IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151015

Docket: M135074

Registry:
Vancouver

Between:

Melissa
Best

Plaintiff

And

Marcin
Jan Jerzyk

Defendant

Before:
The Honourable Mr. Justice Myers

Reasons for Judgment

I.                
Introduction

[1]      The plaintiff was involved in a motor vehicle
accident on March 20, 2013 and suffered soft tissue injury.  The defendant has
admitted liability.  The main issue in dispute is loss of earning capacity.

II.              
Facts

[2]      Ms. Best is now 35 years old and is single.

[3]      After graduating high school she obtained two
diplomas in graphic design, completing her education in 2004.  She then began
work in the film industry as a graphic compositor.  A compositor compiles live
action footage and animation into one realistic looking image on a computer.  She
worked for various companies, beginning with Frantic Films.

[4]      In November 2010, Ms. Best began work with
Gener8, initially as a compositing lead supervising 15 artists.  In August 2012
she took on the role of stereo compositing supervisor, which involved being
responsible for hiring people, developing work flow and "overall departmental
duties".  In December 2014, because of corporate changes, she began to
supervise three departments in Vancouver plus one in India.  In total she
supervised approximately 65 compositors in Vancouver and 70 in India.

[5]      In 2014, Ms. Best began to teach part time at
the Art Institute of Vancouver.  Later in the year, she moved to teaching part
time at the Vancouver Film School.  Ms. Best described a normal day in
compositing as being from 8:00 a.m. to 6:00 p.m. Monday to Friday.  However,
she said the hours were frequently as high as 80 per week because of completion
deadlines.

[6]      Several days before the trial, Ms. Best left
Gener8 for a full-time teaching position at the Vancouver Film School.  I will
return to the reasons for that after I describe the effects of the accident.

[7]      After the accident, which happened on Ms. Best’s
way to work, the defendant drove Ms. Best to her office a few blocks away. 
She was nauseous and in pain.  She suffered abrasions to her left hand, and
that caused throbbing pain.  Her HR manager told her to go see a doctor.  Her
boyfriend picked her up at work and took her to the hospital.  She said she was
examined and told to go home and take ibuprofen.

[8]      On March 26, 2013, Ms. Best was still in pain.
She did not have a family physician so she went to a walk-in clinic.  The
doctor at the clinic recommended she see a chiropractor and gave her a note to
be off work for a few more days.  He said he did not deal with motor vehicle
accident patients so she did not go back to see him.

[9]      In the weeks following the accident, Ms. Best experienced nausea; pain at the base of her neck
(which she referred to as headaches); headaches (which she referred to as "normal
headaches"); stiffness at the base of her neck, across her shoulders and
shoulder blades; and low back spasms.

[10]    Ms. Best saw a chiropractor who, although
telling her it was a bit early, tried to "adjust" her as well as he
could.

[11]    Her next medical visit was at another walk-in clinic
– View Family Clinic – on April 2, 2013.  She was told not to return to a chiropractor,
but to go to physiotherapy instead.

[12]    Ms. Best returned to her Gener8 work after two
weeks.  She was still stiff but said she was stubborn and tried to work her way
through it.  She said she did not really feel she was well enough to return to
work but the company was in a crunch and being a manager, she felt she had to
return.  She was able to do her work but had to take breaks to stretch, which,
as a supervisor, she was able to do.

[13]    She was also able to return to part-time teaching at
the Vancouver Art Institute after three weeks.  She was provided with a
teaching assistant – which she had not had before – that assisted in setting up
the white board and taking over if she had to leave to stretch.

[14]    Ms. Best continued with non-prescription pain
medication as needed.  She saw three different doctors at the View Family
Clinic and did not go more often because she said she was not offered any
advice other than to do physiotherapy, which she did.  She also did some
massage therapy, which had also been recommended to her by a clinic.

[15]    In the year following the accident, she continued to
experience the symptoms I described above (para. 9) to a greater or lesser
extent.  The headaches would be brought on or exacerbated by stress at work.  At
the time of the trial she is still experiencing pain at the base of her head,
sometimes daily.  This is brought on by stress.  The normal headaches are less
frequent.  The nausea has gone.  The back spasms occur "every once in a
while", as does the shoulder pain.

[16]    Her activities prior to the accident included
volleyball, yoga, dance, zumba, softball, hiking and running.  Of these, the
most frequent one appears to have been volleyball.  She now limits her volleyball
to playing the one position easiest on her back and neck.  Prior to the
accident, the team would rotate positions.  Her hikes are more limited in
difficulty and frequency.  She cannot do zumba.  Her physical relationship with
her ex-boyfriend was affected, although that was not a cause of their break-up.

[17]    She says her condition has plateaued, which makes
her frustrated.  She continues to do physiotherapy and wants to continue to do
this.  This is the subject of a modest claim for future care.

[18]    Returning to Ms. Best’s job situation, as I
said above, a few days before the trial Ms. Best resigned from Gener8 and
took a full-time teaching position at the Vancouver Film School.  She said the
reason she applied for the job was that Gener8 had been bought at the end of 2014
and went from 230 people to 70.  Although her title remained the same, she was
spending more time at the computer doing compositing.  She explained that while
no one told her she could not get up to stretch, she felt she could not do so
because compositors were expected to remain at their computers.  In contrast,
teaching at the film school gave her the freedom of movement.  Her work week now
is approximately 40 hours.

[19]    Ms. Best filed two expert reports.  The first
was by Dr. Shuckett, a rheumatologist and internal medicine specialist.  She
was not cross-examined.  Dr. Shuckett opined that the neck symptoms
derived from a musculoligamentous injury.  She also stated that Ms. Best
has "some features of hypermobility" and that her "long lean
neck structure may have rendered her neck to be more vulnerable to the effects
of an injury from the MVA."

[20]    With respect to Ms. Best’s long-term prognosis,
Dr. Shuckett said:

I believe that she is probably
going to have some sensitivity in the various areas of her injuries in the
future. It is almost 2 years since the subject MVA and she remains symptomatic
and this suggests her symptoms are chronic and ongoing and may be more recalcitrant
toward improving. Still, one would hope for some further improvement over
further time and patients can still improve in the third year after MVA soft
tissue injuries. Only time will tell.

[21]    Ms. Best’s current physiotherapist, Curtis
Wong, provided a report in which he said that Ms. Best still demonstrates
continuing objective signs of her injuries.

III.            
General Damages

[22]    Ms. Best made no effort to exaggerate her
symptoms.  If anything, her attitude, demonstrated by her immediate attempt return
to work, was stoic.  She continues to suffer some pain from the accident.  The
only medical evidence is that her prognosis remains uncertain.

[23]    The defendant pleaded that Ms. Best failed to
mitigate her damage.  She was criticised for not having sought more medical
help.  The defendant bears the onus of proving failure to mitigate.  It has not
come close to this.  The defendant has adduced no evidence that seeking more
medical treatment would have ameliorated Ms. Best’s condition.  She did
not have a family doctor and was given the same generalised advice by various
physicians in a walk-in clinic.  I do not see how she can be faulted for that.

[24]    Aside from the failure to mitigate allegation, the
parties were not far apart in their positions on general damages.  The
following cases submitted by Ms. Best appear to me to be closest to her
situation:

·      
Noon v. Lawlor, 2012 BCSC 545

·      
O’Rourke v. Kenworthy, 2009 BCSC 1277

·      
Zawislak v. Karbovanec, 2012 BCSC 666

·      
Tarzwell v. Ewashina, 2011 BCSC 1464

They provide for damages in the $60,000 range and I award
that to the plaintiff.

IV.           
Past income loss

[25]    Ms. Best did not suffer any loss of income to
the date of the trial and she therefore makes no claim for that.

V.             
Special Damages

[26]    The parties – commendably – have agreed on special
damages of $5,121.10.

VI.           
Loss of Future Earning Capacity

[27]    Ms. Best’s income before and after the
accident was consistently approximately $110,000, and she is being paid the
same at the Vancouver Film School as she was at Gener8.  However, she says that
no employment is certain and there is a risk that she may not be able to
continue to teach.  Because of her inability to sit for long hours, compositing
would no longer be available to her.  Therefore, she argues, she has suffered a
loss of earning capacity.  She argues that damages for loss of capacity should
be assessed at between $55,000 and $110,000.

[28]    In order to succeed in a claim for loss of earning
capacity, a plaintiff must establish that as a result of the accident there is
a substantial possibility of a future event leading to an income loss.  That
possible loss cannot be based on speculation: Perren v. Lalari, 2010
BCCA 140.

[29]    Ms. Best relies on the following from Dr. Shuckett’s
report:

Her sitting tolerance and some of her discomfort limited
sitting for long intervals at the computer may continue to be issues that she
has to pace herself and adjust around.

Work is more difficult,
particularly the prolonged sitting entailed in her job. I feel she will be able
to continue her job, but will continue to need some accommodation with ongoing availability
of "stretch breaks.

[30]    She also submits that her own evidence shows she
cannot sit for long periods without stretching.  She says that this is a
requirement of the job of compositing: people are expected to stay glued to
their computer and she felt compelled to do so after the accident because of
her past experience as a supervisor.

[31]    No other evidence was adduced by her with
respect to this aspect of the claim.

[32]    I can assume, or take judicial notice, that no
job is permanent.  However, even if I am also prepared to accept that there is
a substantial possibility her physical condition will continue indefinitely in
whole or in part, I do not think Ms. Best has established that would
result in an income loss.

[33]    First, there is nothing to show that she would
not be able to find another teaching position at the same salary.

[34]    Second, and more fundamentally, there is no
evidence other than her own that an employer would be less likely to hire her
because she would have to take breaks from her computer work to stretch.  She
did not say that anyone told her to enforce that policy as a supervisor nor did
anyone remonstrate her from taking breaks.  While Ms. Best was a credible
witness, I think her reluctance to take stretch breaks is more a demonstration
of her own wanting to "tough things out" than a requirement of
employment.  A stretch break is a very small job accommodation for an employer
to make and, while my decision does not hinge on this, one that an employer is
probably legally required to provide under the Human Rights Code,
R.S.B.C 1996, c. 210.

VII.          
Cost of Future Care

[35]    Ms. Best claims the cost of physiotherapy
and kinesiology.  She says that both will be needed.

[36]    Physiotherapy was initially recommended by one
or more of the walk-in clinics Ms. Best visited.  She has continued with
physiotherapy on her own initiative for the simple reason that she says it
helps her.

[37]    Dr. Shuckett refers to physiotherapy in her
report:

I believe that it is reasonable for her to continue with
physiotherapy intermittently as long as she feels she is making good gains from
this.

Often physiotherapy, particularly if it is passive, does not have
a role in the years following a MVA.
However, when she depicts to me the type of physiotherapy she is having
and that she goes for sort of a "booster course" of physiotherapy
every once in a while, it sounds like they are actively doing things. As well,
they are actively teaching her strengthening exercises that are beneficial to
her. IMS with someone new, now that that therapist has moved, could be
worthwhile.

I suspect that there will be a
point in the next year or so where she probably will not be attending
physiotherapy but as long as she feels she is making gains which are enabling her
to work full time, I feel I am agreeable with her having some more
physiotherapy for this year. If she
were to stop the physiotherapy, say later this year, she may still need some "top
up" physiotherapy treatments in the future.

Ms. Best says that the "future" could be
indefinite.

[38]    Ms. Best claims $10,000 noting:

Mr. Wong has recommended six months of physiotherapy at
twice per week. The treatment started July 29, 2015, shortly after her return
from India. There are about 14 weeks left to December 29, 2015. Each treatment
is $65, i.e., $130 per week. That is $1,850.

He also recommended six months
(26 weeks) of active rehabilitation with a kinesiologist at the rate of twice
per week. The evidence is that each hour of such treatment at Treloar costs
$75, i.e., $150 per week. That is $3,900.

[39]    The $3,900 and $1,850 have been shown to be
medically necessary and of assistance to Ms. Best.  The kinesiology – on
the evidence of Mr. Wong – may be broadly regarded as a variant of or, for
Ms. Best, a substitute for physiotherapy: if she did not do the
kinesiology she would do physiotherapy.  Insofar as an award beyond that, the
matter becomes less certain, but she should have some compensation for what I
find to be the likely need for physiotherapy.  I award a total of $7,500 for
the cost of future care.  Any discount figure on such a small sum is de
minimis and I therefore will not reduce that to a present value, something
on which I have no calculation from the parties.

VIII.        
Costs

[40]    Unless there are offers to settle that need to
be addressed, the plaintiff is to have her costs at Scale B.  If submissions
are to be made, they should be done in writing and emailed to me through Supreme
Court Scheduling.

"E.M. MYERS, J."