IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140825

Docket: M113154

Registry:
Vancouver

Between:

Shameema Azam

Plaintiff

And

Jesus Bilaya and
Hans-Henrik Jensen

Defendants

– and –

Docket: M134315

Registry:
Vancouver

Between:

Shameema Azam

Plaintiff

And

Hans-Henrik Jensen

Defendant

Before:
The Honourable Madam Justice Gerow

Reasons for Judgment

Introduction

[1]            
Shameema Azam was involved in two motorcycle accidents, one on September 11,
2009, and the other on April 25, 2010. At the time of both accidents, Ms. Azam
was a passenger, and her boyfriend, the defendant Hans-Henrik Jensen, was driving.
Ms. Azam commenced two actions, one against Jesus Bilaya and Mr. Jensen
seeking damages for the injuries she sustained in the September 2009 accident. Ms. Azam
has commenced a second action against Mr. Jensen for injuries she
sustained in the April 2010 accident. In the second action, Ms. Azam also
claims damages for injuries she sustained when Mr. Jensen physically assaulted
her on different occasions. The actions were heard at the same time.

[2]            
The defendants Jesus Bilaya and
Mr. Jensen have jointly admitted their liability for causing the motor
vehicle accident of September 11, 2009. Mr. Jensen admits liability for
causing the motor vehicle accident of April 25, 2010. Mr. Jensen has not
defended the action against him for the assaults on Ms. Azam, and did not
attend the trial.

[3]            
As well, the defendants in the two motor vehicle accidents admit Ms. Azam
suffered some injuries in the accidents. However, they disagree about the
extent, seriousness and duration of her injuries. They take the position that Ms. Azam
has not proven her ongoing low back and psychological complaints were caused by
the accidents. The defendants in the motor vehicle accidents assert Ms. Azam
has been involved in a number of physical altercations with Mr. Jensen and
has suffered various injuries from those assaults. They say any ongoing
complaints Ms. Azam has are from the injuries she sustained in the
assaults and not from injuries she sustained in either motor vehicle accident.

Issues

[4]            
The issues to be determined are:

1)    What are the
nature, extent and duration of the injuries Ms. Azam suffered from the motor
vehicle accidents and the assaults?

2)    What is the
appropriate award of general damages for pain and suffering?

3)    What amount, if
any, should be awarded for the past and future loss of earnings or income
earning capacity?

4)    What amount, if
any, should be awarded for cost of future care?

5)    What amount
should be awarded for special damages?

Background

[5]            
Ms. Azam is currently 35 years old and living in Saskatchewan. At
the time of both motor vehicle accidents she was living in Vancouver, B.C.

[6]            
The first motor vehicle accident occurred on September 11, 2009. Ms. Azam
and Mr. Jensen were participating in a motorcycle ride with other
motorcycle enthusiasts. They met through a motorcycle group that rode motorcycles
recreationally. At the time of the first accident, Mr. Jensen was living
with another woman, but he and Ms. Azam had just commenced a relationship.

[7]            
The accident occurred when a minivan driven by the defendant Mr. Bilaya
turned left without signalling as Mr. Jensen was attempting to pass it. Ms. Azam
was thrown from the motorcycle and landed half on the sidewalk and half on the
street. She lost consciousness briefly, but regained it at the scene. She was
taken to Richmond Hospital where X-rays revealed a fracture of her right
scapula. Ms. Azam was also told she had sustained a concussion. She was
released from the hospital the same day. There is a dispute between the parties
as to whether or not Ms. Azam sustained injuries to her low back in the
first accident.

[8]            
At the time of the first accident, Ms. Azam was working full time
as a grocery clerk at Save-On-Foods. She had been working part time in the
pharmacy department as a pharmacy technician but had obtained full time
employment as a grocery clerk on July 28, 2009. On October 13, 2009, Ms. Azam
commenced a graduated return to work program. She took some further time off
work in October but returned to work fulltime with light duties on November 21,
2009.

[9]            
The second motorcycle accident occurred on April 25, 2010. Mr. Jensen
was stopped at an intersection and when he accelerated, the front end of the motorcycle
lifted up and Ms. Azam fell off the back and onto the road. She did not
lose consciousness; however, she felt immediate pain in her right hand and arm.
Ms. Azam was taken to the hospital and X-rays revealed she had broken her
right wrist. As well, Ms. Azam says she injured her knees in the accident,
and her injuries from the earlier accident were aggravated.

[10]        
After the second accident, Ms. Azam and Mr. Jensen continued
to have a relationship. Ms. Azam decided to confront Mr. Jensen’s
former girlfriend and tell her about the affair. As a result, Mr. Jensen’s
girlfriend told him to leave. He was initially angry at Ms. Azam for
sabotaging his relationship, and they did not speak for a while. However, they
reconnected, and Mr. Jensen moved in with Ms. Azam on August 1,
2010.

[11]        
After moving in with Ms. Azam, Mr. Jensen remained “hung up”
on his former girlfriend, which caused stress in his relationship with Ms. Azam.
Their relationship became volatile, and they started fighting more often. Their
first major altercation was shortly after he moved in August 2010, when she
smashed some objects and left temporarily. After that incident the couple became
increasingly physical with one another.

[12]        
In January 2011, Ms. Azam attempted to commit suicide.

[13]        
In March 2013, there was a physical altercation between the couple. Mr.
Jensen strangled Ms. Azam, and she hit him with a rolling pin and over the head
with a wine bottle. As well in March 2011, Ms. Azam stabbed Mr. Jensen
in the hand with a knife when he was trying to get into the apartment through a
window after she had locked him out.

[14]        
From April 11-24, 2011, Ms. Azam went to Denmark with Mr. Jensen
to see his family and friends. In June 2011, she saw a psychiatrist at a mood
disorder clinic.

[15]        
At the beginning of October 2011, Ms. Azam and Mr. Jensen
moved to Kelowna. She was originally hoping to get a job in the pharmacy at
Costco and did not apply for other positions. Ms. Azam eventually obtained two
part-time pharmacy jobs, one at Save-On-Foods in January 2012, and the other at
Shoppers Drug Mart starting January 24, 2012.

[16]        
In February 2012, Ms. Azam received a chest injury as a result of what she
characterized as rough-housing with Mr. Jensen. On May 19, 2012 she quit
her job at Save-On-Foods.

[17]        
Ms. Azam testified there was an altercation sometime in April or
May 2012 in which they were fighting and she threatened to hit him with a
frying pan. Mr. Jensen grabbed the pan out of her hand and threw her on
the floor. She landed on her front. Her stomach hurt, and she had the wind
knocked out of her.

[18]        
On May 25 and 26, 2012, there was a very serious physical altercation
between them. Mr. Jensen held Ms. Azam hostage, would not let her
sleep, and punched and kicked her repeatedly. He grabbed her hair and pulled
her to the ground by it, hurting her neck. At one point he threw her into a
wall, where she hit the crown moulding. She testified she “saw stars”. Mr. Jensen
was threatening to kill her. Ms. Azam finally managed to get out of the
house, and was seen by the neighbours, who called the police. The police
attended and Mr. Jensen was arrested and charged with assault. He spent
four months in jail. After his release, he and Ms. Azam resumed living
together.

[19]        
The assaults caused injuries to Ms. Azam’s neck and back. Ms. Azam
testified that she could hardly turn her head after the assaults. Her neck was
sore and her jaw was swollen. Ms. Azam attended the hospital for
treatment. She testified the assaults aggravated her injuries from the motor
vehicle accidents, but she returned to her pre-assault state in approximately a
month.

[20]        
From June to September 2012, Ms. Azam worked on an online bridging
course for pharmacy technicians through Selkirk College in order to become
registered as a pharmacy technician. She has not yet taken the required exam. During
the period of time Ms. Azam worked as a pharmacy technician a registration
requirement had been put in place. Ms. Azam has to complete the bridging
program to become registered in British Columbia so that she can continue to
work as a pharmacy technician. Not every province has a registration
requirement for pharmacy technicians.

[21]        
On September 19, 2012, Ms. Azam lost her job at Shoppers Drug Mart as a
result of problems she was having with the commute. On January 1, 2013,
she started working at a different Shoppers Drug Mart location closer to her
residence.

[22]        
In March 2013, Ms. Azam slipped and fell on an icy driveway. The
fall jolted her and injured her lower back. Ms. Azam attended a walk-in
clinic after the fall. She testified her low back pain was aggravated.

[23]        
In July 2013, Ms. Azam quit her job to move with Mr. Jensen to
Meadow Lake, Saskatchewan. Ms. Azam and Mr. Jensen were offered jobs
working at his parents’ bakery. She worked there for a week.

[24]        
On July 28, 2013, another altercation occurred. Mr. Jensen punched Ms. Azam
twice in the face.

[25]        
In August 2013, Ms. Azam started two jobs, one working at the Co-op
in the pharmacy department and the other at Meadow Lake Hospital. She stopped
working at the Co-op in December 2013. Since February 2014, Ms. Azam
worked full time hours at the hospital; however her back pain was aggravated
working full time. She is currently working reduced hours at the hospital.

[26]        
At trial, Ms. Azam testified her ongoing complaints are pain in her
right shoulder, forearm pain, knee pain and her low back. Prior to the first
accident, Ms. Azam suffered from periodic low back pain but would recover
from it. As well, Ms. Azam says that she suffers from ongoing
psychological problems as a result of the accidents. Ms. Azam concedes
that she likely had personality disorder traits prior to the first accident,
but says the accidents have significantly exacerbated her psychological
problems.

What are the Nature, Extent and Duration of the Injuries Ms. Azam Suffered
in the Accidents?

Plaintiff’s Position

[27]        
Ms. Azam’s position is that she suffered significant injuries as a
combined effect to the two motor vehicle accidents. Ms. Azam concedes she
suffered injuries as a result of the subsequent assaults on her by Mr. Jensen.
Ms. Azam says the injuries from the accidents and the assaults are almost
wholly indivisible injuries. Ms. Azam takes the position that the assaults
by Mr. Jensen did not cause any new injuries, but only aggravated the
injuries she sustained in the accidents.

[28]        
The only distinct divisible injury she suffered is the fracture of her
right wrist in the second accident which has resulted in some ongoing issues
with repetitive motions.

[29]        
As well, Ms. Azam says the slip and fall she suffered in March 2013
did not cause any new injuries but exacerbated her pre-existing injuries.

[30]        
Ms. Azam says the fracture of her scapula is just part of her
shoulder injury for which a distinct cause and effect cannot be carved out. The
same applies to the concussion from the first accident and the injuries caused
by the assaults, with the exception of some bruises and abrasions.

[31]        
Ms. Azam says the combined effects of the two accidents were sufficient
to cause the ongoing disabilities she is suffering from. While the assaults
subsequently contributed to Ms. Azam’s injuries, none of them were
sufficient to cause her loss and disability in the absence of the motor vehicle
accidents.

[32]        
Ms. Azam’s injuries are both physical and psychological.
While she likely had borderline personality traits prior to
September 11, 2009, she had never been diagnosed or treated for any mental
disorder. Ms. Azam’s functioning prior to the first accident, while not
outstanding, could be characterized as average.

[33]        
Subsequent to the first accident she has
developed and was diagnosed with borderline personality disorder and major
depression. Ms. Azam submits the genesis of her psychiatric problems is
with the first motor vehicle accident, aggravated by the second motor vehicle
accident and the subsequent assaults.

[34]        
While a substantial amount of time has been
spent on Ms. Azam’s emotional and psychological state, the primary cause
of her disability is physical. The emotional and psychological issues caused by
the accidents have simply been a complicating factor and likely have
contributed to her remaining in an abusive relationship.

[35]        
Prior to the first accident, Ms. Azam did
suffer from episodic back pain from time to time usually related to her
straining it while doing some particular activity. The uncontradicted evidence
is that she fully recovered from all of those prior episodes of back pain. Since
the first motor vehicle accident Ms. Azam has suffered from chronic,
unrelenting back pain. There is no evidence that in the absence of the motor
vehicle accidents her episodic back pain would have developed into such a
chronic, disabling condition. It is likely she would have continued to have
episodic back pain related to random incidents from time to time with a full
recovery and a minimal amount of missed time from work.

[36]        
Ms. Azam submits that her current injuries
must be assessed as a single injury with the exception of the only clearly
divisible injuries. The only significant injury that can be segregated out is
the broken wrist. The wrist injury on its own would not have caused Ms. Azam’s
current disability. Ms. Azam submits that her current level of pain and
dysfunction are solely attributable to the indivisible injuries.

Defendants’ Position

[37]        
The defendants in the motor vehicle accidents concede Ms. Azam was
injured in the two accidents; however they take the position that her ongoing
complaints relating to her low back pain and psychological problems are not a
result of the accidents. Further, the defendants submit that Ms. Azam is
not a reliable witness, and that her evidence must be regarded with some
skepticism because her reports of her injuries and abilities have not been
consistent.

[38]        
Ms. Azam has a well-documented history of low back pain prior to
the first accident, going back to 2005. A CT scan in February 2009 indicated
she had two herniated discs. There was no report of back pain until October 29,
2009, a month after the first accident. The defendants submit Ms. Azam’s
report of low back pain in October 2009, is too remote to have been caused by
the first accident. The defendants submit that a recurrence of her low back
pain at that time is consistent with her prior pattern of low back pain arising
from various incidents. She would have an aggravation of back pain and then it
would settle.

[39]        
In the spring of 2010, Ms. Azam resumed motorcycle riding and
agreed she was 50% better from her injuries sustained in the first accident,
when the second accident occurred. As a result of the second accident, Ms. Azam
suffered a fractured right wrist, some neck pain and a temporary aggravation of
her pre-existing low back condition, as well as some knee pain.

[40]        
The defendants in the motor vehicle accidents submit the evidence
supports a finding that the assaults caused a jaw injury, black eye, bruises on
her neck and under her arm, psychological disorder and depression. While Ms. Azam’s
experts opine that her depression, aggravated borderline personality disorder
and suicide attempt were caused by the accidents, their opinions were based
largely on Ms. Azam’s subjective reports of her symptoms. The defendants submit
Ms. Azam’s failure to volunteer little, if any, information about the
nature of the assaults has contributed to her experts’ opinions regarding the
causation of her psychological difficulties.

[41]        
The defendants in the motor vehicle accidents take the position that Ms. Azam’s
ongoing complaints relate mainly to her symptomatic pre-existing degenerative
condition in her back, and subsequent injuries from the assaults by Mr. Jensen.
Although Ms. Azam alleges she became increasingly depressed after the
second accident with significant mood disruption and exacerbation of her
pre-existing borderline personality trait leading to a major depressive
disorder and an attempt to commit suicide in January 2011, the defendants
submit Ms. Azam’s psychological difficulties are attributable to her
relationship with Mr. Jensen and her pre-existing personality traits.

Relevant Law

[42]        
The Supreme Court of Canada considered causation in Clements v.
Clements, 2012 SCC 32. The Court confirmed that the basic test for
determining causation remains the “but for” test articulated in Snell v.
Farrell, [1990] 2 S.C.R. 311, and Athey v. Leonati, [1996] 3 S.C.R.
458. The plaintiff bears the burden of proving that but for the negligent act
or omission of the defendant, the injury would not have occurred.

[43]        
The plaintiff is not required to establish that the defendant’s
negligence was the sole cause of his or her injuries. The tortfeasor must take
his or her victim as the tortfeasor finds them, and is liable even if there are
other causal factors, for which tortfeasor is not responsible, that result in
the victim’s losses being more severe than they would be for the average
person. At the same time, the tortfeasor need not put the victim in a better
position than they would have been in, and need not compensate the victim for
the effects of a pre-existing condition that the victim would have experienced
in any event: Snell and Athey.

[44]        
In Athey at 473, the Court sets out the
way in which a pre-existing condition may be relevant to the assessment of
damages :

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

[35] The
so-called "crumbling skull" rule simply recognizes that the
pre-existing condition was inherent in the plaintiff’s "original
position". The defendant need not put the plaintiff in a position better
than his or her original position. The defendant is liable for the injuries
caused, even if they are extreme, but need not compensate the plaintiff for any
debilitating effects of the pre-existing condition which the plaintiff would
have experienced anyway. The defendant is liable for the additional damage but
not the pre-existing damage: … Likewise, if there is a measurable risk that
the pre-existing condition would have detrimentally affected the plaintiff in
the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award: … This is consistent with the
general rule that the plaintiff must be returned to the position he would have
been in, with all of its attendant risks and shortcomings, and not a better position.

[45]        
In Bradley v. Groves, 2010 BCCA 61, the court referred to Athey
in discussing indivisible and divisible injuries in the context of a personal
injury case:

[20] In the course of the discussion, Major J. (for the
Court) described injuries produced by more than one cause as either “divisible”
or “indivisible”. Divisible injuries are those capable of being separated out
and having their damages assessed independently. Indivisible injuries are those
that cannot be separated or have liability attributed to the constituent
causes. At paras. 22-25, he commented on apportionment between multiple causes
and the issue of divisibility:

(1) Multiple Tortious Causes

[22] The respondents argued that
apportionment between tortious and non-tortious causes should be permitted just
as it is where multiple tortfeasors cause the injury. The two situations are
not analogous. Apportionment between tortious causes is expressly permitted
by provincial negligence statutes and is consistent with the general principles
of tort law. The plaintiff is still fully compensated and is placed in the
position he or she would have been in but for the negligence of the defendants.
Each defendant remains fully liable to the plaintiff for the injury, since each
was a cause of the injury. The legislation simply permits defendants to seek
contribution and indemnity from one another, according to the degree of
responsibility for the injury.

[…]

(2) Divisible Injuries

[24] The respondents submitted
that apportionment is permitted where the injuries caused by two defendants are
divisible (for example, one injuring the plaintiff’s foot and the other the
plaintiff’s arm): Fleming, supra, at p. 201. Separation of distinct and
divisible injuries is not truly apportionment; it is simply making each
defendant liable only for the injury he or she has caused, according to the
usual rule. The respondents are correct that separation is also permitted
where some of the injuries have tortious causes and some of the injuries have
non-tortious causes: Fleming, supra, at p. 202. Again, such cases merely
recognize that the defendant is not liable for injuries which were not caused
by his or her negligence.

[25] In
the present case, there is a single indivisible injury, the disc herniation, so
division is neither possible nor appropriate. The disc herniation and its
consequences are one injury, and any defendant found to have negligently caused
or contributed to the injury will be fully liable for it.

[Emphasis added.]

[21] Accordingly, liability to a plaintiff for indivisible
injuries is joint and several.

[22] The conclusions in Athey
were further refined in the decision of the Supreme Court in E.D.G. v.
Hammer, 2003 SCC 52, [2003] 2 S.C.R. 429. Though not dispositive of that
appeal, the judgment reinforced the distinction between divisible and
indivisible injuries, and the principle that tortfeasors who cause or
contribute to a single injury will be held jointly liable.

[46]        
The court in Bradley concluded that Athey requires joint
and several liability for indivisible injuries. If it is concluded that an
injury is indivisible, then the tortfeasors are jointly liable to the plaintiff
and absent contributory negligence the plaintiff can claim the entire award
from either of them.

Application of the Law to the Facts

[47]        
The injuries Ms. Azam suffered in the first motor vehicle accident
included a concussion and a fractured scapula. As well, she suffered from
scrapes to her face and bruises. Although she lost consciousness, Ms. Azam
had a normal Glasgow Coma Score at the scene of the accident.

[48]        
Ms. Azam testified she experienced neck and shoulder pain,
headaches and low back pain as a result of the first accident. Two days after
the accident she experienced a fainting spell. Ms. Azam had mild cognitive
difficulties for a period of time following the first accident, such as losing
her train of thought, irritability and becoming emotional easily.

[49]        
Ms. Azam’s symptoms from the first accident were improving at the
time of the second accident, which occurred only seven months later.

[50]        
In the second accident, Ms. Azam fractured her right wrist. As
well, she exacerbated the injuries from the first accident. As a result of the
second accident, Ms. Azam testified she experienced increased pain in her
neck, shoulder and back, and new symptoms of pain in the right wrist and both
knees, especially the left.

[51]        
Subsequent to both accidents, Ms. Azam had increased emotional
problems.

[52]        
The defendants challenge Ms. Azam’s evidence that her lower back
was injured in the first accident. As stated earlier, the defendants in the motor
vehicle accidents argue that any ongoing physical and mental problems Ms. Azam
suffers from are a result of the injuries from the assaults by Mr. Jensen,
and not a result of the injuries sustained in either accident.

[53]        
Ms. Azam asserts the reason she did not initially report the other
injuries she sustained in the first accident, including her low back pain, is
because the concussion and fractured scapula were very painful and acute
injuries that attracted most of her attention immediately after the accident.
However, other physical and emotional issues caused by the first accident
started to become more apparent in the weeks that followed. Ms. Azam’s
evidence is that she experienced lower back pain contemporaneously with the
first accident occurring, but was more focused on the severe pain from the
broken scapula and the severe headaches from the head injury.

[54]        
Dr. Robert Love was Ms. Azam’s family doctor starting in December
2002. Dr. Love operated a walk-in clinic, but also saw patients who could
book ahead. If Dr. Love was not available, Ms. Azam could see another
doctor in the clinic.

[55]        
Dr. Love saw Ms. Azam on September 17, 2009, six days
after the first accident. Prior to the first accident, he had not treated Ms. Azam
for any psychiatric or emotional problems. Dr. Love’s evidence is that he
had treated her for back pain prior to the first accident on a number of
occasions, starting in October 2006. At that time she told Dr. Love she
had a sore back on and off for 10 years. In October 2006, Dr. Love
ordered an X-ray of her lumbar spine which was normal. She returned and was
treated for low back pain on November 15, 2006.

[56]        
Dr. Love testified that Ms. Azam next attended the clinic for
back pain in May 2008. At that time she had severe low back pain. She had
recently been motorcycle riding and had fallen off a Jet Ski, landing on the
right side of her back. She had pain radiating down her right leg.

[57]        
Ms. Azam was next seen with a complaint of back pain in December
2008. She had bent over seven days prior to her visit to the clinic, and
experienced back pain with a muscle spasm and pain radiating down her leg. She
saw Dr. Love on December 23, 2008, for this back pain. At that time, Ms. Azam
again stated she had ongoing back pain the last 10 years, and had pain
radiating down her leg on and off for the previous five years.

[58]        
Ms. Azam next attended the clinic on January 27, 2009, for
back pain. She complained of pain in her right anterior thigh and right lower
leg. Her left leg also had some numbness and tingling. Dr. Love prescribed
pain medication and physiotherapy.

[59]        
On February 19, 2009, she attended the clinic again for back pain. At
that time, a CT scan was ordered. On March 19, 2009, she was still taking
pain medication for her back and was concerned about the addictive potential.
She was given a prescription for more pain killers. Dr. Love referred her
to Dr. Weiss, an expert in physical medicine and rehabilitation. Dr. Weiss
provided a consultation report on May 28, 2009, where he noted herniated
discs at L4/5 and L5/S1.

[60]        
On May 20, 2009, Ms. Azam attended the clinic after a fall off her
motorcycle. Ms. Azam injured her thumb, but there is no note of an issue
with her back.

[61]        
The next visit was after the first accident on September 17, 2009. Ms. Azam
advised Dr. Love she had been in the accident and fractured her right
shoulder and suffered a concussion. She advised him she had fainted following
the accident on September 13, 2009, and was taken to Vancouver General
Hospital emergency department. At the visit on September 17, 2009, Ms. Azam
complained of headaches and pain in her neck, shoulder and head. Ms. Azam
did not mention any back pain at the visit. On physical examination, Ms. Azam
had a limited range of motion in her neck.

[62]        
Ms. Azam saw Dr. Love on September 30, and October 7,
21 and 29, 2009. On October 29, 2009, she told Dr. Love her low back
pain had increased while she was driving and was going down her right leg to
her knee. Dr. Love was of the view Ms. Azam’s low back pain was a
result of the first accident. She continued to attend the clinic after that
date for treatment.

[63]        
On March 22, 2010, just prior to the second accident, Ms. Azam was
reporting that her neck was in pain daily, and her shoulder muscles were sore. Ms. Azam
reported that the abrasions on her left knee had healed but it was still tender.
Dr. Love asked her about her back and Ms. Azam reported that it was
sorer in the morning.

[64]        
The first psychological complaint was in October 2009, when Ms. Azam
told Dr. Love she was feeling a bit moody. After the second accident, she
reported being more anxious. In January 2011, after the suicide attempt, Dr. Love
started dealing with significant emotional issues with Ms. Azam.

[65]        
On April 6, 2011, Ms. Azam reported pain in her low back three to
four times a week. On physical examination she had good range of motion. There were
no muscles spasms but some mild pain in her lumbar spine. At that time, Dr. Love
prescribed an anti-depressant and referred her to a psychiatrist.

[66]        
The last time Dr. Love treated Ms. Azam was on February 27,
2013. She reported to him that her low back pain had been worse since early
February of that year, and she had been getting mild sciatic pain on and off
that month. Dr. Love was not aware of the assault on Ms. Azam by Mr. Jensen
in May 2012.

[67]        
A number of medical practitioners conducted independent medical
examinations of Ms. Azam and provided reports. Dr. Nairn Stewart, an
expert in physical medicine and rehabilitation, was retained by Ms. Azam
and provided an opinion regarding Ms. Azam’s ongoing physical problems.

[68]        
In her report, Dr. Stewart reviewed the history of Ms. Azam’s
low back pain. Dr. Stewart’s opinion is, based on the history provided by Ms. Azam
and a review of the medical records, that Ms. Azam sustained soft tissue
injuries to her neck and back in the September 2009 accident. In the April 2010
accident, Ms. Azam sustained new injuries to her wrist and knees, and an
exacerbation of her neck and back injuries from the earlier accident. Dr. Stewart’s
opinion was that the chronic pain Ms. Azam was complaining of was caused
by the accidents. However, Ms. Azam did not advise Dr. Stewart of any
assaults on her by Mr. Jensen, or the fact that she had been injured in
any of the assaults. The most significant assault was three months prior to Dr. Stewart
examining Ms. Azam. Dr. Stewart agreed the assaults could have
aggravated Ms. Azam’s low back pain.

[69]        
At the time Dr. Stewart saw Ms. Azam, she was working more
than full time hours between her various jobs. Dr. Stewart thought it
advisable that Ms. Azam work no more than a standard work week because of
her injuries. Dr. Stewart recommended Ms. Azam do daily stretching
exercises of her neck and back, and participate in an exercise program at a
gym.

[70]        
Dr. Stewart stated that although Ms. Azam likely sustained a
concussion or mild traumatic brain injury in the 2009 accident, it is unlikely
she sustained any lasting injury to her brain. Dr. Stewart was of the
opinion that any cognitive difficulties she reported were probably due to other
factors, such as sleep disturbance, medication effect and emotional
disturbance.

[71]        
Dr. Stephen Anderson, an expert in psychiatry, saw Ms. Azam on
November 17, 2011, at the request of her counsel for an independent
psychiatric assessment. Dr. Anderson diagnosed Ms. Azam as suffering
from borderline personality traits. Borderline personality traits can wax and
wane as a result of stressors but are usually developed by adolescence. In Dr. Anderson’s
opinion Ms. Azam was exhibiting borderline personality traits prior to the
first accident, but suicidal behaviour and violent behaviour did not occur before
the accident. Ms. Azam had some anger issues but no pattern of violent
behaviour. She slapped one of her former boyfriends after he had stolen money
and her car. After the motor vehicle accident she had several incidents of
violent behaviour towards her partner and a suicidal incident.

[72]        
Dr. Anderson’s opinion was that Ms. Azam’s psychological
difficulties were likely due to the accidents being superimposed on her premorbid
physical and emotional functioning. Dr. Anderson was of the opinion that Ms. Azam
would likely not have developed her present constellation of physical,
cognitive and emotional difficulties if she had not been injured in the motor
vehicle accidents. Dr. Anderson was of the opinion that any cognitive
difficulties associated with the concussion from the first accident would have
resolved within a few months.

[73]        
Dr. Anderson stated that there has been a significant strain put on
her relationship with Mr. Jensen because of her emotional changes
following the accident. However, Ms. Azam did not advise Dr. Anderson
of any of the assaults by Mr. Jensen, or the nature of the difficulties in
their relationship.

[74]        
Dr. Anderson stated he would give more weight to interpersonal
stressors rather than the chronic pain as the cause of the suicide attempt in
2011.

[75]        
Dr. Gouws, an expert in rehabilitation medicine, examined Ms. Azam
on May 23, 2013, at the request of her counsel. The examination consisted
of Ms. Azam completing questionnaires and being interviewed and physically
examined.

[76]        
Dr. Gouws noted Ms. Azam had suffered from episodic back pain
since high school. As well, he noted a CT scan and MRI in January 2009 revealed
a disc bulge at L3/4, and disc herniation at L4/5 and L5/S1.

[77]        
Dr. Gouws’ opinion is that Ms. Azam would not have developed
the chronic pain condition she suffers from if it had not been for the
accidents of 2009 and 2011. As well, he is of the opinion that she likely
injured her low back in the 2009 accident.

[78]        
Dr. Gouws was aware that there had been some assaults because of
medical records he had reviewed, but was not advised by Ms. Azam of the
extent of the assaults or the injuries caused by them.

[79]        
Dr. Gouws’ opinion is that Ms. Azam’s prognosis for
significant improvement in the future and a return to her pre-accident
functioning was guarded. He recommended that Ms. Azam continue with
appropriate rehabilitation and exercise. Dr. Gouws did not recommend
passive therapy, but rather recommended she would benefit from an exercise
program. Ms. Azam was not working at the time Dr. Gouws examined her
and he recommended that it was essential for Ms. Azam to return to work as
it had a significant positive influence on her life, as well as a stabilizing
and therapeutic effect on her affective and personality issues.

[80]        
Dr. William Regan, an expert in the area of orthopaedic surgery,
examined Ms. Azam at the request of the defendants on February 27,
2013. Dr. Regan’s opinion was that the first accident did not injure or
aggravate Ms. Azam’s pre-existing low back problems. Dr. Regan was of
the opinion that the second accident aggravated her low back complaints but was
not causative of them. In his view, the two-day assault in May 2012 also
aggravated Ms. Azam’s spine complaints.

[81]        
Dr. Regan based his opinion that her back was not injured in the
2009 accident on the fact there were no reported complaints of low back pain
for a number of months following the accident. However, as noted earlier, Ms. Azam
reported increased back pain about six weeks after the accident, not several
months as understood by Dr. Regan. Dr. Regan conceded that the
shorter the period of time between the accident and the report of pain, the
more likely it is that Ms. Azam injured her low back in the accident. Dr. Regan’s
opinion that the second accident was not causative of her ongoing chronic pain
was because she had reported low back pain prior to the 2010 accident.

[82]        
Dr. Regan was of the view that Ms. Azam should have recovered
from her neck and shoulder pain within three to four months of the accident,
however, her prognosis was guarded regarding her chronic back pain. Dr. Regan
recommended an exercise program and that Ms. Azam lose some weight.

[83]        
Dr. Jeanette Smith, an expert in the area of psychiatry, saw Ms. Azam
at the request of the defendants on September 17, 2012. Dr. Smith’s
opinion is that the personal stressors as a result of Ms. Azam’s
relationship with Mr. Jensen would have developed regardless of the
accidents. Mr. Jensen was living with another woman and would not end that
relationship. In Dr. Stewart’s opinion, given Ms. Azam’s personality,
in particular her extreme emotional reactivity to situations and the fact she
is in an abusive relationship, it is likely the level of emotional and physical
abuse would have led to similar levels of depression and emotional instability
even in the absence of the physical injuries she sustained in the motor vehicle
accident and associated pain.

[84]        
Dr. Smith agreed with Dr. Anderson that any cognitive difficulties
associated with the concussion from the first accident resolved within a few
months. Dr. Smith was of the view that Ms. Azam’s depressive symptoms
were well controlled by anti-depressants and she was not disabled from a psychiatric
point of view, as she was functioning at work and studying online when she was interviewed.

[85]        
Dr. Smith’s opinion is that Ms. Azam is more vulnerable to
experiencing depression but, due to her premorbid personality, it is likely she
was predisposed to emotional instability and depression while under stress. Dr. Smith
recommended Ms. Azam remain on anti-depressants, and attend 10-12 sessions
of psychological counselling.

[86]        
From a review of the medical evidence, I conclude that Ms. Azam
suffered a concussion, a moderate whiplash injury to her neck, and a fractured
shoulder in the first accident. As well, she suffered an injury to her low back.
She also had some minor bruises and scrapes which resolved quite quickly. At
the time of the 2009 accident, Ms. Azam had degeneration in her spine, and
had episodic back pain for the prior 10 years. In the 2010 accident, the
injuries she suffered in the 2009 accident were exacerbated, and she suffered
injuries to her knees and a fractured wrist.

[87]        
Ms. Azam subsequently suffered injuries to her neck, back and jaw
in the assaults on her by Mr. Jensen. As well, she injured her back in the
slip and fall in March 2013. Those injuries also exacerbated her symptoms. As
of the date of the trial, Ms. Azam continues to complain of pain in her
low back, neck and shoulders, as well as her right forearm. Her complaints
appear to be chronic in nature. Her most significant complaint is her low back
pain.

[88]        
As stated earlier, the defendants in the motor vehicle accidents assert
that Ms. Azam’s low back pain is not a result of either the 2009 or 2010 accidents.
While Dr. Regan states in his report that her low back was not directly
related to the first accident because of the time between the accident and her
reporting of the pain, his opinion is based on the fact there were no reported
complaints of low back pain for a number of months following the accident.

[89]        
However, Ms. Azam reported increased back pain at the end of
October 2009, approximately six weeks after the accident. As set out earlier, Dr. Regan
conceded that the shorter the period of time between the accident and the
report of pain, the more likely it is Ms. Azam injured her low back in the
accident. Dr. Regan’s opinion that the second accident was not causative
of her ongoing chronic pain was because she had reported low back pain prior to
the 2010 accident.

[90]        
Dr. Love, Dr. Stewart and Dr. Gouws were all of the view
that the delay in reporting the back pain did not mean that her back was not injured
in the first accident. Dr. Love pointed out that his notes indicated that Ms. Azam
reported increased pain in the low back that day. However, it is also clear
from the medical evidence that her back injury in the 2009 accident was not
that significant and was resolving at the time of the second accident. Dr. Love’s
evidence was that when he saw Ms. Azam prior to the 2010 accident, she did
not comment on any pain in her back until asked about it.

[91]        
As well, it is clear from the medical evidence that Ms. Azam
suffered a concussion with some cognitive problems after the first accident. The
issue is whether any ongoing psychological problems were caused or contributed
to by the accident, or are as a result of her relationship issues with Mr. Jensen.

[92]        
While Dr. Anderson was of the view that the deterioration of Ms. Azam’s
mood following the motor vehicle accidents was likely due to chronic pain, he
had not been advised of the extent of Ms. Azam and Mr. Jensen’s
relationship difficulties. As stated earlier, Dr. Anderson was of the view
that Ms. Azam likely had borderline personality traits prior to the
accident as indicated by her impulsivity and other behaviour.

[93]        
In my view, Dr. Stewart’s opinion that due to Ms. Azam’s
personality, in particular her extreme reactivity to situations, and the fact
she is in an abusive relationship, it is likely the level of emotional and
physical abuse would have led to similar levels of depression and emotional
instability even in the absence of the physical injures and associated pain
from the accidents, should be preferred in the circumstances.

[94]        
Dr. Stewart’s opinion is consistent with the evidence of Dr. Love.
Although Ms. Azam reported some moodiness in October 2009, Dr. Love
did not start treating her for any significant psychological problems until
January 2011, after her suicide attempt. Dr. Anderson agreed that he would
give more weight to her relationship problems than chronic pain as the cause of
the suicide attempt. The fact that Ms. Azam attempted suicide as a result
of her relationship problems was also consistent with the information she gave
to the police after the assault in May 2012.

[95]        
I accept Dr. Stewart’s opinion that Ms. Azam does not suffer
from any ongoing psychiatric or psychological disability as a result of the
accidents.

[96]        
In my view, the preponderance of the evidence establishes a temporal
connection between the accidents and Ms. Azam’s ongoing symptoms of neck
and back pain. As well, the first accident resulted in Ms. Azam’s
concussion and fractured scapula. The whiplash injuries Ms. Azam suffered
in the accidents contributed to her degenerative disc disease becoming chronically
symptomatic which has resulted in the symptoms she now suffers. However, she
was having episodic pain in her back for over 10 years prior to the
accidents. As well, the subsequent assaults and slip and fall also contributed
to the ongoing symptoms from her pre-existing degenerative condition in her
spine.

[97]        
In my opinion, Ms. Azam’s low back symptoms falls within the
crumbling skull rule enunciated in Athey, and any award must reflect
that.

[98]        
However, it is also my opinion that the psychological and psychiatric
problems Ms. Azam is suffering from are caused by her relationship
problems which exacerbated her pre-existing borderline personality traits, and were
not caused by the accidents.

Mitigation

[99]        
In the responses in the two motor vehicle actions, the defendants
pleaded Ms. Azam failed to take reasonable steps to mitigate her loss and
damage and failed to follow reasonable medical advice. However, they did not
argue the issue at trial.

[100]     There is
no question that every plaintiff has an obligation to take reasonable steps to
reduce the damages flowing from a tort. In order to be successful in
discharging the burden of proving that Ms. Azam has failed to mitigate, the
onus is on the defendants to establish that Ms. Azam failed to undertake a
recommended treatment, that by following the recommended treatment Ms. Azam
would have overcome the problem, and that the refusal to take the treatment was
unreasonable: Chiu v. Chiu, 2002 BCCA 618 at para. 57.

[101]     The burden
is on the defendants and they have not argued they have met it. Accordingly,
the defendants have not established that Ms. Azam failed to mitigate her
damages.

What is the Appropriate Award of General Damages for Pain and Suffering?

Applicable Law

[102]     A
plaintiff is entitled to reasonable damages for her pain and suffering. The
plaintiff should be placed in the same position she would have been if the
accident had not occurred, but not in a better position: Parypa v. Wickware,
1999 BCCA 88 at para. 29.

[103]    
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the
court noted that a non-pecuniary damages award will vary from case to case to
meet the specific circumstances of each case, and set out the factors to be
considered in making such an award as follows:

The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes: 

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

Plaintiff’s Position

[104]     Ms. Azam takes the position that the evidence establishes that
her life has changed dramatically as a result of her injuries. Her career
aspirations have been thwarted and she has been forced to significantly reduce
her hours. She has mostly lost the ability to participate in motorcycling which
was her passion prior to the accidents. She was a physically active person and
social person. Ms. Azam now spends her days off work recovering and
resting so that she is able to continue to work.

[105]     Ms. Azam says she has done her best to not let the pain get the
best of her, but despite her efforts she has plateaued in her recovery. She is
at risk for a worsening of her depression and she now has a personality
disorder which may interfere with her functioning in the future, depending on
stress levels. Ms. Azam says she has done everything she can to keep
working in the occupation that she loves despite her symptoms. Ms. Azam
has suffered and continues to suffer substantially.

[106]     Ms. Azam submits her evidence regarding her injuries and the
ongoing symptoms she suffers from should be accepted. Her evidence in that
regard was forthright, consistent and believable.

[107]     Ms. Azam
relies on Morlan v. Barrett, 2012 BCCA 66; Poirier v. Aubrey,
2010 BCCA 266; and Zylstra v. Hughes, 2001 BCCA 326, to support an award
of general damages in the amount of $125,000.

The Defendants’ Position

[108]     The
defendants in the two motor vehicle accidents assert that Ms. Azam’s
evidence regarding the long term effects of her injuries should not be accepted
because of inconsistencies on her evidence between direct and cross-examination
in the trial, and between her examination for discovery evidence and her
evidence at trial. As well, they submit that the description of her symptoms
and the fact she did not tell a number of the medical experts or her family
doctor about the extent of her relationship problems and the assaults is a good
indicator of the inherent unreliability of her evidence. As a result, the
defendants say that Ms. Azam’s evidence regarding the effects of her injuries
should be viewed very cautiously.

[109]     The
defendants rely on Chalmers v. Russell, 2010 BCSC 162; Bradshaw v.
Matwick, 2009 BCSC 564; Schroeder v. Shaw, 2008 BCSC 1757; and Simmavong
v. Haddock, 2012 BCSC 473, to support their argument that the appropriate
range for non-pecuniary damages is $60,000 to $85,000.

Application of the Law to the Facts

[110]     It is
clear that Ms. Azam was injured in both motor vehicle accidents. In the
first accident, she suffered a broken shoulder and a neck and back injury. In
the second accident, she suffered a broken wrist, injury to her knees and an
exacerbation of her pre-existing spine condition.

[111]     I accept she
does have chronic pain in her back which is exacerbated by activity; however, I
do not accept Ms. Azam’s evidence regarding the impact of her injuries. I
did not find Ms. Azam a particularly credible witness, and there is
evidence that she is able to function at a higher level than she testified to.

[112]     At trial, Ms. Azam
testified that she was incapacitated after the first accident. However, photographs
dated September 12, 2009, the day after the first accident, show both she
and Mr. Jensen in attendance at a bike-night event with other motorcycle
enthusiasts. The pictures show Ms. Azam with her arm in a sling, smiling
and smoking a cigarette.

[113]     In her
examination for discovery Ms. Azam stated that she did not ride a
motorcycle at all in 2010 after the second accident, either as a passenger or a
driver. However, at trial she admitted she rode her motorcycle after the
accident in 2010. The evidence is that she was photographed riding on the back
of a motorcycle, with Mr. Jensen driving, in June 2010, just two months
after the second accident. There are other photographs from June 30, 2010,
showing her smiling and dressed in leather motorcycle gear. Another photograph
shows her on July 14, 2010, wearing a leather jacket and sitting on a
motorcycle. She also admitted to arranging a motorcycle ride for her birthday
on October 2, 2010, to go to Squamish.

[114]     The
evidence at trial is also inconsistent with her statements to Dr. Stewart in
2012, that she was afraid to get back on a motorcycle after the second accident,
and that she had not been a passenger since then, and would never again be a
passenger.

[115]    
Ms. Azam’s attempts to explain that she did not understand the
question at the examination for discovery were not credible. The question was
straightforward:

Q When did you first start riding your motorcycle after the
second accident.

A. After my second accident? Like a year later.

Q. So you didn’t ride at all in2010?

A. No I couldn’t.

Q. And is that both as a rider and a passenger?

A. Yes.

[116]     Ms. Azam
denied telling Dr. Stewart she would never ride as a passenger again, but Dr. Stewart
confirmed she had provided the information contained in his report. I accept Dr. Stewart’s
evidence in that regard. Dr. Stewart testified the fact he put Ms. Azam’s
response to his question regarding whether she had been a passenger on a motorcycle
since the 2010 accident, in quotation marks in his report, indicates it was a
direct quote from her.

[117]     In my
view, the inconsistencies the defendants have identified are significant, and Ms. Azam’s
evidence regarding the ongoing impact of the injuries has to be viewed
cautiously.

[118]     I also do
not accept Ms. Azam’s evidence regarding the extent of her disabilities.
She was able to go to Europe in the spring of 2011. In January 2012, she was
working at three jobs. At the time Ms. Azam saw Dr. Stewart in August
2012, she was working more than full time hours although she was reporting
increased pain.

[119]     While Ms. Azam
reports she has had constant back pain that has not improved since February
2013 when she slipped on the ice, she obtained two jobs in Meadow Lake,
Saskatchewan, and was working full time at the hospital before a flare-up of her
back pain a few months ago.

[120]     In
physical examination, Dr. Stewart and Dr. Gouws both found that Ms. Azam’s
range of motion in her back was quite good, with the exception of her lumbar
spine.

[121]     There were
some friends and co-workers who testified regarding changes in Ms. Azam from
pre-accident to post-accident. However, none of those individuals have any ongoing
or regular contact with Ms. Azam.

[122]     Lakh
Khaira testified that he met Ms. Azam in high school, where they were
acquaintances. He got to know her as a friend after they went to the same
motorcycle school to get their licenses. While Ms. Azam lived in Vancouver,
he would see her fairly regularly on motorcycle rides and other activities. Mr. Khaira
was with Ms. Azam when the first accident occurred. He heard about the
second accident from Ms. Azam and visited her in Kelowna while Mr. Jensen
was in jail. Ms. Azam seemed to be agitated and riled up easily. Mr. Khaira
testified that she started gaining weight after the second accident and became
more emotional, and did not seem happy. However, he had not seen Ms. Azam
much since she moved to Kelowna. In my view, it is not surprising that Mr. Khaira
found Ms. Azam more emotional and unhappy when he visited Kelowna while Mr. Jensen
was in jail.

[123]     Neither
co-worker saw her after the accident. They testified they had not observed Ms. Azam
having any physical restrictions when they worked with her before the accident.

[124]     Darren
Smith, another friend who rode with Ms. Azam, met her in the spring of
2009. Prior to the first accident, he described Ms. Azam as healthy and
active. After the first accident she changed, but more so after the second
accident. Mr. Smith did not have much contact with Ms. Azam after she
moved to Kelowna, but he visited her there when Mr. Jensen was in jail.

[125]     As stated
earlier, Ms. Azam has not established that the ongoing psychiatric or
psychological problems she is suffering from are caused by the motor vehicle
accidents. However, she has established that the accidents caused physical
injuries, including to her low back, with ongoing chronic pain.

[126]     Having
considered the extent of the injuries, the fact that she is still having chronic
pain after the accident which flares up from time to time, the guarded
prognosis for full recovery, as well as the authorities I was provided, I am of
the view that the appropriate award for non-pecuniary damages would be $100,000,
if the accidents were the only cause of Ms. Azam’s ongoing symptoms.

[127]     However, Ms. Azam
must be put back in the position she would have been in if the two motor
vehicle accidents had not occurred. The evidence establishes that Ms. Azam
suffered from a pre-existing symptomatic spine condition which had caused her
periodic back pain in the 10 years prior to the first accident. Although
it was not symptomatic right before the first accident, is reasonable to infer Ms. Azam
would likely continue to suffer from periodic back pain, regardless of the accidents.
Having taken that into consideration, I am of the view that the appropriate
award for non-pecuniary damages is $85,000.

[128]     Of that amount,
$10,000 is attributable to the divisible injuries in the second motor vehicle
accident, consisting of Ms. Azam’s fractured wrist and injuries to her
knees.

What Amount, If Any, Should Be Awarded for the Loss of Past and Future
Earnings or Income Earning Capacity?

Past Loss of Income or Income Earning Capacity

[129]     Ms. Azam
advances a claim for past loss of income in the amount of $133,000, based on
the fact she would have continued full time in her position as a grocery clerk
at Save-On-Foods. Ms. Azam says her plan at the time of the 2009 accident
was to work full time as a grocery clerk.

[130]     The
defendants in the motor vehicle accidents take the position that the net past
loss income from the first accident is $5,416, and the potential loss from the
second accident is $53,336. The defendants submit that Ms. Azam’s maximum
net past income loss attributable to the two accidents is $58,753.

[131]     In Smith
v. Knudsen, 2004 BCCA 613, the court confirmed the legal
test for past loss of earning capacity and future loss of earning capacity is
the same. A plaintiff must prove that an injury had an effect on her
ability to earn income on a balance of probabilities, but once that has been
established, hypothetical events need not be proved on a balance of probabilities.
Rather, they are to be given weight based on their likelihood.

[132]     The plaintiff must prove on a balance of probabilities that the
cause of the past or future hypothetical event resulting in the loss was because
of the injuries the plaintiff sustained in the accidents: Smith; Athey
at para. 27; Perren v. Lalari, 2010 BCCA 140 at
para. 32; Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d
2011 BCCA 45.

[133]     In an action involving a motor vehicle accident, a plaintiff is only
entitled to recover the net amount of her damages: s. 98 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231; Gordon v. Lines, 2009 BCCA 106
at paras. 152-186.

[134]     As stated
earlier, Ms. Azam saw Dr. Weiss in December 2010, and he recommended a
gradual return to work, but she felt she was not ready at that point. As of
June 2011, Ms. Azam was advised there were no identifiable medical
contra-indications preventing her from returning to a sedentary position.

[135]     Dr. Remick
also recommended Ms. Azam return to work in June 2011.

[136]     Ms. Azam
then moved to Kelowna in October 2011, and began work in January 2012. The
defendants submit that the period between June and December 2011 should not be
allowed for income loss as Ms. Azam moved to Kelowna for lifestyle reasons,
and to improve her relationship with Mr. Jensen. The defendants also
submit some time should be deducted for recovery from her suicide attempt and
the March 2011 assault in which she was injured. The defendants submit any
income loss after January 2012 should not be attributed to the defendants.

[137]     In early
2013, Ms. Azam slipped on ice, which aggravated her back and caused her to
take time off work. The defendants submit that time is not attributable to
them. As well, the defendants say that Ms. Azam chose to move to Meadow
Lake, Saskatchewan, in July 2013, for a business opportunity. That did not work
out and she was able to obtain some part time employment at the Co-op pharmacy
and Meadow Lake hospital. At that time, Ms. Azam was working all of the
hours available to her. The defendants take the position that from the time Ms.
Azam moved to Meadow Lake her income loss is not attributable to the accidents,
but is a reflection of her choice to move to another province.

[138]     Ms. Azam’s
past income loss claim is based on the proposition she would continue to work
full time as a grocery clerk at Save-On-Foods. Based on the evidence, it is far
from clear that Ms. Azam would have continued to work as a grocery clerk
in Vancouver if the accidents had not occurred. The evidence is that prior to
the first accident she took an above average amount of time off work for
various illnesses and family reasons.

[139]     It appears
from the evidence that Ms. Azam places family concerns above work, in that
she has taken time off work when her father was ill, and when several of her
extended family have died or been ill. Although Ms. Azam asserts her move
to Kelowna was for economic reasons, there is evidence she moved there for
lifestyle reasons, i.e. because she liked it there and she thought it would
improve her relationship with Mr. Jensen. There is also evidence she moved
to Meadow Lake for family reasons, i.e. Mr. Jensen had an opportunity to
take over his father’s bakery. Although it did not work out as planned, the
couple has stayed there for employment opportunities for both of them.

[140]     Finally, the
evidence is that it was recommended she return to work in June 2011 in a
sedentary position, and she took no steps to find a job.

[141]     While I
agree that Ms. Azam has established a likelihood of a past loss of
capacity to earn income, I do not agree it is for the amount claimed by her.

[142]     Having
considered all of the evidence, including the fact that Ms. Azam could
have pursued employment after June 2011, I am of the view that appropriate
award for loss of past income and income earning capacity is the net amount of
$65,000.

Loss of Future Income or Income Earning Capacity

[143]     I turn
next to the issue of future loss of earning capacity. Ms. Azam advances a
claim for $325,000 under this head of damages on the basis she would have worked
full time at Save-On-Foods. She is now limited in her ability to earn income
from physically demanding jobs. Ms. Azam takes the position her residual
ability to earn income will result in an annual loss of earning of approximately
$15,000 per year. The current value of that loss is $350,640. The amount being
claimed takes into account positive and negative contingencies and looking at
her loss as an assessment, not an arithmetical calculation.

[144]     The
defendants in the motor vehicle accidents take the position that the evidence
supports a finding that if Ms. Azam’s back pain is attributable to the
accidents, then her loss of income earning should be assessed on the capital
asset approach, with an award in the range equivalent to one year’s income, or
$45,000.

[145]    
In Perren, the court noted that the first inquiry in dealing with
a claim of this nature is whether there is a substantial possibility of future
income loss. The court stated:

[32] A plaintiff must always prove,
as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, 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, as in Steenblok, or a capital asset
approach, as in Brown. The former approach will be more useful when the
loss is more easily measurable, as it was in Steenblok. The latter
approach will be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there
is a substantial possibility of a future loss of income despite having returned
to his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[Emphasis in the
original.]

[146]    
In Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144, the court discussed the assessment of an award for a loss of future
income as follows:

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

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

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

[147]     Ms. Azam
asserts that she has demonstrated there is a real and substantial possibility
of a future event leading to an income loss. She says based on the expert
evidence, it is apparent she has functional impairments which will likely
impact her ability to perform any physical jobs, and in particular the physical
aspects of any grocery clerk or pharmacy assistant job. Ms. Azam points to
the fact both Dr. Gouws and Louis Craig, a functional capacity evaluator,
concluded that as a result of her neck, back and shoulder problems, she has
diminished capacities.

[148]     Ms. Azam
submits the reason she moved to Kelowna was economic in nature. However, as set
out above, Ms. Azam’s evidence in direct was she moved to Kelowna for family
and lifestyle reasons. When asked what led her to the decision to move, her
evidence was that she and Mr. Jensen were fighting and had tested their
landlady’s patience. They were on the verge of eviction and needed more space.
She liked Kelowna and they were able to rent a carriage house overlooking the
lake.

[149]      I do not
agree with the submission that Ms. Azam has demonstrated significant determination
in returning to work. Despite recommendations that she return to work in June
2011 to a more sedentary job, there is no evidence that she took any steps to
find employment until her long-term disability had run out.

[150]     However,
given the expert evidence that Ms. Azam’s back and neck problems are
chronic and the guarded prognosis, I find she has established a real and
substantial possibility she is not able to return to her former employment as a
grocery store clerk, or any other physically demanding job.

[151]    
Turning next to the assessment of her loss, it is my view that since Ms. Azam
is able to work at other positions, but has chosen not to work continuously, the
earnings approach is not appropriate, and the capital asset approach should be
used.

[152]    
In Perren at para. 11, the court confirmed that the approach to
be taken for a future loss of earning capacity in situations where the loss,
though proven, is not measurable in a pecuniary way, is the one set out in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) at p. 4:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

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.

[153]     In
conducting the analysis under this head, the Court then has to consider the
contingences, both positive and negative, which are applicable in arriving at a
final sum.

[154]     In my
view, Ms. Azam has established that she has been rendered less capable
overall from earning income from all types of employment, she is less
marketable and attractive as an employee, and she may not be able to take
advantage of all job opportunities. As well, it was evident from her testimony
that Ms. Azam is less valuable to herself as a result of her diminished
capacity.

[155]     However,
there are other contingencies to be factored in. As stated earlier, it is
likely that Ms. Azam would have had periodic back pain regardless of the
accidents, which would likely have limited her ability to work at physical jobs
even if the accidents had not occurred.

[156]     The
evidence is that Ms. Azam is able to work as a pharmacy technician in a
hospital setting, and has periodically worked full time since the accidents.
She is currently working at Meadow Lake Hospital, earning $34 per hour, which
is higher than her hourly rate as a grocery clerk if she had remained at
Save-On-Foods. Ms. Azam plans to complete the pharmacy bridging program
which will give her the necessary certification to remain qualified as a
pharmacy technician in British Columbia. Her evidence is that she and Mr. Jensen
hope to move back to the Lower Mainland in the future.

[157]     Having
considered all of the evidence, including the fact that some of Ms. Azam’s
loss of income earning capacity is due to factors unrelated to the injuries
sustained in the accident, it is my view that the appropriate award for future
loss of earning capacity is $100,000.

Cost of Future Care

[158]     Ms. Azam
advances a claim for cost of future care in the amount of $231,745, based on a
report prepared by Tracy Berry, an expert in the area of occupational therapy.

[159]     The
defendants in the motor vehicle accidents submit that many of the items
contained in Ms. Berry’s report are neither medically justified nor
reasonable. They take the position that the appropriate award for cost of
future care ranges from $9,124 to $22,962.50.

[160]     Cost of
future care is established if there is a medical justification for the claim,
and the claim is reasonable: Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63.

[161]     The opinion of a physician is not necessary to ground an award for
cost of future care: Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144 at paras. 36-49.

[162]     Measures
that provide some solace but are not likely to result in medical improvement
ought to be compensated for under the head of general damages rather than an
expense that is compensable as a cost of future care: Harrington v. Sangha,
2011 BCSC 1035 at para. 153. As well, services that a plaintiff has not
used and not sought out in the past should not be awarded as the plaintiff will
be unlikely to avail herself of them: Izony v. Weidlich, 2006 BCSC 1315
at paras. 73-74.

[163]     Ms. Azam seeks the
following under this head of damages:

[164]     The
defendants agree that Ms. Azam should attend a pain clinic. However, the
defendants say the appropriate cost for the pain clinic in Saskatchewan is
$1,200 to $1,650 for her transportation and meals, as the pain clinic itself is
publicly funded. However, there is no evidence that Ms. Azam can attend
that pain clinic, or evidence about the cost. The only evidence of the cost for
a pain clinic is the discounted amount being claimed by Ms. Azam of
$10,000. Accordingly, I am of the view the amount of $10,000 is an appropriate
award for this item.

[165]     The
defendants agree that Ms. Azam should attend for some psychological
counselling, but say $1,200 to $1,800 is the appropriate amount for the 12 to
18 sessions recommended by Dr. Smith. Having found that the accidents
did not cause Ms. Azam’s ongoing psychological problems, it is my view the
appropriate amount for this item is $1,800, in order to assist Ms. Azam in
dealing with her chronic pain problems.

[166]     Ms. Azam
puts forwards claims for kinesiology, and yoga or Pilates. Ms. Azam’s
evidence is that she receives community physiotherapy at no cost. She testified
her current physiotherapy consists of performing daily exercises. Ms. Berry
recommends yoga and Pilates, but Ms. Azam has not sought out either form
of exercise since the accidents. In my view, some allowance should be made for
exercise since all the experts have recommended it. In my view, the appropriate
award under this head is $1,500, which allows her to have some training in
exercises from a kinesiologist and a portion of a gym pass.

[167]     Ms. Azam
is claiming the costs of various medications. At present she is taking minimal
medication because she is pregnant. Most of the experts recommend that Ms. Azam
should avoid narcotic-type pain medications, given their addictive qualities. The
defendants submit that the appropriate amount for medications in the future is
in the range of $1,464 to $2,928. Dr. Smith agrees Ms. Azam will
likely need ongoing anti-depressant medication indefinitely. However, as
earlier stated, Ms. Azam’s ongoing psychological problems are not caused
by the accidents. In my view, an appropriate amount for future medication,
including pain killers and analgesics, is $7,500.

[168]     Ms. Azam
is advancing a claim for orthotics. Dr. Stewart testified Ms. Azam
has developed plantar fasciitis secondary to her injuries as a result of her
weight gain. However, the evidence is Ms. Azam had flat feet and used
orthotics prior to the accident. As a result, I find this item is not
reasonably required as a result of the accidents.

[169]     Ms. Azam
advances a claim for homemaking in the amount of $150,000. Ms. Azam
testified that she and Mr. Jensen share many of the household tasks, and
she continues to have difficulty with vacuuming, cleaning the toilet and other
household chores that have heavier physical demands. The defendants submit that
some recognition must be made for Ms. Azam’s actual circumstances which
are that she and Mr. Jensen share the household chores. They point to the
fact that Ms. Azam has not hired anyone to assist her since the first accident,
even during the times she has been working. The defendants submit the amount of
$7,500 is appropriate under this heading.

[170]     While
there is insufficient evidence to justify a homemaking award in the amount
claimed, it is my view some award should be made to assist Ms. Azam in the
heavier chores. Under this head of damage, I am of the view that an award of $15,000
is appropriate.

[171]     Ms. Azam
also advances a claim for child care in the future. Dr. Stewart has
provided an opinion that assistance with child care may be required until a
child is two years old. Ms. Berry recommends 20 hours per week or
$24,960 for two children. However, as argued by the defendants, the amount
being claimed does not take into account any assistance from the father. It is
also unclear that Ms. Azam will have two children, as she is just pregnant
with her first. In my view, it is likely that Ms. Azam will require some
assistance in this regard. An appropriate amount to award under this heading is
$7,500.

[172]     Having
considered all of the evidence, I have concluded that the appropriate award for
future care for both one time and annualized expenses is the amount of $43,300.

Special Damages

[173]     Special
damages have been agreed to in the amount of $4,049.50.

Conclusion

[174]     In
summary, I have awarded the following amounts payable jointly and severally by Mr. Bilaya
and Mr. Jensen as the damages suffered in the two motor vehicle accidents
are indivisible, with the exception of the wrist injury and the injury to Ms. Azam’s
knees:

[175]     Ms. Azam
is also entitled to $10,000 in non-pecuniary damages for the divisible injuries
arising from the second motor vehicle accident against Mr. Jensen, for a
total damage award from the two motor vehicle accidents of $296,749.50.

[176]     I will leave
it to the parties to deal with any tax implications. If they cannot agree, they
are liberty to make submissions. Ms. Azam is entitled to pre-judgment
interest on both the past loss of income and the special damages. As well, Ms. Azam
is entitled to her costs at Scale B in the two actions arising out of the
motor vehicle accidents, subject to submissions.

[177]     Ms. Azam
is also entitled to judgment against Mr. Jensen for assault. Ms. Azam
takes the position that the appropriate award for general damages is $10,000,
for the swollen jaw and bruising that resulted from the assaults. As well, she
seeks recovery of $1,811.53 under the Health Care Costs Recovery Act,
S.B.C. 2008, c. 27.

[178]     Ms. Azam
made no submissions regarding what, if any, amount should be awarded for
psychological problems stemming from the assaults. As set out earlier, I
accepted Dr. Stewart’s opinion that the likely cause of Ms. Azam’s ongoing
psychological problems is the conflict in her relationship and the assaults,
and was not attributable to either motor vehicle accident. Accordingly, I make
no award for general damages in regards to Ms. Azam’s ongoing psychological
complaints.

[179]     Ms. Azam
is entitled to the amount of $10,000 for non-pecuniary damages arising from the
divisible injuries, which are the physical injuries of a swollen jaw, and
bruising.

[180]     As well,
she is entitled to the amount of $1,811.53 for her health care costs associated
with the assaults. Finally, Ms. Azam is entitled to costs against Mr. Jensen
in the action for assault at Scale B.

“Gerow
J.”