IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150610

Docket: M151718

Registry:
New Westminster

Between:

Margaret Diana
Buckle

Plaintiff

And

Brian Raworth

Defendant

Subject
to Rule 15-1

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

[1]           
The plaintiff Margaret Buckle claims damages for injuries she sustained
on July 21, 2012 when she was the front seat passenger in a 1990 Ford Tempo
driven by her husband Leonard Buckle. Mr. Buckle was stopped behind four other
vehicles on 24th Avenue and 163rd Street, in Surrey, waiting for the front
vehicle to make a left hand turn, when the driver behind them failed to stop
and they were “banged from behind”, with a fairly hard jolt. Mr. Buckle’s
vehicle was written off. As liability for the accident is admitted, the only
issue is damages.

background

[2]           
Mrs. Buckle is 63 years old. She and Mr. Buckle have been married for
nearly 28 years. They have three adult children and 11 grandchildren ranging in
age from 3 years old to 24 years old. Mr. Buckle works as a piano tuner. The
couple have lived in the same house in Surrey for the last nine years. Before
the accident, their lives largely centred around their children, grandchildren,
and church.

[3]           
Mrs. Buckle was raised in Winnipeg, left school in grade 8 and started
working at a candy factory making Easter and Christmas baskets. She then worked
at Eaton’s before she married her first husband. At some point she obtained a
certificate from a technical training school in Winnipeg, and worked at an
aboriginal centre.

[4]           
Mrs. Buckle came to British Columbia with her second husband, and worked
planting trees for the forestry service. After she left her second husband she
worked at Evergreen transition house as an intake worker. Her job lasted only a
month and she was laid off. She applied for welfare because she was short of
rent money, but then found work at Expo 86. After that she worked for about
seven years at two different clothing stores, 13 years as an intake worker at
two different transition homes, and then obtained a certificate in life skills
coaching and worked for about three years as a life skills coach for youth.

[5]           
At some point, Mrs. Buckle had throat cancer, and then lung cancer.
Fortunately, she overcame those battles, and in the time leading up to the
accident, she never had problems with her neck, lower back, arms, shoulders,
headaches or migraines.

[6]           
Around 2005, Mrs. Buckle obtained a job at Relate Church. After she
started working at Relate Church, Mrs. Buckle also did cleaning and housework
for Sue Stevens and Judy (Mrs. Buckle could not remember her surname) who she
met through church. She charged Ms. Stevens and Judy $21.25 an hour and was
paid cash. Mrs. Buckle could not remember when she started and stopped working
for Ms. Stevens and Judy. Ms. Stevens moved away and Judy died, but Mrs.
Buckle had stopped working for them by the time of the accident.

[7]           
At the time of the accident Mrs. Buckle worked two days a week at Relate
Church. She did the laundry, vacuuming, cleaned the bathrooms and the kitchen,
set up chairs and large tables for the many activities and events at the
church, and took down the tables and chairs after the events. On Thursdays she
went Costco shopping for the church. Because Mrs. Buckle does not drive, Mr.
Buckle drove her to Costco and helped her with the shopping. Both Mr. and Mrs.
Buckle are church members and did volunteer work for the church.

[8]           
Linda Carlson, the staff manager at Relate Church, testified about Mrs. Buckle’s
employment at the church. She testified that they referred to Mrs. Buckle’s
job as facility care because she carried out numerous duties: “it was kind of
janitorial” and she did “just a variety of miscellaneous things”. The job did
not involve “heavy duty” work, but it was a physical job. She was at the church
when Mrs. Buckle was carrying out her duties and saw that she performed her job
well, she did whatever she was asked to do, she had no physical restrictions, and
she was usually the last one in the kitchen cleaning up after an event.

[9]           
Ms. Carlson testified that towards the end of 2014 Mrs. Buckle came to
see her and asked if she could return to work, but she told her that the church
is not hiring because of a large renovation project. All of the church’s
finances are being devoted to the renovation. Any staff member who has left in
the last few years has not been replaced, and their work has been
redistributed. However, if Mrs. Buckle had not left work after the motor
vehicle accident in July 2012, she would have been kept on by the church. There
are no sedentary duties that Mrs. Buckle could have carried out for the
church.

[10]       
Ms. Carlson recorded on invoices the number of hours Mrs. Buckle worked
on any given date, and gave the invoices to the accounting department so that
Mrs. Buckle would be paid by cheque. Her rate of pay was $9.50 an hour
until June 13, 2012 when it was increased to $10.25 an hour. According to
the invoices, Mrs. Buckle was generally paid for 7.5 hours of work on
Wednesdays and Thursdays, although she worked for three hours on Saturday
January 7, 2012. From January to June 2012, she was paid a total of $3,659.

[11]       
At the time of the accident, Mrs. Buckle had also been working for Dr.
Cook for about three months twice a week. She looked after the trees in his
backyard, trimmed hedges, and planted and replanted flowers. She was paid $30
an hour.

[12]       
It was readily apparent that Mrs. Buckle is not a sophisticated person. She
lives a fairly simple life. She answered the questions that were asked of her
as best as she could, she answered the questions succinctly or with brevity,
and many times, stated that said she did not know the answer and frequently
answered, “I can’t remember, sorry”, even if that answer was not particularly
favourable to her. Mrs. Buckle is not very good with dates, but she does
not guess, and she is not a person who is prone to exaggerate.

[13]       
Before the accident, Mrs. Buckle “loved” gardening. Their house is on
about half an acre lot, and she enjoyed planting bulbs and flowers, and
attending gardening shows. She had hanging planters around the fence and the
garage, and their backyard showcased her love of gardening and was a source of
obvious pride for her. Mrs. Buckle also “loved” fancy cake decorating and
decorated cakes with fondant flowers. She baked and decorated cakes for all
occasions, including of course, her grandchildren’s birthdays. Mrs. Buckle
enjoyed spending time with her children and grandchildren. They went camping, on
various outings, and picnics. Every Sunday after church she enjoyed having a
large number of her family members over for dinner, and during the warmer
months they socialized and dined in their beautiful backyard. Every Sunday Mrs.
Buckle and her husband had at least 10 people over for dinner, and during the
summer months, there were even more guests.

[14]       
Mrs. Buckle has for many years struggled with her weight. At the time of
the accident she weighed 190 pounds. At the time of the trial she weighed 232
pounds. However, before the accident she went to the gym twice a week, walked
regularly with her husband, sometimes twice a day, and swam at the community
centre because her husband also swam there. They also enjoyed cycling together.

[15]       
Mrs. Buckle’s volunteer work at Relate Church included attending two
life groups, and being on the church’s prayer team. She also looked after the
information desk, helped people fill out their tithes and offerings, provided
information to newcomers, provided information on the weekly events at the church,
and welcomed those who attended church.

the accident

[16]       
The day of the accident, Mr. Buckle was driving Mrs. Buckle home after
working at Dr. Cook’s. They were talking and laughing about something when
suddenly and without warning, Mrs. Buckle felt herself being jolted forward and
then restrained by her seatbelt when she was jolted backwards. Mr. Buckle got
out of the car to see what had happened. Mrs. Buckle tried to get out of the
car, but felt like she was unable to. A police officer, who was driving the car
in front of them, came back to their vehicle to check on them. No emergency
vehicles attended, and Mr. and Mrs. Buckle drove home.

MRS. BUCKLE’S SYMPTOMS AND TREATMENT FOLLOWING THE ACCIDENT

[17]       
When they arrived home, Mrs. Buckle felt dizzy and nauseous. Her right
arm extending up to her shoulder area was sore, and her shoulder was really
sore. Mr. Buckle made an appointment for her to see her family doctor, Dr.
Irma Schuurman. Mrs. Buckle was in pain when she woke up the next morning.

[18]       
Dr. Schuurman was not available the following day, so Mrs. Buckle saw
her partner Dr. Hartwig who diagnosed her with soft tissue injuries and advised
her to use Ibuprofen, ice and heat.

[19]       
With a day or two of the accident, Mrs. Buckle had severe migraine
headaches that went down her neck and into her right arm. She describes it
“almost like lighting bolts” that were constantly pulsing. The pain was
excruciating. She also had bruising along her right shoulder from being
restrained by her seatbelt. The bruising lasted about a couple of weeks.

[20]       
Mrs. Buckle returned to see Dr. Schuurman on August 9, 2012. She was
diagnosed with soft tissue injuries to the neck and back bilaterally and muscle
tension headaches. She was advised to use Acetaminophen for pain and Flexeril,
a muscle relaxant, at bed time and as needed.

[21]       
Mrs. Buckle also experienced low back pain following the accident. At
some point the low back pain went away, but she cannot remember when the pain
resolved. According to Dr. Schuurman’s November 16, 2014 medical report, when
Mrs. Buckle saw her on September 21, 2012, her thoracic spine was improving,
however her headaches felt like electrical stabs, they had become worse, her
neck felt stiff and her right arm and shoulder continued to be sore.

[22]       
With respect to her visit on September 21, 2012, Dr. Schuurman states in
her report:

An x-ray of the cervical spine
was ordered and showed narrowing of the disc spaces from C4 to T1 due to degenerative
disc disease. This was especially advanced at C5-T1 with marginal spurs and
moderate encroachment on bilateral interformina. These degenerative changes
would certainly have pre-dated her MVA. However, she did not have the symptoms
of pain in the neck and shoulder before that accident. It is most likely that
the soft tissue injuries to the cervical spine, occurring on the background of
degenerative disc disease resulted in the persistent pain in those areas and
the neuralgia of the left side of the scalp that she now experienced.

[23]       
Mrs. Buckle began physiotherapy on October 9, 2012 and attended
regularly for a total of nine visits in 2012, and four visits in January 2012
with her last visit on January 16, 2013. Mrs. Buckle did not find physiotherapy
helpful in any way.

[24]       
When Mrs. Buckle saw Dr. Schuurman on October 5, 2012 she complained
that the pain in her scalp still felt like electrical pulses surging out from
the epicenter, and the pain was continuous all day every day. The pain in her
shoulder was worse at night. She was prescribed gabapentin.

[25]       
By the end of 2012 Mrs. Buckle’s headaches continued as they had within
a day or two after the accident. She was unable to do a lot of things and kept
the house in darkness most of the time, because she could not tolerate light.
The headaches also made her feel nauseous. She spent a lot of time in bed. She experienced
no improvement in her right arm extending up into her right shoulder area. She
could not do anything that required lifting her right arm. She could not wash
her hair.

[26]       
On February 8, 2013 she was diagnosed with migraine headaches, and with
ongoing pain from soft tissue injuries to her neck and degenerative disc
disease in her cervical pain.

[27]       
Mrs. Buckle was referred to Dr. Mark K. Frobb, who has since retired.
Dr. Frobb was a pain management physician with a special focus on
acceleration/deceleration spinal injuries, or whiplash injuries. Dr. Frobb has
accreditation in medical acupuncture, a therapy used in the treatment of chronic
myofascial pain syndrome. It is agreed that Mrs. Buckle’s treatments at Dr.
Frobb’s office consisted of manual therapy, neural acupuncture, and exercise
sessions with a kinesiologist, who Mrs. Buckle referred to as Kia.

[28]       
Mrs. Buckle testified that within a couple of treatments with Dr. Frobb,
her headaches were “practically gone”.

[29]       
Mrs. Buckle saw Dr. Frobb a total of 19 times between February 19, 2013
and her last visit with Dr. Frobb and Kia was on August 8, 2013. By then her
neck was a lot better although she still had pain at times. She hardly had any
headaches, in her words, she could “function”, and her right shoulder was a
little better.

[30]       
According to Dr. Schuurman’s report, on February 19, 2013 Dr. Frobb
diagnosed Mrs. Buckle as suffering from myofascial pain, and prescribed
acupuncture, massage therapy, and sessions with a kinesiologist.

[31]       
In her report under the dates September 19 and 30, 2013, Dr. Schuurman
states:

September 19
and 30, 2013

An MRI was done on her cervical spine and her right shoulder.
She was found to have multi-level spondylosis throughout the cervical spine,
with disc degeneration and osteophytes noted at several levels. These findings
are considered to a causally linked to the neuralgia type of pain that she
noticed in the scalp.

The MRI of the shoulder showed
moderate to advanced degenerative changes along the glenohumeral joint with
degenerative tearing of the glenoid labrum and subsequent paralabral cyst
formation. Abnormal alignment of the clavicular head with subsequent impingement
of the underlying supraspinatus was also noted.

[32]       
Mrs. Buckle continues to exercise on her own at home. Mr. Buckle installed
a pulley system at home similar to the pulley system Mrs. Buckle used with
Kia, so that she could continue with the recommended exercises at home. She
found the exercises helpful, but they did not improve her right shoulder pain.

[33]       
Dr. Schuurman referred Mrs. Buckle to Dr. Telfer, an orthopaedic surgeon
with a subspecialty in shoulder disease, to assess her right shoulder. It seems
that Mrs. Buckle first saw Dr. Telfer around the end of 2013. On January 21,
2014 Dr. Telfer treated her with a cortisone shot in her right shoulder. She
described the cortisone shot as really painful and she left the hospital crying
because she was in so much pain. She spoke to Dr. Schuurman about a possible
further injection with Dr. Telfer, and she told her that she would not do
it again.

[34]       
Mrs. Buckle testified that when she last saw Dr. Telfer he told her that
he wanted to see her again, but she never heard back from him. She thought she
might need to have Dr. Schuurman’s office refer her to him again, but when she
called Dr. Schuurman’s office they said no appointment had been scheduled,
so she thought “it was done with.”

[35]       
Mrs. Buckle testified that she felt like she was “getting somewhere”
with the exercises that Kia recommended, until she got the cortisone shot. Her
migraine and neck pain returned, her right arm and shoulder pain got worse, and
she started feeling sore in her left arm. She said that ever since she had the
cortisone shot, it felt like “I’m going backwards”.

[36]       
Dr. Danny Goel, an orthopaedic surgeon who conducted an independent
medical examination of Mrs. Buckle on November 21, 2014 at the request of
counsel for the defendant, refers in his report of the same date to Mrs.
Buckle’s cortisone shot, and states:  “Given the inaccuracy of office based
injections, it is possible that this injection did not benefit Mrs. Buckle due
to this reason”. Dr. Goel testified that if the injection was a “muscular
injection”, patients would typically have no pain relief. The injection has to
be inside the shoulder ball and socket joint.

[37]       
Since the accident Mrs. Buckle has been unable to have a restful sleep
because of the pain she describes as excruciating. She cannot sleep on her
right side, she needs to use her left arm to pull herself over, and she has
resorted to sleeping on a recliner in the living room every night.

[38]       
Up until about a month before trial, Mrs. Buckle was taking up to 12
extra strength Tylenol daily. She testified that Dr. Schuurman did not like her
taking that many pills and prescribed two little pills for her to take at bed
time. They help with her sleep and her pain. She also takes in the morning a
pill called Vanquish which her girlfriend brought back from the United States
for her.

[39]       
At present, Mrs. Buckle gets migraine headaches two to three times a
week. She experiences a lot of neck pain, and constant pain in her shoulder,
back muscles, and upper arms. She can no longer go swimming because she cannot
put her arms over her head. She stopped exercising at the gym because she is
unable to lift the weights to put on the machines. She can no longer use the
bicycles in the gym because she has to lean forward and hold onto the handle
bars. If she does that, her arms get tired and she suffers for the rest of the
day.

[40]       
Since the accident Mrs. Buckle has tried working in her garden, but she
is no longer able to plant bulbs, rake, or even thin out some of the plants.
Any kind of gardening work is too painful for her arms and neck. Her once beautiful
garden is now “a mess”.

[41]       
She tried cake decorating a couple of times and found she could no
longer do it. She can bake cakes, but she is unable to decorate them because
she needs to use her arms to roll out the fondant, and use a cake decorating
bag to steadily squeeze out the fondant to create flowers and trim the edges of
the cake. That is now too hard for her arms.

[42]       
It is obvious that Mrs. Buckle’s inability to decorate cakes is a huge
loss for her because it was a very meaningful and creative activity for her. It
gave her great pleasure.

[43]       
Mrs. Buckle testified that shortly before the trial she was with her
three young grandchildren and Avery who is 7, asked her why she did not make gingerbread
cakes at Christmas. She has missed the last two Christmases. She tried to
explain to her grandchildren why she could no longer make the cakes, but she exclaimed,
“they just don’t get it”.

[44]       
Mrs. Buckle was upset and in distress when she testified that she now
misses a lot of her grandchildren’s concerts, she and her husband often no
longer go to their sporting or gymnastic events, they have not gone camping
with their children and grandchildren since the accident, they no longer go on
picnics, and she missed attending Avery’s 7th birthday party and Maddox’s 12th
birthday party. She missed Avery’s birthday party because her arm was so sore
she thought it was best to stay home, and she missed Maddox’s birthday party
because of the pain from a migraine headache. Since the accident Mrs. Buckle
has not had her family over for Sunday dinner, and they no longer have picnics
or barbeques in their backyard.

[45]       
Mrs. Buckle explained that she never knows how she is going to feel, and
she does not want to plan something like Sunday dinner and then turn around and
have to call her children and tell them at the last minute that they cannot
come. She says that they would have to explain to her grandchildren why they
cannot come, and then have to start planning their own meals at the last
minute.

[46]       
Mrs. Buckle is a person who is dependable and reliable and does not want
to let anyone down.

[47]       
Mrs. Buckle no longer volunteers at church for the same reason. She
considers that she is no longer a reliable person who can be counted on to do
what they said they would do. In her words, “it’s not fair for them to rely on
me if I can’t make it there.”

[48]       
Because Mrs. Buckle has difficulty using her arms she no longer does any
housework, and Mr. Buckle does it all. She can no longer make a bed or strip a
bed, especially if the sheets are fitted. She cannot push a vacuum cleaner, she
cannot clean the bathrooms, she cannot iron, she cannot shampoo their two Tzitzu
dogs, and she can no longer prepare meals because she cannot lift any of their
pots or pans which are all cast iron. At most, Mrs. Buckle can put clothes in a
dryer, but she cannot get them out. She needs to use a spaghetti scoop to try
to get clothes out of the dryer. Mr. Buckle puts the dried clothes in a laundry
basket, and Mrs. Buckle will fold the laundry as she sits in a recliner.

[49]       
Mr. Buckle testified that since the accident he does most of the
housework. He does all of the bathroom cleaning, vacuuming, laundry, and most
of the cooking. He estimates that since the accident he spends roughly 12 hours
a week on housework.

[50]       
Three or four weeks after the accident, Mrs. Buckle tried to go back to
work at Relate Church, but she testified that she could not work because it was
“just too painful.” She tried to return once again after that but someone had
to drive her home because she had such a bad headache.

[51]       
Mrs. Buckle never returned to work at Relate Church following the
accident. She testified that she loved working at Relate Church, the people
there are like family to her, and she had no plans to retire at age 65.

[52]       
After the accident, Mr. Buckle did Mrs. Buckle’s work at the church for
a short period, and then the church started paying him for the Thursday runs to
Costco which he continues to do.

[53]       
Mr. Buckle testified that since the accident their social life both
inside and outside the home has been curtailed. He describes their social life
as “varied” because sometimes Mrs. Buckle will have to cancel a social event due
to a headache. Even Mrs. Buckle’s ability to go for a walk has been limited. They
no longer go cycling or swimming together because Mrs. Buckle can no longer
cycle or swim because both activities require her to use her arms. She is
unable to wholly care for herself. Mr. Buckle has to wash her hair, neck and
back, and he dries and curls her hair.

[54]       
But for the accident, Mrs. Buckle had planned to continue doing
gardening work for Dr. Cook at least for the summer of 2012 and into October of
that year. About a year ago, Mrs. Buckle called Dr. Cook’s residence to see if she
could get some records, and learned that Dr. Cook now lives in a rest
home.

[55]       
Before the accident, Mrs. Buckle never suffered from headaches, never
had problems with her shoulder or arms, and was unrestricted in her daily
living activities, and social and physical activities.

medical evidence

[56]       
Dr. Schuurman notes in her report of November 16, 2014 that Mrs. Buckle’s
last visit with her was March 20, 2014, not long after Mrs. Buckle had a
cortisone injection. She further notes that Mrs. Buckle had been treated with a
cortisone injection from Dr. Telfer and felt that it did not help but only
aggravated her pain.

[57]       
In her report Dr. Schuurman concludes:

[Mrs. Buckle] does however, have ongoing and persistent pain
in the right shoulder joint. She has known degenerative changes there that are
consistent with osteoarthritis. She has seen Dr. Telfer, orthopedic surgeon for
her pain and has not had much relief with treatment of analgesics or cortisone
injections. I defer to Dr. Telfer regarding any other suggestions he may have,
however, I believe that trying to maintain joint mobility with the use of
Acetaminophen for pain and stretches for range of motion are all that are
available to her at the present time.

It appears that her symptoms have plateaued and that she has
residual neck and shoulder pain. The degenerative changes noted on the imaging
that she has had done undoubtedly are a factor in her lack of recovery.
However, it is apparent that she did not have pain in these areas prior to the
accident and forces of the accident played a precipitating role in the onset of
her chronic pain.

The prognosis for the future for
her is guarded in particular in relation to her right shoulder dysfunction. She
is very restricted in her range of motion in the shoulder and this has not
improved so far. She may well be left with this restricted range.

[58]       
Dr. Goel was asked by counsel for the defendant to answer in writing specific
questions posed to him. Dr. Goel’s report dated November 21, 2014 states
in part:

5.   Your [Mrs. Buckle’s] diagnosis and prognosis

1)    Right Shoulder. This patient has
right shoulder glenohumeral osteoarthritis. Given the findings on the x-ray as
well as the MRI, this finding pre-existed the litigated accident. Mrs. Buckle
does not have a frozen shoulder (adhesive capsulitis). Mrs. Buckle has
arthritis of her shoulder joint which is limiting her motion. Whether or not
this pathology has any significant contribution to her overall disability
remains to be determined. Please see the recommendations below. It is premature
to comment on prognosis as it relates to the right shoulder as further intervention
may be of benefit.

2)    Cervical Spine and Paratrapezial
Soft Tissue Injury: The history and physical examination does reveal a cervical
spine soft tissue component to Mrs. Buckle’s overall disability. Prognosis is
also premature to comment on as maximum medical improvement has not been
achieved.

6.   Whether
the Plaintiff had any prior or existing problems, which are relevant to her job
duties

There is no suggestion of prior or existing problems
relevant to her job duties. Mrs. Buckle reports no symptoms to her neck or
shoulder prior to the litigated accident.

7.   Whether the Plaintiff complaints have been caused by the
accident

1)    Right Shoulder: It is my opinion
that the glenohumeral arthritis pre-existed the litigated accident. The extent
of the arthritis is unlikely to have occurred in the interval from the injury
to the x-ray as well as the MRI. This is a pre-existing asymptomatic condition.
However, the author would not have expected a significant decrease in Mrs.
Buckle’s symptoms through muscular injections performed by Dr. Frobb. This
suggests a predominant soft tissue component to Mrs. Buckle’s overall
disability.

2)    Cervical Spine and Soft Tissue
Pain: Based on the history as well as the documentation, if it can be assumed
that the history provided by Mrs. Buckle is true and accurate, then it is my
opinion that the neck symptoms described are directly related to the litigated
accident. It is premature to provide a prognosis at this point.

[59]       
Dr. Goel in his report makes the following recommendations with respect
to Mrs. Buckle’s future treatment:

11.    Any recommendations you have with respect to future
treatment

1)   Right Shoulder: Given the patient’s
finding of right shoulder glenohumeral arthritis it would be the author’s
suggestion that Mrs. Buckle undergo an ultrasound-guided glenohumeral injection
of local anaesthetic only. This would be an attempt to anaesthetize the area
which may be contributing to a portion of her symptoms. If following maximal
medical improvement for the soft tissue injury, Mrs. Buckle continues to
describe shoulder pain, she may be a candidate for right shoulder replacement.

2)   Cervical Soft Tissue Pain: It is my
opinion that Mrs. Buckle would benefit from the evaluation and treatment of a
physiatrist. She has a significant soft tissue component to her overall
disability. She reports significant pain relief through the treatments of Dr.
Frobb suggesting the above. Future treatment and maximum medical improvement
from the above may allow the author to provide a prognosis as well as an
assessment on her permanent and/or temporary disability. In addition, it would
provide an assessment of the right shoulder and need for any future intervention.

[60]       
The word “glenohumeral” means the shoulder ball and socket joint. The
arthritis is “the loss of the articular cartilage which lines both the ball and
the socket joint to allow smooth and unrestricted motion”. Osteoarthritis means
arthritis of the bone. Glenohumeral osteoarthritis is an asymptomatic condition
that may become symptomatic. Mrs. Buckle had no problems or symptoms in her
right or left shoulder before the accident.

[61]       
Dr. Goel testified in cross-examination:

Q      — there’s two diagnoses: right shoulder
glenohumeral osteoarthritis, and 2) right shoulder, cervical and paracervical
soft tissue injury. Correct?

A       Correct.

Q      And
as I understand reading through your report, the osteoarthritis itself you do
not relate to the accident, but the right shoulder cervical and paracervical
soft tissue injuries you do relate to the accident, correct?

A       Correct.

Q      Would
it be fair to say that in Ms. Buckle’s case that her restricted range of motion
could be a — or would it be fair to say that Mrs. Buckle’s restricted range of
motion can be a combination of both the arthritis and her soft tissue injuries?

A.      Yes.

Q      Assuming
Ms. Buckle had no history prior to this accident, have any problems with range
of motion or pain in or about her shoulder, and assuming she had this
pre-existing asymptomatic condition of arthritis in her shoulder, a trauma of
an accident, such as in Ms. Buckle’s case, could render that pre-existing
asymptomatic condition symptomatic, could it not?

A       It
could.

Q      And
in fact, it’d be fair to say that that’s what happened in this particular case
with Ms. Buckle?

A       Well,
this is where I think that her primary concern in my impression was that it was
soft tissue related because her examination on page 9 sort of made me suspect
that her examination, although limited with her range of motion, her pain was
more soft tissue related as opposed to a joint related pain.

Q      Certainly,
but it would be fair to say that the accident could have triggered her symptoms
of her osteoarthritic symptoms, assuming that they were asymptomatic before the
accident?

MR. von
ANTAL:    You’re referring to “pain”?

THE
WITNESS:     Yes.

Q      I
take it you would agree with me, based on your report — well, you’ve already
said that you would agree with Dr. [Schuurman], I should say, that the accident
played a precipitating role in Ms. Buckle developing her pain symptoms in and
around her neck and shoulder?

A       Correct.

Q      And
I suppose, to put that in other words, at the time that you examined her in
November 2014, the disability that you observed with respect to Mrs. Buckle,
was largely related to that soft tissue injury, correct?

A       Correct.

Q      And
again, we’re talking about the soft tissue injury to the neck, I believe, the
cervical spine and the shoulder?

A       Correct.

Q      That
being the right shoulder, correct?

A       Yes.

Q      Thank
you. And I presume that it was because of your findings and your diagnosis and
your impression of Mrs. Buckle’s physical condition that you did not recommend
that she go back to her previous job at the church, correct?

A       That
is correct.

Q      And
that’s also consistent with why you actually made further recommendations in
terms of treatment and/or investigations, correct?

A       Yes.

Q      Out
of curiosity, Dr. Goel, why a referral to a physiatrist?

A       They
have a specialty interest in soft tissue related pain, and I believe Dr. Frobb
treated her as such from a soft tissue perspective. And given her the benefit
from that treatment, I think it would be worthwhile for her to seek subsequent
treatment.

Q      You’d
agree with me, Dr. Goel, that as at the time that you examined Mrs. Buckle in
November 2014 you expected disability that you observed to continue into the
future pending the results of any further investigations and treatments,
correct?

A       At
the time, yes.

Q      So
it would be fair to say that at the time that you examined her, you expected
Mrs. Buckle to continue to experience the ongoing symptoms of pain that she was
experiencing, correct?

A       Yes.

Q      And
you also expected her to continue to experience the ongoing limitations in
terms of her range of motion from that point on?

A       Yes.

Q      And
certainly there’s no guarantees in terms of what may come of any future
therapies or investigations, correct?

A       Correct.

Q      It’s
really a question of time will tell?

A       Time
and the correct treatment, I think. Yeah.

Q      But
even with the correct treatment, Dr. Goel, you would agree that it’s impossible
to say what will come of that?

A       Yes.

Q      It
would be fair to say, however, that as at the time that you examined her, any
disability she had at that point is expected to carry on, again, pending
further treatments?

A       Yes.

Q      And
those limitations would include performing heavier tasks, such as heavier
household tasks, correct?

A       Yes.
Well, if she declared those limitations and which I’ve mentioned in point 8,
pushing, pulling and lifting.

Q      So
things such as vacuuming and mopping floors, those are things that you would
expect would have given Mrs. Buckle difficulty as at the time that you had
examined her?

A       Yes.

Q      And
likewise, Dr. Goel, you would agree with me that as at the time that you
examined her, you found her to be disabled from performing heavier tasks
vocationally, I should say?

A       Yes.

RE-EXAMINATION
BY MR. von ANTAL:

Q      Dr.
Goel, you mentioned at page 5 of your report item number 8 that it is your
opinion that Ms. Buckle may attempt light and sedentary duties, so you didn’t
actually not find in your assessment that she was disabled from working, did
you?

A       Not working, but just
the type of work.

damages

1.  Non-pecuniary damages

[62]       
An award for general or non-pecuniary damages is to compensate
Mrs. Buckle for her pain, suffering, loss of enjoyment of life and the
amenities of life. The factors (some overlapping) that the court should
consider when assessing general damages are outlined in Stapley v. Hejslet,
2006 BCCA 34 at para. 46:

(a) age of the plaintiff

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering;

(f) loss or impairment of life;

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

(h) impairment of physical or mental
abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism.

[63]       
Mrs. Buckle contends that an appropriate range for non-pecuniary damages
is between $65,000 and $85,000. She relies on the following cases.

Dent v. Young, [2013] B.C.J. No. 1930: 73 year old
retired plaintiff earned occasional income operating his bobcat. He led an
active life with dancing, motor cycling, motorhome trips, housework, and yard
work. He was the front seat passenger in a vehicle that was rear ended in June
2010; sustained injuries to his neck, shoulder, upper arms and lower back, with
debilitating persistent pain to his legs and arms, and intermittent headaches
for nearly two years. He substantially recovered in October 2012, but had some
ongoing neck, shoulder, arm, back, and leg pains, headaches, and sleep
disturbances at the time of trial in January 2013. Award: $65,000 non-pecuniary
damages; $5,000 loss of housekeeping capacity.

Bevacqua v. Yaworski, [2012] B.C. J. No. 1208: 76 year
retired plaintiff lived alone, self-sufficient with cooking and cleaning. She
enjoyed walking, cooking, sewing, gardening, dancing, and babysitting. In March
2010 she was struck in a pedestrian crosswalk, and sustained significant right
wrist, right foot and ankle fractures. Foot and ankle healed, but plaintiff had
trouble walking, and wrist pain, and her ability to care for herself, cook, and
do housework was impaired. Award:  $85,000 general damages.

Amini v. Khania, [2014] B.C.J. No. 2254: 60 year old
plaintiff, a political refugee, with limited English language skills, worked
delivering newspapers and landscaping. In October 2009 he was driving a
vehicle, T-boned, and sustained grade 2 soft tissue injuries to his neck, upper
back, shoulders, arms, left leg, headaches, and chronic sleep difficulties. He
was totally disabled for three months, and temporarily disabled from playing
soccer and badminton. At the time of trial in March 2014, he was still in
constant pain in his neck, upper back, left shoulder, and headaches. His mood
changed, and he was irritable because of the pain. He was restricted in his ability
to carry out his work. Award: $70,000 non-pecuniary damages; $80,000 loss of
income earning capacity; $10,000 loss of housekeeping capacity.

[64]       
The defendant contends that an appropriate award for non-pecuniary
damages is in the range of $25,000 to $25,000, and relies on the following
authorities:

Weinmuller v. Tait, 2006 BCSC 416: 68 year old widow
rear ended and suffered soft tissue injuries. Her shoulder injury resolved
within a couple of months, her neck injury resolved within a year or so, but
her hip and low back injury likely to give her pain and disability for
foreseeable future.  However, her “…ongoing difficulties are the result of
degenerative changes for the most part, which had begun to become symptomatic
before the accident but were not then debilitating”. Court finding that
plaintiff would have suffered the debilitating effects of her pre-existing condition
by age 75 if the accident had not occurred. Award: $30,000 non-pecuniary
damages.

Loik v. Hannah, 2009 BCSC 1196: the plaintiff was 46
years old at trial in August 2009. She was injured in two automobile accidents
on June 22 and July 5, 2006. She was the mother of two special needs
children and an active athlete who enjoyed kayaking, canoeing, biking, rock
climbing, water and snow skiing, tennis and hiking, as well as playing guitar
and gardening. At the time of trial, she continued to suffer pain in her neck,
spin and lower back, and had difficulty sleeping. She could not sit or stand
comfortably, and her athletic activities were significantly compromised. She
could not sit to kayak, transport a canoe, she could not cycle because it hurt
or neck, but she could rock climb and snow ski on a much reduced scale. It hurt
for her to hold a guitar, and her gardening was limited to pulling weeds. She
could not do any heavy lifting. Award: $25,000 non-pecuniary damages.

Gendron v. Moffat, 2010 BSCS 1231: 58 year old
plaintiff suffered soft tissue injuries to her neck, back, and shoulder in a
motor vehicle accident on April 28, 2008. Court found the plaintiff was
not a credible witness, her back problem resolved by December 2009 and her
remaining injuries substantially resolved by the time of trial in July 2010. As
the plaintiff could do her janitorial work business, it was not credible that
she could not do her housework. Award: $25,000 non-pecuniary damages.

Estable v. New, 2011 BCSC 1556: 56 year old plaintiff in
October 2003 motor vehicle accident and suffered soft tissue injuries of her
cervical and lumbar spine and left shoulder. She also suffered a chest
contusion and the possibility of rib fractures. Her pre-existing conditions
included fibromyalgia, scoliosis and degenerative changes in her neck. Because
of those injuries she can no longer be a performance artist or practise yoga.
Court finding that from date of accident in October 2003 to the date of trial
in May 2011, the plaintiff had improved approximately 50 to 60 percent, but
still suffered from some impairment in her physical abilities, and that her
wrist complaints were unrelated to the accident. Award: $30,000 non-pecuniary
damages.

Nisbet v. Pare, 2007 BCSC 1173: 54 year old plaintiff
in rear-endmotor vehicle accident in August 2004, and suffered soft tissue injuries
to her neck, left arm and shoulders. At the time of the accident, she was not
employed outside the home. By the time of trial in July 2007, she worked with
an autistic child, demonstrated wines at liquor outlets on weekends, and worked
three days a week as a nanny. Court finding that plaintiff lost no time off
work as a result of the accident, during the fall of 2005 her pain was severe
enough to limit her from carrying out her ordinary duties including getting
dressed and undress, she suffered headaches but by the time of trial only
suffered several headaches each moth, she continued to have sleep disturbances
if she lay on her left arm, she had regained the range of motion in her left arm,
her activities were not affected so long as she used her right arm rather than
her left arm, and the pain in her left arm had resolved some 75 to 80 percent,
and may or may not fully resolve. Award: $35,000 non-pecuniary damages.

[65]       
Every case depends on its own unique set of facts, and the defendant
relies on cases where the plaintiffs’ injuries and consequences of the accident
were not as serious as those sustained by Mrs. Buckle.

[66]       
Mrs. Buckle is now 63 years old. She suffered soft tissue injuries to
her neck, right arm and shoulder and low back, and severe migraine headaches, as
a result of the rear-end collision on July 21, 2012. She continues to suffer
neck pain, constant pain in her right upper arm and shoulder, and migraine
headaches two to three times a week. Her headaches had largely resolved after
treatments by Dr. Frobb in the spring of 2013, but, for some unexplained
reason, returned after she received a cortisone shot at the beginning of 2014.
Mrs. Buckle now sleeps in a recliner in the living room because of the
pain in her right arm and shoulder. She no longer engages in most of the
activities that bring enjoyment to her life: she no longer has her children and
grandchildren over for dinner every Sunday, decorates cakes, gardens, volunteers
at church, socializes with friends, shares the activities she used to share
with her husband, including swimming, cycling, and going for long walks.

[67]       
It was obvious to me that not being able to share her life with her
grandchildren as she used to, or want to, is a huge source of emotional pain,
grief, and frustration for Mrs. Buckle.

[68]       
The defendant argues that Mrs. Buckle has failed to mitigate her
damages, by not following up with Dr. Telfer, by not seeing Dr. Frobb and Kia
after August 8, 2013, and by not seeing Dr. Schuurman from March 20, 2014 to
February 17, 2015.

[69]       
Dr. Schuurman testified that a cortisone injection is not a healing
remedy. It is used to control the symptoms and reduce inflammation for a time.
She also testified that it is not necessary for patients to return to her if their
symptoms have plateaued; she felt Mrs. Buckle’s symptoms had plateaued.

[70]       
The defendant relies on Gregory v. Insurance Corporation of British
Columbia, 2011 BCCA 144 where the Court of Appeal set out the test for failure
to mitigate, and stated:

[53] In Chiu v. Chiu, 2002 BCCA 618 at para. 57,
this Court set out the test for failure to mitigate as follows:

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

[56] I would describe the mitigation test as a
subjective/objective test. That is 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. The Turner case, on which the trial judge relies,
uses slightly different language than this Court’s judgment in Chiu:
“there is some likelihood that he or she would have received substantial
benefit from it …”.

[57] In this case the trial judge found as a fact that
the cortisone shots were “not necessarily curative, they reduce the
inflammation… Sometimes the relief is only temporary but sometimes the
injections bring long term benefits”. She did not find that the treatment would
have reduced the symptoms. In addition there is the fact that the plaintiff
reasonably believed the diagnosis was a tear and that the injections would have
no healing effect on a tear.

[58] Regardless of whether the trial judge erred in
finding on the evidence that it was objectively reasonable for the plaintiff to
undergo the injections, I conclude that she erred in her application of the
correct test, as articulated in Chiu. The physicians testified only that
it was a reasonable treatment to try, and it might afford some relief. In my
view such an opinion does not meet the threshold for reducing an award as
described in Chiu.

[underline emphasis in original.]

[71]       
Mrs. Buckle testified that the cortisone shot was so painful that she
did not want to return, and she felt she was going backwards after the
cortisone shot: her headaches returned, her right shoulder became worse, and
her left arm and shoulder started giving her problems. She felt the cortisone
shot made her symptoms worse – not better. Her refusal to return for another
cortisone shot is reasonable in the circumstances. Moreover, Dr. Telfer is a
specialist. If there is to be any follow-up, it must be on Dr. Schurrman’s
recommendation or referral.

[72]       
In my view, the defendant has not proved that Mrs. Buckle acted
unreasonably in not wanting another cortisone injection. As to the second part
of the two part test, in my view, the defendant has failed to establish, the
extent, if any, to which Mrs. Buckle’s would have been reduced if she had
followed up with Dr. Telfer and Dr. Frobb. The evidence also falls short of
demonstrating that there is some likelihood that Mrs. Buckle would have
received substantial benefit from following up with Dr. Telfer, or Dr. Frobb
(who has retired). The defendant also suggests that Mrs. Buckle should be
faulted for not seeing a physiatrist as recommended by Dr. Goel. However,
Dr. Goel was instructed not to discuss his findings with Mrs. Buckle, and neither
Mrs. Buckle nor Dr. Schuurman has been provided with a copy of Dr. Goel’s
report. Dr. Schuurman was never asked whether she would refer Mrs. Buckle
to a physiatrist, and Mrs. Buckle cannot on her own simply make an appointment
to see a physiatrist. Mrs. Buckle did however testify on cross-examination that
she would see a physiatrist if it was recommended to her.

[73]       
In my view, Mrs. Buckle should be referred to a physiatrist for the
reasons outlined by Dr. Goel.

[74]       
I conclude that an appropriate award for non-pecuniary damages is
$65,000.

2.  Past wage loss

[75]       
I do not accept the defendant’s argument that Mrs. Buckle has failed to
prove that she suffered any wage loss as a result of the accident, or that at
most, she should be allowed past wage loss until August 2013 when she stopped
treatment with Dr. Frobb. The evidence does not establish that had she
continued seeing Dr. Frobb, Mrs. Buckle would have been able to return to
work by August 2013.

[76]       
Mrs. Buckle claims past wage loss from Relate Church in the amount of
$20,756.25 based on earning $10.25 an hour, and working on average 15 hours a
week. It has been approximately 138 weeks since the accident to the date of
trial: $10.25 x 15 hours a week = $153.75 x 138 weeks = $21,217.50 (gross
earnings).

[77]       
However, Mrs. Buckle is not paid when she does not work. In July 2013
the church paid Mrs. Buckle’s airfare so that she could visit her sister who
was sick. She testified that she was away for close to a month, and that she
would have visited her sister even if she had been working at Relate Church.
What is not clear is whether Mrs. Buckle would have been away for “close to a
month”, if she was working for the church at the time. Doing the best I can, I
find that Mrs. Buckle is entitled to an award for past wage loss in the amount
of $21,217.50.

3.  Loss of earning capacity

[78]       
The law relating to future wage loss or loss of future earning capacity
is well known: Perren v. Lalari, 2010 BCCA 140, Jurczak v. Mauro,
2013 BCCA 507 at paras. 34 to 37, and Meghji v British Columbia (Ministry of
Transportation and Highways), 2014 BCCA 105. The defendant refers to Larsen
v. Moffett, 2015 BCSC 222 at para. 86 where the court refers to Tsalamandris
v. McLeod, 2012 BCCA 239 which in turn refers to the decision of the trial
judge who summarized the principles from Rosvold v. Dunlop, 2001 BCCA 1,
as follows:

1.     the
assessment of damages is not a precise mathematical calculation but a matter of
judgment;

2.     a
plaintiff is entitled to be put in the position she would have been but for the
accident;

3.     an
award for loss of earning capacity recognizes that the ability to earn income
is an asset and the plaintiff deserves compensation if this asset has been
taken away or impaired;

4.     since
these damages must often be based on a hypothetical, the standard of proof of a
hypothetical is "real and substantial possibility" and not mere
speculation;

5.     the
court must consider the real and substantial possibilities, and give weight to
them according to the percentage chance they would have happened or will
happen;

6.     one
starting approach to valuation may be to compare the likely future of the
plaintiff had the accident not happened, and the likely future of the plaintiff
after the accident has happened, and to consider the present value of the
difference between the amounts earned under these two scenarios. (I note that
in using the word "likely", the Court on this point was meaning what
hypothetical was a real and substantial possibility);

7.     however, the overall fairness
and reasonableness of the award must be considered, taking into account all of
the evidence.

[79]       
Mrs. Buckle’s earning capacity is a capital asset. The court must
consider how long she would have worked, and account for both positive and negative
contingencies. Mrs. Buckle tendered no economic evidence quantifying her claim,
but perhaps it is not necessary in view of the fact this trial is brought
pursuant to Rule 15-1, the amount of her claim, and the object of the Rules
which are to secure the just, speedy and inexpensive determination of the
proceeding on its merits.

[80]       
Mrs. Buckle contends that she is still disabled from performing her
duties at Relate Church, she would have continued working there if the accident
had not occurred, and that she would have continued working to age 67, or a
further 196 weeks of work for a claim of total loss of earning capacity claim
of $30,135 (196 weeks x $153.75/week).

[81]       
The defendant argues that Mrs. Buckle has failed to produce her T-4
documents which may disclose that she has worked since the accident. However,
it was clear in cross-examination that Mrs. Buckle has not filed a tax return
since the accident, and the inference I draw from the questions and her answers
relating to her T-4 slips from Relate Church, is that she was never asked prior
to trial to produce those documents. Additionally, Mrs. Buckle was never asked
on cross-examination whether she has worked elsewhere since the accident.

[82]       
More to the point: the evidence does not establish that Mrs. Buckle is
totally disabled. Dr. Schuurman testified that she is unable to do physical
work, such as housekeeping work. Dr. Goel testified that she has an inability
to perform pushing, pulling or lifting movements, but that she “may attempt
light and sedentary duties”. It means that Mrs. Buckle is under an obligation
to seek work that she is capable of doing given her current restrictions. I
also recognize that Mrs. Buckle has limited education, work experience, and her
headaches prevent her from carrying out even daily living activities. Although
Dr. Goel has recommended that she see a physiatrist to deal with the
“significant soft tissue component” of her overall disability, I cannot
speculate whether her disability is permanent or temporary. However, Mrs.
Buckle seeks damages for loss of future earnings or loss of earning capacity
for less than four years, and at minimum wages for working roughly two days a
week. Throughout that time, she may take unpaid time off. Doing the best I can,
I award her the sum of $22,000 for loss of earning capacity.

4.  Loss of housekeeping capacity

[83]       
The law relating to loss of homemaking capacity is set out in O’Connell
v. Yung, 2012 BCCA 57 at paras. 59-68. What is being compensated is the
loss of homemaking capacity, and it does not matter that the work is being performed
by Mr. Buckle because of the accident. The evidence establishes that Mrs.
Buckle can no longer cook because she cannot lift the pots and pans, she can no
longer do housework or yard work, and she can no longer shampoo the dogs.

[84]       
Mrs. Buckle has not hired a house cleaner. She testified that they
cannot afford it. However, she claims the loss of housekeeping at $21.25 an
hour or what she charged her clients. On the basis of Mr. Buckle’s evidence
that he spends an extra 12 hours a week or 1.7 hours a day on housework, this
works out to $34,425 for the 135 weeks from the date of the accident to the
date of trial, and going forward, assuming Mrs. Buckle remains disabled from
carrying out housework to age 65, a further 92 weeks or $23,460.

[85]       
Mrs. Buckle claims loss of housekeeping capacity in the range of $20,000
to $30,000. Mrs. Buckle is 63 years old. She will be 65 in less than two
years; it is impossible to say what her prognosis will be, even if she sees a
physiatrist and follows his or her recommended course of treatment. I consider
an award of $10,000 for loss of housekeeping capacity to be appropriate.

5.  Future care costs

[86]       
In O’Connell v. Yung, 2012 BCCA 57 at paras. 55 to 56:

[55]  The law is settled as to the appropriate
approach to be taken in assessing future care costs. In Krangle (Guardian ad
litem of) v. Brisco, 2002 SCC 9 at paras. 21–22, [2002] 1 S.C.R. 205,
referred to by the trial judge, the Court articulated the test:

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

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

[Underline emphasis in original.]

[56]  Further, as Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 27, makes clear, “[a] future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation”.

[87]       
What is in Mrs. Buckle’s best interest is that she return to therapies
she had previously undertaken with Dr. Frobb because they provided her with
some relief. As I have indicated earlier, Dr. Frobb has since retired, but
there is no doubt in my mind, that having the report of Dr. Goel, and these
reasons for judgment, Mrs. Buckle will make reasonable efforts to find a
physician who carries out similar therapies. I am also confident she will do
what is necessary so that she can be referred to a physiatrist who can deal
with her soft tissue injuries.

[88]       
Dr. Goel was unable to provide an estimate of the number of treatments
that would be required with a physician who provides treatments similar to Dr.
Frobb. The cost of her previous treatments with Dr. Frobb and the kinesiologist
was approximately $2,400. I find that amount to be reasonable, and award $2,400
for future care costs.

6.  Special damages

[89]       
Special damages are agreed in the amount of $2,660 for the following:

1.    $260 for physiotherapy, and

2.    $2,400 for treatments with
Dr. Frobb.

Summary

[90]       
Mrs. Buckle is awarded the following damages:

Costs

[91]       
Pursuant to Rule 15-1(15)(c), Mrs. Buckle is entitled to $11,000 for
costs.

“Loo J.”

_______________________________

The Honourable Madam Justice Loo