2008 BCSC 782 Heppner v. Zia

Before: The Honourable Mr. Justice Cohen

Reasons for Judgment

Counsel for the plaintiff	T.L. Spraggs O. Wilson
Counsel for the defendants	D. S. Orsetti P.E. Levy
Date and Place of Trial/Hearing:	February 18 – 22, 25 – 29, March 3 – 7, 2008
	New Westminster, B.C.

I. THE CLAIM

a. The Plaintiff’s Position

[1] The plaintiff, Eva Heppner, claims damages for personal injuries she sustained in a motor vehicle accident that took place on January 18, 2004 (the “accident”), at the intersection of Garrett and Braid Streets in New Westminster, British Columbia. The plaintiff alleges that the defendant driver, Qasim Zia, is solely responsible for the accident and her accident related injuries.

[2] The plaintiff, who was 53 years old at the time of the accident, alleges that she has suffered and continues to suffer pain and discomfort to the extent that she is now permanently disabled from returning to her occupation.

[3] At the time of the accident the plaintiff was employed by the Royal Columbian Hospital as a nurse’s aid. She worked mainly in the operating room and patient care. She had held this position since 1990.

[4] The plaintiff returned to work on February 11, 2004. She continued in her employment until December 23, 2004 when her family doctor told her that she should take two weeks off. In fact, the plaintiff did not return to her employment after this date. She had planned to return to work in early March 2005 on a gradual basis, but following a fall in her home her condition deteriorated to the point where she was not able to resume her employment.

[5] The plaintiff seeks general and special damages, lost earnings and loss of housekeeping capacity.

b. The Defendants’ Position

[6] The defendants deny liability for the accident. They claim that the accident was caused solely, or in the alternative largely, as a result of the negligence of the plaintiff. They also claim that in the event they are found to be liable that the injuries sustained by the plaintiff were soft tissue in nature, were very amenable to treatment and should have resolved within one year of the accident.

II. LIABILITY

a. The Parties’ Versions of the Accident

The Plaintiff

[7] As mentioned, the accident took place at the intersection of Braid and Garrett Streets. Garrett is a residential side street with one lane of traffic in each direction running north-south. Braid is a major thoroughfare with two lanes of traffic in each direction running east-west. Braid slopes downhill to the east at a ten percent grade. Traffic proceeding north on Garrett is controlled by a stop sign at the intersection with Braid. The traffic on Braid is uncontrolled.

[8] The plaintiff completed her shift at the hospital at around 3:00 p.m. She was driving home in her 1993 Plymouth Sundance (the “plaintiff’s car”). She was driving north on Garrett, intending to turn right at the intersection of Garrett and Braid and then proceed eastbound on Braid. This a route with which she was very familiar.

[9] As the plaintiff approached the intersection she noticed a bus driving through the intersection proceeding eastbound on Braid. She stopped at the stop sign on Garrett and let the bus pass by. There is a retaining wall on the southwest corner of Garrett. The plaintiff drove her car forward to give herself a clear view of the traffic proceeding eastbound downhill on Braid.

[10] The plaintiff observed some traffic in the inside lane (the lane closest to the centre line). She did not observe any traffic in the eastbound curb lane. She did not observe any traffic signalling a lane change. She then proceeded to complete her right hand turn into the curb lane on Braid. She had completed her turn onto Braid before she was struck by the defendants’ vehicle, a white Dodge B 3500 Maxi two door cargo van (the “van”). She only saw the van a split second before the collision. She did not hear the squeal of tires or the honk of a horn.

[11] When the plaintiff saw the van she hit her brakes. The van struck her car and pushed it to the right. The plaintiff’s car made a 90 degree turn, ending up partially on the sidewalk and partially in the hedge of a property just east of the southeast corner of the intersection.

[12] In her cross-examination, the plaintiff repeated that she had made her right hand turn into the curb lane on Braid and that she was driving straight down the hill in the curb lane and that she did not see the van prior to the collision.

The Defendant Driver

[13] The defendant driver (the “defendant”) was 17 years old at the time of the accident. He had held an “N” class licence for about seven months. The van was owned by the defendant Leslie Edgelow, the father of his then employer, Douglas Edgelow.

[14] The defendant’s employer was seated in the front passenger seat of the van and another employee was seated in the rear. They were driving to a job site just east of the intersection where the accident took place. The job site was situated on the north side of Braid, but the defendant was intending to park the van on a side street to the south of Braid.

[15] According to the defendant, it was raining and the roads were wet. The traffic on Braid was not heavy. He was driving in the eastbound curb lane and changed into the inside lane to pass a slow moving vehicle.

[16] After the defendant passed the slow moving vehicle he changed back to the eastbound curb lane. He estimated his speed at 50-55 km/hr. The intersection before Garrett and Braid is at Fader Street and Braid. Between Fader and Garrett there is a bus stop sign on the south side of Braid (the defendant visited the accident scene two weeks before the trial and observed the bus stop sign). The defendant was fairly close to the bus stop sign when he had finished changing back into the eastbound curb lane. That is when he saw the plaintiff’s car pulling out onto Braid. He slammed on his brakes. At this point he was fully established in the eastbound curb lane.

[17] The defendant looked into his rear-view mirror when making his lane change. He was uncertain about whether the plaintiff’s car was moving or stopped when he first saw it.

[18] After the defendant slammed on his brakes, the van slid and collided with the plaintiff’s car. According to the defendant, the plaintiff’s car had pulled out in front of the van while he was driving in the eastbound curb lane. The defendant was not still in the process of changing lanes when the plaintiff’s car pulled out in front of the van. The van’s passenger side front bumper was the only part of the van that contacted the driver’s side door area of the plaintiff’s car.

[19] In cross-examination, the defendant conceded that he could not say if the bus stop sign he observed just before the trial was in the same place at the time of the accident. He also conceded that he was making a guess when he testified that the bus stop sign was the location where he made his lane change.

[20] The defendant denied that he was speeding or that he was driving dangerously. He said that he may have been driving slightly less than 55 km/hr, but estimated that 55 km/hr was at the top end of his speed.

[21] The defendant repeated that as soon as he changed into the curb lane the plaintiff’s car pulled out in front of him. He said that the reason he did not try and steer his way out of colliding with the plaintiff’s car was because he did not know whether there was traffic to his left in the inside lane. When confronted with his discovery answer that there was a vehicle in the inside lane to his left, he said that his discovery answer was probably not accurate.

[22] At his discovery the defendant said that he had traveled two to three car lengths after he completed his lane change until the accident happened. He also said that it was about two to three car lengths when asked how much time he had from the time he saw the plaintiff’s car until the impact took place. However, when confronted by these answers at the trial he changed his answer to say that he would guess four to five car lengths, explaining that at the time of the discovery he had not revisited the accident scene. He also testified that after he slammed on his brakes he slid three to four car lengths.

[23] The defendant did not have a specific recollection of signalling when he changed lanes just prior to the accident. He conceded that if an independent witness were to testify that he did not signal then he would agree that he did not.

[24] In re-examination, the defendant said that the questions he was asked at discovery about how far he had traveled after he had completed his lane change until the accident happened and how much time he had from the time he saw the plaintiff’s car until the accident meant the same thing to him.

b. The Other Witnesses on Liability

Mr. Bradley Heinrichs

[25] Mr. Heinrichs is an expert in the field of motor vehicle collision reconstruction. In his report to defence counsel dated December 20, 2007 he assumed, inter alia, that the defendant’s van was eastbound on Braid; that the plaintiff’s car was northbound on Garrett; that the plaintiff’s car began a right hand turn onto Braid eastbound; that the two vehicles collided in or near the intersection; and that the defendant’s van was braking at full capacity from impact to rest.

[26] Mr. Heinrichs simulated the accident using a software program that solves the physical equations governing motor vehicle motions. The vehicles were assigned trajectories consistent with potential pre-impact activities: the defendant’s van was either traveling straight through or changing lanes from left to right, while the plaintiff’s car was turning right; additionally, the plaintiff’s car had completed its turn, and was contacted by a merging defendant’s van. As a result of his analysis, Mr. Heinrichs concluded:

1. That the physical data is consistent with an impact between the plaintiff’s car in mid-turn and the defendant’s van traveling straight in the right eastbound lane;

2. That the physical data is not consistent with an impact between the plaintiff’s car established in the right eastbound lane and the defendant’s van merging right from the left eastbound lane.

[27] The impact speeds in the simulation where the plaintiff’s car was turning right and the defendant’s van was traveling straight were 26 km/hr for the defendant’s van, and 4 km/hr for the plaintiff’s car. The impact speeds in the simulation where the plaintiff’s car was established in the eastbound lane and the defendant’s van was changing lanes were 36 km/hr for the defendant’s van, and 11 km/hr for the plaintiff’s car.

[28] In cross-examination, Mr. Heinrichs calculated that it would take a motor vehicle traveling at 55 km/hr 0.6 seconds to travel 2 car lengths, and 0.9 seconds to travel 3 car lengths. He also calculated that it would take the defendant’s van 1.8 seconds to decelerate from 55 km/hr to 36 km/hr. He said that the number of feet traveled by a motor vehicle in 1.8 seconds is 67 feet (about 4 ½ car lengths). He also said that to decelerate from 55 km/hr to 26 km/hr would take 1.2 seconds, or 50 feet (about 3 car lengths).

Mrs. Barbara McKay

[29] Mrs. McKay witnessed the accident. She was driving on East Columbia Street heading towards Braid. The defendant’s van came up on her right side and turned into the curb lane on Braid, without signalling. She followed behind turning right into the curb lane on Braid. She then changed into the inside lane. The defendant was driving “quite erratically” and “quite dangerously, going in and out of traffic, back and forth between the lanes and he was not using his blinker.” She kept her distance from the defendant.

[30] According to Mrs. McKay it was pouring rain. She said that the defendant was driving in the inside lane and the plaintiff pulled out to make her turn. She testified that “it was clear for her to pull, make a right onto the inside lane [sic], and at the same time the white van came over and hit her when she was turning and pushed her into the front yard.”

[31] Mrs. McKay testified that the defendant was exceeding the speed limit. She was driving at the speed limit, or maybe slower, and the defendant was driving faster than she was. She said that when the defendant collided with the plaintiff the plaintiff was “maybe ten feet from the corner she was around and that’s when he pushed her into the side of the yard.” She said that at the time of the collision the plaintiff was still in the process of turning, stating “maybe her tail wasn’t quite around the corner when [the defendant] hit her on the door.” When asked if she ever observed the defendant’s car signal, she answered, “Not at all.”

[32] In cross-examination, the witness testified that she was about a block behind the defendant when she witnessed the accident. She conceded that she could have been driving at 40 or 45 km/hr.

Mr. David McKay

[33] Mr. McKay was a passenger in Mrs. McKay’s car. She is his mother. They were on their way to purchase groceries when he witnessed the accident. As they were driving on East Columbia Street Mr. McKay commented to his mother that the defendant’s van was tailgating them. When they got to the intersection of East Columbia and Braid his mother turned into the curb lane on Braid. The defendant’s van pulled in behind them and tried to go around them in the inside lane but by this time Mrs. McKay had already changed into the inside lane. The defendant’s van then immediately pulled back into the curb lane and passed the McKays’ car. The defendant then changed back into the inside lane driving in front of the McKays.

[34] According to Mr. McKay it was raining heavily and the roads were wet. The weather conditions did not impair his visibility.

[35] Mr. McKay said that the hill on Braid is “fairly steep.” His mother was driving at 50 km/hr. The defendant was driving at least at 60 km/hr or more and was accelerating quite quickly. He did not see the defendant signal before changing lanes.

[36] When the McKays approached the intersection at Fader and Braid Mr. McKay noticed the plaintiff turning right. He said, “like she was already turning.” He also said that, “she was in motion of turning and at that time the driver of the van had made a lane change into the outside lane, and after that he hit her.” He testified, “It was almost simultaneously, like there wasn’t really much time in between the accident and the time of him changing lanes.”

[37] Mr. McKay did not see the defendant signal a lane change. He said, “Almost immediately after he had switched lanes she had stopped and he had hit her, like…she knew – well, I can’t say she knew, but it’s almost like she knew it was going to happen.” When counsel asked the witness if the plaintiff made a turn and then stopped, he replied, “Yeah, because she seen him coming at her.” When counsel asked the witness, “The van struck this vehicle turning, made a lane change from the inside lane closest to the centre line, almost instantaneously into the red vehicle?” the witness said, “That’s correct.”

[38] When counsel asked the witness to place an “x” on a photograph of the accident intersection at the point where he observed the defendant start his lane change, the witness said that the defendant was about halfway down the hill “from the light” when his lane change started. Counsel then asked the witness if he knew approximately how many feet it would have been to the intersection on Garrett and the witness replied, “100 feet, maybe 150 feet.” After some discussion between counsel, the witness said, “I’m not sure I understand the question fully though. Are you trying to gauge distance from the intersection at the lights or from where he made the lane change?” He also said, “I thought you meant from the intersection.” He then said, “Probably 80 feet.”

c. The Arguments

The Plaintiff

[39] Counsel noted the plaintiff’s evidence that she did not see the defendant’s van until he was right on top of her. He said that this evidence was consistent with the evidence of Mr. McKay who testified that the defendant made his lane change 80 feet west of Garrett after the plaintiff had already started her turn into the curb lane on Braid and that the defendant did not signal a lane change.

[40] Counsel said that it was also consistent with the defendant’s discovery testimony that he was basically in the middle of his lane change when he first saw the plaintiff’s car.

[41] Counsel argued that although the defendant attempted at trial to change his discovery evidence where he estimated that he had about two to three car lengths of time from when he saw the plaintiff until the impact took place, to say that it was four to five car lengths, the evidence confirmed the plaintiff’s submission that the defendant made an unsafe lane change without signalling when he could see that the plaintiff’s car was turning into the eastbound curb lane on Braid. Counsel also submitted that the defendant not only made an unsafe lane change but that he was driving at an unsafe speed, especially given the fact that he was proceeding down a steep hill on a wet road. Counsel contended that this resulted in the defendant losing control of the van when he slammed on the brakes.

The Defendants

[42] Defence counsel pointed out that in cross-examination Mrs. McKay agreed that her estimate of the speed of the defendant’s van was based on the fact that he had gained some ground on her car as they proceeded down the hill on Braid. She also conceded that she could have been driving as slowly as 40 to 45 km/hr and not the speed limit as she said in chief (Mr. McKay said that he would defer to his mother’s estimate of speed).

[43] Counsel contended that given Mrs. McKay’s evidence it was entirely possible for the defendant to gain ground on the McKay car at the rate of up to 10 km/hr without exceeding a speed of 50 km/hr. He also contended that if Mrs. McKay was driving at 40 to 45 km/hr then the defendant may only have been going 50 to 55 km/hr taking into account the speed differential, which would be consistent with the estimate he gave of his speed.

[44] Defence counsel also noted that when Mrs. McKay marked the point on a photograph of the intersection scene where she recalled the plaintiff’s car to be just prior to impact, she drew a line several feet back from Braid on Garrett. Counsel submitted that this indicated that the witness was of the view that the plaintiff’s car was still on Garrett in mid-turn when it was struck by the defendant’s van. Counsel also said that if one compares the point marked on the photograph by the witness with the diagram she drew at the time she provided her statement on July 1, 2004, it confirmed that in her view the defendant’s van was far enough over in the curb lane to contact the plaintiff’s car while it was still significantly on Garrett. In addition, counsel said that this evidence would show that the witness positioned the parties’ vehicles in the same position as the crash simulation diagram contained in Mr. Heinrichs’ report in the scenario where the defendant’s van is established in the curb lane, and the plaintiff’s car pulls out in front of the defendant.

[45] Counsel argued that nowhere in the testimony of Mr. McKay did he state that the defendant was still changing lanes when his van struck the plaintiff. He said that Mr. McKay always allowed that there was some time between the defendant’s lane change and the accident, although he did say it was a short amount of time.

[46] Counsel submitted that Mr. McKay’s evidence was consistent with that of Mr. Heinrichs, namely that the plaintiff was in mid-turn and the defendant established in the curb lane at the time of the accident.

[47] Counsel referred to the evidence of Mr. McKay where he marked on a photograph of the intersection scene the point where the defendant started to make his lane change. The witness testified that the defendant started his lane change, “About half way down from the light is where he was.” The witness was referring to the light at the intersection of Fader and Braid. Counsel also noted Mr. McKay’s evidence that it would have been 100 to 150 feet from the intersection of Garrett and Braid to where the defendant made his lane change (counsel argued that this estimate should be preferred over that of Mr. McKay’s estimate of 80 feet, which counsel said came as a result of a leading question).

[48] Counsel then referred to the evidence of Mr. Brian Dempsey, a private investigator hired by the defence to take measurements of the accident intersection. He testified that the distance from the eastern edge of Fader to the eastern edge of Garrett was 280 feet. One half of this distance is about 141 feet, which counsel noted was within the range of the estimate given by Mr. McKay of 100 to 150 feet.

[49] Counsel submitted that if the width of Garrett is subtracted from the measurement between Fader and Garrett, that is if the measurement is taken from the eastern edge of Fader to the western edge of Garrett (taking off the 26 foot width of Garrett), then the distance is 257 feet. Counsel noted that one half of 257 feet is 128.5 feet. Counsel submitted that this was almost the exact middle of the range of 100 to 150 feet estimated by Mr. McKay.

[50] In the result, counsel argued that the two estimates given by Mr. McKay of the distance from Garrett when the defendant made his lane change were consistent.

[51] Counsel also submitted that Mr. McKay’s estimates were also consistent with the calculations of braking distances made by Mr. Heinrichs. Counsel referred to Mr. Dempsey’s measurements from the centre line on Garrett to the western curb of Garrett at 13 feet. Counsel said that traveling an additional 54 feet up Braid would put one at approximately 67 feet before the centre line on Garrett.

[52] Counsel said that while the defendant’s estimates of how many car lengths he was from the intersection when he first saw the plaintiff’s car may not be reliable, his version of the events in narrative form were consistent with the evidence of the McKays and Mr. Heinrichs.

[53] Counsel contended that if the defendant’s lane change was observed by Mr. McKay more than 100 feet before Garrett, then the defendant’s van was there to be seen by the plaintiff as she was preparing to make her right hand turn onto Braid. He argued that her failure to see the defendant constituted negligence on the part of the plaintiff.

[54] Moreover, counsel said that the defendant was most likely driving at or near the speed limit, and that he made a permissible lane change as he approached the middle of the block between Fader and Garrett. Counsel contended that this lane change was evident and observable even if the defendant did not signal his lane change and that any failure on his part had no bearing on the plaintiff’s position because according to her evidence she did not see the defendant’s van until a split second before the collision.

d. Decision

[55] First, I find that the plaintiff’s failure to observe the presence of the defendant’s van proceeding eastbound in the curb lane on Braid constitutes negligence on her part.

[56] Section 175(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, provides, as follows:

Entering through highway

175(1) If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a) the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b) having yielded, the driver may proceed with caution.

(2) If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway.

[57] In Keen v. Stene (1964), 44 D.L.R. (2d) 350 (B.C.C.A.), the Court dealt with the issue of what constitutes an “immediate hazard”. At p. 359, Davey J.A. said, “…an approaching car is an immediate hazard if the circumstances are such as to require the driver of that car to take some sudden or violent action to avoid threat of a collision if the servient driver fails to yield the right-of-way.”

[58] In my opinion, the plaintiff was not keeping a proper lookout. I am satisfied, and find, that at the time the plaintiff began to make her right hand turn into the eastbound curb lane on Braid, after moving forward from the stop sign on Garrett, that the defendant’s van was there to be seen traveling in the eastbound curb lane of Braid. I am also satisfied, and find, that the defendant’s van was sufficiently close to the intersection of Garrett and Braid when the plaintiff began to make her right hand turn into the curb lane on Braid that the defendant’s van constituted an immediate hazard. The evidence I rely upon for these findings is as follows.

[59] I am satisfied, although contrary to her evidence, that just prior to the collision, the plaintiff was in the process of making her right turn into the eastbound curb lane on Braid. I do not accept her testimony that she was established in the eastbound curb lane on Braid at the time of the accident. I find that the plaintiff is wrong in her recollection of this important detail.

[60] Mrs. McKay testified that when the defendant collided with the plaintiff, the plaintiff was still in the process of turning. In her statement made in July 2004, she said that the plaintiff’s car was partially turned into the curb lane and that the defendant’s van collided with the car that was partially turned into the curb lane. The diagram attached to her statement placed the plaintiff’s car partially turned into the curb lane on Braid.

[61] Mr. McKay testified that the defendant collided with the plaintiff while she was in the motion of turning. He also agreed with the diagram that Mrs. McKay drew showing the position of the vehicles at the time of the collision.

[62] The evidence of the McKays on this point was uncontradicted.

[63] Finally, Mr. Heinrichs’ analysis led him to conclude that the plaintiff’s car was in “mid-turn”.

[64] I turn next to the evidence of the distance that the defendant was from the intersection of Garrett and Braid when he changed lanes.

[65] The plaintiff’s evidence was that she did not see the defendant’s van until a split second before the accident so she could be of no assistance on this point.

[66] The defendant significantly changed his evidence on this point from his discovery to the trial. He conceded that he was not good at estimating distances and, in any event, I find that his evidence on this point is completely unreliable.

[67] I am satisfied, and find, that the defendant’s van was not more than 80 feet west of the intersection when the defendant made a lane change from the inside to the curb lane and that he did so without signalling his move.

[68] I base my finding on the evidence of Mr. McKay. Initially, in chief, Mr. McKay estimated that the defendant was 100 to 150 feet west of the intersection when he changed lanes. However, he then changed his estimate to 80 feet because he said that he had misunderstood the question from counsel. I accept his evidence of 80 feet and I do not agree with defence counsel that his answer came as a result of a leading question.

[69] The next issue for me to consider is whether or not any negligent conduct contributing to the cause of the accident is attributable to the defendant. On this issue I am mindful of the words of Hood J. in Rohmann v. Moffat, [1996] B.C.J. No. 148 (S.C.) (QL) where, at para. 42, he said, in part, “In my view there is a heavy onus on the driver of a vehicle changing lanes on a highway, and perhaps even more so in the middle of an intersection, to assure that the movement can be made in safety.” In para. 43 Hood J. posed the question this way:

Can he be found to be in breach of a duty owed to the plaintiff, and in relation to his own lane, which was never obstructed until it was entered by the plaintiff’s vehicle? His duty to the plaintiff was to exercise such care as a reasonable man should do under the circumstances. And he was entitled to proceed toward the intersection in his unobstructed lane on the basis that the plaintiff would observe the law. It seems therefore that the question narrows down to this, whether in the circumstances, which he knew or ought to have known, the possibility of danger emerging therefrom should have been reasonably apparent to him.

[70] I find that at the time that the defendant changed lanes on Braid from the eastbound inside lane to the curb lane, 80 feet west of the intersection of Garrett and Braid, the plaintiff had already left the stop sign on Garrett and was in the process of making a right hand turn into the eastbound curb lane on Braid. I find that in making his lane change at this point on Braid the defendant was in such close proximity to the plaintiff’s car that his lane change could not be made safely. The weight of the evidence leaves no doubt that the defendant’s van was far too close to the plaintiff’s car for the defendant’s change of lanes to be made safely.

[71] Mr. McKay testified that the plaintiff was in the motion of turning and “at that time” the defendant made a lane change into the curb lane and collided with the plaintiff’s car. His observation was that it was almost “simultaneously”, that there was not much time between the defendant changing lanes and the collision. He also said it was immediately after the defendant changed lanes that the defendant’s van collided with the plaintiff’s car.

[72] Thus, I find that the defendant made his lane change from the eastbound inside lane to the curb lane at virtually the same time as the plaintiff was in the process of making her right turn into the eastbound curb lane on Braid.

[73] I also find that the defendant was not keeping a proper lookout. The defendant said that he first saw the plaintiff’s car when he was making his lane change. Obviously the plaintiff was there to be seen as she begun the process of making her right turn into the eastbound curb lane on Braid before the defendant began to make his lane change. In these circumstances, “the possibility of danger emerging therefrom should have been reasonably apparent to him”.

[74] I find that had the defendant been keeping a proper lookout he could have avoided the accident by slowing his speed and remaining in the inside lane until the plaintiff had completed her turn and then he could have changed lanes. I should add that the defendant’s explanation for why he did not try to avoid the accident by moving back into the inside lane was completely unconvincing. He testified that the reason he did not steer out of the collision was because he did not know what the traffic situation was to his left. However, at his discovery, when asked whether after he changed lanes there was a vehicle beside him on his left he answered “yes”. When asked if this answer was correct he said that at the time he pictured in his head that there should have been a vehicle behind him when he was in the inside lane. He then said that his discovery evidence was probably not accurate.

[75] The surrounding circumstances of the accident, which I accept from the testimony of Mrs. McKay and Mr. McKay, are that it was raining heavily; that just prior to the accident the defendant was driving dangerously, meaning that he was moving from lane to lane on Braid without signalling; and that he was driving at a rate of speed in excess of the speed limit. These circumstances, which serve to inform my understanding of what caused the accident, when taken together with the other findings I have made from the whole of the evidence, lead me to reasonably conclude that the defendant was also guilty of negligence that contributed to the cause of the accident.

[76] In the result, I find that liability for the accident should be apportioned 50/50. I do not think it can be found that blame for the accident rests more with one party than the other. In my opinion, they are equally guilty of breaching the rules of the road.

III. DAMAGES

a. The Plaintiff’s Position

[77] The plaintiff’s position on damages is that her initial injuries developed into low back pain within several weeks after the accident and that since that time her health has deteriorated to the point where she is now permanently disabled, not only from her occupation as a nurse’s aid but from any other employment at a competitive level.

[78] In his report to plaintiff’s counsel dated September 19, 2007, Dr. Christopher Cooke of The Work Evaluation Center Inc. performed a detailed independent work capacity evaluation of the plaintiff. Dr. Cooke concluded that the plaintiff continues to be disabled from work by her pain levels and by her behavioural response to pain. He said “She may benefit from referral to a pain center [sic] to help her deal with the physical, emotional and behavioural response to pain, to provide her with more coping strategies for the future.”

[79] In her medical/legal report dated November 4, 2005, the plaintiff’s family doctor, Dr. Margret Budzianowska-Kwiatkowski (“Dr. Kwiatkowski”) states, as follows:

Diagnosis:

1) New large left central parracentral disc herniation posterior to the L5 vertebral body secondary to new onset degenerative L5/S1 disc change. This would be rated severe.

2) Left L5/S1 nerve root compression, also rated severe.

3) Milder degenerative changes at L3/L4, L4/L5 levels with early neural foraminal stenosis at L4/L5 and L5/S1, which are rated moderate to severe.

4) New onset degenerative CT spine changes rated moderate.

5) Musculoskeletal changes within the left side of her body, left arm, left chest, left hip and left leg, resolved within a week or two after the motor vehicle injury, rated mild.

6) Iatrogenic hypertension secondary to COX-2 inhibitor use for the treatment of the patient’s back injuries.

Functional Status:

In spite of the patient’s excellent spirit, quick return after the motor vehicle accident, extreme compliance with all physical modalities in treatments, and extreme compliance with her medications, the patient has deteriorated to the point that within eleven months after the injury she became completely disabled. The patient’s C-spine and L-spine took the entire tole [sic] of the patient’s final injuries. As of October 4, 2005, this patient is totally disabled from work and all other recreational home activities. She is deprived of having any possible leisure activity or any other activity without pain. Her marital life and social life are all affected by her injuries.

[80] In her report dated December 18, 2007, Dr. Kwiatkowski states:

In summary, due to the motor vehicle accident, this patient developed severe disability within the neck and lower back area. She lost her job and is unable to work in any capacity due to her disabling condition right now. The patient has difficulty walking, difficulty sitting and difficulty standing. She has pain in any position she is in, in both neck and lower back area. The pain is often migrating to her legs in the form of sciatica. She also has pain radiating to her arms and musculoskeletal pain in her left shoulder that was injured in the motor vehicle accident. The patient’s life was affected in all planes including her work, leisure activities, her home life, and her activities outside of home. This is very unfortunate that we are running out of treatment options for this extremely positive and hard-working nurse’s aid that helped and gave hope to so many people in the Operating Room in her productive life.

[81] In his report dated January 12, 2008, Dr. Simon Hearn, a registered psychologist, addressed the plaintiff’s emotional state, as follows:

In my opinion, she is currently suffering from Major Depressive disorder, which I believe was caused by the accident and which has grown steadily worse since it occurred, affecting her functioning in numerous ways. In particular, Ms. Heppner feels hopeless about her future prospects and entertains, fairly often, fantasies of dying without actually formulating a suicide plan. These ideas are understandable, as she is now living with constant and severe pain in various sites of her body; she has lost a job she loved, and the friends and social life that came with it; she cannot endure standing, or sitting or walking for more than short periods or [sic] time, and lying down brings pain as well. Her contacts with her children and grandchildren have been greatly compromised, as there are so many activities she can no longer participate in, and because her moods are often low. Ms. Heppner’s sleep has been greatly diminished and impaired by both pain and depression, and insomnia, over time, contributes more and more to daytime fatigue, irritability, loss of energy and motivation. In this way, pain and depression compound each other in Ms. Heppner.

…

I would also recommend that Ms. Heppner engage in ongoing counselling. This counselling should address not only her depression, but the driving anxiety she has experienced since her accident, and ideally, Eye Movement Desensitization and Reprocessing (EMDR), to help her overcome the memories of the accident to the extent that they were traumatizing. Although she does not meet all diagnostic criteria for Post Traumatic Stress Disorder, Ms. Heppner does show some signs of it. She can still become shaky when the accident is described. She has a lot of inhibitions about driving, and as a result has been far more housebound than she was pre-accident. She worries whenever her family members are not safely home, until they check in with her. In addition, Ms. Heppner avoids all scenes of violence, accidents, disasters, etc., on TV, and in this way shields herself from reminders of her own very disturbing accident. The collision and its aftereffects are still having a profound influence on her current state.

Ms. Heppner does not appear to have suffered neurologically or cognitively from the accident. Though she does have major problems with concentration and working memory, and cannot focus on much for long, this problem is likely attributable to the effects of pain, depression, and constant rumination about her post-accident situation. Having said that, if the concentration problems persisted after the depression lifted, reassessment of possible MBTI [sic] would be advisable. At present, neuropsychological testing would not be able to separately identify the effects of pain, depression, and head injury with much certainty.

[82] The plaintiff contends that all of her physical and emotional injuries that have led to her pain and suffering, the fact that she had to undergo back surgery and the fact that she is now permanently disabled from her employment are due to the accident. She seeks non-pecuniary damages in the range of $175,000 to $200,000; past wage loss in the amount of $82,136; special damages of $5,581.78; future cost of care in the amount of $38,073.65; loss of housekeeping capacity in the amount of $58,144.85; and future loss of earning capacity in the range of $107,330 to $200,000.

b. Summary of Medical Evidence

Pre-Accident Work Related Medical History

[83] Since commencing her employment at the Royal Columbian Hospital in 1990 as a nurse’s aid, the plaintiff has sustained many work related injuries.

[84] In early 1997, while pulling a bed with a co-worker, the plaintiff injured her right knee. The plaintiff took physiotherapy treatments for a month and returned to work without limitations.

[85] In the spring of 1998, the plaintiff injured her left ankle. Around the same time the plaintiff complained of pain in her right hip. She was diagnosed with bursitis and prescribed anti-inflammatory drugs, which resolved the complaint.

[86] In the fall of 1999, the plaintiff complained of pain in her mid back. She was diagnosed with lumbar spasm. She started work conditioning on October 14, 1999. In November of that same year she was discharged from the work conditioning program and returned to work without limitations.

[87] In May 2000, the plaintiff was washing x-ray aprons when she felt a gradual pain in her low back. She had difficulty standing and walking. She experienced pain for several weeks. On July 21, 2000 she underwent a CT scan of her lumbar spine. The x-ray showed a central posterior disc bulge at the L4-5 with mild impingement on the thecal sac. The x-ray also showed that at the L5-S1 there was a mild vacuum disc phenomenon in keeping with early degenerative change. It was noted that no focal disc herniation or spinal stenosis was seen at this level.

[88] In the report of Dr. Richard Chan, a neurosurgeon, dated September 26, 2000, he reported, as follows:

I saw Eva in the office on September 26^th, 2000. She is a 50-year-old, right-handed woman who presented with a history of low back problems. According to the patient she worked as a porter in the Columbian Hospital. She first injured her back in September 1999. This occurred at work. She did not have any back problems before that. According to the patient, she was portering a patient when she developed low back pain. She was off work for about two months. With conservative treatment the symptoms improved. She subsequently returned back to work.

On May 14^th, 2000 she was at work. She lifted an x-ray apron and was wiping them to clean them up when she developed the acute onset of low back pain. The legs were fine. There was no numbness or weakness. No bowel or bladder disturbance was reported. She went for physiotherapy. Currently she is in a rehab. programme. She had good and bad days. Over-all she had about 60% improvement.

[89] A discharge summary report indicates that the plaintiff was discharged December 7, 2000 and declared fit to return to work with limitations.

[90] A physician’s report dated March 19, 2001 indicates that the plaintiff complained of pain in her mid and low back. She was very tender in the L4-L5 area. The report states that the plaintiff was bending down to open a drawer on a cart and felt a sharp pain in her low back. On March 26, 2001 the plaintiff reported to the physician that her low back was slightly stiff but otherwise almost 100% better.

[91] The last physical examination the plaintiff had prior to the accident was with Dr. Kwiatkowski. She saw the plaintiff on December 13, 2002 and found that her musculoskeletal examination was completely normal with respect to her neck and back.

Post-Accident History of Low Back Pain

[92] The first complaint of low back symptoms after the accident was made by the plaintiff to her physiotherapist during a treatment on March 29, 2004. The note made on March 29, 2004 by the physiotherapist, Mathi Marimuthu of Port Coquitlam Physiotherapy and Sports Injury Clinic, states, “Last 2/7 LB sprain fr. bend fwd.” In cross-examination, the physiotherapist indicated that the motion of bending forward he noted on March 29, 2004 was the same motion as the notation he made in his records on March 21, 2001, when he wrote that she bent 30 degrees to open a door at work which brought on low back problems. The defence argues that the fact that low back symptoms were initiated with the same type of motion that had brought it on before the accident, and that it did not occur until two and a half months after the accident, suggests that it occurred independently of the accident.

[93] At her visit to Dr. Kwiatkowski on March 30, 2004 the doctor noted “Unfortunately pain has now moved from her neck to the lower spine. On exam she has paraspinal muscle spasm coming from the upper thoracic area to the lower L-spine area.” This was two and a half months following the accident and about one and a half months after the plaintiff returned to her physically demanding job as a nurse’s aid.

[94] In his note made on April 20, 2004, the physiotherapist wrote, “S. LB much better”. Dr. Kwiatkowski’s clinical records note that the plaintiff complained of low back symptoms only for March 30, 2004 and April 19, 2004, when the doctor wrote, “She is having a lot of stiffness. On exam her muscles are completely stiff all over her back from neck to L-spine, stiff shoulders, she is having somewhat decreased mobility.” The next note of low back symptoms was made by Dr. Kwiatkowski in her record of June 25, 2004 when she wrote, “On office examination patient has difficulties with range of motion in all directions of her lower and upper back.”

[95] The physiotherapist’s records note that on her visit to the clinic on June 15, 2004 she told the physiotherapist that she drove to Kelowna over the weekend. He noted, “++ sitting sore to LB…” The physiotherapist testified that the plaintiff told him she was doing a lot of sitting during the drive. Defence counsel noted that in cross-examination when the plaintiff was asked about this entry she indicated that she had a bed in the back of the family van and that she did very little sitting and lay down for a lot of the trip but still experienced a sore back. Counsel noted that this is not consistent with the note made by the physiotherapist.

[96] From about February 11, 2004, when the plaintiff returned to her job at the hospital, to the middle of June, the plaintiff performed her regular duties as a nurse’s aid. Dr. Kwiatkowski, who practices at the same hospital, testified that based on her observation of the plaintiff at work that the plaintiff worked just as hard after the accident as she had before the accident. Defence counsel noted that the plaintiff undertook her physically demanding duties with no complaint of low back symptoms, other than those noted in March, April and June, 2004.

[97] When the plaintiff saw Dr. Kwiatkowski on September 13, 2004, she told her that she was off work for the month of August and that she was starting to do much better. The doctor wrote, “Unfortunately for the last two weeks she has picked a lot of shifts. The hospital is extremely busy. She has started to develop decreased mobility of her upper back, lower back and her neck.” Defence counsel noted that at this point there is no mention of symptoms associated with a herniated disc, such as pain radiating into the plaintiff’s leg. However, on her visit to Dr. Kwiatkowski on September 24, 2004 the doctor recorded that the plaintiff’s lower back was extremely stiff. She wrote, “All of the muscles are spastic, deep and superficial paraspinal muscles. She is tender everywhere. At this point she may be slowly developing disc problems in these areas, secondary to on and off severe muscle spasm after the MVA.”

[98] On November 10, 2004, Dr. Kwiatkowski wrote that the plaintiff attended at her office “with significant worsening of her back problems…she works a lot recently and she is heavy lifting in the operating room and doing other significant jobs which don’t help her back.”

[99] On December 23, 2004 the plaintiff attended at Dr. Kwiatkowski’s office. The doctor wrote, “She has been pushing and doing a very hard physical job, she has been overworked. Now she is having significant radicular pains going down to her shoulder and right elbow…. Otherwise her lower back is also extremely spastic. She is having difficulties walking, she is walking with a wide gait, very unstable. At this point the patient will be taking time off work. I am sending her off for two weeks….”

[100] When the plaintiff attended Dr. Kwiatkowski’s office on January 5, 2005, the doctor made a note that the plaintiff was “barely able to walk. She has severe sciatica on the left side.” The plaintiff attended at her doctor’s office on January 20, 2005 and February 3, 2005, but the next note relating to the plaintiff’s complaint of low back symptoms was during her visit on March 4, 2005. The doctor noted that the plaintiff was doing some activity with her grandchildren and unfortunately got extremely sick. She had lower back pain, upper back pain and pains radiating to the left leg. The doctor noted that, “At this point Eva is contemplating slow return to work. We will try just gradual return for two weeks before she comes back to work. She will do four hours a day starting March 8^th to March 22^nd…”

[101] On March 5,2005 the plaintiff fell down the stairs in her home. When she saw Dr. Kwiatkowski on March 7, 2005 the doctor wrote, “Unfortunately she fell down on Saturday and had severe injury. On examination she has severe spasm of her back, neck and arms. The left arm is showing bruises of about 15-20 cm in diameter in early stages of bruising with a lot of pain. This patient is extremely stiff in the morning due to her MVA and subsequent poor recovery. She is having difficulty mobilizing in the morning and that has caused this accident, walking the stairs she was so stiff that she had to hold to something to not lose balance and she eventually fell down with severe injury to her left arm. Her modified return to work will therefore be postponed from starting tomorrow to next week …”

[102] When the plaintiff visited Dr. Kwiatkowski on March 14, 2005 the doctor wrote, “She has thrown her back out last week and developed severe sciatica on the left side. She is having difficulty walking, difficulty sitting, lying down, etc. She will require another CT to assess for discs in her spine….She has been deteriorating steadily since her accident and I don’t think she should go back to work this time….”

The Plaintiff’s Disc Herniation

[103] On September 24, 2004 the plaintiff underwent a CT scan, which reported that there was a mild disc narrowing at the L4-5, and to a lesser extent at the L5-S1 levels. “Biconcave end plate deformities are seen from L2 through to L5. The S1 joints are felt to be normal. The alignment is intact.” In the summary section the report states that there were mild degenerative changes seen in the last two lumbar disc spaces but no identified vertebral injuries. “The minimal degenerative changes in the lumbar spine were not evident on our previous study in September, 1999.”

[104] On October 29, 2004 the plaintiff had another CT scan. It reported that at the L4-5 there was a minor loss of disc height with a mild generalized disc bulge that does not cause any significant central canal stenosis or foraminal stenosis. The facet joints appeared normal. With respect to the L5-S1 it mentioned that the disc height was relatively well maintained but posteriorly there was slight narrowing associated with small osteophytes and a mild disc bulge. “This does not, however, cause any central canal stenosis and the exiting L5 nerve roots and descending S1 nerve roots are clear. The facet joints appear normal.” In the conclusion section the report states, “No disc herniation has been demonstrated. Minor bulges at L4-5 and L5-S1.”

[105] A CT scan taken on January 17, 2005 again showed that the facet joints appeared normal and concluded, “Unremarkable cervical spine CT examination.”

[106] The physiotherapist’s report dated January 24, 2005 states the plaintiff’s main concerns are her neck and low back strain. He concluded that the plaintiff would benefit from the “Modified Active Post MVA Program” to address her problems and that she would especially benefit from improving her general conditioning, which would help her in the heavy requirement of her work. In his February 16, 2005 report he noted that the plaintiff had shown some improvements after three weeks in the program and that there was progress in her neck and low back range of movement with a recommendation of gradual progression of exercises and to complete the six weeks of the program. In his March 21, 2005 report he mentioned that the plaintiff would benefit from a three month gym pass so that she could continue her exercises on her own.

[107] A CT scan report dated April 1, 2005 states, as follows:

L5-S1: Mild annular disc bulge. A large focal central/left paracentral disc herniation is demonstrated which appears to arise from the degenerate L5-S1 disc and extends superiorly over a distance of 2 cm posterior to the L5 vertebral body. This lesion appears new when compared to the previous examination and is resulting in compression of the left L5 nerve root within the lateral recess and the left S1 nerve root centrally. The disc extends 7 mm posterior to the L5 vertebral and is resulting in reduction in AP spinal canal diameter to 13 mm. Early bilateral neural foraminal stenoses demonstrated however the exiting L5 nerve roots appear free of compression.

SUMMARY:

New large left central/parracentral disc herniation posterior to the L5 vertebral body which appears to be continuous with the degenerative L5-S1 disc. Resultant compression of the left L5 and S1 nerve roots centrally is demonstrated likely accounting for the patient’s symptoms. Mild degenerative disc disease at the L3-4 and L4-5 levels and early neural foraminal stenosis at L4-5 and L5-S1 unchanged from previously.

[108] On October 26, 2005 Dr. Andrew Sak Yu Lee, a neurosurgeon, performed a lumbar discectomy L5-S1 on the plaintiff’s left side. The herniated disc fragments were removed. Her surgery was uneventful and her postoperative course was uneventful. She was discharged from the hospital the next day.

c. Summary of the Evidence of the Lay Witnesses

The Plaintiff

[109] Following the collision, the plaintiff was taken to the Royal Columbian Hospital by ambulance. She said that while sitting in her vehicle, she did not feel hurt, but when she was climbing out of her vehicle, she could not stand, her left leg was very sore, and her left side was very sore, including her hip and torso. She had glass in her hair, which was still there three to four days later, and had cuts on her face and bruises on her left side.

[110] She spent about four to five hours in the hospital and then was released. While at the hospital, all of the left side of her body hurt.

[111] The plaintiff went to see her family doctor on January 20, 2004. She was prescribed some muscle relaxants. These did not help alleviate her symptoms. She already had lots of pain in her neck, leg, left arm and torso.

[112] Her doctor told her to stay off work for two weeks. After two weeks, the plaintiff wanted to go back to work and did so on February 11, 2004. The plaintiff testified that when she went back to work she was still in pain.

[113] At the beginning, both sides of her neck were very sore, she experienced pain in her jaw, and her upper back was very sore. Her leg started to feel better. The pain in her upper torso went away a few weeks after the accident and the right side of her neck got better after two to three months. However, the left side of her neck got worse. The plaintiff testified that she felt pain in her hips on the same day as the accident. After a few weeks it got better but then got more painful four or five months after the accident.

[114] From February 2004 to December 20, 2004, she went to see her doctor and told her doctor that she was feeling better. She told her physiotherapist that she was feeling better. The pain and stiffness went up and down. She had some good and some bad days. However, she testified that by December it was much worse. At that point, she went to see her doctor and her doctor told her to stay home for two weeks. She was booked for Christmas and Boxing Days when she would receive double pay, but she lost this pay. After two weeks the doctor said she should stay home another two weeks.

[115] While she was still off work, the plaintiff had a fall in March of 2005. She said she was going down some stairs in her home, and on the first step her left leg gave up on her and she hit the wall with her arm and sat down on the stair. She bruised her arm when her arm hit the wall.

[116] Prior to the accident the plaintiff had no slips or falls on stairs. The plaintiff testified that she was not doing anything unusual; the fall occurred in the morning when she was very stiff. She would usually have to take a shower and then do some stretching so she could walk.

[117] Prior to this incident, she had been having problems with her hip and legs. She believed she mentioned it to her doctor. She was on pain killers all the time, so she does not recall if the doctor prescribed it especially for that.

[118] Her left arm was bruised as a result of the fall. It went away in a few weeks. Apart from that, she testified that she has had no other injuries since the accident.

[119] Later in 2005, the plaintiff had pain in her left leg again. It was very painful such that she could not sleep or walk. She went to see Dr. Lee, a neurosurgeon. He recommended surgery for a herniated disc and she went for surgery in October, 2005. As a result of the surgery, she was in hospital for two days. She recovered within two to three weeks and hoped to go back to work. The surgery alleviated pain in her leg, but not the pain in her back.

[120] The plaintiff testified that as of the date of trial, she still has lots of pain on the left side of her head behind her ear, in her shoulders, her upper arms, her mid back, her low back, her hips and she has a hard time walking. The front halves of both legs also bother her. The pain is constant and is always there in her neck, back and hips. Her hips are the most significant area and so sore that she has trouble walking. She is afraid she will end up in a wheelchair.

[121] The plaintiff said that she has lots of pain in her lower back. This lower back pain developed a few months after the accident and she believes she has a lower back injury. She has upper back pain if she bends. The plaintiff explained that at the beginning when she complained about her back she did not say upper or lower, she just complained about her whole back and neck. Now she knows more about it.

[122] She also feels like the muscles in her neck have shrunk and that she has suffered a muscle injury. She described the pain in her upper arms as extreme, and getting worse. Her arms become numb, an example being she was pushing a shopping cart and could not feel her arms. She has headaches every day on the left side of her head.

[123] The plaintiff says she has not been without pain for four years. It is a good day when she can turn her head without screaming. On the day she testified she felt better and would consider it a better day. She has her good days and bad days. When she is having a bad day she cries with the pain. It makes her very agitated.

[124] Currently she is taking medication for sleeping and depression.

[125] She gained four to six pounds right after the accident and after the plaintiff stayed home from work she gained more weight. In 2007 she joined LA Weight Loss. She is still on a diet and has lost 18 pounds. The doctor suggested it would help her back. She feels better now that she is slimmer, but she does not think it has helped her back.

[126] The plaintiff testified about the treatments she received following the accident. The plaintiff saw her family doctor every two to three weeks for the entire year following the accident. Her pain got worse from the date of the accident and her doctor recommended massage and physiotherapy treatments and she attended these in Port Coquitlam.

[127] She had massage therapy two or three times a week for about three weeks. After taking massage therapy she felt some relief, but the next day her pain was back. She quit the massage therapy because ICBC only paid for a few visits, but continued with the physiotherapy for a year.

[128] At the beginning, she went twice a week to physiotherapy, and later went once a week when she was working. She would feel better for about a day after taking a physiotherapy treatment and then the pain would be back. She kept attending, hoping the pain would get better.

[129] Her physiotherapist gave her exercises for her neck and back. She used the ball and she did stretching on a mat.

[130] Following surgery she still went to physiotherapy, but it got expensive. She saw an advertisement for a recreation centre for people 50 years and over. Her physiotherapist thought that this would be a good idea. The recreation centre cost was $2.50 per visit, whereas the physiotherapist cost $40, so she has been going to the recreation centre ever since, three times per week. She does lots of the same exercises she did with the physiotherapist, although there is no ball to exercise on.

[131] Apart from physiotherapy and massage therapy, the physiotherapist asked ICBC if it would pay for the plaintiff to attend at a gym. She went in March 2005 for three months. She did exercise on her own, but she felt bad. The plaintiff believes the recreation centre is better because the exercises are designed for women over fifty and involve just stretching.

[132] She went to see a chiropractor in June 2005 for four months and saw him until she attended for back surgery. At the time of trial, she was again seeing her chiropractor. She says that she does not feel better, except for a short time after, but she feels that she is doing something for herself. She now goes once in two weeks at a cost of $31 per visit.

[133] Last year Dr. Lee recommended steroid injections in her lower back. This helped for six weeks to two months. She also had injections in her neck. She receives the steroid injections at the Royal Columbian Hospital.

[134] She has also attended acupuncture three times, but there has been no benefit. This costs $45 per visit.

[135] The plaintiff provided evidence as to her pre-accident health. Before the accident, in 1999, she hurt her back when lifting x-ray aprons. The doctor said that she pulled a muscle. She stayed at home until the spring of 2000, so she was off for about seven months and made a claim for WCB. She remembered going to see a neurosurgeon and he told her it was just a strained muscle in her lower back. She recovered and at the time of the accident she had no ongoing pain from her back injury.

[136] Prior to the accident she recalled that she had a little pain in her right hip. This was a long time ago and was not a work related injury. She did not recall if she lost time from work.

[137] The plaintiff said that prior to the accident she had not been diagnosed for disc herniation. She could not recall any health problems in the year prior to the accident. She said that her knee, low back and ankle were not symptomatic and she had not attended at a chiropractor, massage therapist, or for acupuncture treatments. She had attended at a physiotherapist in 1999 for her WCB injury.

[138] The plaintiff also provided evidence as to the impact that the accident has had on her life. The plaintiff said that prior to the accident, they were a very active family. Her and her husband skied and skated and they travelled across the province. They went camping a lot. She did hiking with her daughter and once in a while she went fishing with her husband. Since the accident she has been unable to do any of these activities. Her one attempt at cross-country skiing failed, she is afraid to go skating, she can no longer hike, she tried to go camping but was uncomfortable, and she has not been fishing with her husband since the accident.

[139] She said that prior to the accident weekends were family days and she did things with the whole family. When her daughter had a boy, she and her husband became very involved in their grandson’s life. They took him skating and went bicycling and camping with him. She now has two grandchildren: her grandson is now 12 years old and her granddaughter is five years old. She has not been able to do things, such as biking or skating or even lifting them, since the accident.

[140] Prior to the accident she always enjoyed her time with her grandchildren and children, but she would find it hard now to babysit a small child.

[141] Prior to the accident she did house chores. She still performs household chores but more slowly, and it increases her pain level. Since the accident, because her husband works and comes home tired, she still does the dishes and cooks, but she is slower. She takes breaks while cooking. Lately, she cooks supper in the morning because she feels better in the morning and it helps when she does not have to do the cooking and cleaning at once. She washes small dishes in the sink. She sweeps the kitchen floor. She needs her husband’s help with laundry. Prior to the accident her husband did not do the laundry.

[142] Her husband does not like to shop. She did the shopping before the accident. After the accident, when she has to do a large shopping, her husband comes with her. He pushes the cart for her. She can shop for small items, but he comes with her for a large shopping.

[143] Their townhouse has a small yard. Prior to the accident, her husband did the yard work and she did the gardening. It was her hobby. Now she just puts flowers in little pots. She does not do anything major in the garden. She takes her time and will do one pot and then lay down and watch television and then maybe go outside again and do another one.

[144] Reading is difficult for the plaintiff. She also has trouble working on her internet email very much. She just does some banking. Holding her hands up is difficult and having her head looking down is very painful for her neck. Prior to the accident she had no problem holding her arms up. She could read a newspaper.

[145] Regarding her pre-accident social activities, she said she really liked her job. She liked her co-workers. She considered them friends. Sometimes their friends from the Czech Republic would come over or they would visit, but after the accident when people came over, she always went to bed around 7:00 p.m., so their friends do not come over anymore. She said her husband’s friends come over without their wives. She said that when she goes with her husband to visit friends she has to go home after about an hour. So, they just stopped visiting, and nobody comes over to their place now. As well, she does not see her co-workers because she is always at home.

[146] Since the accident, the only thing she can do is attend at the Port Coquitlam recreation centre, which gets her out of the house. She enjoys it. She also walks her dog, a six year old miniature Australian shepherd, for about 15 minutes a few times a day. He is well behaved such that she does not have to use a leash.

[147] Since the accident, last November, she and her husband went to Mexico for a week. She said her husband is very supportive of her and she knows it is very hard for him emotionally. He is very tired from all that has happened. They are very close and she was getting worried about what would happen if he left. She told him that they needed a vacation and she called her travel agent, who suggested Cuba and the Dominican Republic. She wanted to take a short trip and the travel agent told her that Puerto Vallarta was four and a half hours away by flight. She booked the tickets. She also went to see her doctor, who said it would be good for her mentally and physically to take the vacation. On the flight, she asked for an aisle seat, had her pills, and would sit and get up and then sit down again. She was in pain, but she survived. She swam a few times a day, but most of the time sat by the pool at the all inclusive resort. One afternoon they rented a car and went for a little trip to see some of the small villages in the area. She said that after this vacation she felt closer to her husband again.

[148] Apart from her trip to Mexico, she has not been on a major trip.

[149] Her older daughter lives in Vernon and she has been to Vernon since the accident, maybe twice or three times a year. She flies to Vernon, takes the bus, or her husband drives her.

[150] Regarding the emotional effects of the accident, she would come home from work and lie down and cry because she was in so much pain. She explained that employment was also her social life. Now she just sits at home by herself and she is very sad. Prior to the motor vehicle accident she was a very positive person.

[151] Prior to the accident, she would go to bed at about 9:00 p.m. or 10:00 p.m. She would get up at 6:00 a.m., but she never went to bed as early as 7:00 p.m. She was a good sleeper. Now, she can fall asleep, but she always wakes up around midnight and at about 5:00 a.m.

[152] In the first few weeks after the accident, she was afraid to drive, she was very careful and paranoid. After a while, this started to get better.

[153] The plaintiff said that her car was not repaired after the accident. It would have cost $4,000 to $5,000 to repair and her car was not worth that much as she bought it for $3,000. She did not have collision insurance and so did not receive a payment for her car.

[154] The plaintiff said that she had to sign a document that stated that if she did get money from her claim, she would have to pay back her long term disability benefits.

[155] The plaintiff gave evidence about her work and the impact that the accident has had. At the time of the accident she was working at the Royal Columbian Hospital. She was a casual employee since 1990, until she got a part-time permanent position in the operating room. She was paid $22.54 per hour.

[156] She was on permanent part-time, which meant she worked 0.5 and a co-worker worked 0.5. She worked about four five-hour days for each paycheque.

[157] She also picked up extra shifts. She worked about 30 hours per week and about 60 hours for two weeks. Four days were permanent part-time and four days were pick-up shifts. A pick-up shift is where if someone is sick they call others by seniority. She had enough seniority to pick up extra shifts in the operating room or in patient care.

[158] She also sometimes got overtime. Overtime is paid on the basis of time and a half for the first two hours and then double time. However, she had to work her full eight hours before she got overtime and so she did not get that much overtime, perhaps once in six weeks or two months.

[159] On a regular shift in the operating room, she would get there at about 6:45 a.m., pick up patients from the wards or from daycare surgery, and take them on stretchers, in wheelchairs or in a bed to the operating room. She did about 30 of these a day. In between, she would stock shelves, strip tables to be sent down for cleaning, and sometimes help patients to get on and off a stretcher, or in and out of bed.

[160] When she did her shifts, either in the operating room or on wards, she also looked after patients. She would wash them and feed them and she would help them get into a chair or in a wheelchair if they could not do it on their own. Some of the patients she worked with were confused.

[161] The plaintiff testified that her job was most physically demanding. The operating room involved lots of walking, and patient care involved lots of lifting.

[162] She said that the most physically demanding part of the job was pushing the beds, although normally she pushed a stretcher. In the past, they always had two people on a bed. One would push and one would pull. Now one person does that work.

[163] Prior to the accident she could not recall any difficulty with her job duties.

[164] Right after the accident she was off for about three weeks and then went back to work on February 11, 2004. She started to slow down on picking up shifts. She worked for two days and then called in sick because of pain. At the beginning of March she switched with a co-worker so that she could work weekends because weekends have a lighter workload. For four months she worked every weekend. She found this easier for her back and neck. However, she did not pick up as many shifts and she called in sick a lot, even though before the accident she did not like to call in sick.

[165] Prior to the accident she worked five days in a row, easily working from Saturday to Wednesday. After the accident, she tried to break up her working days, but sometimes she had to work five days in a row because the hospital was short-handed. When this happened, she had to see the physiotherapist.

[166] She said that she came to Canada in 1984 from a Communist regime in the Czech Republic. There was no way that she could call in sick. She was raised to work. It did not cross her mind that she should stay home and not work, so she took pills and just kept working.

[167] In the Czech Republic she had ten years of normal school and then three years of training for management. She worked in a clothing store and as a clerk in an office.

[168] She came to Canada in December of 1984. She spent her first year in Winnipeg. She worked cleaning in a hotel. At night she would clean offices. She also worked in a nursing home. When she came to B.C. she went to a private school to become a nurse’s aid. She did six weeks of practical training at the Royal Columbian Hospital and in 1990 she was hired.

[169] She is still an employee of Royal Columbian Hospital, but has not worked since December 22, 2004. At first she had sick days left. Then she applied for EI. She got two months. She then applied for long term disability benefits from her employer, and she is still on disability benefits. Last year she applied for a long term disability pension and she now gets both disability benefits and a disability pension.

[170] After the accident she was not receiving as much income as when she was working. However, she says that she is grateful for what she is receiving. She believes that it might be as much as $200 to $300 a month less than her income during the time that she was working.

[171] Regarding her pension, she put in 50% and her employer put in 50%. It was based on a percentage of her paycheque. Since she stopped work in 2004, she has stopped contributing to her pension.

[172] Since stopping work in December 2004, she has not tried to return to any kind of employment. She loved her job and she was very happy at Royal Columbian Hospital. She testified that she did not feel she had to look for another job. Her training is that of a nurse’s aid. Currently, because of her pain, she would not last two hours on any job.

[173] At the time of the accident, the plaintiff and her husband did not have any plans to retire. She hoped to retire when she was age 60, but she did not discuss this with her husband.

[174] The plaintiff will be 58 years old in September 2008. Her mother died in 2002 at the age of 84. Her grandmother was 89 when she died.

The Plaintiff’s Husband

[175] The plaintiff’s husband works for a fabrication company in Surrey.

[176] When he got word of the accident, he went to the Royal Columbian Hospital. He saw the plaintiff in bed covered with a blanket. She had glass all over her face and she appeared to be in pain. She told him that she was in pain and he had no reason not to trust what she was telling him.

[177] They were at the hospital for three or four hours and then the plaintiff was released and they went home.

[178] It took about a week to get the small particles of glass out of the plaintiff’s hair. The plaintiff had bruises on her left arm and left hip. He said that prior to the accident the plaintiff had not taken many sick days. She did not miss much time off work due to injuries.

[179] He said that she pulled a muscle in her back about four to five years prior to the accident. She spent a few months at home. She then went back to work and had no other problems.

[180] Prior to the accident he did not hear her complain about back pain. Prior to the accident they went camping and they were really active. They drove all over the province. They went camping in the summer and in the winter they went skiing and skating and went swimming at an indoor pool.

[181] He said they went camping in the summer every second week. They do not go camping anymore. They tried once, two years after the accident. They put a foam mattress in their van, but this did not work out. The plaintiff cannot sit for any long period of time. If she sits for one hour, she starts hurting.

[182] Prior to the accident, the plaintiff had no trouble sitting in the van. They drove all the way to the Yukon.

[183] Prior to the accident, the plaintiff liked cross-country skiing at Cypress. After the accident they have not gone skating or skiing. The plaintiff cannot do it.

[184] The plaintiff also cannot do swimming anymore because of her neck. Prior to the accident, the plaintiff went hiking with their older daughter. The plaintiff also went fishing with him. He has not fished with her since the accident. She cannot sit in the boat.

[185] Since the accident, he and the plaintiff have not been able to pick mushrooms together. Prior to the accident, they would load the bicycles in the van and go to the Pitt River area, but after the accident she has not been able to ride a bike.

[186] Prior to the accident, all of those activities were part of their life.

[187] The plaintiff likes to garden. She tried to keep up her garden after the accident, but she cannot do it. She will work in the garden for a half hour or so and then quits and then comes back to it later. Or he will clean up what she has started.

[188] For exercise, the plaintiff goes to the Port Coquitlam centre for seniors and exercises three times a week. The plaintiff walks the dog every day, but not for a long period.

[189] Prior to the accident, the plaintiff had no difficulty walking. She walked with their daughter quite often.

[190] Just after the accident, he did not see any mental changes with the plaintiff. But later on she changed. She became really moody and edgy, and he says that lots of it has to do with the pills she is taking.

[191] He says that she is taking three or four pills of different kinds. One is for her stomach and the others are for pain.

[192] He said that prior to the accident she did most of the household chores. Since the accident he has to help her. He helps with cooking and laundry and vacuuming and grocery shopping. She cannot push a cart.

[193] The plaintiff wanted to retire at age 60. He plans to work until maybe age 62.

[194] They have a few friends. They used to visit each other, go to the movies or go to the opera. They do not do much anymore. The plaintiff cannot sit in a movie and their friends stopped coming over. And they do not visit the homes of their friends anymore. After a half hour or so, the plaintiff simply wants to go home.

[195] Sometimes he drives her to the Okanagan, and she has flown a few times.

[196] Prior to the accident they spent lots of time with their grandson. They did everything with him that they had done with their daughters. They went skating, played soccer, and taught him how to swim. But now, the plaintiff cannot do these activities.

[197] He said that after the accident, the first year was not so bad. But when she stopped working, and she was at home all the time, she became really edgy. She just snaps at him.

[198] He said that they do not enjoy intimacy and their sex life is miserable. She is in so much pain and she has to go to bed at 7:00 p.m.

[199] He said that since the accident she is worse than she was. She is in constant pain.

[200] He said that the plaintiff has always worked hard and was always energetic. Both of their daughters work in the health field, one is a unit clerk in a hospital and the other also works for a hospital.

[201] He said that the plaintiff goes to bed around 7:00 p.m. or 7:30 p.m. and wakes up about 1:00 a.m. or 2:00 a.m. She does not sleep well. Prior to the accident she had no sleep difficulties and would go to bed at about 10:00 p.m.

[202] As a result of the injuries, he is concerned about her future. About six weeks ago she asked him what would happen if she needed a wheelchair.

[203] In cross-examination, he said that the first year after the accident was not so bad. She went back to work. It then got worse when she stayed home from work.

[204] Two months ago they went to Mexico. The flight took about four and a half hours. During the trip she just rested at the resort. He rented a car and took a 25 and a 15 minute car trip.

[205] He said the travel day to Mexico involved about six and a half hours and then 45 minutes to the hotel, so it was about seven hours in total. He said that prior to the accident they would go to the Czech Republic every year.

The Plaintiff’s Daughter

[206] The plaintiff’s daughter Petra is in charge of quality improvement and risk at a hospital in Vernon.

[207] She said that prior to the accident, she did lots with her mother. Her mother was very active. They went camping, they travelled around the province, they went hiking, they went on long walks, they went cross-country skiing and the plaintiff took her grandson skating.

[208] In the summer prior to the accident, they did a lot of camping and travelling. In the summer they would generally go camping a couple of times a month between May and August.

[209] They have not gone hiking together since the accident. The plaintiff cannot walk for more than a 10 or 30 minute walk. They just walk nearby the plaintiff’s house with the dog. After 30 minutes she starts walking like she is 87 because she is in pain and she cannot walk. She is hunched over.

[210] She said the plaintiff goes out with the dog two to three times a day. These are short walks around the neighbourhood.

[211] The plaintiff would go cross-country skiing two to four times each winter before the accident. Since the accident, the plaintiff’s daughter tried it with her mother once. It might have been last year or two years ago in Vernon. She went with her mother and her nephew but the plaintiff lasted only about ten minutes. She was just walking with ski poles. She was in too much pain. She had shooting pains in her upper back. When her arms are out in front of her, it gives her pain. When she tries even to mix dough, it gives her pain.

[212] She said her mother taught her and her nephew how to skate. She has not been able to skate with the plaintiff since the accident.

[213] Since the accident, mobility is a big challenge for the plaintiff. She cannot do the activities they used to do. The plaintiff has difficulty walking uphill, and holding a book in front of her. She has lost the mobility in her legs, her hips and her upper body. She has gained weight, although she lost weight after going on a weight loss program.

[214] She says that her mother has aged a lot. As soon as she gets pain she becomes extremely exhausted.

[215] She said that before the accident her mother was a very hyper, energetic person and had more energy than a 30 year old.

[216] She says she worries a lot about her mother. Her mother calls her a lot. She tells her how she is doing, that she cannot do anything and is in pain, and this has been emotionally exhausting for her and her father. She said that before the accident her mother had a life and did not call her as much.

[217] She said it takes forever for her mother to prepare a meal. Maybe two hours to make dinner. She has to peel some potatoes and then take a rest. Prior to the accident it only took her a half hour to make dinner. She was a very speedy woman.

[218] She said her father is really worried about her mother and her mother’s future. It has been emotionally hard on him.

[219] She said that prior to the accident her parents probably went out once a month to parties and sometimes the plaintiff went out with her co-workers. This has definitely declined because the plaintiff cannot sit for very long.

[220] She said that when the plaintiff sits for a long time, she starts to twist her body, and is in pain. She can only last about an hour.

[221] She said that when the plaintiff starts to turn white and appears sick she takes medication and has to lay down.

[222] The plaintiff’s daughter is extremely worried about her mother’s future. Their tradition is that the older sibling looks after the parents and she worries that her mother is going to be in a wheelchair in a couple of years. Also, she could not ask her to help look after her future family.

[223] She said her parents have babysat for her sister’s children since the accident, but very little and for short periods of time.

[224] She said that her mother is quite depressed and is full of doom and gloom now.

Pamela Gardner

[225] Pamela Gardner works in the nursing department at Royal Columbian Hospital.

[226] She knows the plaintiff very well. She worked with the plaintiff about four times per week.

[227] She said that following the accident, the plaintiff’s ability was diminished. On several occasions, the plaintiff complained to her about her physical problems.

[228] She explained that her duties in the operating room include sorting equipment, cleaning certain items, pulling heavy carts, portering patients to and from the operating room, patient care, returning patients back to wards, positioning transfer patients over, making patients comfortable, and pushing carts around. It is a very physically demanding job.

[229] She said the most physically demanding for her is portering the patients by herself. It is a difficult job, especially if she is portering an obese patient. She said that when portering, she can call for the assistance of someone else.

[230] When the plaintiff returned to work after the accident, Ms. Gardner observed the plaintiff having difficulties performing her work. She complained about her neck and complained that she was in pain. When moving beds, the plaintiff asked her to take the end of the bed because the plaintiff could push the bed, but not pull the bed.

[231] Ms. Gardner said that prior to the accident, the plaintiff performed her duties with the rest of the staff. She had brief times off, but she was always rehabilitated and came back to full capacity.

[232] Ms. Gardner testified that it emotionally distressed the plaintiff that she had this pain and the thought of not coming back to work disturbed the plaintiff.

[233] According to Ms. Gardner, the plaintiff was a hard worker and not a complainer, she was good with patients, she was good with co-workers and she was a good employee. She said that after the accident, the plaintiff was very quiet. She was not as social. From her observations, the plaintiff was in pain.

[234] She said that after the accident the plaintiff picked shifts with lighter duties. She took duties where she could step back from the front line and where she could contribute without the heavy work.

[235] The witness said that at work the eight full-time personnel are a small team. If they get sick, they cover each other. At least twice a week they get opportunities for overtime.

[236] She said that outside of work she occasionally gets together with the plaintiff for drinks, coffee, or to walk their dogs together.

[237] She said that prior to the accident the plaintiff joined their social activities, but since the accident the plaintiff did not attend the annual Christmas party, even though she was invited. The plaintiff feels out of the loop.

[238] She said that when the plaintiff was at a pub about six months ago, she was there for about two hours. She would get up and down and walk around. She did not look comfortable.

[239] She did meet the plaintiff for a coffee in the mall. They sat for about ten minutes, but then the rest of the time they walked around and chatted.

[240] Her current hourly rate is $28.95 per hour, which is the base rate without weekend differential. Prior to that it was $22.54.

[241] She said her co-workers miss the plaintiff. She believes that if the plaintiff could be at work, she would be because she is a stoic person.

Janice Connell

[242] Janice Connell is the patient care coordinator in the operating room at Royal Columbian Hospital.

[243] She has held this position since September 2000.

[244] She knows the plaintiff. She said that the plaintiff worked as a nurse’s aid. She portered patients to and from the operating room, did some cleaning and dismantling of tables, and transferred patients in the operating room from stretchers to the operating table. She said that being a nurse’s aid is a physically demanding job, but prior to the accident the plaintiff had no difficulty with her position.

[245] She said that prior to the accident, the plaintiff did take time off for a work related back injury. She did return to work and prior to the accident she did not observe the plaintiff having any ongoing problems.

[246] She said the plaintiff was a good worker, a hard worker, and she never had any complaints about her work ethic. She was not a slacker and she always wanted as much work as was available.

[247] She said the work environment in the operating room is very stressful and very busy. There is constant change, emergencies, and at the drop of a dime it changes from regularity to chaos.

[248] She said that the plaintiff could not now return to her nurse’s aid position because there is no position available for her in the operating room. Once a person has gone on long term disability for over two years, the job is then re-posted and somebody else can apply for it, which is what happened in the plaintiff’s case.

[249] Ms. Connell said that she never asked the plaintiff to return to work. If the plaintiff was going to return, a graduated return to work would have to be discussed with occupational health, a union steward, and a manager or herself. The plaintiff might start off with two hours or four hours and then after four to six weeks she would progress to a full shift. This did not happen in the plaintiff’s case.

[250] Ms. Connell testified that overtime is sometimes available. It comes in spurts. They ask staff who are already on shift if they want to extend their shift. The first two hours are at time and a half, and the rest is double time. If someone is brought in who is already off shift, then the whole shift is double time.

[251] She said that in the course of a month they try to divide the overtime up fairly. No more than two shifts. But that is very generous. Seniority is not a factor in getting overtime, although it is a factor for extra shifts.

d. The Plaintiff’s Argument

[252] Plaintiff’s counsel submitted that the plaintiff will never enjoy a life free from pain and that she now only has an optimistic opportunity to better manage her pain if she is provided compensation to explore recommended pain management treatments. He also submitted that she would, more likely than not, have remained pain free in her affected areas well into the foreseeable future had the accident not occurred.

[253] The plaintiff relies on the decision of Athey v. Leonati, [1996] 3 S.C.R. 458, where at paras. 13-19 the following principles are set out:

13. Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, [1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).

14. The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441.

15. The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21; Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

16. 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.

17. 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. To borrow an example from Professor Fleming (The Law of Torts (8^th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is … caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”. 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.

18. This proposition has long been established in the jurisprudence. Lord Reid stated in McGhee v. National Coal Board, supra, at p. 1010:

It has always been the law that a pursuer succeeds if he can show that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that his cause would of itself have been enough to cause him injury.

19. The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm: Fleming, supra, at p. 200. It is sufficient if the defendant’s negligence was a cause of the harm: School Division of Assiniboine South, No. 3 v. Greater Winnipeg Gas Co., [1971] 4 W.W.R. 746 (Man. C.A.), at p. 753, aff’d [1973] 6 W.W.R. 765 (S.C.C.), [1973] S.C.R. vi; Ken Cooper-Stephenson, Personal Injury Damages in Canada (2^nd ed. 1996), at p. 748.

General Damages

[254] On her claim for non-pecuniary damages, the plaintiff says that she is entitled to an award that includes, but is not limited to, an assessment of her compensable pain, suffering and loss of enjoyment of life. She suffers from chronic pain, soft tissue injuries and a herniated disc that led to surgery.

[255] The plaintiff submits that the award under this head of damages must also take into account the continuous pain and permanent disability she will experience for the rest of her life. She seeks an award in the upper range of the cases she puts forward to take into account the loss of enjoyment of life that she has suffered in all aspects of her personal, social and recreational pursuits, as well as the fact that she can no longer work at her chosen occupation.

[256] The evidence is that the plaintiff did have a pre-existing back condition. She relies on Athey v. Leonati, supra, on this issue. At paras. 7 and 41 the Supreme Court of Canada states:

7. The only issue was whether the disc herniation was caused by the injuries sustained in the accidents or whether it was attributable to the appellant’s pre-existing back problems.

…

41. The applicable principles can be summarized as follows. If the injuries sustained in the motor vehicle accidents caused or contributed to the disc herniation, then the defendants are fully liable for the damages flowing from the herniation.

[257] Plaintiff’s counsel provided the Court with several cases on general damage awards for similar type injuries as those sustained by the plaintiff in the instant case, including Courdin v. Meyers, 2005 BCCA 91, 250 D.L.R. (4^th) 213. In that case the plaintiff did have a pre-existing medical condition. The accident caused soft tissue injuries and the plaintiff deteriorated following the accident and was unable to participate in many of her pre-accident activities. The Court of Appeal held that a fair award for non-pecuniary damages was $200,000.

[258] In Easton v. Chrunka, 2006 BCSC 1396 at para. 18, B.M. Davies J. set out the opinion of a medical doctor, as follows:

In my opinion, this lady has done remarkably well considering the extent of her injuries. Her back pain has improved. However, she continues to have back symptoms. Given this lady’s emotional stability and the fact that there is no symptom magnification at all, her complaints have to be taken at face value. Inevitably, therefore, she will continue to have symptoms from her back on a permanent basis.

As I pointed out in my previous report, a fusion throws increased strain on the discs above and below the level of the fusion and in time, therefore, she may develop disc degeneration in the adjacent disc.

[259] The plaintiff submits that she will suffer the same fate as the plaintiff in the above-noted case.

[260] In Love v. Pai, 2003 BCSC 900, the plaintiff appeared to have suffered a typical whiplash injury. He did not miss any time off work, although he gave up much of his previously active fitness and sports routine. He suffered from increasing neck pain in 2001, and eventually had neck surgery to remove a herniated disc. The defendant submitted that there was not sufficient evidence of a causal link between the accident and the disc herniation, which manifested itself three years after the accident. At para. 58 Warren J. held, as follows:

I find that the plaintiff sustained injuries in the three impacts caused when the defendant drove into the rear of the plaintiff’s car of April 8, 1998 and these injuries have caused him significant and progressive pain and disability and have seriously encroached on his enjoyment of life and on his ability to work pain free. I further find that he has a diminished capacity to work and earn income.

[261] Warren J. awarded the plaintiff general damages of $100,000.

[262] The plaintiff also cited the decision in Djukic v. Hahn, 2006 BCSC 154. In that case a woman sustained injuries to her neck, back, shoulders, wrist and knee, severe and chronic anxiety and depression, and was left with a permanent partial disability. At para. 9 Josephson J. states, as follows:

Her lower back pain worsened with time. She developed a “burning pain” which extended to her leg. Finding the pain overwhelming, she attended the hospital emergency ward on two occasions in the fall of 2000 and was treated with cortisone shots. That temporarily alleviated the pain.

[263] At paras. 27, 36, 45, 52 and 54 His Lordship states, as follows:

The pain and difficulties only worsened until she underwent surgery in December of 2002, after she was diagnosed with disc herniation at the L4-5 level. A protrusion there was irritating a nerve which exits the spinal cord at that level.

…

Dr. Travlos noted the following:

1. Her back and leg symptoms were present from the first accident and were aggravated by the second.

2. She complained of right sided leg pain and numbness that did not reach the foot, but were non-specific in their description.

3. Following the second accident, the right leg symptoms increased, but remained fairly stable until May, 2002, when they became much more intense and severe.

4. An x-ray on September 17, 2001 revealed long standing degenerative changes at the L4-5 level.

…

Dr. Thompson is of the opinion that a direct relationship of the disc herniation to the motor vehicle accident is unlikely. The first signs of a disc herniation developed in April 2002 approximately nine months after the motor vehicle accident. It would be difficult to implicate the motor vehicle accident as a primary and direct cause of Ms. Djukic’s disc herniation.

…

I accept the opinion of Dr. Travlos in preference to that of Dr. Thompson, for two reasons. Firstly, it appeals to common sense, though I acknowledge that is an inherently dangerous assessment for any non-expert. Mrs. Djukic was a healthy and robust person, both physically and emotionally, up to the time of the first accident. While there was moderate improvement in the year following that accident, all the symptoms were significantly exacerbated in the second. She then exhibited pain consistent with damage to that level of the spine which continued and worsened until diagnosis of herniation in April/May of 2002.

…

I accept the opinion evidence of Dr. Travlos that the disc herniation was directly and causally linked to both accidents, with the second accident playing the greater role in that regard.

[264] Josephson J. awarded non-pecuniary damages of $125,000.

Past Loss of Income

[265] Turning to the plaintiff’s claim for past loss of income, the plaintiff relies on the report of Mr. Darren Benning of PETA Consultants Ltd. In his report, Mr. Benning estimates that the plaintiff has suffered past income loss of $82,136 (prior to court-ordered interest, and net of income taxes and EI premiums) and future income loss of $159,509 (calculated until the plaintiff’s assumed retirement, no later than age 65, based upon the assumption that the rate of return on investment exceeds average wage inflation by 2.5% per annum). In computing past and future income loss Mr. Benning has made provisions for negative contingencies of non-participation in the labour force, unemployment, part-time work, and premature death.

[266] The plaintiff submits that the estimates made by Mr. Benning are conservative and probably less than the actual loss she incurred as a result of the accident.

Special Damages and Cost of Future Care

[267] The plaintiff submits that the appropriate amount of compensation for cost of future care and special damages is in the range of $6,000 to $7,000 for special damages and $37,000 to $39,000 for cost of future care.

Loss of Housekeeping Capacity

[268] The plaintiff submits that inherent in her condition is a reduced capacity for the ability to perform all of the household cleaning and tasks that she was once able to perform.

[269] In Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.), the Court of Appeal accepted the proposition that damages may be awarded for loss of homemaking capacity. While the Court took note of the fact that the household tasks were shared between the husband and wife, at para. 5 the Court states, as follows:

… it appears not to be a sharing by way of preference or according to competence but a sharing dictated in part by the respondent’s inability to do things she would normally do.

[270] Furthermore, at para. 9 the Court recognized that even when housekeeping and other spousal services have been replaced gratuitously from within the family damages can be awarded because these services have economic value. However, the Court of Appeal reduced the quantum of damages from $23,000 to $7,000.

[271] In Deglow v. Uffelman, 2001 BCCA 652, 96 B.C.L.R. (3d) 130, Levine J.A., for the Court, states at paras. 3, 12, 21, and 23 to 33, as follows:

I would allow both the appeal and the cross-appeal. With respect to the appeal, applying the test set out in Strazza v. Stupich, [2000] B.C.J. No. 360 (B.C.C.A.), I would reduce the award for non-pecuniary damages from $100,000 to $75,000, which remains high but is not inordinate. With respect to the cross-appeal, in my view the trial judge’s instructions on the loss of homemaking capacity may have led the jury to conclude, incorrectly according to McTavish v. MacGillivray (2000), 74 B.C.L.R. (3d) 281 (C.A.), that the plaintiff had to prove that she had incurred, or would incur, an expense to hire someone to carry out the homemaking tasks she could no longer perform herself. I would award $2,610 for past loss of homemaking capacity up to the date of trial and $13,000 for future loss of homemaking capacity after the date of the trial.

…

Before the accident, the plaintiff also did all the housework in the home she shared with her common-law husband. After the accident, she could no longer help her husband with the outside work, move furniture or flip mattresses, wash the windows or carry heavy shopping bags. The evidence of the plaintiff and her husband was that he does an extra one-and-a-half to two hours of housework each week that he did not do before the accident.

…

The plaintiff claimed damages for loss of homemaking capacity, before and after trial. The evidence supporting her claim was her testimony and that of her husband concerning the housework she could no longer do and the work he had taken over. The plaintiff and her business partner testified concerning the hourly rate payable for housekeeping work. In addition, an economist, Mr. Carson, provided evidence concerning the calculation of future losses. There is no real dispute about any of this evidence for the purposes of this appeal.

…

The plaintiff’s complaint concerning the trial judge’s instructions is that he may have left the impression with the jury that the plaintiff could recover for loss of past and future homemaking capacity only if she had actually incurred expenses or suffered a monetary loss.

It is clear that in British Columbia a plaintiff may recover for loss of homemaking capacity although she has incurred no expense to hire those services. The applicable principles were reviewed in McTavish, supra. It was noted (by Huddart J.A. and by Saunders J.A. in concurring reasons (at para. 73)) that:

This Court, in Kroeker v. Jansen (1995), 123 D.L.R. (4^th) 652; 4 B.C.L.R. (3d) 178; [1995] 6 W.W.R. 5 (C.A.) recognized that damages for past and future loss of housekeeping capacity may be awarded by a trial judge, even though housekeeping services were gratuitously replaced by a family member. Further, it recognized that, depending on the facts, this compensation may be by pecuniary or non-pecuniary damages, and if non-pecuniary, that there was no reason these damages could not be segregated.

Most of the discussion in McTavish focussed on the principles to be applied in determining the quantum of compensation. The question was whether the services the plaintiff could no longer provide could be valued in economic or pecuniary terms. The Court decided that in the circumstances of that case the services provided by the respondent (the plaintiff) could be evaluated by replacement cost because others had provided them (at para. 62). Huddart J.A. said (at para. 63):

As we have seen, it is now well established that a plaintiff whose ability to perform housekeeping services is diminished in part or in whole ought to be compensated for that loss. It is equally well established that the loss of housekeeping capacity is the plaintiff’s and not that of her family. When family members have gratuitously done the work the plaintiff can no longer do and the tasks they perform have a market value, that value provides a tangible indication of the loss the plaintiff has suffered and enables the court to assign a specific economic value in monetary terms to the loss. This does not mean the loss is that of the family members or that they are to be compensated. Their provision of services evidences the plaintiff’s loss of capacity and provides a basis for valuing that loss. The loss remains the plaintiff’s loss of economic capacity.

In my view, in the present case, the trial judge’s instructions accurately reflected the decision in McTavish concerning the principles to be applied in valuing a loss of homemaking capacity. The plaintiff’s loss could be valued in economic or monetary terms, based on the evidence she provided about the cost of the services she provided in her business and the time her husband spent doing the work she could no longer do.

The trial judge did not make clear to the jury, however, the principle established in Kroeker that the disabled plaintiff need not have actually incurred an expense or suffered a monetary loss to recover damages under this head. The trial judge did not explicitly state this principle anywhere in his charge on this head of damage or make it clear that an award, if made, is for loss of capacity and not to compensate for an expense or loss incurred. In describing how to calculate the loss, some of the words he used could have been understood by the jury to mean that an expense had to be incurred, which is not the law.

In my view, the absence of a clear statement of the principle to be applied in determining whether a plaintiff has suffered a loss of homemaking capacity could have misled the jury and caused it to make no award under this head.

The plaintiff seeks an order from this Court awarding damages for loss of homemaking capacity before and after trial. The defendant took no issue with that approach, although he disagreed with the quantum claimed.

The evidence is that the husband does one-and-a-half to two hours a week of housework he did not do before the plaintiff’s accident. The plaintiff charged $13.50 per hour for her services, but paid replacement workers $10 per hour. The plaintiff’s evidence indicated that she and her partner paid their business expenses out of their gross earnings, and their net earnings would have been approximately $10 per hour.

Using the husband’s time estimate of one-and-a-half hours and the rate of $10 per hour, the plaintiff’s annual loss is $780. Her loss up to the date of trial would be $2,610.

In determining the award for future loss of homemaking capacity, the primary question is over how many years she will suffer this loss. Her doctors say that her condition is permanent, but other factors could change, such as the size of the house and garden the plaintiff occupies.

In my view, an appropriate award for future loss of homemaking capacity is $13,000. This amount assumes that she will require the same amount of assistance for ten years following the trial and a reduced level of assistance for the rest of her life.

[272] In the instant case, the plaintiff testified that she is no longer able to complete all the household chores she was able to perform before the accident. Her husband testified that he has to now assist her with some of the chores, such as grocery shopping. The plaintiff seeks damages in the amount of $58,144.85 (PDV 2.5%) based on an initial fee of $200 plus $90 thereafter once a week for fifteen years.

Future Loss of Income & Diminished Capacity

[273] The plaintiff seeks full restitution under this head of damage on the basis of the medical evidence, which declares that her accident related injuries are permanent in nature causing permanent partial disability.

[274] The plaintiff relies on Athey v. Leonati, supra, wherein the Supreme Court of Canada held that the standard of proof to be applied when evaluating hypothetical events is simple probability, not a balance of probabilities. At paras. 27 to 29 the Court states, as follows:

27 Hypothetical events (such as how the plaintiff’s life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood: Mallett v. McMonagle, [1970] A.C. 166 (H.L.); Malec v. J. C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito, [1985] 1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiff’s injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74 D.L.R. (4^th) 1 (Ont. C.A.).

28 By contrast, past events must be proven, and once proven they are treated as certainties. In a negligence action, the court must declare whether the defendant was negligent, and that conclusion cannot be couched in terms of probabilities. Likewise, the negligent conduct either was or was not a cause of the injury. The court must decide, on the available evidence, whether the thing alleged has been proven; if it has, it is accepted as a certainty: Mallett v. McMonagle, supra; Malec v. J. C. Hutton Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp. 67-81.

29. This point was expressed by Lord Diplock in Mallett v. McMonagle, supra, at p. 176:

The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.

[275] With regard to the claim for loss of capacity, the plaintiff submits that there are several different factors that can be considered when assessing damages under this head. She relies on the approach of Finch J. A. (as he then was) in Pallos v. Insurance Corporation of British Columbia, 100 B.C.L.R. (2d) 260, [1995] 3 W.W.R. 728 (C.A.), where at para. 24 His Lordship states:

In addition to those cases cited by counsel, I would also refer to Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.). There Mr. Justice Taggart quoted with approval from Brown v. Golaiy (supra) as follows (at p. 399 – 400):

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.

[276] In Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), Southin J.A. states at p. 59, as follows:

Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

[277] In Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.) at p. 399 Southin J.A. states, as follows:

In my opinion, the true questions the jury must address in a claim such as this are:

1. Has the plaintiff’s earning capacity been impaired to any degree by his injuries?

2. If so, what amount in the light of all the evidence should be awarded for that impairment?

As Dickson J., as he then was, said in Andrews v. Grand & Toy (Alta.) Ltd., [1978] 2 S.C.R. 229 at 251 …

It is not loss of earnings but rather, loss of earning capacity for which compensation must be made … A capital asset has been lost: what was its value?

[278] Finch J.A. (as he then was) states in Pallos v. ICBC, supra at para. 27, as follows:

These cases all treat a person’s capacity to earn income as a capital asset, whose value may be lost or impaired by injury. It is a different approach from that taken in Steenblok v. Funk (supra), and similar cases, where the court is asked to determine the likelihood of some future event leading to loss of income. Those cases say, if there is a “real possibility” or a “substantial possibility” of such a future event, an award for future loss of earning may be made. There is nothing in the case law to suggest that the “capital asset” approach and the “real possibility” approach are in any way mutually exclusive. They are simply different ways of attempting to assess the same head of damages, future loss of income.

[279] The plaintiff submits that the factors originally set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) and affirmed in Pallos v. ICBC, supra, have been established in her case:

1) She has been rendered less capable overall from earning income from all types of employment. She had worked in a job she enjoyed as a nurse’s aide since 1990. At her age and skill level in light of the disability that she experiences, she is not competitively employable. While Dr. Cooke indicated that rehabilitation is always a possibility, it is not a probability for the plaintiff.

2) She is less marketable or attractive as an employee to potential employers. It is a fact that she is on Canada Pension disability. She will not likely ever work again in any meaningful occupation as a result of the injuries she sustained in the accident.

3) The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her, had she not been injured. She is no longer able to hold many of the jobs that were previously open to her because she cannot meet the physical and social requirements of these jobs. For example, had she chosen to leave work as a nurse’s aide she would have been able to work in a number of other fields. This includes working as a cleaner or a retail sales manager, in addition to work in any number of other occupations that would allow her to use her physical abilities. These are all things which due to her physical limitations caused by the accident, she cannot do. These limitations have closed off all job opportunities which might have otherwise been available to her, had she not been injured.

4) She is less valuable to herself as a person capable of earning income in a competitive labour market. The evidence has shown that she was a very hard-working individual who fully expected to return to work without pain. This is evidenced by her diligence in returning to work, her decision to work through pain and her expectation of healing. Unfortunately for her, she never did recover and is, in fact, worse today and may well continue to deteriorate, particularly as it relates to her functioning and emotional state. The evidence is in favour of the plaintiff with respect to a future loss of income and loss of capacity claim. The fact that she attempted to work shortly after the accident while in pain and hoping to get better illustrates the tragic nature of her inability to work as a result of injuries.

[280] The plaintiff submits that her claim for future loss of earning capacity should encompass an award for the fact that she will not likely ever be able to return to any meaningful employment should she choose to do so following retirement.

[281] The plaintiff also submits that her case has many similarities to the decision in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19. The plaintiff in that case, a 51 year old male, suffered an uncertain employment future due to injuries sustained in a motor vehicle accident. The plaintiff testified that he would not be able to work much longer because of his physical problems resulting from the accident. In essence, he could perform the work but it caused him considerable pain. Kirkpatrick J.A., for the majority, at paras. 12 and 37 states, as follows:

The evidence put before the jury portrayed Mr. Stapley as an extremely hard-working, independent man who loved his work and the unique opportunities that his work on the ranch allowed him to enjoy.

…

The evidence was that Mr. Stapley earned $12 per hour. His total income for income tax years 1999, 2000, 2001 and 2002 was, respectively: $38,828; $36,601; $38,706; and $34,639. The average income over the period was $37,194. An economist’s report was tendered in evidence to, in part, assist the jury in assessing Mr. Stapley’s future loss of income. Although it is impossible to know how or if the jury made use of the report, the $305,000 amount awarded closely approximates the income loss multiplier that assumes Mr. Stapley’s loss of income will commence in 2007 when he will be 54 ($310,000).

[282] The plaintiff in the case at bar submits that she is also a very hard worker who has worked through pain as best she can and is now having increased pain. In her case, her physical condition, unlike that of the plaintiff in Stapley, supra, is not expected to improve. She says that she has been marginalized into an unemployable condition. In addition, there is evidence that her inability to return to work or to resume her normal social life will also likely continue to cause the plaintiff significant emotional upset and diminish her perception of self-worth.

[283] The plaintiff claims that she should have been able to work to retirement and beyond but for the accident. Now that she is disabled as a result of the accident related injuries, her ability to earn a living and consider other work past “retirement age” has been foreclosed. While she had plans to retire at age 60, she submits that the loss of opportunity to change her mind and the lost freedom associated with her condition should be compensable beyond a purely economic calculation of the conservative discounted value of her future income loss as a nurse’s aid.

[284] The plaintiff seeks future loss of income and loss of earning capacity in the range of $107,330 to $200,000.

Mitigation

[285] The plaintiff submits that she has not only mitigated her losses but has done so honourably. She says that the law does not require a plaintiff to try every possible treatment. However, in her case, she could not likely have done anymore to remedy her difficult situation of pain. She has taken a reasonable course of treatment.

[286] The plaintiff relies on the decision of Wilson J. in Janiak v. Ippolito, [1985] 1 S.C.R. 146. She submits that this decision recognizes that so long as a plaintiff follows any one of several courses of treatment recommended by the medical advisors she consults she should not be found to have acted unreasonably.

[287] The plaintiff submits that the law of mitigation places the onus on the defendant to establish a failure to mitigate on the part of a plaintiff and that such a failure to follow prescribed treatment is unreasonable: see Janiak v. Ippolito, supra.

[288] The plaintiff contends that any assertion by the defence that she ought to have followed a different course is contrary to the evidence in her case. She has continued to seek treatment in an effort to mitigate her pain.

e. Decision

[289] I am mindful of the evidence in the plaintiff’s case about the loss of enjoyment of life that she has suffered with respect to her personal, social, employment and recreational pursuits. However the assessment of the plaintiff’s damages is somewhat complicated due to the plaintiff’s pre and post accident injury related findings as well as other circumstances bearing on whether the accident can be blamed for the fact that she is now disabled from work and suffers from chronic pain and depression. Thus, I turn to the key issue of causation.

Causation

[290] The main thrust of the plaintiff’s claim for damages is that she sustained a low back soft tissue injury eventually leading to disc herniation surgery that has rendered her permanently disabled, and that this outcome is due directly to the accident.

[291] The defence position is that given the history and the onset of symptoms of low back pain; the plaintiff’s prior history of work related low back injuries and complaints; that the plaintiff’s first onset of low back pain after the accident was caused by the same movement of bending forward as caused the plaintiff’s work related onset of low back pain; and that the plaintiff was working as hard after the accident as she was before the accident, it is impossible to conclude that the accident caused the plaintiff’s chronic low back pain.

[292] The essence of the defence based on causation is that the plaintiff did not complain about low back pain until about two months after the accident, and then only intermittently thereafter. The defendants assert that a significant increase in the plaintiff’s low back symptoms and the onset of new symptoms can actually be dated from the plaintiff’s fall down the stairs in her home in early March 2005. It was this event, claim the defendants, that caused the plaintiff to undergo disc herniation surgery and is the real reason why she did not return to her occupation as a nurse’s aid.

[293] The plaintiff claims that the reason she fell on the stairs was because she was stiff and sore and having difficulty mobilizing on the morning of the fall. She insists that she was not careless or negligent in any way.

[294] However, the defence claims that the plaintiff’s fall down the stairs was the result of her own carelessness and lack of attention. The defendants note that in cross-examination the plaintiff confirmed that after her fall down the stairs all of her injuries and symptoms got worse. The plaintiff also testified that she had been up and down those same stairs countless times and that she had been up and down those stairs when she was in more pain and experiencing more stiffness than was the case on the day she fell. She also said that she could get up and down the stairs with pain and stiffness if she was careful. Thus, say the defendants, the surrounding facts are inconsistent with the plaintiff’s position that it was her stiffness or difficulty with walking that caused her to fall down the stairs.

[295] Regarding the cause of the disc herniation, the defendants note that Dr. Andrew Sak Yu Lee, the neurosurgeon who performed the lumbar discectomy surgery, gave no opinion that the accident contributed to the herniated disc other than to opine that it caused it directly. He did not express an opinion that the accident weakened the plaintiff’s lumbar spine in some way or made her more susceptible to a herniated disc. The defendants also note that in cross-examination the doctor confirmed that the timing of the onset of the symptoms is important in determining causation.

[296] In Dr. Lee’s report to plaintiff’s counsel dated October 25, 2007 he wrote, as follows:

1. Cervical Spine – Soft Tissue Injury

It is my opinion that Ms. Heppner has ongoing complaints of neck pain, shoulder pain as well as interscapular (between the shoulder blades) pain on the basis of soft tissue injury in the region of the cervical spine.

She does have radiographic evidence of mild degenerative changes in the cervical spine that I feel are incidental to her symptoms and complaints. I note that she was free of complaints of neck pain prior to the motor vehicle accident.

2. Herniated Lumbar Disc L5-S1 Left Side

It is my opinion that Ms. Heppner did have complaints of low back pain, left leg pain and numbness on the basis of a herniated lumbar disc L5-S1.

Her symptoms of pain had onset after the motor vehicle accident. Her symptoms and description of pain in the left leg and low back are consistent with the anticipated symptoms of a herniated lumbar disc L5-S1. Her physical findings on examination, namely the reproduction of her leg pain with tests of nerve root tension (sitting sciatic stretch test and straight leg raise) as well as findings of weakness in left ankle plantar flexion (weak toe raise) are consistent with impingement/irritation of the S1 nerve root, which is expected as a result of a herniated L5-S1 disc.

[297] Dr. Lee also wrote in his report under the heading “Prognosis” that the plaintiff had had complaints of neck and low back pain on an ongoing basis since the accident. Under the heading “Summary” the doctor wrote that the plaintiff sustained the onset of neck pain, low back and left pain after the accident. He opined that the plaintiff sustained a soft tissue injury to the cervical spine as well as a herniated lumbar disc at L5-S1. He also opined that her ongoing complaints of pain in her leg and back were likely to remain present on a permanent basis and that she would remain disabled from her usual occupation and any other occupation with a light or greater physical demand, prolonged sitting, standing, bending, or twisting.

[298] In his letter of November 16, 2005 to plaintiff’s counsel, Dr. Cecil Hershler, a specialist in physical medicine and rehabilitation, under the heading “Diagnosis” wrote, as follows:

The history and physical findings are consistent with a number of musculoskeletal injuries:

1) There is an injury to the upper cervical spine. The locus of the injury is C1. The injury is asymmetrical and there is more findings in the left occiput than in the right. As a result, the left trapezius muscle has become tighter and more tender than the right. She is able to tolerate pressure into the right trapezius muscle to a much greater extent. There is probably a slight malalignment of the skull relative to the cervical spine as a result of the injury. Sustained pressure into the left occiput triggered a headache on the left side of her head.

2) There is a separate injury in the region of C6-7. There are small posterior osteophytes in this region. It is likely that this region has been rendered symptomatic by trauma.

3) Injury to the lumbar spine. This has primarily involved the disc spaces at L3-4, L4-5 and L5-S1. According to the CT scan, there was evidence of disc bulging at all of these levels as well as a disc herniation at L5-S1 with a sequestrated fragment. This required surgery. There is no evidence of any overt radiculopathy or neuropathy. The absent ankle reflex on the left was probably a consequence of the disc herniation at L5-S1 but it is likely that the root has now been decompressed. The pain in the neck is a combination of musculo-ligamentous injury, malalignment and traumatic aggravation of arthritic changes.

Based on the history and the physical examination, it is my opinion that all of these injuries were most likely caused by the motor vehicle accident on January 18, 2004.

Although Eva did have a previous episode of back pain, the findings, at the time, (1999 and 2000) at most revealed a mild disc bulge at L5-S1. In addition, all of her symptoms resolved completely and she was able to get back to hard physical work. Although it is possible that she did have a small disc bulge at L5-S1 at the time of the motor vehicle accident in January 2004, it was clearly asymptomatic and was made much worse and rendered symptomatic by the accident in January 2004. In addition, she had never previously had any episode of neck pain.

[299] In his addendum to his medical/legal report dated August 8, 2007 Dr. Hershler states that his opinion that all of the plaintiff’s injuries were caused by the accident is unchanged.

[300] The contrary opinion to that of the plaintiff’s experts comes from the defence expert Dr. Stephen Maloon, an orthopaedic surgeon. In his report dated February 17, 2006 he wrote, as follows:

1. Low back pain

This pain is continuous. The pain is localized to the low back with no radiation into buttock or lower limbs. She reports associated stiffness of the back. The pain is aggravated by prolonged standing or sitting and is relieved by rest and doing strengthening and stretching exercises. On specific questioning, coughing or sneezing aggravates the low back pain. She has had no signs or symptoms of bowel or bladder dysfunction. She has pain at night but reports it to be less severe than the pain during the day. Her night pain is particularly bad when she turns over in bed. She had had no constitutional signs or symptoms related to her low back pain. She denies numbness or weakness of the lower limbs. She reports her left leg pain to have resolved with the surgery. On a pain scale from 0 to 10 where 0 is no pain and 10 is unbearable pain, she reports ongoing low back pain at a 3 to 5 out of 10. This has improved minimally since her low back surgery.

[301] In Dr. Maloon’s report dated March 14, 2007 he wrote, as follows:

The consultation note of Dr. Lee dated June 10, 2005 was reviewed. She was seen with complaints of low back and left leg pain radiating down to her foot. The onset was after a motor vehicle accident of January 2004. This is not entirely consistent as review of family practitioner’s clinical records indicate the onset of low back pain radiating into her leg to have been March 2005. Dr. Lee reports no specific neurological deficit but indicates a positive straight leg raise on the left. His impression was that of a left L5-S1 disc herniation with lumbar radiculopathy. He indicates the disc could have been herniated for eighteen months but this is not accurate as the patient’s symptoms began only in March 2005, only three months before his assessment. He discussed the possibility of surgery.

…

My review of the submitted medical information suggests that Mrs. Heppner complained of neck pain after the motor vehicle accident. The low back pain complaints did not begin until two months after the motor vehicle accident. Her back pain beginning two months after a rear-ending accident would not in any way be related to injuries that she sustained in the motor vehicle accident. The clinical records indicate ongoing low back pain with no radicular symptoms (nerve root irritation). This is evidence by the family practitioner’s records as well as the records of physiatrist, Dr. Jaworski. The records indicate that it was not until March 2005, more than a year after the motor vehicle accident, that she began developing severe left leg pain in keeping with a left L5-S1 disc herniation. The fact that a CT scan done in October 2004 revealed no evidence of an L5-S1 disc herniation and a CT scan done in April 2005 revealing an L5-S1 disc herniation suggests that the disc herniated some time between these two studies. The clinical records further pin point the time of herniation to have been around March 2005. A disc herniated some fourteen months after a motor vehicle accident can not in any way be related to the motor vehicle accident. The disc herniation is therefore in my opinion part and parcel to the process of the lumbar degenerative disc disease and not the result of any injury that Mrs. Heppner may have sustained in the motor vehicle accident of January 18, 2004.

…

My review the [sic] submitted medical information confirms my impression that Mrs. Heppner probably sustained mild soft tissue strains to her neck and possibly her lower back in the motor vehicle accident of January 18, 2004. Her symptoms, clinical finding[s] by treating physicians and radiographic studies revealed no evidence of structural injury to her neck or back. In the absence of structural injury in the motor vehicle accident I do not believe that the mild soft tissue strain that she may have sustained in the January 18, 2004 motor vehicle accident would have been significant enough to alter the natural history of her neck or low back condition. Mrs. Heppner was shown to have degenerative changes in the lower lumbar spine before the motor vehicle accident. Unfortunately in the post-motor vehicle accident period (fourteen months later) she developed a left L5-S1 disc herniation that required surgery. This disc herniation would be the result of the natural history of the lumbar degenerative disc disease and not the result of injuries that she may have sustained in the January 18, 2004 motor vehicle accident.

[302] In his rebuttal evidence, Dr. Hershler responded to Dr. Maloon’s opinions, as follows:

MR. SPRAGGS: I’m sorry. I’m on the same page, page 2, and in the last few sentences, the last two sentences of the heading titled “Impression.”

Q And Dr. Maloon writes:

The disc herniation is therefore in my opinion part and parcel to the process of the lumbar degenerative disc disease and not the result of any injury that Mrs. Heppner may have sustained in the motor vehicle accident of January 18, 2004.

Do you agree or disagree with that, and why?

A I will acknowledge that lumbar degenerative disc disease does mean that there are changes in the spine. Some of those changes that you see with lumbar degenerative disc disease are thickening of ligaments, bony spearing, and then more specifically with respect to the disc you can have loss of water in the disc so the disc shrinks, and you can have a weakening of the disc wall, which can lead to some bulging. I will acknowledge that, and – and, in fact, does probably occur to some extent in all of us as we age, and it’s aging changes that are degenerative changes.

Equally, in my opinion, and I’ve – I can say this with some experience because I do see many of patients who have degenerative conditions of the spine, it’s a large part of my practice, that I would say more likely – more often than not people with degenerative disc disease that you suddenly see on x-ray or MRI have no symptoms. In fact, the larger percentage of people with degenerative changes of the spine are unaware of it. That means they’re having thickening of ligaments, additional bony spearing in the spine, shrinkage of discs and disc bulging, and they are not aware of any symptoms. In fact, they function 100 percent in life, and I’m talking about individuals aging up to the ages of 80 and higher, and incidentally you do an x-ray or an MRI, and you suddenly see all these degenerative changes. So the fact that it’s there, and I think it’s probably undisputed across the medical – in the medical system is that, by and large, degenerative changes of the spine are asymptomatic.

It is extremely rare, in my opinion, that somebody with benign, asymptomatic degenerative changes of the spine will suddenly present with a disc herniation. I can’t rule it out, but it is extremely rare, and for that reason I think, given this history and the findings, it is my opinion that it is more likely that the disc herniation occurred as a result of the sudden trauma to her back, and not this benign, degenerative change that can occur in the spine.

[303] As can be seen from the evidence the controversy between the medical experts over whether the plaintiff’s disc herniation resulted directly from the accident, as contended by plaintiff’s counsel, is complicated by many factors, including the fact that the plaintiff did not complain about low back pain until the end of March 2004; that at the end of March low back symptoms were initiated with the same type of motion at work that had brought on similar symptoms before the accident; that in October 2004, a CT scan showed no disc herniation; that the plaintiff returned to her very physically demanding job shortly following the accident and worked as hard after the accident as she had before, especially in the fall of 2004 when a combination of change in job duties coupled with extra shifts pushed her to the point that at the end of December 2004, her doctor advised her to not work; and that she remained off work until March 5, 2005 when on the eve of her return to work on a gradual basis she fell down some stairs in her home which resulted in her not being able to return to work as planned.

[304] The plaintiff’s causation argument is that all of the plaintiff’s medical experts relate the disc herniation and soft tissue injuries to the accident. However, the disagreement between the parties surrounding whether there is a causal connection between the accident and the plaintiff’s disc herniation requires a close examination of the clinical records of the plaintiff’s medical attendances and treatments following the accident in relation to the conclusions reached by the experts on both sides.

[305] First, I find that the plaintiff’s first complaint of low back pain was to her physiotherapist and family doctor in late March 2004, some two months following the accident, and almost two months after the plaintiff’s return to work.

[306] When the plaintiff attended at Dr. Kwiatkowski’s office on January 20, 2004, following the accident, the doctor noted her low back “to be soft and normal”. She confirmed on cross-examination that she examined the plaintiff and her low back was normal. Although the doctor was somewhat reluctant to confirm that she made no findings about low back symptoms until her record of March 30, 2004 where she states, “Unfortunately pain has now moved from her neck to the lower spine”, I find that the first mention made by the plaintiff about low back pain was on her visit to the doctor on March 30, 2004. I think this is clearly borne out by a review of the doctor’s clinical records, as well as those of the physiotherapist.

[307] In her June 25, 2004 record Dr. Kwiatkowski noted that the plaintiff and her husband were having financial difficulties and the plaintiff had picked up five shifts in a row in the operating room with a lot of heavy lifting, which caused her difficulty sleeping, sitting and walking. A similar note was made in the doctor’s September 13, 2004 clinical record. At the plaintiff’s visit to the doctor on September 24, 2004 the doctor noted, “At this point she may be slowly developing disc problems in these areas, secondary to on and off severe muscle spasm after the MVA.” However, the CT scan performed in October 2004 showed no evidence of disc herniation.

[308] In her November 10, 2004 record Dr. Kwiatkowski noted that the plaintiff was working a lot and was heavy lifting in the operating room and doing other jobs “which don’t help her back.” Then at the plaintiff’s visit to the doctor on December 23, 2004 the doctor noted that the plaintiff had been pushing and doing a very hard physical job and that she had been overworked. She told the plaintiff to take two weeks off. However, although the plaintiff planned a gradual return to work in early March 2005, the events which followed resulted in her not returning to work.

[309] I also find that the first record of a diagnosis of sciatica on the plaintiff’s left side was at her visit to Dr. Kwiatkowski on January 5, 2005. While it is correct that on her visit to Dr. Kwiatkowski on December 23, 2004, the doctor recorded that the plaintiff was walking with a wide gait and was very unstable, in her cross-examination Dr. Kwiatkowski said that although there was no mention of leg pain or sciatica “she must have had severe pains, at least in the pelvic girdle that she is unstable, so she does not have solely lower back pain, but she must have pain going below that, that she is supporting her legs with a wide gait. So she doesn’t have sciatica. Sciatica goes either to…the knee level, or goes to the foot level, in her cause [sic] there is no mention about any of that.” Defence counsel asked her, “But no sciatica in any event?” The doctor replied, “No sciatica going or described.” The doctor also confirmed that January 5, 2005 was her first record of sciatica.

[310] Dr. Kwiatkowski also confirmed that on the plaintiff’s visit to her on January 20, 2005 she recorded, “Her CT of her neck didn’t show any abnormality, this is mainly muscular problem.” She agreed that there was no mention of sciatica on this visit.

[311] When the plaintiff attended at Dr. Kwiatkowski’s office on March 4, 2005 she reported that she had been doing some activity with her grandchildren and got sick after that. She reported that she had lower back pain, upper back pain and pains radiating to the left leg. It does not appear, and the doctor could not recall, that the doctor performed a physical examination of the plaintiff. However, following her fall on the stairs in her home on March 5, 2005, the plaintiff attended at the doctor’s office. This time there is a record of a physical examination and a note of severe spasm of the plaintiff’s back, neck and arms and a description of the plaintiff suffering a “severe injury” as a result of the fall. On the plaintiff’s visit to the doctor on March 14, 2005 the doctor noted that the plaintiff had “thrown back out” on March 5, 2005 and “developed severe sciatica on the left side.” The doctor noted that the plaintiff had been deteriorating steadily since the accident and she did not think the plaintiff should go back to work (on March 4, 2005 the plaintiff was planning a gradual return to her work at the hospital).

[312] Dr. Hershler testified that the disc herniation occurred as a result of the sudden trauma to the plaintiff’s back and not “benign, degenerative change” in her spine. However, it should be noted that Dr. Hershler did not opine on the fact that in October 2004 the CT scan showed no evidence of a disc herniation, despite the fact that the plaintiff had been back at work since February and continuing with her hard physical labour throughout that time. Nor did he opine on the fact that she did not report low back pain until after her return to work, or that the first record of sciatica was in January 2005, shortly after she had reported to her family doctor that she had been pushing and doing heavy lifting or that the first x-ray to show disc herniation was in April 2005, after the plaintiff fell on the stairs in her home and suffered a “severe injury” to her arm.

[313] It should also be noted that Dr. Lee appears to be incorrect in stating that the plaintiff had the onset of back pain with left leg pain radiating into the left foot at the time of the accident. He makes no comment about the fact that the low back pain was not recorded until late March 2004, or that the sciatica was not recorded until January 2005. Nor does the doctor opine on the fact that the October 2004 CT scan showed no evidence of disc herniation, or that the first x-ray showing a disc herniation was that of April 2005, after the plaintiff’s fall down the stairs.

[314] In his cross-examination, Dr. Lee testified as follows:

Q Dr. Lee, if a CT scan of the lumbar spine of Ms. Heppner had been done in October of 2004 and showed no disc herniation and a CT scan done on April the 5^th – sorry, April of 2005 was done and it showed a disc herniation, it would be most likely that the disc herniation occurred between the two CT scans.

A Yes, My Lord.

THE COURT: What were those dates again?

MR. ORSETTI: October of 2004 –

THE COURT: Right.

MR. ORSETTI: - and April of 2005.

Q Dr. Lee, if two CT scans were done of the lumbar spine, being about six months apart, as those previous dates were, the first showing no disc herniation, the second showing a disc herniation and an incident, a fall, where the patient lands on his or her bottom in a sitting position occurs one month before the second CT scan, and immediately after that fall a general practitioner describes the patient’s condition as being a severe injury, observes severe spasms in the lumbar spine, including severe sciatica and there was no other unusual event within that six-month period, would the reasonable conclusion be that the disc herniation was caused by the – more likely than not by the fall?

A I’m sorry. Can you repeat that?

Q I can, yes. There are two CT scans done to the lumbar spine six months apart, the first showing no disc herniation, the second one showing the disc herniation. A fall occurs where the patient falls and lands on her bottom in a sitting position and that fall happens one month before the last CT scan, the second one that shows the disc herniation. A general practitioner reviews the patient and describes the severe injury where a severe spasm of the low back occurs and severe sciatica results and there are no other unusual events within that six-month period, that fall is the only unusual event producing those symptoms, would the reasonable conclusion be that the disc herniation was caused more likely than not by that fall?

MR. SPRAGGS: I’d like to register an objection, My Lord. My friend is entitled to ask this witness a hypothetical. I just wish it to be clear that it’s not with respect to the plaintiff, Eva Heppner’s case, but a pure hypothetical based on exactly what my friend has put to him.

THE COURT: He’s put out the hypothetical for the doctor. He’s asking for an answer.

MR. SPRAGGS: But not with respect to Eva Heppner. Because if it’s with respect to Eva Heppner, there’s other – other considerations. And there’s some – there’s some assertions that have been put to this doctor that, frankly, in my review of the evidence aren’t necessarily the case. So I mean I can deal with those in re-examination, if permitted, but I just wish to have it clear that this is a completely hypothetical question not with respect to Eva Heppner.

MR. ORSETTI: My Lord, I’ll simplify that by saying, assume that set of facts to be true in a patient.

A Assuming that the onset of the symptoms from that disc herniation occurred with – I’m sorry it was a fall?

Q Yes.

A Assuming that the onset of the symptoms from – from the disc herniation onset with – with the fall, then more likely than not the – the fall would be the – the cause of the disc herniation.

Q The fall would be the probable cause of the disc herniation?

A The fall would be the probable cause of the disc herniation if that’s when the symptoms from the disc herniation, meaning typically low back and leg pain, had – had started, that that was the first time that those symptoms had onset.

Q And symptoms indicating a disc herniation would include spasming in the low back and sciatica – sciatic pain?

A Symptoms from a disc herniation may include spasming and sciatica, referring to pain radiating down the leg.

Q You mentioned in your direct evidence that the timing of the onset of symptoms is a factor that’s very important in considering causation?

A Yes, My Lord.

[315] In re-examination, Dr. Lee testified, as follows:

Q Doctor, you were asked a very specific question – a very specific hypothetical question by my friend. And as I understood it, the question you were asked was if you – and I’ll paraphrase a bit here – if you had – if you see a CT scan about six months before and one shows no disc herniation and the subsequent one shows a disc herniation and there is no other unusual events would you expect probably the event – an event like falling down on the stairs between that time to cause a disc herniation and you indicated probably in the hypothetical. But you went on to also indicate absent of other criteria. And you made reference to some items. Was it muscle spasm and pain?

A My Lord, I – I made reference to – to symptoms that would be attributable to the disc herniation in general. And I believe that included muscle spasm, pain and – and sciatica – pain in the left – not left but pain in the leg.

Q And if – if you have, as my friend put it to you, an event, such as a fall down some stairs or a bump on the body where you land on one’s derriere, in what circumstances, if you had significant worsening of back problems, extreme spastic in the back with walking in a wide gait and an unstable gait and sciatica and a lot of pain in that area, would that change your view on whether a fall on a couple of stairs under a derriere would be the sole cause of that disc herniation or the probable disc herniation, as you indicated?

A Am I supposed to be referencing a specific tab?

Q Just with respect to that question and that information.

A And I apologize, but can you repeat that?

Q Certainly, as best as I can. If you had evidence prior to the event, the fall on the stairs where a hypothetical person lands on their derriere, but before that, several months before that, you had a worsening of back problems, you had an extremely spastic back, lower back, a problem with walking and a wide gait and unstable walking, and you had a lot of pain and you had lower back pain consistently reported several months before that fall, would your opinion still be that - that that fall was the sole cause or the sole probable cause of the herniated disc?

A My Lord, the presence of the symptoms described prior to that fall would suggest that that problem was already either in existence or in evolution. And the fall may have either aggravated the symptoms or – or contributed to a worsening of a problem which was already – which had already occurred or was in place, meaning a disc herniation.

[316] Both Dr. Lee and Dr. Maloon testified that the timing of onset of symptoms is important in determining cause. When the plaintiff was examined by Dr. Kwiatkowski right after the accident the doctor found her low back to be “normal”, a fact she confirmed in her testimony. With respect to Dr. Lee’s evidence that the symptoms described prior to the plaintiff’s fall on the stairs would suggest that the problem was already in existence, I note that Dr. Kwiatkowski testified that when she examined the plaintiff on December 23, 2004 the plaintiff did not have sciatica. In any event, it is clear from the evidence that onset of the plaintiff’s complaint of low back pain and the record of sciatica is in one case two months and in the other a year following the accident.

[317] In the result, I find that the evidence does not establish a temporal link between the accident and the onset of the plaintiff’s low back symptoms ultimately leading to the diagnosis of disc herniation and disc herniation surgery. In my opinion, the plaintiff has failed to prove on a balance of probabilities that the accident caused or contributed to the plaintiff’s disc herniation. She has failed to prove that her disc herniation would not have occurred but for the negligence of the defendants.

[318] In arriving at this conclusion I accept the opinion of Dr. Maloon, in preference to that of the plaintiff’s medical experts, that the soft tissue injuries the plaintiff sustained in the accident would not have been “significant enough to alter the natural history of her neck or low back condition” and that the “disc herniation would be the result of the natural history of the lumbar degenerative disc disease and not the result of injuries that she may have sustained in [the accident].”

[319] In her November 4, 2005 medical/legal report Dr. Kwiatkowski states that in the October 29, 2004 CT scan there was no evidence of disc herniation but that the April 1, 2005 CT scan showed significant deterioration. She wrote, “The CT on April 1, 2005 has shown numerous levels of change. At L3/L4 there was a new change with mild annular disc bulge resulting in early flattening of the theca, which means impact on the nerves. There was early bilateral facet joint arthritis and hypertrophy, which means degenerative changes started to rapidly progress after the motor vehicle accident.” However, I think that it is clear from the evidence of Dr. Maloon that a more precise timing of the acceleration is between the two CT scans taken in October 2004 and April 2005. His conclusion that the plaintiff’s symptoms, clinical findings and x-rays revealed no evidence of structural injury to the plaintiff’s back as a result of the accident is, in my view, well-founded. This is particularly so given the evidence of Dr. Kwiatkowski, in cross-examination, that from March 7, 2005, “All the symptoms [the plaintiff] has before have progressively gotten worse”, and agreed that the sciatica and limping had taken a, “sharp turn” for the worse at that March date.

General Damages

[320] The plaintiff claims that she is entitled to an award in the range of $175,000 to $200,000. This claim is based on her position that all of her injuries are a direct result of the accident and that the award should take into account her continuous pain and permanent injury.

[321] Given my findings on causation, I do not agree with plaintiff’s counsel that the plaintiff should be compensated in the upper range of the cases cited by counsel. I also find that the plaintiff did not fully mitigate her damages.

[322] In her clinical note of March 30, 2004 Dr. Kwiatkowski noted that the plaintiff had to work due to financial difficulties. She said that the plaintiff needed to extend her physiotherapy for much longer. In her April 29, 2004 clinical note she noted, “She requires aggressive gym program. She tells me she doesn’t have time to do that but I have convinced the patient that this is the only way for recovery.” In her June 2, 2004 clinical note the doctor noted, “Her physio has been extended, she has a few more sessions coming and then she is also going to a gym for an active gym program once a week.” In her clinical note dated September 13, 2004 the doctor noted that the plaintiff had been off work for the month of August and that she was starting to do much better.

[323] The Port Coquitlam Physiotherapy records indicate that the plaintiff was attending an active rehabilitation program at the aquatic centre. The Eagle Ridge Aquatic Centre Physiotherapy records include a letter to ICBC from the physiotherapist which states, inter alia, that the plaintiff was assessed on July 8, 2004 for appropriateness to undertaking a gym based strengthening/work hardening program. The letter states that the plaintiff’s schedule did not fit into the 9:00 a.m. to 12:00 p.m. active program run through the physiotherapy clinic and that she was also offered one on one sessions in the gym with the centre’s kinesiologist. The plaintiff said that she was so tired by the end of her shifts that she would be unable to attend. The letter also states that the plaintiff would benefit from a structured strengthening and stretching program.

[324] In her September 13, 2004 clinical record Dr. Kwiatkowski also states that the plaintiff had developed acute recurrent muscle injury after the accident from going back to work after her vacation. She says that the plaintiff is unable to attend physiotherapy because she was too tired to attend after work.

[325] In her January 20, 2005 clinical record Dr. Kwiatkowski notes that she had given the plaintiff a prescription for another three months of active gym rehabilitation. In her medical/legal report dated November 4, 2005 she states, “In spite of stopping work and great compliance with all treatment, the patient continued to develop rapid degenerative changes within her neck secondary to soft tissue damage and progressive osteoarthritis.” However, the doctor testified in cross-examination that she was unaware that the plaintiff had not in fact taken the original gym program that she had prescribed. She also testified, as follows:

Q Now, in your direct evidence when you were going through your medical-legal report, you referred to the fact that the plaintiff had been in extreme compliance with all treatments, all done in a timely and proper fashion. Do you remember that?

A Yes.

Q And I’m going to suggest to you that in view of your note of April 2004, April the 19^th, 2004, where you confirm with the plaintiff the importance of the active rehab program, and the fact that she hadn’t in fact taken that program until February of 2005, that would not be extreme compliance in a timely and proper fashion –

A Maybe.

Q - would it?

A Maybe.

[326] In making an award of non-pecuniary damages to the plaintiff, my findings on causation and the fact that the plaintiff did not follow Dr. Kwiatkowski’s initial advice to take the active gym program must bear on the quantum of the general damages award. I am mindful that the plaintiff did attend many sessions of physiotherapy and massage therapy. However, Dr. Kwiatkowski felt strongly that the active gym program was crucial to the plaintiff’s recovery.

[327] I find that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back as a result of the accident which have had an affect on her personal, employment, social and recreational pursuits and activities. However, I also find that the plaintiff has failed to establish that the injuries sustained by her in the accident have caused her disability from employment.

[328] In the result, I find that the plaintiff’s award for general damages should be based on the fact that her condition had improved and recovered to the stage that by March 4, 2005 he felt well enough to return to work on a gradual basis. Moreover, I find that the fact her physical and emotional condition deteriorated after her fall on March 5, 2005 cannot be attributed to the injuries she sustained in the accident.

[329] In all of the circumstances, I find that an award of $75,000 is fair and reasonable.

Wage Loss

[330] Turning to the plaintiff’s wage loss claim, in his report dated December 12, 2007 Mr. Darren Benning, the President of PETA Consultants Ltd., calculated the plaintiff’s past wage loss of $82,136 and future income loss of $159,509.

[331] In computing past and future income loss Mr. Benning made provision for negative contingencies such as non-participation in the labour force, unemployment, part-time work and premature death. The plaintiff’s past income loss calculations were based on the assumption that she would have continued to work as a nurse’s aide in the absence of the accident.

[332] The plaintiff’s future loss of income was calculated as the difference between her estimated future without-accident income and her estimated future with-accident income (if any).

[333] I find that the plaintiff is entitled to an award for past wage loss in the amount of $10,000. The evidence is that the plaintiff returned to work within about a month following the accident and worked until near the end of December 2004 when Dr. Kwiatkowski told her not to return to work. However, by early March the plaintiff was feeling well enough to consider a gradual return to work. In fact, in her clinical note of March 4, 2005 Dr. Kwiatkowski states that the plaintiff was contemplating a slow return to work. She states, “We will try just gradual return for two weeks before she comes back to work. She will do four hours a day starting March 8^th to March 22^nd and I will review the patient on March 21^st.” Thus, I find that the plaintiff would have returned to work on a gradual basis on March 7, 2005, but for the deterioration following the injuries she sustained in the fall down the stairs in her home, which, as it turned out, permanently postponed her return to employment.

[334] In all of the circumstances, I think it is fair and reasonable to award past wage loss in the amount of $10,000 to reflect that the plaintiff was off work for about a month following the accident, and again from late December 2004 to early March 2005, and that in early March 2005 she was poised to make a gradual return to work.

[335] Regarding her future loss of income claim, the plaintiff submits that she is no longer able to hold many of the jobs that were previously open to her because she cannot meet the physical and social requirements of these jobs. For example, her counsel argued, had she chosen to leave work as a nurse’s aid she would have been able to work in a number of other fields including as a cleaner, or a retail sales manager (given her work experience prior to her move to Canada), in addition to work in any number of other occupations that would allow her to use her physical abilities. Counsel said that these are all things that due to her physical limitations caused by the accident she cannot any longer do.

[336] Counsel also contended that an assessment under this head of damage should not only include her calculable future loss of income but also the lost opportunity as a result of her disability arising from the accident to do other things in the future. Counsel argued that the plaintiff should have been able to work to retirement and beyond had the accident not occurred. He said that now that she is disabled as a result of the accident related injuries her ability to earn a living and to consider other work past “retirement age” has been foreclosed. Counsel put forward cases with a range of future income awards of $80,000 to over $1 million. He particularly relied on the decision in Stapley v. Hejslet, supra, where the award was in excess of $300,000.

[337] However, given my finding that the plaintiff has failed to prove to the requisite standard that her disc herniation and resultant surgery was caused by the accident, I do not think it would be fair or reasonable to make an award for future loss of income.

Special Damages and Cost of Future Care

[338] Nor do I think it would be fair or reasonable to award the plaintiff her claim for cost of future care in the amount of $96,218.50. However, I do think she is entitled to her claim for special damages in the amount of $6,500.

IV. CONCLUSION

[339] The plaintiff shall have judgment in the amount of $75,000 for general damages; $10,000 for past wage loss; and special damages in the amount of $6,500. She is not entitled to damages for future wage loss, future care costs or loss of housekeeping capacity.

[340] The amounts awarded to the plaintiff shall be adjusted to reflect the 50/50 division of liability.

[341] In the event that the parties cannot reach an agreement on costs they have liberty to apply.

“B.I. Cohen J.”
The Honourable Mr. Justice B.I. Cohen

Citation:	*Heppner v. Zia,*
	2008 BCSC 782