IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Pelkinen v. Unrau, |
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2008 BCSC 375 |
Date: 20080328
Docket: M061041
Registry: Vancouver
Between:
Ella Jessie Pelkinen
Plaintiff
And
Gary Unrau and McRae’s Septic Tank Services (Fraser Valley)
Defendants
Before: The Honourable Madam Justice Bruce
Reasons for Judgment
| Counsel for the Plaintiff |
L. Trach |
| Counsel for the Defendants |
I. D. McKinnon |
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Date and Place of Trial/Hearing: |
November 22 and 23, 2007 and |
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Vancouver, B.C. |
INTRODUCTION
[1] On the morning of July 5, 2004, Ms. Pelkinen, a passenger in a 2002 Saturn, was struck from the rear by a tractor-trailer driven by Mr. Unrau. The accident occurred in Aldergrove when the driver of the Saturn was stopped at a red light. The impact was sufficient to damage the Saturn beyond repair and the driver was paid $10,870 in compensation. Mr. Unrau’s tractor-trailer, which weighed 25,950 kilograms, sustained only minor damage.
[2] The force of the impact broke the back of the front passenger seat and threw Ms. Pelkinen from the front passenger seat to a prone position on the rear seat of the Saturn. Although Ms. Pelkinen testified she was unconscious for one or two minutes after the collision, the hospital records appear to contradict her evidence in this regard. Ms. Pelkinen had to be helped out of the vehicle by paramedics and was taken to the Langley Memorial Hospital. She was discharged the same day.
[3] At the time of the collision Ms. Pelkinen had gone back to school with an educational loan from the provincial government. She had been out of the workforce as a full-time mother for many years and felt she needed to take some courses before re-entering the labour market. Her return to work was also necessary because she had been separated from her husband since 2000 and was living off social assistance and child support payments.
[4] Ms. Pelkinen enrolled in a pharmacy medical assistant program, a medical office assistant course, and a course leading to a long term care aid certificate. Before the accident Ms. Pelkinen had done some house cleaning work and had worked in a drycleaners’. Her income between 2000 and 2003 never exceeded $8,000 per year and on average was about $4,000, including social assistance payments. After the accident Ms. Pelkinen missed over 100 days of class and had to postpone completion of both the academic and the practicum portions of the three courses.
[5] Neither Mr. Unrau nor the corporate defendant, as the registered owner of the tractor-trailer, disputes liability.
[6] The issues in dispute are:
(a) the extent to which the plaintiff suffered personal injuries as a result of the accident as opposed to other intervening causes;
(b) the quantum of non-pecuniary damages and special damages; and
(c) whether Ms. Pelkinen is entitled to damages for loss of earning capacity (past and future) and damages for future care.
EVIDENCE OF THE PERSONAL INJURIES SUFFERED BY THE PLAINTIFF
A. Soft Tissue Injuries
[7] Ms. Pelkinen testified that her immediate symptoms were headache, pain in the left side of the neck, light headedness, and shoulder pain. The emergency room records from Langley Memorial hospital indicate that Ms. Pelkinen’s primary complaint was pain in her left shoulder radiating down from the base of her neck and across the shoulder blades. X-rays of the cervical and lumbar spine and the chest showed no fractures or soft tissue swelling.
[8] The day after the accident Ms. Pelkinen went to see her family physician, Dr. Ciavarella, complaining of right and left arm pain, posterior and anterior, pain between the shoulder blades and at the base of the head and neck, lower abdominal pain, and poor sleep secondary to pain. After a physical examination, Dr. Ciavarella diagnosed Ms. Pelkinen with a seatbelt compression injury affecting the right shoulder, sternum, rib cage and lower abdomen and myofascial sprain injuries affecting the interscapular muscle group, right and left trapesius muscles and the posterior cervical spine. She was advised to rest and apply ice to the affected areas for two days, to take Vioxx and Flexeril for pain and muscle spasms, and to apply a topical anti-inflammatory and pain lotion (Pennsaid). On a return visit two days later, Robaxacet was substituted for the Flexeril.
[9] On July 12, 2004, Dr. Ciavarella recommended physiotherapy and Ms. Pelkinen attended the Aldergrove Physiotherapy clinic until ICBC refused to reimburse the cost of the sessions. It appears from the physiotherapy records that Ms. Pelkinen had about 17 treatments between July 13 and August 31, 2004. The physiotherapist’s records also indicate her complaints included severe headaches, cervical strain, and shoulder pain.
[10] During August 2004, Ms. Pelkinen saw Dr. Ciavarella on several occasions for persistent posterior head and neck pain. Because there was only some improvement with the current treatment program, Dr. Ciavarella referred Ms. Pelkinen to Dr. Chu, a specialist in Physical Medicine and Rehabilitation. The first appointment with Dr. Chu was scheduled for January 13, 2005. In the meantime Ms. Pelkinen was advised to see a Kinesiologist to establish an exercise regime; however, because transportation was a problem, Ms. Pelkinen chose to continue with the physiotherapy instead.
[11] Dr. Chu began seeing Ms. Pelkinen in January 2005 and continued to treat her for headaches, neck and shoulder pain up to the date of trial. Dr. Chu’s diagnosis was myofascial pain syndrome in the neck and shoulder girdle consisting of wide-spread pain, which was worse on the right side, following the 2004 motor vehicle accident. Ms. Pelkinen also suffered shoulder tip pain briefly between May and August 2005. Dr. Chu found neither neurological compromise nor any significant mechanical pain in her neck and spine. He commented that during 2004 and 2005 Ms. Pelkinen started to have more mood disturbances and anxiety.
[12] In his reported dated April 4, 2007, Dr. Chu describes myofascial pain as a complicated chronic pain syndrome:
It is theorized to be a central nervous system pain disorder with peripheral manifestations of muscle soreness and tightness on movement with palpitation. It is thought that there are certain changes within the central nervous system pain pathways that produce hyper reactive and hypersensitive pain pathways which respond to any kind of painful stimulus by producing muscle stiffness and muscle pain. …
That is usually why it is not strenuous activities that flare up the pain so much as static postures such as when she is looking down reading or when she is looking up for a prolonged period of time which causes irritation of these painful muscle groups which in turn produces even more muscle tightness and so on. …
Often times when one has a chronic pain syndrome other areas are affected such as mood disturbance, anxiety, and sleep disturbance. (at p. 2-3)
[13] Dr. Chu also comments that in a typical whiplash the injury consists of micro tears within the muscles and ligaments surrounding the neck; and normally the pain resolves in a few to several weeks. In about 10% of whiplash cases, however, the person develops chronic myofascial pain syndrome. Whether someone continues to suffer chronic pain after the physical injury has healed depends upon such factors as their previous experience with chronic pain, de-conditioning, mood disturbance, anxiety, the patient’s perception of the sick role, interpersonal, job, and monetary stress, as well as the stress of litigation (Dr. Chu’s April 4, 2007 report).
[14] Dr. Chu’s primary treatment for the shoulder and neck pain consisted of various forms of cortisone injection in trigger points. These injections were very painful and appeared to provide only temporary relief. Dr. Chu also recommended an active rehabilitation program to increase Ms. Pelkinen’s conditioning, strength, and flexibility. Conditioning exercises would increase her tolerance to pain.
[15] During July and August 2005, Ms. Pelkinen worked with a kinesiologist to establish an exercise routine and in October 2005 she reported to Dr. Chu that ICBC had agreed to fund additional exercise programs. Ms. Pelkinen also reported that she was doing stretches on her own and that the pain situation appeared to be improving.
[16] Ms. Pelkinen did not return to see Dr. Chu until November 2006. At this time she was still getting headaches but the neck and shoulder pain was not bad. She was exercising on her own and attempting to complete a pharmacy technician course. Her sleep was good with the anti-depressants. In January 2007, Ms. Pelkinen returned to Dr. Chu reporting a flare-up of her neck and shoulder pain and sleep disturbance during her pharmacy technician practicum.
[17] In regard to Ms. Pelkinen’s ability to work and carry out normal activities, Dr. Chu says in his report dated April 4, 2007:
I would also recommend that she try her pharmacy technician work as much as she can tolerate. She just recently finished her practicum after classroom work for the last many months and is finding it very difficult but I think it would be medically suitable for her to continue with that kind of work.
Impairment is a medical diagnosis based on the medical model of disease and illness. It is defined as the alteration or loss in function anatomically, physiologically, or psychologically. … In her case the impairments include mild mood disturbance and anxiety surrounding motor vehicles. …
… Disability is defined as the gap between what one can do and what one is expected to do to meet vocational and avocational goals and duties. In her case she does have a gap. She gets some help from her daughter for certain household chores that require a lot of repetitive action such as vacuuming. She is finding it difficult to do certain tasks at her work or potential work such as a lot of head down positions or looking up into the cupboards above her head. She finds it difficult to do certain aspects of the exercise program such as with weights and resistance.
[18] In terms of a prognosis for the future, Dr. Chu says in his report dated April 4, 2007:
The prognosis is somewhat guarded. I expect that she will have ongoing chronic myofascial pain in the foreseeable future.
It has already been almost 3 years and things have reached a plateau with fluctuations. I don’t expect that to change much but I think we can improve function despite the ongoing pain. That is where the active exercise program comes in to try and improve her strength and endurance so that she can tolerate more despite the pain. Treating the mood disturbance and anxiety will also help with her chronic pain.
In the end I feel she will always have some degree of pain but at the same time she is not in any danger of causing herself any harm or re-injury with normal work activities and chores and exercises and so on. Pain and physical damage are two different things when it comes to this kind of soft tissue pain syndrome.
She is also at no increased risk of developing accelerated degenerative changes in her neck as a result of this chronic pain syndrome or the motor vehicle accident. I don’t see any need for surgical intervention in the future.
[19] In August 2007 Ms. Pelkinen returned to see Dr. Chu and they discussed her recent work as a care aid in a private hospital. Ms. Pelkinen advised him that she had been laid off after a week and was disappointed because this was a job she could perform. However, because she could not do all aspects of the job without experiencing pain and required time off for medical appointments, the employer decided against retaining her services permanently. Dr. Chu was confident that Ms. Pelkinen was physically capable of carrying out this job but felt she would have on-going pain while performing her duties.
[20] Dr. Chu was also of the opinion that exercise would improve Ms. Pelkinen’s ability to handle the pain and that stressors other than those caused by the accident would likely increase her pain symptoms. Underlying this opinion is the fact that Ms. Pelkinen has full range of motion in her neck and no neurological compromise. Ms. Pelkinen had four sessions with a kinesiologist to prepare a fitness program but has not continued with these exercises on a regular basis.
[21] While Dr. Chu did not believe Ms. Pelkinen was malingering or faking her injuries and pain, he thought she might have a lower pain tolerance than other people and may be unconsciously influenced by how others react to her as the “sick person”. In particular, the lower expectations of family and friends and the sympathy she receives may condition Ms. Pelkinen to feel more pain and have lowered expectations for her capabilities.
[22] Due to balance problems noted by Ms. Pelkinen during her practicum in 2007, she was referred to Dr. Smyth, who is a neurologist. Although Dr. Smyth found no neurological abnormalities, he felt Ms. Pelkinen’s dizziness and light headedness were secondary to the MVA. He also relates Ms. Pelkinen’s description of the problem as follows:
Ever since then [the accident] she has been troubled with chronic pain and stiffness involving her neck, radiating into her shoulders and across the base of her skull, which she describes as a pressure sensation. From the beginning she found that certain sudden changes in position, such as turning quickly, looking down or looking up, would trigger off this momentary light-headed sensation or loss of balance and then it would pass. More recently she has been training as a pharmacist and she has to reach up and look up a lot, so her symptoms have been a lot more pronounced. Her current medication includes trazodone 150 mg’s daily, clonazepam 0.5 mg’s daily, and Effexor 150 mg twice a day.
[23] There is no record of any complaint of dizziness to her doctors until 2007. It is also not mentioned in discovery as a symptom.
[24] The defendants retained Dr. Boyle, an orthopaedic surgeon, to provide an independent medical report in connection with Ms. Pelkinen’s soft tissue injuries. He examined Ms. Pelkinen on July 13, 2007. Dr. Boyle’s report does not address the likelihood that Ms. Pelkinen suffers from chronic myofascial pain syndrome, nor does he address the psychological or psychiatric aspects of Ms. Pelkinen’s injuries. Dr. Boyle candidly acknowledged that he had no expertise in the psychological areas and did not appear to be up to date in regard to chronic myofascial pain.
[25] Dr. Boyle found that Ms. Pelkinen had no structural or mechanical abnormalities in the neck, back and shoulders based solely upon objective signs of injury. No symptoms based upon a subjective assessment by the patient were accorded any weight despite the fact that Dr. Boyle found no basis to doubt anything Ms. Pelkinen said about her injuries and pain. Indeed, he could not say there was any evidence of malingering or exaggeration of symptoms.
[26] His impression in regard to the cervical spine is that she suffered a myofascial strain which was defined as an injury to the ligaments, tendons and muscles. There was no evidence of any injury to vertebrae, disc pathology or neurological compromise as a result of the accident. Dr. Boyle was of the opinion that no late degenerative changes would be likely; nor would she require future surgeries. The medical management suggested was stretching and strengthening exercises and the use of anti-inflammatory drugs. In regard to the shoulder pain, Dr. Boyle believed this stemmed from the neck but saw no evidence of any intrinsic shoulder pathology. There was also no muscle wasting noted. No treatments were recommended for the shoulder.
[27] Finally, Dr. Boyle concluded there were no employment limitations on Ms. Pelkinen due to the accident:
It is this writer’s opinion that the events of the motor vehicle accident did not hamper her ability to be a student. The lack of completion of each diploma secondary to lacking typing skills is not in any way related to the MVA.
It is this writer’s opinion that, within four to six weeks of the motor vehicle accident, she could have resumed any employment that she had available to her, i.e. dry cleaning, noon hour supervising, cleaning houses, or working as a long term care aid. It is this writer’s opinion that she could have worked as a MOA or as a pharmacy tech, having completed her courses. Failure to complete these courses is, again, related to the lack of typing skills and not associated with the MVA.
There are no vocational limitations to be placed on this patient as a result of the events surrounding the motor vehicle accident.
Avocational pursuits center mainly around walking and biking, and it is this writer’s opinion that, within that four to six week period post-MVA, she could have resumed these activities with no limitations.
[28] Ms. Pelkinen testified that her headaches continue to occur two or three times per week and last approximately an hour when treated with Tylenol. These headaches were more severe and occurred daily during the first month after the accident. The light-headedness continues to occur two to three times per month. The neck and shoulder pain is also a continuing symptom of the accident and this pain is worse if she does heavy work.
[29] Ms. Pelkinen believes her neck and shoulder pain limit the kind of jobs she can do. She is unable to lift heavy objects or reach up high over her head. The neck pain interferes with her comfort when sitting at a computer for long periods and when her head is bent down for reading or typing. She has stopped doing house work and does far less cooking and sewing because of the neck and shoulder pain. Ms. Pelkinen has had friends help with housework since the accident. She has had particular difficulty vacuum cleaning, washing the bathtub, and changing the bed linen. Stephen Pelkinen, who is Ms. Pelkinen’s youngest son, corroborated his mother’s evidence that after the accident she stopped cooking and cleaning to a substantial degree. He and his brother have had to cook their own meals or order pizza consistently since the accident. Donna Oliver and Crystal Grainger, who are friends of Ms. Pelkinen, also confirmed that they assisted with the house work at the Pelkinen home because of the plaintiff’s inability to do these chores after the accident. They also corroborated her continuing symptoms involving pain in the neck and shoulders. Ms. Oliver corroborated Ms. Pelkinen’s evidence that she had difficulty typing at a computer for long periods. Ms. Oliver attended the same medical office assistant course as Ms. Pelkinen.
[30] Ms. Pelkinen was able to complete her pharmacy assistant practicum without missing a day or leaving early except for medical appointments. However, she did complain of neck pain flare ups and sleep disturbances during this practicum when she saw Dr. Chu in January 2007. Ms. Pelkinen also completed the long term care aid practicum in October 2007 and left early only once because of pain. She has now completed all three programs. The typing component of the long term care aid program was finished in 2005 although she completed the classes in June 2004. The typing component of the other courses was completed by October 2007. Ms. Pelkinen testified that she could have completed all three programs by July 2006 had she not had difficulty typing due to the pain in her neck and shoulders.
[31] Ms. Pelkinen gained weight after the accident because of her sedentary lifestyle due to the neck and shoulder pain. She also lacked the energy to exercise regularly and has done no exercise for two years now.
[32] Lastly, Ms. Pelkinen testified that she gave up about $700 worth of house cleaning jobs and $540 in work at a drycleaners’ as a result of her injuries. She estimates a loss of income of $2,000 from a job looking after a man with disabilities. Ms. Pelkinen turned down this job offer because she was not physically capable of performing the work required. Ms. Pelkinen also testified that but for her injuries she would have been able to continue working as a care aid at $15.65 per hour. She denied advising Dr. Chu that she could do this job without any pain or difficulties.
B. Panic Disorder, Anxiety Disorder and Post Traumatic Stress Disorder
[33] On July 23, 2004, Ms. Pelkinen reported to Dr. Ciavarella that she had developed fear and anxiety associated with driving a motor vehicle. In particular, Ms. Pelkinen became anxious when other vehicles came close to her. They discussed psychotherapy, but no referral was made at this time. Although Dr. Ciavarella believed Ms. Pelkinen was suffering panic attacks and required therapy, he testified there were several reasons why Ms. Pelkinen did not begin seeing a psychologist early on. She could not afford the $100 per hour charged by a psychologist. There were no psychologists in Aldergrove and thus she would have to drive to Abbotsford or Surrey. Because she feared driving, Ms. Pelkinen would find it extremely difficult to attend the psychologist’s office for the multiple visits required.
[34] On several occasions in February 2005, Ms. Pelkinen sought treatment from Dr. Ciavarella for panic attacks associated with driving in a vehicle. Dr. Ciavarella began to treat Ms. Pelkinen with Clonazepam on an as needed basis. When this medication did not control the panic attacks alone, Paxil CR was added to her treatment plan. For some reason Ms. Pelkinen discontinued the Paxil for a time but in April 2005 Dr. Ciavarella doubled the dosage of Paxil, restarted her on Clonazepam at night, made a referral to a program at Langley Mental Health, and recommended a psychiatric consultation.
[35] On April 29, 2005, Ms. Pelkinen returned to Dr. Ciavarella’s office complaining that her fear and anxiety had increased. She also reported that her sister had recently been diagnosed with ovarian cancer. Dr. Ciavarella felt that the stress associated with the bad news about Ms. Pelkinen’s sister probably aggravated the anxiety and panic disorder problems and initiated clinical depression. The doctor referred Ms. Pelkinen to Public Mental Health and asked for a psychiatric consult. He also increased her clonazepam dosage to twice per day.
[36] During May 2005, Ms. Pelkinen reported to Dr. Ciavarella that additional life stressors had aggravated her fear and anxiety. The reported problems included her son’s anti-social conduct and the news that her grandmother had developed a serious illness. In response, Dr. Ciavarella increased her Paxil dosage and obtained an earlier psychiatric consult with Dr. Pande.
[37] Ms. Pelkinen’s first appointment with Dr. Pande was on July 7, 2005. Ms. Pelkinen reported that about two months after the accident she began to have a sensation of panic and fear around driving, getting into cars, and fear at red lights to the point where she was afraid to leave the house. She also reported insomnia with frequent awakenings. These symptoms of anxiety, along with butterflies in the stomach, a shaking feeling, and diarrhoea persisted for several months and adversely affected her day-to-day functioning.
[38] Dr. Pande diagnosed Ms. Pelkinen with panic disorder and post traumatic stress disorder (PTSD). The PTSD stemmed from symptoms that included hyper-vigilance around motor vehicles, a sense of foreshortened future, intrusive recall of the accident, and avoidance of situations that might trigger her recollection of the accident. Dr. Pande also noted that Ms. Pelkinen had no history of psychiatric disorders, drug or alcohol addiction, or maladjusted personality. Further, it was Dr. Pande’s opinion that Ms. Pelkinen’s anxiety disorder was related to the accident:
Ms. Pelkinen’s anxiety disorder was clearly related in onset to the Motor Vehicle accident. Her anxiety was related to triggers that reminded her of the accident. This has caused some dysfunction and constriction in her life style in terms of reducing her use of roads and vehicles freely to get to her job or shopping or outings with her children. (Dr. Pande’s report June 30, 2007)
[39] Dr. Pande changed Ms. Pelkinen’s medication to Venlafaxine, which is an anti-depressant and anti-panic agent, along with Trazodone for sleep and Clonazepam for day time anxiety. The Venlafaxine dose was eventually maximized to 300 mg per day.
[40] After the first consultation, Dr. Pande saw Ms. Pelkinen every three to four weeks until April 2006 and again between June and September 2006. During these sessions she received supportive psychotherapy. While mild relapses were caused by the death of Ms. Pelkinen’s sister and her son’s delinquent behaviour, Dr. Pande noted a fair response to the treatment. Dr. Pande explained that Ms. Pelkinen’s grief over her sister’s death was mixed in with her anxiety and panic. He confirmed that while the panic attacks were triggered in motor vehicle situations, Ms. Pelkinen also had spontaneous panic attacks in her home which were triggered by a memory or a thought.
[41] From September to November 2006, Ms. Pelkinen attended a psychotherapy program sponsored by Langley Memorial hospital to learn about cognitive techniques of coping with panic and anxiety. As described by Dr. Pande:
These consist of learning to talk oneself through an attack in a reassuring manner such that one gains capacity to maintain psychological equilibrium even while having symptoms. Also patients are taught techniques for aborting a panic attack by breathing techniques such as slow breathing and breathing into a paper bag to help gain control over the attack. (Dr. Pande’s report June 30, 2007)
[42] Dr. Pande felt that Ms. Pelkinen had fairly good control over her panic attacks after she completed the program at Langley Memorial hospital. She was able to control the mild panic attacks with breathing techniques. However, Ms. Pelkinen still was unable to drive and continued to require medication to control the more significant panic attacks.
[43] Dr. Pande continues to treat Ms. Pelkinen regularly. It is his opinion that she still requires medication and psychological techniques to help her cope with the symptoms of the panic disorder and the PTSD. While the panic attacks have lessened, Ms. Pelkinen continues to be unable to drive. She leaves the house and goes to her doctor’s office, which indicates that she is not totally disabled by the phobia.
[44] Dr. Pande recommended behaviour modification therapy from a psychologist consisting of slow and gradual exposure to the situations causing her fear which would increase the patient’s mastery over the situation. This therapy is most effective if it is implemented soon after the accident. ICBC refused to fund this type of therapy for Ms. Pelkinen at Dr. Pande’s request.
[45] Ms. Pelkinen testified that after the accident she had a complete change in mood and lifestyle. She became irritable and depressed and did not want to get out of bed. She lost her energy and could not perform daily chores. Ms. Pelkinen also had difficulty sleeping because of the pain in her shoulders and neck and because she was having panic attacks due to nightmares. She rarely goes out socially and has stopped attending church and doing volunteer work.
[46] Ms. Pelkinen testified the panic attacks are triggered when she is a passenger in a vehicle, on a bus, if a large truck passes her, and if she goes past the accident site. They are also triggered at night in her home if she hears noises like a siren. Because of the panic attacks associated with driving, Ms. Pelkinen limited her travel to local, familiar areas during quiet traffic periods and stopped driving entirely in January 2006. While the minor panic attacks can now be controlled by the techniques learned at the Langley Mental Health program, the more severe ones, involving sweating, shaking, a racing heart, crying and clouded thinking, must still be controlled with medication.
[47] The number of panic attacks experienced by Ms. Pelkinen after the accident has been inconsistently described. In discovery, Ms. Pelkinen said she had 10 panic attacks since the accident and none in the seven months prior to April 2007. In cross examination, she said there had been 24 panic attacks in the past six months, with about three to four each month. Ms. Pelkinen testified that the discovery answers were obviously in error.
[48] In addition, Ms. Pelkinen testified that she has anxiety attacks and has suffered memory problems since the accident. The anxiety attacks appear to be connected with her depression which began in the spring of 2005, coinciding with other personal problems which included her grandmother’s illness, her sister’s illness due to cancer, and some problems with her son’s delinquency. While Ms. Pelkinen testified she told Dr. Pande or Dr. Ciavarella about the memory lapses, she did not mention this symptom during her discovery.
[49] Other symptoms of psychological problems Ms. Pelkinen attributes to the accident are her constant fatigue, her lack of interest in personal hygiene, her lack of desire for social contact, nervousness in crowds and dizzy spells. She has also had more difficulty dealing with stress since the accident. Ms. Pelkinen acknowledges that these symptoms may be related to her depression and that the other stressful events in her life played a role in causing her depression.
[50] In January 2008, Ms. Pelkinen was hospitalized for a week and given electro-convulsive therapy treatments for depression and anxiety. She continued with this therapy as an out-patient receiving this treatment under Dr. Pande’s supervision.
[51] Stephen Pelkinen corroborates his mother’s change in personality since the accident. I found him to be a very credible witness; his evidence was forthright and heartfelt. He testified that since the accident his mother has complained of neck pain and lower back pain; she does not cook or drive and sleeps all day. She is depressed, upset, and irritable. He complained that Ms. Pelkinen did not clean the house any more and stopped taking the family on outings. Vacuum cleaning, as well as reaching up and bending down, is particularly difficult. Her mood went from fun and outgoing to low energy, crying a lot, not wanting to go out with friends, and generally depressed. She is described as a tense passenger in a vehicle and, when she has a panic attack, Ms. Pelkinen has difficulty breathing. Because she will not go to the school or take her sons out to places, their relationship has suffered greatly.
[52] Ms. Oliver testified about the changes she saw in Ms. Pelkinen after the accident. They were neighbours and enrolled together in the medical office assistant program. Before July 2004, she describes Ms. Pelkinen as a fun, always joking, personality; she was outgoing and extroverted. After the accident Ms. Pelkinen became withdrawn and introverted. She does not socialize and is only rarely convinced to go out with friends for special occasions. When Ms. Pelkinen is a passenger in Ms. Oliver’s vehicle, she exhibits signs of panic attacks; such attacks have also occurred on buses. She is very quiet and sits the rear seat so it is more difficult to see other vehicles coming toward her. Ms. Oliver has also seen Ms. Pelkinen have anxiety attacks when shopping in large stores.
[53] Ms. Grainger also corroborated the changes in Ms. Pelkinen’s personality since the accident. They have known each other for about 16 years. Ms. Grainger described Ms. Pelkinen as going from a fun, outgoing person to a paranoid, tired person who always appears to be in pain, walks slowly, cries much of the time, and has bad headaches. Ms. Pelkinen stopped doing household chores; she does not cook and never takes her children out. Even up to the spring of 2007, Ms. Grainger continued to help Ms. Pelkinen with housework. She also confirmed Ms. Pelkinen’s panic attacks associated with being in a vehicle. While Ms. Grainger acknowledged there were other stresses in Ms. Pelkinen’s life, she was of the view that the injuries caused by the accident were the primary cause of her difficulties.
[54] An opinion letter from Dr. Arojojoye, a psychiatrist, was entered into evidence by the defendants. Dr. Arojojoye did not examine Ms. Pelkinen; he reviewed her medical records and cautioned that his opinions were purely academic in nature and would only serve as a guide. Based on the treatment Ms. Pelkinen received from Dr. Pande, Dr. Arojojoye believed a reasonably good therapeutic response could be expected within six to 12 months, subject to issues such as personality, presence of chronic pain, ongoing negative life events, and secondary gain issues which could affect her recovery. Dr. Arojojoye was also of the opinion that the patient’s underlying condition could be worsened by a severe trauma such as the death of a close relative:
The loss of a close relative will potentially worsen the patient’s underlying condition in addition to triggering an acute grief reaction, depressive type which is separate from her diagnosis of post traumatic stress disorder and panic disorder. By this I mean the patient then develops an acute bereavement reaction which is a depressive syndrome in addition to her previous diagnosis of panic disorder and PTSD.
[55] Lastly, Dr. Arojojoye indicated that a return to work after a long absence is difficult for an older woman for a number of reasons unconnected with the motor vehicle accident. These factors include on-going physical and psychological problems, low self-esteem, poor coping skills, and a protracted period of unemployment.
ARGUMENT
[56] Ms. Pelkinen argues the authorities support an award for non-pecuniary damages in the range of $110,000. In support of this amount, she emphasizes the severity of the accident, the severe pain in her neck and shoulders over a four year period, the depression, panic attacks, post-traumatic stress disorder, and anxiety. Ms. Pelkinen also refers to the guarded prognosis for the future in the medical reports and maintains the evidence establishes that her symptoms will continue into the future.
[57] Ms. Pelkinen also argues that the other stressful events in her life only aggravated the emotional problems caused by the accident. They are not causal factors on their own; she suffered no psychological or psychiatric illnesses before the accident. She submits that where the defendant materially contributes to the plaintiff’s condition more than de minimus, the defendant is 100% responsible for the damages.
[58] In support of her position on general damages and causation, Ms. Pelkinen relies upon Jackson v. Lai, 2007 BCSC 1023; MacLean v. Budget-Rent-A-Car of Edmonton Ltd., 2006 BCSC 1344; Whyte v. Morin, 2007 BCSC 1329; Cam v. Hood, 2003 BCSC 1563; Higgerty v. Hazell, 2000 BCSC 1901; Matkin v. Gaurian, 2003 BCSC 763; Ashcroft v. Dhaliwal, 2007 BCSC 533, 71 B.C.L.R. (4th) 234; Stone v. Ellerman, 2007 BCSC 969; Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d) 318 (C.A.), aff’d [1994] B.C.J. No. 748 (S.C.) (QL); Schellak v. Barr, 2001 BCSC 1323, rev’d 2003 BCCA 5, leave to appeal to S.C.C. refused, 29638 (September 11, 2003); Athey v. Leonati, [1996] 3 S.C.R. 458; and Briglio v. Faulkner, 1999 BCCA 361, 69 B.C.L.R. (3d) 122.
[59] Ms. Pelkinen claims a loss of $3,000 in past wages and $30,000 for loss of earning capacity up to the date of trial. The loss of earning capacity claim is based upon the significant delay in completing her courses caused by the injuries suffered in the accident as well as her inability to carry out all of the functions of a care aid worker, a job she tried unsuccessfully for a week in 2007. Ms. Pelkinen also claims a loss of future earning capacity based upon her inability to do labour-intensive work, her continuing inability to drive and take buses, and her poor recovery from the myofascial pain syndrome. She argues an award of $120,000 is appropriate based upon the medical evidence that supports a further period of disability and upon an estimated earning potential, absent the injuries, of $25,000 to $35,000 per year. The authorities relied upon are Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); Nagami v. Larsen, [1993] B.C.J. No. 1380 (S.C.) (QL); Poustie v. Snell, [1996] B.C.J. No. 3175 (C.A.) (QL); Kahle v. Ritter, 2002 BCSC 199; Delgado v. Parra, 2002 BCSC 1345; and Spencer v. Rozon, 2000 BCSC 674.
[60] Ms. Pelkinen also claims an award for past loss of housekeeping services based upon one hour per day at $15.00 per hour for 3.7 years. Because of her inability to do most of her housework, cooking, gardening, and sewing, Ms. Pelkinen argues an award of $20,250.00 is appropriate. She also claims for future loss of housekeeping services in the amount of $21,900 which is based upon an additional four years at one hour per day. The authorities relied upon are Deo v. Deo, 2005 BCSC 1788; Chamberlain v. Giles, 2008 BCSC 171; and McTavish v. MacGillivray, [1997] B.C.J. No. 1693, aff’d 2000 BCCA 164.
[61] In regard to future care, Ms. Pelkinen argues an award of $2,749 for the cost of an active rehabilitation program for four years is warranted given Dr. Chu’s recommendations. Further, she maintains the net cost of medications at $800 per year for an additional four years is also warranted. Finally, based upon Dr. Pande’s recommendation, Ms. Pelkinen claims $2,300 for psychological therapy for her panic disorder. This amounts to 20 sessions at $100 to $130 per hour.
[62] In regard to special damages, Ms. Pelkinen claims for the cost of medications, physiotherapy fees, pool fees, and a mouth guard for her TMJ pain the amount of $1,410 in total.
[63] The defendants argue Ms. Pelkinen’s claims must be assessed in light of the unreliability of her evidence in general and the lack of medical evidence to support both the severity of her complaints and the existence of some or all of her injuries. In regard to her unreliability as a witness, the defendants point to Ms. Pelkinen’s failure to identify memory problems, balance, dizziness and lighheadedness as complaints during discovery; and the fact that she did not raise these problems with her physicians or raised them long after the accident in 2004. The defendants also refer to the fact that Ms. Pelkinen overstated her past income, exaggerated her continuing headache problems, and inconsistently reported the number and severity of her panic attacks. Lastly, the defendants maintain Ms. Pelkinen has exaggerated the disability caused by her injuries in terms of the jobs she is able to do, her capacity to carry out household chores, and function normally. None of her lack of capacity is supported by the medical evidence.
[64] In regard to causation, the defendants argue there is no medical evidence to support a causal connection between the accident and Ms. Pelkinen’s TMJ complaints and this problem was not raised with her family doctor until August 2005. In addition, the defendants argue that Ms. Pelkinen’s depression since the spring of 2005 was caused by the other stresses in her life and is not related to the motor vehicle accident. The onset of depression is coincident with the news that her sister had cancer, her grandmother was gravely ill, and her son was having serious behaviour problems. The defendants also maintain the fact Ms. Pelkinen was injured while riding in a HandyDART bus in August 2007 has exacerbated her symptoms. In support of their position, the defendants rely upon Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.
[65] The defendants also maintain Ms. Pelkinen has failed to mitigate by neglecting to follow through with her exercise program and by the delay in seeking therapy from a psychologist for the panic attacks.
[66] In regard to her ability to work, the defendants argue the accident did not delay her completion of the three courses she was registered in at the time, nor did the accident injuries preclude her from working in any of these jobs. She completed the pharmacy assistant practicum in 2006 and the care aide practicum in 2007 without leaving early or complaining of pain to her employer. She never looked for employment between September 2003 and July 2006.
[67] The defendants argue the medical evidence supports their position that Ms. Pelkinen had only a mild to moderate soft tissue injury stemming from the accident that has not left her disabled from work in any way. Dr. Pande says that there were other stressors contributing to her depression and that she has only a mild phobia with good coping skills. Dr. Chu believed that with more exercise and after the end of the litigation Ms. Pelkinen’s condition would improve; that she was medically capable of doing the pharmacy technician job; that her pre-accident carpal tunnel syndrome in the left wrist may be symptomatic in the future; that she could cook and sew; and that her symptoms were entirely subjective. Dr. Boyle saw no objective signs of injury, including no loss of muscle mass; he also believed the injuries did not interfere with her courses and did not preclude jobs in these areas. Dr. Arojojoye’s report indicates her panic attack symptoms should have been substantially resolved in six to 12 months; that the loss of her sister and her son’s difficulties would worsen her underlying condition; and that factors other than the injuries are delaying her re-entry into the workforce.
[68] In light of the medical evidence underlying only a portion of Ms. Pelkinen’s complaints, the defendants argue a non-pecuniary damage award in the range of $30,000 to $35,000 is appropriate. They rely upon Krause v. Gill, 2006 BCSC 1459, and Johnston v. Day, 2002 BCSC 480.
[69] The defendants argue there is no evidence in support of a past wage loss claim because Ms. Pelkinen was not looking for work between September 2003 and July 2006 and after this time the medical evidence does not support any claim that she was disabled from working. The defendants also argue that Dr. Boyle’s opinion supports a conclusion that there is no future loss of earning capacity. The defendants argue the authorities only support an award for future loss of capacity when the plaintiff is less capable overall from earning income from all types of employment or less able to take advantage of all potential jobs: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).
[70] Lastly, in regard to special damages, the defendants agree the physiotherapy fees and the swimming pool fees are reasonable. The medication costs may, in part, be related to her injuries and the panic disorder, but much of it must be assessed as related to other causes underlying her depression. The defendants also argue the medication would not have been necessary had Ms. Pelkinen continued with her exercise program as recommended by her doctors. The defendants accept responsibility for $800 in special damages. Housekeeping expenses are unreasonable, argue the defendants, because the medical evidence does not support an inability to carry out this type of work. The defendants agree to four to six weeks of housekeeping, in line with Dr. Boyle’s opinion that she would have been disabled for this period of time.
DECISION
[71] After reviewing the evidence and considering the submissions of the parties, I am satisfied that this is not a case where there are serious doubts about the credibility of Ms. Pelkinen’s testimony concerning her injuries and the impact of the accident on her life. There are clearly some inconsistencies in Ms. Pelkinen’s evidence, particularly in regard to the number of panic attacks she has experienced over the almost four years since the accident. Nevertheless, her evidence is substantially corroborated by the lay witnesses and the medical experts who have provided opinion evidence in respect of both her physical injuries and her psychological and psychiatric illnesses. While Dr. Boyle’s opinion must be given weight in terms of his opinion that there was no ongoing structural or mechanical injury, he also concluded Ms. Pelkinen experienced a myofascial strain of the neck and could not say that her pain was now simply malingering or false. Moreover, unlike Dr. Chu, Dr. Boyle did not appear to be an expert in chronic myofascial pain syndrome and clearly deferred to Dr. Pande in terms of any psychiatric factors that might be influencing Ms. Pelkinen’s symptoms.
[72] Although there appears to be a difference between what the medical experts say Ms. Pelkinen can do physically, and what she believes she can accomplish, I find this gap is not one of credibility. There are other psychological factors at play that have influenced how Ms. Pelkinen’s views her capacity to work, to do household chores, to relate to family and friends, and to carry out every day activities. The question is whether these psychological factors are causally connected to the motor vehicle accident such that the defendants are responsible at law. The defendants do not dispute a causal connection between the vehicle-related panic attacks and the accident. Their argument is that intervening events have resulted in a significant depressive illness that is unrelated to the accident and not simply an exacerbation of the panic attack symptoms.
[73] Causation in actions for negligence was revisited by the Supreme Court of Canada in Resurfice Corp. where the issue was whether it was the defendants’ negligence that caused an accident with an ice-resurfacing machine and the subsequent injuries to the plaintiff as its operator. The principles of causation reiterated by the court are as follows:
1. The basic test for determining causation remains the “but for” test. This applies to multiple injuries. The plaintiff bears the onus of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.
2. The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. A defendant is not liable for injuries that may be due to other factors and not the fault of anyone.
3. In special circumstances the law recognizes exceptions to the basic “but for” test and applies a “material contribution” test where (1) it is impossible to prove the defendant’s negligence caused the injury using the “but for” test because of factors outside the plaintiff’s control, i.e. beyond the limits of current scientific knowledge; and (2) it must be clear that the plaintiff’s injury falls within the ambit of the risk created by the defendant’s breach of the duty of care.
[74] In regard to the application of the “but for” test, the Supreme Court of Canada said in Athey v. Leonati at ¶16 and 17:
In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is "essentially a practical question of fact which can best be answered by ordinary common sense". Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof.
It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. … As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.
[75] In my view, this is not one of those cases where the “but for” test is unworkable and must be replaced by the “material contribution” test. This is merely a situation where the court must determine whether all or any portion of the plaintiff’s symptoms are substantially connected to the accident.
[76] The defendants do not challenge the causal connection between the panic attacks suffered by Ms. Pelkinen in and about driving in vehicles and the motor vehicle accident in July 2004. The causal connection is firmly established by Dr. Pande’s opinion that the accident caused Ms. Pelkinen to develop a panic disorder, as a form of anxiety disorder, and post traumatic stress disorder. While the symptoms were primarily related to travelling in vehicles, whether as a passenger or a driver, Dr. Pande’s report also indicates Ms. Pelkinen was so traumatized by the accident experience that she was afraid to leave the house.
[77] Ms. Pelkinen was treated by Dr. Pande with supportive psychotherapy and she completed a program at Langley Mental Health that provided her with techniques to cope with the panic attacks. Despite this therapy, Ms. Pelkinen continues to require medication to control her symptoms, remains fearful while travelling as a passenger in buses and in private motor vehicles, and cannot drive herself.
[78] The defendants argue Ms. Pelkinen continues to suffer from the panic attacks because superimposed upon this disorder is a depressive illness triggered by the death of her sister, her son’s delinquent behaviour, and her grandmother’s illness. They also argue the depression is a separate illness that presents with severe symptoms which are quite distinct from the panic disorder.
[79] I find there is evidence, to support Ms. Pelkinen’s argument that these life stressors would not have had such a dramatic impact on her had she not been involved in the accident. First, Ms. Pelkinen has no history of psychiatric disorders; she was an outgoing, happy person before the collision. Dr. Pande noted that Ms. Pelkinen has no drug or alcohol addictions and no maladjusted personality or personality disorders in her history or presentation. Thus there is no evidence Ms. Pelkinen was pre-disposed to depression or any other psychological illness.
[80] Second, it was Dr. Pande’s opinion that Ms. Pelkinen’s grief over her sister’s death and the problems created by the other stresses in her life were wrapped up with the panic and anxiety disorders. While they may have caused relapses in terms of her recovery, they did not cause the panic attacks and the anxiety disorder.
[81] Finally, Ms. Pelkinen reported she was having fear and anxiety in connection with driving shortly after the accident in 2004. The additional life stresses did not occur until the spring of 2005. While the latter date may coincide with when Ms. Pelkinen began to see Dr. Pande, her family doctor started to treat the problem with different types of anti-depressants and anti-anxiety drugs as early as February 2005. Thus the timing of her complaints and the initiation of treatment pre-dates the existence of the other life stressors.
[82] Based upon this evidence, I find that Ms. Pelkinen has established on the balance of probabilities a substantial connection between the defendants’ negligence and the panic disorder she continues to suffer from. While the symptoms are primarily related to travelling in vehicles, it is apparent that the anxiety and panic attacks sometimes affect Ms. Pelkinen’s ability to carry on other activities such as shopping in crowds and even going out with friends. Dr. Pande’s evidence supports a conclusion that Ms. Pelkinen has panic attacks inside her house that are triggered by a memory or a thought.
[83] There is insufficient evidence, however, to establish that the panic attacks and post-traumatic stress disorder have caused her almost complete withdrawal from all activities due to exhaustion and lack of motivation. There is simply no medical evidence to support a connection between these severe symptoms of depression and the motor vehicle accident. Indeed, Dr. Ciavarella’s report dated May 20, 2007 appears to indicate that the news of her sister’s illness aggravated Ms. Pelkinen’s problems with anxiety and panic disorder, and “initiated a problem with depression” (at p. 4). In my view, the defendants remain liable for any aggravation of the panic disorder caused by other, unrelated factors; however, they are not responsible for the symptoms caused solely by Ms. Pelkinen’s depression.
[84] This is not to say that a phobia that precludes a person from driving and makes being a passenger in a vehicle a traumatic experience is not severely disabling. For almost four years Ms. Pelkinen has been reminded of this terrifying accident every time she steps into a bus or a car; her restricted ability to travel has an impact on where she can shop, work, and take her children on outings. She is largely dependent upon family and friends for transportation because even travel on public transit beyond familiar areas is traumatic for Ms. Pelkinen. To control the symptoms Ms. Pelkinen has been required to take high doses of medication that obviously affect her mood and personality. She can now control the mild panic attacks and they are less frequent; however, they are still an ever present part of her life.
[85] The defendants argue Ms. Pelkinen has failed to properly mitigate by not seeking treatment from a psychologist early on and by waiting until 2006 to take the Langley Mental Health program. Dr. Ciavarella recommended a psychologist to Ms. Pelkinen on July 23, 2004; however, Ms. Pelkinen did not follow up on this recommendation. In addition, she did not attend the Langley Mental Health program until the summer of 2006 even though it was recommended in April 2005.
[86] Although a failure to take advantage of treatment options, particularly when they are most effective shortly after the symptoms surface, can lead to a conclusion that the patient has failed to mitigate, all of the relevant circumstances must be considered. In this case, Ms. Pelkinen could not afford the cost of a psychologist and there is no evidence ICBC had agreed to compensate her for the multiple visits required. Indeed, Dr. Pande requested authorization for this treatment and received no response. In addition, there were no psychologists in Aldergrove where Ms. Pelkinen resides. Thus she would have had to drive to Abbotsford or Surrey. Obviously, driving to these places was out of the question due to her phobia. The Langley Mental Health program was publicly funded thus cost was not an issue. However, shortly after this program was suggested by Dr. Ciavarella, Ms. Pelkinen began seeing Dr. Pande and the psychotherapy used in his treatment sessions was quite successful, apart from some relapses due to her sister’s death. Further, the Langley Mental Heath program could not provide a “cure” for her panic attacks. The program taught Ms. Pelkinen ways to control mild attacks with breathing techniques, but she still required medication and therapy from Dr. Pande on an on-going basis. Thus there is no evidence that the delay in completing this program has worsened Ms. Pelkinen’s psychological illness or delayed her full recovery. Accordingly, I find there has been no failure to mitigate.
[87] Addressing the physical injuries suffered by Ms. Pelkinen, the defendants do not take issue with the causal connection between the soft tissue injuries to her neck and the accident. They argue, however, that there is no evidence that a shoulder injury, TMJ pain, right arm numbness, memory loss, and dizziness were caused by the accident. The defendants also dispute the severity of any cervical spine injury and its impact on Ms. Pelkinen’s ability to work and carry on daily activities.
[88] In my view, the preponderance of medical evidence supports a conclusion that Ms. Pelkinen suffered a soft injury to her right shoulder, sternum, rib cage and lower abdomen, as well as a myofascial sprain affecting the neck, shoulders, and posterior cervical spine due to the accident. These injuries are evident in Dr. Ciavarella’s reports and his subsequent referral to Dr. Chu, an expert in physical and rehabilitation medicine. Although the soft tissue injuries affecting her sternum and right shoulder cleared up after a few months, she was left with chronic myofascial pain in her shoulders and neck. The pain from this chronic condition was so severe that Ms. Pelkinen underwent repeated cortisone and anaesthetic block injections which were extremely painful and provided only temporary relief. Her symptoms included severe, reoccurring headaches, pain, sleep disturbance due to the pain and anxiety, and restricted movements. Even though only 10% of traumatic whip lash victims develop chronic myofascial pain syndrome, there is no evidence that Ms. Pelkinen is malingering.
[89] In my view, the psychological impact of the accident on Ms. Pelkinen’s health was a contributing factor in the progression of her acute soft tissue injury to one of chronic myofascial pain. This conclusion is supported by Dr. Chu’s evidence that mood disturbances, anxiety, and sleep disturbances play a significant role in the development of a chronic pain syndrome regardless of whether the underlying physical injury is still present. While there were other unrelated factors, such as the stressors in Ms. Pelkinen’s life post-accident, I find there is a substantial connection between the psychological impact of the accident and the chronic pain suffered by Ms. Pelkinen.
[90] I am also satisfied, based upon Dr. Chu’s evidence, that Ms. Pelkinen remains partly disabled by the chronic pain syndrome and will be so disabled for the foreseeable future. She requires assistance with household chores that involve repetitive movements and has difficulty doing work that requires her head to be down for sustained periods or involves reaching and looking above her head. Ms. Pelkinen also has difficulty doing exercises that require weight lifting and resistance. Moreover, these disabilities are adversely affected by the psychological problems caused by the accident (Dr. Chu’s report dated April 4, 2007 at p. 4).
[91] The evidence does not support a conclusion that Ms. Pelkinen is totally disabled from employment or that she is unable to improve her pain tolerance. Dr. Chu was of the opinion that an exercise program would be very beneficial to Ms. Pelkinen in terms of improving her pain tolerance and that she was medically able to carry out the functions of a pharmacy technician or some similar type of work. Further, the evidence does not support a relationship between the TMJ pain first reported about a year after the accident and the dizzy spells and balance problems that did not surface until two or three years after the collision. On the other hand, there is no medical evidence to support the defendants’ submission that the carpel tunnel syndrome experienced by Ms. Pelkinen in her wrist in April 2003 or the minor collision in August 2007 had any impact on the severity of her physical or psychological injuries.
[92] The defendants also argue Ms. Pelkinen has failed to mitigate her loss in regard to the physical injuries because she has not followed through with a regular exercise program and, in particular, the exercise routine developed by a kinesiologist. I agree the medical evidence supports a conclusion that Ms. Pelkinen would have achieved a better recovery from her physical injuries had she regularly engaged in an exercise program. Dr. Chu was of the opinion that Ms. Pelkinen would have improved her pain tolerance with strengthening and endurance exercises. At the same time, however, Ms. Pelkinen’s debilitating psychological disorders overlay the physical injuries and undoubtedly had the effect of reducing her motivation to exercise. Thus I find only a small reduction of 10% in the damage award is warranted in the circumstances.
[93] The purpose of an award of non-pecuniary damages is to compensate Ms. Pelkinen for pain, suffering, loss of enjoyment of life, and loss of amenities. The award should provide compensation that is fair and reasonable to both parties, fairness being measured against awards in comparable cases: Jackson v. Lai at ¶134.
[94] Applying these factors to the case at hand, I am satisfied the pain and suffering Ms. Pelkinen has experienced, both in regard to her physical and psychological injuries, the extent to which these injuries have affected her ability to enjoy life in the way she did previously, the limitations the injuries have placed on the nature of the work she can do both inside and outside her home, and the probability that she will continue to be symptomatic into the future, justify an award of $90,000 in general damages, less 10% for failure to mitigate, for a total of $81,000.
[95] Turning to Ms. Pelkinen’s claim for loss of income, past and future, I find an award under both headings is warranted. At the time of the accident Ms. Pelkinen was a student at the Langley Academy of Learning. Apart from some casual part time jobs, she had been out of the workforce for many years while raising her children and a return to work became necessary due to the separation from her husband. She received a $2,000 scholarship from the provincial government and a student loan to cover her expenses for the three courses she had chosen to take between September 2003 and July 2006. Although Ms. Pelkinen eventually completed all three courses, including the typing requirements, there was a delay from the expected completion date of July 2006 until October 2007.
[96] Ms. Pelkinen argues the delay in completing these courses was due to the accident. She testified that after the accident she missed several classes because of her injuries and she was no longer able to sit at a computer desk for long periods or hold her head in a downward position to type for any extended period of time. As a consequence, it took Ms. Pelkinen much longer than originally expected to achieve the typing levels required for the courses. Ms. Oliver, who was in Ms. Pelkinen’s medical office assistant class, confirmed that typing became very difficult for her after the accident. She testified that Ms. Pelkinen had to raise the computer monitor with books and lower her seat to make it more comfortable to work because she could not keep her head in a lowered position. Dr. Boyle’s report indicates Ms. Pelkinen’s injuries would not have made typing difficult, and thus her inability to pass this part of the courses must be due to her own deficiency. I find this opinion is somewhat speculative because Dr. Boyle examined Ms. Pelkinen once on July 13, 2007, some three years after the accident. There is also no evidence that Ms. Pelkinen was having difficulty typing before the accident. Moreover, Dr. Chu confirms that Ms. Pelkinen has difficulty maintaining her head in a stationary downward position due to the pain she experiences. Consequently, I accept Ms. Pelkinen’s submission on this point.
[97] Addressing past wage loss, Ms. Pelkinen testified that while she did not look for work between September 2003 and July 2006, she turned down work offered to her cleaning homes, working for a drycleaners’, and caring for an elderly man with disabilities. The total loss claimed is $3,000. While attending school between July 2004 and July 2006, I find Ms. Pelkinen would not have worked more than a few casual hours per month because of the heavy course load regardless of her injuries. This conclusion is also consistent with her income for 2003 which was a nominal $2,404. Accordingly, for this two year period I find $3,000 is a reasonable estimate of her income loss.
[98] After July 2006, Ms. Pelkinen could reasonably have expected to earn a substantially greater income as a long term care aid or a pharmacy assistant. Because Ms. Pelkinen did not graduate until October 2007, her ability to obtain employment in these fields was delayed due the injuries sustained in the accident. Based on the one week of employment Ms. Pelkinen had as a care aid in the spring of 2007, I find a wage rate of $15.65 per hour is a reasonable estimate of her loss of income during the period of delay in completing the courses. Making allowances for contingencies, such as the availability of these jobs in the market place and Ms. Pelkinen’s general employability given her age and education, I find that nine months’ income at 35 hours per week for a total of $19,700 is a reasonable assessment of her past loss of income.
[99] An assessment of Ms. Pelkinen’s loss of income after October 2007 is more complicated because it involves a determination of her loss of future earning capacity and the extent to which the physical and psychological injuries caused by the accident have limited her ability to work. It is apparent that Ms. Pelkinen’s health currently precludes her from any type of work. She was recently hospitalized for severe depression and anxiety and treated with electro-shock therapy. However, because of my conclusion that Ms. Pelkinen’s severe depression is not substantially connected to the motor vehicle accident, the defendants are not responsible for her inability to work in any capacity.
[100] There are, however, vocational limitations causally connected to the accident that still burden Ms. Pelkinen and which will continue to disable her from work to a certain extent into the foreseeable future. As Dr. Chu indicates, Ms. Pelkinen will continue to suffer from chronic pain in her neck and shoulders into the future and this pain will be worse when she does repetitive movements, maintains her head in a fixed, downward position, and reaches above her head. Thus while Ms. Pelkinen is medically fit for the pharmacy technician job and the long term care aid job, she will have difficulty with the computer work required and with some of the housekeeping duties. These restrictions on her physical capacity are likely to affect her ability to obtain employment in these fields in competition with more able-bodied applicants.
[101] Similarly, Ms. Pelkinen’s driving phobia will likely have a substantial impact on her employment prospects. Her job search will be geographically restricted because she is unable to drive and finds bus travel brings on panic attacks. While she is not totally disabled by the phobia (she has attended doctor’s appointments near her residence), a fear of travelling will undoubtedly have an adverse impact on her marketability as an employee in a wide variety of jobs.
[102] Loss of earning capacity is assessed as the impairment or loss of a capital asset. The factors used to measure a loss of income earning capacity are described in Kwei v. Boisclair at ¶8, citing Brown v. Golaiy at ¶8:
The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:
1. The plaintiff has been rendered less capable overall from earning income from all types of employment;
2. The plaintiff is less marketable or attractive as an employee to potential employers;
3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
[103] Apart from Ms. Pelkinen’s depression, the injuries caused by the accident have reduced her overall marketability; she is clearly less attractive to a potential employer because of the driving phobia and her physical limitations. For the same reasons, she has been rendered overall less capable to earn income generally and to take advantage of jobs that might otherwise be open to her.
[104] To calculate her loss, the court must take into account many factors including, past employment history, her age and education, the probability that therapy will eventually bring her driving phobia under control, and that adherence to an exercise program will substantially improve her pain tolerance; market forces and other unrelated causes for Ms. Pelkinen’s failure to achieve her full potential in the labour market are also relevant. In summary, assessment of damages under this heading is a matter of judgment, based in large part on assumptions about unknown events in the future, rather than a simple, mathematical calculation: Rosvold v. Dunlop 2001 BCCA 1, 84 B.C.L.R. (3d) 158, at ¶8 to 10, Huddart J.A.
[105] Considering all of the relevant factors in this case, I find Ms. Pelkinen’s loss of earning capacity, as it relates strictly to the injuries causally connected to the motor vehicle accident, is $60,000. This award is based upon an assessment that she will earn an average of $25,000 per year and continue to be partly disabled for the next four years. This sum, $100,000, is reduced by 40% based on my assessment that 80% of Ms. Pelkinen’s impairment is related to her psychological disorders and 50% of the psychological disorders are non-accident related.
[106] Addressing Ms. Pelkinen’s claim for loss of housekeeping expenses, it is apparent that for the first year after the accident she regularly sought help from Ms. Grainger and Ms. Oliver for most of her cleaning chores. Her son also provided assistance. After the first year Ms. Pelkinen continued to receive help with the heavier work, including chores that required bending and repetitive movements such as vacuum cleaning. Dr. Chu’s evidence supports a conclusion that Ms. Pelkinen has some residual difficulties with some household chores; however, there is no evidence to suggest the injuries sustained in the accident continue to preclude any household chores, including cooking and sewing. In my view, Ms. Pelkinen’s lack of energy and motivation for these tasks stems from causes unrelated to the accident.
[107] Thus, based upon my conclusion that Ms. Pelkinen’s need for housekeeping services gradually decreased to the point where she now only requires assistance with a few repetitive movement chores, I award damages in the amount of $5,130. This award is based upon a need for three hours of housekeeping at $15 per hour once per week in the first year after the accident, three hours of housekeeping every two weeks during the second year, and three hours of housekeeping every month in the third, fourth and fifth years after the accident. ($2,340 first year, $1,170 second year, and $1,620 in total for the next three years.)
[108] Turning to the claim for special damages, Ms. Pelkinen claims a total of $1,410, which represents $346.30 for a mouth guard, $711.92 for prescriptions, $340 for physiotherapy user fees, and $12 for pool fees. The mouth guard is not compensable because I have found there is no evidence to support a causal connection between the TMJ pain and the accident. The physiotherapy and pool fees are not disputed. The defendants argue the medication costs are in part related to Ms. Pelkinen’s depression and should not be compensated. I find that Ms. Pelkinen’s medication for both depression and panic attacks is the same. As a consequence, I find the entire expense is compensable. The total award for special damages is $1,063.92.
[109] Lastly, Ms Pelkinen claims damages for future care, including the cost of a structured exercise program, psychological counselling for her driving phobia, and prescription expenses. Psychological counselling was initially recommended by Dr. Pande; however, ICBC would not fund the treatment and Ms. Pelkinen could not afford the cost on her own. In his report dated June 30, 2007, Dr. Pande continues to believe this form of counselling may be beneficial for Ms. Pelkinen to help her regain confidence on the road. The cost of this counselling is between $100 and $130 per hour for twenty one-hour sessions. Based upon Dr. Pande’s evidence, I find this counselling is reasonable as a cost of future care and award $2,000 for this purpose.
[110] In regard to her physical recovery, Dr. Chu recommends a structured, active rehabilitation program to improve Ms. Pelkinen’s conditioning, strength and flexibility. He believes conditioning exercise will improve Ms. Pelkinen’s pain tolerance. Apart from Ms. Pelkinen’s testimony that a gym pass for one year costs $549, there is no evidence of the cost associated with a rehabilitation program that is developed by someone trained in this type of work. In addition, it is apparent that Ms. Pelkinen has already had the benefit of an exercise program developed by a kinesiologist but failed to follow it. In these circumstances, I find only a nominal award is appropriate. Ms. Pelkinen shall be entitled to the cost of a gym pass for one year ($549). This will provide her with a suitable location for doing the exercise routines that have already been designed for her.
[111] An amount for the future cost of medications is warranted based upon the reasonable expectation that Ms. Pelkinen will continue to suffer from the driving phobia into the foreseeable future. The average cost per year for prescriptions (from 2005 to 2007) was $237. Accordingly, I award $1,000 for future medical costs based on a requirement for accident-related medications for the next four years.
[112] Ms. Pelkinen is entitled to her costs.
SUMMARY OF DAMAGES AWARDED
[113] Ms. Pelkinen is awarded $81,000 for non-pecuniary damages, $22,700 for past wage loss, $60,000 for loss of earning capacity, $5,130 for housekeeping services, $1,063.92 for special damages, and $3,549 for future care. Ms. Pelkinen is also awarded costs of this action.
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The Honourable Madam Justice Bruce