IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141021

Docket: M123712

Registry:
Vancouver

Between:

Kayla Kaboly-Zadeh

Plaintiff

And

Warren K.
Murchison

Defendant

Before:
The Honourable Madam Justice Fleming

Reasons for Judgment

Introduction

[1]            
Kayla Kaboly-Zadeh claims damages for injuries she suffered in a car
accident that occurred on the Port Mann Bridge in Surrey, B.C. on November 16,
2011. The defendant admits liability for the accident.

[2]            
At the time of the accident Ms. Kaboly-Zadeh was 25 years old and
working on call as a licensed practical nurse at St. Paul’s Hospital in
Vancouver.

[3]            
Ms. Kaboly-Zadeh alleges the accident injured her neck, upper and mid
back, shoulders, trapezius area, and right arm, and also caused headaches. Ms. Kaboly-Zadeh
says that most of her symptoms resolved within six to nine months. The injury
to her mid back and trapezius area continues to be painful and partially
disabling, preventing her from participating in sports and activities she used
to enjoy and from working as a nurse in the hospital. Ms. Kaboly-Zadeh started
to return to work at St. Paul’s in late March 2012 and later obtained a second
on call nursing position with Lion’s Gate Hospital. She says she was unable to
work full time as a hospital nurse due to her injuries and the ongoing pain and
discomfort she experienced with the physical demands of the job. In November
2013 Ms. Kaboly-Zadeh began a full time “desk” job with a private company that
offers personal and nursing care to clients living at home or in care facilities.

[4]            
Ms. Kaboly-Zadeh seeks compensation for non-pecuniary damages, loss of
past wages and loss of past and future earning capacity, cost of future care,
special damages and costs.

[5]            
The defendant acknowledges that Ms. Kaboly-Zadeh suffered injuries as a
result of the accident. He also accepts that she has some ongoing symptoms in
her upper and, more significantly, her mid back but disputes they are to the
extent she claims. He argues that Ms. Kaboly-Zadeh has failed to mitigate by
not engaging in regular strengthening and conditioning of her neck and back as
recommended, she is not entitled to compensation for past loss of earning
capacity and she should receive only a minor award for future loss of earning
capacity and the cost of future care. There is no dispute about her claim for
special damages.

Issues

[6]            
The issues to be determined are:

1.     What is
the extent and duration of the injuries Ms. Kaboly-Zadeh suffered from the
accident?

2.     Has Ms. Kaboly-Zadeh
failed to mitigate?

3.     What is
the appropriate award of general damages for her pain and suffering?

4.     What
amount, if any should be awarded for the past and future loss of income earning
capacity?

5.     What
amount, if any, should be awarded for the future cost of care?

Background

[7]            
Ms. Kaboly-Zadeh was born in Vancouver and raised on the North Shore
along with her brother and sister. She graduated from high school in 2003.
Throughout her life she was very active in sports. During middle school Ms. Kaboly-Zadeh
won a bronze medal for athletic achievement. She excelled at wrestling. Her
favourite sport, however, was soccer, which she started playing when she was
five and continued to play as an adult. At the time of the accident, Ms.
Kaboly-Zadeh and her sister were playing for a team in Burnaby. Her sister and her
fiancé described her as an excellent player and highly competitive. Up to the
time of the accident, Ms. Kaboly-Zadeh was also involved in other sports, such
as softball and beach volleyball, and she enjoyed hiking.

[8]            
Ms. Kaboly-Zadeh decided she wanted to become a nurse when she was 12.
She described nursing as her lifelong dream. Both her aunt and grandmother were
registered nurses. When she was a young girl, Ms. Kaboly-Zadeh tended to injured
animals and bugs. She would patch up her sisters’ scraps. She very much enjoyed
caretaking and nurturing.

[9]            
After graduating from highschool, Ms. Kaboly-Zadeh had to upgrade her
marks to qualify for the registered nursing program. She did this for about a
year and then began the registered nursing program at Langara in 2007. She had
a difficult time. Finding the program intense and struggling with some personal
issues, she withdrew. Ms. Kaboly-Zadeh then decided to volunteer at a
children’s hospital in Costa Rica. She found the experience life changing. It reaffirmed
her passion for nursing. When she returned to Vancouver she learned that she
would have to complete a refresher course and wait for a period of time to be eligible
for readmission to the registered nursing program. Instead she applied and was accepted
to the practical nursing program. During the program she completed a number of
practicums in various medical settings, including an extended care facility, Vancouver
General Hospital, and lastly the palliative care unit at St. Paul’s Hospital.

[10]        
After she completed the practical nursing program Ms. Kaboly-Zadeh was
offered an on call position at St. Paul’s Hospital in June 2010. Ms. Kaboly-Zadeh
was living with a boyfriend in North Vancouver when she started her position.
They became engaged and bought a house in Surrey, where she was living at the
time of the accident.

[11]        
Several years earlier in 2006 Ms. Kaboly-Zadeh was involved in another
accident as a pedestrian. She was struck in a crosswalk and suffered a
concussion, a sprain to her left wrist, some cuts and tears and soft tissue
injuries to her low back. Before the accident in 2011, Ms. Kaboly-Zadeh
occasionally experienced flare ups in lower back pain that included sciatica
pain down one leg. She says that those flare ups never caused her to miss work
or interfered with her participation in sports and other activities. The
defendant does not suggest the injuries Ms. Kaboly-Zadeh suffered in the 2011
accident aggravated a pre-existing condition.

The Accident

[12]        
There is no dispute between the parties about how the accident occurred
or its severity. On November 16, 2011 Ms. Kaboly-Zadeh was driving westbound on
the Port Mann Bridge in the early morning. She was on her way to work. Traffic
was heavy. As she was slowing to a stop, her car was struck from behind by the
defendant’s truck. The force of the collision pushed her car into a truck
stopped ahead of her. During the accident Ms. Kaboly-Zadeh, who is tall at 5
feet 11 inches, felt the base of her skull hit the top of the head rest and her
head folded back over the top of the car seat. Her car was damaged at the back
and front but she was able to drive it away from the collision. Valued at
$4398.24, the car was subsequently rendered a total loss. The truck struck by
Ms. Kaboly-Zadeh’s car sustained damage that cost $1,187.55. There is no
evidence regarding the cost of damage to the defendant’s truck.

Summary of the Evidence

[13]        
Ms. Kaboly-Zadeh testified and led evidence from her sister, her fiancé,
and her current employer. She also relied upon expert opinion evidence from her
family physician Dr. Francis Bugeya, Dr. Russell O’Connor a specialist in
physical medicine and rehabilitation and Ms. Louise Craig, a physiotherapist
who completed a functional capacity evaluation of Ms. Kaboly-Zadeh.

[14]        
The defendants relied on the expert evidence of Dr. Thomas Gredianus, an
orthopedic surgeon, and Mr. Ralph Cheesman, a physiotherapist who provided a
review of Ms. Craig’s functional capacity evaluation.

[15]        
Right after the accident, Ms. Kaboly-Zadeh noticed a lump forming at the
base of her skull. She felt some neck pain and a headache and so abandoned her
plan to carry on to work. Instead she drove to a walk in clinic close her home.
She was prescribed a pain killer and an anti-inflammatory. She went home to rest,
developed a massive head ache, and was nauseous. That evening Ms. Kaboly-Zadeh
visited the hospital for a more thorough examination, but left before being
examined after waiting for several hours. Over the next couple of days she was
most bothered by a pain at the base of her neck and a headache. She also
experienced a tightening in the trapezius area and a general dull achiness. She
noticed numbness and/or weakness in her right arm that extended down into her
fingers. She had some discomfort in her upper and mid back. She stayed home,
slept a lot and rested on the couch.

[16]        
Ms. Kaboly-Zadeh started physiotherapy on December 1, 2011 and continued
until February 2012.

[17]        
In January 2012 Ms. Kaboly-Zadeh returned to her former family physician
Dr. Francis Bugeya in North Vancouver. At that time she was experiencing neck
pain, tightness and stiffness in the trapezius area, pain in the mid back
particularly between the shoulder blades and some weakness in her right arm.
Dr. Bugeya referred Ms. Kaboly-Zadeh to Dr. Quirke, a general practitioner with
an expertise in non-surgical orthopedics, who manipulated her neck and back.
She found his treatments provided some relief.

[18]        
In February 2012 Ms. Kaboly-Zadeh was referred to a work hardening
program called Karp Rehabilitation that involved multiple sessions in a gym
with a kinesiologist. She completed the program in June 2012.

[19]        
Ms. Kaboly-Zadeh did not return to work until the end of March 2012.
After a while, she averaged about two shifts per week. Her injuries had not yet
resolved. She said she typically gave herself time in between shifts in order
to minimize the discomfort she experienced. In the summer of 2012 she tried
working full time briefly. Between July 20 and August 2, 2012 Ms. Kaboly-Zadeh
worked 55 hours. She said that she had to see if she could do it, although she
did not think she should be working that much given her injuries. She found it
incredibly difficult, experiencing pain and spasms in her mid-back and
trapezius area while at work, often coming home in tears. Ms. Kaboly-Zadeh
found the spasms could be triggering by something as minor as reaching across a
patient’s bed. When they happened, she needed to sit down for an hour to let
them subside. She was in a lot of pain both during and after her shifts. She
said she worked as much as she did at that point because she needed the money.
By then, she was living on her own in North Vancouver, the relationship with
her fiancé having ended.

[20]        
Ms. Kaboly-Zadeh said she received many offers of shifts. She turned
down shifts due to her injuries.

[21]        
She testified that pain in her trapezius area and mid back between and
around her shoulder blades was an ongoing problem, although her other injuries
subsided for the most part, including the numbness and tingling in her right
arm. Her neck pain was greatly reduced and the range of motion in her neck had
greatly improved.

[22]        
In November 2012, Ms. Kaboly-Zadeh obtained a second on call position at
Lion’s Gate Hospital. She continued to take shifts at St. Paul’s as well. She said
she could not physically handle working all of the shifts that were offered to
her, but continued to juggle the two positions until October 2013. Ms. Kaboly-Zadeh
was not able to specify how many shifts she turned down but estimated receiving
a call per day. She continued to work part time. When she did back to back
shifts, her recovery time was four or five days. Even with help from other
nurses she found it difficult to lift.

[23]        
Ultimately Ms. Kaboly-Zadeh started to look for alternative employment
that was less physically demanding. She was hired by a private agency called
Proof of Care in November 2013. The business provides care to seniors, ranging
from companion care to complex nursing care, in their own homes and in
community living facilities.

[24]        
Ms. Kaboly-Zadeh’s position is administrative. She is a “pod care
manager” which involves scheduling, assessing, meeting with and managing
clients, caregivers and practical nurses. She develops care plans for clients
and hires, schedules and monitors the staff she manages. She also does some
marketing of the business. Ms. Kaboly-Zadeh spends most of her time at a desk
or driving to clients’ homes to assess their needs and monitor their care. Her
hours of work are full time; Monday to Friday, from 9:00 a.m. to 5:00 p.m. She
also works on call on some weekends and fills in for late or sick caregivers
and practical nurses. When she does so she assists patients with their care,
including bathing and transferring them from a bed to a wheelchair. She finds
transferring patients causes pain in her mid-back. In general, Ms. Kaboly-Zadeh
finds the lighter duties of her job with Proof of Care much easier on her back
although sitting at her desk for extended periods causes discomfort to her mid-back
and neck.

Rehabilitation and Attempts to Return to Previous Activities

[25]        
After completing the Karp Rehabilitation Program in June 2012, Ms. Kaboly-Zadeh
obtained a three month gym pass. She only used it three or four times but
testified that she continued to do stretching and some of the other exercises
she learned at the program at home. After she saw Dr. O’Connor in December 2012
she continued to do the Karp exercises and stretches regularly as well as
exercises he specifically recommended to her, such as the plank and ball exercises.

[26]        
In the summer of 2013 she joined a casual soccer league. She attended
one practice and took it easy. She then participated in a game. She didn’t play
well, found it really difficult to get through and was very sore for a couple
of days. She also tried summer softball. She played one game and said there was
no way she could play another. Throwing and catching the ball and running were very
hard on her mid-back and trapezius area.

[27]        
Ms. Kaboly-Zadeh said she simply could not afford to take the risk of
being too sore to work.

[28]        
She has been walking and has returned to light hiking, but not to all-day
hiking, and she usually doesn’t carry a back pack. The hikes she does now are
more “tame” than those she did before the accident.

[29]        
In 2014 Ms. Kaboly-Zadeh attempted some more intensive exercise at the
gym by hiring a trainer. She expressed fear of hurting herself without someone
to instruct her. Before she met with the trainer she did some light training on
her own, including some cardiovascular exercise and ball exercises but no
weights. She did this two or three times per week for a couple of weeks. The
initial session with the trainer involved an assessment. She found the first
actual training session incredibly difficult and was in tears half way through.
She said she was unable to return to the gym for three weeks because she was so
sore.

[30]        
She has not used the gym since February 2014. Ms. Kaboly-Zadeh’s current
regime involves exercises and stretches she does at home every day, walking for
about 45 minutes twice a week and occasional light hiking.

[31]        
Ms. Kaboly-Zadeh continues to take some medication to manage her
symptoms. They include an anti-inflammatory she takes three to four times per
week and a muscle relaxant that she takes one or two times per week. She also
takes Tylenol and Advil from time to time and applies heat to deal with the
pain.

[32]        
At the time of the trial Ms. Kaboly-Zadeh was attending physiotherapy
again with a focus on her neck, trapezius and first and second rib areas. She
was undergoing a new therapy that involves the use of needles similar to Intra-Muscular
Stimulation (IMS).

Medical Evidence

[33]        
Dr. O’Connor is a specialist in physical medicine and rehabilitation. He
examined Ms. Kaboly-Zadeh and prepared a report dated December 18, 2012 at the
request of her counsel.

[34]        
His report provides that Ms. Kaboly-Zadeh’s symptoms at that time included
mild to medium mid-back pain between and just below the shoulder blades which
occurred daily, especially at the end of a shift. She also had pain and
tightness or stiffness over the right trapezius two to three times per week, when
she did a lot of work or increased her physical activity. Initial weakness in
her shoulder had settled. Some tingling into her right shoulder and down into her
arm had also settled.

[35]        
Dr. O’Connor found that Ms. Kaboly-Zadeh had suffered soft tissue
injuries to the neck, mid-back and headaches from the accident that made it
more difficult for her to return to work. He also found her injuries reduced
her capacity for work for a period of approximately six months and resulted in
a partial disability where she was unable to perform her full duties and was
only working part time until the summer of 2012.

[36]        
In his report he predicted that with the passage of time, Ms. Kaboly-Zadeh’s
symptoms would improve to the point where her mid back would only mildly bother
her. Her neck pain and headaches were approaching the point where they were
resolving or nearly completely resolved. He considered Ms. Kaboly-Zadeh to be at
increased risk of re-injury to her neck, shoulder girdle and mid-back given the
physical nature of her work. In his opinion, the accident had also increased
this risk and she needed to work on a more regular and consistent strength and
conditioning program of her neck, mid-back and lower back to minimize the risk
of re-injury.

[37]        
Dr. O’Connor’s report incorrectly sets out that Ms. Kaboly-Zadeh was
working three or four shifts a week by August 2012. It also states that Ms. Kaboly-Zadeh
was working three or four shifts a week at the time of the accident. In fact,
Ms. Kaboly-Zadeh was working approximately two shifts a week before the
accident and at the time that she was examined by Dr. O’Connor.

[38]        
In cross-examination Dr. O’Connor was asked to clarify what he meant when
he recommended that Ms. Kaboly-Zadeh engage in a regular and consistent
strength and conditioning program. He responded that it would be ideal for her
to exercise for 30 minutes to one hour five days a week. He also testified that
medical literature does not support the conclusion that this level of exercise
assists with recovery from chronic neck and low back pain. His clinical
experience has been, however, that the stronger a patient is, the more he or
she can do. He was not prepared to agree that Ms. Kaboly-Zadeh had compromised
her recovery by delaying involvement in regular and consistent strength and
conditioning program, given her level of conditioning when he examined her and
the fact that she had returned to work but not to her regular activities. In
cross examination, he expressed the view that the longer symptoms go on, the
more entrenched they become. When asked about Ms. Kaboly-Zadeh’s current
exercise regime, he described it as a good start, or 30 to 40 % of the way
there.

[39]        
Dr. Bugeya is a family physician. He first treated Ms. Kaboly-Zadeh in
2006 after the previous accident. Following the November 2011 accident, he saw
her again in January 2012. His medical legal report is dated February 27, 2014.
In that report he sets out his initial diagnosis as follows:

(1)  Whiplash mechanism injury to
the cervical spine with resultant neck and shoulder dysfuntion with reduced
range of motion;

(2)  Gradual right arm weakness
with neuropathy;

(3)  Muscle tension induced
headaches of two or three day duration;

(4)  Rhomboid and supraspinatus
spasm and pain.

[40]        
In his report, Dr. Bugeya described Ms. Kaboly-Zadeh’s present
conditions as follows:

She is still disabled from doing
her sports and previous activities. Her work has improved with a change to desk
work but other discomforts of prolonged sitting with ergonomic assessment advised.
She soldiers on with work and her personal life improved but not completely.

[41]        
Dr. Bugeya’s opinion is that Ms. Kaboly-Zadeh suffered total disability
from the date of the accident until she started one to two shifts a week in
late March 2012. In his view, a partial disability persists until today. He
states that the physical demands of bedside nursing have been and probably will
remain a challenge for her. He writes that given that over two years have
passed and symptoms remain, Ms. Kaboly-Zadeh “will continue to experience
intermittent discomfort with prolonged exertion”. His report provides her
prognosis is “not a complete resolution but more of symptom reduction with
intermittent flares”.

[42]        
Dr. Bugeya testified that his practice includes a component of
occupational medicine. He also deals every day with 1-2 patients suffering from
traumatic injuries. In cross examination Dr. Bugeya disagreed with Dr.
O’Connor’s prognosis that Ms. Kaboly-Zadeh’s mid back will improve to the point
that it only mildly bothers her. Of course Dr. Bugeya’s report was written much
later and reflects his awareness of her reports of ongoing pain in her
mid-back. While he agreed in cross examination that exercise and activity can
be a benefit, and there is a need to work through some resulting pain and
discomfort, he also described Ms. Kaboly-Zadeh’s work as a practical nurse as a
work hardening program in itself. He did agree that Ms. Kaboly-Zadeh’s current
exercise regime was helpful to her overall fitness but not sufficient. He
maintained his opinion that given that it is now more than two years after the
accident, Ms. Kaboly-Zadeh will have chronic intermittent pain and improving
her strength and condition will not change that. The best she can hope for, if
she undergoes all appropriate treatment, is less intense and less frequent
symptoms.

[43]        
Ms. Louise Craig is a physiotherapist who has conducted over 1,500
functional capacity evaluations as part of her practice. Her report dated
December 9, 2013 followed her assessment of Ms. Kaboly-Zadeh which took place
over several hours three days prior. At that time Ms. Kaboly-Zadeh reported
pain and stiffness in her neck, but it was not as problematic as her mid back
and trapezius area on both sides. Based on her evaluation, Ms. Craig concluded
Ms. Kaboly-Zadeh did not meet the full physical demands of the job of a
licensed practical nurse. She demonstrated limitations to her neck, upper back,
shoulder and trapezius areas that reduced her ability to work at physically
demanding jobs or jobs with demands for sustained stooped posture or reaching
forward or for unsupported reaching in low level work postures. Consequently,
Ms. Craig found that the scope of occupations available to Ms. Kaboly-Zadeh had
been reduced leaving her with less competitive employability within the nursing
field and beyond. Ms. Craig also concluded that Ms. Kaboly-Zadeh seemed to have
reached a plateau in her physical rehabilitation. She recommended further
independent exercise that should include regular participation in a
strengthening program such as Pilates approximately twice per week. She also
offered the view that further medical treatment may be warranted to address Ms.
Kaboly-Zadeh’s pain. She found Ms. Kaboly-Zadeh to be quite stoic and tending
to minimize her symptoms, although the pain she did report was affecting many
aspects of her life. Specifically Ms. Craig recommended physiotherapy and or
massage therapy for flare ups and to cope with pain aggravation on a monthly
basis for as long as Ms. Kaboly-Zadeh’s symptoms persist.

[44]        
Ms. Craig’s opinion did not change during cross examination. The
defendant challenged Ms. Craig on the significance of her factual assumptions
about how much Ms. Kaboly-Zadeh was working before and after the accident. Her
report sets out that Ms. Kaboly-Zadeh was working three or four shifts a week
before the accident and had returned to working about two shifts per week. Ms.
Craig testified the significant issue is how Ms. Kaboly-Zadeh was performing
during those shifts not how many she was doing. Increased pain and the need for
help and accommodation would indicate reduced tolerance for the demands of the
work. The defendant suggested to Ms. Craig she ought to defer to Dr. O’Connor’s
prognosis that Ms. Kaboly-Zadeh’s mid back pain would resolve over time. Ms.
Craig made the point that Dr. O’Connor prognosis was a prediction or an
estimate of what was likely to happen with her mid back symptoms. Her ongoing
mid back pain one year later simply showed the outcome was not as favourable as
he had predicted. Ms. Craig testified that given the amount of time that has passed
since the accident, it was not likely Ms. Kaboly-Zadeh’s functional capacity
would improve over time.

[45]        
Ms. Craig’s report was reviewed by Mr. Ralph Cheesman at the request of
the defendant’s counsel. He is also a physiotherapist and a functional capacity
evaluator. His report is dated April 3, 2014. He did not examine Ms. Kaboly-Zadeh
but instead offered some criticisms of the methods used by Ms. Craig in
evaluating Ms. Kaboly-Zadeh’s functional capacity. He was of the view the
assessment was too short and more repeat testing ought to have been done. He
opined that, based on Ms. Craig’s findings, Ms. Kaboly-Zadeh was capable of
performing “intended” functions, with the need to adapt her performance at
times or manage her pain while performing them by changing her position, for
example. He found it likely she was performing nursing duties with some degree
of episodic discomfort but testified there is a difference between pain and a
functional limitation. Where a person persists in completing a task despite experiencing
pain, that person is functionally capable of doing that task. Its only if they
stop the task altogether that a functional limitation may be found.

[46]        
 Ms. Kaboly-Zadeh’s counsel objected to aspects of Mr. Cheesman’s report
and evidence on the basis of the rule in Browne v. Dunn. He complained
that Mr. Cheesman’s specific criticisms were not put to Ms. Craig in cross
examination and thus she was denied an opportunity to respond. I agree that Ms.
Craig was not asked about number of points Mr. Cheesman made about her report.
Ms. Craig was questioned, however, about when an evaluator ought to conclude a
person has a functional limitation. Her view was quite different from Mr.
Cheesman’s. Ms. Craig testified that just because a person completes a task
does not mean they can do it day in and day out; a person may be motivated to
complete a task and do so but suffer increased pain or reduced productivity as
a result. Changes in posture or position and increased pain are indications of
bio-mechanical breakdown or a reduced or reducing capacity to perform a task. In
her opinion, requiring people to go until failure put them at risk of
re-injury. I prefer her evidence on this point to Mr. Cheesman’s.

[47]        
Mr. Cheesman agreed with Ms. Craig’s conclusion that Ms. Kaboly-Zadeh
was very accurate in her reports of pain and that she made a full and
consistent effort during the assessment. More importantly, he also agreed with
Ms. Craig’s overall conclusion that the functional testing indicates there is
not a full functional match with the general or specific “descriptors of
physical activity factors involved when performing practical nursing duties”.
In his view, if mechanical lift devices, bed raising and lowering and “sound
ergonomic patient handling skills” were implemented where appropriate, Ms. Kaboly-Zadeh
could likely continue to manage practical nursing duties. He clarified Ms. Kaboly-Zadeh
would still experience some “symptom reactivity” when working. Mr. Cheesman’s
evidence about how Ms. Kaboly-Zadeh could continue to work as a nurse despite
her functional limitations through accommodations was significantly undermined
by the testimony of Ms. Tracy Sacre. Ms. Sacre is Ms. Kaboly-Zadeh’s employer
and a registered nurse who worked in hospital for many years and teaches
nursing at Vancouver Community College. She described the strenuous, heavy work
performed by hospital nurses; the most physically challenging tasks being
transferring patients, toileting them, feeding them in uncomfortable and
awkward positions, caring for wounds (some of which are not easy to access) and
holding heavy or very heavy limbs or a head during a medical procedure. She
testified that other nurses can provide some assistance when they are available
but that is not always the case. Similarly, mechanical aids can be used but are
also not always available. Accordingly, I conclude Mr. Cheesman’s opinion that
Ms. Kaboly-Zadeh’s functional limitations could be accommodated by other nurses
and mechanical aids to be impractical and unrealistic.

[48]        
Dr. Thomas Gredianus is an orthopaedic surgeon who examined Ms. Kaboly-Zadeh
and prepared a report at the request of the defendant dated January 13, 2014.
He described Ms. Kaboly-Zadeh’s chief complaints as follows:

1.     Mid back
pain aggravated by lifting objects, transferring patients, bending, and sitting
at a desk for a time.

2.     Trapezius
muscle pain also aggravated by lifting and transferring patients, bending and
sitting at her desk.

3.     Neck pain
has mostly subsided. She notices the neck pain somewhat more with her new job
for the past two and a half months.

4.     Headaches
are gone except “after a brutal 12-hour day of work” when she will notice pain in
the back of her head.

[49]        
During his physical examination of Ms. Kaboly-Zadeh she reported mild
tenderness of the left cervical paraspinal muscles at the C5 level and the left
of T6. Her lateral flexion to the left was 60 degrees and to the right 45
degrees.

[50]        
Dr. Gredianus’ report sets out the diagnosis of neck sprain (resolved)
and trapezius muscle region sprain. His impressions read as follows:

In summary this lady is doing quite well at the present time.
She likes to be active in activities but she states she is limited by pain in
the trapezius muscle region and mid back on doing more strenuous activities….There
are no objective signs of an abnormality.

This client’s symptoms have subsided so that at present there
is no significant disability. No residual disability is anticipated. Her
prognosis is very good.

In my opinion no further
treatment is required. Her present and future ability to work is excellent. A
regular exercise program will help her endurance and her enjoyment of her work
and leisure activities.

[51]        
Dr. Gredianus expressed the opinion that the cause of Ms. Kaboly-Zadeh’s
symptoms, including her more recent neck pain, was the accident. Dr. Gredianus testified
by video deposition. In cross examination he was asked about the significance
of some of his physical findings. He explained that normal lateral flexion is
45 degrees. Ms. Kaboly-Zadeh’s 60 degree flexion on the left could be explained
by insufficient effort or facet joint pain. However, he described Ms. Kaboly-Zadeh
as making a good effort. When questioned about his opinion, he acknowledged her
ability to function as a licensed practical nurse in a hospital setting was
limited but continued to express the review that she would be able to return to
all activities including practical nursing in hospital. He did not provide a
specific time frame. Neither his report nor his testimony provided an
explanation for his opinion about her current functioning and his prognosis.

Credibility and Reliability

[52]        
Ms. Kaboly-Zadeh has suffered soft tissue injuries. Determining the
extent of those injuries depends largely upon assessing her subjective
complaints of pain and discomfort. As in most cases where there are few or no
objective findings of continuing injury, much turns on the credibility and
reliability of Ms. Kaboly-Zadeh. In these circumstances the court must exercise
great caution in examining the evidence and assessing credibility: Price v.
Kostryba (1982), 70 B.C.L.R. 397 (SC) (quoted with approval in Edmondson
v. Payer, 2012 BCCA 114 at para. 2). This is because the complaints of pain
cannot easily be disproved. Ms. Kaboly-Zadeh’s evidence must be convincing; it
may however consist of her evidence alone, if consistent with the surrounding
circumstances.

[53]        
The defendant was not critical of Ms. Kaboly-Zadeh’s credibility in
general. On specific points the defendant urged the court not to accept her
testimony because it was inconsistent with other evidence. I will address those
points as they arise during the analysis of the issues that follows.

[54]        
I note at this stage, some of the principles that govern the court’s
approach to credibility and reliability. The typical starting point in a
credibility assessment is to presume truthfulness: Halteren v.
Wilhelm, [1997] BCJ No. 1959, affirmed in 2000 BCCA 2.

[55]        
In Bradshaw v. Stenner, 2010 BCSC 1398, Dillon J. summarized the
factors to be considered when assessing credibility at para. 186:

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

[56]        
On the whole, I found Ms. Kaboly-Zadeh to be a very credible witness.
She provided straightforward, reasonable answers to the questions she was asked.
She readily acknowledged minor mistakes or inconsistencies in her evidence that
were put to her. Her evidence was convincing and consistent with the
surrounding circumstances which include her obvious love of nursing and sports.
There was little change in her testimony between direct and cross examination.
Her testimony about her injuries and the pain she has experienced was almost
circumscribed. It is clear from the evidence of others that she is not one to
complain. Her stoicism was apparent from her own evidence. Under cross-examination
she remained polite, respectful and responsive.

Causation

[57]        
The plaintiff must establish on a balance of probabilities that the
defendant’s negligence caused or materially contributed to an injury. The
defendant’s negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the range of de minimus. Causation need not
be determined by scientific precision:  Athey v. Leonati, [1996] 3
S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at
para. 9.

[58]        
The primary test for causation asks: but-for the defendant’s negligence,
would the plaintiff have suffered the injury?

[59]        
Causation must be established on a balance of probabilities before
damages are assessed. As McLachlin, C.J.C. stated in Blackwater v. Plint,
2005 SCC 58 at para. 78:

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
v. Leonati].

Finding of Facts

[60]        
Here the defendant does not dispute that the accident caused Ms. Kaboly-Zadeh’s
injuries, excepting perhaps the neck pain she has experienced since starting
her job with Proof of Care. The focus of the dispute is on the extent of Ms. Kaboly-Zadeh’s
injuries, her prognosis for further recovery and on whether she has failed to
mitigate.

[61]        
There is no real conflict in the medical evidence regarding the injuries
caused by the accident. Given that medical evidence, my general findings with
respect to the credibility of Ms. Kaboly-Zadeh and her own evidence, I find
that the accident caused soft tissue injuries to her neck, upper and mid-back,
and shoulder area as well as numbness to her right arm extending initially to
her fingers and headaches. Most of Ms. Kaboly-Zadeh’s symptoms resolved within
six to nine months of the accident but she continues to experience pain and
tightness in her mid-back and trapezius area and when she has a long difficult
day, some headaches. Based on the opinion of Dr. Gredianus regarding causation
and Ms. Kaboly-Zadeh’s evidence, I also find the accident significantly
contributed to the neck pain she began to experience after starting her current
job.

[62]        
With respect to the question of Ms. Kaboly-Zadeh’s prognosis, I find
based on the evidence that she is unlikely to experience further significant
improvement. While Dr. O’Connor offered the opinion in December 2012 that her
ongoing symptoms would improve to the point where her mid back would only
mildly bother her, it is clear from Ms. Kaboly-Zadeh’s evidence and other medical
evidence that this has not occurred.

[63]        
I find that Dr. O’Connor in effect resiled from his prognosis while
giving evidence. During cross examination, Dr. O’Connor expressed reservations about
the benefits to Ms. Kaboly-Zadeh of starting a regime of regular exercise at
this stage. He testified that the longer symptoms go on, the more entrenched
they become. He also opined that with chronic symptoms the odds of recovery are
less and less. Dr. Bugeya offered very similar opinion evidence: now that it is
over two years post-accident, his prognosis is Ms. Kaboly-Zadeh will have
chronic intermittent pain and there is no chance of a complete recovery.

[64]        
Dr. Gredianus’ prognosis was much more positive, but I do not find this
aspect of his opinion helpful or persuasive. He described Ms. Kaboly-Zadeh’s
prognosis as good. He also described her symptoms as having subsided such that
she was not experiencing significant disability and no residual disability was
anticipated. As noted above, neither his report nor his testimony provided any
explanation for his prognosis. Further, his prognosis is difficult to reconcile
with the evidence of Dr. O’Connor and Dr. Bugeya and Dr. Gredianus’ own
acknowledgment that Ms. Kaboly-Zadeh’s  ability to function as an licensed
practical nurse in a hospital setting was still limited at the time he saw her.

[65]        
I also find based on the evidence that Ms. Kaboly-Zadeh has suffered a
loss of functional capacity that prevents her from working as a hospital nurse
and in other jobs with similar physical demands. Where the opinions of Ms.
Craig and Mr. Cheesman differ, I prefer the evidence of Ms. Craig. In addition
to the reasons I have set out above, Ms. Craig had the benefit of assessing Ms.
Kaboly-Zadeh over several hours and prepared an extremely thorough report that provides
opinions that accord with the evidence as a whole, including Ms. Kaboly-Zadeh’s
own credible testimony about the impact of the demands of hospital nursing on
her level of pain and discomfort, and the difficulties she continues to
experience in her new position. Many of Mr. Cheesman’s criticisms of Ms.
Craig’s report were so narrow in the scheme of Ms. Craig’s analysis as to be
essentially meaningless. In addition, Ms. Craig was a compelling witness who
provided thoughtful, cogent answers to difficult questions in cross-examination.

Damages

[66]        
The fundamental principle in assessing damages is that the plaintiff
must be placed in the position he or she would have been if not for the
defendant’s negligence, no better or worse: Athey v. Leonati, supra, at
para. 32.

Duty to Mitigate

[67]        
The defendant argues Ms. Kaboly-Zadeh failed to mitigate by not
complying with Dr. O’Connor’s recommendation that she engage in a regular and
consistent strength and conditioning program and her non pecuniary damages
should be reduced to reflect this failure.

[68]        
A plaintiff has an obligation to take all reasonable measures to reduce
his or her damages, including undergoing treatment to alleviate or cure
injuries: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC
1111 at para. 234.

[69]        
However, once the plaintiff has proved the defendant’s liability for his
or her injuries, in order to succeed in a mitigation defence the defendant is
required to prove that the plaintiff acted unreasonably and that reasonable
conduct would have reduced or eliminated the loss. Whether the plaintiff acted
reasonably is a factual question and it involves a consideration of all of the
circumstances: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202.

[70]        
Chiu v. Chiu, 2002 BCCA 618 at para. 57 sets out the test
for failure to mitigate by not pursuing recommended treatment:

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.

[Emphasis added.]

(Also see Wahl v. Sidhu, 2012 BCCA 111 at para.
32; and Morgan v. Galbraith, 2013 BCCA 305 at para. 78.)

[71]        
More recently in Gregory v. Insurance Corporation of British Columbia,
2011 BCCA 144, the Court of Appeal described an subjective/objective test as
follows:

…whether the reasonable patient, having all the information
at hand that the plaintiff possessed, ought reasonably to have undergone the
recommended treatment. The second aspect of the test is: the extent, if any to
which the plaintiff’s damages would have been reduced by that treatment.

[Emphasis in the original at para.
56.]

[72]        
Here, the defendant concedes that up to the time of her visit with Dr.
O’Connor, Ms. Kaboly-Zadeh made reasonable efforts to mitigate and she was not
clearly advised by Dr. Bugeya to do more than she was doing. The defendant
argues that since she received Dr. O’Connor’s recommendation, however, she has
not complied and had she done so, her injuries would have resolved or her
ongoing symptoms would have been much reduced.

[73]        
I note firstly that Dr. O’Connor’s recommendation repeats opinions
expressed in his report while discussing the risk of re-injury, given the
physical nature of Ms. Kaboly-Zadeh’s work as a licensed practical nurse, and was
not made in relation to what steps she should take to aid in the rehabilitation
of her existing injuries. His report reads in part as follows:

However her work is quite physical and she is at increased
risk of reinjury with regards to her neck, shoulder girdle and midback, and the
motor vehicle accident in November of 2011 increased the risk of this. To
minimize this risk, she is going to need to work on a more regular strength and
conditioning of the neck, midback, and low back on a consistent and regular
basis.

[Emphasis added.]

[74]        
Nowhere in his report does Dr. O’Connor state what he means by a more
regular and consistent strength and conditioning program, other than to say that
the plaintiff should work on building up the muscles that stabilize and move
her back, neck and hip girdle. Nor does he state that such a program will
alleviate or resolve the plaintiff’s ongoing injuries and symptoms.

[75]        
In cross-examination Dr. O’Connor was equivocal on this latter point,
noting the medical literature does not support such a proposition but his
clinical experience is that patients who are stronger can do more. Under cross
examination he specified the particulars of an ideal strength and condition
program which I have set out above. There was no suggestion, however, that he
ever provided that same information to Ms. Kaboly-Zadeh.

[76]        
Ms. Kaboly-Zadeh did not ignore what Dr. O’Connor recommended to her
during his assessment. Her evidence, which I accept, is that after meeting with
him she purchased an exercise ball and did the specific exercises he told her
to do with the ball, as well as the plank, along with the at-home exercises she
learned at Karp. She has continued to do them regularly, if not daily.

[77]        
Based on the evidence I conclude the defendant has not established that
Ms. Kaboly-Zadeh unreasonably eschewed recommended treatment, nor is it clear
the extent to which her symptoms would have been reduced or resolved had she
complied with the more intensive regime Dr. O’Connor testified about at trial.

Non-Pecuniary Damages

[78]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The 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.

[79]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

The inexhaustive list of common factors cited in Boyd
[v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes: 

(a) age of the
plaintiff; 

(b) nature of the
injury; 

(c) severity and duration of
pain; 

(d) disability; 

(e) emotional suffering;
and 

(f)  loss or impairment
of life; 

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

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

(h) impairment of physical and
mental abilities;

(i)  loss of lifestyle;
and

(j)  the plaintiff’s stoicism (as a factor that should
not, generally speaking, penalize the plaintiff:  Giang v. Clayton,
2005 BCCA 54).

[80]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[81]        
The injuries Ms. Kaboly-Zadeh suffered in the accident had a significant
impact on most aspects of her life. For several months, the pain and discomfort
she experienced was so severe she could not work at all. Nor could she engage
in any of the sports or activities she had been involved in at the time of the
accident. When she did begin her return to work, her pain and discomfort
persisted, particularly in her mid-back and trapezius areas. Her job as a
practical nurse was a physical one; even with help from other nurses she found
it difficult to perform some of her duties, particularly lifting and
transferring patients. She had to limit the amount she worked to cope with the
symptoms arising from the accident. An attempt to return to full time work
resulted in worse pain and discomfort.

[82]        
At the time of the accident Ms. Kaboly-Zadeh was still in the process of
embarking on her career as a nurse. She was beginning to live out her dream.
She planned to return to school and become a registered nurse, eager to expand
her knowledge and take on more responsibilities. It is obvious that leaving
practical nursing in favour of a less physically demanding job was very
difficult for Ms. Kaboly-Zadeh. Although she has flourished in her new
position, and experiences less pain at work, she continues to want to be a
nurse caring for patients on the front line of medicine.

[83]        
Ms. Kaboly-Zadeh is now 28 years old. Her prognosis for further recovery
is guarded. She continues to suffer from pain and discomfort in her mid-back and
trapezius areas. Prior to the accident she was a highly active person who found
great pleasure in playing soccer and range of other team sports, because of her
own athleticism, her competitive nature and her love of being a part of a team.
Physical fitness was a big focus of her life. She has not been able to resume
this lifestyle. Her attempts at re-entry have been very disappointing and
painful.

[84]        
Ms. Kaboly-Zadeh submits that an award of non-pecuniary damages in the
range of $65,000 to $75,000 is appropriate. She cites the following cases in
support of her submission:

                     
(a)         
Foster v. Kindlan, 2012 BCSC 681 ($75,000)

                     
(b)         
Aubin v. Ball, 2013 BCSC 962 ($75,000)

                     
(c)         
Guthrie v. Narayan, 2012 BCSC 734 (65,000)

[85]        
The defendant submits that an award of $40 -$45,000 is more appropriate
and relies upon the following cases:

                     
(a)         
Basi v. Buttar, 2010 BCSC 9 ($30,000)

                     
(b)         
Romanchych v. Vallianatos, 2009 BCSC 669 ($45,000)

                     
(c)         
St. German v. Jemmott, 2012 BCSC 1041 ($35,000)

[86]        
I consider Ms. Kaboly-Zadeh’s young adulthood to be significant factor. Some
of the authorities provided by the parties include plaintiffs of a similar age.
In the case of Guthrie, the plaintiff was 26 years old at the date of
trial (23 at the time of the accident). She experienced similar injuries. The
impact of those injuries on her emotionally however appeared to be somewhat
greater than that experienced by the plaintiff. I make that observation without
forgetting that Ms. Kaboly-Zadeh should not be penalized for her stoicism. In Romanchych
the plaintiff was a 24 year old science student who suffered soft tissue
injuries, neck and jaw pain that had a similarly dramatic impact on her recreational
activities. Although her symptoms had improved over time, they had not resolved.
That case did not involve the important circumstances of having to give up a
much loved career.

[87]        
Bearing in mind the injuries Ms. Kaboly-Zadeh has suffered, her age, the
impact of those injuries on most aspects of her life including her involvement
in nursing, the factors discussed in Stapley and guided by the cases
provided by the parties, I find an award of $60,000 is appropriate.

Past Loss of Income or Income Earning Capacity

[88]        
Ms. Kaboly-Zadeh began to work again at the end of March 2012. The
parties have agreed that Ms. Kaboly-Zadeh is entitled to $8,077 for past loss
of income, taking into account income tax and the amount she received in
disability benefits from ICBC.

[89]        
 The plaintiff submits she has also suffered a loss of past opportunity
to earn income and seeks an award of $45,000. This amount reflects the
difference between what she actually earned as a licensed practical nurse from
April 2012 onward and what she could have earned had she been able to work the
equivalent of full time in the same position. The defendant’s position is that
Ms. Kaboly-Zadeh has failed to prove any past loss of opportunity to earn
income.

Law

[90]        
The legal test for past and future loss of earning capacity is the same.
A plaintiff must prove that an injury had an effect on her ability to earn
income on a balance of probabilities, but once that has been established,
hypothetical events need not be proved on a balance of probabilities. Instead
they are to be given weight based on their relative likelihood (Athey at
para. 27).

[91]        
Pursuant to s. 98 of the Insurance (Vehicle) Act, R.S.B.C.
1996, c. 231, a plaintiff is entitled to recover damages for her past net
income loss only. 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.

Discussion

[92]        
Ms. Kaboly-Zadeh’s past loss of earning capacity claim is based on the
proposition that she was not able to work to her full potential as a practical
nurse from April 2012, when she returned to work part time, until the beginning
of the trial – a period of two years and two months. She testified that she
would have worked 14 shifts per month if she had not been injured. She gave
evidence that she “mostly got a call a day” from St. Paul’s Hospital and later
Lion’s Gate Hospital, offering her shifts which she refused at times due to her
injuries and pain.

[93]        
The parties agree that Ms. Kaboly-Zadeh actually earned $63,597.65 in
the 26 month post-accident, pre-trial period. Based on 14 shifts per month she
estimates regular monthly earnings of $3,697.54 totalling $96,136.04 over 26
months. Because this figure does not include vacation pay, shift differentials
and double time which she could earn if working on a statutory holiday, she
submits she would have earned in excess of $120,000. Based on this amount, less
the amount she did earn, she seeks $45,000; the net amount of the gross income
loss.

[94]        
The defendant argues Ms. Kaboly-Zadeh returned to working about the same
numbers of hours of work after the accident that she had worked previously. It
is clear from her employment records that Ms. Kaboly-Zadeh worked approximately
two shifts a week, prior to the accident. It is also clear from the employment
records that Ms. Kaboly-Zadeh worked about that amount within a few months of
her return to work at the end of March 2012. The defendant argues Ms. Kaboly-Zadeh’s
bare assertion that she would have worked additional hours but for her
injuries, absent corroboration, is insufficient to prove that she would have
done so but for her injuries. He suggests more specifically she ought to have
called other evidence to confirm her own testimony about turning down shifts
and to prove the difficulties she says she had while doing hospital shifts.

[95]        
The evidence of her fiancé Mr. Ryan Jones and her current employer Ms.
Sacre does corroborate Ms. Kaboly-Zadeh’s testimony of ongoing pain and
physical limitations experienced while working as a practical nurse. Mr. Jones
was living in Ms. Kaboly-Zadeh’s home in Surrey at the time of the accident. He
observed that she was in significant pain and not able to do much at all after
the accident. After she returned to work he observed her coming home in pain.
Although she did not complain too much, she would lie flat on the couch. He
testified that he and Ms. Kaboly-Zadeh began living together as a couple in May
2013. After that he observed she came home from work and some days were okay.
Others were “brutal”. Sometimes she would call him halfway through her shift in
tears while she was lying down in the lunch room because of the pain.

[96]        
Ms. Sacre confirmed many of the tasks required of practical nurses are
physically challenging, especially transferring patients, helping them with
mobility and toileting, and assisting with procedures that may involve holding
a heavy limb or patient’s head. Ms. Sacre testified to her awareness of Ms. Kaboly-Zadeh’s
physical discomfort at times in her current job which is far less physically
demanding. She has noticed Ms. Kaboly-Zadeh rubbing her shoulders and grimacing
in pain at times when she has moved to grab something, although she testified
that the plaintiff does not complain. She further testified that Ms. Kaboly-Zadeh
has missed some hours of work to attend physiotherapy and has returned the next
day apparently in considerable pain. Once or twice Ms. Kaboly-Zadeh has taken a
muscle relaxant while at work and been unable to drive to appointments, so Ms.
Sacre attended instead. Based on this evidence which I accept, as well as Ms. Kaboly-Zadeh’s
own testimony, I am more than satisfied that Ms. Kaboly-Zadeh found it painful
and difficult to carry out her duties as a practical nurse after her return to
work in 2012, even with assistance.

[97]        
Ms. Kaboly-Zadeh’s evidence was that she turned down shifts before the
accident because she did not really need the money. Her fiancé at the time made
a good income and supported her financially. The two of them had purchased a
house in Surrey and she was responsible for cooking and performing the household
chores. I accept that evidence. Ms. Kaboly-Zadeh testified that after she
returned to work she needed do so full-time because her engagement had ended
and she was living on her own in North Vancouver. I also accept this evidence.

[98]        
The defendant submits the pattern of work that emerges from Ms. Kaboly-Zadeh’s
payroll records is not the same as the one she described in her evidence. Ms. Kaboly-Zadeh
testified that she found it difficult to work “back to back shifts” after the
accident. Lion’s Gate Hospital records show she did work back to back shifts on
some occasions. In the summer of 2013 she worked four 12 hour shifts in a row
at St Paul’s. Ms. Kaboly-Zadeh did not deny working more than one shift at time.
Rather, she said that when she did so her recovery time was four to five days.
The defendant argues the pattern of shifts set out in the records is consistent
with the “feast or famine” of casual work rather than Ms. Kaboly-Zadeh choosing
from a variety of shifts in an attempt to lessen the physical impact of the
work.

[99]        
The defendant suggests Ms. Kaboly-Zadeh’s evidence that she received and
turned down shift offers frequently after her return to work should not be
accepted in part because of inaccurate statements she made to medical
professionals about how much she was working. For example Dr. O’Connor’s report
sets out that she was working three to four shifts per week before the accident
and had returned to that schedule. Ms. Craig’s report indicates Ms. Kaboly-Zadeh
reported working three to four shifts per week before the accident and that she
had returned to two shifts a week. During cross examination Ms. Kaboly-Zadeh
accepted the defendant’s suggestion that on average she worked 2 shifts
a week before the accident but it was actually hard to estimate given that her
schedule had been so variable. Although the defendant does not suggest Ms. Kaboly-Zadeh
intended to mislead anyone, he does argue she clearly has a very poor memory
about her work schedule. The point is overstated and does not lead me to
conclude that she is similarly mistaken about receiving frequent shift offers. Given
the uncontroverted evidence that Ms. Kaboly-Zadeh did work on average
two shifts a week after her gradual return to work in late March 2012 and in
fact worked five shifts in a row in late July and early August 2012 because in
her words “she had to try”, the fact that she received and turned down offers
of shifts prior to the accident,  and the evidence regarding Ms. Kaboly-Zadeh’s
ongoing experience of pain particularly while at work, I am satisfied that Ms. Kaboly-Zadeh
did receive and turn down shifts due to her injuries that would have provided
her with at least 14 shifts per month starting in or about the end of July
2012. The evidence does not establish when prior to that Ms. Kaboly-Zadeh
separated from her fiancé and moved to her own residence, which made full time
employment a financial necessity.

[100]     Her
employment records show that the income she did earn prior to trial as a
practical nurse included holiday pay, shift differentials and some overtime. Apart
from challenging her entitlement to an award for past loss of opportunity to
earn income as discussed above, the defendant does not challenge Ms. Kaboly-Zadeh’s
assessment of the amount of damages, excepting that it must be for the net not
gross amount. I accept her assessment that she would have earned gross pay of
approximately $120,000 over twenty six months. I am limiting the duration of
her claim however to 21 months and estimate her gross earnings during that
period would have been approximately $96,925 resulting in a gross loss of
income of $45,559. I trust the parties can agree upon the calculation of what
the net amount would be.

Loss of Future Earning Capacity

[101]     Ms. Kaboly-Zadeh’s
claim under this head of damages is based on the loss of capacity to work full
time as a nurse in hospital. She includes not only a loss of capacity to work
as a practical nurse but also the loss of capacity to work as an RN, a goal she
says she would have accomplished but for her injuries. She submits that an
appropriate award for her loss of future earning capacity is $100,000. The
defendant takes the position Ms. Kaboly-Zadeh’s loss of capacity is best
assessed on a capital asset approach and a modest award in the range of $3,000
to $10,000 would be reasonable.

[102]      Ms. Kaboly-Zadeh
now earns a higher income with Proof of Care than what she would have earned as
a practical nurse working full time.

Law

[103]     A claim
for loss of future earning capacity raises two key questions:

1)    has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so

2)    what
compensation should be awarded for the resulting financial harm that will
accrue over time?

[104]     The
assessment of loss must be based on the evidence, and not an application of a
purely mathematical calculation. The appropriate means of assessment will vary
from case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.); Pett v. Pett, 2009 BCCA 232.

[105]      The
essential task of the Court is to compare the likely future of the plaintiff’s
working life if the accident had not happened with the plaintiff’s likely
future working life after the accident: Gregory v. Insurance Corp. of
British Columbia, 2011 BCCA 144 at para. 32.

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

[107]     Given Ms. Kaboly-Zadeh’s
current employment and her pre accident employment history, I agree with the
defendant that the capital asset approach provides the appropriate means of
assessing Ms. Kaboly-Zadeh’s claim for loss of future earning capacity. The
capital asset approach involves considering factors such as:

i)       whether
the plaintiff has been rendered less capable overall of earning income from all
types of employment;

ii)     whether
the plaintiff is less marketable or attractive as a potential employee;

iii)    whether the
plaintiff has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and

iv)   whether the plaintiff
is less valuable to herself as a person capable of earning income in a
competitive labour market.

Brown at para. 8; Gilbert at para. 233; Morgan
at paras. 53 & 56.

[108]     Though the
capital asset approach is not a “mathematical calculation”, the trial judge
must still explain the factual basis of the award. The court must consider the
four factors set out in Brown in the context of the facts of the case
and make findings of fact as to 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 at para. 56.

Discussion

[109]     Since
November 2013, Ms. Kaboly-Zadeh has worked full time at Proof of Care, a small
business that Ms. Sacre incorporated in 2011. Ms. Sacre is its sole owner. There
is no dispute about what Ms. Kaboly-Zadeh currently earns: $2,500 per month in
salary; a variable monthly commission that varies with Proof of Care’s revenue
which has amounted to about $3,000 per month; additional income paid at $17.00
per hour for covering shifts or parts of a shift for a care aide and $25.00 per
hour for those of a practical nurse; a cellular phone allowance and the use of
a company car at the company’s sole expense for both business and personal use.
The evidence is that a registered nurse working full time earns between $60,000
and $65,000 per year. There is little evidence as to full time employment
income for practical nurses. In the year prior to the accident, Ms. Kaboly-Zadeh
earned $30,727.00 working approximately two shifts a week for a total of eight
per month which is somewhat more than half time.

[110]     The fact
that Ms. Kaboly-Zadeh is now earning more than she was at the time of the
accident or than she would if she worked full time as a nurse does not preclude
her from an award for loss of future earning capacity. It is not a loss of earnings
but rather a loss of earning capacity, a capital asset for which compensation
must be made: Parypa v. Wickware, 1999 BCCA 88 at para. 62. Accordingly
even a plaintiff who is able to earn as much after her injuries as before may
be entitled to compensation because some occupations will be closed to her and
it is “impossible to say that over (her) working life the impairment will not
harm (her) income earning capacity”: Palmer v. Goodall, (1991) 53
B.C.L.R. (2d) 44, quoted in Parypa at para. 63. In Pallos the
plaintiff suffered a leg fracture in the accident and permanent pain which
limited his capacity to perform certain activities. At the time of trial he was
earning more income from the same employer as he did before the accident
despite being disabled from his previous duties because his employer had
assigned him to lighter duties. Finch J. A. concluded that his earning capacity
had nonetheless been reduced.

[111]     In Perren
the Court of Appeal clarified that Pallos does not stand for the
proposition that in the absence of any real possibility of future loss a
plaintiff remains entitled to an award for loss of earning capacity. Instead it
was and remains the case that the plaintiff must always prove that there is a “real
and substantial possibility” of a future event leading to an income loss: Perren
at para. 32. In Pallos there was no dispute that the plaintiff had
proven this.

[112]     Here I
have already found that Ms. Kaboly-Zadeh has suffered an impairment of her
earning capacity because of the injuries she suffered in the accident. The
evidence of Ms. Craig, which I have accepted, is that the scope of occupations
once viable from a physical perspective for Ms. Kaboly-Zadeh is reduced,
leaving her with a reduction in her competitive employability both within both
nursing and beyond. I have further found that the functional impairments Ms. Kaboly-Zadeh
now experiences are likely to continue indefinitely.

[113]     Ms. Kaboly-Zadeh
was a successful nursing student who was one of very few students to obtain
employment with St. Paul’s Hospital following completion of her program. Her
current employer Ms. Sacre describes her work performance with Proof of Care as
a “pod manager” in exemplary terms. She referred to Ms. Kaboly-Zadeh as a
fantastic employee who is a great team player. Ms. Sacre commented in
particular on Ms. Kaboly-Zadeh’s drive, ambition and her passion about nursing
that includes her desire to become a registered nurse. “She wants to know what
I know”, said Ms. Sacre. She spoke favourably of Ms. Kaboly-Zadeh’s ability to
deal with clients and others and her excellent assessments of clients’ needs.
Ms. Sacre also appeared to give Ms. Kaboly-Zadeh some credit for the
considerable growth in the business since she was hired. When she was hired in
November 2013, the business had eight clients and 10 to 12 caregivers and now
there are 23 clients and 36 caregivers. Ms. Kaboly-Zadeh manages all of those
staff and monitors the care of all of those clients. Additional clients and
staff will be the responsibility of another pod manager. Ms. Sacre testified
that she intends to continue to develop and expand the business.

[114]     Ms. Sacre
also gave evidence about the physical demands of working as a registered nurse
and said they are essentially the same as those of a practical nurse in
hospital. Ms. Kaboly-Zadeh testified that prior to the accident she was
investigating various registered nursing programs and planning to apply. She
had to  to complete a certain amount of work as a practical nurse before she
could apply. Given Ms. Kaboly-Zadeh’s evidence about her commitment to nursing
and love of the work, along with the evidence of Ms. Sacre and her successful
completion of the practical nursing program, I am satisfied that but for the
accident Ms. Kaboly-Zadeh would have completed her registered nursing degree and
continued her career in nursing as an registered nurse in hospital.

[115]     Having
concluded Ms. Kaboly-Zadeh has suffered a loss of capacity to earn future
income as a registered nurse, I must consider whether Ms. Kaboly-Zadeh has
established a real and substantial possibility of a future event leading to an
income loss: Perren at para. 25. The standard of real and substantial
possibility is lower than a balance of probabilities but higher than mere
speculation: Athey at para. 27.

[116]     Despite
her success so far at Proof of Care, the reality is her position does not
provide job security. The business is small and in its early days. While all indications
are that it will continue to grow and perform well, this is by no means a
certainty. Additionally Ms. Kaboly-Zadeh could lose her job there whether the
business is successful or not for any number of reasons. I have also considered
general contingencies, such as her having children and their impact on a loss
of future income in her current position. Given these circumstances I am
satisfied that Ms. Kaboly-Zadeh has established there is a real and substantial
possibility she will experience income loss in the future.

[117]     The
question then becomes what is the value of Ms. Kaboly-Zadeh’s loss of future
earning capacity based on the capital asset approach where the loss, though
proven, is not measurable in a pecuniary way. There is a certain overlap in considering
as I must the Brown factors, set out above, and the negative and
positive contingencies at this stage. I find Ms. Kaboly-Zadeh has established
she has been rendered less capable overall from earning income from employment
involving physical demands equal to those found in hospital nursing, that she
is less marketable and attractive as an employee as a result and that she will
not be able to take advantage of all job opportunities that would have been
open to her prior to the accident, namely full time hospital or direct care
nursing positions. I have also considered Ms. Kaboly-Zadeh’s positive qualities
as an employee discussed above. In my view she will have more success in the
workforce than others faced with the same functional limitations.

[118]     Based on
the evidence I consider the sum of $60,000 reasonably and properly compensates
Ms. Kaboly-Zadeh for her loss of future earning capacity. That figure reflects
about one year’s income for a registered nurse based on the evidence.

Costs of Future Care

[119]     Ms. Kaboly-Zadeh
advances a claim for cost of future care in the amount of $5,000 for the cost
of further medication to deal with pain and treatments. Ms. Kaboly-Zadeh
testified to the ongoing use of over the counter and prescription medications
to deal with pain. At the time of the trial she was attending physiotherapy and
had been receiving some IMS treatments. There was no evidence about the cost of
further medication.

[120]     The
defendant submits that $1,000 would be an appropriate award for cost of future
care. The defendant accepts that Ms. Kaboly-Zadeh is entitled to the cost of
ten physiotherapy treatments at the beginning of an active exercise program, at
a per visit cost of $75.00. The defendant also submits that in the event that
the court finds Ms. Kaboly-Zadeh requires an ergonomic assessment or equipment
due to the accident, there should be a contingency reduction of 75% of the cost
to account for her employer’s obligation and proposes $200 as a fair award for
all ergonomic related future care.

[121]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her to her pre-accident condition insofar as
that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at para. 172; Williams v.
Low, 2000 BCSC 345; Spehar v. Beazley, 2002 BCSC 1104 at para. 55; Gignac
v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 29 – 30.

[122]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one. For an award of future care: (1) there
must be a medical justification for claims for cost of future care and (2) the
claims must be reasonable: Milina at 84; Tsalamandris v.
McLeod, 2012 BCCA 239 at paras. 62 – 63. An assessment of damages for cost
of future care is not a precise accounting exercise: Krangle (Guardian ad
litem of) v. Brisco, 2002 SCC 9 at para. 21.

[123]     Both Dr.
O’Connor and Ms. Craig recommended that Ms. Kaboly-Zadeh participate regularly
in a strengthening program. Ms. Craig specifically recommended Ms. Kaboly-Zadeh
attend a class such a Pilates approximately twice a week for this purpose. She
estimated the cost at $22.00 per class. Dr. O’Connor’s recommendation included
not only regular strengthening but also regular conditioning, but he did not
identify a particular program.

[124]     The
defendant argues Ms. Kaboly-Zadeh is not entitled to the cost of a gym class or
fitness classes such as Pilates because she would have incurred such expenses
in any event. In other words the accident did not cause this new expense. I do
not accept this argument. While the evidence is Ms. Kaboly-Zadeh was physically
active before the accident and participated in a number of team sports as well
as other forms of exercise including attending the gym, she did not testify to
attending regular strengthening classes prior to the accident. The expense of the
classes recommended by Ms. Craig would be incurred for a medical purpose. I am
satisfied that the cost of such classes is reasonably necessary to promote her
physical health and restore her as much as possible to her pre-accident
condition. I award her $1,000 for the cost of such classes for one year,
assuming classes are offered for something less than every week of the year for
a period of one year.

[125]     Ms. Craig
also offers the opinion that Ms. Kaboly-Zadeh will require physiotherapy and or
massage therapy on a monthly basis to address her pain and flare ups for as
long as her symptoms persist. Similarly, Dr. Bugeya recommended that physiotherapy
with Augmented Soft Tissue Manipulation (“ASTYM”) modalities may be helpful to
Ms. Kaboly-Zadeh. He testified that the medical literature provides that ASTYM
is successful in breaking down scar tissue. It requires several treatments.
Based on Ms. Craig’s view that Ms. Kaboly-Zadeh requires physiotherapy or massage
on an ongoing monthly basis, I conclude that such treatments are medically
necessary for Ms. Kaboly-Zadeh. In my view what is reasonable is an award for
the cost of such treatments each month for two years. Based on the defendant’s
acceptance of $75.00 per treatment for physiotherapy, I award Ms. Kaboly-Zadeh
$1,800 for such treatments or massage therapy. I grant no award for ASTYM
treatments. Leaving aside the absence of a cost estimate for such treatments,
Dr. Bugeya testifies only that they may be helpful, which is not sufficient to
conclude that they are medically necessary.

[126]     Dr. Bugeya
also offered the opinion that Ms. Kaboly-Zadeh may benefit from a physiatrist
reassessment “with the consideration of injections of trigger points for pain
and spasms.” Again his evidence does not support a finding that such a
reassessment is medically necessary and so I grant no award for such a
reassessment.

[127]     Ms. Kaboly-Zadeh
made no specific submissions in support of a claim for the cost of an ergonomic
assessment, although it was recommended by Ms. Craig whose evidence I accept. I
agree with the defendant that it is reasonable in the circumstances for a
significant contingency reduction to be made for the cost of such an assessment
which Ms. Craig estimated at $400 – $450.00. Accordingly, I award Ms. Kaboly-Zadeh
$200 for this future care cost.

[128]     The total
amount of the award for the cost of future care is $3,000.

Special Damages

[129]     Special
damages have been agreed to in the amount of $1,111.07.

Summary

[130]     In
summary, the plaintiff is awarded damages as follows:

–           
$60,000.00 for non-pecuniary damages

–           
$8,077 for past loss of income;

–           
the net amount after deducting the amount of income tax payable from
the gross amount of $45,559.00 for loss of past earning capacity;

–           
$60,000.00 for loss of future earning capacity;

–           
$3,000.00 for cost of future care; and

–           
$1,111.07 in special damages.

Costs

[131]    
If the parties are unable to agree on costs, they may speak to the
issue.

“Fleming J.”