IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150107

Docket: M146862

Registry:
New Westminster

Between:

Laurie Smith

Plaintiff

And

Scott Neil and Rebecca
Neil

Defendants

Before:
The Honourable Mr. Justice Harvey

Reasons for Judgment

Introduction

[1]            
The plaintiff, a 56-year-old female, was injured in a motor vehicle
accident which took place November 23, 2010 at the intersection of 222^nd
St. and 50^th Avenue in Langley, British Columbia. Liability has been
admitted on behalf of the defendants.

[2]            
The plaintiff’s vehicle broad-sided the defendants’ after the defendants
ran a stop sign and crossed the plaintiff’s path, leaving the plaintiff with no
ability to avoid the collision. The accident was of sufficient force such that
both of the vehicles involved were written off.

[3]            
The defendants do not deny that the plaintiff suffered injuries as a
result of the accident. The singular issue is the quantification of the
plaintiff’s damages for her soft tissue injuries.

Background

[4]            
The plaintiff is the mother of an adult daughter, Elyse, who lives with
the plaintiff and her husband, Mark, in their Langley home.

[5]            
Prior to the birth of her daughter, the plaintiff worked at a variety of
different jobs. All were of a sedentary nature.

[6]            
She removed herself from the work force during Elyse’s school years and
assumed the role of homemaker and mother for most of the 1990s.

[7]            
The plaintiff re-entered the work force after her daughter was in
secondary school. Since re-entering the work force, her employment has been
either seasonal or part-time.

[8]            
In 2007, the plaintiff obtained her current employment with Heli College
as a clerical worker. Her current hourly rate is $14.95 per hour.

[9]            
Prior to the accident, the plaintiff worked three days per week (Friday,
Saturday and Monday), generally 20 to 22 hours weekly, as well as providing
relief to the other two employees during their summer vacations, when they were
ill or had medical appointments.

[10]        
Each winter, for a number of years prior to and after the accident, she,
her daughter and her husband took a three to four week vacation in Palm
Springs. She enjoyed playing golf there with her daughter and mother, whose
place the plaintiff and her family stayed at while vacationing.

[11]        
The plaintiff was an avid gardener and enjoyed entertaining. According
to her testimony, supported by that of her husband and daughter, she was
responsible for the majority of the homemaking and cooking. She was a
meticulous homemaker.

[12]        
Prior to the accident, the plaintiff was generally in good health,
although she suffers from a thyroid condition which she treats with medication.

[13]        
By the time of the accident, she had long since recovered from a
previous motor vehicle accident in 1988 where she suffered soft tissue injuries
and accompanying headaches.

The Accident

[14]        
The accident occurred at a controlled intersection near 222^nd
Street and 50^th Avenue in Langley. The plaintiff was traveling
southbound on 222^nd Street in a mid‑size SUV when the
defendant driver crossed her path, having ignored the traffic control device on
50th Avenue.

[15]        
The plaintiff attempted to avoid the collision, but was unable to do so.
Her airbag deployed upon impact. Her vehicle was spun in a clockwise motion.

[16]        
As noted, both vehicles suffered substantial damage. Neither was
repaired.

[17]        
The plaintiff bounced about in the car’s interior despite wearing a
three point seatbelt. Her leg was pinned under the dash and she required
assistance from attending firefighters to be removed from the vehicle.

[18]        
Police, firefighters and an ambulance attended the scene of the accident.
The plaintiff was unable to weight bear on her left foot as a result of
injuries to it when it was jammed under the dash. A fireman assisted her to the
rear of her vehicle so she could sit at the back of the car.

[19]        
The plaintiff remained there for 10 to 15 minutes, until her husband
arrived. She was offered transport to the emergency ward by the ambulance crew.
Wary of long waits at emergency for a non-life-threatening injury, she decided
to go immediately to her family doctor instead of the emergency ward.

[20]        
By the time she left the scene of the accident, the plaintiff considered
her left foot to be the worst of her injuries, followed by her right hip and
right leg from hitting the console. She also experienced pain in her left shoulder,
chest and abdomen. She was having trouble breathing. She felt she was ‘in
shock’.

The Aftermath

[21]        
During the first few days following the accident, the plaintiff
described her condition as that of a ‘beat up chew toy’. She ached all over.
She could not comfortably move or sit. She treated herself with pain
medications and ice.

[22]        
X-rays revealed that she had suffered no fractures to her foot or
otherwise. Her left foot injury resolved uneventfully within a matter of weeks.
So did the bruising to the various affected areas.

[23]        
When she began weight-bearing, she noticed increasing hip pain. Her left
neck and shoulder remained sore. She was having headaches.

[24]        
The plaintiff absented herself from work in the first two weeks
following the accident, but returned to work thereafter and has not missed a
further day from her scheduled hours as a result of injuries from the accident.
Her employer paid her for her time away from work. There is no claim for past
wage loss  but rather a claim for the lost opportunity of working one
additional day per week since June, 2014.

[25]        
In the days immediately following the accident, after a brief return to
work, the plaintiff, her husband and daughter went on a pre-planned trip to
Palm Springs, where her parents own accommodation.

[26]        
She was unable to golf, as was her usual habit. She was unable to
accompany her husband on hikes, which was a common activity for them on these
annual trips to Palm Springs.

[27]        
Upon her return to the Lower Mainland in January 2011, her major
complaints were of neck and left shoulder pain with accompanying headaches that
seemed to be triggered by the onset of neck pain.

[28]        
During this time, the plaintiff still had symptoms in her lower back, hip
and groin area. The pain in her hip and groin radiated down the front of her leg
to her knee.

[29]        
She returned to her family physician, Dr. Brynjolfson, who advised
the plaintiff to attend physiotherapy. Commencing in February 2011, she began a
course of physiotherapy which lasted some 18 or 19 appointments for treatment
to all affected areas.

[30]        
Her physiotherapist, Jenny Fitzmaurice, testified that on treating the
plaintiff, she took a history which mirrored that which I have stated above
and, on physical examination, noted limited rotation and extension of the
plaintiff’s left neck and shoulder area. She could hear grinding in the
plaintiff’s neck, more pronounced on the left side than on the right. She also
determined that her left hip had less flexion. A number of areas of her body on
the left side elicited pain on palpation.

[31]        
Ms. Fitzmaurice said she was able to bring on symptoms, notably
headache, by aggressive treatment of the plaintiff’s left neck area.

[32]        
She testified that the plaintiff presented in a ‘head forward posture’,
which is commonplace in patients with neck or shoulder injuries. She testified
that the plaintiff was compliant with her treatment and seemed well motivated.

[33]        
After 18 sessions, Dr. Brynjolfson recommended a continuation of
physiotherapy. Ms. Fitzmaurice was on holidays and the plaintiff was referred
to another physiotherapist at the Langley clinic. Her experience with the
replacement was not positive. The treatment caused her pain to increase in the
affected areas. Thereafter, she discontinued further physiotherapy.

[34]        
From May 2011 until November 2014, the plaintiff received no medical
treatment for her ongoing injuries. Only recently, in October/November 2014,
did the plaintiff again seek out medical treatment for her injuries from the
accident. She was referred for treatment for right shoulder complaints which,
according to the plaintiff, have come about as a result of overuse of her right
shoulder by virtue of the injury to her left. No medical opinion was offered to
support that contention. I observe that the plaintiff is right handed.

[35]        
In the course of treating the plaintiff’s right shoulder, Ms. Fitzmaurice
both treated and observed the left side of the plaintiff’s body and said she
still observed the same pain forward posture apparent from her initial
assessment in 2011.

[36]        
The plaintiff was originally prescribed muscle relaxants. She still
takes those occasionally; although I note the last prescription she filled was in
November 2012, save for a prescription in October 2014, presumably for her
right shoulder complaints. She has also filled one prescription for 30 pills of
Ativan to control anxiety while driving or being a passenger on extended trips.

[37]        
Otherwise, the plaintiff’s pain management and rehabilitation has
consisted of over-the-counter analgesics which she says she takes frequently
when bothered by headache.

[38]        
The plaintiff’s current condition is relatively unchanged from that
immediately following the accident. She continues to suffer neck and left
shoulder pain. When referring to her shoulder, the plaintiff described the
front, top and back of her shoulder area and the whole left side of her neck.
The onset of pain in these areas causes headaches, which, at times, are
debilitating.

[39]        
She also says she continues to experience left hip pain with radiation
into the groin and leg. This, according to her and others who observe her, has
resulted in a noticeable limp and has affected her ability to engage in hiking,
albeit she continues to take long daily walks.

[40]        
Her symptoms affect her function to the extent she is unable to vacuum,
experiences pain when she elevates her left and now right arm above shoulder
level and she is unable to walk on uneven or steep terrain without experiencing
pain.

[41]        
The result, according to the plaintiff, is that she has more or less
given up golf; significantly reduced her gardening; cut back on social
functions, which she used to host; and disrupted her normal routine of tending
to all household chores.

[42]        
Her work is affected to the extent that she can no longer do her share
of the vacuuming at work, lift heavy items, such as boxes of photocopy paper,
or move heavy files. Her coworkers have picked up the slack.

[43]        
Despite these shortcomings, a recent review of her work performance by
her employer resulted in across-the-board high marks.

[44]        
Since the accident, in addition to her regularly scheduled 20 to 22
hours weekly, the plaintiff has responded to occasional call-ins and worked
full shifts during the summer when her coworkers took vacation. In June 2014,
owing to the retirement of one of her coworkers, the plaintiff picked up
another full day of work, so that her weekly average is now 30 hours instead of
20 to 22 hours per week.

[45]        
Her daughter, Elyse, and husband, Mark, perform some of the household
chores, formerly the domain of the plaintiff, although the plaintiff does the
majority of the cooking, laundry, and cleaning, including bathrooms and steam
cleaning the majority of the floors in the family home. Vacuuming and elevated
dusting or cleaning seem to be the plaintiff’s major restrictions.

[46]        
The plaintiff has also gained 20 pounds since the accident, which she
attributes to a combination of inactivity, coupled with fatigue, which causes
her to eat more.

[47]        
The plaintiff seems resigned to the chronicity of her symptoms and, with
the exception of her re-attending physiotherapy for treatment of her right shoulder;
she has not explored other modalities of treatment, such as massage,
acupuncture, chiropractic treatments or the like.

[48]        
As noted, other than over-the-counter analgesics, she has not been
taking medications until recently when she was again prescribed a muscle
relaxant. The weight of the evidence indicates this is for her right, not left
shoulder complaints.

Damages Sought

[49]        
The plaintiff seeks damages for non-pecuniary loss, special damages of $2,117.50,
$1,400 of which is for the MRI ordered by Dr. Badii, the rheumatologist
engaged by plaintiff’s counsel to provide a medical opinion as regards the
plaintiff’s condition, as well as damages for loss of earning capacity, housekeeping
capacity and future care. She has experienced no loss of income to date, but
suggests she is entitled to compensation calculated on the basis of one missed
day per week from June 2014.

[50]        
The defendants acknowledge the plaintiff was injured in the accident but
argue that her injuries are resolved and that her injury ought to be assessed
as a mild to moderate soft tissue injury.

[51]        
They argue that her entitlement to damages ought to be restricted to non‑pecuniary
loss, coupled with a modest award for special damages in respect of the
physiotherapy taken in 2011 and prescriptive medications for which receipts
have been produced.

Medical Evidence

[52]        
The plaintiff tendered only one medical opinion in support of her
contention that her injuries are chronic and that she will remain in her
current state indefinitely, subject to ongoing restrictions on her function and
continuing impairment of her enjoyment of her previous recreational pursuits.

[53]        
Dr. Brynjolfson, her family physician, did not offer an opinion on
her condition. Instead, the plaintiff tendered the medical opinion of Dr. Badii,
a rheumatologist, whom she saw on one occasion in January 2014. His report is
dated January 29, 2014. He provided a supplemental report on March 12, 2014 after
receiving the plaintiff’s MRI results.

[54]        
Dr. Badii was of the opinion that the plaintiff sustained whiplash
associated soft tissue injuries in her left neck, left shoulder, lower back and
left buttock and hip region. He was of the opinion that her presenting
complaints were, if not permanent, indefinite in nature and would persist into
the foreseeable future, without abatement. He acknowledged that he found no
objective symptoms, but relied, instead, upon the plaintiff’s self-report. He
did observe the plaintiff’s limp. He described it as an antalgic limp, with the
left leg externally rotated compared to the right side. He opined that it was
consistent with the nature of her reported injury to the left hip. He was
concerned that she had experienced a labral tear in the left hip and referred
her for an MRI. The result of the MRI was negative.

[55]        
Dr. Badii was unable to produce his notes taken at the time of the plaintiff’s
appointment, but testified that he had immediately transcribed those notes ad
verbatim and that they accurately reflected the plaintiff’s report to him
and his observations of her.

[56]        
Dr. Badii noted that while, generally, soft tissues heal over a 3
to 6 month period following trauma, in a small percentage of cases pain lasts
longer and, of those, 20% of people so afflicted will experience chronic pain.
He categorizes the plaintiff as such a person.

[57]        
Dr. Badii accepted, at face value, the plaintiff’s apparent comment
that she had substantially cut back on her household chores, and that such were
now being performed by her daughter and husband. However, Dr. Badii was
unable to give any detail as to what the plaintiff told him that she had
previously done and what she no longer could do.

[58]        
He opined that the plaintiff’s ongoing condition would be best served by
further physiotherapy or acupuncture, some 12 visits a year, as well as pain
medication. The former recommendation was premised on the plaintiff’s report to
him that ‘she has benefited from physiotherapy and/or acupuncture for temporary
symptom control.’

[59]        
At no time did the plaintiff receive acupuncture by way of treatment for
her complaints. She stopped physiotherapy in May 2011, complaining that it was
worsening, not improving, her condition.

[60]        
Dr. Boyle, an orthopedic surgeon, prepared a medical report, at the
instance of the defendants after seeing the plaintiff on one occasion in May
2014.

[61]        
Dr. Boyle found no objective signs of ongoing injury. He did
determine a minor labral tear in the left hip but opined that it was not
attributable to the accident on the basis that if it had resulted from the accident,
the plaintiff would have been unable to walk and would have experienced significantly
more distress following the accident. Having said that, Dr. Boyle
acknowledged that he took no detailed history of the plaintiff’s condition
following the accident, such as to know her specific complaints at the scene of
the accident and immediately thereafter.

[62]        
The tear, whatever its origins, is not in need of surgical repair. Nor
was it symptomatic prior to the accident.

[63]        
Dr. Boyle relied on literature, which tended to confirm Dr. Badii’s
stated view, that most patients experiencing soft tissue injuries experience
complete recovery within 3 to 6 months. The study he referenced makes clear
that two thirds of such patients fully recovered, but the remainder experienced
longer-term pain, and a small portion of patients experienced chronic pain.

[64]        
Dr. Boyle opined that those experiencing chronic pain would exhibit
objective symptoms, of which he found none in the plaintiff. However, he was
unable to reference any passage of the article he relied upon which offered
that clarification.

[65]        
Dr. Boyle saw no further need for treatment, although he acknowledged
the possibility that the plaintiff might still be experiencing pain to the
degree she stated.

[66]        
Neither Dr. Badii nor Dr. Boyle expressed the opinion that her
stated injuries would interfere with her work performance.

[67]        
Neither expected her symptoms to worsen.

[68]        
Following the addition of a full day’s work to her weekly schedule in
June 2014, the plaintiff re-attended upon Dr. Badii and noted to him ‘she
welcomed the additional hours and enjoyed her work for its social component and
the ability to get out of the house.’

[69]        
Neither doctor expressed an opinion that the plaintiff required
homemaking assistance.

[70]        
The plaintiff did not report any interference with her function at work
to Dr. Badii. His only reference to her work performance is noting she
missed two weeks following the accident. He otherwise agreed that her function
at work gave rise to no complaints to him.

Credibility of the Plaintiff

[71]        
In the assessment of damages where the complaints are subjective and not
borne out by objective evidence, the court must be especially vigilant of
misstatement, over-statement or outright deception: Price v. Kostryba (1982),
70 B.C.L.R. 397 (S.C.).

[72]        
Here, the defendants, while acknowledging the plaintiff was injured,
caution against accepting the whole of her complaints at face value. Counsel
suggests that the plaintiff gave conflicting reports on her examination for
discovery compared to her testimony at trial when it came to the extent of her ongoing
impairments relating to her homemaking and work capacity.

[73]        
In contrast to the plaintiff’s stated loss of function at work, counsel
points to her performance review indicating she has excelled in almost all
reported areas. Further, she told Dr. Badii that her injuries were not
affecting her work. She reported no similar limitations to him as she did at
trial.

[74]        
The plaintiff failed to report her previous incident of hip pain, in
February 2010, to either doctor, although it occurred only nine months prior to
the accident. Counsel for the defendants acknowledges that the two events are
unrelated but says her failure to report her previous symptoms undermines the
plaintiff’s credibility.

[75]        
In direct examination, the plaintiff stated that standing or walking exacerbated
her hip pain, and she reported to Dr. Badii that she walks frequently to
get pain relief in her left hip. She reported to Dr. Boyle that she was
comfortable walking.

[76]        
The defendants pointed to another discrepancy when the plaintiff
testified she had continuous sleep difficulties, but reported to Dr. Boyle
she experienced only occasional sleep interruption.

[77]        
The defendants submit that the combined effect of these and other
inconsistencies should undermine my confidence in the plaintiff’s credibility
and, given her complaints are subjective in nature; the caution in Price
has application here.

[78]        
While acknowledging that the plaintiff was not entirely consistent in
her presentation of her symptoms, I am generally satisfied that she has
attempted to present them in a forthright manner. That is not to say I accept
that the totality of the symptoms affect her life as dramatically as she
states. Were that so, I would have expected that the plaintiff would have
pursued more aggressive treatment in different medical disciplines to achieve
relief.

[79]        
In concluding that the plaintiff has made her best efforts to accurately
describe her ongoing discomfort, I am guided by the number of collateral
witnesses who testified to the plaintiff’s pre-accident condition and the discernible
changes which they have observed in her day-to-day presentation since.

[80]        
The reports from the lay witnesses, particularly those unrelated to the
plaintiff, are consistent with the plaintiff’s stated complaints and
restrictions on her social and physical activities.

[81]        
I also rely upon the evidence of Ms. Fitzmaurice about her
observations of the plaintiff’s condition in October/November 2014. Although
the referral back to physiotherapy was for a symptom I find not proven to be
causally connected to the accident, Ms. Fitzmaurice observed and treated the
plaintiff’s residual symptoms from the 2010 accident.

[82]        
However, given that the plaintiff has treated her complaints for the
past four years with non-prescriptive medications, sought no other treatment so
as to alleviate or abate them and has declined to make the $200 investment to
buy the machine she testified offered her some relief from her headaches, I am
not of the view that her symptoms are so intrusive on her day-to-day life as she
asserts.

[83]        
No doubt the recent symptoms relating to her right shoulder has caused
the plaintiff some greater degree of impairment. However, I am not satisfied,
on the basis of her self-diagnosis, that her right shoulder complaints have any
causal connection to the accident. The plaintiff is and has always been right
hand dominant. Although the plaintiff may indeed use her left arm less than was
previously the case, such, without medical support, does not result in a
conclusion that her right shoulder pain has come about as a result of the
accident.

[84]        
The plaintiff is at an age where a number of factors could plausibly
explain the onset of her right shoulder pain. In the absence of a medical
opinion confirming the plaintiff’s theory of a causal connection, I am unable
to attribute her right shoulder symptoms to the motor vehicle accident of 2010.

[85]        
In my view, the medical evidence presented adds little to the assessment
of the plaintiff’s current condition. The plaintiff’s injuries were and remain
subjective in nature. While the lack of objective symptoms requires closer
scrutiny to complaints of pain than is required where there is evidence of bone
injury or muscle trauma, both doctors agree a finding of such hinges upon the
patient’s credibility.

[86]        
Other than the issue of the plaintiff’s right shoulder, the defendants
brought no argument to counter the assertion that the plaintiff’s current
symptomology is causally related to the accident. Had such an argument been put
forth, I would have rejected it based upon the absence of meaningful complaints
to the affected areas prior to the accident, the continuity of those complaints
after the accident, coupled with significant force directed to the plaintiff
during the accident.

[87]        
In short, I conclude that the plaintiff continues to experience symptoms
of consequence, particularly to the area of her neck and left shoulder, with
resultant headaches, left hip pain with radiation into her groin and down her
leg to the front of her knee.

[88]        
The totality of those remaining symptoms have an ongoing impact on the
plaintiff’s enjoyment of her day-to-day life and cause her discomfort in doing
some of her work related tasks. They are not, in my mind, as life altering as was
suggested by the plaintiff, having in mind the degree of retained function in
the affected areas and the recent increase in her hours of work.

Discussion

Non-Pecuniary Loss

[89]        
The leading authority on the considerations underlying the assessment of
non-pecuniary loss is Stapley v. Hejslet, 2006 BCCA 34. I have
reviewed the considerations outlined at paras. 45 and 46 and consider them
in my assessment of the plaintiff’s non-pecuniary damages.

[90]        
The plaintiff argues that she faces chronic pain that significantly
impairs her enjoyment of life.

[91]        
Accordingly, the plaintiff suggests her pain is chronic with little, if
any, chance of abatement for the remainder of her life. Based on the following
authorities, the plaintiff suggests she is entitled to damages in the range of
$85,000 to $120,000.

[92]        
The defendants say damages of $40,000 are more appropriate.

[93]        
No doubt the plaintiff’s enjoyment of life has been affected by the
accident. While not totally disengaged from her former recreational pursuits,
she has modified her walking to eliminate certain more challenging hikes,
almost abandoned golf as a recreational pursuit and lessened her involvement in
her garden. She also has reduced her social interaction.

[94]        
I recognize that the plaintiff is possibly more stoical in her acceptance
of her injuries than others, as evidenced by her continued employment without
interruption some two weeks following the accident.

[95]        
With respect, I find the authorities referenced by the defendants
provide compensation for injuries which I find to be less than those of the
plaintiff.

[96]        
In assessing the extent of the plaintiff’s injuries, I make a little
allowance for her stated driving related anxiety. There is no opinion in
support of its origins; no investigation into the symptoms so as to provide for
their abatement, and it appears from the evidence that the plaintiff drives
routinely from place to place, including lengthier journeys. The only
discernible impact on her day-to-day life is the fact of her preferring to
drive rather than leaving it to others and being a passenger in the car.

[97]        
In arriving at an appropriate compensatory award, fair to both the
plaintiff and the defendants, I note the chronicity of her symptoms, her age,
the restrictions her injuries have imposed upon her day-to-day life, including limitations
on her recreational pursuits, gardening, hiking and golf, and the fact that her
general health has led to a more reclusive lifestyle with less social
interaction with her friends and neighbors.

[98]        
As noted, I consider that the plaintiff has, likely unintentionally,
overstated the pain component of her injuries and, likely, its frequency,
having regard to her function at work, her willingness to increase her work
hours, the lack of treatment directed at the afflicted areas and the modest use
of medication to control ongoing pain.

[99]        
In reviewing the authorities provided by the plaintiff, I conclude that
most are for injuries I consider to be more significant than those of the
plaintiff. Closest, perhaps, to the facts before me are the cases of Clark
v. Kouba, 2012 BCSC 1607 [Clark] and Paller v. Regan, 2013
BCSC 1672 [Paller].

[100]     In Clark,
the 49-year-old female plaintiff suffered chronic soft tissue injuries
impacting all aspects of her life. The plaintiff in Clark had to modify
her workday to manage pain. As here, pain was exacerbated by sitting and
created difficulty with household chores, leaving the plaintiff exhausted and
irritable. Her symptoms also impacted her interpersonal relationships and socialization.
The award for non-pecuniary damages was $85,000.

[101]     In Paller,
the plaintiff was a 49-year-old male who, like the plaintiff here, was involved
in a T-bone collision resulting in back and neck pain as well as headache. Back
pain radiated into his buttocks and down towards his knees. In Paller,
the plaintiff suffered interference with his recreational pursuits,
specifically hockey. He, too, became irritable and suffered sleep interference
and an inability to do household chores. Similar to Clark, the award in Paller
for non-pecuniary damages was $85,000.

[102]     I see
little difference between the injuries in the above noted cases and those
suffered by the plaintiff here, and thus conclude that the appropriate award
for non-pecuniary loss is $85,000.

Loss of Future Earning Capacity

[103]     The
plaintiff bears the onus of establishing a real and substantial possibility of
a future event leading to an income loss before the court will consider an
award of future earning capacity. Once established, the court must determine
between the earnings approach or the capital asset approach: Perren v.
Lalari, 2010 BCCA 140 at para. 32.

[104]    
Neither doctor opined that the plaintiff’s present employment was likely
to be affected by her current complaints. Dr. Boyle discounted the
prospect entirely, whereas Dr. Badii stated at para. 35 of his report:

I believe it is unlikely that she
will ever experience work disability from the injuries she sustained in the
accident as long as she works in her current capacity. However, if she were to
lose her current position and look for a new job, her employability may be
affected to the presence of chronic pain.

[105]     Nothing in
the evidence suggests that her employment is in jeopardy or that she is considering
changing employers. To the contrary, the plaintiff expressed her job
satisfaction to Dr. Badii, noting she welcomed the additional hours she
has taken on since June 2014. The plaintiff advised Dr. Badii she enjoyed
her work for the social interaction it provided, and that it allowed her to get
out of the house. Nothing in her remarks to him suggests that she saw the
additional hours as a burden.

[106]     Even if
she was to lose her employment for reasons beyond her control, the plaintiff’s job
prospects are not, in my view, limited by her current symptoms. The plaintiff
has and will always pursue employment opportunities in fields similar to that
which she is now engaged. She has demonstrated the capacity to work through her
symptoms, including taking on additional hours in June 2014 and, indeed, when
required, working full time while her coworkers are on holiday. She is seen as
an excellent employee by her employer.

[107]     There is also
nothing in the medical evidence which suggests that the plaintiff is limited to
30 hours, as opposed to 37.5 hours, weekly. Nor is there any certainty that
additional hours are available to the plaintiff.

[108]     In the
result, I make no award for loss of future earning capacity or any award for
the period of June 2014 to date for the additional income suggested as being
available to the plaintiff by working full-time.

Special Damages

[109]     The special
damages claimed are as follows.

[110]     The
defendants concede liability for physiotherapy costs, but say that the
additional physiotherapy in 2014, as well as the costs of the MRI ordered by Dr. Badii,
is not compensable as special costs.

[111]     I agree. The
recent physiotherapy treatments are as a result of a referral from the
plaintiff’s general practitioner for symptoms unrelated to the accident. The
MRI was ordered by an independent medical examiner that was not providing
treatment. The MRI was ordered to pursue an investigation as to whether further
evidence of an underlying injury was available. I am told by the defendants’ counsel
that the MRI was not listed amongst the plaintiff’s documents, nor provided to
the defendants upon its receipt by the plaintiff.

[112]     As such,
with respect to the MRI, I agree it is a matter of costs; not special damages.

[113]     No
receipts were tendered for medications other than the prescription medications
listed in Exhibit A.

[114]     In respect
of special damages, I allow the costs of physiotherapy until May 2011, and the
cost of prescription medicine as set out in Tab 7 of Exhibit A, save for the
prescription filled October 9, 2014. If my math is correct, these damages total
$529.07.

Costs of Future Care

[115]    
The law regarding the costs of future care is succinctly set out in Gignac
v. Insurance Corporation of British Columbia, 2012 BCCA 351, where,
at paras. 29 and 30, Bennett J.A. states:

[29] The purpose of the award for costs of future care is to
restore, as best as possible with a monetary award, the injured person to the
position he would have been in had the accident not occurred.

[30] The award is “based on what
is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff[“]: (Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008
BCCA 420 at para. 41.

[116]     Dr. Boyle
saw no need for future medical intervention. Dr. Badii suggested that the
plaintiff would benefit from ‘access to physiotherapy or acupuncture, 12 sessions
per year moving forward’, but offered no rationale as to why a lifetime of
intermittent physiotherapy would benefit the plaintiff, particularly in view of
her testimony that she felt her last physiotherapy visits in 2011 had worsened,
not improved her condition.

[117]     There is
no evidence before me upon which I conclude that physiotherapy, four years
after the event in question, is therapeutically necessary.

[118]     Hence, I
make no award under this heading.

Loss of Homemaking Capacity

[119]     The
rationale offered by the plaintiff in support of an award under this heading is
the plaintiff’s diminished capacity to perform household chores. The plaintiff
testified that her daughter and husband have taken on some of the chores, although
she concedes she does the majority of them. Specifically, the plaintiff no
longer vacuums, nor does she clean showers or do cleaning that causes her to
raise her arms above her shoulders.

[120]     On the
evidence, the chores performed by the other two occupants of the plaintiff’s
residence are modest, indeed. The adult child cleans her own room and bathroom
and assists with vacuuming; her husband washes the interior showers.
Occasionally, when the plaintiff is at her lowest ebb, either of them may
provide assistance with cooking or preparation of meals.

[121]     The
plaintiff continues to do the majority of the housework in the home in which
she resides with her husband and daughter. The only chore she does not do is
vacuuming. It emerged in the evidence that the plaintiff resides in a rancher
style home, the bulk of which is not vacuumed but cleaned with some type of
steam machine by the plaintiff.

[122]     Accordingly,
I find no basis to award damages for loss of homemaking capacity.

Summary

[123]     In
summary, the plaintiff is awarded the following:

Costs

[124]    
Unless there are offers to settle which affect the matter of costs, the
plaintiff is entitled to her costs of this action at Scale B.

“Harvey J.”