IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151217

Docket: M149230

Registry:
New Westminster

Between:

Samantha Rae Duda

Plaintiff

And

Manmeet Singh
Sekhon, Yellow Cab Company Ltd.

and Hrinderjit
Binning

Defendants

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment

Introduction

[1]            
This claim arises out of two motor vehicle accidents involving the
plaintiff, Samantha Duda. Liability is not in dispute and was admitted by all
defendants.

[2]            
In the first accident, Ms. Duda’s vehicle was stationary at a red light
on West Broadway at Granville Street in Vancouver, B.C. when it was struck from
behind by a taxi driven by the defendant, Manmeet Singh Sekhon.

[3]            
In the second accident, Ms. Duda was riding in the front passenger seat
of her own vehicle, then being driven by her sister, eastbound on 16th Avenue
in Vancouver. Ms. Duda was not driving at that time for safety reasons because
she had taken medication to alleviate pain symptoms persisting from the first
accident. Her vehicle was struck in the passenger door area by a vehicle
emerging from an alley driven by the defendant, Hrinderjit Binning.

[4]            
In relation to both accidents, Ms. Duda claims damages for:

a.       non-pecuniary
loss;

b.       past
loss of income and past loss of capacity;

c.       future
loss of earning capacity;

d.       cost of
future care; and

e.       costs
of the action.

[5]            
Ms. Duda also claimed an amount for special damages, which has been
agreed to by the defendants.

Ms. Duda’s Evidence

[6]            
Ms. Duda was raised in Gibsons, B.C., graduating from Elphinstone
Secondary School when she was 17. She worked through her latter high school
years assisting in her father’s glazing business. After high school she
attended BCIT and graduated in 2011 with qualifications as a medical
radiographer. Following her graduation from BCIT she began working at Burnaby
General Hospital as a medical radiographer. She was 25 years old at the time of
the accidents. She was married shortly after the second accident to Garret
Federeau.

[7]            
The work of a medical radiographer includes: taking x-rays in a lab;
using a portable x-ray machine in emergency rooms for trauma cases; operating
x-ray equipment in operating rooms and performing specialized tasks involving
the installation of peripherally inserted central catheters or "PICC"
lines in patients; as well as performing digestive system fluoroscopy and video
x-rays. A radiographer is required to assist with patient movement and positioning
during the x-ray process. The radiographer must wear a lead apron or skirt to
protect against x-ray damage. The lead garments are heavy and significantly
restrict the movement of the radiographer.

[8]            
In 2012, Ms. Duda began to work occasional shifts at Surrey Memorial
Hospital.

[9]            
She chose to work as a casual employee from the outset of her career as
a radiographer, taking approximately three full shifts per week. During summer
months and in and around December each year, she would seek out and work
additional shifts made available because other radiographers wished to take
holidays. She also volunteered in Pioneer Ministries with the Jehovah’s Witness
church.

[10]        
As a youth and up until the first accident, Ms. Duda participated
aggressively in a number of pick-up sports including road hockey, volleyball
and flag football. She testified that she “checked like a man” playing road
hockey. Living near the ocean in Gibsons, she also enjoyed swimming and
qualified as a scuba diver. Her parents took her for winter vacations at
Manning Park, where she learned to snowboard. As an adult in Vancouver she
would snowboard, particularly on Monday evenings when snowboarding was free on
local mountains. She would usually snowboard for the entire evening with a
short break for dinner.

The First Accident

[11]        
The first accident occurred on May 22, 2012. Ms. Duda was driving a 1999
Acura TL, which she owned. She was stopped at a red light eastbound on West
Broadway at Granville Street. She was stopped for a short time in the middle
lane prior to the collision. There was an open lane to her left and an open
lane to her right. Immediately following the collision she was spoken to by a
man in a vehicle in the left-hand lane who told her the license plate number of
the taxi cab which had struck her from behind.

[12]        
After the stop light turned green, she and the taxi pulled over into the
left curb lane where they exchanged information. Immediately following the
accident, Ms. Duda began to experience pain and stiffness in the left
shoulder girdle region. Following the exchange of information with the taxi
driver, she phoned her parents and I.C.B.C. Dial-A-Claim. She also told the Dial-A-Claim
operator that her left shoulder was bothering her. While Vancouver General
Hospital was located closer to the accident, she attended at Burnaby General
Hospital because she worked there and was more comfortable going there. At the
emergency unit at Burnaby General Hospital, she complained of shoulder pain and
general stiffness. Her shoulders were hurting bilaterally and across the
shoulder blades. X-rays were not taken on that day but were taken later. She
was advised to rest, take Advil, apply ice and take at least three days off of work.

[13]        
The day after the accident, Ms. Duda saw a clinic doctor at the First
Care Medical Clinic on Commercial Drive, located near her home. Ms. Duda reported
that her neck, shoulders, mid-back and low-back were stiff and painful and she could
not bend forward. She continued to attend the clinic on several occasions
following the first accident and prior to the second accident. The clinic
doctor reported that her back muscles were too inflamed to treat with physical
therapy. Ms. Duda was advised to return home, rest, take Advil and apply heat. The
clinic doctor told her to take time off work and, once she was comfortable enough
to receive treatment, to obtain physiotherapy and massage treatments.

[14]        
On May 29, 2012, Ms. Duda began to attend for treatment at Physio Room
Stay Strong, a physiotherapy clinic located at 18th Avenue and Main Street in
Vancouver, which was close to her home. The physiotherapist who treated Ms. Duda
was Jesse Wong. At Exhibit 4, Tab 1, is a summary of records and payments made
for that treatment; there are also photos and the invoice for repairs to Ms.
Duda’s Acura at a cost of $681.

[15]        
After approximately six weeks off of work to allow for some healing
following the first collision, Ms. Duda’s employer, Burnaby General Hospital,
provided a Gradual Return To Work program ("GRTW"); accommodations
were made for her physical disability through the assignment of light duties as
well as a reduction in the number of hours and shifts worked per week.

The Second Accident

[16]        
The second collision occurred on July 31, 2012. Ms. Duda was in a
vehicle being driven by her sister as they were on their way to attend a weekly
Bible meeting. They were heading eastbound on 16th Avenue near Main Street when
a vehicle driven by the defendant, Ms. Binning, came out of the alley and
struck the Ms. Duda’s vehicle on the passenger side. The Acura sustained damage
to the frame post near the driver’s door, and there was also damage in a
dragging pattern down the passenger side of Ms. Duda’s vehicle. The damage to
that vehicle is shown in Exhibit 4, Tab 2, and the cost of repairs was $4,631.49.

[17]        
Areas of complaint which remained unhealed after the first accident were
aggravated in the second accident, and there was a noted worsening of both mid
and low-back pain. An I.C.B.C. CL19 form dated September 25, 2015, recorded
complaints by Ms. Duda of mid and low-back pain extending into the buttocks,
more painful on the left side than on the right side. Ms. Duda’s essential work
functions, including wearing lead aprons and transferring patients, were
causing pain; as were bending and overhead reaching to adjust X-ray equipment.

[18]        
Ms. Duda did not take time off of work after the second collision, but
the GRTW program was extended to permit her to heal from the injuries received
in the second collision. She was given two prescriptions which are referred to
in Exhibit 4, Tab 2, and in addition she obtained over-the-counter medications
for pain, including Robaxacet, which her sister was able to obtain without
charge from her employment.

[19]        
In most years Ms. Duda worked additional shifts in the months of July
and August due to the need to cover vacations for other radiographers, but in
2012 she was unable to do so because she was involved in the GRTW program.

[20]        
At the same time, Ms. Duda also missed on-call shifts where a
radiographer simply has to be available by telephone to be called to attend the
hospital and receives an additional payment for that activity. Further, she was
unable to obtain shifts where she would be paid additional amounts per hour for
the insertion of a PICC line or G-tube in specialty operating rooms. She also
did not receive pay for weekend shifts as those were not included in GRTW
program.

[21]        
By April 2013 Ms. Duda had taken a position and began working at the Children’s
Hospital for two significant reasons: the patients, children, were smaller and lighter
to move; and the Children’s Hospital had mechanical lifts for transferring patients.
She continued working at Burnaby General Hospital and the Children’s Hospital in
Vancouver, which was closer to her home than Surrey Memorial Hospital. As a
result, she was not required to take longer drives to Surrey Memorial Hospital,
which she found uncomfortable due to the stiffness and pain in her back and
shoulders.

[22]        
Ms. Duda maintained a calendar of lost days from May 2012 through to
August 20, 2012, where she was unable to work due to her physical condition. Lost
days reflect lost income. Based on the records she maintained, Ms. Duda estimated
that her total loss of wages for the period from May 23, 2012 through to August
20, 2012, was approximately $5,000 without taking statutory holidays or on-call
dates into account, which would have increased the amount that she lost.

Ms. Duda’s Recovery

[23]        
Ms. Duda continued receiving physiotherapy coupled with massage
treatments for the following year because it made her more comfortable and made
it possible for her to continue working. Had she not received that treatment,
work would have been impossible for her as she became tired and stiff after relatively
brief periods of work. She was also required to do an active exercise program
prescribed by her physiotherapist, which required about 15 or 20 minutes each
day at home in the evening, in addition to a stretching program.

[24]        
As evidenced at Exhibit 4, Tab 1, Page 5, eventually I.C.B.C. refused to
pay for additional physiotherapy and massage treatments.

[25]        
In October 2013, Ms. Duda had a flare-up of symptoms and return of pain
caused by a high workload day. She was receiving intramuscular stimulation
treatments (“IMS”), where a needle is used to insert electrical impulses into
muscles to get them to relax. Ms. Duda found this therapy achieved its goal and
helped her return to work more readily.

[26]        
Unfortunately, from May 2012 to the date of trial, Ms. Duda has not
fully healed and has only achieved about 75% of her pre-accident physical state
and level of fitness. She has had flare-ups of symptoms and return of pain from
time to time, which has not changed since 2013.

[27]        
A physiatrist, Dr. J. Wiebe, saw Ms. Duda on two or three occasions and
advised her to do stretching and build up muscle with an exercise program, which
Ms. Duda continued to perform.

[28]        
Dr. Hirsch gave Ms. Duda instructions to take Pilates classes and work
with a physiotherapist or kinesiologist. She did both of those. She attended 12
kinesiology sessions between June 9, 2014, and November 24, 2014, at a cost of
$567. She participated in 30 Pilates exercise sessions beginning on July 5,
2013, at Exhale Studio at a cost of $353.50. Fifteen of these Pilates sessions
took place after May 13, 2014. Pilates is an active core strengthening
exercise program designed to encourage building musculature. Ms. Duda described
hour long Pilates classes which she took at a rate of at least one per week.
She also performed Pilates exercises at her home after a work day. On June 9,
2014, she had aggravated muscle pain while taking the therapy from the kinesiologist
and therefore discontinued that particular course of treatment. She continues
regularly to do active exercises and Pilates exercises at her own home.

[29]        
Ms. Duda continues to record at least one missed shift per month,
although because of heavy workloads in emergency rooms or orthopedic clinics,
the workload is extremely heavy. If Ms. Duda works a very high demand shift,
her experience since the accidents demonstrates that she will have a hard time
working the following day and will be obliged to call in sick.

[30]        
Ms. Duda has travelled on several occasions since the accidents; twice
to New York and once to Honduras. The headquarters of her church are in New
York City, and she attended there on the first occasion alone and on the second
occasion with her family. She finds travel by aircraft unpleasant due to the limited
movement that is available. She attended in Honduras for a wedding of a friend
and to help with Bible promotion there. While she was in Honduras, she did some
swimming and snorkelling, which she finds therapeutic.

[31]        
Ms. Duda was married on May 22, 2015.

[32]        
Ms. Duda has had to reduce her pre-accident sports activities. She
attended a functional capacity evaluation in June 2015 and a report was filed
in relation thereto, which will be discussed below. The functional evaluation
helped her understand how much the injury had affected her at work, especially
when she needed to use both hands and where she had to reach or bear weight.

[33]        
After she saw Dr. Hirsch, he recommended that she try snowboarding again.
Ms. Duda found that she did not have much endurance and only went snowboarding
once, where she performed a couple of runs rather than the three or four hours
of runs that she would have done previously. She was concerned that if she had
a fall while snowboarding her symptoms of pain and stiffness would be
re-aggravated.

[34]        
Her volunteer work consists of canvassing on behalf of the Jehovah’s
Witness Church; and she has had some involvement in lighter aspects of the
construction of a Kingdom Hall in Surrey and one on Oak Street in Vancouver.
The tasks that she performed at the construction site included helping with
cooking in the kitchen some blocks away, cleaning around the site and tying
rebar together with a number of volunteers, which was then moved by others to locations
where concrete was poured.

[35]        
She described her circumstances following the first collision as
gradually starting to improve but once she was involved in the second accident
both of her shoulders hurt. She had painful shoulders, a headache, and her
sacroiliac was very uncomfortable. As a result of the second accident, her
recovery was much slower and, as noted above, she believes she achieved only a
75% recovery by the end of 2013, which has not changed subsequently.

Expert Evidence

[36]        
Ms. Duda led several expert reports in support of her claim:

·      
James W. Bowler – Collision Investigation Report

·      
Alyssa DeMarco – Injury Biomechanics Report

·      
Dr. G.H. Hirsch – Physiatrist

·      
Jesse Wong – Physiotherapist

·      
Jeff Padvaiskas – Work Capacity Evaluation

[37]        
Each of these individuals were qualified as an expert in the field
indicated, most by consent, and each was cross examined. In no case was the
opinion of the expert materially altered or diminished by cross-examination.

[38]        
The defendants also led an expert report from Dr. John Watterson, an
expert in rheumatology.

James Bowler – Collision Investigation Report

[39]        
Mr. Bowler opined that in the first accident the taxi driven by the
defendant Mr. Sekhon collided with the rear of the vehicle driven by Ms. Duda
and left markings. The taxi left a vertical mark to the right of the rear
license plate, within the license plate recess pocket, and a license plate bolt
imprint was left to the right of the license plate recess pocket; in addition, there
were marks between the bolt imprint and the vertical scuff.

[40]        
Mr. Bowler opined that based on his review of the damage the speed
change in the collision was less than 11 km/h. During cross-examination he also
opined that he would expect no vehicle damage to the Acura at a speed change of
less than 8 km/h. There was some damage to the Acura, as described above.

[41]        
With respect to the second collision, Mr. Bowler described that the
damage to Ms. Duda’s vehicle was centred to the right centre pillar where the
rear of the front door meets the front of the rear door, which indicated in his
opinion that the BMW driven by the defendant struck the side of the Acura
angled to the left at 10 degrees. The contact between the vehicles lasted over
the period that the Acura moved past the BMW. Mr. Bowler opined that the speed
change, in the order of 4 or 5 km/h, was directed primarily leftward but with
an additional “rearward component because the Acura was moving forward when it
was struck on the right side”.

Alyssa DeMarco – Injury Biomechanics Report

[42]        
Ms. DeMarco assumed that the taxi rear-ended the Acura driven by
Ms. Duda, which was stationary at that time. She assumed a speed change of
less than 11 km/h. Ms. Duda was wearing a properly functioning seatbelt
and did not anticipate the collision. Based on the assumptions aforesaid, Ms. DeMarco
opined that Ms. Duda suffered a whiplash injury consistent with collision
exposure: “Based on these data, Ms. Duda’s reported neck, headache, fatigue,
shoulder, low back, mid back/interscapular and extremity symptoms are similar
to those reported by other whiplash patients and therefore generally consistent
with her collision exposures.”

[43]        
Ms. DeMarco also opined that symptoms are more likely to persist longer following
side collisions than following rear-end collisions. Ultimately Ms. DeMarco
concluded that the whiplash related injuries and symptoms reported by Ms. Duda
were consistent with the May 22, 2012, rear-end collision exposure; that Ms.
Duda’s whiplash related injuries and symptoms were consistent with her July 31
side collision exposure; and Ms. Duda’s gender increased the risk of her
whiplash related symptoms and injuries in both her collision exposures.

Dr. G.H. Hirsch – Rehabilitation Medicine Specialist

[44]        
Dr. Hirsch, a rehabilitation medicine specialist, conducted an
examination of Ms. Duda on January 8, 2014. Dr. Hirsch assumed that: (a) Ms.
Duda was physically, emotionally and psychology well prior to the first
accident; (b) was not in the care of a physician or therapist; (c) was also not
taking medication before the first accident; (d) was working as a medical
radiographer at Burnaby General Hospital and Surrey Memorial Hospital without
any limitations or modifications; and (e) was also doing volunteer work as a Jehovah’s
Witness and playing soccer, snowboarding and swimming.

[45]        
Dr. Hirsch included in his examination of Ms. Duda, her history and a review
of her forwarded clinical records. He concluded that Ms. Duda sustained
injuries to her neck, shoulder girdle region, thoracic spine and lumbar spine
as a result of the first motor vehicle accident.

[46]        
The injuries involved were to soft tissue structures such as muscles,
tendons and ligaments. Dr. Hirsch opined that Ms. Duda made a partial
symptomatic recovery by the time of the second motor vehicle accident and
because of lingering axial skeletal symptoms, "she was probably more
susceptible to any superimposed trauma."

[47]        
With respect to the second accident, the doctor opined that Ms. Duda
suffered "additional injuries primarily to her thoracic spine and lumbar
spine, in the second motor vehicle accident, which caused temporary aggravation
of her pre-existing neck pain.”

[48]        
In terms of her neck and shoulder injuries, the doctor opined that Ms.
Duda had made an excellent recovery. As for her mid and low-back symptoms, Ms.
Duda had made a partial symptomatic recovery estimated at 75%: "she
continues to have intermittent interscapular pain and low back pain brought on
or aggravated by activities which excessively biomechanically stress her
spine”. He further opined that “Ms. Duda’s mid-back and low-back pain is
probably mechanical in nature exacerbated by activities that stress or load the
back”; “hence, it is my opinion that the onset and persistence of these
symptoms is causally related to the injuries Ms. Duda incurred to her
thoracic spine and lumbar spine in the two subject motor vehicle
accidents."

[49]        
Dr. Hirsch recommended that Ms. Duda carry out an exercise program
including core truncal strengthening exercises, truncal stretching exercises,
upper and lower body strengthening exercises with a focus on repetition versus
resistance, and an appropriate cardiovascular workout routine with potential
additional input from either a physiotherapist or kinesiologist.

[50]        
At page 7 of his report Dr. Hirsch stated:

it is my opinion that Ms. Duda’s
reported abrupt decline in function and resultant compromised participation in
her pre-May 2012 social, vocational and recreational endeavors in 2012 were
causally related to the injuries she sustained in the two subject motor vehicle
accidents.

He was of the view that she could continue with her current
workload or an occupation with a similar physical demand, and that she might
return to snowboarding.

Jesse Wong – Physiotherapist

[51]        
Ms. Wong was the physiotherapist who treated Ms. Duda from May 29, 2012,
up to and including October 8, 2014, with a total of 92 appointments. Ms. Wong’s
report detailed each of the examinations and treatments Ms. Duda received over
that period. Initially, Ms. Wong accepted a self-report of neck, left shoulder,
mid back/thoracic pain, low back/lumbar pain and right hip pain. Ms. Duda
complained of continuing back and shoulder pain during the treatments by Ms.
Wong. Heavy or continuous days of employment and prolonged sitting were both
reported to cause pain and stiffness. Wearing lead protective clothing in the hospital
or clinic settings was the source of increased back discomfort as reported by
Ms. Duda to Ms. Wong. At the end of her report, Ms. Wong noted that there was
improvement in Ms. Duda’s overall functional strength, endurance and
proprioception and a decrease in overall pain and stiffness. Symptoms of pain
and tightness along Ms. Duda’s cervical and lumbar spines were continuous to
the end of physiotherapy treatment by Ms. Wong, and were exacerbated with
greater physical demand and endurance. Ms. Wong recommended that Ms. Duda’s
continued rehabilitation should include: (a) exercises in overhead positions to
mimic work movements, (b) cuing the pelvic floor and transverse abdominis
muscles activated in moving patients or equipment, (c) remaining low in a
neutral posture, and (d) preventing overuse of upper fiber trapezius by
activating middle and lower trapezius muscles to improve pain response. After
the second motor vehicle accident, Ms. Wong told Ms. Duda to decrease overhead
movements or heavy workloads, if possible. It was also suggested that
suspenders should be worn by Ms. Duda to support the lead clothing worn for
radiation protection.

Jeff Padvaiskas – Work Capacity Evaluation

[52]        
On June 16, 2015, a work capacity evaluation of Ms. Duda was conducted
by Mr. Padvaiskas. After reviewing the facts of the case and the work performed
by Ms. Duda, the work capacity evaluation was conducted over the next six
hours. The evaluation noted that Ms. Duda had difficulty sitting for extended
periods of time; “Ms. Dudais capable of work activity in the sedentary, light
and select entry level medium strength categories” following the Dictionary of
Occupational Titles definitions.

[53]        
Mr. Padvaiskas concluded that Ms. Duda’s current work involves demands
for which she is not well-suited, including non-neutral body positions, prolonged
standing and reaching tasks under load. She had reported that she would
experience pain and fatigue/fogginess with prolonged work efforts, particularly
with increasing work shifts over the course of a week: “her performance during
work capacity testing was consistent to her reported challenges with managing
current part-time activities.”

[54]        
Mr. Padvaiskas concluded that Ms. Duda was capable of working part-time,
but not longer. In other words, she had lost the ability to take up additional
shifts during those periods of the year when additional shifts were readily
available to her and would increase her income. She simply does not have the
ability to challenge working further hours as she had done prior to the motor
vehicle accidents.

Dr. John Watterson – Expert in Rheumatology

[55]        
Counsel for the defendants placed the medical opinion of Dr. Watterson
before the Court. Dr. Watterson is an expert in rheumatology and was accepted
as such by the Court. Dr. Watterson noted that Ms. Duda is currently involved
in a self-directed exercise program. She is focusing upon strengthening,
conditioning and returning to her usual physical activities. This program was
also recommended in the opinion of Dr. Hirsch.

[56]        
During cross-examination, Dr. Watterson was questioned concerning the
contents and conclusions of the work capacity evaluation report filed in this
proceeding. Dr. Watterson agreed that a work capacity evaluation was a
gold standard for patient assessment, which was not usually covered as a
benefit in patient care plans. Ultimately, Dr. Watterson’s evidence did not
suggest any departure from the report prepared by Dr. Hirsch. There was no
dispute that Ms. Duda had not fully recovered and that her recovery had
plateaued at about 75%. Because of the duration of the plateau in recovery, Dr.
Watterson’s prognosis of a significant future improvement was guarded and he
stated that a significant positive future change would be unlikely.

Analysis

The Confrontation Principle

[57]        
The principle from Browne v. Dunn (1893), 6 R. 67 (H.L.) came
under consideration in this case. Ms. Duda testified in her examination-in-chief
that she stopped her vehicle at a red light at the intersection of West
Broadway and Granville Street in the centre lane. She remained stopped at the
red light for a short period of time. She testified that her vehicle was then
struck from the rear by the taxi driven by the defendant Mr. Sekhon. Ms. Duda
was not cross-examined on any of the details of the accident referred to above.
Liability was also admitted.

[58]        
Some days later during the trial, Mr. Sekhon was called as a witness. His
evidence was in direct conflict with that of Ms. Duda. He testified that he was
driving, following her in her vehicle on West Broadway, and that she suddenly
“jammed on her brakes", coming to an abrupt stop facing a yellow traffic
control light on Granville Street.

[59]        
In addition to calling this evidence, which contradicted that given by
Ms. Duda rather completely, the evidence of Mr. Sekhon was repeated in the
written submissions filed on his behalf. Counsel asserted that he did not
intend to challenge the credibility of Ms. Duda but was putting forward the
evidence of Mr. Sekhon to demonstrate the minor nature of the rear-end
collision. The Court cannot draw upon Mr. Sekhon’s evidence without concluding
that the evidence is credible; and in this circumstance, that evidence is
neither credible nor reliable. Counsel did not seem to appreciate that the use
of this contradictory evidence for any purpose would necessitate the Court
weighing the evidence of Ms. Duda against that of Mr. Sekhon. Rather than
repeating the lengthy speeches of Lord Herschel at pp. 70 and 71 or Lord Morris
at p. 79 from the Browne v. Dunn decision it is sufficient to quote R.
v. Henderson, (1999), 134 C.C.C. (3d) 131 at 141 (Ont. C.A.):

this well-known rule stands for
the proposition that if counsel is going to challenge the credibility of a
witness by calling contradictory evidence, the witness must be given a chance
to address the contradictory evidence in cross-examination while he or she is
in the witness box

(Also see R. v. Lyttle, 2004 SCC 5 at para. 65.)

[60]        
In the case at bar, given the admission of liability and the lack of
cross-examination of Ms. Duda on the factual circumstances of the first
accident, Ms. Duda had no notice on the record or elsewhere that this
challenge to her evidence was to be mounted. To consider Mr. Sekhon’s evidence,
concerning the factual details of the accident which he caused, would be
manifestly unfair and an affront to the orderly presentation of evidence.

[61]        
It was agreed that the evidence given by Mr. Sekhon would not be
considered for any purpose by this Court. This Court will proceed in that
fashion, although the evidence of Mr. Sekhon would have received negligible
weight if it were to have been considered.

Discussion of Minor Motor Vehicle Accidents

[62]        
Counsel for the defendants spent considerable time and effort making the
submission that the two accidents did not cause significant motor vehicle
damage. However, it has been clearly established in Canadian law that minimal
motor vehicle damage is not “the yardstick by which to measure the extent of
the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick
v. Mei and another, 2008 BCSC 555 at para. 5:

The Courts have long debunked as myth the suggestion that low
impact can be directly correlated with lack of compensable injury. In Gordon
v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made
the following comments that are still apposite today:

I do not subscribe to the view that
if there is no motor vehicle damage then there is no injury. This is a
philosophy that the Insurance Corporation of British Columbia may follow, but
it has no application in court. It is not a legal principle of which I am aware
and I have never heard it endorsed as a medical principle.

He goes on to point out that the
presence and extent of injuries are determined on the evidence, not with
“extraneous philosophies that some would impose on the judicial process”. In
particular, he noted that there was no evidence to substantiate the defence theory
in the case before him. Similarly, there is no evidence to substantiate the
defence contention that Lubick could not have sustained any injury here because
the vehicle impact was slight.

Position of the Parties

[63]        
Ms. Duda was injured in two motor vehicle accidents which took place on
May 22, 2012, and July 31, 2012. She was not at fault for either accident
and liability has been admitted by both defendants.

[64]        
Ms. Duda claims: non-pecuniary damages of $80,000; loss of past earning
capacity of $20,000; future loss of earning capacity of $75,000; special
damages of $6,545.45; and cost of future care of $1,600, for a total of $183,145.45
plus costs and taxable disbursements.

[65]        
The defendants say that the amounts awarded should be: $37,500 for non-pecuniary
damages; $3,827 for loss of past earning capacity; $0 for future loss of earning
capacity; $6,545.45 for special damages, by agreement; and $1,000 for cost of
future care, for a total of $48,872.45 plus costs and taxable disbursements.

Credibility Assessment

[66]        
Credibility of witnesses involves the consideration of factors
summarized in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d
2012 BCCA 296. Reviewing the factors considered, the evidence of Ms. Duda is
consistent with the probabilities affecting the case as a whole and shown to be
in existence at the time: Faryna v. Chorny, [1952] 2 D.L.R. 354 at 356
(B.C.C.A.).

[67]        
I find Ms. Duda to be entirely credible. She did not seek to exaggerate
and her evidence was presented in a direct manner. She was responsive to
questions, including questions posed in cross-examination. I accept her
evidence with regard to her symptoms, both past and present. There was no
evidence at all of any pre-existing injury or condition. I am satisfied beyond
any doubt that her injuries and ongoing symptoms were caused by the two
accidents in 2012. While the accidents were not significant and the damage to the
vehicles was slight, the evidence points to no other cause of the injuries and
symptoms experienced by Ms. Duda.

[68]        
Ms. Duda was completely off of work for about six weeks following the
first accident and then returned to work under a GRTW, where she worked fewer
hours, fewer days and was assigned lighter work. Because of this, she received
reduced income.

[69]        
She undertook treatments which were recommended by her physicians, in
particular physiotherapy treatment. In addition to the physiotherapy, Ms. Duda
was actively involved in exercise and stretching to promote healing. One of the
features in her case was that she has “joint hyper mobility” which was thought
to be a contributing factor in prolonging her soft tissue symptoms following
the accidents.

[70]        
It was clear on all the evidence that the second accident exacerbated
the unhealed injuries from the first accident and also caused new injuries. The
second accident was not a rear-end collision but was a collision where force was
applied on the left or passenger-side of her vehicle resulting in a lateral flexion-extension
whiplash injury. The restraining effect of a seatbelt is not designed to reduce
lateral movement by a vehicle passenger.

[71]        
Luckily, Ms. Duda was able to change hospitals, leaving the heavier
duties at Surrey Memorial Hospital to take on lighter duties in a closer location
at the Children’s Hospital. The two unique features involved in her decision to
change workplaces were the lighter weight of the patients, being children, and
the availability of mechanical patient lifts.

[72]        
Ms. Duda continued working on a reduced schedule in the sense that she
did not pick up additional shifts during the portions of the year when other
radiographers typically take vacations and she did not take on-call shifts because
she found that her symptoms were aggravated and did not heal quickly. Nowhere
in the medical evidence was there any indication that she had healed beyond the
75% level, with 100% being her pre-accident condition.

[73]        
Based on all the evidence the Court is satisfied that Ms. Duda has lost
the ability to work beyond that 75% recovery plateau. The medical evidence was
consistent that the onset and persistence of her pain symptoms were causally
related to the injuries to her thoracic and lumbar spine that were sustained in
the motor vehicle accidents.

[74]        
In the most recent expert report, prepared by Mr. Padvaiskas, the
employment capacity expert, his opinion was that Ms. Duda was not fully suited
for her current work and that she was only capable of maintaining her current
part-time level of approximately three days a week; any work beyond that which
she had been able to do prior to the accidents would exacerbate symptoms and
require her to take further time off of work.

[75]        
While conducting the employment capacity testing it was noted that she
involuntarily showed signs of pain doing work-related activities including:
sitting, standing, strength activities and loading sustained above shoulder-reaching
and stooping bending positions. This evidence was not challenged.

Past Loss of Income

[76]        
For the period between May 23, 2012, and July 27, 2012, Ms. Duda has
claimed the sum of $5,000. Defence counsel indicated that sum was not the
subject of dispute, but took the position that it should be the entire
post-accident wage loss.

[77]        
In addition, Ms. Duda also claimed that from October 2012 to October
2015, she lost 10 cancellation days in each year for a total of 30 days at $28
per hour plus 12% in lieu of benefits for a total of $6,720; and 12 annual
passes on extra shifts from October 2012 to October 2015 for a total of 36 days
at $28 per hour plus the same 12% in lieu of benefits which totals $8,150.

[78]        
Counsel for Ms. Duda submitted these are conservative estimates of loss and
do not include callouts, statutory holidays, evening shift differentials or on-call
pay differentials, to which the plaintiff would have been entitled.

[79]        
Without making any adjustment for the days not included in the
foregoing, on a simple mathematical basis Ms. Duda would be entitled to just
under $20,000. If the adjustment for the shifts referred to in the foregoing
paragraph were added to the total it would exceed $20,000 by a good measure. Ms.
Duda seeks only $20,000 under this head of damage and the Court is satisfied in
the circumstances of this case that the pre-trial income loss award should be
$20,000.

Special Damages

[80]        
The parties were in agreement on the special damages which are contained
in Exhibit 4. That figure will be awarded: $6,545.45.

Cost of Future Care

[81]        
Ms. Duda claimed a future care allowance of the very modest sum of $1,600,
for IMS treatments at $75 per session and for 10 headache massage sessions at a
total of $600. The defendant said the cost of future care should be limited to
$1,000. Ms. Dudas has put forward a very conservative figure for the cost of
future care which is consistent with the circumstances of this case, and I
award $1,600 for the cost of future care.

Non-Pecuniary Damages

[82]        
With respect to non-pecuniary loss, without repeating the foregoing
description of her pain and suffering, Ms. Duda submits she is entitled to an
award of $80,000 based on four cases cited: Kwong v Leonard, 2012 BCSC
1818; Griffith v. Larsen and others, 2014 BCSC 2256; Blackman v. Dha,
2015 BCSC 698; and Strilec v. Leila, 2015 BCSC 1515. Ms. Duda referred
to these cases to support the assertion that the appropriate quantum of
non-pecuniary damages in this case is $80,000. The cases cited bear
similarities to the case at bar and all involve injuries from motor vehicle
accidents where the injuries did not heal quickly and pain symptoms persisted
for periods of years.

[83]        
With respect to non-pecuniary damages, the defendants accept that
Ms. Duda has suffered some degree of soft tissue injury and this injury has
affected her ability to work and enjoy life for a period of time. The
defendants characterize her ongoing difficulties as, ”some minor lingering effect”.
With respect, that statement is not supported by the medical evidence. Both medical
doctors agreed that a recovery of about 75% was what was achieved and, although
her ongoing treatment and exercise program might alleviate that ongoing pain,
it was unlikely that Ms. Duda’s recovery plateau will change for the
better in the near future.

[84]        
It is certainly not supportable on the evidence in this case for the Court
to accept the suggestion that somehow Ms. Duda’s exercise program is not
sufficient to achieve positive results. All of her evidence indicates she is a
person with a strong character that will not permit herself to remain in a
disabled state could she achieve less disability through exercise. I am
satisfied she is the determined sort that would do everything possible to
improve her circumstances.

[85]        
Defence counsel relied on a number of cases including: Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.); and Edmondson v. Payer, 2012 BCCA
114. Those cases are well-known and reflect the proposition that care should be
taken where there is little or no objective evidence of continual injury and
where complaints of pain persist for long periods extending beyond the normal
and usual recovery timeline.

[86]        
In the case at bar, however, there was significant evidence,
particularly from Ms. Wong and Mr. Padvaiskas, that this plaintiff continues to
suffer particular pain caused by injuries from the two motor vehicle accidents,
which were not completely healed and are aggravated by Ms. Duda’s ongoing work
activities as a medical radiographer.

[87]        
The defendants also referred to: Hunter v. Yuan, 2010 BCSC 1526; Christoffersen
v. Howarth, 2013 BCSC 144; and Nair v. Cindric, 2013 BCSC 2128. Considering
all of those cases, the defendants submit that Ms. Duda’s award should be $37,500
for non-pecuniary damages. No two cases are identical or “on all fours” with
the present case. The case of Hunter is distinguishable as being less
serious than the case at bar, it being noted that within 14 months of the
accident, Ms. Hunter trained for and ran a half-marathon. The case of Christoffersen
involves a single low impact rear-end collision rather than the rear-end
and side collisions in the case at bar. In the case of Nair, the
plaintiff was injured in a low impact rear-end collision but continued to
participate in high school volleyball and community club volleyball to the
extent that, following the accident, she was twice named the most valuable
player on her high school team. Ms. Nair also participated in high level Indian
cultural dancing. It is noteworthy that the court in Nair distinguished
the case of Christoffersen as a case more serious than Nair. None
of these cases compares in terms of the seriousness of the injury to the case
at bar; they are therefore of limited value to the Court in assessing the quantum
of non-pecuniary damages.

[88]        
I find the submissions of Ms. Duda on the issue of non-pecuniary loss
persuasive and consistent with the evidence and the cases she cited. I therefore
find that an award of $80,000 for non-pecuniary damages is justified based on
these facts.

Future Loss of Earning Capacity

[89]        
With respect to loss of income earning capacity, the defendants submit
that the expert opinions do not support any loss of future earning capacity.
However, it is noted that Ms. Duda was symptomatic for at least three years.
Dr. Watterson’s evidence was that her length of symptomatic circumstances
would predict a future with a limited ability to improve beyond the current
partial recovery.

[90]        
Relying on the test set out in Perren v. Lalari, 2010 BCCA 140,
Ms. Duda led evidence that she has lost and will continue to lose work time and
income because of the injuries she sustained in the two accidents. In the past,
Ms. Duda chose to work on a part-time basis but she was able to select shifts
up to full-time hours that were paid at premium rates. She was also able to
sign up for “stand by shifts” and select periods during the year to work extra
days, particularly in the summer months and in December. As a result of the
persistent injuries caused by the accident, which have not fully healed, she
can only work three shifts per week. She has lost the ability to work full-time.
In effect she submits she has lost a significant capital asset, being her
ability to work full-time including shifts at higher rates and in more
advantageous positions. Ms. Duda claims damages of $75,000 for this loss. I
find based on the evidence which I have heard that this submission is supported
by that evidence and has merit.

[91]        
This Court has heard consistent evidence that Ms. Duda continues to
suffer pain and stiffness from two different types of whiplash injuries, which
are exacerbated by heavy workloads and continuous days of work beyond three per
week. She no longer has the ability to work without discomfort for more than
three days per week and has lost the ability to choose to take on additional
shifts of varying kinds with implications for increased pay. Ms. Duda has lost
a capital asset in the loss of that right to choose to perform more work or
higher paid work which she could do before the accidents occurred. This is a
real loss for which she must be compensated.

[92]        
Based on the submissions of Ms. Duda and the evidence of her limited
prospects for complete recovery in the future, I find that the $75,000 claimed
for loss of future capacity is appropriate in the circumstances of this case.

Conclusion

[93]        
Taking into account the evidence in this case as a whole, including the
findings made herein, and after considering all of the cases cited by counsel
and the arguments advanced by counsel, the award of damages in this case will
be as follows:

Non-pecuniary damages                                          $80,000.00

Past loss of income
and past loss of capacity           $20,000.00

Future loss of
earning capacity                                 $75,000.00

Cost of future
care                                                    $1,600.00

Special damages
(agreed) $6,545.45

TOTAL                                                                  $183,145.45

[94]        
Costs of the action will follow the event.

“Ball J.”