount is not subject to deductions for income tax: Bjarnason,
at para. 66; Chingcuangco, at para. 214; Gormick, at
paras. 5-15.

Special Damages

[118]      The
parties have agreed Ms. Amini incurred the following out of pocket expenses
after the Accident. The issue is whether such expenses are recoverable:

–           
massage therapy treatments in the amount of $542.40;

–           
physiotherapy therapy treatments in the amount of $495.00;

–           
prescription drugs in the amount of $64.81;

–           
mileage charges in the amount of $181.79;

–           
Botox treatment in the amount of $450.00; and

–           
Dr. Martens’ form fees in the amount of $70.00.

[119]     A number
of these expenses are disputed by the defendant, in particular some of the
prescription drug costs and the cost of the Botox treatment which the
defendants say are attributable solely to treatment for the plaintiff’s
headaches.

[120]     I allow
the following expenses, finding them to have been reasonably incurred by the
plaintiff as a result of the Accident:

[121]     To the
extent the plaintiff has been reimbursed for her prescription drugs by Blue
Cross, she is only to recover that portion not covered under the Blue Cross
plan. Should counsel be unable to resolve this they will have liberty to apply
to speak to the matter.

[122]     I have not
allowed expenses for the Botox treatment for Ms. Amini’s headaches as I have
found her headaches were not the result of the Accident.

Loss of Future Earning Capacity

[123]     The
plaintiff says she has been rendered a less valuable and marketable employee
due to her injuries: that it is unlikely she will be able to do more physical
jobs, such as clinical nursing at FHA, in her non-instructional term as she has
done in the past.

[124]     The law
applicable to the recovery of damages for future earning capacity has been
referred to frequently.

[125]     A claim
for loss of earning capacity or loss of the ability to earn future income
requires a plaintiff to prove that there is a real and substantial possibility
of a future event leading to an income loss: Perren v. Lalari, 2010 BCCA
140 at paras. 30 – 32.

[126]     Mere
speculation there will be such a loss is not sufficient to justify an award for
damages for loss of future income: Perren at para. para. 31.

[127]     The
plaintiff argues one-half of a year’s salary, or between $40,000 and $80,000,
would be an appropriate award under this head of damage.

[128]     In my
view, Ms. Amini faces several insurmountable hurdles in seeking to recover
damages for loss of future earning capacity. As stated, the Court has no
functional capacity report before it which allows it to make an assessment of
what Ms. Amini’s employment demands are and what limitations she has or may
have in being able to carry out such demands, whether in her regular employment
as a Nursing Instructor or as a casual part time home care nurse. She is able
to continue her work as a clinical instructor. The Court has a prognosis from Dr.
Hershler which simply says she will be “limited in her ability to work
effectively in the long term.” There is no evidence before the Court as to the
extent of such limitation or the meaning of “long term”.

[129]     Ms. Amini
resigned her position with FHA in September 2009, several months before the
Accident. There is no evidence before the Court besides her assertion in testimony
that she had made plans to return any time in the future.

[130]     I am of
the view the evidence does not rise above the speculative level: that is, that
she may have returned to FHA or taken some other employment in her third
semester at some time in the future, but this does not rise to the level of a
real and substantial possibility. Accordingly I reject this claim.

Cost of Future Care

[131]     As
discussed in Prempeh v. Boisvert, 2012 BCSC 304 at para. 107, an award
for cost of future case must be based on medical evidence as to what is
reasonably necessary to preserve and promote the plaintiff’s mental and
physical health. In assessing cost of future care, the court should consider
whether the plaintiff would likely use the items or services in the future.

[132]    
In Prempeh Justice Dardi observed that this assessment is not a
precise exercise:

[108] The assessment of damages
for cost of future care necessarily entails the prediction of future events: Courdin
v. Meyers, 2005 BCCA 91 at para. 34; Krangle (Guardian ad litem of) v.
Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205 at para. 21. The courts have long
recognized that such an assessment is not a precise accounting exercise and
that adjustments may be made for “the contingency that the future may differ
from what the evidence at trial indicates”: Krangle at para. 21; X.
v. Y. at para 267. The extent, if any, to which a future care costs award
should be adjusted for contingencies depends on the consideration of the
specific care needs of the plaintiff and the expenditures that reasonably may
be expected to be required – taking into account the prospect of any
improvement in the plaintiff’s condition or conversely the prospect that
additional care will be required: O’Connell v. Young, 2012 BCCA 57 at
paras. 67-68; Gilbert v. Bottle, 2011 BCSC 1389 at para. 253.

[133]     Dr. Hershler
strongly recommended Ms. Amini be put on the Medical Marijuana Program to
assist in controlling her pain so as to allow her to work on strengthening
exercises for her neck and back. He was of the view this would allow her a
“good chance for effective pain management”. I accept his recommendation as a
reasonable one.

[134]     Dr. Hershler
recommended she be prescribed ten grams of cannabis per day to be used as an
ointment. He recommended this be followed with 20 sessions with a physiotherapist
to build core strength and range of motion.

[135]     Dr. Hershler
estimated the cost of a six month program using a dosage of 10 grams per day to
be approximately $9,000. In cross-examination counsel suggested the ointment
could be made at considerably less cost if the plaintiff, as a Nurse, made her
own. Dr. Hershler did not disagree.

[136]     I award
the plaintiff $6,500 for a Medical Marijuana Program and $1,500 for the cost of
20 physiotherapy sessions (at $75 each) to follow the medical marijuana
treatments.

Loss of Housekeeping Capacity

[137]     Although
the plaintiff has not produced a Cost of Future Care Report I am of the view
while she undergoes the Medical Marijuana Program and physiotherapy she should
receive assistance with housekeeping. Again, there is no evidence before the Court
as to the cost of such services.

[138]     It is well
recognized that damages for loss of housekeeping capacity may be awarded even if
housekeeping services are gratuitously replaced by a family member: McTavish
v. MacGillivray, 2000 BCCA 164. The preferred approach for assessing such a
loss is to estimate the cost of replacement services: McTavish, at para.
48-49.

[139]     Based on
the evidence of Ms. Amini and her husband, Mr. Derakhsan and their daughter do
most of the household tasks including vacuuming, doing dishes, mopping,
cleaning, laundry, cooking and looking after their young son. In my view an
award compensating the plaintiff’s loss of housekeeping capacity in the amount
of $12,000 is reasonable. This amount would compensate the plaintiff for approximately
three years of pre-trial housekeeping capacity and approximately one to two
years of future housekeeping capacity for two hours of housekeeping services
per week at the rate of $25.00 per hour.

Summary

[140]     In summary
I award the plaintiff the following amounts:

[141]    
Unless there are matters of which I am unaware, Ms. Amini is entitled to
her costs. If either party seeks a different award with regard to costs they
should file written submissions within 30 days of these reasons. Any responsive
submission should be filed 14 days thereafter.

“Greyell
J.”