IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151112

Docket: M120213

Registry:
Vancouver

Between:

Marilou Kitan
Castro

Plaintiff

And

Jordan Adam Krause
and Lori Mae Krause

Defendants

– and –

Docket: M146082

Registry: Vancouver

Between:

Marilou Kitan
Castro

Plaintiff

And

Gold Key Sales and
Lease Ltd.

Sabolay Processors
Ltd.

Malsingh Kondolay

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]           
These reasons concern two actions by the plaintiff seeking damages arising
from two motor vehicle accidents.

[2]           
The first motor vehicle accident occurred January 23, 2010 (the “First
Accident”) and the second on September 24, 2012 (the “Second Accident”). The
defendants admit liability for each accident.

[3]           
The actions were consolidated for purposes of trial and accordingly the
issue before the court is an assessment of the plaintiff’s claim for damages.

[4]           
The plaintiff says the injuries she sustained in the First Accident were
aggravated by those she sustained in the Second Accident.

[5]           
I will commence these reasons by describing the nature of the two motor
vehicle accidents.

The First Accident

[6]           
On January 23, 2010, after leaving work at about 4:30 am Ms. Castro was
traveling in a northerly direction on Knight Street. As she approached 57th
Avenue, a vehicle driven by the defendant Jordan Krause and owned by the
defendant Lori Mae Krause, which was being driven south on 57th Avenue, turned
abruptly left in front of and collided with the plaintiff’s vehicle.

[7]           
The collision was a significant one. Ms. Castro initially had difficulty
breathing and was in shock. She was taken by ambulance to Vancouver General
Hospital (“VGH”) and was released later that day.

[8]           
The plaintiff sustained some six fractured ribs, an injury to her head,
bruising to her right arm, right leg and chest, and soft tissue injuries to her
neck and spine. She has since developed chronic pain and depression.

The Second Accident

[9]           
On September 24, 2012, Ms. Castro was driving her motor vehicle
northbound on Slocan Street near Kingsway in Vancouver when her vehicle was
struck by another vehicle which had been struck by a third vehicle, a GMC van,
owned by the defendant Gold Key Sales and Lease Ltd., leased by the defendant
Sabolay Processors Ltd. and driven by the defendant, Malsingh Kondolay.

[10]       
The Second Accident aggravated the injuries suffered by Ms. Castro in
the First Accident, particularly to her neck, shoulder and spine.

The Plaintiff before the Accidents

[11]       
Ms. Castro is 54 years of age. She was born in the Philippines where she
attended school and ultimately obtained a Batchelor of Science degree in
Agriculture. She came to Canada in 1988 and met Mr. Sinn in 1990. They
commenced living together, married in 2001 and now live in Mission B.C.

[12]       
Ms. Castro initially worked as a nanny and housekeeper for a number of
years after coming to Canada. She then worked full- and part-time jobs as a
server at two Denny’s restaurants between 2004 and September 2012. She has also
worked at a private care home and in 1997-98 at two hotels at the front desk.

[13]       
In January 2009, Ms. Castro commenced and subsequently completed an
online course which qualified her to become a health care aide. She received a
diploma in November 2010 with a 98% average in her grades. She did a practicum
which did not require her to do any lifting. She testified she took the diploma
course with a view to finding a position in which she could increase her
income.

[14]       
Ms. Castro’s work history demonstrates she has an enthusiastic and
industrious passion for working. She was well-liked enough by the customers she
served at Denny’s that many still ask to be seated in her section even though
she left that employment over three years ago.

[15]       
Other than time spent at work, Ms. Castro enjoyed spending time with
friends socializing, dancing, playing the guitar and going for long drives with
her husband. Much of her energy was consumed by her work which involved heavy
physical lifting and working late hours

The 1998 Accident

[16]       
In 1998 Ms. Castro was injured in a motor vehicle accident (the “1998
Accident”). She sustained injuries to her right leg and was off work for six
years as a result. At the time she was working at a Ramada Inn as a front desk
agent after having taken a hotel management course. While she was off work, she
developed chronic pain and depression. I will discuss the implications of this later
in these reasons.

[17]       
Ms. Castro eventually recovered from her injuries and depression and
returned to full-time work as a server in 2004 at Denny’s where she worked
without any significant physical difficulties up to the time of the First Accident.

Ms. Castro’s Work History after the First Accident

[18]       
Ms. Castro was off work from Denny’s as a result of the injuries
sustained in the First Accident from January 23, 2010 until June 3, 2010 at
which time she returned to part-time work. She testified she tried to work
through her pain but with difficulty. She was again off work as a result of an
aggravation of her chest pain at work from September 23, 2010 to January 19,
2011 when she started working part-time five to six hours on Friday nights. By
May 2011, she was working two nights per week and by late September 2011, four
nights a week depending on her ability to tolerate her pain.

[19]       
It was difficult for Ms. Castro to lift and carry large trays of food to
customers’ tables. The lifting aggravated the pain in her arms, neck and
shoulders. Her manager accommodated her by assisting her serve customers when
he worked the same shift and by permitting her to use smaller trays.

[20]       
Ms. Castro resigned her employment at Denny’s on September 12, 2012. She
testified she resigned because she was not getting enough hours.

[21]       
The Second Accident occurred September 24, 2012. Ms. Castro saw her
family physician, Dr. Mathias, two days later complaining of aggravated pain in
her left neck, shoulder and left lower back regions.

[22]       
After the Second Accident, Ms. Castro concluded she could not do the
heavy lifting required of a health care aide.

[23]       
Ms. Castro then started looking for alternate work and commenced
employment as a dietary aide with Sodexo at VGH in February 2013. One of her functions
was to deliver food trays to patients on large heavy food carts. She had
flare-ups of pain in her neck, shoulder, rib cage and left arm. She testified
she hid the problem from her supervisor for a while, but ultimately told him she
could not move the carts. She was asked to provide a physician’s note and, in November
and December 2014, Dr. Mathias placed her on restricted work duties. She
then moved food trays using smaller wagons and testified she tried to keep the
pain to herself.

[24]       
Ms. Castro currently works part of her shift on an assembly line
preparing food trays as the trays pass by on a conveyor belt. She then moves to
the dish room where she cleans trays and loads the dishwasher. She testified
the job is fast-paced, hard and continues to exacerbate her pain.

[25]       
Ms. Castro testified she keeps her pain to herself. She does not talk to
co-workers or to her union about her health issues as she is fearful she will
lose her job.

[26]       
Ms. Castro commenced working with Sodexo as an on-call casual employee
working 6.5 to 7.5 hours per day but is now a permanent part-time employee
working a regularly scheduled 5.5 hours per day five days per week. She has
accumulated seniority and intends to apply for a full-time position. She says
several positions have been posted but she has not applied as each position has
required delivery of heavy food trays.

[27]       
Ms. Castro has had difficulty performing many of the tasks of the dietary
aide position because of recurring pain, particularly ongoing chest wall pain,
right elbow and arm pain, left neck and lower back pain.

[28]       
Prior to the First Accident, Ms. Castro enjoyed social activities with
friends including dancing and playing the guitar.

[29]       
After the First Accident, she was unable to do housework, most of which
was done by Mr. Sinn. She attended physiotherapy on the recommendation of Dr. Mathias
and found it assisted her somewhat.

[30]       
Ms. Castro testified that her mood changed after the First Accident and
she lost her self-esteem and became irritable and depressed. She was prescribed
Cipralex, Lorazefam, Venafaxine and Lenoltec among other antidepressants. She
testified the anti-depressant medications prescribed by Dr. Mathias made her
feel “terrible”, describing the effect as putting her whole body to sleep. Dr.
Mathias tried to modify the anti-depressant medication a number of times but
none of the medication she prescribed changed the adverse effect on Ms. Castro.
She did not take the medications which were prescribed for these reasons and
because she felt taking the medication would limit her capacity to work.

[31]       
Commencing in April 2015, she began taking the prescribed medication
(Cymbalta) but only 30 mg a day when she was working and twice that dosage on
her days off. In cross-examination Ms. Castro equated having a mental health
issue with being “crazy”. In June, 2015 she refused to take counselling
suggested by Dr. Mathias saying she didn’t want to talk to others about
her problems but would try gardening and socializing

[32]       
Ms. Castro also takes Tylenol and ibuprofen to assist with pain
management at work. At trial she testified that she now was seeing her friends
again.

[33]       
Ms. Castro has one son and two grandchildren, aged 7 and 8. She
testified that since the First Accident she had not been able to hold or carry
them because it is too painful.

[34]       
She testified she plans to work until she is aged 65 or 67.

Ms. Castro’s Wage History

[35]       
Ms. Castro’s reported annual earnings from employment including reported
tips shown on her income tax returns from 2008 show her income as follows:

2008             $15,364

2009             $17,683

2010             $2,176 plus EI of
$2,280

2011             $5,798

2012             $11,656

2013             $21,126

2014             $26,234

[36]       
In addition, Ms. Castro earned tips during the time she worked at
Denny’s. She testified she earned between $10 and $20 a day in tips. Mr. Rahiman,
the manager of the Denny’s restaurant where Ms. Castro worked, disagreed with
Ms. Castro, testifying a waitress could earn up to $60/day on a “slow day”
and up to $200/day on a busy weekend. As noted, Ms. Castro was an exceptional
server in the eyes of her customers.

Medical Evidence of Plaintiff

Dr. Cathleen Mathias

[37]       
Dr. Mathias has been Ms. Castro’s family physician since 2007 and has
been her primary caregiver since that time including during her recovery from
the injuries sustained in the First Accident.

[38]       
Dr. Mathias prepared two medical legal reports, the first dated November
29, 2014, the second June 28, 2015 and was cross-examined at trial.

[39]       
Dr. Mathias noted that as a result of the First Accident, Ms. Castro
suffered fractures of the fifth, sixth, seventh, eighth and ninth ribs,
shoulder girdle problems, multiple facial, chest wall and right arm contusions
and bruising, low back and right knee strain and more likely than not suffered
a lumbar disc bulge at L5-S1.

[40]       
She described Ms. Castro as having “persistent painful
hypersensitisation” of the chest wall area and that she experiences “recurrent
exacerbation of pain” in her shoulder and chest during activities which stress the
chest wall musculature.

[41]       
Dr. Mathias opined that as a result of her injuries and the disability
caused by the accidents Ms. Castro developed chronic pain and “major
depression”. It was Dr. Mathias’ opinion that Ms. Castro was more
susceptible to developing depression due to the 1998 Accident which she
described as “severe”.

[42]       
Dr. Mathias noted:

Ms. Castro developed major depression that was directly
related to the pain and disability from her accident. Ms. Castro was
susceptible to depression due to a previous episode of depression following a
severe motor vehicle accident in 1998. The risk for a second episode of
depression decreases over time from the initial episode. She had been
depression free for six years in a stable relationship and working at a stable
job. It is possible that she would not have developed a second episode of
depression if she had not suffered her motor vehicle accident. Ms. Castro was
reluctant to take anti-depressants due to the stigma she associated with the
use of anti-depressant medication and due to her beliefs that they were
addictive medicines. It is possible that her depression was prolonged
because she did not take medication. However, she did do the right self
treatment with her own behaviour modification program. She forced herself to go
out; she kept in contact with friends and forced herself to participate in
activities that distracted her. She kept up a walking exercise program. She
self treated her depression in a very appropriate way.

[Emphasis added.]

[43]       
Dr. Mathias described Ms. Castro’s limitations and functional
restrictions as being limited in the use of her right arm and shoulder for
heavy pushing and pulling activities. She was of the view it was more likely
than not that Ms. Castro would continue to have chronic pain over her right
chest wall and shoulder girdle due to scar tissue resulting from her multiple
fractures and a rotator cuff strain and would continue to be limited in
activities that involve pushing, pulling, reaching and that otherwise stressed
the muscles and soft tissues of her right chest wall. Dr. Mathias was also
concerned Ms. Castro was at risk of another episode of depression if she lost
her job. She noted:

Ms. Castro had a previous episode
of major depression from a car accident in 1998. Now that she has suffered two
episodes of major depression she has significantly higher risk to suffer a
third episode.

[44]       
She also noted that the risk of depression would decrease if Ms. Castro
remained depression free for several years.

[45]       
In her second updated report, Dr. Mathias noted she had continued to follow
up with Ms. Castro up to May 12, 2015, having seen her December 3, 2014,
February 6 and 25, March 1, April 22, May 12, June 3 and 29, 2015

[46]       
 Dr. Mathias reiterated her diagnosis of ongoing chronic pain from
multiple rib fractures which was “exacerbated by pushing, pulling, torqueing,
reaching and pulling force through her right arms and shoulder”. She opined the
pain was likely due to scar tissue at the fractured rib sites where the muscle
attaches to the bone. She was of the view it would “be a stretch to say that
this pain will go away” since it was then five years post-accident and that the
pain may get worse as she ages.

[47]       
Dr. Mathias also noted that when she wrote her first report she was not fully
aware of the extent of Ms. Castro’s ongoing depression. On February 25, 2015
she diagnosed Ms. Castro with a major depression disorder and on March 1, 2015
she tested Ms. Castro for depression. Two tests confirmed Ms. Castro was
moderately to severely depressed and the third test confirmed she was severely
depressed.

[48]       
Dr. Mathias testified Ms. Castro told her she didn’t like to come and
see her as “she felt I had little to offer her”. Dr. Mathias commented Ms.
Castro “was afraid” to take anti-depressants and “tried to treat her problems
by distraction” (socializing and working). Ms. Castro hid her symptoms from her
husband. Dr. Mathias deferred to a psychiatrist to answer the question of Ms.
Castro’s prognosis for recovery from her chronic depression.

[49]       
Ms. Castro attended physiotherapy treatments between January 2010 and
February 2015, initially on a more regular basis then less regularly.

[50]       
In cross-examination, Dr. Mathias agreed she would defer to the opinion
of a psychiatrist in the diagnosis of depression. She agreed she made a number
of attempts to get Ms. Castro to take medication to treat her depression but
Ms. Castro told her each had adverse effects on her, making her sleepy, lethargic
and affected her ability to work. Dr. Mathias adjusted the medication trying
Zoloft, Effexor, Ativan, Cipralex, and Cymbalta

[51]       
Dr. Mathias did not recall whether she told Ms. Castro anti-depressant
drugs were only effective if she took them for a long time — at least a year.
She agreed she encouraged Ms. Castro to take her medication every day to
maximize the benefits of the medication. She said more recently the plaintiff
had taken a higher dosage, taking one tablet on workdays and two tablets on her
days off.

[52]       
Dr. Mathias agreed when she prescribed anti-depressant medication she
thought there was a “good chance” Ms. Castro’s physical symptoms would improve.
She thought she had explained the cycle between recurring pain and depression
to the plaintiff and that she had reviewed Dr. Ganesan’s medical legal letter
with her.

[53]       
Dr. Mathias testified Ms. Castro tried to hide her depression from
co-workers, her husband and her friends.

[54]       
Dr. Mathias testified that since March 2015 she had tried “to urge”
Ms. Castro to treat her depression more aggressively and had been told by
Ms. Castro she did not want to talk about it. That “she did not want
others to know”. Dr. Mathias said she thought Ms. Castro had “limited insight”
into her condition. Dr. Mathias also recommended counselling which Ms.
Castro declined.

[55]       
She also testified Ms. Castro was very influenced by her culture and was
concerned about the “stigma” which attached to depression among her friends in
the Filipino community and her co-workers. She described Ms. Castro as having
her “own entrenched ideas” or personal beliefs around depression as a “stigma”.
Hence she tried to carry on working and socializing with friends to the extent
she could — hence ignoring or pretending she was not depressed.

Dr. Soma Ganesan

[56]       
Dr. Ganesan is a psychiatrist who conducted a psychiatric assessment of
Ms. Castro on June 5, 2015.

[57]       
Dr. Ganesan was of the view that Ms. Castro was suffering from
depression with features of anxiety and that she had “pain symptoms” that were
“very significant”. He noted “unfortunately, her depression appears to be aggravated,
associated more now with agitation, anger and self-blame. The more difficulty she
has with pain the more she is depressed”.

[58]       
Dr. Ganesan recommended increased dosage of Cymbalta, the anti-depressant
Ms. Castro was prescribed by Dr. Mathias. He described the 15 to 20 mg dose as
“quite an unusual dose” (that is, it was very low). He testified all
anti-depressant medications had side effects, the degree of which differed for
each patient.

[59]       
He also recommended acupuncture and cognitive behavioural sessions with
a qualified counsellor.

[60]       
Dr. Ganesan concluded his report by noting:

In terms of prognosis, she
appears to have maximized her level of tolerance to about 30 to 32 hours for a
work week unless the pain can be further reduced and in control. The internal
conflict for this lady is that she wants to work more but isn’t capable to do
so because of physical pain, which will affect the progress of treatment for
her depression as the more she feels useless and worthless because of physical
pain, the more depressed she will be.

[61]       
In cross-examination, Dr. Ganesan testified the best treatment for Ms.
Castro would be a course of anti-depressant medication combined with
psychotherapy. He testified that the cost of a trained counsellor would be in
the range of $100 to 115 per hour. He also recommended exercises such as brisk
walking for 45-60 minutes three to five times a week, yoga and acupuncture.

[62]       
Dr. Ganesan agreed the dosage of anti-depressant prescribed by Dr. Mathias
“seemed small” and recommended the dosage should be upped significantly “if she
can tolerate it”. He agreed taking medication three times a week was “not
ideal”. He recommended a higher dosage of 60-120 mg per day for one year in
order for the medication to be effective. He also noted a patient would likely
have negative effects before there were positive effects and she would need to
be monitored regularly by her physician for necessary adjustments.

[63]       
He testified that if a patient could tolerate three to four weeks of higher
dosage the side effects may reduce or disappear. He agreed that when patients
progressed from not taking to irregularly taking the medication to then further
increasing their medication symptoms improved.

[64]       
Dr. Ganesan testified when he tested the plaintiff’s level of depression
she scored at the top end of “moderate to severe”.

[65]       
When it was suggested to him that the major obstacle to the plaintiff’s
recovery was taking her medication daily, Dr. Ganesan responded that Ms. Castro
“really likes (to) work” and that “(she doesn’t like to do) anything that
interferes with her doing work” and that her “work is her life”.

Medical Evidence for Defence

Dr. Charles Telfer

[66]       
Dr. Telfer, an orthopedic surgeon, examined Ms. Castro at the request of
the defendants on November 18, 2014 and prepared a medical legal report of the
same date and was cross-examined at trial. He testified Ms. Castro presented
herself as pleasant, straightforward and co-operative. She told him she was
working, had an active social life, that she was “coping well”, and had learned
to “move on”.

[67]       
Dr. Telfer opined the major injuries suffered by Ms. Castro in the First
Accident were fractured ribs and that she may also have sustained a cervical
strain causing pain to radiate into her left shoulder but that she did not
sustain an injury to her left shoulder. He noted she also has experienced an
episode of depression which he said was beyond his expertise to comment on. He
opined her rib fractures had healed by six months after the injury and there
“is no explanation based on her physical injury for her to have had an extended
time off work beyond that”. It was his opinion “there is no explanation based
on diagnosable pathology that would explain ongoing right chest wall pain which
Mrs. Castro has complained of”. He also noted “the element of depression which
Mrs. Castro developed almost certainly played a significant role in her
recovery and prolonged her period of disability”. Dr. Telfer had not read Dr.
Mathias’ last report.

[68]       
Dr. Telfer saw no reason for ongoing treatment such as physiotherapy as
she had not described any ongoing disability or limitation with regard to her employment.

[69]       
In cross-examination, Dr. Telfer agreed if Ms. Castro said she was still
experiencing pain he accepted she continued to have pain. He agreed an
assessment of whether the plaintiff suffered from chronic pain was outside his
area of expertise.

Non-Medical Witnesses

Mr. Frank Sinn

[70]       
Mr. Sinn, the plaintiff’s husband, testified. He is 54 years old and has
worked as a warehouseman for the Liquor Distribution Branch for the past 15
years.

[71]       
Prior to the First Accident he described the plaintiff as “happy-go-lucky”
and as a hard worker. She loved singing, dancing, going out with her friends
and playing the guitar.

[72]       
He testified she went through a period of about five years after the
1998 Accident when she was unhappy and depressed. He testified she was off work
because of the pain and the medication she was taking “drugged her up” to an
extent she could not concentrate and “was like a zombie”. He said that after
returning to work in 2004 and up to the First Accident, she was back to
enjoying her old activities.

[73]       
He testified that after the First Accident, Ms. Castro was in too much
pain to do any chores about the house for any length of time. She found it
painful to stand walk and had difficulty sleeping. Mr. Sinn said he helped do
most of the household chores. He testified Ms. Castro was frustrated and
“stressed out”. By the time of the trial she was able to do some housework; he
helped when asked to do so and the two shopped together as she could not carry
the groceries. He testified she was scared to drive.

[74]       
Mr. Sinn testified when Ms. Castro took her medication she was “spaced
out like a zombie” and “not herself”. He said her mood was “not happy” and
“very rarely” was there any intimacy in their relationship.

Mr. Rahiman

[75]       
The defendant called Mr. Rahiman, a manager with Denny’s and Ms.
Castro’s former supervisor. He described Ms. Castro as one of the “lead
servers” with a “very good reputation” and one who customers would, and still
do, ask for by name.

[76]       
Mr. Rahiman testified that when Ms. Castro returned to work after the First
Accident she was a bit slow and had difficulty carrying large trays. He
approved her carrying smaller trays and testified that he helped her carry food
to customers virtually every day.

[77]       
In cross-examination, Mr. Rahiman agreed Ms. Castro had a good work
ethic.

Agreed Statement of Facts

[78]       
To the extent I have not set out the facts the parties agreed to the
following in an Agreed Statement of Facts:

1.     The
medical-legal reports of Dr. Mathias dated November 29, 2014 and June 28, 2015
accurately, though not exhaustively, summarise the contents of her clinical
records.

5.     Prior to
the First Accident the clinical records of Dr. Mathias, the plaintiff’s GP
show:

a.     On October
23, 2007 the plaintiff had a tender C spine and trapezius, cervicogenic
headaches and migraines;

b.     On
November 28, 2007 following a twisted right wrist at work she assessed the
plaintiff with tendonitis and recommended she decrease her tray load at work;

c.     On April
22, 2008 the plaintiff reported chest and upper back pain for the last two
days. She reported having constant pain that day at a level of 8/10. Dr.
Mathias recorded tenderness in the front ribs and T spine;

d.     On May 23,
2008 the plaintiff reported bad headaches due to stress at work. Dr. Mathias
conducted more than 20 minutes of counselling on anxiety and work stress;

e.     On March
25, 2009 the plaintiff reported:

                                                   
i.        
Intermittent numbness and tingling in her fingers and toes;

                                                 
ii.        
Issues with lifting trays at work;

                                                
iii.        
An increase in back pain;

f.      The
plaintiff complained of tingling in her hands going up her arm on:

                                                   
i.        
February 25, 2009;

                                                 
ii.        
March 23, 2009;

                                                
iii.        
April 20, 2009;

                                                
iv.        
September 23, 2009; and

                                                 
v.        
November 25, 2009.

6.     After the
First Accident the plaintiff reported carpal tunnel symptoms to Dr. Mathias on:

a.     September
20, 2010;

b.     September
22, 2010;

c.     September
23, 2011;

d.     November
8, 2013; and

e.     September
5, 2014.

7.     During the
September 5, 2014 visit the plaintiff stated this numbness was worse while
doing high speed tasks and was causing tension with co-workers.

8.     The
plaintiff’s statements about medication use to Dr. Mathias include:

a.     On August
17, 2010 that she was taking 1-3 Tylenol #3 a week; and

b.     On March
29, 2011 that she was taking 4 Tylenol #3 a day.

9.     On June
22, 2011 the plaintiff reported to Dr. Mathias that the Effexor prescription
she had been given on May 6, 2011 had improved her anxiety but not her mood.
She had stopped taking it because it made her sleep all day.

10.  The plaintiff’s most recent
prescription anti-inflammatory or pain control medication, besides Cymbalta,
was Dr. Mathias’ May 8, 2013 prescription for 30 Tylenol #3 tablets and 60
600mg Ibuprofen tablets.

11.  The plaintiff’s net wage
loss from The First Accident to the date of trial was $22,696.

12. 
For the purposes of calculating damages for past income loss, and for
this purpose only, the defendants admit that the loss described in para eleven
was caused by their negligence.

Assessment of Damages

Non-pecuniary Damages

[79]       
The plaintiff submits non-pecuniary damages should be awarded in the
amount of $120,000. The plaintiff relies on McCarthy v. Davies, 2014
BCSC 1498; Morlan v. Barrett, 2012 BCCA 66; Neumann v. Eskoy,
2010 BCSC 1275; Verge v. Chan, 2012 BCSC 876; Ashcroft v. Dhaliwal,
2007 BCSC 533; and Marois v. Pelech, 2009 BCCA 286.

[80]       
The defendants submit non-pecuniary damages should be awarded in the
amount of $80,000. The defendant relies on Carreon-Rivera v. Zhang, 2014
BCSC 709; Roth v. Hes, 2015 BCSC 161; and Mandra v. Lu, 2014 BCSC
2199.

[81]       
While the cases cited by counsel are useful in establishing a broad
range for non-pecuniary damages, each case must be assessed individually depending
on the nature of the injury sustained by the plaintiff and on an assessment of
the factors set out in Stapely v. Hejslet, 2006 BCCA 34 at para. 46:

                             
(a)        
the age of the plaintiff; 

                             
(b)        
the nature of the injury; 

                             
(c)        
the severity and duration of pain; 

                             
(d)        
the extent of any resulting disability; 

                             
(e)        
emotional suffering; and 

                              
(f)        
whether there has been an impairment in quality of life;

[82]       
I view Ms. Castro’s injuries as less than those suffered by the
plaintiffs in Verge (who was also considerably younger than Ms. Castro),
Ashcroft and Marois and more similar to those suffered by the
plaintiffs in Carreon-Rivera and Roth but more serious that those
suffered by the plaintiffs in Morlan and Mandra.

[83]       
After reviewing the cases cited by counsel and considering the factors
set out in Stapely, I am of the view the appropriate amount of
non-pecuniary damages is $90,000.

Special Damages

[84]       
The parties agree Ms. Castro’s special damages are $3,149.31.

Net Wage Loss

[85]       
The parties agree Ms. Castro’s net wage loss totals $22,696.

Cost of Future Care

[86]       
An award for the cost of future care requires the court to assess each
item claimed to determine whether there is an evidentiary link between such
claimed cost and a caregiver’s recommended treatment. The court will assess the
proposed treatment for both reasonableness in terms of benefit to the plaintiff
and cost. There must be a real and substantial possibility that the expense
will be incurred or that a contingency has been made that the cost may not be
incurred: Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144; Gignac v. Insurance Corporation of British Columbia, 2012 BCCA
351; and Johal v. Meyede, 2014 BCCA 509.

[87]       
The plaintiff claims $3,000 for psychiatric counselling and $2,000 for
the cost of future medication as recommended by Drs. Mathias and Ganesan.

[88]       
The defendants accept the amount of $5,000 as an appropriate award, but
say that the cost includes the services of a psychologist rather than a
counsellor and the court should take this into account considering Ms. Castro’s
prognosis.

[89]       
I award $5,000 as cost of future care. I have considered Ms. Castro’s
attendance on a psychiatrist in my analysis of loss of earning capacity on the
real and substantial possibility that Ms. Castro will now undertake a program
of medication as recommended by her caregivers.

Ms. Castro’s Mitigation

[90]       
The defendants say the court should reduce Ms. Castro’s award for
non-pecuniary loss by 30% to account for her failure to follow the advice of her
physicians to take anti-depressant medications, attend counselling sessions,
undertake an active exercise program and in hiding certain of her symptoms from
Dr. Mathias. The defendants say that had Ms. Castro followed the advice of
her physicians and addressed her problems earlier, her prognosis would have
been considerably better.

[91]       
The onus is on the defendant to establish that the plaintiff acted
unreasonably in her failure to take a course of treatment recommended by her
medical practitioners and the extent to which her damages would have been
reduced had she acted reasonably: Gregory at para. 56 where Madam
Justice Garson, for the court said:

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 …”.

[92]       
In cases involving a patient’s mental health the test is whether the
plaintiff is capable of making a rational decision regarding their own care: MacLean
v. Budget Rent-A-Car of Edmonton Ltd. et al, 2006 BCSC 1344 where at para. 71
Mr. Justice Cole referred to Janiak v. Ippolito, [1986] 1 S.C.R. 146 at
para. 24:

…It seems to me that the line
must be drawn between those plaintiffs who are capable of making a rational
decision regarding their own care and those who, due to some pre-existing
psychological condition, are not capable of making such a decision.

[93]       
In Middleton v. Morcke and Lee, 2007 BCSC 804, Madam Justice
Stromberg-Stein found the plaintiff had failed to treat her depression and had
not engaged in an exercise regime as recommended by her physicians and reduced
her award for damages by 40%. The plaintiff had testified her reason for not
pursuing group therapy was that “she did not want to be around other depressed
people”. She told her doctor group therapy seemed “too drastic a way to deal
with not being happy all the time” (at para. 48). At para. 49 Stromberg-Stein J
said:

I agree with the defendants’
comment that this is a case of a patient thinking that she knows better than
her health practitioners. In cross-examination when asked why she did not
pursue group therapy and biofeedback, the plaintiff stated “I didn’t have time
to do all that”. This response indicates that the plaintiff’s priority was not
her recovery.

[94]       
In Qiao v. Buckley, 2008 BCSC 1782, Madam Justice Sinclair Prowse
reduced a plaintiff’s damages by 30% for failure to mitigate her loss by not
following the recommendation of her doctors regarding the treatment of her
psychological disorders. In that case, the plaintiff had taken her medications but
had failed to follow a recommendation to take psychological counselling.

[95]       
A case which is closer to, but distinguishable on its facts, from the
present case is Tsalamandris v. MacDonald, 2011 BCSC 1138 (varied on
other grounds 2012 BCCA 239), where Madam Justice Griffin stated at paras. 232
and 235:

[232]  As for medications, the plaintiff’s treating
physicians all agreed that the plaintiff is highly sensitive to medications and
often had side-effects which outweighed the benefit of the medicine. She thus
started and stopped numerous medications in an attempt to find one that would
work. All of these attempts were under medical supervision. None of the
plaintiff’s treating physicians concluded that the plaintiff was acting
inappropriately or refusing sound advice in her decisions with respect to
medications.

[235]  The evidentiary record is
replete with evidence of the plaintiff’s efforts to get better. I find that she
has pursued and persisted in trying to find treatment. I find that she has
followed medical advice to the best of her abilities.

[96]       
The difference between the two cases is that Ms. Castro has refused to
follow Dr. Mathias’ recommendations and had chosen her own remedies — to bury
herself in work and to try to increase her social networking with her friends. This
is how she likely coped with the depression she suffered following the 1998
Accident when she had experienced an episode of significant depression. She had
taken anti-depressant medication which, according to both her and her husband,
had a “zombie”-like effect on her and she stopped taking it. She was able to
come out of that depressive episode and resume an active life. Ms. Castro
experienced a similar effect from the drugs she was prescribed after the First
Accident.

[97]       
The conclusions I draw from the evidence which differentiates this case
from those referred to above are that Dr. Mathias did not recognize the
apparent severity of Ms. Castro’s depression until approximately May 2015. As a
result, while she prescribed anti-depressant medications and sought to adjust
the type and dosage of the medication to reduce the side effects on Ms. Castro,
she did not insist or take a hard line with Ms. Castro about taking the
prescribed medication. In my view, she acquiesced in Ms. Castro‘s self-help
regime. When Ms. Castro advised Dr. Mathias she was going to try to deal
with her symptoms by getting out of the house more and socializing with
friends, Dr. Mathias deferred to Ms. Castro. As she stated in her first
medical legal report, she considered Ms. Castro had done the “right
self-treatment with her own behavior modification program” and had
“self-treated her depression in a very appropriate way”.

[98]       
It was not until late February 2015 Dr. Mathias realized the extent to
which Ms. Castro was depressed. It was at that time Dr. Mathias became
more proactive in pressing Ms. Castro to increase her dosage but even then
the dosage was “surprisingly low” according to Dr. Ganesan. Dr. Mathias did not
recall whether she had told Ms. Castro the symptoms she was experiencing
usually improved in three to six weeks or that the anti-depressant medication
should be taken over a long time — at least for a year. While Dr. Mathias was
undoubtedly responding empathetically to Ms. Castro’s complaints about the
effect of the medication, I cannot conclude on the evidence Ms. Castro
refused to follow her physician’s instructions.

[99]       
Having stated the above, however, it seems to me Ms. Castro must bear
some responsibility for addressing her own wellness. Even had Dr. Mathias been
more direct in advising Ms. Castro to take the medication ultimately the choice
was Ms. Castro’s. Based on the evidentiary record I am of the view Ms. Castro
would not have followed any medical advice which might interfere with her
ability to work. It would be unfair to the defendants to bear the full cost of
a treatable medical condition which goes untreated, particularly after a
specialist had become involved and made recommendations as Dr. Ganesan has. The
evidence is quite clear that had Ms. Castro embarked on a prescribed course of
anti-depressant medication along with counselling her prognosis for improvement
was good. In my view Ms. Castro’s non-pecuniary damages should be reduced
by 20%.

Loss of Future Income or Loss of Future Income-Earning Capacity

[100]     The
plaintiff submits that as a result of the injuries sustained in the motor vehicle
accidents her future earning capacity has been impaired. The plaintiff says she
had planned to work to age 65 or 67.

[101]     The
plaintiff seeks an award of $100,000 as an award under this head of damage.

[102]    
The defendants agree that if the court makes an award under this head of
damage, the basis of such award should be the loss of capital asset approach
rather that an income approach as a mathematical formula would not apply to the
calculation of damages in this case. The defendants say, however, that Ms. Castro
has not established the threshold test of proving there is a “real and
substantial possibility” that future earnings will be less as a result of the
accident.

[103]    
The law under this head of damage was set out in Rosvold v. Dunlop,
2001 BCCA 1 at paras. 8-9, where Huddart J.A. stated:

[8]  The most basic of those principles is that a plaintiff
is entitled to be put into the position he would have been in but for the
accident so far as money can do that. An award for loss of earning capacity is
based on the recognition that a plaintiff’s capacity to earn income is an asset
which has been taken away: Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d)
155 (C.A.). Where a plaintiff’s permanent injury limits him in his capacity to
perform certain activities and consequently impairs his income earning
capacity, he is entitled to compensation. What is being compensated is not lost
projected future earnings but the loss or impairment of earning capacity as a
capital asset. In some cases, projections from past earnings may be a useful
factor to consider in valuing the loss but past earnings are not the only
factor to consider.

[9]  Because damage awards are
made as lump sums, an award for loss of future earning capacity must deal to
some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3
S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks
must all be considered, so long as they are a real and substantial possibility
and not mere speculation. These possibilities are to be given weight according
to the percentage chance they would have happened or will happen.

[104]    
The principle that the loss must be founded in a real and substantial
possibility was reiterated in Perren v. Lalari, 2010 BCCA 140 at para.
32:

[32]  A plaintiff must always prove, as was noted by
Donald J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A.
in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss. If the
plaintiff discharges that burden of proof, then depending upon the facts of the
case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown. The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok. The
latter approach will be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych.

[Emphasis in original.]

See also: Morgan v. Galbraith, 2013 BCCA 305 at para.
53.

[105]     The
defendants say the only evidence supporting a loss in future income is vague
and came from the plaintiff. There was no evidence the plaintiff would or could
have earned more money had she pursued a position as a health care aide or whether
there were health care aide positons available which did not require heavy
lifting and which she could fill in her current physical condition. There was
no evidence Ms. Castro had made any inquiries about such positions.

[106]     The
defendants also say before the accident the plaintiff was working an average of
33.3 hours a week and she is working 30-34 hours per week at her current
position.

[107]     While Ms.
Castro is currently working the same number of hours she worked before the
First Accident, this fact does not mean she would not have taken steps to
improve her earning capacity had she not been involved in the First Accident.

[108]    
I am of the view the plaintiff has established there is a real and
substantial possibility of a loss in income as a result of the accidents. Prior
to the First Accident, Ms. Castro had taken a course with a view to becoming a
health care aide because she wanted to increase her income. As stated above Ms.
Castro is very much motivated by work. Had it not been for the accidents, I
find she would have pursued a career in health care.

[109]    
The capital asset approach involves an assessment of the following
factors:

1.     Has the
plaintiff been rendered less capable overall from earning income from all types
of employment;

2.     Is the
plaintiff less marketable or attractive as an employee to potential employers;

3.     Has the
plaintiff lost the ability to take advantage of all job opportunities which
might otherwise have been open to her, had she not been injured; and

4.    
Is the plaintiff less valuable to herself as a person capable of earning
income in a competitive labour market (Morgan at para. 53).

[110]     At the
time of the First Accident, Ms. Castro was fully able to function in her
capacity as a server with Denny’s working an average of 33.3 hours per week. After
the First Accident, her neck, shoulders and chest wall injuries affected her
ability to work. These same injuries were aggravated in the Second Accident and
have continued to affect Ms. Castro. The injuries have been compounded by
chronic pain and depression from which she continues to suffer. She resisted
taking the medication prescribed by Dr. Mathias because of the effects it had
on her which she felt would interfere with her ability to function at work.

[111]     Notwithstanding
my earlier comments about Ms. Castro not taking the anti-depressant medication
prescribed by Dr. Mathias, I am of the view there is currently a
substantial possibility Ms. Castro will gradually take the enhanced dosage of
medication recommended by her physicians. I base this conclusion on the fact
she is now tolerating more medication than she has taken in the past; she has
relatively recently commenced taking Cymbalta although in a much lower dosage
than Dr. Ganesan would recommend; Drs. Mathias and Ganesan clearly have in mind
what Ms. Castro needs to do to recover from her depression and will undoubtedly
counsel her toward that end; she will have the assistance of psychotherapy to
assist her in her recovery; she has improved somewhat since commencing Cymbalta
(on her second appointment with Dr. Ganesan her ranking on the depression
scale had improved somewhat); she was successful in recovering from her
depression after the 1998 Accident; and she has a very strong work ethic with a
strong desire to continue working.

[112]     I find Ms.
Castro has been rendered less capable overall from earning income from all
types of employment; that she is less marketable or attractive as an employee
to potential employers; that she has lost the ability to take advantage of all
job opportunities which might otherwise have been open to her, had she not been
injured; and she is less valuable to herself as a person capable of earning
income in a competitive labour market.

[113]     The
difficulty in this case is quantifying that capital loss.

[114]     I must
discount what I have said above by the possibility Ms. Castro will not follow
the advice of her physicians and will not increase her medication to a sufficient
level. I discount my award under this head of damage by 25%.

[115]     There was
no evidence adduced from Ms. Castro’s employer, her union or from her regarding
the full- or part-time positions which might be available to her as she
increases her seniority within the union and what income she may have earned from
those opportunities. This lack of evidence may very well be the result of Ms. Castro
not wanting to involve others in her case or spread knowledge of her
incapacities. There is no evidence of what positions may have been available to
Ms. Castro had she pursued a health care aide position and what income may
have been available to her from such a position. The court simply does not know
what opportunities might be available to her in the future. It can be presumed
her present employer has a duty to reasonably accommodate her disabilities
should her work be affected by her health in the future.

[116]     The other
factors to be considered are Ms. Castro’s prognosis and her future
treatment. Clearly Ms. Castro suffers from a chronic pain syndrome and moderate
to severe levels of depression. She suffered a similar condition following her
motor vehicle accident in 1998. She gradually recovered as a result of Ms.
Castro’s “self-treatment” of her condition. However, she remains susceptible to
further depressive episodes in the future. Ms. Castro has been able to work
notwithstanding her medical problems. Anti-depressant medication and
psychological counselling will hopefully improve her prognosis and enable her
to work to retirement. She had back problems prior to the First Accident. Those
problems could reoccur in the future before she retires.

[117]     Ms. Castro
has only 10 to 12 more years of working life before she planned to retire.

[118]     Applying
the capital asset approach, I award Ms. Castro the sum of $50,000 which I base
on a loss of roughly $5000 per year in income for 10 years (to retirement) less
25% to take into account the contingencies referred to above. Accordingly I
award Ms. Castro $37,500 for Loss of Future Income-Earning Capacity.

Summary

[119]     In summary
I award Ms. Castro the following:

“Greyell
J.”