IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Glesby v. MacMillian,

 

2014 BCSC 334

Date: 20140304

Docket: M112067

Registry: Vancouver

Between:

Jessica Glesby

Plaintiff

And

Kendall MacMillan

Defendant

Before: The Honourable Mr. Justice Baird

Reasons for Judgment

Counsel for the plaintiff:

E.L. Montague

Counsel for the defendant:

J.W.S. Burgoyne

Place and Date of Trial:

Vancouver, B.C.

October 7,8 ,9,10,11,15,16,17, 2013

Place and Date of Judgment:

Vancouver, B.C.

March 04, 2014


 

Introduction

[1]             This is an assessment of damages relating a motor vehicle accident on April 24, 2009 at the intersection of Dunbar Street and West 29th Avenue, Vancouver B.C. Liability has been admitted.

[2]             The plaintiff was a back seat passenger in a vehicle stopped at a red light when it was struck from behind by the defendant’s vehicle. The plaintiff was wearing a seatbelt. She did not strike anything inside the vehicle. Both vehicles were damaged but could be driven from the scene.

[3]             As a result the plaintiff claims to have pain and discomfort in her neck, shoulder and upper back which remain unresolved over four years later. These injuries, she says, have impacted negatively on her quality of life and compromised her ability to earn an income.

[4]             The defendant concedes that his negligence caused the plaintiff injuries for which she is entitled to compensation, but argues that her claims for general and special damages are extravagant and unsustainable; that her present difficulties are attributable to pre-existing conditions for which he is not liable; that her claims for loss of future income earning capacity and future care are without merit and should be dismissed; and that she has failed to mitigate her losses.

Position of the Parties:

Plaintiff

[5]             The plaintiff has claimed non-pecuniary damages of $85,000 - $95,000; special damages of $60,000; damages for loss of future income earning capacity of $200,000; for decreased housekeeping capacity of $10,000; and for cost of future care of $100,000.

Defendant

[6]             The defendant’s has argued that a just and reasonable award would be non-pecuniary damages of $31,500 (being $45,000 reduced by 30% for failure to mitigate); special damages of $17,000; and no award for loss of future income earning capacity, decreased housekeeping capacity, or cost of future care.

Agreement on Past income Earning Capacity

[7]             During the trial the parties settled on an amount of $25,000 net of tax for loss of past income earning capacity. Counsel agreed that the plaintiff had no claim under this heading before September 12, 2011, because until then she worked or went to school full-time without any pecuniary loss. Inherent in this agreement is a concession by the defendant that the plaintiff suffered from an impairment of earning capacity after that date. I will address this factor in greater detail below.

Evidence

The Plaintiff

a. Pre-accident

[8]             The plaintiff is now 28 years old. She was 24 at the time of the accident. She is well-educated, intelligent and artistic. I find that, when her physical health was good, she was a vigorous and energetic person. She enjoyed walking, cycling, dancing, and travelling, and other activities which she now claims are largely beyond her capacities.

[9]             Since her high school years the plaintiff has experienced low periods of depression and anxiety. Her difficulties in this connection are well documented. She also has a history of irritable bowel syndrome. Her older sister has Crohn’s disease. The plaintiff’s doctors are concerned about the possibility that this disease may run in the family. The plaintiff is under the care of a gastroenterologist with whom she consults from time to time. Neither of these pre-existing conditions affected the plaintiff’s competence or capacity in her daily life before the accident.

[10]         The plaintiff has a history of diligence and initiative in the workplace and community. She got her first job in a Dunbar flower shop at the age of 16. Later she was employed by Jenny Craig and was well regarded and swiftly promoted in that organization. She taught ESL and art to children during and after high school. Over the years she has been actively engaged in community art, specialising in “yarn bombing”, otherwise known as graffiti or guerilla knitting.

[11]         The plaintiff graduated high school in 2003, after which she was offered advanced placement at Emily Carr College of Art, where she obtained her Bachelor of Media Arts degree in spring 2007. She then devoted herself to teaching art on a casual basis and working for Jenny Craig as a program director. The plaintiff entered the UBC Faculty of Education in the autumn of 2008. She completed her Bachelor of Education degree and was nearing the completion of her practicum at University Hill Elementary School when the accident occurred. She was an energetic and able student teacher. She won an “Outstanding Practicum Award” from UBC in November 2009.

b. Post-Accident

i) April 24, 2009 - September 12, 2011

[12]         In the months after the accident the plaintiff consulted with her family physician a number of times complaining of tightness and pain in her neck, right shoulder, and back. She reported that the pain was exacerbated by moving and lifting as well as by sitting for more than 10 minutes. However, she had full range of motion on examination and no point tenderness. She experienced frequent spasms in her paracervical and trapezius muscles. She was prescribed anti-inflammatory medication and advised to remain active and attend for physiotherapy and massage.

[13]         After some early improvements in her physical health, the plaintiff claims that her recovery stalled and her symptoms, including the back spasms, have continued to this day. Her rehabilitative efforts have included massage and physiotherapy, chiropractic treatments, Pilates, and acupuncture.

[14]         Following the accident, in the late summer of 2009, the plaintiff and her fiancé, Mr. Ian Wojtowicz, departed for Boston to do post-graduate work. The plaintiff went in for a Master of Arts degree at Boston University while Mr. Wojtowiecz was enrolled at MIT. The plaintiff lived and studied in Boston until spring 2010, a period during which she said her activities continued to be restricted by her injuries. She was unable to cycle or walk as much as she liked, and her lack of physical strength caused stress in her relationship with her fiancé, particularly when it came to intimate relations.

[15]         The plaintiff sought and received treatment at Boston University Student Health Services. It was recommended that she should continue with a core strengthening program and increase her levels of physical activity, which the plaintiff claims to have attempted within the limits of her pain tolerance. The clinical records for this period also refer to a number of medical consultations concerning the plaintiff’s bowel problems, which had started to flare up more frequently than before the accident.

[16]         Notwithstanding these problems, the plaintiff managed her academic work in Boston with remarkable success. She achieved “A” grades in every course. On her return to Vancouver in the spring of 2010, she acquired additional credits from Emily Carr and UBC and garnered praise and high marks for her work. In the fall of 2010 she worked consistently as a teacher on call for the Vancouver School Board. In January 2011 she was granted a contract teaching position at University Hill Elementary, where she had done her practicum.

[17]         The plaintiff’s first appointment with her family doctor on returning from Boston to Vancouver was June 3, 2010. Between that date and April 26, 2011, her physician’s clinical records establish a pattern of regular consultations, but these focused on the plaintiff’s bowel problems and her growing levels of stress and anxiety. She also received advice about facial hair removal and an unrelated knee complaint. It was not until April 26, 2011, when the plaintiff’s doctor gave her a referral for massage therapy, that the plaintiff’s medical consultations returned to the subject of her accident related soft tissue injuries. I note, as well, that on May 30, 2011, the plaintiff’s doctor gave her a note to ICBC recommending massage therapy and a core strengthening regime.

ii. September 12, 2011 onwards

[18]         The plaintiff’s next visit to her family doctor was on September 15, 2011. As previously stated, from the date of the accident until approximately this time, there was no interruption in the plaintiff’s studies and she lost no time at work. She was coping with her problems successfully and getting on with her life.

[19]         A brief digression is necessary here. On September 6, 2011, the plaintiff started a temporary full-time teaching contract at David Thompson Secondary in Vancouver that was to run until the December school holiday. She worked the four day week after Labour Day, but on the first Monday of term, September 12, 2011, she booked off to attend an examination for discovery in the present litigation.

[20]         This absence was recorded in her Vancouver School Board employment file as “leave without pay”. At discovery, in response to questions about her current employment status, the plaintiff testified that she was a full-time teacher. She made no reference to debilitating pain or limitations while teaching, and certainly did not mention or even intimate that she was poised to take an extended leave of absence for medical reasons.

[21]         A couple of hours after she finished her examination, the plaintiff e-mailed the personnel department of the Vancouver School Board to ask if her status for the day could be changed from “leave without pay” to “sick leave”. She claimed, in this e-mail, to be suffering from strep throat and said that she could provide a doctor’s note. I infer that her motivation for making this request was so that she would be paid for the day. There was no mention of any more serious health problems.

[22]         However, the plaintiff never returned to work at David Thompson Secondary. Instead she applied for and was granted a medical leave with the support of her family doctor on the basis of consultations on September 15 and 21, 2011. In clinical notes relating to the consultation on September 15, the doctor noted that the plaintiff’s abdominal pain, diarrhea and anxiety had increased a lot with her new job. The September 21, 2011 clinical notes confirm that the plaintiff could not work due to abdominal cramping, diarrhea and anxiety. The doctor filled in forms for the School Board indicating that the date from which the plaintiff was unable to perform her teaching duties was September 12, 2011, the day on which she attended for discovery and testified for a couple of hours without distress.

[23]         In connection with the medical leave application the Vancouver School Board obliged the plaintiff’s family doctor to complete a “Certificate of Attending Physician”. This document set out that the plaintiff was being treated primarily for exacerbation of Crohn’s disease and secondarily for anxiety. These conditions, the doctor certified, were solely responsible for the plaintiff’s inability to perform as a teacher. There was no mention of the accident-related deficits which the plaintiff now claims were a significant contributing factor to her withdrawal from her job at David Thompson Secondary.

[24]         The plaintiff was cross-examined about this. She agreed that her bowel and anxiety problems had worsened, but said that her accident-related physical limitations played a role in her decision to seek a medical leave. She said that she found herself in unfamiliar surroundings with physical demands beyond her diminished physical capacities, and she had no accommodation from her colleagues who were, of course, unaware of her difficulties. She also testified that, notwithstanding her avowed medical disability, she was obliged her to carry on preparing lessons for her replacement.

[25]         The plaintiff was medically cleared for a gradual return to work in December 2011. From January to June 2012 she had a 0.28 contract at Windermere High School in Vancouver which she supplemented with teacher on-call work. This combination was advantageous, she said, because it permitted her to work at a reduced pace and reintegrate into the workplace on her own timetable. During the 2012-2013 school year, the plaintiff secured another contract teaching at Killarney High School on a 0.7 basis between October and March, and she also did supply teaching here and there. She testified that she managed her teaching obligations well enough by consistently attending for massage and physiotherapy. It was during this period that she started Pilates, which helped a good deal.

[26]         During the present school year, 2013-2014, the plaintiff has not worked. She testified that she decided to take a break to complete her Master’s thesis on yarn bombing, which she said has been delayed by her chronic pain and the countless hours that she has had to spend on rehabilitative treatments and interventions. Part of her claim in this case is that the defendant should reimburse her for additional tuition that she has had to pay Boston University because of this delay. The plaintiff denied that she has been unemployed this year because there have been no openings for junior teachers in her area of specialty.

[27]         The plaintiff testified that her physical health has deteriorated with the passage of time. She has gained thirty pounds since the accident because she is severely limited in the amount she can exercise. She told me that there have been times when she has not been able to lift her camera to take photographs. She has been forced to buy a car because she lacks her previous mobility on foot and bicycle. It now takes her five days to unload a carful of groceries because she can only carry a couple of bags to her apartment at a time. Before her move to Boston in 2009, she claimed to be unable to lift a dinner plate, set a table, or carry her own water bottle.

[28]         The plaintiff’s presentation in court was striking. I had her under observation for most of this eight day trial. She was constantly bending and stretching, alternating between sitting and standing, and, while standing, shifting her weight from one foot to the other. Now and again she stretched out on the floor of the courtroom for reasonably long periods of time. She had a heating pad that she applied to her back and shoulder, including while she was testifying. She gave the appearance of being in constant and quite severe pain and discomfort.

Supporting Witnesses

[29]         The plaintiff called a number of her friends and relatives to testify about changes in her since the accident. Amelia Ewart testified that she and the plaintiff are close friends who met in July 2012. They see one another often. She made it clear that she was unaware until a number of weeks before trial that the plaintiff had been involved in a motor vehicle accident. Her evidence was limited to the observation that the plaintiff seemed to be uncomfortable sometimes and had to stretch while they were walking. She referred to one occasion when the plaintiff claimed to be unable to lift a small box.

[30]         Patricia McLean, the plaintiff’s former employer, testified that she has kept in touch with the plaintiff since she worked at her flower shop in the Dunbar area. She meets with the plaintiff every few months to socialize. She said that the plaintiff does not appear to have her usual energy since the accident. Instead of going for walks they now visit over a cup of coffee. She said that the complainant is not as “perky” as she was, but she was not sure why.

[31]         Ian Wojtowicz was the plaintiff’s fiancé and lived with her before and after the accident. He said that their post-accident activities were circumscribed. They did not walk as often or as far as previously, or cycle together as much. He said the plaintiff had to stretch often and she was more irritable. He was not always sure whether this was related to her injuries or to other factors. He said that their walks were often cut short, not because the plaintiff was in pain, but because they were arguing. Their sex life was negatively affected. He said that the plaintiff’s pain had made their sojourn in Boston much more difficult than expected.

[32]         Harley Glesby, the plaintiff’s father, testified that the plaintiff no longer seems comfortable in her body. She is constantly twisting, turning and stretching. She cannot participate in family functions as she used to. She goes home early from family dinners. She has lost energy and is incapable of her customary recreational and social activities. She has tried to remain upbeat, he said, but becomes frustrated and upset by her lack of progress and improvement.

[33]         Karen Glesby testified that her daughter has been in constant and obvious pain since the accident. She has been negatively affected in every aspect of her life. The plaintiff is “a different person.” She cannot sit still at family dinners, frequently leaving the table to stretch, apply heat or to lie down. She has tried hard to get better by exercise, massage and physiotherapy, and has been saddened and frustrated by her lack of success. She is quicker to temper and less patient than before the accident.

[34]         The plaintiff’s sister, Sara Costin, testified that the plaintiff cannot do nearly as much physical activity now as before the accident. She cannot sit comfortably for any length of time. She is constantly stretching or lying down on the floor. She leaves family functions early because she is exhausted and exasperated. She does not dance at family celebrations as she used to. She is consumed with attending physiotherapy, massage, and other appointments, which she approaches “like a project that she is constantly managing”.

[35]         Brittany Mitchell, a fellow student from the UBC education faculty, testified that the plaintiff looked to be in pain after the accident, and described one occasion where the plaintiff stretched out on the floor of a lecture hall because she was uncomfortable sitting.

Medical and Therapeutic Evidence

[36]         I have read and considered expert opinion evidence from the following care givers:

·       Dr. Max Kleinman, physiatrist;

·       Dr. Cecil Hershler, physiatrist;

·       Dr. Taslim Hameer, general practitioner;

·       Robin Armstrong, chiropractor;

·       Miles Buckman, therapist;

·       Dr. Iain Dommisse, orthopedic surgeon;

·       Dr. Mark Riley, psychiatrist.

[37]         I heard viva voce testimony from all of the above persons except for the chiropractor, Robin Armstrong. All were retained by the plaintiff except for Dr. Dommisse and Dr. Riley, who performed independent examinations of the plaintiff at the behest of the defendant. Additionally, I heard testimony from Katherine Couch-Burrows, a registered massage therapist who treated the plaintiff before and after the accident. With the consent and approval of both counsel, filed in a document agreement at the outset of trial, I have also read and considered a wide variety of clinical records and notes concerning the plaintiff’s therapeutic treatment since the accident.

[38]         From these various sources, I am confident that I have full and fair overview of the plaintiff’s clinical progress, present condition and prognosis. I would note the following areas of agreement or uncontradicted opinion:

·       The plaintiff enjoyed good physical health before the accident and was pain free.

·       The plaintiff suffered a moderate or Grade II whiplash injury as a result of the accident and has suffered from pain and discomfort to her neck, right shoulder and back.

·       The majority of persons who sustain such injuries recover within a year a year or two, but a minority of perhaps 10-15 per cent never recover and experience permanent pain and deficits.

·       Most of the plaintiff’s symptoms are self-reported, and the weight to be ascribed to the various medical opinions based upon those reported symptoms will be diminished should I find that the plaintiff has exaggerated or lied.

·       On the other hand, if is accepted that the plaintiff is a true and reliable historian who continues to suffer in the reported manner approximately four and a half years after the accident, it is likely that her pain is here to stay and unlikely to improve.

·       The plaintiff has a history of anxiety, depression and irritable bowel syndrome. These conditions did not affect the plaintiff’s basic functioning or capacity before the accident, but they are clearly doing so now.

·       The plaintiff’s pre-existing conditions, also called negative prognostic indicators, may have been exacerbated by the soft-tissue injuries sustained in the accident and/or have resulted in diminished resilience to the pain and stress caused by those injuries, thereby creating a ”cycle of pain” and a prolonged period of recovery.

·       The plaintiff does not suffer from any mental illness, pain disorder or somatic symptom disorder.

·       The plaintiff has been diligent in attempting to rehabilitate herself, although not by resort to either a pain clinic or medical cannabis, as recommended by Dr. Kleinman and Dr. Hershler, respectively.

[39]         I will focus, in the following discussion, on the evidence of Drs. Kleinman, Hershler, Dommisse and Riley, but first will comment briefly on the evidence of the other clinicians.

[40]         Dr. Hameer’s report comprises a useful chronology of the plaintiff’s treatment and progress since the accident, gleaned mostly from the plaintiff’s clinical records, as Dr. Hameer herself only became the plaintiff’s consulting physician in late December, 2011. Given her recent involvement with the plaintiff, I found Dr. Hameer’s courtroom testimony, while helpful, to be somewhat peripheral. I have borne in mind, however, that as late as August, 2013, Dr. Hameer referred the plaintiff to massage and physiotherapy because she reported continued suffering from back spasms. The plaintiff has relied heavily on this symptom, which she argues, along with a reduction in range of motion in her neck and cervical spine, constitutes ongoing objective proof of accident-related injury.

[41]         The evidence of Miles Buckman consisted mostly of a repetition of the plaintiff’s narrative of her post-accident feelings and anxieties which was only minimally useful. On the other hand, he has counseled the plaintiff for years, before and after the accident, and I accept his evidence that her anxieties seem to have increased post-accident and to focus on matters, such as where she should live and with whom, that did not seem to trouble her pre-accident. He described this as a “reactive identity crisis”, meaning that the plaintiff’s identity as a fit and responsible human being has been compromised by the accident. He said that she will require additional counselling to overcome this crisis.

[42]         I have kept in mind the observations and opinions of the two chiropractors, and I accept the evidence of their limited involvement in the plaintiff’s treatment. I note in particular the report of Dr. Robin Armstrong, who began a series of consultations with the plaintiff on November 22, 2011, only a month or so after the plaintiff began her disability leave from work, wherein she complained primarily of her unrelated bilateral knee pain and only secondarily of injuries from the accident.

[43]         Dr. Kleinman’s report was based on a single consultation with the plaintiff on January 19, 2012, some 33 months post-accident. He diagnosed soft tissue injury and chronic pain with associated depressive symptomology, though he freely conceded that any psychological dimension to the plaintiff’s problems was beyond his realm of expertise. His report explicitly concedes that the plaintiff’s symptoms were not objective and that he was relying on her truthfulness in coming to his opinions.

[44]         Dr. Kleinman advised the plaintiff to attend a pain clinic, but at the time of trial, over four years post-accident, she had not followed this advice. She testified, at first, that this was because the defendant had refused to pay for it and she could not afford it. Later she said that she resisted the idea of the pain clinic because she was reluctant to admit or concede that her pain was irremediable. She now accepts this and has taken steps to enrol in such a clinic at St. Paul’s Hospital.

[45]         Dr. Kleinman also recommended active therapy focused on increasing strength, flexibility and endurance. He testified that passive treatments such as physiotherapy and massage should only be resorted to secondarily, to supplement an active rehabilitative regime, and that these passive treatments should taper off with time and be used only when “flare-ups are of significant concern”. The plaintiff followed this advice with her stretching exercises and Pilates. Before and after her consultation with Dr. Kleinman, from July 2011 to May 2012, she pursued a core strengthening program, but abandoned it because it was not helping and, in fact, occasionally aggravated her problems. Since then the documentation before me clearly indicates that she has relied predominantly on physiotherapy and massage, precisely the sorts of passive treatments that Dr. Kleinman warned should only be used as back-up. In fact, her recourse to such treatments accelerated sharply after her consultation with Dr. Kleinman. In 2012 she attended for massage therapy on 76 occasions, almost twice as often as in 2011, and for physiotherapy on 61 occasions, compared with 13 treatments in 2010 and none in 2011.

[46]         Dr. Kleinman also recommended that a functional capacity evaluation should be done to identify the precise nature of the plaintiff’s physical abilities and deficits, especially relating to her ability to perform her job as a school teacher. He believed, and I respectfully agree, that such an evaluation would clarify the plaintiff’s ability to cope with daily life, both at work and home, and enable a tailor-made plan for treatment, rehabilitation and, if necessary, accommodation of her reduced capacities. The plaintiff did not take this advice, and her failure to do so was not explained.

[47]         Dr. Hershler examined the plaintiff on May 2, 2013, some five months before trial. His diagnosis was much the same as Dr. Kleinman’s, but without discussion of a possible interrelationship of physical and psychological factors. Soft tissue injury and chronic pain were the culprits, he said, and echoed Dr. Kleinman’s recommendation that the plaintiff should embark upon a core strengthening program. He also encouraged the plaintiff to consider the use of medical cannabis to manage her pain. The plaintiff has not taken this advice, either. She has reservations about the legality of the acquisition and use of cannabis, and, in any event, she is a committed life-long abstainer from narcotics and drugs of all sorts.

[48]         Dr. Dommisse examined the plaintiff on January 31, 2012, a couple of weeks after Dr. Kleinman. He gave the opinion that the plaintiff should have recovered fully from her injuries by the time of trial. There were no objective symptoms of injury, he said, and from the musculoskeletal standpoint there appeared to be nothing wrong with her. On physical examination she did not appear to be in pain and denied that any teaching-related activity aggravated her condition. She displayed a reduced range of motion of her cervical spine, but testing the limits of this range caused her no pain. He observed no back spasms during his approximately 40 minute examination of the plaintiff. He palpated for spasms but detected none. He agreed in cross-examination that back spasms can come and go, depending on what caused them. He specified, however, that he would not expect this symptom to be absent on examination and palpation if it were caused by soft tissue injury.

[49]         Dr. Dommisse conceded in cross-examination that a minority of grade II whiplash sufferers do not recover full functionality, usually because of pre-existing frailties or “negative prognostic indicators” specific to the individual, including anxiety, depression and irritable bowel syndrome. These negative indicators, Dr. Dommisse agreed, can prolong the pain and physical distress caused by soft tissue injuries, while the pain of such injuries can exacerbate pre-existing conditions, setting off a cycle of pain that can be difficult to break.

[50]         The existence of this cycle of pain was endorsed by Dr. Riley, who met with the plaintiff on August 22, 2013, less than two months before trial. While his evidence went mostly to establish that the plaintiff suffered from no mental illness, pain disorder or somatic symptom disorder, he testified that persons predisposed to anxiety, depression and gastrointestinal problems may react negatively to the additional stressor of chronic pain. In the plaintiff’s case, he said, as these predispositions did not affect her daily life before the accident, it was reasonable to suppose that the additional stressor of chronic pain may be the explanation for her prolonged incapacity. He agreed that the plaintiff was not disproportionately fixated on her “pain experience”, was motivated to recover, and had taken appropriate steps towards rehabilitation. I note, as well, Dr. Riley’s testimony that the plaintiff “needed to do some stretching” during their 2.5 hours together.

The Yarn Bombing Video

[51]         The defendant submitted in evidence a clip of video footage showing the plaintiff out and about on the UBC campus talking about yarn bombing. This video was shot on November 24, 2010, by reporters for the campus newspaper. In this video the plaintiff appears to be relaxed, comfortable, enthusiastic, and pain free. There is no sign of distress or discomfort. When asked to comment upon this video clip, the plaintiff said that she was trying to be professional and positive, that she “wanted to be proud of herself”, and that she was “clinging to her identity”. She also thought that the film crew might have edited out footage in which she exhibited discomfort.

Evidence from the Vancouver School Board

[52]         The defendant called Mr. Christopher Alderman, the assistant staffing manager with the Vancouver School Board. He contradicted the plaintiff’s assertion that she had been obliged to continue preparing lessons for David Thompson Secondary after she was approved for medical leave. This is not how things work. Once a teacher is on medical leave, there are no further classroom related requirements. The Board requires that the teacher should focus on getting well.

[53]         Mr. Alderman also gave evidence relevant to the plaintiff’s contention that she has taken the present school term off work to complete her master’s thesis. While it is true that she has not worked for the Vancouver School Board so far this year, Mr. Alderman testified that there has been nothing voluntary about this. The plaintiff has applied for no less than 18 contracts with the Board since June. Her latest application was on October 1, 2013, one week before this trial started. She has not been hired because she is either not properly qualified for the contracts on offer or more senior teachers are ahead of her in the queue. There are 50 art teachers employed full-time within the Vancouver School District, most of them covering other subjects as well, and almost as many on the “Teacher on-Call” list. There is not much demand for art teachers.

Discussion

[54]         This is a common but nevertheless difficult species of case. The plaintiff appears to have been involved in a low-medium velocity accident resulting in moderate whiplash injuries from which most people recover fully. But here the plaintiff says that she continues to suffer miserably. She claims that every aspect of her daily life continues to be negatively impacted by accident-related pain, and that her condition is getting worse. She says that she has been materially and permanently compromised in her ability to earn income as a school teacher. She has spent large sums on physiotherapy, massage, acupuncture, Pilates, strength training and counselling. She says that the defendant should be held liable to pay such costs to date and for years to come. She seeks an aggregate award of close to $500,000.

[55]         The defendant responds that an objective assessment of the evidence shows that, after this relatively minor collision, the plaintiff was able successfully to get on with her life after a brief convalescence. In the two and a half years post-accident, she moved to Boston and took a master’s degree in education, achieving stellar marks, and when she returned, she worked full-time in Vancouver as a contract teacher and excelled in all her tasks.

[56]         The defendant says that if the plaintiff experienced a decline in competence and capacity starting in the fall of 2011 it was not caused by the accident, but by a worsening of her antecedent problems with anxiety and irritable bowel syndrome for which he is not responsible. The medical evidence plainly supports this theory, he says. He places particular emphasis on the paucity of musculoskeletal complaints in the plaintiff’s clinical history after she returned from Boston, as well as her GP’s September 2011 certification to the Vancouver School Board that the plaintiff’s Crohn’s symptoms and anxiety were solely responsible for the disability that prevented her from working.

[57]         In the alternative, the defendant says that the plaintiff is exaggerating her injuries and has failed to mitigate her losses by not following Dr. Kleinman’s advice to go to a pain clinic and take vocational capacity testing.

[58]         It will be obvious that the credibility of the plaintiff and the reliability of her testimony are central to the determination of this case. In assessing the plaintiff’s credibility, I bear in mind, first of all, that her case depends mostly, if not completely, upon her subjective assessment and reporting of her injuries. The expert opinions that I have considered are based on the accuracy of the plaintiff as an historian of her own condition and progress. The law requires that I approach such evidence with some caution, and I have done this.

[59]         I find that aspects of the plaintiff’s testimonial evidence were exaggerated or untrue. I do not accept, for example, that her physical deficits were ever such that she could not set a table, lift a dinner plate, or carry a water bottle. I do not believe that it takes her five days to unpack groceries from her car. Her explanation for her apparently pain-free demeanour during the yarn bombing video I found more curious than persuasive. I do not accept that her refusal to attend a plain clinic had anything to do with cost, especially when I consider the large sums that she has spent on other treatments, including the many expensive consultations with Miles Buckman which, quite frankly, do not seem to have helped much.

[60]         Mr. Alderman’s evidence, which I accept without hesitation, leads me to reject the plaintiff’s evidence that she was obliged to prepare lessons at David Thompson School after being granted a medical leave. I furthermore dismiss as untrue her assertion that her present unemployment from teaching is voluntary, or caused by her desire to devote herself full-time to the completion her master’s thesis. She is out of work because, at present, the Vancouver School Board has no work for her.

[61]         I find that I cannot rely entirely on the plaintiff’s testimonial evidence. Accordingly, I turn to other evidence to attempt to determine where the truth lies and whether or not, in the aggregate, such evidence tends to support the plaintiff’s claims of ongoing accident related disability.

[62]         I would begin with the observation that, over the years, the plaintiff seems to have presented herself in different ways to different people. While the plaintiff’s mother and sister gave evidence that is consistent with her own narrative of pain and suffering, in my assessment her father and fiancé were more reserved. They testified to a significant difference in the plaintiff’s demeanour, competence and ability after the accident, to be sure, but neither of them described the acuity of ongoing pain and discomfort that was testified to by the plaintiff, her mother, and sister, or, for that matter, that was displayed in my courtroom during this trial.

[63]         I found the evidence of the remaining supporting witnesses to be curiously muted and lacking in emphasis. Ms. Ewart did not even know that the plaintiff had been in an accident until being told as much shortly before trial, prior to which I infer that she had noticed nothing amiss. Ms. McLean’s observations of the plaintiff’s physical comportment were similarly flat and ambiguous, and fell a long way short of corroborating the plaintiff’s urgent portrayal of her difficulties. Ms. Mitchell, for her part, did not seem to know the plaintiff particularly well, and her specific observations of the plaintiff’s physical demeanour were limited and not terribly persuasive. If these witnesses had ever, on any occasion, observed the unremitting pain symptoms testified to by the plaintiff and others and displayed during this trial, they did not say so. Furthermore, the plaintiff did not present with such apparently advanced symptoms during a 2.5 hour consultation with Dr. Riley only six weeks or before trial.

[64]         In the face of the complainant’s claim to be badly injured and permanently disabled, and given the constant and acute pain symptoms by which she appeared to be afflicted during trial, I find the absence of consistent, cogent, independent corroborative evidence to be troublesome. When I consider the medical evidence, furthermore, I find it remarkable that the plaintiff consulted with her family physician on an approximately monthly basis during the year or so after her return from her graduate studies in Boston in the spring of 2010, but accident-related injuries were never mentioned or noted. The plaintiff testified that this was because her GP has a “one complaint per visit” policy, but I cannot accept this. If she suffered from the sort of serious soft tissue pain that she described in evidence and displayed by her demeanour in court, she would have sought her doctor’s help for it during this period, failing which her doctor would have noticed her obvious distress and taken action.

[65]         I have come to the reluctant conclusion that the plaintiff is exaggerating the nature and extent of her physical difficulties caused by the accident and that she has attempted to mislead me on some important points. I have come to the conclusion that her demeanour and presentation in court, to some degree at least, was histrionic. On the basis of the evidence which I do accept, I find that the accident of April 24, 2009 caused the plaintiff grade II whiplash injuries, and that it is reasonable to suppose that her recovery was prolonged by the sort of “pain cycle” described by Drs. Dommisse and Riley.

[66]         However, as of September 12, 2011, when the plaintiff started her disability leave from work, the medical evidence clearly suggests that plaintiff’s problems in life have been caused by the worsening of her pre-existing gastrointestinal complaints and anxiety, which are unrelated to the accident and in no wise attributable to the defendant’s negligence.

[67]         If left to my own devices, I might well have drawn the boundary of the defendant’s liability for the plaintiff’s pain, suffering and loss around the time that she departed David Thompson Secondary on medical leave on September 12, 2011. However, as I said earlier, it seems to me to be inherent in the parties’ mid-trial settlement of damages for past income loss that the plaintiff’s accident related problems must have persisted for some time thereafter. Accordingly, I am prepared to accept that, on the basis of the plaintiff’s earning history, the agreed amount would be roughly equivalent to the net income that the plaintiff might have earned had she been employed full-time as a teacher during the entire 2011-2012 school year, or roughly three years after the accident. As far as I am concerned this is the outer limit of the defendant’s liability.

[68]         On the totality of the evidence, the plaintiff has failed to establish that the defendant should be held liable for her subsequent deficits or impairments, whatever they may be, or that the defendant’s negligence has caused a real and substantial possibility of a future event leading to an income loss.

[69]         I decline to find that the plaintiff failed to mitigate her losses by not taking medical cannabis. Dr. Hershler’s advice came after the end of what, for the reasons just stated, I consider to be a reasonable recovery period. In any event, I accept as sincere the plaintiff’s reservations about the acquisition and use of cannabis.

[70]         Her failure to follow Dr. Kleinman’s advice that she attend a pain clinic and take vocational testing is a slightly different matter. Participation in a pain clinic would have shed valuable light on the plaintiff’s physical condition and prognosis, and functional capacity testing would have been useful in determining the extent, if any, of her physical limitations, especially relating to her ability to work. While I did not draw an adverse inference from the plaintiff’s failure to pursue these options, it did have an impact on my evaluation of the case. Combined with my misgivings about the plaintiff’s testimonial credibility, and the absence of consistent, independent corroborative evidence concerning her claim to be seriously and permanently injured, and the fact that, as the years have passed, her clinical history strongly suggests that her present problems are primarily gastrointestinal in nature, the plaintiff’s failure to follow Dr. Kleinman’s recommendations has contributed to an ambiguous record in this case which falls short, all things considered, of establishing the full extent of her claim on a balance of probabilities.

[71]         It follows that I will award the plaintiff non-pecuniary and special damages, in addition to the agreed past wage loss, but her claims for loss of future income earning capacity, decreased housekeeping capacity, and cost of future care are dismissed.

Non-pecuniary Damages

[72]         In Stapley v. Hejslet, 2006 BCCA 34 noted the following concerning the purpose of non-pecuniary damages:

[45] Before embarking on that task, I think it is instructive to reiterate the underlying purpose of non-pecuniary damages. Much, of course, has been said about this topic. However, given the not-infrequent inclination by lawyers and judges to compare only injuries, the following passage from Lindal v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual's loss is the key and the "need for solace will not necessarily correlate with the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a "tariff". An award will vary in each case "to meet the specific circumstances of the individual case" (Thornton at p. 284 of S.C.R.).

[46] The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[73]         In this case, the plaintiff cited the following cases in support of her submission for an award under this head of $85,000.00 to $95,000.00: Dorosh v. John, 2013 BCSC 1442; Newmann v. Eskoy, 2010 BCSC 1275; Clark v. Kouba, 2012 BCSC 1607; Pett v. Pet,  2009 BCCA 232; Perry v. Perry, 2011 BCSC 432; Andrusko v. Alexander, 2013 BCSC 985; Esau v. Myles, 2010 BCSC 43; Kardum v. Asadi-Moghadam, 2011 BCSC 1566; Gauthrie v. Narayan, 2012 BCSC 734; Jorgensen v. Coonce, 2013 BCSC 158; Aubin v. Ball, 2013 BCSC 962.

[74]         In support of an award of an award for $45,000.00 under this heading, the defendant relies on Sekhon v. Nguyen 2013 BCSC 281 and Dakin v. Roth 2013 BCSC 8.

[75]         Considering the factors outlined in Stapley, I note the following. The plaintiff is now 28 years old and suffered from accident related deficits and pain for a period of three years. Her period of recovery was prolonged because of her pre-existing conditions of irritable bowel syndrome and anxiety, and the defendant was responsible for this extended pain and suffering. Because of the accident, the plaintiff was compromised in her ability to enjoy the pleasures of everyday life, and she lost three good years during which she ought to have been enjoying her physical capacities at their peak. The defendant’s negligence deprived her of the optimal enjoyment of her year away in Boston, and caused her problems on her return to Vancouver as well. These are factors which, in my view, militate for an award higher than that which has been argued for by the defendant, and non-pecuniary damages are hereby set at $60,000.00. I include in this an amount for past decreased housekeeping capacity.

Special Damages

[76]         It is well established that an injured person is entitled to recover the reasonable out-of-pocket expenses incurred as a result of an accident. This comes from the principle that an injured person is to be restored to the position he or she would have been in had the accident not occurred: X. v. Y, [2011] SCBC 944 at paragraph 281; Milina v. Bartsch (1985), 49 BCLR (2d) 33 (SCC) at p. 78. I will allow all of the expenses claimed by the plaintiff to the end of June 2012, which, as previously stated, I have determined to be the end of a reasonable recovery period in the circumstances of this case. These are as follows:

 

Kitsilano Physiotherapy Clinic

$100.00

 

Rehab treatments in Boston

4,564.33

 

QI Integrated Health

1,434.60

 

Body and Soul Health and Fitness

4,323.20

 

Treloar Physiotherapy Clinic

1,716.00

 

Dr. Miles Buckman

5,000.00

 

Parking

142.00

 

Total

$17,280.13

[77]         For clarity, I have taken these figures from the table set out in trial Exhibit 4, Tab 22, and netted any expenses incurred after June 30, 2012. I have specifically omitted to include the additional tuition fees payable to Boston University. In my view the defendant is not responsible for the plaintiff’s failure to complete her thesis in a timely manner. I have also allowed only $5,000.00 of the amount claimed for counselling expenses with Dr. Miles Buckman, including the claim for parking. In my assessment, the amount claimed was excessive and far greater than that the defendant ought reasonably to be required to pay. The evidence was by no means clear about what, specifically, the plaintiff and Dr. Buckman discussed or accomplished during their sessions together, or the extent to which their therapeutic relationship after the accident was devoted to her “reactive identity crisis” or to other issues. The matter was not much clarified by Dr. Buckman’s rather vague testimony and the absence, in his counselling practice, of note-taking or record keeping.

Summary

[78]         My award in this case is as follows:

Non-pecuniary Damages

$60,000.00

Past Wage Loss

25,000.00

Special Damages

17,280.13

 

 

Total

$102,280.13

[79]         The plaintiff will have her costs unless there are issues of which I am unaware.

“Baird J.”