IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140904

Docket: M106254

Registry: Vancouver

Between:

Ashraf Rajan

Plaintiff

And

Maurice Hudon

Defendant

Docket: M114232

Registry: Vancouver

Between:

Ashraf Rajan

Plaintiff

And

Anna Marie
Hutchins and Tyler John Hutchins

Defendants

Docket: M114233

Registry: Vancouver

Between:

Ashraf Rajan

Plaintiff

And

Kulwinder Kaur
Bains

Defendant

Before:
The Honourable Mr. Justice Pearlman

Reasons for Judgment

INTRODUCTION

[1]            
This is an assessment of damages for personal injuries sustained by the
plaintiff Ashraf Rajan in three motor vehicle accidents.  The plaintiff is a 44-year-old
operating room nurse.  She is married and has two children, a 14-year-old boy,
and an 11-year-old daughter.

[2]            
The first accident occurred on February 10, 2009 when a vehicle operated
by the defendant Maurice Hudon rear-ended the plaintiff.  The plaintiff claims
that she suffered whiplash injuries to the neck, upper back and posterior right
shoulder and post-traumatic headaches, and lost five months’ income as a result
of this accident.

[3]            
On May 18, 2010, the plaintiff was involved in the second accident when
she was rear-ended by a vehicle driven by the defendant Kulwinder Kaur Bains.  Ms. Rajan
says she suffered an aggravation of the whiplash injuries she sustained in the
first accident, and that she was disabled from work for about six weeks
following the second accident.

[4]            
The third accident took place on September 17, 2010, as the plaintiff
was driving to work at Burnaby Hospital.  The defendant, Tyler Hutchins, turned
left in front of the plaintiff’s vehicle, resulting in the front end of the
plaintiff’s vehicle striking the rear passenger side of the defendant’s
vehicle.  The plaintiff claims that in addition to aggravating her neck, upper
back and right shoulder problems, the third collision caused her to develop
chronic right shoulder dysfunction, right upper limb functional thoracic outlet
syndrome, a chronic soft tissue injury to the posterior lumbar-sacral area and
injuries to her right hip.

[5]            
 The plaintiff says that as a result of the defendants’ negligence, she
is disabled from employment as an operating room nurse, and suffers from
chronic pain, anxiety, symptoms of depression and emotional trauma.

[6]            
Liability is not in issue.  Each of the defendants has admitted that the
respective accidents were caused by their negligence.

ISSUES

[7]            
The main issues are:

·      
the nature and extent of the
injuries to the plaintiff caused or contributed to by the negligence of the
defendants;

·      
whether the plaintiff’s injuries
are divisible or indivisible for the purposes of assessing damages;

·      
the assessment of damages for pain
and suffering and loss of enjoyment of life, past and future loss of earning
capacity, costs of future care and special damages;

·      
whether the plaintiff has failed
to mitigate her damages.

[8]            
In order to determine these issues, it will also be necessary to make
findings concerning the credibility and reliability of the plaintiff’s evidence.

BACKGROUND

The Plaintiff’s Original Position

[9]            
Ms. Rajan immigrated to Canada from Tanzania in 1974.  The
plaintiff graduated from high school in 1988, completed a two-year diploma in
nursing in 1993 and graduated from the University of Victoria with a Bachelor
of Science degree in nursing in 1995.  Ms. Rajan was certified as an
operating room nurse at St. Paul’s Hospital in 1997.

[10]        
The plaintiff and her husband, Galib Rajan married in 1998.  Their two
children were born in 2000 and 2003.  Between 1997 and 2006, aside from time
off for maternity leave following the birth of each child, the plaintiff worked
initially as an acute care nurse, and later as an operating room nurse.  From
year to year she held various part-time positions that ranged from .25 to .75
of a full-time position.

[11]        
The plaintiff was hired at Burnaby General Hospital in 2006, as a casual
employee, working as an operating room nurse.  In 2007, Ms. Rajan applied
for and obtained a regular .5 part-time position as a booking nurse at Burnaby
General.  She earned an annual income of $26,100 in 2007.

[12]        
In 2008, Ms. Rajan earned an annual salary of $36,105 from Burnaby
General working two 7.5 hour shifts one week, and three 7.5 hour shifts the
second week as a booking nurse.

[13]        
When working as an operating room nurse, the plaintiff required the
ability to lift, bend, reach and stretch in order to perform a variety of
functions, including preparing the operating room for surgery, moving equipment
into the operating room, assisting with lifting and repositioning the patient
during surgery and using retractors to pull parts of the patient’s anatomy out
of the way while the surgeon operated.

[14]        
The tasks of the booking nurse position were physically less demanding. 
As a booking nurse, the plaintiff scheduled surgery for the operating rooms,
reviewed patients’ charts, ensured all the required equipment was available for
scheduled surgeries, ordered tests and obtained required supplies for the operating
rooms.  When working shifts in the booking office, the plaintiff was required
to use a computer and telephone on a regular basis, and to move back and forth
between the operating room, booking office and surgical wards.  On occasion, she
was called into the operating room to help out with surgery.

[15]        
The plaintiff testified that before the first motor vehicle accident,
she planned that when her daughter entered grade one in September 2009, she would
increase her hours from half-time to three-quarter time and then to full-time
in September, 2010.  At the time of the first motor vehicle accident, the
plaintiff was still employed in her half-time position as a booking nurse at
Burnaby General Hospital working three shifts one week and two shifts the following
week.  The plaintiff’s longer term plan was to obtain a Master of Nursing
degree and become a nurse practitioner.  She testified nurse practitioners earn
approximately $90,000 per annum.

[16]        
Ms. Rajan was in generally good health before the first motor vehicle
accident.  She had no significant history of neck, back, shoulder or hip
injuries or pain.  The plaintiff had recurrent gastritis, and was blind in her left
eye since birth.  The lack of vision in her left eye did not interfere with her
driving or adversely affect either her work as a nurse or her housekeeping
activities.

[17]        
Ms. Rajan suffered intermittently from headaches affecting the left
side of her head.  The plaintiff testified these headaches disappeared
following her hysterectomy in June 2009.

[18]        
The plaintiff testified that before the accidents she did the laundry,
cooking, cleaning and gardening.  She enjoyed cooking and prepared meals for
her husband’s extended family every two weeks.  Before the accidents, the
plaintiff devoted three to four hours a week to cleaning and maintained an
immaculate home.

[19]        
Before the first motor vehicle accident, the plaintiff did not
participate in regular sports or recreational activities but enjoyed walking
with her husband, playing with her children, swimming and going to the park
with them.

[20]        
Ms. Rajan comes from a family of devout Ismaili Muslims.  Before
the accidents, she took the children to Mosque two to three times a week and
participated in various volunteer activities at the Mosque, in the community,
and at her children’s school.

[21]        
Ms. Rajan was dedicated to her career as a nurse.  She closely
identified with her work, her faith, and her volunteer activities in the
community, which included serving as a soccer team manager and as a “class mum”
at her children’s school.

The Accidents

[22]        
The first accident occurred on February 10, 2009 while the plaintiff was
driving home from a job interview at the British Columbia Institute of
Technology.  She was travelling on Canada Way, heading toward New Westminster. 
She had stopped her vehicle when it was struck from behind.  The plaintiff was
wearing her seatbelt and the driver’s seat was equipped with a headrest.  The
plaintiff described the impact of the collision as moderate, remembered her
upper body and head going forward, and then her head striking the headrest. 
The rear bumper of the plaintiff’s 2004 Honda Accord sustained minor damage,
which cost $781 to repair.

[23]        
The second accident occurred on May 18, 2010.  The plaintiff was
travelling on Scott Road in the slow lane, on her way home.  She was driving
her brother’s 2004 Toyota Matrix, and had stopped when a vehicle operated by
the second defendant struck her car from behind.  The plaintiff described the
impact of the second collision as mild compared to the first accident.  Her
vehicle was not pushed into the vehicle ahead.  After exchanging contact
information with the driver of the other vehicle, the plaintiff continued on
her way.

[24]        
The third accident occurred at approximately 6:30 a.m. on September 17,
2010 while the plaintiff was on her way to work at the Burnaby General
Hospital.  The defendant, Tyler Hutchins, made a left turn in front of the
plaintiff’s vehicle.  She applied her brakes and attempted to avoid a
collision, however the front left side of her vehicle struck the rear passenger
side of the defendant Hutchins’ vehicle.  The plaintiff described the impact as
severe.  She testified that her upper body swerved to the left, while at the
same time, the lower part of her body swerved to the right and said that her
seatbelt buckle lodged in her right hip.  After the collision, the plaintiff
was able to move her vehicle to the curb lane, get out of her car and check to
see if the driver of the other vehicle was all right.  The plaintiff’s vehicle
required repairs totalling $5,737.74.

[25]        
Ms. Rajan testified that in the first accident she suffered
injuries to her neck, upper back, middle back, right shoulder, and a minor
injury to her low back which resolved fairly quickly.  She also suffered from
headaches due to neck pain on the right side.  The plaintiff said her shoulder
pain was exclusively on the right side.

[26]        
The plaintiff testified that for the first three weeks following the
first accident, she experienced very acute pain, was very stiff and sore and
took anti-inflammatories.  When the pain began to abate, she started
physiotherapy, initially at Sungod, and beginning in April 2009 at the Canadian
Back Institute (CBI).  At CBI, the plaintiff received intra muscular
stimulation which involved insertion of needles into muscles at various trigger
points.  She described the procedure as very painful.  She received this
treatment following both the first and third motor vehicle accidents.  In all,
the plaintiff attended 100 physiotherapy sessions at CBI between April 2009 and
April 2012 for the treatment of soft tissue injuries she sustained in the three
accidents.

[27]        
On February 11, 2009, the day following the first accident, Ms. Rajan
attempted to return to work, but as a result of her injuries was unable to
complete her shift and went home.  She remained off work until September 2009.

[28]        
In April 2009, as a result of a restructuring by the Fraser Health
Authority, the plaintiff received notice of displacement when her employer
terminated the booking nurse positions.  Her displacement was delayed until she
was medically cleared to return to work, at which time she moved from her .5
regular part-time position to a casual position as an operating room nurse.

[29]        
Ms. Rajan began her graduated return to work at Burnaby General on
September 15, 2009 and returned to her pre-accident hours of work by October
30, 2009.  The plaintiff was off work for seven months following the first
accident.  However, because she would have lost two months’ work in any event as
a result of her hysterectomy in June 2009, Ms. Rajan has limited her claim
for income lost between the dates of the first and second accidents to five
months.

[30]        
The plaintiff estimated that by the time of the second accident she was
90 to 95% recovered from the injuries she suffered in the first accident.

[31]        
In March 2010, Ms. Rajan applied for and obtained employment in a
casual position as an operating nurse at Valley Surgical, a private cosmetic
surgery facility.

[32]        
Before the second accident, the plaintiff was working two shifts a week,
divided between Burnaby General and Valley Surgical.

[33]        
Ms. Rajan testified that in the second accident she reinjured the
right side of her neck, her right upper and middle back, and right shoulder.  She
testified that immediately following the second accident, she felt pain on the
right side at the back of her shoulder.

[34]        
The plaintiff was off work for six weeks following the accident of May
18, 2010.  On July 8, 2010, she returned to work at Valley Surgical, where her
employer informally accommodated her by scheduling her for shorter and lighter
surgical procedures.  Ms. Rajan said it took her longer than she expected
to recover from the second accident and that due to the heavier requirements of
the job at Burnaby General, she only worked one shift there on September 10,
2010 before the third motor vehicle accident.

[35]        
Ms. Rajan testified in her direct examination that before the third
accident she felt she had recovered about 80% from the second accident.  She
still experienced headaches, but they had become much less frequent.  Her upper
back and neck were still symptomatic with increased activity.

[36]        
The plaintiff testified that in the third accident, she suffered
injuries to her right neck, right upper back and middle back, injury to her
right shoulder to a greater degree than any of the previous accidents, lower
back pain, and a new injury to her right hip.  Since the third accident, she
suffers from anxiety that she may be injured again while driving.  The
plaintiff testified that her right shoulder and right hip bother her the most. 
She complains of sudden throbbing pain in the right shoulder with sharp pains
shooting down her right arm to her fingers.  If she raises her arm for too
long, she experiences pins and needles in that arm.  Ms. Rajan said that
her right shoulder numbness and radiating pain started after the third
accident.  She experiences pain in her right lateral hip and pain radiating
from her hip down her leg if she walks, stands or sits for too long.  The
plaintiff had never experienced these symptoms before the third motor vehicle
accident.

[37]        
The plaintiff went off work immediately following the third accident. 
She returned to Valley Surgical about 12 months later, working one day per
week.  Ms. Rajan has never returned to work at Burnaby General.

[38]        
Ms. Rajan’s treatment following the third accident included, in
addition to active rehabilitation therapy at CBI, 20 sessions of massage
therapy and 13 chiropractic treatments.

[39]        
In January 2011, Ms. Rajan underwent surgery for the removal of her
blind eye, which resulted in complications requiring further surgical repair. 
On November 9, 2011, her father passed away.  Ms. Rajan testified
that Ismaili culture and tradition requires that when a family member passes
away, there should be no major change to his house or business for a year. 
Accordingly, she and her brothers planned to continue and slowly wind down
their father’s photocopying business over the 12 months following his
death.  In addition to continuing to work one shift a week at Valley Surgical,
the plaintiff worked five hours a day, three days a week, in the photocopy shop
until the family closed the retail store and moved what remained of the
business to her mother’s home in March 2013.

[40]        
As a result of her unrelated eye surgeries and the time she devoted to
her father’s business, the plaintiff claims no past income loss for 2011 or
2012.

[41]        
The plaintiff testified that overall, her symptoms since the third
accident have improved slightly, but she believed that they have plateaued.

CREDIBILITY AND
RELIABILITY OF PLAINTIFF’S EVIDENCE

[42]        
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186,
as follows:

Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[43]        
If the plaintiff’s account of his or her change in physical, mental, and
or emotional state as a result of the accident is not convincing, then the
hypothesis upon which any expert opinions rest will be undermined: Samuel
v. Chrysler Credit Canada Ltd., 2007 BCCA 431, at paras. 15, 49-50.

[44]        
The defendants submit that there are numerous discrepancies between the
plaintiff’s testimony at trial and her discovery evidence, and in her reporting
to the various medical experts who examined or treated her that undermine both
her credibility and her reliability as a witness.

[45]        
Some of the discrepancies identified by the defendants were, in my view,
insignificant.  For example, on her direct examination the plaintiff testified
that she was 80% recovered from the injuries sustained in the second accident
by the time of her third accident.  In cross-examination, Ms. Rajan agreed
that she told Dr. Craig that she was 80 to 85% recovered from the pain or
discomfort of the second accident by the time the third accident occurred.  On
either version, the plaintiff had made a substantial, but not full recovery
from the second accident by the time of the third event.

[46]        
The defendants also referred to inconsistencies in the plaintiff’s
answers to identical questions on the Pain Catastrophizing Scale tests
administered by Dr. Hunt in July 2012 and by Dr. Brooks one month
later.  In my view, the deviations in the plaintiff’s scoring simply reflect
the subjective nature of this test and the likelihood that the plaintiff’s
perception of her level of pain and discomfort may vary from day to day.  As
Smith J. observed in Edmondson v. Payer, [2011] B.C.J. No. 139 at para. 35,
“(i)nconsistencies are almost inevitable because few people, when asked to
describe their condition on numerous occasions, will use exactly the same words
or emphasis each time”.

[47]        
Some discrepancies are to be expected when a plaintiff who experiences
chronic pain is asked not only to report on her condition to different medical
practitioners at different times, but also to testify on discovery and at trial
about the symptoms she experienced at various times in the past.

[48]        
 However, there are more significant discrepancies which call into
question the reliability of the plaintiff’s evidence concerning the extent of
her disabilities.  In her functional capacity evaluation, the plaintiff
completed a questionnaire in which she rated her capacity to perform 50 routine
physical activities involving spinal function.  Ms. Rajan reported that
she was unable to perform 31 out of 50 of those activities, which included
pushing a vacuum, lifting 10 pounds from the floor and carrying two 10-pound
bags of groceries.  Ms. Louise Craig, the occupational therapist who
performed the functional capacity evaluation, reported that Ms. Rajan
perceived herself to be in the bottom 6^th percentile of all disabled
persons, which would place her level of functioning at “below sedentary”.  On
testing the plaintiff’s functional capacity, Ms. Craig found that Ms. Rajan
demonstrated the ability to tolerate occasional light to low end of medium
physical activity.  As Ms. Craig acknowledged in cross-examination, the
plaintiff significantly under-estimated her capacity to perform physical
activities.

[49]        
In her cross-examination, the Fraser Health Authority operating nurse
job demands analysis form was put to Ms. Rajan.  The plaintiff confirmed
this document described the physical demands of her position at Burnaby
Hospital.  The physical demands listed include frequent walking (34-66% of the
shift) within the surgical complex, typically for short distances of between
one and five metres at a time, and frequent standing during surgical procedures. 
Sitting "is rare to occasional" (0-33% of the shift) and static
positioning is "occasional to frequent" (6-66%of the shift).  Static
positioning involves standing or sitting while assisting with surgical
procedures and may require the nurse to adopt awkward, extended and sustained
postures depending on the task, the surgical procedure and characteristics of
the patient.  Crouching and squatting is "occasional" (6-33%), as are
overhead reaching and various handgrips.

[50]        
The plaintiff’s physical abilities, as tested and assessed by Ms. Craig
on her functional capacity evaluation roughly correspond to many of the
physical demands of the operating room nurse position as described in the
Fraser Health Authority job description.  Ms. Craig observed that the
plaintiff had a "functionally normal range of motion” and demonstrated a
tolerance for light to low end of medium physical activity related to strength
and body positioning.  The plaintiff demonstrated she was able to tolerate over
one and a half hours of continuous sitting, with breaks at 45 to
60 minutes to manage her symptoms, and that she was able to tolerate
occasional to frequent standing.  She was able to tolerate occasional walking
and had the ability to perform overhead reaching on an occasional basis with
some increase in her symptoms.  Ms. Rajan was able to tolerate sustained
independent stooping, occasional leaning and occasional crouching for short
intervals.  She demonstrated normal grip strength and manual dexterity.

[51]        
During her assessment, the plaintiff demonstrated that she was able to
perform many of the physical functions of the operating room nurse position at
Burnaby Hospital.  However, Ms. Craig reported that on the day after the
assessment Ms. Rajan complained of neck, mid-back and right hip pain, and
that she was unable to lift her right arm above her head.

[52]        
Ms. Craig concluded that her assessment findings and clinical
observations generally supported the plaintiff’s subjective reports of pain,
although Ms. Rajan under-estimated her strength capacity.

[53]        
The plaintiff’s perception of her disability is also not congruent with
her usual daily activities, as reported to Ms. Craig on August 10, 2012.  Ms. Rajan
described her day as beginning at 6:30 a.m. when she got up, made the
children’s breakfasts and lunches and then drove them to school, checked on her
mother and worked at her father’s business between 9:30 a.m. and 2:30 p.m.  She
then picked up the children, supervised their homework, cooked dinner, did the
laundry and took the children to soccer or other activities before putting them
to bed by 9:00 p.m.

[54]        
In her direct testimony, the plaintiff suggested that the loss of her
father was only a temporary emotional problem and that the principal source of
her depression was the third motor vehicle accident.  In September 2012, Ms. Rajan
reported to Mr. Naill Trainor, the plaintiff’s expert in vocational
rehabilitation, that she was depressed as a result of the death of her father. 
On cross-examination, Ms. Rajan agreed that the death of her father was a
traumatic event which had taken an emotional toll on her.  I find that in her
direct examination, the plaintiff downplayed the impact upon her of the sudden
loss of her father, and its contribution to her symptoms of depression.

[55]        
In direct examination, the plaintiff said that after her father’s death,
she assisted with the operation of his photocopy business.  Ms. Rajan said
she answered phone calls and e-mails, did clerical work and some light
photocopying, while her two brothers performed most of the heavy work.

[56]        
On cross-examination, the plaintiff agreed that the evidence she had
given on her examination for discovery of June 7, 2012 at question 869, where
she said she was basically running the business, did the administration,
managed all of the accounts, ran the orders and “I do it all”, was true.  Ms. Rajan
also reported to her general practitioner, Dr. Christine Jones, that her
work in her father’s store included lifting, standing and a regular five-hour
shift.  Again, I find that in her direct examination, the plaintiff tended to
minimize the level of physical activity she performed while she assisted with
the operation of her late father’s business.

[57]        
In her direct testimony, Ms. Rajan said that in 2005 and 2006, and
through 2008 she worked half-time hours as a nurse.  On cross-examination, she
agreed that the income she reported in her tax returns for 2005 and 2006 was
closer to one-quarter time employment.

[58]        
On direct examination, Ms. Rajan said that during the second
accident she felt her upper body and neck move forward and then back, and that
her head struck the headrest.

[59]        
Ms. Rajan agreed in cross-examination that she told Dr. Craig
that she had not hit her head in the second accident.  She also testified that
she reported to both Dr. Brooks and Louise Craig that she was pushed
forward and then came back into her seat during the second accident.   On
cross-examination, questions 100 through 106 from her examination for discovery
of November 9, 2011 were put to the plaintiff.  On her discovery the plaintiff
gave evidence that she did not remember what happened to her body inside the
vehicle in the second accident; that no part of her body struck any part of the
interior of the vehicle; and that she did not remember her head hitting the
headrest.

[60]        
Ms. Rajan confirmed that those answers were true and agreed that
her recollection of the second accident would have been much clearer in
November 2011 than at the time of trial.

[61]        
In her direct testimony, Ms. Rajan said that she had not returned
to Burnaby Hospital as an operating room nurse as a result of the injuries she
suffered in the accidents.

[62]        
On cross-examination, the following questions and answers were put to
her from her examination for discovery of June 7, 2012:

928     Q       I think that the last time we spoke
your plan was to be a full-time nurse, partially at Valley because of the pay?

A        Yes.

929     Q       But also partially at Burnaby Hospital
for various other ancillary benefits?

A        Correct.

930     Q       That’s still the plan?

A        Correct.

931     Q       But eventually it’s just been
postponed dealing with your father’s business?

A        Dealing with my father’s business, yes.

932     Q       Timeline of the return to Burnaby
Hospital, do you have any idea when that would be?

A        No, I don’t. I’m hoping it will be within the
next few weeks to month, but I — I begin my orientation.

933     Q       Obviously if you’re working three days
at your father’s business and you’re working one to two days at Valley Medical,
there isn’t going to be much time for you until your father’s business closes
to return to Burnaby Hospital, correct?

A        Correct.

934     Q       But then once your father’s business
— I shouldn’t say closes, scales down, correct?

A        Correct.

935     Q       Then the plan would be to fill that
time with Burnaby Hospital?

A        Correct.

936     Q       Do you have to pass any tests to get
back to working with Burnaby Hospital?

A        No.

[63]        
The plaintiff confirmed that her answers were true “as of June 2012” and
that at that time she was hoping to return to work at Burnaby Hospital within
the next few weeks.  She said that her return to Burnaby Hospital had been
postponed because she had to deal with her father’s business.

[64]        
Ms. Rajan also gave evidence that she is not able to return to work
at Burnaby Hospital as an operating nurse because her physical impairments
prevent her from performing the duties of that position.

[65]        
Ms. Rajan testified that during the summer and for the remainder of
2012 she was unable to return to work at Burnaby Hospital.  On
cross-examination, questions 921 to 923 were put to Ms. Rajan:

921     Q       Have you made any — have you had any communications
with the employer?

A        Yes, I have contacted her.  As of two weeks
ago, they were trying to organize a schedule for me to come back to work, and I
have to — I haven’t heard from them since and I should be contacting them
today to follow up.

922     Q       With a view to returning to what sort
of job?

A        Full responsibilities, as a casual — casual
status to begin with.

923     Q       So essentially the same job as you’re
doing at Valley Medical?

A        Correct.

[66]        
The plaintiff agreed those answers were true, that she had contacted
Burnaby Hospital in late May 2012, and that they were scheduling her to return
to work with full responsibilities as a casual operating room nurse.

[67]        
Ms. Rajan also testified that she was not physically capable of
returning to work at Burnaby Hospital since the third motor vehicle accident. 
On cross-examination, she was confronted with questions 905 and 906 from her
examination for discovery of June 7, 2012:

905     Q       So you were taking what you could get?

A        Correct.

906     Q       So if you had not had your dad’s shop,
you would still only be working one to two days a week at Valley?

A        Correct,
but then I would have also picked up shifts at Burnaby Hospital.

[68]        
Ms. Rajan confirmed those answers were true and agreed that if she
had not had to work at her father’s photocopy shop she would also have picked
up shifts at Burnaby Hospital, in addition to the one or two shifts per week at
Valley Surgical.

[69]        
In cross-examination Ms. Rajan explained that at the time of her
examination for discovery of June 7, 2012 she was feeling sufficiently well to
attempt to return to work at Burnaby Hospital.  On April 1, 2012, Dr. Jones
had cleared her for a graduated return to work, starting with one shift per
week and increasing to two shifts per week after two weeks. The plaintiff’s
commitments to her father’s business resulted in the postponement of any
attempt to return to work at Burnaby Hospital for the remainder of 2012.

[70]        
Ms. Rajan acknowledged she never returned to Burnaby Hospital.  She
testified that Burnaby Hospital was not prepared to give her a graduated return
to work, and insisted that upon her return she be capable of performing the
full range of duties of an operating room nurse.  The plaintiff testified that
she had not returned to Burnaby Hospital because she was afraid she would not
be able to fulfill all of the duties of the operating room nurse’s position.  Ms. Rajan
agreed that as a casual employee, there was no reason why she could not have
begun by booking one shift a week.

[71]        
In discussing the more significant discrepancies and inconsistencies in
the plaintiff’s evidence, I do not suggest that she intended to mislead the Court. 
The plaintiff experienced three accidents over a period of 18 months.  Her slow
recovery is a source of anxiety.  I find that the plaintiff has developed an
exaggerated sense of the extent of her limitations which renders some of her
evidence unreliable and requires caution when considering her self-reporting to
the various physicians and other care providers who have assessed her medical
condition and her functional and vocational capacities.

THE PLAINTIFF’S CONDITION

Medical Evidence: Physical
Injuries

Dr. William
Craig

[72]        
Dr. Craig is a physiatrist who examined Ms. Rajan at the
request of plaintiff’s counsel on September 24, 2010, a week after the third
accident.

[73]        
At the time of his examination, the plaintiff complained of
posterolateral neck pain which, when acute, produced headaches on the right
side that started at the back of her skull and moved up to the scalp.  The plaintiff
reported that her neck symptoms were aggravated by raising her arms, reaching
across her chest, turning her neck or carrying items.  She also experienced
occasional tingling down her right arm.  In addition, the plaintiff complained
of constant upper and mid back pain, aggravated by activity, and episodic low
back discomfort provoked by bending, prolonged sitting and standing.  She also
reported pain in her right thigh.

[74]        
Ms. Rajan appeared to make a good effort on examination and did not
exhibit any pain behaviour.

[75]        
In Dr. Craig’s opinion, Ms. Rajan suffered minor soft tissue
injuries to her neck, shoulders and upper back as a result of the first motor
vehicle accident.  Those injuries had mostly recovered but were aggravated by
injuries from the May 18, 2010 accident and then further aggravated by
injuries from the September 17, 2010 accident.  Dr. Craig thought that the
plaintiff had also suffered a soft tissue injury to her right hip girdle as a
result of the September 10, 2010 accident.

[76]        
Dr. Craig assessed the plaintiff’s pain as primarily myofascial, or
related to the muscles and surrounding tissues.  His examination was limited as
a result of the plaintiff’s recent acute injury in the third accident.  He
thought the injuries to the right hip were primarily soft tissue injuries from
the plaintiff’s seatbelt.  Dr. Craig also thought the plaintiff might have
traumatic trochanteric bursitis (a soft tissue injury to the hip girdle), or a
strain to one of her lateral hip muscles.

[77]        
Based on his review of the pre-accident clinical records, in Dr. Craig’s
opinion, Ms. Rajan had no significant chronic pre-existing problems with
her neck, shoulders or back before the February 10, 2009 accident.  Imaging
studies of the plaintiff’s cervical, thoracic and lumbosacral spine conducted
on April 3, 2009 revealed no significant abnormalities.

[78]        
 On his review of the clinical records, which included references to
chronic headaches in December 2005 and February 2006, Dr. Craig thought
that the plaintiff had a pre-existing headache disorder that was exacerbated by
injuries to her neck from each of the February 10, 2009, May 18, 2010 and
September 17, 2010 accidents.

[79]        
Although he recognized that it was too early to provide a long term
prognosis, based on the plaintiff’s substantial recovery from the first two
accidents, and the length of time that she was off work after each of those
accidents, Dr. Craig expected Ms. Rajan to be off work for between
three and six months following the third accident.  He also thought that within
a few months the plaintiff would be able to return to doing all of her
household tasks.

Dr. Christine
Jones

[80]        
Dr. Christine Jones is a family doctor.  Her treatment of Ms. Rajan
began immediately after the second accident and continued until her retirement
from medical practice in June 2012.

[81]        
In her report dated October 24, 2012, Dr. Jones noted that when she
saw the plaintiff on May 28, 2010, Ms. Rajan reported being the
seat-belted driver of a car involved in a rear-end collision.  The plaintiff also
reported she had been involved in the first accident in February 2009 and had
returned to work in November 2009.  Ms. Rajan told Dr. Jones that she
felt she had no residual symptoms from the first accident.

[82]        
The plaintiff complained of headaches, right neck pain radiating across
the top of her right shoulder and right upper thoracic pain.  Dr. Jones
diagnosed soft tissue injuries to the cervical and thoracic spine.

[83]        
Dr. Jones described the plaintiff’s recovery from the second motor
vehicle accident as “slow but typical”.  Her headaches became less intense by
mid June 2009 and were occurring once or twice a week by early July.  The
plaintiff’s neck pain and thoracic symptoms also gradually improved through the
summer of 2010.

[84]        
When Dr. Jones saw Ms. Rajan for the third motor vehicle
accident on the afternoon of September 17, 2010, the plaintiff told her that by
that time the symptoms from her previous accident were 80% resolved.  The
plaintiff’s complaints following the third motor vehicle accident were
occipital headache, right side neck pain with radiation across the right
shoulder with somewhat less symptoms on the left side, soreness in the right
shoulder and arm, and bilateral thoracic pain, more intense on the right.  The
plaintiff also complained of soreness over the right lateral hip and into the
gluteal muscles.

[85]        
During the fall of 2010, the plaintiff remained off work.  She reported
that she had started to experience anxiety attacks while driving.  By December
2010, the plaintiff was reporting significant improvement to all her symptoms. 
Her headaches were milder and occurred about once a week, her neck and thoracic
pain had reduced and her hip pain permitted her to sit comfortably for up to 20
minutes.

[86]        
On June 26, 2011, the plaintiff reported a flare-up of her symptoms. 
She complained of constant neck pain and that the pain in her right hip was
much worse.  She reported that she was limping at the end of the day and had
difficulty climbing stairs.

[87]        
By the end of September 2011, the plaintiff reported feeling much improved.

[88]        
After the unexpected death of the plaintiff’s father on November 9,
2011, Ms. Rajan had to suddenly increase her physical activity by
assisting in the operation of his photocopy store.  She reported to Dr. Jones
that this involved lifting, standing and working in her father’s shop 20 hours
a week.  She was able to do this without exacerbating her symptoms.  In early
2012, Ms. Rajan, while continuing to work in her father’s shop, also
worked one to two shifts per week in the operating room of the Valley Surgical. 
She reported intermittent tightness and discomfort with her neck and mid back
and flaring of right hip and lumbar pain associated with frequent stair
climbing or prolonged sitting or standing.

[89]        
When Dr. Jones last saw Ms. Rajan on June 18, 2012, she reported
that her headaches had resolved, but continued to complain of hip and lower
back symptoms.  On a good day, she experienced pain localized in her right hip.
On a bad day, the pain radiated down her right leg and across her lumbar spine.
The plaintiff’s neck and thoracic spine symptoms had improved, although she
complained of some thoracic discomfort after work.  Ms. Rajan was using
muscle relaxants and anti-inflammatories intermittently.

[90]        
Dr. Jones concluded her report by providing a guarded prognosis:

This 41 year old female
operating room nurse has had a long and complex recovery from three car
accidents in an 18 month period. When last seen by me she was still
significantly symptomatic. Her major injuries have been of her neck and
thoracic area and while good resolution was occurring after the second accident
the re-injury which occurred with the third accident has acted to exacerbate
her symptoms. In addition a troubling right hip injury, which presented and has
behaved as myofascial pain as part of the third accident, is not settling in a
typical way and bears further investigation. Anxiety has also been an
unpleasant and disturbing symptom.

Complicating her recovery have
been two important issues. Firstly a serious eye condition, which had ongoing
postoperative complications, often prevented regular active physiotherapy as a
result of needing to keep eye pressures low and because of bleeding prevented
use of many anti-inflammatories. This influenced management from January 2011
until August 2011. Secondly the death of her father resulted in a much heavier
than ideal work load from November 2011.

Mrs. Rajan’s
work as an operating room nurse is a further complicating factor. While
scrubbed in she is required to stand in the same position for long periods with
little control over breaks. Alternately working as a runner involves lifting
and constant movement. An operating room is a bad situation to be distracted
with pain. It is possible that she may need to consider a change of focus in
her nursing career over the long term if symptoms continue. Returning to
general nursing would not afford her the flexible part time work which she
previously enjoyed.

Dr. Jones
believed that the plaintiff would experience some further improvement but
expected her to require ongoing therapy for some time.

[91]        
In direct examination, Dr. Jones explained that the periods of
improvement and decline in the plaintiff’s symptoms were typical.

[92]        
Dr. Jones also thought that Ms. Rajan had coped well, and had adjusted
fairly typically to the loss of her father.

[93]        
On April 1, 2012, Dr. Jones, at Ms. Rajan’s request,
authorized a graduated return to work at Burnaby General beginning with one
shift per week for the first two weeks then increasing to two shifts per week.  At
the time, Ms. Rajan’s symptoms had improved.  In cross-examination, Dr. Jones
testified that Ms. Rajan was keen to get back to work and that she thought
it was a good idea to let her try.  However, Dr. Jones did not think that
on April 1, 2012 the plaintiff was medically fit to return to full duties in
the operating room.

Dr. David
G. Hunt

[94]        
Dr. Hunt, a consultant in pain medicine, assessed Ms. Rajan at
the request of the plaintiff’s counsel on July 10 and August 14, 2012.

[95]        
Dr. Hunt diagnosed the plaintiff as suffering from the following
conditions:

1.       whiplash associated disorder with myofascial
pain syndrome of the neck, right shoulder, and right shoulder girdle and
associated tension headaches;

2.       right shoulder joint dysfunction;

3.       possible right side functional thoracic
outlet syndrome (“TOS”)  involving the right upper arm.  According to Dr. Hunt,
TOS occurs when there is chronic compression of the nerves and/or vascular
structures which run from the base of the neck to the upper arm.  Common
symptoms include variable neck, clavicle and upper arm pain and numbness,
tingling and weakness on the affected side;

4.       mechanical low back pain in the
right L5/S1 facet joint region;

5.       myofascial pain syndrome of the
right lumbosacral, upper right buttock and right hip region;

6.       severe right side trochanteric
bursitis;

7.       right hip dysfunction; and

8.       mood disorder, sleep disorder and
cognitive disorder, secondary to the plaintiff’s chronic pain condition.

[96]        
In Dr. Hunt’s opinion, Ms. Rajan’s persistent and at times
severe pain, aggravated by her sleep, mood and cognitive disorders rendered her
unable to safely perform the duties of an operating room nurse or a regular
nursing ward position on either a full-time or part-time basis.  Dr. Hunt
thought that the plaintiff was totally temporarily disabled from performing even
work of a sedentary nature until she had completed the therapies he
recommended, which he estimated would take approximately eight months.  Dr. Hunt’s
recommendations included x-ray and MRI investigations of the plaintiff’s
cervical spine, right shoulder and right hip, MRI investigations of the right
thoracic outlet and lumbosacral spine, and nerve conduction and EMG studies of
the right upper arm.  He also recommended an interdisciplinary chronic pain
program.  He also thought the plaintiff would benefit from the services of a
psychologist, an occupational therapist, a physiotherapist, aquatic and acupuncture/massage
therapy and marital and nutritional counselling.

[97]        
In Dr. Hunt’s opinion, following completion of his recommended
therapy, the plaintiff would most likely be able to perform sedentary part-time
work up to four hours a day in a five-day work week.

[98]        
In his direct examination, Dr. Hunt discussed his opinion that the
plaintiff suffered from “centralization of the pain process”. He explained that
centralization of  pain occurs in some patients when pain signals sent from the
injured area to the spinal cord cause hyper-sensitization and over-activity in
the spinal neurons, which in turn “wind up” pain in the central nervous system,
resulting in the patient experiencing heightened pain over an area larger than
the initial injury for prolonged periods.

[99]        
In cross-examination, Dr. Hunt agreed that of his eight diagnoses,
the only ones which actually diagnosed the origin of the plaintiff’s condition
or predicted an outcome were the diagnoses of trochanteric bursitis and
whiplash associated disorder.  He agreed that terms such as “myofascial pain
syndrome” and “right shoulder joint dysfunction” were descriptive terms which
did not identify a cause of the plaintiff’s condition.

[100]     Dr. Hunt
agreed that the diagnosis of thoracic outlet syndrome (“TOS”) is a diagnosis of
exclusion; that he is not an expert in diagnosing TOS; and that the tests he performed
are equivocal and can invoke false positive findings.  Dr. Hunt also
agreed that imaging studies of the shoulder will frequently help in the
diagnosis of TOS, and that there were no such studies of the plaintiff’s
shoulder.

[101]     In cross-examination,
Dr. Hunt agreed that he was not able to diagnose cognitive disorders but
said that he could identify the symptoms and then refer a patient for a full
diagnosis.  He reiterated his view that the plaintiff experienced cognitive
dysfunction when her chronic pain was more intense.  Mr. Harris then asked
Dr. Hunt how long a person would last working as an operating room nurse
if she had cognitive dysfunction.  Dr. Hunt agreed that the dysfunction would
be apparent and the plaintiff would be unable to maintain her employment.  As Dr. Hunt
put it, “she is going to be out of there”.  Notwithstanding Dr. Hunt’s
opinion that the plaintiff suffers from cognitive dysfunction associated with
chronic pain, Ms. Rajan continued to work in the operating room at Valley
Surgical at the time of trial.

[102]     Dr. Hunt’s
recommendations and prognosis were pessimistic.  He thought the plaintiff
should not work at all for eight months, and that if, during that period, she
participated in the chronic pain program and multiple therapies he recommended,
there was a 60% chance that she would be capable of some part-time work. Dr. Hunt
disagreed that his recommendations would transform Ms. Rajan from being a
functional member of society into someone who was overly dependent on others.

Dr. David
Brooks

[103]     Dr. Brooks,
a physician qualified to give expert evidence in the field of occupational
medicine, conducted an independent medical evaluation of Ms. Rajan in
August 2012.  He found the following symptoms of impairment:

·      
reduced range of motion in the
cervical spine, particularly lateral flexion and rotation to the left;

·      
features of chronic myofascial
pain disorder in the neck and shoulder girdle;

·      
possible functional TOS on the
right side;

·      
diffusely restricted movement and
muscle tension in the lumbar region;

·      
multiple myofascial trigger points
in the gluteal region;

·      
piriformis syndrome (compression
of the sciatic nerve by the piriformis muscle) on the right side; and

·      
trochanteric bursitis on the right
side.

[104]     With
respect to the plaintiff’s degree of impairment, Dr. Brooks’ opinion as
stated at paragraphs 86 and 87 of his report dated September 21, 2012 was as
follows:

86.     Ms. Rajan shows moderate impairment in
her abilities due to symptoms involving primarily the neck and trapezius
muscles in the neck and shoulder, and pelvis and right hip. These
musculoskeletal problems do affect her in both personal and work life with reduction
of her ability to work in jobs with physical demands that require the use of
the arms for pushing/pulling/lifting. She is also significantly affected in
tasks requiring sustained sitting or standing postures.

87.     She
would not fully meet the job criteria for the many job positions based on
current assessment and it is difficult to speculate, unless she makes
significant progress with a concerted rehabilitation program, whether she could
return to previous high levels of functioning.

[105]     Dr. Brooks
thought that the plaintiff will continue to have chronic headaches, neck and
shoulder pain to some degree indefinitely.  In view of her ongoing chronic
pain, he thought it was not likely that Ms. Rajan could ever return to the
higher levels of function she had previously enjoyed, but expected that with
appropriate treatment her condition could improve.

[106]     At
paragraph 92 of his report, Dr. Brooks said this:

92.     Her
prognosis for ongoing full-time work as an operating room nurse also appears to
be in doubt. Significant gains in rehabilitation will have to occur before she
could be fit for the demands of this job. As also noted she may have
right-sided thoracic outlet syndrome and this may worsen and need surgical
opinions. Worsening TOS can lead to permanent nerve damage and therefore it is
important to treat her neck and shoulder problems more actively to try and
reduce the pressures on the brachial plexus. Operating room nurses require the ability
to be dextrous with both arms and hold equipment such as retractors in either
hand.

[107]     In Dr. Brooks’
opinion, the plaintiff would benefit from further physiotherapy specifically
directed at improving her posture, reducing her symptoms of TOS, strengthening
her gluteal muscles and improving her piriformis dysfunction.  He thought the
plaintiff might benefit from a cortisone injection to her hip to decrease her
trochanteric bursitis symptoms and that trigger point or intramuscular
stimulation therapy might assist in restoring normal neck movement and reducing
neck, shoulder and upper back pain.

[108]     Dr. Brooks
also thought that the plaintiff might benefit from psychological counselling
regarding the management of her chronic pain and anxiety, and her tendency to
fear and avoid pain.

[109]     Although Dr. Brooks
suggested a possible diagnosis of TOS in his report, on cross-examination he asserted
that the plaintiff did have TOS.

[110]     Dr. Brooks
reported that Ms. Rajan suffered from altered posture, resulting in “a
head forward” position that contributed to her chronic upper back and shoulder
pain. He attributed this condition to the motor vehicle accidents.

[111]     On cross-examination,
Dr. Brooks could not say when Ms. Rajan developed her abnormal
posture and acknowledged that he had made no enquiry of her about when this
condition developed. Dr. Brooks accepted that corrective posture exercises
could help, but believed that the plaintiff’s postural problem was too severe
to be remedied.

[112]     Dr. Brooks
was the only medical expert who found that the plaintiff suffered from piriformis
syndrome.

Dr. O.M.
Sovio

[113]     Dr. Sovio,
an orthopaedic surgeon, conducted an independent medical examination of the
plaintiff on behalf of the defendant on September 18, 2012.

[114]     Ms. Rajan’s
complaints to Dr. Sovio included pain in her right shoulder that
interfered with her ability to perform her duties as an operating room nurse;
right upper back pain accompanied by aching and throbbing sensations induced by
sitting at a computer or working on long cases in the operating room; pain in
the right hip that flared and radiated down the right leg; and significant discomfort
in her right hip if she walked for any distance.

[115]     Dr. Sovio
noted that the plaintiff was not exercising at all at the time he examined her,
and that she had had no physical activity since her last physiotherapy in April
2012.

[116]     Ms. Rajan
told Dr. Sovio that she had not exercised since her physiotherapy because
she was afraid of injuring herself.

[117]     Dr. Sovio
reported that his physical examination did not suggest any specific anatomic
injury to explain the plaintiff’s sense of “profound disability”.  He thought
part of the problem was Ms. Rajan’s lack of exercise.

[118]     Dr. Sovio
attributed the plaintiff’s hip problems to trochanteric bursitis, which could
be successfully treated by exercise, anti-inflammatories and if necessary a
cortisone injection.  He found no evidence of nerve root problems.

[119]     He also
found no evidence of thoracic outlet syndrome.

[120]     In his
report dated February 25, 2013, Dr. Sovio, after reviewing the plaintiff’s
experts’ reports, expressed the following opinions:

This lady’s situation is
difficult to assess. It would appear that the patient presents with profound
disability well below the sedentary level according to her assessment. This
does not fit with the picture as far as the physical examination is concerned.

The patient appears to be able
to function if she so chooses namely working as an OR nurse one day a week. I
note also that she was working in her father’s printing business in addition to
that. The patient, according to the records, seems to claim that she has
problems with all activities of daily living and requires help in almost
everything and the cost of future care assessment done by Ms. Berry
appears to make the assumption that the patient is unable to do anything.

I do not feel that this is
correct judging from the physical examination that I performed and the physical
findings.

I do not feel that the patient
is disabled to the degree that she presents on a physical basis.

I do not agree with the
diagnoses made by Dr. Hunt. Dr. Hunt seems to make a whole host of
orthopaedic diagnoses but I do not feel that these diagnoses can be supported
by the physical findings noted in his physical examination. Certainly I do not
feel that this patient has a labral tear. She does have trochanteric bursitis
as I found but this was mild and could easily be treated by conservative means.
Dr. Hunt states that the patient has severe trochanteric bursitis. He
makes a diagnosis of shoulder dysfunction but this again is not a diagnosis but
rather a statement. Similarly I do not feel that the patient suffers from
thoracic outlet syndrome. I do not feel that the patient should be investigated
by the 7 or so MRIs that Dr. Hunt recommends similarly I do not feel that
electromyographic studies are indicated.

Dr. Hunt gives an
extremely pessimistic outlook for this lady and seems to feel that she is not
able to do any kind of work at all.

As
far as the diagnosis made by Dr. David Brooks it would appear that the
assertion that the patient was completely recovered in between accidents does
not appear to be correct. He states that the patient has altered scapular
function which again is not a diagnosis. Similarly I do not feel that the
patient has Piriformis syndrome and I do not feel that the patient has any
sacroiliac joint problems and as mentioned I do not feel that she has thoracic
outlet syndrome. I do feel that she has trochanteric bursitis however.

Findings of Fact: Physical
Injuries

[121]     Drs. Craig
and Jones each provided the court with a balanced assessment of the plaintiff’s
physical injuries.  It was my impression that during cross-examination they
each did their best to assist the Court and to respond fairly and objectively
to the questions put to them by counsel.  Dr. Jones had the benefit of
seeing the plaintiff on a number of occasions between May 28, 2010 and
June 18, 2012.  I accept the evidence of Drs. Craig and Jones that the
plaintiff suffered soft tissue injuries, myofascial in nature, to her right
shoulder, upper back and neck.

[122]     I also
find that the plaintiff suffered from headaches following each of the accidents
and that the plaintiff’s headaches had largely resolved by the time she last
saw Dr. Jones on June 18, 2012.

[123]     All of the
medical experts agree that the plaintiff suffers from traumatic trochanteric
bursitis of the right hip.  At the time of trial, the plaintiff continued to
experience significant pain in her right hip, which at times radiated down her
right leg.  The flaring of her right hip and lumbar pain is associated with
frequent stair climbing and prolonged sitting or standing.  I also find that the
plaintiff continues to experience intermittent discomfort in her neck and upper
back during or following her shift work at Valley Surgical.

[124]     The soft
tissue injuries to the plaintiff’s right hip and right shoulder are her most
serious and persistent injuries.  She continues to suffer intermittent
flare-ups of the right shoulder with pain radiating into her arm.

[125]     I accept
the opinion of Dr. Jones that Ms. Rajan’s prognosis is guarded due to
her slow recovery and the persistence of significant symptoms affecting her
right shoulder and hip.

[126]     Drs. Sovio
and Brooks both gave evidence that trochanteric bursitis is treatable with exercise,
anti-inflammatories and cortisone injections. I find there is a real
possibility for significant improvement of the plaintiff’s right hip symptoms.

[127]     When Dr. Craig
prepared his report of September 24, 2012, he expected that over the next few
months Ms. Rajan would be able to resume all of her household tasks.  In
October 2011, the plaintiff reported to CBI that she was then able to do 90% of
her household chores, but was unable to garden, lift heavy objects, or mow the
lawn.  When discharged from CBI on April 9, 2012, the plaintiff reported that
her household chores were going well.  She was not mowing the lawn.  She had
tried vacuuming but found that her right hip pain prevented her from vacuuming
more than two rooms.  I find that by the time of trial the plaintiff was
capable of performing most housekeeping chores, other than those involving
heavy lifting or sustained pulling and pushing.

[128]     I do not
accept Dr. Brooks’ opinion that the plaintiff suffers from piriformis
syndrome.  That diagnosis was rejected by both Dr. Sovio and Dr. Hunt,
and is not supported by any of the other medical experts.

[129]     Dr. Brooks
assumed that the plaintiff’s "head forward" posture was caused by one
or more of the accidents.  However, he did not ask Ms. Rajan about her
posture before the accidents.  Further, Dr. Sovio, an orthopaedic surgeon,
reported that the plaintiff’s neck alignment was normal.  On this point, I
prefer the evidence of Dr. Sovio to that of Dr. Brooks.  I am not
persuaded that the plaintiff suffered any postural abnormality as a result of
the accidents.

[130]     I give the
opinions of Dr. Hunt less weight than those of Drs. Craig and Jones.  In Dr. Hunt’s
opinion, at the time of his examination, Ms. Rajan was temporarily totally
disabled from performing even work of a sedentary nature.  That opinion is not
consistent with either Ms. Rajan’s level of daily activity as reported to Ms. Craig,
or her ability, at the time of her examination by Dr. Hunt, to cope with
the demands of her father’s business and work one shift per week at Valley
Surgical.

[131]     Dr. Hunt
appears to have uncritically accepted the plaintiff’s self-reporting of her high
level of disability.  For example, based on the plaintiff’s reporting, Dr. Hunt
opined that Ms. Rajan suffered from cognitive dysfunction associated with
her chronic pain.  However, in cross-examination he acknowledged that an
operating room nurse with cognitive dysfunction would not be able to keep her job
for long.

[132]     Dr. Hunt
also conceded that of his eight diagnoses, only trochanteric bursitis and
whiplash associated disorder diagnosed the origin of the plaintiff’s condition,
while the remaining six were merely descriptors, which did not identify a cause
or outcome of a medical condition.

[133]     I agree
with the submission of the defendants that the medical evidence falls short of
establishing on a balance of probabilities that the plaintiff suffers from
TOS.  Dr. Hunt acknowledged that he is not an expert in the diagnosis of
that condition, and that the tests he performed are equivocal, and subject to
false positives.  Imaging studies of the plaintiff’s right shoulder, which
might have assisted in the diagnosis of this condition, have not been
performed.  However, the debate about whether the plaintiff has TOS is largely
academic.  I have found that one of the ongoing symptoms of the plaintiff’s
right shoulder injury is intermittent pain radiating from the shoulder down her
right arm.

Medical Evidence: Psychological
and Emotional Injuries

[134]     The
plaintiff had no history of depression or other psychological injury preceding
the motor vehicle accidents.  Although the plaintiff experienced frustration
with the length of time it took for her to substantially recover from the
physical injuries she suffered in the first and second accidents, as Dr. Hunt
reported, Ms. Rajan denied experiencing any persisting symptoms of anxiety
or depression following the accidents of February 10, 2009 or May 18, 2010.

[135]     Dr. Jones
reported that in the fall of 2010, after the third accident, the plaintiff
began to experience anxiety attacks while driving.

[136]     When Dr. Hunt
examined the plaintiff in July 2012, almost two years after the third accident,
she reported experiencing symptoms of depression, including sadness, low
self-esteem and loss of motivation.  She also reported experiencing anxiety
while driving.

[137]     Dr. Hunt
provided the following opinion:

It
is my opinion that Ms. Rajan has developed a reactive depression with
anxiety on the basis of her chronic pain conditions, her reduction in her
tolerance for physical activity, the uncertainty regarding her performance in
the operating room and the result of losses of her quality of life.  Her mood
disorder has evolved as a consequence of the injuries and chronic pain
conditions arising out of the [accident] of September 17, 2010.  Her depression
has likely been augmented by the death of her father and she may have some
unresolved grief.  She requires appropriate psychiatric/psychological help in the
form of counselling, cognitive behavioural therapy, stress management and
pacing skills.

[138]     Dr. Hunt
also thought that the plaintiff suffered from a sleep disorder associated with
her chronic pain.  Additionally, based on the plaintiff’s report of deterioration
in her cognitive function following the third accident, including difficulties
in focusing and concentrating, and problems with her short term memory, Dr. Hunt
opined that Ms. Rajan suffered from a cognitive disorder caused by her
persistent chronic pain, mood disorder, sleep disorder and fatigue.

[139]     The
plaintiff’s general practitioner prescribed anti-depressants in or about
November 2012 when the plaintiff was feeling depressed about her recovery
having plateaued.  Ms. Rajan says that she was extremely depressed, lacked
motivation, and had suicidal ideation.  She felt that the anti-depressant
Cepralex induced suicidal thoughts and was unable to tolerate Cymbalta.  She
currently takes the anti-depressant Paxil.

[140]     The
plaintiff’s mood has improved.  At the time of trial, she reported experiencing
depression about one day a week.  She continues to take Paxil, 10 ml once a
day.

Findings of Fact: Psychological
and Emotional Injuries

[141]     I find
that the plaintiff experienced frustration as a result of her slow and incomplete
recovery from the injuries suffered in the first accident.  The plaintiff was
also upset and frustrated when she was re-injured in the second accident and
did not fully recover from the effects of that injury before the third
accident.

[142]     Following the
third accident, the plaintiff suffered from anxiety about driving.  That
anxiety has diminished with the passage of time and does not prevent Ms. Rajan
from driving her children to school or extracurricular activities, or from
commuting to and from her work at Valley Surgical.

[143]     I accept
that by the summer of 2012 the plaintiff suffered from symptoms of depression,
including sadness and lack of motivation as a consequence of her slow recovery
and persistent pain.  However, the third accident was not the sole cause of Ms. Rajan’s
depressive symptoms, anxiety and emotional distress.  The sudden and unexpected
loss of her father in November 2011 was also, as she acknowledged in
cross-examination, a source of distress and emotional trauma.  In addition, the
plaintiff’s eye surgery of January 2011 and the subsequent complications, which
were not resolved until Ms. Rajan underwent a second, corrective eye
operation in January 2012, also contributed to the plaintiff’s anxiety and
depressive mood.  I find that the death of the plaintiff’s father, and the
stress associated with her protracted eye surgeries also contributed to the
onset of Ms. Rajan’s symptoms of depression.  I find that the third
accident and the non-tortious factors were equal causes of her reactive mood
disturbance and depression.

[144]     I also
accept that Ms. Rajan has suffered intermittent sleep disturbance as a
consequence of the soft tissue injuries to her back, neck, right shoulder and
right hip.

[145]     The
plaintiff has not adduced any evidence from a psychiatrist or a psychologist
that Ms. Rajan suffers from a cognitive disorder.  Dr. Hunt based his
opinion that the plaintiff suffered from a cognitive disorder on Ms. Rajan’s
self-reporting.  I attach no weight to that opinion when the plaintiff has
continued to fulfil her duties in the operating room at Valley Surgical,
working in an environment where any cognitive dysfunction would be readily
apparent to other members of the surgical team.  I also note that in his
vocational assessment, Mr. Trainor identified Ms. Rajan’s employment
assets as including strength in verbal and numerical reasoning abilities, and
strong communication skills.  The plaintiff has not established that she has
suffered any impairment of her cognitive functions that materially affects her
capacity to function in the workplace, socially, or at home.

CAUSATION

[146]     The basic
test for determining causation is the "but for" test.  The plaintiff
bears the burden of establishing that "but for" the negligent act or
omission of the defendant, the injury would not have occurred: Resurfice
Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21.

[147]     As the
Court observed in Resurfice at para. 23:

The “but for” test recognizes
that compensation for negligent conduct should only be made “where a
substantial connection between the injury and the defendant’s conduct” is
present.  It ensures that a defendant will not be held liable for the
plaintiff’s injuries where they “may very well be due to factors unconnected to
the defendant and not the fault of anyone”: Snell v. Farrell, at
p. 327, per Sopinka J.

[148]     The
"but for" test must be proved on a balance of probabilities, rather
than with scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458,
at paras. 13, 16.

[149]     It is not
necessary for the plaintiff to establish that the defendant’s negligence is the
sole cause of the injury.  As long as the defendant is part of the cause of the
injury, the defendant is liable, even if his or her act alone was not enough to
create the injury: Athey v. Leonati, at para. 17.

[150]     Causation
must be established on a balance of probabilities before damages are assessed: Blackwater
v. Plint, 2005 SCC 58 at para. 78.

[151]     Here, Ms. Rajan
must establish on a balance of probabilities that her injuries would not have
occurred but for the negligence of the defendants.  Because the plaintiff
claims to have suffered injuries in three separate motor vehicle accidents, the
law of divisibility is engaged.

[152]     The Court
of Appeal reviewed the law on divisible injuries in Moore v. Kyba, 2012
BCCA 361.  Madam Justice Levine, writing for the Court, set out the applicable
principles:

[32]      Much judicial ink has been spilled concerning the
characterization of multiple injuries as divisible or indivisible, and the
impact of that characterization on the determination of causation and
assessment of damages in a negligence case.

[34]      The relevant principles were clearly set out in Athey
v. Leonati, [1996] 3 S.C.R. 458.  Their elaboration in Blackwater v.
Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, and by this Court in T.W.N.A. v.
Canada (Ministry of Indian Affairs), 2003 BCCA 670 at paras. 22-37, B.P.B.
v. M.M.B., 2009 BCCA 365, Bradley v. Groves, 2010 BCCA 361 and Laidlaw
are also helpful.

[35]      The basic principles at play in this analysis are
that a “defendant is not liable for injuries which were not caused by his or
her negligence” (Athey at para. 24), and “the defendant need not
put the plaintiff in a position better than his or her original position” (Athey
at para. 35).  These two principles, which deal with the concepts of
causation and assessment of damages, were distinguished in Blackwater
(at para. 78):

It is important to distinguish
between causation as the source of the loss and the rules of damage assessment
in tort. The rules of causation consider generally whether “but for” the
defendant’s acts, the plaintiff’s damages would have been incurred on a balance
of probabilities. Even though there may be several tortious and non-tortious
causes of injury, so long as the defendant’s act is a cause of the plaintiff’s
damage, the defendant is fully liable for that damage. The rules of damages then
consider what the original position of the plaintiff would have been. The
governing principle is that the defendant need not put the plaintiff in a
better position than his original position and should not compensate the
plaintiff for any damages he would have suffered anyway: Athey.

[36]      Thus, whether a defendant is liable to a plaintiff
for an injury is a matter of causation; the amount of compensation the
defendant must pay is a matter of assessment of damages.

[37]      The concepts of divisible and indivisible injury
are relevant at both stages of the analysis.  At the stage of determining
causation, the characterization of the plaintiff’s injury or injuries as
divisible or indivisible is relevant in determining what the defendant is
liable for.  As explained in Athey (at paras. 24-25):

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.

[41]      At the stage of assessment of damages, the question
is what compensation the plaintiff is entitled to receive from the defendant.

[42]      If the injury is
divisible, then the plaintiff is entitled to be compensated for the injury
caused by the defendant.  In this case, if the interscapular pain was a
divisible injury, then the respondent was entitled to compensation for his loss
flowing from that injury.

[153]     The court
must make factual findings on the causes of Ms. Rajan’s injuries in order
to determine whether they are divisible or indivisible.  As the Court stated in
Blackwater v. Plint at para. 74:

…Untangling the different
sources of damage and loss may be nigh impossible.  Yet the law requires that
it be done, since at law a plaintiff is entitled only to be compensated for
loss caused by the actionable wrong.  It is the “essential purpose and most basic
principle of tort law” that the plaintiff be placed in the position he or she
would have been in had the tort not been committed: Athey v. Leonati,
[1996] 3 S.C.R. 458, at para. 32.

[154]     Divisible
injuries are those capable of being separated out and having their damages
assessed independently, while indivisible injuries are those that cannot be
separated or have liability attributed to the constituent causes: Bradley
v. Groves, 2010 BCCA 361, at para. 20.

[155]     In Scoates
v. Dermott, 2012 BCSC 485, where the plaintiff was involved in four motor
vehicle accidents, Mr. Justice Smith found that the second, third and
fourth accidents caused or contributed to the plaintiff’s injuries, although
their impact was much less significant than the first accident.  That however
was “a question of damage assessment and apportionment, not causation” (at para. 156).

[156]     In
discussing the assessment of causation among multiple tortfeasors, Smith J.
said this in Scoates, at paras. 157 and 163-165:

[157]    Tortfeasors are liable only for the injuries they
cause.  When different tortfeasors cause different injuries, each is liable
only for the damages resulting from the injuries they cause.  However, if they
have all contributed to a single, indivisible injury, they are all jointly and
severally liable to the plaintiff.  In Bradley v. Groves, 2010 BCCA 361,
the Court of Appeal said, at para. 32:

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

[163]    The third and fourth accidents each caused a
temporary aggravation in the plaintiff’s generalized pain. It is not possible
to identify a precise date when the aggravation from each of the third and
fourth accidents ended and the plaintiff’s pain returned precisely to a
previous baseline.  The subjective nature of pain and the physical and
psychological factors that contribute to it are simply too complex for such an
assessment.  In my view, that is precisely the scenario the Court of Appeal was
addressing when it said in Bradley (at para. 34):

If an injury cannot be divided into
distinct parts, then joint liability to the plaintiff cannot be apportioned
either. It is clear that tortfeasors causing or contributing to a single,
indivisible injury are jointly liable to the plaintiff.

[164] Bradley discusses the concept of
indivisibility in a physical sense – injuries to the same part of the body that
cannot be divided into distinct parts.  But there appears to be no reason in
principle that a physically indivisible injury may not be divisible for the
purpose of specific heads of damage.  The basic rule remains that defendants
cannot be held liable for losses they played no part in causing.

[165]    The third and fourth accidents
temporarily increased the plaintiff’s pain and suffering and must be seen as
contributing to an indivisible injury for purposes of assessing non-pecuniary
damages.  But those accidents played no part in the plaintiff’s loss of income,
inability to return to his former occupation or his loss of earning capacity.

[157]     Bearing
these principles in mind, I turn first to causation, and then to the divisibility
of the plaintiff’s injuries.

First and Second
Accidents: Injuries

[158]     Ms. Rajan
testified that in the first accident she suffered headaches and injuries to her
neck, upper back, mid-back and right shoulder.  She also gave evidence that she
suffered a minor injury or "tweak" to her lower back, which resolved
quickly.  In cross-examination, the plaintiff agreed that on her examination
for discovery she had denied any low back injury in the first accident.  I find
that any injury the plaintiff sustained to her low back in the first accident was
slight, made no significant contribution to her pain and suffering, and had
resolved well before the second accident.

[159]     In Dr. Craig’s
opinion, Ms. Rajan suffered minor soft tissue injuries to her neck,
shoulders and upper back as a result of the first accident.

[160]     I find
that as a result of the first accident the plaintiff suffered headaches and
soft tissue injuries to her neck, upper back and right shoulder.

[161]     As Ms. Rajan
reported to Dr. Craig, she was 90-95% recovered from her neck, upper back
and right shoulder pain and headaches just before May 18, 2010, when the second
accident occurred.  However, at that point, she was not symptom free.  She
continued to experience some discomfort.  Her headaches, while less frequent,
had not resolved.

[162]     When Ms. Rajan
visited her family doctor after the second accident on May 18, 2010, Dr. Jones
diagnosed soft tissue injuries to the right neck and thoracic spine.  Dr. Craig
reported that the plaintiff’s injuries from the first accident were aggravated
by her injuries from the May 18, 2010 accident.

[163]     I find
that the second accident aggravated the headaches and soft tissue injuries the
plaintiff sustained to her neck, right shoulder and upper back in the first
accident.

Third Accident: Injuries

[164]     Dr. Jones
examined Ms. Rajan on September 17, 2010, the day of the third accident.  She
diagnosed the plaintiff as having suffered a soft tissue injury of her thoracic
spine and noted that the plaintiff’s right hip was sore.

[165]     When Dr. Craig
saw the plaintiff a week after the third accident, Ms. Rajan reported that
she had recovered 80-85% from her injuries suffered in the first two
accidents.  In Dr. Craig’s opinion, the third accident further aggravated
the plaintiff’s soft tissue injuries to her neck, shoulders and upper back.

[166]     Dr. Craig
also diagnosed a soft tissue injury to the plaintiff’s right hip girdle
resulting from the third accident, and Drs. Jones, Hunt and Brooks all
agreed that the plaintiff’s right hip injury was caused solely by third
accident.  Ms. Rajan also attributed her right hip injury to the accident
of September 17, 2010.

[167]     I find
that but for the third accident, the plaintiff would not have suffered the
injury to her right hip, diagnosed by the medical experts as traumatic
trochanteric bursitis.

[168]     I also find
that the third accident caused an aggravation of the plaintiff’s headaches and
the soft tissue injuries to her neck, upper back and right shoulder suffered in
the first and second accidents.

[169]     I find
that the plaintiff’s complaint of pain radiating from her right shoulder down
her right arm began after the third accident.  However, this was likely the
effect of successive traumas to the right shoulder rather than a new and
separate injury.

[170]     Dr. Jones
made her first record of the plaintiff suffering anxiety attacks on October 9,
2010, after the third accident.  She did not prescribe anti-depressants for the
plaintiff until after the third accident.

[171]     I find
that the plaintiff’s driving-related anxiety was caused by the third and most
severe accident.  But for the third accident, the plaintiff would not have
suffered from that condition.

[172]     I have
also found that the third accident was a cause of the plaintiff’s symptoms of
depression.  I find that while the plaintiff understandably experienced some
frustration as a result of her slow recovery from each of the first and second
accidents, neither of those events caused or contributed to her depression.

Divisible or Indivisible
Injuries?

[173]     The
headaches and soft tissue injuries to the plaintiff’s neck, upper back and
right shoulder, including the intermittent pain radiating from the plaintiff’s
right shoulder to her right arm are injuries that cannot be divided into
distinct parts.  The injuries the plaintiff sustained in the first accident
were aggravated by the second accident and were further and more severely
aggravated by the third collision.  Each of the second and third accidents
worsened the headaches and soft tissue injuries to the neck, upper back and
right shoulder from which the plaintiff had not fully recovered.  As the Court
of Appeal stated in Bradley, at para. 37:

It may be that in some cases,
earlier injury and later injury to the same region of the body are divisible.  While
it will lie for the trial judge to decide in the circumstances of each case, it
is difficult to see how the worsening of a single injury could be divided up.

[174]     I conclude
that the plaintiff’s headaches and soft tissue injuries to the neck, upper back
and right shoulder are indivisible injuries for which the defendants are
jointly and severally liable.

[175]     As the
defendants Anna and Tyler Hutchins conceded, the plaintiff’s right hip injury
is a divisible injury for which only they are liable.  Similarly, the
plaintiff’s accident-related anxiety and depression is a divisible injury for
which the defendants Anna and Tyler Hutchins are solely liable.

[176]     Later in
these Reasons, I will address the divisibility of injuries for the purpose of
specific heads of damage, and the apportionment of liability for the
plaintiff’s indivisible injuries among the three defendants.

ASSESSMENT OF DAMAGES

Non-Pecuniary Damages

Facts

[177]     Ms. Rajan
is now 44 years old.  At the time of trial, over four years after the first
accident, she continued to experience discomfort in her neck and upper back,
and chronic pain in her right shoulder and right hip.  When her right shoulder
flares up, she suffers from sharp or throbbing pain radiating from the right
shoulder down her right arm.  Intermittently, she also experiences pain
radiating from her right hip down her right leg.  Her physical limitations
include a mild right-side limp when she carries heavy objects and after
sustained walking; reduced tolerance for stairs; and reduced tolerance for
sustained walking.  She is limited for prolonged periods of sitting and must
take breaks to stretch at 45 to 60 minute intervals.

[178]     Ms. Craig
thought that the plaintiff has not yet reached maximum, physical
rehabilitation, and that the plaintiff’s functional capacity would improve with
further physiotherapy and supervised exercise to improve her muscular strength,
endurance, flexibility and aerobic fitness.

[179]     At the
time of trial, and without the benefit of that therapy, the plaintiff required
some assistance for household chores, gardening and yard work requiring heavy
lifting or sustained pushing and pulling.

[180]     Ms. Rajan
was devoted to her work as a nurse.  Before the accidents, she approached her
work with enthusiasm and had the energy to perform all of the duties of her
position as an operating room nurse while working an alternating schedule of
three shifts one week and two shifts the following week.  Ms. Rajan is now
able to cope with one shift per week at Valley Surgical but suffers from
fatigue, discomfort, and at times, pain either during or after her shift.

[181]     Ms. Shelley
Vorley, the senior operating room nurse at Valley Surgical, confirmed Ms. Rajan’s
evidence that since the third accident her employer has accommodated her by
assigning her as the scrub nurse for shorter operations and having her perform
the somewhat lighter duties of the circulating nurse during longer procedures. 
Ms. Vorley testified that the plaintiff walks slower, sits more often, and
is not “the same Ash” as she was before the third accident.

[182]      Ms. Sheila
Wozney is the office administrator at Valley Surgical.  She gave evidence,
which I accept, that the plaintiff was very keen when she started at Valley
Surgical in March 2010, and that since the third accident she moves more
slowly, and is reluctant to take long shifts.  However, on occasion since the
third accident Ms. Rajan has worked shifts that have extended to 9 to 10
hours, rather than the normal 7 to 8 hours.

[183]     Both Ms. Vorley
and Ms. Wozney acknowledged that the surgeons like Ms. Rajan’s work,
and her work ethic.  Valley Surgical has therefore been willing to accommodate
her with lighter shifts when they are available.

[184]     I find
that while the plaintiff is able to complete one shift in the operating room
per week, she often struggles to do so, and no longer derives the same
enjoyment from her work as she did before the accidents.

[185]     I have
found that as a result of the third accident, the plaintiff suffered from
driving-related anxiety, and that the third accident was also a cause of her
symptoms of depression.  By the time of trial, both the plaintiff’s
driving-related anxiety and her depression had significantly improved.

[186]     The
injuries suffered by the plaintiff in the motor vehicle accidents have
curtailed her physical activities with her children.

[187]     Merabona
Rajan is the plaintiff’s mother-in-law, and has known her for 20 years. 
She sees the plaintiff and her family every Sunday.  Mrs. Rajan described
the plaintiff as being active and energetic, happy and engaged with her
children before the motor vehicle accidents.  Particularly since the third accident,
she is less talkative, is “snappy” with her children, and lacks her former
energy.  Before the accidents, the plaintiff did most of the housework,
laundry, cleaning and cooking for her family.  Mrs. Rajan also testified
that before the accidents, the plaintiff used to help her with heavy
housekeeping tasks and that now their roles are reversed.  Mrs. Rajan also
said the plaintiff no longer prepares meals for gatherings of her extended
family.

[188]     In
cross-examination, Mrs. Rajan agreed that the plaintiff is still a devoted
mother, still bakes and continues to participate in family outings, but does
not walk as far or as fast as she did before the accidents. She thought the
plaintiff continued to do housekeeping, but indicated that her daughter-in-law’s
housekeeping was no longer up to her own high standard.

[189]     I found Mrs. Rajan
to be a straight forward witness who gave her evidence without embellishment. I
find that during bouts of persistent pain the plaintiff is irritable with her
children, but remains devoted to them.

[190]     I also
find that while Ms. Rajan was by the time of trial able to perform much of
the housekeeping, the continuing limits on her ability to do heavier household
work, such as sustained vacuuming or heavy lifting in the garden have reduced the
satisfaction she formerly derived from those activities.

[191]     Mr. Galib
Rajan, the plaintiff’s husband, understandably wanted to support her in his
testimony. Unfortunately, his evidence was not entirely credible.  Mr. Rajan
downplayed the plaintiff’s role in the operation of her late father’s
photocopying business. He was unwilling to acknowledge that Ms. Rajan
managed the business, and involved herself in all aspects of the work, other
than lifting heavy boxes of paper, which she left to her brothers.  Mr. Rajan
also gave evidence that after the third accident, the plaintiff seemed to be
getting better for about a year.  He said that 18 months before trial he
noticed she was really struggling, and rather than getting better, she was
getting worse.  When counsel for the defendants Hutchins pointed out that 18
months before trial corresponded with the death of the plaintiff’s father, Mr. Rajan
disagreed that the onset of the plaintiff’s depression followed the death of
her father.

[192]     I do
accept the evidence of Mr. Rajan, and the plaintiff, that as a result of Ms. Rajan’s
persistent pain, both their social life and their intimate relations have
diminished.

[193]     As a
devout Ismaili Muslim, the plaintiff’s faith is an essential component of her
identity.  Ms. Rajan is unable to sit on the floor for the whole of the
service, or prostrate herself during prayers.  She no longer takes part in
volunteer activities at the Mosque.  Before the accidents, Mr. and Mrs. Rajan
regularly attended Mosque three times a week.  Since the accidents they have
rarely attended. The plaintiff is missing out on a significant part of her
life.

[194]     The
plaintiff testified that the Mosque provides chairs for the elderly and the
profoundly disabled.  She said that in order to obtain a chair, she would have
to come to the mosque an hour or more before the service.  It was suggested to
the plaintiff in cross-examination that she could bring her own chair to the Mosque. 
Ms. Rajan and her husband each testified they did not believe that the Mosque
would accommodate the plaintiff by permitting her to bring her own chair,
although neither had inquired about that accommodation.  The plaintiff also felt
that it would be demeaning and shameful to take a chair among the elderly and
disabled at the back of the Mosque, rather than to sit on the floor with her
friends and other members of the congregation.  On the evidence adduced at
trial, I am unable to determine whether the accommodation suggested by defence
counsel is available. In any event, I accept that as a result of the injuries
she suffered in the accidents, Ms. Rajan has experienced a sense of shame and
embarrassment due to her inability to fully participate in religious services
at the Mosque, and that this has significantly diminished her enjoyment of an
important aspect of her life.

The Law

[195]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life, and loss of amenities.  Compensation awarded should be fair
to all parties, and fairness is measured against awards made in comparable
cases.  Such cases, though helpful, serve only as a rough guide.  Each case
depends on its own unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189.

[196]     In Stapley
v. Hejslet, 2006 BCCA 34 at para. 46, the Court identified a
non-exhaustive list of the factors to be considered when assessing
non-pecuniary damages.  They include the age of the plaintiff; the nature of
the injuries; severity and duration of the pain; disability; emotional
suffering; loss or impairments of life; impairment of family, marital and
social relationships; impairment of physical and mental abilities; and loss of
lifestyle.

[197]     The
assessment of non-pecuniary damages is also influenced by each plaintiff’s
personal experiences in dealing with her injuries and their consequences, and
the plaintiff’s ability to articulate that experience: Dilello v.
Montgomery, 2005 BCCA 56 at para. 25.

[198]     The
plaintiff, relying upon Marois v. Pelech, 2007 BCSC 1969, aff’d 2009
BCCA 286, Morlan v. Barrett, 2010 BCSC 176, Zen v. Redhead, 2011
BCSC 190, Prince Wright v. Copeman, 2005 BCSC 1306 and Demello v.
Chaput, 2013 BCSC 1006, submits that an appropriate award for non-pecuniary
damages is $120,000.

[199]     The
defendants submit that the appropriate range for global non-pecuniary damages
in this case is between $65,000 and $75,000, less a deduction for failure to
mitigate.  The defendants rely upon Tait v. Dumansky, 2012 BCSC 332, McKay
v. Powell, 2012 BCSC 1935, Sangha v. Pun, 2008 BCSC 921, Chaban
v. Chaban, 2009 BCSC 87, LaFrance v. Natt, 2009 BCSC 1147, and Yeung
v. Dowbiggin, 2012 BCSC 206.

[200]     In Marois,
the 55-year-old female plaintiff had by the time of trial suffered from
significant anxiety and depressive disorders for five and a half years.  She
was unlikely to return to her pre-accident level of emotional functioning.  In
addition, she suffered from chronic pain disorder as a result of soft tissue
injuries to her neck, mid-back and low back.  In awarding non-pecuniary damages
of $130,000, the court found that the accident had changed the plaintiff’s life
dramatically.  The psychological injuries suffered by the plaintiff in Marois
were more significant than those sustained by Ms. Rajan.

[201]     In Morlan,
a 50-year-old female plaintiff suffered soft tissue injuries to her neck,
shoulder and upper back in two motor vehicle accidents.  She was diagnosed as
suffering from fibromyalgia.  The plaintiff had been a "high energy
perfectionist" before the accidents.  As a result of the defendants’
negligence she suffered from fatigue and constant and widespread pain which she
managed by consuming large quantities of prescription painkillers.  Her
prognosis was guarded and her condition had slightly deteriorated over the year
before trial.  In Morlan, where the plaintiff’s pain was more widespread
and constant than in the case at bar, the court assessed non-pecuniary damages
in the amount of $125,000.

[202]     In Zen,
the 45-year-old plaintiff, who enjoyed athletics as a central part of his life
before the accident, suffered injuries including chronic back pain, headaches,
an adjustment disorder, dizziness and a minor cognitive dysfunction.  The court
awarded non-pecuniary damages in the amount of $110,000.

[203]     In Demello,
the 32-year-old plaintiff suffered soft tissue injuries to his neck and back in
the first accident, which were exacerbated by two subsequent accidents.  The court
found that the accidents had a devastating effect on the plaintiff’s personal
and work life.  The plaintiff would continue to recover to 80% or 90% of his
pre-accident functional capacity but would continue to experience intermittent
pain.  The court assessed non-pecuniary damages of $100,000.

[204]     In Chaban,
the plaintiff, a 36-year-old female medical office assistant, was injured in
three motor vehicle accidents.  She had a prior history of anxiety and
depression but was in good physical shape and was active before the accidents. 
The plaintiff suffered soft tissue injuries to her neck, shoulders, back and
right hip in the first accident which were exacerbated in the second and third
accidents.  The court also found that the accidents aggravated her pre-existing
post-traumatic stress disorder.  At the time of trial, her prognosis was
moderately optimistic, although she continued to experience chronic pain in her
hip and SI joint.  The court assessed non-pecuniary damages at $75,000.  The
distinguishing feature of Chaban is that the plaintiff’s personal and
work life had not suffered.  The court found that the plaintiff was fully
functional in her job and had not lost any time off from work.

[205]     In Yeung,
the plaintiff, a 28-year-old female government clerk, suffered injuries in four
minor motor vehicle accidents between 2008 and 2011.  The court found she
suffered mild depression and anxiety as a result of the accidents.  Her
physical symptoms, which included neck, back, shoulder and hip pain, were not
extreme but were persistent.  The psychological effects of the repeated
accidents had seriously affected the plaintiff’s ability to enjoy life.  The
court, in awarding non-pecuniary damages of $85,000, found that while the
plaintiff’s condition was likely to improve, she had spent four years in a
state of turmoil and physical pain.

[206]     These
authorities provide some guidance by illustrating the range of non-pecuniary
damages awarded to plaintiffs who suffered both soft tissue injuries and
emotional or psychological injuries that were similar, in varying degrees, to
the injuries suffered by the plaintiff in this case.  Ultimately, the court’s
assessment of damages for pain and suffering and loss of enjoyment of life must
be tailored to the particular circumstances of the plaintiff’s case.

Conclusion

[207]     Taking
into account all of the Hejslet factors, the authorities cited by
counsel, and the particular circumstances of the plaintiff, I assess damages
for pain and suffering and loss of enjoyment of life in the amount of $90,000.

[208]     I have
found that the two most serious and persistent injuries suffered by the
plaintiff are the injuries to her right shoulder and right hip.  I find that
the soft tissue injuries to the plaintiff’s upper back, neck and right shoulder
and her headaches, all of which are indivisible injuries, caused 50% of Ms. Rajan’s
non-pecuniary damages.  The remaining 50% of the plaintiff’s non-pecuniary damages
are attributable to the right hip injury, driving-related anxiety and
depression, all of which are divisible injuries resulting from the third
accident.

Loss of Earning Capacity

Past Loss
of Earning Capacity

[209]     Compensation
for past loss of earning capacity is based on what the plaintiff would have,
not could have, earned but for the injury she sustained: Rowe v. Bobell
Express Ltd., 2005 BCCA 141; M.B. v. British Columbia, 2003 SCC 53.

[210]     Under
s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, a
plaintiff is entitled to recover damages only for his or her past net income
loss.  This means that in the ordinary course, the court must deduct the amount
of income tax payable from lost gross earnings: Hudniuk v. Warkentin,
2003 BCSC 62; Lines v. Gordon, 2009 BCCA 106.

[211]     The burden
of proof of actual past events is a balance of probabilities.  An assessment of
loss of both past and future earning capacity involves consideration of
hypothetical events.  The plaintiff is not required to prove these hypothetical
events on the balance of probabilities.  The future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial possibility
and not mere speculation: Athey v. Leonati at para. 27.

[212]     On a claim
for past loss of earning capacity, the plaintiff must first establish on a
balance of probabilities that the injuries she sustained caused an impairment
of her earning capacity.  Then, in determining what might have happened in the
past to enable the plaintiff to earn income, but for the accident, the court
must decide if the event was a real and substantial possibility and then
determine the likelihood of it occurring: Smith v. Knudsen, 2004 BCCA
613 at paras. 28, 29, 36 and 37.

[213]     The
plaintiff claims that as a result of the first accident she lost five months of
wages as a nurse working half time at Burnaby Hospital where she earned $36.56
per hour plus accruable sick time and other benefits.  Ms. Rajan started
her GRTW on September 15, 2009 and completed it on October 30, 2009.  The
plaintiff makes no claim for past income loss during the eight weeks in June
and July of 2009 when she would have been off work in any event as a result of
her hysterectomy.

[214]     Ms. Rajan
also claims that but for the first accident and the injuries she later suffered
as a result of the second and third accidents, she would have returned to .75
time employment in September 2009 when her daughter entered grade 1 and would
have been employed full time after September 2010.

[215]     The
plaintiff makes no claim for loss of earnings for 2011 and 2012.  In January
2011, she underwent surgery for the removal of her left eye and had
complications requiring further surgical intervention in January 2012.  She
acknowledges that in January 2011 through January 2012 her eye surgeries and
attendant complications prevented her from working.  Following the death of her
father in November 2011 and through 2012, her commitments to the operation and
winding down of her father’s photocopying shop would have precluded her from
working any more shifts as an operating room nurse than she actually did work
at Valley Surgical.

[216]     In my view,
there is a real and substantial possibility that but for her injuries Ms. Rajan
would have increased her hours of work in September 2009, when both her children
were in elementary school, and would have sought full-time employment in
September 2010.  I accept that Mr. and Mrs. Rajan had a plan to
enable the plaintiff to increase her hours of work.  Some assistance with child
care was available from both Ms. Rajan’s mother and Mr. Rajan’s
parents.  In addition, Mr. Rajan had the flexibility to work two days per
week from the family home, and to look after the children on those days.

[217]     Ms. Lynn
Walters, the plaintiff’s managing nurse at Burnaby General Hospital, and Ms. Rosemary
Taylor, the Burnaby General health services manager, both testified to the
plaintiff’s enthusiasm for her work and to the availability of shifts for
nurses of the plaintiff’s seniority.

[218]     Ms.
Walters has 40 years’ experience in nursing.  As the nurse managing the
operating room and several related departments at Burnaby General Hospital, she
interviewed and hired the plaintiff in 2006.  Mrs. Walters described the
plaintiff as professional, very organized, and willing to help out where she
was needed. According to Ms.
Walters, whose evidence I accept, Ms. Rajan was both an excellent
operating room nurse and very reliable in the booking office, where she was
responsible for scheduling procedures, and coordinating the equipment and
support required to keep five operating theatres operating efficiently.  Ms. Walters
observed the plaintiff working in the operating room on a few occasions between
2006 and 2008, when Ms. Walters left Burnaby Hospital.  She said she would
rate the plaintiff in the top 15% of the nurses with whom she has worked.

[219]      Ms. Shelley
Vorley explained there was also the opportunity for a nurse to combine casual
shifts at Burnaby General, or elsewhere in the Fraser Valley Health Authority,
with shifts at private facilities, such as Valley Surgical, in order to work
the equivalent of full-time hours.

[220]     As
plaintiff’s counsel submitted, Ms. Rajan had demonstrated her interest in
working up to 0.75 time before the first accident, when rumours began to
circulate of the displacement of booking nurses.  The plaintiff applied at BCIT
for a clinical nursing instructor’s position which involved 0.50 time in the
classroom and 0.25 clinical teaching time in the operating room.

[221]     I must
also take into account the contingencies that the plaintiff might not have
achieved consistent 0.75 time in and after September 2009, or full-time hours
in September 2010.  Ms. Rajan had not worked 0.75 time since 2002, prior
to the birth of her daughter.  The exigencies of parenting two young children,
even with the assistance available to her, caring for the children if they were
ill, and her commitment to volunteering, both at school and in the community, might
all have restricted her ability to increase her hours of work as she planned.

[222]     The
plaintiff’s expert economist, Mr. Darren Benning, has provided an estimate
of the plaintiff’s pre-trial loss of earning capacity based on assumptions that
had the accidents not occurred, Ms. Rajan would have increased her hours
to 0.75 time in September 2009 and to full-time in September 2010.

[223]     In
preparing his estimate, Mr. Benning took into account the plaintiff’s
hourly rates at Burnaby General of $36.56 at the time of the first collision, and
the increases to $38.10 in April 2009 and to $39.24 in May 2010.  Mr. Benning
also assumed that had the first accident not occurred Ms. Rajan could have
used some of her accrued sick time to offset her hysterectomy-related income
loss.

[224]     Mr. Benning
also took into account that the plaintiff, in addition to working with the
Fraser Health Authority, commenced employment with Valley Surgical on March 17,
2010 at an hourly rate of $40.10, which increased to $41.24 effective April
2010 and $42.42 effective April 2011.

[225]     The
plaintiff’s expert allowed for 0.5 earnings to August 2009, increasing to 0.75
in September 2009 and to full-time earnings based on 36 to 37.5 hour work week
commencing September 2010.

[226]     Mr. Benning
did not calculate any past income loss for the period between January 1, 2011
and February 28, 2013, other than the plaintiff’s entitlement to Employment
Insurance sickness benefits following her first eye surgery in January 2011. 
He assumed that but for the accidents, the plaintiff would have qualified for
EI sickness benefits totalling $7,020.

[227]     Mr. Benning
estimated the plaintiff’s loss of earning capacity to the time of trial net of
income tax, and other statutory deductions in the amount of $91,332.

[228]     The
plaintiff acknowledges that $1,800 per year must be deducted from Mr. Benning’s
calculations.  The plaintiff’s expert had attributed to Ms. Rajan the
opportunity to earn this amount each year under the degree qualification
differential and special clinical preparation provisions of her collective
agreement.  However, the plaintiff led no evidence at trial to establish her
entitlement to those benefits.

[229]     Because Mr. Benning
has estimated the plaintiff’s past loss of income for 21 months from February
2009 through December 2010 (excluding June/July 2009), and for the months of
March and April 2013, his estimate of the plaintiff’s pre-trial loss of earning
capacity must be reduced by $3,450 to eliminate the qualification differential
and special clinical preparation benefits he included in his calculations.

[230]     After
making that deduction, Mr. Benning’s estimate of the plaintiff’s net loss
of income is reduced to $87,882.  From that amount, I would deduct a further
10% to allow for the contingency that Ms. Rajan may not have succeeded in
increasing her shifts to a consistent level of 0.75 in September 2009, or to
full-time in September 2010.  Rounding the result to the nearest hundred
dollars, I assess the plaintiff’s damages for past loss of earning capacity to
the date of trial in the global amount of $79,000.

[231]     The
defendant Hudon is solely liable for the plaintiff’s loss of earning capacity
between the first and second accidents.  But for the negligence of Mr. Hudon,
Ms. Rajan would not have incurred that loss.

[232]     I also
find that the defendant Bains is solely liable for the plaintiff’s damages for
loss of earning capacity between the second and third accidents.  While the
second accident exacerbated the injuries suffered by the plaintiff in the first
accident, by May 18, 2010, Ms. Rajan’s residual symptoms from the first
accident did not interfere with her ability to work as an operating room nurse. 
By October 30, 2009, Ms. Rajan had successfully completed her GRTW at
Burnaby General.  Ms. Rajan testified that when she started her GRTW in
September 2009 she found standing for long periods in static positions, lifting
and handling patients quite difficult, and on occasion went home, complaining
of pain.  However, following the successful completion of her GRTW, she worked
all of the shifts she scheduled at Burnaby General Hospital in the months of
January, February, March and April of 2010.   Further, in March 2010, Ms. Rajan
applied for and obtained her casual position at Valley Surgical.  During the
hiring process, she was required to assist as a third person in the operating
room.  She was only hired at Valley Surgical after the surgeons observed her
functioning in the operating room.

[233]     Before the
second accident, the plaintiff was working two shifts per week, divided between
Valley Surgical and Burnaby General.

[234]     The
plaintiff was off work for six weeks as a result of the second motor vehicle
accident of May 18, 2010.  She was not eligible, and did not receive EI
benefits following the second accident.  Six weeks after the second accident, Ms. Rajan
began a graduated return to work at Valley Surgical, initially working one
shift a week.  Her employer provided an informal accommodation by assigning her
to shorter surgeries and lighter surgical duties.  Ms. Rajan only worked
one shift at Burnaby General Hospital in September 2010 before the third motor
vehicle accident.  Since the third accident, the plaintiff has not returned to
work at Burnaby General.  She maintains that she cannot stand for extended
periods of time and would not be able to perform duties of an operating nurse
there.

[235]     In
September 2011, the plaintiff returned to work at Valley Surgical.

[236]     With
respect to the third accident, I have found that the plaintiff’s complaint of
pain radiating from her right shoulder down her right arm was the result of
successive traumas to her right shoulder, and as such is an indivisible injury. 
The plaintiff suffered both divisible and indivisible injuries in the third
accident.  All of the defendants are jointly and severally liable for the
plaintiff’s past loss of earning capacity from September 17, 2010 to the date
of trial.  As among the defendants, 50% of that loss is attributable to the
divisible injuries caused by the negligence of the defendant Hutchins.  The
remaining 50% is attributable to the plaintiff’s indivisible injuries.  The
apportionment of fault for Ms. Rajan’s indivisible injuries is discussed
later in these Reasons.  That apportionment will apply to the 50% of the
plaintiff’s damages for past loss of earning capacity between September 17,
2010 and the date of trial flowing from her indivisible injuries.

[237]     Counsel
may make further submissions if they are unable to agree on the precise division
of damages for past loss of earning capacity.

 Loss of Future
Earning Capacity

[238]         
The
standard of proof for the evaluation of hypothetical events that may affect an
award of damages for future loss of earning capacity is simple probability,
rather than the balance of probabilities: Athey v. Leonati.  As the
Court of Appeal held in Rosvold v. Dunlop, 2001 BCCA 1 at para. 9:

[9]        …
Possibilities and probabilities, chances, opportunities and risks must all be
considered, so long as they are a real and substantial possibility and not mere
speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.

[239]         
In
Rosvold at paras. 10 and 11, the Court of Appeal described the task
of the trial judge as follows:

[10]      The
trial judge’s task is to assess the loss on a judgmental basis, taking into
consideration all the relevant factors arising from the evidence: Mazzuca v.
Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.) at para. 121, aff’d
[1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors may be
relevant can be found in Parypa v. Wickware, supra, at para. 31;
Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J.  They include:

[1]        whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

[2]        whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

[3]        whether
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]        whether
the plaintiff is less valuable to himself as a person capable of earning income
in a competitive labour market.

[11]      The
task of the court is to assess damages, not to calculate them according to some
mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning
capacity as a capital asset has been established, that impairment must be
valued. The valuation may involve a comparison of the likely future of the
plaintiff if the accident had not happened with the plaintiff’s likely future
after the accident has happened. As a starting point, a trial judge may
determine the present value of the difference between the amounts earned under
those two scenarios. But if this is done, it is not to be the end of the
inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J. No. 644
(C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness
and reasonableness of the award must be considered taking into account all the
evidence.

[240]         
In
Perren v. Lalari, 2010 BCCA 140, Garson J.A., after reviewing the
authorities, identified the basic principles articulated in Athey and Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, as:

1.         A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and

2.         It
is not loss of earnings, but, rather, loss of earning capacity for which
compensation must be made [Andrews at 251].

[241]     As Garson
J.A. emphasized in Perren at para. 32, the plaintiff must always
prove there is a real and substantial possibility of a future event leading to
an income loss.  If the plaintiff meets that burden, then the plaintiff may
prove the quantification of the loss of earning capacity on either an earnings
approach or a capital asset approach.  Where the loss is not readily
measurable, the capital asset approach will be more useful than the earnings
approach.

[242]     Where the
assessment is based on the capital asset approach, the court must consider the
four questions in Brown and make findings of fact concerning the nature
and extent of the plaintiff’s loss of capacity and how that loss may impact the
plaintiff’s ability to earn income: Morgan v. Galbraith, 2013 BCCA 305
at para. 56.

[243]     I must
first determine whether the plaintiff has established a real and substantial
possibility of a future event leading to an income loss.  If so, the court must
assess, rather than calculate damages according to the likelihood of the event
occurring.  The award must be adjusted for both positive and negative
contingencies, and the court must consider the overall fairness and
reasonableness of the award: Rosvold at para. 11.

  Positions of the Parties on Loss of Future
Income Earning Capacity

[244]     The
plaintiff submits that but for the accidents she would have worked full-time as
a unionized registered nurse from the date of trial to retirement at age 65 years. 
Based on those assumptions and using the current discount rate of 1.5% per
annum for future income loss, Mr. Benning has estimated the plaintiff’s
“without-accident” future income loss in the amount of $1,596,010.

[245]     In
estimating the plaintiff’s without accident employment income, Mr. Benning
allowed for the negative labour market contingencies of non-participation in
the labour force, unemployment, and part-time work, based for the most part on
statistical averages applicable to British Columbia females of Ms. Rajan’s age
and level of education. The one exception was Mr. Benning’s assumption that the
plaintiff would never voluntarily have worked part-time.  I will comment on
that assumption later in these Reasons. In addition, Mr. Benning allowed for
the contingency of premature death using Statistics Canada survival rates for
British Columbia females.

[246]     The
plaintiff says that she is now only capable of working one day a week with
difficulty and that but for the motor vehicle accidents, she would be working
five days a week.  Accordingly, Ms. Rajan submits that her
without-accident earning capacity has been reduced by 75% to 80%, and that she
has suffered a loss in the range of $1,197,000 to $1,276,800.

[247]     The
defendant Hudon argues that any restrictions on the plaintiff’s capacity to
perform her duties as an operating room nurse occurred after the second
accident, when she was accommodated at Valley Surgical with the lighter
shifts.  The defendant Hudon also points out that in cross-examination, Ms. Rajan
stated that her hip injury reduced her ability to stand during long surgeries. 
Mr. Hudon contends that Ms. Rajan would have suffered the same loss
of functional capacity after the third accident regardless of whether the first
accident had occurred and says he should not be liable for any damages for
future loss for earning capacity.

[248]     The answer
to the submission is that I have already found that the plaintiff’s complaint
of pain radiating from her right shoulder down her right arm is the result of
successive traumas to the right shoulder sustained by Ms. Rajan in each of the
three accidents.  As such, it forms a part of the plaintiff’s indivisible
injuries for which all defendants are jointly and severally liable.  The
plaintiff’s indivisible right shoulder injury and her divisible right hip
injury have both restricted her ability to fully perform all of the duties of
an operating room nurse on a sustained basis.

[249]     The
defendant Bains argues that the plaintiff has not demonstrated any impairment
of her future earning capacity.  Ms. Bains says that in April 2012 Ms. Rajan
was cleared to return to work by CBI.  The plaintiff gave evidence on her June
7, 2012 examination for discovery that she intended to replace the three days a
week she was then working in her late father’s photocopying business with
shifts at Burnaby General.  The defendant Bains contends that the plaintiff has
not shown that any ongoing discomfort or pain she suffers as a result of the
accidents will make her less marketable or reduce her ability to earn income
from all types of employment, or to take advantage of the job opportunities
available to her.

[250]     The
Hutchins defendants also argue that Ms. Rajan has not suffered any future
loss of earning capacity as a result of the accidents.  They argue that the
plaintiff’s depression is one of the main reasons for her curtailing her hours
of work and that it was caused by the passing of her father.  I do not accept
that submission.  I have already found that the third accident and non-tortious
factors, including the sudden death of the plaintiff’s father, were equal
causes of her depression.

[251]     The
Hutchins defendants also contend that Ms. Rajan’s determination to manage
her father’s business from November 2011 until the end of February 2013
resulted in her limiting her hours of work as a nurse and the cessation of her rehabilitation
program.  In addition, the Hutchins defendants argue that Ms. Rajan failed
to mitigate her damages by not continuing with her exercise program after her
discharge from CBI, and by failing to contact Burnaby General to book casual
shifts at or about the time of her examination for discovery in June 2012.

[252]     Because
the defendants’ submissions that the plaintiff has failed to mitigate her
damages apply to both non-pecuniary damages and future pecuniary loss, I will
address mitigation under a separate heading later in these Reasons.

  Future Loss of
Income Earning Capacity: Discussion and Analysis

[253]     I will
begin by considering whether the plaintiff has established a real and
substantial possibility of a future event leading to income loss.

[254]     When Dr.
Craig, an expert in physical medicine and rehabilitation, examined the plaintiff
on September 24, 2010, a week after the third accident, he thought that the
overall prognosis for Ms. Rajan to return to her prior work was favourable. 
However, he recognized that it was then too early to provide a prognosis with
much certainty.

[255]     The
prognoses of Drs. Jones, Brooks and Hunt ranged from guarded to pessimistic. 
Dr. Jones offered a guarded prognosis for the plaintiff’s full recovery but
thought there was room for further improvement with ongoing therapy.  Ms.
Rajan’s general practitioner thought the plaintiff might need to consider
changing the focus of her nursing career from the operating room to less
physically demanding nursing work if her right hip and right shoulder symptoms
continued.

[256]     Dr. Hunt
opined that Ms. Rajan was totally disabled for the foreseeable future from
performing the duties of an operating room nurse, either full-time or
part-time.  In Dr. Hunt’s view, the plaintiff was totally temporarily disabled
from performing any work of even a sedentary nature until she had the benefit
of his recommended eight-month intensive treatment program.

[257]     Dr. Hunt
gave evidence that 60% of patients with chronic pain who completed an intensive
multi-disciplinary pain program return to the workforce in some capacity.  He
thought that with the benefit of the eight-month program he recommended,
Ms. Rajan would probably be able to return to the workforce performing
sedentary duties 20 hours a week.

[258]     I have
already rejected Dr. Hunt’s opinion that Ms. Rajan is incapable of even
sedentary employment.  That opinion is contrary to the plaintiff’s self-report
of her daily activities to Ms. Craig, the results of Ms. Craig’s functional
capacity evaluation of the plaintiff, and Ms. Rajan’s continuing ability, with
some accommodation, to cope with one shift a week in the operating room at
Valley Surgical.

[259]     Dr. Brooks
concurred with Ms. Craig’s findings that the plaintiff did not meet all of the
physical demands of her job as an operating nurse, and that she was working
beyond her capacity at Valley Surgical.  At the time of his examination of the
plaintiff in August of 2012, he thought she had not reached maximum medical
rehabilitation.  Dr. Brooks thought Ms. Rajan was moderately impaired by her
neck, shoulder and right hip symptoms, and that she might have to work in a
less physically demanding nursing position than the operating room, unless
there were further advances in her rehabilitation.  In Dr. Brooks’ opinion, the
prognosis for the plaintiff’s full-time employment as an operating room nurse
was in doubt.  She would have to realize significant gains in rehabilitation
before she could meet the demands of the operating room.  In cross-examination,
Dr. Brooks agreed that some branches of nursing would be easier for the
plaintiff than work in the operating room.

[260]     Mr. Niall
Trainor, an expert in vocational rehabilitation assessment, assessed Ms. Rajan
on September 20, 2012 and provided a report dated November 12, 2012.  In
providing his opinion, Mr. Trainor relied upon Ms. Rajan’s
self-reporting, standardized vocational aptitude and vocational interest
testing and his review of the medical documentation provided to him by
plaintiff’s counsel.

[261]     At the
time of the assessment, Ms. Rajan complained of intermittent headaches,
pain in the neck, right shoulder, upper back and right hip.  The plaintiff
informed Mr. Trainor that she was working one day a week at Valley
Surgical and was working three days a week winding down her father’s printing
and copying business.

[262]     Mr. Trainor
thought Ms. Rajan possessed some assets that enhanced her employability. 
Those assets included her strength in verbal and numerical reasoning abilities,
reading comprehension at the 94^th percentile, strong communication
skills, well developed computer literacy, 20 years of work experience, strong
interpersonal skills and a positive work ethic.

[263]     Based on
the plaintiff’s self-reporting, Mr. Trainor understood the plaintiff had
limitations for moderate to heavy lifting and carrying, prolonged static
postures, and repetitive activity involving her neck, right shoulder, upper
back and right hip.  Based on his review of the medical information, he
understood that as result of the accidents, Ms. Rajan had developed
chronic pain and functional limitations and that she was now poorly suited to
pursue a career as an operating room nurse.  Mr. Trainor understood that
the plaintiff was coping with working one day a week as a circulating nurse at Valley
Surgical and the plaintiff intended to close her father’s business, which would
free up additional time for her to devote to rehabilitation.  He thought that
as a result of the plaintiff’s physical impairments, she was more likely to
require workplace accommodations.

[264]     Mr.
Trainor  gave evidence that while employers in the health care sector
recognize, at an institutional level, their duty to accommodate injured or
disabled workers, as a practical matter, individual managers are often
reluctant to hire disabled workers and make necessary workplace adjustments to
accommodate them.  Both the plaintiff and Ms. Rosemary Taylor testified that
Burnaby General expected an employee who completed a GRTW to be capable of
fully performing all of the duties of her position.

[265]      In Mr. Trainor’s
opinion, few employers are willing to provide long-term accommodation and
accordingly, the plaintiff was at a competitive disadvantage against
able-bodied workers.  Mr. Trainor thought that Ms. Rajan was
significantly less competitively employable than she was before the accidents
and that there were fewer alternative occupations open to her now than before
the accidents.

[266]     Mr. Trainor
did identify some areas of nursing that were likely more feasible for the
plaintiff than working in the operating room.  He thought that with her current
qualifications, the plaintiff could pursue employment as an insurance nurse, a
public health nurse, a nurse educator, a visiting nurse for new mothers, a
tele-nurse, or a nurse working in a doctor’s office as a medical secretary.  In
Mr. Trainor’s opinion, any of those positions would be more compatible with her
functional limitations than working in the operating room.

[267]     Mr.
Trainor reported there are numerous job opportunities for registered nurses in
these and other fields.  Based on Statistics Canada data, Mr. Trainor has
provided evidence that in British Columbia the average annual salary for
medical secretaries as of 2010 was $39,000, and the average annual income for
registered nurses, including those working in public health, was $68,700.  Mr.
Szekely, the defendants’ economist, has provided evidence, derived from Statistics
Canada data, that in 2013 the average annual income for registered nurses
working full-time was $76,029.

[268]     Mr.
Trainor also identified other speciality fields of nursing that would be less
physically demanding for the plaintiff than working in the operating room, but
which would require retraining, including IV therapy, cardiology, psychiatric
nursing, neonatal care or occupational health nursing.

[269]      In
addition, Mr. Trainor thought Ms. Rajan had the potential to pursue other
health and technology occupations, such as dietician, speech therapist,
cardiology technologist or medical lab assistant, all of which would require
re-training for up to five years at an estimated cost of $6,000 per annum.

[270]     Mr. Trainor
thought the plaintiff‘s employability would be improved by better pain coping
skills.  He recommended that she take a multi-disciplinary pain program, and
said that such programs are often a catalyst for future success in vocational
rehabilitation.

[271]     In
cross-examination, Mr. Trainor acknowledged that he was not aware that Ms. Rajan
had given evidence on discovery that she had contacted Burnaby Hospital in June
2012 about organizing a return to work.  Mr. Trainor testified that Ms. Rajan
had told him that she and Burnaby General had talked in August 2012 about a
return to work, but had agreed it was premature.  Mr. Trainor understood the
plaintiff was pessimistic about her ability to return to Burnaby General as an
operating room nurse.  In cross-examination, Mr. Trainor said that if he had
been told that the plaintiff was pursuing a return to work at Burnaby General
and understood that facility was the preferred place of employment for the
plaintiff, he would have recommended that after attending a pain management
program she work at both Valley Surgical and Burnaby General.

[272]     Mr. Trainor
agreed that the plaintiff did not tell him that she was unable to return to
work at Burnaby General because she was working three days a week at the copy
center and one to two days at Valley Surgical.  Nor did the plaintiff tell Mr. Trainor
that when she wound down her dad’s business, she planned to replace her time in
the photocopy shop with up to three shifts per week at Burnaby General.

[273]     The
defendants contend the Court should give little weight to Mr. Trainor’s
opinion that the plaintiff is not capable of employment as an operating room
nurse when she was actually working in that capacity every week.  However, Ms. Rajan
was only coping with some difficulty with working  one shift a week at Valley
Surgical.  Furthermore, her employer frequently accommodates her by having her
perform the lighter duties of a circulating nurse, or by assigning her to
assist with short operations.

[274]     Dr. Sovio
thought the plaintiff’s self-reporting of profound disability was incompatible
with the results of his physical examination, which showed normal ranges of
motion in the neck, shoulders and right hip, no evidence of nerve root damage
and no physical abnormalities that would account for Ms. Rajan’s elevated
perception of her disability.  In Dr. Sovio’s view, Ms. Rajan was capable of
functioning when she chose to do so; for example, by working one day a week as
an operating room nurse.  I accept Dr. Sovio’s opinion that the plaintiff is
capable of functioning well above the sedentary level.  I have also accepted
the evidence of Dr. Jones that the plaintiff continues to experience
significant and persistent pain in her right shoulder and right hip, and Ms.
Rajan’s evidence that she continued to experience flare-ups in her right hip
and right shoulder problems to the time of trial.  In commenting on the
plaintiff’s ability to complete one shift a week at Valley Surgical, Dr. Sovio
discounted the price Ms. Rajan pays in fatigue, and at times pain, and the fact
that her employer frequently accommodates her with the lighter duties of the
circulating nurse.

[275]     I find
that at the time of trial, the plaintiff, as a result of her injuries was not
capable of working as an operating room nurse at her pre-accident level of
three shifts one week and two the next, let alone at 0.75 time or full-time.

[276]     I find
that Ms. Rajan has met the burden of establishing a real and substantial
possibility that her capacity to earn income has been impaired by the
accidents. As a result of her injuries, the plaintiff has been rendered less
capable overall from earning income from all types of employment.  I accept Mr.
Trainor’s opinion that while Ms. Rajan continues to suffer significant pain in
her right shoulder and right hip she will be less marketable as an employee to
potential employers.  While Valley Surgical has provided her with informal
workplace accommodations, both her seniority and the availability of lighter
duties will limit her to no more than one, or occasionally, two shifts per week
there.  Until the plaintiff recovers her endurance and stamina and has received
treatment providing further relief for her right hip and right shoulder
complaints, she has lost the ability to take advantage of all of the job
opportunities otherwise available to her, but for the accidents.  Ms. Rajan’s
sense of identity is closely tied to her career as a nurse.  She now places
less value on herself as a person capable of earning income in a competitive
market than she did before the accidents.

[277]     I find
that but for the accidents, Ms. Rajan would likely have continued her
employment as an operating room nurse until retirement at age 65.  I also find
that it is likely that but for the accidents, Ms. Rajan would have worked at or
near full-time hours from the trial until age 55 or 60, when the physical
demands of her work would likely have resulted in a voluntary reduction of her hours
to no more than 0.75 time.

[278]     The
plaintiff has suffered an impairment of a capital asset, her ability to earn
income.

[279]     I turn now
to an assessment of the contingencies, both positive and negative, affecting an
award of damages to the plaintiff for loss of future earning capacity.

[280]     Absent the
accidents, the plaintiff may have been unemployed for periods of time due to
such factors as unrelated illness, strikes or lock-outs, or the need to care
for members of her family. She may also have chosen to work half- time or less
while studying for her Master’s Degree in Nursing.

[281]     On the
positive side, the plaintiff’s strength and stamina will likely improve as she
benefits from a directed exercise program.  With exercise and some training in
pain management, there is a real and substantial possibility that Ms. Rajan
will learn to cope with intermittent flare-ups of her right shoulder and to
overcome her present exaggerated sense of her physical limitations.  Further,
Drs. Brooks and Sovio both agreed that Ms. Rajan’s trochanteric bursitis of the
right hip is treatable with exercise, anti-inflammatories, and if necessary,
cortisone injections.  Successful treatment of the plaintiff’s right hip would
substantially improve her capacity to stand for prolonged periods and to meet
the physical demands of her duties as an operating room nurse on a sustained
basis.  While there is a real and substantial possibility, which I assess at 80
%, that with exercise and the other treatments recommended by Drs. Brooks and
Sovio, the plaintiff will achieve a substantial improvement to her right hip
complaint, I must also take into account the contingency that Ms. Rajan may not
enjoy any significant improvement to that condition.

[282]     The
plaintiff has a strong commitment to nursing.  It is likely that she will seek
to continue her career as a nurse, rather than re-train for employment in some
other health-related discipline.

[283]     If the
plaintiff is unable to obtain a level of functioning that permits her to work
full-time as an operating room nurse, there is a real and substantial
possibility she will find employment in one of the less physically demanding
fields of nursing for which she is already qualified, or for which she would
qualify with some additional training. If the plaintiff pursues another
specialty diploma in nursing, she may be out of the workplace while she does
so, or she may only work part- time while she studies.

[284]     I also
recognize that if the plaintiff pursues employment in another nursing
discipline, there is a real possibility that at least initially she may have to
accept temporary work or part-time employment until she secures a full-time
position.

[285]     There is
also a real possibility that it may take the plaintiff some time to find new
employment, or to replace her employment at Valley Surgical, if she were to
lose that position for any reason.  If despite exercise and further treatment
the plaintiff’s workplace functioning continues to be limited by her right hip
and shoulder injuries, then as Mr. Trainor has stated, there is the risk that
some employers will regard her as a less desirable candidate, even for
positions within her functional capabilities, than prospective employees
without those restrictions.

[286]     Taking all
of these factors into account, and adopting the capital asset approach, I find
that amount approximating three years’ earnings as a registered nurse is a
reasonable award for Ms. Rajan’s future loss of earning capacity.  Mr. Benning
estimated the plaintiff’s without accident annual income at the time of trial
at $90,356.  He has assumed 37.5 hours of employment per week, with equal
numbers of day, evening and night shifts.

[287]     The
defendants’ economist, Mr. Szekely, has estimated the full-time income for a
registered nurse at the time of trial at $76,029, based on 2006 Statistics
Canada Census data for registered nurses who worked 30 hours or more per week
year around.   Mr. Szekely then adjusted the annual income data to reflect the
24.4% increase in hourly rates for registered nurses between 2005 and 2013.  In
my view, Mr. Szekely’s estimate, derived from census data for actual earnings
of registered nurses, provides the more accurate estimate of the plaintiff’s
without accident income.  I assess the plaintiff’s damages for loss of future
earning capacity in the amount of $225,000.

[288]     I find
that 50% of the plaintiff’s future loss of earning capacity is attributable to
the divisible injuries for which the Hutchins defendants are solely liable. 
The remaining 50% is attributable to the indivisible injuries for which the defendants
are jointly and severally liable.  The apportionment of fault on the defendants
I make later in these Reasons will apply to the 50% of the plaintiff’s damages
for loss of future earning capacity that results from her indivisible injuries.

Cost of Future Care

[289]     Claims for
cost of future care must be medically justified and reasonable.  The award of
damages must be moderate and fair to both parties: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.) at para. 210.

[290]     In Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at paras. 21-22 McLachlin
C.J. stated:

21        Damages for cost of future care are a matter of
prediction.  No one knows the future.  Yet the rule that damages must be
assessed once and for all at the time of trial (subject to modification on
appeal) requires courts to peer into the future and fix the damages for future
care as best they can.  In doing so, courts rely on the evidence as to what
care is likely to be in the injured person’s best interest.  Then they calculate
the present cost of providing that care and may make an adjustment for the
contingency that the future may differ from what the evidence at trial
indicates.

22        The resulting award may
be said to reflect the reasonable or normal expectations of what the injured
person will require.  Jane Stapleton, "The Normal Expectancies Measure
in Tort Damages" (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58,
that the tort measure of compensatory damages may be described as the "’normal
expectancies’ measure", a term which "more clearly describes the aim
of awards of compensatory damages in tort: namely, to re-position the plaintiff
to the destination he would normally have reached . . . had it not been for the
tort". The measure is objective, based on the evidence.  This method
produces a result fair to both the claimant and the defendant.  The claimant
receives damages for future losses, as best they can be ascertained.  The
defendant is required to compensate for those losses.  To award less than what
may reasonably be expected to be required is to give the plaintiff too little
and unfairly advantage the defendant.  To award more is to give the plaintiff a
windfall and require the defendant to pay more than is fair.

[291]     The
plaintiff relies upon the report of Ms. Tracy Berry, an occupational
therapist, in support of her claim for costs of future care, in the amount of
$177,666.80.  Of that amount, various one-time costs, including an interdisciplinary
pain program ($13,600); a neuropsychological assessment ($4,500); occupational
therapy ($8,777); and vocational training ($30,000), total $63,490.

[292]     The
balance of the plaintiff’s claim under this head of damages is made up of
various ongoing costs.  Ms. Rajan claims homemaking assistance for 3.25
hours per week, or $3,900 per year to age 65.  Based on Mr. Benning’s
cumulative multiplier, the present day value of this item is $72,579.

[293]     Ms. Berry
has also recommended additional assistance for Ms. Rajan of 15 hours per
year for home renovations, at an annual cost of $750, which the plaintiff
claims to age 65.

[294]     The
plaintiff also claims for a gym membership to age 65 in the amount of $9,108.49
and $15,000 for supervision of her exercise program by a kinesiologist for an
unspecified number of years.

[295]     Ms. Berry
has also provided prices for various treatments recommended by either Drs. Hunt
or Brooks, including “ongoing” psychology, massage therapy, acupuncture and Pilates. 
The plaintiff claims a total of $30,000 for these ongoing care recommendations.

[296]     Ms. Berry’s
recommendations are based on the most pessimistic prognoses of Drs. Hunt and
Brooks.

[297]     Ms. Berry
appears to have largely ignored more positive evidence concerning the
plaintiff’s functioning or future prospects.  For example, in discussing Mr. Trainor’s
report, she made no reference to the potential for Ms. Rajan to work in
the less physically demanding positions of an insurance nurse, community health
nurse, nurse educator, or tele-nurse.

[298]     Ms. Berry
was not aware that Ms. Rajan works as both a scrub nurse and a circulating
nurse at Valley Surgical.  Although Ms. Berry admitted she knew that Ms. Rajan
was employed at Valley Surgical, she said little about that employment in her
report.  Because many of Ms. Berry’s recommendations are based on an unduly pessimistic
assessment of Ms. Rajan’s level of functioning and future prospects, I find
that her report provides only limited assistance in determining the plaintiff’s
reasonable and medically justified costs of future care.

Neuropsychological Assessment

[299]     The
plaintiff has not established that a neuropsychological assessment of the
plaintiff to identify cognitive difficulty is medically justified or
reasonable.  As Dr. Hunt acknowledged in cross-examination, if the
plaintiff suffered from cognitive difficulties, they would be readily apparent
to the surgeons and nurses with whom she works at Valley Surgical.  There is no
evidence showing that the plaintiff lacks the cognitive capacity to safely
perform her duties in the operating room.  Neither Ms. Vorley nor Ms. Wozney
expressed any concern about the plaintiff’s cognitive abilities or suggested
that she was at risk of harming herself or her patients.

Interdisciplinary Pain
Management Program

[300]     Drs. Hunt
and Brooks and Mr. Trainor have all opined that Ms. Rajan would benefit from a
comprehensive interdisciplinary chronic pain program.  Ms. Rajan continued to
experience significant chronic pain in her right shoulder and right hip at the
time of trial.  She has also developed an exaggerated perception of the extent
of her disability, and fears further injury from physical exertion.  An
interdisciplinary program combining pain medicine, psychology, physiotherapy
and occupational or vocational counselling would assist the plaintiff in
managing her pain and discomfort and improving her level of functioning.  In
Mr. Trainor’s experience, such programs are often a catalyst for successful rehabilitation. 
I find that a five to six-week interdisciplinary chronic pain program would
benefit Ms. Rajan and that she would participate in the program. I would allow
this item, in the amount estimated by Ms. Berry, of $13,600.

Gym Membership and Kinesiologist

[301]     All of the
medical experts agree that the plaintiff needs to exercise on a regular basis
and that in order to resume exercising she would benefit from a directed
exercise program. Ms. Craig recommended a supervised exercise program to
improve Ms. Rajan’s muscular strength, endurance, flexibility and aerobic
fitness.  I find that the plaintiff is entitled to membership in a community
recreation center gym for one year, together with weekly sessions with a kinesiologist
for one year, to assist her return to exercise.  Based on Ms. Berry’s cost
estimates, the costs are $571 for the gym membership and $2,880 for the kinesiologist,
at $60 per session for 48 sessions.

Physiotherapy

[302]     Ms. Berry
has provided costs for 36 sessions of physiotherapy at $55 per session, in the
amount of $1,980, based on Dr. Hunt’s recommendation.  Dr. Brooks
recommended 24 to 30 physiotherapy sessions to treat the defect he diagnosed in
the plaintiff’s posture, as well as her right hip and right shoulder complaints. 
As previously noted, the plaintiff has not established that she suffers from
any postural problem caused by the accidents.  Ms. Craig, a
physiotherapist, has recommended that the plaintiff have 6 to 16 sessions over a
period of 6 to 8 weeks for the treatment of her right hip.

[303]     The
plaintiff has already received over 100 physiotherapy treatments, principally
through CBI.  Ms. Rajan’s family physician, Dr. Jones made no specific
recommendation for physiotherapy, but did expect that Ms. Rajan would need
“ongoing therapy for some time”.  On October 24, 2012, she reported that the
plaintiff had discontinued physiotherapy in November 2011 “with no
deterioration in symptoms”.  However, Dr. Jones also noted that Ms. Rajan’s
symptoms, particularly in her right shoulder and right hip flared from time to
time.  In my view, some allowance for physiotherapy is reasonable and medically
justified for the treatment of the plaintiff’s right hip complaint and right
shoulder.  The plaintiff will probably require and benefit from physiotherapy
while she pursues her supervised exercise program.  Accordingly, I find that a
reasonable allowance for physiotherapy is 12 sessions at a total cost of $660.

Psychology

[304]     Dr. Hunt
recommended assessment and treatment of the plaintiff by a psychologist who
specializes in treating patients with chronic pain through the use of cognitive
behavioural therapy.  He also recommended that a psychologist provide Ms. Rajan
with marital counselling.  Dr. Brooks also thought the plaintiff would benefit
from psychological treatment for chronic pain.

[305]     The
plaintiff gave evidence that relations with her husband had been affected by
her chronic pain, but said that she wanted to get the pain under control before
she would consider marital counselling.  The plaintiff was prepared to
participate in psychological counselling for pain management.

[306]     Ms. Berry
advised that typically cognitive behavioural therapy is time-limited, to a
maximum of 12 sessions.

[307]      Ms. Rajan
will have the benefit of some psychological counselling as part of the
interdisciplinary pain management program.  In light of the persistence of the
plaintiff’s symptoms of chronic pain, and the difficulties she has encountered
in overcoming her fear of further injury, I find that some provision for
cognitive behavioural therapy to supplement and reinforce the psychological
counselling the plaintiff will receive for the interdisciplinary pain program
is justified.  Accordingly, using Ms. Berry’s costing of $175 per session, I
would allow for six sessions of cognitive behavioural therapy at a total cost
of $1,050.

Occupational Therapy

[308]     Dr. Hunt
was the only medical expert who recommended occupational therapy.  As part of
the interdisciplinary pain management program, the plaintiff will receive
occupational counselling that may assist her in pursuing a nursing career
outside the operating room.  I am not persuaded that further occupational
therapy is reasonable or medically justified.  At the time of trial, the
plaintiff was managing most homemaking chores and did not require the ongoing
services of an occupational therapist to suggest ergonomic modifications to her
daily living and homemaking activities.

Driver’s Rehabilitation

[309]     Ms. Berry
has allowed $399 for a driver’s rehabilitation course for the plaintiff.  I
find there is no medical justification for this recommendation.  None of the
medical experts recommended that the plaintiff take a driver’s rehabilitation
course.  Further, as Ms. Berry acknowledged in cross-examination, the
plaintiff currently drives to work, and with her family..  This recommendation
is unfounded.

Homemaking and Home Maintenance

[310]     I have found
that by the time of trial the plaintiff was capable of performing most homemaking
tasks, other than those involving heavy lifting or sustained pushing and pulling. 
Ms. Berry’s recommendation that the plaintiff will require homemaking
services indefinitely is based on an unrealistic assessment of the plaintiff’s
level of functioning.  I accept that the plaintiff may require limited
homemaking and home maintenance assistance with heavy tasks until she has
completed her directed exercise program.  Based on Ms. Berry’s costing of $24
per hour for homemaking services, and assuming 3.25 hours per week, the
plaintiff has estimated the annual cost of this service at $3900.  Recognizing
that Ms. Rajan’s need for homemaking assistance is likely to decline as her
strength and stamina improve, I would allow $ 2500 for homemaking assistance
for one year, and an additional $750 for assistance with home maintenance for
one year.

Vocational Re-training

[311]     If Ms. Rajan
is not able to work as an operating room nurse, she has some options available
to her in the field of nursing that will not require vocational re-training.   However,
as Mr. Trainor noted, another speciality diploma in nursing would expand Ms.
Rajan’s access to less demanding nursing work positions.  The plaintiff
testified that although her heart was in the operating room, if she had to, she
would pursue other nursing positions.  She identified pediatric nursing as one
field that would require further training.

[312]     Mr.
Trainor advised that training programs for speciality diplomas in nursing are
available through distance and classroom education offered by UBC, Douglas
College and BCIT.  He did not discuss the length of those diploma programs. 
There is evidence that the plaintiff obtained her speciality certification as
an operating room nurse in less than one year.  She began her training in
September 1996 and completed the program by April 1997.

[313]     In my
view, an allowance for re-training for up to one year in the amount of $6,000
is reasonable and justifiable on the basis that there is a real possibility
that the plaintiff may need to take advantage of that re-training in order to
maximize her opportunity for stable employment in the event she is unable to
work full-time in the operating room.

Massage Therapy, Aqua
Therapy, Acupuncture and Pilates

[314]     The
plaintiff claims $30,000 for costs of ongoing treatment by some or all of these
therapies.  Ms. Berry has made no specific recommendations for the duration of
any of these treatments.  Dr. Brooks recommended Pilates for the treatment of
postural problems which the plaintiff has not shown are related to any of the
accidents.  The remaining recommendations, like Ms. Berry’s recommendation for
ongoing psychological therapy to age 65, are based on an excessively
pessimistic assessment of the plaintiff’s functional limitations and treatment
needs.  I am not persuaded that any of these additional therapies are medically
justified.

 Summary: Costs
of Future Care

[315]     For those
items which I have found to be medically justified and reasonable, I assess the
plaintiff’s damages for costs of future care in the amount of $28,000.

[316]     Again, I
would allocate 50% of the plaintiff’s damages for costs of future care to her
divisible injuries for which the Hutchins defendants are solely liable and 50%
to her indivisible injuries.  As among the defendants, the apportionment of
fault for the indivisible injuries will be in the percentages I discuss below.

Special Damages

[317]     The
plaintiff is entitled to recover reasonable out-of-pocket expenses incurred as
a result of the accidents in order to restore her to the position she would
have been in had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281;
Milina v. Bartsch at para. 170.

[318]     Here, the
defendants accept that the plaintiff incurred special damages in the total
amount of $6,730.78.  Special damages are assessed in that amount.

[319]     The
defendant Hudon is liable for the special damages incurred by the plaintiff
following the first accident and prior to the second accident.  Those special
damages consist of 17 physiotherapy sessions at Sungod Physiotherapy at a total
cost of $510; 26 visits at CBI from May through October 2009 at a cost of $270;
and associated mileage of $272.85, for a total of $1,052.85.

[320]     Following
the second accident, Ms. Rajan received 15 physiotherapy treatments at CBI
between June 4, 2010 and July 30, 2010.  Exhibit 3, tab 30, the plaintiff’s
schedule of special damages and supporting receipts shows that Ms. Rajan
paid $835 for those treatments and incurred associated mileage costs of
$122.40, for a total of $957.40.  Those special damages were caused by the
negligence of the defendant Bains and are allocated to that defendant.

[321]     The
plaintiff incurred the remaining special damages between September 17, 2010 and
the date of trial.  I would allocate 50% of those special damages to the
plaintiff’s divisible injuries, for which the defendant Hutchins is solely
responsible.  The remaining 50% will be apportioned among the three defendants
in the same percentages as I discuss below for the apportionment of the plaintiff’s
indivisible injuries.

Mitigation

[322]     The
defendants submit that Ms. Rajan’s damages should be reduced for failure
to mitigate.  Specifically, the defendants contend that the plaintiff has
failed to mitigate by:

(a)      failing to maintain an exercise program following
her discharge from the CBI Physiotherapy and Rehabilitation Centre in April
2012; and

(b)      failing
to return to work at Burnaby General Hospital on a casual basis after she had
been cleared to return to work by both her physician and the occupational
therapist at CBI.

[323]     The
defendants say that Ms. Rajan’s failure to follow the exercise program
resulted in a deterioration of her physical condition and that had she
continued her exercise program, she would have been able to manage working at
Burnaby Hospital.

[324]     In Chiu
v. Chiu, 2002 BCCA 618 at para. 57, Low J.A. stated:

The onus is on the defendant to
prove that the plaintiff could have avoided all or a portion of his loss.  In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to him by doctors, the defendant must prove two things:
(1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably.  These principles are found in Janiak
v. Ippolito, [1985] 1 S.C.R. 146.

[325]     When the
plaintiff was discharged from the CBI Active Rehabilitation program on April 9,
2012, her treatment team recommended that she continue with her home exercise
program and that she participate in four exercise therapy sessions with a
kinesiologist to address her right hip pain.

[326]     Prior to
her discharge from CBI, the plaintiff, on the recommendations of her care
providers, had attended over 100 physiotherapy sessions as well as massage
therapy and chiropractic care.  Many of her active rehabilitation sessions at
CBI included painful intramuscular stimulation treatments.

[327]     As Dr.
Jones testified, Ms. Rajan was a compliant patient who followed her physician’s
recommendations.

[328]     Ms. Rajan
acted on the CBI recommendation for exercise therapy and attended four sessions
with a kinesiologist between April 30, 2012 and July 13, 2012.  However, aside
from doing some stretching exercises at home, the plaintiff has not engaged in
any active physical exercise program since her discharge from CBI.

[329]     Following
the death of her father in November 2011, and through 2012, the plaintiff was
obliged by Ismaili tradition to assist with the operation of her father’s
business.  The defendants’ argument that the plaintiff has failed to mitigate
by not maintaining an active exercise program ignores Dr. Jones’ evidence that
the death of the plaintiff’s father resulted in her taking on a much heavier
than ideal workload after November 2011.  Further, Ms. Rajan’s persistent right
shoulder and right hip pain have limited her ability to engage in active
exercise.

[330]     Additionally,
as a consequence of the injuries Ms. Rajan sustained in the three accidents
through the defendants’ negligence, she has developed a fear of re-injury which
inhibits her from participating in active exercise.

[331]     Fatigue,
fear of re-injury and recurrent bouts of right shoulder and hip pain have all
eroded the plaintiff’s tolerance for exercise.  A plaintiff will be excused
from properly mitigating where she fails to follow a recommendation for
treatment for reasons beyond her control: Cantin v. Petersen, 2012 BCSC
549 at para. 109.  The plaintiff’s fear of re-injury flowed from the
persistence of her chronic pain, and is a factor beyond her control. This is
not a case where the plaintiff has unreasonably chosen to disregard a
recommendation of her care givers.

[332]     I find
that the defendants have failed to establish that the plaintiff acted
unreasonably by failing to maintain an exercise program following her discharge
from CBI in April 2012.

[333]     I turn now
to the defendants’ submission that Ms. Rajan failed to mitigate by not booking
shifts at Burnaby General after she had been cleared for a GRTW in April 2012. 
The plaintiff’s symptoms had improved when Dr. Jones cleared the plaintiff for
a return to work at Burnaby General.  Dr. Jones thought she should let the
plaintiff attempt a return to work, although she did not believe that Ms. Rajan
was medically fit to return to full duties in the operating room.  In the
result, the plaintiff did not attempt to return to work at Burnaby General,
either in April 2012, or later.

[334]     Although
Ms. Rajan was optimistic at the time of her discovery that she would be able to
return to work at Burnaby General, her symptoms continued to fluctuate. On June
18, 2012, shortly after her discovery, she reported to Dr. Jones that she
experienced excruciating pain after working two shifts at Valley Surgery in one
week.

[335]     For the
remainder of 2012, one reason for her failure to return to Burnaby General was
her continuing commitment to the operation of her father’s business.  While she
worked five hours per day, three days a week at the copy centre and one day a
week at Valley Surgical, she had neither the time nor the energy to work shifts
at Burnaby General.  A second factor was Ms. Rajan’s fear of re-injuring
herself if she took on the full duties of an operating room nurse in a general
surgical facility, rather than the somewhat lighter duties she performed at Valley
Surgical.  At Burnaby General, unlike Valley Surgical, the plaintiff, on
completion of her GRTW, was expected to be able to perform all of the duties of
her position, without restrictions.

[336]     Since
April 2012, the plaintiff has coped, with some difficulty, in completing one
shift a week in the operating room at Valley Surgical. She is often fatigued,
and at times experiences significant pain after working a single shift. I am
not persuaded that in the spring of 2012 the plaintiff could have met all of the
requirements of her position at Burnaby General while also working one shift
per week at Valley Surgical.

[337]     The
defendants have not met the onus of establishing that Ms. Rajan acted
unreasonably in failing to return to work at Burnaby General in the spring of
2012.  Nor have they established that if she had done so her damages would have
reduced.  Accordingly, there will be no deduction from the damages awarded for
failure to mitigate.

APPORTIONMENT

[338]     I turn now
to the apportionment of fault for the plaintiff’s indivisible injuries.  I have
found that the plaintiff’s headaches, neck, upper back and right shoulder
injuries are indivisible, and that the first, second and third accidents
contributed to those indivisible injuries.  While the defendants are jointly
and severally liable to the plaintiff, they are entitled to an apportionment of
fault for the purpose of contribution and indemnity among themselves.

[339]     The third
accident was the most serious and is the major cause of the plaintiff’s
continuing pain and discomfort.  The first accident resulted in soft tissue
injuries to the plaintiff’s neck, upper back and right shoulder which Dr. Craig
described as “minor”, but which persisted for a significant period of time and
had not fully resolved before they were aggravated by the second and least
significant accident.  Considering all of these factors, I assess the
contribution of the first accident to the plaintiff’s indivisible injuries at
20%, the contribution of the second accident at 10%, and the contribution of
the third accident at 70%.

CONCLUSION

[340]     To
conclude, damages are awarded as follows:

(a)      Non-pecuniary
damages:                                         $90,000.00

(b)      Past loss
earning capacity:                                        79,000.00

(c)      Future loss of
earning capacity:                                225,000.00

(d)      Costs of
future care:                                                 28,000.00

(e)      Special
damages:                                                       6,730.78

TOTAL                                                                  $428,730.78

Deductions and Costs

[341]     If counsel
are unable to agree on any matters relating to deductions for advances or any
tax gross-up, they are at liberty to make written submissions, through the
Registry, to address those matters.

[342]    
Unless there are matters which counsel wish to bring to the Court’s
attention, the plaintiff is entitled to costs of the action at Scale B,
together with her reasonable disbursements.  If necessary, counsel are at
liberty to make written submissions in respect of costs.

“PEARLMAN J.”